On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1451-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Waugh.
Plaintiff Eli*fn1 Rodriguez appeals an order dismissing his discrimination action against Guest Packaging, LLC (Guest), and Mark Monaghan, his supervisor, on a Rule 4:40-1 motion following the close of evidence at a jury trial. We reverse and remand for a new trial.
We discern the following facts and procedural history from the record on appeal.
Guest manufactures, packages, and distributes shampoos, conditioners, mouthwash, soap and other amenities for the lodging industry. Rodriguez started working for Guest as a compounder in August 2005. He and other compounders were responsible for blending chemicals and other ingredients in a large vat, using specifications contained on a "batch card." To ensure quality control, an onsite laboratory tested samples of each batch during the mixing process.
Plaintiff worked the second shift, which was from 3:00 p.m. to 11:00 p.m. Batches were often started on one shift and then "handed off" to compounders on the following shift. When this occurred, the outgoing compounder was required to tell the incoming compounder the status of the batch and any instructions for continuing the process.
According to Guest, Rodriguez's supervisors began to notice that he had performance and behavioral problems after his ninety-day introductory period ended. These problems were documented through Guest's three-part evaluation system.
On September 10, 2007, Michael Phillips, Rodriguez's direct supervisor, sent an e-mail to Monaghan recommending Rodriguez be terminated. After recounting Rodriguez's more recent disciplinary issues, Phillips explained:
There are other concerns we have regarding Eli's attendance which have been documented & his repeated signings for OT, only to call out or not show up. We have had issues with other operators not feeling comfortable working with Eli, so much so, that one of the operators is contemplating signing a 1st shift posting just to get away from the uncomfortable atmosphere. [At] this point after Eli's recent review & these most recent events, I would suggest that Eli is not helping us move forward & we should consider termination effective immediately. . . . Again, I don't feel or have confidence in Eli turning this around & helping us, I feel like he is hurting us & holding us back. Multiple PILs, written, verbal, warnings, reviews, all have gone unnoticed by Eli. Monaghan accepted Phillips's recommendation. On September 12, he prepared and signed the payroll form necessary to terminate Rodriguez.
Rodriguez, however, had called out sick from work on Friday, September 7, so that he could visit his doctor because of a pain in his stomach. According to Rodriguez, he had begun to experience a pain in July 2007, but waited to see a doctor because he did not want to miss work for fear of losing his job. The doctor diagnosed an umbilical hernia.
Rodriguez stayed home again on Monday, September 10, and returned to the doctor. The doctor gave him a note stating: "Mr. Rodriguez was seen in my office on 9/7/07 and 9/10/07. He is cleared to go back to work on 9/11/2007." The doctor also referred Rodriguez to a specialist.
Rodriguez saw the specialist on September 11. According to Rodriguez, the specialist told him he would need surgery to treat his condition. The specialist's notes indicate that Rodriguez was not in "acute distress" and scheduled an "elective umbilical herniorrhaphy" for September 14. Rodriguez went to Guest's human resources office, informed Guest of the diagnosis and proposed surgery, and submitted a leave of absence request due to disability. The request was ...