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A.D.P. v. EXXONMOBIL RESEARCH
54 A.3d 813 (2012)
428 N.J. Super. 518
A.D.P., Plaintiff-Appellant,
v.
EXXONMOBIL RESEARCH AND ENGINEERING COMPANY, Defendant-Respondent.
Docket No. A-4806-10T4
Superior Court of New Jersey, Appellate Division.
Argued January 18, 2012.
Decided October 26, 2012.
Before Judges YANNOTTI, ESPINOSA and KENNEDY.
The opinion of the court was delivered by ESPINOSA, J.A.D. In this appeal, we consider whether summary judgment was properly granted to an employer that required a long-term employee whose job performance was satisfactory to submit to random alcohol testing and terminated her employment when a test showed she had used alcohol. Because the record revealed that the basis for the testing and termination was the employee's voluntary disclosure that she was an alcoholic and not the result of inadequate job performance, the imposition of these conditions constituted direct evidence of discrimination. As a result, the burden of persuasion shifted to the employer, requiring it to show that the employment actions taken would have occurred even if it had not considered plaintiff's disability, see McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 525, 816 A.2d 164 (2003), a burden it failed to satisfy as a matter of law. We therefore conclude that summary judgment dismissing plaintiff's disability discrimination claim was inappropriate. Many of the facts here are undisputed. As to those on which the parties disagree, we view the facts in the light most favorable to plaintiff. See R. 4:46-2(c). In 2007, defendant ExxonMobil Research and Engineering Company (ExxonMobil or defendant), required plaintiff A.D.P., an employee of twenty-nine years, to sign an agreement that required her to totally abstain from alcohol and submit to
random breathalyzer tests as a condition of her continued employment. At the outset, we emphasize a fact that informs our analysis. It is undisputed that plaintiff was not subject to testing and termination here pursuant to a last chance agreement.1 A.D.P. was not the subject of any pending or threatened employment or disciplinary action. Indeed, the evidence includes testimony from one ExxonMobil manager that the imposition of these conditions was unrelated to her job performance and testimony from a Human Resources Advisor that plaintiff's employment would have been terminated when she failed a breathalyzer test even if she had been performing in the top one-percent of her group.2 The evidence therefore supports a conclusion that A.D.P. was subject to these requirements and fired when a breathalyzer test revealed alcohol use because she voluntarily disclosed she was an alcoholic and enrolled in an inpatient rehabilitation program. This admission triggered ExxonMobil's Alcohol and Drug Use Policy (the Policy) which, although facially discriminatory, ExxonMobil defended as reasonable. The motion judge agreed, granting summary judgment and dismissing plaintiff's complaint, which alleged that (1) defendant violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by discriminating against her because of her disability; and (2) that her termination violated public policy, see Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72, 417 A.2d 505 (1980). As noted, summary judgment was erroneously granted on plaintiff's LAD claim. However, we conclude, for the reasons that follow, that summary judgment was appropriate to dismiss her Pierce claim. Plaintiff was initially hired by a predecessor company as a research technician in 1978. She received promotions in 1983, 1985, 1987, 1990, 1993, 1998 and 2000. ExxonMobil evaluates its employees on an annual basis, ranking them in order from highest performing employees to the lowest. Through much of her career, A.D.P. was consistently ranked as a top performer. Hans Thomann, who later supervised plaintiff, described her in the earlier years as "the go-getter. She was the go-to person to get things done." In 2004, plaintiff's husband died. She suffered from depression thereafter, as noticed by her co-workers, and other medical conditions. Nonetheless, in April 2005, she was promoted to the position of Senior Research Associate. In this new position, her ranking dropped but she remained in the middle third of employees.
1. "Last chance agreements," come into play after an employee incident that calls for discipline and have been described as "a contract between employer and employee to suspend disciplinary action pending a probationary period in which the employee is afforded a chance to improve his or her performance." Boise Cascade Corp. v. Paper Allied-Indus., Chem. & Energy Workers, Local 7-0159, 309 F.3d 1075, 1078 n. 3 (8th Cir.2002). In the event the employee violates the terms of the last chance agreement, the employer is free to impose the disciplinary action that was suspended or some other discipline appropriate to the circumstances, including termination. See Watson v. City of E. Orange, 175 N.J. 442, 815 A.2d 956 (2003) (per curiam); see e.g., In re Jackson, 294 N.J.Super. 233, 683 A.2d 203 (App.Div.1996), certif. denied, 149 N.J. 141, 693 A.2d 110 (1997); see also Dow Chem. Co. v. Local No. 564, Int'l Union of Operating Eng'rs, 246 F.Supp.2d 602, 607 n. 2 (S.D.Tex. 2002) aff'd, 83 Fed.Appx. 648 (5th Cir.2003).
2. Defendant has presented evidence which, it argues, shows that plaintiff's performance suffered prior to her termination and that there were suspicions that she abused alcohol prior to her disclosure. However, as noted, in our review of the summary judgment order, we view the evidence in the light most favorable to plaintiff.
3. These readings are below the threshold BAC of 0.08 set by N.J.S.A. 39:4-50(a) for driving under the influence.
4. McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677-78 (1973). See Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 82-83, 389 A.2d 465 (1978) (applying Title VII analysis to LAD claim alleging sex discrimination in discharging plaintiff); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595-96, 538 A.2d 794 (1988) (applying Title VII analysis to LAD claim alleging discriminatory termination of plaintiff because of alcoholism, a physical handicap).
5. Although there is a lack of consensus among federal courts as to the application of the Price Waterhouse principles to various statutory causes of action following the United States Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), our Supreme Court has interpreted "mixed motive" cases and their direct evidence requirement to be broadly applicable to discrimination cases without regard to the statutory context. Myers, supra, 380 N.J.Super. at 461, 882 A.2d 961; see also O'Brien v. Telcordia Techs., Inc., 420 N.J.Super. 256, 263-65, 20 A.3d 1154 (App.Div.2011), certif. denied, 210 N.J. 479, 45 A.3d 984 (2012).
6. The business necessity defense provides an "extremely narrow exception to the general prohibition of discrimination," In re Juvenile Det. Officer Union Cnty., 364 N.J.Super. 608, 616, 837 A.2d 1101 (App.Div.2003), and in the context of disability discrimination, would permit discrimination only when "the nature and extent of the disability reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1.
7. Sections 12112(d)(1) and (4) of the ADA generally prohibit employers from requiring medical examinations and inquiries of disabled employees "as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."
8. The website contradicts defendant's statement that there is a cure for alcoholism, describing it as "a chronic, but treatable, brain disorder." Substance Abuse & Addiction Treatment Services, Carrier Clinic, www. carrierclinic.org/programs-addiction.php (last visited Sept. 25, 2012); see also Alcohol Dependence, Nat'l Inst. on Alcohol Abuse and Alcoholism, www.niaaa.nih.gov/alcohol-dependence (last visited Sept. 25, 2012) (also describing alcohol as a treatable, but chronic, disease).
9. The regulation provides the following examples of reasonable accommodation:
i. Making facilities used by employees readily accessible and usable by people with disabilities;
ii. Job restructuring, part-time or modified work schedules or leaves of absence;
iii. Acquisition or modification of equipment or devices; and
iv. Job reassignment and other similar actions.
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