DAVIS v. LOWE'S COMPANIES, INC. et al

Filing 32

OPINION FILED. Signed by Judge Noel L. Hillman on 12/17/14. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
DONALD DAVIS,
Plaintiff,

Civil No. 13-345 (NLH/JS)

v.

OPINION

LOWE’S HOME CENTERS, INC.,
et al.,
Defendants.
__________________________________
APPEARANCES:
Michael H. Berg, Esquire
Berg & Pearson, PC
59 North Broad Street
Woodbury, New Jersey 08096
Counsel for Plaintiff
Vito A. Gagliardi, Jr., Esquire
Kerri Ann Wright, Esquire
Raquel Sara Lord, Esquire
Porzio, Bromberg & Newman
100 Southgate Parkway
Morristown, New Jersey 07962
Counsel for Defendant Lowe’s Companies, Inc.
HILLMAN, District Judge
This is an employment discrimination action brought by
Plaintiff, Donald Davis, alleging that his former employer,
Defendant Lowe’s Companies, Inc., failed to appropriately
accommodate Plaintiff after he suffered a workplace injury.
Presently before the Court is the motion [Doc. No. 24] of
Defendant for summary judgment pursuant to Federal Rule of Civil
1

Procedure 56. 1

The Court has considered the submissions of the

parties and has decided this matter pursuant to Federal Rule of
Civil Procedure 78.
For the reasons that follow, Defendant’s motion for summary
judgment is denied.
I.

JURISDICTION
On October 18, 2012, Plaintiff filed a civil action in the

Superior Court of New Jersey, Law Division, Gloucester County,
alleging violations of the New Jersey Law Against
Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. (hereafter,
“NLJAD”).

Defendant removed the action to this Court on the

basis of diversity jurisdiction.

Plaintiff is a New Jersey

citizen, and Defendant is a North Carolina corporation with its
principal place of business in Mooresville, North Carolina.
(Not. of Removal ¶¶ 9, 10.)
$75,000.

(Id. ¶ 11.)

The amount in controversy exceeds

Accordingly, the Court exercises

jurisdiction over this matter pursuant to 28 U.S.C. § 1332.

1

Plaintiff initially named Fred Cassi, the manager of the Lowe’s
store in Mantua, New Jersey, as a defendant in this matter.
Plaintiff and Defendant stipulated to the dismissal of Mr. Cassi
as a party on or about December 27, 2012. (Not. of Removal ¶
4.) Plaintiff also named a number of fictitious defendants who
were never identified or served. Therefore, at this time,
Lowe’s is the only defendant in this action.
2

II.

BACKGROUND
A.

Plaintiff’s Employment Background

Prior to becoming employed by Defendant, Plaintiff worked
as a carpenter and a contractor.

(Pl.’s Supp. Statement of

Disputed Material Facts in Opp. to Def.’s Mot. for Summ. J.
(hereafter, “Pl.’s SOF”) ¶ 1; Def.’s Response to Pl.’s Supp.
Statement of Disputed Material Facts in Opp. to Def.’s Mot. for
Summ. J. (hereafter, “Def.’s Opp.”) ¶ 1.)

Plaintiff worked in

construction “practically his entire working life[,]” including
working as a self-employed sole proprietor performing home
improvement.

(Pl.’s SOF ¶ 2-3; Def.’s Opp. ¶ 2-3.)

As a sole

proprietor, Plaintiff replaced doors, fixed dry wall, repaired
leaks, and performed other types of home improvements. (Pl.’s
SOF ¶ 3; Def.’s Opp. ¶ 3.)
Plaintiff was hired by Defendant on or about September 13,
2008 as a Customer Service Associate in the Electrical
Department at the Mantua, New Jersey store.

(Def.’s Statement

of Undisputed Material Facts in Supp. of Mot. for Summ. J.
(hereafter, “Def.’s SOF”) ¶ 1; Pl.’s Opp. to Def.’s Statement of
Undisputed Material Facts (hereafter, “Pl.’s Opp.) ¶ 1.)
Plaintiff’s hourly rate of pay when he was hired was $14.20.
(Def.’s SOF ¶ 1; Pl.’s Opp. ¶ 1.)

In or about March 2009,

Plaintiff applied for and received a promotion to the position
3

of Plumbing Pro, with a commensurate raise in his hourly rate of
pay to $15.62.

(Def.’s SOF ¶ 3; Pl.’s Opp. ¶ 3.)

In or about January 2010, Plaintiff was again promoted,
having applied for and received a position as a Project
Specialist Exteriors (hereafter, “PSE”), with an increase in
hourly rate of pay to $16.26.

(Def.’s SOF ¶ 4; Pl.’s Opp. ¶ 4.)

As a PSE, Plaintiff was required to sell exterior products, such
as windows, doors, siding, roofs, and fencing.
Def.’s Opp. ¶ 8.)

(Pl.’s SOF ¶ 8;

Plaintiff also went to customers’ homes to

prepare estimates for the installation of such products as
windows, fencing, and roofing material.

(Pl.’s SOF ¶ 9; Def.’s

Opp. ¶ 9.)
The position of PSE was subsequently eliminated at the
Mantua store, at which time Plaintiff was transferred to the
position of Sales Specialist in the Flooring Department.
(Def.’s SOF ¶ 5; Pl.’s Opp. ¶ 5.) 2

2

There was no pay adjustment

The date on which Plaintiff was transferred to the Flooring
Department is unclear. Defendant contends that Plaintiff was
transferred in August 2011, and a Personnel Data Change Form
confirms that the effective date of transfer was August 6, 2011.
(Def.’s SOF ¶ 5; Cert. of Raquel S. Lord, Esq., Ex. F.)
Plaintiff’s injury, however, occurred on July 26, 2011. (Def.’s
SOF ¶ 15; Pl.’s Opp. ¶ 15.) The parties appear to agree that
Plaintiff had been assigned to the Flooring Department at the
time he was injured, so Plaintiff would have been transferred to
the Flooring Department at least as of July 26, 2011, even
though the paperwork indicates that the effective date of
transfer was August 2011.
4

associated with Plaintiff’s transfer.

