ROBERT B. KUGLER, District Judge.
This matter comes before the Court on a motion by Defendant United Parcel Service ("Defendant" or "UPS") for summary judgment on all claims alleged against it in the Complaint of Plaintiff Kathleen Decree ("Plaintiff" or "Decree"). Plaintiff's Complaint includes allegations against Defendant pursuant to the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. ("LAD"), the New Jersey Workers' Compensation Statute, N.J. Stat. Ann. § 34:15-1, et seq., and the common law. Plaintiff has filed a cross-motion for partial summary judgment as to its LAD and breach of contract claims. For the reasons expressed below, the Court will grant in part and deny in part Defendant's motion. Plaintiff's motion will be denied.
A. Decree's Work for UPS
Decree began working for UPS as a package driver in 1987. She steadily rose through the employment ranks, holding such positions as Supervisor Human Resources/Acting Manager, On-Car Supervisor, Preload Supervisor, Saturday Air Supervisor, International Supervisor, Vineland Business Manager, United Way Loan Executive to Southeastern United Way, and Midnight Manager of Philadelphia Air Hub. Most recently, from 2000 to 2007, Decree held the position of Business Manager of the Marlton Center, located within the Lawnside Division.
Decree's daily responsibilities as Business Manager of the Marlton Center included delegating responsibilities and assignments to subordinates, attending labor meetings, and supervising subordinates' training, safety, and occupational development. The physical aspects of her position included (1) the simple hand grasping, manipulation, and reaching associated with office tasks; (2) the lifting, lowering, pushing, and pulling associated with package handling; and (3) traveling by car to attend meetings, conduct customer visits, meet distressed package drivers, and follow drivers to audit compliance with training. Plaintiff's workload predictably increased by several orders of magnitude twice a year during the peak seasons of Christmas and Summer.
The parties dispute the centrality of the physical aspects of Plaintiff's job. UPS maintains a document that describes the "essential job functions" of an Operations Supervisor/Manager to include: "travel by car and plane to attend meetings at other locations and call on non-UPS locations and customers," as well as "[l]ift, lower, push, pull, leverage and manipulate equipment and/or packages weighing up to 70 pounds" and "[a]ssist in moving packages weighing up to 150 pounds." (Def.'s Br. at Ex. 5.) The description notes that:
B. Decree is Injured in an Automobile Accident
On December 9, 2005, Decree drove to Leisuretown, New Jersey to assist a UPS part-time supervisor who was struggling with her job performance. On her return trip, she was involved in an automobile accident and sustained physical injuries. Shortly after the accident, Decree informed her immediate supervisor, Al Carlino, who allegedly instructed her to file for benefits under her personal liability insurance. Decree did not immediately file for workers' compensation. She attributes this failure to her belief that a manager should not ordinarily file for workers' compensation and the pride she took in the Marlton Center's record of workplace safety. Decree continued to work at UPS until January 18, 2006, during which time she wore her arm in sling.
On January 18, 2006, Decree filed for and received workers' compensation benefits, which were administered by UPS's workers' compensation administrator, Liberty Mutual. As a consequence of filing for workers' compensation, Decree ceased reporting for work. Decree alleges that this prompted Mr. Carlino to angrily inform her that "nobody is going out on worker's comp on my time," and that if she did not report to work the following morning he would come to her home and "drag" her back. (Dep. of Decree at 179:4-5.) Apparently, Mr. Carlino called Plaintiff again later that evening to rescind his threats and to inform her that she would be temporarily replaced, but that the position would be held open for her upon her return.
C. Decree's Leave of Absence
Throughout the duration of Plaintiff's time on workers' compensation, her medical progress was tracked by Liberty Mutual. From time to time, Liberty Mutual would make condensed information regarding Plaintiff's progress available to UPS through an online computer program known as Risk Track. Through Risk Track, UPS's case manager John S. Jordan accessed and reviewed these records. Amongst other things, these records reflect scheduled physician appointments, diagnoses, and projected return dates. Decree's physicians diagnosed her with a full thickness chest tear and brachial plexus irritation. To properly treat her conditions, her physicians delayed shoulder surgery until November 2006.
