CAROLYN VERHOORN v. CARDINAL HEALTH 110 INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CAROLYN VERHOORN,

Plaintiff-Appellant,

v.

CARDINAL HEALTH 110, INC.,

DAVID BARR AND JOEL DARLAND,1

Defendants-Respondents.

November 21, 2013

Before Judges Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4881-10.

Daniel B. Zonies argued the cause for appellant.

Larry J. Obhof, Jr. (Baker & Hostetler, LLP) of the Ohio and Illinois bar, admitted pro hac vice, argued the cause for respondents (Littler Mendelson, PC, and Mr. Obhof, attorneys; Todd H. Lebowitz (Baker & Hostetler, LLP) of the Ohio bar, admitted pro hac vice, Mr. Obhof and Eric A. Savage, on the brief).

PER CURIAM

Plaintiff Carolyn Verhoorn appeals the dismissal of her claim against defendants for violation of both the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirm.

I.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, defendants' 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, worked as a warehouse associate for Cardinal Health 101, Inc. (Cardinal Health) from November 2002 until March 2010, when her employment was terminated after she failed to meet her production quota for thirteen consecutive weeks.

Cardinal Health operates a pharmaceutical products distribution business. The company receives bulk shipments of pharmaceuticals and over-the-counter (OTC) products from manufacturers, stores them in large warehouses, and repackages them in smaller quantities for use in hospitals and medical offices, or resale in pharmacies. The products are stacked on shelves and retrieved by warehouse associates to fill customer orders.

Before December 2009, warehouse associates had specialized roles. Pickers were responsible for retrieving products from shelves and placing them in batch carts; quality control checkers were responsible for checking the picked orders to ensure they were filled correctly. Plaintiff worked as a quality control checker until December 2009. At that time, Cardinal Health instituted a new system called "Own Your Own Batch Cart," which eliminated quality control checkers as a separate position; instead, all warehouse associates were required to pick the products needed to fill their own batch carts and then quality check their own work.

When plaintiff started working in the OTC section of the warehouse in December 2009, all associates were required to pick 150 lines per hour. In her first week, plaintiff averaged only 100 lines per hour. Plaintiff indicated she had trouble picking items from the top shelves due to her height (four feet and ten inches). She claimed that other employees had similar problems retrieving products from the top shelf but many of them climbed on the lower shelves to reach the top shelf, effectively using the lower shelves as a ladder. Plaintiff explained that she could not climb on the shelves because she had two artificial hips; she further claimed that her supervisors, defendants Joel Darland and David Barr, knew of her hip replacement surgery.

Plaintiff testified at deposition that another supervisor, Tyrese Weston, encouraged her and provided her with coaching, including tips to improve her speed and strategies for picking products and navigating through the aisles. To assist warehouse associates in reaching the top shelf, supervisors provided step stools and metal grabber sticks with a hook on the end. Nevertheless, plaintiff consistently failed to meet the production quota of 150 lines per hour. For the thirteen-week period before her termination, plaintiff averaged less than 113 lines per hour. On March 12, 2010, Cardinal Health terminated plaintiff for failing to meet production quotas.

Plaintiff then filed suit, asserting two causes of action. Count One asserted a failure to accommodate disabilities under New Jersey's LAD. Count Two alleged wrongful termination in violation of CEPA.

II.

On appeal, plaintiff contends that the judge erred in granting summary judgment because she made a prima facie showing of disability discrimination. She argues that she was able to perform her essential job duties with an accommodation and that she was not required to make an affirmative verbal objection to shelf climbing. She further claims that she made a prima facie showing of a CEPA violation relating to her refusal to climb shelves.

We review a grant of summary judgment under the same standard as the trial judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must decide whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is '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) (internal quotation marks omitted). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

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 County 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 attempt to accommodate an employee who cannot perform his or her 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).

To establish a prima facie case of wrongful discharge based on a violation of public policy under CEPA, a plaintiff must show the following:

(1) he or she reasonably believed that his or her employer's conduct was violating . . . a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]

N.J.S.A. 34:19-3 defines the class of employee actions protected by CEPA, stating in relevant part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or

. . . .

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care; [or]

. . . .

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

Defendants provided a fully-supported seventy-eight paragraph statement of undisputed facts along with their motion for summary judgment. Plaintiff declined to challenge any of these alleged facts; thus, they were all deemed admitted. R. 4:46-2(b).

Regarding her LAD claim, plaintiff admitted at her deposition that she never requested any accommodation for any disability. Plaintiff also testified that there was no accommodation possible that would have enabled her to meet the company s production standards.