(Def.’s SOF ¶ 5; Pl.’s

Opp. ¶ 5.)
B.

Plaintiff’s Workplace Injury

On or about July 26, 2011, Plaintiff injured his right
shoulder at work when he and another employee were lifting a box
that was approximately one foot off of the ground and weighed
approximately 150 pounds.
15, 16.)

(Def.’s SOF ¶¶ 15, 16; Pl.’s Opp. ¶¶

The store Human Resources Manager, Lori Weatherill,

completed a Worker’s Compensation Initial Injury Report for
Plaintiff and sent him to a worker’s compensation doctor.
(Def.’s SOF ¶ 17; Pl.’s Opp. ¶ 17.)

The worker’s compensation

doctors placed temporary restrictions on Plaintiff’s physical
activities.

(Def.’s SOF ¶ 18; Pl.’s Opp. ¶ 18.)

On August 30,

2011, Plaintiff had surgery on his shoulder and thereafter took
a leave of absence to recover.

(Def.’s SOF ¶ 19; Pl.’s Opp. ¶

19.)
Upon Plaintiff’s return to work, and due to his temporary
restrictions, Plaintiff was assigned to greet customers at the
front door.

(Def.’s SOF ¶ 20; Pl.’s Opp. ¶ 20.)

Plaintiff’s

title remained a Flooring Specialist at the same rate of pay.
(Def.’s SOF ¶ 20; Pl.’s Opp. ¶ 20.)

Plaintiff contends that in

addition to greeting customers, his duties included assignment
to various departments within the store, including the Flooring
Department.

(Pl.’s Opp. ¶ 20.)

Defendant disputes that
5

Plaintiff was assigned to various departments, but it is
undisputed that Plaintiff was permitted to walk around the store
and assist customers in various departments upon returning to
work after his surgery.

(Pl.’s SOF ¶ 52; Def.’s Opp. ¶ 52).

On or about March 21, 2012, Plaintiff reached maximum
medical improvement.

(Def.’s SOF ¶ 22; Pl.’s Opp. ¶ 22.)

At

that time, the restrictions on Plaintiff’s physical activity
were deemed to be permanent.
23.)

(Def.’s SOF ¶ 23; Pl.’s Opp. ¶

The parties stipulate that as of March 21, 2012,

Plaintiff’s work restrictions were as follows: “No lifting
greater than 10 pounds above chest level” and “No climbing.”
(Cert. of Raquel S. Lord, Esq. (hereafter, “Lord Cert.”), Ex. Y
¶ 9.)

On April 25, 2012, Plaintiff was further restricted to

the following: “No pushing, pulling, moving, lifting or carrying
greater than 50 pounds.”

(Id. ¶ 10.)

These work restrictions

remained unchanged from April 25, 2012 until the date of
Plaintiff’s separation from work with Defendant.
C.

(Id. ¶ 11.)

The Interactive Process

In late March 2012, Plaintiff met with Weatherill to
discuss the Americans With Disabilities Act (hereafter, “ADA”)
accommodation process.

(Def.’s SOF ¶ 24; Pl.’s Opp. ¶ 24.)

Ms.

Weatherill provided Plaintiff with an ADA Accommodation Request
form to complete.

(Def.’s SOF ¶ 26; Pl.’s Opp. ¶ 26.)

6

Plaintiff completed the ADA Accommodation Request form on March
28, 2012, stating as follows therein:
I had a tear of Rotator Cuff. After
surgery, I can’t lift my right arm and can’t
lift any more than 10 lbs. to chest. And
can not climb. I would like a job to
accommodate this.
(Lord Cert., Ex. K.)

Plaintiff also noted on the form, in

connection with a request for any additional information that
would be useful in processing the accommodation request, that he
still had “full use of left arm” and that he had been employed
by Defendant since September 13, 2008.

(Id.)

Weatherill then reached out to the Area Human Resources
Manager, Karen Ortley, to discuss accommodating Plaintiff’s
permanent restrictions.

(Def.’s SOF ¶ 29; Pl.’s Opp. ¶ 29.)

Ortley reviewed documentation relative to Plaintiff’s medical
condition and contacted Brenda Ricketts, a Lowe’s Accommodation
Specialist, in an effort to identify an accommodation for
Plaintiff.

(Def.’s SOF ¶¶ 30-31; Pl.’s SOF ¶¶ 30-31.)

Ortley

discussed with Weatherill various positions that were available
that would accommodate Plaintiff’s permanent restrictions.
(Def.’s SOF ¶ 32; Pl.’s SOF ¶ 32.)

These positions included

cashier and a Customer Service Associate (hereafter, “CSA”) at
the front desk.

(Def.’s SOF ¶ 34; Pl.’s Opp. ¶ 34.)

On May 30, 2012, Ortley instructed Weatherill to offer
Plaintiff the position of a CSA at the front desk because it had
7

a higher rate of pay than the cashier position.
34, 40; Pl.’s Opp. ¶¶ 34, 40; Lord Cert., Ex. M.)

(Def.’s SOF ¶¶
This

position, however, had a lesser pay rate than Plaintiff’s preinjury position as a Sales Specialist in the Flooring
Department.

(Def.’s SOF ¶ 49; Pl.’s Opp. ¶ 49.)

On or about June 2, 2012, Plaintiff met with Weatherill and
Store Manager Fred Cassi, at which time he was offered the
position as a CSA at the front desk.
Opp. ¶ 41; Lord Cert., Ex. O.)

(Def.’s SOF ¶ 41; Pl.’s

Plaintiff was advised that the

CSA position would accommodate his physical restrictions.
(Def.’s SOF ¶ 43; Pl.’s Opp. ¶ 43.)

Plaintiff was provided with

an “Interactive Process Form,” which described the accommodation
offered:
Lowe’s is offering you the position as
Customer Service Desk Associate. Lowe’s
agrees to accommodate your request with no
climbing, no lifting more than 50 lbs and no
lifting more than 10 lbs above chest level.”
(Lord Cert., Ex. N.)

