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McLaughlin & Nardi, LLC Attorneys Successfully Appeal to Reinstate an Employee’s Claims for Retaliation and Discrimination


On March 28, 2018, the New Jersey Appellate Division granted an appeal and reversed a trial court employment law decision which had granted summary judgment in favor of the defendant employer the New Jersey Department of Human Services and against the plaintiff employee, dismissing all of his claims. In the case of Jerry Dean Rivera v. State of New Jersey Department of Human Services. The case was argued by Maurice W. McLaughlin, Esq. and Maurice W. McLaughlin, Esq. and Robert Chewning, Esq. wrote the briefs.

The case involved an employee who filed a complaint against his employer for discriminating against him based on his “disabilities,” national origin, and race; retaliating against him for his reports of unfair and discriminatory labor practices; and creating a hostile work environment in violation of New Jersey’s Law Against Discrimination (“LAD”), New Jersey’s Conscientious Employee Protection Act (“CEPA”), and the common law under Pierce v. Ortho Pharmaceutical Corp.

As with most discrimination cases, one of the major issues was determining whether the employee was performing the essential functions of his job. This issue required determining whether regular attendance was an essential function of the employee’s job, and, if so, what level was regained and whether the employer was required to accommodate the employee’s absences. The Appellate Division concluded that the employee should be given the opportunity to establish that he was able to perform all of his essential functions with a reasonable accommodation. Because no discovery was produced by the employer relating to whether it could have accommodated the employee’s absences either through a leave of absence or modified work schedule – combined with the fact that the employer’s overall size and other available positions – the employee was denied a fair day in court.

The Appellate Division also reviewed the trial court’s decision that the employee’s retaliation claims failed because the employee could not argue that “substantiated discipline as retaliation.” The Appellate Division, again, reversed this decision on the basis that even if the discipline had a legitimate basis, it could still have been done for a retaliatory and/or discriminatory reason. The example provided by the Court is if the employer applied a particular policy more stringently against the employee based on his race and/or disabilities.

Interestingly, in reviewing the trial court’s decision related to the employee’s CEPA claims, the Appellate Division found that the trial court did not err in finding that there is an implicit requirement that an employee advancing a CEPA claim establish that he was able to perform his essential functions. Nevertheless, the Appellate Division found that the employee had raised enough factual disputes to reverse the trial court’s decision to dismiss.

The major takeaway from this appeal is where discovery on material issues has yet to be exchanged between the parties, summary judgment should be denied. This is merely due process and fundamental fairness. This could not have been more clear in this case. The employer filed its motion prior to producing any discovery, only providing the information and documents that it wanted to produce through certifications filed in support of its motion for summary judgment. This prevented the employee from gaining valuable information and documents that could have helped test the employer’s alleged version of the facts. The Appellate Division was aware of this and reversed the trial court’s summary judgment order in full.

Our employment law attorneys can help advise both employers and employees regarding potential employment related claims. To set up an appointment to speak with one of our attorneys, please call (973) 890-0004 or e-mail us. We can help.

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