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August 11, 2016


Argued February 22, 2016 Decided

Before Judges Messano, Simonelli and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3189-11.

Fred Shahrooz Scampato argued the cause for appellant (William A. Feldman, attorney and on the briefs).

Rebecca D. Winkelstein argued the cause for respondents (Jasinski, P.C., attorneys; David F. Jasinski, of counsel; Ms. Winkelstein and Jennifer C. Van Syckle, on the brief).


In this employment matter, plaintiff Matthew Cook alleged he was wrongfully terminated due to his disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and his employer failed to provide a reasonable accommodation and engage in the interactive process. Plaintiff appeals from the involuntary dismissal of his complaint with prejudice pursuant to Rule 4:37-2(b) following the completion of his evidence. For the following reasons, we reverse and remand for a new trial.1

We derive the following facts from the record. In 2002, plaintiff began his employment with defendant Gregory Press, Inc. (Gregory Press) as a five-color printing machine operator. Defendant Gregory Loessel (Gregory)2 was the company's owner, and defendant Jeffrey Losessel (Jeffrey) was plaintiff's direct supervisor. Plaintiff worked in a very loud environment and his job involved "[c]onstantly running back and forth, checking the paper, bending over, checking stuff, putting ink in the ink balance, setting the keys, just walking back and forth and looking, make sure everything is running correctly, there's no jam ups or nothing like that."

In the summer of 2011, plaintiff began experiencing facial numbness and tingling, neck pain, and tingling in his hands. On August 22, 2011, he consulted a neurologist, J. Erinna Monck, M.D. Concerned that plaintiff might have a demyelinating disease, such as Multiple Sclerosis (MS) or Lyme disease, Dr. Monck referred him for an MRI of the brain and spine. Prior to undergoing the MRI, plaintiff's home was damaged on August 28, 2011, due to Hurricane Irene. Plaintiff was out of work for almost a week as a result, making repairs to his home.

Plaintiff requested and was granted time off from work on September 9, 2011 to undergo the MRI. The MRI showed myelitis in an area of plaintiff's cervical spine. Dr. Monck referred plaintiff for a spinal tap to determine whether MS, Lyme disease, or a viral or post-viral syndrome was the cause of the myelitis.

Dr. Monck testified that a spinal tap is a test done to obtain spinal fluid that circulates around the brain and spinal cord.3 The spine and blood vessels are punctured with a needle and spinal fluid is extracted and sent to the laboratory for testing. Risks of the procedure includes post-lumbar puncture headaches, which are caused by a persistent slow leak of spinal fluid from an unclosed puncture site.

Plaintiff told Jeffrey about the spinal tap and requested and was granted time off to undergo the procedure. Plaintiff was at work prior to the procedure when Gregory approached him and said, "you know what, I've been talking to a lot of people about your situation and I don't think there's anything wrong with you. I think it's just stress from the flood[.]" Plaintiff responded, "even with the lesion on my spine?" Gregory replied, "yes." Plaintiff was "kind of taken back" by this and did not know what to say. He started working and Gregory walked away.

Plaintiff underwent the spinal tap on Friday, September 16, 2011. The procedure was not uneventful; plaintiff required two lumbar punctures at two different levels, and the procedure left him dizzy and with a headache. He stayed in bed all weekend suffering from dizziness and a migraine-like headache.

Plaintiff still had a bad headache, on Monday, September 19, 2011, but went to work. He testified

I started working. As time went by, my headache grew bigger and bigger over time and it came to a point, . . . if I turned like slightly, my head would just start pounding and pounding and it came to a point that I felt like I was going to throw up. I just kept on putting my head down on the press and just trying to deal with it and . . . by nine o'clock, I was like, I've got to go. I said [to Jeffrey] I can't take it no more. . . . [And Jeffrey] said, whatever.

Plaintiff went home, called Dr. Monck's office and reported he had a severe headache, and was prescribed Fioricet. He "crawled in bed" for the rest of the day.

The next day, Tuesday, September 20, 2011, plaintiff still had a headache and did not go to work. He called Dr. Monck's office and reported that the medication had helped with the nausea, but he still had a headache. Plaintiff was prescribed a steroid, Prednisone, to decrease the inflammation and treat the headache pain, and told not to return to work.

