FRANK RIVERA VS. TOWNSHIP OF CRANFORD (L-2829-15, UNION COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4741-17T3
FRANK RIVERA,
Plaintiff-Appellant,
v.
TOWNSHIP OF CRANFORD,
Defendant-Respondent.
Argued March 3, 2020 – Decided June 12, 2020
Before Judges Yannotti, Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-2829-15.
Christopher P. Lenzo argued the cause for appellant
(Lenzo & Reis LLC, attorneys; Christopher P. Lenzo,
of counsel and on the briefs).
John E. Ursin argued the cause for respondent (Schenck
Price Smith & King, LLP, attorneys; John E. Ursin, of
counsel; Sandra Calvert Nathans, on the brief).
PER CURIAM
Plaintiff applied for a career firefighter position with defendant, Township
of Cranford. Defendant extended a conditional offer of employment to plaintiff,
subject to the results of a background investigation, drug screening, medical
examination, and psychological evaluation.
After a comprehensive evaluation, a licensed clinical psychologist
declined to recommend plaintiff for the appointment. He concluded that
plaintiff, "at this time, does not possess the psychological characteristics deemed
necessary to perform the duties of the position sought and is not considered to
be 'psychologically suited' to that position . . . ." Because plaintiff did not pass
the psychological evaluation, defendant did not appoint him to the career
firefighter position.
In August 2015, plaintiff filed a complaint alleging defendant violated the
New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by
failing to appoint him as a paid career firefighter. Count one alleged "actual
and/or perceived disability" discrimination. Count two alleged discrimination
on the basis of his military service.
The complaint factually asserted, among other things, that: (1) the LAD
"prohibits employers from requiring employees to submit to medical
examinations that are not job-related"; (2) defendant "unlawfully required
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[plaintiff] to submit to a pre-employment psychological evaluation that was not
job-related"; and (3) defendant's decision not to appoint plaintiff was based
solely upon the results of the psychological evaluation, which he purportedly
failed. The court extended the initial discovery end date twice, resulting in a
final discovery end date of September 29, 2017.
On July 26, 2017, defendant moved for summary judgment. Plaintiff
cross-moved for partial summary judgment as to liability on count one, asserting
that the LAD "requires pre-employment medical examinations to be job[-
]related and only used to screen out applicants whose disabilities prevent them
from performing the essential functions of the position," and that defendant had
not demonstrated the pre-employment psychological evaluation was job-related.
After argument on October 13, 2017, the court denied both summary
judgment motions in an oral decision. After citing to relevant LAD case law
and noting the parties' respective burdens of proof, the court found numerous
unresolved factual issues. The court noted specifically the questions of fact as
to whether defendant perceived plaintiff as having a disability when it declined
to hire him, and whether plaintiff was qualified for the appointment, in light of
subsequent favorable psychological examinations for other job applications.
A-4741-17T3
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The case was initially scheduled for trial on January 22, 2018. It was later
adjourned to February 20, 2018. On January 8, 2018, more than three months
after the September 29, 2017 discovery end date, plaintiff served an expert
report that addressed his economic losses resulting from defendant's alleged
discriminatory hiring practices. On January 17, 2018, defendant moved to bar
the expert report under Rule 4:23-5(b). Defendant asserted that the court had
twice extended the original discovery end date, the report was untimely, and it
was prejudiced because it could not depose the expert or obtain a rebuttal report
before trial.
In response, plaintiff cross-moved to extend expert discovery and adjourn
the February 20, 2018 trial date. Counsel certified he was unable to obtain the
economic expert report earlier "because of a factual misunderstanding"
concerning plaintiff's damages. He admitted he had not even discussed
economic damages with plaintiff until defendant requested a settlement demand
prior to the December 2017 mediation date.
On February 15, 2018, the court granted the motion to bar the untimely
expert report and denied plaintiff's cross-motion. The court concluded that
counsel's "honest mistake" did not constitute exceptional circumstances
warranting a reopening and further extension of the discovery period.
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The case was tried before a jury in April and May 2018. Prior to jury
selection, the parties presented several in limine motions. Pertinent to the issues
on appeal, defendant asked the court to limit the issues before the jury to the
counts in the complaint of LAD discrimination based on an actual or perceived
disability, or military service.
