SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1637-15T4

JOSHUA MCLAURIN,

Plaintiff-Appellant,

v.

GENERAL NUTRITION CENTERS,

INC. AND GENERAL NUTRITION

CORPORATION,

Defendants-Respondents.

______________________________

Submitted March 8, 2017 – Decided

Before Judges Simonelli and Gooden Brown. 

On appeal from the Superior Court of New 

Jersey, Law Division, Sussex County, Docket 

No. L-0490-13.

Morris, Downing & Sherred, LLP, attorneys for 

appellant (Paul G. Hunczak, of counsel and on 

the briefs; Douglas C. Gray, on the briefs).

Margolis Edelstein, attorneys for respondents 

(Emery J. Mishky, of counsel; Victoria J. 

Adornetto, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

May 25, 2017
2 A-1637-15T4

PER CURIAM

In this employment matter, plaintiff Joshua McLaurin asserted 

claims against defendants General Nutrition Centers, Inc. and 

General Nutrition Corporation (collectively GNC) under the New 

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

for failure to accommodate, wrongful termination, failure to 

engage in the interactive process, and retaliation. Plaintiff 

alleged he had requested a one-month medical leave "for medical 

stabilization of a mental health condition and treatment of a knee 

injury," and was terminated "because of his temporary disabilities 

and/or because of his request and need for a temporary leave to 

seek treatment for these disabilities." 

The trial court granted summary judgment to GNC, finding that 

plaintiff showed he had a disability for purposes of the LAD, but 

failed to show he requested an accommodation. We disagree with 

the court's first finding, but agree with the second. Accordingly, 

we affirm.

"[W]e review the trial court's grant of summary judgment de 

novo under the same standard as the trial court." Templo Fuente 

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 

(2016) (citation omitted). Thus, we consider, as the trial court 

did, "whether the competent evidential materials presented, when 

viewed in the light most favorable to the non-moving party, are 
3 A-1637-15T4

sufficient to permit a rational factfinder to resolve the alleged 

disputed issue in favor of the non-moving party." Davis v. 

Brickman Landscaping Ltd., 219 N.J. 395, 406 (2014) (quoting Brill 

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "If 

there is no genuine issue of material fact, we must then 'decide 

whether the trial court correctly interpreted the law.'" DepoLink 

Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.

325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc.,

396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 

N.J. 419 (2008)). We review issues of law de novo and accord no 

deference to the trial judge's conclusions on issues of law. 

Nicholas v. Mynster, 213 N.J. 463, 478 (2013). 

Because the court's ruling in this case involved an issue of 

law, our review is de novo. On de novo review, we are not bound 

by the trial's court's factual findings and conclusions and may 

make our own findings and conclusions based upon the record below. 

Grasso v. Borough Council of Glassboro, 205 N.J. Super. 18, 25 

(App. Div. 1985), certif. denied, 103 N.J. 435 (1986). 

Accordingly, we derive the following facts from our de novo review 

of the evidence submitted by the parties in support of, and in 

opposition to, the summary judgment motion, viewed in the light 

most favorable to plaintiff. Angland v. Mountain Creek Resort, 
4 A-1637-15T4

Inc., 213 N.J. 573, 577 (2013) (citing Brill, supra, 142 N.J. at 

523).

In 2009, plaintiff's treating physician, Anthony DePaola, 

M.D., diagnosed him with anxiety disorder and began prescribing 

Xanax on an as-needed basis for panic attacks. In 2010, Dr. 

DePaola treated plaintiff for a right knee injury. 

On November 20, 2012, plaintiff began his employment with GNC 

as a part-time sales associate at a store in Montague. The record 

does not reveal that plaintiff notified GNC of his mental health 

or physical condition. Plaintiff claimed that he re-aggravated 

his knee injury in early 2013, but the record does not reveal he 

notified GNC of this event.

In January 2013, plaintiff was promoted to store manager and 

began a ninety-day probationary period. He began taking Xanax 

every day for panic attacks. 

