Maryanne Grande v. Saint Clare’s Health System (076606) (Morris County and Statewide) ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Maryanne Grande v. Saint Clare’s Health System (A-67-15) (076606)
Argued January 31, 2017 -- Decided July 12, 2017
SOLOMON, J., writing for the Court.
In this action brought under New Jersey’s Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, the
Court determines whether 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.
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 2007, Grande suffered a series of work-related injuries.
Grande sustained her final injury in February 2010. 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.
Grande underwent the examination. The Report recommended maximum loads for Grande to bear,
including that Grande frequently lift no more than sixteen pounds from waist to chest. 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.
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 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 should transfer patient with assistance only.”
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.
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. The trial court granted summary judgment in favor of Saint Clare’s, finding that Grande did
not establish a prima facie case 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 because the record contained several material facts in dispute.
According to the majority, “the motion court incorrectly resolved these materially disputed facts in favor of [Saint
Clare’s] and rejected or minimized the importance of evidence a rational jury could find to support [Grande’s] case
of unlawful discrimination due to her perceived physical disability.” The dissent found no genuine factual disputes.
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.
HELD: On the record before the trial court, issues of material fact exist. The Court affirms and modifies the judgment
of the Appellate Division and remands the matter to the trial court for further proceedings.
1. 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. 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. If direct
evidence 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, 36 L. Ed. 2d 668 (1973). The Court has
modified the McDonnell Douglas framework in evaluating disability discrimination claims. (pp. 16-17)
2. The first step of the modified framework requires that a plaintiff prove by a preponderance of the evidence that:
(1) she is disabled within the meaning of the LAD; (2) she was performing her job at a level that met her employer’s
legitimate expectations; (3) she was discharged; and (4) the employer sought someone else to perform the same
work after she left. If a plaintiff successfully establishes a prima facie case, a presumption arises that the employer
unlawfully discriminated against the plaintiff. 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 v. Food Circus Supermkts., Inc., 110 N.J. 363, 374 (1988). (pp. 17-21)
3. 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 Court holds 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. (pp. 20-24)
4. Because Grande fails to show a hostility toward members of her class, this case must be resolved by applying the
McDonnell Douglas circumstantial evidence framework. Grande relies on Zive v. Stanley Roberts, Inc., where the
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. 436, 455 (2005). Zive did not
involve an employee’s extended periods of absence from work. An issue of fact exists as to whether Grande’s
periods of absence from work preclude her from demonstrating that she was actually performing her job at the time
she was terminated. This factual dispute is material to Grande’s prima facie case. The Court reverses summary
judgment in Saint Clare’s favor and remands for trial on the record as it stands. (pp. 24-30)
5. The Court turns to Saint Clare’s alternate claim that Saint Clare’s is entitled to summary judgment on the basis of
the defenses it asserted under the second McDonnell Douglas step. To prove 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. Saint
Clare’s maintains that it met this burden by relying on the KCI Report. First, there is a dispute as to whether the
lifting standards identified by the KCI Report are actually the standards applicable to Grande’s position. Second,
there is a dispute as to whether the KCI Report conclusively establishes that Grande is unable to perform her job.
These factual disputes are material to the issue of whether Grande’s disability precluded her from performing the
essential functions of her job. 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. The evidence
that Grande presented a risk of injury to herself or patients is inadequate to resolve this material issue. (pp. 30-36)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED
to the trial court for proceedings consistent with this opinion.
JUSTICE LaVECCHIA, CONCURRING, underscores that, 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 and observes that this matter is a missed opportunity to reassess the
convoluted frameworks adopted to evaluate LAD disability discrimination cases. To the extent those frameworks
apply, in Justice LaVecchia’s view, this matter would be better and more directly analyzed as a direct evidence case.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion. JUSTICE LaVECCHIA filed a separate,
CONCURRING opinion.
2
SUPREME COURT OF NEW JERSEY
A-67 September Term 2015
076606
MARYANNE GRANDE, R.N.,
Plaintiff-Respondent,
v.
