DEAF WORKERS OF ORANGE COUNTY PROJECT -- DEAF WORKERS WEEKLY BULLETIN -- May 29, 1999 Greetings, Last Sunday, I was nominated to chair the Computer and Technology committee of the United Democratic Clubs. This will be my first non-disability related appointment. I will develop policy and help monitor computer related threats to society from violent games to the year 2000 bug to name a few. I anticipate an easy approval and am looking forward to be active in computer related issues. One of my duties as Chair of the disability committee of the Democrats North Orange County, is to bring disability related problems to the attention of our lawmakers. Some of you may dislike my recent actions bringing our attention to inefficient disability support centers. This has to happen if we are ever to hold jobs, lead productive lifestyles, and be contributors to society. I have submitted 3 resolutions to this effect in the past month. The main duty of this position is not to uphold the law as they are, but to recommend improvements to the laws that are supposed to help us. As for my health, I'm now being weaned off from some post operative medications and functioning close back to normal activities. I'm very glad that I'm returning back to normalcy. The next bulletin will be sent out on June 12 because I will be out of town next weekend helping our deaf center's booth in Hope, Arkansas. Richard Roehm ---- COURT RULES THAT EMPLOYEE WHO COULD NOT STAND FOR MORE THAN 50 MINUTES IS NOT DISABLED Taylor v. Pathmark Stores (3rd Cir 05/19/99) Taylor sued under the Americans With Disabilities Act (ADA) claiming that he was disabled and that the employer regarded him as disabled. At the end of Taylor's presentation of evidence to a jury, the trial court granted judgment as a matter of law for the employer; the 3rd Circuit affirmed the finding that Taylor was not actually disabled, and reversed the finding that the employer did not regard him as disabled. Taylor was working as a frozen food manager when an injury left him with a 16% permanent disability in his right ankle. If he stood or walked for more than 50 minutes he needed a cane or crutch. Over a period years the employer allowed rest periods and the use of a cane or crutch. Then a series of sometimes contradictory physician reports ultimately led the employer to discharge Taylor for the stated reason that he could not perform the essential functions of the frozen food manager job or any other available position. (1) Taylor was not actually disabled under the ADA because he was not substantially limited in the major life activities of walking and standing. He walked with a slight limp. He could stand for 50 minutes, after which he needed a crutch or cane. He used a prosthetic shoe to ease his pain and discomfort. His girl friend testified that he took regular walks after dinner and that he did not need a crutch or cane. There was no testimony that he stood or walked, within the 50 minutes of each hour that he could, with any less ability than the average person. EEOC regulations refer to a person who "can only walk for very brief periods of time," and 50 minutes is not a "very brief" period. (2) A reasonable jury could find that the employer perceived Taylor as disabled. The jury could have found that the employer considered Taylor to be incapable of performing any of the employer's jobs, with or without an accommodation. The employer seemed to have made a mistake in interpreting Taylor's medical records. Although a physician had reported that Taylor had some "temporary" restrictions, the employer sent Taylor a letter saying that it had been advised that his restrictions were "permanent." This mistake appeared to be caused by a "communication gap" between two of the employer's departments. The 3rd Circuit made it clear that the burden of correcting the employer's mistaken belief lies upon the employer. "An employer can rely on an employee's information about restrictions, but it has to be right when it decides that those restrictions are permanent and that they prevent the employee from performing a wide class of jobs, as opposed to one particular and limited job." "To successfully claim that he was wrongly regarded as disabled from working, a plaintiff need not be the victim of negligence or malice; an employer's innocent mistake (which may be a function of 'goofs' or miscommunications) is sufficient to subject it to liability under the ADA." ---- PRESIDENT CLINTON NAMES PAUL S. MILLER AS A COMMISSIONER OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION The President announced this week his intent to nominate Paul S. Miller to serve as a Commissioner of the Equal Employment Opportunity Commission. Paul Steven Miller, of Los Angeles, California, has served on the Commission since October, 1994. During his tenure, he has co-chaired a successful task force to develop an alternative dispute resolution program for the EEOC and chaired a Commission-wide task force, which evaluated and proposed changes to the agency litigation program to enhance its effectiveness. Currently, Mr. Miller is also serving