On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2833-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Ashrafi.
Plaintiff Malcolm Sinclair appeals from a judgment dismissing his claim of disability discrimination after ten days of trial. He faults the trial judge's legal ruling with respect to the required elements of his cause of action and her factual findings on the sufficiency of evidence he presented. We conclude that the trial judge's understanding of the law and assessment of the evidence were both correct. Therefore, we affirm.
The trial judge granted defendant's motion to dismiss at the conclusion of plaintiff's case in chief under Rule 4:37-2(b) and Rule 4:40-1. Under those rules, the judge was required to view all evidence presented and all reasonable inferences drawn from that evidence most favorably to plaintiff to determine whether a rational jury could have found in favor of plaintiff on his claim of disability discrimination. R. 4:37-2(b); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005). If, applying this standard, "reasonable minds could differ, the motion must be denied." Sons of Thunder v. Borden, Inc., 148 N.J. 396, 415 (1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). On appeal, our standard of review is the same as that of the trial judge. RSB Lab. Serv., Inc. v. BSI Corp., 368 N.J. Super. 540, 555 (App. Div. 2004).
It is not the function of the trial judge or an appellate court, but that of the jury, to evaluate the credibility of the testimony or other evidence. See Potente v. County of Hudson, 187 N.J. 103, 111-12 (2006). Nevertheless, "when the proof of a particular fact is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist there is no question for the jury to decide." Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 493 (1956); see also City Check Cashing, Inc. v. Mfrs. Hanover Trust Co., 166 N.J. 49, 64-65 (2001) (no triable issue of fact where no rational jury could view the evidence in favor of plaintiff); cf. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 532-40 (1995) (similar standards apply to summary judgment under R. 4:46-2(c) and a motion for dismissal under R. 4:37-2(b), including whether the evidence "is so one-sided that one party must prevail as a matter of law")(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)).
In this context, we may take into consideration the entirety of testimony from a witness rather than isolated excerpts favorable to the party opposing a motion to dismiss. See Ritondo v. Pekala, 275 N.J. Super. 109, 111 (App. Div. 1994) (during cross-examination, plaintiff's expert "nullified" and "abandoned" opinions he expressed in direct testimony).
Plaintiff worked thirty-eight years for defendant Domb Lighting and Electrical Supply Company before he was terminated at the age of seventy-four following a serious illness. In the later years of his employment, he worked as a "counterman," spending eighty percent of his time pricing invoices for electrical contractors. Some of his other duties were waiting on customers and receiving and making phone calls. In the two years or so before his termination, his work duties were sedentary and required no heavy lifting. During his tenure at Domb, plaintiff was considered a loyal and dedicated employee.
In 2001, at the age of seventy-two, plaintiff took temporary disability leave for quadruple bypass surgery. After he recovered from the surgery, plaintiff communicated with Doris Clemente, the bookkeeper at Domb, to arrange his return to work. Domb gladly accepted him back, requiring only a note from his doctor indicating that he was medically cleared to work. Plaintiff provided a handwritten note from his cardiologist stating that he was cleared to return to work the following week. Domb accommodated plaintiff's heart condition by modifying his schedule and reducing some of his duties, in particular any lifting and similar manual tasks that he had previously done. Plaintiff was completely satisfied with these accommodations.
Two years later, on September 4, 2003, plaintiff was unexpectedly hospitalized with pancreatic cancer. Emergency surgery was performed. He remained hospitalized through September 26, 2003, and then continued his recovery at home. Up to October 21, 2003, Domb paid plaintiff his regular salary by applying sick, vacation, and personal days to his absence. As of that date, plaintiff had missed thirty-four consecutive days of work and no longer had leave time available.
Plaintiff then obtained temporary disability benefits through November 30, 2003. In applying for those benefits, plaintiff verified that he was completely disabled from working because of his cancer. Plaintiff's surgeon, Dr. William Diehl, also confirmed his disability by certifying to the Division of Disability Benefits on October 16, 2003, that plaintiff was ill with pancreatic cancer and would not be able to return to work until December 1, 2003.
During October 2003, plaintiff's daughter Christine was in contact with Doris Clemente at Domb, generally seeking assistance with medical insurance and disability benefits. According to Christine's testimony at trial, she told Clemente that her father intended to return to work and gave her a note written by Dr. Diehl regarding plaintiff's absence through December 1, 2003. When Clemente was called to testify at trial, she denied receiving the note. The note was admitted in evidence. It was typed on Dr. Diehl's letterhead and dated October 27, 2003, and it stated in full:
Mr. Malcolm Sinclair underwent surgery for treatment of cancer of the pancreas. He is still recovering from the surgery and will not be able to return to work until 12/01/2003. Should you have any questions, please feel free to contact me at any time. William L. Diehl, M.D.
Neither Christine, plaintiff himself, nor anyone else ever made any specific request for workplace accommodations.
In his case in chief, plaintiff called Leslie Domb Platt, president and CEO of Domb, to testify about the circumstances of plaintiff's termination. Platt denied ever receiving Dr. Diehl's note or learning from anyone else that plaintiff intended to return to work on December 1, 2003. She admitted that she never considered any accommodations for plaintiff before deciding to terminate him. She said she would have accepted him back at work and considered accommodations if plaintiff had asked for them. She was familiar with the seriousness of pancreatic cancer and believed that few people stricken by it recover. Her belief was consistent with the testimony of Dr. Diehl, who acknowledged statistical data that only five percent of patients stricken with pancreatic cancer recover. Plaintiff has been one among the small percentage of survivors.
Platt testified she decided to terminate plaintiff on the advice of counsel and her insurance agent. She said that Domb's insurance carrier did not allow the company to carry an absent employee after allotted leave time had been used. Although she knew plaintiff qualified for Medicare, she became concerned that plaintiff's wife did not yet qualify. She decided on October 29, 2003, to terminate plaintiff's employment both to comply with the requirements of the company's insurance policies and to give adequate notice to plaintiff and his wife so that they could make alternative arrangements for medical insurance coverage. With the assistance of legal counsel, she wrote a letter dated November 4, 2003, stating that plaintiff's employment would be terminated effective November 30, 2003. Most of the letter pertained to information about COBRA coverage for medical insurance.
After his termination, plaintiff continued to suffer from very serious health problems. He began a regimen of chemotherapy on November 23, 2003. He reacted poorly, developing a rash, nausea, diarrhea, and severe swelling. On December 8, 2003, he was admitted to Morristown Memorial Hospital and was diagnosed with acute chemotherapy toxicity and internal bleeding from an ulcer. Later during his hospitalization, he was also diagnosed with colon cancer. In late January 2004, plaintiff was discharged from the hospital to a rehabilitation facility. He did not return home until February 2004. He needed additional surgery for his colon cancer, but that surgery was delayed until April 2004 to allow ...