United States District Court, D. New Jersey
June 15, 2005.
GEORGIA ANN RYDER-DIEUJUSTE, Plaintiff,
DHL WORLDWIDE EXPRESS, INC. a Delaware Corporation, Defendant.
The opinion of the court was delivered by: JOEL PISANO, District Judge
Plaintiff Georgia Ann Ryder-Dieujuste ("Plaintiff") has brought
a single count complaint under the New Jersey Law Against
Discrimination ("NJLAD") against her former employer, DHL
Worldwide Express, Inc. ("Defendant" or "DHL"), alleging that DHL
failed to accommodate her disability. Before the Court is
Defendant's motion for summary judgment. The Court has
jurisdiction under 28 U.S.C. § 1332, and considers the arguments
set forth by counsel in their briefs and at oral argument, held
on May 23, 2005. For the reasons explained below, the Defendant's
motion for summary judgment is denied.
The material, undisputed facts are as follows. Beginning in
1980, Plaintiff worked for DHL for approximately twenty-two years
as a receptionist; her job title was later formally changed to
"station assistant." (Plaintiff's Statement of Material Facts
("Pl. Facts"), p. 3). At the time she resigned in May 2002, she
reported to Lennie Jensen ("Jensen"), supervisor of customer
service, and Al Cajide ("Cajide"), Station Manager of the Newark,
New Jersey location. (Pl. Facts, p. 3-4). In her capacity as
"station assistant," Plaintiff worked at the reception desk from
8:00 a.m. to 4:45 p.m., performing various customer service and
administrative tasks. (Defendant's Concise Statement of Material
Facts ("Def. Facts"), p. 2 at ¶ 3-4). Plaintiff spent "most of
the day" answering the phones, taking messages and routing phone
calls. (Dieujuste Dep., 144:11-21).*fn1 She also handled
customer intakes, and her job description detailed various other responsibilities she had around the office. (Pl. Facts, p.
Plaintiff started having difficulties with her health in
October 2001. (Pl. Facts, p. 9). She continued working, but
experienced a climax of symptoms in late March 2002. (Id.). She
had problems with her sight, experienced weight loss, and felt
very weak. (Id.). She was out sick during the last week of
March and was diagnosed with type II diabetes. (Id. at p.
10-11). Plaintiff's treating physician, Dr. Burma Cavanaugh,
placed Plaintiff on insulin and recommended that she eat at 8:00
a.m., 1:00 p.m., and 5:30 p.m., and that she rest for the
remainder of the night. (Id. at p. 11).
In January of 2002, DHL planned to implement changes as part of
a company-wide effort to improve efficiency and reduce costs.
(Def. Facts, p. 3 at ¶ 8). Plaintiff was aware of these plans and
suspected that she could be downsized. (Id., p. 4 at ¶ 12). In
April, after Plaintiff returned from her sick leave, Cajide
convened a meeting during which he informed the customer service
representatives, including Plaintiff, that the company would be
downsizing, but rather than fire anyone, DHL would reduce all
employees' shifts by approximately one hour. (Id., p. 3 at ¶
10, p. 4-5 at ¶¶ 14-15). Also, in light of their cost-cutting
efforts, DHL ordered an automated telephone system to be
installed on April 26. (Id., p. 4 at ¶ 10, p. 5 at ¶ 16). DHL
therefore determined that the automated system eliminated the
need for Plaintiff's position. (Id., p. 5 at ¶ 17).
At this point, numerous facts appear to be in dispute. At
around the time DHL determined that Plaintiff's job functions
would be eliminated by the automated telephone system, one of the
"undeliverables" customer service representatives, Janel
Bakserville, had informed the company she was leaving to go back to school. (Def. Facts, p. 6
at ¶ 22). Instead of terminating Plaintiff, Jensen decided to
offer Plaintiff Ms. Baskerville's position, which required a 2:00
pm to 10:00 pm shift. (Id., p. 6 at ¶ 21, p. 7 at ¶ 24). Cajide
and Jensen held a meeting with Plaintiff during the third week of
April during which, according to Jensen, she offered Plaintiff
Ms. Baskerville's position. (Id., p. 7 at ¶ 23). Upon
Plaintiff's objection to the later shift, Jensen and Cajide
agreed to offer her a 12:00 pm to 8:00 pm shift. (Def. Facts, p.
