                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION


                              SUPERIOR COURT OF NEW JERSEY
                              APPELLATE DIVISION
                              DOCKET NO. A-3502-14T1

BRIAN HEJDA,
                                    APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                          May 9, 2017
v.
                                      APPELLATE DIVISION
BELL CONTAINER CORPORATION,

     Defendant-Respondent.

_________________________________

         Argued September 14, 2016 – Decided May 9, 2017

         Before Judges Messano, Espinosa and Guadagno.

         On appeal from Superior Court of New Jersey,
         Law Division, Monmouth County, Docket No. L-
         4179-14.

         John P. Brennan, Jr. argued the cause for
         appellant.

         Jamie S. Felsen (Milman Labuda Law Group,
         PLLC) of the New York bar, admitted pro hac
         vice, argued the cause for respondent (Milman
         Labuda Law Group, PLLC, attorneys; Mr. Felsen,
         Netanel Newberger, and Robert F. Milman, of
         the New York bar, admitted pro hac, on the
         briefs).

         Deborah L. Mains argued the cause for amicus
         curiae New Jersey Association for Justice
         (Costello & Mains, LLC, attorneys; Ms. Mains,
         on the brief).

     The opinion of the court was delivered by
ESPINOSA J.A.D.

     In Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016), our

Supreme Court applied principles the United States Supreme Court

clarified in Hawaiian Airlines v. Norris, 512 U.S. 246 114 S. Ct.

2239, 129 L. Ed. 2d 203 (1994), to conclude that an employee's

state whistleblower claim was not pre-empted by § 301 of the Labor

Management and Relations Act (LMRA), 29 U.S.C.A. 185(a).                        This

appeal presents the question whether an employee-union member's

disability     discrimination          claim      under   the     Law       Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and retaliatory

discharge    claim   under   the       Workers'    Compensation       Law    (WCL),

N.J.S.A. 34:15-1 to -128.5, are pre-empted by § 301.                  We conclude

the claims as asserted are not pre-empted because they do not

require     interpretation    of       any    provision   of    the   collective

bargaining agreement (CBA) between the union and employer.

                                         I.

                                         A.

     Plaintiff Brian Hejda, a member of Teamsters Local Union 813,

was employed as a commercial truck (CDL) driver by defendant Bell

Container Corp. when he suffered a workplace injury to his knee

on August 22, 2012.          A physician's assistant examined him at

Bell's request and referred him for an MRI and six physical therapy



                                   2                                        A-3502-14T1
sessions.1    Hejda was cleared to return to work that day with the

following restrictions: "No squatting and/or kneeling," "Must wear

knee brace," and "No climbing stairs or ladders."            The report also

noted, "NO WORK IF NO LIGHT DUTY."             Hejda averred that, despite

these restrictions, Bell's safety director asked him to continue

driving.     Hejda refused, orally demanded workers' compensation,

and left for home.

       After follow-up visits on September 21, 2012 and October 5,

2012, physician reports cleared Hejda to return to work immediately

with the same restrictions, adding he was "[u]nable to drive

company vehicle."      Hejda asserted Bell advised him that no light

duty work was available.

       In   October   and   November   2012,    Dr.   Toby   B.   Husserl,   an

orthopedic specialist, examined Hejda's knee and reviewed his MRI

results.2     He concluded Hejda required surgery and, without it,


1   Hejda attended one physical therapy session.

2   An MRI revealed Hejda had suffered:

             Complex tear posterior horn medial meniscus
             with displaced fragment into the intercondylar
             notch adjacent to the PCL. Nondisplaced
             truncation    tear    central-apical    margin
             posterior horn lateral meniscus. Moderate
             suprapatellar          joint         effusion.
             Tricompartmental      articular      cartilage
             degeneration particularly at the patellar
             upper pole lateral facet and posterior weight
             bearing lateral tibial plateau.

                                 3                                    A-3502-14T1
Hejda was not "safe for his work as a tractor-trailer driver and

would be best sedentary."          Although he cleared Hejda to return to

work in November 2012, Dr. Husserl included the restriction that

Hejda be limited to "Sedentary work (primarily sitting)," and

perform "NO COMMERCIAL DRIVING."

    On November 20, 2012, Hejda filed a workers' compensation

claim with the New Jersey Department of Labor and Workforce

Development, Division of Workers' Compensation (NJDOL).                           In its

answer, Bell denied Hejda "sustained a disabling injury while in

the course and scope of his/her employment with [Bell]."

