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NIEVES v. INDIVIDUALIZED SHIRTS

April 28, 1997

MARIA NIEVES, Plaintiff
v.
INDIVIDUALIZED SHIRTS, et al., Defendants.



The opinion of the court was delivered by: WALLS

 Walls, District Judge

 Defendants, Individualized Shirts and its parent company, Tom James of America, Inc. (collectively, "defendants" or "Individualized Shirts"), move for summary judgment on the complaint of plaintiff Maria Nieves ("Nieves"). Nieves cross moves for summary judgment. On February 24, 1997, the Court heard oral argument from counsel for both parties. For the reasons stated below, the Court grants in part and denies in part the motion of the defendants, and denies the cross motion of the plaintiff.

 I. Factual Background

 Individualized Shirts operates a custom shirt factory in Perth Amboy, New Jersey. All non-managerial employees are members of the Amalgamated Clothing and Textile Workers' Union ("the union"). Nieves was represented by the union the entire time she worked for the defendants and had no employment contract other than the collective bargaining agreement ("the CBA") between the union and defendants.

 Nieves began working at Individualized Shirts in August 1981 as a cuff cutter, a job that required her to stand all day. According to Individualized Shirts, a standing position gives the worker the needed leverage on the short knife used for the cutting function of the job.

 The plaintiff averaged approximately $ 8.50 per hour and worked forty hours per week. She resigned from the employment in April 1987, returned in August 1991, and resigned again in September 1991, telling her supervisor that her varicose veins caused her pain and negatively affected the amount of time she could remain standing.

 After she resigned in September 1991, Nieves took a part-time position as a teacher's aide, which allowed her to sit down for part of the work day. She then separated from her husband and needed a full time job in order to support her family. In late December 1992, Nieves called her former supervisor at Individualized Shirts to ask if there were any positions available. According to Nieves, she informed that person that any position would have to be one which permitted her to sit while working.

 Individualized Shirts states that it offered Nieves a position in the computer room performing data entry with the understanding that she would also work as a cuff cutter. She returned to work in the computer room from January to July 1993 until she was transferred to a cuff cutter position. Dissatisfied with the transfer, plaintiff asked her supervisor to remain in data entry. According to Nieves, the supervisor advised that if she worked as a cuff cutter for part of the day, she would be able to work at data entry for the rest of the time. Although plaintiff consented to the arrangement, Individualized Shirts never attempted this "half and half" schedule and she was required to stand all day as a cuff cutter. Nieves was informed that no accommodation could be made for her.

 So Nieves worked as a cuff cutter from July 1993 to April 1994, when she took maternity leave. She returned to work in June 1994 with a doctor's note stating that due to her varicose veins she could not stand for more than three consecutive hours. Nieves sought and was granted medical leave to have corrective surgery to her varicose veins.

 Individualized Shirts held open her cuff cutter job until she was ready to return in October 1994. She returned with a doctor's note stating that she needed light duty work with no prolonged standing. At that time, the full complement of three union employees was working in the computer room. Because the CBA did not provide for factory wide seniority rights, Individualized Shirts could not lay off one of the computer room employees to substitute Nieves. Nor did Individualized Shirts have any light duty positions available to her. Consequently, Nieves' employment was terminated by Individualized Shirts.

 Plaintiff collected unemployment benefits from October 1994 to April 1995. In September 1995, she started working as a bus driver for 26 1/2 hours a week. Nieves testified that following her discharge, "[she] was depressed, [her] kids were affected, [her] daughter had problems in school because of [her] . . . anger, frustration, financial -- [her] credit was ruined." Nieves Dep. at 84:25 - 85:4. She expressed her frustration and concern over being the "sole supporter" of her children, stating,

 
There were times they needed clothing, you know, things . . . for school . . . I mean, sometimes I couldn't dress them nicely. They would get teased by other kids, and my daughter was retained to the same grade. I believe it had to do with what I was going through.

 She also indicated that her ex-husband was behind on his obligations to pay child support, which added to her difficulties. Id. at 91:14-18.

 The CBA in effect during the time Nieves was last employed at Individualized Shirts provided the following:

 
LEAVE OF ABSENCE
 
. . . An employee on leave of absence shall be reinstated to his or her previous job, operation or machine upon return to work.
 
