Opinion
No. A-4938-04T3
Submitted February 14, 2006
Decided March 3, 2006
On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-9150-03.
Before Judges Cuff, Lintner and Holston, Jr.
Herbert J. Tan, attorney for appellant.
Reed Smith, attorneys for respondent (Robert H. Bernstein, of counsel and on the brief; Stephen D. Bird and David M. Katz, on the brief).
Plaintiff, Melissa Mersmann, appeals from a summary judgment order dismissing her complaint alleging that defendant, Continental Airlines, Inc. and its supervisory and managerial employees, David Lucas and Christine Scott, terminated her employment on account of her age and gender, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. The motion judge found that plaintiff failed to produce evidence to meet the fourth prong in the test enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973). We agree, for slightly different reasons than those expressed by the judge, that plaintiff's proofs fail to establish a justiciable issue of discrimination under the LAD and, accordingly, affirm the order dismissing her complaint. See Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162 , 175 (1968) (holding that a judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons).
We refer to Continental Airlines, Inc., David Lucas, and Christine Scott collectively as defendant.
Plaintiff's complaint also alleged breach of contract and negligence. Plaintiff, however, only appeals from the dismissal of her LAD claims.
Because we conclude that plaintiff failed to produce evidence supporting her claim of discrimination under the LAD, we need not address defendant's contention on appeal that plaintiff's complaint was preempted by the Railway Labor Act. 45 U.S.C. §§ 151-188.
Plaintiff was initially hired by defendant as a flight attendant on October 31, 1985. During the term of her employment, she received promotions and various commendations. She remained employed as a flight attendant until defendant terminated her on March 5, 2002. As a flight attendant, the terms and conditions of plaintiff's employment were governed by the Collective Bargaining Agreement (CBA) between defendant and the International Association of Machinists and Aerospace Workers.
On February 17, 2002, plaintiff was working Flight #1967 from Aruba to Newark. Plaintiff claimed that she was accused of dereliction of her duties on Flight #1967 by attendants younger and less senior working the flight. Following an investigation into plaintiff's conduct during the flight, however, defendant concluded that plaintiff, as a result of being intoxicated, engaged in such severe misconduct as to warrant termination. Specifically, plaintiff arrived late for the flight, made inappropriate announcements over the flight P.A. system, appeared to be sleeping, was unable to perform her first-class service duties, became physically sick, vomiting on two occasions, and smelled of alcohol, all of which led to her being tested on arrival at Newark, revealing alcohol levels of .061 and .054.
Violating Federal Aviation Administration regulations governing the airline industry, which prohibit airline employees from working in safety-sensitive positions while under the influence of alcohol. Alcohol concentrations of .02 or higher are considered positive for presence of alcohol.14 C.F.R. §§ 121.458, 121 Appendix J; 49 C.F.R. § 40.23.
Responding to the allegation that she was intoxicated, plaintiff prepared a handwritten statement explaining that, although she consumed alcohol on her forty-nine-hour layover in Aruba, she did not have any alcohol within eleven hours of the time she checked in for duty. She believed that her prescription medication was the cause of the positive alcohol test results.
After her termination, plaintiff filed a grievance under the CBA. Plaintiff then appealed the grievance to the Board of Adjustment (BOA) for an arbitration hearing between plaintiff's union and defendant in accordance with the Railway Labor Act (RLA), 45 U.S.C.A. § 184, and the CBA. Three arbitrators were selected, one by each party and a neutral agreed upon by both. At the hearing, plaintiff was represented by counsel and had an opportunity to introduce evidence, call and cross-examine witnesses, and raise defenses. Plaintiff did not assert any claim of gender or age discrimination. Plaintiff conceded that her alcohol test results violated federal regulations, however, argued that under Section 11, Part 5 of the CBA, a positive test was not grounds for termination. Section 11, Part 5 of the CBA, entitled "Consequences of a positive alcohol test," provides in pertinent part:
If a flight attendant's breath alcohol test indicates an alcohol concentration of .04 or greater, s/he shall be required, as a condition of continuing employment, to undergo evaluation . . . and to complete any rehabilitation recommended . . . prior to resuming any flight duties.
In a seventeen-page decision, the BOA denied plaintiff's grievance, finding that defendant had just cause to terminate plaintiff. In reaching its determination, the BOA found that the positive alcohol test, together with "a multitude of other serious misconduct" on the flight, established that plaintiff was "out of control," which is "extremely serious in a service-oriented, safety-sensitive business," and established just cause for the defendant's decision to terminate. Section 20, paragraph B, subparagraph 9 of the CBA provides that decisions of the BOA are final and binding on the parties, thus providing the BOA with the power to prevent the termination.
Plaintiff commenced this litigation by filing her complaint in the Law Division on August 15, 2003. Defendant removed the matter to the United States District Court, District of New Jersey under diversity and federal question jurisdiction on December 16, 2003. On February 6, 2004, defendant moved to dismiss the complaint, asserting in part that plaintiff failed to state a prima facie case of discrimination under the LAD. Plaintiff filed an amended complaint adding Lucas and Scott as defendants, both of whom were alleged to reside in New Jersey, to defeat diversity and moved to remand the matter to state court. On July 30, 2004, a federal judge granted plaintiff's motion for remand. On November 19, 2004, defendant filed its motion to dismiss, which is the subject matter of this appeal. Because defendant's motion to dismiss involved facts outside the pleadings, the motion judge treated it as a motion for summary judgment. R. 4:6-2(e). An order memorializing the judge's decision was filed on February 9, 2005. Plaintiff's motion for reconsideration, apparently filed on March 15, 2005, was denied by order of April 29, 2005. Plaintiff filed her notice of appeal on May 23, 2005.
We do not have a filed copy of plaintiff's motion for reconsideration or an indication when it was served on defendant. The appellate appendix contains only plaintiff's letter in lieu of brief for reconsideration dated March 15, 2005. R. 2:4-3(e) provides that a timely filed and served motion for reconsideration tolls the time for appeal. R. 4:49-2 requires that a motion for reconsideration to amend a judgment be filed within twenty days. Defendant does not raise the timeliness of the appeal or the motion for reconsideration in its appellate brief. We, therefore, choose to decide this appeal on the merits, notwithstanding our concerns regarding the issues of timeliness of plaintiff's motion for reconsideration as it relates to the filing of her notice of appeal.
We begin our analysis by restating the following, well-settled, general principles. N.J.S.A. 10:5-12(a) provides that it is an unlawful employment practice "[f]or an employer, because of the . . . age . . . [or] sex . . . of any individual . . . to discharge . . . such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. . . ." Our Supreme Court has adopted the four-part prima facie test for employment discrimination cases initially set forth in McDonnell Douglas. To establish a prima facie case, the plaintiff must
demonstrate by a preponderance of the evidence that he or she (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained open and the employer continued to seek applications for persons of plaintiff's qualifications.
[Erickson v. Marsh McLennan Co., 117 N.J. 539 , 550 (1990) (quoting Andersen v. Exxon Co., 89 N.J. 483 , 492 (1982)).]
It is only when the plaintiff is able to establish a prima facie case that the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, supra, 411 U.S. at 802,93 S. Ct. at 1824, 36 L. Ed. 2d at 678; Erickson, supra, 117 N.J. at 550 (quoting Andersen, supra, 89 N.J. at 493 ). It is then that the plaintiff must show that the reason advanced by the employer "was not the true reason for the employment decision but was merely a pretext for discrimination." Goodman v. London Metals Exchange, Inc., 86 N.J. 19 , 32 (1981). However, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Ibid.
Summary judgment is appropriate if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In Brill v. Guardian Life Insurance Company of America, 142 N.J. 520 (1995), the Court explained:
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether 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. The "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
[Id. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)) (second alteration in original).]
Relying on Collins v. New York City Transit Authority, 305 F.3d 113 (2d Cir. 2002), the judge found that plaintiff had neither attacked the arbitration proceeding as compromised nor submitted new evidence not before the BOA. He concluded that plaintiff failed to assert any evidence other than mere allegations to rebut defendant's contention that she cannot establish the fourth McDonnell Douglas prong.
