BAYYE v. BERGEN NEW BRIDGE MEDICAL CENTER et al, No. 2:2019cv19488 - Document 46 (D.N.J. 2022)

Court Description: OPINION. Signed by Judge Evelyn Padin on 12/7/2022. (ld, )

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BAYYE v. BERGEN NEW BRIDGE MEDICAL CENTER et al Doc. 46 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 1 of 16 PageID: 376 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FEDERADDIS BAYYE, Plaintiff, Civil Action No. 19-19488 (EP) (ESK) v. OPINION BERGEN NEW BRIDGE MEDICAL CENTER and JOHN DOE/JANE DOES A THROUGH D, Defendants. PADIN, District Judge. Plaintiff Federaddis Bayye, who identifies as Black and Ethiopian, worked for Defendant In 2012, Plaintiff broke her right wrist on the job. restriction, which limited how much weight she could lift. For a few months in 2018, Plaintiff returned to full duty. Later in 2018, the Hospital determined that Plaintiff could not perform her MHA job functions and fired her. Plaintiff sued, alleging disability discrimination under the Americans with Disabilities Act and , as well as Title VII and NJLAD race and national origin discrimination. The Hospital now seeks summary judgment dismissing the entire Complaint, which Plaintiff opposes. D.E.s 37, 44. For the reasons below, the Court will DENY in part and GRANT part . Specifically, the Court will dismiss the race and national origin discrimination claims, but not the disability claims. Dockets.Justia.com Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 2 of 16 PageID: 377 I. BACKGROUND1 A. The Hospital employed Plaintiff as an MHA Division. Facts ¶ 1. Plaintiff was a member of the American Federation of State, County and Id. (bathing, dressing, ambulating, feeding, and showering) and lifting, positioning, pushing, and/or transferring patients. Id. ¶ 2; Pl. Dep. 91:11-16; D.E. 37-4 at 9. Plaintiff also assisted with patient depatient) codes. Facts ¶¶ 2-4. B. On January 15, 2012, Plaintiff injured her right wrist on the job. Facts ¶ 7. When Plaintiff returned to work, she was placed on a light duty restriction. Id. She remained on light duty restriction until January 2018. Id. In January 2018, department of all employees on long-term restrictions, including Plaintiff. Id. ¶ 8. On January 29, 2018, a 1 These facts are from Rule 56.1 Statement of Undisputed Material Facts ( D.E. 37-2. furnish, with its opposition papers, a responsive statement of material facts, addressing each paragraph of the movant s statement, indicating agreement or disagreement and, if not agreed, stating each material fact in dispute and citing to the affidavits and other documents submitted in connection with the motion Loc.R.Civ.P. 56.1(a). Plaintiff is advised to follow the appropriate procedure in the future. The Court also relies upon the following documents: Declaration of Roy Park, 37-4 Mot Senior VP of Human Resources. D.E. -1 37-3 2 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 3 of 16 PageID: 378 meeting was held between Plaintiff and HR representatives. 2 Id. ¶ 9. During this meeting, the participants reached: maximum medical improvement. Id. ¶ 10. Plaintiff agreed that she could return to work without restrictions. Id. ¶ 11. C. Plaintiff work restriction From January 2018 to March 2018, Plaintiff worked without restriction. Id. ¶ 12. Toward doctor, Dr. McBride. Id. ¶ 14. The script imposed work guidelines of modified/light duty with Id. On April 5, 2018, another meeting to review 13. work restrictions was held. Id. ¶ This meeting included Plaintiff, her supervisor, her union representative, and HR representatives. Id. The participants to determine whether Plaintiff could perform essential MHA functions with or without a reasonable accommodation. Id. ¶ 15. Having determined that the permanent restriction prevented Plaintiff from performing essential MHA functions, the Hospital suspended Plaintiff, but agreed as the parties determined whether Plaintiff might qualify for other positions at the Hospital. Id. ¶ 16; Pl. Dep. 124:10-12 Plaintiff acknowledged that even after she was placed on leave from her MHA position, she knew she remained a Hospital employee. Pl. Dep. 124:10-12. The Hospital told Plaintiff they were going to try to find her other work. Id. 124:13-20. 2 Also in attendance telephonically was Winter. Facts ¶ 8. 