JOHN O'BRIEN v. STAR GAS PROPANE, L.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0358-05T30358-05T3

JOHN O'BRIEN,

Plaintiff-Appellant,

v.

STAR GAS PROPANE, L.P.,

Defendant-Respondent.

 
 

Submitted May 24, 2006 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No. L-680-03.

Anthony Rizzo, attorney for appellant.

Sills Cummis Epstein & Gross, attorneys for

respondent (Steven Post and Steven M. Fleischer,

of counsel and on the brief).

PER CURIAM

Plaintiff John O'Brien appeals from an order of summary judgment dismissing his complaint against his former employer, defendant Star Gas Propane, L.P. We affirm in part and reverse and remand in part.

I

Plaintiff was born in 1949 and completed ninth grade. He began employment with defendant in 1976, delivering propane gas to commercial and residential customers. Plaintiff worked in Maple Shade, and reported to Deborah Grungo, his manager; Bruce Tripp, the regional manager, supervised the facility. Plaintiff's employment with defendant was terminated by Tripp on January 28, 2002.

PLAINTIFF'S MEDICAL CONDITION

In March 2001, Dr. Steven Peikin, head of the Division of Gastroenterology and Liver Diseases at the University of Medicine and Dentistry of New Jersey (UMDNJ), wrote to plaintiff's primary doctor, Michael Renzi, that, in addition to kidney stones and reflux, plaintiff had hepatitis C.

In November 2001, Dr. Peikin told Dr. Renzi that plaintiff's liver biopsy showed "moderate to severe chronic active hepatitis," and that he was starting a six-month treatment of PEG-Intron every week, plus Ribavirin daily.

On January 30, 2002 (two days after plaintiff's termination), Peikin wrote "to whom it may concern" that plaintiff had "a medical condition that requires medication that could interfere with his ability to perform his job. The side effects of the medication can be flu-like illness with various aches and pains among other problems."

On February 19, 2002 (three days before plaintiff signed the release to be discussed hereafter), Dr. Peikin informed Dr. Renzi that plaintiff was "tolerating the medications satisfactorily," and that "[h]is only side effects are headache, joint pain, minimal depression, mood swings and shortness of breath."

In December 2002 (the month before plaintiff filed his complaint), Peikin wrote "to whom it may concern" that plaintiff had been taking medication for over a year to treat a liver ailment. "This medication is fairly toxic and is associated with multiple side effects including, but not limited to, changes in mental status, mood, depression, etc. In fact, during the course of therapy, Mr. O'Brien experienced significant side effects."

PLAINTIFF'S FAILURE TO TAKE EMERGENCY CALLS

According to plaintiff, he told Grungo, in the summer of 2001, before he started treatment, that he would be taking injections and pills for his medical condition. He discussed his medications with Grungo several times. After he started his treatment, he told Grungo once or twice "how sick I got," which was so sick that "[m]y mother-in-law and my wife had to carry me." Plaintiff explained that his weekly injections with Interferon, on Friday night, were "actually putting a virus in your body." Plaintiff recalled that Grungo "knew I was sick from the medication. She knew I was under treatment. I lost 25, 30 pounds. Everybody knew I was sick."

Plaintiff requested "not to do call to work nighttime." He explained that call work is "standby duty for emergency," delivering fuel to customers who run out and repairing gas leaks and other malfunctions. Night call was rotated among the drivers, so that each one would be on duty for one week every eight or nine weeks.

According to Tripp, the drivers were "responsible to find somebody to cover for them" and worked out the call schedule among themselves, as per their request. Plaintiff stated that the drivers were allowed to exchange their night assignments, and plaintiff asked two or three co-workers to cover for him because he was ill, but they declined. Plaintiff did not ask anyone else because he knew that they would not help him; because of his medications, plaintiff had become irritable and did not get along well with people toward the end of his employment with defendant, even though he had served as shop steward on and off over the years.

As a result of his inability to get coverage, plaintiff then asked Grungo for help, to "get someone [to] take my call." Plaintiff said: "When my turn came up, I told her I was too ill to take the call. . . . I was too tired. I was afraid I couldn't do the work." Plaintiff informed Grungo once or twice that he was too sick to make his night calls.

Plaintiff explained that he was tired during the day also, but his doctor told him "to try to function as normal as you can because this is a long process. This may take a year. So I tried to function as much as I [could]." Plaintiff's doctor did not suggest time off from work. Plaintiff was working his normal forty hours per week during the day; he wanted to work and "tried like hell to be there." Plaintiff did not provide a doctor's note that he was unable to take night calls because "I just didn't think of it. I thought someone would help me out. We always helped each other out before."

Plaintiff also did not believe that he needed to file a grievance, because company procedure was to inform his manager when he was unable to complete an assignment, "and the manager is supposed to handle it." Plaintiff said: "That's her job. That is why she has got the title manager."

According to plaintiff, "It is not a big deal that you didn't go out on call. You have people there that didn't go out on call before and nothing ever happened to them, they didn't get fired."

Grungo, in a written "summary of events," which she compiled, said that plaintiff received seventeen after-hours calls from December 31, 2001, through January 3, 2002, and responded to six. According to Grungo, plaintiff told the answering service on December 31, January 2, January 3 and January 5 that he would not respond to calls, and to telephone Grungo at home.

PRE-TERMINATION EVENTS

In January 2002, prior to his discharge, plaintiff met with Tripp, Grungo and Ernie Clements, the business agent of plaintiff's union (Teamsters Local 676). Plaintiff was unaware of the purpose of this meeting; he "just got told that there is going to be a meeting." Plaintiff was not alarmed about having a meeting, because he often attended meetings about various work matters, including on-going collective bargaining. At the meeting, plaintiff explained "what happened" regarding his call duty, and "thought we resolved it."

Plaintiff initially claimed that his failure to inform Tripp about his decision to ignore the emergency calls due to his illness followed from an assumption that Tripp knew that information because plaintiff had told Grungo. Plaintiff later asserted that he told Tripp that he was "unable to work too much and not feeling well." Tripp denied that plaintiff's illness was discussed at this meeting.

In this meeting, plaintiff raised safety issues about transporting tanks. Plaintiff relayed to Tripp his recollection that the president of the company had informed him a few years before that company policy was to obey safety rules, and that if anyone did not, whether it was a manager or a worker, that person would be discharged. Plaintiff expressed concern about the danger of a tank falling off a truck, which could be fatal.

According to plaintiff, the meeting "got a little heated;" Tripp "got loud with me and I got loud with him and I lost it." Plaintiff left the room, talked to Clements, returned, and apologized for losing his temper; "we all shook hands and that ended the meeting."

Apparently, according to plaintiff, he had another, later meeting with Tripp and Clements about defendant's "acquiring Modern Gas and closing the Tuckahoe plant." Plaintiff voiced an objection to the loss of jobs that would result from a plant closing.

Plaintiff related that he had lunch with Tripp after this meeting, and that Tripp offered him a position in residential sales. Plaintiff told Tripp that he was interested, but that he wanted to wait until the possible plant closing was settled. According to plaintiff, there was no discussion of his failure to respond to emergency calls at this lunch, and "[t]he next time I met with Bruce, he fired me."

PRIOR SAFETY VIOLATIONS

Concerning the safety issues, plaintiff explained that there had been improper transport of tanks "a couple times" a few months before; plaintiff complained to Grungo, who responded, "yes, John, we know." Plaintiff also reported the violation to his union, but it was "in the process of trusteeship." The federal government was "taking over" the union hall and plaintiff "couldn't get any results."

Plaintiff noted that he had made several complaints about safety over the years; some of his managers were receptive, and some of the issues were resolved, and some were not. His last manager, Grungo, was not receptive, resulting in more safety violations in plaintiff's last few years with defendant. For example, the company was not supposed to, but did, deliver gas to new accounts before a service person checked for leaks and ensured that propane, not natural gas, was needed.

Plaintiff also recalled raising several safety issues with Tripp, to no avail. For example, trucks should have been grounded when forklift tanks were filled; because they were not, a fire started. Further, employees should have tested the tanks periodically and they should have emptied partially-filled tanks before returning to the plant. Plaintiff explained that these protocols had been ignored on several occasions. Tripp responded, "okay, John. Like I was a thorn in his side, like I was a pain in the ass."

PLAINTIFF'S TERMINATION

By letter dated January 28, 2002, Tripp informed Clements that "the Company is exercising its right, pursuant to Article 10, Section 2 of the collective bargaining agreement . . . to discharge John O'Brien without warning, effective 1/29/02, based on John's failure or refusal to carry out his work assignments. . . ." Article 10, Section 2 of the agreement provided for discharge without "warning notice" if the employee fails or refuses to carry out work assignments.

Tripp related that plaintiff refused to respond to calls on January 2 and 3, 2002, and that he had informed the answering service and Grungo that he would not respond to calls. Tripp concluded that this was a failure or refusal to carry out work assignments, which justified discharge without warning.

Plaintiff claimed that other drivers failed to respond to night calls "all the time" without being terminated. For example, several years before, Mike Phelps did not take a call and was suspended for two weeks. As plaintiff explained, missing calls was "a normal occurrence because we had problems with answering service."

PLAINTIFF'S GRIEVANCE AND THE POST-TERMINATION MEETING

The day after he was terminated, plaintiff met with Clements and attempted to tell Clements what had occurred; unfortunately, Clements appeared to be busy and uninterested. Nevertheless, plaintiff did file three grievances with Clements at this point. According to plaintiff, John Jackson, his union president, and other union officers were suspended (Jackson was accused of theft of union funds), and plaintiff was unable to obtain any cooperation or aid from his union.

About a month after plaintiff's termination, he met with Tripp, Grungo and Jackson (Jackson was no longer suspended). Plaintiff recalled that Jackson was so busy with union matters "when he came back off of suspension" that plaintiff did not have an opportunity to talk to him until five minutes before the meeting; at that point, plaintiff told Jackson that he had hepatitis C and was sick.

At the meeting, Jackson asked Tripp whether he knew that plaintiff had hepatitis C, to which Tripp replied that he did not. According to Tripp, this was the first time that plaintiff informed management of his illness. Tripp recalled that Grungo was surprised to hear of plaintiff's condition.

Jackson then asked Tripp to talk outside. According to Tripp, when they met outside, Jackson asked him to allow plaintiff to retire. Tripp acknowledged that "there may well be a question that he might not survive . . . and we should do what we could for him."

When Tripp and Jackson returned, Jackson told plaintiff that defendant would cover his medical insurance and pension until the end of May. (Plaintiff was apparently eligible for retirement at that time.)

THE RELEASE

On February 22, 2002, plaintiff and Jackson signed an "Agreement and General Release" to fully and finally resolve plaintiff's grievance, and Tripp signed it a few days later. Defendant agreed to make continued contributions to the Teamsters Health and Welfare Pension Funds on behalf of plaintiff through May 31, 2002, "as a final and complete settlement of any and all claims of Employee and the Union."

The agreement provided in part:

Employee and the Union fully, finally and unconditionally waive, and forever release, discharge and forgive, the Releasees from any and all claims, allegations, complaints, proceedings, charges, actions, causes of action, demands, debt, covenants, contracts, liabilities or damages of any nature whatsoever, whether now known or claimed, to whomever made, which Employee or the Union had, have or may have against any or all of the Releasees up to the present time, arising out of or in connection with, directly or indirectly, Employee's employment with the Company and/or the termination thereof, including, but not limited to, any claim pursuant to or arising under any federal, state or local legislation concerning employment or employment discrimination. . . .

The agreement specified that this included, "without limitation," claims arising under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. 621 to 634, the Americans with Disabilities Act (ADA), 42 U.S.C.A. 12101 to 12213, the Family Medical Leave Act (FMLA), 29 U.S.C.A. 2601 to 2654, the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, and other acts that are not in issue.

The agreement also stated that "[e]mployee specifically acknowledges that he understands that by accepting the payment set forth in paragraph 2, he is forever waiving his right to bring a suit, action or complaint against the Company." Plaintiff was at the union hall for about fifteen minutes when he signed the agreement. He could "hardly remember signing it," because, "between the medication and what was going on, I was out of it." Plaintiff could not concentrate or comprehend anything that day. He did not read the agreement before he signed it; he "breezed through it" and did not understand it.

When he signed the release, no representative of defendant asked him whether: (1) he understood the rights that he was surrendering, (2) he was taking any medication that might affect his "ability to think through the implications of signing the release," or (3) he was aware that, if he did not sign it, he was entitled to a hearing on his grievance and the purchase of health insurance under COBRA.

Plaintiff said that he signed the agreement under duress, because "[i]f I didn't sign it, I didn't have medical." Plaintiff said:

I was a beat man at that point. . . . I lost everything. I lost my job. I was sick. My bills wasn't [sic] being paid and I was in the process of losing my medical insurance to continue my treatment, unless I signed that agreement. . . . They beat me.

PLAINTIFF'S PSYCHIATRIST'S REPORT

Dr. Edward Tobe, a psychiatrist, evaluated plaintiff in July 2004, reviewed his medical records, and reported to plaintiff's attorney. Tobe related plaintiff's description of his symptoms: "[I]t was hell. I felt like I was hit by a bus, like a major flu." Plaintiff experienced "insomnia, hypersomnia, hot or cold, 'tired, worn out, very emotional,' periodic crying. He was afraid of dying."

Tobe described plaintiff as unsophisticated, with a ninth grade education, and genuinely frightened by his diagnosis. Tobe confirmed that plaintiff signed the settlement agreement without reading it as a means of retaining his medical benefits so that he could continue treatment. His wife described plaintiff as "totally overwhelmed"; she corroborated his severe flu-like symptoms and that she shared his fear of losing their health benefits, as well as potentially losing their home.

According to Tobe, plaintiff had a "significant worry that, if he could not continue his treatment, he would experience end-stage cirrhosis; thus, his willingness to sign anything to keep his benefits." Additionally, plaintiff perceived himself as boxed-in and his only hope was to hold onto his benefits and survive. Fear was the basis of his signing forms." Tobe explained that plaintiff's medications for hepatitis C "have well-known significant side effects that are well-documented in the literature, including mental side effects." According to Tobe this, together with "the trauma of his circumstances would cause any reasonable person to become overwhelmed and unable to make a competent decision" about legal matters. Tobe concluded that, with a reasonable degree of medical certainty, plaintiff did not enter into the settlement agreement knowledgeably and voluntarily.

The Present Suit

Plaintiff filed his initial complaint in January 2003 and an amended complaint in February 2003, alleging that he was incapable of voluntary and knowing consent to the release that he signed, because of the effect of his medications, the absence of prior notification that he would be required to release his claims, his lack of awareness of the rights that he was purportedly releasing, and the absence of an opportunity to consult an attorney.

Plaintiff complained that defendant violated: (1) the FMLA by failing to notify him that he was entitled to leave; (2) the Conscientious Employee's Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, by terminating him in retaliation for protesting safety violations; (3) the ADEA and the NJLAD, by discharging him because of his age; and (4) the ADA and the NJLAD by failing to provide him reasonable accommodation for his disability and by terminating him because of his disability. Plaintiff demanded damages, counsel fees, costs and reinstatement. Defendant answered the amended complaint in September 2003, denying its material allegations.

On August 5, 2005, defendant's motion for summary judgment was granted. On the same date, an order was entered dismissing the entire amended complaint.

II

On this appeal, plaintiff presents the following arguments:

POINT ONE

THERE WAS SUFFICIENT EVIDENCE FOR A REASONABLE TRIER OF FACT TO CONCLUDE THAT DEFENDANT FIRED PLAINTIFF IN RETALIATION FOR PLAINTIFF'S COMPLAINTS ABOUT SAFETY VIOLATIONS AND DEFENDANT'S IMPENDING UNETHICAL CONDUCT.

POINT TWO

THE AGREEMENT AND GENERAL RELEASE SHOULD BE INVALIDATED BECAUSE IT WAS PREPARED BY DEFENDANT'S OUT-OF-STATE LAWYER, IT INADEQUATELY ADVISED PLAINTIFF OF THE RIGHTS HE WAS SURRENDERING, AND IT WAS GIVEN TO HIM WHILE HE WAS ILL AND UNDER THE EFFECT OF MEDICATION WHICH PREVENTED A KNOWING AND VOLUNTARY WAIVER OF HIS RIGHTS.

POINT THREE

PLAINTIFF WAS AN ELIGIBLE EMPLOYEE UNDER THE FEDERAL FAMILY AND MEDICAL LEAVE ACT.

POINT FOUR

DEFENDANT WAS OBLIGATED TO ADVISE PLAINTIFF OF HIS RIGHT TO INTERMITTENT MEDICAL LEAVE UNDER THE FEDERAL STATUTE EVEN IF HE DID NOT REQUEST A LEAVE OF ABSENCE UNDER THE COLLECTIVE BARGAINING AGREEMENT.

POINT FIVE

DEFENDANT'S PREFERENTIAL TREATMENT OF A SUBSTANTIALLY YOUNGER EMPLOYEE WHO HAD THE SAME JOB AS PLAINTIFF SHOULD HAVE WITHSTOOD A MOTION FOR SUMMARY JUDGMENT ON A CLAIM OF AGE DISCRIMINATION.

POINT SIX

PLAINTIFF PROVIDED DEFENDANT WITH SUFFICIENT INFORMATION TO PLACE DEFENDANT ON NOTICE THAT HE NEEDED A REASONABLE ACCOMMODATION TO DEAL WITH HIS CALL DUTIES.

We reject plaintiff's argument as to his FMLA (Points Three and Four) and age discrimination (Point Five) claims. However, we remand for further consideration of plaintiff's contention that he did not knowingly and voluntarily sign the release (Point Two). If plaintiff succeeds in setting aside the release, his CEPA (Point One) and reasonable accommodation claims (Point Six) otherwise survive summary judgment.

III

Plaintiff contends that the effects of his medication, together with "emotional strain," rendered him unable to knowingly and voluntarily enter into the settlement, as set forth in Tobe's report. Defendant argues that Tobe's report is inadmissible because it is hearsay and a net opinion, and that Tobe improperly relied on plaintiff's fear to conclude that plaintiff was under duress. Defendant contends that plaintiff was capable of making a knowing and voluntary waiver.

The judge rejected Tobe's opinion, noting that it was "two and a half years later" (apparently meaning later than the time when plaintiff signed the release). The judge said that "there's nothing in the record to show that [plaintiff] was not of sound mind and could not make a decision as to what to do about the release."

Summary judgment is appropriate if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In assessing whether summary judgment is appropriate where an expert opinion is involved, the motion judge may properly determine that the opinion amounts to a "net opinion" without holding an in limine hearing on admissibility. Kemp v. State, 174 N.J. 412, 426-29 (2000). A "net opinion," which constitutes "an expert's bare conclusions, unsupported by factual evidence, is inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

Here, Tobe's report reiterated what plaintiff (and his wife) relayed to Tobe, although it described plaintiff's symptoms, state of mind and circumstances in a more articulate and technical manner. However, Tobe's report was not based on any facts, and his conclusion did not invoke any psychiatric expertise.

Tobe said that plaintiff's medications had significant, well-known and documented side effects, but he did not say what they were, or whether plaintiff suffered from any of them. Tobe described plaintiff's symptoms, but failed to say what caused them or whether they affected plaintiff's ability to enter into a knowing and voluntary release. Instead, Tobe reached a general conclusion that plaintiff's medications, together with the "emotional pressures he was experiencing at the time of the settlement agreement," impacted his ability to consent to the agreement knowingly and voluntarily. Tobe's report provided no more information than plaintiff provided in his deposition, and it was properly disregarded by the judge.

