                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0102-17T2

MARY RICHTER,

      Plaintiff-Appellant/
      Cross-Respondent,                    APPROVED FOR PUBLICATION

                                                  June 11, 2019
v.
                                              APPELLATE DIVISION
OAKLAND BOARD OF
EDUCATION,

      Defendant-Respondent/
      Cross-Appellant,

and

GREGG DESIDERIO, Individually
and as Principal of the Valley
Middle School,

     Defendant-Respondent.
______________________________

            Argued February 4, 2019 – Decided June 11, 2019

            Before Judges Sabatino, Sumners and Mitterhoff.

            On appeal from Superior Court of New Jersey, Law
            Division, Passaic County, Docket No. L-0742-15.

            Gerald J. Resnick argued the cause for
            appellant/cross-respondent (Resnick Law Group, PC,
            attorneys; Gerald J. Resnick, on the briefs).
            Betsy Gale Ramos argued the cause for
            respondent/cross-appellant (Capehart & Scatchard,
            PA, attorneys; Betsy Gale Ramos and Voris M.
            Tejada, on the briefs).

            Aileen F. Droughton argued the cause for respondents
            Oakland Board of Education and Gregg Desiderio
            (Traub Lieberman Straus & Shrewsberry LLP,
            attorneys; Aileen F. Droughton, of counsel and on the
            brief; Benjamin L. Rouder, on the brief).

      The opinion of the court was delivered by

SUMNERS, J.A.D.

      This matter presents several questions for us to decide. On appeal, the

first issue is whether an employee alleging disability discrimination for failure

to accommodate under the New Jersey Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49, is required to establish an adverse employment action

to avoid summary judgment dismissal. We also must determine whether the

motion judge erred in denying the employee's cross-motion for summary

judgment.   In the event we determine there is no requirement to establish

adverse employment action, the issue on cross-appeal is whether a bodily

injury claim arising from the failure to accommodate allegation should be

dismissed because it is barred by the exclusive remedy provision of the

Workers' Compensation Act (the Compensation Act), N.J.S.A. 34:15-1 to -146.

In addition, we must decide whether medical bills and lost wages can be




                                                                         A-0102-17T2
                                       2
introduced at trial, and if any worker's compensation lien should be applied to

any award in plaintiff's favor.

      Plaintiff Mary Richter, a middle school teacher who suffers from

diabetes, alleges she fainted while teaching due to low blood sugar levels when

she was unable to eat lunch at an earlier class period and suffered significant

and permanent injuries. She contends the accident would not have occurred

had defendants Oakland Board of Education (the Board) and Gregg Desiderio

granted her accommodation request to eat lunch earlier. The motion judge

granted defendants' motion for summary judgment dismissing Ri chter's

complaint, denied Richter's cross-motion for summary judgment, and denied

reconsideration of the dismissal.   The judge held that as a matter of law,

Richter failed to prove a prima facie case of failure to accommodate her

disability because she did not establish an adverse employment action. Thus,

her bodily injury claim, which is the subject of the Board's cross-appeal, was

denied as moot.

      Under the circumstances of this case, we reverse the motion judge's

grant of summary judgment dismissing Richter's complaint. Based on our

consideration of Supreme Court decisions in Victor v. State, 203 N.J. 383

(2008) and Royster v. N.J. State Police, 227 N.J. 482 (2017), we conclude that

Richter need not demonstrate an adverse employment action to establish a



                                                                       A-0102-17T2
                                      3
prima facie case of a failure to accommodate claim under the LAD. Because

there were genuine issues of material facts concerning whether Richter was

provided an accommodation and whether the accommodation was adequate,

which must be determined at a trial, we affirm the denial of Richter's cross-

motion for summary judgment. As to the Board's cross-appeal, we conclude

the Compensation Act does not bar Richter's bodily injury claim, but should

she prevail at trial, the Board should receive a credit based on the amount it

paid in her workers' compensation claim in accordance with N.J.S.A. 34:15-40

(section 40).

                                      I

      Richter, a Type I Diabetic, is employed by the Board as a science

teacher at Valley Middle School (VMS). VMS's academic calendar is divided

into four marking periods. Each school day consists of eight class periods.

Student lunch periods are during the fifth and sixth periods, which take place

between 11:31 a.m. to 1:02 p.m. Teachers are assigned to supervise students

during lunch, designated as cafeteria duty. Thus, some teachers are scheduled

to have their lunch from 1:05 p.m. to 1:49 p.m., during seventh period. They

are also assigned other non-teaching responsibilities, such as hall duty and

health office duty.




                                                                      A-0102-17T2
                                      4
      At the beginning of the 2012/2013 school year, Richter received her

schedule, in which she was assigned to cafeteria duty on Wednesdays and

Thursdays during fifth period, followed by teaching a class during sixth period

and having her lunch during seventh period. Richter believed that waiting

until seventh period, which began at 1:05 p.m., to eat a meal would have a

negative effect on her blood sugar levels due to the medications she takes for

her diabetes. Therefore, she asked Desiderio, the VMS principal, to have her

schedule adjusted so that she could have lunch during the earlier fifth period.

