HURLEY v. RIVERVIEW MEDICAL CENTER

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARIANNE HURLEY,

Plaintiff, Civil Action No. 21-2860 (GC) (RLS)

v. MEMORANDUM OPINION

RIVERVIEW MEDICAL CENTER ef al.,

Defendants.

CASTNER, District Judge

This matter comes before the Court upon Defendants Riverview Medical Center

(“Riverview”) and Hackensack Meridian Health, Inc.’s (“‘HMH”) (collectively, “Defendants”)

motion for summary judgment seeking the dismissal with prejudice of Plaintiff Marianne Hurley’s

(“Plaintiff”) Amended Complaint (ECF No. 8). (ECF No. 33.) Plaintiff opposed the motion (ECF

No. 41), and Defendants replied (ECF No. 42). After careful consideration of the parties’

submissions, the Court decides Defendants’ motion without oral argument pursuant to Local Civil

Rule 78.1. For the reasons outlined below, Defendants’ motion for summary judgment is

GRANTED.

L BACKGROUND

A. Factual Background

The Court recites only the uncontested facts necessary to contextualize the present motion.!

All other relevant or material facts in this matter are contested and will be recited where applicable

in the Court’s analysis below.

In June 1999, Plaintiff began working for Riverview’ in an administrative support role within the

Emergency Department (“ED”). (DSUMF 1; PRDSUMEF {ff 1, 6; Pl.’s Statement of Material

and Disputed Facts “(PSMDF”) ¢ 1, ECF No. 41-1; Defs.’ Response to PL.’s Statement of Material

and Disputed Facts (““DRPSMDF”) 4 1, ECF No. 42-9.) Her job responsibilities included

administrative and office responsibilities assisting both the ED Director and ED Nurse Manager.

(See PSMDF ¥ 1; DRPSMDF ¢ 1.)

At all times during her employment, Plaintiff was an at-will employee who was paid

hourly. (DSUMF 4 7; PRDSUMIF { 7.) Her usual scheduled hours were Monday through Friday,

9:00 a.m. to 5:30 p.m. (DSUMF § 8; PSMDF 63.) Over the years, Plaintiff had several direct

supervisors. (PSMDF 4 3; DRPSMDF { 3.) Most recently, Plaintiff was supervised by Tammy

Harden (“Harden”), an ED Nurse Manager. (PSMDF § 4; DRPSMDF { 4.) In the Riverview

management structure, Harden reported directly to Denise Swan (“Swan’’), the Senior Manager of

the ED. (PSMDF 9 5; DRPSMDF 4 5.) Swan in turn reported to Rebecca Graboso (“Graboso”’),

the Vice President of Nursing. (/d.)

In July 2019, Plaintiff began experiencing medical symptoms such as extreme fatigue,

facial rashes, sporadic fevers, and joint pain. (PSMDF § 15; DRPSMDF 4 15.) As these symptoms

worsened, she applied for, and was granted, continuous leave under the Family and Medical Leave

Act (“FMLA”) through Riverview’s independent third-party administrator, The Hartford

(“Hartford”). (DSUMF 97 13, 14; PRDSUMF {J 13, 14; PSMDF 4 14; DRPSMDF § 14.) In

? Riverview is a hospital within the HMH healthcare system. (Defs.’ Statement of Undisputed

Material Facts (““DSUMF”) § 2, ECF No. 33-2; Pl.’s Responses to Defs.’ Statement of Undisputed

Material Facts (“PRDSUMF’) 4] 2, ECF NO. 41-2.)

November 2019, Plaintiff's FMLA leave concluded, and she returned to work. (DSUMF 16;

PRDSUMF § 16.)°

In March 2020, Plaintiff missed additional time from work and was hospitalized for what

doctors believed was lupus. (PSMDF {ff 16-19; DRPSMDF {ff 16-19.) Plaintiff did not

immediately request FMLA leave. (PSMDF ff 16-22; DRPSMDF | 16-22.) In October 2020,

however, Plaintiff contacted Hartford to apply for intermittent FMLA-leave after officially being

diagnosed with lupus. (PSMDF 4 21-22; DRPSMDF 4 21-22; see also PSMDF § 18; DRPSMDF

{ 18 (disputing details of Plaintiff's communications about her illness, but not disputing that

Plaintiff was seeking treatment for lupus).) Hartford approved Plaintiff's proposed FMLA leave

for the days of October 22, October 23, October 27, November 5, November 20, and December 3,

2020. (PSMDF § 25; DRPSMDF { 25.)

Around the time that Plaintiff requested intermittent FMLA-leave, Riverview was taking

certain precautions related to the pandemic. (DSUMF § 23; PRDSUMF { 23; PSMDF § 29;

DRPSMDF 29.) Specifically, Riverview assigned all available employees, including Plaintiff, to

assist with fit-testing employees for respirators and state-mandated screening procedures.*

(DSUMF § 23; PRDSUMF § 23.) In response, Plaintiff expressed discomfort regarding Covid-19

exposure. (DSUMF f 24; see PRDSUMF § 24.) Plaintiff communicated her discomfort to Harden

and requested to be excused from duties that might exposure her to Covid-19. (See PSMDF 31;

DRPSMDF 31.)

3 While at Riverview, Plaintiff applied for and received FMLA leave in 2001, 2003, 2013, and

2017, in addition to her FMLA leave in 2019. (DSUMF § 11; PRDSUMF 4 11.)

These screening procedures included asking hospital visitors questions and taking temperatures

at the entrance of the hospital. (DSUMF 4 23; PRDSUMEF 23.)

In emails dated October 20, 2020, Swan communicated with various managers as to

whether Plaintiff needed to obtain an accommodation through Human Resources (“HR”) in order

to be excused from her job duties related to Covid-19.° (PSMDF 99 35-39; DRPSMDF 35-39.)

Management concluded that if Plaintiff had “a medical reason [that prevented her from being]

deployed for several hours a week, then she need[ed] to go to HR and request an accommodation.”

(PSMDF { 36; DRPSMDF 36.) Plaintiff never contacted HR regarding an accommodation for

any Covid-19-related assignments. (DSUMF § 28; PRDSUME { 28.) Regardless, Plaintiff never

took anyone’s temperature at the door, nor did Plaintiff engage in any fit-testing. (DSUMF 4 31,

32; PRDSUMF 4f 31, 32.) Plaintiff was not disciplined for failing to perform these duties.

(DSUMF §f 28, 32; PRDSUMF {ff 28, 32.)

Separately, in the fall of 2020, HR for Riverview conducted an investigation regarding

Plaintiffs time and attendance. (See DSUMF 4 20, 22, 40; PRDSUMEF 4 20, 22, 40.) Defendants’

investigation concluded with a finding that Plaintiff was receiving pay for hours she did not work.

(DSUME 4 20, 44, 50.) Plaintiff had a duty to review her paystubs and report any payment errors

under company policy, and at no time during her employment with Riverview did Plaintiff report

any overpayments by Riverview for unearned compensation. (DSUMF {f 42-43; PRDSUMF

42-43.)