Without Tobe's report, plaintiff had no competent medical evidence to support his claim of mental incapacity. Plaintiff's treating gastroenterologist, Peikin, said that plaintiff's medication caused flu-like symptoms and could interfere with his ability to perform his job, that plaintiff was tolerating his medications satisfactorily, and that plaintiff's medications were "fairly toxic" and caused significant side effects in plaintiff. Peikin did not say that plaintiff's medications rendered him incapable of entering into an agreement.

In Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112 F.3d 9, 13 (1st Cir. 1997), affirming a summary judgment in favor of the defendants, the court required "competent medical evidence going to his capacity to execute the release" in order to find that plaintiff lacked this capacity. The court held that having a psychiatric disability, without any further proof, was insufficient. Ibid. Similarly in Morais v. Cent. Beverage Corp. Union Employees' Supplemental Ret. Plan, 167 F.3d 709, 714-15 (1st Cir. 1999), also affirming a summary judgment in favor of the defendants, the court held that a doctor's note listing "diagnoses and medications, without any description of his symptoms or possible side-effects from the medication," was not competent medical evidence of the plaintiff's capacity to sign a release.

Here, Peikin has listed symptoms and side effects (headache, joint pain, depression, mood swings, shortness of breath) but did not say that they impacted plaintiff's capacity to knowingly and voluntarily enter into a contract. As in Rivera-Flores and Morais, plaintiff is without any medical evidence that he was incapacitated.

Plaintiff contends that the judge erred in refusing to invalidate the release because the document went beyond the scope of the parties' discussions; plaintiff was not represented by counsel, and he had no opportunity to seek counsel. Plaintiff also contends that the release did not cover his CEPA claim, and that it was invalid because it was not prepared by an attorney admitted to practice in New Jersey.

Defendant counters that the circumstances support the validity of the release: As a shop steward, plaintiff had relevant business experience and was aware of his rights; the language of the release was clear; plaintiff was represented by his union president; plaintiff was alert when he signed the release, and he received consideration for signing it.

The judge held that the release was valid because it was negotiated and, in the judge's opinion, plaintiff "got a pretty good deal."

The validity of the release depends on which claim is in issue. The release of plaintiff's FMLA claim was invalid. "Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA." 29 CFR 825.220 (2005). The court upheld this regulation as "a permissible construction of the FMLA," in Taylor v. Progress Energy, Inc., 415 F.3d 364, 368 (4th Cir. 2005). But see Faris v. Williams WPC-I, Inc., 332 F.3d 316, 321 (5th Cir. 2003) (29 C.F.R. 825.220 (2006) prohibits only prospective waivers of substantive rights, not settlements of claims already made).

However, the ADEA does not preclude an employee's voluntary waiver of an age discrimination claim, provided that the waiver was knowing and willful. Coventry v. U.S. Steel Corp., 856 F.2d 514, 521-22 (3d Cir. 1988). The court explained that in order to make this determination, in light of the public policy of eradicating discrimination in employment, it is appropriate to review "the totality of the circumstances, considerate of the particular individual who has executed the release." Id. at 523. The court set forth the following factors to consider:

"(1) the plaintiff's education and business experience, (2) the amount of the time the plaintiff had possession of or access to the agreement before signing it, (3) the role of the plaintiff in deciding the terms of the agreement, (4) the clarity of the agreement, (5) whether the plaintiff was represented by or consulted with an attorney, and (6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law."

[Ibid. (quoting EEOC v. Am. Express Publ'g Corp., 681 F. Supp. 216, 219 (S.D.N.Y. 1988).]

We adopted this standard in Swarts v. Sherwin-Williams Co., 244 N.J. Super. 170 (App. Div. 1990), adding, as factors to consider, "(1) whether an employer encourages or discourages an employee to consult an attorney and (2) whether the employee had a fair opportunity to do so." Id. at 177. The court also considered whether the employee was aware of the rights that he was waiving. Id. at 178; see also Daniel P. O'Gorman, A State of Disarray: The "Knowing and Voluntary" Standard for Releasing Claims Under Title VII of the Civil Rights Act of 1964, 8 U. Pa. J. Lab. & Emp. L. 73 (2005) (concluding that there should be no uniform, federal common law rule, and that state law should control).

In 1990, Congress enacted the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C.A. 621 to 634, which establishes minimum standards to consider in determining whether a waiver of rights under the ADEA is knowing and voluntary. 29 U.S.C.A. 626(f)(1). This standard applies only to a waiver of rights under the ADEA; the totality-of-the-circumstances test, set forth in Coventry and Swarts, applies to plaintiff's waivers of his other claims (except for his FMLA claim). Keelan v. Bell Commc'ns Research, 289 N.J. Super. 531, 544 (App. Div. 1996) (declining to apply the OWBPA test to a CEPA claim).

Plaintiff states a claim under the ADEA in his amended complaint, but in his brief argues for a reversal of the summary judgment in favor of defendant on his age discrimination claim, without specifying whether he is alleging a violation of the ADEA or the NJLAD, or both. As a result, we address: (1) each of the factors constituting the totality of the circumstances, set forth in Coventry and Swarts, to determine whether summary judgment was appropriate on the validity of plaintiff's release of all of his claims except his FMLA claim and ADEA claim; (2) the standard set forth in the OWBPA, to determine whether summary judgment was appropriate on the validity of plaintiff's release of his ADEA claim; (3) whether the release included plaintiff's CEPA claim, although it did not specifically include CEPA; and (4) whether the release was invalid because it was prepared by an out-of-state attorney.

A. THE TOTALITY OF THE CIRCUMSTANCES

1. PLAINTIFF'S EDUCATION AND EXPERIENCE

Defendant argues that plaintiff had "sufficient relevant business experience" because he was a "Union shop steward for many years," attended meetings and engaged in collective bargaining, including discussions about closing plants, made complaints about complex safety issues, filed an application for disability benefits two weeks before he signed the release, and filed a complaint with the EEOC seven months after he signed the release.

However, according to a "Vocational-Economic Loss Report" for plaintiff, he had a ninth grade education, a fifth grade reading level and seventh grade arithmetic skills. A review of plaintiff's deposition testimony corroborates a lack of education and sophistication.

In Riddell v. Med. Inter-Ins. Exch., 18 F. Supp. 2d 468 (D.N.J. 1998), the employee claimed violations of the FMLA and the NJLAD. The plaintiff had signed a release and claimed not to have understood its terms. Id. at 470. The court balanced the employee's lack of a college degree against her work experience and concluded that this factor "does not weigh greatly in favor of one party or the other." Id. at 472.

Here, plaintiff's lack of education and sophistication outweigh the experience that defendant advances. Including a rank-and-file worker in discussions and negotiations does not establish that the worker was knowledgeable and sophisticated. Completing a form disability application does not require much acumen, and plaintiff's EEOC complaint reveals a lack of expertise. It alleged only a failure to provide reasonable accommodation of plaintiff's disability, and the EEOC dismissed it three months later for a failure of proof.

Plaintiff's education and experience present a fact issue as to whether the release was knowing and voluntary.

2. TIME BEFORE SIGNING

Plaintiff said that he was at the union hall for approximately fifteen minutes when he signed the release.

In Riddell, the employee claimed that she had only five minutes to review the document, but the employer claimed that she "could have taken the document home but never asked." Ibid. Here also, defendant claims that there is no evidence that plaintiff was under a deadline to sign, or that he was denied an opportunity to deliberate.

The court in Riddell concluded that the employee did not have sufficient time to decide whether to sign the release, and that the employer should have told the employee that she was permitted time to make an informed decision. Id. at 472-73. Compare Keelan, supra, 289 N.J. Super. at 546-47 (seven days to review entire release, although plaintiff had only first page for forty-five days, was insufficient), with Swarts, supra, 244 N.J. Super. at 178-79 (holding agreement for eight days before signing it allowed plaintiff fair opportunity to consult attorney and was sufficient).

Here, as in Riddell, the short time that plaintiff had to review the release and decide whether to sign it -- even though he failed to ask for more time -- indicates a genuine fact issue as to whether the release was knowing and voluntary.

3. OPPORTUNITY TO NEGOTIATE

Plaintiff asserts that the release "went well beyond the scope of what had been discussed at the meeting held to negotiate a resolution of plaintiff's grievance." Plaintiff felt that he had no choice but to sign when the agreement and release were presented to him, and forego further negotiation, because he needed medical insurance in order to continue treatment for his life-threatening condition.

In Keelan, supra, 289 N.J. Super. at 548, we rejected plaintiff's argument that he was under duress due to "severe financial difficulty," holding that "economic pressure alone is not enough to constitute duress rendering an otherwise valid release void." In Swarts, supra, 244 N.J. Super. at 179, we rejected the employee's contention "that defendant placed him in a 'sign or starve' position," because there was no factual support for this contention.

Defendant also cites Melanson v. Browning-Ferris Indus., Inc., 281 F.3d 272 (1st Cir. 2002), in which the plaintiff sought to invalidate a release of a sexual harassment claim; she was later laid off and received a severance benefit in exchange for signing the release. The court held that, in view of the totality of the circumstances, the release was voluntary and knowing, rejecting the plaintiff's claim that "incapacity or duress, without more, [could] be inferred from merely the emotional and financial stress associated with loss of a job." Id. at 277.

In Melanson, unlike here, the plaintiff had a high school education and took college courses; the language of the release was within the comprehension of a lay person; the plaintiff had two months to review it and she was really looking for a higher amount of severance pay. The court concluded that the plaintiff's actual issue did not relate to her inability to understand the language in the release, but rather amounted to a complaint that the paucity of financial compensation provided as consideration for the release should have allowed her to break the agreement. Ibid.

On the other hand, in Coventry, supra, 856 F.2d at 524, the employee was presented with a choice between a lay-off, with loss of income and health benefits, or early retirement with a pension and benefits, but which also required a waiver. The court considered this a "Hobson's choice," a "'take it or leave it' predicament" that did not result from negotiation, and thus "supports a finding that his decision was not knowingly and willfully made." Ibid.

Here, plaintiff's "Hobson's choice" was considerably more severe than economic pressure or even a loss of medical benefits for a healthy person; as Tripp acknowledged, plaintiff "might not survive" without the treatment that his medical benefits enabled him to obtain. As plaintiff points out, a release was not part of the negotiation that resulted in the settlement.

Plaintiff has raised a fact issue whether his release was knowing and voluntary, because, although the other terms of the settlement were negotiated, the release portion of it was not, and plaintiff's severe medical condition left him without a meaningful choice to reject it.

4. CLARITY OF THE LANGUAGE

Contrary to defendant's contention, the language of the release was technical and cumbersome. Its sentences were overly long and difficult to understand. It is patently unreasonable to expect a delivery person to comprehend this complex provision without assistance, no less a person with a fifth grade reading level. The difficulty that an average person would face in attempting to read and understand this release creates a material fact issue whether plaintiff's release was knowing and voluntary.

The court in Keelan, supra, 289 N.J. Super. at 545, said that the failure of the release under consideration to specify that it covered CEPA claims raised a material fact issue whether the waiver was knowing and voluntary. See also Riddell, supra, 18 F. Supp. 2d at 472 ("The absence in the Release of any reference to specific claims that are being waived . . . diminishes its clarity.").

Here also, the absence of CEPA from the list of statutory claims covered by the release made it more difficult for plaintiff to understand. This factor as well presents a fact issue bearing upon the knowing and voluntary nature of plaintiff's decision.

5. REPRESENTATION BY COUNSEL

It is undisputed that plaintiff was not represented by counsel, and that defendant neither encouraged nor discouraged him from obtaining legal representation. Instead, union officials represented plaintiff, but they were allegedly ineffective, apparently because of the suspension of the union president and other officers. While defendant notes that plaintiff did not pursue his union for violating its duty to represent him, the union's dereliction of its duty is not a defense available to defendant under the law.

Defendant further contends that, because plaintiff was represented by a union, defendant was prohibited from dealing directly with plaintiff and doing so would have constituted an unfair labor practice under the National Labor Relations Act, 29 U.S.C.A. 158(a)(5). However, 29 U.S.C.A. 158(a)(5) provides that it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees" (emphasis added). Encouraging an employee to seek the advice of counsel before signing a release, and ensuring that the employee understands the rights that he is waiving and is competent to waive them, does not constitute a refusal to engage in collective bargaining, or even a refusal to bargain with union representatives about the settlement of a grievance.

In Mosley v. Bay Ship Mgmt., Inc., 174 F. Supp. 2d 192, 198 (D.N.J. 2000), the court discounted the employee's lack of opportunity to consult counsel, noting that he had the assistance of union representatives. In Mosley, however, there was no evidence that the assistance of the union representatives was ineffective, and it was clear that the employee was aware of the right that he was waiving. Id. at 197-98.

Other courts have emphasized the significance of encouraging an employee to seek legal counsel before signing a release. In Coventry, supra, 856 F.2d at 525, the absence of assistance of counsel led the court to doubt that plaintiff had a "meaningful comprehension" of the rights that he was waiving. Similarly in Riddell, supra, 18 F. Supp. 2d at 473, the court concluded that the employer's failure to encourage the employee to seek counsel "weighs considerably in favor of finding that the Release is invalid."

