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Scalley v. Summit Medical Group, P.A.

A-0122-03T1 (N.J. Super. App. Div. 2004) (Unpublished)

EMPLOYER-EMPLOYEE—An employee who, because of excessive absences, is unable to come to work cannot be expected to perform any job functions, essential or otherwise, and his or her employer isn’t discriminating when it won’t hold a job open for such an employee.

An employee, who suffered from breast cancer, sued her former employer, claiming they she was fired because of her disability, in violation of the New Jersey Law Against Discrimination (LAD). The employer claimed that the employee was fired because of her excessive absences which prevented her from performing the essential requirements of her job. And, the employer had offered part-time employment with benefits, which the employee rejected.

The LAD prohibits an employer from unlawfully discriminating against any person because she is or has been at any time disabled. Nonetheless, the LAD is not to be construed to prevent the termination of any person who, in the opinion of the employer, is unable to perform adequately the duties of employment. A plaintiff must meet a four-pronged test to establish a prima facie case of disability discrimination. A plaintiff must also show that she suffered from a recognized handicap; that she was performing on her job at a level that met her employer’s expectations; that she was terminated; and that her employer sought someone to perform the same work after she left. Once a plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant to show a nondiscriminatory reason for terminating the plaintiff. If the employer meets this burden, then the plaintiff bears the burden of proof, by a preponderance of the evidence, that the legitimate non-discriminatory reason provided by the employer was not the true reason for the termination, but was merely a pretext for discrimination.

The lower court held that this particular employee failed to establish the second element of a prima facie case of discrimination: that she was performing her job at a level that met her employer’s expectations. The lower court also found that the employer established a valid nondiscriminatory basis for the termination.

The Appellate Division agreed. To satisfy the second element of a prima facie case, a plaintiff must show that, with or without reasonable accommodations, she would have been able to perform her job functions satisfactorily. Here, the employee claimed that her employer failed to reasonably accommodate her by not allowing her to work half-days, and by firing her for taking a third leave of absence for hospitalization for her psychiatric disorder she claimed developed because of the stress she claimed her employer had caused by the way it responded to her frequent absences. The LAD requires employers to make reasonable accommodations, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. Therefore, the core question in this case was whether the employer could have reasonably accommodated the employee’s excessive absenteeism.

In concluding that the employee’s excessive absences kept her from performing the essential elements of her job, the Court noted that in the thirteen months the employee worked for her employer, she worked only eighty-four days. Furthermore, she was given the opportunity to work part-time and still retain her benefits, but she declined to do so. Therefore, the employer did attempt to reasonably accommodate its employee’s disability, but the employee failed to accept the proposed accommodation. According to the Court, an indefinite unpaid leave is not a reasonable accommodation. In addition, the Court concluded that the employee failed to demonstrate that she was capable of performing the essential requirements of her job to the satisfaction of her employer despite her handicap because that handicap caused her to be excessively absent. An employee who does not come to work cannot perform any of her job functions, essential or otherwise. For those reasons, the Appellate Division affirmed the lower court’s conclusion that the employee failed to establish a prima facie case of discrimination.

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