SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3223-15T4

SANDRA ROOPCHAND,

Plaintiff-Appellant,

v.

COMPLETE CARE, n/k/a FASTCARE, 

ROBERT J. FALLON, D.C., and 

RICHARD J. SCHALLER, M.D.,

Defendants-Respondents.

_____________________________

Argued May 16, 2017 — Decided 

Before Judges Reisner, Koblitz and Mayer.

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Docket No. L-3654-

14.

Edward F. Szep argued the cause for appellant 

(Law Offices of Emanuel S. Fish, attorneys; 

Mr. Szep and Emmanuel S. Fish, on the briefs).

Joshua L. Weiner argued the cause for

respondents Complete Care and FastCare (Budd 

Larner, P.C., attorneys; Mr. Weiner, of 

counsel and on the brief).

James P. Nolan and Associates, attorneys for 

respondents Robert J. Fallon and Richard J. 

NOT FOR PUBLICATION WITHOUT THE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.

August 3, 2017
2 A-3223-15T4

Schaller, join in the brief of respondents 

Complete Care and FastCare.

PER CURIAM

Plaintiff Sandra Roopchand, a medical technician, appeals 

from the grant of summary judgment to defendants Complete Care 

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

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

doctors alleging a pregnancy discrimination claim under the New 

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

was terminated, ostensibly for insubordination, after refusing 

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

After reviewing the allegations in the light most favorable to 

plaintiff, we reverse.

Plaintiff worked at the medical office for urgent care, 

primary care, rehabilitation, and chiropractic care, from January 

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

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

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

also owned the building that housed Complete Care. 

In January 2014, they sold their practice in preparation for 

retirement. The practice was renamed FastCare, and renovations 

were undertaken to expand the primary-care practice by converting 

the second floor, which had previously been used for billing, into 
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an area for patient care. The new owner also decided to reduce 

the staff by firing the registered nurses (RNs).

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

and remained operations managers for the practice. Although Dr. 

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

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

charge of staffing, including hiring and firing.

Plaintiff's duties included both patient care and 

administrative duties. Plaintiff described her duties as 

including:

patient care, collecting copays, checking 

patients in, collecting any balances due, 

updating demographic information. . . . 

triaging patients . . . [t]aking their chief 

complaints, doing vitals, completing any blood 

work ordered, EKGs ordered, preparing 

specimens to be sent out to the lab, glucose 

testing.

Plaintiff also restocked and cleaned the exam rooms. Part of 

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

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

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

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

2014, plaintiff was paid $15 an hour and worked between thirtysix and thirty-nine hours a week. Plaintiff worked a set schedule 

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

and Fridays off.
4 A-3223-15T4

During her employment, plaintiff was never disciplined. Dr. 

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

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

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

plaintiff worked primarily with Dr. Schaller, although she would 

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

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

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

additional responsibilities such as "calling in prescriptions, 

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

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

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

the new primary care physician.

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

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

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

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

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

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

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

was pregnant. During their first conversation about her pregnancy, 

plaintiff told Dr. Schaller that she "was spotting and . . . had 
5 A-3223-15T4

to go to the doctor." Dr. Schaller congratulated plaintiff on her 

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

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

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

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

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

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

and plaintiff was assigned to be the medical technician for that 

floor. 

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

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

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

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

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

passed along this information.

That same morning, plaintiff overheard a conversation between 

Drs. Fallon and Schaller that she initially did not consider 

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

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

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

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

that they were talking about her.
6 A-3223-15T4

The office was crowded with many patients that day. Because 

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

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

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

changing ballasts and water-stained ceiling tiles to ready the 

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

Fallon was cleaning the elevator.

Dr. Fallon stated in his deposition that although FastCare 

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

suspended the cleaning crew services to the second-floor because 

of the ongoing construction.

While plaintiff was busy working with a new patient who needed 

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

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

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

A. I honestly thought he was playing around. 

I didn't think he was serious.

Q. Why did you think he was playing around?

A. Because it's not part of my job 

description, number one. Number two, it's not 

something that anyone has ever asked me to do 

before nor have I seen anyone working there 

do before. So I really thought he was playing. 

We didn't have any type of disagreement early 

that morning. You know, we weren't, like, had 

any tension between each other or anything 

like that. So, you know, there were times 

where we did joke and play around. I said 
7 A-3223-15T4

that and I kept moving. I went back 

downstairs.

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

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

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

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

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

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

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

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

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

were upstairs and heard the exchange.

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

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

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

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

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

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

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

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

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

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

 

1 Defendants dispute that a ladder would have been required for 

plaintiff to clean the windows.
8 A-3223-15T4

her voice nor used inappropriate language in speaking to Dr. 

Fallon.

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

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

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

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

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

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

her termination was final. 

Prior to this incident, plaintiff had never before been asked 

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

asked to clean windows. Both parties agree that defendants did 

not have a written policy as to what constituted insubordination. 

According to plaintiff, a non-pregnant former employee named 

Lillian, who frequently argued forcefully with Dr. Fallon, 

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

insubordination. 

After she was fired, plaintiff successfully appealed the 

denial of unemployment benefits. Although in no way binding on 

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

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

claimant that her refusal to comply with the directive would result 

in her termination she would have informed him she was refusing 
9 A-3223-15T4

because of her high risk pregnancy." The Tribunal determined: "No 

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

was not discharged for misconduct connected with the work."

In his decision, the motion judge stated defendants offered

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

insubordination" for her termination and plaintiff could offer "no 

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

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

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

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

pregnancy was an assumption without any supporting facts. The 

judge also mistakenly stated that "there is no evidence whatsoever 

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

terminating her employment."

