Kertesz v. Colony Tire Corp (Sept. 30, 2025)

Case details
Full caption
Kertesz v. Colony Tire Corp et al.
Country
United States
Jurisdiction
New Jersey (NJ)
Court
New Jersey Supreme Court
Decided
Sept. 30, 2025
Disposition
Motion Denied
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2779094Only the Westlaw citation is currently available.NOT FOR PUBLICATIONUnited States District Court, D. New Jersey.ERIK KERTESZ, Plaintiff,v.COLONY TIRE CORPORATION, et al., Defendants.Civil Action No. 20-12364|Filed 09/30/2025OPINIONHon. Jamel K. Semper United States District Judge*1 THIS MATTER comes before the Court on (1)Defendants Colony Tire Corporation (“Colony Tire”),Charles “Charlie” Creighton,1 and Scott Creighton's(“Defendants”) motion for summary judgment (ECF 95,“Defendants’ Motion” or “Defs. Mot.”) and (2) PlaintiffErik Kertesz's (“Kertesz” or “Plaintiff”) motion for summaryjudgment. (ECF 96, “Plaintiff's Motion” or “Pl. Mot.”) Theparties filed briefs in opposition to each respective motion.(ECF 99, “Defs. Opp.”; ECF 100, “Pl. Opp.”) The partiesalso filed reply briefs. (ECF 103, “Defs. Reply”; ECF 109,“Pl. Reply”.) The Court reviewed the parties’ submissionsand decided the motion without oral argument pursuant toFederal Rule of Civil Procedure 78 and Local Civil Rule 78.1.For the reasons stated below, Plaintiff's motion for summaryjudgment is DENIED and Defendants’ motion for summaryjudgment is GRANTED IN PART and DENIED IN PART.I. FACTUAL BACKGROUND AND PROCEDURALHISTORY2The present lawsuit arises from Plaintiff's former employmentwith Colony Tire. Defendant is a privately-owned companythat provides tire care, auto repair, and maintenance services,as well as wholesale tire distribution via its subsidiaryAtlantic Tire Distributors (“Atlantic Tire”). (DSMF 1.) Atthe time the parties filed motions for summary judgment,Defendant Charlie Creighton3 was CEO of Colony Tire,and Scott Creighton, his son, was President. (Id.) Plaintiffbegan his employment at Colony Tire in August 2017 as theGeneral Manager of Atlantic Tire. (Id. 9; PSMF 7.) DuringPlaintiff's employment as General Manager of Atlantic Tire,Plaintiff was responsible for Atlantic Tire's wholesale tiredistribution operations, including its management, sales staff,and the operations of warehouses. (DSMF 10; PSMF 8.)Plaintiff's responsibilities included visiting Colony Tire's sixwarehouses. (DSMF 11; PSMF 9.)*2 Plaintiff signed an employment agreement on January1, 2018, which formalized his role as General Manager ofAtlantic Tire. (DSMF 12.) The Employment Agreementimplies, but does not explicitly state, that Plaintiff wasexpected to move to North Carolina from New Jersey for hisrole at Colony Tire. (See ECF 95-3, Certification of JosephDeBlasio, “DeBlasio Cert.”; ECF 95-5, DeBlasio Cert. Ex.G.)4 On January 30, 2019, Plaintiff suffered a heart attack.(DSMF 16; PSMF 10.) On that same day, Scott Creightonsent a text message to Plaintiff informing Plaintiff that hewould send an email “about you so everyone can pray foryou but I'll wait to hear from you about who do you wantpeople to call/email?” (DSMF 16; ECF 95-5, DeBlasioCert. Ex. I.) Plaintiff responded: “Thanks it is ok if peoplecall.” (Id.) On February 28, 2019, Scott Creighton textedPlaintiff again, stating, “[a] lot of people asked last weekhow you were doing. Would you like me or you to send outan update to all users on how you're doing?” (DSMF 17(citing DeBlasio Cert. Ex. J).) Plaintiff responded, “Okay,you can send something.” (Id.) Colony Tire paid Plaintiff hisfull salary while he recovered from his heart attack. (DSMF¶¶ 18-19.) Plaintiff maintains that he worked as usual whilerecovering from his heart attack. (PSMF 11.)In July 2019, less than a year after his heart attack, Plaintiffwas diagnosed with throat cancer. (DSMF 20; PSMF 12.) Plaintiff informed Charlie and Scott Creighton of thediagnosis. (DSMF 20; PSMF 12.) On July 9, 2019,Plaintiff emailed Scott and Charlie Creighton, “Just leavingthe hospital. Procedure went ok. The location of the massmakes inoperable [sic]. I have an appointment on Thursdayto discuss plan ‘B’.” (PSMF ¶¶ 13-14; ECF 97, Declarationof Tyrone Blackburn5 (“Blackburn Decl.”); ECF 97-8,Blackburn Decl. Ex. H.) On the same day, Charlie Creightonresponded: “So very sorry. Do you plan to update yourAssociates? Already done it? Want us to do it?” (Id.) Plaintiffreplied, “[I] will update my associates when I have plan‘B’.” (Id.) Plaintiff testified that his doctors recommendedproton treatment for his cancer diagnosis; the treatment wasscheduled to begin on August 19, 2019. (DSMF 22; ECF95-4, DeBlasio Cert. Ex. C, Kertesz Dep. Tr., at 187:16-188:5,202:14-24.)
