WEBER v. DON LONGO, INC. et al

Filing 40

OPINION. Signed by Judge Kevin McNulty on 3/2/2018. (JB, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 15-2406 (KM)(MAH)

PETER WEBER,
Plaintiff,

OPINION
V.

PON LONGO, INC., DONALD P.
LONGO, WILLIAM LONGO, JOHN
DOE 1-5, MARY DOE 1-5, and/or
DOE CORPORATION 1-5
Defendants.

KEVIN MCNULTY, U.S.D.J.:

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 the ADA Amendments

§ 12101 et seq.; the New Jersey Law Against
Discrimination (“NJLAD”), N.J.S.A. § 10:5—1, et seq.; fraud; equitable fraud;

Act of 2008 (“ADAAA”), 42 U.S.C.

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.

1

TABLE OF CONTENTS

Background
A. Procedural History
B. Relevant Facts
C. Disputed Facts

3
3
4
11

II.

Legal Standard

14

III.

Discussion

16

A. Counts I and II- ADA and NJLAD Claims- Discriminatory
Discharge
1. ADA
Disability
i.
a. “Actual disability” prong
b. “Regarded as disabled” prong

16
17
18
19
24
26

2. NJLAD
B. Counts III and IV- Fraud and Equitable Fraud
C. Count V- Intentional Infliction of Emotional Distress
IV.

29
32
34

Conclusion

9

I.

Background’
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 summanT
judgment. (ECF no. 38). On August 7, 2017, Longo filed a reply brief. (ECF no.
39).2

Record items cited repeatedly will be abbreviated as follows:
“Compi.”

=

Complaint (ECF no. 1)

“Def. Br.” = Brief in Support of Defendant Longo’s Motion for Summary
Judgment (ECF no. 37)
“P1. Opp.” = Plaintiff Weber’s Opposition to Defendant Longo’s Motion for
Summary Judgment (ECF no. 38)
“Def. Reply” = Reply Brief in Further Support of Defendant Longo’s Motion for
Summary Judgment (ECF no. 39)
On January 30, 2017, Longo filed a motion to exclude expert testimony and
report. (ECE no. 25-4). On March 6, 2017, Weber filed a memorandum in opposition to
Longo’s motion. (ECF no. 31). On March 13, 2017, Longo filed a reply brief. (ECF no.
32). The motion has not been decided.

2

S

B. Relevant Facts3
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
Exh. B at 7:22 to :23; Compl.

9

9

2, 5) (citing ECF no. 37-1,

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 “Lt]here were comments
For purposes of this motion, I consider Defendant Longo’s Statement of
Undisputed Material Facts (“DSMF”)(ECF no. 37-2), Plaintiff Weber’s Statement of
Undisputed Material Facts (“PSMF”)(ECF no. 38-1), and Defendant Longo’s Response
to Plaintiff Weber’s Statement of Undisputed Material Facts (“DRSMF”)(ECF no. 39-2)
pursuant to Local Rule 56.1, as well as the deposition testimony and documentary
evidence.

3

Don Longo, Inc. was formed and incorporated under New Jersey State law.
(DSMF ‘ 2)(citing ECF no. 37-1, Exh. B at 7:22 to :23).
During their depositions, Donald Longo and Donald Weber referred to William
Longo as “Billy.” See ECF no. 37-1, Exhs. C and D. To avoid confusion, I will refer to
Donald Longo as Donald and William Longo as William.

5

There is dispute as to whether the policy is explained to all employees on their
date of hire. (DSMF ¶ 7; PSMF ¶ 7). Weber testified that no one explained to him that
he would be a probationary employee. (ECF no. 38-3, Eth .A at 52:8 to :11).

6

4

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. 0 at 6 1:24 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). Aftenvard, 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 55:2 1 to :22).

5

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 :2 5). 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)(citingECFno. 37-1, Exh. Dat 71:9 to :14). Donald took

Weber to a medical clinic where Weber received stitches.7 (Id. at

¶

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

¶

22)(citing

ECF no. 37-1, Exh. C at 28:8 to :20). Donald testified that Weber “insisted on
7

The number of stitches is not stated by either party.
6

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

42:2 1). 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
panj 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 [Weberl 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
It is unclear whether the date of the pump installation was July 22, 2014,
before Weber’s injury, or August 22, 2014, after Weber’s injun. William’s deposition
testimony describes the date as August 22, 2014. See (ECF no. 37-1, Exh. B at 41:10
to 43:1). However, Weber’s deposition testimony describes the date as July 22, 2014.
See (ECF no. 37-1, Exh. D at 58:23 to 59:24).
8

7

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 pani.” (ECE no. 371, 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

¶

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 co
workers 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. (EC? no. 38-3, Exh. A at 84:3 to :24).

8

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 :2 1). 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 survey9 as to whether they were willing to work with Weber. (ECF
Longo submitted a copy of the survey responses as Exhibit E. See (ECF no. 371, Exh. E). Weber disputes the authenticity of the Exhibit. (PSMF ¶ 36).
In deciding a motion for summary judgment, the Court may consider only
evidence which is admissible at trial. Fed. R. Civ. p. 56(e); Countnjside Oil Co., Inc. v.
Travelers Ins. Co., 928 F. Supp. 474, 482 (D.N.J. 1995). Federal Rule of Evidence
901(a) states: “to satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” Fed. R. Evid. 90 1(a). However, the evidence
need not technically be “in a form that would be admissible at trial in order to avoid
summan’ judgment,” so long as the evidence conforms to “the kinds of evidenfian’
materials listed in Rule 56(c).” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
9

9

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. 371, 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 51,319.97, 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. Bat 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,
Here, the anonymous surveys are attached to the Cerfificadon of John J. Lavin,
Esq., who states that “[t]me and correct copies” of documents are attached. The
admissibility of the surveys is not dispositive of the current legal issues before this
Court.
10

the Chester Township Police Department filed an Investigation Report based on
a harassment complaint by Donald and Donna. (ECF no. 37-1, Exh. H).’°
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 29, 2014 Meeting

The parties dispute whether William advised Weber that he was being
fired on August 29, 2014.
According to William, he had a conversation with Weber about how he
was considering letting him go. (ECF no. 37-1, Exh. B at 104:9 to :11). William
testified that he came to his decision at the end of the week,” after numerous
incidents, including Weber filling the shop with paint fumes and disobeying
instructions, including his decision to use the grinder after being instructed

