ELLIS v. PUBLIC SERVICE ELECTRIC AND GAS

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

AMANDA R. ELLIS,

□□ inall Civ. No. 2:20-CV-17893 (WIM)

PUBLIC SERVICE ELECTRIC & GAS, et al., OPINION

Defendants.

WILLIAM J, MARTINI, U.S.D.J.

This is a disability discrimination action filed by Plaintiff Amanda Ellis against her

former employer, Defendant Public Service Electric & Gas (“PSE&G”). Before the Court is

PSE&G’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. ECF

No. 69, Having reviewed the parties’ submissions, the Court decides the motion without oral

argument. See Fed, R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the reasons set forth below,

PSE&G’s motion for summary judgment is DENIED.

L FACTUAL BACKGROUND

Plaintiff began her employment with PSE&G on April 14, 2008. Final SOF 4 1.' From

2017 until her termination in April 2020, Plaintiff served as an inbound credit and collections

representative (“Inbound Position” or “Inbound Representative”). Id. Jf 8; 50. Inbound

Representatives take telephone calls from PSE&G customers regarding payment

arrangements. Jd. 4 4. These calls come in rapidly-—as soon as one call ends, another comes

into the representative’s headset immediately, Jd. Inbound Representatives previously had a

45-second pause between calls, but the pause was removed in 2019, Id.

In September 2018, Plaintiff was diagnosed with Sjogren’s disease, which is a chronic

autoimmune disorder where the immune system attacks glands that make moisture in the eyes,

mouth, and other parts of the body. /d. {/] 9-10. Plaintiff suffered a “flareup” of the disease in

August 2019, causing her to be unable to work from approximately August 5, 2019 to August

26, 2019, id, ¥ 11, Plaintiff's medical team cleared her to return to work on September 3,

2019, but stated that she “need[ed] to have access to fluids & cough drops during her entire

shift],|” and that she “need[ed] breaks in between customer calls, at least 5 min[utes] when

needed.” fd. J 12-13. Because of these restrictions (the “Requested Accommodation”),

PSE&G required Plaintiffto see a PSE&G doctor upon her return. /d. 4 13. When she returned

“Final SOF” refers to Defendant’s Reply to Plaintiff's Response and Counterstatement of Facts to Defendant’s Local

Civil Rule 56,1(a) Statement of Undisputed Facts, ECF No, 86-2.

on September 3, 2019, PSE&G’s doctor temporarily approved the Requested Accommodation

until he could assess the effectiveness of Plaintiff's new medication at a later date. Zd. 4 14.

However, that same day, Plaintiff's supervisor sent her home because she was not permitted

to return to work until PSE&G approved or denied the Requested Accommodation. Jd. 4 15;

Pl.’s Dep. 157:23-24,

On September 30, 2019, PSE&G’s Accommodations Review Committee (“ARC”)

issued a letter to Plaintiff offering her an alternative accommodation (“Modified

Accommodation”), which stated:

You submitted a request to [ARC] to have a 5 minute break between calls,

access to fluids and cough drops. As explained below, [your] request has been

granted with modifications.

ARC concluded that the medical information supports taking breaks, but not for

5 minutes after each call. However, ARC has approved, and the business can

accommodate, splitting up your 15-minute breaks into multiple 5-minute

breaks. You can use one such 5, minute break each hour. This accommodation

will be in place for 6 months — through March 31, 2020... . If you need an

extension beyond March 31, 2020, you need to email ARC ... by March 15,

2020. If you have questions, please email them to [ARC], or contact your Labor

Relations Manager, Elsa Kupratis[.]”

Def.’s Ex. 8; Final SOF 4 18.

After receiving this letter, Plaintiff spoke with Elsa Kupratis, PSE&G’s Labor

Relations Manager and a member of ARC. Final SOF 4 20; PL.’s SOF 19-20.2 Plaintiff

testified that during this conversation, Kupratis advised Plaintiff to speak with her persona!

doctor about the Modified Accommodation. fd. However, the parties dispute whether

Kupratis informed Plaintiff that her doctor was required to formally approve the Modified

Accommodation before she could return to work. Jd.

