                        NOT FOR PUBLICATION WITHOUT THE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-3223-15T4


SANDRA ROOPCHAND,

        Plaintiff-Appellant,

v.

COMPLETE CARE, n/k/a FASTCARE,
ROBERT J. FALLON, D.C., and
RICHARD J. SCHALLER, M.D.,

     Defendants-Respondents.
_____________________________


              Argued May 16, 2017 — Decided August 3, 2017

              Before Judges Reisner, Koblitz and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-3654-
              14.

              Edward F. Szep argued the cause for appellant
              (Law Offices of Emanuel S. Fish, attorneys;
              Mr. Szep and Emmanuel S. Fish, on the briefs).

              Joshua L. Weiner argued the cause for
              respondents Complete Care and FastCare (Budd
              Larner, P.C., attorneys; Mr. Weiner, of
              counsel and on the brief).

              James P. Nolan and Associates, attorneys for
              respondents Robert J. Fallon and Richard J.
          Schaller, join in the brief of respondents
          Complete Care and FastCare.


PER CURIAM

     Plaintiff Sandra Roopchand, a medical technician, appeals

from the grant of summary judgment to defendants Complete Care

(later known as FastCare) and its former owners, Dr. Richard J.

Schaller, M.D. and Dr. Robert Fallon, D.C.     Plaintiff sued the

doctors alleging a pregnancy discrimination claim under the New

Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12(s).   She

was terminated, ostensibly for insubordination, after refusing

three times to wash windows on the second floor of the clinic.

After reviewing the allegations in the light most favorable to

plaintiff, we reverse.

     Plaintiff worked at the medical office for urgent care,

primary care, rehabilitation, and chiropractic care, from January

2013 until her termination in July 2014.    At the time plaintiff

was hired, Complete Care was owned by doctors Schaller and Fallon,

brothers-in-laws, who had formed the business in 1997. The doctors

also owned the building that housed Complete Care.

     In January 2014, they sold their practice in preparation for

retirement.   The practice was renamed FastCare, and renovations

were undertaken to expand the primary-care practice by converting

the second floor, which had previously been used for billing, into


                            2                              A-3223-15T4
an area for patient care.     The new owner also decided to reduce

the staff by firing the registered nurses (RNs).

     Dr. Schaller and Dr. Fallon retained ownership of the building

and remained operations managers for the practice.            Although Dr.

Fallon noted that an office manager was on site to handle hiring

people, Dr. Schaller stated that he and Dr. Fallon remained in

charge of staffing, including hiring and firing.

     Plaintiff's     duties   included     both   patient       care    and

administrative     duties.    Plaintiff    described    her    duties     as

including:

          patient care, collecting copays, checking
          patients in, collecting any balances due,
          updating demographic information. . . .
          triaging patients . . . [t]aking their chief
          complaints, doing vitals, completing any blood
          work   ordered,   EKGs   ordered,    preparing
          specimens to be sent out to the lab, glucose
          testing.

Plaintiff also restocked and cleaned the exam rooms.              Part of

cleaning the exam rooms included cleaning up vomit, feces, or

blood from the rooms or the patients' bathroom.        Her normal duties

did not include cleaning windows.         At the time she was hired,

plaintiff worked part-time and was paid $13.50 per hour.           By July

2014, plaintiff was paid $15 an hour and worked between thirty-

six and thirty-nine hours a week.   Plaintiff worked a set schedule

of twelve-hour shifts on Monday through Wednesday, with Thursdays

and Fridays off.

                              3                                    A-3223-15T4
     During her employment, plaintiff was never disciplined.     Dr.

Fallon stated that he did not have issues with plaintiff's job

performance prior to the day she was terminated.       Dr. Schaller

agreed she was a good worker.     Through most of her employment,

plaintiff worked primarily with Dr. Schaller, although she would

occasionally do administrative tasks for Dr. Fallon if he asked,

such as "pull[ing] up patient's records" or "checking in patients."