On March 15, 2013, plaintiff closed the store during business 

hours without GNC's approval. GNC's disciplinary policy provided 

that an employee was subject to discharge for an unauthorized 

closing of a store without proper, advance notification. When 

confronted about the store closure, plaintiff said he was allergic 

to bees and there were bees in the store. Because GNC Human 

Resources personnel considered an allergy to bees an extenuating 

circumstance, plaintiff was not discharged. However, subsequent 
5 A-1637-15T4

inspections by a pest control company did not reveal any live bee 

or wasp activity inside the store, and plaintiff admitted during 

his deposition that he was not allergic to bees. Nonetheless, GNC 

did not discharge him for the unauthorized store closing.

Plaintiff was scheduled to be off from work on March 16 and 

17, 2013. He claimed that by March 17, 2013, he was suffering 

from twice-weekly panic attacks and constant knee pain, and decided 

he needed immediate treatment. On March 17, 2013, he advised his 

direct supervisor, Joseph Zaijek, that he would be absent from 

work on March 18, 2013, because he was sick and in need of a 

doctor, and that he had arranged for coverage for the store and 

would keep Zaijek updated. Plaintiff also advised his manager, 

John Tosar, of his absence. The record does not reveal that

plaintiff advised Zaijek or Tosar of the nature and extent of his 

illness. 

GNC's attendance policy required employees who were absent 

for five or more consecutive scheduled work days to submit a 

doctor's note to their supervisor as a prerequisite to return to 

work. On March 18, 2013, Tosar contacted plaintiff to inquire 

about plaintiff's return to work. Plaintiff responded, "[u]nsure 

at the moment it is pending due to my medical condition." Tosar 

advised plaintiff that he could not return to work unless he 

provided a doctor's note one day before returning. 
6 A-1637-15T4

On March 19, 2013, plaintiff advised GNC's human resources 

manager, Charmelle Hall, that he planned to return to work by 

March 22, 2013. Hall reminded plaintiff he had to submit a 

doctor's note authorizing him to return to work. Plaintiff said

he would submit a doctor's note by March 21, 2013.

Plaintiff saw Dr. DePaola on March 21, 2013. That same day,

plaintiff faxed to Tosar and Hall a copy of a note handwritten on 

Dr. DePaola's prescription pad that did not clear plaintiff to 

return to work on March 22, 2013. Rather, the note indicated that 

plaintiff would be out of work indefinitely. The note stated

"Excuse [plaintiff] from work 3/18/13 thru 4/20/13 when he will 

be reevaluated." Plaintiff provided no other medical 

documentation to GNC and did not authorize or ask Dr. DePaola to 

communicate with GNC. Plaintiff admitted that he never 

affirmatively communicated to GNC that he was suffering, or had 

previously suffered, from a physical or mental health disability. 

He also admitted that prior to leaving work on March 15, 2013, he 

never requested any specific, special accommodation for a physical 

or mental health condition.

Hall advised plaintiff that he was not eligible for benefits 

under the Family Medical Leave Act, and that his job was not 

protected and he could contact Tosar for re-hiring. On March 25, 

2013, GNC issued a Separation Report, which indicated that
7 A-1637-15T4

plaintiff had voluntarily resigned for medical reasons, effective 

March 15, 2013. The report recommended plaintiff's re-hiring. 

Plaintiff never contacted GNC to be rehired. Instead, on September 

11, 2013, he filed a complaint in the Law Division.

Despite GNC's discovery demands, plaintiff did not produce 

documents he intended to rely on at trial, identify fact or expert 

trial witnesses, or produce expert reports. Following the close 

of discovery, GNC filed a motion for summary judgment, arguing 

that plaintiff failed to prove he had a disability or that he had

requested an accommodation. 

In opposition, plaintiff appended Dr. DePaola's March 21, 

2013 office notes to his opposition brief with no supporting 

affidavit from the doctor authenticating the documents. The office 

notes indicated that plaintiff saw Dr. DePaola on March 21, 2013, 

complaining of knee pain, anxiety, panic attacks, depression, 

frequent crying, mood changes, and nervousness, and that the 

treatment plan was for plaintiff to be out of work from March 18 

to April 20, 2013. 

At oral argument, plaintiff's counsel represented that Dr. 

