Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the FRANK CARABALLO v. CITY OF JERSEY CITY POLICE DEPARTMENT, a municipal entity and THOMAS COMEY, indi
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0758-15T3
FRANK CARABALLO,
Plaintiff-Appellant,
v.
CITY OF JERSEY CITY POLICE
DEPARTMENT, a municipal entity,
and THOMAS COMEY, individually
and in his representative capacity,
Defendants-Respondents.
________________________________________
Argued October 3, 2017 – Decided November 8, 2017
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
0995-13.
Brian F. Curley argued the cause for
appellant.
Scott W. Carbone, Assistant Corporation
Counsel, argued the cause for respondents
(Jeremy Farrell, Corporation Counsel,
attorney; Mr. Carbone, on the brief).
PER CURIAM
Plaintiff Frank Caraballo appeals from an August 28, 2015
order granting defendant Jersey City Police Department (JCPD)
summary judgment dismissing plaintiff's employment discrimination
complaint. We reverse.
The following facts are taken from the record. Plaintiff
joined the JCPD in 1973. On August 13, 1999, while on duty,
plaintiff was involved in a serious auto accident caused by the
failure of the brakes on the city vehicle he was operating. As a
result of the accident, plaintiff sustained several injuries
including herniated discs, broken surgical pins, temporary
paralysis, a neurological injury, and a torn meniscus.
In 2001, plaintiff filed a workers' compensation claim
against Jersey City regarding his injuries. The claim was settled
in 2013. From 2001 until 2006, plaintiff's employment status with
JCPD fluctuated between paid sick leave, light duty, and full
duty.
In 2006, a city-appointed orthopedic physician, Dr. Juluru
Rao, recommended physical therapy and indicated in his report
"anthroscopy may buy [plaintiff] relief for a very short period
of time . . . [but then plaintiff] may need total knee
replacement." Thereafter, plaintiff was sent to another
physician, Dr. Leonard Jaffe, for another opinion. Dr. Jaffe
concluded plaintiff "would not recover without significant
2 A-0758-15T3
surgery, namely total knee replacements[.]" The recommendation
that plaintiff receive knee surgery was documented in connection
with plaintiff's workers compensation claim in December 2006 by
Dr. Edward Boylan who wrote in a Case Progress Report "AWAITING
B/L KNEE REPLACEMENT." This pattern continued whereby plaintiff
was sent to Dr. Rao on April 17, 2007, and January 15, 2008, and
Dr. Jaffe on July 7, 2009, and January 10, 2011.
The final evaluation by Dr. Jaffe on January 10, 2011, was
requested by Jersey City's risk management department in order to
evaluate plaintiff's knees and comment on his fitness for duty.
After receiving the evaluation, defendant advised plaintiff that
he should retire by March 1, 2011 or JCPD would apply on
plaintiff's behalf for a New Jersey Police and Firemen's Retirement
System (PFRS) disability retirement.1
A meeting between plaintiff, his union representative, and
Jersey City Chief of Police Thomas Comey was held on February 28,
2011, to discuss plaintiff's retirement. Following the meeting,
plaintiff's union representative informed Comey that he would be
retiring "under protest." Plaintiff retired March 11, 2011.
1
Plaintiff submitted an application for retirement to PFRS on
August 24, 2010, with a requested effective date of September 1,
2010. Plaintiff then changed the effective date to November 1,
2010, and ultimately March 1, 2011.
3 A-0758-15T3
Plaintiff filed a complaint in the Law Division on February
28, 2013, against the JCPD and Comey. Plaintiff's complaint
asserted a cause of action under the New Jersey Law Against
Discrimination (LAD),
N.J.S.A. 10:5-1 to -49 and the New Jersey
Civil Rights Act (CRA),
N.J.S.A. 10:6-1 to -2. After discovery
ended, defendants moved for summary judgment. Subsequently,
plaintiff withdrew his claims against Comey individually and the
CRA claim, leaving only the accommodation based LAD claim against
the JCPD.
On August 31, 2015, the motion judge placed an oral opinion
on the record. The motion judge adjudicated the LAD and the CRA
claims, even though the latter had been withdrawn by plaintiff.
The judge made several findings of fact that were disputed by the
parties. The judge found plaintiff refused surgery and had never
asked for it. Relying on disputed medical reports, the motion
judge concluded plaintiff's accommodation claim failed because he
could not perform the essential job functions of a police officer.
The judge found plaintiff had no viable LAD claim because he had
failed to enforce his right to have the surgery in the workers'
compensation court even though the JCPD did not contest plaintiff's
right to the surgery. Plaintiff now appeals the motion judge's
entry of summary judgment.
