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Heusser v. New Jersey Highway Authority

March 20, 2008

MICHAEL HEUSSER, RESPONDENT,
v.
NEW JERSEY HIGHWAY AUTHORITY, APPELLANT.
MICHAEL HEUSSER, APPELLANT,
v.
NEW JERSEY HIGHWAY AUTHORITY, RESPONDENT.



On appeal from a Final Order of the Division on Civil Rights, Docket Nos. EB23HB-33396, EB27HL-33396.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 7, 2008

Before Judges Parrillo, S.L. Reisner and Gilroy.

After an administrative determination of handicap discrimination, the Director of the Division on Civil Rights awarded complainant, Michael Heusser, $97,198 for emotional distress, back pay and overtime pay, and interest, and $456,082.22 in counsel fees. On appeal, respondent New Jersey Highway Authority (Authority) challenges both the discrimination finding and counsel fee award. On his appeal, complainant argues the award of emotional distress damages and counsel fees should have been greater. We affirm in all respects.

According to the proofs adduced during the twenty-one day hearing before the Administrative Law Judge (ALJ), complainant was born with cerebral palsy, which affects his coordination and balance. Yet he is able to perform life's functions remarkably well. Recreationally, he bowls, hunts, engages in archery, fishes, canoes, swims, rides a two-wheel bicycle and lifts weights. In addition, complainant played baseball, soccer and football and had been on a wrestling team in high school.

Complainant also drives and has a commercial driver's license (CDL) with air-brake, tanker and hazardous material endorsements. In the past, he has driven a standard-shift Ford Ranger truck, which had no special equipment to accommodate his disability. Working for a landscaper, complainant cut lawns on rider mowers, did weed whacking, used a backpack blower, shoveled mulch and stone and engaged in the construction of railroad-tie walls.

Complainant was first hired by the Authority on September 27, 1987 as a utility person performing janitorial functions. At that time, the Authority maintained and operated the Garden State Parkway (GSP) and the Garden State Arts Center.*fn1

Complainant's main responsibilities were the cleaning of the toll areas - sweeping and mopping floors, receiving and storing supplies, shoveling snow, sweeping sidewalks and walkways, and picking up litter in and around the loading dock area. In the course of his duties, complainant had to walk across live traffic lanes, carry twenty-pound bags of garbage and use a shovel to remove snow and to spread salt in icy weather. Complainant also drove a Parkway van without difficulty. According to his supervisor, Joseph Turant, during an eight-hour day complainant "performed everything that he had to accomplish[,]" and performed satisfactorily.

In response to a job vacancy notice, complainant applied for a maintenance person 1 (MP1) position in the Authority's maintenance department. Although a promotion, the position shared some similar duties with the utility person position. Complainant's application was endorsed by Ollie Davis, the Authority's affirmative action and public agency compliance officer. The position required passing a medical examination and successfully completing a six-month probationary period, which could be extended for another six months. Following a check-up, complainant was cleared as "physically able to perform" without restriction. On February 5, 1992, complainant was promoted to the MP1 position.

A May 5, 1992 Authority memorandum enumerated the job duties of the maintenance department: hand roadway mowing; roadway mowing (involving tractors with 3-wing mowers and smaller tag-along mowers); sign maintenance and installation; bridge deck and bridge maintenance; waste management; stone/slope/berm protection (requiring the employee, among other things, to drive and operate dump trucks and to have a CDL); drainage maintenance and installation; janitorial duties; fence installation and repair; painting; sealing; delineator maintenance; concrete patch and maintenance; litter removal (requiring the employee to have a CDL, have the ability to lift heavy objects, walk a number of miles a day, have good hand and arm coordination and good balance on uneven ground); snow removal; degreasing and traffic safety (requiring the employee to "drive a medium to large size dump truck, rack body and small pickup along with tow behind arrow boards" and to place safety cones requiring "a certain amount of twisting, turning, bending, lifting and coordination"). Of all these duties, litter control was the most commonly performed job by maintenance personnel in 1991 and 1992 according to a union shop steward.

