On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-976-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 2, 2009
Before Judges Axelrad, Fisher and Espinosa.
Plaintiff Geraldo Smith appeals from summary judgment dismissal of his complaint against his employer and its principal asserting discrimination and retaliation in violation of the New Jersey Law Against Discrimination (NJLAD) and the New Jersey Workers' Compensation Act, and claiming intentional infliction of emotional distress. Defendants filed a cross appeal, challenging the court's ruling that plaintiff was "disabled/handicapped" within the meaning of the NJLAD. We affirm.
Plaintiff held a non-union, at-will position as a maintenance man at defendant's apartment complex for a nine-month period. He had no negative performance evaluations during that time. It is also apparently undisputed that plaintiff experienced back pain and occasionally wore a back brace. According to plaintiff, he injured his back on Friday, October l0, 2003, while carrying a refrigerator down a flight of stairs at an apartment. He reported the injury to his supervisor on Sunday. On Monday, plaintiff saw a doctor, and in the early afternoon he brought his supervisor a doctor's note requesting he be excused from work for two weeks.
According to defendant, Jamil Akhtar, that same morning he had inspected a flooring job done by plaintiff the prior week and found it unsatisfactory. He therefore had his staff prepare a one-sentence letter terminating plaintiff's employment as of that day. He claimed he was unaware of plaintiff's injury when he ordered the termination.
On September 15, 2005, plaintiff filed a two count complaint seeking damages. In count one, plaintiff alleged he suffered a work-related injury that caused a physical disability or handicap requiring treatment and reasonable accommodation, and was unlawfully discriminated, retaliated against, and terminated in violation of the NJLAD and the New Jersey Workers' Compensation Act. In count two, plaintiff incorporated the same facts to assert a claim for intentional infliction of emotional distress.
Following oral argument on November 7, 2008, the court granted plaintiff's motion for protected "handicapped" status under the NJLAD and granted defendants' cross-motion for summary judgment dismissing plaintiff's complaint. Judge Michael Fisher found that for purposes of the summary judgment motion, plaintiff satisfied the first and third elements necessary to succeed in an accommodation claim under the NJLAD, i.e., that he was disabled under the statute and suffered an adverse employment action as a result of his disability. Based on plaintiff's own statements, however, the judge found he failed to make a prima facie showing of the second element, namely, that "he was qualified to perform the essential functions of the position of employment." The court also concluded that plaintiff failed to provide any evidence to support the allegation that he was fired in retaliation for filing a workers' compensation claim for the refrigerator incident, noting that plaintiff did not file such claim until five months later.*fn1 This appeal and cross-appeal ensued.
On appeal, plaintiff argues that summary judgment was inappropriate because there were disputed factual issues as to whether he could return to his job, whether there was light duty available, or whether a brief time off with appropriate treatment would have been a reasonable accommodation. Plaintiff further argues that the motion judge's analysis regarding defendants' failure to accommodate was "completely inappropriate" in light of defendants' denial, from the outset, of knowledge of plaintiff's injury; lack of any discussion between the parties concerning the issue of accommodation; and clear evidence of termination of plaintiff based solely on the pretext of poor work performance. Thus, plaintiff contends that once defendants engaged in the unlawful adverse action of terminating him based solely on his handicap, they should be foreclosed or otherwise barred from arguing that "plaintiff failed to satisfy 'his burden' that he could have performed the essential functions of his job."
We review the trial court's grant of summary judgment de novo, employing the same legal standard used by the motion judge: whether there are material facts in dispute and, if not, whether the undisputed facts viewed most favorably to the non-moving party entitle the moving party to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
Plaintiff's legal argument is incorrect. The NJLAD prohibits employment discrimination based on disability. N.J.S.A. 10:5-4.1 to -29.1; Potente v. County of Hudson, l87 N.J. l03, 110 (2006). Reasonable accommodation of a disability is required of employers by regulation promulgated under the NJLAD, N.J.A.C. l3:13-2.5, and by cases interpreting the NJLAD. See, e.g., Potente, supra, 187 N.J. at ll0; Viscik v. Fowler Equip. Co., 173 N.J. 1, 11 (2002); Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 9l (App. Div. 200l). Failure to accommodate represents one category of discrimination under the NJLAD, the other being disparate treatment. Victor v. State of New Jersey, 401 N.J. Super. 596, 610 (App. Div. 2008), certif. granted, 199 N.J. 542 (2009).
The burden of proving discrimination "remains with the employee at all times." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). In a reasonable accommodation case, a plaintiff first must demonstrate the following three prima facie elements required in any LAD disability discrimination claim, namely:
(1) plaintiff was disabled within the meaning of the statute; (2) plaintiff was qualified to perform the essential functions of the position of employment; and (3) plaintiff suffered an adverse employment action because of the disability.*fn2 Each of these elements must be shown, including proof of some material adverse change in the terms and conditions of employment. [Victor, supra, 401 N.J. Super. at 614 (citing Jones v. School Dist. of Philadelphia, l98 F.3d. 403, 4ll (3d Cir. l999)).]
In this case, the trial court assumed for purposes of the summary judgment motion that plaintiff satisfied the first and third elements required for a prima facie case of disability discrimination. Thus, the only disputed element is the second one, whether plaintiff was qualified to perform ...