JERRY RIVERA v. STATE OF NEW JERSEY (L-0946-16, SOMERSET COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1912-20
JERRY RIVERA,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
DEPARTMENT OF HUMAN
SERVICES, ANTONIO BRINDISI,
WILLIAM DENKOVIC, MARY JO
KURTIAK, CAROLYN TREFFINGER,
and VICTOR PATEL,
Defendants-Respondents.
Argued May 12, 2022 – Decided July 19, 2022
Before Judges Haas, Mitterhoff, and Alvarez.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0946-16.
Robert K. Chewning argued the cause for appellant
(McLaughlin & Nardi, LLC, attorneys; Maurice W.
McLaughlin and Robert K. Chewning, on the briefs).
Agnes I. Rymer, Deputy Attorney General, argued the
cause for respondents (Matthew J. Platkin, Acting
Attorney General, attorney; Sookie Bae-Park, Assistant
Attorney General, of counsel; Bryan Edward Lucas,
Deputy Attorney General, and Agnes I. Rymer, on the
brief).
PER CURIAM
Plaintiff Jerry Rivera appeals from the February 23, 2021 grant of
summary judgment to the State of New Jersey, Department of Human Services
(DHS), and various named individuals. Rivera's complaint alleged defendants
violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. For
the reasons stated by the trial judge in his exhaustive written opinion, we affirm.
We add only the following brief comments.
Rivera was employed as a Housekeeping Supervisor II. The Civil Service
Commission's job specification sheet described that position's duties as follows:
"Under direction in a medium size building complex in a state or local
government department, agency, or college, organizes and supervises a
complete housekeeping program; assigns personnel; recommends procedures
and methods of all housekeeping areas; does other related duties as required."
DHS policy subjects chronic or excessive absenteeism to the following
disciplinary measures, which we summarize:
A-1912-20
2
First infraction: Minimum of counseling; maximum of
written warning.
Second infraction: Minimum of written warning;
maximum of official reprimand.
Third infraction: Minimum of official reprimand;
maximum of removal.
Fourth infraction: Mandatory removal.
In his decision, the judge described Rivera's three-year history of chronic
absenteeism. Rivera was diagnosed with major depressive disorder and a
generalized anxiety disorder in May 2015, and presented his supervisor with two
notes scrawled on prescription pad pages, which he claimed corroborated his
disability. One note said Rivera should be granted three days of medical leave,
and the other said he should be transferred to a workplace where he felt more
comfortable. The prescription pad pages were from a behavioral health facility,
and it is undisputed that Rivera obtained treatment there. Unfortunately, Rivera
did not request an accommodation based on the notes or present more
comprehensive documents, and his supervisor hesitated to look into the notes
further.
Rivera made Division of Equal Employment Opportunity/Affirmative
Action (EEO/AA) complaints regarding his treatment and the treatment of other
Hispanic employees at the Green Brook Regional Center where he was regularly
A-1912-20
3
assigned. While the EEO/AA complaints were pending from June to September
2015, Rivera was transferred to Hunterdon Regional Developmental Center, his
preferred worksite. Despite that transfer, he continued to log significant
absences. When the EEO/AA investigation uncovered no impropriety, Rivera
returned to Green Brook Regional Center.
Rivera never requested unpaid medical leave or a leave of absence. He
sought only a permanent reassignment to Hunterdon. Unfortunately, Hunterdon
could not accommodate his job description as there was no opening or need for
a Supervisor II.
Defendants had previously been granted summary judgment, which we
reversed on appeal to allow further discovery. The present summary judgment
application came after discovery ended.
The judge thoroughly discussed each cause of action, finding Rivera could
not dispute DHS's list of absences and never requested an accommodation.
Nothing in the record supported Rivera's allegation that the denial of a
permanent transfer to Hunterdon was intended to discriminate or retaliate. The
judge observed that Rivera had "no facts to discredit the nondiscriminatory
reason for his termination: . . . chronic and excessive absenteeism." Rivera's
self-proclaimed satisfactory job performance was not enough. An otherwise
A-1912-20
4
satisfactory employee-at-will may be unable to retain his job if he cannot come
to work on a regular basis. Citing Svarnas v. AT&T Communications, 326 N.J.
