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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1411-17T3






                   Argued November 26, 2018 – Decided December 17, 2018

                   Before Judges Fasciale, Gooden Brown and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Morris County, Docket No. L-1786-15.

                   Noel C. Crowley argued the cause for appellant
                   (Crowley & Crowley, attorneys; Noel C. Crowley and
                   Michael C. Crowley, on the briefs).

                   Timothy D. Speedy argued the cause for respondent
                   (Jackson Lewis, PC, attorneys; Timothy D. Speedy, of
                   counsel and on the brief; Joseph C. Toris, on the brief).

      In this employment discrimination matter, plaintiff Robert J. Hahn appeals

from an October 5, 2017 order granting summary judgment to defendant One

Call Care Management (One Call), dismissing his complaint. We affirm.


      We confine our review to the motion record before the Law Division

judge, Ji v. Palmer,  333 N.J. Super. 451, 463-64 (App. Div. 2000), extending to

plaintiff all favorable inferences. Angland v. Mountain Creek Resort, Inc.,  213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co. of Am.,  142 N.J.
 520, 523 (1995)). Defendant is a private entity that electronically manages and

processes workers' compensation claims. Plaintiff, an employee of defendant

since June 2001, alleged he was terminated from his position as a sales data

management coordinator based on his age and disability. At the time of his

termination, plaintiff was seventy-one years old and suffered from Crohn's


      Plaintiff initially was assigned to defendant's call center and then to its

finance department.     Sometime in 2007, Sandy Williams, plaintiff's then

   Plaintiff also refers to this disease as chronic colitis. We use both terms
interchangeably in our opinion. Plaintiff also suffers from diabetes and bipolar
disorder but his complaint does not set forth a cause of action pertaining to these
supervisor "permitted [p]laintiff to rest or take naps on his breaks." (Emphasis


      In August 2007, defendant terminated plaintiff when another employee

returned from military service. The parties settled plaintiff's ensuing wrongful

termination lawsuit (2007 lawsuit).      As part of that settlement, defendant

reinstated plaintiff in July 2008, and agreed not to terminate him for one year.

Other than that year, plaintiff's employment with defendant had always been at -

will. When he returned to work, plaintiff was assigned to defendant's data

management department, where he remained until his termination on May 26,

2015. At the time of plaintiff's termination, Susan Shearer was his manager and

Lourdes D'Amato-Cary was one of his supervisors.

      In August 2009, plaintiff was involved in an automobile accident. He did

not receive treatment for his injuries until the following year, requiring a three -

month absence from work, which was plaintiff's only extended medical leave

during his employment with defendant. Plaintiff was aware that, if he needed

an accommodation, he "was responsible for notifying human resources of the

need." Regarding his diabetes, prior to 2007, plaintiff requested and received

permission to eat "more frequent snacks" at his desk, and to advise Williams if

he needed to take a break for a meal. Plaintiff never advised defendant that he

needed an accommodation for his Crohn's disease.

      Prior to terminating plaintiff in 2015, defendant twice notified him that

other employees reported he was sleeping at work. The first meeting occurred

in September 2014 with Shearer and Sandy Epstein, defendant's senior human

resources executive. During that meeting, Shearer and Epstein told plaintiff that

if defendant could help him in any way, plaintiff should inform them. Plaintiff

indicated that his medication sometimes caused him to fall asleep. The record

does not reveal that he specified the underlying medical condition. Shearer and

Epstein told plaintiff "to make sure he did not look like he was sleeping a t his

desk in the future."

      Epstein memorialized the meeting in an undated memo, which stated that

"[m]ultiple employees" and managers were complaining about plaintiff's

sleeping at work, and that it had become a "morale issue with the other

employees." Although plaintiff received overall positive feedback in his 2014

annual performance review, he continued his habit of placing his head in his

hand or sitting motionless with his hand on his computer mouse for

approximately fifteen minutes at a time.

      On May 19, 2015, Sue Curley, defendant's director of government

relations and public affairs, received two complaints from plaintiff's co-workers

that he was sleeping at his desk. For example, Ryan Tamborini, a vice president,

reported that he observed plaintiff "slouched at his desk and not moving. It

became evidently clear that he ha[d] fallen asleep as his chin was to his chest,

and his hand was resting on the desk, but not touching the [computer] mouse."

