On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1903-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
Plaintiff Jennifer Marazzo appeals from the July 24, 2009 order that granted summary judgment to defendant Mercer County Board of Social Services. We reverse.
Plaintiff is twenty-nine years old and has been treated for depression since the age of fifteen. On February 22, 2004, plaintiff began employment with defendant as a social worker. In August 2005, plaintiff suffered a depressive relapse, causing her to be hospitalized and to take an extended unpaid leave of absence from work. In January 2007, plaintiff returned to work, having been prescribed different types and dosages of psychotropic medications to control her depression.
On returning to employment, plaintiff worked as a protective services investigator, and her regular hours of employment were fixed by union contract as commencing at 8:30 a.m. and ending 4:30 p.m., Monday through Friday each week; except on Tuesdays when defendant's offices remained open until 8:30 p.m. On Tuesdays, employees were provided the option of working 8:30 a.m. to 4:30 p.m., 12:30 p.m. to 8:30 p.m., or 8:30 a.m. to 8:30 p.m.
Although required to commence work at 8:30 a.m. four days per week, plaintiff was not able to consistently commence employment as scheduled because the prescribed medications she took at night caused her to fall into a comatose-like sleep from which she had difficulty awakening in the morning. Even after she was awoken by her mother, it would take plaintiff fifteen to thirty minutes additional time to fully function. However, once at work, she was able to fully perform all of her normal job duties.
Because of her tardiness, plaintiff received disciplinary notices from defendant. Plaintiff requested that defendant allow her to report to work fifteen to thirty minutes late each morning, with plaintiff making up the lost time by working through her lunch hours and break times, or working on Tuesday evenings when the office remained open until 8:30 p.m. In support of her request, plaintiff submitted a letter dated April 25, 2007, from her treating psychiatrist, Dr. Charles F. Martinson, confirming that the accommodation request was for medical reasons. Plaintiff's request was reviewed by a Mercer County physician who recommended that plaintiff remain on full-time duty, but that defendant accommodate plaintiff by allowing her to "[a]rrive fifteen - thirty minutes late in the morning to be made up at the end of the day." Nevertheless, on June 7, 2007, defendant's Chief of Administrative Services denied plaintiff's accommodation request.
On advice of her psychiatrist, plaintiff was again placed on leave of absence on July 19, 2007, and never returned to work with defendant. Defendant gained new employment on March 16, 2008, but in doing so, suffered a $9,000 reduction in salary.
On July 30, 2007, plaintiff filed a complaint against defendant alleging disability discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by failing to reasonably accommodate plaintiff's disability. In June 2009, defendant filed a motion for summary judgment. Plaintiff opposed, and in so doing, not only submitted a copy of Dr. Martinson's April 25, 2007 letter and defendant's reasonable accommodation request disposition form, but also her affidavit and a report from plaintiff's examining psychiatrist, Dr. Martin Weinapple. In his report, Dr. Weinapple recommended against plaintiff changing her medication regimen:
In reviewing Dr. Martinson's notes about Ms. Marazzo's medication, he refers to possible side effects to these medications with which she is being treated. He states that, as noted in the body of my report, that this is one of the reasons why he recommends an accommodation for her in the workplace. It would follow necessarily that the [regimen], structure and scheduling of these medications, therefore, are important in helping Ms. Marazzo stabilize her moods. It would be unreasonable, in my opinion, with a high degree of medical probability, that this particular structure should be changed or tampered with in any way. It appears that Dr. Martinson has established a specific schedule. Ms. Marazzo is a very meticulous person who likes to adhere to specific structure and wants to keep everything in place and it would be my opinion that changing this in any way, shape or form would further undermine the treatment that she is progressing with under Dr. Martinson's care.
It is somewhat unusual for those kinds of changes to take place, I must say. Generally, psychotropics are prescribed on specific schedules. For example, [8:00 a.m.] and [8:00 p.m.] or whatever the structure is, such as 8:00, 12:00, 4:00 etc. and the patients after time get used to this and any changes in this structure can lead to difficulties such as missing doses. To me, the accommodation would be more feasible from the workplace's point of view than it would be to change the ...