10 at n. 1). Plaintiff again refused, and DHL further
accommodated her by moving the shift to 11:00 am to 7:00 pm.
(Id.). Finally, Plaintiff refused that job because with her bus
schedule, she would still be getting home too late. (Def. Facts,
p. 10 at ¶ 39, n. 1). DHL suggests that Jensen and Cajide were
not aware of Plaintiff's diabetes at the time of the first April
meeting. (Id., p. 8 at ¶¶ 29-30). They knew she had been sick
in late March, but her doctor's notes did not mention diabetes
and did not place Plaintiff under any medical restrictions.
Plaintiff's version of the facts is remarkably different. In
direct contradiction to DHL's factual assertions, Plaintiff
testified at her deposition that she informed Jensen and Cajide
about her diabetes shortly after her return in early April.
(Dieujuste Dep., 144:11-21). Plaintiff also testified that at the
meeting in the third week of April, Plaintiff was only told that
her shift was being changed to 11:00 am to 7:00 pm. (Pl. Facts,
p. 13). There was no mention of a 2:00 pm to 10:00 pm shift. Her
bosses did not inform her that her position as station assistant
was being eliminated, or that she would be performing different
responsibilities as an "undeliverables" customer service
representative. (Id.). Plaintiff responded that she was under
medical care and would have to talk to her doctor. (Id., p.
15). She returned with the aforementioned May 6 doctor's note
which stated: "patient requires daytime work hours to allow her
to adjust her meals and rest periods. A change to evening hours could jeopardize her
health." (Affirmation of Philip Berkowitz, Exhibit 8). DHL did
not believe that Dr. Cavanaugh's May 6 note regarding Plaintiff's
inability to work evening hours restricted her from working 11:00
am to 7:00 pm. (Id., p. 9 at ¶¶ 32-34).
There are also discrepancies as to what took place after
Plaintiff presented Cajide and Jensen with the May 6 doctor's
note. It is undisputed that Jensen and Cajide told Plaintiff she
could take breaks when needed and eat at her desk in accordance
with her medical needs. (Dieujuste Dep., 182:3-13). According to
Plaintiff, Jensen and Cajide made it clear that Plaintiff had no
alternative to the 11:00 am to 7:00 pm shift. (Jensen Dep.,
51:19-53:10). Plaintiff also states that DHL made no other
efforts to accommodate her. (Pl. Facts, p. 22). Plaintiff asserts
that she even contacted human resources manager Anthony Medaglia
("Medaglia") to address her need for an accommodation, but he
suggested that she take the hours or resign. (Pl. Facts, p. 23).
Medaglia denied making that statement.
On or around May 13, 2002, Plaintiff went on leave and sought
further medical treatment. (Pl. Facts, pp. 23-24). She obtained a
note from Dr. Cavanuagh indicating she was being treated for
uncontrolled diabetes. (Zatuchni Cert., Exhibit L). According to
DHL, when Plaintiff went on leave, her decision to accept the
open position was still pending. (Def. Facts, p. 11 at ¶ 42).
While Plaintiff was on leave, DHL received two additional notes
from Dr. Cavanaugh dated May 25 and May 31 diagnosing Plaintiff
with anxiety and stress but clearing her to return to work in
early June. (Id., pp. 11-12 at ¶¶ 44-46). On May 31, Plaintiff
returned to work and submitted her resignation letter, citing
health reasons. (Zatuchni Cert., Exhibit O). After being told of
Plaintiff's resignation, Jensen became sad, hugged Plaintiff and
cried. (Def. Facts, p. 12 at ¶ 50). DHL did not hire a new station assistant after Plaintiff
resigned. (Def. Facts, p. 5-6 at ¶ 19). However, Plaintiff and
co-workers testified that Plaintiff continued to answer the
phones even after installation of the automated system. (Pl.
Facts, pp. 27-28). Finally, it is undisputed that DHL filled Ms.
Baskerville's position with a temporary employee working a 2:00
pm to 10:00 pm shift.
