Opinion
DOCKET NO. A-1646-13T3
03-02-2015
RICHARD J. SMITH, Plaintiff-Appellant, v. HUTCHINSON PLUMBING HEATING COOLING, Defendant-Respondent, and FRED HUTCHINSON, EDWARD HUTCHINSON, WILLIAM HUTCHINSON, ROBERT HUTCHINSON, MICHAEL SHILES, CAREY HERRMAN, FRED MATHEWSON and MARCUS BRATTON, Defendants.
Robert J. Hagerty argued the cause for appellant (Hagerty Law P.C., attorneys; Mr. Hagerty, of counsel and on the brief). Richard J. DeFortuna argued the cause for respondents (Paisner-Litvin, LLP, attorneys; Mr. DeFortuna and Donna M. Candelora, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0992-12. Robert J. Hagerty argued the cause for appellant (Hagerty Law P.C., attorneys; Mr. Hagerty, of counsel and on the brief). Richard J. DeFortuna argued the cause for respondents (Paisner-Litvin, LLP, attorneys; Mr. DeFortuna and Donna M. Candelora, of counsel and on the brief). PER CURIAM
Plaintiff Richard Smith appeals from the entry of summary judgment dismissing his complaint against defendant Hutchinson Plumbing Heating Cooling, to compel an accounting and for violation of the Wage Payment Law (WPL), N.J.S.A. 34:11-4.1 to -4.14, breach of contract, quantum meruit, unjust enrichment, breach of the implied covenant of good faith and fair dealing, intentional misrepresentation, negligent misrepresentation, hostile environment and retaliation for complaints of religious discrimination under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, civil conspiracy, violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, fraudulent concealment of evidence and negligent destruction of evidence. For the reasons that follow, we affirm the dismissal of all counts with the exception of plaintiff's claims that he was subjected to a hostile work environment and retaliatory discharge.
Plaintiff consented to the voluntary dismissal of all claims against the individual defendants in the trial court. As the count for civil conspiracy was pled only against these individuals, it was likewise dismissed prior to summary judgment.
The essential facts are largely undisputed, with certain notable exceptions, which we relate in the light most favorable to plaintiff. Defendant Hutchinson bills itself as the largest HVAC company in southern New Jersey, providing a full range of plumbing, heating and air conditioning services. From October 2009 until his discharge in May 2012, plaintiff worked as a commissioned salesman in Hutchinson's residential services department. He was paid entirely on commission, receiving only a weekly draw against future commissions.
In February 2010, four months after assuming his sales position, plaintiff came to believe he was not being paid his promised commission rate. Plaintiff complained that every time he questioned his commission, which was often, "Fred Hutchinson gave [him] some incomprehensible answer that made no sense at all."
The parties' relations became increasingly strained around the issue of plaintiff's commissions over the following two years. Plaintiff felt as if he could never get a straight answer as to how defendant calculated commissions. He also believed defendant changed the manner in which commissions were calculated. Defendant insisted it had not done so. Defendant's management team believed they spent a great deal of time resolving the issues to plaintiff's satisfaction, only to have him renew his complaints within weeks or months.
In September 2011, Carey Herrman, Hutchinson's general manager, sent an email to plaintiff confirming that management had reviewed with him his 2009 sales and provided him with pay summaries showing he was paid in full for 2009 in 2010, stating "[y]ou have agreed to this." The email continued:
We will review all jobs sold by you in 2010. We will supply you with a list of the total sold jobs and percentage of commission which you need to verify your total number of jobs sold and value. We will verify your pay for 2010.Plaintiff replied stating:
We will move forward with the 2011 process and review of all jobs sold on a monthly basis.
As you well know, some of the funds for 2010 went toward [the] 2011 draw. We will verify with you so that all parties are satisfied.
After all verifications we will no longer talk about 2009 or 2010 and will move forward with the verification process on a monthly basis.
Please reply to this email and verify that you understand and agree.
