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Digiorgio v. Board of Education of the City of Elizabeth

April 30, 2010

CARMINE DIGIORGIO, PLAINTIFF-APPELLANT,
v.
BOARD OF EDUCATION OF THE CITY OF ELIZABETH, THOMAS G. DUNN, JR., PABLO MUNOZ, AND AIDA GARCIA, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2410-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 15, 2009

Before Judges Grall, Messano and LeWinn.

Plaintiff appeals from the April 18, 2008, order of the Law Division, entering judgment for defendants following a jury trial on his complaint alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.

The pertinent trial evidence may be summarized as follows. The Board of Education of the City of Elizabeth (Board) hired plaintiff as a school security guard in 1998. In 2002, plaintiff was diagnosed with colon cancer and underwent medical treatment including the implantation of a medical port in his chest; subsequently plaintiff underwent additional surgery including an ileostomy which required him to wear adult diapers. The Board suspended plaintiff but rescinded that suspension after plaintiff filed a grievance through his union.

In March 2003, plaintiff's acquaintance, Gerry Sanzone, a security guard employed by the Board, informed plaintiff that a similar position was available at the Board's administration building. Plaintiff applied for that position and was hired effective May 5, 2003. Plaintiff's employment responsibilities included signing in visitors, monitoring metal detectors, securing the premises, and stamping the outgoing mail. His post was located in the building's lobby.

Soon after plaintiff began this employment, Sanzone noticed that he would make "[q]uite a few" racist and sexist remarks about other employees. Board employee, Margaret Alago, identified as a staffing assistant in the Board's Human Resources Department, also overheard plaintiff make a sexist remark, which offended her to the point that she came out of her office and called plaintiff "a disgusting pig." At about this time, it was discovered that plaintiff was also reading outgoing mail and opening packages, which he was not authorized to do.

Alago reported plaintiff's conduct to Charlie Smith, the Board's Affirmative Action/EEOC Officer. At Smith's request, both Alago and Sanzone submitted written complaints. Alago stated that plaintiff continued to make sexist comments about female employees. She testified that she was unaware of plaintiff's medical condition at this time. Sanzone stated that, in addition to "us[ing] foul language and mak[ing] sexual comments[,]" plaintiff also "open[ed] mail and look[ed] into packages [and] bags of other people."

In the course of his investigation, Smith also received a written complaint from Joyce Ortel, the Board's Office Manager, stating that plaintiff "made a sexual reference to her, which she was embarrassed and hurt by...."

Smith interviewed plaintiff, Sanzone, Alago and Ortel separately. Upon concluding his investigation, Smith found that the allegations against plaintiff were credible and recommended that he be disciplined, suspended, or discharged. On September 18, 2003, the Board voted to terminate plaintiff's employment effective October 2, 2003.

On July 5, 2005, plaintiff filed his complaint alleging LAD violations, specifically claiming that he was terminated because of his medical condition. At trial, he asserted that because of his surgery, the resulting incontinence and his occasional unpleasant odor, his co-workers conspired to fabricate complaints against him, ultimately resulting in his termination. Contrary to Alago's testimony that she knew nothing of plaintiff's medical condition at the time, plaintiff testified that he told both Alago and Sanzone about his medical condition and his use of diapers, and that both of them made comments about his "odor[.]"

At the conclusion of an eight-day trial, the jury returned a unanimous verdict finding that plaintiff had failed to prove by a preponderance of the evidence that he had been subjected to ...


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