Key Decision by US District Court for the District of New Jersey Issued in the Disability Discrimination Case of Ellis v. Pub. Serv. Elec.

On September 29, 2023, a decision was rendered in the United States District Court for the District of New Jersey in the case Ellis v. Pub. Serv. Elec.

The Court commenced its opinion by stating “[t]his is a disability discrimination action filed, by Plaintiff, Amanda Ellis, against her former employer, Defendant Public Service Electric & Gas (“PSE&G”).” The Court had before it PSE&G’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.

By way of background, “Plaintiff began her employment with PSE&G on April 14, 2008.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at page 1 (D.N.J. Sep. 29, 2023) (citation and footnote omitted.) “From 2017 until her termination in April 2020, Plaintiff served as an inbound credit and collections representative (“Inbound Position” or “Inbound Representative”).” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *1 (D.N.J. Sep. 29, 2023) (citation omitted.)

“In September 2018, Plaintiff was diagnosed with Sjogren’s disease, which is a chronic autoimmune disorder where the immune system attacks glands that make moisture in the eyes, mouth, and other parts of the body.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *2 (D.N.J. Sep. 29, 2023) (citation omitted.) “Plaintiff suffered a “flareup” of the disease in August 2019, causing her to be unable to work from approximately August 5, 2019 to August 26, 2019” and “Plaintiffs medical team cleared her to return to work on September 3, 2019, but stated that she “need[ed] to have access to fluids & cough drops during her entire shift[,]” and that she “need[ed] breaks in between customer calls, at least 5 min[utes] when needed.”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *2 (D.N.J. Sep. 29, 2023) (citations omitted.) “Because of these restrictions (the “Requested Accommodation”), PSE&G required Plaintiff to see a PSE&G doctor upon her return” and “[w]hen she returned on September 3, 2019, PSE&G’s doctor temporarily approved the Requested Accommodation until he could assess the effectiveness of Plaintiffs new medication at a later date.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *2 (D.N.J. Sep. 29, 2023) (citations omitted.) “However, that same day, Plaintiffs supervisor sent her home because she was not permitted to return to work until PSE&G approved or denied the Requested Accommodation.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *2-3 (D.N.J. Sep. 29, 2023) (citations omitted.) “On September 30, 2019, PSE&G’s Accommodations Review Committee (“ARC”) issued a letter to Plaintiff offering her an alternative accommodation (“Modified Accommodation”)…” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *3 (D.N.J. Sep. 29, 2023) (citations omitted.)

“Plaintiff remained out of work until she was able to discuss the Modified Accommodation with her doctor in mid-October 2019.” Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *4 (D.N.J. Sep. 29, 2023) (citation omitted.) “Plaintiff consequently returned to work and was put into a ten-day “refresher training,” after which she would return to taking inbound credit and collection calls.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *4 (D.N.J. Sep. 29, 2023) (citation omitted.) “However, on November 13, 2019—eight clays into the ten-day training—Plaintiff received a call from Sedgwick, PSE&G’s absence management vendor, who advised her to go home because her accommodation had not been approved.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *4 (D.N.J. Sep. 29, 2023) (citation omitted.) “Sedgwick advised Plaintiff to “remain out of work until PSE&G or Sedgwick called] . . . to advise of next steps[,]”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *4-5 (D.N.J. Sep. 29, 2023)(citation omitted.)

“On December 3, 2019, ARC issued another letter to Plaintiff; advising her that the Requested Accommodation had been denied.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *5 (D.N.J. Sep. 29, 2023) (citation omitted.) “The letter stated that ARC had determined that Plaintiff was unable to perform the essential functions of her position, “with or without reasonable accommodations.”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *5 (D.N.J. Sep. 29, 2023) (citation omitted.) “The letter notified Plaintiff that job searches would be performed for 60 days, and that if a comparable job was found and Plaintiff did not accept it, or if no job was found commensurate with her skill set, the matter would be referred to local management.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *5 (D.N.J. Sep. 29, 2023) (citation omitted.) “As a result of these job searches, PSE&G offered Plaintiff two teller positions.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *5 (D.N.J. Sep. 29, 2023.)