Plaintiff remained out of work until she was able to discuss the Modified

Accommodation with her doctor in mid-October 2019, Final SOF 4 21, 22. Plaintiff testified

that her doctor felt that the Modified Accommodation was fair and issued her a “return-to-

work” letter for November 1, 2019. /d. ¢ 23. Plaintiff consequently returned to work and was

put into a ten-day “refresher training,” after which she would return to taking inbound credit

and collection calls. /d. { 25. However, on November 13, 2019—eight days into the ten-day

training—Plaintiff received a call from Sedgwick, PSE&G’s absence management vendor,

who advised her to go home because her accommodation had not been approved. Jd. □ 26.

SOF” refers to Plaintiffs Response and Counterstatement of Facts to Defendant’s Local Civil Rule 56.1(a)

Statement of Undisputed Facts, ECF No, 85-1,

Sedgwick advised Plaintiff to “remain out of work until PSE&G or Sedgwick callfed] . . . to

advise of next steps[.]” fd. § 26.

On December 3, 2019, ARC issued another letter to Plaintiff} advising her that the

Requested Accommodation had been denied. fd J 27. The letter stated that ARC had

determined that Plaintiff was unable to perform the essential functions of her position, “with

or without reasonable accommodations.” Def.’s Ex. 4. The letter notified Plaintiff that job

searches would be performed for 60 days, and that ifa comparable job was found and Plaintiff

did not accept it, or if no job was found commensurate with her skill set, the matter would be

referred to jocal management. Id.

As a result of these job searches, PSE&G offered Plaintiff two teller positions. First,

in December 2019, PSE&G offered Plaintiffa teller position in Jersey City, New Jersey. Finai

SOF 32. The parties agree that Plaintiff denied the position because it would entail a salary

reduction, /d, However, Plaintiff asserts that she also declined the offer because she believed

that she had an approved accommodation—the Modified Accommodation-—and that due to

the rapid pace of customers, such an accommodation would be unworkable in a teller position

as there would not be enough time to hydrate. Pl.’s SOF § 32; PL’s Ex. 11. Then, in March

2020, Plaintiff was offered a teller position in Elizabeth, New Jersey. Final SOF 4/33. Plaintiff

accepted the offer on the condition that she would not be “locked into” the position under the

relevant collective bargaining agreements. /d. 36, Kupratis construed Plaintiff's response as

an acceptance and gave her a start date, but informed Plaintiff that she would indeed be

“locked in” to the position for one year and that PSE&G would not need to consider her for a

promotion during that time. /d. J] 38-39. ARC closed Plaintiff's case upon her acceptance,

However, Plaintiff later rejected the position because she did not want to be “locked in” for

12 months. fd. § 43.

Despite several warnings from PSE&G that Plaintiff's job search had ended and that

she would be separated from the company if she denied the teller position in Elizabeth,

Plaintiff solidified her decision to decline the position to Vito Viscomi, Manager of

Operations at PSE&G’s Call Center, on March 27, 2020. Id. 4] 34-35, 44-45. Plaintiff cited

risks regarding COVID-19 and seeing “100s of customers daily” in addition to not wanting

to be “locked in” to the position for a year. Jd. 45; Pl.’s Dep. Ex. 23. Viscomi advised

Plaintiff that all tellers were working from home until further notice to avoid the risks

associated with COVID-19, but Plaintiff affirmed her decision to decline the offer, Final SOF

46, 47. Plaintiff was ultimately terminated on April 9, 2020. Jd. ff] 48, 49. Plaintiffs

termination letter recounted the details leading up to her separation from PSE&G. Def.’s Ex.

11. The letter stated in part that PSE&G could not accommodate Plaintiff's “permanent

restriction of five (5) minute breaks between calls” for her Inbound Position, and that “[a]s a

result, job searches were performed.” /d. It then detailed Plaintiffs communications with

Kupratis and Viscomi regarding her rejection of the two teller positions but made no mention

of the Modified Accommodation. fd.

