WALTER HIRES v. CITY OF ATLANTIC CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0870-08T30870-08T3

WALTER HIRES,

Plaintiff-Appellant,

v.

CITY OF ATLANTIC CITY, CITY

OF ATLANTIC CITY POLICE

DEPARTMENT, DEPUTY CHIEF MICHAEL

ERSKINE,

Defendants-Respondents,

and

POLICE CHIEF ARTHUR SNELLBAKER,

Defendant.

______________________________________

 

Submitted December 15, 2009 - Decided

Before Judges Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2237-03.

Press & Taglialatella, L.L.C., attorneys for appellant (Richard L. Press, on the brief).

Jasinski, P.C., attorneys for respondents (Peter P. Perla, Jr., and Donna Lee Vitale, on the brief).

PER CURIAM

In this employment discrimination case, plaintiff Walter Hires appeals from the September 12, 2008 Law Division order denying his motion for reconsideration of the July 7, 2008 order granting defendants' summary judgment motion. We affirm.

In October 1992, plaintiff began his employment as a police officer with defendant City of Atlantic City Police Department (ACPD). From October 1994 to April 1999, plaintiff was assigned to the ACPD Forensic Unit. In April 1999, after requesting a transfer, plaintiff was assigned to the Atlantic County Major Crimes Unit (MCU). Plaintiff knew prior to the transfer that the MCU's forensic investigations were of greater intensity than the ACPD's Forensic Unit and that he would be on-call. Lieutenant Wellman and Sergeant DeShields of the Atlantic County Prosecutor's Office, and Sergeant Roff from the ACPD were plaintiff's direct supervisors after the transfer.

After working in the MCU for fifteen months, in July 2000, plaintiff informed Captain Robert Flipping of the ACPD that being on-call was affecting his health and family, and that he may want a transfer from the MCU. Plaintiff did not actually request a transfer or seek Capt. Flipping's assistance in obtaining a transfer.

There is no evidence that plaintiff told Capt. Flipping about any job-related stress or psychological issues. Also, only the Chief of Police could approve a transfer, which had to be made in writing on the appropriate form and submitted to the appropriate supervisor. Plaintiff did not submit a transfer form, and he never advised any of his direct supervisors that he wanted a transfer.

Sergeant James Scoppa, head of the Forensic Unit, was plaintiff's supervisor when plaintiff worked in that Unit. He was not plaintiff's supervisor or in plaintiff's direct chain of command in December 2000, when plaintiff told him that the on-call schedule and stress from working in the MCU was "tearing [him] and [his] family apart[,]" and that he was having "physical reactions," such as an ulcer, acid reflux and asthma attacks. Plaintiff also told Sgt. Scoppa that he wanted to transfer to the Booking and Detention Unit. Sgt. Scoppa offered to assist plaintiff with a transfer but it would be back to the Forensic Unit. Plaintiff declined because he "was thinking about giving up forensics for a while[,]" and he "needed a break from forensics."

In January 2001, plaintiff asked Sgt. Scoppa to speak to Deputy Chief Michael Erskine about transferring to the Booking and Detention Unit. Sgt. Scoppa met with Dep. Chief Erskine and told him that plaintiff had personal problems and wanted a transfer.

According to plaintiff, Sgt. Scoppa said that Dep. Chief Erskine was angered by the transfer request and not inclined to approve it. Plaintiff told Sgt. Scoppa that he would "have to use a doctor's note to get transferred," to which Sgt. Scoppa replied that if plaintiff did so, "they are going to make your life miserable, they're going to ruin your career,[.]" Sgt. Scoppa also said that plaintiff could transfer to the Booking and Detention Unit but it would have to be on a verbal basis without a doctor's note so that plaintiff could later return to forensics if he so chose. Plaintiff was not treating for or diagnosed as suffering from any mental or psychological condition at this time, and he did not indicate what the doctor's note would say.

In August 2001, plaintiff spoke to Capt. Flipping about transferring out of the MCU. Their discussion apparently centered on plaintiff's difficulty with the constant on-call schedule and the effect it had on his home life. The record does not indicate that plaintiff told Capt. Flipping the extent to which his MCU investigations were causing him stress and anxiety.

Dep. Chief Erskine eventually approved plaintiff's transfer from the MCU; however, he made it clear that plaintiff must go where manpower was needed and that there was no guarantee of a transfer to the Booking and Detention Unit.

On August 24, 2001, plaintiff began treating with Edward Black, M.D., a psychiatrist. Dr. Black did not issue any report at that time indicating that he diagnosed plaintiff as suffering from a mental or psychological disability. Also, there is no evidence that Dr. Black or plaintiff advised the ACPD or anyone at the ACPD that plaintiff was under psychiatric treatment or that he required a transfer.

On September 27, 2001, plaintiff became "psychiatrically disabled from a nervous breakdown brought on by job stress caused by, amongst other things, the gruesome nature of the work." Plaintiff was relieved of his service revolver due to concerns that he might hurt himself or his family.

On September 29, 2001, Gary M. Glass, M.D., a general and forensic psychiatrist, evaluated plaintiff on the ACPD's behalf and diagnosed him with adjustment disorder with anxiety and depression. The doctor concluded that plaintiff should not be working, required a brief medical leave, and should continue treating with Dr. Black. The doctor was "hopeful" and expected that plaintiff "should be able to return to full active duty in a period of three (3) to four (4) weeks." However, according to William H. Hankin, M.D., a psychiatrist who evaluated plaintiff in connection with his application for accidental disability retirement benefits, "[plaintiff's return to full active duty] did not happen, . . . because it was not possible." This was because after plaintiff's breakdown, every doctor who examined him, including his own doctors, confirmed that he was totally and permanently disabled, could no longer perform his job duties as a police officer, and there was no possibility that he could improve to a degree to perform his job duties.

Also, an evaluation by the Medical Review Board in connection with the application found plaintiff totally and permanently disabled with job-related post-traumatic stress disorder and not able to resume police work. A psychiatric evaluation done in connection with a workers' compensation claim plaintiff had filed also confirmed that he suffered from work-related post-traumatic stress disorder and could not to continue his employment as a police officer.

On October 20, 2003, defendant City of Atlantic City (City) confirmed a settlement of plaintiff's workers' compensation claim. The City also advised plaintiff that although he had applied for a disability pension, he should contact his supervisor if he was interested in returning to work, "although not in the same work assignment[,]" and that he should contact defendant Police Chief Arthur Snellbaker (Chief Snellbaker) or Capt. Flipping, "or some other superior officer to determine if there are any positions vacant that he can be assigned to." Plaintiff never responded. Instead, he retired, effective March 1, 2003. Prior thereto, he had remained employed by the City and received yearly accrued vacation time, sick time, benefits and a longevity increase in 2002.

On August 15, 2003, plaintiff filed a complaint, raising claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, the New Jersey Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -142, and the federal Family Medical Leave Act (FMLA), 29 U.S.C.A. 2601-2654. Plaintiff alleged that defendants violated the LAD and FMLA by retaliating against him for pursuing a family medical leave, threatening retaliation for seeking a reasonable accommodation in the form of a transfer, threatening him if he used medical documentation to support a medical leave or a request for a transfer.

Defendants removed the matter to the United States District Court for the District of New Jersey, and filed a motion to dismiss. The court granted the motion as to plaintiff's WCA claims and his FMLA retaliation claim but permitted plaintiff to amend the FMLA retaliation claim.

Plaintiff then filed an amended complaint, amending his FMLA retaliation claim. Defendants filed a summary judgment motion to dismiss the FMLA claims, which the federal district court granted. The court remanded plaintiff's LAD claim to the New Jersey Superior Court. Prior thereto, in December 2004, the City adopted a policy to deny workers' compensation benefits for stress claims and to leave employees to their "proofs as to whether or not their stress related claim is compensable." Plaintiff became aware of this policy during discovery in this case. The ACPD also had a policy of not permitting any type of limited or light duty for police officers.

Defendants filed a summary judgment motion. Prior to making his factual findings, the judge emphasized that "I am construing these facts in the light most favorable to the party opposing the motion, namely the plaintiff." In granting the motion, the judge found that plaintiff could not establish a prima facie case of handicap discrimination because there was no evidence that plaintiff was diagnosed as suffering from a psychological disability prior to September 27, 2001, and because it is undisputed that after September 27, 2001, he was permanently disabled and could not return to work and perform the functions of his job even with an accommodation.

The judge also found that there was no evidence of any retaliation against plaintiff or threats about obtaining medical treatment or medical documentation for a transfer or medical leave. The judge also rejected plaintiff's claim that the City's policy to deny workers' compensation benefits for stress claims proved his failure to accommodate and retaliation claims. The judge memorialized his decision in an order entered July 7, 2008.

Plaintiff filed a motion for reconsideration, primarily arguing that the judge failed to properly consider his claim that after September 27, 2001, the City failed to engage in an interactive process to see if an accommodation could be made. The judge rejected this argument, emphasizing that the undisputed evidence confirmed that plaintiff was incapable of returning to work and performing his job duties, and that he never asked to return to work. The judge memorialized his decision in an order entered September 12, 2008. This appeal followed.

On appeal, plaintiff contends that the trial judge (1) applied the wrong standard governing summary judgment; (2) erred by failing to find that the City's policy to deny workers' compensation benefits for stress claims constituted a per se violation of the LAD; and (3) erred by failing to find that defendants interfered by threats and intimidation with his obtaining medical proof to substantiate his handicap discrimination claim. These contentions lack merit.