SAINT CLARE’S HEALTH SYSTEM,
Defendant-Appellant.
Argued January 31, 2017 – Decided July 12, 2017
On appeal from the Superior Court, Appellate
Division.
Sean R. Gallagher (Polsinelli, PC) of the
Colorado bar, admitted pro hac vice, argued
the cause for appellant (McCarter & English,
LLP and Polsinelli, PC, attorneys; Thomas F.
Doherty, Sean R. Gallagher, and Gillian
McKean Bidgood (Polsinelli, PC) of the
Colorado bar, admitted pro hac vice, on the
briefs).
Noel C. Crowley argued the cause for
respondent (Crowley & Crowley, attorneys).
Richard M. Schall argued the cause for
amicus curiae National Employment Lawyers
Association of New Jersey (Schall & Barasch,
LLC and Zuckerman & Fisher, LLC, attorneys;
Richard M. Schall and Elizabeth R. Zuckerman
on the brief).
Benjamin Folkman argued the cause for amicus
curiae New Jersey Association for Justice
(Folkman Law Offices, PC, attorneys;
Benjamin Folkman, Lauren M. Law, Eve R.
Keller, Sarah A. M. Slachetka, Paul C.
Jensen, Jr., on the brief).
1
JUSTICE SOLOMON 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, and general
2
patient care, including assisting patients with daily living
activities such as washing, bathing, dressing, walking,
repositioning patients in bed, and guarding ambulant patients
against falls. Thirty to forty percent of the patients in
Grande’s unit wore armbands and had signage placed outside their
hospital rooms to alert staff that they were at an increased
risk of falling.
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 “[e]ssential
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.1
1 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,
3
Beginning in 2007, prior to the Job Analysis, Grande
suffered a series of work-related injuries. The first occurred
in March 2007, when she injured her left shoulder while
repositioning a patient in bed. Grande was unable to continue
working that day, immediately saw a doctor, and reported the
incident to Saint Clare’s. She had surgery on her shoulder in
April, followed by physical therapy. Grande spent about three
months recovering at home before returning to work on a full-
time but “light duty” basis, which included chart
administration, compliance review, and similar administrative
tasks. Less than a month later, Grande returned to full duty,
including patient care.
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.
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.
4
In November 2008, Grande re-injured her left shoulder while
lifting the legs of a 300-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
5
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.).2 The Report
specified that Grande’s job demanded that she perform tasks
involving pushing, pulling, and lifting from waist to chest
frequently (34-66% of the time), but that she was able to
perform these functions only occasionally (1-33% of the time).
Accordingly, the Report recommended maximum loads for Grande to
2 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. Just. 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.
6
bear, including that Grande frequently lift no more than sixteen
pounds from waist to chest.
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
7
changes. She demonstrate[d] 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.3 In an
addendum, KCI responded that Grande “demonstrates ability for
Medium category work (occasional lift and work up to 50 lbs.)
with noted job movement demand changes” and reiterated that
Grande could return to work with certain accommodations.
Nonetheless, the addendum concluded with the following
disclaimer: “Please note that determination for final return to
work abilities for [Grande] is deferred to her treating
physician, in this case, Joel H. Spielman, M.D.”
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
3 Briglio’s e-mail is not in the record before this Court, but
KCI’s response quotes from her e-mail.
8
advised that [Grande] should have permanent restrictions of
lifting up to 50 lbs occasionally and that she should transfer
patient with assistance only.”
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.4
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.
B.
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
4 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.
9
her disability, and the second count alleged unlawful
discrimination based on a perceived disability.5
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
5 Earlier versions of the LAD used the word “handicap” rather
than “disability.” See Victor v. State, 203 N.J. 383, 398 n.3
(2010). We use the term “disability,” except where language is
quoted from an opinion or statute.
10
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 trial court granted summary judgment in favor of Saint
Clare’s, finding that Grande did not establish a prima facie
case 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 favor of
[Saint Clare’s] and rejected or minimized the importance of
evidence a rational jury could find to support [Grande’s] case
of unlawful discrimination due to her perceived physical
disability.” The majority explained:
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
11
medical opinion with the opinion of another
physician. Instead, defendant relies on the
results of a “functional capacity evaluation
[FCE] 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 plaintiff’s 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.