     After the RNs were fired, plaintiff was asked to take on

additional responsibilities such as "calling in prescriptions,

taking care of refills, receiving blood work results, [and] calling

patients with results." She was also asked to serve as the medical

technician for the second-floor expansion, working for Dr. Henry,

the new primary care physician.

     We review the following facts, some of which are disputed,

in a light most favorable to plaintiff.   R. 4:46-2(c).   Plaintiff

learned she was pregnant in the beginning of July 2014. Plaintiff,

who had been diagnosed with hypothyroidism in 2005, knew that the

pregnancy was high-risk because of her condition.    The pregnancy

was confirmed by her doctor, a high-risk specialist.

     On Thursday, July 24, 2014, plaintiff told Dr. Schaller she

was pregnant. During their first conversation about her pregnancy,

plaintiff told Dr. Schaller that she "was spotting and . . . had




                            4                               A-3223-15T4
to go to the doctor."   Dr. Schaller congratulated plaintiff on her

pregnancy and permitted her to go to the doctor's appointment.

     When she returned to work after the doctor's visit, plaintiff

told Dr. Schaller that she had a high-risk pregnancy and had to

see her obstetrician weekly.     By Monday, July 28, defendants had

created a schedule for August 2014 in which plaintiff's hours were

reduced to part-time.   That week the second-floor expansion opened

and plaintiff was assigned to be the medical technician for that

floor.

     On the morning of Tuesday, July 29, 2014, plaintiff informed

Dr. Fallon when she arrived at work that she was pregnant.       Dr.

Fallon told her that he had already found out that morning, and

congratulated her.   Plaintiff did not tell Dr. Fallon at the time

that her pregnancy was high-risk, but she assumed Dr. Schaller had

passed along this information.

     That same morning, plaintiff overheard a conversation between

Drs. Fallon and Schaller that she initially did not consider

important.   She heard Dr. Schaller say to Dr. Fallon, "I don't

care, she's a liability."   She said she did not hear anything else

but noted they started "talking lower at that point."   She did not

know at the time who they were talking about, but later inferred

that they were talking about her.




                             5                              A-3223-15T4
     The office was crowded with many patients that day.     Because

plaintiff was working upstairs in the newly-renovated part of the

office, she was required to go up and down between the first and

second floor.    Dr. Fallon was on the second floor on a stepladder

changing ballasts and water-stained ceiling tiles to ready the

space for patients.    A rehab technician who often worked with Dr.

Fallon was cleaning the elevator.

     Dr. Fallon stated in his deposition that although FastCare

employed a cleaning service who came four nights a week, he had

suspended the cleaning crew services to the second-floor because

of the ongoing construction.

     While plaintiff was busy working with a new patient who needed

bloodwork and X-rays, Dr. Fallon came up to her and asked her to

wash the windows on the second floor.     She told him, "I don't do

windows."    When asked why she said that, plaintiff responded:

            A. I honestly thought he was playing around.
            I didn't think he was serious.

            Q. Why did you think he was playing around?

            A.   Because  it's   not   part   of  my   job
            description, number one. Number two, it's not
            something that anyone has ever asked me to do
            before nor have I seen anyone working there
            do before. So I really thought he was playing.
            We didn't have any type of disagreement early
            that morning. You know, we weren't, like, had
            any tension between each other or anything
            like that.   So, you know, there were times
            where we did joke and play around.      I said


                              6                              A-3223-15T4
          that and I     kept     moving.     I   went   back
          downstairs.

     Plaintiff also thought Dr. Fallon was "kidding" because he

knew she was pregnant and "he knew [she] was high risk and [she]

would have to get on a ladder."        Plaintiff, who is 5'1", would

need a ladder to clean the floor to ceiling windows.1

     About ten minutes later, Dr. Fallon again asked plaintiff to

wash the windows.   Dr. Fallon had called the rehab tech over to

listen to the conversation.       Plaintiff again responded, "I don’t

wash windows, you know."      Dr. Fallon responded, "you will if I

order you to." In addition to the rehab tech, four other employees

were upstairs and heard the exchange.

