State News : New Jersey

Walter Aston worked for Tapco International for 20 years as a shipping and receiving clerk, display builder and a maintenance worker.  He suffered a heart attack in May 2010.  The company granted 12 weeks of FMLA leave as well as an additional 14 weeks of short-term disability leave.  The company policy was not to hold positions open for employees who are unable to return to work after their 26 weeks of absence.

Aston asked his doctor, Dr. Karabajakian, to complete a short-term pay extension form on November 4, 2010.  The doctor noted that Aston would have an impending implantable cardioverter defibrillator surgery and could not return to work until January 1, 2011.  However, Dr. Karabajakian checked “ok” next to all the job functions listed on page one of the job description with the exception of an inability to lift more than 30 pounds of weight.  Dr. Karabajakian later testified in his deposition that when he filled out this note, he neither knew nor spoke to Aston about the amount of time Aston engaged in different job activities.

Tapco’s HR Director got the note and read about the impending surgery, which involved implanting a device to prevent sudden death.  The HR Director, Ms. Brisson, told Aston that the company had pretty much decided to terminate his employment.  Brisson told Aston to take long-term disability and noted that the company would not likely return him to work with medical restrictions.

After hearing this, Aston contacted Dr. Karabajakian and advised him that he was going to lose his job if the doctor did not give him a full duty return-to-work note.  Dr. Karabajakian then turned around and wrote a completely different note stating that Aston could return to work immediately with only a 30 pound lifting restriction. Aston then called work and said he would be returning to the company on November 22, 2010.

The HR Director called Aston back and said the company was going to terminate him because the job would be too much for him to handle.  The company had decided that long-term disability was the best choice for Aston. On the following Monday, when Aston intended to return to work, Brisson called Aston and told him that his position had been terminated. They followed up that with a note stating that Aston was being dismissed for failure to return for work full duty.

On May 31, 2012, eighteen months later, the company wrote to Aston offering reinstatement on a full-time basis with a few additional duties.  Aston rejected the offer and sued under the ADA.  The District Court ruled for Tapco, and Aston appealed.

The Sixth Circuit Court of Appeals commented that Aston had been unable to perform his job from May 23, 2010 until January 2011.

Here, Aston’s own doctor advised Tapco of Aston’s impending ICD and later testified that the standing, walking, bending, climbing, and reaching demands of Aston’s job extended beyond Aston’s physical capability and that Aston would not have been able to perform nearly half his duties had he returned to work on January 1, 2011.  Therefore, had Aston returned to work on January 1, 2011 with or without accommodation, he would have been incapable of meaningfully completing any of the physical labor his job required of him.

The Court added that the relevant time frame in determining disability discrimination is at the time of discharge.  The Court reviewed the deposition of plaintiff’s doctor, who indicated that the standing, walking, bending, climbing and reaching demands of Aston’s job were beyond his capacity as of November 2010.  It ruled that since Aston was not able to perform the essential functions at that time, the discharge was not discriminatory.

The Court also commented that Tapco had a reasonable basis to question Dr. Karabajakian’s initial note saying that Aston could return to work on January 1, 2011.  “Just a few weeks before terminating Aston, Dr. Karabajakian informed Tapco of another impending major medical procedure that Aston needed to undergo.  This would doubtlessly require additional time for recuperation.  Aston had already been on an extended 26-week leave, once before, in 2006, and, at the time of his termination, Aston was on his second leave of unknown duration, despite the request for return on January 1, 2011.”  The Court said that Tapco had already provided a substantial leave to plaintiff and therefore additional leave would be an unreasonable accommodation.

The case is instructive on a number of levels.  For one thing, the case illustrates a fairly common scenario in which a treating doctor reverses himself on a fitness assessment for no apparent reason.  In this case, the reason for the reversal became apparent later in testimony, namely a phone call from the employee saying he was about to lose his job. Second, the case shows that employers have a reasonable basis to terminate when an employee simply cannot return to work and perform the essential job functions even after a period of substantial leave.  The case can be found at Aston v. Tapco International Corporation, 631 Fed. Appx. 292 (6^th Cir. 2015).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.