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November 23, 2016


Submitted November 7, 2016 Decided

Before Judges Nugent, Haas and Currier.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5832-13.

Castronovo & McKinney, LLC, attorneys for appellant (Thomas A. McKinney and Megan Frese Porio, of counsel and on the briefs).

Methfessel & Werbel, attorneys for appellant (Eric L. Harrison, of counsel and on the brief; Elizabeth C. Connelly, on the brief).


Plaintiff Robert Benning appeals from the Law Division's June 18, 2015 order granting summary judgment and dismissing his claim for disability discrimination in violation of the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, against defendant Middlesex Regional Education Services Commission. Plaintiff also challenges the trial court's September 15, 2015 order denying his motion for reconsideration. We reverse and remand for trial.


We derive the following material facts from the evidence submitted by the parties on defendant's summary judgment motion, viewed in a light most favorable to plaintiff, the non-moving party. Polzo v. Cty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

The parties agree that plaintiff is disabled due to a cognitive impairment he sustained in 1984 during an episode of cardiac arrest. This disability makes it difficult for plaintiff to assimilate new information, and he has trouble with his short-term memory.

In September 2006, defendant hired plaintiff on a year-to-year basis as a teacher's aide, but he soon began working in defendant's schools as a custodian. During the period between 2006 and December 2009, defendant provided plaintiff with six written performance evaluations assessing his work as a custodian. In each of these evaluations, defendant uniformly received almost all "good" and "satisfactory" ratings. Defendant's Supervisor of Buildings and Grounds ("supervisor") signed each of these evaluations.

In September 2009, defendant transferred plaintiff to a new school, The Center for Life Long Learning ("CLL"). In December 2009, the supervisor wrote in plaintiff's evaluation that plaintiff was a "steady consistent worker" with "a positive demeanor[,]" who "will always volunteer to help administration."

Sometime in 2010, another CLL custodian began to harass plaintiff. In an attempt to address this harassment, plaintiff asserts that prior to receiving his next performance evaluation in November 2010, he told his supervisor for the first time that he was disabled. In his deposition testimony, the supervisor stated that he did not know plaintiff was disabled until after he issued the November 2010 evaluation.

In that evaluation, the supervisor stated that plaintiff "[n]eed[ed] improvement" in six categories, which represented a dramatic falloff in plaintiff's performance from previous evaluations. On his own, plaintiff contacted the New Jersey Division of Vocational Rehabilitation ("DVR"), which assigned a job coach to observe his work efforts and to help him develop strategies for performing his custodial duties in a satisfactory manner. The job coach spoke to plaintiff's supervisor, who told her that plaintiff's performance was acceptable, but that he was having a problem with his co-workers. In her deposition, the job coach testified that based on her observation of the interaction between the supervisor and plaintiff at the school, the supervisor "wasn't . . . overly helpful" to plaintiff.

In a March 2011 evaluation, the supervisor found that plaintiff now needed improvement in twelve areas. The supervisor recommended that defendant terminate plaintiff. However, the job coach testified that plaintiff performed well over the months she worked with him. Despite the supervisor's recommendation, defendant rehired plaintiff for the 2011-2012 school year.

At the start of the school year, the job coach reported that plaintiff was "doing a good job at getting his tasks done." However, in September 2011, the supervisor again rated plaintiff's performance poorly in twelve categories. Although the job coach continued to state that plaintiff's overall performance was acceptable, the supervisor gave him another sub-par evaluation in March 2012.

In June 2012, defendant transferred plaintiff to the Academy Learning Center ("ALC") which, unlike the CLL, was a school where there were only two custodians, one for the day shift and one for the evening. Defendant asserted plaintiff requested the transfer to the ALC, while plaintiff testified he did not seek this transfer because it would be more difficult for him to handle an entire shift by himself. The DVR assigned a new job coach to assist plaintiff at his new school. This job coach testified that her predecessor's notes indicated plaintiff's supervisor told her in February 2011 that plaintiff could not be transferred to a two-man school because the supervisor could not "expect [plaintiff] to be responsible for a whole school."

