Potente v. County of Hudson

Citation900 A.2d 787,187 N.J. 103
PartiesJoseph POTENTE, Plaintiff-Respondent, v. COUNTY OF HUDSON, Defendant-Appellant, and Carmen Messano, individually and in his capacity as Prosecutor for Hudson County; Robert B. Martin, individually and in his capacity as Chief of Investigations for the Office of the Hudson County Prosecutor, Defendants.
Decision Date06 June 2006
CourtUnited States State Supreme Court (New Jersey)

Ralph J. Lamparello, Secaucus, argued the cause for appellant (Chasan Leyner & Lamparello, attorneys; Cindy Nan Vogelman, of counsel; John L. Shahdanian II, on the brief).

Bruce D. Leder, Kenilworth, argued the cause for respondent (Cohen, Leder, Montalbano & Grossman, attorneys).

Justice LONG delivered the opinion of the Court.

In 1994, plaintiff, Joseph Potente, after undergoing shoulder surgery, was terminated from his position at the Hudson County Prosecutor's Office for excessive absence without permission. Plaintiff filed a complaint in federal court against the County of Hudson, the Hudson County Prosecutor, and his supervisor. After plaintiff's federal claim was dismissed and pendant jurisdiction was denied, plaintiff filed a Law Against Discrimination (LAD) complaint, N.J.S.A. 10:5-1 to -49, in state court against the County of Hudson. The trial judge granted a directed verdict on liability in plaintiff's favor and a jury returned an award of damages. In addition, the trial judge awarded pre- and post-judgment interest and counsel fees.

We have been asked to determine whether a directed verdict on the subject of failure to accommodate was properly entered and whether pre-judgment interest is a remedy cognizable under the LAD. The Appellate Division answered those questions affirmatively. Although we agree that pre-judgment interest is available under the LAD and affirm the Appellate Division's judgment in that respect, because we have concluded that the directed verdict was improvidently granted, we now reverse and remand the matter for a new trial.


Plaintiff was hired by the Hudson County Prosecutor's Office as an investigator in 1982 and served continuously in that position until December 1993, when, on duty, he was injured in an automobile accident.

Plaintiff received a worker's compensation award during his recovery and was eventually cleared to work six hours a day, accompanied by two hours of daily therapy. On May 4, 1994, plaintiff returned to work. Because plaintiff's neck and shoulder injuries rendered him unable to qualify to use a weapon, he was assigned to the radio room for three weeks, where he answered phones and talked on the radio. Subsequently, plaintiff was transferred to full-time duty in the domestic violence section. That position required no field work; rather, it involved interviewing domestic violence victims at the Prosecutor's Office. Plaintiff continued to work in that section until September 20, 1994, when he took sick leave to undergo shoulder surgery.

Plaintiff expected his recovery to last six to eight weeks. Despite the fact that the injury was work related, plaintiff did not seek to reopen his worker's compensation case; rather, he used his accrued compensatory and sick time to obtain pay during the recovery period.1 On November 10, 1994, plaintiff's sick and vacation time ran out and he thereafter applied for state disability benefits. Plaintiff also testified that throughout his recovery, he requested positions involving light duty and was repeatedly told that the Prosecutor's Office did not have such positions. To his knowledge, he could "only come back at 100 percent or not all."

On November 22, 1994, plaintiff sent a memorandum to James Hoppes, his direct supervisor, requesting a leave of absence due to the shoulder surgery and continuing therapy. On November 23, Hoppes wrote back to plaintiff, stating that a "more detailed account of your injuries and subsequent treatment" must be provided by November 28. In response, on November 28, plaintiff sent a memorandum to Hoppes and Robert Martin, his ultimate supervisor, explaining his injury and suggesting that his treating physician could be contacted for further clarification.

On November 29, 1994, Hoppes hand-delivered a letter from Martin to plaintiff, denying plaintiff's request for leave because it was "unspecified." The letter instructed plaintiff to report to work on November 30 and stated that "[f]ailure to comply with this directive will result in disciplinary action." Upon receipt of the letter on November 29, plaintiff contacted several individuals to inquire about the letter. Those individuals included Hoppes; Kevin Wilder, plaintiff's union president; and John Bigger, an investigator involved with the union.

