                                 NOT FOR PUBLICATION WITHOUT THE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-3712-18T3

HOWARD KREBS,

          Plaintiff-Appellant,

v.

BOARD OF TRUSTEES OF
UNION COUNTY COLLEGE,

     Defendant-Respondent.
__________________________

                   Submitted March 25, 2020 – Decided June 23, 2020

                   Before Judges Whipple and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Docket No. L-2226-16.

                   Goldman Davis Krumholz & Dillon, PC, attorneys for
                   appellant (Evan L. Goldman and Kristen Ragon, on the
                   briefs).

                   Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for
                   respondent (Micci J. Weiss, on the brief).

PER CURIAM
      Plaintiff Howard Krebs appeals from a March 13, 2019 order granting

summary judgment to defendant Union County College (UCC) and dismissing

plaintiff's disability discrimination complaint with prejudice and an April 26,

2019 order denying reconsideration. We affirm.

      We glean the following facts from the summary judgment record. In

August 2004, defendant hired plaintiff as a student service specialist, to advise

students seeking career advice, and develop programs to address student

retention goals.   In December 2014, plaintiff was diagnosed with Type-I

Diabetes, which rendered him insulin dependent.        Plaintiff took short-term

disability leave in August 2015. In October 2015, when he exhausted all his

sick leave and was cleared to work full-time without restrictions, he returned to

work. At work, plaintiff used an insulin pump to monitor his glucose levels and

deliver insulin.

      After his return to work, plaintiff's attendance became inconsistent.

Within a few weeks, Robert Case, Associate Director of Advising, Career, and

Transfer Department, gave plaintiff a verbal warning and placed him on a two-

week review to monitor his attendance. In December 2015, Heather Keith,

Director of the Advising, Career, and Transfer Department, sent plaintiff a First

Written Warning for "excessive absences." The warning noted: "Since our


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                                       2
[verbal warning] on 11/9/15, you have . . . been absent from work on 11/17 [and]

12/3 sick, and 12/2 half day emergency vacation. Furthermore, as reported by

the floor manager, you disappear from the floor for extended periods of time

throughout the day." Keith advised plaintiff that failure to improve would result

in further disciplinary action up to and including discharge. On that same day,

Donnell K. Clement, manager of the UCC Elizabeth Campus, suggested plaintiff

separate his lunch break into two separate parts–two thirty-minute breaks–so

plaintiff could better manage his medical condition.

      On March 3, 2016, Keith sent plaintiff a First Written Warning for

Tardiness, asserting that from December 15, 2015 through February 17, 2016,

plaintiff was late to work on thirteen days. On March 11, 2016, Case sent

plaintiff a Written Warning for "Poor Performance and Insubordination"

because plaintiff's management of his caseload continued to be at an

unacceptable level and his work was not submitted in a timely manner.

      Approximately two weeks later, on March 24, 2016, Case sent plaintiff a

Final Written Warning with a three-day suspension because plaintiff: was absent

for three days, late on four days, and left early on three days in March 2016; his

performance continued to decline; and he did not respond to the associate

director's multiple requests for responses.


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                                        3
      On April 4, 2016, plaintiff, through counsel, formally demanded that the

parties initiate the "'interactive process'" and requested a meeting to address the

issue of reasonably accommodating plaintiff's disability status. The interactive

process had begun in a meeting on December 4, 2015 where plaintiff was

informed that if he needed an accommodation, he should consult a medical

professional and convey such information to defendant.

      On April 14, 2016, the parties attended an interactive process meeting. As

a result of the meeting, Human Resources acknowledged, by letter dated April

18, 2016, defendant was

            able to continue accommodating two . . . half an hour
            lunch breaks daily. In addition, we are able to
            accommodate up to two . . . fifteen minute breaks
            during the day per your request to take care of your
            personal needs with medical certification from your
            doctor stating this need.

                   Currently you are working three . . . days per
            week from 11:30am-7:30pm and two . . . days per week
            from 8:30am-4:30pm.       We would be willing to
            permanently change your hours to five . . . days per
            week from 11:30am-7:30pm if this will help your
            situation.

