MALCOLM SINCLAIR v. DOMB LIGHTING AND ELECTRICAL SUPPLY COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4903-07T24903-07T2

MALCOLM SINCLAIR,

Plaintiff-Appellant,

v.

DOMB LIGHTING AND ELECTRICAL

SUPPLY COMPANY,

Defendant-Respondent.

______________________________

 

Argued February 24, 2009 - Decided

Before Judges Skillman, Graves and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Docket No.

L-2833-05.

Kevin E. Barber argued the cause for

appellant (Niedweske Barber, attorneys;

Linda J. Niedweske and Christopher W. Hager,

of counsel; Mr. Barber, on the brief).

Jeffrey D. Ullman argued the cause for

respondent (Ullman, Furhman & Platt,

attorneys; Mr. Ullman, on the brief).

PER CURIAM

Plaintiff Malcolm Sinclair appeals from a judgment dismissing his claim of disability discrimination after ten days of trial. He faults the trial judge's legal ruling with respect to the required elements of his cause of action and her factual findings on the sufficiency of evidence he presented. We conclude that the trial judge's understanding of the law and assessment of the evidence were both correct. Therefore, we affirm.

I

The trial judge granted defendant's motion to dismiss at the conclusion of plaintiff's case in chief under Rule 4:37-2(b) and Rule 4:40-1. Under those rules, the judge was required to view all evidence presented and all reasonable inferences drawn from that evidence most favorably to plaintiff to determine whether a rational jury could have found in favor of plaintiff on his claim of disability discrimination. R. 4:37-2(b); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005). If, applying this standard, "reasonable minds could differ, the motion must be denied." Sons of Thunder v. Borden, Inc., 148 N.J. 396, 415 (1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). On appeal, our standard of review is the same as that of the trial judge. RSB Lab. Serv., Inc. v. BSI Corp., 368 N.J. Super. 540, 555 (App. Div. 2004).

It is not the function of the trial judge or an appellate court, but that of the jury, to evaluate the credibility of the testimony or other evidence. See Potente v. County of Hudson, 187 N.J. 103, 111-12 (2006). Nevertheless, "when the proof of a particular fact is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist there is no question for the jury to decide." Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 493 (1956); see also City Check Cashing, Inc. v. Mfrs. Hanover Trust Co., 166 N.J. 49, 64-65 (2001) (no triable issue of fact where no rational jury could view the evidence in favor of plaintiff); cf. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 532-40 (1995) (similar standards apply to summary judgment under R. 4:46-2(c) and a motion for dismissal under R. 4:37-2(b), including whether the evidence "is so one-sided that one party must prevail as a matter of law")(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

In this context, we may take into consideration the entirety of testimony from a witness rather than isolated excerpts favorable to the party opposing a motion to dismiss. See Ritondo v. Pekala, 275 N.J. Super. 109, 111 (App. Div. 1994) (during cross-examination, plaintiff's expert "nullified" and "abandoned" opinions he expressed in direct testimony).

II

Plaintiff worked thirty-eight years for defendant Domb Lighting and Electrical Supply Company before he was terminated at the age of seventy-four following a serious illness. In the later years of his employment, he worked as a "counterman," spending eighty percent of his time pricing invoices for electrical contractors. Some of his other duties were waiting on customers and receiving and making phone calls. In the two years or so before his termination, his work duties were sedentary and required no heavy lifting. During his tenure at Domb, plaintiff was considered a loyal and dedicated employee.

In 2001, at the age of seventy-two, plaintiff took temporary disability leave for quadruple bypass surgery. After he recovered from the surgery, plaintiff communicated with Doris Clemente, the bookkeeper at Domb, to arrange his return to work. Domb gladly accepted him back, requiring only a note from his doctor indicating that he was medically cleared to work. Plaintiff provided a handwritten note from his cardiologist stating that he was cleared to return to work the following week. Domb accommodated plaintiff's heart condition by modifying his schedule and reducing some of his duties, in particular any lifting and similar manual tasks that he had previously done. Plaintiff was completely satisfied with these accommodations.

Two years later, on September 4, 2003, plaintiff was unexpectedly hospitalized with pancreatic cancer. Emergency surgery was performed. He remained hospitalized through September 26, 2003, and then continued his recovery at home. Up to October 21, 2003, Domb paid plaintiff his regular salary by applying sick, vacation, and personal days to his absence. As of that date, plaintiff had missed thirty-four consecutive days of work and no longer had leave time available.

