FRANCES GRAU VS. AHS HOSPITAL CORP.L-695-14, MORRIS COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3959-15T1
FRANCES GRAU,
Plaintiff-Appellant,
v.
AHS HOSPITAL CORP., ATLANTIC
HEALTH SYSTEMS, INC., and
MORRISTOWN MEDICAL CENTER,
Defendant-Respondent.
__________________________________
Submitted May 15, 2017 – Decided June 2, 2017
Before Judges Haas and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-695-
14.
Colin M. Page & Associates, attorneys for
appellant (Mr. Page and Evan Silagi, on the
briefs).
Carmagnola & Ritardi, LLC, attorneys for
respondent (Steven F. Ritardi, of counsel and
on the brief; Sean P. Joyce and Philip A.
Portantino, on the brief).
PER CURIAM
Plaintiff Frances Grau appeals from the Law Division's April
7, 2016 order granting summary judgment and dismissing her claim
that her employer, defendant Atlantic Health Systems, Inc.
("AHS"), failed to accommodate her disability in violation of New
Jersey's Law Against Discrimination, ("LAD"), N.J.S.A. 10:5-1 to
-49. We affirm.
The following facts are derived from the evidence submitted
by the parties in support of, and in opposition to, the summary
judgment motion, viewed in a light most favorable to plaintiff,
the non-moving party. Polzo v. Cnty. of Essex, 209 N.J. 51, 56
n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995)).
Plaintiff worked for twenty-six years as a nursing assistant
in a cardiac unit at Morristown Medical Center, which is part of
the AHS system of hospitals. As a nursing assistant, plaintiff's
essential job functions involved the direct care of patients.
More specifically, plaintiff was responsible for assisting
patients with activities of daily living, bathing and helping
patients with their hygiene maintenance, making beds, turning and
positioning patients as needed, maintaining and stocking linen
carts, and moving, maintaining, and returning all equipment used
in patient care. In order to perform these functions, plaintiff
was required to be able to occasionally lift up to 100 pounds of
weight, while more frequently lifting ten to fifty pounds. She
also needed to be able to push stretchers, chairs, and empty beds
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and, as part of a team, a patient while in a bed, for distances
of hundreds of feet.
On January 17, 2013, plaintiff fell at work. A month later,
she was granted leave due to complaints of shoulder pain. On May
3, 2013, plaintiff underwent shoulder surgery. AHS granted
plaintiff's request for additional leave through June 24, 2013.
Plaintiff's manager testified at a deposition that AHS could
not redistribute plaintiff's duties to other employees due to the
existing staff's already heavy workload. While plaintiff was on
leave, AHS backfilled her position by retaining per diem staff and
having other staff members work overtime. However, if plaintiff
could no longer perform her nursing assistant responsibilities,
and still worked on the unit, the manager testified that AHS would
have to hire a new employee for plaintiff's position, above and
beyond the cardiac unit's budget, to cover the work plaintiff
could not perform.
At the end of her leave period, plaintiff's treating
physician told AHS that plaintiff could only return to work if she
was placed on light duty and prohibited from lifting more than
five pounds of weight. In addition, plaintiff was not able to
engage in any pushing, pulling, or lifting overhead activities.
In accordance with its Transitional Duty Program and Return
to Work ("RTW program") policy, AHS temporarily assigned plaintiff
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to sedentary, light-duty desk work in the Infection Control Unit
beginning on June 24, 2013. The policy provided that this light
duty was only available for ninety days.
Because plaintiff's physician told her that she could no
longer perform the duties of a nursing assistant, AHS worked with
plaintiff to try to find her a new position that did not require
lifting. AHS provided plaintiff with training for Unit
Representative and Registrar clerical positions, and extended the
period for which she was eligible for the RTW program to enable
her to complete this training. However, plaintiff testified that
she was not able to "keep up with the pace" of the courses due,
in part, to her lack of familiarity with computers. AHS also
assisted plaintiff in the preparation of a new resume, provided
her with a list of positions that might be available, and advised
her on how to apply to the proper offices.
In October 2013, plaintiff participated in a Kinematic
Functional Capacity Evaluation and Work Ability Assessment to
determine her ability to perform the essential duties of a nursing
assistant. The assessment concluded that because of her shoulder
injury, plaintiff could not perform these duties due to the severe
limitations on her capacity to lift, pull, and push the amount of
weight needed to do this job.
