Schorr & Associates’ Employment Case of The Week ending May 25, 2017
McLaurin v. General Nutrition Ctrs., Inc., 2017 N.J. Super Unpub. LEXIS 1279 (App. Div., May 25, 2017)
This week, in McLaurin v. General Nutrition Ctrs., Inc., the New Jersey Appellate Division in an unpublished opinion affirmed summary judgment in a disability discrimination case. It highlights the interplay and importance of doctor’s notes and proper handling of plaintiff’s medical treatment discovery in reasonable accommodation and disability discrimination cases.
Joshua McLaurin began working for a retail store operated by General Nutrition Centers in November 2012. At the time of his hire, Mr. McLaurin did not disclose (nor was he legally required to) that two years earlier he had been treated for knee pain and also anxiety, for which he had been prescribed Xanax on an as-needed basis. His performance must have been satisfactory because within two months he was promoted to store manager. However, during his 90 day probation period as manager his anxiety and knee pain intensified to the point where he was taking Xanax daily for twice-weekly panic attacks.
By mid-March 2013, his anxiety had gotten the better of him. On March 15, he closed the store early, claiming that there were bees in the store and he was allergic to bees. No evidence of bees was found. On his next scheduled day of work, he notified his direct supervisor that he would not be in “because he was sick and in need of a doctor”. He then missed the entire week and was told he would need a doctor’s note in order to return. Mr. McLaurin’s doctor provided a note which merely stated, “Excuse [plaintiff] from work 3/18/13 thru 4/20/13 when he will be re-evaluated. At no point did McLauren or his physician advise as to what McLauren’s medical problem was and no accommodation was ever requested.
The employer advised that McLaurin was ineligible for Family Medical Leave Act protection, which was correct - McLaurin had been there for less than one year and therefore was unprotected by the FMLA. On March 25, 2013, GNC issued a Separation Report, which indicated that plaintiff had voluntarily resigned for medical reasons effective March 15, 2013 - his last day of work. The plaintiff filed suit. During discovery, the plaintiff’s attorney never retained a medical expert and never identified his treating physician as a potential fact witness.
At the end of discovery, the trial court granted summary judgment, holding that, although McLaurin had established that he had a disability, he could not demonstrate that he ever advised his employer that he was disabled and never requested an accommodation for his disability. The Appellate Division affirmed for basically the reasons, except that the Appellate panel ruled that McLaurin had not even established that he had a disability. Furthermore, the Court ruled that the attorney’s failure to properly identify the treating physician as a fact witness in discovery responses barred the physician from testifying and therefore there would be no way for McLaurin to prove his disability.
It is difficult to discern here where McLaurin’s abject failure to inform his employer about the nature of his disability was due to his doctor’s poor communication or due to McLaurin’s determination to keep his disability a secret from his employer. In any event, the failure to inform an employer of a disability or to request any kind of an accommodation is a recipe for failure under the New Jersey Law Against Discrimination. While an employee does not need to use the magic words “disability” or “reasonable accommodation” in order to be protected under the NJLAD, the Courts will not require an employer to be clairvoyant.
I find that many physicians are reticent to provide medical information in work absence notes. Perhaps they are concerned about health privacy, or perhaps the employee does not want the employer to know the details of sometimes embarrassing medical problems. But most importantly, I find doctors, for the most part, are either ignorant or disdainful of the legal importance of the work notes that they prepare. Often these notes are prepared by a receptionist or nurse and then signed by the physician.
Attorneys who are retained during a health problem and before the employee is terminated should get actively involved in making sure that the medical documentation is clear regarding the nature of a disability and any accommodations, including leave, that is needed. Sometimes it takes several tries, but it is important to be insistent that the physician produces a note that is legally sufficient to protect an employee’s rights under the NJLAD.
Employees who are struggling with reasonable accommodations and leave issues at work should retain an attorney before being terminated. An employment attorney can help ensure that the employer is properly notified so that all rights are protected.
Appellate Judges: Simonelli and Gooden Brown.