SANDFRA OLIVER v. BIRCHWOOD ADULT DAY CENTER, ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3499-05T53499-05T5

SANDFRA OLIVER,

Plaintiff-Appellant,

v.

BIRCHWOOD ADULT DAY CENTER,

TRACY ROBINSON, WILLIAM H.

FROELICH, STEVEN FROELICH,

AND JANET OCASCIO,

Defendants-Respondents.

_______________________________________________________________

 

Argued December 12, 2006 - Decided July 5, 2007

Before Judges Axelrad, R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, L-0412-04.

Norman L. Kline argued the cause for appellant (Kline & Gast, attorneys; Mr. Kline, of counsel and on the brief).

Patrick T. Collins argued the cause for respondents (Norris, McLaughlin & Marcus, attorneys; Mr. Collins, of counsel and on the brief; Annmarie Simeone, on the brief).

PER CURIAM

Plaintiff Sandfra Oliver appeals from a March 3, 2006, order granting a motion to reconsider a February 3, 2006, order that denied the motion of defendants, Birchwood Adult Day Center (Birchwood), Tracy Robinson, William Frohlich, Steven Frohlich, and Janet Ocasio (collectively defendants) for summary judgment. After careful consideration of the record before us, we reverse the March 3, 2006 order and remand for further proceedings.

Plaintiff is a State licensed and certified social worker who became blind at the age of thirty-three due to meningitis. She has earned a Bachelor's Degree in Human Resource Management from the New Jersey Institute of Technology and a Master's Degree from Rutgers University. Her past employment includes a position as a Coordinator for the Resident Opportunity Self-Sufficiency Program with the Housing Authority of the Township of Woodbridge. Her responsibilities in that position included offering counseling to a caseload of approximately 170 families, managing the on-site computer center, implementing computer classes, and serving as the liaison between community groups and outside agencies. Prior to that, she was employed for two years as a social worker with the Housing Authority of Plainfield, where she assessed and managed residents for crisis intervention.

In June 2003, plaintiff responded to a newspaper advertisement posted by defendant Birchwood seeking a State licensed social worker "to provide case work and advocacy services to physically disabled adult program participants." Birchwood is an Adult Day Care facility located in East Orange. Defendant William Frohlich served as President and defendant Steven Frohlich served as the Administrator. At the time of the advertisement, Birchwood had one social worker, defendant Tracy Robinson, on staff. However, because the caseload was approaching a level that required, under N.J.A.C. 8:43F-12.2(c), a second social worker and because of its desire to lessen the burden on Robinson, Birchwood placed the advertisement for a social worker.

After receiving and reviewing plaintiff's resume, defendant Janet Ocasio, Birchwood's outside consultant, called plaintiff in for an interview. Ocasio claims that she did so even though plaintiff's resume showed that she did not meet all of the job requirements. On July 7, 2003, plaintiff interviewed separately with both Ocasio and William Frohlich, at which point they first became aware that plaintiff is blind. During the course of her interview with Ocasio, plaintiff discussed how she would be able to fulfill the requirements of the job and ways in which she would be able to compensate for her blindness. One tool discussed was a computer program named "JAWS" that scans documents and then reads back the scanned information. When plaintiff met with William, they discussed, among other things, how she would be able to review and produce documentation as required.

Following the interview, Ocasio apparently considered plaintiff as a viable candidate but she had concerns that plaintiff would not be able to perform the required outreach activities because of her inability to conduct "visual" assessments of clients' homes. Ocasio was also concerned whether plaintiff could perform intake activities and whether accommodations for her handicap might result in a significant and undue hardship to the program and other staff. Despite these concerns, a second interview with plaintiff was scheduled for July 9, 2003.

At the second interview, plaintiff met with Robinson alone, and then with Ocasio and Steven Frohlich. Ocasio and Steven questioned plaintiff about her ability to maneuver around the facility and about how she would fulfill her client intake duties. Plaintiff responded that she would use her cane or a seeing-eye dog, if necessary. As for her intake duties, she replied that she would label the eight different sections of each client's file in Braille and would work in the pertinent area of the file using the "JAWS" computer program.

Following this final interview, while plaintiff waited for her ride, Ocasio, Steven and William discussed their impressions. They felt that plaintiff had not proven that she could fulfill the essential functions of the job and that they would not adequately be able to accommodate her disability. They were concerned that hiring plaintiff would place an additional burden on Robinson, which was contrary to their goal of easing Robinson's burden. They decided not to hire plaintiff, and Ocasio returned to where plaintiff was waiting to inform plaintiff of that decision. Ocasio told plaintiff that although they was impressed with plaintiff's experience, education, and demeanor, they could not hire her because they did not believe that plaintiff would be able to maneuver around the building. Plaintiff contested this, stating that she had had no problem at her previous position and that Birchwood would not pose any significant problem for her. Ocasio then rubbed plaintiff's arm and replied, "I don't think you can maneuver this building. I can't hire you."