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Pursuant to its RTW program policy, AHS discontinued
plaintiff's light duty assignment on October 24, 2013, and placed
her in the Health Insurance Cost Center, which enabled her to
maintain her health insurance. AHS's Employee Relations Manager
("ER manager") met with plaintiff to attempt to find her another
job within the hospital system. However, plaintiff's physical
limitations, coupled with her lack of technology or computer
knowledge or experience, severely limited her options at AHS.
Each week, the ER manager reviewed a list of open positions
to determine if plaintiff was qualified for them. However, due
to the many restrictions on plaintiff's ability to work, the ER
manager was not able to find an appropriate match. A manager in
another AHS department also helped plaintiff during this period,
but plaintiff was unable to locate a position for which she was
qualified.
Plaintiff testified that she heard that there were
"sitter/spotter" positions available at the hospital. According
to plaintiff, an employee acting as a "sitter/spotter" would
monitor patients who were at high risk of injuring themselves
because of confusion or disorientation. However, there were no
positions like this within AHS. Instead, the monitoring duties
plaintiff was referring to were encompassed within the normal
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responsibilities of a nursing assistant, which plaintiff could no
longer perform due to her shoulder injury.
Plaintiff testified that although she would have liked to
continue working, she chose to retire from her position and, with
the assistance of her brother, she completed the necessary forms
to do so. In February 2014, her retirement was approved. Shortly
thereafter, plaintiff successfully applied for Social Security
disability ("SSD") benefits. In her application for SSD, plaintiff
asserted that she could not lift over five pounds and that her
condition affected, among other things, her ability to walk, lift,
bend, and reach.
On March 17, 2014, plaintiff filed a one-count complaint
against AHS, claiming that her former employer failed to
accommodate her disability in violation of the LAD. AHS filed an
answer denying plaintiff's allegation and, at the conclusion of
discovery, it filed a motion for summary judgment.
Following oral argument, Judge Stuart Minkowitz rendered a
thorough written opinion granting AHS's motion and dismissing
plaintiff's complaint. The judge found that plaintiff's shoulder
injury qualified as a disability under the LAD. However, the
judge further found that plaintiff failed to "show that she can
perform the essential functions of her job either with or without
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an accommodation." Therefore, the judge concluded that AHS did
not violate the LAD.
In explaining his decision, Judge Minkowitz stated:
A [n]ursing [a]ssistant must physically assist
patients, use medical equipment and [clean and
maintain] patients' rooms. As specifically
reflected in AHS's uncontested description of
the essential and marginal functions of a
[n]ursing [a]ssistant position, [p]laintiff
must lift patients from their beds to assist
with hygiene; transfer patients from beds to
chairs; and turn and reposition bedfast
patients to prevent bedsores. This requires
physical manipulation of patients and supplies
over twenty-five pounds, more specifically up
to one hundred pounds occasionally and fifty
pounds frequently, and this too is reflected
in AHS's uncontested description of the
essential and marginal functions of a
[n]ursing [a]ssistant position. . . . AHS
reasonably arrived at the conclusion that
[p]laintiff could not perform the essential
functions of a [n]ursing [a]ssistant as she
admits at her deposition and in an email to
[an AHS supervisor] that her shoulder injury
was a permanent condition that prevented her
from working as a [n]ursing [a]ssistant.
The judge continued:
Plaintiff also admits that she has a
lifting restriction of twenty pounds or less.
Moreover, [plaintiff's treating physician's]
medical opinion, and the evaluation that AHS
ordered confirmed th[e] conclusion [that
plaintiff could not perform the essential
functions of the nursing assistant position].
Plaintiff suggests a "sitter" position as an
accommodation, yet this position also requires
[p]laintiff [to] be able to lift and
manipulate over twenty-five pounds as [acting
as a] "sitter" is a part of a [n]ursing
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[a]ssistant position. . . . Therefore, because
[p]laintiff cannot prove that she can perform
the essential functions of a [n]ursing
[a]ssistant position either with or without
an accommodation, she cannot prove a prima
facie element of her failure to accommodate
claim. Accordingly, AHS cannot be found
liable under [the] LAD[.]
This appeal followed.
On appeal, plaintiff contends that she established a prima
facie case of failure to accommodate under the LAD, and the judge
erred by granting AHS's motion for summary judgment and dismissing
her complaint. We disagree.
"[W]e review the trial court's grant of summary judgment de
novo under the same standard as the trial court." Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J.
512, 524 (2012)). "That standard mandates 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.'" Ibid. (quoting R. 4:46-
2(c)).
[A] determination whether there exists a
"genuine issue" of material fact that
precludes summary judgment requires the motion
judge to consider whether the competent
8 A-3959-15T1
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.
[Brill, supra, 142 N.J. at 540.]
"To defeat a motion for summary judgment, the opponent must
'come forward with evidence that creates a genuine issue of
material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605
(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J.
v. State, 425 N.J. Super. 1, 32 (App. Div.), certif. denied, 211
N.J. 608 (2012)), certif. denied, 220 N.J. 269 (2015).
"[C]onclusory and self-serving assertions by one of the parties
are insufficient to overcome the motion." Puder v. Buechel, 183
N.J. 428, 440-41 (2005) (citations omitted). "When no issue of
fact exists, and only a question of law remains, [we] afford[] no
special deference to the legal determinations of the trial court."
Templo Fuente De Vida, supra, 224 N.J. at 199 (citing Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The LAD prohibits an employer from denying "an otherwise
qualified person with a disability" the opportunity to obtain or
maintain employment "solely because" he or she is disabled.
N.J.S.A. 10:5-29.1. Such action is considered an unlawful
employment practice "unless it can be clearly shown that a person's
disability would prevent such person from performing a particular
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job." Ibid. The LAD "prevents only unlawful discrimination
against disabled individuals" and "acknowledges the authority of
employers to manage their own businesses." Zive v. Stanley
Roberts, Inc., 182 N.J. 436, 446 (2005). Ultimately, "[w]hat
makes an employer's personnel action unlawful is the employer's
intent." Ibid.
"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). "[T]he elements of the
prima facie case vary depending upon the particular cause of
action." Ibid. "The evidentiary burden at the prima facie stage
'is rather modest: it is to demonstrate to the court that [the]
plaintiff's factual scenario is compatible with discriminatory
intent—i.e., that discrimination could be a reason for the
employer's action.'" Zive, supra, 182 N.J. at 447 (quoting Marzano
v. Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)).
In a reasonable accommodation case, a plaintiff must prove
that he or she (1) was disabled within the meaning of the LAD; (2)
"was qualified to perform the essential functions of the position
of employment," with or without reasonable accommodation; and (3)
"suffered an adverse employment action because of the disability."
Victor v. State, 401 N.J. Super. 596, 614-15 (App. Div. 2008),
aff'd in part, modified in part, 203 N.J. 383 (2010); see also
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Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91
(App. Div. 2001).
The LAD also prohibits the discriminatory discharge of an
employee based on a disability unless the employer "reasonably
conclude[s]" that the employee's disability "reasonably precludes
the performance of the particular employment." Jansen v. Food
Circus Supermarkets, Inc., 110 N.J. 363, 367 (1988) (quoting
N.J.S.A. 10:5-4.1); see also Raspa v. Office of Sheriff of
Gloucester, 191 N.J. 323, 338 (2007); Potente v. Cnty. of Hudson,
187 N.J. 103, 110-11 (2006). The LAD "leave[s] the employer with
the right to fire or not to hire employees who are unable to
perform the job, 'whether because they are generally unqualified
or because they have a handicap that in fact impedes job
performance.'" Jansen, supra, 110 N.J. at 374 (quoting Andersen
v. Exxon Co., 89 N.J. 483, 496 (1982)).
Thus, an employer is not required to accommodate an employee
who cannot perform his or her essential job functions even with
an accommodation. Hennessey v. Winslow Township, 368 N.J. Super.
443, 452 (App. Div. 2004), aff'd, 183 N.J. 593 (2005); see also
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 150 (3d
Cir. 2004) (affirming summary judgment for employer because LAD
does not require employer to accommodate employee who "was unable
to perform any of the functions of his job"); Van de Pol v. Caesars
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Hotel Casino, 979 F. Supp. 308, 313 (D.N.J. 1997) (granting summary
judgment to employer because the LAD does not require employer to
accommodate employee who "was not physically capable of safely
performing any of his [or her] duties").
