Andersen v. Exxon Co.

SCHREIBER, J.,

dissenting.

A prospective employer who relies in good faith on the expertise of an independent medical doctor that an applicant is not physically capable of performing the job has not violated the Law Against Discrimination. I believe an interpretation of the law leading to the opposite result is contrary to the intent of the Legislature as expressed in the statute. Moreover, I would not charge a supervisory employee with violation of the Law Against Discrimination when that employee does not make company policy but merely administers it. Nor do I believe that *504 the Law Against Discrimination authorizes the imposition of nominal monetary damages. It is for these reasons I must dissent.

I

There are two basic issues in a physical handicap case. The first is whether the claimant is physically capable of doing the job. He has the burden of demonstrating that his physical handicap will not prevent him from satisfactory performance. Central to the resolution of that issue is a determination of the job’s physical requirements. Second, if he satisfies that test, did the prospective employer intend for some improper reason to discriminate against the applicant, articulating the physical disability as an excuse? For example, rejecting Andersen for a clerical position because of his inability to lift heavy objects would be a feigned reason for denying him employment.

After paying lip service to the principles concerning burden of proof in Law Against Discrimination cases, which I thought were well settled in a series of recent decisions of this Court, see Goodman v. London Metals Exchange, Inc., 86 N.J. 19 (1981); Countiss v. Trenton State College, 77 N.J. 590 (1978); and Peper v. Princeton University Board of Trustees, 77 N.J. 55 (1978), the majority has chosen to modify those guidelines in a physical handicap discrimination case.

This Court has always held that the plaintiff has the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff. See Goodman v. London Metals Exchange, Inc., 86 N.J. at 29, 31-32 ; Peper v. Princeton University Board of Trustees, 77 N.J. at 80; Jackson v. Concord Co., 54 N.J. 113 (1969) (burden of proving all elements necessary to establish disparate treatment violation of Law Against Discrimination “rests with the complainant throughout”). Justice Pashman wrote for a unanimous court in Peper v. Princeton University Board of Trustees that “the existence of a strong policy against employment discrimination *505 in New Jersey does not affect the normal rule that the burden of proof by a preponderance of the evidence is with the complaining party even where invidious discrimination is alleged.” 77 N.J. at 80.

The majority slips off this basic concept by shifting the burden of proof onto the employer to prove that it reasonably concluded that the physical handicap in question precludes performance of the particular employment. In so doing, the Court has relieved the claimant of the burden of proving the employer’s wrongful intent. Reasonableness of the employer’s decision bears on its intent. If the employer is unreasonable in the decisionmaking process, then it is likely that it wrongfully and intentionally discriminated. Hereafter, the employer must establish that it did not intend to discriminate against the complainant unlawfully by proving it acted reasonably, while in every other discrimination case this burden rests on the claimant.

Relying on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817, 1824 , 36 L.Ed.2d 668, 678 (1973), this Court has previously adhered to the concept that once plaintiff’s prima facie showing is made, thereby giving rise to a presumption of unlawful discrimination, the burden of going forward shifts to the employer to rebut the presumption by “articulatpng] some legitimate, nondiscriminatory reason for the employee’s rejection.” Goodman v. London Metals Exchange, Inc., 86 N.J. at 31 ; Peper v. Princeton University Board of Trustees, 77 N.J. at 83. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 , 101 S.Ct. 1089, 1094 , 67 L.Ed.2d 207, 216 (1981); Board of Trustees v. Sweeney, 439 U.S. 24, 24-26 , 99 S.Ct. 295, 295-96 , 58 L.Ed.2d 216, 218-19 (1978). The presumption is rebutted if the defendant’s evidence raises a genuine issue of fact as to whether it unlawfully discriminated against the plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. at 254 , 101 S.Ct. at 1094 , 67 L.Ed.2d at 216 . The plaintiff then has the opportunity to prove by a preponderance of the evidence that the defendant’s reason was not the true *506 reason, but a pretext. Goodman v. London Metals Exchange, Inc., 86 N.J. at 32 ; Peper v. Princeton University Board of Trustees, 77 N.J. at 83. See Texas Department of Community Affairs v. Burdine, 450 U.S. at 255-256 , 101 S.Ct. at 1094 , 67 L.Ed.2d at 216-17 ; McDonnell Douglas, 411 U.S. at 804 , 93 S.Ct. at 1825 , 36 L.Ed.2d at 679 .