On August 25, 2005, plaintiff filed a complaint in the Law Division alleging that Birchwood and the named employees had violated the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, by refusing to hire her because of her disability and by failing to accommodate her disability. Following discovery, defendants moved for summary judgment. Oral arguments were heard on February 3, 2006, at which time, defendants contended that plaintiff had failed to make out a prima facie case under NJLAD.

After recounting the contentions of each of the parties, the judge denied defendants' motion for summary judgment because of questions of credibility concerning the true reason(s) for Birchwood's decision not to hire plaintiff, the bona fides of its position that plaintiff's educational background might create a tension between her and Robinson and an awkwardness of fixing the appropriate level of compensation. The judge reasoned, in part, as follows:

In the case as brought, defendant Birchwood has gone to great length to demonstrate that plaintiff Oliver lacked experience and would not have been able to perform the essential job functions with or without reasonable accommodation. In their brief, it has outlined nearly ever responsibility of its social workers and provided a written explanation as to why plaintiff would not have been able to successfully do the job.

However, this court is convinced that there is a genuine issue of material fact as to whether this opinion was reasonably arrived at by Birchwood. [citations omitted.]

It is insufficient that, in retrospect, Birchwood has determined that plaintiff could not perform the job function with or without reasonable accommodation. Instead, according to N.J.S.A. 10:5-2.1, this opinion must be reasonably arrived at at the time Birchwood decided not to hire Ms. Oliver.

The judge concluded that a genuine issue had been raised as to whether Steven Frohlich had inquired about the use of the JAWS Program before Birchwood decided not to hire plaintiff. In addition, the judge noted that the only reason Ocasio gave plaintiff for Birchwood's decision not to hire her was the defendants did not think plaintiff could maneuver around the building. While the judge recognized defendants were not obligated to provide an exhaustive list of all the reasons she was not being hired, he concluded, in light of plaintiff's extensive experience and qualifications, that a logical inference could be drawn that Birchwood may not have made a reasonable inquiry prior to rejecting plaintiff's application. For those and other reasons stated on the record on February 3, 2006, the court denied defendants' motion.

Defendants promptly filed a motion for reconsideration, and by order dated March 3, 2006, the judge reversed his earlier decision and granted summary judgment in favor of defendants. Defendants argued that the judge erred in ruling that they were required to show that they considered accommodating the plaintiff before they decided not to hire her. Rather, case law required that plaintiff prove a prima facie case and if she was unable, summary judgment should have been granted. Seiden v. Marina Assocs. 315 N.J. Super. 451, 459 (Law Div. 1998). Consequently, defendants asserted that plaintiff never proved that she was qualified to work at Birchwood, regardless of the accommodations.

In granting the defendant's motion for reconsideration, the court recognized that the Third Circuit Court of Appeals, among others, has held that a defendant is not required to consider accommodations where the plaintiff could not perform the essential functions of the job. Therefore, the court acknowledged that it had erred in its initial ruling. It also held that plaintiff had not satisfied her burden of demonstrating a prima facie case of employment discrimination. The court agreed with defendants' argument that plaintiff could not adequately perform the job function of making home visits and that "any potential accommodation would be a fundamental alteration in the nature of the job or require the elimination of the essential job function." Furthermore, the plaintiff would not be able to perform the intake responsibility of Birchwood social workers. In drawing that conclusion, the judge found the following:

Since JAWS does not read most handwriting defendants would have to go back and type the handwritten pages contained in the archives files is order for [plaintiff] to read them. Presently, Birchwood has nearly two hundred active client files. . . . even if JAWS could read the files it would take plaintiff nearly two working hour days to obtain information from one file.

The plaintiff now appeals the trial court's grant of the defendants' motion for reconsideration, which, of course, granted summary judgment.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). That is to say, accepting as true all evidence supporting the party opposing the motion and according to him or her the benefit of all favorable inferences, if reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). Upon appellate review, the court reviews the grant or denial of summary judgment applying the same standard as the trial court and, in effect, conducts a de novo review of the facts on the record. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

In a disparate treatment claim, New Jersey has adopted the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which requires that the plaintiff first prove a prima facie claim of discrimination by demonstrating that he or she:

(1) belongs to a protected class; (2) applied for or held a position for which he or she was objectively qualified; (3) was not hired or was terminated from that position; and (4) the employer sought to, or did fill the position with a similarly-qualified person.

[Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005) (citations omitted); Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002).]

