KAREN WINTERS v. SHARP ELECTRONICS CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6105-05T56105-05T5

KAREN WINTERS,

Plaintiff-Appellant,

v.

SHARP ELECTRONICS CORPORATION,

Defendant-Respondent.

_________________________________________________

 

Submitted October 24, 2007 - Decided

Before Judges Axelrad, Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, L-8855 03.

DiFrancesco, Bateman, Coley, Yospin, Kunzman

Davis & Lehrer, attorneys for appellant

(Richard P. Flaum, of counsel and on the

brief; Marissa Becker Ruggiero, on the brief).

Drinker Biddle & Reath LLP, attorneys for

respondent (Stephen R. Long and James K.

Webber, Jr., on the brief).

PER CURIAM

Plaintiff, Karen Winters, appeals from an order of summary judgment dismissing her complaint against her employer, defendant Sharp Electronics Corporation, filed pursuant to the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, for disability discrimination, failure to accommodate, retaliatory discharge, and constructive discharge.

On appeal, plaintiff makes the following arguments:

POINT I

LEGAL STANDARD.

POINT II

THE TRIAL COURT ERRED IN ESTOPPING PLAINTIFF'S DISCRIMINATION CLAIM SINCE THE QUESTION OF WHETHER PLAINTIFF WAS UNABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF HER JOB AS OF JULY 1, 2002 IS A JURY QUESTION.

A. THE COURT ERRED IN ITS INTERPRETATION OF CLEVELAND v. POLICY MANAGEMENT SERVICES.

B. PLAINTIFF WINTERS' APPLICATION FOR SSDI BENEFITS DOES NOT DENUDE HER LAD CLAIMS.

C. JUDICIAL ESTOPPEL DOES NOT APPLY.

POINT III

THE TRIAL COURT ERRED IN DISMISSING THE

COMPLAINT BECAUSE THE QUESTION OF WHETHER

PLAINTIFF WAS REASONABLY ACCOMMODATED

THROUGH THE INTERACTIVE PROCESS IS AN ISSUE

OF FACT.

POINT IV

THE TRIAL COURT ERRED IN DISMISSING

PLAINTIFF'S RETALIATORY DISCHARGE CLAIM AS

PLAINTIFF MADE A PRIMA FACIE CASE.

POINT V

THE TRIAL JUDGE IGNORED PLAINTIFF'S CLAIMS

THAT SHE WAS DISCRIMINATED AGAINST DUE TO

HER DISABILITY (DISPARATE TREATMENT).

We affirm.

I.

The record discloses that plaintiff was employed by Sharp for thirteen years as a claims adjustment analyst. On August 14, 2001, she sustained injuries to her back and knees in a fall in Sharp's parking lot, but returned to work on the following day. A worker's compensation claim was opened at this time.

According to the file maintained by Helen Hark, Sharp's Benefits Manager, she was notified in May 2002 that plaintiff had been experiencing back pain since April, which plaintiff associated with her fall eight months earlier. Although a consultation with a neurosurgeon was initially contemplated, after a spinal MRI was negative, plaintiff instead commenced physical therapy. At that time, plaintiff determined not to pursue a workers' compensation claim. Plaintiff was permitted to attend physical therapy appointments during the work day.

On May 22, 2002, plaintiff made a request, supported by a letter from her physical therapist, for a special chair to accommodate her back problems and reduce the pain associated with them. The request was approved on May 24, 2002 and, shortly thereafter, plaintiff was offered a catalogue of chairs from which, following consultation with her physical therapist and physician, plaintiff picked a chair that met her specifications. There is no question that the chair was ordered on June 14, 2002, although a dispute remains as to its date of arrival. In the interim, plaintiff was offered her choice of existing available chairs.

