Opinion
DOCKET NO. A-0146-14T4
07-13-2016
KASSANDRA ROSS, Plaintiff-Appellant v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DIVISION OF DEVELOPMENTAL DISABILITIES, Defendant-Respondent.
Steven Blader argued the cause for appellant (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Blader, of counsel and on the brief). Jennifer I. Fischer, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Cheryl A. Citera, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso, O'Connor and Suter. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-246-11. Steven Blader argued the cause for appellant (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Blader, of counsel and on the brief). Jennifer I. Fischer, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Cheryl A. Citera, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff Kassandra Ross appeals from an August 26, 2014 order of the Law Division granting defendant New Jersey Department of Human Services' motion for summary judgment and dismissing her amended complaint, which alleged discrimination under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Specifically, plaintiff alleged defendant failed to accommodate her disability in violation of N.J.S.A. 10:5-12, 10:5-4.1, and 10:5-20.1, and retaliated against her in violation of N.J.S.A. 10:5-12(d). The trial court concluded that, as a matter of law, plaintiff could not show defendant had failed to reasonably accommodate her and dismissed her complaint.
Because of the court's ruling, it did not address whether plaintiff had suffered any adverse employment consequences, see Victor v. State, 203 N.J. 383, 421 (2010), or her claim for retaliation.
After reviewing the record developed before the trial court in the light most favorable to plaintiff and giving her the benefit of all reasonable inferences as required by Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995), we conclude there are genuine issues of material fact about whether defendant reasonably accommodated plaintiff, warranting that we vacate the order for summary judgment and remand for further proceedings.
I
We recite the pertinent facts from the deposition testimony and other discovery presented to the trial court which are most favorable to plaintiff. Brill, supra, 142 N.J. at 540. In 2010, plaintiff was employed by defendant as a Supervising Program Development Specialist. Her job entailed drafting analyses and other documents on her computer, as well as communicating with others via email throughout the day. She completed her tasks using a desk-top computer in a cubicle located in a room shared with eleven other employees. Some of the documents and email communications she drafted contained confidential information about not only other employees, but also certain clients of the agency. Plaintiff was mindful these communications could not be shared with the other employees or the visitors of defendant who occasionally entered the room.
Plaintiff was born with a condition that permanently impaired her from using her right hand and arm. She thus depended upon her left hand and arm to perform the function of both extremities. It is not disputed that in April 2010, plaintiff was diagnosed with a condition that afflicted her left hand and arm that caused her to experience pain and stiffness when she used her left hand, including when she typed. In light of her predicament, plaintiff provided defendant with documentation from her physician indicating she had to refrain from typing. By June 2010, defendant installed voice activated software (software) on plaintiff's computer in her cubicle to enable her to draft all documents and email communications through dictation.
Before it was installed, plaintiff voiced concern to defendant that the software would not be practical because she would have to speak aloud throughout the day and others would hear all of her dictation, including "a lot" of sensitive or confidential information. The cubicles were not sound proof and she could hear what other employees said in their cubicles and assumed she was just as audible to them. In addition, having used this kind of software in her home, she was aware the software might pick up other voices in her work area and type onto the computer screen what others had said. Not seeing an alternative to fixing these two problems, plaintiff requested a private office in which to do her work.
Defendant was reluctant to give plaintiff a private office before exhausting "other possibilities." As early as April 2010, defendant claims plaintiff was offered clerical support to assist her with typing. Plaintiff contends that, although there was a discussion about her using support staff, defendant never actually offered her any clerical help. However, she admits she discouraged defendant from providing her with such help at that time because she was still hopeful she could use the software. When plaintiff ceased using the software months later because defendant did not address the problem of others overhearing her dictation, defendant did not offer clerical help, a fact Brenda Baxter, a manager in Human Resources, confirmed at her deposition.
In July 2010, defendant adjusted the software so that it was able to screen out all ambient noise in the room but for plaintiff's voice; however, the problem of others overhearing her dictation persisted. Around this time, plaintiff and Baxter walked through the office building to find a cubicle that would afford plaintiff more privacy, but to no avail.
