JOSEPH IKO v. COUNTY OF MIDDLESEX

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4036-17T1

JOSEPH IKO,

          Plaintiff-Respondent,

v.

COUNTY OF MIDDLESEX,

     Defendant-Appellant.
___________________________

                    Submitted May 13, 2019 – Decided June 20, 2019

                    Before Judges Sabatino, Sumners and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Somerset County, Docket No. L-1407-15.

                    Dvorak & Associates LLC, attorneys for appellant
                    (Lori A. Dvorak and Danielle Abouzeid, of counsel and
                    on the briefs).

                    Castronovo & McKinney, LLC, attorneys for
                    respondent (Paul R. Castronovo, of counsel and on the
                    brief; Megan Frese Porio, on the brief).

PER CURIAM
      Defendant County of Middlesex appeals from the trial court's denial of its

motion for a new trial after a jury rendered a verdict in plaintiff Joseph Iko's

favor. Plaintiff brought the action pursuant to the New Jersey Law Against

Discrimination ("LAD"),  N.J.S.A. 10:5-1 to -42, alleging that he endured eleven

years of harassment at his workplace, the Middlesex County Sheriff's

Department ("Department" or "Sheriff's Department"), based on his undisputed

disability as a Type I diabetic. At trial, there was overwhelming testimony from

plaintiff's coworkers corroborating plaintiff's claims that he was the subject of

frequent verbal taunts regarding his diabetes and related medical problems. On

appeal, defendant contends the trial court abused its discretion in its disposition

of two in limine motions, and that those errors necessitate a new trial. Defendant

also asserts that the trial court should have granted its motion to dismiss at the

close of plaintiff's case-in-chief based on the lack of expert testimony linking

his eyesight problems, a pancreas transplant, and an aortic tear to his diabetes.

Having reviewed the record in light of the governing legal principles, we reject

defendant's arguments and affirm.




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                                         I.

Background

        Plaintiff has been diagnosed with Type I diabetes since he was six years

old.

        In August 1992, plaintiff began his employment with the Sheriff's

Department.1 He worked with the Department until his retirement on August 1,

2017.

        In 2004, plaintiff underwent a pancreas transplant because of his diabetes.

When plaintiff returned to work after the transplant, his high-level supervisors

and coworkers began harassing him by regularly calling him names such as

"Half-Dead," "Mr. Magoo," "Stevie Wonder," "Jerry's Kids," "Chinaman," and

"Walking Dead."        Plaintiff's then-supervisor Captain James Rizzi 2 called

plaintiff "Half-Dead" "[s]o many times I can't even count."           In addition,

Lieutenant Tom Farrell,3 Captain Rizzi and several of plaintiff's coworkers


1
    Plaintiff started as an officer and became an investigator in 1995.
2
  The harassment began when Rizzi was a Sergeant. Rizzi was promoted to
Lieutenant in or around 2011 and to Captain in or around November 2014.
3
  The harassment began when Farrell was a Sergeant. Farrell was promoted to
Lieutenant in or around 2006 and to Director of Investigations in or around 2007.
He was reassigned as Lieutenant in 2012.


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called him "Eye Lab" on a "daily basis." Plaintiff was offended by these

comments and asked to see the Sherriff to complain, but Captain Rizzi told

plaintiff that the Sheriff did not want to speak with him.

      Additionally, Lieutenant Farrell, Sergeant Christopher Neder, Lieutenant

Eric DeProssimo4, and Director Gilbert Nielsen 5 regularly called plaintiff "Half-

Dead." Plaintiff was offended by these comments and asked his superiors to

stop, but they just smiled, laughed, or ignored him.

      Further, in or around 2005, Lieutenant Farrell told plaintiff to "shut the

f*** up with you and your n***** pancreas." Plaintiff was upset by this remark

and asked to speak to the Sheriff. However, Captain Rizzi told plaintiff that the

Sheriff did not want to see him.

      In 2007, doctors removed plaintiff's transplanted pancreas as a result of a

life-threatening aortic tear.   He was hospitalized for almost two months

following the tear. When plaintiff returned to work following the surgery, he

was required to re-qualify for firearms by shooting a submachine gun that he



4
   The harassment began when DeProssimo was a Sergeant. He was promoted
to Lieutenant in 2012.
5
  The harassment began when Nielson was a Sergeant. He was promoted to
Lieutenant in April 2013 and again promoted to Director in 2014.


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had never used before. When he had a problem seeing the target through the

weapon, Chief Michael Barbieri told plaintiff, using expletives, that he should

not be working with the Department if he was unable to see the target.

Motions in Limine

      In August 2015, plaintiff filed the instant lawsuit claiming the pervasive

verbal abuse subjected him to a hostile work environment. On October 16, 2017,

just prior to the start of trial, the trial court decided the two motions in limine

that are the subject of this appeal.

      a. Plaintiff's Motion in Limine to Bar Evidence Relating to the Semenza
         incident

      The first motion concerned a disciplinary proceeding arising from a June

2013 incident in which plaintiff and his partner, Investigator Dominick

Semenza, were involved in an on-duty motor vehicle accident after the two

improperly decided to drive to Piscataway in a County-owned vehicle without

requesting permission. While en route, Semenza ran a red light, allegedly while

texting, and hit another car. Both plaintiff and Semenza were initially charged

with a variety of infractions regarding improper behavior and an internal affairs

("IA") investigation resulted.

      During the first investigation, plaintiff claimed that he could not see

whether Semenza was using his cell phone just prior to the accident, explaining

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that a mobile data terminal blocked his view. The Sheriff's Department did not

believe this explanation and opened a second IA investigation, ultimately

charging plaintiff with infractions including untruthfulness. The investigations

concluded by sustaining the charges against plaintiff and resulted in a five-day

suspension for the improper behavior charges and a fifteen-day suspension for

untruthfulness. The charges and suspensions were ultimately upheld by the Law

Division in a November 9, 2015 unpublished opinion after plaintiff filed an

action in lieu of prerogative writs.

      Plaintiff made a motion in limine to exclude evidence of the Semenza

incident, claiming it was irrelevant, unduly prejudicial, and inadmissible

character evidence. Defendant opposed the motion, claiming that the evidence

was relevant and admissible as an alternate source of plaintiff's emotional

distress and as evidence of plaintiff's motive in filing this lawsuit. The trial

court granted the motion in part and denied it in part, noting that:

            Rule 404 bars any reference to these proceedings as
            either prior bad acts or motives pursuit. 404 is clear
            that it's a general – prohibition on the use of character
            evidence or evidence of prior acts to prove that a person
            acted in conformity therewith. . . . There's just too
            much concern of opening a trial within a trial.
            However, defendants do raise a legitimate issue with
            regard to defendant's psychological damages and the
            need for reference to those proceedings. I will permit
            – I will permit the use of those proceedings or reference

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            to those proceedings by the defense expert for the
            limited purpose of the doctor's opinion as to the fact
            that there was a litigation pending. There will be no
            reference of the facts of those claims and the strength
            or relative weaknesses of those claims, but merely that
            there was a litigation pending that could have
            contributed to the plaintiff's psychological damages.

      During trial, consistent with the court's ruling, defendant's psychology

expert, Doctor Nancy Just, testified that she "constructed a time line as to each

time [plaintiff] either sought psychological treatment or his general physician

noted that he was depressed or if he, in one instance lost interest in things that

he used to enjoy." She noted that plaintiff's depression corresponded to the time

that he was under disciplinary litigation.

      b. Defendant's Motion in Limine to Bar Plaintiff from Referencing Other
         Harassment Suits Against Defendant

      The other motion at issue on appeal concerned defendant's application to

exclude the testimony of eight female former Sheriff's Department employees

who had filed civil complaints against defendant for sexual harassment and/or

gender discrimination. These lawsuits alleged conduct that occurred from the

mid-1990s to 2012. Defendant settled all of these cases with no admission of

liability. Defendant claimed that the proffered testimony was irrelevant and

unduly prejudicial. Plaintiff countered that to the extent defendant would assert

at trial an affirmative defense based on Aguas v. State,  220 N.J. 494, 513 (2015),

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the evidence was relevant and admissible to show that defendant's harassment

policy and complaint procedures were "in name only."6

        Again, the trial court granted the motion in part and denied it in part. In

so ruling, the trial court concluded:

              These witnesses which the plaintiff intends to call to
              show a – basically to show you the inadequacy of the
              policy of that the policies were not being followed only
              serves to create confusion in the jury’s mind and is
              really unnecessary and unduly prejudicial. I will
              however – so for that reason defense motion is granted
              in part. However, in the event that the defense raises
              the issue as to the adequacy of their policies or that
              these policies are always followed the plaintiff will be
              free on rebuttal to call these witnesses to rebut that
              argument. . . . [A]s I said in the event that the defense
              contends on their case that these policies are adequate
              or that they’ve always been followed and somehow
              plaintiff is fabricating his fears that he would be
              retaliated against plaintiff is free to bring those
              witnesses.

Trial

        Following these rulings, the matter proceeded to trial. Prior to trial, the

parties stipulated that plaintiff's diabetes constitutes a disability under the LAD.




6
  Employers are able to present their anti-harassment policies to defend against
harassment claims from employees. Aguas,  220 N.J. at 500. Under Aguas,
"[t]he efficacy of an employer's remedial program is highly pertinent to an
employer's defense." Id. at 513
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      The testimony at trial conclusively established that plaintiff's disability

was generally known in the workplace. Several Sheriff's Department employees

who testified explained that it was well known at the Department that plaintiff

had diabetes, and that it was generally understood that plaintiff's poor eyesight,

pancreas transplant, and aortic tear resulted from his diabetes.

      Plaintiff's specific allegations of harassment were likewise widely

corroborated at trial.   The Sheriff's Department employees who testified

confirmed that supervisors and employees were heard calling plaintiff insulting

names, including "Eye Lab," "Mr. Magoo," "Walking Dead," and "Half-Dead"

on a regularly at work from 2005 until his 2017 retirement, despite plaintiff

asking people to stop.

      Moreover, Investigator Chris Jarema, plaintiff's former partner, testified

that he heard Lieutenant Farrell tell plaintiff "F*** you [and] your n*****

pancreas" in or around 2005 to 2006.

      Significantly, Undersheriff Kevin Harris testified that in 2016, he

disciplined Lieutenants Farrell, Neder, and DeProssimo for calling plaintiff

"Eye Lab," and testified that he believed plaintiff's supervisors were being

untruthful by denying this nickname.




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      After plaintiff rested his case, defendant made a motion to dismiss

pursuant to R. 4:37-2 for failure to prove that his eye problems and pancreas

transplant were connected to his diabetes, despite the prior stipulation that

plaintiff's diabetes constituted a disability under the LAD. Defendant argued

that the case law requires expert evidence of disabilities that are not "readily

apparent" and that, although defendant had stipulated to the diabetes, "[w]e don't

have any proof, necessarily, that diabetes affected the vision, or diabetes

necessitated a pancreas transplant or had any effect on this aortic break."

      The trial court denied defendant's motion and noted:

            I certainly had testimony coming from the plaintiff that
            he was diabetic, in fact, everybody agrees, yes, he was
            diabetic . . . . I have a substantial number of witnesses
            who have come forward, that that was common
            knowledge at the workplace that he had diabetes and
            that he was suffering a consequence of those diabetes
            with relationship to his eyesight, his pancreas and other
            maladies that were described by people, described by
            the plaintiff himself. . . . So I don't have a medical
            expert coming forward to give that testimony, but I
            certainly have a substantial amount of evidence and
            testimony in the case to support the argument that
            everybody there knew that he had diabetes and that he
            had other related problems related to the diabetes. . . .
            And so I find that the plaintiff has produced some
            evidence to show that the conduct occurred because of
            his diabetes, and that's the standard that he had to meet.