Here also, plaintiff has raised a material fact issue whether his release was knowing and voluntary because he was not represented by counsel, and because defendant did not inform him of his right to counsel or encourage him to obtain counsel.

6. PLAINTIFF'S AWARENESS OF HIS RIGHTS

Plaintiff stated that he tried to read the release, but that he was unable to concentrate or understand it. Defendant asserts that plaintiff was aware of his right to protection against discrimination. Defendant bases this assertion on plaintiff's admission that he filed three grievances, including one for "[d]iscrimination for being falsely fired." We disagree.

The record, which does not include the grievance or grievances filed, does not reveal what plaintiff meant by this phrase. In his deposition, plaintiff's vocabulary was limited and he did not exhibit an understanding of his legal rights. As we have previously noted, plaintiff testified that Clements "threw two of them (plaintiff's grievances) in the trash and I left."

In Swarts, supra, 244 N.J. Super. at 178, we considered the plaintiff to be aware of his rights because he had previously complained about age discrimination in a letter to the personnel department. The court reasoned that the plaintiff's "misguided subjective belief" that "he did not intend to waive his age discrimination rights when he signed the release" did not establish a genuine fact issue, such that the plaintiff could defeat summary judgment. Ibid. Similarly in Mosley, supra, 174 F. Supp. 2d at 197-98, on which defendant relies, the plaintiff was aware of his discrimination rights because he signed the release in exchange for withdrawing his grievance alleging race discrimination.

Here, in contrast, there is no indication in the record that plaintiff was aware of which rights he was waiving when he signed the release. To the contrary, he admitted to reading the release, but not to understanding it. In Coventry, supra, 856 F.2d at 525, the court instructed that: "A meaningful comprehension of the legal significance of a release of ADEA claims, as well as the ability to understand the literal definitions of its terms, is necessary to a 'knowing' waiver." See Riddell, supra, 18 F. Supp. 2d at 473 (plaintiff's claim that she did not realize that she was protected by discrimination laws was uncontradicted).

Plaintiff has raised a fact issue as to whether he was aware of the rights that he was waiving when he signed the release.

7. CONSIDERATION

There is no question that, as the judge found, plaintiff received consideration for the release: Defendant contributed a specified amount to the Teamsters Health and Welfare Pension Funds of Philadelphia and Vicinity through May 31, 2002, which was the amount due in connection with plaintiff's employment. Defendant would not have made these payments but for plaintiff deciding to sign the agreement and release. Further, defendant had no obligation to do so, pending the resolution of plaintiff's grievance.

B. THE OWBPA

29 U.S.C.A. 626(f)(1) provides in pertinent part:

An individual may not waive any right or claim under this Act [the ADEA] unless the waiver is knowing and voluntary. . . . [A] waiver may not be considered knowing and voluntary unless at a minimum--

(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;

(B) the waiver specifically refers to rights or claims arising under this Act;

(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;

(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;

(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;

(F) (i) the individual is given a period of at least 21 days within which to consider the agreement;

. . . .

(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired . . . .

In addition, "the party asserting the validity of a waiver shall have the burden of proving . . . that a waiver was knowing and voluntary." 29 U.S.C.A. 626(f)(6).

Defendant has not shown that plaintiff's waiver of his ADEA rights was knowing and voluntary under these standards. Although some of these criteria are fulfilled, several are not. The waiver was not written in a manner calculated to be understood by plaintiff or the average fuel delivery and repair person. It did not advise plaintiff to consult an attorney before signing it. Plaintiff was not given twenty-one days to consider it, although he might have procured that time if he asked for it. The agreement did not have a seven-day revocation period.

We conclude that plaintiff's waiver was not voluntary and knowing under 29 U.S.C.A. 626(f)(1), and thus was not a valid release of his rights under the ADEA.

C. WHETHER THE RELEASE COVERED PLAINTIFF'S CEPA CLAIM

Plaintiff contends that the failure of the release to specify that it covered CEPA, when it listed other statutes that it covered, indicates that it did not apply to CEPA. However, the release that plaintiff signed said that it included specified statutes "without limitation." It covered "any and all claims . . . of any nature," including claims arising under state legislation concerning employment.

This court, in Keelan, supra, 289 N.J. Super. at 545, concluded that "employers are not absolutely obliged to mention a specific statute in order to validly bar claims under that statute." In Taylor, supra, 415 F.3d at 367, the Fourth Circuit held that a release that mentioned other statutes but not the FMLA nevertheless covered the FMLA under a "catchall category" of other federal laws.

The release here also intended to cover every possible claim. Thus, it included CEPA claims under the category of claims arising under state legislation concerning employment.

D. PREPARATION OF THE RELEASE BY AN OUT-OF-STATE ATTORNEY

There was no evidence that an out-of-state attorney prepared the agreement and release. Tripp mentioned discussing it with "an outside law firm," but did not specify outside of what. However, defendant admits that a New York attorney prepared the agreement and release.

Plaintiff cites In re Jackman, 165 N.J. 580, 581 (2000), a case in which the Court addressed the character and fitness of an applicant for admission to the New Jersey bar who had engaged in the unauthorized practice of law. The Court stressed that transactional law, like litigation, is subject to the New Jersey licensure requirement, id. at 586-87, but did not address whether the numerous acquisitions and mergers that the applicant had handled as a senior associate in a large firm for seven years could be voided because he was not admitted to practice.

Plaintiff cites no other authority in support of his contention that preparation by an unlicensed attorney renders a contract void, and we have found none. Plaintiff's argument that the contract should be voided for this reason is without merit.

CONCLUSION

The release that plaintiff signed was invalid to waive his FMLA claim, under 29 C.F.R. 825.220 (2006), and his ADEA claim, under 29 U.S.C.A. 626(f). Plaintiff has raised a genuine fact issue whether he signed the release knowingly and voluntarily, and thus whether it was valid to waive his other claims. If the release was knowing and voluntary, it covered plaintiff's CEPA claim.

IV

Plaintiff contends that the judge erred in determining that defendant did not have the number of employees required by the FMLA for plaintiff to qualify as an eligible employee. Plaintiff argues that defendant and its affiliate, Petro Holdings, Inc., were an integrated employer, such that Petro's employees should count as defendant's employees for the calculation. Plaintiff further argues that defendant's failure to inform plaintiff about his entitlement to medical leave violated the FMLA. Defendant counters that its operation was not integrated with Petro's because they did not share management, operations or labor relations.

The motion judge determined that plaintiff was not an eligible employee under the FMLA because defendant did not have enough employees to qualify for coverage, as required by 29 U.S.C.A. 2611(2)(B)(ii). The judge agreed with defendant's submission that Petro's employees should not be counted because defendant and Petro did not share management, control over labor relations, employees, ownership, financial control or headquarters.

