808 A.2d 863 (N.J.Super.A.D. 2002), Soules v. Mount Holiness Memorial Park

Citation808 A.2d 863, 354 N.J.Super. 569
Party NameArthur SOULES, Plaintiff-Appellant, v. MOUNT HOLINESS MEMORIAL PARK and Gene Dallago, Defendants-Respondents.
Case DateNovember 06, 2002
CourtSuperior Court of New Jersey

Page 863

808 A.2d 863 (N.J.Super.A.D. 2002)

354 N.J.Super. 569

Arthur SOULES, Plaintiff-Appellant,

v.

MOUNT HOLINESS MEMORIAL PARK and Gene Dallago, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

November 6, 2002.

Argued Oct. 23, 2002.

Page 864

[354 N.J.Super. 571] Matthew R. Grabell, Hackensack, argued the cause for appellant (Grabell & Associates, attorneys; Mr. Grabell, on the brief).

Frederick C. Mezey, Freehold, argued the cause for respondents (Mezey & Mezey, attorneys; Mr. Mezey, on the brief).

Donna Arons, Trenton, argued the cause for amicus curiae New Jersey Division on Civil Rights (Ms. Arons, Deputy Attorney General, on the brief).

Before Judges CONLEY, NEWMAN and CARCHMAN.

OPINION

CONLEY, P.J.A.D.

This is plaintiff's appeal from a grant of summary judgment in favor of the defendants. Plaintiff, an employee of defendant, Mt. Holiness Memorial Park Organization (Park), developed cancer requiring the removal of a kidney, "five inches around it, the adrenals, the lymphs and one rib." He was absent from work for over eight months. Before plaintiff was cleared to return to work, Park hired another employee to replace him. Plaintiff claims that he was told his position would remain open until he recovered. Park asserted that the position was held open as long as possible, and when plaintiff failed to return, it had no other choice but to hire a new employee. This defense, of course, raises an issue of whether Park reasonably accommodated plaintiff's condition. Viscik v. Fowler Equipment Co., Inc., 173 N.J. 1, 19-20, 800A.2d 826 (2002) (reasonable accommodation is an issue in a handicap discrimination case "in which an employer, rather than defending on the grounds that the employee was terminated for legitimate, non-discriminatory reasons, proffers the employee's inability to perform the job as a defense.").

However, the motion judge granted Park summary judgment in favor of the defendant based upon his conclusion that plaintiff had failed to prove the first prong of his prima facie burden, i.e., that he was "handicapped" within the meaning of the Law Against [354 N.J.Super. 572] Discrimination (LAD). He based this conclusion upon his finding that plaintiff's handicap was temporary, focusing upon the eight month recuperative period. We reverse.

The facts viewed most favorably for plaintiff, as we must, Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 535-36, 666 A.2d 146 (1995), reveal the following. Prior to his replacement in October 1998, plaintiff had worked for Park since he was twelve or thirteen years old, some thirty-three years. It is undisputed that throughout this time, during which he first worked as a general laborer and then a machine operator, plaintiff was considered as satisfactorily performing his job.

On February 14, 1998, plaintiff was diagnosed with kidney cancer. Several days later, he underwent an operation during which the kidney, adrenal glands, lymph nodes and one rib were removed. Though disputed by Park, plaintiff asserts that while he was recuperating from his cancer surgery he had several conversations with Park's then president who was also in charge of the day-to-day operations of the

Page 865

cemetery. During these conversations, he was told not to worry about his job and that as soon as he was able to come back to work, his job would be waiting for him.

Plaintiff remained on the payroll of Park for some ten or eleven weeks from February 15, 1998, and received a full salary during that time. In April 1998, he filed a claim for temporary disability with the New Jersey Department of Labor claiming that he would be disabled from February 15, 1998, until August 24, 1998, later revised to October 26, 1998. He received disability payments until October 26, 1998, when his doctor authorized his return to work. However, unbeknownst to plaintiff, his position was filled with a full-time employee on October 13, 1998.

According to plaintiff and his son, when plaintiff called...