Desiderio responded that he would "look into it."

      After Desiderio failed to contact her, Richter sent a follow-up email on

September 10, 2012, reiterating her need for a schedule change because of her

medical condition. It was not until Richter sent another email that Desiderio

responded by stating he would look into her request, but cautioned he could

not "undo what he did."      Thus, during the first marking period, Richter

maintained her fifth-period cafeteria duty for two days a week. With her lunch

delayed until seventh period, she ingested glucose tablets during sixth period

to maintain her blood sugar levels.

      When plaintiff received her schedule for the second marking period, her

lunch was scheduled for the fifth period every school day – which satisfied her

request for an earlier lunch. This, however, changed for the third marking



                                                                       A-0102-17T2
                                       5
period, when she was scheduled for cafeteria duty and teaching science

respectively during the fifth and sixth periods on Tuesdays with her lunch set

for seventh period that day. Richter immediately approached Desiderio to

remind him of her need to have lunch during fifth period, as she had

throughout the second marking period. He verbally told her that he needed her

for cafeteria duty because three teachers had to be assigned to the duty. He

then suggested that if she was not feeling well, she should sit down to have a

snack, and return to cafeteria duty when she was feeling better. The VMS vice

principal told her she should skip cafeteria duty.           Her union president

instructed her that she would not be disciplined for skipping cafeteria duty.

      Under the impression that the school's official schedule would have to be

revised in writing, Richter believed she was still obligated to remain on

cafeteria duty during fifth period on Tuesdays.       Desiderio never directed

anyone in the school's office to change Richter's schedule, or otherwise noted

anywhere that her scheduled lunch period on Tuesdays changed from Seventh

period to fifth period to accommodate her medical condition. Consequently,

Richter's blood sugar levels on Tuesdays often fell below the normal range as

she approached the end of her sixth period class, requiring her to ingest three

or more glucose tablets to try to keep her sugar elevated.




                                                                         A-0102-17T2
                                        6
      Unfortunately, on Tuesday, March 5, 2013, towards the end of the sixth

period, despite ingesting glucose tablets throughout the period, Richter

suffered a hypoglycemic event in front of her students. She had a seizure and

became unconscious causing her to strike her head and face on a lab table and

the floor, and to bleed extensively. She was transported to the hospital for

treatment. Even though she had minor hypoglycemic events at school in the

past, she had never passed out at school.

      After the accident, Desiderio sent a number of text messages to Richter

telling her that he previously told her not to attend cafeteria duty on Tuesdays.

When she again asked Desiderio to make some documented change in her

schedule, he placed an X on her schedule where it indicated she had cafeteria

duty during fifth period on Tuesdays.

      From her fall, Richter suffered the following serious and permanent

injuries: total loss of smell; 1 meaningful loss of taste; dental and facial trauma;

tinnitus; insomnia; tingling in her fingers; extraction of her right front tooth;

implantation of a dental bridge, and bone grafts; altered speech; pain in neck

and radiation to posterior shoulder; paranesthesia and dysesthesias; post -

concussion syndrome; vertigo; dizziness; severe emotional distress; and


1
  Because of her inability to smell, Richter had to request gas monitors in her
classroom.


                                                                           A-0102-17T2
                                         7
decreased life expectancy. She lost sick days and incurred significant dental

costs not covered by her insurance.

      As a result of her work-related injuries, Richter filed a workers'

compensation claim.      The Board paid $18,940.94 for her medical bills,

$9,792.40 for temporary disability benefits and $77,200 for the permanent

injuries she suffered.

      Richter sued the Board and Desiderio, individually and as principal of

the school, alleging disability discrimination in violation of the LAD due to

their alleged failure to accommodate her medical condition.      The Board's

initial motion for partial summary judgment to dismiss Richter's bodily injury

claim as being barred by the Compensation Act was denied on July 10, 2015.

In an oral decision, the motion judge, citing Laidlow v. Hariton Mach. Co.,

Inc., 170 N.J. 602 (2002), held that under the Compensation Act's intention al

wrong exception, Richter's LAD bodily injury claim was not barred.

      Thereafter, both defendants moved for summary judgment to dismiss

Richter's complaint with prejudice, claiming Richter did not establish a prima

facie LAD claim of disability discrimination for failure to accommodate

because she suffered no adverse employment action. Richter cross-moved for

summary judgment claiming she suffered an adverse employment action to

establish a prima facie LAD claim. The Board then re-filed their summary



                                                                      A-0102-17T2
                                      8
judgment motion to dismiss the bodily injury claim, or in the alternative, be

entitled to a 100% credit for all the money paid to Richter through her workers'

compensation claim and barring her medical bills and lost wages from being

presented at trial.

