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Weber v. Don Longo, Inc.

United States District Court, D. New Jersey

March 2, 2018

PETER WEBER, Plaintiff,
v.
DON LONGO, INC., DONALD P. LONGO, WILLIAM LONGO, JOHN DOE 1-5, MARY DOE 1-5, and/or DOE CORPORATION 1-5 Defendants.

          OPINION

          Hon. Kevin McNulty, United States District Judge.

         The plaintiff, Peter Weber, brings this action against defendants Don Longo, Inc. (the "Company"), Donald P. Longo ("Donald"), William Longo ("William") (collectively, "Longo") for disability discrimination, in violation of the Americans with Disabilities Act ("ADA"), as amended by die ADA Amendments Act of 2008 ("ADAAA"), 42 U.S.C. § 12101 et seq.; the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-1, et seq.; fraud; equitable fraud; and intentional infliction of emotional distress.

         Now before the Court is defendant Longo's motion for summary judgment. For the reasons discussed below, Longo's motion is granted.

         TABLE OF CONTENTS

         I. Background..........................................................................................3

         A. Procedural History.........................................................................3

         B. Relevant Facts...............................................................................4

         C. Disputed Facts..........................................................................11

         II. Legal Standard..................................................................................14

         III. Discussion........................................................................................16

         A. Counts I and II- ADA and NJLAD Claims- Discriminatory Discharge..................................................................................16

         1. ADA.................................................................................17

         i. Disability..............................................................18

         a. "Actual disability" prong...............................19

         b. "Regarded as disabled" prong........................24

         2. NJLAD.............................................................................26

         B. Counts III and IV- Fraud and Equitable Fraud..............................29

         C. Count V- Intentional Infliction of Emotional Distress....................32

         IV. Conclusion.......................................................................................34

         I. Background[1]

A. Procedural History

         On April 6, 2015, Weber brought suit in this Court against Don Longo, Inc., Donald P. Longo, William Longo, John Doe 1-5, Mary Doe 1-5, and/or Doe Corporation 1-5. (Compl.) The Complaint asserts five counts. Count I alleges a violation of the ADA, Count II alleges a violation of the NJLAD, Count III alleges fraud, Count IV alleges equitable fraud, and Count V alleges intentional infliction of emotional distress.

         On April 30, 2015, Longo filed an Answer. (ECF no. 3). On June 30, 2017, Longo filed a motion for summary judgment. (ECF no. 37). On July 31, 2017, Weber filed a memorandum in opposition to Longo's motion for summary judgment. (ECF no. 38). On August 7, 2017, Longo filed a reply brief. (ECF no. 39).[2]

         B. Relevant Facts[3]

         On July 7, 2014, Weber began employment as a machine operator/ laborer at Don Longo, Inc., referred to herein as the "Company, "[4] a family-run business located in Chester, New Jersey. (DSMF ¶¶ 2, 5) (citing ECF no. 37-1, Exh. B at 7:22 to:23; Compl. ¶¶ 6, 13). Donald Longo is the president of the Company and is semi-retired. (Id. at ¶ 3)(citing ECF no. 37-1, Exh. C at 5:14 to:19). William Longo, Donald Longo's son, does not have a formal title at the Company but works in a role similar to that of project manager and assumes Donald's role when Donald is inactive.[5] (Id. at ¶ 4)(citing ECF no. 37-1, Exh. B at 7:20 to:23). William runs the Company with the help of his sisters, Donna Reynolds and Jeralyn Weiss. (Id.)

         The Company has a policy of providing new employees with a performance review about two months after their date of hire.[6] (Id. at ¶ 7)(citing ECF no. 37-1, Exh. B at 105:21 to 106:7). Based on the review, a decision is made as to whether the employee's service will be continued. (Id.) As per the policy, the Company's review of Weber would have been held on or about September 7, 2014. (Id.)

         During Weber's employment at the Company, William recalled speaking to Weber about his work performance. (Id. at ¶ 8)(citing ECF no. 37-1, Exh. B at 106:11 to:16). In particular, William testified that "[t]here were comments made as needed as observed. If there was a procedure, fittings being assembled that there may have been a more efficient way or something easier to do. . . [he] remember[ed] speaking with [Weber) a few different times. Not in a threatening manner, just instruction manner." (ECF no. 37-1, Exh. B at 106:11 to:16).

