Civil Action No. 02-5581(JEI).
July 27, 2004
MURPHY O'CONNOR, LLP, BY: ELIZABETH A. DALBERTH, Esq., Cherry Hill, NJ, Counsel for Defendants.
FROST ZEFF, BY: GREGG L. ZEFF, Esq., BESS MADWAY COLLIER, Esq., Cherry Hill, NJ, Counsel for Plaintiff.
Currently before the Court is Defendants' Motion for Summary Judgment on Plaintiff Edwin L. Smith's claims that Defendants violated his rights under the Americans' with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq., and New Jersey's Law Against Discrimination ("LAD"), N.J. Stat. Ann. § 10:5-1 et seq. For the reasons set forth below, the Court will deny Defendants' motion.
Plaintiff, Edwin Smith ("Smith"), was diagnosed with Multiple Sclerosis ("MS") in 1996. Prior to his diagnosis, Plaintiff suffered from chronic migraine headaches which rendered him unable to work. Plaintiff received Social Security disability payments from 1994 to 2001 for that condition. At some time prior to June 2001, however, Plaintiff became healthy enough to seek employment. On June 11, 2001, Plaintiff was hired by Defendant Burlington County ("County") as a county corrections officer. Plaintiff was cleared to work by his own physician and county doctors and, after four weeks of training, reported for his first day on the job on July 8, 2001.
Eleven days later, on July 19, 2001, Plaintiff made a written request to Defendant Juel E. Cole ("Cole"), the warden of the county jail, for accommodations for his MS, claiming that excessive overtime had exacerbated his symptoms such that he was unable to perform his duties. Defs.' Ex. 121-122. Plaintiff specifically requested that: (1) his overtime be minimized; (2) he not be assigned to duties that required walking long distances; and (3) he be allowed to omit the t-shirt and tie from his uniform. Id. On July 26, 2001, Plaintiff provided Defendants with a doctor's note in support of his request. Defs.' Ex. 126. The note indicated that Smith should work no more than 40 hours a week for an indefinite period. Id.
The parties dispute precisely how much overtime Plaintiff was required to work. Plaintiff claims he was working "sixteen hours a day" "four to seven days per week." Pl.'s Br. Opp'n Summ. J. at 15. Defendants, however, assert that in the week of July 8-15, 2001 Plaintiff worked a total of 27.5 hours of overtime and worked only 4 hours of overtime on both July 16 and 17. Defs.' Reply Br. at 4 ¶ 26.
Because it appears that Defendants were able and willing to grant the last two of Plaintiff's requests, those requests are not at issue here.
On August 1, 2001, Smith met with Warden Cole and Vernon Scott ("Scott"), the president of the Policemen's Benevolent Association, Local 249, regarding Smith's request for accommodation. Defs.' Ex. 128-29. At that meeting, Scott indicated that the union did not oppose Smith's request and asked that Smith be given four weeks of light duty with no overtime. Id. On August 21, 2001, Cole denied Plaintiff's request for no overtime because he claimed it violated the jail's collective bargaining agreement with the union which required that junior officers bear the brunt of overtime assignments. Defs.' Ex. 130. Cole specifically stated that "mandatory overtime was an essential function of [Plaintiff's] job" from which he could not be excused. Defs.' Ex. 130. Cole did, however, offer Smith a "`light duty' post" for any overtime shifts "for a period not to exceed six (6) weeks," provided that Scott approved the arrangement and "waived the union's rights on behalf of its other members" to grieve the arrangement. Defs.' Ex. 130. On September 1, 2001, Plaintiff rejected Cole's offer of light duty for overtime shifts and kept working, apparently continuing to report for overtime. Defs.' Ex. 133.
The overtime policy, as described in the Standard Operating Procedures Manual provided to all employees, states that overtime assignments are filled first by volunteers and then by officers according to inverse seniority. Seniority for officers hired on the same date is determined in reverse alphabetical order — such that an officer whose name begins with "Z" is junior to an officer whose name begins with "A." Defs.' Ex. 86-88. Plaintiff filed a separate complaint with the EEOC on August 20, 2001 challenging the prison's overtime policy.
In early 2002, Smith began experiencing paralysis in his right leg. Smith called in sick on February 5, was not scheduled to work on February 6 7, and did not report for scheduled shifts on February 8, 11, 12 15. Defs.' Ex. 135-38. Because Smith failed to call in or report for four days of work, he received "notices of disciplinary action." Id. On March 20, 2002, prison administrators held a disciplinary hearing addressing Smith's absences on February 11, 12, 15. Defs.' Ex. 142. Smith was suspended for fifteen days and ultimately terminated on March 28, 2002, for excessive absenteeism in violation of prison policy. Defs.' Ex. 142-153.