Dr. Monck testified that "[t]he first week after a spinal headache we recommend that people lie flat, drink a lot of fluid, caffeine, take medications with caffeine such as the one I prescribed, take the steroids . . . [which] can help to decrease inflammation and treat the pain." She explained that Prednisone can cause significant side effects, including anxiety, mood changes, and anger. Plaintiff testified that the steroids made him "feel very anxious, like shaken, very like kind of nervous, and just very uncomfortable."

That same day, Dr. Monck's office faxed a note to Gregory Press, which stated as follows

[Plaintiff] is currently under Dr. Monck's neurologic care. Due to an exacerbation in his neurologic condition and side effects of recent treatment, he is unable to attend work today. He will return to work based on his recovery later this week. Should you have any questions, you may contact my office. Thank you for your cooperation.

Dr. Monck testified that the purpose of the note "was to keep [plaintiff] out of work. I wanted him on bed rest, as you can see from the note[.]" She also testified that she received no inquiry from Gregory Press after sending the note.

Plaintiff spoke to Jeffrey on September 20, after the doctor sent the note. He told Jeffrey that the doctor said he should stay home and get bed rest. He also told Jeffrey that he was being placed on steroids, the headaches could last a week, he needed to be on bed rest, wanted to stay home and get well, and "[i]f this continues to be bad, I need to stay in bed rest. It could be very dangerous. . . . that's what I feel I need to do, stay home for the rest of the week[], so I can get well." (Emphasis added.) Jeffrey replied, "I need you back in by Wednesday." Plaintiff responded, "I'm not sure if I'm going to be well enough to come back on Wednesday because the bright lights and loud noises make my condition worse." Jeffrey then ordered plaintiff to "be back by Wednesday." Plaintiff understood this to mean he had no choice but to go to work.

Plaintiff was not ready to return to work on Wednesday, September 21, 2011. He was still on steroids, had a headache, and "wanted to stay in bed." However, feeling he had no choice, he went to work. He testified that "[t]he bright lights and loud noise was pretty intense. . . . It made me feel worse because if you turn too quick, your head is pounding. If you get noise, it's like constant." While working under these conditions, he made a production mistake that delayed a printing job and wasted paper. He attributed the mistake to his headache and the anxiety caused by the steroids. He went to work on Thursday, September 22, 2011. He still had a headache and just tried "to get through the day."

On Friday, September 23, 2011, plaintiff still had a bad headache, but went to work and "just [tried] to deal with it the best [he] could." Gregory approached him angry and yelled about the production mistake.4 Plaintiff felt frustrated that someone was yelling at him in his condition, and after Gregory continued yelling, plaintiff said, "enough . . . stop yelling at me." Plaintiff then took his headphones off, threw them in a garbage can, and walked away. Gregory followed plaintiff and continued yelling at him. Plaintiff turned around and told Gregory that he would pay for the wasted paper, "but you're not going to yell at me no more." Gregory replied, "you're talking back to me?" The two men then stared at each other and Gregory walked away. Plaintiff explained that he wanted Gregory to stop yelling at him "because when you have a headache, that's the last thing you want someone to do to you and being on steroids, you're just like, stop. I just don't want to . . . deal with this." He testified that a combination of the steroids and headache played a part in his confrontation with Gregory.

Plaintiff went outside and called his wife. After approximately ten minutes, he returned inside to finish working. Shortly thereafter, Jeffrey approached him and said, "you put me in a bad position. . . . [Y]ou're fired. Here's you check." Plaintiff left and went home. He called Dr. Monck's office and said he was "on steroids and it is making him angry. He got in a fight at work today and got fired." On September 26, 2011, plaintiff told Dr. Monck that he "was ordered by [his] boss to come back into work when he had a doctor's note not to. . . . He made a mistake and was fired by his boss."

Plaintiff was ultimately diagnosed with central nervous system Lyme disease and referred to an infectious disease specialist for treatment.5 He received intravenous therapy for twenty-seven days. Dr. Monck testified that Lyme disease is a serious condition, and the combination of Lyme disease and the postoperative effects of a spinal tap and steroid treatment would normally have an effect on a person's ability to deal with stressful work conditions.

Plaintiff filed a complaint, asserting claims under the LAD for wrongful termination in retaliation for his request for a reasonable accommodation for his disability, and failure to accommodate/failure to engage in the interactive process. Following the completion of plaintiff's evidence, defendants moved for involuntary dismissal pursuant to Rule 4:37-2(b). The trial judge found that plaintiff failed to prove he had "a physical condition or a mental or psychological condition that prevented the normal exercise of any bodily or mental function." The judge found that although there was evidence plaintiff should have stayed in bed with his headache, there was no evidence the headache was such that it prevented him from doing his job, nor did plaintiff tell anyone it would prevent him from doing his job either mentally or physically.

The judge determined that assuming plaintiff had a disability, there was "absolutely no evidence . . . that he was fired because of the disability, that is, because he had a headache[;]" rather plaintiff was terminated because of "his attitude" when confronted by Gregory. Addressing plaintiff's failure to accommodate claim, the judge found as follows

[plaintiff] certainly could have stayed home and he made the choice not to stay home. That was his choice and he can't blame someone else for the choice he made by not relying on the [LAD] and staying home but, instead, going to work. And once he got to work, to say that he can blame his employer because he made a mistake at work is unsound.

The judge also found it was not defendants' sole responsibility to initiate the interactive process and stated, "to say that [the interactive process] applies for somebody who merely said they have a headache and they would rather stay home strikes me as unsound to say the least." The judge granted the motion and dismissed the complaint with prejudice. This appeal followed.

Our review of a motion pursuant to Rule 4:37-2(b) is de novo, applying the same standard as the trial court. Hitesman v. Bridgeway, Inc., 218 N.J. 8, 25-26 (2014). "A motion for an involuntary dismissal is premised on 'the ground that upon the facts and . . . the law the plaintiff has shown no right to relief.' . . . The motion 'shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.'" Ibid. (quoting R. 4:37-2(b)). "[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied." Id. at 26 (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)).

To the extent that the trial court's grant of a motion for an involuntary dismissal was premised upon a construction of the LAD, our review is de novo. See ibid. (citing Twp. of Holmdel v. N.J. Highway Auth., 190 N.J. 74, 86 (2007)). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Applying the above standards, we conclude that dismissal was improper.

The LAD prohibits an employer from discriminating on the basis of disability or perceived disability "unless the nature and extent of the disability reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1; see also Victor v. State, 203 N.J. 383, 410 (2009). The "purpose of the LAD is to secure to [disabled] individuals full and equal access to society, bounded only by the actual physical limits that they cannot surmount[.]" Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 398 (App. Div. 2002) (citation omitted).

The plaintiff must present a prima facie case of discrimination. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973). "There is no single prima facie case that applies to all employment discrimination claims. Instead, the elements of the prima facie case vary depending upon the particular cause of action." Victor, supra, 203 N.J. at 408.

To prove a prima facie case of disability discrimination for failure to accommodate, the plaintiff must demonstrate that he had a disability; was otherwise qualified to perform the essential functions of the job, with or without the accommodations by the employer; and suffered an adverse employment action because of his disability. Id. at 411. Therefore, the threshold inquiry in a disability discrimination case "is whether the plaintiff in question fits the statutory definition of [disabled]." Viscik v. Fowler Equip. Co., Inc., 173 N.J. 1, 15 (2002). "[T]he second prong of the prima facie case would entail proof of either the failure to accommodate or the failure to engage in the interactive process, but it would not extinguish the requirement that plaintiff demonstrate an adverse employment consequence." Victor, supra, 203 N.J. at 411-12.