UPS provides its employees with a Flexible Benefits Plan ("FBP"). The FBP includes income protection coverage of short-term and long-term disability, as well as a return-to-work program. Pursuant to the FBP, any employee who remains on a leave of absence for longer than twelve months is administratively terminated. On December 1, 2006 — as Decree neared the end of the twelve month period — UPS sent her a letter alerting her that UPS had "received notification that you requested a job-related accommodation because of a self-reported physical or mental condition." (Def.'s Br. at Ex. 13.) UPS enclosed forms to be completed by Plaintiff's physician which would enable UPS to assess the possibility of an accommodation. UPS's letter warned that speed was of the essence and that a failure to return the forms within four weeks would be regarded as a withdrawn request. Plaintiff did not send any medical information to UPS pursuant to this request and wrote on the form "I did not request this!!" (
On December 17, 2006, Plaintiff's physician, Dr. Barbara G. Frieman, determined that Plaintiff could return to work on light duty starting January 3, 2007. Dr. Frieman prepared a physician's release for Decree, which read "Kathy can go back to work on January 8th 2007 to Light Duty — limit Lifting, pushing + pulling with Rt. Arm. No Repetitive Reaching and Local Driving only" (the "Release"). The Release did not define "local driving," but Plaintiff testified that her understanding was that local driving meant a distance of roughly twenty miles.
On December 29, 2006, UPS sent another letter to Decree, reiterating its need for medical information to analyze the possibility of accommodations. Nevertheless, Plaintiff did not comply because, as she explained, "I didn't believe myself to be disabled and I wasn't going to be permanently disabled that I could not perform my job." (Dep. of Pl. at 212:9-14.)
D. Decree Attempts to Return to the Job
Upon receipt of the Release, Decree contacted District Nurse Betsy Sullivan to inform her of Decree's desire to return to work. On December 22, 2006, Plaintiff visited the Marlton Center, showed the Release to the new district supervisor, Todd Richards, and informed him that she would be returning to work on January 8, 2007. Mr. Richards responded that he would have to confer with his superiors. On January 3, 2007, Decree called Nurse Sullivan and faxed her the Release. According to Plaintiff, Nurse Sullivan informed her that she could not return to work until she was 100% healed and had spoken to District Human Resources Manager, David Jewell.
Decree spoke with Mr. Jewell several times in the days that followed. In an initial conversation, Mr. Jewell asked Decree to explain the Release, to which Decree responded that she experienced frequent dizziness and was uncomfortable on major highways. Mr. Jewell noted that the limitations on her Release would make performing her job difficult. Plaintiff countered that managers do not perform heavy lifting and that her condition would improve over a short period of time. Plaintiff alerted Mr. Jewell that she was willing to return to any managerial position available. Mr. Jewell indicated that he would speak to Mr. Joe Ellis to ascertain if there was a managerial opening in the industrial engineering department.
On January 17, 2007, Decree again spoke to Mr. Jewell. This time he informed her that he had not spoken to Mr. Ellis, that there were no positions available for Ms. Decree, and that there was nothing he could do to help. UPS terminated Plaintiff the following day upon the expiration of the twelve month leave of absence period.
Summary judgment is appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c);
The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment.
Once the moving party satisfies this initial burden, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). To do so, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to material facts."
In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
A. Compliance with Rules of Civil Procedure
As an initial matter, the Court must address UPS's claim that Decree violated Local Rule of Civil Procedure 56.1 by submitting statements of undisputed facts that contain legal argument, lack citation to the record, and do not set forth facts in separately numbered paragraphs.
Local Rule of Civil Procedure 56.1 provides that:
L. Civ. R. 56.1(a). The purpose of these statements is to prevent the court "from having to drudge through deposition transcripts, expert reports, and lengthy contracts to determine the facts."
In this case, Plaintiff filed two Rule 56.1 statements, entitled "Statement of Core Material Incontrovertible Facts" and "Plaintiff's Counterstatement of Material Facts." The Court agrees with UPS that both contain portions best characterized as legal argument rather than statement of fact. Accordingly, the Court will disregard any legal argument encountered in Plaintiff's Rule 56.1 statements.
B. Disability Discrimination
The LAD prohibits employment discrimination on account of disability.
New Jersey courts have adopted the burden shifting framework for analyzing discrimination claims articulated by the Supreme Court in
Although courts in New Jersey that have analyzed disability discrimination claims pursuant to the LAD have "looked to the federal law as a key source of interpretive authority," New Jersey courts do not apply the
1. Failure to Accommodate Claim
UPS moves for summary judgment on Plaintiff's failure to accommodate claim arguing that Plaintiff can establish none of the elements of her prima facie case. Likewise moving for summary judgment, Plaintiff argues that UPS failed to make reasonable accommodations for her disability as a matter of law.
The LAD imposes a duty upon employers to reasonably accommodate an employee's disability.