On November 23, 2020, after analyzing data pertaining to Plaintiff's hours, HR met with

Plaintiff regarding allegations of improperly recorded time, known as “theft of time.’® (See

> To be clear, Plaintiff's managers were considering Plaintiff's request to be medically

accommodated from Covid-19-related job responsibilities while at work because of a medication

she was taking, not whether Plaintiff should be required to perform Covid-19-related job

responsibilities during her approved FMLA leave. (See PSMDF ff 32-34; DRPSMDF ff 32-34.)

° Officially, the infraction Plaintiff was terminated for was “[m]isappropriation, theft, unauthorized

possession or misuse of property belonging to HMH or any team member, patient or HMH visitor.”

(DSUMF 7 48; PRDSUMF 48.)

DSUMF ff 20, 45, 48; PRDSUMEF 4 20, 45, 48; PSMDF 491; DRPSMDF 91.) After speaking

with Plaintiff, Mary Mueller (“Mueller”), the HR investigator for Plaintiffs case, issued a Level

II disciplinary notice under HMH guidelines. (DSUMF 4 44, 46; PRDSUMEF 46.) Thereafter,

Plaintiff was suspended pending a final investigatory review, and she was instructed to gather any

evidence she may have for presentation at her forthcoming disciplinary review meeting. (DSUMF

49; PRDSUMF § 49.) Plaintiff did not submit any evidence that she was in fact working during

the times in question or that she properly reported her absences. (DSUME 4 50; PRDSUMEF §[ 50.)

Furthermore, at her disciplinary review meeting, Plaintiff offered no witnesses and no

documentary evidence to contradict HR’s investigative findings that Plaintiff engaged in theft of

time. (DSUMF 4 51; PRDSUMF 9 51.)

On November 30, 2020, following her disciplinary review hearing, Plaintiff's suspension

was upheld, and she was terminated for gross misconduct. (DSUMF 4 52; PRDSUMF 4 52.) On

December 3, 2020, Plaintiff was mailed a formal termination notice. (PSMDF § 98; DRPSMDF

498.) Plaintiff never appealed her termination pursuant to HMH’s internal dispute resolution

policy. (DSUMF 56, 58; PRDSUMF 4 56, 58; Mueller Certification § 16, ECF No. 33-42.)

B. Procedural Background

On February 18, 2021, Plaintiff filed her original Complaint in this Court. (Compl., ECF

No. 1.) On May 5, 2021, Plaintiff filed an Amended Complaint, which is the operative Complaint

in this matter. (Am. Compl., ECF No. 8.) Plaintiff's Amended Complaint brings three groups of

claims against Defendants: 1) Violations of the FMLA; 2) Violations of the New Jersey Law

against Discrimination (the “NJLAD”); and 3) Violations of the Americans with Disabilities Act

(the “ADA”). (Am. Compl. {§ 65-80.) These three groups are comprised of ten distinct counts: (1)

FMLA-interference; (2) FMLA-retaliation; (3) disability discrimination under the ADA;

(4) disability discrimination under the NJLAD; (5) retaliation under the ADA; (6) retaliation under

the NJLAD; (7) failure to accommodate under the ADA; (8) failure to accommodate under the

NJLAD; (9) hostile work environment under the ADA; and (10) hostile work environment under

the NJLAD. Ud.) Defendants move for summary judgment on all counts. (Defs.’ Moving Br. 1,

ECF No. 33-1.)

Il. LEGAL STANDARD

The Federal Rules of Civil Procedure provide that summary judgment should be granted

“if 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.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir.

2000). In deciding a motion for summary judgment, a court must construe all facts and inferences

in the light most favorable to the nonmoving party. See Boyle v. County of Allegheny, 139 F.3d

386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine dispute

of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “[W]ith

respect to an issue on which the nonmoving party bears the burden of proof... 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.” Jd. at 325.

Once the moving party has met that threshold burden, the nonmoving party “must do more

than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present

actual evidence that creates a genuine dispute as to a material fact for trial. Anderson, 477 U.S. at

248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which nonmoving party must

rely to support its assertion that genuine disputes of material fact exist). “[U]nsupported allegations

pleadings are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,

912 F.2d 654, 657 (3d Cir. 1990). If the nonmoving party has failed “to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial, .. . there can be ‘no genuine [dispute] of material fact,’ since a

complete failure of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5

(3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

In deciding a motion for summary judgment, the Court’s role is not to evaluate the evidence

and decide the truth of the matter but to determine whether there is a genuine dispute for trial.

Anderson, 477 U.S. at 249. Credibility determinations are the province of the fact finder. Big Apple

BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), The summary judgment

standard, however, does not operate in a vacuum. “[I]n ruling on a motion for summary judgment,

the judge must view the evidence presented through the prism of the substantive evidentiary

burden.” Anderson, 477 U.S. at 254.

I. DISCUSSION

While Plaintiff brings ten distinct counts under the FMLA, ADA, and NJLAD, this Court’s

analysis of many of these claims overlaps. Specifically, the Court’s analysis of Plaintiff’s

retaliation and discrimination claims, all of which are subject to the McDonnell-Douglas burden

shifting framework, rely on similar factual arguments by the parties. Canada v. Samuel Grossi &

Sons, Inc., 49 F.4th 340, 346 n.36 (3d Cir. 2022) (stating that the McDonnell-Douglas framework

applies to ADA and FMLA retaliation claims); Grande v. Saint Clare’s Health Sys., 164 A.3d

1030, 1042 (N.J. 2017) (applying McDonnell-Douglas framework to NJLAD discrimination

claims); Holmes-Mergucz v. Cellco P’ship, No. 18-11816, 2021 WL 3163985, at *4 (D.N.J. July

27, 2021) (finding that the McDonnell-Douglas framework applies to ADA discrimination and

NJLAD discrimination claims (collecting cases)). For conceptual ease, therefore, the Court will

first conduct one full analysis of Plaintiffs FMLA-retaliation claim under the McDonnell-Douglas

framework, and then the Court will rely on the same McDonnell-Douglas analysis to resolve

Plaintiff's other retaliation or discrimination claims.

Accordingly, the Court considers four subsets of Plaintiff’s claims: (1) Plaintiff's FMLA

claims (both interference and retaliation); (2) Plaintiff's remaining retaliation claims; (3) Plaintiff's

failure to accommodate claims; and (4) Plaintiff's hostile work environment claims. The Court

will analyze each subset of claims in turn.

