STEVEN CATTUNA v. SARA LEE CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0603-09T20603-09T2

STEVEN CATTUNA,

Plaintiff-Appellant,

v.

SARA LEE CORPORATION, CELIA

GRIFFITH, individually and as

Regional Human Resources Manager

of Sara Lee Corporation, and

JESSICA THIEBAUD, individually

and as Solution Sales Manager

NY/NJ of Sara Lee Corporation,

Defendants-Respondents.

__________________________________

 

Submitted June 2, 2010 - Decided

Before Judges Skillman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5367-07.

Kaiser, Saurborn & Mair, P.C., attorneys for appellant (Henry L. Saurborn, Jr., on the brief).

Edwards, Angell, Palmer & Dodge, L.L.P., attorneys for respondents (Paulette Brown, on the brief).

PER CURIAM

In this disability discrimination case, plaintiff Steven Cattuna appeals from the August 28, 2009 Law Division order granting defendants' motion for summary judgment dismissing the complaint with prejudice. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff, a New Jersey resident, began his employment as a salesman with Wechsler Coffee in 1988. During his employment, his sales territory included New York, New Jersey, Long Island and Rockland County, New York. He began his employment with defendant Sara Lee Corporation (Sara Lee) in June 1999, when Sara Lee purchased Wechsler Coffee. Plaintiff became a Product Specialist, and his sale territory was expanded to include Cleveland, New Hampshire and Philadelphia. To reach these locations, plaintiff traveled by airplane, train or automobile, sometimes traveling with other employees.

Plaintiff held various other sales positions with Sara Lee from 1999 to 2006, which also required him to travel. In July 2006, plaintiff became a Solution Sales Representative with a sales territory in lower Manhattan. His responsibilities included servicing existing customers and expanding Sara Lee's business in the lower Manhattan area through existing customers and new customers, with quotas for each. The position required plaintiff to travel from New Jersey to various locations in lower Manhattan on a daily basis during the work week.

In August 2006, plaintiff began suffering panic attacks when he traveled or was "stuck" in traffic in tunnels or on bridges, took public transportation, or was in airports, on an airplane, or in crowded places. These attacks occurred whether or not he was driving with someone but they were more intense when he traveled alone.

Plaintiff eventually sought medical treatment after the attacks became more frequent and worsened. In January 2007, his primary care physician initially diagnosed him with anxiety and depression, and prescribed anti-anxiety medication. Because plaintiff's "symptoms became too severe for him to continue working[,]" on January 17, 2007, plaintiff requested and received a leave of absence pursuant to the Family Medical Leave Act (FMLA). Plaintiff returned to work in late February 2007. In March 2007, David Brozyna, M.D., a psychiatrist, diagnosed plaintiff with agoraphobia, situational panic attacks and anxiety, and prescribed anti-anxiety medication.

In June 2007, plaintiff suffered an attack while stopped alone in traffic in the Lincoln Tunnel while traveling to lower Manhattan. He became "too ill to work[,]" resulting in a second leave of absence. On July 31, 2007, Dr. Brozyna signed a disability certificate (the first disability certificate) confirming that plaintiff was "totally incapacitated" from June 27 to August 1, 2007 and could return to work after August 1, 2007, with the following limitations:

[Plaintiff] has been diagnosed [with] agoraphobia and situational panic attacks related to situation or places from which escape may be difficult or embarrassing or in which help may not be available in the event of a situationally predisposed [p]anic [a]ttack. These [situations] include being in a crowd, traveling in tunnels or bridges or on public transportation. An [a]ccommodation is appropriate.

At this time, defendant Cecilia Griffith was Sara Lee's Regional Human Resources Manager, defendant Jessica Thiebaud was the Solutions Sales Manager/Key Account Manager and plaintiff's manager, and Jon Marzetta was the Eastern Zone Director and Thiebaud's supervisor. On July 31, 2007, plaintiff advised Griffith and Thiebaud that he intended to return to work on August 2, 2007, and wanted to meet with them "to discuss changing my work environment and/or duties and workload as suggested by my physician in order to accommodate my health needs." Thiebaud offered to meet with plaintiff on August 2 or 3, 2007. Griffith asked plaintiff to "[p]lease let me know what accommodations you are looking for." Plaintiff did not return to work on August 2, 2007. Instead, he sent Griffith the first disability certificate.