Super. 59, 78 (App. Div. 1999), the judge concluded that no reasonable jury
could find Rivera satisfactorily fulfilled his job functions in light of his chronic
absenteeism. The non-pretextual decision to terminate Rivera was solidly
grounded in his absences.
Furthermore, the judge observed, Rivera's failure to request an
accommodation precluded success on his contention that DHS discriminated
against him because of his mental health issues. He never fully disclosed the
nature and status of his condition to his employer—the notes were not enough.
The judge therefore held Rivera's CEPA claims could not survive either.
Other than temporal proximity between the EEO/AA action and termination,
Rivera could offer no proof he was punished for whistleblowing. While he
certainly established that he had conflicts with coworkers, even viewing the
facts in the light most favorable to Rivera, no reasonable jury could find a hostile
work environment or that the complained-of incidents were "sufficiently severe
or pervasive." In sum, the judge found no basis for relief on Rivera's causes of
action, let alone punitive damages.
Now on appeal, Rivera alleges the following points:
A-1912-20
5
POINT I
STANDARD OF REVIEW.
POINT II
SUMMARY JUDGMENT SHOULD HAVE BEEN
DENIED BECAUSE THERE ARE ISSUES OF
MATERIAL FACT IN DISPUTE.
POINT III
PLAINTIFF HAS MERITORIOUS CLAIMS
AGAINST DEFENDANTS UNDER THE LAD.
A. Plaintiff Performed The Essential Functions
Of His Position.
B. Defendants' Alleged "Legitimate" Reason for
Plaintiff's Wrongful Termination is Pretext.
POINT IV
[PLAINTIFF] HAS A MERITORIOUS LAD CLAIM
FOR DEFENDANTS' FAILURE TO
ACCOMMODATE PLAINTIFF'S DISABILITIES.
A. Plaintiff Requested An Accommodation For
His Disabilities.
B. Defendants Failed To Reasonably
Accommodate Plaintiff.
C. Defendants Had The Ability To Accommodate
Plaintiff's Disabilities.
D. Plaintiff Established His Disabilities.
A-1912-20
6
POINT V
PLAINTIFF ENGAGED IN PROTECTED
WHISTLEBLOWER ACTIVITY AND THEREFORE
HAS MERITORIOUS CLAIMS AGAINST
DEFENDANTS UNDER CEPA.
A. Plaintiff Performed His Essential Functions
But For Defendants' Actions.
B. There Is Sufficient Evidence For A Jury To
Find A [Causal] Connection to Defendants'
Adverse Employment Actions.
POINT VI
PLAINTIFF HAS MERITORIOUS CLAIMS OF
HARASSMENT AND HOSTILE WORK
ENVIRONMENT UNDER CEPA AND LAD.
POINT VII
PLAINTIFF HAS MERITORIOUS CLAIMS
AGAINST DEFENDANTS UNDER [RESPONDEAT]
SUPERIOR AND MONELL[1] LIABILITY.
POINT VIII
PLAINTIFF SHOULD BE AWARDED PUNITIVE
DAMAGES.
Rivera's claims of error on appeal lack sufficient merit to warrant much
discussion in a written decision. See R. 2:11-3(e)(1)(E). We affirm summary
1
Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978).
A-1912-20
7
judgment for the reasons detailed in the judge's decision. We add the following
comments.
Summary judgment is appropriate when "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." Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995) (quoting R. 4:46-
2(c)). Disputed facts "of an insubstantial nature" cannot defeat a summary
judgment motion. Ibid. (quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67,
75 (1954)). A genuine issue of material fact exists when "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 540. Appellate
courts review summary judgment rulings de novo. Conley v. Guerrero, 228 N.J.
339, 346 (2017).
"All employment discrimination claims require the plaintiff to bear the
burden of proving the elements of a prima facie case." Victor v. State, 203 N.J.