"Under the LAD, an employer must reasonably accommodate an employee's disability and the related limitations of an employee, 'unless the employer can demonstrate that the accommodation would impose and undue hardship on the operation of its business.'" Hennessey v. Winslow Twp., 368 N.J. Super. 443, 452 (App. Div. 2004) (quoting Tynan, supra, 351 N.J. Super. at 397), aff d, 183 N.J. 593 (2005); see also N.J.A.C. 13:13-2.5(b). We have held that

[a]though an employer must consider reasonably accommodating an employee with a disability, that duty extends only so far as necessary to allow a disabled employee to perform the essential functions of his job. An employer need not attempt accommodation if it reasonably determines that an employee because of handicap cannot presently perform the job even with an accommodation.

[Ibid. (quoting Tynan, supra, 351 N.J. Super. at 397).]

Examples of reasonable accommodation include time off from work. See N.J.A.C. 13:13-2.5(b)(1)(ii).

It is the employer's duty to initiate an informal interactive process to determine what appropriate accommodation is necessary. Tynan, supra, 351 N.J. Super. at 400. "This process must identify the potential reasonable accommodations that could be adopted to overcome the employee's precise limitations resulting from the disability. Once a [disabled] employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation." Ibid. (citations omitted). During the process, "both employer and employee bear responsibility for communicating with one another to identify the precise limitations resulting from the disability and potential reasonable accommodation that could overcome those limitations." Jones v. Aluminum Shapes, 339 N.J. Super. 412, 422 (App. Div. 2001) (citations omitted).

Proof of the employer's failure to engage in the interactive process alone is not sufficient to meet the employee's prima facie burden. Victor v. State, 401 N.J. Super. 596, 614 (2008), aff'd in part and modif. in part, 203 N.J. 383 (2010). The employee still bears the burden to prove the basic essential elements of a discrimination case, and must show that reasonable accommodation for his disability was possible even where the employer acted wrongfully in failing to engage in the interactive process to find such an accommodation. Ibid. As part of that burden, the employee must prove that he was qualified to perform the job and that "the accommodation could have been reasonably achieved." Id. at 615; see also Potente v. Cty. of Hudson, 187 N.J. 103, 110-11 (2006). The employee is not required during his employment to state what specific accommodation he is seeking or offer specific reasonable accommodations. Tynan, supra, 351 N.J. Super. at 399. We have held that

[t]o show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: (1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for her 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 (citations omitted).]

Once the plaintiff establishes a prima facie case of discrimination, the defendant would then have to state a legitimate reason for the adverse employment action. McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 678. Under the "burden-shifting" or "pretext" analysis, the burden would then shift back to plaintiff to prove that the stated reason was merely a pretext for discrimination. Id. at 804, 93 S. Ct. at 1825, 36 L. Ed. 2d at 679. However, burden-shifting need not be applied when the issue is handicap discrimination based on a failure to accommodate. Seiden v. Marina Assocs., 315 N.J. Super. 451, 455 (App. Div. 1998).

Because plaintiff's complaint was dismissed at the close of his evidence, we must determine whether, accepting as true all the evidence which supported his position and according him the benefit of all inferences which could reasonably and legitimately be deduced therefrom, reasonable minds could not differ as to whether he established he had a disability and that defendants failed to accommodate his disability or engage in the interactive process. Our first inquiry is whether plaintiff established he had a disability. The LAD defines "disability" as

physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or any mental, psychological or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Disability shall also mean AIDS or HIV infection.

[N.J.S.A. 10:5-5(q) (emphasis added).]

The definition of disability under the LAD is broader than its federal counterpart, the Americans with Disability Act (ADA), 42 U.S.C.A. 12102 to 12213, and must be liberally construed. Tynan, supra, 351 N.J. Super. at 397-98 (citing Andersen v. Exxon Co., 89 N.J. 483, 495 (1982)). In contrast to the ADA, the LAD definition of disability "does not incorporate the requirement that the alleged [] condition result in substantial limitation of a major life activity." Ibid.; see also 42 U.S.C.A. 12102(1)(A). Similarly, the LAD does not require that the condition be serious or permanent. Viscik, supra, 173 N.J. at 16. "Rather, [the LAD] prohibits discrimination against those suffering from any disability." Enriquez v. W. Jersey Health Sys., 342 N.J. Super. 501, 517 (App. Div.) (emphasis added), certif. denied, 170 N.J. 211 (2001).