To establish a prima facie case for failure to accommodate pursuant to the LAD, a plaintiff must establish that she (1) was disabled; (2) was qualified to perform the essential functions of the job, with or without accommodation, and (3) suffered adverse employment action because of the disability.
At the outset, the Court notes that the parties do not dispute the third element of Plaintiff's prima facie case as Plaintiff was terminated from her employment.
The LAD defines a disability as a "physical disability . . . caused by bodily injury . . . and which shall include, but not be limited to, any degree of . . . lack of physical coordination . . . ." N.J. Stat. Ann. § 10:5-5(q). As many courts have noted, the LAD defines the term disability "more broadly than the ADA's comparable definition."
Here, the full thickness tear in Decree's shoulder and brachial plexus irritation in her arm — both of which required surgery or treatment — surely qualify as bodily injuries causing a degree of lack of physical coordination.
Once an employee requests an accommodation, the LAD imposes a duty upon both the employer and the employee to engage in an interactive process "to assist in the search for appropriate reasonable accommodation."
i. Knowledge of Disability
UPS contends that it did not know that Decree had a disability because the information about her, to which it had access, was insufficient for it to make a good faith determination of whether she was "disabled" for LAD purposes. UPS explains that the only information it possessed regarding Plaintiff's medical status was that contained in the Risk Track progress records, which was limited to "general information about medical events." (Def.'s Br. at 8.)
UPS does not dispute, however, that it had access to and did in fact review Plaintiff's Risk Track records. Nor can it dispute that these records contained reference to the facts that (1) Plaintiff was involved in a vehicle accident; (2) sustained a "full thickness tear" in her shoulder; (3) required surgery for the tear; (4) was diagnosed with brachial plexus irritation in the right arm, and that (5) her doctors recommended that she undergo several procedures before finally having surgery to correct the shoulder tear. Moreover, UPS does not dispute that it sent Plaintiff a letter on December 1, 2006 requesting medical documentation so that UPS could analyze Plaintiff's alleged request for a "job-related accommodation because of a self-reported physical or mental condition." (Def.'s Ex. 11.) Nor does UPS dispute that, before it terminated Decree, she furnished it with a note from her physician releasing her to work with certain limitations with respect to driving and lifting. Finally, UPS does not dispute that, shortly after faxing the Release to UPS, Plaintiff asked to be allowed to return to work subject to those limitations. On the basis of these facts, a reasonable jury could conclude that UPS knew that Decree suffered from a disability within the LAD's broad definition.
ii. Request for Assistance or Accommodation
UPS claims that Plaintiff never requested assistance or accommodation for her disability. To support this assertion, UPS points to Plaintiff's failure to comply with UPS's request for medical documentation and to the fact that Plaintiff admits that she never requested UPS to send her its form accommodation paperwork because she did not believe she was permanently disabled. Plaintiff counters that her failure to respond to the request for paperwork, as well as her insistence that she did not need accommodations, stemmed from a sincere fear that UPS was trying to railroad her into forfeiting her rights under the LAD. According to Plaintiff, UPS was essentially insisting that she document her medical condition at a time when her medical condition was in transition, and that such documentation would not reflect Plaintiff's capabilities after she had time to reasonably recover from her recent surgery.
In making a request for assistance or accommodation, "[t]he law does not require any formal mechanism or `magic words.'"
Here, UPS does not dispute that, before Plaintiff was terminated, she submitted the Release, which documented her limitations, and that Plaintiff requested to be permitted to return to work in any capacity consistent with her limitations and experience. Thus, the Court notes that the parties do not really dispute the issue of whether a request was made. Rather, the parties arguments here go to the more substantial issue in this case of whether Plaintiff can establish that UPS failed to engage in the search for reasonable accommodations in good faith, an issue to which the Court now turns.
iii. Good Faith Assistance
At the heart of the respective motions for summary judgment are the parties claims that the other did not participate in the search for a reasonable accommodation in good faith.
Once an employee makes a request for an accommodation, the employer and employee must engage in a flexible, informal interactive process to determine the possibility of accommodation.
Good faith is essential to the accommodation process envisioned by the LAD. Accordingly, both the employer and the employee share the duty to participate in the interactive process in good faith.
UPS contends that Decree is responsible for the breakdown in the interactive process because she ignored UPS's letters requesting medical records and authorization. UPS explains that it acted in good faith by identifying her as a person who might require accommodations and by sending her the letter request. UPS also relies on the fact that it followed-up with Decree in regard to the Release by way of several telephone conversations between Mr. Jewell and Decree that transpired after Plaintiff's failure to respond and prior to her termination.