Application of this procedure conforms with the expressed legislative intent that “[t]he provisions of this act shall be construed fairly and justly with due regard to the interests of all parties.” N.J.S.A. 10:5-27. 1 No valid justification has been advanced why a different methodology should be adopted for the physically handicapped. 2

The physical handicap case fits into the same pattern as other discrimination cases. It is most improbable that the Legislature intended that one who allegedly has been discriminated against for race, creed, color or gender should have a greater burden of persuasion than one who is physically handicapped. Discrimination on the basis of physical handicap where the handicap *507 precludes the individual’s effective performance of the job is in the public interest. It avoids inefficiency, possible injury to the employee and co-workers, and consequential costs that would be eventually passed on to the consumer. An employer should not be compelled to materially enhance the risk of injury.

Accordingly, I would require a physically handicapped claimant to meet the McDonnell-Douglas test by demonstrating by a preponderance of the evidence (1) that he belongs to the protected class, namely, that he is physically handicapped as defined in N.J.S.A. 10:5-5(q), (2) that he applied and was qualified for the position, namely, that despite his physical condition he was able to perform the job, (3) that despite being qualified, he was rejected, and (4) that after rejection, the employer continued to seek applications to fill the vacancy. Once the claimant has adduced such evidence, the burden of going forward would shift to the employer to articulate a basis for its action. In making that explanation, the employer may show that the decision was reasonably reached. The claimant could then attack the employer’s reason. However, the ultimate burden of proof would remain on the plaintiff to prove intentional impermissible discrimination. This could include proof that the employer’s reasons are pretextual.

II

Regardless of the improper allocation of the burden of proof, the undisputed evidence in the record establishes that Andersen was not physically qualified for the job and that Exxon acted reasonably in rejecting his application. The Administrative Law Judge found that Exxon did not meet its “burden of coming forth with evidence as to whether the complainant’s physical condition reasonably precluded him from the particular employment.” The Director of the Division on Civil Rights adopted that finding. The Appellate Division, placing the burden on Exxon to prove that Andersen was not physically qualified, *508 concluded that the burden had not been met. 3 The majority herein, despite holding that the Appellate Division erred in placing that burden on the employer, assumes that determination was correct, namely that Andersen was physically qualified to do the work, and focuses on whether Exxon proved it acted reasonably. I submit that each of these factual evaluations, the Director’s, the Appellate Division’s and the Court’s, is flawed.

The job for which Andersen applied was a non-regular heating oil driver. Exxon, in conjunction with its retail home heating oil business, engaged additional drivers during the heating oil season to deliver fuel oil. The hours were from 4:30 p. m. to midnight, seven days a week, no matter what the weather. When drivers were hired, they underwent a two-week training period.

Drivers had to load the tanker truck with oil twice a night. This involved pulling up to a loading rack, climbing a ladder to the top of the truck, pulling down a loading arm and inserting it into the tank compartment. After filling the tank, the driver would remove the loading arm and close the dome cover. The loading arm which had to be lifted weighed about 50 or 60 pounds.

The driver made about 40 deliveries. At each delivery stop he would have to pull the hose from the truck to the customer’s oil tank and, after filling the tank, return the hose to the truck. The obstacles that the driver had to overcome at each customer’s installation varied. He might have to pull the hose over embankments, ice and snow. The driver had to stoop down and twist off the fill cap of the customer’s tank with a wrench. This was often a difficult task, particularly in bad weather. The hose weighed over IV3 pounds per linear foot and the nozzle added an additional five pounds. Although the average distance *509 the hose was pulled was 45 to 50 feet, at times it had to be extended 100 feet. When that occurred, its weight would be roughly 130 pounds. If the hose were extended 72 feet, its weight, including the nozzle, would exceed 100 pounds. In any event, this operation involved pulling or carrying weights at times well in excess of 100 pounds. The job was physically strenuous and required substantial amounts of climbing, bending, stooping, twisting, pulling and lifting.

