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(NOTE: The status of this decision is Unpublished.) Original WP 5.1 Version

This case can also be found at 339 N.J. Super. 412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4035-99T5 JAMES W. JONES AND MARGIE JONES, HIS WIFE, Plaintiffs-Appellants, v. ALUMINUM SHAPES, INC. & FRANK WIMMERSBERGER, Defendants-Respondents, _________________________________ Submitted March 5, 2001 - Decided April 23, 2001 Before Judges Braithwaite, Wells and Landau. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, GLO-L-175-98. S. Robert Freidel, Jr., attorney for appellants. Stevens & Lee, attorneys for respondents (Paul R. Lewis, of counsel; Michael J. Fagan on the brief). The opinion of the Court was delivered by WELLS, J.A.D. Plaintiffs, James and Margie Jones, appeal from the grant of a motion for summary judgment which dismissed Law Against Discrimination (LAD) claims brought following James Jones' termination from employment at Aluminum Shapes, Inc. In the same order the motion judge also dismissed the complaint as to the individual defendant Frank Wimmersberger, the Human Resources Director of Aluminum Shapes and the claims of intentional infliction of emotional distress.See footnote 11 We recite the facts from the deposition testimony and certifications presented to the motion judge which are most favorable to the Joneses. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). James Jones was employed by defendant employer Aluminum Shapes without incident from 1966 to 1990. He worked in Aluminum Shapes' products fabrication plant as a crane operator, a union position covered under the employer's collective bargaining
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agreement with the Industrial Workers Union, Local No. 837, a Teamsters affiliate. In 1990, Jones was injured on the job, when a steel band snapped, somehow got under Jones' safety glasses, and almost completely removed his right eye. When the accident occurred, Jones was immediately sent to a local hospital, and then transferred to Wills Eye Hospital in Philadelphia, where he underwent several surgeries over a five-day period, in an attempt to save the sight in his right eye. Jones did not fully recover from the accident. According to a neuropsychiatrist's 1991 evaluation, made over a year after the accident, he was still in continual distress because of the condition of his right eye. Physiologically, the eye itself was in rather terrible shape. It constantly teared, especially in the presence of fumes, dust or pollution. Jones was photophobic and could no longer drive. Jones' vision in the injured eye was almost nonexistent, and he also suffered from cosmetic defects of his eyelid. According to the examiner, Jones also experienced post- traumatic stress disorder as a result of the injury, displaying tension and anxiety, as well as phobias of bright light, pollution, and crowds, who he feared would stare at his disfigurement. Jones presently reports ongoing psychological difficulties as a result of the injury, including lack of sexual interest and difficulty sleeping. Between 1990 and 1993, Jones could not work as a result of the injury and its attendant pain, and was supported through workers' compensation. In that time period, he underwent several largely unsuccessful surgeries in an attempt to regain his sight. By March 1993, Jones felt that he was ready to return to work. In April, Jones' doctor, Dr. Altman, sent a letter to Aluminum Shapes' insurance company, asserting that Jones no longer had binocular vision, and therefore was not qualified for the position of crane operator. Dr. Altman did, however, approve a modified job description offered by Aluminum Shapes, in which Jones would work in the quality control department, a more sedentary clerical position. Jones could not immediately return to work after being approved for the clerical position, due to another operation on the affected eye. By the fall of 1993, when Jones had recovered from surgery and could return to work, Wimmersberger informed him that the quality control job no longer existed, and instead offered Jones a position as a machine operator in the plant's fabrication department, with Jones' preference of shift. According to Jones' deposition testimony, Wimmersberger also discussed with the Jones the possibility of a job in shipping/packing. (Wimmersberger testified in his deposition that he may have also discussed with Jones a position in the extruding department). Jones testified that he was unhappy with these alternatives. He did not wish to have a job in shipping/packing because of the lifting requirements. He also was afraid to take the machine operator position because he felt it was too dangerous for a person with his limited vision. According to Jones, "I didn't want to run that punch press. As I stated before, I seen people with 20-20 vision lose their fingers. I've took [sic] them to the hospital." Jones suggested to Wimmersberger that he be permitted to return to a crane job, either as an operator or a helper. However, Jones testified that he was informed that he could not go back to a crane job because of safety regulations. Eventually, plant management agreed to make a special job for Jones in the quality control department, where Jones began working in January 1994. Jones' new job originally entailed traveling around the plant collecting product samples for quality control testing, and then notching each sample with a router. However, after Jones submitted a doctor's report, he was no longer required to use the router. Jones was still paid his higher crane operator's salary, and retained his union membership and benefits while he held this job. Jones testified that he understood that employees with union jobs were often placed in the quality control department when they were injured, until they were sufficiently recovered to return to their union jobs. From January 1994 until late 1995, Jones worked uneventfully in the quality control position. In 1995, a human resources employee spoke to Jones about the possibility of returning to a regular union job. Once again, Aluminum Shapes offered Jones positions in either shipping/packing or in the fabrication department. Jones approached Wimmersberger about the situation, informing him that he did not wish to perform either job, because he did not want a job involving bending or lifting, nor did he feel safe operating a punch press in the fabrication department. According to Jones, Wimmersberger asked for a doctor's report verifying that Jones was unable to perform in either position. In December 1995, Jones produced a letter from his eye doctor, Dr. Naidoff, verifying that Jones should not be around machine tools because his vision was too poor to operate such machines safely. The letter also noted that bending or heavy lifting put a strain on Jones' eye. Once the doctor's report was received, Jones was allowed to remain in the quality control position for another year. In early October 1996, Jones was transferred out of quality control, and back to a regular union job in the extrusion