12
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.A.C.
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
13
improper reliance on a deficient medical report in Jansen v.
Food Circus Supermkts., Inc., 110 N.J. 363 (1988), Saint Clare’s
decision was based on objective evidence -- the functional
capacity evaluation -- as well as Grande’s own undisputed
history of injuries on the job.
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.
14
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 (1999)).
NELA-NJ also cautions that Saint Clare’s should not be given
“carte blanche” to decide what the essential functions of a
particular job are, as this would allow an employer to “invent
unrealistic job requirements for the sole purpose of eliminating
disabled people from consideration.” It urges that the proper
approach is to allow a fact-finder to weigh the employer’s
statements, the written job description, the work experience of
current and former employees, and other factors, such as the
D.O.T. standards, to determine whether the employer’s criteria
are realistic or designed to discriminate against a disabled
person.
III.
15
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 “‘attempt[s] to prove employment discrimination by . .
. direct or circumstantial evidence.’” Smith v. Millville
Rescue Squad, 225 N.J. 373, 394 (2016) (quoting Sisler, supra,157 N.J. at 208). Plaintiffs are permitted to prove their claim
using either or both methods. Sisler, supra, 157 N.J. at 208.
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 (quoting A.D.P. v. ExxonMobil
Research & Eng’g Co., 428 N.J. Super. 518, 533 (App. Div.
2012)). “The evidence produced must, if true, demonstrate not
only a hostility toward members of the employee’s class, but
also a direct causal connection between that hostility and the
challenged employment decision.” Sisler, supra, 157 N.J. at 208
(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.
16
Ct. 1775, 1804, 104 L. Ed. 2d 268, 305 (1989) (O’Connor, J.,
concurring)).
“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 (quoting Fleming v. Corr.
Healthcare Sols., 164 N.J. 90, 100 (2000)).
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, 36 L. Ed. 2d 668 (1973). Andersen v.
Exxon Co., U.S.A., 89 N.J. 483, 492-93 (1982). Nevertheless,
this Court has modified the McDonnell Douglas framework in
evaluating disability discrimination claims. See id. at 498(noting that, in “physical handicap” cases, “it will not be
necessary to go through all of the strict steps of the McDonnell
Douglas formula”).
1.
The first step of our modified framework requires that a
plaintiff establish a prima facie case. Jansen, supra, 110 N.J.
17at 382. When a plaintiff alleges she was fired discriminatorily
based on a disability, she must prove by a preponderance of the
evidence that: (1) she is disabled within the meaning of the
LAD; (2) she “was performing [her] job at a level that met [her]
employer’s legitimate expectations”; (3) she was discharged; and
(4) the employer sought someone else to perform the same work
after she left. Ibid. (quoting Clowes v. Terminix Int’l, Inc.,
109 N.J. 575, 597 (1988)).
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 (2010); Rogers v. Campbell Foundry, Co., 185 N.J.
Super. 109, 112-13 (App. Div.), certif. denied, 91 N.J. 529(1982).
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 (2002). Thus, deficiencies in an
employee’s performance are reserved for consideration at later
stages in the analysis. Ibid. For the second prong, “[a]ll
that is necessary is that the plaintiff produce evidence showing
that she was actually performing the job prior to termination.”
Zive v. Stanley Roberts, Inc., 182 N.J. 436, 454 (2005).
18
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 (emphasis omitted)
(quoting Erickson v. Marsh & McLennan Co., 117 N.J. 539, 553
(1990)).
2.
If a plaintiff successfully establishes a prima facie case,
“a presumption arises that the employer unlawfully discriminated
against the plaintiff.” Clowes, supra, 109 N.J. at 596. The
analysis then proceeds to the second step of the test, where
“the employer’s burden varies depending on whether the employer
seeks to establish the reasonableness of the otherwise
discriminatory act or advances a non-discriminatory reason for
the employee’s discharge.” Jansen, supra, 110 N.J. at 382.
