                                NOT FOR PUBLICATION WITHOUT THE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-0494-18T4

V.L.,

          Plaintiff-Appellant,

v.

HUNTERDON HEALTHCARE,
LLC, and HUNTERDON
MEDICAL CENTER,

     Defendants-Respondents.
____________________________

                    Argued November 6, 2019 – Decided December 6, 2019

                    Before Judges Yannotti, Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hunterdon County, Docket No. L-0486-15.

                    Thomas A. McKinney argued the cause for appellant
                    (Castronovo & McKinney, LLC, attorneys; Thomas A.
                    McKinney, of counsel and on the briefs; Megan Frese
                    Porio, on the briefs).

                    Pamela J. Moore argued the cause for respondents
                    (McCarter & English, LLP, attorneys; Pamela J. Moore,
                    of counsel and on the brief; Sami Asaad, on the brief).
PER CURIAM

        Plaintiff V.L.1 appeals from the summary judgment dismissal of her

complaint against her employer, defendants Hunterdon Healthcare, LLC and

Hunterdon Medical Center, alleging disability discrimination, failure to

accommodate, and retaliatory discharge, in violation of the New Jersey Law

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We reverse.

                                         I

        We derive the following facts from the summary judgment record.   Plaintiff

began working for defendants around 1996, at the age of approximately twenty-six.

She began as an employee at the help desk, and was later promoted to coordinator.

Plaintiff was then promoted to a project analyst position, and then a web analyst

position. While in that position, she applied in 2009 to become an Electronic

Medical Record (EMR) Application Analyst, the position responsible for handling

data for defendants' electronic medical record system. She received the position,

and continued to serve in it from 2010 through 2015.2


1
    We refer to plaintiff using her initials to protect her privacy.
2
    Defendants contend that plaintiff did not begin working for Hunterdon
Healthcare, LLC (which does business as Hunterdon Healthcare Partners
(HHP)) until 2010, when she began the EMR position – they allege that the LLC
is a separate entity from Hunterdon Medical Center (HMC), where plaintiff


                                                                          A-0494-18T4
                                             2
      Plaintiff was first diagnosed with depression and anxiety while in high school.

Plaintiff's first leave of absence as an EMR Analyst occurred in 2012, when she

missed one month from work as a result of depression. Plaintiff also took a six-day

leave of absence in 2013.

      Plaintiff was first permitted to work from home during some of her weekly

hours in 2000. At one point in 2013, Jeffrey Weinstein, the executive director and

CEO of HHP, gave approval for plaintiff to work from home a total of sixteen hours

per week, and to work in the office for the remaining twenty-four hours per week.

Following a project in 2014, during which plaintiff was in the office full-time, she

began working from home two hours per day, from 5:30 a.m. to 7:30 a.m., and then

worked six hours in the office, Monday through Thursday, and she worked from

home on Fridays. Weinstein also approved this schedule.

      In January 2014, plaintiff's supervisor, Jean Fitzgerald, completed an

Employee Annual Evaluation for plaintiff, which assessed fifteen different

"[p]erformance [c]ompetencies." Fitzgerald rated plaintiff as "exceptional" in eight




began working in 1996. Plaintiff's application for the EMR position makes it
appear that her receiving the position would constitute an internal hire.



                                                                             A-0494-18T4
                                         3
competencies and "highly effective" in the remainder.3 Weinstein signed his name

on the evaluation, confirming that he reviewed the evaluation and presumably

concurred with the ratings. Plaintiff received a raise in January 2014.

      On December 8, 2014, plaintiff notified defendants that she would "be out

of work on disability," and she could not state how long because her "doctor did not

specify." The following week, plaintiff completed and submitted an employer-

supplied document entitled Leave of Absence Request and Agreement (the Leave

Agreement), which listed her "leave start date" as December 9, and "return to work

date" as February 1, 2015. The Leave Agreement noted that "[i]f [plaintiff's] request

for leave is granted, [she has] a right to take up to twelve (12) weeks of leave in a

[twelve]-month period . . . ." It also provided that if plaintiff did "not return within

the time period allowed," defendants may post her position.

      Plaintiff maintained contact with defendants during her leave. On January 30,

2015, she emailed defendants advising she had just seen the doctor, and her "new

tentative return date is March 2nd," thereby taking the full twelve weeks of leave

acknowledged in the Leave Agreement.



3
   The Employee Annual Evaluation defined "exceptional" as "[p]erformance
[that] is consistently superior and significantly exceeds position requirements,"
and "highly effective" as "[p]erformance frequently exceeds position
requirements."
                                                                               A-0494-18T4
                                           4
      On February 25, 2015, five days before the March 2 return date, plaintiff sent

Weinstein the following email:

             I am trying to figure out how I can manage so I can
             come back to work. Is there any possibility of working
             just remotely? Even if it's just on a trial basis for a few
             months and see how it goes. I might be able to handle
             coming in [one] or [two] days for meetings or going
             over work to be done. I don’t know that I can manage
             otherwise. I really don't wish to lose my job but may
             not have a choice.