on the Presidential Task Force on Employment of Adults with Disabilities. Prior to his appointment to the EEOC, he served as Deputy Director of the U.S. Office of Consumer Affairs and in the White House Office of Presidential Personnel as a liaison to the disability community. Previously, he served as the Director of Litigation for the Western Law Center for Disability Rights, a non-profit legal services center. While there, Mr. Miller litigated all types of disability rights cases, including employment, education, transportation, and access discrimination. Mr. Miller has served as an Adjunct Professor of Law at Loyola Law School in Los Angeles, a visiting Professor of Law at the University of California at Los Angeles, and a ParsonVisiting Scholar at the University of Sydney. Mr. Miller received a B.A. degree from the University of Pennsylvania and a J.D. degree from Harvard Law School. ---- EMPLOYER ON THE HOOK EVEN IF MISTAKE INNOCENT By Shannon P. Duffy The Legal Intelligencer May 21, 1999 The 3rd U.S. Circuit Court of Appeals has ruled that innocent mistakes goof-ups and miscommunications -- can get an employer in trouble under the American with Disabilities Act if the mix-ups result in wrongly branding a worker unable to work. In Taylor v. Pathmark Stores Inc., the court found that a worker who says he was wrongly "regarded as" disabled from working does not need to show negligence or malice to establish liability under the ADA, but instead may rely on proving that the misperception was the result of the employer's innocent mistake, provided the employee himself is not responsible for the erroneous perception. "If an employer believes that a perceived disability inherently precludes successful performance of the essential functions of a job, with or without accommodation, the employer must be correct about the affected employee's ability to perform the job in order to avoid liability," Chief U.S. Circuit Judge Edward R. Becker wrote. "There is no defense of reasonable mistake. Any other outcome would defeat the ADA's attempt to eradicate what may be deeply rooted and seemingly rational presumptions about the abilities of the disabled." Pathmark's lawyers, Michael F. Kraemer and Debbie Rodman Sandler of White & Williams, argued that imperfection in the company's internal procedures -- apparently a communication gap between its ADA Committee and those responsible for making an employment decision about Joseph Taylor -- should not lead to ADA liability. Becker disagreed, saying "if the relevant decisionmakers wrongly believed that Taylor was completely unable to work because of miscommunication within Pathmark, the ADA puts on Pathmark the burden of correcting the problem, rather than leaving Taylor out in the cold." The ruling, in which Becker was joined by U.S. Circuit Judge Theodore A. McKee and visiting U.S. District Judge Donald J. Lee of the Western District of Pennsylvania, reverses a mid-trial directed verdict in Pathmark's favor announced by Chief U.S. District Judge Joseph J. Farnan of the District of Delaware soon after Taylor's lawyer rested his case. Although the Court of Appeals agreed with Farnan's conclusion that Taylor was not disabled, it found he applied the wrong legal tests in assessing his claim that he was "regarded as" disabled between December 1995 and his rehiring in July 1997. The court remanded that claim for retrial, but said it also recognized "a limited defense of reasonable mistake where the employee is responsible for the employer's erroneous perception and the employer's perception is not based on stereotypes about disability." Becker began his opinion by noting that "the ADA is often a difficult statute for courts and employers to interpret and, sometimes, to follow" because of its structure and subject matter. Taylor's case was especially difficult, he said, because of the "odd (if not convoluted) factual background, punctuated by glitches and apparent misinterpretations of medical records." Taylor began working at Pathmark in May 1981 and was eventually promoted to frozen food manager. In December 1991, he slipped on a piece of cellophane at work and strained his right ankle. His doctor instructed him to rest the ankle for 10 minutes each hour, and to refrain from walking or standing for extended periods of time. He aggravated the injury in January 1992 when he fell down a flight of stairs. He took time off from work, and when he returned in November 1992 he was told that the frozen food manager post had been filled during his absence. For a period, Taylor was given various light duty assignments that accommodated his limitations. During that period, Pathmark's manager considered him a problem-free employee. Then, in March 1994, Taylor's store manager asked him to provide an updated note from his doctor setting forth any continuing restrictions on work assignments. His family doctor provided a note stating that Taylor could continue to work, but without prolonged standing. Later that month, without Taylor's knowledge, Pathmark's corporate headquarters sent a request for an updated record for Taylor