Opinion
DOCKET NO. A-5866-13T3
09-28-2016
PAUL HENNIGAN, Plaintiff-Appellant, v. MERCK & CO., INC., Defendant-Respondent.
Elliott Louis Pell argued the cause for appellant. John K. Bennett argued the cause for respondent (Jackson Lewis, P.C., attorneys; Mr. Bennett, of counsel and on the brief; Janet O. Lee, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, Rothstadt, and Currier. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1117-11. Elliott Louis Pell argued the cause for appellant. John K. Bennett argued the cause for respondent (Jackson Lewis, P.C., attorneys; Mr. Bennett, of counsel and on the brief; Janet O. Lee, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Plaintiff Paul Hennigan appeals from the Law Division's grant of summary judgment to his former employer, defendant Merck & Co, Inc., dismissing his complaint with prejudice and awarding defendant counsel fees and costs. Plaintiff's claim arose from defendant's termination of plaintiff's employment following two investigations into allegations that plaintiff pursued a relationship with a coworker after she expressed a desire to be left alone. Plaintiff's complaint alleged his termination violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12, and public policy as discussed in Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980), and that defendant fraudulently concealed evidence. The Law Division granted defendant summary judgment on all three claims, finding them to be without any factual basis and awarded attorneys' fees after holding that plaintiff brought his LAD claim in bad faith.
Plaintiff's Notice of Appeal states he is challenging "each and every [o]rder entered in this action," including nine orders entered by the trial court. We do not view his general referral to all orders as being in compliance with Rule 2:5-1(f)(3). Based on the arguments plaintiff advanced in his brief, we discern his challenge is solely to the court's December 16, 2013 Order granting summary judgment and its April 8, 2014 and July 8, 2014 Orders granting defendant's motion for fees and costs.
On appeal, plaintiff argues the trial court's orders should be reversed because his LAD claim was not brought in bad faith, and there existed genuine issues as to material facts that should have prevented summary judgment from being granted regarding each of his claims. Defendant disagrees, arguing the court's decisions as to both plaintiff's substantive claims and the award of fees were supported by the motion record.
We have considered the parties' arguments in light of the record and the applicable legal principles. We affirm.
We review an order granting summary judgment de novo, applying the same standard used by the trial court, Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014), which requires summary judgment be denied if "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Townsend v. Pierre, 221 N.J. 36, 59 (2015) (quoting Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)); see also R. 4:46-2(c).
Applying this standard, we discern the following facts from the motion record. Defendant hired plaintiff in 1991 for a position as a Senior Systems Programmer. He received several promotions and raises over his eighteen-year career and earned positive reviews and bonuses annually.
The events leading to plaintiff's discharge began in 2007, when he started to interact socially and develop a friendship with a female co-worker, R.A., who worked in the same building as plaintiff. The two began to communicate frequently about their personal lives primarily through defendant's e-mail and electronic messaging systems. Their communications in 2007 and most of 2008 were "prolific, friendly, and at times, flirtatious." In November 17, 2008, R.A. asked plaintiff to end their personal contacts after her fiancé and plaintiff's wife expressed concerns about the relationship and plaintiff's wife sent R.A. a "threatening message." Although plaintiff was initially reluctant to end those communciations, he ultimately agreed to "abide by [R.A.'s] wishes." Despite that agreement, he admittedly continued to pursue R.A., sending her communications about her personal life and expressing his feelings for her, knowing she "didn't want [him] around."
Plaintiff discussed his feelings about R.A. with her direct supervisor, explaining "that he had feelings for [R.A.], and that he wished to have a relationship with her, but that [she] was not receptive to him." At the end of January 2009, the supervisor discussed the conversation with R.A. and then contacted defendant's Human Resources (HR) Leader, Mauro Canori, and plaintiff's supervisor, Michele D'Alessandro, to inform them of the conversation with plaintiff and suggest HR investigate his relationship with R.A.
HR initiated an investigation, conducted in part by Employee Relations Specialists Julie Reed and Michelle Boyd. On February 12, 2009, Reed interviewed R.A. and on February 20, Boyd and Canori interviewed plaintiff. According to Reed, R.A. characterized the relationship as one-sided from its inception, with plaintiff pursuing her — both physically and emotionally — and her attempting to fend off his advances. After the interview, Reed sent her notes to Canori and Boyd, and expressed "strong concerns about [plaintiff]" and his "strong pattern of inappropriate behavior."