    In    February   2013,     Hejda      consulted       Dr.   Mark    Seckler,      an

orthopedic specialist.        Dr. Seckler agreed with Dr. Husserl that

arthroscopic surgery was "the treatment of choice" and that,

despite   Hejda's    claim    to     be   "absolutely       asymptomatic,"          such

surgery was inevitable.       Nevertheless, he cleared Hejda to return

to work on February 7, 2013, with full duty and no restrictions.

    Hejda reported to work every day during the week of February

11-15, 2013, but was not given much to do.                  When he reported to

work the following week, he was told by Bell to leave.

                                          B.

    On    February   20,     2013,     Bell    sent   a    letter      to   the    union

explaining that before Hejda could return to work, he had to be

recertified pursuant to the Department of Transportation (DOT)

                                   4                                          A-3502-14T1
Federal Motor Carrier Safety Regulation, 49 C.F.R. § 391.45(c).

That regulation requires "[a]ny driver whose ability to perform

his/her normal duties has been impaired by a physical or mental

injury or disease" to be "medically examined and certified in

accordance with [49 C.F.R.]§ 391.43 as physically qualified to

operate a commercial motor vehicle."

     49 C.F.R. § 391.43(a) requires that the physical examination

"be performed by a medical examiner listed on the National Registry

of Certified Medical Examiners."     In addition, medical examiners

must:

          (1) Be knowledgeable of the specific physical
          and mental demands associated with operating
          a   commercial   motor    vehicle   and   the
          requirements of this subpart, including the
          medical advisory criteria prepared by the
          [Federal Motor Carrier Safety Administration]
          as guidelines to aid the medical examiner in
          making the qualification determination; and

           (2) Be proficient in the use of and use the
          medical protocols necessary to adequately
          perform the medical examination required by
          this section.

          [49 C.F.R. § 391.43(c).]

     The results of the medical examination must be recorded on

a specified Medical Examination Report Form, MCSA-5875, set

forth in the regulation.   49 C.F.R. § 391.43(f).   That form

requires the driver to complete a "Health History," which must

be reviewed and discussed with the physician.

                            5                               A-3502-14T1
     In its letter to the union, Bell represented it would contact

Hejda to schedule the recertification.          Hejda declined to submit

to the scheduled independent medical examination.

                                    C.

     Pursuant to the terms of the CBA, the union filed a grievance

against Bell in February 2013, alleging violations of Articles 2

(wages), 4 (hours), 5 (overtime), 19 (non-discrimination) and 20

(seniority) of the CBA for "failure to schedule [Hejda] to work

after doctor's release."    The remedy requested was payment of "all

lost wages and benefits as well as schedule to work immediately."

The grievance arbitration was conducted on April 5, 2013.

     On April 11, 2013, Hejda obtained a medical certificate from

Dr. Alexander Goldberg, a family physician.3           On the form, Hejda

certified he had provided "complete and true" information and

acknowledged    the   examination        and   certification     could   be

invalidated    by   "inaccurate,    false      or   missing   information."

However, he reported he had no medical history of issues relating

to an "impaired . . . leg."        Dr. Goldberg's comments on the form

reflect no discussion of Hejda's knee injury.                 Dr. Goldberg



3 After Hejda obtained this certificate, the NJDOL found him
eligible for workers compensation benefits without restriction,
from April 7, 2013. Bell appealed, arguing Hejda was discharged
for reasons that constituted misconduct in connection with his
work. The Appeal Tribunal rejected this argument and affirmed the
award.
                           6                              A-3502-14T1
executed the Medical Examiner's Certificate and sent a copy to

Bell.

       Bell    asked   Dr.   Goldberg     to   confirm   he   considered   the

evaluations made by Dr. Husserl and Dr. Seckler.                Dr. Goldberg

wrote a letter to Hejda, acknowledging he knew about Hejda's work

injury and subsequent clearance to return to work, and reiterated

that Hejda "meets the standards in 49 [C.F.R. §] 391.41; [and is]

qualified for 2 year certificate." Bell accused Hejda of obtaining

the certificate from Dr. Goldberg "under false pretenses" by

failing to inform him of his knee injury or provide him with the

earlier evaluations.