The judge also found that although the LAD requires that both 

the employee and employer participate in a reasonable 

accommodation process, the plaintiff had never asked for an 

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

although plaintiff alleged that her pregnancy was high-risk due 

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

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

any work restrictions."
10 A-3223-15T4

Summary judgment must be granted "if the pleadings, 

depositions, answers to interrogatories and admissions on file, 

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

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

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

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

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

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

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

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

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

Effective January 17, 2014, the Legislature modified the LAD 

to incorporate "pregnancy" as a protected characteristic. 

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

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

make reasonable accommodation to a pregnant employee and noted its 

intention:

to combat this form of discrimination by 

requiring employers to provide reasonable 

accommodations to pregnant women and those who 

suffer medical conditions related to pregnancy 

and childbirth, such as bathroom breaks, 

breaks for increased water intake, periodic 

rest, assistance with manual labor, job 

restructuring or modified work schedules, and 

temporary transfers to less strenuous or 

hazardous work.

[N.J.S.A. 10:5-3.1(b) (emphasis added).] 
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The amendment to the LAD makes it unlawful "[f]or an employer 

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

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

manner less favorable than the treatment of other persons not 

affected by pregnancy but similar in their ability or inability 

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

an employer to: 

make available to the employee reasonable 

accommodation in the workplace . . . for needs 

related to the pregnancy when the employee, 

based on the advice of her physician, requests 

the accommodation, unless the employer can 

demonstrate that providing the accommodation 

would be an undue hardship on the business 

operations of the employer.

When analyzing a claim under the LAD that addresses the 

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

burden-shifting methodology articulated in McDonnell Douglas Corp. 

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

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

Under this methodology, a plaintiff must first present a

prima facie case of discrimination and may use circumstantial 

 

2 Prior to enactment of this law, the LAD was interpreted to 

prohibit discrimination against pregnant employees as gender

discrimination. See Rendine v. Panter, 141 N.J. 292, 298 (1995); 

Farley v. Ocean Twp. Bd. of Educ., 174 N.J. Super. 449, 452 (App. 

Div.), certif. denied, 85 N.J. 140 (1980); Gilchrist v. Bd. of 

Educ., 155 N.J. Super. 358, 368 (App. Div. 1978).
12 A-3223-15T4

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

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

plaintiff's factual scenario is compatible with discriminatory 

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

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

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

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

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

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

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

The employer then has the opportunity to challenge the 

inference of discrimination by articulating a "legitimate, 

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

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

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

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

discrimination and not the true reason for the employment 

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

supra, 182 N.J. at 449).

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

the reason offered by the employer was pretextual by "either 

circumstantial or direct evidence that 'discrimination was more 

likely than not a motivating or determinative cause of the action' 
13 A-3223-15T4

or plaintiff can discredit the legitimate reason provided by the 

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

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

of proving that the employer intentionally discriminated remains 

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

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

The elements of the prima facie test vary depending on the 

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

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

termination cases, in which a plaintiff must prove that: 

(1) he [or she] was in the protected group; 

(2) he [or she] was performing his job at a 

level that met his [or her] employer's 

legitimate expectations; (3) he [or she]

nevertheless was fired; and (4) the employer 

sought someone to perform the same work after 

he [or she] left.

[Zive, supra, 182 N.J. at 450; see also

Rendine v. Pantzer, 276 N.J. Super. 398, 434-

35 (1994), aff'd, 141 N.J. 292 (1995) 

(relating the burden-shifting scheme in a LAD 

termination case for pregnancy 

discrimination).]

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

applicable here. Prong four has also been articulated as requiring 

a plaintiff to prove "she was terminated under circumstances that 

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

Hobart W. Grp., 385 N.J. Super. 448, 463 (App. Div. 2005) (citing 
14 A-3223-15T4

Williams v. Pemberton Twp. Pub. Sch., 323 N.J. Super. 490, 733 

(App. Div. 1999)). 

Viewing her contentions in the light most favorable to her, 

plaintiff made out a prima facie case for disparate treatment 

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

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

was performing her work responsibilities; 3) she suffered the 

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

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

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

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

raising an inference of unlawful discrimination. 

Plaintiff asserts that defendants' proffered reason for her 

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

clean windows, when pregnant, does not constitute insubordination. 

Plaintiff also argues that she requested a reasonable 

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

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

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

advice. She maintains she was penalized for the request.

Defendants respond that plaintiff never requested a 

reasonable accommodation for her pregnancy. They note that 

plaintiff at no point stated that she had restrictions based on 
15 A-3223-15T4

her pregnancy. Defendants add that even if plaintiff did make a 

reasonable accommodation request, the request was not based on the 

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

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

doctor weekly made a legally sufficient request for an 

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

pregnancy discrimination. 

She submitted sufficient evidence for a reasonable jury to 

infer that her termination was a pretext for unlawful 

discrimination. Plaintiff argues that she did ask for a reasonable 

accommodation from Dr. Schaller based on the advice of her 

physician; that the work responsibilities of a medical 

assistant/technician do not include climbing ladders to wash 

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

accommodation in particular because her pregnancy was high-risk.

Viewing plaintiff's claim in its most favorable light, 

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

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

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

was terminated for her refusal to do so, although another, nonpregnant employee who was persistently insubordinate was not 

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

doctor weekly is viewed as a doctor-directed pregnancy 
16 A-3223-15T4

accommodation, plaintiff demonstrated sufficient evidence of 

pregnancy discrimination to survive summary judgment.

Reversed.