Plaintiff appealed his termination to the Office of Administrative Law. The OAL upheld Smith's termination. Defs.' Ex. 257-67. The Merit System Board affirmed. Defs.' Ex. 269. Plaintiff then filed a two-count Complaint in this Court on November 20, 2002, alleging that Defendants violated his rights under the ADA and the LAD. Defendants filed this motion for summary judgment on April 1, 2004, arguing that Plaintiff has failed to prove a prima facie case of disability discrimination under either the ADA or the LAD. The Court heard oral argument on the motion on June 9, 2004.
Summary judgment is appropriate where "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show: (1) he has a disability as defined by the ADA; (2) he is a "qualified individual;" and (3) he has suffered an adverse employment action because of that disability. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999); Gaul v. Lucent Tech., 134 F.3d 576, 580 (3d. Cir. 1998). We address each of these elements in turn.
We first examine whether Plaintiff is disabled under the ADA. To prove disability for the purposes of the ADA, a person must show he or she suffers from "a physical or mental impairment that substantially limits one or more of the major life activities of the individual." 42 U.S.C. § 12102. Major life activities include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i). Where work is the life activity at issue, the impairment must be one which "limit[s] employment generally" as "`[t]he inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working.' 29 C.F.R. § 1630.2(j)(3)(i)." Muthler v. Ann Arbor Mach., 18 F. Supp. 2d 722, 727 (E.D. Mich. 1998).
We note, however, that neither party directly addressed this issue in their papers and only briefly discussed it in oral arguments.
Several courts have explicitly held that "an inability to work overtime is not a substantial limitation on the ability to work" permitting a plaintiff to claim a disability under the ADA. Cotter v. Ajilon Serv., Inc., 287 F.3d 593, 598 (6th Cir. 2002); see also Kellogg v. Union Pac. R.R. Co., 233 F.3d 1083, 1087-88 (8th Cir. 2000); Taylor v. Nimock's Oil Co., 214 F.3d 957, 960-61 (8th Cir. 2000); Tardie v. Rehab. Hosp. of R.I., 168 F.3d 538, 542 (1st Cir. 1999); Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir. 1994); Brennan v. Nat'l Tel. Directory Corp., 850 F. Supp. 331, 343 (E.D. Pa. 1994). In so finding, these courts have consistently ruled that a plaintiff is not disabled under the ADA where the plaintiff's impairment requires him to limit the hours he works, but does not prevent him from working at jobs that do not require overtime. As the Tardie court noted, "there are vast employment opportunities available which require only 40-hour work weeks." 168 F.3d at 542.
Here, however, although Plaintiff explicitly requested that he not receive overtime, the record is insufficiently developed to determine what life activity Plaintiff claims is impaired by his MS. Neither party directly briefed this issue, nor did either party clarify the matter at oral argument. Therefore, for the purposes of this motion only, and without deciding the issue, the Court assumes that Plaintiff is disabled under the ADA.
b.Because the Court assumes, for the purposes of this motion only, that Plaintiff is disabled under the ADA, we next determine whether Plaintiff is a qualified individual under the statute. A qualified individual is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Determinations of whether a function is "essential" are made on a case-by-case basis, "with consideration . . . given to the employer's judgment as to what functions of a job are essential." 42 U.S.C. § 12111(8); see also Zaborowski v. Sealright Co., Inc., 2002 WL 1585521 *4 (N.D.N.Y. July 9, 2002). In addition to an employer's judgment, ADA regulations require courts to consider other relevant factors including:
(ii) written job descriptions prepared before advertising or interviewing applicants for the job; (iii) [t]he amount of time spent on the job performing the function; (iv) [t]he consequences of not requiring the incumbent to perform the function; (v) [t]he terms of a collective bargaining agreement; (vi) [t]he work experience of past incumbents in the job; and/or (vii) [t]he current work experience of incumbents in similar jobs.29 C.F.R. § 1630.2(n)(3).
Deference to employer determinations of what constitutes essential job functions helps to avoid the inherent difficulties of judicial definitions of those functions. "The purpose of these provisions [ 42 U.S.C. § 12111(8) and 29 C.F.R. 1630.2(n)(3)] is not to enable courts to second-guess legitimate business judgments, but, rather, to ensure that an employer's asserted requirements are solidly anchored in the realities of the workplace, not constructed out of whole cloth." Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 25 (1st Cir. 2002).
