Beneduci v. Graham Curtin P.A., ___ N.J. Super. ___ (App. Div. 2023); Guzman v. M. Texeira Int’l, Inc., ___ N.J. Super. ___ (App. Div. 2023). The Appellate Division issued two opinions in cases under the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”) this week. One went in favor of the plaintiff, while defendants prevailed in the other.
Beneduci was an opinion by Chief Judge Sumners. As he described the issue, it “present[ed] a question of first impression regarding whether a claim can be made under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, where (1) an employer merges with another employer, (2) the employee does not apply for a position with the new employer, but (3) the employee contends that while all other employees were offered employment with the new employer, the employer did not extend the same offer, for reasons proscribed by the LAD.” The case arose out of the merger of Graham Curtin, P.A. into another law firm, McElroy Deutsch Mulvaney & Carpenter, LLC.
Plaintiff had been a bookkeeper at Graham Curtin for almost thirty years when she took a disability leave, at age 66, in order to have knee surgery. That leave ran from March 2017-May 2017. About a month later, she took another disability leave, due to problems with other knee that led to knee replacement surgery in January 2018.
While plaintiff was recovering from that surgery, Graham Curtin was preparing to close shop and join McElroy. The firms agreed that, except for certain staff who would join a new firm being formed by certain Graham Curtin attorneys, those staff members at Graham Curtin who were recommended to McElroy by Graham Curtin’s managing partner would be hired at McElroy. Plaintiff and a receptionist who was voluntarily retiring were the only Graham Curtin staff whom its managing partner did not recommend for employment at McElroy.
In December 2017, the managing partner told plaintiff about the impending merger, and that a McElroy partner who had previously been at Graham Curtin had said that plaintiff’s employment was in a “precarious situation.” Plaintiff said, however, that she planned to return from her disability leave in March or April 2018. She confirmed that in a February 15, 2018 e-mail to Graham Curtin’s managing partner.
Following that e-mail message, the managing partner invited plaintiff to lunch and tendered a severance package for terminating her employment. Plaintiff declined that offer and filed suit against Graham Curtin, the managing partner, and McElroy under the LAD. She did not apply to McElroy for employment.
The Law Division granted summary judgment to defendants, holding that Graham Curtin and its managing partner had no duty to get her a job with McElory and that McElroy owed no duty to hire her, noting that she never applied for a job there. Plaintiff appealed, and tthe Appellate Division reversed, applying de novo review.
Chief Judge Sumners found persuasive “the reasoning of the Maryland Court of Special Appeals in Hawkins v. Rockville Printing & Graphics, Inc., 983 A.2d 531 (Md. Ct. Spec. App. 2009), in which the court reversed summary judgment dismissal of the plaintiff’s complaint, which alleged that he ‘was terminated while on disability leave and the employer closed but gave all the other employees the opportunity for new employment with the successor company yet . . . the plaintiff was singled-out and refused re-hire along with his nondisabled coworkers.'” There were disputed facts that required reversal of summary judgment.
For example, the Graham Curtin managing partner had testified at deposition that plaintiff’s disability leave “played a factor” in his decision not to try to get her a job at McElroy, since she “hadn’t worked for us you know approaching a year by the time the move was made. So, you know, finding a position that didn’t exist for somebody that hadn’t worked for us for a year was not at the top of my agenda.” Chief Judge Sumners said that could “mean that Beneduci’s disability was a factor as to why she was not hired by McElroy.
Additionally, there was a fact dispute between plaintiff, who said she told the managing partner that she wanted to work at McElroy after her disability leave ended, and the managing partner, who denied that. “There are also conflicting facts with respect to the merger’s process in retaining Graham Curtin’s staff; the authority McElroy conveyed to [the Graham Curtin managing partner] to hire Graham Curtin staff; McElroy’s knowledge of Beneduci and her disability; and the reason Beneduci was not employed at McElroy because of her disability leave status.” Recall the comment of the McElroy partner who was formerly at Graham Curtin that plaintiff’s potential employment at McElory was in a “precarious situation.”
The fact-intensive nature of what was left to be decided led the panel to reverse the summary judgment to all of the defendants. Remanding the case for further proceedings, Chief Judge Sumners said that the Law Division “did not address the specifics of Beneduci’s claims for wrongful termination, retaliatory termination, and aiding and abetting harassment based on age, disability, and use of disability leave. Consequently, we do not either.”
Guzman was an appeal by plaintiff from a decision of the Law Division to grant dismissal at the threshold, under Rule 4:6-2(e), for failure to state a claim. Plaintiff claimed that he had been terminated in violation of the LAD “based on a perceived disability.” That perceived disability was alleged to be the fact that he was “suffering from COVID-19.” The Appellate Division affirmed the dismissal in an opinion by Judge Gummer that applied de novo review.
Judge Gummer observed that “[a]n employee perceived to have a disability is protected under the AD to the same extent as someone who is disabled. Grande v. Saint Clare’s Health Sys., 230 N.J. 1, 8 (2017). ‘LAD claims based upon a perceived disability still require ‘a perceived characteristic that, if genuine, would qualify a person for the protections of the LAD.’ Dickson v. Cmty. Bus Lines, Inc. 458 N.J. Super. 522, 532 (App. Div. 2019) (quoting Cowher v. Carson & Roberts, 425 N.J. Super. 285, 296 (App. Div. 2012)).” Since plaintiff claimed a perceived physical disability, Judge Gummer turned to the elements of such a claim. “For a physical disability claim under the LAD, a plaintiff must show he or she is: ‘(1) suffering from physical disability, infirmity, malformation or disfigurement (2) which is caused by bodily injury, birth defect or illness including epilepsy.”
But “[n]ot every illness will constitute a disability under the LAD. Indeed, plaintiff concedes ‘not ever[y] person who contracts COVID-19 will meet the definition of ‘[disabled]’ set forth in the LAD’.” Applying “the Supreme Court’s directive [in Andersen v. Exxon Co., 89 N.J. 483, 496 (1982)] that the LAD ‘must be sensibly and practically applied . . . [and] construed ‘fairly and justly with due regard to the interests of all parties,'” Judge Gummer upheld the dismissal of this case and proceeded to explain how the facts supported that result:
“On July 23, 2020, plaintiff felt ill in that he felt ‘cold, clammy, and weak.’ He was able to report to work and stay until the end of the day. The next day, plaintiff was able to go to a free clinic to obtain a COVID-19 test. Plaintiff did not allege he had gone to a hospital or a doctor’s office or that he had otherwise sought medical attention or treatment. Some unspecified time before he was terminated, plaintiff reported to Teixeira he ‘was feeling better.’ In fact, he was feeling well enough that he felt able to and offered to return to work. He was terminated after he had reported to Teixeira his condition had improved and he was feeling well enough to work. Those facts as pleaded by plaintiff are not sufficient to show he qualifies as an individual with a disability, or who is perceived as having a disability, as that has been defined by statute.”
Accordingly, the dismissal of the case was affirmed. That dismissal was with prejudice, since after the Law Division had dismissed the original complaint without prejudice and plaintiff filed an amended complaint, the Law Division granted a defense motion to dismiss that pleading too, this time with prejudice.