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Horvath v. Rimtec Corporation

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


July 19, 2000

RICHARD HORVATH AND JUDITH HORVATH,
PLAINTIFFS,
V.
RIMTEC CORPORATION, TERUHISA KOEDA, RAY JOHNSTON, SR. AND DANIEL PRESTON,
DEFENDANTS.

The opinion of the court was delivered by: Irenas, District Judge

HONORABLE JOSEPH E. IRENAS

OPINION

Defendant Daniel Preston moves for summary judgment on plaintiff Richard Horvath's claim alleging age discrimination under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD"), his claims of negligent and intentional infliction of emotional distress and malicious interference with existing employment relations or prospective economic advantage and on plaintiff Judith Horvath's per quod claim for loss of consortium. *fn1 For the reasons set forth below, defendant's motion for summary judgment is granted.

I.

Fifty-four year old plaintiff Richard Horvath, *fn2 commenced employment with Rimtec Corporation ("Rimtec"), a plastics manufacturer, in or around April, 1969, and has been employed by Rimtec and its predecessor continuously for 31 years. During his tenure as an employee for Rimtec and its predecessor, plaintiff has worked as a Laborer, Production Line Worker, Quality Control Mechanic, General Foreman, Production Supervisor and Pilot Line Operator. Between 1989 and 1993, plaintiff was promoted twice, first in 1989 to Production Supervisor and in 1991 to General Foreman. He currently works in the position of Utility Coordinator.

In 1993, while plaintiff worked as the plant's General foreman, due to financial difficulties, the Company was forced to restructure. The General Foreman position was eliminated and plaintiff was moved back to his former position of day shift Production Supervisor. Plaintiff's salary and benefits were not affected by the position change. At the same time, Gary Woods, (in his 30's at the time) was moved into the position of Color Matcher and Richard Grzybowski (in his 30's at the time) was moved into the position of night shift Production Supervisor. According to Grzybowski, Mr. Horvath trained both him and Mr. Woods over many years. Plaintiff remained in the position of day shift Production Supervisor until May, 1996.

In 1996, because plaintiff's supervisor was demoted to day shift Production Supervisor, plaintiff was forced into the midnight shift Production Supervisor position. Because he was dealing with family issues that required him to work during the day, on September 17, 1996, plaintiff wrote to Plant Manager, Ray Johnston and proposed a new day shift position for himself, entitled "Plant Cleanliness Coordinator/Supervisor." Johnston rejected plaintiff's proposal but offered him the lower paying position of Pilot Line Operator. According to plaintiff, he accepted the lower paying position of Pilot Line Operator because his family problems required that he have a day job. Plaintiff remained in the Pilot Line position until January of 1998.

Defendant Daniel Preston, who is currently fifty-one years old, commenced work at Rimtec on January 6, 1997. He was employed by Rimtec until December of 1998 when he left to take a position with another company in the Midwest. Approximately one month after Preston was hired, Rimtec hired fifty year old Charles Goldman. During 1998, the plant was run by a three-person executive committee consisting of Preston, Goldman and Ray Johnston, Sr. Johnston was the top Executive at the plant, Preston the Executive of Production, Engineering and Maintenance and Goldman the Executive Indirect of Operations. Preston claims that prior to assuming the position of Executive of Production, Engineering and Maintenance on February 26, 1998, he had no supervisory responsibility over Mr. Horvath. Although Preston was never plaintiff's direct supervisor, once in this position, he became the direct supervisor to plaintiff's supervisor.

In December, 1997, plaintiff submitted a proposal to management, including Preston, that described a new position similar to the abolished General Foreman position. (Pl. Ex. I.) This position eventually materialized in early 1998 when Preston, Goldman and Johnston decided to recreate the General Foreman position. The position was given to Grzybowski. *fn3 According to Johnston, although plaintiff was qualified for the position and it was promised to him, he was not given the opportunity to interview for it because of his alleged retirement plans. In contrast, Koeda testified that plaintiff was not given the position because of his lack of technical ability. (Koeda dep. at 102-03.) Moreover, although Horvath maintains that Preston knew that plaintiff wanted to be the General Foreman, Preston testified that Horvath never expressed any interest in the recreated position. (Preston dep. at 89, 115-16.)

