On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6050-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and LeWinn.
Plaintiff Rueben Gillett appeals from a summary judgment in favor of defendant Fairleigh Dickinson University dismissing his complaint, which alleged disability discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We now reverse.
The evidence presented by the parties on the summary judgment motion, viewed in a light most favorable to plaintiff, and drawing all inferences in his favor, Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995), shows that he was hired for a temporary position as a senior general clerk in defendant's print shop on its Madison campus in August 2007. Later that month, he applied for a position as a Public Safety Officer (PSO). He was interviewed that October by Willie Thornton, defendant's Director of Public Safety, in the presence of Glenn Gates, Assistant Director of Public Safety, for an open PSO position. Contrary to Thornton's claims, plaintiff was not told that the position was "demanding," "excellent attendance" was important, there was a dress code, he could be fired for no reason during the ninety-day introductory period, or his employment depended on being a "quality worker."
On October 19, 2007, Thornton offered plaintiff a position as a PSO and in her offering letter stated that defendant "provides new employees with a 90-day Introductory Period. This is a time when you have an opportunity to evaluate the university and we have an opportunity to evaluate you. We are hopeful that you will be a long time contributor to our team."
Plaintiff's first day of work was October 22 at which time he was provided with the Departmental Policy Manual. All PSOs are expected to know and comply with this policy manual. Plaintiff reviewed the disciplinary code contained in this manual, which provided that "[r]epeated absences over and above authorized University benefits and without proper documentation" were Category I offenses and would "lead to immediate termination." Among Category II offenses, which subject the offender to discipline up to and including termination, are "unsatisfactory job performance" and "failure to comply with uniform and appearance requirements." Defendant's sick-time policy, contained in the policy manual, provided:
As much notice as possible should be given when calling out sick to ensure proper shift coverage. If you have used the 80 hours and you call out sick, you will be requested to provide a doctor's note.
Failure to provide a doctor's note after you used the 80 hours will result in disciplinary action up to and including termination. Three consecutive days off sick will require a doctor's note to be submitted.
The policy manual also addressed reporting time, time records, and overtime, although plaintiff denied having reviewed this section. It provided in pertinent part:
All Public Safety personnel will report for duty and be prepared to assume their posts at the prescribed start time of their shift. Public Safety personnel who are not prepared at the start of their shift will be considered late. Any officer with excessive lateness (as determined by the Director) will be terminated. Any officer with excessive absenteeism (as determined by the Director) will be terminated.
All Public Safety personnel will be required to fill out a bi monthly [sic] time sheet. At the end of the pay period, the 15th or last day of the month, all personnel are to submit the time sheet. The sheet will be verified by [the] Senior Sergeant and then submitted to the Lieutenant of Public Safety for submission to payroll.
Anyone found putting any time on the sheet, which was not authorized or which they did not work will be terminated for falsifying time records.
The parties dispute certain alleged infractions of the policy manual occurring during the Introductory Period. According to plaintiff, some of his co-workers wore blue jeans on the overnight shifts, but on one occasion Gates told him not to do so, and he complied with this instruction thereafter. Although it is undisputed that plaintiff did not report to work on November 14, plaintiff denies that he was a "no call, no show," as Thornton alleges, because he called in to report his illness. In this respect, plaintiff's time sheet indicates he was sick that day and his semi-monthly payment voucher, approved by Lieutenant Glenn Priesmeyer, indicates that he had an eight- hour sick day on November 14, and he worked eighty regular hours and thirty-three overtime hours during the period ending November 15. Furthermore, when Priesmeyer prepared plaintiff's performance evaluation on November 26, he rated plaintiff's attendance as "very good."
On December 3, plaintiff was again out of work. His time sheet and the Semi-Monthly Payment Voucher for the period ending December 15 indicate that December 3 was a sick day, which was approved by Sergeant Liz Quinones. Although Thornton characterized this day as a "no show, no call," plaintiff certified that he called to report his absence. Plaintiff further asserted that he accrued one sick day per month and, having been employed by defendant since August 2007, had not exceeded his accrued sick days as of December 15.*fn1
On December 17, plaintiff slipped on ice during an evening shift while
on tour with Quinones and, unbeknownst to him, tore his rotator cuff
when he attempted to avoid falling by grabbing a railing.*fn2
Quinones had remained in the vehicle and was not
with plaintiff when he fell. When plaintiff returned to the vehicle,
he informed Quinones that he had almost fallen on ice.