Plaintiff exhausted his medical leave as of August 6, 2007. On August 7, 2007, plaintiff met with Griffith. Based on plaintiff's medical restrictions, Griffith did not believe that he could travel to New York City on a daily basis in order to fulfill his job, or that it would be possible to accommodate him so as to allow him to do so.

Griffith and Thiebaud discussed whether any of the New Jersey sales territories could accommodate plaintiff's medical restrictions. At the time, there were three sales territories that contained regions of New Jersey, all of which were occupied by other employees. One sales territory comprised almost all of northern New Jersey and Staten Island, and one comprised parts of Bergen County and Rockland and Westchester Counties in New York. These territories did not meet plaintiff's medical restrictions because they required travel over bridges. The third territory comprised southern New Jersey. Griffith and Thiebaud determined that switching plaintiff and the employee who occupied this territory would be too burdensome for that employee, who lived in Toms River.

After conferring with Marzetta and Thiebaud, Griffith decided that plaintiff could not perform his job duties with or without an accommodation. Marzetta then decided that plaintiff's position had to be filled because it had been vacant for a long time, the sales territory was "not fulfilling its objectives[,]" and the company "need[ed] someone who is producing." Griffith then notified plaintiff that he had exhausted his FMLA benefits, and that Sara Lee "will commence a search to find a candidate to replace you." She also advised plaintiff that

Once you are able to return to work, please contact me. If your position has not been filled, you will be able to return to work in that capacity. If your position has not been filled you are eligible to apply for any open position for which you are qualified. If no position is available your employment will be terminated. When terminated, you will be able to apply for unemployment insurance benefits.

On August 13, 2007, Dr. Brozyna signed a Request for Medical Information for Reasonable Accommodation form, verifying that plaintiff had an impairment that limits a major life activity, which he described as "severe anxiety . . . situational panic attacks related to Agoraphobic situations [i.e.] alone in crowds, driving in heavy traffic, on bridges or tunnels[.]" The doctor concluded that plaintiff's disability rendered him "unable to travel to his job territory." (Emphasis added). Plaintiff submitted this form to Griffith on August 16, 2007.

On August 15, 2007, Sara Lee issued a personnel requisition to advertise for someone to fill plaintiff's position. On September 10, 2007, Sara Lee hired William Scannell for that position.

On September 13, 2007, Dr. Brozyna signed a disability certificate (the second disability certificate), which plaintiff submitted to Sara Lee, confirming that plaintiff was "totally incapacitated" from June 27, to September 16, 2007, and could return to work with the following limitations:

[Plaintiff] requires an accommodation under [the] American with Disabilities Act (ADA-905) where he will not be in situations requiring him to travel [through] tunnels, over bridges or use public transport[ation] because of panic attacks caused by his Agoraphobia. This [is] situationally predisposed by the nature of his disability. An accommodation is appropriate in this instance.

In October 2007, Griffith advised plaintiff that "[i]n order to assess your request for an accommodation, please provide details around the specific accommodation you are seeking." Plaintiff replied that "[d]espite your request, potential accommodations cannot be discussed in a vacuum[,]" and "unless and until you are able to provide me with a specific position, I cannot provide you with specific details around what accommodation I would need, if any." Griffith responded as follows:

Please note that my request to you . . . to provide information as to what accommodations you seek is my attempt to have an interactive discussion with you in compliance with the [ADA].

. . . .

In order to move forward to determine whether there are any positions you are able to perform, with [or] without accommodations, you must tell me which positions you are interested in pursuing and then whether you need any accommodations. Then we must review those accommodations in order to perform those jobs and determine whether we can accept them.

In our previous discussions, you mentioned that you are unable to travel over bridges or through tunnels. Your previous territory includes traveling into Manhattan via bridges and tunnels. Accordingly, to move you to another territory, if one were available, we would have to presumably reassign another [Solution Sales Representative] to travel to Manhattan from a farther location. We have determined that such a change would be burdensome.

