In a case that underscores the inherent difficulty of implementing the Americans with Disabilities Act (ADA) in situations involving workplace safety issues, a federal district court in Connecticut determined that an operating room nurse was not qualified for ADA protection because he was weeks away from the end of a year-long prohibition—imposed during a drug rehabilitation—on working in an operating room or around narcotics.Talmadge v. Stamford Hosp.,No. 3:11-cv-01239 (May 31, 2013). The more difficult issue, which received little attention from the court, was whether the nurse’s unsuccessful subsequent communications regarding employment after he completed his prohibition term could support an ADA claim.
According to the court, Richard Talmadge, an operating room nurse, was caught stealing narcotics while working in a hospital’s main operating room. Talmadge enrolled in a confidential assistance program for health care professionals with the expectation that upon successful completion, his nursing license would not be affected. The program, Health Assistance interVention Education Network (HAVEN), advised participants to “stay away from an operating room setting and have no access to narcotics for a period of one full year.” By enrolling in the program and agreeing to its terms, Talmadge was able to avoid suspension of his license; he also received no discipline from state or federal agencies.
On May 12, 2010, Talmadge returned to the practice of nursing, but was prohibited from working in an operating room, procedure room, or recovery room setting until formally cleared to do so by HAVEN. Although the record is somewhat unclear, the earliest that Talmadge could have returned to such work areas was November 13, 2010.
On October 1, 2010, Talmadge submitted a handwritten application to StamfordHospital for the position of operating room nurse and was interviewed on that day. During the interview, Talmadge first explained that he was simply “looking for greener pastures,” but then stated that his former employer had filled his position while Talmadge was on a “leave of absence.” Talmadge did not reveal at that time that he was restricted from accessing narcotics and from working in an operating room.
Concerned about perceived inconsistencies during Talmadge’s interviews, StamfordHospital asked Talmadge for additional details about his history, at which point Talmadge revealed that he was caught stealing drugs and that he had been in a rehabilitation program. Based on all of the information, the hospital decision-makers felt that Talmadge was “lying about several issues” related to his circumstances, and informed Talmadge that the hospital had “decided to explore other candidates” for the position. Talmadge filed a lawsuit under the ADA, alleging that he was not hired because of his past drug addiction.
To establish the necessary prima facie case under the ADA, an individual must show that he was “otherwise qualified to perform the essential functions of the job with or without reasonable accommodation.” The district court granted summary judgment in favor of the hospital, finding that Talmadge was not a qualified individual under the ADA when he interviewed at StamfordHospital in October of 2010, because he was restricted from working in an operating room environment and accessing narcotics under any circumstances at that time.
While the court’s decision regarding Talmadge’s initial application was discussed and analyzed in detail in the court’s order, less than one page of the order was dedicated to Talmadge’s argument that his subsequent contacts with Stamford, which were made after the expiration of HAVEN’s prohibition of his work in an operating room, should be considered as new applications for employment. In determining that Talmadge’s later communications with Stamford were simply a continuation of the initial application, the court pointed to Talmadge’s deposition testimony, in which he stated that he had heard about additional openings for operating room nurses at Stamford in December 2010 and wondered “whether [Stamford] would reconsider my application.”
By doing so, the court avoided addressing the thorny issue of whether Stamford’s failure to hire Talmadge after he had completed the conditions of his rehabilitation constituted a violation of the ADA. It remains to be seen whether this case will be appealed, and whether the appellate court will agree with the lower court’s characterization of Talmadge’s later communications as a simple request for “reconsideration” of the original facts of his application.
Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.
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