FOSTER v. NATIONAL GYPSUM SERVICES COMPANY et al, No. 1:2015cv01126 - Document 24 (D.N.J. 2016)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 8/11/16. (js)
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FOSTER v. NATIONAL GYPSUM SERVICES COMPANY et al Doc. 24 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY PETER FOSTER, Plaintiff, v. : Hon. J oseph H. Rodriguez : Civil Action No. 15-1126 : OPINION NATIONAL GYPSUM SERVICES COMPANY, et al., : Defendants. : This m atter is before the Court on Defendant’s m otion for sum m ary judgm ent. The Court reviewed the subm issions of the parties and has decided the m otion on the papers pursuant to Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendant’s motion will be granted. Background Plaintiff Peter Foster began his em ploym ent with NGC, at its Burlington, New J ersey facility (“the Facility”) in 1987. (Pl. Dep. p. 12.) 1 Initially hired as a m echanic, Plaintiff was promoted to position of lead m echanic approximately nine years ago. (Pl. Dep. p. 12) Mechanics at the Plaintiff was never em ployed by National Gypsum Services Com pany, which is im properly named as a defendant in this m atter. Plaintiff was em ployed by New NGC, Inc., d/ b/ a National Gypsum Com pany. 1 1 Dockets.Justia.com Facility are represented by the United Steelworkers of America, Local Union 20 40 -3 (Pl. Dep. p. 12-13.) As lead m echanic, Plaintiff’s objectives were to “[i]nstall, m aintain and repair all plant m echanical, pneumatic, hydraulic and other system s relating to the m anufacturing process.” (Pl.’s J ob Description; Pl. Dep. p. 13; 54-55.) The functions essential to attaining Plaintiff’s job objectives include: “Install, maintain and report all m echanical equipm ent, read blueprints, and troubleshoot equipm ent and systems. Monitor and m aintain equipm ent to ensure efficient operations.” (Id.) The m inim um qualifications needed to perform these essential job functions include the ability to “[t]roubleshoot and repair all plant equipm ent,” “fabricate, repair and/ or assemble from sim ple or com plex drawings,” “lift and carry up to 10 0 lbs.,” and “operate a lift truck.” (Id.) Plaintiff’s job duties involved physical labor exclusively, and Plaintiff testified at his deposition that his position requires him to shovel, routinely lift up to 10 0 pounds, clim b ladders and operate power tools, electric tools, hand tools, pneum atic tools, and hydraulic tools. (Pl. Dep. p. 54-55; Peterson Dep. p. 17.) Plaintiff stressed that his position is a “heavy-duty occupation,” and requires him to, when using these tools, constantly apply a fair am ount of force to, for exam ple, industrial nuts and bolts. (Pl. Dep. p. 39, 55; Oxenford Decl. ¶ 9.) 2 On August 20 , 20 0 8, Plaintiff injured his back “lifting a piece of steel onto a saw,” and, on the same day, injured his right shoulder while digging a trench with a shovel. (Pl. Dep. p. 25.) Plaintiff presented to a physician on September 2, 20 0 8 and underwent an MRI. (Pl. Dep. p. 30 -33.) On October 28, 20 0 8, Plaintiff had arthroscopic surgery on his right shoulder to repair a labral tear. (20 0 8 Operative Report.) Following his surgery, Plaintiff took a leave of absence, and thereafter returned to work sometim e in 20 0 9. (Pl. Dep. p. 37.) In October 20 13, Plaintiff began another m edical leave of absence to undergo a second right shoulder surgery, this tim e performed by Mark Lazarus, M.D. (Pl. Dep. p. 47-48.) Prior to the surgery, Plaintiff indicated on an intake form in Dr. Lazarus’s office that his shoulder still allowed him to work full tim e at his regular job. (Lazarus Dep. p. 12-13.) Dr. Lazarus perform ed Plaintiff’s second shoulder surgery – a right shoulder hum eral hem iarthroplasty with glenoid ream ing arthroplasty (ream and run procedure) – on October 22, 20 13. (20 13 Operative Report.) A ream and run procedure involves the ball of the shoulder being replaced with a m etal ball, and the hard, arthritic portion of the socket being ream ed (grated) down to bleeding bone. (Lazarus Dep. p. 9-10 .) The exposed stem cells 3 then become a soft lining and blood on the socket turns to a fibrous tissue. (Lazarus Dep. p. 9-10 .) Prior to the surgery, Dr. Lazarus estim ated that Plaintiff would be able to return to work, full duty on February 1, 20 14. (Lazarus Dep. p. 1617.) However, as of a November 15, 20 13 post-surgical visit, it was evident that Plaintiff’s recovery was not proceeding as well as Dr. Lazarus anticipated, as Dr. Lazarus noted that Plaintiff