KELLY QUEEN v. CITY OF BRIDGETON BUSINESS ADMINISTRATOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1339-11T1

KELLY QUEEN,

Plaintiff-Appellant,

v.

CITY OF BRIDGETON,

BUSINESS ADMINISTRATOR ARCH

LISTON, BRIDGETON POLICE

DEPARTMENT, and MAYOR JAMES B.

BEGLEY,

Defendants-Respondents.

__________________________________

October 29, 2012

Argued September 19, 2012 - Decided

Before Judges Parrillo,1 Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Cumberland County, Docket No. L-1035-08.

Shanna McCann argued the cause for appellant (Chance & McCann, L.L.C., attorneys; Ms. McCann, on the brief).

Virginia A. Pallotto argued the cause for respondent (Budd Larner, P.C., attorneys; Ms. Pallotto and Jonathan S. Roth, on the brief).

PER CURIAM

Plaintiff, Kelly Queen, a police dispatcher in the City of Bridgeton, filed a nine-count complaint against the City, its police department, business administrator (Arch Liston) and mayor (James Begley), alleging, among other things, and most pertinent for present purposes, disability discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, based on her denial of access to the City's donated sick leave bank program. She appeals the summary judgment dismissal of her complaint. Specifically, by order of June 29, 2011, the trial court dismissed with prejudice: the marital status discrimination claim contained in Count I; Count II (discrimination under Title VII of the Civil Rights Act of 1964); Count IV (intentional infliction of emotional distress); Count V (negligent infliction of emotional distress); Count VI (interference with contractual relations); Count VII (respondeat superior); and aspects of Count IX alleging misrepresentation.2 After additional discovery, the residual claims in the one remaining count (Count I), alleging gender, disability and perceived disability discrimination under the LAD, were dismissed by order of October 6, 2011, which also denied plaintiff's motion to reconsider the previous dismissal. Plaintiff appeals from these two orders for summary judgment, and we affirm.

The proofs, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Plaintiff commenced employment with the City as a dispatcher/telecommunications officer on February 13, 2003. While at work on October 16, 2006, she felt ill with a racing heartbeat. She left work and the next day saw her family physician Dr. Judith Riley-Lowe, who referred plaintiff to a cardiologist, Dr. Michael J. Butler. He diagnosed her with tachycardia and dyspnea, each of uncertain etiology, and mitral valve prolapse, which was considered to be a potential cause of both conditions. A CT scan of the chest to rule out pulmonary embolism was negative. At a second visit on October 30, 2006, Dr. Butler performed a cardiovascular stress test. Plaintiff never returned to Dr. Butler, and from November through December 2006, she received no treatment.

Plaintiff had, however, returned to her primary care physician for a follow-up visit on November 6, 2006. Dr. Riley-Lowe recommended she not return until the end of January 2007, even though she had not experienced the same type of heart racing since the event on October 16, 2006. Plaintiff next saw Dr. Riley-Lowe on January 4, 2007 and once again on January 25, 2007, at which time plaintiff was cleared to return to work. Plaintiff returned to work on February 18, 2007.

By then, plaintiff had exhausted her annual allotment of ten sick days as well as her medical leave of absence, which the City had granted her under the Family Medical Leave Act (FMLA), 29 U.S.C.A. 2601 to 2654. While out on leave, plaintiff had also requested access to the City's donated leave program (alternatively referred to as "sick bank"), instituted in 2003 under a collective bargaining agreement (CBA) negotiated between the City and plaintiff's union.

The declared purpose of the program is to "permit City of Bridgeton employees to donate earned sick time and/or vacation time on a voluntary basis to another City of Bridgeton employee who is suffering from a catastrophic health condition or injury which is expected to require a prolonged absence from work by the employee . . . ." To be eligible, a City employee must be "suffering from a catastrophic health condition or injury which necessitates said employee's prolonged absence from work and for which said employee has no availability to paid leave." To support such a claim, the employee must produce "acceptable medical verification from a physician or other licensed health care provider. The medical verification must indicate the nature, severity and anticipated duration of the disability resulting from the serious health condition or injury involved." The employee must contact his or her department head, who in turn

will require medical documentation concerning the nature, severity and anticipated duration of the medical emergency involved. The department head will provide the proper forms to the eligible employee. Both the department head and the Business Administrator must approve of the eligibility of any employee before he/she can participate in the program. Decisions and approvals regarding eligibility will be made on a case-by-case basis.

