On appeal from the Division of Civil Rights.
King, Long and R.s. Cohen. The opinion of the court was delivered by King, P.J.A.D.
[250 NJSuper Page 340] In this case the complainant, Joseph Gimello, claimed that he was a victim of a discriminatory discharge from employment. He claimed that he was fired because of his obesity, a condition unrelated to his ability to do his job as office manager for a car rental agency. His employer claimed that he was terminated
because of inadequate job performance. The Director of the Division of Civil Rights, confirming the findings of the administrative law judge, concluded that the employer's reason for termination was pretextual, not bona fide, and that Gimello really was fired because of his actual or perceived obesity and not for any legitimate business reason. The employer now appeals this decision by the Director that Gimello was a victim of discrimination entitled to relief under our Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD or Law). We conclude that the record supports the decision of the Director. We affirm the adjudication of discrimination. We modify the damage award.
We summarize the highlights of the facts developed at the hearing in the Division of Civil Rights before Administrative Law Judge Duncan. Employer, Agency Rent-A-Car Systems, Inc. (Agency or employer), is a rental car agency with a principal office in Solon, Ohio. During 1978 and 1979, when Gimello started with Agency, it had about 130 offices throughout the country. At the time of the initial hearing in 1988, Agency had 493 offices nationally, including about 20 in New Jersey. Each office employed between two and five employees divided into two positions, office managers and management trainees. The job description of a manager trainee in the employer's manual states:
This is a two fold position; to deliver, prep and pick up rental units for our valued customers and to become actively involved in training and preparation for the management position.
The job description of an office manager states:
The office manager is responsible for organizing and coordinating the daily activities within their respective rental offices in accordance with standard company operating procedure, while working to expand the office through cooperative efforts with the sales representatives.
In addition, the office manager is responsible for the training and development of the manager trainee.
The then-district manager Donald Mogar hired Gimello as a management trainee in Agency's Camden office on January 10, 1978. The two had known each other before the hiring because Mogar was friendly with Gimello's younger brother. Gimello had stated on his employment application that he was 5'8" and 225 pounds. One month later on February 16, 1978 Agency promoted Gimello to office manager in the Trenton office. At first no management trainees worked at the Trenton office but soon one was assigned to Gimello's supervision. His salary increased from $8,300 annually as a management trainee to $734 per month ($8,808 annually) as an office manager. Gimello received several raises in the following months. On April 16, 1978 Agency raised Gimello's salary to $776 per month ($9,312 annually); on June 1, 1978 to $818 per month ($9,816 annually); on August 16, 1978 to $860 per month ($10,320 annually); on November 16, 1978 to $900 per month ($10,800 annually), and on May 16, 1979 to $942 per month ($11,304 annually). The then-district manager Gary Gradl recommended the raises and commented favorably on Gimello's performance.
While Gimello worked at the Trenton office he also received several bonuses for maintaining high levels of sales of "Deductible Protection Coverage" (DPC). Agency's manual describes DPC as "extremely important" and "beneficial to Agency." Employees sell the coverage in connection with car insurance, explaining that the coverage "eliminates the $750 deductible on the physical damage coverage." The manual states that DPC costs the customer a flat fee of $3.50 a day plus tax. Offices attaining 55% or greater monthly DPC sales received bonuses from Agency. Gradl noted Gimello's high DPC sales percentages on the form reflecting Gimello's raises. Interoffice memoranda from James Thatcher, Agency's Eastern Regional Director, congratulated the offices for DPC sales and bonuses. The memos also contained handwritten personal notes of congratulations to Gimello from Thatcher. In June 1978 Gimello's Trenton office had 91.9% DPC sales and received a memo from Thatcher with the office's percentage circled and "Joe! Great"
written in the margin. On the memo showing the office's 100% sales quota "average through February 13, 1979" DPC sales, Thatcher wrote: "Joe: OUTSTANDING . . . WHAT ELSE CAN I SAY. THANKS. JIM T." In March 1979, Gimello's office showed 102.5% (apparently a ratio of sales to sales quota) DPC sales and Thatcher wrote:
JOE: THIS IS A "COMPANY" ALL TIME RECORD -- INCREDIBLE JOB. JIM T.
The memos from Thatcher for both February and March DPC sales noted that all regional offices qualified for the bonuses by achieving at least 55% DPC sales. On Gimello's memo reflecting March sales Thatcher circled the Trenton office's percentage and wrote "JOE!" next to the figure. The last memo reflects DPC sales through mid-April when Gimello's office showed DPC sales of 102.9%.