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 (quoting Andersen, supra, 89
N.J. at 493). As with the traditional McDonnell Douglas
framework, the burden of proving that the employer intentionally
19
discriminated remains at all times with the employee. Id. at
383.
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; see N.J.A.C. 13:13-2.8(a)(3); see also N.J.S.A. 10:5-29.1
(stating that “[u]nless 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 an otherwise
qualified person with a disability the opportunity to . . .
maintain employment”). To carry its burden, the employer must
prove “it . . . reasonably arrived at its opinion that the
[employee] is unqualified for the job.” Andersen, supra, 89
N.J. at 496. The employer must produce evidence that its
decision was based on “an objective standard supported by
factual evidence” and not on general assumptions about the
employee’s disability. N.J.A.C. 13:13-2.8(a)(3).
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.”
20
N.J.A.C. 13:13-2.8(a)(2); Jansen, supra, 110 N.J. at 374. “When
asserting [that] 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.”
Jansen, supra, 110 N.J. at 383. Importantly, “[a]n employer may
not base a decision to discharge an employee for safety reasons
on subjective evaluations or conclusory medical reports.”
Greenwood v. State Police Training Ctr., 127 N.J. 500, 511
(1992).
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 (noting that reasonable accommodation arises as issue in
disability discrimination cases in two instances: where
plaintiff affirmatively pleads failure to accommodate and where
employer defends on grounds that employee was terminated due to
inability to perform job).
21
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 plaintiff’s 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. 59, 74-81 (App. Div. 1999) (discussing
whether reasonable accommodation would have allowed chronically
absent employee to perform essential job requirements). That
approach is consistent with the evaluation of discriminatory
discharge claims under the Americans with Disabilities Act
(ADA), 42 U.S.C.A. §§ 12101 to 12213. See, e.g., Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999)
(plaintiff alleging discriminatory discharge under ADA must
establish, as second prong of prima facie case, that she “is
otherwise qualified to perform the essential functions of the
job, with or without reasonable accommodations by the employer”
(quoting Gaul v. Lucent Techs., 134 F.3d 576, 580 (3d Cir.
1998))).
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
22
(1990). Moreover, our courts have evaluated an employer’s
obligation to reasonably accommodate an employee’s disability
under the LAD in accordance with the ADA. Royster v. N.J. State
Police, 227 N.J. 482, 499 (2017).
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 plaintiff’s reasonable-
accommodation showing by providing evidence that the proposed
accommodation is unreasonable. See N.J.A.C. 13:13-2.5(b); -
2.5(b)(3)(i) to (iv).6 As we recognized in Andersen, supra,6 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
(2007). This Court held that “an employee must possess the bona
fide occupational qualifications for the job position that
employee seeks to occupy in order to trigger an employer’s
obligation to reasonably accommodate the employee.” Id. at 327.
The Court also held that “the LAD does not require that an
employer create an indefinite light duty position for a
permanently disabled employee if the employee’s disability,
absent a reasonable accommodation, renders him otherwise
unqualified for a full-time, full-duty position.” Id. at 340.
23
where “the job qualifications [are] virtually a mirror
reflection of the physical boundaries of the [employee’s]
handicap,” proof by the employee that she could perform the job
with or without a reasonable accommodation is “tantamount to
proving” that the disability does not hinder the employee’s job
performance. 89 N.J. at 499 n.5.
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
We conclude that Raspa stands for the proposition that an
employer is not required to accommodate a disabled employee by
creating a permanent, light-duty position. In a wrongful
discharge case, an employee may nonetheless show in her prima
facie case that an accommodation other than the creation of a
new, light-duty position would allow her to perform her job to
her employer’s legitimate expectations.
24
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 KCI
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 (finding
direct evidence of discrimination when employer’s policy applied
only to employees identified as alcoholics and employee’s
discharge, based on noncompliance with policy, was unrelated to
job performance).