Under 29 U.S.C.A. 2611(2)(B)(ii), "eligible employee" does not include "any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50."

29 C.F.R. 825.104(c) (2006) provides that: "Normally the legal entity which employs the employee is the employer under FMLA," but:

Separate entities will be deemed to be part of a single employer for purposes of FMLA if they meet the "integrated employer" test. . . . Factors considered in determining whether two or more entities are an integrated employer include:

(i) Common management;

(ii) Interrelation between operations;

(iii) Centralized control of labor relations; and

(iv) Degree of common ownership/financial control.

[29 C.F.R. 825.104(c)(2) (2006).]

No one factor is determinative, "but rather the entire relationship is to be reviewed in its totality." 29 C.F.R. 825.104(c)(2) (2006).

We agree with the judge that plaintiff has not raised a genuine fact issue as to whether defendant and Petro were an integrated employer such that their employee counts could be combined to determine coverage by the FMLA.

Tripp asserted that, during plaintiff's employment, defendant employed fewer than fifty employees in Maple Shade (where plaintiff worked) and "within a 75-mile radius of plaintiff's worksite." During plaintiff's employment, Star Gas Partners, LP, owned defendant and Petro, according to a statement filed with the SEC and Tripp's affidavit. However, according to defendant's answer to an interrogatory, Star Gas Partners, LP and defendant were partners. An underwriting agreement of January 2002 supports defendant's assertion that Star Gas Partners, LP and defendant were partners, and Petro was a subsidiary of Star Gas Partners, LP.

Defendant stipulated that "the number of employees of Petro at the Pennsauken and/or Camden facilities" in the fourth quarter of 2001 and the first quarter of 2002 "when added to the number of employees of defendant at the Maple Shade facility during that time, exceed the number of employees needed to qualify for coverage under the [FMLA]."

According to Tripp, "Petro was the only [Star Gas Partners] entity other than [defendant] which employed individuals within 75 miles of plaintiff's worksite in Maple Shade, N.J."

Nevertheless, Tripp asserted that defendant, which delivered propane gas to residential and commercial customers, and Petro, which delivered heating oil to residential and commercial customers, "were entirely separate entities with distinct management, operations and labor relations."

Tripp was not aware of any inter-management between the two companies. He never interacted with anyone from Petro. The human resources departments and policies of the two companies were separate. Petro was not a party to the collective bargaining agreement that governed plaintiff or any of defendant's employees. Defendant and Petro did not share or exchange facilities, employees, equipment, product or customers. They did not service each other's customers. They competed for customers but also gave discounts to each other's customers.

Tripp said that defendant's headquarters were in Kentucky, while Petro's headquarters were in Connecticut. Plaintiff said that defendant's headquarters were in Connecticut. Star Gas Partners, LP's 2001 annual reported stated that its "propane segment," apparently defendant, had its corporate headquarters in Stamford, Connecticut. Defendants' 1999 department directory listed its corporate office address in Stamford, Connecticut.

Plaintiff argues that defendant and Petro had a "close-knit financial relationship." Plaintiff asserts that Irik Sevin, the CEO of Star Gas LLC, another partner company connected to Star Gas Partners, LP, defendant and Petro, "and other high level company officials had at various times also held positions with other affiliated companies including Petro." Star Gas Partners, LLP's 2002 annual report showed that Sevin was a current director of Petro and past CEO of Petro. The statement also revealed that four other directors of Star Gas LLC were also directors of Petro. Joseph Cavanaugh, executive vice president of "the propane division," apparently defendant, was currently "a member of the Office of the President of Star Gas LLC" and previously "held various management and financial positions with Petro."

Plaintiff has shown a degree of common ownership and financial control relating defendant and Petro. However, plaintiff has not submitted any evidence about the operations of Star Gas LLC or its connection to defendant. The identity of some directors or upper managers of Petro and Star Gas LLC thus does not indicate common management between Petro and defendant. Similarly, the fact that defendant's current vice president, Cavanaugh, also serves as a manger of Star Gas LLC, and previously held management positions with Petro, does not link current management between Petro and defendant.

Tripp's uncontested statements in his affidavits showed that defendant and Petro did not share or cooperate in management, operations or labor relations. Plaintiff has not submitted any evidence about two of the factors that must be considered in determining whether defendant and Petro were an integrated employer: interrelation between operations, and centralized labor relations. 29 C.F.R. 825.104(c)(2) (2006).

The existence of one factor -- common ownership or financial control -- is not controlling. The relationship must be viewed in its entirety. 29 C.F.R. 825.104(c)(2) (2006).

Plaintiff also points to defendant's admission that it displayed posters at its Maple Shade facility describing the FMLA. Plaintiff contends that this constituted defendant's recognition that employees of affiliated companies should be included to determine coverage. Employers may provide more generous leave than required under the FMLA, 29 U.S.C.A. 2653, but the posting of a notice does not compel the conclusion that defendant and Petro were an integrated employer under 29 C.F.R. 825.104(c) (2006).

In conclusion, plaintiff failed to raise a fact issue about whether defendant and Petro were an integrated employer. The judge was correct that plaintiff was not an eligible employee under the FMLA because defendant did not have the required number of employees.

V

Plaintiff contends that the judge erred in dismissing his CEPA claim because he submitted sufficient evidence to enable a jury to find that he was discharged in retaliation for complaining about safety issues and protesting a possible plant closing.

Defendant counters that plaintiff failed to submit any evidence that his termination resulted from his safety complaints or that the reason defendant's articulated for terminating plaintiff was false.

Defendant objects to plaintiff's argument that his discharge was in retaliation for objecting to a plant closing, asserting that plaintiff raised this issue for the first time on appeal. Defendant also argues that objecting to a plant closing is not covered by CEPA. The record does not reveal whether plaintiff raised this issue below. Nevertheless, the evidence of plaintiff's complaints about safety violations is sufficient to preclude summary judgment on his CEPA claim. The judge did not address this issue.

CEPA prohibits an employer from retaliating against an employee because the employee "discloses . . . to a supervisor . . . an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law." N.J.S.A. 34:19-3(a).

As defendant points out, a plaintiff alleging a violation of CEPA must show that "there was a causal connection between the whistle-blowing and the adverse employment action." Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 359 (App. Div. 2002) (citing Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999)), appeal dismissed, 177 N.J. 217 (2003). A jury "may infer a causal connection based on the surrounding circumstances." Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000).

Here, the surrounding circumstances allow an inference of a causal connection. Plaintiff raised safety concerns throughout his twenty-six-year career with defendant; his last manager, Grungo, was not as receptive as prior managers, and there were more safety violations in the last few years. A few months before his termination, Grungo responded "yes, John, we know," to his safety complaints. Tripp also was not receptive to plaintiff's safety concerns, did not address them, and treated plaintiff like "a thorn in his side" or "a pain in the ass." Shortly before plaintiff's discharge, his objection to safety violations resulted in Tripp's and plaintiff's shouting at each other.

Moreover, as plaintiff points out, Tripp said, after the post-termination meeting, that Grungo was surprised to learn that plaintiff was ill. However, in an e-mail to Tripp six days before plaintiff's termination, Grungo mentioned that plaintiff was sick. Defendant points to plaintiff's admission that he did not mention his illness in the pre-termination meeting. However, plaintiff explained that he assumed that Tripp knew because plaintiff had told Grungo. Plaintiff later stated that he revealed his illness at this meeting.

Finally, we agree with plaintiff that a jury could infer retaliation from plaintiff's rejection of Tripp's offer of a sales position shortly before his discharge because a sales position would have removed plaintiff from "the arena" where safety was an issue.

Plaintiff submitted sufficient evidence to raise a genuine fact issue as to whether his discharge was in retaliation for complaining about safety violations. If the release is found to be invalid, this claim should be reinstated.

VI

Plaintiff contends that the judge erred in dismissing his age discrimination claim. Plaintiff points to another employee, Mike Phelps, who also failed to respond to emergency calls and was suspended, rather than terminated. Defendant argues that plaintiff failed to submit proof that plaintiff was discharged because of his age or that defendant's asserted reason for discharging him was pretextual.

The judge found "no proof of age discrimination in the matter at all." He noted that the EEOC "made no determination" on plaintiff's complaint.

The judge and defendant are incorrect that plaintiff must submit direct proof of age discrimination. In Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005), the Court explained that, because of "the difficulty of proving discriminatory intent, New Jersey has adopted the procedural burden-shifting methodology," which was initially articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under this methodology, the plaintiff must first establish a prima facie case of discrimination by showing that: "(1) he was in the protected group; (2) he was performing his job at a level that met his employer's legitimate expectations; (3) he nevertheless was fired; and (4) the employer sought someone else to perform the same work after he left." Zive, supra, 182 N.J. at 450. Establishing the prima facie case creates an inference of discrimination and shifts the burden of production "to the employer to articulate a legitimate, nondiscriminatory reason" for its action. Id. at 449.

The burden then shifts back to the plaintiff to show by a preponderance of the evidence that the employer's explanation was not the true reason for its decision, but rather was a pretext for discrimination. Ibid. To do this, the plaintiff must submit evidence from which a factfinder could either: (1) disbelieve the employer's articulated, legitimate reason; or (2) believe that discrimination was more likely than not a motivating or determinative cause of the employer's decision. Id. at 455-56. This same methodology is used for ADEA claims. Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000).

The NJLAD protects both older and younger workers. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 214 (1999). The ADEA, 29 U.S.C.A. 631(a), protects only workers over forty years old. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 584, 124 S. Ct. 1236, 1239, 157 L. Ed. 2d 1094, 1103 (2004). Plaintiff was fifty-two when he was terminated, and thus was a member of a protected class under both statutes.

However, plaintiff submitted no evidence that defendant sought another worker to perform plaintiff's job after he left, and thus did not establish the fourth prong of the prima facie case.

Plaintiff cited another employee, Phelps, who was forty-three years old, missed an after-hours call twelve years before, and was suspended for two weeks. Plaintiff argues that because he had a valid reason for missing calls -- his health problems -- and Phelps did not, defendant treated him more harshly than Phelps. This single, isolated incident, which occurred twelve years before, involved an infraction far less serious than plaintiff's and thus does not constitute evidence of age discrimination.

As defendant points out, plaintiff admitted that most of the workers in his position were his age or older, and that defendant did not treat him differently than the younger employees. Thus, plaintiff failed to state a prima facie case of age discrimination, and the judge properly dismissed this claim.

VII

Plaintiff's final contention is that the judge improperly dismissed his NJLAD claim that defendant failed to provide him with reasonable accommodation of his disability. Defendant counters that plaintiff's failure to alert defendant about his disability - and its attendant needed accommodations - relieved defendant of any duty that it had to accommodate plaintiff's disability. The judge did not address this issue.

The LAD prohibits discrimination in employment against the disabled, N.J.S.A. 10:5-4.1 and 12(a), which requires reasonable accommodation of an employee's disability. Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J. Super. 385, 396 (App. Div. 2002). So long as it would not impose an undue hardship on the employer, "part-time or modified work schedules" provides an example of reasonable accommodation. N.J.A.C. 13:13-2.5(b)(1)(ii).

As defendant points out, while "an employee must request an accommodation," if the employee clearly communicates that assistance is needed for a disability that employee need not use the term "reasonable accommodation" or cite a legal source. Tynan, supra, 351 N.J. Super. at 400. Then, the employer must "initiate an informal interactive process with the employee" to identify possible accommodations. Ibid. (citing 29 C.F.R. 1630.2(O)(3) (2006)).

Contrary to defendant's argument, plaintiff contends that he informed Grungo of his disability and requested the accommodation of a modified work schedule, relieving him of his night on-call duty. According to plaintiff, he informed Grungo several times that he could not respond to night emergency calls because of his medical treatment, and requested relief from this assignment. Plaintiff stated that he lost twenty-five or thirty pounds and that everyone at his work place, including Grungo, knew that he was sick.

Tripp asserted that plaintiff failed to disclose his illness at the pre-termination hearing. Plaintiff initially corroborated Tripp's story, claiming that he did not refer to the illness because he assumed that Grungo had informed Tripp about that matter. However, plaintiff later stated that, at the meeting, he did tell Tripp that he was ill and "unable to work too much."

Plaintiff has thus raised a fact issue as to whether he informed defendant of his need for accommodation. If his release is found invalid, this claim must be reinstated.

VIII

In summary, we affirm the dismissal of plaintiff's FMLA and age discrimination claims; we reverse the dismissal of the CEPA and reasonable accommodation claims. We remand for a trial to determine whether the release was signed knowingly and voluntarily; if it was not, the jury will determine the merits of the CEPA and reasonable accommodation claims.

Affirmed in part; reversed and remanded in part.

 

Obtaining approval for treatment caused the delay between diagnosis and treatment.

At his deposition, plaintiff testified that Clements immediately threw two of the grievances in the trash.

Plaintiff's wife worked but did not have benefits.

Plaintiff has apparently abandoned his ADA claim.

(continued)

(continued)

51

A-0358-05T3

July 20, 2006