Raspa v. Office of Sheriff

Justice LONG,

dissenting.

I would affirm the decision of the Appellate Division substantially for the reasons expressed in the thorough and thoughtful opinion of that court. In this Law Against Discrimination (LAD) case, the panel ruled that “[sjufficient evidence was presented to the jury for it to reasonably conclude that Raspa adequately performed the essential functions of a Corrections Officer in an existing position, which appropriately accommodated Raspa’s handicap, and to find that the proposed accommodation would not be too burdensome to the Sheriff.” Those conclusions are legally unexceptionable.

The jury was presented with a genuine issue of fact regarding whether inmate contact was essential to the function of a corrections officer. The Sheriffs Office relied on the New Jersey Department of Personnel (NJDOP) job specifications that detailed inmate contact responsibilities of a corrections officer to answer that question in the affirmative. Raspa countered that the job description specifically contains the caveat that:

Note: The examples of work for this title are for illustrative purposes only. A particular position using this title may not perform all duties listed in this job specification. Conversely, all duties performed on the job may not be listed.

Moreover, at trial, Raspa proffered evidence that positions existed within the county jail that did not require inmate contact; that he had served in such positions for three years without complaint; that at least one other corrections officer filled such a position on a permanent basis; that a corrections officer was not to leave those *343posts even in an emergency; and that, in any event, a corrections officer could perform other functions of the job listed in the NJDOP job specifications, such as observing inmates, if serving exclusively within those positions. Based on the record, there was evidence to support the jury’s conclusion that inmate contact was not an essential part of the job of a corrections officer.

That finding gave rise to the further issue of whether a reasonable accommodation for Raspa could take place without creating an “undue burden” for the Sheriffs Office. The Sheriffs Office argued that such an accommodation would be unduly burdensome because the “four” light duty positions within the institution had to be available for temporarily injured officers. According to the record, those positions were in the main control room which requires two or three officers per shift and in the second, third, and visitors’ control rooms, each of which requires at least one officer per shift. In the institutional setting, there are three daily shifts, thus requiring fifteen to eighteen officers on “light duty” over the course of a day. Moreover, the record reveals that the Sheriffs Office was able to assign injured corrections officers to positions outside of the facility, including posts in the records room, the communications department, and the county animal shelter. Thus, the Sheriffs argument that he would have had to “create” the “new” permanent light duty assignment for Raspa was simply unavailing. Against that backdrop, the jury could easily have found that the Sheriffs Office, having never even discussed an accommodation with Raspa, failed to fulfill its duty to consider a reasonable accommodation for him.

For those reasons, I would affirm the judgment of the Appellate Division and permit the jury verdict to stand.

Chief Justice ZAZZALI joins in this opinion.

For reversal and remandment — Justices LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS — 4. For affirmance — Chief Justice ZAZZALI, and Justice LONG— 2.