NJ Appellate Division Rules No Age or Disability Bias in Termination of 60-Year-Old Employee

On March 29, 2023, the New Jersey Appellate Division affirmed an employer’s win after a former employee claimed he was fired on the basis of his age and disability. In Estate of Zoto v. Cellco Partnership d/b/a Verizon Wireless, Inc., the Appellate Division ruled that where an employee offers no evidence of age discrimination and fails to submit any documentation of a medical disability to his employer, there is no violation of the New Jersey Law Against Discrimination (NJLAD).

FACTS

In 2013, at the age of 58, Drini Zoto (Zoto) began his employment with Verizon Wireless (Verizon) as an electronic systems engineer and computer programmer, which was an office desk-job. In mid-April 2016, Verizon’s union employees went on strike. The striking employees were responsible for maintaining landline telephone, internet, and television services. In response to the strike, Verizon assigned Zoto and hundreds of other employees to perform roles outside their usual job assignments, known as emergency work assignments (EWAs), to avoid service disruptions.

As one of the EWAs, Zoto was assigned as a field telephone pole lineman, which had physical requirements, including climbing ladders, telephone poles, and heavy lifting. Zoto, 60 years old at the time of the assignment, expressed he was in “reasonably good health” but informed Verizon that he had high blood pressure, vertigo, and a fear of heights, and could not perform the assignment. He was advised to apply for an exception through the Verizon online portal, and all medical exception requests would be reviewed and assessed by a third-party administrator (TPA). If the TPA approved the request, Verizon would provide an accommodation, reassign the employee, or allow the employee to return to his regular job. Zoto was warned that he would be terminated if did not qualify for an accommodation and refused the EWA. Remarkably, Zoto never applied for an exception because he claimed he could not find the appropriate categories that fit his request on the portal. He refused to accept the assignment and was terminated for job abandonment a few days later.

TRIAL COURT DECISION

Zoto filed suit alleging age and disability discrimination under the NJLAD and wrongful termination. Verizon argued that Zoto failed to make a case for disparate treatment based on age and failure to accommodate under the NJLAD based on a disability. Verizon maintained that based on Zoto’s deposition testimony and lack of medical evidence, he was never actually “disabled”, so he could not proceed with these claims based on a non-existent disability. Zoto maintained that the process for granting an exception to the EWA was “arbitrary and capricious,” and there was nothing in the Verizon handbook about mandatory EWAs. He also argued that Verizon violated the NJLAD by failing to screen its employees “based on age and physical ability for the telephone pole lineman position,” and that they wrongfully terminated him because he could not safely perform the job requirements of a telephone pole lineman due to his age. The trial court denied Verizon’s motion for summary judgment and found it was not yet clear whether Zoto was improperly terminated and thus clear issues of fact remained.

Verizon sought reconsideration of the trial court’s decision. The trial court thereafter found that Zoto was not disabled under the NJLAD and “has never been deemed disabled by a medical doctor.” The court rejected Zoto’s argument that old age implies a disability, especially when Zoto represented he was in “reasonably good health.” The court also found Zoto’s wrongful termination claim failed because he was an at-will employee who was terminated for his refusal to accept the EWA, and not because of his age. While his case was on appeal, Zoto passed away and his estate was substituted in the case.

APPELLATE COURT DECISION

The Appellate Court agreed that the trial court did not err on reconsideration in dismissing the lawsuit in favor of Verizon. With regard to age discrimination, Zoto produced no evidence that Verizon terminated him because of his age, or that the termination was motivated by discriminatory intent. Zoto was unable to provide any evidence his age was a factor for either the EWA or termination of his employment. In addition, Zoto offered no evidence that Verizon was aware of his age when assigning the EWA. As such, this claim failed.

In assessing Zoto’s claim that Verizon failed to accommodate his disability, the Appellate Division found that Zoto presented no evidence of a disability that would entitle him to an accommodation. Zoto also never presented documentation of a medical disability to Verizon, and he testified during a deposition that he had never been disabled. He also failed to submit his request for an exception, despite his employer advising him of what steps to take, and the consequences of rejecting the EWA. Notably, Verizon demonstrated that 241 employees were given EWAs and 108 sought some kind of exception, with 60 exemptions eventually being granted for medical reasons.

Zoto also claimed that Verizon violated public policy based on the New Jersey Health and Safety Act (HSA). He argued that the EWA violated the HSA because he reasonably believed he would be placing himself and others at risk because of his inability to perform the physical requirements of the involuntary EWA. The Appellate Division rejected this argument and found that if Zoto’s health was jeopardized by assuming the EWA, Zoto could have followed his employer’s instructions for requesting an exception, which would have allowed the TPA to evaluate his medical records and Verizon to determine whether he receive an accommodation. Accordingly, the Court agreed with the trial court and dismissed the lawsuit in favor of Verizon.

THE BOTTOM LINE

This decision underscores the importance of documenting that an employee’s age was not a factor in making work assignments or terminating employment. Additionally, where an employee fails to cooperate in the interactive process by failing to provide the employer with medical records evidencing a need for a workplace accommodation, a disability discrimination claim will also fail as there is no requirement to accommodate an unknown disability.

For more information regarding this decision and best practices for accommodations in the workplace, please contact John C. Petrella, Esq., lead Partner of the firm’s Employment Law & Litigation practice via email here or Dina M. Mastellone, Esq., lead Partner of the firm’s Human Resources Counseling & Compliance practice via email here, or call 973.533.0777.