       In July 2013, the arbitrator issued an award and opinion,

denying    the   union's     grievance.         The   issue   arbitrated   was

"[w]hether the Employer's refusal to return the Grievant to his

former position upon Dr. Seckler's letter violated the [CBA] or

applicable [DOT] regulations, and, if so, what shall the remedy

[be]?"    The arbitrator identified the applicable contract section

as Article 32, which addresses the employer's rights.4


4   Article 32 of the CBA states, in part:

              (a) [T]he Employer shall retain all the rights
              and functions of management that it has by
              law, and the exercise of any such rights or
              functions shall not be subject to arbitration
              . . . .
              (b) The Union recognizes the right of the
              Employer to establish work rules, regulations,
                                7                                     A-3502-14T1
     Bell submitted it had "just cause"5 for refusing to reinstate

Hejda as a CDL driver until he was certified in compliance with

49 C.F.R. § 391.43.6    The union argued that Hejda should be

reinstated because Dr. Goldberg had provided a medical examiner's

certificate.

     The arbitrator explicitly stated the arbitration opinion was

"not a just cause determination" but also found the union failed

to prove Bell had violated the CBA.   The arbitrator observed that

the regulation, 49 C.F.R. § 391.45(c), was "a law that [Bell] was

required to follow and by contract, is entitled to manage its




          and policies covering the operations of its
          trucking fleet and the conduct of its
          employees. Such rights shall include but not
          be limited to issuing rules concerning safety,
          training, and efficient operations. . . .
          (c) It is agreed and understood that if the
          Employee aggrieved as a result of a rule or
          direction, he will observe the rule or
          direction and express the grievance through
          the grievance procedure provided in this
          Agreement and not through the failure to
          comply therewith.

5 Article 18 of the CBA, which addresses employee discharge,
acknowledges Bell's "right to discharge or take any appropriate
disciplinary action against Employees for . . . just cause."

6 Hejda was also examined, in May 2013, by another orthopedic
specialist, Dr. Robert I. Dennis, at Bell's request. Dr. Dennis
concluded Hejda "does have a functional range of motion to be able
to carry out the duties of a tractor-trailer driver even one that
has to unload with pallets without hesitation."      Dr. Dennis's
evaluation is not mentioned in the arbitrator's award and opinion.

                            8                              A-3502-14T1
employees, like [Hejda] under that law."7         In light of the specific

requirements for recertification set forth in the DOT regulations,

which were not satisfied by the evaluations submitted by Hejda,

the arbitrator concluded the issue of Hejda's reinstatement would

be held in abeyance until such time that he was examined and

certified pursuant to 49 C.F.R. § 391.41(b)(2).             Until that time,

Hejda was to remain on a medical layoff consistent with other

terms of the CBA.

                                     D.

     In March 2013, Hejda filed a Complaint of Discrimination

against Bell with the NJDOL's Office of Special Compensation Funds,

alleging he had been discriminated against because he filed a

workers compensation claim.        In its answer, Bell asserted Hejda's

employment had not been reinstated because he had not yet been

recertified   pursuant   to   49    C.F.R.   §   391.45    and   not   for   any

discriminatory   reason.       In    September     2014,    the    Office     of

Administrative Law dismissed this complaint without prejudice,

concluding Hejda could not have been discriminated or retaliated

against because he was not eligible to return to work without




7 Article 35 of the CBA addresses examinations, and states:
"Physical or other examinations (including [DOT] physicals)
required by any government body shall be promptly complied with
by all Employees provided, however, the Employer shall pay for all
such examinations."
                            9                              A-3502-14T1
proper certification and Bell had no obligation to reinstate a

worker who was not properly certified.

                                             E.

      In November 2013, Hejda submitted a second certification from

Dr.   Goldberg      that      purported      to     comply    with   the    regulatory

requirements, along with a demand to be returned to work as a

truck driver.       Bell offered him the position of "night switcher."

Hejda continued to demand reinstatement as a CDL driver, claiming

the night switcher offer was "obviously intended to retaliate

against [Hejda] for his assertion of his legal rights and in

discrimination of [Bell's] apparent unwarranted belief he has a

handicap/disability           which     prevents        him   from   performing       his

position as a" CDL driver.

                                             F.

      In October 2014, Hejda filed this lawsuit, alleging Bell's

refusal   to   reinstate         him   to    his    position    as   a   truck    driver

constituted unlawful discrimination under the LAD and retaliation

under the WCL.            Bell moved to dismiss the complaint pursuant to

Rule 4:6-2(a), on the ground that both the LAD and WCL claims are

pre-empted     by     §    301   of    the   LMRA    because    their    adjudication

"require[s]      an        interpretation         and    application       of    various

provisions of [the CBA]."               Bell also argued Hejda's claims are

pre-empted by DOT regulations and barred by collateral estoppel.

