Lead Opinion
delivered the opinion of the Court.
We are called upon to determine whether in this action brought under New Jersey’s Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, the Appellate Division correctly reversed the trial court’s grant of summary judgment in favor of defendant Saint Clare’s Health System and against plaintiff Maryanne Grande, R.N. Because we conclude that, on the record before the trial court, issues of material fact exist, we affirm and modify the judgment of the Appellate Division and remand the matter to the trial court for further proceedings.
I.
A.
We glean the following facts from the record considered by the trial court, including Grande’s deposition, certifications by Saint Clare’s and its agents, various exhibits contained within each party’s summary judgment motion, and associated statements of material facts.
Grande has been a practicing registered nurse (R.N.) since 1985. She was employed by Saint Clare’s from approximately 2000 through July 2010. Beginning in about 2006, Grande worked in a hospital unit in which approximately half of the patients were stroke victims who required additional assistance with their daily living needs. Grande’s regular duties involved maintaining charts, administering medication
In August 2008, the hospital performed job system analyses for various nursing positions. The job analysis for R.N.s (Job Analysis) indicated the frequency with which job duties were to be performed and identified certain tasks as essential to the R.N. position regardless of how frequent their performance. The Job Analysis categorized occasional tasks as those performed “1-33% of the day” and frequent tasks as those performed “34-66% of the day.” Essential tasks were described as the “[ejssential function[s] of [the] job.” One essential duty of an R.N. is to lift fifty pounds from waist to chest “frequently.” According to the certification of Heather Jordan, Saint Clare’s human resources supervisor, the weightlifting requirements within the Job Analysis are identical for all R.N.-staffed units in the hospital.
Beginning in 2007, prior to the Job Analysis, Grande suffered a series of work-related
The second injury occurred in May 2008, when Grande felt pain in her right shoulder while repositioning a patient in bed. Grande reported the incident immediately to Saint Clare’s and saw a doctor, who performed a magnetic resonance imaging (MRI). The test found no injury, and Grande returned to full duty within two weeks. The record is unclear as to whether Grande’s work was restricted following the May 2008 injury.
In November 2008, Grande re-injured her left shoulder while lifting the legs of a 800-pound patient. As before, Grande immediately saw a doctor and reported the incident to her employer. Grande was unable to return immediately to work, underwent a second surgery on her left shoulder, and returned to full duty about six months after the incident.
Grande sustained her final injury in February 2010 when she was alone in a room caring for an overweight patient who was moving from a stretcher to a bed. While Grande stood on the far side of the bed, the patient began to fall. Grande leapt onto the bed, grabbed the patient’s shoulders from behind, and pulled the patient onto the bed and on top of herself. After doing so, Grande felt a sharp pain and believed she had re-injured her left shoulder, but an MRI revealed that she had injured her cervical spine. Grande underwent surgery and spent four months recovering and rehabilitating before returning to work. On her first day back, however, she left the hospital after just four hours because of residual pain. Two weeks later, Grande returned to full-time, light-duty work.
In early July 2010, Grande’s doctor cleared her to resume full-duty work. The hospital informed Grande that, before returning to full duty, she would have to undergo physical testing. Lori Briglio, the nurse case manager overseeing Grande’s workers’ compensation claim, instructed Grande to report to Kinematic Consultants, Inc. (KCI) for a functional capacity evaluation (FCE).
Grande complied and underwent the examination, which tested her ability to perform a variety of physical tasks, including turning her head, demonstrating mobility in her limbs, lifting objects from different heights, turning in different directions, pushing and pulling, and carrying weights. The report documenting the evaluation (KCI Report) provided results in several categories and compared Grande’s ability with her employer’s requirements and with the standards set forth in the Dictionary of Occupational Titles (D.O.T.).
The KCI Report also provided several conclusions about Grande’s performance throughout the evaluation and her work abilities. The Report acknowledged that Grande had “demonstrated maximum effort” throughout the evaluation and confirmed that the documented results “are considered to be valid.” The Report noted that Grande’s results “may be compatible with mild residual functional issues, as per complaints and/or diagnosis,” but concluded that “[i]t is improbable that this will significantly affect job performance ability.”
The Report also explained that Grande qualified to return to work on “altered duty” based on the Report’s recommendations. Due to Grande’s previous cervical surgery, the Report recommended that Grande be “allowed changes in activities during periods of prolonged or repetitive” neck movements. The Report also recommended that Grande “seek appropriate assistance with heavier physical activities such as patient transfers, guarding ambulatory patients or handling loads” greater than fifty pounds.
Overall, the KCI Report concluded that Grande
demonstrate[d] ability for Medium category work (occasional lift and work up to 50 lbs.) with the above noted job movement demand changes. She demonstrate!)!] ability for administrative/supervisory duties, verbal instruction to patients/care givers, assisting physicians with examinations, assisting with wound care/dressing changes, dispensation of medications, pushing wheelchairs, assisting with moderate patient care, handling loads up to 50 lbs., etc.
Shortly after the KCI Report was issued, Briglio contacted KCI via e-mail to clarify several aspects of the Report, including the portions of the job description that Grande could not fulfill and the accommodations she would require.
