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September 21, 1999


The opinion of the court was delivered by: Simandle, District Judge.



In this employment discrimination suit, plaintiff James Cinelli has sued U.S. Energy Partners ("U.S.E."), Energis Resources, Co., Inc. ("Energis"), Public Service Electric & Gas Company ("PSE & G"), and XYZ Corp., a fictitious entity, alleging discrimination on the basis of what defendants perceived to be his disability. Presently before the Court is defendants' motion for summary judgment pursuant to Rule 56(c), Fed.R.Civ.P.

The present motion challenges Counts One and Three of plaintiffs complaint.*fn1 Count One alleges that defendants U.S.E. and Energis (now named PSEG Energy Technologies, Inc.) violated the ADA in terminating Cinelli's employment because he had a disability, real or perceived. Count Three alleges that defendants violated the NJLAD in terminating and/or failing to rehire Cinelli because he had a disability, real or perceived. Because Cinelli does not claim that he is or was disabled per se, the primary issue to be decided is whether for the purposes of summary judgment plaintiff has produced sufficient evidence to show that defendants perceived him as disabled because of his diagnosis of Non-Hodgkins Lymphoma, an incurable form of cancer. For reasons discussed herein, the Court holds that plaintiff has raised genuine issues of material fact as to whether defendants fired him because of perceived disability, but has failed to adduce sufficient evidence that defendants refused to rehire him based on this same perception. The Court will therefore will grant in part and deny in part defendants' motion to dismiss.


Cinelli initiated this action on November 10, 1997 by filing a complaint seeking damages from all defendants under, inter alia, the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12201 et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Specifically, Cinelli alleges that U.S.E. fired him from his job because he was perceived as being disabled and unable to perform his employment duties when he suffered the onset of Non-Hodgkins Lymphoma, and that PSE & G refused to rehire him based on the same perception. (Compl. ¶¶ 1, 44-45.)

Another of Cinelli's responsibilities at U.S.E. was to sell gas and secure new accounts; i.e., new customers to which U.S.E. would then sell its product. (Id. at 53.) At some point, Peraino set specific, quantified sales targets for Cinelli. The parties dispute when this took place. Defendants argue that in July 1995 Peraino communicated to Cinelli specific minimum sales goals that Cinelli would have to meet. (Peraino Cert. at ¶ 9.) Plaintiff concedes that Peraino stated a general concern about sales figures, but contends that he never communicated any specific quotas or minimum sales figures in July. (Cinelli Dep. at 53-54, 73.) Nonetheless, the parties agree that Peraino did set specific sales quotas for Cinelli on November 16, 1995. (Cinelli Dep. at 75; Peraino Cert. at ¶ 16.)

In September 1995, plaintiff discovered a suspicious-looking lump on his neck. (Cinelli Dep. at 96-97.) In that same month, on or about September 20, 1995, Peraino and Cinelli met to discuss plaintiffs role at U.S.E. At that time, Peraino relieved Cinelli of his responsibilities as Office Manager, promoted Lenny to the position of Office Manager, and instructed Cinelli to concentrate more on sales. (Cinelli Dep. at 74; Peraino Cert. at 3.) Cinelli maintains that even while directing him to concentrate more on sales, Peraino gave him no specific sales goals. (Cinelli Dep. at 74.)

The parties dispute whether at the time of this meeting Peraino was aware that Cinelli was ill. Cinelli maintains that during the September 20th meeting he and Peraino discussed the lump and that he told Peraino and Lenny that he was going to a specialist for a biopsy. (Cinelli Dep. at 102-105.) Cinelli also claims that during the meeting, Peraino commented on the lump on Cinelli's neck, stating "it looks pretty ugly." Id. Defendants maintain that Peraino did not know of Cinelli's illness at any time in September, and was not aware of Cinelli's health issues until a later meeting on November 16, 1995. (Peraino Dep. at 124-25.)

Throughout the fall of 1995, Cinelli met with his doctors concerning the lump on his neck. These sessions culminated in a biopsy, which confirmed that the lump was in fact a malignant tumor. (Cinelli Dep. at 90-91.) Defendants maintain that during this same period, Cinelli consistently failed to meet his sales targets and, because he resented Lenny's authority, was unpleasant and disruptive in the office. (Peraino Dep. at 103.)

