Opinion
Civil No. 02-1578 (JBS).
November 10, 2003
David R. Castellani, Esquire, GOLDENBERG, MacKLER, SAYEGH, MINTZ, PFEFFER, BONCHI GILL, Atlantic City, New Jersey, Attorney for Plaintiff.
Elizabeth A. Malloy, Esquire (pro hac vice), Melanie Mecka Kennedy, Esquire, KLETT ROONEY LIEBER SCHORLING, P.C., Newark, New Jersey, Attorney for Defendant.
OPINION
This matter comes before the Court upon motion by Defendant for summary judgment. The Court has considered the arguments of the parties and finds that Defendant's motion for summary judgment must be granted.
BACKGROUND
Plaintiff Karen Jackson was hired by Suburban Cable Company — the predecessor of Comcast Cable Communications, Inc. — in Pleasantville, New Jersey, as a customer service representative, by letter dated January 29, 1997. Plaintiff commenced her employment with Suburban on February 10, 1997. When she was hired by Suburban, Plaintiff was a member of the International Brotherhood of Electrical Works, Local 827 ("Union"), and she remained a member of the Union throughout her employment with Suburban Cable and Comcast. Throughout Plaintiff's employment, there was a collective bargaining agreement ("CBA") in place between the Union and Suburban Cable. In January 2000, Comcast acquired Suburban Cable and in April of that year, the employees based at the Suburban Cable Pleasantville facility became Comcast employees. Also in April of 2000, Comcast adopted the CBA which was then in effect, for the duration of that CBA — i.e., until May 31, 2001. When the Suburban Cable contract expired, Comcast negotiated a new CBA, which was ratified by the Union members in mid-June 2001. Plaintiff was never a member of the negotiating team for the Union in negotiating any labor agreements.
At some point, Plaintiff was promoted to the position of service technician and later promoted to the position of senior service technician, a position that she held until her discharge. In mid-March 2001, Plaintiff complained to her supervisors that she was experiencing pain in her wrists. Plaintiff's supervisors worked with Plaintiff to accommodate her on days when she had pain in her hands or wrists by permitting her to ride back-up in Atlantic City. In the service technician position, there is an assignment in the Atlantic City area which generally requires two full time technicians. The second technician is known as the "back-up" person and the duties are significantly less physically strenuous. Comcast typically uses the back-up rider position to train new technicians, but has, at times, also used this position as a temporary light duty assignment in order to allow injured employees to recuperate. As a general matter, this is not a long-term or permanent light duty position. Instead, the back-up person is a regular, full-duty assignment and when the technician assigned to that position is not on light duty, he is expected to perform all of the duties of a regular technician.
On or about March 21, 2001, Plaintiff submitted a doctor's note from her private family physician, Dr. Wedad Michael, requesting light duty. Initially, Plaintiff was accommodated with work at the campgrounds, but after performing this work for about a week, Plaintiff complained that the work still hurt her hands. Plaintiff was therefore assigned to work back-up in Atlantic City in a light duty capacity. Plaintiff eventually saw a neurologist and was diagnosed with severe polyarthritis. Comcast continued to assign Plaintiff to the back-up position in a light duty capacity until May 18, 2001. On May 23, 2001, Comcast met with Plaintiff and ended her light duty assignment.
Comcast claims that it ended Plaintiff's light duty because, in its view, Plaintiff had been uncooperative and belligerent in response to the company's inquiries regarding her restrictions and the job duties; as of that date, she had not provided the company with a more specific doctor's note detailing her light duty restrictions that would have permitted the company to assess what assignments Plaintiff was capable of performing; the company did not have an understanding of what Plaintiff's medical diagnosis was; and Plaintiff had already been accommodated for close to sixty days and Plaintiff had not indicated if or when she would be able to resume her full duties. Comcast further asserts that it provided Plaintiff with a packet of forms containing a Family and Medical Leave Act ("FMLA") application, physician's form, and a State of New Jersey Temporary Disability application at this time.
