Gavin v. AT&T Services, Inc., 3:10-cv-03140(MLC)(DEA) (D.N.J. June 11, 2012)

This week’s case highlights the very substantial differences between New Jersey’s Federal and State Courts. It also serves as a primer for everything that should not be done while litigating a discrimination case in New Jersey. Although released a few weeks ago, the case just came to light this week.

Ann M. Gavin worked for AT&T and other subdivisions for over 24 years as a Senior Labor Relations Manager. Essentially, Ms. Gavin alleged that she suffered from a variety of ailments that substantially limited her ability to walk. She requested reasonable accommodations vis a vis telecommuting, which was denied. Unable to continue working without the accommodation, Ms. Gavin resigned.

In the Court’s decision, Ms. Gavin’s claim was thrown out on summary judgment because the Court held that a clause in her employment application limited the statute of limitations on Law Against Discrimination (LAD) claims to 6 months and also that under the Americans With Disabilities Act (ADA), Ms. Gavin was not “disabled” because, although painful, she was still able to walk. This case sets a terrible precedent, and therefore it is important to understand why and how this outcome could have been avoided.

There really is no good reason to ever bring a claim under the ADA instead of the LAD because the protections of the LAD are much broader. Even the Defendant in this case conceded that the Plaintiff was disabled as defined by the LAD. The ADA, however, requires that a “major life activity” be “substantially impaired” whereas the LAD has no such requirement and instead has a much broader definition (The ADA was amended in 2009 to broaden the definition of “disability” and remove the “substantially impaired” requirement, but the Court ruled that the amendment did not apply since the event took place in 2008). Nevertheless, the Plaintiff had to jump through the hoops of the EEOC in order to proceed with the ADA claim, and then filed in Federal Court, which I repeatedly warn is not a venue that is friendly to employment claims, and especially unfriendly to disability claims.

Nevertheless, the LAD claims still would have held up, but for a clause in Ms. Gavin’s employment application that purported to limit employment claims to a six month statute of limitations. Obviously, the prudent course of action would have been to simply file within the six months. Nevertheless, the Court held that parties can contract away statutory rights, including the reduction of statutes of limitation. There are many legal and factual arguments that could have been made, but Plaintiff’s counsel conceded the point, and instead argued that the employment application was not a contract, and was later superceded by another contract. The Court disagreed.

There is Federal precedent for the contractual reduction of statute of limitations. See Great Western Mortgage Corp. v. Peacock, 110 F.3d 222 (1997). But there is also strong precedent that the waiver of a statutory right must be clear, unambiguous, and voluntary, and such an argument would have been especially strong under the circumstances here. See, e.g. Caldwell v. KFC, 958 F. Supp. 962, 972 (D.N.J. 1997); Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 131 (2001)(a waiver of statutory rights”must be clearly and unmistakably established, and contractual language alleged to constitute a waiver [of such rights] will not be read expansively.”) Here, the language even carved out claims enforceable by the EEOC, and the EEOC frequently enforces LAD claims through its work sharing agreement with the NJ Division on Civil Rights. Unfortunately, none of these arguments were made by Plaintiff’s counsel, who instead conceded the issue, and now there is an unpublished opinion which appears to create bad precedent.

This case presents another glaring example of why New Jersey employees should rely upon State law and State Court wherever and whenever possible.

Plaintiff’s counsel: Joseph J. Bell, The Bell Law Group, P.C.

Defendants’ counsel: Keith J. Rosenblatt, Littler Mendelson, P.C.

Judge: Mary L. Cooper, U.S.D.J.