Therefore, I am asking for your assistance and your cooperation in this interactive discussion to determine whether you have other suggestions or proposed accommodations.

Plaintiff did not reply. Instead, he filed a complaint on October 31, 2007, alleging a violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

For the first time at his deposition, plaintiff proposed two possible accommodations: (1) change his sales territory to New Jersey; or (2) assign a "route driver" to accompany him to and from his appointments in Manhattan. Plaintiff does not dispute that there was no available position in New Jersey, or that route drivers are on a strict delivery schedule, which does not conform to the variable appointment schedule of a Solutions Sales Representative.

Defendants filed a motion for summary judgment. In an oral opinion rendered August 28, 2009, the trial judge granted the motion concluding that plaintiff could not have performed the essential functions of his job with or without an accommodation, and failed to present evidence that could support a finding that Sara Lee's reason for his termination was pretextual. The judge noted that prior to his termination, plaintiff provided no information that his condition was temporary, and that his termination was based on his doctor's expert opinion that he was totally incapacitated and unable to travel to his job territory.

The judge found that plaintiff never proposed a reasonable accommodation request during his employment; the accommodations proposed at his deposition did not address his limitations, were not reasonable, and imposed an undue hardship on Sara Lee, who would be required to reassign another employee or route driver to accompany plaintiff, thus "paying two people for the same time and distance [traveled;]" and "there was no way to accommodate the panic attacks due to the agoraphobia and their resultant triggers . . . no matter where the territory was." This appeal followed.

On appeal, plaintiff contends that the judge erred in granting summary judgment because he made a prima facie showing of disability discrimination. He argues that he was able to perform his essential job duties with an accommodation; defendants' reason for filling his position was pretextual; and Sara Lee's failure to engage in the interactive process is prima facie evidence of disability discrimination. Plaintiff also contends that the judge improperly concluded that he bore the burden to offer possible accommodations during his employment, and erred in finding, without evidential proof, that an accommodation would create an undue hardship on Sara Lee.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). 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). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008).

The LAD prohibits employment discrimination based on a disability. N.J.S.A. 10:5-4.1. The burden of proving discrimination "remains with the employee at all times." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). In a reasonable accommodation case, a plaintiff must prove that: (1) he was handicapped or disabled within the meaning of the LAD; (2) he was qualified to perform the essential functions of the position of employment, with or without accommodation; and (3) he suffered an adverse employment action because of the handicap or disability. Victor v. State of New Jersey, 401 N.J. Super. 596, 614 (App. Div. 2008), certif. granted, 199 N.J. 542 (2009); Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App. Div. 2001). In this case, there is no dispute that plaintiff satisfied elements one and three. The focus, therefore, is on the second element.

The LAD prohibits the discriminatory discharge of an employee based on a disability unless the employer "'reasonably arrive[s] at'" the conclusion that the employee's disability "'reasonably precludes the performance of the particular employment.'" Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 367 (1988) (quoting N.J.S.A. 10:5-2.1 and 10:5-4.1); see also Raspa v. Office of Sheriff of Gloucester, 191 N.J. 323, 338 (2007); Potente v. County of Hudson, 187 N.J. 103, 110-11 (2006). The LAD "leave[s] the employer with the right to fire or not to hire employees who are unable to perform the job, 'whether because they are generally unqualified or because they have a handicap that in fact impedes job performance.'" Jansen, supra, 110 N.J. at 374 (quoting Andersen v. Exxon Co., 89 N.J. 483, 496 (1982)). Thus, an employer is not required to accommodate an employee who cannot perform his essential job functions even with an accommodation. Hennessey v. Winslow Twp., 368 N.J. Super. 443, 452 (App. Div. 2004), aff'd, 183 N.J. 593 (2005); Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super. 385, 397 (App. Div. 2002); see also Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 150 (3d Cir. 2004) (affirming summary judgment for employer because LAD does not require employer to accommodate employee who was "unable to perform any of the functions of his job."); Van de Pol v. Ceasars Hotel Casino, 979 F. Supp. 308, 313 (D.N.J. 1997) (granting summary judgment to employer because the LAD does not require employer to accommodate employee who "was not physically capable of safely performing any of his duties[.]").

