On appeal from the Superior Court of New Jersey, Hunterdon County, Law Division, Docket No. L-563-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Chambers.
Plaintiff Diane Potash appeals from the September 26, 2008 order granting defendant Hunterdon Medical Center summary judgment. We affirm.
On October 24, 2006, plaintiff filed a complaint against defendant alleging failure to provide reasonable accommodation, disability and perceived disability discrimination, and retaliation claims in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. In August 2008, defendant moved for summary judgment. On September 26, 2008, the trial court granted defendant's motion.
From October 10, 1994 through October 12, 2005, plaintiff worked as a nurse in defendant's intensive care unit [ICU]. During the term of plaintiff's employment, defendant had in place a leave of absence (LOA) policy to assist employees in balancing multiple demands placed on their lives, including those caused by medical conditions or illnesses. Defendant's Human Resources and Development Policy and Procedure Manual provides in part that: employees may take medical LOAs for periods of time not to exceed six months; LOAs must be requested thirty days in advance of the effective date; employees must provide defendant with an anticipated return date; and "[a]n indefinite return to work date will cause denial of the leave. If necessary, an estimated return date may be provided and updated as appropriate." The policy manual further provides that:
An employee[,] who is unable to return to work at the expected conclusion of a leave, must request an extension of the leave from his/her department manager at lease five (5) days prior to the scheduled return date by completing a new Leave of Absence Request form for approval by department manager. If the extension request is due to the employee's own serious health condition or that of a family member, the employee must submit appropriate documentation from the attending physician.
As with the initial leave period, employees returning from an extended leave will be reinstated to their same or equivalent level position, provided they return within 12 weeks (except in cases where the combination of state and federal law allows for more than 12 weeks); after 12 weeks the position may be posted and filled. If the employee is able to return to work at a later date, he/she may apply and be considered for any posted position for which he/she is qualified. The employee is subject to any layoff, reduction in workforce, change in working conditions, etc., that would otherwise have occurred if the employee was not on leave.
An employee who fails to return to work as scheduled may be deemed to have voluntarily resigned and be required to reimburse Hunterdon Medical Center for any benefits paid on behalf of the employee during [his/her] leave.
In October 2005, plaintiff suffered from a non-work related back injury. On October 12, 2005, plaintiff submitted to defendant's Human Resource and Development Department (HRDD) a written request for a medical LOA, effective that day, indicating that she expected to return to work on December 19, 2005. The form provided in part that "[i]f my request for leave is granted, I have a right to take up to 12 weeks of leave in a 12[-]month period . . . ." The form further provided "I will keep Occupational Health Services and my supervisor abreast of the status of my leave at least every 30 days, including my intention to return to work or resume my normal work schedule. I understand that if I do not return within the time period allowed by policy, the medical center may post my position." Lastly, the form provided, "[u]nless I submit and receive approval for an extension of leave, my failure to report to the [HRDD] by the leave expiration shall be deemed my voluntary resignation."
On October 28, 2005, the HRDD acknowledged receipt of plaintiff's request, informed her that she may be eligible for the LOA, and requested that she provide a medical certification regarding to her health condition. On November 18, 2005, plaintiff submitted a medical certification from Deborah McLanahan, a certified registered nurse practitioner of Cornerstone Family Practice, advising that plaintiff had been treated in ...