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2On August 19, 2019, Plaintiff reached out to Colony Tire'sHuman Resources Manager, Adora Ambrose, to ask aboutFMLA leave. (DSMF 24; ECF 95-6, DeBlasio Cert. Ex. N.)Kertesz stated, in part, “Just spoke with Scott he said that Ineed to go out on FMLA6 because it's required by law andthe insurance. How does this all work as far as pay?” (ECF95-6, DeBlasio Cert. Ex. N at D-00076.) Ambrose replied toPlaintiff on the same day and included details about paymentand health benefits during FMLA leave. (Id. at D-00075.)After some exchanges back and forth, on August 26, 2019,Plaintiff wrote to Ambrose again, stating in part, “I gave theFMLA papers to my doctor for certification. I hope to havethem back soon so that I can get them back to you ASAP.” (Id.at D-00074.)On August 28, 2019, Colony Tire received the “Certificationof Health Care Provider for Employee's Serious HealthCondition” in support of Plaintiff's need for FMLA leave.(DSMF 26; ECF 95-6, DeBlasio Cert. Ex. Q, “FMLACertification”.) Plaintiff's request for FMLA leave wasgranted on September 4, 2019. (DSMF 26; ECF 95-7,DeBlasio Cert. Ex. R.) Although Colony Tire providedPlaintiff with an application for short-term disability benefits,Plaintiff did not return the application. (DSMF 25.) AfterPlaintiff was diagnosed with cancer, individual DefendantsCharlie Creighton and Scott Creighton sent the followingemails that contained information about Plaintiff:• On July 23, 2019, Scott Creighton replied to a work-related email with ten recipients, including Plaintiff,advising that “Erik is meeting with doctors to treat hisnewfound cancer” (DSMF 21; ECF 95-6, DeBlasioCert. Ex. L (“July 23, 2019 Email”); PSMF 15; ECF97-16, Blackburn Cert. Ex. P.)*3 • On August 16, 2019, Charlie Creighton sent anemail to “all users” within Colony Tire, stating, “ErikKertesz has been diagnosed with a cancer tumor behindhis throat. He will begin treatment Aug. 19 at U PennHospital. Please [keep] him and his family in yourprayers. God Bless them.” (DSMF 23; ECF 95-6,DeBlasio Cert. Ex. M (“August 16, 2019 Email”); PSMF 16; ECF 97-2, Blackburn Cert. Ex. B.)• On September 11, 2019, Scott Creighton emailed onevendor and Plaintiff, stating, “Erik is out until sometimein October being treated for a cancerous tumor in [h]isthroat. That week is not good for me. let [sic] me look atcalendar and get back to you. thanks [sic].” (DSMF 27;ECF 95-7, DeBlasio Cert. Ex. S (“September 11, 2019Email”); PSMF 17; ECF 97-3, Blackburn Cert. Ex. C.)• On October 7, 2019, one outside sales representativeemailed Plaintiff and Scott Creighton asking for a timeto meet. (DSMF 29; ECF 95-7, DeBlasio Cert. Ex.U (“October 7, 2019 Email”); PSMF 19; ECF 97-4,Blackburn Cert. Ex. D.) Scott Creighton replied to thesales representative and Plaintiff, stating that Plaintiffwas “still out finishing up chemo and radiation forcancer.” (Id.)• On October 18, 2019, Scott Creighton sent an emailto Atlantic@colonytire.com,7 providing notice that theColony Tire planned to postpone an Atlantic TireIncentive trip for customers (the “Incentive Trip”).(DSMF 30; ECF 95-7, DeBlasio Cert. Ex. V (“October18, 2019 Email”); PSMF ¶¶ 20-21; ECF 97-5, BlackburnCert. Ex. E.) In explaining the reasons for the cancelationof the Atlantic Tire Incentive Trip, Scott Creightonwrote, in part, that he did a “terrible job” taking Plaintiff'splace while Plaintiff was out with his “illnesses thisyear.” (Id.) Scott Creighton further stated, “Please tryto explain what our circumstances have been this yearif and when you need to tell your customer about thepostponement. Thanks.” (Id.)On November 7, 2019, Plaintiff submitted a doctor's noteclearing him to return to work on November 11, 2019, andPlaintiff returned to work on that date. (DSMF 31; ECF95-7, DeBlasio Cert. Exs. W, X.) On November 14, 2019,Plaintiff emailed Scott Creighton, copying Charlie Creightonand Andrew Bergeron regarding the Atlantic Tire IncentiveTrip. (PSMF 22.) Plaintiff wrote, in part:I also want to mention the fact Iam very upset with the uncomfortablesituation that you have created forme regarding this trip. Not only isit unprofessional and poor customerservice to cancel an incentive trip onsuch short notice but, the fact thatyou told everyone involved that itwas “due to my illnesses” and to“please explain the circumstances” iscompletely unacceptable. Obviously,the customers, salespeople, andvendors were going to be unhappy
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3with the decision and clearly, theywere since the trip was reinstated. Myhealth is my private business and I'mnot ok with you using me as an excusejust because someone else did nottake over the task while I was out onFMLA. (ECF 97-10, Blackburn Cert.Ex. J.)*4 On November 20, 2019, Plaintiff missed one day ofwork for a medical appointment in New Jersey. (DSMF 33.) On the same day, Plaintiff emailed Charlie Creighton,Scott Creighton, and Andrew Bergeron with the subjectline, “Update.” (ECF 95-7, DeBlasio Cert. Ex. Z.) In thatemail, Plaintiff stated: “I have developed lymphedema [sic].It does [not] impact my ability to work but requires that Ireceive weekly treatment. I will arrange to have this done inNC.” (Id. at D-00138.) Plaintiff forwarded the email to AdoraAmbrose, clarifying that the appointments would not impact“working.” (Id.) In response, Ambrose replied, “I am happyto hear that your condition will not affect your ability to work.Upon your return to work, please come meet with me so thatwe may discuss any potential accommodation that you mayneed.” (Id.)Plaintiff replied to Ambrose the same day, informing herthat “[a]s of right now the only accommodation that I willpotentially need is flexibility in my work schedule so that Ican attend weekly appointments.” (Id. at D-00137.) Plaintiffalso stated, “Currently, I have not decided on which specialistI will be seeing nor have I scheduled any appointmentsso, I do not know what appointment times are available orwhat flexibility might be needed.” (Id.) Less than 24 hourslater, Plaintiff wrote to Adora again, stating, “Just wantedto make sure that you received this. [sic] Will this be anissue?” (Id.) The same day, on November 21, 2019, Ambrosereplied that she “cannot determine if there will be an issuebased on the information you have provided.” (Id.) Her emailcontinued, “[a]s I stated before, please come see me upon yourreturn to Edenton [North Carolina], and we can discuss youraccommodation needs further. If you need information beforeyour arrival, please feel free to call me directly.” (Id.)The next day, on November 22, 2019, Plaintiff wrote toAmbrose in the same email chain, asking if she would be“docking” his pay for the time he was at his follow-upappointment given that he “used up” his paid vacation andsick days when he was “forced to go out on FMLA.” (Id.)Ambrose replied: “Yes[.]” (Id. at D-00136.) Plaintiff replied,asking how many hours were being withheld, and askingAmbrose to “please explain why this is the first-time thatsenior management has decided to handle it this way”since he was “out numerous times this past year for doctorappointments and [his] pay was not withheld.” (Id.) Plaintiffalso noted that he “continue[s] to work remotely answeringcalls, emails, etc.” (Id.) Ambrose replied by asking Plaintiff,“How many hours have you missed this pay period? AsI previously stated, please come see me upon your returnand we can discuss and clarify further.” (Id.) Also onNovember 22, 2019, Plaintiff reiterated his concern thathis pay was previously not withheld, and further stated,“[b]ased on your previous email responses and the currentsituation all communication regarding my concerns will bedone in writing. I have no intention of discussing anythingrelated to this situation unless I have counsel present, or theconversation is recorded.” (Id.)On November 24, 2019, Plaintiff sent Ambrose and CharlieCreighton an email regarding the exhaustion of his vacationand sick pay. (DSMF 35.) In the email, Plaintiff stated: “I'llbe extremely clear since you are supposedly confused by myquestion. I specifically asked you why my pay was dockedthis week, when it has never been docked this year, despite thecircumstances being the same.” (ECF 95-8, DeBlasio Cert.Ex. AA.) He continued, in relevant part,Claiming that you are “completely unaware of that timeyou have taken off thus far” is absurd and a blatant lie.Since January of 2019 to date, there have been numerous,consecutive periods of times when I have been away fromthe office, working under the same circumstances ... I didnot “elect to leave without pay” this week, as you claim.Rather, as I have in the past, I reported my time away andcontinued to carry out my job responsibilities during mytime out of the office. (Id.)*5 The next day, on November 25, 2019, a little over twoweeks after Plaintiff returned from FMLA leave, CharlieCreighton sent Plaintiff a notice that Colony Tire hadterminated Plaintiff's employment (the “Termination Letter”).(DSMF 36; PSMF ¶¶ 35-36.) The Termination Letter stated,in part, “I was very disappointed to read your most recentemail to Adora in which you talked down to her and calledher a liar when she was merely trying to do her job.” (ECF95-8, DeBlasio Cert. Ex. BB.) It continued, “it has been twoweeks since you returned to work and you have not even metwith or discussed face-to-face anything with any member ofour senior management.” (Id.)