On June 11, 1979 Agency transferred Gimello to the Cherry Hill office. Gimello received a salary increase to $968 per month, or $11,616 annually. At the Cherry Hill office Gimello supervised three management trainees and a larger volume of business than at the Trenton office. Gimello's wife also worked at Agency's Cherry Hill office part-time starting in 1979. On November 1, 1979 Gimello received another raise, bringing his yearly salary to $1,008 per month or $12,100 annually. In January 1980 Agency instituted a program it called the "14/14 Incentive Bonus Plan" in which office managers would receive a $14,000 base salary plus monthly bonuses equalling 7% of the office's monthly net income. While Agency's memo stated that "only the most competent and experienced office managers will be offered participation in the plan[,]" its memo approving the salary changes indicated that all office managers in the Eastern Region participated in the new compensation program. Gimello's only truly bad month was February 1980 when he received just a 32 bonus. That figure seems to be an aberration, however, since in all other months he earned at least a few hundred dollars and once up to about $1,200.
Agency also sent "Commendation Awards" to "those offices that have exceeded the highest level of competence in their respective markets." Gimello's Cherry Hill office received eight commendations from late 1979 through early 1983. Gimello also pointed to other letters from Agency's upper management in support of his performance as office manager. Sam Frankino, then chairman of Agency's board, commended Gimello and Mogar on "the fine performance of the Cherry Hill Office" in a May 15, 1981 letter. Another letter, dated August 9, 1982, accompanied a bonus check and complimented Gimello on the Cherry Hill office's "high performance."
The district manager for the territory including the Cherry Hill office managed the district from the Cherry Hill office location. Between June 1979 and June 1983 three district managers supervised Gimello: Lynn Tobiason (from June 1979 to sometime shortly after); Anthony Giannone (to October 1979); and Donald Mogar (to June 1983 when Gimello was fired). The only comment by Tobiason apparent in the record is in her recommendation of a raise for Gimello when he transferred from Trenton to Cherry Hill. Giannone complimented Gimello on his performance in September 1979 on a form reflecting one of Gimello's raises.
The record includes two evaluations of Gimello's performance compiled by Mogar. The first, dated December 8, 1981, described Gimello as a "good" office manager, but conditioned a recommendation for promotion on Gimello's taking a "course in employee/public relations." The second evaluation, dated May 1, 1982, contained more specific information: Mogar noted that Gimello should soften his telephone skills with customers and should try to manage dispatching and scheduling more efficiently. Mogar again recommended a course in "employee/public relations" but urged promotion more emphatically than he did in his December evaluation. Mogar explained at the hearing that he believed the course would improve Gimello's public speaking skills rather than his skills in dealing with employees. He testified that since a promotion to district manager would
give Gimello more opportunities to give speeches and go on "sales calls," the course would be an "asset."
Agency conducted several "audits" of the Cherry Hill office while Gimello was the office manager. These "audits" apparently are spot-checks of the office's cash, paperwork and procedures performed at two to five-month intervals from January 20, 1982 to March 30, 1983. The audits noted several problems with the office, including missing contracts, paperwork and contracts not completed correctly, and employees not requiring deposits on DPC purchases. The audits also showed that the "revenue" in the office was "off," but with discrepancies of only $1.50, $3, $17.50 and $4. In his comments on the audit, Gimello explained that the mistakes in revenue were due to trainees' carelessness. Gimello said that the rate of turnover in his Cherry Hill office was "heavy" and that "[m]any mistakes can be attributed to [the] turnover of trainees."
In the spring of 1982, Richard Brindisi became Regional Director for the area, including the Cherry Hill office. Gimello stated that although he spoke to Brindisi "frequently" on the phone, the two did not meet until September 1982 when Mogar brought Brindisi to the office for a tour and evaluation. Gimello testified that Brindisi complimented him on the office's "stats," "overall numbers", and "revenue and collections." Brindisi told Gimello to "keep up the good work."
Mogar testified that after that discussion he and Brindisi went out to lunch to discuss business. The two men discussed which employees in the district were "promotable." Mogar told Brindisi that he felt Gimello was "promotable to a district manager's spot." Mogar testified that Brindisi said, "I don't feel Joe is promotable because of his size and weight." Mogar stated that Brindisi thought that Gimello would not be able to travel from office to office to perform a district manager's functions. Mogar stated that at first he laughed because he thought Brindisi was joking but he later realized that Brindisi was serious. When Mogar later told Gimello about the conversation,
Gimello was "surprised" but "handled it kind of lightly" because he felt his "track record would stand for itself."
