                         NOT FOR PUBLICATION WITHOUT THE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-3924-16T3

ROBERT BENNING,

              Plaintiff-Appellant,

v.

MIDDLESEX REGIONAL
EDUCATIONAL SERVICES
COMMISSION,

          Defendant-Respondent.
___________________________________

              Argued June 7, 2018 – Decided June 25, 2018

              Before    Judges    Haas,    Rothstadt     and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              5832-13.

              Thomas A. McKinney argued the cause for
              appellant   (Castronovo  &   McKinney,   LLC,
              attorneys; Thomas A. McKinney and Megan Frese
              Porio, of counsel and on the briefs).

              Eric L. Harrison argued the cause for
              respondent (Methfessel & Werbel, attorneys;
              Eric L. Harrison, of counsel; Raina M. Pitts,
              on the brief).

PER CURIAM
     In September 2013, plaintiff Robert Benning filed a one-count

complaint     against       defendant    Middlesex      Regional    Educational

Services     Commission.        He    claimed    defendant      terminated       his

employment in violation of the Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49, because he had a disability.                     The trial

court     subsequently      granted     defendant's     motion     for     summary

judgment,     and     dismissed      plaintiff's     complaint.          Plaintiff

appealed, and we reversed and remanded for a trial on the genuine

issues of material fact that permeated the case.                       Benning v.

Middlesex Reg'l Educ. Servs. Comm'n, No. A-0377-15 (App. Div. Nov.

23, 2016).

     On remand, a different trial judge conducted a six-day jury

trial, and the jury returned a unanimous verdict in favor of

defendant. On April 7, 2017, the judge entered a conforming order,

and dismissed plaintiff's complaint with prejudice.                 This appeal

followed.

     On    appeal,     plaintiff     contends    that   the    judge     erred    by

permitting defendant to present testimony that one of plaintiff's

supervisors     had    previously       worked   without      incident    with     a

similarly,    but     not   identically,     situated    individual       who    was

disabled and, like plaintiff, had worked with a job coach to assist

him in performing his assigned tasks.              Plaintiff also argues for

the first time on appeal that the judge committed plain error by

                                         2                                 A-3924-16T3
failing to strike some comments defendant's attorney made in his

opening and closing statements to the jury.                     Having considered

these contentions in light of the record and applicable principles

of law, we affirm.

      By   way    of    background,     the   LAD    prohibits     discriminatory

employment practices.          Viscik v. Fowler Equip. Co., Inc., 173 N.J.

1, 13 (2002).         To prove employment discrimination under the LAD,

New   Jersey     courts      have   adopted   the    burden-shifting      analysis

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

802, (1973); Viscik, 173 N.J. at 13-14.               Under that analysis, the

plaintiff must first present sufficient evidence to establish a

prima facie case of unlawful discrimination.                    Dixon v. Rutgers,

110 N.J. 432, 442 (1988) (citing McDonnell Douglas, 411 U.S. at

807; Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 82-83

(1978)).      The defendant then has the burden to present evidence

establishing      a    legitimate,     non-discriminatory        reason   for   its

employment action.           Dixon, 110 N.J. at 442 (citing Peper, 77 N.J.

at 83). If the defendant presents such evidence, the burden shifts

back to the plaintiff to prove that the defendant's proffered

reasons are merely a pretext for unlawful discrimination.                    Ibid.

(citing Peper, 77 N.J. at 83).

      "[I]t      is    not   the    purpose   of    the   LAD   'to   prevent   the

termination or change of the employment of any person who in the

                                          3                                A-3924-16T3
opinion of the employer, reasonably arrived at, is unable to

perform adequately the duties of employment[.]'" Jason v. Showboat

Hotel & Casino, 329 N.J. Super. 295, 302-03 (App. Div. 2000)

(quoting N.J.S.A. 10:5-2.1).          Rather, "[i]n order to sustain a

claim of unlawful discrimination under [the LAD], there must be

proof of an intent to discriminate for an unlawful purpose."

Kearny Generating Sys., Div. of Pub. Serv. v. Roper, 184 N.J.

Super. 253, 261 (App. Div. 1982); see also Jones v. Coll. of Med.

&   Dentistry,    155    N.J.    Super.    232,   236    (App.     Div.     1977)

("Discrimination involves the making of choices.               The statute does

not proscribe all discrimination, but only that which is bottomed

upon   specifically      enumerated    partialities      and    prejudices.").

Thus, discriminatory motive or intent "is a crucial element in a

discrimination case[.]"         Goodman v. London Metals Exch., Inc., 86

N.J. 19, 30 (1981).

       The   parties    are   fully   familiar    with   the    testimony      and

documentary evidence each presented at trial in an attempt to

satisfy their respective burdens under the McDonnell-Douglas test.

Therefore, a brief summary will suffice here.

       Plaintiff suffers from a cognitive impairment resulting from

an episode of cardiac arrest he suffered over thirty years ago.