Complainant was assigned to the Clark Maintenance Yard under the supervision of Michael Crilley, who assigned different tasks to crew members on a daily basis. In assigning tasks, Crilley would take preferences and requests into consideration as well as an individual's skill or ability.

Less than two weeks into the position, Crilley observed complainant stumble and fall on a few occasions. The first time was on February 18, 1992, when complainant, while on litter patrol on a level grassy area, fell about ten to fifteen feet from the roadway. He was not injured, however, and picked himself up and continued with his job. Three days later, complainant fell while walking up a slope with a steel bladed weed-whacker. Crilley had complainant stop weed-whacking and "go on litter for the rest of the day." Although nylon cord weed-whackers are used most of the time outside the winter months when steel blades are needed to cut heavy brush, Crilley never considered whether complainant could use the nylon-cord machine.

Complainant also encountered some difficulty performing the "cone-out" procedure, used to close a portion of the roadway. During the process, two men stand on the back of a moving truck; one individual takes a cone from a stack and puts it on a ledge and the other person, located on the back tailgate in a cage, turns to retrieve the cone and place it on the road surface. Crilley had complainant try both positions; he had trouble with both and, while in the upper position, complainant "couldn't pull the cones off of the stack and put the cones on the truck and balance himself at the same time." Crilley saw complainant stumble and bounce off the side of the truck and off the cones. Complainant was tried at the "cone-out" procedure on only one occasion even though, as Crilley acknowledged, it takes a new person more than one cone-out "[t]o get the hang" of it.

On another occasion, Crilley assigned complainant to shovel a pile of Silvex, a pot-hole patching compound, onto the back of a truck. Complainant had difficulty balancing himself and fell into the truck. While Crilley was not concerned because the Silvex was located in the yard, he believed it would be unsafe should complainant lose his balance shoveling Silvex while on the road near live traffic.

Crilley documented these observations as well as his safety concerns. Only one or two weeks after complainant's transfer to maintenance, District Superintendent John Minella advised Dan Noxon, the Authority's Chief Maintenance Engineer, that complainant "was unable to perform some of the duties" and that there was a concern about his getting through the probationary period. At an initial meeting among Noxon, Minella and Crilley, the three "were pretty much convinced that [complainant] was going to be unsatisfactory in his probation [sic] period[.]"

At another meeting among these three men and Grady McMillon, the Authority's labor relations manager, and Davis, the Authority's affirmative action officer, Noxon advised that "it would be unsafe for [complainant], for his co-workers and even for our patrons to continue him in that position and that it was going to be our intent, barring any serious objection from them, that we were going to return him to his original position." Noxon concluded, based on Crilley's observations, "that there was not a significant portion of that job that [complainant] could do[,]" including litter pickup. During the meeting, there was no discussion of whether any protective equipment, other than normal safety equipment, was available to mitigate the stated safety concerns. At the conclusion of the meeting, all attendees agreed that complainant could not safely perform the maintenance job. As a result, complainant was transferred back to the utility position effective March 4, 1992, only one month after his promotion. Notably, complainant was not invited to attend either meeting.

Complainant was demoted despite his proven abilities in the past. For instance, Francisco Jaconetta, for whom complainant once worked as a landscaper, trained complainant to operate ride-on and push mowers that were similar to those used by the Authority, and to use a nylon cord weed-whacker similar to those used by the Authority. Complainant had no difficulty with either type of mower or using the weed-whacker machine on any terrain. Indeed, while working as a landscaper, complainant used a backpack blower and shoveled mulch and stone without observable difficulty. Once or twice during a two-year period, Jaconetta and complainant took turns using a sixteen-pound sledge hammer while the other held a wooden stake. Jaconetta also vouched for complainant's driving ability, rating him "[v]ery good," never having seen complainant stumble or fall getting in and out of any of his trucks, which were the same size step-up as trucks used by the Authority.