Applying this framework, courts have classified overtime as an essential job function for certain positions. See Davis v. Fla. Power Light Co., 205 F.3d 1301, 1305-06 (11th Cir. 2000) (finding that mandatory overtime was an essential function of plaintiff's job as an electrical worker for a power company); Kellogg, 233 F.3d 1083, 1087-88 (8th Cir. 2000) (finding overtime was a necessary part of a position as a "Senior Manager of Intermodal Stack Train Operations"); Tardie, 168 F.3d at 544 (stating that overtime was an essential function of a position as director of human resources); Zaborowski, 2002 WL 1585521 *4 (finding that extensive overtime was an essential function of the position of "Shipping Supervisor" at a warehouse); Dropinski v. Douglas County, Nebraska, 2001 WL 1580201 *6 (D. Neb. Dec. 5, 2001) (stating that plaintiff's "inability to work overtime rendered him unable to perform the essential function of working in emergency situations" required of snow plow operators); Rios v. Indiana Bayer Corp., 965 F. Supp. 919, 923-24 (S.D. Tex. 1997) (noting that overtime was an essential function of a position as a production technician).
We are satisfied that overtime is an essential function of a position as a Burlington County corrections officer. Both the written Standard Operating Policies ("SOP") and the written collective bargaining agreement ("CBA") indicate that overtime is a required component of corrections work. In addition, deposition testimony of Warden Cole, Deputy Warden Jackson, Lieutenant Debra Hall, Scott and Plaintiff clearly show that mandatory overtime is an essential function of Plaintiff's position. Correctional facilities, with the need for constant security even in the face of under-staffing, unexpected absences, or sudden unrest in the prison population, require that custodial officers work some mandatory overtime to meet security needs. Thus, we now turn to a determination of whether Plaintiff can work overtime with or without reasonable accommodation.
Specifically, the SOP details procedures by which supervisors assign overtime, stating that "[e]ach department or facility will be responsible to fulfill its own relieving overtime assignments by post and/or inverse seniority as in accordance to the officer's employment agreement." Defs.' Ex. 86. The CBA further outlines procedures for assigning daily overtime, noting that although pre-scheduled overtime will be filled on a volunteer basis, daily overtime is mandatory and employees will be "ordered to work by a supervisor." Defs.' Ex. 87-88.
Warden Cole testified that "part of what a correction officer has to do is be able to work overtime," and that mandatory overtime is "an important part of the correction officer's job." Defs.' Ex. 35. Deputy Warden Jackson explained that mandatory overtime might be required when an officer fails to appear for work without calling in sick. Defs.' Ex. 71. Lieutenant Debra Hall described the procedures by which someone would be selected for mandatory overtime. Defs.' Ex. 74. Scott also described the mandatory overtime policy, and noted that while the junior officers complained about mandatory overtime, the union did not object to the policy because of the importance of preserving seniority rights (whereby long-serving officers were "alleviated from excessive overtime"). Defs.' Ex. 100. Finally, Plaintiff himself stated that, "I was told that the position did require overtime," Def.'s Ex. 7, and "[w]e were told that the position did require some overtime and that it was mandatory." Defs.' Ex. 11.
Understaffing may be a particular problem where, as here, local governments are constrained by civil service hiring processes which prohibit the type of quick hiring permissible in the private sector.
An employee request for an accommodation triggers an "interactive process" in which "both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith." Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997); see also Taylor, 184 F.3d at 311-313; Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285-86 (7th Cir. 1996); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). A plaintiff alleging that his employer did not participate in the interactive process "must demonstrate: 1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or 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 reasonably accommodated but for the employer's lack of good faith." Taylor, 184 F.3d at 319. Where there is a genuine dispute as to whether an employer engaged in the process in good faith, granting summary judgment is inappropriate. See Taylor, 184 F.3d at 318-19; Fjellestad v. Pizza Hut of Amer., Inc., 188 F.3d 944, 953 (8th Cir. 1999); Deane v. Pocono Med. Ctr., 142 F.3d 138, 149 (3d Cir. 1998).
ADA regulations indicate that:
[t]o determine the appropriate reasonable accommodation it may be necessary for the covered entity [employer] to initiate an informal, interactive process with the qualified individual [employee] in need of accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. Pt. 1630, App. § 1630.9 at 363 (providing further guidance by noting that the "appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with the disability").
