On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-4170-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2011
Before Judges Fuentes and Koblitz.
Plaintiffs Erik W. Martin and his wife, Lynn Debbe-Martin, appeal from a October 1, 2010 discovery order, the subsequent November 12, 2010 order granting summary judgment to defendants and the January 7, 2011 denial of plaintiffs' motion to reconsider the grant of summary judgment. Plaintiffs' complaint alleges wrongful termination and discrimination as a result of Martin's*fn1 Parkinson's disease and seeks remedies under New Jersey's Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42, as well as several other legal theories. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Martin was hired as an assistant manager for defendant Quick Chek Corporation in May 1999. Throughout Martin's employment, his supervising district leader was co-defendant Joan Ferry. Co-defendant Robert Grayczek was vice president of Quick Chek's human resources department. Martin was promoted to store manager upon Ferry's recommendation in the summer of 2000. He was diagnosed with Parkinson's disease that same year. After informing Ferry of his diagnosis, she advised him to keep his illness "hush, hush." Martin complied, and never mentioned his illness to Grayczek. Martin missed work in 2004 and 2006 due to two mini-strokes and took a two-week leave of absence in 2007 because of depression. He returned to work without repercussion after each instance.
In March 2008, Martin requested and received a demotion because his medical condition, combined with the lack of an assistant manager, precluded him from satisfying his work obligations.
On March 17, 2008, Martin injured his back at work.*fn2
He contacted his doctor, who instructed him to take a
darvocet that was previously prescribed to Martin's mother-in-law.
Martin visited the doctor the following day, at which time he was
prescribed percocet to manage his pain.
Martin was well aware of Quick Chek's drug abuse policy, which required anyone injured at work to submit to a drug test. Martin took the necessary drug test on March 19, 2008. A few days later, he was contacted by the testing facility. They asked him to disclose the medications he was taking. He told them about his prescriptions, including the percocet, and also informed them about the darvocet he took on the day of the injury. Because he tested positive for darvocet without a prescription, the testing company reported a failed drug test and Quick Chek terminated Martin.
Martin learned of his termination when he arrived at work on March 26, 2008. Five days later Martin sent a letter to Quick Chek, in which he questioned the basis for his termination. Attached to his letter was a note from his doctor indicating that he advised Martin to take darvocet on March 17 and prescribed percocet on March 18.
Grayczek testified at deposition that his decision to terminate Martin was based on the failed drug test. He further testified that in his thirteen years managing human resources for Quick Chek, he never made an exception to the company's zero-tolerance drug abuse policy. Grayczek also stated that he was not aware of Martin's Parkinson's disease until this litigation commenced.*fn3
Martin testified that he was aware of the internal procedures available to Quick Chek employees to formally complain of unfair treatment. However, at no time prior to his termination for the failed drug test did Martin lodge such a complaint.
Judge Rochelle Gizinski determined in an oral opinion that Martin did not produce "any evidence that Quick Chek applied the store policy [regarding drug testing] selectively or that his positive drug test would have been ignored if not for the Parkinson's disease." With regard to Martin's claim for failure to accommodate his disability, raised for the first time at his motion for reconsideration, Judge Gizinski determined that plaintiff "cannot now claim that defendant violated ...