On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1503-03.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Simonelli.
In this employment discrimination matter, defendants, the State of New Jersey (State), the New Jersey State Police (NJSP), Lieutenant Paul Wagner, Sergeant Eric Estok, and Donald Izzi, M.D., appeal from the denial of their motions for a judgment notwithstanding the verdict and/or new trial.*fn1 Plaintiff cross-appealed, arguing the trial court improperly limited his claim for damages.
Plaintiff alleged discriminatory treatment based upon race and medical disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff's complaint included an allegation that the NJSP failed to accommodate plaintiff's physical disability. As to that claim, we address whether plaintiff has an affirmative obligation to prove he suffered an adverse employment action as a result of his employer's failure to accommodate his disability. Following our review of the law, we answer this question affirmatively, and because the jury was not requested to separate the damages resulting from this claim, we are constrained to reverse and remand for a new trial.
Plaintiff Roy Victor began his career as a New Jersey state trooper on April 10, 1986. Generally, troopers are promoted to "Trooper II" after seven years service in the NJSP system and to "Trooper I" after nine and one-half years of service. Plaintiff received each of these promotions. He was assigned to the Totowa NJSP Substation as a Trooper I. When plaintiff's causes of action accrued, Wagner was the Totowa Station Commander, Estok was the Totowa Squad Sergeant, and Dr. Izzi was NJSP's director of medical services to whom each troop division doctor reported. Seniority among troopers is determined by the trooper's badge number: lower badge numbers signify greater seniority. In his squad, plaintiff was the most senior trooper and served as the assistant squad supervisor.
While on duty in 1995, plaintiff injured his back in a car accident. Under the stated policy guidelines, after three days on sick leave, a trooper must be examined by a division doctor and produce medical documentation supporting the claimed injury or illness. Only a division doctor could change a trooper's duty status. A trooper on off-duty status must see the same division doctor until his or her injury or illness is resolved. Complying with these procedures, plaintiff returned to full-duty status after a six-week absence. In 1996, while on duty, plaintiff suffered another accident that injured his back. He returned to full duty in April 1998.
On April 11, 1998, plaintiff was transferred to the Somerville NJSP Station located in Bridgewater, which was approximately thirty-five miles from his residence. He filed an Equal Employment Opportunity (EEO) complaint objecting to this transfer. The record does not disclose the disposition of this complaint. In Somerville, plaintiff served as the acting squad sergeant during periods of the sergeant's absence.
After one month, plaintiff requested sick-leave due to stress. According to plaintiff, he experienced psychological problems, including stress and depression, related to family issues, his EEO complaint, and the transfer to Somerville. Plaintiff was placed on temporary off-duty status, the equivalent of sick leave. As plaintiff obtained treatment, his status fluctuated between limited duty and off duty, until the fall of 1999, when plaintiff returned to full-duty status as a Trooper I. After a few days, plaintiff experienced recurring back problems. Over the next two years, plaintiff was on extended leave, due to his back problems and stress. In August 2001, plaintiff reported to the Totowa Substation for full duty.
Initially at Totowa, plaintiff was ranked as the third man in his squad. However, due to a change in squad structure, a road sergeant was added as the third man above the most senior Trooper I. Plaintiff was moved to the fourth position and a trooper with a higher badge number was transferred to the squad as the acting road sergeant. Plaintiff questioned Wagner about his placement as the fourth man. Wagner explained plaintiff missed necessary trainings regarding compliance with new mandatory procedures while he was on medical leave. Plaintiff was told he needed to receive the training and demonstrate his competence working with the new procedures.
Squad openings developed two months later. Plaintiff had completed the required training. Nevertheless, Estok, presumably with Wagner's assent, advanced white troopers, junior in seniority to plaintiff, who was African American, to fill these positions. Specifically, on two occasions, a more junior white trooper was transferred to fill an opening for the third man spot on plaintiff's squad and on another squad in the barracks, while plaintiff remained the fourth man on his squad. Both of these white troopers, as well as the white trooper who first replaced plaintiff as senior man, ultimately became sergeants.
Around this time, plaintiff alleged Estok, as squad sergeant, demonstrated a condescending attitude toward him and made embarrassing remarks in the squad room regarding his abilities. For example, Estok asked plaintiff if "he could handle" his assignment by himself and plaintiff was told by another trooper that Estok said plaintiff would never be placed in a supervisory position in his squad.
In January 2002, plaintiff suffered from stress and was placed on off duty status. The following month, plaintiff filed a second EEO complaint, alleging a hostile work environment. The complaint was dismissed as unsubstantiated.
In April 2003, plaintiff returned to work as a Trooper I, assigned to the Bloomfield Station. As a result of his back problems, he was assigned limited duty work. On December 8, 2003, plaintiff was cleared for full-duty status and expected to perform all physical tasks required of a trooper. He was to report to work on December 11, 2003. When plaintiff reported for duty, he explained he had hurt his back between December 8 and 10, while preparing for the physical fitness test. He also stated wearing a protective vest while on road patrol exacerbated his back injury. Plaintiff sought permission from the assistant station commander, Sergeant O'Rourke, to perform administrative tasks in the station. O'Rourke consented.
The station commander determined plaintiff had been cleared for full duty and produced no medical documentation regarding the recent back injury. Thus, notwithstanding O'Rourke's consent to allow plaintiff to perform administrative tasks, he ordered plaintiff to return to patrol duty. Plaintiff complied, but after four hours returned to the station and sought sick time for the remaining hours of his shift. He then requested sick leave for December 12, 15 and 16.
On December 17, plaintiff filed his third EEO complaint regarding this incident. The complaint was found to be unsubstantiated.
Also, on December 17, 2003, plaintiff was examined by a division physician regarding his back and stress complaints. The doctor placed plaintiff on off-duty status. That decision was rescinded by Dr. Izzi because plaintiff did not return to the division physician who last treated his condition, and he did not produce medical documentation substantiating his injury.
On December 19, plaintiff received a letter from Lieutenant Colonel Lori Hennon-Bell, on behalf of Colonel Fuentes, the NJSP superintendent. The letter informed plaintiff he had been placed on leave-without-pay status until he presented "adequate medical information regarding the medical condition that you claim prevents you from returning to duty." That status would continue until the documentation was provided and an updated duty status determination was reviewed by Dr. Izzi. Dr. Izzi was not involved in making this decision.
On December 23, 2003, plaintiff submitted a letter from his psychologist, Dr. Brinkelhof, stating he suffered from an adjustment disorder, a chronic depressed mood, and stress. As a result, Dr. Izzi scheduled plaintiff for an independent psychological evaluation. The psychologist's report concluded plaintiff could not return to full-duty status. Dr. Izzi placed plaintiff on off-duty status in January 2004, and plaintiff received his back pay. Plaintiff remained on off-duty status until July 2004, when he returned to the Totowa Substation where he continues to work.
In March 2005, plaintiff filed an amended four-count complaint, which included allegations that he was treated in a disparate manner from his white counterparts and was subject to a hostile work environment in violation of the LAD. Plaintiff relied on a series of events that he claimed, viewed separately or cumulatively, supported his assertions of disparate treatment, retaliation, failure to accommodate, and other torts.
Certain claims were dismissed prior to trial. The claims presented at trial included: Wagner and Estok acted maliciously by promoting white troopers junior in rank ahead of plaintiff and created a hostile work environment; the NJSP generally, and Dr. Izzi in particular, retaliated against plaintiff for filing EEO complaints regarding various incidents; the defendants failed to accommodate plaintiff's disability on December 11, 2003; and defendant's actions intentionally inflicted emotional distress. At the close of evidence, the court dismissed the ...