SANDRA ROOPCHAND VS. COMPLETE CARE(L-3654-14, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3223-15T4
SANDRA ROOPCHAND,
Plaintiff-Appellant,
v.
COMPLETE CARE, n/k/a FASTCARE,
ROBERT J. FALLON, D.C., and
RICHARD J. SCHALLER, M.D.,
Defendants-Respondents.
_____________________________
Argued May 16, 2017 — Decided August 3, 2017
Before Judges Reisner, Koblitz and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-3654-
14.
Edward F. Szep argued the cause for appellant
(Law Offices of Emanuel S. Fish, attorneys;
Mr. Szep and Emmanuel S. Fish, on the briefs).
Joshua L. Weiner argued the cause for
respondents Complete Care and FastCare (Budd
Larner, P.C., attorneys; Mr. Weiner, of
counsel and on the brief).
James P. Nolan and Associates, attorneys for
respondents Robert J. Fallon and Richard J.
Schaller, join in the brief of respondents
Complete Care and FastCare.
PER CURIAM
Plaintiff Sandra Roopchand, a medical technician, appeals
from the grant of summary judgment to defendants Complete Care
(later known as FastCare) and its former owners, Dr. Richard J.
Schaller, M.D. and Dr. Robert Fallon, D.C. Plaintiff sued the
doctors alleging a pregnancy discrimination claim under the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12(s). She
was terminated, ostensibly for insubordination, after refusing
three times to wash windows on the second floor of the clinic.
After reviewing the allegations in the light most favorable to
plaintiff, we reverse.
Plaintiff worked at the medical office for urgent care,
primary care, rehabilitation, and chiropractic care, from January
2013 until her termination in July 2014. At the time plaintiff
was hired, Complete Care was owned by doctors Schaller and Fallon,
brothers-in-laws, who had formed the business in 1997. The doctors
also owned the building that housed Complete Care.
In January 2014, they sold their practice in preparation for
retirement. The practice was renamed FastCare, and renovations
were undertaken to expand the primary-care practice by converting
the second floor, which had previously been used for billing, into
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an area for patient care. The new owner also decided to reduce
the staff by firing the registered nurses (RNs).
Dr. Schaller and Dr. Fallon retained ownership of the building
and remained operations managers for the practice. Although Dr.
Fallon noted that an office manager was on site to handle hiring
people, Dr. Schaller stated that he and Dr. Fallon remained in
charge of staffing, including hiring and firing.
Plaintiff's duties included both patient care and
administrative duties. Plaintiff described her duties as
including:
patient care, collecting copays, checking
patients in, collecting any balances due,
updating demographic information. . . .
triaging patients . . . [t]aking their chief
complaints, doing vitals, completing any blood
work ordered, EKGs ordered, preparing
specimens to be sent out to the lab, glucose
testing.
Plaintiff also restocked and cleaned the exam rooms. Part of
cleaning the exam rooms included cleaning up vomit, feces, or
blood from the rooms or the patients' bathroom. Her normal duties
did not include cleaning windows. At the time she was hired,
plaintiff worked part-time and was paid $13.50 per hour. By July
2014, plaintiff was paid $15 an hour and worked between thirty-
six and thirty-nine hours a week. Plaintiff worked a set schedule
of twelve-hour shifts on Monday through Wednesday, with Thursdays
and Fridays off.
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During her employment, plaintiff was never disciplined. Dr.
Fallon stated that he did not have issues with plaintiff's job
performance prior to the day she was terminated. Dr. Schaller
agreed she was a good worker. Through most of her employment,
plaintiff worked primarily with Dr. Schaller, although she would
occasionally do administrative tasks for Dr. Fallon if he asked,
such as "pull[ing] up patient's records" or "checking in patients."
After the RNs were fired, plaintiff was asked to take on
additional responsibilities such as "calling in prescriptions,
taking care of refills, receiving blood work results, [and] calling
patients with results." She was also asked to serve as the medical
technician for the second-floor expansion, working for Dr. Henry,
the new primary care physician.
We review the following facts, some of which are disputed,
in a light most favorable to plaintiff. R. 4:46-2(c). Plaintiff
learned she was pregnant in the beginning of July 2014. Plaintiff,
who had been diagnosed with hypothyroidism in 2005, knew that the
pregnancy was high-risk because of her condition. The pregnancy
was confirmed by her doctor, a high-risk specialist.
On Thursday, July 24, 2014, plaintiff told Dr. Schaller she
was pregnant. During their first conversation about her pregnancy,
plaintiff told Dr. Schaller that she "was spotting and . . . had
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to go to the doctor." Dr. Schaller congratulated plaintiff on her
pregnancy and permitted her to go to the doctor's appointment.
