NOT FOR PUBLICATION WITHOUT THE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-4751-15T2
PHILIP MARCHESANI,
Plaintiff-Appellant,
v.
J.B. HUNT TRANSPORTATION, INC.
and LAURIE PATTERSON,
Defendants-Respondents.
________________________________________________________________
Submitted September 12, 2017 – Decided October 31, 2017
Before Judges Fasciale, Sumners and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Docket No. L-0330-14.
Costello & Mains, PC, attorneys for appellant
(Deborah L. Mains, on the brief).
Weber, Gallagher, Simpson, Stapleton, Fires &
Newby, LLP, attorneys for respondents (Julie
H. Kinkopf and Joseph Goldberg, on the brief).
PER CURIAM
Plaintiff, Philip Marchesani,1 appeals from the grant of
summary judgment in favor of J.B. Hunt Transportation, Inc. (Hunt),
and Laurie Patterson (collectively defendants), and concomitant
dismissal with prejudice of his complaint alleging defendants
contravened the New Jersey Law Against Discrimination (NJLAD).2
Utilizing the de novo review applicable standard, we reverse.
Looking at the facts in the light most favorable to the non-
moving party, the record demonstrates Marchesani applied to Hunt
for a job as a truck driver and received a conditional offer of
employment on October 14, 2013; the pertinent condition required
him to obtain a medical certification proving that he was
physically qualified in accordance with United States Department
of Transportation (DOT) regulations (the regulations).3
Hunt would accept a DOT certification only from U.S.
Healthworks. To that end, Marchesani saw Healthworks' Dr. Shanti
Reddy on October 15, 2013, for a physical examination. The doctor
"temporarily disqualified" Marchesani because she needed further
information about his prescription medications - Lyrica, Dilaudid
1
Although plaintiff's surname is spelled "Marchasani" in the
Notice of Appeal, it was spelled "Marchesani" in the record of
proceedings before the motion court and the parties' other
submissions on appeal; we utilize the latter spelling.
2
N.J.S.A. 10:5-1 to -42.
3
See 49 C.F.R. § 391.41 (1970).
2 A-4751-15T2
and Percocet - and clearance from his doctor that he was able to
perform duties associated with the truck driver position because
he suffered from cervical radiculopathy; a pinched cervical nerve
caused pain in his right arm. Until the doctor received the
requisite information, she testified in her deposition, the
certification would be put "on hold."
Dr. Reddy never issued a certification for Marchesani because
she did not receive the information she requested. Hunt rescinded
the conditional offer on November 11, 2013. In answers to
interrogatories, defendants admitted Marchesani's offer "was
rejected because he failed to provide the requested medical
documentation necessary to complete and pass the required DOT
physical, making him not qualified for employment" under federal
regulations.
On February 14, 2014, Marchesani filed a complaint alleging
discrimination under the NJLAD. The trial court granted summary
judgment finding Marchesani did not establish a prima facie case
that he was qualified for the position because he did not comply
with the regulations by obtaining a medical certification. The
trial court also found the evidence showed the doctor to whom
Marchesani was sent by Hunt to obtain the certification informed
him about the information she needed to issue the certification.
3 A-4751-15T2
On appeal, Marchesani contends that he was qualified for the
position despite the lack of medical certification. He also
contends that a dispute exists as to whether anyone told him what
he needed to provide to be certified. Defendants, in opposition,
contend that Marchesani's failure to obtain a certification
precludes him from establishing a prima facie case that he was
qualified for the position. Alternatively, defendants assert, as
non-discriminatory reasons for withdrawing Marchesani's employment
offer, that he did not provide information necessary to issue his
certification, and that he made statements on a 2011 Social
Security Disability application that show he was not qualified.
We reverse the order granting summary judgment because there
is sufficient evidence, viewed in the light most favorable to
Marchesani, from which a reasonable factfinder could discredit
defendants' reasons for rescinding Marchesani's conditional offer
of employment, and infer that defendants' action was motivated by
discriminatory reasons.
We recognize summary judgment should be granted if the court
determines "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." R. 4:46-2(c). We consider whether the
competent evidential materials presented, when viewed in the light
most favorable to the non-moving party in consideration of the
4 A-4751-15T2
applicable evidentiary standard, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor
of the non-moving party. Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). We review the trial court's decision
in these matters de novo, and afford the trial court ruling no
special deference. Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co., 224 N.J. 189, 199 (2016).