                                        10                                       A-3502-14T1
Finally,   Bell    contended        that,   because       Hejda    did   not   receive

recertification pursuant to the applicable DOT regulations, he was

not   qualified    to   be    a   CDL     driver    and,    therefore,     could    not

establish an LAD disability discrimination claim.

      Because the trial judge concluded "the provisions of the CBA

must be analyzed to determine . . . the claims and defenses at

issue," she found the claims pre-empted and dismissed the complaint

for lack of subject matter jurisdiction pursuant to Rule 4:6-2(a).

Accordingly,      she   did   not    address       Bell's   other    arguments      for

dismissal.

      In   this   appeal,     Hejda       argues    the    trial   judge   erred      in

concluding his claims were pre-empted by federal law.                          He also

argues the judge erred in failing to afford him all reasonable

inferences from the facts in accord with the standard applicable

to summary judgment motions, Rule 4:46-2(c), and deciding the case

before discovery was complete. We need not address these arguments

because the question of pre-emption is a purely legal issue, which

we review de novo.        See Santiago v. N.Y. & N.J. Port Auth., 429

N.J. Super. 150, 156 (App. Div. 2012), certif. denied, 214 N.J.

175 (2013).       Bell counters that the trial judge correctly ruled

that Hejda's claims were pre-empted.                  Amicus curiae New Jersey

Association for Justice argues in support of Hejda's position.



                                     11                                        A-3502-14T1
                                     II.

     "Whether federal law pre-empts a state law establishing a

cause of action is a question of congressional intent."         Hawaiian

Airlines, supra, 512 U.S. at 252, 114 S. Ct. at 2243, 129 L. Ed.

2d at 211 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

208, 105 S. Ct. 1904, 1909-10, 85 L. Ed. 2d 206, 213 (1985)).            A

federal statute will be read to supersede a State's historic powers

only if this is "'the clear and manifest purpose of Congress.'"

Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707,

715, 105 S. Ct. 2371, 2376, 85 L. Ed. 2d 714, 722-23 (1985)

(quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S. Ct.

1305, 1309, 51 L. Ed. 2d 604, 614 (1977)). Pre-emption is not to

be "lightly inferred" in areas, such as the establishment of

employment standards, which lie "within the traditional police

power of the State."      Hawaiian Airlines, supra, 512 U.S. at 252,

114 S. Ct. at 2243, 129 L. Ed. 2d at 211 (quoting Fort Halifax

Packing Co. v. Coyne, 482 U.S. 1, 21, 107 S. Ct. 2211, 2222, 96

L. Ed. 2d 1, 17 (1987)).

     Section 301 of the LMRA grants subject matter jurisdiction

to the federal courts over "[s]uits for violation of contracts

between   an   employer   and   a    labor   organization   representing

employees in an industry affecting commerce as defined in this

Act."   29 U.S.C.A. § 185(a) (emphasis added).       Federal courts are

                                12                               A-3502-14T1
charged    with   "fashion[ing]     a   body   of   federal    law    for    the

enforcement of these collective bargaining agreements."                Textile

Workers v. Lincoln Mills of Ala., 353 U.S. 448, 451, 77 S. Ct.

912, 915, 1 L. Ed. 2d 972, 977            (1957).     Pre-emption in this

context    implements   the    congressional    intent   "to       promote   the

peaceable, consistent resolution of labor-management disputes" by

insuring    the   uniform     interpretation   of   terms     in    collective

bargaining agreements.        Lingle v. Norge Div. of Magic Chef, 486

U.S. 399, 404, 108 S. Ct. 1877, 1880, 100 L. Ed. 2d 410, 417

(1988).

     The practical consequence of this principle is that when a

suit in state court alleges a violation of a labor contract, it

"must be brought under § 301 and be resolved by reference to

federal law."8    Lueck, supra, 471 U.S. at 210, 105 S. Ct. at 1911,

85 L. Ed. 2d at 215.        In such circumstances, pre-emption serves

congressional intent by precluding the creation of a "state rule

that purports to define the meaning or scope of a term in a

contract suit" and conflicts with a federal interpretation.              Ibid.




8 State courts have concurrent jurisdiction over § 301 claims but
are bound to apply federal law in deciding these claims. See Local
174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas
Flour, 369 U.S. 95, 102-03, 82 S. Ct. 571, 576, 7 L. Ed. 2d 593,
598 (1962); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 508,
82 S. Ct. 519, 523 7 L. Ed. 2d 483, 488 (1962).
                            13                             A-3502-14T1
     A state-law claim that does not present a straightforward

question of contract interpretation requires further examination.

