Illingworth remained on Nestle's payroll until June 1, 1994, and was given an additional two months as severance pay when he failed to obtain other employment by June 1, 1994. See Cannon Decl. at P4. In September 1994, some six months after the termination decision, Illingworth was identified by a Suburban Learning Center, Inc. Learning Consultant as having "test results...consistent with a perceptual impairment/learning disability commonly known as dyslexia." Illingworth Dep. at 120-122 and Dep. Ex. 9.
In late April, 1994, after his termination, Illingworth asked to see the Human Resource Manual. He had never reviewed the provision about termination benefits before April 29, 1994. See Dep. at 74:12-18. The termination benefits policy, issued on March 1, 1994 and only circulated to Human Resources staff (not Nestle employees) for guidance purposes, see Peebles Decl. at P4, applies in cases where an employee has been terminated because of a "job elimination, consolidation, or displacement caused by a closure, reduction in workforce, divestiture, or restructuring ...." Id., Attachment A. Nestle does not have a policy of providing salary continuation or similar severance benefits to employees terminated because of performance deficiencies. See id. at P2.
Summary judgment is not a disfavored procedural shortcut, but rather an essential thread in the fabric of the Federal Rules that eliminates unfounded claims without recourse to a costly and lengthy trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden of showing that no genuine issue of material fact exists rests initially on the moving party. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). "This burden...may be discharged by 'showing'...that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. at 325. All evidence submitted must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Once a properly supported motion for summary judgment has been made, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). No issue for trial exists unless the nonmoving party can demonstrate sufficient evidence favoring the nonmoving party such that a reasonable jury could return a verdict in that party's favor. See id. at 249.
Americans With Disabilities Act Claim
The ADA provides that no covered employer shall discriminate against "a qualified individual with a disability because of the disability of such individual" in any of the "terms, conditions [or] privileges of employment." 42 U.S.C. § 12112(a). It not only outlines an antidiscrimination regime, but also imposes upon employers the duty to reasonably accommodate the known disabilities of employees or applicants unless to do so would present an undue hardship for the employer. See 42 U.S.C. § 12112(b)(5)(A).
The Court will dismiss this claim without reaching the merits because Illingworth concededly failed to exhaust the available administrative remedies, a statutory prerequisite to a civil action.
New Jersey Law Against Discrimination Claim
New Jersey enacted its Law Against Discrimination some two decades before Congress passed the Civil Rights Act of 1964, a federal instrument to excise illegitimate discrimination from America's workplaces. Although the first version of the LAD prohibited such scourges as race and ancestry discrimination, in 1972 the legislature amended the statute to also proscribe discrimination predicated on an applicant or employee's handicap. See N.J.S.A. 10:5-4.1; see generally Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 446 A.2d 486 (1982). Someone is handicapped if he "suffers from physical disability...or from any mental, psychological or developmental disability resulting from anatomical, psychological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic tests." N.J.S.A. 10:5-5q.
Is Illingworth Handicapped?
Nestle first argues that Illingworth is not handicapped within the meaning of the LAD since his dyslexia does not substantially limit a major life activity, i.e. his ability to work. But the LAD, unlike the Americans With Disabilities Act, "has no such 'major life activities handicap' requirement." Gimello v. Agency Rent-A-Car Systems, Inc., 594 A.2d 264, 250 N.J. Super. 338, 358 (App.Div. 1991).
Moreover, even under the ADA (or Rehabilitation Act), where plaintiffs have established that they suffer from dyslexia,
courts generally consider them within the protected class. See, e.g., Stutts v. Freeman, 694 F.2d 666 (11th Cir. 1983); Ciampa v. Runyon, 1996 U.S. Dist. LEXIS 5997, 1996 WL 146283 (D.Mass.); Argen v. New York Bd. of Law Examiners, 860 F. Supp. 84 (W.D.N.Y. 1994); DiPompo v. West Point Military Academy, 708 F. Supp. 540 (S.D.N.Y. 1989). But cf. Sherman v. Optical Imaging Systems, Inc., 843 F. Supp. 1168 (E.D. Mich. 1994).
The Court therefore assumes, without deciding, that Illingworth is handicapped within the meaning of the LAD.
Nestle's Lack of Knowledge of Illingworth's Dyslexia
Nestle contends that as a matter of law and logic it could not have terminated Illingworth because of a handicap when it did not even know he suffered from that handicap until six months after the termination decision. It argues, essentially, that before an employer incurs a duty to explore possible avenues of reasonable accommodation,
and for any decision to be "because of" a handicap, it must know that an employee suffers from a handicap.
Confronted by a nearly identical fact pattern, the court in Stola v. Joint Industry Board, 889 F. Supp. 133 (S.D.N.Y. 1995), granted summary judgment where the plaintiff sued after he was fired for poor performance and menacing behavior. As here, it was not until sometime after his termination that the plaintiff discovered that he had a mental disorder, which the court assumed directly caused the behavior for which he was fired. Because the behavior could have been caused by poor judgment and mere misbehavior, the court dismissed the suit, holding that it would be "manifestly... unreasonable in such circumstances to hold [the defendant] responsible for failing to determine...whether that behavior was the product of a mental disorder." Id. at 136.
Similarly, in Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928 (7th Cir. 1995), an ADA suit where the defendant terminated the plaintiff without any knowledge that he was disabled, the Seventh Circuit carefully set forth the legal and normative infirmities inherent in the plaintiff's position. The defendant maintained that it fired the plaintiff for performance reasons, a contention that was not thrown into genuine dispute by plaintiff's speculation that his employer must have known he suffered from primary amyloidosis, an often-fatal disease that seemed to be causing some of his workplace problems. "We think", the court explained, "that an employer cannot be liable under the ADA for firing an employee when it indisputably had no knowledge of the disability. This is supported both by simple logic and by the conclusions of other courts that have considered analogous issues." Id. at 932. The court explicitly rejected the argument that firing someone because of the symptoms of his disability is the same as firing someone because of the disability itself. See id. at 933-934. But the court did recognize that some symptoms are so patently associated with certain disabilities that it would be reasonable to infer the employer's knowledge of the disability. See id.; Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996) (granting summary judgment where the employee failed to establish a prima facie case since employer lacked knowledge that cerebral palsy caused plaintiff's illiteracy); Miller v. National Cas. Co., 61 F.3d 627 (8th Cir. 1995) (granting summary judgment in an ADA case where the employer was not told and could not infer that the employee suffered from manic depression); Landefeld v. Marion General Hospital, Inc., 994 F.2d 1178 (6th Cir. 1993) (granting summary judgment in a Rehabilitation Act case where the employer had no knowledge that its employee suffered from a mental disorder).
Recently, the Third Circuit dealt with a related question and relied on the Hedberg analysis. In Patricia McGuirk Geraci v. Moody-Tottrup, International, Inc., 82 F.3d 578, 1996 U.S. App. LEXIS 9996, 1996 WL 208528 (3d. Cir.), the court affirmed a grant of summary judgment in a pregnancy discrimination suit where the employer terminated the plaintiff before becoming aware of her pregnancy (which was in its first few weeks). Citing Hedberg, the court explained that "disabilities are often unknown to the employer, and, because of that, the plaintiff must demonstrate that the defendant employer knew of the disability to state a prima facie case of unlawful discharge." Id. at *3.
Since New Jersey courts cite ADA, Title VII, and Rehabilitation Act cases as persuasive interpretations of the standards of proof under the LAD, cases such as Geraci, Hedberg and Stola provide the proper framework for analysis of Illingworth's claim. See Abrams v. Lightolier Inc., 50 F.3d 1204, 1212 (3d Cir. 1995); Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 570 A.2d 903 (1990). Because there is no genuine dispute that Illingworth never told Nestle about his dyslexia (see Illingworth Cert. at P26; Illingworth Dep. at 103-104; Cannon Decl. at P6), he fails to make out a prima facie case of handicap discrimination under the LAD unless a jury could reasonably find that Nestle should have inferred that he was dyslexic from the difficulties he encountered utilizing computers.
Illingworth contends that his repeated requests for computer assistance and the fact that he was clearly struggling more than other Business Analysts in his attempt to master computer skills cried out for recognition by Nestle. He further submits that Cannon and Nestle knew or should have known that some handicap was causing his difficulties and had a duty to inquire as to whether he required some form of accommodation. The Court disagrees.
Computer illiteracy or difficulty is not a symptom one inevitably would assume derives from a learning disability generally or dyslexia in particular. Accordingly, it is not a symptom of a disability that is "so obviously [a] manifestation of an underlying disability that it would be reasonable to infer that an employer actually knew of the disability." Hedberg, 47 F.3d at 934. If Illingworth himself never thought to get tested for dyslexia or at least to raise the issue with Nestle, even though he "knew as a child that [he] had a learning disability that affected [his] ability to read and comprehend, as well as to handle numeric concepts, visual images and problems using such images", Illingworth Cert. at P3, no court or jury should consider his symptoms so obviously associated with a learning disability as to support the inference of knowledge necessary to satisfy his prima facie case. See Geraci, at *3 (prima facie case requires that plaintiff demonstrate that employer knew of the disability). Nor would the fact that he requested a transfer necessarily suggest to a reasonable factfinder that Illingworth was unable to perform his job duties because of a mental disability. It would more likely indicate that he, perhaps like many people of his generation who did not grow up with computers, lacked facility and comfort with this new and rapidly-changing technology. If summary judgment was appropriate in Miller for lack of employer knowledge, even where the employer was told by plaintiff's sister that plaintiff was mentally "falling apart" and that the family was trying to get her admitted to a hospital, Miller, 61 F.3d at 629-630, then on this record Illingworth's symptoms were not sufficiently obvious to reasonably suggest the presence of a disability. See Stola, 889 F. Supp. at 136; cf. 29 C.F.R. § 1630.9 App. (July 1, 1995).
Nestle has established as a matter of law that it lacked (and should not be charged with) knowledge of Illingworth's disability, and thus did not violate the LAD.
Notwithstanding its broad language, Lehmann v. Toys ' R' Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993), is not to the contrary. In that case, the New Jersey Supreme Court explained that:
the LAD is not a fault--or intent--based statute. A plaintiff need not show that the employer intentionally discriminated or harassed her, or intended to create a hostile work environment. The purpose of the LAD is to eradicate discrimination, whether intentional or unintentional. Although unintentional discrimination is perhaps less morally blameworthy than intentional discrimination, it is not necessarily less harmful in its effects, and it is at the effects of discrimination that the LAD is aimed. Therefore, the perpetrator's intent is simply not an element of the cause of action. Plaintiff need show only that the harassment would not have occurred but for her sex.