In September 2006, defendant hired plaintiff on a year-to-year

contract basis as a teacher's aide, but he soon began working in

                                       4                                  A-3924-16T3
defendant's schools as a full-time custodian.      These schools serve

students with disabilities, who often are unable to properly care

for themselves.    Therefore, the custodian's job is particularly

important because the students need a clean, safe environment

during the school day.

     Between 2006 and 2009, defendant gave plaintiff "good" and

"satisfactory"     ratings   on   his   periodic    job   performance

evaluations.     In November 2010, however, defendant received an

evaluation that stated he needed improvement in six areas, which

represented a dramatic falloff in his performance from previous

evaluations. Plaintiff alleged that the poor evaluation was issued

because he told his supervisor, who had completed all of the prior

evaluations, that he was disabled.

     Defendant and the supervisor disputed this claim. In addition

to carefully documenting their reasons for the November 2010

evaluation and the many more that followed, defendant asserted

that its mission was to serve individuals with disabilities, not

to discriminate against them.     The supervisor also testified that

he worked with and accommodated another full-time custodian, B.E.,1

who "had some heart issues" and needed extra assistance to complete

his work.   Over plaintiff's objection, defendant also presented


1
  We use initials to protect the privacy of defendant's employees
because they are not parties to this appeal.

                                   5                           A-3924-16T3
testimony that E.M., a former student with Downs Syndrome, had

worked part-time assisting the custodians with the help of a job

coach for a number of years following his graduation without

incident or complaint prior to plaintiff becoming a custodian in

defendant's schools.

     In line with this prior history, defendant held a series of

meetings over the next three years with plaintiff to develop plans

and accommodations that would enable him to continue to work as a

custodian.   On his own, plaintiff also arranged with the Division

of Vocational Rehabilitation for job coaches to work with him to

improve his performance.

     The job coaches alleged that with their assistance, plaintiff

was doing a good job between 2011 and 2013.     One of plaintiff's

co-workers, D.K., made a similar claim.2      However, defendant's

supervisors continued to evaluate his performance as poor.         In

2011, defendant's primary supervisor recommended that defendant

terminate plaintiff's employment.     However, defendant extended

contracts to plaintiff for the 2011-2012 and 2012-2013 school

years even though he continued to receive sub-par evaluations

during this period.




2
  Defendant alleged that D.K. was a disgruntled employee, who had
been dismissed from employment because of his own poor performance.

                                 6                          A-3924-16T3
     In 2012, defendant transferred plaintiff to another school,

where a new job coach was assigned to help him.   Plaintiff alleged

that defendant set him up to fail in this new post because he was

now responsible for handling a shift by himself and he was unable

to do so.   He also alleged that his primary supervisor and the

school principal spent most of their time trying to document his

failings, rather than helping him.

     At the conclusion of the school year in 2013, defendant did

not rehire plaintiff, and he filed his disability discrimination

complaint against defendant later that year.   On these facts, the

jury found that plaintiff's claim lacked merit, and the trial

judge dismissed plaintiff's complaint with prejudice.

     In Point I of his brief, plaintiff argues that the trial

judge erred by denying his pre-trial request to bar defendant from

presenting any testimony regarding its interactions with E.M.      We

disagree.

     Our standard of review of a trial court's decisions on

evidentiary questions is well settled.   "When a trial court admits

or excludes evidence, its determination is 'entitled to deference

absent a showing of an abuse of discretion, i.e., [that] there has

been a clear error of judgment.'"    Griffin v. City of E. Orange,

225 N.J. 400, 413 (2016) (alteration in original) (quoting State

v. Brown, 170 N.J. 138, 147 (2001)).     "Thus, we will reverse an

                                7                           A-3924-16T3
evidentiary ruling only if it 'was so wide [of] the mark that a

manifest denial of justice resulted.'"                  Ibid. (quoting Green v.

N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).                        Applying this

highly deferential standard of review, we discern no basis for

disturbing    the     trial     judge's      decision    allowing      defendant         to

provide testimony about E.M.

       Plaintiff argues that this testimony was "irrelevant to any

facts at issue[,]" primarily because E.M. was not a full-time

custodian     and,     therefore,      was       not   identically       situated        to

plaintiff.    However, this evidence was plainly relevant because a

plaintiff in a LAD case is required to demonstrate that the

defendant had an "intent to discriminate for an unlawful purpose."

Roper, 184 N.J. Super. at 261.               Therefore, defendant was clearly

permitted to show that it lacked this required intent as part of

the burden shifting paradigm established in McDonnell-Douglas.

       Accordingly, defendant presented testimony that it operated

a   school    system     that    was      specifically        designed       to    assist

individuals with disabilities similar to, and different from,

plaintiff's specific condition.              Defendant also produced evidence

that   its   staff,    including       the       supervisor   who   was      evaluating

plaintiff's    performance,        had       worked    with    B.E.,     a    full-time

custodian with a heart condition, and E.M., a part-time worker,

who was hired to assist the custodians despite his disability.

                                             8                                    A-3924-16T3
     This    evidence     was     obviously    relevant       because      it    had    "a

tendency in reason to prove or disprove any fact of consequence

to the determination of the action[,]"                 N.J.R.E. 401; that is,

whether defendant and its supervisory staff had an intent to

discriminate      against       plaintiff      for     an     unlawful          purpose.

Therefore, the judge did not abuse her discretion by denying

plaintiff's request to bar this testimony.

     We also reject plaintiff's contention that the testimony

about   E.M.    was     "unduly    prejudicial"       to    him.        Contrary        to

plaintiff's allegations, defendant's non-discriminatory treatment

of E.M. was not the lynchpin of its defense.                   Instead, defendant

primarily      relied    upon     the   documentation         it    amassed       during

plaintiff's     employment        concerning    his    poor        performance,        and

evidence of its many attempts to accommodate his disability so

that he could remain employed.               While plaintiff objected to the

testimony concerning E.M., he lodged no complaint when defendant

presented      similar     evidence     concerning         B.E.,     and    testimony

concerning      its     overall    mission     to     serve    individuals           with

disabilities.         The testimony was not "inflammatory" in any way

and, as stated above, directly addressed plaintiff's allegation

that defendant intentionally discriminated against him on the

basis of his disability.



                                         9                                       A-3924-16T3
     Plaintiff's argument that defendant failed to disclose that

it planned to discuss its relationship with E.M. at trial is also

without merit.       In his written discovery requests, plaintiff only

asked for information concerning custodians employed from 2009 to

the present.        Because E.M. left defendant's employ prior to 2009,

defendant had no obligation to include him in its response to this

inquiry.    However, plaintiff's supervisor testified about E.M. at

his deposition in December 2014, more than two years before the

trial began.        Even though plaintiff was therefore fully aware of

E.M. and defendant's positive employer-employee relationship with

him, plaintiff never asked for any additional discovery concerning

this former employee.           Under these circumstances, plaintiff can

certainly     not    complain    that   he     was   unfairly   surprised   when

defendant sought to introduce this already-discovered evidence at

the trial.3

     Turning to Point II, plaintiff argues that the trial judge

erred by not striking certain comments defense counsel made in his

opening and closing statements.              Again, we disagree.

     It is well settled that courts "afford counsel broad latitude

in closing arguments."          Tartaglia v. UBS PaineWebber, Inc., 197


3
   In this regard, the judge limited defendant to discussing only
the specific matters the supervisor relayed at his December 2014
deposition.   Therefore, plaintiff knew the exact scope of the
proffered testimony before it was presented.

                                        10                              A-3924-16T3
N.J. 81, 128 (2008) (citing Bender v. Adelson, 187 N.J. 411, 431

(2006)).    In fact, "[c]ounsel may argue from the evidence any

conclusion which a jury is free to reach."    Colucci v. Oppenheim,

326 N.J. Super. 166, 177 (App. Div. 1999).     "[C]ounsel may [also]

draw conclusions even if the inferences that the jury is asked to

make are improbable, perhaps illogical, erroneous or even absurd."

Bender, 187 N.J. at 431 (quoting Colucci, 326 N.J. Super. at 177).

       If counsel does not object to comments made by opposing

counsel in his or her arguments to the jury, we "review these

remarks under the plain error standard."     Tartaglia, 197 N.J. at

128.    Therefore, we "must determine whether defense counsel's

comments had the 'clear capacity for producing an unjust result.'"

Ibid. (quoting State v. Melvin, 65 N.J. 1, 18 (1974)).

       Applying this standard, we discern no error, much less plain

error, that would justify disturbing the jury's verdict.     In his

opening statement, defense counsel stated that "[i]n 2010 to 2013

[plaintiff's] performance deteriorated."     In his final summation,

the attorney acknowledged that defendant was not disputing that

plaintiff had a disability, but also stated, "[w]e don't know if

it's progressive" and that "[b]rain injuries are mysterious."

Plaintiff's attorney did not object to any of these comments.

       On appeal, however, plaintiff argues for the first time that

the remarks were not based on the evidence presented at the trial

                                 11                          A-3924-16T3
because no medical testimony of any kind was presented concerning

plaintiff's specific condition.      Therefore, he argues that because

the judge did not sua sponte strike these comments from the record,

he is entitled to a new trial.

     This contention lacks merit.        Defense counsel's remarks were

clearly fair comment on the evidence presented.                     Plaintiff's

performance over the three years prior to his termination had

"deteriorated"    in   defendant's       view   because        he     was    not

satisfactorily   completing   the    same   tasks   he   had    successfully

performed in the preceding years.

     The obvious purpose of the attorney's comments concerning the

possible role plaintiff's condition played in his plummeting job

evaluations was to drive home the point that an employer may

terminate a disabled employee for poor performance especially

where, as here, the employer makes accommodations to bring him

back to the level of performance he previously delivered while

employed by the defendant.    Dixon, 110 N.J. at 442.

     Finally, the judge cautioned the jurors that the attorney's

comments were not evidence in her final charge to them.                Thus, we

cannot conclude that defense counsel's statements had the capacity

to cause the jury to deliver a verdict it otherwise would not have

reached.   See R. 2:10-2; Tartaglia, 197 N.J. at 128.

     Affirmed.

                                    12                                  A-3924-16T3
