SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-0875-95T5
THOMAS A. BARBERA, JR.,
Plaintiff-Appellant,
v.
I.V. DI MARTINO, individually,
ROBERT D. LIPSCHER, individually,
THE STATE OF NEW JERSEY, THE
ADMINISTRATIVE OFFICE OF THE COURTS
OF THE STATE OF NEW JERSEY,
Defendants-Respondents,
and
THE CAMDEN COUNTY BOARD OF FREEHOLDERS,
and THE COUNTY OF CAMDEN,
Defendants.
_______________________________________________________
Argued November 12, 1997 - Decided December
4, 1997
Before Judges Pressler, Conley and Carchman.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County.
R. Alan Aslaksen argued the cause for
appellant (Mr. Aslaksen and Marie V. Nasuti,
on the brief).
Glenn R. Jones, Deputy Attorney General,
argued the cause for respondents (Peter
Verniero, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Mr. Jones and Gauri Shirali Shah,
Deputy Attorney General, on the brief).
The opinion of the court was delivered by
CONLEY, J.A.D.
Plaintiff, a former Assistant Trial Court Administrator
(ATCA) in Camden County, appeals a jury verdict in favor of the
State defendantsSee footnote 1 on his Law Against Discrimination (LAD)
failure to hire/rehire claim. He also appeals various summary
judgments and related orders in favor of the State defendants on
his LAD termination claim, wrongful discharge and other related
claims, including the dismissal of his claims as to the
individually named State defendants and his claim for punitive
damages. We affirm.
Plaintiff first became an ATCA in 1980 and, prior to April 6, 1987, served not only without adverse incident, but well. On April 6, 1987, plaintiff assaulted his supervisor, Dollie Gallagher, in the Camden County courthouse, where he and his supervisor worked.
The incident, later diagnosed by plaintiff's doctors as the product of a temporary psychotic episode, was described by several witnesses in their reports to the then Camden County Assignment Judge, Judge DiMartino, as follows:
1) Report of Rosemarie Bregatta:
The next thing I heard was Tom rushing from Dolly's office and ranting that Dolly was the devil and he had to kill her . . . At this point Dolly started out the door to the private corridor. He ran after her and I ran after him. Dolly was on the floor and Tom was hitting her . . . next thing I knew Nick Carungo and Rick Mroz were holding onto Tom along with Lil and I.
2) Report of Anna Bonn:
Dolly came out of her office a short time
later and was walking toward the front of our
office when Tom came out yelling to her that
she was the devil and yelling to us that she
was the devil. He said he was going to have
to kill her and he said I am going to throw
you out the window. Dolly continued around
the office . . . with Tom following her and
as he went by touching Rosemarie on the
shoulder and he told her she was the devil,
touched me on the shoulder and said I was the
devil, touched Elaine on the shoulder and
told her she was the devil . . . we heard a
thud and we ran out, saw Dollie laying on the
floor and he was beating her. We ran out and
tried to stop him and he was yelling she was
the devil and he had to kill her and that he
was Jesus Christ.
3) Report of Nicholas Carungo:
I was working in my office . . . when I thought I
heard a woman scream. I went to ask my secretary
if she heard anything and we heard more screams.
I then opened the office door and saw Thomas
Barbera kicking and punching Dolly Gallagher.
Several other people were trying to restrain him.
4) Report of Dorothy Wall:
I heard a man's voice hollering "I have to kill
you, you're the devil." I looked out of the glass
partition beside the door and saw Tom Barbera
surrounded by TCA's staff trying to restrain him
. . . (Lil Mungioli, Rosemarie Bregatta, Kathleen
Ofstrefsky). TCA Dolly Gallagher was on the floor
and Tom was kicking her and trying to grab at her
and swing at her.
The victim, too, submitted a report in which she explained:
I had gone only fifteen or so feet when I heard
the door open and Tab [plaintiff] came out of the
office shouting that he was going to kill me. I
turned to see him as he shouted this. The next
thing I remember, I was on the floor, apparently
coming back to consciousness (the same type of
feeling that I have had when I had fainted) and I
could not see anything, but I could hear distant
female voices shouting for me to get up, to get
away (or perhaps for Tab to get away). I tried to
move my legs but they felt numb (pins and needles
feeling). I remember being hit once on each side
of my face at this time. I then saw Rick Moroz
running down the hall toward me. The next thing I
remember is being helped up off the floor and back
to my office. . . .
From these reports Judge DiMartino reached the following
conclusions:
I read these reports and it was quite clear that
he [plaintiff] tackled her [Dolly Gallagher]. He
flailed his arms and fists at her, kept telling
her he was going to kill her. He had to throw her
out the window, that she was the devil. He had to
kill her. You also must understand that one of
the difficulties about the beating is where it
occurred. The hallways are solid concrete with an
indoor-outdoor carpeting on top. She had been
beaten about the head, the face, her face and
arms, her glasses were broken. It was just an
intolerable situation.
[Emphasis added.]
Plaintiff, therefore, was fired.
Plaintiff has never disputed that he assaulted Ms.
Gallagher. And although plaintiff characterizes his termination
as the product of an unfounded fear of his then psychotic
condition, defendants have consistently asserted that plaintiff
was terminated because of the assault. When deposed during this
litigation, Judge DiMartino explained that he decided to fire
plaintiff not because of plaintiff's then psychiatric
disabilitySee footnote 2 but because of his conduct in attacking Ms. Gallagher:
[T]he mental illness would have no part in
the decision to terminate Tom because I was
terminating him for what he did, not for the
cause of what he did. I was terminating him
because he physically beat his supervisor,
his superior and in addition to that I felt
that regardless of what the reason for that
was that he would not be any longer effective
in an atmosphere where people were going to
have some hesitancy about him. He was
working with a whole staff of women who felt
somewhat insecure and especially when his
boss was so insecure that she would have
resigned if I permitted him to come back.