3 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 4 of 16 PageID: 379 D. The Hospital attempts to find a reasonable accommodation On April 11, 2018, Plaintiff met with her union representative and Hospital Employment Manager Lauren Scutari. Id. ¶ 18. Plaintiff applied for a position as a Document Imaging Specialist , but never received an interview. Id.; Pl. Dep. 128:1-6. According to the Hospital, this is because the record room position required clerical and computer experience which Plaintiff admittedly lacked. Id. ¶¶ 19-20; Pl. Dep. 128:7-12 (acknowledging The Hospital afforded Plaintiff a chance to apply for other positions which could accommodate her 20-pound lifting restriction. Plaintiff declined one such position, in the because the job was Id. 124:16-20. Likewise, Plaintiff declined to apply for a bus driver position. Facts ¶ 23; Pl. Dep. 126:16-127:1. Plaintiff ; Pl. Dep. 177:2-178:2, 130:13-17. Plaintiff had applied only for the record room position for which she did not qualify. D.E. 37-4 at 23. ment manager union representative to determine if there was another position Plaintiff was interested in that she was qualified to perform. Id. E. prompts Evaluation The Hospital scheduled a June 22, 2018 meeting to review additional jobs that could , including Diet Clerk, Cashier, and Try Line positions in the Food and Nutrition Department. Facts ¶ 26; D.E. 37-4 at 25. At the meeting, Plaintiff presented a second note from Dr. McBride. Facts ¶ 27. The note, dated June 18, 2018, 4 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 5 of 16 PageID: 380 to work full duty Id.; D.E. 37-4 at 29. This contradicted e imposing a permanent restriction on Plaintiff lifting more than twenty pounds.3 Facts ¶ 28. The second note does not indicate whether Dr. McBride examined Plaintiff after imposing the permanent restriction, or otherwise indicate the basis for the change. Plaintiff testified that she saw Dr. McBride in person on June 18, 2018 and asked him to clear her to return to work. 4 Facts ¶ 29; Pl. Dep. 74-76. independent examination The Hospital performed the Evaluation on June 28, 2018 and received the results on July 3, 2018. Facts ¶ 34; D.E. 37-4 at 33, et seq. As relevant here, the Evaluated concluded that Plaintiff work up to 20 lb related to right upper extremity activities. D.E. 37-4 at 45. F. The Hospital fires Plaintiff The Hospital interpreted the Evaluation to conclude that Plaintiff could not meet the MHA ¶ 37. The Hospital also determined that Plaintiff was not qualified for, or interested in, any other available position. Facts ¶ 39. Accordingly, the Hospital fired Plaintiff by letter date August 7, 2018. Facts ¶ 40; D.E. 37-4 at 48. 3 Plaintiff has also submitted a May 2, 2018 from a Dr. Sidney Rabinowitz, M.D., P.A., which -4 at 1. It is unclear whether this letter was ever provided to the Hospital. The document also fails to note when (or if) Dr. Rabinowitz ever examined Plaintiff. But even if it were excluded, that would still leave one note . 4 The Hospital argues that this history from Dr. , which lists no visits by Plaintiff after March 19, 2018. D.E. 37-3 at 40. 5 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 6 of 16 PageID: 381 This action followed, alleging three counts. First, Plaintiff alleges race discrimination in violation of Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination. Compl. ¶¶ 23-26. Second, Plaintiff alleges disability discrimination under the Americans with Disabilities Act and the NJLAD. And third, Plaintiff alleges national origin discrimination in violation of the NJLAD. The Hospital now moves for summary judgment. D.E. 37. Plaintiff opposes. D.E. 44. The Hospital did not reply. II. LEGAL STANDARD no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of return a verdict for t Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary judgment. Id. may not make credibility Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). In issue for t Anderson, 477 U.S. at 249. 6 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 7 of 16 PageID: 382 A party moving for summary judgment has the initial burden of showing the basis for its motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts Id. at 324 (cleaned up - Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50). showing sufficient to establish the existence of an element essential to that part Celotex Corp. however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51. III. DISCUSSION A. (Count Two) will not be dismissed The ADA prohibits employers from discriminating against qualified individuals with a disability. 