GERALDO SMITH v. CHESTNUT SQUARE APARTMENTS, LLC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1855-08T31855-08T3

GERALDO SMITH,

Plaintiff-Appellant/

Cross-Respondent,

v.

CHESTNUT SQUARE APARTMENTS, LLC

and JAMIL AKHTAR,

Defendants-Respondents/

Cross-Appellants.

__________________________________

 

Submitted: December 2, 2009 - Decided:

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-976-05.

Richard M. Pescatore, P.C., attorney for appellant/cross-respondent.

Kavanagh, Kavanagh & DiLazzero, LLC, attorneys for respondents/cross-appellants (Jeffrey A. DiLazzero, on the brief).

PER CURIAM

Plaintiff Geraldo Smith appeals from summary judgment dismissal of his complaint against his employer and its principal asserting discrimination and retaliation in violation of the New Jersey Law Against Discrimination (NJLAD) and the New Jersey Workers' Compensation Act, and claiming intentional infliction of emotional distress. Defendants filed a cross appeal, challenging the court's ruling that plaintiff was "disabled/handicapped" within the meaning of the NJLAD. We affirm.

Plaintiff held a non-union, at-will position as a maintenance man at defendant's apartment complex for a nine-month period. He had no negative performance evaluations during that time. It is also apparently undisputed that plaintiff experienced back pain and occasionally wore a back brace. According to plaintiff, he injured his back on Friday, October l0, 2003, while carrying a refrigerator down a flight of stairs at an apartment. He reported the injury to his supervisor on Sunday. On Monday, plaintiff saw a doctor, and in the early afternoon he brought his supervisor a doctor's note requesting he be excused from work for two weeks.

According to defendant, Jamil Akhtar, that same morning he had inspected a flooring job done by plaintiff the prior week and found it unsatisfactory. He therefore had his staff prepare a one-sentence letter terminating plaintiff's employment as of that day. He claimed he was unaware of plaintiff's injury when he ordered the termination.

On September 15, 2005, plaintiff filed a two count complaint seeking damages. In count one, plaintiff alleged he suffered a work-related injury that caused a physical disability or handicap requiring treatment and reasonable accommodation, and was unlawfully discriminated, retaliated against, and terminated in violation of the NJLAD and the New Jersey Workers' Compensation Act. In count two, plaintiff incorporated the same facts to assert a claim for intentional infliction of emotional distress.

Following oral argument on November 7, 2008, the court granted plaintiff's motion for protected "handicapped" status under the NJLAD and granted defendants' cross-motion for summary judgment dismissing plaintiff's complaint. Judge Michael Fisher found that for purposes of the summary judgment motion, plaintiff satisfied the first and third elements necessary to succeed in an accommodation claim under the NJLAD, i.e., that he was disabled under the statute and suffered an adverse employment action as a result of his disability. Based on plaintiff's own statements, however, the judge found he failed to make a prima facie showing of the second element, namely, that "he was qualified to perform the essential functions of the position of employment." The court also concluded that plaintiff failed to provide any evidence to support the allegation that he was fired in retaliation for filing a workers' compensation claim for the refrigerator incident, noting that plaintiff did not file such claim until five months later. This appeal and cross-appeal ensued.

On appeal, plaintiff argues that summary judgment was inappropriate because there were disputed factual issues as to whether he could return to his job, whether there was light duty available, or whether a brief time off with appropriate treatment would have been a reasonable accommodation. Plaintiff further argues that the motion judge's analysis regarding defendants' failure to accommodate was "completely inappropriate" in light of defendants' denial, from the outset, of knowledge of plaintiff's injury; lack of any discussion between the parties concerning the issue of accommodation; and clear evidence of termination of plaintiff based solely on the pretext of poor work performance. Thus, plaintiff contends that once defendants engaged in the unlawful adverse action of terminating him based solely on his handicap, they should be foreclosed or otherwise barred from arguing that "plaintiff failed to satisfy 'his burden' that he could have performed the essential functions of his job."

We review the trial court's grant of summary judgment de novo, employing the same legal standard used by the motion judge: whether there are material facts in dispute and, if not, whether the undisputed facts viewed most favorably to the non-moving party entitle the moving party to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

Plaintiff's legal argument is incorrect. The NJLAD prohibits employment discrimination based on disability. N.J.S.A. 10:5-4.1 to -29.1; Potente v. County of Hudson, l87 N.J. l03, 110 (2006). Reasonable accommodation of a disability is required of employers by regulation promulgated under the NJLAD, N.J.A.C. l3:13-2.5, and by cases interpreting the NJLAD. See, e.g., Potente, supra, 187 N.J. at ll0; Viscik v. Fowler Equip. Co., 173 N.J. 1, 11 (2002); Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 9l (App. Div. 200l). Failure to accommodate represents one category of discrimination under the NJLAD, the other being disparate treatment. Victor v. State of New Jersey, 401 N.J. Super. 596, 610 (App. Div. 2008), certif. granted, 199 N.J. 542 (2009).

The burden of proving discrimination "remains with the employee at all times." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). In a reasonable accommodation case, a plaintiff first must demonstrate the following three prima facie elements required in any LAD disability discrimination claim, namely:

(1) plaintiff was disabled within the meaning of the statute; (2) plaintiff was qualified to perform the essential functions of the position of employment; and (3) plaintiff suffered an adverse employment action because of the disability.[] Each of these elements must be shown, including proof of some material adverse change in the terms and conditions of employment.

