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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0102-17T2
MARY RICHTER,
Plaintiff-Appellant/
Cross-Respondent, APPROVED FOR PUBLICATION
June 11, 2019
v.
APPELLATE DIVISION
OAKLAND BOARD OF
EDUCATION,
Defendant-Respondent/
Cross-Appellant,
and
GREGG DESIDERIO, Individually
and as Principal of the Valley
Middle School,
Defendant-Respondent.
______________________________
Argued February 4, 2019 – Decided June 11, 2019
Before Judges Sabatino, Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-0742-15.
Gerald J. Resnick argued the cause for
appellant/cross-respondent (Resnick Law Group, PC,
attorneys; Gerald J. Resnick, on the briefs).
Betsy Gale Ramos argued the cause for
respondent/cross-appellant (Capehart & Scatchard,
PA, attorneys; Betsy Gale Ramos and Voris M.
Tejada, on the briefs).
Aileen F. Droughton argued the cause for respondents
Oakland Board of Education and Gregg Desiderio
(Traub Lieberman Straus & Shrewsberry LLP,
attorneys; Aileen F. Droughton, of counsel and on the
brief; Benjamin L. Rouder, on the brief).
The opinion of the court was delivered by
SUMNERS, J.A.D.
This matter presents several questions for us to decide. On appeal, the
first issue is whether an employee alleging disability discrimination for failure
to accommodate under the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49, is required to establish an adverse employment action
to avoid summary judgment dismissal. We also must determine whether the
motion judge erred in denying the employee's cross-motion for summary
judgment. In the event we determine there is no requirement to establish
adverse employment action, the issue on cross-appeal is whether a bodily
injury claim arising from the failure to accommodate allegation should be
dismissed because it is barred by the exclusive remedy provision of the
Workers' Compensation Act (the Compensation Act), N.J.S.A. 34:15-1 to -146.
In addition, we must decide whether medical bills and lost wages can be
A-0102-17T2
2
introduced at trial, and if any worker's compensation lien should be applied to
any award in plaintiff's favor.
Plaintiff Mary Richter, a middle school teacher who suffers from
diabetes, alleges she fainted while teaching due to low blood sugar levels when
she was unable to eat lunch at an earlier class period and suffered significant
and permanent injuries. She contends the accident would not have occurred
had defendants Oakland Board of Education (the Board) and Gregg Desiderio
granted her accommodation request to eat lunch earlier. The motion judge
granted defendants' motion for summary judgment dismissing Ri chter's
complaint, denied Richter's cross-motion for summary judgment, and denied
reconsideration of the dismissal. The judge held that as a matter of law,
Richter failed to prove a prima facie case of failure to accommodate her
disability because she did not establish an adverse employment action. Thus,
her bodily injury claim, which is the subject of the Board's cross-appeal, was
denied as moot.
Under the circumstances of this case, we reverse the motion judge's
grant of summary judgment dismissing Richter's complaint. Based on our
consideration of Supreme Court decisions in Victor v. State, 203 N.J. 383
(2008) and Royster v. N.J. State Police, 227 N.J. 482 (2017), we conclude that
Richter need not demonstrate an adverse employment action to establish a
A-0102-17T2
3
prima facie case of a failure to accommodate claim under the LAD. Because
there were genuine issues of material facts concerning whether Richter was
provided an accommodation and whether the accommodation was adequate,
which must be determined at a trial, we affirm the denial of Richter's cross-
motion for summary judgment. As to the Board's cross-appeal, we conclude
the Compensation Act does not bar Richter's bodily injury claim, but should
she prevail at trial, the Board should receive a credit based on the amount it
paid in her workers' compensation claim in accordance with N.J.S.A. 34:15-40
(section 40).
I
Richter, a Type I Diabetic, is employed by the Board as a science
teacher at Valley Middle School (VMS). VMS's academic calendar is divided
into four marking periods. Each school day consists of eight class periods.
Student lunch periods are during the fifth and sixth periods, which take place
between 11:31 a.m. to 1:02 p.m. Teachers are assigned to supervise students
during lunch, designated as cafeteria duty. Thus, some teachers are scheduled
to have their lunch from 1:05 p.m. to 1:49 p.m., during seventh period. They
are also assigned other non-teaching responsibilities, such as hall duty and
health office duty.
A-0102-17T2
4
At the beginning of the 2012/2013 school year, Richter received her
schedule, in which she was assigned to cafeteria duty on Wednesdays and
Thursdays during fifth period, followed by teaching a class during sixth period
and having her lunch during seventh period. Richter believed that waiting
until seventh period, which began at 1:05 p.m., to eat a meal would have a
negative effect on her blood sugar levels due to the medications she takes for
her diabetes. Therefore, she asked Desiderio, the VMS principal, to have her
schedule adjusted so that she could have lunch during the earlier fifth period.