"[W]hen resolution of a state-law claim is substantially dependent

upon analysis of the terms of an agreement made between the parties

in a labor contract, that claim must either be treated as a § 301

claim or dismissed as pre-empted by federal labor-contract law."

Id. at 220, 105 S. Ct. at 1916, 85 L. Ed. 2d at 221 (citation

omitted); accord Lingle, supra, 486 U.S. at 405-06, 108 S. Ct. at

1881, 100 L. Ed. 2d at 418-19.    By way of example, there is such

substantial   dependence   when   the   state-law   claim    requires

"interpretation of a collective bargaining agreement to determine

the content and scope of the agreement, and what legal consequences

were intended to flow from a breach of an agreement."       Nieves v.

Individualized Shirts, 961 F. Supp. 782, 792 (D.N.J. 1997) (citing

Lucas Flour, supra, 369 U.S. at 103-04, 82 S. Ct. at 577, 7 L. Ed.

2d at 599).

     In short, because of the compelling need for federal labor-

law principles to be uniformly applied,

          if the resolution of a      state-law claim
          depends upon the meaning of a collective-
          bargaining    agreement, the application of
          state law . . . is pre-empted and federal
          labor-law principles . . . must be employed
          to resolve the dispute.

          [Lingle, supra, 486 U.S. at 405-06, 108 S. Ct.
          at 1881; 100 L. Ed. 2d at 418-19 (emphasis

                            14                                A-3502-14T1
           added); accord Puglia, supra, 226 N.J. at
           276.9]

     This does not mean "every dispute concerning employment, or

tangentially involving a provision of a collective-bargaining

agreement, is pre-empted by § 301 or other provisions of the

federal labor law." Lueck, supra, 471 U.S. at 211, 105 S. Ct. at

1911, 85 L. Ed. 2d at 215.          "[T]here is nothing novel about

recognizing that substantive rights in the labor relations context

can exist without interpreting collective-bargaining agreements."

Lingle, supra, 486 U.S. at 411, 108 S. Ct. at 1884, 100 L. Ed. 2d

at 422.   The Supreme Court explained, "it would be inconsistent

with congressional intent under [§ 301]" to extend its pre-emptive

effect "beyond suits for breach of contract . . .              to pre-empt

state   rules   that   proscribe   conduct,   or   establish   rights   and

obligations, independent of a labor contract."         Lueck, supra, 471

U.S. at 212, 105 S. Ct. at 1912, 85 L. Ed. 2d at 216.                   The

holding in Lingle concisely states the governing principle: "[A]n

application of state law is preempted by § 301 of the [LMRA] only

if such application requires the interpretation of a collective-

bargaining agreement." 486 U.S.       at 413, 108 S. Ct. at 1884, 100

L. Ed. 2d at 423 (emphasis added).


9 The trial court did not have the benefit of the Supreme Court's
decision in Puglia at the time it rendered its decision and relied
upon our decision, Puglia v. Elk Pipeline, Inc., 437 N.J. Super.
466 (App. Div. 2014), which was reversed by the Supreme Court.
                            15                             A-3502-14T1
     Inevitably, there are times when a grievance may be pursued

either through a claim that a provision of the CBA has been

violated or a claim that has its roots in state law.           Under such

circumstances, the fact the employee has the ability to assert

parallel claims under the CBA and under state law does not convert

the state-law-based claim into one "dependent on the CBA." Puglia,

supra, 226 N.J. at 281.       The state-law claim is not necessarily

pre-empted    even   when   reference   to   the   CBA   assists   in   the

calculation of damages to which a prevailing state-law plaintiff

is entitled:

          Although   federal  law   would  govern   the
          interpretation of the agreement to determine
          the proper damages, the underlying state-law
          claim, not otherwise pre-empted, would stand.
          Thus, as a general proposition, a state-law
          claim may depend for its resolution upon both
          the interpretation of a collective-bargaining
          agreement and a separate state-law analysis
          that does not turn on the agreement. In such
          a case, federal law would govern the
          interpretation of the agreement, but the
          separate state-law analysis would not be
          thereby pre-empted.

          [Lingle, supra, 486 U.S. at 413 n.12, 108 S.
          Ct. at 1884, 100 L. Ed. 2d at 423 (emphasis
          added).]

