Brian Hejda v. Bell Container Corporation , 450 N.J. Super. 173 ( 2017 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3502-14T1
    BRIAN HEJDA,
    APPROVED FOR PUBLICATION
    Plaintiff-Appellant,
    May 9, 2017
    v.
    APPELLATE DIVISION
    BELL CONTAINER CORPORATION,
    Defendant-Respondent.
    _________________________________
    Argued September 14, 2016 – Decided May 9, 2017
    Before Judges Messano, Espinosa and Guadagno.
    On appeal from Superior Court of New Jersey,
    Law Division, Monmouth County, Docket No. L-
    4179-14.
    John P. Brennan, Jr. argued the cause for
    appellant.
    Jamie S. Felsen (Milman Labuda Law Group,
    PLLC) of the New York bar, admitted pro hac
    vice, argued the cause for respondent (Milman
    Labuda Law Group, PLLC, attorneys; Mr. Felsen,
    Netanel Newberger, and Robert F. Milman, of
    the New York bar, admitted pro hac, on the
    briefs).
    Deborah L. Mains argued the cause for amicus
    curiae New Jersey Association for Justice
    (Costello & Mains, LLC, attorneys; Ms. Mains,
    on the brief).
    The opinion of the court was delivered by
    ESPINOSA J.A.D.
    In Puglia v. Elk Pipeline, Inc., 
    226 N.J. 258
     (2016), our
    Supreme Court applied principles the United States Supreme Court
    clarified in Hawaiian Airlines v. Norris, 
    512 U.S. 246
     
    114 S. Ct. 2239
    , 
    129 L. Ed. 2d 203
     (1994), to conclude that an employee's
    state whistleblower claim was not pre-empted by § 301 of the Labor
    Management and Relations Act (LMRA), 29 U.S.C.A. 185(a).                        This
    appeal presents the question whether an employee-union member's
    disability     discrimination          claim      under   the     Law       Against
    Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and retaliatory
    discharge    claim   under   the       Workers'    Compensation       Law    (WCL),
    N.J.S.A. 34:15-1 to -128.5, are pre-empted by § 301.                  We conclude
    the claims as asserted are not pre-empted because they do not
    require     interpretation    of       any    provision   of    the   collective
    bargaining agreement (CBA) between the union and employer.
    I.
    A.
    Plaintiff Brian Hejda, a member of Teamsters Local Union 813,
    was employed as a commercial truck (CDL) driver by defendant Bell
    Container Corp. when he suffered a workplace injury to his knee
    on August 22, 2012.          A physician's assistant examined him at
    Bell's request and referred him for an MRI and six physical therapy
    2                                        A-3502-14T1
    sessions.1    Hejda was cleared to return to work that day with the
    following restrictions: "No squatting and/or kneeling," "Must wear
    knee brace," and "No climbing stairs or ladders."            The report also
    noted, "NO WORK IF NO LIGHT DUTY."             Hejda averred that, despite
    these restrictions, Bell's safety director asked him to continue
    driving.     Hejda refused, orally demanded workers' compensation,
    and left for home.
    After follow-up visits on September 21, 2012 and October 5,
    2012, physician reports cleared Hejda to return to work immediately
    with the same restrictions, adding he was "[u]nable to drive
    company vehicle."      Hejda asserted Bell advised him that no light
    duty work was available.
    In   October   and   November   2012,    Dr.   Toby   B.   Husserl,   an
    orthopedic specialist, examined Hejda's knee and reviewed his MRI
    results.2     He concluded Hejda required surgery and, without it,
    1   Hejda attended one physical therapy session.
    2   An MRI revealed Hejda had suffered:
    Complex tear posterior horn medial meniscus
    with displaced fragment into the intercondylar
    notch adjacent to the PCL. Nondisplaced
    truncation    tear    central-apical    margin
    posterior horn lateral meniscus. Moderate
    suprapatellar          joint         effusion.
    Tricompartmental      articular      cartilage
    degeneration particularly at the patellar
    upper pole lateral facet and posterior weight
    bearing lateral tibial plateau.
    3                                    A-3502-14T1
    Hejda was not "safe for his work as a tractor-trailer driver and
    would be best sedentary."          Although he cleared Hejda to return to
    work in November 2012, Dr. Husserl included the restriction that
    Hejda be limited to "Sedentary work (primarily sitting)," and
    perform "NO COMMERCIAL DRIVING."
    On November 20, 2012, Hejda filed a workers' compensation
    claim with the New Jersey Department of Labor and Workforce
    Development, Division of Workers' Compensation (NJDOL).                           In its
    answer, Bell denied Hejda "sustained a disabling injury while in
    the course and scope of his/her employment with [Bell]."
    In    February   2013,     Hejda      consulted       Dr.   Mark    Seckler,      an
    orthopedic specialist.        Dr. Seckler agreed with Dr. Husserl that
    arthroscopic surgery was "the treatment of choice" and that,
    despite   Hejda's    claim    to     be   "absolutely       asymptomatic,"          such
    surgery was inevitable.       Nevertheless, he cleared Hejda to return
    to work on February 7, 2013, with full duty and no restrictions.
    Hejda reported to work every day during the week of February
    11-15, 2013, but was not given much to do.                  When he reported to
    work the following week, he was told by Bell to leave.
    B.
    On    February   20,     2013,     Bell    sent   a    letter      to   the    union
    explaining that before Hejda could return to work, he had to be
    recertified pursuant to the Department of Transportation (DOT)
    4                                          A-3502-14T1
    Federal Motor Carrier Safety Regulation, 
    49 C.F.R. § 391.45
    (c).
    That regulation requires "[a]ny driver whose ability to perform
    his/her normal duties has been impaired by a physical or mental
    injury or disease" to be "medically examined and certified in
    accordance with [49 C.F.R.]§ 391.43 as physically qualified to
    operate a commercial motor vehicle."
    