On July 21, 2010, following the functional capacity evaluation, Dr. Spielman re-examined Grande. He provided her with a form that indicated she could return to work the next day with restrictions, “per [the] FCE.” Briglio, in turn, advised the hospital that Dr. Spielman “agreed with the FCE report and advised that [Grande] should have permanent restrictions of lifting up to 50 lbs occasionally and that she
The following day, Grande was summoned to a meeting with her supervisors, at which she was fired. Grande testified in her deposition that she was told she had limitations that would prevent her from doing her job.
After her termination, Grande again visited Dr. Spielman, who issued another return-to-work form on August 25, 2010, clearing Grande to return immediately to full-time, full-duty work with no limitations. Grande submitted the new work authorization to Saint Clare’s, but Saint Clare’s refused to rehire her.
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Nearly a year after her discharge, Grande filed a two-count complaint against Saint Clare’s, alleging violations of N.J.S.A. 10:5-4.1, a subsection of the LAD. The first count alleged that Saint Clare’s unlawfully discriminated against Grande based on her disability, and the second count alleged unlawful discrimination based on a perceived disability,
Saint Clare’s denied liability and, following discovery, filed a motion for summary judgment. In a certification supporting that motion, Saint Clare’s human resources supervisor, Jordan, asserted that “Grande was physically unable to perform an essential function of her job” and expressed “concern[ ] that Ms. Grande would be re-injured or that a patient would be injured if [Grande] returned to full duty.” Jordan also certified that the decision to terminate Grande’s employment was based on the findings in the KCI Report and the July 2010 recommendation of Grande’s own physician.
Grande filed a cross-motion for summary judgment. She conceded that she had periods of disability due to work-related accidents but asserted that she surpassed the D.O.T. weight-lifting requirements for nurses in her field, as reflected on the KCI Report. Grande also alleged that the weight-lifting requirements specified in the KCI Report were “fictitious” because the standards were “far higher” than those required by the D.O.T. and “ha[d] not been shown to have ever been adopted by Saint Clare’s.” She also contended that the hospital improperly interpreted the KCI Report’s recommended lifting restrictions as actual limitations on her abilities, highlighting that she had, in fact, lifted ninety-two pounds from waist to shoulders during the evaluation, far above her employer’s fifty-pound requirement.
The tidal court granted summary judgment in favor of Saint Clare’s, finding that Grande did not establish a prima facie ease of discriminatory discharge because she “failed to articulate whether she was performing (or was able to perform) her job at a level that met the employer’s legitimate expectations.”
A divided Appellate Division panel reversed, vacating summary judgment and remanding because the record contained several material facts in dispute that could only be resolved by a jury. According to the majority, “the motion court incorrectly resolved these materially disputed facts in
Here, plaintiff produced competent evidence, in the form of her treating physician’s certification, stating she had been medically cleared to return to work without restrictions. Defendant has not rebutted that medical opinion with the opinion of another physician. Instead, defendant relies on the results of a “functional capacity evaluation [FOE] test” conducted by an alleged independent company retained by defendant’s Department of Human Resources. KCI’s report contains facially equivocal findings with respect to plaintiffs abilities to perform the core requirements of a nurse,
The dissenting member of the panel emphasized that “[t]he law should not place a hospital in a position of sacrificing employee and patient safety in order to avoid potential liability for discrimination” and that the hospital “could sensibly rely on [Grande’s] actual work history [and history of injuries] when it placed safety interests above [her] continued employment.” The dissent also found no genuine factual disputes because “at the time the hospital made its decision to terminate [Grande], her treating physician had stated she could return to work, but only with lifting restrictions” — a recommendation which was modified “only after the hospital had already terminated [Grande’s] employment.”
Saint Clare’s filed this appeal as of right pursuant to Rule 2:2-1(a)(2), limited to whether summary judgment was appropriately awarded to the hospital by the trial court on the facts in the record before it. We granted amicus curiae status to the New Jersey Association for Justice (NJAJ) and the National Employment Lawyers Association of New Jersey (NELA-NJ).
II.
A.
Saint Clare’s argues that the LAD, its implementing regulations, and New Jersey employment discrimination jurisprudence authorize Grande’s termination. Saint Clare’s concedes that Grande is disabled under the LAD but agrees with the trial court that she failed to establish a prima facie case because she could not prove she was performing her job to the hospital’s legitimate expectations. Saint Clare’s highlights that Grande was working light duty at the time of her discharge, and both the KCI Report and Grande’s physician confirmed that she could return to her regular duties only with lifting restrictions.
Even if Grande established a prima facie case, Saint Clare’s maintains, the termination of her employment was legal. The hospital cites various provisions of the LAD, including N.J.S.A. 10:5 — 5(q), -2.1, -4.1, and -29.1, which provide that an employer may terminate a disabled employee who, in the reasonable opinion of the employer, is unable to perform adequately her job duties. The hospital also relies on N.J.AC. 13:13-2.8, which allows an employer to terminate a disabled employee if her continued employment “would be hazardous to the safety or health of such individual, other employees, clients or customers.” Saint Clare’s maintains that its decision to discharge Grande was appropriate because, unlike the employer’s improper reliance on a deficient medical report in Jansen v. Food Circus Supermkts., Inc., 110 N.J. 363,
B.