The obligation of both sides to engage in an interactive process to seek an accommodation that would permit Plaintiff to work while respecting Defendants' needs as an employer was triggered when Plaintiff made his written request that his overtime shifts be minimized or eliminated. Here, because neither party disputes that Defendants were aware of Plaintiff's disability nor that Plaintiff requested an accommodation for his MS, we immediately turn to an examination of whether Defendants engaged in the interactive process in good faith. Plaintiff's position is that Defendant Cole's denial of his request for accommodation after the August 1, 2001 meeting evidences Defendants' bad faith. The record indicates that Warden Cole denied Plaintiff's overtime request on the grounds that to do so would violate the County's obligations to the union under the collective bargaining agreement. Defs.' Ex. 130. However, at the meeting between Plaintiff, Cole and Scott, Scott indicated that the union did not object to an accommodation for Plaintiff and, in fact, requested that Plaintiff be given four weeks without overtime. Defendants argue that because Scott did not assure them that the union would not later grieve the accommodation, any agreement they made with Plaintiff excusing him from overtime would violate the CBA and would be per se unreasonable. Thus, Defendants assert that they were bound to adhere to the terms of the CBA and to deny Plaintiff's request. Given the parties' genuine disagreement on this point and the current state of the record, we find that this dispute raises genuine issues of material fact regarding Defendants' good faith efforts with regard to the interactive process. Thus, we will deny Defendants' motion for summary judgment as to Plaintiff's ADA claim.
The parties dispute which type of accommodation Plaintiff sought. In oral argument, Plaintiff claims he was only seeking a reduction or elimination of overtime for a limited period of time so that he could get enough sleep to mitigate the symptoms of his MS. Defendants claim Plaintiff was seeking an accommodation eliminating all overtime from his schedule. We need not determine at this stage precisely which accommodation Plaintiff sought.
It is well-established that ordinarily "a measure that violates a seniority system established in a collective bargaining agreement is not a `reasonable accommodation,' and thus is not required by the ADA." Kralik v. Durbin, 130 F.3d 76, 79 (3d Cir. 1997) (finding that a request to be relieved of overtime assignments was "unreasonable because it would require the employer to violate its collective bargaining agreement and run the risks that the violation entails"); see also U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 404-406 (2002) (holding "that the employer's showing of violation of the rules of a seniority system is by itself ordinarily sufficient" to prove a requested accommodation is unreasonable, but permitting a plaintiff to "show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested `accommodation' is `reasonable' on the particular facts"); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1052 (7th Cir. 1996); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995); Foreman v. Babcock Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995); Shea v. Tisch, 870 F.2d 786, 790 (1st Cir. 1989); Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987). However, as the Third Circuit noted in Kralik, a "collective bargaining agreement is not necessarily decisive because the union [and an employer] may modify the agreement" to permit violations of an agreement in certain circumstances. 130 F.3d at 81. Further, "an employer who has received proper notice cannot escape its duty to engage in the interactive process simply because the employee did not come forward with a reasonable accommodation that would prevail in litigation." Taylor, 184 F.3d at 317.
Because we will deny Defendants' motion for summary judgment for their failure to sufficiently engage in the interactive process, we also need not reach Defendants' alternative position, that even if the Court finds that Plaintiff has met his burden to establish a prima facie case, Defendant has a legitimate, nondiscriminatory reason for firing Plaintiff. See Shaner v. Synthes, 204 F.3d 494 (3d Cir. 2000) (indicating that the ADA is a burden shifting statute) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
IV.We now turn to Defendants' motion for summary judgment for Plaintiff's claim under New Jersey's Law Against Discrimination. "It is well-settled law in New Jersey that [New Jersey] state courts, in interpreting LAD, should look to federal anti-discrimination cases `as a key source of interpretive authority.'" Jones v. Aluminum Shapes, Inc., 772 A.2d 34, 40 (N.J.Super.Ct. App. Div. 2001). Thus, standards for both a prima facie case and the interactive process are virtually identical under both the ADA and the LAD. See Conoshenti v. Public Serv. Elec. Gas Co., 364 F.3d 135, 150 (3d Cir. 2004) (noting that a "prima facie case of failure to accommodate under [the LAD] requires proof" identical to that of the ADA); Armstrong v. Burdette Tomlin Mem'l Hosp., 276 F. Supp. 2d 264, 272 (D.N.J. 2003) (defining the interactive process requirement under the LAD); Tynan v. Vicinage 13 of the Superior Court of New Jersey, 798 A.2d 648, 654-58 (N.J.Super.Ct. App. Div. 2002). Therefore, for the reasons discussed above, we deny Defendants' motion for summary judgment as to Plaintiff's LAD claim as well.
For the reasons set forth above, the Court will deny Defendants' motion for summary judgment. The Court will issue an appropriate Order.