STAR-LEDGER - April 1989

In New Jersey's first case to recognize obesity as a handicap, the director of the Division on Civil Rights yesterday accepted an administrative law judge's decision awarding $10,000 plus six years of back pay to a South Jersey man fired because his superiors thought his obesity made him unsuited for promotion.

Ollie H. Hawkins, director of the division, found Joseph Gimello, 44, a 5 foot, 8 inch, 270 pound Gloucester Township man, had been a victim of illegal discrimination when he was fired from his job as the Cherry Hill office manager for Agency Rent-A-Car.

"It is my finding that the administrative law judge's assessment of complainant's embarrassment, humiliation and stress is fully supported by the record. In analyzing the evidence, I find that complainant had to apply for food stamps, borrow money from relatives, and sell off assets in order to meet bills and feed his family," Hawkins said in affirming the award. Gimello had a good work record and received bonuses, commendations and letters of praise until Rick Brindisi, the eastern regional manager, and Vincent Garrenton, vice president of operations, met Gimello in person, Hawkins' decision said.

Brindisi told Gimello's immediate supervisor that he did not think Gimello was promotable because of his weight, Hawkin's ruling said. He feared that Gimello would not be able to move around, which was a requirement of the district manager position, the director said.

During a surprise visit to his branch office, Garrenton allegedly called Gimello a "fat slob" and went on to say if he were promoted he would hire fat, sloppy people, according to Hawkins' decision.

Following an eight-day hearing, Administrative Law Judge Kathleen Duncan ordered Gimello's former employer, an Ohio-based-company with 20 offices in New Jersey and 400 nationwide, to pay him six years of back pay, $2,876 to cover expenses he incurred seeking new employment and $10,000 for emotional distress.

During the hearing, company officials insisted Gimello was fired because of the high turnover rate among management trainees in his branch, but Duncan found that concern with his weight was "the primary reason."

Duncan ruled that obesity is a handicap under the New Jersey Law Against Discrimination, meaning it is unlawful to fire someone solely because of his weight unless there is evidence that he is physically unable to do the job. In this particular case, Duncan found no such evidence.

Normally. reinstatement would be ordered in such a case, but Duncan pointed out that it had not been sought by Gimello, who has since found employment with Insurance-Rent-A-Car in Moorestown.

The judge did not award anything to Gimello's wife, Ida Mae Terrie Gimello, who had been working part-time at Agency doing tag and title paperwork for the company. She was fired after her husband because Agency officials feared she would retaliate for her husband's termination by destroying company documents, according to Duncan's findings.

After Duncan issued her ruling. both sides were given an opportunity to object before the civil rights director ruled. The director has the authority to accept, reject or modify an administrative law judge's decision.

Yesterday. Hawkins said. "I concur with the major portion of the initial decision recommended by the Honorable Judge Duncan and hereby adopt it as my finding of fact and conclusions of law."

James Mackevich, the Cranford attorney who represented Agency, said, "We disagreed entirely with the finding that Mr. Gimello was discriminated against. It just is not true."

He maintained that Gimello was fired because 30 employees had left the office where he was manager in 40 months. He also said determining the amount of back pay-owed Gimello would be a "monumental" task that would take at least six months.

Since the salaries of office managers at Agency vary based on branch revenues, the company was ordered to reimburse Gimello at the same rate paid to the company's highest paid office manager between June 10, 1983, and the date of the director's decision, less any interim earnings and the value of the automobile Gimello received when he went to work for Insurance Rent-A-Car.

Joel S. Selikoff, the lawyer for Gimello, said, "Our feeling is one of joy. Obviously, we feel the decision was correct."

Selikoff had asked the director to increase Gimello's award for pain and humiliation to $50,000, but Hawkins rejected that request. Neither Gimello nor his wife could be reached for comment yesterday.