NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4036-17T1
JOSEPH IKO,
Plaintiff-Respondent,
v.
COUNTY OF MIDDLESEX,
Defendant-Appellant. ___________________________
Submitted May 13, 2019 – Decided June 20, 2019
Before Judges Sabatino, Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1407-15.
Dvorak & Associates LLC, attorneys for appellant (Lori A. Dvorak and Danielle Abouzeid, of counsel and on the briefs).
Castronovo & McKinney, LLC, attorneys for respondent (Paul R. Castronovo, of counsel and on the brief; Megan Frese Porio, on the brief).
PER CURIAM Defendant County of Middlesex appeals from the trial court's denial of its
motion for a new trial after a jury rendered a verdict in plaintiff Joseph Iko's
favor. Plaintiff brought the action pursuant to the New Jersey Law Against
Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42, alleging that he endured eleven
years of harassment at his workplace, the Middlesex County Sheriff's
Department ("Department" or "Sheriff's Department"), based on his undisputed
disability as a Type I diabetic. At trial, there was overwhelming testimony from
plaintiff's coworkers corroborating plaintiff's claims that he was the subject of
frequent verbal taunts regarding his diabetes and related medical problems. On
appeal, defendant contends the trial court abused its discretion in its disposition
of two in limine motions, and that those errors necessitate a new trial. Defendant
also asserts that the trial court should have granted its motion to dismiss at the
close of plaintiff's case-in-chief based on the lack of expert testimony linking
his eyesight problems, a pancreas transplant, and an aortic tear to his diabetes.
Having reviewed the record in light of the governing legal principles, we reject
defendant's arguments and affirm.
A-4036-17T1 2 I.
Background
Plaintiff has been diagnosed with Type I diabetes since he was six years
old.
In August 1992, plaintiff began his employment with the Sheriff's
Department.1 He worked with the Department until his retirement on August 1,
2017.
In 2004, plaintiff underwent a pancreas transplant because of his diabetes.
When plaintiff returned to work after the transplant, his high-level supervisors
and coworkers began harassing him by regularly calling him names such as
"Half-Dead," "Mr. Magoo," "Stevie Wonder," "Jerry's Kids," "Chinaman," and
"Walking Dead." Plaintiff's then-supervisor Captain James Rizzi 2 called
plaintiff "Half-Dead" "[s]o many times I can't even count." In addition,
Lieutenant Tom Farrell,3 Captain Rizzi and several of plaintiff's coworkers
1 Plaintiff started as an officer and became an investigator in 1995. 2 The harassment began when Rizzi was a Sergeant. Rizzi was promoted to Lieutenant in or around 2011 and to Captain in or around November 2014. 3 The harassment began when Farrell was a Sergeant. Farrell was promoted to Lieutenant in or around 2006 and to Director of Investigations in or around 2007. He was reassigned as Lieutenant in 2012.
A-4036-17T1 3 called him "Eye Lab" on a "daily basis." Plaintiff was offended by these
comments and asked to see the Sherriff to complain, but Captain Rizzi told
plaintiff that the Sheriff did not want to speak with him.
Additionally, Lieutenant Farrell, Sergeant Christopher Neder, Lieutenant
Eric DeProssimo4, and Director Gilbert Nielsen 5 regularly called plaintiff "Half-
Dead." Plaintiff was offended by these comments and asked his superiors to
stop, but they just smiled, laughed, or ignored him.
Further, in or around 2005, Lieutenant Farrell told plaintiff to "shut the
f*** up with you and your n***** pancreas." Plaintiff was upset by this remark
and asked to speak to the Sheriff. However, Captain Rizzi told plaintiff that the
Sheriff did not want to see him.
In 2007, doctors removed plaintiff's transplanted pancreas as a result of a
life-threatening aortic tear. He was hospitalized for almost two months
following the tear. When plaintiff returned to work following the surgery, he
was required to re-qualify for firearms by shooting a submachine gun that he
4 The harassment began when DeProssimo was a Sergeant. He was promoted to Lieutenant in 2012. 5 The harassment began when Nielson was a Sergeant. He was promoted to Lieutenant in April 2013 and again promoted to Director in 2014.
A-4036-17T1 4 had never used before. When he had a problem seeing the target through the
weapon, Chief Michael Barbieri told plaintiff, using expletives, that he should
not be working with the Department if he was unable to see the target.