      Approximately forty-five minutes later, Weinstein responded, in pertinent

part: "Unfortunately the job does require working on site. We have been able to

accommodate your need to get your daughter on the bus as she is not yet in high

school. We hope you are able to return to work soon . . . ." Plaintiff responded later

that day with two emails – the first stated, in part:

             I have to say [I] am not feeling very valued. My reason
             for asking to work at home are for my own health
             reasons.    I don't quite understand the at[-]work
             requirement when we have remote consultants doing
             exactly what [I] do. Nevertheless [I] would like to
             return to work as soon as [I] am able."

The second email stated, in part:

             [A]s [I] think more about it [I] am feeling more pushed
             out than valued. I realize that Tony Albanese works for
             [HME] and not [HHP] but when he decided to move to
             the shore he was accommodated with working at home.
             Nothing to do with health or any young kids.


                                                                              A-0494-18T4
                                           5
       The next email that appears in the record between the parties came from

defendants on February 27, 2015; it included an attached letter from Weinstein,

stating in part:

              This letter is to remind you that your [twelve] week
              leave of absence will come to an end on Tuesday,
              March 3, 2015. At that time we hope you are able to
              return to your full duties. If you are not able to return
              on the date mentioned above, it is our understanding
              that you would be considering applying for long[-]term
              disability. . . .

              [I]f you are unable to return on . . . March 3 . . . we will
              have to post your position as EMR Applications
              Analyst. However, if you are able to return to work
              prior to us filling the position, you would be considered
              for rehire.

At his deposition, Weinstein conceded that this email, to his knowledge, was the first

time defendants gave plaintiff a formal "date stating [she would] have to return . . .

or [she] will be considered terminated."

       On March 2, 2015, Fitzgerald emailed Weinstein, stating that if he meets "with

[plaintiff] and sever[s] her employment, [to] please get her key and ID badge. We

can pack her desk for her."

       On March 6, 2015, plaintiff emailed defendants stating that she just visited

her doctor and did not receive "clearance to return just yet. Maybe in a few weeks."

The record includes a March 6 document filled out by her doctor, Jay Kuris, M.D.,


                                                                              A-0494-18T4
                                           6
answering "Yes" to the question, "Is patient able to work at his/her regular

occupation?" Dr. Kuris listed the "actual recovery date" at April 1, 2015. At her

deposition, plaintiff confirmed that she knew these facts on March 6; the parties

dispute whether plaintiff supplied defendants with this documentation from Dr.

Kuris – plaintiff testified that she did, and defendants assert she did not.

      On March 9, 2015, defendant posted plaintiff's EMR Analyst position. On

that same day, Fitzgerald sent another email to Weinstein asking, "At what point is

[plaintiff] officially severed? We need to get her key and ID badge.'"

      The next communication between the parties that appears in the record is an

email from defendants to plaintiff's work email (all communications prior to March

11, 2015 involved plaintiff's personal email address). Attached was a letter from

Weinstein, stating that plaintiff failed to return to work after March 3rd, and:

             You have now notified us that you are still unable to
             return to work without restriction. You have also
             informed us that you may never be able to return to
             work and are seeking permission to work from home on
             an indefinite basis.

             Unfortunately, HHP cannot extend you[r] further leave
             or approve your request to work from home at this time
             for several reasons, not the least of which is the lack of
             any objective medical support for your claimed need to
             do so. More importantly, the essential functions of your
             position require you to be in attendance at work on a
             regular basis to collaborate with the clients you serve,
             i.e., the physician practices. Accordingly, eliminating

                                                                               A-0494-18T4
                                           7
             your need to report to work is not a reasonable
             accommodation. That said, provided the request for
             occasional homework assignments is supported by
             objective medical evidence, HHP might be able to
             allow you to work from home on an occasional as-
             needed basis. . . .

             As of now, you are expected to return to work by
             Monday, March 16, 2015. If you remain unable or
             unwilling to do so, then HHP will move forward to fill
             your position. If you are able to return to work on
             Monday . . . and still would like to request occasional
             home work as a form of accommodation, or if you
             require any other type of accommodation to enable you
             to work in the office, we will provide you with the
             paperwork necessary for you to have your treating
             physician complete and return to us for consideration.

      The email and letter was later sent to plaintiff's personal email address on

March 15, the day before Weinstein's deadline to return to work. Two-and-a-half

hours later, plaintiff responded:

             I am seeing this for the first time . . . . I cannot get
             clearance today to return tomorrow. The doctor is not
             even open. My next [appointment] is currently March
             26th. Did you also send this on the 11th? That looks
             like when [the letter is] dated. I did not see it.

Plaintiff sent two more emails that day: the first stated, "I also don't recall saying I

may never return to work." The second stated, "As I re-read the letter I'd also like

to clarify my request was not to work home indefinitely, but temporarily on a trial

basis for now. If it helps I would like [sic] the paperwork for the doctor."


