Richter v. Oakland Bd. of Educ.

• Citation: 211 A.3d 1226,459 N.J.Super. 400
• Decision Date: 11 June 2019
• Docket Number: DOCKET NO. A-0102-17T2
• Parties: Mary RICHTER, Plaintiff-Appellant/Cross-Respondent, v. OAKLAND BOARD OF EDUCATION, Defendant-Respondent/Cross-Appellant, and Gregg Desiderio, Individually and as Principal of the Valley Middle School, Defendant-Respondent.
• Court: New Jersey Superior Court – Appellate Division

459 N.J.Super. 400

211 A.3d 1226

Mary RICHTER, Plaintiff-Appellant/Cross-Respondent,

v. OAKLAND BOARD OF EDUCATION, Defendant-Respondent/Cross-Appellant,andGregg Desiderio, Individually and as Principal of the Valley Middle School, Defendant-Respondent.

DOCKET NO. A-0102-17T2

Superior Court of New Jersey, Appellate Division.

Argued February 4, 2019

Decided June 11, 2019

Gerald J. Resnick argued the cause for appellant/cross-respondent (Resnick Law Group, PC, attorneys; Gerald J. Resnick, on the briefs).

Betsy Gale Ramos argued the cause for respondent/cross-appellant (Capehart & Scatchard, PA, attorneys; Betsy Gale Ramos and Voris M. Tejada, on the briefs).

Aileen F. Droughton argued the cause for respondents Oakland Board of Education and Gregg Desiderio (Traub Lieberman Straus & Shrewsberry LLP, attorneys; Aileen F. Droughton, of counsel and on the brief; Benjamin L. Rouder, on the brief).

Before Judges Sabatino, Sumners and Mitterhoff.

The opinion of the court was delivered by

SUMNERS, J.A.D.

This matter presents several questions for us to decide. On appeal, the first issue is whether an employee alleging disability discrimination for failure to accommodate under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, is required to establish an adverse employment action to avoid summary judgment dismissal. We also must determine whether the motion judge erred in denying the employee's cross-motion for summary judgment. In the event we determine there is no requirement to establish adverse employment action, the issue on cross-appeal is whether a bodily injury claim arising from the failure to accommodate allegation should be dismissed because it is barred by the exclusive remedy provision of the Workers' Compensation Act (the Compensation Act), N.J.S.A. 34:15-1 to -146. In addition, we must decide whether medical bills and lost wages can be introduced at trial, and if any worker's compensation lien should be applied to any award in plaintiff's favor.

Plaintiff Mary Richter, a middle school teacher who suffers from diabetes, alleges she fainted while teaching due to low blood sugar levels when she was unable to eat lunch at an earlier class period and suffered significant and permanent injuries. She contends the accident would not have occurred had defendants Oakland Board of Education (the Board) and Gregg Desiderio granted her accommodation request to eat lunch earlier. The motion judge granted defendants' motion for summary judgment dismissing Richter's complaint, denied Richter's cross-motion for summary judgment, and denied reconsideration of the dismissal. The judge held that as a matter of law, Richter failed to prove a prima facie case of failure to accommodate her disability because she did not establish an adverse employment action. Thus, her bodily injury claim, which is the subject of the Board's cross-appeal, was denied as moot.

Under the circumstances of this case, we reverse the motion judge's grant of summary judgment dismissing Richter's complaint. Based on our consideration of Supreme Court decisions in Victor v. State, 203 N.J. 383, 4 A.3d 126 (2010) and Royster v. N.J. State Police, 227 N.J. 482, 152 A.3d 900 (2017), we conclude that Richter need not demonstrate an adverse employment action to establish a prima facie case of a failure to accommodate claim under the LAD. Because there were genuine issues of material facts concerning whether Richter was provided an accommodation and whether the accommodation was adequate, which must be determined at a trial, we affirm the denial of Richter's cross-motion for summary judgment. As to the Board's cross-appeal, we conclude the Compensation Act does not bar Richter's bodily injury claim, but should she prevail at trial, the Board should receive a credit based on the amount it paid in her workers' compensation claim in accordance with N.J.S.A. 34:15-40 (section 40).

I

Richter, a Type I Diabetic, is employed by the Board as a science teacher at Valley Middle School (VMS). VMS's academic calendar is divided into four marking periods. Each school day consists of eight class periods. Student lunch periods are during the fifth and sixth periods, which take place between 11:31 a.m. to 1:02 p.m. Teachers are assigned to supervise students during lunch, designated as cafeteria duty. Thus, some teachers are scheduled to have their lunch from 1:05 p.m. to 1:49 p.m., during seventh period. They are also assigned other non-teaching responsibilities, such as hall duty and health office duty.