Some basic principles inform our review. "All employment
discrimination claims require the plaintiff to bear the burden of
proving the elements of a prima facie case." Victor v. State, 203
N.J. 383, 408 (2010). Our Supreme Court adopted the elements
required to establish a prima facie case of unlawful discrimination
announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Peper v. Princeton Univ.
Bd. of Trs., 77 N.J. 55, 82-83 (1978); Goodman v. London Metals
Exch., Inc., 86 N.J. 19, 31 (1981). A plaintiff meets this initial
burden in an NJLAD case by establishing:
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.
5 A-4751-15T2
[Andersen v. Exxon Co., U.S.A., 89 N.J. 483,
492 (1982).]
Defendants claim, and the motion judge found, Marchesani did
not prove he was qualified for the position because he did not
provide the required DOT certification. Marchesani did, however,
offer competent evidence – a report from John Kirby, M.D., and a
Worknet Medical Examination Report – that he was qualified for the
job.
Dr. Kirby conducted a physical examination and reviewed
Marchesani's medical history and opined:
Mr. Marchesani has no cardiac, pulmonary,
renal, neurological, musculoskeletal,
endocrine, gastroenterological,
dermatological, or urological problems - - -
by history or physical examination - - - that
would preclude gainful employment as a truck
driver under §391.41: Physical qualifications
for drivers.
In the November 11, 2013 Worknet report, Paul DeJoseph, D.O.,
concluded after examination that Marchesani met the standards set
forth in the regulations for a one-year period.
Only a modest showing is necessary to establish a prima facie
case. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005).
The proffered evidence, considered in the light most favorable to
Marchesani, sufficiently established a dispute whether he was
qualified under the regulations as of November 11, 2013, the date
6 A-4751-15T2
Hunt told him he was not going to be hired.4 Contrary to the
motion judge's ruling, Marchesani did not have to have a DOT
certification at the time Hunt made the adverse determination. He
need only establish he could have obtained one on that date.
We find no merit in defendants' additional arguments that Dr.
Reddy did not receive the Worknet evaluation; Hunt only accepted
certifications from U.S. Healthworks; Dr. Kirby did not address
Marchesani's use of Lyrica, Dilaudid or Percocet5 or his cervical
radiculopathy. R. 2:11-3(e)(1)(E). While such arguments may
ultimately prevail before a jury, defendants are not entitled to
summary judgment as a matter of law.
When a plaintiff makes out a prima facie case of
discrimination we apply the burden-shifting methodology
articulated in McDonnell Douglas. Zive, supra, 182 N.J. at 447-
50; Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595-96 (1988).
4
The motion judge found, "Dr. Reddy herself acknowledged that she
never concluded Mr. Marchesani to be physically incapable of
performing the job," and that the doctor's testimony "would seem
to indicate that [he] may have been physically qualified for the
position . . . in terms of true physical capabilities," although
she did not find the doctor's testimony proved he was "physically
capable of the job."
5
Dr. Kirby's report indicates he knew Marchesani took Lyrica for
diabetic neuropathy, and knew he contended that he discontinued
the use of Dilaudid and Percocet at the time he applied to Hunt.
7 A-4751-15T2
The burden shifts to the employer to state a legitimate reason for
denying employment. Zive, supra, 182 N.J. at 449.
The Court, in Zive, cited with approval the procedure utilized
in the Third Circuit that:
if the employer proffers a non-discriminatory
reason, plaintiff does not qualify for a jury
trial unless he or she can "point to some
evidence, direct or circumstantial, from which
a factfinder could reasonably either (1)
disbelieve the employer's articulated
legitimate reasons; or (2) believe that an
invidious discriminatory reason was more
likely than not a motivating or determinative
cause of the employer's action."
[Id. at 455-56 (quoting Fuentes v. Perskie,
32 F.3d 759, 764 (3d Cir. 1994)); see also
Bergen Commer. Bank v. Sisler, 157 N.J. 188,
211 (1999) (citation and internal quotation
marks omitted) (noting "[a]n employee may meet
this burden either by persuading the court
directly that a discriminatory reason more
likely motivated the employer or indirectly
by showing that the employer's proffered
explanation is unworthy of credence").]