      On May 5, 2017, a different motion judge granted defendants' motion for

summary judgment dismissing Richter's LAD complaint and ruled that the

motion to dismiss the bodily injury claim was denied as moot. Concurrently,

plaintiff's cross-motion was denied.

      In her written decision, the judge noted that "the New Jersey Supreme

Court may later decide to strike 'adverse employment action' as a distinct

element in a failure to accommodate claim, [but] it has not yet done so," and

held that adverse employment action remains a required element to make a

prima facie case of failure to accommodate under the LAD. Because Richter

was not fired or reassigned to another position, the judge determined she could

not establish a prima facie case of adverse employment action. In addition, the

judge asserted that even though plaintiff's injuries were unfortunate, they were

not due to defendants' action because it was Richter's personal decision to

continue attending cafeteria duty on Tuesdays rather than eating.

      Richter moved for reconsideration. In the event the motion was granted,

the Board cross-moved for reconsideration of the denial of dismissal of



                                                                        A-0102-17T2
                                       9
Richter's bodily injury claim with prejudice, or in the alternative, a 100 %

credit for the workers' compensation payments. Ruling on the papers, the

judge denied Richter's motion and issued a written decision finding there was

no merit to her LAD claim because by failing to establish she suffered an

adverse employment action, a prima facie failure to accommodate claim was

not made. The judge reiterated her prior decision by declaring the Boa rd's

cross-motion as moot. This appeal and cross-appeal followed.

                                       II

      We begin with Richter's contention that the motion judge erred in

granting summary judgment dismissal of her LAD claim as a matter of law

because she presented no evidence that she suffered an adverse employment

action due to Desiderio's failure to reasonably accommodate her diabetes

disability by giving her an earlier lunch period to avoid a decrease of her blood

sugar levels. In support, she relies upon Victor; Royster; Model Jury Charges

(Civil), 2.21, "The New Jersey Law Against Discrimination ("NJLAD")

(N.J.S.A. 10:5-1[to -42])" (approved May 2003); Model Jury Charges (Civil),

2.26, "Failure to Accommodate Employee with Disability Under the [NJLAD]"

(approved Feb. 2013); and N.J.A.C. 13:13-1.1 to -2.5(b).2


2
  Richter's reliance upon N.J.A.C. 13:13-1.1 to -2.5(b) regarding adverse
employment actions are without sufficient merit to warrant discussion in a
                                                               (continued)

                                                                         A-0102-17T2
                                       10
      This court reviews de novo a ruling on a motion for summary judgment,

applying "the same standard governing the trial court[.]" Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 405 (2014). We consider, as the motion

judge did, "whether the competent evidential materials presented, when viewed

in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995)). "If there is no genuine issue of material fact," then we

must "decide whether the trial court correctly interpreted the law." DepoLink

Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333

(App. Div. 2013) (citation omitted).    We accord no deference to the trial

judge's legal conclusions.   Nicholas v. Mynster, 213 N.J. 463, 478 (2013)

(citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)).

                                       A.

      With these summary judgment guidelines in mind, we conclude Richter's

LAD claim should not have been dismissed on summary judgment because

based on the circumstances before us, there was no obligation that she

(continued)
written opinion. R. 2:11-3(e)(1)(E). The regulations do not address whether a
plaintiff is required to prove an adverse employment action to sustain a LAD
failure to accommodate claim.



                                                                       A-0102-17T2
                                       11
establish an adverse employment action to sustain her LAD claim of failure to

accommodate her disability.

      We start our analysis with Victor, where Justice Helen E. Hoens, writing

the decision for the unanimous Court, gave a thorough and thoughtful

examination of the LAD by our courts and the related Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213, by federal courts, in

considering "whether an adverse employment consequence is an essential

element of a plaintiff's claim that his employer discriminated against him by

failing to accommodate his disability." 203 N.J. at 388. The plaintiff, a New

Jersey State Trooper, requested administrative duty because he claimed a back

injury made it difficult for him to wear a protective vest that was required to

be worn during full-duty activity. Id. at 389, 391-92. He did not produce any

medical documentation to support his request, so his station commander – after

consulting the New Jersey State Police (NJSP) Director of Medical Services –

denied the request and ordered him to perform full-duty activity during a four-

hour period.    Id. at 391-92, 412.        The plaintiff's claim of failure to

accommodate his disability was among several discrimination claims he later

made against the NJSP, but was the only claim addressed in Victor. Id. at 389-

90.




                                                                       A-0102-17T2
                                      12
       The Court acknowledged that an adverse employment action has

generally been recognized as an element of a prima facie case of disability

discrimination for failure to accommodate, but stressed "[i]dentifying the

elements of the prima facie case that are unique to the particular discrimination

claim is critical to its evaluation[,]" because "[d]isability discrimination claims

are different from other kinds of discrimination claims, for several reasons."