Regarding her CEPA claim, plaintiff testified that the basis for this claim was that she told her co-worker team leader (whom plaintiff testified was not a supervisor) that she thought the meal breaks should have been longer or more frequent. When plaintiff was specifically asked whether there was any other basis for her CEPA claim, plaintiff testified, "no, long breaks without eating."

Plaintiff's brief in opposition was three pages long and attached a single page from plaintiff's deposition. The brief abandoned the only basis for a CEPA claim that plaintiff asserted at her deposition ("long breaks without eating"). Instead, plaintiff claimed for the first time, that her CEPA claim was based on an assertion that short people could not meet production quotas without climbing on the warehouse shelves. However, a party cannot contradict his or her own deposition testimony in an attempt to defeat summary judgment. See Shelcusky v. Garjulio, 172 N.J. 185, 201 (2002). Therefore, we perceive no error as plaintiff failed to provide any reason for permitting her to disavow her deposition testimony.

In granting defendants' motion, the trial judge stated

There is no evidence anywhere that anything was complained (about) to . . . anybody about a condition that would give rise to a CEPA claim.

. . . .

. . . the only condition that could have given rise to [a LAD claim] was never asserted, no accommodation was requested[.]

. . . there [is] no evidence to dispute the fact that . . . failure to meet the quota was the reason for the firing. In fact, there [is] one other person who was . . . fired for failure to meet the quota, and frankly the plaintiff admits that, and plaintiff's counsel admits that [is] the reason for the firing.

. . . .

Under the circumstances, there (being) no factual dispute, there not being anything that could ever get to a jury to determine, I [am] going to grant the motion for summary judgment.

Plaintiff then filed a motion for reconsideration and attempted to present arguments and evidence not provided in opposition to the initial motion, including an additional 168 pages of her deposition. On reconsideration, plaintiff argued for the first time, and in contrast to her deposition testimony, that she had complained to supervisors, and contended that co-workers designated as "team leaders" should be considered supervisors. Plaintiff also argued, for the first time, that she was not required to complain to supervisors in order to prove a CEPA claim because her refusal to engage in the alleged "unlawful activity" was sufficient.

The trial court rejected plaintiff's belated attempt to create a claim as the record simply failed to support it. As the judge noted,

[T]here is nothing that is before me now that changes any of the facts or conclusions and shows me evidence that any of the facts relied upon (on the) motion for summary judgment were either incorrect or I did not see them or recognize them.

. . . .

There [is] no dispute that she was fired for not making quota. . . .

The contention is that because she refused to climb, and she refused to climb because of her hips, that she couldn't make quota because of that, and somehow that [qualifies] her [as a] conscientious employee. . . . [I]t misses the requirement that she know or had reason to believe at the time that it was illegal activity, number one. Number two, that she complained to somebody about an alleged illegal activity, or that she was fired because of that. She specifically says otherwise, she could [not] make quota.

We conclude that summary judgment was properly granted on plaintiff's LAD and CEPA claims. Plaintiff failed to present prima facie evidence that defendants failed to reasonably accommodate her claimed disability. Plaintiff never requested accommodation for any medical condition; additionally, the record contains no evidence of any accommodation that would have enabled plaintiff to meet her production quota.

Further, plaintiff did not identify, either to the trial court or to this court, any law, rule or regulation promulgated pursuant to law, or clear mandate of public policy concerning the public health, safety or welfare, that defendants violated. Additionally, plaintiff has neither demonstrated a causal connection between her concerns regarding shelf climbing and the adverse employment action, nor established that her termination was pretextual. The trial judge, viewing the evidence in the light most favorable to plaintiff, correctly granted summary judgment to defendants.

Reconsideration is a matter left to a trial court's sound discretion, Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008), appropriate only when a litigant demonstrates "1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Reconsideration is not designed to "serve as a vehicle to introduce new evidence in order to cure an inadequacy in the motion record." Asterbadi, supra, 398 N.J. Super. at 310. See also Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 463 (App. Div.), certif. denied, 174 N.J. 544 (2002).

Here, the entire transcript of plaintiff's deposition, which plaintiff only submitted for her reconsideration motion, was in plaintiff's possession at the time the original summary judgment motion was considered. Plaintiff inadequately explains why she failed to include the entire transcript in opposition to defendants' motion. Nevertheless, the additional documentation does not cure the defects in plaintiff's LDA and CEPA claims. Plaintiff's deposition testimony confirms that she never requested any accommodation for her claimed disability and fails to identify any reasonable accommodation that could have been provided. The record lacks any evidence that plaintiff engaged in a protected activity within the scope of the statute. We find no abuse in the motion judge's exercise of his reasoned discretion and discern no basis for disturbing the judge's decision to deny plaintiff's motion for reconsideration.

1 Incorrectly pleaded as Joel Durand.