STITH v. NEW JERSEY TURNPIKE AUTHORITY

Filing 5

OPINION. Signed by Judge Renee Marie Bumb on 3/21/17. (jbk, )

[ECF Nos. 1, 3]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
BRENDA STITH,
Plaintiff,

Civil No. 16-6477 (RMB/KMW)
OPINION

v.
NEW JERSEY TURNPIKE AUTHORITY,
Defendant.

BUMB, UNITED STATES DISTRICT JUDGE:
THIS MATTER comes before the Court upon the filing of a
Complaint and supporting documentation by Plaintiff Brenda Stith
(“Plaintiff”) against the New Jersey Turnpike Authority
(“Defendant”).

In so bringing this action, Plaintiff has sought

– and been granted – leave to proceed without prepayment of
fees.

App. [ECF No. 1-2.]; Order [ECF No. 2].

Having granted

Plaintiff in forma pauperis status, the Court now screens the
Complaint pursuant to 28 U.S.C. § 1915(e)(2).
I.

BACKGROUND
Plaintiff is a part-time toll collector for the New Jersey

Turnpike Authority.

Ex. at 1 [ECF No. 1-1] (“Advisory Notice”).

Toward the end of 2008, Plaintiff alleges that she felt she

might be suffering from a medical issue.

Compl. 3 [ECF No. 3].1

In January 2009, after undergoing a polysomnography, Plaintiff
was diagnosed with “[m]ild to moderate obstructive sleep apnea
syndrome.”
Report”).

Ex. at 9-12 [ECF No. 1-1] (“Polysomnography
At that time, Plaintiff alerted Defendant’s medical

division of her medical issue.

Compl. 3.

Thereafter, Plaintiff alleges that she was suspended on
multiple occasions for excessive lateness which she attributes
to her sleep apnea.

Advisory Notice at 1.

Specifically,

Plaintiff has provided the Court with an Advisory Notice of
Disciplinary Action that documents four suspensions or instances
of disciplinary conduct for “excessive lateness.”

Id.

According to that report, Plaintiff was suspended for three days
in August 2012, five days in April 2013, ten days in April 2015,
and thirty days in September 2015.

Id.

After her first

suspension in August 2012, Plaintiff alleges that she approached
Defendant about accessing her records which might explain this
lateness, but that it was unhelpful.
(“E.E.O.C. Ltr.”).

Ex. at 3 [ECF No. 1-1]

During the course of several subsequent

Plaintiff has submitted multiple documents outlining her
allegations in this case. Because the various documents contain
different allegations, and consistent with this Court’s
obligation to liberally construe pro se filings, the Court
considers allegations contained in both the initial letter filed
by Plaintiff, [ECF No. 1], and the Complaint filed by Plaintiff,
[ECF NO. 3], at screening. The Court additionally considers
documents attached to the letter as exhibits to her pleadings.
1

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suspensions, Defendant and union representatives were again
unhelpful in allowing Plaintiff to seek accommodation.

Id.

In her initial Complaint, and in addition to providing her
medical records to Defendant, Plaintiff notes that she has twice
requested accommodation in writing from Defendant: on May 16,
2016 and May 26, 2016.

Ltr. at 2 [ECF No. 1].

Plaintiff

alleges that she received no response, or that the response was
deficient.

Id.; see also Ex. at 15 [ECF No. 1-1] (“Def.’s May

20, 2016 Ltr.”) (Defendant’s response to May 16, 2016 Letter:
“Please be advised that I am not aware of any disability as you
allege.

Kindly contact the New Jersey Turnpike Authority

Medical Section to schedule an appointment to discuss this
matter.”).

After Plaintiff re-supplied her medical diagnostic

information in her May 26, 2016, Ex. at 16 [ECF No. 1-1] (“Pl.’s
May 26, 2016 Ltr.”), Plaintiff does not allege that she received
a response.

However, since filing her Complaint, Plaintiff has

informed the Court that she has been told by Defendant that she
would not be accommodated.

Ltr. [ECF No. 4] (“Pl.’s Feb. 22,

2017 Ltr.”).
Despite her claim that she has received no response or an
unsatisfactory response from Defendant throughout her pursuit of
accommodation, other portions of Plaintiff’s filings –
specifically her letter to the Equal Employment Opportunity
Commission – suggest that she was earlier offered the
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accommodation that Defendant “would grant [Plaintiff the
ability] to work out of interchange 1 at the end of the New
Jersey Turnpike leading to the Delaware memorial bridge[.]”
E.E.O.C. Ltr. at 3.

However, that accommodation involved

Plaintiff losing her seniority at her original station.

Id.

Plaintiff also alleges that at least one other employees was
permitted to arrive late without consequence.