      As our Supreme Court observed, the plaintiff in Puglia could

have asserted parallel claims based on the Conscientious Employee

Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, or on provisions

of the CBA.    Puglia, supra, 226 N.J. at 281.           In rejecting the

                               16                                  A-3502-14T1
argument that his CEPA claim was pre-empted under § 301, the Court

observed,

            Mere factual parallelism between a CEPA claim
            and a CBA-based claim does not make a CEPA
            claim dependent on the CBA. Puglia is not
            asking New Jersey courts to use New Jersey law
            to define the ins and outs of his bargained-
            for employment relationship with Elk. He is
            asking our courts to enforce his rights under
            CEPA,   independent   and   apart   from   his
            bargained-for employment conditions. That,
            our courts can do.

            [Ibid.]

     Thus, our evaluation of the § 301 pre-emption question begins

with Hejda's complaint, which we review "to find the source of the

right that he alleges [Bell] infringed. From that, we can determine

whether [Hejda's] claim requires an interpretation of the CBA."

See id. at 280.

     The    assertion   of   a   defense   based   on   the   CBA   will   not

necessarily alter the resolution of the pre-emption question.

Ordinarily, a CBA-based defense is "insufficient to preempt an

independent state-law action," because in the typical case, it is

unnecessary to interpret the just cause language of a CBA in order

to resolve a discrimination or retaliatory discharge claim.                Id.

at 279-80 (citing Hawaiian Airlines, supra, 512 U.S. at 266, 114

S. Ct. at 2251, 129 L. Ed. 2d at 220); see also Lingle, supra, 486

U.S. at 407, 108 S. Ct. at 1882, 100 L. Ed. 2d at 419-20.                   To

determine whether pre-emption is required as a result of the
                           17                         A-3502-14T1
defense, we still "look to what a plaintiff must prove" in the

state-law claim.    Puglia, supra, 226 N.J. at 282.

                                   A.

     We first address Hejda's claim that Bell retaliated against

him for filing a workers compensation claim.          Our analysis is

guided by the Supreme Court's decision in Lingle, in which the

plaintiff also claimed she was discharged for filing a workers

compensation claim. 486 U.S. at 401, 108 S. Ct. at 1879, 100 L.

Ed. 2d at 416.      The Supreme Court rejected the Circuit Court's

conclusion that the claim was pre-empted by § 301, stating,

          [E]ven if dispute resolution pursuant to a
          collective-bargaining agreement, on the one
          hand, and state law, on the other, would
          require addressing precisely the same set of
          facts, as long as the state-law claim can be
          resolved without interpreting the agreement
          itself, the claim is "independent" of the
          agreement for § 301 pre-emption purposes.

          [Id. at 409-10, 108 S. Ct. at 1883, 100 L. Ed.
          2d at 421.]

     The Court reviewed the elements of the workers compensation

retaliation tort recognized by Illinois courts, i.e., "that (1)

[the employee] was discharged or threatened with discharge and (2)

the employer's motive in discharging or threatening to discharge

him was to deter him from exercising his rights under the [Illinois

workers compensation statute] or to interfere with his exercise

of those rights."    Id. at 407, 108 S. Ct. at 1882, 100 L. Ed. 2d

                              18                              A-3502-14T1
at 419 (citation omitted). The Court stated each of these elements

presented    "purely    factual   questions"    that    "pertain[]   to   the

conduct of the employee and the conduct and motivation of the

employer" and did not "require[] a court to interpret any term of

a collective-bargaining agreement."          Ibid.     The Court also noted

the defense against such a claim – proof of a nonretaliatory reason

for the discharge – also entailed a "purely factual inquiry [that]

does not turn on the meaning of any provision of a collective-

bargaining agreement."      Id. at 407, 108 S. Ct. at 1882, 100 L. Ed.

2d at 420.    The Court therefore concluded, "the state-law remedy

in   this   case   is   'independent'   of     the   collective-bargaining

agreement in the sense of 'independent' that matters for § 301

pre-emption purposes: resolution of the state-law claim does not

require construing the collective-bargaining agreement." Ibid.

      The essential elements of a claim under N.J.S.A. 34:15-39.110

require similar proof: "(1) that [Hejda] made or attempted to make

a claim for workers' compensation; and (2) that he was discharged

in retaliation for making that claim." Cerracchio v. Alden Leeds,

Inc., 223 N.J. Super. 435, 442-43 (App. Div. 1988) (quoting Galante

v. Sandoz, Inc., 192 N.J. Super. 403, 407 (Law Div. 1983), aff'd,



10N.J.S.A. 34:15-39.1 makes it unlawful "to discharge or in any
other manner discriminate against an employee as to his employment
because such employee has claimed or attempted to claim workmen's
compensation benefits from such employer."
                            19                             A-3502-14T1
196 N.J. Super. 568 (App. Div. 1984)).    In the count asserting

this claim, Hejda made no reference to any provision of the CBA.