Grande contends that Saint Clare’s admission — that it fired her because of her perceived disability — is direct evidence of discrimination and, thus, Jansen does not require her to prove a prima facie case. Instead, Grande maintains that the burden rests on Saint Clare’s to assert an affirmative defense, which the hospital failed to do by competent medical or scientific evidence. Grande argues that because Saint Clare’s failed to follow up with her treating doctor, there is no competent evidence that she was a risk to herself or patients or that she could not perform her job duties.
Finally, Grande claims that certain factual issues remain in dispute, including (1) the applicability of Saint Clare’s purported lifting requirements to R.N.s in Grande’s position; (2) the number of injuries she sustained; (3) whether she would need assistance handling loads over fifty pounds; and (4) that she is likely to suffer future injury.
C.
Amici NJAJ and NELA-NJ agree with both parties that Jansen provides the controlling test on disability discrimination under the LAD. NJAJ asserts that Saint Clare’s made the same error here as the employer in Jansen — it improperly assumed that there was a probability of future injury without relying on an expert report linking Grande’s perceived disability to a probability of substantial harm.
NELA-NJ adds that because Grande presented direct evidence of discrimination, the only issue is “whether Saint Clare’s met its burden of proving ‘it would have made the same decision even in the absence of the impermissible consideration’ ” (quoting Bergen Commercial Bank v. Sisler, 157 N.J. 188, 209,
III.
Turning to the law relevant to the parties’ arguments, the LAD prohibits an employer from terminating a disabled employee because of her disability unless the disability “reasonably precludes the performance of the particular employment.” N.J.S.A. 10:5-4.1. The law governing an action “seeking redress for an alleged violation of the LAD” depends upon whether the employee “ ‘attempts] to prove employment discrimination by ... direct or circumstantial evidence.’ ” Smith v. Millville Rescue Squad, 225 N.J. 373, 394,
A.
To prove a discriminatory discharge case by direct evidence, a plaintiff “must produce evidence ‘that an employer placed substantial reliance on a proscribed discriminatory factor in making its decision’ ” to terminate the employee. Smith, supra, 225 N.J. at 394,
“After the plaintiff sets forth ‘direct evidence of discriminatory animus, the employer must then produce evidence sufficient to show that it would have made the same decision if illegal bias had played no role in the employment decision.’ ” Smith, supra, 225 N.J. at 395,
B.
If direct evidence of discrimination is unavailable, a plaintiff may prove her claim by circumstantial evidence. To evaluate circumstantial evidence cases, this Court has adopted the three-step burden-shifting test articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
1.
The first step of our modified framework requires that a plaintiff establish a prima facie ease. Jansen, supra, 110 N.J. at 382,
As to the first prong of the prima facie case, an employee who is perceived to have a disability is protected just as someone who actually has a disability. Victor v. State, 203 N.J. 383, 410,
The second prong — whether the employee is able to perform at a level that meets “legitimate or reasonable expectations” — is to be evaluated by an objective standard. Viscik v. Fowler Equip. Co., 173 N.J. 1, 21,
The fourth prong requires proof that the “employer sought a replacement with qualifications similar to [the employee’s] own, thus demonstrating a continued need for the same services and skills.” Sisler, supra, 157 N.J. at 218-19,
2.
If a plaintiff successfully establishes a prima facie case, “a presumption arises that the employer unlawfully discriminated
If the employer claims that it has a non-discriminatory reason for the discharge, “the burden of production — not the burden of proof or persuasion — shifts to the employer.” Ibid. The employee may respond by proving by a preponderance of the evidence that the reason proffered by the employer “was not the true reason for the employment decision but was merely a pretext for discrimination.” Id. at 382-83,
If, in the second step, “the employer defends by asserting that it reasonably concluded that the handicap prevented the employee from working,” the employer bears the burden of proof as to its defense, and not a mere burden of production. Id. at 383,
One possible basis for the employer’s affirmative defense is safety. Recognizing the importance of safety in the workplace, the LAD regulations and this Court have made clear that an employer may terminate a disabled employee where continued employment “would be hazardous to the safety or health of [the employee], other employees, clients or customers.” N.J.A.C. 13:13—2.8(a)(2); Jansen, supra, 110 N.J. at 374,
C.
In addition to the above analysis, the LAD regulations require an evaluation of whether a reasonable accommodation would have allowed the disabled employee to perform her job. The Administrative Code mandates that an employer “consider the possibility of reasonable accommodation before firing, demoting or refusing to hire or promote a person with a disability on the grounds that his or her disability precludes job performance.” N.J.A.C. 13:13—2.5(b)(2); see also Viscik, supra, 173 N.J. at 19-20,
We have yet to determine, outside of a failure-to-accommodate claim, at what point in the McDonnell Douglas analysis a court is to consider the availability of a reasonable accommodation. In discriminatory discharge cases, the Appellate Division has addressed reasonable accommodations in its analysis of the second prong of a plaintiffs prima facie case, where the employee must produce evidence that she was performing her job to her employer’s expectations. See, e.g., Svarnas v. AT&T Commc’ns, 326 N.J.Super. 69, 74-81,
In assessing “allegations of unlawful discrimination, this Court has looked to federal law as a key source of interpretive authority.” Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97,
Accordingly, we hold that the reasonable-accommodation consideration belongs in the second-prong analysis. A plaintiff may satisfy the second prong of the prima facie case for an allegation of discriminatory discharge based on a disability by putting forth evidence either that she was actually performing her job or was able, with or without reasonable accommodation, to perform her job to her employer’s legitimate expectations.