Desiderio responded that he would "look into it."
After Desiderio failed to contact her, Richter sent a follow-up email on
September 10, 2012, reiterating her need for a schedule change because of her
medical condition. It was not until Richter sent another email that Desiderio
responded by stating he would look into her request, but cautioned he could
not "undo what he did." Thus, during the first marking period, Richter
maintained her fifth-period cafeteria duty for two days a week. With her lunch
delayed until seventh period, she ingested glucose tablets during sixth period
to maintain her blood sugar levels.
When plaintiff received her schedule for the second marking period, her
lunch was scheduled for the fifth period every school day – which satisfied her
request for an earlier lunch. This, however, changed for the third marking
A-0102-17T2
5
period, when she was scheduled for cafeteria duty and teaching science
respectively during the fifth and sixth periods on Tuesdays with her lunch set
for seventh period that day. Richter immediately approached Desiderio to
remind him of her need to have lunch during fifth period, as she had
throughout the second marking period. He verbally told her that he needed her
for cafeteria duty because three teachers had to be assigned to the duty. He
then suggested that if she was not feeling well, she should sit down to have a
snack, and return to cafeteria duty when she was feeling better. The VMS vice
principal told her she should skip cafeteria duty. Her union president
instructed her that she would not be disciplined for skipping cafeteria duty.
Under the impression that the school's official schedule would have to be
revised in writing, Richter believed she was still obligated to remain on
cafeteria duty during fifth period on Tuesdays. Desiderio never directed
anyone in the school's office to change Richter's schedule, or otherwise noted
anywhere that her scheduled lunch period on Tuesdays changed from Seventh
period to fifth period to accommodate her medical condition. Consequently,
Richter's blood sugar levels on Tuesdays often fell below the normal range as
she approached the end of her sixth period class, requiring her to ingest three
or more glucose tablets to try to keep her sugar elevated.
A-0102-17T2
6
Unfortunately, on Tuesday, March 5, 2013, towards the end of the sixth
period, despite ingesting glucose tablets throughout the period, Richter
suffered a hypoglycemic event in front of her students. She had a seizure and
became unconscious causing her to strike her head and face on a lab table and
the floor, and to bleed extensively. She was transported to the hospital for
treatment. Even though she had minor hypoglycemic events at school in the
past, she had never passed out at school.
After the accident, Desiderio sent a number of text messages to Richter
telling her that he previously told her not to attend cafeteria duty on Tuesdays.
When she again asked Desiderio to make some documented change in her
schedule, he placed an X on her schedule where it indicated she had cafeteria
duty during fifth period on Tuesdays.
From her fall, Richter suffered the following serious and permanent
injuries: total loss of smell; 1 meaningful loss of taste; dental and facial trauma;
tinnitus; insomnia; tingling in her fingers; extraction of her right front tooth;
implantation of a dental bridge, and bone grafts; altered speech; pain in neck
and radiation to posterior shoulder; paranesthesia and dysesthesias; post -
concussion syndrome; vertigo; dizziness; severe emotional distress; and
1
Because of her inability to smell, Richter had to request gas monitors in her
classroom.
A-0102-17T2
7
decreased life expectancy. She lost sick days and incurred significant dental
costs not covered by her insurance.
As a result of her work-related injuries, Richter filed a workers'
compensation claim. The Board paid $18,940.94 for her medical bills,
$9,792.40 for temporary disability benefits and $77,200 for the permanent
injuries she suffered.
Richter sued the Board and Desiderio, individually and as principal of
the school, alleging disability discrimination in violation of the LAD due to
their alleged failure to accommodate her medical condition. The Board's
initial motion for partial summary judgment to dismiss Richter's bodily injury
claim as being barred by the Compensation Act was denied on July 10, 2015.
In an oral decision, the motion judge, citing Laidlow v. Hariton Mach. Co.,
Inc., 170 N.J. 602 (2002), held that under the Compensation Act's intention al
wrong exception, Richter's LAD bodily injury claim was not barred.
Thereafter, both defendants moved for summary judgment to dismiss
Richter's complaint with prejudice, claiming Richter did not establish a prima
facie LAD claim of disability discrimination for failure to accommodate
because she suffered no adverse employment action. Richter cross-moved for
summary judgment claiming she suffered an adverse employment action to
establish a prima facie LAD claim. The Board then re-filed their summary
A-0102-17T2
8
judgment motion to dismiss the bodily injury claim, or in the alternative, be
entitled to a 100% credit for all the money paid to Richter through her workers'
compensation claim and barring her medical bills and lost wages from being
presented at trial.
