CHURCH v. SEARS HOLDING CORPORATION et al
Filing
28
OPINION. Signed by Judge Renee Marie Bumb on 5/21/2014. (drw)
NOT FOR PUBLICATION
[Docket. No. 24]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
BARBARA CHURCH,
Plaintiff,
v.
Civil No. 12-cv-4814 (RMB/JS)
OPINION
SEARS HOLDING CORPORATION et
al.,
Defendants.
APPEARANCES:
William G. Blaney
Blaney & Donohue, P.A.
3200 Pacific Avenue – Suite 200
Wildwood, NJ 08260
Attorneys for Plaintiff
Todd Alan Ewan
Christin Choi
Fisher & Phillips LLP
201 King of Prussia Road
Radnor, PA 19087
Attorneys for Defendants
BUMB, United States District Judge:
I.
Introduction:
This matter comes before the Court upon a motion by
Defendants, Sears Holding Corporation and Sears Roebuck and Co.,
(hereinafter “Defendants”), for summary judgment pursuant to
Federal Rule of Civil Procedure 56(a). [Docket No. 24].
For the
reasons set forth below, Defendants’ motion shall be granted.
1
II.
Background: 1
A) Plaintiff’s Employment and Termination
Plaintiff, Barbara Church, was tragically involved in a car
accident in April of 2000, which resulted in her being in a coma
for 21 days and hospitalized for several months.
(Plaintiff’s
Statement of Material Fact (“PSMF”); Defendants’ Response to
Plaintiff’s Statement of Material Fact (“DRSMF”) ¶¶ at 1-2).
As
a result of this accident, Plaintiff experienced a traumatic
brain injury. (PSMF ¶ 4; Defendants’ Statement of Material Fact
(“DSMF”) ¶ 17).
Plaintiff states that her disabilities as a
result of the brain injury include: short term memory loss, mild
speech difficulty, muscle weakness, balance problems, and
difficulty performing manual tasks.
(Pl.’s Ex. E, Church
Deposition, Volume I (“Church Dep. I”) at 65:6-75:24).
In 2007, Plaintiff began working at the Sears store located
in Vineland, New Jersey, as a part-time Merchandise Customer
Assistant (“MCA”).
(DSMF at ¶ 2; Plaintiff’s Response to
Defendants Statement of Material Fact (“PRSMF”) at ¶ 2).
1
The facts recited herein are drawn from the parties’
respective Rule 56.1 Statements of Material Facts, Defendants’
Response to Plaintiff's Statement of Material Facts, and
Plaintiff's deposition testimony. While there are factual
disputes between the parties’ accounts, the facts are construed
in a light most favorable to Plaintiff, the non-moving party.
See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004). Thus,
whether there is a genuine dispute, this Court relies on
Plaintiff’s statement of material facts.
2
Plaintiff was a part-time, minimum wage employee, and her hours
fluctuated according to the needs of Sears’ business.
¶ 4; PSMF at ¶ 8).
(DSMF at
In 2007, Plaintiff received a copy of the
Sears Associate Handbook (DSMF; PRSMF at ¶ 5).
The 2010 version
of the Handbook contains a policy prohibiting discrimination of
any kind within the workplace. (Id. at ¶ 6).
Plaintiff was
aware that Sears had a policy of accommodating individuals with
disabilities, but states that there is no evidence that she ever
received the 2010 Handbook. (Id. at 8 & PRSMF at ¶ 10).
The
November 2010 Handbook included a phone number for an Ethics and
Compliance Helpline (called “88Sears”).
(PRSMF at ¶ 11).
While
Plaintiff acknowledged that she knew of the “phone line” she
stated that she “did not think she called the ‘phone line’
because it ‘never occurred to [her] to call.’” (Id. at ¶ 13).
As an MCA, Plaintiff’s job duties included: assisting
customers, replenishing items, folding and sizing merchandise,
cleaning and dusting, tidying fitting rooms, and pricing.
& PRSMF at ¶ 3; PSMF at ¶ 9).
(DSMF
When Plaintiff began her
employment with Sears, she had completed her treatment and
therapy related to her brain injury though she alleges she still
suffered disabilities from that injury.
(DSMF & PRSMF ¶ 18).
In August of 2008, during her first year of employment with
Sears, Plaintiff provided Sears with a note from her doctor that
indicated that she could not engage in heavy lifting and that
3
she could not work late hours. (Id. at ¶ 19).
In response to
the restriction, Sears scheduled Plaintiff to work from either
9:30 or 10:00 am until 2:00 pm. (PRSMF at ¶ 20).
On one
occasion Plaintiff was scheduled to work until 3:00pm.
at ¶ 20).
(PRSMF
Also, in compliance with the restrictions, Sears did
not require Plaintiff to do any heavy lifting.
(DSMF & PRSMF at
¶ 21).
Noemy Echevarria held the position of Softlines Assistant
Store Manager in the Vineland store from approximately 2007 to
June of 2009.
(DSMF & PRSMF at ¶ 23).
Echevarria oversaw the
MCAs, including Plaintiff, during that time.
(PSMF at ¶ 13).
Echevarria testified that she did not have any problems with
Plaintiff’s work when she worked for her.
(PSMF at ¶ 16).
Plaintiff does not recall ever receiving or signing two
performance reviews completed by Echevarria, produced by Sears:
one from September 2007, which reflected an overall performance
rating of 1.8 out of 5, and one from May 2008, which reflected a
performance rating of 2.2 out of 5.
Ex. K S0037-0040).
(PRSMF at ¶ 24-25; Defs.’
Echevarria testified that ratings of 3 were
not normally given out and a 3 would be considered “great.”
(PSMF at ¶ 16; Pl.’s Ex. J, Echevarria Dep. at 19:12-21).
In March of 2010, Daniel Fisher (“Fisher”) became the Store
Manager for the Vineland Sears store. (DSMF & PRSMF at ¶ 28).
Shortly thereafter, in May of 2010, Anthony Archie (“Archie”)
4
became the Assistant Store Manager for Softlines, who oversaw
the MCAs, monitored associate behavior, and was Plaintiff’s
manager.
(DSMF & PRSMF at ¶¶ 29-30).
At that time, Winifred
Hatcher (“Hatcher”) was the MCA Lead and both she and Plaintiff
worked under Archie.