Plaintiff began a medical leave of absence on May 23, 2001 for bilateral carpal tunnel syndrome. When Plaintiff's leave began on May 23, 2001, the 1997 CBA was in effect, which required Plaintiff to first exhaust her accrued sick days and vacation days. At that time, Plaintiff had 55.25 hours of sick time and 49.25 hours of unused, accrued vacation time. Plaintiff exhausted this unused, accrued time as of June 8, 2001, at which time her discretionary leave under Sextion 5.05 began.
Plaintiff had surgery on June 20, 2001 for carpal tunnel release to her right hand. Plaintiff's second surgery, on July 9, 2001, was for carpal tunnel release to her left hand. Comcast claims that Plaintiff completed an application for leave under the FMLA, which was signed by Plaintiff and dated June 11, 2001. In her FMLA leave application, Plaintiff requested a leave period from May 23, 2001 until September 24, 2001 and stated that her reason for the request was bilateral carpal tunnel syndrome. At this time, Plaintiff also submitted a doctor's note dated June 19, 2001, in which Plaintiff's physician advised the company that he anticipated Plaintiff's post-operative recovery to be three and one half months, until September 24, 2001. Sometime in September, Plaintiff submitted a note from her treating physician dated September 7, 2001, that identified Plaintiff's condition as carpal tunnel syndrome and that changed her return-to-work date to November 23, 2001. At the end of her FMLA leave, Plaintiff did not report to work.
Comcast permitted Plaintiff to remain out on leave after September 24, 2001 under Section 5.05 of the CBA, which permits a leave of absence of up to six months, pursuant to her doctor's notes evidencing the need for continued medical leave. Plaintiff submitted another note by a new treating physician dated October 23, 2001 that also identified Plaintiff's condition as carpal tunnel syndrome and indicated that Plaintiff had revision carpal tunnel release surgery to her left hand on October 11, 2001. Plaintiff's employment was terminated effective December 9, 2001, pursuant to Section 5.05 of the CBA because her discretionary leave of absence exceeded six months.
Comcast further claims that Plaintiff lost her seniority under the CBA on December 9, 2001. Plaintiff, however, asserts that this matter is the subject of a binding labor arbitration which is currently pending. Plaintiff and her Union specifically dispute the application of Section 5.05 and the meaning of the term "loss of seniority" in the arbitration.
On June 11, 2001, Plaintiff applied for short term disability benefits through the State of New Jersey. Plaintiff received state disability benefits for the maximum six month period allowed under New Jersey law. When these benefits ended, she started to collect workers' compensation benefits. In addition to state disability, Plaintiff also sought private disability insurance through CUNA Mutual Group, in late June/early July 2001. In September, 2001, Plaintiff sought to enroll in the company's new LTD plan, and in late November/early December 2001, Plaintiff received two workers' compensation checks. On February 21, 2002, Plaintiff applied to the federal government for Social Security Disability benefits. At the same time that Plaintiff was applying for Social Security Disability benefits, Plaintiff was initiating this lawsuit on March 11, 2002 in Superior Court, Atlantic City, alleging disability discrimination.
Plaintiff claims she was subjected to discrimination by Comcast based on her race and disability and was retaliated against because she filed a workers' compensation claim. Plaintiff alleges that she was terminated from her employment with Comcast because she filed a claim for workers' compensation benefits for her bilateral carpal tunnel syndrome. On April 6, 2001, Suburban Cable denied Plaintiff's worker's compensation claim. In addition, Comcast's insurance carrier denied Plaintiff's claim on June 12, 2001 because it thought the prior carrier — Suburban — should be responsible for the claim because Plaintiff claimed her injury was an aggravation of a prior injury she suffered while employed by Suburban.
Plaintiff also alleges that she was discharged on account of her race. In support of her race discrimination claim, Plaintiff asserts that a Caucasian employee, Lena McKillop, was permitted to remain on a leave of absence longer than Plaintiff. Plaintiff also claimed at her deposition that the work environment at Comcast was racially hostile, identifying the following: (1) she felt more was expected of her as a black technician and that she was not given any variety in her work assignment (Pl. Dep. at 16-17); (2) there was nepotism in hiring and Comcast never hired any friends or family members referred to the company by black employees (Pl. Dep. at 35); (3) supervisors followed the black employees around (Pl. Dep. at 46); (4) co-employees told racial jokes (Pl. Dep. at 155-58); and (5) every discipline taken against Plaintiff was on account of her race (Pl. Dep. at 174).