Leonard Anderson, an accommodation planning consultant and a provider of engineering for persons with disabilities, videotaped complainant using landscape equipment on irregular, hilly terrain in rural upstate New York in November 1998. During this time, complainant did not fall, lose his balance or incur any injury while using a weed-whacker, a rider mower, a power hedge trimmer, an improvised litter stick or while shoveling or using a wheelbarrow. According to Anderson, complainant possessed a normal level of maturity and judgment with respect to safety and risks. Based on his observations, Anderson opined that complainant was capable of performing litter collection, snow plowing, mowing and degreasing in 1992, with accommodations, without posing materially enhanced risks of serious injury. Furthermore, according to Anderson, the Authority could have accommodated complainant by permitting him to drive the coningout truck or follower truck during coning-out operations; by affording him additional training and practice with respect to shoveling; by permitting him to use a nylon-cord weed whacker with a shut-off device; by requiring him to remain near the safety truck during litter operations and by installing grab- bars on trucks. These accommodations, according to Anderson, would have cost the Authority little or nothing.

Richard Drach, a disability compliance expert, agreed that complainant could have performed the MP1 job with reasonable accommodations. According to Drach, in determining what reasonable accommodations should be offered to a disabled worker, an employer must undertake three steps: 1) analyze the essential functions of the job by reviewing the job description and by considering what is actually done on the job; 2) involve the employee and inquire what that individual needs to be accommodated, and 3) seek the input of others including management, the union, and outside private and governmental resources. Actually, the disabled employee is "the key person in any kind of discussion[] about an accommodation" because that person knows his or her limitations and what he or she can do. Even if the employee believes that he or she could perform, and the employer is of the opposite opinion, the employer, according to Drach, must nevertheless go through the process to determine whether a reasonable accommodation could be made. In this case, Drach "saw no evidence" that the Authority "had gone through a process that would have determined that there was not a reasonable accommodation that could be made in each of those areas that they had a concern in."

Specifically, as to complainant, Drach concluded that the Authority should have considered: 1) allowing him to use a nylon cord weed-whacker or a smaller shovel and looked into protective personal equipment and grab-bars on trucks; 2) job restructuring by permitting him to exclusively drive during cone-outs or by permitting him to perform litter removal some distance away from the flow of traffic, and 3) providing additional training time to learn how to perform the job safely. Such reasonable accommodations would have allowed complainant to perform the MP1 job satisfactorily. Drach based this ultimate conclusion, in part, on the fact that complainant had been medically cleared for the MP1 position without restrictions; that he had performed satisfactorily in the utility position; and that there were similar duties involved in both positions.

Complainant's demotion affected him both financially and emotionally. He began therapy in February 1994, presenting with symptoms of anxiety, depression and anger. However, about oneand-one-half years later, on October 11, 1995, complainant became a toll collector for the Authority and has since successfully completed his probationary period. He is happy "about holding the job and about being able to succeed"; is earning more money than a third-year MP1 because of a shift differential; has married and purchased a home; and is no longer seeing a psychologist. As a toll collector, complainant carries seventy-pound money vaults and uses a walk-behind forklift across the entire GSP in all kinds of weather. He has had no difficulty accessing the toll booths and has experienced no falls.

On March 11, 1992, complainant filed a complaint with the Division alleging that the Authority discriminated against him based upon his physical handicap when it demoted him from the position of MP1 back to a Utility Person's position. He sought "whatever relief is provided by law including, but not limited to, compensatory damages for economic loss, and humiliation, mental pain and suffering." An amended complaint charged the Authority with failure to provide complainant with reasonable accommodations that would enable him to perform his job.

The matter was transmitted to the Office of Administrative Law (OAL), where it was tried from January 9, 1995 to November 8, 1996. Following the close of evidence, the ALJ, in an initial decision of August 6, 1997, concluded that while complainant established a prima facie case of discriminatory treatment, the Authority successfully established that "the nature and extent of [complainant]'s disability reasonably precluded his performance in the Maintenance Person I position on the basis that [he] posed a safety danger to himself and others" and that the "Authority showed that it made reasonable efforts to accommodate [him] but that no reasonable accommodation was possible."

