FRANCES GRAU VS. AHS HOSPITAL CORP.L-695-14, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3959-15T1

FRANCES GRAU,

Plaintiff-Appellant,

v.

AHS HOSPITAL CORP., ATLANTIC

HEALTH SYSTEMS, INC., and

MORRISTOWN MEDICAL CENTER,

Defendant-Respondent.

__________________________________

Submitted May 15, 2017 – Decided June 2, 2017

Before Judges Haas and Currier.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Docket No. L-695-

14.

Colin M. Page & Associates, attorneys for

appellant (Mr. Page and Evan Silagi, on the

briefs).

Carmagnola & Ritardi, LLC, attorneys for

respondent (Steven F. Ritardi, of counsel and

on the brief; Sean P. Joyce and Philip A.

Portantino, on the brief).

PER CURIAM

Plaintiff Frances Grau appeals from the Law Division's April

7, 2016 order granting summary judgment and dismissing her claim

that her employer, defendant Atlantic Health Systems, Inc.

("AHS"), failed to accommodate her disability in violation of New

Jersey's Law Against Discrimination, ("LAD"), N.J.S.A. 10:5-1 to

-49. We affirm.

The following facts are derived from the evidence submitted

by the parties in support of, and in opposition to, the summary

judgment motion, viewed in a light most favorable to plaintiff,

the non-moving party. Polzo v. Cnty. of Essex, 209 N.J. 51, 56

n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995)).

Plaintiff worked for twenty-six years as a nursing assistant

in a cardiac unit at Morristown Medical Center, which is part of

the AHS system of hospitals. As a nursing assistant, plaintiff's

essential job functions involved the direct care of patients.

More specifically, plaintiff was responsible for assisting

patients with activities of daily living, bathing and helping

patients with their hygiene maintenance, making beds, turning and

positioning patients as needed, maintaining and stocking linen

carts, and moving, maintaining, and returning all equipment used

in patient care. In order to perform these functions, plaintiff

was required to be able to occasionally lift up to 100 pounds of

weight, while more frequently lifting ten to fifty pounds. She

also needed to be able to push stretchers, chairs, and empty beds

2 A-3959-15T1

and, as part of a team, a patient while in a bed, for distances

of hundreds of feet.

On January 17, 2013, plaintiff fell at work. A month later,

she was granted leave due to complaints of shoulder pain. On May

3, 2013, plaintiff underwent shoulder surgery. AHS granted

plaintiff's request for additional leave through June 24, 2013.

Plaintiff's manager testified at a deposition that AHS could

not redistribute plaintiff's duties to other employees due to the

existing staff's already heavy workload. While plaintiff was on

leave, AHS backfilled her position by retaining per diem staff and

having other staff members work overtime. However, if plaintiff

could no longer perform her nursing assistant responsibilities,

and still worked on the unit, the manager testified that AHS would

have to hire a new employee for plaintiff's position, above and

beyond the cardiac unit's budget, to cover the work plaintiff

could not perform.

At the end of her leave period, plaintiff's treating

physician told AHS that plaintiff could only return to work if she

was placed on light duty and prohibited from lifting more than

five pounds of weight. In addition, plaintiff was not able to

engage in any pushing, pulling, or lifting overhead activities.

In accordance with its Transitional Duty Program and Return

to Work ("RTW program") policy, AHS temporarily assigned plaintiff

3 A-3959-15T1

to sedentary, light-duty desk work in the Infection Control Unit

beginning on June 24, 2013. The policy provided that this light

duty was only available for ninety days.

Because plaintiff's physician told her that she could no

longer perform the duties of a nursing assistant, AHS worked with

plaintiff to try to find her a new position that did not require

lifting. AHS provided plaintiff with training for Unit

Representative and Registrar clerical positions, and extended the

period for which she was eligible for the RTW program to enable

her to complete this training. However, plaintiff testified that

she was not able to "keep up with the pace" of the courses due,

in part, to her lack of familiarity with computers. AHS also

assisted plaintiff in the preparation of a new resume, provided

her with a list of positions that might be available, and advised

her on how to apply to the proper offices.

In October 2013, plaintiff participated in a Kinematic

Functional Capacity Evaluation and Work Ability Assessment to

determine her ability to perform the essential duties of a nursing

assistant. The assessment concluded that because of her shoulder

injury, plaintiff could not perform these duties due to the severe

limitations on her capacity to lift, pull, and push the amount of

weight needed to do this job.