II. SUMMARY JUDGMENT STANDARD
A court shall grant summary judgment under Rule 56(c) of the
Federal Rules of Civil Procedure "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 and that the moving party is entitled to a
judgment as a matter of law." The substantive law identifies
which facts are critical or "material." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
On a summary judgment motion, the moving party must show,
first, that no genuine issue of material fact exists. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then
shifts to the non-moving party to present evidence that a
genuine, fact issue compels a trial. Id. at 324. In so
presenting, the non-moving party may not simply rest on its
pleadings, but must offer admissible evidence that establishes a
genuine issue of material fact, Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986), not just "some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
The Court must consider all facts and their logical inferences
in the light most favorable to the non-moving party. Pollock v.
American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.
1986). The Court shall not "weigh the evidence and determine the
truth of the matter," but need determine only whether a genuine
issue necessitates a trial. Anderson, 477 U.S. at 249. If the non-moving party fails to demonstrate proof beyond a "mere
scintilla" of evidence that a genuine issue of material fact
exists, then the Court must grant summary judgment. Big Apple
BMW v. BMW of N. Am., 974 F.2d 1358, 1363 (3d Cir. 1992).
The NJLAD, codified at N.J.S.A. § 10:5-1 et seq., prohibits
"any unlawful discrimination against any person because such
person is or has been at any time handicapped or any unlawful
employment practice against such person, unless the nature and
extent of the handicap reasonably precludes the performance of
the particular employment." N.J.S.A. § 10:5-4.1. Under the New
Jersey Administrative Code, the failure to offer reasonable
accommodations to an otherwise qualified individual with a
disability is but one form of prohibited behavior. See N.J.
Admin. Code tit. 13, § 13-2.5 (requiring an employer to "make a
reasonable accommodation to the limitations of an employee or
applicant who is a person with a disability, unless the employer
can demonstrate that the accommodation would impose an undue
hardship"). If the employee is unable to perform the job even
with the reasonable accommodation, the law does not impose a duty
to accommodate. See N.J. Admin. Code § 13-2.8(a).
Plaintiff's claim is based on DHL's alleged failure to provide
a reasonable accommodation for her diabetic condition. To make
out a prima facie case for failure to accommodate, the plaintiff
must offer proof that (1) plaintiff has a LAD handicap, (2)
plaintiff was qualified to perform the essential functions of the
job, with or without accommodation, and (3) plaintiff suffered an
adverse employment action because of the handicap. Conoshenti v.
Public Serv. Elec. & Gas Co., 364 F.3d 135, 150 (3d Cir. 2004)
(quoting Bosshard v. Hackensack Univ. Medical Center,
783 A.2d 731, 739 (N.J.Super.Ct. App. Div. 2001)). The Defendant concedes that, for purposes of this motion, Plaintiff's
diabetic condition is a LAD handicap, in satisfaction of the
first element. Defendant argues that Plaintiff cannot satisfy the
second or third prongs.
The Plaintiff counters Defendant's legal arguments by raising
important issues of fact that preclude summary judgment. For
instance, DHL argues that the 2:00 to 10:00 p.m. timing of the
shift was an "essential function" of the position labeled
"undeliverable packages customer service representative," and
because Plaintiff could not work evening hours under any
circumstances, she wasn't otherwise qualified for the job.
Plaintiff argues, however, that DHL never offered her the
"undeliverables" job, but instead simply implemented the shift
change as it related to her job as station assistant. So there is
a factual dispute as to what job is at issue in this case.
Similarly, DHL argues that Plaintiff refused to work the later
shift not because of her diabetes, but because of the commuter
schedule to which she had become accustomed during her long
tenure at the company. Plaintiff, citing to her deposition
testimony, argues vehemently that she never put her bus schedule
into issue when refusing the shift change. (Pl. Facts, pp.
16-18). This conflicting testimony presents the Court with
another crucial factual dispute that precludes summary judgment.
Quite simply, the parties tell two completely different stories
in this case. Both comport with the deposition testimony and
other evidence of record. When viewed in a light most favorable
to the non-movant, there are genuine issues of fact central to
this dispute that preclude summary judgment. An appropriate Order accompanies this opinion.