On February 5, 1998, the Director reversed the ALJ's dismissal, concluding that the Authority unlawfully denied [complainant] employment based on generalized assumptions made with insufficient analysis of his abilities, limitations, and the possibilities of reasonable accommodations that were not shown to cause undue cost or difficulty. . . . [and] failed to establish that it reasonably evaluated the [complainant's] abilities and the possibility of providing reasonable accommodation before determining that . . . [his] disability precluded his safe performance of the essential job duties of his position.

In so concluding, the Director found the Authority "failed to seek input from the [complainant] or to acquire an objective analysis from a physician or vocational rehabilitation expert regarding the nature of the complainant's limitations and possible accommodations." Instead, the Authority returned complainant "to his lower paid position during the initial weeks of his six-month probationary period based largely on the recommendation of supervisors who made untrained, general conclusions about . . . [complainant's] abilities and about the availability of effective accommodation." Ordering the Authority to "cease and desist from doing any act prohibited by the" New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:1-1 to -12, and from engaging in retaliation, the Director remanded the case to the OAL for further determination of remedies in accordance with the standards set forth in [the] order. Specifically, the ALJ shall fashion an appropriate award of pain and humiliation damages and reasonable attorneys fees, and shall assess a statutory penalty against the [Authority]. The ALJ shall also consider additional arguments and evidence of the parties to determine, in accordance with the standards detailed [in the order], whether the [complainant] could have performed the essential job duties of the Maintenance Person I position with reasonable accommodation. If the ALJ resolves this question in the affirmative, she shall fashion an appropriate award of back pay with interest and address the remedy of reinstatement.

In his June 14, 2001 Partial Initial Decision after remand, the ALJ awarded complainant: 1) $25,000 "for the emotional pain, psychological stress and humiliation he suffered[,]" and 2) $34,190 for back pay, $19,249 for back overtime pay with interest of $24,795, calculated pursuant to court rules.*fn2 In the course of his decision, the ALJ concluded that: 1) the Authority had an "absolute obligation" to provide complainant with reasonable accommodations; 2) the Authority "failed to demonstrate that it addressed the matter of reasonable accommodation(s) in any meaningful way, thus permitting inferences to be drawn to the effect that its minuscule efforts were de minimis and inadequate in nature and that it could have done a lot more by exploring other options"; and, 3) the record is devoid of evidence tending to demonstrate the occurrence of undue hardship to the Authority if any one or more of a number of referenced reasonable accommodations were provided to complainant since the MP1 position involved a great multiplicity of tasks. Had the Authority provided complainant with one or more of these "reasonable accommodations," complainant "would have been enabled to perform the essential job duties" of the MP1 position without endangering himself, other employees or the Authority's customers, because: "(a) the deficits of his mild disability would have been rendered congruous; and, (b) those valid concerns of the [Authority] about safety and the potential for harm would have been adequately guarded against."

In a Determination and Order dated December 27, 2001, the Director adopted the ALJ's conclusion that the Authority failed to prove that complainant "could not safely fulfill the essential requirements of the MP1 position with reasonable accommodations, and that effective accommodations would impose an undue hardship on [the Authority]." However, the Director modified the ALJ's recommended decision only to the extent of reducing the emotional distress damages to $15,000. In the course of his decision, the Director noted that, while the Authority may be correct in asserting that an employer "is not in all cases required to include" the employee in such discussions, the Authority's failure to gather complainant's input was evidence that its "decision was not reasonably arrived at." Furthermore, evidence of complainant's safe work performance in his current position, which requires, among other things, "walking in live traffic lanes between toll booths pulling a forklift-like apparatus and lifting and carrying full coin vaults (weighing at least 70 pounds) in all weather conditions," further supported the conclusion that complainant's "disability did not result in a materially enhanced risk of serious harm to himself or others."

