ROBERT BENNING VS. MIDDLESEX REGIONAL EDUCATIONAL SERVICES COMMISSION (L-5832-13, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3924-16T3
ROBERT BENNING,
Plaintiff-Appellant,
v.
MIDDLESEX REGIONAL
EDUCATIONAL SERVICES
COMMISSION,
Defendant-Respondent.
___________________________________
Argued June 7, 2018 – Decided June 25, 2018
Before Judges Haas, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
5832-13.
Thomas A. McKinney argued the cause for
appellant (Castronovo & McKinney, LLC,
attorneys; Thomas A. McKinney and Megan Frese
Porio, of counsel and on the briefs).
Eric L. Harrison argued the cause for
respondent (Methfessel & Werbel, attorneys;
Eric L. Harrison, of counsel; Raina M. Pitts,
on the brief).
PER CURIAM
In September 2013, plaintiff Robert Benning filed a one-count
complaint against defendant Middlesex Regional Educational
Services Commission. He claimed defendant terminated his
employment in violation of the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49, because he had a disability. The trial
court subsequently granted defendant's motion for summary
judgment, and dismissed plaintiff's complaint. Plaintiff
appealed, and we reversed and remanded for a trial on the genuine
issues of material fact that permeated the case. Benning v.
Middlesex Reg'l Educ. Servs. Comm'n, No. A-0377-15 (App. Div. Nov.
23, 2016).
On remand, a different trial judge conducted a six-day jury
trial, and the jury returned a unanimous verdict in favor of
defendant. On April 7, 2017, the judge entered a conforming order,
and dismissed plaintiff's complaint with prejudice. This appeal
followed.
On appeal, plaintiff contends that the judge erred by
permitting defendant to present testimony that one of plaintiff's
supervisors had previously worked without incident with a
similarly, but not identically, situated individual who was
disabled and, like plaintiff, had worked with a job coach to assist
him in performing his assigned tasks. Plaintiff also argues for
the first time on appeal that the judge committed plain error by
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failing to strike some comments defendant's attorney made in his
opening and closing statements to the jury. Having considered
these contentions in light of the record and applicable principles
of law, we affirm.
By way of background, the LAD prohibits discriminatory
employment practices. Viscik v. Fowler Equip. Co., Inc., 173 N.J.
1, 13 (2002). To prove employment discrimination under the LAD,
New Jersey courts have adopted the burden-shifting analysis
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, (1973); Viscik, 173 N.J. at 13-14. Under that analysis, the
plaintiff must first present sufficient evidence to establish a
prima facie case of unlawful discrimination. Dixon v. Rutgers,
110 N.J. 432, 442 (1988) (citing McDonnell Douglas, 411 U.S. at
807; Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 82-83
(1978)). The defendant then has the burden to present evidence
establishing a legitimate, non-discriminatory reason for its
employment action. Dixon, 110 N.J. at 442 (citing Peper, 77 N.J.
at 83). If the defendant presents such evidence, the burden shifts
back to the plaintiff to prove that the defendant's proffered
reasons are merely a pretext for unlawful discrimination. Ibid.(citing Peper, 77 N.J. at 83).
"[I]t is not the purpose of the LAD 'to prevent the
termination or change of the employment of any person who in the
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opinion of the employer, reasonably arrived at, is unable to
perform adequately the duties of employment[.]'" Jason v. Showboat
Hotel & Casino, 329 N.J. Super. 295, 302-03 (App. Div. 2000)
(quoting N.J.S.A. 10:5-2.1). Rather, "[i]n order to sustain a
claim of unlawful discrimination under [the LAD], there must be
proof of an intent to discriminate for an unlawful purpose."
Kearny Generating Sys., Div. of Pub. Serv. v. Roper, 184 N.J.
Super. 253, 261 (App. Div. 1982); see also Jones v. Coll. of Med.
& Dentistry, 155 N.J. Super. 232, 236 (App. Div. 1977)
("Discrimination involves the making of choices. The statute does
not proscribe all discrimination, but only that which is bottomed
upon specifically enumerated partialities and prejudices.").
Thus, discriminatory motive or intent "is a crucial element in a
discrimination case[.]" Goodman v. London Metals Exch., Inc., 86
N.J. 19, 30 (1981).
The parties are fully familiar with the testimony and
documentary evidence each presented at trial in an attempt to
satisfy their respective burdens under the McDonnell-Douglas test.
Therefore, a brief summary will suffice here.
Plaintiff suffers from a cognitive impairment resulting from
an episode of cardiac arrest he suffered over thirty years ago.