An employer may rebut a plaintiffs reasonable-accommodation showing by providing evidence that the proposed accommodation is unreasonable. See N.J.A.C. 18:13—2.5(b); -2.5(b)(3)(i) to (iv).
IV.
Before turning to the proofs necessary to establish Grande’s LAD claim, we must first determine whether this is a case of direct or circumstantial evidence. We note that the Appellate Division did not directly address this question, but the majority opinion references Jansen, indicating that, like the trial court, it was applying the McDonnell Douglas circumstantial evidence framework to Grande’s claim.
The parties contend that this is a direct evidence case because Saint Clare’s admits that Grande’s disability motivated its decision to terminate her. We disagree. Saint Clare’s concedes that Grande is disabled under the LAD and admits that it fired her because her perceived disability precluded her from performing as a R.N. Nonetheless, Grande has produced no evidence of discriminatory animus toward disabled employees. She alleges that the lifting standards identified in the KOI Report and the 2008 Job Analysis do not reflect the actual requirements of her job. Grande has not shown, however, that those requirements apply only to R.N.s with disabilities or are otherwise entirely unrelated to the performance of a R.N.’s duties. See A.D.P., supra, 428 N.J.Super. at 534-35,
We acknowledge that, in LAD claims alleging discrimination based on other protected classes, such as race, sex, national origin, or marital status, an employer’s admission that a protected characteristic motivated its employment decision would be direct evidence of discrimination. See, e.g., Smith, supra, 225 N.J. at 397-99,
V.
Having concluded that this is a circumstantial evidence ease, we apply the McDonnell Douglas framework to determine the proofs necessary to establish Grande’s LAD claim and whether summary judgment was appropriately granted in Saint Clare’s favor. We review Saint Clare’s motion for summary judgment using the same standard applied by the trial court — whether, after reviewing “the competent evidential materials submitted by the parties” in the light most favorable to Grande, “there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law.” Bhagat v. Bhagat, 217 N.J. 22, 38,
A.
We first consider Saint Clare’s argument that it was entitled to summary judgment because Grande failed to state a prima facie case. Once again, under our modified McDonnell Douglas analysis, Grande must establish a prima facie case by putting forth evidence that: (1) she is disabled within the meaning of the LAD; (2) she was actually perfonning her job or was able, with or without reasonable accommodation, to perform her job at a level that met Saint Clare’s legitimate expectations; (3) she was discharged; and (4) Saint Clare’s sought someone else to perform the same work after she left. See Jansen, supra, 110 N.J. at 382,
It is undisputed that Saint Clare’s perceived Grande as disabled and terminated her from her R.N. position. Further, neither party claims that whether Saint Clare’s filled or eliminated Grande’s nursing position is pertinent to the summary judgment motion under consideration. Therefore, only the second prong remains at issue.
Saint Clare’s argues that Grande failed to satisfy that second prong because her lengthy absences are proof that she was not performing her job. Cf. Svarnas, supra, 326 N.J.Super. at 77,
Grande argues that she made a showing sufficient to withstand summary judgment under the second prong by putting forth evidence that she was employed for ten years and her performance was “exemplary.” She relies on Zive, supra, where this Court stated that the “slight burden of the second prong is satisfied” when a plaintiff “adduces evidence that [s]he has, in fact, performed in the position up to the time of termination.” 182 N.J. at 455,
In Zive, the employee suffered a stroke, after which he did not take time off from work but instead worked from home for three months while recovering. Id. at 442-43,
We nevertheless agree with Grande that the modest burden to withstand summary judgment as to the second prong of the prima facie case has been met. An issue of fact exists as to whether Grande’s periods of absence from work were sufficiently “chronic and excessive,” Svarnas, supra, 326 N.J.Super. at 77,
We additionally note that, as the parties acknowledged in oral argument, the record is rather undeveloped as to any reasonable accommodation that would allow Grande to perform the essential functions of her job despite her disability. While the record is silent as to specifics, it does indicate that Saint Clare’s considered accommodations that could potentially allow Grande to continue her employment, but that no reasonable accommodation existed. Grande maintains that she needed no accommodation. Therefore, we see no reason to allow additional discovery to develop the record in this regard, and we remand for trial on the record as it stands.
B.
Having concluded that factual disputes exist as to Grande’s prima facie ease, we now turn to Saint Clare’s alternate claim that, even if Grande has established a prima facie case, Saint Clare’s is entitled to summary judgment on the basis of the defenses it asserted under the second McDonnell Douglas step.
Saint Clare’s admits that it fired Grande because of her disability but claims that the firing was justified because Grande was both unable to perform the essential functions of her job and unable to do so without posing a risk of harm to herself or others. The hospital bears the burden of proof as to its defenses. Jansen, supra, 110 N.J. at 383,
1.
