                                NOT FOR PUBLICATION WITHOUT THE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-4951-17T3

THOMAS GALLAGHER and
JESSICA GALLAGHER,

         Plaintiffs-Appellants,

v.

PUBLIC SERVICE ELECTRIC
AND GAS COMPANY
("PSE&G"),

     Defendant-Respondent.
___________________________

                   Submitted October 8, 2019 - Decided August 19, 2020

                   Before Judges Accurso and Gilson.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Essex County, Docket No. L-0128-16.

                   Richard S. Mazawey, attorney for appellants.

                   Morgan, Lewis & Bockius LLP, attorneys for
                   respondent (Sean P. Lynch and Jason J. Ranjo, of
                   counsel and on the brief).

PER CURIAM
      Plaintiff Thomas Gallagher 1 appeals from a summary judgment

dismissing his complaint against defendant Public Service Electric and Gas

Company alleging wrongful discharge and failure to reasonably accommodate

his disability under the Law against Discrimination (LAD), N.J.S.A. 10:5-1 to

-49. He also appeals from the denial of his cross-motion to compel discovery.

Because the material facts are not in dispute and defendant is entitled to

judgment as a matter of law, we affirm.

      The essential facts are few and easily summarized. Plaintiff was a long-

time employee of PSE&G. His last position with the company was as a

service technician, installing, servicing, and repairing heaters, boilers, air

conditioners, sump-pumps, and roof-top heating and air-conditioning units in

both residential and commercial buildings. The job was physically demanding,

requiring a great deal of standing, bending and climbing ladders. Plaintiff

regularly used both hand and power tools, and had to manage equipment

permitting him to hoist components weighing up to 800 pounds.



1
  Plaintiff also brought claims of intentional and negligent infliction of
emotional distress, which his wife joined per quod. Because plaintiff does not
address those claims in his merits brief, we consider them abandoned. See
Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, Div. of Law,
421 N.J. Super. 489, 496 n.5 (App. Div. 2011); Pressler & Verniero, Current
N.J. Court Rules, cmt. 4 on R. 2:6-2 (2011).
                                                                            A-4951-17T3
                                         2
      Plaintiff was working in a PSE&G customer's attic in June 2011, when

he fell through planks covering "an undisclosed shutter hole," injuring his

head, neck, right shoulder, back and both hips. He was out of work through

August. In September, plaintiff returned to a "light duty" position, which he

characterized as "[sitting] in a room at the PSE&G office." In January 2012,

plaintiff underwent hip surgery, and was out of work until March. He returned

on light duty for a week in March, calling customers to schedule times to

change their gas meters. In April, plaintiff suffered a brain aneurysm, which

he claims occurred as a result of his work-related accident. He has never

returned to work.

      In December 2012, plaintiff applied for social security disability

benefits, certifying he was permanently disabled. He was approved for social

security disability benefits in June 2012. A physician certified in 2013 in

plaintiff's worker's compensation action that he was completely and

permanently disabled as a result of his accident due to his cognitive and

vestibular symptoms and substantial neck pain, back pain, and headaches.

      PSE&G terminated plaintiff's employment in January 2014 because, as

plaintiff admits, even after a two-year absence, "he was physically incapable of

performing his job with or without a reasonable workplace accommodation,


                                                                           A-4951-17T3
                                       3
and he could not provide any reliable date when he would be able to return to

work."

      Plaintiff filed a personal injury action against the PSE&G customer in

whose attic he was injured. He testified at trial in that case in 2017, three

years after his termination, that his physical limitations were so severe that

they prevented him even from performing chores around the house, and that "it

wouldn't be practical for an employer to hire [him] whether part-time or full-

time," given his medical issues. Plaintiff also presented the testimony of a

neuropsychologist, who opined plaintiff would not "be capable of going back

to his prior occupation in PSE&G," and that he could not "handle any

competitive 40-hour a week job, because of the demands on him physically

and mentally."

      Finally, plaintiff presented a vocational expert in that suit, who testified

plaintiff was "unable to perform" his past job as a service technician and that

the skills he acquired in that position "are not transferable." That expert

testified that plaintiff could not do any work "on a sustained, regular, full-time

basis, meaning eight hours per day five days per week" and was

"unemployable for any job in the competitive labor market." The jury

rendered a judgment for plaintiff, awarding him damages.


                                                                           A-4951-17T3
                                        4
      Plaintiff testified at deposition in this case that at no point between his

injury in 2012 and his deposition in 2017 was he physically able to climb

ladders, carry heavy equipment, use tools or perform his job as a service

technician. Plaintiff testified he has difficulty carrying a gallon of milk and

cannot stand or bend for long periods. He also testified at deposition that he

still suffers from cognitive impairments and balance issues, and that "fast

pace[d], multiple jobs" are "too much" for him.

      Following discovery, PSE&G moved for summary judgment, contending

the bulk of plaintiff's claims were barred by the two-year statute of limitations

under the LAD; that plaintiff could not establish a prima facie case of

disability discrimination because he admits he was not physically able to

perform his job as a service technician with or without an accommodation; that

plaintiff was judicially estopped from arguing otherwise in light of his

representations to the Social Security Administration and his testimony in his

personal injury action and that of his experts; and that further discovery would

not alter those facts, which are conclusive of his claims.

      Plaintiff opposed the motion, contending his claims were not barred by

the statute of limitations and "just because [he] was occupationally disabled as

a . . . heating/air-conditioning service technician, does not mean that he was


                                                                           A-4951-17T3
                                         5
not employable based on his years of experience and expertise in the field to

work for PSE&G in another capacity and be provided reasonable

accommodations for the disability."

