SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3113- 22 BART ALGOZZINI, Plaintiff-Appellant,

v. DGMB CASINO, LLC, d/b/a RESORTS CASINO HOTEL, Defendant-Respondent.

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Argued May 15, 2024

– Decided July 17, 2024 Before Judges Vernoia and Gummer. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L

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- 21. Heidi R. Weintraub argued the cause for appellant (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC, attorneys; Heidi R. Weintraub and Kathleen Ramalho, on the briefs). Jennifer B. Barr argued the cause for respondent (Cooper Levenson, PA, attorneys; Jennifer B. Barr, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3113

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Plaintiff Bart Algozzini appeals from an order gran ting the summaryjudgment motion of his former employer, defendant D GMB Casino, LLC d/b/a Resorts Casino Hotel. While plaintiff was still on medical leave after re ceiving second- and third-degree burns over nearly seventy percent of his body in a boatfuel explosion, defendant eliminated his position a s Director of S lot Operations and demoted him to Sl ot Service Manager, a lower-salaried position. Aft er plaintiff complained about his demotion as discrimi natory and returned to work while using a cane, defendant eliminated his new position. The motion judge granted defendant's summary-judgment motion and dis missed plaintiff's claims for disability discrimination and retaliation in vi olation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to - 50 , based on his finding plaintiff had failed to establish he suffered from a disability. Because a genuine issue of material fact existed as to whether plaint iff was disabled and because he did not have to prove a disability for his retal iation claim, we reverse.
I. We draw these facts from the summary-judgment reco rd, "view[ing] the evidence in the light most favorable to [plaintiff, ] the non-moving party." Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257 N.J. 33, 71 (2024)3 A- 3113

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(alteration in original) (quoting Qian v. Toll Bros ., Inc., 223 N.J. 124, 134- 35 (2015)). Defendant hired plaintiff as its Director of S lot Operations in October 2014. On July 17, 2019, while plaintiff was on his boat in a marina, fuel ignited

. Plaintiff experienced a flash to his face and signi ficant burns to his upper body, torso, back, and lower extremities. Plaintiff jump ed into the water to extinguish the flames. He was transported to a hospital burn uni t, where medical professionals treated him for second- and third-deg ree burns covering nearly seventy percent of his body. During a month-long hospitalization, plaint iff was placed in a medically-induced coma for over two wee ks , was intubated due to respiratory insufficiency for a week, was resuscita ted after a brief cardiac arrest, and underwent multiple skin -graft surgeries. On August 24, 2019, plaintiff was transferred from the hospital to a rehabilitation facility for acute inpatient rehabil itation. O n his discharge a week and a half later, plaintiff's physician noted plain tiff's "[w]ounds [were] improving" but "still require[ed] intensive nursing care" and that plaintiff was using a cane to walk. On October 24, 2019, plaintiff began outpati ent physicaltherapy treatment. After participating in twenty-o ne physical-therapy sessions, plaintiff was discharged on January 30, 2020. His physical therapist noted4 A- 3113

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plaintiff had "demonstrated improved [range of moti on] and strength" but was using a cane and shower chair and continued to expe rience a "[d]ecreased ability to participate in home, work and leisure activities ." Before plaintiff returned to work, his supervisor, Jose ph Cavilla, asked him if he would need any accommodations, including if he could "handle" stairs and what kind of "contraptions" he might be using. Plaintiff told him he was still using a cane, did not need a wheelchair or wa lker, and would not know more until he progressed further. While plaintiff was still on medical leave, defend ant eliminated plaintiff's position as Director of S lot Operations

– which was the only position eliminated at that time

– and created two new positions: S lot Service Manager and Slot Technical Manager. On or about January 10, 2020, Barbara Hulsizer , who was defendant's Equal Employment Opportunity Officer, a nd Cavilla met with plaintiff, advised him of the elimination of his po sition, and offered him the position of Slot Service Manager , which had fewer res ponsibilities and a salary that was $23,000 less than the salary he had receiv ed as Director of Slot Operations. On January 29, 2020, plaintiff emailed Cavilla and Hulsizer , advising them he was shocked by the news of his demotion , believed the demotion would5 A- 3113

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be "discriminatory and against the law," and did no t want to be demoted but wanted to return to his position as Direct or of Slot Operations on January 31,
2020 . Hulsizer responded, denying the new position was a demotion and asserting defendant had eliminated his position bas ed on an analysis of its "business needs." Plaintiff accepted the new posit ion and returned to work on January 31, 2020