The custodian who worked the night shift testified at his deposition that the ALC principal was not "happy" with plaintiff and told the custodian that he would "find a way to get rid of" plaintiff. This custodian also stated that about a week after plaintiff started at the school, the supervisor referred to plaintiff as "fucking crazy," a "fucking nut job," and "a pain in my ass." The custodian also claimed that the supervisor made fun of plaintiff by doing a "whole imitation of" him behind his back. The custodian testified that plaintiff "consistently did everything he was supposed to do every day" and did a "good job cleaning the building[.]"

Plaintiff's job coach testified that the ALC principal appeared more interested in documenting any incident where plaintiff may have missed completing a task than in assisting him. The job coach observed the principal following plaintiff around the school and watching him on the security cameras. The principal did not monitor other employees in this fashion.

In their depositions, the supervisor and the principal disputed the accounts provided by plaintiff's witnesses. They testified that, although they held numerous meetings with plaintiff and his job coaches in an attempt to help plaintiff, he continued to perform poorly. Plaintiff did not complete all of his work in a timely manner, forgot to undertake other tasks, and was generally unable to do his job in a consistently satisfactory manner. The principal and the supervisor stated that their main concern was ensuring that the physical environment in the school was safe. They denied treating plaintiff differently from other custodians.

Defendant's witnesses painted the night-shift custodian as a disgruntled employee who was later terminated. Defendant's attorney also pointed out discrepancies between this custodian's testimony and a certification he prepared. In addition, defendant noted that the job coaches had identified deficiencies in plaintiff's work through the years, in spite of their overall view that his performance was good.

In December 2012, the supervisor and the ALC principal rated plaintiff's work "unacceptable" in three categories, and stated that he needed improvement in another ten areas. They gave plaintiff an even worse evaluation in March 2013, when they found his work to be unacceptable in seven categories. The principal and supervisor recommended to defendant that it terminate plaintiff's employment. After reviewing the supervisor's report, plaintiff's job coach stated that it was contrary to her observations. The coach testified that plaintiff's job performance was improving throughout the latest rating period.

At the conclusion of the school year, defendant did not rehire plaintiff. In September 2013, plaintiff filed a one-count complaint against defendant, alleging that it discriminated against him on the basis of his disability in violation of the LAD. Defendant answered and discovery ensued. Defendant then moved for summary judgment.

Following oral argument, the trial judge issued a written opinion, granting defendant's motion and dismissing plaintiff's complaint. The judge found that plaintiff met his burden of establishing a prima facie case that he was disabled and experienced an adverse employment action allegedly because of his disability. The judge then found that defendant articulated a legitimate, non-discriminatory reason for the employment action, namely, that plaintiff's job performance was unsatisfactory.

Finally, the judge concluded that plaintiff failed to show that defendant's stated reason for terminating him was not the true reason for the decision, but rather was merely a pretext for discrimination. Despite the deposition testimony of plaintiff, the two job coaches, and the night-shift custodian, the judge found there were no genuine issues of material fact on the issue of pretext and that nothing in the record demonstrated that plaintiff "was singled out, harassed, mistreated, or discriminated against due to his disability."

The judge noted that defendant carefully documented its assessments of plaintiff's job performance over a two-year period, met with him frequently, and provided accommodations, such as the job coaches, in an attempt to address the areas where he was under-performing. The judge acknowledged, but discounted, the testimony of plaintiff's witnesses, finding that their statements that plaintiff was doing a good job were "merely opinions of [p]laintiff's performance as a custodian." The judge subsequently denied plaintiff's motion for reconsideration, and this appeal followed.


On appeal, plaintiff argues that there were genuine issues of material fact precluding summary judgment. We agree.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

When determining whether there is a genuine issue of material fact, the court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. While the trial court's legal conclusions are owed no deference, Nicholas, supra, 213 N.J. at 478, this court should affirm the judgment if it finds that the trial court's conclusions of law were correct. Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010).