Weber disputes the authenticity of Exhibit 0, the Incident Report, and Exhibit
H, the Investigation Report. (PSMF ¶1 39, 40). Both Exhibits are police reports which
are attached to the Certification of John J. Lavin, Esq., who states that “[t]rue and
correct copies” of documents are attached. The admissibility of those Exhibits is not
dispositive of the current legal issues before this Court.
10

11

August 29, 2014 was a Friday.
11

not to use it. (Id. at 104:18 to :25). William says he told Weber he was letting
him go, at which point Weber asked him to reconsider and stated that he
would do a better job if given more instruction. (Id. at 105:1 to :7). William says
called Weber the next day, Saturday, and did not carry through with the
dismissal. (Id. at 106:20 to 107:4). Weber returned to work on the following
Monday. (Id. at 106:24 to :25).
Weber recalled having a meeting with William that day, but testified that
William did not then advise him that he was going to fire him. (ECF no. 38-3,
Exh. A at 77:4 to :16, 78:20 to :23). According to Weber, William expressed
concern about his performance and they talked about it, after which Weber
told him that they should be communicating more. (Id. at 77:12 to :14). He
testified: “All I remember was a meeting about me getting involved more with
the day-to-day operations and [William] saying that was a good idea.” (Id. at
78:20 to :23).
ii.

Weber’s Job Performance

According to Weber, no concerns, other than taking too long on the
pump installation, were ever raised to him about his performance or about his
relationship with co-workers. (ECF no. 37-1, Exh. D at 64:7 to 65:15, 78:24 to
79:3); (PSMF

¶

15). William stated that he had spoken to Weber about his work

performance a few different times. (ECF no. 37-1, Exh. B at 106:11 to :16). In
particular, he stated that “[tjhere were comments made as needed as observed
[njot in a threatening manner, just instruction manner.” (Id. at 106:11 to
:12, :15 to :16). Moreover, Donald said that there was friction between Weber
and the other employees. (ECF no. 38-4, Exh. B at 18:23 to 19:5).
Regarding the pump assignment, Weber testified that he had difficulty
completing the task, but said it was because he did not have enough materials.
(Id. at 58:23 to 59:4). He stated that William said he would bring the materials,
but he never got them. (Id. at 59:4 to :8). He also testified that he was never
given a time frame. (Id. at 59:17 to :18). According to Weber, William later
recognized at the September 9, 2014 meeting that there were problems getting

12

materials. (Id. at 60:22 to 61:1). Similarly, according to Weber’s wife, William
acknowledged at the meeting that material was stolen from the supply house
and that was the only reason the job took longer than it should have. (ECF no.
38-7, Exh. Eat 11:1 to :7).
William recalled that Weber mentioned that he did not have enough
fittings. (ECF no. 37-1, Exh. B at 42:1 to :4). However, according to William, he
reminded Weber that the fittings he needed were available within a mile of the
job. (1± at 42:4 to :8). William says that Weber responded that he would go
pick up the fittings himself. (Id. at 42:10 to :11).
As for the August 19 plumbing fittings, Weber recognized that they were
not properly tightened. (Id. at 6 1:24 to 62:4). However, he testified that it was a
result of faulty fittings which had been recalled. (Id. at 61:4 to :8). Weber stated
that William had informed him that there was a recall on the fittings. (Id. at
62:9 to :16).
As for the painting of the drip pan on August 27, 2014, Weber claimed
that he did follow William’s instructions. (Id. at 63:4 to :13). He testified that
the office became overcome with fumes because of the paint that William gave
him to use. (Id. at 63:22 to 64:1). Weber said: “[njo matter where that piece
was, it was emanating fumes continuously.” (Id. at 64:1 to 64:6). According to
William, the paint was not the issue. Rather, the issue was that Weber did not
follow his instructions to place the pan in a ventilated area; that was the
reason, he says, that the shop to fill up with fumes from the paint outgassing.
(ECF no. 37-1, Exh. B at 50:12 to 51:12).
iii.

Finger injury

Weber recognizes that on the date of his finger injury, William told him
that he did not want him to cut the steel on the grinder. (ECF no. 37-1, Exh. D
at 68:14 to :16). However, he maintains that William “never said not to use the
grinder,” (Id. at 70:11 to : 12)(emphasis added), and that when he got injured,
he was only using the grinder to scribe a line, not cut the steel. (Id. at 68:14 to

13

69:19). Weber testified that he was “scribing a line on a straight edge so [he]
could cut it accurately with the Sawzall.” (Id. at 69:1 to :3).
2. Post-Termination
i.

September 9, 2014 meeting

The parties dispute what William said to Weber and his wife
about Weber’s injury during the September 9, 2014 meeting. According to
Weber and his wife, Weber told William that he did not take any time off when
he hurt his hand, to which William responded by pointing to him and saying he
was not happy about it. (ECF no. 38-7, Exh. ED at 16:22 to 17:2); (PSMF
Longo denies this. (DRSMF
ii.

¶ 10).

¶ 10).

Text Messages and Phone calls

According to Weber, William texted him on the night of September 9,
2014 and the following day.’2 (PSMF

13). He claimed that on September 9,

2014, William told him that the schedule was a mess and to return to work on
Thursday. (Id.) He also claimed that William texted him again the next night.
(Id.) According to Weber, William called him on that Friday and told him to
start on Monday. (Id.) William, however, denies this. (DRSMF

¶ 13).

William, on the other hand, claims that he received harassing phone
calls and text messages’3 from Weber. (DSMF

¶ 40). Weber testified that he did

not recall sending text messages or e-mails on September 9, 2014. (ECF no.
37-1, Exh. D at 65:2 1 to 67:5). However, he did testify that he recalled some of
it, “but some of it is not stuff that [he] had said.” (Id. at 67:5 to :10).
II.

Legal Standard

Federal Rule of Civil Procedure 56(a) provides that the court should grant
summary judgment “if the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of

12

September 9,2014 was a Tuesday.

Longo submitted copies of the alleged text messages as Exhibit H. See (ECF no.
Exh. H). Weber disputes the authenticity of the Exhibit. (PSMF ¶ 40). The
37-1,
admissibility of the text messages is not dispositive of the current legal issues before
this Court.
‘3

14

law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.s.
242, 248 (1986); Kreschollelc v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir.
2000). In deciding a motion for summary judgment, a court must construe all
facts and inferences in the light most favorable to the nonmoving party. See
Hayes u. Harvey, 874 F.3d 98, 103 (3d Cir. 2017). The moving party bears the
burden of establishing that no genuine issue of material fact remains. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322—23 (1986). “[Wlith respect to an
issue on which the nonmoving party bears the burden of proof.