As Gimello reflected on Brindisi's comment, he decided to try to lose weight. He consulted Dr. Samuel Goldman, a specialist of 30 years in the field of weight loss, who had successfully treated obesity in a person Gimello knew. On his first visit to Goldman on February 7, 1983 Gimello weighed 324 pounds. Dr. Goldman put Gimello on a diet and prescribed a diuretic and "[p]hendimetrozine and pheneramine," non-amphetamine appetite suppressants. Gimello lost 52 pounds and was down to 272 pounds in May 1983.
Goldman testified at the hearing both as a treating physician and as an expert in the field of treating obesity. He stated that a normal weight for a man of Gimello's height, age and frame was about 180 to 200 pounds. Goldman stated that while overeating, heredity and metabolism were factors that might cause obesity, pinpointing the exact cause of any patient's obesity is difficult. The doctor also related Gimello's statements about his life-long weight problem and family history of obesity. In Goldman's opinion, Gimello's weight did not impede his ability to perform his job. He said: "Mr. Gimello has been obese the majority of his life, and I doubt very much that it has been a detriment to his work in any way. It has no bearing on his ability to perform his duties."
At some point during Gimello's period of weight loss regime in early 1983, Mogar spoke to Brindisi and told the regional director about Gimello's dieting progress. Mogar testified that he told Brindisi that Gimello "dropped 30 or 40 pounds" and "two or three notches in his belt." Mogar said that Brindisi only responded by saying "he [has] to go a long way."
Gimello contends that Brindisi made other comments about Gimello's weight. In February or March 1983 a police officer came to the office to ask questions about unpaid parking tickets on the rental cars. Mogar called Brindisi to ask what to do.
Mogar explained that the officer threatened to take Gimello to the station unless they could pay the tickets. Mogar testified:
I mentioned to Rick [Brindisi] the cop is a pretty big boy and he will take Joe away. He came back with, well, he can't be bigger than Joe.
Gimello then picked up another telephone extension. He described the rest of the conversation:
So I got on the line, and Don [Mogar] stayed on the line as well, and Rick [Brindisi] said, is there a cop really bigger than you? And the cop was pretty gigantic, and I said, Yes, he is bigger than me, but he emphasized with overexaggeration, is he really bigger than you, about three times, and I just ignored the statements since he was a superior and proceeded with the facts at hand, what we were trying to accomplish.
Mogar also testified that during various telephone conversations, Brindisi would refer jokingly to Gimello's weight. Once, Mogar stated, Brindisi asked if Gimello was still eating his "nocal donuts." When Mogar once told Brindisi what Gimello ordered for lunch, Brindisi asked: "how can a guy eat two cheesesteaks and . . . a diet coke? What's the sense of a diet coke?"
In April 1983 Brindisi and Vince Garrenton, a vice president of operations, visited the office on a "sneak attack" unannounced audit. Mogar said they "tore the office apart" and searched through files, drawers, desks, cars and his and Gimello's briefcases. Gimello stated that they "appeared to be looking for something." Later Brindisi and Garrenton talked with Mogar and Gimello and explained that there was a problem with employee turnover in the office. Gimello testified that this discussion was the first time anyone in upper management had referred to a turnover problem with the office. Gimello stated that neither Brindisi nor Garrenton offered any suggestions about how to deal with turnover in the office.
Mogar testified that when Gimello returned to the front of the office to assist customers, Garrenton told him that Gimello was the cause of the problem "because of his size and appearance." Garrenton pointed to Gimello through a window between the offices and said, "that's your problem over there, that fat slob." At the hearing Gimello produced a handwritten
note which he wrote following a conversation with Mogar. Gimello testified that the Division of Civil Rights had advised him to keep records of things his superiors said and did when he first consulted them in early 1983. The note is dated April 21, 1983 and says:
They fear I would hire fat sloppy people 4-21-83 8:05 a.m.