    49 C.F.R. § 391.43
    (a) requires that the physical examination
    "be performed by a medical examiner listed on the National Registry
    of Certified Medical Examiners."     In addition, medical examiners
    must:
    (1) Be knowledgeable of the specific physical
    and mental demands associated with operating
    a   commercial   motor    vehicle   and   the
    requirements of this subpart, including the
    medical advisory criteria prepared by the
    [Federal Motor Carrier Safety Administration]
    as guidelines to aid the medical examiner in
    making the qualification determination; and
    (2) Be proficient in the use of and use the
    medical protocols necessary to adequately
    perform the medical examination required by
    this section.
    [
    49 C.F.R. § 391.43
    (c).]
    The results of the medical examination must be recorded on
    a specified Medical Examination Report Form, MCSA-5875, set
    forth in the regulation.   
    49 C.F.R. § 391.43
    (f).   That form
    requires the driver to complete a "Health History," which must
    be reviewed and discussed with the physician.
    5                               A-3502-14T1
    In its letter to the union, Bell represented it would contact
    Hejda to schedule the recertification.          Hejda declined to submit
    to the scheduled independent medical examination.
    C.
    Pursuant to the terms of the CBA, the union filed a grievance
    against Bell in February 2013, alleging violations of Articles 2
    (wages), 4 (hours), 5 (overtime), 19 (non-discrimination) and 20
    (seniority) of the CBA for "failure to schedule [Hejda] to work
    after doctor's release."    The remedy requested was payment of "all
    lost wages and benefits as well as schedule to work immediately."
    The grievance arbitration was conducted on April 5, 2013.
    On April 11, 2013, Hejda obtained a medical certificate from
    Dr. Alexander Goldberg, a family physician.3           On the form, Hejda
    certified he had provided "complete and true" information and
    acknowledged    the   examination        and   certification     could   be
    invalidated    by   "inaccurate,    false      or   missing   information."
    However, he reported he had no medical history of issues relating
    to an "impaired . . . leg."        Dr. Goldberg's comments on the form
    reflect no discussion of Hejda's knee injury.                 Dr. Goldberg
    3 After Hejda obtained this certificate, the NJDOL found him
    eligible for workers compensation benefits without restriction,
    from April 7, 2013. Bell appealed, arguing Hejda was discharged
    for reasons that constituted misconduct in connection with his
    work. The Appeal Tribunal rejected this argument and affirmed the
    award.
    6                              A-3502-14T1
    executed the Medical Examiner's Certificate and sent a copy to
    Bell.
    Bell    asked   Dr.   Goldberg     to   confirm   he   considered   the
    evaluations made by Dr. Husserl and Dr. Seckler.                Dr. Goldberg
    wrote a letter to Hejda, acknowledging he knew about Hejda's work
    injury and subsequent clearance to return to work, and reiterated
    that Hejda "meets the standards in 49 [C.F.R. §] 391.41; [and is]
    qualified for 2 year certificate." Bell accused Hejda of obtaining
    the certificate from Dr. Goldberg "under false pretenses" by
    failing to inform him of his knee injury or provide him with the
    earlier evaluations.
    In July 2013, the arbitrator issued an award and opinion,
    denying    the   union's     grievance.         The   issue   arbitrated   was
    "[w]hether the Employer's refusal to return the Grievant to his
    former position upon Dr. Seckler's letter violated the [CBA] or
    applicable [DOT] regulations, and, if so, what shall the remedy
    [be]?"    The arbitrator identified the applicable contract section
    as Article 32, which addresses the employer's rights.4
    4   Article 32 of the CBA states, in part:
    (a) [T]he Employer shall retain all the rights
    and functions of management that it has by
    law, and the exercise of any such rights or
    functions shall not be subject to arbitration
    . . . .
    (b) The Union recognizes the right of the
    Employer to establish work rules, regulations,
    7                                     A-3502-14T1
    Bell submitted it had "just cause"5 for refusing to reinstate
    Hejda as a CDL driver until he was certified in compliance with
    
    49 C.F.R. § 391.43.6
        The union argued that Hejda should be
    reinstated because Dr. Goldberg had provided a medical examiner's
    certificate.
    The arbitrator explicitly stated the arbitration opinion was
    "not a just cause determination" but also found the union failed
    to prove Bell had violated the CBA.   The arbitrator observed that
    the regulation, 
    49 C.F.R. § 391.45
    (c), was "a law that [Bell] was
    required to follow and by contract, is entitled to manage its
    and policies covering the operations of its
    trucking fleet and the conduct of its
    employees. Such rights shall include but not
    be limited to issuing rules concerning safety,
    training, and efficient operations. . . .
    (c) It is agreed and understood that if the
    Employee aggrieved as a result of a rule or
    direction, he will observe the rule or
    direction and express the grievance through
    the grievance procedure provided in this
    Agreement and not through the failure to
    comply therewith.
    5 Article 18 of the CBA, which addresses employee discharge,
    acknowledges Bell's "right to discharge or take any appropriate
    disciplinary action against Employees for . . . just cause."
    6 Hejda was also examined, in May 2013, by another orthopedic
    specialist, Dr. Robert I. Dennis, at Bell's request. Dr. Dennis
    concluded Hejda "does have a functional range of motion to be able
    to carry out the duties of a tractor-trailer driver even one that
    has to unload with pallets without hesitation."      Dr. Dennis's
    evaluation is not mentioned in the arbitrator's award and opinion.
    8                              A-3502-14T1
    employees, like [Hejda] under that law."7         In light of the specific
    requirements for recertification set forth in the DOT regulations,
    which were not satisfied by the evaluations submitted by Hejda,
    the arbitrator concluded the issue of Hejda's reinstatement would
    be held in abeyance until such time that he was examined and
    certified pursuant to 
    49 C.F.R. § 391.41
    (b)(2).             Until that time,
    Hejda was to remain on a medical layoff consistent with other
    terms of the CBA.
    D.
    In March 2013, Hejda filed a Complaint of Discrimination
    against Bell with the NJDOL's Office of Special Compensation Funds,
    alleging he had been discriminated against because he filed a
    workers compensation claim.        In its answer, Bell asserted Hejda's
    employment had not been reinstated because he had not yet been
    recertified   pursuant   to   
    49 C.F.R. § 391.45
        and   not   for   any
    discriminatory   reason.       In    September     2014,    the    Office     of
    Administrative Law dismissed this complaint without prejudice,
    concluding Hejda could not have been discriminated or retaliated
    against because he was not eligible to return to work without
    7 Article 35 of the CBA addresses examinations, and states:
    "Physical or other examinations (including [DOT] physicals)
    required by any government body shall be promptly complied with
    by all Employees provided, however, the Employer shall pay for all
    such examinations."
    9                              A-3502-14T1
    proper certification and Bell had no obligation to reinstate a
    worker who was not properly certified.
    E.
    In November 2013, Hejda submitted a second certification from
    Dr.   Goldberg      that      purported      to     comply    with   the    regulatory
    requirements, along with a demand to be returned to work as a
    truck driver.       Bell offered him the position of "night switcher."
    Hejda continued to demand reinstatement as a CDL driver, claiming
    the night switcher offer was "obviously intended to retaliate
    against [Hejda] for his assertion of his legal rights and in
    discrimination of [Bell's] apparent unwarranted belief he has a
    handicap/disability           which     prevents        him   from   performing       his
    position as a" CDL driver.
    F.
    In October 2014, Hejda filed this lawsuit, alleging Bell's
    refusal   to   reinstate         him   to    his    position    as   a   truck    driver
    constituted unlawful discrimination under the LAD and retaliation
    under the WCL.            Bell moved to dismiss the complaint pursuant to
    Rule 4:6-2(a), on the ground that both the LAD and WCL claims are
    pre-empted     by     §    301   of    the   LMRA    because    their    adjudication
    "require[s]      an        interpretation         and    application       of    various
    provisions of [the CBA]."               Bell also argued Hejda's claims are
    pre-empted by DOT regulations and barred by collateral estoppel.
    10                                       A-3502-14T1
    Finally,   Bell    contended        that,   because       Hejda    did   not   receive
    recertification pursuant to the applicable DOT regulations, he was
    not   qualified    to   be    a   CDL     driver    and,    therefore,     could    not
    establish an LAD disability discrimination claim.
    Because the trial judge concluded "the provisions of the CBA
    must be analyzed to determine . . . the claims and defenses at
    issue," she found the claims pre-empted and dismissed the complaint
    for lack of subject matter jurisdiction pursuant to Rule 4:6-2(a).
    Accordingly,      she   did   not    address       Bell's   other    arguments      for
    dismissal.
    In   this   appeal,     Hejda       argues    the    trial   judge   erred      in
    concluding his claims were pre-empted by federal law.                          He also
    argues the judge erred in failing to afford him all reasonable
    inferences from the facts in accord with the standard applicable
    to summary judgment motions, Rule 4:46-2(c), and deciding the case
    before discovery was complete. We need not address these arguments
    because the question of pre-emption is a purely legal issue, which
    we review de novo.        See Santiago v. N.Y. & N.J. Port Auth., 
    429 N.J. Super. 150
    , 156 (App. Div. 2012), certif. denied, 
    214 N.J. 175
     (2013).       Bell counters that the trial judge correctly ruled
    that Hejda's claims were pre-empted.                  Amicus curiae New Jersey
    Association for Justice argues in support of Hejda's position.
    11                                        A-3502-14T1
    II.
    "Whether federal law pre-empts a state law establishing a
    cause of action is a question of congressional intent."         Hawaiian
    Airlines, 
    supra,
     
    512 U.S. at 252
    , 
    114 S. Ct. at 2243
    , 
    129 L. Ed. 2d at
    211 (citing Allis-Chalmers Corp. v. Lueck, 
    471 U.S. 202
    ,
    208, 
    105 S. Ct. 1904
    , 1909-10, 
    85 L. Ed. 2d 206
    , 213 (1985)).            A
    federal statute will be read to supersede a State's historic powers
    only if this is "'the clear and manifest purpose of Congress.'"
    Hillsborough Cty. v. Automated Med. Labs., Inc., 
    471 U.S. 707
    ,
    715, 
    105 S. Ct. 2371
    , 2376, 
    85 L. Ed. 2d 714
    , 722-23 (1985)
    (quoting Jones v. Rath Packing Co., 
    430 U.S. 519
    , 525, 
    97 S. Ct. 1305
    , 1309, 
    51 L. Ed. 2d 604
    , 614 (1977)). Pre-emption is not to
    be "lightly inferred" in areas, such as the establishment of
    employment standards, which lie "within the traditional police
    power of the State."      Hawaiian Airlines, 
    supra,
     
    512 U.S. at 252
    ,
    
    114 S. Ct. at 2243
    , 
    129 L. Ed. 2d at 211
     (quoting Fort Halifax
    Packing Co. v. Coyne, 
    482 U.S. 1
    , 21, 
    107 S. Ct. 2211
    , 2222, 
    96 L. Ed. 2d 1
    , 17 (1987)).
    Section 301 of the LMRA grants subject matter jurisdiction
    to the federal courts over "[s]uits for violation of contracts
    between   an   employer   and   a    labor   organization   representing
    employees in an industry affecting commerce as defined in this
    Act."   
    29 U.S.C.A. § 185
    (a) (emphasis added).       Federal courts are
    12                               A-3502-14T1
    charged    with   "fashion[ing]     a   body   of   federal    law    for    the
    enforcement of these collective bargaining agreements."                Textile
    Workers v. Lincoln Mills of Ala., 
    353 U.S. 448
    , 451, 
    77 S. Ct. 912
    , 915, 
    1 L. Ed. 2d 972
    , 977            (1957).     Pre-emption in this
    context    implements   the    congressional    intent   "to       promote   the
    peaceable, consistent resolution of labor-management disputes" by
    insuring    the   uniform     interpretation   of   terms     in    collective
    bargaining agreements.        Lingle v. Norge Div. of Magic Chef, 
    486 U.S. 399
    , 404, 
    108 S. Ct. 1877
    , 1880, 
    100 L. Ed. 2d 410
    , 417
    (1988).
    The practical consequence of this principle is that when a
    suit in state court alleges a violation of a labor contract, it
    "must be brought under § 301 and be resolved by reference to
    federal law."8    Lueck, 
    supra,
     471 U.S. at 210, 105 S. Ct. at 1911,
    85 L. Ed. 2d at 215.        In such circumstances, pre-emption serves
    congressional intent by precluding the creation of a "state rule
    that purports to define the meaning or scope of a term in a
    contract suit" and conflicts with a federal interpretation.              Ibid.
    8 State courts have concurrent jurisdiction over § 301 claims but
    are bound to apply federal law in deciding these claims. See Local
    174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas
    Flour, 
    369 U.S. 95
    , 102-03, 
    82 S. Ct. 571
    , 576, 
    7 L. Ed. 2d 593
    ,
    598 (1962); Charles Dowd Box Co. v. Courtney, 
    368 U.S. 502
    , 508,
    