“The parties agree[d] that Plaintiff denied the position because it would entail a salary reduction.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *5 (D.N.J. Sep. 29, 2023) (citation omitted.) “However, Plaintiff asserts that she also declined the offer because she believed that she had an approved accommodation—the Modified Accommodation and that due to the rapid pace of customers, such an accommodation would be unworkable in a teller position as there would not be enough time to hydrate.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *5 (D.N.J. Sep. 29, 2023) (citation omitted.) “…[I]n March 2020, Plaintiff was offered a teller position in Elizabeth, New Jersey.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *6 (D.N.J. Sep. 29, 2023) (citation omitted.) “Plaintiff accepted the offer on the condition that she would not be “locked into” the position under the relevant collective bargaining agreements.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *6 (D.N.J. Sep. 29, 2023) (citation omitted.) “…Plaintiff later rejected the position because she did not want to be “locked in” for 12 months.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *6 (D.N.J. Sep. 29, 2023) (citation omitted.)

“Despite several warnings from PSE&G that Plaintiff’s job search had ended and that she would be separated from the company if she denied the teller position in Elizabeth, Plaintiff solidified her decision to decline the position to Vito Viscomi, Manager of Operations at PSE&G’s Call Center, on March 27, 2020.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *6 (D.N.J. Sep. 29, 2023) (citation omitted.) “Plaintiff was ultimately terminated on April 9, 2020” and “Plaintiffs termination letter recounted the details leading up to her separation from PSE&G.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *7 (D.N.J. Sep. 29, 2023) (citations omitted.) “The letter stated in part that PSE&G could not accommodate Plaintiffs “permanent restriction of five (5) minute breaks between calls” for her Inbound Position, and that “[a]s a result, job searches were performed.””. See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *7 (D.N.J. Sep. 29, 2023) (citation omitted.) “It then detailed Plaintiffs communications with Kupratis and Viscomi regarding her rejection of the two teller positions but made no mention of the Modified Accommodation.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *7 (D.N.J. Sep. 29, 2023) (citation omitted.)

After filing a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) against PSE&G, which charge was dismissed by the EEOC and after which the EEOC issued a right to sue letter, “…Plaintiff filed the present action alleging violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112 to 12117, and the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:54 et seq., against PSE&G”. See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *7 (D.N.J. Sep. 29, 2023) (footnote omitted.)

At the outset, “[t]he Court first [sought] to clarify the claims in Plaintiff’s Complaint, which [was] comprised of the District of New Jersey’s form complaint for employment discrimination cases.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *9 (D.N.J. Sep. 29, 2023.) “Plaintiff checked off the following boxes [in the form complaint]: “Termination of my employment,” “Failure to promote me,” “Failure to accommodate my disability,” “Unequal terms and conditions of my employment,” and “Retaliation.”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *9 (D.N.J. Sep. 29, 2023) (citation omitted.) The Court found that Plaintiff’s failure to promote and unequal terms and conditions claims were abandoned and that “only Plaintiffs failure to accommodate, termination, and retaliation claims under the ADA and the LAD [remained].” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *10 (D.N.J. Sep. 29, 2023.)

As for Disability Discrimination under the ADA and the LAD, the Court indicated that “[g]enerally, “to establish a prima facie case of disability discrimination under the ADA and the LAD, a plaintiff must first demonstrate that: (1) he is disabled within the meaning of the ADA and the LAD; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) that he has suffered an otherwise adverse employment action because of his disability.”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *11-12 (D.N.J. Sep. 29, 2023) (citing Hwaga, 2019 WL 13277388, at *4 (citations omitted).) “”If the plaintiff successfully meets the requirements of a prima facie case, the burden then shifts to the employer to articulate a legitimate, nonretaliatory or nondiscriminatory reason for its actions.”” and “”[i]f the employer produces such a reason, the burden then shifts back to the plaintiff to prove that the employer’s nonretaliatory or nondiscriminatory explanation is merely a pretext for the discrimination or retaliation[.]” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *12 (D.N.J. Sep. 29, 2023)(citing Id. at 842.)

As to Failure to Accommodate under the ADA and the LAD, the Court stated that “”[b]oth the ADA and the LAD require an employer that is a covered entity to provide reasonable accommodation to qualified individuals with disabilities who are employees, unless to do so would cause undue hardship.”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *12 (D.N.J. Sep. 29, 2023) (citing Hwaga, 2019 WL 13277388, at *5; see 42 U.S.C. § 12112(b)(5)(A); N.J.A.C. § 13:13-2.5(b).) “…[A]fter showing an initial prima facie case of disability discrimination, a plaintiff asserting a failure to accommodate claim under the ADA and LAD must also establish “(1) the employer knew about the employee’s disability; (2) the employee requested accommodations or assistance for his disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *13 (D.N.J. Sep. 29, 2023) (citing Hwaga, 2019 WL 13277388, at *5; see Royster v. New Jersey State Police, 152 A.3d 900, 910 (2017) (“holding that the same proofs are implicated under both the LAD and the ADA”).)

“The parties first dispute[d] the third element of Plaintiffs failure to accommodate claim, namely, whether PSE&G made a good faith effort to assist Plaintiff in seeking accommodations.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *13-14 (D.N.J. Sep. 29, 2023.) “The Court [found] that there [was] a genuine dispute of material fact as to whether PSE&G or Plaintiff failed to uphold their respective duties to engage in the interactive process in good faith.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *16 (D.N.J. Sep. 29, 2023.)

The Court stated that “[p]rimarily, disputes exist regarding (1) whether Plaintiff was required to inform PSE&G that her doctor approved the Modified Accommodation before returning to work; (2) whether Plaintiff actually communicated her acceptance of the Modified Accommodation to PSE&G; and (3) whether Plaintiff caused the breakdown in the interactive process by failing to ask PSE&G about the Modified Accommodation once the job searches began.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at page 16.

The Court stated that “[b]oth the employee and the employer have a duty to engage in the interactive process.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *20 (D.N.J. Sep. 29, 2023) (citations omitted.) The Court stated that “[o]n the evidence presented here, “a reasonable jury could . . . conclude that either party violated the duty to engage with good faith in the interactive process” and “[b]ecause genuine issues of material fact exist on that issue, . . . . [a] fact-finder must settle that dispute.”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *20 (D.N.J. Sep. 29, 2023) (citations omitted.) The Court further stated that “[s]eparately, a genuine issue of material fact exists as to whether the two teller positions offered to Plaintiff were reasonable accommodations under the ADA and LAD.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at page 21 (D.N.J. Sep. 29, 2023) (citation omitted.) The Court stated that “”[a[]n employer may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *21 (D.N.J. Sep. 29, 2023) citing Skerski v. Time Warner Cable Co., 257 F.3d 273, 285 (3d Cir. 2001)) (other citations omitted.) The Court indicated that “[a] genuine issue of material fact exists as to whether an equivalent position was available to Plaintiff—and ultimately, whether the two teller positions offered to Plaintiff were reasonable accommodations under the ADA and LAD because disputes still remain as to whether the outbound position offered a comparable salary to Plaintiffs Inbound Position, whether the duties of the outbound position allowed for sufficient breaks between customer calls, and why PSE&G was unable to offer the position to Plaintiff.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *22-23 (D.N.J. Sep. 29, 2023.) The Court further found that “PSE&G’s argument regarding whether the Requested

Accommodation was reasonable appears to be irrelevant at this juncture.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *24 (D.N.J. Sep. 29, 2023.)

As to Plaintiff’s Discrimination and Retaliation claims, the Court stated that “[t]o defeat summary judgment at the pretext stage under the McDonnell Douglas framework, Plaintiff must “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.”” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at *25 (D.N.J. Sep. 29, 2023) (citing Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006))(other citation omitted.) The Court stated that “[v]iewing the evidence in the light most favorable to Plaintiff; a reasonable factfinder could disbelieve PSE&G’s asserted reason for Plaintiffs termination” as “…genuine disputes of material fact exist as to whether Plaintiff rejected the Modified Accommodation and whether the teller positions offered to her were reasonable accommodations” and “[a]s such, Plaintiff has defeated summary judgment at the pretext stage.” See Ellis v. Pub. Serv. Elec., No. 2:20-CV-17893 (WJM), 2023 U.S. Dist. LEXIS 176796, at page 25 (D.N.J. Sep. 29, 2023.)

Ultimately, the Court denied PSE&G’s motion for summary judgment.

If you have any further questions or concerns as to how this court decision may affect your company’s workplace policies and procedures, we, at Thomas Paschos & Associates, P.C. would be glad to speak with you and review your workplace policies and procedures. One of our attorneys who specializing in this field can speak with you today about our services. Contact Thomas Paschos & Associates, P.C. for more information. We can be reached at 856-354-1900 or 267-205-2444. You can also contact Thomas Paschos, Esq. TPaschos@pascholaw.com