NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1999-24
ALLEN GURDGIEL,
Plaintiff-Appellant,
v.
COUNTY OF CAPE MAY LIBRARY,
Defendant-Respondent.
Submitted March 11, 2026 – Decided June 18, 2026
Before Judges Currier and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0014-23.
Costello & Silverman, LLC, attorneys for appellant (Jacquelyn R. Matchett, of counsel and on the briefs; Miriam S. Edelstein, on the briefs).
Marshall Dennehey, PC, attorneys for respondent (Matthew J. Behr and Walter F. Kawalec, III, on the brief).
PER CURIAM Plaintiff began working as a building maintenance and repairer for
defendant County of Cape May Library in 2008. In 2021, after plaintiff began
using a cane at work, defendant referred him for a fitness for duty examination.
Unhappy with the evaluator's conclusion that plaintiff could not perform his job
requirements, plaintiff requested an administrative hearing. The hearing officer
found plaintiff's physical limitations were a risk to himself and others.
Thereafter, defendant terminated plaintiff.
Plaintiff filed a complaint against defendant alleging multiple violations
of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50,
including: disability discrimination; perception of disability discrimination;
failure to accommodate; and retaliation. Plaintiff appeals from the court's March
7, 2025 order granting defendant summary judgment. We affirm.
I.
Plaintiff's job description required him to perform "simple and moderately
physically strenuous tasks involved in cleaning and maintaining offices,
furniture, buildings, and grounds." He was also expected to "assist in making
minor repairs to buildings or equipment." Plaintiff testified that he operated as
a "jack-of-all-trades." Plaintiff's duties included, but were not limited to,
replacing ceiling tiles and light bulbs, painting small areas, assembling furniture,
A-1999-24 2 completing minor repairs, and performing preventative maintenance. Plaintiff
testified that during his employment he often had to assemble and disassemble
shelving and transfer boxes of books between branches.
In June 2021, plaintiff began using a cane at work when rising from a
seated position. Plaintiff testified he had begun experiencing ongoing pain in
his right knee approximately a year earlier. He began treatment with an
orthopedic knee specialist, Kevin McHale, M.D., who diagnosed plaintiff "with
a right knee meniscus tear and arthritis." Plaintiff stated he mainly experienced
pain when applying pressure to the knee while standing up from a seated
position, and the use of the cane alleviated that pressure.
After observing plaintiff using the cane, defendant's Human Resources
Department (HR) requested a doctor's note regarding his ability to perform his
work duties. In September 2021, a nurse practitioner associated with plaintiff's
primary care doctor issued a note stating that "[plaintiff] ha[d] right knee
problems and is under the care of Orthopaedic specialist. [Plaintiff] does not
have any work restrictions at this time. Please allow him to use cane as needed."
Plaintiff and his union representatives met with HR. In that meeting, HR
expressed concern that the note was contradictory, as it stated plaintiff had no
work restrictions but should be allowed to use a cane as needed . HR requested
A-1999-24 3 further information about plaintiff's injury, limitations and recovery and
requested he sign a HIPPAA authorization to obtain his medical records.
Plaintiff told HR he did not intend to use the cane anymore at work. The nurse
practitioner submitted a second medical note reiterating plaintiff could continue
to work without restrictions.
After plaintiff saw Dr. McHale for treatment in October 2021, the doctor
provided a note stating that plaintiff could work without restriction, but that he
was to wear a hinge brace or use a cane to transition "from a sitting to standing
position while at work when he has flare-ups and/or his knee is bothering him."
The note prompted HR to request another meeting. At the ensuing meeting, HR
advised plaintiff it was referring him for a "fitness for duty exam" and placed
him on administrative leave with pay pending the exam results. Plaintiff asserts
that during this meeting he requested defendant provide him with a standing
desk and/or a tablet.