Motions in Limine
In August 2015, plaintiff filed the instant lawsuit claiming the pervasive
verbal abuse subjected him to a hostile work environment. On October 16, 2017,
just prior to the start of trial, the trial court decided the two motions in limine
that are the subject of this appeal.
a. Plaintiff's Motion in Limine to Bar Evidence Relating to the Semenza incident
The first motion concerned a disciplinary proceeding arising from a June
2013 incident in which plaintiff and his partner, Investigator Dominick
Semenza, were involved in an on-duty motor vehicle accident after the two
improperly decided to drive to Piscataway in a County-owned vehicle without
requesting permission. While en route, Semenza ran a red light, allegedly while
texting, and hit another car. Both plaintiff and Semenza were initially charged
with a variety of infractions regarding improper behavior and an internal affairs
("IA") investigation resulted.
During the first investigation, plaintiff claimed that he could not see
whether Semenza was using his cell phone just prior to the accident, explaining
A-4036-17T1 5 that a mobile data terminal blocked his view. The Sheriff's Department did not
believe this explanation and opened a second IA investigation, ultimately
charging plaintiff with infractions including untruthfulness. The investigations
concluded by sustaining the charges against plaintiff and resulted in a five-day
suspension for the improper behavior charges and a fifteen-day suspension for
untruthfulness. The charges and suspensions were ultimately upheld by the Law
Division in a November 9, 2015 unpublished opinion after plaintiff filed an
action in lieu of prerogative writs.
Plaintiff made a motion in limine to exclude evidence of the Semenza
incident, claiming it was irrelevant, unduly prejudicial, and inadmissible
character evidence. Defendant opposed the motion, claiming that the evidence
was relevant and admissible as an alternate source of plaintiff's emotional
distress and as evidence of plaintiff's motive in filing this lawsuit. The trial
court granted the motion in part and denied it in part, noting that:
Rule 404 bars any reference to these proceedings as either prior bad acts or motives pursuit. 404 is clear that it's a general – prohibition on the use of character evidence or evidence of prior acts to prove that a person acted in conformity therewith. . . . There's just too much concern of opening a trial within a trial. However, defendants do raise a legitimate issue with regard to defendant's psychological damages and the need for reference to those proceedings. I will permit – I will permit the use of those proceedings or reference
A-4036-17T1 6 to those proceedings by the defense expert for the limited purpose of the doctor's opinion as to the fact that there was a litigation pending. There will be no reference of the facts of those claims and the strength or relative weaknesses of those claims, but merely that there was a litigation pending that could have contributed to the plaintiff's psychological damages.
During trial, consistent with the court's ruling, defendant's psychology
expert, Doctor Nancy Just, testified that she "constructed a time line as to each
time [plaintiff] either sought psychological treatment or his general physician
noted that he was depressed or if he, in one instance lost interest in things that
he used to enjoy." She noted that plaintiff's depression corresponded to the time
that he was under disciplinary litigation.
b. Defendant's Motion in Limine to Bar Plaintiff from Referencing Other Harassment Suits Against Defendant
The other motion at issue on appeal concerned defendant's application to
exclude the testimony of eight female former Sheriff's Department employees
who had filed civil complaints against defendant for sexual harassment and/or
gender discrimination. These lawsuits alleged conduct that occurred from the
mid-1990s to 2012. Defendant settled all of these cases with no admission of
liability. Defendant claimed that the proffered testimony was irrelevant and
unduly prejudicial. Plaintiff countered that to the extent defendant would assert
at trial an affirmative defense based on Aguas v. State, 220 N.J. 494, 513 (2015),
A-4036-17T1 7 the evidence was relevant and admissible to show that defendant's harassment
policy and complaint procedures were "in name only."6
Again, the trial court granted the motion in part and denied it in part. In
so ruling, the trial court concluded:
These witnesses which the plaintiff intends to call to show a – basically to show you the inadequacy of the policy of that the policies were not being followed only serves to create confusion in the jury’s mind and is really unnecessary and unduly prejudicial. I will however – so for that reason defense motion is granted in part. However, in the event that the defense raises the issue as to the adequacy of their policies or that these policies are always followed the plaintiff will be free on rebuttal to call these witnesses to rebut that argument. . . . [A]s I said in the event that the defense contends on their case that these policies are adequate or that they’ve always been followed and somehow plaintiff is fabricating his fears that he would be retaliated against plaintiff is free to bring those witnesses.
Trial
Following these rulings, the matter proceeded to trial. Prior to trial, the
parties stipulated that plaintiff's diabetes constitutes a disability under the LAD.