DePaola would testify at trial. However, plaintiff did not amend 

his discovery responses to identify the doctor as a fact or expert 

witness, and did not produce an expert's report. We reject 

plaintiff's argument on appeal that he had no obligation to provide 
8 A-1637-15T4

this information because GNC did not submit Rule 4:17-4(e) 

interrogatories. In its request for the production of documents, 

GNC specifically requested documents plaintiff intended to rely

upon at trial; reports of any experts he intended to call at trial; 

and a list of trial witnesses and a summary of the facts their 

testimony would establish. Plaintiff did not provide this 

information in his response to the document demand, and did not 

amend his responses. See R. 4:18-1(b)(3). 

We also reject plaintiff's argument that Dr. DePaola could

testify at trial as his treating physician. "[I]n an appropriate 

setting, the testimony of a treating physician may be admitted to 

support a plaintiff's LAD disability claim, provided that the 

proponent of the testimony provides notice and responds to 

discovery requests in accordance with the court rules, and the 

testimony satisfies N.J.R.E. 701 and other applicable Rules of 

Evidence." Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 580 

(2016) (emphasis added) (citations omitted). Plaintiff provided 

no notice that Dr. DePaola would testify at trial and did not 

respond to GNC's discovery requests for this information.

Relying on Dr. DePaola's office notes appended to plaintiff's 

brief, the court gave plaintiff all favorable inferences and found 

plaintiff showed he had a disability for purposes of the LAD. This 

was error.
9 A-1637-15T4

Rule 4:46-5 provides as follows, in pertinent part:

When a motion for summary judgment is made and

supported as provided in this rule, an adverse 

party may not rest upon the mere allegations 

or denials of the pleading, but must respond 

by affidavits meeting the requirements of 

[Rule] 1:6-6 . . . setting forth specific 

facts showing that there is a genuine issue 

for trial. 

[(Emphasis added).]

Rule 1:6-6 requires facts not appearing of record or not judicially 

noticeable to be supported by "affidavits made on personal 

knowledge, setting forth only facts which are admissible in 

evidence to which the affiant is competent to testify[.]" 

Appending documents to a brief with no affidavit or testimony 

properly authenticating them does not constitute compliance with 

Rule 1:6-6. Celino v. General Accident Ins., 211 N.J. Super. 538, 

544 (App. Div. 1986) (noting that critical documents which are 

alleged to support facts upon which a motion for summary judgment 

is based must be submitted "to the court by way of affidavit or 

testimony"). Moreover, counsel's presentation of facts which are 

neither of record, judicially noticeable, nor stipulated, by way 

of statements in a supporting brief and oral argument do not 

constitute cognizable facts. See Gonzalez v. Ideal Tile Importing 

Co., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J.

415 (2005).
10 A-1637-15T4

Here, there was no affidavit or testimony from Dr. DePaola 

authenticating his handwritten note and office notes, as required 

by Rule 1:6-6. Accordingly, the record lacked competent evidence 

to support a finding that plaintiff had a disability under the 

LAD. Summary judgment in GNC's favor was appropriate on this 

basis. Even if Dr. DePaola had authenticated his handwritten note 

and office notes, summary judgment was still appropriate.

The LAD prohibits employment discrimination on the basis of 

a disability "unless the nature and extent of the disability 

reasonably precludes the performance of the particular 

employment." N.J.S.A. 10:5-4.1; see also Potente v. County of 

Hudson, 187 N.J. 103, 110 (2006). To establish a prima facie case 

of handicap discrimination, the plaintiff must show that: (1) he 

or she was handicapped or disabled within the meaning of the LAD; 

(2) he or she was qualified to perform the essential functions of 

the position of employment, with or without accommodation; (3) he 

or she suffered an adverse employment action because of the 

handicap or disability; and (4) the employer sought another to 

perform the same work after plaintiff had been removed from the 

position. Gerety v. Atlantic City Hilton Casino Resort, 184 N.J.

391, 399 (2005). 

In order to survive a motion for summary judgment arising out 

of a claim of disability discrimination, a plaintiff must establish 
11 A-1637-15T4

a prima facie case of discrimination with proof, in the first 

instance, of a disability. Clowes v. Terminix Int'l, Inc., 109 

N.J. 575, 597 (1988). Failure to establish the existence of a 

disability is fatal to a claim of disability discrimination 

irrespective of proof of the remaining elements of a disability 

discrimination claim. See Viscik v. Fowler Equip. Co., 173 N.J. 

