On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-8855-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Axelrad, Payne and Messano.
Plaintiff, Karen Winters, appeals from an order of summary judgment dismissing her complaint against her employer, defendant Sharp Electronics Corporation, filed pursuant to the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, for disability discrimination, failure to accommodate, retaliatory discharge, and constructive discharge.
On appeal, plaintiff makes the following arguments:
THE TRIAL COURT ERRED IN ESTOPPING PLAINTIFF'S DISCRIMINATION CLAIM SINCE THE QUESTION OF WHETHER PLAINTIFF WAS UNABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF HER JOB AS OF JULY 1, 2002 IS A JURY QUESTION.
A. THE COURT ERRED IN ITS INTERPRETATION OF CLEVELAND v. POLICY MANAGEMENT SERVICES.
B. PLAINTIFF WINTERS' APPLICATION FOR SSDI BENEFITS DOES NOT DENUDE HER LAD CLAIMS.
C. JUDICIAL ESTOPPEL DOES NOT APPLY.
THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT BECAUSE THE QUESTION OF WHETHER PLAINTIFF WAS REASONABLY ACCOMMODATED THROUGH THE INTERACTIVE PROCESS IS AN ISSUE OF FACT.
THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S RETALIATORY DISCHARGE CLAIM AS PLAINTIFF MADE A PRIMA FACIE CASE.
THE TRIAL JUDGE IGNORED PLAINTIFF'S CLAIMS THAT SHE WAS DISCRIMINATED AGAINST DUE TO HER DISABILITY (DISPARATE TREATMENT).
The record discloses that plaintiff was employed by Sharp for thirteen years as a claims adjustment analyst. On August 14, 2001, she sustained injuries to her back and knees in a fall in Sharp's parking lot, but returned to work on the following day. A worker's compensation claim was opened at this time.
According to the file maintained by Helen Hark, Sharp's Benefits Manager, she was notified in May 2002 that plaintiff had been experiencing back pain since April, which plaintiff associated with her fall eight months earlier. Although a consultation with a neurosurgeon was initially contemplated, after a spinal MRI was negative, plaintiff instead commenced physical therapy. At that time, plaintiff determined not to pursue a workers' compensation claim. Plaintiff was permitted to attend physical therapy appointments during the work day.
On May 22, 2002, plaintiff made a request, supported by a letter from her physical therapist, for a special chair to accommodate her back problems and reduce the pain associated with them. The request was approved on May 24, 2002 and, shortly thereafter, plaintiff was offered a catalogue of chairs from which, following consultation with her physical therapist and physician, plaintiff picked a chair that met her specifications. There is no question that the chair was ordered on June 14, 2002, although a dispute remains as to its date of arrival.*fn1 In the interim, plaintiff was offered her choice of existing available chairs.
At some time after June 14, 2002, plaintiff was informed that she had not punched in on the company's time clock at required times on June 5, 7 and 10. That notice led to a memo from plaintiff to various Sharp personnel, dated June 19, 2002, in which she stated that she had been taking the narcotic pain killer Vicodin for the past two weeks because of a flare-up of back pain that had made it difficult to walk, and that the medication made her forgetful. She then attested to the fact that she had been at work on the days in question, and stated: "I am now trying to not take this medication but if my back still is a problem I will have to decide then what I should do about this problem." In a second memorandum, written on the same day, plaintiff inquired what her pay would be if she were to take a short-term disability leave, and the maximum period of such a leave. She also inquired whether she could apply for workers' compensation while continuing to work on days when she was able to do so. Benefits manager Hark's notes indicate that, at that time, she spoke to plaintiff regarding her safety asking, if she could not remember to punch her time card, whether she should be at work or driving a car. According to Hark, plaintiff was told at that time that if she continued to take Vicodin, the company would need a note from plaintiff's physician indicating that she was cleared for work and driving. Hark recorded that workers' compensation benefits were also discussed, and plaintiff was advised to consult with her doctor as to whether her condition were work-related. Plaintiff denies this conversation, except to admit that she mentioned workers' compensation to Hark, who appeared irritated at the suggestion that plaintiff thought herself eligible for benefits.
On June 27, 2002, plaintiff's supervisor, William Munster, contacted Hark, stating that for the past six months, he had noted that plaintiff was undergoing mood swings, that she left early as the result of back pain, and had utilized all of her sick time. Munster stated further that, on occasion, plaintiff had lain on the floor of her cubicle, complaining of back pain and numbness in her legs. She had worked approximately twenty-six hours in the past two weeks. On the same date, plaintiff indicated to the company's workers' compensation carrier that she wished to reopen her claim. She was referred for an independent medical examination by Dr. Snyder.
A meeting between Hark, Munster, plaintiff, her union representative, and others occurred on July 1, 2002. According to Sharp's documents, at the meeting, plaintiff was advised to leave work until she could provide documentation from her physician that it was safe for her to work and to drive. Plaintiff was advised further that her absence from work would be unpaid, her sick time having been used, unless she wished to utilize vacation time. However, short-term disability insurance benefits and possible workers' compensation were discussed.
Plaintiff claimed at her deposition that at the meeting she was told not to return until she was 100% better, and that "[n]o one mentioned bringing a doctor's note." However, in a grievance dated July 8, 2002, plaintiff acknowledged she had been told at the meeting "not to return to work without a note from my doctors saying that I could work." In discovery, she also admitted that Sharp had agreed to reevaluate her ability to return to work in light of the information provided.
Plaintiff has also noted that in his deposition, her supervisor, Munster, stated that he was surprised that the company had taken the action that it did. However, she has not contested the amount of pain she was experiencing at the time, the amount of Vicodin she was taking, or the effects of such medication. Nor has she offered any proof that it was unreasonable for Sharp to ...