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4Plaintiff filed his Complaint in New Jersey state court onAugust 5, 2020. (ECF 1, “Compl.”) The Complaint includesclaims for common law invasion of privacy against ColonyTire (Count One), Charlie Creighton (Count Two), andScott Creighton (Count Three, together with Counts Oneand Two, the “Invasion of Privacy Claims”); Failure toAccommodate in violation of the New Jersey Law AgainstDiscrimination (“NJLAD”), N.J. Stat. Ann 10:5-1, et seq.,against all Defendants (Count Four); and Aiding and Abettingin violation of the New Jersey Law Against Discrimination,10:5-12(e), against Charlie Creighton and Scott Creighton(together, the “Creightons”) (Count Five). (ECF 1; ECF 95-4,DeBlasio Cert. Ex. A.) On September 4, 2020, Defendantsremoved this action to federal court. (Id.) On September 11,2020, Defendants moved to transfer the case to the U.S.District Court for the Eastern District of North Carolina.(ECF 2.) On June 14, 2021, Magistrate Judge James B. Clarkissued a Report and Recommendation denying Defendants’motion to transfer (ECF 15), which the Court adopted onJanuary 3, 2022. (ECF 22.) Throughout the course of thislitigation, Plaintiff moved to amend the Complaint threeseparate times.8 (ECF 41; ECF 48; ECF 75.) Plaintiff's firsttwo motions to amend were denied; he withdrew the third.(ECF 47; ECF 62; ECF 81.)On December 20, 2024, Defendants and Plaintiff filedrespective motions for summary judgment (ECF 95,Defendants’ Motion; ECF 96, Plaintiff's Motion.) Eachmoved for summary judgment on all of Plaintiff's claims.(See id.) On January 17, 2025, Defendants filed an oppositionto Plaintiff's Motion. (ECF 99, Defs. Opp.)9 On the sameday, Plaintiff filed an opposition to Defendants’ Motion(ECF 100, Pl. Opp.) and an “Affidavit in Opposition” tothe exhibits attached to the DeBlasio Certification in supportof Defendants’ Motion (ECF 101).10 The following day,January 18, 2025, Plaintiff filed a Response to Defendants’Statement of Undisputed Material Facts. (ECF 102.) OnJanuary 27, 2025, Defendants filed a reply in further supportof their Motion. (ECF 103, Defs. Reply) and a respondingstatement of undisputed material facts (ECF 103-1). Also onJanuary 27, 2025, Plaintiff filed a reply in further supportof his Motion (ECF 104) and a supplemental statementof undisputed material facts responding to Defendants’objections (ECF 105). Because Plaintiff's filing at ECF 104did not conform to Local Civil Rule 7.2, the Court allowedPlaintiff to filing a conforming reply (ECF 108), whichPlaintiff filed on February 7, 2025. (ECF 109, Pl. Reply.)11*6 On July 24, 2025, Plaintiff's attorney filed a “Noticeof Errata” to correct erroneous citation and quotation errorscontained in all four briefs Plaintiff filed in support ofhis Motion for summary judgment and in opposition toDefendants’ Motion for summary judgment. (ECF 114.) Inthis opinion, the Court will not consider Plaintiff's amendedbriefs or the errata at ECF 114. Instead, the Court treats anypropositions or arguments supported by incorrect or made-upcitations as unsupported.12II. LEGAL STANDARDFederal Rule of Civil Procedure 56(a) provides that summaryjudgment should be granted if the movant shows that “there isno genuine issue as to any material fact and the moving partyis entitled to judgment as a matter of law.” Kreschollek v. S.Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000); see alsoAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).In deciding a motion for summary judgment, a court mustconstrue all facts and inferences in the light most favorable tothe nonmoving party. See Boyle v. Cnty. of Allegheny Pa., 139F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Del. River PortAuth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). Themoving party bears the burden of establishing that no genuineissue of material fact remains. See Celotex Corp. v. Catrett,477 U.S. 317, 322-23 (1986). “[W]ith respect to an issue onwhich the nonmoving party bears the burden of proof ... theburden on the moving party may be discharged by ‘showing’— that is, pointing out to the district court — that there is anabsence of evidence to support the nonmoving party's case.”Id. at 325.Once the moving party has met that threshold burden, thenon-moving party “must do more than simply show thatthere is some metaphysical doubt as to the material facts.”Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475U.S. 574, 586 (1986). A fact is only “material” for purposes ofa summary judgment motion if a dispute over that fact “mightaffect the outcome of the suit under the governing law.”Anderson, 477 U.S. at 248. A dispute about a material fact is“genuine” if “the evidence is such that a reasonable jury couldreturn a verdict for the nonmoving party.” Id. Unsupportedallegations, subjective beliefs, or argument alone, however,cannot forestall summary judgment. See Lujan v. Nat'lWildlife Fed'n, 497 U.S. 871, 888 (1988) (nonmoving partymay not successfully oppose summary judgment motion bysimply replacing “conclusory allegations of the complaint oranswer with conclusory allegations of an affidavit.”). Thus,
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5if the nonmoving party fails “to make a showing sufficient toestablish the existence of an element essential to that party'scase, and on which that party will bear the burden of proof attrial... there can be ‘no genuine issue of material fact,’ sincea complete failure of proof concerning an essential elementof the nonmoving party's case necessarily renders all otherfacts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).Moreover, the “mere existence of some alleged factual disputebetween the parties will not defeat an otherwise properlysupported motion for summary judgment; the requirement isthat there be no genuine issue of material fact.” Anderson, 477U.S. at 247-48.III. ANALYSISA. Invasion of Privacy Claims (Counts One, Two, andThree)*7 The parties both argue that they are entitled to summaryjudgment on the Invasion of Privacy Claims, which ariseunder New Jersey law. (See Defs. Br. at 5-13; Pl. Br. at11-17.) Plaintiff's Invasion of Privacy Claims are premisedon Charlie and Scott Creighton's July 23, 2019; August 16,2019; September 11, 2019; October 7, 2019; and October 18,2019 Emails (together, the “2019 Emails”), which referencedPlaintiff's “cancer” and “illnesses.” (See Compl. ¶¶ 67-90; Pl.Br. at 7-9, 11-17; ECF 95-6, DeBlasio Cert. Ex. L; ECF 95-6,DeBlasio Cert. Ex. M; ECF 95-7, DeBlasio Cert. Ex. S; ECF95-7, DeBlasio Cert. Ex. U; ECF 95-7, DeBlasio Cert. Ex.V.) New Jersey Courts recognize a common law action forinvasion of privacy. See Romaine