by Michael Fox
Dr. Gowesky was accidentally infected with hepatitis c while an employee at the hospital. When she sought to return after treatment, she was met with concerns and negative comments, although she was ultimately placed on the schedule. She never actually returned to work, and later sued the hospital claiming both disability harassment and discrimination. Noting that both required a finding that she was 'disabled' under the ADA, the Court refused to make such a finding even under the 'perceived as' prong of the ADA definition. The Court found that she was not disqualified from working as that term is used in the ADA, nor did her employer think so, as evidenced by putting her back on the schedule. Gowesky v. Singing River Hospital System (5th Cir. 2/6/03) [pdf].
Although perhaps of little consolation to Dr. Gowesky, and certainly not her counsel, Judge Edith Jones does note the 'unfairness' suffered by Dr. Gowesky to have contracted the disease under such selfless circumstances, to have suffered through not only chemotherapy but surgery, and then to be met with unwillingness by her supervisors to take advantage of her talents. But as Judge Jones notes,
Gowesky must recognize, nonetheless, that not all suffering — no matter how great, no matter how unmerited — gives rise to a compensable legal action. To obtain the right to present his case to a jury, a plaintiff must, at minimum, adduce evidence upon which a rational jury could, as a matter of law, find in his favor. As much as this court admires Gowesky’s work and pities her suffering, she has, alas, failed to present such evidence.
It is recognition of that hard fact, and acting on it, that is necessary to ensure that the legal system remains a dispenser of justice rather than of sympathy, paid for with others' money.