4 A-0758-15T3
We review the grant of summary judgment by a trial court de
novo. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.
of Pittsburgh,
224 N.J. 189, 199 (2016). We apply the same
principles governing an adjudication of a motion for summary
judgment as the trial court. Atl. Mut. Ins. Co. v. Hillside
Bottling Co., Inc.,
387 N.J. Super. 224, 230 (App. Div.), certif.
denied,
189 N.J. 104 (2006). Rule 4:46-2(c) states an order
granting summary judgment shall be entered "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." A fact
is material if it is substantial in nature. See Brill v. Guardian
Life Ins. Co. of Am.,
142 N.J. 520, 529 (1995).
"A court deciding a summary judgment motion does not draw
inferences from the factual record as does the factfinder in a
trial, who 'may pick and choose inferences from the evidence to
the extent that "a miscarriage of justice under the law" is not
created.'" Globe Motor Co. v. Igdalev,
225 N.J. 469, 480 (2016)
(quoting Brill, supra,
142 N.J. at 536). Rather, in reviewing
summary judgment orders, the court must look at the facts in a
light most favorable to the non-moving party and determine whether
5 A-0758-15T3
a genuine issue of material fact exists sufficient to be tried.
See Brill, supra,
142 N.J. at 523.
Plaintiff argues the motion judge erred granting summary
judgment by making "a plethora of findings of fact on genuinely
disputed issues of fact." Specifically, plaintiff argues the
motion judge erred by: (1) misstating the timeline and
mischaracterizing the nature of plaintiff's injuries; (2) stating
plaintiff refused knee surgery "due to family problems"; and (3)
concluding summary judgment was appropriate since plaintiff
refused the alleged reasonable accommodation. We agree.
The motion judge concluded plaintiff refused to undergo knee
surgery by relying on materially disputed facts. The judge said
"[d]espite recommendations from several doctors, plaintiff did not
undergo surgery to his right knee due to family problems." The
judge also concluded plaintiff did not ask for the surgery.
Relying on Comey's deposition testimony, the judge found:
Accordingly, Comey testified that [] had
plaintiff ask[ed] him to authorize the knee
replacement surgery, he would have contacted
[Lt.] McLellan [the Commander of the JCPD
Medical Bureau] and would have done so. . . .
After plaintiff was informed by Lt. McLellan
that he was unfit for duty, Comey asserted the
plaintiff refused to see a knee replacement
specialist.
The motion judge's conclusions are refuted by the record.
Specifically, the finding that plaintiff refused the surgery is
6 A-0758-15T3
contradicted by a July 17, 2006 letter from plaintiff's counsel
to the Jersey City Law Department stating plaintiff had recently
seen Dr. Rau and Dr. Jaffe and was informed he was a candidate for
total knee replacement surgery. The letter states in pertinent
part "Kindly have risk management authorize the aqua therapy and
the surgery recommended by both Dr. Rau and Dr. Jaffe."
Nearly two years later on April 9, 2008, plaintiff's counsel
wrote the Jersey City Law Department stating "My client who does
wish to have the knee replacement(s) wants to have the surgery
done by Dr. Hartspan (specialist in knee replacement)." The letter
concludes: "I would ask that you confirm Mr. Soriero's2
authorization with him and provide me with written authorization,
which I can give to Dr. Hartspan."
On December 18, 2008, plaintiff's counsel again corresponded
with the Jersey City Law Department quoting Dr. Jaffe's April 17,
2006 report, which stated plaintiff will not recover without a
total knee replacement. The letter ends "it seems that all we
need is authorization for the surgery." Thus, whether plaintiff
refused surgery or requested it is a materially disputed fact.
Additionally, the record also contains deposition testimony
from Soriero, that defendant failed to follow up approving
2
Peter Soriero was the JCPD risk management department
representative.
7 A-0758-15T3
plaintiff's knee surgery, and that plaintiff had not refused the
surgery. Soriero testified as follows:
[Q.]: Do you recall any communications from
Ms. Murphy in the law department or anybody
in the law department forwarding the request
– I would call it a demand – that the knee
replacement surgery be approved?
[Soriero]: I do not recall this, no, I don't.
[Q.]: Well, in a context like this where at
that time Mr. Caraballo has been diagnosed by
the two city-approved and appointed orthopedic
experts that he needed the knee replacement
surgery, are you saying that it was perfectly
feasible that it would have just fallen into
some hole where the doctor did not make the
proper request and therefore the risk
management department did not grant approval?
[Soriero]: It's very possible. As I
explained before, our operations are somewhat
informal. It's not like an insurance company.
We're somewhat informal, so it's a possibility
that that could have happened, yes.
Soriero also testified:
[Q.]: We're going to see numerous more
requests from 1999 to 2011, twelve years, five
of which we can document recommendations from
the city doctors to have knee replacements.