As a threshold matter, plaintiff's notice of appeal states that he only appeals from the September 12, 2008 order denying his motion for reconsideration. Generally, this would preclude our review of his challenge to the July 7, 2008 order granting summary judgment. W.H. Indus., Inc. v. Fundicao Balancing, Ltd., 397 N.J. Super. 455, 458 (App. Div. 2008). However, because defendants have not objected to our review of the grant of summary judgment, we will address it. Id. at 459.

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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). 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 on the basis of a disability "unless the nature and extent of the disability reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1; see also Potente v. County of Hudson, 187 N.J. 103, 110 (2006). To establish a prima facie case of handicap discrimination, the plaintiff must show that: (1) he or she was handicapped or disabled within the meaning of the LAD; (2) he or she was qualified to perform the essential functions of the position of employment, with or without accommodation; (3) he or she suffered an adverse employment action because of the handicap or disability; and (4) the employer sought another to perform the same work after plaintiff had been removed from the position. Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005); Maher v. N.J. Transit Rail Operations, 125 N.J. 455, 480-81 (1991). In a reasonable accommodation case, the first three elements satisfy the plaintiff's initial burden of proof. Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App. Div. 2001).

Where the plaintiff alleges a failure to accommodate a disability, he or she must first prove a qualifying handicap under the LAD. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 593-94 (1988); Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super. 385, 398-99 (App. Div. 2002). "Pursuant to N.J.S.A. 10:5-5(q), there are two specific categories of handicap: physical and non-physical. The physical and non-physical clauses of the statute are distinct from each other and provide separate ways of proving handicap." Viscik v. Fowler Equip. Co., 173 N.J. 1, 15 (2002).

To meet the non-physical standard, a plaintiff must prove that he or she is suffering (1) from any mental, psychological or developmental disability (2) resulting from an anatomical, psychological, physiological or neurological condition that either (a) prevents the normal exercise of any bodily or mental functions or (b) is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.

[Id. at 16.]

Expert testimony is required where the existence of a mental or psychological disability is not readily apparent. Ibid. After establishing the existence of a mental or psychological disability, the plaintiff must then prove that he or she was able to perform the essential functions of his or her job with reasonable accommodation. Potente, supra, 187 N.J. at 110-111 (citing N.J.A.C. 13:13-2.8(a)).

Upon the employee's request for a reasonable accommodation, the employer has a duty to engage in an informal interactive process to identify potential reasonable accommodations that would allow the disabled employee to perform the job. Tynan, supra, 351 N.J. Super. at 400. The establish this duty, the employee must show that (1) the employee was disabled; (2) the employer knew about the disability; (3) the employee requested accommodations or assistance for the disability; (4) the employer did not make a good faith effort to assist the employee in seeking accommodations by engaging in the interactive process; (5) the employee could have been reasonably accommodated but for the employer's lack of good faith in failing to engage in the interactive process; and (6) the employee was terminated. Ibid.; Victor v. State of New Jersey, 401 N.J. Super. 596, 624-15 (App. Div. 2008). 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. Consolidated Rail Corp., 224 F.3d 226, 234 (3d Cir. 2000).

An employer is not obligated to engage in an interactive process and to accommodate a disabled employee where the employee's "'disability reasonably precludes the performance of the particular employment.'" Raspa v. Office of Sheriff of Gloucester, 191 N.J. 323, 338 (2007) (quoting N.J.S.A. 10:5-4). Where such permanent disability exists, the employer is not even required to offer a temporary accommodation, such as light duty. Id. at 327. An employer cannot be found liable for discrimination if the employee is permanently disabled and cannot perform the job. Id. at 336.

Here, there is no medical evidence that plaintiff suffered from a mental or psychological disability prior to September 27, 2001. Although plaintiff proved that he suffered from a mental or psychological disability after September 27, 2001, he never requested an accommodation or assistance for his disability or asked to return to work after that date, he was permanently and totally disabled, and he could not perform any of his job duties even with reasonable accommodation. There also is no evidence from which a reasonable jury could conclude that anyone at any time threatened plaintiff or interfered with his obtaining medical evidence to establish a disability. Accordingly, the trial judge properly granted summary judgment under the appropriate standard.

Plaintiff's contention that the City's policy to deny workers' compensation benefits for stress claims is a per se violation of the LAD lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). The City never opposed plaintiff's workers' compensation claim, and plaintiff received workers' compensation benefits.

 
Affirmed.

Plaintiff was eventually awarded ordinary, not accidental, disability benefits.

The complaint was dismissed with prejudice as to Chief Snellbaker; however, the record does not reveal why or when that dismissal occurred.

(continued)

(continued)

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A-0870-08T3

June 1, 2010