ANTHONY DEVITO v. NEW JERSEY DEPARTMENT OF TRANSPORTATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1100-07T31100-07T3

ANTHONY DEVITO,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF

TRANSPORTATION and DR.

MICHAEL MAKOWSKY,

Defendants-Respondents.

_______________________________________________________

 

Submitted January 5, 2009 - Decided

Before Judges R. B. Coleman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-398-06.

Brian M. Cige, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent New Jersey Department of Transportation (Melissa H. Raksa, Deputy Attorney General, of counsel; Kathleen F. Doran, Deputy Attorney General, on the brief).

Parker McCay, P.A., attorneys for respondent Dr. Michael Makowsky (Lisa S. Grosskreutz, on the brief).

PER CURIAM

Plaintiff Anthony DeVito appeals from orders entered on September 20 and September 27, 2007, granting summary judgment in favor of defendants the New Jersey Department of Transportation (DOT) and Dr. Michael Makowsky. In his complaint, plaintiff alleges that the DOT denied him employment based upon his disability, contrary to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and that Dr. Makowsky aided and abetted in that discrimination. DeVito contends that, at a minimum, genuine issues of material fact exist which preclude the grant of summary judgment. We disagree and, accordingly, we affirm the orders granting summary judgment.

DeVito first learned in 1993 that he had contracted Hepatitis C. In 1998, he began receiving Social Security disability benefits as a result of his illness. Around that same time, his primary care physician, Dr. William S. Albert, advised DeVito that he should limit his lifting to no more than fifty pounds. Occasionally, DeVito would complain of fatigue, and in 2001, he was placed on the liver transplant list at NYU Medical Center. Despite collecting disability benefits, DeVito did not consider himself disabled.

In January 2003, DeVito submitted an application to the DOT for employment as a Bridge Operator Trainee. The Department of Personnel's (DOP) Job Specification 40349 indicates that a Bridge Operator Trainee functions under the close supervision of a supervisor in the operation of one or more drawbridges and in the performance of other related duties. The job specification describes the pertinent duties as follows:

Maintains bridge houses, bridge walkways, sidewalks and all work areas in a safe, clean condition at all times including but not limited to sweeping, washing and waxing floors, cleaning windows, snow removal and removal of debris from pedestrian sidewalk, storage and disposal of garbage in a safe and proper manner.

Responds to emergency situations including snow removal and ice control and is available day or night as required.

The person filling the position of Bridge Operator Trainee must have the following abilities:

Ability to respond to emergency situations including snow removal and ice control.

Ability to work at heights, climb ladders, stairs and structural members over water, for routine inspection and re-lamping of navigation lights and features.

. . . .

Ability to inspect and perform limited maintenance work . . . of machinery.

The DOP's Classification Questionnaire enumerates the certain duties to be performed by a Drawbridge Operator which, are considered cause for separation of a trainee who fails to attain the requisite level of performance:

When a bridge malfunctions . . . use manual controls and emergency operating procedures to complete the lift and return bridge to closed position, includes climbing ladders . . . pushing and pulling levers to control brakes, clutch and other machinery, using fall arrest gear to walk on catwalks and other areas where the danger of falling in water exists.

Mop floors, clean bathrooms . . . and performs other household duties. This requires filling a bucket with water (21-30 lbs.) and carrying it up and down stairs.

. . . .

Check bridge upon entry to shift, walking entire length to inspect bridge for problems . . . . Requires climbing of stairs or ladders to access upper and lower areas of the bridge.

[O]n occasion, has to climb stairway . . . (80 to 100 feet) . . . .

Operate snow blowers . . . . Requires pulling to start the engine . . . and pushing the snow blower if traction is limited. Also must use a shovel to remove snow from the bridge . . . .

Uses line trimming equipment to trim weeds . . . . Requires person to carry trimmer and operate it holding it out, away from body.

In his deposition, taken on March 29, 2007, Kenneth Nuegebauer, Supervisor of Bridge Operations, testified that a Drawbridge Operator is not an easy job. It involves changing gears on the bridge; cranking out locks that hold the bridge down; lifting grates; climbing and crawling; lifting deliveries weighing upwards of fifty pounds; and snow and ice removal.

