On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1039-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2011
Before Judges Cuff, Waugh, and St. John.
Plaintiff Jason Zangara appeals the order of the Law Division dismissing his complaint alleging that defendant Somerset Medical Center (SMC) discriminated against him in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Zangara worked at SMC from June 2003 until March 2008, when he was terminated. According to Zangara, he was terminated because of a disability, specifically Attention Deficit Hyperactivity Disorder (ADHD). According to SMC, he was terminated because of complaints from SMC staff that his behavior was inappropriate and unprofessional. We affirm.
We discern the following facts and procedural history from the record on appeal.
Zangara began volunteering at SMC, a non-profit hospital in Somerville, in 1999 at the age of thirteen. At that time, according to Zangara, he informed SMC employees with whom he worked that he had been diagnosed with ADHD.
Zangara continued volunteering at SMC until June 2003, when he applied for employment and was hired as an aide in the transport department, working ten hours a week. He understood that he was being hired as an at-will employee and could be discharged by SMC at any time. As a transport aide, Zangara was responsible for taking patients from the emergency room to other floors for testing or treatment, and assisting with discharging patients. His performance as a transport aide was evaluated on June 13, 2004. He received a score of 86.25, which indicated that he "Exceeds Job Performance Standards."
Zangara graduated from high school in June 2004. In July, he successfully applied for a surgical aide position in SMC's operating room (OR). He worked approximately twenty-four hours a week. His responsibilities included preparing the materials and instruments for doctors, moving patients before and after surgery, and assisting with cleaning.
According to Zangara, he "got along with all" members of the OR staff, and "got along pretty much well" with the OR nurses. However, he recalled that he and Colleen MacIntosh, an OR group leader, "didn't mix well" because they "had two different personalities." Nevertheless, he believed that their differences did not "prevent [them] from working."
According to Lynda Orofino, associate director of the recovery room, Zangara complained to her on "numerous occasions that Colleen MacIntosh was mean to him" and about "minor disputes" he had with MacIntosh on a "frequent basis." He also complained to Kristin Petersen, his supervisor, on multiple occasions that MacIntosh "spoke to him too roughly." According to Zangara, he "probably" complained to others that he was having difficulty working with MacIntosh.
Petersen attempted to resolve the conflict by meeting with Zangara and MacIntosh. According to Petersen, Zangara continued to complain to her, Orofino, and others "about every minor dispute that he had with Ms. MacIntosh." Petersen contemplated "pursuing disciplinary action against [Zangara] because of his inability to cooperate" with MacIntosh, but decided not to do so because she attributed his inability to cooperate with MacIntosh to "his limited experience and the high stress environment of the [OR]."
In April 2005, Zangara requested a transfer to the post-anesthesia care unit (PACU) of the OR, as a patient care technician. The position was full-time. Orofino, who managed PACU, interviewed Zangara for the technician position later that month, and subsequently approved the transfer. According to Petersen, she and Orofino granted Zangara's transfer request "[i]n an effort to give [him] a fresh start."
Zangara's transfer was effective at the end of May 2005. Zangara's duties included transporting the patients between floors and assisting staff, including PACU nurses, with patient care. He also answered phones, entered orders into the computer, and stocked supplies in the unit.
In June 2005, Orofino evaluated Zangara's performance. She gave him a score of 82.50, which fell within the higher end of the range of "Accomplishes Job Performance Standards." In the evaluation, Orofino wrote that Zangara "works well with all PACU staff" and "[a]ssists OR staff as needed." She also described his as "an asset to the PACU staff" who "assists the staff without being asked."
According to Zangara, he was "friendly" with some of the PACU nurses prior to his transfer and was encouraged by them to apply for the position. Rhoda Gestosani was one of those nurses. However, problems arose following the transfer.
At his deposition, Zangara conceded that he had been romantically interested in Gestosani and another nurse, and that he had communicated his feelings to other PACU nurses. According to Zangara, once Gestosani discovered that he had such feelings for her, her demeanor toward him changed and she "started being difficult."
According to Gestosani, when Zangara began working at the PACU it was "nice" and an "improvement" for the PACU nurses because they did not previously have a technician. However, working with Zangara eventually became "difficult" because he "ma[de] issues . . . of everything that everyone else did," his job performance "deteriorated," and he would sometimes not perform duties when asked.
