NOT FOR PUBLICATION WITHOUT THE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-1637-15T4
JOSHUA MCLAURIN,
Plaintiff-Appellant,
v.
GENERAL NUTRITION CENTERS,
INC. AND GENERAL NUTRITION
CORPORATION,
Defendants-Respondents.
______________________________
Submitted March 8, 2017 – Decided May 25, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Sussex County, Docket
No. L-0490-13.
Morris, Downing & Sherred, LLP, attorneys for
appellant (Paul G. Hunczak, of counsel and on
the briefs; Douglas C. Gray, on the briefs).
Margolis Edelstein, attorneys for respondents
(Emery J. Mishky, of counsel; Victoria J.
Adornetto, on the brief).
PER CURIAM
In this employment matter, plaintiff Joshua McLaurin asserted
claims against defendants General Nutrition Centers, Inc. and
General Nutrition Corporation (collectively GNC) under the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,
for failure to accommodate, wrongful termination, failure to
engage in the interactive process, and retaliation. Plaintiff
alleged he had requested a one-month medical leave "for medical
stabilization of a mental health condition and treatment of a knee
injury," and was terminated "because of his temporary disabilities
and/or because of his request and need for a temporary leave to
seek treatment for these disabilities."
The trial court granted summary judgment to GNC, finding that
plaintiff showed he had a disability for purposes of the LAD, but
failed to show he requested an accommodation. We disagree with
the court's first finding, but agree with the second. Accordingly,
we affirm.
"[W]e review the trial court's grant of summary judgment de
novo under the same standard as the trial court." Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016) (citation omitted). Thus, we consider, as the trial court
did, "whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are
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sufficient to permit a rational factfinder to resolve the alleged
disputed issue in favor of the non-moving party." Davis v.
Brickman Landscaping Ltd., 219 N.J. 395, 406 (2014) (quoting Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "If
there is no genuine issue of material fact, we must then 'decide
whether the trial court correctly interpreted the law.'" DepoLink
Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.
325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc.,
396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195
N.J. 419 (2008)). We review issues of law de novo and accord no
deference to the trial judge's conclusions on issues of law.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Because the court's ruling in this case involved an issue of
law, our review is de novo. On de novo review, we are not bound
by the trial's court's factual findings and conclusions and may
make our own findings and conclusions based upon the record below.
Grasso v. Borough Council of Glassboro, 205 N.J. Super. 18, 25
(App. Div. 1985), certif. denied, 103 N.J. 435 (1986).
Accordingly, we derive the following facts from our de novo review
of the evidence submitted by the parties in support of, and in
opposition to, the summary judgment motion, viewed in the light
most favorable to plaintiff. Angland v. Mountain Creek Resort,
3 A-1637-15T4
Inc., 213 N.J. 573, 577 (2013) (citing Brill, supra, 142 N.J. at
523).
In 2009, plaintiff's treating physician, Anthony DePaola,
M.D., diagnosed him with anxiety disorder and began prescribing
Xanax on an as-needed basis for panic attacks. In 2010, Dr.
DePaola treated plaintiff for a right knee injury.
On November 20, 2012, plaintiff began his employment with GNC
as a part-time sales associate at a store in Montague. The record
does not reveal that plaintiff notified GNC of his mental health
or physical condition. Plaintiff claimed that he re-aggravated
his knee injury in early 2013, but the record does not reveal he
notified GNC of this event.
In January 2013, plaintiff was promoted to store manager and
began a ninety-day probationary period. He began taking Xanax
every day for panic attacks.
On March 15, 2013, plaintiff closed the store during business
hours without GNC's approval. GNC's disciplinary policy provided
that an employee was subject to discharge for an unauthorized
closing of a store without proper, advance notification. When
confronted about the store closure, plaintiff said he was allergic
to bees and there were bees in the store. Because GNC Human
Resources personnel considered an allergy to bees an extenuating
circumstance, plaintiff was not discharged. However, subsequent
4 A-1637-15T4
inspections by a pest control company did not reveal any live bee
or wasp activity inside the store, and plaintiff admitted during
his deposition that he was not allergic to bees. Nonetheless, GNC
did not discharge him for the unauthorized store closing.
Plaintiff was scheduled to be off from work on March 16 and
17, 2013. He claimed that by March 17, 2013, he was suffering
from twice-weekly panic attacks and constant knee pain, and decided
he needed immediate treatment. On March 17, 2013, he advised his
direct supervisor, Joseph Zaijek, that he would be absent from
work on March 18, 2013, because he was sick and in need of a
doctor, and that he had arranged for coverage for the store and
would keep Zaijek updated. Plaintiff also advised his manager,
John Tosar, of his absence. The record does not reveal that
plaintiff advised Zaijek or Tosar of the nature and extent of his
illness.
GNC's attendance policy required employees who were absent
for five or more consecutive scheduled work days to submit a
doctor's note to their supervisor as a prerequisite to return to
work. On March 18, 2013, Tosar contacted plaintiff to inquire
about plaintiff's return to work. Plaintiff responded, "[u]nsure
at the moment it is pending due to my medical condition." Tosar
advised plaintiff that he could not return to work unless he
provided a doctor's note one day before returning.
5 A-1637-15T4
On March 19, 2013, plaintiff advised GNC's human resources
manager, Charmelle Hall, that he planned to return to work by
March 22, 2013. Hall reminded plaintiff he had to submit a
doctor's note authorizing him to return to work. Plaintiff said
he would submit a doctor's note by March 21, 2013.
Plaintiff saw Dr. DePaola on March 21, 2013. That same day,
plaintiff faxed to Tosar and Hall a copy of a note handwritten on
Dr. DePaola's prescription pad that did not clear plaintiff to
return to work on March 22, 2013. Rather, the note indicated that
plaintiff would be out of work indefinitely. The note stated
"Excuse [plaintiff] from work 3/18/13 thru 4/20/13 when he will
be reevaluated." Plaintiff provided no other medical
documentation to GNC and did not authorize or ask Dr. DePaola to
communicate with GNC. Plaintiff admitted that he never
affirmatively communicated to GNC that he was suffering, or had
previously suffered, from a physical or mental health disability.
He also admitted that prior to leaving work on March 15, 2013, he
never requested any specific, special accommodation for a physical
or mental health condition.
Hall advised plaintiff that he was not eligible for benefits
under the Family Medical Leave Act, and that his job was not
protected and he could contact Tosar for re-hiring. On March 25,
2013, GNC issued a Separation Report, which indicated that
6 A-1637-15T4
plaintiff had voluntarily resigned for medical reasons, effective
March 15, 2013. The report recommended plaintiff's re-hiring.
Plaintiff never contacted GNC to be rehired. Instead, on September
11, 2013, he filed a complaint in the Law Division.
Despite GNC's discovery demands, plaintiff did not produce
documents he intended to rely on at trial, identify fact or expert
trial witnesses, or produce expert reports. Following the close
of discovery, GNC filed a motion for summary judgment, arguing
that plaintiff failed to prove he had a disability or that he had
requested an accommodation.
In opposition, plaintiff appended Dr. DePaola's March 21,
2013 office notes to his opposition brief with no supporting
affidavit from the doctor authenticating the documents. The office
notes indicated that plaintiff saw Dr. DePaola on March 21, 2013,
complaining of knee pain, anxiety, panic attacks, depression,
frequent crying, mood changes, and nervousness, and that the
treatment plan was for plaintiff to be out of work from March 18
to April 20, 2013.
At oral argument, plaintiff's counsel represented that Dr.