1, 15 (2002) (noting "the threshold inquiry in a handicapped 

discrimination discharge case is whether the plaintiff in question 

fits the statutory definition of 'handicapped'"). 

Under N.J.S.A. 10:5-5(q), there are two specific categories 

of handicap: physical and non-physical. The physical and nonphysical clauses of the statute are distinct from each other and 

provide separate ways of proving handicap. Ibid. To prove a 

physical handicap, a plaintiff must prove that he or she has a 

"physical disability, infirmity, malformation or disfigurement

which is caused by bodily injury, birth defect or illness . . . 

which prevents the normal exercise of any bodily . . . functions 

or is demonstrable, medically . . . by accepted clinical or 

laboratory diagnostic techniques." N.J.S.A. 10:5-5(q) (emphasis 

added). To prove a non-physical handicap

a plaintiff must prove that he or she is 

suffering (1) from any mental, psychological 

or developmental disability (2) resulting from 

an anatomical, psychological, physiological 

or neurological condition that either (a) 
12 A-1637-15T4

prevents the normal exercise of any bodily or 

mental functions or (b) is demonstrable, 

medically or psychologically, by accepted 

clinical or laboratory diagnostic techniques.

[Viscik, supra, 173 N.J. at 16 (citations 

omitted).]

"A plaintiff claiming a mental disability has the burden to 

prove that disability. 'Where the existence of a handicap is not 

readily apparent, expert medical evidence is required.'"

Wojtkowiak v. N.J. Motor Vehicle Comm'n, 439 N.J. Super. 1, 15 

(App. Div. 2015) (quoting Viscik, supra, 173 N.J. at 16); see also

Clowes, supra, 109 N.J. at 597 (rejecting a plaintiff's disability 

claim because there was no expert medical evidence he was an 

alcoholic). "Similarly, a plaintiff has the burden to show the 

extent of the mental disability if the extent is relevant to the 

accommodations requested or offered." Wojtkowiak, supra, 439 N.J. 

Super. at 15.

Dr. DePaola's handwritten note and office notes did not prove 

that plaintiff had a disability under the LAD. The documents did 

not confirm that plaintiff had a physical disability that prevented

the normal exercise of any bodily functions, or was verifiable 

medically by accepted clinical or laboratory diagnostic 

techniques. The documents also did not confirm the nature or 

extent of plaintiff's alleged mental disability, or that this

disability prevented the normal exercise of any mental functions. 
13 A-1637-15T4

N.J.S.A. 10:5-5(q). Accordingly, plaintiff failed to prove he had 

a disability under the LAD. Summary judgment in GNC's favor, 

therefore, was appropriate.

For the sake of completeness, we address plaintiff's failure 

to accommodate claim. Under the LAD, an employer has an obligation 

to attempt to reasonably accommodate an employee's physical or 

mental disability. Raspa v. Office of Sheriff of County of 

Gloucester, 191 N.J. 323, 339 (2007). This obligation is only 

triggered when the employer is made aware of the handicap and the 

employee requests an accommodation. Tynan v. Vicinage 13 of the 

Superior Court of N.J., 351 N.J. Super. 385, 400-01 (App. Div. 

2002). The request need not be in writing and the employee is not 

required to utter the words "reasonable accommodation." Id. at 

400. However, the request must be sufficiently clear that it 

conveys to the employer the employee's request that an 

accommodation be attempted to address the employee's disability. 

Id. at 400. Once the employee has conveyed the accommodation 

request to the employer, "both parties have a duty to assist in 

the search for appropriate reasonable accommodation and to act in 

good faith." Ibid. (citation omitted).

Plaintiff admitted that he never affirmatively communicated 

to GNC that he was suffering, or had previously suffered, from a 

physical or mental health disability. He also admitted that prior 
14 A-1637-15T4

to leaving work on March 15, 2013, he never requested any specific, 

special accommodation for a physical or mental health condition.

Dr. DePaola's handwritten note conveyed that plaintiff required a 

month off from work, but it did not make GNC aware of any physical 

or mental disability that required GNC to provide an accommodation 

under the LAD. Consequently, plaintiff's accommodation claim 

fails as a matter of law. 

Affirmed.