Plaintiff wrote on the form that he could

not accept the position “because of the drop in pay[,]” and
noted that if a position as a PSE opened he would like to take
that position.

(Id.)

Cassi suggested that Plaintiff think

about the new position before making a decision.
45; Pl.’s Opp. ¶ 45.)

(Def.’s SOF ¶

After the meeting, Weatherill completed

“Interactive Meeting Notes,” in which she noted that Plaintiff

8

had suggested the PSE position but such position did not meet
his accommodations.

(Lord Cert., Ex. O.)

Weatherill and Cassi then met with Plaintiff on June 5,
2012.

(Def.’s SOF ¶ 46; Pl.’s SOF ¶ 46.)

The “Interactive

Meeting Notes” completed by Weatherill indicate that the parties
again discussed the CSA front desk position but Plaintiff would
not accept the position because he could not afford to live on
the reduced salary.

(Lord Cert., Ex. P.)

to continue his employment with Defendant.

Plaintiff decided not
(Def.’s SOF ¶ 48;

Pl.’s Opp. ¶ 48.)
On October 18, 2012, Plaintiff filed suit against Defendant
alleging that Defendant failed to provide a reasonable
accommodation for his workplace restrictions and that Defendant
failed to engage in the interactive process in an attempt to
provide a reasonable accommodation, in violation of the NJLAD.
Plaintiff thereafter filed an amended complaint and a second
amended complaint.

Defendant now seeks summary judgment on both

counts of Plaintiff’s second amended complaint.

III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
9

affidavits, if any,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)
(citing Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

A fact is

“material” if, under the governing substantive law, a dispute
about the fact might affect the outcome of the suit.

Id.

“In

considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’”

Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d

Cir. 2004)(citing Anderson, 477 U.S. at 255, 106 S. Ct. 2505).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323, 106 S. Ct. 2548 (“[A] party seeking
summary judgment 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
10

with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”); see also
Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir.
2001) (“Although the initial burden is on the summary judgment
movant to show the absence of a genuine issue of material fact,
‘the burden on the moving party may be discharged by ‘showing’ - that is, pointing out to the district court -- that there is
an absence of evidence to support the nonmoving party’s case’
when the nonmoving party bears the ultimate burden of
proof.”)(citing Celotex, 477 U.S. at 325, 106 S. Ct. 2548).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324, 106 S. Ct. 2548.

Celotex, 477

A “party opposing summary

judgment ‘may not rest upon the mere allegations or denials of
the . . . pleading[s.]’”
232 (3d Cir. 2001).

Saldana v. Kmart Corp., 260 F.3d 228,

For “the non-moving party[ ] to prevail,

[that party] must ‘make a showing sufficient to establish the
existence of [every] element essential to that party’s case, and
on which that party will bear the burden of proof at trial.’”
Cooper v. Sniezek, 418 F. App’x 56, 58 (3d Cir. 2011) (citing
Celotex, 477 U.S. at 322, 106 S. Ct. 2548).

Thus, to withstand

a properly supported motion for summary judgment, the nonmoving
party must identify specific facts and affirmative evidence that
11

contradict those offered by the moving party.

Anderson, 477

U.S. at 257, 106 S. Ct. 2505.
B. Analysis
1. Disparate Treatment Claim
In analyzing a claim of disparate treatment under the
NJLAD, New Jersey courts utilize the burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

Gerety v. Atl. City

Hilton Casino Resort, 184 N.J. 391, 399, 877 A.2d 1233 (N.J.
2005).

To prove a prima facie case of disability

discrimination, a plaintiff must demonstrate that he:
(1)
(2)
(3)
(4)

is disabled or is perceived to have a
disability;
was qualified for the position;
was subjected to an adverse employment
action; and
the employer sought to, or did fill the
position with a similarly-qualified
person.

Victor v. State, 203 N.J. 383, 409-10, 4 A.3d 126 (N.J. 2010);
Gerety, 184 N.J. at 399, 877 A.2d 1233.

Once the plaintiff

satisfies his burden, the employer then must prove a legitimate,
non-discriminatory reason for the employment action.
184 N.J. at 399, 877 A.2d 1233.

Gerety,

The plaintiff can respond by

showing that the reason proffered by the employer was merely
pretext for the discrimination.

Id.

12

a.

Qualifications for Position of Flooring
Specialist

Defendant moves for summary judgment on the basis that
Plaintiff fails to make out the second prong of the McDonnell
Douglas standard, arguing that Plaintiff was not able to perform
the job given his permanent physical restrictions.

Resolution

of the second prong “often turns on what are the ‘essential
functions of the job.’”

Melton v. Resorts Int’l Hotel, Inc.,

Civ. A. No. 11-6449, 2014 WL 5341929, at *4 (D.N.J. Oct. 20,
2014).

“Essential functions of a position do not include

marginal functions.”

Id.

Plaintiff contends that despite his permanent physical
restrictions, he could still perform the essential functions of
his job as Sales Specialist in the Flooring Department, which
included selling a flooring job, showing samples of carpet and
flooring product, sending contractors to customers’ homes to
take measurements, and essentially “selling the job.”
SOF ¶ 13.)

(Pl.’s

Defendant does not deny that these are the primary

duties of a Sales Specialist in the Flooring Department, but
also considers lifting and moving products, including loading
products into a customer’s cart, to be part of the selling
process.

(Def.’s Opp. ¶ 13.)

Defendant argues that Plaintiff

could not lift and move products into a customer’s cart or

13

perform other tasks in the Flooring Department, and was
therefore unable to perform the essential functions of the job.
For the reasons that follow, the Court concludes that there
exists a genuine factual dispute on the issue of whether
Plaintiff could conduct the essential functions of his job in
the Flooring Department.
not in dispute.

Plaintiff’s physical limitations are

Nor is there a dispute that Plaintiff could

have assisted customers in the Flooring Department at least in
part, in that he could have provided product information, used
the computer, placed orders, and answered questions.
e.g., Lord Cert., Ex. T at 37:6-15.)

(See,

The disputed issues are

whether lifting and climbing a ladder were essential functions
to the position of Sales Specialist in the Flooring Department
and, if so, whether Plaintiff could perform these essential
functions given his permanent physical restrictions.
i.

Lifting More than Fifty Pounds

As a starting point, the Court looks to Defendant’s written
job description for the position of Sales Specialist.

This job

description is not specific to Flooring Specialists but applies
to Sales Specialists in all departments.
G.)

(See Lord Cert., Ex.

The description provides that a Sales Specialist is

“[r]esponsible for providing superior customer service,
achieving sales budgets in assigned area [and] merchandise
maintenance,” “[g]reet[ing] and acknowledg[ing] all customers in
14

a friendly, professional manner and provid[ing] quick,
responsive customer service” and being “[r]esponsible for all
other duties as assigned.”

(Cert. of Raquel S. Lord, Esq.

(hereafter, “Lord Cert.”), Ex. G.)

Furthermore, the position of

Sales Specialist has certain physical requirements which
include, inter alia, the following: (1) an ability to “move
throughout all areas of the store;” (2) an ability to move
objects “up to and exceeding 200 pounds with reasonable
accommodations[;]” and (3) an ability to “stand, bend, stoop,
kneel, reach, twist, lift, push, pull, climb, balance, crouch,
handle and move items weighing up to 50 pounds without
assistance[.]”

(Id.) 3

The Court also looks to the actual work experience of
Defendant’s employees in considering the essential functions of
the job.

See Sturm v. UAL Corp., No. Civ. A. 98-264, 2000 WL

3

In addition to Sales Specialists, Defendant also employs
Customer Service Associates (hereafter, “CSAs”) and department
managers. The written description for the position of Sales
Specialist is different from that of a “CSA Sales Floor.”
Although both positions contain identical physical job
requirements, the general job description of a “CSA Sales Floor”
employee is to “[p]rovide superior customer service by assisting
customers in selection, demonstration and purchase of product
including special orders and installations[,]” to “[k]eep
shelves fully stocked, fronted according to planogram and
correctly priced[,]” to “[g]reet and acknowledge all customers
in a friendly, professional manner and provide quick, responsive
customer service[,]” and to be “[r]esponsible for all other
duties as assigned.” (Cert. of Michael H. Berg, Esq. in Opp. to
Def.’s Mot. for Summ. J., Ex. 21.)
15

1300396, at *5 (D.N.J. Sept. 5, 2000).

The testimony of several

of Defendant’s employees suggests that lifting products into a
customer’s cart and, if necessary, into their car, is part of
the sales experience.

In this regard, the store manager, Fred

Cassi, testified that customers must be assisted with lifting.
(Lord. Cert., Ex. S at 31:8-12.)

The store Human Resources

Manager, Lori Weatherill, testified that employees are “there to
service the customer from the beginning of the project to the
end of the project which is cutting carpet, lifting tile,
lifting hardwood floor.”

(Lord Cert., Ex. U at 65:1-6.)

The flooring department manager, Holly Nieradka, testified
that the main responsibility in the flooring department was to
“take care of the customers,” by “providing knowledge to help
them purchase what they need for their project, helping them
load their product on their cart, [and] if need be taking them
up front” and helping them load the product into their cars.
(Cert. of Michael H. Berg, Esq. in Opp. to Def.’s Mot. for Summ.
J. (hereafter, “Berg Cert.”), Ex. 5 at 34:6-21.)

Even Plaintiff

testified that when a customer seeks to purchase carpet or tile,
the salesperson would set the product on the cart for the
customer.

(Lord Cert., Ex. R at 86:21-25, 87:13-16.)

Given the foregoing testimony, it appears there is no
genuine dispute that lifting products onto a customer’s cart
and, if necessary, into the customer’s car is an essential
16

function of employees in the Flooring Department.

However, the

extent of lifting required to be able to adequately assist
customers is not so clear.
Defendant argues that “heavy” lifting was an essential
function of the Flooring Specialist position.

(Def.’s Br. in

Supp. of its Mot. for Summ. J. (hereafter, “Def.’s Br.”) 8.)
Defendant specifically contends that the Flooring Department is
“one of the most lifting-intensive departments in a Lowe’s
store” because the “product in the Flooring Department is very
heavy.”

(Cert. of Fredrick J. Cassi in Supp. of Def.’s Mot. for

Summ. J. (hereafter, “Cassi Cert.”) ¶ 5.)

Products in the

Flooring Department include porcelain and ceramic tile, bags of
grout, carpet, laminate, vinyl, hardwood, and other forms of
flooring.

(Def.’s SOF ¶ 9; Pl.’s Opp. ¶ 9.)

Defendant cites to a report by Plaintiff’s physical
therapist, in which he wrote that Plaintiff’s job “requires
loading carts, stocking shelves, lifting up to 100 to 150 lbs,
and significant overhead reaching and lifting.”
Ex. W.)

(Lord Cert.,

Defendant similarly cites to a letter from Plaintiff’s

orthopedist, who wrote that Plaintiff’s job “was very physical.
He was lifting, carrying and climbing.”

(Lord Cert., Ex. X.)

Defendant argues that these letters merely recount Plaintiff’s
own description of his job requirements, and thus they

17

purportedly demonstrate Plaintiff’s admission that heavy lifting
is an essential function of the job.

(Def.’s Br. 7-8.)

Plaintiff, however, has provided the Nieradka’s testimony 4
which does not support Defendant’s argument that lifting
products weighing more than fifty pounds is required in the
Flooring Department.

Although Nieradka states in a

certification that “[h]eavy lifting is an essential function of
the Flooring Specialist position,” she testified at her
deposition that she can only lift fifty pounds as high as her
waist.

(Cert. of Holly Nieradka in Supp. of Def.’s Mot. for

Summ. J. ¶ 5; Berg Cert., Ex. 5 at 47:18-21.)

She further

testified that there were items in the department that she was
unable to lift by herself.

(Id. at 35:5-7.)

These items

included boxes of tiles measuring eighteen inches square and
twenty-four inches square, which Nieradka estimated to weigh
more than fifty pounds.