According to Boyd, plaintiff characterized the romantic interest as initially mutual, though he acknowledged R.A. had since asked him to stop contacting her approximately four times. He also admitted to looking up R.A.'s address on the internet and driving to her house uninvited. At the end of the interview, plaintiff was told R.A. had expressed she did not want any contact with him, was warned not to contact her, and that "the improper use of [defendant's] property including email and [instant messenger] must stop." Canori also told plaintiff to provide "any documentation" he had demonstrating the initial mutuality of the romantic interest between him and R.A. After the interview with plaintiff, Boyd sent her notes from the interview to Canori and requested he "take a look at them and add [his] notes."
Despite the instruction not to contact R.A., plaintiff "waited for her as [they] were leaving work" that day and approached her in the back stairwell. He told R.A. he had been asked for copies of their emails and instant messages, and asked if she objected, to which she responded, "Do what you need to do." R.A. reported the interaction in the stairwell to Boyd, and told Boyd that when she later went to leave, plaintiff was "standing outside staring at her truck . . . shaking his head" and that "he was parked on the other side of the building so there was no reason for him to be where he was." R.A. also expressed that she had been concerned plaintiff would follow her home, and "asked if she could call security." Boyd told her that "if she had any concerns to give [security] a call."
On February 24, 2009, Boyd spoke with plaintiff "to reinforce the message that [he was] not to be in contact with [R.A.]," which he said he understood. The same day, plaintiff sent Boyd a letter in which he detailed his understanding of his relationship with R.A. and provided several emails and instant messages between the two. He acknowledged R.A. was "stating that she wants no further contact and . . . [that he] must honor her wishes as part of the workplace environment to which she is entitled," and agreed he would "not initiate conversation/communication."
As a result of the investigation, defendant concluded the relationship between plaintiff and R.A. had been consensual until late 2008, at which point "things started to differ between [them]." On or about March 17, 2009, plaintiff received a memo, entitled "Harassment Investigation and Resolution," which recounted plaintiff's and R.A.'s versions of their relationship, and informed him:
The investigation has not revealed evidence to support clearly either [R.A.'s] or your version of events. However, [R.A.] has expressed that continued contact with her is unwelcome. . . . I reviewed with you the Company's Workplace Harassment Policy M-12 and the Company's expectation that all of its employees conduct themselves in an appropriate manner and ensure that behavior aligns with both the spirit and the intent of the policy M-12. You have assured me that you understand fully the M-12 policy and will comply with its requirements. . . .The memo also enclosed a copy of the workplace harassment policy. Plaintiff signed the memo, acknowledging he had "read and underst[ood] the policy and agree[d] to abide by its terms." Plaintiff "understood from the . . . memo that he was to have no further contact with [R.A.]." A similar memo was later given to R.A. that stated the investigation's findings, notified her that plaintiff had been advised that further contact was unwelcome, and instructed her "to report promptly any behavior that [she] believe[d] to be contrary to the [workplace harassment] policy and to cooperate fully in any subsequent investigation."
. . . .
The company expects that your future behavior will be in accordance with Merck policies, guidelines and the expectations of your leadership role on the COMET team. Further allegations of the type that have been made in this matter, where substantiated, may result in disciplinary action, up to and including the termination of your employment.
While an initial draft of the memo to R.A. included language explaining that "the Company [does not] condone false reports of harassment" and that R.A. had "an obligation to not knowingly make a false claim of harassment", this language was removed from the final version of the memo given to R.A.
Despite his agreement to stay away from R.A. and defendant changing plaintiff's job responsibilities so that there was no longer any "reason for any workplace interaction with [R.A.]," plaintiff continued his efforts to have contact with her. As recorded by plaintiff in his personal journal, he "constantly tri[ed] to cross her path," though "ma[de] sure to [do so] in a circumstantial way so as to not put [himself] in danger of violating the policy." He would visit her floor when he "thought [R.A.] would be moving between meetings," walk by rooms he knew she would be in to "satisf[y] [his] desire to know her whereabouts," approach her in the hallway, leave the office when he saw she had signed off instant messenger, stop by her desk, and leave her notes.