v. Kallinger, 109 N.J. 282,297-98 (1988). Under New Jersey law, the tort of invasion ofprivacy encompasses four scenarios:(1) intrusion (e.g., intrusion onplaintiff's physical solitude orseclusion, as by invading hisor her home, illegally searching,eavesdropping, or prying into personalaffairs); (2) public disclosure ofprivate facts (e.g., making publicprivate information about plaintiff);(3) placing plaintiff in a false lightin the public eye (which need not bedefamatory, but must be somethingthat would be objectionable to theordinary reasonable person); and (4)appropriation, for the defendant'sbenefit, of the plaintiff's name orlikeness.Rumbauskas v. Cantor, 649 A.2d 853 (N.J. 1994).Plaintiff alleges that Defendants committed the tort ofinvasion of privacy based on the second scenario, publicdisclosure of private facts. (Pl. Br. at 12-13.) The tort ofinvasion of privacy by publication of private facts involvesthe following elements: “[1] the matters revealed wereactually private, [2] dissemination of such facts wouldbe offensive to a reasonable person, and [3] there is nolegitimate interest of the public in being apprised of the factspublicized.” Romaine, 109 N.J. at 297 (internal quotationomitted).Defendants argue that summary judgment in their favor iswarranted on the Invasion of Privacy Claims because (1)Plaintiff consented to the disclosures in the 2019 Emails; (2)the “publicity” of the 2019 Emails is insufficient to supportan unlawful invasion of privacy; and (3) no reasonableperson would find the 2019 Emails offensive. (Defs. Br. at6-13; Defs. Opp. at 6-16; Defs. Reply at 3-10.) Conversely,Plaintiff argues that he is entitled to summary judgmentbecause (1) Defendants revealed Plaintiff's private medicalinformation publicly; (2) the unauthorized dissemination ofthis information would be “deeply offensive” to a reasonableperson; (3) there was a lack of legitimate public concern insharing the information; and (4) Plaintiff did not consent tothe disclosures. (Pl. Br. at 11-17; Pl. Reply at 7-8.)As an initial matter, the Court agrees with Defendants thatPlaintiff cannot maintain a cause of action for invasion ofprivacy based on disclosures in the July 23, 2019, September11, 2019, October 7, 2019, and October 18, 2019 Emails.But there is a genuine issue of material fact as to whetherthe August 16, 2019 Email constituted an invasion of privacywithout Plaintiff's consent.1. The July 23, 2019, September 11, 2019, October 7,2019, and October 18, 2019 EmailsBased on the undisputed facts in this case, the July 23, 2019,September 11, 2019, October 7, 2019, and October 18, 2019Emails do not as a matter of law constitute an invasionof privacy because Plaintiff cannot satisfy the publicityrequirement for these emails. Restatement (Second) of Tortsdefines “publicity” as “[a] matter [that] is made public, by
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6communicating it to the public at large, or to so many personsthat the matter must be regarded as substantially certain tobecome one of public knowledge ... Thus it is not an invasionof the right to privacy ... to communicate a fact concerningthe plaintiff's private life to a single person or even to a smallgroup of persons.” Restatement (Second) of Torts § 652D,Comment (a). See also Hamza v. United Cont'l Holdings,LLC, No. 19-8971, 2021 WL 3206814, at *4 (D.N.J. July29, 2021) (citing McNemar v. Disney Store, Inc., 91 F.3d610, 622 (3d Cir. 1996)) (“In New Jersey, publication meansthat information is ‘communicat[ed] to the public at large,or to so many persons that the matter must be regarded assubstantially certain to become one of public knowledge ....’”).*8 Here, it is undisputed that the July 23, 2019 Email hadnine recipients in addition to Plaintiff; the September 11, 2019Email and October 7, 2019 Email each had one recipientin addition to Plaintiff; and the October 18, 2019 Emailhad fifteen to twenty recipients. (See ECF 95-6, DeBlasioCert. Ex. L; ECF 95-7, DeBlasio Cert. Ex. S; ECF 95-7,DeBlasio Cert. Ex. U; ECF 95-7, DeBlasio Cert. Ex. V.)Dissemination to a single individual or a small group “isfar from communicating to a large enough group such that[Plaintiff's] information became public knowledge.” Foley v.Medicredit, Inc., No. 21-19764, 2022 WL 3020129, at *3(D.N.J. July 29, 2022) (citing Hamza, 2021 WL 3206814, at*10). Based on these numbers, the Court finds that the July 23,2019; September 11, 2019; October 7, 2019; and October 18,2019 Emails, which were sent to either a single individual ora small group, do not meet the “publicity” requirement for thetort of invasion of privacy and thus cannot sustain Plaintiff'sInvasion of Privacy Claims.2. The August 16, 2019 EmailThe final email that forms the basis of Plaintiff's Invasion ofPrivacy Claims is the August 16, 2019 Email from CharlieCreighton, which states, “Erik Kertesz has been diagnosedwith a cancer tumor behind his throat. He will begin treatmentAug. 19 at U Penn Hospital. Please [keep] him and his familyin your prayers. God bless them.” (DSMF 23; ECF 95-6,DeBlasio Cert. Ex. M; PSMF 16; ECF 97-2, Blackburn Cert.Ex. B.) There are issues of material fact with respect to thisemail, and the Court cannot conclude at this stage whether itwas an invasion of privacy as a matter of law.Unlike the other 2019 Emails, the August 16, 2019 Emailwas sent to two hundred people, all employees of ColonyTire. (Defs. Br. at 10; Defs. Opp. at 9 (citing S. CreightonDep. Tr. at 122:24-123:3); Pl. Br. at 12.) This number cansatisfy the publicity requirement of Plaintiff's invasion ofprivacy claim. Even though the recipients of the August 16,2019 Email were Plaintiff's coworkers, given the number ofrecipients, the Court is not persuaded that Defendants did notgive “sufficient publicity” to any of Plaintiff's private healthinformation. (Defs. Opp. at 10; see also id. at 15; Defs. Replyat 4-5 (noting that all of the email recipients were internal toColony Tire with the exception of two individual vendors).)As to the other elements of the tort, the August 16, 2019Email also includes private information. Although Plaintiff'scontention that “medical information, especially relating toserious conditions like cancer, is among the most sensitivecategories of personal information” is uncited (Pl. Br. at 12),Defendants tellingly do not explicitly contest that Plaintiff'scancer diagnosis and treatment information were private. (SeeDefs. Br. at 5-13; Defs. Opp. at 7-16.) The Court finds thatthe information shared in the August 16, 2019 Email can beconsidered private. See Restatement (Second) of Torts § 652D(1977) (categorizing “many unpleasant or disgraceful orhumiliating illnesses” as “normally entirely private matters”).However, “there is no liability for giving further publicityto what the plaintiff himself leaves open to the public eye.”Id. Here, there are disputed issues of material fact regardingPlaintiff's consent to the disclosures, which precludes thisCourt from concluding that Plaintiff had a reasonable privacyinterest and that the dissemination of information in theAugust 16, 2019 Email “would [or would not] be offensiveto a reasonable person.” Romaine, 109 N.J. at 297; see alsoChristie v. Nat'l Inst. for Newman Stud., No. 16-6572, 2019WL 1916204, at *12 (D.N.J. Apr. 30, 2019) (quoting Stengartv. Loving Care Agency, Inc., 990 A.2d 650, 660 (N.J. 2010))(“[W]hether an employee has a reasonable expectation ofprivacy in [his/her] particular work setting must be addressedon a case-by-case basis.”).