Id.

Subsequently, Plaintiff brought claims of age and
disability discrimination before the E.E.O.C.

On June 30, 2016,

Plaintiff received a letter from the E.E.O.C. indicating it had
reviewed her charge and was unable to conclude that “the
information establishes a violation of federal law on the part
of [Defendant].”

Ex. at 17 [ECF NO. 1-1] (“E.E.O.C.

Determination”).

Plaintiff sought reconsideration of this

determination, and was ultimately denied.

Ex. at 21 [ECF No. 1-

Plaintiff alleges that the

1] (“E.E.O.C. Reconsideration”).

Defendant “lied with respect to [its] response [to the E.E.O.C.]
and stated that [it was] never made aware of [her] disability.”
Compl. 3.
Plaintiff also claims that since she has pursued these
claims, and twice visited Defendant’s place of business “in an
attempt to bring this situation to a resolution,” she was
rebuffed and told she needed “to be seen by the head doctor in
the medical division.”

Id. 3.

Plaintiff claims she met with
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the “head doctor” on August 31, 2016, and was told that she
needed to be seen again by her sleep apnea specialist.
Ultimately, Plaintiff claims that she is “not asking for
monetary compensation[,]” but is “simply requesting written
accommodation acknowledging my disability so that unnecessary
disciplinary actions, unfair suspensions and threats of
termination will no longer be an issue.”
II.

Compl. 4.

LEGAL STANDARD
Pursuant to 28 U.S.C. § 1915(e)(2), the Court must

preliminarily screen in forma pauperis filings, and must dismiss
any filing that is frivolous or malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief.

Id.

Federal Rule of Civil Procedure 8(a) requires that a
complaint contain:
(1)

(2)

[A] short and plain statement of the claim showing
that the pleader is entitled to relief; and

(3)

Id.

[A] short and plain statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;

[A] demand for the relief sought, which may include
relief in the alternative or different types of
relief.

“[A] complaint must do more than allege the plaintiff's

entitlement to relief. A complaint has to ‘show’ such an
entitlement with its facts.”

Fowler v. UPMC Shadyside, 578 F.3d
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203, 311 (3d Cir. 2009).

However, in screening a complaint to

verify whether it meets this standard, this Court is mindful of
the requirement that pro se pleadings must be construed
liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S.
519, 520-21 (1972).
III. ANALYSIS
Plaintiff does not articulate specifically the cause or
causes of action she seeks to bring.

Nevertheless, based upon

the allegations contained within the filings, the Court
construes Plaintiff’s allegations as seeking to state claims for
failure to accommodate under the Americans with Disabilities Act
(“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”),
as well as a claim for disparate treatment under the NJLAD.

In

employment discrimination cases, both the federal and state
frameworks follow the burden-shifting methodology adopted in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
See Kelly v. HD Supply Holdings, Inc., Civ. No. 14-372
(RBK/AMD), 2014 WL 5512251, at *3 (D.N.J. Oct. 31, 2014).
“Under this framework, a plaintiff must first establish a prima
facie case of discrimination.”

Id.

However, it has been held

that a Plaintiff is not required to plead a prima facie case at
the motion to dismiss stage.

Id.

(“Thus, this Court finds that

Plaintiff was not required to plead a prima facie case in order
to survive a motion to dismiss.”).
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Nevertheless, as a framework for determining whether
Plaintiff’s claims should proceed past screening, it is worth
outlining the ultimate evidentiary showing Plaintiff will have
to make to guide the Court’s analysis.

Petruska v. Rickett

Benckiser, LLC, Civ. A. No. 14-03663 (CCC), 2015 WL 1421908, at
*6 (D.N.J. Mar. 26, 2015) (“While [a p]laintiff need not
establish the elements of a prima facie case in his complaint,
the Court nevertheless finds that the McDonnell Douglas elements
provide guidance in assessing whether Plaintiff has stated a
plausible claim under the pleading standards of Twombly and
Iqbal.”).

As such, the Court orients its screening analysis

around the prima facie showing.
A. Failure to Accommodate
In order to establish a prima facie case of failure to
accommodate under the ADA and the NJLAD, a plaintiff is required
to demonstrate the typical showing for disability
discrimination: that “(1) [s]he is a disabled person within the
meaning of the ADA [or NJLAD]; (2) [s]he is otherwise qualified
to perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) [s]he has
suffered an otherwise adverse employment decision as a result of
discrimination.”

Maher v. Abbott Labs., Civ. A. No. 11-

5161(PGS)(TJB), 2013 WL 6326488, at *9 (D.N.J. Dec. 4, 2013)

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(quoting Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir.
1998)).
Additionally, Plaintiff must allege another showing which
goes to the second element of the discrimination prima facie
case above.

“To show that an employer failed to participate in

the interactive process, a disabled employee must demonstrate:
(1) the employer knew about the employee’s disability; (2) the
employee requested accommodations or assistance for her
disability; (3) the employer did not make a good faith effort to
assist the employee in seeking accommodations; and (4) the
employee could have been accommodated but for the employer’s
lack of good faith.”

Boles v. Wal-Mart Stores, Inc., Civ. A.

No. 12-1762 (JLL), 2014 WL 1266216, at *12 (D.N.J. Mar. 26,
2014) (quoting Tynan v. Vicinage 13, 351 N.J. Super. 385, 400-01
(App. Div. 2002)); see also McQuillan v. Petco Animal Supplies
Stores, Inc., Civ. A. No. 13-5773 (FLW), 2014 WL 1669962, at *6
(D.N.J. Apr. 28, 2014) (“[T]he requirements for a failure to
accommodate claim under the NJLAD have been interpreted in
accordance with its federal counterpart . . . .”); Fulton v.
Johnson & Johnson, Civ. A. No. 05-819 (FLW), 2008 WL 544668, at
*14 n.13 (D.N.J. Feb. 26, 2008) (“[S]tandards for both a prima

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facie case and the interactive process are virtually identical
under both the ADA and the NJLAD”).2
Here, Plaintiff has demonstrated at least at the screening
stage that she is a disabled person within the meaning of the
ADA and NJLAD.

Although the mere diagnosis of sleep apnea would

be insufficient, construing her allegations liberally, Plaintiff
has alleged that it impacted a substantial life activity, which
is required for the ADA.3

In the sleep study report attached as

an exhibit to her Complaint, it is recommended that Plaintiff
make use of a CPAP machine, which implicates sleeping and
breathing difficulty coextensive with the diagnosis of sleep
apnea.

This sort of allegation has been looked on favorably by

courts determining whether a plaintiff is disabled.

Creasy v.

Novelty, No. Civ. A. 404CV2296, 2005 WL 1652441, at *2 (M.D. Pa.
July 6, 2005) (“Plaintiff’s brief in opposition states that the
‘use of a CPAP machine in order to sleep clearly makes
[Plaintiff]’s condition a disability, as sleeping is a major

Although there may be some differences between the NJLAD and
the ADA with regard to the scope of disability, Gaul v. AT&T,
955 F. Supp. 346, 351 (D.N.J. 1997), or the requirement of an
adverse employment action, Durham v. Atlantic City Elec. Co.,
Civ. No. 08-1120 (RBK/AMD), 2010 WL 3906673, at *9 n.9 (D.N.J.
Sep. 28, 2010), the Court does not find those differences
material in this case, as Plaintiff’s failure to accommodate
claim survives under each standard.
3 The NJLAD definition of disability is more permissive.
Whitehead v. County of Monmouth, Civ. No. 15-5352, 2015 WL
5545552, at *2 n.1 (D.N.J. Sep. 18, 2015).
2

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life activity . . .

[Plaintiff] should make such allegations in

his complaint and not in his brief in opposition to the motion
At this very preliminary stage, Plaintiff’s

to dismiss.”).

allegation that she suffers from sleep apnea, and the associated
inference that it impacts her breathing and sleep, is sufficient
under the ADA and NJLAD.
Additionally, Plaintiff has demonstrated that she is
otherwise qualified to perform the job and suffered an adverse
employment action.

Plaintiff has presented no allegations of

other issues other than lateness (purportedly caused by her
sleep apnea) that she has encountered in her work.
the job at least since 2008.

She has held

She has suggested that with an

accommodation that included retaining her seniority and a
transfer to an ostensibly closer location, her sleep apnea could
be accommodated.

At the pleading stage, under a liberal

construction, this is sufficient, although at an advanced motion
stage, this may well be tougher row for Plaintiff to hoe.
Likewise, with regard to showing an adverse employment
action, in 2015 Plaintiff was suspended for 30 days from work
for her lateness.

Lanza v. Postmaster General of U.S., 570 F.

App’x 236, at 239-40 (3d Cir. 2014) (suggesting suspension is an
adverse employment action); Purvis-Chapman v. Silverstein, Civ.
A. No. 14-4252 (JBS/AMD), 2016 WL 1261208, at *5 (D.N.J. Mar.
31, 2016) (calling suspension an adverse employment action); see
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also N.J.S.A. § 34:19-2(e) (defining retaliatory action as “the
discharge, suspension or demotion of an employee, or other
adverse employment action taken against an employee in the terms
and conditions of employment.”).

This is sufficient.