Id. at 410. Yet, the Court acknowledged, "the LAD does not directly answer

the question" of whether a plaintiff must prove adverse employment action

"because its reasonable accommodation protections are not explicit." Id. at

412.

       Commenting on our state's published decisions determining "adverse

employment consequence as one element of the prima facie case for disability

discrimination," the Court stressed:

            Those opinions do so, however, in part because they
            recite the familiar elements consistent with any
            employment discrimination case, and in part because
            the factual setting of each case included an adverse
            job consequence. For example, this Court has touched
            on the question of reasonable accommodations, but
            only as to an employee who contended that the failure
            to accommodate resulted in termination, making
            separate consideration of adverse employment
            consequence irrelevant. See Raspa [v. Office of
            Sheriff of Cty. of Gloucester, 191 N.J. 323, 327, 340
            (2007)] (recognizing that some employment positions
            have requirements similar to the bona fide
            occupational qualifications set forth in federal law that

                                                                          A-0102-17T2
                                        13
             impact on reasonable accommodation analysis);
             Potente [v. Cty. of Hudson, 187 N.J. 103, 111 (2006)]
             (concluding that employee may not raise LAD claim if
             he or she has refused to engage in interactive dialogue
             respecting potential accommodations).

             [203 N.J. at 413.]

       On the other hand, the Court recognized that Seiden v. Marina Assocs.,

315 N.J. Super. 451, 459-61 (Law Div. 1998), "seems to equate [that] the

failure to accommodate with an unlawful employment practice, is included as

part of the court's explanation about why the McDonnell Douglas 3 burden-

shifting framework is not useful [and unnecessary] in the context of a failure to

accommodate claim." Id. at 413-14. The Court also found it significant in

Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 400-01 (App.

Div. 2002), where in "a disability discrimination claim based on an employer's

failure to engage in the interactive accommodation process, in which [this]

court did not include the requirement that the employee suffer an adverse

employment consequence." Id. at 414.

       Given the LAD's broad remedial purposes, the Court believed that it was

time to

             chart a course to permit plaintiffs to proceed against
             employers who have failed to reasonably

3
    McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).



                                                                         A-0102-17T2
                                       14
               accommodate their disabilities or who have failed to
               engage in an interactive process even if they can point
               to no adverse employment consequence that
               resulted.[4] Such cases would be unusual, if not rare,
               for it will ordinarily be true that a disabled employee
               who has been unsuccessful in securing an
               accommodation will indeed suffer an adverse
               employment consequence.

               [Id. at 421.]

      The Court, nevertheless, ruled that based upon the record presented, it

was "constrained to refrain from resolving today the question of whether a

failure   to    accommodate     unaccompanied     by   an   adverse   employment

consequence may be actionable."         Id. at 422.    First, the record failed to

establish plaintiff was disabled when he sought an administrative duty

assignment. Id. at 423. Second, there was insufficient proof that he sought a

reasonable accommodation based upon his mere request, as the employer only

has a duty to accommodate an employee's physical disability and not simply

agree to a request without engaging in the interactive accommodation request

to determine a reasonable accommodation. Id. at 423-24.

      The Court recognized that under the right set of facts, the LAD might

cover a disability discrimination claim for failure to accommodate absent an

adverse employment action. As Justice Hoens wrote:

4
   Model Jury Charges (Civil), 2.26, quoted this comment from Victor in
footnote number three; noting it as "dictum."


                                                                          A-0102-17T2
                                         15
            Perhaps in those circumstances the employee could
            demonstrate that the failure to accommodate forced
            the employee to soldier on without a reasonable
            accommodation, making the circumstances so
            unbearable that it would constitute a hostile
            employment environment. But there also might be
            circumstances in which such an employee's proofs,
            while falling short of that standard, would cry out for
            a remedy. We cannot foresee all of the factual
            settings that might confront persons with disabilities
            and, although hard to envision, we therefore cannot
            entirely foreclose the possibility of circumstances that
            would give rise to a claim for failure to accommodate
            even without an identifiable adverse employment
            consequence.

            [203 N.J. at 421-22.]

      Almost ten years later in Royster, another State Trooper employment

discrimination case, the Court decided in the interest of justice to reinstate the

plaintiff's LAD failure to accommodate claim that was mistakenly dismissed.

227 N.J. at 501. In doing so, the Court articulated the standard to establish a

prima facie claim – without including the requirement that an adverse

employment action must be proven. Citing Victor, the Court ruled:

            To establish a failure-to-accommodate claim under the
            LAD, a plaintiff must demonstrate that he or she (1)
            "qualifies as an individual with a disability, or [ ] is
            perceived as having a disability, as that has been
            defined by statute"; (2) "is qualified to perform the
            essential functions of the job, or was performing those
            essential functions, either with or without reasonable
            accommodations"; and (3) that defendant "failed to
            reasonably accommodate [his or her] disabilities."
            Victor, []203 N.J. at 410, 421[]. Although these

                                                                         A-0102-17T2
                                       16
            elements do not mirror those of the ADA, the same
            proofs are implicated: (1) the plaintiff had a disability;
            (2) the plaintiff was able to perform the essential
            functions of the job; (3) the employer was aware of
            the basic need for an accommodation; and (4) the
            employer     failed    to    provide      a   reasonable
            accommodation.