A. Plaintiff's FMLA Claims

Plaintiff brings two theories of FMLA-violation against Defendants: interference and

retaliation. (Am. Compl. {9 65-70.) “An employer may be sued under the FMLA for interfering

with an employee’s FMLA rights, as well as for retaliating against an employee who exercises

rights under the FMLA.” Marsh v. GGB, LLC, 455 F. Supp. 3d 113, 121 (D.N.J. 2020) (quoting

Caruso v. Bally's Atl. City, No. 16-5021, 2019 WL 4727912, at *5 (D.N.J. Sept. 27, 2019)); see

also Callison v. City of Philadelphia, 430 F.3d 117, 119 Gd Cir. 2005) (outlining the FMLA’s

interference and retaliation provisions). “[F]iring an employee for a valid request for FMLA leave

may constitute interference with the employee’s FMLA rights as well as retaliation against the

employee.” Erdman v. Nationwide Ins. Co., 582 F.3d 500, 510 (3d Cir. 2009). For the reasons

outlined below, the Court grants Defendants’ motion for summary judgment as to both Plaintiff's

FMLA-interference and FMLA-retaliation claims.

i. FMLA Interference

The FMLA “prohibits an employer from ‘interfer[ing] with, restrain[ing], or deny[ing] the

exercise of or the attempt to exercise, any right’ that it guarantees.” Marsh, 455 F. Supp. 3d at 121

(alterations in original). To prevail on an interference claim, a plaintiff must show that: “(1) [she]

was an eligible employee under the FMLA; (2) the defendant was an employer subject to the

FMLA’s requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice

to the defendant of [her] intention to take FMLA leave; and (5) the plaintiff was denied benefits to

which [she] was entitled under the FMLA.” Chance v. St. Michael’s Med. Ctr., No. 22-4526, 2023

WL 157585, at *2 (D.N.J. Jan. 11, 2023) (quoting Ross v. Gilhuly, 755 F.3d 185, 191-92 (Gd Cir.

2014)). Importantly, “[t]he FMLA . .. does not provide employees with a right against termination

for a reason other than interference with rights under the FMLA.” Lichienstein vy. Univ. of

Pittsburgh Med. Ctr., 691 F.3d 294, 312 (3d Cir. 2012) (internal quotation marks and citation

omitted). As such, where a defendant can show that a plaintiff was terminated for a reason other

than interference with the plaintiffs FMLA rights, the plaintiffs interference claim fails. □□□

(collecting cases).’

Defendants in moving for summary judgment on Plaintiff’s interference claim argue that

Plaintiff failed to establish that her termination was related to her exercise of FMLA rights. (Defs.’

Moving Br. 12, ECF No. 33-1.) Instead, Defendants argue, Plaintiff was terminated for reasons

wholly unrelated to Plaintiff's medical leave. Ud. at 12-13.) Specifically, Defendants argue that

the record establishes as undisputed fact that:

7 Unlike with an FMLA-retaliation claim, an FMLA-interference claim is not about discrimination,

and as such, the McDonnell-Douglas burden shifting framework does not apply to a Court’s

FMLA-interference analysis. Capps v. Mondelez Glob., LLC, 847 F.3d 144, 155 (3d Cir. 2017)

(quoting Sommer v. Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006)).

[1] [t]he demands of Covid]-19] triggered a [review by Defendants’ ]

Finance Department (‘Finance’). . .; which identified concerns

regarding Plaintiffs productivity and hours . . .; [2] [a]n

investigation was undertaken by HR in response . . .; [3] [t]he

investigation included review of Plaintiff's time records, as well as

building and garage swipes and an interview with Plaintiff. . .;

[4] Plaintiff provided no evidence that she was in fact working

during the times in question or that she had properly reported her

absences . . .; [5] [t]he investigator concluded that Plaintiff often was

not even on the premises during her assigned work hours, and

collected pay for hours that she did not work in violation of

[company] policy . ..; [6] Riverview consistently terminates

employees who are found to have engaged in theft of time . . .; and

[7] [c]onsistent with policy and practice, a decision was made to

terminate Plaintiff for [her] misconduct.

(Ud. (citing Feher Certification, Ex. 12, ECF No. 33-15; Feher Certification, Ex. 6, Harden Dep.

134:6-135:9, 159:7-160:8, ECF No. 33-9; Feher Certification, Ex. 7, Mueller Dep. 192:22-193:7,

197:22-199:21, ECF No. 33-10; Feher Certification, Ex. 13, ECF No. 33-16; Feher Certification,

Ex. 14, ECF No. 33-17; Feher Certification, Ex. 15, ECF No. 33-18; Feher Certification, Ex. 18,

ECF No. 33-21; Feher Certification, Ex. 19, ECF No. 33-22).)

In opposition, Plaintiff appears to argue that the temporal proximity between Plaintiffs

termination and her requested FMLA leave creates a genuine dispute of material fact that a jury

must decide. (Pl.’s Opp’n Br. 35, ECF No. 41.) Specifically, Plaintiff maintains that a jury may

conclude “that the fact that [Plaintiff] just took a block of FMLA [leave] in 2019 (for 12 weeks)

was cause for concern when she sought to go out again in 2020.” Ud. (emphasis in original).) In

making this argument, Plaintiff cites only one exhibit, which is Hartford’s approval of her

FMLA-leave request in October 2020. Ud at 36.) Plaintiff cites no evidence suggesting

Defendants were concerned with Plaintiff taking FMLA leave in 2019 or 2020. Indeed, Plaintiff's

FMLA-leave request was granted. (Feher Certification, Ex. 20, ECF No. 33-23.) Nor does Plaintiff

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identify any evidence to suggest that Plaintiffs termination was the result of Defendants’ desire

to prevent her from continuing to take FMLA leave.

Ultimately, the metaphysical doubt that Plaintiff seeks to introduce to establish a genuine

dispute of material fact, i.e. that temporal proximity alone suggests Plaintiff was terminated due to

her FMLA-leave request, falls against Defendants’ overwhelming evidence that Plaintiff was fired

due to an investigative finding of “theft of time” and for a failure to report that she was being

overpaid. (Feher Certification, Ex. 12; Feher Certification, Ex. 6, Harden Dep. 134:6-135:9, 159:7-

160:8; Feher Certification, Ex. 7, Mueller Dep. 192:22-193:7, 197:22-199:21; Feher Certification,

Ex. 13; Feher Certification, Ex. 14; Feher Certification, Ex. 15; Feher Certification, Ex. 18; Feher

Certification, Ex. 19; see also Matsushita, 475 U.S. at 586 (finding that on summary judgment,

once the moving party has met its evidentiary burden the nonmoving party “must do more than

simply show that there is some metaphysical doubt as to material facts”).) As such, Plaintiff failed

to establish that a genuine dispute of material fact remains as to her FMLA-interference claim.

