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Richter v. Oakland Board of Education

Superior Court of New Jersey, Appellate Division

June 11, 2019

MARY RICHTER, Plaintiff-Appellant/ Cross-Respondent,
OAKLAND BOARD OF EDUCATION, Defendant-Respondent/ Cross-Appellant, and GREGG DESIDERIO, Individually and as Principal of the Valley Middle School, Defendant-Respondent.

          Argued February 4, 2019

          On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0742-15.

          Gerald J. Resnick argued the cause for appellant/cross-respondent (Resnick Law Group, PC, attorneys; Gerald J. Resnick, on the briefs).

          Betsy Gale Ramos argued the cause for respondent/cross-appellant (Capehart & Scatchard, PA, attorneys; Betsy Gale Ramos and Voris M. Tejada, on the briefs).

          Aileen F. Droughton argued the cause for respondents Oakland Board of Education and Gregg Desiderio (Traub Lieberman Straus & Shrewsberry LLP, attorneys; Aileen F. Droughton, of counsel and on the brief; Benjamin L. Rouder, on the brief).

          Before Judges Sabatino, Sumners and Mitterhoff.


          SUMNERS, J.A.D.

         This matter presents several questions for us to decide. On appeal, the first issue is whether an employee alleging disability discrimination for failure to accommodate under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, is required to establish an adverse employment action to avoid summary judgment dismissal. We also must determine whether the motion judge erred in denying the employee's cross-motion for summary judgment. In the event we determine there is no requirement to establish adverse employment action, the issue on cross-appeal is whether a bodily injury claim arising from the failure to accommodate allegation should be dismissed because it is barred by the exclusive remedy provision of the Workers' Compensation Act (the Compensation Act), N.J.S.A. 34:15-1 to -146. In addition, we must decide whether medical bills and lost wages can be introduced at trial, and if any worker's compensation lien should be applied to any award in plaintiff's favor.

         Plaintiff Mary Richter, a middle school teacher who suffers from diabetes, alleges she fainted while teaching due to low blood sugar levels when she was unable to eat lunch at an earlier class period and suffered significant and permanent injuries. She contends the accident would not have occurred had defendants Oakland Board of Education (the Board) and Gregg Desiderio granted her accommodation request to eat lunch earlier. The motion judge granted defendants' motion for summary judgment dismissing Richter's complaint, denied Richter's cross-motion for summary judgment, and denied reconsideration of the dismissal. The judge held that as a matter of law, Richter failed to prove a prima facie case of failure to accommodate her disability because she did not establish an adverse employment action. Thus, her bodily injury claim, which is the subject of the Board's cross-appeal, was denied as moot.

         Under the circumstances of this case, we reverse the motion judge's grant of summary judgment dismissing Richter's complaint. Based on our consideration of Supreme Court decisions in Victor v. State, 203 N.J. 383 (2008) and Royster v. N.J. State Police, 227 N.J. 482 (2017), we conclude that Richter need not demonstrate an adverse employment action to establish a prima facie case of a failure to accommodate claim under the LAD. Because there were genuine issues of material facts concerning whether Richter was provided an accommodation and whether the accommodation was adequate, which must be determined at a trial, we affirm the denial of Richter's cross-motion for summary judgment. As to the Board's cross-appeal, we conclude the Compensation Act does not bar Richter's bodily injury claim, but should she prevail at trial, the Board should receive a credit based on the amount it paid in her workers' compensation claim in accordance with N.J.S.A. 34:15-40 (section 40).


         Richter, a Type I Diabetic, is employed by the Board as a science teacher at Valley Middle School (VMS). VMS's academic calendar is divided into four marking periods. Each school day consists of eight class periods. Student lunch periods are during the fifth and sixth periods, which take place between 11:31 a.m. to 1:02 p.m. Teachers are assigned to supervise students during lunch, designated as cafeteria duty. Thus, some teachers are scheduled to have their lunch from 1:05 p.m. to 1:49 p.m., during seventh period. They are also assigned other non-teaching responsibilities, such as hall duty and health office duty.

         At the beginning of the 2012/2013 school year, Richter received her schedule, in which she was assigned to cafeteria duty on Wednesdays and Thursdays during fifth period, followed by teaching a class during sixth period and having her lunch during seventh period. Richter believed that waiting until seventh period, which began at 1:05 p.m., to eat a meal would have a negative effect on her blood sugar levels due to the medications she takes for her diabetes. Therefore, she asked Desiderio, the VMS principal, to have her schedule adjusted so that she could have lunch during the earlier fifth period. Desiderio responded that he would "look into it."

         After Desiderio failed to contact her, Richter sent a follow-up email on September 10, 2012, reiterating her need for a schedule change because of her medical condition. It was not until Richter sent another email that Desiderio responded by stating he would look into her request, but cautioned he could not "undo what he did." Thus, during the first marking period, Richter maintained her fifth-period cafeteria duty for two days a week. With her lunch delayed until seventh period, she ingested glucose tablets during sixth period to maintain her blood sugar levels.

         When plaintiff received her schedule for the second marking period, her lunch was scheduled for the fifth period every school day - which satisfied her request for an earlier lunch. This, however, changed for the third marking period, when she was scheduled for cafeteria duty and teaching science respectively during the fifth and sixth periods on Tuesdays with her lunch set for seventh period that day. Richter immediately approached Desiderio to remind him of her need to have lunch during fifth period, as she had throughout the second marking period. He verbally told her that he needed her for cafeteria duty because three teachers had to be assigned to the duty. He then suggested that if she was not feeling well, she should sit down to have a snack, and return to cafeteria duty when she was feeling better. The VMS vice principal told her she should skip cafeteria duty. Her union president instructed her that she would not be disciplined for skipping cafeteria duty.

         Under the impression that the school's official schedule would have to be revised in writing, Richter believed she was still obligated to remain on cafeteria duty during fifth period on Tuesdays. Desiderio never directed anyone in the school's office to change Richter's schedule, or otherwise noted anywhere that her scheduled lunch period on Tuesdays changed from Seventh period to fifth period to accommodate her medical condition. Consequently, Richter's blood sugar levels on Tuesdays often fell below the normal range as she approached the end of her sixth period class, requiring her to ingest three or more glucose tablets to try to keep her sugar elevated.

         Unfortunately, on Tuesday, March 5, 2013, towards the end of the sixth period, despite ingesting glucose tablets throughout the period, Richter suffered a hypoglycemic event in front of her students. She had a seizure and became unconscious causing her to strike her head and face on a lab table and the floor, and to bleed extensively. She was transported to the hospital for treatment. Even though she had minor hypoglycemic events at school in the past, she had never passed out at school.

         After the accident, Desiderio sent a number of text messages to Richter telling her that he previously told her not to attend cafeteria duty on Tuesdays. When she again asked Desiderio to make some documented change in her schedule, he placed an X on her schedule where it indicated she had cafeteria duty during fifth period on Tuesdays.

         From her fall, Richter suffered the following serious and permanent injuries: total loss of smell;[1] meaningful loss of taste; dental and facial trauma; tinnitus; insomnia; tingling in her fingers; extraction of her right front tooth; implantation of a dental bridge, and bone grafts; altered speech; pain in neck and radiation to posterior shoulder; paranesthesia and dysesthesias; post-concussion syndrome; vertigo; dizziness; severe emotional distress; and decreased life expectancy. She lost sick days and incurred significant dental costs not covered by her insurance.

         As a result of her work-related injuries, Richter filed a workers' compensation claim. The Board paid $18, 940.94 for her medical bills, $9, 792.40 for temporary disability benefits and $77, 200 for the permanent injuries she suffered.

         Richter sued the Board and Desiderio, individually and as principal of the school, alleging disability discrimination in violation of the LAD due to their alleged failure to accommodate her medical condition. The Board's initial motion for partial summary judgment to dismiss Richter's bodily injury claim as being barred by the Compensation Act was denied on July 10, 2015. In an oral decision, the motion judge, citing Laidlow v. Harton Mach. Co., Inc., 170 N.J. 602 (2002), held that under the Compensation Act's intentional wrong exception, Richter's LAD bodily injury claim was not barred.

