On appeal from the Superior Court of New Jersey, Law Division, Morris County, MRS-L-484-99.
Before Judges Baime, Newman and Axelrad.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 28, 2001
Plaintiff, Arthur Muller, appeals from an order granting summary judgment and dismissing plaintiff's complaint alleging a violation of this State's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq. We affirm.
Plaintiff, who is now fifty-six years old, worked for defendant Exxon Research and Engineering Company (Exxon) from 1978 through 1997. Plaintiff started as a construction mechanic and was promoted to a senior construction mechanic during his second year of employment. In this capacity, plaintiff renovated and built laboratory facilities, performed carpentry work involving sheet metal and plastic, interpreted blueprints, ran safety courses on machinery, and instructed junior mechanics on how to use machinery and lay out jobs. Plaintiff constructed special shipping crates, cabinets, pieces of furniture, "hot boxes," and custom pallets ranging from one to twelve feet long.
Construction of the laboratory facilities required plaintiff to install large vent hoods and lab benches weighing approximately one hundred pounds. The "hot boxes" and unistrut racks (bolting or clamping devices) with which plaintiff worked could weigh in excess of one thousand pounds. Plaintiff also worked with gas cylinders weighing approximately two hundred pounds and plastic Lucite boxes weighing roughly seventy pounds. Plaintiff explained that the laboratory construction was a constantly recurring process, because when projects were completed the labs would be disassembled and re-built.
Exxon required mechanics to "have the physical capability and manual dexterity to perform advanced mechanical work." Plaintiff performed the full scope of his duties as a senior construction mechanic up until October 1986, when plaintiff suffered a severe injury to his left elbow, which required four surgeries. Prior to this injury, plaintiff had worked without restriction on ladders and scaffolding at heights up to thirty feet. He would regularly lift and carry objects ranging from twenty-five to over fifty pounds. Plaintiff acknowledged that lifting and carrying objects weighing twenty-five to fifty pounds and working at heights were at times physical requirements of his job as a construction mechanic.
Plaintiff was placed on light duty after the October 1986 injury. He could no longer work at heights and could not lift objects over twenty-five pounds. Plaintiff also experienced pain on the entire left side of his body as a result of his elbow injury and subsequent operations.
Following surgery in 1990, plaintiff worked two or three hours a day for a couple of days a week and gradually increased his schedule to working four hours per day, five days a week, a schedule on which plaintiff remained for "[q]uite a few years." Plaintiff attempted to increase his hours first to five per day and then to six per day. However, as plaintiff explained:
It was too much to [work] five days a week, okay? The four hours a day was working out fine, but it was also interfering with some of the work that I had to do in work, and I made the suggestion to Dr. Marcus that it might be more beneficial to the company and to me to work, you know, eight-hour days, and rest on the middle of the week, rather than to continue on four-hour days, because I could do more than four hours a day, but I couldn't do five, six-hour days.
Around 1993, plaintiff began working eight-hour days four times per week, Monday, Tuesday, Thursday, Friday and having Wednesday off. While working this schedule, Exxon permitted plaintiff to leave work early if he was in pain or became fatigued, a privilege of which plaintiff availed himself about five or six days per month. Plaintiff was also allowed to take rest breaks as needed and was given days off to visit his doctors.
Back in March 1991, plaintiff had been given a functional capacity test, which revealed that he could lift sixty pounds from floor to knuckle, forty pounds from knuckle to shoulder, and thirty-five pounds from shoulder to overhead, although plaintiff disagreed with this last finding. Plaintiff underwent a subsequent functional capacity evaluation on February 19, 1997, at which time plaintiff could lift a maximum of only twenty pounds from floor to knuckle, ten pounds from knuckle to shoulder, and plaintiff was unable to lift any weight overhead. Plaintiff admitted that he "cannot put [his] left arm above [his] shoulder."
The functional capacity test further revealed that plaintiff could carry a maximum weight of only twenty pounds and could push or pull a maximum weight of fifty pounds. These results fell far short of the "job demand" requirements, which provided that a construction mechanic should be able to lift over one hundred pounds floor to knuckle, fifty pounds knuckle to shoulder, fifty pounds overhead, and carry over one hundred pounds.
The 1997, evaluation concluded that plaintiff was physically able to perform light labor, rather than the medium labor required of a construction mechanic. Plaintiff conceded that "to a certain capacity" he was not able to perform the full range of functions he had done prior to his October 1986 injury. He agreed that there were occasions when he was performing light duty work, he would still have to go home early due to exertion. Plaintiff pointed out that he always accomplished his tasks, and that there was never a time when he ...