    82 S. Ct. 519
    , 523 
    7 L. Ed. 2d 483
    , 488 (1962).
    13                             A-3502-14T1
    A state-law claim that does not present a straightforward
    question of contract interpretation requires further examination.
    "[W]hen resolution of a state-law claim is substantially dependent
    upon analysis of the terms of an agreement made between the parties
    in a labor contract, that claim must either be treated as a § 301
    claim or dismissed as pre-empted by federal labor-contract law."
    Id. at 220, 105 S. Ct. at 1916, 85 L. Ed. 2d at 221 (citation
    omitted); accord Lingle, 
    supra,
     
    486 U.S. at 405-06
    , 
    108 S. Ct. at 1881
    , 
    100 L. Ed. 2d at 418-19
    .    By way of example, there is such
    substantial   dependence   when   the   state-law   claim    requires
    "interpretation of a collective bargaining agreement to determine
    the content and scope of the agreement, and what legal consequences
    were intended to flow from a breach of an agreement."       Nieves v.
    Individualized Shirts, 
    961 F. Supp. 782
    , 792 (D.N.J. 1997) (citing
    Lucas Flour, 
    supra,
     
    369 U.S. at 103-04
    , 82 S. Ct. at 577, 7 L. Ed.
    2d at 599).
    In short, because of the compelling need for federal labor-
    law principles to be uniformly applied,
    if the resolution of a      state-law claim
    depends upon the meaning of a collective-
    bargaining    agreement, the application of
    state law . . . is pre-empted and federal
    labor-law principles . . . must be employed
    to resolve the dispute.
    [Lingle, 
    supra,
     
    486 U.S. at 405-06
    , 
    108 S. Ct. at 1881
    ; 
    100 L. Ed. 2d at 418-19
     (emphasis
    14                                A-3502-14T1
    added); accord Puglia, supra, 226 N.J. at
    276.9]
    This does not mean "every dispute concerning employment, or
    tangentially involving a provision of a collective-bargaining
    agreement, is pre-empted by § 301 or other provisions of the
    federal labor law." Lueck, 
    supra,
     471 U.S. at 211, 105 S. Ct. at
    1911, 85 L. Ed. 2d at 215.          "[T]here is nothing novel about
    recognizing that substantive rights in the labor relations context
    can exist without interpreting collective-bargaining agreements."
    Lingle, 
    supra,
     
    486 U.S. at 411
    , 
    108 S. Ct. at 1884
    , 
    100 L. Ed. 2d at 422
    .   The Supreme Court explained, "it would be inconsistent
    with congressional intent under [§ 301]" to extend its pre-emptive
    effect "beyond suits for breach of contract . . .              to pre-empt
    state   rules   that   proscribe   conduct,   or   establish   rights   and
    obligations, independent of a labor contract."         Lueck, 
    supra,
     471
    U.S. at 212, 105 S. Ct. at 1912, 85 L. Ed. 2d at 216.                   The
    holding in Lingle concisely states the governing principle: "[A]n
    application of state law is preempted by § 301 of the [LMRA] only
    if such application requires the interpretation of a collective-
    bargaining agreement." 
    486 U.S. at 413
    , 
    108 S. Ct. at 1884
    , 
    100 L. Ed. 2d at 423
     (emphasis added).
    9 The trial court did not have the benefit of the Supreme Court's
    decision in Puglia at the time it rendered its decision and relied
    upon our decision, Puglia v. Elk Pipeline, Inc., 
    437 N.J. Super. 466
     (App. Div. 2014), which was reversed by the Supreme Court.
    15                             A-3502-14T1
    Inevitably, there are times when a grievance may be pursued
    either through a claim that a provision of the CBA has been
    violated or a claim that has its roots in state law.           Under such
    circumstances, the fact the employee has the ability to assert
    parallel claims under the CBA and under state law does not convert
    the state-law-based claim into one "dependent on the CBA." Puglia,
    supra, 226 N.J. at 281.       The state-law claim is not necessarily
    pre-empted    even   when   reference   to   the   CBA   assists   in   the
    calculation of damages to which a prevailing state-law plaintiff
    is entitled:
    Although   federal  law   would  govern   the
    interpretation of the agreement to determine
    the proper damages, the underlying state-law
    claim, not otherwise pre-empted, would stand.
    Thus, as a general proposition, a state-law
    claim may depend for its resolution upon both
    the interpretation of a collective-bargaining
    agreement and a separate state-law analysis
    that does not turn on the agreement. In such
    a case, federal law would govern the
    interpretation of the agreement, but the
    separate state-law analysis would not be
    thereby pre-empted.
    [Lingle, supra, 
    486 U.S. at
    413 n.12, 
    108 S. Ct. at 1884
    , 
    100 L. Ed. 2d at 423
     (emphasis
    added).]
    As our Supreme Court observed, the plaintiff in Puglia could
    have asserted parallel claims based on the Conscientious Employee
    Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, or on provisions
    of the CBA.    Puglia, supra, 226 N.J. at 281.           In rejecting the
    16                                  A-3502-14T1
    argument that his CEPA claim was pre-empted under § 301, the Court
    observed,
    Mere factual parallelism between a CEPA claim
    and a CBA-based claim does not make a CEPA
    claim dependent on the CBA. Puglia is not
    asking New Jersey courts to use New Jersey law
    to define the ins and outs of his bargained-
    for employment relationship with Elk. He is
    asking our courts to enforce his rights under
    CEPA,   independent   and   apart   from   his
    bargained-for employment conditions. That,
    our courts can do.
    [Ibid.]
    Thus, our evaluation of the § 301 pre-emption question begins
    with Hejda's complaint, which we review "to find the source of the
    right that he alleges [Bell] infringed. From that, we can determine
    whether [Hejda's] claim requires an interpretation of the CBA."
    See id. at 280.
    The    assertion   of   a   defense   based   on   the   CBA   will   not
    necessarily alter the resolution of the pre-emption question.
    Ordinarily, a CBA-based defense is "insufficient to preempt an
    independent state-law action," because in the typical case, it is
    unnecessary to interpret the just cause language of a CBA in order
    to resolve a discrimination or retaliatory discharge claim.                Id.
    at 279-80 (citing Hawaiian Airlines, 
    supra,
     
    512 U.S. at 266
    , 
    114 S. Ct. at 2251
    , 
    129 L. Ed. 2d at 220
    ); see also Lingle, 
    supra,
     
    486 U.S. at 407
    , 
    108 S. Ct. at 1882
    , 
    100 L. Ed. 2d at 419-20
    .                   To
    determine whether pre-emption is required as a result of the
    17                         A-3502-14T1
    defense, we still "look to what a plaintiff must prove" in the
    state-law claim.    Puglia, supra, 226 N.J. at 282.
    A.
    We first address Hejda's claim that Bell retaliated against
    him for filing a workers compensation claim.          Our analysis is
    guided by the Supreme Court's decision in Lingle, in which the
    plaintiff also claimed she was discharged for filing a workers
    compensation claim. 
    486 U.S. at 401
    , 
    108 S. Ct. at 1879
    , 
    100 L. Ed. 2d at 416
    .      The Supreme Court rejected the Circuit Court's
    conclusion that the claim was pre-empted by § 301, stating,
    [E]ven if dispute resolution pursuant to a
    collective-bargaining agreement, on the one
    hand, and state law, on the other, would
    require addressing precisely the same set of
    facts, as long as the state-law claim can be
    resolved without interpreting the agreement
    itself, the claim is "independent" of the
    agreement for § 301 pre-emption purposes.
    [Id. at 409-10, 
    108 S. Ct. at 1883
    , 
    100 L. Ed. 2d at 421
    .]
    The Court reviewed the elements of the workers compensation
    retaliation tort recognized by Illinois courts, i.e., "that (1)
    [the employee] was discharged or threatened with discharge and (2)
    the employer's motive in discharging or threatening to discharge
    him was to deter him from exercising his rights under the [Illinois
    workers compensation statute] or to interfere with his exercise
    of those rights."    
    Id. at 407
    , 
    108 S. Ct. at 1882
    , 
    100 L. Ed. 2d 18
                                  A-3502-14T1
    at 419 (citation omitted). The Court stated each of these elements
    presented    "purely    factual   questions"    that    "pertain[]   to   the
    conduct of the employee and the conduct and motivation of the
    employer" and did not "require[] a court to interpret any term of
    a collective-bargaining agreement."          
    Ibid.
         The Court also noted
    the defense against such a claim – proof of a nonretaliatory reason
    for the discharge – also entailed a "purely factual inquiry [that]
    does not turn on the meaning of any provision of a collective-
    bargaining agreement."      
    Id. at 407
    , 
    108 S. Ct. at 1882
    , 
    100 L. Ed. 2d at 420
    .    The Court therefore concluded, "the state-law remedy
    in   this   case   is   'independent'   of     the   collective-bargaining
    agreement in the sense of 'independent' that matters for § 301
    pre-emption purposes: resolution of the state-law claim does not
    require construing the collective-bargaining agreement." Ibid.
    The essential elements of a claim under N.J.S.A. 34:15-39.110
    require similar proof: "(1) that [Hejda] made or attempted to make
    a claim for workers' compensation; and (2) that he was discharged
    in retaliation for making that claim." Cerracchio v. Alden Leeds,
    Inc., 
    223 N.J. Super. 435
    , 442-43 (App. Div. 1988) (quoting Galante
    v. Sandoz, Inc., 
    192 N.J. Super. 403
    , 407 (Law Div. 1983), aff'd,
    10N.J.S.A. 34:15-39.1 makes it unlawful "to discharge or in any
    other manner discriminate against an employee as to his employment
    because such employee has claimed or attempted to claim workmen's
    compensation benefits from such employer."
    19                             A-3502-14T1
    
    196 N.J. Super. 568
     (App. Div. 1984)).    In the count asserting
    this claim, Hejda made no reference to any provision of the CBA.
    He alleged the essential elements of the cause of action: that
    Bell unlawfully discriminated against him and discharged him from
    his employment because he filed a workers compensation claim and
    that the nature and extent of his injury did not preclude him from
    performing his job.
    As the Court concluded in Lingle, each of these allegations
    presents a "purely factual inquiry" that does not require the
    interpretation of any provision of the CBA.    Lingle, 
    supra,
     
    486 U.S. at 407
    , 
    108 S. Ct. at 1882
    , 
    100 L. Ed. 2d at 420
    ; accord
    Puglia, supra, 226 N.J. at 280. Hejda's workers compensation
    retaliation claim is, therefore, "independent" of the CBA and not
    pre-empted by § 301.     Puglia, supra, 226 N.J. at 282; accord
    Conaway v. Webster City Products Co., 
    431 N.W. 2d 795
    , 799 (Iowa
    1988).
    B.
    Hejda asserted his LAD disability discrimination claim in a
    count that alleged:
       Hejda has a disability and is regarded
    by Bell as having a covered disability.
       Bell knew he had a disability and
    discriminated against him while he was
    impaired and because of his impairment.
    20                             A-3502-14T1
       Hejda   made   repeated    demands   for
    reasonable accommodations.
       Hejda was "otherwise qualified for
    employment with [Bell] with or without
    reasonable accommodation."
       Bell discriminated against Hejda "in
    employment opportunity" despite the fact
    that "he was qualified for employment and
    previously performed his duties in
    accordance   with   the  terms   of   his
    employment."
       Bell failed to engage him "in a good
    faith interactive process regarding his
    requests for reasonable accommodation
    and wrongfully failed to provide [him]
    with reasonable accommodation."
       Bell retaliated against him "because of
    his disability," wrongfully altering
    "the terms and conditions of [his]
    employment based upon discriminatory and
    retaliatory intent."
    None of these allegations call for the interpretation of any
    provision of the CBA.11   Whether or not a parallel avenue existed
    in the CBA for Hejda to pursue his allegations, the complaint
    alleges a cause of action under the LAD, which plainly establishes
    rights that are independent of the CBA.
    To present a prima facie case of disability discrimination
    under LAD, Hejda was required to prove: (1) he was disabled (or
    11Article 19 of the CBA, titled "Non-discrimination," prohibits
    discrimination based on "race, color, religion, sex, national
    origin, pregnancy, or age" and does not address discrimination
    based on disability.
    21                           A-3502-14T1
    perceived to be disabled); (2) he was objectively qualified for
    his former position; (3) he was terminated; and (4) the employer
    sought someone to perform the same work after the plaintiff's
    discharge.    Zive v. Stanley Roberts, Inc., 
    182 N.J. 436
    , 450
    (2005).   If the employee establishes a prima facie case, "the
    burden of production shifts to the employer      to articulate a
    legitimate, nondiscriminatory reason for the employer's action."
    
    Id. at 449
    .   Once that reason is articulated, it is left to the
    employee to prove by a preponderance of the evidence that the
    reason was merely pretextual. 
    Ibid.
    Each of these elements presents a "purely factual inquiry."
    As the Court noted in Puglia:
    Whether Puglia performed a whistleblowing
    activity in reporting the alleged failure by
    Elk   to   abide   by  Prevailing   Wage   Act
    requirements, and whether Elk retaliated
    against Puglia for doing so are factual
    questions, untied to any interpretation of the
    CBA. CEPA creates independent rights. Puglia's
    CEPA cause of action is unaffected by whether
    the CBA was violated; it asks only whether
    Puglia's whistleblowing activity played a role
    in his termination.
    [226 N.J. at 280.]
    This analysis marks a departure from the Court's decision in
    Maher v. N.J. Transit Rail Operations, 
    125 N.J. 455
     (1991).     The
    plaintiff in Maher was discharged after he refused to comply with
    the requirement of his employer, New Jersey Transit (NJT), to wear
    22                             A-3502-14T1
    safety glasses at all times.     
    Id. at 461
    .      He filed suit, alleging
    violations of LAD and CEPA.         
    Id. at 463
    .      The Court found the
    plaintiff's LAD claim pre-empted by the Railway Labor Act (RLA),
    
    45 U.S.C.A. §§ 151
     to 188.      Id. at 479.       Distinguishing Lingle,
    the Court stated the defense did not "hinge on consideration of
    'purely factual questions,'" and that "[a]n evaluation of whether
    NJT's   actions    were   reasonable    would   have   to   be   based    on
    consideration of the carrier's conduct in following provisions of
    the collective-bargaining agreement."       Id. at 481.
    The term, "purely factual inquiry," is not a model of clarity
    on its face.      But, the United States Supreme Court's decision in
    Hawaiian Airlines provides guidance for its application.
    In Hawaiian Airlines, 
    supra,
     
    512 U.S. at 266
    , 
    114 S. Ct. at 2251
    , 
    129 L. Ed. 2d at 220
    , the Supreme Court affirmed the decision
    by the Supreme Court of Hawaii that an employee's claims for
    discharge in violation of public policy and a state whistleblower
    act were not pre-empted by the RLA.               The Court adopted the
    framework articulated in Lingle and emphasized "the existence of
    a potential CBA-based remedy did not deprive an employee of
    independent remedies available under state law." 
    Id. at 261
    , 
    114 S. Ct. at 2248
    , 
    129 L. Ed. 2d at 216
    .           Turning to the impact of
    a CBA-based defense, the Court rejected the employer's contention
    "that the state tort claims require a determination whether the
    23                                  A-3502-14T1
    discharge . . . was justified by respondent's failure to sign the
    maintenance record, as the CBA required him to do."         
    Id. at 266
    ,
    
    114 S. Ct. at 2251
    , 
    129 L. Ed. 2d at 220
    .             A distinction was
    drawn between an allegation that a discharge violated the CBA,
    which would require such a determination, and the state tort claims
    that, "by contrast, require only the purely factual inquiry into
    any retaliatory motive of the employer."      
    Ibid.
    In Puglia, the Court cited Hawaiian Airlines as "fortif[ying]
    the view that . . . a CBA-based defense is ordinarily insufficient
    to preempt a state-law action," by "explain[ing] that . . . the
    issue to be decided in this action -— whether the employer's
    actions make out the element of discharge under [state] law -— is
    a 'purely factual question.'" 226 N.J. at 279 (quoting Hawaiian
    Airlines, 
    supra,
     
    512 U.S. at 266
    , 
    114 S. Ct. at 2251
    , 
    129 L. Ed. 2d at 220
    ).
    Our Supreme Court further noted the Court's rejection of the
    employer's    argument   that    the   state-law   claim   required      a
    determination whether its action was justified by the employee's
    failure to comply with a requirement of the CBA.       
    Ibid.
       Observing
    that Maher was decided before Hawaiian Airlines, the Puglia Court
    spurned the suggestion that Maher provided authority for the
    proposition that a CBA-based defense would pre-empt a state-law
    claim.   
    Id. at 280, n.4
    .   Our distillation of these opinions leads
    24                               A-3502-14T1
    us to conclude that the defining characteristic of a "purely
    factual inquiry" is that it "does not turn on the meaning of any
    provision of a collective-bargaining agreement." Lingle, 
    supra,
    486 U.S. at 407
    , 
    108 S. Ct. at 1882
    , 
    100 L. Ed. 2d at 420
    .
    We recognize that the question whether Hejda was "objectively
    qualified" to be reinstated as a truck driver implicates the
    recertification requirements of 
    49 C.F.R. § 391.45
    .            It is also
    true that the CBA contains provisions relevant to this regulatory
    requirement, most notably, Article 35, which states: "Physical or
    other examinations (including [DOT] physicals) required by any
    government body shall be promptly complied with by all Employees
    . . . ."   But, contrary to the arguments advanced by Bell, neither
    Hejda's claim nor Bell's defense requires the interpretation of
    any   provision   of   the   CBA.   The   requirement   that    Hejda   be
    recertified was not imposed by Bell in the exercise of its rights
    under the CBA.    It is a function of the DOT regulation which, as
    the arbitrator noted, is law that Bell is required to follow.           The
    applicable regulations, 
    49 C.F.R. §§ 391.41
    , 391.43 and 391.45,12
    are straightforward in their requirements.          To the extent an
    interpretation of them is required, federal law must be applied.
    
    1249 C.F.R. § 391.47
     provides a procedure for the resolution of
    conflicts of medical evaluations obtained by the driver and the
    employer. The record does not disclose if the parties engaged in
    this procedure or satisfied the criteria for its application.
    25                            A-3502-14T1
    As we have noted, the trial judge dismissed the complaint
    pursuant to Rule 4:6-2(a) for lack of subject matter jurisdiction,
    and did not address the other grounds advanced by Bell in its
    motion.   Accordingly, our review has been limited to that issue.
    We offer no opinion as to the merits of plaintiff's claims or any
    of the other arguments presented by Bell.    The order dismissing
    the complaint for lack of subject matter jurisdiction is reversed
    and the matter remanded.   We do not retain jurisdiction.
    Reversed.
    26                              A-3502-14T1