         On August 19, 2014, Weber installed various plumbing lines and fittings for a project at an automobile service facility. (DSMF ¶ 15)(citing ECF no. 37-1, Exh. D at 61:24 to 62:4). He acknowledged that the lines and fittings had issues, including leaks and fittings that were not properly tightened. (ECF no. 37-1, Exh. D at 61:24 to 62:4).

         The next day, August 20, 2014, William instructed Weber to create a combination of a splash guard and a drip pan, designed to "contain any spills or splashing" during the filling of oil tanks. (DSMF ¶ 16)(citing ECF no. 37-1, Exh. B at 54:17 to:24). That morning, William and Weber drove to the work site, where they spent three hours "taking physical measurements of the equipment and discussing multiple options for construction of the backsplash/drip tray." (Id.)(citing ECF no. 37-1, Exh. B at 55:7 to:17). They discussed that "steel would have to be cut" and "would have to be possibly sent out to be bent and/or [they] would weld it in house." (ECF no. 37-1, Exh. B at 59:8 to:10). However, they did not discuss the specific tools that Weber had to use. (ECF no. 37-1, Exh. B at 59:7). Afterward, they visited another site owned by the same customer so that William could show Weber a similar product that the Company had fabricated years earlier. (Id.)

         According to William, they then drove back to the Company shop, where William gathered some material for Weber to work with. (ECF no. 37-1, Exh. B at 55:18 to:20). William testified that he and Weber discussed that if that steel was not the proper size or shape, Weber had the approval to contact a supply house and purchase the proper steel. (Id. at 59:11 to:14). William also provided Weber with the phone number and the contact name of the supply house. (Id. at 55:21 to:22).

         William returned to his office while Weber gathered his materials. (Id. at 56:4 to:6). Soon thereafter, William returned to the on-site work area because he heard the sound of a grinder being used which he thought was "quite odd" given the material that Weber was working with. (Id. at 56:11 to: 14). Arriving at Weber's work space, he saw Weber using a grinder. (Id. at 56:11 to: 12). William asked Weber to stop using the grinder, and also asked where he had gotten it. (Id.) At his deposition, William explained that he asked Weber to stop using the grinder because it was a broken grinder that had no guard on it and was not the right tool for the assignment. (Id. at 56:15 to:25). At that point, William provided Weber with blades for a reciprocal saw, though he did not give Weber the reciprocal saw itself. (Id. at 57:3 to:7). William testified that reciprocal saws could be found in other trucks, or throughout the shop. (Id.)

         William then left the shop, believing that he had "left [Weber] to keep working with the saw and not the grinder." (Id. at 57:3 to:8). However, later that day, upon returning from his off-site duties, William was informed that Weber had lacerated his left index finger on the grinder. (Id. at 57:12 to: 15). According to Weber, he lacerated his finger because the wheel on the grinder exploded. (DSMF ¶ 19)(citing ECF no. 37-1, Exh. D at 71:9 to:14). Donald took Weber to a medical clinic where Weber received stitches.[7] (Id. at t 20)(citing ECF no. 37-1, Exh. C at 21:2 to:5). After the visit to the clinic, Donald told Weber to rest his hand and take two days off with pay because he did not want Weber to reinjure his finger. (ECF no. 37-1, Exh. C at 23:4 to:7, 25:8 to:9).

         Notwithstanding Donald's instruction, Weber returned to work the next day, August 21, 2014. (DSMF ¶ 21). Donald testified that because Weber "insisted on working, " he placed Weber on "light duty." (ECF no. 37-1, Exh. C at 23:12 to:18). Although Weber was on "light duty, " he continued to work on the same project that he was working on when he was injured- i.e., the creation of a combination of a splash guard and a drip pan. (DSMF U 22) (citing ECF no. 37-1, Exh. C at 28:8 to:20). Donald testified that Weber "insisted on going back to the same thing, " and was "adamant about going back and finishing or attempting to finish." (ECF no. 37-1, Exh. C at 28:8 to: 11).