Tim Pinsky, D.O., MPH., performed the fitness for duty evaluation in
October 2021. Dr. Pinsky noted plaintiff's job description required him to
occasionally climb up ladders and at times move objects weighing about fifty
pounds. Plaintiff informed Dr. Pinsky he had two cortisone shots in the knee in
March and October 2021, administered by Dr. McHale. Dr. Pinsky reviewed
A-1999-24 4 plaintiff's extensive job duty requirements as well as the MRI report and
concluded that "[t]aking the three main components of fitness for duty into
account: Physical capacity, tolerance, and risks; these observations . . .
demonstrate that [plaintiff] [was] not . . . fit for duty in the positions of [b]uilding
[m]aintenance [w]orker and [m]aintenance [r]epairer for the [l]ibrary." Dr.
Pinsky stated that plaintiff "would not only have difficulty performing the full
duty tasks of the positions listed but were he to do so [sic] would place both
himself and others at significant and imminent risk of harm to health and safety
of lasting duration." Dr. Pinsky contacted Dr. McHale to discuss the alleged
contradictory nurse practitioner notes, but ultimately they did not speak to each
other before Dr. Pinsky issued his report.
Based on Dr. Pinsky's report, defendant issued a preliminary notice of
discipline in December 2021, as it was determined that plaintiff was not fit for
duty for his position. Thereafter, Dr. McHale issued a letter stating he had
"carefully reviewed the requirements of [plaintiff's] job" and determined
him to be capable and healthy to perform . . . duties as [was] required under his job, WITHOUT ANY RESTRICTIONS. This information [was] based on [Dr. McHale's] knowledge of him as an established patient and his most recent visit and [his] thorough assessment of the patient at [that] time.
A-1999-24 5 An administrative hearing was held in January 2022. Defendant's HR
director provided background information regarding plaintiff's job description
including working on scaffolding and using/moving heavy objects. Plaintiff
attempted to introduce the most recent note from Dr. McHale, but after
defendant objected to the note as hearsay since Dr. McHale was not testifying
to its contents, the hearing officer concluded the note was hearsay and
inadmissible. The hearing officer did review the nurse practitioner notes
plaintiff had submitted to HR.
Dr. Pinsky testified consistent with his report and further determined there
was "no medical device or other alternate supportive aid to assist [plaintiff] in
doing his job."
The hearing officer found Dr. Pinsky's report credible, stating:
Dr. Pinsky specifically notes in addition to using ladders and working on scaffolding that many of his other job tasks are more strenuous than simply getting up from a chair for which . . . [plaintiff] needs a cane. These include: stand/walk on his feet for protracted periods of time, climb ladders and equipment, bending, kneeling, lifting, carrying, pushing, pulling, move objects weighing about 50 pounds, mow lawns, trim hedges, rake and burn leaves and refuse, trim driveway and sidewalk edges using spades and hose, shovel snow, and spread sand or salt on icy surfaces to prevent slipping. These obviously put extra pressure on the knees further exposing his limited physical capacity; increasing the risk of injury to himself and others.
A-1999-24 6 The officer concluded plaintiff's "physical limitations and use of the cane
support aid . . . ma[de] him a risk factor to himself and others." On February
14, 2022, defendant issued plaintiff a Final Notice of Disciplinary Action
informing him that he had been terminated because he was not able to work in
the capacity for which he was hired.
Following the administrative hearing, County counsel advised plaintiff he
could have another doctor evaluate him and if the doctor concluded plaintiff
could work without limitations, the County would comply with that opinion.
Plaintiff did not accept the offer.
Thereafter, plaintiff filed a complaint against defendant alleging multiple
violations of the LAD. Following the conclusion of discovery, defendant moved
for summary judgment. The court granted the motion on March 7, 2025.
II.
On appeal, plaintiff contends the court erred in granting summary
judgment because he presented a prima facie case of discrimination for an actual
or perceived disability; defendant failed to provide reasonable accommodations
to permit him to perform his job; there was sufficient evidence to support his
retaliation claim and he was entitled to punitive damages and equitable
remedies.
