KENNETH THORSON v. PSEG POWER, LLC

This case can also be found at 199 N.J. 515, 973 A.2d 383.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3607-05T1A-3607-05T1

KENNETH THORSON,

Plaintiff-Appellant,

v.

PSEG POWER, LLC, PSEG

SERVICES CORPORATION, and

PUBLIC SERVICE ENTERPRISE

GROUP,

Defendant-Respondent.

________________________________

 

Argued January 7, 2008 - Decided

Before Judges Stern, Collester and

C. L. Miniman.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-6448-03.

Edward A. Kopelson argued the cause

for appellant.

Christine A. Amalfe argued the cause for

respondent (Gibbons, attorneys; Susan L.

Nardone and Megan Frese Porio, on the

brief).

PER CURIAM

Plaintiff Kenneth Thorson appeals from the order of February 15, 2006, granting summary judgment to defendants PSEG Power, LLC, PSEG Services Corp., and Public Service Enterprise Group (PSEG), and dismissing the complaint. We reverse.

The facts set forth by plaintiff in opposition to summary judgment are as follows. Plaintiff began employment with PSEG in August 1971 and worked as a Combustion Turbine Operator (CTO) at PSEG's Essex Generating Station (Essex Station). Essex Station is comprised of twenty-nine generators and fifty-six individual turbines at five separate locations: Essex, Kearney, Hudson, Bayonne and Bergen. Each generator is connected to two turbines and housed in a separate building. Plaintiff worked at the Essex and Kearney locations which had forty-five turbines. The position of CTO requires an extensive amount of physical labor. Plaintiff was required to (a) operate the turbines, by walking from unit to unit; (b) troubleshoot, by accessing difficult to reach places with fast-moving parts; (c) check instrumentation, by monitoring gauges located anywhere from ground to ceiling level; and (d) maintain the turbines. Working overtime is an essential responsibility for a CTO, especially during the summer months when electricity demands are high. Overtime work can be either mandatory or voluntary. The reluctance of a CTO to accept overtime meant that others had to absorb the work. At times a CTO could work up to sixteen hours straight.

From April 27, 1992, until April 14, 2002, plaintiff was supervised by Frank Ameo, the area manager for the Essex, Kearny and Bayonne facilities as well as the CTO manager, operations manager, and station manager for the Essex Station. Part of Ameo's responsibilities included preparation or review of employee performance appraisals every two years. Two particular issues were consistently noted in plaintiff's performance appraisals: (1) his reluctance to work overtime; and (2) as a result, his general lack of productivity. In those categories, plaintiff was frequently rated "below standard." These matters were discussed with plaintiff, who attributed his avoidance of voluntary overtime work to leg fatigue.

On October 16, 2001, plaintiff presented his direct supervisor, John McKenna, with a letter from his treating physician, Dr. Richard Bruno, a psycho-physiologist and Director of the Post-Polio Institute in Englewood. Dr. Bruno diagnosed plaintiff with Post-Polio Syndrome (PPS), a neurological impairment causing progressive muscle weakness, pain and fatigue. He requested "reasonable accommodations" for plaintiff pursuant to the Americans with Disabilities Act (ADA) including:

Limited walking, crawling, stooping, bending and climbing stairs, ladders and stacks.

Limit overtime and shifts longer than 8 hours.

Moving oil barrels only with forklift.

Use of restroom within 250 feet of work area.

Transport available to drive to units.

Two 15-minute breaks and 30 minutes for lunch.

Increased operation, troubleshooting, and checking units while sitting.

Dr. Bruno spoke to Dr. Mark Magariello, PSEG's company physician, about the requested accommodations, and Dr. Magariello said he would speak with Ameo about the matter. Plaintiff and Ameo then met and reviewed Dr. Bruno's letter together to clarify plaintiff's difficulties and provide a reasonable accommodation. Plaintiff wanted to minimize standing and walking, and Ameo agreed to provide stools in the control rooms to reduce standing time and also make a golf cart available to plaintiff to reduce walking to separate buildings to inspect and service generators. Although plaintiff had been criticized in the past for not taking voluntary overtime, Ameo assured him that no one had ever been fired for refusing voluntary overtime. They agreed that plaintiff would work mandatory or "forced overtime," a term of art in the collective bargaining agreement, but would only work voluntary overtime if no one else was available. Plaintiff stated that those accommodations allowed him to manage his PPS and perform the essential functions of his job. He continued to work with the accommodations for fourteen months during which period his strength and physical condition improved.