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Pursuant to its RTW program policy, AHS discontinued

plaintiff's light duty assignment on October 24, 2013, and placed

her in the Health Insurance Cost Center, which enabled her to

maintain her health insurance. AHS's Employee Relations Manager

("ER manager") met with plaintiff to attempt to find her another

job within the hospital system. However, plaintiff's physical

limitations, coupled with her lack of technology or computer

knowledge or experience, severely limited her options at AHS.

Each week, the ER manager reviewed a list of open positions

to determine if plaintiff was qualified for them. However, due

to the many restrictions on plaintiff's ability to work, the ER

manager was not able to find an appropriate match. A manager in

another AHS department also helped plaintiff during this period,

but plaintiff was unable to locate a position for which she was

qualified.

Plaintiff testified that she heard that there were

"sitter/spotter" positions available at the hospital. According

to plaintiff, an employee acting as a "sitter/spotter" would

monitor patients who were at high risk of injuring themselves

because of confusion or disorientation. However, there were no

positions like this within AHS. Instead, the monitoring duties

plaintiff was referring to were encompassed within the normal

5 A-3959-15T1

responsibilities of a nursing assistant, which plaintiff could no

longer perform due to her shoulder injury.

Plaintiff testified that although she would have liked to

continue working, she chose to retire from her position and, with

the assistance of her brother, she completed the necessary forms

to do so. In February 2014, her retirement was approved. Shortly

thereafter, plaintiff successfully applied for Social Security

disability ("SSD") benefits. In her application for SSD, plaintiff

asserted that she could not lift over five pounds and that her

condition affected, among other things, her ability to walk, lift,

bend, and reach.

On March 17, 2014, plaintiff filed a one-count complaint

against AHS, claiming that her former employer failed to

accommodate her disability in violation of the LAD. AHS filed an

answer denying plaintiff's allegation and, at the conclusion of

discovery, it filed a motion for summary judgment.

Following oral argument, Judge Stuart Minkowitz rendered a

thorough written opinion granting AHS's motion and dismissing

plaintiff's complaint. The judge found that plaintiff's shoulder

injury qualified as a disability under the LAD. However, the

judge further found that plaintiff failed to "show that she can

perform the essential functions of her job either with or without

6 A-3959-15T1

an accommodation." Therefore, the judge concluded that AHS did

not violate the LAD.

In explaining his decision, Judge Minkowitz stated:

A [n]ursing [a]ssistant must physically assist

patients, use medical equipment and [clean and

maintain] patients' rooms. As specifically

reflected in AHS's uncontested description of

the essential and marginal functions of a

[n]ursing [a]ssistant position, [p]laintiff

must lift patients from their beds to assist

with hygiene; transfer patients from beds to

chairs; and turn and reposition bedfast

patients to prevent bedsores. This requires

physical manipulation of patients and supplies

over twenty-five pounds, more specifically up

to one hundred pounds occasionally and fifty

pounds frequently, and this too is reflected

in AHS's uncontested description of the

essential and marginal functions of a

[n]ursing [a]ssistant position. . . . AHS

reasonably arrived at the conclusion that

[p]laintiff could not perform the essential

functions of a [n]ursing [a]ssistant as she

admits at her deposition and in an email to

[an AHS supervisor] that her shoulder injury

was a permanent condition that prevented her

from working as a [n]ursing [a]ssistant.

The judge continued:

Plaintiff also admits that she has a

lifting restriction of twenty pounds or less.

Moreover, [plaintiff's treating physician's]

medical opinion, and the evaluation that AHS

ordered confirmed th[e] conclusion [that

plaintiff could not perform the essential

functions of the nursing assistant position].

Plaintiff suggests a "sitter" position as an

accommodation, yet this position also requires

[p]laintiff [to] be able to lift and

manipulate over twenty-five pounds as [acting

as a] "sitter" is a part of a [n]ursing

7 A-3959-15T1

[a]ssistant position. . . . Therefore, because

[p]laintiff cannot prove that she can perform

the essential functions of a [n]ursing

[a]ssistant position either with or without

an accommodation, she cannot prove a prima

facie element of her failure to accommodate

claim. Accordingly, AHS cannot be found

liable under [the] LAD[.]

This appeal followed.

On appeal, plaintiff contends that she established a prima

facie case of failure to accommodate under the LAD, and the judge

erred by granting AHS's motion for summary judgment and dismissing

her complaint. We disagree.

"[W]e review the trial court's grant of summary judgment de

novo under the same standard as the trial court." Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199

(2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J.

512, 524 (2012)). "That standard mandates that summary judgment

be granted 'if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to

a judgment or order as a matter of law.'" Ibid. (quoting R. 4:46-

2(c)).

[A] determination whether there exists a

"genuine issue" of material fact that

precludes summary judgment requires the motion

judge to consider whether the competent

8 A-3959-15T1

evidential materials presented, when viewed in

the light most favorable to the non-moving

party, are sufficient to permit a rational

factfinder to resolve the alleged disputed

issue in favor of the non-moving party.

[Brill, supra, 142 N.J. at 540.]

"To defeat a motion for summary judgment, the opponent must

'come forward with evidence that creates a genuine issue of

material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605

(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J.

v. State, 425 N.J. Super. 1, 32 (App. Div.), certif. denied, 211

N.J. 608 (2012)), certif. denied, 220 N.J. 269 (2015).

"[C]onclusory and self-serving assertions by one of the parties

are insufficient to overcome the motion." Puder v. Buechel, 183

N.J. 428, 440-41 (2005) (citations omitted). "When no issue of

fact exists, and only a question of law remains, [we] afford[] no

special deference to the legal determinations of the trial court."

Templo Fuente De Vida, supra, 224 N.J. at 199 (citing Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The LAD prohibits an employer from denying "an otherwise

qualified person with a disability" the opportunity to obtain or

maintain employment "solely because" he or she is disabled.

N.J.S.A. 10:5-29.1. Such action is considered an unlawful

employment practice "unless it can be clearly shown that a person's

disability would prevent such person from performing a particular

9 A-3959-15T1

job." Ibid. The LAD "prevents only unlawful discrimination

against disabled individuals" and "acknowledges the authority of

employers to manage their own businesses." Zive v. Stanley

Roberts, Inc., 182 N.J. 436, 446 (2005). Ultimately, "[w]hat

makes an employer's personnel action unlawful is the employer's

intent." Ibid.

"All employment discrimination claims require the plaintiff

to bear the burden of proving the elements of a prima facie case."

Victor v. State, 203 N.J. 383, 408 (2010). "[T]he elements of the

prima facie case vary depending upon the particular cause of

action." Ibid. "The evidentiary burden at the prima facie stage

'is rather modest: it is to demonstrate to the court that [the]

plaintiff's factual scenario is compatible with discriminatory

intent—i.e., that discrimination could be a reason for the

employer's action.'" Zive, supra, 182 N.J. at 447 (quoting Marzano

v. Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)).

In a reasonable accommodation case, a plaintiff must prove

that he or she (1) was disabled within the meaning of the LAD; (2)

"was qualified to perform the essential functions of the position

of employment," with or without reasonable accommodation; and (3)

"suffered an adverse employment action because of the disability."

Victor v. State, 401 N.J. Super. 596, 614-15 (App. Div. 2008),

aff'd in part, modified in part, 203 N.J. 383 (2010); see also

10 A-3959-15T1

Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91

(App. Div. 2001).

The LAD also prohibits the discriminatory discharge of an

employee based on a disability unless the employer "reasonably

conclude[s]" that the employee's disability "reasonably precludes

the performance of the particular employment." Jansen v. Food

Circus Supermarkets, Inc., 110 N.J. 363, 367 (1988) (quoting

N.J.S.A. 10:5-4.1); see also Raspa v. Office of Sheriff of

Gloucester, 191 N.J. 323, 338 (2007); Potente v. Cnty. of Hudson,

187 N.J. 103, 110-11 (2006). The LAD "leave[s] the employer with

the right to fire or not to hire employees who are unable to

perform the job, 'whether because they are generally unqualified

or because they have a handicap that in fact impedes job

performance.'" Jansen, supra, 110 N.J. at 374 (quoting Andersen

v. Exxon Co., 89 N.J. 483, 496 (1982)).

Thus, an employer is not required to accommodate an employee

who cannot perform his or her essential job functions even with

an accommodation. Hennessey v. Winslow Township, 368 N.J. Super.

443, 452 (App. Div. 2004), aff'd, 183 N.J. 593 (2005); see also

Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 150 (3d

Cir. 2004) (affirming summary judgment for employer because LAD

does not require employer to accommodate employee who "was unable

to perform any of the functions of his job"); Van de Pol v. Caesars

11 A-3959-15T1

Hotel Casino, 979 F. Supp. 308, 313 (D.N.J. 1997) (granting summary

judgment to employer because the LAD does not require employer to

accommodate employee who "was not physically capable of safely

performing any of his [or her] duties").