By letter of May 4, 1987, DiMartino advised plaintiff that
he would be terminated as of May 15, 1987. He pointed out that,
as an appointee of an assignment judge pursuant to R. 1:33-4(e),
plaintiff served at the pleasure of, and was subject to discharge
by, the assignment judge. In explaining to plaintiff why he was
being fired, Judge DiMartino, without equivocation, told him:
On April 6, 1987 you physically assaulted your
supervisor, the Trial Court Administrator, which
resulted in personal injury to her and required
hospital attention. I have carefully reviewed all
of the statements of the employees who witnessed
this attack upon her. Such physical violence
against another employee is so egregious that
there are no circumstances that justify your
return.
[Emphasis added.]
Subsequent to his termination and continuing up to the time
of trial in June 1995, plaintiff applied for approximately
twenty-nine positions. Most were within the AOC and at the State
level; some were at the county level. The first application from
plaintiff was in June 1987 for the position from which he had
been terminated. Plaintiff continued to apply for positions
throughout the trial proceedings.See footnote 3
In 1988, plaintiff filed a complaint against the State
defendantsSee footnote 4 alleging wrongful termination, failure to
hire/rehire and failure to make reasonable accommodations under
the LAD (counts one, two and three of the complaint).
Specifically, plaintiff alleged that he had been discriminated
against as a mentally handicapped person under the LAD. In
addition, plaintiff also asserted a Woolley v. Hoffman-LaRoche,
Inc.,
99 N.J. 284, modified,
101 N.J. 10 (1985), claim for
wrongful termination in violation of public policy/implied
contract (count four), a due process claim for violation of
procedural rights (count five), and a claim for punitive damages
(count six).
By the time of trial the only remaining cause of action was
that alleged in count two - LAD discrimination in failure to hire
or rehire. During the jury trial, Judge DiMartino testified as
to the reason for plaintiff's termination, that is the assault
upon Ms. Gallagher, and told the jury that following the attack
he determined that plaintiff could not assume his former ATCA
position or any position that would place him in contact with Ms.
Gallagher, not because of the underlying psychiatric condition,
but because of the act of violence towards Ms. Gallagher.
Defendant Lipscher, too, testified that plaintiff's
termination as ATCA was premised upon the fact that he physically
attacked his supervisor, Ms. Gallagher, rather than the
underlying psychiatric condition. Because of plaintiff's
conduct, he felt that plaintiff should not hold any position
wherein he would work closely with Ms. Gallagher. Four of
plaintiff's applications were for such positions (two separate
applications for ATCA, Camden County, one application for TCA,
Burlington County, and one application for Track Coordinator,
Camden County).
As to plaintiff's applications for positions that would not
entail contact with Ms. Gallagher, Mr. Lipscher, and other AOC
witnesses, testified that plaintiff was treated like any other
applicant and that there were no instructions within the AOC not
to interview or hire plaintiff. Plaintiff presented no evidence
to the contrary. Moreover, the evidence was undisputed that for
the county positions, it was the county hiring authority, rather
than the AOC, which had responsibility for recruitment and hiring
and that for those positions, the counties maintained the
recruitment files. Plaintiff presented no evidence of any county
actions in connection with the county positions.
All the State witnesses, then, unequivocally asserted that
there was no prohibition against plaintiff obtaining a job, other
than the four positions plaintiff had applied for which would
have put him in direct contact with Ms. Gallagher. As to those
four positions, both Judge DiMartino and Mr. Lipscher testified
plaintiff was not hired because of his assault upon Ms.
Gallagher.
As we understand the fundamental premise for plaintiff's substantive claims, it is that plaintiff suffered from a psychiatric condition at the time of the assault, that the assault was a product of that condition, and that the condition has since been treated and no longer exists, yet plaintiff not only was fired, but consistently rejected on his subsequent employment applications. Plaintiff presented undisputed medical evidence that the psychotic episode in May 1987 was temporary and that the causative psychiatric condition has been treated and cured. He has asserted throughout that he was fired, and not thereafter rehired to any position that he qualified for, because of his medical condition. Contrariwise, the defendants have consistently maintained that it was the assault which caused his termination and that, as to his subsequent employment efforts, there was no general policy not to rehire him, except as to those
positions that would put him in proximity with Ms. Gallagher and
that was solely because of the assault.
In this respect, the jury was instructed during the trial on
plaintiff's prima facie LAD burden of proof, and then instructed:
The next thing you're going to have to decide
is part of the explanation I just gave. Do you
find that the defendant has articulated or
advanced a legitimately nondiscriminatory reason
for its decision not to hire the plaintiff for all
of the positions for which the plaintiff applied?
Now, the plaintiff -- well, the defendant asserts
that he has asserted or articulated reasons,
legitimate reasons, nondiscriminatory reasons for
its decision not to hire. Now, in certain
positions it was because -- they allege it was
because of the attack on Dollie Gallagher. In
other positions it was because there was simply no
policy or information disseminated not to consider
him, that he was deemed qualified as far as
meeting the qualifications set forth in the
posting, he was treated the same way as all the
others, and that the hiring authority eliminated
many other people as far as interviews. They only
selected part of those resumes or the group of
resumes to decide to interview. Now, that doesn't
have to be by -- the articulation of advancement
of a legitimate nondiscriminatory reason doesn't
have to be proven by a preponderance of the
evidence. It has to say, did they assert -- do
they assert one in this case. If they have, then
you have to decide whether the defendant -- that
the plaintiff has proven by a preponderance of
evidence that the defendants' reason, legitimate
nondiscriminatory reason that they set forth was a
pretext for discrimination for any of the
positions for which the plaintiff applied. And
you don't have to remember all these, because
they're all going to be in writing, and you're
going to have them with you.
The next thing that you're going to have to
decide is -- well, let me just pause for a moment.
Well, let me talk about what I've just gone over,
because I've taken notes from the questions, but
let me just say this. The initial case in support
of plaintiff's claim must be shown by the
plaintiff on the first part by proving that he
applied possessing the experience, that
individuals involved had knowledge of plaintiff's
mental illness, that he was treated dissimilarly
from others. Now, if you don't find those to be
true -- or if you do find it has been true, then
the plaintiff has proven his initial case, and you
must then determine whether the plaintiff has also
satisfied his ultimate burden of proving
intentional discrimination by the defendants.