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 (finding direct evidence of marital status
discrimination when employer stated that employee would not have
been fired if he had reconciled with his wife). However, the
LAD provides that an employer may lawfully terminate a disabled
employee if the disability precludes job performance. N.J.S.A.
10:5-4.1. Therefore, more than Saint Clare’s admission is
needed to establish direct evidence of discrimination here;
25
evidence of animus or hostility toward the disabled must also be
produced. Because Grande fails to show a “hostility toward
members of [her] class,” Sisler, supra, 157 N.J. at 208, we
agree with the Appellate Division that this case must be
resolved by applying the McDonnell Douglas circumstantial
evidence framework.
V.
Having concluded that this is a circumstantial evidence
case, 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 (2014) (citing Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). An
issue of material fact is “genuine only if, considering the
burden of persuasion at trial, the evidence submitted by the
parties on the motion, together with all legitimate inferences
therefrom favoring the non-moving party, would require
26
submission of the issue to the trier of fact.” Ibid. (quoting
R. 4:46-2(c)).
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 performing 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 (stating that employer is not required to accommodate
27
“chronic and excessive absenteeism”). Although Grande worked
for Saint Clare’s for ten years and was never warned that her
job was at risk, she was absent for over twelve months due to
her injuries, worked about two months on light-duty assignments,
and was on light duty, concededly at the hospital’s request, at
the time she was fired.
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. Grande further claims that, at the time of her
termination, she was able to resume full-time, full-duty work,
and her periods of absence, in light of her ten-year history
with the hospital, did not keep her from satisfying her prima
facie case.
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. When the
employee wished to return to work at the company, he was told
that his services would no longer be required. Id. at 443. The
employer defended its decision to terminate the employee by
28
claiming that he failed to meet an unusually high sales goal.
Id. at 450-51. This Court was not persuaded, reasoning that the
employee had extensive experience in his field, had worked for
his employer for eight years, had been actively engaged in
management and administration, and had never been told that his
job was at stake. Id. at 456. Importantly, Zive did not
address the employer’s obligation to consider reasonable
accommodations prior to terminating a disabled employee, as
required by the LAD regulations. See N.J.A.C. 13:13-2.5(b)(2).
Zive, thus, did not involve an employee’s extended periods of
absence from work and did not address the required reasonable-
accommodation consideration.
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, to
preclude her from demonstrating that she was actually performing
her job at the time she was terminated. While this factual
dispute is material to Grande’s prima facie case, we express no
opinion on the issue.
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
29
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 case, 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,30
89 N.J. at 499-500. That is, Saint Clare’s must demonstrate
that its opinion is “based upon an objective standard supported
by factual evidence”; general assumptions about Grande’s
disability are insufficient. N.J.A.C. 13:13-2.8(a)(1).
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. In Andersen, an applicant sought a position as a
truck driver and underwent a “preplacement physical
examination.” Id. at 489. The applicant disclosed to the
examining doctor that he had had back surgery thirteen years
prior. Ibid. The doctor performed a cursory physical
evaluation and asked the applicant only to “raise his hands and
bend over and touch his toes.” Ibid. The doctor then concluded
that the applicant was unfit for the job because “people with
back problems would not be hired.” Ibid. This Court held that
such a deficient medical report was an insufficient basis on
which the employer could reasonably arrive at its opinion that
the applicant’s disability precluded job performance. Id. at
500.
While we acknowledge that the KCI Report here is more than
a cursory evaluation, we find it presents material issues of
fact that could not be resolved on the record before the trial
court. First, there is a dispute as to whether the lifting
31
standards identified by the KCI Report as Saint Clare’s
requirements are actually the standards applicable to Grande’s
position. Saint Clare’s 2008 Job Analysis indicates that R.N.s
are required, as essential functions of their job, to lift fifty
pounds from waist to chest frequently (34% to 66% of the day)
and several other loads occasionally (1% to 33% of the day),
including twenty-five pounds from floor to waist, ten pounds
from chest to overhead, twenty pounds in a two-hand carry, and
ten pounds in a one-hand carry. The Job Analysis does not
identify any activity that is performed at a frequency greater
than 66% of the day.