[Victor, supra, 401 N.J. Super. at 614 (citing Jones v. School Dist. of Philadelphia, l 98 F.3d 403, 4ll (3d Cir. l999)).]

In this case, the trial court assumed for purposes of the summary judgment motion that plaintiff satisfied the first and third elements required for a prima facie case of disability discrimination. Thus, the only disputed element is the second one, whether plaintiff was qualified to perform his job as a maintenance man had defendants provided reasonable accommodation.

We have interpreted the second prima facie element to mean that the employee could perform the essential functions of the job with or without reasonable accommodation. Soules v. Mount Holiness Mem'l Park, 354 N.J. Super. 569, 576 (App. Div. 2002); Svarnas v. AT & T Commun'ns, 326 N.J. Super. 59, 74-76 (App. Div. l999). In Tynan v. Vicinage l3 of the Superior Court, 35l N.J. Super. 385, 400-0l (App. Div. 2002), we summarized the required proofs pertaining to the interactive process and reasonable accommodation, holding that a plaintiff must still present evidence that the employer did not act in good faith and that the employee's disability could have been reasonably accommodated.

The trial court correctly found that plaintiff's own admissions made it impossible for him to prove that he would be able to continue working in the same position, with or without accommodation. In fact, it appears from the record that plaintiff was unable to resume working in any capacity. Plaintiff was a maintenance man at an apartment complex. Based on the scant record presented, the court described plaintiff's duties as follows:

[I]t's clear he was a laborer and it was clear that he . . . did grunt work, so to speak. It's a small operation. This is not a prison[] where there were limited duty assignments available.

In fact, the court noted that "[n]obody's even tried to make the argument that there were . . . limited duty assignments available for any significant period of time."

Giving plaintiff all favorable inferences, there is still no doubt that at all times since October l3, 2003, the date of plaintiff's alleged injury, he could not perform the essential functions of his job with or without accommodation. Although plaintiff testified in depositions on June 6, 2006 that he would have been able to return to work on October 27, 2003 pursuant to the two-week note given by the doctor, despite lingering pain from his injury, he promptly clarified that the doctors told him he "couldn't do the job that [he] used to do before [and] that if [he] will continue doing it, [he] could be left in a wheelchair." Moreover, plaintiff's one unsubstantiated statement about the ability to return to work was further undermined by a second doctor's note received on October 28, 2003, noting that plaintiff was still suffering from lumbar sciatica and needed to be excused for an additional two weeks.

Plaintiff also gave the following answers in response to questions by defendants' attorney clearly acknowledging that he could no longer do the work he did at the apartment complex and that he could not and had not pursued work elsewhere:

Q. Have you been employed since the time you worked for Chestnut Square Apartments?

A. No.

Q. Why not?

A. Because I can't. I'm not well.

Q. With your back injury, are you able to perform your duties - the same duties that you performed while an employee of Chestnut Square Apartments?

A. Never more.

Q. Can you tell me what you did specifically while you were employed at Chestnut Hill Apartments?

A. Plumbing work, carpentry, carry refrigerators, carry air conditioners, and paint, paint, paint.

Q. Are you able to do any of those jobs now?

A. No.

Q. At any time since October of 2003 until now, have you been able to perform any of those job duties?

A. No.

Plaintiff further responded that because of his injury, he was unable to engage in any other type of gainful employment, specifically testifying:

Q: Have you made any effort whatsoever to get a job since you've been fired?

A. No.

Q. Have you made any effort to enroll in school or to obtain any sort of training?

A. No.

Q. Do you ever plan on working again?

A. No.

. . . .

Q. Was there any time between your getting injured . . . on October l0th of 2003, and today that . . . your injury did not prevent you from working?

A. I can't work because . . . of my injuries, my pain. I walk and I feel pain.

Q. Is it your testimony here today that you have not been able to work since October l0th, 2003?

[Objection to the form by Plaintiff's attorney]

A. Yes.

The deposition evidence is "so one-sided" that plaintiff's back injury precluded him from working at all, let alone performing the essential functions of his job as a maintenance man at defendant's apartment complex, and thus there is no reasonable accommodation that defendants could have provided him. See Brill, supra, 142 N.J. at 540. Accordingly, plaintiff's NJLAD failure to accommodate claim must fail as a matter of law.

Plaintiff asserts no factual or legal basis to support his claim for retaliation under the NJLAD as the result of having sought workers' compensation benefits or his claim for intentional infliction of emotional distress. Accordingly, summary judgment dismissal of these claims was appropriate. R. 2:11-3(e)(l)(E).

In view of our affirmance of the trial court's dismissal of plaintiff's complaint, we need not address defendants' cross-appeal.

Affirmed.

The record reflects that plaintiff filed a workers' compensation claim for this incident, which was settled on October l8, 2006. Defendant's compensation carrier's first entry is dated April 29, 2004. The trial judge noted on the record that there was only "one sentence or part of a sentence [in plaintiff's brief] that dealt with the worker's compensation aspect of this case . . . ."

The function of the fourth element of a prima facie case of discrimination, i.e., that the employer sought someone else to perform the same work after the plaintiff was removed from the position, "is to allow an inference to be drawn of disparate treatment," so it is not necessary to satisfy plaintiff's initial burden of proof in a reasonable accommodation claim. Victor, supra, 401 N.J. Super. at 610. See also Bosshard, supra, 345 N.J. Super. at 9l.

This was in the context of the discussion of Raspa v. Office of the Sheriff of Gloucester, 191 N.J. 323 (2007).

(continued)

(continued)

11

A-1855-08T3

December 21, 2009