Accordingly, Defendants’ motion for summary judgment on Plaintiff's FMLA-interference claim

is granted.

il. FMLA Retaliation

To prevail on an FMLA-retaliation claim, an employee must show that: “(1) [she] invoked

[her] right to FMLA-qualifying leave[;] (2) [she] suffered an adverse employment decision[;] and

(3) the adverse action was causally related to [her] invocation of rights.” Chance, 2023 WL

157585, at *3 (internal quotation marks and citation omitted). “Because FMLA retaliation claims

require proof of the employer’s retaliatory intent, courts have assessed these claims through the

lens of employment discrimination law.” Lichtenstein, 691 F.3d at 302. Accordingly, as

aforementioned, the Court applies the McDonnell-Douglas burden shifting framework to assess

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Plaintiffs FMLA-retaliation claim. Jd. (citing AfcDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973)); see also Canada, 49 F.4th at 346 n.36 (confirming that Lichtenstein established that the

McDonnell-Douglas framework is utilized to evaluate FMLA-retaliation claims in the Third

Circuit).

Under the McDonnell-Douglas framework, a plaintiff has the initial burden of establishing

a prima facie case of retaliation. Lichtenstein, 691 F.3d at 302. “To do so, she must point to

evidence in the record sufficient to create a genuine factual dispute about each of the three elements

of her retaliation claim: (a) invocation of an FMLA right[;] (b) termination[;] and (c) causation.”

Id. (citations omitted). If the plaintiff can do so, the burden of production shifts to the defendant

to “articulate some legitimate, nondiscriminatory reason” for its decision to terminate the plaintiff.

Id. (internal quotation marks omitted) (quoting McDonnell Douglas, 411 U.S. at 802)). If the

defendant then meets its burden, plaintiff “must point to some evidence, direct or circumstantial,

from which a factfinder could reasonably . . . disbelieve [the defendant’s] articulated legitimate

reasons” Jd, (internal quotation marks omitted) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir. 1994)). In other words, and critically, the plaintiff must “show by a preponderance of the

evidence that the employer’s explanation [for terminating the plaintiff] is pretextual.” Fuentes, 32

F.3d at 764.

a. The First McDonnell-Douglas Shift: Plaintiff?s prima

facie case of FMLA-retaliation

Defendants first contend that Plaintiff fails to establish a prima facie case of retaliation at

the first shift of the McDonnell-Douglas analysis. (Defs.” Moving Br. 16.) Specifically, Defendants

argue that “[n]o reasonable fact-finder could find a causal connection between Plaintiff's request

for FMLA leave and her termination.” (/d.) In response, Plaintiff argues that temporal proximity

creates “factual issues for a jury.” (PI.’s Opp’n Br. 33-34 (“The timing between [Plaintiff's] FMLA

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application in October of 2020 and her separation in November of 2020 creates factual issues for

a jury.”).) Plaintiff also argues that the record contains evidence that Defendants harbored

antagonism towards Plaintiff, which creates a genuine dispute of material fact as to whether the

cause of Plaintiffs termination was her request for FMLA leave. Jd. at 34 (pointing to evidence in

the record that Swan criticized Plaintiff about her whereabouts and arguing that such criticisms

evidence “significant antagonism” toward Plaintiff and her taking FMLA leave).

“To demonstrate a causal connection [at the prima facie stage of the McDonnell-Douglas

framework, a] plaintiff generally must show ‘either (1) an unusually suggestive temporal proximity

between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism

coupled with timing to establish a causal link.’” Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d

245, 258 (3d Cir. 2014) (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d

Cir. 2007)). “Evidence of temporal proximity alone is sufficient to establish causation only ‘[i]n

certain narrow circumstances.’” Howard v. County of Monmouth, No. 16-6624, 2019 WL

2710791, at *9 (D.N.J. June 28, 2019) (quoting Marra v. Phila. Hous. Auth., 497 F.3d 286, 302

(3d Cir. 2007)). Examples of where courts in the Third Circuit found temporal proximity sufficient

to establish causation include where a defendant:

[1] decid[ed] to replace the plaintiff during the plaintiffs FMLA

leave and inform[ed] the plaintiff that she had been replaced two

days after her FMLA leave ended; [2] terminat[ed] the plaintiff less

than a week after the plaintiff invoked her right to FMLA leave;

[3] terminat[ed] the plaintiff several days after the plaintiff took

FMLA leave; and [4] terminat[ed] the plaintiff three months after

requesting FMLA leave and the day she was scheduled to return to

work.

/d. (internal citations omitted).

For purposes of the Court’s analysis, the Court assumes, without a deeper analysis, that

Plaintiff can establish an “unusually suggestive temporal proximity” between her termination and

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her FMLA-leave request because the investigation into Plaintiff's time reporting commenced only

eleven days after Plaintiff testified that she informed Harden she was going to request FMLA

leave. (Pl.’s Opp’n Br., Ex. B 63:11-20, 263:4-22, ECF No. 41-5.) As such, the Court moves to

the second shift.

b. The Second McDonnell-Douglas Shift: Defendants’

legitimate, nondiscriminatory reason for Plaintiff’s

termination

Defendants set forth a clear narrative as to a legitimate, nondiscriminatory reason they

terminated Plaintiff. Defendants provide evidence to suggest that in September 2020, Riverview

sought to control productivity, expenses, and labor distribution as Riverview struggled under the

demands of Covid-19. (Feher Certification, Ex. 6, Harden Dep. 134:7-135:9, 211:9-212:2; see

Feher Certification, Ex. 25, ECF No. 33-28.) As a result, Defendants maintain, Finance conducted

an internal review of employee payroll to see if Defendants could cut costs. (See id.) That internal

review, memorialized in an October 19, 2020 e-mail correspondence to Harden and others,

identified discrepancies in Plaintiff's pay. (Feher Certification, Ex. 12.) Defendants then provide

evidence that Finance asked Harden and HR to look into whether Plaintiff was improperly

reporting her hours because management could not explain the discrepancies Finance identified.

(See Feher Certification, Ex. 6, Harden Dep. 159:7-18; Feher Certification, Ex. 12.)

Defendants provide evidence that their investigation revealed that Plaintiff was

overreporting her hours and collecting pay for hours she did not work. (Feher Certification, Ex.

14; see also Feher Certification, Ex. 7, Mueller Dep. 192:22-195:22; Feher Certification, Ex. 13;

Feher Certification, Ex. 15.) Some of these identified infractions occurred in January and June

2020, untethered from any FMLA-leave request. (Feher Certification, Ex. 14; Feher Certification,

Ex. 15.) Importantly, Defendants note, to the extent Plaintiff argues that Plaintiff could not collect

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wages for hours she did not work because Harden, not Plaintiff, inputted Plaintiffs hours into the

payroll system each week, Riverview company policy mandates that Plaintiff review her paystubs

and report any payment errors to management. (Defs.’ Moving Br. 22 n.5; DSUMF {ff 42-43;

PRDSUMF {§ 42-43; Feher Certification, Ex. 14; Feher Certification, Ex. 16 (noting “[i]f a team

member believes there is a discrepancy [with her pay], he or she must immediately report the

discrepancy to their leader so the appropriate corrections can be made.) Plaintiff admits she never

did so. (DSUMF fff 42-43; PRDSUMF {ff 42-43.)

