The following is a reprint from "THE LEGAL INTELLIGENCER"
Job Seeker's Carpal Tunnel Qualifies as ADA Ailment

BY CAROL COMEGNO
Mount Holly

ROBRENO: PERCEPTION OF DISABILITY

A woman with carpal tunnel syndrome has the right to sue a prospective employer under the Americans with Disabilities Act for allegedly refusing to consider her for any data entry jobs, a federal judge has ruled.

In the suit, Juanita Johnson claims that she was told by a personnel department employee at the University of Pennsylvania that she would not refer Johnson for any data entry jobs because "that's how you messed up your hand in the first place."

Johnson, who is represented by Mark S. Scheffer of Larry Pitt Associates, had already worked for the university for a decade-from 1984 to 1994-as a data entry clerk in the university hospital billing department.

In May 1993, Johnson complained of pain in her hand and wrist-which she attributes to working extra hours on a rush job for her office-and was diagnosed as suffering from carpal tunnel syndrome.

She missed three days of work, was put on light duty for six months, and wore a removable cast. When she returned to full duty, Johnson says her doctor told her to take a five-minute five break every two hours.

But she claims her supervisor's attitude toward her had soured. When she called in sick three days in a row, but failed to speak directly with him on the third day, she claims she was told to resign with six weeks notice or face termination.

Lawyers for the university insisted that the "requested resignation" was the result of progressive discipline that came only after Johnson was warned on numerous occasions about her absenteeism.

After her resignation, Johnson began her job search at the university's personnel office, applying for several positions. But she claims a human resources representative told her she would not be considered for any data entry posts because of her carpal tunnel syndrome.

Johnson claims she was fully capable of performing data entry work at the time and was denied the jobs only because of her impairment; her record of impairment; or "being regarded as having an impairment."

The university's lawyers, Neil J. Hamburg and Alpa V. Patel of Hamburg & Golden, moved for summary judgment, arguing that Johnson can't even meet the first prong of the ADA's four-part test for making out a prima facie case, which calls for a showing that she belongs to a "protected category."

U.S. District Judge Eduardo C. Robreno disagreed, saying that "under certain circumstances, carpal tunnel syndrome may qualify as a disability under the ADA."

But even if Johnson's problems are not severe enough to qualify as a disability, Robreno said she could survive summary judgment by showing she was "regarded as having a impairment."

Johnson has sufficient proof to go to a jury on that point based on the alleged statement from the human resources employee, Robreno said.

"If it is found that Ms. [Marge] Mansfield indeed made such a statement, a reasonable fact-finder could infer from that alone that the defendant regarded the plaintiff as having a disabling impairment," Robreno wrote.

"The court finds that if the defendant precluded the plaintiff from consideration for data entry positions because of her carpal tunnel syndrome, plaintiff was thus restricted from performing a "class of jobs," Robreno wrote, citing from the Code of Federal Regulations section that defines the ADA.

"Such a restriction would then constitute a substantial limitation on the major life activity of working," he wrote.

Hamburg and Patel argued that Mansfield's alleged statement was never made, but that even if it were, it would be inadmissible because she was merely a low-level employee and not a decision maker.

But Scheffer pointed to Mansfield's deposition, in which she testified that her job included "refer [ring] qualified candidates for vacant positions."

As a result, Scheffer said, Mansfield played the role of a "gatekeeper" in the decision making process and was able to affect the selection of candidates.

Robreno agreed, saying Mansfield's gate keeping role of reviewing applications is analogous to the role of the interviewer in a recent 3rd Circuit decision, Olson v. General Electric Aerospace."

In Olson, the 3rd Circuit reversed summary judgment, finding that while the interviewer was merely and intermediary, his perception that the plaintiff was disabled may have affected his recommendation