Now, the defendant has maintained certain things
to state that they had nondiscriminatory reasons,
and I went over those. And if true, nevertheless
the plaintiff can prevail on his claim if he shows
that these reasons are a mere pretext for
discrimination. To prove pretext, plaintiff must
show by a preponderance of the evidence that
defendants' reason is not worthy of belief or that
more likely than not, it is not a true reason or
the only true reason for the defendants' actions
and that plaintiff's condition, mental condition
was a determinative or motivating factor for
defendants' action. In other words, in order to
prevail on his claim, plaintiff must prove by a
preponderance of evidence that his mental
condition was a determinative factor in the
challenged treatment. A plaintiff may need not
prove that the mental condition was the employer's
sole or exclusive consideration, but that it made
a difference in deciding the adverse action. If
you find that the plaintiff has satisfied this
burden of proving that the defendants' reason is a
pretext, then you must return a verdict in favor
of the plaintiff. If you find that the plaintiff
has not satisfied his burden of proving that the
defendants' reason is a pretext, then you must
return a verdict for the defendants.
[Emphasis added.]
Consistent, then, with the theories posited during the trial, the jury was instructed on plaintiff's prima facie burden, the defendants' burden of production as to a legitimate nondiscriminatory reason for not hiring or rehiring plaintiff, i.e., the assault upon Ms. Gallagher, and plaintiff's burden to then show such reason was a pretext, and that the real reason, or at the least a determinative reason, was his then mental condition. For these considerations, plaintiff retained the
burden of proof.
But the jury was also instructed on what appears to be an
alternative theory, that is that the reason plaintiff was not
rehired was a combination of his psychiatric condition, which
caused the attack, and an unjustified fear of future episodes.
In this respect, the following jury instructions were given:
Now, the plaintiff contends that in certain
positions there was a dual motivation, not just
the attack on Dollie Gallagher but also his mental
status and that it was based upon an unreasonable
fear of Mr. Barbera and not based upon any medical
evidence. If you decide that the decision not to
hire Mr. Barbera was the product of a mixture of
legitimate and illegitimate motives, the burden is
then placed on the defendant to show by a
preponderance of evidence, and here is where the
defendant would have the burden, that it would
have made the same decision even if it had not
taken into account anything concerning his mental
condition or any fears of future action. In
assessing whether the mental condition played a
motivating part in the employment decision -- I
mean, if you asked the employer at the end of the
decision what his reasons were and if you had
received a truthful response, one of the reasons
would be that, well, because of the state of mind
of my other employees based upon his mental
condition, and the fear of any future incident
played a part in it. A refusal to select
handicapped individuals because of the preferences
of co-workers is not a valid basis for a
discriminatory employment reason, or unfounded or
unreasonable fears of co-employees is not an
exception to the obligation not to discriminate.
However, in this case the defendant states that
particularly in the case of the testimony from
Judge DiMartino, is that he alleges that, "While I
was concerned about the employees because of the
attack on Dollie Gallagher, I wouldn't have hired
him in any event, and that whatever his mental
condition was, I wouldn't have hired him because
of the attack, not because of the mental
condition." And that's [sic] things for you to
decide.
[Emphasis added.]
Special interrogatories were then submitted to the jury which
required it to consider the following:
1. a) Do you find a preponderance of the
evidence that plaintiff has proved that he applied
and possessed the adequate job experience and
education for any of the positions for which the
employer was seeking applicants?
If your answer is No, cease deliberations and
return your verdict for defendant.
If your answer is Yes, set forth those
positions for which you find that plaintiff
possessed the adequate job experience and
education.
Exhibit(s) #
Proceed to the next question but do not give
any further consideration to those positions, if
any, for which you found that plaintiff did not
possess the adequate job experience and education.
b) Do you find by a preponderance of the
evidence that plaintiff has proved that the
individuals directly involved in the hiring
process for any of the positions for which
plaintiff applied had knowledge of plaintiff's
mental illness?
If your answer is No, cease deliberations and
return your verdict for defendant.
If your answer is Yes, set forth those
positions for which you find that the individuals
directly involved in the hiring process had
knowledge of the plaintiff's mental illness.
Exhibit(s) #
Proceed to the next question but do not give
any further consideration to those positions for
which you found that the individuals directly
involved in the hiring process did not have
knowledge of the plaintiff's mental illness.
c) Do you find by a preponderance of the
evidence that plaintiff has proved that he was
treated dissimilarly from other applicants for any
of the positions for which plaintiff applied?
If your answer is No, cease deliberations and
return your verdict for defendant.
If your answer is Yes, set forth those
positions for which you find that plaintiff was
treated dissimilarly from other applicants.
Exhibit(s) #
Proceed to the next question but do not give
any further considerations [sic] to those
positions for which you found that plaintiff was
not treated dissimilarly from other applicants.
2. Do you find that defendant has articulated or
advanced a legitimate nondiscriminatory reason for
its decision not to hire the plaintiff for all of
the positions for which plaintiff applied?
If your answer is No, set forth those
positions for which you find that defendant has
not articulated or advanced a legitimate
nondisciminatory reason for its decision not to
hire the plaintiff.
If your answer is Yes, set forth those
positions for which you find that defendant has
articulated or advanced a legitimate
nondiscriminatory reason for its decision not to
hire plaintiff.
Exhibit(s) #
proceed to the next question.
3. Do you find by a preponderance of the
evidence, that plaintiff has proved that
defendant's articulated or advanced legitimate
nondiscriminatory reason was a pretext for
discrimination for any of the positions for which
plaintiff applied?
If your answer is No, proceed to the next
question.
If your answer is Yes, set forth those
positions for which you find that defendant's
articulated or advanced legitimate
nondiscriminatory reasons was a pretext for
discrimination.
Exhibit(s) #
cease deliberations and return your verdict
for plaintiff and skip to question #6 concerning
the issue of damages.
4. Do you find by a preponderance of the
evidence that plaintiff has proved that those
directly involved in the hiring process for any of
the positions for which plaintiff applied were
motivated by both plaintiff's mental illness and
because of a legitimate nondiscriminatory reason
in deciding not to hire plaintiff?