*9 Defendants argue that Plaintiff consented to thedisclosures made in the 2019 Emails, including the August 16,2019 Email, and Plaintiff “cannot allege that he had a privacyinterest since he made no effort to keep the informationconfidential.” (Defs. Br. at 12.) Whether Plaintiff did or didnot consent to the disclosure of the information containedin any of the 2019 Emails, including (as relevant here) theAugust 16, 2019 Email, is an issue of fact that is in dispute.Defendants argue that Plaintiff (1) provided express consentat the time of his heart attack and (2) provided implied consentwhen he received the 2019 Emails and did not voice his
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7objections to them until he complained about being blamedfor the cancelation of the Incentive Trip. (Defs. Br. at 13; Defs.Reply at 6-8.) Plaintiff disagrees. (See Pl. Opp. at 6, 9; Pl.Reply at 11.)As to express consent, the parties’ version of events conflict.In support of their position, Defendants point to the January30, 2019 and February 28, 2019 text messages between ScottCreighton and Plaintiff, in which Plaintiff expressly gaveconsent for Scott Creighton to send emails to “all users”with updates regarding Plaintiff's heart attack. (See ECF95-5, DeBlasio Cert. Exs. I, J.) Defendants argue that thisconsent was ongoing through Plaintiff's cancer treatment anddiagnosis. (Defs. Br. at 7; Defs. Opp. at 8; Defs. Reply at6-8.) In contrast, Plaintiff maintains that those disclosureswere limited to the details of his heart attack and did notextend to disclosures regarding his cancer. (Pl. Br. at 14;see also ECF 95-4, DeBlasio Cert. Ex. C, Kertesz Dep.Tr., at 373:22-380:15 (testimony that Plaintiff did not giveCharlie and Scott Creighton permission to disclose his cancertreatment and diagnosis).)There are also issues of fact as to whether Plaintiff impliedlyconsented to the disclosures in the August 16, 2019 Email.On July 9, 2019, Charlie Creighton emailed Plaintiff, copyingScott Creighton, in response to Plaintiff's cancer diagnosis:“So very sorry. Do you plan to update your Associates?Already done it? Want us to do it?” (ECF 97-8, BlackburnDecl. Ex. H.) Plaintiff replied, “I will update my associateswhen I have [a] plan ‘B’[.]” (Id.) Whether Plaintiff's messagewas intended to stop the Creightons from disseminating anyinformation about his diagnosis is ambiguous, especially inlight of Plaintiff's subsequent failure to timely object to the2019 Emails. Specifically, Plaintiff received the 2019 Emailson July 23, 2019; August 16, 2019; September 11, 2019;October 7, 2019; and October 18, 2019 disclosing Plaintiff'scancer diagnosis. But Plaintiff did not object to the disclosureof that information until November 14, 2019—three monthsafter the August 16, 2019 email—when Plaintiff emailedScott Creighton, copying Charlie Creighton and AndrewBergeron regarding the Atlantic Tire Incentive Trip. (PSMF 22; ECF 97-10, Blackburn Cert. Ex. J.) In that email, Plaintifftook issue with what he viewed as Scott Creighton “using[Plaintiff] as an excuse” to cancel the Incentive Trip, notingthat “[m]y health is my private business[.]” (ECF 97-10,Blackburn Cert. Ex. J.) Plaintiff testified that he did not objectto the initial email he received on July 23, 2019 because hewas “intimidated by the way they [Scott and Charlie] wereacting”; he was “embarrassed”; and because “there is a stigmawith people who have cancer in the workplace.” (ECF 95-4,DeBlasio Cert. Ex. C, Kertesz Dep. Tr., at 151:15-20.)Based on the foregoing, the Court finds that there is agenuine issue of material fact in dispute related to Plaintiff'sinvasion of privacy claims against Charlie Creighton andColony Tire,13 and Defendants’ and Plaintiff's motionsfor summary judgment as to Counts One and Two areDENIED. Because the emails Defendant Scott Creightonsent do not satisfy the publicity requirement for an invasionof privacy claim, see supra Section III.A.1, Defendants’motion for summary judgment is GRANTED as to CountThree, invasion of privacy, against Scott Creighton. Plaintiff'smotion for summary judgment as to Count Three is DENIED.B. NJLAD Failure to Accommodate (Count Four)*10 Both Plaintiff and Defendants also move for summaryjudgment on Plaintiff's claim that Defendants failed toaccommodate Plaintiff under the NJLAD. (See Defs. Br. at13-16; Pl. Br. at 17-22.) Plaintiff argues that Defendantsviolated the NJLAD by failing to make accommodationsfor Plaintiff's disability, namely his cancer and lymphedema,which occurred as a result of his cancer treatments.14(Pl. Br. at 18-22; see also Pl. Opp. at 13.) In particular,Plaintiff argues that Defendants “refus[ed] to accommodatethe Plaintiff's reasonable requests for flexible scheduling andtime off for medical treatments[.]” (Pl. Br. at 22.) He alsocontends that Defendants failed to engage in the interactiveprocess as required under the NJLAD. (Id. at 20.) Defendants,conversely, argue that the uncontested record shows thatDefendants engaged in the interactive process with Plaintiffdespite never receiving a request to do so. (Defs. Br. at 14-16;Defs. Reply at 12.) They further argue that Plaintiff wasnever denied an accommodation for his cancer treatments andPlaintiff, not Defendants, failed to engage in the interactiveprocess regarding Plaintiff's lymphedema diagnosis. (Defs.Opp. at 16-20.) Finally, Defendants note that Plaintiff testifiedthat the only time he was denied an accommodation for adisability was when he was docked one day of pay for hisabsence on November 20, 2019 for a doctor's appointment.(Defs. Reply at 12 (citing Kertesz Dep. Tr. at 243:10-22,244:17-24, 327:19-25, 328:1-11).)The NJLAD “ ‘requires an employer to reasonablyaccommodate an employee's handicap.’ ” Royster v. NewJersey State Police, 152 A.3d 900, 910 (N.J. 2017) (quotingPotente v. County of Hudson, 900 A.2d 787 (N.J. 2006)).
