Before Judges King, P.G. Levy and Lefelt.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 20, 1999 - Decided: November 15, 1999
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
The opinion of the court was delivered by
Plaintiff, a telephone operator, was terminated from her employment with defendant AT&T Communications after twenty-two years of service. The company's stated reason was her excessive absenteeism. She had been warned about this on many occasions. Following her dismissal, she sued the company and her supervisor, Regina Somerruk, under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (the LAD), claiming discrimination because of her asthma condition and for suffering from bodily injuries sustained in a motor vehicle accident. The Law Division Judge granted summary judgment to defendants.
The issue on appeal is whether an employer is required to accommodate through toleration an employee's chronic, sporadic, and excessive absenteeism, if the absences are related to a disability or handicap recognized under the LAD. Plaintiff claims that the company used her absenteeism as a pretext for its unwillingness to accommodate her part-time work schedule and her desire for a smoke-free work environment. We conclude that the Law Division Judge properly granted summary judgment to defendants and affirm.
On October 11, 1995 plaintiff Helen Svarnas filed a twelve-count complaint in Superior Court, Law Division, Monmouth County, against defendants AT&T Communications and Regina Somerruk. The complaint sought compensatory and punitive damages for wrongful termination, disability discrimination under the federal Rehabilitation Act and Americans with Disabilities Act (ADA), disability and gender discrimination under the LAD, intentional and negligent infliction of emotional distress, violations of the State constitution, outrageous conduct, retaliatory discharge, and negligent conduct by AT&T and its agents.
Plaintiff had started working for AT&T, then New Jersey Bell, on February 9, 1971. She began as a telephone operator in Asbury Park and became a member of the collective bargaining unit of the Communication Workers of America. When the Asbury Park office closed in 1974, she went to work in Neptune. She stayed in the Neptune office until 1982 when employees were given the option of transferring to a new location in Freehold. She claimed that she wanted the transfer because the Neptune office was moldy and mildewed due to its underground location. She suffered from asthma and was also an insulin-dependent diabetic.
In 1986, while at Freehold, plaintiff requested and was denied a hardship transfer to Florida. She sought the transfer on the advice of her doctor because of the cold weather conditions in New Jersey and the air quality in the Freehold office. She admitted that, in order to qualify for such a transfer, an employee needed satisfactory attendance and performance. She also admitted that the reason for the denial was her poor attendance record. Although plaintiff filed a grievance with the union, the union did not pursue it.
Subsequent requests for a transfer were similarly denied by the company. Finally, in 1990, plaintiff's request for a transfer to Florida was granted. However, because she was given only two weeks to move and her father was ill, she turned the transfer down.
In March 1990 plaintiff applied for and was granted the title of service assistant. She said that the company overlooked her attendance record when granting her this promotion. In 1990 plaintiff was transferred to AT&T's Howell office. In 1992, when that office closed, everyone was transferred to Mercerville. On October 25, 1993 plaintiff was terminated from employment for overall career unsatisfactory attendance.
AT&T's records showed that between 1971 and 1993 plaintiff had 121 incidents of absences, for a total of 188.5 days. She also had eleven disabilities (absences of more than eight consecutive days) totaling 477.5 days of absence. She received a two-day suspension in July 1985 and had Discussions with her supervisors about her unsatisfactory attendance on February 2, 1987; February 24, 1988; April 25, 1988; September 7, 1988; October 24, 1989; April 11, 1990; May 30, 1991; January 21, 1992, and October 14, 1992.
According to defendant Somerruk, plaintiff's manager on the date she was terminated, and Julia Sanders, another first-level manager in the office where plaintiff worked, AT&T's policy for the job required satisfactory attendance. This meant being at work every scheduled day, without any leeway for absences. When an employee was out for five or six days in any twelve-month period, she would be considered as trending towards unsatisfactory, regardless of the reason, and would be counseled. A suspension, and then dismissal, could follow a warning. However, each individual's circumstances would be considered before any action was taken, and an employee's entire attendance record would be reviewed.
Any absence beyond eight consecutive days was considered a disability and would be referred to a disability case manager. The case manager had the duty to insure that employees out on disability were receiving adequate care and were truly disabled. Employees were entitled to a maximum of fifty-two weeks of short-term disability, depending on their length of service. Employees could be terminated while absent on sickness disability. Employees could lose their medical disability certification if no longer totally disabled, by not maintaining proper and adequate care, by not appearing for scheduled independent medical examinations, or by absence from home without the company's permission.
The record here shows that on February 2, 1987 plaintiff's supervisor spoke to her about her absence of four days in one month, for two separate incidents. On February 24, 1988 plaintiff was told that her attendance record was approaching unsatisfactory. On April 25, 1988 she was advised that her attendance was questionable because she had been absent twenty-five days in twelve months on seven separate occasions.
On September 7, 1988 plaintiff was warned about absence for 28½ days in one year, one disability period, and seven incidental absences. She was told that her next absence could result in disciplinary action, up to and including dismissal. By October 24, 1989 plaintiff had eight additional incidental absences, for a total of 13½ days. Again she was warned that if she had any further incidental absences she would be dismissed. The validity of her illnesses was not questioned, only her dependability and overall ability to come to work when scheduled. Also at this meeting, plaintiff was counseled regarding her health and steps she could take to prevent further illness and disability.
On April 11, 1990 plaintiff had another disciplinary Discussion regarding her attendance. She was given another "final warning," and told that the only reason she was not being terminated despite her absence the previous day was because she had not been absent for five months. However, she was told that the next occurrence could result in dismissal.
On May 30, 1991 plaintiff was informed that her attendance record was unsatisfactory and that good attendance was a condition of employment. On January 21, 1992 she was told that failure to maintain satisfactory attendance may result in disciplinary action up to and including dismissal. As of that date, she had one disability period totaling thirty days of absence and seven incidental absences totaling 8½ days.
On October 14, 1992 plaintiff was told that she had five incidents of absences in the prior twelve months, totaling 15.7 days. Her supervisor reviewed the company's attendance guidelines with her and advised her that immediate improvement was necessary. The next incident of absence ...