Gimello stated that he wrote the note after Mogar told him that Brindisi said that if Gimello were promoted he would hire fat, sloppy people. Though Mogar did not remember the comment, he did recall that around that time Brindisi told him that Gimello could not hire new employees without Mogar's approval. When Mogar talked to Brindisi the following day, Brindisi told Mogar to get Gimello to resign. Gimello would not resign. Brindisi put Gimello on "30 day probation" and told Mogar to fire Gimello if another new manager trainee quit or was fired. Mogar said that the office had recently hired a new manager trainee and was running an advertisement to recruit more applicants.
On May 23 and June 8, 1983 two manager trainees at the Cherry Hill office quit. When Gimello would not resign, Mogar fired him on June 9, 1983 at Brindisi's direction. The "employee change notice" form reflecting Gimello's termination shows that he was fired for: "Not providing the service to our customers, as ARAC offers ea [sic]; delivering washing rental units, due to turnover of manager trainees." Four days later, Agency fired Gimello's wife, Terrie, from her part-time job in the Cherry Hill office.
Vince Garrenton testified at the hearing. At the time that Gimello was the Cherry Hill office manager, Garrenton was Agency's vice-president of operations. Garrenton stated that he could recall "horror stories" about Gimello's Cherry Hill office "with respect to customer complaints and employee turnover." Garrenton testified that when he visited the office with Brindisi he witnessed Gimello's interaction with customers and employees. He described Gimello's manner as "crude" and
"very, very harsh." Brindisi had shown Garrenton a "computer sheet" listing employees who had been terminated from the Cherry Hill office. Garrenton stated that an office manager's "primary responsibility" is to recruit and train employees for advancement, and felt that the employee turnover in Gimello's office was unacceptable.
Agency also presented testimony from Terry Holt, a senior vice-president. Holt did not state that he had any personal experience working with Gimello. Holt testified that several men who worked for Agency were "heavier folks" about "240 and up." Gimello established on cross examination that none of these "heavier folks" were supervised by Brindisi. Holt said that the number of employees terminated while Gimello managed the Cherry Hill office was "extremely out of line" and unacceptable. Holt described the commendation awards as monthly motivational tools awarded on a "rotation basis." According to Holt, the regional directors distributed the "office of the month" plaques twice per month but the awards did not commemorate exceptional performance because regional directors could award the plaques for many reasons -- especially if it was merely that office's turn to get one. Holt stated that Gimello's mistakes "wouldn't be tolerated" if Gimello worked for Agency currently.
When questioned about employee sales of DPC, Holt stated the DPC sales percentages could be "too high," suggestive of employees using "arm-twisting" sales techniques. He testified that average DPC sales of about 50% were "very acceptable." Percentages consistently over 70 to 75%, he said, indicated questionable sales techniques.
At the hearing Agency also presented several witnesses who had worked with Gimello. Robert Shinault started as a management trainee with Gimello in January 1980. Shinault described Gimello as "rough and callous" and that Gimello had called him "stupid" and "a f/--ing a--hole" on a daily basis. Shinault said that Gimello treated all management trainees
poorly. Shinault testified that Gimello fired him in July 1980 after a particularly embarrassing argument in the office. The employee "change notice" reflecting Shinault's termination states that he quit after a reprimand about his poor attitude.
Andrew Drexler also testified for Agency. Gimello hired Drexler as a manager trainee in August 1980. Drexler testified that although a local employment agency referred him to the job, Gimello falsely told the agency that he did not hire Drexler in order to save the $900 fee. Drexler said that Gimello was "obnoxious" and "arrogant" towards customers and even made a remark stereotyping Jewish people when he learned that Drexler was Jewish. Gimello fired him in November 1980 for not following instructions and being "very slow on the road," though the change notice reflects that Mogar initiated Drexler's firing.
Lawrence Ston also testified for Agency. Ston had worked with Gimello at his new job at Insurance Rent-A-Car in 1984. Ston testified that Gimello was moody and once expressed a desire to "get back" at Agency for firing him. Ston also said that when Gimello later had fired him from Insurance Rent-A-Car, he (Ston) pushed Gimello and Gimello fell down. Ston stated that when he read about Gimello's suit against Agency in the newspapers he contacted Employer's main office in Ohio, apparently to offer his assistance.
When Gimello left the office he took several documents that Agency asserts belonged to it. The documents included termination forms for several manager trainees who had worked under Gimello and employment applications completed by applicants Gimello felt could have been hired but were rejected by Agency which also had copies of the documents. Agency alleged that Gimello took them to "falsely bolster his spurious allegations." Gimello ...