JOSHUA MCLAURIN VS. GENERAL NUTRITION CENTERS, INC. (L-0490-13, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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,

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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

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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.

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 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

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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.

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 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).

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 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

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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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