In support of her request for donated sick time, plaintiff submitted Dr. Riley-Lowe's notes, but not her medical records. On or about October 25, 2006, the City's business administrator, who had been designated to review program eligibility applications, denied plaintiff's request, finding her condition was not catastrophic based on such factors as ability to recover, length of illness, hospitalization, imminent death and inability to function in a normal capacity. The next day, plaintiff filed a grievance pursuant to the CBA, alleging the City violated the CBA by denying her access to the sick bank, and seeking donated leave time "retroactive to [her] last working day." Plaintiff's appeals through the next two tiers of the CBA grievance procedure were also denied.

Thereafter, both parties agreed to bypass the penultimate level of the grievance procedure and proceed directly to arbitration. Before the start of the hearing, the parties settled the grievance and memorialized their agreement:

The parties agree to settle the above grievance based upon permitting the grievant to invoke the procedures of Article 7 of the [CBA] without interference relative to donated medical leave if the employee's treating physician documents a catastrophic health condition or injury as specified in the [CBA].

This settles all outstanding issues between the City and the Employee arising under the above Grievance.

Despite a second chance to apply for program benefits as a result of the grievance settlement, plaintiff, by her own admission, never provided medical "document[ation of] a catastrophic health condition or injury as specified in the contract[]" and grievance settlement. Instead, plaintiff filed the instant complaint against defendants on May 27, 2010, principally alleging disability discrimination by refusing her sick bank time.

Discovery ensued following defendants' responsive pleading. Ultimately, the City produced the files of ten other sick bank requests since 2003, six from women and four from men. The five women granted access suffered from: a high risk pregnancy that required complete bed rest, per doctor's orders; Guillain-Barre Syndrome; breast cancer, resulting in mastectomy and resulting reconstructive surgery which ultimately forced the employee to retire; a stabbing injury to the left hand that required surgery; and esophageal cancer. The only woman denied sick bank access was recuperating from pregnancy and had high blood pressure. Of the four men who requested sick bank access, the City approved two and denied two. Of the two men approved, one suffered from prostate cancer, and the other was hospitalized following an acute stroke. Of the two men denied, one suffered from a back condition, and the other from a heart condition.

Following discovery, defendants moved for summary judgment. In its first order, dated June 29, 2011, the court dismissed the bulk of plaintiff's complaint, including counts alleging misrepresentation and intentional infliction of emotional distress. The only remaining claim alleging disability and gender discrimination based on denial of access to the sick bank as a reasonable accommodation was dismissed in a subsequent order dated October 6, 2011.3 As to the disability discrimination claim, the motion judge reasoned:

Now, it turns out that the denial of the use of the Sick Leave Bank, which potentially was a violation of a Collective Bargaining Agreement, was contested through the avenues set up in the Collective Bargaining Agreement by way of grievance process, arbitration or otherwise. And it went through a couple of steps. It went to a hearing. And then a settlement was reached[;] by way of that she could avail herself of the Sick Leave Bank if she was able to demonstrate within the meaning of the agreement that she qualified for it by having a catastrophic injury or condition.

Ultimately, for whatever reason, she didn't submit the necessary medical documentation to establish that she qualified for that use of the Sick Leave Bank.

And it kind of ends there. I don't find that the Plaintiff has shown [or] even given inferences and even under a summary judgment analysis, that this is a case where the Plaintiff can prove given this record that she's the victim of disability or perceived disability discrimination.

. . . .

Ultimately, [she] goes back on the job. To this day she apparently has never satisfied the criteria for a catastrophic [health condition] within the meaning of the Collective Bargaining Agreement because she didn't submit the [indiscernable] medical documentation for whatever reason.

But this is the type of medical condition that one could envision an employer who would very much question whether it meets the characteristics of a catastrophic illness.

. . . .

And I agree with the Defense that this analysis that the Plaintiff is now using that the refusal to allow the Plaintiff to avail herself of the Sick Bank by taking donated leave pursuant to the Collective Bargaining Agreement was a failure to give her a reasonable accommodation. I just don't see it. I think it does indeed turn the test or the applicability of reasonable accommodation on its head. And I don't see that as being within what is contemplated under the law and under the case law.

So and I also find that -- directing her to return to work on February 18th and not allowing her to take that day off when she had no accrued leave at that point for February 19th does not constitute a failure to provide a reasonable accommodation.

On appeal, plaintiff contends her proofs raise genuine issues of material fact precluding summary judgment and establish a prima facie case of disability discrimination under the LAD because defendants (1) denied her sick bank access, a type of reasonable accommodation; and (2) required her to return to work on February 18, 2007. We disagree.

The LAD 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 alsoN.J.S.A.10:5-29.1 ("Unless 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."); N.J.A.C.13:13-1.3; Myers v. AT & T, 380 N.J. Super.443, 452-53 (App. Div. 2005), certif. denied, 186 N.J.244 (2006).