            [227 N.J. at 500.]

      Our interpretation of Victor and Royster leads us to conclude that

Richter's LAD claim for failure to accommodate her diabetes disability should

not have been dismissed on summary judgment based on a lack of adverse

employment action. Viewing the facts in the light most favorable to Richter,

her claim falls within the unusual situation contemplated in Victor where "the

employee could demonstrate that the failure to accommodate forced the

employee to soldier on without a reasonable accommodation[]" and there need

not be proof of adverse employment action because the circumstances "cry out

for a remedy." 203 N.J. at 421. She requested an accommodation for an

earlier lunch period to avoid a hypoglycemic event from not eating, which was

provided for one marking period but not the following marking period. Under

the impression that Desiderio did not change her schedule to allow for the

earlier lunch period and she could not eat her lunch while supervising students

during her cafeteria duty, Richter "soldiered on" by taking glucose tablets to

maintain her blood sugar levels in order to teach. Sadly, her worst fears came



                                                                         A-0102-17T2
                                       17
to fruition when she fainted and seriously injured herself in front of her

students. Hence, she should be allowed to present her claim for damages

under the LAD at trial.

                                      B.

      Having concluded that Richter need not establish an adverse

employment action to establish a prima facie claim under the LAD for failure

to accommodate, we briefly address her contention that Victor stands for the

proposition that defendants' refusal to accommodate an employee's disability

constitutes an adverse employment action. She asserts, "there is no bright -line

rule for identifying an adverse employment action" and the "proofs necessary

to demonstrate an adverse employment action must be examined on a case-by-

case basis." See Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App.

Div. 2002) aff'd in part and modified in part, 179 N.J. 425 (2004); Victor v.

State, 401 N.J. Super. 596, 615 (App. Div. 2008). With respect to her claim,

Richter argues the terms and conditions of her employment had been seriously

altered, by continuously ingesting glucose tablets to maintain her blood sugar

levels and the refusal to change her lunch period caused her to experience

constant hypoglycemic symptoms, such as sweats, disorientation, and fatigue.

      We agree there is no bright-line rule defining an adverse employment

action in the context of a LAD claim. New Jersey has been guided by the



                                                                       A-0102-17T2
                                      18
federal courts' interpretation of Title VII and civil rights legislation to decide

what constitutes an adverse employment decision with regards to a LAD

retaliation claim. Mancini, 349 N.J. Super. at 564 (citation omitted). The

factors to be considered include an "employee's loss of status, a clouding of

job responsibilities, diminution in authority, disadvantageous transfers or

assignments, and toleration of harassment by other employees." Ibid. As the

federal district court stated in Marrero v. Camden County Board of Social

Services, 164 F. Supp. 2d 455, 473 (D.N.J. 2001),

            [i]n order to constitute "adverse employment action"
            for the purpose of the LAD, "retaliatory conduct must
            affect adversely the terms, conditions, or privileges of
            the plaintiff's employment or limit, segregate or
            classify the plaintiff in a way which would tend to
            deprive her of employment opportunities or otherwise
            affect her status as an employee."

      In the context of whistle-blower claims under the New Jersey's

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, an

"employer actions that fall short of [discharge, suspension or demotion], may

nonetheless be the equivalent of an adverse action."        Nardello v. Twp. of

Voorhees, 377 N.J. Super. 428, 433-34 (App. Div. 2005) (alteration in

original) (quoting Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366,

378 (Law Div. 2002)). That being said, "not every employment action that




                                                                         A-0102-17T2
                                       19
makes an employee unhappy constitutes 'an actionable adverse action.'" Id. at

434 (quoting Cokus, 362 N.J. Super. at 378).

      Although an "adverse employment action under the LAD is [not] the

same as a retaliatory action under CEPA," we have acknowledged

            that an employer's adverse employment action must
            rise above something that makes an employee
            unhappy, resentful or otherwise cause an incidental
            workplace dissatisfaction. Clearly, actions that affect
            wages, benefits, or result in direct economic harm
            qualify. So too, noneconomic actions that cause a
            significant, non-temporary adverse change in
            employment status or the terms and conditions of
            employment would suffice.          We recognize an
            exhaustive list of qualifying events cannot be
            compiled and these determinations must turn on the
            facts and circumstances presented.

            [Victor, 401 N.J. Super. at 616.]