I agree with all statements and look forward to settling my commissions statement asap. We believe there is 39k that is due and would like it @5k a week for the next 8 weeks to soften the tax blow.
In late 2011, plaintiff claims that his sales manager, Marcus Bratton, and Herrman told him to stop talking with the other salespeople about commissions or he would be fired. Plaintiff also claims his sales leads from the company dried up around the same time, and that he went from number one in sales to last place.
In December, plaintiff attended a meeting with Fred Hutchinson, Herrman, Bratton and Fred Mathewson, Huchinson's chief financial officer, to once more discuss plaintiff's commissions. The meeting got heated when plaintiff again raised the issue of unpaid 2009 commission. He eventually walked out and shortly thereafter hired a lawyer.
Plaintiff's lawyer wrote to defendant in January 2012 demanding documents relating to plaintiff's commission calculations and payments. Enclosed in the letter was a draft complaint asserting claims under the WPL and for breach of contract. The letter also addressed "a number of questionable business practices" at the company. Included among those claims was that "Mark Bratton put his pocket knife up against [plaintiff's] testicles" and referred to "you Jews" when addressing him.
After obtaining the details of plaintiff's allegations against Bratton from plaintiff's counsel, the company hired an outside investigator to review his claims. Plaintiff claimed in October 2011, at a poker game at Fred Hutchinson's home, Bratton said "isn't it just like the Jew not to put the money up" when plaintiff failed to "ante up" prior to a hand. The other players, almost all of whom worked for the company, laughed. At Christmastime that year, plaintiff walked into the breakroom where other employees were discussing raffling off a Christmas tree when Bratton yelled out "yeah, you Jews don't have Christmas trees do you." Plaintiff reported the other employees present all laughed.
Plaintiff also claimed that after he walked out of the contentious December meeting regarding his commissions, Bratton followed him into Herrman's office. While the two were alone, plaintiff claims Bratton took a penknife from his pocket and pressed it to plaintiff's testicles saying, "This is what we do to Jews who don't cooperate." Plaintiff claims he reported the incident to Herrman the following day. Herrman told the investigator that plaintiff "made him aware of it," and that he went to Fred Hutchinson with plaintiff's claim. The investigator was unable to substantiate any of the charges, although she noted one of the other card players recalled Bratton making the statement about Jews not putting up the money when plaintiff was slow to ante up on a hand.
Defendant provided plaintiff's counsel with sales and commission documents in response to her demand, and the parties met in an effort to resolve their pay dispute. They could not bridge their differences, however, and plaintiff filed his complaint for violations of the WPL and breach of contract in February 2012. Relations thereafter continued to deteriorate between the parties. Plaintiff missed work meetings because he was meeting with his attorney during working hours, and management complained he was also missing appointments with customers and failing to complete necessary paperwork correctly or in a timely fashion.
Plaintiff complained that he "was expected to attend meetings that were a waste of time" and that defendant was retaliating against him for his "complaints about Bratton's anti-Semitic behavior and [his] complaints about not being paid properly." Plaintiff complained to Mathewson and Herrman in April that at a sales meeting on February 24, Fred Hutchinson looked in plaintiff's direction and "suddenly and unexpectedly stopped what he was saying, said 'Jew Jew' and winked at Bratton," who, unbeknownst to plaintiff, was sitting behind him.
Eventually, plaintiff refused to attend commission meetings with the sales staff concluding that "Hutchinson management was never going to give [him] an understandable explanation." He also refused to take any more sales calls in Pennsylvania and then refused to take any sales calls at all until he received commissions he believed were owed. Plaintiff claimed "that after two years of being 'jerked around' by [defendant, he] was fed up and declined to attend meetings that were a waste of time and declined to make calls in Pennsylvania, as he had not been hired to work in Pennsylvania." After several written warnings, Fred Hutchinson terminated plaintiff's employment in May 2012 based on information regarding plaintiff's performance provided by Mathewson, Bratton and Herrman.
