SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3959-15T1

FRANCES GRAU,

Plaintiff-Appellant,

v.

AHS HOSPITAL CORP., ATLANTIC

HEALTH SYSTEMS, INC., and

MORRISTOWN MEDICAL CENTER,

Defendant-Respondent.

__________________________________

Submitted May 15, 2017 – Decided

Before Judges Haas and Currier.

On appeal from Superior Court of New Jersey, 

Law Division, Morris County, Docket No. L-695-

14.

Colin M. Page & Associates, attorneys for 

appellant (Mr. Page and Evan Silagi, on the 

briefs).

Carmagnola & Ritardi, LLC, attorneys for 

respondent (Steven F. Ritardi, of counsel and 

on the brief; Sean P. Joyce and Philip A. 

Portantino, on the brief).

PER CURIAM

Plaintiff Frances Grau appeals from the Law Division's April 

7, 2016 order granting summary judgment and dismissing her claim 

NOT FOR PUBLICATION WITHOUT THE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.

June 2, 2017
2 A-3959-15T1

that her employer, defendant Atlantic Health Systems, Inc.

("AHS"), failed to accommodate her disability in violation of New 

Jersey's Law Against Discrimination, ("LAD"), N.J.S.A. 10:5-1 to 

-49. We affirm.

The following facts are derived from the evidence submitted 

by the parties in support of, and in opposition to, the summary 

judgment motion, viewed in a light most favorable to plaintiff, 

the non-moving party. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 

n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540 (1995)).

Plaintiff worked for twenty-six years as a nursing assistant 

in a cardiac unit at Morristown Medical Center, which is part of 

the AHS system of hospitals. As a nursing assistant, plaintiff's 

essential job functions involved the direct care of patients. 

More specifically, plaintiff was responsible for assisting

patients with activities of daily living, bathing and helping

patients with their hygiene maintenance, making beds, turning and 

positioning patients as needed, maintaining and stocking linen 

carts, and moving, maintaining, and returning all equipment used 

in patient care. In order to perform these functions, plaintiff 

was required to be able to occasionally lift up to 100 pounds of 

weight, while more frequently lifting ten to fifty pounds. She 

also needed to be able to push stretchers, chairs, and empty beds 
3 A-3959-15T1

and, as part of a team, a patient while in a bed, for distances 

of hundreds of feet.

On January 17, 2013, plaintiff fell at work. A month later, 

she was granted leave due to complaints of shoulder pain. On May 

3, 2013, plaintiff underwent shoulder surgery. AHS granted 

plaintiff's request for additional leave through June 24, 2013.

Plaintiff's manager testified at a deposition that AHS could 

not redistribute plaintiff's duties to other employees due to the 

existing staff's already heavy workload. While plaintiff was on 

leave, AHS backfilled her position by retaining per diem staff and 

having other staff members work overtime. However, if plaintiff 

could no longer perform her nursing assistant responsibilities, 

and still worked on the unit, the manager testified that AHS would 

have to hire a new employee for plaintiff's position, above and 

beyond the cardiac unit's budget, to cover the work plaintiff 

could not perform. 

 At the end of her leave period, plaintiff's treating 

physician told AHS that plaintiff could only return to work if she 

was placed on light duty and prohibited from lifting more than 

five pounds of weight. In addition, plaintiff was not able to 

engage in any pushing, pulling, or lifting overhead activities.

In accordance with its Transitional Duty Program and Return 

to Work ("RTW program") policy, AHS temporarily assigned plaintiff
4 A-3959-15T1

to sedentary, light-duty desk work in the Infection Control Unit 

beginning on June 24, 2013. The policy provided that this light 

duty was only available for ninety days.

Because plaintiff's physician told her that she could no 

longer perform the duties of a nursing assistant, AHS worked with 

plaintiff to try to find her a new position that did not require 

lifting. AHS provided plaintiff with training for Unit 

Representative and Registrar clerical positions, and extended the 

period for which she was eligible for the RTW program to enable 

her to complete this training. However, plaintiff testified that 

she was not able to "keep up with the pace" of the courses due, 

in part, to her lack of familiarity with computers. AHS also 

assisted plaintiff in the preparation of a new resume, provided

her with a list of positions that might be available, and advised

her on how to apply to the proper offices.

