Partial Deafness not a Disability under ADAAA

Partial Deafness Found to Not Be a Disability Under the ADAAA

There is a perception that since the passage of the Americans with Disabilities Act Amendments Act in 2008 and the issuance of the U.S. Equal Employment Opportunity Commission's guidelines in 2011, virtually any physical or mental condition will rise to the level of an actionable disability. The recent case of Mengel v. Reading Eagle, No. 11-6151, (E.D. Pa. Mar. 29, 2013), belies this perception. The case also is notable for its finding that the employee's complaint about a single potentially racist remark was not an objectively reasonable complaint of discrimination.

Totally deaf in one ear

Christine Mengel was a page designer for the Reading Eagle, the principal newspaper of Berks County, Pa., owned by Reading Eagle Co. Mengel had satisfactory evaluations from 2001 to 2008. In 2007, Mengel had surgery for a brain tumor and, as a result, became totally deaf in one ear and began to experience balance problems. Her 2008 evaluation was completed shortly after she began to experience these problems and, as noted, it was satisfactory.

In September 2008, Mengel had a meeting with her supervisors and a co-worker, Bill Reber, during which Reber complained that Mengel had not followed his instructions and referred to her as a "tar baby," according to the opinion. Mengel testified in her deposition that she believed the term was used to "demean" her and to "make [her] feel small."

Selected for layoff

In January 2009, the paper began to evaluate employees in preparation for a reduction in force (RIF). Managers were to use a matrix rating employees in seven categories. It was understood that the lowest-rated employees would most likely be affected by the RIF although, at the time the evaluations were performed, the number of employees to be affected had not been determined.

Mengel's RIF matrix was completed in March 2009. She received a score of 13 out of a possible 42 points, including a score of two (out of a possible score of six) in the "performance evaluation" category. Mengel's overall score was 11 points lower than the next-lowest-rated employee in her department.

It is not clear from the decision whether Mengel was aware of the impending RIF and her relatively low matrix score. It is notable, however, that she formally complained about the "tar baby" comment in April 2009, eight months after it was made. When the company did not investigate her complaint to her satisfaction, she filed an EEOC charge claiming that she was discriminated against in retaliation for her complaint, as well as on the basis of her gender and alleged disability. Ten days after Mengel filed her charge, she was laid off, along with two other employees in her department, both male. She brought suit after the EEOC concluded its investigation and Reading Eagle moved for summary judgment at the conclusion of discovery.

Not substantially limiting

The court first considered whether Mengel had set forth a prima facie claim of disability discrimination. The EEOC's regulations to the ADA state that "deafness substantially limits hearing" and that hearing is a major life activity. As such, deafness is a disability covered by the act. However, the evidence was that Mengel was deaf in only one ear and that the only impairment that she suffered was that she "had difficulty hearing in noisy environments." The court noted that "even under post-ADAAA regulations, 'not every impairment will constitute a disability within the meaning of the ADA.'" Although Mengel testified that she "didn't hear some things," she was not able to cite any specific instance where her hearing loss caused a problem. As such, the court found that Mengel was not "disabled" as a matter of law.

'Regarded as' claim fails

The company's knowledge that Mengel had "balance problems" related to her brain surgery was sufficient to establish a prima facie claim that she was "regarded as" disabled under the ADAAA. This is because "the ADAAA no longer requires a showing that [the plaintiff's] impairment was perceived to substantially limit a major life activity." Mengel's ADA claim failed, however, because she was unable to establish a causal connection between being regarded as disabled and the termination decision. This was largely because the company had learned of her balance problems well over two years before her termination and her supervisors had given her a satisfactory evaluation shortly after her surgery.

No objective belief in illegal conduct

Mengel also claimed that she was retaliated against for complaining about her co-worker's use of the term "tar baby." The court observed that the first element of a prima facie retaliation claim is having engaged in "protected activity." The standard is both objective and subjective, requiring that the employee establish that he or she "held an objectively reasonable belief, in good faith, that the activity [he or she] opposed is unlawful under Title VII."

In this case, it would be without dispute that the single use of an ambiguous term that sometimes (but not always) has racial connotations would not be severe or pervasive enough to create a hostile work environment. But the question was whether it was objectively reasonable for Mengel to have believed that she had been discriminatorily harassed. To this, the court found that "it is not reasonable for an employee to believe that a single, potentially racist remark could violate Title VII."