At some time after June 14, 2002, plaintiff was informed that she had not punched in on the company's time clock at required times on June 5, 7 and 10. That notice led to a memo from plaintiff to various Sharp personnel, dated June 19, 2002, in which she stated that she had been taking the narcotic pain killer Vicodin for the past two weeks because of a flare-up of back pain that had made it difficult to walk, and that the medication made her forgetful. She then attested to the fact that she had been at work on the days in question, and stated: "I am now trying to not take this medication but if my back still is a problem I will have to decide then what I should do about this problem." In a second memorandum, written on the same day, plaintiff inquired what her pay would be if she were to take a short-term disability leave, and the maximum period of such a leave. She also inquired whether she could apply for workers' compensation while continuing to work on days when she was able to do so. Benefits manager Hark's notes indicate that, at that time, she spoke to plaintiff regarding her safety asking, if she could not remember to punch her time card, whether she should be at work or driving a car. According to Hark, plaintiff was told at that time that if she continued to take Vicodin, the company would need a note from plaintiff's physician indicating that she was cleared for work and driving. Hark recorded that workers' compensation benefits were also discussed, and plaintiff was advised to consult with her doctor as to whether her condition were work-related. Plaintiff denies this conversation, except to admit that she mentioned workers' compensation to Hark, who appeared irritated at the suggestion that plaintiff thought herself eligible for benefits.

On June 27, 2002, plaintiff's supervisor, William Munster, contacted Hark, stating that for the past six months, he had noted that plaintiff was undergoing mood swings, that she left early as the result of back pain, and had utilized all of her sick time. Munster stated further that, on occasion, plaintiff had lain on the floor of her cubicle, complaining of back pain and numbness in her legs. She had worked approximately twenty-six hours in the past two weeks. On the same date, plaintiff indicated to the company's workers' compensation carrier that she wished to reopen her claim. She was referred for an independent medical examination by Dr. Snyder.

A meeting between Hark, Munster, plaintiff, her union representative, and others occurred on July 1, 2002. According to Sharp's documents, at the meeting, plaintiff was advised to leave work until she could provide documentation from her physician that it was safe for her to work and to drive. Plaintiff was advised further that her absence from work would be unpaid, her sick time having been used, unless she wished to utilize vacation time. However, short-term disability insurance benefits and possible workers' compensation were discussed. Plaintiff claimed at her deposition that at the meeting she was told not to return until she was 100% better, and that "[n]o one mentioned bringing a doctor's note." However, in a grievance dated July 8, 2002, plaintiff acknowledged she had been told at the meeting "not to return to work without a note from my doctors saying that I could work." In discovery, she also admitted that Sharp had agreed to reevaluate her ability to return to work in light of the information provided.

Plaintiff has also noted that in his deposition, her supervisor, Munster, stated that he was surprised that the company had taken the action that it did. However, she has not contested the amount of pain she was experiencing at the time, the amount of Vicodin she was taking, or the effects of such medication. Nor has she offered any proof that it was unreasonable for Sharp to have concerns regarding her condition or for it to require proof of her fitness for travel and work.

By July 8, 2002, plaintiff had retained legal counsel.

Plaintiff asserts that she obtained a doctor's note from Dr. Shahanian on July 2, 2002, but she could not remember to whom she had given it. Sharp claims that it did not receive the note, and that a note was again requested in a memo to plaintiff, dated July 16, and a letter to her attorney, dated July 17, 2002. The requested note was not thereafter provided.

A verbal report from workers' compensation examiner, Dr. Snyder, received on July 10, 2002, conveyed his impression that plaintiff was not suffering from a work-related injury, but that she had degenerative spinal changes that required additional care from plaintiff's personal physician. Plaintiff's workers' compensation claim was denied by letter dated July 12, 2002.

Plaintiff was officially placed on medical leave on July 8, 2002. In a medical certificate accompanying plaintiff's first application for such benefits, plaintiff's physician, Dr. Winters, had opined that she could return to work on August 1, 2002. However, the medical certificate of plaintiff's new physician, Dr. Donna DePhillips, accompanying plaintiff's later, undated, application for such benefits indicated a projected six-month period of disability. Dr. DePhillips attested to plaintiff's inability to work as the result of "constant low back pain with inability to sit or stand for more than 15 [minutes] at a time -- unable to lift/bend/twist." On August 12, 2003, plaintiff was informed that she was eligible for Sharp's short-term disability insurance benefits, with an estimated return to work date of February 1, 2003. An application for State short-term disability benefits disclosed the same estimated period of disability. State temporary disability benefits in the amount of $324 per week were authorized on October 23, 2002.

By letter dated January 7, 2003, Hark informed plaintiff that the twenty-six week period of short-term disability offered by the company ended on January 3, 2003. Hark reminded plaintiff that she had been provided with application materials for long-term disability benefits through MetLife, but that the application had not been returned. The letter concluded:

In order to avoid any further delay in the consideration of your possible claim for LTD benefits by MetLife should you believe you are eligible and wish to apply, it is imperative that the forms, completed by you and your treating physician, be completed and returned to my attention as soon as possible.

Plaintiff responded to the letter on January 9 in a voicemail message to Hark that included the statement: "I just wanted to let you know that the . . . surgeon did schedule . . . knee surgery for me on January 31st so I know that's going to affect my February 1st . . . date of coming back to work." In a further voicemail message to plaintiff's supervisor, Munster, plaintiff informed him that she was scheduled for surgery on her right knee on January 31, 2003, and that if successful, she would then have surgery on the left knee. Plaintiff stated that she did not know when she could return to work.

A long-term disability application was submitted by plaintiff on January 13, 2003, and it was approved.

Following receipt of the January 9 voicemails from plaintiff, a letter of termination, dated January 10, 2003 was prepared by Sharp's vice-president for human resources. However, Sharp did not effect plaintiff's termination until February 11, 2003, when its Senior Manager for Human Resources, Gary Bonomolo, sent a letter to plaintiff "confirming" her separation, effective January 3, 2003.

Prior to her termination and thereafter, plaintiff repeatedly certified that she was unable to work. In her July 30, 2002 application for short-term disability benefits, plaintiff certified that she was "unable to work during the period for which benefits are claimed . . ." and that she knew the law "provides penalties for false statements made to obtain benefits." Her physician, Dr. Winter, certified that she was "continuously and totally disabled (unable to perform any and all job duties) from July 1, 2002 to August 1, 2002." Identical certifications were made by plaintiff in the undated, second short-term disability application that was accompanied by Dr. DePhillips' certification of continuous total disability, and her estimate of a six-month disability period. The application for benefits filed with the State contained a similar certification by plaintiff, dated September 6, 2003, which stated: "I was unable to work during the period for which benefits are claimed," and attested to plaintiff's knowledge of the penalties that could be imposed for false swearing.

Plaintiff's long-term disability application with MetLife was accompanied by the certification of treating physician, Stephen McIlveen, who attested that plaintiff was unable to perform her job duties. In a further certification, dated July 28, 2003, Dr. McIlveen stated that plaintiff remained totally disabled for her own occupation and for any other occupation. He gave October 1, 2003 as a "possible" date for her return to work. However, in an additional certification dated October 15, 2003, Dr. McIlveen reported that plaintiff was to undergo left knee arthroscopy on October 24, 2003 and that he had not advised plaintiff to return to work as the result of her scheduled surgery. Dr. McIlveen provided another certification dated March 5, 2004, which stated that plaintiff remained totally disabled from performing the activities of her own occupation, but that he could not determine whether she could perform the activities of "any" occupation. He gave a return to work date of April 15, 2004. Long-term disability benefits were terminated by MetLife on June 15, 2004.

In addition to the foregoing, plaintiff applied for Social Security Disability Insurance (SSDI) benefits on April 17, 2003, alleging disability for a closed period from July 2, 2002 to February 7, 2005 when plaintiff returned to work on a fulltime basis. Upon denial of benefits, plaintiff appealed, and on June 9, 2005, a hearing was held in the matter before a Social Security Administration hearing examiner, at which plaintiff, represented by legal counsel, testified. In recommending approval of the application for the closed period from July 2, 2002 until February 7, 2005, the hearing examiner made the following findings, among others:

2. The claimant's impairments which are considered to be "severe" under the Social Security Act are as follows: bilateral knee pain status post multiple surgeries.

* * *

4. The claimant's allegations are credible.

5. During the closed period of disability, the claimant had the residual functional capacity to do the following: less than sedentary work.

6. During the closed period, the claimant was unable to perform her past relevant work.

* * *

8. Considering the claimant' residual functional capacity and vocational factors, the issue of transferability of skills is not material in this decision.

9. Based upon the claimant's residual functional capacity, and vocational factors, there were no jobs existing in significant numbers which she could perform. This finding is based upon the following: During the closed period of disability, the combination of the claimant's exertional and non-exertional limitations, including those cause by pain and the side effects of pain medication, so eroded the sedentary occupational base that she could do no substantial gainful activity.

* * *

11. The claimant was under a disability as defined by the Social Security Act and Regulations for a closed period from July 2, 2002 until February 7, 2005.

At plaintiff's deposition on June 30, 2005, the following colloquy occurred:

Q. And after you received the [Sharp termination] letter and after you understood that you were no longer employed by Sharp, if I understand your testimony correctly, you did not go looking for work anywhere else from that day until early September of 2004, correct?

A. Correct.

Q. Why not?

A. In that period of time, I had undergone a couple surgeries.

Q. And because of that you were not able to work?

A. That would be correct, during that time, yes.

Plaintiff later confirmed that testimony at her deposition on January 5, 2006 in the following colloquy:

Q. I take it from your prior testimony, but tell me if I'm wrong, that you considered yourself from the day of your first surgery in January, the tail end of January of '03 until you did actually return to work toward the end of 2004 you considered yourself unable to go to work?

A. Yes.

Q. Any kind of work?

A. Yes.

Q. Anywhere?

A. Yes.

Q. That's why you didn't go to work anywhere during that period of time?

A. Correct.

Plaintiff testified further that from August 2001 until October 2002, she was taking Vicodin three to four times per day for "unbearable" pain in her back. Plaintiff stated further that she was "always in pain" that would get worse after she sat or stood for twenty minutes or more, and that she had experienced the same degree of pain in the months of April through June 2002, prior to her involuntary leave. Plaintiff confirmed that her job as a senior claims adjustment specialist required her to sit for as much as seven hours per day, to stand for approximately one hour, to walk to other work stations, and to concentrate and have good memory skills. Additionally, plaintiff confirmed that, in her application for SSDI benefits, she had indicated that, prior to leaving work, she was having difficulty sitting, standing, walking, reaching, maintaining concentration, and in attendance and punctuality.

As the result of her disabilities, plaintiff collected $12,659 in short-term disability benefits, $29,343 in long-term disability benefits, and $32,000 in SSDI benefits.

Plaintiff filed suit against Sharp in December 2003. Three years later, Sharp filed its motion for summary judgment, which was heard on May 16, 2006 and granted on June 20, 2006. In a written opinion issued by the motion judge, the judge found that LAD claims of the type alleged by plaintiff were barred as a matter of fact and as the result of the operation of judicial estoppel by plaintiff's acknowledgment in applications for short-term and long-term disability and in the hearing before the Social Security Administration hearing examiner that, in the period at issue, she was unable to work, with or without any accommodation. Additionally the judge found as a matter of fact that Sharp had reasonably accommodated plaintiff's disability by providing her with a chair that met her expectations, retaining her as an active employee in the two-month period before July 1, 2002 during which her productivity lagged because of pain, in extending plaintiff's leave until January 2003, and in facilitating the payment of short- and long-term disability payments in this period and thereafter. In connection with plaintiff's claim of retaliatory discharge, the judge found no evidence of a causal link between any protected activity claimed by plaintiff and her termination. As a final matter, the judge found no grounds for plaintiff's claim of constructive discharge, noting plaintiff's testimony that she liked her immediate supervisor, Munster, and that the two had a good relationship. The judge concluded that the fact that another Sharp employee, presumably Hark, had "brushed her off" did not provide a sufficient basis for a hostile work environment claim.

II.

In reviewing the judgment entered in this matter, we are bound by the standards set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). See Prudential Prop. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We thus must view the competent evidential materials presented in a light most favorable to plaintiff, according her all favorable inferences and affirming summary judgment only if the facts, thus viewed, foreclose liability. Brill, supra, 142 N.J. at 540. However, as Brill holds: "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. As the Court further observed:

The thrust of today's decision is to encourage trial courts not to refrain from granting summary judgment when the proper circumstances present themselves.

[Id. at 541.]

Whereas our review of the facts must comply with Brill's standards, our review of the law is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

III.

The New Jersey Law Against Discrimination forbids "any unlawful discrimination against any person because such person is or has been at any time disabled or any unlawful employment practice against such person, unless the nature and extent of the disability reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1; see also N.J.S.A. 10:5-29.1 ("[u]nless it can be clearly shown that a person's disability would prevent such person from performing a particular job, it is an unlawful employment practice to deny to an otherwise qualified person with a disability the opportunity to obtain or maintain employment . . . solely because such person is a person with a disability.") However, the Supreme Court has held that:

an employer found to have reasonably arrived at an opinion that a job applicant cannot do the job, either because the applicant is unqualified or because of a given handicap, cannot be found liable for discrimination against that applicant.

[Andersen v. Exxon Co., 89 N.J. 483, 497 (1982).]

The NJLAD permits an employer to terminate an employee who is unable to perform the job because the employee's disability in fact impedes job performance. Id. at 496. See also Raspa v. Office of Sheriff of County of Gloucester, 191 N.J. 323, 336-37 (2007). As the Court stated in Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2005):

The LAD prevents only unlawful discrimination against disabled individuals; it does not prevent the termination or change of employment of any person who "is unable to perform adequately the duties of employment, nor [does it] preclude discrimination among individuals on the basis of competence, performance, conduct or any other reasonable standards." Viscik [v. Fowler Equip. Co.], 173 N.J. [1], 13 [2002)] (quoting N.J.S.A. 10:5-2.1). Put another way, the LAD acknowledges the authority of employers to manage their own businesses. Ibid.

[Zive, supra, 182 N.J. at 446.]

To establish a prima facie case of disability discrimination in a termination context, plaintiff was required to offer evidence that (1) she was in the protected group; (2) she was performing her job at a level that met Sharp's legitimate expectations; (3) she nevertheless was fired; and (4) Sharp sought someone to perform the same work after she left. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988). In a case such as this, in which the focus is upon the second element of plaintiff's proofs, all that plaintiff must demonstrate at the outset is that she "was actually performing the job prior to the termination." Zive, supra, 182 N.J. at 454.

Our review of the record in this case satisfies us that plaintiff failed to meet this burden, because evidence demonstrated that she was not performing her job in the period before July 1, 2002, when she was required to leave Sharp and to produce a doctor's authorization prior to any return to work. Evidence established that, as the result of plaintiff's back pain and knee problems, she had utilized all of her sick leave, she left work early, she lacked sufficient concentration to clock in on a reliable basis, on occasion she was unable to sit at her desk but instead was required to lie on the floor, and she had been at work for only twenty-six hours during the past two weeks approximately one-fourth of the time required of her. Additionally, by plaintiff's own admission, she was taking multiple doses of the narcotic pain killer, Vicodin, each day. Although plaintiff's supervisor, Munster, testified in his deposition that the quality of plaintiff's work remained good, it became backlogged during the time she was missing work because of illness.

The content of plaintiff's short-term and long-term disability applications, executed after July 1, 2002, also established that plaintiff's condition was not transitory in nature, but instead, extended for approximately a two-year period to mid-2004. Although the receipt of disability benefits is not dispositive of plaintiff's disability discrimination claims under the LAD, plaintiff must proffer a sufficient explanation why her multiple sworn assertions of her inability to work, set forth in her disability applications, as well as her sworn testimony before the Social Security hearing examiner, did not reflect an accurate view of her physical condition during this period of time. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806, 119 S. Ct. 1597, 1603, 143 L. Ed. 2d 966, 977 (1999). In this regard, plaintiff's proofs fail, because she has offered no probative evidence of her capacity to work in the period from July 2002 to January 2003, and even she has admitted in deposition testimony that she was unable to work thereafter because of her back pain and multiple knee surgeries.

Plaintiff's proofs thus differ from those described in Ramer v. N.J. Transit Bus Operations, Inc., 335 N.J. Super. 304 (App. Div. 2002). In that case, the plaintiff was declared unable to work by her employer as the result of a company policy barring her employment as a bus driver when found to be more than fifty percent disabled. While contesting that determination, plaintiff sought and obtained credit disability insurance benefits to cover her car payments. We held that the receipt of such benefits did not create a judicial estoppel, because the plaintiff's statements regarding her disability were not uttered in a judicial or quasi-judicial setting and were not accepted by a court. Id. at 310-12. Further, we held that the defendant had failed to establish as a matter of law that the plaintiff's assertions of disability in connection with her insurance claim were so contradictory to her allegations in her LAD complaint of being able to perform her job that dismissal of her complaint was warranted. Id. at 313. To illustrate this point, we quoted from the opinion of the Ninth Circuit Court of Appeals in Fredenburg v. Contra Costa Dep't of Health Servs., 172 F.3d 1176 (9th Cir 1999), decided in the context of an Americans with Disabilities Act (ADA) claim, as follows:

[Plaintiff] was not playing fast and loose with, or committing fraud on, the court. Her case illustrates the problems faced by a worker in her position. Her employer concluded that she could not perform her job, and placed her on unpaid leave. She disagreed with her employer's determination and unsuccessfully challenged it. Then, without pay because of her asserted disability, she applied for temporary disability benefits and received them. What else was she to do? When those benefits were terminated because the state decided she was no longer disabled, she disagreed but was unsuccessful in challenging that determination. She then asked her employer to take her back, and the employer refused. So she brought suit under the ADA, claiming that she was able to perform her job. It is true that [plaintiff] took inconsistent positions during this saga, but her employer and the state, considered together, were not treating her consistently either.

[Ramer, supra, 335 N.J. Super. at 314 (quoting Fredenburg, supra, 172 F.3d at 1179-80 (footnote and our emphasis omitted)).]

In the present matter, plaintiff does not appear to have been "playing fast and loose" either when she sought disability benefits. However, unlike the plaintiffs in Ramer and Fredenburg, plaintiff has never demonstrated that, during the period of her disability, she was actually able to work on a consistent basis, and that her applications for disability insurance benefits constituted evidence, only, of her acceptance of a Hobson's choice. Indeed, Dr. Winters' note, upon which plaintiff appears to rely, stated that plaintiff was unable to work until August 2002, and that note was almost immediately followed by a further statement by Dr. DePhillips, confirmed at her deposition, that at the time the note was written (probably in July 2002), plaintiff was totally disabled and unable to perform any job, and that she likely would require a six-month absence. Plaintiff has offered no medical or other evidence that would suggest the doctors erred in their evaluations of her condition, that they were simply accommodating plaintiff's need for funds, or that they were employing a standard different from that of Sharp in determining employability. Thereafter, plaintiff's inability to perform the functions of any job have been conceded by her.

IV.

Plaintiff has complained that Sharp failed to accommodate her condition. However, the record discloses that, prior to July 2002, Sharp had accommodated plaintiff's request for a different chair by ordering one that met her specifications and offering her available alternatives while awaiting delivery. There is no evidence in the record that Sharp delayed in placing the order, and the fact that the chair likely arrived after July 1, 2002 does not provide, in the circumstance, evidence of lack of accommodation. In fact, at her deposition, plaintiff's physician, Dr. DePhillips, testified that she doubted whether the chair, even if provided would have remedied plaintiff's problem. The record also supports a finding that Sharp accommodated plaintiff's need for physical therapy by permitting her to leave work during the day to obtain such treatments. Additionally, it held open plaintiff's job from July 2002 to January 2003 when it appeared that plaintiff would be able to return to work by that January date, providing short-term disability benefits during the leave period, and it reasonably facilitated plaintiff's receipt of long-term disability benefits through MetLife.

We have recognized that making a reasonable accommodation for a disabled employee requires an "interactive process" in which "both the employer and employee bear responsibility for communicating with one another to 'identify the precise limitations resulting from the disability and potential reasonable accommodation that could overcome those limitations.'" Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 422 (App. Div. 2001) (quoting Smith v. Midland Brake, 180 F.3d 1154, 1171 (10th Cir. 1999) quoting 29 C.F.R. 1630.2(o)(3)). We regard such an interactive process to have been commenced by Sharp through the memorandum, dated July 16, 2002, from Gary Bonomolo, Senior Manager, Human Resources, to plaintiff, which stated:

With regard to the current status of your employment, during the past several months, you have indicated to your manager and others, including Human Resources, that you have been taking various medications for your back condition, which prescription medications are being taken at the direction of your physician. We have asked that, so that we may determine whether you are able to return to active employment at this time and perform the essential functions of your position, with or without reasonable accommodation, that you provide us with a statement from your treating physician indicating whether in fact you are able to perform the essential function[s] of your position with or without reasonable accommodation, if accommodation is needed, the nature of such accommodation and the nature of the prescription medications that you have told us you are taking. The purpose of our request for such information is so that we may determine whether you are able to return at this time and perform the essential functions of your position without posing an undue risk to the safety and health of yourself and/or others.

