RICHARD BAKER VS. CAMDEN COUNTY HIGHWAY DEPARTMENT (L-4146-14, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1482-17T3
RICHARD BAKER,
Plaintiff-Appellant,
v.
CAMDEN COUNTY
HIGHWAY DEPARTMENT,
Defendant-Respondent.
________________________________
Submitted October 31, 2018 – Decided November 8, 2018
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-4146-14.
Costello & Mains, LLC, attorneys for appellant
(Deborah L. Mains, on the brief).
Christopher A. Orlando, Camden County Counsel,
attorney for respondent (Anne E. Walters, Assistant
County Counsel, on the brief).
PER CURIAM
Plaintiff Richard Baker appeals from a November 8, 2017 order denying
reconsideration of the summary judgment dismissal of his complaint, pursuant
to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,
against defendant Camden County Highway Department. We affirm.
The following facts are taken from the record. Plaintiff has been
employed by defendant since 2007. He holds a commercial driver's license
(CDL) and is authorized to operate equipment. On December 7, 2012, plaintiff
struck his head on an I-beam inside a supply warehouse and fell down a flight
of stairs, injuring himself. As a result, plaintiff was absent from work on
medical leave from the date of the accident until September 2013. During this
time plaintiff collected workers' compensation.
Plaintiff was medically cleared to return to work in September 2013.
When plaintiff returned to work, he claimed he was discriminated against
because he had availed himself of workers' compensation benefits. He claimed
he was singled out by his supervisor for verbal abuse, barred from entering the
supply warehouse, and made to stand outside the building, ring a bell, and
request the items he needed.
Plaintiff claimed he was not permitted to return to his prior position inside
the highway department yard, but made to perform work "on the road," including
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mowing and trimming. Plaintiff alleged his supervisor verbally harassed him,
accused him of intentionally injuring himself, and being a "drug addict" for
taking pain medication. Plaintiff complained about his supervisor's conduct and
sought a transfer, but it was denied.
On August 7, 2013, plaintiff and eight coworkers were randomly selected
to undergo drug testing pursuant to defendant's policy. The drug tests are
administered by an independent third-party, which utilizes software to randomly
select employees for testing. If an employee tests positive for an illicit
substance, the medical testing provider contacts the employee to afford the
employee an opportunity to provide a list of medications, which may have had
an effect on the test result. Plaintiff's drug test was performed on October 21,
2013, and revealed he tested positive for amphetamines. Pursuant to defendant's
policy, plaintiff was notified of the positive result. On October 23, 2013, he
informed the testing facility he was taking Nexium, Sudafed, Motrin, and a nasal
spray. This information was reviewed by the testing facility and determined to
be unavailing. Therefore, on October 25, 2013, the testing facility notified
defendant of the positive test for amphetamines.
On October 29, 2013, defendant served plaintiff with a preliminary notice
of discipline, charging him with: conduct unbecoming of a public employee,
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violation of federal regulations concerning drug and alcohol use, and violation
of a Camden County policy. The notice advised plaintiff of his right to seek a
departmental hearing however, plaintiff, who was represented by an attorney,
did not seek a hearing. Instead, on January 27, 2014, plaintiff entered into a
settlement agreement whereby he agreed to accept a five-month suspension and
complete eight substance abuse educational sessions.
Plaintiff filed a complaint, which alleged defendant discriminated against
him based upon a disability, perception of disability, and retaliation.
Specifically, plaintiff alleged defendant discriminated against him for availing
himself of workers' compensation and based on a perception of disability, by
requiring him to perform less desirable road work, and barring him from the
supply warehouse. Plaintiff alleged defendant retaliated against him by
requiring he submit to the drug test. Plaintiff asserted the testing was not
random, but targeted, and claimed defendant did not follow its own policy of
awaiting the testing facility's review of the medications plaintiff was taking as
potentially exculpatory evidence before taking disciplinary action.
Following the completion of discovery, which also included the
deposition of plaintiff and three supervisors, defendant filed a motion for
summary judgment. The motion judge rejected plaintiff's claim defendant had
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retaliated against him for accepting workers' compensation. The judge noted
"[d]efendant points out that there were other instances where plaintiff availed
himself of worker[s'] compensation benefits and no retaliation took place."
The judge also rejected plaintiff's claim that defendant had retaliated
against him by targeting him for drug testing. The judge detailed the testing
process. He described how it was conducted by an independent third-party,
which maintains "a database with eligible Camden County employees with
CDL's which are updated by the county . . . in order to ensure a lack of bias in
the selection process." The judge noted that nine other employees were also
randomly selected with plaintiff, including an employee plaintiff claimed had
been harassing him. The judge also described how the test results were reviewed
by a qualified scientist, and plaintiff was afforded the opportunity to provide the
testing facility with an explanation for the positive test results. The judge noted
plaintiff did not dispute the drug test and instead entered into a settlement
agreement and agreed to a suspension.
