DIANE POTASH v. HUNTERDON MEDICAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1133-08T31133-08T3

DIANE POTASH,

Plaintiff-Appellant,

v.

HUNTERDON MEDICAL CENTER,

Defendant-Respondent.

______________________________

 

Argued June 2, 2009 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Hunterdon County, Law Division, Docket No. L-563-06.

Thomas A. McKinney argued the cause for appellant (Castronovo & McKinney, LLC, attorneys; Paul Castronovo, on the brief).

Pamela J. Moore argued the cause for respondent (McCarter & English, LLP, attorneys; Ms. Moore, of counsel; Christopher S. Mayer, on the brief).

PER CURIAM

Plaintiff Diane Potash appeals from the September 26, 2008 order granting defendant Hunterdon Medical Center summary judgment. We affirm.

On October 24, 2006, plaintiff filed a complaint against defendant alleging failure to provide reasonable accommodation, disability and perceived disability discrimination, and retaliation claims in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. In August 2008, defendant moved for summary judgment. On September 26, 2008, the trial court granted defendant's motion.

I.

From October 10, 1994 through October 12, 2005, plaintiff worked as a nurse in defendant's intensive care unit [ICU]. During the term of plaintiff's employment, defendant had in place a leave of absence (LOA) policy to assist employees in balancing multiple demands placed on their lives, including those caused by medical conditions or illnesses. Defendant's Human Resources and Development Policy and Procedure Manual provides in part that: employees may take medical LOAs for periods of time not to exceed six months; LOAs must be requested thirty days in advance of the effective date; employees must provide defendant with an anticipated return date; and "[a]n indefinite return to work date will cause denial of the leave. If necessary, an estimated return date may be provided and updated as appropriate." The policy manual further provides that:

12. Extension of Leave

An employee[,] who is unable to return to work at the expected conclusion of a leave, must request an extension of the leave from his/her department manager at lease five (5) days prior to the scheduled return date by completing a new Leave of Absence Request form for approval by department manager. If the extension request is due to the employee's own serious health condition or that of a family member, the employee must submit appropriate documentation from the attending physician.

As with the initial leave period, employees returning from an extended leave will be reinstated to their same or equivalent level position, provided they return within 12 weeks (except in cases where the combination of state and federal law allows for more than 12 weeks); after 12 weeks the position may be posted and filled. If the employee is able to return to work at a later date, he/she may apply and be considered for any posted position for which he/she is qualified. The employee is subject to any layoff, reduction in workforce, change in working conditions, etc., that would otherwise have occurred if the employee was not on leave.

. . . .

An employee who fails to return to work as scheduled may be deemed to have voluntarily resigned and be required to reimburse Hunterdon Medical Center for any benefits paid on behalf of the employee during [his/her] leave.

In October 2005, plaintiff suffered from a non-work related back injury. On October 12, 2005, plaintiff submitted to defendant's Human Resource and Development Department (HRDD) a written request for a medical LOA, effective that day, indicating that she expected to return to work on December 19, 2005. The form provided in part that "[i]f my request for leave is granted, I have a right to take up to 12 weeks of leave in a 12[-]month period . . . ." The form further provided "I will keep Occupational Health Services and my supervisor abreast of the status of my leave at least every 30 days, including my intention to return to work or resume my normal work schedule. I understand that if I do not return within the time period allowed by policy, the medical center may post my position." Lastly, the form provided, "[u]nless I submit and receive approval for an extension of leave, my failure to report to the [HRDD] by the leave expiration shall be deemed my voluntary resignation."

On October 28, 2005, the HRDD acknowledged receipt of plaintiff's request, informed her that she may be eligible for the LOA, and requested that she provide a medical certification regarding to her health condition. On November 18, 2005, plaintiff submitted a medical certification from Deborah McLanahan, a certified registered nurse practitioner of Cornerstone Family Practice, advising that plaintiff had been treated in her office on October 12 and 25, 2005, and was "[c]ontinuing to have lower back pain [with] no improvement." The certification further stated that plaintiff had undergone an MRI that disclosed a herniated disc, and that plaintiff was referred to an "orthopedist/neurosurgeon" for further evaluation.

On November 23, 2005, the HRDD advised plaintiff that her medical LOA had been approved through December 19, 2005. The letter also informed plaintiff that "[i]f your return to work date of 12/19/05 changes, you must notify the [HRDD] within 15 days and you must complete a new request for leave form (enclosed)."

On January 10, 2006, plaintiff submitted a LOA extension form to HRDD. The form indicated that plaintiff expected to return to work on February 1, 2006. Plaintiff supported her extension application with a second certification from McLanahan indicating that plaintiff's duration of incapacity was "unknown" and that plaintiff was scheduled to see a neurosurgeon on January 25, 2006.