         At some point during Weber's employment, [8] William instructed Weber to 1) install six pumps onto brackets which were already on the wall, and 2) do the preliminary piping. (DSMF at ¶ 9) (citing ECF no. 37-1, Exh. B at 41:14 to 42:21). Later that day, after Weber had begun installing two pumps, Weber informed William that he did not have enough fittings. (Id.) According to William, he "reminded [Weber] from [their] previous conversation of earlier that morning that the standard plumbing fittings that he needed were available within a mile of the job, north and south of the job." (ECF no. 37-1, Exh. B at 42:4 to:8). William testified that Weber responded that he "would take care of picking up whatever fixings he needed." (Id. at 42:10 to:11). However, "[t]he fittings did not arrive by [Weber]'s doing, so [William] picked up the fittings, " and returned to the work site. (Id. at 42:13 to: 15).

         According to William, Weber finished two more pumps the next day, and the last two pumps were completed on the third day in two hours. (Id. at 42:18 to: 19, 45:23 to:24). Although William did not know if Weber was asked to do other tasks, he maintained that Weber's assignment "should have been one day's worth of work" rather than three. (Id. at 42:20 to:23).

         On August 25 or 29, 2014, Donald asked Weber to build a drip pan. (ECF no. 37-1, Exh. D at 81:4 to: 12). Weber testified that he "built [the drip pan] as to spec, as to what he wanted." (Id. at 81:9 to:10). However, Weber admitted that he made an "alteration" to the drip pan by "add[ing] one support in one corner." (Id. at 81:10 to:12). Donald testified that: "[Weber] decided to do something differently than what [Donald] instructed, to put the drip pan in place. And what [Weber] did created a bigger problem. . . [i]t deflected the metal, distorted it[.]" (ECF no. 37-1, Exh. C at 17:15 to:20). Don approached Weber and told him that the pan was not going to work, and according to Don, "it certainly did not." (Id. at 17:18 to:19).

         On August 27, 2014, according to William, Weber was instructed to go "near the back opening, the door way. . . to install or hook up two exhaust fans, mix the two porta-poxy paint, and apply it to the [drip pan]." (ECF no. 37-1, Exh. B at 50:12 to:16). Specifically, Weber "was supposed to paint, leave the fans going, [and] leave the [drip pan] outside. . . under the roof of the barn in the opening and leave the fans blowing outward." (DSMF ¶ 25)(citing ECF no. 37-1, Exh. B at 51:3 to:6). William testified that when he "arrived back at the shop later on that day, the apparatus was sitting in the center of the shop, the rear door was closed and the shop had inadvertently filled up with fumes from the paint outgassing." (ECF no. 37-1, Exh. B at 51:6 to:12).

         In early September, Weber was asked to deliver some lifts to a project site. (DSMF J 28). Weber recalled that William asked him why it took him so long to arrive at the site. (ECF no. 37-1, Exh. D at 78-12).

         On September 5, 2014, Weber had his stitches removed at the medical clinic and then returned to work. (DSMF ¶ 30). Later that afternoon, William spoke to Weber and terminated his employment. (Id. at ¶ 31). William informed Weber that he was terminated for three reasons: 1) he took excessive time to accomplish his tasks, 2) he disregarded direct instructions, and 3) his coworkers had some level of discomfort working with him. (Id. at ¶ 32)(citing ECF no. 37-1, Exh. B at 109:13 to:19). After being terminated, Weber "exhibited agitated behavior" and "was overheard talking to himself saying he might as well shoot himself, his life was over, his wife was going to divorce him and they were going to lose their house." [Id. at ¶ 31)(citing ECF no. 37-1, Exh. C at 34:1 to: 13). He also took a claw hammer and destroyed his hard hat while in the presence of other employees. (Id. at ¶ 33)(citing ECF no. 37-1, Exh. D at 83:1 to:9). At some point after being fired, Weber called William and asked him why he was fired. (ECF no. 38-3, Exh. A at 84:3 to:24).