(Id. at 33:21-25, 35:8-12.)

Nieradka

also testified that she was only able to lift boxes of twelve by
twelve inch tiles, which she estimated to weigh approximately
fifty pounds, three feet off of the ground.
36:15-25.)

(Id. at 33:19-20,

She admitted that she was unable to lift hardwood

flooring onto a customer’s cart if it was on a bottom shelf.

4

Although Nieradka was a department manager, she testified that
her duties were the same as those of a sales specialist and
additionally included clerical duties. (Berg Cert., Ex. 5 at
34:17-25.)
18

(Id. at 43:4-10.)

When Nieradka was unable to lift a product by

herself, she would seek assistance from another employee working
nearby, or by calling on the phone for an employee to help.
(Id. at 35:24-36:14.)
In light of Nieradka’s testimony, as well as the written
job description for the position of Sales Specialist, there is a
genuine dispute as to whether the ability to lift products
weighing more than fifty pounds is an essential function of a
Flooring Department employee.

Although working in the Flooring

Department may require “heavy” lifting, Defendant does not
provide an objective measure of the lifting requirement for that
department.
pounds.”

“Heavy” does not necessarily mean “more than fifty

Because Nieradka stated that “heavy” lifting is an

essential function of a Flooring Department employee, but she
requires assistance lifting products weighing more than fifty
pounds, then it would appear that “heavy” lifting may not
require the ability to lift more than fifty pounds.

The written

job description supports this conclusion, as it states that an
employee must be able to move “items weighing up to 50 pounds
without assistance.”

(Lord Cert., Ex. G.)

Furthermore, the record makes clear that there were
products in the Flooring Department that Nieradka was unable to
lift without assistance, yet there appears to be no question
that she was able to perform the “essential” functions of the
19

job.

Defendant notes that Nieradka could lift bags of mortar

and rolls of carpet, presumably in an effort to demonstrate that
she could lift items weighing more than fifty pounds even though
Defendant does not provide evidence of the weight of these
items.

(Def.’s Reply Br. in Further Supp. of its Mot. for Summ.

J. (hereafter, “Def.’s Reply Br.”) 8-9.)

But regardless of

whether Nieradka could lift more than fifty pounds, it is
undisputed that there were products in the department that she
could not lift, and she sought assistance from other employees
whenever necessary. 5

Therefore, although the Flooring Department

may contain heavier products than other departments, there is a
question of fact as to whether lifting more than fifty pounds,
without assistance, is an essential part of providing assistance
to customers in that department.

5

The extent of lifting that is

Defendant attempts to establish that Plaintiff could not rely
on assistance from other employees to help with lifting, stating
that the store in Mantua was a “low volume” store and that
Plaintiff was sometimes the only employee in his department.
(Def.’s SOF ¶ 14.) However, Cassi testified that “generally”
there are two employees in the Flooring Department. (Lord
Cert., Ex. S at 34:3-8.) Moreover, even on those occasions when
there was only one employee in the Flooring Department, any
employee could seek assistance from associates in other
departments to help with heavier items as attested to by
Nieradka and another employee, Allison Davis. (Berg Cert., Ex.
5 at 35:24-36:14; Supp. Cert. of Raquel S. Lord, Esq., Ex. A at
22:17-23:5.) In light of this testimony, even assuming
Plaintiff was the only employee in the Flooring Department, this
fact does not demonstrate that Plaintiff would have been unable
to obtain assistance from another Lowe’s employee to assist a
customer.
20

“essential” to a Flooring Specialist position will have to be
resolved by a jury. 6
ii.

Lifting Above Chest Height and
Climbing

Plaintiff had other physical restrictions, because he could
not lift anything more than ten pounds above chest height nor
could he climb a ladder.

As set forth below, there is a genuine

issue of fact as to whether climbing a ladder and lifting
products weighing more than ten pounds above chest height were
“essential” to the Flooring Specialist position.
There is no dispute that products were stored above chest
height.

Defendant contends that these products would need to be

brought down during the course of a sale if a customer wanted to
purchase them.

(Def.’s Br. 9.)

In support of this assertion,

Defendant provided the Certification of Cassi, the store
manager, in which he states that assisting a customer “routinely
requires reaching up to pull down from shelves items weighing
more than 10 pounds.”

(Cassi Cert. ¶ 7.)

6

Defendant also

The Court notes Defendant’s argument that Plaintiff reported to
his treating physician that he lifted heavy items prior to his
injury. (Def.’s Br. 7). It is possible that Plaintiff chose to
lift heavy items by himself rather than seek assistance, but his
preference does not demonstrate that heavy lifting is an
essential function of the job. Indeed, if Nieradka needed
assistance with items weighing more than fifty pounds, a jury
may conclude that lifting items heavier than fifty pounds is not
an essential function of the job.
21

contends that products would need to be brought down at night so
that the shelves would be restocked for the following day, which
the parties refer to as “zoning.”

(Def.’s Br. 9.)

With respect to assisting a customer, it is undisputed that
customers must be assisted with placing products in their carts,
which would presumably include assistance with products located
above chest level.

The record, however, contains evidence that

a Flooring Specialist would not have to lift products above
chest height for the purpose of assisting customers.

Both

Plaintiff and Nieradka testified that machines were available to
assist with moving product down from top stock.

Nieradka

specifically testified that an employee could use machinery or a
ladder to put the product up without going above his or her
shoulder.

(Berg Cert., Ex. 5 at 32:10-13.)

She also testified

that if products were on the top shelf, she would bring the
product down with equipment.
44:13-17.)

(Berg Cert., Ex. 5 at 32:10-23,

Plaintiff similarly testified that when products

needed to be brought down from the top shelves, he would use a
small forklift called a “reach truck.”
85:11-21.)

(Lord Cert., Ex. R at

The facts do not indisputably establish that a Sales

Specialist in the Flooring Department would have been required

22

to climb a ladder or lift products above chest level for the
purpose of assisting customers. 7
A Flooring Specialist was, in addition to assisting
customers, required to do “zoning” tasks, which included pulling
“heavy” items down from top shelves and placing them on lower
shelves, as well as “front and facing” the product.
¶ 11.)