Plaintiff then obtained temporary disability benefits through November 30, 2003. In applying for those benefits, plaintiff verified that he was completely disabled from working because of his cancer. Plaintiff's surgeon, Dr. William Diehl, also confirmed his disability by certifying to the Division of Disability Benefits on October 16, 2003, that plaintiff was ill with pancreatic cancer and would not be able to return to work until December 1, 2003.

During October 2003, plaintiff's daughter Christine was in contact with Doris Clemente at Domb, generally seeking assistance with medical insurance and disability benefits. According to Christine's testimony at trial, she told Clemente that her father intended to return to work and gave her a note written by Dr. Diehl regarding plaintiff's absence through December 1, 2003. When Clemente was called to testify at trial, she denied receiving the note. The note was admitted in evidence. It was typed on Dr. Diehl's letterhead and dated October 27, 2003, and it stated in full:

RE: Malcolm Sinclair

To Whom It May Concern:

Mr. Malcolm Sinclair underwent surgery for treatment of cancer of the pancreas. He is still recovering from the surgery and will not be able to return to work until 12/01/2003. Should you have any questions, please feel free to contact me at any time.

William L. Diehl, M.D.

Neither Christine, plaintiff himself, nor anyone else ever made any specific request for workplace accommodations.

In his case in chief, plaintiff called Leslie Domb Platt, president and CEO of Domb, to testify about the circumstances of plaintiff's termination. Platt denied ever receiving Dr. Diehl's note or learning from anyone else that plaintiff intended to return to work on December 1, 2003. She admitted that she never considered any accommodations for plaintiff before deciding to terminate him. She said she would have accepted him back at work and considered accommodations if plaintiff had asked for them. She was familiar with the seriousness of pancreatic cancer and believed that few people stricken by it recover. Her belief was consistent with the testimony of Dr. Diehl, who acknowledged statistical data that only five percent of patients stricken with pancreatic cancer recover. Plaintiff has been one among the small percentage of survivors.

Platt testified she decided to terminate plaintiff on the advice of counsel and her insurance agent. She said that Domb's insurance carrier did not allow the company to carry an absent employee after allotted leave time had been used. Although she knew plaintiff qualified for Medicare, she became concerned that plaintiff's wife did not yet qualify. She decided on October 29, 2003, to terminate plaintiff's employment both to comply with the requirements of the company's insurance policies and to give adequate notice to plaintiff and his wife so that they could make alternative arrangements for medical insurance coverage. With the assistance of legal counsel, she wrote a letter dated November 4, 2003, stating that plaintiff's employment would be terminated effective November 30, 2003. Most of the letter pertained to information about COBRA coverage for medical insurance.

After his termination, plaintiff continued to suffer from very serious health problems. He began a regimen of chemotherapy on November 23, 2003. He reacted poorly, developing a rash, nausea, diarrhea, and severe swelling. On December 8, 2003, he was admitted to Morristown Memorial Hospital and was diagnosed with acute chemotherapy toxicity and internal bleeding from an ulcer. Later during his hospitalization, he was also diagnosed with colon cancer. In late January 2004, plaintiff was discharged from the hospital to a rehabilitation facility. He did not return home until February 2004. He needed additional surgery for his colon cancer, but that surgery was delayed until April 2004 to allow him to regain some strength. Having endured these successive medical misfortunes, plaintiff decided to consider himself retired. He testified that he could not work any longer.

Nevertheless, plaintiff also testified that he could have performed the essential functions of the counterman job as of December 1, 2003. On cross-examination, however, he said that he was not able to work after early December because of the complications resulting from chemotherapy and his other ailments. Thus, plaintiff's case turned on whether he was able to return to work for a few days in early December 2003.

Dr. Diehl testified on direct examination that plaintiff could have returned to work on December 1, 2003, but would have required occasional days off for chemotherapy, and he would not be permitted to lift more than twenty pounds. On cross-examination, Dr. Diehl testified that his last contact with plaintiff before December 1, 2003, was a routine post-operative office visit on November 10, 2003. At that time, plaintiff was doing well in his recovery, but he had not yet begun chemotherapy, which Dr. Diehl acknowledged often caused serious side effects and illness.

Dr. Diehl testified further on cross-examination that his opinion given in October about the December 1st return date was based on the information available to him at that time and was a prediction of future events. He testified that he was not aware then of conditions shown in plaintiff's medical examinations from late November and early December 2003, including swelling of tissues; a pleural effusion, which he described as fluid abnormally collected between the lungs and ribs; shortness of breath; feelings of weakness; and recurring diarrhea with bleeding. Challenged on the accuracy of his prediction that plaintiff could have returned on December 1st, Dr. Diehl testified, "If I had information . . . that was available to me subsequent to when I said he could go back to work it might change my opinion of when he could go back to work." Pressed further with the question, "If you had the facts it might have affected your opinion? Correct?", Dr. Diehl answered, "Yes. That's correct."