I. PROCEDURAL HISTORY

On February 12, 2020, Plaintiff filed a charge against PSE&G with the U.S. Equal

Employment Opportunity Commission (“EEOC”). The EEOC dismissed the charge and

issued a right to sue notice, which Plaintiff received on September 4, 2020. On December 3,

2020, Plaintiff filed the present action alleging violations of the Americans with Disabilities

Act of 1990 (“ADA”), 42 U.S.C. §§ 12112 to 12117, and the New Jersey Law Against

Discrimination (“LAD”), N.J.S.A. 10:5-1 ef seg., against PSE&G.? After having an

opportunity to develop the record through discovery, PSE&G moved for summary judgment

on March 24, 2023. Mov. Br., ECF No. 69. After several extensions of the response deadline

for good cause shown, Plaintiff filed her opposition brief on July 7, 2023. Opp. Br., ECF No.

85, PSE&G replied on July 28, 2023. Reply Br., ECF No. 86.

I. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper when

“the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” In deciding a motion for summary judgment, the

Court construes all facts and inferences in the light most favorable to the non-moving party.

Boyle v. Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). However, the Court may

not make credibility determinations, weigh the evidence, or draw legitimate inferences from

the facts at this stage. Anderson v. Liberty Lobby, Ine., 477 U.S, 242, 255 (1986). The moving

party bears the initial burden of showing the basis for its motion and identifying those portions

of the record which it believes demonstrate the absence of a genuine issue of material fact—

that is, the “absence of evidence to support the nonmoving party’s case,” Celotex Corp. v.

Catrett, 477 US. 317, 323, 325 (1986). Once the moving party meets this burden, the burden

shifts to the non-moving party to “come forward with specific facts showing that there is a

‘genuine issue for trial’ and do more than ‘simply show that there is some metaphysical doubt

as to the material facts.’” United States vy. Donovan, 661 F.3d 174, 185 Gd Cir. 2011) (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S, 574, 586-87 (1986)).

Furthermore, “the mere existence of some alleged factual dispute between the parties wil] not

defeat an otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48. “A fact is ‘material’

ifits existence or nonexistence might impact the outcome of the suit under the applicable

substantive law.” Santini v. Fuentes, 795 F.3d 410, 416 Gd Cir. 2015) (citing Anderson, 477

at 248), “A dispute over a material fact is ‘genuine’ if ‘a reasonable jury could return a

verdict for the nonmoving patty.’” /d. (quoting Anderson, 477 U.S. at 248).

IV. DISCUSSION

The Court first seeks to clarify the claims in Plaintiff's Complaint, which is comprised

of the District of New Jersey’s form complaint for employment discrimination cases, The

form complaint allows for a plaintiff to simply check off boxes next to the types of

3 Plaintiff also filed claims against her union that have since been dismissed.

discriminatory conduct alleged, Plaintiff checked off the following boxes: “Termination of

my employment,” “Failure to promote me,” “Failure to accommodate my disability,”

“Unequal terms and conditions of my employment,” and “Retaliation.” Compl. II(A),

PSE&G challenges Plaintiffs failure to promote and unequal terms and conditions

claims. PSE&G first notes that at her deposition, Plaintiff testified that she did not realize that

the “Failure to promote me” box was checked. Mov. Br. 3 n,.2. PSE&G also asserts that there

are no allegations on the record supporting Plaintiff's unequal terms and conditions claim. □□□

Plaintiff admits that she is not asserting a failure to promote claim, Pl.’s SOF 4 51, but does

not address PSE&G’s arguments regarding the unequal terms and conditions claim in her

opposition brief. The Court also has not identified evidence in the record to support a prima

facie case for the unequal terms and conditions claim. As such, Plaintiffs failure to promote

and unequal terms and conditions claims are abandoned. See Cohen v. BH Media Grp., Inc.,

419 F. Supp. 3d 831, 861 & n.9 (D.N.J. 2019) (noting that the record was devoid of evidence

supporting element of discrimination claim and that plaintiff “further abandon[ed] her

discrimination claim by failing to address it entirely in her opposition brief”); aecord Brenner

v. Twp, of Moorestown, No. CIV. 09-219, 2011 WL 1882394, at *11 (D.N.J. May 17, 2011).