In his March 11, 2005 Partial Initial Decision, Part II, the ALJ awarded complainant $380,068.86 in attorney's fees and costs. Based upon a September 12, 2003, amendment to the LAD (N.J.S.A. 10:5-17) which provides that "a prevailing complainant may recover damages to compensate for emotional distress caused by [a violation of the LAD] to the same extent as is available in common law tort actions," complainant moved for reconsideration of the Director's December 27, 2001 Determination and Order, which reduced the emotional distress award to $15,000. The Director denied that application as untimely. In a Determination and Order dated August 30, 2005, the Director increased the ALJ's recommended attorney's fees and costs award to $456,082.22.

The Authority appeals from the Director's Orders of February 5, 1998, December 27, 2001, and August 30, 2005, finding discrimination and fixing the amount of counsel fees. Specifically, the Authority raises the following issues as to the finding of discrimination:

I. DID THE DIRECTOR ACT IMPROPERLY BY APPLYING THE REQUIREMENT OF AN INTERACTIVE PROCESS TO THIS MATTER?

II. DID THE DIRECTOR ERR WHEN HE REJECTED THE AUTHORITY'S CONCLUSION THAT [COMPLAINANT] COULD NOT PERFORM THE ESSENTIAL FUNCTIONS OF THE MAINTENANCE PERSON I POSITION WITH OR WITHOUT REASONABLE ACCOMMODATION?

III. DID THE DIRECTOR IMPROPERLY REJECT THE AUTHORITY'S DETERMINATION THAT [COMPLAINANT] COULD NOT PERFORM THE FUNCTIONS OF HIS POSITION WITHOUT POSING A SAFETY, HEALTH AND WELFARE RISK TO HIMSELF AND OTHERS?

As to counsel fees, the Authority presents the following issues:

I. DID THE DIRECTOR ERR BY NOT CONSIDERING THE AUTHORITY'S STATUS AS A PUBLIC ENTITY WHEN DETERMINING THE AMOUNT OF ATTORNEY'S FEES TO AWARD [COMPLAINANT]?

II. DID THE DIRECTOR ERR IN CONCLUDING THAT THERE SHOULD BE NO PROPORTIONALITY BETWEEN THE RESULT ACHIEVED FOR [COMPLAINANT] AND THE COMPENSATION AWARDED [COMPLAINANT'S] COUNSEL?

III. DID THE DIRECTOR ERR BY INCREASING THE HOURLY RATE OF [COMPLAINANT'S] ATTORNEYS, PETER VAN SCHAICK AND LOUIS S. RAVESON, TO $350 AND $300 AN HOUR, RESPECTIVELY?

IV. DID THE DIRECTOR IMPROPERLY INCLUDE THE FEES PREVIOUSLY PAID TO PER DIEM ATTORNEYS IN THE LODESTAR?

V. DID THE DIRECTOR ERR BY INCLUDING JEFFREY'S DUPLICATIVE HOURS IN THE LODESTAR?

VI. DID THE DIRECTOR ERR BY ADDING A POSITIVE MULTIPLIER?

VII. DID THE COURT ERR IN RELYING UPON THE CONCLUSIONS OF ANDREW DWYER, ESQ. IN FASHIONING A FEE AWARD?

On his appeal, also challenging the counsel fee award, as well as the reduction in emotional distress damages, complainant raises the following issues:

I. DID THE DIRECTOR ERR BY REFUSING TO RECONSIDER HIS REDUCTION OF THE EMOTIONAL DISTRESS AWARD?

II. DID THE DIRECTOR ERR BY NOT AWARDING FEES FOR THE LEGAL SERVICES OF ABRAHAM, LONDON AND JEFFREY BASED ON THEIR CURRENT MARKET RATES?

III. DID THE DIRECTOR ERR BY AWARDING [COMPLAINANT] ONLY A 10% MULTIPLIER FOR RISK ...


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