In a case that points out the inherent difficulty of implementing the Americans with Disabilities Act (ADA) in a situation involving safety issues, a federal district court in Connecticut determined that an operating room nurse was not qualified for protection under the ADA because he was weeks away from the end of a year-long prohibition – imposed during drug rehab – against working in an operating room or around narcotics. Talmadge v. Stamford Hosp., D.Conn, 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 completion of the 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 healthcare 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 released 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 Stamford Hospital 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 narcotics and from working in an operating room.

Concerned about perceived inconsistencies during Talmadge’s interviews, Stamford Hospital asked Talmadge for additional details about his history, at which point Talmadge revealed the drug theft and the 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 Stamford Hospital in October 2010, because he was unable to work in an operating room environment or access narcotics under any circumstances at that time.

While the court’s decision regarding Talmadge’s initial application was discussed and supported in detail in the court’s opinion, less than one page was dedicated to Talmadge’s argument that his subsequent contacts with Stamford, made after the expiration of HAVEN’s prohibition of his work in an OR, 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 points to the wording in Talmadge’s deposition testimony, in which Talmadge stated that he 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 avoids addressing the thorny issue of whether Stamford’s failure to hire Talmadge after Talmadge’s completion of the conditions of his rehabilitation would constitute 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.