It is here that the parties' versions of the events diverge. The County of Hudson asserts that Bigger contacted Martin on November 29 to arrange a meeting on November 30. According to Bigger, the purpose of that meeting was to "get [plaintiff] in there and we'll sit down and see what kind of accommodations we can reach here ... and that may include going after another leave of absence." Bigger told Martin that "[w]e'll walk [plaintiff] through it." Martin stated that Bigger's suggestion was "reasonable," and agreed to attend the meeting, but emphasized that plaintiff had to report to work on November 30.

Bigger then telephoned plaintiff and explained his conversation with Martin. Wilder also informed plaintiff about the meeting. Bigger told plaintiff that

[y]ou're going to have to come in and we're going to try to work out some accommodations here because your days have run out and at least you can get a pay check out of this deal. You know, come in and we'll find something or if there's going to be a point where you can't—you know, if it's something that you can't do anything maybe, we'll try to work to get another leave of absence, you know, we'll try another, you know, a route there.

According to the County of Hudson, the meeting was to have covered the following topics: (1) potential accommodations, including a leave of absence; (2) plaintiff's medical condition; (3) making arrangements so that plaintiff could "fill out the paperwork in the handbook to apply appropriately for unpaid leave of absence"; (4) the fact that plaintiff had exhausted all of his vacation and sick time; (5) the fact that plaintiff's earlier requests for leave were not specific; and (6) how to classify plaintiff.

Additionally, on November 29, Bigger spoke to the union's labor attorney, who recommended that plaintiff return to work. Bigger then relayed that recommendation to plaintiff by telephone. Plaintiff responded that he was unable to operate the stick shift in his car and could not afford a taxi or bus. Bigger offered to drive plaintiff to work, and plaintiff agreed. Bigger then informed Wilder and Martin that the meeting was on for the following morning. Around 11:00 p.m. that evening, however, plaintiff called Bigger and informed him that he was not going to come in for the meeting because his own counsel had advised him that coming in would "mess up his disability case."

According to the County of Hudson, Bigger called plaintiff on the morning of the meeting to tell him that it was not too late to come in. Plaintiff repeated that his counsel had advised him not to do so. Plaintiff also spoke to Hoppes by telephone that day and said that he was going to take sick time. According to Hoppes, when he informed plaintiff that his sick time had run out, plaintiff said that he understood that he was absent without authorization.

Plaintiff's version of the facts regarding the November 30 meeting is substantially different. He denies that any meeting was ever discussed, let alone scheduled. In support of his position, plaintiff notes that at Martin's deposition, Martin did not mention the meeting in response to a question asking about the importance of the November 30 deadline. In addition, plaintiff points to the absence of documentary evidence about the meeting.

At some point on November 30, instead of reporting to work, plaintiff faxed a letter to the County of Hudson requesting family leave until December 15, 1994. In a response dated November 30, Martin informed plaintiff that he did not qualify under the Federal Family and Medical Leave Act or the New Jersey Family Leave Act. Plaintiff testified that although the letter reiterated the requirement that he report to work on November 30, he did not receive it until December 1.

Following the November 30 deadline, there appears to have been no communication between plaintiff and the County of Hudson until December 7. On December 7, Hoppes hand-delivered a letter to plaintiff, informing him that he had been terminated because he was "absent without leave or permission from November 18, 1994."

In December 1996, plaintiff filed a complaint in federal court against the County of Hudson, the Hudson County Prosecutor, and Martin. The complaint alleged causes of action under 42 U.S.C. § 1983 and state law, including claims under the LAD. The federal district court dismissed plaintiff's federal claims on the merits and refused to exercise pendent jurisdiction over plaintiff's remaining state law claims. In December 1999, plaintiff filed a LAD complaint in state court.

The case was eventually tried in January and February 2003. Plaintiff withdrew his claim against the Hudson County Prosecutor and the claim against Martin was ultimately dismissed. Thus, the sole remaining defendant was the County of Hudson (defendant). At the conclusion of defendant's case, the trial judge considered cross-motions for a directed verdict and granted plaintiff's motion with respect to liability based on failure to accommodate. The case was then submitted to the jury for a determination of damages. The jury awarded plaintiff $200,000 in back pay and $50,000 in pain and suffering. The trial judge also granted plaintiff attorney's fees, as well as pre- and post-judgment interest....

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    • June 11, 2019
    ...fide occupational qualifications set forth in federal law that impact on reasonable accommodation analysis); Potente [v. Cty. of Hudson, 187 N.J. 103, 111, 900 A.2d 787 (2006) ] (concluding that employee may not raise LAD claim if he or she has refused to engage in interactive dialogue resp......
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