.

.

the burden

on the moving party may be discharged by ‘showing’—that is, pointing out to
the district court—that there is an absence of evidence supporting the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus. Co., Ltd. u. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The opposing party must present actual evidence
that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S.
at 248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[U]nsupported allegations

.

.

.

and pleadings are

insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Nonvest Mody., Inc., 243
F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s cases, and on
which that party will bear the burden of proof at trial,

.

.

.

there can be ‘no

genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cuts. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992)
(quoting Celotex, 477 U.S. at 322—23).

15

In deciding a motion for summary judgment, the court’s role is not to
evaluate the evidence and decide the truth of the matter but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
Credibility determinations are the province of the fact finder. Big Apple BMW,
Inc. u. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
The summary judgment standard, however, does not operate in a
vacuum. “[I]n ruling on a motion for summary judgment, the judge must view
the evidence presented through the prism of the substantive evidentiary
burden.” Anderson, 477 U.S. at 254. That “evidentiarv burden” is discussed in
the following sections.
III.

Discussion

Longo moves for summary judgment on Counts I-IV of the Complaint.
(ECF no. 37-3). In Section III.A, infra, I consider Longo’s motion as to Counts I
and II, the ADA and NJLAD discriminatory discharge claims. In Section III.B,
infra, I consider Longo’s motion as to Counts III and IV, fraud and equitable
fraud. In Section III.C, infra, I consider Count V, intentional infliction of
emotional distress.’4 For the reasons discussed below, Longo’s motion will be
granted.
A. Counts I and II- ADA and NJLAD Claims- Discriminatory
Discharge

In Counts I and II of the Complaint, Weber alleges Longo’s termination
of his employment discriminated against him on the basis of a disability, in
violation of both the ADA and the NJLAD. (Compi.

¶1 39-51). The claimed

disability is the finger injury sustained in the accident with the grinder.
Claims for employment discrimination under the ADA and NJLAD are
assessed under the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Alston v. Park Pleasant, Inc., 679
F. App’x 169, 171 (3d Cir. 2017); Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14

Longo’s submissions do not address Count V. Nevertheless, for the sake of
completeness, I will consider Count V, which rests on similar facts.
I4

16

(2002). Accordingly, to succeed on his claims, Weber has the initial burden of
establishing aprimafacie case. Alston, 679 F. App’x at 171. If he is able to
make this showing, the burden of production shifts to Longo to “articulate
some legitimate, non-discriminatory reason” for the termination. McDonnell
Douglas, 411 U.S. at 802. If Longo meets this burden, the burden shifts back
to Weber to show that Longo’s stated reason was pretextual. Willis v. UPMC
Children’s Hasp. of Pittsburgh, 808 F.3d 638, 644-45 (3d Cir. 2015).
I will first address Weber’s ADA claim, and will then address his NJLAD
claim.
1. ADA

The ADA prohibits employers from discriminating “against a qualified
individual on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). The ADA defines a “qualified individual” as “an individual who, with
or without reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires.” Id. at

§

12 111(8).
To establish a prima facie case of employment discrimination under the
ADA, a plaintiff must establish that (1) he is a disabled person within the
meaning of the ADA; (2) he is otherwise qualified to perform the essential
functions of the job, with or without reasonable accommodations by the
employer; and (3) he has suffered an otherwise adverse employment decision as
a result of discrimination. Sulima v. TobyhannaArmy Depot, 602 F.3d 177, 185
(3d Cir. 2010).
Here, Longo’s motion for summary judgment focuses on two elements: (1)
whether Weber is an individual with a disability under the ADA, and (2)
whether Longo’s decision to terminate Weber was based on Weber’s disability.

17

i.

Disability
The ADA’s definition of disability “shall be construed in favor of broad

coverage of individuals.”5 42 U.S.C.

§

12 102(4)(A). See also 29 C.F.R.

§

1630.2Q)(l)(i). Under the ADA, an individual qualifies as “disabled” if he or she
has “(A) a physical or mental impairment’6 that substantially limits one or
more of the major life activities of [an] individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.

§

12 102(1).
Here, Weber alleges that he was disabled for purposes of the ADA under

§

12102(1)(A) (“actual disability”), and in the alternative, under

§

12102(1)(C)

(“regarded as disabled”). Specifically, he contends that he was disabled under
the “actual disability” prong because the injury to his hand substantially
limited his “ability to work in his chosen field.” (Compl. ¶ 41). Alternatively, he
contends that he was disabled under the “regarded as disabled” prong because
“[Longo] regarded him as having such an impairment.” (Id.)

In 2008, the ADA was amended by the ADAAA, effective January 1, 2009. See
Pub. L. No. 110—325, 122 Stat. 3553 (codified at 42 U.S.C. § 12101 etseq.). The
ADAAA “was enacted to clarify that the definition of ‘disability’ should be construed ‘in
favor of broad coverage of individuals ... to the maximum extent permitted.” Matthews
v. Pennsylvania Dept ofCorr., 613 F. Appx 163, 167 (3d Cir. 2015)(quoting42 U.S.C.
§ 12102(4)(A)). See also 29 C.F.R. § 1630.1(c)(4).
15

Longo mistakenly relies on 42 U.S.C. § 12 102(3) for the definition of
“impairment.” (Def. Br. 10 to 11). That section provides a definition of “transitory
impairment”, which only applies to the “regarded as disabled” prong in § 12102(l)(C).
See 42 U.S.C. § 12102(3).
EEOC Regulations, not the ADA, provide the definition of “physical or mental
impairment.” It is defined, in relevant part, as: “[a]ny physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more body
systems, such as neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive, genitourinazy,
immune, circulatory, hemic, lymphatic, skin, and endocrine [.]“ 29 C.F.R. §
1630.2(h) (1).
16

18

a. “Actual disability” prong
The claimed disability consists of the injury to Weber’s finger as a result
of using the grinder. Under the “actual disability” prong, an individual must
establish “a physical or mental impairment that substantially limits one or
more of the major life activities of [an] individual.” 42 U.S.C.

§

12 102(1)(A).

