On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Cumberland County, Docket No. L-1035-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Parrillo,*fn1 Sabatino and Fasciale.
Plaintiff, Kelly Queen, a police dispatcher in the City of Bridgeton, filed a nine-count complaint against the City, its police department, business administrator (Arch Liston) and mayor (James Begley), alleging, among other things, and most pertinent for present purposes, disability discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, based on her denial of access to the City's donated sick leave bank program. She appeals the summary judgment dismissal of her complaint. Specifically, by order of June 29, 2011, the trial court dismissed with prejudice: the marital status discrimination claim contained in Count I; Count II (discrimination under Title VII of the Civil Rights Act of 1964); Count IV (intentional infliction of emotional distress); Count V (negligent infliction of emotional distress); Count VI (interference with contractual relations); Count VII (respondeat superior); and aspects of Count IX alleging misrepresentation.*fn2
After additional discovery, the residual claims in the one remaining count (Count I), alleging gender, disability and perceived disability discrimination under the LAD, were dismissed by order of October 6, 2011, which also denied plaintiff's motion to reconsider the previous dismissal. Plaintiff appeals from these two orders for summary judgment, and we affirm.
The proofs, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Plaintiff commenced employment with the City as a dispatcher/telecommunications officer on February 13, 2003. While at work on October 16, 2006, she felt ill with a racing heartbeat. She left work and the next day saw her family physician Dr. Judith Riley-Lowe, who referred plaintiff to a cardiologist, Dr. Michael J. Butler. He diagnosed her with tachycardia and dyspnea, each of uncertain etiology, and mitral valve prolapse, which was considered to be a potential cause of both conditions. A CT scan of the chest to rule out pulmonary embolism was negative. At a second visit on October 30, 2006, Dr. Butler performed a cardiovascular stress test. Plaintiff never returned to Dr. Butler, and from November through December 2006, she received no treatment.
Plaintiff had, however, returned to her primary care physician for a follow-up visit on November 6, 2006. Dr. Riley-Lowe recommended she not return until the end of January 2007, even though she had not experienced the same type of heart racing since the event on October 16, 2006. Plaintiff next saw Dr. Riley-Lowe on January 4, 2007 and once again on January 25, 2007, at which time plaintiff was cleared to return to work. Plaintiff returned to work on February 18, 2007.
By then, plaintiff had exhausted her annual allotment of ten sick days as well as her medical leave of absence, which the City had granted her under the Family Medical Leave Act (FMLA), 29 U.S.C.A. §§ 2601 to 2654. While out on leave, plaintiff had also requested access to the City's donated leave program (alternatively referred to as "sick bank"), instituted in 2003 under a collective bargaining agreement (CBA) negotiated between the City and plaintiff's union.
The declared purpose of the program is to "permit City of Bridgeton employees to donate earned sick time and/or vacation time on a voluntary basis to another City of Bridgeton employee who is suffering from a catastrophic health condition or injury which is expected to require a prolonged absence from work by the employee . . . ." To be eligible, a City employee must be "suffering from a catastrophic health condition or injury which necessitates said employee's prolonged absence from work and for which said employee has no availability to paid leave." To support such a claim, the employee must produce "acceptable medical verification from a physician or other licensed health care provider. The medical verification must indicate the nature, severity and anticipated duration of the disability resulting from the serious health condition or injury involved." The employee must contact his or her department head, who in turn will require medical documentation concerning the nature, severity and anticipated duration of the medical emergency involved. The department head will provide the proper forms to the eligible employee. Both the department head and the Business Administrator must approve of the eligibility of any employee before he/she can participate in the program.
Decisions and approvals regarding eligibility will be made on a case-by-case basis.
In support of her request for donated sick time, plaintiff submitted Dr. Riley-Lowe's notes, but not her medical records. On or about October 25, 2006, the City's business administrator, who had been designated to review program eligibility applications, denied plaintiff's request, finding her condition was not catastrophic based on such factors as ability to recover, length of illness, hospitalization, imminent death and inability to function in a normal capacity. The next day, plaintiff filed a grievance pursuant to the CBA, alleging the City violated the CBA by denying her access to the sick bank, and seeking donated leave time "retroactive to [her] last working day." Plaintiff's appeals through the next two tiers of the CBA grievance procedure were also denied.
Thereafter, both parties agreed to bypass the penultimate level of the grievance procedure and proceed directly to arbitration. Before the start of the hearing, the parties settled the grievance and memorialized their agreement:
The parties agree to settle the above grievance based upon permitting the grievant to invoke the procedures of Article 7 of the [CBA] without interference relative to donated medical leave if the employee's treating physician documents a ...