June 21, 2007
ROBERT BOYCE AND ROBIN BOYCE, HIS WIFE, PLAINTIFFS-APPELLANTS,
LUCENT TECHNOLOGIES AND SHARON KIRBY-MAGILL, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5047-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 16, 2007
Before Judges Cuff and Baxter.
Plaintiff*fn1 Robert Boyce filed a complaint against his former employer and a former co-employee that alleged that he was subject to sexual harassment by the co-employee, that his employer failed to intervene and remediate the hostile work environment, that his employer retaliated against him following his complaints of sexual harassment, and that his employer failed to provide a reasonable accommodation for a disability. He appeals from an order granting summary judgment in favor of his former employee and former co-employee, defendants Lucent Technologies and Sharon Kirby-Magill, respectively. We affirm.
The statement of material facts submitted in support of defendants' motion for summary judgment pursuant to Rule 4:46-2(a) reveals that the facts are largely undisputed. Plaintiff was employed as a Control Board Operator by defendant Lucent Technologies (Lucent) at the Holmdel facility. He commenced work in the control room of the facility in 1984 and met defendant Kirby-Magill at that time. Kirby-Magill holds the same position. Before his employment with Lucent, plaintiff served as a marine. He was six feet tall and weighed 200 pounds.
Plaintiff and Kirby-Magill have always been non-management employees and neither has ever supervised any employees. Both are members of the Communications Workers Union, Local 1062, and the terms and conditions of their employment are governed by a collective bargaining agreement.
In addition to plaintiff and Kirby-Magill, three other persons held the position of Control Board Operator: Donna Chevalier, William McHugh and Michelle Van Stevens. Control Room Operators rarely worked the same shift. Except for the 8 a.m. to 4 p.m. shift, the operators worked alone and saw each other only at the change of shift. Two operators were assigned to the day shift. Except for the operator assigned to "fifth shift," the operators worked swing shifts.
As of August 2001, plaintiff reported to Ronald A. Opitz. For the six preceding years, plaintiff and the other operators reported to James Canham. In addition to Opitz and Canham, four employees had some supervisory responsibilities for the employees in the control room: Dane Martindell, Robert Talarico, Bob Mohn, and Alan Becker.
In early 1999, plaintiff asserted that Kirby-Magill made five comments in his presence of a sexual nature that he found objectionable. Two comments referred to her breasts. She informed plaintiff that she and her husband wrestled nude, that their marriage was not founded on sex, and that her husband suffered from varicose veins in his penis. Plaintiff also alleged that Kirby-Magill showed him a Frederick's of Hollywood lingerie catalog and her chest x-ray.
Plaintiff also related that on one instance, Kirby-Magill was wearing a loose blouse. When she reached over his head for a set of keys, the blouse covered his head and her breasts rested on top of his head. Plaintiff also complained that Kirby-Magill wore tight-fitting and sexually provocative clothing.
Plaintiff complained to Canham but resisted filing a formal complaint against Kirby-Magill. He also conceded that he reported the incidents to protect himself "because in [his] opinion she had brought down more than one person and [he] wanted to go on record that [he] was not harassing her." Canham discussed the situation with personnel in the Human Resources Department who were responsible for equal opportunity and affirmative action matters.
A series of meetings with control board employees and their supervisors were conducted by human resources staff. Plaintiff informed human resources personnel of his complaints about Kirby-Magill. Although there is some dispute whether these meetings directly or even indirectly addressed plaintiff's sexual harassment complaint, plaintiff conceded that the objectionable comments ceased following these meetings. He contended, however, Kirby-Magill continued to dress in a provocative manner and that she and one of the supervisors occasionally administered shoulder and back rubs to each other in the control room.
Plaintiff had a social relationship with Canham, Martindell and Mohn. He played golf with them frequently. Based on conversations with Canham, plaintiff believed that he would be moved out of the control room. Plaintiff believed that he was the subject of retaliation following his complaints. Plaintiff cited a letter placed in his file by Martindell about his complaints. He was never moved from the control room. Plaintiff, however, did not loose any salary or benefits.