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.
32
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.7 The hospital claims that
Dr. Spielman recommended permanent lifting restrictions; Grande
alleges Dr. Spielman told her she could resume her regular
duties; and the KCI Report does not indicate whether its
recommendations were permanent or temporary.
7 Because the August 2010 return-to-work 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.
33
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. The New Jersey Administrative Code
explains the employer’s burden as follows:
Refusal to select a person with a disability
may be lawful where it can be demonstrated
that 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).]
34
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 KCI 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. We
conclude, therefore, that the evidence that Grande presented a
35
risk of injury to herself or patients is inadequate to resolve
conclusively this material issue.
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.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion. JUSTICE LaVECCHIA filed a separate, CONCURRING
opinion.
36
SUPREME COURT OF NEW JERSEY
A-67 September Term 2015
076606
MARYANNE GRANDE, R.N.,
Plaintiff-Respondent,
v.
SAINT CLARE’S HEALTH SYSTEM,
Defendant-Appellant.
JUSTICE LaVECCHIA 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, I write separately to address two matters.
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 plaintiff’s 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,
1
plaintiff’s 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 (1988) -- our preeminent decision on the
subject of disability discrimination -- provides the starting
point for analysis in this matter. In effectuating our LAD’s
charge regarding disability discrimination, this Court in
Jansen, supra, initially turned to the McDonnell Douglas1 test,
as it had for other claims involving allegations of
“discrimination in hiring because of race, creed, color,
national origin, ancestry, age, marital status, or sex.” 110
N.J. at 380. After reciting the McDonnell Douglas framework,
the Jansen Court observed that in the disability discrimination
context, the employer often admits that it subjected an employee
to disparate treatment because of a disability, “but claims that
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973).
2
[the treatment] was justified.” Id. at 381 (quoting Andersen v.
Exxon Co., 89 N.J. 483, 498 (1982)).
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)).2
Accordingly, the Court placed that burden on the employer
because it recognized that the employer “is in a better position
to prove that it reasonably arrived at the conclusion that the
handicap precluded employment.” Ibid. That burden-of-proof
obligation was viewed as consistent with the statutory direction
in N.J.S.A. 10:5-4.1 and the LAD’s implementing regulation,
N.J.A.C. 13:13-2.8.
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. To balance those interests in
Jansen -- a case involving an employee with epilepsy -- the
2 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).
3
Court stated that “[t]he appropriate test is not whether the
employee suffers from epilepsy or whether he or she may
experience a seizure on the job, but whether the continued
employment of the employee in his or her present position poses
a reasonable probability of substantial harm.” Id. at 374-75.
The Court determined that the trial and appellate courts had
erred by equating the future probability of a seizure on the job
with the future probability of injury, when Jansen’s employer
had made no showing that Jansen’s seizures posed a risk of
injury to himself or others. Id. at 377 (“The assumption that
every epileptic who suffers a seizure is a danger . . . reflects
the prejudice that the [LAD] seeks to prevent.”). The Court
explained that the employer had not “reasonably arrived at” its
decision to fire Jansen because the employer relied on a
deficient medical report, which did not distinguish between the
probability of future seizures and actual risk of harm, and did
not consider Jansen’s work history or his own doctors’ reports.
Id. at 379-80.
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
4
382 (alteration in original) (quoting Clowes v. Terminix Int’l,
Inc., 109 N.J. 575, 597 (1988)). However, the Jansen Court did
not dwell on whether Jansen had presented a prima facie case
because the issue in dispute focused on the affirmative safety
defense advanced by Jansen’s employer.3 The Court held that
where an employer defends its disparate treatment of a disabled
employee by raising a safety defense, the employer bears the
burden of proof to show that its conclusion that the employee
could not perform the job was a reasonable one. Id. at 383.
