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Victor v. State

September 13, 2010

ROY M. VICTOR, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, NEW JERSEY STATE POLICE, SGT. ERIC ESTOK, DR. DONALD IZZI, CAPT. SALVATORE MAGGIO, AND LT. PAUL WAGNER, DEFENDANTS-RESPONDENTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 401 N.J. Super. 596 (2008).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether an adverse employment consequence is an essential element of a plaintiff's claim that his employer discriminated against him by failing to accommodate his disability.

Plaintiff Roy Victor, who is employed as a New Jersey State Trooper, sued defendants State of New Jersey, New Jersey State Police, and a group of separately-named individuals who were either his supervisors or medical personnel employed by the State Police, asserting discrimination claims based on race and disability pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

Plaintiff began his career with defendant New Jersey State Police in 1986 and served uneventfully until he sustained a back injury while on duty in 1995. From then until late 2003, that injury, together with a stress-related disorder that plaintiff attributed to a racially-discriminatory job site transfer in 1998, resulted in lengthy periods of time during which plaintiff was on medical leave, was off-duty, or was on limited-duty status. Prior to the date that is the focus of this appeal, plaintiff complied with all of the regulations concerning his status and throughout his lengthy periods of medical leave, off-duty status, and limited-duty status, he received his full pay and benefits and he was awarded regularly-scheduled longevity promotions in rank.

After several extended time periods during which plaintiff was in off-duty status because of his back injury or because of a recurrence of his stress disorder, plaintiff returned to work in April 2003, at which time he was approved to be on limited-duty work status. He remained in that status until December 8, 2003, at which time he successfully completed a functional capacity test, was cleared medically by a worker's compensation doctor and a division physician, and was returned to full-duty status by defendant Dr. Donald Izzi, who was the Director of Medical Services for the New Jersey State Police. Plaintiff reported for duty on December 11, 2003.

When plaintiff reported, he told the Assistant Station Commander, Sergeant O'Rourke, that he had injured his back at some point in time between December 8, when he was cleared for full-duty service, and December 10, the day before he reported. Although he said that he was injured, he had not called in and asked for medical leave, he had not consulted a personal physician, and he had not attempted to contact Dr. Izzi or any other Division medical personnel about a change in his duty status. Instead, he told Sgt. O'Rourke that he wanted to perform administrative tasks in the station rather than go on road patrol, because he thought that wearing the protective vest required of all full-duty officers while on road patrol would exacerbate his back injury. Sgt. O'Rourke agreed.

Lieutenant Warren Shakespeare, the Station Commander and the only officer authorized to alter a trooper's duty status, told plaintiff that he could not remain at the station and directed plaintiff to perform the work of a full-duty road trooper by reporting for road patrol duty. In response, plaintiff did not request sick leave, ask that he be permitted to visit the division doctor, or produce anything to document his claim that he was injured, but instead put on his protective vest and went out on road patrol. He stayed out on road patrol for four of the six hours that remained of his shift. At that point, he returned to the station and took sick leave for the final two hours of his shift and for each of the following three days when he would otherwise have been required to report for full duty.

There is no evidence in the record that plaintiff ever produced any documentation to support his claim that he suffered from a back injury on the disputed day in December. Plaintiff's failure to accommodate claim relates only to the four-hour period of time on December 11, 2003, when he was ordered to return to full duty as a road trooper after telling his supervisor that he had injured his back on one of the immediately preceding days.

The parties' arguments about whether an adverse employment consequence is one of the required elements of a failure to accommodate claim were raised before the trial court both during the charge conference and in a post-verdict motion for a new trial. Both times the trial court refused. In essence, the trial court reasoned that an adverse employment consequence was merely the means through which plaintiff proved employment discrimination damages, with the result that if plaintiff could prove some other form of damages, it became unnecessary. As a result, the jury instructions did not include any reference to adverse employment consequence as an element of plaintiff's proofs.

The jury returned a split verdict. The jury found for plaintiff only on his claims that defendant State Police had discriminated against him based on his disabilities through disparate treatment (other than in rankings and promotions), by retaliating against him because of complaints he filed with the Equal Employment Opportunity office of the State Police, and by failing to accommodate him on December 11, 2003, when he was sent out on the road. The jury awarded plaintiff a single lump sum of $65,000 as damages and $250,000 in punitive damages. Defendants moved for a new trial or for judgment notwithstanding the verdict, again raising, among other things, their argument about the required elements of a failure to accommodate claim. In denying that relief, the trial court reasoned "if you prove failure to accommodate, that failure is in and of itself an adverse employment action."

