Dickson v. Cmty. Bus Lines, Inc.

• Decision Date: 04 April 2019
• Docket Number: DOCKET NO. A-3857-17T3
• Citation: 458 N.J.Super. 522,206 A.3d 429
• Parties: Corey DICKSON, Plaintiff-Appellant, v. COMMUNITY BUS LINES, INC., d/b/a Coach USA, Charlie Diggs, Rudy Bhagwandas, and Dr. Jeffrey Liva, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

458 N.J.Super. 522

206 A.3d 429

Corey DICKSON, Plaintiff-Appellant,

v.COMMUNITY BUS LINES, INC., d/b/a Coach USA, Charlie Diggs, Rudy Bhagwandas, and Dr. Jeffrey Liva, Defendants-Respondents.

DOCKET NO. A-3857-17T3

Superior Court of New Jersey, Appellate Division.

Argued March 25, 2019

Decided April 4, 2019

Mark A. Mulick, Montclair, argued the cause for appellant.

Christina A. Stoneburner, Morristown, argued the cause for respondents (Fox Rothschild LLP, attorneys; Christina A. Stoneburner, of counsel and on the brief; Asad Rizvi, on the brief).

Before Judges Sabatino, Haas and Mitterhoff.

The opinion of the court was delivered by

HAAS, J.A.D.

Plaintiff Corey Dickson appeals from the Law Division's April 30, 2018 order granting summary judgment to defendants and dismissing his complaint alleging that defendants violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by subjecting him to a hostile work environment.¹ We affirm. We do so because a perceived disability claim based on obesity must be grounded upon direct or circumstantial evidence that defendants perceived the plaintiff to be disabled due to a medical condition that caused him or her to be overweight. Such proof is absent from this record and, accordingly, summary judgment was correctly granted.

We begin by reciting the essential facts concerning plaintiff's hostile work environment claim, which is the only argument he continues to press on appeal, and view these facts in the light most favorable to plaintiff, the non-moving party. Polzo v. Cty. of Essex, 209 N.J. 51, 56 n.1, 35 A.3d 653 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 666 A.2d 146 (1995) ).

Plaintiff began working as a bus driver for defendant Community Bus Lines, Inc. (Community) in 2005. In order to maintain his employment as a bus driver, plaintiff must hold a valid Commercial Driver's License (CDL). The United States Department of Transportation (DOT) requires all CDL holders to pass a medical examination every two years and obtain a medical certification card verifying that they are fit to drive.

During the ten years he worked for Community as an active driver, plaintiff weighed between 500 and 600 pounds. He passed his required medical examinations during this period, and Community recognized his accomplishments on the job by giving him several awards.

As a bus driver, plaintiff was required to inspect his bus before beginning his route, and inspect it again at the conclusion of his work day. Combined, these tasks took approximately forty minutes to complete. Plaintiff drove his bus during the remainder of his shift. At the end of the day, plaintiff sometimes spent time in Community's breakroom talking and joking with the other drivers. Plaintiff testified at his deposition that the drivers were his friends. He also only had contact with his supervisors when he was at the Community depot.

Plaintiff testified that the other drivers and his supervisors regularly made rude comments to him about his weight. Among other things, they told plaintiff that he was "fat," "must weigh a thousand pounds," would likely eat all the food out of the snack machines, was "as big as a bus" or "a 747," and might break chairs if he sat on them.

At the same time, however, plaintiff conceded that he made jokes with, and teased, other employees at the depot. He referred to himself as "fat boy" in the presence of his coworkers, and also admitted that he called himself "fat" on his Facebook page, where he had "friended" some of the other drivers so that they could view and comment on his posts.

Although plaintiff was a union member, and alleged that he complained to his supervisors about the remarks he heard at work, he presented no documentation to support this assertion.

Plaintiff's supervisors denied ever hearing any comments of this nature, and stated that plaintiff never complained about anything during his employment. The supervisors also testified that no one at Community viewed plaintiff as disabled; instead, he was a valued employee and a good driver.

In April 2015, Dr. Maureen Kelleher² conducted plaintiff's DOT medical examination. Dr. Kelleher found that plaintiff could not bend over to take off his shoes, and had "a massive pedal edema and venous stasis." The doctor temporarily disqualified plaintiff from driving a bus, pending further testing. She opined that plaintiff needed a sleep apnea study, a mobility test, and an echocardiogram before he could be cleared to resume driving. Dr. Kelleher testified that she did not determine whether plaintiff was disabled, and only found that based on DOT's standards, and the criteria provided by the Federal Motor Carrier Safety Administration, additional testing was required before plaintiff could be certified to drive a bus.

