                                NOT FOR PUBLICATION WITHOUT THE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-3324-17T2

DELAWARE RIVER PORT
AUTHORITY,

           Plaintiff-Appellant/
           Cross-Respondent,

v.

FRATERNAL ORDER OF POLICE
PENN-JERSEY LODGE NO. 30
IN THE MATTER OF LAURA
BOUCHER,

     Defendant-Respondent/
     Cross-Appellant.
________________________________

                    Argued March 5, 2019 – Decided March 27, 2019

                    Before Judges Fisher, Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Camden County, Docket No. C-
                    000087-17.

                    William F. Cook argued the cause for appellant/cross-
                    respondent (Brown & Connery LLP, attorneys; William
                    F. Cook, of counsel and on the briefs).
            Charles T. Joyce argued the cause for respondent/cross-
            appellant (Spear Wilderman, PC, attorneys; Charles T.
            Joyce, of counsel and on the briefs).

PER CURIAM

      The Delaware River Port Authority (DRPA) appeals from a Chancery

Division order confirming an arbitration award in favor of DRPA police officer

Laura Boucher, a member of the Fraternal Order of Police Penn-Jersey Lodge

No. 30 (FOP), the union representing police officers employed by the DRPA.

The FOP cross-appeals from the denial of its application for an award of

attorney's fees and costs incurred in the Chancery action. We affirm.

                                       I.

      Boucher began working for the DRPA as a Public Safety Dispatcher in

November 2012. While serving in this role, Boucher became pregnant with her

first child. She experienced an uncomplicated pregnancy and continued to work

as a dispatcher until about a week before her due date.

      The DRPA hired Boucher as a police officer in 2014. After completing

the academy, she was assigned to the Transit Unit, to work the 6:00 p.m. to 6:00

a.m. night shift. In the summer of 2015, Boucher became pregnant with her

second child. This time Boucher's pregnancy was marked by "severe morning




                                                                        A-3324-17T2
                                       2
sickness and severe fatigue." Boucher's OB/GYN advised her to request a

modified duty position from her employer in the interest of a healthy pregnancy.

      On September 1, 2015, Boucher sent an email to Leila Camp, a DRPA

claims assistant, stating she was pregnant and due in April 2016. Boucher

further stated she planned to obtain a doctor's note for light duty at an upcoming

appointment. Boucher asserted she would need leave in the next year under the

Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 to 2654. Boucher

asked about the process for formally requesting light duty, including any

specific requirements and forms to be completed by her physician. Camp

provided the FMLA paperwork, which Boucher completed and timely submitted

to Brenda Greene, a DRPA claims administrator. Boucher informed Greene she

notified administration of her pending request for light duty.

      The following day, Lt. Robert Finnegan emailed Boucher about meeting

with Chief John Stief concerning her request for light duty and medical leave.

Finnegan instructed Boucher to submit any required paperwork to Greene.

Finnegan invited Boucher to contact him with any questions.

      The meeting with Stief took place on September 14, 2015. Finnegan also

attended the meeting. Boucher informed Stief of her pregnancy complications

and attendant request for light duty. Stief told Boucher her request was denied


                                                                          A-3324-17T2
                                        3
because no light duty was available. When Boucher inquired about a vacancy

listed for a position in Central Records, Stief told her an employee in another

title was filling that position.

      Stief advised Greene no suitable temporary assignments were available to

accommodate Boucher's light duty restrictions. In a letter to Boucher, Greene

confirmed Boucher would need a modified duty assignment to return to work

based on the restrictions stated in Boucher's FMLA certification and the physical

requirements of her position. Greene informed Boucher there were no modified

duty assignments available within the police department or throughout the

Authority "that would suit your current physical restrictions."

      Boucher was subsequently advised of her eligibility for short-term

disability benefits through DRPA's disability carrier, The Standard. Boucher's

application for short-term disability benefits was approved after she submitted

additional medical records. Boucher used accrued paid leave to cover the two-

week waiting period not covered by the disability benefits.

