NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1646-13T3

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.

____________________________________

Argued February 3, 2015 Decided

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;

March 2, 2015

A-1646-13T3 2

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,1

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.

1

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.

A-1646-13T3 3

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

A-1646-13T3 4

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.

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.

Plaintiff replied stating:

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.

A-1646-13T3 5

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

A-1646-13T3 6

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.

A-1646-13T3 7

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

A-1646-13T3 8

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

A-1646-13T3 9

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.

A-1646-13T3 10

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

A-1646-13T3 11

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.2

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 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

2

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).

A-1646-13T3 12

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

A-1646-13T3 13

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.3

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.

3

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.

A-1646-13T3 14

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

A-1646-13T3 15

[Restatement (Second) of Agency] 219(1)[4]

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.

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

4

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.

A-1646-13T3 16

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.5

See id. at 7.07, comment b

("[A]n employee's tortious conduct is outside the scope of

5

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).

A-1646-13T3 17

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.").

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 6 standard

for claims under Restatement [Second of Agency] 219(2)(d),

6

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).

A-1646-13T3 18

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).

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

A-1646-13T3 19

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.7

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.

7

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).

A-1646-13T3 20

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.

A-1646-13T3 21

448, 466-67 (App. Div. 2005).8

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.

The same is not true, however, of plaintiff's claim of

retaliation under the LAD.9

Plaintiff asserts, alternatively,

that he was fired in retaliation for his complaints about

Bratton's anti-Semitic comments.10

Unlike with regard to his

8

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).

9

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.

10

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).

A-1646-13T3 22

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.11

Accordingly, we have no hesitation in concluding that

plaintiff made out a prima facie case of retaliatory discharge

under the LAD.12

11

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, 490

U.S. 228, 276, 109 S. Ct. 1775, 1796-97, 104 L. Ed. 2d 268,

304-05 (1994) (O'Connor, J., concurring)).

12

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

(continued)

A-1646-13T3 23

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

(continued)

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).

A-1646-13T3 24

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.

A-1646-13T3 25

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.