In October 2013, plaintiff participated in a Kinematic 

Functional Capacity Evaluation and Work Ability Assessment to 

determine her ability to perform the essential duties of a nursing 

assistant. The assessment concluded that because of her shoulder 

injury, plaintiff could not perform these duties due to the severe 

limitations on her capacity to lift, pull, and push the amount of 

weight needed to do this job.
5 A-3959-15T1

Pursuant to its RTW program policy, AHS discontinued 

plaintiff's light duty assignment on October 24, 2013, and placed 

her in the Health Insurance Cost Center, which enabled her to 

maintain her health insurance. AHS's Employee Relations Manager 

("ER manager") met with plaintiff to attempt to find her another 

job within the hospital system. However, plaintiff's physical 

limitations, coupled with her lack of technology or computer 

knowledge or experience, severely limited her options at AHS.

Each week, the ER manager reviewed a list of open positions 

to determine if plaintiff was qualified for them. However, due 

to the many restrictions on plaintiff's ability to work, the ER 

manager was not able to find an appropriate match. A manager in 

another AHS department also helped plaintiff during this period, 

but plaintiff was unable to locate a position for which she was 

qualified.

Plaintiff testified that she heard that there were 

"sitter/spotter" positions available at the hospital. According 

to plaintiff, an employee acting as a "sitter/spotter" would 

monitor patients who were at high risk of injuring themselves 

because of confusion or disorientation. However, there were no 

positions like this within AHS. Instead, the monitoring duties 

plaintiff was referring to were encompassed within the normal 
6 A-3959-15T1

responsibilities of a nursing assistant, which plaintiff could no 

longer perform due to her shoulder injury.

Plaintiff testified that although she would have liked to 

continue working, she chose to retire from her position and, with 

the assistance of her brother, she completed the necessary forms 

to do so. In February 2014, her retirement was approved. Shortly 

thereafter, plaintiff successfully applied for Social Security 

disability ("SSD") benefits. In her application for SSD, plaintiff 

asserted that she could not lift over five pounds and that her 

condition affected, among other things, her ability to walk, lift, 

bend, and reach.

On March 17, 2014, plaintiff filed a one-count complaint 

against AHS, claiming that her former employer failed to 

accommodate her disability in violation of the LAD. AHS filed an 

answer denying plaintiff's allegation and, at the conclusion of 

discovery, it filed a motion for summary judgment.

Following oral argument, Judge Stuart Minkowitz rendered a 

thorough written opinion granting AHS's motion and dismissing 

plaintiff's complaint. The judge found that plaintiff's shoulder 

injury qualified as a disability under the LAD. However, the 

judge further found that plaintiff failed to "show that she can 

perform the essential functions of her job either with or without 
7 A-3959-15T1

an accommodation." Therefore, the judge concluded that AHS did 

not violate the LAD.

In explaining his decision, Judge Minkowitz stated:

A [n]ursing [a]ssistant must physically assist 

patients, use medical equipment and [clean and 

maintain] patients' rooms. As specifically 

reflected in AHS's uncontested description of 

the essential and marginal functions of a 

[n]ursing [a]ssistant position, [p]laintiff 

must lift patients from their beds to assist 

with hygiene; transfer patients from beds to 

chairs; and turn and reposition bedfast 

patients to prevent bedsores. This requires 

physical manipulation of patients and supplies 

over twenty-five pounds, more specifically up 

to one hundred pounds occasionally and fifty 

pounds frequently, and this too is reflected 

in AHS's uncontested description of the 

essential and marginal functions of a 

[n]ursing [a]ssistant position. . . . AHS 

reasonably arrived at the conclusion that 

[p]laintiff could not perform the essential 

functions of a [n]ursing [a]ssistant as she 

admits at her deposition and in an email to 

[an AHS supervisor] that her shoulder injury 

was a permanent condition that prevented her 

from working as a [n]ursing [a]ssistant.

The judge continued:

Plaintiff also admits that she has a 

lifting restriction of twenty pounds or less. 

Moreover, [plaintiff's treating physician's] 

medical opinion, and the evaluation that AHS 

ordered confirmed th[e] conclusion [that 

plaintiff could not perform the essential 

functions of the nursing assistant position]. 

Plaintiff suggests a "sitter" position as an 

accommodation, yet this position also requires 

[p]laintiff [to] be able to lift and 

manipulate over twenty-five pounds as [acting 

as a] "sitter" is a part of a [n]ursing 
8 A-3959-15T1

[a]ssistant position. . . . Therefore, because 

[p]laintiff cannot prove that she can perform 

the essential functions of a [n]ursing 

[a]ssistant position either with or without 

an accommodation, she cannot prove a prima

facie element of her failure to accommodate 

claim. Accordingly, AHS cannot be found 

liable under [the] LAD[.]

This appeal followed.

