WOLOSHIN v. RUTGERS UNIVERSITY et al, No. 1:2015cv02588 - Document 22 (D.N.J. 2016)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 9/28/16. (js)
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WOLOSHIN v. RUTGERS UNIVERSITY et al Doc. 22 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY MARK WOLOSHIN, : Hon. J oseph H. Rodriguez Plaintiff, : Civil Action No. 15-2588 v. : OPINION RUTGERS UNIVERSITY, J UAN : COLLAZO, LISTON HODGE, KRIS SOLT, RUTGERS UNIVERSITY DINING: SERVICES DIRECTORS AND MANAGERS 1-10 , and RUTGERS : UNIVERSITY HUMAN RESOURCES STAFF 1-50 , : Defendants. : This m atter is before the Court on Defendants’ m otion for sum m ary judgm ent. [Doc. 15.] The Court heard oral argument on the m otion on August 9, 20 16, and the record of that proceeding is incorporated here. For the reasons place on the record that day, as well as those outlined below, the m otion will be granted. Background Essentially, Plaintiff has alleged that Defendants term inated his em ploym ent because of his disability or perceived disability, in violation of Title I of the Am ericans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), 1 Dockets.Justia.com and the New J ersey Law Against Discrim ination (“NJ LAD”), N.J . Stat. Ann. § 10 :5-1. Plaintiff Mark Woloshin is deaf. In J anuary 20 13, he attended a job fair held by Rutgers University Dining Services at Rutgers University’s Cam den Cam pus. After learning about the job fair from Defendant J uan Collazo, Plaintiff twice spoke with a representative of Dining Services on an operator-assisted video phone for the deaf. There was no sign language interpreter at the job fair. At the job fair, Plaintiff allegedly inform ed Danielle Niro, Assistant Director of Business Affairs for Dining Services, that he did not understand the m aterial reviewed. At the end of the presentation, however, Plaintiff m et with Erich Burns, an Assistant Catering Manager for Dining Services. The two com m unicated by pen and paper and together com pleted Plaintiff’s job application. At the top of his application, Plaintiff wrote, “I’m deaf of hearing. Thank you.” Subsequently, Plaintiff received a job offer via the operator-assisted video phone for a dishwasher position at the Cam den campus dining facility, with a start date of February 20 , 20 13. He reported to work that day and attended a new hire orientation. There was no sign language interpreter at the new hire orientation, nor was a sign language interpreter provided at Dining Services group meetings or in the workplace. As such, 2 Plaintiff contends he did not understand the rules of the workplace and did not understand who his m anagers were. Plaintiff has alleged that Defendants’ failure to provide a sign language interpreter constituted a failure to engage in an interactive process to assure that Plaintiff was accom m odated in the workplace because of a disability. He also states that he was harassed in the workplace because of his disability by Defendants J uan Collazo and Liston Hodge. At the heart of this m atter are the events that took place a full year after Plaintiff began his em ploym ent with Dining Services. He alleges that on the evening of February 23, 20 14, Collazo took a bag of shrim p out of the Dining Services freezer and asked Plaintiff “if he wanted one.” (Am. Compl., ¶ 32.) Plaintiff responded “yeah.” (Am. Com pl., ¶ 33.) Colazzo allegedly told Plaintiff “to hide the opened box of frozen shrim p and take it hom e to feed his fam ily.” (Am . Com pl., ¶ 34.) Next, Plaintiff alleges that he thought Collazo “was a m anager who had the authority to giving him food to take hom e, so Plaintiff . . . thinking that perhaps the opened bag of frozen shrim p had an approaching expiration date . . . packed the opened box of frozen shrim p in his backpack.” (Am . Com pl., ¶ 35.) That evening, Crystal Cam pfield called Plaintiff to her office, inspected his backpack, and inform ed Plaintiff he was fired. (Am. Com pl., ¶ 38.) The following day, 3 Defendant Kris Solt confirm ed by an operator-assisted video phone call that Plaintiff had been term inated. (Am . Com pl., ¶ 39.) Plaintiff com plains that he was not offered a hearing and opportunity to be heard with a sign language interpreter present. (Am . Com pl., ¶ 42.) Plaintiff filed a ten-count Am ended Com plaint with this Court in October of 20 15. The first four counts are for various violations of Title I of the ADA allegedly caused by Defendants’ discrim inatory intent. Through briefing and at oral argument, Plaintiff’s counsel conceded that these claims are valid only against the employer, Rutgers University, not against any individual Defendants. See Koslow v. Pennsylvania, 30 2 F.3d 161, 178 (3d Cir. 20 0 2). In addition, in briefing and during oral argument, Plaintiff abandoned the procedural due process claim s brought under the Fourteenth Am endm ent and New J ersey Constitution. (Pl. Br., p. 18.) There are four counts remaining, brought pursuant to the NJ LAD. Again, Plaintiff concedes that there are no viable claim s against individuals under the NJ LAD unless against a supervisor for aiding and abetting. The only supervisor nam ed as a Defendant is Solt; Plaintiff argues that Solt’s failure to provide a sign language interpreter at the February 20 , 20 13 orientation constituted deliberate indifference and substantially assisted the unlawful conduct of his em ployer. Plaintiff further clarified that he abandoned any 4 claim of harassm ent by Defendant Hodge, so there is no claim regarding Hodge’s alleged harassm ent against Rutgers University or Solt. Rather, the only rem aining allegation of discrim inatory harassm ent is regarding the actions of Collazo