Defendants appealed, arguing that the jury charge was flawed because it omitted adverse employment consequence as an element of a failure to accommodate claim. The Appellate Division, in a published opinion, recognized that the issue is a novel one, and concluded that proof of an adverse employment action is a required element of a failure to accommodate claim under the LAD. The panel remanded for a new trial on all claims, noting that the jury's lump sum award of damages could not be appropriately molded.

The Supreme Court granted plaintiff's petition for certification limited to one issue: "whether a plaintiff must prove he suffered an adverse employment action as a result of his employer's failure to accommodate a physical disability under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49."

HELD: The Court concurs in the Appellate Division's judgment that the verdict must be reversed and the matter remanded for a new trial. The Court does so because, regardless of whether or not there is room in the Law Against Discrimination's strong protective embrace of persons with disabilities to recognize that there may be circumstances in which a failure to accommodate in and of itself gives rise to a cause of action, this plaintiff's claim for failure to accommodate cannot meet the proofs required on his prima facie case.

1. It is a frequent observation that we rely on the federal courts and their construction of federal laws for guidance in those circumstances in which our LAD is unclear. That general observation, however, cannot substitute for understanding the ways in which the long and rich history of our LAD and its interpreting regulations have repeatedly intersected with those federal laws and their related regulations. It is particularly true that understanding the Legislature's intent as expressed in our LAD's provisions relating to persons with disabilities requires an appreciation of its evolution in the context of the historical development of corollary rights on the federal level. The Court proceeds to trace and examine that history beginning with 1972 amendments to the LAD adding protections for the "handicapped" and enactment by Congress of the Rehabilitation Act of 1973, which has been the essential wellspring for the rights granted to persons with disabilities ever since. (Pp. 15-30)

2. All employment discrimination claims require the plaintiff to bear the burden of proving the elements of a prima facie case, but there is no single prima face case that applies to all employment discrimination claims. Instead, the prima facie elements of a claim vary depending upon the particular employment discrimination claim being made. What they traditionally share, however, is the requirement that plaintiff endure an adverse employment consequence as a result of the discriminatory act. For claims of disability discrimination, the first element of the prima facie case, that plaintiff is in a protected class, requires plaintiff to demonstrate that he or she qualifies as an individual with a disability, or who is perceived as having a disability, as that has been defined by statute. The second element requires plaintiff to demonstrate that he or she is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without a reasonable accommodation. Applying a literal reading to ADA provisions defining discrimination against person with disabilities suggests that a disability discrimination claim must include some form of adverse employment consequence. (Pp. 30-37)

3. Published decisions of New Jersey courts uniformly identify adverse employment consequence as one element of the prima facie case for disability discrimination. Those opinions do so, however, in part because they recite the familiar elements consistent with any employment discrimination case, and in part because the factual setting of each case included an adverse job consequence. Published opinions of New Jersey's Appellate Division and trial courts also have included adverse employment consequence in reciting the prima facie elements of a cause of action for failure to accommodate. The Court proceeds to examine New Jersey and federal cases, in particular Seventh Circuit opinions, noting that the Seventh Circuit has followed its own path, coming close to explicitly recognizing failure to accommodate as a freestanding cause of action. (Pp. 37-49)

4. Although the question remains unsettled in the federal courts, our LAD's broad remedial purposes and the wide scope of its coverage for disabilities as compared to the ADA support an expansive view of protecting rights of persons with disabilities in the workplace. The LAD's purposes suggest that the Court chart a course to permit plaintiffs to proceed against employers who have failed to reasonably accommodate their disabilities even if they can point to no adverse employment consequence that resulted. Although it is difficult for the Court to envision factual circumstances in which the failure to accommodate will not yield an adverse consequence, the Court cannot entirely foreclose the possibility of circumstances that would give rise to a claim for failure to accommodate even without an identifiable adverse employment consequence. However, the Court is constrained to refrain from resolving today the question of whether a failure to accommodate unaccompanied by an adverse employment consequence may be actionable. The Court does so because, in the end, this record is a poor vehicle in which to find the definitive answer to that important question. First, there is no evidence in this record that plaintiff was disabled on December 11, 2003, the only date when he asserts he was not accommodated. Second, there is no evidence that plaintiff sought a reasonable accommodation. The Court concurs in the Appellate Division's judgment that the verdict must be reversed and the matter remanded for a new trial. The Court does so because, regardless of whether or not there is room in the LAD's strong protective embrace of persons with disabilities to recognize that there may be circumstances in which a failure to accommodate in and of itself gives rise to a cause of action, this plaintiff's claim for failure to accommodate cannot meet the proofs required on his prima facie case. (Pp. 50-56)

The judgment of the Appellate Division is AFFIRMED as modified and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE HOENS's opinion.