In October 2005, plaintiff filed a two-count complaint against Domb alleging age and disability discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-4. During the discovery period, defendant Domb repeatedly demanded that plaintiff provide information about what accommodations Domb should have provided to plaintiff so that he could resume work beginning on December 1, 2003. In his deposition testimony, plaintiff had no complaints about accommodations. He said that the prior arrangement with a reduced work schedule and no heavy lifting was sufficient. In response to defendant's interrogatories, plaintiff's attorney took the position that plaintiff did not have to provide discovery on what the appropriate accommodation would have been because that was a legal, not a factual, matter.

Defendant moved for sanctions barring evidence at trial on the issue of reasonable accommodation, and also for summary judgment. The motion judge granted summary judgment against plaintiff on his claim of age discrimination, but denied summary judgment on disability discrimination.

At the beginning of trial, defendant again moved in limine to bar evidence from plaintiff regarding any potential accommodation that could have been made for his disability because he had not provided any discovery on that question. At the same time, defendant moved to dismiss plaintiff's remaining claim of disability discrimination, arguing that without evidence of what reasonable accommodation was available, plaintiff could not satisfy all the essential elements of a claim based on failure to accommodate his disability. The trial judge ruled that plaintiff's presentation at trial would be limited to the discovery he had provided. She expressed strong doubt that plaintiff could satisfy all elements of his claim, but the judge allowed plaintiff to present his case to the jury rather than dismiss his claim before trial.

At the conclusion of plaintiff's case in chief, defendant moved again to dismiss plaintiff's claim under Rule 4:37-2(b) and Rule 4:40-1. After lengthy argument and colloquy, the trial judge granted defendant's motion and dismissed plaintiff's complaint. The trial judge found that plaintiff never asked Domb to provide accommodation for his 2003 disability, and plaintiff failed to introduce any evidence that his disability could have been reasonably accommodated. As a result of these findings, the judge concluded that plaintiff had failed to present prima facie proof that he was a "qualified individual" for the job. Plaintiff filed a timely notice of appeal.

III

Plaintiff first contends that the trial judge was legally incorrect in requiring that he introduce evidence of a reasonable accommodation that could have been made to allow him to resume working on December 1, 2003. Relying upon Armstrong v. Burdette Tomlin Memorial Hospital, 438 F.3d 240 (3d Cir. 2006), he argues that he had no obligation to prove what accommodation could have been provided. Also, relying upon Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999), he argues that Domb failed to engage in "an interactive process" to find an accommodation for him, as required by law, and that Domb's failure is sufficient to satisfy plaintiff's burden of proving a prima facie case of disability discrimination. Plaintiff's legal argument is incorrect.

As a preliminary matter, plaintiff's citation of federal cases is appropriate in the context of a New Jersey LAD case. Federal case law is a "key source of interpretive authority" for the LAD. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990); Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 421-22 (App. Div. 2001). The LAD prohibits employment discrimination based on a disability, N.J.S.A. 10:5-4, as do federal statutes, the Americans with Disabilities Act, 42 U.S.C.A. 12112, and section 504 of the Rehabilitation Act, 29 U.S.C.A. 794.

We also note that the LAD does not use the terms "reasonable accommodation" or "interactive process" in its statutory provisions. Reasonable accommodation of a disability is required of employers by regulation promulgated under the LAD, N.J.A.C. 13:13-2.5, and by cases interpreting the LAD, see, e.g., Potente v. County of Hudson, supra, 187 N.J. at 110; Viscik v. Fowler Equip. Co., 173 N.J. 1, 11 (2002); Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App. Div. 2001). A "reasonable accommodation" case is a type of LAD claim based on disability. See Viscik, supra, 173 N.J. at 11.

To establish the specific proofs required of plaintiff, we begin by reviewing the basic elements of a prima facie case of discriminatory termination based on disability: (1) that plaintiff had a disability within the meaning of the law, (2) that he was performing his job at a level that met the employer's legitimate expectations, (3) that he nevertheless was terminated, and (4) that the employer sought someone else to perform the same work. Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, 480-81 (1991); Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 382 (1988). In a reasonable accommodation case, the first three listed elements satisfy plaintiff's initial burden of proof. Bosshard v. Hackensack Univ. Med. Ctr., supra, 345 N.J. Super. at 91; Donahue v. Consol. Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000).