To prove its claim that Grande’s perceived disability precluded her from performing as a R.N., Saint Clare’s must show that “it reasonably arrived at [its] opinion.” Andersen, supra, 89 N.J. at 499-500,
Saint Clare’s maintains that it met this burden by relying on the KCI Report, which is more comprehensive than the cursory medical examination we found insufficient in Andersen, supra, 89 N.J. at 500,
While we acknowledge that the KCI Report here is more than a cursory evaluation, we find it presents material issues of
The KCI Report, on the other hand, lists the following as the hospital’s requirements: constantly (67% to 100% of the day) lift twenty pounds, frequently lift fifty pounds, and occasionally lift 100 pounds. The addendum to the KCI Report indicates that the Report’s standards were based on a job description provided by the hospital but does not confirm whether that job description is the 2008 Job Analysis. The record is also silent as to why the KCI standards differ from those listed on the Job Analysis. Grande contends that the standards on neither the KCI Report nor the Job Analysis reflect what she actually does in her position. Thus, from the record before us, we cannot discern which tasks were essential to Grande’s job.
Second, there is a dispute as to whether the KCI Report conclusively establishes that Grande is unable to perform her job. The Report indicates that, in some categories, Grande’s ability was below the hospital’s standards, The Report also states, however, that while the results “may be compatible with mild residual functional issues,” “[i]t is improbable that this will significantly affect job performance ability.” The addendum to the report makes clear that “determination for final return to work abilities ... is deferred to [Grande’s] treating physician.” Dr. Spielman had cleared Grande to return to full-time, full-duty work on July 8, 2010, four days before the FCE was performed. Although Dr. Spielman subsequently restricted Grande’s work pursuant to the FCE, Grande disputes that such restrictions were permanent.
These factual disputes are material to the issue of whether Grande’s disability precluded her from performing the essential functions of her job.
2.
Saint Clare’s also maintains that Grande’s history of injuring herself on the job sufficiently proved her inability to perform her job without posing a risk of harm to herself or others.
To assert this defense, Saint Clare’s “must establish with a reasonable degree of certainty that it reasonably arrived at the opinion that [Grande’s] handicap presented a materially enhanced risk of substantial harm in the workplace.” Jansen, supra, 110 N.J. at 383,
Refusal to select a person with a disability may be lawful where it can be demonstratedthat the employment of that individual in a particular position would be hazardous to the safety or health of such individual, other employees, clients or customers where hazard cannot be eliminated or reduced by reasonable accommodation. Such a decision must be based upon an objective standard supported by factual or scientifically validated evidence, rather than on the basis of general assumptions that a particular disability would create a hazard to the safety or health of such individual, other employees, clients or customers. A “hazard” to the person with a disability is a materially enhanced risk of serious harm.
[N.J.A.C. 13:13—2.8(a)(2) (emphases added).]
Thus, the Administrative Code requires that an employer base its conclusion to terminate an employee on “factual or scientifically validated evidence.” Ibid.
Here, viewing the facts in the light most favorable to Grande, she sustained at least three disabling injuries for which she was required to be absent from work. After each of the first two injuries, however, she was cleared to return to work and did so. After the final injury, Grande’s physician also cleared her to return to regular duty prior to her termination.
There is no indication in the record that plaintiff caused injury to the patients in the course of incurring her own injuries. Moreover, the KOI Report only recommends that Grande be assisted in attempting to lift more than fifty pounds, even though she was able to lift much heavier loads during testing. The Report says nothing about Grande’s ability to otherwise perform her job without causing injury to patients or to herself.
Furthermore, there is no expert testimony that Grande’s perceived susceptibility to injury posed a “materially enhanced risk of serious harm” to herself or her patients. N.J.A.C. 13:13-2.8(a)(2); accord Jansen, supra, 110 N.J. at 374-75,
In affirming the requirements set forth in Jansen, we remain cognizant of the need for safe work environments. Our holding today is not intended to limit an employer’s ability to promulgate safety standards or to require of its employees the physical ability to safely perform their duties. Nonetheless, when terminating a disabled employee because of an inability to abide by such standards, an employer must prove that its standards relate to the employee’s duties and that no reasonable accommodation exists that will allow the employee to continue in her position.
VI.
For the reasons set forth above, the judgment of the Appellate Division is affirmed as modified, and the matter is remanded to the trial court for further proceedings.
Notes
The only job description provided by the hospital is the Job Analysis, prepared in 2008, eight years after Grande began working at Saint Clare's. The description indicates that it applies to "Job Title: Nursing, RN, LPN, NA; Acute Care, Medical-Surgical, Emergency Services.” It makes no distinction between R.N.s working in the stroke ward and those in acute care, medical-surgical, or emergency services. There is nothing in the record that indicates a similar job description existed prior to 2008.
The D.O.T. was "a catalogue of the occupational titles used in the U.S. economy" and was intended to provide "reliable descriptions of the type of work performed in each occupation.” John C. Dubin, The Labor Market Side of Disability-Benefits Policy and Law, 20 S. Cal. Rev. L. & Soc. Lust. 1, 3 n.7 (2011) (citation omitted). The U.S. Department of Labor published its last updated edition of the D.O.T. standards in 1991. Ibid. The D.O.T. was subsequently replaced with the Occupational Information Network, also known as the O*NET database, last revised in 2010. See About O*NET, O*NET Resource Center, https:// www.onetcenter.org/overview.html.
Briglio’s e-mail is not in the record before this Court, but KCI’s response quotes from her e-mail.