On appeal, plaintiff contends that she was able to show a prima facie case pointing to the fact that during her career she received "promotions and/or training as a Flight Service Manager, International Service Manager, and Flight Attendant Recruiter and Uniform Coordinator." She also argues her several commendations such as her Dependability Award and selection for a role in defendant's television commercial established that she met defendant's reasonable expectations but was nevertheless fired. Referring to her affidavit filed in response to defendant's motion where she stated that another attendant (K. Jensen) who "is younger than I am, was terminated along with me but she was subsequently allowed to return to work," plaintiff asserts that she presented sufficient facts to create a factual issue respecting the fourth prong, that a younger person was hired to fill her position. Finally, she argues that because she had never received one single letter or correspondence from defendant regarding her deficiencies she satisfied her burden to show that defendant's reason for terminating her was a pretext.
Our review of the record supports the conclusion that plaintiff did not establish that defendant terminated her as a pretext to discriminate against her based upon her gender or age. Under the framework of the McDonnell Douglas four prong test, modified for age and gender discrimination, plaintiff must establish, (1) plaintiff belongs to a protected class, (2) she was performing a job at the level that met the employer's expectations, (3) she nevertheless was fired, and (4) the employer hired someone else to perform the same work after she was discharged. Bergen Commercial Bank v. Sisler, 307 N.J. Super. 333 , 347 (App.Div. 1998), aff'd, 157 N.J. 188 (1999); see Clowes v. Terminix Int'l Inc., 109 N.J. 575 , 596 (1988). Alternatively, the fourth prong may be shown by proof that the challenged employment decision "took place under circumstances that give rise to an inference of unlawful discrimination." Williams v. Pemberton Twp. Pub. Sch., 323 N.J. Super. 490 , 502 (App.Div. 1999).
The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for denying the plaintiff's termination. If the employer meets this burden of production, the plaintiff then bears the burden of proving that the defendant's articulated reason was merely a pretext for unlawful discrimination. "To prove pretext, a plaintiff may not simply show that the employer's reason was false but must also demonstrate that the employer was motivated by discriminatory intent." Zive v. Stanley Roberts, Inc., 182 N.J. 436 , 449 (2005).
The plaintiff in Collins, supra, 305 F.3d 113 , participated in binding arbitration pursuant to the grievance procedure in a CBA following his termination for punching his supervisor in the face. The arbitration board upheld the termination, finding the plaintiff had physically assaulted his supervisor. Id. at 117. The Second Circuit pointed out that where a plaintiff's termination occurs "based upon substantial evidence, of an undisputedly independent, neutral, and unbiased adjudicator," it is highly probative of the absence of discriminatory intent. Id. at 119. The Circuit Court then concluded that the plaintiff "offered insufficient evidence of causation linking his termination to motives of retaliation or discrimination to overcome the cumulative probative weight of the evidence of a legitimate reason for his discharge and of the final termination decision by the arbitration board." Ibid.
The BOA's decision militates against any contention by plaintiff resting the fourth prong on the proposition that the employment decision took place under circumstances that give rise to an inference of unlawful discrimination. Moreover, plaintiff's failure to provide any factual underpinnings respecting the purported termination and re-hire of K. Jensen to fill her position render her contention that she met the fourth prong somewhat tenuous as conclusory. Notwithstanding this deficiency, we choose to rest our decision on the complete lack of any proof that the reasons for plaintiff's termination were pretextual. Like the facts in Collins, plaintiff did not produce any evidence that defendant was motivated by discriminatory intent, in the face of the highly probative evidence before the BOA and its unbiased decision finding just cause for defendant's termination.
Simply stated, plaintiff's assertion that she had not received any letter concerning her deficiencies utterly fails to meet her burden to produce evidence that defendant's articulated reason, plaintiff's serious misconduct on Flight #1967, was merely a pretext for unlawful discrimination. We are satisfied, based on our review of the entire record, that the evidence presented was not sufficient, when viewed in a light most favorable to plaintiff, to permit a rational factfinder to resolve the issue of pretext in her favor. Brill, supra, 142 N.J. at 540 . In our view, the proofs presented were so one-sided that defendant must prevail as a matter of law. Ibid.; see also R. 4:46-2(c).
Affirmed.