On appeal from Division on Civil Rights, Department of Law & Public Safety, Docket No. EF14HB-53806.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
Complainant, Yolanda Hernandez, appeals from a November 13, 2009 order of the Division on Civil Rights (Division) finding there was no probable cause to credit the allegations of discrimination asserted by her and closing its file. Complainant contended her employer, MW Manufacturers, Inc. (MW), discriminated against her by refusing to accommodate her disability resulting from an injury to her wrist that occurred at work by not offering her a "light duty" clerical position. We affirm.
In March 2004, complainant was hired by MW as a machine operator, assembling windows. She injured her left wrist at work on April 19, 2007, underwent surgery in July 2007, and returned to work on August 22, 2007. The pain in her hand resurfaced on November 29, 2007, after which she received medical treatment. On December 6, 2007, she submitted a formal request for medical leave with a New Jersey temporary disability application completed by Dr. George A. Dendrinos. The request certified that complainant was unable to work due to the pain in her hand and further certified that she had been unable to work since November 30, 2007, but opined that she might be able to return to work on January 14, 2008.
In a letter dated December 10, 2007, MW notified complainant that her absence from work would be counted under the Family and Medical Leave Act (FMLA), 29 U.S.C.A. § 2601 to § 2654, but that MW could not hold a position beyond her date of exhaustion of FMLA leave, December 13, 2007. Accordingly, if complainant were still unable to work by that date, she would be terminated on December 14, 2007. MW's letter also advised that complainant could reapply for employment if her leave extended beyond December 14, 2007. Complainant, however, did not return to work by December 13, 2007, and never reapplied for employment.
On March 20, 2008, she filed a verified complaint with the Division alleging that MW discriminated against her based on her disability in violation of the New Jersey Law Against Discrimination (NJLAD), specifically, N.J.S.A. 10:5-4, -4.1, when it denied her requests for reasonable accommodations by not offering her a "light duty" clerical position in the office. Complainant admitted to the investigator, however, that she could not answer telephone calls due to her limited ability to speak or understand English. She also acknowledged that MW had no available clerical position but asserted it could have created one until her physician cleared her to return to assembling windows.
On February 10, 2009, complainant informed the Division that she was disabled and was currently, and potentially permanently, unable to perform any work that required the use of her hands. She further stated that MW's New Jersey facility was scheduled to close in April 2009, and although it had another facility in Virginia, she was not interested in working for MW, and had applied for Social Security benefits due to her permanent disability. On September 25, 2009, complainant confirmed that MW's New Jersey facility had closed and, commencing May 2009, she began receiving Social Security benefits due to her permanent disability deemed effective November 2007.
In its answer to the complaint, MW stated that complainant did not return prior to the expiration of her FMLA and, therefore, her employment had been terminated. It further stated that complainant did not request any light duty accommodations. Moreover, MW did not have any such position in the office that met complainant's restrictions.
On November 13, 2009, the Division issued a finding of no probable cause to credit complainant's allegations of unlawful discrimination that MW had refused to accommodate her disability. Instead, the agency's investigation revealed that complainant's disability prohibited her from performing the essential duties of her position. Moreover, it found complainant was accommodated by the employer with her requested medical leave of absence and MW had no alternative but to discharge complainant for failing to return from medical leave. The investigation additionally found:
Complainant had no clerical experience and that Respondent had no available clerical position as alleged. Complainant's suggestion that a position be created for her in Respondent's office that met her considerable limitations, lack of clerical experience and knowledge, and inability to communicate in English was not considered a reasonable accommodation.
On appeal, complainant argues that because upon her initial injury in April 2007, she was assigned to light duty and given office and housekeeping assignments for about three weeks, MW should have been required to create an indefinite light duty position for her based on her permanent disability. Complainant further asserts ...