6 Employers are able to present their anti-harassment policies to defend against harassment claims from employees. Aguas, 220 N.J. at 500. Under Aguas, "[t]he efficacy of an employer's remedial program is highly pertinent to an employer's defense." Id. at 513 A-4036-17T1 8 The testimony at trial conclusively established that plaintiff's disability
was generally known in the workplace. Several Sheriff's Department employees
who testified explained that it was well known at the Department that plaintiff
had diabetes, and that it was generally understood that plaintiff's poor eyesight,
pancreas transplant, and aortic tear resulted from his diabetes.
Plaintiff's specific allegations of harassment were likewise widely
corroborated at trial. The Sheriff's Department employees who testified
confirmed that supervisors and employees were heard calling plaintiff insulting
names, including "Eye Lab," "Mr. Magoo," "Walking Dead," and "Half-Dead"
on a regularly at work from 2005 until his 2017 retirement, despite plaintiff
asking people to stop.
Moreover, Investigator Chris Jarema, plaintiff's former partner, testified
that he heard Lieutenant Farrell tell plaintiff "F*** you [and] your n*****
pancreas" in or around 2005 to 2006.
Significantly, Undersheriff Kevin Harris testified that in 2016, he
disciplined Lieutenants Farrell, Neder, and DeProssimo for calling plaintiff
"Eye Lab," and testified that he believed plaintiff's supervisors were being
untruthful by denying this nickname.
A-4036-17T1 9 After plaintiff rested his case, defendant made a motion to dismiss
pursuant to R. 4:37-2 for failure to prove that his eye problems and pancreas
transplant were connected to his diabetes, despite the prior stipulation that
plaintiff's diabetes constituted a disability under the LAD. Defendant argued
that the case law requires expert evidence of disabilities that are not "readily
apparent" and that, although defendant had stipulated to the diabetes, "[w]e don't
have any proof, necessarily, that diabetes affected the vision, or diabetes
necessitated a pancreas transplant or had any effect on this aortic break."
The trial court denied defendant's motion and noted:
I certainly had testimony coming from the plaintiff that he was diabetic, in fact, everybody agrees, yes, he was diabetic . . . . I have a substantial number of witnesses who have come forward, that that was common knowledge at the workplace that he had diabetes and that he was suffering a consequence of those diabetes with relationship to his eyesight, his pancreas and other maladies that were described by people, described by the plaintiff himself. . . . So I don't have a medical expert coming forward to give that testimony, but I certainly have a substantial amount of evidence and testimony in the case to support the argument that everybody there knew that he had diabetes and that he had other related problems related to the diabetes. . . . And so I find that the plaintiff has produced some evidence to show that the conduct occurred because of his diabetes, and that's the standard that he had to meet.
A-4036-17T1 10 Following the denial of its motion, the trial proceeded to defendant's case-
in-chief. Defendant's witnesses, including Lieutenants Farrell, Sergeant Neder,
and Lieutenant DeProssimo, Director Nielsen, Captain Rizzi, Undersheriff
Angelo Falcone, and Chief Barbieri, simply and categorically denied plaintiff's
allegations.
On October 24, 2017, the trial concluded at which time the jury found
defendant liable and awarded a total of $885,000 to plaintiff. Specifically, the
jury awarded $640,000 in compensatory damages and $245,000 in punitive
damages.
Post-Trial Motion for a New Trial
Following the jury's verdict, defendant filed a motion for a new trial on
the basis of the court's in limine rulings and its denial of defendant's motion to
dismiss at the close of plaintiff’s case-in-chief. The court denied the motion,
reiterating its prior finding that the Semenza incident was irrelevant to plaintiff's
motive, unduly prejudicial, and improper character evidence; and that to the
extent it was relevant to emotional distress, "[d]efendant was able to adequately
address that issue at trial through the testimony of [its] psychological expert and
cross-examination of [p]laintiff . . . without going into details of regarding that
discipline." Further, the court concluded that its conditional ruling regarding
A-4036-17T1 11 defendant's motion in limine was a "valid balancing of the parties' concerns and
did not prevent [d]efendant from introducing evidence regarding its Harassment
Policy or asserting an Aguas defense." Finally, the court found that defendant
"made a tactical decision to stipulate that [p]laintiff had diabetes[,]" that
plaintiff's diabetes was "readily apparent to all that would work with [p]laintiff,"
that plaintiff met the "physical disability" standard of the LAD, and that expert
evidence was not required in harassment cases.
This appeal ensued.
II.
"The standard governing an appellate tribunal's review of a trial court's
action on a new trial motion is essentially the same as that controlling the trial
judge." Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (citing Hager v. Weber, 7 N.J.
201, 212 (1951)).
A new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge. . . . The trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.
[R. 4:49-1(a); ibid.]
A-4036-17T1 12 Motions in Limine
On appeal, defendant first contends that the trial court's rulings on two
motions in limine were an abuse of discretion and resulted in a miscarriage of
justice requiring a new trial. We disagree.
An appellate court reviews a trial court's evidentiary rulings for abuse of
discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007). Thus, an appellate
court will not disturb a trial court's evidentiary rulings unless they are "so wide
of the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins.
Co., 160 N.J. 482, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)).
However, an appellate court will review questions of law de novo. Balsamides
v. Protameen Chem., Inc., 160 N.J. 352, 372 (1999).
A motion in limine is a "pretrial request that certain inadmissible evidence
not be referred to or offered at trial." Cho v. Trinitas Reg'l Med. Center, 443
N.J. Super. 461, 470 (App. Div. 2015) (quoting Black's Law Dictionary 791 (9th
ed. 2009)). Although our courts generally disfavor motions in limine, trial
judges retain the discretion to grant the motions when appropriate. Ibid.
Except in certain circumstances, relevant evidence, which is "evidence
having a tendency in reason to prove or disprove any fact of consequence to the
determination of the action[,]" is admissible. N.J.R.E. 401, 402. See also State
A-4036-17T1 13 v. Castagna, 400 N.J. Super. 164, 174 (App. Div. 2008). The evidence must be
probative of a fact that is "really in issue in the case[,]" as determined by
reference to the applicable substantive law. State v. Buckley, 216 N.J. 249, 261
(2013) (quoting State v. Hutchins, 241 N.J. Super. 353, 359 (App. Div. 1990)).
A. The Semenza Incident
"Evidence of a person's character or character trait, including a trait of
care or skill or lack thereof, is not admissible for the purpose of proving that the
person acted in conformity therewith on a particular occasion[,]" except in
certain circumstances. N.J.R.E. 404(a). Further,
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[N.J.R.E. 404(b); State v. Krivacska, 341 N.J. Super. 1, 38-39 (App. Div. 2001).]
In Hill v. N.J. Dept. of Corr. Comm'r Fauver, 342 N.J. Super. 273, 304-
05 (App. Div. 2001), we upheld the admission of evidence that a defendant left
her previous job due to allegations of embezzlement, rather than her stated
reason that she was relocating following a divorce, to establish her motive for
A-4036-17T1 14 filing an allegedly false sexual harassment suit. In Hill, the plaintiff,
superintendent of a juvenile detention facility, was fired after a teacher,
defendant June Peterson, made complaints that the plaintiff sexually harassed
her. Id. at 288-89. Peterson's complaints followed an incident in which the
plaintiff threatened Peterson with termination based on reports that she was
having inappropriate sexual relations with the inmates. Id. at 287-89. Following
his termination, the plaintiff brought various claims against his employer and
Peterson, including "conspiracy to file false sexual harassment charges." Id. at
285, 289. Under those facts, we found that the issue of Peterson's motive was
central to the plaintiff's claim that Peterson filed a false charge against him to
salvage her position and avoid termination.
Here, in contrast, plaintiff's motive for filing the instant lawsuit is not
probative of a fact that is "really in issue in the case[.]" Buckley, 216 N.J. at
261. The trial court properly determined that the evidence of a minor
disciplinary proceeding that resulted in a brief suspension did not serve to "prove
or disprove any fact of consequence to the determination of" whether the alleged
conduct amounted to harassment. N.J.R.E. 401, 402; Lehmann, 132 N.J. at 603-
04. Rather, defendant's attempt to get the prior underlying charge of
untruthfulness before the jury was, as the judge correctly found, a violation of
A-4036-17T1 15 N.J.R.E. 404(a). The judge properly recognized the relevance of plaintiff's prior
charges to his claims of psychological damages and allowed defendant's
psychologist to testify that his depression occurred in a timeframe when he was
involved in disciplinary litigation. That decision was a reasonable
accommodation of the parties' respective interests and consistent with governing
law. We discern no abuse of discretion.