. When he returned to work, plaintiff was walking wi th a cane. On March 16, 2020, Governor Philip D. Murphy issue d Executive Order
No. 104 , which, among other things, closed all casino oper ations effective 8:00 p.m. that day due to the outbreak of the COVID- 19 pandemic. Despite the closure of the casino, plaintiff continued to work in-person for a few additional weeks to maintain compliance with certain regulatio ns. Defendant terminated plaintiff in June 2020, when Cavilla and Hulsizer a dvised plaintiff defendant was not bringing him back when the casino reopened. According to Cavilla , defendant decided to "only bring back those positio ns that were critical at the time," at least thirty-nine other employees lost th eir jobs, and plaintiff's position was again eliminated , with Cavilla and other employees subsequently performing the duties of the Slot Service Manager. On January 7, 2021, plaintiff filed a two -count complaint, claiming defendant had violated the LAD. In count one, he alleg ed he had suffered from6 A- 3113

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a disability as a result of the severe burns he recei ved in the boat-fuel accident and his "demotion, salary reduction, and terminatio n were motivated by discriminatory animus and were clearly based upon [ his] disability at the time." In the second count, he alleged his "termination oc curred in retaliation for his objections and/or complaints that [d]efendant[] [ha d] engaged in conduct in violation of the LAD." After discovery closed, defendant moved for summar y judgment. After hearing argument, the motion judge entered an order and written decision on May 9, 2023, granting defendant's motion and dismis sing plaintiff's complaint with prejudice. The judge found plaintiff had fail ed to establish he suffered from a disability under the LAD "by competent and a dmissible evidence" and had failed to present a "material issue of fact." The judge reasoned:

Plaintiff did not name an expert witness, did not provide any expert report in discovery, and did not identify any treating physician that he planned to call for fact testimony at any trial. Plaintiff provide d only copies of medical leave records . . . [which t]his Court finds . . . [are] inadmissible hearsay and do[] not defeat summary judgment.

. . . . Plaintiff did not establish by competent evidence a ny condition that prevented the typical exercise of bo dily or mental functions.7 A- 3113

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The judge also held plaintiff's failure to establis h h e suffered from a disability meant he had failed to establish a prima facie case for retaliation under the LAD because he was not a member of a protected class

. On appeal, plaintiff argues he was not required to offer testimony from an expert or treating physician to establish he had be en disabled under the LAD because his alleged physical disability was "non-co mplex and readily apparent" and argues the motion judge erred in finding he had failed to prove a disability, in misapplying his deposition testimony, in failing to consider certain medical records, and in declining to consider another recor d as hearsay. Plaintiff also argues the judge erred in finding he had to prove he was disa bled and a member of a protected class in order to establish a prima facie case of retaliation under the LAD. In response, defendant argues the judge c orrectly granted its summary-judgment motion because plaintiff has no pr oof of disability.
II. We review a grant of summary judgment de novo, usin g the same standard that governed the trial court's decision. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That standard requires us to "determine wh ether 'the pleadings, depositions, answers to interrogatories and admissions o n file, together with the affidavits, if any, show that there is no genuine i ssue as to any material fact8 A- 3113

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challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46 -2(c)). "To decide whether a genuine issue of mate rial fact exists, the trial court must 'draw[] all legitimate inferences from the facts in favor of the non-moving party.'" Friedman v. Marti nez, 242 N.J. 449, 472 (2020) (alteration in original) (quoting Globe Moto r Co. v. Igdalev, 225 N.J. 469, 480 (2016)). Summary judgment is properly gra nted only "when the evidence 'is so one-sided that one party must preva il as a matter of law' . . . ." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 52 0, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)); see also Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014 ). Under the McDonnell Douglas 1 burden-shifting methodology for LAD discrimination claims, a plaintiff must first "come forward with sufficient evidence to constitute a prima facie case of discri mination." Meade v. Twp. of Livingston , 249 N.J. 310, 328 (2021) (quoting Henry v. Dep't of Human Servs., 204 N.J. 320, 331 (2010)). To establish a prima fa cie case of employment discrimination under the LAD, a plaintiff must show: 1) he was a member of a protected class; 2) his job performance met his emp loyer's legitimate