A-1999-24 7 We review a trial court's decision on a motion for summary judgment de
novo, applying the same standard as used by the trial court. Samolyk v. Berthe,
251 N.J. 73, 78 (2022). Considering the evidence in the light most favorable to
the nonmoving party, summary judgment is granted "if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law." Allen v. Cape May Cnty., 246 N.J. 275, 288-89 (2021) (quoting
R. 4:46-2(c)).
A.
The LAD makes it unlawful
[f]or an employer, because of the . . . disability . . . of any individual . . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions, or privileges of employment.
[N.J.S.A. 10:5-12(a).]
"All of the provisions of the [LAD] . . . shall be construed to prohibit any
unlawful discrimination against any person . . . unless the nature and extent of
A-1999-24 8 the disability reasonably precludes the performance of the particular
employment." N.J.S.A. 10:5-4.1.
When a plaintiff alleges [he] was fired discriminatorily based on a disability, [he] must prove by a preponderance of the evidence that: (1) [he] is disabled within the meaning of the LAD; (2) [he] "was performing [his] job at a level that met [his] employer's legitimate expectations"; (3) [he] was discharged; and (4) the employer sought someone else to perform the same work after [he] left.
[Grande v. St. Clare's Health Sys., 230 N.J. 1, 17-18 (2017) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988)).]
The plaintiff bears the burden of proving the elements of a prima facie
discrimination case. Victor v. State, 203 N.J. 383, 408 (2010). "The evidentiary
burden at the prima facie stage is 'rather modest: it is to demonstrate to the court
that plaintiff's factual scenario is compatible with discriminatory intent —i.e.,
that discrimination could be a reason for the employer's action.'" Zive v. Stanley
Roberts, Inc., 182 N.J. 436, 447 (2005) (emphasis in original) (quoting Marzano
v. Comput. Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)).
Once a plaintiff has met its burden of making a prima facie case, "the
burden of going forward shifts to the employer to articulate a legitimate, non -
discriminatory reason for the adverse employment action." Viscik v. Fowler
Equip. Co., 173 N.J. 1, 14 (2002). "After the employer does so, the burden shifts
A-1999-24 9 back to the plaintiff to show that the employer's proffered reason was merely a
pretext for discrimination." Ibid. To prove this, "plaintiff must do more than
simply show that the employer's reason was false; he or she must also
demonstrate that the employer was motivated by discriminatory intent." Ibid.
Thus, "a plaintiff retains the ultimate burden of persuasion at all times; only the
burden of production shifts." Ibid.
The trial court found that plaintiff "failed to present a prima facie case of
disability discrimination under the LAD." Specifically, that plaintiff did not
satisfy prongs two and four of the prima facie case.
The parties do not dispute plaintiff satisfied the first and third prongs of
the LAD. We turn then to an analysis of the remaining elements. Under prong
two, plaintiff must prove he was performing his job at a level that met his
employer's legitimate expectation. Grande, 230 N.J. at 17-18.
In analyzing element two, the court found that plaintiff's "medial meniscus
tear and arthritis in his right knee" disqualified him from performing the
essential functions of the job. The court reasoned that "[n]o reasonable
employer would want their employee who has used a cane during at least two
periods of time, who has had trouble getting up from a chair, doing [the physical
labor plaintiff's job required]."
A-1999-24 10 However, whether an employer wants an employee is not the substantive
analysis. That reasoning is contrary to the policy behind the LAD. An employer
who does not want an employee because they may be using an assistive device
during the performance of their job duties may not freely terminate that
employee for that reason unless the work falls below the employer's expectation.
Here, there was no evidence plaintiff was not performing his job duties. Plaintiff
testified he was performing all his job functions and only used the cane for a
period of two weeks on occasion when he got up from a sitting position to avoid
putting full weight on his right knee. Moreover, plaintiff presented several notes
from Dr. McHale and his staff stating plaintiff could work full duty without any
restrictions.