Our courts have found a variety of medical conditions to be disabilities under the LAD, including obesity, Viscik, supra, 173 N.J. at 17; alcoholism, Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595 (1988); epilepsy, Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 383 (1988); spinal and back ailment, Andersen, supra, 89 N.J. at 494; gender dysphoria, Enriquez, supra, 342 N.J. Super. at 520; Attention Deficit Disorder, Domurat v. Ciba Specialty Chems. Corp., 353 N.J. Super. 74, 89 (App. Div.), certif. denied, 175 N.J. 77 (2002); asthma and bodily injuries sustained in a motor vehicle accident, Svarnas v. AT&T Commc'ns, 326 N.J. Super. 59, 71 (App. Div. 1999); and drug addiction, In re Cahill, 245 N.J. Super. 397, 400 (App. Div. 1991). Based on these examples, we conclude that Lyme disease, a serious condition, qualifies as a disability under the LAD. The question then is whether plaintiff established he had Lyme disease.

"[A] LAD disability claim, in which the plaintiff's disability is not readily apparent, must be supported by 'expert medical evidence,' also characterized as 'objective medical testimony.'" Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 576 (2016) (quoting Viscik, supra, 173 N.J. at 16). The testimony of a treating physician who has not been designated as an expert witness is sufficient to establish the existence of a disability. Id. at 580. The testimony is admissible provided that the proponent gives notice of the testimony to the adverse party, responds to discovery requests in accordance with the Court Rules, and the testimony satisfies N.J.R.E. 701 and other applicable Rule of Evidence. Ibid. These factors were obviously met here because Dr. Monck testified without objection.

Dr. Monck's testimony established that plaintiff had physical symptoms of, and actually had, Lyme disease while employed by Gregory Press. Because of his physical symptoms, plaintiff had to undergo medical testing that caused severe headaches and required steroid treatment, both of which affected his ability to work. Accordingly, we conclude that plaintiff established he had a disability, and turn our inquiry to whether, accepting plaintiff's evidence as true, it could be inferred defendants knew of his disability, he requested a reasonable accommodation, he could have been reasonably accommodated, and defendants failed to make a good faith effort to provide a reasonable accommodation.

We are satisfied that the evidence was sufficient to overcome a Rule 4:37-2(b) motion. Plaintiff requested and was granted time off for the MRI and spinal tap. Plaintiff told Jeffrey about the spinal tap, and Gregory approached plaintiff prior to the procedure and, despite knowing of the lesion on plaintiff's spine, expressed his doubt there was anything wrong with plaintiff. Plaintiff returned to work on Monday with a severe headache, told Jeffrey about it, and Jeffrey permitted him to leave early. The next day, defendants received Dr. Monck's note advising plaintiff was under her care and had an exacerbation in his neurologic condition, side effects of the spinal tap, and could not return to work until later that week "based on his recovery." Plaintiff advised Jeffrey he was on steroids, the headaches could last a week, and asked for the rest of the week off. Jeffrey ordered plaintiff back to work without further investigation or inquiry. Believing he had no choice, plaintiff returned to work the rest of the week, still suffering a headache and the effects of the steroids, which attributed to the production mistake. We conclude a jury could reasonably infer from this evidence that defendants knew of plaintiff's disability, plaintiff requested a reasonable accommodation, plaintiff could have been reasonably accommodated, and defendants failed to make a good faith effort to provide a reasonable accommodation.

Reversed and remanded for a new trial.

1 Plaintiff also asserted a claim of harassment/hostile work environment, which was also dismissed with prejudice. Plaintiff does not challenge that dismissal on appeal. Accordingly, the re-trial shall only concern plaintiff's wrongful termination and failure to accommodate/failure to engage in the interactive process claims.

2 We use defendants' first names for ease of reference.

3 Dr. Monck testified via videotape.

4 The confrontation between plaintiff and Gregory was captured on surveillance video, which was played to the jury.

5 Defendants cancelled plaintiff's health insurance without notifying him or affording him the opportunity to obtain coverage under COBRA. Plaintiff discovered that his health insurance had been cancelled when he went for medical treatment.