At some point doesn't somebody wake up to the
idea that, Okay, let's get it done, and if
it's a paperwork problem . . . [then] let's
go tell them they need to give us a specific
where and when so we can get this done because
we have an officer in distress? . . . I mean,
at some point shouldn't that light bulb go
off?
[Soriero]: Yes, it should have.
8 A-0758-15T3
[Q.]: Because you're speaking for the city
on this particular point, is it the city's
position that the surgery did not occur
because Mr. Caraballo refused to have it, the
knee replacement surgery?
[Soriero]: Not to my knowledge he refused it,
no.
This testimony was not addressed by the motion judge and
demonstrates a material dispute of fact. Summary judgment was
inappropriate under these circumstances.
Although the motion judge did rely on Comey's deposition
testimony to draw the conclusion plaintiff did not request the
surgery, the judge ignored the portions of Comey's testimony that
contradicted the statements relied upon to grant summary judgment.
Specifically, Comey testified although plaintiff may have
expressed reservations about surgery, he did not refuse it.
[Q.]: In other words, [] was [plaintiff]
refusing to have [the surgery]?
[Comey]: Not that he was refusing. Not
refusing. Hesitations or reservation. Having
surgery was his own personal choice.
. . . .
[Q.]: You don't recall him ever expressing –
saying he didn't want to have the surgery,
correct?
[Comey]: No, sir.
. . . .
9 A-0758-15T3
[Q.]: And he never made any expression to you
saying, "I do not want to have knee surgery."
He never said anything like that to you,
correct?
[Comey]: To the best of my recollection, no,
sir.
Additionally, Comey testified that he could not recall whether
plaintiff had been approved to have the surgery by risk management.
Comey's testimony demonstrates the existence of material
factual disputes. "[A]n issue of fact is genuine only if,
considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion . . . would require
submission of the issue to the trier of fact." Schiavo v. Marina
Dist. Dev. Co.,
442 N.J. Super. 346, 366 (App. Div. 2015) (quoting
R. 4:46-2(c)), certif. denied,
224 N.J. 124 (2016). The record
is replete with material factual disputes over the central issue
of why plaintiff retired without receiving knee surgery. Whether
there was a justification for the passage of time is a dispute
that could not be decided on summary judgment and is for the trier
of fact.
We turn next to plaintiff's argument the motion judge erred
by concluding plaintiff was not qualified under the LAD to assert
an accommodation claim because he was unable to perform the
essential duties of his job without a reasonable accommodation.
Plaintiff asserts the motion judge misconstrued the LAD because
10 A-0758-15T3
the question was whether plaintiff could perform the essential
duties of his position after being afforded a reasonable
accommodation. We agree.
Pursuant to Victor v. State,
203 N.J. 383, 410 (2010), a
plaintiff must demonstrate: (1) he was disabled within the meaning
of the LAD; (2) he was otherwise qualified to perform the essential
functions of the job, with or without accommodations; and (3) he
suffered an adverse employment action because of the disability.
The employer has an affirmative obligation to reasonably
accommodate a disabled employee.
The second prong of the LAD test "requires plaintiff to
demonstrate that he or she is qualified to perform the essential
functions of the job, or was performing those essential functions,
either with or without a reasonable accommodation." Victor, supra,
203 N.J. at 410. Therefore, a plaintiff may assert he would be
able to perform the essential functions of his job with the
reasonable accommodation requested. Ibid. In other words, the
court must consider "whether [the] reasonable accommodation[]
would enable the [plaintiff] to perform [the essential]
functions[.]" Svarnas v. AT&T Commc'ns,
326 N.J. Super. 59, 75
(App. Div. 1999).
11 A-0758-15T3
Here, the motion judge misunderstood prong two and relied
upon materially disputed evidence to disqualify plaintiff from
meeting it. The judge reasoned:
Plaintiff advances the argument that
defendant's expert Dr. Hunter testified that
plaintiff could have returned to full duty
employment if a knee replacement surgery was
performed. []
This argument is of no moment because
plaintiff was not qualified under the NJLAD
due to the fact he could not perform the
essential functions of his position as a
police detective.
. . . .
There is ample evidence in the record to
support this conclusion. As Dr. Jaffe
indicated in his evaluation of plaintiff, ["]I
do not feel he is a candidate to return to
work as a police officer either now or in the
future based on the disability and evaluations
from today[.]["]
Although plaintiff may not have been able to perform the job
of detective without a reasonable accommodation, there was a
material dispute as to whether he would have been able to perform
his job with a reasonable accommodation, namely the surgery, which
should have been presented to a jury. Plaintiff presented a prima
facie case for a reasonable accommodation claim under the LAD and
summary judgment was not appropriate.
Reversed.
12 A-0758-15T3
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