Whether an individual is substantially limited in performing a major life activity
is a question of fact. Williams v. Philadelphia Hous. Auth. Police Dept, 380 F.3d
751, 763 (3d Cir. 2004).
To satisfy the “actual disability” prong, the disability must “substantially
limit[

]

the ability of an individual to perform a major life activity as compared

to most people in the general population.” 29 C.F.R.

§

1630.2(j)(1)(ii). “Major life

activities” include, among other activities, “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C.

§

12 102(2)(A). Although “[a]n

impairment need not prevent, or significantly or severely restrict, the individual
from performing a major life activity in order to be considered substantially
limiting,” “not every impairment will constitute a disabiliw within the meaning
of [the ADA].” 29 C.F.R.

§

1630.2W(1)(ii).

In determining whether a “substantial limitation” exists, courts should
consider “as compared to most people in the general population, the condition
under which the individual performs the major life activity; the manner in
which the individual performs the major life activity; and/or the duration of
time it takes the individual to perform the major life activity, or for which the
individual can perform the major life activity.” Id. at

§

1630.20)(4)(i).

Consideration of facts such as condition, manner, or duration may
include, among other things, consideration of the difficulty, effort,
or time required to perform a major life activity; pain experienced
when performing a major life activity; the length of time a major life
activity can be performed; and/or the way an impairment affects
the operation of a major bodily function. In addition, the non
ameliorative effects of mitigating measures, such as negative side
effects of medication or burdens associated with following a
19

be considered when
may
particular treatment regimen,
determining whether an individuals impairment substantially
limits a major life activity.
Id. at

§

1530.213)(4)(ii).

The claimed limitation here is impairment of Weber’s performance of job
duties in his chosen profession. The United States Supreme Court in Sutton

t.’.

United Air Lines, Inc. considered the meaning of “substantially limits” in the
context of the major life activity of working. 527 U.S. 471, 491—92 (1999).
Relying on EEOC Regulations in existence at the time, it stated: “the statutory
phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they
are unable to work in a broad class of jobs.” Id. at 491. See Keyes v. Catholic
Charities of the Archdiocese of Philadelphia, 415 F. App’x 405, 410 (3d Cir.
201 1)(quoting Sutton, 527 U.S. at 492). However, nine years after Sutton, in
2008, Congress superseded certain aspects of Sutton through its passage of the
ADAAA,17 stating that “the holdings of the Supreme Court in Sutton.

.

.

and its

companion cases have narrowed the broad scope of protection intended to be
afforded by the ADA, thus eliminating protection for many individuals whom
Congress intended to protect.”’8 122 Stat. 3553.
The EEOC Regulations discussing the major life activity of working, and
relied upon by the Sutton Court, are pre-ADAAA and were subsequently
Here, Weber’s termination occurred after the ADAAA’s January 1, 2009 effective
date. I will therefore apply post-ADAAA standards.
17

The ADAA& also superseded certain aspects of the Supreme Court’s decision in
Toyota Motor Manufactuthta Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

18

Moreover, the ADAAk also referred to Sutton in two of its express purpose
provisions. Among other purposes, the ADAAA provides that its purpose is to “reject
and its companion
the requirement enunciated by the Supreme Court in Sutton.
impairment substantially limits a major life activity is to be
cases that whether an
determined with reference to the ameliorative effects of mitigating measures”, and
with regard to coverage under the
“reject the Supreme Courts reasoning in Sutton.
[“regarded as”l prong of the definition of disability and to reinstate the reasoning of the
Supreme Court in School Board of Nassau County ii. Arline, 480 U.S. 273 (1987) which
set forth a broad view of the [regarded as”j prong of the definition of handicap under
the Rehabilitation Act of 1973[.]”122 Stat. 3553.
.

.

20

.

removed from the text of the Regulations, effective May 24, 2011.19 However,
the “broad class of jobs” restriction remains in place notwithstanding the
enactment of the ADAAA and the modified EEOC Regulations. In its Guidance,
the EEOC affirms that part of the doctrine:
In the rare cases where an individual has a need to demonstrate
that an impairment substantially limits him or her in working, the
individual can do so by showing that the impairment substantially
limits his or her ability to perform a class of jobs or broad range of
jobs in various classes as compared to most people having
comparable training, skills, and abilities.
“Substantially Limited in Working,” Appendix to Part 1630- Interpretive
Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630,
App. (2016). Therefore, Weber must demonstrate that he had a physical
impairment that substantially limited him in performing a class ofjobs or
broad range ofjobs in various classes as compared to most people with
comparable training, skills, and abilities.
Thus Longo perhaps shoulders a heavier burden than necessary in
attempting to demonstrate that Weber was not impaired from performing his
own job, let alone a broad range of jobs in various classes, as compared to
most similarly situated people. Longo argues that Weber was not disabled
because he voluntarily returned to work the day after receiving stitches on his
finger, and insisted on working on the same assignment he was working on
before he got injured. (Def. Br. 13 to 14). They emphasize that Weber did not
“say he could not work, perform a function or complain about his finger.” (Id. at
13). They also rely on a May 19, 2015 medical examination of Weber conducted

See “Substantially Limited in Working,” Appendix to Part 1630- Interpretive
Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App.
(2011)[hereinafter “Interpretive Guidance”](stating “[t]he [EEOC] Commission has
removed from the text of the regulations a discussion of the major life activity of
working.”)
‘9

21

by Dr. Wayne J. Kerness, an orthopedic surgeon.2° (Def. Br. 9 to 15)(citing ECF
no. 37-1, Exh. K). Dr. Kerness concluded that Weber had “0% permanent
partial disability” of his left index finger. (Id.) That finding, however, is dated
from almost nine months after Weber’s injury, and its relevance is therefore
limited.
Weber maintains that there is a disputed issue of material fact as to
whether he was “disabled” because according to him, he suffered a 35%
permanent disability to his finger. (P1.

Opp.

at 3)(citing ECF no. 38-5, Exh. C

¶

3, 4). Weber supports this claim by citing to paragraphs 3 and 4 of his answers
to interrogatories. (Id.) Paragraph 3 states, in part: “I suffered a 35%
permanent disability to my finger.” (ECF no. 38-5, Exh. C
states, in part; “[a]t Worker’s Compensation court.
35% permanent disability.” (Id. at

¶

.

.