Defendants proffer two non-discriminatory reasons why they
did not hire Marchesani: they could not employ him without a DOT
certification from Dr. Reddy as required by the regulations, which
he failed to obtain; and the statements he made in connection with
a Social Security disability application showed he was not
qualified for the position.
The burden, therefore, shifts to Marchesani "to prove by a
preponderance of the evidence that the reason[s] articulated by
8 A-4751-15T2
the employer [were] merely a pretext for discrimination and not
the true reason[s] for the employment decision." Zive, supra, 182
N.J. at 449 (citing Clowes, supra, 109 N.J. at 596). To avoid
summary judgment, "plaintiff's evidence rebutting the employer's
proffered legitimate reasons must allow a factfinder reasonably
to infer that each of the employer's proffered non-discriminatory
reasons, . . ., was either a post hoc fabrication or otherwise did
not actually motivate the employment action (that is, the proffered
reason is a pretext)." Kelly v. Bally's Grand, Inc., 285 N.J.
Super. 422, 431 (App. Div. 1995) (alteration in original) (quoting
Fuentes, supra, 32 F.3d at 764).
An examination of the evidence leads us to conclude that
Marchesani has provided sufficient evidence to avoid summary
judgment. First, there is evidence that creates a dispute whether
Dr. Reddy directly advised Marchesani about the information she
needed or if she communicated indirectly via defendant Laurie
Patterson, an administrative assistant employed by Hunt, thus
supporting an inference that Patterson, who communicated with
Marchesani exclusively about the position, withheld information
that was critical to obtaining the requisite certification.
Dr. Reddy testified she required information detailing
Marchesani's prescriptions for Dilaudid and Percocet. Dr. Reddy
deposed that she asked Patterson to get information "about Dilaudid
9 A-4751-15T2
and the M.D. who prescribes any of these medications, Dilaudid,
Percocet or Oxycontin or any other narcotics that he's taking."
Dr. Reddy testified she believed she received forms from Patterson
that referenced Marchesani's prescriptions for, among other drugs,
Oxycontin and Percocet, but not Dilaudid. She said she never
learned the name of the physician who prescribed the Dilaudid –
information the doctor admitted she needed in order to "pass him."
When asked if there was "anything else" besides receipt of
the bottle for Dilaudid that prevented her from "passing . . .
Marchesani in his DOT exam," Dr. Reddy said she did not believe
she received clearance from Marchesani's doctor regarding his
cervical radiculopathy. Further, although she acknowledged
receipt of a note from a medical professional she variously
described as a registered nurse or nurse practitioner regarding
his prescription for Lyrica, Dr. Reddy said she needed a note from
a doctor – not a nurse practitioner or registered nurse –
explaining why Lyrica was prescribed for Marchesani. She "needed
to make sure that he didn't have any . . . issues with that because
he would be driving, and his lower extremities would be of concern
for diabetic neuropathy . . . ." She also needed to confirm that
Lyrica was not prescribed because Marchesani suffered a brain
injury or had "any history of partial seizures or epilepsy." At
10 A-4751-15T2
the conclusion of her deposition, she said she never received
clearance from a doctor.
If Dr. Reddy received the information about the Dilaudid and
cervical radiculopathy, she said she would "assess it and go from
there."6 She would have cleared Marchesani if a doctor authorized
him to perform the work required of a truck driver.
Marchesani contends Dr. Reddy never told him what information
he needed to provide in order to obtain medical clearance; he
avers any communication regarding that issue was made through
Patterson and that he complied with all of her requests.
The record buttresses his position, manifesting a disputed
fact that precludes judgment as a matter of law. When Dr. Reddy
was asked if she communicated to Marchesani about the information
she needed, most of her answers were equivocal. She couched some
of her deposition answers in dubitable terms, saying, "I might
have discussed" the information with him.
On one occasion she did not recall if she spoke directly to
Marchesani "about the issue with the Dilaudid." On another she
remembered asking him for "copies of his medications" because he
disclosed he took Dilaudid and Percocet, and explained:
6
The doctor did not say, at that point, she still needed
information about Marchesani's use of Lyrica or his diabetic
neuropathy.