Moreover, the court found that Mengel did not have a good-faith belief that the comment was unlawful, as she complained only that the term made her "feel small."

The case is useful to counsel and their clients in considering whether a particular condition is covered by the ADA, even after the act was amended. While most conditions will still warrant such coverage, it remains important to analyze each condition, whether at the accommodation stage or in litigation, carefully in order to determine whether it does, in fact, substantially limit a major life activity.

Sid Steinberg is a partner in Post & Schell's business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

 

New Jersey Law Journal 4/12/13

Workers' Compensation: Spoliation of Evidence

PARTY'S DELETION OF FACEBOOK PAGE FOUND TO BE SPOLIATION OF EVIDENCE

A personal-injury plaintiff who deleted his Facebook account while the defendants were trying to access it has been sanctioned for spoliation.

The plaintiff "had a duty to preserve his Facebook account at the time it was deactivated and deleted" and the defense would be prejudiced by loss of the evidence U.S. Magistrate Judge Steven Mannion ruled Monday in Gatto v. United Airlines, 10-cv-1090.

But Mannion, who sits in Newark, declined a request for legal fees, finding the adverse-inference jury instruction he ordered was a sufficient penalty.

Frank Gatto of Brooklyn, N.Y., a baggage handler at John F. Kennedy Airport, claims he suffered serious injuries when a set of stairs used for aircraft refueling crashed into him on Jan. 21, 2008. He returned to work for a while but left that July. He claims he is permanently disabled, unable to work and limited in physical and social activities.

Gatto sued Allied Aviation Services, which owned the stairs, and United Airlines, whose plane allegedly caused the accident. The suit, filed in Middlesex County Superior Court, was removed to federal court.

The defendants first sought social media discovery in July 2011, asking for documents or records of "wall posts, comments, status updates or personal information posted or made by Plaintiff on Facebook and/or any social media website from 2008 through the present."

They also requested the same type of information about the accident and any eBay business operated by Gatto during that time frame.

United later sent forms for Gatto's signature that would authorize Facebook, MySpace, eBay and PayPal to release his information. On Nov. 21, 2011, Gatto sent them back signed, for all but Facebook.

During a conference on Dec. 1, U.S. Magistrate Judge Cathy Waldor ordered Gatto to execute the Facebook authorization, and he agreed to enable access by changing his password to "alliedunited."

The parties disagree on how the defense was supposed to access the Facebook data.

In opposing sanctions, Gatto and his lawyer, J. Silvio Mascolo, certified to their understanding that defense counsel would not access the account online but would obtain the information from Facebook's corporate offices.

Mascolo claims the defense lawyers assured him that there would be no online access and Gatto asserted that if he had known there would be, he would have objected because it would enable the lawyers to look at unrelated private information, especially his e-mail.

Gatto stated his account had been "hacked into and compromised on numerous occasions" in the past, including during his "contentious divorce."

The defendants, on the other hand, denied providing such assurances.

On Dec. 5, 2011, United lawyer Laurie Kachonick of Connell Foley in Roseland, e-mailed Mascolo, pointing out that Gatto had not changed the password and asking that it be done that day.

Kachonick admittedly went online to check on the password change and printed out some materials.

On Dec. 6, Facebook notified Gatto that his account had been accessed by an unknown IP address in New Jersey.

He told Mascolo, who e-mailed Kachonick, asking for confirmation that the records would be sought from Facebook headquarters.

Kachonick did not reply until Dec. 15. She apologized for the delay, saying she was on vacation, and explained the "account was accessed to confirm the password was changed, but will not be accessed again as we have sent the authorization to Facebook."

In response, Facebook said the Stored Communications Act barred it from disclosing the data but suggested having Gatto download the account contents.

During a telephone conference with Waldor on Jan. 6, 2012, it was agreed that Gatto would do so and turn over a copy, along with a certification that he had made no changes since the Dec. 1 conference.

Two weeks later, Mascolo e-mailed Kachonick that Gatto had deactivated the account and while he had instructed him to try to reactivate it, "I am told that once an account is deleted/deactivated, it cannot be reactivated."

It proved impossible, as he advised Kachonick on Feb. 1.