(Def.’s SOF

However, the record demonstrates that machines were

available to assist with these tasks, such that Plaintiff would
not have been required to climb a ladder or lift heavy products

7

Defendant submitted a Supplemental Certification from Cassi in
which he states that “Lowe’s prefers not to have associates
using equipment/machinery during the day if it can be avoided,
to prevent injuries to customers.” (Supp. Cert. of Fredrick J.
Cassi in Supp. of Def.’s Mot. for Summ. J. (hereafter, “Supp.
Cassi Cert.”) ¶ 4.) Cassi also states that “there is equipment
that can be used for product on shelves 8 feet high and above,
but this does not do away with the need for associates to reach
above their shoulders/heads for product located under 8 feet.”
(Id. ¶ 5.) This evidence is contrary to the testimony of
Nieradka and Plaintiff, both of whom testified that an employee
would not have to lift above shoulder level. (Berg Cert., Ex. 5
at 32:3-13; Lord Cert., Ex. R at 112:17-18, 138:8-9.) The facts
thus remain disputed and cannot be resolved on summary judgment.
In addition, Cassi states that machines do not alleviate the
need to lift products because products must be loaded onto the
machine or unloaded into a cart by hand. (Supp. Cassi Cert. ¶¶
6-8.) Cassi does not state whether the products on the top
shelf weigh more than fifty pounds. Further, given the Court’s
finding above that there are questions of fact about the extent
of “heavy” lifting that is “essential” to the Flooring
Specialist position, the Court cannot conclude from the record
that an ability to move products weighing more than fifty pounds
from the top stock onto machines is an essential element of the
job.
23

above chest level.

(See, e.g., Lord Cert., Ex. R at 85:5-21;

Berg Cert., Ex. 5 at 45:4-7.)
Defendant also employed Customer Service Associates, whose
written job description required them to “[k]eep shelves fully
stocked, fronted according to planogram and correctly priced.”
(Berg Cert., Ex. 21.)

The Court acknowledges the testimony of

various employees who all indicated that the duties of employees
-- whether CSAs, Sales Specialists, or department managers -were the same irrespective of job title, but the written job
description makes clear that keeping shelves stocked is a
function of CSAs rather than Sales Specialists.

This

discrepancy in the written job descriptions raises a question of
fact as to whether the “zoning” tasks are essential to a
Flooring Specialist position; indeed, if they were so essential
one is left to question why these tasks were written in the job
description for CSAs but not Sales Specialists.
The foregoing evidence demonstrates that disputed facts
remain concerning the “essential” functions of the Flooring
Specialist position and whether Plaintiff was able to perform
the “essential” functions of that position in light of his
disability.

24

b.

Plaintiff Suffered an Adverse
Employment Decision

Defendant also challenges the third prong of Plaintiff’s
prima facie case of discrimination by arguing that Plaintiff was
not constructively discharged.

(Def.’s Br. 13.)

Defendant

asserts that Plaintiff, to succeed on his claim, must
demonstrate that the conditions of his employment were “so
intolerable” that a reasonable person subject to them would
resign.

(Id.)

According to Defendant, Plaintiff cannot satisfy

this burden because the record demonstrates that Defendant
engaged in the interactive process and offered Plaintiff a
reasonable accommodation as a CSA at the front desk, and that
Plaintiff unreasonably quit his job despite needing the salary
and health benefits that it provided.

(Id.)

The term “adverse employment action” has been broadly
defined to include not only readily quantifiable losses such as
loss or reduction of pay or monetary benefits, but other
consequences adverse to the employee.

Mandel v. M & Q Packaging

Corp., 706 F.3d 157, 169-70 (3d Cir. 2010)( Third Circuit
identified objective factors indicative of constructive
discharge, including demotion or reduction in pay or benefits,
involuntary transfer to less desirable position, and alteration
of job responsibilities).

The Court finds that Plaintiff

suffered an “adverse employment action” here because he was

25

offered a job that paid less per hour than he had been paid as a
Flooring Specialist.
c.

Defendant Fails to Offer a NonDiscriminatory Reason for Moving
Plaintiff to a Position as a CSA at the
Front Desk

Having found that there are sufficient questions of fact as
to the “essential” functions of a Flooring Specialist and
whether Plaintiff could perform such functions, and having
concluded that Plaintiff suffered an “adverse employment
action,” 8 the Court next turns to whether Defendant had a
legitimate, non-discriminatory reason for moving Plaintiff from
the Flooring Department to the front desk position.

Defendant

does not dispute that Plaintiff was moved because of his
permanent physical restrictions.

This is not a case where there

were other reasons that Plaintiff was demoted, such as unexcused
absences, insubordination, or poor job performance.

Defendant

argues that its action was not discriminatory, though, because
Plaintiff was unable to perform the essential functions of the
Flooring Specialist position.

8

As to the fourth factor of a prima facie case of
discrimination, neither party addresses whether Defendant sought
to, or did fill the position with a similarly-qualified person.
This element does not appear to be in dispute. Accordingly, the
Court concludes that Plaintiff has met his initial burden under
McDonnell Douglas, and the burden thus shifts to Defendant.
26

As the Court already concluded, there are questions of fact
concerning the essential functions of the Flooring Specialist
position and whether Plaintiff could have performed the
essential functions of the position.

Therefore, at this time,

the Court cannot find that Defendant’s actions were not
discriminatory.

Indeed, if a jury determines that Plaintiff

could have performed the essential functions of the job, and
Defendant removed Plaintiff from his position as a Flooring
Specialist based on his physical condition, then Defendant’s
actions would have been discriminatory.

Given the factual

disputes in this case, the Court at this time cannot grant
judgment as a matter of law in favor of Defendant on Count One
of the Second Amended Complaint.
2.

