On appeal from Division of Civil Rights, Department of Law and Public Safety.
Allcorn, Morgan and Horn. The opinion of the court was delivered by Morgan, J.A.D. Horn, J.A.D., concurring.
This employment discrimination case raises several questions of novel import concerning N.J.S.A. 10:5-4.1, the amendment to the Law Against Discrimination (N.J.S.A. 10:5-1 et seq.), effective August 1, 1972, which proscribes discrimination and discriminatory employment practices against the physically handicapped. The provision, central to this case, reads as follows:
All of the provisions of the act to which this act is a supplement shall be construed to prohibit any unlawful discrimination against any person because of the physical handicap of such person or any unlawful employment practice against such person, unless the nature and extent of the handicap reasonably precludes the performance of the particular employment.
Reference herein will also be made to another provision of the Law Against Discrimination, N.J.S.A. 10:5-2.1, which, as pertinent, reads:
Nothing contained in this act or in the act to which this is a supplement shall be construed * * * to prevent the termination or change of the employment of any person who in the opinion of his employer, reasonably arrived at, is unable to perform adequately his duties, nor to preclude discrimination among individuals on the basis of competence, performance, conduct or any other reasonable standard, * * *.
The present controversy had its inception with the refusal of the employer, C. V. Hill Refrigeration (hereinafter appellant), to rehire complainant Carmelo Panettieri, a former employee, after his recovery from a heart attack. Following a five-day hearing before the Division of Civil Rights, appellant was found to have been in violation of N.J.S.A. 10:5-4.1 and was ordered to reinstate Panettieri to his job with back pay, mandatory overtime, expenses, interest and humiliation damages. Appellant's motion to reopen the hearing based upon alleged fraud committed during the hearings and newly discovered evidence was denied. This appeal ensued.
In his quest for reinstatement following his recovery from a heart attack, Panettieri first met with Anthony Minieri, Hill's employment manager, to whom he gave a certificate of medical clearance from Dr. Jaferi, his treating physician. He was then referred to the infirmary where he spoke to Dr. John Flood, the plant physician. Although Dr. Flood failed to administer even a cursory physical examination, confining himself to questioning Panettieri as to how he felt and what medication he was using, he issued, on a company form, his recommendation of "no prolonged, persistent physical jobs like ones that require constant motion. No lifting, pulling or pushing loads above 25 pounds." According to Flood, this recommendation was based upon his experience, Dr. Jaferi's certificate and the recommendations
previously made by his predecessor in similar cases. He admitted unfamiliarity with Panettieri's job classification and with the nature of the job he had previously been doing. Indeed, the last time he had toured the plant was some ten years before his encounter with Panettieri.
Returning to Minieri with Flood's recommended limitations on the work he could do, Panettieri was told that there was no more work for him at the plant, presumably because of Flood's limitations and because Minieri was required to abide by those recommendations.
In his further attempt at reinstatement Panettieri consulted with Leonard Bik, Director of Industrial Relations. He told Bik that he felt well and had the certificate of his treating physician to prove it. He also advised Bik that Flood's recommended limitations on the work he would be permitted to do were not arrived at after a physical examination. According to Panettieri, Bik told him that Dr. Flood's recommendations controlled, the company could not rehire him, and at the hearing Bik confirmed that his decision not to rehire Panettieri was based solely upon the certificate issued by Dr. Flood.
Other evidence which figured in the hearing examiner's findings included testimony from Arturo Cianfano, one of Panettieri's coemployees who worked in the same job classification. He was rehired after a heart attack on February 28, 1972 and has since been working at the job without difficulty. His description of the job conflicted to some degree with the company's official job description as entailing considerable and sustained physical effort; Cianfano described his and Panettieri's work to be "a normal job that any one can handle."
Joseph Scarlata, another coemployee in Panettieri's department, confirmed Cianfano's view of the job as entailing less physical demand than indicated on the official job description. Coemployees would routinely help each other when necessary, and the heaviest piece of equipment
he ever had to handle alone was an empty box weighing approximately 40 lbs.
Because of the apparent dispute concerning the physical demands of the job at Department 19 to which Panettieri sought return, the hearing examiner made a visit to the plant in the presence of counsel for both sides prior to his making his findings and recommendations. He summarized his plant visit as follows:
Finally, after personally inspecting and observing the operations of Department 19 in the presence of counsel for all parties I find that the job description and physical demand recited in Exhibit R-1 is exaggerated. I cannot conclude from my inspection and observations, as stated in Exhibit R-1 that the physical effort required on the job in assembling parts at various stations on the line is "sustained" nor that the worker is "frequently" in difficult position; nor do I find that the job consists of "handling large and bulky parts." Rather, I find that the job operation which I observed is neither heavy or light. I further find, based upon my inspection and observations, that the weights assigned to objects recited in Exhibit R-15 give a distorted picture of the physical effort required on the job. With the use of motorized hoists and other mechanical aids, including skids and stake trucks, the heavier objects can be pushed or lifted without difficulty, or in any event, with the assistance of a co-worker.
Of critical importance, however, was the testimony of Dr. Jaferi, a board-eligible cardiologist, and the doctor who treated Panettieri's condition. There is no question that as a result of the uneventful progress of Panettieri's recovery, his lack of symptoms, the results of a cardiogram and blood-enzyme tests, he concluded that Panettieri was well able to return to his former employment. He found no complications, no signs of a weakening heart and no extensive heart damage. His conclusions in this regard were confirmed by a later stress test administered by a Dr. John Wood, a cardiologist, retained by appellant Hill to perform the test after the Division had issued its finding of probable cause. Although, significantly, Dr. Wood was not called by appellant as its witness, the report of his test was admitted
into evidence. In commenting thereon Jaferi testified that the stress test, which measures the oxygen consumption of a person undergoing physical stress, provides "one of the methods of determining one's physical capacity," including "lifting, pushing and pulling."
The results of the test showed "no definitive evidence of ischemia in response to the effort described." Dr. Jaferi viewed the test results as being primarily normal, and he thought Panettieri "did very well on that." No abnormalities under stress were disclosed.
In his extensive and painstaking findings, the hearing examiner, Julius Wildstein, properly concluded that Panettieri established a prima facie case of discrimination based upon his disability. Both parties agreed that disability resulting from a heart attack is a disability within the meaning of N.J.S.A. 10:5-4.1. Panettieri was technically qualified for his former job and the employer never suggested otherwise. And the refusal to hire him was admittedly based upon the disability resulting from his heart attack.
The hearing examiner thereupon concluded that following establishment of a prima facie case of unlawful discrimination, the burden of proof shifts to the employer to demonstrate that "the nature and extent of the handicap reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1. After examining appellant's proofs, including those concerning the physical demands of the job to which Panettieri sought reinstatement, he concluded that appellant had failed to meet this burden. His recommendation that Panettieri be reinstated, with back pay, together with costs, interest and humiliation damages, was accepted by the Division.
Appellant first contends, as it did in its exceptions to the findings and conclusions of the hearing examiner, that the latter erred in regarding the burden of proof as having shifted after Panettieri established a prima facie case of ...