¶

3). Paragraph 4

it was determined to be a

4). This, however, was not quite an

adjudication of disability. On June 23, 2015, Judge Jean Bogle of the New
Jersey Workers’ Compensation Division approved a settlement between Weber
and the Company (ECF no. 37-1, Exh. M). An Order Approving Settlement was
filed, indicating that Weber was awarded $3,937.50. (Id.) The following
statement is handwritten in the Order under a section titled “Permanent
Disability, % of’: “35%, of left.

.

.

finger for residuals of laceration

.

.

.

stitches

with partial injury of ulnar digital nerve of DIP crease.” (Id.)
Weber is not estopped from seeking ADA relief merely because he
received worker’s compensation benefits. By the same token, however,
“obtaining workers compensation benefits certainly does not mandate a finding
Although not mentioned in his brief, Weber also provided two exhibits which
relate to Weber’s medical condition after he was terminated. Exhibit J is a September
29, 2014 letter from Dr. Jeffrey K. Miller, an orthopedic surgeon, to Dave Becker from
Liberty Mutual, Longo’s worker’s compensation insurance carrier. (ECP no. 37-1, Exh.
J). In the letter, Dr. Miller states that he saw Weber in consultation on that date and
concluded that Weber could resume use of the left hand and was capable of working
without restrictions. (Id.) Exhibit 0 is a March 23, 2015 report from Dr. Miller which
states that Weber “has reached the maximum benefits of medical treatment” and is
capable of working with his left hand without restrictions.
20

22

of disability under the ADA.” Marinelli v. City of Erie, Pa., 216 F.3d 354, 366 n.8
(3d Cir. 2000)(citing Cleueland u. Policy Management Sys. Corp., 526 U.S. 795,
807 (1999)).
I do not find these disputes to be material. Here, there were no
indications, either before or after Weber had his stitches removed, that a 35%
loss of function in Weber’s left index finger (he is right-handed) rose to the revel
of a disability. See (ECF no. 37-1, Exh. K). After receiving stitches, Weber
returned to work the next day at his own insistence. He willingly resumed the
same project that he was working on when he was injured. (ECF no. 37-1, Exh.

o at 28:8 to :11). He continued to work for almost two weeks before the stitches
were removed. During that time, Weber “claim[edj there was no problem, he
couM drive the truck, he could do the different tasks.” (ECF no. 37-1, Exh. C at
31:3 to :5). Donald further testified that Weber “was insistent” and “would drive
the trucks home from the job” on more than one occasion. (Id. at 31:5 to :8).
Donald testified that, on September 5, 2014, sixteen days after Weber’s
injury, he returned from vacation and “found out [Weber] still did not have the
stitches removed, he had no gloves on, he was working with his finger the way
it is exposed, he did not have a bandage or anything on it.” (Id. at 31:16 to :22).
That morning, Weber had his stitches removed, after which he returned to
work.21 (DSMF

¶

30). Later that afternoon, he was terminated. (Id. at

¶1

31)22

There is a dispute of fact as to whether Weber went to get his stitches removed
because Donald urged him to, or because the clinic had informed Weber that it was
the appropriate time to get the stitches removed. According to Donald, he was the one
who told Weber that he had to go get the stitches removed. (ECF no. 37-1, Exh. Cat
3 1:20 to :22). Weber, on the other hand, testified that he lmew he had to return to get
the stitches removed because he was given a verbal estimate by the clinic as to when
to return to get them removed, but he never saw the papenvork. (ECF no. 38-3, Exh. A
at 74:16 to :18). Restated that he “went back when [the stitchesi were ready to come
out.” (Id. at 74:18 to :19). When asked if Donald insisted that Weber go get the stitches
m not sure how it went down.
removed, Weber testified: “[Donald] never insisted
All I know is I had to get my stitches taken out. I don’t recall how I got there. I don’t
recall how it came about, who said what.” (Id. at 75:15 to :22). I do not find this
dispute particularly material to the issues.
21

Temporal proximity, if particularly suggestive in the context of all the facts, may
support an inference of discrimination. See LeBoon v. Lancaster Jewish Cmty. Ctr.

22

23

Weber now says that he suffered “permanent loss of feeling, in and ability
to grip with, his hand.” This, he claims, substantially limits him in performing
the job duties of his chosen profession. (Def. Br. 4). Inability to perform the
duties of one particular job does not equate to a disability under the ADA. And
in any event, Weber himself testified that he continued working after his

injury

because he could do welding with his right hand “and not have to use [his] left
hand.” (ECF no. 38-3, Exh. A at 75:25 to 76:2). To the extent his job
performance may have been slow, Weber himself blames external
circumstances, not the condition of his hand. If Longo fired him for
circumstances beyond his control, it may have acted arbitrarily, but not
discriminatorily.
There is not sufficient evidence to raise a prima facie case that Weber
possessed a physical impairment that substantially limited his ability to work
in September 2014. Accordingly, Longo’s motion for summary judgment on
Weber’s ADA claim under the “actual disability” prong will be granted.
b. “Regarded as disabled” prong
Under the “regarded as disabled” prong of the ADA’s disability definition,
the plaintiff must establish that “he or she has been subjected to an action
prohibited under [the ADA] because of an actual or perceived physical or
mental impairment whether or not the impairment limits or is perceived to limit
a major life activity.”23 42 U.S.C. § 12102(3)(A). See also 29 C.F.R. §
l630.2W(l).
However, the impairment must not be transitory and minor. Id. at §
12102(3)(B). A “transitory impairment” is “an impairment with an actual or
expected duration of 6 months or less.” Id. In determining whether an
Ass’n, 503 F.3d 217, 232 (3d Cir. 2007). Here, however, the termination took place
after the stitches were removed, indicating that the healing, if not complete, was well
underway. Particularly in the context of the other justifications for termination, there
is no legitimate inference of discrimination based on timing alone.

As previously stated in footnote 15 of this opinion, the ADAAA expressly
rejected Sutton’s interpretation of “regarded as having such an impairment.” Congress
thereafter changed the language of the statute.
23

24

impairment is “transitory and minor,” “[t]he relevant inquiry is whether the
actual or perceived impairment on which the employer’s action was based is
objectively ‘transitory and minor,’ not whether the employer claims it
subjectively believed the impairment was transitory’ and minor.” Interpretive
Guidance, at Section 1630.2(1).
Longo argues that Weber’s lacerated finger can “at best” be considered a
transitory impairment. (Def. Br. at 11). Weber responds that Longo has not
proven that his impairment was transitory and minor. (P1.