He alleged the essential elements of the cause of action: that

Bell unlawfully discriminated against him and discharged him from

his employment because he filed a workers compensation claim and

that the nature and extent of his injury did not preclude him from

performing his job.

     As the Court concluded in Lingle, each of these allegations

presents a "purely factual inquiry" that does not require the

interpretation of any provision of the CBA.    Lingle, supra, 486

U.S. at 407, 108 S. Ct. at 1882, 100 L. Ed. 2d at 420; accord

Puglia, supra, 226 N.J. at 280. Hejda's workers compensation

retaliation claim is, therefore, "independent" of the CBA and not

pre-empted by § 301.     Puglia, supra, 226 N.J. at 282; accord

Conaway v. Webster City Products Co., 431 N.W. 2d 795, 799 (Iowa

1988).

                                 B.

     Hejda asserted his LAD disability discrimination claim in a

count that alleged:

               Hejda has a disability and is regarded
                by Bell as having a covered disability.

               Bell knew he had a disability and
                discriminated against him while he was
                impaired and because of his impairment.


                            20                             A-3502-14T1
               Hejda   made   repeated    demands   for
                reasonable accommodations.

               Hejda was "otherwise qualified for
                employment with [Bell] with or without
                reasonable accommodation."

               Bell discriminated against Hejda "in
                employment opportunity" despite the fact
                that "he was qualified for employment and
                previously performed his duties in
                accordance   with   the  terms   of   his
                employment."

               Bell failed to engage him "in a good
                faith interactive process regarding his
                requests for reasonable accommodation
                and wrongfully failed to provide [him]
                with reasonable accommodation."

               Bell retaliated against him "because of
                his disability," wrongfully altering
                "the terms and conditions of [his]
                employment based upon discriminatory and
                retaliatory intent."

     None of these allegations call for the interpretation of any

provision of the CBA.11   Whether or not a parallel avenue existed

in the CBA for Hejda to pursue his allegations, the complaint

alleges a cause of action under the LAD, which plainly establishes

rights that are independent of the CBA.

     To present a prima facie case of disability discrimination

under LAD, Hejda was required to prove: (1) he was disabled (or



11Article 19 of the CBA, titled "Non-discrimination," prohibits
discrimination based on "race, color, religion, sex, national
origin, pregnancy, or age" and does not address discrimination
based on disability.
                           21                           A-3502-14T1
perceived to be disabled); (2) he was objectively qualified for

his former position; (3) he was terminated; and (4) the employer

sought someone to perform the same work after the plaintiff's

discharge.    Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450

(2005).   If the employee establishes a prima facie case, "the

burden of production shifts to the employer      to articulate a

legitimate, nondiscriminatory reason for the employer's action."

Id. at 449.   Once that reason is articulated, it is left to the

employee to prove by a preponderance of the evidence that the

reason was merely pretextual. Ibid.

     Each of these elements presents a "purely factual inquiry."

As the Court noted in Puglia:

          Whether Puglia performed a whistleblowing
          activity in reporting the alleged failure by
          Elk   to   abide   by  Prevailing   Wage   Act
          requirements, and whether Elk retaliated
          against Puglia for doing so are factual
          questions, untied to any interpretation of the
          CBA. CEPA creates independent rights. Puglia's
          CEPA cause of action is unaffected by whether
          the CBA was violated; it asks only whether
          Puglia's whistleblowing activity played a role
          in his termination.

          [226 N.J. at 280.]

     This analysis marks a departure from the Court's decision in

Maher v. N.J. Transit Rail Operations, 125 N.J. 455 (1991).     The

plaintiff in Maher was discharged after he refused to comply with

the requirement of his employer, New Jersey Transit (NJT), to wear

                            22                             A-3502-14T1
safety glasses at all times.     Id. at 461.      He filed suit, alleging

violations of LAD and CEPA.         Id. at 463.      The Court found the

plaintiff's LAD claim pre-empted by the Railway Labor Act (RLA),

45 U.S.C.A. §§ 151 to 188.      Id. at 479.       Distinguishing Lingle,

the Court stated the defense did not "hinge on consideration of

'purely factual questions,'" and that "[a]n evaluation of whether

NJT's   actions    were   reasonable    would   have   to   be   based    on

consideration of the carrier's conduct in following provisions of

the collective-bargaining agreement."       Id. at 481.