Similarly, when Steve Iorio, the DOT's Manager of Human Resources, was deposed on that same date, he testified that the aforementioned job specifications are essential functions of a Bridge Operator Trainee. An individual must be able to perform them without assistance. On the other hand, the DOP's general job specification, applicable to a range of titles, provides:

Persons with mental or physical disabilities are eligible as long as they can perform the essential functions of the job after reasonable accommodation is made to their known disability. If the accommodation cannot be made because it would cause the employer undue hardship, such persons may not be eligible.

Iorio stated, however, that a workplace accommodation is not used by the DOT in the evaluation of a prospective employee. An employee must perform the essential job functions of the job at the time of hire without accommodation. Alternatively, a prospective employee must request a job accommodation, provide evidence that he or she requires such an accommodation, and with such accommodation, can perform the essential functions. Additionally, Iorio expressed the view that it would be an unreasonable accommodation to deploy a crew in order to assist a Drawbridge Operator.

Nuegebauer interviewed DeVito for the Bridge Operator Trainee position on January 9, 2003. During the interview, he explained to DeVito the essential functions of the position. Nuegebauer was not aware at that time that DeVito had a disability or handicap. At the end of the interview, Nuegebauer advised DeVito that he would be placed in the next opening for the position and that he should expect a phone call from the DOT in September 2003.

In September 2003, DeVito did receive a phone call from the DOT advising him that there was a position available and that he would be contacted for orientation. On October 21, 2003, DeVito was contacted by the DOT Human Resources and told to report to Trenton for orientation, which he did. At orientation, Human Resources referred DeVito to the Corporate Health Center (CHC) for a standard pre-employment physical examination. According to Iorio:

The prospective employee is sent to the doctor to be evaluated medically based on the job duties and the essential functions of the job. That information is then faxed back to us and based on the outcome of the physician's determination, the employee is either given employment or they're denied employment based on the medical facts.

Dr. Makowsky conducted DeVito's physical evaluation at CHC. In his deposition, Dr. Makowsky stated that the pre-employment physical evaluation typically includes a medical history, physical examination and an eye exam. He further testified that pre-employment examinations are not scheduled with a particular doctor on CHC's staff. He acknowledged, however, that he has performed numerous examinations for prospective DOT employees. Dr. Makowsky explained that he is familiar with the essential functions of many DOT jobs and that he would request job descriptions from the DOT if he was uncertain about the essential functions of a particular position.

Dr. Makowsky testified that he does not make determinations as to reasonable accommodations. Instead, it is his responsibility to note any physical limitations that could affect the applicant's ability to perform the specified job duties. When asked about his role in identifying whether reasonable accommodations could be made, Dr. Makowsky responded, "A reasonable accommodation is a determination by the employer and not by the physician doing the physical." He added, "if I felt someone could only lift twenty-five pounds and the requirement in the job position was fifty pounds, in certain situations I would write down 'maximum lifting of twenty-five pounds' and leave it up to the employer to decide whether they can accommodate that."

As part of his medical history, DeVito disclosed to Dr. Makowsky that he had been infected with Hepatitis C. Dr. Makowsky also made the following independent observations:

[DeVito] had a medical condition and it was a liver problem and the striking findings, and I recall that his legs were hugely edematous, meaning very swollen.

He had a very large liver, which was palpable into his pelvis, which normally you don't feel it under the coastal margin. So he obviously had a medical condition that wasn't acute, it was chronic. He was very pale and appeared weak.

And I was concerned . . . about his ability to do what was expected of the bridge operator trainee.

Dr. Makowsky recorded such findings on DeVito's examination report, and listed his status as "Pending." DeVito also failed the vision test, which necessitated that he obtain a prescription for glasses and return for re-testing. DeVito acquired corrective lenses and subsequently passed the vision test.

Due to his concerns about DeVito's ability to perform the essential functions of the position sought, Dr. Makowsky requested that DeVito obtain a letter from his primary care physician regarding his ability to perform the job duties. Thereafter, Dr. Makowsky received a handwritten letter from Dr. William S. Albert, dated October 24, 2003, which stated:

[DeVito] is under my care for several years because of chronic liver disease related to Hepatitis C. This condition has remained stable during this time. He is capable of gainful employment of a less strenuous type, and if it's a kind in which he will not be overly fatigued.