The judge concluded there was no direct or circumstantial evidence of
discrimination based upon perception of disability. He noted after plaintiff's
injury and convalescence he "was cleared to return to work fulltime, at full
duty." The judge further found "no evidence [plaintiff] was forced to labor
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under unreasonable conditions . . . [o]r that someone else was hired to perform
his work." The judge concluded:
There's no evidence that the drug test and subsequent
discipline were in retaliation for plaintiff's receiving
worker[s'] compensation benefits. Or that the plaintiff
was able to show any link between . . . the random drug
test and plaintiff's going out on worker[s']
compensation as a result of the December 7th injury.
The judge also dismissed plaintiff's punitive damages claim. The judge
found the statements made by plaintiff's supervisors were not harassing,
egregious, or evidence of "wantonly, reckless, or malicious action" to warrant
consideration of punitive damages.
Following the entry of summary judgment, plaintiff filed a motion for
reconsideration. Plaintiff argued the motion judge misinterpreted his complaint
as asserting a hostile work environment. Plaintiff also argued the motion judge
believed defendant could terminate him for testing positive for amphetamines,
which misinterpreted defendant's drug testing policy. Plaintiff argued the judge
incorrectly found no evidence of perceived disability discrimination, and
incorrectly concluded defendant could rely on an "[i]nadmissible double hearsay
document to prove plaintiff was using illegal drugs."
The judge noted he did not decide the matter as a hostile work
environment claim because "plaintiff was alleging discriminatory retaliation and
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a perception of disability discrimination." The judge repeated his finding that
plaintiff had failed to demonstrate any evidence of retaliation for seeking
workers' compensation.
The judge rejected plaintiff's argument summary judgment was granted
only because plaintiff had tested positive for amphetamines. After repeating the
description of the drug testing procedure utilized on plaintiff and his coworkers,
the judge concluded:
[T]he facts belie plaintiff's claim in that he hasn't
explained the pain medication. He hasn't explained the
amphetamine. He chose to accept the settlement
agreement. He argues that he was forced to do so in
order to keep his job, but nonetheless on such an
important issue if he had a legitimate reason for taking
the amphetamine, that should have been put forth.
I find that there was confirmation that the County had
concerning [illicit] drug use; took the action based on
that and nothing really changed after that factually in
terms of any action on plaintiff's part to establish what
drug and what . . . prescription [he had].
Plaintiff was represented by an attorney, accepted the
action and cannot now complain or go back and . . . visit
those facts, again, when he entered into the settlement
agreement.
The judge denied plaintiff's motion for reconsideration. This appeal
followed.
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I.
At the outset, we note our review is limited to the November 8, 2017 order,
which denied plaintiff's motion for reconsideration. "While [Rule 2:5-1(f)(1)]
does not in terms so provide, it is clear that it is only the judgments or orders or
parts thereof designated in the notice of appeal which are subject to the appeal
process and review." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1
on R. 2:5-1(f)(1) (2019) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super.
463, 465-66 (App. Div. 1994)) (rejecting review of the trial court's denial of a
request for special interrogatories because the issue was not listed in the notice
of appeal). "[I]f the notice [of appeal] designates only the order entered on a
motion for reconsideration, it is only that proceeding and not the order that
generated the reconsideration motion that may be reviewed." Ibid. (citing W.H.
Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div.
2008)). For these reasons, we do not review the September 15, 2017 order
granting defendant summary judgment because plaintiff's notice of appeal does
not indicate he has appealed from the order.
II.
Motions for reconsideration are left to the discretion of the trial judge.
Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002); Marinelli v.
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Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). "[W]here there is a
denial of a motion for reconsideration, the standard . . . is 'abuse of discretion.'"
Marinelli, 303 N.J. at 77 (quoting Cummings v. Bahr, 295 N.J. Super. 374, 389
(App. Div. 1996)).
On appeal, plaintiff argues the motion judge should have granted
reconsideration and vacated summary judgment because a jury could conclude
defendant retaliated against him for being absent from work on medical leave
and defendant's reason for suspending him was discriminatory. Plaintiff argues
summary judgment was improper because a jury could conclude plaintiff was
discriminated against on the basis of a perceived disability. Plaintiff also argues
his claims supported submission of the issue of punitive damages to a jury. We
address these arguments in turn.
Pursuant to N.J.S.A. 10:5-12(d), it is unlawful under the LAD "[f]or any
person to take reprisals against any person . . . in the exercise or enjoyment of
. . . any right granted or protected by this act."
[T]he prima facie elements of a retaliation claim under
the LAD requires plaintiff to demonstrate that: (1)
plaintiff was in a protected class; (2) plaintiff engaged
in protected activity known to the employer; (3)
plaintiff was thereafter subjected to an adverse
employment consequence; and (4) that there is a causal
link between the protected activity and the adverse
employment consequence.
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[Victor v. State, 203 N.J. 383, 409 (2010).]