to his orthopaedic specialist, who said in a letter that he had not seen Taylor since December 1993, but that he believed that Taylor could return to work without any restrictions. When Taylor was told that he would have to return to a full-duty cashier's job, he refused and sought an appointment with the orthopedist, who later sent Pathmark another letter stating that Taylor could engage in "full-time work -- limited standing." But Pathmark's administrative offices never forwarded the second letter to Taylor's manager and he was not asked to return to work. Pathmark's internal e-mail suggested that there was a "glitch" in this series of events. By May 1994, Pathmark was sending Taylor to see an orthopaedic surgeon who concluded that Taylor could work with restrictions. But Pathmark still did not invite him to return to work. In September 1995, Pathmark's ADA Committee evaluated Taylor and sent his doctor a questionnaire asking about Taylor's restrictions. The doctor said Taylor was temporarily subject to increased work restrictions due to an aggravation of his ankle injury in July 1995. Pathmark's ADA Committee evaluated his case in late 1995, but took no action on it for approximately seven months. In May 1996, Taylor was fired when the company said his inability to work "effectively severs your employment relationship." The letter recited the restrictions Taylor's doctor included in his letter -- that he stand one hour at a time up to four hours a day; walk one hour at a time not to exceed one hour a day; lift, carry, push and pull 10 pounds frequently, up to 20 pounds occasionally, and never over 20 pounds; and occasionally bend, squat, climb and reach. "These restrictions on your work related activities are such that any reasonable accommodation which Pathmark might provide are insufficient to enable you to function to standard in your position as a Frozen Food Manager," the termination letter said. "Furthermore, your restrictions are such that you cannot perform the essential functions of any other available position, all of which require extended standing and/or walking and regular reaching." The final sentence of the letter showed a major mistake on Pathmark's part: "We have been advised your restrictions are permanent." Taylor tried to correct the mistake by contacting his own doctor to remind Pathmark that his most recent letter stated that the aggravated condition was temporary and not permanent. But Taylor was not reinstated. Instead, the Committee referred the matter to Pathmark's legal department and heard no more about it. Meanwhile, Pathmark's workers' compensation department was insisting that he could return to work full-time. From 1994 on, Taylor had regularly contacted Pathmark, asking for work, and his union representative had also tried to get him back to work. After he was fired, he brought the federal ADA suit and was rehired in July 1997. CLAIMS DISMISSED Judge Farnan dismissed all of Taylor's claims, saying he had not shown he was disabled since his condition imposes only slightly on his ability to walk and stand and cannot be termed a "substantial" impairment. Becker agreed, saying, "the relevant question is whether the difference between his ability and that of an average person is qualitatively significant enough to constitute a disability. Because Taylor can stand and walk for 50 minutes at a time, and can continue for longer periods if he takes a break every hour, Becker said, "he can carry out most regular activities that require standing and walking, even though he may not be able to perform Pathmark's jobs without accommodation." But on his claim that he was "regarded as" disabled, Becker found that Taylor had a viable claim that should have gone to the jury. "The gravamen of Taylor's claim is that Pathmark perceived Taylor as disabled based on a mistaken interpretation of his medical records, specifically (his own doctor's) October 1995 physical capacity evaluation, wherein the doctor checked the box marked `temporary' and the Committee responded with a letter stating `We have been advised your restrictions are permanent,"' Becker wrote. Becker found that Pathmark's May 1996 letter, which said that Taylor was unable to perform any Pathmark job, even with accommodation, "suggests a perception of limits that would likely constitute substantial limitation on many major life activities." Farnan didn't see it that way, saying Taylor's case presented "an apparently impossible situation for an employer. On the one hand, an employer must acknowledge the medical restrictions needed by an employee, while on the other hand it must ignore those same medical restrictions when the employee believes the restrictions might affect his assignment to a desired position." But Becker found that Farnan erroneously concluded that it was improper for Taylor to proffering both a theory that he was disabled and a theory that he was wrongly regarded as disabled, and that the two theories undercut one another. "A plaintiff may plead in the alternative, and our caselaw finds no difficulty with pairing the two claims in one