Gatto claimed he deactivated the account on Dec. 16 because "unknown people were apparently accessing my account without my permission," and Facebook automatically deleted the data 14 days later.

He claims he did not learn it was Kachonick until afterward.

The defendants moved for sanctions on June 29, contending the deletion was intentional. The lost postings would have helped refute Gatto's damage claims based on the materials printed out, which showed trips taken by Gatto, social activities and an eBay business, they claimed.

Mannion rejected the argument that the deletion was accidental.

Even if Gatto did not intend to permanently deprive the defendants of the data, he intentionally deactivated the account and failed to reactivate it within the necessary time, causing permanent loss of evidence potentially relevant to his damages and credibility, Mannion said.

He declined to award legal fees because Gatto's "destruction of evidence does not appear to be motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay."

Mascolo, of Rebenack Aronow & Mascolo in New Brunswick, did not return a call.

Neither did defense lawyers Stacie Powers of Connell Foley in Roseland, for United, and Kenneth Gormley of Locke Lord Bissell & Liddell in New York, for Allied.

New Jersey Law Journal 3-28-13

 

For additional information regarding your personal injury or worker's compensation questions, please call the office for your free consultation at 800-709-1131 or visit the website www.simonattorneys.com

Man Awarded Pain & Suffering Damages from Disney Attraction

Man stranded on Disney’s ‘It’s a Small World’ ride wins pain and suffering damages

A disabled man trapped on a ride at Disneyland as music blared overhead has won an $8,000 damages award in federal court.

The nightmare for Jose Martinez began the day after Thanksgiving in 2009 when his and his wife's ride on "It's a Small World" was coming to an end. The couple and other amusement park visitors were in the "Goodbye Room" when the ride broke down. Other riders were evacuated, but Martinez, who is paralyzed and needs a wheelchair, was reportedly left in the car while "It's a Small World" music played in a loop.

The Los Angeles Times and San Francisco Chronicle have stories.

David Geffen, who represented Martinez, told the papers that his client suffers from panic attacks and high blood pressure, both of which were aggravated as he sat in the boat. Geffen said rather than call firefighters to evacuate Martinez, park officials waited for the ride to be fixed. Martinez was trapped for about 30 minutes, then treated at a Disneyland first aid station.

Disneyland issued a statement that it believes it provided appropriate assistance and was disappointed the court didn't fully agree. Martinez was awarded $4,000 for pain and suffering and $4,000 for other disability access violations, according to the LA Times.

Don't wait, find out how an attorney can help you today! 800-709-1131

 

SSDI Inadmissible in Lawsuit

A federal judge in New Jersey has excluded a disability finding by the Social Security Administration from evidence in a medical malpractice suit arising out of the same injury, lest the jury ascribe too much weight to it. Though agency decisions are public records, typically admissible under the federal evidence rules' hearsay exception, U.S. District Judge Renee Bumb ruled Wednesday, in Orber v. Jain, 10-cv-1674, that the potential prejudicial impact on the defendant doctors outweighs the probative value. Bumb cited a "lack of meaningful adversarial process with respect to the cause of Mrs. Orber's alleged disability" which "renders the SSA's conclusions on that issue unreliable."

 

SOCIAL SECURITY DISABILITY FINDING HELD INADMISSIBLE IN SUIT OVER SAME INJURY

 

For additional information regarding your social security disability questions, please call the office for your free consultation at 800-709-1131 or visit the website simonattorneys.com

Is Revoking Handicap Parking Privileges Discrimination?

REAL ESTATE — DISCRIMINATION

34-2-4386 Shearn v. Victoriana Condominium, App. Div. (per curiam) (20 pp.) This is an appeal from the final decision of the Division of Civil Rights finding no probable cause that defendants had acted in a discriminatory manner toward appellant when they refused to grant him a disability accommodation to allow him to resume parking his car in the lot of the condominium complex where he is a unit owner. Appellant's parking privilege had been revoked because he was substantially in arrears on his monthly assessment fees. Finding that appellant met his initial burden of showing that an accommodation was necessary for his equal use and enjoyment of his unit, that defendant-association had exercised its rights under the condominium bylaws and had also revoked the parking privileges of many other unit owners similarly in arrears, that appellant was not declared disabled until after being notified of the suspension of his parking privilege, and that defendant has appropriately asked for medical documentation of the disability that appellant did not timely provide, the panel concludes that the director of the DCR did not abuse his discretion by finding no probable cause.