At the beginning of the 2012/2013 school year, Richter received her schedule, in which she was assigned to cafeteria duty on Wednesdays and Thursdays during fifth period, followed by teaching a class during sixth period and having her lunch during seventh period. Richter believed that waiting until seventh period, which began at 1:05 p.m., to eat a meal would have a negative effect on her blood sugar levels due to the medications she takes for her diabetes. Therefore, she asked Desiderio, the VMS principal, to have her schedule adjusted so that she could have lunch during the earlier fifth period. Desiderio responded that he would "look into it."

After Desiderio failed to contact her, Richter sent a follow-up email on September 10, 2012, reiterating her need for a schedule change because of her medical condition. It was not until Richter sent another email that Desiderio responded by stating he would look into her request, but cautioned he could not "undo what he did." Thus, during the first marking period, Richter maintained her fifth-period cafeteria duty for two days a week. With her lunch delayed until seventh period, she ingested glucose tablets during sixth period to maintain her blood sugar levels.

When plaintiff received her schedule for the second marking period, her lunch was scheduled for the fifth period every school day – which satisfied her request for an earlier lunch. This, however, changed for the third marking period, when she was scheduled for cafeteria duty and teaching science respectively during the fifth and sixth periods on Tuesdays with her lunch set for seventh period that day. Richter immediately approached Desiderio to remind him of her need to have lunch during fifth period, as she had throughout the second marking period. He verbally told her that he needed her for cafeteria duty because three teachers had to be assigned to the duty. He then suggested that if she was not feeling well, she should sit down to have a snack, and return to cafeteria duty when she was feeling better. The VMS vice principal told her she should skip cafeteria duty. Her union president instructed her that she would not be disciplined for skipping cafeteria duty.

Under the impression that the school's official schedule would have to be revised in writing, Richter believed she was still obligated to remain on cafeteria duty during fifth period on Tuesdays. Desiderio never directed anyone in the school's office to change Richter's schedule, or otherwise noted anywhere that her scheduled lunch period on Tuesdays changed from Seventh period to fifth period to accommodate her medical condition. Consequently, Richter's blood sugar levels on Tuesdays often fell below the normal range as she approached the end of her sixth period class, requiring her to ingest three or more glucose tablets to try to keep her sugar elevated.

Unfortunately, on Tuesday, March 5, 2013, towards the end of the sixth period, despite ingesting glucose tablets throughout the period, Richter suffered a hypoglycemic event in front of her students. She had a seizure and became unconscious causing her to strike her head and face on a lab table and the floor, and to bleed extensively. She was transported to the hospital for treatment. Even though she had minor hypoglycemic events at school in the past, she had never passed out at school.

After the accident, Desiderio sent a number of text messages to Richter telling her that he previously told her not to attend cafeteria duty on Tuesdays. When she again asked Desiderio to make some documented change in her schedule, he placed an X on her schedule where it indicated she had cafeteria duty during fifth period on Tuesdays.

From her fall, Richter suffered the following serious and permanent injuries: total loss of smell;¹ meaningful loss of taste; dental and facial trauma; tinnitus; insomnia; tingling in her fingers; extraction of her right front tooth; implantation of a dental bridge, and bone grafts ; altered speech; pain in neck and radiation to posterior shoulder; paranesthesia and dysesthesias; post-concussion syndrome ; vertigo; dizziness; severe emotional distress; and decreased life expectancy. She lost sick days and incurred significant dental costs not covered by her insurance.

As a result of her work-related injuries, Richter filed a workers' compensation claim. The Board paid $ 18,940.94 for her medical bills, $ 9,792.40 for temporary disability benefits and $ 77,200 for the permanent injuries she suffered.

Richter sued the Board and Desiderio, individually and as principal of the school, alleging disability discrimination in violation of the LAD due to their alleged failure to accommodate her medical condition. The Board's initial motion for partial summary judgment to dismiss Richter's bodily injury claim as being barred by the Compensation Act was denied on July 10, 2015. In an oral decision, the motion judge, citing Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 790 A.2d 884 (2002), held that under the Compensation Act's intentional wrong exception, Richter's LAD bodily injury claim was not barred.

Thereafter, both defendants moved for summary judgment to dismiss Richter's complaint with prejudice, claiming Richter did not establish a prima facie LAD claim of disability discrimination for failure to accommodate because she suffered no adverse employment action. Richter cross-moved for summary judgment claiming she suffered an adverse...