In May, 2010, Melissa Migut broke her leg. In November, 2018, she won a $1.7 million verdict against her employer, the State of New Jersey. What happened in between involves pain, disability, a fire drill, a murky legal gray area between discrimination and workers’ compensation, and ultimately a lesson for employers on the difference between proclaiming you are accommodating a person with a disability and actually accommodating that person.
The flash point was the fire drill. Being forced to walk down five flights of stairs and out of her Trenton office building while she was already hobbled by a disability prompted the lawsuit.
It’s easy to think that the case could have been avoided if Migut had been exempted from the drill. But the point of the drill was to test the procedures for getting everyone safely out of the building. And, according to Elizabeth Zuckerman, Migut’s lawyer, the Administrative Office of the Courts had an emergency evacuation procedure that took into account the needs of disabled employees. It also had emergency evacuation chairs, which are like chairs on skis that slide down the steps as someone above holds the handles to guide them. “Unfortunately, no one ever told Melissa about the procedures or chairs or offered her any kind of accommodation for getting out of the building safely during a fire drill,” Zuckerman says.
Migut’s eight-year term in physical and emotional turmoil began when she fractured her left tibia in May, 2010, sliding into third base during a recreational softball game. The injury left her with constant pain around her foot and ankle, a condition called complex regional pain syndrome.
While at home for 16 months following the fracture, Migut says, “My life started to change to adapt to having chronic pain and a disability. Anytime you hurt yourself it is an overwhelming and scary process, especially when you go from doctor to doctor and nobody can give you an answer.” It took six or seven doctors to get a proper diagnosis, and she was on crutches for months and got a transport wheelchair six months into her rehabilitation.
Another devastating blow was when her long-time boyfriend, soon to be fiance, broke up with her because of the disability. She then had to move back in with her parents, which, she says, “was definitely a life adjustment.”
But there was also an upside. “The good news was that the disability was limited to my foot or ankle,” Migut says.
She “worked hard to get through it,” seeking counseling and physical therapy, trying new medical treatments. “It tripped me up, but I got up and got back into it. I was doing life again even though it was a hurdle.”
After 16 months at home, she says, “I was being productive and feeling good even though I had this injury.” Migut had started working in the Intensive Supervision Program of the Administrative Office of the Court in 2002. She helped integrate nonviolent offenders from prison back into the community. The inmates she supervised had been accepted to live at home, with the accompaniment of about 20 phone calls or home visits each month. Work went well and she received a promotion.
Although she could not return to her previous job, which required a lot of walking, “because the state recognized I was a good, hard worker, the director of the program talked to people to formulate and create a job for me that was more sedentary.” In October, 2011, she began her new position, Administrative Specialist 2, a demotion that accommodated her difficulty walking and involved pulling files for program statisticians.
Her lawyer, Zuckerman, writes in an e-mail that before Migut resumed working, she met with the state’s American with Disabilities Act coordinator, Rhonda Berliner Gold, and gave her a doctor’s note saying she could not flee from an unsafe situation. Two days later Gold granted her two additional accommodations because walking was very difficult: adjusting her hours so she could get one of the few handicapped parking spots and moving her cubicle closer to the filing cabinet and bathroom.
“To support these requests, Melissa provided another doctor’s note that said walking was difficult and painful, and requested that they limit the amount of walking she needed to do because walking could exacerbate her condition,” Zuckerman writes.
Soon after she returned to work, following a fire drill where she had to walk down five flights of stairs, the pain spread to the entire left side of her body and she had to leave her job.
On May 10, 2012, the day that was to change her life dramatically and turn her partial disability into a total one, Migut says, “I went to work like I did every other day.” In her nine years working for the state, she had never before experienced or even heard about a fire drill. So when she heard the fire alarm and started walking toward the elevator, she remembers feeling panicky and thinking, “I just have to get out of here.”
