Alan Schorr’s Employment Case of The Week ending August 28, 2015
Grande v. St. Clare's Health Sys., 2015 N.J. Super. Unpub. LEXIS 2084 (App. Div. August 28, 2015)
This week’s case explores the law protecting injured employees whom the employer claims have become a danger to themselves and others based upon their medical condition. Due to a dissent, this case is likely to go to the Supreme Court.
Maryanne Grande was a registered nurse with St. Clare’s Health System for ten years and worked in various departments. Over a three year period, Ms. Grande suffered three separate shoulder injuries, all of which she fully recovered from. In her final year, 2010, Ms. Grande injured her back preventing a patient from falling. Her physician cleared her for light duty after about four months and cleared her for full duty a few weeks after that.
The employer refused to accept her physician’s letter and directed Ms. Grande to attend a “functional capacity evaluation test”. The test determined that Ms. Grande could not perform certain parts of her job, but deferred to Ms. Grande’s treating physician. The treating physician again affirmed that Ms. Grande was cleared to return to full duty. Nevertheless, the Hospital terminated Ms. Grande because “she would require specific restrictions which defendant was unable to accommodate.” Ms. Grande filed suit alleging disability discrimination and perceived disability discrimination.
In a motion for summary judgment, the trial judge dismissed the case, holding that the medical tests proved that Ms. Grande could not perform her core responsibilities without creating a substantial risk of serious injury to herself, her patients, or fellow employees. Ms. Grande appealed. The Appellate Division, in a 2-1 decision, reversed. The majority ruled that, since the testing facility had “facially equivocal findings” and left the final decision to the treating physician, and since that treating physician cleared Ms. Grande for work, it created an issue of fact for the jury and the Court erred by resolving the issue of fact in the employer’s favor.
The dissent by Judge Ashrafi is frankly nonsensical. Judge Ashrafi opined that, since Ms. Grande had been injured three times before, the Hospital was within their right to “predict” that she would be hurt again and was therefore a danger to herself and others. Judge Ashrafi wrote that the Court “should not second-guess” the decision of an employer to discharge an employee based on an adequate report and the employee’s work and medical histories. The dissent reasoned that four injuries in three years is enough to predict future injuries.
What makes the dissent nonsensical is that the injuries were different. The first three injuries affected her shoulders. The final injury was the first back injury that Ms. Grande had ever suffered and her physician declared her fully healed. So Judge Ashrafi concluded that three shoulder injuries and a back injury were predictive of a future back injury without providing any basis for this conclusion. Due to the dissent, however, the defendant will now have an appeal as of right to the Supreme Court.
What I do not understand is why neither opinion addressed the perceived disability claim. It makes sense that if Ms. Grande claimed she did not need an accommodation because she was not disabled, then the issue of reasonable accommodation need not be addressed. But, in this case, the employer perceived Ms. Grande to be disabled, but the Court made no mention or analysis as to why the hospital could not engage in an interactive process to determine whether they could accommodate whatever disability they believed she had.
Issues of disability and perceived disability continue to baffle employers and judges alike, making these cases all the more difficult to predict.
Plaintiff’s attorney: Noel C. Crowley, Crowley & Crowley.
Defendant’s attorneys: Sean R. Gallagher, McCarter & English, Gillian McKean Bidgood, Polsinelli, PC, Thomas F. Doherty.
Judges: Fuentes and Kennedy, for the per curiam majority opinion. Ashrafi on the dissenting opinion.