In Grande's complaint, she alleged that the hospital provided her with a letter confirming her termination and stating that the results of the functional capacity evaluation "indicated specific restrictions" and the hospital was "unable to make accommodations or find a comparable position that w[ould] accommodate [Grande's] medical requirements,” A copy of that letter is not in the record before us,
Earlier versions of the LAD used the word "handicap" rather than "disability.” See Victor v. State, 203 N.J. 383, 398 n.3,
In Raspa v. Office of Sheriff of Cty. of Gloucester, the plaintiff conceded that his medical limitation — degenerating eyesight — rendered him "unable to perform any of the essential functions" of his position as a corrections officer, and the evidence showed "no objectively viable and reasonable accommodation would ever make" the plaintiff qualified to perform those essential functions. 191 N.J. 323, 328, 338,
Because the August 2010 return-to-worlc certificate issued by Grande’s doctor clearing her to return to full-time, full-duty work with no limitations postdated her discharge by Saint Clare’s, it is not relevant to our determination.
Concurrence Opinion
concurring.
I concur in the majority opinion remanding this disability discrimination matter for trial. I agree that plaintiff has met her pretrial obligation to present a prima facie case of unlawful discrimination under our Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, entitling her to a determination by a jury of the material factual disputes between the parties. However,
First, I write to underscore that, in order for a disability discrimination claim to survive a summary judgment motion, the showing required of a terminated plaintiff regarding her ability to perform the essential functions of her job is a modest one. Although this matter involves a number of disputes as to plaintiffs job requirements and defendant’s justification for terminating her, such disputes do not deprive plaintiff of her opportunity to have the matter heard by a jury. And, plaintiffs pretrial showing certainly should not require her to resolve issues that more properly belong in the employer’s required presentation. Second, I write to observe that this matter is a missed opportunity to reassess the convoluted frameworks we have adopted to evaluate LAD disability discrimination cases. To the extent those frameworks apply, I also agree with the parties that this matter would be better and more effectively analyzed as a direct evidence case.
I.
All parties agree that Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363,
The Court stated that when the employer makes such an admission, “fairness suggests that the employer bear the burden of persuasion that ‘the nature and extent of the handicap reasonably precludes the performance of the particular employment.’ ” Ibid, (quoting N.J.S.A. 10:5-4.1 (1988)).
The Court recognized both the strong public policy underlying the LAD’s protection of disabled employees and the countervailing interest of employers in the ability to fire or refuse to hire employees who cannot safely perform a job. Jansen, supra, 110 N.J. at 374,
The Jansen Court reiterated that, as part of a prima facie case, a plaintiff must establish: (1) that he was disabled within the meaning of the LAD, “(2) that he was performing his job at a level that met his employer’s legitimate expectations, (3) that he nevertheless was fired, and (4) that the [employer] sought someone to perform the same work after he left.” Id. at 382,
Zive v. Stanley Roberts, Inc., 182 N.J. 436, 451-56,
The majority recognizes that there are disputed facts about plaintiffs essential job functions and whether she can perform them. I agree that those issues must be resolved by a jury, and therefore I concur in this judgment. That said, Jansen and Zive provide all the guidance necessary to understand the standai'ds governing plaintiffs pretrial prima facie case, and plaintiff has met those standards. The majority differentiates this case from Zive, asserting that Zive did not address reasonable accommodation or an employee’s extended absence from work prior to seeking return from a workers’ compensation leave due to a work injury.
II.
Jansen insightfully instructed that if an employer wants to assert safety as its justification for terminating an employee, it must bear the burden of persuasion on that point. Although the context is different, the facts of this case are similar to the facts of Jansen. Like in Jansen, in this case an employer has terminated an employee, admittedly on the basis of a physical disability. This case is also like Jansen in that there has been no expert report produced for trial that clearly addresses the probability of future harm due to the asserted disability. Under Jansen, supra, the question to be addressed is whether Saint Clare’s has established “with a reasonable degree of certainty that it reasonably arrived at the opinion that the employee’s handicap presented a materially enhanced risk of substantial harm in the workplace.” 110 N.J. at 383,
As in Jansen, the elements of an employee’s pretrial prima facie case to prove discriminatory intent are not the center of this dispute because Saint Clare’s has admitted that it terminated Grande based on her disability. And, under Zive, plaintiff has adduced some proof that she was capable of performing her job. While Saint Clare’s asserts that lifting is an essential function of plaintiffs job as a registered nurse and that plaintiff did not demonstrate during her KCI examination that she met the employer’s lifting standards, those facts are heavily disputed. Consistent with the regulations implementing the LAD, Saint Clare’s bears the ultimate burden of demonstrating that “as a result of [plaintiffs] disability, [she] cannot perform the essential functions of the job even with reasonable accommodation.” N.J.A.C. 13:13-2.8; see also N.J.S.A. 10:5-29.1 (requiring clear showing of employee’s inability to perform job).
To the extent that Saint Clare’s is asserting a safety defense, it also bears the burden of proof on that defense. Plaintiff will be required to rebut Saint Clare’s proofs on that defense before the factfinder, once the groundwork for a safety defense has been established. She has already proffered evidence of her differing view of the facts about the job and her ability to perform it.
So, in this case, there are material factual disputes regarding whether plaintiff has demonstrated her objective ability to do the job — with or without reasonable accommodation, as the majority adds — according to legitimate job standards. Those factual issues to be resolved are distinct from the employer’s claimed safety concerns. Still, N.J.S.A. 10:6-29.1 requires that “[ujnless it can be clearly shown that a person’s disability would prevent [her] from performing a particular job, it is an unlawful employment practice to deny to an otherwise qualified person with a disability the opportunity to ... maintain employment” (emphasis added). Thus, at trial, Saint Clare’s must bear the burden as to whether its conclusion that plaintiff could not perform her job was reasonably arrived at, in addition to the burden as to its safety defense.
To the extent that the majority mentions absenteeism as an issue to be explored at trial, I must point out that absenteeism was not relied upon as a reason for plaintiffs termination and should not become a new reason to justify the adverse job action, particularly when the employee’s absences were all due to legitimate job injuries for which the employer bears some responsibility under the social compact established under workers’ compensation law. To use plaintiffs prior injuries as a rationale to terminate her, or to use them as a predictor of future inability to do the job, risks contravention of this state’s public policy. And, as the Appellate Division majority underscored, probability, not mere possibility, is the test for reasonably predicting future safety issues.
III.
In addition to the points discussed above, I am compelled to point out the following with respect to the future direction of this important area of law.
A.
First, numerous courts have been reflecting on the development of discrimination litigation and on steps to simplify proof obligations in these cases rather than add to them. In particular, disability discrimination claims have provoked such attention, likely because they frequently involve an exclusive focus on the asserted justifications for disparate treatment rather than an inquiry into employer motivation.
In my view, this Court in Jansen took initial steps in directing how such claims should be handled straightforwardly. It would be my preference for this Court to continue down that path.
Courts across the country have struggled to articulate the most appropriate standard for disability discrimination claims, which differ from other types of discrimination claims in that they often involve an admission by the defendant that a plaintiff’s disability motivated a discriminatory action. As the majority notes, we
“[A]n employee may survive an employer’s motion for summary judgment in one of two ways.” The first is to produce “direct evidence of discrimination,” which is evidence that shows “a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” If the employee does not have direct evidence of discrimination, he or she may “show[] a genuine dispute for trial under the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).”
[Evance v. Trumann Health Servs., LLC,719 F.3d 673 , 677 (8th Cir. 2013) (alterations in original) (internal citations omitted) (quoting St. Martin v. City of St. Paul, 680 F.3d 1027, 1033 (8th Cir. 2012)).]
Dissatisfaction with the strict categorization of evidence along those two lines exists, however. In the Seventh Circuit, a majority of judges have “join[ed] in the growing chorus of opinions ... that have expressed frustration with the confusing ‘snarls and knots’ of this ossified direcVindirect paradigm, and that have suggested a more straightforward analysis of whether a reasonable jury could infer prohibited discrimination.” Hitchcock v. Angel Corps, Inc.,
Such cases highlight that the relevant inquiry in a discrimination case is whether there is a triable issue of fact over the allegation that plaintiff has been subjected to invidious discrimination. Whether a plaintiff attempts to prove discrimination with circumstantial evidence, direct evidence, or some combination of both, the summary judgment analysis should be crafted to address the core issue of causation. In the disability context, a number of subsidiary issues can complicate evaluation of a plaintiffs claim. Those issues include, but are not limited to: (1) the nature and extent of the plaintiffs disability, including the medical evidence relied upon by an employer to support an employment decision; (2) whether the employer considered available reasonable accommodations before making its decision; and (3) whether a particular accommodation would be reasonable or would pose an undue burden for the employer.
In the federal context, courts assessing ADA claims have adopted various approaches to these issues but have not shoehorned all of them into the McDonnell Douglas framework, even in eases where circumstantial proofs were at issue. Several courts have even expressed skepticism that McDonnell Douglas is useful at all in a case where the employer concedes that an employee’s disability motivated its employment decision. For example, in Osborne v. Baxter Healthcare Corp.,
This case provided the Court with the opportunity to clarify and simplify the pretrial analysis of disability discrimination claims where no analysis of purported pretext or mixed motives is required, The majority does not seize that opportunity. I would step back and critically rethink our law. In keeping with this Court’s prior jurisprudence and the progressive policies expressed in the LAD and its implementing regulations, the Court should always adopt a remedial approach to LAD claims and, in implementing the statute, should do so in a manner that will most effectively further the purpose of eradicating invidious discrimination. See Nini v. Mercer Cty. Cmty. Coll., 202 N.J. 98, 108-09,
B.
Second, it is worth recalling that the elements of the McDonnell Douglas prima facie case exist as a tool to help plaintiffs raise an inference of disparate treatment by an employer. Here, the employer explicitly admits to treating an employee differently based on a disability or perceived disability. Accordingly, application of the McDonnell Douglas burden-shifting framework does not serve a useful purpose.
The Jmsen paradigm focuses attention in disability discrimination cases on whether the employer has met its burden to justify terminating the employee. Although it referenced the McDonnell Douglas framework, the Jansen Court treated its analysis of the proofs in that matter as if it were dealing with a direct-evidence ease. By focusing the parties directly on the area of dispute and the obligation of the employer to bring the adverse action within the sphere of justifiable disparate treatment on the basis of disability, the Jansen Court set forth a straightforward method of dealing with what was essentially direct evidence of disability discrimination. The Jansen Court differentiated between the employer who “seeks to establish the reasonableness of the otherwise discriminatory act” and one who “advances a non-discriminatory reason for the employee’s discharge.” 110 N.J. at 382,
If ... the employer defends by asserting that it reasonably concluded that the handicap prevented the employee from working, the burden of proof — as distinguished from the burden of production — shifts to the employer to prove that it reasonably concluded that the employee’s handicap precluded performance of the job. When asserting the safety defense, the employer must establish with a reasonable degree of certainty that it reasonably arrived at the opinion that the employee’s handicap presented a materially enhanced risk of substantial harm in the workplace.