B. Unrelated sexual harassment claims
We also reject defendant's contention that the trial court abused its
discretion in disposing of the defendant's motion to exclude testimony of other
harassment claims against the Sheriff's Department. As the trial court found,
harassment of other employees is relevant and admissible to the efficacy of an
employer's remedial program when asserted as a defense. See Godfrey v.
Princeton Theological Seminary, 196 N.J. 178, 201 (2008) (citing Gaines v.
Bellino, 173 N.J. 301, 313 (2002)) ("In addition to considering whether an
employer's preventative measures exist and have been enforced, we also have
found to be relevant evidence that addressed the adequacy of an institution's
response to prior reported incidents of sexual harassment. Such evidence is
helpful to determine whether an institution may be permitted to disclaim
vicarious liability on grounds of having exercised 'due care.'"). The trial court
A-4036-17T1 16 properly applied the law by holding that the evidence would not be admissible
on plaintiff's case-in-chief, but would be admissible as rebuttal should defendant
pursue an Aguas defense.
We conclude that the trial court did not abuse its discretion in disposing
of the subject motions in limine, and we find that those decisions did not result
in a manifest injustice requiring a new trial.
Motion for Involuntary Dismissal
Next, defendant argues that the trial court erred in denying its motion for
involuntary dismissal at the end of plaintiff's case-in-chief because plaintiff
failed to prove "that he suffered from visible symptoms of diabetes upon which
he based his claim of harassment by way of" expert testimony. We disagree.
Appellate courts "review a motion for involuntary dismissal at trial using
the same standard as the trial court." Prager v. Joyce Honda, Inc., 447 N.J.
Super. 124, 134 (App. Div. 2016) (citing Smith v. Millville Rescue Squad, 225
N.J. 373, 397 (2016)).
After having completed the presentation of the evidence on all matters other than the matter of damages (if that is an issue), the plaintiff shall so announce to the court, and thereupon the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right
A-4036-17T1 17 to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.
[R. 4:37-2.]
The trial court must determine if "accepting as true all the evidence which
supports the position of the party defending against the motion and according
him the benefit of all inferences which can reasonably and legitimately be
deduced therefrom, reasonable minds could differ[.]" Verdicchio v. Ricca, 179
N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612
(2000)). If reasonable minds can differ, the motion must be denied. Ibid. Stated
another way, "the motion 'should be granted where no rational juror could
conclude that the plaintiff marshaled sufficient evidence to satisfy each prima
facie element of a cause of action.'" Prager v. Joyce Honda, Inc., 447 N.J. Super.
124, 134 (App. Div. 2016) (quoting Godfrey v. Princeton Theological Seminary,
196 N.J. 178, 197, 952 A.2d 1034 (2008)).
The LAD provides that "[i]t shall be an unlawful employment practice, or,
as the case may be, an unlawful discrimination . . . [f]or an employer, because
of . . . disability . . . to discriminate against such individual in . . . conditions or
privileges of employment." N.J.S.A. 10:5-12(a). A plaintiff can state a claim
for discrimination under the LAD by demonstrating that his superiors and/or
A-4036-17T1 18 coworkers created a hostile work environment. See Lehmann v. Toys 'R' Us,
Inc., 132 N.J. 587, 603 (1993); Taylor v. Metzger, 152 N.J. 490, 498 (1998). To
prove that harassing workplace conduct amounts to hostile work environment
discrimination based on a plaintiff's disability, he or she must demonstrate that
the conduct "(1) would not have occurred but for the employee's [disability];
and it was (2) severe or pervasive enough to make a (3) reasonable [diabetic]
believe that (4) the conditions of employment are altered and the working
environment is hostile or abusive." Lehmann, 132 N.J. at 603-04 (emphasis in
original). See also Leonard v. Metropolitan Life Ins. Go., 318 N.J. Super. 337,
344 (App. Div. 1999).
In a hostile work environment case, the focus in on the harasser's conduct,
not the plaintiff's disability. See Leonard v. Metropolitan Life Ins. Co., 318 N.J.
Super. 337, 342-44 (App. Div. 1999). For instance, in Leonard, the plaintiff
suffered from Type II insulin-dependent diabetes and had to inject himself with
insulin twice a day. Id. at 339. If his blood sugar dropped, the plaintiff felt
shaky and needed to ingest some form of simple sugar. Ibid. The plaintiff's
claim arose from two incidents during which his supervisor told him, using
expletives, that he could not miss a meeting to eat lunch despite his diabetic
condition. Id. at 340. The plaintiff brought a LAD claim of hostile work
A-4036-17T1 19 environment based on disability, claiming that he was subjected to a hostile
work environment "because of his physical handicap, diabetes." Id. at 339.