DISCUSSION
As a preliminary matter, this Court must address Plaintiff's Letter Brief and Submission pursuant to Appendix N of the Local Rules and Defendant's request that this supplemental submission be stricken. Plaintiff's submission consists of a supplemental opposition letter brief with attached documents and affidavits of Paul Moore, Jr., a Comcast maintenance technician. Comcast objects to plaintiff's submission on the ground that they are improper sur-replies.
The Local Rules, Appendix N expressly states that "[n]o sur-replies are permitted in the absence of the consent of opposing counsel and permission of the Judge to whom the case is assigned." Appendix N, B.6; see also Local Rule 7.1 (providing in the annotations that "sur-reply briefs are not allowed under the rule, and where submitted, may be disregarded in the discretion of the judicial officer.").
Plaintiff has not sought Comcast's consent to file any sur-reply nor has she sought leave of the Court for its consent to file this submission. Instead, Plaintiff sent these sur-replies directly to the Court, without adherence to the governing rules. For this reason, this Court will not consider Plaintiff's submission. See Cooper v. Cape May County Bd. of Social Services, 175 F. Supp. 2d 732, 742 (D.N.J. 2001) (where plaintiff, prior to mailing his submission to the Court, "did not seek leave to supplement his earlier opposition motion, and because he neither requested nor received the Court's permission," hey would not consider it).
Summary Judgment Standard
Summary judgment is appropriate when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the suit under the applicable rule of law. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to the party; "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in his favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250. Plaintiff's Claim of Workers' Compensation Retaliatory Discharge
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately has the burden of persuasion at trial.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, where the nonmoving party bears the burden of persuasion at trial, "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." Celotex, 477 U.S. at 325. The non-moving party "may not rest upon the mere allegations or denials of" its pleading and must present more than just "bare assertions, conclusory allegations or suspicions" to show the existence of a genuine issue. Fed R. Civ. P. 56(e); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).
The second count of Plaintiff's Second Amended Complaint alleges that Plaintiff was discharged in retaliation for filing a workers' compensation claim. In support of that allegation, Plaintiff contends that she filed a claim which was initially denied, and that the workers' compensation court overruled that determination and ordered that Plaintiff receive medical and temporary benefits. (Comp. ¶¶ 2-5). Plaintiff further contends that "immediately after" the determination was made to award her benefits, her employment was terminated. (Comp. ¶ 6).
New Jersey law recognizes a common law claim for retaliatory discharge when an employee is discharged contrary to a clear mandate of public policy. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). Moreover, the discharge of an employee in retaliation for filing a workers' compensation claim has been found to fall within a " Pierce-type" claim. Lally v. Copygraphics, 85 N.J. 668 (1981).
In analyzing a retaliatory discharge claim under New Jersey law, courts look to correlative federal law to supply the burden shifting framework and relevant standards for evaluating the claim. See Abrams v. Lightolier Inc., 50 F.3d 1204, 1212 (3d Cir. 1995). In a retaliatory discharge claim brought under Title VII, the law places the initial burden of production on the plaintiff to establish a prima facie case of retaliatory discharge. Once the plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the discharge. Ultimately, the plaintiff must show that the defendant's proffered reasons for the discharge are not worthy of belief and that the defendant acted with the intent to retaliate unlawfully. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
A defendant is entitled to summary judgment on a plaintiff's claim for retaliatory discharge if it can demonstrate that: (1) the plaintiff is unable to establish a prima facie case of retaliatory discharge; or (2) if plaintiff can establish a prima facie case, the plaintiff cannot produce sufficient evidence of pretext to rebut the defendant's asserted legitimate reason for discharge. Morris v. Siemens Components, Inc., 928 F.Supp. 486, 493 (D.N.J. 1996).
