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Kim Ann Whalen v. New Jersey Manufacturers Insurance Company

August 6, 2012


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2785-05.

Per curiam.


Argued December 13, 2011 -

Before Judges Carchman, Fisher and Nugent.

Plaintiff Kim Whalen, a project coordinator formerly employed by defendant New Jersey Manufacturers Insurance Company, appeals from an adverse jury verdict in a trial on her claims for disability discrimination and unlawful termination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. In this appeal, plaintiff claims that the trial judge erred in charging the jury as to defendant's failures to engage in an interactive process and reasonably accommodate her, as required by the LAD. Despite the extended discussion between counsel and the court regarding the content of the charge at a pre-charge conference, at the conclusion of the jury instructions, plaintiff indicated that she had no exceptions or objections to the charge. She now claims plain error. We reject that argument and affirm.*fn1


These are the facts adduced at trial. In February 2004, plaintiff commenced working for defendant as a project coordinator in its information technology (IT) department at an annual salary of $75,000. Her direct supervisor was Jan Foldes, a project management skill group leader. Foldes reported to Lorene Hartigan, an assistant secretary. As of September 2004, Hartigan reported to Mike Carey, the head of IT department.

Carol Ann Doran, who was "in charge of the . . . recruiting and hiring of staff," offered plaintiff a position with defendant. Plaintiff took handwritten notes of her telephone conversation with Doran, and she indicated that the offered full-time position required forty hours per week.

Defendant was reorganized in October 2004, such that the project coordinators were assigned to specific business areas. Plaintiff was assigned to workers' compensation underwriting, which she understood to be "one of the more lucrative lines of business for the company."

The IT department provided the electronic support for defendant's day-to-day business operations, which consisted primarily of writing workers' compensation and personal automobile insurance policies. According to both Foldes and Hartigan, the department was "critical." In Hartigan's deposition,*fn2 and at trial, she indicated that all of defendant's IT positions in 2004 were full-time.

Plaintiff's job description was as follows:

Responsible for managing one or more projects within the constraints of scope, quality, time and cost, and to deliver specified requirements. Responsible for overall project implementation, execution, delivery and customer satisfaction.

Responsible for the design, planning, implementation and closure processes which includes development of the scope of work and the management of time, cost, risk, communications, human resources, contracts, and quality within [i]nternal and external projects. Leads and manages the Project Team, with the authority and responsibility to run the project on a day-to-day basis.

Must ensure that the business is well[-] defined and understood by the Project Team . . . . Responsible for ensuring the project schedule, scope and cost [are] adhered to and reported to Stakeholders.

Foldes and Hartigan also stated that plaintiff's position was full-time, requiring forty hours per week. Hartigan explained that the job required full-time hours because "[a] lot of interaction is required." Foldes similarly explained that a project coordinator's key responsibility was to "facilitate . . . collaborations." Even plaintiff acknowledged that she knew of no other project coordinators who worked part-time or from home.

According to plaintiff, her "high[-]level responsibilities" included "planning a project, scoping it out, executing that project, controlling the project, and then closing the project out after it was completed." Specifically, plaintiff broke "each task [of a project] into smaller tasks for each team member" and prepared project plans. She managed the work but did not have supervisory authority over the members of her team, which "could" include a programmer, a developer, a database administrator and a business analyst.

Regarding the volume of work, plaintiff was assigned approximately ten projects at any given time, of which she was the sole coordinator. Each project could take "anywhere from a week" to "four to six months" to complete. Depending on business needs, plaintiff was assigned new projects "a few times [each] month." Plaintiff further testified that none of her assigned projects required immediate completion, but some "took priority because [of] . . . a State deadline . . . or some [other] kind of deadline involved."

Plaintiff, who was diagnosed with Lyme's Disease in 1995, experienced symptoms in May 2004, including "palpitations, headaches, muscle weakness, fatigue, [and] numbness." Her symptoms were much worse then as compared to January 2003, when she first saw her treating physician, Dr. Emilia Eiras. At trial, Eiras' deposition testimony was presented, and she was qualified as both an expert in the field of internal medicine and as plaintiff's treating physician. Eiras indicated that plaintiff suffered from "chronic Lyme['s] [D]isease and the consequences of it."

Because of plaintiff's symptoms in May 2004, Eiras ordered plaintiff not to work from May 18 to June 2, 2004, and thereafter ordered plaintiff to "decrease her work load to [four] days [per week] . . . until [August 2, 2004]." Plaintiff indicated that Eiras "thought it would be best for [her] to be out of work in order to get [] rest and recuperate[,] . . . [to] lessen the symptoms."

Erin Hannigan, defendant's leave coordinator in August 2004, observed that it was defendant's practice to send disability paperwork to any employee absent from work for six or more consecutive days. As long as the employee's alleged disability was supported by sufficient medical documentation, defendant routinely granted short-term disability (STD) leave in accordance with its policy.

Marcia Federico, the then-employee leave coordinator, advised plaintiff that she qualified for STD leave and was required "to update [her] disability file to substantiate [her] disability income continuation." Eiras and plaintiff completed a "Short-Term Disability Certification Form," dated May 27, 2004, which prohibited plaintiff from "work[ing] in any capacity" until June 7, 2004. Thereafter, she was permitted to "[r]eturn to work . . . on [a] limited work schedule [of] [four days per week] for at least two months." Effective June 9, 2004, plaintiff's compensation was "changed to 60% of [her] salary for each day of disability."

Plaintiff returned to work on June 7, and as a result of Eiras' recommendation, was not to work on Wednesdays until early August. Eiras subsequently sent defendant an updated STD certification form, dated July 28, 2004, which extended plaintiff's four-day workweek from June 7 to December 5, 2004. Defendant permitted plaintiff to continue working on a reduced work week of four days per week.

According to plaintiff, while she had a four-day workweek: no other project coordinators assisted her; her workload did not decrease; she had no projects requiring immediate completion; she was not late in completing projects; she ensured prior to each scheduled day off that she got "everything done in advance of being out"; and "everyone [on her team] was up to speed . . . [and] knew what they were doing."

Foldes noted that while plaintiff worked a four-day work schedule, Foldes "never [gave plaintiff] a verbal or written warning," she did not communicate to plaintiff that her performance was deficient, plaintiff's team members did not complain to her that plaintiff's absence adversely affected the team, and plaintiff's absence did not affect the assignment of projects. Likewise, plaintiff was not apprised that she was performing poorly while at defendant. However, in September 2004, Foldes noted that plaintiff was not actively managing her work but did not discipline her for it.

Elizabeth Hutchinson Nealy, a resource manager, assigned plaintiff a decreased workload while she was on the reduced work schedule. Nealy documented, in an event report, that plaintiff failed to attend a meeting on August 26, 2004. The report, dated August 27, 2004, was sent to Foldes, "just to inform" her, since Nealy was not plaintiff's supervisor.

In an August 31, 2004 letter, Hannigan informed plaintiff that her STD benefits would end on November 15, 2004, and enclosed long-term disability (LTD) paperwork for completion. Plaintiff and Eiras completed the paperwork in October 2004, wherein Eiras stated that plaintiff might be able to work more in six months' time.

On October 20, 2004, plaintiff spoke with Bill Lash of MetLife, defendant's LTD insurance provider. Lash informed plaintiff that she was disqualified from receiving LTD benefits because she "didn't meet [the] salary threshold." On October 21, 2004, plaintiff met with Hannigan to discuss her concerns about being verbally denied those benefits.

By e-mail dated October 28, 2004, plaintiff asked Hannigan for clarification as to whether: she would continue accruing paid time off; her salary would be reviewed after completion of her first year of employment; she would be "classified" as being on unpaid leave because she did not qualify for LTD benefits; and in taking one day off per week, she would have used approximately seven weeks of her STD leave as of November 15, 2004. Plaintiff also requested an in-person meeting. Hannigan responded that day, stating she would get back to plaintiff with answers and available meeting times.

Although Hannigan responded to most of plaintiff's questions, a meeting scheduled for November 4, 2004 never took place. Plaintiff e-mailed Hannigan additional questions on November 4, asking whether a provision in defendant's disability income program handbook stating that "[i]ndividuals who cease to qualify for benefits and do not return to work will no longer be eligible for employment with NJM" applied to her. She also inquired whether she could obtain a hard copy of defendant's STD and LTD benefits policies. Hannigan verbally informed plaintiff at noon on November 4, that the provision applied to her, and she could request a hard copy of the policies she had found posted on the Internet.

Shortly after her conversation with Hannigan on November 4, plaintiff e-mailed Hannigan again, advising her that she would "like to have options prior to [November 12]" and was "rather concerned and [felt] very stressed[] since [their] previous phone conversation led [her] to believe that [her] employment status [was] in limbo as of [November 15, 2004]." She asked when there would be "answers" for her because she felt "extremely uncomfortable waiting until the last minute to receive the information." Plaintiff indicated that what she meant by "options" was "[h]ow [defendant was] going to bridge the gap" between the expiration of her STD leave on November 15 and her scheduled full-duty return to work date of December 5. Hannigan claimed that she did not have authority to discuss options with plaintiff when her STD benefits were scheduled to end on November 15.

Hannigan responded to plaintiff's e-mail the same day, advising that she had scheduled a meeting for November 10 with plaintiff; Hannigan; Patricia Hartpence, an assistant secretary in human resources; and Edward Daley, vice president of human resources, to review plaintiff's file. The scheduled meeting with Hannigan, Daley, and Hartpence did not occur because plaintiff was in a training class on November 10.

Also in Hannigan's November 4 e-mail, plaintiff was reminded that defendant had scheduled an independent medical examination (IME) for her on November 11. Plaintiff thought it was strange that an IME was scheduled "so late in the process" but did not question Hannigan about it. Hannigan indicated that the IME was requested "towards the end of [plaintiff's STD leave,] as she had not been released to full[-]duty status yet, and [defendant] wanted to get a better understanding of how long th[e] partial disability schedule would last."

Eiras permitted plaintiff to return to full-duty status on November 9 without examining her. Plaintiff indicated that Eiras "felt that the stress from the fear of losing [her] job was causing [her] more anxiety and stress" and was adversely affecting her health. The IME scheduled for November 11 was cancelled because plaintiff had returned to full-duty status. In an e-mail dated December 1, 2004, from Hannigan to Daley, she wrote that the IME had been cancelled "for fear that the physician would come back and say she should be out of work." Hannigan later clarified what she meant by that statement: "when [plaintiff's] doctor released her to return to work full-duty on November 9[], the reason for the IME was no longer necessary, and there was no need to create . . . conflict" between plaintiff's "treating physician and an independent medical exam[ination] physician."

On November 22, plaintiff had a relapse of her Lyme's Disease symptoms. Eiras' note dated November 24, 2004, stated that plaintiff was "having a flare of her Lyme's Disease with [General Anxiety Order]" and was required to "decrease her work schedule to [four days per week] until [January] 2005." The STD certification form, dated December 1, 2004, stated that plaintiff was required to decrease her work schedule until March 1, 2005.

Plaintiff returned to work on November 30. On that day, an IME was scheduled for December 8. Also on that day, Hannigan notified plaintiff via e-mail that her STD benefits were due to expire "around" December 22, 2004. Hannigan indicated that this date reflected a miscalculation she made to plaintiff's benefit.

On December 1, 2004, plaintiff met with Peter Espeut, a senior employee relations specialist in defendant's Human Resources Department (HR) who reported to Daley. According to plaintiff, she asked Espeut "about the IME process and . . . if he could give [her] any information about that [] as well as what [her] options were going to be after the [STD leave] expired." At the time, plaintiff thought that potential options could be for defendant not to pay her for her scheduled day off, "working in a different department, [or] working in the same department but in a different position." In plaintiff's deposition, she claimed she suggested alternatives to Espeut such as "working from home, transferring jobs within the department as well as transferring jobs within the company."

At trial, plaintiff denied that she ever suggested to Espeut that she wanted her schedule permanently reduced to four days per week. However, in plaintiff's deposition, she conceded that she may have suggested a permanent time reduction in her schedule. According to plaintiff, Espeut told her that he needed to speak with Hartpence and Daley "in order to get [her] answers."

At trial, Espeut did not recall the specifics of the December 1 meeting with plaintiff but stated that his handwritten notes from the meeting included plaintiff's statements. Those notes indicated that plaintiff "want[ed] to change schedule from [forty] to [thirty-two hours] permanently" and "want[ed] options." The notes also stated that plaintiff felt she was receiving "[n]o explanation" regarding the scheduled IME. Espeut understood plaintiff's request to be for "[a] permanent accommodation to work [thirty-two] hours per week." Espeut did not seek any further clarification from plaintiff regarding whether she sought some other accommodation. According to Espeut, plaintiff did not ask for a part-time position in a different business area.

Espeut understood that plaintiff was seeking an accommodation, and he acknowledged it was either his or Daley's job to discuss accommodations with plaintiff. At no time did Espeut discuss with plaintiff what her options would be when her STD leave expired.

On December 1, 2004, Hannigan wrote an e-mail to Daley, updating him that plaintiff's STD leave was due to expire the week of December 20 and requesting a meeting with him "[a]t the end of [plaintiff's] disability . . . [to] review her employment options."

On December 3, plaintiff met with Hannigan and Christine Dyer, a nurse in HR. Hannigan asked plaintiff to clarify whether her doctor meant for her to return to full-duty work on January 1, 2005 or March 1, 2005. Hannigan also explained the purpose of the IME.

Also during the December 3 meeting, Hannigan explained to plaintiff that HR would review her file and discuss options with her after the IME, scheduled for December 8, occurred and her STD leave expired. At plaintiff's deposition, she recalled informing Hannigan and Dyer that ...

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