When plaintiff did not receive a promotion to the position of Plant Operating Mechanic in early 2001, he filed a grievance. The grievance proceeded through the second step but was unsuccessful.
Plaintiff went on disability status in November 2001 for stress and anxiety soon after Kirby-Magill returned to work following a six-month disability leave. By letter dated December 3, 2002, plaintiff's physician informed a Lucent physician, Dr. Shoner, that "[i]f Mr. Boyce is not placed in contact with the co-worker or supervisor employees responsible for the harassment, Mr. Boyce may return to his work environment and responsibilities."
In addition to the undisputed facts, viewing the record in the light most favorable to plaintiff, the non-moving party, the employer did not take plaintiff's complaints seriously. Canham told him to "grow up" and others were incredulous that plaintiff would complain of Kirby-Magill's alleged conduct. In addition, other employees thought that Kirby-Magill's attire was inappropriate but not necessarily sexually provocative.
Kirby-Magill testified that she was undergoing fertility treatments in early 1999 and the comments were not made to plaintiff but to her doctor. She explained that she was working the day shift at the time and the only opportunity she had to discuss her treatment with her doctor was during work hours, and the cramped conditions of the control room offered no privacy. She also related that she had been treated at Sloan-Kettering hospital and underwent a lumpectomy during this period of time.
In an oral opinion, Judge Mullaney granted defendants' motion for summary judgment and dismissed plaintiff's amended complaint. The judge held that the undisputed facts and the disputed facts viewed in the light most favorable to plaintiff failed to demonstrate a hostile work environment as alleged by plaintiff. The judge found that the incidents were isolated and sporadic and that plaintiff's reaction was not reasonable; therefore, the incidents could not create a hostile work environment. As to Kirby-Magill's attire, the judge observed that the employer does not have to protect plaintiff from "a co-employee wearing a short skirt" unless the attire is disruptive to the workplace. Notably, no other employee complained of her attire. Ultimately, the motion judge found that plaintiff was hypersensitive.
The Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, protects citizens of this State from discrimination in various aspects of their life. N.J.S.A. 10:5-12 specifically protects an employee from discrimination in the workplace. Lehman v. Toys 'R' Us, Inc., 132 N.J. 587, 600 (1993). Sexual harassment is a form of sex discrimination. Id. at 601. Hostile work environment sexual harassment is one of two recognized categories of sexual harassment. Ibid.
Generally, to state a claim for hostile work environment sexual harassment, a woman "must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment." Id. at 603. When a man alleges that he is the victim of hostile environment sexual harassment, in order to invoke the rebuttable presumption that the harassment occurred because of his gender, the man "must make the additional showing that the defendant employer is the rare employer who discriminates against the historically-privileged group." Id. at 605-06. See also Erickson v. Marsh & McLennan Co., 117 N.J. 539, 551 (1990). A male plaintiff is not required to show a wide pattern of discrimination against men by the employer, but he must establish more than his gender to raise an inference of discrimination. DeCapua v. Bell Atl.-N.J., Inc., 313 N.J. Super. 110, 122-23 (Law Div. 1998). See also Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993).
Measured by this standard, plaintiff has failed to establish that a reasonable man would have perceived his working environment altered. Plaintiff and his alleged harasser worked together for fifteen years before her conduct was deemed offensive by plaintiff. Although they shared the same job title and performed their work duties in the same place, they actually worked together only when they were assigned to the same shift. In other words, they did not share the same shift on a daily basis.
The complained of acts occurred within a short period of time in early 1999 and ceased after the "team building" meetings conducted by the human resources department. To be sure, the shoulder rubs occurred sporadically. Therefore, a review of the record, however, suggests that plaintiff was annoyed by Kirby-Magill's conduct because her familiarity with supervisors afforded her more privileges at the workplace rather than a belief that her conduct was sexually provocative and offensive.