On the other hand, summary judgment should be denied when determination of material disputed facts depends primarily on credibility evaluations. Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 131-32 (App. Div. 2011) (citing Parks v. Rogers, 176 N.J. 491, 502 (2003)). It is not the court's function to "weigh the evidence and determine the outcome" based on contested factual evidence presented by the parties. Gilhooley v. Cnty. of Union, 164 N.J. 533, 545 (2000). Instead, it is the jury's function to decide all genuine issues of material fact in dispute between the parties. Parks, supra, 176 N.J. at 502. Thus, a judge may "decide that a party should prevail as a matter of law" only when "the evidence is utterly one-sided[.]" Gilhooley, 164 N.J. at 545. Applying these standards, we conclude there were serious disputes as to the material facts on the issue of pretext and, therefore, the trial judge mistakenly granted defendant's motion for summary judgment.

The LAD prohibits discriminatory employment practices. Viscik v. Fowler Equip. Co., Inc., 173 N.J.1, 13 (2002). To prove employment discrimination under the LAD, New Jersey courts have adopted the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973); Viscik, supra, 173 N.J. at 13-14. Under that analysis, the plaintiff must first present sufficient evidence to establish a prima facie case of unlawful discrimination. Dixon v. Rutgers, 110 N.J. 432, 442 (1988) (citing McDonnell Douglas Corp., supra, 411 U.S. at 807, 93 S. Ct. at 1826, 36 L. Ed. 2d at 680); Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 82-83 (1978)). The defendant then has the burden to present evidence establishing a legitimate, non-discriminatory reason for its employment action. Dixon, supra, 110 N.J. at 442 (citing Peper, supra, 77 N.J. at 83). If the defendant presents such evidence, the burden shifts back to plaintiff to prove that the defendant's proffered reasons are merely a pretext for unlawful discrimination. Ibid. (citing Peper, supra, 77 N.J. at 83).

We agree with the trial judge that plaintiff established a prima facie case under the first McDonnell Douglas prong. Plaintiff was cognitively impaired and, once he informed his supervisor of this fact, defendant evaluated his performance as deficient and ultimately terminated him. We are also satisfied, as was the trial judge, that defendant met its burden of demonstrating it had a legitimate, non-discriminatory reason for the adverse employment action under the second McDonnell Douglas prong. Defendant's witnesses testified that they terminated plaintiff only after working with him for over two years in an attempt to improve his poor work performance.

Where we part company with the trial judge in evaluating whether summary judgment was appropriate is on the proofs of pretext. Defendant claims it did not renew plaintiff's contract because he was unable to perform his required tasks. However, the deposition testimony of the supervisor and the ALC principal was sharply contested by the testimony of plaintiff's job coaches and the night-shift custodian. Like defendant's supervisory staff, these individuals had the opportunity to work with plaintiff and observe his performance first-hand. Yet, the trial judge accepted the views of defendant's witnesses that plaintiff's performance had become "unacceptable," while entirely discounting the contrary testimony of plaintiff's witnesses as "merely opinions."

The judge also incorrectly dismissed plaintiff's proofs concerning actual animus on the part of the supervisor and the ALC principal. The supervisor gave plaintiff satisfactory evaluations over the four-year period before plaintiff told the supervisor about his disability. Once plaintiff made that disclosure, his supervisor gave him increasingly worse evaluations, leading directly to his termination. The night-shift custodian also testified that the supervisor made vulgar remarks about plaintiff and mocked him behind his back. The job coach stated that the ALC principal followed plaintiff around the school and watched him on the security cameras, but did not similarly monitor the school's other employees.

If a jury believed plaintiff's witnesses instead of the supervisor and the principal, then it could readily conclude that defendant's proffered reasons for terminating plaintiff were a pretext for discrimination. Because it was not the trial judge's function on summary judgment to weigh the evidence and determine the truth of the parties' sharply conflicting factual claims, these disputed material facts should have been presented to a jury for resolution.

Therefore, we reverse the order granting summary judgment to defendant and remand this matter for trial.

Reversed and remanded for trial. We do not retain jurisdiction.

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