KATHLEEN J. DELANOY, Plaintiff-Appellant,
TOWNSHIP OF OCEAN, ANDREW BRANNEN, STEVEN PETERS, NEIL INGENITO, WILLIAM LARKIN, CHRISTOPHER SICILIANO, W. MICHAEL EVANS, WILLIAM GAROFALO, and DONNA SCHEPIGA, Defendants-Respondents.
October 21, 2019
appeal from the Superior Court of New Jersey, Law Division,
Monmouth County, Docket No. L-4441-14.
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).
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
Judges Sabatino, Sumners and Geiger.
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).
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.
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
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.
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
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
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.
First Pregnancy and Her Employer's Policies
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.
2011, the Township implemented two new policies: the
Maternity SOP and the Light-Duty/Modified Duty Standard
Operating Procedure ("Light-Duty
SOP"). 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.
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.
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.
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
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.
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
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.
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
trial court granted in part and denied in part
defendants' dismissal motion. The motion
judge 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
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. As Chief Peters certified, plaintiff was
"temporarily reassigned to [a] maternity
assignment" on September 22, 2014.
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.
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.
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. 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.
Transition from Maternity Assignment to Maternity Leave
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
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.
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.
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.
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
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