On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8603-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and C.L. Miniman.
Plaintiff Awilda Santiago appeals from the dismissal of her complaint against the County of Passaic (County) and James Convery, then Passaic County Administrator, for denial of reasonable accommodation due to physical disability in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 5-49, and from a jury verdict of no cause for action on her claim of legal malpractice by William J. Murray, Esq., and Murray and Kimball, LLC. We affirm.
Plaintiff was employed by the County as a benefits clerk from 1975 through 2001, a total of twenty-six years. In February 2001 she suffered neck and back injuries after shoveling snow at her home. She was examined and treated by Dr. Victor D. Antonacci, an orthopedic surgeon, who diagnosed plaintiff with bicipital tendonitis, cervical strain, and impingement syndrome.
On February 24, Dr. Antonacci provided the County with a medical certificate stating that plaintiff was unable to work for two weeks due to her injuries. She was placed on medical leave by the County from February 26 to March 9. Pursuant to the Personnel Policy Manual of the County, plaintiff was to exhaust her accumulated sick leave and vacation time before she was eligible for temporary disability benefits. Subsequently, Dr. Antonacci represented on March 9 that plaintiff was unable to perform the duties of her job for an additional four weeks, and the County extended her leave until April 6. At the direction of the County, plaintiff was examined by Dr. Lawrence I. Livingston on March 27. He agreed with Dr. Antonacci that plaintiff could not return to her job at that time because plaintiff's pain from a cervical radiculitis of her upper left extremity would be aggravated by prolonged sitting.
Plaintiff testified that in early April she went to see defendant Convery and handed him a letter in which she resigned her position effective April 11, 2001, citing health and personal reasons which prevented her from returning until September. She said Convery did not accept her resignation, told her she was a good worker and would see her in September.
By this time plaintiff had exhausted her sick pay and vacation pay and sought benefits under the County's self-insured short term disability plan administered by Capitol Administrators, Inc. On May 16, 2001, a letter was sent by Capitol to plaintiff explaining that to maintain her eligibility for consideration of benefits, she had to be examined by Dr. E. Margerlotis on May 30, 2001. Plaintiff did not keep the appointment. Capitol notified the Passaic County personnel principal benefits clerk that all further temporary disability benefits for plaintiff were denied. Plaintiff was also notified of the decision and her right to appeal the denial to the New Jersey Department of Labor within one year. No appeal was ever filed.
Plaintiff's temporary disability leave with pay was extended to May 10 and then to June 7 based on medical certificates of disability submitted by Dr. Antonacci. However, no medical certificate was tendered to extend the disability period beyond June 7, and plaintiff did not return to work. Plaintiff testified she next saw Dr. Antonacci on June 20. He submitted another medical certificate to the County on the same date stating that plaintiff was still disabled but would be able to return to work in three weeks on July 6. Plaintiff faxed the report to Convery's office on June 21.
On the following day, June 22, plaintiff was sent a preliminary notice of disciplinary action for her removal from County employment on the following charges:
Conduct unbecoming a public employee.
Under the section labeled "specification(s)" the notice stated:
Employee is and continues to be absent without leave commencing from 6/7/01 through the present. Employee has abandoned her position.
The notice advised that if plaintiff desired a departmental hearing, she was to notify the County Personnel Department within five days. The hearing date was fixed for 2:00 p.m. on July 9 at the office of County Counsel. Plaintiff did not respond to the notice and did not appear on the hearing date.
Plaintiff testified that after she received the preliminary notice, her chiropractor suggested she consult with defendant Murray. She called Murray's office and met with him two or three days later. She said she told him she loved her job and wanted it back, adding that in seven years she could retire with a pension. She told Murray she could not pay to retain him because her only income was the disability payments she was receiving. She said he told her he would call the County to "straighten it out" and then bill her. Plaintiff said she called Murray's office every two or three months and was told not to worry because Murray was "working on it."
About ten months later, on April 2, 2002, plaintiff received a notice of final disciplinary action removing her from County employment effective June 21, 2001. The notice stated plaintiff did not request a hearing in response to the June 22, 2001 preliminary notice and that "your counsel discontinued communications with the County." The stated reasons for termination were the identical charges in the preliminary notice, that is:
Conduct Unbecoming a Public Employee.
The letter further advised plaintiff of her right to appeal the action by the County. No appeal was ever taken.
In late 2001, plaintiff went to Puerto Rico for an extended period of time. After she returned, she called Murray's office on June 20, 2003, and asked to meet with him. It was two years after their first meeting. After she arrived, Murray's partner drafted a document entitled "Agreement to Provide Legal Services" that was signed by both plaintiff and Murray. The document specifically stated that Murray's law firm would not represent her in any litigation against the County or Convery. However, Murray's law firm agreed to assist plaintiff in the preparation of a pro se complaint, jury demand, case information statement, and summonses "on a pro bono publico basis" since her date of termination from County employment was June 21, 2001, and the two-year statute of limitations would expire the following day. The document instructed plaintiff about filing the complaint and other legal documents, payment of fees, service of subpoenas and other litigation procedures. The agreement also contained a hold harmless clause for the law firm in the event the cause of action arose prior to June 21, 2001, and was barred by the statute of limitations. Finally, the agreement specified: "Upon leaving the office on June 20, 2003, the attorney-client relationship, if any, shall therefore cease to exist."
Plaintiff left with the pro se complaint and followed the instructions by filing it before the expiration of the limitation period. The first count of the complaint alleged that the County and Convery failed to make reasonable accommodations for plaintiff during the course of her employment in violation of the LAD. The second count, later withdrawn by plaintiff, alleged defendants discriminated against plaintiff by terminating her employment because she was physically handicapped. Compensatory and punitive damages were sought. On April 23, 2004, now represented by a new attorney, Santiago amended her complaint to add a count of legal malpractice against Murray and his law firm.
The jury trial began on November 27, 2006. After completion of the plaintiff's case, the County and Convery moved pursuant to Rule 4:37-2 for involuntary dismissal of plaintiff's LAD claim on the ground that plaintiff admitted no reasonable accommodation would have enabled her to return to work.
The testimony in question occurred during plaintiff's cross-examination as to her physical condition in the summer of 2001.
Q: Okay. In - if you had gone to the hearing in the - on July 9 and if you got your job at that point you ...