                                                                                A-0494-18T4
                                           8
      The next day, March 16, at 4:43 p.m., plaintiff received an email with another

letter from Weinstein, and an "Essential Job Functions Form" for plaintiff's doctor

to complete. Weinstein's letter repeats much of the same, except the following:

            [T]he nature of your serious medical condition as set
            forth in the Medical Certification provided by your
            treating physician strongly suggests that you would not
            be able to be productive at home even if a request for
            homework were reasonable.             Specifically, the
            [certification] indicates that you "cannot sustain
            attention, effort, concentration or demeanor" due to
            "excessive depression, anxiety, stress and worry."
            Unless there has been a substantial change in your
            circumstances, the essential functions of your position
            cannot be done . . . .

            In any event, while we have reason to doubt whether
            there is any accommodation that could enable you to
            perform the essential functions of your position, we
            welcome any input from your treating physician in this
            regard. We certainly do not want to overlook any
            reasonable options that may make it possible for you to
            perform the essential functions of your position. . . .
            Please have your treating physician return the enclosed
            to me no later than March 23.

This letter mistakenly relied on outdated paperwork and forms that Dr. Kuris

submitted for plaintiff's past New Jersey disability insurance benefits for the time

when plaintiff could not work. Dr. Kuris signed the forms on December 22, 2014;

on the same page as the language quoted by Weinstein, Dr. Kuris wrote "[February]




                                                                            A-0494-18T4
                                         9
1, [20]14" next to "Estimated Recovery: (Give the approximate date patient will be

able to return to work.)" – presumably, Dr. Kuris meant to write February 1, 2015.

      Plaintiff's brief points out that the essential job functions form "restricts

[p]laintiff's ability to work from home to a maximum of two hours per day and only

upon a showing of 'objective medical evidence.'" At her deposition, Fitzgerald

confirmed there was a time when plaintiff worked two days per week from home,

and another time when plaintiff would work from home for two hours, Mondays

through Thursdays, and all day on Fridays. She agreed that those scenarios were

"different than what's being listed . . . as part of the essential job function . . . ."

      Plaintiff moved her doctor's appointment up from March 26 to March 19.

According to Dr. Kuris, when he saw plaintiff on March 19, "she appeared to be

sufficiently improved to return to work on a part-time basis," specifically six hours

in the office and two at home, as required in the essential functions form. Thus, he

was prepared to give plaintiff clearance on March 19. However, the record indicates

the doctor's clearance paperwork was signed on March 25. Yet, on March 23,

plaintiff emailed defendants asking, "Did you get the paperwork from the doctor? I

don't know if I should be making an appointment with [OCC]4 to try and return."


4
  It appears that OCC is a unit within defendants' Occupational Health Servic es
(OHS), an in-house health department that, in part, evaluates employees who
seek to return to work following a leave of absence.
                                                                               A-0494-18T4
                                         10
Defendants responded they did not receive the paperwork, and they "cannot proceed

without it." Plaintiff replied, "I will call the doctor[']s office. He said he would fill

everything out and get it back by today[, s]o I don’t know what happened." Plaintiff

was unable to retrieve the paperwork and submit it until March 25, when she arrived

at an appointment with defendants' health services department regarding her return.

      Jacqueline Ritter, a physician's assistant within defendants' health services

center, met with plaintiff on March 25 regarding her potential return to work. As

plaintiff's brief notes, and defendants do not dispute, Ritter "is not a [p]sychologist,

[p]sychiatrist, or [c]linical [s]ocial [w]orker, and has no degree, accreditation, or

certificate for any type of mental health issues."

      Ritter wrote in her records that before the meeting, she had a discussion with

Human Resources, namely Lisa Schulte and Maura Cocino, an executive assistant

who was part of the email chains with plaintiff, "as there w[ere] concerns for

[plaintiff's] return today being forced upon [her]. [Cocino] was advised that her

doctor may return [plaintiff] if forced to as to save her position, even when the

employee may not be ready to return."

      At her deposition, Ritter stated that Cocino also informed her "that they had a

good candidate that they [were] considering for hire for [plaintiff's] position," and

"in her eight years performing evaluations for [d]efendants, this was the first time


                                                                                A-0494-18T4
                                          11
she had ever been informed that a replacement had been found for the individual she

was evaluating." Ritter admitted telling Cocino "they should have proceeded with

separation and hiring of their candidate."

      Ritter wrote that during their March 25 meeting, plaintiff was "[v]ery

emotional, crying throughout discussion today in the office," and "[f]lat affect [was]

noted." Ritter wrote that she met again with Schulte and Cocino, and told them "it

is my opinion that she not be cleared to return to work, as she verbally stated she is

not ready . . . ." However, on a return to work form she completed, Ritter did not

check the box stating "[u]nable to return to work at this time," and instead checked

off "other," and providing, "Employee has provided medical documentation

requesting work accommodations. This is to be discussed with her supervisor . . . ."

