United States District Court, D. New Jersey
Michael H. Berg, Esquire, Berg & Pearson, PC, Woodbury, New Jersey, Counsel for Plaintiff.
Vito A. Gagliardi, Jr., Esquire, Kerri Ann Wright, Esquire, Raquel Sara Lord, Esquire, Porzio, Bromberg & Newman, Morristown, New Jersey, Counsel for Defendant Lowe's Companies, Inc.
NOEL L. HILLMAN, District Judge.
This is an employment discrimination action brought by Plaintiff, Donald Davis, alleging that his former employer, Defendant Lowe's Companies, Inc., failed to appropriately accommodate Plaintiff after he suffered a workplace injury. Presently before the Court is the motion [Doc. No. 24] of Defendant for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Court has considered the submissions of the parties and has decided this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons that follow, Defendant's motion for summary judgment is denied.
On October 18, 2012, Plaintiff filed a civil action in the Superior Court of New Jersey, Law Division, Gloucester County, alleging violations of the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. (hereafter, "NLJAD"). Defendant removed the action to this Court on the basis of diversity jurisdiction. Plaintiff is a New Jersey citizen, and Defendant is a North Carolina corporation with its principal place of business in Mooresville, North Carolina. (Not. of Removal ¶¶ 9, 10.) The amount in controversy exceeds $75, 000. (Id. ¶ 11.) Accordingly, the Court exercises jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
A. Plaintiff's Employment Background
Prior to becoming employed by Defendant, Plaintiff worked as a carpenter and a contractor. (Pl.'s Supp. Statement of Disputed Material Facts in Opp. to Def.'s Mot. for Summ. J. (hereafter, "Pl.'s SOF") ¶ 1; Def.'s Response to Pl.'s Supp. Statement of Disputed Material Facts in Opp. to Def.'s Mot. for Summ. J. (hereafter, "Def.'s Opp.") ¶ 1.) Plaintiff worked in construction "practically his entire working life[, ]" including working as a self-employed sole proprietor performing home improvement. (Pl.'s SOF ¶ 2-3; Def.'s Opp. ¶ 2-3.) As a sole proprietor, Plaintiff replaced doors, fixed dry wall, repaired leaks, and performed other types of home improvements. (Pl.'s SOF ¶ 3; Def.'s Opp. ¶ 3.)
Plaintiff was hired by Defendant on or about September 13, 2008 as a Customer Service Associate in the Electrical Department at the Mantua, New Jersey store. (Def.'s Statement of Undisputed Material Facts in Supp. of Mot. for Summ. J. (hereafter, "Def.'s SOF") ¶ 1; Pl.'s Opp. to Def.'s Statement of Undisputed Material Facts (hereafter, "Pl.'s Opp.) ¶ 1.) Plaintiff's hourly rate of pay when he was hired was $14.20. (Def.'s SOF ¶ 1; Pl.'s Opp. ¶ 1.) In or about March 2009, Plaintiff applied for and received a promotion to the position of Plumbing Pro, with a commensurate raise in his hourly rate of pay to $15.62. (Def.'s SOF ¶ 3; Pl.'s Opp. ¶ 3.)
In or about January 2010, Plaintiff was again promoted, having applied for and received a position as a Project Specialist Exteriors (hereafter, "PSE"), with an increase in hourly rate of pay to $16.26. (Def.'s SOF ¶ 4; Pl.'s Opp. ¶ 4.) As a PSE, Plaintiff was required to sell exterior products, such as windows, doors, siding, roofs, and fencing. (Pl.'s SOF ¶ 8; Def.'s Opp. ¶ 8.) Plaintiff also went to customers' homes to prepare estimates for the installation of such products as windows, fencing, and roofing material. (Pl.'s SOF ¶ 9; Def.'s Opp. ¶ 9.)
The position of PSE was subsequently eliminated at the Mantua store, at which time Plaintiff was transferred to the position of Sales Specialist in the Flooring Department. (Def.'s SOF ¶ 5; Pl.'s Opp. ¶ 5.) There was no pay adjustment associated with Plaintiff's transfer. (Def.'s SOF ¶ 5; Pl.'s Opp. ¶ 5.)
B. Plaintiff's Workplace Injury
On or about July 26, 2011, Plaintiff injured his right shoulder at work when he and another employee were lifting a box that was approximately one foot off of the ground and weighed approximately 150 pounds. (Def.'s SOF ¶¶ 15, 16; Pl.'s Opp. ¶¶ 15, 16.) The store Human Resources Manager, Lori Weatherill, completed a Worker's Compensation Initial Injury Report for Plaintiff and sent him to a worker's compensation doctor. (Def.'s SOF ¶ 17; Pl.'s Opp. ¶ 17.) The worker's compensation doctors placed temporary restrictions on Plaintiff's physical activities. (Def.'s SOF ¶ 18; Pl.'s Opp. ¶ 18.) On August 30, 2011, Plaintiff had surgery on his shoulder and thereafter took a leave of absence to recover. (Def.'s SOF ¶ 19; Pl.'s Opp. ¶ 19.)
Upon Plaintiff's return to work, and due to his temporary restrictions, Plaintiff was assigned to greet customers at the front door. (Def.'s SOF ¶ 20; Pl.'s Opp. ¶ 20.) Plaintiff's title remained a Flooring Specialist at the same rate of pay. (Def.'s SOF ¶ 20; Pl.'s Opp. ¶ 20.) Plaintiff contends that in addition to greeting customers, his duties included assignment to various departments within the store, including the Flooring Department. (Pl.'s Opp. ¶ 20.) Defendant disputes that Plaintiff was assigned to various departments, but it is undisputed that Plaintiff was permitted to walk around the store and assist customers in various departments upon returning to work after his surgery. (Pl.'s SOF ¶ 52; Def.'s Opp. ¶ 52).
On or about March 21, 2012, Plaintiff reached maximum medical improvement. (Def.'s SOF ¶ 22; Pl.'s Opp. ¶ 22.) At that time, the restrictions on Plaintiff's physical activity were deemed to be permanent. (Def.'s SOF ¶ 23; Pl.'s Opp. ¶ 23.) The parties stipulate that as of March 21, 2012, Plaintiff's work restrictions were as follows: "No lifting greater than 10 pounds above chest level" and "No climbing." (Cert. of Raquel S. Lord, Esq. (hereafter, "Lord Cert."), Ex. Y ¶ 9.) On April 25, 2012, Plaintiff was further restricted to the following: "No pushing, pulling, moving, lifting or carrying greater than 50 pounds." (Id. ¶ 10.) These work restrictions remained unchanged from April 25, 2012 until the date of Plaintiff's separation from work with Defendant. (Id. ¶ 11.)
C. The Interactive Process
In late March 2012, Plaintiff met with Weatherill to discuss the Americans With Disabilities Act (hereafter, "ADA") accommodation process. (Def.'s SOF ¶ 24; Pl.'s Opp. ¶ 24.) Ms. Weatherill provided Plaintiff with an ADA Accommodation Request form to complete. (Def.'s SOF ¶ 26; Pl.'s Opp. ¶ 26.) Plaintiff completed the ADA Accommodation Request form on March 28, 2012, stating as follows therein:
I had a tear of Rotator Cuff. After surgery, I can't lift my right arm and can't lift any more than 10 lbs. to chest. And can not climb. I would like a job to accommodate this.
(Lord Cert., Ex. K.) Plaintiff also noted on the form, in connection with a request for any additional information that would be useful in processing the accommodation request, that he still had "full use of left arm" and that he had been employed by Defendant since September 13, 2008. (Id.)
Weatherill then reached out to the Area Human Resources Manager, Karen Ortley, to discuss accommodating Plaintiff's permanent restrictions. (Def.'s SOF ¶ 29; Pl.'s Opp. ¶ 29.) Ortley reviewed documentation relative to Plaintiff's medical condition and contacted Brenda Ricketts, a Lowe's Accommodation Specialist, in an effort to identify an accommodation for Plaintiff. (Def.'s SOF ¶¶ 30-31; Pl.'s SOF ¶¶ 30-31.) Ortley discussed with Weatherill various positions that were available that would accommodate Plaintiff's permanent restrictions. (Def.'s SOF ¶ 32; Pl.'s SOF ¶ 32.) These positions included cashier and a Customer Service Associate (hereafter, "CSA") at the front desk. (Def.'s SOF ¶ 34; Pl.'s Opp. ¶ 34.)
On May 30, 2012, Ortley instructed Weatherill to offer Plaintiff the position of a CSA at the front desk because it had a higher rate of pay than the cashier position. (Def.'s SOF ¶¶ 34, 40; Pl.'s Opp. ¶¶ 34, 40; Lord Cert., Ex. M.) This position, however, had a lesser pay rate than Plaintiff's preinjury position as a Sales Specialist in the Flooring Department. (Def.'s SOF ¶ 49; Pl.'s Opp. ¶ 49.)
On or about June 2, 2012, Plaintiff met with Weatherill and Store Manager Fred Cassi, at which time he was offered the position as a CSA at the front desk. (Def.'s SOF ¶ 41; Pl.'s Opp. ¶ 41; Lord Cert., Ex. O.) Plaintiff was advised that the CSA position would accommodate his physical restrictions. (Def.'s SOF ¶ 43; Pl.'s Opp. ¶ 43.) Plaintiff was provided with an "Interactive Process Form, " which described the accommodation offered:
Lowe's is offering you the position as Customer Service Desk Associate. Lowe's agrees to accommodate your request with no climbing, no lifting more than 50 lbs and no lifting more than 10 lbs above chest level."
(Lord Cert., Ex. N.) Plaintiff wrote on the form that he could not accept the position "because of the drop in pay[, ]" and noted that if a position as a PSE opened he would like to take that position. (Id.) Cassi suggested that Plaintiff think about the new position before making a decision. (Def.'s SOF ¶ 45; Pl.'s Opp. ¶ 45.) After the meeting, Weatherill completed "Interactive Meeting Notes, " in which she noted that Plaintiff had suggested the PSE position but such position did not meet his accommodations. (Lord Cert., Ex. O.)
Weatherill and Cassi then met with Plaintiff on June 5, 2012. (Def.'s SOF ¶ 46; Pl.'s SOF ¶ 46.) The "Interactive Meeting Notes" completed by Weatherill indicate that the parties again discussed the CSA front desk position but Plaintiff would not accept the position because he could not afford to live on the reduced salary. (Lord Cert., Ex. P.) ...