A motion for summary judgment should be granted when the facts are so one sided that a reasonable jury could not find in plaintiff's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This standard is, of course, informed by the law governing the claim asserted by plaintiff. Id. at 529. In this reverse discrimination hostile work environment claim, plaintiff has not marshaled the facts that would allow a jury to find that the conduct of the co-worker was severe and pervasive enough to make a reasonable man believe that the conditions of his employment had been altered. Thus, summary judgment was properly granted to dismiss not only the sexual harassment but also the retaliation claim.*fn2
The motion judge did not address plaintiff's claim that defendant Lucent did not reasonably accommodate his disability. Lucent suggests that the judge's discussion regarding the nature of co-defendant's dress was related to the accommodation claim. Plaintiff's accommodation claim, however, extended far beyond Kirby-Magill's attire. Nevertheless, we hold that the reasonable accommodation claim failed as a matter of law.
Plaintiff went on disability leave in November 2001 due to stress and anxiety. In December 2002, plaintiff desired to return to work, and his physician opined that he could do so as long as he was assigned to a position in which he had no contact with those who had harassed and retaliated against him. This set of employees included not only Kirby-Magill but also all of his supervisors. Thus, the accommodation plaintiff sought required a position other than Control Board Operator.
N.J.S.A. 10:5-4.1 prohibits discrimination in employment due to disability "unless the nature and extent of the disability reasonably precludes the performance of the particular employment." See also N.J.S.A. 10:5-29.1. "'The LAD does not specifically address reasonable accommodation, but our courts have uniformly held that the law nevertheless requires an employer to reasonably accommodate an employee's handicap.'" Potente v. County of Hudson, 187 N.J. 103, 110 (2006) (quoting Tynan v. Vicinage 13 of Super. Ct. of N.J., 351 N.J. Super. 385, 396 (App. Div. 2002). See also Raspa v. Office of the Sheriff of the County of Gloucester, ___ N.J. ___, ___ (2007) (slip op. at 14-15). The Division on Civil Rights has promulgated regulations that detail the specific requirements of reasonable accommodation in the workplace. N.J.A.C. 13:13-1.1 to -2.8.
N.J.A.C. 13:13-2.5(b) provides that an employer "must make a reasonable accommodation to the limitations of an employee . . . who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business." Four factors govern whether an accommodation would impose an undue hardship on the operation of an employer's business: the size of the business; the type of operation, including the composition and structure of the workforce; the nature and cost of the accommodation; and the need to waive essential requirements of the job. N.J.A.C. 13:13-2.5(b)3i-iv. Whether an employer has failed to provide a reasonable accommodation will be considered on a case-by-case basis. N.J.A.C. 13:13-2.5(b). See also Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 363 (App. Div. 1994), certif. denied, 142 N.J. 446 (1995).
This State has frequently resorted to federal law to interpret the LAD as it follows in certain instances federal substantive and procedural standards. Raspa, supra, ___ N.J. at ___ (slip op. at 19-20); Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002). This is particularly true in employment discrimination matters, although the LAD is more expansive and offers more protection in certain instances. Tynan, supra, 351 N.J. Super. at 397-98. For example, disability is more broadly defined under the LAD than the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 to 12213. Id. at 398.
An employee presents a prima facie case of failure to provide a reasonable accommodation when the employee is disabled as defined by the LAD, the employee is otherwise qualified to perform the essential functions of the job, and he has suffered an adverse employment decision as a result of the discrimination based on his disability. Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996). A request for a reasonable accommodation in the workplace may be oral or written. The employee also does not have to explicitly request a "reasonable accommodation." Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999). When an employee clearly expresses a desire for assistance based on a disability, the employer is obliged to engage in an interactive process to attempt to fashion an "'appropriate reasonable accommodation.'" Id. at 312 (quoting Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997)); Tynan, supra, 351 N.J. Super. at 400. Once the employee makes a facial showing of discrimination, the burden is placed on the employer to demonstrate that a reasonable accommodation cannot be provided to the disabled employee. Ensslin, supra, 275 N.J. Super. at 363.
