June 11, 2010
MARC LIEBESKIND, PLAINTIFF-APPELLANT,
COLGATE-PALMOLIVE CO., DEFENDANT-RESPONDENT, AND TRANSNET CORP., DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10353-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 12, 2010
Before Judges Baxter, Alvarez and Coburn.
By order dated May 9, 2008, defendant Colgate-Palmolive obtained partial summary judgment dismissing plaintiff's claims brought pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, "for disability discrimination and failure to reasonably accommodate his alleged disabilities." Plaintiff appeals from that order and from a subsequent order dated June 6, 2008, which denied his request for further discovery and a case management conference.
Plaintiff now offers the following arguments: the trial court erred by (1) entering summary judgment; (2) not extending the time for discovery and scheduling a case management conference after granting summary judgment; (3) failing to recognize that the complaint contained other viable claims as to which plaintiff was entitled to further discovery; (4) finding that plaintiff had failed to provide needed expert evidence on the existence of his disability; (5) refusing to find that Colgate-Palmolive perceived him as disabled by his asthma; (6) concluding that plaintiff was not employed by Colgate-Palmolive for the purposes of the LAD; and (7) determining that the Colgate-Palmolive building was not a place of public accommodation under the LAD.
After careful consideration of the briefs, record, and oral argument, we are satisfied that, with one exception, all of plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Nevertheless, we add the following comments as to the meritless claims and address that valid argument, which is number (3) in the above list.
The disability alleged by plaintiff is asthma. However, even if we assume, as plaintiff argues, that asthma can constitute a disability under the LAD, and even if we accept plaintiff's claim that his medical records indicate that he had asthma, we cannot overlook his failure to provide a report from a medical expert indicating that his particular condition was a disability. Where, as here, "the existence of a handicap is not readily apparent, expert medical evidence is required." Viscik v. Fowler Equip. Co., 173 N.J. 1, 16 (2002). On this issue, the judge's findings of fact were fully supported by the evidence, and since he applied the correct legal principle, we have no ground on which to base disagreement. R. 2:11-3(e)(1)(A). The judge also correctly recognized that the evidence failed to support plaintiff's claim that Colgate-Palmolive perceived him as being handicapped. Here, plaintiff relies on the accommodations made as a result of his complaints. However, evidence of accommodation does not provide adequate support for a claim that an employer viewed someone as disabled. See Heitzman v. Monmouth County, 321 N.J. Super. 133, 142 (App. Div. 1999), overruled on other grounds, Cutler v. Dorn, 196 N.J. 419 (2008). Here, the evidence clearly showed that those individuals who accommodated plaintiff's complaints never believed that he was disabled. Consequently, we are obliged to reject plaintiff's claim that the judge erred in dismissing his discrimination claim.
With respect to plaintiff's failure to accommodate claim, we note the complete absence of substantive evidence indicating that he was employed by Colgate-Palmolive. Indeed, to the contrary, the evidence showed overwhelmingly that his employer was TransNet Corp., a provider of information technology services to, among others, Colgate-Palmolive.
Pursuant to a written agreement, TransNet provided its services to Colgate-Palmolive as an independent contractor, and these parties agreed that the technical representatives assigned by TransNet to the Colgate-Palmolive site were not "employees of Colgate-Palmolive." These TransNet employees, including Liebeskind, were hired and supervised by TransNet, which paid their salaries and retained the rights of dismissal or reassignment. TransNet also supplied these employees with medical and dental benefits, life insurance, disability benefits, and vacation and sick days. Although Colgate-Palmolive supplied the equipment and workplace and although Liebeskind worked in this facility for five of his seven years with TransNet, those factors are not sufficient to establish an employment relationship with Colgate-Palmolive. Furthermore, Liebeskind's work, information technology, was not an integral part of Colgate-Palmolive's business, which was the manufacture and distribution of personal care products. Rather, it was precisely the type of service provided by TransNet. Consequently, under the principles set forth in Pukowsky v. Caruso, 312 N.J. Super. 171, 182-83 (App. Div. 1998), we are obliged to approve the judge's determination that Liebeskind was not employed by Colgate-Palmolive. Since only employees are entitled to pursue an action against an employer under the LAD, id. at 180, Liebeskind's action for failure to accommodate fails.
We affirm, as well, the judge's rejection of plaintiff's claim that the plant where he worked was a place of public accommodation. In fact, it is a private, highly secure facility to which the public is not invited. It does not fit within any of the places of public accommodation listed in the LAD. N.J.S.A. 10:5-5(1). Nor is it such a place under the definition set forth in Thomas v. County of Camden, 386 N.J. Super. 582, 591 (App. Div. 2006).
Finally, we turn to plaintiff's third argument. Plaintiff contends that his complaint suggested two other causes of action, failure to hire based on age discrimination under the LAD and a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The latter claim is not available as to Colgate-Palmolive since it was not plaintiff's employer. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990).
More importantly neither of these claims was actually ruled upon by the judge, and there is no order dismissing them. The order of May 9, 2008 dealt only with the plaintiff's claims for disability discrimination and failure to accommodate. The order contains no language indicating that those were the only claims in the complaint, and it is styled as an order for partial summary judgment on those claims alone. The order of June 6, 2008 was entered in response to plaintiff's application for continued discovery concerning his age discrimination and CEPA claims. The judge denied the application for further discovery time and a case management conference, stating as his reason at the end of the order: "Defendant Colgate was dismissed from [the] case on summary judgment." The motion was decided without oral argument and without a written or oral opinion other than the words just quoted, which inaccurately describe the effect of the earlier order since it only granted partial summary judgment.
Neither the order of May 9, 2008, nor the judge's opinion accompanying that order, dealt with these two additional claims. Thus, there is no order with respect to those claims. Since appeals may only be taken from orders, Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001), and since, in addition, the validity of those claims has not yet been determined expressly by the trial judge, we have no occasion to address them.
None of the trial judge's orders resolved this case as to all issues; therefore, the appeal was premature. Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974). Given the judge's remarks about plaintiff's right to appeal at the end of the May 9, 2008 hearing and the reason given by the trial judge for his later order, we deem it appropriate to overlook plaintiff's failure to seek leave to appeal and hereby grant that leave nunc pro tunc.
Although we affirm the trial judge's order dismissing the disability and failure to accommodate claims, we are obliged to remand for resolution of the outstanding issues, which include the viability of the age discrimination and CEPA claims. If either of those claims are deemed viable, the trial court shall reconsider the question of further discovery and case management.
Affirmed and remanded.
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