Following his firing, plaintiff amended his complaint to add claims of hostile work environment. He subsequently amended it again to add claims of retaliatory discharge under the LAD and CEPA. In that second amended complaint, plaintiff alleged defendant cheated customers out of a portion of a rebate offered by an equipment manufacturer on specified items by increasing the price of the item to cover defendant's participation share and signed customers' names without their permission to ballots submitted to the Courier Post newspaper's "Best of South Jersey" contest in violation of the contest's rules. Plaintiff asserted he complained about both of these practices to Herrman. Plaintiff included in his complaint a count for negligent spoliation of evidence based on defendant's failure to retain copies of the ballots it submitted to the newspaper.
After hearing argument, the trial court granted defendant's motion for summary judgment and dismissed plaintiff's claims in their entirety. The court found that despite extensive discovery, plaintiff had failed to present any evidence that defendant did not maintain proper records, had not paid plaintiff all wages due and owing, or had ever changed the method of calculating plaintiff's commission. The court found that plaintiff had no proof of any intentional or negligent misrepresentation and no evidence of any fraud.
As to plaintiff's wrongful discharge claims, the court found that following the filing of his complaint, plaintiff refused to attend meetings or take sales calls in Pennsylvania. The court rejected plaintiff's claims that he was excused from attending scheduled work meetings because he was engaged in the protected activity of meeting with his lawyer. Citing plaintiff's admitted conduct of refusing to attend meetings called by his employer he considered a waste of time and refusing to take sales calls in Pennsylvania, despite it being within the territory assigned in his employment agreement, the court dismissed plaintiff's claims for wrongful discharge.
The trial court focused the greater part of its opinion, as the parties had their arguments, on the hostile environment claim. The court found plaintiff never reported Bratton's "alleged hostile remark" following the December 2011 commission meeting and that the outside investigator was unable to substantiate plaintiff's claim. Finding that defendant has a "comprehensive anti-harassment program" which plaintiff failed to utilize, the court concluded that single incident was not sufficient to create a hostile environment under Taylor v. Metzger, 152 N.J. 490 (1998).
We review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).
We agree with the trial court that all of plaintiff's claims relating to the payment of his commissions were properly dismissed on summary judgment. Plaintiff acknowledges that defendant produced over 300,000 documents in discovery. In addition to every estimating spreadsheet he used during his employment, plaintiff also inspected every job file for all sales he made from 2009 through 2012 and "imaged" the company laptop he used during his employment. Although plaintiff continues to maintain unspecified documents have not been produced, that defendant changed its method of calculating his commission and that he has not been paid all that is due, he produced no evidence for his claims, notwithstanding this extensive discovery. The complete absence of any support in this record for plaintiff's method of calculating his commissions is fatal to his claims. The trial court appropriately entered summary judgment on all claims relating to the calculation and payment of plaintiff's commission.
We reject plaintiff's contention that a document which states "This is how commissions are calculated (As of 2011)" constitutes proof that defendant changed its commission calculation on the theory that "[i]f there is a methodology 'as of 2011,' then there must have been a different one in 2010." In opposing a motion for summary judgment, plaintiff is entitled only to all "legitimate" inferences that can be drawn in his favor. See R. 4:46-2(c).
We do not agree, however, that plaintiff's hostile environment claim could be resolved on summary judgment. To establish a cause of action under the LAD based on a hostile work environment, plaintiff must prove that the complained-of conduct: (1) would not have occurred but for the employee's protected status and was (2) severe or pervasive enough to make a (3) reasonable person of plaintiff's protected status believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive. Cutler v. Dorn, 196 N.J. 419, 430 (2008) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)).
In determining whether conduct is sufficiently severe or pervasive to constitute an actionable hostile environment, the focus is not on plaintiff's subjective response to the alleged hostile acts but on the acts themselves. Id. at 431. We are also not to look at each complained-of act in isolation. Green v. Jersey City Bd. of Educ, 177 N.J. 434, 447 (2003). Instead,
we look to "all the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."
[Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 19-20 (2002) (quoting Nat'l Railroad Passenger Corp., 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106, 124 (2002)).]
Plaintiff alleged that his supervisor, sales manager Bratton, created an actionable hostile environment based on plaintiff's Jewish faith and ancestry. Thus the appropriate test for measuring his claim is whether "a reasonable person of plaintiff's religion or ancestry would consider the workplace acts and comments made to, or in the presence of, plaintiff to be sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment." Cutler, supra, 196 N.J. at 430 (citing El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005)).
For reasons not altogether clear to us, the trial court looked only at the penknife incident in evaluating plaintiff's claim, considering whether that incident, standing alone, was sufficiently severe to create a hostile environment under Taylor. Although that was the only physical act plaintiff complained of, plaintiff identified two other specific remarks by Bratton which he characterized as anti-Semitic. As to one of those remarks, the one at the card game, plaintiff's account was corroborated by one of the other players. Although defendant's outside investigator could not substantiate plaintiff's claims, her notes make clear that one of the participants heard Bratton make the remark alleged, and the player further maintained "that everyone else who was there [Fred Hutchinson, among others] should have said the same thing," as all laughed at the comment.
We surmise the judge concluded the other two remarks allegedly made by Bratton were not sufficiently severe or pervasive to alter plaintiff's conditions of employment. Even if correct, which we assume without deciding, the remarks do not "drop out" of the analysis.
Moreover, we think there is no doubt that a rational factfinder could reasonably find the penknife incident sufficiently severe to make a reasonable person of Jewish faith or ancestry believe the conditions of his employment had been altered and the workplace rendered a hostile one. See Cutler, supra, 196 N.J. at 430; Taylor, supra, 152 N.J. at 500-01. The words, which specifically referenced plaintiff's faith or ancestry, were accompanied by a physically threatening and humiliating act. And they were spoken by plaintiff's supervisor. Although it is the rare case in which a single remark is found sufficient to create a hostile environment, this case was not limited to words but involved a physical threat - with a knife. The incident also followed two other remarks in the preceding months mocking defendant's faith or ancestry in the presence of other employees.
We further do not conclude that defendant's anti-discrimination policy, relied upon by the trial court, entitled defendant to summary judgment on this record. First, an anti-discrimination policy will not shield an employer from liability for discriminatory acts of a supervisor acting within the scope of his employment. See Lehmann, supra, 132 N.J. at 619. The Court in Lehmann made unmistakably clear "that under [Restatement (Second) of Agency] § 219(1) an employer whose supervisory employee is acting within the scope of his or her employment will be liable for the supervisor's conduct in creating a hostile work environment." Ibid.
Restatement (Second) of Agency (1958) has been superseded by Restatement (Third) of Agency (2006). Section 219 of the Restatement (Second) of Agency, along with §§ 220, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237 and 267 have been subsumed and consolidated in Restatement (Third) of Agency § 7.07 (2006). Reporter's Notes to § 7.07.
The scenario presented on the motion was not the more common example of sexual harassment pursued for the harasser's own ends. See id. at 623-24. Accepting plaintiff's version of the encounter as true, as we must for purposes of the motion, Brill, supra, 142 N.J. at 535-36, the incident occurred after a heated meeting he had with Fred Hutchinson, Mathewson, Herrman and Bratton over his commissions for 2009 and 2010. Plaintiff claimed he left the meeting saying he would meet Herrman in his office to "get clarification" about an issue over the books for those years. When plaintiff walked to Herrman's office, Bratton followed him there and threatened him with a penknife against his testicles saying, "This is what we do to Jews who don't cooperate."
In our view, there can be little doubt that Bratton was acting within the scope of his employment in attempting to dissuade plaintiff from pursuing his claims for unpaid commissions. See Burlington Industries v. Ellerth, 524 U.S. 742, 756, 118 S. Ct. 2257, 2266, 141 L. Ed. 2d 633, 649 (1998) ("While early decisions absolved employers of liability for the intentional torts of their employees, the law now imposes liability where the employee's 'purpose, however misguided, is wholly or in part to further the master's business.'") (quoting W. Page Keeton et al., Prosser and Keeton on Law of Torts § 70, at 505 (5th ed. 1984)). Bratton was Hutchinson's sales manager and supervisor of its commissioned sales staff, including plaintiff, and the act occurred in defendant's offices immediately after a contentious meeting regarding plaintiff's complaints about unpaid commissions. See Restatement (Third) of Agency, § 7.07 (2006). Nor is the fact that Bratton wielded a penknife in the encounter likely sufficient to take it outside the scope of his employment. See id. at § 7.07, comment b ("[A]n employee's tortious conduct is outside the scope of employment when the employee is engaged in an independent course of conduct not intended to further any purpose of the employer. An independent course of conduct represents a departure from, not an escalation of, conduct involved in performing assigned work.").
Although whether Bratton was acting within the scope of his employment, thus making Hutchinson vicariously liable for his acts, likely could be resolved as a matter of law, see Luchejko v. City of Hoboken, 207 N.J. 191, 211 (2011), we do not do so on this record. The issue has not been briefed, or even addressed, by the parties. It is thus better resolved on remand. See Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc., 185 N.J. 40, 57 (2005) (declining to find point not argued by any party dispositive of issue on appeal).
Second, even if Bratton is considered to have acted outside the scope of his employment, factual disputes over plaintiff's utilization of defendant's anti-discrimination policy and its effectiveness preclude summary judgment to defendant on this record. In evaluating defendant's vicarious liability for Bratton's conduct under Restatement (Second) of Agency § 219(2) (now Restatement (Third) of Agency § 7.07(2)), that is for any conduct considered to have been outside the scope of his employment, the court must consider whether defendant's anti-discrimination policy will provide defendant a defense to liability. The Supreme Court recently reiterated that an employer's implementation and enforcement of an effective anti-harassment policy is a critical factor in assessing a plaintiff's negligence claim under Restatement (Second) of Agency § 219(2)(b), and adopted the Ellerth/Faragher standard for claims under Restatement [Second of Agency] § 219(2)(d), thus allowing employers an affirmative defense to supervisory hostile environment claims based on the employer's creation and enforcement of an effective policy against sexual harassment, so long as the employee suffered no tangible employment action. Aguas v. State of New Jersey, ___ N.J. ___, ___ (2015) (slip op. at 11, 47-48).
Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. Ed. 2d at 655; Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S. Ct. 2275, 2292-93, 141 L. Ed. 2d 662, 689 (1998).
Defendant contended it was entitled to summary judgment on plaintiff's hostile environment claim because plaintiff did not utilize the company's anti-discrimination policy by promptly reporting the penknife incident. Plaintiff disputes that. He contends that he complained to Herrman about the incident the next day, and the investigator's notes appear to corroborate his claim. This dispute of fact was sufficient to deny defendant summary judgment, and the court erred in overlooking it in accepting defendant's contention that plaintiff never reported Bratton's conduct.
But the trial court also erred in failing to consider plaintiff's proofs that defendant's anti-discrimination policy was ineffective because it was incomplete and the company had never conducted any training on workplace discrimination or harassment. Aguas, supra, ___ N.J. ___ (slip op. at 50) (reiterating that "an employer that implements an ineffective anti-harassment policy, or fails to enforce its policy, may not assert the affirmative defense"). In Gaines v. Bellino, 173 N.J. 301, 320 (2002), the Court held squarely that although a defendant can assert the existence of an effective anti-discrimination policy as an affirmative defense to vicarious liability, "material issues of disputed fact in the context of a motion record can deny a defendant summary dismissal based on that defense."