On January 10, 2006, HRDD sent plaintiff a letter acknowledging receipt of her request for an extension of the medical LOA. The letter informed plaintiff:

Your leave is not covered under the FMLA job protected leave based on the fact that you have exhausted your 12 weeks of [Family Medical Leave Act] leave in the past rolling calendar year. Our records show that Hunterdon Medical Center granted you a medical leave from 10/12/05 through the present.

The requirements of 1 year of employment and 1,000 hours in the previous 12 months enable an employee to take up to 12 weeks of leave with the guarantee of employment in the same position upon return. Eligible employees are entitled to twelve- (12) week's leave within a rolling twelve- (12) month period.

Hunterdon Healthcare System has the option of terminating your employment and posting your position depending on the needs of your department. If this should happen, you would need to apply for a position through Human Resources when your doctor returns you to full duty.

[(Emphasis omitted).]

Plaintiff neither returned to work on February 1, 2006, nor submitted a request for another extension of her LOA. However, on February 20, 2006, plaintiff executed a New Jersey Department of Labor and Workforce Development disability claim form, certifying that she remained disabled as of that date.

On February 28, 2008, plaintiff's supervisor, Marjorie Whelan, submitted to the HRDD a "personnel status form" indicating that plaintiff would be "separated" from employment at the end of the next payroll period (March 11, 2006) because her LOA had expired; the form also provided that plaintiff was eligible for rehire. On March 16, 2006, Laura Penman of the HRDD sent plaintiff a letter informing her that, because "[y]our absence has created a hardship for the Intensive Care Unit," her position had been posted and her employment terminated. The letter further provided that, "[i]f and when you are able to return to work, you may log onto our website for any available employment opportunities for which you may be qualified." Plaintiff never sought reemployment.

On October 24, 2006, plaintiff filed her complaint alleging failure to accommodate, disability and perceived disability discrimination, and retaliation under the LAD. On September 26, 2008, the trial court entered an order, supported by an oral decision, granting summary judgment. The court determined that defendant was not obligated to accommodate plaintiff's medical LOA any further because of her indefinite return date after February 1, 2006. In so reasoning, the court stated:

[Plaintiff] basically left the hospital at that point in a state of uncertainty as to whether and when[,] she ever might be able to return to work. And these discussions did not amount to - even if true, which I take it they are - do not amount to a statement, a formal request, for an extension of the leave, which the plaintiff was familiar with, having done it twice before, nor do they provide any particular time frame for return to work.

. . . .

{I]t seems to me that whether it is particular in this case or not, at some point the employee has to say this is the leave I want and this is when I can come back.

II.

On appeal, plaintiff does not challenge the trial court's dismissal of her disability and perceived disability discrimination and retaliation claims. Rather, plaintiff only appeals from that part of the trial court's decision dismissing her failure-to-accommodate claim. Plaintiff argues that the trial court: 1) wrongly resolved contradicting evidence on issues of material fact by making an improper credibility determination that plaintiff was not able to return to work; 2) erroneously determined that plaintiff was required to request a transfer as a reasonable disability accommodation; and 3) ignored N.J.A.C. 13:13-2.5(b) "by holding that plaintiff was unable to perform her job because she was on a leave of absence."

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2009). We employ the same standard when reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

We have considered plaintiff's arguments in light of the record and applicable law and affirm substantially for the reasons expressed by Judge Buchsbaum in his oral decision of September 26, 2008. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

Plaintiff argues that the trial court improperly weighed contradictory evidence on the motion for summary judgment concerning whether she was physically able to return to work when defendant terminated her from employment. We disagree.

Plaintiff alleged in her complaint that defendant violated the LAD by failing to provide her a reasonable accommodation for her medical disability, that is, by failing to continue her LOA through April 6, 2006, the date she asserts she was medically cleared to return to work. To prove her claim of failure to accommodate, plaintiff must show that she has a disability; she is "qualified to perform the essential functions of the job, with or without accommodation"; and she "suffered an adverse employment action because of the handicap." Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App. Div. 2001); see also Seiden v. Marina Assoc., 315 N.J. Super. 451, 465-66 (Law Div. 1998). "Some courts have held that leaves of absence and allowance of time-off for medical care or treatment may constitute reasonable accommodations for disability-related absences." Svarnas v. AT&T Commc'ns, 326 N.J. Super. 59, 79 (App. Div. 1999). However, "an indefinite unpaid leave is not a reasonable accommodation, especially where the employee fails to present evidence of the expected duration of [his or] her impairment." Ibid. But whether "a leave request is reasonable will turn on the facts of each particular case." Ibid.

Defendant did not dispute that plaintiff could meet the first and third prongs of the Bosshard standard. Rather, defendant challenged plaintiff in meeting the second prong, that is, she was otherwise able to perform the essential functions of her job as an ICU nurse during the relevant period complained of.