The motion judge granted summary judgment to the defendant due to the
plaintiff's failure to "demonstrate he had been required to labor under conditions
unreasonably different from his co-employees," but we reversed and remanded
for trial. Id. at 339, 346. In reversing, we explained that, under the hostile work
environment standard:
[i]t is the harasser's conduct, in this case [the plaintiff's supervisor's] statements to or treatment of plaintiff, that should have been the focus of the motion judge’s inquiry. . . . The issue is whether a rational fact finder could determine that [the supervisor's] conduct occurred because of plaintiff's diabetes and that a reasonable diabetic would consider the conduct "sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment."
[Id. at 344 (citing Lehmann, 132 N.J. at 603-04; Taylor, 152 N.J. at 498).]
We reject defendant's argument that Viscik v. Fowler Equipment Co., 173
N.J. 1 (2002) and Clowes v. Terminix International, 109 N.J. 575 (1988)
required plaintiff to provide expert or treating physician medical testimony to
causally relate his limited eyesight, pancreas transplant and aortic tear to his
conceded disability of diabetes.
A-4036-17T1 20 In Clowes, the "principal issue . . . is whether alcoholism is to be deemed
a handicap under the New Jersey Law Against Discrimination[.]" 109 N.J. at
577. There, the plaintiff alleged that he was unlawfully discharged from his
employment due to his alcoholism. Id. at 584. After consideration of the
plaintiff's expert testimony, the Court held that alcoholism was a "handicap"
under the LAD. Id. at 591-93, 595. However, the Court also concluded that the
plaintiff failed to prove that he suffered from alcoholism because the "only
evidence in the record regarding Clowes' alleged alcoholism is his own assertion
that he was an alcoholic, and partial medical records from his hospitalization"
at a rehabilitation center. Id. at 598. The Court noted that the plaintiff presented
no evidence that he was an alcoholic via his expert or any other witness who had
conducted a physical examination or reviewed the relevant medical records. Id.
at 597.
In Viscik, the plaintiff alleged that her employer terminated her because
of her morbid obesity. 173 N.J. at 5. The plaintiff attributed her morbid obesity
to two factors: a "metabolic disorder that prevents [her] body from breaking
down fats," and injuries from a car accident which resulted in degenerative
arthritis, restricted lung capacity, and depression. 173 N.J. at 6. To support her
claim, the plaintiff presented the testimony of her treating physician who
A-4036-17T1 21 "testified about Viscik's illnesses, including her obesity and its complications,
as a medical expert qualified in internal medicine and weight-loss." Id. at 10.
The Court concluded that "Viscik's testimony, medical history, and her expert's
opinion fully support the finding that she established a physical handicap within
the meaning of LAD." Id. at 17.
Viscik and Clowes, however, did not involve hostile work environment
claims and are thus distinguishable. The focus in a hostile work environment
case is the harasser's conduct, not the plaintiff's disability. Leonard, 318 N.J.
Super. at 342-44. Here, as in Leonard, there was abundant evidence that plaintiff
suffered verbal harassment from his coworkers and superiors because of his
diabetes. Id. at 339. That made out a prima facie case of harassment and
therefore the trial court properly denied the motion for involuntary dismissal.
Regardless, as the trial court noted, defendant, apparently for strategic
purposes, stipulated that plaintiff was diagnosed with Type I diabetes and that
his diabetes constitutes a disability under the LAD. Thus, unlike in Viscik and
Clowes, there was no need for medical testimony that would demonstrate that
plaintiff's condition amounted to diabetes or that it constituted a disability under
the LAD. Cf. 173 N.J. at 17; 109 N.J. at 577. Moreover, as the trial court found,
there was abundant testimony establishing that plaintiff's limited eyesight,
A-4036-17T1 22 pancreas transplant, and aortic tear were generally understood throughout the
workplace to have been caused by his diabetes. Thus, accepting all of plaintiff's
testimony as true, and affording plaintiff all inferences in his favor, a reasonable
jury could, and did, find that defendant's employees harassed plaintiff as a result
of his diabetes, and that the harassment was severe and pervasive. See
Verdicchio, 179 N.J. at 30; Prager, 447 N.J. Super. at 134. Therefore, the trial
court correctly denied defendant's motion to dismiss.
To the extent we have not specifically addressed any arguments raised by
defendant, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4036-17T1 23