The LAD, however, permits an employer to terminate an employee who is unable to perform the job because the employee's disability in fact impedes job performance. Andersen v. Exxon Co. USA., 89 N.J.483, 496-97 (1982); see alsoRaspa v. Office of Sheriff 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 business. Ibid.

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

To establish a prima facie case of disability discrimination in a termination context, a plaintiff is required to offer evidence that (1) she was in the protected group; (2) she was performing her job at a level that met her employer's legitimate expectations; (3) she nevertheless was fired; and (4) the employer sought someone to perform the same work after she left. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988). Here, of course, plaintiff was not terminated and, in fact, continues to work for the City in the same capacity as before her alleged disability event. She bases her disability discrimination claim not on wrongful discharge then, but on the allegation that defendants failed to reasonably accommodate her by not approving her sick bank request and requiring her to return to work on the day (February 18, 2007) of a scheduled doctor's appointment.

To establish a prima facie case of a failure to reasonably accommodate, a plaintiff must show that she (1) "had a LAD handicap; (2) was qualified to perform the essential functions of the job, with or without accommodation; and (3) suffered an adverse employment action because of the handicap." Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App. Div. 2001). In construing the LAD, we have frequently considered analogous federal precedent, Lehmann v. Toys 'R' Us, Inc., 132 N.J.587, 600 (1993), including the Americans with Disabilities Act (ADA), 42 U.S.C.A. 12101 to 12213, under which "an employer's duty to accommodate extends only so far as necessary to allow 'a disabled employee to perform the essential functions of his job [and] does not require acquiescence to the employee's every demand[,]'" Bosshard, supra, 345 N.J. Super.at 91 (quoting Vande Zande v. State of Wis. Dep't of Admin., 851 F. Supp. 353, 362 (W.D. Wis. 1994), aff'd, 44 F.3d 538 (7th Cir. 1995)).

In this regard, our Supreme Court has explained:

[R]easonable accommodation "'refers to the duty of any employer to attempt to accommodate the physical disability of the employee, not to a duty on the part of the employer to acquiesce to the disabled employee's requests for certain benefits or remuneration.'" Our appellate courts have similarly recognized that not every accommodation demand is a reasonable one.

Likewise, "[i]f more than one accommodation would allow the individual to perform the essential functions of the position, 'the employer . . . has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.'" Engaging in the interactive accommodation process "does not dictate that any particular concession must be made by the employer . . . [but instead what it] requires is that employers make a good-faith effort to seek accommodations."

[Victor v. State, 203 N.J. 383, 423-24 (2010) (alterations in original) (citations and emphasis omitted).]

See alsoRaspa, supra, 191 N.J.at 339. As we have previously stated:

The LAD does not require an employer to create a permanent part-time position for a disabled employee if no suitable full-time position exists. Nor does the LAD require an employer to create a permanent light-duty position to replace a medium-duty one. Rather, an employer must simply 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 & Eng'g Co., 345 N.J. Super. 595, 608 (App. Div. 2001), certif. denied, 172 N.J. 355 (2002).]

Thus, 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, supra, 345 N.J. Super.at 608, 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"); Galante v. Sandoz, Inc., 192 N.J. Super.403, 412 (Law Div. 1983) (plaintiff did not establish a LAD claim based on disability discrimination when he was terminated because his accumulated absences were in excess of those allowed by the employer, even though the absences were the result of a work-related injury), aff'd, 196 N.J. Super.568 (App. Div. 1984), appeal dismissed, 103 N.J.492 (1986). In other words, the LAD does not require an employer to keep a job open for an employee who exhausts sick days. Raspa, supra, 191 N.J.at 339; Muller, supra, 345 N.J. Super.at 608.

Moreover, as we noted in Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 423 (App. Div. 2001), 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. SeeTaylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315-16, 319-20 (3d Cir. 1999).

In this case, even assuming, without deciding, that plaintiff's heart condition qualified as a "disability" under the LAD, she has not established any violation of her employer's duty to reasonably accommodate that disability. Unlike the typical claim, wherein an employee seeks an accommodation that would facilitate her return to work, maintain her employment, or remedy her condition, plaintiff here demands just the opposite, namely a monetary benefit that would permit her continued absence from work, and which defendants have no recognized legal duty to provide. Indeed, plaintiff never established that she was able to work with or without any accommodation. Accordingly, the summary judgment proofs simply do not support a valid disability discrimination claim based on reasonable accommodation.