Tamborini "also noticed that [plaintiff's] screen saver was on, which led [him]

to believe that [plaintiff] had been [situated] like [that] for at least a few

minutes." Shortly thereafter, Curley observed plaintiff and took a photo of him

from behind depicting his head down and his hand on the mouse. At that time,

however, the computer screen appeared to be active. 2

      Thereafter, Epstein memorialized plaintiff's ongoing sleep issue in an

email to other members of management:

            In September, 2014, [Shearer] and I discussed
            [plaintiff's sleeping issue] with [him]. [Shearer] let him
            know that this was unacceptable. He indicated that he
            was on medication for a medical condition which
            sometime[s] caused him to fall asleep. [Shearer] told
            him that while we understood this, she advised him that

   Plaintiff testified at his deposition that he doubted he was depicted in the
photograph. Nonetheless, because the photograph was taken from behind, the
trial judge aptly determined it did not demonstrate that plaintiff was asleep. We
agree, and also find that fact is not dispositive to our analysis.
            this can[not] continue. She advised that if he was found
            sleeping again, it would result in a warning.

            [Plaintiff]'s history with the company has been
            litigious. [Chief legal officer] Steve Davis is aware of
            his previous litigation which resulted in . . .
            [defendant's] reinstating him to a position here in
            Parsippany. I recommend that we gather any other
            information that Sue Curley has and have her or any
            witnesses provide information. We can then make a
            decision on what steps to take regarding his continued
            employment with the company.

      On May 25, 2015, defendant's management decided to terminate plaintiff

the following day. Mid-morning on May 26, 2015, plaintiff had a colitis attack

that caused him to soil his pants, respond home to change his clothes, and return

to work. Later that day, Curley observed plaintiff apparently asleep at his desk.

Shearer and Epstein then met with plaintiff and terminated him. Following a

prepared script, Shearer advised plaintiff, in pertinent part:

             [You] were caught sleeping at your desk again last
              week (Tuesday, May 19, 2015).
             You have been warned about this before.
             Therefore, we have no choice but to terminate your
              employment . . . effective immediately.

      Thereafter, defendant reassigned plaintiff's work responsibilities to

D'Amato-Cary. The record is devoid of any evidence that she received an

increase in salary for those responsibilities.      Nor does the record reflect

D'Amato-Cary's age or whether she suffered from any disabilities.

      During his deposition, plaintiff denied he ever fell asleep on the job,

claiming he "took [a] rest or a nap during [his] break."         When asked to

distinguish between resting and sleeping, plaintiff stated, "Well maybe it should

be described as dozing."      Nonetheless, plaintiff acknowledged there were

periods of time when seated at his desk, he would rest his head on his palm with

his eyes closed, and that it was "possible" that someone observing him could

perceive he was sleeping.

      Although plaintiff testified that he did not recall whether Shearer or

Epstein explained the ramifications of his sleeping on the job, he recalled that

they told him not to look like he was sleeping at his desk. Nonetheless, plaintiff

acknowledged defendant's rules of conduct, including offenses defendant

"consider[ed] to be serious enough to result in immediate discipline, including

termination for a single offense." Plaintiff further acknowledged that "sleeping

on the job" was listed fourth on that list of offenses.

      Following extensive oral argument and colloquy with counsel, the motion

judge concluded there was no material issue of fact that precluded summary

judgment. The judge elaborated:

             Plaintiff indicates that defendant was out to get him,
             [and his termination] was retaliatory because of his age
             and his disability. It [is] not supported by the facts at
             all. In fact, the contrary is true. When he was deposed,

            plaintiff indicated that he knew if he was sleeping he
            was going to be fired. He knew it meant his job.

      On appeal, plaintiff contends he presented a prima facie discrimination

action pursuant to New Jersey's Law Against Discrimination (LAD),  N.J.S.A.

10:5-1 to -49.   Plaintiff further claims defendant's assumption that he was

sleeping was not supported by reliable evidence, and was mere pretext. In

essence, plaintiff argues the motion judge misapplied summary judgment

standards because a jury reasonably could conclude defendant discriminated

against him due to his age and disabilities. We disagree.


      We review the grant of summary judgment de novo, applying the same

legal standard as the motion judge. Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh,  224 N.J. 189, 199 (2016). Therefore, we "review the

competent evidential materials submitted by the parties to identify whether there

are genuine issues of material fact and, if not, whether the moving party is

entitled to summary judgment as a matter of law." Bhagat v. Bhagat,  217 N.J.
 22, 38 (2014); see also Brill,  142 N.J. at 540; R. 4:46-2(c).