Migut says she pressed the elevator button, and when nothing happened, she noticed the sign advising her, “In Case of Emergency Use the Stairs.” She saw the director of the program at the top of the stairs and unsure whether the alarm represented a drill or a true emergency, she asked him whether she could use the elevator. The director, Zuckerman writes, “saw her struggling and was aware of the evacuation chairs but did not offer them to her.”
“He told me to take my time and go down the stairs, and I did,” Migut says. But after only a few stairs she felt pain as well as a backup of people behind her trying to get out of the building. “When I went only a few stairs, I could feel pain, and I could feel a backup behind me on the stairs.” The first time she told the director to go on without her, he stayed behind her. But in the middle of the second of five staircases, when she told him again to go ahead, he did. As Zuckerman writes, “The second time Melissa stopped on the stairs in obvious pain, he went around her to exit the building.”
Migut says, “I just took my time to get downstairs, and when I got down, I sat on a pillar. At this point I was crying because of how much pain I was in, and I sat on the curb.” The facilities manager told her she couldn’t stay where she was and directed her to the back of the parking lot, another 300 feet. At that moment a former supervisor overheard this exchange and came over to help her out. “I leaned on him to go further, and we made it another 150 feet to another island, and we decided we were far enough away,” Migut says.
By this point everybody was returning to the building, and she managed to make it back to her cubicle, leaning on her old supervisor who helped her, via the elevator. As she sat crying, in a lot of pain, coworkers came over to comfort her. One was the fire marshal, who told her she felt she hadn’t been properly trained to offer help to Migut and was going to write a memo saying that to the facilities manager. When the director came to check on her, Migut says, “he said if I didn’t think I could continue through the workday I should go home.” Because “even sitting in a chair was painful,” she went home.
Training was scheduled for the next day, and she thought she would be able to “just sit and a chair and listen to what was going on,” but, she says, “I only made it through an hour; then I went back home and didn’t go back to work.”
What prior to the fire drill had been pain in her left foot and ankle afterward “spread through the upper part of the leg, to the hip and rib cage, to the scapula, the lower shoulder,” she says. “Since then I have had burning and stabbing pain from my scapula down. Prior to the fire drill, my average on the pain scale would be 6; following, my entire left side is a guaranteed 8, sometimes a 9.”
“Trying to recover from that was the hardest thing I have had to deal with so far in my life,” she says. Although she had had many injuries, each of those affected “a pretty small part of my body at one period of time, and it was pretty easy to manage.”
This type of pain, she says, “doesn’t compare to normal pain or a normal fracture. The pain is intensified and is not proportionate to the nature of the injury. A push on my foot or ankle feels like stabbing me with a knife. The majority of the left side of my body has sensitivity and burning, stabbing pain that is constant, and it is very difficult to concentrate, difficult to get through your day.”
“And that’s just the physical aspect. Your mind and body and spirit are connected. When your body is in pain, it’s hard to keep a good mental health state and hard to be productive at all,” Migut says.
‘I wanted to make sure other people were not put in a similar situation to me.’
Despite difficulty recovering from her early disabling injury, interventions like antidepressants and physical therapy brought some progress. But when the pain spread after the fire drill, she says, “my normal treatment modalities weren’t working.” The different antidepressants that doctors prescribed didn’t work, and she was eventually hospitalized at Princeton House and underwent electroshock therapy.
“I became catatonic because I had such a hard time dealing with my life circumstances,” she says. After the initial injury to her ankle, recovery was hard enough. She had to leave her dream job — “what I felt like my purpose was, the job I was supposed to be doing in this lifetime.” But she was optimistic about eventually working her way up to a supervisory role in the program.
After the fire drill, she says, “all of that got flushed. Even sitting in a chair or in a car, lying down, standing — any position I am in — I can’t stay in that position very long. I can sit upright for no more than two hours without feeling excruciating pain. Also knowing you are not going to have a stable income or be able to provide and be productive — it was a difficult transition from the person I was. I was an athlete and a go-getter. I continued my education to open job opportunities for myself and make sure I would be okay. To have it all removed was devastating.”