         Thereafter, both defendants moved for summary judgment to dismiss Richter's complaint with prejudice, claiming Richter did not establish a prima facie LAD claim of disability discrimination for failure to accommodate because she suffered no adverse employment action. Richter cross-moved for summary judgment claiming she suffered an adverse employment action to establish a prima facie LAD claim. The Board then re-filed their summary judgment motion to dismiss the bodily injury claim, or in the alternative, be entitled to a 100% credit for all the money paid to Richter through her workers' compensation claim and barring her medical bills and lost wages from being presented at trial.

         On May 5, 2017, a different motion judge granted defendants' motion for summary judgment dismissing Richter's LAD complaint and ruled that the motion to dismiss the bodily injury claim was denied as moot. Concurrently, plaintiff's cross-motion was denied.

         In her written decision, the judge noted that "the New Jersey Supreme Court may later decide to strike 'adverse employment action' as a distinct element in a failure to accommodate claim, [but] it has not yet done so," and held that adverse employment action remains a required element to make a prima facie case of failure to accommodate under the LAD. Because Richter was not fired or reassigned to another position, the judge determined she could not establish a prima facie case of adverse employment action. In addition, the judge asserted that even though plaintiff's injuries were unfortunate, they were not due to defendants' action because it was Richter's personal decision to continue attending cafeteria duty on Tuesdays rather than eating.

         Richter moved for reconsideration. In the event the motion was granted, the Board cross-moved for reconsideration of the denial of dismissal of Richter's bodily injury claim with prejudice, or in the alternative, a 100 % credit for the workers' compensation payments. Ruling on the papers, the judge denied Richter's motion and issued a written decision finding there was no merit to her LAD claim because by failing to establish she suffered an adverse employment action, a prima facie failure to accommodate claim was not made. The judge reiterated her prior decision by declaring the Board's cross-motion as moot. This appeal and cross-appeal followed.


         We begin with Richter's contention that the motion judge erred in granting summary judgment dismissal of her LAD claim as a matter of law because she presented no evidence that she suffered an adverse employment action due to Desiderio's failure to reasonably accommodate her diabetes disability by giving her an earlier lunch period to avoid a decrease of her blood sugar levels. In support, she relies upon Victor; Royster; Model Jury Charges (Civil), 2.21, "The New Jersey Law Against Discrimination ("NJLAD") (N.J.S.A. 10:5-1[to -42])" (approved May 2003); Model Jury Charges (Civil), 2.26, "Failure to Accommodate Employee with Disability Under the [N]LAD]" (approved Feb. 2013); and N.J.A.C. 13:13-1.1 to -2.5(b).[2]

         This court reviews de novo a ruling on a motion for summary judgment, applying "the same standard governing the trial court[.]" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). We consider, as the motion judge did, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "If there is no genuine issue of material fact," then we must "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J.Super. 325, 333 (App. Div. 2013) (citation omitted). We accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)).


         With these summary judgment guidelines in mind, we conclude Richter's LAD claim should not have been dismissed on summary judgment because based on the circumstances before us, there was no obligation that she establish an adverse employment action to sustain her LAD claim of failure to accommodate her disability.

         We start our analysis with Victor, where Justice Helen E. Hoens, writing the decision for the unanimous Court, gave a thorough and thoughtful examination of the LAD by our courts and the related Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213, by federal courts, in considering "whether an adverse employment consequence is an essential element of a plaintiff's claim that his employer discriminated against him by failing to accommodate his disability." 203 N.J. at 388. The plaintiff, a New Jersey State Trooper, requested administrative duty because he claimed a back injury made it difficult for him to wear a protective vest that was required to be worn during full-duty activity. Id. at 389, 391-92. He did not produce any medical documentation to support his request, so his station commander - after consulting the New Jersey State Police (NJSP) Director of Medical Services - denied the request and ordered him to perform full-duty activity ...

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