In September 2006, defendant hired plaintiff on a year-to-year
contract basis as a teacher's aide, but he soon began working in
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defendant's schools as a full-time custodian. These schools serve
students with disabilities, who often are unable to properly care
for themselves. Therefore, the custodian's job is particularly
important because the students need a clean, safe environment
during the school day.
Between 2006 and 2009, defendant gave plaintiff "good" and
"satisfactory" ratings on his periodic job performance
evaluations. In November 2010, however, defendant received an
evaluation that stated he needed improvement in six areas, which
represented a dramatic falloff in his performance from previous
evaluations. Plaintiff alleged that the poor evaluation was issued
because he told his supervisor, who had completed all of the prior
evaluations, that he was disabled.
Defendant and the supervisor disputed this claim. In addition
to carefully documenting their reasons for the November 2010
evaluation and the many more that followed, defendant asserted
that its mission was to serve individuals with disabilities, not
to discriminate against them. The supervisor also testified that
he worked with and accommodated another full-time custodian, B.E.,1
who "had some heart issues" and needed extra assistance to complete
his work. Over plaintiff's objection, defendant also presented
1
We use initials to protect the privacy of defendant's employees
because they are not parties to this appeal.
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testimony that E.M., a former student with Downs Syndrome, had
worked part-time assisting the custodians with the help of a job
coach for a number of years following his graduation without
incident or complaint prior to plaintiff becoming a custodian in
defendant's schools.
In line with this prior history, defendant held a series of
meetings over the next three years with plaintiff to develop plans
and accommodations that would enable him to continue to work as a
custodian. On his own, plaintiff also arranged with the Division
of Vocational Rehabilitation for job coaches to work with him to
improve his performance.
The job coaches alleged that with their assistance, plaintiff
was doing a good job between 2011 and 2013. One of plaintiff's
co-workers, D.K., made a similar claim.2 However, defendant's
supervisors continued to evaluate his performance as poor. In
2011, defendant's primary supervisor recommended that defendant
terminate plaintiff's employment. However, defendant extended
contracts to plaintiff for the 2011-2012 and 2012-2013 school
years even though he continued to receive sub-par evaluations
during this period.
2
Defendant alleged that D.K. was a disgruntled employee, who had
been dismissed from employment because of his own poor performance.
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In 2012, defendant transferred plaintiff to another school,
where a new job coach was assigned to help him. Plaintiff alleged
that defendant set him up to fail in this new post because he was
now responsible for handling a shift by himself and he was unable
to do so. He also alleged that his primary supervisor and the
school principal spent most of their time trying to document his
failings, rather than helping him.
At the conclusion of the school year in 2013, defendant did
not rehire plaintiff, and he filed his disability discrimination
complaint against defendant later that year. On these facts, the
jury found that plaintiff's claim lacked merit, and the trial
judge dismissed plaintiff's complaint with prejudice.
In Point I of his brief, plaintiff argues that the trial
judge erred by denying his pre-trial request to bar defendant from
presenting any testimony regarding its interactions with E.M. We
disagree.
Our standard of review of a trial court's decisions on
evidentiary questions is well settled. "When a trial court admits
or excludes evidence, its determination is 'entitled to deference
absent a showing of an abuse of discretion, i.e., [that] there has
been a clear error of judgment.'" Griffin v. City of E. Orange,
225 N.J. 400, 413 (2016) (alteration in original) (quoting State
v. Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an
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evidentiary ruling only if it 'was so wide [of] the mark that a
manifest denial of justice resulted.'" Ibid. (quoting Green v.
N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Applying this
highly deferential standard of review, we discern no basis for
disturbing the trial judge's decision allowing defendant to
provide testimony about E.M.
Plaintiff argues that this testimony was "irrelevant to any
facts at issue[,]" primarily because E.M. was not a full-time
custodian and, therefore, was not identically situated to
plaintiff. However, this evidence was plainly relevant because a
plaintiff in a LAD case is required to demonstrate that the
defendant had an "intent to discriminate for an unlawful purpose."
Roper, 184 N.J. Super. at 261. Therefore, defendant was clearly
permitted to show that it lacked this required intent as part of
the burden shifting paradigm established in McDonnell-Douglas.
Accordingly, defendant presented testimony that it operated
a school system that was specifically designed to assist
individuals with disabilities similar to, and different from,
plaintiff's specific condition. Defendant also produced evidence
that its staff, including the supervisor who was evaluating
plaintiff's performance, had worked with B.E., a full-time
custodian with a heart condition, and E.M., a part-time worker,
who was hired to assist the custodians despite his disability.
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This evidence was obviously relevant because it had "a
tendency in reason to prove or disprove any fact of consequence
to the determination of the action[,]" N.J.R.E. 401; that is,
whether defendant and its supervisory staff had an intent to
discriminate against plaintiff for an unlawful purpose.