Plaintiff also described in his journal several occasions on which he initiated contact with R.A. in April and May 2009, both in and out of the office, and recorded, among other personal details, what R.A. was wearing, who else she talked to, whether she was wearing her engagement ring, and whether her fiancé had dropped her off at work. In describing his interactions with R.A., plaintiff acknowledged that his actions violated the memo, and recognized that her reaction to him suggested his contact was unwelcome. R.A. conceded she occasionally engaged in brief conversations with plaintiff, but only to respond to plaintiff's greetings because "[i]t was the politically correct thing to do in a corporate environment" and she "needed [her] job" and could not afford to be laid off.
On two consecutive weekends in June 2009, plaintiff drove to R.A.'s house at approximately 10 p.m., and slowly circled her block, passing her house twice each time. R.A. and her fiancé witnessed plaintiff's "drive-by" on both occasions, and reported them to law enforcement. R.A. reported plaintiff's driving by and his contacts at the office to her supervisor and HR, which initiated a second investigation into plaintiff's conduct.
As part of the second investigation, Reed interviewed both R.A. and, together with Canori, plaintiff. Plaintiff admitted to initiating contact with R.A. on multiple occasions and to driving past her home despite his prior warning not to contact her. Defendant concluded its investigation and determined that plaintiff "knowingly violated" the memo given to him at the conclusion of the first investigation and the company's workplace harassment policy. Though Reed believed R.A. violated the terms of the memo by her post-warning communication with plaintiff, R.A. was never disciplined for her participation in their interactions.
On August 3, 2009, Canori and plaintiff's direct supervisor informed him that his employment was being terminated as a result of him violating the warning memo and the workplace harassment policy. In response, plaintiff
reiterated to [Canori] the concerns that [he] had had about the termination, . . . basically the way the investigation had been conducted, that [he] had mentioned to [Canori] that [he] had conversations with [R.A.] and that she conversed with [him], and to be taking the word of somebody who . . . had already put forward false allegations and not go with any of the witnesses that [he] had supplied just signaled a completely disparate treatment.
Plaintiff filed his complaint and, after the close of discovery, defendant filed a motion for summary judgment as to all three counts. Defendant argued that its actions were justified due to plaintiff's conduct. Plaintiff filed a certification in opposition that provided a history of his employment, referred to his belief he had been passed over for a position he wanted because unidentified co-workers asked him what his female supervisor had against him, stated that his contact with R.A. after the first investigation was consensual, and informed defendant that he believed he was being discriminated against because he was a man. In addition, plaintiff filed a brief in which he argued he established issues as to material facts that prevented summary judgment being entered. After considering the parties' written submissions and counsels' oral arguments, the court entered an order granting defendant's motion. It also issued a written decision stating the court's findings and reasons.
The brief consisted of one argument set forth on one page in one sentence that listed approximately nine allegations plaintiff relied upon in opposition to summary judgment.
In its written decision, the court first rejected plaintiff's LAD claim of reverse discrimination because plaintiff did not "establish a prima facie case of employment discrimination as [he was] unable to show that [defendant] is 'the unusual employer that discriminates against men.' [He] presented no argument that [defendant's] stated reasons for [his] termination were a pretext for discrimination." The court turned next to plaintiff's Pierce claims and identified them as being based upon the need for "the prevention of discrimination in employment decisions based on false charges of misconduct, the prevention of discrimination based on gender, and the guarantee of fair, reasonable treatment concerning the deprivation of process." The court found that plaintiff offered no evidence of any "alleged actions [by defendant] violat[ed] public policy," nor did he "state which . . . statute, rules or regulations were violated by [defendant]." In addition, the court concluded that because plaintiff's LAD claims were unsupported by any evidence, to the extent his common law termination claims rested upon the same facts, they too could not be sustained. Moreover, according to the court, to the extent plaintiff argued he was denied "due process," as an at-will employee he was not entitled to any process, but received it anyway in the form of the investigation conducted by defendant.
The court addressed plaintiff's fraudulent concealment argument and found his contention that defendant "intentionally withheld, altered, or destroyed notes and emails between and among [the employees involved in the investigation]" was equally without merit. The court concluded that to the extent there was evidence that certain notes or other documents may have existed, plaintiff "present[ed] no evidence that [it] was not obtainable from another source, that the evidence was material to this litigation, or that [defendant] intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation." Significantly, the court noted plaintiff failed to identify what information, if any, was contained in the alleged missing documents that was not otherwise available to him.