Plaintiff pressed that she be given a private office as there was no other viable solution that would enable her do to her job. When defendant resisted, plaintiff suggested as an alternative that she be provided with a laptop with the subject software installed so that she could move into an empty conference room or other private space when she needed to dictate confidential information. Baxter told plaintiff she would explore plaintiff's suggestion but never got back to her.
At her deposition, plaintiff testified there were two empty offices in the building she could have used. Defendant contended that employees at plaintiff's salary range were not entitled to private offices, but plaintiff testified she was aware of employees either at or below her salary range that had private offices.
Defendant claims plaintiff was given the option of sharing an office with her supervisor. Plaintiff disputes this offer was made, but noted that particular option was impractical because the supervisor, whose office was very small, frequently had visitors or was on the telephone.
Plaintiff claims that, other than touring the building in search of a more isolated cubicle, defendant did nothing to address her concern about dictating certain information in the presence of others. In October 2010, she ceased using the software and, even though it caused her pain, typed all data into her computer with her left hand. In an email to Baxter, she commented that she found the "situation extremely frustrating when there is software installed on my computer that would effectively reduce the need for me to type by [sic] at least 90% if I was moved to a small, private office."
In February 2012, plaintiff had surgery on her left shoulder. It is unclear from the record whether the surgery was necessitated by plaintiff using her left hand to type on the computer. But there is evidence defendant knew plaintiff was typing with her left hand even though it caused her pain and that her doctor had ordered she refrain from doing so.
At her deposition, Baxter acknowledged there were two empty offices in the building during the period plaintiff was requesting an office in which to work, but Baxter claimed those offices were being held open for other employees. Baxter conceded she did not look into whether plaintiff could move into one of those offices until the person to whom the office was dedicated was ready to move in.
In July 2012, defendant gave plaintiff a laptop equipped with the subject software. Plaintiff used the laptop when she could find a private area in the building in which to dictate. Baxter testified that, in 2010, she had located a laptop calibrated with the subject software for plaintiff to use in an empty room when needed to dictate in private, but admitted she was unable to say whether plaintiff was ever made aware of the availability of this laptop. Finally, Baxter conceded plaintiff continued to request an accommodation from 2010 to the time of Baxter's deposition, which was conducted in November 2012.
During oral argument, plaintiff's counsel advised his client has since resigned from her position.
In its brief before us, defendant makes only brief mention of plaintiff's concern that she not be heard by others when she dictated sensitive or confidential information, claiming plaintiff's "concerns about confidentiality were not shared by Defendants." Although defendant is suggesting it was acceptable for others to hear what plaintiff dictated - which, if true, would indicate plaintiff was fully accommodated once the software was installed on her desk-top computer - there is no indication defendant ever excused plaintiff from being discreet when she handled or dictated confidential information. Further, in her deposition, Baxter conceded that it was "reasonable to ensure that [plaintiff was] in a place where she feels that she has the privacy to complete her duties."
We assume defendant referred to itself in the plural because when the complaint was filed, defendant had also named Kenneth Ritchey, an employee of defendant. Plaintiff later dismissed Ritchey from the amended complaint.
II
Rule 4:46-2(c) directs that summary judgment be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Essentially, the court must determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). We review a trial court's decision on summary judgment "de novo, employing the same standard used by the trial court." Tarabokia v. Structure Tone, 429 N.J. Super. 103, 106 (App. Div. 2012) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 213 N.J. 534 (2013). We give "no deference to the trial judge's conclusions on issues of law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). As previously stated, we must also "view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (citing Brill, supra, 142 N.J. at 523).