In response to these interrogatories, the jury answered yes
to numbers 1(a), (b) and (c) as to the four State positions for
which defendants' admitted rejecting plaintiff's applications
because of the assault. However, the jury answered interrogatory
2 yes, but interrogatories 3 and 4 no.
The essence of the jury's responses was that plaintiff had
established a prima facie case of discrimination based upon his
mental condition in connection with the four positions in which
defendant would have had contact with Ms. Gallagher, but that
there was a legitimate nondiscriminatory reason not to hire
plaintiff for those positions (the assault) and that that reason
was not a pretext. The jury also concluded that the decision not
to hire plaintiff for those positions was solely the product of
that nondiscriminatory reason, and not a product of both
plaintiff's mental illness and the assault. The issue of safety,
then, was not necessary for the resolution of the claims.
On appeal, plaintiff contends:
POINT I. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS ON THE ISSUE OF VIOLATION OF THE LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, AND SHOULD HAVE GRANTED SUMMARY
JUDGMENT TO PLAINTIFF FOR THE
DISCRIMINATORY DISCHARGE IN
VIOLATION OF THE LAD.
POINT II. THE COURT ERRED IN DISMISSING
PLAINTIFF'S WRONGFUL DISCHARGE
CLAIMS UNDER PIERCE AND THE NEW
JERSEY CONSTITUTION.
A. DEFENDANTS WRONGFULLY
DISCHARGED PLAINTIFF IN
VIOLATION OF CLEAR MANDATE OF
PUBLIC POLICY.
1. CONSTITUTIONAL MANDATE OF
PUBLIC POLICY.
A. N.J. CONSTITUTION ART. 1,
PARA. 1.
B. U.S. CONSTITUTION 5TH &
14TH AM.
N.J. CONSTITUTION ART. 1,
PARA. 3.
2. STATUTORY MANDATE OF PUBLIC
POLICY.
A. LAW AGAINST
DISCRIMINATION.
B. EQUAL EMPLOYMENT
OPPORTUNITY ACT.
C. FEDERAL STATUTES AND
POLICY.
3. JUDICIAL DECISIONS.
POINT III. THE COURT ERRED IN DENYING SUMMARY
JUDGMENT TO PLAINTIFF FOR
DEPRIVATION OF HIS CONSTITUTIONAL
RIGHTS AND VIOLATION OF IMPLIED
CONTRACT.
POINT IV. THE COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO DEFENDANTS ON THE ISSUE
OF PUNITIVE DAMAGES.
POINT V. THE COURT ERRED IN ITS SUA SPONTE DISMISSAL OF ALL CLAIMS AGAINST THE DEFENDANTS, ROBERT LIPSCHER AND I.V. DI MARTINO WITHOUT FACTUAL OR
LEGAL BASIS.
POINT VI. THE TRIAL COURT ERRED IN REFUSING
TO CHARGE JURY ON ISSUE OF SPOILATION OF EVIDENCE AND DIRECTED VERDICT SHOULD HAVE BEEN GRANTED TO
PLAINTIFF.
POINT VII. PLAINTIFF IS ENTITLED TO JUDGMENT
N.O.V. SINCE HE ESTABLISHED A PRIMA
FACIE CASE AND DEFENDANTS DID NOT
ARTICULATE A LEGITIMATE NON-DISCRIMINATORY REASON AT THE TIME
OF THE DISSIMILAR TREATMENT.
POINT VIII. THE TRIAL COURT ERRED IN ITS
INSTRUCTIONS TO THE JURY BY
REFUSING TO CHARGE THAT ONCE
PLAINTIFF ESTABLISHES A PRIMA FACIE
CASE, THE BURDEN OF PROOF SHIFTS TO
DEFENDANTS WHEN IT PRESENTS A
SAFETY DEFENSE.
POINT IX. PLAINTIFF IS ENTITLED TO A JUDGMENT
N.O.V. DUE TO FAILURE OF DEFENDANTS
TO MEET THEIR BURDENS OF PERSUASION
AFTER PLAINTIFF PROVED A PRIMA
FACIE CASE.
We have considered these contentions in light of the entire record, including both what was presented to the judge in connection with the various motions for summary judgment and the trial record, in addition to the applicable law. Although neither plaintiff nor defendants pay particular attention to the impact of the jury verdict on plaintiff's LAD failure to rehire/hire claim and the jury's answers to the special interrogatories, we are convinced the critical factors decided by the jury were the same as those which would have been presented had plaintiff been able to proceed on all of his other substantive claims, that is to say counts one, three and four. At the core of all of plaintiff's substantive claims is his
contention that he was fired and then not rehired because of a
temporary psychiatric condition and because of a medically
unfounded fear, on the part of defendants, of safety for others.
The jury obviously disagreed, concluding that the employment
actions were the product of the assault.
That much being said, we are convinced counts IV and V are
clearly without merit and warrant no further opinion. R. 2:11-3(e)(1)(E). As to point VIII, concerning the plaintiff's
proffered safety defense charge, we are at somewhat of a
disadvantage in considering the judge's jury charge in that while
there apparently was a charge conference at which plaintiff's
requested charges were considered, there seems to be no record of
that conference. There is some mention on the record by
plaintiff's counsel concerning the safety defense charge. But
it seems to us that the trial judge included this aspect of
plaintiff's position in the context of his "mixed-motive" charge,
in which he did shift the burden of proof to the defendants, as
would occur where the defense is safety. See Jansen v. Food
Circus Supermarkets, Inc.,
110 N.J. 363, 383 (1988) ("[w]hen
asserting the safety defense, the employer must establish with a
reasonable degree of certainty that it reasonably arrived at the
opinion that the employee's handicap presented a materially
enhanced risk of substantial harm in the workplace."); N.J.A.C.
13:13-2.8(a)2, 3.