To continue reading

Request your trial
14 practice notes
  • Sharkey v. Verizon New Jersey Inc., 122214 NJDC, 14-2788 (JLL)
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Courts. 3th Circuit. District of New Jersey
    • December 22, 2014
    ...that the accommodation would impose an undue hardship on the operation of its business." Soules v. Mt. Holiness Memorial Park, 354 N.J.Super. 569, 577, 808 A.2d 863 (App.Div.2002) (internal citations omitted). Moreover, In order to establish a prima facie case for allegations of dispar......
  • Smith v. Chestnut Square Apartments, LLC, 122109 NJSUP, A-1855-08T3
    • United States
    • New Jersey Superior Court of New Jersey
    • December 21, 2009
    ...could perform the essential functions of the job with or without reasonable accommodation. Soules v. Mount Holiness Mem'l Park, 354 N.J.Super. 569, 576 (App. Div. 2002); Svarnas v. AT & T Commun'ns, 326 N.J.Super. 59, 74-76 (App. Div. l999). In Tynan v. Vicinage l3 of the Superior Court......
  • 364 F.3d 135 (3rd Cir. 2004), 03-2257, Conoshenti v. Public Service Elec. & Gas Co.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (3rd Circuit)
    • April 13, 2004
    ...correctly ruled that Conoshenti's temporary disability constituted a handicap under NJLAD. See Soules v. Mount Holiness Mem. Park, 354 N.J.Super. 569, 808 A.2d 863, 865-66 (2002) (holding that a "temporary inability to work while recuperating from surgery or injury is a handicap" ......
  • Sharkey v. Verizon New Jersey Inc., 041615 NJDC, 14-2788(JLL) (JAD)
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Courts. 3th Circuit. District of New Jersey
    • April 16, 2015
    ...that the accommodation would impose an undue hardship on the operation of its business." Soules v. Mt. Holiness Memorial Park, 354 N.J.Super. 569, 577, 808 A.2d 863 (App. Div. 2002) (internal citations omitted). Moreover, in order to establish a prima facie case for allegations of disp......
  • Request a trial to view additional results
14 cases
  • Sharkey v. Verizon New Jersey Inc., 122214 NJDC, 14-2788 (JLL)
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Courts. 3th Circuit. District of New Jersey
    • December 22, 2014
    ...that the accommodation would impose an undue hardship on the operation of its business." Soules v. Mt. Holiness Memorial Park, 354 N.J.Super. 569, 577, 808 A.2d 863 (App.Div.2002) (internal citations omitted). Moreover, In order to establish a prima facie case for allegations of dispar......
  • Sharkey v. Verizon New Jersey Inc., 041615 NJDC, 14-2788(JLL) (JAD)
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Courts. 3th Circuit. District of New Jersey
    • April 16, 2015
    ...that the accommodation would impose an undue hardship on the operation of its business." Soules v. Mt. Holiness Memorial Park, 354 N.J.Super. 569, 577, 808 A.2d 863 (App. Div. 2002) (internal citations omitted). Moreover, in order to establish a prima facie case for allegations of disp......
  • Sharkey v. Verizon New Jersey Inc., 041315 NJDC, 14-2788 (JLL) (JAD)
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Courts. 3th Circuit. District of New Jersey
    • April 13, 2015
    ...that the accommodation would impose an undue hardship on the operation of its business.” Soules v. Mt. Holiness Memorial Park, 354 N.J.Super. 569, 577, 808 A.2d 863 (App. Div. 2002) (internal citations omitted). Moreover, in order to establish a prima facie case for allegations of disparate......
  • Smith v. Chestnut Square Apartments, LLC, 122109 NJSUP, A-1855-08T3
    • United States
    • New Jersey Superior Court of New Jersey
    • December 21, 2009
    ...could perform the essential functions of the job with or without reasonable accommodation. Soules v. Mount Holiness Mem'l Park, 354 N.J.Super. 569, 576 (App. Div. 2002); Svarnas v. AT & T Commun'ns, 326 N.J.Super. 59, 74-76 (App. Div. l999). In Tynan v. Vicinage l3 of the Superior Court......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT