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Devito v. New Jersey Dep't of Transportation

July 15, 2009

ANTHONY DEVITO, PLAINTIFF-APPELLANT,
v.
NEW JERSEY DEPARTMENT OF TRANSPORTATION AND DR. MICHAEL MAKOWSKY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-398-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2009

Before Judges R. B. Coleman, Sabatino and Simonelli.

Plaintiff Anthony DeVito appeals from orders entered on September 20 and September 27, 2007, granting summary judgment in favor of defendants the New Jersey Department of Transportation (DOT) and Dr. Michael Makowsky. In his complaint, plaintiff alleges that the DOT denied him employment based upon his disability, contrary to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and that Dr. Makowsky aided and abetted in that discrimination. DeVito contends that, at a minimum, genuine issues of material fact exist which preclude the grant of summary judgment. We disagree and, accordingly, we affirm the orders granting summary judgment.

DeVito first learned in 1993 that he had contracted Hepatitis C. In 1998, he began receiving Social Security disability benefits as a result of his illness. Around that same time, his primary care physician, Dr. William S. Albert, advised DeVito that he should limit his lifting to no more than fifty pounds. Occasionally, DeVito would complain of fatigue, and in 2001, he was placed on the liver transplant list at NYU Medical Center. Despite collecting disability benefits, DeVito did not consider himself disabled.

In January 2003, DeVito submitted an application to the DOT for employment as a Bridge Operator Trainee. The Department of Personnel's (DOP) Job Specification 40349 indicates that a Bridge Operator Trainee functions under the close supervision of a supervisor in the operation of one or more drawbridges and in the performance of other related duties. The job specification describes the pertinent duties*fn1 as follows:

Maintains bridge houses, bridge walkways, sidewalks and all work areas in a safe, clean condition at all times including but not limited to sweeping, washing and waxing floors, cleaning windows, snow removal and removal of debris from pedestrian sidewalk, storage and disposal of garbage in a safe and proper manner.

Responds to emergency situations including snow removal and ice control and is available day or night as required.

The person filling the position of Bridge Operator Trainee must have the following abilities:

Ability to respond to emergency situations including snow removal and ice control. Ability to work at heights, climb ladders, stairs and structural members over water, for routine inspection and re-lamping of navigation lights and features.

Ability to inspect and perform limited maintenance work . . . of machinery.

The DOP's Classification Questionnaire enumerates the certain duties to be performed by a Drawbridge Operator which, are considered cause for separation of a trainee who fails to attain the requisite level of performance:

When a bridge malfunctions . . . use manual controls and emergency operating procedures to complete the lift and return bridge to closed position, includes climbing ladders . . . pushing and pulling levers to control brakes, clutch and other machinery, using fall arrest gear to walk on catwalks and other areas where the danger of falling in water exists.

Mop floors, clean bathrooms . . . and performs other household duties. This requires filling a bucket with water (21-30 lbs.) and carrying it up and down stairs.

Check bridge upon entry to shift, walking entire length to inspect bridge for problems . . . . Requires climbing of stairs or ladders to access upper and lower areas of the bridge.

[O]n occasion, has to climb stairway . . . (80 to 100 feet) . . . .

Operate snow blowers . . . . Requires pulling to start the engine . . . and pushing the snow blower if traction is limited. Also must use a shovel to remove snow from the bridge . . . .

Uses line trimming equipment to trim weeds . . . . Requires person to carry trimmer and operate it holding it out, away from body.

In his deposition, taken on March 29, 2007, Kenneth Nuegebauer, Supervisor of Bridge Operations, testified that a Drawbridge Operator is not an easy job. It involves changing gears on the bridge; cranking out locks that hold the bridge down; lifting grates; climbing and crawling; lifting deliveries weighing upwards of fifty pounds; and snow and ice removal.

Similarly, when Steve Iorio, the DOT's Manager of Human Resources, was deposed on that same date, he testified that the aforementioned job specifications are essential functions of a Bridge Operator Trainee. An individual must be able to perform them without assistance. On the other hand, the DOP's general job specification, applicable to a range of titles, provides:

Persons with mental or physical disabilities are eligible as long as they can perform the essential functions of the job after reasonable accommodation is made to their known disability. If the accommodation cannot be made because it would cause ...


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