The opinion of the court was delivered by: Irenas, Senior District Judge
Plaintiff, Kellie Peacock, brings this New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et. seq. ("NJ LAD"), action against her former employer, Defendant Albertsons Acme Markets ("Acme") and Defendant Debbie Carlucci, the manager of the Acme store where Peacock worked. Peacock asserts that she was constructively discharged in violation of NJ LAD as a result of a work environment that was hostile to her alleged disability, and Acme's alleged failure to accommodate her disability. Defendants presently move for summary judgment. For the reasons stated herein, the motion will be granted.*fn1
Peacock's claims arise out of her employment as a deli clerk at the Acme supermarket in Pennsville, New Jersey from January, 2004 until December, 2006. On August 31, 2005 Peacock asserts that she injured her shoulder at work after lifting a 40-50 pound box of chicken. Peacock alleges that when she presented Carlucci with a doctor's note, recommending that she not attend work until receiving an MRI, Carlucci referred to her workers' compensation claim as "bullshit" because she didn't "do" the injury at Acme. (Peacock Dep. 26:22-27:12). Carlucci contends there is no evidence that she used such language when speaking to Peacock in September 2005, but that she did question the veracity of Peacock's injury and her performance. See Stmnt. of Undisp. Facts ¶ 11. On January 4, 2006, Peacock underwent shoulder surgery and received workers compensation benefits until she returned on February 27, 2006, with restrictions not to lift more than ten pounds with her left arm. (Peacock Dep. 31:13-15; 32:3-33:19-24).
On March 29, 2006, Peacock dropped a tray of rotisserie chicken and was allegedly called into Carlucci's office and told "maybe this job isn't good for you . . . maybe you're not going to be able to work here." (Peacock Dep. 79:16-22). Peacock told Carlucci that she should not have been lifting the rack of chicken with her shoulder injury, even though Peacock acknowledges that she had no medical restrictions at the time. (Peacock Dep. 43:16-22). Carlucci advised her to visit a doctor to obtain new restrictions.*fn2 (Id. at 43:3-10; 78:6-80:31; 79:3-13). Peacock claims that she felt intimidated by her supervisor's comments during that conversation. Carlucci contends that Peacock was not forced to work outside of her restrictions when she dropped the tray of chicken, but was simply scolded for not doing her job. See Stmnt. of Undisp. Facts ¶ 18.
At work on April 21, 2006, Peacock felt a burn in her shoulder while loading the meat wall, and made an appointment to see her doctor on April 27, 2006. (Peacock Dep. 50:3-16). Peacock's doctor classified her shoulder aggravation as a second injury, which took her away from the job for a week pending a follow-up appointment. (Peacock Dep. 46:3-9; 50:12-16). Peacock alleges that when she called Carlucci to report her second injury, Carlucci yelled and cursed at her, characterizing her claim as "bullshit" and accusing her of being a "fucking liar." (Peacock Dep. 46:24; 49:2-4). Carlucci testified that she said, "Kellie, this is bullshit, you know the rules," because Peacock was aware of the policy of reporting work injuries within 24 hours, yet disclosed her injury six days after being injured. (Carlucci Dep. 35:22-36:2; 54:22-55:7).
Peacock returned to work around July 20 and worked through August 2006 with her arm in a sling. Peacock had no problems with Carlucci during this time. (Peacock Dep. 58:12-14; 54:14-55:14). On September 1, 2006, Peacock left work for a second shoulder surgery and received workers' compensation benefits during her time away from Acme. (Id. at 59:10-60:4).
Although Peacock received medical clearance to return to work with her arm in a sling on November 9, 2006, she remained at home on workers' compensation. Peacock believed that Acme either did not want her to return to work with a sling or did not have a one arm job for her. (Id. at 84:7-85:6). Carlucci testified that she did not receive notice of Peacock's intended return date, including the doctor's note indicating Peacock's "arm in sling" restriction. (Carlucci Dep. 38:11-17; 40:7-24).
When Peacock returned to work with her arm in a sling on December 18, 2006, the parties disagreed about its necessity and Peacock's level of restriction at work. (Peacock Dep. 66:17- 67:2). Peacock claims that after having two shoulder surgeries, wearing a sling was necessary for her protection, however, Carlucci cites that no such restriction was noted by her physician. (Peacock Dep. 81:21-83:23: Exh. 5 to Dep.: Doctor's note, Dec. 14, 2006).
On December 20, 2006, Peacock again came to work wearing the sling and alleges that she was called to Carlucci's office and accused of "playing the system." (Pl.'s Resp. to Defs.' Stmnt. of Undisp. Facts ¶ 41). Peacock felt that she was going to be fired during her conversation with Carlucci, but was never explicitly threatened with termination. (Peacock Dep. 69:20-21; 71:1-6). After leaving Carlucci's office, Peacock clocked out, left the store, and did not return. (Id. at 68:7-10;74:16-18).
Peacock asserts that Carlucci's repeated accusations of lying about her injury and not doing her assigned jobs were the reasons she left work. Peacock spoke with a union representative twice: once, while employed at Acme, to complain about Carlucci "cussing at her;" and a second time on the day she left Acme. (Id. at 86:24-88:19). This union representative never returned Peacock's phone call. (Id. at 90:5-6).
Peacock's complaint alleges that Acme violated the NJ LAD by discriminating against her on the basis of her disability (by constructively discharging her) and that Carlucci aided and abetted Acme's NJ LAD violation. Peacock pursues two distinct theories of liability: (1) that Carlucci allegedly created a hostile work environment which forced Peacock to quit; and (2) that Acme's alleged failure to accommodate Peacock's disability forced her to quit.
Defendants move for summary judgment on ...