      Following her meeting with plaintiff, Ritter noted:

             [Plaintiff] inquired whether she should discuss with her
             supervisor whether they can accommodate the
             restrictions, and I advised her that it is the proper
             protocol to have this discussion prior to seeing OHS for
             clearance, and at this time, I would refer her back to her
             supervisor for that discussion prior to any
             determination of work clearance. I stated . . . that since
             her job protection is up, she may not have a job to return
             to, and may have to reapply for that position or another
             position . . . .




                                                                              A-0494-18T4
                                         12
At her deposition, plaintiff denied telling Ritter that she was not ready to return to

work, and rather told her that she was ready to work six hours continuously in the

office, the amount of time sought in the essential functions form.

      On March 26, Ritter wrote that she "[r]eceived a phone call from . . . Weinstein

in conference with . . . Cocino at 9 [a.m.] to discuss [plaintiff]'s return to work."

Ritter then spoke with Schulte, who "voiced concern over [Weinstein's] request that

I contact the treating physician and counter his decision to return [plaintiff]." Ritter

later told Weinstein that to counter the doctor would be inappropriate, and she

instead contacted Dr. Kuris to discuss plaintiff's restrictions. At her deposition,

Ritter confirmed that Dr. Kuris told Ritter that "he found [plaintiff] to be fit to return

to work[,] working six hours in the office" – she also said that Dr. Kuris estimated

that the accommodation would be necessary for two months.

      On March 26, Ritter wrote that Weinstein "was in agreement" with Ritter that

"he should determine if he can accommodate the restrictions prior to any

consideration for return to work." The record lacks proof of any discussions or

conduct by Weinstein regarding this determination; instead, on the morning of

March 27, plaintiff emailed Weinstein stating "I am not sure I understand the delay

or question on how to limit office hours. I have been working at home part time

successfully for years. Is there something else I can answer?"


                                                                                 A-0494-18T4
                                          13
      Later that day, plaintiff received a termination letter via email from Weinstein.

The letter stated that on March 25, plaintiff "reported to [OHS] that you were not

'emotionally ready' to return to work and admitted that you were doing so only

because you felt pressured into it." This reasoning was confirmed by Weinstein at

his deposition:

             Q.     Is it your testimony that the decision not to
                    reinstate [plaintiff] was based on a conversation
                    she had with . . . Ritter wherein she said she was
                    not emotionally ready to return?

             A.     Yes.

             Q.     Is that the only reason?

             A.     Yes.

      Plaintiff denies telling Ritter she was not emotionally ready, and instead

claims she told Ritter only that she "was being pressured to be in the office full-

time." Her position was reflected in her email back to Weinstein on March 29, which

stated that Ritter "said you had to make [the time restrictions] approval and we would

talk again before she could clear me." Ritter estimated she completed 100 return-to-

work evaluations during her eight years with defendants, and stated she could "only

recall denying [plaintiff] out of the 100 people."

      After listing a series of facts he found "objective, material, [and] undisputed,"

the judge first determined that plaintiff failed to establish a prima facie case of

                                                                              A-0494-18T4
                                         14
disability discrimination under the LAD. After acknowledging the four elements of

a prima facie case by citing to Victor v. State, 401 N.J. Super. 596, 609-10 (App.

Div. 2008), affirmed in part and modified in part, 203 N.J. 383 (2010), the judge

stated that the element "that ends up being the primary focus of both the defendant's

and the [c]ourt's analysis is [the second element, which asks] whether or not the

plaintiff was qualified to perform the essential functions of her position[,] with or

without accommodation."        The judge accepted defendants' argument that "in

March . . . 2015, [plaintiff] either couldn’t or she wasn't willing to perform the

essential functions of the job."

      In his oral and written opinions, the judge primarily relied on Svarnas v.

AT&T Communications, 326 N.J. Super. 59 (App. Div. 1999), in reaching this

determination. In the written opinion, the judge provided a block quote from

Svarnas, which includes the following:

             [N]othing in the LAD is construed to prevent the
             termination of any person who in the opinion of the
             employer, reasonably arrived at, is unable to perform
             adequately the duties of employment. N.J.S.A. 10:5-
             2.1.

                    ....

             An exception to [the duty to reasonably accommodate
             a disabled employee] exists where an employer
             reasonably determines that an employee, because of
             [the] handicap, cannot presently perform the job even

                                                                             A-0494-18T4
                                         15
            with accommodation. N.J.A.C. 13:13-2.8(a) . . . . The
            burden of proof is on the employer to demonstrate that
            the exception relied upon is based on such an objective
            standard supported by factual evidence. N.J.A.C.
            13:13-2.8(a)(3).

            [Id. at 72-78) (emphasis in original)]

The judge later addressed the opinions of Ritter and Dr. Kuris. He found:

            There is a dispute . . . about how . . . Ritter found . . .
            plaintiff during this meeting on . . . March [25].