Defendant advised the court that plaintiff had attempted to assert a cause
of action of unlawful testing during the summary judgment arguments. Plaintiff
claimed that giving the psychological test to prospective firefighters was
unlawful because it was unrelated to the job duties. Defendant argued that
plaintiff did not have a witness or any expert to support this theory. In addition,
defendant contended plaintiff was erroneous in his assertion that it was
defendant's burden of proof to validate the test. Defendant stated that in addition
to the claim not being pled in the complaint, there was no case law supporting a
shift of the burden of proof to the municipality to prove the legality of its test.
Plaintiff responded that his challenge to the test was a form of a disability
discrimination claim, and that defendant was on notice of the claim from the
summary judgment arguments as well as from certain questions plaintiff posed
of various witnesses during depositions. He disputed the need for an expert.
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According to plaintiff, the first question on the jury verdict sheet should
be: "[D]id the defendant meet its burden of proving that the psychological test
given to [plaintiff] was related to the essential functions of the job of a paid
firefighter . . . and that it was an accurate predictor of somebody's ability to
perform those job functions[?]" If the jury answered affirmatively, plaintiff
contended they would move on to the damages question. Plaintiff's counsel
conceded there was no case law supporting his theory of burden shifting.
The court found there was no precedent to support a shifting of the burden
of proof to defendant. The parties were instructed not to address the issue of
whether the test was unlawful in their opening statements. The court stated it
would make any additional rulings if necessary, as the case unfolded.
At the close of plaintiff's case, defendant moved to dismiss count two,
asserting plaintiff had not presented any evidence to support his claim that his
military service was a factor in defendant's hiring process. In response,
plaintiff's counsel stated: "I don't think it's an actual [disability] discrimination
case [and] I don't think it's a military services discrimination case. It's a
perceived disability discrimination case, and the perception was based on the
fact that the decision makers knew he had a medical discharge from the military,
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but it's a perception of disability discrimination." Therefore, plaintiff withdrew
his actual disability and military service discrimination claims.
Defendant then moved for a directed verdict on the perceived disability
claim. Defendant argued there was no direct or circumstantial evidence that
anyone in the decision-making process "considered or perceived [plaintiff] to be
disabled . . . ." Instead, all of the evidence demonstrated that plaintiff was not
hired because of his poor performance on the psychological examination, not
because of any disability. Although plaintiff conceded there was no direct
evidence to support his claim, he argued there was sufficient circumstantial
evidence to allow the claim to proceed to a jury. The court denied the motion
for directed verdict.
Defendant again raised the issue concerning the lawfulness of the
psychological test that had been discussed at the start of the trial. Defendant
argued there was no evidence that the test was illegal or discriminatory. And
there was no basis to shift the burden to defendant to prove anything respecting
the test. Counsel stated the only facts before the jury were that the psychologist
did not recommend the hiring of plaintiff because of his performance on the
evaluation – the failure to answer the questions with honesty, the unwillingness
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to answer numerous categories of questions and plaintiff's defensive and
belligerent demeanor during the evaluation.
After a lengthy discussion, the court found that plaintiff needed an expert
to establish his theory that the psychological examination was unlawful because
it did not predict plaintiff's ability to perform effectively as a firefighter. In
addition, the court found there was no evidence, circumstantial or otherwise,
regarding this issue. Therefore, the court dismissed "the unpled claim" under
Rule 4:37-2(b).1
The jury found in favor of defendant on the perceived disability
discrimination claim. On May 9, 2018, the court entered a final judgment for
defendant and dismissed the complaint.
On appeal, plaintiff challenges the following orders: (1) the October 13,
2017 order denying his cross-motion for partial summary judgment as to liability
on count one; (2) the February 15, 2018 order granting defendant's motion to
bar plaintiff's economic expert report; and (3) the February 15, 2018 order
denying his cross-motion to extend expert discovery and adjourn the trial.
Plaintiff has not appealed the jury's verdict.
1
Plaintiff also argued briefly that defendant failed to show he was a direct
threat. The court found the argument was inapplicable as there was no evidence
that defendant was asserting this affirmative defense.
