Photo: Diego M. Radzinschi/ALMA New Jersey appeals court has upheld the dismissal of a Gulf War veteran’s lawsuit claiming a psychological exam required of aspiring firefighters represents disability discrimination.
Frank Rivera was turned down for employment as a firefighter in Cranford based on a psychologist’s conclusion that he should not be hired. Rivera filed a suit claiming he suffered discrimination based on actual or perceived disability and based on military service. His complaint asserted that the New Jersey Law Against Discrimination prohibits employers from requiring job applicants to take medical examinations that are not job-related and that he was unlawfully subject to such an examination.
Rivera served in Iraq and Kuwait, was dishonorably discharged, and had been diagnosed with post-traumatic stress disorder and a traumatic brain injury. As a volunteer firefighter, he brought a service dog to the firehouse, and he testified that others in the firehouse had made negative remarks about his mental health. Rivera ultimately scored poorly on the psychological test because he was combative and refused to answer some of the questions.
During trial, Superior Court Judge Alan Lesnewich dismissed a claim that the psychological examination was unlawful because it did not predict Rivera’s ability to perform as a firefighter. The judge made his ruling after determining that there was no evidence on that issue, and that Rivera would need an expert to establish that theory.
The remaining question, whether Rivera was discriminated against based on his military service, was put to a jury, which found in favor of the defendant in May 2018.
Before Appellate Division Judges Joseph Yannotti, Heidi Currier and Lisa Firko, Rivera appealed a pretrial ruling denying his partial motion for summary judgment on the claim that the psychological test was discriminatory.
But the panel said “ample evidence in the record” supports the denial of Rivera’s motion for partial summary judgment.
“Plaintiff contends he never told anyone at the fire department or the psychologist about his PTSD and TBI diagnoses or treatment for his conditions,” the panel said. “The record contains no other evidence to suggest that defendant knew plaintiff had an actual disability and based its decision not to hire him on that fact.”
To show he was discriminated against, “plaintiff presented evidence that other firefighters had discussed the differences they perceived in him since his return from military service, the fact that he had a service dog and there were rumors about his military discharge. However, general negative comments about a plaintiff’s mental health do not establish that a defendant perceived a plaintiff to be suffering from a ‘particular handicap’ or specific disability as defined under the LAD.”
Furthermore, there was no evidence that the fire chief and the Township Committee, the people responsible for making the hiring decision, had made or heard the negative comments about Rivera’s mental health, and the fire chief had conditionally appointed him to the job, the panel said.
Rivera also appealed rulings barring his expert report on economic damages and denying his motion to extend discovery. He claimed that exceptional circumstances justified the late submission of his report. However, because the jury did not find any discriminatory action by the defendant, it did not reach the damages issue, making those items moot, the court said.
Christopher Lenzo of Lenzo & Reis in Morristown, who represented Rivera, said he would file a motion for reconsideration of the Appellate Division ruling. He would consider an appeal to the state Supreme Court if that motion is denied, he said.
“I think the court ignored published Appellate Division case law on notice pleading and ignored facts in the appeal so that it could have a procedural basis to say that the argument that the psych exam was unlawful was not properly pled so they could avoid the merits of that claim,” Lenzo said.
John Ursin of Schenck, Price, Smith & King of Morristown, representing Cranford, said the bad interview with the psychologist was why Rivera was not hired, and not because the test was discriminatory.
“The plaintiff’s lawyer tried to line it up that way and in the end he didn’t have the ammunition,” Ursin said.
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