Two cases are particularly helpful in our consideration of Lucent's response to plaintiff's request for an accommodation due to his diagnosed stress and anxiety disorder and whether summary judgment was appropriate on this claim. In Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 1998), the plaintiff suffered from depression and anxiety-related disorders. The district court held that his proposed accommodation of a transfer to a position where he would not be subject to prolonged and inordinate stress by co-workers was unreasonable as a matter of law, id. at 577, and the Court of Appeals agreed. Id. at 581. Judge Cowen held that Gaul must demonstrate that he had the ability to perform the essential functions of his job. Id. at 580. In order to satisfy that burden, Gaul had to make a facial showing that his proposed accommodation was possible, and that the costs associated with the accommodation were not clearly disproportionate to the benefits. Id. at 580-81. Once he established this facial showing, his employer would be required to prove as an affirmative defense that the requested accommodation was unreasonable. Id. at 581.
The court proceeded to hold that Gaul failed to satisfy his burden because his proposed accommodation was wholly impractical for any employer, that it would impose extraordinary administrative burdens on his employer, and that the court should not be placed in a position whereby it establishes the terms and conditions of a plaintiff's employment. Id. at 581. In short, the "proposed accommodation was unreasonable as a matter of law." Ibid.
In Tynan, supra, this court addressed a request for accommodation by a judiciary employee who also suffered from a variety of disabling conditions, including a stress and anxiety disorder. 351 N.J. Super. at 399. Tynan had been employed for many years and had an unblemished record, despite several medical conditions, until a new person was assigned as her supervisor. Id. at 403. Following an extended period of disability leave, plaintiff requested to return to work, but she did not want to have to report to her current supervisor. Id. at 394. In the alternative, she requested that if she had to communicate with her supervisor that she do so only in writing. Id. at 401.
We held that summary judgment in favor of the employer should not have been granted for two reasons. First, the employer had failed to engage in an interactive process with the employee to seek to fashion a reasonable accommodation. Id. at 402. Second, we held that Gaul was distinguishable on its facts. Id. at 403. We stated:
Gaul, unlike Tynan, could not work under any stress or tension. . . . [A]ny tense situation incapacitated Gaul. The only accommodation Gaul requested was a transfer whenever he decided he was stressed. Such an accommodation was unreasonable as a matter of law. In contrast, Tynan's work record before [her current supervisor] was unblemished. Most of the difficulties [the current supervisor] had with Tynan appear to be trivial and perhaps personality based. The two employees seem to have had some confusion over their respective roles. Furthermore, the vicinage has stated that if Tynan had requested a transfer to another title, that might have been accommodated. [Ibid. (citation omitted).]
We also observed that if a lateral transfer was not available, a reasonable accommodation might have included a position at a lower rank. Ibid.
We, too, consider this case distinguishable from Gaul. Boyce did not request that he be placed in a situation in which he would not be exposed to any stress. He asked that he not work with his former co-workers or supervisors because interaction with them would aggravate his stress and anxiety-related disorder.
On the other hand, unlike Tynan, plaintiff has failed to present any facts to establish his burden that the accommodation he requested was possible, let alone reasonable. This is not a heavy burden; plaintiff simply had to make a facial showing that the accommodation he requested was reasonable. He has not done so. Plaintiff did not have to present irrefutable evidence that other positions existed to which he could be assigned. He did, however, have to present some evidence that other positions were available to which he could be assigned that would eliminate or minimize his contact with former co-workers and supervisors. Shiring, supra, 90 F.3d at 832.
Our review of the record reveals that the only mention of other positions was the position to which plaintiff hoped to have been promoted. His failure to obtain that promotion was related to his retaliation claim. It had no relation to his request for a reasonable accommodation. Thus, even though plaintiff clearly expressed a request for an accommodation and the employer did not engage in the interactive process imposed on it, plaintiff did not make a facial showing that the accommodation sought by him was reasonable. We, therefore, affirm the order granting summary judgment in favor of defendants and dismissing plaintiff's amended complaint.