Thus, only Plaintiff's failure to accommodate, termination, and retaliation claims under

the ADA and the LAD remain.

A. Disability Discrimination Under the ADA and the LAD

The ADA prohibits employers from discriminating against its employees on “the basis

of disability 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). “The New Jersey Law Against Discrimination

(“LAD”) similarly prohibits ‘any unlawful discrimination against any person because such

person is or has been at any time disabled or any unlawful employment practice against such

person, unless the nature and extent of the disability reasonably precludes the performance of

the particular employment.’””* Hwaga v. RWJ Univ. Hosp., No, 317CV04125, 2019 WL

13277388, at *4 (D.N.J. Oct. 16, 2019) (quoting N.J.S.A. 10:5-4.1),

The three-step burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) applies to both ADA and LAD discrimination claims, 7ourtellotte

v. Eli Lilly & Co., 636 F. App’x 831, 848 (3d Cir. 2016) (applying framework to LAD claim);

Walton v. Mental Health Ass’n. of Se. Pennsylvania, 168 F.3d 661, 667-68 (3d Cir. 1999)

(applying framework to ADA claim). “The McDonnell Douglas framework requires that the

plaintiff first establish a prima facie case of discrimination or retaliation.” Tourtellotte, 636

F, App’x at 842, Generally, “to establish a prima facie case of disability discrimination under

4 Because “New Jersey law generally tracks the [ADA and other federal discrimination statutes], and neither party

points to any divergent aspect of New Jersey law that would not follow the outcome in this casef,]” the Court will

review Plaintiffs ADA and LAD claims simultaneously, Fowler vy. AT&T, Ine., 19 F.4th 292, 298 (3d Cir. 2021),

the ADA and the LAD, a plaintiff must first demonstrate that: (1) he is disabled within the

meaning of the ADA and the LAD; (2) he is otherwise qualified to perform the essential

functions of the job, with or without reasonable accommodation; and (3) that he has suffered

an otherwise adverse employment action because of his disability.” Hwaga, 2019 WL

13277388, at *4 (citations omitted). However, “|t|he specific elements a prima facie case of

disability discrimination vary ... depending on the specific cause of action.” Tourtellotte, 636

F, App’x at 848 (citing Victor vy. State, 4 A.3d 126, 141-42 (N.J. 2010)). “If the plaintiff

successfully meets the requirements of a prima facie case, the burden then shifts to the

employer to articulate a legitimate, nonretaliatory or nondiscriminatory reason for its actions.”

Id. at 842. “Ifthe employer produces such a reason, the burden then shifts back to the piaintiff

to prove that the employer’s nonretaliatory or nondiscriminatory explanation is merely a

pretext for the discrimination or retaliation.” Jd.

B. Failure to Accommodate Under the ADA and the LAD

“Both the ADA and the LAD require an employer that is a covered entity to provide

reasonable accommodation to qualified individuals with disabilities who are employees,

unless to do so would cause undue hardship.” Hwaga, 2019 WL 13277388, at *5; see 42

ULS.C, § 12112(b\(5)(A); N.ILA.C. § 13:13-2.5(b).

Though courts have questioned whether a failure to accommodate claim can serve as

a standalone claim, Tourtellotte, 636 F, App’x at 849 n.31, they have continued to require that

plaintiffs show the “prima facie elements required in any disability discrimination claim”

before pleading the elements for a reasonable accommodation claim. Mejia v. CMC Steel US

LLC, No. 322CV01681, 2023 WL 3431216, at *4 (D.NJ. May 12, 2023); see Fowler v.

