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Does Transferring a “Disabled” Employee to Another Job Violate the N.J. Law Against Discrimination?

By on December 12, 2017 in Discrimination with 0 Comments

Answer: “Not necessarily,” said two Appellate Judges in Brancaccio v. City of Hackensack issued on December 5, 2017.

So What was the Claim?

Bryan Brancaccio, a full-time firefighter in Hackensack, was originally assigned to work “platoon work” where he responded to scenes of fires wearing fire equipment and performed the tasks necessary to extinguish fires. After it was determined that he had a disability, he was assigned to another job as a fire inspector, at the same rate of pay, where he would not have to actively fight fires. Brancaccio claimed that the Department discriminated against him based on his disability or perceived disability by reassigning him to a different job.

What are the Facts?

During one of Brancaccio’s shifts, a Deputy Fire Chief noticed him sitting on the front bumper of a fire truck, “gray” and “appearing to have discomfort in breathing.”  It was also determined that he needed “100% oxygen.”  The Chief didn’t immediately reassign Brancaccio, but agreed with him that if he became ill while working, he would report his condition to his supervisor so appropriate action could be taken (request an ambulance, etc.). Shortly after that, Brancaccio and other firefighters took a required pulmonary function test, which determined that Brancaccio could not wear a respirator required to be worn by all firefighters doing “platoon work” (i.e., regularly fighting fires).

Action Giving Rise to Claim of Discrimination:

In response to his “failing” the pulmonary test, the Chief determined that Brancaccio was disabled and reassigned him to the “fire prevention” bureau where he would not actively fight fires. His salary was unchanged, although he argued that he would lose significant overtime available to those who actively fight fires.

Did the Chief Discriminate Against Him?

“No,” said the courts. While Brancaccio was clearly disabled or perceived to be disabled, he also needed to show that his perceived disability led to an adverse employment action. He failed to do so, held the courts, saying that he didn’t suffer any adverse employment action because he “continued to earn the same salary as firefighters assigned to platoons, and he also received an additional $1500 stipend.”  Significantly, the Court noted that “a job reassignment, with no corresponding reduction in wages or status, is insufficient to qualify as an adverse employment action.”

What if Brancaccio Provided “Cold-Hard” Proof that He Would have Earned Overtime?

Perhaps that might have helped his cause with the Court, but it probably wouldn’t have made a difference, since the Fire Department showed that they were experiencing a significant backlog in fire inspections and had a critical need to have experienced fire inspectors (like Brancaccio) to keep the city safe. Thus, the Court held, Brancaccio did not show that the City’s continuing to use him as a fire inspector was a “pretext” for discrimination.

What’s the Take-A-Way Here?

As a threshold matter, employers must be careful in the treatment of those with disabilities or perceived disabilities and must ensure that if they take any action with respect to the employee’s job, that it is not “adverse.”  The problem: what amounts to “adverse action?” Know that each case is fact-specific and may result in a claim of discrimination if a careful and thoughtful analysis is not conducted.  If your entity is faced with a situation like the one faced by Hackensack, you should consult your labor and employment counsel to attempt to avoid a “fire in your house.”

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Carmen Saginario Jr., Esq

About the Author

About the Author:

Carmen Saginario Jr., Esq. is Co-Chair of Capehart Scatchard’s Labor & Employment Group. Mr. Saginario focuses his practice in representing public and private sector entities on labor and employment matters, as well as governmental, regulatory and administrative, and complex litigation matters. Mr. Saginario also represents governmental and other entities and individuals with respect to laws governing public entities, as well as educational, procurement, environmental, transportation, and public safety issues. Mr. Saginario also regularly represents public and private sector clients in administrative and complex civil litigation matters. Additionally, Mr. Saginario supervises Capehart Scatchard’s Corporate Compliance Group which counsels and assists public and private sector entities on establishing and implementing legal and ethics compliance programs. He has also been certified by the National Football League Players Association (NFLPA) as a Contract Advisor (player agent). Mr. Saginario’s other significant experience is he served as a Deputy Attorney General for the State of New Jersey and Assistant Counsel to Governor Thomas H. Kean. He is admitted to practice law in New Jersey, the United States District Court for the District of New Jersey and the Third Circuit Court of Appeals.

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