 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Soules v. Mount Holiness Memorial Park11/6/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 23, 2002
This is plaintiff's appeal from a grant of summary judgment in favor of the defendants. Plaintiff, an employee of defendant, Mt. Holiness Memorial Park Organization (Park), developed cancer requiring the removal of a kidney, "five inches around it, the adrenals, the lymphs and one rib." He was absent from work for over eight months. Before plaintiff was cleared to return to work, Park hired another employee to replace him. Plaintiff claims that he was told his position would remain open until he recovered. Park asserted that the position was held open as long as possible, and when plaintiff failed to return, it had no other choice but to hire a new employee. This defense, of course, raises an issue of whether Park reasonably accommodated plaintiff's condition. Viscik v. Fowler Equipment Co., Inc., 173 N.J. 1, 19-20 (2002) (reasonable accommodation is an issue in a handicap discrimination case "in which an employer, rather than defending on the grounds that the employee was terminated for legitimate, non-discriminatory reasons, proffers the employee's inability to perform the job as a defense.").
However, the motion judge granted Park summary judgment in favor of the defendant based upon his conclusion that plaintiff had failed to prove the first prong of his prima facie burden, i.e., that he was "handicapped" within the meaning of the Law Against Discrimination (LAD). He based this conclusion upon his finding that plaintiff's handicap was temporary, focusing upon the eight month recuperative period. We reverse.
The facts viewed most favorably for plaintiff, as we must, Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 535-36 (1995), reveal the following. Prior to his replacement in October 1998, plaintiff had worked for Park since he was twelve or thirteen years old, some thirty-three years. It is undisputed that throughout this time, during which he first worked as a general laborer and then a machine operator, plaintiff was considered as satisfactorily performing his job .
On February 14, 1998, plaintiff was diagnosed with kidney cancer. Several days later, he underwent an operation during which the kidney, adrenal glands, lymph nodes and one rib were removed. Though disputed by Park, plaintiff asserts that while he was recuperating from his cancer surgery he had several conversations with Park's then president who was also in charge of the day-to-day operations of the cemetery. During these conversations, he was told not to worry about his job and that as soon as he was able to come back to work, his job would be waiting for him.
Plaintiff remained on the payroll of Park for some ten or eleven weeks from February 15, 1998, and received a full salary during that time. In April 1998, he filed a claim for temporary disability with the New Jersey Department of Labor claiming that he would be disabled from February 15, 1998, until August 24, 1998, later revised to October 26, 1998. He received disability payments until October 26, 1998, when his doctor authorized his return to work. However, unbeknownst to plaintiff, his position was filled with a full-time employee on October 13, 1998.
According to plaintiff and his son, when plaintiff called Park's president to advise her that he could return to work, she told him:
We have a problem. My brother fired you three months ago due to the extra expenses in health benefits and because he believes you are no longer able to perform your duties due to your cancer.
At the very least, it is clear from the deposition testimony of Park's two principals that the m
Page 1 2 3 4 New Jersey Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|