On Appeal from Superior Court, Law Division, Passaic County.
Antell, Shebell and Muir, JJ. The opinion of the court was delivered by, Antell, P.J.A.D.
[207 NJSuper Page 147] This suit was brought under the Law Against Discrimination, N.J.S.A. 10:5-12a, upon a claim that plaintiff was discriminatorily discharged from employment because of his status as a married person. Defendants are plaintiff's former employer, United Parcel Service, Inc. ("UPS"), and its managerial personnel who were responsible for terminating plaintiff's employment. The earlier history of the case is related in our previous decision wherein we reversed an order for summary judgment in favor of defendants. 193 N.J. Super. 586 (App.Div.1984). Following our remand defendants again moved for summary judgment. That motion was denied by the trial court and the
case thereafter proceeded to trial. Plaintiff now appeals from an order of involuntary dismissal entered under R. 4:37-2(b) after the presentation of his evidence.
Broadly stated, plaintiff contends that defendants fired him because he, although married to someone else, was cohabiting with Patricia Arnett, another UPS employee.*fn1 Plaintiff asserts that his marital status was a material factor in the termination of his employment and that defendants would not have taken this action had he been unmarried. Defendants acknowledge discharging plaintiff, but maintain that they did so because of misconduct in plaintiff's job performance and not because of his marital status.
Believing that such action was mandated by our previous opinion, the trial court granted defendants' motion based upon plaintiff's failure to prove that other male and female unmarried UPS employees were permitted to cohabit without interference. Our intention in this regard was misconstrued.
In our previous opinion we made the following statement of plaintiff's contentions:
Plaintiff's claim essentially is that he was discharged because he was a married man who had a sexual liaison with a woman other than his wife. He alleges that his services would not have been terminated by defendant if he had been unmarried. Thus, his contention is that the company policy was that any married management employee who engaged in sexual activity out of wedlock would be discharged, but that any unmarried management employee who engaged in sexual activity would not be discharged. [ Slohoda v. United Parcel Serv., Inc., 193 N.J. Super. 586, 589 (App.Div.1984).]
We categorically held "that if an employer's discharge policy is based in significant part on an employee's marital status, a discharge resulting from such policy violates N.J.S.A. 10:5-12a." Id. at 590. The question presented, therefore, is whether the firing was materially grounded in an invidious reason, that is, the fact of his marriage to someone else while maintaining a relationship with Arnett. Plaintiff was free to prove this claim by whatever evidence was available to him. While a showing of differential treatment accorded other employees who were single might be one way of proving such discrimination, it is not exclusive. Nothing stated in our previous opinion suggests that plaintiff should be denied redress absent proof of other actual instances in which unmarried employees in like circumstances were treated differently than plaintiff.
Although the reason given by the trial court for the action under review was erroneous, defendants contend that the judgment of dismissal should be nevertheless affirmed because
plaintiff's proofs were inadequate under standards otherwise applicable in discrimination cases. The relevant parts of the record consist of plaintiff's direct and cross-examination and selected portions of depositions taken on oral examination of UPS's management personnel who are also named as defendants in the action.
Plaintiff began his employment as a delivery truck driver with UPS in 1972 and was married that same year. In 1975 he was elevated to the position of supervisor at the Englewood Center building, and a year and a half later was promoted to manager of the Spring Valley building. In 1979 he became manager of the Bernardsville delivery center. It therefore appears that his job performance up to the time of the events in question was regarded by defendants as highly satisfactory in all respects.
In 1975 and 1976 his marriage ran into difficulties. Shortly after he became the Bernardsville Center manager plaintiff came into contact with Patricia Arnett who was a package delivery driver working under his supervision. An intimate relationship developed in the summer of 1980 and in January 1981 plaintiff left his wife and began to live with Ms. Arnett. Plaintiff knew of the company policy against employment by UPS of both husband and wife. This rule required that where a marriage occurred between coemployees, one of the two was obliged to resign. There was also in force a policy against fraternization between management personnel, which included plaintiff, and other employees, such as Arnett.
In June 1981 plaintiff and Ms. Arnett were asked by division manager James Barry, who was plaintiff's supervisor, to meet in Smithfield Park in Parsippany with him and William Balser, the personnel manager of the North Jersey district. According to plaintiff, both Barry and Balser pointedly inquired into the status of his relationship with Arnett and expressed their dissatisfaction that plaintiff and Arnett were living together. During the discussion plaintiff named other coemployees who had "dated UPS girls" and said that he could not understand why his situation was being treated differently. In reply, Balser made the statement which lies at the heart of plaintiff's case. He said that the difference between plaintiff and the other employees was that they were "single folks" and plaintiff was a married man. Although plaintiff reasoned that he had then been separated ...