In an unpublished decision dated January 7, 2016, the New Jersey Appellate Division in Sheridan v. Egg Harbor Township Board of Education, 2016 N.J. Super. Unpub. LEXIS 10 (App. Div. 2016) vacated the trial court’s dismissal of a former employee’s discrimination complaint and remanded the matter for trial. Plaintiff, a former custodian for the Egg Harbor Township Board of Education, alleged that the Board wrongfully terminated her on the basis of obesity in violation of the New Jersey Law Against Discrimination and subjected her to a hostile work environment due to her floor supervisor’s repeated disparaging remarks about the custodian’s weight. In contrast, the Board posited that the custodian was discharged for non-discriminatory business reasons because she failed several portions of a fitness-for-duty examination (“FDE”) as authorized by N.J.S.A. 18A:16-2. The Board also argued that any comments by the supervisor were benign and did not rise to the level of a hostile work environment.
In applying the three-step burden-shifting test set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for employment discrimination cases, the Appellate Division agreed with the trial court’s determination of the first step of the analysis that the custodian established a prima facie case of discrimination based on a protected class of perceived disability due to obesity. With regard to the second step, a defendant must set forth a legitimate non-discriminatory reason for plaintiff’s discharge. The Appellate Division also agreed with the trial court’s conclusion that the Board demonstrated legitimate reasons for requesting plaintiff to undergo a FDE due to signs of overextension and shortness of breath.
Unfortunately for the Board, the Appellate Division disagreed with the trial’s court analysis of the third-step regarding pretext. That is, based on the record for summary judgment in a light most favorable to the non-moving party, the Appellate Division could not conclude whether the FDE fairly measured the physical skills needed for plaintiff to perform her daily tasks as a custodian. Specifically, the job description against which the custodian was evaluated during the FDE was substantially different than the job description which existed at the time she was hired. The difference amounted to the FDE evaluating her ability to perform specific tasks at twenty-five pounds heavier than in her official job description governing her duties. As the Appellate Division cannot defer to a trial judge’s weight or assessment of the documentary record on a motion for summary judgment, it determined that a genuine issue of material fact exists which precludes summary judgment for the Board.
Moreover, the Appellate Division found questions of material fact as to whether plaintiff’s failure to complete certain portions of the FDE accurately assessed her ability to perform her actual day-to-day responsibilities, whether negative remarks were actually made to plaintiff about her obesity, and whether such comments were severe and pervasive. Given these circumstances, the Appellate Division vacated the trial court decision granting summary judgment to the Board and remanded the case for trial.