Opp.

at 5). According

to Weber, Longo has provided no evidence “that the injury was expected to or
did last only 6 months.” (Id. at 6). Weber further contends that William Longo’s
alleged unhappiness about him returning to work rather than taking time off
demonstrates that he was perceived as disabled. (Id.)
I find that Weber has failed to present sufficient evidence from which a
jury could reasonably conclude that he was “regarded as disabled” within the
meaning of the ADA. The evidence shows only that Don and William Longo
regarded Weber as having a temporarily-impaired left index finger. Longo
regarded Weber as having a stitched finger which required him to rest for a few
days or do “light duty,” an accommodation which Weber himself largely
rejected.
Longo may have believed that Weber would temporarily be unable to
complete the full range of his duties; however, Weber presented no evidence to
dispute that Longo saw him as having a temporary, non-severe injury
without permanent or long-term impact. There is no evidence that Weber’s
stitches on the index finger of his non-dominant hand resulted in Longo’s
perceiving Weber as suffering from a severe ongoing impairment. Accordingly,
Longo’s motion for summary judgment on Weber’s ADA claim under the
“regarded as disabled” prong will be granted.24

Given my conclusion that Weber fails to establish a prima fade ADA
discrimination case, I will not, reach the remaining elements, and the next steps of the
McDonnell Douglas framework. In particular, I do not here reach any issues of fact

23

25

2. NJLAD

“The NJLAD prohibits unlawful discrimination against an individual with
respect to terms and conditions of employment because of various traits and
characteristics, including, but not limited to, race, religion, age, sex and
disability.” Davis v. Supervalu, Inc., CIV. 13—4 14 JBS/JS, 2013 WL 1704295, at
*4 (D.N.J. Apr. 19, 2013) (citing N.J.S.A. 10:5—12(a)). In the context of
§
disability, it prohibits “any unlawful discrimination against any person because
such person is or has been at any time disabled or any unlawful employment
practice against such person, unless the nature and extent of the disability
reasonably precludes the performance of the particular employment.” N.J.S.A.

§

10:5—4.1.
“[Tjhe statutory definition a disability is very broad in scope.” Fitzgerald

v. Shore Memi Hosp., 92 F. Supp. 3d 214, 236 (D.N.J. 2015)(citing Clowes v.
Tenninix Intern., Inc., 109 N.J. 575, 538 A.2d 794, 802 (1988)). Unlike the
definition of disability under the “actually disabled” prong of the ADA definition
of disability, NJLAD does not require that a disability restrict any major life
activities to any degree. See Enz-iquez v. West Jersey Health Systems, 342 N.J.
Super. 501, 519, 777 A.2d 365 (App. Div. 2001). A “disability” is defined thus:
malformation, or
infirmity,
sensory disability,
physical or
disfigurement which is caused by bodily injury, birth defect, or
illness including epilepsy and other seizure disorders, and which
shall include, but not be limited to, any degree of paralysis,
amputation, lack of physical coordination, blindness or
visual impairment deafness or hearing impairment muteness or
speech impairment, or physical reliance on a service or guide dog,
wheelchair, or other remedial appliance or device, or any mental,
psychological, or developmental disability, including autism
spectrum disorders, resulting from anatomical, psychological,
prevents
which
conditions
neurological
physiological, or
the typical exercise of any bodily or mental functions or is
demonstrable, medically or psychologically, by accepted clinical or
laboratory diagnostic techniques.
,

,

regarding Longo’s explanation of the employment action, and possible pretext
arguments by Weber.
26

N.J.S.A.

§ 10:5-5(q).

Under the NJLAD, to establish aprimafacie case of disability
discrimination for discriminatory discharge, a plaintiff must demonstrate that:
“(1) [he] is the member of a protected class, specifically that [he] has or is
perceived to have a disability as defined by the NJLAD; (2) [hej was otherwise
qualified to perform the essential functions of the job, with or without
reasonable accommodation by the employer; (3) [he] experienced an adverse
employment action; and (4) the employer sought someone else to perform the
same work, or did fill the position with a similarly-qualified person.” Tourtellotte
v. Eli Lilly & Co., 636 F. App’x 831, 848 (3d Cir. 2016)(footnote omitted)(citing
Victor v. State, 203 N.J. 383, 409 (2010)). “Satisfaction of all four elements of a
prima facie case creates a presumption of discrimination.” Id. (citing Andersen
v. E,cvon Co., U.S.A., 89 N.J. 483, 492-93 (1982)).Once those four primafacie
elements are satisfied, disability discrimination claims under the NJLAD
proceed through the remainder of the three-part McDonnell Douglas framework.
Id. (citing Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002); Andersen, 89 N.J.
at 493).
In the particular context of a disability discrimination claim, the New
Jersey Supreme Court has emphasized that “[d]isability discrimination claims
are different from other kinds of discrimination claims, for several reasons”:
That is, for claims of disability discrimination, the first element of
the prima facie case, that plaintiff is in a protected class, requires
plaintiff to demonstrate that he or she qualifies as an individual
with a disabilibr, or who is perceived as having a disability, as that
has been defined by statute. The second element requires plaintiff
to demonstrate that he or she is qualified to perform the essential
functions of the job, or was performing those essential functions,
either with or without a reasonable accommodation.
Id. at 410 (footnote omitted).
My role here is not to evaluate the credibility of Weber’s evidence but
only to determine whether it genuinely places relevant facts in issue. Anderson,
477 U.S. at 248-49. Viewing the record and drawing all reasonable inferences
27

in the light most favorable to Weber, I find there is a genuine issue of material
fact as to whether Weber’s condition falls within the broad definition of
disability within the meaning of NJLAD. I therefore assume that Weber satisfies
the “disability” element, and could establish the remaining elements of a prima
facie ease of disability discrimination.
I move to the second step, i.e., whether Longo has met their burden of
providing a legitimate, non-discriminatory reason for terminating Weber. The
proffered reasons are that Weber was fired for his reluctance to follow
instructions and his poor work performance. As outlined above, these are
legitimate, nondiscriminatory reasons for firing, and they’ have record support.
I therefore move to the third step. To avoid summary judgment, Weber
“must either (1) offer evidence that casts sufficient doubt upon each of the
legitimate reasons proffered by the defendant so that a faetfinder could
reasonable conclude that each reason was a fabrication, or (2) present evidence
sufficient to support an inference that discrimination was more likely than not
a motivating or determinative cause of the adverse employment action.” Shahin
v. Delaware, 563 F. App’x. 196, 199 (3d Cir. 2014). Notably, “at the pretext
stage, it is not a court’s role to rule on the strength of cause for discharge. The
question is not whether the employer made the best, or even sound, business
decision; it is whether the real reason is discrimination.” Willis v. UPMC
Children’s Hasp. of Pittsburgh, 808 F.3d 638, 647 (3d. Cir. 2015).
In his attempt to satisfy’ that burden, Weber maintains that he had no
negative performance reviews. The alleged comment by William that he was not
happy about Weber’s injury, in Weber’s view, raises a further substantial
question as to whether the real reason for his discharge was his injury. (P1.
Opp. 7, 9). Weber also notes that there were no written reports from his
coworkers expressing dissatisfaction or discomfort with him before his
termination, but only after. (Id. at 7). Finally, Weber asserts that William’s
alleged statement during the September