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Plaintiff asserts that the court erred in denying his cross-motion for partial
summary judgment as to liability on count one because defendant could not
prove that the pre-employment psychological examination was job-related, or
prove the elements of the direct threat defense in order to justify the
psychological examination on public safety grounds.
"In reviewing a grant or denial of summary judgment, [we are] bound by
the same standard as the trial court under Rule 4:46-2(c)." State v. Perini Corp.,
221 N.J. 412, 425 (2015) (citations omitted). That rule requires a court to grant
summary judgment if "the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 528-29 (1995) (quoting Rule 4:46-2(c)).
"The slightest doubt as to an issue of material fact must be reserved for
the factfinder, and precludes a grant of judgment as a matter of law." Akhtar v.
JDN Props. at Florham Park, LLC, 439 N.J. Super. 391, 399 (App. Div. 2015)
(citation omitted). Furthermore, "[a]ny issues of credibility must be left to the
finder of fact." Ibid. (citation omitted). Plaintiff alleged that defendant
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discriminated against him under the LAD in failing to hire him as a career
firefighter because of a perceived disability. 2
"The LAD is remedial legislation, intended 'to eradicate the cancer of
discrimination[,]' protect employees, and deter employers from engaging in
discriminatory practices." Acevedo v. Flightsafety Int'l, Inc., 449 N.J. Super.
185, 190 (App. Div. 2017) (alteration in original) (quoting Jackson v. Concord
Co., 54 N.J. 113, 124 (1969)). "[A]n employee who is perceived to have a
disability is protected just as someone who actually has a disability" under the
LAD. Grande v. St. Clare's Health Sys., 230 N.J. 1, 18 (2017) (citations
omitted); see N.J.A.C. 13:13-1.3 (explaining that a person who is perceived to
be a person with a disability, regardless of whether that person actually has a
disability, is protected by the LAD).
"[D]irect evidence of discrimination is often not found." Myers v. AT&T,
380 N.J. Super. 443, 453 (App. Div. 2005) (citation omitted). Consequently, we
evaluate the majority of claims, which involve circumstantial evidence of
discrimination, by applying the procedural burden-shifting method utilized in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); see Zive v.
2
Because plaintiff later withdrew his additional claims of discrimination, we
need only address the allegations of perceived disability.
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Stanley Roberts, Inc., 182 N.J. 436, 447 (2005); Myers, 380 N.J. Super. at 452-
53. Under that framework, plaintiff must initially prove the elements of a prima
facie case, as defined by the "particular cause of action." Victor v. State, 203
N.J. 383, 408 (2010).
In order to prove a prima facie case when alleging discrimination for
failure to hire,
[t]he 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 a position for
which the employer was seeking applicants, (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.
[Jansen v. Food Circus Supermarkets, Inc., 110 N.J.
363, 380 (1988) (quoting Andersen v. Exxon Co., 89
N.J. 483, 492 (1982)).]
"[F]or claims of disability discrimination, the first element of the prima
facie case, that plaintiff is in a protected class, requires plaintiff to demonstrate
that he or she qualifies as an individual with a disability, or who is perceived as
having a disability, as that has been defined by statute." Victor, 203 N.J. at 410.
"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.
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2019) (quoting Cowher v. Carson & Roberts, 425 N.J. Super. 285, 296 (App.
Div. 2012)); see Rogers v. Campbell Foundry Co., 185 N.J. Super. 109, 112
(App. Div. 1982) ("[T]hose perceived as suffering from a particular handicap
are as much within the protected class as those who are actually handicapped.").
Our courts characterize the prima facie burden as "rather modest." Victor,
203 N.J. at 408 (quoting Zive, 182 N.J. at 447). If the plaintiff establishes a
prima facie case, "a presumption arises that the employer unlawfully
discriminated against the plaintiff." Grande, 230 N.J. at 18 (citation omitted).
Thereafter, the burden of production shifts to the employer "to demonstrate a
legitimate business reason for the employment decision." Victor, 203 N.J. at
408 n.9. If the employer does so, then the plaintiff must show "that the reason
proffered is a mere pretext for discrimination" in order to prevail. Ibid. (citing
McDonnell Douglas Corp., 411 U.S. at 802). "The ultimate burden of
persuasion that the employer intentionally discriminated against the employee
remains with the employee at all times." Clowes v. Terminix Int'l, Inc., 109 N.J.