(PSMF & DRSMF ¶ 18).
Hatcher testified
that she never had any problems with Plaintiff’s work and that
Plaintiff did whatever she asked her to do.
(PSMF at ¶ 20).
Hatcher further testified that she only ever had Plaintiff
working on “planograms” which are plans of the store.
Ex. LL, Hatcher Dep. at 16:11-19).
(Defs.’
Hatcher stated that
planograms did not have to be done often and would not
constitute enough work to keep Plaintiff busy; Hatcher was
unsure of whether Plaintiff was capable of performing other MCA
duties.
(Id. at 27:9-19).
Archie testified that when he first came to the store, he
was “trying to get a feel of what every associate was used to
and what was going on and what they were doing.”
32).
(PRSMF at ¶
Hatcher stated that during a meeting with Plaintiff and
Archie, they went over Plaintiff’s job description in the first
meeting and Plaintiff said very little, and, in the second
meeting, Plaintiff was asked to highlight items she could do on
the job description.
(PRSMF at ¶ 33).
Instead of highlighting
anything, Plaintiff asked to take the description home.
Plaintiff does not recall being asked to highlight a job
5
Id.
description.
(Pl.’s Opp. Br. at 8; Pl.’s Dep. II: 167 & 170-
71). Defendants contend that, as a result of this meeting,
Archie learned that Plaintiff was not performing certain
essential tasks required of her position such as cleaning,
dusting, straightening clothes on racks or tagging clothes.
Plaintiff denies this contention, stating that Archie refused to
provide her with accommodations to allow her to perform certain
tasks, such as gloves and a dust mask.
(DSMF & PRSMF at ¶ 34-
36).
Archie then met with Fisher and Human Resources Lead,
Laurellen Davis (“Davis”), to review Plaintiff’s employment file
to determine what medical documentation was on file.
PRSMF at ¶ 42).
(DSMF &
Plaintiff had provided Sears with an August 22,
2008 note from Vineland Medical Associates stating that she is
able to work “with restriction” of “[n]o heavy lifting” and “no
working late hours.”
(Defs.’ Ex. B at 000010).
After this
meeting with Fisher and Davis, Archie asked Plaintiff for
additional medical paperwork.
(DSMF & PRSMF at ¶ 44).
Plaintiff provided a September 1, 2010 note from her doctor,
Narasimhaloo Venugopal, M.D., which states: “Due to [history of]
pain[,] anoxic encephalopathy 2 she is partly disabled and can
2
Meaning damage to brain tissue due to lack of oxygen.
See http://www.medicinenet.com/encephalopathy/article.htm (last
visited March 31, 2014).
6
only work about four hours during morning hours & early
afternoon.”
(Pl.’s Ex. E at S0071).
Sears asked Plaintiff to obtain more specific documentation
regarding her limitations and provided her with a Health Care
Provider Certification Form (“Certification Form”).
PRSMF at ¶ 48).
(DSMF &
On November 10, 2010, before Plaintiff returned
the Certification Form, Archie contacted Human Resources
consultant Adrienne Kane (“Kane”) of 88Sears.
Kane advised
Archie that he could keep Plaintiff off the work schedule “until
the accomm[odation] form [was] submitted.” (Defs.’ Ex. I at
S0127).
Nearly a week later, Plaintiff provided a November 16, 2010
note from her doctor which states, in relevant part: “Barbara
Church is under the care of this practice for a variety of
medical problems including: ataxia, 3 cerebral and encephalopathy
anoxic, due to a traumatic brain injury.
weakness and problems with balance.
approximately 5 hours per day.
She has general
She can only work
She is unable to do repetitive
lifting due to muscle fatigue.” (Defs.’ Ex. J at S0136).
She
also provided Sears with the Certification Form dated November
3
Ataxia describes a lack of muscle control during voluntary
movements, such as walking or picking up object. See
http://www.mayoclinic.org/diseasesconditions/ataxia/basics/definition/con-20030428 (last visited
March 31, 2014).
7
17, 2010, which states that Plaintiff is substantially limited
in the major life activities of talking and performing manual
tasks.
(Defs.’ Ex. J at S0134-0135).
reads: “Mild speech difficulty.
for 30 mins of this per hour.”
The specific description
No lifting over 20 lbs and only
Id.
Under “Essential Functions
Determination,” the Form states: “The job function(s) this
patient is unable to perform are: 1) [d]ue to traumatic brain
injury has balance problems & unable to climb on ladders,
balance self[,] 2) [d]ue to muscle weakness, can only work about
5 hrs a day & can only do lifting on an off – not continuously.”
Id.
Under the section entitled “Accommodation Request,” the
only item checked is “Modified Work Schedule” - 5 hours per day.
Id.
Plaintiff understood that the purpose of the Certification
Form was for Sears to identify any limitations on Plaintiff’s
ability to perform her job at Sears.
(DSMF & PRSMF at ¶ 54).
After receiving Plaintiff’s Certification Form, Fisher, Archie
and Davis consulted with Kane to determine how to proceed.
(DSMF & PRSMF at ¶ 57).
Kane reviewed the Certification Form
with Sears’ accommodations consultant, Jeanne Bartlett, and the
store was advised to attempt to meet with Plaintiff again to
review the job description and highlight the job duties that she
could perform.
(DSMF & PRSMF at ¶ 58-59).
8
In order to find out what duties she could perform, Sears
scheduled a meeting with Plaintiff for December 6, 2010.
& PRSMF at ¶ 60).
(DSMF
Plaintiff arrived for the meeting with her
husband, David Church, and was informed that he was not
permitted to attend the meeting with Plaintiff.
at ¶ 62-63).
(DSMF & PRSMF
Mr. Church testified that he came to the meeting
to “protect” his wife and make sure she did not get taken
advantage of.
(PSMF at ¶ 71).
Mr. Church has never worked at
Sears, does not have any power of attorney status on behalf of
Plaintiff, and is not Plaintiff’s legal guardian. (DSMF & PRSMF
at ¶ 75-77).
Plaintiff admits that she does not have a problem
understanding people when they speak, but alleges she does have
issues processing and remembering what people said.
71).
