On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-2570-98.
Before Judges Braithwaite, Coburn and Weissbard.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2001
Plaintiff, Diane Bosshard, sued her employer, defendant Hackensack University Medical Center ("HUMC"), and two of her supervisors, defendants Lisa Oldham and Diane Moslowski, after she was discharged from employment. Her primary claims were based on the handicap provisions of the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42. She alleged that she was unlawfully discharged because of her addiction to heroin, despite her successful completion of a drug rehabilitation program, and because of a hearing impairment, for which no accommodation had been provided. She also asserted that dismissal of a hearing-impaired employee for past addiction to heroin after the employee had successfully completed a drug rehabilitation program violated public policy. Her other claims were: intentional infliction of emotional distress, fraud, and breach of contract. Defendants resisted plaintiff's legal theories as either unsound or unsupported by evidence and maintained that the case involved nothing more than Bosshard's dismissal for altering medical records in violation of hospital policy. The Law Division dismissed some counts of the complaint for failure to state a cause of action and granted summary judgment on the rest. Plaintiff appeals.*fn1 We affirm.
HUMC, a full-service hospital, hired plaintiff as an at-will employee on June 3, 1996, and assigned her to the non-invasive vascular department, where she worked as a vascular technician under Lisa Oldham, the nurse manager, and Diane Moslowski, the technical supervisor. Her duties included performing non-invasive arterial and venous procedures and interpreting and recording the results, which were then reviewed by a physician. Although she worked primarily with a sonogram to take ultrasounds, she also was required to use a stethoscope or a Doppler for two purposes: to distinguish blood pressure sounds and to hear "bruits" (abnormal sounds heard during diagnostic monitoring of parts of the body).
Plaintiff has a long-standing, bilateral hearing disability, which she addresses by wearing hearing aids in both ears. There is no medical evidence that her aided hearing is less than normal; however, in her opinion, even with the hearing aids, she was unable to use the ordinary stethoscope or the Doppler to properly assess blood pressure and hear bruits. Consequently, shortly after her employment began, she asked Moslowski to get her a special stethoscope for the hearing-impaired, although she had never seen such a device. Moslowski reported to her that the purchasing department could not locate the device but added that if plaintiff could find one, HUMC would pay for it. Plaintiff tried to find one without success. Moslowski certified that the Doppler was adequate for both purposes, and plaintiff admitted that she used the Doppler, as instructed, without criticism from her supervisors. Nonetheless, in her opinion the Doppler was inadequate because, she said, it "only reads the systolic, and it reads one-half of a blood pressure reading." She also said she could not hear bruits with the Doppler. And yet, in her ninety-day performance evaluation of August 1996, which rated plaintiff as satisfactory in thirteen areas and unsatisfactory in four, one of plaintiff's satisfactory ratings was for performing "vascular assessment using stethoscope, Doppler ultra sound probe."
On April 18, 1997, plaintiff received a "DISCIPLINARY ACTION NOTICE" for unsafe practices which stated, in part:
Upon review of your current technical practice the following has been noted. You had performed three tests which required correction, these were reviewed with you on April 8, 1997. One of these[,] U# 8866533[,] patient was medically treated inappropriately based on your findings. On April 8th you were offered educational support and declined. You were encouraged to seek assistance [while] performing a test if you so needed. Since this time, U# 4276911, your findings showed a stenosis, but after reviewing your records and tapes, it was determined to repeat the study and an occlusion was found. Also U# 3091923 was seen from the ER on 4/11/97[;] you performed a test on the right leg but neglected to verify the order which specified bilateral testing. This is considered unsafe practice. Immediate and sustai[ned] improvement is necessary. Any further practice issues will result in further discipli[nary] action up to and including termination.