575, 596 (1988) (citing Andersen, 89 N.J. at 493).
To provide context for plaintiff's claim of discrimination for a perceived
disability, we furnish the following factual evidence from the summary
judgment record.
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In 2004, plaintiff began volunteering at the Township Fire Department as
part of the Explorer program, which allows minors to learn about firefighting .
The Fire Department consists of career paid firefighters and unpaid volunteer
call firefighters. Both categories of firefighters are appointed by the Township
Committee. In 2006, the Township Committee appointed plaintiff as a volunteer
call firefighter. A call firefighter is not required to undergo a psychological
evaluation prior to appointment.
The duties of paid career firefighters and unpaid call firefighters overlap
in some respects. Both perform interior firefighting during structural fires, pull
down ceilings and walls, and rescue people and animals. Both work in pairs and
are exposed to dangerous and stressful situations. However, call firefighters are
always closely supervised by career firefighters, and are limited in the duties
they can perform. They cannot drive fire trucks, operate aerial equipment,
operate the water pump or ladder, or respond to ambulance or medical transport
calls. A call firefighter is not assigned a shift or required to work a minimum
number of hours. They respond to calls when they choose to do so. In contrast,
a career firefighter must work two twenty-four hour shifts each week.
In January 2008, plaintiff enlisted in the United States Marine Corps and
took a four-year leave of absence from the Fire Department. He served in the
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Marine Corps until August 2012; at which time he was "honorably discharged
for medical reasons."
During his military service, plaintiff served in several overseas locations,
including Kuwait and Iraq. He was disciplined twice for minor infractions and
received alcohol counseling. During his service, plaintiff was diagnosed with
post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). He
underwent therapy through the Veterans Administration (VA) in 2012 and 2013
for his medical and psychological issues, and receives disability compensation
from the VA.
When plaintiff returned home in 2012, he resumed serving as a call
firefighter in the Township. He never told anyone at the Township or the Fire
Department about the reason for his medical discharge from the Marines, or that
he was diagnosed with PTSD or TBI.
However, plaintiff testified at his deposition that numerous members of
the Fire Department had expressed negative opinions about his military service
and mental health when he returned from Iraq. He recounted two firefighters
telling him that they heard "others at the firehouse . . . talking negatively" about
him before he was up for appointment "and spreading rumors" that plaintiff: had
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a dishonorable military discharge and a DUI; was an alcoholic; and "the military
gave [him] a stupid dog" because he was "crazy."
Several members of the Fire Department were deposed and asked about
the alleged negative comments and rumors. Some testified they had heard
negative comments and rumors about plaintiff after he returned from overseas,
while others denied hearing any such comments or rumors.
One firefighter, a friend, noted that plaintiff's service dog came with him
to the firehouse. He also stated that plaintiff told him and other call firefighters
that he had contemplated suicide with pills and alcohol. The firefighter denied
telling any of his superiors about that conversation. Another firefighter said he
recalled others talking negatively about plaintiff, including that he had
psychological issues and was "let go early" from the military, but no supervisors
were present during this discussion.
Several supervisors were also deposed. One, a lieutenant, testified that he
never heard any disparaging remarks about plaintiff's military service or mental
health. He did notice that plaintiff had a service dog.
The Fire Chief who extended the conditional offer of employment to
plaintiff was Leonard Dolan III. He testified that defendant has required all
career firefighter applicants to undergo psychological testing since
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approximately 1985. He stated the evaluations are job-specific to determine
whether the candidate is suitable for a firefighter position.
Before the evaluation takes place, the Institute for Forensic Psychology
(IFP) requests background information from the Fire Department about the
candidate concerning "school, work, interpersonal, family, legal, financial,
substance use, [and] mental health." The Fire Chief emails IFP the background
information based upon his personal knowledge of the candidate. If the
candidate satisfies all of the hiring requirements, the Township Committee
finalizes the appointment by majority vote.