AT&T, Inc., 19 F. Ath 292, 306 (3d Cir. 2021) (holding that a failure to accommodate claim

may be viewed as a type of discrimination claim where the relevant adverse employment

action is the employer’s refusal to make reasonable accommodations for its employee’s

disabilities); Victor, 4 A.3d at 145 (“[T}he elements of the failure to accommodate claim

appear as a subset of the second prong of the ordinary prima facie case [under the LAD].”).

Accordingly, after showing an initial prima facie case of disability discrimination, a plaintiff

asserting a failure to accommodate claim under the ADA and LAD must also establish “(1)

the employer knew about the employee’s disability; (2} the employee requested

accommodations or assistance for his 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.” Hwaga, 2019 WL

13277388, at *5; see Royster v. New Jersey State Police, 152 A.3d 900, 910 (2017) (holding

that the same proofs are implicated under both the LAD and the ADA).

f, Whether the Parties Engaged in the Interactive Process in Good Faith

The parties first dispute the third element of Plaintiff's failure to accommodate claim,

namely, whether PSE&G made a good faith effort to assist Plaintiff in seeking

accommodations.

“In handling a disabled employee’s request for a reasonable accommodation, both

parties [employers and employees] have a duty to assist in the search for appropriate

reasonable accommodation and to act in good faith.” Hohider v. United Parcel Serv., Inc.,

574 F.3d 169, 187 (3d Cir. 2009) (alteration in original) (citations and internal quotation

marks omitted), The Third Circuit has acknowledged that in light of this duty, “it may be

necessary for the covered [employer] to initiate an informal, interactive process with the

qualified [employee] with a disability [in order to] identify the precise limitations resulting

from the disability and the potential reasonable accommodations that could overcome those

limitations,” /d. (quoting 29 C.F.R. § 1630.2(0)(3)). New Jersey Courts have imposed a

substantially similar duty under the LAD. See Victor, 4 A.3d at 148.

Where there is a dispute as to whether a party has fulfilled its obligation to participate

in this process, the Third Circuit has cited approvingly to the Seventh Circuit, which has held

that:

Neither party should be able to cause a breakdown in the process for the purpose

of either avoiding or inflicting liability. Rather, courts should look for signs of

failure to participate in good faith or failure by one of the parties to help the

other party determine what specific accommodations are necessary. A party that

obstructs or delays the interactive process is not acting in good faith. A party

that fails to communicate, by way of initiation or response, may also be acting

in bad faith. In essence, courts should attempt to isolate the cause of the

breakdown and then assign responsibility.

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 3d Cir. 1999) (alteration omitted)

(quoting Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.

1996)). Nevertheless, “where there is a genuine dispute about whether the employer acted in

good faith, summary judgment will typically be precluded.” /d. at 318.

In its moving brief, PSE&G asserts that it satisfied its duty to make a good faith effort

to accommodate Plaintiff by offering her the Modified Accommodation and two teller

positions, and that Plaintiff caused the breakdown in the interactive process by failing to

communicate her acceptance of the Modified Accommodation and by rejecting the teller

positions. See Mov. Br. 8-9, 12; Repiy Br. 9-13. Plaintiff in turn argues that PSE&G caused

the breakdown in the process because it did not advise Plaintiff that her doctor needed to

approve the Modified Accommodation and in fact never mentioned the Modified

Accommodation or followed up about it with Plaintiff again, Opp. Br. 16-19.

The Court finds that there is a genuine dispute of material fact as to whether PSE&G

or Plaintiff failed to uphold their respective duties to engage in the interactive process in good

faith.

a) The Modified Accommodation

Primarily, disputes exist regarding (1) whether Plaintiff was required to inform

PSE&G that her doctor approved the Modified Accommodation before returning to work; (2)

whether Plaintiff actually communicated her acceptance of the Modified Accommodation to

PSE&G; and (3) whether Plaintiff caused the breakdown in the interactive process by failing

to ask PSE&G about the Modified Accommodation once the job searches began.