It took Migut a while to decide to sue the state. When she checked about worker’s compensation, they “felt that there should have been some kind of notice or procedure in place to help work with people with a disability to get through a fire drill or a real evacuation.” Also she was just feeling broken, having trouble financially, and pursuing social security disability. Before she was ready to approach an attorney, she says, “I had to wait till my mind and body stabilized a bit.”
“At the end of the day, in retrospect, I now know what they had available, that they did have protocols in other buildings. I wanted to make sure other people were not put in a similar situation to me, and I talked to an attorney to make sure they were held accountable for their negligence,” she says.
Born in Trenton, Migut moved into Hamilton Township when she was in fourth grade. Both of her parents are retired, her father as a lieutenant for Department of Corrections and her mother as a crossing guard for the Hamilton Township Police Department.
An athlete at Hamilton High School West, Migut played varsity basketball and softball from her freshman year. “I was a typical jock; I played sports in all seasons,” she says, adding that she had been offered athletics scholarships for college. But a serious car accident created temporary paralysis on her left side, putting her on crutches for five or six months, and as a result she was home-schooled during her entire senior year.
After graduating in 1998, Migut earned an associate’s degree from Mercer County Community College, then a bachelor’s degree from Stockton College (now Richard Stockton College of New Jersey), both in criminal justice. She then got licensed as an alcohol and drug counselor at Mercer, earned a master’s in human resources and development at Seton Hall University, and completed the coursework for a doctorate in education leadership and management, leaving school with a designation of education specialist.
She met her husband, Guillermo Martinez, a chef, through an online dating app, after the fire drill that disabled her. Her marriage, she says, “is a blessing. Without him, I cannot live independently — I can’t live on my own in a house by myself.” She has a daughter who is almost two.
“Between my friends and family we are able to navigate through this, but it is a challenge every day,” she says. “Being a mom all by itself is a fulltime job, but having a baby with a disability is very difficult — but I fight every day to get through it,” she says.
A member of St. Vincent de Paul in Yardville, she depends on her faith as well as relying heavily on her father and her childhood friends. “I have a great support system to help me get through. My sister only lives a few blocks away, and between my friends and family we are able to navigate through this, but it is a challenge every day,” she says.
‘Hopefully nobody else has to suffer from these circumstances by other people not preparing for stuff.’
The case, Zuckerman says, was “brought under the New Jersey Law against Discrimination, which prohibits discrimination based on a protected status such as age, race, gender, and disability. This situation was a little unusual; it was a one-count complaint, where you had an employer who knew she was disabled and failed to accommodate her during a fire drill and as result she suffered really serious injury.” Zuckerman explains that usually when a disability-discrimination case is brought, the failure to accommodate doesn’t result in a physical injury, but may result in the loss of a job.
During the four-and-a-half years while Zuckerman was seeking to resolve the lawsuit via a settlement, the state had assigned at least five different deputy attorneys general, but “they never paid much attention to the case,” Zuckerman explains. The case lay in somewhat of a gray area between discrimination and worker’s compensation, which is paid “when someone injures themselves on the job,” she says. “I argued that this is more than a worker’s compensation case. This is an injury that resulted from the employer’s failure to accommodate Melissa’s known disability.”
Ultimately the case was filed in April, 2014, nearly two years after the fire drill. On November 27, 2018, the verdict was delivered. According to the verdict sheet, the defendant, the New Jersey Administrative Office of the Courts, had known or should have known that Migut needed an accommodation during a fire drill and indeed such an accommodation was available. Also, the jury found that the state failed to provide a reasonable accommodation, which “proximately caused an aggravation of her Complex Regional Pain Syndrome (‘CRPS’).”