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      Following the denial of its motion, the trial proceeded to defendant's case-

in-chief. Defendant's witnesses, including Lieutenants Farrell, Sergeant Neder,

and Lieutenant DeProssimo, Director Nielsen, Captain Rizzi, Undersheriff

Angelo Falcone, and Chief Barbieri, simply and categorically denied plaintiff's

allegations.

      On October 24, 2017, the trial concluded at which time the jury found

defendant liable and awarded a total of $885,000 to plaintiff. Specifically, the

jury awarded $640,000 in compensatory damages and $245,000 in punitive

damages.

Post-Trial Motion for a New Trial

      Following the jury's verdict, defendant filed a motion for a new trial on

the basis of the court's in limine rulings and its denial of defendant's motion to

dismiss at the close of plaintiff’s case-in-chief. The court denied the motion,

reiterating its prior finding that the Semenza incident was irrelevant to plaintiff's

motive, unduly prejudicial, and improper character evidence; and that to the

extent it was relevant to emotional distress, "[d]efendant was able to adequately

address that issue at trial through the testimony of [its] psychological expert and

cross-examination of [p]laintiff . . . without going into details of regarding that

discipline." Further, the court concluded that its conditional ruling regarding


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                                        11
defendant's motion in limine was a "valid balancing of the parties' concerns and

did not prevent [d]efendant from introducing evidence regarding its Harassment

Policy or asserting an Aguas defense." Finally, the court found that defendant

"made a tactical decision to stipulate that [p]laintiff had diabetes[,]" that

plaintiff's diabetes was "readily apparent to all that would work with [p]laintiff,"

that plaintiff met the "physical disability" standard of the LAD, and that expert

evidence was not required in harassment cases.

      This appeal ensued.

                                        II.

      "The standard governing an appellate tribunal's review of a trial court's

action on a new trial motion is essentially the same as that controlling the trial

judge." Dolson v. Anastasia,  55 N.J. 2, 7 (1969) (citing Hager v. Weber,  7 N.J.
 201, 212 (1951)).

            A new trial may be granted to all or any of the parties
            and as to all or part of the issues on motion made to the
            trial judge. . . . The trial judge shall grant the motion
            if, having given due regard to the opportunity of the
            jury to pass upon the credibility of the witnesses, it
            clearly and convincingly appears that there was a
            miscarriage of justice under the law.

            [R. 4:49-1(a); ibid.]




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Motions in Limine

      On appeal, defendant first contends that the trial court's rulings on two

motions in limine were an abuse of discretion and resulted in a miscarriage of

justice requiring a new trial. We disagree.

      An appellate court reviews a trial court's evidentiary rulings for abuse of

discretion. Brenman v. Demello,  191 N.J. 18, 31 (2007). Thus, an appellate

court will not disturb a trial court's evidentiary rulings unless they are "so wide

of the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins.

Co.,  160 N.J. 482, 492 (1999) (quoting State v. Carter,  91 N.J. 86, 106 (1982)).

However, an appellate court will review questions of law de novo. Balsamides

v. Protameen Chem., Inc.,  160 N.J. 352, 372 (1999).

      A motion in limine is a "pretrial request that certain inadmissible evidence

not be referred to or offered at trial." Cho v. Trinitas Reg'l Med. Center,  443 N.J. Super. 461, 470 (App. Div. 2015) (quoting Black's Law Dictionary 791 (9th

ed. 2009)). Although our courts generally disfavor motions in limine, trial

judges retain the discretion to grant the motions when appropriate. Ibid.

      Except in certain circumstances, relevant evidence, which is "evidence

having a tendency in reason to prove or disprove any fact of consequence to the

determination of the action[,]" is admissible. N.J.R.E. 401, 402. See also State


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v. Castagna,  400 N.J. Super. 164, 174 (App. Div. 2008). The evidence must be

probative of a fact that is "really in issue in the case[,]" as determined by

reference to the applicable substantive law. State v. Buckley,  216 N.J. 249, 261

(2013) (quoting State v. Hutchins,  241 N.J. Super. 353, 359 (App. Div. 1990)).