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 8 02-03 (1973).9 A- 3113

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expectations; 3) he suffered an adverse employment ac tion; and 4) the employer sought to have someone else perform the same work. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 ( 2005) ; see also Grande v. Saint Clare's Health Sys., 230 N.J. 1, 18 (2017). One class the LAD protects are those who are, have been, or are perceived to be disabled. See N.J.S.A. 10:5-4.1 (the LAD pro hibits "any unlawful discrimination against any person because such pers on is or has been at any time disabled") (emphasis added). The LAD defines "disa bility" as a

physical or sensory disability, infirmity, malforma tion, or disfigurement which is caused by bodily injury, birth defect, or illness including epilepsy and other sei zure disorders, and which shall include . . . any mental , psychological, or developmental disability, includi ng autism spectrum disorders, resulting from anatomica l, psychological, physiological, or neurological conditions which [1] prevents the typical exercise of any bodily or mental functions or [2] is demonstrab le, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Players Place II Condo. Ass'n, Inc. v. K.P., 256 N. J. 472, 487 (2024) (alteration in original) (emphasis omitted) (quoting N.J.S.A. 10:5-5(q)). To achieve the LAD's goal of "eradicat[ing] the can cer of discrimination," Meade, 249 N.J. at 327 (quoting Raspa v. Off. of Sh eriff of Gloucester, 191 N.J. 323, 335 (2007)), courts "have recognized and given effect to [its] broad10 A- 3113

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remedial purposes," Battaglia v. United Parcel Serv ., Inc., 214 N.J. 518, 546 (2013). The LAD's "disability" definition "'has be en interpreted as significantly broader than' analogous federal law." Id. at 489 ( quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 16 (2002)); see also Anders en v. Exxon Co., U.S.A., 89 N.J. 483 (1982) ("There is simply no basis for limi ting [the LAD's] coverage to

so -called severe disabilities."). The LAD does not r equire "that a disability 'result in substantial limitation of a major life a ctivity.'" Players Place II, 256 N.J. at 487 (quoting Tynan v. Vicinage 13 of the Su per. Ct., 351 N.J. Super. 385, 397 (App. Div. 2002)). Further, "[a]n employee per ceived to have a disability is protected under the LAD to the same extent as so meone who is disabled." Guzman v. M. Teixeira Int'l, Inc., 476 N.J. Super. 64, 70 (App. Div. 2023) (quoting Grande, 230 N.J. at 18). The LAD "clearly encompasses . . . disabled people who do not have a substantial or permanent impairment at the time of the alleged discrimination." Soules v. Mount Holiness Mem'l Park, 354 N.J. Super . 569, 575 (App. Div. 2002). It "protects one whose handicap has disappe ared by the time of the alleged discrimination." Barbera v. DiMartino, 305 N.J. Super. 617, 633 (App. Div. 1997). In Soules we reversed an order granting summary judgment in fav or of the defendants, reject ing the motion judge's finding the plaintiff had failed to11 A- 3113

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prove he was disabled under the LAD because his dis ability was temporary and "a temporary inability to work while recuperating f rom surgery for an injury is not a handicap or disability" under the LAD. 354 N .J. Super. at 573- 74

. In finding plaintiff had failed to provide "compet ent and admissible evidence" that he suffered from a disability, the m otion judge misstated the evidence plaintiff had submitted

. According to the judge, plaintiff "provided only copies of medical leave records in opposition to this motion. Specifically, [plaintiff] provided a 'Certification of Health Car e Provider for Employe e' s Serious Health Condition (Family and Medical Leave Act) form,'" which the judge found to be "inadmissible hearsay." In fact, plaintiff also had submitted over eighty pages of medical records detailing the injuries he had sustained in the accident and the treatment he had received from the day of the accident up to the day before he returned to work. The judge d id not mention those records in his decision, much less analyze whether any of t hem were admis sible

. The judge also mischaracterized plaintiff's deposit ion testimony, stating he had testified "he is not disabled and has not be en disabled and accommodations at work were not needed." In fact, p laintiff testified he did not need accommodations to perform the jobs he held els ewhere after defendant had terminated him and that on the day of his depositio n, he did not need an12 A- 3113

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accommodation to do his job. He also testified tha t although in the conversation he had with Cavilla while he was out on medical lea ve he did not request an accommodation, he reported he was using a cane, and he was walking with a cane when he returned to work. 2 Plaintiff did not testify he "had not been disabled"; he testified about his accident, subsequ ent condition, use of a cane, and two -week medically-induced coma

