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Oliver v. Birchwood Adult Day Center

July 5, 2007

SANDFRA OLIVER, PLAINTIFF-APPELLANT,
v.
BIRCHWOOD ADULT DAY CENTER, TRACY ROBINSON, WILLIAM H. FROELICH, STEVEN FROELICH, AND JANET OCASCIO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, L-0412-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 12, 2006

Before Judges Axelrad, R. B. Coleman and Gilroy.

Plaintiff Sandfra Oliver appeals from a March 3, 2006, order granting a motion to reconsider a February 3, 2006, order that denied the motion of defendants, Birchwood Adult Day Center (Birchwood), Tracy Robinson, William Frohlich*fn1 , Steven Frohlich, and Janet Ocasio (collectively defendants) for summary judgment. After careful consideration of the record before us, we reverse the March 3, 2006 order and remand for further proceedings.

Plaintiff is a State licensed and certified social worker who became blind at the age of thirty-three due to meningitis. She has earned a Bachelor's Degree in Human Resource Management from the New Jersey Institute of Technology and a Master's Degree from Rutgers University. Her past employment includes a position as a Coordinator for the Resident Opportunity Self-Sufficiency Program with the Housing Authority of the Township of Woodbridge. Her responsibilities in that position included offering counseling to a caseload of approximately 170 families, managing the on-site computer center, implementing computer classes, and serving as the liaison between community groups and outside agencies. Prior to that, she was employed for two years as a social worker with the Housing Authority of Plainfield, where she assessed and managed residents for crisis intervention.

In June 2003, plaintiff responded to a newspaper advertisement posted by defendant Birchwood seeking a State licensed social worker "to provide case work and advocacy services to physically disabled adult program participants." Birchwood is an Adult Day Care facility located in East Orange. Defendant William Frohlich served as President and defendant Steven Frohlich served as the Administrator. At the time of the advertisement, Birchwood had one social worker, defendant Tracy Robinson, on staff. However, because the caseload was approaching a level that required, under N.J.A.C. 8:43F-12.2(c), a second social worker and because of its desire to lessen the burden on Robinson, Birchwood placed the advertisement for a social worker.

After receiving and reviewing plaintiff's resume, defendant Janet Ocasio, Birchwood's outside consultant, called plaintiff in for an interview. Ocasio claims that she did so even though plaintiff's resume showed that she did not meet all of the job requirements. On July 7, 2003, plaintiff interviewed separately with both Ocasio and William Frohlich, at which point they first became aware that plaintiff is blind. During the course of her interview with Ocasio, plaintiff discussed how she would be able to fulfill the requirements of the job and ways in which she would be able to compensate for her blindness. One tool discussed was a computer program named "JAWS" that scans documents and then reads back the scanned information. When plaintiff met with William, they discussed, among other things, how she would be able to review and produce documentation as required.

Following the interview, Ocasio apparently considered plaintiff as a viable candidate but she had concerns that plaintiff would not be able to perform the required outreach activities because of her inability to conduct "visual" assessments of clients' homes. Ocasio was also concerned whether plaintiff could perform intake activities and whether accommodations for her handicap might result in a significant and undue hardship to the program and other staff. Despite these concerns, a second interview with plaintiff was scheduled for July 9, 2003.

At the second interview, plaintiff met with Robinson alone, and then with Ocasio and Steven Frohlich. Ocasio and Steven questioned plaintiff about her ability to maneuver around the facility and about how she would fulfill her client intake duties. Plaintiff responded that she would use her cane or a seeing-eye dog, if necessary. As for her intake duties, she replied that she would label the eight different sections of each client's file in Braille and would work in the pertinent area of the file using the "JAWS" computer program.

Following this final interview, while plaintiff waited for her ride, Ocasio, Steven and William discussed their impressions. They felt that plaintiff had not proven that she could fulfill the essential functions of the job and that they would not adequately be able to accommodate her disability. They were concerned that hiring plaintiff would place an additional burden on Robinson, which was contrary to their goal of easing Robinson's burden. They decided not to hire plaintiff, and Ocasio returned to where plaintiff was waiting to inform plaintiff of that decision. Ocasio told plaintiff that although they was impressed with plaintiff's experience, education, and demeanor, they could not hire her because they did not believe that plaintiff would be able to maneuver around the building. Plaintiff contested this, stating that she had had no problem at her previous position and that Birchwood would not pose any significant problem for her. Ocasio then rubbed plaintiff's arm and replied, "I don't think you can maneuver this building. I can't hire you."

On August 25, 2005, plaintiff filed a complaint in the Law Division alleging that Birchwood and the named employees had violated the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, by refusing to hire her because of her disability and by failing to accommodate her disability. Following discovery, defendants moved for summary judgment. Oral arguments were heard on February 3, 2006, at which time, defendants contended that plaintiff had failed to make out a prima facie case under NJLAD.

After recounting the contentions of each of the parties, the judge denied defendants' motion for summary judgment because of questions of credibility concerning the true reason(s) for Birchwood's decision not to hire plaintiff, the bona fides of its position that plaintiff's educational background might create a tension between her and Robinson and an awkwardness of fixing the appropriate level of compensation. The judge reasoned, in part, as follows:

In the case as brought, defendant Birchwood has gone to great length to demonstrate that plaintiff Oliver lacked experience and would not have been able to perform the essential job functions with or without reasonable accommodation. In their brief, it has outlined nearly ever responsibility of its social workers and provided a ...


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