Based on HR’s findings that Plaintiff was collecting wages for hours she did not work, in

November 2020, HR issued a Level II disciplinary notice, which, under company policy, can

justify termination. (Feher Certification, Ex. 14; Feher Certification, Ex. 17.) Plaintiff was

suspended pending a final investigatory review, and Plaintiff was instructed to gather evidence to

rebut Defendants’ findings at the meeting. (Feher Certification, Ex. 14.) In response, Plaintiff

offered no witnesses in her defense nor any documentary evidence to contradict Defendants’

investigative findings. (Feher Certification, Ex. 7, 176:22-178:13, 194:15-196:10 (providing

Mueller’s testimony that Plaintiff stated she had post-it notes to prove that she told Harden she

would be absent on certain days or times, but that Plaintiff never produced such notes); see also

Defs.’ Moving Br. 22 n.5 (noting that “Plaintiff... did not produce a single [piece] of evidence

that her time discrepancies were reported to” Harden as she alleged in her Amended Complaint

and further noting that Plaintiff produced “no emails, no texts, no other records, and no witnesses

... at her disciplinary review meeting”); Pl.’s Opp’n Br., Ex. BB, ECF No. 41-31 (providing a

solitary text message from June 2020 that Plaintiff texted Harden she may be late because she was

sick).) As such, Plaintiff was terminated for gross misconduct. (Feher Certification, Ex. 18.)

Plaintiff did not appeal her termination. (Mueller Certification J 16.)

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In sum, Defendants provide a consistent narrative, with supporting evidence, that Plaintiff

was terminated for theft of time and failing to report overpayment. As such, under the

McDonnell-Douglas framework, the burden shifts back to Plaintiff to “show by a preponderance

of the evidence that the employer’s explanation [for terminating the plaintiff] is pretextual.”

Fuentes, 32 F.3d at 764.

c. The Third McDonnell-Douglas Shift: Plaintiff's rebuttal

of Defendants’ legitimate reasons for terminating

Plaintiff

Plaintiff fails to provide evidence upon which a factfinder could reasonably conclude that

Defendants’ stated legitimate reason for terminating Plaintiff was pretextual. A plaintiff can show

that a defendant’s stated reason for termination is a pretext for FMLA discrimination in either of

two ways: “(1) [s]he can discredit defendant’s proffered reason; or (2) [s]he can offer evidence

that discrimination more likely than not was a motivating or determinative factor in the adverse

action.” Kancherla v. Lincoln Tech. Inst., Inc., No. 14-7784, 2018 WL 922126, at *13 (D.N.J. Feb.

15, 2018) (citing Fuentes, 32 F.3d at 764). Here, Plaintiff seeks to discredit Defendants’ proffered

reason for her termination, theft of time and violation of company policy. (See Pl.’s Moving Br.

13-14.)

“To discredit the employer’s proffered reason . . . [a] plaintiff cannot simply show that the

employer’s decision was wrong or even mistaken, since the factual dispute at issue is whether

discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent,

or competent.” Fuentes, 32 F.3d at 765. Instead, a plaintiff must “demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in [Defendants’] proffered

legitimate reasons for [their] action that a reasonable factfinder could rationally find them

unworthy of credence, and .. . infer that [Defendants] did not act for the asserted non-

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discriminatory reasons.” Griffith v. PNC Bank, No. 13-5407, 2015 WL 2400222, at *7 (D.N.J.

May 20, 2015) (internal quotation marks and citation omitted); see also Canada, 49 F 4th at 347.

This standard places a difficult burden on the plaintiff in arguing for pretext. Fuentes, 32 F.3d at

765.

The Court’s obligation at this shift in the McDonnell-Douglas framework is to “consider a

broad array of evidence, including antagonism by the employer, inconsistencies in the reasons the

employer gives for its adverse action, and any other evidence suggesting that the employer had a

retaliatory animus when taking the adverse action.” Canada, 49 F.4th at 347 (internal quotation

marks and citations omitted). In doing so, courts must look to “the totality of the circumstances to

determine whether an employer’s proffered nondiscriminatory reason is pretext for a

discriminatory motive.” Id.

Upon review of the record® and consideration of the parties’ arguments, the Court

concludes that Plaintiff failed to carry her burden to rebut, by a preponderance of the evidence,

Defendants’ stated legitimate reasons for terminating Plaintiff. First, while Plaintiff provides some

testimonial evidence to suggest that Harden or other team members employed by Defendants

expressed antagonism towards Plaintiff, none of Plaintiff's proffered evidence reasonably suggests

The limited substantive briefing Plaintiff offers in her Opposition brief as to pretext in the context

of FMLA-retaliation is sufficient only to establish a prima facie case of pretext. (See Pl.’s Opp’n

Br. 33-34; see also Budhun, 765 F.3d at 258.) As such, the Court relies on Plaintiffs “Evidence

of Pretext” section in her Opposition brief in evaluating the third shift under the McDonnell-

Douglas framework because it is the only place in Plaintiff's briefing where Plaintiff argues

expressly under the third shift of the framework. (Pl.’s Opp’n Br. 13-18 (correctly noting that in

“the third and final stage [of the McDonnell-Douglas framework the burden of production shifts

back to the employee .. . to prove by a preponderance of the evidence that the legitimate

nondiscriminatory reason articulated by the defendant was not the true reason for” Plaintiffs

termination).)

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that such antagonism was the result of Plaintiff requesting FMLA leave. (Pl.’s Opp’n Br., Ex. Z,

ECF No. 41-29.)?

Second, as documented above, Defendants set forth a clear and consistent narrative for

terminating Plaintiff: theft of time and failure to report being paid for hours she did not work, in

violation of company policy. Significantly, Plaintiff does not point to any inconsistencies in

Defendants’ narrative, and the Court cannot independently discern any inconsistencies in

Defendants’ asserted reasons for firing Plaintiff that might suggest pretext.

Finally, the Court considers any other evidence that Plaintiff can provide suggesting

Defendants harbored retaliatory animus against her for exercising her FMLA rights. Canada, 49

F.4th at 347 (noting as a catchall that courts are to consider “any other evidence suggesting that

the employer had a retaliatory animus when taking [an] adverse action” like terminating the

plaintiff). To this end, Plaintiff makes two arguments: (1) that Defendants lack evidence regarding

the falsification of Plaintiff's hours, suggesting Plaintiff's termination was pretextual; and (2) that

the temporal proximity between Plaintiff's FMLA leave and termination suggests Defendants’

stated reason for terminating Plaintiff is pretextual. (See Pl.’s Moving Br. 14-18.) Simply put, a

juror could not reasonably conclude that either of these arguments establishes that Defendants

harbored retaliatory animus for Plaintiff because she sought FMLA leave.