                  As of the date of this letter, you are expected to
            be on time for your shift and perform the functions
            outlined in your job description which was presented to
            you at the meeting. If you continue to be late or absent,
            insubordinate, and not perform, it will result in further
            disciplinary action up to and including termination.

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                                        4
      However, on April 21, 2016, Vincent Lotano, defendant's Director of

Human Resources, reminded plaintiff "[t]o be clear, the accommodations

previously discussed and recorded during the interactive process cannot be

considered for approval without sufficient medical documentation. Submit your

medical provider report to me by April 28, 2016."

      Plaintiff never provided the medical certification by the imposed deadline

and on April 29, 2016, he was terminated from his employment "for repeated

poor performance, poor attendance, excessive tardiness, and insubordination."

Plaintiff filed a complaint against defendant alleging violations under the New

Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, on the basis

of his disability. Following discovery, defendant filed a motion for summary

judgment.

      The court heard argument on defendant's motion and on March 13, 2019,

granted summary judgment and dismissed the entirety of plaintiff's complaint

with prejudice. Plaintiff moved for reconsideration which was denied.

      This appeal followed.

      We review rulings on a motion for summary judgment de novo. Richter

v. Oakland Bd. of Educ., 459 N.J. Super. 400, 412 (App. Div. 2019) (citation

omitted). We view the competent evidential materials presented in a light most

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                                       5
favorable to the non-moving party, according him all favorable inferences and

affirming summary judgment only if the facts present no genuine issue for trial.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (citation

omitted).

      On appeal, plaintiff asserts the court erred granting summary judgment in

favor of defendant and dismissing his claim for disability discrimination under

the LAD. Specifically, plaintiff asserts the court: (1) did not correctly apply the

standard to determine whether plaintiff established a prima facie case of

discrimination or failure to accommodate; (2) contravened established case law

by finding plaintiff's absenteeism excessive, as such an inquiry is better left for

a jury; and (3) ignored critical evidence illustrating that defendant failed to

engage in the interactive process.

      The LAD prohibits an employer from terminating a disabled employee

because of his or her disability "unless the nature and extent of the disability

reasonably precludes the performance of the particular employment." N.J.S.A.

10:5-4.1. To establish a prima facie case of disability discrimination in a

termination context, plaintiff must demonstrate by a preponderance of evidence

that: (1) he was disabled within the meaning of the LAD; (2) he was performing

his job at a level which met defendant's legitimate expectations; (3) he was


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                                        6
discharged; and (4) the defendant sought someone to perform the same work

after he left. Grande v. St. Clare's Health Sys., 230 N.J. 1, 17-18 (2017). A

disability discrimination case alleging a failure to accommodate an employee's

disability, requires proof on only the first three elements of a prima facie

discrimination claim. Victor v. State, 401 N.J. Super. 596, 610 (App. Div.

2008); Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App.

Div. 2001).

      If a plaintiff succeeds in establishing a prima facie case, "a presumption

arises that the employer unlawfully discriminated against the plaintiff." Clowes

v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988). "The analysis then proceeds

to the second step of the test, where 'the employer's burden varies depending on

whether the employer seeks to establish the reasonableness of the otherwise

discriminatory act or advances a non-discriminatory reason for the employee's

discharge.'"   Grande, 230 N.J. at 18-19 (quoting Jansen v. Good Circus

Supermarkets, Inc., 110 N.J.363, 382 (1988)).

      If the employer asserts, as here, it has a non-discriminatory reason for the

discharge, the burden of production shifts to the employer. Id. at 19. "The

employee may [then] respond by proving by a preponderance of the evidence

that the reason proffered by the employer 'was not the true reason for the


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                                        7
employment decision but merely a pretext for discrimination.'" Ibid. (quoting

Jansen, 110 N.J. at 382-83). The burden of proving intentional discrimination

always remains with the employee. Ibid.

      Here, the second prima facie element, whether plaintiff was performing

his job at a level which met defendant's legitimate expectations, is in dispute.

