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Shane S. Gandy, Honorable Joseph E. Irenas v. Pepsi-Cola & National Brand Beverages

September 4, 2012

SHANE S. GANDY, HONORABLE JOSEPH E. IRENAS PLAINTIFF,
v.
PEPSI-COLA & NATIONAL BRAND BEVERAGES, LTD., AND JOHN DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Irenas, Senior District Judge:

OPINION

This employment discrimination suit comes before the Court on Plaintiff's Motion to Reopen the Case and Amend his Original Complaint. Defendant opposes the motion. For the reasons stated herein, the Motion to Reopen will be granted and the Motion to Amend will be granted in part and denied in part.

I.

Defendant Pepsi-Cola & National Brand Beverages, Ltd. ("Pepsi") hired Plaintiff Gandy for a "merchandiser" position on April 10, 1995. (Compl. ¶ 1; Proposed Amend. Compl. ¶ 8) A few months later, in June, 1995, Gandy was involved in an automobile accident in which he sustained a "Traumatic Brain Injury" ("TBI"). (Compl. ¶ 2; Proposed Amend. Compl. ¶ 9) After recuperating from his injury for approximately one year, Gandy returned to his position on June 6, 1996. (Compl. ¶ 3*fn1 ; Proposed Amend. Compl. ¶10)

"On September 1, 2000, [Gandy] was terminated from his merchandiser job based on performance issues." (Compl. ¶ 3; Proposed Amend. Compl. ¶ 10) After pursuing union grievance procedures and participating in arbitration, Gandy was reinstated on July 2, 2001. (Compl. ¶ 4; Proposed Amend. Compl. ¶ 11)

After his reinstatement-- approximately five and a half years after his accident-- Gandy asserts that he "consistently requested" that Pepsi provide him a "'cooling off room'" where he could "'chill out' in the event of the ever-present taunting by fellow employees." (Proposed Amend. Compl. ¶ 12)*fn2 Pepsi allegedly "ignored" or denied the requests. (Proposed Amend. Compl. ¶ 12)

On May 16, 2008, Gandy was "attacked by a co-worker" resulting in "injuries to his knee and back." (Compl. ¶ 6; Proposed Amend. Compl. ¶ 13) Pepsi terminated Gandy that same day. (Compl. ¶ 6; Proposed Amend. Compl. ¶ 13)

On October 30, 2008, Gandy filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") alleging that Pepsi unlawfully discriminated against him on the basis of his disability in violation of Title VII of the Civil Rights Act ("Title VII"), the Americans With Disabilities Act ("ADA"), and the New Jersey Law Against Discrimination ("NJLAD"). (Proposed Amend Compl. § 1) The EEOC referred the claims to the New Jersey Division of Civil Rights ("DCR") for an initial review. (Id.) On October 15, 2009, the DCR issued a finding of "no probable cause." (Proposed Amend Compl. § 2)

On January 11, 2010, the EEOC notified Gandy that it had adopted the DCR's findings and that Gandy had 90 days to file suit. (Compl. ¶ 10, Ex. A.)

On April 15, 2010, Gandy filed his initial Complaint against Pepsi in this Court. The Complaint asserted claims of unlawful termination and failure to accommodate in violation of NJLAD.*fn3 On September 29, 2010, this Court dismissed Plaintiff's Complaint without prejudice for failure to prosecute. See Fed. R. Civ. P. 4(m).

Plaintiff's original counsel in this case was disbarred in June, 2011. (Certification of Roger Paul Frye, Esq. ¶ 1)*fn4 Gandy retained his current counsel in December, 2011 (Id.), and filed the instant Motion to Reopen the Case and Amend the Complaint in March, 2012.

While the Proposed Amended Complaint is not a model of clarity, it appears to assert claims for wrongful termination and failure to accommodate in violation of both the NJLAD and the ADA.*fn5

II.

A. Motion to Reopen the Case

Fed. R. Civ. P. 60(b) provides, "[o]n motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable ...


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