On appeal, plaintiff contends that she established a prima 

facie case of failure to accommodate under the LAD, and the judge 

erred by granting AHS's motion for summary judgment and dismissing 

her complaint. We disagree.

"[W]e review the trial court's grant of summary judgment de 

novo under the same standard as the trial court." Templo Fuente 

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 

(2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J.

512, 524 (2012)). "That standard mandates that summary judgment 

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.'" Ibid. (quoting R. 4:46-

2(c)). 

[A] determination whether there exists a 

"genuine issue" of material fact that 

precludes summary judgment requires the motion 

judge to consider whether the competent 
9 A-3959-15T1

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, supra, 142 N.J. at 540.]

"To defeat a motion for summary judgment, the opponent must 

'come forward with evidence that creates a genuine issue of 

material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 

(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. 

v. State, 425 N.J. Super. 1, 32 (App. Div.), certif. denied, 211 

N.J. 608 (2012)), certif. denied, 220 N.J. 269 (2015). 

"[C]onclusory and self-serving assertions by one of the parties 

are insufficient to overcome the motion." Puder v. Buechel, 183 

N.J. 428, 440-41 (2005) (citations omitted). "When no issue of 

fact exists, and only a question of law remains, [we] afford[] no 

special deference to the legal determinations of the trial court." 

Templo Fuente De Vida, supra, 224 N.J. at 199 (citing Manalapan 

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The LAD prohibits an employer from denying "an otherwise 

qualified person with a disability" the opportunity to obtain or 

maintain employment "solely because" he or she is disabled. 

N.J.S.A. 10:5-29.1. Such action is considered an unlawful 

employment practice "unless it can be clearly shown that a person's 

disability would prevent such person from performing a particular 
10 A-3959-15T1

job." Ibid. The LAD "prevents only unlawful discrimination 

against disabled individuals" and "acknowledges the authority of 

employers to manage their own businesses." Zive v. Stanley 

Roberts, Inc., 182 N.J. 436, 446 (2005). Ultimately, "[w]hat 

makes an employer's personnel action unlawful is the employer's 

intent." Ibid. 

"All employment discrimination claims require the plaintiff 

to bear the burden of proving the elements of a prima facie case." 

Victor v. State, 203 N.J. 383, 408 (2010). "[T]he elements of the 

prima facie case vary depending upon the particular cause of 

action." Ibid. "The evidentiary burden at the prima facie stage 

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

plaintiff's factual scenario is compatible with discriminatory 

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

employer's action.'" Zive, supra, 182 N.J. at 447 (quoting Marzano 

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

In a reasonable accommodation case, a plaintiff must prove 

that he or she (1) was disabled within the meaning of the LAD; (2) 

"was qualified to perform the essential functions of the position 

of employment," with or without reasonable accommodation; and (3) 

"suffered an adverse employment action because of the disability." 

Victor v. State, 401 N.J. Super. 596, 614-15 (App. Div. 2008), 

aff'd in part, modified in part, 203 N.J. 383 (2010); see also
11 A-3959-15T1

Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 

(App. Div. 2001). 

The LAD also prohibits the discriminatory discharge of an 

employee based on a disability unless the employer "reasonably 

conclude[s]" 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. 10:5-4.1); see also Raspa v. Office of Sheriff of 

Gloucester, 191 N.J. 323, 338 (2007); Potente v. Cnty. of Hudson, 

187 N.J. 103, 110-11 (2006). The LAD "leave[s] the employer with 

the right to fire or not to hire employees who are unable to 

perform the job, 'whether because they are generally unqualified 

or because they have a handicap that in fact impedes job 

performance.'" Jansen, supra, 110 N.J. at 374 (quoting Andersen 

v. Exxon Co., 89 N.J. 483, 496 (1982)). 

Thus, an employer is not required to accommodate an employee 

who cannot perform his or her essential job functions even with 

an accommodation. Hennessey v. Winslow Township, 368 N.J. Super.

443, 452 (App. Div. 2004), aff'd, 183 N.J. 593 (2005); see also

Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 150 (3d 

Cir. 2004) (affirming summary judgment for employer because LAD 

does not require employer to accommodate employee who "was unable 

to perform any of the functions of his job"); Van de Pol v. Caesars 
12 A-3959-15T1

Hotel Casino, 979 F. Supp. 308, 313 (D.N.J. 1997) (granting summary 

judgment to employer because the LAD does not require employer to 

accommodate employee who "was not physically capable of safely 

performing any of his [or her] duties").

