August 30, 2013
YOLANDA WHITE, Plaintiff-Appellant,
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10011-09.
Ryan Lockman argued the cause for appellant (Mark B. Frost & Associates, attorneys; Mr. Lockman, on the briefs).
Cheryl A. Citera, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Citera, on the brief).
Before Judges Waugh and Haas.
Plaintiff Yolanda White appeals the Law Division's July 13, 2012 order granting summary judgment and dismissing her claim for disability discrimination against defendant University of Medicine and Dentistry of New Jersey (UMDNJ). We reverse and remand for trial.
We discern the following facts and procedural history from the record on appeal.
In 2002, UMDNJ hired White to work in the Emergency Medical Services Department (EMS) at University Hospital (Hospital) in Newark. She was hired to work as an emergency medical technician (EMT). Her prior experience, dating back to 1995, included work as an EMT and 9-1-1 dispatcher. She was also employed as a police and fire dispatcher in Maplewood for one or two years after starting at the Hospital.
During the course of her employment at the Hospital, in addition to her EMT certification, White held certifications as a basic telecommunicator, emergency medical dispatcher, basic communications officer instructor, and emergency dispatch instructor. She had a clean disciplinary record and was characterized as a "good employee" by her EMS supervisor.
In July 2005, she was injured while on duty. A patient, whom she and her partner were assisting, began flailing her arms and threw her head back, hitting White's head at the left eye orbit. White was subsequently diagnosed with post-concussive syndrome and referred to a specialist in vision and brain injuries. The expert prescribed corrective lenses to address White's vertigo and dizziness.
Because White was unable to perform her EMT duties, she was placed on the Hospital's rehabilitation adjustment program for several months. She was initially out sick and then assigned to modified duty during that time. White was then returned to active status.
However, after a June 2006 medical evaluation on behalf of the Hospital, White was restricted to lifting weights no greater than thirty-five pounds and also restricted from driving. The evaluation concluded that she was able to perform other duties, such as dispatching. It did not state that the restrictions were permanent.
Because of her work limitations, White was transferred to the dispatch center on June 29, 2006, "to evaluate her ability to work in the 9-1-1 Communication Center." The dispatch center has call-takers and dispatchers, with the former requiring fewer years of experience. White states she had the required qualifications for both positions. At the time of her transfer, White began receiving call-taker training, apparently with a view to assigning her to a dispatcher position. According to White, another EMT had received a similar transfer following an injury.
During the first week of call-taker training, White had problems viewing the computer screen. She informed her dispatch-center supervisor of that fact. However, White states the problems stopped after the first week. In a July 25 letter, White's EMS supervisor informed her that she was being put on unpaid leave for thirty days, during which time she could investigate other available positions within UMDNJ. According to the letter, the action was taken because of the weight-lifting limitation and the fact that "it is apparent that you are having significant issues with being able to focus on the computer screens, leading to your inability to perform as a dispatcher" (emphasis added).
White spoke with her EMS and dispatch-center supervisors, informing them that she no longer had problems seeing the computer screen and was able to function as a call-taker or dispatcher. In the alternative, she asked for reasonable accommodation in EMS. They declined to rescind the letter. According to White, an employee in UMDNJ's human resources department told her she could not apply for open positions that she believed she could perform, although she did not recall the specific positions. White was terminated on August 29.
White filed suit against UMDNJ in November 2009, alleging that it discriminated against her on the basis of her disability in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42. UMDNJ answered and discovery ensued. After several trial dates, UMDNJ moved for summary judgment.
The motion was argued on July 13, 2012. In a brief oral opinion, the judge granted the motion. In granting UMDNJ's motion, the judge framed the primary issue before him as whether White could perform the duties of an EMT, and secondarily considered whether she had presented sufficient proof to raise a genuine issue of material fact as to her qualification to work as a call-taker and "subsequent application for further employment within UMDNJ." This appeal followed.
On appeal, White argues that there were genuine issues of material fact precluding summary judgment. We agree.
We review a grant of summary judgment under the same standard as the trial judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012); Chance v. McCann, 405 N.J.Super. 547, 563 (App. Div. 2009). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Rowe, supra, 209 N.J. at 38, 41. "The inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
The LAD prohibits employment discrimination based on a disability. N.J.S.A. 10:5-4.1. The burden of proving discrimination "remains with the employee at all times." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). In a reasonable accommodation case, a plaintiff must prove that: (1) she was disabled within the meaning of the LAD; (2) she "was qualified to perform the essential functions of the position of employment, " with or without reasonable accommodation; and (3) she "suffered an adverse employment action because of the disability." Victor v. State, 401 N.J.Super. 596, 614-15 (App. Div. 2008), aff'd in part, modified in part, 203 N.J. 383 (2010); see also Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J.Super. 78, 91 (App. Div. 2001).
The LAD also prohibits the discriminatory discharge of an employee based on a disability unless the employer "reasonably conclude[s]" that the employee's disability "'reasonably precludes the performance of the particular employment.'" Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 367 (1988) (quoting N.J.S.A. 10:5-4.1); see also Raspa v. Office of Sheriff of Gloucester, 191 N.J. 323, 338 (2007); Potente v. Cnty. of Hudson, 187 N.J. 103, 110-11 (2006). The LAD "leave[s] the employer with the right to fire or not to hire employees who are unable to perform the job, 'whether because they are generally unqualified or because they have a handicap that in fact impedes job performance.'" Jansen, supra, 110 N.J. at 374 (quoting Andersen v. Exxon Co., 89 N.J. 483, 496 (1982)). Thus, an employer is not required to accommodate an employee who cannot perform her essential job functions even with an accommodation. Hennessey v. Winslow Twp., 368 N.J.Super. 443, 452 (App. Div. 2004), aff'd, 183 N.J. 593 (2005); Tynan v. Vicinage 13 of the Superior Court, 351 N.J.Super. 385, 397 (App. Div. 2002); see also Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 150 (3d Cir. 2004) (affirming summary judgment for employer because LAD does not require employer to accommodate employee who "was unable to perform any of the functions of his job"); Van de Pol v. Caesars Hotel Casino, 979 F.Supp. 308, 313 (D.N.J. 1997) (granting summary judgment to employer because the LAD does not require employer to accommodate employee who "was not physically capable of safely performing any of his duties").
Generally, an employer must initiate a good faith "interactive process" regarding accommodations before determining that the employee's disability reasonably precludes performance of her essential job functions. Tynan, supra, 351 N.J.Super. at 400. Employers can demonstrate such good faith attempt by "meet[ing] with the employee[, ] . . . request[ing] information about the condition and what limitations the employee has, ask[ing] the employee what he or she specifically wants, show[ing] some sign of having considered employee's request, and offer[ing] and discuss[ing] available alternatives when the request is too burdensome." Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999). Participation in the interactive process is not a one-way street. It "is the obligation of both parties, " and the "employer cannot be faulted if after conferring with the employee to find possible accommodations, the employee then fails to supply information that the employer needs or does not answer the employer's request for more detailed proposals." Ibid.
Proof of the employer's failure to engage in the interactive process alone is not sufficient to meet the employee's prima facie burden. Donahue v. Consol. Rail Corp., 224 F.3d 226, 234 (3d Cir. 2000); Victor, supra, 401 N.J.Super. at 614. The employee still has the burden to prove the basic essential elements of a discrimination case, and must show that reasonable accommodation for her disability was possible even where the employer acted wrongfully in failing to engage in the interactive process to find such an accommodation. Victor, supra, 401 N.J.Super. at 614-15. As part of that burden, the employee must prove that she was qualified to perform the job and that "the accommodation could have been reasonably achieved." Id. at 615; see also Potente, supra, 187 N.J. At 110. The employee is not required during her employment to state what specific accommodation she is seeking. Tynan, supra, 351 N.J.Super. at 399. However, after she files a complaint, she is required, as part of her burden of proof, to provide examples of what the employer could have done to accommodate her specific needs. Donahue, supra, 224 F.3d at 234-35. Where a plaintiff is unable to show that a reasonable accommodation existed, "the employer's lack of investigation into reasonable accommodation is unimportant." Id. at 233; Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997).
Further, if an employee requests a transfer to another position, she has to prove that (1) "there was a vacant, funded position" available; (2) "the position was at or below the level of [her] former job"; and (3) she "was qualified to perform the essential duties of this job with reasonable accommodation." Donahue, supra, 224 F.3d at 230; see also Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997). "[A]n employer is not required to 'bump' another employee in order to reassign a disabled employee to that position." Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1019 (8th Cir. 2000); see also Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 257 (6th Cir. 2000); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999); Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 678 (7th Cir. 1998).
Taking the facts in the light most favorable to White, as we are required to do in reviewing a motion for summary judgment, a jury could conclude (1) that, after White was determined to be medically unable to perform her EMT duties, at least for the foreseeable future, she was transferred to the call center with a view to her filling either a call-taker or dispatcher position as a reasonable accommodation, (2) that there was an open position, (3) that she had earlier been found medically fit to act as a dispatcher, (4) that she had experience and certifications as a dispatcher and call-taker, (5) that she experienced some initial problems with the terminal and reported them to her supervisor, (6) that those problems resolved themselves after her first week or so, (7) that she was put on unpaid leave based on the perception that she could not perform the functions required of a call-taker or dispatcher without an update of the Hospital's prior medical evaluation that found her fit for a dispatcher position, (8) that she was told by a human resources employee that there were positions for which she could not apply and that she was qualified for those positions, and (9) that she was terminated as a result. Based on those facts, we conclude that a reasonable jury could find that UMDNJ violated its obligations to provide reasonable accommodation and engage in an interactive process as required by the LAD and cases cited above. It is immaterial at this stage that a jury could also find different facts and conclude that there was no violation of the LAD.
Having applied the appropriate legal standard and giving White the benefit of all favorable inferences, we have concluded she had at least one viable theory of liability. Consequently, we reverse the order granting summary judgment and remand for trial. We need not reach the question of whether there are other viable theories of liability.
Reversed and remanded.