                                NOT FOR PUBLICATION WITHOUT THE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-4741-17T3

FRANK RIVERA,

          Plaintiff-Appellant,

v.

TOWNSHIP OF CRANFORD,

          Defendant-Respondent.


                    Argued March 3, 2020 – Decided June 12, 2020
                    Motion for reconsideration granted.
                    Resubmitted July 6, 2020 – Decided July 10, 2020

                    Before Judges Yannotti, Currier and Firko.

                    On appeal from the Superior Court of New Jersey,
                    Law Division, Union County, Docket No. L-2829-15.

                    Lenzo & Reis LLC, attorneys for appellant
                    (Christopher P. Lenzo, of counsel and on the briefs).

                    Schenck Price Smith & King, LLP, attorneys for respondent
                    (John E. Ursin, of counsel; Sandra Calvert Nathans, on the
                    brief).
  PER CURIAM

      Plaintiff applied for a career firefighter position with defendant, Township

of Cranford. Defendant extended a conditional offer of employment to plaintiff,

subject to the results of a background investigation, drug screening, medical

examination, and psychological evaluation.

      After a comprehensive evaluation, a licensed clinical psychologist declined

to recommend plaintiff for the appointment. He concluded that plaintiff, "at this

time, does not possess the psychological characteristics deemed necessar y to

perform the duties of the position sought and is not considered to be

'psychologically suited' to that position . . . ." Because plaintiff did not pass the

psychological evaluation, defendant did not appoint him to the career firefighter

position.

      In August 2015, plaintiff filed a complaint alleging defendant violated the

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

to appoint him as a paid career firefighter. Count one alleged "actual and/or

perceived disability" discrimination. Count two alleged discrimination on the basis

of his military service.

      The complaint factually asserted, among other things, that: (1) the LAD

"prohibits employers from requiring employees to submit to medical examinations

                                           2                                 A-4741-17T3
that are not job-related"; (2) defendant "unlawfully required [plaintiff] to submit to

a pre-employment psychological evaluation that was not job-related"; and (3)

defendant's decision not to appoint plaintiff was based solely upon the results of

the psychological evaluation, which he purportedly failed. The court extended the

initial discovery end date twice, resulting in a final discovery end date of

September 29, 2017.

      On July 26, 2017, defendant moved for summary judgment. Plaintiff cross -

moved for partial summary judgment as to liability on count one, asserting that the

LAD "requires pre-employment medical examinations to be job[]related and only

used to screen out applicants whose disabilities prevent them from performing the

essential functions of the position," and that defendant had not demonstrated the

pre-employment psychological evaluation was job-related.

      After argument on October 13, 2017, the court denied both summary

judgment motions in an oral decision. After citing to relevant LAD case law and

noting the parties' respective burdens of proof, the court found numerous

unresolved factual issues. The court noted specifically the questions of fact as to

whether defendant perceived plaintiff as having a disability when it declined to hire

him, and whether plaintiff was qualified for the appointment, in light of subsequent

favorable psychological examinations for other job applications.


                                           3                                  A-4741-17T3
      The case was initially scheduled for trial on January 22, 2018. It was later

adjourned to February 20, 2018. On January 8, 2018, more than three months after

the September 29, 2017 discovery end date, plaintiff served an expert report that

addressed his economic losses resulting from defendant's alleged discriminatory

hiring practices. On January 17, 2018, defendant moved to bar the expert report

under Rule 4:23-5(b). Defendant asserted that the court had twice extended the

original discovery end date, the report was untimely, and it was prejudiced because

it could not depose the expert or obtain a rebuttal report before trial.

      In response, plaintiff cross-moved to extend expert discovery and adjourn

the February 20, 2018 trial date. Counsel certified he was unable to obtain the

economic expert report earlier "because of a factual misunderstanding" concerning

plaintiff's damages. He admitted he had not even discussed economic damages

with plaintiff until defendant requested a settlement demand prior to the December

2017 mediation date.

      On February 15, 2018, the court granted the motion to bar the untimely expert

report and denied plaintiff's cross-motion. The court concluded that counsel's

"honest mistake" did not constitute exceptional circumstances warranting a

reopening and further extension of the discovery period.




                                            4                              A-4741-17T3
      The case was tried before a jury in April and May 2018. Prior to jury

selection, the parties presented several in limine motions. Pertinent to the issues

on appeal, defendant asked the court to limit the issues before the jury to the counts

in the complaint of LAD discrimination based on an actual or perceived disability,

or military service.

