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Thorson v. PSEG Power

January 9, 2009

KENNETH THORSON, PLAINTIFF-APPELLANT,
v.
PSEG POWER, LLC, PSEG SERVICES CORPORATION, AND PUBLIC SERVICE ENTERPRISE GROUP, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6448-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 7, 2008

Before Judges Stern, Collester and C. L. Miniman.

Plaintiff Kenneth Thorson appeals from the order of February 15, 2006, granting summary judgment to defendants PSEG Power, LLC, PSEG Services Corp., and Public Service Enterprise Group (PSEG), and dismissing the complaint. We reverse.

The facts set forth by plaintiff in opposition to summary judgment are as follows. Plaintiff began employment with PSEG in August 1971 and worked as a Combustion Turbine Operator (CTO) at PSEG's Essex Generating Station (Essex Station). Essex Station is comprised of twenty-nine generators and fifty-six individual turbines at five separate locations: Essex, Kearney, Hudson, Bayonne and Bergen. Each generator is connected to two turbines and housed in a separate building. Plaintiff worked at the Essex and Kearney locations which had forty-five turbines. The position of CTO requires an extensive amount of physical labor. Plaintiff was required to (a) operate the turbines, by walking from unit to unit; (b) troubleshoot, by accessing difficult to reach places with fast-moving parts; (c) check instrumentation, by monitoring gauges located anywhere from ground to ceiling level; and (d) maintain the turbines. Working overtime is an essential responsibility for a CTO, especially during the summer months when electricity demands are high. Overtime work can be either mandatory or voluntary. The reluctance of a CTO to accept overtime meant that others had to absorb the work. At times a CTO could work up to sixteen hours straight.

From April 27, 1992, until April 14, 2002, plaintiff was supervised by Frank Ameo, the area manager for the Essex, Kearny and Bayonne facilities as well as the CTO manager, operations manager, and station manager for the Essex Station. Part of Ameo's responsibilities included preparation or review of employee performance appraisals every two years. Two particular issues were consistently noted in plaintiff's performance appraisals: (1) his reluctance to work overtime; and (2) as a result, his general lack of productivity. In those categories, plaintiff was frequently rated "below standard." These matters were discussed with plaintiff, who attributed his avoidance of voluntary overtime work to leg fatigue.

On October 16, 2001, plaintiff presented his direct supervisor, John McKenna, with a letter from his treating physician, Dr. Richard Bruno, a psycho-physiologist and Director of the Post-Polio Institute in Englewood. Dr. Bruno diagnosed plaintiff with Post-Polio Syndrome (PPS), a neurological impairment causing progressive muscle weakness, pain and fatigue. He requested "reasonable accommodations" for plaintiff pursuant to the Americans with Disabilities Act (ADA) including:

Limited walking, crawling, stooping, bending and climbing stairs, ladders and stacks. Limit overtime and shifts longer than 8 hours.

Moving oil barrels only with forklift.

Use of restroom within 250 feet of work area.

Transport available to drive to units.

Two 15-minute breaks and 30 minutes for lunch.

Increased operation, troubleshooting, and checking units while sitting.

Dr. Bruno spoke to Dr. Mark Magariello, PSEG's company physician, about the requested accommodations, and Dr. Magariello said he would speak with Ameo about the matter. Plaintiff and Ameo then met and reviewed Dr. Bruno's letter together to clarify plaintiff's difficulties and provide a reasonable accommodation. Plaintiff wanted to minimize standing and walking, and Ameo agreed to provide stools in the control rooms to reduce standing time and also make a golf cart available to plaintiff to reduce walking to separate buildings to inspect and service generators. Although plaintiff had been criticized in the past for not taking voluntary overtime, Ameo assured him that no one had ever been fired for refusing voluntary overtime. They agreed that plaintiff would work mandatory or "forced overtime," a term of art in the collective bargaining agreement, but would only work voluntary overtime if no one else was available. Plaintiff stated that those accommodations allowed him to manage his PPS and perform the essential functions of his job. He continued to work with the accommodations for fourteen months during which period his strength and physical condition improved.

While plaintiff contends his understanding with Ameo was that he would work forced overtime but not voluntary overtime, PSEG argues that Ameo could not modify plaintiff's overtime obligations as an accommodation since overtime was an essential component of a CTO's responsibilities and part of the collective bargaining agreement. It is undisputed that ...


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