JENNIFER MARAZZO v. MERCER COUNTY BOARD OF SOCIAL SERVICES
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5885-08T1
JENNIFER MARAZZO,
Plaintiff-Appellant,
v.
MERCER COUNTY BOARD OF
SOCIAL SERVICES,
Defendant-Respondent.
_____________________________
Argued April 20, 2010 - Decided May 13, 2010
Before Judges Fuentes and Gilroy.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-1903-07.
Steven Blader argued the cause for appellant
(Szaferman, Lakind, Blumstein & Blader,
P.C., attorneys; Mr. Blader of counsel and
on the brief; Thomas J. Manzo, on the brief).
Kristine Walsh argued the cause for
respondent (Ms. Walsh, and Joshua Markowitz,
attorneys; Mr. Markowitz, of counsel; Ms.
Walsh, on the brief).
PER CURIAM
Plaintiff Jennifer Marazzo appeals from the July 24, 2009
order that granted summary judgment to defendant Mercer County
Board of Social Services. We reverse.
Plaintiff is twenty-nine years old and has been treated for
depression since the age of fifteen. On February 22, 2004,
plaintiff began employment with defendant as a social worker.
In August 2005, plaintiff suffered a depressive relapse, causing
her to be hospitalized and to take an extended unpaid leave of
absence from work. In January 2007, plaintiff returned to work,
having been prescribed different types and dosages of
psychotropic medications to control her depression.
On returning to employment, plaintiff worked as a
protective services investigator, and her regular hours of
employment were fixed by union contract as commencing at 8:30
a.m. and ending 4:30 p.m., Monday through Friday each week;
except on Tuesdays when defendant's offices remained open until
8:30 p.m. On Tuesdays, employees were provided the option of
working 8:30 a.m. to 4:30 p.m., 12:30 p.m. to 8:30 p.m., or 8:30
a.m. to 8:30 p.m.
Although required to commence work at 8:30 a.m. four days
per week, plaintiff was not able to consistently commence
employment as scheduled because the prescribed medications she
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took at night caused her to fall into a comatose-like sleep from
which she had difficulty awakening in the morning. Even after
she was awoken by her mother, it would take plaintiff fifteen to
thirty minutes additional time to fully function. However, once
at work, she was able to fully perform all of her normal job
duties.
Because of her tardiness, plaintiff received disciplinary
notices from defendant. Plaintiff requested that defendant
allow her to report to work fifteen to thirty minutes late each
morning, with plaintiff making up the lost time by working
through her lunch hours and break times, or working on Tuesday
evenings when the office remained open until 8:30 p.m. In
support of her request, plaintiff submitted a letter dated April
25, 2007, from her treating psychiatrist, Dr. Charles F.
Martinson, confirming that the accommodation request was for
medical reasons. Plaintiff's request was reviewed by a Mercer
County physician who recommended that plaintiff remain on full-
time duty, but that defendant accommodate plaintiff by allowing
her to "[a]rrive fifteen - thirty minutes late in the morning to
be made up at the end of the day." Nevertheless, on June 7,
2007, defendant's Chief of Administrative Services denied
plaintiff's accommodation request.
A-5885-08T1
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On advice of her psychiatrist, plaintiff was again placed
on leave of absence on July 19, 2007, and never returned to work
with defendant. Defendant gained new employment on March 16,
2008, but in doing so, suffered a $9,000 reduction in salary.
On July 30, 2007, plaintiff filed a complaint against
defendant alleging disability discrimination in violation of the
New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
-49, by failing to reasonably accommodate plaintiff's
disability. In June 2009, defendant filed a motion for summary
judgment. Plaintiff opposed, and in so doing, not only
submitted a copy of Dr. Martinson's April 25, 2007 letter and
defendant's reasonable accommodation request disposition form,
but also her affidavit and a report from plaintiff's examining
psychiatrist, Dr. Martin Weinapple. In his report, Dr.
Weinapple recommended against plaintiff changing her medication
regimen:
In reviewing Dr. Martinson's notes about Ms.