The opinion of the court was delivered by: Justice Hoens

Argued October 27, 2009

In this appeal the Court is asked to consider whether an adverse employment consequence is an essential element of a plaintiff's claim that his employer discriminated against him by failing to accommodate his disability. The trial court concluded that the failure to accommodate was itself an adverse employment consequence, as a result of which plaintiff was only required to prove, as part of his prima facie case, that the employer failed to offer him a reasonable accommodation. The Appellate Division disagreed, reasoning that an adverse employment consequence is an essential element of all disability-based employment discrimination claims and concluding that plaintiff could not succeed on his failure to accommodate claim because he did not suffer any adverse employment consequence.

The question raised in this appeal, therefore, has been narrowly phrased in terms of whether there can be a "freestanding" failure to accommodate claim, that is, a claim based on a failure to accommodate a disability that does not result in any adverse employment consequence. Attempting to answer that question requires an understanding of the way in which protections for persons with disabilities have evolved through numerous state and federal statutes and their implementing regulations. Part and parcel of that understanding is an appreciation for the way in which the goals embodied in those statutes have been advanced by the protections that reasonable accommodations can and do afford persons with disabilities in the workplace. In the end, we conclude that plaintiff's failure to accommodate claim cannot succeed, but in doing so, we leave for another day a definitive answer to the question he sought to have resolved in this appeal.

I.

Plaintiff Roy Victor, who is employed as a New Jersey State Trooper, sued defendants State of New Jersey, New Jersey State Police, and a group of separately-named individuals who were either his supervisors or medical personnel employed by the State Police, asserting discrimination claims based on race and disability pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff's specific allegations,*fn1 which spanned the time period from 1995 through July 2004, included claims of failure to promote, disparate treatment, hostile work environment, and retaliation, all based on race and disability, as well as a claim that defendants failed to accommodate plaintiff when he sustained a back injury.

We need not recite in detail the factual assertions that were the subject of plaintiff's proofs at trial because they are fully set forth in the published decision of the Appellate Division, see Victor v. State, 401 N.J. Super. 596, 602-05 (App. Div. 2008), and because the issue before this Court rests on events that occurred on a single day during plaintiff's employment. For those reasons, except to the extent that a fuller factual explanation is required, we focus our recitation of the facts on the events of that day.

Plaintiff began his career with defendant New Jersey State Police in 1986 and served uneventfully until he sustained a back injury while on duty in 1995. From then until late 2003, that injury, together with a stress-related disorder that plaintiff attributed to a racially-discriminatory job site transfer in 1998, resulted in lengthy periods of time during which plaintiff was on medical leave, was off-duty, or was on limited-duty status.

The undisputed evidence in the record demonstrates that there are regulations governing how and under what circumstances a trooper is eligible to be classified as off-duty or limited-duty, and the manner in which a trooper is returned to full-duty status. In summary, a trooper who is injured while on full duty is entitled to sick leave, which a trooper can access simply by calling his or her assigned station and informing a supervisor. After taking an initial period of three sick days, the trooper is required to be examined by a division doctor and to produce medical documentation supporting the claimed injury or illness. In addition, the trooper is required to be seen by the same division doctor until the injury or illness is resolved and only the division doctor is authorized to change a trooper's duty status. A trooper who is on medical leave, or who is placed on off-duty or limited-duty status, receives full pay and benefits, and there is no pre-determined limit on the number of days that a trooper may be on leave or in a status other than full-duty. Prior to the date that is the focus of this appeal, plaintiff complied with all of the regulations concerning his status and throughout his lengthy periods of medical leave, off-duty status, and limited-duty status, he received his full pay and benefits and he was awarded regularly-scheduled longevity promotions in rank.

At all times relevant to this appeal, plaintiff was a Trooper I, for whom full-duty status meant that the trooper was deemed able to perform all of the physical and other duties of that position, including being on road patrol and wearing a protective vest. Throughout plaintiff's medical and stress-related periods of leave, he was seen regularly by defendant Dr. Donald Izzi, who was the Director of Medical Services for the New Jersey State Police. Dr. Izzi supervised the regional division doctors and essentially acted as plaintiff's division doctor during the times that are relevant to this dispute.