On May 5, 2017, a different motion judge granted defendants' motion for
summary judgment dismissing Richter's LAD complaint and ruled that the
motion to dismiss the bodily injury claim was denied as moot. Concurrently,
plaintiff's cross-motion was denied.
In her written decision, the judge noted that "the New Jersey Supreme
Court may later decide to strike 'adverse employment action' as a distinct
element in a failure to accommodate claim, [but] it has not yet done so," and
held that adverse employment action remains a required element to make a
prima facie case of failure to accommodate under the LAD. Because Richter
was not fired or reassigned to another position, the judge determined she could
not establish a prima facie case of adverse employment action. In addition, the
judge asserted that even though plaintiff's injuries were unfortunate, they were
not due to defendants' action because it was Richter's personal decision to
continue attending cafeteria duty on Tuesdays rather than eating.
Richter moved for reconsideration. In the event the motion was granted,
the Board cross-moved for reconsideration of the denial of dismissal of
A-0102-17T2
9
Richter's bodily injury claim with prejudice, or in the alternative, a 100 %
credit for the workers' compensation payments. Ruling on the papers, the
judge denied Richter's motion and issued a written decision finding there was
no merit to her LAD claim because by failing to establish she suffered an
adverse employment action, a prima facie failure to accommodate claim was
not made. The judge reiterated her prior decision by declaring the Boa rd's
cross-motion as moot. This appeal and cross-appeal followed.
II
We begin with Richter's contention that the motion judge erred in
granting summary judgment dismissal of her LAD claim as a matter of law
because she presented no evidence that she suffered an adverse employment
action due to Desiderio's failure to reasonably accommodate her diabetes
disability by giving her an earlier lunch period to avoid a decrease of her blood
sugar levels. In support, she relies upon Victor; Royster; Model Jury Charges
(Civil), 2.21, "The New Jersey Law Against Discrimination ("NJLAD")
(N.J.S.A. 10:5-1[to -42])" (approved May 2003); Model Jury Charges (Civil),
2.26, "Failure to Accommodate Employee with Disability Under the [NJLAD]"
(approved Feb. 2013); and N.J.A.C. 13:13-1.1 to -2.5(b).2
2
Richter's reliance upon N.J.A.C. 13:13-1.1 to -2.5(b) regarding adverse
employment actions are without sufficient merit to warrant discussion in a
(continued)
A-0102-17T2
10
This court reviews de novo a ruling on a motion for summary judgment,
applying "the same standard governing the trial court[.]" Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014). We consider, as the motion
judge did, "whether the competent 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." Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995)). "If there is no genuine issue of material fact," then we
must "decide whether the trial court correctly interpreted the law." DepoLink
Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333
(App. Div. 2013) (citation omitted). We accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013)
(citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)).
A.
With these summary judgment guidelines in mind, we conclude Richter's
LAD claim should not have been dismissed on summary judgment because
based on the circumstances before us, there was no obligation that she
(continued)
written opinion. R. 2:11-3(e)(1)(E). The regulations do not address whether a
plaintiff is required to prove an adverse employment action to sustain a LAD
failure to accommodate claim.
A-0102-17T2
11
establish an adverse employment action to sustain her LAD claim of failure to
accommodate her disability.
We start our analysis with Victor, where Justice Helen E. Hoens, writing
the decision for the unanimous Court, gave a thorough and thoughtful
examination of the LAD by our courts and the related Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213, by federal courts, in
considering "whether an adverse employment consequence is an essential
element of a plaintiff's claim that his employer discriminated against him by
failing to accommodate his disability." 203 N.J. at 388. The plaintiff, a New
Jersey State Trooper, requested administrative duty because he claimed a back
injury made it difficult for him to wear a protective vest that was required to
be worn during full-duty activity. Id. at 389, 391-92. He did not produce any
medical documentation to support his request, so his station commander – after
consulting the New Jersey State Police (NJSP) Director of Medical Services –
denied the request and ordered him to perform full-duty activity during a four-
hour period. Id. at 391-92, 412. The plaintiff's claim of failure to
accommodate his disability was among several discrimination claims he later
made against the NJSP, but was the only claim addressed in Victor. Id. at 389-
90.
A-0102-17T2
12
The Court acknowledged that an adverse employment action has
generally been recognized as an element of a prima facie case of disability
discrimination for failure to accommodate, but stressed "[i]dentifying the
elements of the prima facie case that are unique to the particular discrimination
claim is critical to its evaluation[,]" because "[d]isability discrimination claims
are different from other kinds of discrimination claims, for several reasons."
