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Barbera v. Martino

December 04, 1997


On appeal from Superior Court of New Jersey, Law Division, Ocean County.

Approved for Publication December 4, 1997.

Before Judges Pressler, Conley and Carchman. The opinion of the court was delivered by Conley, J.A.D.

The opinion of the court was delivered by: Conley

The opinion of the court was delivered by


Plaintiff, a former Assistant Trial Court Administrator (ATCA) in Camden County, appeals a jury verdict in favor of the State defendants *fn1 on his Law Against Discrimination (LAD) failure to hire/rehire claim. He also appeals various summary judgments and related orders in favor of the State defendants on his LAD termination claim, wrongful discharge and other related claims, including the dismissal of his claims as to the individually named State defendants and his claim for punitive damages. We affirm.


Plaintiff first became an ATCA in 1980 and, prior to April 6, 1987, served not only without adverse incident, but well. On April 6, 1987, plaintiff assaulted his supervisor, Dollie Gallagher, in the Camden County courthouse, where he and his supervisor worked.

The incident, later diagnosed by plaintiff's doctors as the product of a temporary psychotic episode, was described by several witnesses in their reports to the then Camden County Assignment Judge, Judge DiMartino, as follows:

1) Report of Rosemarie Bregatta:

The next thing I heard was Tom rushing from Dolly's office and ranting that Dolly was the devil and he had to kill her . . . At this point Dolly started out the door to the private corridor. He ran after her and I ran after him. Dolly was on the floor and Tom was hitting her . . . next thing I knew Nick Carungo and Rick Mroz were holding onto Tom along with Lil and I.

2) Report of Anna Bonn:

Dolly came out of her office a short time later and was walking toward the front of our office when Tom came out yelling to her that she was the devil and yelling to us that she was the devil. He said he was going to have to kill her and he said I am going to throw you out the window. Dolly continued around the office . . . with Tom following her and as he went by touching Rosemarie on the shoulder and he told her she was the devil, touched me on the shoulder and said I was the devil, touched Elaine on the shoulder and told her she was the devil . . . we heard a thud and we ran out, saw Dollie laying on the floor and he was beating her. We ran out and tried to stop him and he was yelling she was the devil and he had to kill her and that he was Jesus Christ.

3) Report of Nicholas Carungo:

I was working in my office . . . when I thought I heard a woman scream. I went to ask my secretary if she heard anything and we heard more screams. I then opened the office door and saw Thomas Barbera kicking and punching Dolly Gallagher. Several other people were trying to restrain him.

4) Report of Dorothy Wall:

I heard a man's voice hollering "I have to kill you, you're the devil." I looked out of the glass partition beside the door and saw Tom Barbera surrounded by TCA's staff trying to restrain him

The victim, too, submitted a report in which she explained:

I had gone only fifteen or so feet when I heard the door open and Tab [plaintiff] came out of the office shouting that he was going to kill me. I turned to see him as he shouted this. The next thing I remember, I was on the floor, apparently coming back to consciousness (the same type of feeling that I have had when I had fainted) and I could not see anything, but I could hear distant female voices shouting for me to get up, to get away (or perhaps for Tab to get away). I tried to move my legs but they felt numb (pins and needles feeling). I remember being hit once on each side of my face at this time. I then saw Rick Moroz running down the hall toward me. The next thing I remember is being helped up off the floor and back to my office. . . .

From these reports Judge DiMartino reached the following Conclusions:

I read these reports and it was quite clear that he [plaintiff] tackled her [Dolly Gallagher]. He flailed his arms and fists at her, kept telling her he was going to kill her. He had to throw her out the window, that she was the devil. He had to kill her. You also must understand that one of the difficulties about the beating is where it occurred. The hallways are solid concrete with an indoor-outdoor carpeting on top. She had been beaten about the head, the face, her face and arms, her glasses were broken. It was just an intolerable situation.

[Emphasis added.]

Plaintiff, therefore, was fired.

