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In a decision that plaintiffs’ employment lawyers say hampers the Law Against Discrimination, a New Jersey trial judge dismissed a suit by a college professor who claims she was not promoted because of her breast cancer and mastectomy. “If this court were to … rule that she is handicapped because she had breast cancer, then a person with cancer who goes into remission would always be considered ‘handicapped’ under the NJLAD,” Superior Court Judge Nicholas Stroumtsos Jr. wrote in Gertrude Harris v. Middlesex County College, L-4143-00. That result “would stretch the LAD beyond its limits,” said Stroumtsos, denying the plaintiff’s motion for reconsideration of summary judgment granted to the defendant on Nov. 8. Plaintiffs’ attorneys say the Jan. 29 ruling removes cancer victims from LAD’s protection so long as the cancer goes into remission. “It’s absolutely unbelievable,” says Nancy Erica Smith of Montclair, N.J.’s Smith Mullin. “Unless their cancer is active at that moment, they’re not covered.” John Norton, who represents the plaintiff in the case, Gertrude Harris, says he will appeal. “This is the wrong message for cancer patients: that the better you get, the less we’re going to protect you,” says Norton, of West Orange’s Alpert, Butler, Sanders & Norton. But Vanessa Kelly, who represents the defendant, Middlesex County College, says the ruling was not based merely on the fact that the plaintiff’s cancer was in remission. Rather, the judge emphasized that the cancer-in-remission had no limiting effect on her life. Plus, Stroumtsos found that Harris couldn’t establish she was discriminated against, even if she was handicapped. That’s an independent ground for dismissing her claim even if an appellate court rejects Stroumtsos’ “handicap” analysis, says Kelly, of counsel to Morristown’s Jackson, Lewis, Schnitzler & Krupman. For example, Harris hadn’t shown that the college’s legitimate reasons for not promoting her were pretextual, Stroumtsos found. The college said Harris had failed to improve her communications skills as noted in her evaluations. Stroumtsos also found that Harris didn’t show how her credentials were equal to or better than those of other people who were promoted. Harris, a tenured assistant professor of counseling services at Middlesex, alleged that the college failed to promote her to the position of associate professor in 1995, 1996, and 1998 because of her breast cancer and mastectomy, which she had in 1994. She claimed that her supervisor made comments trivializing her cancer, asking her, for example, why she had a mastectomy so soon. She sued in federal court under the LAD and the Americans with Disabilities Act. Last April, U.S. District Judge William Walls granted summary judgment in favor of the college on the ADA claim, but declined to exercise pendant jurisdiction over the LAD claim. Harris then refiled in state court, adding claims for failure to promote in 2000 and for intentional infliction of emotional distress. In granting summary judgment, Stroumtsos noted that Harris had undergone the mastectomy six years ago, and that she remained cancer-free. In her deposition testimony in the federal case, he said, she admitted that she had no present physical limitations. Stroumtsos also rejected Harris’ reliance on Blume v. Denville Board of Education, 334 N.J. Super. 13 (App. Div. 2000), where the plaintiff, who had undergone a mastectomy for breast cancer, was found to be handicapped under the LAD. Blume did not stand for the proposition that anyone with breast cancer qualified for LAD protection, reasoned Stroumtsos. Unlike the plaintiff in Blume, Harris had stopped treatment. And Harris still had to show that the cancer substantially limited or impaired her lifestyle, which she failed to do at her deposition, said Stroumtsos. However, Norton says, Harris was taking an oral chemotherapy drug as recently as last spring and still suffers from difficulty sleeping, fatigue, irritability and emotional distress. She knows the cancer can recur at any moment, he says. Norton submitted a certification from Harris saying as much, but Stroumtsos gave no weight to it, saying it contradicted her deposition testimony, which didn’t mention those things. Norton blames Harris’ prior attorney, Nancy Steadman Martin, for not adequately preparing Harris for deposition testimony. Martin, now of counsel to Lucas Savits & Marose in Red Bank, declines to comment. Norton also claims he wasn’t allowed to take further discovery since the case was refiled in state court, on the failure-to- promote-in-2000 claim. For example, he wanted to show that Harris was even more qualified for the promotion now that she had a doctorate. Stroumtsos rejected the request for more discovery, saying Harris had ample opportunity to prove her claims. “There is no need to spend any more of counsels’ time and resources,” he said. Indeed, Stroumtsos chastised Norton for relying on what he felt were irrelevant policy arguments and case law, which even included the U.S. Supreme Court’s recent ruling in Bush v. Gore, 531 U.S. (2000), on an issue of statutory construction. “Plaintiff first attacked this Court’s holding and essentially offered policy-based reasoning in response to the holding,” wrote Stroumtsos. “It is quite clear to this Court that Plaintiff simply disagrees with the Court’s holding.” Despite the tone of the opinion, Kelly, the defense attorney, says Stroumtsos bent over backward to give Harris a fair hearing, even allowing her to address the judge in open court. She says Stroumtsos showed sympathy to Harris even while ruling against her. Still, Norton maintains there are strong policy reasons why the Appellate Division should reverse Stroumtsos’ ruling that cancer-in-remission is not a handicap. He says Stroumtsos didn’t address Harris’ alternate claim that her supervisor perceived her as having a handicap, even if the cancer didn’t limit her abilities. That perception alone is a basis for LAD protection, says attorney Beth Haiet Meyer, who assisted Norton in the case, because employers often treat workers with cancer, especially those with mastectomies, in a discriminatory fashion as a result of myths or stereotypes. Plaintiffs’ attorney Smith agrees that Stroumtsos’ ruling doesn’t comport with workplace realities. “People don’t like to be around other people who are sick or who have cancer. Managers don’t want to deal with [it],” she says.

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