Plaintiff cites to one exhibit in the record, Exhibit Z, as evidence of “significant animosity” by

Defendants towards Plaintiffs intermittent FMLA-leave. Exhibit Z, however, is Plaintiffs

handwritten notes indicating Plaintiffs own belief that Swan was upset with her for not providing

a written request for accommodations from her Covid-19 job responsibilities. (See Pl.’s Opp’n Br.,

Ex. Z.) Such evidence does not speak to whether Swan or anyone in Riverview management

harbored animosity for Plaintiff because she took FMLA leave or that she made a request to take

FMLA leave. Furthermore, to the extent that such testimonial evidence suggests animosity towards

Plaintiff for seeking medical accommodations from her Covid-19 related work responsibilities,

such limited evidence of animosity is not sufficient to overcome Defendants’ substantiated

legitimate reason for terminating Plaintiff at the third shift of the McDonnell-Douglas framework.

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First, Plaintiff argues that Defendants offer no evidence that Plaintiff falsified her time

records, and as such, Defendants’ stated reason for terminating Plaintiff is clearly pretextual. The

record suggests otherwise. As noted, there is substantial evidence in the record that could lead

Defendants to conclude that Plaintiff was either falsifying her hours or that she failed to report that

she was being overpaid. (Feher Certification, Mueller Dep. 192:22-193:7; Feher Certification, Ex.

12; Feher Certification, Ex. 14 (containing an email, and accompanying documentation

evidencing, that in a sampling of four random weeks in January, June, and October 2020, Plaintiff

collected “wages for 86.2 hours that she was not physically present in the building ... and did not

work, equating to approximately $2[,]317”).) In fact, the evidence in the record, if anything,

suggests it is Plaintiff, not Defendants, who is unable to offer any evidence regarding the

allegations that she falsified her time. (Feher Certification, Ex. 7, 176:22-178:13, 194:15-196:10.)

In any event, even if Defendants were ultimately incorrect that Plaintiff falsified her hours or failed

to report her overpayments, “[t]o discredit the employer’s proffered reason . . . [a] plaintiff cannot

simply show that the employer’s decision was wrong or even mistaken.” Fuentes, 32 F.3d at 765.

For these reasons, Plaintiffs contention that Defendants can offer no evidence that Plaintiff

falsified her time records is contradicted by the record and does not demonstrate any

discriminatory animus or pretext.

Second, Plaintiff contends that she was only terminated after she applied for intermittent

FMLA-leave and after the entire executive management team knew about Plaintiff's FMLA-leave

request. (PI.’s Opp’n Br. 14, 17.) As such, Plaintiff appears to argue that the temporal proximity

between her termination and her FMLA-leave request shows that Defendants’ justifications for

Plaintiffs termination are pretextual and motivated by retaliatory animus. Importantly, however,

temporal proximity alone cannot establish pretext in this Circuit. Houston vy. Dialysis Clinic, Inc.,

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No. 13-4461, 2015 WL 3935104, at *1, 11 (D.N.J. June 26, 2015) (finding that a plaintiff “cannot

rely solely on temporal proximity to show pretext at the summary judgment stage); see also

Menekse v. Harrah’s Chester Casino & Racetrack, 649 F. App’x 142, 146 (3d Cir. 2016) (finding

that allegations of temporal proximity where a plaintiff was terminated one week after an FMLA

request were not, alone, sufficient to establish pretext). Therefore, even if Plaintiff makes a

showing of temporal proximity, Plaintiff cannot show pretext by a preponderance of the evidence

where Plaintiff has offered no other evidence suggesting retaliatory animus by Defendants.

Accordingly, for the reasons outlined above under the McDonnell-Douglas burden shifting

framework, Plaintiff failed to show by a preponderance of the evidence that Defendants’ stated,

legitimate reason for terminating Plaintiff was pretextual. Accordingly, Defendants’ motion for

summary judgment on Plaintiff's FMLA-retaliation claim is granted.

B. Remaining Retaliation and Discrimination Claims

Defendants’ motion for summary judgment on Plaintiff's remaining retaliation and

discrimination claims under the ADA and NJLAD boils down to whether Plaintiff can show, by a

preponderance of the evidence, that Plaintiff's lupus disability or request for medical

accommodations led to her termination. To be clear, even if this Court assumes that Plaintiff can

set forth prima facie cases for ADA disability discrimination, NJLAD disability discrimination,

ADA accommodation retaliation, and NJLAD accommodation retaliation, Defendants proffer the

same legitimate reason for terminating Plaintiff in response: theft of time and failure to report

overpayment. That leaves the Court at the third shift in the McDonnell-Douglas framework for

each remaining retaliation and discrimination claim where Plaintiff must show pretext.

Importantly, at the third shift in the McDonnell-Douglas framework, Plaintiff in her

briefing provides only one grouping of facts suggestive of pretext for all of her theories of

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retaliation and discrimination. (Pl.’s Opp’n Br. 13-18.) As such, for the same reasons Plaintiffs

pretext arguments failed for her FMLA-retaliation claim, so too do her arguments for pretext fail

for her other retaliation and discrimination claims to the extent that they are identical. (Pl.’s Opp’n

Br. 31 (confirming that all of Plaintiffs pretext arguments, for all relevant claims, are set forth in

her “pretext section” where Plaintiff says she “will not repeat her arguments surrounding pretext.

.. set forth in the pretext section”); see also Foster v. Kennedy Univ. Hosp., Inc., No. 4415, 2022

WL 2981156, at *9 (D.N.J. July 28, 2022) (providing an example where this Court referred to its

FMLA-retaliation analysis as instructive for its NJLAD retaliation analyses because the two tests

essentially seek to ascertain the same thing, i.e., whether a plaintiff engaged in a protected activity,

suffered an adverse action, and a causal connection exists between the protected activity and

adverse action).)

Accordingly, the Court will only briefly assess Plaintiff's remaining retaliation or

discrimination claims to highlight that the Court’s reasoning above is equally applicable to each

claim.

i. ADA and NJLAD Disability Discrimination'® Claims

“To meet the prima facie burden in a discriminatory discharge claim brought pursuant to

the ADA, a plaintiff must show[:] (1) [s]he has a disability or is perceived by the employer as

disabled; (2) that [s]he was qualified for the position from which [s]he was discharged; and

Plaintiff labels this Count as “Actual/Perceived/Record of Disability Discrimination.” (Am.

Compl. §§ 76-80.) In her briefing, Plaintiff refers to this claim as a “claim for disability

discrimination.” (P1.’s Opp’n Br. 8.) A claim for disability discrimination, where a plaintiff alleges

that discrimination occurred where the plaintiff was terminated for a disability, is sometimes

referred to as a discriminatory discharge claim. See, e.g., Hoskins v. Valcor Eng’g, No. 14-6536,

2017 WL 1023353, at *5 (D.N.J. Mar. 16, 2017) (referring to a disability discrimination claim as

a disability discharge claim in the context of a plaintiffs termination for a disability), Accordingly,

the Court will refer to this claim as both a disability discrimination and disability discharge claim

interchangeably.

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(3) [s]he has suffered an adverse employment action because of that disability.” Hoskins, 2017

WL 1023353, at *5 (quoting Cinelli v. U.S. Energy Partners, 77 F. Supp. 2d 566, 573 (D.N.J.