      In late December 2015, Boucher received a letter from Camp confirming

Boucher's FMLA leave became effective September 5, 2015, and expired twelve




                                                                         A-3324-17T2
                                        4
weeks later on November 27, 2015. 1 The letter also supplied Boucher with

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213, forms to

be submitted by January 8, 2016. Because Boucher's next doctor's appointment

was not until the last week of January, FOP Secretary Tim Hoagland emailed

Greene, objecting to the requirements imposed by the DRPA, including the

application deadline.

      In February 2016, The Standard denied long-term disability benefits and

reversed the grant of short-term disability benefits because Boucher's medical

records did not establish an inability to perform her job functions as of

September 4, 2015, the date she stopped working.           Boucher appealed the

decision and received short and long-term disability benefits during the course

of the subsequent grievance and arbitration proceedings.

      Boucher's second child was born on April 8, 2016. She returned to work

on June 8, 2016, without restrictions.

      The DRPA and the FOP are parties to a collective bargaining agreement

(CBA). Article II, Section 6 of the CBA provides:

                  The DRPA and FOP agree that no action will be
            taken for the purpose of discriminating against any
            Employee because of union membership or activities,

1
  Boucher would become eligible for more FMLA hours after September 5,
2016, and after she worked at least 1250 hours preceding the leave.
                                                                        A-3324-17T2
                                         5
            race, color, creed, age, sex, national origin, marital
            status, political affiliation or activity, or non[-]job-
            related disability, except where sex or age is a bona fide
            occupational qualification.

Article XIX provides:

                  The DRPA will place any non-work related
            temporarily disabled Employees able to do so on light
            or limited duty status within the Department of Public
            Safety to the extent that such duty is determined to be
            available in DRPA's sole discretion, even if on an
            intermittent basis. This provision shall also apply to
            those Employees temporarily partially disabled due to
            injury on the job before they have fully recovered, if
            approved by a physician. The DRPA will make a
            reasonable attempt to place the temporarily partially-
            disabled Employee on the same work schedule
            currently assigned to that Patrol officer.

      In turn, Article XXXIII states: "In addition to the rights contained in this

Agreement, this Agreement incorporates any and all rights available under

applicable federal or state laws, including but not limited to the Americans with

Disabilities Act and the Family and Medical Leave Act."

      The FOP filed a grievance on behalf of Boucher after the DRPA denied

her request for light duty to accommodate complications that arose during her

pregnancy. The grievance did not resolve and was referred to the American

Arbitration Association for binding arbitration pursuant to the CBA. The parties

stipulated to the following statement of the issue: "Was DRPA required to


                                                                          A-3324-17T2
                                        6
provide light duty and/or reasonably accommodate Officer Boucher under

Articles 2 and/or 19 of the CBA, and if so, what shall the remedy be?" The

arbitrator conducted a three-day hearing. Boucher and FOP President Charles

Price testified for the FOP; Greene and Stief testified for the DRPA.

      Greene testified no request for light duty was granted to any DRPA police

officer after 2013. Greene said the light duty position in the records room was

filled by another full-time employee and there were no light duty positions in

the past five years. Additionally, light duty positions in the radio room were no

longer available to police officers because dispatcher positions were now in a

different bargaining unit represented by another union.

      Greene stated her responsibility to accommodate a DRPA police officer is

limited to ascertaining if a suitable position is available in that department,

because if not, no accommodation is possible. Greene did not contact Boucher

to ask her what responsibilities and job tasks she was able to perform. Greene

acknowledged that to the best of her recollection, no previous request for light

duty by a pregnant officer had been denied. Greene said she was unaware of

any police officer being assigned to light duty in a position outside the

Department of Public Safety.




                                                                         A-3324-17T2
                                       7
      Greene recalled an instance where a police officer was placed on desk

duty because his duty weapon was taken away as a result of a domestic violence

complaint. The officer was not permitted to drive a police vehicle or perform

other police work. He was given an alternate duty assignment of cleaning up a

storage room until he could resume police work.

      Boucher testified she expected to receive light duty based on her

conversations with three other female officers who had received light duty while

pregnant. Boucher's OB/GYN informed her that working the 6 p.m. to 6 a.m.

shift disrupted her normal sleep rhythms and "most likely" exacerbated her

fatigue and morning sickness. Boucher testified she assumed she would be

working the same shift as administration if she were assigned to light duty. Had

the DRPA offered her light duty during the night hours, she would have

consulted her physician to determine if the accommodation was advisable.