attributable to Rutgers University, as Plaintiff has conceded that summ ary judgm ent is appropriate insofar as this claim has been alleged against Solt. (Pl. Br., p. 17.) In sum mary, the Court is left with: Count I – em ploym ent discrim ination by Rutgers University in violation of Title I of the ADA; Count II – harassment as discrim ination by Rutgers University in violation of Title I of the ADA; Count III – failure by Rutgers University to accom m odate Plaintiff’s known physical lim itation in violation of Title I of the ADA; Count IV – failure by Rutgers University to engage in the interactive process m andated by the ADA in violation of Title I of the ADA; Count VI – em ploym ent discrim ination in violation of the NJ LAD by Rutgers University; Count VII – harassm ent as discrim ination by Rutgers University and aided and abetted by Solt in violation of the NJ LAD for the actions of Collazo; Count VIII – failure by Rutgers University to accom m odate Plaintiff’s known physical lim itation in violation of the NJ LAD; Count IV – failure by Rutgers University to engage in the interactive process in violation of NJ LAD. 5 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 (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 6 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 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 7 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 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). Discussion Title I of the ADA prohibits an em ployer 1 from discrim inating “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, em ployee com pensation, job training, and other term s, conditions, and privileges of employm ent.” 42 U.S.C. § 12112(a). Sim ilarly, under the NJ LAD, an employer m ay not discrim inate or take any unlawful em ploym ent practice “against any person 1 Incorporating the enforcement scheme of the Civil Rights Act of 1964, Title I of the ADA authorizes private injunctive suits against a “respondent,” defined by statute to include an “employer.” 42 U.S.C. §§ 20 0 0 e(n), 20 0 0 e– 5(f)– (g). Koslow v. Com m onwealth of Pennsylvania, 30 2 F.3d 161, 177 (3d Cir. 20 0 2). 8 because such person is or has been at any tim e disabled.” N.J . Stat. Ann. § 10 :5– 4.1. The Supreme Court’s standard articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides the burden shifting fram ework this Court uses to assess an ADA claim on a m otion for sum m ary judgment. Shaner v. Synthes, 20 4 F.3d 494, 50 0 (3d Cir. 20 0 0 ). Analysis of a claim under the NJ LAD also follows that of a claim under Title VII. Schurr v. Resorts Intern. Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999). “To establish a prim a facie case of discrim ination under the ADA, a plaintiff m ust . . . show ‘(1) he is a disabled person within the m eaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accom m odations by the employer; and (3) he has suffered an otherwise adverse em ploym ent decision as a result of discrim ination.’” William s v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 20 0 4) (citing Taylor v. Phoenixville School Dist., 184 F.3d 296, 30 6 (3d Cir. 1999)). See also Clowes v. Term inix Intern., Inc., 538 A.2d 794, 80 5 (N.J . 1988) (regarding the prim a facie case of handicap discrim ination under the NJ LAD). In the end, a plaintiff m ust show that his disability “actually m otivated the employer’s decision.” Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (20 0 3) (citation om itted). 9 No party contests that Plaintiff was disabled. The Court will also assume, since he worked in the position for a year, that Plaintiff was otherwise qualified to perform the essential functions of his job. The issue then becomes whether Plaintiff suffered an adverse em ploym ent decision as a result of discrim ination. If so, the defense m ay proffer a legitim ate non-discrim inatory reason for its action and shift the burden back to Plaintiff to establish pretext. In this case, however, the record is clear that Plaintiff was term inated for stealing from his employer. Plaintiff now argues that “he suffered an adverse em ployment decision as a result of his disability by way of deliberate indifference . . . in that he was never provided with an Am erican Sign Language interpreter” on February 20 , 20 13. (Pl. Br., p. 6-7.) Thus, in briefing this m otion, Plaintiff has not argued that his term ination was the adverse em ploym ent action at issue. (Pl. Stm t. Material Facts, ¶ 70 .) Rather, it appears that Plaintiff’s m ain claim is now that Rutgers University did not accom m odate his disability by providing a sign language interpreter at his employee orientation. To establish a prim a facie case of failure to accom m odate under the ADA, Plaintiff m ust establish: (1) he is disabled within the m eaning of the ADA; (2) he is qualified to perform the essential functions of his job with or 10 without reasonable accom m odation; and (3) his em ployer refused to provide him with a proposed reasonable accom m odation. See Solom on v. Sch. Dist. of Philadelphia, 882 F. Supp. 2d 766, 779 (E.D. Pa. 20 12). 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 disability2 ; (2) he was otherwise qualified to perform the essential functions 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 ). 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 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 ). 2 11 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)). 