Plaintiff has never disputed that he assaulted Ms. Gallagher. And although plaintiff characterizes his termination as the product of an unfounded fear of his then psychotic condition, defendants have consistently asserted that plaintiff was terminated because of the assault. When deposed during this litigation, Judge DiMartino explained that he decided to fire plaintiff not because of plaintiff's then psychiatric disability *fn2 but because of his conduct in attacking Ms. Gallagher:

The mental illness would have no part in the decision to terminate Tom because I was terminating him for what he did, not for the cause of what he did. I was terminating him because he physically beat his supervisor, his superior and in addition to that I felt that regardless of what the reason for that was that he would not be any longer effective in an atmosphere where people were going to have some hesitancy about him. He was working with a whole staff of women who felt somewhat insecure and especially when his boss was so insecure that she would have resigned if I permitted him to come back.

By letter of May 4, 1987, DiMartino advised plaintiff that he would be terminated as of May 15, 1987. He pointed out that, as an appointee of an assignment Judge pursuant to R. 1:33-4(e), plaintiff served at the pleasure of, and was subject to discharge by, the assignment Judge. In explaining to plaintiff why he was being fired, Judge DiMartino, without equivocation, told him:

On April 6, 1987 you physically assaulted your supervisor, the Trial Court Administrator, which resulted in personal injury to her and required hospital attention. I have carefully reviewed all of the statements of the employees who witnessed this attack upon her. Such physical violence against another employee is so egregious that there are no circumstances that justify your return.

[Emphasis added.]

Subsequent to his termination and continuing up to the time of trial in June 1995, plaintiff applied for approximately twenty-nine positions. Most were within the AOC and at the State level; some were at the county level. The first application from plaintiff was in June 1987 for the position from which he had been terminated. Plaintiff continued to apply for positions throughout the trial proceedings. *fn3

In 1988, plaintiff filed a complaint against the State defendants *fn4 alleging wrongful termination, failure to hire/rehire and failure to make reasonable accommodations under the LAD (counts one, two and three of the complaint). Specifically, plaintiff alleged that he had been discriminated against as a mentally handicapped person under the LAD. In addition, plaintiff also asserted a Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 491 A.2d 1257, modified, 101 N.J. 10 (1985), claim for wrongful termination in violation of public policy/implied contract (count four), a due process claim for violation of procedural rights (count five), and a claim for punitive damages (count six).

By the time of trial the only remaining cause of action was that alleged in count two - LAD discrimination in failure to hire or rehire. During the jury trial, Judge DiMartino testified as to the reason for plaintiff's termination, that is the assault upon Ms. Gallagher, and told the jury that following the attack he determined that plaintiff could not assume his former ATCA position or any position that would place him in contact with Ms. Gallagher, not because of the underlying psychiatric condition, but because of the act of violence towards Ms. Gallagher.

Defendant Lipscher, too, testified that plaintiff's termination as ATCA was premised upon the fact that he physically attacked his supervisor, Ms. Gallagher, rather than the underlying psychiatric condition. Because of plaintiff's conduct, he felt that plaintiff should not hold any position wherein he would work closely with Ms. Gallagher. Four of plaintiff's applications were for such positions (two separate applications for ATCA, Camden County, one application for TCA, Burlington County, and one application for Track Coordinator, Camden County).

As to plaintiff's applications for positions that would not entail contact with Ms. Gallagher, Mr. Lipscher, and other AOC witnesses, testified that plaintiff was treated like any other applicant and that there were no instructions within the AOC not to interview or hire plaintiff. Plaintiff presented no evidence to the contrary. Moreover, the evidence was undisputed that for the county positions, it was the county hiring authority, rather than the AOC, which had responsibility for recruitment and hiring and that for those positions, the counties maintained the recruitment files. Plaintiff presented no evidence of any county actions in connection with the county positions.

All the State witnesses, then, unequivocally asserted that there was no prohibition against plaintiff obtaining a job, other than the four positions plaintiff had applied for which would have put him in direct contact with Ms. Gallagher. As to those four positions, both Judge DiMartino and Mr. Lipscher testified plaintiff was not hired because of his assault upon Ms. Gallagher.