Dr. Kelleher was not plaintiff's primary care physician and, therefore, she did not write a prescription ordering these tests for plaintiff. Although plaintiff had health insurance through Community, he never arranged to complete the required tests. As a result, plaintiff's supervisors advised him that he had been placed "out of service" until he was tested and received a medical certification card.

The supervisors then referred plaintiff for a second opinion with Dr. Jeffrey Liva, a board-certified physician in preventative medicine with a subspecialty in occupational medicine. Confirming Dr. Kelleher's conclusions, Dr. Liva found that plaintiff needed further testing before a medical certification card could be issued. Dr. Liva stated that the swelling in plaintiff's legs could be an indicator of heart disease, and that his weight might aggravate health conditions such as sleep apnea. Like Dr. Kelleher, Dr. Liva did not determine that plaintiff was disabled and, because he was not plaintiff's primary care doctor, he did not write a prescription for the testing. Plaintiff's own personal physician agreed with Dr. Kelleher and Dr. Liva about the need for testing, but plaintiff did not pursue it.

As a result, plaintiff remained on a leave of absence from Community.³ In February 2016, plaintiff filed his complaint against defendants. In July 2017, defendants noticed plaintiff for an Independent Medical Examination as part of this litigation, and he was diagnosed with obstructive sleep apnea. Two days later, he suffered a stroke. By the time the matter was ripe for consideration of defendants' motion for summary judgment in April 2018, plaintiff's cardiologist had diagnosed him with peripheral edema, obstructive sleep apnea, morbid obesity, chronic congestive heart failure, myocardial systolic dysfunction, and other conditions.

After oral argument on defendants' motion for summary judgment, Judge Caposela rendered a comprehensive written decision, and rejected plaintiff's claim that his obesity constituted a disability under the LAD, or that defendants had subjected him to a hostile work environment based upon his weight. Relying on our decision in Schiavo v. Marina District Developmental Co., LLC, the judge observed that "there is no protected class [under the LAD] based solely on one's weight." 442 N.J. Super. 346, 375, 123 A.3d 272 (App. Div. 2015). Instead, as the Supreme Court held in Viscik v. Fowler Equipment Co., a plaintiff's obesity will only constitute a disability under the LAD if the plaintiff demonstrates that this condition is "caused by bodily injury, birth defect[,] or illness." 173 N.J. 1, 17, 800 A.2d 826 (2002) (quoting N.J.S.A. 10:5-5(q) ). The Court also noted that a plaintiff must ordinarily present expert medical evidence in order to prove the required element of causation. Id. at 16, 800 A.2d 826.

Here, the judge found that plaintiff was undoubtedly obese. However, plaintiff did not establish, through the introduction of expert medical testimony or otherwise, that his condition was caused by bodily injury, birth defect, or illness, such as the genetic metabolic condition that caused the plaintiff's obesity in Viscik. Id. at 17, 800 A.2d 826. As the judge explained:

There is no evidence in the record that [p]laintiff's weight condition in 2015 had an underlying medical basis. Plaintiff testified that he had never been diagnosed with any medical condition that caused him to gain weight or been prescribed a medication which caused weight gain. He therefore does not have a prima facie disability discrimination claim under the [ ]LAD.

The judge also found that contrary to plaintiff's claim, defendants never perceived plaintiff as "disabled." Instead, Community presented several awards to plaintiff over his ten-year tenure with the company; he drove a regular route; and the employer attempted to assist him in fulfilling his DOT medical requirements by arranging for him to see another doctor for a second opinion after he failed his first examination. The judge stated:

[T]here is no credible evidence in the record supporting a claim that ... [d]efendants perceived [p]laintiff to be disabled. Both [of his supervisors] testified that they never perceived [p]laintiff to be disabled. Both Doctors Liva and Kelleher testified that their medical diagnos[e]s do not include making a determination of disability. Plaintiff's reason for submitting to a medical examination in April 2015 was for him, as a bus driver, to undergo regular medical examinations to maintain a CDL pursuant to [DOT] rules. Plaintiff claims he was subjected to a perceived disability discrimination due to his obesity, however, "conclusory and self-serving assertions by one of the parties are insufficient to overcome" summary judgment motions. Puder v. Buechel, 183 N.J. 428, 440-41, 874 A.2d 534 (2005).

Even assuming that plaintiff had established that he was disabled within the intendment of the LAD, the judge found no merit to plaintiff's assertion that he was subjected to a hostile work environment in violation of the LAD. The judge noted that

[t]o make a prima facie case of hostile work environment[,] a plaintiff must prove that th

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