Gestosani related that, on the night before Thanksgiving in November 2005, as she turned around to say good night to Zangara, he was standing behind her with his arms outstretched to embrace her. He said "Good-bye, Honey." Gestosani "felt creeped out" and "uncomfortable." She put her hand out and said: "[W]hy are you calling me honey? You are not my honey. You are way too young to call me honey, or people that call me honey are old people or somebody that thinks he is my boyfriend or my husband." However, Gestosani did not file a complaint with the human resources department (HR) or complain to Orofino regarding the incident.
Zangara recalled that when he, Gestosani, and another nurse were leaving SMC on the night before Thanksgiving in 2005, he put his arm around Gestosani, gave her a hug and a kiss on the cheek, and said "Happy Thanksgiving" before departing. He did not recall calling Gestosani "Honey," but admitted to kissing her without her consent. According to Zangara, Gestosani did not protest at that time. However, he noted a change in Gestosani's demeanor. He eventually realized that Gestosani acted differently because of the Thanksgiving incident.
According to Zangara, Gestosani would ignore or yell at him. He testified that "her attitude changed toward [him] when she thought [he] wanted a personal relationship with her."
According to Orofino, Zangara told her that "he attempted to hug and kiss" Gestosani in November 2005. He also complained to her that, as a result of the Thanksgiving incident, Gestosani "was no longer friendly with him and he felt that she was mean to him."
On March 7, 2006, Orofino completed a performance review for Zangara for the period January 2005 to February 2006. She gave him a score of 2.93, on a scale of 0.0 to 4.0, which indicated "Meets Expectations." Orofino characterized Zangara as "an asset to PACU" who "follows directions well."
In her certification, Orofino characterized Zangara as having developed "an infatuation" with Gestosani. Orofino testified that, when Gestosani announced she was pregnant in June 2006, Zangara "became extremely upset" and she "sent him home for the day with a referral to the Employee Assistance Program [EAP]." Orofino testified that Zangara's "job performance began to decline" at that time. At his deposition, Zangara agreed that he had become upset, took time off, and sought help from EAP when Gestosani announced her pregnancy, but maintained he was upset to learn of the pregnancy because he "felt bad" for Gestosani due to her alleged marital problems.
On July 28, 2006, Orofino and Gestosani met with Zangara. According to Zangara, the meeting was held because "[he] realized there was an issue and [he] wanted to fix it as soon as possible." He believed that "[Gestosani] was being a jerk," but apologized to her at the meeting "to get her off [his] back and stop treating [him] like garbage." Zangara testified that his relationship with Gestosani improved "[a] little bit" after the meeting.
Although Zangara testified that no one had told him that Gestosani had accused him of ignoring her instructions, he conceded that Gestosani "probably" told him "at some point" that her anger toward him was based on his failure to adequately perform his job. According to Zangara, she criticized him frequently for taking too long to fill requests and to enter her orders into the computer.
Zangara was aware that some PACU nurses had begun to complain about his job performance in 2006. In fall 2006, he complained to Petersen and Orofino about "nurses in the PACU who he felt were mean to him." In early October 2006, he met with Orofino and Petersen. At the meeting, Zangara raised the complaints about his job performance, which he maintained came from Gestosani. According to Zangara, he asked Orofino whether "[his] job was in jeopardy . . . based on rumors that [he] had heard," but he was told "not to worry about anything." Zangara maintains he was "not reprimanded or warned, just asked to improve" at the meeting.
Zangara also testified that Petersen and Orofino "threatened" him by telling him that, if he complained about Gestosani's behavior, she could file a complaint against him for sexual harassment. He added that Petersen also told him to "give [Gestosani] some slack because she's pregnant" and felt "uncomfortable" around him.
In October 2006, Zangara met with Maureen Schneider, the senior vice president in charge of nursing at SMC, to complain about Gestosani, Petersen, and Orofino. He complained about Petersen and Orofino's warning not to report Gestosani's behavior because she could file a complaint for sexual harassment. Schneider referred him to Deborah Carlino, the HR director.
On October 24, 2006, Zangara and his mother met with Carlino. At the time, Carlino was not aware of any complaints regarding Zangara's job performance. According to Carlino, Zangara discussed issues he had with Gestosani, but did not bring up his meeting with Orofino and Petersen or their reference to a potential sexual harassment complaint. Carlino stated that Zangara told her that he previously had a "close relationship" with Gestosani and that he would hug her. Zangara brought up Gestosani's age, her marital status, and the ...