Defendant moved to dismiss plaintiff's failure-to-accommodate claim on the basis that: 1) plaintiff had failed to present evidence of the expected duration of her medical disability and under those circumstances, defendant was not required to provide her with an indefinite unpaid LOA; and 2) plaintiff failed to present evidence that she was able to perform the essential functions of an ICU nurse, with or without a reasonable accommodation during the relevant period of February 1 through April 6, 2006.

In opposing defendant's motion, plaintiff cited to her deposition testimony that she had informed her supervisor in March 2006 of her intention to return to work on April 6, 2006. In support of her contention that she had been cleared to return to work on that date, plaintiff referenced: a note from Dr. Rajesh Rao, her treating orthopedic physician, dated March 7, 2006; her New Jersey Department of Labor and Workforce Development temporary disability insurance application, signed by McLanahan on February 23, 2006; and a physician's certification from Dr. Richard Lehman dated March 10, 2006. Plaintiff contends that, although she produced the aforementioned physician's notes or certifications evidencing that she had been cleared to return to work no later than April 6, 2006, the trial court improperly relied on other contradictory doctors' notes dated after her termination of employment.

The court determined that plaintiff's deposition testimony was not supported by her medical records, but in fact, was contradicted by them. For example, the temporary disability insurance application signed by McLanahan on February 23, 2006, and Dr. Lehman's certification of March 10, 2006, did not affirmatively state that plaintiff was cleared to return to work in April, but only estimated that she would recover as of April 3, and April 1, 2006, respectively.

Dr. Rao's note of March 7, 2006, did not state that plaintiff could return to work on April 6, 2006, but rather that she would remain out of work for the next four weeks and then he "would consider [her] return[ing] to work if [there] is no progression of her symptoms" at a follow-up visit at that time. Plaintiff did not follow up in her treatment with Dr. Rao as suggested in his note of March 7, 2006.

Instead, plaintiff presented herself to McLanahan on April 5, 2006. McLanahan's notes belie plaintiff's assertion that she was able to return to work the next day. "[Patient] still unable to work due to the pain. Has some improvement with [physical therapy], but not much. Still using Percocet regularly. Encouraged [patient] to [follow up] with neurosurgeon about other treatment options, possibly epidural injections versus surgical intervention. Continue Percocet and physical therapy presently." McLanahan's record also indicates that plaintiff informed her of plaintiff's intention that she intended to apply for a cardiopulmonary position at defendant's facility "which will be easier on her back." Plaintiff, however, never applied for the position.

Plaintiff next saw McLanahan twelve days later on April 17, 2006. McLanahan's records indicate that plaintiff told her that, although she had some improvement with physical therapy, she was still not able to work due to the pain and was still taking Percocet. Plaintiff again provided McLanahan with a similar medical history on April 27, 2006.

On April 26, 2006, plaintiff telephoned McLanahan and left a message stating that "she saw [a] specialist and was told that she needs another 6 weeks of [physical therapy]. [The specialist] also states that because she tore through the disk [at] L4 - 5 that it will take at least 6 months [to] fully heal." McLanahan saw plaintiff again on June 26, 2006. McLanahan indicated that she was going to request another MRI "because [plaintiff] is not getting much better." The record also provides "[plaintiff] [s]till [cannot] lift anything or it really aggravates the back. Not back to work. Taking Percocet regularly."

In the interim, on April 24, 2006, plaintiff returned for a follow-up visit with Dr. Rao. In completing a questionnaire for the doctor, plaintiff indicated that on a scale of 1 to 100, with 100 being the worst pain possible, the pain intensity in her lower back was between 70 and 80. Rao recommended additional physical therapy. On July 3, 2006, Rao's treatment summary of plaintiff indicates that she was "planning to get into teaching and avoid going back to ICU nursing." Also in July 2006, Rao recommended that plaintiff "consider a less strenuous job than ICU nursing."

 
The trial court properly granted summary judgment to defendant, determining that plaintiff had failed to provide evidence raising a material issue of fact as to her ability to perform the essential functions of her job with or without accommodation. We conclude that the evidence before the trial court was so one-sided that defendant had to prevail as a matter of law. Brill, supra, 142 N.J. at 533. The record establishes that plaintiff was not able to perform the duties of her job function as an ICU nurse when terminated from employment. In fact, the record indicates that she was not able to perform such duties for a long period of time after she was separated. Because the LAD permits an employer to terminate an employee who is unable to perform the job because the employee's disability impedes his or her job performance, we affirm. Andersen v. Exxon Co. U.S.A., 89 N.J. 483, 496 (1982).

Affirmed.

In her appellate brief, plaintiff states that she "took this authorized medical LOA to allow the annular tears of her lumbar disk in her lower back to heal," explaining that the "annular tears of her disks inflicted brutal pain and rendered her disabled during her LOA."

(continued)

(continued)

14

A-1133-08T3

July 30, 2009