Here, defendant presented the deposition testimony of defendant's human resource manager that the company never conducted any training on its anti-discrimination policy. Accordingly, defendant's proof of lack of training on the policy put its effectiveness in issue and precluded summary judgment to defendant on the basis of the affirmative defense. There was thus no basis for entry of summary judgment to defendant on plaintiff's hostile environment claim.
Plaintiff may also be entitled to argue that the defense is not available to defendant on the basis of his contention that the hostile environment resulted in his termination, an obvious adverse employment action. See Aguas, supra, ___ N.J. ___ (slip op. at 47-48) (holding affirmative defense based on effective anti-discrimination policy unavailable when supervisor's harassment culminates in tangible adverse employment action).
We also disagree that all of plaintiff's claims for retaliatory discharge were properly dismissed on summary judgment. In order to prove a retaliatory discharge claim under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973), a plaintiff's prima facie case consists of demonstrating: (1) that he "'engaged in protected activity'"; (2) the activity was "'known to the [employer]'"; (3) he suffered "'an adverse employment decision'"; and (4) there existed "a causal link between the protected activity and the adverse employment action." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 547 (2013) (quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)).
We agree with the trial court that plaintiff failed to muster the proofs required to establish a prima facie case that he was fired in retaliation for his alleged complaints about the manufacturer's rebate program or the "Best of South Jersey" promotion. Although plaintiff did not plead his CEPA violation with any specificity, he has not identified either "a law, or a rule or regulation promulgated pursuant to law[,]" N.J.S.A. 34:19-3a, 3c(1), or "a clear mandate of public policy concerning the public health, safety or welfare," N.J.S.A. 34:19-3c(3), which the employer has allegedly violated. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187-88 (1998). Assuming he could do so, he adduced no proofs of any causal link between his complaints and his termination. See Young v. Hobart W. Grp., 385 N.J. Super. 448, 466-67 (App. Div. 2005). Even were plaintiff alleging fraud under N.J.S.A. 34:19-3(a)(2), -3(c)(2), which does not require him to make such a showing, Battaglia, supra, 214 N.J. at 557-58, the failure to adduce evidence linking his complaints to his termination entitled defendant to summary judgment on the claim.
We also agree plaintiff's claim for "negligent destruction of evidence" in connection with these retaliation claims was properly dismissed on summary judgment because plaintiff's counsel dismissed the claim on the record. New Jersey courts do not recognize negligent spoliation claims between parties to a lawsuit. Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 123 n.6 (2008).
The same is not true, however, of plaintiff's claim of retaliation under the LAD. Plaintiff asserts, alternatively, that he was fired in retaliation for his complaints about Bratton's anti-Semitic comments. Unlike with regard to his other retaliation claims, however, plaintiff presented proof of a causal connection between his complaints about Bratton's anti-Semitic conduct and his discharge. See Battaglia, supra, 214 N.J. at 547. First, Fred Hutchinson testified at deposition that he determined to fire plaintiff based in part on information he received from Bratton. Bratton's involvement in plaintiff's termination is sufficient to establish a causal link between plaintiff's complaints about Bratton and his termination. See id. at 559; Grasso v. W. N.Y. Bd. of Educ., 364 N.J. Super. 109, 119-20 (App. Div. 2003). But plaintiff also alleged the actual decision maker, Fred Hutchinson, after plaintiff's complaints about Bratton, interrupted a sales meeting to look at plaintiff and say, "Jew Jew" while winking at Bratton. Accordingly, we have no hesitation in concluding that plaintiff made out a prima facie case of retaliatory discharge under the LAD.
The trial court did not address the effect of CEPA's statutory election of remedies provision, N.J.S.A. 34:19-8, in considering the motion. Although we reject defendant's assertion that plaintiff has "waived" his LAD claims by asserting a cause of action under CEPA, the trial court on remand must consider whether plaintiff's claim of retaliation based on his complaints of discrimination on the basis of his faith or ancestry must be analyzed as a form of protected activity under CEPA in order to give effect to CEPA's election of remedies provision. See Battaglia, supra, 214 N.J. at 556 n.9.
