Thursday, April 4, 2019
An appeal of a bus driver's dismissed claim of hostile work environment was rejected by the New Jersey Appellate Court
plaintiff argues that "the trial court erred in granting defendants' motion for summary judgment and dismissing [his] claim for hostile work environment based upon perceived disability under" the LAD. We disagree.
The basis of the claim
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.
Issues arose after a series of medical exams revealed some serious health issues but did not establish plaintiff was disabled.
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.
obesity alone is not protected under the LAD as a disability unless it has an underlying medical cause, a condition that plaintiff failed to meet in the present case. Viscik, 173 N.J. at 17. Here, plaintiff did not establish that defendants viewed him as anything other than obese, which is not a protected class under the LAD. Just as significantly, he did not demonstrate that defendants perceived him as being disabled.
In this regard, the record was one-sided in support of the fact that plaintiff's supervisors never took any actions to change the conditions of his employment as the result of any "perceived disability." For the ten years plaintiff worked at Community, he drove a regular route, and never alleged that he received less pay than other drivers or had to work longer or fewer hours. In fact, Community recognized plaintiff's good work on several occasions by giving him awards.
In addition, plaintiff passed each of his mandatory medical examinations between 2005 and 2015 even though he weighed over 500 pounds from the date of his hire. Both of his supervisors testified that they did not consider plaintiff to be disabled, and neither of the independent doctors who examined plaintiff ever made that determination...
Because plaintiff was not able to demonstrate that he suffered from a disability or a perceived disability covered by the LAD, the judge properly dismissed his hostile work environment claim. Even if this were not the case, we discern no basis for disturbing the judge's conclusion that plaintiff also failed to demonstrate that the comments his coworkers made to him about his weight created such an environment...
Community never fired plaintiff, and kept his job open in the hope that he would be able to pass his licensing examination. Under the totality of these circumstances, we agree with the judge that the cumulative effect of the coworkers' comments was not sufficiently "severe or pervasive" to create an actionable hostile work environment claim under the LAD.