            And at the conclusion of that memo . . . [Ritter] stated
            her opinion that [plaintiff] not be cleared to return to
            work because . . . [s]he appeared with flat affect and
            was very emotionally [liable] on evaluation . . . .

                   ....

            I think it's fair to say that . . . it was debatable, it was a
            matter of professional medical opinion . . . just how
            capable [plaintiff] was of performing the essential job
            functions back at that point in time.

                   ....

            Dr. Kuris reached a . . . different conclusion [from
            Ritter's] at roughly the same time period . . . .

            So there is an element of subjectivity and a professional
            judgment . . . that was documented at this point in time.

      The judge later returned to this topic, finding:

            Dr. Kuris' opinion that [plaintiff] was cleared, that --
            that was just -- that was an opinion, and [a] somewhat
            objective opinion at that.

                                                                             A-0494-18T4
                                         16
      Ms. Ritter made her own conclusions, which were
      somewhat subjective.

      Both hers and Dr. Kuris' opinions were . . . based on
      some level of . . . professional training.

      And then of course you have the opinion advanced by
      [plaintiff,] who challenges what she told Ms. Ritter on
      the twenty-fifth.
      But those were all sort of subjective . . . opinions that
      . . . [p]laintiff's ability to perform the essential job
      functions as of that point in time. But they don't . . .
      create a material fact issue when all the objective
      medical evidence leading up to that point in time
      establishes that she really wasn't medically able to do
      the job at that point in time, or she was unwilling to do
      it. Whichever way you go with it, the employer was
      justified in doing what . . . [it] did.

The judge then summarized the objective evidence he frequently referenced:

      [Plaintiff's] history of going out on disability before
      December[] 2014[;] her recent history beginning in
      December 2013[;] and the various e-mails where she
      kept extending the return date and changing the return
      date[; and] Dr. Kuris['] medical opinions, most
      particularly his one on December [22, 2014], and then
      there was the one on March [6, 2015] . . . .

            ....

      [T]his history of medical information that the employer
      had available to it . . . raised really serious questions
      about [plaintiff's] ability to perform the essential job
      functions.




                                                                   A-0494-18T4
                                17
      Notwithstanding his acknowledgment of the divergent opinions of Dr.

Kunis and Ritter regarding plaintiff's ability to return to work, and the dispute

between plaintiff and Ritter as to plaintiff's statements and her condition on

March    25,   the   judge    concluded        that,   based   on   "the   objective,

undisputed/incontrovertible evidence that was available to plaintiff's employer

as of the date of termination, no reasonable jury could conclude that plaintiff

was discharged because of her disability, or in retaliation for taking an extended

medical leave of absence." The judge further concluded that "no reasonable jury

could conclude that plaintiff's employer failed to attempt to reasonably

accommodate plaintiff's disability." Lastly, the judge reached "the inescapable

conclusion that plaintiff was unable or unwilling to perform the essential

functions of her job as of the date of her termination, March 27, 2018."

      This appeal followed.

                                          II

      We apply the same standard as the trial court in reviewing the granting of

a motion for summary judgment. Townsend v. Pierre, 221 N.J. 36, 59 (2015).

If there is no factual dispute, and only a legal issue to resolve, the standard of

review is de novo and the trial court rulings "are not entitled to any special

deference." Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366,


                                                                             A-0494-18T4
                                       18
378 (1995). 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

that the moving party is entitled to a judgment or order as a matter of law." R.

4:46-2(c). The court considers 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995).

      The LAD prohibits the discriminatory discharge of an employee based on a

disability,5 unless the employer "reasonably arrive[s] at" the conclusion that the

employee's disability "reasonably precludes the performance of the particular

employment." Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 367 (1988)

(quoting N.J.S.A. 10:5-2.1 and 10:5-4.1). Otherwise, the employer has a duty to

reasonably accommodate a disabled employee unless the employer proves that such

an accommodation imposes an undue hardship. Victor, 401 N.J. Super. at 610




5
  Depression "qualifies as a 'handicap' [or disability] under the LAD." Domurat
v. Ciba Specialty Chemicals Corp., 353 N.J. Super. 74, 89-90 (App. Div. 2002)
(citing Clowes v. Terminix International, Inc., 109 N.J. 575, 593 (1988)).
                                                                           A-0494-18T4
                                       19
(citing Potente v. County of Hudson, 187 N.J. 103, 110 (2006)); see also N.J.A.C.

13:13-2.5(b).

      When a disabled employee seeks a reasonable accommodation from her

employer, the employer must initiate a good faith "interactive process" with the

employee by attempting to explore an appropriate accommodation. See Tynan v.

Vicinage 13 of Superior Court, 351 N.J. Super. 385, 400-01 (App. Div. 2002). As

this court explained in Tynan:

            While there are no magic words to seek an
            accommodation, the employee . . . 'must make clear that
            . . . assistance [is desired] for his or her disability.'
            Jones v. United Parcel Service, 214 F.3d 402, 408 (3d
            Cir. 2000) (quoting Taylor[v. Phoenixville School
            District, 184 F.3d 296, 313 (1999)]. Once such a
            request is made, 'both parties have a duty to assist in the
            search for appropriate reasonable accommodation and
            to act in good faith.' Taylor, 184 F.3d at 312 (quoting
            Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir.
            1997)).

            To determine what appropriate accommodation is
            necessary, the employer must initiate an informal
            interactive process with the employee. 29 C.F.R. §
            1630.2(O)(3). This process must identify the potential
            reasonable accommodations that could be adopted to
            overcome the employee's precise limitations resulting
            from the disability. Ibid. Once a handicapped
            employee has requested assistance, it is the employer
            who must make the reasonable effort to determine the
            appropriate accommodation. Taylor, 184 F.3d at 311.



                                                                          A-0494-18T4
                                       20
             To show that an employer failed to participate in the
             interactive process, a disabled employee must
             demonstrate: (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. Id. at 319-20.

             [Ibid. (emphasis added).]

      In Tynan, we addressed a request for accommodation by a judiciary employee

who suffered from a variety of disabling conditions, including a stress and anxiety

disorder. 351 N.J. Super. at 399. The plaintiff had been employed for many years

and had an unblemished record, despite several medical conditions, until a new

person was assigned as her supervisor. Id. at 403. Following an extended period of

disability leave, the plaintiff requested to return to work, but she did not want to have

to report to her current supervisor. Id. at 394. In the alternative, she requested that

if she had to communicate with her supervisor that she do so only in writing. Id. at

401. The defendants did not respond to these requests, and ultimately treated her

failure to return to work as a resignation. Id. at 394-95.

      In reversing the trial court's grant of summary judgment to the defendants, we

found:

             Once the vicinage knew of the handicap and Tynan's
             desire for assistance, the burden was on the vicinage to

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                                          21
      implement the interactive process. See Taylor, 184
      F.3d at 315. If an extension of leave was not possible,
      then the vicinage had an obligation at that point,
      considering the information it possessed regarding
      Tynan's situation, to initiate the interactive process to
      determine what could be an acceptable accommodation
      to both sides. . . .

             ....

      [The plaintiff] has raised a factual dispute regarding
      whether the vicinage acted in bad faith by failing to
      initiate the interactive process. "[A]n 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." Taylor,184 F.3d 317-18. Tynan's
      failure to accommodate claim should not have been
      dismissed on summary judgment and must be
      determined by a jury.

      [Id. at 402-04.]

To establish a prima facie case of discrimination, a plaintiff must show:

      (1) plaintiff was handicapped or disabled within the
          meaning of the statute;

      (2) plaintiff was qualified to perform the essential
          functions of the position of employment, with or
          without accommodation;

      (3) plaintiff suffered an adverse employment action
          because of the handicap or disability; and

      (4) the employer sought another to perform the same
          work after plaintiff had been removed from the
          position.

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                                  22
                 [Victor, 401 N.J. Super. at 609.]

      A disability discrimination case alleging a failure to accommodate an

employee's disability does not require proof of the fourth element (although in this

case, it is undisputed that plaintiff was replaced upon being terminated). Id. at 610.

Once a plaintiff establishes a prima facie case of discriminatory discharge, the

burden shifts to the employer. Jansen, 110 N.J. at 382. The employer must then

establish that it reasonably determined that the employee's handicap prevented him

or her from working, or otherwise articulate some legitimate, "non-discriminatory

reason' for the employee's discharge." Id. at 382-83. "The employee may [then]

respond by proving by a preponderance of the evidence that the reason proffered by

the employer 'was not the true reason for the employment decision but was merely a

pretext for discrimination.'" Grande v. St. Clare's Health System, 230 N.J. 1, 19

(2017) (quoting Jansen, 110 N.J. at 382-83).

      The Supreme Court has held that "the reasonable-accommodation

consideration belongs in the second-prong" of the prima facie case analysis, and it

can be satisfied by a plaintiff "by putting forth evidence either that she was actually

performing her job or was able, with or without reasonable accommodation, to

perform her job to her employer's legitimate expectations." Id. at 21. Thus, when

the motion judge first determined that plaintiff failed to satisfy the second element


                                                                               A-0494-18T4
                                         23
of the prima facie case, and second found that defendants did not breach its duty to

engage in the interactive process, the judge essentially made two of the same

holdings.

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

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

of defendants' efforts to dispute that evidence." Zive v. Stanley Roberts, Inc., 182

N.J. 436, 448 (2005). Moreover, "[t]he 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.'" Id. at 447 (emphasis in original) (quoting Marzano v.

Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)).

                                           III

      Evaluating only the evidence presented by plaintiff, Zive, 182 N.J. at 448, and

viewing such evidence in a light most favorable to plaintiff, Brill, 142 N.J. at 540,

we conclude there are genuine issues of material fact for a jury to decide to

determine if defendants discriminated against plaintiff in violation of the LAD.