This letter served to reinforce Dr. Makowsky's concerns about DeVito's ability to perform the related job functions. Dr. Makowsky then spoke with Dr. Albert and discussed the job requirements with him. After that conversation, Dr. Makowsky informed the DOT of his impression that DeVito was not medically qualified for the job. Among other things, Dr. Makowsky testified that he was concerned that if DeVito cut himself, he would likely hemorrhage.

In a letter, dated November 25, 2003, the DOT informed DeVito that he was not medically approved for employment as a Bridge Operator Trainee. DeVito did not ask the DOT for an accommodation, either at that time or at any other time. Instead, in early January 2004, DeVito obtained a letter from Dr. Lewis W. Teperman, who stated on a prescription form, without elaboration, "Please be advised that the above named pt. [patient] [DeVito] is cleared to return to full time work without limitations from a transplant surgery specialty.

On November 18, 2005, DeVito filed a two-count complaint in the Hudson County Superior Court against defendants the DOT and Dr. Makowsky, alleging that: (1) the DOT violated the LAD, N.J.S.A. 10:5-12, by denying DeVito employment; and (2) Dr. Makowsky violated the LAD by aiding and abetting the DOT in the discrimination of DeVito.

Dr. Makowsky moved for summary judgment, and the DOT joined that motion. On September 20, 2007, Judge Paul T. Koenig entertained oral argument on the motions, and at the conclusion of the arguments, granted summary judgment to both defendants. In granting summary judgment, Judge Koenig reiterated the relevant facts and determined that DeVito is, indeed, handicapped for purposes of the LAD, and he is in a protected category. The judge noted that DeVito had the additional burden of proving that he is capable of performing the essential functions of the position sought, but that he could not do so. The judge stated,

Here it's clear that although the plaintiff applied for the bridge operator trainee position, he was not qualified. The DOT obtained medical documentation clearly stating that he could not perform strenuous labor which was a bona fide requirement for the bridge operator trainee.

Further, the court concluded that DeVito was unable to demonstrate that the DOT reached its decision on a discriminatory basis.

As for Dr. Makowsky, the judge found no credible evidence that he engaged in discrimination by concluding DeVito was not medically qualified for the job. The judge rejected plaintiff's assertion that a triable issue of fact had been raised as to whether Dr. Makowsky had given substantial assistance or encouragement to the DOT with regard to the alleged discrimination, commenting as follows:

Well, the doctor gave his opinion to DOT knowing that DOT would rely on it. There's no question about that. But it's an honest opinion and it's a correct opinion. And it's a correct opinion as affirmed by the plaintiff's own doctor. So he didn't do anything wrong. What's he supposed to do if he finds adverse information about the plaintiff's medical history? Conceal it? Not divulge it? He's there for one single purpose and he did what he was supposed to do. I think Dr. Makowsky acted properly in all respects. I don't think he did anything wrong.

On appeal, plaintiff again contends that summary judgment was granted in error.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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; see also Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). On appeal, the court reviews the summary judgment order de novo employing the same standard as the motion court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The appellate court decides whether there was a genuine issue of material fact, and if none existed, it decides whether the trial court's ruling on the law was correct. "All inferences of doubt are drawn against the movant in favor of the opponent of the motion." Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). Nevertheless, "where the party opposing summary judgment points only to disputed issues of fact that are 'of an insubstantial nature,' the proper disposition is summary judgment. Brill, supra, 142 N.J. at 529. Stated another way, "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Id. at 540 (internal citation omitted).

"Although it prohibits discriminatory employment practices, [the] LAD acknowledges the right of employers to manage their businesses as they see fit." Viscik v. Fowler Equip. Co., Inc., 173 N.J. 1, 13 (2002). The LAD prohibits "any unlawful discrimination against any person because such person is or has been at any time disabled or any unlawful employment practice against such person, unless the nature and extent of the disability reasonably precludes the performance of the particular employment." Raspa v. Office of Sheriff, 191 N.J. 323, 336 (2007) (quoting N.J.S.A. 10:5-4.1). Similarly, N.J.S.A. 10:5-29.1 provides:

Unless it can be clearly shown that a person's disability would prevent such person from performing a particular job, it is an unlawful employment practice to deny to an otherwise qualified person with a disability the opportunity to obtain or maintain employment . . ., solely because such person is a person with a disability . . . .

However, the LAD does not

prevent the termination or change of the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment, nor to preclude discrimination among individuals on the basis of competence, performance, conduct or any other reasonable standards . . . .

