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April A. Alotto v. Ecsm Utility Contractors

December 15, 2010

APRIL A. ALOTTO, PLAINTIFF,
v.
ECSM UTILITY CONTRACTORS, INC.
AND EDWARD OPIO, INDIVIDUALLY, (JEI/AMD) T/A, D/B/A AND AS THE ALTER EGO OF ECSM UTILITY CONTRACTORS, INC. DEFENDANTS.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS, Senior District Judge:

Plaintiff April Alotto initiated this action against her former employer, ECSM Utility Contractors, Inc. ("ECSM") and Edward Opio, her former supervisor (collectively "Defendants").*fn1

Plaintiff alleges that Defendants failed to accommodate her disability and discriminated against her on the basis of her disability, in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Pending before the Court is Defendants' Motion for Summary Judgment.

I.

ECSM is a contracting company that performs work related to utility lines, including marking their locations. (Defs' 56.1 Stat. ¶2-3.)*fn2 ECSM is required by contract to send a utility locator to emergencies within two hours. (Id. ¶9.) As a result, ECSM's utility locators must perform on-call duties so they are available for emergencies during non-business hours. (Id. ¶8.)

Plaintiff began working for Defendants in April 2007 as a utility locator. (Defs' 56.1 Stat. ¶¶1-3; see also Pl's Dep. at 43:21-23.) Plaintiff worked on the Fiber Optic to the Premises Project ("FTTP") locating utility lines for the installation of fiber optic cables throughout New Jersey.*fn3 (Pl's Dep. 20:23.)

In September 2007, Plaintiff was first prescribed medication for insomnia, her alleged disability. (Pl's Ctr Stat. of Facts ¶5.) According to Plaintiff, once she takes her insomnia medication, she cannot drive a vehicle. (Pl's Dep. at 33:9-11.)

In February 2008, Plaintiff obtained a note from her doctor explaining that she suffered from insomnia and could not work on-call while taking sleep medication.*fn4 (Id. ¶10.) As a result, Plaintiff was permitted to be absent from on-call duties provided someone else was willing to work on-call for her.*fn5 (Defs' 56.1 Stat. ¶11; Pl's Resp. to Defs' 56.1 Stat. ¶11.) Plaintiff's immediate supervisor, Dan Davis, "covered 99%" of Plaintiff's on-call shifts. (Pl's Dep. at 50:10-11.) When Davis could not cover the shift, either he or Plaintiff would find someone else to cover the on-call time.*fn6 (Id. 51:1-7.)

Although it is not entirely clear, during the course of her employment, it appears that Plaintiff worked on-call three times: on November 22, 2007, February 20, 2008, and July 5, 2008. (See Pl's Dep. at 70:11-13; Id. at 93:12-17; Id. Ex. D-11.) Plaintiff did not take sleep medication on the nights she worked on-call. (Defs' 56.1 Stat. ¶14.) Plaintiff explained that "not being able to take my medication, not being able to get the proper amount of sleep that I require to function properly the next day, being on call affected my everyday duties, which reduced my production."*fn7

(Pl's Dep. at 92:4-8; see also Pl's Dep. at 54:20-22, 90:22-23.)

In June or July 2008, Plaintiff requested that her on-call area be moved closer to her home. (Defs' 56.1 Stat. ¶15; Opio Dep. at 20:9-13; Pl's Dep. at 81:16-24.) Defendants moved Plaintiff's on-call area as requested. (Defs' 56.1 Stat. ¶16; Opio Dep. 20:12-13; Pl's Dep. at 82:4-6.)

After working on-call on July 5, 2008, Plaintiff requested that she be removed completely from the on-call list because she felt that on-call duties prevented her from working at her full potential the next day. (Pl's Dep. at 95:23-25 to 96:1-2.) Defendants responded to Plaintiff's request in an email dated July 10, 2008, which stated:

We are aware of the doctors note [sic] and you will not be on call tonight. Since you cannot fulfill your job requirements of doing the on call do [sic] to medical reasons, I need you to provide me a doctors note indicating you have no restrictions to fulfill your job requirements as utility locator which includes, but not limited to ...


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