When she returned to work after the doctor's visit, plaintiff
told Dr. Schaller that she had a high-risk pregnancy and had to
see her obstetrician weekly. By Monday, July 28, defendants had
created a schedule for August 2014 in which plaintiff's hours were
reduced to part-time. That week the second-floor expansion opened
and plaintiff was assigned to be the medical technician for that
floor.
On the morning of Tuesday, July 29, 2014, plaintiff informed
Dr. Fallon when she arrived at work that she was pregnant. Dr.
Fallon told her that he had already found out that morning, and
congratulated her. Plaintiff did not tell Dr. Fallon at the time
that her pregnancy was high-risk, but she assumed Dr. Schaller had
passed along this information.
That same morning, plaintiff overheard a conversation between
Drs. Fallon and Schaller that she initially did not consider
important. She heard Dr. Schaller say to Dr. Fallon, "I don't
care, she's a liability." She said she did not hear anything else
but noted they started "talking lower at that point." She did not
know at the time who they were talking about, but later inferred
that they were talking about her.
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The office was crowded with many patients that day. Because
plaintiff was working upstairs in the newly-renovated part of the
office, she was required to go up and down between the first and
second floor. Dr. Fallon was on the second floor on a stepladder
changing ballasts and water-stained ceiling tiles to ready the
space for patients. A rehab technician who often worked with Dr.
Fallon was cleaning the elevator.
Dr. Fallon stated in his deposition that although FastCare
employed a cleaning service who came four nights a week, he had
suspended the cleaning crew services to the second-floor because
of the ongoing construction.
While plaintiff was busy working with a new patient who needed
bloodwork and X-rays, Dr. Fallon came up to her and asked her to
wash the windows on the second floor. She told him, "I don't do
windows." When asked why she said that, plaintiff responded:
A. I honestly thought he was playing around.
I didn't think he was serious.
Q. Why did you think he was playing around?
A. Because it's not part of my job
description, number one. Number two, it's not
something that anyone has ever asked me to do
before nor have I seen anyone working there
do before. So I really thought he was playing.
We didn't have any type of disagreement early
that morning. You know, we weren't, like, had
any tension between each other or anything
like that. So, you know, there were times
where we did joke and play around. I said
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that and I kept moving. I went back
downstairs.
Plaintiff also thought Dr. Fallon was "kidding" because he
knew she was pregnant and "he knew [she] was high risk and [she]
would have to get on a ladder." Plaintiff, who is 5'1", would
need a ladder to clean the floor to ceiling windows.1
About ten minutes later, Dr. Fallon again asked plaintiff to
wash the windows. Dr. Fallon had called the rehab tech over to
listen to the conversation. Plaintiff again responded, "I don’t
wash windows, you know." Dr. Fallon responded, "you will if I
order you to." In addition to the rehab tech, four other employees
were upstairs and heard the exchange.
Plaintiff then "looked at . . . all of them because they were
looking at [her] and [she] said, did ya'll ever clean, did he ever
ask ya'll to clean windows and they [were] like no." When she
came back upstairs a third time, Dr. Fallon told her "I'm going
to ask you one last time, are you going to wash those windows or
not." Plaintiff replied no, that she could call somebody to do
it for him, but she was not washing the windows. Plaintiff offered
to decorate the bathroom, which she stated was already "clean."
She was embarrassed by the confrontation in front of her co-workers
and believed he was "picking on [her]." Plaintiff never raised
1
Defendants dispute that a ladder would have been required for
plaintiff to clean the windows.
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her voice nor used inappropriate language in speaking to Dr.
Fallon.
Dr. Fallon fired her for insubordination and told her to "get
out." Dr. Fallon acknowledged that he did not warn plaintiff that
if she did not wash the windows he was going to fire her. After
Dr. Fallon fired her, plaintiff went downstairs and spoke with Dr.
Schaller, who told her to go home and he would call her later.
Plaintiff texted Dr. Schaller the following day; he responded that
her termination was final.
Prior to this incident, plaintiff had never before been asked
to clean windows, nor was she aware of any other employee who was
asked to clean windows. Both parties agree that defendants did
not have a written policy as to what constituted insubordination.
According to plaintiff, a non-pregnant former employee named
Lillian, who frequently argued forcefully with Dr. Fallon,
including telling him to "shut up," was not fired for
insubordination.