Failure to Accommodate Claim

Even if Plaintiff was unable to perform the essential
functions of a Flooring Specialist, there remains a dispute of
fact as to whether Defendant engaged in the interactive process
in good faith in attempting to find a reasonable accommodation
for Plaintiff’s disability.
In order to prevail on a failure to accommodate claim under
the NJLAD, a plaintiff must establish four elements:
(1)
(2)

he was disabled and his employer knew
it;
he requested an accommodation or
assistance;

27

(3)
(4)

his employer did not make a good faith
effort to assist; and
he could have been reasonably
accommodated.

Armstrong v. Burdette Tomlin Mem. Hosp., 438 F.3d 240, 246 (3d
Cir. 2006) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d
296, 317–320 (3d Cir. 1999); Tynan v. Vicinage 13, 351 N.J.
Super. 385, 798 A.2d 648, 657, 659 (2002)).

When an employee

requests an accommodation for his disability, the employer has a
responsibility “to ‘engage the employee in the interactive
process of finding accommodations.’”
F.3d at 319).

Id. (quoting Taylor, 184

“If an ‘employee could have been reasonably

accommodated but for the employer’s lack of good faith,’ the
employee will win on his failure to accommodate claim.”

Id.

(quoting Taylor, 184 F.3d at 319-20).
Defendant argues that Plaintiff’s failure to accommodate
claim fails under the third prong, because Defendant purportedly
engaged in the interactive process in good faith.
14.)

(Def.’s Br.

Plaintiff contends that Defendant demonstrated a lack of

good faith in finding an accommodation for Plaintiff.

Plaintiff

specifically argues that the process utilized by Defendant in
determining an accommodation was not “interactive,” because
Defendant offered only one option, refused to consider other
positions when Plaintiff rejected the one position offered to
him, and declined to engage in back-and-forth discussions to

28

come to a reasonable accommodation.

(Pl.’s Br. in Opp. to

Def.s’ Mot. for Summ. J. (hereafter, “Pl.’s Br.”) 6-11.) 9
Plaintiff asserts that he could have been reasonably
accommodated had Defendant engaged in the interactive process in
good faith.

(Id. at 11-20.)

The interactive process requires that employers make a good
faith effort to seek accommodations.

Taylor, 184 F.3d at 317.

“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 employee's request, and offer and discuss
available alternatives when the request is too burdensome.”

Id.

In this case, the Court finds a dispute of fact concerning
Defendant’s good faith efforts to engage in the interactive
process.

The Court recognizes that Defendant accommodated

Plaintiff temporarily following his injury, but once Plaintiff
reached maximum medical improvement Defendant may not have
engaged in the interactive process in good faith.

Based on the

evidence of record, Plaintiff’s only involvement in the

9

Plaintiff also argues that Weatherill improperly restricted
Plaintiff’s response on the ADA Accommodation form to address
accommodations for the Flooring Specialist position, which
limited the interactive process. (Pl.’s Br. 4-5.)
29

interactive process was his completion of the ADA Accommodation
Request Form.

Ortley, the Area Human Resources Manager, was

provided paperwork from the store Human Resources Manager, and
never spoke directly with Plaintiff or sought input from
Weatherill or Cassi concerning possible accommodations.

(See

Lord Cert., Ex. T at 33:17-22, Ex. U at 77:18-78:5; Lord Cert.,
Ex. S at 19:2-9.)
When the CSA position was offered to Plaintiff, and he
rejected it due to the decrease in pay, there was no further
discussion of the matter.

In this regard, when Weatherill

relayed to Ortley that Plaintiff could not afford to take a
paycut, she was “directed that that was the position that we had
that would accommodate him,” and that there was no consideration
of any other alternatives at that time.

(Lord Cert., Ex. T at

21:11-14, Ex. U at 69:14-17, 70:10-13.)

There is no evidence

that Defendant ever asked Plaintiff what accommodations he was
seeking, no evidence that Defendant ever considered Plaintiff’s
request to work in a different department, and no evidence of
any effort to discuss available alternatives once the CSA front
desk position was offered and rejected.

Viewing the evidence in

a light most favorable to Plaintiff, the Court cannot conclude
that Defendant’s unilateral ultimatum constituted a good faith
effort to engage in the interactive process.

30

Even where an employer fails to engage in the interactive
process to find an accommodation, a plaintiff must nonetheless
identify a specific accommodation that could have been made.
Although the plaintiff need not identify a specific
accommodation at the time he requests assistance from his
employer, in litigation he has the burden of proving that a
reasonable accommodation existed.

Donahue v. Consol. Rail

Corp., 224 F.3d 226, 234-35 (3d Cir. 2000); Sinclair v. Domb
Lighting & Elec. Supply Co., No. A-4903-07T2, 2009 WL 1118813,
at *7 (N.J. Super. Ct. App. Div. Apr. 28, 2009).

As explained

in Sinclair, a plaintiff has “litigation tools available to him,
including discovery from the employer and the assistance of
counsel, to investigate facts and the law.

Through those tools,

the employee can and should determine what the employer could
have done to accommodate his specific needs.”

Id.

Plaintiff submits a listing of jobs that were posted for
the Mantua store at the time Defendant was considering
accommodations for Plaintiff’s disability.

Plaintiff notes that

there was an open position for a Sales Specialist in the Cabinet
Department between March 26, 2012 and July 9, 2012. 10 (Berg
Cert., Ex. 19.)

Defendant’s area Human Resources manager,

10

Plaintiff completed the ADA Accommodation Request Form on
March 28, 2012 and was offered the CSA front desk position on
June 2, 2012.
31

Ortley, testified generally that she considered the positions
available in the store that would accommodate Plaintiff’s
lifting restrictions (Lord Cert., Ex. T at 20:5-13), but she did
not specifically identify each position that was considered and
the reasons Plaintiff did not qualify for those positions.
Defendant, with its Reply Brief, submits a Certification of
Ortley in which she states that Plaintiff was not qualified for
the position in the Cabinet Department because he did not have
“the necessary background experience in kitchen design” or the
software program used to design kitchens for customers.
of Karen Ortley ¶¶ 3-4, May 15, 2014.)

(Cert.

Ortley did not recall

ever “hiring or promoting” an individual to the position of
Cabinet Specialist who did not “already have a solid design
background.”