9t1

28

meeting about lack of materials

weakens Longo’s claims that they were dissatisfied with his performance. (Id. at
7 to 8).
This evidence fails to cast sufficient doubt upon Longo’s reasons for
terminating Weber. No reasonable trier of fact could conclude that the
articulated reasons for Weber’s termination were “so clearly wrong as to imply
discriminatory animus.” Ade v. KidsPeace Corp., 401 F. App’x. 697, 704 (3d
Cir. 2010). Moreover, Weber has also been unable to “point to evidence with
sufficient probative force that a fact finder could conclude by a preponderance
of the evidence that [the plaintiffs disability] was a motivating or determinative
factor in the employment decision.” Simpson v. Kay Jewelers, Div. of Sterling,
Inc., 142 F.3d 639, 645 (3d Cir. 1998). A statement that the employer is not
“happy” about a worker being injured, for example, does not suggest
discrimination.
Accordingly, Longo’s motion for summary judgment on Count II, Weber’s
NJLAD claim, is granted.
B. Counts III and IV- Fraud and Equitable Fraud
In Count III of the Complaint, Weber alleges that Longo engaged in fraud
by advising him and promising him that they would reinstate him to his
position. (Compl. ¶jJ 52-61). In particular, he maintains that on September 9,
2014, Longo advised him that he was reinstated and should report back to
work. (Id. at

¶

53). According to Weber, Longo thereafter “perpetuated the

falsity” by lulling him in two ways: 1) repeatedly pushing back the date for him
to report to work, and 2) assuring him that he still had his job. (Id. at

¶

54).

Weber asserts that the representations made by Longo were material, false and
known to be false at the time of their utterance by Donald and William. (Id. at

¶

56-57). He asserts that he relied upon those representations to his

detriment by believing he had ajob and therefore, failing to begin to search for
alternative employment. (Id. at

¶3f

59-60).

29

To establish fraud under New Jersey law, a plaintiff must prove25 that
the defendants made (1) a material misrepresentation of present or past fact (2)
with knowledge of its falsity (3) with the intention that the other party rely
thereon (4) which resulted in reasonable reliance by plaintiff and (5) which
resulted in damages to the plaintiff. Avaya Inc., RP v. Telecom Labs, Inc., 838
F.3d 354, 388 (3d Cir. 2016) (citing Liberty Mut. Ins. Co. v. Land, 186 N.J. 163,
175 (2006)).
The New Jersey Appellate Division has explained that:
[t]he representation may consist of a present intention to act or not
act in the future. This intention may be derived from
circumstantial evidence such as: the recklessness or implausibility
of the statement in light of later events; showing that the
promisor’s intentions were dependent upon contingencies known
only to the promisor; or simply from evidence indicating that the
But, mere
promisor would not or could not fulfill the promise.
proof of nonperformance does not prove a lack of intent to perform.
.

Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 396, 565 A.2d
1133, 1137 (App. Div. l989)(internal citations omitted). See Fabbro v. DRX
The standard of proof which governs an action for legal fraud in New Jersey is
clear and convincing evidence, not a preponderance of the evidence. The clear and
convincing evidence standard “demands ‘evidence so clear, direct and weighty and
convincing as to enable the factfinder to come to a clear conviction, without hesitancy,
of the precise facts in issue.”’ Id. (quoting N.J Div. of Youth & Family Sews. v. LS., 202
N.J. 145, 168 (2010)). On this record, the distinction would make no difference to the
resolution of the summary judgment motion.
25

In one 1993 case, the Third Circuit held that a plaintiff asserting legal fraud
must prove the elements by a preponderance of the evidence. Lightning Lube, he. v.
Witco Coip., 4 F.3d 1153, 1182—83 (3d Cir. 1993)(citing Batka u. Liberty Mut. Fire Ins.
Co., 704 F.2d 684, 688 (3d Cir.1983)). However, as recognized by former United States
District Judge Stephen Orlofsky in Lithuanian Commerce Corp. u. Sara Lee Hosiery,
214 F. Supp. 2d 453, 457 (D.N.J. 2002), “[tlhe weight of authority supports the
conclusion that claims of legal fraud in New Jersey must be proven by clear and
convincing evidence.”). I agree with former District Judge Orlofsky’s conclusion- the
applicable burden of proof is the clear and convincing standard. See also In re Resorts
Int’l, Inc., 181 F.3d 505, 509 (3d Cir. 1999)(recognizing that the standard of proof for
claims of legal fraud is clear and convincing evidence); Angrisani v. Capital Access
Network, Inc., 175 F. App’x 554, 556 (3d Cir.2006) (stating that the elements of
common law fraud must be proven by clear and convincing evidence).
30

Urgent Care, LLC, 616 F. Appx 485, 488 (3d Cir. 2015)(quoting Notch View

Assocs. u. Smith, 260 N.J.Super. 190, 615 A.2d 676, 682 (Ch. Div. 1992))
(recognizing that

