NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0156-23
PAULA GUZINSKY,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT OF HUMAN SERVICES,
Defendant-Respondent. __________________________
Submitted February 10, 2025 – Decided April 10, 2025
Before Judges Gummer, Berdote Byrne and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1367-20.
Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, PC, attorneys for appellant (Drake P. Bearden, Jr., on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Eric Intriago, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff Paula Guzinksy appeals from a June 7, 2023 order granting the
motion of defendant New Jersey Department of Human Services ("DHS") for
summary judgment and a September 18, 2023 order denying plaintiff's motion
for reconsideration. After plaintiff filed a complaint pursuant to the New Jersey
Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -50, alleging disability
discrimination, perception-of-disability discrimination, retaliation, and failure
to accommodate, her former employer, DHS, moved for summary judgment,
which the court granted. On appeal, plaintiff argues the trial court erred in
applying the doctrine of judicial estoppel to find she was precluded from
pursuing her LAD claim because she had previously stated she was completely
disabled in her application for Social Security Disability Insurance ("SSDI").
Additionally, plaintiff contends the trial court erroneously applied the summary-
judgment standard and erred in granting defendant's motion.
Plaintiff failed to establish a prima facie case of disability discrimination,
and the trial court did not err in granting defendant's motion for summary
judgment or in denying plaintiff's motion for reconsideration. We affirm.
A-0156-23 2 I.
We glean the following facts from the summary-judgment record,
"view[ing] the evidence in the light most favorable to the non-moving party."
Comprehensive Neurosurgical, PC v. Valley Hosp., 257 N.J. 33, 71 (2024)
(alteration in original) (quoting Qian v. Toll Bros., Inc., 223 N.J. 124, 134
(2015)).
In 2011, plaintiff started working as a Human Services Assistant ("HSA")
at the Woodbine Development Center of New Jersey ("WDC"), a DHS-operated
facility that provides daily living assistance to adults with developmental
disabilities. WDC housed the residents it served in "cottages" based on their
disability levels and needs. HSAs, such as plaintiff, were assigned to work in
the cottages and assist WDC's residents in their activities of daily living.
According to plaintiff, her responsibilities as an HSA "included assisting
consumers within an assigned cottage with their meals, in attending programs,
assisting with laundry, and maintaining [residents'] daily schedules." When her
employment with defendant ended, plaintiff was assigned to a cottage housing
for residents who did not need wheelchairs and who were "quite self-sufficient."
In July 2017, plaintiff started experiencing back pain, sought medical care,
and was advised she would require surgical intervention. She worked without
A-0156-23 3 any restrictions until November 2018, when she underwent a surgical procedure
to alleviate her back pain and took medical leave as a result. On February 26,
2019, plaintiff was cleared by her doctor to return to "modified work duty." One
day later, on February 27, 2019, plaintiff provided a "work status" note to
WDC's human resources, which included her doctor's release for her to work
"with the restrictions of not lifting, pulling, or pushing more than ten pounds."
Plaintiff claims she provided the note to WDC and was told to return on March
1, 2019. According to plaintiff, she returned to work in her assigned cottage on
her scheduled return-to-work date and worked from approximately 7:00 a.m. to
1:00 p.m. without incident. That day she was called into her supervisor's office
and informed there was no "light duty" available, and she would have to leave.
On March 14, 2019, plaintiff's doctor provided her with a note indicating
that she may return to work with modified duties, including no lifting, pushing,
or pulling greater than ten pounds pending a Functional Capacity Examination
("FCE"). On March 26, 2019, plaintiff underwent an FCE, which evaluated her
ability to lift, push, and pull, and offered recommendations. The report issued
following plaintiff's FCE stated she demonstrated ability for "medium category
work (occasional lift and work up to [fifty pounds])." The report further
indicated plaintiff "demonstrates ability for administrative duties, monitoring
A-0156-23 4 consumer vital information/behavior, maneuvering loaded wheelchairs, light
housekeeping duties (including folding/putting away laundry), participating
with meal delivery/collection, reporting health/maintenance issues, handling
loads up to [fifty pounds], etc." In a progress note dated April 4, 2019, plaintiff's
doctor indicated he had reviewed plaintiff's FCE results and accordingly
recommended a fifty-pound lift restriction.
On April 10, 2019, plaintiff filed a request for reasonable accommodation
form with WDC, requesting she not be required to lift, push, or pull greater than
fifty pounds. On the same day, plaintiff met with the Americans with
Disabilities Act1 ("ADA") coordinator at WDC. The coordinator noted she had
asked plaintiff about other skills and plaintiff told her she had previously worked
in an office. She informed plaintiff there were no clerical vacancies at WDC at
that time. The coordinator also recorded that she had emailed other supervisors
at WDC and various DHS facilities, inquiring about HSA vacancies that could
accommodate plaintiff's restrictions. The ADA coordinator was notified there
were no vacant positions in or out of a cottage that could accommodate plaintiff's
restrictions. A week later, she followed up with the other DHS facilities;
however, none of them were able to accommodate the request.
1 42 U.S.C. §§ 12101-12213. A-0156-23 5 On April 16, 2019, plaintiff applied for long-term disability benefits
through Prudential, defendant's third-party, long-term disability insurer. When
asked what prevented plaintiff from returning to work, she responded she was
not able to lift more than fifty pounds. During this interview with Prudential,
plaintiff indicated her employer had informed her it was not able to
accommodate her restriction and had directed her to file a long-term disability
claim. When asked if she had plans to return to work, plaintiff stated, "no, my
employer cannot accommodate."
On May 2, 2019, plaintiff received a letter from the ADA coordinator
stating that, as an HSA, "lifting is considered an essential function of [the] job";
plaintiff may be "require[d] . . . to lift more than fifty pounds on a frequent
basis"; and "reduction of the lifting requirement would require job restructuring
and/or modification to include the removal of that essential function." The letter
explained the ADA does not require an employer to remove an essential function
as a reasonable accommodation and denied plaintiff's request for an
accommodation. Further, the letter stated that because DHS was unable to
approve plaintiff's request for accommodation, her options were to retire or
resign. She was advised that if she did not exercise either of those options , she
would be terminated from her position. On May 31, 2019, plaintiff's long-term
A-0156-23 6 disability claim was approved by Prudential and on June 12, 2019, plaintiff
resigned, effective immediately.
On December 5, 2019, plaintiff received a letter from the Social Security
Administration ("SSA") reflecting a phone call that had occurred on June 24,
2019, when plaintiff had applied for SSDI. The summary of the call reflected
plaintiff's statements that she "became unable to work because of [her] disabling
condition on November 9, 2018" and she was "still disabled."
Plaintiff was advised she was being denied SSDI because, based on a
review of her health problems, she did not qualify for benefits. Plaintiff filed a
request for reconsideration of SSA's denial, stating she disagreed because she
remained totally disabled due to her back condition. After she received SSA's
second denial of her claim, plaintiff requested a hearing before an administrative
law judge to review it. On June 17, 2021, plaintiff received a letter informing
her she would start receiving SSDI and subsequently began receiving benefits.
Plaintiff then filed a complaint on July 31, 2020, in which she alleged
"disability discrimination, perception of disability discrimination, retaliation,
and failure to accommodate" based on the LAD. In response, defendant filed an
answer in which it denied plaintiff's disability was a determinative or motivating
factor in the decision to terminate plaintiff and all other allegations.
A-0156-23 7 During her deposition, plaintiff confirmed the job duties within the New
Jersey Department of Human Services Job Demands and Medical Capabilities
Form (the "Form") accurately reflected her duties as an HSA. The Form
specified that essential job functions included: "pushing and pulling
wheelchairs weighing up to 300 pounds; transferring consumers weighing up to
300 pounds; squatting, kneeling, and maneuvering consumers up to 300 pounds
to dress them; repositioning consumers who weigh up to 300 pounds; carry[ing]
activity items to tables lifting weights up to ten pounds; and assisting in the
toileting of [residents] weighing up to 300 pounds."
Pursuant to Rule 4:46-2, defendant moved for summary judgment at the
conclusion of discovery, arguing the LAD does not require an employer to waive
an essential function of a job in order to accommodate an employee's disability.
Defendant also accused plaintiff of claiming in one instance she could have
continued to work with an accommodation, while representing in another
instance she was unable to work in any capacity for the purposes of securing
disability benefits. Defendant relied on the fact plaintiff had failed to
demonstrate there was any reasonable accommodation available to her, and she
did not seek replacement employment elsewhere. Defendant also claimed
plaintiff could not show evidence of DHS having acted with a discriminatory
A-0156-23 8 motive and could not show that she was terminated from her position. Based on
these uncontroverted facts, defendant claimed no genuine issue of material fact
existed and it was entitled to summary judgment.
In opposition, plaintiff maintained she could have continued to work if the
requested accommodations had been made, and at the time of her
accommodation request, she was assigned to a cottage where she was not
required to lift, push, or pull anything greater than fifty pounds. Plaintiff also
denied defendant's statement that lifting, pushing, and pulling over fifty pounds
was a requirement of her job and disputed she had sought a waiver of an essential
job function.