. The judge recognized plaintiff had been injured in the accident but found he "was able to recover" and, thus , had failed to "establish a 'disability.'" That finding is not supported by the evidence. Plaintif f was still out on medical leave and had not recovered from his injuries when defend ant eliminated his position and demoted him, and he was still walking with a ca ne when he returned to work. And with his impermissibly narrow interpretation of the LAD, the judge failed to apply correctly the law on disability dis crimination under the LAD or give effect to the LAD's "broad remedial purposes." Battaglia, 214 N.J. at 546. Even if he had recovered from his injuries by the t ime defendant terminated his position and demoted him

– and he hadn't

– the LAD prohibits "any unlawful

2 Citing a page in the records the judge apparently d id not consider, DBr18 defendant asserts plaintiff did not "rely" on a can e when he returned to work but needed the cane only if it was "slippery out or for stairs." That assertion highlights the existence of a genuine issue of material fact.13 A- 3113

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discrimination against any person . . . [who] has b een at any time disabled," N.J.S.A. 10:5-4.1, and protects individuals whose d isability "has disappeared by the time of the alleged discrimination, " Barbera, 305 N.J. Super. at 633

. Viewing the evidence in the light most favorable t o plaintiff, as we must, see Comprehensive Neurosurgical, P.C., 257 N.J. at 71 , we conclude a genuine issue of material fact exists as to whether plainti ff was a member of a protected class. A reasonable factfinder could conclude, bas ed on plaintiff's testimony alone, that he was disabled when defendant eliminat ed his position and demoted him or was disabled in the months leading up to tha t adverse employment action. Accordingly, we reverse the order granting summary- judgment as to plaintiff's disability discrimination claim. We also reverse the order as to plaintiff's retali ation claim. The judge granted summary-judgment to defendant on that claim based on his holding plaintiff had failed to submit sufficient evidence from which a reasonable factfinder could conclude he was a member of a protecte d class as someone who was or had been disabled

. That holding, for the reasons we already have stated, was wrong; it also was legally irrelevant to plaint iff's retaliation claim. "The LAD makes it illegal '[f]or any person to take reprisals against any person because that person has opposed any practice s or acts forbidden under14 A- 3113

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this act[.]'" Battaglia, 214 N.J. at 546 (alterations in original) (emphasis added) ( quoting N.J.S.A. 10:5 -12(d)). The judge cited Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252 (App. Div. 1996), to sup port his legal conclusion plaintiff first had to demonstrate he was a member of a protected class in order to establish his retaliation claim. But we didn't say that in Woods-Pirozzi. W e held: "To establish a prima facie case of retaliation, pl aintiff must show that 1) she was engaged in a protected activity known to th e defendant; 2) she was thereafter subjected to an adverse employment decis ion by the defendant; and 3) there was a causal link between the two." Id. a t 274 (emphasis added). Defendant relies on Victor v. State, 203 N.J. 383, 408-09 (2010), but that reliance is misplaced. The Court's focus in Victor was on "whether an adverse employment consequence is an essential element of a plaintiff's claim that his employer discriminated against him by failing to ac commodate his disability." Id. at 388. In dicta, the Court included "plaintif f was in a protected class" as an element of an LAD retaliation claim, citing Woods-P irozzi, 290 N.J. Super. at
274 . Victor, 203 N.J. at 409. But we didn't include membership in a protected class as an element of a LAD retaliation claim in W oods-Pirozzi, 290 N.J. Super. at 274, and the Court did not include it as an elem ent of the claim in Battaglia ,15 A- 3113

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214 N.J. at 547, which was decided three years afte r Victor and authored by the same member of the Court. In Battaglia, the Court held:

When the [LAD] claim arises from alleged retaliatio n, the elements of the cause of action are that the employee "engaged in a protected activity known to the [employer,]" the employee was "subjected to an adverse employment decision[,]" and there is a caus al link between the protected activity and the adverse employment action. [214 N.J. at 547 (quoting Woods-Pirozzi, 290 N.J. Super. at 274).] Thus, the judge erred in requiring plaintiff to pro ve he was a member of a protected class to establish his retaliation claim under the LAD. Reversed and remanded for further proceedings consi stent with this opinion. We do not retain jurisdiction.