On the other hand, Decree lays blame for the breakdown squarely at the feet of UPS. Although she did not use UPS's forms or immediately respond to their requests for medical information, Decree insists that she attempted to meet UPS halfway. Plaintiff points to the fact that she submitted the Release to UPS and contacted numerous UPS managerial and human resources personnel, including Mr. Jewell and Nurse Sullivan, prior to her termination in an attempt to gain authorization to return to work in her previous position with the enumerated limitations. Plaintiff also points to the fact that she told Mr. Jewell that she was amenable to resuming her employment in any available managerial capacity, that Mr. Jewell agreed to inquire with Mr. Ellis about an opening in engineering, and that Mr. Jewell never did so. In essence, Plaintiff argues that UPS refused her accommodation request because she chose to initiate the interactive process at a time, and in a manner, inconsistent with the particular procedures UPS itself developed to effect compliance with the LAD.
In their respective motions for summary judgment, both parties ask this court to decide, as a matter of law, that they participated in the interactive process in good faith. UPS attempts to do so by analogizing to the case of
The Court notes that Sturm is not the only decision of a court in this District to address the issue of whether an employee's failure to timely respond to an employer's reasonable request for medical information constitutes bad faith as a matter of law. In
The court denied the employer summary judgment on the employee's failure to accommodate claim under the circumstances, citing the "difficulties inherent in definitively concluding that one party was completely blameless" during the course of a lengthy interactive process.
It is true that Decree did not respond to UPS's request for medical information and authorization by completing and returning the UPS forms. In that respect, this case is similar to
The Court notes that, on a motion for summary judgment, the moving party must clear a high hurdle to establish good faith as a matter of law. Indeed, it is well settled that "summary judgment should not ordinarily be granted when the action entails a determination of a state of mind such as bad faith."
iv. Possibility for Reasonable Accommodation
UPS argues that, even if it acted in bad faith, Plaintiff's reasonable accommodation claim must fail because Plaintiff cannot establish that a reasonable accommodation was possible.
It is well settled that the LAD does not require an employer to provide accommodations "where it can reasonably be determined that an . . . employee . . . cannot perform the essential function of the job even with reasonable accommodation."
Arguing that Plaintiff could not perform the essential functions of her job, UPS points to a UPS-created document that lists various functions and sub-functions considered by UPS to constitute the essential job functions of "Operations Supervisors/Managers." Among the seventeen primary functions listed are (1) "[m]ust be able to travel by car and plane to attend meetings at other locations and call on non-UPS locations and customers"; and (2) "[l]ift, lower, push, pull, leverage, and manipulate equipment and/or packages weighing up to 70 pounds." (Def.'s Ex 5.) UPS further notes that Decree admitted in her deposition that she could not lift seventy pounds and that her driving was limited to local driving, which Plaintiff self-defined as within twenty miles. UPS also points to post-termination medical documentation that indicates that Plaintiff's doctors thought her "target date for full recovery" was "never," and that they recommended "no work" for Plaintiff.
Plaintiff takes issue with UPS's definition of the essential functions of her job. Relying on her actual experience as a manager at UPS for nine years, Plaintiff insists that managers are rarely required to lift packages; rather, that function is reserved for supervisors and other employees subordinate to her. Although driving is certainly required, more than local driving is not an essential manager function because it is not required on a regular basis and because managers often car-pool to particularly distant locations.
The Court concludes that there exists a genuine dispute on the issue of whether Plaintiff could conduct the essential functions of her job. Although courts rightly look to the employer's written job descriptions to determine a job's essential functions, "[t]he actual work experience of incumbents in the position, including the plaintiff if applicable, is also probative."
Plaintiff's admission that driving constituted a significant part of her job — sometimes requiring her to travel several hundred miles in a day — does come closer to establishing that non-local driving was an essential element of her job. Plaintiff does not admit, however, that non-local driving was regularly required. Given the fact that the frequency with which an employee is required to perform a given employment function is one factor in the essential functions analysis, it is not totally clear to the Court whether the driving Plaintiff was unable to do was, in fact, essential.
Even if non-local driving was essential, the fact that she performed her job for over a month after the accident and before she went on disability supports a reasonable inference that she was capable of doing it one year later at the time of her termination and after corrective surgery.
In light of the foregoing analysis, the Court finds that both parties have satisfied their burdens of production. Plaintiff's prima facie case is satisfied because her evidence supports a reasonable conclusion that UPS did not participate in the interactive process in good faith, which in turn supports the conclusion that Plaintiff was qualified to perform the essential functions of her job with or without reasonable accommodations.
At the same time, Plaintiff has failed to show that UPS's behavior constituted bad faith per se or that she was able to perform the essential functions of the job as a matter of law. Thus, the Court will deny her cross-motion for summary judgment as well.
2. Disparate Treatment Claim
In analyzing a claim for discrimination on the basis of a perceived disability under the LAD, courts use an identical process to that of the ADA.
i. Plaintiff's Prima Facie Case
To establish a prima facie case of discriminatory discharge on the basis of disability, a plaintiff must show that "(1) [s]he is disabled or perceived to have a disability; (2) [s]he was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation by the employer; (3) [s]he was fired; and (4) the employer sought someone else to perform the same work.
Plaintiff alleges only that UPS perceived her as having a disability. In order to show that one is "perceived to have" a disability, one must show that the employer "entertain[ed] misperceptions about the individual, either believing that the individual has a substantially limiting impairment that he or she does not have or that the individual has a substantially limiting impairment when, in fact, the impairment is not as limiting as the employer believes."
In this case, Plaintiff has completely failed to come forward with any evidence that UPS misperceived the existence, severity, or nature of her impairment. In fact, the record is clear that UPS's perception of Plaintiff's physical condition was at all times consistent with Plaintiff's self-description. To be sure, Plaintiff's self-description has changed over time, but Plaintiff has pointed to no evidence that UPS's perception of her physical condition did not change just as quickly. Thus, the Court finds that Plaintiff has not made out her prima facie case because she does not point to evidence from which a reasonable jury could infer that UPS perceived her as disabled within the meaning of the LAD. Accordingly, the Court will grant UPS's motion for summary judgment on Plaintiff's disparate treatment claim and deny Plaintiff's cross-motion.
C. Sex Discrimination
Courts use an identical process for analyzing gender discrimination claims brought pursuant to Title VII and the LAD.
1. Plaintiff's Prima Facie Case
In order to set forth a prima facie case of discrimination, a plaintiff must meet a four-factor test. In this case, Plaintiff must show that: "(1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position; and (4) action occurred under circumstances giving rise to an inference of discrimination."
The parties do not dispute that Plaintiff makes out the first two prongs of her prima facie case as Decree is female and was terminated. Moreover, in light of this Court's conclusion that Plaintiff may have been qualified to perform the essential functions of her employment, the Court finds that Plaintiff has satisfied her burden of showing, for purposes of this motion, that she remained qualified. To establish the final element of her prima facie case, Plaintiff alleges several specific instances where male employees at the Marlton Center, who were out of work on disability leave, were returned to their former positions with appropriate accommodations; whereas, Plaintiff was not accommodated and not allowed to return. Such assertions are sufficient to meet the final prong of the prima facie analysis.
2. UPS's Legitimate, Nondiscriminatory Reasons for Plaintiff's Termination
Because Plaintiff has satisfied the first stage of the
UPS asserts that Plaintiff was administratively terminated pursuant to a UPS policy providing for administrative terminations of employees whose employment leaves exceed twelve months and because Plaintiff did not comply with UPS's procedures for requesting accommodation. As most, if not all, of Plaintiff's arguments center around the question of pretext, it appears that Plaintiff does not challenge UPS's ability to meet their burden under this step. The Court therefore finds that UPS has met its burden to produce evidence to show that it had a legitimate, nondiscriminatory reason for terminating Plaintiff.
3. Plaintiff's Burden of Showing Pretext
Having reached the final stage of the
Applying this test, a court is ordinarily faced with the difficulty of determining the extent to which a plaintiff must discredit a defendant's proffered reasons. Although the test is somewhat ambiguous, the Third Circuit has defined it as requiring that "the non-moving plaintiff. . . demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder
To show pretext, Plaintiff again offers the names of disabled male employees who were accommodated and allowed to return to work. UPS counters with the testimony of Barbara Goherty, UPS's Metro Philadelphia Employee Relations Manager that, unlike Decree, each of the identified male employees engaged in the UPS accommodation process. Ms. Goherty also testified that, unlike Plaintiff, none of the identified male employees were on leave for more than six months; two returned in less than three. Finally, Ms. Goherty testified that, in the past three years, UPS has terminated eleven other management level employees for remaining on leave in excess of twelve months; five employees were male and six were female.