To be sure, defendants instituted a "sick bank" program by contractual arrangement negotiated with plaintiff's union. However, plaintiff opted not to pursue this relief when given a second chance, having freely abandoned the procedure established by the CBA and her own grievance settlement in favor of the instant lawsuit.4

But even assuming defendants had a legal duty apart from its limited contractual commitment in creating the program, plaintiff still has not shown a breach of any such obligation. To the extent that making the program available to employees may be considered an "accommodation" at all, plaintiff has made no showing that it is an unreasonable one in this instance. Certainly an employer is free to set qualifying criteria that govern the program's administration and the distribution of its limited resources. On this score, plaintiff has failed to demonstrate that the manner and means by which defendants here have chosen to define applicant eligibility are either arbitrary or unreasonable. Nor has she shown any breach of these conditions in her particular case.

In our view, a blanket mandate, as suggested by plaintiff, that an employer provide such donated sick leave as a matter of right and automatic entitlement to every "disabled" employee is outside the scope of the LAD. So too is plaintiff's challenge to the method chosen for limiting access to this benefit, once made available. Stated otherwise, plaintiff has not demonstrated that restricting eligibility to those employees with the medically proven most serious (i.e., "catastrophic") illnesses or injuries is unreasonable or arbitrary. In fact, in her grievance settlement, plaintiff agreed to be bound by this established criterion as well as the procedures set forth under the CBA for the program's administration and, in all fairness, she may not now be heard to complain otherwise.

Nor has plaintiff shown that the program, in classifying injuries as catastrophic or not, has been administered by defendants in an unfair and discriminatory fashion. To the contrary, the discovery indicates that those employees granted donated sick leave to date have suffered from medical conditions far more serious than plaintiff's. And finally, plaintiff has also failed to show that defendants did not make a good faith effort in assisting her in seeking this "accommodation." In fact, the grievance settlement itself belies any such claim.

To sum, the fact that plaintiff was denied access for want of a catastrophic injury does not alter the availability of the sick bank; she simply did not qualify and defendants' denial has not been shown to amount to a failure to reasonably accommodate her "disability" and recovery.5

Plaintiff's challenges to the summary judgment dismissal of her misrepresentation and intentional infliction of emotional distress claims are without merit, Rule2:11-3(e)(1)(E), and we affirm the orders of June 29, 2011 and October 6, 2011 in these respects substantially for the reasons stated by the motion judge in his oral opinions of June 29, 2011 and October 6, 2011.

We also reject plaintiff's challenge to the court's October 18, 2011 order awarding her only $350 in counsel fees for defendants' discovery deficiencies as not properly before us. Suffice it to say, plaintiff never properly appealed from this order. Rule 2:5-1(f)(3)(A) provides that in civil actions the notice of appeal "shall designate the judgment, decision, action or rule, or part thereof appealed from." "[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (concluding that plaintiffs failed to "indicate in either their notice of appeal or in their amended notice of appeal that they were appealing from the order of March 4, 1999, that denied their cross-motion" and therefore the issue was "not properly before us for review"), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994) (concluding that issue raised in brief but not designated in notice of appeal was not properly before the court).

Here, plaintiff not only failed to designate the October 18, 2011 order in her notice of appeal, but she also failed to include that order with the record on appeal and never produced the transcript of her motion for counsel fees. Her challenge to the award therefore is not properly before us for review.

Affirmed.

1 Judge Parrillo listened to a recording of oral argument without objection by the parties.

2 A previous order of August 13, 2010, granting summary judgment dismissal of Counts III, VIII and part of IX, all alleging mold in the workplace in violation of state and federal law, is not the subject of this appeal.

3 In the interim, on July 11, 2011, the court issued an order granting in part plaintiff's cross-motion to compel discovery and allowed plaintiff to file an affidavit of reasonable attorney's fees and costs with respect to the cross-motion to compel only, e.g., not as to the substantive opposition to defendants' summary judgment motion. On July 22, 2011, plaintiff's counsel filed a certification of services seeking $9,974.21 for the cross-motion to compel discovery. Defendants opposed the request for attorney's fees as excessive. On October 18, 2011, the court awarded plaintiff $350 in counsel fees.

4 We learned at oral argument that Article 5.4 of the CBA also provides City employees with certain temporary disability benefits, as reflected by the CBA's table of contents contained within defendants' appendix. Plaintiff's counsel represented to us that her client did not obtain such temporary disability benefits, although the reasons for that are not documented in the record. Although the record does not reproduce the terms of the temporary coverage provided under Article 5.4, the existence of such benefits, as an additional potential "safety net" for disabled City employees, could only bolster the reasonableness of the City's general policy to confine access to its catastrophic sick bank to more extreme and longer-lasting disabilities.

5 We deem plaintiff's challenge to the summary judgment dismissal of that aspect of her disability discrimination claim alleging she was "forced" to return to work on February 18, 2007 and had therefore to reschedule a doctor's appointment to be utterly devoid of merit, not warranting further discussion. R. 2:11-3(e)(1)(E).