On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5367-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Simonelli.
In this disability discrimination case, plaintiff Steven Cattuna appeals from the August 28, 2009 Law Division order granting defendants' motion for summary judgment dismissing the complaint with prejudice. We affirm.
The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff, a New Jersey resident, began his employment as a salesman with Wechsler Coffee in 1988. During his employment, his sales territory included New York, New Jersey, Long Island and Rockland County, New York. He began his employment with defendant Sara Lee Corporation (Sara Lee) in June 1999, when Sara Lee purchased Wechsler Coffee. Plaintiff became a Product Specialist, and his sale territory was expanded to include Cleveland, New Hampshire and Philadelphia. To reach these locations, plaintiff traveled by airplane, train or automobile, sometimes traveling with other employees.
Plaintiff held various other sales positions with Sara Lee from 1999 to 2006, which also required him to travel. In July 2006, plaintiff became a Solution Sales Representative with a sales territory in lower Manhattan. His responsibilities included servicing existing customers and expanding Sara Lee's business in the lower Manhattan area through existing customers and new customers, with quotas for each. The position required plaintiff to travel from New Jersey to various locations in lower Manhattan on a daily basis during the work week.
In August 2006, plaintiff began suffering panic attacks when he traveled or was "stuck" in traffic in tunnels or on bridges, took public transportation, or was in airports, on an airplane, or in crowded places. These attacks occurred whether or not he was driving with someone but they were more intense when he traveled alone.
Plaintiff eventually sought medical treatment after the attacks became more frequent and worsened. In January 2007, his primary care physician initially diagnosed him with anxiety and depression, and prescribed anti-anxiety medication. Because plaintiff's "symptoms became too severe for him to continue working[,]" on January 17, 2007, plaintiff requested and received a leave of absence pursuant to the Family Medical Leave Act (FMLA).*fn1 Plaintiff returned to work in late February 2007. In March 2007, David Brozyna, M.D., a psychiatrist, diagnosed plaintiff with agoraphobia, situational panic attacks and anxiety, and prescribed anti-anxiety medication.
In June 2007, plaintiff suffered an attack while stopped alone in traffic in the Lincoln Tunnel while traveling to lower Manhattan. He became "too ill to work[,]" resulting in a second leave of absence. On July 31, 2007, Dr. Brozyna signed a disability certificate (the first disability certificate) confirming that plaintiff was "totally incapacitated" from June 27 to August 1, 2007 and could return to work after August 1, 2007, with the following limitations:
[Plaintiff] has been diagnosed [with] agoraphobia and situational panic attacks related to situation or places from which escape may be difficult or embarrassing or in which help may not be available in the event of a situationally predisposed [p]anic [a]ttack. These [situations] include being in a crowd, traveling in tunnels or bridges or on public transportation. An [a]ccommodation is appropriate.
At this time, defendant Cecilia Griffith was Sara Lee's Regional Human Resources Manager, defendant Jessica Thiebaud was the Solutions Sales Manager/Key Account Manager and plaintiff's manager, and Jon Marzetta was the Eastern Zone Director and Thiebaud's supervisor. On July 31, 2007, plaintiff advised Griffith and Thiebaud that he intended to return to work on August 2, 2007, and wanted to meet with them "to discuss changing my work environment and/or duties and workload as suggested by my physician in order to accommodate my health needs." Thiebaud offered to meet with plaintiff on August 2 or 3, 2007. Griffith asked plaintiff to "[p]lease let me know what accommodations you are looking for." Plaintiff did not return to work on August 2, 2007. Instead, he sent Griffith the first disability certificate.
Plaintiff exhausted his medical leave as of August 6, 2007. On August 7, 2007, plaintiff met with Griffith. Based on plaintiff's medical restrictions, Griffith did not believe that he could travel to New York City on a daily basis in order to fulfill his job, or that it would be possible to accommodate him so as to allow him to do so.
Griffith and Thiebaud discussed whether any of the New Jersey sales territories could accommodate plaintiff's medical restrictions. At the time, there were three sales territories that contained regions of New Jersey, all of which were occupied by other employees. One sales territory comprised almost all of northern New Jersey and Staten Island, and one comprised parts of Bergen County and Rockland and Westchester Counties in New York. These territories did not meet plaintiff's medical restrictions because they required travel over bridges. The third territory comprised southern New Jersey. Griffith and ...