Boucher did not believe she could be "picky" regarding shift assignment on light

duty, and "would have been open to some sort of cooperative agreement as to

where [she] would have been available to work and where they felt work needed

to be done."

      Boucher further testified the DRPA never offered a dispatcher assignment

"or anything like that."   Had such an offer been made, she "would have


                                                                        A-3324-17T2
                                       8
considered it" and "talked to whoever offered [her] that position and figured out

a way to try to make it work." In that regard, Boucher stated:

            When I requested light duty, it was purely for the fact
            that I wanted to work. I didn't want to sit at home. I
            didn't want to be on disability. I wanted to be able to
            continue to be active in the Police Department or with
            the Authority. There were a lot of things I missed out
            on being on disability. I would have done whatever I
            could have to continue to work.

      Stief testified that light duty in the radio room is no longer available

because dispatchers are represented by a separate union. He explained light duty

is no longer available in central records because documents are processed

electronically rather than manually. Additionally, since 2014, the DRPA has

employed a media person to handle requests for video records, making that work

unavailable for light duty.

      Stief estimated, at any given time, between six and nine officers are out

on workers' compensation leave, but no officer has been assigned desk duty or

light duty since the beginning of 2014. As to the vacant administrative secretary

position, Stief said that work was being performed by another secretary, thereby

allowing the DRPA to hire another police officer.

      The FOP argued the DRPA violated the ADA and its own policies by not

determining whether a suitable position outside the Department of Public Safety


                                                                         A-3324-17T2
                                       9
was available for Boucher to fill during her pregnancy. The FOP pointed to the

DRPA's Worker's Compensation Modified/Alternate Duty Return to Work

Program, which committed the DRPA to "make every effort" to place disabled

workers in full pay employment status, even if it required finding "suitable work

in another department within the Authority."      The DRPA also averred the

DRPA's "sole discretion" regarding light duty assignments must be read together

with the other terms of the CBA, including Article II, Section 6 and Article

XXXIII, which require compliance with the ADA.

      The DRPA contended no officers on disability or workers' compensation

leave have been placed on desk duty after January 1, 2014. It argued the desk

duty of the officer facing domestic violence charges occurred more than two

years before Boucher's leave in September 2015.        The DRPA also claimed

Article XIX applies only to positions within the Department of Public Safety.

The DRPA emphasized no light duty positions were available during Boucher's

pregnancy. The DRPA further argued the arbitration was limited to whether it

violated Articles II or XIX of the CBA.

      In her written opinion and award, the arbitrator found Article XIX granted

the DRPA sole discretion to determine whether light duty assignments were

available. Still, she reasoned:


                                                                         A-3324-17T2
                                      10
       DRPA cannot exercise its discretion under
Article XIX in a vacuum, but must do so in concert with
the [CBA] as a whole. A contract interpretation that
includes the Agreement as a whole is preferred to an
interpretation that considers a provision in isolation.
The FOP argues that Articles XIX and II, Section 6 are
read in the context of the Agreement as a whole,
including Article XXXIII, Officer Boucher's request for
light duty as an accommodation during her pregnancy
must take into account her rights under the [ADA]
including the 2008 amendments (ADAAA). Article
XXXIII which specifically incorporates the rights
available under the ADA into the Agreement.

      ....

      The amendments to the ADA, in the ADAAA of
2008,     specifically   include    "pregnancy-related
impairments" in the definition of a disability. EEOC
Enforcement Guidance: Pregnancy Discrimination and
Related Issues No. 915.003 (June 25, 2015). Given that
Officer Boucher sought a reasonable accommodation
pursuant to the ADAAA, the DRPA is obligated both
by statute and Articles II and XXXIII of its [CBA],
which incorporate protections against discrimination
and requires compliance with the ADAAA of 2008, to
consider that request by engaging in an "interactive
process" to determine what accommodation, if any,
should be provided.           That process requires
communication between the employer and the
employee to determine whether a reasonable
accommodation of the employee is possible without
causing undue hardship on the employer. In this
instance, the DRPA unilaterally determined that no
accommodation was possible without engaging in the
"interactive process" required by the ADA. Warner v.
WM. Bolthouse [Farms Inc., No. 1:17-cv-00217, 2017
U.S. Dist. LEXIS 23172, at *6 (E.D. Cal. Feb. 17, 2017)