The material questions of fact for the jury to consider include:

                 • whether plaintiff was able to perform the
                   essential functions of her position at the time of
                   her termination;


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                                          24
                • whether defendants made a good faith effort to
                  assist plaintiff in seeking accommodations, or
                  engaged in good faith in the interactive process,
                  Tynan, 351 N.J. Super. at 400-01;

                • whether plaintiff stated to Ritter that she was not
                  ready to return to work;

                • whether defendants were sufficiently informed
                  that plaintiff was prepared to return to work on or
                  before March 23, 2015;

      As noted, plaintiff's leave of absence according to her written agreement with

defendants expired on March 2, 2015. Thereafter, however, defendants maintained

contact with plaintiff, extending her return-to-work dates multiple times, and

offering her the opportunity to present reasonable accommodations other than

working from home full-time. These communications culminated on March 25,

when plaintiff arrived at defendants' office for an appointment with Ritter regarding

her return to work, with paperwork from Dr. Kuris finding plaintiff "medically

cleared to return to work" and recommending "a limit of [six] hours in the

workplace," as required by defendants in the essential job functions form.

      Ritter wrote that during their meeting, plaintiff "inquired whether she should

discuss with her supervisor whether they can accommodate the restrictions," and

Ritter responded that she would refer plaintiff "back to her supervisor for that

discussion prior to any determination of work clearance." This was reflected in


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                                        25
Ritter's other notes, where she did not mark that plaintiff was "[u]nable to return to

work at this time," but rather marked "other" and wrote that plaintiff "has provided

medical documentation requesting work accommodations," which "is to be

discussed with her supervisor to see if accommodations can be accepted prior to

determination of return to work status."

       There was no communication with plaintiff thereafter, except for the letter of

termination on March 27. On March 26, Ritter spoke with Dr. Kuris, who estimated

that plaintiff would need to work from home two hours per day for two months

before being ready to work full time. Before this conversation, Ritter wrote that

Weinstein wanted her to "counter" Dr. Kuris' medical clearance, but she told him

that would be inappropriate. Ritter also wrote on March 26 that Weinstein "was in

agreement" with her that "he should determine if he can accommodate the

restrictions prior to any consideration for return to work." However, Weinstein

instead went ahead with terminating plaintiff, on the basis that plaintiff "reported to

[Ritter] that [she] was not 'emotionally ready' to return to work[,] and [plaintiff]

admitted [to Ritter] that [she was returning] only because [she] felt pressured into

it."   Weinstein confirmed in his deposition this was the only reason for the

termination.




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                                           26
      These facts first present a material issue of fact as to whether plaintiff was

capable of returning to work, with or without the accommodations offered in

defendants' essential functions form. An affirmative determination of this issue

would satisfy the second prong of plaintiff's prima facie case – the only prong in

dispute. Between Dr. Kuris' clearance at the time, the requested accommodation

satisfying defendants' essential job functions form, Ritter's refusal to mark plaintiff

as "[u]nable to return to work at this time," and plaintiff's denial at her deposition

that she told Ritter that she was not ready, there is sufficient evidence for a jury to

conclude that plaintiff was capable of returning to work – with some accommodation

– when she arrived at defendants' office on March 25.

      The motion judge himself essentially conceded there was a question of fact

regarding the differing opinions between Ritter and Dr. Kuris on the issue of

plaintiff's clearance – he stated "it was debatable, [and] it was a matter of

professional medical opinion" before dismissing the issue by stating the opinions

were too subjective. The judge made a factual determination on a material issue at

the summary judgment stage, and further erred failing to view the evidence in a light

most favorable to plaintiff.

      The record also presents a material issue of fact as to whether defendants

initiated the interactive process in good faith.      A reasonable factfinder could


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                                         27
conclude that defendants failed to satisfy this duty at multiple times during plaintiff's

leave, leading up to her termination. The point in time when a jury could find

defendants breached their duty occurred when Ritter told plaintiff she would arrange

a meeting with plaintiff's supervisor regarding the accommodation to work from

home for two hours per day, only for defendants to terminate plaintiff two days later,

without the meeting ever occurring. Defendants' good faith comes into question at

multiple other times:

                 • Fitzgerald emailed Weinstein twice in early
                   March inquiring when plaintiff will officially be
                   "severed";

                 • Weinstein sought to have Ritter challenge the
                   decision of Dr. Kuris that plaintiff could return to
                   work;

                 • Defendants emailed plaintiff at her work email
                   account, for the first time during her leave, on
                   March 11 that she can return to work by March
                   16 – they then sent the same email to her personal
                   Gmail account on March 15, the day before the
                   March 16 deadline;

                 • Defendants sent plaintiff the essential job
                   functions form on March 16, which required
                   plaintiff to "[w]ork a steady shift of at least six
                   hours in an office environment." Yet when Dr.
                   Kuris gave his approval and plaintiff showed it to
                   Ritter, she responded that plaintiff still needs to
                   discuss it with her supervisor (which never
                   ultimately happened);


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                                          28
                • Weinstein       agreed      to     consider    the
                  accommodations on March 26, only to fire
                  plaintiff on March 27 solely because Ritter
                  reported that plaintiff stated she was not ready, a
                  report that plaintiff disputes;

                • Before she met with plaintiff, Ritter was
                  informed that defendants "had a good candidate
                  that they [were] considering for hire for
                  [plaintiff's] position";

                • Ritter estimated having 100 return-to-work
                  appointments during her eight years with
                  defendants, yet she could "only recall denying
                  [plaintiff] out of the 100 people.