After she was fired, plaintiff successfully appealed the
denial of unemployment benefits. Although in no way binding on
this court, it is interesting to note that the Appeal Tribunal
found after a telephonic hearing: "Had the doctor informed the
claimant that her refusal to comply with the directive would result
in her termination she would have informed him she was refusing
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because of her high risk pregnancy." The Tribunal determined: "No
disqualification arises under N.J.S.A. 43:21-5(b) as the claimant
was not discharged for misconduct connected with the work."
In his decision, the motion judge stated defendants offered
the "legitimate, non-discriminatory reason . . . [of]
insubordination" for her termination and plaintiff could offer "no
support" that defendants' claim was a "pretext for the
termination." The judge found that plaintiff's assumption that
one doctor told the other doctor that her pregnancy was high-risk
or that she could not wash the windows due to alleged high-risk
pregnancy was an assumption without any supporting facts. The
judge also mistakenly stated that "there is no evidence whatsoever
that Dr. Fallon even knew of [plaintiff's] pregnancy prior to
terminating her employment."
The judge also found that although the LAD requires that both
the employee and employer participate in a reasonable
accommodation process, the plaintiff had never asked for an
accommodation, so this issue was moot. The judge stated that
although plaintiff alleged that her pregnancy was high-risk due
to hypothyroidism, "she did not have any work restriction due to
her pregnancy, and at no time told [the defendants] that she had
any work restrictions."
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Summary judgment must be granted "if the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact challenged and the movant is entitled
to a judgment or order as a matter of law." R. 4:46-2(c). Our
"review of the trial court's grant of summary judgment is de novo,
employing the same standard used by the trial court." Tarabokia
v. Structure Tone, 429 N.J. Super. 103, 106 (App. Div. 2012),
certif. denied, 213 N.J. 534 (2013). We must "view the facts in
the light most favorable to the non-moving party." Estate of
Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).
Effective January 17, 2014, the Legislature modified the LAD
to incorporate "pregnancy" as a protected characteristic.
N.J.S.A. 10:5-12(s); N.J.S.A. 10:5-3.1(b), the Pregnant Workers
Fairness Act (PWFA). The Legislature also required employers to
make reasonable accommodation to a pregnant employee and noted its
intention:
to combat this form of discrimination by
requiring employers to provide reasonable
accommodations to pregnant women and those who
suffer medical conditions related to pregnancy
and childbirth, such as bathroom breaks,
breaks for increased water intake, periodic
rest, assistance with manual labor, job
restructuring or modified work schedules, and
temporary transfers to less strenuous or
hazardous work.
[N.J.S.A. 10:5-3.1(b) (emphasis added).]
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The amendment to the LAD makes it unlawful "[f]or an employer
to treat, for employment-related purposes, a woman employee that
the employer knows, or should know, is affected by pregnancy in a
manner less favorable than the treatment of other persons not
affected by pregnancy but similar in their ability or inability
to work." N.J.S.A. 10:5-12(s).2 N.J.S.A. 10:5-12(s) also requires
an employer to:
make available to the employee reasonable
accommodation in the workplace . . . for needs
related to the pregnancy when the employee,
based on the advice of her physician, requests
the accommodation, unless the employer can
demonstrate that providing the accommodation
would be an undue hardship on the business
operations of the employer.
When analyzing a claim under the LAD that addresses the
employer's intention, "New Jersey has adopted the procedural
burden-shifting methodology articulated in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)."
Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005).
Under this methodology, a plaintiff must first present a
prima facie case of discrimination and may use circumstantial
2
Prior to enactment of this law, the LAD was interpreted to
prohibit discrimination against pregnant employees as gender
discrimination. See Rendine v. Panter, 141 N.J. 292, 298 (1995);
Farley v. Ocean Twp. Bd. of Educ., 174 N.J. Super. 449, 452 (App.
Div.), certif. denied, 85 N.J. 140 (1980); Gilchrist v. Bd. of
Educ., 155 N.J. Super. 358, 368 (App. Div. 1978).
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evidence. Ibid. "The evidentiary burden at the prima facie stage
is 'rather modest: it is to demonstrate to the court that
plaintiff's factual scenario is compatible with discriminatory
intent--i.e., that discrimination could be a reason for the
employer's action.'" Ibid. (quoting Marzano v. Computer Science
Corp., 91 F.3d 497, 508 (3d Cir. 1996)). "Once a plaintiff
establishes a prima facie case, an 'inference of discrimination'
is created." Tisby v. Camden Cnty. Corr. Facility, 448 N.J. Super.
241, 248-49 (App. Div.) (quoting Zive, supra, 182 N.J. at 449),
certif. denied, ___ N.J. ___, ___ (2017).
The employer then has the opportunity to challenge the
inference of discrimination by articulating a "legitimate,
nondiscriminatory reason for the employer's action." Zive, supra,
182 N.J. at 449. "If the employer can meet its burden [of
production], the burden again shifts back to the employee to prove
the reason provided by the employer is "merely a pretext for
discrimination and not the true reason for the employment
decision." Tisby, supra, 448 N.J. Super. at 249 (quoting Zive,
supra, 182 N.J. at 449).
At the third step, a plaintiff may put forth evidence that
the reason offered by the employer was pretextual by "either
circumstantial or direct evidence that 'discrimination was more
likely than not a motivating or determinative cause of the action'
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or plaintiff can discredit the legitimate reason provided by the
employer." Id. at 249 (quoting El-Sioufi v. St. Peter's Univ.
Hosp., 382 N.J. Super. 145, 173 (App. Div. 2005)). "[T]he burden
of proving that the employer intentionally discriminated remains
at all times with the employee." Maryanne Grande v. Saint Clare's
Health Sys., ___ N.J. ___, ___ (2017) (slip op. at 19-20).
The elements of the prima facie test vary depending on the
nature of the LAD claim. Victor v. State, 203 N.J. 383, 408
(2010). In Zive, our Supreme Court set out a general test for
termination cases, in which a plaintiff must prove that:
(1) he [or she] was in the protected group;
(2) he [or she] was performing his job at a
level that met his [or her] employer's
legitimate expectations; (3) he [or she]
nevertheless was fired; and (4) the employer
sought someone to perform the same work after
he [or she] left.
[Zive, supra, 182 N.J. at 450; see also
Rendine v. Pantzer, 276 N.J. Super. 398, 434-
35 (1994), aff'd, 141 N.J. 292 (1995)
(relating the burden-shifting scheme in a LAD
termination case for pregnancy
discrimination).]
Defendants do not argue that prong four, hiring a replacement, is
applicable here. Prong four has also been articulated as requiring
a plaintiff to prove "she was terminated under circumstances that
give rise to an inference of unlawful discrimination." Young v.
Hobart W. Grp., 385 N.J. Super. 448, 463 (App. Div. 2005) (citing
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Williams v. Pemberton Twp. Pub. Sch., 323 N.J. Super. 490, 733
(App. Div. 1999)).
Viewing her contentions in the light most favorable to her,
plaintiff made out a prima facie case for disparate treatment
under the PWFA because: 1) she was part of the protected class of
pregnant workers and her employers knew of her pregnancy; 2) she
was performing her work responsibilities; 3) she suffered the
adverse employment action of being demoted to part-time status,
ordered to wash windows, and then fired; and 4) she was required
to perform an act outside the scope of her job description, that
other non-pregnant employees were not required to perform, thus
raising an inference of unlawful discrimination.
Plaintiff asserts that defendants' proffered reason for her
termination was pretextual: that her refusal to use a ladder to
clean windows, when pregnant, does not constitute insubordination.
Plaintiff also argues that she requested a reasonable
accommodation due to her high-risk pregnancy. On Thursday, July
24, 2014, she requested the accommodation from Dr. Schaller seeking
permission to see her doctor once a week based on her doctor's
advice. She maintains she was penalized for the request.
Defendants respond that plaintiff never requested a
reasonable accommodation for her pregnancy. They note that
plaintiff at no point stated that she had restrictions based on
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her pregnancy. Defendants add that even if plaintiff did make a
reasonable accommodation request, the request was not based on the
advice of her physician, which they claim is required under the
PWFA. Regardless of whether plaintiff, in seeking to go to her
doctor weekly made a legally sufficient request for an
accommodation or not, she did present a prima facie case of
pregnancy discrimination.
She submitted sufficient evidence for a reasonable jury to
infer that her termination was a pretext for unlawful
discrimination. Plaintiff argues that she did ask for a reasonable
accommodation from Dr. Schaller based on the advice of her
physician; that the work responsibilities of a medical
assistant/technician do not include climbing ladders to wash
windows; and that Dr. Fallon knew that she required an
accommodation in particular because her pregnancy was high-risk.
Viewing plaintiff's claim in its most favorable light,
shortly after she informed the doctors that she was pregnant, she
heard them whispering that she was a liability. Later, she was
the only employee asked to stand on a ladder and wash windows, and
was terminated for her refusal to do so, although another, non-
pregnant employee who was persistently insubordinate was not
fired. Regardless of whether plaintiff's request to visit her
doctor weekly is viewed as a doctor-directed pregnancy
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accommodation, plaintiff demonstrated sufficient evidence of
pregnancy discrimination to survive summary judgment.
Reversed.
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