The total award to Migut was $1,767,531: $200,000 for emotional distress from May 10, 2012, up through the trial date; $300,000 for the injuries caused by the failure to accommodate; $465,421 for back pay; $700,000 for front pay; $65,000 for lost pension benefits; and $37,110 for health care costs.
“It was a nice verdict, but substantially less than we asked for,” Zuckerman says. An economic expert calculated that her loss would be $4.3 million if she were never able to work again. The fact that the jury awarded her $700,000 in front pay suggests to Zuckerman “that the jury recognized that she will not be able to work for some period in the future or at this level in the future.”
Zuckerman says, “The house she lives in is a house she bought before the original injury, and it has steps, and she is hoping to buy a one-story home.”
Zuckerman has filed a motion for the defendant to pay legal fees. If they do, then somewhere between $400,000 to $600,000 will be added to the $1.7 million verdict; then Zuckerman would take 35 percent of the total.
The case was complex, Zuckerman says, involving arguments about collateral sources of income, like worker’s compensation and disability pension, and whether they get deducted, though, she says, “The law says if you are fired from your job and file a discrimination case and win, you get the full amount of damages, even if you get unemployment benefits.”
“There was a lot of finger pointing,” Zuckerman says, regarding who was responsible. The Americans with Disabilities Act coordinator did sit down with Migut and figure out what kind of accommodation she needed, Zuckerman says, but never told her about what to do in case of a fire drill. She claimed at the trial that that was the job of the fire marshals.
Also, although the department had an evacuation chair, no one was trained on it.
The director of her unit, Zuckerman says, testified at trial that he asked Migut if she needed help, and she said no, but Migut denies this. Zuckerman says, “We argued — you had all this evidence [of her disability], you had a system in place, but nobody knew how to implement it.”
Although individuals were initially named in the case, they were dismissed and replaced by the state. “The theory under the law is that an individual can be liable for aiding and abetting, but the employer is ultimately responsible,” says Zuckerman.
Right after the drill, the management team decided that in the future, during a fire drill, people with mobility disabilities can shelter in place, and if it is a fire or another emergency, a fire department official can help them evacuate.
The legal proceedings are not done. “The other side made a motion for a new trial,” Zuckerman says, claiming they don’t think the facts supported the finding. “They are arguing that this was really a negligence case, so worker’s compensation should have been the only remedy.” They were also unhappy with some things Zuckerman said during the trial and felt they had “prejudiced the jury against the defendant.”
Migut continues to try any treatment she can find to try to improve her quality of life, but she perseveres. “Everybody has an obstacle in their life, and you get an option to get up and fight every day or not,” she says. “I struggle with depression, anxiety, and chronic pain. … I want to be a good mom and a good wife, and I can’t do that if I don’t fight. Some days the disease wins, but I do whatever I can to win more days than the disease does.”
And she is telling her story publicly so that “hopefully nobody else has to suffer from these circumstances by other people not preparing for stuff.”
Meet the Lawyer
Elizabeth Zuckerman grew up in South Orange, spent two years at Colorado College, then graduated from the University of Michigan in Ann Arbor with a bachelor of arts in English. In 1986, she received her law degree from the University of California at Davis School of Law, where she was executive editor of the law review. From 1986 to 1990, she served as deputy attorney general in the New Jersey Department of Law and Public Safety, and in 1991, she joined Mason, Griffin & Pierson in Princeton, first as an associate and then as partner.
In 1997, Zuckerman co-founded Zuckerman & Fisher, where she has handled virtually all aspects of employment and discrimination law.
At the request of the chief justice of the New Jersey Supreme Court, Zuckerman served for three years as co-chair of that court’s Task Force on Gay and Lesbian Concerns. She has also served as vice president and president of the New Jersey chapter of the National Employment Lawyers Association.
Zuckerman & Fisher LLC, 5 Mapleton Road, Princeton 08540; 609-514-0514. www.zuckfish.com.