(PRSMF at ¶
No one from Sears asked or directed either Mr. Church or
Plaintiff to leave, but, after being told her husband was not
permitted to attend the meeting, Plaintiff opted to leave the
meeting rather then proceed.
(DSMF & PRSMF at ¶ 64-65).
After the failed December 6, 2010 meeting, the store
consulted with Kane regarding how to proceed with respect to
Plaintiff and Kane advised the store to contact the Plaintiff by
telephone to try to determine what job duties she could perform.
(DSMF & PRSMF at ¶ 79-80).
Kane testified that she wanted the
store “to do the interactive process to the greatest extent they
possibly could.”
(DSMF & PRSMF at ¶ 81).
9
Archie, Fisher, and Davis called Plaintiff to review her
job description with her over the phone.
Plaintiff alleges that
she was out Christmas shopping when they called and read the
exhaustive description to her over the phone, telling Plaintiff
not to interrupt until they were done.
(PRSMF at ¶ 82).
Plaintiff did not respond with what duties she could do, but
alleges that the manner in which the call was made was
“purposefully calculated to elicit no response and take
advantage of [her] short term memory issues.”
(PRSMF at ¶ 85).
Plaintiff testified that Archie and Fisher went through her
duties during the call and did not let her “object.” (Pl’s Dep.
II 202:17-18).
Plaintiff’s employment was terminated on December 11, 2010.
Davis completed the paperwork for Plaintiff’s termination, which
was coded under a “voluntary” termination code - “HEA” or
“health reasons” - which is an internal code that relates to the
eligibility of an employee to reapply for a position with Sears.
(DSMF & PRSMF at ¶ 89).
Plaintiff has admitted that no one at
Sears expressly told her that her employment was being
terminated because of her disability.
(DSMF & PRSMF at ¶ 91).
B) Plaintiff’s Allegations and Complaint
Pursuant to her First Amended Complaint, Plaintiff alleges
that Archie, shortly after becoming her manager, “began a
10
campaign of harassment and discrimination against [her] because
of her disability.”
(PSMF at ¶ 22).
Plaintiff contends that
this harassment and discrimination included, inter alia:
•
•
•
•
•
•
•
Repeatedly requesting medical certifications despite the
fact that she did the same job duties and already had
accommodation paperwork in her file;
Reducing her hours and eventually removing her from the
schedule; 4
Repeatedly asking her to perform duties outside her
restrictions such as climb ladder and work extra hours;
Refusing to provide her with dust masks and gloves for
cleaning;
Attempting to “guilt” Plaintiff into working later and
trying to make her feel bad for her special needs;
Asking Plaintiff accommodation questions in a manner in
which she could not respond because of her short-term
memory issues; and
Giving Plaintiff “snippy” responses to her refusal to work
beyond her medical limits.
(PSMF at ¶ 22).
Based on these factual allegations, Plaintiff’s First
Amended Complaint, removed to this Court by Defendants, contains
three separate counts all asserted pursuant to the New Jersey
Law Against Discrimination (“LAD”), N.J.S.A. § 10:5-1 et seq.
Count One is a claim for disability discrimination based on
Sears’ reduction of Plaintiff’s hours and her termination,
which, Plaintiff contends was the result of her disability.
In
Count Two, Plaintiff contends that Sears failed to engage in
4
More specifically, Plaintiff alleges that her hours were
reduced in or about June 2010, but Plaintiff has admitted that
she previously had problems with her hours being reduced even
before Archie joined the store. (DSMF & PRSMF at ¶ 95 & 98).
11
good faith in the interactive process required by the LAD to
determine whether Plaintiff’s disability could be accommodated.
Finally, in Count Three, Plaintiff avers that the actions of
Archie and Fisher created and allowed a hostile work environment
in violation of the LAD.
Defendants have moved for summary
judgment on all three Counts.
III. Standard:
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A fact is “material” if it will “affect the
outcome of the suit under the governing law . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
Id.
When deciding the
existence of a genuine dispute of material fact, a court’s role
is not to weigh the evidence: all reasonable “inferences,
doubts, and issues of credibility should be resolved against the
moving party.”
Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307
n.2 (3d Cir. 1983).
However, a mere “scintilla of evidence,” without more, will
not give rise to a genuine dispute for trial.
U.S. at 252.
Anderson, 477
Further, a court does not have to adopt the
12
version of facts asserted by the nonmoving party if those facts
are “utterly discredited by the record [so] that no reasonable
jury” could believe them.
(2007).
Scott v. Harris, 550 U.S. 373, 380
In the face of such evidence, summary judgment is still
appropriate “where the record . . . could not lead a rational
trier of fact to find for the nonmoving party . . . .”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P.
56(c)).
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’”
56(e)).
Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant’s burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatte v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010)(citing
13
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat
summary judgment.”).
IV.
Analysis:
Count I - Disability Discrimination
The Court turns first to Plaintiff’s claim of disability
discrimination brought pursuant to the LAD.
New Jersey enacted
the LAD in furtherance of the state's public policy “to
eradicate invidious discrimination from the workplace.” Carmona
v. Resorts Int'l Hotel, Inc., 915 A.2d 518, 528 (N.J. 2007)
(citations omitted).
It is unlawful “[f]or an employer, because
of the race . . . age . . . [or] disability . . . of any
individual, . . . to discharge” such a person “unless justified
by lawful considerations . . . .”
N.J. Stat. Ann. § 10:5-12(a).
The LAD “must be applied sensibly with due consideration to the
interests of the employer, employee, and the public.”
Muller v.
Exxon Research & Engineering Co., 786 A.2d 143, 147 (N.J. Super.
Ct. App. Div. 2001)(citing Jansen v. Food Circus Supermarkets,
Inc., 541 A.2d 682 (N.J. 1988)).
As an initial matter, the parties dispute the proper
standard to be used in analyzing Plaintiff’s disability
discrimination claim – i.e., the three-step, federal burdenshifting framework established in McDonnell Douglas v. Green,
14
411 U.S. 792 (1973), or the “mixed-motive” framework as set
forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),
"under which a plaintiff may show that an employment decision
was made based on both legitimate and illegitimate reasons."
Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008).
This Court will begin its analysis with the familiar
burden-shifting framework.
Under this standard, to state a
prima facie case of disability discrimination under the LAD,
Plaintiff must show that:
(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.
