Denial of Disabled Lawyer's Request For 'Shadow' Assistant Wasn't Bias

Denial of Disabled Lawyer's Request For 'Shadow' Assistant Wasn't Bias

A New Jersey government lawyer disabled with cerebral palsy asked for one accommodation too many.

The lawyer, a deputy attorney general known as E.H. in court papers, made 30 requests for special treatment in the course of his first year on the job—ranging from reserved indoor parking, adjusted timing on elevator doors, a grab handle in the rest room and transportation to court appearances—all of which were granted.

He sued because his 31st request—for a personal assistant who would “function as his shadow”—was refused.

On Thursday, an appeals court ruled that the Attorney General’s Office did not violate laws against disability discrimination. The court said deference was due the findings of the Civil Service Commission that an assistant was not warranted because it would not help E.H. address his weak job performance.

E.H. was appointed a DAG in the Division of Law in September 2003. At his first performance evaluation, after seven months on the job, he received a rating of 1 out of a possible 5, indicating performance “substantially below expectations.” His research skills were called minimal and his writing “raw, garbled and unclear.” He failed to complete assignments on time, made inappropriate comments and had difficulty working with others, the review said.

E.H. was asked to “significantly improve his written work” and “learn how to comport himself in an office environment and refrain from off-color and inappropriate comments.”

Late in 2004, E.H. was given a “mobility transfer” to the Division on Civil Rights, an open-ended assignment that kept him on the Division of Law’s payroll. Initially working as an investigator, he became a staff attorney in 2008.

When he learned that some other DAGs of his rank received raises and promotions, he requested similar advancement, but the Division of Law said no, since he had not been doing DAG work while at the Division on Civil Rights.

E.H. complained to the Attorney General’s Office of Equal Employment Opportunity that the Division of Law’s refusal to provide him an assistant resulted in his poor performance evaluation, his transfer to the Division on Civil Rights and his inability to obtain promotions or raises. The EEO office found no basis for the complaint and E.H. appealed to the Civil Service Commission.

After two rounds of consideration, the commission held that E.H. had failed to prove discrimination, finding that an assistant would not be an accommodation and would not improve the critical areas of his analytical abilities, legal writing or ability to work with others.

Appellate Division Judges Carmen Alvarez, Mitchel Ostrer and Harry Carroll found the commission’s finding was supported by substantial evidence and was not contrary to the law nor arbitrary, capricious or unreasonable.

The appeals court also upheld the commission’s decision to require a desk audit to determine whether E.H.’s job responsibilities match his classification as a deputy attorney general. The action was reasonable and within the commission’s authority, even though neither side requested the audit, the court said.

E.H.’s lawyer, Andrew Watson of Pellettieri, Rabstein & Altman in Princeton, says the decision “seemed to miss the mark based upon what was briefed.” He says the panel’s discussion of the request for a personal assistant was a “red herring” and that his client never sought to make his employer hire a new employee for that purpose. Watson says his client intended for the agency to fill the assistant function from existing staff.

Watson says the ruling’s listing of the 30 accommodations granted to Watson was inaccurate and many of the items listed were not provided.

He says E.H. opposes the desk audit because such a study typically is ordered by an employee and he feels it was imposed in retaliation for his request for accommodation.

Lee Moore, a spokesman for the Attorney General’s Office, did not return a call about the case.

Contact the reporter at ctoutant@alm.com.

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