To establish a prima facie case of retaliatory discharge, the plaintiff has the burden of proving that: (1) she attempted to make a claim for workers' compensation benefits; and (2) she was discharged for making that claim. Galante v. Sandoz, Inc., 192 N.J. Super. 403, 407 (Law Div. 1998), aff., 196 N.J. Super. 568 (App.Div. 1984) (relying on Lally).
Defendant concedes that Plaintiff has met the first element of a retaliatory discharge claim in that she made a claim for workers' compensation benefits. Comcast argues, however, that Plaintiff cannot establish that the second required element — that Defendant terminated Plaintiff for a pretextual reason in retaliation for Plaintiff's claim for workers' compensation benefits — is met.
In support for her retaliation claim, Plaintiff relies primarily on timing. Plaintiff alleges that she received notice of the workers' compensation court's award in November 2001 and was discharged shortly thereafter. Timing evidence can indeed be considered probative of the causal link between protected activity and an adverse employment action. See e.g., Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997); Krouse v. American Sterilizer Co., 126 F.3d 494 (3d Cir. 1997). The Third Circuit has remarked however that its "case law is `seemingly split' as to whether temporal proximity between the protected activity and the alleged retaliatory act can be sufficient in itself to create an inference of a causal connection for the purposes of a prima facie case of retaliation." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). The Third Circuit has explained, however, that the analysis is largely fact-based and depends on how proximate the events actually were, and the context in which the issue was presented.Id.
Here, Plaintiff claims that the record demonstrates facts that, when considered in conjunction with the timing of discharge, raise an inference of causation sufficient to establish a prima facie case of retaliation. Specifically, Plaintiff alleges that in addition to disputing the work related nature of Plaintiff's injuries, employees of the Defendant questioned her notes from physicians, failed to give her appropriate light duty assignments, denied her an extension of light duty that was allegedly otherwise consistent with its own policy, and finally terminated her within one month of a workers' compensation award requiring the company to pay medical benefits and temporary disability benefits. This Court agrees that, upon examination of the specific facts and sequence of events in this case, timing is probative for purposes of Plaintiff's prima facie case and will, therefore, give Plaintiff the benefit of this inference of timing.
The fact that these events may or may not have transpired, however, does not automatically support the inference that Comcast terminated Plaintiff's employment because she submitted or indicated an intention to submit a claim for workers' compensation benefits. Plaintiff does not claim that anyone at Comcast ever discouraged her from filing a claim or threatened to fire her if she did so. Her claim thus depends upon assessment of indirect evidence, as noted above.
Assuming, however, that Plaintiff might establish such a prima facie case, summary judgment on this claim would still be appropriate if the plaintiff cannot produce sufficient evidence of pretext to rebut the defendant's asserted legitimate reason for discharge. Comcast asserts that Plaintiff's employment ended pursuant to Section 5.05 of the CBA, when her leave of absence extended beyond six months. Courts have granted summary judgment in favor of defendants in retaliatory discharge cases in which the employer applied a neutral absence control policy to an employee who has attempted to, or did, file for workers' compensation benefits. See e.g., Galante, 192 N.J. Super at 407-08 (granting summary judgment in favor of the defendant, finding absolutely no evidence that the fact that a claim for benefits had been filed entered into a decision to recommend the employee for termination as a result of his excessive absenteeism). Plaintiff, however, challenges Comcast's interpretation of Section 5.05. That Comcast's interpretation and application of Section 5.05 may have been wrong or mistaken is not sufficient for Plaintiff to prevail. Instead, Plaintiff bears the burden of establishing, with substantial evidence, that Comcast's reason "was so plainly wrong that it cannot have been the employer's real reason." Jones, 198 F.3d at 413. This, Plaintiff has not done.
Furthermore, Plaintiff is unable to point to any record evidence that suggests that Defendant's reason for discharging plaintiff — her loss of seniority under the CBA — was not the real reason for her discharge. In fact, the undisputed record establishes that Comcast assisted Plaintiff in the filing of her claim and therefore belies an allegation of retaliation. In order to demonstrate pretext, Plaintiff must convince the fact finder that "both the reason was false, and that discrimination was the real reason." Jones v. School Dist. of Philadelphia, 198 F.3d 403, 412-13 (3d Cir. 1999). Plaintiff cannot meet this burden by simply stating her disagreement with Comcast's actions or claiming that Comcast's actions were wrong, see Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994), nor can she establish pretext by asking the court to second-guess Comcast's employment decisions. Keller v. Oriz Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997).