42 U.S.C.A. § 12112(a). A an individual with a disability who, with or without reasonable accommodation, can perform the essential In the absence of direct evidence of discrimination, which rarely exists, ADA claims follow the McDonnell Douglas burden-shifting paradigm to prove discrimination through indirect evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); McNemar v. Disney Store, Inc., 91 F.3d 610, 619 (3d Cir. 1996), abrogated on other grounds by Cleveland v. Policy 7 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 8 of 16 PageID: 383 Management Sys. Corp., 526 U.S. 795 (1999). First, a plaintiff establishes prima facie discrimination case by showing that s/he (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) has suffered an otherwise adverse employment decision as Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). New Jersey courts utilize a similar framework to analyze disparate treatment claims under the NJLAD. Davis v. Lowe s Home Centers, Inc., No. CIV. 13-345, 2014 WL 7269638, at *5 (D.N.J. Dec. 17, 2014) (citing McDonnell Douglas, 411 U.S. 792, and Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005)). To prove prima facie NJLAD discrimination, a plaintiff must demonstrate that she: (1) is disabled or is perceived to have a disability; (2) was qualified for the position; (3) was subjected to an adverse employment action; and (4) the employer sought to, or did fill the position with a similarly-qualified person. Victor v. State, 203 N.J. 383, 409-10 (2010); Gerety, 184 N.J. at 399. Under both the ADA and NJLAD, if the plaintiff meets the prima facie burden, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Sever v. Henderson, 220 Fed. App x 159, 161 (3d Cir. 2007) (citing Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998)) (citation omitted). To survive summary judgment, the plaintiff must then produce evidence from which a fact finder could reasonably either disbelieve the employer s articulated legitimate reasons or believe that a discriminatory reason was more likely than not a cause of the employer s action. Id. Back to the first McDonnell Douglas prima facie burden. Though the aning of the ADA. See 42 U.S.C. § 8 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 9 of 16 PageID: 384 The parties focus on the second factor. Plaintiff argues that she was qualified to perform (and was performing) her essential job functions with or without accommodations. Pl. Opp . 7. The Hospital disagrees, reasonable accommodation by offering a different, permanent light duty position. Hospital Mot. 9. Thus, the central question is whether there is any genuine issue of material fact as to whether Plaintiff could perform the essential functions of her MHA job. This can be further divided into two sub-questions: what the job functions are, and whether Plaintiff could perform them. If there is a genuine issue of material fact as to either, summary judgment must be denied. 1. The essential functions of the MHA job are unclear Although the prima facie burden is on the plaintiff to show that he is a qualified individual, Supinski. at 540 (quoting Rehrs v. Iams Co., 486 F.3d 353, 356 (8th Cir. 2007) and Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 35 (1st Cir. 2000)); see also 29 C.F.R. § to show that it actually imposes such requirements on its employees in fact, and not simply on 9 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 10 of 16 PageID: 385 on a case by case basis [based upon] all Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir. 1998) (quoting 29 C.F.R. § Pt. 1630, App. § 1630.2(n)). 29 C.F.R. § 1630.2(n)(1). Supinski v. United Parcel Serv., Inc., 413 F. App x 536, 540 (3d Cir. 2011) (quoting 29 C.F.R. § 1630.2(n)(1)). Under the ADA s implementing regulations, evidence that a particular job function is essential may include, but is not limited to: which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. Id. at 540 (citing 29 C.F.R. § 1630.2(n)(3)). Accordingly, in this context, summary judgment for the Hospital is appropriate only if Supinski, 413 F. at 540. And when there is a question of fact regarding an element in the prima facie case, the Court need not address the burden shifting framework until the factual dispute is resolved. Miller v. Cnty. of Lebanon Transit Auth., No. 10 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 11 of 16 PageID: 386 1:17-CV-1368, 2019 WL 1453077, at *4-5 (M.D. Pa. Apr. 2, 2019) (citing Supinski, 413 F. at 536). Here, the summary