As we noted, the motion judge determined plaintiff had not demonstrated
a causal link between availing himself of workers' compensation and his
suspension from employment for several reasons in granting summary
judgment. Indeed, contrary to plaintiff's claims, there was no evidence the drug
test was not random, the drug testing facility contacted plaintiff to provide his
prescription medications before contacting defendant and before disciplinary
charges were filed, and plaintiff agreed to his suspension as a result of the drug
test. Furthermore, all employees were excluded from the supply warehouse;
plaintiff was not singled out. There was also no evidence that requiring plaintiff
to do road work as opposed to working only in the yard was a form of menial
work. On reconsideration, the motion judge did not abuse his discretion when
he determined there was no causal link between plaintiff taking leave and the
disciplinary action he received for testing positive for amphetamines.
The LAD states it shall be an unlawful employment practice, or unlawful
discrimination "for an employer, because of the . . . disability . . . of any
individual . . . to discharge . . . or to discriminate against such individual . . . in
terms, conditions or privileges of employment[.]" N.J.S.A. 10:5-12(a).
Discrimination due to disability may be proved by either direct or circumstantial
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evidence. A.D.P. v. ExxonMobil Research & Eng'g Co., 428 N.J. Super. 518,
531 (App. Div. 2012).
The elements of a prima facie case of discriminatory
harassment, transfer, or discharge are that (1) the
complainant was handicapped within the meaning of
the law; (2) the complainant had been performing his or
her work at a level that met the employer's legitimate
expectations; (3) the complainant nevertheless had
been required to labor under conditions that were
unreasonably different from those of other employees,
had been transferred, or had been fired; and (in the case
of discriminatory transfer or discharge) (4) the
employer had sought another to perform the same work
after complainant had been removed from the position.
[Maher v. N.J. Transit Rail Operations, 125 N.J. 455,
480-81 (1991).]
Additionally, it is unlawful to discriminate based on perceived disability.
Andersen v. Exxon Co., 89 N.J. 483, 496 (1982). However, "an employer who
rejects a job applicant not because of his handicap per se but because of an
opinion, reasonably arrived at, that the handicap precludes adequate job
performance, . . . cannot and should not be found in violation of the [LAD.]"
Ibid. (citing Panettieri v. C.V. Hill Refrigeration, 159 N.J. Super. 472, 487
(1978)).
Indeed, in Vargo v. Nat'l Exch. Carriers Ass'n, Inc., 376 N.J. Super. 364,
381-83 (App. Div. 2005), we affirmed the summary judgment dismissal of a
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plaintiff's discrimination complaint where a drug test administered on behalf of
the plaintiff's employer returned positive for morphine. In Vargo, the plaintiff's
drug test was also positive for psychotropic medication. Id. at 374. The plaintiff
previously informed his employer he had been medically prescribed Zoloft and
Lotrel. Id. at 372. However, he was terminated and subsequently filed suit
alleging, in part, the employer "wrongfully refused to hire him as a permanent
employee . . . and wrongfully discharged him from his temporary position . . .
in violation of the NJLAD because [the employer's] decisions were based on its
perception that he was suffering from a disability." Id. at 378. We affirmed
summary judgment in the employer's favor and held "where an employer was
presented with a positive drug test result for a prospective employee, there was
nothing improper or unlawful in the employer's perceiving the prospective
employee as a user of illegal drugs." Id. at 383.
Here, there is no evidence plaintiff was actually disabled. He returned to
work following his leave on a full-time basis and without restriction.
Notwithstanding the lack of proof of an actual disability, and assuming plaintiff
had a disability, he testified as follows in his deposition:
Q. Do you believe that the County took you out of the
yard and put you on the road because of the disability
that you just described for me, which was the [discs,]
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the tear in your rotator cuff, and your post-traumatic
stress disorder?
A. No ma'am.
Additionally, plaintiff testified:
Q. Do you believe that your disability had any reason
or had any factor in you being suspended as a result of
the positive drug test?
A. No ma'am.
Therefore, the motion judge did not abuse his discretion when he denied
plaintiff's motion for reconsideration where plaintiff failed to establish he was
disabled or that he was required "to labor under conditions that were
unreasonably different from those of other employees[.]" Maher, 125 N.J. at
480-81.
For these same reasons, the motion judge did not abuse his discretion
when he denied plaintiff's motion for reconsideration on account of perceived
disability discrimination. Moreover, as we noted, pursuant to Vargo,
defendant's suspension of plaintiff as a result of the positive drug screen was not
discriminatory.
Finally,
[p]unitive damages may be awarded to the plaintiff only
if the plaintiff proves, by clear and convincing
evidence, that the harm suffered was the result of the
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defendant’s acts or omissions, and such acts or
omissions were actuated by actual malice or
accompanied by a wanton and willful disregard of
persons who foreseeably might be harmed by those acts
or omissions. This burden of proof may not be satisfied
by proof of any degree of negligence including gross
negligence.
[N.J.S.A. 2A:15-5.12(a).]
The motion judge did not abuse his discretion to deny plaintiff
reconsideration due to the lack of evidence demonstrating prima facie
discrimination under the LAD. Consequently, the record lacks clear and
convincing evidence that defendant harmed plaintiff to warrant consideration of
a punitive damages claim by a jury.
Affirmed.
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