[N.J.S.A. 10:5-2.1.]

Under N.J.S.A. 10:5-4.1 and 10:5-2.1, "an employer found to have reasonably arrived at an opinion that a job applicant cannot do the job, either because the applicant is unqualified or because of a given handicap, cannot be found liable for discrimination against that applicant." Anderson v. Exxon Co., 89 N.J. 483, 497 (1982). It is well settled that the "import of LAD is that the handicapped should enjoy equal access to employment subject only to limits that . . . cannot be overcome." Raspa, supra, 191 N.J. at 336. Thus, our courts adhere to a broad interpretation of LAD, yet the law must be applied sensibly. Id. at 496.

New Jersey courts have adopted the burden shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for determining whether an employer has violated the LAD. Viscik, supra, 173 N.J. at 13-14. In Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005), the Court explained the application of McDonnell Douglas, supra, as follows:

Under McDonnell Douglas, a plaintiff in a failure to hire case must first prove a prima facie case of discrimination; to do so, a plaintiff must prove the following: that plaintiff (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained open and the employer continued to seek applications for persons of plaintiff's qualifications.

If the plaintiff establishes a prima facie case, then

the burden of going forward shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. After the employer does so, the burden shifts back to the plaintiff to show that the employer's proffered reason was merely a pretext for discrimination. To prove pretext, however, a plaintiff must do more than simply show that the employer's reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent.

[Viscik, supra, 173 N.J. at 14 (internal citations omitted).]

In the present case, DeVito cannot establish a prima facie case under McDonnell Douglas, and assuming arguendo that he can, the DOT established a legitimate, non-discriminatory reason for declining to hire him that is in no manner pretextual.

As a threshold matter, the DOT reasonably concluded, based on a medical evaluation, that DeVito is not qualified to perform the physical tasks of a Bridge Operator Trainee. DeVito's assertions that he can perform the essential functions of the job do not satisfy his burden in light of Dr. Makowsky's and Dr. Albert's opinions that he could not perform strenuous labor. Pointedly, DeVito did not provide the DOT or the motion judge with evidence that contradicted Dr. Makowsky's findings. Although DeVito testified in deposition that he obtained Dr. Teperman's note, stating that DeVito was cleared to return to work without limitations, there is no testimony that DeVito even provided that note to the DOT. Assuming he did, there is nothing in the record that provides the basis for any modification of DeVito's disability status or that suggests Dr. Makowsky's conclusions were not the product of sound medical analysis and judgment. Thus, the motion judge justifiably concluded that DeVito had not and could not satisfy the second requirement of the McDonnell Douglas test. He had not proven or created a genuine issue of fact as to his ability to perform the essential functions of the job.

Assuming for argument's sake that DeVito could establish a prima facie case, his claim still must fail because the DOT has clearly articulated a legitimate, non-discriminatory reason for declining to hire DeVito. The DOT relied upon a credible medical evaluation indicating not only that DeVito cannot perform the essential functions of the job but also that he was at risk for hemorrhaging if he were cut in the course of performing the job. DeVito's own physician, Dr. Albert, also expressed concerns about DeVito's inability to handle strenuous tasks associated with the job, thus inferentially confirming Dr. Makowsky's opinion that DeVito was not physically qualified for the position sought.

The DOT reasonably relied upon Dr. Makowsky's medical report and concluded that the nature and extent of DeVito's disability precluded him from working as a Bridge Operator Trainee. This employment decision was legitimate in light of the total circumstances and falls within the purview of the DOT's management of its business as it sees fit. See Viscik, supra, 173 N.J. at 13; Anderson, supra, 89 N.J. at 483.

We discern no evidence in the record that would lead a reasonable juror to conclude that the reasons offered by the DOT for not hiring DeVito were pretextual or discriminatory. The DOT does not deny that its hiring decision was based on the medical evaluation. Although DeVito did not reveal to the DOT, on his application or during the course of his interviews, that he had Hepatitis C or that he was collecting Social Security disability benefits, those facts are not in dispute. Neither is it disputed that the report Dr. Makowsky provided to the DOT stated "the examinee is not medically qualified to do the essential functions of the job." Thus, the sole issue is whether Dr. Makowsky's conclusion was legitimately reached or supported by substantial credible evidence. As to that, we agree with the motion judge that there is nothing in the record to suggest that the doctor's opinion was not honest or correct. It, therefore, cannot be fairly said that the DOT's reason for failing to hire him were pretextual.

DeVito further contends that the DOT was obliged to provide him with reasonable accommodations so that he could be hired, but failed to do so. This argument is without merit.

In Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J. Super. 385, 397 (App. Div. 2002), the court noted that "[t]he LAD does not specifically address reasonable accommodation, but our courts have uniformly held that the law nevertheless requires an employer to reasonably accommodate an employee's handicap." Tynan further explained that "under the law an employee must request an accommodation . . . [.]" Id. at 399; see also Viscik, supra, 173 N.J. at 20 (finding failure to request accommodation from defendant employer fatal to an accommodation claim). Following an employee request for accommodation, the employer must engage in an informal interactive process with the employee. Tynan, supra, 351 N.J. Super. at 400. "Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation." Ibid.

Tynan, supra, also articulated that:

To 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 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.

[Id. at 400-401.]

DeVito conceded that he never requested an accommodation. Moreover, there is no evidence that DeVito could have been reasonably accommodated. DeVito does not attempt to provide any evidence suggesting the DOT acted in bad faith or in what fashion the DOT could have accommodated him. The only evidence in the record regarding this issue is the statement of Iorio, which blatantly contradicts DeVito's position: "If [DeVito] needed assistance on the drawbridge, the possibility of deploying a crew out to assist him in the maintenance of the bridge . . . would be an absolute unreasonable accommodation . . . ." However, this affirmative defense is not proffered by the Department. Our Supreme Court informs our view that reasonable accommodation becomes an issue only in one of two instances: (1) "where the plaintiff affirmatively pleads failure to reasonably accommodate as a separate cause of action," and (2) where the employer raises the "employee's inability to perform the job as a defense." Viscik, supra, 173 N.J. at 20. Under the circumstances, the trial court properly determined that the DOT did not "fail" to provide DeVito with reasonable accommodations.

DeVito contends that Dr. Makowsky aided or abetted in the discriminatory conduct of the DOT, contrary to N.J.S.A. 10:5-12(e), which provides that it is an unlawful employment practice or an unlawful discrimination: "For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." Our determination that the DOT did not violate the LAD in its course of dealing with plaintiff renders DeVito's claim against Dr. Makowsky without merit.

In Tarr v. Ciasulli, 181 N.J. 70, 84 (2004), remanded on other grounds, 194 N.J. 212 (2008), the Court acknowledged that the Restatement (Second) of Torts 876(b) (1979) sets forth the proper standard for aiding and abetting liability:

Section 876(b) of the Restatement imposes concert liability on an individual if he or she "knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself." We agree that the Restatement provides the proper standard by which to define the terms "aid" or "abet" under the LAD. Also, the Restatement definition is consistent with the common usage of those terms. Thus, in order to hold an employee liable as an aider or abettor, a plaintiff must show that "(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation."

[Hurley v. Atl. City. Police Dep't, 174 F.3d 95, 129 (3d Cir. 1999) (citations omitted).]

Since the DOT did not perform a wrongful act causing DeVito injury, the first element of the standard is not satisfied. Further, DeVito has not presented any evidence that Dr. Makowsky was aware of his role in any illegal or tortious activity or that he knowingly or substantially assisted the DOT in violating the LAD.

Dr. Makowsky performed a routine physical examination and appropriately followed up with DeVito's personal physician to confirm his finding that DeVito was physically incapable of performing the essential job functions of the position sought. Dr. Makowsky's consideration of DeVito's Hepatitis C was not for discriminatory purposes. It was but one consideration in order to determine whether DeVito was fit for the particular position.

 
We affirm substantially for the reasons expressed by Judge Koenig in his thorough and well-reasoned oral decision of September 20, 2007.

Affirmed.

The job specification notes that the examples of work for this job title are for illustrative purposes only. A particular position using this title may not perform all duties listed in this job specification. Conversely, all duties performed on the job may not be listed.

The DOT claims that it never received this form and that no certification, testimony or other proof was proffered by plaintiff to establish that claim. For purposes of this review, we will assume the note was conveyed to the DOT.

(continued)

(continued)

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A-1100-07T3

July 15, 2009