On appeal from Superior Court of New Jersey, Law Division, Morris County, L-2861-99.
Before Judges Conley, Newman and Carchman.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is plaintiff's appeal from a grant of summary judgment in favor of the defendants. Plaintiff, an employee of defendant, Mt. Holiness Memorial Park Organization (Park), developed cancer requiring the removal of a kidney, "five inches around it, the adrenals, the lymphs and one rib." He was absent from work for over eight months. Before plaintiff was cleared to return to work, Park hired another employee to replace him. Plaintiff claims that he was told his position would remain open until he recovered. Park asserted that the position was held open as long as possible, and when plaintiff failed to return, it had no other choice but to hire a new employee. This defense, of course, raises an issue of whether Park reasonably accommodated plaintiff's condition. Viscik v. Fowler Equipment Co., Inc., 173 N.J. 1, 19-20 (2002) (reasonable accommodation is an issue in a handicap discrimination case "in which an employer, rather than defending on the grounds that the employee was terminated for legitimate, non-discriminatory reasons, proffers the employee's inability to perform the job as a defense.").
However, the motion judge granted Park summary judgment in favor of the defendant based upon his conclusion that plaintiff had failed to prove the first prong of his prima facie burden, i.e., that he was "handicapped" within the meaning of the Law Against Discrimination (LAD). He based this conclusion upon his finding that plaintiff's handicap was temporary, focusing upon the eight month recuperative period. We reverse.
The facts viewed most favorably for plaintiff, as we must, Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 535-36 (1995), reveal the following. Prior to his replacement in October 1998, plaintiff had worked for Park since he was twelve or thirteen years old, some thirty-three years. It is undisputed that throughout this time, during which he first worked as a general laborer and then a machine operator, plaintiff was considered as satisfactorily performing his job.
On February 14, 1998, plaintiff was diagnosed with kidney cancer. Several days later, he underwent an operation during which the kidney, adrenal glands, lymph nodes and one rib were removed. Though disputed by Park, plaintiff asserts that while he was recuperating from his cancer surgery he had several conversations with Park's then president who was also in charge of the day-to-day operations of the cemetery. During these conversations, he was told not to worry about his job and that as soon as he was able to come back to work, his job would be waiting for him.
Plaintiff remained on the payroll of Park for some ten or eleven weeks from February 15, 1998, and received a full salary during that time. In April 1998, he filed a claim for temporary disability with the New Jersey Department of Labor claiming that he would be disabled from February 15, 1998, until August 24, 1998, later revised to October 26, 1998. He received disability payments until October 26, 1998, when his doctor authorized his return to work. However, unbeknownst to plaintiff, his position was filled with a full-time employee on October 13, 1998.
According to plaintiff and his son, when plaintiff called Park's president to advise her that he could return to work, she told him:
We have a problem. My brother fired you three months ago due to the extra expenses in health benefits and because he believes you are no longer able to perform your duties due to your cancer.
At the very least, it is clear from the deposition testimony of Park's two principals that the motivating factor for replacing plaintiff was the thought that his position could no longer be kept available for him. It is undisputed that in making that determination, Park was aware of the fact that plaintiff had kidney cancer which had necessitated the surgery and recovery period.
In order to survive the motion for summary judgment, of course, plaintiff must prove " that he was [handicapped],  that he was performing his job at a level that met his employer's legitimate expectations,  that he nevertheless was fired, and  that [the employer] sought someone to perform the same work after he left." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988). See also Viscik v. Fowler Equipment Co., supra, 173 N.J. at 14-15. Clearly the third and fourth prongs were satisfied. Though plaintiff was temporarily incapacitated, there is no evidence other than that he would have been able to return and perform his job satisfactorily such that the second prong also would survive summary judgment.
In granting the motion for summary judgment, the motion judge saw the issue as "whether a temporary inability to work while recuperating from surgery or injury is a handicap . . . ." In concluding it was not, and that, therefore, plaintiff failed to prove the first prong of his prima facie burden, the judge relied entirely upon federal and out-of-state cases decided under the federal Americans with Disabilities Act, 42 U.S.C.A. ' 12101 to 12213, the comparable federal Rehabilitation Act (RA), 29 U.S.C.A. ' 701 to 797(b), and counterpart state laws, all of which require, as an element of the protected "handicap" or "disability", substantial limitation upon one's activities. See e.g. 42 U.S.C.A. ' 12102(2)(A); 29 U.S.C.A. ' 705(9)(B). The duration of the impairment, then, is significant under the ADA, RA, and similarly patterned state laws. E.g., 29 C.F.R. ' 1630.2(j)(2)(ii); 29 C.F.R. ' 1614.203(b). Because of this requirement, all of the federal and out-of-state cases cited by the motion judge do stand for the proposition that "a temporary inability to work while recuperating from surgery or an injury is not a handicap or disability." But they do so because they involve claims brought under the ADA, the RA, or comparable state statutes. Sutton v. Lader, 185 F.3d 1203, 1209 (11th Cir. 1999) (RA); Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998), cert. denied, 526 U.S. 1018, 119 S. Ct. 1253, 143 L.Ed. 2d 350 (1999) (ADA); McDonald v. Commonwealth of Penn. Dep't of Public Welfare, Polk Center, 62 F.3d 92, 96-97 (3d Cir. 1995) (ADA and RA); Evans v. City of Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (RA); Wilmartha v. City of Santa Rosa, 945 F. Supp. 1271, 1276-77 (N.D. Cal. 1996) (ADA); Kramer v. K&S Assoc., 942 F. Supp. ...