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. L5832-13.

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

NOT FOR PUBLICATION WITHOUT THE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.
2 A-3924-16T3

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 
3 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 
4 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 
5 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.
6 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. 
7 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 
8 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. 
9 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.
10 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.
11 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 
12 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.