was already “behind in his m otion.” (Lazarus Dep. p. 17-19.) Dr. Lazarus further testified that, as of J anuary 24, 20 14, Plaintiff was m aking appropriate progress, but was still nowhere near ready to return to work. (Lazarus Dep. p. 23.) Nor was Plaintiff able to return to work on February 1, 20 14, as Dr. Lazarus initially anticipated. (Lazarus Dep. p. 23-24.) On October 20 , 20 14, Dr. Lazarus provided Plaintiff with a note to give to NGC. (Silverm an Cert. Ex. B, Lazarus note.) The body of Dr. Lazarus’s note stated in its entirety: To Whom It May Concern: Please be advised that Peter Foster is under m y care. The patient was last seen in m y office on October 17, 20 14. Mr. Foster is released from m y care and m ay return to work. If you should have any questions, please do not hesitate to contact m y office. (Id.) 4 Plaintiff provided a copy of this note to Mike Wolverton, the HR Safety Manager of the Facility, who, on the same day, October 20 , 20 14, faxed a letter to Dr. Lazarus seeking clarification of the note. Wolverton testified at his deposition that Dr. Lazarus’s note was not clear to him because it did not specify in what capacity Plaintiff was able to return to work. (Wolverton Dep. p. 21-22, 56.) Wolverton further testified that his goal in faxing the letter was to “find out from [Dr. Lazarus] if [Plaintiff] had any lim itations.” (Wolverton Dep. p. 24.) Wolverton’s letter stated: Dear Mark Lazarus: Please review Pete Foster’s job description and let m e know if there are any activities listed Pete cannot perform? Thanks, let m e know if you have any questions. (Wolverton letter.) Wolverton enclosed a copy of Plaintiff’s job description along with the letter and faxed the package to Dr. Lazarus. (Id.; Wolverton Dep. p. 56-57.) Wolverton testified that he received facsim ile confirm ation that his transm ission of the letter and job description were received by Dr. Lazarus’s office, and Dr. Lazarus sim ilarly testified that his office received Wolverton’s package. (Wolverton Dep. p. 24; Lazarus Dep. p. 41.) Dr. Lazarus, however, never reviewed Wolverton’s letter or the job description that Wolverton sent to him , and never responded to Wolverton’s request for additional inform ation regarding Plaintiff’s lim itations, because, as he 5 testified, he never reads job descriptions, as he considers that to be a waste of his tim e. (Lazarus Dep. p. 14-15; 41-42.) NGC nonetheless scheduled Plaintiff for a return to work/ fitness for duty physical. (Oxenford Decl. ¶ 11.) Paul DeJ oseph, D.O. conducted the fitness for duty physical on October 21, 20 14. (DeJ oseph Decl. ¶ 11, DeJ oseph RTW note No. 1.) 2 Dr. DeJ oseph is a licensed Osteopathic Physician and Surgeon and is board certified in Fam ily Medicine and Osteopathic Manipulative Treatm ent. (DeJ oseph Decl. ¶ 4.) Dr. DeJ oseph reviewed Plaintiff’s m edical history and treatm ent with him . (Pl. Dep. p. 57.) Dr. DeJ oseph then tested Plaintiff’s shoulder by assessing, am ong other things, Plaintiff’s range of m otion, shoulder strength, and ability to bend and reach. (Pl. Dep. p. 57.) Dr. DeJ oseph measured Plaintiff’s shoulder abduction and noted when and where he was experiencing pain. (DeJ oseph RTW note No. 1.) Dr. DeJ oseph com mented that: “P[atient] continues to have lim ited m obility and strength above shoulder level. Dr. DeJ oseph regularly conducts return to work/ fitness for duty physical exam inations for NGC employees when they seek to return to work after m edical leaves of absences. (DeJ oseph Decl. ¶ 5; Oxenford Decl. ¶12.) Dr. DeJ oseph toured NGC’s Burlington, New J ersey plant in order to fully understand plant operations and the essential functions of the various jobs at the plant. (DeJ oseph Decl. ¶ 6-7; Oxenford Decl. ¶ 13.) Additionally, he has reviewed the job descriptions for NGC’s employees, including the job description for the lead m echanic position. (DeJ oseph Decl. ¶ 8-9.) 2 6 Motions below shoulder level are intact.” (DeJ oseph RTW note No. 1.) Dr. DeJ oseph also comm ented that Plaintiff was experiencing pain, and that, while he had som e hom e exercises, he needed physical therapy in other to return to work safely. (DeJ oseph RTW not No. 1.) Dr. DeJ oseph was particularly concerned with Plaintiff’s lack of upper body strength and told Plaintiff that he did not think he was ready to return to work without receiving upper body strengthening therapy. (Pl. Dep. p. 57-58.) After Dr. DeJ oseph’s exam ination and recom mendation, Plaintiff sought to obtain a physical therapy prescription from Dr. Lazarus. Dr. Lazarus initially declined to issue the prescription because, he testified, he did not believe physical therapy was indicated. (Lazarus Dep. p. 43.) Eventually, however, he prescribed the necessary physical therapy, which Plaintiff attended. (Pl.’s physical therapy prescription from Dr. Lazarus.) Plaintiff reported to his physical therapist that: “he has weakness and inability to elevate his arm out to the side” and “weakness and lim itations with overhead activity.” (Physical therapy record.) His physical therapist indicated that he was “a good candidate for skilled physical therapy to address [his] im pairm ents and achieve the functional goals.” (Physical therapy record.) Plaintiff consistently participated in physical therapy for his right shoulder, which involved range of m otion and strengthening 7 activities to im prove functional use of his right arm with tasks related to his job. (Physical therapy record.) Upon conclusion of his physical therapy regiment, Plaintiff was reexam ined by Dr. DeJ oseph, who determ ined that he was able to “return to work regular duty.” (DeJ oseph RTW note No. 2, 12-30 -14.) Once Wolverton received this clearance, he called Plaintiff and told him to return to work on J anuary 5, 20 15. (Wolverton Dep. p. 50 ; Pl. Dep. p. 64.) 3 On December 26, 20 14, Plaintiff filed suit against his employer in the Superior Court of New J ersey, Burlington County Law Division. The Com plaint alleges that Defendant discrim inated against Plaintiff on the basis of a disability (Count I) or a perceived disability (Count II), failed to engage in the interactive process (Count III), and failed to accom m odate Plaintiff’s disability (Count IV) in violation of the New J ersey Law Against Discrim ination, N.J . Stat. Ann. § 10 :5-1 (“NJ LAD”) when it denied Plaintiff the opportunity to work between October 20 , 20 14 and J anuary 5, 20 15. Dr. DeJ oseph’s second return to work note is dated Decem ber 30 , 20 14. Plaintiff testified that the difference in tim e, between Decem ber 30 , 20 14 and when he was asked to return to work on J anuary 5, 20 15, was due to a holiday (Pl. Dep. p. 64.) 3 8 Plaintiff argues he was not offered light duty, at one point was adm inistratively term inated. 4 The case was rem oved to this Court based on diversity jurisdiction, and Defendant now m oves for sum mary judgment. Defendant first argues that Plaintiff cannot show he was disabled or perceived as disabled when he attem pted to return to work in October 20 14. Next, Defendant argues that Plaintiff cannot prove he could perform the essential functions of his position in October 20 14. Alternatively, Defendant argues that Plaintiff has not produced any evidence from which a reasonable factfinder could believe Defendant’s reason for not returning Plaintiff to work in October 20 14 was pretextual. Finally, Defendant argues that Plaintiff never requested an accomm odation. Sum m ary J udgment Standard “Sum m ary judgment is proper if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law.” Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 Plaintiff also stated that he experienced an interruption in his insurance and 40 1(k) benefits, but adm itted that these were clerical m istakes that were rectified. (Pl. Dep. p. 72-75.) 4 9 (a). The Court will enter sum m ary judgm ent in favor of a m ovant who shows that it is entitled to judgm ent as a m atter of law, and supports the showing that there is no genuine dispute as to any material fact by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the nonm oving party must identify, by affidavits or otherwise, specific facts 10 showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum mary judgment, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgment, after adequate time for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility 11 determ inations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). NJ LAD Generally New J ersey has adopted the burden-shifting fram ework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as the starting point in circum stantial evidence discrim ination actions brought under its Law Against Discrim ination. Andersen v. Exxon Co., U.S.A., 446 A.2d 486, 490 91 (N.J . 1982). Though the McDonnell Douglas framework is followed in cases of discrim inatory discharge, the elem ents of the prim a facie case are m odified to fit the circum stances. Clowes v. Term inix Int’l, Inc., 538 A.2d 794, 80 5 (N.J . 1998); Bell v. K.A. Indus. Services, LLC, 567 F. Supp. 2d. 70 1, 70 6 (D.N.J . 20 0 8). Failure to Accom m odate To m ake out a prim a facie failure to accom m odate claim under the NJ LAD, Plaintiff m ust show that: (1) he was disabled or perceived to have a disability5; (2) he was otherwise qualified to perform the essential functions The NJ LAD refers to “handicap,” but defines handicap as a disability. Courts have used the terms interchangeably in this context. See Victor v. State, 4 A.3d 126, 135 (N.J . 20 10 ). 5 12 of the job, with or without reasonable accom m odation by the em ployer; (3) he suffered an adverse em ployment action because of the disability. Victor v. State, 952 A.2d 493, 50 3 (N.J . Super. Ct. App. Div. 20 0 8), aff’d as m odified, 4 A.3d 126 (N.J . 20 10 ). As to the second element, an example of a reasonable accomm odation is a leave of absence. N.J . Adm in. Code 13:132.5(b)(1)(ii). When an em ployee requests accomm odation, the employer has a duty to engage in an interactive process in an effort to assist the em ployee. J ones v. United Parcel Svc., 214 F.3d 40 2, 40 8 (3d Cir. 20 0 0 ). To show that an em ployer failed to participate in the interactive process, “the em ployee m ust show the em ployer was inform ed of the disability, the em ployee requested accom m odation, the employer m ade no good faith effort to assist, and the accom m odation could have been reasonably achieved” but for the employer’s lack of good faith. Victor, 952 A.2d at 50 4 (citing Tynan v. Vicinage 13 of the Superior Court, 798 A.2d 648, 657 (N.J . Super. Ct. App. Div. 20 0 2)). “Employers can show their good faith in a num ber of ways, such as taking steps like the following: meet with the em ployee who requests an accom m odation, request inform ation about the condition and what lim itations the em ployee has, ask the em ployee what he or she specifically wants, show some sign of having considered [the] 13 em ployee’s request, and offer and discuss available alternatives when the request is too burdensome.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999) (in the context of ADA and PHRA claim s). Analysis Because Defendant’s doctor did not clear Plaintiff to return to work in October of 20 14, the Court will proceed on the assum ption that he was perceived to be disabled at that tim e. Even so, Plaintiff has not established a prim a facie case under the NJ LAD because there is no record evidence to show he could perform the essential functions of his position in October 20 14. Rather, Plaintiff’s treating physician never reviewed the job description provided in order to m ake that determ ination. For Plaintiff to return to work in October 20 14 following his m edical leave of absence, Defendant’s com pany policies and practices provide that Plaintiff was to provide Defendant with: (1) a release from his treating physician stating he could return to work, and (2) clearance from Defendant’s occupational health provider. (See Oxenford Decl. ¶ 4.) 6 Defendant’s policies and practices for returning to work after a m edical leave of absence are designed to ensure the safety of both the returning worker and his co-workers and to enable Defendant to determ ine whether a returning em ployee can perform the essential functions of the job, with or without a reasonable accom m odation. (Oxenford Decl. ¶ 6.) 6 14 In addition, there is no evidence in the record before the Court that Plaintiff requested light duty or any other accom modation during his fifteen-m onth leave of absence. Instead, the testim ony indicates that Plaintiff never asked for any accomm odation, (Pl. Dep. p. 75-76), and Defendant was working toward returning Plaintiff to his position with no restrictions by referring him to appropriate m edical care. Plaintiff concedes that “an em ployer m ay ask an em ployee to subm it to exam ination by the em ployer’s physician if the em ployer has a reasonable belief that the em ployee’s m edical condition will im pair his ability to perform his job.” (Pl. Br. [un-numbered] p. 11.) Because Plaintiff has failed to establish a prim a facie case of disability discrim ination, the Court need not consider whether a reasonable factfinder could believe Defendant’s reason for not returning Plaintiff to work in October 20 14 was pretextual. Conclusion Accordingly, Defendant’s m otion for sum m ary judgm ent will be granted. An appropriate Order will accom pany this Opinion. Dated: August 11, 20 16 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 15
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