In this case, there is no dispute that plaintiff Sinclair was disabled by his illness, pancreatic cancer, and that he was terminated from employment with defendant Domb. Defendant does not contest the first and third elements of plaintiff's basic prima facie case of disability discrimination. The only disputed element is the second one, whether plaintiff was qualified to perform his job as a counterman as of December 1, 2003, had Domb provided reasonable accommodation.

This second prima facie element is sometimes expressed as whether the employee could perform the essential functions of the job with or without reasonable accommodation. Soules v. Mount Holiness Mem'l Park, 354 N.J. Super. 569, 576 (App. Div. 2002); Svarnas v. AT&T Communications, 326 N.J. Super. 59, 74-76 (App. Div. 1999). Reasonable accommodations could include modification of the job duties, work environment, or work schedule, among other terms of employment, addressing the specific limitation posed by the disability and not imposing an undue hardship upon the employer. See N.J.A.C. 13:13-2.5.

In Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super. 385 (App. Div. 2002), we discussed in further detail the second prima facie element. Relying on federal precedents, we first held that upon the employee's request for reasonable accommodation, which may be informal and without use of any specific words, the employer has a duty to engage in an informal "interactive process" with the employee to identify potential reasonable accommodations that would allow the disabled employee to perform the job. Id. at 400 (citing Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000); Taylor v. Phoenixville Sch. Dist., supra, 184 F. 3d at 312-13; Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997)). The duty to engage in an interactive process is included in federal regulations applicable to employment discrimination. 29 C.F.R. 1630.2(o)(3). "Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine appropriate accommodation." Tynan, supra, 351 N.J. Super. at 400 (citing Taylor v. Phoenixville Sch. Dist., supra, 184 F. 3d at 311).

In Tynan, we summarized the required proofs pertaining to the interactive process and reasonable accommodation. We said the employee must demonstrate that:

(1) the employer knew about the employee's disability;

(2) the employee requested accommodations or assistance for [his] 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 400-01 (citing Jones v. Aluminum Shapes, Inc., supra, 339 N.J. Super. at 425)].

Thus, in Tynan, we held that a plaintiff must present evidence that the employer did not act in good faith and that the employee's disability could have been reasonably accommodated.

More recently, in Victor v. State of New Jersey, 401 N.J. Super. 596 (App. Div. 2008), we noted that the four elements listed in Tynan supported plaintiff's claim that he was qualified to perform the essential functions of the job, that is, the second basic element of a prima facie case of disability discrimination. Id. at 614-15.

Putting these several cases together, we can summarize the elements of proof required of plaintiff Sinclair in the circumstances of this case:

(1) plaintiff was disabled;

(2) Domb knew about his disability;

(3) plaintiff requested accommodations or assistance for his disability;

(4) Domb did not make a good faith effort to assist him in seeking accommodations by engaging in an interactive process for that purpose;

(5) plaintiff could have been reasonably accommodated but for Domb's lack of good faith in failing to engage in the interactive process; and

(6) plaintiff was terminated from his job.

Here, Domb does not dispute four of these six elements. Only the third and fifth listed elements of proof are in dispute.

Plaintiff contends that, because Domb failed to engage in an interactive process to find accommodations for his illness, he is not required to prove what reasonable accommodation was possible. A similar argument was squarely rejected in Donahue v. Consolidated Rail Corp., supra, 224 F.3d at 232-35. There, the plaintiff suffered from a condition that occasionally caused his heart to beat irregularly and subjected him to loss of consciousness. He argued that his employer, Conrail, had failed to engage in an interactive process to find him an alternative position when his doctor warned against his working in or near moving trains.

The United States Court of Appeals held that proof alone of the employer's failure to engage in the interactive process was not sufficient to meet the plaintiff's prima facie burden. Id. at 234. Citing Mengine v. Runyon, supra, 114 F.3d at 418, and Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996), the court held that plaintiff must still show that reasonable accommodation for his disability was possible even where the employer has acted wrongfully in failing to engage in the interactive process to find such an accommodation. Donahue, supra, 224 F.3d at 234. The court also rejected the plaintiff's argument that Taylor v. Phoenixville School District, supra, 184 F.3d at 318, had held otherwise. Donahue, supra, 224 F.3d at 234-35.