As we understand the fundamental premise for plaintiff's substantive claims, it is that plaintiff suffered from a psychiatric condition at the time of the assault, that the assault was a product of that condition, and that the condition has since been treated and no longer exists, yet plaintiff not only was fired, but consistently rejected on his subsequent employment applications. Plaintiff presented undisputed medical evidence that the psychotic episode in May 1987 was temporary and that the causative psychiatric condition has been treated and cured. He has asserted throughout that he was fired, and not thereafter rehired to any position that he qualified for, because of his medical condition. Contrariwise, the defendants have consistently maintained that it was the assault which caused his termination and that, as to his subsequent employment efforts, there was no general policy not to rehire him, except as to those positions that would put him in proximity with Ms. Gallagher and that was solely because of the assault.

In this respect, the jury was instructed during the trial on plaintiff's prima facie LAD burden of proof, and then instructed:

The next thing you're going to have to decide is part of the explanation I just gave. Do you find that the defendant has articulated or advanced a legitimately nondiscriminatory reason for its decision not to hire the plaintiff for all of the positions for which the plaintiff applied? Now, the plaintiff -- well, the defendant asserts that he has asserted or articulated reasons, legitimate reasons, nondiscriminatory reasons for its decision not to hire. Now, in certain positions it was because -- they allege it was because of the attack on Dollie Gallagher. In other positions it was because there was simply no policy or information disseminated not to consider him, that he was deemed qualified as far as meeting the qualifications set forth in the posting, he was treated the same way as all the others, and that the hiring authority eliminated many other people as far as interviews. They only selected part of those resumes or the group of resumes to decide to interview. Now, that doesn't have to be by -- the articulation of advancement of a legitimate nondiscriminatory reason doesn't have to be proven by a preponderance of the evidence. It has to say, did they assert -- do they assert one in this case. If they have, then you have to decide whether the defendant -- that the plaintiff has proven by a preponderance of evidence that the defendants' reason, legitimate nondiscriminatory reason that they set forth was a pretext for discrimination for any of the positions for which the plaintiff applied. And you don't have to remember all these, because they're all going to be in writing, and you're going to have them with you.

The next thing that you're going to have to decide is -- well, let me just pause for a moment. Well, let me talk about what I've just gone over, because I've taken notes from the questions, but let me just say this. The initial case in support of plaintiff's claim must be shown by the plaintiff on the first part by proving that he applied possessing the experience, that individuals involved had knowledge of plaintiff's mental illness, that he was treated dissimilarly from others. Now, if you don't find those to be true -- or if you do find it has been true, then the plaintiff has proven his initial case, and you must then determine whether the plaintiff has also satisfied his ultimate burden of proving intentional discrimination by the defendants. Now, the defendant has maintained certain things to state that they had nondiscriminatory reasons, and I went over those. And if true, nevertheless the plaintiff can prevail on his claim if he shows that these reasons are a mere pretext for discrimination. To prove pretext, plaintiff must show by a preponderance of the evidence that defendants' reason is not worthy of belief or that more likely than not, it is not a true reason or the only true reason for the defendants' actions and that plaintiff's condition, mental condition was a determinative or motivating factor for defendants' action. In other words, in order to prevail on his claim, plaintiff must prove by a preponderance of evidence that his mental condition was a determinative factor in the challenged treatment. A plaintiff may need not prove that the mental condition was the employer's sole or exclusive consideration, but that it made a difference in deciding the adverse action. If you find that the plaintiff has satisfied this burden of proving that the defendants' reason is a pretext, then you must return a verdict in favor of the plaintiff. If you find that the plaintiff has not satisfied his burden of proving that the defendants' reason is a pretext, then you must return a verdict for the defendants.

[Emphasis added.]

Consistent, then, with the theories posited during the trial, the jury was instructed on plaintiff's prima facie burden, the defendants' burden of production as to a legitimate nondiscriminatory reason for not hiring or rehiring plaintiff, i.e., the assault upon Ms. Gallagher, and plaintiff's burden to then show such reason was a pretext, and that the real reason, or at the least a determinative reason, was his then mental condition. For these considerations, plaintiff retained the burden of proof.

But the jury was also instructed on what appears to be an alternative theory, that is that the reason plaintiff was not rehired was a combination of his psychiatric condition, which caused the attack, and an unjustified fear of future ...

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