Zive v. Stanley Roberts, Inc., 182 N.J. 436, 451-56 (2005),
focused on the second prong of McDonnell Douglas and assessed
the quantum of proof required to be produced by a plaintiff when
presenting a prima facie case of disability discrimination. In
Zive, we expressly kept the plaintiff’s burden as to the second
prong “slight” when a plaintiff had been performing the job
prior to being terminated based on perceived disability. 182
3 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. However, the Court also noted that
the employer is in the best position to put forward facts
relating to the qualifications for a position with respect to a
safety defense, id. at 381, suggesting that, should the nexus
between a disability and job qualifications be in dispute, the
employer would bear the burden of persuading the factfinder of
the necessity of imposing those qualifications.
5
N.J. at 455. We instructed courts not to consider the
employer’s evidence disputing job performance related to the
essentials of one’s job in the context of the plaintiff’s
pretrial prima facie case. Ibid.
The majority recognizes that there are disputed facts about
plaintiff’s 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 standards
governing plaintiff’s 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.
In my view, issues of reasonable accommodation or
absenteeism due to disability have no business being compressed
into plaintiff’s pretrial prima facie case. Because plaintiff
did not plead a failure to accommodate claim, reasonable
accommodation was not at issue as part of plaintiff’s pretrial
case. As for absenteeism, Saint Clare’s did not rely on
plaintiff’s absences as a reason for terminating her employment.
Courts faced with disability discrimination claims should remain
focused pretrial on the key question of whether there are
6
triable issues of fact on which a jury could base a finding that
an employer has unlawfully discriminated against an employee.
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 plaintiff’s job as a registered nurse
7
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 [plaintiff’s] 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.
10:5-29.1 requires that “[u]nless it can be clearly shown that a
person’s disability would prevent [her] from performing a
8
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.
In other words, whether plaintiff’s termination was
“justified by lawful considerations” remains to be decided at
trial. There has been no concession here by plaintiff that she
cannot do the job. There is a dispute over the “essential
functions” of the job.4 There is a factual dispute over whether
the KCI Report contains sufficient proof that plaintiff cannot
perform essential lifting duties of the job, even assuming the
asserted essential lifting requirements are legitimate. And,
the factual questions about the disputed standards are
4 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.
9
complicated by the apparent lack of historical evidence that
this employer subjected its nursing force to strength testing
either at the time of hiring or as a condition of continued
employment. The standards, which plaintiff claims are newly
asserted, are being applied to her after she is returning to
work from a workers’ compensation leave. Finally, the employer
may still prove 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 plaintiff’s 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 plaintiff’s 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.
10
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 have looked to federal discrimination law
for guidance interpreting our own analogous statutes. Ante at
__ (slip op. at 22) (quoting Grigoletti v. Ortho Pharm. Corp.,
118 N.J. 89, 97 (1990)). The Court of Appeals for the Eighth
Circuit has summarized the traditional difference between direct
and indirect approaches to proving claims under the Americans
11
with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213, as
follows:
“[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 direct/indirect
paradigm, and that have suggested a more straightforward
analysis of whether a reasonable jury could infer prohibited
discrimination.” Hitchcock v. Angel Corps, Inc., 718 F.3d 733,
737 (7th Cir. 2013) (quoting Coleman v. Donahoe, 667 F.3d 835,
863 (7th Cir. 2012) (Wood, J., concurring)); see also Good v.
12
Univ. of Chi. Med. Ctr., 673 F.3d 670, 680 (7th Cir. 2012)
(“[D]irect and indirect methods for proving and analyzing
employment discrimination cases . . . have become too complex,
too rigid, and too far removed from the statutory question of
discriminatory causation.”).
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 plaintiff’s claim. Those issues include, but
are not limited to: (1) the nature and extent of the
plaintiff’s 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
13
shoehorned all of them into the McDonnell Douglas framework,
even in cases 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., 798 F.3d
1260, 1266 n.6 (10th Cir. 2015), the court stated that the
McDonnell Douglas framework was inapplicable because the
defendant “indisputably rescinded [the plaintiff’s] job offer
because of her disability.” The court relied on a prior holding
that “[i]f the employer admits that the disability played a
prominent part in the decision, or the plaintiff has other
direct evidence of discrimination based on disability, the
burden-shifting framework may be unnecessary and inappropriate.”
