On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2237-09.
The opinion of the court was delivered by: Espinosa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 18, 2012 -
Before Judges Yannotti, Espinosa and Kennedy.
The opinion of the court was delivered by ESPINOSA, J.A.D.
In this appeal, we consider whether summary judgment was properly granted to an employer that required a long-term employee whose job performance was satisfactory to submit to random alcohol testing and terminated her employment when a test showed she had used alcohol. Because the record revealed that the basis for the testing and termination was the employee's voluntary disclosure that she was an alcoholic and not the result of inadequate job performance, the imposition of these conditions constituted direct evidence of discrimination. As a result, the burden of persuasion shifted to the employer, requiring it to show that the employment actions taken would have occurred even if it had not considered plaintiff's disability, see McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 525 (2003), a burden it failed to satisfy as a matter of law. We therefore conclude that summary judgment dismissing plaintiff's disability discrimination claim was inappropriate.
Many of the facts here are undisputed. As to those on which the parties disagree, we view the facts in the light most favorable to plaintiff. See R. 4:46-2(c).
In 2007, defendant ExxonMobil Research and Engineering Company
(ExxonMobil or defendant), required plaintiff A.D.P., an employee of
twenty-nine years, to sign an agreement that required her to totally
abstain from alcohol and submit to random breathalyzer tests as a
condition of her continued employment. At the outset, we emphasize a
fact that informs our
analysis. It is undisputed that plaintiff was not subject to testing
and termination here pursuant to a last chance agreement.*fn1
A.D.P. was not the subject of any pending or threatened
employment or disciplinary action. Indeed, the evidence includes
testimony from one ExxonMobil manager that the imposition of these
conditions was unrelated to her job performance and testimony from a
Human Resources Advisor that plaintiff's employment would have been
terminated when she failed a breathalyzer test even if she had been
performing in the top one-percent of her group.*fn2
The evidence therefore supports a conclusion that A.D.P. was subject
requirements and fired when a breathalyzer test revealed alcohol use
because she voluntarily disclosed she was an alcoholic and enrolled in
an inpatient rehabilitation program. This admission triggered
ExxonMobil's Alcohol and Drug Use Policy (the Policy) which, although
facially discriminatory, ExxonMobil defended as reasonable.
The motion judge agreed, granting summary judgment and dismissing plaintiff's complaint, which alleged that (1) defendant violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by discriminating against her because of her disability; and (2) that her termination violated public policy, see Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980). As noted, summary judgment was erroneously granted on plaintiff's LAD claim. However, we conclude, for the reasons that follow, that summary judgment was appropriate to dismiss her Pierce claim.
Plaintiff was initially hired by a predecessor company as a research technician in 1978. She received promotions in 1983, 1985, 1987, 1990, 1993, 1998 and 2000. ExxonMobil evaluates its employees on an annual basis, ranking them in order from highest performing employees to the lowest. Through much of her career, A.D.P. was consistently ranked as a top performer. Hans Thomann, who later supervised plaintiff, described her in the earlier years as "the go-getter. She was the go-to person to get things done."
In 2004, plaintiff's husband died. She suffered from depression thereafter, as noticed by her co-workers, and other medical conditions. Nonetheless, in April 2005, she was promoted to the position of Senior Research Associate. In this new position, her ranking dropped but she remained in the middle third of employees.
ExxonMobil had a "performance improvement plan" for employees who failed to meet performance expectations, typically reserved for the bottom tenth percentile of employees, which could result in termination if the employee failed to improve. Plaintiff was never put on such a plan.
The Policy that ExxonMobil applied to plaintiff states, in part:
Exxon Mobil Corporation is committed to a safe, healthy, and productive workplace for all employees. The Corporation recognizes that alcohol, drug, or other substance abuse by employees will impair their ability to perform properly and will have serious adverse effects on the safety, efficiency and productivity of other employees and the Corporation as a whole. . . . Being unfit for work because of use of drugs or alcohol is strictly prohibited and is grounds for termination of employment. . . .
The Corporation recognizes alcohol or drug dependency as a treatable condition. Employees who suspect they have an alcohol or drug dependency are encouraged to seek advice and to follow appropriate treatment promptly before it results in job performance problems. . . .
No employee with alcohol or drug dependency will be terminated due to the request for help . . . or because of involvement in a rehabilitation effort.
On August 17, 2007, plaintiff voluntarily disclosed to a nurse at ExxonMobil that she was an alcoholic and intended to check herself into a rehabilitation program to address her alcohol dependency and depression. Plaintiff was not the subject of any pending or threatened disciplinary action. There was no evidence that she had consumed alcohol or was intoxicated at work, let alone that she had violated ExxonMobil's Policy by being "unfit for work because of use of drugs or alcohol[.]" And, she had not been advised that her job performance had fallen to an unacceptable level. Both Katharine Ramos, defendant's Products Research Human Resources Advisor, and Rose Villarreal, a Human Resources Manager, testified they first learned that plaintiff was an alcoholic when she self-reported and was hospitalized.
Plaintiff was hospitalized at Carrier Clinic from August 20 to September 8, 2007, and participated in outpatient treatment afterward at Hunterdon Medical Center. Following treatment, plaintiff met with defendant's representatives and signed an after-care contract on October 29, 2007. The after-care contract was required by the Policy, which provides in pertinent part:
Any employee returning from rehabilitation will be required to participate in a company-approved aftercare program. If an employee violates provisions of the employee Alcohol and Drug Use policy, appropriate disciplinary action will be taken. . . . If an employee suffering from alcohol or drug dependency refuses rehabilitation or fails to respond to treatment or fails to meet satisfactory standards of effective work performance, appropriate disciplinary action, up to and including termination, will be taken. [(Emphasis added).]
Plaintiff testified that she signed the contract because she felt "threatened" that if she did not sign it, she would lose her job. Linda Hofmann, a planning manager, testified that it was her understanding that, once plaintiff self-reported her alcoholism, she was required to sign the contract as part of ExxonMobil's after-care program. When asked if A.D.P. was required to sign the contract because of any performance issues, Hofmann stated, "No. Unrelated."
The after-care contract provides in part:
As [defendant's] employee, I am willing to fulfill the following conditions to further my recovery from chemical dependency and reassure my employer of my commitment to recovery:
I will maintain total abstinence from alcohol and drugs not prescribed by a physician familiar with my state of recovery. . . .
I will actively participate in: (1) treatment for chemical dependency for the duration of the Primary Treatment Program;
(2) After-Care including clinical substance testing for a minimum of two (2) years after completion of the Primary Treatment Program; and, (3) monitoring for an additional three years.
I will follow the treatment plan identified for me by my Treatment Provider(s) and my  After-Care Counselor.
When released to return to work I will maintain acceptable work performance and will be subject to periodic and unannounced alcohol and drug testing. The frequency of drug and alcohol testing will be determined on an individual basis taking into consideration my rehabilitation progress and the type of chemical dependency for which I received treatment. A positive alcohol or drug test result or refusal to submit to periodic testing is grounds for discipline which is most likely to be termination of employment. [(Emphasis added).]
It is undisputed that employees not identified as alcoholics were not required to sign such a contract and were not subject to alcohol testing except for cause, as set forth in the Policy:
[ExxonMobil] may also require employees to submit to . . . alcohol and drug testing where cause exists to suspect alcohol or drug use, including workplace incidents. Unannounced periodic or random testing will be conducted when an employee meets any one of the following conditions: has had a substance abuse problem, or is working in a designated position identified by management, a position where testing is required by law, or a specified executive position. A positive test result or refusal to submit to a drug or alcohol test is grounds for disciplinary action, including termination. [(Emphasis added).]
Aside from her admitted alcoholism, none of the conditions identified as a basis for testing applied to plaintiff. Between October 29, 2007 and August 20, 2008, ExxonMobil administered nine random breathalyzer tests to plaintiff, all of which she passed. Two days after she passed the last of these tests, plaintiff was required to take additional breathalyzer tests. The laboratory report describes the tests as "random," indicating they were administered pursuant to the after-care contract she was required to sign. No evidence was presented that she was intoxicated or that her behavior that day gave defendant reasonable cause to believe she ...