Marazzo's medication, he refers to possible
side effects to these medications with which
she is being treated. He states that, as
noted in the body of my report, that this is
one of the reasons why he recommends an
accommodation for her in the workplace. It
would follow necessarily that the [regimen],
structure and scheduling of these
medications, therefore, are important in
helping Ms. Marazzo stabilize her moods. It
would be unreasonable, in my opinion, with a
high degree of medical probability, that
this particular structure should be changed
A-5885-08T1
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or tampered with in any way. It appears
that Dr. Martinson has established a
specific schedule. Ms. Marazzo is a very
meticulous person who likes to adhere to
specific structure and wants to keep
everything in place and it would be my
opinion that changing this in any way, shape
or form would further undermine the
treatment that she is progressing with under
Dr. Martinson's care.
It is somewhat unusual for those kinds of
changes to take place, I must say.
Generally, psychotropics are prescribed on
specific schedules. For example, [8:00
a.m.] and [8:00 p.m.] or whatever the
structure is, such as 8:00, 12:00, 4:00 etc.
and the patients after time get used to this
and any changes in this structure can lead
to difficulties such as missing doses. To
me, the accommodation would be more feasible
from the workplace's point of view than it
would be to change the patient's structure
and point of view as she is beginning to
show progress with the current medication
[regimen] that she was on.
In her affidavit, plaintiff stated in relevant part:
I functioned well on my return to work, but
because of the change in the types and
dosages of the medications that I was
taking, it was impossible for me to
consistently start work at the Board at 8:30
a.m.
Arriving to work at 8:30 a.m. for me is not
simply setting my alarm clock at the
appropriate time to leave enough time to
shower, dress and drive to work. The side
effects from the medications that I must
take to control my depression have a
profound effect upon my ability to take the
step from sleep to full function.
A-5885-08T1
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I had great difficulty falling asleep. Once
I was able to fall asleep, I fell into a
very deep sleep which made me unable to hear
any of my alarms or respond to external
stimuli without assistance. I slept so
deeply that I would not wake when I had to
urinate and consequently needed to sleep
with a bed pad.
My morning dose had to be taken prior to
starting work, and the evening dose could
not be taken any sooner than 12 hours later.
The majority of the medications which caused
drowsiness were prescribed to be taken in
the evening so that I could better function
during the day. It was not possible for me
to alter the times I took my medication
without compromising my ability to
participate in various activities of daily
living such as therapy and exercise. Even
if it [] were possible to change the
medication regimen, the side effects would
not dissipate overnight. It would
potentially take several weeks before I
would feel a change. I know this from
personal experience with the many medication
changes that have been prescribed for me,
since my initial diagnosis.
On July 24, 2009, the trial court granted summary judgment
determining that plaintiff's claim was meritless. Although the
court acknowledged that plaintiff suffers from depression, it
found plaintiff had failed to explain why she could not take her
medications one half earlier in the evenings and wake up one
half earlier in the mornings, thus allowing her to arrive on
time as required by her work schedule.
We have a woman who has an issue
unquestionably so. She takes medication for
it unquestionably so. She's on a given
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regime unquestionably so. She comes to work
15 or 30 minutes late every day. She's
asking for an accommodation because of her
medicine schedule that her workplace
accommodate her as opposed to taking the
medication 30 minutes sooner and there's
nothing in the record to suggest that that
can't be done other than the fact that she's
used to the regime that she is undertaking
now. But, that's as far as it goes.
....
I don't know what a jury would do with this
case. What kind of fact do they have to
deal with? Ultimately, really they have
none. The entire matter as it's presented
to the [c]ourt is something that's within
her control. She created the situation.
It's not a situation she has physical issues
that she cannot deal with and have to be
accommodated.
This is an issue that's created solely
because she and her doctors have decided
that she's going to take medication at a
given time and there is nothing that
suggests you can't take it 30 minutes sooner
and that would obviate the entire position.
I just never, ever seen anything like it and
I don't think . . . that there's any
decision of law in this State that supports
the position taken by the plaintiff.
Consequently, the application is granted
....
On appeal, plaintiff argues that the trial court
erroneously granted summary judgment because genuine issues of
material fact existed in the record. Plaintiff contends that
the trial court "effectively disregarded an abundance of expert-
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supported evidence confirming plaintiff's psychological
disability and the necessity of accommodation."
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). "An
issue of fact is genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on
the motion, together with all legitimate inferences therefrom
favoring the non-moving party, would require submission of the
issue to the trier of fact." R. 4:46-2(c).