On November 16, 1995 following the biopsy, Cinelli met with Peraino and Lenny met to discuss office sales output. During the meeting Peraino expressed concern over Cinelli's poor sales results, and imposed specific sales quotas on Cinelli in an effort to stimulate Cinelli's performance. (Peraino Dep. at 131-32.)

Shortly before this meeting, Cinelli had let Peraino and Lenny know that the lump on his neck had turned out to be cancerous, and that he was scheduled for surgery to remove the tumor. (Cinelli Dep. at 90-91.) Defendants dispute Cinelli's account of this conversation, and maintain that while Peraino understood that Cinelli had health problems, he was unaware until December 1995 that Cinelli had cancer. (Peraino Dep. at 125.) Despite allegedly not knowing that the lump was cancerous, however, Peraino was sufficiently concerned about Cinelli's health that he recommended that Cinelli take time off. (Id. at 84; Peraino Dep. at 124, 127.)

After the meeting with Peraino and Lenny, Cinelli met with Peraino alone. There, Peraino responded to Cinelli's concerns over his ability to meet the newly imposed quotas by assuring Cinelli that he had a "good career here" and that part of Lenny's job was to help Cinelli become successful. (Id. at 80.)

Cinelli was absent from work from November 16, 1995 until after Thanksgiving. On November 28, plaintiff underwent surgery to remove the lump. (Cinelli Dep. at 92.) On December 1, Cinelli returned to work. On this same day, Cinelli was told by his doctor that his illness was Non-Hodgkins lymphoma, a terminal, incurable cancer.*fn3 Id.

Unable to concentrate at work that day, Cinelli left for home with permission. Id. Later that day, he called Lenny to inform her of his poor prognosis. (Id. at 96-97.) On December 4, Cinelli told Peraino about the diagnosis and told him that he would have to undergo a battery of tests to determine the extent of the cancer. Peraino told plaintiff to take care of himself and not worry about the office. (Id. at 100.) Nevertheless, when plaintiff returned to work after blood tests on December 6, he learned of an unscheduled meeting with Peraino and Lenny. At this meeting, Lenny and Peraino conducted another review of Cinelli's accounts, sales proposals, and potential leads. (Id. at 150-51.) Again, his supervisors inquired about his health, and Peraino expressed doubts that Cinelli could reach his quota given his "current situation." Cinelli took "current situation" to mean his health problems. (Id. at 151-52.)

The next day, three days after Cinelli revealed to his supervisors that he had terminal cancer, Peraino terminated Cinelli's employment for the stated reason that Cinelli had generated no new sales and only one new lead between November 16, 1995 and December 6, 1995. (Peraino Dep. at 106.)

Cinelli has produced evidence that, contrary to defendants' assertion that his poor sales levels led to his dismissal, his sales actually improved in the months preceding his dismissal. As support, Cinelli cites evidence that between October 1995 and January 1996, he increased his number of new accounts from six to twenty-three, and picked up six new accounts in November despite losing half the month to illness. (Ahrens Dep. at 50, 54.) Moreover, Cinelli points to evidence that his new accounts were of considerable size and would likely he profitable for the company. (Id. at 51.)

After his firing, Cinelli applied for unemployment benefits, and the New Jersey Department of Labor approved Cinelli's application. However, U.S.E. appealed Cinelli's compensation award. Significantly, in its appeal letter U.S.E. stated that Cinelli was discharged because of his "inability to perform his job functions." (Compl.Ex. A.) Notwithstanding U.S.E.'s appeal, Cinelli did eventually receive benefits.

Cinelli sought other employment after learning that his employment with U.S.E. was to be terminated. In the course of his search for a job, Cinelli applied for several open positions with PSE & G. (Cinelli Dep. at 111-14.) On January 19, 1996, plaintiff received a letter from PSE & G which advised that PSE & G could not hire plaintiff for the same reasons for which plaintiff was discharged from U.S.E. (Compl.Ex. B.)

After receiving his right-to-sue letter from the EEOC, Cinelli filed the present lawsuit, the two surviving counts of which allege violations of the ADA and the NJLAD connected to Cinelli's discharge and PSE & G's refusal to rehire him. Defendants now move this Court to grant their motion for ...

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