Generally, an employer must initiate a good faith
"interactive process" regarding accommodations before determining
that the employee's disability reasonably precludes performance
of her essential job functions. Tynan v. Vicinage 13 of Superior
Court, 351 N.J. Super. 385, 400 (App. Div. 2002). Employers can
demonstrate such a good faith attempt by "meet[ing] with the
employee[,] . . . request[ing] information about the condition and
what limitations the employee has, ask[ing] the employee what he
or she specifically wants, show[ing] some sign of having considered
[the] employee's request, and offer[ing] and discuss[ing]
available alternatives when the request is too burdensome." Taylor
v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999).
Participation in the interactive process is not a one-way
street. It "is the obligation of both parties," and the "employer
cannot be faulted if after conferring with the employee to find
possible accommodations, the employee then fails to supply
information that the employer needs or does not answer the
employer's request for more detailed proposals." Ibid.
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Proof of the employer's failure to engage in the interactive
process alone is not sufficient to meet the employee's prima facie
burden. Donahue v. Consol. Rail Corp., 224 F.3d 226, 234 (3d Cir.
2000); Victor, supra, 401 N.J. Super. at 614. The employee still
has the burden to prove the basic essential elements of a
discrimination case, and must show that reasonable accommodation
for her disability was possible even where the employer acted
wrongfully in failing to engage in the interactive process to find
such an accommodation. Victor, supra, 401 N.J. Super. at 614-15.
As part of that burden, the employee must prove that he or she was
qualified to perform the job and that "the accommodation could
have been reasonably achieved." Id. at 615; see also Potente,
supra, 187 N.J. at 110.
However, after a complaint is filed, the employee is required,
as part of his or her burden of proof, to provide examples of what
the employer could have done to accommodate their specific needs.
Donahue, supra, 224 F.3d at 234-35. Where a plaintiff is unable
to show that a reasonable accommodation existed, "the employer's
lack of investigation into reasonable accommodation is
unimportant." Id. at 233; Willis v. Conopco, Inc., 108 F.3d 282,
285 (11th Cir. 1997).
Further, if an employee requests a transfer to another
position, the employee must prove that (1) "there was a vacant,
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funded position" available; (2) "the position was at or below the
level of [the employee's] former job"; and (3) the employee "was
qualified to perform the essential duties of this job with
reasonable accommodation." Donahue, supra, 224 F.3d at 230; see
also Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997). "[A]n
employer is not required to 'bump' another employee in order to
reassign a disabled employee to that position." Cravens v. Blue
Cross & Blue Shield, 214 F.3d 1011, 1019 (8th Cir. 2000).
Applying these standards, and considering the facts in the
light most favorable to plaintiff, we are satisfied that Judge
Minkowitz properly granted summary judgment to AHS, and affirm
substantially for the reasons expressed in his comprehensive April
7, 2016 written decision. We add the following brief comments.
The record fully supports Judge Minkowitz's finding that even
with an accommodation, plaintiff was unable to perform the
essential duties of the nursing assistant position or other patient
care jobs that might have been available at AHS prior to
plaintiff's retirement. Because of her shoulder injury, plaintiff
could no longer lift, push, or pull the amount of weight necessary
to complete her assigned tasks. There were no permanent light
duty positions available and, because plaintiff could not perform
nursing assistant functions, AHS needed to hire a new employee to
take her place.
14 A-3959-15T1
Plaintiff also failed to establish that there were other
positions available within the hospital system that she could
perform. AHS attempted to train plaintiff for administrative
positions, but she was unable to complete the required courses or
operate a computer. Contrary to plaintiff's contention, the record
simply does not support her claim that she could have been retained
as a "sitter" because there was no such position at AHS.
Plaintiff contends that AHS failed to participate in the
interactive process. However, this argument ignores the many
attempts AHS made to help plaintiff secure a non-patient-care
position in the hospital system prior to her decision to retire.
In addition to the training AHS offered plaintiff to transition
to a new, administrative position, the ER manager reviewed
available positions each week in order to determine whether
plaintiff was suited for them. In spite of AHS's efforts,
plaintiff was unable to identify any specific vacant position that
AHS could have offered her as an accommodation.
Because plaintiff failed to demonstrate, as a matter of law,
that she could perform her essential job functions even with an
accommodation, Judge Minkowitz properly granted AHS's motion for
summary judgment and dismissed plaintiff's complaint.
Affirmed.
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