      Defendant advised the court that plaintiff had attempted to assert a cause of

action of unlawful testing during the summary judgment arguments. Plaintiff

claimed that giving the psychological test to prospective firefighters was unlawful

because it was unrelated to the job duties. Defendant argued that plaintiff did not

have a witness or any expert to support this theory.           In addition, defendant

contended plaintiff was erroneous in his assertion that it was defendant's burden of

proof to validate the test. Defendant stated that in addition to the claim not being

pled in the complaint, there was no case law supporting a shift of the burden of

proof to the municipality to prove the legality of its test.

      Plaintiff responded that his challenge to the test was a form of a disability

discrimination claim, and that defendant was on notice of the claim from the

summary judgment arguments as well as from certain questions plaintiff posed of

various witnesses during depositions. He disputed the need for an expert.




                                            5                                 A-4741-17T3
      According to plaintiff, the first question on the jury verdict sheet should be:

"[D]id the defendant meet its burden of proving that the psychological test given

to [plaintiff] was related to the essential functions of the job of a paid firefighter .

. . and that it was an accurate predictor of somebody's ability to perform those job

functions[?]" If the jury answered affirmatively, plaintiff contended they would

move on to the damages question. Plaintiff's counsel conceded there was no case

law supporting his theory of burden shifting.

      The court found there was no precedent to support a shifting of the burden

of proof to defendant. The parties were instructed not to address the issue of

whether the test was unlawful in their opening statements. The court stated it

would make any additional rulings if necessary, as the case unfolded.

      At the close of plaintiff's case, defendant moved to dismiss count two,

asserting plaintiff had not presented any evidence to support his claim that his

military service was a factor in defendant's hiring process. In response, plaintiff's

counsel stated: "I don't think it's an actual [disability] discrimination case [and] I

don't think it's a military services discrimination case. It's a perceived disability

discrimination case, and the perception was based on the fact that the decision

makers knew he had a medical discharge from the military, but it's a perception of




                                            6                                   A-4741-17T3
disability discrimination." Therefore, plaintiff withdrew his actual disability and

military service discrimination claims.

      Defendant then moved for a directed verdict on the perceived disability

claim. Defendant argued there was no direct or circumstantial evidence that anyone

in the decision-making process "considered or perceived [plaintiff] to be disabled

. . . ." Instead, all of the evidence demonstrated that plaintiff was not hired because

of his poor performance on the psychological examination, not because of any

disability. Although plaintiff conceded there was no direct evidence to support his

claim, he argued there was sufficient circumstantial evidence to allow the claim to

proceed to a jury. The court denied the motion for directed verdict.

      Defendant again raised the issue concerning the lawfulness of the

psychological test that had been discussed at the start of the trial. Defendant argued

there was no evidence that the test was illegal or discriminatory. And there was no

basis to shift the burden to defendant to prove anything respecting the test. Counsel

stated the only facts before the jury were that the psychologist did not recommend

the hiring of plaintiff because of his performance on the evaluation – the failure to

answer the questions with honesty, the unwillingness to answer numerous

categories of questions and plaintiff's defensive and belligerent demeanor during

the evaluation.


                                            7                                  A-4741-17T3
       After a lengthy discussion, the court found that plaintiff needed an expert to

establish his theory that the psychological examination was unlawful because it did

not predict plaintiff's ability to perform effectively as a firefighter. In addition, the

court found there was no evidence, circumstantial or otherwise, regarding this

issue. Therefore, the court dismissed "the unpled claim" under Rule 4:37-2(b).1

       The jury found in favor of defendant on the perceived disability

discrimination claim. On May 9, 2018, the court entered a final judgment for

defendant and dismissed the complaint.

       On appeal, plaintiff challenges the following orders: (1) the May 9, 2018

order of dismissal/disposition; (2) the October 13, 2017 order denying his cross-

motion for partial summary judgment as to liability on count one; (3) the February

15, 2018 order granting defendant's motion to bar plaintiff's economic expert

report; and (4) the February 15, 2018 order denying his cross-motion to extend

expert discovery and adjourn the trial. Plaintiff has not appealed the jury's verdict.

       Plaintiff asserts that the court erred in denying his cross-motion for partial

summary judgment as to liability on count one because defendant could not prove



   1
     Plaintiff also argued briefly that defendant failed to show he was a direct threat.
   The court found the argument was inapplicable as there was no evidence that
   defendant was asserting this affirmative defense.

                                             8                                   A-4741-17T3
that the pre-employment psychological examination was job-related, or prove the

elements of the direct threat defense in order to justify the psychological

examination on public safety grounds.

         "In reviewing a grant or denial of summary judgment, [we are] bound by the

same standard as the trial court under Rule 4:46-2(c)." State v. Perini Corp., 221

N.J. 412, 425 (2015) (citations omitted). That rule requires a court to grant

summary judgment if "the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that 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." Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 528-29 (1995) (quoting Rule 4:46-2(c)).

         "The slightest doubt as to an issue of material fact must be reserved for the

factfinder, and precludes a grant of judgment as a matter of law." Akhtar v. JDN

Props. at Florham Park, LLC, 439 N.J. Super. 391, 399 (App. Div. 2015) (citation

omitted). Furthermore, "[a]ny issues of credibility must be left to the finder of

fact."    Ibid. (citation omitted).   Plaintiff alleged that defendant discriminated




                                             9                                 A-4741-17T3
against him under the LAD in failing to hire him as a career firefighter because of

a perceived disability. 2

       "The LAD is remedial legislation, intended 'to eradicate the cancer of

discrimination[,]' protect employees, and deter employers from engaging in

discriminatory practices." Acevedo v. Flightsafety Int'l, Inc., 449 N.J. Super. 185,

190 (App. Div. 2017) (alteration in original) (quoting Jackson v. Concord Co., 54

N.J. 113, 124 (1969)). "[A]n employee who is perceived to have a disability is

protected just as someone who actually has a disability" under the LAD. Grande

v. St. Clare's Health Sys., 230 N.J. 1, 18 (2017) (citations omitted); see N.J.A.C.

13:13-1.3 (explaining that a person who is perceived to be a person with a

disability, regardless of whether that person actually has a disability, is protected

by the LAD).

       "[D]irect evidence of discrimination is often not found." Myers v. AT&T,

380 N.J. Super. 443, 453 (App. Div. 2005) (citation omitted). Consequently, we

evaluate the majority of claims, which involve circumstantial evidence of

discrimination, by applying the procedural burden-shifting method utilized in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); see Zive v.


   2
     Because plaintiff later withdrew his additional claims of discrimination, we need
   only address the allegations of perceived disability.

                                           10                                 A-4741-17T3
Stanley Roberts, Inc., 182 N.J. 436, 447 (2005); Myers, 380 N.J. Super. at 45253.

Under that framework, plaintiff must initially prove the elements of a prima facie

case, as defined by the "particular cause of action." Victor v. State, 203 N.J. 383,

408 (2010).

      In order to prove a prima facie case when alleging discrimination for failure

to hire,

               [t]he plaintiff must demonstrate 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.

               [Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363,
               380 (1988) (quoting Andersen v. Exxon Co., 89
               N.J. 483, 492 (1982)).]

      "[F]or claims of disability discrimination, the first element of the prima facie

case, that plaintiff is in a protected class, requires plaintiff to demonstrate that he

or she qualifies as an individual with a disability, or who is perceived as having a

disability, as that has been defined by statute." Victor, 203 N.J. at 410. "LAD

claims based upon a perceived disability still require 'a perceived characteristic

that, if genuine, would qualify a person for the protections of the LAD.'" Dickson



                                           11                                  A-4741-17T3
v. Cmty. Bus Lines, Inc., 458 N.J. Super. 522, 532 (App. Div. 2019) (quoting

Cowher v. Carson & Roberts, 425 N.J. Super. 285, 296 (App. Div. 2012)); see

Rogers v. Campbell Foundry Co., 185 N.J. Super. 109, 112 (App. Div. 1982)

("[T]hose perceived as suffering from a particular handicap are as much within the

protected class as those who are actually handicapped.").

      Our courts characterize the prima facie burden as "rather modest." Victor,

203 N.J. at 408 (quoting Zive, 182 N.J. at 447). If the plaintiff establishes a prima

facie case, "a presumption arises that the employer unlawfully discriminated

against the plaintiff." Grande, 230 N.J. at 18 (citation omitted). Thereafter, the

burden of production shifts to the employer "to demonstrate a legitimate business

reason for the employment decision." Victor, 203 N.J. at 408 n.9. If the employer

does so, then the plaintiff must show "that the reason proffered is a mere pretext

for discrimination" in order to prevail. Ibid. (citing McDonnell Douglas Corp., 411

U.S. at 802). "The ultimate burden of persuasion that the employer intentionally

discriminated against the employee remains with the employee at all times."

Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988) (citing Andersen, 89 N.J.

at 493).




                                          12                                 A-4741-17T3
      To provide context for plaintiff's claim of discrimination for a perceived

disability, we furnish the following factual evidence from the summary judgment

record.

      In 2004, plaintiff began volunteering at the Township Fire Department as

part of the Explorer program, which allows minors to learn about firefighting. The

Fire Department consists of career paid firefighters and unpaid volunteer call

firefighters.   Both categories of firefighters are appointed by the Township

Committee. In 2006, the Township Committee appointed plaintiff as a volunteer

call firefighter. A call firefighter is not required to undergo a psychological

evaluation prior to appointment.

      The duties of paid career firefighters and unpaid call firefighters overlap in

some respects. Both perform interior firefighting during structural fires, pull down

ceilings and walls, and rescue people and animals. Both work in pairs and are

exposed to dangerous and stressful situations.      However, call firefighters are

always closely supervised by career firefighters, and are limited in the duties they

can perform. They cannot drive fire trucks, operate aerial equipment, operate the

water pump or ladder, or respond to ambulance or medical transport calls. A call

firefighter is not assigned a shift or required to work a minimum number of hours.




                                          13                                A-4741-17T3
They respond to calls when they choose to do so. In contrast, a career firefighter

must work two twenty-four hour shifts each week.

      In January 2008, plaintiff enlisted in the United States Marine Corps and

took a four-year leave of absence from the Fire Department. He served in the

Marine Corps until August 2012; at which time he was "honorably discharged for

medical reasons."

      During his military service, plaintiff served in several overseas locations,

including Kuwait and Iraq. He was disciplined twice for minor infractions and

received alcohol counseling. During his service, plaintiff was diagnosed with post-

traumatic stress disorder (PTSD) and traumatic brain injury (TBI). He underwent

therapy through the Veterans Administration (VA) in 2012 and 2013 for his

medical and psychological issues, and receives disability compensation from the

VA.

      When plaintiff returned home in 2012, he resumed serving as a call

firefighter in the Township. He never told anyone at the Township or the Fire

Department about the reason for his medical discharge from the Marines, or that

he was diagnosed with PTSD or TBI.

      However, plaintiff testified at his deposition that numerous members of the

Fire Department had expressed negative opinions about his military service and


                                         14                                A-4741-17T3
mental health when he returned from Iraq. He recounted two firefighters telling

him that they heard "others at the firehouse . . . talking negatively" about him before

he was up for appointment "and spreading rumors" that plaintiff: had a

dishonorable military discharge and a DUI; was an alcoholic; and "the military

gave [him] a stupid dog" because he was "crazy."

      Several members of the Fire Department were deposed and asked about the

alleged negative comments and rumors. Some testified they had heard negative

comments and rumors about plaintiff after he returned from overseas, while others

denied hearing any such comments or rumors.

      One firefighter, a friend, noted that plaintiff's service dog came with him to

the firehouse. He also stated that plaintiff told him and other call firefighters that

he had contemplated suicide with pills and alcohol. The firefighter denied telling

any of his superiors about that conversation. Another firefighter said he recalled

others talking negatively about plaintiff, including that he had psychological issues

and was "let go early" from the military, but no supervisors were present during

this discussion.

      Several supervisors were also deposed. One, a lieutenant, testified that he

never heard any disparaging remarks about plaintiff's military service or mental

health. He did notice that plaintiff had a service dog.


                                           15                                  A-4741-17T3
      The Fire Chief who extended the conditional offer of employment to plaintiff

was Leonard Dolan III.        He testified that defendant has required all career

firefighter applicants to undergo psychological testing since approximately 1985.

He stated the evaluations are job-specific to determine whether the candidate is

suitable for a firefighter position.

      Before the evaluation takes place, the Institute for Forensic Psychology (IFP)

requests background information from the Fire Department about the candidate

concerning "school, work, interpersonal, family, legal, financial, substance use,

[and] mental health." The Fire Chief emails IFP the background information based

upon his personal knowledge of the candidate. If the candidate satisfies all of the

hiring requirements, the Township Committee finalizes the appointment by

majority vote.

