JOHN CARTER v. DANNY S. KIERNAN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6350-04T36350-04T3

JOHN CARTER,

Plaintiff-Appellant,

v.

DANNY S. KIERNAN, FRANK M. NUCERA, JR.,

TOWNSHIP OF BORDENTOWN and BORDENTOWN

POLICE DEPARTMENT, JOINTLY,

SEVERALLY AND IN THE ALTERNATIVE,

Defendants-Respondents,

and

ROBERT W. CARTY,

Defendant.

________________________________________________________________

 

Argued October 17, 2006 - Decided December 22, 2006

Before Judges Skillman, Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-1632-03.

James E. Burden argued the cause for appellant (Clifford L. Van Syoc, attorney; Mr. Burden, on the brief).

Leslie A. Parikh argued the cause for respondents (Gebhardt & Kiefer, attorneys; Sharon H. Moore, of counsel; Ms. Parikh, on the brief).

PER CURIAM

Plaintiff, John Carter, a Bordentown Township Police Officer, appeals from a summary judgment dismissing his disability discrimination and retaliation claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. He argues on appeal that the trial judge erred by not viewing the record in the light most favorable to him and in concluding that he failed to establish a prima facie claim under the LAD. We reject plaintiff's arguments and affirm.

Plaintiff became a police officer with the Bordentown Police Department (Department) in 1991. He brought this action against the Township, the Department, Chief Danny S. Kiernan, Lieutenant Frank M. Nucera, Jr., and Dr. Robert W. Carty, who was plaintiff's personal physician and also provided medical services for the Township. The claim against Carty was dismissed by the trial court as time-barred. Plaintiff does not challenge that decision on appeal.

In early 1999, plaintiff began to experience symptoms of what was later diagnosed as Lyme disease. However, Carty failed to make a correct diagnosis for several months. Carty and other physicians could find no medical explanation for plaintiff's symptoms. Plaintiff became depressed and began to exhibit bizarre behavior. His father and grandfather died in February 1999. Plaintiff became morbid, believing he was gravely ill from a mysterious condition that his doctors were unable to diagnose. He was hospitalized twice during this period. Plaintiff's wife was pregnant. The stress of plaintiff's deteriorating mental and physical condition was causing stress in the marriage and posed the potential for adverse consequences regarding the pregnancy.

Plaintiff's wife reached out to members of the Department and Carty for assistance. After plaintiff was previously diagnosed during one of his hospital stays with anxiety, grief reaction, and depression, a meeting occurred at Carty's office, which involved plaintiff and his wife, Kiernan and Nucera. As a result, on March 24, 1999, on Carty's referral, plaintiff was involuntarily committed to the mental health unit of a local hospital, from which he was transferred to another mental health facility. Plaintiff remained confined for about one week.

Further diagnostic tests were performed, and in May 1999, the Lyme disease was diagnosed. A course of intravenous (IV) therapy was begun. Plaintiff remained on an extended leave of absence until October 1999. Upon his return to work, appellant requested light duty because the continual IV treatment was ongoing. The Department accommodated plaintiff's request and allowed him to perform dispatch duty rather than patrol duty. This continued for fifty-six days. Plaintiff was then cleared by his treating physician for a return to full duty. He was returned to his regular duty assignments. He never again requested any further accommodation relevant to his Lyme disease, his treatment for that condition, or for any other reason.

Plaintiff alleges that on February 16, 2000, Kiernan received a letter from an attorney representing plaintiff. The record does not contain a copy of the letter. From the information provided in the record, it appears the attorney was investigating a potential medical malpractice claim against Carty for his failure to timely diagnose plaintiff's Lyme disease, and the circumstances surrounding plaintiff's involuntary civil commitment. There was apparently a request (either in the letter, if indeed there was a letter, or by plaintiff in his discussion with Kiernan) for a copy of plaintiff's personnel file. Kiernan expressed to plaintiff his displeasure with the prospect that he might be sued.

Plaintiff contends that from that time on he was subject to retaliation and harassment, because of his resistance to the civil commitment and the letter from his lawyer. Over the ensuing months, several disciplinary charges were brought against plaintiff. He alleges that these charges were meritless and brought against him for retaliatory purposes. We need not describe in detail the charges. They involved unauthorized absences from work (he was caught going to baseball and hockey games, to his son's wrestling match, and to Disney World when he was supposed to be home sick), and sleeping while on duty. After proceedings before the Office of Administrative Law, the Merit System Board (Board) sustained the charges. Plaintiff was terminated from his employment as a police officer. Plaintiff appealed the Board's decision, and during the pendency of this appeal, another panel of this court decided the appeal from the Board's decision. (John Carter v. Township of Bordentown, A-1566-04T2 (App. Div. May 8, 2006), certif. granted, 188 N.J. 217 (2006)). The panel found that some of the sleeping on duty charges were time-barred. With that exception, the panel affirmed the Board's adjudication of administrative violations. However, the panel found the sanction of removal excessive and remanded to the Board for imposition of a lesser sanction.

We are satisfied from our review of the record that, in granting summary judgment to defendants, Judge LeBon viewed the material facts in the light most favorable to plaintiff, as required in a summary judgment proceeding. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). She found that plaintiff failed to establish a prima facie case of disability discrimination or retaliation under the LAD. She therefore granted summary judgment to defendants dismissing the complaint.

We apply the same standard, deciding first whether there was a genuine issue of material fact, and, if not, whether the trial judge's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

The LAD prohibits discrimination because of a person's disability. N.J.S.A. 10:5-4.1. We accept, as did the trial judge, that as a result of his Lyme disease, plaintiff suffered from a disability. See N.J.S.A. 10:5-5q (defining "disability" to include a "physical disability [or] infirmity . . . which is caused by . . . illness . . . .").

Plaintiff claims the Department failed to accommodate his disability. In rejecting the claim, Judge LeBon said:

What is clear is that at all times when he requested an accommodation an accommodation was made[.] [W]hen he was first diagnosed with Lyme disease and had to be treated and was only able to come back on light duty they gave him light duty.

There's nothing in the record that would indicate that he was forced out of the light duty before he was able to change. It's clear that he never informed anyone on his job that he needed some other kind of an accommodation and employers aren't supposed to guess at what these accommodations are. He believed that the medication made it difficult for him to perform his job perhaps even make him drowsy yet he said he never bothered to tell anybody about it.

We agree. When plaintiff first returned to work and was undergoing daily IV therapy, he requested an accommodation, which was uneventfully granted. He was then medically cleared for full duty, which he resumed. He never again requested any further accommodation. It is incumbent on the disabled employee to request an accommodation. Tynan v. Vicinage 13 of the Superior Ct. of N.J., 351 N.J. Super. 385, 399 (App. Div. 2002). The record does not support plaintiff's argument that his superiors were on notice of his continuing need for accommodation because of the effects of his medication, resulting in his drowsiness and other alleged symptoms. Plaintiff further argues that his employer failed to fulfill its obligation to participate in an interactive process with him to accommodate his disability. Plaintiff's contentions are neither factually nor legally supported. The required interactive process to develop a suitable accommodation is a sensible approach because each party holds information not available to the other and not easily obtainable by the other with respect to what kind of work the employee believes he or she is able to perform and what kind of work the employer can reasonably make available. Taylor v. Phoenixville School Dist., 184 F.3d 296, 316 (3rd Cir. 1999). However,

[t]o show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith. Mengine, 114 F.3d at 420; Bultemeyer, 100 F.3d at 1285;

[Id. at 319-20 (emphasis added).]