Id. at 410. Yet, the Court acknowledged, "the LAD does not directly answer
the question" of whether a plaintiff must prove adverse employment action
"because its reasonable accommodation protections are not explicit." Id. at
412.
Commenting on our state's published decisions determining "adverse
employment consequence as one element of the prima facie case for disability
discrimination," the Court stressed:
Those opinions do so, however, in part because they
recite the familiar elements consistent with any
employment discrimination case, and in part because
the factual setting of each case included an adverse
job consequence. For example, this Court has touched
on the question of reasonable accommodations, but
only as to an employee who contended that the failure
to accommodate resulted in termination, making
separate consideration of adverse employment
consequence irrelevant. See Raspa [v. Office of
Sheriff of Cty. of Gloucester, 191 N.J. 323, 327, 340
(2007)] (recognizing that some employment positions
have requirements similar to the bona fide
occupational qualifications set forth in federal law that
A-0102-17T2
13
impact on reasonable accommodation analysis);
Potente [v. Cty. of Hudson, 187 N.J. 103, 111 (2006)]
(concluding that employee may not raise LAD claim if
he or she has refused to engage in interactive dialogue
respecting potential accommodations).
[203 N.J. at 413.]
On the other hand, the Court recognized that Seiden v. Marina Assocs.,
315 N.J. Super. 451, 459-61 (Law Div. 1998), "seems to equate [that] the
failure to accommodate with an unlawful employment practice, is included as
part of the court's explanation about why the McDonnell Douglas 3 burden-
shifting framework is not useful [and unnecessary] in the context of a failure to
accommodate claim." Id. at 413-14. The Court also found it significant in
Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 400-01 (App.
Div. 2002), where in "a disability discrimination claim based on an employer's
failure to engage in the interactive accommodation process, in which [this]
court did not include the requirement that the employee suffer an adverse
employment consequence." Id. at 414.
Given the LAD's broad remedial purposes, the Court believed that it was
time to
chart a course to permit plaintiffs to proceed against
employers who have failed to reasonably
3
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
A-0102-17T2
14
accommodate their disabilities or who have failed to
engage in an interactive process even if they can point
to no adverse employment consequence that
resulted.[4] Such cases would be unusual, if not rare,
for it will ordinarily be true that a disabled employee
who has been unsuccessful in securing an
accommodation will indeed suffer an adverse
employment consequence.
[Id. at 421.]
The Court, nevertheless, ruled that based upon the record presented, it
was "constrained to refrain from resolving today the question of whether a
failure to accommodate unaccompanied by an adverse employment
consequence may be actionable." Id. at 422. First, the record failed to
establish plaintiff was disabled when he sought an administrative duty
assignment. Id. at 423. Second, there was insufficient proof that he sought a
reasonable accommodation based upon his mere request, as the employer only
has a duty to accommodate an employee's physical disability and not simply
agree to a request without engaging in the interactive accommodation request
to determine a reasonable accommodation. Id. at 423-24.
The Court recognized that under the right set of facts, the LAD might
cover a disability discrimination claim for failure to accommodate absent an
adverse employment action. As Justice Hoens wrote:
4
Model Jury Charges (Civil), 2.26, quoted this comment from Victor in
footnote number three; noting it as "dictum."
A-0102-17T2
15
Perhaps in those circumstances the employee could
demonstrate that the failure to accommodate forced
the employee to soldier on without a reasonable
accommodation, making the circumstances so
unbearable that it would constitute a hostile
employment environment. But there also might be
circumstances in which such an employee's proofs,
while falling short of that standard, would cry out for
a remedy. We cannot foresee all of the factual
settings that might confront persons with disabilities
and, although hard to envision, we therefore cannot
entirely foreclose the possibility of circumstances that
would give rise to a claim for failure to accommodate
even without an identifiable adverse employment
consequence.
[203 N.J. at 421-22.]
Almost ten years later in Royster, another State Trooper employment
discrimination case, the Court decided in the interest of justice to reinstate the
plaintiff's LAD failure to accommodate claim that was mistakenly dismissed.
227 N.J. at 501. In doing so, the Court articulated the standard to establish a
prima facie claim – without including the requirement that an adverse
employment action must be proven. Citing Victor, the Court ruled:
To establish a failure-to-accommodate claim under the
LAD, a plaintiff must demonstrate that he or 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 defendant "failed to
reasonably accommodate [his or her] disabilities."
Victor, []203 N.J. at 410, 421[]. Although these
A-0102-17T2
16
elements do not mirror those of the ADA, the same
proofs are implicated: (1) the plaintiff had a disability;
(2) the plaintiff was able to perform the essential
functions of the job; (3) the employer was aware of
the basic need for an accommodation; and (4) the
employer failed to provide a reasonable
accommodation.