      "The practical effect of [Rule 4:46-2(c)] is that neither the motion court

nor an appellate court can ignore the elements of the cause of action or the

evidential standard governing the cause of action." Bhagat,  217 N.J. at 38. We

owe no deference to the trial court's legal analysis or interpretation of a statute.

The Palisades At Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC,  230 N.J.
 427, 442 (2017) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan,

 140 N.J. 366, 378 (1995)).

      Pertinent to this appeal, the LAD prohibits employers from discriminating

against employees on the basis of age and disability, when making termination

decisions.    N.J.S.A. 10:5-12(a).     The LAD does not, however, bar "the

termination or change of the employment of any person who in the opinion of

the employer, reasonably arrived at, is unable to perform adequately the duties

of employment, nor to preclude discrimination among individuals on the basis

of competence, performance, conduct or any other reasonable standards."

 N.J.S.A. 10:5-2.1. "Put another way, the LAD acknowledges the authority of

employers to manage their own businesses." Zive v. Stanley Roberts, Inc.,  182 N.J. 436, 446 (2005)

      Because of the difficulty of proving that an employer was motivated by a

discriminatory intent in making a personnel decision, New Jersey has adopted

the burden-shifting analysis articulated by the United States Supreme Court in

McDonnell Douglas Corp. v. Green,  411 U.S. 792 (1973). Zive,  182 N.J. at
 447. In the context of a discharge case, a plaintiff must first demonstrate a

prima facie case of age or disability discrimination by proving: "(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 to perform the same work after he left." Id. at 450

(citing Clowes v. Terminix Int'l, Inc.,  109 N.J. 575, 597 (1988)).

      In this case, there is no dispute that plaintiff was a member of a protected

class, otherwise was performing his job duties adequately, and was terminated.

The dispute focuses on the fourth element of the prima facie test. In evaluating

the fourth prong, we are not persuaded by plaintiff's argument that Grande v.

Saint Clare's Health System,  230 N.J. 1 (2017), marked "[a] trend toward de-

emphasi[zing] the fourth prong" enunciated previously by the Court in Zive.

Rather, in Grande, the only Zive factor in issue was the second prong. Grande,

 230 N.J. at 24.

      If a plaintiff establishes a prima facie case, creating an inference of

discrimination, the burden of production then shifts to the defendant to

"articulate a legitimate, nondiscriminatory reason for the employer's action."

Zive,  182 N.J. at 449 (citing Clowes,  109 N.J. at 596). Where the defendant

does so, "the burden of production shifts back to the employee to prove by a

preponderance of the evidence that the reason articulated by the employer was

merely a pretext for discrimination and not the true reason for the employment

decision." Ibid. "To prove pretext, a plaintiff may not simply show that the

employer's reason was false but must also demonstrate that the employer was

motivated by discriminatory intent." Ibid. (citing Viscik v. Fowler Equip. Co.,

 173 N.J. 1, 14 (2002)). At all times, however, the burden of proof that the

employer engaged in intentional discrimination remains with the employee.

Clowes,  109 N.J. at 596.

      The employer is entitled to summary judgment if, after proffering a

nondiscriminatory reason for its decision, plaintiff cannot "point to some

evidence, direct or circumstantial, from which a factfinder could reasonably

either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe

that an invidious discriminatory reason was more likely than not a motivating

or determinative cause of the employer's action." Zive,  182 N.J. at 455-56.

      Guided by these principles, we first consider plaintiff's age discrimination

claim. In Young v. Hobart West Group,  385 N.J. Super. 448, 459-60 (App. Div.

2005), we found the plaintiff failed to establish she was terminated due to her

age, rather than as a cost reduction measure, where no one was hired to replace

her. Notably, however, we stated further that

            plaintiff cannot show either that she was replaced by
            someone sufficiently younger, or that "age in any

            significant way made a difference" in the treatment she
            was accorded by her employer. Even had plaintiff
            established that her age was a primary factor in
            [defendants'] decision to terminate her, she has not
            refuted defendants' legitimate business reasons for
            discharging her.

             [Id. at 460 (emphasis added).]