Plaintiff's claim of retaliation is not dependent on the success of his claim for hostile environment. See Battaglia, supra, 214 N.J. at 547-49 (rejecting this court's view that unless the plaintiff proved an act of discrimination or a hostile work environment, he cannot recover for retaliation).
The parties have not raised, and we have not considered, whether this conduct would satisfy the Price Waterhouse standard of direct evidence sufficient to shift the burden of persuasion to the employer under a mixed-motive analysis. See McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 527 (2003) (explaining mixed-motive analysis under Price Waterhouse v. Hopkins, 4 90 U.S. 228, 276, 109 S. Ct. 1775, 1796-97, 104 L. Ed. 2d 268, 304-05 (1994) (O'Connor, J., concurring)).
Although defendant claims that plaintiff filed "baseless claims of harassment and retaliation" only after "it became clear that he could not legally prevail" on his commission claims, plaintiff has made a sufficient showing that his original complaint was both reasonable and made in good faith to survive summary judgment. See Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 373 (2007).
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The burden would then shift to the employer to articulate a legitimate, non-retaliatory reason for the discharge. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005). If the employer does so, thus overcoming the presumption of discrimination, the burden shifts back to plaintiff to prove that the employer's proffered reason for the termination was merely a pretext for discrimination. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999). Plaintiff carries that burden by showing that a discriminatory reason more likely motivated the employer than the reason proffered. Ibid. Proof that the employer's reason is not worthy of credence is not enough. Zive, supra, 182 N.J. at 449. The plaintiff must prove that the "real reason" for the employer's action was one that violated the LAD. Ibid. Put another way, "[a]lthough the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination." Sisler, supra, 157 N.J. at 211.
Defendant's non-retaliatory reason for the discharge was that plaintiff refused sales calls in Pennsylvania, refused to attend meetings and scheduled appointments with customers, failed to correctly complete and submit necessary paperwork and generally refused managerial direction. There are certainly facts in the record to allow a rational jury to agree that defendant fired plaintiff for those reasons and not in retaliation for his complaints about Bratton.
But plaintiff can point to other facts suggesting defendant's reasons were a pretext for retaliation. In addition to the "Jew Jew" comment plaintiff alleges Fred Hutchinson made, plaintiff also points to proof that other sales people missed meetings and refused sales calls in Pennsylvania and were not terminated. Although defendant claims that "this matter is simply one of pay" and plaintiff's LAD and CEPA claims added only as an afterthought, we are satisfied that plaintiff mustered sufficient facts on the motion to allow a rational jury to reasonably conclude that defendant's claims about plaintiff's performance were a pretext, and that the real reason plaintiff was fired was because he complained about Bratton's anti-Semitic conduct. Because plaintiff adduced sufficient facts on the motion to put the issue of pretext before the jury, his claim for retaliatory discharge should not have been decided on summary judgment.
In sum, we affirm the grant of summary judgment to defendant dismissing all of plaintiff's claims relating to the calculation and payment of plaintiff's commissions. Specifically, we affirm the dismissal of plaintiff's claims to compel an accounting, for violation of the WPL, breach of contract, quantum meruit, unjust enrichment, breach of the implied covenant of good faith and fair dealing, intentional misrepresentation, negligent misrepresentation, fraudulent concealment of evidence and negligent destruction of evidence. We also affirm the grant of summary judgment to defendant on plaintiff's CEPA claims arising out of the manufacturer's rebate program and the "Best of South Jersey" promotion. We reverse the grant of summary judgment to defendant on plaintiff's claim for hostile environment on the basis of his Jewish faith and ancestry and for retaliatory discharge based on his complaints about Bratton's anti-Semitic conduct.
Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION