NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4881-10.
Daniel B. Zonies argued the cause for appellant.
Larry J. Obhof, Jr. (Baker & Hostetler, LLP) of the Ohio and Illinois bar, admitted pro hac vice, argued the cause for respondents (Littler Mendelson, PC, and Mr. Obhof, attorneys; Todd H. Lebowitz (Baker & Hostetler, LLP) of the Ohio bar, admitted pro hac vice, Mr. Obhof and Eric A. Savage, on the brief).
Before Judges Maven and Hoffman.
Plaintiff Carolyn Verhoorn appeals the dismissal of her claim against defendants for violation of both the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirm.
The following facts are derived from evidence submitted by the parties in support of, and in opposition to, defendants' summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff, a New Jersey resident, worked as a warehouse associate for Cardinal Health 101, Inc. (Cardinal Health) from November 2002 until March 2010, when her employment was terminated after she failed to meet her production quota for thirteen consecutive weeks.
Cardinal Health operates a pharmaceutical products distribution business. The company receives bulk shipments of pharmaceuticals and over-the-counter (OTC) products from manufacturers, stores them in large warehouses, and repackages them in smaller quantities for use in hospitals and medical offices, or resale in pharmacies. The products are stacked on shelves and retrieved by warehouse associates to fill customer orders.
Before December 2009, warehouse associates had specialized roles. Pickers were responsible for retrieving products from shelves and placing them in batch carts; quality control checkers were responsible for checking the picked orders to ensure they were filled correctly. Plaintiff worked as a quality control checker until December 2009. At that time, Cardinal Health instituted a new system called "Own Your Own Batch Cart, " which eliminated quality control checkers as a separate position; instead, all warehouse associates were required to pick the products needed to fill their own batch carts and then quality check their own work.
When plaintiff started working in the OTC section of the warehouse in December 2009, all associates were required to pick 150 lines per hour. In her first week, plaintiff averaged only 100 lines per hour. Plaintiff indicated she had trouble picking items from the top shelves due to her height (four feet and ten inches). She claimed that other employees had similar problems retrieving products from the top shelf but many of them climbed on the lower shelves to reach the top shelf, effectively using the lower shelves as a ladder. Plaintiff explained that she could not climb on the shelves because she had two artificial hips; she further claimed that her supervisors, defendants Joel Darland and David Barr, knew of her hip replacement surgery.
Plaintiff testified at deposition that another supervisor, Tyrese Weston, encouraged her and provided her with coaching, including tips to improve her speed and strategies for picking products and navigating through the aisles. To assist warehouse associates in reaching the top shelf, supervisors provided step stools and metal grabber sticks with a hook on the end. Nevertheless, plaintiff consistently failed to meet the production quota of 150 lines per hour. For the thirteen-week period before her termination, ...