Federal Court Rejects Summary Judgment for Employer in Disability Discrimination Claim Where Employer Failed to Engage in Interactive Dialogue Until Employee Could Return to Work

Penelope Bertolotti worked for Autozone, Inc. as a Divisional Human Resources Generalist.  She was hired in early 2012 and sought a leave of absence due to personal illness on October 15, 2012.  She returned to work on October 29, 2012 only to request another leave of absence commencing on November 5, 2012.  At first her doctor put her out of work until December 3, 2012, but in subsequent notes he kept her out of work until February 1, 2012.  Her doctor noted that she would need surgery for her condition, which was gastroparesis, an incurable disease that affected Bertolotti’s ability to digest foods and liquids.  She wore a pacemaker to assist in digestion.  Bertolotti ended up having surgery on January 3, 2013.

In a letter dated December 12, 2012, AutoZone advised Bertolotti that the company intended to replace her as Regional HR Manager but would attempt to place her in another position at such time as she might return to work.

Bertolotti did not return to work on February 1, 2013.  Her physician indicated that he anticipated her new return-to-work date as March 28, 2013.  The doctor added certain permanent restrictions such as no exposure to theft detectors, power stations and no excessive or repetitive bending, twisting or stretching.  Plaintiff later contacted her supervisor to ask what position she would be offered when she could return to work.  She said she needed to know what the job would be to determine if she could perform it.  Her supervisor responded that he would not engage in discussions about accommodations until such time as Bertolotti was ready to return to work.

The next note that Bertolotti produced was on April 1, 2013, which added some other permanent restrictions which would remain in effect until May 24, 2013, but the doctor still did not provide a return-to-work date.

On April 11, 2013 AutoZone wrote to Bertolotti to advise that the company hired someone to replace her as the Regional HR Manager, adding that when she could return to work, the company would engage in the interactive process with her.

On May 24, 2013, Bertolotti’s doctor prepared another note stating that she could return to work without any restrictions effective August 21, 2013.  Bertolotti later sued under the New Jersey Law Against Discrimination.  After completion of discovery, AutoZone moved for summary judgment.

Plaintiff argued that there was direct evidence of discrimination by virtue of the December 12, 2012 letter from the company. That letter noted that plaintiff was not eligible for FMLA (having worked less than a year) and that she would be replaced as Regional HR Manager.  AutoZone countered that plaintiff was not qualified to perform the essential job functions because she had never been released to return to work.

The key document in the case was the December 12, 2012 letter.  Plaintiff argued that this letter proved disability discrimination. AutoZone argued that the letter did not really matter because the company did not actually terminate her position in December 2012 but waited until April 2013.  The Court disagreed:  “However, the crucial question is not how long it actually took Plaintiff to recover, or how long it took Defendants to hire a new employee, but what Defendants knew and expected of Plaintiff’s condition at the time they decided to remove her from the position of Regional HR Manager.”  Plaintiff’s supervisor testified that the decision was made in December 2012 to replace her because of the uncertainty of her medical condition.  This decision was made at a time when the company expected plaintiff to be able to return to work by February 1, 2013.

The Court acknowledged a key principle of New Jersey law, namely that an employer is not required to provide a disabled employee an indefinite leave of absence if such a request would pose an undue hardship on the employer.  “Here, however, Plaintiff was not seeking an indefinite leave of absence at the time Defendants decided to remove her as Regional HR Manager.  She had an anticipated return date of February 1, 2013.  At that time, Defendants had no reason to believe that Plaintiff would not be returning on February 1, 2013 as planned.”

The Court was also critical of AutoZone for not engaging in the interactive process in a timely manner.  The Court noted that in 2006 the New Jersey Administrative Code was amended to remove language that exempted employers from engaging in the interactive process only when disabled employees were “presently” able to perform their job duties.  It said, “The interactive process requires employers to make a good faith effort to seek accommodations.”

Once Plaintiff requested an accommodation, Defendants were required to do more than tell Plaintiff that she could not return to work without a release.  While defendants argue that they needed to know a date certain for recovery and a medical release before engaging in the interactive process, at least one court in this district has rejected a similar argument. . . . ‘[t]he law does not require that the employer know that an accommodation is possible before making reasonable efforts to identify an accommodation.  Instead, the law requires an interactive process, the purpose of which is to search out accommodations that might suffice, not to explore those obvious to the employer before the process even occurs.’

For New Jersey employers, this case is a warning shot on the issue of the need for employers to engage in the interactive dialogue once an employee requests accommodations and not to wait until the employee proves he or she can return to work.  The problem with the defense in this case centered on the December 12, 2012 letter which the Court noted came only after three weeks from the commencement of plaintiff’s leave of absence.  The Court clearly thought that the company may have jumped the gun so soon after the leave began, allowing a jury to decide whether the company indeed acted in a discriminatory manner.

This case reaffirms the rule that a request for an indefinite leave of absence is almost always unreasonable.  But what is a reasonable period of time?  There is no hard and fast rule but clearly, this Court is saying that three weeks did not seem reasonable in the context of these facts.  The Court felt that it was problematic for AutoZoner to make a decision to terminate an employee three weeks after commencement of leave, full knowing that the employee at that time expected to return to work in a couple of months.   One suspects that the outcome of this case would have been different if the employer had waited until April to advise that it was removing plaintiff from her position.  By that point in time, plaintiff still had not obtained a return to work date, and the company would have had a stronger argument.   The Court also questioned the company’s position that the HR position was so critical  that it had to replace plaintiff in December 2012.   If that were true, why did the company wait another four months to hire the replacement and how did the company manage for that four month period?  These questions clearly bothered the Court and raised questions for the jury to eventually address regarding the intent of the December 12, 2012 letter.

This case can be found at Bertolotti v. AutoZone, Inc., 32 AD Cases 435 (D. N.J. September 22, 2015).