(Id. ¶ 5.)

Ortley’s certification does not resolve a number of
questions that are material to a determination of whether
Plaintiff could have been accommodated.

The Court first notes

that it is not clear that Plaintiff was ever specifically
considered for the Cabinet department position.

At her

deposition, Ortley testified that she considered the CSA front
desk position and a cashier position for Plaintiff as an
accommodation, and that she did not believe there were other
positions available that would accommodate Plaintiff’s

32

restrictions.

(Lord Cert., Ex. T at 20:14-19.) 11

It appears

that Ortley at first considered only the cashier position, based
on her experience that another employee previously had a lifting
restriction and had been offered a cashier position to
accommodate the disability.

(Id. at 20:5-10.)

When Defendant’s

Accommodation Specialist, Brenda Ricketts, advised Ortley to try
to find a position with a higher salary, Ortley at that time
determined that she would offer the CSA front desk position.
(Id. at 25:8-17.)

Ortley notably never testified that Plaintiff

was considered for the Cabinet position but was rejected due to
a lack of qualifications.

Additionally, although Ortley

purportedly spoke with Weatherill about available positions,
Weatherill did not know whether Plaintiff had ever been
considered for any Sales Specialist positions.

(Lord Cert., Ex.

U. at 67:2-6.)
Moreover, although Ortley testified that she personally
never hired or promoted someone in the Cabinet Department who
did not have a background in design, her testimony does not make
clear that she is the individual in charge of hiring and

11

Defendant states in its reply brief that Ortley “looked at the
available Sales Specialist positions at the time of the
interactive process . . . and determined that Plaintiff was not
qualified for the open lateral positions, either due to his
inability to lift or his lack of background experience[.]”
(Def.’s Reply Br. 2-3.) The evidence of record does not support
this assertion as discussed infra.
33

determining whether an applicant is qualified for a particular
position.

Therefore, while she may not have hired an employee

for the Cabinet Department who did not have a background in
design, this evidence does not foreclose the possibility that
other personnel might have hired someone for the Cabinet
department who did not have a background in kitchen design. 12
The Court also notes that Plaintiff has presented evidence
that he has a background in kitchen design.

In opposition to

summary judgment, Plaintiff submits a certification in which he
states that he “assisted with designing and remodeling kitchens,
and installed hundreds of kitchens, including kitchen cabinets.”
(Berg Cert., Ex. 7 ¶ 29.)

Defendant contends that Plaintiff’s

statement concerning his kitchen design experience is not worthy
of credence.

(Def.’s Reply Br. 5.)

Defendant cites to

Plaintiff’s deposition testimony, wherein he described his prior

12

In discussing the procedure by which he was hired, Plaintiff
testified that he met with a sales manager named Mike Deal, a
human resources manager named Mary, and Cassi. (Lord Cert., Ex.
R at 47:1-48:7, 49:9-17.) According to Plaintiff, Cassi “seemed
to be impressed” with Plaintiff’s experience and offered
Plaintiff a job the same day. (Id. at 49:11-15.) Notably,
Ortley was the Area HR Manager at the time, and she testified
that her duties were “overall HR functions of 19 stores.” (Lord
Cert., Ex. T at 10:10-14.) Based on these facts, and construing
all inferences in favor of Plaintiff, the Court cannot conclude
that Ortley was responsible for determining the qualifications
of job applicants. As such, her testimony that she did not hire
applicants who lacked a background in kitchen design does not
resolve the disputed issue of whether Plaintiff was qualified to
perform the position of Sales Specialist in the Cabinet
department.
34

experience as “replacing doors, fixing drywall leaks, that kind
of stuff.”

(Lord Cert., Ex. R at 27:1-4.)

Defendant argues

that Plaintiff never identified experience with kitchen design
in his deposition, which purportedly demonstrates that Plaintiff
was not qualified to work in the Cabinet department.

(Def.’s

Reply Br. 4-5.)
Under the “sham affidavit” doctrine, a party may not create
an issue of fact to overcome summary judgment by filing an
affidavit contrary to his prior sworn testimony, without
offering a plausible explanation for that conflict.
Chase, 392 F.3d 609, 624 (3d Cir. 2004).

Baer v.

In this case,

Plaintiff's deposition testimony and affidavit are not at odds
and can be construed together.

Plaintiff’s failure to identify

kitchen design at his deposition does not mean that he did not
have experience in this area.

Indeed, Plaintiff did not testify

that his prior experience included electrical work, plumbing,
exteriors, or flooring, but Plaintiff clearly had sufficient
knowledge of these areas since Defendant assigned him to these
departments during the course of Plaintiff’s employment with
Lowe’s.

The issue to which Defendant points is more properly

characterized as a discrepancy in Plaintiff's testimony, which
bears on Plaintiff’s credibility and is a matter properly
reserved for cross-examination.

35

The Court finds that there is genuine dispute of fact as
to whether Plaintiff was qualified for the Cabinet position.
Given Plaintiff’s background as a general contractor and his
apparent knowledge of numerous areas of home improvement, and
construing the evidence in a manner favorable to Plaintiff, the
Court is unable to determine that Plaintiff was not qualified
for a position in the Cabinet department. 13

As such, the Court

cannot conclude as a matter of law that Plaintiff could not have
been reasonably accommodated by transferring him to the position
of Sales Specialist in the Cabinet department.

The Court will l

deny Defendant’s motion for summary judgment on Plaintiff’s
claim for failing to engage in the interactive process in good
faith under the NJLAD.

13

There is also an issue as to whether Plaintiff could have
learned the computer program utilized by Defendant to design
kitchens. Sharon Rubino, who works in the Cabinet department,
testified that anyone could learn the computer program with
proper training. (Berg Cert., Ex. 6 at 61:18-24.) Therefore,
it does not appear Plaintiff’s lack of experience with the
computer program would have been an impediment to his ability to
work in the Cabinet department.
36

IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary

judgment will be denied.
An Order will be entered consistent with this Opinion.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: December 17, 2014
At Camden, New Jersey

37