In analyzing this element, we consider whether a plaintiff was able to perform

the essential functions of the position with a reasonable accommodation. The

Grande Court explained that a plaintiff may satisfy the second element of the

prima facie case "by putting forth evidence either that [he] was actually

performing [his] job or was able, with or without reasonable accommodation, to

perform [his] job to [his] employer's legitimate expectations." Grande, 230 N.J.

at 21. "Procedurally, courts have recognized that the prima facie case is to be

evaluated solely on the basis of the evidence presented by the plaintiff,

irrespective of defendant's efforts to dispute the evidence." Zive v. Stanley

Roberts, Inc., 182 N.J. 436, 448 (2003).

      Defendant argues plaintiff never established this second prong because his

absenteeism rendered him unqualified for the position and defendant had no duty

to accommodate such absenteeism. See Svarnas v. AT&T Commc'ns, 326 N.J.

Super. 59 (App. Div. 1999). In addition, defendant asserts that plaintiff was


                                                                        A-3712-18T3
                                       8
advised that he would be terminated if he showed no improvement in his poor

attendance, excessive tardiness, poor performance, and insubordination.

      In Svarnas, an employee who suffered from asthma and bodily injuries

after a car accident was "absent from the office more than 600 days in a twenty-

two-year period. . . ." 326 N.J. Super. at 80. The employer terminated the

employee for excessive absenteeism. Id. at 63. The employee sued the company

under the LAD, asserting discrimination based on her asthma condition and her

bodily injuries. Ibid. The employee alleged that her absenteeism was merely a

pretext for the company's unwillingness to accommodate her part-time work

schedule and desire for a smoke-free work environment. Ibid.

      The trial court granted summary judgment for the employer finding that

no accommodation was required because plaintiff was not otherwise qualified

to do her work. Id. at 72. Because plaintiff had been out of work unpredictably

and for a variety of medical reasons, plaintiff "could not be so qualified because

she was not there." Id. at 72. We affirmed noting that "plaintiff had been warned

about her sporadic, unpredictable, chronic, and excessive absenteeism for at

least eight years prior to termination." Id. at 77. We stated "reasonably regular,

reliable, and predictable attendance is a necessary element of most jobs," and




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                                        9
that "an employee who does not come to work cannot perform any of her job

functions, essential or otherwise." Id. at 78.

      By way of contrast, in Grande, the Court found the modest burden to

withstand summary judgment as to the second prong was met. 230 N.J. at 26.

In that case, the plaintiff suffered a series of work-related injuries and spent four

months recovering from surgery before returning to work full duty. Id. at 8.

Although plaintiff's doctor cleared her to resume full-duty work, her employer

stated she would have to undergo physical testing before returning to full duty.

Id. at 9. The results of the testing revealed the plaintiff would have permanent

lifting restrictions and her employer terminated her stating that the limitation

would prevent her from doing her job. Id. at 11-12.

      Grande's employer argued, among other things, that she failed to satisfy

the second element of the prima facie case because her lengthy absences were

proof that she was not performing her job.             Id. at 24-25.     The Court

acknowledged that the plaintiff worked for defendant for ten years and was

never warned that her job was at risk, however, the court also noted that the

plaintiff "was absent for over twelve months due to her injuries, worked about

two months on light duty assignment, and was on light duty, concededly at the

hospital's request, at the time she was fired." Ibid. Nevertheless, the Court


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                                        10
found that the modest burden to withstand summary judgment as to the second

prong had been met and stated an issue of fact existed as to whether plaintiff's

"periods of absence from work were sufficiently 'chronic and excessive,'" to

prevent her from illustrating that she was performing the job when she was

terminated. Id. at 26.

      Here, the trial court correctly determined that plaintiff failed to establish

the second prong of his prima facie case. While neither Svarnas nor Grande

directly mirror the facts of this case, Svarnas is more instructive. In Svarnas,

we determined the employee was not qualified because she had excessive

absenteeism despite being notified that her attendance was an issue and could

lead to termination. Plaintiff here was also absent on numerous occasions and

his overall attendance was not "reasonably regular, reliable, and predictable"

despite being notified through various warnings that he could be terminated if

he showed no improvement. Notably, plaintiff does not dispute that his job

required him to be in the office as his position required consistent interaction

with students.1


1
    As noted above, defendant articulated multiple reasons for terminating
plaintiff including repeated poor performance, poor attendance, excessive
tardiness, and insubordination. The trial court only relied on plaintiff's
absenteeism for the proposition that he was unqualified. It is worth noting that


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                                       11
      Moreover, plaintiff's failure to actively engage in the interactive process

is fatal to his disability discrimination claim under the LAD.

      The New Jersey Administrative Code (Code) states the role of an

employer in guaranteeing that a disabled person is not disadvantaged in the

workplace. Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 421 (App.

Div. 2001). The Code requires employers "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." N.J.A.C. 13:13-2.5(b)(2). We adopted the standard for the

informal interactive process set forth in federal regulations in Tyan v. Vicinage




a large portion of plaintiff's attendance issues, since returning from leave,
stemmed from tardiness rather than absenteeism. We have found that a modified
work schedule, in certain circumstances, is a reasonable accommodation,
whereas, excessive absenteeism need not be accommodated even if caused by a
disability under the act. Compare Jones v. Aluminum Shapes, 339 N.J. Super.
412, 421 (App. Div. 2001) (noting that N.J.A.C. 13:13-2.5 states under certain
circumstances modified work schedules are reasonable accommodations); with
Svarnas, 326 N.J. Super. at 77 (noting that there is no way to reasonably
accommodate the unpredictable aspect of an employee's sporadic absences even
if the employee is using time allotted to her, and even if the absences are
disability related.). Nevertheless, on balance, we note plaintiff was on notice
that his attendance issues were an issue that could lead to termination, he was
accommodated, was given chances to fix this behavior, and his overall
attendance (tardiness, absenteeism, and leaving early) was unpredictable.
Additionally, plaintiff's attendance issues were further compounded by his
inability to help in facilitating the interactive process.
                                                                         A-3712-18T3
                                      12
13 of Superior Court of N.J., 351 N.J. Super. 385, 400-01 (App. Div. 2002),

where we stated

            To determine what appropriate accommodation is
            necessary, the employer must initiate an informal
            interactive process with the employee. . . . This process
            must identify the potential reasonable accommodations
            that could be adopted to overcome the employee's
            precise limitations resulting from the disability. . . .
            Once a handicapped employee has requested assistance,
            it is the employer who must make the reasonable effort
            to determine the appropriate accommodation.

      A plaintiff arguing that an employer failed to participate in the interactive

process bears the burden of demonstrating:

            (1) the employer knew about the employee's disability;
            (2) the employee requested accommodations or
            assistance for [his] disability; (3) the employer did not
            make a good faith effort to assist the employee in
            seeking accommodations; and (4) the employee could
            have reasonably accommodated but for the employer's
            lack of good faith.

            [Tyan, 351 N.J. Super. at 400-01.]

      While it is beyond cavil that the LAD requires employers to make good

faith efforts in assisting disabled employees in seeking accommodations, id. at

401, employees must also engage in the interactive process. See Potente v. Cty.

of Hudson, 187 N.J. 103, 111 (2006) ("[A]n employee cannot refuse to cooperate

with an employer's efforts to accommodate his disability and then claim failure


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                                       13
to accommodate."); see also Mengine v. Runyon, 114 F.3d 415, 420 (3d. Cir.

1997) (finding under the reasonable accommodation requirement of the

Rehabilitation Act of 1973 "both parties have a duty to assist in the search for

appropriate reasonable accommodation and to act in good faith.").

      We reject plaintiff's argument that the interactive process failed because

of defendant. Defendant provided accommodations to plaintiff, defendant had

no duty to accommodate plaintiff's absenteeism or tardiness, and plaintiff failed

to keep them updated as to the status of his medical certification—information

which was needed to determine how the additional proposed accommodations

would have remedied plaintiff's tardiness and absenteeism.

      Affirmed.




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                                      14