judgment record is, at best, ambiguous regarding the extent of the MHA Pl. Br 13. The Hospital, however, focuses on t pounds, incompatible with a permanent light duty maximum of 20 pounds. Park Decl. ¶ 16. But notably, neither the Hospital in its brief, nor the independent Evaluation relied upon to description. D.E. 37-4 at 9-11. And perhaps for good reason: that description lists several duties involving physical activity for e without specifying any weight or frequency. Id. That absence is made more conspicuous because frequency is mentioned elsewhere in the job requirements. Id. 10 (l There is also nothing in the record otherwise indicating the usual weight Plaintiff might have to lift. Cf Kotaska v. Fed. Express Corp., 966 F.3d 624, 630-31 (7th Cir. 2020) (record was undisputed that average package was 15 pounds medical restrictions precluded her from lifting a substantial portion of packages above her waist or shoulders. . Indeed, even a job description posted by the Hospital after firing Plaintiff used similar, general language without specifying any weight or frequency. D.E. 37-4 at 12-13. And where certain physical duties were added the listing explicitly notes that the MHA would assist, not perform those duties solo. See, e.g., D.E. 37-4 at 11 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 12 of 16 PageID: 387 Given these ambiguities, the Hospital See Supinski, 413 F. App x at 541 (reversing grant of summary judgment where loader/unloader job description refers to lifting of packages to without specifying those ); see also Davis, 2014 WL 7269638, at *8 (denying summary judgment because question of fact for a jury); Grande v. Saint Clare s Health Sys., 230 N.J. 1, 27-28 (2017) (summary judgment denied where there was a dispute as to whether an independent report , including lifting weight and frequency, were actually the ). Moreover, a fact finder can purposes, if an employee who supposedly cannot perform the function nevertheless succeeds at the job for an extended period. Brown v. Smith, 827 F.3d 609 (7th Cir. 2016) (four years); Shell v. Smith, 789 F.3d 715 (7th Cir. 2015) (12 years); Miller v. Illinois Dept. of Transp., 643 F.3d 190 (7th Cir. 2011) (employee performed the duties of his street-supervisor position for four years without ever needing to drive a bus); Jankowski v. Dean Foods Company, 378 F. Supp. 3d 697 (N.D. Ill. 2019) (plaintiff performed for over one year the essential functions of his job within medical restrictions through various methods and techniques, including reducing the weight of the cases that he has to lift, and that he could do so without help or decreasing productivity ); Crain v. Roseville Rehabilitation and Health Care, 2017 WL 1075070 (C.D. Ill. 2017) (employer offered nothing to she was able to meet job expectations as a transport aide or certified nursing assistant for five years despite permanent lifting restrictions). Cf. Dyke v. O Neal Steel, Inc., 327 F.3d 628 (7th Cir. 2003) (Plaintiff, who had one eye, was fired 12 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 13 of 16 PageID: 388 from a metal factory job after two weeks because he could not satisfy physical and vision requirements for binocular vision and two-week safety record was not enough to show prolonged safe performance). Here, the record support restriction and January 2018, when she was returned to full duty for three months. Pl. Opp . 13. There is no support in this record, or even an allegation, that Plaintiff posed a safety hazard to any patients because of any lifting restrictions. Accordingly, because the record is unclear as to what the MHA job functions were, summary judgment is inappropriate. 2. There is an issue of fact as to whether Plaintiff could perform functions Courts canno is not clear what the job entails. And here, ambiguity about the MHA precludes summary judgment to the Hospital on its argument that Plaintiff was NJLAD to perform those essential functions. Supinski at 542-43 ( Because we conclude there is a genuine factual issue as to whether such heavy lifting was an essential job function , we must also hold the District Court erred in concluding, as a matter of law, that UPS had no duty to change the requirements to accommodate ). But even if the MHA duties were clear and defined exactly as the Hospital says there would also be an issue of fact as to whether Plaintiff could perform those duties. T -17. But the Evaluation only determined that Plaintiff did