   A. The Semenza Incident

      "Evidence of a person's character or character trait, including a trait of

care or skill or lack thereof, is not admissible for the purpose of proving that the

person acted in conformity therewith on a particular occasion[,]" except in

certain circumstances. N.J.R.E. 404(a). Further,

            evidence of other crimes, wrongs, or acts is not
            admissible to prove the disposition of a person in order
            to show that such person acted in conformity therewith.
            Such evidence may be admitted for other purposes,
            such as proof of motive, opportunity, intent,
            preparation, plan, knowledge, identity or absence of
            mistake or accident when such matters are relevant to a
            material issue in dispute.

            [N.J.R.E. 404(b); State v. Krivacska,  341 N.J. Super. 1,
            38-39 (App. Div. 2001).]

      In Hill v. N.J. Dept. of Corr. Comm'r Fauver,  342 N.J. Super. 273, 304-

05 (App. Div. 2001), we upheld the admission of evidence that a defendant left

her previous job due to allegations of embezzlement, rather than her stated

reason that she was relocating following a divorce, to establish her motive for


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filing an allegedly false sexual harassment suit.         In Hill, the plaintiff,

superintendent of a juvenile detention facility, was fired after a teacher,

defendant June Peterson, made complaints that the plaintiff sexually harassed

her. Id. at 288-89. Peterson's complaints followed an incident in which the

plaintiff threatened Peterson with termination based on reports that she was

having inappropriate sexual relations with the inmates. Id. at 287-89. Following

his termination, the plaintiff brought various claims against his employer and

Peterson, including "conspiracy to file false sexual harassment charges." Id. at

285, 289. Under those facts, we found that the issue of Peterson's motive was

central to the plaintiff's claim that Peterson filed a false charge against him to

salvage her position and avoid termination.

       Here, in contrast, plaintiff's motive for filing the instant lawsuit is not

probative of a fact that is "really in issue in the case[.]" Buckley,  216 N.J. at
 261.    The trial court properly determined that the evidence of a minor

disciplinary proceeding that resulted in a brief suspension did not serve to "prove

or disprove any fact of consequence to the determination of" whether the alleged

conduct amounted to harassment. N.J.R.E. 401, 402; Lehmann,  132 N.J. at 603-

04.    Rather, defendant's attempt to get the prior underlying charge of

untruthfulness before the jury was, as the judge correctly found, a violation of


                                                                           A-4036-17T1
                                        15 N.J.R.E. 404(a). The judge properly recognized the relevance of plaintiff's prior

charges to his claims of psychological damages and allowed defendant's

psychologist to testify that his depression occurred in a timeframe when he was

involved in disciplinary litigation.       That decision was a reasonable

accommodation of the parties' respective interests and consistent with governing

law. We discern no abuse of discretion.

   B. Unrelated sexual harassment claims

      We also reject defendant's contention that the trial court abused its

discretion in disposing of the defendant's motion to exclude testimony of other

harassment claims against the Sheriff's Department. As the trial court found,

harassment of other employees is relevant and admissible to the efficacy of an

employer's remedial program when asserted as a defense.         See Godfrey v.

Princeton Theological Seminary,  196 N.J. 178, 201 (2008) (citing Gaines v.

Bellino,  173 N.J. 301, 313 (2002)) ("In addition to considering whether an

employer's preventative measures exist and have been enforced, we also have

found to be relevant evidence that addressed the adequacy of an institution's

response to prior reported incidents of sexual harassment. Such evidence is

helpful to determine whether an institution may be permitted to disclaim

vicarious liability on grounds of having exercised 'due care.'"). The trial court


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properly applied the law by holding that the evidence would not be admissible

on plaintiff's case-in-chief, but would be admissible as rebuttal should defendant

pursue an Aguas defense.

      We conclude that the trial court did not abuse its discretion in disposing

of the subject motions in limine, and we find that those decisions did not result

in a manifest injustice requiring a new trial.

