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Mattiello v. Grand Union Co.

July 13, 2000


Before Judges Kestin and Wefing.

The opinion of the court was delivered by: Kestin, J.A.D.


Argued: June 27, 2000

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County.

In his complaint for wrongful discharge, plaintiff alleged, inter alia, that his dismissal from defendant's employ was unlawful by reason of discrimination based upon age, in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42. A jury found to the contrary, and plaintiff appeals from the judgment based upon that verdict.

The sole issue on appeal assigns error to the trial judge's charge and the single liability interrogatory submitted to the jury. Plaintiff contends that they reflected a misapplication of governing law, therefore depriving him of a fair and just trial.

Our review of the record with the benefit of the written and oral arguments advanced by the parties, in the light of governing principles of law, discloses no such error. Accordingly, we affirm.

Plaintiff, forty-seven years of age, worked as a full-time night- crew stock clerk at a supermarket owned by defendant. He had been so employed for seventeen years and was earning $16.66 per hour for an annual wage of about $41,000, with full benefits.

On July 17, 1995, plaintiff was accused of violating defendant's "associate purchase policy" (policy) by taking, opening and drinking from a soft drink bottle without first paying for it. The circumstantial details were established in the proofs. It will suffice for our purposes to note that plaintiff did not dispute the assertion that he had taken the bottle and partially consumed its contents; but he offered a cogent explanation why he had not paid for it before drinking from it, along with a contention that the policy was not as strictly or uniformly applied as defendant presented it to be. Plaintiff argued that defendant's application of the policy to him was a pretext for discharging him and replacing him with a younger person at a much lower salary. In support of this position, plaintiff also showed, inter alia, that defendant had experienced financial difficulties leading to a bankruptcy filing and that only eleven days after plaintiff's discharge defendant offered a retirement incentive to its more senior employees.

The gravamen of plaintiff's argument on appeal is that he was entitled to the benefit of certain jury guidance, both in the judge's charge and on the form of interrogatories to be answered, which he did not receive. He contends that the jury should have been told that if it disbelieved the reason defendant gave for plaintiff's discharge, i.e., violation of the "associate purchase policy", it could find for plaintiff solely on the basis of the prima facie case for discrimination which plaintiff had concededly made, without addressing the totality of the proofs to determine whether they permitted a conclusion that plaintiff had, on the whole, met his burden of proof to establish unlawful (age-based) discrimination as the motivation for his discharge.

Our review of the jury charge taken as a whole, see Fischer v. Canario, 143 N.J. 235, 254 (1996), discloses that the jury received adequate guidance regarding its function in this employment discrimination case. In adjudicating state-law discrimination cases, New Jersey normatively follows federal case law analyses and approaches. See generally Erickson v. Marsh & McLennan Co., 117 N.J. 539, 549-51 (1990); Peper v. Princeton University, 77 N.J. 55, 82-83 (1978); Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 428-30 (App. Div. 1995). We have, in particular, adopted the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed.2d 668 (1973), as an appropriate starting point in cases arising under our Law Against Discrimination, N.J.S.A. 10:5-1 to -42. See Anderson v. Exxon Co., 89 N.J. 483, 492-93 (1982).

As recently as a few months ago, in Reeves v. Sanderson Plumbing Products, Inc., ___ U.S. ___, 120 S.Ct. 2097, ___ L. Ed. 2d ___ (2000), the United States Supreme Court reminded us that

McDonnell Douglas and subsequent decisions have "established an allocation of the burden of production and an order for the presentation of proof in ... discriminatory-treatment cases." [Id. at ___, 120 S. Ct. at 2106, ___ L. Ed. 2d at ___ (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2746, 125 L. Ed.2d 407, 415 (1993)).]

Reeves further instructed that although the presumption of discrimination [which arises when the four-part prima facie showing of McDonnell Douglas has been made] "drops out of the picture" once the defendant meets its burden of production ... the trier of fact may still consider the evidence establishing the plaintiff's prima facie case "and inferences properly drawn therefrom ... on the issue of whether the defendant's explanation is pretextual"[.] [Id. at ___, 120 S. Ct. at 2106, ___ L. Ed. 2d at ___ (citations omitted) (emphasis supplied) (quoting Hicks, supra, 509 U.S. at 511, 113 S. Ct. at 2749, 125 ...

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