After the entry of summary judgment, defendant filed a motion for an award of counsel fees and costs pursuant to the LAD, N.J.S.A. 10:5-27.1, and the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1. The court granted defendant's motion in part, awarding only those attorneys' fees and costs relating to plaintiff's LAD claim, pursuant to N.J.S.A. 10:5-27.1. The court cited to the lack of any evidence plaintiff filed in opposition to defendant's summary judgment motion as to the LAD claim — i.e., plaintiff admitted he faced further discipline if he continued to contact R.A. — and found plaintiff's pursuit of the claim was therefore made with a "reckless disregard or purposeful obliviousness of the known facts" and thus in bad faith.
Plaintiff filed a motion for reconsideration of the court's order as to fees. On June 6, 2014, the court denied plaintiff's motion for reconsideration, issuing an order and statement of reasons on the same date. On July 8, 2014, the court entered an additional order fixing the amount of counsel fees and costs it was awarding to defendant at $58,545.33. Plaintiff moved for reconsideration of the fee award, which the court also denied.
This appeal followed.
Plaintiff contends the motion court erred in granting defendant summary judgment on his LAD claim, arguing the court applied the wrong standard for claims of reverse discrimination. He contends that he presented competent evidence giving rise to a genuine issue of material fact as to whether defendant discriminated against him based on his gender, and that the court mistakenly applied the standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), rather than "the controlling New Jersey precedent, Erickson v. Marsh & McLennan Co., 117 N.J. 539 (1990)," which he argues set forth a "malleable" standard for claims of reverse discrimination.
We conclude from our review that plaintiff failed to satisfy his burden in opposing summary judgment to come forward with "[c]ompetent opposition[, which] requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009)), certif. denied, 220 N.J. 269 (2015). Plaintiff's certification was not sufficient to raise a genuine issue of material fact to defeat summary judgment. See Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011); Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013). Plaintiff offered no proof that he was victimized by an "unusual employer who discriminates against the majority," Erickson, supra, 117 N.J. at 551, or, even assuming he established a prima facie LAD claim, that defendant's reason for firing him were a pretext for discrimination. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 458 (2005).
To establish a prima facie case in a reverse discrimination claim, plaintiff must prove that (1) "he has been victimized by an 'unusual employer who discriminates against the majority,'" Erickson, supra, 117 N.J. at 551, "(2) was performing in the position from which []he was terminated, (3) nevertheless was fired, and (4) the employer sought someone to perform the same work after []he left . . . ." Zive, supra, 182 N.J. at 457-58. --------
We find no merit to plaintiff's argument that the reason he was not selected for a position in the fall of 2008, was that D'Alessandro blocked his appointment because he is a man. He relies on his own assertion that "several of [d]efendant's executives in Europe, including a Vice President, asked him: 'What does Michele D'Alessandro have against you?'" Plaintiff does not, however, identify any of the people he spoke with, provide certifications from them, or even aver that a woman was chosen over him. Contrary to his argument, his certification does not give rise to any "undisputed facts [that] support a permissible inference that . . . D'Alessandro's animosity toward [him] was based on reverse discrimination."
Plaintiff also points to various aspects of the first investigation as evidence of discrimination — including, that it was initiated by R.A.'s female supervisor, that R.A. was only interviewed by a woman, and that language regarding the consequences of filing of false allegations of harassment was removed from R.A.'s memo. He neither alleges nor presents evidence that the investigation into his conduct differed in any way from investigations into allegations of harassment against female employees or some other reason why this evidence establishes reverse discrimination.
Plaintiff further argues that defendant's failure to discipline R.A. for her participation in their post-warning communications constitutes evidence of discrimination. There is no competent evidence, however, to suggest R.A. initiated any of their post-warning communications — plaintiff's allegation is supported only by his own self-serving statements made in his certification in opposition to defendant's motion for summary judgment. Further, Reed testified at her deposition that R.A. was not disciplined because plaintiff admitted that he initiated contact with R.A. To the extent that R.A.'s failure to promptly report plaintiff's contact with her violated her warning memo, plaintiff presented no evidence that any similarly-situated men were disciplined for failure to report unwanted contact.