      In both his written and oral opinions, the motion judge emphasized that a key

factor in his decision was plaintiff's failure to meet the March 23 deadline of

submitting Dr. Kuris' paperwork, per Weinstein's March 16 email. The motion judge

found that since plaintiff received clearance from Dr. Kuris on March 19, then

missed the deadline, and did not submit the paperwork from Dr. Kuris until March

25, plaintiff was unwilling to return to work.

      We conclude the motion judge failed to view this evidence in a light most

favorable to plaintiff. On March 23, the date of the deadline, plaintiff emailed

defendants asking if they received the paperwork from Dr. Kuris, and inquired about

"making an appointment with [OCC] to try and return." When defendants stated

they had not received the paperwork, plaintiff responded that Dr. Kuris "said he


                                                                           A-0494-18T4
                                         29
would fill everything out and get it back today[,] [s]o I don’t know what happened,"

and that she would call Dr. Kuris' office.

      A rational factfinder could clearly determine that plaintiff was not unwilling

to return to work, but rather was actively seeking to return and have the paperwork

in by the deadline. Moreover, Weinstein's email states, "Please have your physician

return the enclosed [essential functions form] to me no later than March 23." There

is no clear threat of terminating or replacing plaintiff if the deadline was missed, and

plaintiff did reach out on that date, expecting the paperwork to have been submitted.

      Also regarding the missed March 23 deadline, the judge found, "That

defendant waited until after the March 25 . . . meeting before finalizing the decision

to terminate plaintiff is of no legal significance." The judge seemed to dismiss what

occurred after the missed deadline as immaterial; however, this conclusion would

potentially permit plaintiff's March 25 meeting with Ritter, and events thereafter, to

have been held by defendants in bad faith. Since such a determination would be in

violation of Tynan, this part of the judge's ruling clearly cannot be sustained.

      The motion judge's reliance on Svarnas is also misplaced. 326 N.J. Super. at

78 (citation omitted) ("An employee who demonstrates an inability to attend work

with any degree of predictability and reliability cannot be reasonably

accommodated.") In Svarnas, an employee who suffered from asthma and bodily


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                                         30
injuries from a car accident was absent for "more than 600 days in a twenty-two-

year period" and did not improve her attendance when allowed to work part-time as

requested. Id. at 80. Additionally, the employee's "absences were due to a host of

illnesses, not simply her claimed disabilities of asthma and the car-accident-related

injuries." Id. at 77. In that context, this court concluded that the employee "failed

to demonstrate that, with a reasonable accommodation, she would have been able to

perform her job functions satisfactorily." Id. at 80.

      Here, plaintiff worked for defendants for nearly twenty years. While she took

one leave in 2012, one leave in 2013, and worked from home for sixteen hours per

week in 2014, she always received positive evaluations, promotions, and raises.

Toward the end of the leave of absence in question, plaintiff received clearance to

return from Dr. Kuris, and sought to work in accordance with the essential job

functions form given by defendants. The motion judge erred in relying on Svarnas

given the facts of this case.

      After dismissing plaintiff's discriminatory discharge claims, the motion judge

determined he did not need to "elaborate further on [his] reasons for granting

summary judgment on plaintiff's retaliatory discharge claim." Since there are

multiple issues of fact for a jury to determine regarding the potentially

discriminatory discharge, and those issues directly relate to a prima facie retaliation


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                                         31
claim, we discern no basis in the record for the dismissal of plaintiff's retaliatory

discharge claim.

             [T]he prima facie elements of a retaliation claim under
             the LAD requires plaintiff to demonstrate that: (1)
             plaintiff was in a protected class; (2) plaintiff engaged
             in protected activity known to the employer; (3)
             plaintiff was thereafter subjected to an adverse
             employment consequence; and (4) that there is a causal
             link between the protected activity and the adverse
             employment consequence.

             [Victor, 203 N.J. at 409 (citing Woods-Pirozzi v.
             Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div.
             1996)).]

      Based upon our independent review of the motion record and in

consideration of controlling decisions of law, we conclude there existed material

facts in dispute in the motion record that preclude the summary judgment

dismissal of plaintiff's claims against defendants.

      Reversed and remanded. We do not retain jurisdiction.




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                                        32