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department in the position known as "tail stretcher."See footnote 22 Aluminum Shapes' stated reason for the transfer, articulated through a letter written by Wimmersberger, was that the plant was experiencing a downsizing, and for that reason, "it was necessary to move Mr. Jones back into a union job. We made this selection based on the company's needs and with Mr. Jones' physical limitations in mind." The letter noted that Jones had been given time to consult with his physician and attorney before reporting, and also noted that the transfer would not affect Jones' pay rate or shift. Jones approached Wimmersberger regarding his objections to the impending transfer. Jones felt that, as a tail stretcher, he would still be too close to dangerous machinery and fumes, despite the fact that the job did not require him to actually operate dangerous machinery. According to Jones, Wimmersberger mentioned the plant downsizing, and asserted that the extrusion department job was the only one available for him. He suggested that Jones discuss the matter with his own lawyer if he objected to the transfer. Jones also asserts that, around this time, Wimmersberger stated to him that "[T]he free ride is over." According to Jones' testimony, at this point Wimmersberger also suggested that, if Jones could think of any job that he actually could do, even if it required accommodation, that Aluminum Shapes would "see what they could do." Jones admitted that he never suggested any such job. Later that month, on October 23, 1996, Wimmersberger again met with Jones and offered, as a compromise, to leave him in the quality control department. When Jones pointed out that, due to his accident, he had sleeping problems, Wimmersberger agreed to allow him to remain on the same later shift on which he had been working, instead of requiring that he report earlier. Jones agreed to the idea. Then, according to Jones, Wimmersberger and another supervisor left the room. Wimmersberger returned shortly thereafter, and stated that, in order to remain in quality control, Jones would have to take the job as a nonunion position, thus forfeiting his union benefits. Wimmersberger testified that the reason for keeping the position nonunion was not financial; rather, the management felt that the position, which entailed acting as a "watchdog" over union members, would probably best be filled by someone not affiliated with the union. Additionally, Wimmersberger stated that management simply did not want to expand the bargaining unit further. Jones offered no evidence at all that this reason was in any way pretextual. Jones absolutely refused to take a nonunion job. Stated plaintiff, "I said no, I'm not going to do that. And I described why, and the benefits I would be losing, as I stated before, my insurance, my dental, my raises that I'm getting every year due to the contract, and things like that, my insurance." Jones did admit, however, that he still retains medical insurance through his wife's policy, but contends that the coverage is more expensive and less comprehensive. When Jones was asked during his deposition if there had been any union jobs at the plant that he could have physically performed, he responded that there was only one; a job as a driver, which was already filled. We initially review the principles of law which must be applied to the stated facts. LAD prohibits discrimination against individuals on the basis of race, creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, nationality or handicap. N.J.S.A. 10:5-4.1 prohibits "any unlawful discrimination against any person because such person is or has been at any time handicapped or any unlawful employment practice against such person, unless the nature and extent of the handicap reasonably precludes the performance of the particular employment." The New Jersey Administrative Code (Code)further defines the role of an employer in ensuring that a disabled person is disadvantaged in the workplace as little as possible. This responsibility on the part of the employer is known as the responsibility of "reasonable accommodation." N.J.A.C. 13:13-2.5 states, (a) All employers shall conduct their employment procedures in such a manner as to assure that all people with disabilities are given equal consideration with people who do not have disabilities for all aspects of employment including, but not limited to, hiring, promotion, tenure, training, assignment, transfers, and leaves on the basis of their qualifications and abilities. Each individual's ability to perform a particular job must be assessed on an individual basis. (b) An employer must make a reasonable accommodation to the limitations of an employee or applicant who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The determination as to whether an employer has failed to make reasonable accommodation will be made on a case-by-case basis. 1. Under circumstances where such accommodation will not impose an undue hardship on the operation of an employer's business, examples of reasonable accommodation may include:

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i. Making facilities used by employees readily accessible and usable by people with disabilities; ii. Job restructuring, part-time or modified work schedules;

iii. Acquisition or modification of equipment or devices; and iv. Job reassignment and other similar actions. 2. An employer shall consider the possibility of reasonable accommodation before firing, demoting or refusing to hire or promote a person with a disability on the grounds that his or her disability precludes job performance. 3. In determining whether an accommodation would impose undue hardship on the operation of an employer's business, factors to be considered include: i. The overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget; ii. The type of the employer's operations, including the composition and structure of the employer's workforce; iii. The nature and cost of the accommodation needed; and iv. The extent to which accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement. It is well-settled law in New Jersey that our state courts, in interpreting LAD, should look to federal antidiscrimination cases "as a key source of interpretive authority." Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 97 (1990). Applying these principles and federal precedent, the motion judge recognized that a "reasonable accommodation" for the disabled employee requires a so-called "interactive process," in which both employer and employee bear responsibility for communicating with one another to "identify the precise limitations resulting from the disability and potential reasonable accommodation that could overcome those limitations." Smith v. Midland Brake, 180 F.3d 1154, 1171 (10th Cir. 1999), quoting 29 C.F.R.

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