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Bolinger v. Bell Atlantic

April 27, 2000

CLOYD DAVID BOLINGER AND JULIANNE BOLINGER,
PLAINTIFFS-APPELLANTS,
V.
BELL ATLANTIC,
DEFENDANT-RESPONDENT,
AND
JACK COLLINS,
DEFENDANT.



Before Judges Havey, Keefe and A.A. Rodr¡guez.

The opinion of the court was delivered by: Keefe, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically April 3, 2000

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

Plaintiffs, Cloyd David Bolinger and Julianne Bolinger, his wife, appeal from the entry of summary judgment in favor of defendant Bell Atlantic. *fn1 The issue to be decided is whether plaintiffs' complaint is time-barred, as held by the trial judge, or whether defendant's conduct constituted a continuing violation of the Law Against Discrimination (LAD) and, thus, not subject to the normal two- year statute of limitations. For the reasons expressed herein, we hold that plaintiffs' claim was time-barred and therefore properly dismissed.

The relevant facts are not in dispute. Plaintiff became a lineman for defendant in 1971. He worked in that capacity, and sometimes as a "splicer," until he was injured in August 1984 in a work-related accident. As a result of serious injuries to both elbows, he was placed in a "light duty clerk's position." In that capacity, however, he retained the position of a lineman. Plaintiff worked as a clerk from 1984 until October 29, 1987, when his supervisor, Jack Collins, informed him that he was being removed from that job and placed on disability leave, effective immediately. *fn2 According to plaintiff, when he was "put out" on disability, Collins told him that he "would be on permanent disability until [he] reached the age of 62, and then [he would] be put on pension at the same pay." Collins told plaintiff that he "couldn't do the work medically as a clerk." Plaintiff objected to Collins' statement: "I said I didn't believe it, that I could do the work. I had been doing the work." Plaintiff's union representative was present at the meeting and told plaintiff "he didn't agree with it, and they would pursue it." Plaintiff, however, filed no grievance stemming from the meeting.

Plaintiff collected fifty per cent of his salary as disability pay. One week after he was put on disability, plaintiff went to real estate school. Thereafter, he made no attempt to contact defendant to inquire about his job status. He spoke with his former Bell Atlantic colleagues only if he saw "somebody at a coffee shop or at the Acme or something." When asked if he ever told anyone at Bell Atlantic that he wanted to return, plaintiff replied, "I don't believe so, other than just at a coffee shop again. Nobody official."

He continued to experience pain if he "did anything excessive without resting [his] hands," but he saw no doctors for the problem. From October 1987 until March 1995, no one from the company contacted him about returning to work. As a result of a medical examination on March 8, 1995, a recommendation was made that plaintiff return to work with restrictions as to the amount of weight he could lift (no greater than twenty-five pounds), and a direction to avoid "repetitive flexion and extension at the elbows," as well as keeping "upper extremities in one position for long periods of time." Shortly thereafter, plaintiff received a message on his answering machine from Regina Ralston, defendant's employee, stating: "The computer has matched you up with a job in the computer. Be to work at 8 o'clock on Monday or lose your benefits." At that time he had been working for a church as a janitor.

He returned to work with the title of "repair service clerk." In that job, he answered the phone, listened to customer complaints, and processed the necessary paperwork relating to those calls and his response activity. He has continued in that position, apparently, until the present.

This suit was filed on November 14, 1996, approximately twenty months after he returned to work and nine years after being placed on disability. The complaint alleged that defendant failed to provide reasonable accommodation to plaintiff's limited medical restrictions in accordance with the "laws of the State of New Jersey" and in "clear violation of the public policy" of this State. Plaintiff's complaint referred to the "laws" and "public policy" of the State of New Jersey, without citing any particular law as the basis of his claim. Nonetheless, the parties and the trial court proceeded, without objection, under the assumption that plaintiff's claim arose under the LAD.

During his deposition, plaintiff was asked to explain the basis of his lawsuit:

Q: What accommodations did Bell Atlantic fail to provide you with?

A: A job.

Q: Okay. What ...


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