      Reviewing the facts in this case in the light most favorable to plaintiff, we

conclude he failed to meet his burden of demonstrating a prima facie case of age

discrimination by showing he was replaced with a younger employee. It is

undisputed that defendant did not hire, or seek to hire, a replacement. To the

contrary, plaintiff's duties were assumed by his supervisor, D'Amato-Cary, an

existing employee at the company.

      Nor did plaintiff proffer facts sufficient to infer that "age in any significant

way made a difference" to his termination. Ibid. At most, plaintiff claims his

co-workers asked how long he worked at the company, implying he was old.

Because the record is replete with evidence that plaintiff was perceived to be

sleeping on the job, and had been warned previously against doing so, we find

no basis for plaintiff's assumption.

      We next consider plaintiff's disability claim.        In particular, plaintiff

testified at his deposition that he believed he was terminated because of his

colitis attack that morning. Plaintiff's claim is purely speculative and belied by

his testimony: "Maybe somebody told [Epstein and Shearer] that I had gone out

and come back. I don't know. Because I only know Patty at the front desk, so I

don't know who could have said something." Plaintiff testified further t hat he

had a good relationship with Patty and he had no reason to believe she would

attempt to have him fired.

      Moreover, it is undisputed that plaintiff did not request an accommodation

for his Crohn's disease. See Raspa v. Office of Sheriff of Cty. of Gloucester,

 191 N.J. 323, 339 (2007) (recognizing an employer has an obligation to attempt

to reasonably accommodate an employee's physical or mental disability);

N.J.A.C. 13:13-2.5.   The employer's obligation is only triggered when the

employer is made aware of the handicap and the employee requests an

accommodation. Tynan v. Vicinage 13 of the Superior Court of N.J.,  351 N.J.

Super. 385, 400-01 (App. Div. 2002). The request need not be in writing and

the employee is not required to utter the words "reasonable accommodation."

Id. at 400. The employee must, however, "'make clear that . . . assistance [is

desired] for his or her disability.'" Ibid. (alterations in original). Once the

employee has conveyed the accommodation request to the employer, "'both

parties have a duty to assist in the search for appropriate reasonable

accommodation and to act in good faith.'" Ibid.

       For the sake of completeness, our de novo review of the record also

supports defendant's claim that it articulated a legitimate, nondiscriminatory

reason for terminating plaintiff's employment, and plaintiff failed to demonstrate

defendant's reason for terminating his job was pretextual.          The unrefuted

evidence demonstrates defendant terminated plaintiff based on reports that he

was sleeping at his desk. Sleeping on the job is not protected activity under the


       We discern no evidence in the record to suggest plaintiff was fired because

he was elderly or disabled. Rather, the reason defendant fired plaintiff was

because it was undisputed that other employees reported he was sleeping at his

desk, and not during breaks in the cafeteria as approved years earlier by Williams

when she was his supervisor in another department. Whether or not plaintiff

was sleeping, dozing, resting or napping, other employees perceived he was

asleep on the job, and plaintiff acknowledged that perception was a possibility.

His termination, therefore was based on legitimate business reasons, including

defendant's need to assuage its employees' morale issues.

       The judge evaluated the facts, assumed the veracity of plaintiff's assertions

of discrimination, and viewed the record in a light most favorable to plaintiff.

On that record, the judge concluded plaintiff was fired because he was sleeping.

As we previously noted, whether plaintiff was actually sleeping is not

dispositive. Rather, plaintiff appeared to be sleeping at his desk with knowledge

that his employer deemed even one occurrence of sleeping "serious enough to

result in immediate discipline, including termination."

      Based on our independent review of the record and applicable law, we are

satisfied plaintiff failed to establish a prima facie case of age or disability

discrimination under the LAD. Even if he did, defendant proffered a legitimate,

nondiscriminatory reason for terminating plaintiff, which plaintiff failed to show

was merely a pretext for discrimination. We therefore affirm the order granting

defendant's motion for summary judgment dismissing the complaint with


      Plaintiff's remaining arguments, including his newly-minted retaliation

claim,3 lack sufficient merit to warrant discussion in our written opinion. R.



  In his merits brief, plaintiff contends defendant terminated him in retaliation
for his 2007 lawsuit, citing the trial court's questions during oral argument.
However, plaintiff's complaint does not allege a retaliation claim. Further, the
court's colloquy during a motion hearing does not constitute fact-finding nor
conclusions of law. See Pardo v. Dominguez,  382 N.J. Super. 489, 492 (App.
Div. 2006).