In reconsidering his earlier denial of defendants' motion for summary judgment, the judge decided that plaintiff was unable to show the second prong of a prima facie case of disability discrimination, that is, that she was otherwise qualified to perform the essential functions of the job with or without an accommodation by the employer. In so finding, the judge focused primarily on two of the fifteen duties listed in the job description maintained by Birchwood: (1) plaintiff's inability to conduct home visits and home assessments in the clients' homes; and (2) her inability to read and maintain clients' charts, which primarily consisted of handwritten notes of approximately 250 pages each. Finding plaintiff unable to carry out these two duties, the judge granted summary judgment in favor of defendants.

At the prima facie stage, the evidentiary burden is "rather modest." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). See also DeWees v. RCN Corp., 380 N.J. Super. 511, 524 (2005). "Procedurally, courts have recognized that the prima facie case is to be evaluated solely on the basis of the evidence presented by the plaintiff, irrespective of defendants' efforts to dispute that evidence." Id. at 448.

The establishment of the prima facie case creates an inference of discrimination[.] [A]t that point, the matter moves to the second stage of McDonnell Douglas, when the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer's action.

In the third stage of the burden-shifting scheme, the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the reason for the employment decision.

[Id. at 449 (citations omitted).]

In deciding that plaintiff would be unable to conduct home visits and assessments, the court made factual assessments which it had resisted when it initially ruled on the motion for summary judgment. In doing so, it did not view the facts in the light most favorable to plaintiff, as required by R. 4:46-2 and Brill, supra, 142 N.J. at 540.

Instead, the court adopted defendants' argument that N.J.A.C. 8:43F-5.1(a) requires specifically that a social worker make a "visual" assessment of a client's home. Based on this requirement, the judge determined that plaintiff was incapable of carrying out such an assessment. The subject regulation states in full:

Prior to admission of the participant, a member of the interdisciplinary team shall perform an assessment of the participant's home environment. The assessment shall be documented in the participant's medical record and shall include assessment of at least the following:

1. Living arrangements;

2. The participant's relationship with his or her family;

3. Amenities and facilities available, such as heat, toilet and bathing facilities, and provisions for preparing and storing food;

4. Existence of environmental barriers, such as stairs, not negotiable by the participant; and

5. Access to transportation, shopping, religious, social, or other resources to meet the needs of the participant.

[N.J.A.C. 8:43F-5.1(a).]

As is clear from the language quoted above, there is no literal requirement for a "visual" assessment. Plaintiff countered defendants' assertion of such a requirement by stating that she had performed similar assessments in the past as a social worker by talking to the clients and their families and by utilizing her other senses.

Also, the court recognized, as we do, that plaintiff may have difficulty with transportation for her home visits, but plaintiff contends an organization known as "Access Link" would provide transportation, or she would take a cab or walk. Given the applicable standard of review, we are convinced that this issue was not ripe for summary judgment, as there exists a dispute as to whether plaintiff would be able to meet this requirement.

Turning to the judge's other consideration, whether plaintiff would be able to read and maintain client files, we reach a similar conclusion. This issue was not ripe for summary judgment. The judge found that plaintiff would not be able to read the files, which normally range in excess of two-hundred pages and are periodically updated, in a timely manner. The judge based this on the fact that the free software that plaintiff proposed to use, "JAWS," was incapable of storing information and therefore anytime defendant wanted information from a file she would have to scan the entire section over and that "JAWS" would not distinguish updates to the file.

In granting the motion, the judge again adopted defendants' argument that the "JAWS" program "reads back documents at a rate of approximately four minutes per page" and that "it would take plaintiff nearly two working hour days to obtain information from one file." As the person in this position was expected to meet with an average of eight clients per day and to review their files beforehand, the judge determined that plaintiff would not be able to fulfill this function even with an accommodation.

We note that the rate at which "JAWS" reads a page, relied upon by the judge, was not based on a certification, affidavit, or other form of evidence and was merely an argument of counsel. Moreover, there existed a factual dispute as to the capacity of the software program to read handwritten notes. Defendants maintain that the software is unable to read handwritten notes, while plaintiff counters by arguing that in her experience, the program is able to read neatly written handwritten notes. As much of a client's file consists of handwritten notations, the capacity of "JAWS" to read those notes is an important factor in determining whether plaintiff would be able to perform the function of maintaining and reading client files. The judge's acceptance of facts not in evidence and facts that are the subject of legitimate dispute renders the grant of summary judgment inappropriate.

Reversed and remanded for further proceedings.

 

In the caption the surname of William and Steven is spelled "Froelich," however, we will utilize "Frohlich" based upon information contained in the record, including William's email signature.

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A-3499-05T5

July 5, 2007