      Plaintiff argued he was not judicially estopped from arguing he was

employable in another capacity because the legal theories in his personal

injury action were different "and the jury did not find that [he] suffered a

permanent brain injury, and only found that his injuries were orthopedic in

nature," and thus that the jury did not find him "permanently an d completely

disable[d]." 2 Plaintiff claimed that his inability to return to the job was as a

result of PSE&G mismanaging his recovery, and that given "accommodation

and adequate, proper, reasonable and necessary/prescribed medical

care/treatment which was to be orchestrated and controlled by PSE&G, [he]

would have been able to rehab himself back to a level of satisfactory


2
  Although plaintiff repeats those claims on appeal, he offers no citation to the
record to permit us to confirm his assertion. He also fails to explain why,
given he asserted in his personal injury case that he could not work in any
capacity and obtained a judgment in his favor, that he should not be barred
from taking a contrary position here. See Bhagat v. Bhagat, 217 N.J. 22, 36
(2014) (explaining that "[a] party who advances a position in earlier litigation
that is accepted and permits the party to prevail in that litigation is barred from
advocating a contrary position in subsequent litigation to the prejudice of the
adverse party"). Because, like the trial judge, we consider plaintiff's
admissions in this matter dispositive of his claim, we need not consider this
issue further.
                                                                            A-4951-17T3
                                         6
employability." Plaintiff also argued that with discovery, he could "prove that

over 96 other employees, all with troubled backgrounds and with similar

and/or different circumstances (i.e., alcohol/drug abuse, injuries, criminal

records), were all given continuous employment with PSE&G and provided

reasonable accommodations for said employment."

      After hearing argument, the trial court granted PSE&G's motion, and

denied plaintiff's cross-motion for discovery. The judge found she didn't need

to address PSE&G's arguments that plaintiff's claim was time-barred or that he

was judicially estopped from arguing he was employable in some capacity,

contrary to the positions taken in his social security claim and personal injury

actions, because plaintiff, by his own admissions in this action, could not

establish a prima facie case of disability discrimination.

      Specifically, the court relied on the express provision of N.J.S.A. 10:5-

4.1, in which the Legislature directed that the LAD "shall be construed to

prohibit any unlawful discrimination against any person because such person is

or has been at any time disabled or any unlawful employment pract ice against

such person, unless the nature and extent of the disability reasonably precludes

the performance of the particular employment." Because plaintiff admitted on

the motion that he could not perform his former job as a service technician, his


                                                                         A-4951-17T3
                                        7
"particular employment," with or without an accommodation, the judge found

he could not establish either a failure to accommodate or wrongful termination

claim under the LAD.

      The judge rejected plaintiff's argument that PSE&G's alleged

mismanagement of his recovery altered the analysis. The judge noted that

plaintiff's medical treatment for his work-related injury was within the

jurisdiction of the workers' compensation court and that plaintiff was

precluded by the exclusivity provision of the Workers' Compensation Act,

N.J.S.A. 34:15-8, from bringing a claim in the Law Division that PSE&G

negligently attended to plaintiff's recovery. Because plaintiff's admission that

he could not perform his former job with or without an accommodation was

dispositive of his cause of action, the judge found additional discovery related

to other employees was unwarranted and denied his cross-motion to compel

production of other employees' personnel records.

      Plaintiff appeals, reprising the arguments he made in opposition to the

motion. We agree with the trial court that summary judgment was properly

granted, and that further discovery would not change the outcome.

      Plaintiff's admission in this action, six years after his accident, that he

cannot perform the job he formerly held as a service technician for PSE&G,


                                                                            A-4951-17T3
                                         8
with or without accommodation, makes plain he cannot establish a claim for

disability discrimination under the LAD, whether for wrongful termination or

for failure to make reasonable accommodations. See Clowes v. Terminix Int'l,

Inc., 109 N.J. 575, 594 (1988) (noting "[t]he Law does not prohibit

discrimination against the handicapped where 'the nature and extent of the

handicap reasonably precludes the performance of the particular employment '"

(quoting N.J.S.A. 10:5-4.1)). As the Supreme Court has explained, "[t]he

second element [of a prima facie case of disability discrimination] requires

[the] plaintiff to demonstrate that he or she is qualified to perform the essential

functions of the job, or was performing those essential functions, either with or

without a reasonable accommodation." Victor v. State, 203 N.J. 383, 410

(2010). "The LAD 'leave[s] the employer with the right to fire . . . employees

who are unable to perform the job, "whether because they are generally

unqualified or because they have a handicap that in fact impedes job

performance.'"" Raspa v. Office of Sheriff of Cty. of Gloucester, 191 N.J. 323,

336-37 (2007) (quoting Jansen v. Food Circus Supermarkets, Inc., 110 N.J.

363, 374 (1988)).

      Plaintiff admits again in his brief on appeal that he "could not perform

his job with or without accommodation and he could not provide a date that he


                                                                           A-4951-17T3
                                         9
could return to work." Although he claims that was "because of PSE&G's

careless, negligence and maladministration of his [workers' compensation]

medical care," we agree with the trial judge that that claim is one for the

workers' compensation court and not the Law Division. Because the

undisputed facts establish that "the nature and extent" of plaintiff's "disability

reasonably preclude[d] the performance of [his] particular employment" as a

heating and air-conditioning service technician, N.J.S.A. 10:5-4.1, and his

disability "would prevent [him] from performing [that] particular job,"

N.J.S.A. 10:5-29.1, with or without an accommodation, plaintiff, as a matter of

law, could not establish his prima facie case. See Raspa, 191 N.J. at 338-39;

see also Grande v. Saint Clare's Health Sys., 230 N.J. 1, 18-21 (2017).

Accordingly, we affirm the summary judgment dismissing his complaint and

his cross-motion for additional discovery.

      Affirmed.




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