Alan Schorr’s Case of The Week ending October 26, 2012

Owens v. New Jersey Department of the Treasury, Burlington County, New Jersey, Dkt. BUR-L-3799-08.

Gail Owens scored a significant victory against the New Jersey Department of the Treasury this week. On Wednesday, October 24, 2012, on the eve of trial, the parties agreed to a settlement of $650,000.00. This Law Against Discrimination case was interesting in that it was essentially a personal injury action taken against an employer who had refused repeated requests for reasonable accommodation, which allegedly resulted in permanent physical injury. Because the matter was settled, all facts contained herein are alleged, and not proven.

There are no published opinions relating to cases where a plaintiff has recovered for physical injuries caused by an employer’s failure to reasonably accommodate an employee’s disability, but our firm has successfully litigated about a dozen such lawsuits. The essence of these suits is that the New Jersey Law Against Discrimination expressly provides for “all remedies available in common law tort actions,” and therefore anticipates that employees could suffer recoverable physical injuries as a result of being victimized by discrimination. See N.J.S.A. 10:5-3; 10:5-13.

Gail Owens had been a Pensions Benefits Specialist with the Department of the Treasury since 1999. Although she was proficient in many areas regarding pensions benefits, her primary job function was as a phone counselor, in which she spent 92% of her time on the telephone, answering questions from State employees regarding their pensions. In June 2006, Ms. Owens developed laryngitis. She brought in a doctor’s note requesting three weeks of voice rest. Although other employees had been accommodated for similar problems, her supervisors and managers refused to accommodate her disability, and instead forced her into an unpaid leave. Unable to afford unpaid leave, Ms. Owens decided to continue to work on the phones and brought in a corresponding doctor’s note permitting her to return to work despite her increasingly bad laryngitis.

Over the next four months, Ms. Owens complained repeatedly to management, human resources, and the equal opportunity office, requesting accommodations, transfer, and complaining of discrimination. Management refused to engage in an interactive process, canceling a meeting with the union to discuss Ms. Owens’ requests, and ignoring her discrimination complaints. In the meantime, because Ms. Owens could not rest her voice, it continued to deteriorate, and by November 2006, her voice had all but disappeared, reduced to a raspy whisper. In November 2006, Ms. Owens’ was diagnosed with permanent vocal cord paralysis, which meant that she will never be able to speak normally again.

Again, Ms. Owens requested a transfer to a non-speaking position, which she alleged were readily available. Again, management refused to accommodate her disability and again forced her out on unpaid leave, and counted the unpaid sick leave against her anniversary date. Again, Ms. Owens made complaints of discrimination internally, and finally filed a claim with the New Jersey Division on Civil Rights. The Head of Human Resources wrote in an e-mail:

“Pensions is not going to be happy to reassign her, but given they have vacancies elsewhere and her title is Pensions specific and can be used where they have vacancies, they will be hard-pressed to convince us they can’t accommodate her reassignment request… However, we are bound by ADA law to make a reasonable accommodation. Reassignment to a position they need filled, even if they don’t personally like the woman, is in accordance with the law.”

In January 2007, after suffering two months of unpaid leave, Ms. Owens was finally provided a non-speaking job. This lawsuit followed in 2008 after the Division on Civil Rights matter could not be resolved. The Defendant vigorously defended, denying that it had violated any laws. The Defendant argued that it was not obligated to accommodate because Ms. Owens was not able to perform her essential job functions, which was as a phone counselor. Plaintiff countered that her job was as a Pensions Benefits Specialist, which encompassed many other duties. The Defendants argued that having to train Ms. Owens for a new position was an undue hardship. The Defendants also argued that Ms. Owens suffered no adverse job action, in that they gave her the only accommodation they could given her job, and that when the injury was deemed permanent they accommodated within days. The experts also disagreed. Plaintiff’s expert opined that the failure to provide voice rest was the cause of the vocal cord paralysis. Defendant’s expert opined that the permanent injury was not related to lack of rest, but probably of a viral issue or other disease.

The Defendants filed a motion for summary judgment, and Plaintiff cross-moved for liability and for sanctions for certain discovery issues. In a written opinion, Judge John E. Harrington, J.S.C. denied both summary judgment motions, and the matter was scheduled for trial. One of the most interesting legal issues involved the Defendant’s argument that there was no adverse job action, and Plaintiff’s argument that, once it is proven that an employer failed to reasonably accommodate, it is not necessary to prove an additional adverse action. The Supreme Court, in Victor v. State, 203 N.J. 383 (2010), addressed the issue in detail, but failed to resolve the issue. The Victor opinion, however, expressly recognized that there could be an unusual case like this one, where an employee continues to toil on despite being denied a reasonable accommodation, and suffers compensable injuries as a result, and therefore could satisfy the requirement of adverse action.

The summary judgment opinion does a very good job of setting forth the facts and arguments of the parties, and, while the legal decisions break no new ground, this case provides a very good example of a situation in which an employee can recover tort damages in a discrimination case.

Plaintiff’s counsel: Alan H. Schorr, Alan H. Schorr & Associates, P.C.

Defendant’s counsel: L. Benjamin Allen, D.A.G.; Jacqueline Augustine, D.A.G.

Trial Court Judge: John E. Harrington, J.S.C.