Regarding the first dispute, Plaintiff argues that the “record is devoid of any written or

other notification advising Plaintiff [that] approval [of the Modified Accommodation] was

necessary.” Opp. Br. 19. Looking at ARC’s September 30, 2019 letter to Plaintiff offering her

the Modified Accommodation, there is no mention of any requirement that Plaintiff or her

doctor formally “approve” the accommodation or contact anyone at PSE&G or Sedgwick

before resuming work. Def.’s Ex. 8. Rather, the letter states that her “request has been granted

with modifications” and that “ARC has approved, and the business can accommodate,

splittng up [Plaintiffs] 15-minute breaks into multiple 5-minute breaks.” /d. The letter

continues to state that the “accommodation will be in place for 6 months” and closes by giving

Plaintiff instructions for requesting an extension and providing her with information on who

to contact with questions. Id.

However, PSE&G asserts that after Plaintiff received the September 30, 2019 letter

from ARC, Kupratis spoke with Plaintiff separately and instructed her to have her doctor

approve the Modified Accommodation before returning to work, Final SOF 20. In support

of its argument, PSE&G points to language used by Plaintiff in her deposition. However,

Plaintiff used several conflicting phrases throughout her testimony to describe her

conversation with Kupratis. First, Plaintiff testified that Kupratis advised her to “speak to

[her] doctor to see if [the Modified Accommodation] was okay[.]” PL.’s Dep. 158:3-9. Then,

she testified that Kupratis advised Plaintiff to haye her doctor look at the Modified

Accommodation to “see if it’s suitable for [her] to return to work[,.]” Pl.’s Dep. 163:15-17.

Later, however, Plaintiff began using language suggesting that Kupratis instructed Plaintiff to

have her doctor formally approve the Modified Accommodation in order to be released back

to work. See Pl.’s Dep. 185:3-4 (testifying that Kupratis “requested that [Plaintiff's] doctor

approve [the Modified Accommodation] and ifso, she c[ould] release [her] back to work”),

187:21-22 (testifying that Kupratis requested for Plaintiff to have her doctor “look over the

accommodation” and that if her doctor “agreed to it,” Kupratis could “release [her] back to

work’). Notably, the parties do not point to—and the Court has not identified—any testimony

from Kupratis regarding this conversation. As such, a genuine dispute of material fact exists

regarding whether Plaintiff was instructed to inform PSE&G that her doctor approved the

Modified Accommodation before returning to work.

Relatedly, a second dispute exists as to whether Plaintiff did in fact communicate her

acceptance of the Modified Accommodation to PSE&G. A reasonable jury could find that

Plaintiff showing up at her job and attending a training for several days sufficiently signaled

to her employer that she accepted the Moditied Accommodation and did not reject it through

silence, as PSE&G argues. Reply Br. 14. Additionally, Plaintiff testified that her doctor issued

a return-to-work letter for November I, 2019. Pl.’s Dep, 164:8-9, While such a letter was not

produced by the parties, PSE&G’s internal notes indicate that Plaintiff did inform Sedgwick

on November 13, 2019-—-the day she was removed from the training—that her doctor cleared

her to return to work on November 1, 2019. PL.’s Ex. 7 (EE advised that they had RTW full

duty 11/01/2019”), As such, a reasonable jury could find that Plaintiff did sufficiently

communicate her acceptance of the Modified Accommodation to PSE&G— either physically

by attending the training or verbally to Sedgwick.

Lastly, PSE&G raises a third dispute and argues that Plaintiff failed to uphold herown

side of the interactive process by failing to ask about the Modified Accommodation after

PSE&G started the job searches and offered her the teller positions. Mov. Br. 9-10. PSE&G

told Plaintiff twice—via the December 3, 2019 Letter and during an email conversation with

Kupratis in March 2020—that the job searches were being performed because PSE&G could

not support the Requested Accommodation. Pl.’s Exs. 8, 10; PI.’s Dep. 185:22-186:10, Upon

hearing this, Plaintiff reasonably could have inquired with PSE&G as to why the Modified

Accommodation was no longer offered. As such, a reasonable jury could find that Plaintiff

caused the breakdown in the interactive process by failing to take the initiative to ask PSE&G

about the status of the Modified Accommodation.