     The term, "purely factual inquiry," is not a model of clarity

on its face.      But, the United States Supreme Court's decision in

Hawaiian Airlines provides guidance for its application.

     In Hawaiian Airlines, supra, 512 U.S. at 266, 114 S. Ct. at

2251, 129 L. Ed. 2d at 220, the Supreme Court affirmed the decision

by the Supreme Court of Hawaii that an employee's claims for

discharge in violation of public policy and a state whistleblower

act were not pre-empted by the RLA.               The Court adopted the

framework articulated in Lingle and emphasized "the existence of

a potential CBA-based remedy did not deprive an employee of

independent remedies available under state law." Id. at 261, 114

S. Ct. at 2248, 129 L. Ed. 2d at 216.           Turning to the impact of

a CBA-based defense, the Court rejected the employer's contention

"that the state tort claims require a determination whether the

                               23                                  A-3502-14T1
discharge . . . was justified by respondent's failure to sign the

maintenance record, as the CBA required him to do."         Id. at 266,

114 S. Ct. at 2251, 129 L. Ed. 2d at 220.             A distinction was

drawn between an allegation that a discharge violated the CBA,

which would require such a determination, and the state tort claims

that, "by contrast, require only the purely factual inquiry into

any retaliatory motive of the employer."      Ibid.

     In Puglia, the Court cited Hawaiian Airlines as "fortif[ying]

the view that . . . a CBA-based defense is ordinarily insufficient

to preempt a state-law action," by "explain[ing] that . . . the

issue to be decided in this action -— whether the employer's

actions make out the element of discharge under [state] law -— is

a 'purely factual question.'" 226 N.J. at 279 (quoting Hawaiian

Airlines, supra, 512 U.S. at 266, 114 S. Ct. at 2251, 129 L. Ed.

2d at 220).

     Our Supreme Court further noted the Court's rejection of the

employer's    argument   that    the   state-law   claim   required      a

determination whether its action was justified by the employee's

failure to comply with a requirement of the CBA.       Ibid.   Observing

that Maher was decided before Hawaiian Airlines, the Puglia Court

spurned the suggestion that Maher provided authority for the

proposition that a CBA-based defense would pre-empt a state-law

claim.   Id. at 280, n.4.   Our distillation of these opinions leads

                                24                               A-3502-14T1
us to conclude that the defining characteristic of a "purely

factual inquiry" is that it "does not turn on the meaning of any

provision of a collective-bargaining agreement." Lingle, supra,

486 U.S. at 407, 108 S. Ct. at 1882, 100 L. Ed. 2d at 420.

      We recognize that the question whether Hejda was "objectively

qualified" to be reinstated as a truck driver implicates the

recertification requirements of 49 C.F.R. § 391.45.            It is also

true that the CBA contains provisions relevant to this regulatory

requirement, most notably, Article 35, which states: "Physical or

other examinations (including [DOT] physicals) required by any

government body shall be promptly complied with by all Employees

. . . ."   But, contrary to the arguments advanced by Bell, neither

Hejda's claim nor Bell's defense requires the interpretation of

any   provision   of   the   CBA.   The   requirement   that    Hejda   be

recertified was not imposed by Bell in the exercise of its rights

under the CBA.    It is a function of the DOT regulation which, as

the arbitrator noted, is law that Bell is required to follow.           The

applicable regulations, 49 C.F.R. §§ 391.41, 391.43 and 391.45,12

are straightforward in their requirements.          To the extent an

interpretation of them is required, federal law must be applied.



1249 C.F.R. § 391.47 provides a procedure for the resolution of
conflicts of medical evaluations obtained by the driver and the
employer. The record does not disclose if the parties engaged in
this procedure or satisfied the criteria for its application.
                            25                            A-3502-14T1
     As we have noted, the trial judge dismissed the complaint

pursuant to Rule 4:6-2(a) for lack of subject matter jurisdiction,

and did not address the other grounds advanced by Bell in its

motion.   Accordingly, our review has been limited to that issue.

We offer no opinion as to the merits of plaintiff's claims or any

of the other arguments presented by Bell.    The order dismissing

the complaint for lack of subject matter jurisdiction is reversed

and the matter remanded.   We do not retain jurisdiction.

     Reversed.




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