Quite simply, the jury determined it was unnecessary to
reach the issue of a safety defense because it concluded the
assault itself constituted a legitimate nondiscriminatory reason
for defendants' actions which plaintiff had not demonstrated were
a pretext. We are convinced these findings, more than amply
supported by the record, resolve all of the substantive issues
raised by plaintiff in points I, II, III, VII and IX. At the
heart of all of these contentions, including the Woolley
contention (see Erickson v. Marsh & McLennan Co.,
117 N.J. 539,
561-62 (1990)), is plaintiff's basic premise that defendants'
actions were taken for unfounded safety concerns for which there
exists no medical validity.
In so saying, we acknowledge that the summary judgment as to
counts one and three relating to plaintiff's termination, does
appear to have been granted on the basis of a safety defense.
Had the jury verdict been otherwise, plaintiff may well be
correct that summary judgment on that basis was erroneous.See footnote 5 But
the jury found that defendants' actions were motivated solely by
virtue of plaintiff's conduct, the assault upon Ms. Gallagher.
For the following reasons, we are, therefore, convinced LAD, or
any other of plaintiff's related causes of action, does not
provide plaintiff with relief under these circumstances.
We do not question that plaintiff's April 1987 psychotic episode qualified as a handicap under the LAD. The statutory definition of handicap includes "any mental, psychological or developmental disability 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." N.J.S.A. 10:5-5q. The act protects anyone who "is or has been at any time handicapped. . . ." N.J.S.A. 10:5-4.1. Thus, it protects one whose handicap has disappeared by the time of the alleged discrimination.
The act prohibits discrimination or "any unlawful employment practice" against a handicapped person, "unless the nature and extent of the handicap reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1. The act also guarantees to an employer the right to terminate anyone "who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment. . . ." N.J.S.A. 10:5-2.1.
But critically, an employer may discriminate "on the basis of competence, performance, conduct or any other reasonable standards. . . ." N.J.S.A. 10:5-2.1 (emphasis added). Thus, by its express language, LAD does not prevent adverse employment
treatment premised upon the employee's, or prospective
employee's, conduct. Cf. A.B.C. v. XYZ Corp.,
282 N.J. Super. 494, 509 (App. Div. 1995) (Petrella, P.J.A.D., concurring) ("the
LAD provides that nothing in that act `shall be construed . . .
to preclude discrimination among individuals on the basis of
. . . conduct or any other reasonable standards. . . .' N.J.S.A.
10:5-2.1. Here, any `discrimination' by defendants with respect
to plaintiff was on the basis of plaintiff's own admitted conduct
[a psychosexual disorder causing public exposure]. Requiring an
employee to refrain from criminal conduct or criminal-type
conduct, whether or not criminal proceedings are instituted or
completed, and even though the employee was never convicted, is a
reasonable standard.").
It is well established that to assert a LAD claim, the
plaintiff must first present a prima facie case. McDonnell
Douglas Corp. v. Green,
411 U.S. 792,
93 S. Ct 1817,
36 L. Ed.2d 688 (1973); Andersen v. Exxon Co., supra, 89 N.J. at 492. To
establish the elements of a prima facie case in a failure to
hire/rehire claim, the plaintiff must demonstrate by a
preponderance of the evidence that he or she:
(1) belongs to a protected class, (2) applied and
was qualified for the position . . ., (3) was
rejected despite adequate qualifications, and
(4) after rejection the position remained open and
the employer continued to seek applications for
persons of plaintiff's qualifications.
[Andersen, 89 N.J. at 492.]
To establish the elements of a prima facie discriminatory discharge, the plaintiff employee must prove (1) that he or she
was handicapped, (2) that he or she was performing the job at a
level acceptable to the employer, (3) that he or she was fired,
and (4) that the employer sought to fill the job after he or she
left. Jansen v. Food Circus Supermarkets, Inc., supra, 110 N.J.
at 382. And see Maiorino v. Schering-Plough Corp.,
302 N.J.
Super. 323, 346-48 (App. Div. 1997); Melick v. Township of
Oxford,
294 N.J. Super. 386, 395 (App. Div. 1996).
Defendants do not deny that plaintiff presented a prima
facie case to the jury in connection with the rehire claim, just
as he did to the motion judge in connection with the termination
claim. The critical focus in both contexts was upon defendants'
defense.
The employer's burden in meeting a prima facie case "varies
depending on whether the employer seeks to establish the
reasonableness of the otherwise discriminatory act or advances a
non-discriminatory reason for the employee's discharge." Jansen,
supra, 110 N.J. at 382. In the first category, i.e., a
discriminatory reason, is the safety defense which we have
previously averred to. In the latter category are competence,
performance, and conduct. N.J.S.A. 10:5-2.1. Here defendants
embrace the "conduct" exception, asserting that an employer
should be permitted to fire any employee, even if handicapped,
who assaults a co-worker.
An employer's burden in showing a legitimate, non-discriminatory reason is one of production, not of proof.
Jansen, supra, 110 N.J. at 382. Once the employer does
articulate such a reason, the burden shifts to the employee to
prove by a preponderance of the evidence that the alleged reason
was merely a pretext for discrimination. Id. at 382-83; Melick,
supra, 294 N.J. Super. at 394. In this context, the ultimate
burden of persuasion remains with the employee. Jansen, supra,
110 N.J. at 383.See footnote 6 As we have said, the jury concluded that
defendants' employment actions were the products of a
nondiscriminatory reason, the assault. Thus, plaintiff did not
sustain his burden of proof.
Plaintiff, however, argues:
The alleged non-discriminatory reason [the assault] flies in the face of reason. It is undisputed that the attack was precipitated by and a manifestation of the psychiatric condition. To allow the act to be separated from the condition is blatantly unfair, and compounds the discrimination already visited upon the plaintiff by the discharge itself. It is artificial and simplistic, and as unreasonable as attempting to separate an epileptic from the manifestations of a seizure, or a heart attack victim from events that occur after a loss of consciousness.
Further, he contends that at no time was he ever told that he
"was being treat[ed] dissimilarly because of the incident with
Ms. Gallagher in 1987. . . ." He claims "[i]t was only at trial,
in the closing argument by defendants' counsel, that this
occurred."