After several extended time periods during which plaintiff was in off-duty status because of his back injury or because of a recurrence of his stress disorder, plaintiff returned to work in April 2003, at which time he was approved to be on limited-duty work status. He remained in that status until December 8, 2003, at which time he successfully completed a functional capacity test, was cleared medically by a worker's compensation doctor and a division physician, and was returned to full-duty status by Dr. Izzi. He used December 10, 2003, as an approved holiday and reported for duty on December 11, 2003.

When plaintiff reported for duty that day, he told the Assistant Station Commander, Sergeant O'Rourke, that he had injured his back at some point in time between December 8, when he was cleared for full-duty service, and December 10, the day before he reported. Although he said that he was injured, he had not called in and asked for medical leave, he had not consulted a personal physician, and he had not attempted to contact Dr. Izzi or any other Division medical personnel about a change in his duty status. Instead, he told Sgt. O'Rourke that he wanted to perform administrative tasks in the station rather than go out on road patrol, because he thought that wearing the protective vest required of all full-duty officers while on road patrol would exacerbate his back injury. Although Sgt. O'Rourke had no authority to alter any trooper's duty status, he was willing to agree to plaintiff's request.

Lieutenant Warren Shakespeare, the Station Commander, was the only officer authorized to alter a trooper's duty status. When he arrived, he spoke with Dr. Izzi and confirmed that plaintiff had been cleared for full duty and had not sought medical authorization for a change in duty status. Shakespeare then told plaintiff that he could not remain at the station and directed plaintiff to perform the work of a full-duty road trooper by reporting for road patrol duty. In response, plaintiff did not request sick leave, ask that he be permitted to visit the division doctor, or produce anything to document his claim that he was injured, but instead put on his protective vest and went out on road patrol. He stayed out on road patrol for four of the six hours that remained of his shift. At that point, he returned to the station and took sick leave for the final two hours of his shift and for each of the following three days when he would otherwise have been required to report for full duty.

At the end of that period of time, plaintiff was seen by two different division physicians and was subsequently placed on off-duty status based on a complaint relating to his pre-existing depression and stress disorder that was supported by a report from his treating psychologist. There is no evidence in the record that plaintiff ever produced any documentation to support his claim that he suffered from a back injury on the disputed day in December.

II.

Although plaintiff's disability discrimination complaints are intertwined to some extent with his racial discrimination complaints, and although his disability complaint has components relating to his psychological and physical disorders, his failure to accommodate claim is narrowly focused. That claim for relief relates only to the four-hour period of time on December 11, 2003, when plaintiff was ordered to return to full duty as a road trooper after telling his supervisor that he had injured his back on one of the immediately preceding days. It is therefore against that limited factual background that we must consider plaintiff's failure to accommodate claim.

The parties' arguments about whether an adverse employment consequence is one of the required elements of a failure to accommodate claim were raised before the trial court both during the charge conference and in a post-verdict motion for a new trial. When defendants requested a charge that included adverse employment consequence as an element of plaintiff's proofs, the trial court refused, commenting,

[Plaintiff] says he sustained psychological injury as a result of the treatment of him when he came back on December 11th and they refused to accommodate his handicap by allowing him to stay in the station.

So he's claiming that he was injured as a result of the... failure to accommodate his handicap. So that, to me, I mean, I don't need to get into an adverse employment action. He has to prove his damages.

In essence, the trial court reasoned that an adverse employment consequence was merely the means through which plaintiff proved employment discrimination damages, with the result that if plaintiff could prove some other form of damages, it became unnecessary. When defendants reiterated their charge request after closing arguments, the trial court again refused, continuing to treat adverse consequence as a form of damages, and explaining that usually the failure to accommodate comes up in the context of terminations or transfers, demotions and that sort of thing. But as I explained on the record yesterday, the claim here is that he suffered psychological injury by the failure to accommodate him and the stress that was attendant with that day on December 11th and to me that was sufficient under the circumstances.

In charging the jury, the trial court explained the failure to accommodate in terms of a failure to engage in an interactive process to accommodate, instructing as follows:

When an employee seeks an accommodation for a disability, the employer is required to engage in an interactive process as part of a good faith effort to identify the precise limitations resulting from a disability and potential reasonable accommodations that could overcome those limitations. A failure to accommodate is ...


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