The trial court granted defendant's motion for summary judgment and
dismissed plaintiff's complaint with prejudice. It found plaintiff had failed to
demonstrate a prima facie case of disability discrimination and her position was
undermined by the insurance and SSDI coverage claims she submitted prior to
initiating the complaint, as well as her sworn statements at her deposition. It
noted plaintiff had indicated she was "unable to perform any job duties" in her
April 16, 2019 application to Prudential, and she was "totally disabled" in her
December 5, 2019 SSDI application. The trial court concluded plaintiff was
judicially estopped from claiming she was able to perform all essential functions
A-0156-23 9 of her job due to her certification in her application for SSDI benefits . It found
"[a]s to the SSDI filings . . . applying judicial estoppel is appropriate"; however,
it did not apply the doctrine to the Prudential application because those
statements were made in a nonjudicial setting. Finally, the trial court ruled
plaintiff had failed to reconcile these inconsistencies throughout the course of
discovery and disagreed it was for the jury to decide whether she was capable
of working.
On June 26, 2023, plaintiff moved for reconsideration of the June 7, 2023
order granting summary judgment, arguing she was not estopped from
proceeding with her LAD claim because she had applied for and received SSDI.
The trial court denied the motion, finding the basis of this complaint came down
to whether or not the plaintiff ha[d] adequately presented an explanation to counter the discrepancy of what she [had] represented to the [SSA] asserting total disability, and whether or not any explanation is sufficient to warrant a reasonable juror concluding that, assuming the truth of the plaintiff's good faith belief in the earlier statement claims she can perform functions of her job with or without reasonable accommodation.
The trial court concluded plaintiff had attempted to have it both ways and a
reasonable juror could not conclude plaintiff was able to perform the essential
A-0156-23 10 functions of her job with and without a reasonable accommodation. This appeal
followed.
II.
We review a trial court's grant of a motion for summary judgment de novo
and apply "the same standard used by the trial court." Arias v. County of
Bergen, 479 N.J. Super. 268, 275 (App. Div. 2024) (quoting Samolyk v. Berthe,
251 N.J. 73, 78 (2022)). Pursuant to Rule 4:46-2(c), a motion for summary
judgment shall be granted if "the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits . . . show that
there is no genuine issue as to any material fact challenged and that the moving
party is entitled to a judgment or order as a matter of law." We review a trial
court's order on a reconsideration motion under an abuse-of-discretion standard.
Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).
Because plaintiff does not raise her perception-of-disability
discrimination, retaliation, or failure to accommodate claims before us, we focus
solely on the issue raised on appeal: her disability-discrimination claim. See
Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973).
A-0156-23 11 "Discrimination based on an employee's disability, or perceived disability,
is illegal under the LAD." Guzman v. M. Teixeira Int'l, Inc., 476 N.J. Super.
64, 70 (App. Div. 2023); see also N.J.S.A. 10:5-4. To state a prima facie case
for disability discrimination pursuant to the LAD, plaintiff must show: (1) she
was "disabled within the meaning of the LAD"; (2) "she was actually performing
her job, or was able, with or without reasonable accommodation, to perform her
job at a level that met [the employer's] legitimate expectations"; (3) she "was
discharged"; and (4) her employer "sought someone else to perform the same
work after she left." Grande v. Saint Claire's Health Sys., 230 N.J. 1, 24 (2017);
see also Smith v. Millville Rescue Squad, 225 N.J. 373, 395 (2016) (describing
the elements of a prima facie disability discrimination claim as "(1) that plaintiff
is in a protected class; (2) that plaintiff was otherwise qualified and performing
the essential functions of the job; (3) that plaintiff was terminated; and (4) that
the employer thereafter sought similarly qualified individuals for that job"
(quoting Victor v. State, 203 N.J. 383, 409 (2010))).
Prong two of a prima-facie case of disability discrimination is evaluated
by an objective standard. Grande, 230 N.J. at 18. "A plaintiff may satisfy the
second prong . . . by putting forth evidence either that she was actually
performing her job or was able, with or without reasonable accommodation, to
A-0156-23 12 perform her job to her employer's legitimate expectations." Id. at 21. If a
plaintiff establishes that prong, "[a]n employer may rebut a plaintiff's
reasonable-accommodation showing by providing evidence that the proposed
accommodation is unreasonable." Ibid.
"Although the LAD does not explicitly address a reasonable
accommodation requirement or claim, 'our courts have uniformly held that the
[LAD] nevertheless requires an employer to reasonably accommodate an
employee's' disability." Richter v. Oakland Bd. of Educ., 246 N.J. 507, 524
(2021) (alteration in original) (quoting Royster v. N.J. State Police, 227 N.J.