In Victor v. State, supra, 401 N.J. Super. 596, we, too, rejected an argument similar to the one made by plaintiff Sinclair. We held in Victor that plaintiff still has the burden of proof as to the basic essential elements of a discrimination case. Id. at 614 (citing Zive v. Stanley Roberts, Inc., supra, 182 N.J. at 450). As part of that burden, plaintiff must prove that he was qualified to perform the job. Ibid. We confirmed that plaintiff must prove that "the accommodation could have been reasonably achieved." Id. at 615.

Here, plaintiff mistakes the employer's legal duty to make an effort to find a reasonable accommodation at the time plaintiff requests assistance with the burdens of proof in litigation once a lawsuit has been filed. In the first instance when he requests assistance, a disabled plaintiff does not have to state what specific accommodation he is seeking. Tynan v. Vicinage 13, supra, 351 N.J. Super. at 399; Armstrong v. Burdette Tomlin Mem'l Hosp., supra, 438 F.3d at 246-48. That is so because the employer is in a better position than the employee to know what can be done to accommodate the disability and what modifications would not unduly interfere with the employer's business operations. See Taylor v. Phoenixville Sch. Dist., supra, 184 F.3d at 316; Mengine v. Runyon, supra, 114 F.3d at 420.

But after a lawsuit is filed, the employee has litigation tools available to him, including discovery from the employer and the assistance of counsel, to investigate facts and the law. Through those tools, the employee can and should determine what the employer could have done to accommodate his specific needs. See Donahue, supra, 224 F.3d at 234; accord Jackan v. N.Y. State Dep't of Labor, 205 F.3d 562, 567 (2d Cir. 2000); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999)(en banc); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997). In the last cited case, the United States Court of Appeals for the Eleventh Circuit said, "where a plaintiff cannot demonstrate 'reasonable accommodation,' the employer's lack of investigation into reasonable accommodation is unimportant." Willis, supra, 108 F.3d at 285.

In litigation, it is not unfair to require that the plaintiff who is making a claim prove that he is entitled to recover damages from the defendant because a reasonable accommodation for his disability did exist. Assigning to the plaintiff the burden of proving that fact is equivalent to placing the burden on any plaintiff in a lawsuit to prove that he actually was damaged by the defendant's unlawful conduct. It is no different from the normal allocation of burdens of proof in litigation.

In sum, plaintiff is incorrect on the applicable law, and the trial judge was correct, in ruling that plaintiff Sinclair was required to prove as part of his prima facie case that a reasonable accommodation for his disability actually existed. See Donahue, supra, 224 F.3d at 229, 233; Victor, supra, 401 N.J. Super. at 615.

IV

The trial judge found that plaintiff's proofs did not satisfy a prima facie case in three ways: (1) plaintiff did not ask for accommodation, (2) plaintiff did not show that a reasonable accommodation for his illness existed, and (3) plaintiff was too ill to perform his job. Plaintiff argues that these were factual issues for the jury to decide. Defendant responds that plaintiff was indisputably unable to work at the time of Platt's termination letter of November 4, 2003, as evidenced by his own and Dr. Diehl's certifications for disability benefits, and consequently he was not qualified to perform the job when he was terminated.

Although defendant's argument would eviscerate many valid claims of disability discrimination, plaintiff also seems to focus upon November 4th as the relevant date. Plaintiff argues that discrimination occurred on November 4, 2003, when Platt terminated his employment without ever exploring with him, his daughter, or Dr. Diehl what could be done to accommodate his illness. He contends he had no opportunity to ask for an accommodation.

Although the alleged act of discrimination occurred on November 4th, the more relevant date for purposes of plaintiff's prima facie proofs is December 1, 2003, when plaintiff and his doctor said he could have returned to work. See Soules v. Mount Holiness Mem'l Park, supra, 354 N.J. Super. at 577 (relevant time regarding whether plaintiff was qualified to perform the job is when plaintiff claims he could have returned to work with reasonable accommodations). Before that date, plaintiff acknowledges that he was not qualified to perform the job because of his illness. Therefore, the focus of the proofs is more appropriately placed on December 1, 2003.

Concerning a request for accommodation, plaintiff argues that Dr. Diehl's note of October 27, 2003, was sufficient notice to defendant that he intended to return on December 1st and that the note should have triggered the employer's duty to engage in the interactive process to find reasonable accommodations. He argues that a similar note from his cardiologist in May 2001 was sufficient to alert defendant Domb that he was returning to work and needed some minor accommodations.