Both the employee and the employer have a duty to engage in the interactive process.

See Taylor, 184 F.3d at 315 (holding that the interactive process “requires the employer to

take some initiative”); Fillis v. Ethicon, Inc., No. CV 05-726, 2009 WL 10641983, at *5

(D.N.J. Nov. 13, 2009) (holding that an employer is not liable where the employee fails to

provide the employer with information necessary to devise an appropriate accommodation or

does not answer the employer’s request for more detailed proposals). On the evidence

presented here, ‘a reasonable jury could .. . conclude that either party violated the duty to

engage with good faith in the interactive process. Because genuine issues of material fact exist

on that issue, .... [a] fact-finder must settle that dispute.” Colwell v. Rite Aid Corp., 602 F.3d

495, 508 Gd Cir. 2010); see also Gomez vy, Con-Way Cent. Exp. Inc., No. CIV.A. 06-5352,

2009 WL 799243, at *9 (D.N.J. Mar. 24, 2009) (noting difficulties “inherent in definitively

concluding that one party was completely blameless during the course of an interactive

process that lasted over two years”). This is true particularly since the resolution of this

dispute requires a determination of each party’s state of mind. See Gomez, 2009 WL 799243,

at *9 (“Summary judgment should not ordinarily be granted when the action entails a

determination of a state of mind such as bad faith.” (citations, internal quotation marks, and

alterations omitted)}).

> For these reasons, PSE&G’s argument that Plaintiff was acting in bad faith by requesting an accommodation that she

did not need, Reply Br. 3, must also be reserved for the factfinder,

b) The Teller Positions

Separately, a genuine issue of material fact exists as to whether the two teller positions

offered to Plaintiff were reasonable accommodations under the ADA and LAD. Mov. Br. 10-

12. “[AJn employer may reassign an individual to a lower graded position if there are no

accommodations that would enable the employee to remain in the current position and there

are no vacant equivalent positions for which the individual is qualified with or without

reasonable accommodation.” Skerski vy, Time Warner Cable Co., 257 F.3d 273, 285 Gd Cir.

2001) (quoting EEOC Interpretive Guidance, 29 C.F.R. pt. 1630, App. 1630.2(0)); see also

Jones v, Aluminum Shapes, Inc., 772 A.2d 34, 43 (N.J. App. Div. 2001). PSE&G argues that

because there was no evidence of any other more highly paid jobs for which Plaintiff was

qualified available, the teller positions were reasonable accommodations even though they

entailed a reduction in salary. Mov. Br. 11. Refuting PSE&G’s assertion, Plaintiff contends

that there was evidence of a more highly paid job available, and thus, she was not required to

accept the teller positions, Opp. Br. 20-21.

Plaintiff cites to an email chain between Kupratis, Viscomi, and PSE&G’s Director of

Customer Support Eric Martinez to argue that PSE&G could have reasonably accommodated

her by moving her to an outbound collections position. In the email, Kupratis asks Viscomi

and Martinez whether PSE&G could support Plaintiff's Requested Accommodation. In

response, Viscomi writes, “Is this worth a job search? We can support but it’s a bit

excessive...” Pl.’s Ex. 9, However, Viscomi replies again the next day and states, “I spoke to

Christy, she’s ok with us moving [Plaintiff] to Outbound collections permanently.” □□□

PSE&G diminishes Plaintiff's citation to this email as mere speculation regarding the

availability of the position, Reply Br. 8 n.2, and suggests that the outbound position was

ultimately not available to Plaintiff by citing to a subsequent email from Viscomi informing

Sedgwick that “Unfortunately, we cannot accommodate this request{,|” Final SOF 27.

A genuine issue of material fact exists as to whether an equivalent position was

available to Plaintiff—and ultimately, whether the two teller positions offered to Plaintiff

were reasonable accommodations under the ADA and LAD-—~-because disputes still remain

as to whether the outbound position offered a comparable salary to Plaintiffs Inbound

Position, whether the duties of the outbound position allowed for sufficient breaks between

customer calls, and why PSE&G was unable to offer the position to Plaintiff.

