An appellate court has upheld a decision to dismiss a Paterson man's claim that he lost his job as a bus driver and was subjected to a hostile work environment because of morbid obesity.

In essence, the ruling affirms that overweight citizens are not necessarily a protected class under the New Jersey Law Against Discrimination—that “obesity alone is not protected under the LAD as a disability unless it has an underlying medical cause, a condition that plaintiff failed to meet in the present case.”

The decision upheld summary judgment granted on April 30, 2018, by Passaic County Superior Court Judge Ernest M. Caposela, who found that plaintiff Corey Dickson failed to support his discrimination claims and dismissed his complaint against Community Bus Lines, Inc., two former supervisors and a medical doctor.

The case was argued on March 25 before Appellate Court Judges Jack Sabatino, Michael Haas and Stephanie Ann Mitterhoff.

In the April 4 ruling, the court said Dickson's complaint was properly dismissed “because a perceived disability claim based on obesity must be grounded upon direct or circumstantial evidence that defendants perceived the plaintiff to be disabled due to a medical condition that caused him or her to be overweight.

“Such proof is absent from this record and, accordingly, summary judgment was correctly granted,” wrote Judge Haas, who delivered the opinion.

Attorney Mark Mulick of Montclair, who represented Dickson, expressed disappointment over the ruling.

“We are extremely disappointed,” Mulick said in a phone interview. “It appears that obesity is now the only legally accepted form of workplace discrimination. I simply do not understand how alcoholism can be an LAD-protected disability and obesity is not. An alcoholic drinks too much and an obese person eats too much. What is the difference?

“My client suffered a decade of obesity taunts on an almost daily basis, and his supervisors ran on it,” added Mulick. “He had no one to go to but the courts, and now he doesn't have that.”

Attorney Christina A. Stoneburner of Fox Rothschild in Morristown, who represented the defendants, declined to comment.

The court denied Dickson's only remaining claim that he pressed on appeal—that he was subjected to a hostile work environment with repeated taunts over his weight by former colleagues and supervisors.

According to the decision, Dickson weighed more than 500 lbs during his time working for the company. He had been a bus driver since 2005 for Community, where he drove a regular route and passed his mandatory medical examinations from 2005 to 2015.

In his complaint, Dickson asserted claims under the LAD alleging his former employer and immediate supervisors discriminated against him based on his weight, failed to adequately accommodate his physical size, retaliated against him, and subsequently fired him from his job.

Defendant Community denied it discriminated against Dickson, and contended that he had failed two medical examinations that were required in order for him to get re-certified and obtain a valid commercial driver's license (CDL). Community said all CDL holders have to pass a medical exam every two years and obtain a medical certification card verifying their fitness to drive.

The bus company maintained that Dickson failed a medical exam in April 2015, which disqualified him from driving a bus. Community said it encouraged him to seek another medical opinion over his condition, which he declined, but it still kept his job open in hopes of him eventually getting re-certified, according to the decision.

Dickson filed his complaint against Community and the other defendants in February 2016.

In July 2017, Dickson suffered a stroke. The following year, he was diagnosed with peripheral edema, obstructive sleep apnea, morbid obesity, chronic congestive heart failure, among other conditions, the court said.

In granting summary judgment, Judge Caposela rejected Dickson's claim that his obesity constituted a disability under the LAD, and that the defendants had subjected him to a hostile work environment because of his weight

Relying on the Appellate Division's 2015 decision in Schiavo v. Marina District Developmental Co. LLC, Caposela said “there is no protected class [under the LAD] based solely on one's weight.” The judge also found that contrary to Dickson's claim, the defendants never perceived Dickson as “disabled.”

Judge Haas, affirming, said, “as the Supreme Court held in Viscik v. Fowler Equipment Co., a plaintiff's obesity will only constitute a disability under the LAD if the plaintiff demonstrates that his condition is 'caused by bodily injury, birth defect, or illness.'”

As for Dickson's claim for a hostile work environment based upon perceived disability under the LAD, Haas said Dickson also failed to substantiate that the remarks allegedly made about him interfered with his work driving a bus. The alleged comments were in line with comments he made about himself, the court said, and the ruling referenced how Dickson made self-deprecating remarks about his weight among colleagues in the break-room, calling himself “fat boy,” among other names.

“Until he was unable to secure a medical certification card, plaintiff was a valued employee who received several commendations,” Haas said. “Community never fired plaintiff, and kept his job open in the hope that he would be able to pass his licensing examination.

“Under the totality of these circumstances, we agree with [Caposela] that the cumulative effect of the coworkers' comments was not sufficiently 'severe or pervasive' to create an actionable hostile work environment claim under the LAD.”

Added Haas: “To prevail on a hostile work environment claim, a plaintiff must show: One, that he or she is in a protected class; two, that he or she was subjected to conduct that would not have occurred but for that protected status; and three, that it was severe or pervasive enough to alter the conditions of employment. Victor v. State.”

“Here, plaintiff did not establish that defendants viewed him as anything other than obese, which is not a protected class under the LAD,” Haas wrote.