We next address plaintiff's contention that the court erred in its evaluation of his Pierce claim for wrongful termination. Plaintiff argues that there was a genuine issue of material fact as to whether his termination violated "three clear mandates of public policy — the prevention of discrimination in employment based on false charges of misconduct, the prevention of discrimination in employment decisions based on gender, and the guarantee of fair, reasonable treatment concerning the deprivation of due process."
In Pierce, the Supreme Court held "that an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy." Pierce, supra, 84 N.J. at 72. "The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions." Ibid. "A salutary limiting principle is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 188 (1998). The public policy must be "clearly identified and firmly grounded." Macdougall v. Weichert, 144 N.J. 380, 391 (1996). "A vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate." Id. at 392. "Unless an employee at-will identifies a clear, specific expression of public policy, that employee may be discharged with or without cause." Hampton v. Armand Corp., 364 N.J. Super. 194, 199 (App. Div. 2003).
Where a plaintiff seeks redress under both the LAD and Pierce, the latter claim is barred unless it "seek[s] to vindicate interests independent of those protected by the LAD." Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 90 (App. Div. 2001); see also A.D.P. v. ExxonMobil Research & Eng'g Co., 428 N.J. Super. 518, 545 (App. Div. 2012); Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 492 (App. Div.) ("[S]upplementary common law causes of action may not go to the jury when a statutory remedy under the LAD exists."), certif. denied, 136 N.J. 298 (1994).
Applying these standards, we conclude plaintiff's Pierce claim was without any merit. Plaintiff failed to produce any evidence that supported this claim, and, significantly, he failed to "identif[y] a clear, specific expression of public policy" in favor of preventing discrimination based on false charges of misconduct. See Hampton, supra, 364 N.J. Super. at 199. Also, plaintiff's admission to violating the terms of his warning memo belied any claim that the allegations of misconduct were false. In addition, plaintiff's Pierce claim that his termination violated public policy was barred by virtue of his failure to establish his LAD claim. See A.D.P., supra, 428 N.J. Super. at 545; Bosshard, supra, 345 N.J. Super. at 90; Catalane, supra, 271 N.J. Super. at 492.
Finally, plaintiff argues that his termination violated "the guarantee of fair, reasonable treatment concerning the deprivation of due process." Plaintiff was, however, an at-will employee of a private company, and his employment could be terminated for "good reason, bad reason, or no reason at all." Mita v. Chubb Comput. Servs., Inc., 337 N.J. Super. 517, 525 (App. Div. 2001). "Unless an employee at-will identifies a clear, specific expression of public policy, that employee may be discharged with or without cause." Hampton, supra, 364 N.J. Super. at 199 (citing Pierce, supra, 84 N.J. at 72). Plaintiff does not cite to any authority to establish an at-will employee's entitlement to due process before being terminated. In any event, defendant provided plaintiff with due process by conducting an investigation in accordance with its policies and providing plaintiff with an opportunity to present his version of the events leading to his termination.
We also conclude plaintiff's fraudulent concealment argument is equally without any support. Plaintiff contends the court erred in granting defendant summary judgment on his claim of fraudulent concealment of evidence, arguing that defendant's employees' deposition testimony created a genuine issue of material fact as to whether defendant fraudulently concealed documents arising from the two investigations. In support of his argument, plaintiff primarily relies upon Canori's deposition testimony that "any documents relating to interviews with witnesses," including notes, were stored with employee relations, and his later inconsistent statement that he "had no notes" because he would not take notes during interviews, as the other employee relations employees would. Plaintiff also relied upon Reed's testimony that she emailed Mara Rinannder, defendant's Director of Employee Relations, who supervised Boyd and Reed and communicated with them regarding ongoing investigations regarding the investigations. However, defendant did not produce any notes taken by Rinannder or emails exchanged with her.
We disagree with plaintiff that the cited testimony established a genuine issue as to any material fact. To establish a claim for fraudulent concealment of evidence, a plaintiff must prove:
(1) That defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation;
(2) That the evidence was material to the litigation;
(3) That plaintiff could not reasonably have obtained access to the evidence from another source;
(4) That defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation;
(5) That plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.
[Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 118 (2008).]
Here, defendant's claim for fraudulent concealment rests upon the arguable inconsistency in Canori's testimony regarding interview notes and the testimony that Reed and Boyd would communicate with Rinannder regarding ongoing HR investigations. Even if one were to infer from these references that Canori had taken notes during his interviews of plaintiff and that Rinannder had emailed with her subordinates regarding the investigations into plaintiff's conduct, there is no evidence to support a finding that defendant intentionally withheld or destroyed them to disrupt the litigation. Moreover, as plaintiff was terminated because he admittedly violated the terms of his warning memo, and thereby the workplace harassment policy, there is nothing in the record to suggest he was harmed in the pursuit of his claims by the absence of any such documents.
Next, we address plaintiff's contention that the court erred in awarding defendant attorneys' fees and costs related to his LAD claim, arguing defendant failed to establish plaintiff's bad faith. In awarding defendant attorneys' fees, the court recognized that "a grant of summary judgment without more does not support a finding of bad faith by the losing party." The court nevertheless found plaintiff acted in bad faith based, in part, upon the complete absence of any evidence that defendant discriminated against men in general, or plaintiff specifically. The court also cited to the undisputed fact that plaintiff continued to pursue R.A. as described in his own journal entries, even though he knew it violated the warning memo and could result in termination. The court also noted that plaintiff's brief in opposition to defendant's motion included "merely a single page in support of his LAD claim, consisting of a run-on sentence, devoid of any citations to the record evidence, and unencumbered by case citation establishing any of the elements of such an LAD claim," which, in light of the remaining circumstances, could "lead the Court to no other conclusion than [p]laintiff was acting with a reckless disregard or purposeful obliviousness to the facts."
Plaintiff argues the court incorrectly relied upon its finding that plaintiff failed to establish a prima facie case of discrimination or to present arguments in opposition to defendant's motion for summary judgment. In support of his claim that he acted with good faith, plaintiff relies upon the evidence supporting his LAD claim and argues the court "miscalculated the authoritative sweep of Michael v. Robert Wood Johnson Univ. Hosp., 398 N.J. Super. 159 (App. Div.[), certif. denied, 195 N.J. 420 (2008)]." We find no merit to these arguments.
As the award of attorneys' fees under the LAD is a matter within the trial court's discretion, "an appellate court should disturb the fee 'only on the rarest occasions, and then only because of a clear abuse of discretion.'" Saffos v. Avaya Inc., 419 N.J. Super. 244, 271 (App. Div. 2011) (citation omitted). "A trial court decision will constitute an abuse of discretion where 'the decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (quoting United States v. Scurry, 193 N.J. 492, 504 (2008)) (alteration in original).
The LAD permits a court to award reasonable attorneys' fees to a prevailing defendant provided "there is a determination that the complainant brought the charge in bad faith." N.J.S.A. 10:5-27.1. Neither the statute nor the Supreme Court has expressly defined what constitutes "bad faith." We previously "equated bad faith with 'a reckless disregard or purposeful obliviousness of the known facts.'" Michael, supra, 398 N.J. Super. at 165. While "bad faith" does not require "purposeful wrongdoing" on the part of the plaintiff in filing his claim, and the inability "to marshal sufficient proof to proceed to trial does not lead inexorably to a finding of bad faith," see id. at 166, filing and pursuing a claim "without basis in law or in fact," can justify an award of attorneys' fees under the LAD. See Best v. C&M Door Controls, Inc., 200 N.J. 348, 358 n.3. (2009) (likening the LAD fee claim to fee awards under the frivolous claim provision of the Conscientious Employee Protection Act, N.J.S.A. 34:19-6, which requires a determination that the action was filed "without basis in law or in fact").
We discern no abuse of the court's discretion in awarding fees to defendant as to plaintiff's LAD claim based on its finding that plaintiff acted with "a reckless disregard or purposeful obliviousness of the known facts." As the court correctly found, there were no facts to support plaintiff filing a claim of reverse discrimination as the undisputed evidence established plaintiff's termination was due solely to his refusal to honor R.A.'s request that he stay away from her, and failing to comply with his agreement with defendant to have no contact with R.A. through the company's resources or otherwise.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION