                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.


                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4751-15T2

PHILIP MARCHESANI,

        Plaintiff-Appellant,

v.

J.B. HUNT TRANSPORTATION, INC.
and LAURIE PATTERSON,

     Defendants-Respondents.
________________________________________________________________

              Submitted September 12, 2017 – Decided October 31, 2017

              Before Judges Fasciale, Sumners and Moynihan.

              On appeal from the Superior Court of New
              Jersey, Law Division, Burlington County,
              Docket No. L-0330-14.

              Costello & Mains, PC, attorneys for appellant
              (Deborah L. Mains, on the brief).

              Weber, Gallagher, Simpson, Stapleton, Fires &
              Newby, LLP, attorneys for respondents (Julie
              H. Kinkopf and Joseph Goldberg, on the brief).

PER CURIAM
       Plaintiff, Philip Marchesani,1 appeals from the grant of

summary judgment in favor of J.B. Hunt Transportation, Inc. (Hunt),

and Laurie Patterson (collectively defendants), and concomitant

dismissal with prejudice of his complaint alleging defendants

contravened the New Jersey Law Against Discrimination (NJLAD).2

Utilizing the de novo review applicable standard, we reverse.

       Looking at the facts in the light most favorable to the non-

moving party, the record demonstrates Marchesani applied to Hunt

for a job as a truck driver and received a conditional offer of

employment on October 14, 2013; the pertinent condition required

him    to   obtain    a    medical     certification      proving   that   he    was

physically qualified in accordance with United States Department

of Transportation (DOT) regulations (the regulations).3

       Hunt   would       accept   a   DOT       certification   only   from    U.S.

Healthworks.     To that end, Marchesani saw Healthworks' Dr. Shanti

Reddy on October 15, 2013, for a physical examination.                  The doctor

"temporarily disqualified" Marchesani because she needed further

information about his prescription medications - Lyrica, Dilaudid


1
  Although plaintiff's surname is spelled "Marchasani" in the
Notice of Appeal, it was spelled "Marchesani" in the record of
proceedings before the motion court and the parties' other
submissions on appeal; we utilize the latter spelling.
2
    N.J.S.A. 10:5-1 to -42.
3
    See 49 C.F.R. § 391.41 (1970).

                                             2                             A-4751-15T2
and Percocet - and clearance from his doctor that he was able to

perform duties associated with the truck driver position because

he suffered from cervical radiculopathy; a pinched cervical nerve

caused pain in his right arm.                  Until the doctor received the

requisite    information,     she    testified       in    her   deposition,      the

certification would be put "on hold."

      Dr. Reddy never issued a certification for Marchesani because

she did not receive the information she requested.                 Hunt rescinded

the   conditional     offer   on    November      11,    2013.     In   answers    to

interrogatories,      defendants      admitted       Marchesani's       offer   "was

rejected    because    he   failed    to       provide    the   requested   medical

documentation necessary to complete and pass the required DOT

physical, making him not qualified for employment" under federal

regulations.

      On February 14, 2014, Marchesani filed a complaint alleging

discrimination under the NJLAD.                The trial court granted summary

judgment finding Marchesani did not establish a prima facie case

that he was qualified for the position because he did not comply

with the regulations by obtaining a medical certification.                        The

trial court also found the evidence showed the doctor to whom

Marchesani was sent by Hunt to obtain the certification informed

him about the information she needed to issue the certification.



                                           3                                A-4751-15T2
     On appeal, Marchesani contends that he was qualified for the

position despite the lack of medical certification.               He also

contends that a dispute exists as to whether anyone told him what

he needed to provide to be certified.       Defendants, in opposition,

contend   that   Marchesani's    failure   to   obtain   a   certification

precludes him from establishing a prima facie case that he was

qualified for the position.      Alternatively, defendants assert, as

non-discriminatory reasons for withdrawing Marchesani's employment

offer, that he did not provide information necessary to issue his

certification, and that he made statements on a 2011 Social

Security Disability application that show he was not qualified.

     We reverse the order granting summary judgment because there

is sufficient evidence, viewed in the light most favorable to

Marchesani, from which a reasonable factfinder could discredit

defendants' reasons for rescinding Marchesani's conditional offer

of employment, and infer that defendants' action was motivated by

discriminatory reasons.

     We recognize summary judgment should be granted if the court

determines "there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or

order as a matter of law."      R. 4:46-2(c).   We consider whether the

competent evidential materials presented, when viewed in the light

most favorable to the non-moving party in consideration of the

                                    4                              A-4751-15T2
applicable   evidentiary   standard,   are   sufficient   to   permit    a

rational factfinder to resolve the alleged disputed issue in favor

of the non-moving party.    Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995).     We review the trial court's decision

in these matters de novo, and afford the trial court ruling no

special deference.    Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co., 224 N.J. 189, 199 (2016).

     Some basic principles inform our review.         "All employment

discrimination claims require the plaintiff to bear the burden of

proving the elements of a prima facie case."     Victor v. State, 203

N.J. 383, 408 (2010).      Our Supreme Court adopted the elements

required to establish a prima facie case of unlawful discrimination

announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S. Ct. 1817, 36 L. Ed. 2d 668 (1973).        Peper v. Princeton Univ.

Bd. of Trs., 77 N.J. 55, 82-83 (1978); Goodman v. London Metals

Exch., Inc., 86 N.J. 19, 31 (1981). A plaintiff meets this initial

burden in an NJLAD case by establishing:

          by a preponderance of the evidence that he or
          she (1) belongs to a protected class, (2)
          applied and was qualified for a position for
          which the employer was seeking applicants, (3)
          was rejected despite adequate qualifications,
          and (4) after rejection the position remained
          open and the employer continued to seek
          applications for persons of plaintiff's
          qualifications.



                                  5                              A-4751-15T2
             [Andersen v. Exxon Co., U.S.A., 89 N.J. 483,
             492 (1982).]

       Defendants claim, and the motion judge found, Marchesani did

not prove he was qualified for the position because he did not

provide the required DOT certification.          Marchesani did, however,

offer competent evidence – a report from John Kirby, M.D., and a

Worknet Medical Examination Report – that he was qualified for the

job.

       Dr.   Kirby   conducted   a   physical   examination   and   reviewed

Marchesani's medical history and opined:

             Mr. Marchesani has no cardiac, pulmonary,
             renal,     neurological,     musculoskeletal,
             endocrine,               gastroenterological,
             dermatological, or urological problems - - -
             by history or physical examination - - - that
             would preclude gainful employment as a truck
             driver under §391.41: Physical qualifications
             for drivers.

In the November 11, 2013 Worknet report, Paul DeJoseph, D.O.,

concluded after examination that Marchesani met the standards set

forth in the regulations for a one-year period.

       Only a modest showing is necessary to establish a prima facie

case.    Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005).

The proffered evidence, considered in the light most favorable to

Marchesani, sufficiently established a dispute whether he was

qualified under the regulations as of November 11, 2013, the date



                                       6                             A-4751-15T2
Hunt told him he was not going to be hired.4               Contrary to the

motion judge's ruling, Marchesani did not have to have a DOT

certification at the time Hunt made the adverse determination.             He

need only establish he could have obtained one on that date.

     We find no merit in defendants' additional arguments that Dr.

Reddy did not receive the Worknet evaluation; Hunt only accepted

certifications from U.S. Healthworks; Dr. Kirby did not address

Marchesani's use of Lyrica, Dilaudid or Percocet5 or his cervical

radiculopathy.     R. 2:11-3(e)(1)(E).         While such arguments may

ultimately prevail before a jury, defendants are not entitled to

summary judgment as a matter of law.

     When   a    plaintiff   makes       out   a   prima   facie   case    of

discrimination     we   apply   the        burden-shifting     methodology

articulated in McDonnell Douglas.          Zive, supra, 182 N.J. at 447-

50; Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595-96 (1988).




4
 The motion judge found, "Dr. Reddy herself acknowledged that she
never concluded Mr. Marchesani to be physically incapable of
performing the job," and that the doctor's testimony "would seem
to indicate that [he] may have been physically qualified for the
position . . . in terms of true physical capabilities," although
she did not find the doctor's testimony proved he was "physically
capable of the job."
5
  Dr. Kirby's report indicates he knew Marchesani took Lyrica for
diabetic neuropathy, and knew he contended that he discontinued
the use of Dilaudid and Percocet at the time he applied to Hunt.

                                     7                              A-4751-15T2
The burden shifts to the employer to state a legitimate reason for

denying employment.     Zive, supra, 182 N.J. at 449.

      The Court, in Zive, cited with approval the procedure utilized

in the Third Circuit that:

             if the employer proffers a non-discriminatory
             reason, plaintiff does not qualify for a jury
             trial unless he or she can "point to some
             evidence, direct or circumstantial, from which
             a factfinder could reasonably either (1)
             disbelieve    the    employer's    articulated
             legitimate reasons; or (2) believe that an
             invidious discriminatory reason was more
             likely than not a motivating or determinative
             cause of the employer's action."

             [Id. at 455-56 (quoting Fuentes v. Perskie,
             32 F.3d 759, 764 (3d Cir. 1994)); see also
             Bergen Commer. Bank v. Sisler, 157 N.J. 188,
             211 (1999) (citation and internal quotation
             marks omitted) (noting "[a]n employee may meet
             this burden either by persuading the court
             directly that a discriminatory reason more
             likely motivated the employer or indirectly
             by showing that the employer's proffered
             explanation is unworthy of credence").]

      Defendants proffer two non-discriminatory reasons why they

did not hire Marchesani: they could not employ him without a DOT

certification from Dr. Reddy as required by the regulations, which

he failed to obtain; and the statements he made in connection with

a   Social   Security   disability   application   showed   he   was   not

qualified for the position.

      The burden, therefore, shifts to Marchesani "to prove by a

preponderance of the evidence that the reason[s] articulated by

                                     8                            A-4751-15T2
the employer [were] merely a pretext for discrimination and not

the true reason[s] for the employment decision." Zive, supra, 182

N.J. at 449 (citing Clowes, supra, 109 N.J. at 596).                 To avoid

summary judgment, "plaintiff's evidence rebutting the employer's

proffered legitimate reasons must allow a factfinder reasonably

to infer that each of the employer's proffered non-discriminatory

reasons, . . ., was either a post hoc fabrication or otherwise did

not actually motivate the employment action (that is, the proffered

reason is a pretext)."         Kelly v. Bally's Grand, Inc., 285 N.J.

Super. 422, 431 (App. Div. 1995) (alteration in original) (quoting

Fuentes, supra, 32 F.3d at 764).

     An examination of the evidence leads us to conclude that

Marchesani   has    provided    sufficient   evidence   to   avoid    summary

judgment.    First, there is evidence that creates a dispute whether

Dr. Reddy directly advised Marchesani about the information she

needed or if she communicated indirectly via defendant Laurie

Patterson, an administrative assistant employed by Hunt, thus

supporting an inference that Patterson, who communicated with

Marchesani exclusively about the position, withheld information

that was critical to obtaining the requisite certification.

     Dr.    Reddy   testified    she   required   information    detailing

Marchesani's prescriptions for Dilaudid and Percocet.            Dr. Reddy

deposed that she asked Patterson to get information "about Dilaudid

                                       9                              A-4751-15T2
and the M.D. who prescribes any of these medications, Dilaudid,

Percocet or Oxycontin or any other narcotics that he's taking."

Dr. Reddy testified she believed she received forms from Patterson

that referenced Marchesani's prescriptions for, among other drugs,

Oxycontin and Percocet, but not Dilaudid.              She said she never

learned the name of the physician who prescribed the Dilaudid –

information the doctor admitted she needed in order to "pass him."

      When asked if there was "anything else" besides receipt of

the bottle for Dilaudid that prevented her from "passing . . .

Marchesani in his DOT exam," Dr. Reddy said she did not believe

she received clearance from Marchesani's doctor regarding his

cervical     radiculopathy.        Further,   although   she   acknowledged

receipt of a note from a medical professional she variously

described as a registered nurse or nurse practitioner regarding

his prescription for Lyrica, Dr. Reddy said she needed a note from

a   doctor   –   not   a   nurse   practitioner   or   registered   nurse    –

explaining why Lyrica was prescribed for Marchesani.            She "needed

to make sure that he didn't have any . . . issues with that because

he would be driving, and his lower extremities would be of concern

for diabetic neuropathy . . . ."           She also needed to confirm that

Lyrica was not prescribed because Marchesani suffered a brain

injury or had "any history of partial seizures or epilepsy."                At



                                      10                             A-4751-15T2
the conclusion of her deposition, she said she never received

clearance from a doctor.

     If Dr. Reddy received the information about the Dilaudid and

cervical radiculopathy, she said she would "assess it and go from

there."6   She would have cleared Marchesani if a doctor authorized

him to perform the work required of a truck driver.

     Marchesani contends Dr. Reddy never told him what information

he needed to provide in order to obtain medical clearance; he

avers any communication regarding that issue was made through

Patterson and that he complied with all of her requests.

     The record buttresses his position, manifesting a disputed

fact that precludes judgment as a matter of law.    When Dr. Reddy

was asked if she communicated to Marchesani about the information

she needed, most of her answers were equivocal.    She couched some

of her deposition answers in dubitable terms, saying, "I might

have discussed" the information with him.

     On one occasion she did not recall if she spoke directly to

Marchesani "about the issue with the Dilaudid."     On another she

remembered asking him for "copies of his medications" because he

disclosed he took Dilaudid and Percocet, and explained:



6
  The doctor did not say, at that point, she still needed
information about Marchesani's use of Lyrica or his diabetic
neuropathy.

                                11                          A-4751-15T2
                 So based on my usual practice, when
            somebody reveals something like that to me
            . . . I usually tell them if you have that
            information, come back and let us know, or if
            you have details on that medication, come back
            and let us know, and I will instruct the
            medical assistant in the front to get whatever
            information that they come back with and to
            write them down.

     She did not recall if she spoke only with Patterson, or with

Marchesani,   after    she    received   notes    and   documents   that    she

requested

            because sometimes we do talk to patients,
            sometimes they give us calls and we talk to
            them, or sometimes we call them if we think
            the personnel is unable to convey that
            properly to the patient, . . . but I don't
            recall in this particular instance if I did
            talk to him, or J.B. Hunt personnel did.
            Either way, I can't be 100 percent.

     When shown a form setting forth the information she required,

Dr. Reddy said it was "usually hand[ed] over to the patient" but

did not know if she or a medical assistant handed it to Marchesani,

saying, "[O]ne of us would have."                She talked of her usual

practices in concluding that someone in her office provided the

form to Marchesani.

     She spoke of her usual practices again when asked if the

needed   information    was    conveyed    by    the    doctor   directly    to

Marchesani or through Patterson and other Hunt employees:

            The day of the exam I would have definitely
            told him that because that's how I usually

                                    12                                A-4751-15T2
           practice. I clearly tell them what they need.
           Sometimes patients do forget, however, I
           always make sure that they understand, and the
           paper is given to them, and we offer to fax
           it from J.B. Hunt facility right away if they
           have the fax number of the medical doctor that
           they recall, or if they don't recall, we ask
           them to get it from their family, whatever
           needs to be done, we get that information, and
           we fax it to the doctors, doctor or doctors,
           from the facility.

                So I know that's how, either it would
           have been done on the day that he was examined
           or maybe the day after . . . .

     Dr.     Reddy's    deposition     testimony   supports       Marchesani's

contention    that     the   doctor   used   Patterson   as   a   conduit   for

information.     As defendants concede in their brief, Dr. Reddy

"asked for the name of the doctor who prescribed the Dilaudid; for

clearance that the Lyrica was being taken for diabetic neuropathy

and not seizures; and for clearance from his doctor that he could

drive, load and unload despite his cervical radiculopathy."                 Dr.

Reddy admitted she asked Patterson for information about Dilaudid

and other drugs taken by Marchesani.          Dr. Reddy testified that she

attached a post-it note to an October 30, 2013 letter directed to

Hunt personnel and requested the name of the doctor who prescribed

Dilaudid; Patterson was the person with whom the doctor was

corresponding at the time.        She believed she told Patterson about

the medical clearance needed from his doctors.



                                      13                               A-4751-15T2
      This evidence is sufficient to permit a factfinder reasonably

to infer that Dr. Reddy did not directly tell Marchesani all of

the information that was needed for the certification, and that

Patterson was the means by which the doctor sought to communicate

with him.

      There is evidence that Patterson told Marchesani about some

items needed for medical clearance.         By letter dated October 21,

2013, Patterson advised him to send a picture of the bottle in

which   his    Dilaudid   prescription     was   packaged.7      Marchesani

testified at his deposition that among the items Patterson asked

him to provide were "five years of the prescription[s]" he took

and pictures of the prescription containers.

      The motion judge dismissed Marchesani's assertion that he did

not   know    what   information   he   needed   to   provide,   finding    he

"testified to being informed about needing all the medications he

listed and specifically about the Dilaudid. This testimony reveals

that [he] was told about the information needed on the Dilaudid,

and that the Defendants did not withhold that information from

him."

      The portions of the deposition transcript cited by the judge

do not address the information the doctor required regarding


7
  Marchesani testified he believed he was advised of the need for
the picture by phone.

                                    14                               A-4751-15T2
Marchesani's    medical     conditions,   particularly      his     cervical

radiculopathy, information Marchesani says he was never asked to

provide.

       Further, the timing of the events following the October 15,

2013 exam establishes a disputed fact whether defendants used the

lack   of   certification   as   a   pretext    to   discriminate   against

Marchesani.

       Patterson requested a picture of the Dilaudid bottle from

Marchesani, whether by letter or telephone call, on October 21.

Marchesani signed a statement dated October 23 on Hunt letterhead

that he was "no longer taking or being prescribed" Dilaudid or

Percocet.     Dr. Reddy testified about the October 30 letter to

which she attached a post-it note requesting the name of the doctor

who prescribed Dilaudid, Percocet, and Oxycontin to Marchesani;

she said she was corresponding with Patterson at the time she

wrote the note.   Dr. Reddy did not remember if Patterson responded

to the post-it note, but did remember that Patterson provided

"medication forms" after that time which contained information

about Percocet and Oxycontin, but not Dilaudid.            Marchesani had

provided a printout from Shop Rite of his prescriptions.                  Dr.

Reddy said she would have asked Patterson "to specifically get the

information for the Dilaudid, and . . . would hold off until the

Dilaudid information is back to us."           As the motion judge noted,

                                     15                              A-4751-15T2
"Dr. Reddy did not recall . . . Patterson ever providing the

information afterwards."

     Dr.   Reddy   testified   she    had   several   conversations   with

Patterson.   When asked to tell what she recalled about them, she

said:

           Mainly it was because she would tell me that
           [Marchesani is] getting frustrated that he is
           not being cleared, and I would tell her . . .
           I need the information as to who the M.D. is,
           who is prescribing it, and if he has the
           Dilaudid on him and just sends us a picture
           of the Dilaudid. Just because he sent those
           pictures of these, I would have asked her to
           get a picture of Dilaudid as well, the
           medication bottle.

The record is unclear when, between October 15 and November 11,

those conversations took place.       But, the evidence does establish

Dr. Reddy needed information in order to clear Marchesani and told

Patterson about that information; Marchesani provided a list of

medications pursuant to Patterson's request; and Dr. Reddy did not

receive the necessary information about the Dilaudid and the

medical clearance from a doctor.

     The activities on October 21 and 23; the exchanges between

Dr. Reddy and Patterson; and Marchesani's provision of the list

of medications, the pictures of the Percocet and Oxycontin bottles,

and the October 23 letter about his discontinuance of Dilaudid and

Percocet, point to ongoing efforts to supply Dr. Reddy with the


                                     16                           A-4751-15T2
information she required.        The delay, the frustrated inquiries by

Marchesani, and the abrupt rescission of the conditional offer on

November 11 is evidence from which a reasonable factfinder could

infer that, despite Marchesani's ongoing efforts to supply Dr.

Reddy with the required information, Patterson did not convey to

Marchesani the need for, at least, the medical clearance from his

doctors in an effort to delay the issuance of the certification,

giving Hunt time to consider his medical condition as initially

conveyed by Marchesani to the doctor, and rescind the conditional

offer.    It     is   evidence   from    which    a   factfinder   could   both

disbelieve defendants' stated reasons, and believe Marchesani's

medical issues were the reason he was not hired.               If defendants

did not convey the need for that information to Marchesani so that

Dr. Reddy could not issue the DOT certification, the inference

that defendants used the lack of certification as a pretext to

deny him employment because of his disability is reasonable,

considering the record established.

     We   note    Marchesani     contends    he   delivered   what   Patterson

requested.     It is obvious Marchesani did not show the doctor – or

anyone else – the Dilaudid bottle, or a picture of same; he never

took the drug.        He realized that at his deposition.               Since,

however, he mistakenly thought he complied with defendants' prior

requests regarding that drug, it can be inferred the alleged

                                        17                             A-4751-15T2
intentional failure by defendants to communicate with Marchesani

kept him from clarifying the discrepancy, and that his application

was rejected before he had the opportunity to clear that issue.

      The evidence in the record also belies defendants' second

proffered non-discriminatory reason, that statements Marchesani

allegedly made in connection with his social security application

showed he was not qualified for the job.              The application was

submitted in 2011.    It is not indicative of Marchesani's physical

condition when he applied to Hunt, or his fitness to perform

necessary duties for that job.            Dr. Reddy admitted that she did

not   determine   Marchesani   was    unfit    and   that    she   would   have

"absolutely" cleared him if she received the medical clearance and

Dilaudid information, notwithstanding his past use of Dilaudid and

Percocet, or his cervical radiculopathy, or his diabetes.                      A

reasonable finder of fact could determine Marchesani's statements

to social security were not the reason for the decision to deny

him employment.

      The evidence that could reasonably be inferred by a factfinder

should have been credited by the motion judge as disputed facts

which precluded the entry of summary judgment.              We are compelled

to reverse, reinstate Marchesani's complaint, and remand this case

to the trial court for further proceedings.                 We do not retain

jurisdiction.

                                     18                                A-4751-15T2
19   A-4751-15T2