The LAD prohibits discrimination against an individual who is physically disabled, see N.J.S.A. 10:5-3, and specifically prohibits "any unlawful employment practice against such person, unless the nature and extent of the disability reasonably precludes the performance of the particular employment," N.J.S.A. 10:5-4.1. N.J.A.C. 13:13-2.5 mandates an employer ensure "that a disabled person is disadvantaged in the workplace as little as possible. This responsibility on the part of the employer is known as the responsibility of 'reasonable accommodation.'" Jones v. Aluminum Shapes, 339 N.J. Super. 412, 421 (App. Div. 2001). To determine the appropriate accommodation,
the employer must initiate an informal interactive process with the employee . . . . This process must identify the potential reasonable accommodations that could be adopted to overcome the employee's precise limitations resulting from the disability . . . . Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation.
[Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 400-401 (App. Div. 2002) (citations omitted).]
However, "[a]n employer's duty to accommodate extends only so far as necessary to allow 'a disabled employee to perform the essential functions of his job. It does not require acquiescence to the employee's every demand.'" Id. at 397 (quoting Vande Zande v. State of Wis. Dep't of Admin., 851 F. Supp. 353, 362 (W.D. Wis. 1994), aff'd, 44 F.3d 538 (7th Cir. 1995)). Further, not only the employer but also the employee has "a duty to assist in the search for appropriate reasonable accommodation and to act in good faith." Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (quoting Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997)).
It is settled that New Jersey courts look to federal anti-discrimination cases for guidance. Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 97 (1990). --------
To prevail on a claim for failure to accommodate a disability under the LAD, a plaintiff must prove the following four elements: "(1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith." Tynan, supra, 351 N.J. Super. at 400-01.
Plaintiff raised material questions of fact whether defendant reasonably accommodated her. Addressing the four-part test above, defendant does not dispute plaintiff had a disability, that she had made defendant aware of such disability, and that she had requested an accommodation from defendant. The parties do not agree on the remaining two elements.
Plaintiff contends defendant failed to make a good faith effort to accommodate her and could have reasonably accommodated her but for its lack of good faith. Defendant contends it accommodated her because it provided her with the software and looked for, but could not locate, another cubicle in the building that would have provided her with more privacy. In our view, there is a material question of fact as to whether defendant made a good faith effort to accommodate plaintiff's disability.
In order for her to complete her tasks, plaintiff had to draft documents or send emails concerning confidential matters during the course of the day. Mindful others around her could hear what she said and that she needed to be discreet, plaintiff was averse to dictating material in her cubicle. When in 2010 defendant did not provide her with a private work area in which she could use the software installed on her desktop to dictate, or give her a laptop equipped with the software and access to a room in which she could dictate in private when necessary, plaintiff resorted to using her left hand to input data into her computer.
Defendant was aware plaintiff was using her left hand and that she was alleging such use caused her pain. There is evidence that in 2010 defendant could have accommodated plaintiff by letting her use a laptop equipped with the requisite software and one of the two empty offices in which to dictate. Plaintiff also argues she could have moved into one of the two offices temporarily until the employee to whom the office was dedicated moved in, or could have been assigned an office permanently altogether. Yet, on the record before us, it appears defendant failed to seriously consider any of these options and seemingly abandoned the interactive process.
It may be that defendant had a good faith reason why it did not provide any these accommodations, but on this record and looking at the facts in the light most favorable to plaintiff, see R. 4:46-2(c), we discern genuine issues of material fact whether defendant could have reasonably accommodated plaintiff but failed to make a good effort to do so.
Accordingly, we vacate the August 26, 2014 order granting summary judgment. Because the court did not decide whether plaintiff had suffered any adverse employment consequences, see Victor, supra, 203 N.J. at 421, as a result of the alleged failure to accommodate, we remand this matter so the court may consider that issue.
Finally, we emphasize that we express no opinion on whether plaintiff in fact required a private area in order to execute her essential job functions. While plaintiff indicates her job duties entailed that she ensure that others not hear her dictation on confidential or sensitive matters, the validity of that particular claim has not yet been decided. Thus, defendant is not foreclosed from challenging such claim if, for example, defendant contends plaintiff was not prohibited from dictating all of her communications, even if she could be heard by others.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION