On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County.
O'Brien, Skillman and Landau. The opinion of the court was delivered by O'Brien, J.A.D.
Plaintiff Daniel Jansen (Jansen) appeals from a judgment of the Chancery Division in favor of his former employer, Food Circus Supermarkets, Inc. (Food Circus), concluding that the employer had not discriminated against Jansen in terminating his employment as prohibited by N.J.S.A. 10:5-4.1. We affirm.
There is no dispute that Jansen suffers from a seizure disorder of the temporal lobe or psychomotor type, also referred to as partial complex seizures. This is a form of epilepsy, a handicap specifically included within the definition of "handicapped" in N.J.S.A. 10:5-5q. Jansen had been employed by Food Circus as a meat cutter for approximately eight years prior to his suspension and termination. He had the seizure disorder during the entire period of his employment. The trial judge found:
There were no incidents of psychomotor seizures at work.*fn1 The employer was aware of the hospitalizations and the epileptic etiology of them and raised no question as to his continuing employability. [Footnote supplied.]
On Saturday, July 17, 1982, while Jansen was being instructed as to how to cut top-round steaks, he suffered a seizure which the trial judge described:
Suddenly, Jansen simply stopped what he was doing with a completely blank look. He simply stood there with the knife in his right hand staring at Iannuzzi. He did not respond to Iannuzzi's inquiries as to what was the matter. After a short time Iannuzzi reached for the knife and removed it from his hand. Jansen then sat on the block. He seemed to recover somewhat; noticed another co-employee who had entered the cutting room at that moment; said to him 'this is it, it's all over'; got up and walked out of the room.
Jansen was sent home from work and instructed to get a doctor's note before returning. Shortly thereafter, Jansen went to the home of a fellow employee, John Snel, and indicated in a rude manner that Snel should not tell Food Circus managers what he knew about Jansen's condition. On the following Wednesday, July 21, 1982, Jansen returned to work with a note from Dr. Silbert, observing that Jansen's seizures "have been under fair control on medication" and that he expected "to be able to achieve better seizure control." Jansen worked on Wednesday and Thursday, July 21 and 22. On July 23, Snel reported an incident to his superior, which he considered to be a threat made by Jansen. According to Snel, the incident occurred on Thursday, July 22, when
He [Jansen] explained to me well I guess this is it, I guess I am going to lose my job. But he said I think I am going to go trapping in Oregon. But before I go I am going to take six people with me. While he sat there he sat there with an open hand and a clenched fist and hitting his hand over and over again.
As a result of the report, Jansen was suspended from his employment, apparently without pay.*fn2 The suspension was followed by a letter from a company vice-president to Jansen, advising that he was suspended effective July 23, 1982, "pending examination by doctors of our choosing to determine your competency, from a medical standpoint, to return to work."
Thereafter, Jansen was evaluated by Dr. Gerald F. Whalen, a neurosurgeon, and Dr. Hector Corral, a psychiatrist. Based upon the medical reports of these two doctors, Jansen was advised by letter of September 29, 1982 that he was terminated as a butcher.
Initially, Jansen filed a complaint with the Division of Civil Rights, Department of Law & Public Safety. He also filed a union grievance. Both of these actions were withdrawn at the time the complaint was filed in the Chancery Division. After a trial, which was protracted by reason of the unavailability of experts, the trial judge concluded that the decision to terminate Jansen from his job was reasonably arrived at and, by inference, that Jansen's handicap "reasonably precluded the performance of" his "employment" as a meat cutter, within the exception provided in N.J.S.A. 10:5-4.1. The trial judge also referred to N.J.S.A. 10:5-2.1 which, in pertinent part, provides:
Nothing contained in this act . . . shall be construed . . . to prevent the termination or change of the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment. . . .
The trial judge found that Jansen refused an offer by Food Circus to rehire him in a position other than as meat cutter. On this appeal, Jansen disputes the credibility of the evidence upon which that finding was based since it was developed on surrebuttal. The trial judge also found the proofs uncontroverted that Food Circus has an affirmative policy aimed at hiring disabled persons, and that it works with community-based organizations to hire the retarded and emotionally disadvantaged. Food Circus had received an award for the employment and training of the handicapped and had two epileptics in its employ, one a bakery clerk and the other a grocery clerk. Before being hired, both of these employees had been evaluated by Dr. Whalen, who recommended that they be hired. One of these employees experienced a seizure at work, but after reevaluation by Dr. Whalen was continued in the employ of Food Circus.
On this appeal, plaintiff raises the following ...