Generally, an employer must initiate a good faith

"interactive process" regarding accommodations before determining

that the employee's disability reasonably precludes performance

of her essential job functions. Tynan v. Vicinage 13 of Superior

Court, 351 N.J. Super. 385, 400 (App. Div. 2002). Employers can

demonstrate such a good faith attempt by "meet[ing] with the

employee[,] . . . request[ing] information about the condition and

what limitations the employee has, ask[ing] the employee what he

or she specifically wants, show[ing] some sign of having considered

[the] employee's request, and offer[ing] and discuss[ing]

available alternatives when the request is too burdensome." Taylor

v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999).

Participation in the interactive process is not a one-way

street. It "is the obligation of both parties," and the "employer

cannot be faulted if after conferring with the employee to find

possible accommodations, the employee then fails to supply

information that the employer needs or does not answer the

employer's request for more detailed proposals." Ibid.

12 A-3959-15T1

Proof of the employer's failure to engage in the interactive

process alone is not sufficient to meet the employee's prima facie

burden. Donahue v. Consol. Rail Corp., 224 F.3d 226, 234 (3d Cir.

2000); Victor, supra, 401 N.J. Super. at 614. The employee still

has the burden to prove the basic essential elements of a

discrimination case, and must show that reasonable accommodation

for her disability was possible even where the employer acted

wrongfully in failing to engage in the interactive process to find

such an accommodation. Victor, supra, 401 N.J. Super. at 614-15.

As part of that burden, the employee must prove that he or she was

qualified to perform the job and that "the accommodation could

have been reasonably achieved." Id. at 615; see also Potente,

supra, 187 N.J. at 110.

However, after a complaint is filed, the employee is required,

as part of his or her burden of proof, to provide examples of what

the employer could have done to accommodate their specific needs.

Donahue, supra, 224 F.3d at 234-35. Where a plaintiff is unable

to show that a reasonable accommodation existed, "the employer's

lack of investigation into reasonable accommodation is

unimportant." Id. at 233; Willis v. Conopco, Inc., 108 F.3d 282,

285 (11th Cir. 1997).

Further, if an employee requests a transfer to another

position, the employee must prove that (1) "there was a vacant,

13 A-3959-15T1

funded position" available; (2) "the position was at or below the

level of [the employee's] former job"; and (3) the employee "was

qualified to perform the essential duties of this job with

reasonable accommodation." Donahue, supra, 224 F.3d at 230; see

also Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997). "[A]n

employer is not required to 'bump' another employee in order to

reassign a disabled employee to that position." Cravens v. Blue

Cross & Blue Shield, 214 F.3d 1011, 1019 (8th Cir. 2000).

Applying these standards, and considering the facts in the

light most favorable to plaintiff, we are satisfied that Judge

Minkowitz properly granted summary judgment to AHS, and affirm

substantially for the reasons expressed in his comprehensive April

7, 2016 written decision. We add the following brief comments.

The record fully supports Judge Minkowitz's finding that even

with an accommodation, plaintiff was unable to perform the

essential duties of the nursing assistant position or other patient

care jobs that might have been available at AHS prior to

plaintiff's retirement. Because of her shoulder injury, plaintiff

could no longer lift, push, or pull the amount of weight necessary

to complete her assigned tasks. There were no permanent light

duty positions available and, because plaintiff could not perform

nursing assistant functions, AHS needed to hire a new employee to

take her place.

14 A-3959-15T1

Plaintiff also failed to establish that there were other

positions available within the hospital system that she could

perform. AHS attempted to train plaintiff for administrative

positions, but she was unable to complete the required courses or

operate a computer. Contrary to plaintiff's contention, the record

simply does not support her claim that she could have been retained

as a "sitter" because there was no such position at AHS.

Plaintiff contends that AHS failed to participate in the

interactive process. However, this argument ignores the many

attempts AHS made to help plaintiff secure a non-patient-care

position in the hospital system prior to her decision to retire.

In addition to the training AHS offered plaintiff to transition

to a new, administrative position, the ER manager reviewed

available positions each week in order to determine whether

plaintiff was suited for them. In spite of AHS's efforts,

plaintiff was unable to identify any specific vacant position that

AHS could have offered her as an accommodation.

Because plaintiff failed to demonstrate, as a matter of law,

that she could perform her essential job functions even with an

accommodation, Judge Minkowitz properly granted AHS's motion for

summary judgment and dismissed plaintiff's complaint.

Affirmed.

15 A-3959-15T1