                                                          A-3324-17T2
                         11
(citing United States EEOC v. UPS Supply Chain
Solutions, 620 F.3d 1103 (9th Cir. 2010))]. That is,
neither Chief Stief nor Ms. Greene inquired as to what
tasks Officer Boucher could perform or what shifts she
could work. Ms. Greene inquired only whether Chief
Stief had light duty available within the Department of
Public Safety and viewed a list of open positions on the
DRPA website. While those actions are appropriate,
without some discussion with Officer Boucher, they are
not sufficient to constitute an "interactive process" and
to determine whether a reasonable accommodation is
available.

      . . . The record in this instance does not reflect
that DRPA engaged in discriminatory conduct based
upon Office[r] Boucher's pregnancy, but it does reflect
that she was summarily denied light duty without any
effort to determine whether she could be
accommodated.

      Even given Chief Stief's testimony that no light
duty was available within the Department of Public
Safety, it is possible that Officer Boucher could have
been accommodated on an intermittent basis, had that
option been discussed. Article XIX provides that light
duty might be available on an intermittent basis. Police
officers were assigned to work as dispatchers, despite
the dispatchers' representation by a different union,
when the Department of Public Safety experienced a
shortage of dispatchers during the papal visit in 2015.
However, only active duty police officers were
assigned as dispatchers.         Officer Boucher had
previously worked as a dispatcher. Had a full
interactive process occurred, perhaps some light duty
might have been available to Officer Boucher during
periods when there was a shortage of dispatchers. I
note that the "interactive process" may not always
result in a light duty accommodation to a pregnant

                                                            A-3324-17T2
                          12
              police officer, pursuant to Article XIX, but that
              determination remains dependent on DRPA's engaging
              in the interactive process before exercising its
              discretion under Article XIX.

                     The FOP also argues that DRPA was obligated by
              its     then      new      Worker's       Compensation
              Modified/Alternative Duty Return to Work Program,
              together with the ADA to "make every effort" to place
              Officer Boucher in a fulltime position including making
              the effort to find "suitable work in another
              department…" The EEOC's Enforcement Guidance:
              Worker's Compensation and the ADA, EEOC Notice
              No. 915.002, does require employers that reserve light
              duty positions for employees with occupational injuries
              to extend the same opportunities to workers with
              disabilities covered by the ADA. In this instance, Ms.
              Greene reviewed the listing of job postings within the
              DRPA to determine whether there was one where
              Officer Boucher could work for the duration of her
              pregnancy. That review would have been sufficient in
              this instance had the DRPA engaged in the interactive
              process with Officer Boucher to determine her skills
              and limitations.

      The arbitrator determined the DRPA violated Article XIX "when it failed

to engage in an interactive process to properly determine whether Office[r]

Boucher could be reasonably accommodated as required by the ADA before it

exercised its discretion to deny her request for light duty to accommodate her

pregnancy."     The arbitrator awarded Boucher the "difference between the

amount she received in long and short term disability payments from September



                                                                        A-3324-17T2
                                       13
14, 2015 . . . through April 1, 2016, the point when she would have left work for

the delivery of her child."

      The DRPA brought this Chancery Division action to vacate the award

pursuant to N.J.S.A. 2A:24-7.       The FOP answered and counterclaimed to

confirm the award and for attorney's fees and costs pursuant to N.J.S.A. 2A:15-

59.1. The parties agreed to resolution of the matter through cross-motions for

summary judgment without conducting discovery.

      In an oral decision, the Chancery judge assessed the propriety of the award

under the four categories enumerated in N.J.S.A. 2A:24-8. Specifically, the

judge considered whether the arbitrator exceeded her authority by imposing a

monetary award, which the DRPA labelled a sanction. The trial court concluded

the arbitrator did not exceed her powers, finding the monetary award was

compensatory, rather than punitive, and had an objective basis and rationale.

The judge noted "the arbitrator heard the testimony and reached the final

conclusion that the DRPA did not engage in an interactive process to determine

what accommodations could be made available to this officer." The judge

declined "to challenge" the arbitrator's factual findings. The judge concurred

with the arbitrator's conclusion that the DRPA did not fulfil its obligation to

engage in an interactive process.


