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Potente v. County of Hudson

June 6, 2006

JOSEPH POTENTE, PLAINTIFF-RESPONDENT,
v.
COUNTY OF HUDSON, DEFENDANT-APPELLANT, AND CARMEN MESSANO, INDIVIDUALLY AND IN HIS CAPACITY AS PROSECUTOR FOR HUDSON COUNTY; ROBERT B. MARTIN, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF OF INVESTIGATIONS FOR THE OFFICE OF THE HUDSON COUNTY PROSECUTOR, DEFENDANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 378 N.J. Super. 40 (2005).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court must determine whether a directed verdict on the subject of failure to accommodate was properly entered and whether pre-judgment interest is a remedy cognizable under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49.

In 1982, Joseph Potente was hired as an investigator for the Hudson County Prosecutor's Office. He served continuously in that position until he was injured, on duty, in an automobile accident in December 1993. He received a worker's compensation award during his recovery and eventually was cleared to return to work six hours a day followed by two hours of therapy. Because his neck and shoulder injuries rendered him unable to use a weapon, he was assigned for three weeks to answer phones and talk on the radio. He was later transferred to full-time duty in the domestic violence section, which involved interviewing victims at the Prosecutor's Office. Potente worked in the domestic violence section until September 20, 1994, when he took sick leave to undergo shoulder surgery. Although his injury was work related, he did not seek to reopen his worker's compensation case; instead, he used all of his accrued sick and vacation leave during the recovery period. His sick and vacation time expired on November 10, 1994, and thereafter he applied for state disability benefits. Potente testified that he requested light duty positions but was repeatedly told that such positions were not available and that he had to return "100 percent or not at all."

On November 22, 1994, Potente sent a memorandum to his direct supervisor, James Hoppes, requesting a leave of absence due to the surgery and continuing therapy. On November 23, Hoppes wrote back and asked Potente to provide, by November 28, a more detailed account of the injuries and treatment. On November 28, Potente sent a memorandum to Hoppes and Robert Martin, his ultimate supervisor, explaining his injuries and suggesting that his treating physician could be contacted for further information. On November 29, Hoppes hand-delivered a letter from Martin to Potente, which denied Potente's request for leave because it was "unspecified," instructed Potente to return to work on November 30, and stated that failure to comply would result in disciplinary action. Upon receipt of Martin's letter on November 29, Potente contacted several individuals to inquire about the letter, including Hoppes, his union president, and John Bigger, a union investigator.

At this point, the parties' accounts diverge. The County of Hudson asserts that Bigger contacted Martin on November 29 and suggested that they arrange a meeting on November 30 with Potente to discuss several issues, including Potente's medical condition and exhaustion of all of his vacation and sick time; potential accommodations, including a leave of absence; and making arrangements so Potente could complete the appropriate paperwork to apply for unpaid leave. Martin found the suggestion to be reasonable but emphasized that Potente had to report to work on November 30. According to Hudson County, on November 29, Bigger and Wilder separately informed Potente about the proposed meeting. Bigger also relayed to Potente that the union's labor attorney recommended that Potente return to work. When Potente responded that he had no transportation, Bigger offered to drive him to work the following morning, and Potente accepted. Later that evening, however, Potente told Bigger he was not going to the meeting because his own attorney advised him that coming in would "mess up his disability case." On the morning of November 30, Bigger called Potente and told him it was not too late to come in. Potente repeated that his counsel advised him not to do so. In a telephone conversation with Hoppes that day, Potente said he understood that, because his sick time had run out, he was absent without authorization.

Potente denies that such a meeting was ever discussed or scheduled. He notes that there is no documentary evidence about the meeting and that Martin did not mention it at his deposition when asked about the importance of the November 30 deadline.

At some point on November 30, Potente faxed a letter to Hudson County requesting family leave. In a response dated November 30 (which Potente testified that he did not receive until December 1), Martin informed Potente that he did not qualify under the federal or New Jersey family leave statutes and reiterated that Potente was required to return to work on November 30. The next communication between the parties was not until December 7, when Hoppes hand-delivered a letter to Potente informing him that he had been terminated because he was absent since November 18, 1994, without leave or permission.

Potente filed a complaint in federal court against the County of Hudson, the Hudson County Prosecutor, and Martin. The federal claim was dismissed. Thereafter, in December 1999, Potente filed a LAD complaint in state court and the case eventually went to trial in January 2003. Potente withdrew the claim against the Hudson County Prosecutor's Office and the claim against his supervisor was dismissed, leaving Hudson County as the sole remaining defendant. At the conclusion of defendant's case, the trial court granted Potente's motion for a directed verdict with respect to liability based on failure to accommodate. The case was submitted to the jury for a determination of damages. The trial court also granted Potente attorney's fees and pre- and post-judgment interest.

Defendant appealed. The Appellate Division, in an opinion published at 378 N.J. Super. 40 (2005), affirmed the trial court's grant of a directed verdict and the award of pre-judgment interest. The Supreme Court granted defendant's petition for certification.

HELD: Pre-judgment interest is available under the Law Against Discrimination. However, the trial court improvidently granted a directed verdict on the subject of failure to accommodate and thus the matter is reversed and remanded for a new trial.

1. The LAD and its implementing regulations require an employer to make a reasonable accommodation to the limitations of an employee with a disability, unless it would impose undue hardship on business operations or where it can reasonably be determined that the employee, as a result of the employee's disability, cannot perform the essential function of the job even with a reasonable accommodation. (pp. 9-10)

2. A motion for a directed verdict must be denied if, after accepting as true all the evidence which supports the position of the party defending the motion and according that party the benefits of all reasonable and legitimate inferences derived from that evidence, reasonable minds could differ. Applying the applicable standards to this case, the directed verdict was improvidently granted because reasonable minds could differ regarding whether defendant was willing to accommodate Potente. An employee cannot refuse to cooperate with an employer's efforts to accommodate his disability and then claim failure to accommodate. It was for a jury to determine whose version of the facts was correct; whether a November 30 meeting was scheduled; whether defendant was willing to discuss accommodating Potente at that meeting; and, if so, the circumstances under which Potente did not attend. (pp. 10-11)

3. The Appellate Division correctly concluded that pre-judgment interest is permitted under the LAD. Moreover, pre-judgment interest may be assessed against a public entity. The LAD does not contain a provision barring prejudgment interest and the bar contained in the Tort Claims Act does not apply to LAD claims. Thus, if Potente is successful on retrial, he will be entitled to pre-judgment interest. (pp. 11-16)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial consistent with this opinion.

The opinion of the court was delivered by: Justice Long

Argued March 6, 2006

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE LONG's opinion.

In 1994, plaintiff, Joseph Potente, after undergoing shoulder surgery, was terminated from his position at the Hudson County Prosecutor's Office for excessive absence without permission. Plaintiff filed a complaint in federal court against the County of Hudson, the Hudson County Prosecutor, and his supervisor. After plaintiff's federal claim was dismissed and pendant jurisdiction was denied, plaintiff filed a Law Against Discrimination (LAD) complaint, N.J.S.A. 10:5-1 to -49, in state court against the County of Hudson. The trial judge granted a directed verdict on liability in plaintiff's favor and a jury returned an award of damages. In addition, the trial judge awarded pre- and post-judgment interest and counsel fees.

We have been asked to determine whether a directed verdict on the subject of failure to accommodate was properly entered and whether pre-judgment interest is a remedy cognizable under the LAD. The Appellate Division answered those questions affirmatively. Although we agree that pre-judgment interest is available under the LAD and affirm the Appellate Division's judgment in that respect, because we have concluded ...


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