383, 408 (2010). "There is no single prima facie case that applies to all
employment discrimination claims." Ibid.A-1912-20
8
If the claim is based upon discriminatory discharge, the
. . . plaintiff must demonstrate: (1) that plaintiff is in a
protected class; (2) that plaintiff was otherwise
qualified and performing the essential functions of the
job; (3) that plaintiff was terminated; and (4) that the
employer thereafter sought similarly qualified
individuals for that job.
[Id. at 409.]
This initial evidentiary burden is "rather modest[.]" Id. at 408 (quoting Zive v.
Stanley Roberts, Inc., 182 N.J. 436, 447 (2005)).
The burden next shifts to the defendant to articulate some legitimate and
non-discriminatory reason for the challenged action. See Donofry v. Autotote
Sys., Inc., 350 N.J. Super. 276, 292 (App. Div. 2001). If the defendant can
produce evidence of a non-discriminatory motive, the burden shifts back to the
plaintiff to produce evidence that the defendant's stated reason is pretextual. See
id. at 90-92. A "plaintiff can meet that burden by means of circumstantial as
well as direct evidence, or a combination of the two." Id. at 292.
"The authorities recognize that reasonably regular, reliable, and
predictable attendance is a necessary element of most jobs. An employee who
does not come to work cannot perform any of her job functions, essential or
otherwise." Svarnas, 326 N.J. Super. at 78. "Hence, even an employee whose
job performance is more than adequate when she is working will not be
A-1912-20
9
considered qualified for the job unless the employee is also willing and able to
come to work on a regular basis." Ibid. "The necessary level of attendance is a
question of degree depending on the circumstances of each position." Ibid."[T]here is no way to reasonably accommodate the unpredictable aspect of an
employee's sporadic and unscheduled absences. This is true even if the
employee is using time allotted to her, and even if the absences are disability
related." Ibid. "[A]n indefinite unpaid leave is not a reasonable
accommodation, especially where the employee fails to present evidence of the
expected duration of her impairment." Id. at 79.
On appeal, Rivera argues that defendants cannot prove that regular
attendance is an essential function of the job, define regular attendance, or
explain why such attendance is necessary. But as the judge found, given the
nature of Rivera's work, regular attendance was essential.
After extensive discovery, Rivera could not identify evidence supporting
any of his allegations of discrimination. The trial judge had no choice but to
grant summary judgment. No material conflict of fact existed; defendants were
entitled to judgment as a matter of law.
Rivera's LAD cause of action had no support in the record. An employee's
request for accommodation obligates the employee to engage in the interactive
A-1912-20
10
process. If an employee does not request accommodation, an employer cannot
be expected to guess. In this case, the employer would have had to guess that
Rivera's anxiety and depression constituted a disability, despite his failure to
document the issues. See Wojtkowiak v. N.J. Motor Vehicle Comm'n, 439 N.J.
Super. 1, 15 (App. Div. 2015). The prescription pad pages Rivera provided were
insufficient, thus his LAD claim fails.
The LAD burden shifting framework also applies in CEPA cases.
Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App. Div. 2008). Temporal
proximity between the alleged whistleblowing activities and the employer's
adverse action, standing alone, does not establish causation. Hancock v.
Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002).
The lack of a causal connection between Rivera's complaints and an
adverse employment action defeat Rivera's claim. Defendants offered a
reasonable explanation for every challenged action. For example, defendants
responded positively to Rivera's complaints regarding the purportedly
discriminatory treatment of Hispanic employees. Regardless, "there is an
implicit requirement that an employee be performing the essential functions of
his job in order to advance a CEPA claim." Rivera v. N.J. Dep't of Hum. Servs.,
No. A-0086-17 (App. Div. Mar. 28, 2019) (slip op. at 42-43).
A-1912-20
11
No reasonable juror could find Rivera could perform the essential
functions of his job without regular attendance. Defendants proffered a non-
retaliatory reason for each action of which he complained. No reasonable jury
could find any harassment or discriminatory conduct under these circumstances.
Rivera's inability to perform his essential duties defeats his Monell2
claims. Because Rivera's factual allegations do not support his causes of action,
no punitive damage claim should reach the jury.
Affirmed.
2
Monell created a cause of action against local governments under 42 U.S.C. §
1983. See 436 U.S. at 662-63.
A-1912-20
12