Victor v. State, 203 N.J. 383, 409
(2010).
After the plaintiff has established a prima facie case, the
burden of production shifts to the defendant to offer a
legitimate, nondiscriminatory reason for the adverse employment
action.
See Bergen Commercial Bank, 157 N.J. at 210.
Then,
during the third stage of the process, the burden of production
shifts back to the employee, who has the burden to prove by a
preponderance of the evidence that the legitimate
nondiscriminatory reasons articulated by the employer was not
15
the true reason for the employment decision but was “merely a
pretext for discrimination.”
Id. at 211 (quotations omitted).
“The ultimate burden of persuasion that the employer
intentionally discriminated against the employee remains with
the employee at all times.”
Jansen, 541 A.2d at 691 (citations
omitted).
The Defendants contend that Plaintiff cannot establish a
prima facie case because she cannot establish the second prong,
that is: “she has not set forth any evidence that she was
qualified for the position of [MCA] with Sears and that she was
actually performing the job at a level that met Sears’
expectations.”
(Defs.’ Br. at 18).
In Zive v. Stanley
Roberts, the New Jersey Supreme Court made clear that the burden
at the second prong is a light one to be based on objective
standards: “as long as [a plaintiff] adduces evidence that he
has, in fact, performed in the position up to the time of
termination, the slight burden of the second prong is
satisfied.”
182 N.J. 436,455-56 (2005).
While the burden is
slight, this Court is persuaded that Plaintiff has presented no
competent evidence that she was performing the objective
essential functions of the job.
The parties have not provided this Court with a clear
explanation of the governing job description, though several
were introduced at Archie’s deposition.
16
(See PSMF, Ex. A,
Archie 2-6).
Despite this lack of clarity surrounding the
operative description, each job description for an MCA provided
by the parties set forth that the duties, responsibilities and
requirements set forth therein were representative in nature and
not exhaustive.
Moreover, the job description with the date of
May 4, 2008 specifically states that the MCA is to perform other
duties and jobs as assigned.
(Id. at Archie 5).
Regardless, Plaintiff has admitted that cleaning and
dusting were among the essential job duties of an MCA, (PRSMF at
¶ 3; PSMF at ¶9; Pl.’s Opp. Br. at 4 5).
She argues, however,
that she could not clean – i.e., perform that aspect of her job
– because Archie refused “the accommodation of gloves and a dust
mask.”
Pl.’s Opp. Br. at 25.
See Church Dep. I at 60:10-13 (“I
asked for gloves and [Archie] couldn’t provide them.”); PRSMF at
¶ 36 (“When asked to clean or dust by Archie, [Plaintiff]
requested an accommodation of gloves and a dust mask, Archie
refused these accommodations.
Plaintiff was willing to perform
these tasks with this simple accommodation.”)
Plaintiff has not, however, demonstrated by any competent
evidence of record that this “accommodation” was required
because of her disability, as she has demonstrated no medical
5
“As an MCA, Mrs. Church’s responsibilities included
organizing the sales floor, organizing racks by size, dusting,
greeting and helping customers and pricing objects.”
17
need for this alleged accommodation.
See Mickens v. Lowe's
Cos., Inc., 07-CV-6148, 2009 U.S. Dist. LEXIS 115876, at *20, n.
12 (D.N.J. Dec. 14, 2009)(stating that while plaintiff preferred
day shift work, he was not restricted to working a day shift by
his doctors, “and Lowe's was, therefore, under no obligation to
place him in such a position.”).
There was nothing in any of
the medical certification forms provided by Plaintiff to Sears
saying anything about dusting or cleaning or her need for
gloves.
Plaintiff’s failure to complete the cleaning and
dusting essential function of her job was not based on a lack of
accommodation of a medical need, as Plaintiff alleges, but based
merely on her preferences and related refusal to complete the
task.
Therefore, this Court agrees with Defendants that
Plaintiff has not produced evidence that she was adequately
performing the essential functions of her job, either with or
without an accommodation.
See Mathew v. Cardone Industries,
Inc., No. 97-7490, 1998 U.S. Dist. LEXIS 9899, at * 9-10 (E.D.
Pa. July 2, 1998)(“[r]easonable accommodations are. . . not
accommodations based upon an individual preferences. . . [and]
it appears unreasonable, to say the least, to require an
employer’s ‘reasonable’ accommodation to include accommodations
for medical needs of which the employer has no competent
knowledge and for which the employee has provided no
substantiation.”) aff’d 205 F.3d 1329 (3d Cir. 1999).
18
For this
reason, Plaintiff cannot establish a prima facie case of
disability discrimination and summary judgment is appropriate.
See Victor, 203 N.J. at 409 (setting forth elements of prima
facie case); Svarnas v. AT& T Communications, 326 N.J. Super.
59, 73, 740 A.2d 662 (App. Div. 1999) ("nothing in the LAD is
construed to prevent the termination of any person who in the
opinion of the employer, reasonably arrived at, is unable to
perform adequately the duties of employment."); Mickens, 2009
U.S. Dist. LEXIS 115876 at *17 (stating that a plaintiff “cannot
claim that the assignment impermissibly exceeded his medical
restrictions when the evidence shows that he simply refused to
do the work.”). 6
Moreover, Plaintiff has not set forth any arguments, let
alone evidence, related to the fourth prong that Sears “sought
another to perform the same work after she was removed from the
position” as required under the last prong of the prima facie
test.
See Victor, 203 N.J. at 409. In sum, because Plaintiff
cannot establish a prima facie case of disability discrimination
under the LAD, summary judgment will be granted in favor of
6
This said, this Court does not find Defendants’ arguments
about Plaintiff’s performance ratings of 1.8 and 2.2 out of 5
persuasive in light of Echevarria’s testimony that ratings of 3
were not normally given out and a 3 would be considered “great,”
Pl.’s Ex. J. at 19:12-21 (PSMF at ¶ 16).
19
Defendants as to Count One of Plaintiff’s First Amended
Complaint.
Even assuming, however, that Plaintiff has carried her
burden of establishing a prima facie case of disability
discrimination, the burden would then shift to Sears to
articulate a neutral, non-discriminatory reason for Plaintiff’s
termination.
The Court finds that Sears has carried this burden
by presenting evidence, including Plaintiff’s admissions
discussed above, that she was not performing aspects of her job.
The burden thus, shifts back to Plaintiff to show that
Defendants’ legitimate, non-discriminatory reason is a pretext
for discrimination.
Bergen Commercial Bank, 157 N.J. at 210.
Plaintiff has not met her burden here.
Plaintiff has offered no
evidence to demonstrate that she was satisfactorily completing
her essential job functions, which is insufficient to survive
summary judgment.
See Cridland v. Kmart, 929 F. Supp. 2d 377,
389-90 (E.D. Pa. Mar. 11, 2013)(finding that “plaintiff’s
uncorroborated testimony about discriminatory treatment cannot –
in its own - demonstrate invidious intent at the summary
judgment stage.”).
Therefore, Plaintiff has not carried her
burden of demonstrating such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action such that
a reasonable factfinder could rationally find them "unworthy of
20
credence."
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994);
see also Zive, 182 N.J. 4365 at 456 (“a plaintiff’s
acknowledgement of performance deficiencies. . .will generally
lighten the employer’s burden on the second phase [of the burden
shifting framework] and render more difficult plaintiff’s
ability to prove pretext.”).
Plaintiff disputes the applicability of the McDonnellDouglas framework to the instant matter and, instead, contends
that she has produced direct evidence of discrimination
sufficient to support the use of the mixed-motive framework as
set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
(Pl.’s Opp. Br. at 15).
More specifically, Plaintiff sets forth
the following allegations as grounds for her argument:
•
•
•
At his deposition, Fisher, who terminated Plaintiff,
stated that Plaintiff was terminated because “it was
an issue where we didn’t want her to hurt herself or
the company to be at fault for her like having to
perform something”;
Davis admitted to coding Plaintiff’s termination on
Sears’ paper work for “health reasons”;
Archie stated to Plaintiff “sorry we’re all not
special and can’t only work in the mornings.”
(Pl.’s Opp. Br at 19).
While both parties discuss the need for direct evidence in
the mixed-motive, LAD context, the applicable mixed-motive
standard in this case is muddled.
See Mehta v. Fairleigh
Dickenson University, 530 Fed. Appx. 191, 195, n. 3 (3d Cir.
2013)(applying the direct evidence standard in a LAD case and
21
stating that whether the mixed-motive framework as set forth in
the Price Waterhouse decision applies in that context is a
“thorny issue.”); see also Makky v. Certoff, 541 F.3d 205, 214
(3d Cir. 2008)(“a plaintiff does not need to present ‘direct
evidence’ of discrimination to proceed on a mixed-motive theory
of discrimination under Title VII”); Myers v. AT&T, 380 N.J.
Super. 443, 461 (N.J. App. Div. 2005)(stating, in the LAD
context that “the direct evidence requirement may no longer be
viable in any mixed motive analysis”)(emphasis added).
Clearly, “there is no consensus among the federal courts
respecting the scope of the Desert Palace decision . . . nor is
their guidance from [the New Jersey] Supreme Court concerning
how the decision in Desert Palace might alter its analysis of
the Price Waterhouse formulation.”
Myers, 380 N.J. at 460.
That said, this Court looks to the recent decisions of both the
Third Circuit and New Jersey courts discussing the mixed-motive
standard, and, more specifically, cases discussing mixed-motive
in the directly analogous LAD, disability discrimination claim
context for guidance in resolving the instant motion. 7
7
It is worth noting that following the Supreme Court’s
ruling in Gross v. FBL Fin. Servs., 557 U.S. 167 (2009), courts
in this Circuit have concluded that the mixed-motive analysis
does not apply under the Americans with Disabilities Act. See
e.g., Lamberson v. Commonwealth of Pa., 963 F. Supp. 2d 400, 413
(M.D. Pa., 2014); Warshaw v. Concentra Health Servs., 719 F.
Supp. 2d 484, 502 (E.D. Pa. 2010).
22
In A.D.P. v. ExxonMobil Research and Engineering Co., 428
N.J. Super. 518, (N.J. App. Div. 2012), the Appellate Division
embraced the need for direct evidence in the mixed-motive
context, stating that “[a]lthough there is a lack of consensus
among federal courts as to the application of the Price
Waterhouse principles to various statutory causes of action
following the United States Supreme Court's decision in Desert
Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed.
2d 84 (2003), our Supreme Court has interpreted ‘mixed motive’
cases and their direct evidence requirement to be broadly
applicable to discrimination cases without regard to the
statutory context.”
added).
428 N.J. Super. at 533, n.5 (emphasis
The court went on to state that direct evidence “is
evidence that an employer placed substantial reliance on a
proscribed discriminatory factor in making its decision to take
the adverse employment action.”
Id. at 532 (internal quotations
omitted).
In addition to the New Jersey cases discussing the LAD, the
Third Circuit recently stated in the Title VII context that,
[u]nder the alternative, ‘mixed-motive’ analysis,
if the plaintiff shows "by direct evidence that an
illegitimate criterion was a substantial factor in the
[employment] decision," the burden shifts to the
defendant "to convince the trier of fact that it is
more likely than not that the decision would have been
the same absent consideration of the illegitimate
factor.”
23
Tolan v. Temple Health Sys. Trans. Team, Inc., (quoting Brown v.
J. Kaz, Inc., 581 F.3d 175, 182 (3d Cir. 2009) (quoting Price
Waterhouse, 490 U.S. at 276 (O'Connor, J., concurring)).
Applying a mixed-motive standard requiring direct evidence,
as set forth in cases such as A.D.P., 428 N.J. Super. 518,
reveals that Plaintiff has failed to produce such evidence here
sufficient to survive summary judgment.
As clearly stated by
the New Jersey Supreme Court, direct evidence of discrimination
is of a nature that must “demonstrate not only a hostility
toward members of the employee’s class, but also a direct causal
connection between that hostility and the challenged employment
decision.”
(1999).
Bergen Commercial Bank v. Sisler, 157 N.J. 188, 208
In her brief, Plaintiff fails to cite Fisher’s
statement in its entirety, which, when read in toto, makes clear
that the termination was based on the failure of Plaintiff to
tell Sears what job tasks she could do:
it was an issue where we didn’t want her to hurt herself or
the company to be at fault for any, like having her perform
something. So that was what we did, based off of – what we
did, based off of her not being able to tell us what she
could do.
(Defs.’ Ex. E, Fisher at 93:15-20) (emphasis added).
Neither Fisher’s statement at deposition, the coding of
termination for “health reasons”, which, Defendants have shown
was done so that Plaintiff would be eligible for re-hire and not
24
as the basis of her termination, 8 nor Archie’s comment (which
also serves as the basis for Plaintiff’s hostile work
environment claim) suffice to demonstrate either the hostility
or nexus between such hostility and the decision to terminate
Plaintiff that would be required to warrant the application of
the mixed-motive framework.
See Bergen, 157 N.J. at 208-09
(referring to case law finding that an employer’s comment that
“everyone over 35 should be sacked” as circumstantial evidence
as compared to a scrap of paper saying “fire Rollins-she is too
old” as direct evidence).
Moreover, it is undisputed that no
one at Sears expressly told Plaintiff that her employment was
being terminated because of her disability.
(DSMF & PRSMF at ¶
91).
Even eschewing the need for direct evidence and employing a
mixed-motive framework in line with cases like Makky, 541 F.3d
at 214, which states that “a plaintiff does not need to present
‘direct evidence’ of discrimination to proceed on a mixed-motive
theory of discrimination under Title VII,” this Court finds that
8
Defendants have presented evidence that the code is not
the reason Plaintiff was terminated. See Deposition of Sarah
Levee, Sears’ Fair Employment Consultant at 38:9-13 “Q: is that
your understanding of the reason why she was terminated, for
health reasons? A: No. This is not a reason why someone was
terminated; it is simply a code used internally.” Moreover,
Plaintiff has admitted that the termination code relates to the
eligibility of an employee to reapply for a position with Sears.
(PRSMF at ¶ 89).
25
Plaintiff’s claims cannot survive summary judgment. 9
Under the
mixed-motive framework as articulated in Desert Palace and
applied in a LAD context in Myers stated that “[a]t a bare
minimum, a plaintiff seeking to advance a mixed-motive case will
have to adduce circumstantial evidence of conduct or statements
by persons involved in the decisionmaking [sic] process that may
be viewed as directly reflecting the alleged discriminatory
attitude.”
See Myers, 380 N.J. Super. at 462 (quoting Fleming
v. Corr. Healthcare Solutions, 164 N.J. 90, 101 (2000)(internal
quotations omitted)).
“If a plaintiff can show that the
discriminatory motive and the challenged action are linked, the
burden then shifts to the defendant to show that it is "more
likely than not" that the legitimate motive was the primary
reason behind the action.” Cottrell v. Good Wheels, 458 Fed.
Appx. 98, 102 (3d Cir. Jan. 23, 2012)
Even assuming, arguendo, that Plaintiff’s disability was
part of the decision to terminate her, for reasons discussed at
length above, it is clear that the Defendant would have taken
the same course of action in light of the undisputed fact that
Plaintiff was simply refusing to perform job duties for which
she did not require an accommodation.
9
See Cottrell v. Good
See Myers v. AT&T, 380 N.J. Super. at 463 (deciding a case
in the alternative i.e., under either the standard as
articulated in Desert Palace or the stricter Price Waterhouse
standard).
26
Wheels, No. 08-1738, 2011 U.S. Dist. LEXIS 26646, at * 21-22,
n.5 (D.N.J. Mar. 15, 2011)(stating that “under the mixed-motive
analysis, if a defendant takes adverse action toward a plaintiff
for both discriminatory and nondiscriminatory reasons, the
defendant bears the burden of proving that he would have taken
the same action notwithstanding his discriminatory
considerations” and granting summary judgment where the evidence
supported the conclusion that defendant banned plaintiff because
he was disrupting customers), aff’d 458 Fed. Appx. 98 (3d Cir.
Jan. 23, 2012).
Moreover, “in a mixed-motive employment
discrimination case a plaintiff who does not possess the
objective baseline qualifications to do his/her job will not be
entitled to avoid dismissal.”
Makky, 541 F.3d at 215.
While
the issue of job qualification is often one of fact, see id., in
the instant case, Plaintiff has admitted that she refused to
complete tasks for which she was not entitled to an
accommodation – i.e., cleaning and dusting.
Count II - Failure to Accommodate
Under the LAD, an employer “must make a reasonable
accommodation to the limitations of a [handicapped] employee or
applicant . . . unless the employer can demonstrate that the
accommodation would impose an undue hardship on the operation of
its business.”
N.J. Admin. Code § 13:13-2.5(b); see Potente v.
27
Cnty. of Hudson, 900 A.2d 787, 791 (N.J. 2006).
New Jersey
courts have recognized an interactive process of arriving at a
reasonable accommodation for a disabled employee.
Jones v.
Aluminum Shapes, Inc., 772 A.2d 34, 41 (N.J. Super. Ct. App.
Div. 2001).
A disabled employee can show that his employer
failed to participate in this interactive process by
demonstrating that:
(1)
The employer knew about the employee’s disability;
(2)
The employee requested accommodation or assistance for
his disability;
(3)
The employer did not make a good faith effort to
assist the employee in seeking accommodation; and
(4)
The employee could have been reasonably accommodated
but for the employer’s lack of good faith.
Jones, 772 A.2d at 41; Tynan v. Vicinage, 798 A.2d 648 (N.J.
Super. Ct. App. Div. 2002).
“An employee must satisfy all four
prongs of the test to demonstrate that there was no ‘interactive
process.’”
Mickens, 2009 U.S. Dist. LEXIS 1115876, at *13.
Acting in bad faith can be demonstrated by the “‘failure by one
of the parties to help the other determine what specific
accommodations are necessary,’ ‘obstruct[ing] or delay[ing] the
interactive process’ of negotiating a reasonable accommodation,
and ‘fail[ing] to communicate, by way of initiation or
response.’”
Rosenfeld v. Canon Business Solutions, Inc., No.
09-4127, 2011 U.S. Dist. LEXIS 115415, at * 43-44 (D.N.J. Sept.
28
26, 2011)(quoting Taylor v. Phoenixville School Dist., 184 F.3d
296, 312 (3d Cir. 1999)).