While a comparison of the two doctors' notes may lead to different conclusions about how they may reasonably have been interpreted by the employer the 2001 cardiologist's note clearing defendant to return within a week and Dr. Diehl's 2003 note excusing him from returning to work for another five weeks we will not engage in nuanced distinctions on a motion to dismiss. Dr. Diehl testified that his intent in writing the note was to convey that plaintiff was cleared to return on December 1st. Crediting the testimony of Christine that she gave the note to defendant, and Dr. Diehl's testimony about the intent of the note, we will accept that the note was sufficient for the jury to conclude that plaintiff notified defendant of his intent to return on December 1st. Still, the note did not make any express reference to accommodation. In fact, the note did not request anything; it simply said that plaintiff could not work until December 1st because he was recovering from his cancer surgery.

Plaintiff cannot argue on appeal that the note was a request to extend his disability leave and keep his job open. The trial judge barred plaintiff's attorney from questioning witnesses about the possibility of an extended leave of absence because plaintiff had not disclosed that form of accommodation during discovery. Cf. Muller v. Exxon Research and Eng'g Co., 345 N.J. Super. 595, 608 (App. Div. 2001), certif. denied, 172 N.J. 355 (2002) (employer's duty of reasonable accommodation may be granting the employee a reasonable time to recover from illness). Plaintiff has not challenged that ruling directly. Even if plaintiff had been permitted to make such an argument, however, he would not have satisfied all elements of a prima facie case. As matters unfortunately developed, plaintiff was unable to resume working in any meaningful way in early December 2003 or at any time after that.

Dr. Diehl testified that plaintiff could have returned to work on December 1, 2003, with occasional time off to attend chemotherapy and with no heavy lifting. Defendant Domb was willing to provide such an accommodation. Platt testified that Domb was willing to modify his schedule further, so that he could continue his chemotherapy or other treatment, and even to give him a ride to work if that is what he needed. There was no need for a modification concerning heavy lifting because that change in his job duties had already been in place since plaintiff's 2001 cardiac illness. Considering the severity of plaintiff's medical problems, the accommodations suggested by Dr. Diehl were not sufficient to permit plaintiff to resume working.

On or about December 1st, plaintiff was suffering from illnesses resulting from his chemotherapy, including a rash, nausea, diarrhea, and severe swelling. He was bleeding from an ulcer, and later diagnosed also with colon cancer. He was so ill that within a week, on December 8th, he was hospitalized and remained incapacitated in a hospital or rehabilitation center continuously from that date through February 2004.

Dr. Diehl acknowledged that plaintiff's medical symptoms and circumstances that arose after his chemotherapy began would have affected the doctor's opinion about plaintiff's ability to return to work on December 1st. He admitted that his opinion did not take into account the debilitating side effects of the chemotherapy, or the diagnosis of an ulcer and colon cancer. His certification for disability benefits and his note for the employer were both based on information that was available in October 2003 and did not include later examinations revealing swelling of tissues, pleural effusion, weakness, shortness of breath, a rash, and diarrhea with bleeding.

Thus, the evidence showed that, even if plaintiff's leave had been extended through November 30, 2003, or longer, he was too ill to work with the accommodations suggested in Dr. Diehl's testimony. At best defendant would have been able to work sporadically for a few days with substantial time off because of his additional illnesses that developed in late November. He did not have sick or other leave time available for treatment of his cancer and attention to his other medical conditions.

"[R]easonably regular, reliable, and predictable attendance is a necessary element of most jobs." Svarnas v. AT&T Communications, supra, 326 N.J. Super. at 78. "An employee who does not come to work cannot perform any of her job functions, essential or otherwise." Ibid. (quoting Tyndall v. Nat'l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994)).

In Raspa v. Office of the Sheriff of the County of Gloucester, 191 N.J. 323 (2007), the Supreme Court said that 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.'" Id. at 336-37 (quoting Jansen v. Food Circus Supermarkets, Inc., supra, 110 N.J. at 374). The evidence in this case that plaintiff could have returned to his job in early December 2003 "is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist." Ferdinand v. Agric. Ins. Co., supra, 22 N.J. at 493. Whether or not Domb had engaged in the interactive process to find a reasonable accommodation, plaintiff did not present sufficient evidence to prove that he was qualified to perform his job after he became ill. The trial judge correctly dismissed his complaint at the conclusion of his case in chief.

 
Affirmed.

Plaintiff has not made an argument, and we discount any suggestion, that receiving the termination letter in early November 2003 caused plaintiff's further disability. There was no evidence to support such speculation.

(continued)

(continued)

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A-4903-07T2

April 28, 2009