Pursuant to this protocol, Dolan sent IFP the following email:
Frank is a single male who has been a member of our
Call Department since 2006. Frank joined the US
Marine Corps in 2008 and served out his enlistment but
I believe received a medical discharge. He was
deployed overseas. Frank does not have any
disciplinary history with the Cranford Fire Department.
I'm unsure of his military disciplinary record.
Dolan testified that he had no issues with plaintiff's performance as a call
firefighter and felt that he was qualified to be a career firefighter apart from his
failure to pass the psychological evaluation. Dolan denied hearing anyone speak
negatively about plaintiff's military service or mental health or receiving any
complaints about plaintiff's performance as a call firefighter. He testified that
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he never spoke to plaintiff about his military or medical history. He denied
speaking to the examining psychologist prior to plaintiff's evaluation.
When the psychologist called Dolan to report that he was not
recommending plaintiff for appointment, Dolan testified he was "very surprised"
that plaintiff did not pass the evaluation. If not for the poor psychological
evaluation, Dolan said he would have recommended plaintiff for appointment as
he "absolutely" wanted plaintiff to be a career firefighter in the Township.
Dolan believed that candidates with military experience, like plaintiff, were
"ideal" for the job.
Shortly after these events, Daniel Czeh became the Fire Chief. He
testified that he considered plaintiff a friend and "a good firefighter." He
acknowledged that plaintiff "seemed a little bit on edge" and "aggravated" after
he came back from his military service, but he denied any concern that plaintiff
"was a danger to anyone." He stated he met with plaintiff before the
psychological evaluation and told him not to lie and to do his best, as the Fire
Department wanted plaintiff to get the paid appointment.
Several members of the Township Committee were also deposed. They
testified that plaintiff was removed from consideration for the position due to
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the psychological test results. The members confirmed that plaintiff's failure to
pass the psychological evaluation was the only reason plaintiff was not hired.
Against this backdrop, the court considered the parties' cross-motions for
summary judgment. In denying plaintiff's cross-motion for partial summary
judgment, the court found there was a question of fact as to whether defendant
perceived plaintiff as having a disability when it declined to hire him , stating:
There's a question as to whether it was perceived
because while he didn't broadcast it . . . there is
evidence in the record that there were guys who said
we're uncomfortable with him, he's different since he
came back from Iraq. He's different. He is not the same
Frankie that we knew before he left. He was a cadet
here from 16 years old. He was a call man. He came
back as a call man. He did everything he was supposed
to do. He was a good fireman. The chief purports to
say that he wanted him. He liked the kid and he wanted
him to pass and he was surprised that he didn't pass the
psychological examination.
The court also found that questions of fact existed as to whether plaintiff
was qualified for appointment under the second and third elements of the prima
facie test given the subsequent favorable psychological evaluations for other
subsequent job applications, and that the proofs submitted as to the fourth
element were "not dispositive."
There is ample evidence in the record to support the court's denial of
plaintiff's cross-motion for partial summary judgment on count one. Plaintiff
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contends he never told anyone at the Fire Department or the psychologist about
his PTSD and TBI diagnoses or treatment for his conditions. The record
contains no other evidence to suggest that defendant knew plaintiff had an actual
disability and based its decision not to hire him on that fact. See, e.g.,
Illingworth v. Nestle U.S.A., Inc., 926 F. Supp. 482, 489-91 (D.N.J. 1996)
(holding that because the employee never told his employer about his dyslexia,
he failed to satisfy his prima facie burden to prove disability discrimination
under the LAD as he could not establish a causal connection between his
dyslexia and his termination).
To satisfy his burden on the first Victor element, plaintiff presented
evidence that other firefighters had discussed the differences they perceived in
him since his return from military service, the fact that he had a service dog and
there were rumors about his military discharge. He also relied on Dolan's email
to IFP in which he stated that he believed plaintiff had received a medical
discharge from the military. However, general negative comments about a
plaintiff's mental health do not establish that a defendant perceived a plaintiff to
be suffering from a "particular handicap" or specific disability as defined under
the LAD. Dickson, 458 N.J. Super. at 532; Rogers, 185 N.J. Super. at 112; see
N.J.S.A. 10:5-5(q).
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Moreover, plaintiff's superiors denied ever hearing about any issues
stemming from plaintiff's military service or any medical diagnoses or
treatment. There is no evidence to support the conclusion that the persons
responsible for deciding whether to appoint plaintiff as a career firefighter –
Dolan and the Township Committee – had either engaged in making or had heard
the negative comments. To the contrary, Dolan conditionally appointed him to
the position. His email only serves to raise a question of fact as to whether he
perceived plaintiff as having a disability. It is unclear from the record how
Dolan came to believe that plaintiff was discharged from the military for medical
reasons. Nonetheless, the email does not mention any specific disability, and
Dolan testified he would have recommended plaintiff for appointment but for
his failure to pass the psychological evaluation.
It cannot be disputed that numerous factual issues existed as to whether
defendant perceived that plaintiff suffered from a particular disability as defined
under the LAD. Therefore, plaintiff could not satisfy the first element of the
prima facie case test and was not entitled to partial summary judgment on that
count. The trial court's decision denying summary judgment was well-reasoned
and supported by the evidence.
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On appeal, in his reply brief, plaintiff contends that he did not need to
prove a prima facie case of actual or perceived disability discrimination because
"[t]he issue is whether [he] should have been subjected to that [psychological]
examination at all." He asserts that "[i]f the examination was unlawful,
defendant's refusal to hire [him] was also unlawful, as defendant concedes that
the examination was the only reason that it did not hire [him]."
As stated, plaintiff's complaint contained two counts; he alleged defendant
discriminated against him under the LAD because of an actual or perceived
disability, and because of his military service. As a result, the discovery
centered on those claims.
However, two years after the filing of the complaint, plaintiff asserted in
his cross-motion for summary judgment a claim that the psychological
evaluation he underwent was unlawful because it was not job-related. At oral
argument on the summary judgment motions, plaintiff's counsel argued this was
his primary LAD claim. Defendant challenged the propriety of plaintiff's
argument as the claim was never pled. The judge denied the motions, without
comment as to the newly-raised claim. The case proceeded to trial several
months later, on plaintiff's allegations of discrimination under a perceived
disability.
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We initially note that the claim of an unlawful test is a different cause of
action than those contained within the complaint. And the factual assertions
regarding the psychological evaluation in the complaint do not equate to legal
causes of action. Despite being apprised of the omission during the summary
judgment arguments, plaintiff did not seek leave to amend the complaint to
include the claim. As explained by our Supreme Court:
[T]he fundament of a cause of action, however
inartfully it may be stated, still must be discernable
within the four corners of the complaint. A thoroughly
deficient complaint--a complaint that completely omits
the underlying basis for relief--cannot be sustained as a
matter of fundamental fairness. An opposing party
must know what it is defending against; how else would
it conduct an investigation and discovery to meet the
claim?
[Bauer v. Nesbitt, 198 N.J. 601, 610 (2009).]
Nevertheless, plaintiff pursued his assertions during the trial. At the
conclusion of the evidence, the court found the contentions required expert
testimony and plaintiff's arguments were unsupported by case law. The court
dismissed "the unpled claim." However, the record does not include an order or
judgment of dismissal. "[A]ppeals are taken from orders and judgments and not
from opinions, oral decisions, informal written decisions, or reasons given for
the ultimate conclusion." Hayes v. Delamotte, 231 N.J. 373, 387 (2018); R. 2:2-
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3(a). Therefore, we decline to address plaintiff's contentions regarding the
psychological test as the issue has not been properly presented for our
consideration.
Plaintiff also asserts error in the court's February 15, 2018 orders granting
defendant's motion to bar his expert report on economic damages and denying
his cross-motion to extend discovery. He contends that exceptional
circumstances justified the late submission of the report. However, because the
jury found plaintiff did not establish any discriminatory action by defendant, it
did not reach the damages issue. Plaintiff has not challenged the jury's verdict
and therefore this contention on appeal is moot. See Redd v. Bowman, 223 N.J.
87, 104 (2015) (quoting Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J.
Super. 214, 221-22 (App. Div. 2011)) ("An issue 'is moot when our decision
sought in a matter, when rendered, can have no practical effect on the existing
controversy.'").
Affirmed.
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