As to the claim of lack of notice, we cannot conceive that
plaintiff was not aware that his employment status, or lack
thereof, was related to the assault. Indeed, that is precisely
what he was told by Judge DiMartino in his May 4, 1987 letter.
Moreover, plaintiff certainly knew this was to be defendants'
position at trial, despite the apparent alternative safety
defense relied upon in connection with the earlier summary
judgment motions. More to the point, a LAD cause of action does
not focus upon what plaintiff thought, but rather the actual
motivation of the employer. And here the jury concluded that the
motivating factor was plaintiff's conduct.
The essence of this appeal is that it seems medically
undisputed that the assault was precipitated by plaintiff's then
mental condition. The real issue, therefore, is whether an
employer can discriminately treat an employee for conduct caused
by a protected condition or disability. More particularly, may
an employee, considered to be handicapped or disabled at the
critical time, and who has assaulted a co-employee or supervisor,
be fired without LAD or other legal repercussions? Neither party
has cited any helpful authority beyond the language of LAD and
Judge Petrella's concurring opinion in A.B.C. V. XYZ Corp.,
supra, 282 N.J. Super. at 509. As we have indicated, in his
concurrence, Judge Petrella expressed the view that conduct that
is criminal or quasi-criminal in nature, despite its connection
with a protected condition, need not be accorded special
treatment under the LAD. And see Clowes v. Terminex Int'l,
109 N.J. 575, 597-600 (1988) ("[g]iven [alcoholic] complainant's
sales records, it is apparent that he did not sustain his burden
of proving that the stated reasons for his discharge, namely,
unsatisfactory sales performance, were pretextual."); Matter of
Jackson, supra,
294 N.J. Super. 233 (drug addicted firefighter
reasonably discharged after testing positive a second time for
cocaine in a random drug test).
The principle invoked by Judge Petrella is recognized by the
overwhelming majority of federal courts that have interpreted, in
similar contexts, the Americans With Disabilities Act, 42 U.S.C.A
§ 12101 to § 12213, and the Rehabilitation Act,
29 U.S.C.A.
§701
to §797b. It is the almost universal view that the federal laws
are intended to prevent discrimination premised upon a handicap
or disability, not upon egregious or criminal conduct even if
such conduct results from the handicap or disability. See, e.g.,
Harris v. Polk City, Iowa,
103 F.3d 696, 697 (8th Cir. 1996) (the
ADA did not prevent job rejection based upon shoplifting conduct
caused by applicant's underlying mental illness - "the ADA does
not require employers to `overlook infractions of [the] law'
. . . [w]e agree with the courts of appeal that recognize an
employer may hold disabled employees to the same standard of law-abiding conduct as all other employees." (citing Collings v.
Longview Fibre Co.,
63 F.3d 828, 832-33 (9th Cir. 1995), cert.
denied, ____ U.S. ____,
116 S. Ct. 711,
133 L. Ed.2d 666
(1996)); Williams v. Widnall,
79 F.3d 1003, 1007 (10th Cir. 1996)
(ADA does not require employer to accept egregious behavior from
a disabled employee when the same behavior by nondisabled
employee would require discharge); Maddox v. University of Tenn.,
62 F.3d 843, 847 (6th Cir. 1995) (no ADA violation to discharge
7disabled employee for misconduct for which non-disabled employee could lawfully be discharged); Leary v. Dalton, 58 F.3d 748, 753 (1st Cir. 1995) (Rehabilitation Act does not protect employees from consequences of their own misconduct, even if caused by a disability); Little v. Federal Bureau of Investigation, 1 F.3d 255, 259 (4th Cir. 1993) (clear that employer may discharge employee for egregious misconduct irrespective of any disability); Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1183 (6th Cir. 1993) (Nelson, D. concurring) ("[t]he plaintiff was clearly suspended because of his intolerable conduct, and not solely because of his mental condition."); Newman v. Chevron, U.S.A., ____ F. Supp. ____, 1 997 WL 626611 at 6 (S.D. Tex. 1997); Den Hartog v. Wasatch Academy, 909 F. Supp. 1393, 1402 (D. Utah 1995), aff'd, ____ F.3d ____, 1 997 WL 688386 (10th Cir. 1997) ("an employee may not `bootstrap his disease [bipolar disorder] into the line of causation' by showing that the misconduct [rude and threatening behavior] relied on by the employer was caused by the disability."); Palmer v. Circuit Court of Cook County, 905 F. Supp. 499, 508, 509 (N.D.Ill 1995), aff'd, 117 F.3d 351 (7th Cir. 1997) ("[c]ourts have consistently held that one who displays abusive and threatening conduct towards co-workers [despite an underlying causative handicap or disability] is not an otherwise `qualified individual.' The essential functions of any job include avoidance of violent behavior. . . ."); Adams v. Alderson, 723 F. Supp. 1531, 1532 (D.D.C. 1989), aff'd sub nom, Adams v. G.S.A., 1 990 WL 45737 (D.C. Cir. 1990) ("[o]ne who [as a result of a psychological condition triggered by job stress] is
unable to refrain from doing physical violence to the person of a
supervisor, no matter how unfair he believes the supervision to
be or how provocative its manner, is simply not otherwise
qualified for employment."). Accord Pesterfield v. Tennessee
Valley Auth.,
941 F.2d 437, 442 (6th Cir. 1991) (an employee with
a psychological condition which caused negative reactions to
supervisors' criticism could be terminated); Mazzarella v. United
States Postal Service,
849 F. Supp. 89, 97 (D. Mass. 1994)
(employee may be fired for throwing office furniture and
equipment during an incident triggered by underlying
psychological condition - "[t]hat the plaintiff's misconduct may
have been a product of his psychological disorder does not
justify an inference that he was fired because of his illness,
rather than because of the misconduct."); Carrozza v. Howard
County, Md.,
847 F. Supp. 365, 367-68 (D. Md. 1994), aff'd,
45 F.3d 425 (4th Cir. 1995) (termination based upon insubordinate
behavior and outbursts towards supervisors was not violative of
the Rehabilitation Act even though such conduct may have been
caused by plaintiff's bi-polar disorder.). And see Boldini v.