Please do not hesitate to contact us if you require any additional information in connection with the above. We look forward to receiving your response as soon as possible.

Significantly, the record contains no response to this memorandum, which plaintiff characterized in her appellate brief as a "generic management response to a request for an accommodation" without identifying what accommodation was requested by plaintiff at the time, other than to be absolved of Sharp's reasonable requirement that she obtain her doctor's clearance to return to work or to be granted an indefinite leave while her knee surgeries were conducted and her recovery was completed. While an employer must make all "reasonable accommodations to an employee returning from disability leave and allow the employee a reasonable time to recover from his injuries," Muller v. Exxon Research and Eng'g Co., 345 N.J. Super. 595, 608 (App. Div. 2001), certif. denied, 172 N.J. 355 (2002), the employer cannot reasonably be required to offer indefinite leave in circumstances in which an end point cannot be foreseen with any accuracy. Nusbaum v. CB Richard Ellis, Inc., 171 F. Supp. 2d 377, 388 (D.N.J. 2001); see also Walton v. Mental Health Ass'n, 168 F.3d 661, 671 (3d Cir. 1999) (affirming dismissal of ADA claim premised upon employer's failure to grant extension of unpaid leave and observing: "A blanket requirement that an employer allow such leave is beyond the scope of the ADA when the absent employee simply will not be performing the essential functions of her position."). Evidence in this case demonstrates that, after July 1, 2002, plaintiff's work backed up to the point that temporary help was required, and that such help has, of necessity, remained. In this circumstance, we find nothing unreasonable in Sharp's determination to rely on help it had retained to get the job done, rather than on plaintiff's indefinite assurance of her return.

Moreover, as we noted in Jones, in order to show that an employer failed to participate in the interactive process, a disabled employee must demonstrate that the employer knew of the disability, the employee requested accommodation or assistance, the employer did not make a good faith effort to assist the employee in seeking accommodation, and the employee could have been reasonably accommodated but for the employer's lack of good faith. 339 N.J. Super. at 423 (quoting Taylor v. Phoenixville School Dist., 184 F.3d 296, 315-16, 319-20 (3d Cir. 1999)). Here, plaintiff has failed to produce evidence of a request for assistance that was not honored. Further, she has failed to offer evidence that a reasonable accommodation could have been offered that would have rendered plaintiff employable in the period from July 2002 to her termination in January 2003.

V.

Plaintiff has also claimed that she was placed on leave and then terminated in retaliation for seeking a reasonable accommodation, filing a workers' compensation claim on June 27, 2002, and filing grievances in July and August 2002, and that such retaliation violated N.J.S.A. 10:5-12d (prohibiting retaliation for protected activities).

To set forth a prima facie case of retaliatory discharge, plaintiff was required to offer evidence that (1) she engaged in protected activity known to Sharp, (2) she was thereafter subjected to an adverse employment action, and (3) there was a causal link between the two. Jamison v. Rockaway Tp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). Once that has been established, the burden of going forward shifts to Sharp to articulate some legitimate non-retaliatory reason for the adverse action, and if such a reason has been set forth, then plaintiff must demonstrate by a preponderance of the evidence that a discriminatory intent motivated the employer's action. Ibid. This can be done by proving that the articulated reason is a pretext for the retaliation or that a discriminatory reason was more likely Sharp's motivation. Ibid. If that burden is met, then a presumption of retaliatory intent arises that Sharp can dispel by proof, by a preponderance of the evidence, that it would have taken the adverse action regardless of retaliatory intent. Id. at 445-46.

