PATRICIA HERRING PARISI v. STATE OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4668-05T24668-05T2

PATRICIA HERRING PARISI,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY DEPARTMENT

OF HUMAN SERVICES,

Defendant-Respondent.

__________________________________________

 

Argued May 31, 2007 - Decided June 13, 2007

Before Judges Wefing, C.S. Fisher and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. MER-L-1376-04.

Emil S. Cuccio argued the cause for appellant (Cuccio and Cuccio, attorneys; Mr. Cuccio, on the brief).

Robert P. Preuss, Deputy Attorney General argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Preuss, on the brief).

PER CURIAM

In this appeal, we review the adequacy of a summary judgment that dismissed plaintiff's discrimination claim against defendant New Jersey Department of Human Services, her employer from July 29, 2002 to September 3, 2002.

Plaintiff was born with Arthrogryposis Multiplex Congenital, a condition that caused significant deformity in her legs and resulted in the amputation of her legs at the knee when plaintiff was fourteen years old. Plaintiff has since been confined to a wheelchair. She graduated from college and, thereafter, from Columbia University School of Law in 1980. In 1993, plaintiff received a presidential appointment to the United States Department of Education and served as the representative to the President and the Secretary of Education in a region that encompassed New Jersey, New York, Puerto Rico and the Virgin Islands, until the final day of President Clinton's administration in 2001.

In the Spring of 2002, plaintiff sought an appointment in Governor McGreevy's administration. She was contacted and eventually employed by defendant as a custodian of records. Plaintiff was terminated slightly more than one month after commencing employment with defendant.

Plaintiff commenced this action, alleging that defendant violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, by (1) terminating her employment without a legitimate, articulated, non-discriminatory reason, (2) subjecting her to disparate treatment, (3) failing to participate in the interactive process required by the LAD to provide reasonable accommodations, and (4) creating a hostile work environment. The trial court granted defendant's summary judgment motion as to all aspects of the complaint and plaintiff appealed. We affirm.

I

Plaintiff's claim that there were no legitimate non-discriminatory reasons for her termination required application of the burden-shifting analysis established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which our courts apply to LAD claims, Clowes v. Terminix International, Inc., 109 N.J. 575, 595 (1988).

The record demonstrates that plaintiff was a member of a protected class. And we assume for present purposes that the other aspects of plaintiff's initial burden of production, see Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005); Clowes, supra, 109 N.J. at 597, were met as well. Indeed, this burden has been described as being "rather modest," because its purpose is to demonstrate "that plaintiff's factual scenario is compatible with discriminatory intent -- i.e., that discrimination could be a reason for the employer's action." Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996) (quoted with approval in Zive, supra, 182 N.J. at 447). The establishment of this prima facie case creates an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949-50, 57 L. Ed. 2d 957, 967 (1978).

Plaintiff having provided evidence of a prima facie case of discrimination, the burden of production shifted to defendant to "articulate a legitimate, non-discriminatory reason for the adverse employment action." Zive, supra, 182 N.J. at 449. Here, in terminating plaintiff's employment, defendant's representatives cited her persistent lateness, claiming that plaintiff arrived late for work seven of the twenty-two days she was employed, even though she was permitted to arrive at 9:30 a.m., instead of 9:00 a.m. In her deposition, plaintiff acknowledged that she arrived one hour late for work on her third day of employment, that she arrived at 12:15 p.m. on another day, and that she arrived after 10:00 a.m. on three other occasions.

In addition, defendant asserted that plaintiff was absent without authorization for two days despite having applied for and been denied permission to be away from work for those same days. Plaintiff acknowledged the truth of these assertions at her deposition. Defendant also asserted plaintiff's failure to timely complete certain tasks and other evidence of plaintiff's failure to meet defendant's expectations.

We need not further delve into the details of the parties' factual arguments regarding what defendant claims were the inadequacies in plaintiff's job performance. We are satisfied that the trial judge accurately concluded that defendant had articulated legitimate, non-discriminatory reasons for her termination.

As a result, under the McDonnell Douglas standard, the burden of production shifted to plaintiff "to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Zive, supra, 182 N.J. at 449; Clowes, supra, 109 N.J. at 596. In this regard, to avoid the entry of summary judgment, "plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Fuentes v. Peskie, 32 F.3d 759, 764-65 (3d Cir. 1994) (quoted with approval in Kelly v. Bally's Grand Inc., 285 N.J. Super. 422, 431 (App. Div. 1995)).

In considering the sufficiency of the evidence regarding the overarching question of pretext, it does not matter that the court may believe plaintiff's termination was unfair. Viscik v. Fowler Equip. Co., 173 N.J. 1, 21 (2002); Gorham v. American Tel. & Tel. Co., 762 F. Supp. 1138, 1145 (D.N.J. 1991). What is relevant is whether the proffered reason was motivated by discriminatory intent. We are satisfied that the evidence provided in response to the motion for summary judgment did not support the claim that the reasons given for termination were pretextual and we affirm in this regard substantially for the reasons set forth by the trial judge.

II

Plaintiff also contends that she was subjected to disparate treatment. In order to defeat summary judgment in this regard, plaintiff was required to provide evidence that she was (1) handicapped within the meaning of the law, (2) objectively qualified for the position, (3) "nevertheless had been required to labor under conditions that were unreasonably different from those of other employees," and (4) the employer had sought to hire another to perform the same work after plaintiff was removed. Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, 480-81 (1991). In applying this standard against the evidence, as viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we are satisfied that plaintiff failed to create a question of fact regarding her claim of disparate treatment.