“

‘[u]nder New Jersey law, statements as to future events,

expectations, or intended acts, do not constitute misrepresentations despite
their falsity, if the statements were not made with the intent to deceive,’ and
‘[m]ere nonperformance is insufficient to show that the promisor had no
intention of performing.”).
Longo’s summary judgment arguments do not focus on the elements of
fraud. Rather, they emphasize that Weber was an at-will employee who was
given severance pay for two weeks. (Def. Br. 21 to 23). The implication seems to
be that Weber was not deprived of anything to which he was entitled. Longo’s
payment of severance, though relevant, does not in itself wholly erase the
possibility of fraud. Still, Longo’s arguments do implicate the elements of
reliance and damages. Even assuming that Longo strung Weber along briefly
before actually firing him, they say, “[t]here was no hardship that [Weber]
endured because of the promise to hire him back on a trial basis” and “[tihere
is no evidence in the record that he passed up or declined other employment as
a result of any act or omission of Longo].” (Id. at 23).26 I agree. Even assuming
that Longo was stringing Weber along, the period of time involved encompassed
several days in September, during which he remained on the payroll, and there
is no showing whatever that Weber sacrificed any employment or other
opportunity during that period. I will therefore grant Longo’s motion for
summary judgment on Count III.
In Count IV of the Complaint, Weber alleges that Longo engaged in
equitable fraud by telling him that he would receive higher pay and better
benefits, and would “have a bright future with them.” (Ic?. at

¶ 64). Weber

maintains that Longo’s representations were false because “they knew or

should have known that they would terminate [Weber’s] employment if he were
Indeed, there is no evidence that William Longo’s alleged statements regarding
possible return dates were false when made, other than the fact of subsequent non
performance, which, standing alone, would not suffice.
26

31

to, e.g., complain about unsafe work environiments] or suffer workplace
injury.” (Id. at ¶ 66). He further maintains that he reasonably relied upon
Longo’s material representations to his detriment and that the representations
were made with the intention that he rely on them, whether or not Longo knew
that they were false at the time of their utterance. (Id. at ‘jI 68-69). The
proffered evidence, however, does not back up these conclusory allegations.
To establish equitable fraud under New Jersey law, a plaintiff need not
establish scienter; “knowledge of the falsity and an intention to obtain an
undue advantage therefrom,’ is not required.” Phoenix, 628 F. Appx at 827
(quoting Jewish Cntr. of Sussex Cnty. v Whale, 86 N.J. 619, 432 A.2d 521, 524
(1981)). Plaintiff must, however, allege and prove the other elements of legal
fraud. Widh

p.

Telcordia Techs., Inc., 247 F. App’x 366, 369 (3d Cir. 2007).

Here, the elements of reliance and damages, as in the case of legal fraud,
are missing from the evidence. In addition, Count IV improperly seeks
monetary damages. (Compl. ¶ 71). A claim in equitable fraud allows only
equitable relief, not money damages. Foont-Freedenfeld Corp. v. Electro
Protective Corp., 126 N.J. Super. 254, 257, 314 A.2d 69 (App. Div. 1973), affd,
64 N.J. 197 (1974) (per curiam) (stating that “in an action in which plaintiff
relies upon equitable fraud, the only relief that may be sought is equitable
relief, such as rescission or reformation of an agreement, and not monetary
damages only.”). See also Jewish Cntr., 86 N.J. at 624—25. Accordingly, I grant
summary judgment and dismiss Count IV as well.
C. Count V. Intentional Infliction of Emotional Distress

The parties do not specifically address Count V, intentional infliction of
emotional distress. Count V alleges that Weber suffered depression, anxiety,
and sleep loss as a result of 1) his unlawful termination, 2) Longo repeatedly
telling him that he still had his job despite contacting an attorney to represent
them and terminate Longo, and 3) Longo’s decision to contact the police about
his alleged harassment. (Compl. at ¶‘ 72-92). Weber maintains that Longo’s

32

actions “were outrageous and extreme, and taken with the aim or assurance of
causing [him] severe emotional distress.” (Id. at ¶ 89).
To establish a claim for intentional infliction of emotional distress, a
plaintiff must establish: (1) that Defendants acted intentionally or recklessly,
both in doing the act and in producing emotional distress; (2) that Defendants’
conduct was so outrageous in character and extreme in degree as to go beyond
all bounds of decency; (3) that Defendants’ actions were the proximate cause of
the emotional distress; and (4) that the emotional distress suffered was so
severe that no reasonable person could be expected to endure it. Buckley v.
Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988). “[Ujnder New Jersey law,
intentional infliction of emotional distress comprehends conduct ‘so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.”’ Subbe—Hirt v. Baccigalupi, 94 F.3d 111, 114 (3d Cir. 1996)
(quoting Restatement (Second) of Torts § 46 comment d).
The alleged conduct does not rise to the extreme level required for
proving a claim of intentional infliction of emotional distress. “[lit is extremely
rare to find conduct in the employment context that will rise to the level of
outrageousness necessary to provide a basis for recovery for the tort of
intentional infliction of emotional distress.” Cox v. Keystone Carbon Co., 861
F.2d 390, 395 (3d Cir.1988), ced. denied, 498 U.S. 811, 111 S.Ct. 47, 112
L.Ed,2d 23 (1990). The United States Court of Appeals for the Third Circuit has
further recognized that “‘while loss of employment is unfortunate and
unquestionably causes hardship, often severe, it is a common event’ and
cannot provide a basis for recovery for infliction of emotional distress.” Id. at
395 (quoting Brieck v. Harbison— Walker Refractories, 624 F.Supp. 363, 367
(W.D. Pa.1985), affd. in relevant part, 822 F.2d 52 (3d Cir. 1987)). See also
Gnffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 766 A.2d 292, 297
9 (D.N.J.
(2001); accord Catullo v. Liberty Mut. Group, Inc., 2012 WL 762163 at
*4 (D.N.J. Feb. 20,
Mar. 6, 2012); Jewett v. IDT Corp., 2008 WL 508486 at

33

2008). Any waffling about whether to fire Weber was short-lived; Weber
remained on the payroll while it occurred; and there is no showing that it
caused him more suffering than immediate termination would have. The
harassment claim, for all that appears here, never went anywhere, and it was
based on actual events (i.e., the hard hat incident in the workplace). Nothing
about these matters exceeds the bounds of civilized conduct.
Moreover, Weber’s intentional infliction of emotional distress claim rests,
in part, on allegations of discrimination that have now been rejected. See
Section III.A, supra. A plaintiff may not pursue such a claim “to circumvent the
required elements of or defenses applicable to another cause of action that
directly governs a particular form of conduct.” Griffin, 337 N.J. Super. at 24,
766 A.2d at 297.
I therefore grant summary judgment and dismiss Count V.
IV.

Conclusion

For the foregoing reasons, Longo’s motion for summary judgment (ECF
no. 37) is granted as to the entire complaint.
An Order will be entered in accordance with this Opinion.
Dated: March 2, 2018

Hon. Kevin McNulty
United States District Judge

34