 

NJLJ 11/28/2011

For further reading, click here

 

For additional information regarding your individual legal questions, please call the office for your free consultation at 800-709-1131 or visit the website simonattorneys.com

Tax Exempt for Psychiatric Disabilities

TAX EXEMPTIONS WRONGLY RESCINDED ON GROUP HOMES FOR THE MENTALLY DISABLED

A non-profit organization that provides housing and counseling services to people with psychiatric disabilities should have been granted property tax exemptions, the state appeals panel ruled Tuesday, reversing a tax court judge. Advance Housing Inc. and a subsidiary meet the definition of a charitable organization exempt from property tax under N.J.S.A. 54:4-3.6, the Appellate Division said in Advance Housing Inc. v. Township of Teaneck , A-0728-09. The ruling means Advance Housing could be refunded up to $1 million paid in taxes from 2002 through 2004 on 14 properties in nine Bergen County towns: Bergenfield, Fairview, Hackensack, Leonia, Little Ferry, Lodi, Ramsey, Ridgefield Park and Teaneck.

For additional reading http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202517837498

For legal representation, contact our office 800-709-1131

or visit our website www.simonattorneys.com

Disability Benefits - Exception Reversed Ruling

PUBLIC EMPLOYEES — DISABILITY

33-2-2887 Hayes v. Board of Trustees of the Police and Firemen's Retirement System, App. Div. (Alvarez, J.A.D.) (16 pp.) Petitioner, a former Trenton police officer, suffered a traumatic event and resulting mental health disability that would ordinarily entitle her to accidental disability benefits. The board of trustees of the Police and Firemen's Retirement System found, however, that the disability arose, or "manifested" itself, four months shy of the five-year filing limit found in N.J.S.A. 43:16A-7. Since petitioner did not file for benefits until seven months after the expiration of the limit, the board denied the application as untimely. We reverse, concluding that the disability did not manifest itself until petitioner was told by her employer, more than five years after the traumatic event, that she was permanently disabled. Therefore, her claim fell within the "delayed manifestation" exception to the five-year filing limit pursuant to In re Crimaldi, 396 N.J. Super. 599 (App. Div. 2007).

 

NJLJ 7/14/2011

 

For additional information regarding your individual legal questions, please call the office for your free consultation at 800-709-1131 or visit the website simonattorneys.com

Disability Benefits Available Years After Incident

DELAYED ONSET OF TRAUMA CONSIDERED IN ACCIDENTAL-DISABILITY PETITION DEADLINE

A state appeals court granted leniency on Wednesday to public safety workers seeking accidental disability benefits years after the triggering event. The court said in Hayes v. Board of Trustees of the Police and Firemen's Retirement System, A-2967-09, that a benefits petition based on post-traumatic stress disorder is timely if filed soon after the worker became aware of the disability. The court reversed a decision by the Board of Trustees of the Police and Firemen's Retirement System, which denied benefits to a former Trenton police officer because the petition was filed well past the five-year statute of limitations. The ruling, approved for publication, is the first to recognize delayed-onset emotional trauma in a PFRS petitioner, according to the plaintiff's lawyer.

NJLJ 7/14/2011

 

For additional information regarding your individual legal questions, please call the office for your free consultation at 800-709-1131 or visit the website simonattorneys.com

NEW RULES EASING ADA CLAIMS ARE ABOUT TO TAKE EFFECT

 

Across the country, labor and employment lawyers are scrambling to prepare their clients to comply with changes to the Americans With Disabilities Act that broaden the scope of who is covered under the law and make it easier for workers to bring claims against employers. Congress passed the ADA Amendments Act in 2008 — and it has been in effect since Jan. 1, 2009 — but the Equal Employment Opportunity Commission (EEOC) published its final regulations and interpretations of the changes only on March 25. Since then, lawyers have issued a flood of client advisories and held webinars, seminars and client training sessions to prepare for a major change in employment disability law. The new regulations go into effect on May 24.

Contact us today for your free consultation for your discrimination case 800-709-1131 or visit our website www.simonattorneys.com