Plaintiff provided, among other things, a number of examples of how she contends she was treated differently from other employees, including: the denial of a private office, the denial of access to Westlaw, the denial of flex time, the denial of the assistance of another employee, and the denial of a better parking space than that provided. She also refers to unfair or insensitive comments allegedly attributed to a supervisor. Plaintiff, however, failed to demonstrate that other employees were not treated similarly.

With regard to the alleged insensitive or condescending comments, plaintiff acknowledged in her deposition that the alleged speaker "had an enormous amount of hostility towards everyone." As for the other factual aspects of this claim, plaintiff failed to provide evidence that any other similarly situated employee was provided with a private office, a better parking space, the assistance of another employee, or was permitted to come and go as they pleased or arrive after the designated start time.

The record also demonstrates that plaintiff's claim regarding the denial of a Westlaw password did not create a genuine issue of fact since Westlaw did not become operational in defendant's office until after plaintiff's termination; moreover, this claim must be viewed in light of the fact that defendant's subscription to Westlaw was limited. Only five Westlaw passwords were available, and all employees were expected to share these limited number of passwords. Thus, to the extent this point has any relevance, the record again demonstrates that plaintiff was not treated differently in this regard.

Summary judgment was correctly granted on this point because plaintiff provided insufficient evidence to suggest that she was "required to labor under conditions that were unreasonably different from those of other employees." Maher, supra, 125 N.J. at 480.

III

Plaintiff asserted that defendant failed to participate in the interactive process of providing reasonable accommodations required by her handicap. To sustain such a claim, plaintiff was required to show 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." Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super. 385, 400-01 (App. Div. 2002).

A discussion about accommodations occurred as early as the first day of plaintiff's employment when the subject was initiated by Barbara Allen, Director of the Office of Legal and Regulatory Liaison. As plaintiff would later testify at her deposition, Allen was "on top" of insuring that plaintiff received all necessary accommodations. Plaintiff was provided with a form by which she was to indicate all those accommodations she believed necessary. When plaintiff did not immediately respond to the request, Allen sent plaintiff an e-mail encouraging her completion of the form. When plaintiff finally responded, she made the following requests:

Because I use a wheelchair exclusively I need accessible work space/office

1. an office large enough to accommodate extra maneuverability room;

2. a small sofa so that I may get out of my chair and stretch time to time through the day;

3. the ability to use a private space for physical therapy from time to time;

4. parking space near the office building;

5. low file cabinets and low horizontal desk space and shelves;

6. computer wrist supports for key board and mouse;

7. It is helpful to have assistance getting my chair in and out of the car;

8. flextime and comptime as consistent with the office needs and supervisor's approval.

In her deposition testimony, plaintiff acknowledged that within about ten days of her starting employment, defendant had sufficiently reconfigured her workspace to accommodate plaintiff's wheelchair; that defendant provided a couch to meet her second request; that a room with a lock was made available for plaintiff to privately engage in the therapy referred to in her third request; that a parking space in a location that adjoined the building was made available; that low file cabinets and a low horizontal desk were provided in response to her fifth request; that computer wrist supports were provided in response to the sixth request; that, in response to the seventh request, defendant arranged to have a security guard help plaintiff get in and out of her car when she parked in the designated spot; and that, in response to her eighth and final request, flex time was permitted in that plaintiff was allowed to work from 9:30 a.m. to 5:30 p.m., rather than the usual 9:00 a.m. to 5:00 p.m.

Clearly, defendant substantially, if not perfectly, met plaintiff's requests for accommodations. Although plaintiff contends that the accommodations could have been better, we are satisfied that defendant met its legal obligations. In this regard, it is important to recognize that an employer's duty to accommodate "extends only so far as necessary to allow 'a disabled employee' to perform the essential functions of [the] job" and "does not require acquiescence to the employee's every demand." Tynan, supra, 351 N.J. Super. at 397. Plaintiff failed to demonstrate that the accommodations provided by defendant did not meet the standards imposed by law, and we agree with the trial judge that the accommodations that were made were reasonable as a matter of law.

IV

In her fourth and last contention, plaintiff claims she was subjected to a hostile work environment. The Supreme Court has held that to state such a claim, a plaintiff must allege conduct that occurred because of the plaintiff's protected status, which a reasonable person "would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603 (1993). This standard is not met by conduct which is merely offensive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295, 302 (1993). And the requirement that the conduct be "pervasive" is not satisfied by isolated incidents. In short, a court must examine the totality of the plaintiff's employment environment. Id. at 23, 114 S. Ct. at 371, 126 L. Ed. 2d at 302-03. The Court in Lehmann also cautioned about allegations of "[a] hypersensitive employee" who might have an idiosyncratic response to conduct that is insufficient, emphasizing that the conduct must be "objectively viewed." 132 N.J. at 613.

The trial judge thoroughly examined plaintiff's allegations of a hostile work environment and concluded that when viewed objectively and in their totality these contentions were insufficient to meet the requirement that defendant's conduct be "sufficiently severe or pervasive." Lehmann, supra, 132 N.J. at 603. We agree and affirm on this point substantially for the reasons set forth by the trial judge in his oral decision.

 
Affirmed.

For example, plaintiff quarrels with the particular location of the parking space, but the evidence reflects that the only available designated handicapped spaces were further away than where defendant allowed plaintiff to park.

(continued)

(continued)

12

A-4668-05T2

June 13, 2007