         Pursuant to this protocol, Dolan sent IFP the following email:

                 Frank is a single male who has been a member of our
                 Call Department since 2006. Frank joined the US
                 Marine Corps in 2008 and served out his enlistment but
                 I believe received a medical discharge. He was
                 deployed overseas.        Frank does not have any
                 disciplinary history with the Cranford Fire Department.
                 I'm unsure of his military disciplinary record.

      Dolan testified that he had no issues with plaintiff's performance as a call

firefighter and felt that he was qualified to be a career firefighter apart from his


                                           16                               A-4741-17T3
failure to pass the psychological evaluation. Dolan denied hearing anyone speak

negatively about plaintiff's military service or mental health or receiving any

complaints about plaintiff's performance as a call firefighter. He testified that he

never spoke to plaintiff about his military or medical history. He denied speaking

to the examining psychologist prior to plaintiff's evaluation.

      When the psychologist called Dolan to report that he was not recommending

plaintiff for appointment, Dolan testified he was "very surprised" that plaintiff did

not pass the evaluation. If not for the poor psychological evaluation, Dolan said

he would have recommended plaintiff for appointment as he "absolutely" wanted

plaintiff to be a career firefighter in the Township. Dolan believed that candidates

with military experience, like plaintiff, were "ideal" for the job.


      Shortly after these events, Daniel Czeh became the Fire Chief. He testified

that he considered plaintiff a friend and "a good firefighter." He acknowledged

that plaintiff "seemed a little bit on edge" and "aggravated" after he came back

from his military service, but he denied any concern that plaintiff "was a danger to

anyone." He stated he met with plaintiff before the psychological evaluation and

told him not to lie and to do his best, as the Fire Department wanted plaintiff to get

the paid appointment.



                                           17                                 A-4741-17T3
      Several members of the Township Committee were also deposed. They

testified that plaintiff was removed from consideration for the position due to the

psychological test results. The members confirmed that plaintiff's failure to pass

the psychological evaluation was the only reason plaintiff was not hired.

      Against this backdrop, the court considered the parties' cross-motions for

summary judgment.       In denying plaintiff's cross-motion for partial summary

judgment, the court found there was a question of fact as to whether defendant

perceived plaintiff as having a disability when it declined to hire him, stating:

               There's a question as to whether it was perceived
               because while he didn't broadcast it . . . there is
               evidence in the record that there were guys who said
               we're uncomfortable with him, he's different since he
               came back from Iraq. He's different. He is not the same
               Frankie that we knew before he left. He was a cadet
               here from 16 years old. He was a call man. He came
               back as a call man. He did everything he was supposed
               to do. He was a good fireman. The chief purports to
               say that he wanted him. He liked the kid and he wanted
               him to pass and he was surprised that he didn't pass the
               psychological examination.

      The court also found that questions of fact existed as to whether plaintiff was

qualified for appointment under the second and third elements of the prima facie

test given the subsequent favorable psychological evaluations for other subsequent




                                           18                                 A-4741-17T3
job applications, and that the proofs submitted as to the fourth element were "not

dispositive."

      There is ample evidence in the record to support the court's denial of

plaintiff's cross-motion for partial summary judgment on count one. Plaintiff

contends he never told anyone at the Fire Department or the psychologist about his

PTSD and TBI diagnoses or treatment for his conditions. The record contains no

other evidence to suggest that defendant knew plaintiff had an actual disability and

based its decision not to hire him on that fact. See, e.g., Illingworth v. Nestle

U.S.A., Inc., 926 F. Supp. 482, 489-91 (D.N.J. 1996) (holding that because the

employee never told his employer about his dyslexia, he failed to satisfy his prima

facie burden to prove disability discrimination under the LAD as he could not

establish a causal connection between his dyslexia and his termination).

      To satisfy his burden on the first Victor element, plaintiff presented evidence

that other firefighters had discussed the differences they perceived in him since his

return from military service, the fact that he had a service dog and there were

rumors about his military discharge. He also relied on Dolan's email to IFP in

which he stated that he believed plaintiff had received a medical discharge from

the military. However, general negative comments about a plaintiff's mental health

do not establish that a defendant perceived a plaintiff to be suffering from a


                                          19                                 A-4741-17T3
"particular handicap" or specific disability as defined under the LAD. Dickson,

458 N.J. Super. at 532; Rogers, 185 N.J. Super. at 112; see N.J.S.A. 10:5-5(q).

      Moreover, plaintiff's superiors denied ever hearing about any issues

stemming from plaintiff's military service or any medical diagnoses or treatment.

