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ILLINGWORTH v. NESTLE U.S.A.

May 21, 1996

DONALD ILLINGWORTH, Plaintiff,
v.
NESTLE U.S.A., INC., t/a NESTLE FOOD COMPANY, Defendant.



The opinion of the court was delivered by: LIFLAND

 Lifland, District Judge

 This case presents the question of whether an employer can violate the handicap provision of the New Jersey Law Against Discrimination ("LAD") when, at the time it decided to fire the employee, it indisputably lacked knowledge of the employee's handicap. After canvassing New Jersey law and cases interpreting federal antidiscrimination statutes, the Court holds that the employer's knowledge of the employee's handicap is an element of the plaintiff's prima facie case. Absent such knowledge, the prima facie case fails and the employer cannot, as a matter of law, be liable for handicap discrimination.

 Overview

 Nestle U.S.A., Inc., t/a Nestle Food Company ("Nestle") moves for summary judgment dismissing Donald Illingworth's handicap discrimination and breach of contract suit. Nestle disputes whether Illingworth, who is dyslexic, is handicapped within the definition of the Americans With Disabilities Act ("ADA") and the LAD, and contends that neither it nor even Illingworth knew of his dyslexia until months after he was terminated. Thus, he can establish no causal connection between his dyslexia and the decision to terminate him. Illingworth responds that Nestle knew or should have known about his dyslexia given the severe difficulty he encountered trying to master the computer skills that had become part of his job. As for the breach of contract claim, which pertains to Illingworth's alleged entitlement to severance benefits, Nestle argues that there is no genuine dispute that Illingworth is not entitled to additional severance benefits, a claim governed by ERISA rather than the New Jersey common law asserted by Illingworth.

 For reasons articulated below, the Court will grant summary judgment and dismiss this lawsuit.

 Factual Background

 Illingworth's parents recognized when he was quite young that he had some form of learning disability. To remedy this, they sent him to special schools until he was able to return to the public school system. See Illingworth Cert. at P3. Attached as Exhibit A to his Certification is a letter, written in 1955, from the Director of the Reading and Study Skills Center, Inc., discussing his reading problem and the progress achieved to date.

 As a Business Analyst, he was to

 
research and report to the customers [he] was working with the industry trends and information relative to the areas of [his] expertise. Essentially [he] was to transmit the trends and information learned to the specific purchasing persons of [Nestle's] customers so that they, being informed of [its] growth in market share, would buy more of [Nestle's] product. In addition, [he] would conduct certain kinds of analytical studies and the like in order to provide background for the introduction by the defendant of new items in the market. [He] would also, to the extent allowed, conduct space management analysis functions for [his] customers. [He] would report the results to the customers so as to be able to request from them an assignment to [Nestle's] products of the 'best' shelf space that could be obtained. Placement of one's product in a supermarket department is regarded as being of great importance. One wishes to be placed where one is not only easily seen by the passing consumer, but it is also a location where a consumer wishing to take [Nestle's] product can easily do so. In order to do this as an advisor to the supermarkets and to the persons within the supermarket organization who would be responsible for the set up of the department in question, a person in [his] job would perform research by first collecting and then analyzing the data needed to make a recommendation of shelf placement. Items such as percentage of market, how this impacted on shelf placement, etc. became paramount....It was the idea that the Business or Merchandising Analyst would convince the Corporate Manager who had the ultimate decision on placement to place [Nestle's] product in a more advantageous position than that of [the] competition.... It is the Supermarket and its personnel that has the ultimate decision making power as to shelf location....

 Id. at P9. To perform these duties, Illingworth needed to use a computerized Plan-O-Gram program which, inter alia, gave the user the ability to graphically show store representatives what a particular shelf set-up would look like. See Cannon Decl. at P3; Illingworth Cert. at P10. Being given Plan-O-Gram responsibilities by a grocery chain, i.e. being named Captain for a particular department, gives the responsible sales representative a competitive advantage in that particular chain's stores and is considered an important element of successful sales. See Cannon Decl. at P3. Illingworth states, however, that in his experience being named Captain does not result in automatic placement and increased sales. See Illingworth Cert. at P11. He also asserts that he would give constructive comments about the Plan-O-Grams submitted by competitors to try to demonstrate why better placement for Nestle products was in the retailer's interest. See id. at P12. Nestle does not dispute or even address this point. *fn1"

 In March 1994, one of Illingworth's primary customers, Pathmark, took its store's Plan-O-Gram duties away from Illingworth. See Illingworth Dep. at 88. Prior to this, he had sole Plan-O-Gram responsibilities for several sections of the store. According to John Cannon, Illingworth's regional manager, on March 16, the Pathmark Space Manager told Cannon that he was dissatisfied with Illingworth's space management performance, expressing concerns with his Plan-O-Gram timeliness and thoroughness, cooperativeness in scheduling resets, and flexibility in meeting Pathmark's needs. *fn2" Cannon was concerned because Pathmark was an important customer and Illingworth had notified neither him nor Rick Rising, Illingworth's immediate supervisor. *fn3" Absent such notice, Nestle could not formulate a plan to try to prevent loss of Plan-O-Gram responsibilities. Illingworth also lost the A & P captaincy. See Cannon Decl. at P7. Cannon reported his concerns regarding Illingworth's performance to his superiors at Nestle, and his decision to terminate plaintiff for performance reasons was approved. On March 21, 1994, Illingworth was notified of his termination. His position was filled in late November 1994. *fn4"

 At no time prior to his termination did Illingworth tell his Nestle supervisors that he suffered from a medical condition that adversely affected his ability to perform his duties as a Business Analyst. See Illingworth Dep. at 103-104; *fn5" Illingworth Cert. at P26; Cannon Decl. at P6. He told them a number of times that he was having great difficulty mastering the computer skills necessary to timely generate Plan-O-Grams. In January 1994, after Illingworth performed unsatisfactorily on an analytical test, he was warned that his performance needed to improve. He asked to be placed in a different job, perhaps his old sales job, a request Cannon denied as not in Nestle's best interests and, in any event, impossible due to the unavailability of sales positions in the New York area in early 1994. See Illingworth Cert. at P21; Cannon Decl. at P8. According to Cannon, he "had the impression that Mr. Illingworth was not picking up computer skills as quickly as some others, [but] he did not attribute this to any mental or physical condition and [it] was not so pronounced as to suggest anything other than that he was less computer literate than some other employees." Id. at P9.


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