As soon as Marge Doms, Human Resources Manager, became aware that Plaintiff's hand pain may be work-related and associated with a prior injury in 1999 (when Suburban operated the facility), she advised Suburban Cable's insurance carrier. Ms. Doms also immediately completed an injury report, and assisted in Plaintiff's filing of a claim with Comcast's workers' compensation carrier. See Affidavit of Marge Doms, ¶ 14.
For these reasons, summary judgment should be, and hereby is, granted in favor of Defendant on Plaintiff's workers' compensation retaliation claim.
Plaintiff's Race Discrimination Claim
Plaintiff, in her Second Amended Complaint, also asserts that her discharge was on account of her race and that Comcast treated her differently than other similarly situated Caucasian employees. (Comp. ¶¶ 7-8). New Jersey courts look to case law under Title VII in interpreting the New Jersey Law Against Discrimination ("NJLAD") and apply the same three-step McDonnell Douglas burden-shifting analysis. Casseus v. Elizabeth General Med. Ctr., 287 N.J. Super. 396, 406 (App.Div. 1996) (applying the McDonnell Douglas test to race discrimination case). In order to establish a prima facie case that she was discriminated against on the basis of race, Plaintiff must prove that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she, despite her qualifications, was discharged; and (4) the employer sought another to perform the same work or treated non-members of the protected class more favorably. Baxter v. ATT Communications, 712 F. Supp. 1166, 1172 (D.N.J. 1989).
If Plaintiff succeeds in presenting a prima facie case, then the burden shifts to the Defendant to produce evidence of a legitimate, nondiscriminatory reason for its decision. McDonnell Douglas, 411 U.S. at 802. If the Defendant does so, "then, the plaintiff, since she retains the ultimate burden of persuasion, must prove, by a preponderance of the evidence, that the defendant's proffered reasons were a pretext for discrimination."Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981).
In order to defeat a motion for summary judgment, Plaintiff must come forward with "some evidence, direct or circumstantial, from which a fact finder would reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employers action."Jones v. School District of Philadelphia, 198 F.3d 403, 413 (3d Cir. 1999).
Under the first prong of this test, an employee must do more than "simply show that the employer's decision was wrong or mistaken," since the ultimate issue is whether the employer was motivated by discriminatory animus. Fuentes, 32 F.3d at 765. "The non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them `unworthy of credence' and hence infer `that the employer did not act for [the asserted] nondiscriminatory reasons. Id.
Plaintiff fails to establish a prima facie case of race discrimination because she has presented no evidence that Comcast treated similarly-situated white employees more favorably than her with respect to this adverse action. In making her contentions, Plaintiff points to no adverse employment action. Instead, Plaintiff's allegations are based on nothing more than her subjective belief that she was the victim of racial discrimination. Plaintiff is unable, and admits to her inability, to show that similarly situated white employees were not terminated as was Plaintiff after being out of work for six months due to a work-related injury. Instead, Plaintiff claims that such evidence is not available because this was the first time that Comcast had exercised or attempted to exercise Section 5.05 of the CBA. Pl. Brief at 6. Plaintiff's failure to identify similarly-situated white employees, however, is fatal to her claim.
Furthermore, even assuming that Plaintiff could demonstrate a prima facie case, Plaintiff has not met her burden of proving that Comcast's articulated reasons for her discharge were a pretext for racial discrimination. Comcast has produced undisputed evidence that it considered Plaintiff to have lost her seniority at the expiration of her statutory and discretionary leaves under Section 5.05 of the CBA. Plaintiff was on a leave of absence from June 9 through December 9, 2001. By letter dated December 10, 2001, Comcast terminated Plaintiff's employment in accordance with the terms of this provision of the Union contract because the leave exceeded six months. Plaintiff has offered no evidence, direct or circumstantial, that her race played any role in the decision to terminate her employment, or that a white employee would receive more favorable treatment.