[227 N.J. at 500.]
Our interpretation of Victor and Royster leads us to conclude that
Richter's LAD claim for failure to accommodate her diabetes disability should
not have been dismissed on summary judgment based on a lack of adverse
employment action. Viewing the facts in the light most favorable to Richter,
her claim falls within the unusual situation contemplated in Victor where "the
employee could demonstrate that the failure to accommodate forced the
employee to soldier on without a reasonable accommodation[]" and there need
not be proof of adverse employment action because the circumstances "cry out
for a remedy." 203 N.J. at 421. She requested an accommodation for an
earlier lunch period to avoid a hypoglycemic event from not eating, which was
provided for one marking period but not the following marking period. Under
the impression that Desiderio did not change her schedule to allow for the
earlier lunch period and she could not eat her lunch while supervising students
during her cafeteria duty, Richter "soldiered on" by taking glucose tablets to
maintain her blood sugar levels in order to teach. Sadly, her worst fears came
A-0102-17T2
17
to fruition when she fainted and seriously injured herself in front of her
students. Hence, she should be allowed to present her claim for damages
under the LAD at trial.
B.
Having concluded that Richter need not establish an adverse
employment action to establish a prima facie claim under the LAD for failure
to accommodate, we briefly address her contention that Victor stands for the
proposition that defendants' refusal to accommodate an employee's disability
constitutes an adverse employment action. She asserts, "there is no bright -line
rule for identifying an adverse employment action" and the "proofs necessary
to demonstrate an adverse employment action must be examined on a case-by-
case basis." See Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App.
Div. 2002) aff'd in part and modified in part, 179 N.J. 425 (2004); Victor v.
State, 401 N.J. Super. 596, 615 (App. Div. 2008). With respect to her claim,
Richter argues the terms and conditions of her employment had been seriously
altered, by continuously ingesting glucose tablets to maintain her blood sugar
levels and the refusal to change her lunch period caused her to experience
constant hypoglycemic symptoms, such as sweats, disorientation, and fatigue.
We agree there is no bright-line rule defining an adverse employment
action in the context of a LAD claim. New Jersey has been guided by the
A-0102-17T2
18
federal courts' interpretation of Title VII and civil rights legislation to decide
what constitutes an adverse employment decision with regards to a LAD
retaliation claim. Mancini, 349 N.J. Super. at 564 (citation omitted). The
factors to be considered include an "employee's loss of status, a clouding of
job responsibilities, diminution in authority, disadvantageous transfers or
assignments, and toleration of harassment by other employees." Ibid. As the
federal district court stated in Marrero v. Camden County Board of Social
Services, 164 F. Supp. 2d 455, 473 (D.N.J. 2001),
[i]n order to constitute "adverse employment action"
for the purpose of the LAD, "retaliatory conduct must
affect adversely the terms, conditions, or privileges of
the plaintiff's employment or limit, segregate or
classify the plaintiff in a way which would tend to
deprive her of employment opportunities or otherwise
affect her status as an employee."
In the context of whistle-blower claims under the New Jersey's
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, an
"employer actions that fall short of [discharge, suspension or demotion], may
nonetheless be the equivalent of an adverse action." Nardello v. Twp. of
Voorhees, 377 N.J. Super. 428, 433-34 (App. Div. 2005) (alteration in
original) (quoting Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366,
378 (Law Div. 2002)). That being said, "not every employment action that
A-0102-17T2
19
makes an employee unhappy constitutes 'an actionable adverse action.'" Id. at
434 (quoting Cokus, 362 N.J. Super. at 378).
Although an "adverse employment action under the LAD is [not] the
same as a retaliatory action under CEPA," we have acknowledged
that an employer's adverse employment action must
rise above something that makes an employee
unhappy, resentful or otherwise cause an incidental
workplace dissatisfaction. Clearly, actions that affect
wages, benefits, or result in direct economic harm
qualify. So too, noneconomic actions that cause a
significant, non-temporary adverse change in
employment status or the terms and conditions of
employment would suffice. We recognize an
exhaustive list of qualifying events cannot be
compiled and these determinations must turn on the
facts and circumstances presented.
[Victor, 401 N.J. Super. at 616.]
Although we do not marginalize Richter's unfortunate injuries caused by her
hypoglycemic event, we are constrained to conclude her situation does not rise
to the level of an adverse employment action as our courts have contemplated
to date under the LAD. Defendants' actions did not materially alter the terms
and conditions of her employment. Nor did they deprive her of any
employment privileges or opportunities, or otherwise change her employment
status. Accordingly, we do not conclude that she suffered an adverse
employment action based upon defendants' alleged conduct in not
accommodating her accommodation.
