                                NOT FOR PUBLICATION WITHOUT THE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-1482-17T3

RICHARD BAKER,

          Plaintiff-Appellant,

v.

CAMDEN COUNTY
HIGHWAY DEPARTMENT,

     Defendant-Respondent.
________________________________

                    Submitted October 31, 2018 – Decided November 8, 2018

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. L-4146-14.

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

                    Christopher A. Orlando, Camden County Counsel,
                    attorney for respondent (Anne E. Walters, Assistant
                    County Counsel, on the brief).

PER CURIAM
      Plaintiff Richard Baker appeals from a November 8, 2017 order denying

reconsideration of the summary judgment dismissal of his complaint, pursuant

to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,

against defendant Camden County Highway Department. We affirm.

      The following facts are taken from the record.           Plaintiff has been

employed by defendant since 2007. He holds a commercial driver's license

(CDL) and is authorized to operate equipment. On December 7, 2012, plaintiff

struck his head on an I-beam inside a supply warehouse and fell down a flight

of stairs, injuring himself. As a result, plaintiff was absent from work on

medical leave from the date of the accident until September 2013. During this

time plaintiff collected workers' compensation.

      Plaintiff was medically cleared to return to work in September 2013.

When plaintiff returned to work, he claimed he was discriminated against

because he had availed himself of workers' compensation benefits. He claimed

he was singled out by his supervisor for verbal abuse, barred from entering the

supply warehouse, and made to stand outside the building, ring a bell, and

request the items he needed.

      Plaintiff claimed he was not permitted to return to his prior position inside

the highway department yard, but made to perform work "on the road," including


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                                        2
mowing and trimming. Plaintiff alleged his supervisor verbally harassed him,

accused him of intentionally injuring himself, and being a "drug addict" for

taking pain medication. Plaintiff complained about his supervisor's conduct and

sought a transfer, but it was denied.

      On August 7, 2013, plaintiff and eight coworkers were randomly selected

to undergo drug testing pursuant to defendant's policy.     The drug tests are

administered by an independent third-party, which utilizes software to randomly

select employees for testing.     If an employee tests positive for an illicit

substance, the medical testing provider contacts the employee to afford the

employee an opportunity to provide a list of medications, which may have had

an effect on the test result. Plaintiff's drug test was performed on October 21,

2013, and revealed he tested positive for amphetamines. Pursuant to defendant's

policy, plaintiff was notified of the positive result. On October 23, 2013, he

informed the testing facility he was taking Nexium, Sudafed, Motrin, and a nasal

spray. This information was reviewed by the testing facility and determined to

be unavailing. Therefore, on October 25, 2013, the testing facility notified

defendant of the positive test for amphetamines.

      On October 29, 2013, defendant served plaintiff with a preliminary notice

of discipline, charging him with: conduct unbecoming of a public employee,


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                                        3
violation of federal regulations concerning drug and alcohol use, and violation

of a Camden County policy. The notice advised plaintiff of his right to seek a

departmental hearing however, plaintiff, who was represented by an attorney,

did not seek a hearing. Instead, on January 27, 2014, plaintiff entered into a

settlement agreement whereby he agreed to accept a five-month suspension and

complete eight substance abuse educational sessions.

      Plaintiff filed a complaint, which alleged defendant discriminated against

him based upon a disability, perception of disability, and retaliation.

Specifically, plaintiff alleged defendant discriminated against him for availing

himself of workers' compensation and based on a perception of disability, by

requiring him to perform less desirable road work, and barring him from the

supply warehouse.     Plaintiff alleged defendant retaliated against him by

requiring he submit to the drug test. Plaintiff asserted the testing was not

random, but targeted, and claimed defendant did not follow its own policy of

awaiting the testing facility's review of the medications plaintiff was taking as

potentially exculpatory evidence before taking disciplinary action.