         Four days after the firing, on September 9, 2014, Weber and his wife, Deborah, arrived at the office of the Company (ECF no. 37-1, Exh. D at 83:10 to: 17). Donald testified that he was working in the yard when Weber and his wife arrived. (ECF no. 37-1 at 36:13 to:16). He recalled that they wanted to know why Weber was terminated. (Id. at 36:20 to:21). Donald contacted William and once William arrived, a meeting was held with William, Donald, Weber, and Weber's wife. (Id. at 36:21 to 37:15).

         As a result of the meeting, William and Donald agreed to have Weber return on a trial basis. (DSMF ¶ 34)(citing ECF no. 37-1, Exh. B at 118:2 to 119:3). William explained that he and his father "were torn between the fact that [he] did not want [Weber] back in [their] employment, but [he] didn't want to ruin somebody's life at the same time." (ECF no. 37-1, Exh. B at 118:4 to:7). He testified that he informed Weber that he would be working a minimum of two weeks and maximum of a month under William or Donald's direct supervision before a decision would be made as to whether he could stay on as an employee. (ECF no. 37-1, Exh. B at 118:9 to 119:3).

         After the meeting was over and the Webers had left, William's sisters explained to William that they were concerned about working with Weber. (Id. at 119:10 to:18). Moreover, according to William, once some of the other employees learned that Weber would be returning to work, they either asked for a pay raise to work with Weber or threatened to quit if Weber was rehired. (Id. at 119:18 to:21). Don also testified that he asked employees to complete an anonymous survey[9] as to whether they were willing to work with Weber. (ECF no. 38-4, Exh. B at 43:15 to:20). He stated that he did not have any favorable responses. (Id. at 44: 5). William then decided not to re-hire Weber and contacted an attorney for advice. (Id. at 120:7 to:8).

         According to Weber, he spoke to William about three times during the week following the meeting on the subject of his return date. (ECF no. 38-3, Exh. A at 93:20 to 94:21). He recalled that William put him off with excuses, including a statement that one of the job assignments had been postponed. (Id. at 94:18 to:21).

         Weber subsequently received a letter, dated September 10, 2014, from Anthony J. Sposaro, Esq., an attorney representing the Company (ECF no. 37- 1, Exh. F). The letter states that Weber's employment with the Company was terminated effective immediately. (Id.) It also expresses concerns about Weber's post-firing conduct:

Under normal circumstances Don Longo, Inc. would have communicated directly with you. The circumstances, however, are far from normal. The conduct that you exhibited at my client's facility last Friday, together with text messages you sent to [William] Longo, have caused genuine concern. Smashing and destroying a construction helmet is not 'normal' behavior. Taken together your actions and communications are not only disturbing but threatening.

(Id.)

         Enclosed with the letter was a severance check for $1, 319.97, which represented two weeks' pay. (DSMF ¶ 38)(citing id.) William testified that he paid Weber for two weeks because that corresponded to the the minimum amount of time that he had promised to reemploy Weber on a trial basis. (ECF no. 37-1, Exh. B at 134:1 to:12).

         Also on September 10, 2015, Donna contacted the Chester Township Police Department and filed an Incident Report related to events that took place on September 5 and 9, 2014. (ECF no. 37-1, Exh. G). On September 12, 2014, the Chester Township Police Department filed an Investigation Report based on a harassment complaint by Donald and Donna. (ECF no. 37-1, Exh. H).[10]

         Six days later, on September 18, 2014, Attorney Sposaro sent Weber's wife a letter in response to an e-mail she had sent him on September 16, 2014. (ECF no. 37-1, Exh. I). Sposaro's letter states, in part: "Your husband's termination had nothing to do whatsoever with any job related injury." Id. It adds the following about the hard hat incident:

Without belaboring the point, your husband's conduct was indeed threatening and disturbing. The smashing of the hard hat was a perfect example. The issue here is not who owned the hard hat, but rather the act of smashing it. Emotional outburst such as these are telling and troubling.

(Id.)

         C. Disputed Facts

         Although many details are in dispute between Weber and Longo, the disputes that are essential can be distilled to a few core issues. Whether these are genuine, material issues that stand in the way of summary judgment will be discussed infra.

         1. Pre-September 5, 2014 Termination

         i. August ...


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