May 13, 2010
JENNIFER MARAZZO, PLAINTIFF-APPELLANT,
MERCER COUNTY BOARD OF SOCIAL SERVICES, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 20, 2010
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 patient's structure and point of view as she is beginning to show progress with the current medication [regimen] that she was on.
In her affidavit, plaintiff stated in relevant part:
I functioned well on my return to work, but because of the change in the types and dosages of the medications that I was taking, it was impossible for me to consistently start work at the Board at 8:30 a.m.
Arriving to work at 8:30 a.m. for me is not simply setting my alarm clock at the appropriate time to leave enough time to shower, dress and drive to work. The side effects from the medications that I must take to control my depression have a profound effect upon my ability to take the step from sleep to full function.
I had great difficulty falling asleep. Once I was able to fall asleep, I fell into a very deep sleep which made me unable to hear any of my alarms or respond to external stimuli without assistance. I slept so deeply that I would not wake when I had to urinate and consequently needed to sleep with a bed pad.
My morning dose had to be taken prior to starting work, and the evening dose could not be taken any sooner than 12 hours later.
The majority of the medications which caused drowsiness were prescribed to be taken in the evening so that I could better function during the day. It was not possible for me to alter the times I took my medication without compromising my ability to participate in various activities of daily living such as therapy and exercise. Even if it  were possible to change the medication regimen, the side effects would not dissipate overnight. It would potentially take several weeks before I would feel a change. I know this from personal experience with the many medication changes that have been prescribed for me, since my initial diagnosis.
On July 24, 2009, the trial court granted summary judgment determining that plaintiff's claim was meritless. Although the court acknowledged that plaintiff suffers from depression, it found plaintiff had failed to explain why she could not take her medications one half earlier in the evenings and wake up one half earlier in the mornings, thus allowing her to arrive on time as required by her work schedule.
We have a woman who has an issue unquestionably so. She takes medication for it unquestionably so. She's on a given regime unquestionably so. She comes to work 15 or 30 minutes late every day. She's asking for an accommodation because of her medicine schedule that her workplace accommodate her as opposed to taking the medication 30 minutes sooner and there's nothing in the record to suggest that that can't be done other than the fact that she's used to the regime that she is undertaking now. But, that's as far as it goes.
I don't know what a jury would do with this case. What kind of fact do they have to deal with? Ultimately, really they have none. The entire matter as it's presented to the [c]court is something that's within her control. She created the situation.
It's not a situation she has physical issues that she cannot deal with and have to be accommodated.
This is an issue that's created solely because she and her doctors have decided that she's going to take medication at a given time and there is nothing that suggests you can't take it 30 minutes sooner and that would obviate the entire position.
I just never, ever seen anything like it and I don't think . . . that there's any decision of law in this State that supports the position taken by the plaintiff. Consequently, the application is granted . . . .
On appeal, plaintiff argues that the trial court erroneously granted summary judgment because genuine issues of material fact existed in the record. Plaintiff contends that the trial court "effectively disregarded an abundance of expert- supported evidence confirming plaintiff's psychological disability and the necessity of accommodation."
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a rational jury can draw from the evidence." Brill, supra, 142 N.J. at 535. To make the determination, the judge must accept as true all evidence that supports the position of the party defending against the motion and accord him or her the benefit of all legitimate inferences which can be deduced therefrom. Ibid. If reasonable minds could differ, the motion must be denied. Ibid. The "essence of the inquiry" is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)).
The LAD protects an individual suffering from a non-physical disability in the workplace. N.J.S.A. 10:5-4.1; N.J.S.A. 10:5-5(q); Viscik v. Fowler Equip. Co., 173 N.J. 1, 15-16 (2002). To prove a non-physical disability, "a plaintiff must prove that he or she is suffering (1) from any mental, psychological or developmental disability (2) resulting from an anatomical, psychological, physiological or neurological condition that either (a) prevents the normal exercise of any bodily or mental functions or (b) is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques." Viscik, supra, 173 N.J. at 16.
There are two categories of disability discrimination: disparate treatment, and the failure to reasonably accommodate the employee's known disability. Id. at 19-20; Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J. Super. 385, 397 (App. Div. 2002).
The LAD does not specifically speak to reasonable accommodation. Potente v. County of Hudson, 187 N.J. 103, 110 (2006). However, the courts and the Department of Law and Public Safety have. Ibid; Tynan, supra, 351 N.J. Super. at 396-97. The Administrative Code provides that an employer must "make a reasonable accommodation to the limitations of an employee . . . who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business." N.J.A.C. 13:13-2.5(b).
However, before the employer is required to provide the employee with an accommodation, the employee must first request it. Tynan, supra, 351 N.J. Super. at 399. Once the employee makes a request for an accommodation, "'both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.'" Id. at 400 (quoting Taylor v. Phoenixville School District, 184 F.3d 296, 312 (1999)). Moreover, [t]o determine what appropriate accommodation is necessary, the employer must initiate an informal interactive process with the employee. This process must identify the potential reasonable accommodations that could be adopted to overcome the employee's precise limitations resulting from the disability. Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation. [Ibid. (internal citations omitted).]
Because the failure to accommodate is an act that may prove discrimination, Victor v. State, 401 N.J. Super. 596, 614 (App. Div. 2008), certif. granted, 199 N.J. 542 (2009), the employer's lack of engagement "in an interactive process to determine the need and availability of a reasonable accommodation, supplements the requisite presentation of a prima facie case of discrimination." Ibid.
Here, viewing the evidence most favorably for plaintiff, we conclude the trial court erred in granting the motion for summary judgment. Plaintiff presented evidence that she suffers from depression; she is required to take psychotropic medications at night, causing her to fall in a comatose-like sleep from which she has difficulty awakening; she requested defendant allow her to report to work fifteen to thirty minutes late, while making up that lost time by working through her lunch hours, break times or on Tuesday evenings when defendant's office remains open until 8:30 p.m.; the County's physician supported her accommodation request; and defendant failed to engage her in an interactive process to determine the extent of her need and of defendant's ability to reasonably accommodate her need. It was not the trial court's function to weigh the evidence and determine the outcome, but only decide if a genuine issue of material fact existed. Brill, supra, 142 N.J. at 520.
Stated otherwise, the evidence was not so one-sided that the trial court should have decided that defendant should prevail as a matter of law. Ibid.
Reversed and remanded.
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