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8To establish an NJLAD claim for failure to accommodate, aplaintiff must demonstrate that he or she:(1) qualifies as an individual witha disability, or [ ] is perceived ashaving a disability, as that has beendefined by statute; (2) is qualified toperform the essential functions of thejob, or was performing those essentialfunctions, either with or withoutreasonable accommodations; and (3)that defendant failed to reasonablyaccommodate [his or her] disabilities.Id. at 910 (quoting Victor v. State, 422, 4 A.3d 126 (N.J.2010)). “Although these elements do not mirror those of theADA, the same proofs are implicated[.]” Id. To make a primafacie case of failure to accommodate, a plaintiff does not needto show that he suffered an adverse employment action. SeeRichter v. Oakland Bd. of Educ., 252 A.3d 161, 175 (N.J.2021).An employee, not employer, must initiate a requestfor an accommodation. Although the request for anaccommodation need not formally invoke the words“reasonable accommodation,” the plaintiff must “nonethelessmake clear that the employee wants assistance for his or herdisability.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296,313 (3d Cir. 1999) (analyzing ADA claim). Once a requestfor accommodation is made, both parties have a duty to assistin the search for an appropriate reasonable accommodation.Tynan v. Vicinage 13 of Superior Ct., 798 A.2d 648, 657 (N.J.Super. Ct. App. Div. 2002). “[A]n employee cannot refuseto cooperate with an employer's efforts to accommodate hisdisability and then claim failure to accommodate.” Potente,900 A.2d at 792. Additionally, “[a]n employer's duty toaccommodate extends only so far as necessary to allow ‘adisabled employee to perform the essential functions of hisjob. It does not require acquiescence to the employee's everydemand.’ ” Tynan, 798 A.2d at 655 (quoting Vande Zande v.State of Wis. Dep't of Admin., 851 F.Supp. 353, 362 (W.D.Wis. 1994), aff'd, 44 F.3d 538 (7th Cir. 1995)).1. Defendants’ Accommodations of Plaintiff AfterFMLA LeaveThe evidence in the record before the Court creates agenuine issue of material fact as to whether Defendantsfailed to reasonable accommodate Plaintiff for hiscancer and lymphedema diagnoses. The Court rejectsPlaintiff's broadly worded and unsupported contentionthat Defendants generally “refus[ed] to accommodate thePlaintiff's reasonable requests for flexible scheduling andtime off for medical treatments,” but concludes that there areissues of fact as to whether Defendants failed to accommodatePlaintiff after Plaintiff returned from his FMLA leave.15*11 The first issue is whether Defendants met their legalobligations to reasonably accommodate Plaintiff for thedoctor's appointment he attended on November 20, 2019.(DSMF 33.) When asked at his deposition if he had everbeen denied an accommodation for a disability, Plaintiffpointed to only November 20, 2019, when he was dockedone day of pay because he had to miss one day of workfor a medical appointment following his return from FMLAleave.16 (ECF 95-4, DeBlasio Cert. Ex. C, Kertesz Dep.Tr., at 243:10-22, 327:19-328:11.) The record is unclear asto whether Plaintiff made Colony Tire aware of whether heneeded to miss a day of work for his medical appointment.See Taylor, 184 F.3d at 313 (employee must make clear thatthey need assistance for their disability). (See ECF 97-14,Blackburn Cert. Ex. N, Ambrose Dep. Tr., at 56:15-60:18(testifying that it was Plaintiff's responsibility to report timetaken off).) While Ambrose told Plaintiff she was unawareof the time Plaintiff had taken off after exhausting hisvacation and sick time during his FMLA leave (see ECF95-7, DeBlasio Cert. Ex. Z), Plaintiff stated by email toAmbrose, “[c]laiming that you are ‘completely unaware ofthat time you have taken off thus far’ is absurd and a blatantlie.” (ECF 95-8, DeBlasio Cert. Ex. AA.) Based on thisrecord, the Court cannot conclude whether Plaintiff requestedan accommodation.Next, there is also a genuine issue of material fact asto whether Defendants met their obligation to engage inthe interactive process regarding potential accommodationsfor Plaintiff's lymphedema treatment.17 On November 20,2019, Plaintiff informed Charlie Creighton, Scott Creighton,Andrew Bergeron, and Adora Ambrose that he would needweekly treatment for his lymphedema, which he plannedto have done in North Carolina. (ECF 95-7, DeBlasioCert. Ex. Z.) Ambrose requested Plaintiff meet with her todiscuss a potential accommodation once he returned to work.(Id.) Plaintiff informed Ambrose that he would “potentiallyneed...flexibility” in his work schedule to attend weekly
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.9appointments but also informed her that he had not scheduledany appointments yet and did not know “what flexibility[may] be needed.” (Id.) The next day, Plaintiff followed up,stating, “Just wanted to make sure that you received this. [sic]Will this be an issue?” (Id.) Ambrose replied that she could not“determine if there will be an issue based on the information[Plaintiff] provided.” (Id.) She further told him, “[a]s I statedbefore, please come see me upon your return to Edenton[North Carolina], and we can discuss your accommodationneeds further. If you need information before your arrival,please feel free to call me directly.” (Id.)The NLAD interactive process “requires employers to makea good faith effort to seek accommodations.” Bertolotti v.AutoZone, Inc., 132 F. Supp. 3d 590, 602 (D.N.J. 2015)(citing Taylor, 184 F.3d at 317). “Employers can show theirgood faith in a number of ways, such as taking steps likethe following: meet with the employee who requests anaccommodation, request information about the condition andwhat limitations the employee has, ask the employee what heor she specifically wants, [and] show some sign of havingconsidered [the] employee's request,” among others. Id.(quoting Taylor, 184 F.3d at 317). Here, the evidence showsthat Ambrose did take steps to meet with the Plaintiff about hisneed for an accommodation. (See ECF 95-7, DeBlasio Cert.Ex. Z.) Ambrose also completed a “Record of InteractiveProcess for Reasonable Accommodation” regarding theexchange, which stated: (1) that “no accommodation [was]specified” by Plaintiff; (2) that she had not received anymedical documentation from Plaintiff; and (3) as a result,Plaintiff's accommodation request was “undetermined.” (ECF103-2, Certification of Michael A. Tecza, Ex. C.)*12 However, it is not clear from the evidence whetherthe interactive process ever began or if it was stymiedby Plaintiff, who never explicitly agreed to meet withAmbrose regarding accommodations for his lymphedematreatment. (See ECF 95-7, DeBlasio Cert. Ex. Z.) Further,although this cause of action does not require a showingthat Plaintiff suffered an adverse employment action, ColonyTire terminated Plaintiff on November 25, 2019, just fivedays after he informed the Creightons and Ambrose that hewould need an accommodation for lymphedema treatments.(ECF 95-8, DeBlasio Cert. Ex. BB, Termination Letter.)There are issues of fact as to whether this termination wasconnected to the interactive process such that Plaintiff canargue Defendants cut off the interactive process prematurely,or whether it was entirely unrelated. In particular, thereis other evidence suggesting Plaintiff was discharged forreasons separate and apart from his need for accommodationsfor his lymphedema. (See, e.g., ECF 95-8, DeBlasio Cert. Ex.BB, Termination Letter; ECF 97-9, Blackburn Decl. Ex. I,S. Creighton Dep. Tr. at 43:25-44:6 (testifying that Plaintiffdid not correct logistics issues); id. at 45:6-10 (testifying thatPlaintiff's performance was not as good as his predecessor's);id. at 94:11-17, 95:14-96:13 (testifying that Plaintiff's positionwas based in North Carolina and he was not supposedto work remotely); ECF 97-13, Blackburn Decl. Ex. M,Bergeron Dep. Tr., at 31:18-32:4 (testifying that Plaintiffwas terminated because he did not come to the office todiscuss “anything” with senior management, including ScottCreighton).)2. Other NJLAD ClaimsPlaintiff and Defendants dispute whether this actioninvolves other NJLAD claims in addition to the failure toaccommodate claim. (See Defs. Opp. at 5-6; Pl. Reply at6-7.) The Court agrees with Defendants that Plaintiff's casedoes not include claims under the NJLAD for (1) retaliation;(2) disability discrimination; (3) wrongful discharge; or (4)any other NJLAD claims other than failure to accommodate(Count Four) and aiding and abetting (Count Five). (See Defs.Opp. at 5-6.) Plaintiff's Complaint plainly does not includeclaims for retaliation or discrimination based on Plaintiff'sdischarge. “Adding claims to a pleading is properly doneby amending the complaint; it is too late to introduce anadditional claim at the summary judgment stage.” Tironev. Trella, No. 03-257, 2007 WL 3170098, at *6 (D.N.J.Oct. 29, 2007) (citations omitted); see also Balanced BridgeFunding, LLC v. Mitnick L. Off., LLC, No. 21- 20512,2024 WL 3949334, at *5 (D.N.J. Aug. 27, 2024) (“Becauseplaintiff advances a different cause of action in its motionfor summary judgment than that alleged in its amendedcomplaint...I decline to consider plaintiff's new legal theoryfor the first time at summary judgment.”); St. Martin v. W.Windsor Twp. Police Dep't, 753 F. Supp. 3d 369, 400–01(D.N.J. 2024) (quoting Jones v. Treece, 774 F. App'x 65,67 (3d Cir. 2019)) (“As a general matter, a plaintiff ‘maynot amend his complaint through arguments in his brief inopposition to a motion for summary judgment.’ ”) The Courtrejects Plaintiff's attempts to shoehorn these claims in now,when Plaintiff, who is represented by counsel, should haveincluded them at the pleading stage.3. Defendants Charlie Creighton and Scott CreightonAlthough there are genuine issues of material fact as toColony Tire, Plaintiff cannot as a matter of law maintain this
