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DOCKET NO. A-4254-07T24254-07T2









Submitted December 1, 2009 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, No. L-3881-06.

Van Syoc Chartered, attorneys for appellant

(Sebastian B. Ionno, on the brief).

Richardson & Galella, attorneys for respondent

(Linda A. Galella, on the brief).


Plaintiff Michelle D. Marshall appeals from a trial court order granting defendants' motion for summary judgment and dismissing her complaint with prejudice. After reviewing the record in light of the contentions advanced on appeal, we reverse that order and remand this matter for further proceedings.

In December 2003, plaintiff was hired by defendant Township as a clerk in the office of the Township's Construction Official. Her direct supervisor was defendant Beth McCann, who served as Technical Assistant to the Construction Official.

In May 2004, plaintiff took pregnancy leave in connection with the birth of her child. Immediately after that birth, plaintiff began to experience shortness of breath, and she was diagnosed with congestive heart failure. She returned to work in or about the second week of July 2004. On August 18, 2004, while at work, plaintiff was stricken with severe chest pain and was rushed to the hospital by ambulance. McCann accompanied her to the hospital.

Plaintiff alleged that she expressed concern to McCann about whether her job would be in jeopardy because of her absence from work. She said that McCann repeatedly assured her that she should not worry about that but rather concentrate on getting better. Plaintiff alleged that she told McCann that her doctor wanted her to remain out of work at least through September 14, 2004 and inquired whether McCann wanted a note from her doctor to that effect. Plaintiff said that McCann assured her that she did not have to provide a doctor's note at that point.

Plaintiff also alleged that McCann told her on August 24, 2004, that she did not have to bring in a doctor's note immediately because she could first use her sick time and vacation time. Plaintiff further alleged that on August 27, 2004, she faxed a doctor's note to the Township, advising that plaintiff was to remain out of work until September 14, 2004. On that same day, August 27, plaintiff received two letters from the Township. The first letter advised her that she was being terminated for being out of work "beyond the allowable time given to an employee without some sort of doctor[']s note or written request from you, which is in violation of Township Personnel Policy." The letter was signed by defendant McCann.

The second letter was also signed by McCann. It stated that although plaintiff had faxed a doctor's note, "it was not received within the permitted 5 day period required. Due to the current workload and the fact it would create an extreme hardship within the department we cannot hold your position for that length of time." Plaintiff expressed her dismay to McCann, noting that she was left without health insurance for herself or her baby.

Defendants disputed portions of those factual allegations. In particular, defendants contended that they had made a number of efforts to contact plaintiff after August 18, and had been unsuccessful in reaching her. According to the record before us, the Township has yet to fill plaintiff's slot in the office.

In May 2006, plaintiff filed suit, alleging that her termination was unlawful, that the Township had not made an effort to accommodate her disability, and that her termination was a violation of the Law Against Discrimination ("LAD"). N.J.S.A. 10:5-1 to -49. In January 2008, defendants moved for summary judgment.

Defendants contended they were entitled to summary judgment for two reasons: plaintiff was not entitled to proceed because she could not establish she was able to return to work, and plaintiff, who was seeking a determination that she was permanently disabled, should not be permitted to allege defendants discriminated against her by not accommodating her heart disease. The trial court, after hearing oral argument, granted defendants' motion, finding that plaintiff was judicially estopped from alleging her termination was discriminatory because she was pursuing an administrative claim in which she was alleging that she was entitled to benefits as permanently disabled as a result of her heart condition. The trial court concluded plaintiff could not "have it both ways."

In support of its position, the trial court cited McNemar v. The Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996), cert. denied, 519 U.S. 1115, 117 S. Ct. 958, 136 L. Ed. 2d 845 (1997); August v. Offices Unlimited, Inc., 981 F.2d 576 (1st Cir. 1992); and Erit v. Judge, Inc., 961 F. Supp. 774 (D. N.J. 1997). In McNemar, supra, the plaintiff was terminated after his employer discovered he had removed a small amount of currency from the cash drawer and never accounted for it. 91 F.3d at 613-14. He filed suit, alleging that his termination was motivated by his employer's discovery that he was HIV-positive. Id. at 616. During the course of discovery, it was developed that the plaintiff had received New Jersey and Social Security benefits and an exemption from repaying a student loan on the basis of his being disabled. Id. at 615. The Court of Appeals affirmed the District Court's dismissal of the plaintiff's complaint, finding he was barred by the doctrine of judicial estoppel. Id. at 617-18.

The First Circuit reached a similar conclusion in August, supra, where the plaintiff was terminated from his position as an office furniture salesman as a result of his depression. 981 F.2d at 578-79. The court concluded, based upon his statements in disability applications, that he was not a qualified handicapped individual. Id. at 583-84.

In Erit, supra, the District Court held that the plaintiff was judicially estopped from seeking relief under the New Jersey LAD or the federal Americans with Disabilities Act because at the time he was discharged, he had filed applications for disability benefits in which he alleged he was disabled and unable to work. These cases, however, did not apply the law of judicial estoppel as it has been articulated in New Jersey.

[J]udicial estoppel is an extraordinary remedy which should be invoked only when a party's inconsistent behavior will otherwise result in a miscarriage of justice. Judicial estoppel is applied with caution to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement. . . . [J]udicial estoppel should be invoked only in those circumstances required to serve its stated purpose, which is to protect the integrity of the judicial process.

[Ali v. Rutgers, 166 N.J. 280, 288 (2000) (quotations omitted).]

An essential element of the doctrine of judicial estoppel in New Jersey is that the position alleged to be inconsistent in the present litigation was successfully advanced in the earlier litigation. Ramer v. N.J. Transit Bus Operations, Inc., 335 N.J. Super. 304, 312 (App. Div. 2000). "[A] threat to the integrity of the judicial system sufficient to invoke the judicial estoppel doctrine only arises when a party advocates a position contrary to a position it successfully asserted in the same or a prior proceeding." Id. at 311 (quotation omitted). "[T]he doctrine of judicial estoppel only applies when a court has accepted a party's position . . . ." Kimball Int'l, Inc. v. Northfield Metal Products, 334 N.J. Super. 596, 607 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001).

Here, at least as of the time defendants' motion was argued, plaintiff had not been successful in asserting a claim for permanent disability benefits. The doctrine of judicial estoppel was, therefore, inapplicable, and her statements on her applications as to the extent of her disability "do not threaten the integrity of the judicial process anymore [sic] or less than any other litigant who makes statements in court that are inconsistent with prior statements." Ramer, supra, 335 N.J Super. at 313.

Defendants also argue that they were entitled to summary judgment because plaintiff had not presented proof that she can perform the essential functions of her job. Defendants also presented this contention to the trial court but it did not address that argument and we decline to address it in the first instance.

The order under review is reversed, and the matter is remanded to the trial court for further proceedings.






April 26, 2010