DePaola would testify at trial. However, plaintiff did not amend
his discovery responses to identify the doctor as a fact or expert
witness, and did not produce an expert's report. We reject
plaintiff's argument on appeal that he had no obligation to provide
7 A-1637-15T4
this information because GNC did not submit Rule 4:17-4(e)
interrogatories. In its request for the production of documents,
GNC specifically requested documents plaintiff intended to rely
upon at trial; reports of any experts he intended to call at trial;
and a list of trial witnesses and a summary of the facts their
testimony would establish. Plaintiff did not provide this
information in his response to the document demand, and did not
amend his responses. See R. 4:18-1(b)(3).
We also reject plaintiff's argument that Dr. DePaola could
testify at trial as his treating physician. "[I]n an appropriate
setting, the testimony of a treating physician may be admitted to
support a plaintiff's LAD disability claim, provided that the
proponent of the testimony provides notice and responds to
discovery requests in accordance with the court rules, and the
testimony satisfies N.J.R.E. 701 and other applicable Rules of
Evidence." Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 580
(2016) (emphasis added) (citations omitted). Plaintiff provided
no notice that Dr. DePaola would testify at trial and did not
respond to GNC's discovery requests for this information.
Relying on Dr. DePaola's office notes appended to plaintiff's
brief, the court gave plaintiff all favorable inferences and found
plaintiff showed he had a disability for purposes of the LAD. This
was error.
8 A-1637-15T4
Rule 4:46-5 provides as follows, in pertinent part:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations
or denials of the pleading, but must respond
by affidavits meeting the requirements of
[Rule] 1:6-6 . . . setting forth specific
facts showing that there is a genuine issue
for trial.
[(Emphasis added).]
Rule 1:6-6 requires facts not appearing of record or not judicially
noticeable to be supported by "affidavits made on personal
knowledge, setting forth only facts which are admissible in
evidence to which the affiant is competent to testify[.]"
Appending documents to a brief with no affidavit or testimony
properly authenticating them does not constitute compliance with
Rule 1:6-6. Celino v. General Accident Ins., 211 N.J. Super. 538,
544 (App. Div. 1986) (noting that critical documents which are
alleged to support facts upon which a motion for summary judgment
is based must be submitted "to the court by way of affidavit or
testimony"). Moreover, counsel's presentation of facts which are
neither of record, judicially noticeable, nor stipulated, by way
of statements in a supporting brief and oral argument do not
constitute cognizable facts. See Gonzalez v. Ideal Tile Importing
Co., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J.
415 (2005).
9 A-1637-15T4
Here, there was no affidavit or testimony from Dr. DePaola
authenticating his handwritten note and office notes, as required
by Rule 1:6-6. Accordingly, the record lacked competent evidence
to support a finding that plaintiff had a disability under the
LAD. Summary judgment in GNC's favor was appropriate on this
basis. Even if Dr. DePaola had authenticated his handwritten note
and office notes, summary judgment was still appropriate.
The LAD prohibits employment discrimination on the basis of
a disability "unless the nature and extent of the disability
reasonably precludes the performance of the particular
employment." N.J.S.A. 10:5-4.1; see also Potente v. County of
Hudson, 187 N.J. 103, 110 (2006). To establish a prima facie case
of handicap discrimination, the plaintiff must show that: (1) he
or she was handicapped or disabled within the meaning of the LAD;
(2) he or she was qualified to perform the essential functions of
the position of employment, with or without accommodation; (3) he
or she suffered an adverse employment action because of the
handicap or disability; and (4) the employer sought another to
perform the same work after plaintiff had been removed from the
position. Gerety v. Atlantic City Hilton Casino Resort, 184 N.J.
391, 399 (2005).
In order to survive a motion for summary judgment arising out
of a claim of disability discrimination, a plaintiff must establish
10 A-1637-15T4
a prima facie case of discrimination with proof, in the first
instance, of a disability. Clowes v. Terminix Int'l, Inc., 109
N.J. 575, 597 (1988). Failure to establish the existence of a
disability is fatal to a claim of disability discrimination
irrespective of proof of the remaining elements of a disability
discrimination claim. See Viscik v. Fowler Equip. Co., 173 N.J.