With regard to the four-prong secondary showing in a
failure to accommodate context, Plaintiff has also carried her
burden.

Plaintiff has alleged that she requested accommodations

in 2009, as well as in May of 2016 and that her requests were
ultimately, and after a long and silent wait, denied.

See

Pizzo v. Lindenwold Bd. of Educ., Civ. A. No. 1:13-cv-03633
(JBS/JS), 2015 WL 1471943, at *12 (“A reasonable jury could find
that Plaintiff made a clear request for assistance for her
disability when she asked Defendant . . . for sick bank time . .
. .

She then submitted doctor’s notes related to her subsequent

absences.”).

Construing the allegations liberally, Plaintiff

has shown that her employer did not engage in the interactive
dialogue concerning accommodation despite repeated notifications
of her disability.

See id. (“Rather than engage Plaintiff in an

interactive process to find an acceptable accommodation,
Defendant never communicated with Plaintiff regarding her sick
bank request or her doctor’s notes, and denied her request with
no explanation on March 28, 2013, the same day it fired her.”).
Accordingly, under a liberal reading, Plaintiff has made this
showing.
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As such, the Court finds that Plaintiff has stated a claim
for failure to accommodate and will direct the Complaint be
filed and proceed past screening on this cause of action.
B. Disparate Treatment under NJLAD
For similar reasons, Plaintiff has also stated a claim – at
the screening stage – for disparate treatment.

“In order to

establish a prima facie case for allegations of disparate
treatment, a plaintiff must establish that: (1) [s]he belongs to
a protected class; (2) [s]he was performing h[er] job at a level
that met h[er] employer’s legitimate expectations; (3) [s]he
suffered an adverse employment action; and (4) otherwise not
within the protected class did not suffer similar adverse
employment action.”

Sharkey v. Verizon new Jersey, Inc., Civ.

A. No. 14-2788 (JLL), 2014 WL 7336768, at *6 (D.N.J. Dec. 22,
2014) (citing El-Sioufi v. St. Peter’s Univ. Hosp., 382 N.J.
Super. 145, 167 (App. Div. 2005)).

For purposes of screening,

the Court considers Plaintiff to be disabled, meeting element
one.

See Taylor v. Lincare, Civ. No. 15-6284 (RMB/JS), 2016 WL

3849852, at *3 (D.N.J. July 15, 2016).

There exists no

allegation in her pleading – apart from her lateness resulting
from sleep apnea – that Plaintiff was not meeting employment
expectations, meeting element two.

Plaintiff was suspended

thirty days for being late, meeting element three.

Finally,

Plaintiff has alleged that at least one other employee boasted
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of lateness on a number of occasions in the presence of the same
supervisor who cited Plaintiff for lateness, meeting element
four.

E.E.O.C. Ltr. at 4.

Accordingly, liberally construing

her allegations, Plaintiff has stated a claim for disparate
treatment.
IV.

CONCLUSION
For the reasons set forth above, Plaintiff’s allegations

survive a preliminary screening with regard to two causes of
action: a failure to accommodate claim under the NJLAD and ADA
and a disparate treatment claim under the NJLAD.4

Accordingly,

Plaintiff additionally requests the appointment of counsel.
Pl.’s Feb. 22, 2017 Ltr. 2 (“I am requesting financial
assistance in relation to Court [] costs and legal
representation.”). In evaluating whether an attorney should be
appointed for a Plaintiff, the Court examines the merits of a
plaintiff's claim to determine if it has “some arguable merit in
fact and law.” See Tunnell v. Gardell, No. Civ. A. 01-115 (GMS),
2003 WL 1463394, at *1 (D. Del. Mar. 14, 2003). If the Court
determines the claim has factual and legal merit, then the Court
examines: (1) a plaintiff's ability to present his or her own
case; (2) the complexity of the legal issues; (3) the degree to
which factual investigation will be necessary and the ability of
a plaintiff to pursue such investigation; (4) the amount a case
is likely to turn on credibility determinations; (5) whether the
case will require testimony of expert witness; and (6) whether a
plaintiff can attain and afford counsel on his or her own
behalf. See id. (citing Parham, 126 F.3d at 457-58; Tabron, 6
F.3d at 155-56, 157 n.5). At this stage, the Court finds
Plaintiff has adequately been able to pursue her relatively
straightforward claims, which do not require an overwhelming
amount of further factual development. Any credibility
determinations or expert witnesses do not outweigh the factors
which suggest appointment of an attorney is unnecessary at this
point. Of course, should the course of the litigation change,
the Court will revisit the issue of appointment of counsel upon
a request by Plaintiff.
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the Court will reopen this matter and direct the Clerk of the
Court to file the Complaint and issue summons.

An appropriate

Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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