                                                                         A-3324-17T2
                                      14
      The trial court also considered the FOP's application for attorney's fees

and costs as a sanction based on the DRPA routinely seeking judicial review of

binding public sector arbitration awards. The trial court declined to consider

prior cases filed by the DRPA, and based its ruling on the facts presented in this

matter. The court concluded the DRPA had the right to challenge the award and

the decision to do so was not arbitrary.

      The trial court confirmed the arbitration award and denied the FOP's

application for attorney's fees and costs. Orders reflecting those rulings were

entered. This appeal and cross-appeal followed.

      The DRPA argues the award must be reversed because the Arbitrator

misapplied the law in ruling that the DRPA violated the ADA without a finding

of discrimination against Boucher. The CBA granted the DRPA sole discretion

in determining the availability of light duty assignments. An interactive process

analysis under the ADA is irrelevant where an employee cannot identify any

positions suitable to constitute a reasonable accommodation.        The damage

remedy is improper under the ADA because 42 U.S.C. § 1981a(b)(2) excludes

back pay from available compensatory damages. Finally, the DRPA asserts

frivolous litigation sanctions are improper here.




                                                                          A-3324-17T2
                                       15
      In response, the FOP argues the award should be confirmed since it is

reasonably debatable, consistent with the CBA binding both parties, and not

susceptible to the statutory bases for judicial vacatur of a labor arbitration award.

On its cross-appeal, the FOP avers the DRPA routinely challenges arbitration

awards that are supposed to be final and binding, and that only monetary

sanctions for frivolous litigation will dissuade them. The FOP argues the DRPA

filed this action to vacate the arbitration award without justification or a

reasonable chance to prevail, entitling the FOP to an award of attorney's fees

and costs in the Chancery action.

                                         II.

      Our role "in reviewing arbitration awards is extremely limited." State v.

Int'l Fed'n of Prof'l & Tech. Eng'rs, Local 195, 169 N.J. 505, 513 (2001) (citing

Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)).

Arbitration awards are presumed to be valid. Local No. 153, Office & Prof'l

Emps. Int'l Union v. Trust Co. of N.J., 105 N.J. 442, 448 (1987). Accordingly,

we undertake "an extremely deferential review when a party to a collective

bargaining agreement has sought to vacate an arbitrator's award." Policemen's

Benevolent Ass'n, Local No. 11 v. City of Trenton, 205 N.J. 422, 428 (2011).

"Generally, when a court reviews an arbitration award, it does so mindful of the


                                                                             A-3324-17T2
                                        16
fact that the arbitrator’s interpretation of the contract controls." Borough of E.

Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201 (2013).

      "An appellate court's review of an arbitrator's interpretation is confined to

determining whether the interpretation of the contractual language is 'reasonably

debatable.'" N.J. Transit Bus Operations, Inc. v. Amalgamated Transit Union,

187 N.J. 546, 553-54 (2006) (quoting Local 195, 169 N.J. at 513). "Under the

'reasonably debatable standard,' a court reviewing [a public-sector] arbitration

award 'may not substitute its own judgment for that of the arbitrator, regardless

of the court’s view of the correctness of the arbitrator's position.'" Borough of

E. Rutherford, 213 N.J. at 201-02 (alteration in original) (quoting Middletown

Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 11 (2007)). If the

"interpretation of the contractual language" is "reasonably debatable in the

minds of ordinary laymen," then "the reviewing court is bound by the arbitrator's

decision." Selected Risks Ins. Co. v. Allstate Ins. Co., 179 N.J. Super. 444, 451

(App. Div. 1981) (quoting Ukrainian Nat'l Urban Renewal Corp. v. Joseph L.

Muscarelle, Inc., 151 N.J. Super. 386, 398 (App. Div. 1977)).

      Consistent with these principles, the New Jersey Arbitration Act, N.J.S.A.