Generally, an employer must initiate a good faith "interactive process" regarding accommodations before determining that the employee's disability reasonably precludes performance of his or her essential job functions. Tynan, supra, 351 N.J. Super. at 400. Employers can show such good faith attempt by "meet[ing] with the employee[,] . . . request[ing] information about the condition and what limitations the employee has, ask[ing] the employee what he or she specifically wants . . . and offer[ing] and discuss[ing] available alternatives when the request is too burdensome." Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999). Participation in the interactive process is not a one-way street. It "is the obligation of both parties," and the "employer cannot be faulted if after conferring with the employee to find possible accommodations, the employee then fails to supply information that the employer needs or does not answer the employer's request for more detailed proposals." Ibid.

Proof alone of the employer's failure to engage in the interactive process is insufficient to meet the employee's prima facie burden. Donahue v. Consol. Rail Corp., 224 F.3d 226, 234 (3d Cir. 2000); Victor, supra, 401 N.J. Super. at 614. The employee still has the burden to prove the basic essential elements of a discrimination case, and must show that reasonable accommodation for his or her disability was possible even where the employer acted wrongfully in failing to engage in the interactive process to find such an accommodation. Victor, supra, 401 N.J. Super. at 614. As part of that burden, the employee must prove that he was qualified to perform the job and that "the accommodation could have been reasonably achieved." Id. at 615; see also Potente, supra, 187 N.J. at 110. The employee is not required during his employment to state what specific accommodation he is seeking. Tynan, supra, 351 N.J. Super. at 399. However, after he files a complaint, he is required, as part of his burden of proof, to provide examples of what the employer could have done to accommodate his specific needs. Donahue, supra, 224 F.3d at 234. Where a plaintiff cannot demonstrate that a reasonable accommodation existed, the employer's lack of investigation is unimportant. Id. at 233; Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997).

Further, if an employee requests a transfer to another position, he has to prove that (1) there was a vacant, funded position available; (2) the position was at or below the level of his former job; and (3) he was qualified to perform the essential duties of this job with reasonable accommodation. Donahue, supra, 224 F.3d at 230; see also Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997). "An employer is not required to 'bump' another employee in order to reassign a disabled employee to that position." Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000). See also Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 257 (6th Cir. 2000); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999); Dalton v. Subari-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998).

We disagree with defendant that Sara Lee failed to engage sufficiently in the interactive process. Its representatives met with plaintiff, requested information about his condition and what limitations he had, asked him what he specifically wanted, and considered a possible transfer to another position. Plaintiff, on the other hand, never responded to Griffith's request for more detailed proposals.

Furthermore, even assuming that Sara Lee failed to sufficiently engage in the interactive process, plaintiff would not have been absolved of his burden to prove that he could perform his essential functions even with an accommodation. Plaintiff failed to meet this burden. There is no dispute that traveling to New York on a daily basis was an essential function of plaintiff's job. Prior to the time Sara Lee filled plaintiff's position, his doctor confirmed that he was "totally incapacitated," "unable to travel to his job territory," and could not travel at all over bridges, through tunnels, in traffic or crowded places, or on public transportation. Accordingly, plaintiff could not perform an essential job function even with the accommodations he proposed after his discharge.

Also, plaintiff failed to demonstrate that there were reasonable accommodations available and that his proposed accommodations were reasonable. There was no vacant sales position in New Jersey, as all three local sales territories were occupied by other employees, who Sara Lee was not required to "bump" in order to accommodate plaintiff. Although plaintiff presented evidence that other employees had occasionally accompanied him while traveling, he failed to demonstrate that it would have been reasonable to require Sara Lee to assign another employee to do so on a daily basis.

Finally, plaintiff failed to show that Sara Lee's reason for his discharge was pretextual. Plaintiff concedes that his sales territory was not meeting its sales goals and was losing business. Such poor performance was a legitimate, non-discriminatory reason for plaintiff's discharge.

 
Affirmed.

29 U.S.C.A. 2601-2654.

(continued)

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A-0603-09T2

August 27, 2010