complaint," Becker wrote. "The possibility that a plaintiff will bring both an actual disability and a `regarded as' claim is simply one allowed by the law; its possible abuse must be checked by the standard measures for deterring frivolous or bad-faith complaints." As for the "impossible situation," that Farnan perceived, Becker found there was none because Pathmark would not be liable for accommodating Taylor. "It is only liable if it wrongly regarded him as so disabled that he could not work and therefore denied him a job," Becker wrote. On the issue of the innocent mistake, Becker made clear that the ADA imposes the duty on the employer to get the facts straight when dealing with a disabled employee. "An employer can rely on an employee's information about restrictions, but it has to be right when it decides that those restrictions are permanent and that they prevent the employee from performing a wide class of jobs, as opposed to one particular and limited job," Becker wrote. "An employer who simply, and erroneously, believes that a person is incapable of performing a particular job will not be liable under the ADA. Liability attaches only to a mistake that causes the employer to perceive the employee as disabled within the meaning of the ADA, i.e., a mistake that leads the employer to think that the employee is substantially limited in a major life activity." ---- NEZ'S CYBER MALL SUPPORTS THE DEAF COMMUNITY Nez's Cyber Mall is a fundraiser project that will help support the newly created Orange County Deaf Advocacy Center. This mall has been designed with accessibility in mind. All commissions generated by sales activity within this mall will be used to support the Orange County Deaf Advocacy Center. Nez's Cyber Mall can be found at: Http://www.i-sphere.com/eyedeaf/deafmall.htm ---------------------- Hello D&HH Community, Bill 2024 was withheld on 03/15/99 due our efforts. Let's hope another one consumer oriented will be introduced! Bill 2049 seems move. Let's look and try correct bellow shown problems! DATE: May 1, 1999 SUBJECT: LOOP-HOLES FOR TAXPAYER'S EXPENDITURES; Peter Verniero CASTS DOUBT ON HIS ABILITY AND WILL TO SERVE INTERESTS PEOPLE OF THIS STATE BY PRACTICALLY PARTICIPATION TO POLICY DEFIANCE ACCESS TO JUSTICE FOR NJ LITIGANTS PRO SE. MESSAGE - Move these issues! Because CONSUMER PROTECTION + $AVINGS TO TAXPAYERS = GOOD PUBLIC POLICY. NO INFO ABOUT EXPENDITURES -> NO COMPETITION -> NO $AVINGS TO TAXPAYERS = NO GOOD RATING TO A LEGISLATOR! It's outrageous - NJ has "Charitable Registration and Investigation Act" "...that in order protect public from fraud and deceptive practices, it is essential that information concerning ...professional fund raisers, commercial co-venturers and solicitors be readily available to the people of this state." However any charitable expenditures themselves, including State and Federal governments funded amounting maybe billions dollars, are excluded from such possibility to "...be readily available to the people of this state." Star Ledger published "Basic telephone rates to be lowered for poor" on 11/19/97. "The BPU approved an 18 million program yesterday that will allow ...[600 000 eligible residents]...to get telephone service for about $1 a month. ...Bell Atlantic will become eligible for $5.25 a month in matching funds from the federal "universal service" fund. The remaining $1.75 a month would depend on whether the Board creates a separate universal service fund for the state." There is a concern, if Bell Atlantic is really getting matching amounts "universal service fund" or it gets amount based on 600 000 eligible for this service residents NJ? The policy of Bell Atlantic in this area, based on my own experience, gives a strong ground for supposition that Bell gets money based on theoretical number eligible residents NJ contrary based on real number customers awarded this service. I spent over 6 months considerable efforts in obtaining it although there is no any doubts in my eligibility as an SSI disability beneficiary! I got Bell Atlantic Annual Financial Statement for 1998 - it has no any mentioning about such funds! Bell Atlantic have to be obliged to supply info about such charity related funds and their expenditures - they can't be considered as an ordinary revenues and they are supposed for awarded objectives! Last year was profitable for BA and according my impression almost all federal and state funds from "universal service fund" was applied to profit; However there is a number scenarios in which those funds BA will be able to spend on behalf residents another states or even foreign countries! Why on the earth NJ taxpayer have pay expenditures of BA abroad? It is a good idea to oblige companies getting state awards of charitable nature to report amount received and detailed expenditures them to Charity Registration and Investigation in order securing that such information, "...be readily available to the people of this state." The same true for all state charity related expenditures, I think amounting hundreds million dollars, such as tax initiatives and direct subsidies for