On May 8, 1997, a physician asked plaintiff to correct one of her reports because it erroneously stated that the patient had a catheter. Although plaintiff knew that alteration of a medical record was against HUMC's policy, she responded by using white-out to delete the misinformation. She followed that course because her supervisor was not in and "the use of white-out was allowed in other circumstances." However, she was aware that its use in this instance might not be appropriate. Consequently, she placed the patient's file on Moslowski's desk with a note asking that they discuss the matter the next morning. The next day, Friday, May 9, the file was brought to Oldham. After seeing the white-out and the note written by plaintiff, Oldham brought plaintiff into her office. According to Oldham, plaintiff admitted that she had known that using the white-out was wrong. At Oldham's direction, plaintiff immediately wrote out an explanation of what had occurred in which she stated, among other things:
I discussed the error with Dr. Rho on 5/8/97 and told him I will ask my supervisor to retype this report leaving the catheter out. What I should have done was not "white-out" about the catheter, but mention this to the reading doctor.
Implicit in the balance of the note was plaintiff's contention that she was not sure how to make the necessary correction. According to Oldham, the correct procedure would have been the preparation of an addendum to the report. She advised plaintiff that use of the white-out was a serious offense that required immediate suspension pending further investigation and consultation with her superiors. She sent plaintiff home, explaining that she would "get back to her" when the investigation was completed.
Plaintiff was scheduled to begin a one week vacation on Monday which under ordinary circumstances would have resulted in her returning to work on Monday, May 19. However, on Tuesday, May 13, she called the coordinator of the "Employees Assistance Program ("EAP"), and told her that she was depressed and had used marijuana and heroin over the weekend. Plaintiff's drug usage had been ongoing for some unspecified period of time. The coordinator arranged for plaintiff to be admitted to a New York hospital for an in-house, twenty-eight-day drug treatment program, which began on Wednesday, May 14. Under EAP policy, information respecting the nature or purpose of any hospitalization is not to be given to the employee's supervisor without express, written authorization from the employee.
On or about May 15, Oldham's superiors instructed her to dismiss plaintiff. A "DISCIPLINARY ACTION NOTICE," with the typed "Issue Date" of "5/16/97" was prepared. It provided for discharge of plaintiff on the issue date and listed the cause for discharge as "alteration of a medical record." Oldham tried without success to reach plaintiff by telephone at her home to complete the termination; then decided to terminate her when she returned from her vacation on Monday, May 19. There is no evidence that Oldham, or anyone else at HUMC outside of EAP and the Employee Health Department, knew that plaintiff was receiving drug rehabilitation treatment. When plaintiff did not report to work on May 19, Oldham again attempted to reach her by telephone, this time learning from her mother that plaintiff was in a hospital and that HUMC knew about it. Plaintiff's mother did not state the reason for the hospitalization. Oldham checked with the Employee Health Department, which advised only that plaintiff was hospitalized and would be out of work on temporary disability. Oldham informed her supervisors that the termination would be finalized when plaintiff returned to work at the conclusion of her hospitalization.
On June 12, having completed the drug treatment program, plaintiff called Moslowski and said she was ready to return to work. Moslowski told her to report on Monday, June 16, which she did. When plaintiff arrived, Oldham "asked for her paperwork for returning to work through employee health because she was out on temporary disability." Since plaintiff did not have the necessary paperwork, Oldham instructed her to get it from the Employee Health Department.
At the Employee Health Department, plaintiff underwent a physical examination and blood and urine tests, as required by HUMC's standard procedure for an employee returning from drug rehabilitation treatment. She passed the tests, signed a "Return to Work Agreement," and reported to Oldham, who promptly informed her that she was being terminated for the white-out incident. Oldham also gave her a copy of the May 16, 1997 "DISCIPLINARY ACTION NOTICE," which had been changed in only two respects: the "Issue Date" and the "Discharge, effective date" were changed in handwriting to "6/16/97."
The first question is whether addiction to a controlled dangerous substance, such as heroin, may be considered a handicap under the LAD. Plaintiff argues that Clowes v. Terminix Intern, Inc., 109 N.J. 575 (1988), and In re Cahill, 245 N.J. Super. 397 (App. Div. 1991), require a simple, affirmative response. We disagree, but we also reject defendants' position that addiction to a controlled dangerous substance can never be a handicap under the LAD simply because their possession and use are criminal offenses under the Comprehensive Drug Reform Act of 1986, L. 1987, c. 106, § 1, N.J.S.A. 2C:35-1 to -24. Rather, we think the more complex and more satisfactory answer is that adopted by the federal government in Section 12114 of the Americans with Disabilities ...