A-0102-17T2
20
C.
We next address Richter's contention that the motion judge should have
granted her cross-motion for summary judgment because there was no genuine
issue of material fact as to the failure to accommodate her disability and
defendants acted in bad faith in failing to engage in the interactive process to
address her accommodation request. She argues that by determining she was
reasonably accommodated, not only did the judge fail to accept as true all the
evidence supporting her position, but the judge also failed to accord her the
benefit of all legitimate inferences which can be deduced therefrom, and
improperly weighed the evidence in defendants' favor. We are unpersuaded.
Richter asserts defendants failed to initiate an informal interactive
process with the employee to determine what appropriate accommodation is
necessary as required by N.J.A.C. 13:13-1.1 to -2.5(b). See Tynan, 351 N.J.
Super. at 400; 29 C.F.R. § 1630.2(o)(3). In particular, she avers the judge
completely disregarded that: (1) her accommodation request was reasonable;
(2) defendants never claimed the accommodation she sought was unreasonable
or caused an undue hardship for the Board; (3) Desiderio never sought to
understand her accommodation request and why she needed her lunch to be
during the fifth period; (4) Desiderio had little discussion with her about her
disability and the requested accommodation; (5) Desiderio completely ignored
A-0102-17T2
21
her accommodation request for the entire first marking period; and (6)
Desiderio's "solution" to "have a snack and then go to [cafeteria] duty" did not
adequately accommodate her medical needs and therefore was not an effective
accommodation.
In order to demonstrate an employer failed to participate in the
interactive process, a disabled employee must show:
(1) the employer knew about the employee's disability;
(2) the employee requested accommodations or
assistance for her disability; (3) the employer did not
make a good faith effort to assist the employee in
seeking accommodations; and (4) the employee could
have been reasonably accommodated but for the
employer's lack of good faith.
[Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319-
20 (3d Cir. 1999).]
While there were no disputes concerning the first and second factors,
there were factual disputes as to the third and fourth factors. Defendants point
to statements by Desiderio, the vice principal and the union president that
Richter was verbally told at the beginning of the third marking period – prior
to her fall on March 5, 2013 – that she did not have to perform her fifth period
cafeteria duty if she felt she needed to eat her lunch. Richter, however,
thought in order for an accommodation request to be granted, it had to be in
writing because the official schedule stated otherwise. Viewing the evidence
in the light most favorable to defendants, the non-moving parties, a reasonable
A-0102-17T2
22
jury could have determined that defendants participated in the interactive
process and made a good faith effort to provide her with an accommodation.
Therefore, based upon the record, denying Richter's cross-motion for summary
judgment was proper.
D.
Given that the motion judge's decision to dismiss her bodily injury claim
under the LAD also included dismissal of her punitive damages claim, Richter
contends that the later claim should be presented to the jury. To the extent that
we have reinstated Richter's LAD claim, the statute permits punitive damages.
N.J.S.A. 10:5-3 provides:
The Legislature further finds that because of
discrimination, people suffer personal hardships, and
the State suffers a grievous harm. The personal
hardships include: economic loss; time loss; physical
and emotional stress . . . and adjustment problems,
which particularly impact on those protected by this
act. Such harms have, under the common law, given
rise to legal remedies, including compensatory and
punitive damages. The Legislature intends that such
damages be available to all persons protected by this
act and that this act shall be liberally construed in
combination with other protections available under the
laws of this State.
[(Emphasis added).]
Thus, the jury must decide whether Richter proved: (1) the harm she suffered
was the result of the defendant's acts or omissions, and (2) such acts or
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omissions were actuated by "actual malice" or accompanied by a "wanton and
willful disregard" of persons who foreseeably might be harmed by those acts
or omissions. N.J.S.A. 2A:15-5.12(a).
III
Because we have determined that Richter's LAD claim shall proceed to
trial, we now address the Board's cross-appeal contending that Richter's bodily
injury claim due to the Board's failure to accommodate her disability should be
barred by the exclusive remedy provision of the Compensation Act. If the
bodily injury claim is not dismissed, the Board contends that Richter should
not be allowed to introduce medical bills and lost wages at trial, and if she is,
then it should receive 100% credit for the worker's compensation payments it
made to any jury award in her favor.
A.
There is no dispute that Richter's bodily injury claim arose while she
was acting within the scope of her employment. As previously noted, her
workers' compensation claim paid her $18,940.94 for medical bills, $9,792.40
for temporary disability benefits and $77,200 for the permanent injuries. The
Board argues that because she elected to pursue her remedies under the
Compensation Act, the exclusive remedy provision of the Compensation Act
bars her from receiving any additional compensation, or double recovery,
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through her LAD action. Estate of Kotsovska, ex. rel. Kotsovska v. Liebman,
221 N.J. 568, 585 (2015), Van Dunk v. Reckson Associates Realty Corp., 210
N.J. 449, 459 (2012). We disagree.