housing, education, health, and so on. The current Charity Act doesn't require any charity to disclose their quantitative result at all that deprives any possibility to estimate and compare efficiency use awarded funds by providing entities! Let's look at high education. Colleges excluded from Charity Registration Act but if they get research awards - they required. Some colleges get tens million dollars but it's impossible from their annual reports under Charity Act to find how funds were spend and what was achieved. Colleges are obliged submit their annual financial statements to NJ Department of Education; However the same pattern - they are not obliged to disclose how federal and state funds were spent. Say the annual financial statement of NJIT for 1997 shows Federal and state educational grants $1.8-2.00M that are aid for low income students; However only $0.8M was attributed to the line "Student Aid". But it's not a whole story - the most part it, according my observation, was transferred to wealthy students in form scholarships, including for post- graduated studies that aren't covered, based on academic achievements and jobs on campus. Therefore NJIT transferred funds received for financial aid needy NJ residents/students maybe only about 10% for this objective. In other words some NJ taxpayers money was spent on financial aid outstate students based on manipulative "academic grades." It have to be noted that expenditures for earlier years are much more staggering! They most likely included in lime "Student Aid" costs of "Student Supportive Services." Another their questionable expense is cost keeping on payroll one of kind skills professors with wage sometimes well over $50K and without a single student served in a whole year! Another colleges load such one of kind skills professors with teaching students to related courses. The public would be interesting also in level involvement Voc. Reh. Service at college based activities! Say I witnessed study of a paralyzed student was delivering at NJIT from a nursing home by ambulance. He was taught on personally customized basis. He is able barely type his speech with a customized most likely by campus based team computer embodied in his wheelchair that gives quite a doubt he'll ever benefit from high education! On the other hand VRS refuses any financial help to needy disabled students with outstanding IQ that have quite a good chance to benefit from high education and reach self-support without SSI benefits! Similar story with legal aid entities. They state amount state and federal funds received, number staff members and mission statement - without any mentioning number people and specifics cases served. Some lawyers there do nothing - only search reasons for denying service. Couple years before near my residence was advertised an attorney for Senior Citizens particular in reception desk of Small Claims Court. However by phone I was told by a lady there that she services family related like custody matters only, more over there is no even house on that address shown even in Phone Directory. I wasn't able get any help in my civil case against NJIT at Essex-Newark Legal Services during almost year long hard efforts! My several attempts to get legal help in NJ Protection & Advocacy were failed during several years and I have strong impression that they processed none cases at least in some years. Any way considering their accessibility, the cost their services to taxpayer is much higher then cost/per case of private attorneys! And information about their productivity isn't "be readily available to the people of this state." In conclusion, let me know please if there is possibility to deliver legislators info about failure care about interests the people of this state by Peter Verniero, Attorney General that casts doubt in his ability and will to do it on Supreme Court bench? In my suit in Small Claims Court against NJIT that failed provide me a job that they suggested me under Federal Work-Study Program in Financial Aid Package, that is a contract violation case, a judge considered it as a workplace dispute and dismissed the case. By the way, the defendant under oath claimed there that it provided jobs under the Program funded by government for needy and disadvantaged students only about half those students that were granted it under Financial Aid Package. More over, the judge managed staff the court to miss me deadline for appeal. In the 2nd my suit against NJIT for failure provide another component F.A.P. the same judge, Ms. Ferentz, contrary my dismissal her due her mismanagement previous case with strong evidence exclusive partiality on behalf the defendant and dismissal a court reporter that got considerable amount money from the defendant, she exposed even more partiality and dismissed the case too. The Superior Court refused to subpoena Hand Book for Administration Federal Work- Study Program and left S.C.C. Orders unchanged. In the 3rd my case against NJIT failure keep Fin. Aid. Package and comply with regulations Fed. Work-Study Prg. the same judge again ignored my dismissal