482, 499 (2017)). N.J.A.C. 13:13-2.5(b) provides "[a]n employer must make a
reasonable accommodation to the limitations of an employee . . . who is a person
with a disability, unless the employer can demonstrate that the accommodation
would impose an undue hardship." Reasonable accommodations are "designed
to make certain changes in the work environment or structuring of employees'
time that will allow disabled employees to remain at work without their physical
[disabilities] impeding their job performance." Caraballo v. Jersey City Police
Dep't, 237 N.J. 255, 268 (2019) (quoting Jones v. Aluminum Shapes, Inc., 339
N.J. Super. 412, 426-27 (App. Div. 2001)).
A-0156-23 13 A "'reasonable accommodation' refers to the duty of an employer to
attempt to accommodate the physical disability of the employee, not to a duty
on the part of the employer to acquiesce to the disabled employee's requests ."
Raspa v. Off. of Sheriff of Gloucester, 191 N.J. 323, 339 (2007) (emphasis
omitted) (quoting Jones, 339 N.J. Super. at 426). Therefore, an employer will
not be found to have violated the LAD if it terminates "an employee who, after
consideration of available reasonable accommodations, nevertheless is no
longer able to perform the essential functions of [the employee's] job." Id. at
341.
In considering an accommodation request, an employer should engage in
an interactive process with the employee making the request. See Victor, 203
N.J. at 424 ("Engaging in the interactive accommodation process 'does not
dictate that any particular concession must be made by the employer . . . [but
instead what it] requires is that employers make a good-faith effort to seek
accommodations.'" (alterations in original) (quoting Taylor v. Phoenixville Sch.
Dist., 184 F.3d 296, 317 (3d Cir. 1999))).
We agree with the trial court's finding that plaintiff failed to establish a
prima facie claim of disability discrimination because she could not demonstrate
prong two—that she "was performing [her] job at a level that met [her]
A-0156-23 14 employer's legitimate expectations," Grande, 230 N.J. at 18 (alterations in
original), or "performing the essential functions of [her] job," Smith, 225 N.J. at
395. The uncontroverted evidence demonstrates plaintiff could not claim she
was capable of performing her essential tasks without an accommodation at the
time of her resignation due to her numerous recorded statements that she was
"totally disabled" as of November 2018. There is no dispute plaintiff did not
seek other work after her resignation. The statements plaintiff made while
seeking disability benefits contradicted her LAD complaint allegations that she
would have been able to work as an HSA with or without accommodations,
ultimately preventing her from establishing the second prong of her prima facie
claim of disability discrimination.
Viewing the evidence in a light most favorable to plaintiff, she fails to
establish a prima facie case of disability discrimination. Plaintiff claimed in her
deposition she was always at different cottages throughout her employment with
WDC and conceded part of her job responsibilities was to lift over fifty pounds.
Additionally, her job included repositioning residents who weighed up to three
hundred pounds and assisting in the toileting of residents who may weigh up to
three hundred pounds. When asked if she would have been able to help residents
with bathing, lifting, and other essential job functions, plaintiff responded she
A-0156-23 15 was unsure. The record demonstrates plaintiff could not perform these essential
job functions, with or without an accommodation.
In addition, the record reflects defendant acted in compliance with the
LAD by considering whether it could reasonably accommodate plaintiff's
request for an accommodation. WDC emailed other DHS facilities, asking if
they had any positions that could accommodate plaintiff's lifting restriction, to
no avail. Further, WDC inquired internally as to any vacant positions either in
or out of the cottages that could accommodate her restrictions. Plaintiff was
ultimately advised no cottage could accommodate her request and WDC had no
clerical vacancies available. Defendant engaged in the interactive process
required by the LAD to determine whether it could accommodate plaintiff
pursuant to her request.
We conclude the trial court did not err in granting summary judgment in
favor of defendant and finding plaintiff had failed to establish she could perform
essential job functions with or without accommodations. The trial court also did
not abuse its discretion in denying plaintiff's motion for reconsideration. The
record before us demonstrates lifting, pushing, or otherwise maneuvering at
least fifty pounds was an essential function of plaintiff's job as an HSA. The
record facts show defendant attempted to provide plaintiff her requested
A-0156-23 16 accommodation but was unable to do so, despite a good-faith effort, and engaged
in an interactive accommodation process with her. See Victor, 203 N.J. at 424.
Engagement in an interactive process and a good-faith effort was all that was
required of defendant. Defendant was not required to eliminate an essential
function of her role in order to accommodate her. Finally, we note plaintiff
could not prove she was terminated as she resigned once she was awarded
disability benefits.
To the extent we have not addressed any of plaintiff's remaining
arguments, we are satisfied they lack sufficient merit to warrant discussion. R.
2:11-3(e)(1)(E).
Affirmed.
A-0156-23 17