Vanessa Zapata v. Fellowship Village Senior Living ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-4010-22
VANESSA ZAPATA,
Complainant-Appellant,
v.
FELLOWSHIP VILLAGE SENIOR
LIVING,
Respondent-Respondent.
_______________________________
Submitted October 17, 2024 – Decided November 18, 2024
Before Judges Mawla and Natali.
On appeal from the New Jersey Division on Civil
Rights, Department of Law and Public Safety, Docket
No. E2021-003496.
Vanessa Zapata, appellant pro se.
Hall Booth Smith, PC, attorneys for respondent
Fellowship Senior Living (Jacqueline Voronov, of
counsel and on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent New Jersey Division on Civil Rights (Janet
Greenberg Cohen, Assistant Attorney General, of
counsel; Surinder K. Aggarwal, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Vanessa Zapata challenges an April 4, 2023 final determination
of the Deputy Director of the Division on Civil Rights (the Division) finding no
probable cause to support her complaint that her former employer, Fellowship
Village Senior Living (Fellowship), discriminated against her on the basis of her
religious practice. We affirm.
On November 17, 2021, appellant filed a verified complaint with the
Division, alleging Fellowship "denied her promotion and terminated her
employment, based on her religious practice and/or observance" in violation of
the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
Following the filing of her complaint, the Division conducted an investigation
that revealed the following facts.
On May 21, 2020, Fellowship hired appellant as a life enrichment
assistant. In that role, her responsibilities centered around resident care and
included direct contact with Fellowship's senior population. In July 2021,
appellant accepted a promotion to household coordinator. Prior to her
promotion, Fellowship informed its employees on April 9, 2021, that "as a
condition of continued employment everyone would be required to be
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vaccinated [against COVID-19] once the emergency use authorization was lifted
. . . ." In addition to managerial responsibilities, the household coordinator
position similarly required direct contact with Fellowship's residents.
Appellant submitted a religious accommodation request form on
September 7, 2021, seeking an exemption from Fellowship's vaccine
requirement. In support of her request, appellant cited her belief that COVID-
19 "vaccines use abortion derived cell line HGK-293[,]" and receiving such a
vaccine would "make[] [her] complicit in an action that offends [her] religious
faith." (emphasis omitted).
After "carefully review[ing]" appellant's request for a religious
accommodation, on September 22, 2021, Fellowship denied her request and
notified her by way of certified mail and email.1 Fellowship explained to grant
appellant an accommodation would "create undue hardship to Fellowship and
compromise workplace and resident safety." Fellowship based its decision on
the "nature" of appellant's position and the "population" Fellowship serves.
After appellant refused to comply with Fellowship's vaccine mandate,
Fellowship terminated her employment on October 14, 2021.
1
According to appellant, she did not become aware of the September 22 letter
until October 14, 2021, because Fellowship sent it "to the wrong address and a
week late."
A-4010-22
3
As part of its investigation, the Division interviewed both appellant and
Fellowship's director of human resources, Luisa Mota.2 In her interview, Mota
stated Fellowship received four requests for religious accommodations and
approved none of them. Additionally, despite appellant's assertion that
Fellowship granted a medical exemption to another individual who was also
employed as a life enrichment assistant, Mota stated Fellowship did not receive
any medical exemption requests and the employee referenced by appellant
neither requested nor was granted an accommodation.
After concluding its investigation, on April 4, 2023, the Division issued a
finding of no probable cause to support appellant's allegations of discrimination
and retaliation. Summarizing the Division's findings, Deputy Director
Rosemary DiSavino explained "the investigation did not find sufficient evidence
to support a reasonable suspicion that [Fellowship] discriminated against
[appellant] because she requested or used a religious accommodation."
Specifically, the Division found granting appellant's accommodation request
would impose an undue hardship upon Fellowship "because it increased the risk
that [appellant] could transmit [COVID-19] to vulnerable elderly residents,
thereby interfering with the safe and efficient operation of the workplace."
2
Appellant's interview does not appear in the record.
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Additionally, contrary to appellant's allegation that Fellowship terminated
her employment because of her religious beliefs, the Division found the
termination occurred because of her refusal to comply with its COVID-19
vaccine requirement, "which was created based on guidance from the CDC." In
its decision, the Division informed appellant any appeal she may file must be
submitted to our court within forty-five days.3
On appeal, appellant contends the Division's finding of no probable cause
"is wrong as a matter of law because [she] . . . can provide evidence of [p]retext,
[c]ausation, [t]emporal [p]roximity, and [c]at's [p]aw [t]heory of [l]iability
against [Fellowship], in addition to [f]ailure to [p]romote and retaliation in
violation of the Civil Rights Act of 1964 and the Civil Rights Act of 1991." She
also reprises her argument that Fellowship "approved another employee's
3
We acknowledge appellant perfected her appeal 163 days after the Division
rendered its decision, contrary to the requirement that an appeal must be
perfected within forty-five days "from the date of service of the decision or
notice of the action taken." R. 2:4-1(b). She did, however, mail what she
characterized as a notice of appeal to all parties a day before it was due to the
Clerk of the Appellate Division.
We may, in appropriate cases, grant leave to appeal nunc pro tunc. R. 2:4-
4(b)(2). While such relief "is most extraordinary[,]" Frantzen v. Howard, 132
N.J. Super. 226, 227 (App. Div. 1975), under the circumstances, which included
appellant's timely submission of her notice of appeal to the parties, we have
decided to treat the appeal as timely on a nunc pro tunc basis and address the
merits.
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medical exemption request, an employee in the same department, performing
the same daily duties." We are unpersuaded.
"[T]he Appellate Division's initial review of [the Director's] decision is a
limited one." Wojtkowiak v. N.J. Motor Vehicle Comm'n, 439 N.J. Super. 1, 13
(App. Div. 2015) (alterations in original) (quoting Clowes v. Terminix Int'l, Inc.,
109 N.J. 575, 587 (1988)). We must give due regard to the Division's expertise
and "survey the record to determine whether there is sufficient credible
competent evidence in the record to support the agency head's conclusions."
Clowes, 109 N.J. at 587 (citing Goodman v. London Metals Exch., Inc., 86 N.J.
19, 28 (1988)).
We must sustain the Division's decision "unless the agency's decision is
shown to have been 'arbitrary, capricious, or unreasonable, or [] not supported
by substantial credible evidence in the record as a whole.'" Wojtkowiak, 439
N.J. Super. at 13 (alteration in original) (quoting Barrick v. State, 218 N.J. 247,
259 (2014)). In determining whether an agency's decision was arbitrary,
capricious, or unreasonable, we examine: (1) whether the agency's decision
conforms with the law; (2) whether the decision is supported by substantial
evidence in the record; and "(3) whether in applying the legislative policies to
the facts, the agency clearly erred in reaching a conclusion that could not
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reasonably have been made on a showing of the relevant factors." In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 482-
83 (2007)).
The Division is tasked with preventing and eliminating discrimination in
any manner prohibited by the LAD. See N.J.S.A. 10:5-6. Under the LAD, an
individual alleging unlawful discrimination may file suit in the Superior Court
or seek relief in the Division. Hermann v. Fairleigh Dickinson Univ., 183 N.J.
Super. 500, 503 (App. Div. 1982) (citing N.J.S.A. 10:5-13).
When an individual files an administrative complaint, the Division must
conduct an investigation to determine if probable cause exists to support the
allegations of discrimination. See N.J.S.A. 10:5-14; N.J.A.C. 13:4-10.2(a). For
purposes of this analysis, "probable cause" means "a reasonable ground of
suspicion supported by facts and circumstances strong enough in themselves to
warrant a cautious person to believe that the [LAD] . . . has been violated . . . ."
N.J.A.C. 13:4-10.2(b). If the Director determines probable cause exists, the
complaint will proceed to a hearing on the merits. N.J.A.C. 13:4-11.1(b). If the
Director determines probable cause does not exist, however, that decision "shall
be considered a final order" subject to appellate review. N.J.A.C. 13:4-10.2(e);
R. 2:2-3(a)(2).
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Under the LAD, it is unlawful for an employer to discriminate in
promotion or terminate an employee based on the employee's religion o r creed.
See N.J.S.A. 10:5-12(a). Additionally, the LAD prohibits retaliation against
individuals who engage in protected activity, including an employee who has
requested a religious accommodation. See N.J.S.A. 10:5-12(d), (q)(1). In that
regard, the LAD provides it is an unlawful employment practice:
For any employer to impose upon a person as a
condition of obtaining or retaining employment,
including opportunities for promotion, advancement or
transfers, any terms or conditions that would require a
person to violate or forego a sincerely held . . . religious
belief, unless, after engaging in a bona fide effort, the
employer demonstrates that it is unable to reasonably
accommodate the employee's religious [belief] . . .
without undue hardship on the conduct of the
employer's business.
[N.J.S.A. 10:5-12(q)(1).]
The LAD proceeds to define undue hardship as "an accommodation
requiring unreasonable expense or difficulty, unreasonable interference with the
safe or efficient operation of the workplace or a violation of a bona fide seniority
system or a violation of any provision of a bona fide collective bargaining
agreement." N.J.S.A. 10:5-12(q)(3)(a). In addition to identifying several
factors that should be considered in determining whether an accommodation
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constitutes an undue hardship, 4 the LAD provides "[a]n accommodation shall be
considered to constitute an undue hardship if it will result in the inability of an
employee to perform the essential functions of the position in which [they are]
employed." N.J.S.A. 10:5-12(q)(3)(c).
Here, having carefully reviewed the record before us, we find the
Division's finding of no probable cause is supported by substantial credible
evidence in the record. As noted, the Division conducted a thorough
investigation that included interviews with appellant and Fellowship's director
of human resources. Additionally, the Division reviewed documents submitted
by the parties including, but not limited to: (1) a description of the life
enrichment assistant position; (2) a description of the household coordinator
position; (3) Fellowship's August 26, 2021 notice to employees regarding its
COVID-19 vaccine mandate; (4) "[n]otice from [Fellowship]'s Executive
Director Mark Aguilar, dated September 16, 2021"; (5) a copy of appellant's
September 7, 2021 religious accommodation request form; (6) a copy of
Fellowship's September 22, 2021 letter denying appellant's request for a
4
Those factors include the cost of an accommodation, the number of individuals
who will require that accommodation, and the degree to which providing the
accommodation would affect an employer with multiple facilities. N.J.S.A.
10:5-12(q)(3)(b)(i) to (iii).
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religious accommodation; and (7) various email correspondence between
appellant and Fellowship management personnel.
Based on the entirety of this record, the Division found Fellowship
declined to grant appellant's request for a religious accommodation because it
would interfere "with the safe and efficient operation of the workplace" and
increase the risk that appellant could transmit COVID-19 to Fellowship's
vulnerable elderly residents. Additionally, contrary to appellant's argument that
Fellowship granted another employee employed in the same role as her a
medical accommodation, the Division's investigation revealed that Fellowship
did not grant any of its employees an exemption to its vaccine mandate, religious
or medical. And the Division clearly considered that investigation and
concluded it "failed to find that probable cause exists to credit the allegations in
[appellant's] complaint . . . ." We are satisfied the record provides "sufficient
credible competent evidence" to support the Division's findings. Clowes, 109
N.J. at 587.
To the extent we have not specifically addressed any of appellant's
arguments it is because we have concluded they are without sufficient merit to
warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
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