1, 15 (2002) (noting "the threshold inquiry in a handicapped
discrimination discharge case is whether the plaintiff in question
fits the statutory definition of 'handicapped'").
Under N.J.S.A. 10:5-5(q), there are two specific categories
of handicap: physical and non-physical. The physical and non-
physical clauses of the statute are distinct from each other and
provide separate ways of proving handicap. Ibid. To prove a
physical handicap, a plaintiff must prove that he or she has a
"physical disability, infirmity, malformation or disfigurement
which is caused by bodily injury, birth defect or illness . . .
which prevents the normal exercise of any bodily . . . functions
or is demonstrable, medically . . . by accepted clinical or
laboratory diagnostic techniques." N.J.S.A. 10:5-5(q) (emphasis
added). To prove a non-physical handicap
a plaintiff must prove that he or she is
suffering (1) from any mental, psychological
or developmental disability (2) resulting from
an anatomical, psychological, physiological
or neurological condition that either (a)
11 A-1637-15T4
prevents the normal exercise of any bodily or
mental functions or (b) is demonstrable,
medically or psychologically, by accepted
clinical or laboratory diagnostic techniques.
[Viscik, supra, 173 N.J. at 16 (citations
omitted).]
"A plaintiff claiming a mental disability has the burden to
prove that disability. 'Where the existence of a handicap is not
readily apparent, expert medical evidence is required.'"
Wojtkowiak v. N.J. Motor Vehicle Comm'n, 439 N.J. Super. 1, 15
(App. Div. 2015) (quoting Viscik, supra, 173 N.J. at 16); see also
Clowes, supra, 109 N.J. at 597 (rejecting a plaintiff's disability
claim because there was no expert medical evidence he was an
alcoholic). "Similarly, a plaintiff has the burden to show the
extent of the mental disability if the extent is relevant to the
accommodations requested or offered." Wojtkowiak, supra, 439 N.J.
Super. at 15.
Dr. DePaola's handwritten note and office notes did not prove
that plaintiff had a disability under the LAD. The documents did
not confirm that plaintiff had a physical disability that prevented
the normal exercise of any bodily functions, or was verifiable
medically by accepted clinical or laboratory diagnostic
techniques. The documents also did not confirm the nature or
extent of plaintiff's alleged mental disability, or that this
disability prevented the normal exercise of any mental functions.
12 A-1637-15T4
N.J.S.A. 10:5-5(q). Accordingly, plaintiff failed to prove he had
a disability under the LAD. Summary judgment in GNC's favor,
therefore, was appropriate.
For the sake of completeness, we address plaintiff's failure
to accommodate claim. Under the LAD, an employer has an obligation
to attempt to reasonably accommodate an employee's physical or
mental disability. Raspa v. Office of Sheriff of County of
Gloucester, 191 N.J. 323, 339 (2007). This obligation is only
triggered when the employer is made aware of the handicap and the
employee requests an accommodation. Tynan v. Vicinage 13 of the
Superior Court of N.J., 351 N.J. Super. 385, 400-01 (App. Div.
2002). The request need not be in writing and the employee is not
required to utter the words "reasonable accommodation." Id. at
400. However, the request must be sufficiently clear that it
conveys to the employer the employee's request that an
accommodation be attempted to address the employee's disability.
Id. at 400. Once the employee has conveyed the accommodation
request to the employer, "both parties have a duty to assist in
the search for appropriate reasonable accommodation and to act in
good faith." Ibid. (citation omitted).
Plaintiff admitted that he never affirmatively communicated
to GNC that he was suffering, or had previously suffered, from a
physical or mental health disability. He also admitted that prior
13 A-1637-15T4
to leaving work on March 15, 2013, he never requested any specific,
special accommodation for a physical or mental health condition.
Dr. DePaola's handwritten note conveyed that plaintiff required a
month off from work, but it did not make GNC aware of any physical
or mental disability that required GNC to provide an accommodation
under the LAD. Consequently, plaintiff's accommodation claim
fails as a matter of law.
Affirmed.
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