Defendant did not present any evidence to the contrary. It relied solely
on Dr. Pinsky's report, which opined that plaintiff's medical condition would
prevent him from doing all of his wide-ranging labor-intensive duties rather than
observable evidence that plaintiff was not performing his duties to the level
expected by defendant. Of course, there were only a few weeks between
plaintiff first using the cane and the fitness for duty examination , which limited
the amount of time defendant could assess plaintiff performing the various job
tasks.
A-1999-24 11 The second prong of the prima facie case must be evaluated by an
objective standard. Grande, 230 N.J. at 18. "Thus, deficiencies in an employee's
performance are reserved for consideration at later stages in the analysis." Ibid.
"[A]ll that is necessary is that the plaintiff produce evidence showing that [he]
was actually performing the job prior to termination." Ibid. (quoting Zive, 182
N.J. at 454). We are satisfied plaintiff presented sufficient evidence to meet his
burden as to prong two.
We turn to prong four under which plaintiff must establish "the employer
sought someone else to perform the same work after [he] left." Ibid. Plaintiff
did not present any evidence to support this prong. According to the assistant
director of the library, the position had not been filled as of September 2022.
However, we have previously stated that
[i]n light of the various contexts in which employment discrimination claims arise, we consider it unwise to require a plaintiff to establish unfailingly as part of the prima facie case that plaintiff was replaced by an individual outside the plaintiff's protected class. The appropriate fourth element of a plaintiff's prima facie case requires a showing that the challenged employment decision (i.e., failure to hire, failure to promote, wrongful discharge) took place under circumstances that give rise to an inference of unlawful discrimination. That formulation permits a plaintiff to satisfy the fourth element in a variety of ways.
A-1999-24 12 [Williams v. Pemberton Twp. Pub. Schs., 323 N.J. Super. 490, 502 (App. Div. 1999) (citations omitted).]
The trial court found "there [was] no evidence that [p]laintiff's termination
occurred under circumstances giving rise to an inference of discrimination."
The court noted that plaintiff's termination "was based on [defendant's] reliance
on Dr. Pinsky's examination, his report, and his testimony at the administrative
hearing."
It remained plaintiff's burden to present some evidence that discrimination
could be a reason for defendant's action. Zive, 182 N.J. at 447. He has not done
so. Plaintiff contends only that defendant did not meet its burden of proof
regarding its action. However, it was not defendant's burden at this point. The
burden of going forward only shifts to the employer to articulate a legitimate
non-discriminatory reason for the adverse employment action after plaintiff has
met their burden of demonstrating a prima facie case. See Viscik, 173 N.J. at
14.
The trial court did not err in finding there was not "any competent
evidence that [p]laintiff's termination occurred under circumstances giving rise
to an inference of discrimination."
Because plaintiff did not establish a prima facie case of discrimination
under the LAD, the trial court properly granted summary judgment on that count.
A-1999-24 13 B.
Plaintiff contends that the trial court erred in granting summary judgment
on the LAD failure to accommodate count because defendant failed to identify
existing accommodations which could permit plaintiff to perform his job.
Under N.J.A.C. 13:13-2.5(b), "[a]n employer must make a reasonable
accommodation to the limitations of an employee or applicant who is a person
with a disability, unless the employer can demonstrate that the accommodation
would impose an undue hardship on the operation of its business." "To
determine what appropriate accommodation is necessary, the employer must
initiate an informal interactive process with the employee. . . . Once a
handicapped employee has requested assistance, it is the employer who must
make the reasonable effort to determine the appropriate accommodation."
Tynan v. Vicinage 13 of Superior Ct., 351 N.J. Super. 385, 400 (App. Div.
2002).
To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: (1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for [his] disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith.
A-1999-24 14 [Id. at 400-01.]
"An employer's duty to accommodate extends only so far as necessary to allow
'a disabled employee to perform the essential functions of his job. It does not
require acquiescence to the employee's every demand.'" Id. at 397 (quoting
Vande Zande v. State of Wis. Dep't of Admin., 851 F. Supp. 353, 362 (W.D.