Postmaster General,
928 F. Supp. 125 (D.N.H. 1995).
Only the Second Circuit has adopted the view that misconduct
caused by a disability may be protected. See, e.g., Teahan v.
Metro-North Commuter R.R. Co.,
951 F.2d 511, 516-17 (2nd Cir.
1991) (employer may not fire for absenteeism that was caused by
employee's alcoholism), cert. denied,
506 U.S. 815,
113 S. Ct. 54,
121 L. Ed.2d 24 (1992); Husowitz v. Runyon,
942 F. Supp. 822, 832 (E.D.N.Y. 1996) (employer may not suspend for obnoxious
and threatening remarks to supervisor that were the direct result
of employee's bipolar disorder); Hogarth v. Thornbush,
833 F.
Supp. 1077, 1085 (S.D.N.Y. 1993) ("`an employer `relies' on a
handicap when it justifies termination based on conduct caused by
the handicap. An employer does not `rely' on a handicap when it
can point to behavior that is not causally related to that
handicap.'" (citing Teahan v. Metro-North Commuter R.R. Co.,
supra, 951 F.
2d at 516)).
We see no reason why we should reject the federal majority
view that employers subject to laws protecting the handicapped
and disabled nonetheless should be able to take appropriate
action on account of egregious or criminal conduct of an
employee, regardless or whether the employee's disability
contributed to the conduct. Den Hartog v. Wasatch Academy, supra
909 F. Supp. at 1402. Certainly there is no indication in LAD
that would require us to adopt the minority federal view.
Neither do we discern any contrary judicial authority in
this State. Plaintiff's reliance upon such cases as Jansen v.
Food Circus Supermarkets, Inc., supra, 110 N.J. at 363, and
Panettieri v. C. V. Hill Refrigeration, supra, 159 N.J. Super. at
472, is misplaced. In Jansen, the plaintiff was a meatcutter who
was fired after he suffered an on-the-job seizure in which he
stopped cutting steaks "and stood staring, with the knife in his
right hand." Id. at 369. Defendant-employer allowed plaintiff
to return to work after his doctor certified that these seizures
had been under control on medication, and that he had increased
the medication to avoid recurrences of the knife episode. But
when plaintiff's co-workers complained that they feared for their
safety, defendant suspended plaintiff pending examination by
defendant's doctors who concluded that plaintiff's continued
employment as a meatcutter presented a danger. Accordingly,
defendant terminated plaintiff. Plaintiff responded with reports
from three doctors attesting to his ability to safely return to
work. When defendant refused to reinstate him, plaintiff filed
an LAD action. The trial court granted summary judgment to the
employer and we affirmed, concluding that defendant had
"reasonably arrived at" its decision. The Supreme Court
disagreed, noting that the probability of a seizure could not be
equated with the probability that the seizure would result in
harm to plaintiff or others. Id. at 377. To justify termination
under the safety defense posited by the employer, the employer
must adduce expert testimony that a seizure would be likely to
cause harm. Ibid.
In Panettieri v. C.V. Hill Refrigeration, supra, 159 N.J.
Super. at 492, the plaintiff was terminated after suffering a
heart attack, even after his doctor had cleared him to return.
We concluded that evidence that the treating physician had
indicated he could return to work established an inference of
discrimination based upon his heart attack when he was not
permitted to return to that job. We emphasized that an
employer's fear that re-employment will increase the risk of
recurrence is not a legitimate basis under LAD for the employment
decision. Ibid. See Andersen v. Exxon Co., Supra, 89 N.J. at
497-98.
In these cases, the evidence was sufficient to support a
conclusion that the employee was adversely treated because of his
or her disability - the epileptic in Jansen for his seizures, and
the heart attack victim in Panettieri for his heart attack. In
those situations where the reason for the discriminatory
treatment is the disability itself, the employer's defense is
safety, triggering the shifting of the burden of proof upon the
employer to establish the medical basis for such concern - fear
and speculation will not do. Jansen, supra, 110 N.J. at 374;
Andersen, supra, 89 N.J. at 497; Panettieri, supra, 159 N.J.
Super. at 492-93.
This rationale, however, is not applicable here because
plaintiff was terminated, and thereafter not rehired (at least
for the four positions in which he would have had contact with
Ms. Gallagher) because of the assault. We are in line with the
federal authority that laws protecting the handicapped from
employment discrimination are not intended to protect against
crime or egregious conduct which, if committed by any other
employee, would have warranted the adverse employment decision.
That is what the jury decided and we are convinced that
determination is dispositive of plaintiff's substantive claims,
entirely aside from the motion judge's rationale in dismissing
all but the hire/rehire substantive causes of action.
As to plaintiff's due process and implied contract claim raised in point III of his brief and premised upon R. 1:33, they are meritless. R. 2:11-3(e)(1)(E). R. 1:33-4(e) provides in
pertinent part that "[s]ubject to uniform minimum standards and
conditions promulgated by the Administrative Director, the
Assignment Judge may appoint and discharge judicial support
personnel within the vicinage" as he shall deem necessary.
Positions created under R. 1:33 are, then, "at will" and thus,
plaintiff was entitled to neither notice nor a hearing prior to
termination. New Jersey District Court Assoc., Inc. v. New
Jersey Supreme Court,
205 N.J. Super. 582, 592 (Law Div. 1985),
aff'd o.b.,
208 N.J. Super. 527 (App. Div.), certif. denied,
104 N.J. 386 (1986), cert. denied,
479 U.S. 1086,
107 S. Ct. 1289,
94 L. Ed.2d 146 (1987). As the motion judge said here:
While [R. 1:33-4(e)] . . . [refers to minimum
standards and conditions], it doesn't necessarily
mandate that the hiring and firing be set forth in
a set of written rules and procedures. So I don't
think that -- I don't find that to be the intent
of the rule itself.
The fact that "uniform minimum standards and conditions," at
least vis-a-vis terminations, have, apparently, never been
promulgated certainly does not alter plaintiff's at-will status.