Osborne, supra, 798 F.3d at 1266 n.6 (quoting Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 n.3 (10th Cir. 1997)); see also TWA v.
Thurston, 469 U.S. 111, 121-22, 105 S. Ct. 613, 621-22, 83 L.
Ed. 2d 523, 533 (1985) (observing in federal age discrimination
context that “the McDonnell Douglas test is inapplicable where
the plaintiff presents direct evidence of discrimination”).
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
14
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 (2010) (explaining that
“special rules of interpretation . . . apply” to LAD).
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 Jansen 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 case. By focusing the parties directly on the
area of dispute and the obligation of the employer to bring the
15
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. In the former setting, where no
assertion of pretext is involved, the Court clearly kept the
burden of persuasion on the employer to justify its reason for
concluding that the employee could not reasonably do the job:
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.]
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
16
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 (noting
“[t]he LAD prevents only unlawful discrimination against
disabled individuals”). As discussed above, disability
discrimination claims may involve burden-shifting related to the
employer’s justification for terminating an employee or its
obligation to make a reasonable accommodation; however, the
shifting of burdens on those issues should not be confused with
McDonnell Douglas burden-shifting as part of a plaintiff’s
initial showing of disparate treatment.
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 perceived
disability, and the employer should bear the burden of proof to
justify its action.
17
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 (1999). Explaining the
different methods of proof available, we observed in Sisler that
to qualify as direct evidence, “[t]he evidence produced must, if
true, demonstrate not only a hostility toward members of the
employee’s class, but also a direct causal connection between
that hostility and the challenged employment decision.” Id. at
208 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109
S. Ct. 1775, 1804, 104 L. Ed. 2d 268, 305 (1989) (O’Connor, J.,
concurring)). To read the remark in Sisler -- which was not
necessary to the holding in that case -- to mean that a showing
of “hostility” toward an entire protected group is essential to
18
every direct evidence claim creates an untenable requirement in
order to establish unlawful discrimination by direct evidence.
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, are 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, 104 L. Ed. 2d at 305 (O’Connor, J., concurring).
The comment by Justice O’Connor was critical to her position in
the “mixed-motive” context of Price Waterhouse. In a mixed-
motive case, because an alternative, non-discriminatory motive
is in play, a plaintiff alleging disparate treatment “must show
by direct evidence that an illegitimate criterion was a
substantial factor in the [adverse] decision” in order to shift
the burden of production to the employer. Id. at 276, 109 S.
Ct. at 1804, 104 L. Ed. 2d at 304. Sisler cannot reasonably be
understood as asserting that a hostility showing toward a class
of protected individuals is necessary to all direct evidence
employment discrimination claims.
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
19
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 (“We do not suggest that the employer . . . is evil or even
inconsiderate. The essence of discrimination . . . is the
formulation of opinions about others not on their individual
merits, but on their membership in a class with assumed
characteristics.”). The LAD is animated by the public policy
that individuals with disabilities must be afforded every
reasonable opportunity to fully participate in society. See
N.J.S.A. 10:5-4.1. It is an employer’s burden to show that
essential functions of a job cannot be performed by a disabled
employee. See N.J.S.A. 10:5-29.1; N.J.A.C. 13:13-2.8.
To recognize that plaintiff’s 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
20
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 plaintiff’s] job.” Id. at 148.5
5 The Third Circuit relied on Interpretive Guidance issued by
the Equal Employment Opportunity Commission to clarify the
definition of “essential function.” Deane, supra, 142 F.3d at
148. The guidance states that although “inquiry into the
essential functions is not intended to second guess an
employer’s business judgment with regard to production
standards,” the question of whether a given function is
essential “is a factual determination that must be made on a
21
To conclude, I agree that summary judgment was improperly
granted to Saint Clare’s. I concur in the majority’s
determination that this matter should be remanded for trial
because there are numerous factual disputes to be resolved by
the jury.
case by case basis [and] all relevant evidence should be
considered.” 29 C.F.R. pt. 1630, app. § 1630.2(n).
22