F. BLAISE CURCIO v. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2309-06T32309-06T3

F. BLAISE CURCIO,

Plaintiff-Appellant,

v.

UNIVERSITY OF MEDICINE AND

DENTISTRY OF NEW JERSEY,

Defendant-Respondent.

_____________________________________________

 

Submitted October 2, 2007 - Decided October 17, 2007

Before Judges Coburn and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2628-05.

Cuccio and Cuccio, P.C., attorneys for appellant (Emil S. Cuccio, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Charles S. Cohen, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, F. Blaise Curcio, appeals from the order granting the defendant, University of Medicine and Dentistry of New Jersey ("U.M.D.N.J.") summary judgment and dismissing the complaint. Plaintiff brought this suit under the New Jersey Law Against Discrimination (the "LAD"), N.J.S.A. 10:5-1 to -49, contending that defendant failed to provide him with a reasonable accommodation for his disability, thereby, violating the LAD. Under the facts and circumstances presented here, when looking at the competent evidence from the point of view most favorable to plaintiff, no rational fact finder could hold that defendant's conduct violated the LAD. We affirm.

Plaintiff was hired by U.M.D.N.J. as an untenured clinical professor of dentistry in 1989. He eventually became the director and vice chair of the Department of General Dentistry, although he continued to do clinical teaching while he held those positions.

In March 2002, at his request, plaintiff received a medical leave of absence due to a diagnosis of malignant hypertension which is a condition involving dangerously high blood pressure. He also suffered from headaches and dizziness, and appears to have experienced at least one incident of unconsciousness. In addition, he indicated that he would drop things unintentionally. Plaintiff was allowed to remain out of work for a total of fifteen months, which included six months medical leave. (Plaintiff's period of leave was longer than the maximum twelve-month period allowed by the provisions in the U.M.D.N.J. faculty handbook.) During this period, plaintiff acknowledged that he experienced poor balance, unsteady gait, fatigue, and depression. Throughout this period of time, plaintiff's doctors indicated that he was unable to work.

On May 16, 2003, U.M.D.N.J. wrote to plaintiff to find out when he would be able to return to his faculty position and to advise that he could ask for a reasonable accommodation. The letter indicated that due to the staffing needs of the department, his medical leave could not be extended further and his position would be terminated if he did not return to work. A reply was requested by May 23, 2003.

Upon receipt of the letter, plaintiff met with Dr. Robert Flinton, the department chair, on May 29, 2003. Plaintiff indicates that he told Flinton he wanted to return to work and requested a reasonable accommodation. However, plaintiff never specified what accommodation he needed.

According to Flinton, plaintiff requested an administrative position, but none was available. Plaintiff could not resume his administrative duties as director of the department because by then the department had been merged with another into a newly formed Department of Restorative Dentistry. This merger had been planned before plaintiff took his medical leave and had eliminated plaintiff's administrative position. The department needed plaintiff to work in his position as a clinical professor, which included working with students on live patients. Having heard nothing further from plaintiff, U.M.D.N.J. wrote to plaintiff on June 17, 2003, terminating his position. At that point, defendant still had not received any documentation from plaintiff's physicians clearing him for full-time work.

Plaintiff filed this lawsuit in March 2005, contending that U.M.D.N.J., in violation of the LAD, failed to provide him with a reasonable accommodation for his disabilities. After the parties engaged in discovery, defendant filed a motion for summary judgment which the trial court granted on November 17, 2006. This appeal followed.

Plaintiff raises the following issues on appeal:

POINT I

The court erred in holding that the plaintiff did not raise a genuine issue of material fact showing that the defendant failed to reasonably accommodate his disability.

POINT II

The plaintiff established a prima facie case of the defendant's failure to reasonably accommodate his disability.

In reviewing an appeal from a decision on a summary judgment motion, this court employs the same standard applied by the trial court. Prudential Prop. & Cas. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Such a motion must be granted where "no genuine issue of material fact" is present, and the movant is entitled to judgment as a matter of law." R. 4:46-2(c). The motion will be granted, where after viewing the evidence in the light most favorable to the nonmoving party, no rational fact finder could resolve the dispute in that party's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). After a careful review of the record and briefs, we are satisfied that plaintiff's arguments are without merit.

Plaintiff maintains that U.M.D.N.J. violated the LAD when it failed to provide him with a reasonable accommodation for his disability. To prove his LAD claim, plaintiff must show that he has a disability, that he is "otherwise qualified to perform the essential functions of the job, with or without the accommodation by the employer," and that he "suffered an adverse employment action because of the disability." Seiden v. Marina Assoc., 315 N.J. Super. 451, 465-66 (App. Div. 1998).

Further, under the LAD, once an employee seeks a reasonable accommodation, the employer must begin an "informal interactive process with the employee" in order to identify a reasonable accommodation. Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super. 385, 400 (App. Div. 2002). Here, plaintiff contends that U.M.D.N.J. violated the LAD by failing to engage in this interactive process. In order to make out such a claim, he must prove, as stated in Tynan, that:

(1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith.

[Id. at 400-01.]

To meet these standards, plaintiff must be able to show that he could have done the job with some reasonable accommodation. This plaintiff cannot do. At the time that he maintains he was seeking a reasonable accommodation, no physician had cleared him for work. In fact, a month after he received his termination notice, plaintiff applied for long term disability which he received for a period of time. Further, after his termination from U.M.D.N.J., defendant eventually went back to work, but since his termination, he has never held or applied for a job that involved teaching or performing dental work on live patients.

The LAD is not violated where an employee is terminated because the employee is unable to perform the job due to a handicap even with accommodation. Svarnas v. AT & T Communications, 326 N.J. Super. 59, 75 (App. Div. 1999). An accommodation is unreasonable if it "requires fundamental changes in the nature of the employment." Id. at 75-76. U.M.D.N.J. had no obligation to create an administrative or other position for plaintiff.

We note plaintiff's argument that he could not receive clearance to work until U.M.D.N.J. provided him with a job description; his physicians could then review the job description and determine whether he could do the job or recommend a reasonable accommodation. This argument makes no sense. At his deposition, plaintiff testified that he was told U.M.D.N.J. did not need an administrator; he understood that U.M.D.N.J. needed him to come back to teach as a clinical professor. Plaintiff was a clinical professor of dentistry and former department chair at U.M.D.N.J., at the time he commenced his medical leave of absence. He certainly knew what the job of clinical teaching at a dental school entailed.

Looking at the facts from the point of view most favorable to plaintiff, no rational fact finder could find a LAD violation based on this record.

Affirmed.

(continued)

(continued)

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A-2309-06T3

October 17, 2007