Motion for Involuntary Dismissal

      Next, defendant argues that the trial court erred in denying its motion for

involuntary dismissal at the end of plaintiff's case-in-chief because plaintiff

failed to prove "that he suffered from visible symptoms of diabetes upon which

he based his claim of harassment by way of" expert testimony. We disagree.

      Appellate courts "review a motion for involuntary dismissal at trial using

the same standard as the trial court." Prager v. Joyce Honda, Inc.,  447 N.J.

Super. 124, 134 (App. Div. 2016) (citing Smith v. Millville Rescue Squad,  225 N.J. 373, 397 (2016)).

            After having completed the presentation of the
            evidence on all matters other than the matter of
            damages (if that is an issue), the plaintiff shall so
            announce to the court, and thereupon the defendant,
            without waiving the right to offer evidence in the event
            the motion is not granted, may move for a dismissal of
            the action or of any claim on the ground that upon the
            facts and upon the law the plaintiff has shown no right

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             to relief. Whether the action is tried with or without a
             jury, such motion shall be denied if the evidence,
             together with the legitimate inferences therefrom, could
             sustain a judgment in plaintiff's favor.

             [R. 4:37-2.]

      The trial court must determine if "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[.]" Verdicchio v. Ricca,  179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc.,  164 N.J. 598, 612

(2000)). If reasonable minds can differ, the motion must be denied. Ibid. Stated

another way, "the motion 'should be granted where no rational juror could

conclude that the plaintiff marshaled sufficient evidence to satisfy each prima

facie element of a cause of action.'" Prager v. Joyce Honda, Inc.,  447 N.J. Super.
 124, 134 (App. Div. 2016) (quoting Godfrey v. Princeton Theological Seminary,

 196 N.J. 178, 197,  952 A.2d 1034 (2008)).

      The LAD provides that "[i]t shall be an unlawful employment practice, or,

as the case may be, an unlawful discrimination . . . [f]or an employer, because

of . . . disability . . . to discriminate against such individual in . . . conditions or

privileges of employment."  N.J.S.A. 10:5-12(a). A plaintiff can state a claim

for discrimination under the LAD by demonstrating that his superiors and/or

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coworkers created a hostile work environment. See Lehmann v. Toys 'R' Us,

Inc.,  132 N.J. 587, 603 (1993); Taylor v. Metzger,  152 N.J. 490, 498 (1998). To

prove that harassing workplace conduct amounts to hostile work environment

discrimination based on a plaintiff's disability, he or she must demonstrate that

the conduct "(1) would not have occurred but for the employee's [disability];

and it was (2) severe or pervasive enough to make a (3) reasonable [diabetic]

believe that (4) the conditions of employment are altered and the working

environment is hostile or abusive." Lehmann,  132 N.J. at 603-04 (emphasis in

original). See also Leonard v. Metropolitan Life Ins. Go.,  318 N.J. Super. 337,

344 (App. Div. 1999).

      In a hostile work environment case, the focus in on the harasser's conduct,

not the plaintiff's disability. See Leonard v. Metropolitan Life Ins. Co.,  318 N.J.

Super. 337, 342-44 (App. Div. 1999). For instance, in Leonard, the plaintiff

suffered from Type II insulin-dependent diabetes and had to inject himself with

insulin twice a day. Id. at 339. If his blood sugar dropped, the plaintiff felt

shaky and needed to ingest some form of simple sugar. Ibid. The plaintiff's

claim arose from two incidents during which his supervisor told him, using

expletives, that he could not miss a meeting to eat lunch despite his diabetic

condition. Id. at 340. The plaintiff brought a LAD claim of hostile work


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environment based on disability, claiming that he was subjected to a hostile

work environment "because of his physical handicap, diabetes." Id. at 339.

      The motion judge granted summary judgment to the defendant due to the

plaintiff's failure to "demonstrate he had been required to labor under conditions

unreasonably different from his co-employees," but we reversed and remanded

for trial. Id. at 339, 346. In reversing, we explained that, under the hostile work

environment standard:

            [i]t is the harasser's conduct, in this case [the plaintiff's
            supervisor's] statements to or treatment of plaintiff, that
            should have been the focus of the motion judge’s
            inquiry. . . . The issue is whether a rational fact finder
            could determine that [the supervisor's] conduct
            occurred because of plaintiff's diabetes and that a
            reasonable diabetic would consider the conduct
            "sufficiently severe or pervasive to alter the conditions
            of employment and create an intimidating, hostile, or
            offensive working environment."