Although we do not marginalize Richter's unfortunate injuries caused by her

hypoglycemic event, we are constrained to conclude her situation does not rise

to the level of an adverse employment action as our courts have contemplated

to date under the LAD. Defendants' actions did not materially alter the terms

and conditions of her employment.          Nor did they deprive her of any

employment privileges or opportunities, or otherwise change her employment

status.   Accordingly, we do not conclude that she suffered an adverse

employment    action   based   upon   defendants'   alleged   conduct   in    not

accommodating her accommodation.

                                                                        A-0102-17T2
                                      20
                                      C.

      We next address Richter's contention that the motion judge should have

granted her cross-motion for summary judgment because there was no genuine

issue of material fact as to the failure to accommodate her disability and

defendants acted in bad faith in failing to engage in the interactive process to

address her accommodation request. She argues that by determining she was

reasonably accommodated, not only did the judge fail to accept as true all the

evidence supporting her position, but the judge also failed to accord her the

benefit of all legitimate inferences which can be deduced therefrom, and

improperly weighed the evidence in defendants' favor. We are unpersuaded.

      Richter asserts defendants failed to initiate an informal interactive

process with the employee to determine what appropriate accommodation is

necessary as required by N.J.A.C. 13:13-1.1 to -2.5(b). See Tynan, 351 N.J.

Super. at 400; 29 C.F.R. § 1630.2(o)(3). In particular, she avers the judge

completely disregarded that: (1) her accommodation request was reasonable;

(2) defendants never claimed the accommodation she sought was unreasonable

or caused an undue hardship for the Board; (3) Desiderio never sought to

understand her accommodation request and why she needed her lunch to be

during the fifth period; (4) Desiderio had little discussion with her about her

disability and the requested accommodation; (5) Desiderio completely ignored



                                                                        A-0102-17T2
                                      21
her accommodation request for the entire first marking period; and (6)

Desiderio's "solution" to "have a snack and then go to [cafeteria] duty" did not

adequately accommodate her medical needs and therefore was not an effective

accommodation.

      In order to demonstrate an employer failed to participate in the

interactive process, a disabled employee must show:

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

            [Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319-
            20 (3d Cir. 1999).]

      While there were no disputes concerning the first and second factors,

there were factual disputes as to the third and fourth factors. Defendants point

to statements by Desiderio, the vice principal and the union president that

Richter was verbally told at the beginning of the third marking period – prior

to her fall on March 5, 2013 – that she did not have to perform her fifth period

cafeteria duty if she felt she needed to eat her lunch.      Richter, however,

thought in order for an accommodation request to be granted, it had to be in

writing because the official schedule stated otherwise. Viewing the evidence

in the light most favorable to defendants, the non-moving parties, a reasonable

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jury could have determined that defendants participated in the interactive

process and made a good faith effort to provide her with an accommodation.

Therefore, based upon the record, denying Richter's cross-motion for summary

judgment was proper.

                                       D.

      Given that the motion judge's decision to dismiss her bodily injury claim

under the LAD also included dismissal of her punitive damages claim, Richter

contends that the later claim should be presented to the jury. To the extent that

we have reinstated Richter's LAD claim, the statute permits punitive damages.

N.J.S.A. 10:5-3 provides:

            The Legislature further finds that because of
            discrimination, people suffer personal hardships, and
            the State suffers a grievous harm. The personal
            hardships include: economic loss; time loss; physical
            and emotional stress . . . and adjustment problems,
            which particularly impact on those protected by this
            act. Such harms have, under the common law, given
            rise to legal remedies, including compensatory and
            punitive damages. The Legislature intends that such
            damages be available to all persons protected by this
            act and that this act shall be liberally construed in
            combination with other protections available under the
            laws of this State.

            [(Emphasis added).]

Thus, the jury must decide whether Richter proved: (1) the harm she suffered

was the result of the defendant's acts or omissions, and (2) such acts or



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                                       23
omissions were actuated by "actual malice" or accompanied by a "wanton and

willful disregard" of persons who foreseeably might be harmed by those acts

or omissions. N.J.S.A. 2A:15-5.12(a).

                                       III

      Because we have determined that Richter's LAD claim shall proceed to

trial, we now address the Board's cross-appeal contending that Richter's bodily

injury claim due to the Board's failure to accommodate her disability should be

barred by the exclusive remedy provision of the Compensation Act. If the

bodily injury claim is not dismissed, the Board contends that Richter should

not be allowed to introduce medical bills and lost wages at trial, and if she is,

then it should receive 100% credit for the worker's compensation payments it

made to any jury award in her favor.

                                        A.

      There is no dispute that Richter's bodily injury claim arose while she

was acting within the scope of her employment. As previously noted, her

workers' compensation claim paid her $18,940.94 for medical bills, $9,792.40

for temporary disability benefits and $77,200 for the permanent injuries. The

Board argues that because she elected to pursue her remedies under the

Compensation Act, the exclusive remedy provision of the Compensation Act

bars her from receiving any additional compensation, or double recovery,



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                                       24
through her LAD action. Estate of Kotsovska, ex. rel. Kotsovska v. Liebman,

221 N.J. 568, 585 (2015), Van Dunk v. Reckson Associates Realty Corp., 210

N.J. 449, 459 (2012). We disagree.

      By pursuing remedies under the Compensation Act, an employee gives

up the right to pursue common law claims for work-related injuries. Laidlow,

170 N.J. at 602. However, the Compensation Act carves out an intentional

wrong exception to the exclusivity of relief provided by a workers'

compensation claim where it provides:

            If an injury or death is compensable under this article,
            a person shall not be liable to anyone at common law
            or otherwise on account of such injury or death for
            any act or omission occurring while such person was
            in the same employ as the person injured or killed,
            except for intentional wrong.

            [N.J.S.A. 34:15-8.]

      This exception was first construed by our Supreme Court in Millison v.

E.I. Du Pont de Nemours & Co., 101 N.J. 161 (1985). The Court held the

plaintiffs' claims that the employer had fraudulently concealed that they were

suffering from asbestos-related diseases, thereby delaying treatment and

aggravating their existing illness, constituted an intentional wrong that was an

exception to the workers' compensation bar.          Id. at 181-82; see also

Kristiansen v. Morgan, 153 N.J. 298, 312 (1998).




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                                      25
      "An injured worker need not establish that the employer 'subjectively

desired to harm him [or her]' in order to satisfy the intentional-wrong

exception. Laidlow, []170 N.J. at 613." Kibler v. Roxbury Bd. of Educ., 392

N.J. Super. 45, 53 (App. Div. 2007). To recover tort damages, an employee

must satisfy a two-prong test:

            [I]n order for an employer's act to lose the cloak of
            immunity of N.J.S.A. 34:15-8, two conditions must be
            satisfied: (1) the employer must know that his actions
            are substantially certain to result in injury or death to
            the employee, and (2) the resulting injury and the
            circumstances of its infliction on the worker must be
            (a) more than a fact of life of industrial employment
            and (b) plainly beyond anything the Legislature
            intended the [Compensation] Act to immunize.

            [Laidlow, 170 N.J. at 617.]

      Referred to as the conduct prong, the first prong may present factual

issues for a jury if the evidence, "when viewed in a light most favorable to the

employee, . . . could lead a jury to conclude that the employer acted with

knowledge that it was substantially certain that a worker would suffer injury."

Id. at 623. If so, the trial judge then moves to the second prong, referred to as

the context prong, which is a question of law, to "determine whether, if the

employee's allegations are proved, they constitute a simple fact of industrial

life or are outside the purview of the conditions the Legislature could have

intended to immunize under the Workers' Compensation bar."          Ibid. When



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                                       26
determining if the two-prongs of the Laidlow test are met, the court must

utilize a totality of the circumstances approach. Van Dunk, 210 N.J. at 470;

Laidlow, 170 N.J. at 614, 622.

      Applying the Laidlow test to Richter's LAD bodily injury claim leads us

to reason that her claim is not barred by the Compensation Act's exclusive

remedy provision.     Considering Richter's allegations in the light most

favorable to her as the non-moving party, Desiderio intentionally refused her

accommodation request, and it was substantially certain that she could suffer a

hypoglycemic event that could cause bodily injuries. This is not the "simple

fact of industrial life" envisioned by the Compensation Act.

      Our conclusion is supported by our decision over twenty years ago in

Schmidt v. Smith, 294 N.J. Super 569, 585 (1996), where we recognized "there

is no language in the LAD that mandates that claims made by employees

against employers under it may only be brought under the" Compensation Act.

Given the LAD is remedial social legislation, it should be liberally construed

"in combination with other protection available under the laws of this state."

Id. at 586 (citing N.J.S.A. 10:5-3); see also Royster, 227 N.J. at 500-01.

Accordingly, Richter can present her bodily injury claims directly arising from

her LAD claim to the jury.




                                                                       A-0102-17T2
                                      27
                                       B.

      Should we allow Richter to present her bodily injury claim and the jury

award her damages, the Board contends that Millison and Calalpa v. Dae

Ryung Co., Inc., 357 N.J. Super. 220, 229 (App. Div. 2003), dictate that as her

employer and a defendant in her civil suit, it is entitled to a 100% credit of the

workers' compensation award it paid her.        Richter asserts that she is not

looking for double recovery, but posits that under section 40, the Board or its

workers' compensation carrier is entitled to a credit of two-thirds of the

workers' compensation award with her counsel allowed the one-third balance

for counsel fees plus costs up to $750.       Based upon our interpretation of

Millison, Calalpa and section 40, we favor Richter's argument.

      In Millison, in addition to adopting the substantial certainty two-prong

test to determine if an employee can hurdle the exclusive remedy of filing a

worker's compensation claim, the Court also addressed the offsets for workers'

compensation benefits an employer was entitled to receive when it was held

liable in a civil action. 101 N.J. at 178, 187. The Court reasoned:

            If . . . a plaintiff should prevail in his suit based on
            intentional wrong, he would not be entitled to keep the
            entire amount of his compensation award as well as
            his civil suit remedy. That double recovery is to be
            avoided is evident from so much of the Compensation
            Act as demands that compensation claimants who
            have recovered from third parties be required to
            reimburse their employer or its insurance carrier for

                                                                         A-0102-17T2
                                       28
            compensation payments already made.            N.J.S.A.
            34:15-40. Thus if the trier-of-fact determines that du
            Pont and/or its doctors have been guilty of an
            intentional wrong as a result of their alleged
            fraudulent concealment of existing occupational
            diseases, du Pont or its insurance carrier will be able
            to offset compensation benefits previously paid to the
            extent that the civil damage award would serve as a
            double recovery.

            [101 N.J. at 187 (emphasis added).]

      The impact of Millison was clarified in Calalpa for situations, such as

here, where the potential

            tortfeasor is the employer, [thus] the employer is not
            "neutral" and, if entitled to a lien, would not in the tort
            litigation "pay[] exactly the damages he or she
            ordinarily pay . . . ," or "come out even." This is so
            because, facially, the employer has paid damages from
            its tort pocket, but took some of that payment back
            from its workers' compensation pocket.

            [357 N.J. Super 227-28.]

The workers' compensation carrier was entitled to a 100% credit, meaning "a

dollar for dollar lien" under section 40 for two reasons. Id. at 228, 231.

      First, "the 'double recovery' referred to by the Millison Court within the

context of an injured employee's receipt of both workers' compensation

benefits and civil damages for the same injuries focuses upon the notion that




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                                        29
an employee cannot have both." Id. at 228. In 1913, section 40 5 was enacted

to prevent an employee's double recovery. Under equitable considerations, an

employee cannot "retain all or a part of both his or her compensation benefits

and tort proceeds. . . ." Id. at 228-29. Thus, "the 'to the extent' language in

Millison probably reflects the Court's recognition that employer intentional

wrong is difficult to prove and a plaintiff, therefore, may well not obtain any

monies at all in the tort litigation." Id. at 229.

      Second, "the 'third person' concept in [section 40] has been broadly

applied to both true third person tortfeasors and tortfeasors who are the

'functional equivalent.'" Id. at 229 (citing Frazier v. New Jersey Mfrs. Ins.,

142 N.J. 590, 598 (statutory lien applied to attorney malpractice damages);

Midland Ins. Co. v. Colatrella, 102 N.J. 612, 618 (1986) (statutory lien applied

to uninsured motorist insurance recovery)). "Where an employee has pierced

the threshold of the compensation bar, he or she has established that the

employer's conduct is beyond the 'natural risk[s] of' employment and does not

'arise[] out of' the employment relationship." Calalpa, 357 N.J. Super. at 229




5
   Providing, in pertinent part, that an employee will be "guaranteed recovery
for his common-law damages against contributing third-party tortfeasors or for
his [workers'] compensation award, whichever is greater, but he may not
duplicate these recoveries."


                                                                       A-0102-17T2
                                         30
(citing Laidlow, 170 N.J. at 606.)      Thus, the employer is no longer an

employer under the Compensation Act but "an actionable tortfeasor." Id.

      Consequently, should the Board be found liable for Richter's bodily

injury claim under the LAD for failure to accommodate Richter as a "third -

party" tortfeasor, its lien on the jury award is pursuant to section 40. In this

statutory scheme, the Board's or its insurance carrier reimbursement is as

follows:

            If the sum recovered by the employee or his
            dependents from the third person or his insurance
            carrier is equivalent to or greater than the liability of
            the employer or his insurance carrier under this
            statute, the employer or his insurance carrier shall be
            released from such liability and shall be entitled to be
            reimbursed, as hereinafter provided, for the medical
            expenses incurred and compensation payments
            theretofore paid to the injured employee or his
            dependents less employee's expenses of suit and
            attorney's fee as hereinafter defined.

            [N.J.S.A. 34:15-40 (b).]

      Therefore, if the award recovered by Richter is "equivalent to or greater

than the liability of the employer from an award," in this case, $28,733.84 for

medical bills and temporary disability benefits, the Board is allowed to keep

two-thirds with Richter's counsel being entitled to the remaining one-third for

counsel fees and costs not to exceed $750. N.J.S.A. 34:15-40 (b) and (e).




                                                                        A-0102-17T2
                                       31
      Finally, we reject the Board's contention that Richter should not be able

to present her medical and lost wages as evidence. Without allowing the jury

to consider these damages, the trial court cannot determine whether the Board

is entitled to a section 40 lien.

      Affirmed in part, reversed in part and remanded for trial. We do not

retain jurisdiction.




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