      Following the completion of discovery, which also included the

deposition of plaintiff and three supervisors, defendant filed a motion for

summary judgment. The motion judge rejected plaintiff's claim defendant had


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                                       4
retaliated against him for accepting workers' compensation. The judge noted

"[d]efendant points out that there were other instances where plaintiff availed

himself of worker[s'] compensation benefits and no retaliation took place."

      The judge also rejected plaintiff's claim that defendant had retaliated

against him by targeting him for drug testing. The judge detailed the testing

process. He described how it was conducted by an independent third-party,

which maintains "a database with eligible Camden County employees with

CDL's which are updated by the county . . . in order to ensure a lack of bias in

the selection process." The judge noted that nine other employees were also

randomly selected with plaintiff, including an employee plaintiff claimed had

been harassing him. The judge also described how the test results were reviewed

by a qualified scientist, and plaintiff was afforded the opportunity to provide the

testing facility with an explanation for the positive test results. The judge noted

plaintiff did not dispute the drug test and instead entered into a settlement

agreement and agreed to a suspension.

      The judge concluded there was no direct or circumstantial evidence of

discrimination based upon perception of disability. He noted after plaintiff's

injury and convalescence he "was cleared to return to work fulltime, at full

duty." The judge further found "no evidence [plaintiff] was forced to labor


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                                        5
under unreasonable conditions . . . [o]r that someone else was hired to perform

his work." The judge concluded:

            There's no evidence that the drug test and subsequent
            discipline were in retaliation for plaintiff's receiving
            worker[s'] compensation benefits. Or that the plaintiff
            was able to show any link between . . . the random drug
            test and plaintiff's going out on worker[s']
            compensation as a result of the December 7th injury.

      The judge also dismissed plaintiff's punitive damages claim. The judge

found the statements made by plaintiff's supervisors were not harassing,

egregious, or evidence of "wantonly, reckless, or malicious action" to warrant

consideration of punitive damages.

      Following the entry of summary judgment, plaintiff filed a motion for

reconsideration. Plaintiff argued the motion judge misinterpreted his complaint

as asserting a hostile work environment. Plaintiff also argued the motion judge

believed defendant could terminate him for testing positive for amphetamines,

which misinterpreted defendant's drug testing policy. Plaintiff argued the judge

incorrectly found no evidence of perceived disability discrimination, and

incorrectly concluded defendant could rely on an "[i]nadmissible double hearsay

document to prove plaintiff was using illegal drugs."

      The judge noted he did not decide the matter as a hostile work

environment claim because "plaintiff was alleging discriminatory retaliation and

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                                       6
a perception of disability discrimination." The judge repeated his finding that

plaintiff had failed to demonstrate any evidence of retaliation for seeking

workers' compensation.

      The judge rejected plaintiff's argument summary judgment was granted

only because plaintiff had tested positive for amphetamines. After repeating the

description of the drug testing procedure utilized on plaintiff and his coworkers,

the judge concluded:

            [T]he facts belie plaintiff's claim in that he hasn't
            explained the pain medication. He hasn't explained the
            amphetamine. He chose to accept the settlement
            agreement. He argues that he was forced to do so in
            order to keep his job, but nonetheless on such an
            important issue if he had a legitimate reason for taking
            the amphetamine, that should have been put forth.

            I find that there was confirmation that the County had
            concerning [illicit] drug use; took the action based on
            that and nothing really changed after that factually in
            terms of any action on plaintiff's part to establish what
            drug and what . . . prescription [he had].

            Plaintiff was represented by an attorney, accepted the
            action and cannot now complain or go back and . . . visit
            those facts, again, when he entered into the settlement
            agreement.

      The judge denied plaintiff's motion for reconsideration.          This appeal

followed.



                                                                            A-1482-17T3
                                        7
                                         I.

      At the outset, we note our review is limited to the November 8, 2017 order,

which denied plaintiff's motion for reconsideration. "While [Rule 2:5-1(f)(1)]

does not in terms so provide, it is clear that it is only the judgments or orders or

parts thereof designated in the notice of appeal which are subject to the appeal

process and review." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1

on R. 2:5-1(f)(1) (2019) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super.

463, 465-66 (App. Div. 1994)) (rejecting review of the trial court's denial of a

request for special interrogatories because the issue was not listed in the notice

of appeal). "[I]f the notice [of appeal] designates only the order entered on a

motion for reconsideration, it is only that proceeding and not the order that

generated the reconsideration motion that may be reviewed." Ibid. (citing W.H.

Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div.

2008)). For these reasons, we do not review the September 15, 2017 order

granting defendant summary judgment because plaintiff's notice of appeal does

not indicate he has appealed from the order.

                                        II.

      Motions for reconsideration are left to the discretion of the trial judge.

Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002); Marinelli v.


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                                         8
Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). "[W]here there is a

denial of a motion for reconsideration, the standard . . . is 'abuse of discretion.'"

Marinelli, 303 N.J. at 77 (quoting Cummings v. Bahr, 295 N.J. Super. 374, 389

(App. Div. 1996)).

      On appeal, plaintiff argues the motion judge should have granted

reconsideration and vacated summary judgment because a jury could conclude

defendant retaliated against him for being absent from work on medical leave

and defendant's reason for suspending him was discriminatory. Plaintiff argues

summary judgment was improper because a jury could conclude plaintiff was

discriminated against on the basis of a perceived disability. Plaintiff also argues

his claims supported submission of the issue of punitive damages to a jury. We

address these arguments in turn.

      Pursuant to N.J.S.A. 10:5-12(d), it is unlawful under the LAD "[f]or any

person to take reprisals against any person . . . in the exercise or enjoyment of

. . . any right granted or protected by this act."

             [T]he prima facie elements of a retaliation claim under
             the LAD requires plaintiff to demonstrate that: (1)
             plaintiff was in a protected class; (2) plaintiff engaged
             in protected activity known to the employer; (3)
             plaintiff was thereafter subjected to an adverse
             employment consequence; and (4) that there is a causal
             link between the protected activity and the adverse
             employment consequence.

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                                          9
             [Victor v. State, 203 N.J. 383, 409 (2010).]

      As we noted, the motion judge determined plaintiff had not demonstrated

a causal link between availing himself of workers' compensation and his

suspension from employment for several reasons in granting summary

judgment. Indeed, contrary to plaintiff's claims, there was no evidence the drug

test was not random, the drug testing facility contacted plaintiff to provide his

prescription medications before contacting defendant and before disciplinary

charges were filed, and plaintiff agreed to his suspension as a result of the drug

test. Furthermore, all employees were excluded from the supply warehouse;

plaintiff was not singled out. There was also no evidence that requiring plaintiff

to do road work as opposed to working only in the yard was a form of menial

work. On reconsideration, the motion judge did not abuse his discretion when

he determined there was no causal link between plaintiff taking leave and the

disciplinary action he received for testing positive for amphetamines.

      The LAD states it shall be an unlawful employment practice, or unlawful

discrimination "for an employer, because of the . . . disability . . . of any

individual . . . to discharge . . . or to discriminate against such individual . . . in

terms, conditions or privileges of employment[.]"              N.J.S.A. 10:5-12(a).

Discrimination due to disability may be proved by either direct or circumstantial

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                                         10
evidence. A.D.P. v. ExxonMobil Research & Eng'g Co., 428 N.J. Super. 518,

531 (App. Div. 2012).

            The elements of a prima facie case of discriminatory
            harassment, transfer, or discharge are that (1) the
            complainant was handicapped within the meaning of
            the law; (2) the complainant had been performing his or
            her work at a level that met the employer's legitimate
            expectations; (3) the complainant nevertheless had
            been required to labor under conditions that were
            unreasonably different from those of other employees,
            had been transferred, or had been fired; and (in the case
            of discriminatory transfer or discharge) (4) the
            employer had sought another to perform the same work
            after complainant had been removed from the position.

