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Carter v. AFG Industries Incorporated

October 30, 2001

LEONARD N. CARTER, JR., PLAINTIFF-APPELLANT
v.
AFG INDUSTRIES INCORPORATED, WILLIAM CUNNINGHAM, HAROLD JOHNSON, DEFENDANTS/RESPONDENTS



On appeal from the Superior Court of New Jersey, Burlington County, Docket No. BUR-L-00481-98.

Before Judges Havey,*fn1 Coburn and Weissbard.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 1, 2001

Plaintiff, Leonard Carter, appeals from the grant of summary judgment dismissing his complaint for unlawful termination of employment in that he was the victim of discrimination based upon his assertion of a claim for workers' compensation benefits, in violation of N.J.S.A. 34:15-39.1, as well as discrimination in violation of N.J.S.A. 10:5-12, the Law Against Discrimination (LAD). Although we reject Carter's LAD Claim, we find that his discharge did violate the workers' compensation law. Accordingly, we reverse.

In February 1995, Carter was hired by defendant, AFG Industries, Incorporated (AFG), as a production technician. He remained in that position until his termination on February 20, 1996. On September 23, 1995, AFG's Human Resource Manager, William Cunningham, counseled Carter with respect to his absenteeism. Even though he disputed many of the alleged instances of absenteeism,*fn2 Carter did sign a document that included the following warning:

Please be advised that this is a last and final warning. If you should be absent or late in the next six months, your employment may be terminated.

On September 31, 1995, Carter injured his left shoulder at work. He reported the incident and was referred by AFG to its regular physicians, Cooper Occupational Health (Cooper), for medical treatment. Carter provided evidence, although disputed by Cunningham, that medical appointments, including therapy, had to be and were scheduled on off-work time. Carter did not miss any time from work as a result of his injury, but was placed on light duty for a period of time. He was ordered to return to full duty at some point and did so, despite continuing shoulder pain.*fn3 In January 1996 Carter became dissatisfied with the medical care he was receiving at Cooper. As a result, he missed scheduled therapy appointments on January 23 and 25, 1996 and decided to seek an opinion from an independent physician of his own choice.*fn4 Thereafter, Cunningham informed Carter that such missed appointments were considered absences from work. Cunningham accompanied Carter to see Dr. Introcaso at Cooper on February 7, 1996, as a result of which more physical therapy appointments were scheduled. Although it is not entirely clear whether Carter attended any of the February therapy sessions, it is undisputed that he missed an appointment on February 19, 1996, as a result of a combination of feeling sick and inclement weather.

Central to Carter's present claim is a July 10, 1995 memo authored by Cunningham and directed to all employees entitled "Medical Follow-up Exams After An Injury." It stated:

In the unfortunate event that you get injured on the job and require medical treatment at the hospital, you must return to the hospital if a follow-up visit is scheduled.

These appointments are a must:

1. In making sure an injured employee is recovering properly.

2. To ensure an employee returns to work as quickly as possible which saves money.

If a required follow-up visit is missed it will be treated as an absence from work and a disciplinary action will follow ...


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