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November 2012

Gordon & Rees Florham Park Team Wins Dismissal of Disability Discrimination Case

After two years of litigation, on Oct. 24 a team of New Jersey Gordon & Rees attorneys won an order dismissing a disability discrimination action. Partner Douglas Motzenbecker, trial counsel for the employer, led a team that included associates Daniel DiMuro and Sarah Wieselgren and paralegal Marilyn Sendell.

The plaintiff, a registered nurse, alleged she sustained a head injury when she slipped and fell while performing her duties. She claimed her employer, a hospital, failed to offer her a reduced shift when she attempted to return to work. The plaintiff maintained that, under the New Jersey Law Against Discrimination, the hospital was required to allow her to work six-hour shifts during the first and second weeks of her return to work, and to allow her to resume her regular 12-hour shifts thereafter. The plaintiff's expert also recommended that she resume her duties on a phased-in basis.

The employer, however, relied on the report of a neuropsychologist who advised that the plaintiff could return without restrictions. The employer had allowed her to take a nine-month leave of absence when it was legally required to grant her only two months' leave. The hospital also assigned a second nurse to assist her upon her return to duty; allowed her to take breaks as necessary; and, in setting the schedule for her first week back, permitted her to take a paid sick day so she could attend a doctor's appointment. 
After she returned to work it became clear she was unable to perform the essential functions of her job, but the plaintiff alleged that was because the hospital insisted she return full time. The employer granted the plaintiff's request for additional leave and allowed her to remain out of work for two more months with pay. However, at the end of the additional leave, the plaintiff failed to respond to her supervisor's attempts to reach her. Although the supervisor wrote to advise her the hospital would terminate her employment if she failed to cooperate, the plaintiff did not call in.  Instead of discharging her, the employer reassigned the nurse to per diem status. However, the plaintiff never requested per diem assignments and instead sought to negotiate a severance package. The hospital rejected her proposal but continued to employ her as a per diem nurse, even as of the trial date.
The plaintiff and her expert conceded at their depositions that she was physically and mentally unable to return to work. However, she alleged that, because she was required to work a 12-hour shift, she experienced an aggravation of the brain injury she sustained in the original fall and was unable to resume her duties.

Given the evidence that no accommodation would have succeeded in light of the permanent and pervasive injuries she sustained in the original accident, the employer moved for summary judgment. The judge, however, found that genuine issues of material fact existed regarding whether the alleged failure to accommodate rendered her incapable of performing the essential functions of her job. The court denied the employer's motion for reconsideration.
The case was assigned to trial before another judge, who ruled on several employer-filed in limine motions. The trial judge concluded the plaintiff failed to offer expert proof to show that her attempt to work longer shifts was the proximate cause of her inability to perform the essential functions of her job. The judge found as a matter of law that the plaintiff’s original head injury rendered her incapable of resuming her nursing duties. Moments before jury selection was to begin, the judge entered an order dismissing the complaint.

Daniel J. DiMuro
Douglas E. Motzenbecker
Sarah L. Tomkin