her, positioned a court reporter far from specially allocated place and me from microphone for prevention possibility audiorecording and exposed even more extreme partiality. She deprived me even from possibility present my arguments, adopted duties council of record for the defendant, NJIT and dismissed the case with prohibition any suits against NJIT regarding Fed. W-Study Prg. in the future. She particular allowed to the formal council of record of NJIT to say literally several words during the entire hearing: "My name is ..." in the beginning and "Thank you your Honor!" in the end hearing. Therefore she issued an Order that nobody asked formally for! The defendant expanded the Order to prohibition for me any suits against NJIT and its employees and trustees. Superior Court denied me status indigence although I'm SSI disability beneficiary and demanded pay cost Court Transcript only for possibility citing partial, taken out context, part sentences for creating visibility legal ground for rejection the appeal. All appeals at Superior Court are subject review by Attorney General, therefore his failure intervention in these appeals are exposing blatant violation right NJ people Pro Se on access to justice is a strong evidence of his inability and lack will to secure people of this state to get access to justice and therefore his inability and lack will to secure people of this state to get access to justice on a bench of Supreme Court. DISCLAIMER: A good Samaritan, Stephen Gregory, have advised me to clarify level accuracy my statements in my letters or face allegations in slander or libel. Accordingly I'm apologizing for possible inaccuracy based on lack access to accurate data and some exaggeration facts. Monthly Communicator really probably doesn't print hundreds pages adds an year but certainly about hundred ones. The statement related 90% volume it allocated to adds maybe exaggerated in some degree but considering that a lot pages there are indirect advertisements the number pages adds should be noted as 50-90%. And the point is that it's not a good idea to use taxpayers money for promotion some selected businesses with half page adds. The most adds are not for profit and beneficial to deaf community and can't be found elsewhere but their size isn't justified. It seems Mr. Gregory got distorted e-mail. The real sentence there is, "1. Mr. Waga, the biggest NJ CART service in colleges provider that allocates a lot of his excess profit [he charges $100p/h and pays around half to his court reporters with a single student delivering him at least $60,000 revenue per year] to spreading deceptive and suppressing possibility disclosure objective information about real quality and value CART technology. " My information based on statement of one court reporter that serviced me. He probably pays different percent to different reporters, any way considering court allegations, I'm ready to resend accurate info upon getting it. However devotion NJIT and Rutgers University to his less then perfect, partially due employment fresh graduated reporters, services and help in suppressing possibility exposure it seems a good ground for supposition that unethical at least components are involved. It have to be noted that there are several tens such court reporters in NJ with ability to provide better classroom accommodations due established already experience and I'm confident some would be happy to charge bellow $100p/h due time and amount the service contrary Mr. Waga. In conclusion I'd like to inform that the best way of accommodation now is one used for Real Time Captioning on TV - they use speech recognition software by reporters. Sincerely Lev Pribytkov ============================================================== DEAF WORKERS OF ORANGE COUNTY Orange County, California Richard Roehm President Internet : Deaf@activist.com Deaf_Workers_OC@usa.net Website Nesmuth@worldnet.att.net Http://www.i-sphere.com/eyedeaf/dwoc.htm =============================================================== Feel free to redistribute this newsletter in it's entirety and if you are planning to add a mailing list as a subscriber then let me know for my records. Thank you. =============================================================== Deaf Workers of Orange County will continue to aggressively pursue justice, fairness, and equality for the Deaf Community. =============================================================== Education is the best gift that lasts a lifetime! Help someone subscribe to Deaf Workers Weekly Bulletin =============================================================== SUBSCRIPTION INFORMATION To be added to the mailing list, send "ADD WORKERS BULLETIN" To be deleted from the mailing list send "DELETE WORKERS BULLETIN" to this address Deaf_Workers_OC@usa.net Mailing lists are never sold/given to anyone. =============================================================== Need to stay on the net? Try DeafWatch's own "Keeping You Connected" page which is packed with graphical links to FREE email providers. ===============================================================