CIVIL RIGHTS
 
1. The Employer and the Union shall not discriminate nor perpetuate the effects of past discrimination, if any, against any employee or the applicants for employment on account of race, color, religion, creed, sex, or national origin. This clause shall be interpreted broadly to be co-extensive with all federal, state or local anti-discrimination laws and where available, judicial interpretation thereof.
 
* * *
 
If, upon failure to mutually agree [upon such steps as are necessary to achieve compliance], either party invokes the arbitration procedures of this agreement to resolve the dispute, the Impartial Chairman shall fashion his award to grant any and all relief appropriate to effectuate this article.
 
ARBITRATION
 
A. Grievances and Arbitration, initiated by the Union, the Employer, or an employee through the Union, shall be the sole means of settling disputes which may arise between the parties.
 
B. Any complaint, grievance or dispute arising out of or relating directly or indirectly to the provisions of this agreement or the interpretation or performance thereof, shall in the first instance be taken up for adjustment between the representatives of the Union and the Employer and, if they are unable to adjust the same, the matter shall be referred for arbitration and determination to . . . the Impartial Chairman under this agreement[.] [emphasis added]
 
* * *
 
K. The procedure established in this agreement for the adjustment of disputes shall be the exclusive means for the determination of such disputes, including strikes, stoppages, lockouts and any and all claims, demands, and acts arising therefore, except as expressly provided otherwise in this agreement. No proceeding or action in a court of law or equity shall be initiated other than to compel arbitration or to enforce awards. This Paragraph shall constitute a complete defense and ground for a stay of any action or proceedings instituted contrary thereto.

 Nieves neither signed nor was provided with a copy of the CBA. She never filed a grievance with the company.

 On May 2, 1996, Nieves related at her deposition:

 
Q: Do you still suffer from the same disability that you suffered from in October of 1994?
 
A: Somewhat, I still get swelling, occasional pain if I'm standing for a long time.
 
Q: Are there any restrictions on your activities now?
 
A: Not necessarily, only doctor's orders, you know, that I have to elevate my legs a few hours of the day, which I do, and I wear the stockings if I'm going to do a lot of standing, that's it.
 
Q: You only have to wear the stockings if you're going to be standing for a long time?
 
A: Sometimes. It depends. Sometimes I have to wear them even if I'm not standing, even at home if I'm standing doing something, you know. I put them on because I do feel like the surgery, from the incision, sometimes I get a little throbbing in there.

 Nieves Dep. at 60:145 - 61:4.

 In a report dated July 19, 1996, the plaintiff's expert, Dr. Malcolm H. Hermele, noted that Nieves complained of "difficulty squatting and kneeling or standing for more than 30 minutes because of pain and fatigue in her legs." She has difficulty walking in malls and exercising, "feels confined [because] her legs fatigue easily," suffers from sleep disruption, and leg spasms and throbbing knees. Based upon these complaints, Dr. Hermele opined that Nieves "has a physical disability that substantially limits her in major life activities such as walking, standing for prolonged periods of time, significant decrease in ability to shop; it interferes with her sleep pattern and sexual activity, difficulty squatting and kneeling and has limited her ability to find adequate employment." Dr. Hermele states that her disabilities are substantial and likely to be permanent.

 Nieves also submits the expert witness report of Robert John Anders, an industrial design consultant. Anders states that the defendants could reconfigure Nieves' work station to accommodate her need to work while seated. According to him, such modifications would cost less than $ 500.00.

 In regard to this motion, the defendants have presented the expert witness report of Sylvano Anthony Tagnani, who holds a degree in industrial engineering and is a consultant to shirt making firms such as Individualized Shirts. His report asserted that the use of a short knife to cut fabric while one is sitting is both less safe and less efficient than its use when one is standing. The report incorporates the comments of textile workers who engage in short knife cutting. The defendants also state that the accommodation of a person who must remain seated would require the redesign of the entire work area. Moreover, they argue that productivity would decline and the employee who remained seated would earn less money as a result.

 II. Procedural History

┬áNieves filed complaints against the defendants with the New Jersey Division on Civil Rights ("NJDCR") and the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued an administrative ruling of no probable cause with regard to her claims and gave her a right to sue letter. She brings this action against the defendants, alleging, among other things, violations of the Americans With Disabilities Act (ADA) of 1990, 42 U.S.C.A ┬ž 12101 et seq., the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. ...


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