In determining whether there is a genuine issue of material
fact for summary judgment purposes, the trial court must
ascertain "what reasonable conclusions a rational jury can draw
Brill, supra,
142 N.J. at 535. To make the
from the evidence."
determination, the judge must accept as true all evidence that
supports the position of the party defending against the motion
and accord him or her the benefit of all legitimate inferences
which can be deduced therefrom. Ibid. If reasonable minds
could differ, the motion must be denied. Ibid. The "essence of
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the inquiry" is "'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.'" Id.
at 536 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,
251-52,
106 S. Ct. 2505, 2512,
91 L. Ed. 2d 202, 214 (1986)).
The LAD protects an individual suffering from a non-
physical disability in the workplace. N.J.S.A. 10:5-4.1;
N.J.S.A. 10:5-5(q); Viscik v. Fowler Equip. Co.,
173 N.J. 1, 15-
16 (2002). To prove a non-physical disability, "a plaintiff
must prove that he or she is suffering (1) from any mental,
psychological or developmental disability (2) resulting from an
anatomical, psychological, physiological or neurological
condition that either (a) prevents the normal exercise of any
bodily or mental functions or (b) is demonstrable, medically or
psychologically, by accepted clinical or laboratory diagnostic
Viscik, supra,
173 N.J. at 16.
techniques."
There are two categories of disability discrimination:
disparate treatment, and the failure to reasonably accommodate
the employee's known disability. Id. at 19-20; Tynan v.
Vicinage 13 of the Superior Court of N.J.,
351 N.J. Super. 385,
397 (App. Div. 2002).
The LAD does not specifically speak to reasonable
Potente v. County of Hudson,
187 N.J. 103, 110
accommodation.
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(2006). However, the courts and the Department of Law and
Public Safety have. Ibid; Tynan, supra,
351 N.J. Super. at 396-
97. The Administrative Code provides that an employer must
"make a reasonable accommodation to the limitations of an
employee . . . who is a person with a disability, unless the
employer can demonstrate that the accommodation would impose an
undue hardship on the operation of its business." N.J.A.C.
13:13-2.5(b).
However, before the employer is required to provide the
employee with an accommodation, the employee must first request
it. Tynan, supra,
351 N.J. Super. at 399. Once the employee
makes a request for an accommodation, "'both parties have a duty
to assist in the search for appropriate reasonable accommodation
and to act in good faith.'" Id. at 400 (quoting Taylor v.
Phoenixville School District, 184 F.3d 296, 312 (1999)).
Moreover,
[t]o determine what appropriate
accommodation is necessary, the employer
must initiate an informal interactive
process with the employee. This process
must identify the potential reasonable
accommodations that could be adopted to
overcome the employee's precise limitations
resulting from the disability. Once a
handicapped employee has requested
assistance, it is the employer who must make
the reasonable effort to determine the
appropriate accommodation.
[Ibid. (internal citations omitted).]
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Because the failure to accommodate is an act that may prove
discrimination, Victor v. State,
401 N.J. Super. 596, 614 (App.
Div. 2008), certif. granted,
199 N.J. 542 (2009), the employer's
lack of engagement "in an interactive process to determine the
need and availability of a reasonable accommodation, supplements
the requisite presentation of a prima facie case of
discrimination." Ibid.
Here, viewing the evidence most favorably for plaintiff, we
conclude the trial court erred in granting the motion for
summary judgment. Plaintiff presented evidence that she suffers
from depression; she is required to take psychotropic
medications at night, causing her to fall in a comatose-like
sleep from which she has difficulty awakening; she requested
defendant allow her to report to work fifteen to thirty minutes
late, while making up that lost time by working through her
lunch hours, break times or on Tuesday evenings when defendant's
8:30 p.m.; the County's physician
office remains open until
supported her accommodation request; and defendant failed to
engage her in an interactive process to determine the extent of
her need and of defendant's ability to reasonably accommodate
her need. It was not the trial court's function to weigh the
evidence and determine the outcome, but only decide if a genuine
issue of material fact existed. Brill, supra,
142 N.J. at 520.
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Stated otherwise, the evidence was not so one-sided that the
trial court should have decided that defendant should prevail as
a matter of law. Ibid.
Reversed and remanded.
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