And we find no legal support for the notion that the absence of
such rules constitutes "deprivation of plaintiff's constitutional
due process rights. . . ." We agree with the motion judge's
ruling that "[f]ormal procedures are not required for the
termination of a judicial employee so long as the determination
. . . was reasonable and did not violate the Law Against
Discrimination."
Finally, we briefly address plaintiff's contention in point
VI that the judge erred in not giving an adverse inference charge
based upon his claim of spoilation of evidence. At the outset,
we note that the record does not contain the trial judge's ruling
on the charge request. Apparently it occurred in chambers during
the charge conference and was not thereafter set forth in the
record. But in any event, we see no basis for such a charge.
Plaintiff sought an adverse inference charge premised upon
the unavailability of certain employment recruitment records. As
set forth in State Commissioner of Transp. v. Council, Div. of
Resource Dev.,
60 N.J. 199, 202 (1972):
[T]he behavior of a litigant with respect to
relevant evidence may permit an inference that his
behavior was prompted by a conscious appreciation
that the evidence would or might be hurtful to his
position. . . . A conscious awareness of the
existence of a dispute with another and a
conscious awareness that an act done will destroy
evidence or access to evidence are prerequisite
for a call upon that doctrine. If the doctrine is
invoked, it permits an inference but does not
require one to be drawn, depending upon the common
sense of a situation. It does not shift the
burden of proof, and usually will not relieve the
party holding that burden from the obligation of
producing some evidence to support his claim.
[Emphasis added.]
Spoilation of evidence occurs when, in a prospective civil action, evidence necessary to the deposition of the matter willfully is destroyed with the intent of depriving a party of its use in litigation. Hirsch v. General Motors Corp., 266 N.J. Super. 222, 234 (Law Div. 1993). And see Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 521 (1995); Maciag v. Strato Medical Corp., 274 N.J. Super. 447, 463 (App. Div. 1994); Nerney v. Garden State Hosp., 229 N.J. Super. 37, 40 (App. Div.
1988).
As we have said, at trial plaintiff claimed LAD
discrimination for twenty-nine positions. The bulk of the
positions were with the AOC and State Judiciary. Prior to trial,
the State defendants produced only four complete application
files, and after trial began, produced three additional files.
The rest, at least those in the possession of the State
defendants, apparently had been purged. There is no evidence as
to the county level files except that it seems undisputed that
they were in the possession of the county officials. Almost all
of the positions at issue were applied for by plaintiff after his
complaint was filed. Thus the complaint made no mention of them.
As to the files that, apparently, had been purged, it is of
note that although the attack giving rise to plaintiff's
termination occurred on April 6, 1987, and the complaint was
filed April 5, 1989, plaintiff did not serve a notice in lieu of
subpoena for employment files until April 9, 1992. The only
other demand for document production for application files was
served two days before the trial date. But it was established at
trial that the AOC had a policy of purging their recruitment
files within three years.
Under these circumstances, particularly considering the
timing of plaintiff's discovery requests, made three and six
years after the filing of the complaint, we certainly can not
fault the judge for refusing to give an adverse inference
spoilation charge. There was no evidence to suggest the State
defendants had willfully destroyed the files in order to preclude
plaintiff's access to them for use in the litigation.
Affirmed.
Footnote: 1As referred to herein, the State defendants are I.V. DiMartino, Robert D. Lipscher, and the Administrative Office of the Courts. Footnote: 2Immediately following the assault, plaintiff was admitted to the Our Lady of Lourdes Medical Center in Camden with an admitting diagnosis of being "grossly psychotic." He was subsequently transferred to the Veterans' Administration Hospital in Philadelphia where he was treated until discharge on May 11, 1987. The discharge summary indicated improvement with
medication and group therapy, but that he was still delusional and showed poor insight. The physician who treated plaintiff following his discharge opined that the April 6, 1987 incident was "an acute psychotic disorder" or a "schizophreniform disorder" (a temporary mental disorder manifesting signs and symptoms of schizophrenia). By June 15, 1987, the doctor considered plaintiff ready to return to work; he was no longer in need of medication or suffering from any conditions that would impair his job performance. It was the doctor's opinion that the psychotic episode was due more to job stress than to "inherent psychotic problems," and he further believed, as of March 1988, that plaintiff was no longer a danger to anyone "now or in the future." Defendant's physician, who had examined plaintiff in May 1988 and again in October 1992, reached a similar conclusion, that is that plaintiff was "mentally well," was capable of working, with no indication that he was "likely to break down under stress or spontaneously" or be a danger to himself and others. Footnote: 3The State defendants assert in their brief that in 1992, plaintiff was hired for a position with the Camden County Welfare Office. Footnote: 4The County of Camden and the Camden County Board of Freeholders were also named as defendants. Summary judgments dismissing the claims as to these county defendants were ultimately obtained; plaintiff does not appear to raise any issues as to the county defendants in this appeal. Footnote: 5Where the defense to a LAD claim is safety, "the employer must establish with a reasonable degree of certainty that it reasonably arrived at the opinion that the employee's handicap presented a materially enhanced risk of substantial harm in the workplace." Jansen, supra, 110 N.J. at 383. The employer may not assume that harm will result, nor may it act on the fears and prejudices of other employees. Jansen, supra, 110 N.J. at 377. See also Andersen v. Exxon Co., 89 N.J. 483, 497 (1982) ("[u]ndifferentiated fear and generalities will not suffice"); Panettieri v. C.V. Hill Refrigeration, 159 N.J. Super. 472, 492-93 (App. Div. 1978). When relying upon a safety defense, an employer must make "an individualized assessment of the safety risk," which must include objective medical evidence as well as "relevant records such as the employee's work and medical histories." Jansen, supra, 110 N.J. at 379. See Matter of Jackson, 294 N.J. Super. 233, 236 (App. Div. 1996), certif. denied, 149 N.J. 141 (1997). Footnote: 6Plaintiff is quite correct that if an employer defends on the basis of the reasonableness of an otherwise discriminatory discharge - for example, that the handicap or disability created a risk of harm - the burden of proof would shift to the employer. Jansen, supra, 110 N.J. at 383. Simply put, this case, as resolved by the jury, does not present a discriminatory action.