For these reasons, summary judgment should be, and hereby is, granted in favor of Defendant on Plaintiff's race discrimination claim.
Plaintiff's Claim of Handicap Discrimination
In the first count of her Second Amended Complaint, Plaintiff alleges that she was discriminated against in violation of the NJLAD on account of her alleged handicap (bilateral carpal tunnel syndrome). In support of this claim, Plaintiff alleges that she was discharged when she was out of work on a leave of absence and denied an extension of light duty prior to her leave. (Comp. ¶ 5).
The NJLAD prohibits discrimination and unlawful employment practices against any handicapped person "unless the nature and extent of the handicap reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1. Courts in New Jersey use the same burden-shifting analytical framework as Title VII and the ADA in analyzing handicap discrimination claims under the NJLAD. Viscik v. Fowler Equip. Co., 173 N.J. 1 (2002). In order to establish a prima facie case of discriminatory discharge based on a handicap, Plaintiff must prove that (1) she was handicapped within the meaning of the law; (2) she was performing her job at a level that met her employer's legitimate expectations and that the handicap did not unreasonably hinder her job performance; (3) she nevertheless was fired; and (4) the employer sought someone to perform the same work after she left.Morris v. Siemens Components, Inc., 928 F. Supp. 486, 495 (D.N.J. 1996).
For purposes of this motion, Comcast is willing to assume that Plaintiff's bilateral carpal tunnel syndrome constitutes a "handicap" under the NJLAD. To establish that her handicap "did not unreasonably hinder her work performance", in other words, that she was "a qualified individual with a disability," Defendant argues that Plaintiff must be able to demonstrate that she could perform the "essential functions" of a senior service technician with or without reasonable accommodation. Motley v. New Jersey State Police, 196 F.3d 160, 166 (3d Cir. 1999),cert. denied, 529 U.S. 1087 (2000) (interpreting NJLAD requirement that the handicap "does not unreasonably hinder work performance" to be the same as the ADA's requirement that plaintiff be a "qualified individual with a disability").
Plaintiff has repeatedly asserted that she was disabled and unable to work since the date that she went out on her leave of absence. This is especially true with respect to Plaintiff's attempts to qualify for government disability benefits. Plaintiff's statements of disability coupled with her own factual assertions to the Social Security Administration that the pain was such that she was unable "to perform any duties during a day" preclude Plaintiff's inconsistent claim under the NJLAD that she could have performed the essential functions of her job on December 9, 2001, as well as for at least several months thereafter.
It is well-settled that an employee who represents that she is totally disabled to obtain benefits may be judicially estopped from alleging she is able to perform her job unless she proffers a sufficient explanation to resolve the conflict. Cleveland v. Policy Mgmt. Corp., 526 U.S. 795 (1999). Relying on this legal principle, courts in this District have judicially estopped employees from bringing disability discrimination claims when they have made conflicting representations of disability in applying for benefits. Motley, 196 F.3d 160 (3d Cir. 1999) (holding plaintiff to not be a qualified individual where he made factual assertions in applying for an accidental disability pension that he was "permanently and totally disabled" that were inconsistent with his ADA claim).
Even if Plaintiff is not judicially estopped from making her discrimination claim in light of her inconsistent representations for disability benefits, however, Plaintiff cannot raise a genuine issue of fact with respect to her status as a qualified individual with a disability. It is well established in the record that Plaintiff was on a medical leave of absence from at least June 8 though December 9, 2001. As of December 10, she had not been cleared by any of her treating physicians to return to work, and she had not communicated to the Company any anticipated return-to-work date. Under the law, Plaintiff was not qualified to perform the essential functions of her job at the time of her discharge. Walsh v. United Conveyor Corp., 222 F. Supp. 2d 997, 1004 (N.D. Ill. 2002) (disabled employee out of work for nearly four months not a "qualified individual with a disability");Mazza v. Bratton, 108 F. Supp. 2d 167, 175 (E.D.N.Y. 2000),aff'd, 9 Fed. App. 36 (2001), cert. denied, 534 U.S. 887 (2001) (finding individual not qualified for his position if unable to come to work); Svarnas v. ATT Comm., 326 N.J. Super. 59, 78 (App.Div. 1999) (holding that an employee who does not come to work cannot perform any of her job functions essential or otherwise).
