On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4019-06.
The opinion of the court was delivered by: RODRÍGUEZ, A. A., P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Payne and Newman.
Plaintiff Brenda Groslinger appeals the July 3, 2008 order granting summary judgment in favor of defendants John Ydo (Ydo) and Township of Wyckoff (Township). We affirm.
Groslinger was a police officer with the Wyckoff Police Department (WPD) for several years. In 2005, she informed her supervisor that she was pregnant and that her doctor recommended she be reassigned to non-patrol duties. She was assigned to a floating dispatcher position that required her to work an irregular schedule. Groslinger asserts she suffered health consequences from working this schedule. She also asserts her co-workers made inappropriate comments based on her gender and her pregnancy.
Groslinger filed a grievance with the Township Administrator alleging she had been subjected to discrimination and harassment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The grievance concluded with Groslinger's voluntary placement in an accommodated position.
Groslinger thereafter filed a complaint in the Law Division alleging she had been subjected to gender discrimination and sexual harassment in violation of the LAD and retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Defendants moved for summary judgment and, following a hearing, the judge dismissed the complaint, finding in part that Groslinger's LAD claims were waived by her voluntary acceptance of modified duties following the grievance. Groslinger appealed.
These are the salient facts. Groslinger became pregnant with her first child in September 2003. At no time has the WPD ever had a "light duty" policy for patrol officers unable to perform the duties of their positions. However, Ydo placed Groslinger in a vacant dispatcher position, subject to her doctor clearing her to perform the duties of the position. Groslinger had worked as a civilian dispatcher prior to becoming a patrol officer. Because there were two vacant dispatcher positions at that time, Groslinger was able to work a regular shift throughout her pregnancy.
Groslinger became pregnant with her second child in August 2005 and again requested a modified duty schedule commensurate with her doctor's recommendations. As with her first pregnancy, Ydo reassigned Groslinger to "various administrative/dispatch functions," conditioned on her doctor's approval. Ydo confirmed this arrangement in a letter to Groslinger, noting that in light of the "unprecedented and temporary nature" of the reassignment, "shift changes are possible, and more than likely, due to the 'as needed' basis of some of your new functions." Groslinger did not sign this letter, stating she first wished to consult with an attorney.
Groslinger's second pregnancy was more difficult to accommodate than her first because there were no longer any vacant dispatcher positions. There were gaps in the dispatcher schedule that Groslinger filled. However, Ydo also had to accommodate the per diem workers who normally filled these shifts to ensure the workers would still be available after Groslinger returned to regular duty. Accordingly, Groslinger received an irregular schedule and occasionally worked a 3 p.m. to 11 p.m. shift followed by a 7 a.m. to 3 p.m. shift the next day.
Pursuant to the Township sick leave policy, codified by the Township Administrator in April 2006, Township employees were entitled to fifteen sick days per year, which could accumulate from year to year in the event of a long-term illness. A pregnant employee was entitled to unpaid leave only to the extent authorized pursuant to the Family Medical Leave Act (FMLA)*fn1 and/or the New Jersey Family Leave Act (FLA).*fn2
In September 2005, she requested that her doctor, Leonard Nicosia, M.D., write her a note. The note stated: "[Groslinger] cannot fulfill her duties as a police officer due to her pregnancy. She is unable to return to work as of [September 14, 2005, and] until released for duty from this office."
Without speaking to anyone, Groslinger left this note on Ydo's desk and did not report to work for the next five days. When Ydo requested that Groslinger's doctor specify which duties she could not perform, the doctor responded with a letter stating: "After reviewing the civil dispatcher activities/job functions list, we see no reason for her to be unable to do the civil dispatcher's position at this time." Ydo ordered Groslinger back to work. Ydo additionally requested that Groslinger account for her absence from work and initiated an investigation. Groslinger claimed this investigation was intended to harass and discriminate against her. No disciplinary action was brought against her.
Groslinger returned to work. On March 1, 2006, she obtained a doctor's note excusing her from work. She gave birth on March 31, 2006. She invoked the FMLA, the FLA, and personal leave to care for the baby until the following September. Groslinger was informed that, in light of her eight years of service, she was entitled to a total of 128 sick days through the end of 2006. Because she had already utilized 101 sick days, she had twenty-seven sick days remaining. She was paid for all the sick time she used in 2005 and 2006.
Groslinger alleges that, while she was pregnant, she was subjected to a hostile workplace environment based on several encounters with other WPD officers. Because Ydo was on vacation when Groslinger initially disclosed her second pregnancy, she spoke with the acting chief of the department, Captain Benjamin Fox. Fox stated that light duty was unavailable and indicated Groslinger might not receive paid sick leave if she took time off, "because you are not sick, you are not injured, you are pregnant, and I don't know what category that falls in that you would be compensated for not coming to work." He suggested Groslinger could avoid working by getting pregnant every year for five years.
Around the same time, Captain Ken Hagedorn sent out a general email stating it was unlikely Groslinger would work any more patrol shifts that year, so all other requests for personal time would have to accommodate for the lack of personnel.
At some point a police secretary, Beverly Smith, said words to the effect of, "Screw her, cut off her pay, and let her sue us." Ydo learned of the remark during the Township Administrator's investigation and verbally admonished Smith for the remark. The Township Administrator later sent Smith a written letter of reprimand.
Two detectives, Joseph Soto and Daniel Kellogg, said words to the effect of, "If you expect to be hired here, you better put your uterus in a jar and show it to the Chief," implying the WPD would not hire a patrol officer likely to become pregnant. When Ydo learned of the incident, he verbally admonished both Soto and Kellogg and sent them each a written warning, informing them that such comments violate WPD rules and regulations. He ordered them to attend additional sexual harassment training.
In September 2005, Groslinger filed a grievance with the Township Administrator based on the conduct of her fellow officers. She alleged she had been subjected to harassment and discrimination on account of her pregnancy in violation of the WPD collective bargaining agreement, the LAD, and the FLA, and that the investigation into her use of sick leave was retaliatory, in violation of CEPA.
On November 2, 2005, Groslinger signed a letter agreeing to accept a modified duty schedule on terms substantially identical to those in the letter Ydo sent on August 25, 2005. Subsequently, the Township Administrator issued a recommendation addressing Groslinger's grievance, which the Township accepted and endorsed in a resolution. The Administrator found no negative motivation in Hagedorn's email regarding requests for personal leave, but recommended Ydo review the incident with Hagedorn. The Township Administrator found Fox and Groslinger's accounts of their discussion about her request for accommodated duty irreconcilable, but recommended Ydo review the incident with Fox. The Administrator found Smith's comment reflected poor judgment and recommended Smith be reassigned to another department. He found Soto and Kellogg's alleged "uterus in a jar" discussion inappropriate and recommended that they ...