To determine if Andersen was physically capable of performing these tasks, Dr. Butenas examined him at Exxon’s request. Dr. Butenas, an orthopedic specialist, was on a panel of private practitioners who from time to time performed medical examinations for Exxon. He examined Andersen on October 17,1973 and obtained a history that in 1960 Andersen had undergone back surgery. A disc had been removed in the lower back and a fusion performed. Dr. Butenas’s report, which was sent to Exxon, stated that he found the spine and back abnormal. Andersen testified that he could not “recollect exactly in detail” what had occurred during the physical examination some six years before, but he did recall raising his hands over his head and touching his toes, bending over and having the doctor look at his back.

Dr. Butenas’s report discloses that he took Andersen’s blood pressure; checked his pulse before and after exercise; examined his eyes for vision and color blindness; examined his ears, nose, throat, teeth, thyroid, thorax, lungs, heart, abdomen, genitalia, skin and extremities. Dr. Butenas administered a neurological examination, including a Rhomberg test, as well as observing Andersen’s papillary and knee reflexes. A urinalysis was also performed.

Fully aware of what the heating oil driver had to do, Dr. Butenas recommended that Exxon not employ Andersen. Nothing in the record indicates that Dr. Butenas had any intent to discriminate against Andersen.

Sullivan, Exxon’s delivery dispatch supervisor, had interviewed Andersen, wanted to and did in fact hire Andersen, *510 subject to his passing the pre-employment physical. Sullivan was so concerned with the adverse report from Dr. Butenas that he telephoned Dr. Langdon, Exxon’s regional medical director, in Maryland to substantiate Dr. Butenas’s recommendation. Dr. Langdon knew the job requirements of a retail heating oil driver and knew that Dr. Butenas was also familiar with those requirements. 4 He concurred in the recommendation. 5 Dr. Langdon noted that the Company had no policy of automatic disqualification of an applicant who had a back problem and that each case was treated individually. He testified that Andersen’s physical disability would not have been an obstacle if the position for which he was applying had been that of a clerk.

Exxon’s good faith in this transaction has not been impugned. The majority’s assertion that Exxon relied upon “an unreason *511 able and arbitrary opinion” rests on the Court’s medical expertise. When the majority cautions the employer to review “any recommendations of disqualification,” ante at 502, it expects the employer, who does not have the medical skill and knowledge, to second guess a medical expert. An independent doctor was called upon to determine if the applicant was physically qualified to fill a certain position. The request was made because the employer could not make that medical judgment. What specific tests related to the function of the back were administered by Dr. Butenas are not known. Though, as noted above, Andersen testified to the best of his recollection as to what had occurred at the examination, the record is silent as to the specific tests given and their results. However, even if the tests were known, what more should be asked of a prospective employer who is relying upon the doctor’s medical expertise? The doctor could submit a report stating his conclusions or one detailing each test given. I gather from the majority’s opinion that, if the doctor detailed the tests, then the employer would have acted reasonably in rejecting Andersen. Yet from Exxon’s standpoint it should make no difference whether the report was detailed in that respect or not. Exxon had no reason to believe that Dr. Butenas was not qualified or had not performed an adequate examination. Moreover, even if advised of the tests given, Exxon would not know whether that testing was sufficient or whether the results justified the conclusion. Is Exxon then required to seek additional medical advice on the correctness of the doctor’s opinion?

Nothing justifies this Court’s substituting its medical judgment for the unrefuted conclusion of Dr. Butenas, corroborated by the claimant’s treating physician and medical expert, 6 that one who had a spinal fusion should not be subjected to the risks of a non-regular heating oil driver. Where, as here, the employer has selected a qualified physician, made the doctor aware of *512 the job’s requirements and requested a good faith evaluation of the applicant’s capability, the employer should be held to have reasonably relied on the doctor’s opinion.

Ill

Compounding its error, the majority approves the issuance of a cease and desist order against Sullivan. Here is the individual who wanted to hire Andersen and was prevented from doing so because of Dr. Butenas’s report, which was confirmed by Exxon’s medical director. Sullivan had no choice in the matter. He had not created nor was he responsible for company policy. Any improper discrimination that occurred was due to implementation of that policy, for which the company itself should in the final analysis be responsible. There is no proof in this record that Sullivan unlawfully intended to discriminate against Andersen.

IV

The $500 award to Andersen for emotional distress is simply not supportable. It is based on one sentence, nonresponsive to the question, in the entire record. 7 Andersen testified as follows:

Q. Now, after you left Dr. Butenas did you go see anyone, did you go back to Mr. Sullivan?

A. No, I just went home very depressed and then I went back to him one day, though, to ask him, you know, why I couldn’t be hired, is there something that could be done. He just said in sort of angry words, he says, well I’m sorry, but his word is law.

Such evidence can hardly be said to support an award of $500 for compensatory damages for humiliation, pain and suffering. *513 See Castellano v. Linden Board of Education, 79 N.J. 407 (1979) ($600 award for humiliation and mental suffering set aside where evidence in support of award was held nebulous; evidence involved a female school teacher who, upon being improperly refused sick leave during pregnancy, became upset for a couple of weeks, cried on many occasions and stayed in the home for a while). 8 The Director of the Division on Civil Rights has the power to award damages for humiliation, pain and mental suffering and to compensate actual injuries. Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 416 (1973). He has no authority to award nominal damages for that claim.

CONCLUSION

For all the foregoing reasons, I would reverse and enter judgment for defendants.

Justice POLLOCK joins in this opinion. Justice CLIFFORD joins in all except Part IV of this opinion.

For affirmance and modification—Chief Justice WILENTZ and Justices PASHMAN, HANDLER and O’HERN-4.

For reversal—Justices CLIFFORD, SCHREIBER and POLLOCK-3.

it is significant that a 1949 amendment, L.1949, c. 11, § 19, substituted these words in place of “liberally for the accomplishment of the purpose thereof.”

The majority attempts to justify the shift in the burden of proof on the ground that the employer has “special” knowledge of the job’s qualifications. Despite this the majority asserts that complainant must first prove he was qualified for the job in terms of its physical requirements. The majority ignores the fact that complainant has an opportunity to obtain information through the discovery (1) that precedes these hearings when the Attorney General carries on his investigation, (2) that occurs after a finding of probable cause, and (3) that is available through depositions and interrogatories. N.J.A.C. 13:4-8.1, -8.2, -8.4. Furthermore, if the employer is in a better position to prove the job qualifications, the employee is in a better position to prove the nature, extent and limitation of his handicap. The majority fails to distinguish between the burden of going forward that may be imposed on a defendant who has superior knowledge and the ultimate burden of proof.

I am not advocating that McDonnell-Douglas standards are applicable in every factual situation, but they should be utilized as a starting point. See Peper v. Princeton University Board of Trustees, 77 N.J. at 83. This is a discriminatory treatment case that fits within the standards.

The Director found there was no evidence that Andersen was not physically qualified for the job; whereas, the Appellate Division found the employer did not meet its burden of proof in that respect. Thus it cannot be stated with certainty that the two bodies below made the same factual finding.

Dr. Langdon testified as follows:

Q. Doctor, while you were employed by Exxon did you know the job

requirements on the job of retail oil heat driver?

A. Yes, sir.

Q. Did Dr. Butenas know those job requirements?

A. Yes, sir.

Q. How do you know that he knew the job requirements?

A. Well, I had discussed them with him.

The Administrative Law Judge rejected this uncontroverted evidence because it was hearsay. The fact that it was hearsay did not detract from its evidential value. Weston v. State, 60 N.J. 36, 50-51 (1972). The Administrative Law Judge did not find that Dr. Langdon was not credible. Indeed, there is no indication in the record that his testimony was not believable. Accepting Dr. Langdon’s testimony as true, the reasonable conclusion is that Dr. Butenas knew the job requirements.

Dr. Langdon also observed that Andersen was not physically capable of handling the job. In reaching that conclusion, Dr. Langdon accepted the treating physician’s test that Andersen should not lift objects weighing over 50 pounds and the guidance given by the doctor who examined him for the purpose of this case fifteen years after the operation that Andersen should not lift loads above 100 pounds or engage in any activity where he would have “excessive twisting of his trunk.” Thus, neither of Andersen’s physicians would have approved his employment as a non-regular retail driver for Exxon.

See footnote 5, supra.

The Director of the Division on Civil Rights did not predicate the award on this evidence, but relied on the assumption that in the absence of proof of any significant emotional effect, such an award should be made to compensate the claimant for deprivation of civil rights.

The majority’s claim that compensatory damages for mental suffering or distress depend on the contractual provisions between the employer and employee, even though those provisions violate the Law Against Discrimination, is misplaced. If the Law has been violated and as a result the employee has been injured, damages should be awarded for those injuries.