Generally, an employer must initiate a good faith 

"interactive process" regarding accommodations before determining 

that the employee's disability reasonably precludes performance 

of her essential job functions. Tynan v. Vicinage 13 of Superior 

Court, 351 N.J. Super. 385, 400 (App. Div. 2002). Employers can 

demonstrate such a good faith attempt by "meet[ing] with the 

employee[,] . . . request[ing] information about the condition and 

what limitations the employee has, ask[ing] the employee what he 

or she specifically wants, show[ing] some sign of having considered 

[the] employee's request, and offer[ing] and discuss[ing] 

available alternatives when the request is too burdensome." Taylor 

v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999). 

Participation in the interactive process is not a one-way 

street. It "is the obligation of both parties," and the "employer 

cannot be faulted if after conferring with the employee to find 

possible accommodations, the employee then fails to supply 

information that the employer needs or does not answer the 

employer's request for more detailed proposals." Ibid.
13 A-3959-15T1

Proof of the employer's failure to engage in the interactive 

process alone is not sufficient to meet the employee's prima facie 

burden. Donahue v. Consol. Rail Corp., 224 F.3d 226, 234 (3d Cir. 

2000); Victor, supra, 401 N.J. Super. at 614. The employee still 

has the burden to prove the basic essential elements of a 

discrimination case, and must show that reasonable accommodation 

for her disability was possible even where the employer acted 

wrongfully in failing to engage in the interactive process to find 

such an accommodation. Victor, supra, 401 N.J. Super. at 614-15. 

As part of that burden, the employee must prove that he or she was 

qualified to perform the job and that "the accommodation could 

have been reasonably achieved." Id. at 615; see also Potente, 

supra, 187 N.J. at 110. 

However, after a complaint is filed, the employee is required, 

as part of his or her burden of proof, to provide examples of what 

the employer could have done to accommodate their specific needs. 

Donahue, supra, 224 F.3d at 234-35. Where a plaintiff is unable 

to show that a reasonable accommodation existed, "the employer's 

lack of investigation into reasonable accommodation is 

unimportant." Id. at 233; Willis v. Conopco, Inc., 108 F.3d 282, 

285 (11th Cir. 1997).

Further, if an employee requests a transfer to another 

position, the employee must prove that (1) "there was a vacant, 
14 A-3959-15T1

funded position" available; (2) "the position was at or below the 

level of [the employee's] former job"; and (3) the employee "was 

qualified to perform the essential duties of this job with 

reasonable accommodation." Donahue, supra, 224 F.3d at 230; see 

also Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997). "[A]n 

employer is not required to 'bump' another employee in order to 

reassign a disabled employee to that position." Cravens v. Blue 

Cross & Blue Shield, 214 F.3d 1011, 1019 (8th Cir. 2000).

Applying these standards, and considering the facts in the 

light most favorable to plaintiff, we are satisfied that Judge 

Minkowitz properly granted summary judgment to AHS, and affirm 

substantially for the reasons expressed in his comprehensive April 

7, 2016 written decision. We add the following brief comments.

The record fully supports Judge Minkowitz's finding that even 

with an accommodation, plaintiff was unable to perform the 

essential duties of the nursing assistant position or other patient 

care jobs that might have been available at AHS prior to 

plaintiff's retirement. Because of her shoulder injury, plaintiff 

could no longer lift, push, or pull the amount of weight necessary 

to complete her assigned tasks. There were no permanent light 

duty positions available and, because plaintiff could not perform 

nursing assistant functions, AHS needed to hire a new employee to 

take her place.
15 A-3959-15T1

Plaintiff also failed to establish that there were other 

positions available within the hospital system that she could 

perform. AHS attempted to train plaintiff for administrative 

positions, but she was unable to complete the required courses or 

operate a computer. Contrary to plaintiff's contention, the record 

simply does not support her claim that she could have been retained 

as a "sitter" because there was no such position at AHS.

Plaintiff contends that AHS failed to participate in the 

interactive process. However, this argument ignores the many 

attempts AHS made to help plaintiff secure a non-patient-care 

position in the hospital system prior to her decision to retire. 

In addition to the training AHS offered plaintiff to transition 

to a new, administrative position, the ER manager reviewed 

available positions each week in order to determine whether 

plaintiff was suited for them. In spite of AHS's efforts, 

plaintiff was unable to identify any specific vacant position that 

AHS could have offered her as an accommodation.

Because plaintiff failed to demonstrate, as a matter of law, 

that she could perform her essential job functions even with an 

accommodation, Judge Minkowitz properly granted AHS's motion for 

summary judgment and dismissed plaintiff's complaint.

Affirmed.