     Plaintiff then "looked at . . . all of them because they were

looking at [her] and [she] said, did ya'll ever clean, did he ever

ask ya'll to clean windows and they [were] like no."            When she

came back upstairs a third time, Dr. Fallon told her "I'm going

to ask you one last time, are you going to wash those windows or

not."   Plaintiff replied no, that she could call somebody to do

it for him, but she was not washing the windows. Plaintiff offered

to decorate the bathroom, which she stated was already "clean."

She was embarrassed by the confrontation in front of her co-workers

and believed he was "picking on [her]."       Plaintiff never raised


1
  Defendants dispute that a ladder would have been required for
plaintiff to clean the windows.
                              7                                  A-3223-15T4
her voice nor used inappropriate language in speaking to Dr.

Fallon.

     Dr. Fallon fired her for insubordination and told her to "get

out."   Dr. Fallon acknowledged that he did not warn plaintiff that

if she did not wash the windows he was going to fire her.                     After

Dr. Fallon fired her, plaintiff went downstairs and spoke with Dr.

Schaller, who told her to go home and he would call her later.

Plaintiff texted Dr. Schaller the following day; he responded that

her termination was final.

     Prior to this incident, plaintiff had never before been asked

to clean windows, nor was she aware of any other employee who was

asked to clean windows.        Both parties agree that defendants did

not have a written policy as to what constituted insubordination.

According   to    plaintiff,   a    non-pregnant      former   employee       named

Lillian,    who   frequently   argued      forcefully     with       Dr.   Fallon,

including    telling    him    to      "shut   up,"    was     not    fired     for

insubordination.

     After she was fired, plaintiff successfully appealed the

denial of unemployment benefits.           Although in no way binding on

this court, it is interesting to note that the Appeal Tribunal

found after a telephonic hearing: "Had the doctor informed the

claimant that her refusal to comply with the directive would result

in her termination she would have informed him she was refusing


                                   8                                       A-3223-15T4
because of her high risk pregnancy."           The Tribunal determined: "No

disqualification arises under N.J.S.A. 43:21-5(b) as the claimant

was not discharged for misconduct connected with the work."

      In his decision, the motion judge stated defendants offered

the   "legitimate,       non-discriminatory          reason       .       .     .    [of]

insubordination" for her termination and plaintiff could offer "no

support"   that    defendants'         claim   was    a    "pretext            for     the

termination."     The judge found that plaintiff's assumption that

one doctor told the other doctor that her pregnancy was high-risk

or that she could not wash the windows due to alleged high-risk

pregnancy was an assumption without any supporting facts.                              The

judge also mistakenly stated that "there is no evidence whatsoever

that Dr. Fallon even knew of [plaintiff's] pregnancy prior to

terminating her employment."

      The judge also found that although the LAD requires that both

the   employee     and    employer        participate      in         a       reasonable

accommodation     process,   the       plaintiff   had    never       asked      for    an

accommodation, so this issue was moot.                The judge stated that

although plaintiff alleged that her pregnancy was high-risk due

to hypothyroidism, "she did not have any work restriction due to

her pregnancy, and at no time told [the defendants] that she had

any work restrictions."




                                   9                                             A-3223-15T4
     Summary   judgment     must    be   granted   "if   the   pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact challenged and the movant is entitled

to a judgment or order as a matter of law."          R. 4:46-2(c).     Our

"review of the trial court's grant of summary judgment is de novo,

employing the same standard used by the trial court."           Tarabokia

v. Structure Tone, 429 N.J. Super. 103, 106 (App. Div. 2012),

certif. denied, 213 N.J. 534 (2013).         We must "view the facts in

the light most favorable to the non-moving party."             Estate of

Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

     Effective January 17, 2014, the Legislature modified the LAD

to   incorporate   "pregnancy"      as   a   protected   characteristic.