Plaintiff claims that she established the first two elements of her prima facie case by offering evidence of protected activities that were known to Sharp because she communicated them to the company, and by offering evidence of her forced withdrawal from work on July 1, 2002 and her termination, effective January 3, 2003. She argues that a causal relationship between the two is demonstrated by the temporal proximity between her protected activities and Sharp's adverse employment action. In that regard, plaintiff's request for a chair was made on May 22, 2002, more than a month before her leave was commenced; her grievances were filed in July and August 2002, during the leave period and approximately five months before her termination. However, plaintiff's application for workers' compensation benefits was filed on June 27, 2002, just shortly before the July 1 meeting, thereby establishing a temporal relationship between the two. But even if such relationship is deemed adequate to establish causation on a prima facie basis, see Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997) (limiting the use, if at all, of temporal relationship to such very short time spans), abrogated on other grounds, Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), plaintiff cannot overcome Sharp's proffered explanation that it sent her home because of safety concerns and would have permitted her return to the workforce if medical evidence of her capacity to safely travel and perform her employment duties had been provided, which it was not.

VI.

As a final matter, we reject without substantive discussion plaintiff's claim that she was constructively discharged, noting in this regard the good relationship that she maintained with her supervisors both before and after her leave commenced and the incidental nature of her contact with Hark. R. 2:11-3(e)(1)(A) and (E).

In conclusion, we perceive nothing in the record in this matter that would suggest to us facts other than those stated by plaintiff in her disability applications; namely, that she was unable to work for a period of two years as the result of her orthopedic disability and medications required to manage the resulting pain. In these circumstances, we reject plaintiff's position that Sharp's decision to place her on involuntary leave a condition that plaintiff could have ended upon submission of a doctor's note stating that she was fit to work and drive and, six months later, to terminate her employment was a violation of the NJLAD.

 
Accordingly, we affirm the entry of summary judgment in this matter.

A check request form lists an invoice date of July 17, 2002 and a purchase price of $787.11. Plaintiff claimed that Sharp employee Kenney testified that the chair was, in fact, placed in a supervisor's office and draws the inference that it was not given to her. However, the record indicates that Kenney testified only that he had seen the chair in that office and that he did not recall whether it was before or after plaintiff was placed on leave on July 1, 2002.

That plaintiff had obtained the required doctor's evaluation was not noted by her in her July 8, 2002 grievance letter.

Dr. McIlveen's certification indicates that he had advised plaintiff to return to work, and that she would try to do so on February 1, 2003. That was rendered infeasible by plaintiff's knee surgery on January 31.

The record discloses that plaintiff fell immediately after her second knee surgery, and required a further operation.

At that time, plaintiff became employed by Metropolitan Trucking Company in its dispatch department. Prior to that, plaintiff had worked for a short period of time on a part-time basis of ten to twelve hours per week from September to early December 2004.

We address plaintiff's discrimination and disparate treatment arguments together, finding no substantive difference between them.

In construing the NJLAD, we have frequently considered analogous federal precedent. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 600 (1993) (acknowledging this practice in connection with federal Title VII precedent).

In contrast, in this matter, at least some of plaintiff's statements were uttered in the quasi-judicial setting of a Social Security Administration disability hearing, and were relied upon by the hearing examiner in making his decision to recommend an award of SSDI benefits. Thus, judicial estoppel can be found. See Bray v. Cape May City Zoning Bd. of Adjustment, 378 N.J. Super. 160, 166 (App. Div. 2005) (recognizing applicability of doctrine to administrative proceedings). Nonetheless, we agree with the motion judge that a decision that plaintiff has failed to present evidence of her ability to work equally can be premised upon the factual record presented.

In plaintiff's grievance of July 8, 2002, she stated in that she had been able to work for the rest of July 1, July 2 and "this day." However, there is no evidence in the record that would suggest that plaintiff was physically fit to maintain her employment thereafter. Plaintiff has also noted that her supervisor acknowledged that the quality of her work remained good in the period prior to July 2002. However, she must concede that she was not present much of the time during this period.

Plaintiff's reliance on Turner v. Hershey Chocolate, USA, 440 F.3d 604 (3d Cir. 2006) is likewise misplaced, because in that case, plaintiff produced a medical certification that attested to her inability to perform one specific job function that the court construed as a request for accommodation. Id. at 606-07. Here, plaintiff has failed to identify anything she was capable of doing.

Plaintiff also argues that termination of her employment occurred in proximity to the cessation of the short-term disability benefits offered by Sharp. However, plaintiff does not suggest a retaliatory motive here, but merely an alleged and unproven practice to which plaintiff objects.

(continued)

(continued)

31

A-6105-05T5

 

March 14, 2008