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.10cause of action against Defendants Charlie Creighton andScott Creighton. See Cicchetti v. Morris Cnty. Sheriff's Off.,947 A.2d 626, 645 (N.J. 2008) (citations omitted) (“[T]heplain meaning of the definition of employer in the LAD doesnot include a supervisor”); see also Tarr v. Ciasulli, 853A.2d 921, 924 (N.J. 2004) (assessing claim against owner ofDefendant company pursuant to NJLAD aiding-and-abettingliability).Based on the foregoing, the Court DENIES Plaintiff's motionfor summary as to Count Four. The Court further DENIESColony Tire's motion for summary judgment as to CountFour, and GRANTS Defendants Charlie Creighton and ScottCreighton's motion for summary judgment as to Count Four.C. NJLAD Aiding and Abetting (Count 5)Defendants and Plaintiff also respectively move for summaryjudgment on Count 5 of the Complaint, Aiding and Abettingunder the NJLAD (N.J. Stat. Ann. 10:5-12(e)) againstthe individual Defendants Charlie and Scott Creighton.Defendants argue that as the alleged “primary wrongdoers,”Scott and Charlie Creighton cannot be liable to Plaintifffor aiding and abetting the wrongful conduct. (Defs. Br.at 17.) Plaintiff argues that he is entitled to summaryjudgment against the Creightons for aiding and abetting underthe NJLAD because the Creightons provided knowing andsubstantial assistance in violating New Jersey's common lawprivacy protections and NJLAD violations. (Pl. Br. at 27-33.)*13 Individuals, including supervisors, may be liable underthe NJLAD only insofar as they aid or abet an employer'sdiscrimination, and not for their direct acts. See Cicchetti,947 A.2d at 645 (“[I]ndividual liability of a supervisor foracts of discrimination or for creating or maintaining a hostileenvironment can only arise through the ‘aiding and abetting’mechanism that applies to ‘any person.’ ”) (citing N.J. Stat.Ann. § 10:5-12(e)).To hold an individual defendant liable as an aider or abettorof employment discrimination under the NJLAD, a plaintiffmust show that “(1) the employer whom the defendant aidsmust perform a wrongful act that causes an injury; (2) thedefendant must be generally aware of [his] role as part of anoverall illegal or tortious activity at the time that [he] providesthe assistance; and (3) the defendant must knowingly andsubstantially assist the principal violation.” O'Shea v. Twp. ofHillside, No. 20-7027, 2022 WL 17829402, at *5 (D.N.J. Dec.21, 2022) (citations omitted) (cleaned up).The Court limits its discussion to whether the Creightonsaided and abetted Colony Tire in its potential failure toaccommodate Plaintiff under the NJLAD.18 The Courtdenies Defendants’ and Plaintiff's motions for summaryjudgment on this cause of action because there are issues offact as to whether the Creightons were “generally aware of[their] role as part of an overall illegal or tortious activity” andwhether they “knowingly and substantially assist the principalviolation.” O'Shea, 2022 WL 17829402, at *5. Moreover,contrary to Defendants’ position, “courts both in this districtand New Jersey state courts have held that individually nameddefendants can be held personally liable for their own conductunder the aiding and abetting provision of the NJLAD.”Johnson v. Glob. Equip. Co., Inc., No. 24-08789, 2025 WL2654995, at *3 (D.N.J. Sept. 17, 2025) (citations omitted).There are genuine issues of material fact as to whetherthe Creightons aided or abetted Colony Tire in failing toaccommodate Plaintiff after he returned from FMLA leave,specifically as to time off that Plaintiff may have neededfor his doctor's appointment on November 20, 2019, andfor his subsequent doctor's appointments for lymphedematreatment. For example, Charlie Creighton testified thatPlaintiff would be responsible for informing Ambrose thathe needed to take time off work. (ECF 97-12, BlackburnCert. Ex. L, C. Creighton Dep. Tr., at 52:6-11.) However, inPlaintiff's November 20, 2019 email to Charlie Creighton,Scott Creighton, and Andrew Bergeron, he informed themof his lymphedema diagnosis and that while it “does [not]impact my ability to work,” the diagnosis “requires that Ireceive weekly treatment.” (ECF 95-7, DeBlasio Cert. Ex. Z.)Further, Charlie Creighton testified that he “probably” spoketo Ambrose about the November 24, 2019 email chain withthe subject line “Pay” (DeBlasio Cert. Ex. AA). (ECF 97-12,Blackburn Cert. Ex. L, C. Creighton Dep. Tr., at 60:11-20.)But although Charlie Creighton and Ambrose may have beenin touch about Plaintiff's complaints—made the day beforeColony Tire terminated him—Ambrose testified that she didnot assist Charlie Creighton in drafting Plaintiff's TerminationLetter. (ECF 97-14, Blackburn Cert. Ex. N, Ambrose Dep.Tr., at 79:13-15.) Finally, Charlie Creighton testified that he,Andrew Bergeron, and Scott Creighton made the decisionto terminate Plaintiff, a decision made days after Plaintiffinformed them that he needed treatment for lymphedema.(ECF 97-12, Blackburn Cert. Ex. L, C. Creighton Dep. Tr. at39:14-16.)*14 Based on this evidence, the Court concludes thatthe facts are contested as to the Creightons’ notice of and
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.11involvement in Plaintiff's request for accommodations andwhether they aided and abetted in denying Plaintiff reasonableaccommodations, should a factfinder find that Colony Tireis liable. Therefore, Defendants’ and Plaintiff's motions forsummary judgment as to Count Five are DENIED.CONCLUSIONFor the reasons stated above, Defendant's motion forsummary judgment (ECF 95) is GRANTED in part andDENIED in part. Plaintiff's motion for summary judgment(ECF 96) is DENIED. An appropriate order follows.All CitationsSlip Copy, 2025 WL 2779094Footnotes1On July 16, 2025, Plaintiff moved to substitute Susan Creighton for Defendant Charles Creighton followingCharles Creighton's death on May 15, 2025. (ECF 112, “Motion to Substitute”.) On August 15, 2025,Magistrate Judge James B. Clark granted Plaintiff's Motion to Substitute. (ECF 115.)2The facts and procedural history are drawn from Defendants’ brief in support of their motion for summaryjudgment (ECF 95-10, “Defs. Br.”), Plaintiff's brief in support of his motion for summary judgment (ECF 96-2,“Pl. Br.”), Defendants’ brief in opposition (ECF 99), Plaintiff's brief in opposition (ECF 100), Defendants’ briefin reply (ECF 103), Plaintiff's brief in reply (ECF 109) and the parties’ submissions of undisputed materialfacts (ECF 95-9, “DSMF”; ECF 97-17, “PSMF”) and responses to the submissions of undisputed materialfacts (ECF 99-1 (Defendants’ Response to PSMF); ECF 102 (Plaintiff's Response to DSMF)). The Court hasalso considered Defendants’ responding statement of undisputed material facts (ECF 103-1) and Plaintiff'ssupplemental statement of undisputed material facts responding to Defendants’ objections (ECF 105). TheCourt does not credit statements in these filings that contain legal argument or are unsupported by the record.See L. Civ. R. 56.1.3Defendant Charles Creighton died on May 15, 2025. (See ECF 112.)4The Employment Agreement states: “Provided your house is listed for sale at the proper market price, ColonyTire/Atlantic Tire will work with you in a very generous manner regarding your apartment/ rental house inEdenton [North Carolina].” (ECF 95-5, DeBlasio Cert. Ex. G.)5The Court disregards improper legal and factual arguments contained in the Declaration of Tyrone Blackburn.6“FMLA” refers to the Family Medical Leave Act, 29 U.S.C. §§ 2601 et seq.7Plaintiff's Statement of Undisputed Material Fact (PSMF) states that the October 18, 2019 email was sentto “over 200 employees.” (PSMF 21.) The email dated October 18, 2019 does not identify the number ofrecipients. Scott Creighton testified that the “Atlantic@colonytire.com” email address includes only 15 to 20management level and sales employees of Atlantic Tire, including Plaintiff. (See ECF 97-9, Blackburn Decl.Ex. I, S. Creighton Dep. Tr., at 74:22-75:6.) Plaintiff has not disputed this testimony, nor has Plaintiff citedany evidence in support of his contention that this email address includes over 200 employees. The Courttherefore treats Scott Creighton's testimony as uncontested.8Notably, in Plaintiff's second motion to amend the Complaint (ECF 48), Plaintiff attempted to add claims for,among others, “ADA Disability Discrimination”; “ADA Disability Retaliation”; FMLA “Involuntary Leave”; and“Retaliation under the New Jersey Law Against Discrimination.” (ECF 48-3.)