N.J.S.A. 10:5-12(s); N.J.S.A. 10:5-3.1(b), the Pregnant Workers

Fairness Act (PWFA).      The Legislature also required employers to

make reasonable accommodation to a pregnant employee and noted its

intention:

          to combat this form of discrimination by
          requiring employers to provide reasonable
          accommodations to pregnant women and those who
          suffer medical conditions related to pregnancy
          and childbirth, such as bathroom breaks,
          breaks for increased water intake, periodic
          rest, assistance with manual labor, job
          restructuring or modified work schedules, and
          temporary transfers to less strenuous or
          hazardous work.

          [N.J.S.A.    10:5-3.1(b) (emphasis added).]

                               10                                 A-3223-15T4
     The amendment to the LAD makes it unlawful "[f]or an employer

to treat, for employment-related purposes, a woman employee that

the employer knows, or should know, is affected by pregnancy in a

manner less favorable than the treatment of other persons not

affected by pregnancy but similar in their ability or inability

to work." N.J.S.A. 10:5-12(s).2 N.J.S.A. 10:5-12(s) also requires

an employer to:

          make available to the employee reasonable
          accommodation in the workplace . . . for needs
          related to the pregnancy when the employee,
          based on the advice of her physician, requests
          the accommodation, unless the employer can
          demonstrate that providing the accommodation
          would be an undue hardship on the business
          operations of the employer.

     When analyzing a claim under the LAD that addresses the

employer's   intention,   "New    Jersey   has   adopted   the   procedural

burden-shifting methodology articulated in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)."

Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005).

     Under this methodology, a plaintiff must first present a

prima facie case of discrimination and may use circumstantial




2
  Prior to enactment of this law, the LAD was interpreted to
prohibit discrimination against pregnant employees as gender
discrimination. See Rendine v. Panter, 141 N.J. 292, 298 (1995);
Farley v. Ocean Twp. Bd. of Educ., 174 N.J. Super. 449, 452 (App.
Div.), certif. denied, 85 N.J. 140 (1980); Gilchrist v. Bd. of
Educ., 155 N.J. Super. 358, 368 (App. Div. 1978).
                                 11                                 A-3223-15T4
evidence.    Ibid.    "The evidentiary burden at the prima facie stage

is   'rather    modest:     it    is    to    demonstrate          to   the     court    that

plaintiff's factual scenario is compatible with discriminatory

intent--i.e.,       that    discrimination          could     be    a   reason     for   the

employer's action.'"         Ibid. (quoting Marzano v. Computer Science

Corp., 91 F.3d 497, 508 (3d Cir. 1996)).                            "Once a plaintiff

establishes a prima facie case, an 'inference of discrimination'

is created." Tisby v. Camden Cnty. Corr. Facility, 448 N.J. Super.

241, 248-49 (App. Div.) (quoting Zive, supra, 182 N.J. at 449),

certif. denied, ___ N.J. ___, ___ (2017).

      The   employer       then   has       the   opportunity       to       challenge   the

inference      of   discrimination           by     articulating         a    "legitimate,

nondiscriminatory reason for the employer's action."                           Zive, supra,

182 N.J. at 449.            "If the employer can meet its burden [of

production], the burden again shifts back to the employee to prove

the reason provided by the employer is "merely a pretext for

discrimination       and    not   the        true    reason    for       the    employment

decision."      Tisby, supra, 448 N.J. Super. at 249 (quoting Zive,

supra, 182 N.J. at 449).

      At the third step, a plaintiff may put forth evidence that

the reason offered by the employer was pretextual by "either

circumstantial or direct evidence that 'discrimination was more

likely than not a motivating or determinative cause of the action'


                                       12                                           A-3223-15T4
or plaintiff can discredit the legitimate reason provided by the

employer."   Id. at 249 (quoting El-Sioufi v. St. Peter's Univ.

Hosp., 382 N.J. Super. 145, 173 (App. Div. 2005)).   "[T]he burden

of proving that the employer intentionally discriminated remains

at all times with the employee."   Maryanne Grande v. Saint Clare's

Health Sys., ___ N.J. ___, ___ (2017) (slip op. at 19-20).