1999) (internal quotation marks omitted)). The requirements under the NJLAD are identical,

except that the NJLAD requires an additional fourth element, specifically, that the employer sought

someone else to perform the same work as the plaintiff once the plaintiff was discharged. Hoskins,

2017 WL 1023353, at *5; see also Joseph v. N.J. Transit Rail Operations Inc., 586 F. App’x 890,

892 (3d Cir. 2014).

The McDonnell-Douglas framework applies to disability discrimination claims under the

ADA and NJLAD. Mascarenhas v. Rutgers, State Uni., 412 F. Supp. 3d 500, 507 (D.N.J. 2019)

(citing Walton v. Mental Health Ass’n of SE. Pa., 168 F.3d 661, 668 (3d Cir. 1999)); see also

Canada, 49 F 4th at 346 n.36 (confirming that the McDonnell-Douglas framework is utilized to

evaluate ADA-retaliation claims); Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 393, 403 (3d

Cir. 2007) (confirming that the McDonnell-Douglas framework is utilized to evaluate NJLAD

discrimination claims). As such, Plaintiff must establish by a preponderance of the evidence that

Plaintiff was terminated because she was disabled. Plaintiff cannot do so where she relies on the

same evidence of pretext when arguing retaliation under the FMLA to show she was fired based

on a disability (See Pl.’s Opp’n Br. 13-18.) As such, Defendants’ motion for summary judgment

as to Plaintiff's ADA and NJLAD disability claims is granted.

il. NJLAD and ADA Medical Accommodation Retaliation

“The elements of a prima facie NJLAD retaliation claim are the same as [those] for a

retaliation claim under the FMLA — a ‘[p]laintiff must demonstrate by a preponderance of the

evidence that[:] (1) she engaged in protected activity—here, a request for a reasonable

accommodation; (2) she suffered an adverse action; and (3) a causal connection exists between the

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protected activity and the adverse action.’” Foster, 2022 WL 2981156, at *9 (quoting Fitzgerald

vy. Shore Mem’! Hosp., 92 F. Supp. 3d 214, 239 (D.N.J. 2015)). The same can be said of Plaintiffs

ADA claim. “To establish a prima facie case of retaliation under the ADA, [a plaintiff is required]

to show: ‘(1) protected employee activity; (2) adverse action by the employer either after or

contemporaneous with the employee’s protected activity; and (3) a causal connection between the

employee’s protected activity and the employer’s adverse action.’” Stouch v. Township of

Irvington, 354 F. App’x 660, 667 (3d Cir. 2009) (quoting Williams v. Phila. Hous. Auth. Police

Dep’t, 380 F.3d 751, 759 (3d Cir. 2004)). Both claims are subject to the McDonnell-Douglas

framework. Wright v. Providence Care Ctr., LLC, 822 F. App’x 85, 94 (3d Cir. 2020) (providing

that ADA retaliation claims are subject to the McDonnell-Douglas framework); Holmes-Mergucz,

2021 WL 3163985, at *4 (providing that the McDonnell-Douglas framework applies to NJLAD

retaliation claims). As such, this Court’s third-shift analysis under FMLA-retaliation is equally

applicable here, except that the Court must evaluate whether a reasonable juror could conclude, by

a preponderance of the evidence, that a causal connection exists between Plaintiff's request for

medical accommodation and her termination.

As relevant for Plaintiffs medical-accommodation-retaliation claims, the Court notes that

while Defendants may have insisted Plaintiff get a written medical accommodation to excuse her

from Covid-19 related job responsibilities, Plaintiff functionally received a medical

accommodation from her Covid-19 job responsibilities where she was not required to perform

such duties. (DSUMF 9 31, 32; PRDSUMF §f 31, 32.) Moreover, Plaintiff admits she was not

punished for seeking medical accommodations. (DSUMF {J 28, 32; PRDSUMF 4f 31, 32.) As

such, Plaintiff fails to provide evidence capable of allowing a reasonable juror to conclude by a

preponderance of the evidence that Defendants terminated Plaintiff for requesting medical

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accommodations. Accordingly, Defendants’ motion for summary judgment as to Plaintiff's ADA

and NJLAD retaliation claims is granted.

C. Remaining Violations of the NJLAD and ADA

Finally, Plaintiff alleges two additional theories of violation under the ADA and NJLAD:

1) failure to accommodate; and 2) hostile work environment. (Am. Compl. 71-80.) Defendants

move for summary judgment on both Counts. (Defs.’ Moving Br. 26-29, 35-37, 40.)

i. Failure to Accommodate

Unlike the ADA, the NJLAD “does not specifically address failure to accommodate.”

Caraballo v. City of Jersey City Police Dep’t, 204 A.3d 254, 261 (N.J. 2019) (citation omitted).

New Jersey courts, however, “have uniformly held that the [NJLAD] nevertheless requires an

employer to reasonably accommodate an employee’s handicap.” /d. (citations omitted) Therefore,

this Court must “evaluate[] an employer’s obligation to reasonably accommodate an employee’s

disability under the [NJJLAD in accordance with the ADA.” Jd. (quoting Grande, 164 A.3d at

1041); see also Armstrong v. Burdette Tomlin Mem’! Hosp., 438 F.3d 240, 246 n.12 Gd Cir. 2006)

(citations omitted) (“The requirements for failure to accommodate claims under [the NJLAD] have

been interpreted in accordance with the [ADA].”).

To succeed in proving a failure-to-accommodate claim, a plaintiff must demonstrate that

she:

(1) qualifies as an individual with a disability, or... is perceived as

having a disability, as that has been defined by statute; (2) is

qualified to perform the essential functions of the job, or was

performing those essential functions, either with or without

reasonable accommodations; and (3) that [the employer] failed to

reasonably accommodate [her] disabilities.

Caraballo, 204 A.3d at 261 (internal quotation marks and citation omitted). A reasonable

accommodation refers to “the duty of an employer to attempt to accommodate the physical

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disability of the employee, not the duty on the part of the employer to acquiesce to the disabled

employee’s requests for certain benefits or remuneration.” Jd. (quoting Raspa v. Sheriff of

Gloucester, 924 A.2d 435, 444 (N.J. 2007)). When requesting accommodations, “the employee

must make a reasonable. . . request.” Rosenfeld v. Canon Bus. Sols., Inc., No. 09-4127, 2011 WL

4527959, at *14 (D.N.J. Sept. 26, 2011). “Requests for reasonable accommodation may be oral or

written and do not have to be made explicitly.” Jd. (citing Boyce v. Lucent Techs., No. L-5047-01,

2007 WL 1774267, at *5 (N.J. Super. Ct. App. Div. June 21, 2007)). Once a reasonable request is

made, “the employer is obliged to engage in an interactive process to attempt to fashion an

appropriate reasonable accommodation.” /d.