Therefore, the judge did not abuse her discretion by denying
plaintiff's request to bar this testimony.
We also reject plaintiff's contention that the testimony
about E.M. was "unduly prejudicial" to him. Contrary to
plaintiff's allegations, defendant's non-discriminatory treatment
of E.M. was not the lynchpin of its defense. Instead, defendant
primarily relied upon the documentation it amassed during
plaintiff's employment concerning his poor performance, and
evidence of its many attempts to accommodate his disability so
that he could remain employed. While plaintiff objected to the
testimony concerning E.M., he lodged no complaint when defendant
presented similar evidence concerning B.E., and testimony
concerning its overall mission to serve individuals with
disabilities. The testimony was not "inflammatory" in any way
and, as stated above, directly addressed plaintiff's allegation
that defendant intentionally discriminated against him on the
basis of his disability.
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Plaintiff's argument that defendant failed to disclose that
it planned to discuss its relationship with E.M. at trial is also
without merit. In his written discovery requests, plaintiff only
asked for information concerning custodians employed from 2009 to
the present. Because E.M. left defendant's employ prior to 2009,
defendant had no obligation to include him in its response to this
inquiry. However, plaintiff's supervisor testified about E.M. at
his deposition in December 2014, more than two years before the
trial began. Even though plaintiff was therefore fully aware of
E.M. and defendant's positive employer-employee relationship with
him, plaintiff never asked for any additional discovery concerning
this former employee. Under these circumstances, plaintiff can
certainly not complain that he was unfairly surprised when
defendant sought to introduce this already-discovered evidence at
the trial.3
Turning to Point II, plaintiff argues that the trial judge
erred by not striking certain comments defense counsel made in his
opening and closing statements. Again, we disagree.
It is well settled that courts "afford counsel broad latitude
in closing arguments." Tartaglia v. UBS PaineWebber, Inc., 197
3
In this regard, the judge limited defendant to discussing only
the specific matters the supervisor relayed at his December 2014
deposition. Therefore, plaintiff knew the exact scope of the
proffered testimony before it was presented.
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N.J. 81, 128 (2008) (citing Bender v. Adelson, 187 N.J. 411, 431
(2006)). In fact, "[c]ounsel may argue from the evidence any
conclusion which a jury is free to reach." Colucci v. Oppenheim,
326 N.J. Super. 166, 177 (App. Div. 1999). "[C]ounsel may [also]
draw conclusions even if the inferences that the jury is asked to
make are improbable, perhaps illogical, erroneous or even absurd."
Bender, 187 N.J. at 431 (quoting Colucci, 326 N.J. Super. at 177).
If counsel does not object to comments made by opposing
counsel in his or her arguments to the jury, we "review these
remarks under the plain error standard." Tartaglia, 197 N.J. at
128. Therefore, we "must determine whether defense counsel's
comments had the 'clear capacity for producing an unjust result.'"
Ibid. (quoting State v. Melvin, 65 N.J. 1, 18 (1974)).
Applying this standard, we discern no error, much less plain
error, that would justify disturbing the jury's verdict. In his
opening statement, defense counsel stated that "[i]n 2010 to 2013
[plaintiff's] performance deteriorated." In his final summation,
the attorney acknowledged that defendant was not disputing that
plaintiff had a disability, but also stated, "[w]e don't know if
it's progressive" and that "[b]rain injuries are mysterious."
Plaintiff's attorney did not object to any of these comments.
On appeal, however, plaintiff argues for the first time that
the remarks were not based on the evidence presented at the trial
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because no medical testimony of any kind was presented concerning
plaintiff's specific condition. Therefore, he argues that because
the judge did not sua sponte strike these comments from the record,
he is entitled to a new trial.
This contention lacks merit. Defense counsel's remarks were
clearly fair comment on the evidence presented. Plaintiff's
performance over the three years prior to his termination had
"deteriorated" in defendant's view because he was not
satisfactorily completing the same tasks he had successfully
performed in the preceding years.
The obvious purpose of the attorney's comments concerning the
possible role plaintiff's condition played in his plummeting job
evaluations was to drive home the point that an employer may
terminate a disabled employee for poor performance especially
where, as here, the employer makes accommodations to bring him
back to the level of performance he previously delivered while
employed by the defendant. Dixon, 110 N.J. at 442.
Finally, the judge cautioned the jurors that the attorney's
comments were not evidence in her final charge to them. Thus, we
cannot conclude that defense counsel's statements had the capacity
to cause the jury to deliver a verdict it otherwise would not have
reached. See R. 2:10-2; Tartaglia, 197 N.J. at 128.
Affirmed.
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