An employee has a duty to request accommodation, because the employer is not expected to read the employee's mind. In Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 332 (3d. Cir. 2003), the court held:

The law does not require any formal mechanism or "magic words," to notify an employer such as MBNA that an employee needs an accommodation. Taylor, 184 F.3d at 313. Moreover, as the court noted in Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir. 1996), circumstances will sometimes require "[t]he employer . . . to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help." However, either by direct communication or other appropriate means, the employee "must make clear that . . . [he/she] wants assistance for his or her disability." Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000). The employer must have enough information to know of "both the disability and desire for an accommodation," Taylor, 184 F.3d at 313, or circumstances must at least be sufficient to cause a reasonable employer to make appropriate inquiries about the possible need for an accommodation.

The quantum of information that will be required will, therefore, often depend on what the employer already knows. Taylor, 184 F.3d at 313.

In Conneen, the dispute "center[ed] around whether Conneen voiced her desire for further accommodation to MBNA after the initial accommodation. Put another way, the issue . . . [was] whether the breakdown in the interactive process required under the ADA [was] attributable to MBNA or Conneen." Id. at 325 (internal citation omitted). The employer claimed it had no reason to believe that the accommodation initially provided was any longer necessary and that Conneen had no one but herself to blame if she felt she needed further accommodation. Id. at 331. The court held, "Although an employer is liable for discriminating against an employee in need of accommodation based upon the employee's known disability, neither the law nor common sense can demand clairvoyance of an employer in MBNA's position." Ibid. "Although MBNA clearly knew of Conneen's allegedly disabling morning sedation, it had every reason to believe that the condition no longer existed at the time of the June 1998 meeting, and Conneen did nothing to inform MBNA that it did." Ibid.

The situation in the case before us is similar. After the requested and granted light duty accommodation ended, plaintiff never said anything to his superiors to suggest a need for further accommodation. Nor did plaintiff's behavior or any other circumstances put the Department on notice of the need for an accommodation. Indeed, plaintiff has never articulated what sort of accommodation he believes he needed. Thus, the obligation to engage in an interactive process was never triggered. Viewing the evidence most favorably to plaintiff, no reasonable factfinder could conclude that defendants discriminated against plaintiff by failing to provide him with a reasonable accommodation based upon his disability.

We next address the retaliation claim. The LAD makes it unlawful:

[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 10:5-12d.]

To prove a claim for retaliation, a plaintiff must establish (1) that he or she engaged in a protected activity under the LAD, (2) the employer knew the plaintiff engaged in the protected activity, (3) plaintiff was thereafter subjected to an adverse employment action, and (4) there was a causal link between the plaintiff engaging in a protected activity and the adverse action. Jamison v. Rockaway Tp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). Plaintiff claims he was retaliated against because he resisted being civilly committed and because of the letter from his lawyer to Kiernan. He claims the adverse employment action was the false disciplinary charges brought against him. He contends he was treated differently in this regard than other members of the Department.

Judge LeBon found a lack of evidence to establish a prima facie showing of any of the Jamison prongs. We agree. Carty, who is not a subject of this appeal, was responsible for plaintiff's involuntary civil commitment. Whether Carty acted improperly in that regard does not affect the remaining defendants. Neither Kiernan nor Nucera were responsible for plaintiff's commitment. We fail to see how the letter from plaintiff's attorney constituted "protected activity" under the LAD. It related to a potential medical malpractice claim against Carty and an investigation of the circumstances surrounding plaintiff's commitment. There is no suggestion that the letter from the attorney threatened a potential LAD employment discrimination claim.

Plaintiff has failed to make a prima facie showing that the disciplinary charges against him were unfounded. They were based upon regulations of the Department and factually based allegations that plaintiff violated them. Although not necessary to our decision, our conclusion that the charges were meritorious is bolstered by the findings of the Board and another panel of this court. Nor has plaintiff made a prima facie showing that he was treated any differently than other members of the Department because of his disability, his resistance to the commitment or his lawyer's letter. Viewing the evidence most favorably to plaintiff, no rational factfinder could find that defendants retaliated against him based upon any protected activity under the LAD.

 
Affirmed.

In the remainder of our discussion we will assume there was a letter.

We are advised by the Clerk of the Court that certification was granted on the Township's petition.

(continued)

(continued)

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A-6350-04T3

December 22, 2006