[Id. at 383, 541 A.2d 682 .]
Disability discrimination in employment is different from other forms of unlawful discrimination because, unlike discrimination based on other proscribed characteristics like race or sex, discrimination based on disability is not prohibited if “the nature and extent of the disability reasonably precludes the performance of the particular employment.” N.J.S.A. 10:5-4.1. This Court, like others, has recognized the difference implicated in disability discrimination claims. See Zive, supra, 182 N.J. at 447,
Like all of the parties, including Saint Clare’s, and the amici before the Court, I would recognize that this case involves direct evidence of discrimination rather than circumstantial evidence. By properly identifying the type of evidence at issue, the Court could have more plainly identified the remaining issues for trial: the plaintiff should be expected to bear the burden of showing that she was the victim of disparate treatment based on disability or pei’ceived disability, and the employer should bear the burden of proof to justify its action.
C.
Whether this matter is called a direct evidence case or a circumstantial evidence case may not ultimately be of much consequence because the majority has correctly directed this matter to proceed to trial.
That said, to the extent that the majority asserts that this cannot be a direct evidence case because plaintiff does not present any evidence that Saint Clare’s has exhibited hostility toward disabled persons as a class, I disagree. We should not perpetuate confusion over the role of hostility in distinguishing between direct and circumstantial evidence cases. That misunderstanding can be traced to a comment in Bergen Commercial Bank v. Sisler, 157 N.J. 188,
The above-quoted statement in Sisler, stemming from Justice O’Connor’s concurring opinion in Price Waterhouse, can fairly stand only for the proposition that stray remarks or other evidence that an employer disfavors a protected group, though probative, ai'e not enough to provide direct evidence of a discriminatory intent underlying any particular employment decision. See Price Waterhouse, supra, 490 U.S. at 277, 109 S.Ct. at 1804,
Outside of the mixed-motive context, a blanket requirement that “hostility” be shown to allow reliance on direct evidence is misguided. That is particularly true in the area of disability discrimination, where we have long recognized that unconscious discrimination-based on generalities, stereotypes, and assumptions regarding the capabilities of individuals with disabilities — can be just as invidious as discrimination based on malice. See Jansen, supra, 110 N.J. at 378,
To recognize that plaintiffs claim rests on direct evidence is not to say that there are no factual disputes left to be resolved. Here there are several important factual disputes. Plaintiff says that her employer has concocted the asserted “essential” lifting functions of the job by which she is being measured. She says she is not disabled and can do the job. She says that the testing by KCI showed that she can perform the necessary lifting associated with her job. And, finally, although she never requested accommodation and was never offered any accommodation by her employer, the employer failed to explain why it could not “meet her needs,” to the extent it perceived that she needed disability accommodation, even though there was no discussion with her or her doctor concerning those needs.
Jurisprudence on the ADA supports that disputes over what is an essential function of the job and whether an employee can perform the job notwithstanding a disability, or perceived disability, are for a jury to decide. They are not issues for the employer to decide unilaterally. One need only look to our own Circuit Court of Appeals to see that such factual issues compel a matter to proceed to trial. See Deane v. Pocono Med. Ctr., 142 F.3d 138 (3d Cir. 1998) (en banc) (addressing similar claim brought under ADA by registered nurse terminated by her employer hospital due to alleged inability to meet physical lifting requirements). In Deane, the Third Circuit “decline[d] to apply conclusive effect to either the job description or [the hospital’s] judgment as to whether heavy lifting is essential to [the plaintiffs] job,” Id. at 148.
To conclude, I agree that summary judgment was improperly granted to Saint Clare’s. I concur in the majority’s determination
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
Jansen quotes a prior version of the statute, which has been amended to refer to whether "the nature and extent of the disability reasonably precludes the performance of the particular employment." L. 2003, c. 180 (codified at N.J.S.A. 10:5-4.1).
The Jansen Court briefly referred to the second prong of a prima facie case, respecting an employee’s ability to perform a job, noting that "[i]n some cases, ... the handicap is so directly related to the job qualifications that the applicant's proof of his or her physical ability to do the job is tantamount to proof that the handicap would not hinder his or her performance.” Id. at 382,
Grande's job description does not mention lifting in the summary. The list of essential requirements for the job contains "Lift and Carry Tasks,” which list the amount of weight a nurse must be required to lift or carry. There is no mention of frequency and no mention that heavy lifting must be done regularly. The U.S. Department of Labor's Dictionary of Occupational Titles (D.O.T.), to which the KCI Report refers, lists nursing as a "medium” strength demand job, which requires the employee to occasionally lift fifty pounds and frequently lift twenty pounds, A point of disagreement between the parties arises from comparing Grande's actual job description and the D.O.T. standards for nursing (which both indicate that the strength demands are "medium”) with the job standards that Saint Clare’s told KCI to use for the FCE, the validity of which is challenged.
The Third Circuit relied on Interpretive Guidance issued by the Equal Employment Opportunity Commission to clarify the definition of "essential function,” Deane, supra,