Opinion
DOCKET NO. A-2071-09T2
02-01-2012
YOLANDA HERNANDEZ, Complainant-Appellant, v. MW MANUFACTURERS, INC., Respondent.
Yolanda Hernandez, appellant pro se. Paula T. Dow, Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beverley A. Lapsley, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.PER CURIAM
On appeal from Division on Civil Rights, Department of Law & Public Safety, Docket No. EF14HB-53806.
Yolanda Hernandez, appellant pro se.
Paula T. Dow, Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beverley A. Lapsley, Deputy Attorney General, on the brief).
Complainant, Yolanda Hernandez, appeals from a November 13, 2009 order of the Division on Civil Rights (Division) finding there was no probable cause to credit the allegations of discrimination asserted by her and closing its file. Complainant contended her employer, MW Manufacturers, Inc. (MW), discriminated against her by refusing to accommodate her disability resulting from an injury to her wrist that occurred at work by not offering her a "light duty" clerical position. We affirm.
In March 2004, complainant was hired by MW as a machine operator, assembling windows. She injured her left wrist at work on April 19, 2007, underwent surgery in July 2007, and returned to work on August 22, 2007. The pain in her hand resurfaced on November 29, 2007, after which she received medical treatment. On December 6, 2007, she submitted a formal request for medical leave with a New Jersey temporary disability application completed by Dr. George A. Dendrinos. The request certified that complainant was unable to work due to the pain in her hand and further certified that she had been unable to work since November 30, 2007, but opined that she might be able to return to work on January 14, 2008.
In a letter dated December 10, 2007, MW notified complainant that her absence from work would be counted under the Family and Medical Leave Act (FMLA), 29 U.S.C.A. § 2601 to § 2654, but that MW could not hold a position beyond her date of exhaustion of FMLA leave, December 13, 2007. Accordingly, if complainant were still unable to work by that date, she would be terminated on December 14, 2007. MW's letter also advised that complainant could reapply for employment if her leave extended beyond December 14, 2007. Complainant, however, did not return to work by December 13, 2007, and never reapplied for employment.
On March 20, 2008, she filed a verified complaint with the Division alleging that MW discriminated against her based on her disability in violation of the New Jersey Law Against Discrimination (NJLAD), specifically, N.J.S.A. 10:5-4, -4.1, when it denied her requests for reasonable accommodations by not offering her a "light duty" clerical position in the office. Complainant admitted to the investigator, however, that she could not answer telephone calls due to her limited ability to speak or understand English. She also acknowledged that MW had no available clerical position but asserted it could have created one until her physician cleared her to return to assembling windows.
On February 10, 2009, complainant informed the Division that she was disabled and was currently, and potentially permanently, unable to perform any work that required the use of her hands. She further stated that MW's New Jersey facility was scheduled to close in April 2009, and although it had another facility in Virginia, she was not interested in working for MW, and had applied for Social Security benefits due to her permanent disability. On September 25, 2009, complainant confirmed that MW's New Jersey facility had closed and, commencing May 2009, she began receiving Social Security benefits due to her permanent disability deemed effective November 2007.
In its answer to the complaint, MW stated that complainant did not return prior to the expiration of her FMLA and, therefore, her employment had been terminated. It further stated that complainant did not request any light duty accommodations. Moreover, MW did not have any such position in the office that met complainant's restrictions.
On November 13, 2009, the Division issued a finding of no probable cause to credit complainant's allegations of unlawful discrimination that MW had refused to accommodate her disability. Instead, the agency's investigation revealed that complainant's disability prohibited her from performing the essential duties of her position. Moreover, it found complainant was accommodated by the employer with her requested medical leave of absence and MW had no alternative but to discharge complainant for failing to return from medical leave. The investigation additionally found:
Complainant had no clerical experience and that Respondent had no available clerical position as alleged. Complainant's suggestion that a position be created for
her in Respondent's office that met her considerable limitations, lack of clerical experience and knowledge, and inability to communicate in English was not considered a reasonable accommodation.
This appeal ensued.
On appeal, complainant argues that because upon her initial injury in April 2007, she was assigned to light duty and given office and housekeeping assignments for about three weeks, MW should have been required to create an indefinite light duty position for her based on her permanent disability. Complainant further asserts that she was wrongfully dismissed and MW gave false information about her work habits.
Our review of a final agency decision is limited. We are obligated to uphold such determination unless we determine it was arbitrary, capricious, unreasonable, unsupported by sufficient credible evidence in the record as a whole, or is in conflict with the intention of the legislature. See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); Rosen v. N.J. Div. of Developmental Disabilities, 256 N.J. Super. 629, 642 (App. Div. 1992), certif. denied, 133 N.J. 440 (1993). It is not the role of the reviewing court to substitute its judgment for that of the administrative agencies. Clowes, supra, 109 N.J. at 587. We are obligated to affirm if there is any fair argument in support of the course taken by the agency or any reasonable ground for the difference of opinion among intelligent and conscientious officials. Rosen, supra, 256 N.J. Super. at 642.
Moreover, an agency's interpretation of the statute or regulations it is charged with administering is entitled to considerable weight. In re Young, 202 N.J. 50, 68 (2010). An "'agency's interpretation of the operative law is entitled to prevail, so long as it is not plainly unreasonable.'" L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 489-90 (1995) (quoting Metromedia, Inc. v. Dir. Div. of Taxation, 97 N.J. 313, 327 (1984)).
With deference to the agency and in view of our limited standard of review, we are satisfied there is substantial credible evidence in the record to support the Division's finding of no probable cause. We further note that N.J.S.A. 10:5-4.1, forbidding unlawful discrimination based on disability, contains the qualification "unless the nature and extent of the disability reasonably precludes the performance of the particular employment." "Under the LAD, an employer found to have reasonably arrived at an opinion that a job applicant cannot do the job, either because the applicant is unqualified or because of a given handicap, cannot be found liable for discrimination against that applicant." Raspa v. Office of Sheriff of Gloucester, 191 N.J. 323, 336 (2007) (citations and internal quotation marks omitted). Complainant's wrist injury precluded her from performing her original position as a machine operator, and she was unqualified for a clerical position due to her inability to read, write or converse in English and her lack of clerical skills. Thus, even if a light duty position were available, MW was not required to accommodate complainant because she could not perform the essential job functions even with an accommodation. See Hennessey v. Winslow Twp., 368 N.J. Super. 443, 452 (App. Div. 2004), aff'd, 183 N.J. 593 (2005). Nor does the availability of a light duty assignment for a temporarily disabled employee "give rise to any additional obligation on the part of the employer to assign indefinitely a permanently disabled employee to an otherwise restricted light duty assignment." Raspa, supra, 191 N.J. at 341.
Affirmed.