There is no evidence to support the conclusion that the persons responsible for

deciding whether to appoint plaintiff as a career firefighter – Dolan and the

Township Committee – had either engaged in making or had heard the negative

comments. To the contrary, Dolan conditionally appointed him to the position.

His email only serves to raise a question of fact as to whether he perceived plaintiff

as having a disability. It is unclear from the record how Dolan came to believe that

plaintiff was discharged from the military for medical reasons. Nonetheless, the

email does not mention any specific disability, and Dolan testified he would have

recommended plaintiff for appointment but for his failure to pass the psychological

evaluation.

      It cannot be disputed that numerous factual issues existed as to whether

defendant perceived that plaintiff suffered from a particular disability as defined

under the LAD. Therefore, plaintiff could not satisfy the first element of the prima

facie case test and was not entitled to partial summary judgment on that count. The




                                           20                                 A-4741-17T3
trial court's decision denying summary judgment was well-reasoned and supported

by the evidence.

      On appeal, in his reply brief, plaintiff contends that he did not need to prove

a prima facie case of actual or perceived disability discrimination because "[t]he

issue is whether [he] should have been subjected to that [psychological]

examination at all." He asserts that "[i]f the examination was unlawful, defendant's

refusal to hire [him] was also unlawful, as defendant concedes that the examination

was the only reason that it did not hire [him]."

      As stated, plaintiff's complaint contained two counts; he alleged defendant

discriminated against him under the LAD because of an actual or perceived

disability, and because of his military service. As a result, the discovery centered

on those claims.

      However, two years after the filing of the complaint, plaintiff asserted in his

cross-motion for summary judgment a claim that the psychological evaluation he

underwent was unlawful because it was not job-related. At oral argument on the

summary judgment motions, plaintiff's counsel argued this was his primary LAD

claim. Defendant challenged the propriety of plaintiff's argument as the claim was

never pled. The judge denied the motions, without comment as to the newly-raised




                                          21                                 A-4741-17T3
claim. The case proceeded to trial several months later, on plaintiff's allegations

of discrimination under a perceived disability.

      We initially note that the claim of an unlawful test is a different cause of

action than those contained within the complaint. And the factual assertions

regarding the psychological evaluation in the complaint do not equate to legal

causes of action. Despite being apprised of the omission during the summary

judgment arguments, plaintiff did not seek leave to amend the complaint to include

the claim. As explained by our Supreme Court:

               [T]he fundament of a cause of action, however
               inartfully it may be stated, still must be discernable
               within the four corners of the complaint. A thoroughly
               deficient complaint--a complaint that completely omits
               the underlying basis for relief--cannot be sustained as a
               matter of fundamental fairness. An opposing party
               must know what it is defending against; how else would
               it conduct an investigation and discovery to meet the
               claim?

               [Bauer v. Nesbitt, 198 N.J. 601, 610 (2009).]

      Nevertheless, plaintiff pursued his assertions during the trial.      At the

conclusion of the evidence, the court found the contentions required expert

testimony and plaintiff's arguments were unsupported by case law. The court

dismissed "the unpled claim."




                                          22                               A-4741-17T3
      We have considered plaintiff's contention that the judge erred by dismissing

the unpled claim regarding the psychological exam.          We are convinced the

argument lacks sufficient merit to warrant extended comment. R. 2:11-3(e)(1)(E).

We note, however, that dismissal of the claim was proper because (1) the claim

was not pled as a separate cause of action under the LAD; (2) the claim regarding

the test was subsumed in the claim based on an actual or perceived disability; and

(3) the judge correctly found that plaintiff's claim regarding the test was not

supported by sufficient evidence.

      Plaintiff also asserts error in the court's February 15, 2018 orders granting

defendant's motion to bar his expert report on economic damages and denying his

cross-motion to extend discovery. He contends that exceptional circumstances

justified the late submission of the report. However, because the jury found

plaintiff did not establish any discriminatory action by defendant, it did not reach

the damages issue. Plaintiff has not challenged the jury's verdict and therefore this

contention on appeal is moot. See Redd v. Bowman, 223 N.J. 87, 104 (2015)

(quoting Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 221-22

(App. Div. 2011)) ("An issue 'is moot when our decision sought in a matter, when

rendered, can have no practical effect on the existing controversy.'").




                                          23                                 A-4741-17T3
Affirmed.




            24   A-4741-17T3
