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Delanoy v. Township of Ocean

Superior Court of New Jersey, Appellate Division

January 3, 2020

KATHLEEN J. DELANOY, Plaintiff-Appellant,

          Argued October 21, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4441-14.

          Donald Francis Burke argued the cause for appellant (Law Office of Donald F. Burke, attorneys; Donald Francis Burke and Donald Francis Burke, Jr., on the briefs).

          Lori A. Dvorak argued the cause for respondents (Law Offices of Dvorak & Associates, LLC, attorneys; Lori A. Dvorak, of counsel; Marc D. Mory and Martin J. Arbus, on the briefs).

          Thaddeus P. Mikulski, Jr., argued the cause for amicus curiae National Employment Lawyers Association of New Jersey.

          Michelle S. Silverman argued the cause for amicus curiae The Academy of New Jersey Management Attorneys, Inc. (Morgan, Lewis & Bockius LLP, attorneys; Richard G. Rosenblatt and Michelle S. Silverman, on the brief).

          Benjamin Folkman argued the cause for amicus curiae The New Jersey Association for Justice (Folkman Law Offices, PC, attorneys; Eve R. Keller, Benjamin Folkman, Sarah Slachetka, Paul C. Jensen, Jr., and Lauren M. Law, on the brief).

          Farng-Yi D. Foo, Deputy Attorney General, argued the cause for amicus curiae The Office of the Attorney General (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Farng-Yi D. Foo, on the brief).

          Before Judges Sabatino, Sumners and Geiger.


          SABATINO, P.J.A.D.

         This appeal stems from a pregnancy discrimination suit brought by a female police officer against her employer, Ocean Township, and various Ocean Township officials. Plaintiff contends defendants violated the New Jersey Pregnant Workers Fairness Act ("PWFA"), a statute that has yet to be construed in a published opinion. The PWFA amended the New Jersey Law Against Discrimination ("LAD"), effective January 17, 2014, to expressly prohibit pregnancy-based discrimination in employment and in other contexts. Among other things, the statute obligates employers, subject to an undue hardship exception, to provide reasonable accommodations in the workplace to pregnant women upon their request, and to not penalize such women because of their pregnant status. N.J.S.A. 10:5-12(s).

         When plaintiff found out she was pregnant with her second child, she informed her supervisors her doctor recommended she be taken off patrol. She asked to be transferred to a "light-duty" or less strenuous position within the Police Department. Plaintiff was consequently assigned to non-patrol duty, pursuant to the Department's "Maternity Assignment Standard Operating Procedure" ("Maternity SOP"). That policy allows pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time (e.g., vacation, personal, and holiday time) before going on that different assignment. The Maternity SOP also differs from the Department's policy providing light-duty assignments for nonpregnant injured officers because only the latter policy gives the Police Chief the authority to waive the loss-of-leave-time condition.

         Plaintiff contends that the Department's Maternity SOP discriminates against pregnant employees because it is less favorable than the light-duty assignment policy for nonpregnant officers. She further argues that requiring her to deplete her accumulated leave time as a condition of her maternity assignment violates the PWFA, because employers are obligated under the statute to "reasonably" accommodate pregnant employees. She further argues this condition improperly penalized her in violation of the statute.

         The trial court granted summary judgment in favor of defendants, finding that defendants' maternity assignment policy did not violate what it perceived as the PWFA's "equal treatment" mandate. The court did not reach the issues of reasonable accommodation, undue hardship, or penalty. The court also denied plaintiff's cross-motion for partial summary judgment on her facial challenge.

         For the reasons that follow, we vacate the entry of summary judgment in favor of defendants. We hold the Department's maternity assignment policy, as written, unlawfully discriminates against pregnant employees as compared to nonpregnant employees who can seek and potentially obtain a waiver from the Police Chief. Such nonequal treatment violates the PWFA. Consequently, we uphold plaintiff's facial challenge to those uneven policies and direct the trial court to grant her discrete requests for declaratory and injunctive relief, leaving other remedial issues to the trial court.

         In addition, we vacate summary judgment in defendants' favor with respect to the accommodation issues. We do so because there are genuine issues of material fact for a jury to resolve concerning the reasonableness of the SOP's loss-of-leave-time condition and whether that condition is so harsh as to comprise an impermissible penalty. The jury further must evaluate the employer's defense of undue hardship.


         Plaintiff Kathleen J. Delanoy began working as a law enforcement officer in the Ocean Township Police Department in about January 2003. By the time of the motion proceedings in this case, Delanoy was one of three female police officers in a staff of over fifty patrol officers.

         Plaintiff's First Pregnancy and Her Employer's Policies

         In or around March 2011, Delanoy discovered she was pregnant with her first child, and was due in November 2011. At the time, Ocean Township did not have a formal maternity leave or light-duty policy for police officers.

         In July 2011, the Township implemented two new policies: the Maternity SOP and the Light-Duty/Modified Duty Standard Operating Procedure ("Light-Duty SOP").[1] As we will discuss in more detail, both policies require a police officer to deplete up to all of his or her accumulated paid leave time as a condition of receiving light-duty or a maternity assignment. Notably, however, the Light-Duty SOP, but not the Maternity SOP, grants the Chief of Police discretion to waive the requirement that an officer use up his or her accumulated time as a condition of the changed assignment.

         Additionally, the two policies differ as to how the return-to-duty date is set. Under the Light-Duty SOP, the return-to-duty date is set by the employee's treating doctor, whereas the Maternity SOP return-to-duty date is set according to a formula, but no more than forty-five calendar days past the infant's expected due date.

         On July 11, 2011, plaintiff informed Antonio Amodio, who was then the Police Chief, that her doctor instructed her she needed to work a maternity assignment for the remainder of her pregnancy. Seven days later, on July 18, 2011, plaintiff began her maternity assignment under the Maternity SOP. Plaintiff worked in the maternity assignment until her first child was born in November 2011.

         The First Lawsuit

         In January 2013, plaintiff filed her first lawsuit (Docket Number MON-L-322-13) against the Township and other defendants in the Law Division, alleging the Township and former Chief Amodio discriminated against her on the basis of her first pregnancy by implementing the two non-identical SOPs to her detriment. Defendants removed that case to federal court.

         Plaintiff's Second Pregnancy

         While her federal litigation was pending, on or around September 19, 2014, plaintiff advised her supervisors of her second pregnancy. By that point, the Light-Duty and Maternity SOPs adopted in 2011 were fully in effect.

         The Present Lawsuit

         In November 2014, plaintiff filed the present pregnancy discrimination lawsuit in the Law Division against the Township of Ocean; the current Chief of Police, Steven Peters; the five members of the Ocean Township Council; and Township Manager Andrew Brannen. Among other things, plaintiff sought a declaratory judgment, finding that the Township's policies violated the PWFA and its provisions within the LAD, N.J.S.A. 10:5-12. Plaintiff also requested an injunction prohibiting defendants "from effectuating policies which are discriminatory to pregnant police officers." Plaintiff further sought damages and counsel fees.

         When plaintiff learned that she would be forced by the Township to take an early maternity leave, she filed an order to show cause for declaratory and injunctive relief. The trial court denied her request. Plaintiff unsuccessfully sought interlocutory review from this court and the Supreme Court. Meanwhile, plaintiff accepted an offer of judgment to resolve the federal litigation.

         Plaintiff then moved to enter default against defendants in this lawsuit. Defendants cross-moved to dismiss plaintiff's complaint pursuant to Rule 4:6-2(e). Defendants argued that plaintiff's claims were barred on various procedural grounds, including the statute of limitations, the entire controversy doctrine, collateral estoppel, and res judicata.

         The trial court granted in part and denied in part defendants' dismissal motion. The motion judge[2] found that, to the extent plaintiff's second lawsuit seeks to recover damages from the Township for discrimination related to her first pregnancy, such claims were barred by the entire controversy doctrine. Plaintiff's other claims were allowed to proceed. The judge denied plaintiff's motion to enter default against defendants.

         Plaintiff's Maternity Assignment

         Plaintiff's projected due date in her second pregnancy was March 17, 2015, which ultimately proved to be the child's actual date of birth. Plaintiff submitted a doctor's note to her employer on September 19, 2014, advising that she was pregnant and requesting that she be placed on light-duty from September 22, 2014, until the end of her pregnancy.[3] As Chief Peters certified, plaintiff was "temporarily reassigned to [a] maternity assignment" on September 22, 2014.

         According to the Township, the two SOPs created new positions for officers requesting light-duty or maternity assignments. As then-Township manager Andrew Brannen explained in his deposition, the SOPs "guarantee[ed] a work assignment for anybody on maternity leave or anybody on light duty." By contrast, before the SOPs were promulgated in 2011, whether someone was given light-duty depended on whether such an assignment existed and was available.

         Plaintiff worked in the maternity assignment for several months. In accordance with the policy, she was assigned an administrative job in the Department's records department, as well as handling what are known as walk-in reports. As described in plaintiff's deposition, she was assigned the same type of work (e.g., record keeping and handling walk-in reports) that she had been assigned during her first pregnancy. Plaintiff was considered a "primary walk-in officer," which meant that when people would come into the Department to report a crime, accident, or similar incident she would be responsible for meeting with that person and then preparing a report.

         Plaintiff testified she had problems as the primary walk-in officer because she could not wear her gun when interacting with the people who would walk into the police station.[4] She recounted how the Department once had a mentally unstable person come in as a walk-in, pull the fire alarm, and run out. Two uniformed officers carrying their weapons then chased that person into the parking lot and wrestled him to the ground, but ultimately one of the officers involved in the scuffle was injured and had to retire. Plaintiff stated this previous occurrence made her "absolutely terrified" because she felt vulnerable and unable to defend herself and her unborn child if a walk-in civilian became violent.

         Plaintiff's Transition from Maternity Assignment to Maternity Leave

         Plaintiff contends she worked the maternity assignment from September 22, 2014, until February 25, 2015, when the Department forced her to go on maternity leave and begin using up her accumulated leave time. The Township disputes that end date, asserting that plaintiff worked the maternity assignment through March 2, 2015, and began her maternity leave the next day on March 3, 2015. Regardless of this discrepancy in the exact end dates, the parties do not dispute that plaintiff was forced to use up several of her accumulated leave time days as a condition of her receiving the maternity assignment.

         The Loss-of-Leave-Time Condition

         It is undisputed that plaintiff went on maternity leave before her second child's expected due date of March 17, 2015. The Maternity SOP specifies that accumulated time needs to be scheduled and used with reference to the officer's "return to duty date"-a date which must be no more than forty-five days past the child's expected due date-and calculated backwards until all of the officer's accumulated time is depleted.

         Although the parties do not agree on the precise timeline, in order to obtain her modified assignment plaintiff had to deplete roughly two weeks of accumulated leave time. This requirement is at the heart of the case.

         Defendants assert the Maternity SOP is fair because when the Township created the benefit of light/maternity duty positions for officers, it expected the officers to give something up in return (e.g., accumulated time). According to the defendants, the "give and take" of the Maternity Duty and Light-Duty SOP was intended to save money for taxpayers. Defendants allege the SOPs created a temporary clerical position for officers if they needed light/maternity duty. Instead of paying the officers the lower salary of a file clerk, the Township pays them their normal salary during the temporary assignment. Defendants contend it was only fair that the officers gave up accumulated time before getting the benefit of light-duty or maternity duty.

         Plaintiff contests the legality of being forced to use up her accumulated leave time. She contends she was medically able and cleared by her physician to continue working her maternity assignment up until her due date. She asserts the SOP's loss-of-leave-time requirement is unlawful under the PWFA.

         Motion Practice

         After discovery was conducted, the parties filed cross-motions for summary judgment. Following oral argument, the trial court denied plaintiff's motion and entered summary judgment in ...

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