In addition, Plaintiff fails to show that the circumstances of her discharge raise an inference of unlawful discrimination. It is undisputed that Plaintiff was not replaced, and therefore she does not meet an essential element of her prima facie case. Plaintiff also points to no fairly similarly-situated employee for purposes of comparison.
Furthermore, even assuming that Plaintiff was able to establish a prima facie case, Comcast has set forth a legitimate, nondiscriminatory reason for discharging Plaintiff — i.e., that she lost her seniority under the terms of the CBA. Under the CBA, Section 5.05 provides for a maximum six-months leave of absence, after which the employee's seniority is lost and results in the termination of employment. Plaintiff has not met her burden of proving that Defendant did not act in accordance with this stated reason, but instead was motivated by some discriminatory animus. Comcast acted in accordance with the terms of its Union contract. Indeed, both the Supreme Court and the Third Circuit have recognized the importance of employers' collectively bargained seniority provisions. Thus, although this doctrine has an unfortunate impact, it has been determined by the Supreme Court that an employer such as Comcast is generally not required to diverge from its collectively bargained seniority system in order to accommodate an employee with a disability.See U.S. Airways v. Barnett, 535 U.S. 391 (2002). See also Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, (1977);Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997).
Moreover, Comcast reasonably accommodated Plantiff before she began her leave. Prior to May 23, 2001, Comcast had accommodated Plaintiff with modified assignments for over two months. There were no "permanent" light duty positions at Comcast, and at no time did Plaintiff give the company any foreseeable end date for Plaintiff's light duty restrictions. Plaintiff has never identified parties similarly-situated who received treatment different than what she experienced.
The law does not require that Comcast provide indefinite light duty, or create permanent light duty positions in order to accommodate an employee. Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 680 (7th Cir. 1998) (finding temporary and limited nature of the light duty program did not violate the ADA); Buskirk v. Apollo Metals, 307 F.3d 160, 169-170 (3d Cir. 2002) (finding that employer did not fail to reasonably accommodate plaintiff by not transforming temporary light duty position into a permanent one); Sturm v. UAL Corp., 2001 WL 1300396 (D.N.J. 2000) (rejecting plaintiff's argument that his employer failed to reasonably accommodate him by converting temporary light duty assignment into permanent light duty position). The ADA specifies only that an employer discriminates against a qualified individual with a disability when the employer does "not make reasonable accommodations to the known physical or mental limitations of the individual unless the employer can demonstrate that the accommodations would impose an undue hardship on the operation of the business of the employer." 42 U.S.C. § 12112(b)(5)(A). The record shows that Comcast acted in good faith in accommodating Plaintiff and that is all the law requires. See Taylor v. Principal Financial Group Inc., 93 F.3d 155, 165 (5th Cir. 1996).
For these reasons, summary judgment should be, and hereby is, granted in favor of Defendant on Plaintiff's claim of handicap discrimination under the NJLAD.
CONCLUSION
For the foregoing reasons, this Court will grant the motion of Defendant Comcast Cable Communications, Inc. for summary judgment as to Plaintiff's claim of workers' compensation retaliatory discharge, race discrimination claim, and claim of handicap discrimination. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the motion of Defendant Comcast Cable Communications, Inc. for summary judgment against Plaintiff Karen Jackson, pursuant to Rule 56, Fed.R.Civ.P. [Docket Item No. 22-1]; and the Court having considered the parties' written submissions; for good cause shown; and for the reasons expressed in the Opinion of today's date;
IT IS this day of November, 2003 hereby
ORDERED that the motion of Defendant Comcast Cable Communications, Inc. for summary judgment against Plaintiff Karen Jackson [Docket Item No. 22-1] be, and hereby is, GRANTED and Judgment is entered for Defendant.
No costs.