Wis. 1994), aff'd, 44 F.3d 538 (7th Cir. 1995)).
In granting defendant's motion for summary judgment on this claim, the
trial court found that plaintiff's request for a standing desk or tablet "would do
nothing to allow him to perform the essential functions of his job as a [b]uilding
[m]aintenance [w]orker/[m]aintenance [r]epairer, such as using ladders, lifting
and moving heavy boxes of books, and performing prolonged physical labor."
We agree.
Plaintiff’s request for an accommodation in the form of a standing desk or
a tablet does not relate to the essential functions of his job. Plaintiff’s duties
included labor-intensive tasks, such as replacing ceiling tiles and light bulbs,
moving books, furniture, and other library materials, painting, cleaning, and
making general repairs. Plaintiff’s request for a computer tablet and a standing
desk would not affect his ability to perform these physical manual tasks.
A-1999-24 15 C.
We turn to plaintiff's action for retaliation under the LAD. Plaintiff argues
that the trial court erred in concluding that "[p]laintiff's complaints were not
protected activity under the LAD as well as in concluding that no causal link
existed between the protected activity and the adverse employment action."
Before the trial court, plaintiff argued that he "engaged in protected
conduct prior to the [administrative] hearing when he provided documentation
related to his medical status and when he made a complaint regarding
[d]efendant's decision to send him for an examination."
The court found it was not protected activity for "an employee [to]
provide[] medical records to the employer when the employer has a reasonable
concern regarding the employee's ability to perform essential job duties and to
perform them safely. This is a normal and essential part of running a business."
Nor was it protected activity to request a fitness for duty examination.
On appeal, plaintiff now asserts he engaged in protected activity when he:
(1) "requested reasonable accommodations to use a standing desk and a tablet
during the October 13, 2021 meeting with HR"; (2) "complained in that same
meeting that he was being unfairly treated because of his medical condition ";
and (3) "complained that he was being unfairly treated because of his medical
A-1999-24 16 condition at the [administrative] hearing." These are new assertions that have
not been considered by the trial court.
N.J.S.A. 10:5-12(d) makes it unlawful for an employer
to take reprisals against any person because that person has opposed any practices or acts forbidden under [this act] or because that person has sought legal advice regarding rights under [this act], shared relevant information with legal counsel, shared information with a governmental entity, or filed a complaint, testified, or assisted in any proceeding under [this act] or to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [this act].
To support a claim of retaliation, a plaintiff must demonstrate that "the
employee 'engaged in a protected activity known to the [employer,]' the
employee was 'subjected to an adverse employment decision[,]' and there is a
causal link between the [two elements]." Battaglia v. United Parcel Serv., Inc.,
214 N.J. 518, 547 (2013) (first and second alterations in original). If a prima
face case is established, the claim is evaluated in accordance with the
McDonnell Douglas 1 burden shifting framework. Id. at 546-47.
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
A-1999-24 17 Our review reflects that plaintiff has not satisfied the causality prong of
the retaliation analysis. The record does not demonstrate that defendant
terminated plaintiff because he requested reasonable accommodations or
complained of unfair treatment related to his medical condition. There is no
evidence to support plaintiff's contention that these communications were the
basis for his termination. Instead, the determination to terminate defendant
resulted from Dr. Pinsky's report, which found plaintiff unfit to perform his job
duties. As plaintiff is "unable to point to any facts to support [his] retaliatory
claim except that [he] complained and was terminated," the trial court did not
err in granting summary judgment on the retaliation claim. See Young v. Hobart
W. Grp., 385 N.J. Super. 448, 466 (App. Div. 2005).
For the reasons stated, we see no reason to disturb the trial court's order
granting defendant summary judgment on the substantive claims. Therefore, we
need not address the remaining arguments as they are moot.
Affirmed.
A-1999-24 18