At the pretext stage, Plaintiff has the burden of proving that "similarly situated persons were treated differently."
Plaintiff alleges that she was terminated in retaliation for filing a workers' compensation claim. To establish a prima facie case of retaliation, a plaintiff must show that she (1) made a claim for workers' compensation benefits; (2) suffered adverse employment action; and that (3) a causal connection existed between the employee's protected activity and the employer's decision to take adverse action.
The first two prongs of Plaintiff's prima facie case are not in dispute. The question before the Court is whether Plaintiff can show that her termination was caused by UPS's intent to punish her for making a workers' compensation claim.
By her own admission, Plaintiff "cannot point to any direct statement, nor to temporal proximity between the corporate dissatisfaction with a manager filing a Workers' Compensation claim and [Plaintiff's] termination."
The Court finds that a jury could not reasonably infer the requisite causal connection from the evidence proffered by Plaintiff on this point. First, no jury could reasonably infer that UPS intended to retaliate against Plaintiff on the basis of the isolated remarks of a supervisor who was subsequently transferred out of Plaintiff's chain of command and who played no role in Plaintiff's ultimate termination, which occurred over a year after Plaintiff's accident. Second, although Plaintiff urges this Court to find a reasonable inference of causation from the alleged fact that Mr. Carlino "required" Plaintiff to delay filing for workers' compensation, Plaintiff's own testimony belies such an inference. When pressed to explain why she delayed filing for workers' compensation, Plaintiff admits that she did not file because she wanted to preserve the Marlton Center's impeccable safety record and because she felt that the filing of workers' compensation claims was beneath her station as a manager. Thus, Plaintiff's own description of her reasons is not consistent with antagonism. Finally, the Court is at a loss to explain how Plaintiff's remaining evidence on this point would support the inference of causation. At bottom, Plaintiff's belief that she was the subject of retaliation seems to rest solely on her contention that "people do not act for no reason at all." (
Accordingly, the Court will grant Defendant's motion for summary judgment as to Plaintiff's retaliation claim.
E. Breach of Employment Contract
New Jersey law construes certain employment policies articulated in widely-distributed employment manuals as creating enforceable contracts between employer and employee.
Plaintiff's breach of contract claim is predicated upon an "oral, but well known policy at UPS that managerial employees are provided job protection during an absence of twelve months following illness or injury." (Pl.'s Br. at.8.) As evidence of the oral policy, Decree points to a provision of the FBP entitled "Your Employment Status," which provides, in pertinent part, "[i]f you are absent from your regular occupation for twelve months, you will be administratively separated from employment, regardless of your status on [short term or long term disability]." (
As the Appellate Division observed in
Here, neither party seems to dispute that Plaintiff believed UPS adhered to a policy of holding positions open for employees on extended leave. Thus, the Court must look to see if Plaintiff has come forward with evidence that could support the reasonableness of that belief. Here, Plaintiff has failed to do so. First, the plain language of the FBP does not expressly grant employees the right to take twelve months of leave; it simply indicates what actions UPS will take, as a matter of course, after an employee has been on leave for twelve months. Second, UPS records do not indicate that it held open the positions of Mr. Motiel and Mr. Lubas for the full twelve months. In fact, those records indicate that Mr. Motiel returned from leave in approximately three months and that Mr. Lubas did so in approximately six. Although Plaintiff alleges that Mr. Carlino promised to keep her job open, she does not point to any evidence that he made the comment in the context of expressing an unwritten company policy. Also, Plaintiff admits that Mr. Carlino did not make any promises to her at any point after the four month mark of her leave and that the supervisor who replaced Mr. Carlino never repeated any of Mr. Carlino's promises.
In light of these facts, Plaintiff's evidence does not support the inference that UPS maintained an oral policy of holding jobs open for the entire twelve month period. As UPS explains in its papers, the longer the term of the employee's leave of absence, the greater the company's need is to find long-term replacements. From Plaintiff's evidence, a jury might reasonably conclude that UPS had an unwritten company policy of holding positions open temporarily. Such a conclusion is supported by the FBP read in light of Mr. Carlino's promises and is corroborated by the experience of Mr. Motiel and Mr. Lubas. But, this is as far as Plaintiff's evidence reasonably goes.
This statement does not estopp Plaintiff from claiming, as she does here, that she was able to perform the essential functions of her job at the time of her termination with reasonable accommodation. Plaintiff's sworn statement appears to stand for the proposition that she was unable to work without an accommodation. Such a statement does not necessarily contradict her contentions before this Court that she could have worked with an accommodation.