In support of her failure to accommodate claim, Plaintiff
alleges that while she requested that she not be required to
climb ladders and that her hours be limited to morning and early
afternoon, Archie repeatedly asked her to climb ladders and work
late hours.
(DSMF & PRSMF at ¶ 99-100).
Plaintiff has admitted
that Sears complied with the explicit restrictions in the notes
from her doctor with respect to working late hours and avoiding
heavy lifting.
(DSMF & PRSMF at ¶ 20-21).
She further admits
that even though Archie asked her to climb ladders in violation
of her medical restriction, which Defendants dispute, she
refused to do so. (DSMF & PRSMF at ¶ 101-02 & 104).
Finally,
Plaintiff contends that Sears’ refusal to allow her husband to
“help her in the process” constitutes bad faith and imposes
responsibility on Sears for a breakdown in the interactive
process. (Pl.’s Opp. Br. at 36).
For the reasons discussed above, however, this Court has
found that, based on her own admissions, Plaintiff was not
performing the essential functions of her job.
While Plaintiff
contends that she was not completing cleaning tasks because
Sears refused to accommodate her by providing gloves and a dust
mask, Plaintiff has shown no evidence of entitlement to the
accommodation she sought.
See Mickens, 2009 U.S. Dist. LEXIS
29
115876, at *20, n. 12 (stating that while plaintiff preferred
day shift work, he was not restricted to working a day shift by
his doctors, “and Lowe's was, therefore, under no obligation to
place him in such a position.”); Mathew, 1998 U.S. Dist. LEXIS
9899 at * 9-10 (“it appears unreasonable, to say the least, to
require an employer’s ‘reasonable’ accommodation to include
accommodations for medical needs of which the employer has no
competent knowledge and for which the employee has provided no
substantiation.”) aff’d 205 F.3d 1329 (3d Cir. 1999).
Similarly, Plaintiff has failed to present any evidence beyond
her own unsupported allegation that her husband’s presence at
the December 6, 2010 meeting was a needed accommodation.
id.
See
In other words, Plaintiff cannot demonstrate that she
“could have been reasonably accommodated but for the employer’s
lack of good faith.”
Jones, 772 A.2d at 41.
Even without finding that Plaintiff was not performing the
essential functions of her position, this Court finds that
Plaintiff has not demonstrated that Sears failed to engage in
the interactive process: “Employers can show their good faith in
a number of ways, such as taking steps like the following: meet
with the employee who requests an accommodation, request
information about the condition and what limitations the
employee has, ask the employee what he or she specifically
wants, show some sign of having considered employees’ request,
30
and offer and discuss available alternatives when the request is
too burdensome.”
Taylor, 184 F.3d at 317. 10
In this matter, Plaintiff does not dispute that the
December 6, 2010 meeting was set up at Sears’ initiative to
discuss Plaintiff’s need for accommodations and the job duties
that she could perform.
(DSMF & PRSMF at ¶ 58-60).
Moreover,
while no one from Sears asked or directed either Church or
Plaintiff to leave, after being told her husband was not
permitted to attend the meeting, it was Plaintiff’s decision to
leave the meeting rather then proceed.
65).
(DSMF & PRSMF at ¶ 64-
In other words, Plaintiff, not Sears, halted this aspect
of the interactive process.
Additionally, Plaintiff does not
contest that, consistent with the dictates of Taylor, Sears
requested information about the condition and what limitations
she had; in fact, Sears’ inquiries regarding Plaintiff’s
limitations form the very basis of some her allegations of
discrimination and harassment.
See Mickens, 2009 U.S. Dist.
LEXIS 115876 at *26 (“Plaintiff’s own testimony indicates that
there was an interactive process.
For instance, Plaintiff
suggests that he continually had to go to his doctor to
10
While decided in the context of the Americans with
Disabilities Act, this case is instructive as “both federal and
New Jersey state courts have consistently looked to federal law
for guidance in construing the NJLAD.” LaResca v. American
Telephone & Telegraph, 161 F. Supp. 2d 323, 334 (D.N.J. 2001).
31
determine his medical restrictions. . . .”).
As such, Plaintiff
has failed to meet her burden of demonstrating that Sears failed
to engage in the interactive process and Plaintiff’s failure to
accommodate claim shall be dismissed.
See Rosenfeld, Inc., 2011
U.S. Dist. LEXIS 115415 at * 49 (granting summary judgment where
plaintiff failed to prove breakdown of interactive process and
failure to identify the existence of a reasonable
accommodation). 11
Count III - Hostile Work Environment
In support of her hostile work environment claim, Plaintiff
alleges that Archie and others (not specified, as Plaintiff
could not recall at her deposition who these people were) would
make sigh noises at her, roll their eyes and make rude comments
to her because of her disability. (DSMF & PRSMF at ¶ 107).
She
also states that Archie and others would try to get her to climb
ladders, guilt her into working later hours and tried to make
her feel bad for having special needs.
(DSMF & PRSMF at ¶ 107).
In support of her hostile work environment claim, the only
specific comment Plaintiff recalls is Archie saying, “Sorry
we’re not all special and can’t only work in the mornings.”
11
While Plaintiff contends that Sears took advantage of her
short term memory, she has presented no competent evidence that
she made Sears aware of those issues via a doctor’s note or
otherwise.
32
(DSMF & PRSMF at ¶ 107-108).
She also contends that her work
environment was hostile because Archie:
•
•
•
•
•
Repeatedly requested medical certifications;
Reduced her hours and eventually removed her from the
schedule;
Refused to provide her with simple accommodations such as
dust masks for cleaning;
Purposefully asked her accommodation questions in a manner
in which she could not respond because of short-term memory
issues; and
Gave her “snippy” responses to her refusal to work beyond
her documented medical limits.
(Pl.’s Opp. Br. 39).
Plaintiff could not identify when such
conduct occurred and could not identify anyone else who engaged
in any conduct in support of her hostile work environment claim.
(DSMF & PRSMF at ¶ 110).
In order to demonstrate a hostile work environment claim
under the LAD, a plaintiff must demonstrate that the harassment
(1) would not have occurred but for the employee's protected
status, and was (2) severe or pervasive enough to make a (3)
reasonable person believe that (4) the conditions of employment
have been altered and that the working environment is hostile or
abusive.”
Pikowski v. Gamestop, Inc., 2013 U.S. Dist. LEXIS
175193, at *28-29 (D.N.J. Dec. 11, 2013) (citing Shepard v.
Hunterdon Developmental Ctr., 174 N.J. 1, 28 (2002)).
Whether conduct is "severe or pervasive" depends on, among other
things, whether the conduct is frequent, whether it is
physically threatening or merely verbally offensive, and whether
33
it unreasonably interferes with plaintiff’s job performance.
Anastasia v. Wakefield, 455 Fed. Appx. 236, 239 (3d Cir. 2011);
Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 195,
952 A.2d 1034 (2008).
Even taking all of Plaintiff’s allegations as true for
purposes of this motion, and considering the “totality of
circumstances” 12 this Court finds that Plaintiff has failed to
demonstrate conduct sufficiently severe or pervasive enough to
make a reasonable person believe the conditions of her
employment were hostile or abusive.
While it is well
established that even a single severe act can suffice to support
a claim for a hostile work environment, 13 Plaintiff’s allegations
of comments made rise nowhere near the level of severity found
in such cases and in the one disability-based hostile work
environment case cited by Plaintiff in support of her claim.
See Leonard v. Metro. Life Ins. Co., 318 N.J. Super 337, 341
(N.J. App. Div. 1999)(denying summary judgment based on two
comments: "I don't give a f___ about you being diabetic and
having low blood sugar. . . .We're going to do things my way or
12
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d
Cir. 1990)(stating that in determining whether the conduct at
issue is sufficiently extreme, the court must consider the
totality of circumstances).
13 See e.g., Taylor v. Metzger, 152 N.J. 490 (1998)(finding
the use of one racist slur extreme and outrageous under the
circumstances).
34
we're not going to do them[,]" [and] "f___ [you] being diabetic
and having to stop for lunch.").
As stated above, the only
specific comment identified by Plaintiff in support of her
hostile work environment claim is Archie saying, “[s]orry we’re
not all special and can’t only work in the mornings[,]” (DSMF &
PRSMF at ¶ 107-108), and this Court is mindful that such
“‘offhand comments, and isolated incidents (unless extremely
serious)’ are not sufficient to sustain a hostile work
environment claim.”
Caver v. City of Trenton, 420 F.3d 243, 262
(3d Cir. 2005)(quoting Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998)).
That said, “the New Jersey Supreme Court has instructed
that ‘it is insufficient to assess incidents individually as if
each were hermetically sealed from the others.’”
See Pikowski,
2013 U.S. Dist. LEXIS 175193 at * 28 (citing Godfrey, 196 N.J.
at 196).
Therefore, this Court considers Archie’s comment in
conjunction with all of Plaintiff’s other allegations of
harassing conduct.
In doing so, this Court considers the
frequency of the alleged conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interfered with
Plaintiff’s work performance.
See Harris v. Forklift Sys. Inc.,
510 U.S. 17, 23 (1993).
35
The conduct alleged by Plaintiff is, in no way, physically
threatening.
Cf. Pikowski, 203 U.S. Dist. LEXIS 175193 at * 29
(denying summary judgment on disability hostile work environment
claim where plaintiff alleged, inter alia, that he was called
“retard” and “sped” on several occasions kicked in the
buttocks).
Moreover, with respect to some of her allegations,
Plaintiff has made admissions that undercut her contentions that
the complained of conduct was because of her disability – for
example, Plaintiff has admitted that she previously had problems
with her hours being reduced even before Archie joined the
store, (DSMF & PRSMF at ¶¶ 95 & 98), and that her hours
fluctuated according to the needs of Sears’ business.
¶ 4; PSMF at ¶ 8).
(DSMF at
Moreover, Plaintiff has presented no
evidence other than her unsupported allegation that she was
pulled off the schedule for any other reason other than the
pending return of her completed Certification Form by her
doctor.
Even, assuming, however, that the complained of conduct
would not have occurred but-for Plaintiff’s disability,
Plaintiff still fails to allege facts sufficient to demonstrate
that the complained of conduct altered the conditions of her
work environment and rendered it hostile and abusive.
The LAD
is not a guideline for workplace civility and “does not
guarantee employees a ‘perfect workplace free of annoyances and
36
colleagues [they] find[] disagreeable.’” Incorvati v. Best Buy
Co. Inc., No. 10-1930, 2010 U.S. Dist. LEXIS 122038, at *31
(D.N.J. Nov. 16, 2010)(quoting Lynch v. New Deal Delivery Serv.,
974 F. Supp. 441, 442 (D.N.J. 1997)).
While Plaintiff asserts
that Archie repeatedly asked her to climb a ladder, she does not
specifically recall how many times he asked, or to whom she
complained about it.
(See Pl.’s Dep. II: 149:1-14).
Without more, Plaintiff’s assertions that she was asked to
climb ladders, asked for medical certifications (when a review
of the prior certification from 2008 reveals the need for more
specifics), removing Plaintiff from the schedule, bald
assertions of “snippy” responses and being asked questions in a
manner that was alleged to take advantage of Plaintiff’s memory
issues do not constitute “severe conduct that alters the
conditions of one’s employment or creates an abusive
environment” and her hostile work environment claim shall be
dismissed.
See Invorvati, 2010 U.S. Dist. LEXIS 122038 at *33-
34 (dismissing plaintiff’s hostile work environment claim under
LAD where plaintiff alleged that he was ridiculed because of his
age, because he had suffered a heart attack, and where, on one
occasion, he was sent a picture of a wheel chair/motorized
scooter in a mocking manner); Connolly v. Mitsui O.S.K. Lines
(Am.), Inc., 2009 U.S. Dist. LEXIS 86195 at *24 (D.N.J. Sept.
21, 2009)(granting summary judgment on plaintiff’s hostile work
37
environment claim where plaintiff alleged that defendant sought
documentation of disability-related absences, that her time was
monitored closely, that she was denied an ergonomic keyboard and
finding that the conduct, even if all of it is related to her
disability, was not severe enough to create a hostile work
environment).
V.
Conclusion:
For the reasons discussed above, this Court will grant
summary judgment in favor of Defendants on all claims.
An
appropriate Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: May 21, 2014
38
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