2A:24-1 to -11, provides only four grounds for vacating an arbitration award:

            a. Where the award was procured by corruption, fraud
            or undue means;

                                                                           A-3324-17T2
                                       17
             b. Where there was either evident partiality or
             corruption in the arbitrators, or any thereof;

             c. Where the arbitrators were guilty of misconduct . . .
             prejudicial to the rights of any party; [or]

             d. Where the arbitrators exceeded or so imperfectly
             executed their powers that a mutual, final and definite
             award upon the subject matter submitted was not made.

             [N.J.S.A. 2A:24-8.]

A court may also vacate an award if it is contrary to public policy. Borough of

E. Rutherford, 213 N.J. at 202 (quoting Middletown Twp., 193 N.J. at 11).

      An arbitrator's "'acknowledged mistake of fact or law or a mistake that is

apparent on the face of the record'" is captured within 'undue means,' "whereas

an arbitrator exceeds his or her 'authority by disregarding the terms of the parties'

agreement.'" Borough of E. Rutherford, 213 N.J. at 203 (quoting Off. of Emp.

Rels. v. Commc'ns Workers of Am., 154 N.J. 98, 111-12 (1998)). Whether the

arbitrator exceeded his authority "entails a two-part inquiry: (1) whether the

agreement authorized the award, and (2) whether the arbitrator's action is

consistent with applicable law." Id. at 212.

      The party seeking to vacate an arbitration award bears the burden of

demonstrating wrongdoing on the part of the arbitrator. Tretina Printing, Inc. v.

Fitzpatrick & Assocs., 135 N.J. 349, 357 (1994); Minkowitz v. Israeli, 433 N.J.

                                                                             A-3324-17T2
                                        18
Super. 111, 136 (App. Div. 2013). Because a decision to vacate or confirm an

arbitration award is a decision of law, we review "the denial of a motion to

vacate an arbitration award de novo."         Minkowitz, 433 N.J. Super. at 136

(quoting Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010)).

      We discern no basis to vacate the arbitrator's award under the statute. We

reject the DRPA's position that the arbitrator misinterpreted the ADA or the

CBA, or exceeded her authority.

      The DRPA cites several federal cases for the proposition that an

interactive process analysis is irrelevant where an employee cannot identify any

positions suitable to constitute a reasonable accommodation.         Specifically,

DRPA directs our attention to Donahue v. Consolidated Rail Corp., where the

Third Circuit Court of Appeals recited "the Eleventh Circuit's observation that

'where a plaintiff cannot demonstrate "reasonable accommodation," the

employer's   lack   of   investigation    into   reasonable   accommodation       is

unimportant.'" 224 F.3d 226, 233 (3d Cir. 2000) (quoting Willis v. Conopco,

Inc., 108 F.3d 282, 285 (11th Cir. 1997)). Donahue goes on to clarify, however:

"an employer who acts in bad faith in the interactive process will be liable if the

jury can reasonably conclude that the employee would have been able to perform

the job with accommodations." Id. at 234-35 (quoting Taylor v. Phoenixville


                                                                           A-3324-17T2
                                         19
Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999)) (emphasis in original). Therefore,

the DRPA's reliance on Donahue is misplaced because the arbitrator, as the

finder of fact, reasonably concluded Boucher would have been able to perform

her duties with accommodations.

       We find the proffered language in Donahue does not control this case for

the following, additional reasons. First, although "elements of a claim under §

504(a)[2] of the Rehabilitation Act [3] are very similar to the elements of a claim

under Title I of the Americans with Disabilities Act," id. at 229, the fact remains

that Donahue was not an ADA case, but was a failure-to-transfer case under the

Rehabilitation Act.

       Furthermore, in acknowledging the similarities between the two acts, the

Donahue court cited to Taylor for the elements of a claim under the ADA.

Donahue, 224 F.3d at 229. In Taylor, the court detailed the elements a disabled

employee must demonstrate to show an employer failed to engage in the

interactive process as follows:

             1) the employer knew about the employee's disability;
             2) the employee requested accommodations or
             assistance for his or her disability; 3) the employer did
             not make a good faith effort to assist the employee in

2
    29 U.S.C. § 794.
3
    The Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to -796l.
                                                                           A-3324-17T2
                                       20
            seeking accommodations; and 4) the employee could
            have been reasonably accommodated but for the
            employer's lack of good faith.

            [184 F.3d at 319-20.]