2. Whether Plaintiff Could have been Reasonably Accommodated

The parties also dispute the fourth element of Plaintiff's failure to accommodate claim:

whether Plaintiff could have been reasonably accommodated but for PSE&G’s lack of good

faith in the interactive process. PSE&G argues that a five-minute break between customer

calls would have made it impossible for Plaintiff to take customer phone calls throughout the

® The exhibit cited by PSE&G—Ex. A to Suppl. Certif. of Sarah Wieselthier—does not appear to contain the referenced

email from Viscomi to Sedgwick on November 12, 2019. See Final SOF { 27. As such, the Court has not been able to

review this email. PSE&G provides no additional context for the email.

day, which is the essential function of her job. Mov. Br. 6. Therefore, PSE&G argues that

Plaintiffs Requested Accommodation was not reasonable, and that PSE&G was not required

to accede to it. Jd. However, Plaintiff does not suggest in its briefing that PSE&G was required

to accept the Requested Accommodation and contends only that PSE&G could have

supported the Requested Accommodation by transferring her to an outbound role. Opp. Br.

19-20. However, as discussed supra, whether such an outbound role was available to Plaintiff

presents a genuine issue of material fact reserved for the factfinder. Further, there appears to

be no dispute that Plaintiff could have also been reasonably accommodated with the Modified

Accommodation, See Reply Br. 10. As such, PSE&G’s argument regarding whether the

Requested Accommodation was reasonable appears to be irrelevant at this juncture.

Cc, Plaintiff’s Discrimination & Retaliation Claims

Lastly, PSE&G challenges Plaintiff's termination and retaliation claims. Specifically,

PSE&G asserts that under the McDonnell Douglas burden-shifting framework, both of

Plaintiff's claims fail as a matter of law because “Plaintiff was terminated from her

employment at PSE&G for the legitimate, nondiscriminatory, and nonretaliatory reason that

she rejected every reasonable accommodation of her disability that the Company offered her.”

Mov. Br. 16. As such, PSE&G argues that “[e]ven assuming Plaintiff could make out a prima

facie case of discrimination or retaliation, she could not possibly meet her ultimate burden of

proving PSE&G acted with discriminatory or retaliatory motive.” ’ Mov. Br. 18.

To defeat summary judgment at the pretext stage under the McDonnell Douglas

framework, Plaintiff must “point to some evidence, direct or circumstantial, from which a

factfinder could 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 employer’s action.” Tomasso v. Boeing Co., 445 F.3d 702, 706

(3d Cir. 2006) (citation and internal quotation marks omitted), Viewing the evidence in the

light most favorable to Plaintiff, a reasonable factfinder could disbelieve PSE&G’s asserted

reason for Plaintiff's termination. As noted supra, genuine disputes of material fact exist as

to whether Plaintiff rejected the Modified Accommodation and whether the teller positions

offered to her were reasonable accommodations. As such, Plaintiff has defeated summary

judgment at the pretext stage.

? The Court questions whether Plaintiff has established a prima facie case of retaliation, To make such a showing, a

plaintiff must establish “(1) protected employee activity; (2) adverse action by the employer either after or

contemporaneous with the employee’s protected activity; and G) a causal connection between the employee's protected

activity and the employer’s adverse action.” F.E.O.C. v, Allstate ins. Co,, 778 F.3d 444, 449 Gd 2015) (citations

and internal quotation marks omitted); see also Maddox y, City of Newark, 50 F. Supp. 3d 606, 622 (D.N.J. 2014)

(similar elements under the LAD), However, because both parties have assumed that Plaintiff has met her burden for

purposes of this motion, this issue was not fully briefed. As such, this question should be re-examined before the case is

submitted to the jury.

V. CONCLUSION

For the reasons set forth above, PSE&G’s motion for summary judgment is DENIED.

An appropriate Order shall follow.

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WILLIAM A. MARTINI, U.S.D..

Date: September Zo, 2023