Defendants argue that no genuine dispute of material fact remains as to whether Defendants

failed to reasonably accommodate Plaintiff's disability, lupus. (Defs.’ Moving Br. 29.)

Defendants’ argument is threefold. First, Defendants argue that Plaintiff never requested an

accommodation for her lupus. (/d. at 29-30.) Second, Defendants argue that Plaintiff failed to

engage in the interactive process where she never requested an accommodation or provided

requested medical documentation demonstrating a need for workplace restrictions. (/d. at 32.) And

third, Defendants argue, notwithstanding Plaintiffs failure to request an accommodation,

Defendants accommodated Plaintiffs lupus by assigning her to data entry despite her job requiring

her to conduct Covid-19 screening. Ud. at 34.) The Court agrees with Defendants that the

undisputed evidence in the record compels the conclusion that Plaintiff cannot prove her

failure-to-accommodate claim because no evidence exists in the record to suggest that Defendants

failed to reasonably accommodate Plaintiffs lupus.

The undisputed facts in this case show that in the Fall of 2020, Riverview assigned all

available employees, including Plaintiff, to assist with fit-testing employees for respirators and

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state-mandated screening procedures. (DSUMF § 23; PRDSUMEF { 23.) In response, Plaintiff

expressed discomfort regarding Covid-19 exposure. (DSUME 24; see PRDSUMF § 24.) Plaintiff

communicated her discomfort to Harden and requested to be excused from duties that might

expose her to Covid-19. (See PSMDF § 31; DRPSMDF 4 31.) In emails dated October 20, 2020,

Swan communicated with various managers as to whether Plaintiff needed to obtain an

accommodation through HR in order to decline her job duties related to Covid-19. (PSMDF 4{ 35-

39; DRPSMDF {ff 35-39.) Management concluded that if Plaintiff had “ca medical reason [that

prevented her from being] deployed for several hours a week, then she needed] to go to HR and

request an accommodation.” (PSMDF { 36; DRPSMDF { 36.) Plaintiff never contacted HR

regarding any accommodation for any Covid-19-related assignments. (DSUMF § 28; PRDSUMF

28.)

Critically, however, after Plaintiff expressed discomfort about working with patients

during Covid-19, Plaintiff never took anyone’s temperature at the door, nor did Plaintiff engage in

any fit-testing. (DSUMF J 31, 32; PRDSUMF ff 31, 32.) Moreover, and significantly, Plaintiff

admits she was not disciplined for these failures to perform her job responsibilities. (DSUMF

28, 32; PRDSUMF {ff 28, 32.) As such, the Court finds that the evidence conclusively

establishes that Plaintiff received the accommodation she sought, to be excused from Covid-

19-related job responsibilities. Therefore, no genuine dispute of material fact remains as to whether

Defendant reasonably accommodated Plaintiff's disability. Accordingly, Defendants’ motion for

summary judgment on Plaintiff's failure to accommodate claims under the NJLAD and ADA is

granted.

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il. Hostile Work Environment''

To succeed on a hostile work environment claim under the NJLAD or ADA,

[A] plaintiff must show that the complained of conduct... (1) would

not have occurred but for the employee’s protected status and was

(2) severe or pervasive enough to make a (3) reasonable person

believe that (4) the conditions of employment have been altered and

the working environment is hostile or abusive.

Carroll, 2020 WL 4218409, at *7 (quoting Shepherd v. Hunterdone Dey. Ctr., 803 A.2d 611, 625

(N.J. 2002)). “Offhanded comments, and isolated incidents (unless extremely serious) are not

sufficient to sustain a hostile work environment [claim].” Caver v. City of Trenton, 420 F.3d 243,

262 (3d Cir. 2005) (internal quotation marks omitted) (quoting Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998)). Rather, conduct must be extreme to amount to a change in the terms

and conditions of employment. /d. Assessing extreme workplace environments requires courts to

conduct a totality of the circumstances analysis and to consider “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.” /d. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

Here, Plaintiff argues that Defendants fostered a hostile work environment where

management mocked Covid-19’s severity in front of Plaintiff. (Pl.’s Opp’n Br. 32.) Plaintiff asserts

that management did so despite being aware that Plaintiff was immunocompromised. (/d.)

Hostile work environment claims are substantially similar under the NJLAD and ADA. Carroll

y. Sunrise Detox Cherry Hill, LLC, 2020 WL 4218409, at *7 (D.N.J. July 22, 2020) (listing the

elements for hostile work environment claims under the NJLAD and ADA, concluding they are

similar, then conducting an analysis under the NJLAD standard applicable to both a plaintiffs

NJLAD and ADA claims); see also Vanhook v. Cooper Health Sys., No. 21-2213, 2022 WL

990220, at *4 (3d Cir. 2022) (similarly analyzing hostile work environment claims under the ADA

and NJLAD contemporaneously). Accordingly, this Court analyzes both Plaintiff's ADA and

NJLAD claims under the NJLAD standard unless case law otherwise necessitates.

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Moreover, Plaintiff contends she was subject to a hostile work environment where management

assigned her to conduct Covid-19 screening despite Plaintiff requesting accommodations. (/d.)

Plaintiff contends this “is the essence of physically threatening behavior.” (/d.)

Defendants, on the other hand, argue that “Plaintiff was not a health care provider and did

not provide treatment to any patients.” (Defs.’ Moving Br. 38.) Plaintiff reiterates that “nearly all

[Riverview] personnel were asked to assist” with “C[ovid-19] screening questions and taking

patient temperatures at the door.” (/d.) This is significant, Defendants argue, because it shows that

the alleged “hostile” conduct by Defendants was not directed at Plaintiff because of her disability,

which is the first element Plaintiff will have to prove to succeed on her hostile work environment

claim. (/d.)

The Court agrees with Defendants. The undisputed record establishes that most Riverview

staff were asked to conduct Covid-19 screening procedures and take patient temperatures at the

door. (DSUMF 4 23; PRDSUMF 4 23; PSMDF § 29; DRPSMDF § 29.) Plaintiff provides no

evidence that she was targeted in any way as a result of her disability, and therefore, Plaintiff

cannot show that the alleged abusive behavior would not have occurred if she were not disabled.

To the contrary, the undisputed facts suggest Plaintiff would have been asked to assist in Covid-19

screening notwithstanding her immunocompromised status. (See DSUMEF § 23; PRDSUMEF 4 23.)

For these reasons, no genuine disputes of material fact remain as to the first prong of Plaintiff's

hostile work environment claim as the undisputed record establishes that Plaintiff would have been

asked to assist with Covid-19 responsibilities whether she was disabled or not. Accordingly,

Defendants’ motion for summary judgment on Plaintiffs hostile work environment claim is

granted.

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IV. CONCLUSION

For the reasons set forth above, Defendants’ motion for summary judgment is granted as

to all Counts in Plaintiff's Amended Complaint. An appropriate Order will accompany this

Opinion.

Date: June SO , 2023

GETT£ CASTNER

TED STATES DISTRICT JUDGE

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