11 A-4751-15T2
So based on my usual practice, when
somebody reveals something like that to me
. . . I usually tell them if you have that
information, come back and let us know, or if
you have details on that medication, come back
and let us know, and I will instruct the
medical assistant in the front to get whatever
information that they come back with and to
write them down.
She did not recall if she spoke only with Patterson, or with
Marchesani, after she received notes and documents that she
requested
because sometimes we do talk to patients,
sometimes they give us calls and we talk to
them, or sometimes we call them if we think
the personnel is unable to convey that
properly to the patient, . . . but I don't
recall in this particular instance if I did
talk to him, or J.B. Hunt personnel did.
Either way, I can't be 100 percent.
When shown a form setting forth the information she required,
Dr. Reddy said it was "usually hand[ed] over to the patient" but
did not know if she or a medical assistant handed it to Marchesani,
saying, "[O]ne of us would have." She talked of her usual
practices in concluding that someone in her office provided the
form to Marchesani.
She spoke of her usual practices again when asked if the
needed information was conveyed by the doctor directly to
Marchesani or through Patterson and other Hunt employees:
The day of the exam I would have definitely
told him that because that's how I usually
12 A-4751-15T2
practice. I clearly tell them what they need.
Sometimes patients do forget, however, I
always make sure that they understand, and the
paper is given to them, and we offer to fax
it from J.B. Hunt facility right away if they
have the fax number of the medical doctor that
they recall, or if they don't recall, we ask
them to get it from their family, whatever
needs to be done, we get that information, and
we fax it to the doctors, doctor or doctors,
from the facility.
So I know that's how, either it would
have been done on the day that he was examined
or maybe the day after . . . .
Dr. Reddy's deposition testimony supports Marchesani's
contention that the doctor used Patterson as a conduit for
information. As defendants concede in their brief, Dr. Reddy
"asked for the name of the doctor who prescribed the Dilaudid; for
clearance that the Lyrica was being taken for diabetic neuropathy
and not seizures; and for clearance from his doctor that he could
drive, load and unload despite his cervical radiculopathy." Dr.
Reddy admitted she asked Patterson for information about Dilaudid
and other drugs taken by Marchesani. Dr. Reddy testified that she
attached a post-it note to an October 30, 2013 letter directed to
Hunt personnel and requested the name of the doctor who prescribed
Dilaudid; Patterson was the person with whom the doctor was
corresponding at the time. She believed she told Patterson about
the medical clearance needed from his doctors.
13 A-4751-15T2
This evidence is sufficient to permit a factfinder reasonably
to infer that Dr. Reddy did not directly tell Marchesani all of
the information that was needed for the certification, and that
Patterson was the means by which the doctor sought to communicate
with him.
There is evidence that Patterson told Marchesani about some
items needed for medical clearance. By letter dated October 21,
2013, Patterson advised him to send a picture of the bottle in
which his Dilaudid prescription was packaged.7 Marchesani
testified at his deposition that among the items Patterson asked
him to provide were "five years of the prescription[s]" he took
and pictures of the prescription containers.
The motion judge dismissed Marchesani's assertion that he did
not know what information he needed to provide, finding he
"testified to being informed about needing all the medications he
listed and specifically about the Dilaudid. This testimony reveals
that [he] was told about the information needed on the Dilaudid,
and that the Defendants did not withhold that information from
him."
The portions of the deposition transcript cited by the judge
do not address the information the doctor required regarding
7
Marchesani testified he believed he was advised of the need for
the picture by phone.
14 A-4751-15T2
Marchesani's medical conditions, particularly his cervical
radiculopathy, information Marchesani says he was never asked to
provide.
Further, the timing of the events following the October 15,
2013 exam establishes a disputed fact whether defendants used the
lack of certification as a pretext to discriminate against
Marchesani.
Patterson requested a picture of the Dilaudid bottle from
Marchesani, whether by letter or telephone call, on October 21.
Marchesani signed a statement dated October 23 on Hunt letterhead
that he was "no longer taking or being prescribed" Dilaudid or
Percocet. Dr. Reddy testified about the October 30 letter to
which she attached a post-it note requesting the name of the doctor
who prescribed Dilaudid, Percocet, and Oxycontin to Marchesani;
she said she was corresponding with Patterson at the time she
wrote the note. Dr. Reddy did not remember if Patterson responded
to the post-it note, but did remember that Patterson provided
"medication forms" after that time which contained information
about Percocet and Oxycontin, but not Dilaudid. Marchesani had
provided a printout from Shop Rite of his prescriptions. Dr.
Reddy said she would have asked Patterson "to specifically get the
information for the Dilaudid, and . . . would hold off until the
Dilaudid information is back to us." As the motion judge noted,
15 A-4751-15T2
"Dr. Reddy did not recall . . . Patterson ever providing the
information afterwards."
Dr. Reddy testified she had several conversations with
Patterson. When asked to tell what she recalled about them, she
said:
Mainly it was because she would tell me that
[Marchesani is] getting frustrated that he is
not being cleared, and I would tell her . . .
I need the information as to who the M.D. is,
who is prescribing it, and if he has the
Dilaudid on him and just sends us a picture
of the Dilaudid. Just because he sent those
pictures of these, I would have asked her to
get a picture of Dilaudid as well, the
medication bottle.
The record is unclear when, between October 15 and November 11,
those conversations took place. But, the evidence does establish
Dr. Reddy needed information in order to clear Marchesani and told
Patterson about that information; Marchesani provided a list of
medications pursuant to Patterson's request; and Dr. Reddy did not
receive the necessary information about the Dilaudid and the
medical clearance from a doctor.
The activities on October 21 and 23; the exchanges between
Dr. Reddy and Patterson; and Marchesani's provision of the list
of medications, the pictures of the Percocet and Oxycontin bottles,
and the October 23 letter about his discontinuance of Dilaudid and
Percocet, point to ongoing efforts to supply Dr. Reddy with the
16 A-4751-15T2
information she required. The delay, the frustrated inquiries by
Marchesani, and the abrupt rescission of the conditional offer on
November 11 is evidence from which a reasonable factfinder could
infer that, despite Marchesani's ongoing efforts to supply Dr.
Reddy with the required information, Patterson did not convey to
Marchesani the need for, at least, the medical clearance from his
doctors in an effort to delay the issuance of the certification,
giving Hunt time to consider his medical condition as initially
conveyed by Marchesani to the doctor, and rescind the conditional
offer. It is evidence from which a factfinder could both
disbelieve defendants' stated reasons, and believe Marchesani's
medical issues were the reason he was not hired. If defendants
did not convey the need for that information to Marchesani so that
Dr. Reddy could not issue the DOT certification, the inference
that defendants used the lack of certification as a pretext to
deny him employment because of his disability is reasonable,
considering the record established.
We note Marchesani contends he delivered what Patterson
requested. It is obvious Marchesani did not show the doctor – or
anyone else – the Dilaudid bottle, or a picture of same; he never
took the drug. He realized that at his deposition. Since,
however, he mistakenly thought he complied with defendants' prior
requests regarding that drug, it can be inferred the alleged
17 A-4751-15T2
intentional failure by defendants to communicate with Marchesani
kept him from clarifying the discrepancy, and that his application
was rejected before he had the opportunity to clear that issue.
The evidence in the record also belies defendants' second
proffered non-discriminatory reason, that statements Marchesani
allegedly made in connection with his social security application
showed he was not qualified for the job. The application was
submitted in 2011. It is not indicative of Marchesani's physical
condition when he applied to Hunt, or his fitness to perform
necessary duties for that job. Dr. Reddy admitted that she did
not determine Marchesani was unfit and that she would have
"absolutely" cleared him if she received the medical clearance and
Dilaudid information, notwithstanding his past use of Dilaudid and
Percocet, or his cervical radiculopathy, or his diabetes. A
reasonable finder of fact could determine Marchesani's statements
to social security were not the reason for the decision to deny
him employment.
The evidence that could reasonably be inferred by a factfinder
should have been credited by the motion judge as disputed facts
which precluded the entry of summary judgment. We are compelled
to reverse, reinstate Marchesani's complaint, and remand this case
to the trial court for further proceedings. We do not retain
jurisdiction.
18 A-4751-15T2
19 A-4751-15T2