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.129Defendants appear to have erroneously filed two copies of their memorandum in opposition to Plaintiff'sMotion; the Certification of Michael A. Tecza in Support of Defendants’ Motion for Summary Judgment; andExhibit A to the Tecza Certification. (See ECF 98, ECF 99.) Because ECF 99 also includes Defendants’Response to Plaintiff's Statement of Undisputed Material Facts (ECF 99-1), the Court considers ECF 99 theoperative filing for purposes of this opinion.10Plaintiff's “Affidavit in Opposition” (ECF 101) includes argument and appears to function as a supplementalbrief; therefore, it is not in compliance with Fed R. Civ. P. 56(c)(4) and L. Civ. R. 56.1. Because Plaintiff alsofiled a brief in opposition to Defendants’ Motion (ECF 100), the Court does not consider Plaintiff's “Affidavitin Opposition” in this opinion.11The Court treats the filing at ECF 109 as Plaintiff's operative Reply in Further Support of its Motion forSummary Judgment.12The errors were the result of Plaintiff's attorney's use of artificial intelligence (“AI”) tools. (See ECF 114.) AsMagistrate Judge José R. Almonte has recently recognized, “[u]nfortunately, attorneys’ use of generative AIwithout proper oversight has become a prevalent issue for courts across the country ... those who rely onAI blindly, do so at their own peril.” OTG New York, Inc. v. OTTOGI Am., Inc., No. 24-CV-07209, 2025 WL2671460, at *2 (D.N.J. Sept. 18, 2025) (imposing monetary sanctions for party's use of AI in briefing). GivenPlaintiff's attorney's self-disclosure of his use of AI, along with his representation that he has taken continuinglegal education courses on the topic, the Court declines to impose sanctions at this time. (See ECF 114.)The Court does, however, caution Plaintiff's attorney: providing submissions to the Court with inaccurate andfalse information violates the New Jersey Rules of Professional Conduct. See, e.g., New Jersey Rules ofProfessional Conduct 3.1, 4.1(a)(1), 8.4(c), and 3.3. It is sanctionable conduct. See OTG, 2025 WL 2671460.In the event Plaintiff's attorney relies on AI without proper oversight again, the Court will not likely be so lenient.13To the extent that Plaintiff attempts to brings a claim under HIPAA (the Health Insurance Portability andAccountability Act, 42 U.S.C. § 1320d–1 et seq.) against Defendants, however, “that claim cannot go forwardas HIPAA creates no private federal remedy.” Wolf v. New Jersey, No. 17-2072, 2018 WL 1942522, at *6(D.N.J. Apr. 23, 2018).14Defendants accept that Plaintiff is disabled within the meaning of the law solely for purposes of their motionfor summary judgment. (Defs. Br. at 13 n.1.)15Although Plaintiff also argues that “[r]ather than engaging in the legally mandated interactive process, theDefendants coerced the Plaintiff into taking FMLA leave prematurely” (Pl. Opp. at 6; see also id. at 12),Plaintiff does not make any citations to the record supporting his argument that Defendants “forced” Plaintiffinto taking FMLA leave rather than explore other accommodations. (Id. at 12.) Because there is a “completefailure of proof concerning an essential element” of Plaintiff's case, Plaintiff's FMLA leave cannot form thebasis of his failure to accommodate claim. Katz, 972 F.2d at 55 (quoting Celotex, 477 U.S. at 322-23). Further,rather than a failure to accommodate claim, Plaintiff's argument instead appears to advance an “involuntaryleave” theory of FMLA interference, which has not been adopted by the Third Circuit. See Delp v. HexcelCorp., No. 25-00233, 2025 WL 2618766, at *10 (M.D. Pa. Sept. 10, 2025) (collecting cases).16The legality of Colony Tire docking Plaintiff's one day of pay is not at issue. (See generally Compl.)17New Jersey courts and courts in this District have applied a slightly different standard for a prima facie caseaddressing an employer's failure to participate in good faith in the interactive process: “(1) the employer knewabout the employee's disability; (2) the employee requested accommodations or assistance for his or herdisability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations;and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith.”
ERIK KERTESZ, Plaintiff, v. COLONY TIRE CORPORATION, et..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.13Gould v. New Jersey Dep't of Transp., No. 1164-23, 2025 WL 1165847, at *8 (N.J. Super. Ct. App. Div. Apr.22, 2025) (citing Tynan, 798 A.2d at 657); see also, e.g., Bertolotti v. AutoZone, Inc., 132 F. Supp. 3d 590,601-02 (D.N.J. 2015). Some courts in this District, meanwhile, have analyzed NJLAD and ADA failure toaccommodate causes of action as one claim, applying the aforementioned elements to a prima facie case.See, e.g., Hwaga v. RWJ Univ. Hosp., No. 17-04125, 2019 WL 13277388, at *5 (D.N.J. Oct. 16, 2019). Underboth this standard and Royster, 152 A.3d 910, the Court's outcome does not change; there are issues offact as to whether Defendants and Plaintiff respectively failed to engage in the interactive process and thuswhether Defendants failed to provide Plaintiff with reasonable accommodations.18As discussed in Section III.B.2, supra, claims for retaliation and discrimination against Colony Tire are not apart of this lawsuit and so the Court also does not consider liability for aiding and abetting those violations.Additionally, it is unlawful under the NJLAD “[f]or any person, whether an employer or an employee or not,to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt todo so.” N.J. Stat. Ann. 10:5-12(e) (emphasis added). Common law invasion of privacy does not arise underthe NJLAD and therefore the Creightons cannot be held liable for aiding and abetting alleged common lawprivacy violations pursuant to N.J. Stat. Ann. 10:5-12(e).End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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