            [Maher v. N.J. Transit Rail Operations, 125 N.J. 455,
            480-81 (1991).]

      Additionally, it is unlawful to discriminate based on perceived disability.

Andersen v. Exxon Co., 89 N.J. 483, 496 (1982). However, "an employer who

rejects a job applicant not because of his handicap per se but because of an

opinion, reasonably arrived at, that the handicap precludes adequate job

performance, . . . cannot and should not be found in violation of the [LAD.]"

Ibid. (citing Panettieri v. C.V. Hill Refrigeration, 159 N.J. Super. 472, 487

(1978)).

      Indeed, in Vargo v. Nat'l Exch. Carriers Ass'n, Inc., 376 N.J. Super. 364,

381-83 (App. Div. 2005), we affirmed the summary judgment dismissal of a


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                                      11
plaintiff's discrimination complaint where a drug test administered on behalf of

the plaintiff's employer returned positive for morphine. In Vargo, the plaintiff's

drug test was also positive for psychotropic medication. Id. at 374. The plaintiff

previously informed his employer he had been medically prescribed Zoloft and

Lotrel. Id. at 372. However, he was terminated and subsequently filed suit

alleging, in part, the employer "wrongfully refused to hire him as a permanent

employee . . . and wrongfully discharged him from his temporary position . . .

in violation of the NJLAD because [the employer's] decisions were based on its

perception that he was suffering from a disability." Id. at 378. We affirmed

summary judgment in the employer's favor and held "where an employer was

presented with a positive drug test result for a prospective employee, there was

nothing improper or unlawful in the employer's perceiving the prospective

employee as a user of illegal drugs." Id. at 383.

      Here, there is no evidence plaintiff was actually disabled. He returned to

work following his leave on a full-time basis and without restriction.

Notwithstanding the lack of proof of an actual disability, and assuming plaintiff

had a disability, he testified as follows in his deposition:

             Q. Do you believe that the County took you out of the
             yard and put you on the road because of the disability
             that you just described for me, which was the [discs,]


                                                                          A-1482-17T3
                                        12
             the tear in your rotator cuff, and your post-traumatic
             stress disorder?

             A. No ma'am.

Additionally, plaintiff testified:

             Q. Do you believe that your disability had any reason
             or had any factor in you being suspended as a result of
             the positive drug test?

             A. No ma'am.

Therefore, the motion judge did not abuse his discretion when he denied

plaintiff's motion for reconsideration where plaintiff failed to establish he was

disabled or that he was required "to labor under conditions that were

unreasonably different from those of other employees[.]" Maher, 125 N.J. at

480-81.

      For these same reasons, the motion judge did not abuse his discretion

when he denied plaintiff's motion for reconsideration on account of perceived

disability discrimination.      Moreover, as we noted, pursuant to Vargo,

defendant's suspension of plaintiff as a result of the positive drug screen was not

discriminatory.

      Finally,

             [p]unitive damages may be awarded to the plaintiff only
             if the plaintiff proves, by clear and convincing
             evidence, that the harm suffered was the result of the

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                                       13
            defendant’s acts or omissions, and such acts or
            omissions were actuated by actual malice or
            accompanied by a wanton and willful disregard of
            persons who foreseeably might be harmed by those acts
            or omissions. This burden of proof may not be satisfied
            by proof of any degree of negligence including gross
            negligence.

            [N.J.S.A. 2A:15-5.12(a).]

      The motion judge did not abuse his discretion to deny plaintiff

reconsideration due to the lack of evidence demonstrating prima facie

discrimination under the LAD.      Consequently, the record lacks clear and

convincing evidence that defendant harmed plaintiff to warrant consideration of

a punitive damages claim by a jury.

      Affirmed.




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