3 “Em ployers 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] 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). The ADA’s regulations provide: “To determ ine the appropriate reasonable accom modation it m ay be necessary for the [em ployer] to initiate an inform al, interactive process with the [em ployee] in need of Under the ADA, an em ployer comm its unlawful discrim ination if the em ployer does not reasonably accom modate the known physical or mental lim itations of an otherwise qualified disabled employee, unless the em ployer “can demonstrate that the accom m odation would im pose an undue hardship on the operation of the business of [the em ployer].” 42 U.S.C. § 12112(b)(5)(A). Sim ilarly, under the LAD, an em ployer “m ust m ake a reasonable accomm odation to the lim itations of a handicapped employee or applicant unless the em ployer can dem onstrate that the accom m odation would im pose an undue hardship on the operation of its business.” Soules v. Mt. Holiness Mem orial Park, 80 8 A.2d 863, 867 (N.J . Super. Ct. App. Div. 20 0 2) (internal citations om itted); N.J .A.C. 13:13-2.5(a) and 2.8(a)(b)(1). 3 12 accom m odation. This process should identify the precise lim itations resulting from the disability and the potential reasonable accom m odations that could overcom e those lim itations.” 29 C.F.R. § 1630 .2(o)(3). Here, Defendants argue that Plaintiff cannot show that he requested a reasonable accom modation for his disability at no tim e did Plaintiff ever request an interpreter – or any accomm odation for that m atter. See Solt Cert. ¶ 20 , 27 (“At the tim e he received and signed the new hire docum ents, Plaintiff did not ask for an interpreter to assist him , nor did he tell Ms. Sm ith or m e that he did not understand what he was signing.” “At no tim e during his em ploym ent with Rutgers did Plaintiff ever request that he be provided with an interpreter.”). Further, there is nothing in the record evidence to suggest Defendants were aware that Plaintiff needed an accom m odation, or that he did not know how to ask for one. Accordingly, Defendants’ obligation to participate in the interactive process with Plaintiff, or provide Plaintiff with an interpreter, was not triggered. Plaintiff counters that this is a case of disparate treatment, where his disability m otivated Defendants’ decision to put him at a disadvantage by not providing a sign language interpreter at his new em ployee orientation to be on equal footing with hearing employees to understand the rules. (Tr. of Oral Arg., p. 19.) The Court finds no discrim inatory anim us in the record, 13 however, regarding the lack of a sign language interpreter at the orientation, which was held approximately one year prior to the shrim p incident. 4 Therefore, Plaintiff’s claim s of discrim ination do not survive. The Court is left with the claim of Collazo’s harassment of Plaintiff due to his disability. The standards applicable to harassment claim s under Title VII apply to the other statutory prohibitions against em ployment discrim ination, including claim s of disability harassment. See Walton v. Mental Health Ass’n of S.E. Pa., 168 F.3d 661, 667 (3d Cir. 1999). Thus, to succeed on a claim for harassment based on disability a plaintiff m ust show that: “(1) [he] is a qualified individual with a disability under the ADA [or LAD]; (2) [he] was subject to unwelcom e harassm ent; (3) the harassment was based on h[is] disability …; (4) the harassment was sufficiently severe or pervasive to alter the conditions of h[is] em ployment and to create an abusive working environm ent; and (5) [the employer] knew or should have known of the harassm ent and failed to take prom pt effective rem edial action.” Rubano v. Farrell Area Sch. Dist., 991 F. Supp. 2d 678, 70 0 (W.D. 4 To the contrary, Plaintiff’s supervisor, Defendant Kris Solt, certified, “My ex-wife, to whom I was m arried for 18 years, and the m other of m y two children, has a hearing im pairment. She is totally deaf in her right ear and partially deaf in her left ear since she was a baby, as the result of Scarlet Fever. Living with her m ade m e very [cognizant] of others with hearing disabilities and helped me to develop skills to better comm unicate with those who have hearing im pairments.” (Solt Cert. ¶ 26.) 14 Pa. 20 14) (citing Walton, 168 F.3d at 667). Factors relevant to the determ ination of whether the work environm ent is hostile or severe include: “the frequency of the discrim inatory conduct; its severity; whether it is physically threatening or hum iliating, or a mere offensive utterance; and whether it unreasonably interferes with an em ployee's work perform ance.” Harris v. Forklift Systems, 510 U.S. 17, 23 (1993). Not all, m erely alleged, offensive conduct is legally actionable harassment. Rather, in order to prevail on his claim , Plaintiff m ust also prove that the conduct of which he com plains was so “severe or pervasive” that it “altered the terms and conditions of h[is] em ployment” and “created a hostile and abusive working environment.” See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1999). There is nothing in the Am ended Complaint or briefing on this m otion that indicates what Collazo did that could be construed as harassment based on disability discrimination. At oral argum ent, there was m ention that Collazo allegedly slapped Plaintiff “on the butt.” There has been no causal connection, however, between that alleged action and Plaintiff’s disability, nor is there any indication that Defendants were aware of the conduct. 15 Conclusion For the reasons stated above, and in keeping with the discussion held on the record during oral argum ent, Defendants’ m otion for sum m ary judgm ent will be granted. An Order will accom pany this Opinion. Dated: Septem ber 28, 20 16 / s/ J oseph H. Rodriguez J oseph H. Rodriguez, USDJ 16
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