By pursuing remedies under the Compensation Act, an employee gives
up the right to pursue common law claims for work-related injuries. Laidlow,
170 N.J. at 602. However, the Compensation Act carves out an intentional
wrong exception to the exclusivity of relief provided by a workers'
compensation claim where it provides:
If an injury or death is compensable under this article,
a person shall not be liable to anyone at common law
or otherwise on account of such injury or death for
any act or omission occurring while such person was
in the same employ as the person injured or killed,
except for intentional wrong.
[N.J.S.A. 34:15-8.]
This exception was first construed by our Supreme Court in Millison v.
E.I. Du Pont de Nemours & Co., 101 N.J. 161 (1985). The Court held the
plaintiffs' claims that the employer had fraudulently concealed that they were
suffering from asbestos-related diseases, thereby delaying treatment and
aggravating their existing illness, constituted an intentional wrong that was an
exception to the workers' compensation bar. Id. at 181-82; see also
Kristiansen v. Morgan, 153 N.J. 298, 312 (1998).
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"An injured worker need not establish that the employer 'subjectively
desired to harm him [or her]' in order to satisfy the intentional-wrong
exception. Laidlow, []170 N.J. at 613." Kibler v. Roxbury Bd. of Educ., 392
N.J. Super. 45, 53 (App. Div. 2007). To recover tort damages, an employee
must satisfy a two-prong test:
[I]n order for an employer's act to lose the cloak of
immunity of N.J.S.A. 34:15-8, two conditions must be
satisfied: (1) the employer must know that his actions
are substantially certain to result in injury or death to
the employee, and (2) the resulting injury and the
circumstances of its infliction on the worker must be
(a) more than a fact of life of industrial employment
and (b) plainly beyond anything the Legislature
intended the [Compensation] Act to immunize.
[Laidlow, 170 N.J. at 617.]
Referred to as the conduct prong, the first prong may present factual
issues for a jury if the evidence, "when viewed in a light most favorable to the
employee, . . . could lead a jury to conclude that the employer acted with
knowledge that it was substantially certain that a worker would suffer injury."
Id. at 623. If so, the trial judge then moves to the second prong, referred to as
the context prong, which is a question of law, to "determine whether, if the
employee's allegations are proved, they constitute a simple fact of industrial
life or are outside the purview of the conditions the Legislature could have
intended to immunize under the Workers' Compensation bar." Ibid. When
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determining if the two-prongs of the Laidlow test are met, the court must
utilize a totality of the circumstances approach. Van Dunk, 210 N.J. at 470;
Laidlow, 170 N.J. at 614, 622.
Applying the Laidlow test to Richter's LAD bodily injury claim leads us
to reason that her claim is not barred by the Compensation Act's exclusive
remedy provision. Considering Richter's allegations in the light most
favorable to her as the non-moving party, Desiderio intentionally refused her
accommodation request, and it was substantially certain that she could suffer a
hypoglycemic event that could cause bodily injuries. This is not the "simple
fact of industrial life" envisioned by the Compensation Act.
Our conclusion is supported by our decision over twenty years ago in
Schmidt v. Smith, 294 N.J. Super 569, 585 (1996), where we recognized "there
is no language in the LAD that mandates that claims made by employees
against employers under it may only be brought under the" Compensation Act.
Given the LAD is remedial social legislation, it should be liberally construed
"in combination with other protection available under the laws of this state."
Id. at 586 (citing N.J.S.A. 10:5-3); see also Royster, 227 N.J. at 500-01.
Accordingly, Richter can present her bodily injury claims directly arising from
her LAD claim to the jury.
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B.
Should we allow Richter to present her bodily injury claim and the jury
award her damages, the Board contends that Millison and Calalpa v. Dae
Ryung Co., Inc., 357 N.J. Super. 220, 229 (App. Div. 2003), dictate that as her
employer and a defendant in her civil suit, it is entitled to a 100% credit of the
workers' compensation award it paid her. Richter asserts that she is not
looking for double recovery, but posits that under section 40, the Board or its
workers' compensation carrier is entitled to a credit of two-thirds of the
workers' compensation award with her counsel allowed the one-third balance
for counsel fees plus costs up to $750. Based upon our interpretation of
Millison, Calalpa and section 40, we favor Richter's argument.