            [Id. at 344 (citing Lehmann,  132 N.J. at 603-04; Taylor,
             152 N.J. at 498).]

      We reject defendant's argument that Viscik v. Fowler Equipment Co.,  173 N.J. 1 (2002) and Clowes v. Terminix International,  109 N.J. 575 (1988)

required plaintiff to provide expert or treating physician medical testimony to

causally relate his limited eyesight, pancreas transplant and aortic tear to his

conceded disability of diabetes.


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      In Clowes, the "principal issue . . . is whether alcoholism is to be deemed

a handicap under the New Jersey Law Against Discrimination[.]"  109 N.J. at
 577. There, the plaintiff alleged that he was unlawfully discharged from his

employment due to his alcoholism. Id. at 584. After consideration of the

plaintiff's expert testimony, the Court held that alcoholism was a "handicap"

under the LAD. Id. at 591-93, 595. However, the Court also concluded that the

plaintiff failed to prove that he suffered from alcoholism because the "only

evidence in the record regarding Clowes' alleged alcoholism is his own assertion

that he was an alcoholic, and partial medical records from his hospitalization"

at a rehabilitation center. Id. at 598. The Court noted that the plaintiff presented

no evidence that he was an alcoholic via his expert or any other witness who had

conducted a physical examination or reviewed the relevant medical records. Id.

at 597.

      In Viscik, the plaintiff alleged that her employer terminated her because

of her morbid obesity.  173 N.J. at 5. The plaintiff attributed her morbid obesity

to two factors: a "metabolic disorder that prevents [her] body from breaking

down fats," and injuries from a car accident which resulted in degenerative

arthritis, restricted lung capacity, and depression.  173 N.J. at 6. To support her

claim, the plaintiff presented the testimony of her treating physician who


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"testified about Viscik's illnesses, including her obesity and its complications,

as a medical expert qualified in internal medicine and weight-loss." Id. at 10.

The Court concluded that "Viscik's testimony, medical history, and her expert's

opinion fully support the finding that she established a physical handicap within

the meaning of LAD." Id. at 17.

      Viscik and Clowes, however, did not involve hostile work environment

claims and are thus distinguishable. The focus in a hostile work environment

case is the harasser's conduct, not the plaintiff's disability. Leonard,  318 N.J.

Super. at 342-44. Here, as in Leonard, there was abundant evidence that plaintiff

suffered verbal harassment from his coworkers and superiors because of his

diabetes. Id. at 339. That made out a prima facie case of harassment and

therefore the trial court properly denied the motion for involuntary dismissal.

      Regardless, as the trial court noted, defendant, apparently for strategic

purposes, stipulated that plaintiff was diagnosed with Type I diabetes and that

his diabetes constitutes a disability under the LAD. Thus, unlike in Viscik and

Clowes, there was no need for medical testimony that would demonstrate that

plaintiff's condition amounted to diabetes or that it constituted a disability under

the LAD. Cf.  173 N.J. at 17;  109 N.J. at 577. Moreover, as the trial court found,

there was abundant testimony establishing that plaintiff's limited eyesight,


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pancreas transplant, and aortic tear were generally understood throughout the

workplace to have been caused by his diabetes. Thus, accepting all of plaintiff's

testimony as true, and affording plaintiff all inferences in his favor, a reasonable

jury could, and did, find that defendant's employees harassed plaintiff as a result

of his diabetes, and that the harassment was severe and pervasive.               See

Verdicchio,  179 N.J. at 30; Prager,  447 N.J. Super. at 134. Therefore, the trial

court correctly denied defendant's motion to dismiss.

      To the extent we have not specifically addressed any arguments raised by

defendant, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                            A-4036-17T1
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