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Domurat v. Ciba Specialty Chemicals Corporation

July 05, 2002


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Number L-9885-97.

Before Judges Collester, Lintner and Parker.

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


Argued April 23, 2002

Plaintiff appeals from a jury verdict in favor of defendant in an employment discrimination case under the Law Against Discrimination (LAD). N.J.S.A. 10:5-1 to -42. Plaintiff alleged that he was wrongfully discharged by Ciba Specialty Chemicals Corporation (Ciba) in violation of the LAD because of his age (50) and his handicaps (Attention Deficit Disorder (ADD), alcoholism, depression and Lyme disease) *fn1 . We affirm.

Prior to his employment by Ciba, plaintiff had a history of academic and employment success. He earned an Associates Degree summa cum laude and was valedictorian of his junior college class in 1966. In 1968, he earned his Bachelor of Science degree with a major in botany and a minor in chemistry. After graduating from college, he held a number of jobs with increasing responsibilities.

Plaintiff was hired by Ciba as a Technical Sales Representative on September 1, 1978, to sell and market Ciba's pigments to industrial customers. He worked from his home in New Jersey and reported to a supervisor in Ciba's Newport, Delaware, facility. He was promoted to Senior Technical Sales Representative in the late 1980's. In that position, he was responsible for major national accounts. His job responsibilities included preparing written reports, such as: (1) call reports, documenting key events with customers and customer needs, to identify sales opportunities and develop new products; (2) monthly reports describing activities in his sales territory; (3) quarterly reports to advise customers on the work Ciba did on their behalf during the quarter; and (5) expense reports. Plaintiff submitted these reports to his Delaware-based managers. Plaintiff was also responsible for developing "action plans related to market segment sales strategies.

Plaintiff received good annual appraisals throughout his years at Ciba until 1991. From 1985 to 1989, his annual appraisals indicated that he met or exceeded his job requirements. In 1990, he was rated a "valued contributor" and received satisfactory ratings in all performance skill factors. His supervisor testified that prior to 1991, plaintiff's customer relationships were good and, although his reporting was not perfect, he "met expectations" in this area.

In 1991, plaintiff's performance deteriorated significantly. In the early part of that year, plaintiff was filing his reports timely. By July, however, his reporting had become sporadic and he had not developed customer-specific business plans. His supervisor, Christopher Whiston, rated his performance for that year below the lowest ranking and plaintiff was placed on a ninety-day performance probation. In a written response to his 1991 evaluation, plaintiff acknowledged that:

The severity of this review has reopened my eyes and mind to the overall requirements and responsibilities of my position as a Senior Tech. Sales Rep. within the Pigments Division. Some personal family matters over the past several years have diverted my attention away from some of these important responsibilities. While I don't believe that my overall territory customer responsibilities have been neglected, certain job requirements have been lacking and extra effort is in order.

I understand the objectives and terms for my continued employment with Ciba-Geigy. I can and do rededicate myself to fulfilling all of the requirements of my position and look forward to being judged a valued contributor, and more, to the Pigments Division of Ciba-Geigy.

Plaintiff's ninety-day probation required him to perform the basic functions of his job, such as making and documenting customer needs and problems through call reports, analyzing potential opportunities for expanding Ciba's market and submitting all reports on time. Plaintiff successfully completed his probationary requirements by April 1992. His 1992 and 1993 performance appraisals indicated that he was, once again, a "valued contributor." Whiston considered plaintiff "a valuable part of the organization" because he had a lot of years of experience, he had developed customer relations, he understood the business and "[h]e was intelligent, likeable, friendly. He was a strong combination of ... factors."

In 1994, Whiston was promoted and plaintiff's new supervisor was Paul Legnetti. Legnetti had been employed by Ciba since 1981 and had worked with plaintiff from 1981 to 1983, traveling with him five or six times a year. Legnetti had a high regard for plaintiff and "thought Greg was a competent professional salesperson, always ... highly regarded by his customers, ... was well-liked within the organization." Legnetti rated plaintiff a "valued contributor" in his 1994 annual appraisal but noted "disappointing results" in plaintiff's Dispersion House Study, "not so much from ... the information gathered as from the reporting of the results." The Dispersion House Study was assigned to plaintiff during 1994, requiring him to do a market analysis of sales opportunities in the specialized dispersion industry. He had been assigned similar studies in the past.

In the summer of 1994, plaintiff again began experiencing personal problems and by early 1995, four of his key national accounts complained to Legnetti about lack of services. Specifically, the complaints indicated that plaintiff was not following up on a number of items ... in order to support and fulfill that customer's expectations, that letters about pricing or about other commitments that we were making to those customers were not being delivered on a timely basis, that the overall level of support and commitment that they perceived when Greg was representing Ciba had declined .... [O]ne customer related to [Legnetti] that it almost looked as though Greg didn't know very much about their business anymore.

That complaint was from a very long-term customer who had known plaintiff for a long time.

Plaintiff testified that he had been a "social drinker" until 1991 when he stopped drinking altogether because his wife threw him out of the house for having "beer breath." He subsequently attended Alcoholics Anonymous for three months at his wife's urging and did not drink alcohol at all. In the summer of 1994, however, he began drinking again. At the same time, plaintiff's wife had medical problems for which she was taking a narcotic pain killer and plaintiff began to abuse her medication. His son was being treated for Attention Deficit Disorder (ADD), and plaintiff abused his son's medication as well.

In January 1995, plaintiff saw a psychiatrist, Dr. Jay Kuris, and told Dr. Kuris that he thought he had ADD and that he was an alcoholic. Plaintiff testified that Dr. Kuris prescribed Cylert for ADD, Wellbutrin for depression and Klonopin to help him sleep and stop drinking alcohol. Dr. Kuris did not testify.

Later in 1995, plaintiff's performance with one customer became so seriously deficient that Legnetti assigned the customer to another sales representative. Legnetti himself observed a general decline in plaintiff's performance: his reports became sporadic, lacked their former quality and no longer contained necessary details. Legnetti spoke to plaintiff about his observations and the customer complaints "on a fairly regular basis." He asked plaintiff if there was anything causing the problems and plaintiff told him "that he had some personal issues at home that required a bit of his attention; his wife wasn't feeling well, ... he had some issues with his son that again required some of his attention, ... and that - he had been doing personal projects and things like that around the house that took up a bit of his time." Legnetti took no action at that time, however, hoping plaintiff would work out the problem.

In June 1995, Legnetti traveled with plaintiff on a number of sales calls and personally observed plaintiff's poor performance in front of customers. He observed that plaintiff was confused, disorganized, "didn't recall the details of prior conversations or agreements with those customers, [and] that the overall preparation and analysis that's required before one goes to see a major customer hadn't occurred." Legnetti also observed that plaintiff's driving was erratic, "that he appeared inattentive while he was driving, speeding up and slowing down ... in the middle lane. Veering over to make a quick exit at the exit ramp."

Legnetti spoke with plaintiff about his observations and plaintiff admitted that he was unprepared for the calls and had forgotten to bring along necessary documents. He also admitted that he was "not functioning to [his] full capacity," and that he was experiencing a number of personal problems on new medications he was taking. He told Legnetti his doctors thought he might have ADD.

Legnetti reported plaintiff's poor performance to Whiston, now Legnetti's supervisor, and they agreed to place plaintiff on probation again, hoping plaintiff would respond as he did in 1992. Before placing plaintiff on probation, however, Legnetti described the situation to John DeSousa, Ciba's Human Resources Manager, who became concerned that plaintiff's erratic driving might be caused by substance abuse. DeSousa recommended that plaintiff be seen by Ciba's on-site Health Services Department (Health Services) in Newport, Delaware.

Plaintiff went to Delaware on July 13, 1995, where he met with Legnetti to discuss performance issues and then with Kay Ciabattoni, an Occupational Health Nurse and head of the on-site Health Services. Plaintiff told Ciabattoni that he was receiving psychotherapy and medication for ADD and discussed his drinking history and his various ailments, including suspected Lyme Disease and a recent shoulder injury. Plaintiff showed Ciabattoni the ten to twelve different medications he was taking, including a narcotic pain killer and an over-the-counter allergy medication.

Plaintiff met with Dr. David Jesic, an on-duty contract doctor who worked part-time at Health Services. Ciabattoni and Dr. Jesic suggested that plaintiff be evaluated at Bowling Green, a local drug and alcohol treatment center, to determine whether the multiple medications were causing his lack of concentration, difficulty driving and other recent problems. Ciabattoni was aware that plaintiff had been taking his wife's pain medication and was concerned that "not all of [plaintiff's] doctors knew ... all of the other medications that other doctors were prescribing."

Plaintiff was evaluated at Bowling Green on July 25, 1995, where it was determined that he was over-medicated and needed to taper off on some of the drugs. Ciabattoni approved plaintiff's request for evaluation and treatment at Carrier Clinic, closer to his home.

On July 28, 1995, plaintiff was evaluated at Carrier by a psychiatrist, Dr. Patel. He gave the same medical history he had provided to Health Services and told Dr. Patel that he was a "recovering alcoholic" but had stopped drinking in May 1995. Dr. Patel told plaintiff he was "probably taking too many drugs," and that he needed to taper off Klonopin, which has a sedative effect. Dr. Patel reported to Ciabattoni that plaintiff's performance problems were related to the medications he was taking and recommended that plaintiff become "affiliated with some sort of an AA group" and with Carrier's Out-Patient Alcohol Treatment Services (OATS). After attending only one session at OATS, however, plaintiff decided he did not need the program because he had already stopped drinking on his own.

On July 27, the day he was evaluated at Carrier, plaintiff requested and was granted work restriction limiting him to paperwork at home because he was uncomfortable driving with all the medications he was taking. On August 10, 1995, plaintiff requested, and was granted, an extension of the work restriction because he was still feeling the effects of the medications. On August 16, 1995, plaintiff saw a new psychiatrist, Dr. Vasquez, who specialized in ADD and substance abuse. Dr. Vasquez recommended that plaintiff attend ninety AA meetings in ninety days, but plaintiff declined to do so.

On August 25, 1995, plaintiff was examined at Health Services and cleared for return to a full work schedule. Dr. Vasquez, his treating psychiatrist, completed a "return to work" form indicating plaintiff's diagnosis was "alcohol dependence." Plaintiff did not ...

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