In Millison, in addition to adopting the substantial certainty two-prong
test to determine if an employee can hurdle the exclusive remedy of filing a
worker's compensation claim, the Court also addressed the offsets for workers'
compensation benefits an employer was entitled to receive when it was held
liable in a civil action. 101 N.J. at 178, 187. The Court reasoned:
If . . . a plaintiff should prevail in his suit based on
intentional wrong, he would not be entitled to keep the
entire amount of his compensation award as well as
his civil suit remedy. That double recovery is to be
avoided is evident from so much of the Compensation
Act as demands that compensation claimants who
have recovered from third parties be required to
reimburse their employer or its insurance carrier for
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compensation payments already made. N.J.S.A.
34:15-40. Thus if the trier-of-fact determines that du
Pont and/or its doctors have been guilty of an
intentional wrong as a result of their alleged
fraudulent concealment of existing occupational
diseases, du Pont or its insurance carrier will be able
to offset compensation benefits previously paid to the
extent that the civil damage award would serve as a
double recovery.
[101 N.J. at 187 (emphasis added).]
The impact of Millison was clarified in Calalpa for situations, such as
here, where the potential
tortfeasor is the employer, [thus] the employer is not
"neutral" and, if entitled to a lien, would not in the tort
litigation "pay[] exactly the damages he or she
ordinarily pay . . . ," or "come out even." This is so
because, facially, the employer has paid damages from
its tort pocket, but took some of that payment back
from its workers' compensation pocket.
[357 N.J. Super 227-28.]
The workers' compensation carrier was entitled to a 100% credit, meaning "a
dollar for dollar lien" under section 40 for two reasons. Id. at 228, 231.
First, "the 'double recovery' referred to by the Millison Court within the
context of an injured employee's receipt of both workers' compensation
benefits and civil damages for the same injuries focuses upon the notion that
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an employee cannot have both." Id. at 228. In 1913, section 40 5 was enacted
to prevent an employee's double recovery. Under equitable considerations, an
employee cannot "retain all or a part of both his or her compensation benefits
and tort proceeds. . . ." Id. at 228-29. Thus, "the 'to the extent' language in
Millison probably reflects the Court's recognition that employer intentional
wrong is difficult to prove and a plaintiff, therefore, may well not obtain any
monies at all in the tort litigation." Id. at 229.
Second, "the 'third person' concept in [section 40] has been broadly
applied to both true third person tortfeasors and tortfeasors who are the
'functional equivalent.'" Id. at 229 (citing Frazier v. New Jersey Mfrs. Ins.,
142 N.J. 590, 598 (statutory lien applied to attorney malpractice damages);
Midland Ins. Co. v. Colatrella, 102 N.J. 612, 618 (1986) (statutory lien applied
to uninsured motorist insurance recovery)). "Where an employee has pierced
the threshold of the compensation bar, he or she has established that the
employer's conduct is beyond the 'natural risk[s] of' employment and does not
'arise[] out of' the employment relationship." Calalpa, 357 N.J. Super. at 229
5
Providing, in pertinent part, that an employee will be "guaranteed recovery
for his common-law damages against contributing third-party tortfeasors or for
his [workers'] compensation award, whichever is greater, but he may not
duplicate these recoveries."
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(citing Laidlow, 170 N.J. at 606.) Thus, the employer is no longer an
employer under the Compensation Act but "an actionable tortfeasor." Id.
Consequently, should the Board be found liable for Richter's bodily
injury claim under the LAD for failure to accommodate Richter as a "third -
party" tortfeasor, its lien on the jury award is pursuant to section 40. In this
statutory scheme, the Board's or its insurance carrier reimbursement is as
follows:
If the sum recovered by the employee or his
dependents from the third person or his insurance
carrier is equivalent to or greater than the liability of
the employer or his insurance carrier under this
statute, the employer or his insurance carrier shall be
released from such liability and shall be entitled to be
reimbursed, as hereinafter provided, for the medical
expenses incurred and compensation payments
theretofore paid to the injured employee or his
dependents less employee's expenses of suit and
attorney's fee as hereinafter defined.
[N.J.S.A. 34:15-40 (b).]
Therefore, if the award recovered by Richter is "equivalent to or greater
than the liability of the employer from an award," in this case, $28,733.84 for
medical bills and temporary disability benefits, the Board is allowed to keep
two-thirds with Richter's counsel being entitled to the remaining one-third for
counsel fees and costs not to exceed $750. N.J.S.A. 34:15-40 (b) and (e).
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Finally, we reject the Board's contention that Richter should not be able
to present her medical and lost wages as evidence. Without allowing the jury
to consider these damages, the trial court cannot determine whether the Board
is entitled to a section 40 lien.
Affirmed in part, reversed in part and remanded for trial. We do not
retain jurisdiction.
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