While plaintiff contends his understanding with Ameo was that he would work forced overtime but not voluntary overtime, PSEG argues that Ameo could not modify plaintiff's overtime obligations as an accommodation since overtime was an essential component of a CTO's responsibilities and part of the collective bargaining agreement. It is undisputed that plaintiff's number of overtime hours continued to be significantly lower than other CTOs.

After his discussion with plaintiff, Ameo forwarded Dr. Bruno's letter to PSEG's Medical and Human Resources Departments. On October 23, 2001, plaintiff was examined in PSEG's Medical Department by Dr. Magariello. Dr. Magariello reviewed Dr. Bruno's letter with plaintiff, and found it problematic because it called for "limited" restrictions, a term Dr. Magariello found to be ambiguous because it lacked a precise limitation with reference to time or weight, such as no standing for more than a one to two-hour period during a shift or not lifting more than a certain number of pounds. He was unsure whether the requested restrictions were temporary or permanent. Dr. Magariello recommended that plaintiff follow up with Dr. Bruno to clarify the actual medical restrictions. Dr. Magariello also made several attempts to contact Dr. Bruno for clarification, but was unable to do so. A week later, on October 30, 2001, Dr. Magariello re-evaluated plaintiff and concluded that plaintiff could return to work full-duty without medical restrictions.

From June 3, 2002 to August 13, 2002, plaintiff was on non-occupational medical leave due to back problems unrelated to work. When he returned to work, he went for a customary re-evaluation by Dr. Magariello. Dr. Magariello imposed temporary light-duty restrictions to accommodate plaintiff's back problems until September 3, 2002.

On November 21, 2002, plaintiff met with Richard Rebori, his then direct supervisor, to discuss his bi-annual performance appraisal for the period from April 2000 through April 2002. He received an overall performance score of "below standard" in his willingness to accept pre-arranged overtime and respond to emergent "call outs." He was also criticized for being slow in performing assigned tasks. When Rebori completed the appraisal, he had not reviewed plaintiff's prior appraisals or spoken with any of plaintiff's prior supervisors. Rebori was also unaware of Dr. Bruno's letter, his previous request for accommodation, or plaintiff's prior arrangements with Ameo. The appraisal commented that Thorson's "adaptability to overtime is a recurring problem," and stated that plaintiff needed to improve his willingness to accept overtime and improve his availability.

Plaintiff said he was dismayed with this performance review because Ameo had assured him that he was not required to take voluntary overtime. He protested the evaluation to his indirect supervisor and plant manager, William Viola, who had replaced Ameo. Viola also received a copy of a letter from Dr. Bruno on December 23, 2002 in which he recited the accommodations that had been made by Ameo and stated:

Mr. Thorson received a performance evaluation in early December 2002. Although he has not seen a copy he was told that he is not accepting enough overtime. As per the reasonable accommodation suggested by us, agreed to by Dr. Magariello and implemented by Mr. Ameo, Mr. Thorson has the right to refuse overtime. But if he is alone at the end of his shift and units are on line, he can work the necessary additional hours until the job is done.

It would be helpful if Mr. Thorson were assured that PSEG is not intending to remove reasonable accommodations that are already in place and working so well, both for PSEG and for Mr. Thorson.

When Viola received the letter, he did not discuss the request for accommodations with plaintiff. Viola's initial reaction was that he "could not live with a person . . . working around equipment with those conditions." He reached this conclusion despite the fact that the accommodations granted plaintiff by Ameo were apparently satisfactory to both sides. Thereafter, there was correspondence between Dr. Bruno and Dr. Magariello in which Dr. Bruno insisted he would not modify his recommendation for reasonable accommodation under the ADA. Dr. Magariello re-examined plaintiff in January 2003 and found that plaintiff could work a full day with the restrictions and reasonable accommodations in place, although plaintiff indicated that he could only work until the point he became fatigued. Dr. Magariello told plaintiff and Dr. Bruno that Viola believed he could no longer accommodate plaintiff, and two days later Dr. Magariello told Dr. Bruno that plaintiff presented safety issues.

Thereafter, Dr. Magariello agreed to arrange for a functional capacity evaluation (FCE) to determine plaintiff's medical restrictions and his ability to perform the essential functions of his job. Alfred DePalma, a physical therapist, conducted the FCE on February 6, 2003. His report concluded that plaintiff's abilities matched the job description and "met or exceeded all critical demands providing for a safe job match." He opined that if plaintiff were allowed to work with "reasonable accommodations as recommended" by Dr. Bruno, he should be able to perform his "critical job demands in a safe manner." After receiving the FCE report, Dr. Magariello emailed Viola at 11:00 a.m. on February 13, 2003 as follows:

Based on my evaluation of the above captioned employee and my review of the medical information provided, it is my opinion that effective 2/11/03, this employee's medical condition permanently precludes this employee from activities such as:

limit walking, crawling, stooping, bending and climbing stairs, ladders and stacks; limit overtime and shifts longer than 8 hours; move oil barrels only with forklift; use restroom within 250 feet of work area, transport available to drive to units, two 15 minute breaks and 30 minutes lunch, increase operating, troubleshooting, checking instrumentation and units while sitting. This employee is permanently unable to perform any further work for an Enterprise Company unless work can be found that does not require activity associated with the permanent restrictions or limitations listed herein. If there is no available work at your location with these restrictions, please instruct the Staffing Manager to conduct a job search throughout Enterprise.

After receiving the email, Viola decided he could not accommodate plaintiff as a CTO of the Essex and Kearney facilities due to the size and logistics of the plants and safety concerns if plaintiff remained a CTO at those facilities with the restrictions in place.

Three hours after his first email, Dr. Magariello issued an "updated corrected email" which stated:

Based on my evaluation of the above captioned employee and my review of the medical information provided, it is my opinion that effective 2/11/03, this employee's medical condition permanently precludes this employee from activities such as: repetitive walking, crawling, stooping, bending and climbing stairs, ladders and stacks; overtime and shifts longer than 8 hours; in addition he is to move oil barrels only with forklift; have access to a restroom within 250 feet of his work area, have transport available to drive to units, provide two 15 minute breaks and 30 minutes lunch, and precludes operating, troubleshooting, checking instrumentation and units while standing. This employee is permanently unable to perform any further work for an Enterprise Company unless work can be found that does not require activity associated with the permanent restrictions or limitations listed herein. If there is no available work at your location with these restrictions, please instruct the Staffing Manager to conduct a job search throughout Enterprise.

When asked during discovery the reason for his "updated corrected email," Dr. Magariello said that the revised email "better reflects . . . Dr. Bruno's recommendations." However, he gave a different reason in his certification in support of summary judgment.

Based on my examination of Mr. Thorson and review of all of the medical information provided to date, including the FCE, I concluded that Mr. Thorson's medical condition was permanent and that it would preclude him from such activities as repetitive walking, crawling, stooping, bending; climbing stairs, ladders and stacks; overtime and shifts longer than eight hours; moving oil drums except with a forklift; and operating, troubleshooting and checking instrumentation and units while standing.

Although Dr. Magariello states his opinion was based on review of the FCE report, the record indicates his conclusion was contrary to the report. Moreover, in his deposition Dr. Magariello stated that he did not consider the FCE report.

Q. Do you recall whether you considered this functional capacity evaluation in making any determinations or recommendations as to Mr. Thorson's work restrictions?

A. No.

Q. You did not consider this information?

A. No.

Q. Why was that?

A. I didn't order it.

Viola had plaintiff placed on involuntary medical leave effective February 14, 2003. All medical, pension and 401(k) benefits were continued, and he lost no seniority or accrued time toward retirement. He was also fully paid, although he did not receive what he would have earned in forced overtime if he had been on the job.

Plaintiff contends that Viola never reached out to him to discuss how he might be reasonably accommodated at the Essex Station and failed to attend a scheduled meeting with plaintiff and representatives from plaintiff's union. While Viola contends that he directed Human Resources to find plaintiff a suitable position within the company, plaintiff asserts that Viola declined to extend plaintiff an offer to work at a "figures desk job" recommended by plaintiff's union.

Shortly after being placed on medical leave, plaintiff filed a complaint with the New Jersey Division of Civil Rights charging discrimination. On July 31, 2003, he was informed that his last day to receive disability benefits would be November 12, 2003, after which his employment would be discontinued. PSEG confirmed his termination date on September 3, 2003, and requested that plaintiff select one of its retirement plans. After the union also filed a grievance on his behalf, PSEG sent a letter to the president of the union on September 17, 2003 stating that, "It has been communicated to Mr. Thorson and his doctor that if he provides clarifying medical certification that his limits are not as restrictive as currently applied, the Company would review his case." However, the letter also stated that after plaintiff's disability ran out on November 12, 2003, his employment would be discontinued.

Plaintiff continued to maintain his efforts to retain his job with PSEG. At his request, Dr. Gerald Zimmerman sent a letter to Dr. Magariello on October 16, 2003 stating that although plaintiff's PPS disability was permanent, he could still return to work if the accommodations recommended by Dr. Bruno were continued. However, on November 13, 2003, Viola sent plaintiff a letter explaining that his disability benefits expired, and his employment would continue on a no-pay status with full medical benefits pending mediation of plaintiff's EEOC claim.

On November 20, 2003, a week after his benefits ran out, Viola informed plaintiff of the availability of a CTO vacancy at the Edison Generating Station which required much less walking, heavy manual labor and overtime demands than the Essex and Kearney facilities. Viola instructed plaintiff to report to Dr. Magariello for a return-to-work examination. Following the examination, Dr. Magariello cleared plaintiff for work at the Edison facility and reported the limits set forth in Dr. Zimmerman's October 14, 2003 letter to plaintiff's supervisors in Edison.

Plaintiff accepted the Edison assignment although it was thirty miles further from his home, and he resumed work in November 2003. According to plaintiff he lost two weeks full pay and $10,000 in forced overtime pay. He filed his complaint against PSEG on December 3, 2003, alleging violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and filed an amended complaint on January 16, 2004. Following discovery, defendant PSEG filed its motion for summary judgment. After argument, the motion judge granted summary judgment to PSEG and dismissed plaintiff's complaint, holding that plaintiff had not provided sufficient proof to sustain his claims of disability discrimination because he did not establish the unreasonableness of Dr. Magariello's medical opinion that plaintiff's disability made it unsafe for him to do his job. She further found plaintiff did not present proof to satisfy a prima facie case of retaliation in the form of a below-standard performance appraisal and later transfer to the Edison plant after he filed his complaint with the Division of Civil Rights. Specifically, the judge found that plaintiff had never been fired, that PSEG made every effort to find another job when he returned from his unrelated disability, that plaintiff never lost a day's pay and had failed to prove he had lost overtime pay, and that the transfer to Edison was a reasonable accommodation because the LAD does not require the exact accommodation requested by plaintiff. Thus, she concluded that the inferences in the case could not support a prima facie case of discrimination because the transfer to Edison was a good faith accommodation.

It is undisputed that PSEG knew of plaintiff's PPS, that plaintiff requested an accommodation for his disability in November of 2002 as a result of his negative performance appraisal, and that the accommodations made in 2001 were effective to address his disability concerns. In dispute is whether PSEG made good faith efforts in 2003 to seek reasonable accommodations for his disability. We find that there are genuine issues of material fact that cannot be resolved by summary judgment.

Our standard of review of an order granting summary judgment is the same as that applied by the judge considering the summary judgment motion. Prudential Prop. & Cas.

Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.),

certif. denied, 154 N.J. 608 (1998). That is, the adverse party must make a sufficient showing based on evidence submitted and legitimate inferences from the evidence that the case should be submitted to the factfinder. Brill v. Guardian Life Ins. Co. of

America, 142 N.J. 520, 540 (1995); R. 4:46-2. The adverse party is entitled to have the facts alleged and reasonable inferences viewed in the most favorable light. Rankin v. Sowinski, 119 N.J. Super. 393, 399-400 (App. Div. 1972).

The LAD does not specifically address reasonable accommodation, but our courts have uniformly held that an employer is required to reasonably accommodate an employee's handicap. See, e.g., Raspa v. Office of Sheriff, 191 N.J. 323, 335-37 (2007); Viscik v. Fowler Equipment Co., 173 N.J. 1, 11 (2002); Bosshard v. Hackensack University Medical Center, 345 N.J. Super. 78, 91, (App. Div. 2001). The employer must initiate and participate in an informal interactive process with the employee to identify potential reasonable accommodations that could be adopted to overcome the employee's precise limitations resulting from the disability and still permit the employee to perform the necessary work. Taylor v. Phoenixville School District, 184 F.3d 296, 319 (3d Cir. 1999). If a handicapped employee requests assistance, the employer must make a reasonable effort to determine the appropriate accommodation. Id. at 306.

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 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. Id. at 319-20. Where there is a genuine dispute whether an employer interacted with the employee in good faith, granting summary judgment is inappropriate. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944 (8th Cir. S.D. 1999). Additionally, summary judgment should not ordinarily be granted when the action entails a determination of a state of mind such as bad faith. Auto Lender v. Gentilini Ford, 181 N.J. 245, 271-72 (2004); Wilson v. Amerada ideas Corp., 168 N.J. 256, 253-54 (2004).

There is no dispute that plaintiff has met the first two prongs of the Taylor test. PSEG was aware of plaintiff's disability and his request for assistance in dealing with his disability at the workplace. Plaintiff does not dispute that PSEG entered with good faith into an informal, interactive process with plaintiff in 2001 after Dr. Bruno first notified PSEG that plaintiff was suffering from PPS. Plaintiff and his then supervisor Ameo came to a resolution enabling plaintiff to continue to fulfill the essential functions of his job as a CTO with reasonable accommodations. However, there is a dispute whether the interactive process was abrogated by PSEG in 2003.

Plaintiff contends that he was fulfilling the essential functions of his position with the reasonable accommodations provided to him by Ameo. There is a genuine issue of fact to be properly adjudicated by the factfinder as to whether plaintiff could perform his employment with reasonable accommodation, Raspa, supra, 191 N.J. at 337-41, and if his supervisor Viola continued to interact with plaintiff in good faith in light of plaintiff's statement that Viola declined to speak with him about the matter even after plaintiff's union requested him to do so.

Furthermore, plaintiff presents a triable issue as to Dr. Magariello's alleged conflicting opinions. After his examination of plaintiff in January 2003, Dr. Magariello said plaintiff could fulfill his job requirements, but in his February 13 opinion he declares that plaintiff could not do any CTO work for PSEG. Moreover, his letter opinion is also contrary to the opinions of Drs. Bruno and Zimmerman, as well as the independent FCE conducted by DePalma, that plaintiff could fulfill the essential duties of his job.

Furthermore, a factfinder could draw the inference that by summarily placing plaintiff on involuntary leave, Viola intended to terminate his employment as a CTO, especially given Viola's reluctance to discuss the matter with plaintiff and his initial assertion made upon first learning of plaintiff's PPS condition that he could not have him as a CTO in the facility. Finally, an inference could also be drawn that PSEG did not act in good faith in 2003 after plaintiff had fulfilled the essential functions of his position from 2001 until 2003 with accommodations recommended by his doctor and provided to him by Ameo. In this regard, we recognize the position of defendant that Dr. Magariello and Viola sought unsuccessfully to obtain more detailed information from plaintiff's physicians regarding plaintiff's precise limitations, and therefore, acted in good faith by placing plaintiff on medical leave. This again is a material factual issue for the factfinder.

In granting summary judgment, the motion judge found that plaintiff was not fired and "never lost a day's pay," leading her to conclude as a matter of law that there was no adverse employment action by PSEG. But plaintiff certified to the contrary that in fact he lost approximately $10,000 in forced overtime as well as two weeks pay in the period between his paid leave period running out and commencing work at the Edison Station. The judge discounted plaintiff's claim of loss of forced overtime income because plaintiff testified during his deposition that he did not want to work overtime shifts. However, the court did not consider the evidence that regardless of his preference, he was required to work forced overtime under the collective bargaining agreement.

The motion judge held that the transfer of plaintiff to the Edison Station was not an adverse employment action. The term "adverse employment action" is broadly defined by the ADA to include not only readily quantifiable losses such as loss or reduction of pay or monetary benefits, but other consequences adverse to the employee. Silk v. City of Chicago, 194 F.3d 788, 799 (7th Cir. 1999). An adverse action may be established by as little as a temporary delay of one week's pay. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223-24 (2d Cir. 2001).

In this case, the transfer of plaintiff to the Edison Station can be considered an adverse employment action, for courts have held that transferring an employee to a different location can constitute an adverse employment action when the employee suffers a negative consequence such as a much longer commute. See Spring v. Sheboygan Area School District, 865 F.2d 883, 886 (7th Cir. 1989). Similarly, the loss of two weeks wages, the opportunity for additional wages from forced overtime, and placement on unwanted leave present factual issues to be resolved by the proper factfinder.

Finally, we hold that the issues of retaliation and punitive damages are also for the factfinder. An inference can be drawn from the summary placement of plaintiff by Viola on involuntary medical leave as a pretextual action taken to terminate plaintiff's employment. See Erickson v. Marsh & McLennen, 117 N.J. 539, 553 (1990); Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995); see also Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 190 (3d Cir. 2003).

Reversed and remanded for trial.

 

The record does not disclose whether this administrative complaint was determined by the agency.

Plaintiff certified that his commutation time increased by thirty-eight minutes each way. This transfer could only have exacerbated the overtime issue because it reduced his availability for overtime by over seven hours per week and well over 300 hours per year.

This finding is not supported by the record because plaintiff certified on December 26, 2005, that his 2003 W-2 wages were $10,000 to $12,000 less than his W-2 wages between 1998 and 2001 and $15,900 less than his 2004 W-2 wages and a result of not getting overtime pay while on involuntary leave in 2003.

(continued)

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A-3607-05T1

January 9, 2009