not meet the requirements of the DOT defines the MHA position 13 MHA description, which Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 14 of 16 PageID: 389 occasional lifting of 50 pounds. D.E. 37-4 at 34. The Evaluation hedges its determinations, stating capacity requirement than the DOT. If the [Evaluation] is negative or mild regarding residual movement and/or asymmetrical strength deficit, it is within a reasonable degree or probability to The Evaluation also the final return-to-work determination. D.E. 37to be used as a guideline for back to work decision making by the attending physician, who has medical authority for the final decision on wo See Grande, 230 N.J. at 28-29 (denying makes clear that determination for final return to work abilities ... is deferred to treating physician ). Here, two separate doctors determined that Plaintiff could return to duty without restrictions. The Hospital challenges the reliability of Dr. McBride clearing Plaintiff, arguing that Mot. 6. But opinion, a determination not appropriate for summary judgment. As for the second note, attached to -4), t takes on added significance because a reply could have addressed that note. There is likewise another indication that Plaintiff could perform her MHA duties: she had already been performing them for years. Courts have denied summary judgment where an employee whose essential duties included lifting could actually perform those duties despite medical restrictions. See, e.g., Jankowski, 378 F. Supp. at 697 (genuine issues of material facts 14 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 15 of 16 PageID: 390 -injury Jankowski, there is evidence in the record, as discussed above, that Plaintiff actually did perform her duties for years before the Hospital chose evaluate[] the status of all employees on long-term restrictions[.] Mot. 4. Accordingly, having determined that the Hospital has not satisfied its burden and that genuine issues of material fact remain, the Court need not address the remaining McDonnell Douglas analysis. B. (Count One) and national origin (Count Three) discrimination claims will be dismissed for lack of any evidence The Hospital also seeks claims. Hospital Mot. 12-14. discrimination claims, the race and national origin discrimination claims are also analyzed under the McDonnell Douglas framework requiring plaintiff to first establish a prima facie claim of employment discrimination by a preponderance of the evidence. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). That burden may be met by establishing that: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position that he sought to retain; (3) the plaintiff suffered an adverse employment action, e.g., the termination of his employment; and (4) the adverse employment action occurred under circumstances that could give rise to an inference of intentional discrimination. Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008); see also Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 303 (App. Div. 2000) (addressing NJLAD claims under the McDonnell Douglas framework). prima facie case of Sarullo, 352 F.3d at 797 n.7. 15 Case 2:19-cv-19488-EP-ESK Document 46 Filed 12/07/22 Page 16 of 16 PageID: 391 The primary dispute here centers on the But Plaintiff herself acknowledged at her deposition that she never saw or heard a decision was made because arguments here, which attempt to walk back her admission, are conjectural. See, e.g., [I]f the termination was partially motivated by her English skill or accent, or the culture of being an Ethiopian, it is To the extent that Plaintiff argues that more discovery is necessary to establish additional facts, it is unclear what further discovery Plaintiff seeks to pursue, or what it would reveal. See Pl. Br. 11 (arguing that ; see Morgan v. Luft, No. 9:15-CV-0024, 2016 WL 1118452, at *1 (N.D.N.Y. Mar. 22, 2016) (rejecting argument that discove , nearly a year ago, Judge Edward Kiel provided the parties an opportunity to discuss any remaining discovery disputes, but Plaintiff made no mention of any outstanding discovery at that time. D.E. 34. discrimination claims is appropriate. IV. CONCLUSION DENIED in part (Count Two) and GRANTED in part (Counts One and Three). Counts One and Three are dismissed and Count Two remains. An appropriate order accompanies this Opinion. Dated: December 7, 2022 __________________ Evelyn Padin, U.S.D.J. 16

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