     The elements of the prima facie test vary depending on the

nature of the LAD claim.    Victor v. State, 203 N.J. 383, 408

(2010).   In Zive, our Supreme Court set out a general test for

termination cases, in which a plaintiff must prove that:

          (1) he [or she] was in the protected group;
          (2) he [or she] was performing his job at a
          level that met his [or her] employer's
          legitimate expectations; (3) he [or she]
          nevertheless was fired; and (4) the employer
          sought someone to perform the same work after
          he [or she] left.

          [Zive, supra, 182 N.J. at 450; see also
          Rendine v. Pantzer, 276 N.J. Super. 398, 434-
          35 (1994), aff'd, 141 N.J. 292 (1995)
          (relating the burden-shifting scheme in a LAD
          termination      case      for      pregnancy
          discrimination).]

Defendants do not argue that prong four, hiring a replacement, is

applicable here. Prong four has also been articulated as requiring

a plaintiff to prove "she was terminated under circumstances that

give rise to an inference of unlawful discrimination."     Young v.

Hobart W. Grp., 385 N.J. Super. 448, 463 (App. Div. 2005) (citing



                            13                              A-3223-15T4
Williams v. Pemberton Twp. Pub. Sch., 323 N.J. Super. 490, 733

(App. Div. 1999)).

     Viewing her contentions in the light most favorable to her,

plaintiff made out a prima facie case for disparate treatment

under the PWFA because: 1) she was part of the protected class of

pregnant workers and her employers knew of her pregnancy; 2) she

was performing her work responsibilities; 3) she suffered the

adverse employment action of being demoted to part-time status,

ordered to wash windows, and then fired; and 4) she was required

to perform an act outside the scope of her job description, that

other non-pregnant employees were not required to perform, thus

raising an inference of unlawful discrimination.

     Plaintiff asserts that defendants' proffered reason for her

termination was pretextual: that her refusal to use a ladder to

clean windows, when pregnant, does not constitute insubordination.

     Plaintiff    also   argues    that    she   requested   a   reasonable

accommodation due to her high-risk pregnancy.            On Thursday, July

24, 2014, she requested the accommodation from Dr. Schaller seeking

permission to see her doctor once a week based on her doctor's

advice.   She maintains she was penalized for the request.

     Defendants    respond   that     plaintiff     never    requested      a

reasonable   accommodation    for    her    pregnancy.    They   note   that

plaintiff at no point stated that she had restrictions based on


                              14                                    A-3223-15T4
her pregnancy.       Defendants add that even if plaintiff did make a

reasonable accommodation request, the request was not based on the

advice of her physician, which they claim is required under the

PWFA.    Regardless of whether plaintiff, in seeking to go to her

doctor     weekly      made         a     legally            sufficient      request        for     an

accommodation or not, she did present a prima facie case of

pregnancy discrimination.

     She submitted sufficient evidence for a reasonable jury to

infer    that      her        termination               was    a    pretext       for      unlawful

discrimination. Plaintiff argues that she did ask for a reasonable

accommodation       from       Dr.       Schaller         based     on     the   advice      of   her

physician;      that          the       work        responsibilities             of    a     medical

assistant/technician            do       not       include      climbing     ladders        to    wash

windows;     and    that        Dr.       Fallon          knew      that    she       required      an

accommodation in particular because her pregnancy was high-risk.

     Viewing       plaintiff's            claim         in    its   most     favorable        light,

shortly after she informed the doctors that she was pregnant, she

heard them whispering that she was a liability.                                   Later, she was

the only employee asked to stand on a ladder and wash windows, and

was terminated for her refusal to do so, although another, non-

pregnant    employee          who       was    persistently          insubordinate          was   not

fired.     Regardless of whether plaintiff's request to visit her

doctor     weekly        is     viewed             as    a     doctor-directed             pregnancy


                                              15                                             A-3223-15T4
accommodation,   plaintiff   demonstrated   sufficient   evidence    of

pregnancy discrimination to survive summary judgment.

    Reversed.




                             16                               A-3223-15T4