With regard to the element of employer good faith, the Taylor court explained

summary judgment is typically precluded where there is a genuine dispute about

the employer's good faith because such a determination is properly accorded to

the trier of fact. Id. at 318. Therefore, under Taylor, a determination that an

employer failed to make a good faith effort in the interactive process is not legal,

but factual in nature. See also Williams v. Phila. Hous. Auth. Police Dep't, 380

F.3d 751, 772 (3d Cir. 2004) (recognizing the function of the fact finder includes

determinations of good faith in the interactive process).

      The arbitrator's factual findings are supported by the record.            Her

interpretation of the contractual language is reasonably debatable. Change in

shifts can be a reasonable accommodation. Colwell v. Rite Aid Corp., 602 F.3d

495, 505-06 (3d Cir. 2010). So too can light duty. By not engaging in an

interactive process with Boucher to learn the services she could perform and

whether she would be capable of working a different shift, the DRPA did not

make a good faith effort to assist Boucher in seeking accommodations.

Consequently, the DRPA did not engage in a good faith effort to reasonably


                                                                            A-3324-17T2
                                        21
accommodate Boucher.       Therefore, the DRPA has not met its burden of

demonstrating wrongdoing on the part of the arbitrator. Accordingly, the award

must be confirmed.

                                      III.

      We next address the denial of the FOP's application for an award of

attorney's fees and costs. The FOP asserts the DRPA routinely challenges final

and binding arbitration awards, and that only monetary sanctions for frivolous

litigation will dissuade them. Relying on non-precedential federal case law, the

FOP argues it was error to deny an award of attorney's fees and costs because

the DRPA's action to vacate the supplemental award was without justification

and had no reasonable chance of success. Ostensibly, the FOP claims the

DRPA's appeal was frivolous. We are unpersuaded by this argument.

      The arbitrator denied the FOP's application for an award of attorney's fees

and costs. The record does not demonstrate the FOP complied with the notice

requirements imposed by Rule 1:4-8(b)(1) for an award of fees and costs for

frivolous litigation under N.J.S.A. 2A:15-59.1. Failure to comply with the

notice requirements imposed by the rule bars an award of frivolous litigation

fees and costs. Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399,

406 (App. Div. 2001).


                                                                         A-3324-17T2
                                      22
      The trial court addressed the merits of the FOP's claim for frivolous

litigation sanctions. It declined to speculate about prior actions filed by the

DRPA to set aside arbitration awards, noting the facts involved in those prior

actions were not before the court. Rather, the court assessed the facts and legal

issues present in this case and concluded the DRPA had a right to challenge the

award and the decision to do so was not arbitrary or frivolous. We discern no

basis to overturn that decision. The issues raised by the DRPA regarding its

duties under the ADA appear to be of first impression in this State. The DRPA

also asserted it properly denied to accommodate Boucher by assigning her to

light duty because no such light duty position was available. We do not view

these positions to be without justification or reasonable chance to prevail, or

otherwise frivolous.

      The ADA is a fee-shifting statute that permits the award of reasonable

counsel fees and costs to a prevailing party in any court action or administrative

proceeding. 42 U.S.C. § 12205. The FOP argues the trial court should have

awarded attorney's fees and costs in the Chancery Division action because it

"essentially shared the status of 'prevailing party' with Officer Boucher." We

are unpersuaded by this argument. The FOP did not assert a claim under the

ADA for an award of attorney's fees and costs in its counterclaim or during oral


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argument on its motion. We adhere to the well-settled principle that an issue or

claim not presented to the trial court will not be considered on appeal. Zaman

v. Felton, 219 N.J. 199, 226-27 (2014); Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973). We decline to address the FOP's claim for counsel fees and

costs under the ADA.

      The FOP's remaining arguments lack sufficient merit to warrant extensive

discussion in a written opinion. R. 2:11-3(e)(1)(E). The FOP is not entitled to

an award of attorney's fees under the terms of the CBA or any other court rule

or statute. Therefore, the FOP must bear the cost of its own attorney's fees and

costs in this matter. See R. 4:42-9(a); Pressler & Verniero, Current N.J. Court

Rules, cmt. 1 on R. 4:42-9 (2019). The trial court properly denied the FOP's

application for an award of attorney's fees and costs.

      Affirmed.




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