According to a Public Safety Call Off Form, on December 22 plaintiff called Officer Nyameshie to report that he would be out sick the following day due to a stomach virus. He did not report to work on December 23, although he did work from December 24 through 27. As of this point, plaintiff had not exceeded his accrued sick days.
On December 29, plaintiff called out sick for the following day,*fn3 advising Quinones that he would bring in a note from his doctor, Dr. Patel, at Morristown Memorial Hospital. While there, he told Patel about his earlier near fall at work and complained of continuing pain. Patel determined that plaintiff had injured his rotator cuff, and instructed him to report the injury to work, and go out on temporary disability.*fn4 Plaintiff left the hospital and went straight to work, where he related this information to Quinones and gave her the hospital paperwork. Quinones said she would forward the report to Thornton.
On December 30, plaintiff called out sick for January 1, 2008, and did not return to work thereafter. He was not able to see his own physician, Dr. Philip Woodham, until January 3, 2008, at which time Woodham put him out of work indefinitely due to his right rotator cuff injury.*fn5 In the meantime, plaintiff informed Gates of his medical condition.
On January 3, Gates returned plaintiff's call and acknowledged that he understood that plaintiff would not be returning to work for at least a week due to his shoulder injury. Gates asked him to fax a doctor's note confirming his absence to Denise Williams, Thornton's assistant. He also asked that the accident be documented by email or some other writing. Accordingly, plaintiff faxed his doctor's note to Williams on January 3 and sent Gates a written explanation of his accident.
Sometime before January 8, plaintiff was contacted by Dan Nelson, the adjuster for defendant's workers' compensation carrier, who instructed him to see the workers' compensation doctor, Dr. Clifford Schob. Before doing so, on January 10 plaintiff signed his December 31 pay voucher. He had completed it sometime in advance of December 31 with his anticipated schedule, indicating that he had worked eight hours on December23 and was off on December 28 and 29. He also indicated he was at Morristown Memorial Hospital on December 30 at 4:44 a.m. and was out of work on December 31 for a medical reason. These two latter entries were stricken and the word "sick" written next to both stricken entries with Thornton's initials next to each change. Thornton also struck the entry for December 23 and initialed the strikeout. It is not known when she made these changes, although plaintiff certified they were all made before he signed the voucher on January 10. Thornton signed the form on January 14, 2008. Written across the bottom were the words "did not work on the following days 12/23, 12/29, 12/30, 12/31."
On January 11, Dr. Schob gave plaintiff a corticosteroid injection in his right shoulder, and prescribed physical therapy and medication. Plaintiff was permitted to return to work on light duty on January 14 and was to return to Dr. Schob's office in seven to ten days. As instructed, plaintiff went to physical therapy at the Kessler Institute for Rehabilitation, the physical therapy provider approved by defendant's workers' compensation carrier. Throughout this time, plaintiff remained in constant communication with Nelson and his supervisors, and he followed all instructions with respect to his injury and treatment.
Based on Dr. Schob's recommendation, plaintiff contacted defendant sometime after January 11 to ascertain whether he could return to work on light duty. This may have occurred on a Monday in January, presumably January 14, when plaintiff went to Thornton's office to pick up his paycheck, and discussed his shoulder injury, his temporary disability, and his return to work on a light duty assignment with Thornton and Gates. From Thornton's demeanor, she seemed to be aware of his status and expressed no surprise or curiosity about it. Plaintiff believed she must have been aware of it from his communications with Quinones, Gates, and Nelson. At the very least, she became aware of his situation at this time. Later that day, plaintiff received a voice mail message on his mobile phone from a Sergeant Sims, who said that she had spoken with Priesmeyer and that he wanted him to call Gates the next day. Before plaintiff reached Gates, he received a call from a friend, Katia Leonidis, who told him she had heard he was about to be fired.
Plaintiff called Thornton on January 15 and she confirmed that he was being fired. He asked why, and she responded that he would receive a letter in the mail explaining the reasons for his termination; she refused to offer any explanation over the phone. No letter was forthcoming. On January 16, plaintiff received a telephone call from Nelson, who advised that he had placed a call to Thornton about a light duty position and was still awaiting a response. At ...