NMCA: Employer’s mistaken belief that worker was disabled supported discrimination claim

In Goodman v. OS Restaurant Services, LLC (opinion by Judge Hanisee), the Court of Appeals has held that sufficient evidence supported a jury’s verdict that an employer mistakenly “regarded” the plaintiff worker as disabled, and discriminated against him because of that belief.

The facts provide an object lesson in how not to handle a workers’ compensation claim: The plaintiff injured his ankle on the job at an Outback Steakhouse in Las Cruces, and it swelled to the size of a grapefruit. The plaintiff reported the injury to his supervisor, who allegedly told him that he didn’t need to file a claim, and that if he did so, he would be perceived as “unreliable” and would not be promoted to assistant manager. The supervisor then allegedly refused to make an accommodation because he did not think the plaintiff could perform that work, and then fired the plaintiff after thirty days because he did not show up to work. All of this led to a $95,000 jury verdict against the employer.

The Court of Appeals concluded that the evidence at trial was sufficient to support a jury conclusion that the employer discriminated against the plaintiff, in violation of the New Mexico Human Rights Act, because it regarded the plaintiff as being disabled. The jury’s conclusion was supported by (a) the supervisor’s testimony that he believed a sprained ankle was a disability; (b) the plaintiff testified that he could have worked if his requested accommodation had been given to him; and (c) medical records provided to the employer contained no restriction on the plaintiff’s ability to perform the work required by the requested accommodation.

The employer also argued that the jury instructions failed to provide adequate guidance on the Human Rights Act to the jury, and that the verdict form was defective because it only asked whether a violation of the Act occurred, but did not ask the jury to specify what the violation was. The employer, however, failed to provide an alternative jury instruction, and withdrew its objection to the verdict form.

Therefore, these claims were waived. This appears to be yet another situation where bringing in an appellate lawyer to review the instructions and verdict form might have helped.

Finally, in a pattern that we’re seeing more often this year, retired Judge Jim Wechsler is on the opinion as a judge pro tempore. In other recent opinions, retired Judges Cynthia Fry and Michael Bustamante, and retired Justice Ed Chavez, have also served as judges pro tempore on Court of Appeals panels. I believe they are doing so (presumably without pay) to help the Court overcome its backlog of cases. They should be commended for doing so!

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