Around the same time, Horvath was offered and accepted the newly created Utility Coordinator position. Plaintiff contends that although he was involved in meetings and discussions with upper level Rimtec management about this position, including defendant Preston, the actual position turned out to be different from the job description. In addition, although Horvath's salary was increased, the Utility Coordinator position paid approximately $20,000 less than plaintiff was making in 1993-1996 as General Foreman and Production Supervisor. Also in 1998, plaintiff alleges that other positions became available for which he was not considered. For example, Woods and Eckman both testified that plaintiff was qualified to be a Color Matcher, but he was never considered for this position. (Woods dep. at 48; Eckman dep. at 58.)

Plaintiff submitted a "formal notice of complaint" to his direct supervisor Richard Grzybowski on August 27, 1998, about not being considered or interviewed for the various positions that had become available. (Pl. Ex. L.) This letter was copied to Gary Woods and Dan Preston. Plaintiff never received a response to his letter. According to plaintiff, prior to this formal complaint, he complained to Preston about being treated unfairly and being discriminated on the basis of age. Preston testified that in 1998, Horvath told him that he did not feel the Company was treating him well and that he would be seeking legal advice, but that Horvath "was not making a claim of age discrimination." *fn4 (Preston brief at 7; Preston dep. at 43, 45-47, 64-65.) Preston testified that he told Johnston about his conversation with Horvath, but did not know what Johnston did with the information.

Plaintiff also cites to the Safety Manager position that became available in June 1998 and was given to Joseph Gormley, (age 25 at the time) who was hired from outside the plant and to Grzybowski's promotion to the position of Production Manager in July, 1998. Plaintiff contends that these are examples of positions for which he was qualified but not considered.

In response to plaintiff's allegations, Preston maintains that beginning in March of 1998, he assumed a major responsibility in preparing for Union negotiations and delegated many of his plant responsibilities to Grzybowski, Horvath's immediate supervisor. He testified that in June, 1998, when the Company felt it was necessary to reorganize certain personnel, he was unavailable to participate in the personnel decisions. Preston believes that these decisions were made by Koeda and Johnston; a memo, signed only by Johnston, announced the changes. Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on August 27, 1998, alleging that he was discriminated against based on his age. *fn5 (Pl. Ex. K.) He described various positions that were filled by employees aged forty (40) and below. (Id.) Specifically, he alleged that during 1998, the positions of Traffic Manager, General Foreman and Production Manager became available, and although he was qualified for each of these positions, Rimtec gave the jobs to younger, less qualified individuals. *fn6 (Id.) On December 10, 1999, the EEOC sent plaintiff a letter informing him that they were "administratively dismissing this charge and terminating all processing." (Pl. Ex. O.) The EEOC's letter further explained that a "private ADEA lawsuit may be filed any time from 60 days after a charge is filed with EEOC until 90 days after receipt of notification that EEOC has terminated its processing of this charge." (Id.)

After filing his Charge with the EEOC, plaintiff received his 1999 annual evaluation from Grzybowski which rated his work performance as "satisfactory" in every way, except in the category "Work Ethic and Attitude," Grzybowski rated him as "need[ing] improvement." (Pl. Ex. M.) Although Grzybowski testified that plaintiff's evaluation was "as good or better than most," plaintiff was not given a raise in January 1999 when other employees received their raises. (Johnston dep. at 57-58.) In fact, plaintiff points out that Nick Evert (over age 40) also was not given a raise, while William Evert (under age 40) who received a less favorable evaluation compared to his, was given a raise. (Pl. Ex. N.) After realizing that plaintiff did not receive a raise, Grzybowski went to Johnston "to fight" to get plaintiff a raise. *fn7 (Grzybowski dep. at 31; Johnston dep. at 59.) Both Woods and Grzybowski testified that they felt like they were "hitting a brick wall" when they made efforts to get plaintiff back into production and to the day shift Production Supervisor position. (Id. at 36; Woods dep. at 71.) Preston contends that he has no recollection of participating in any decision concerning Horvath's raise for 1999. (Preston dep. at 188, 191, 194, 196-97.) However, Preston testified that he participated in the raise process of staff employees, including Mr. Horvath, for the January, 1999 calendar year, but could not explain why plaintiff did not receive a raise. (Id. at 189-90.) In addition, Johnston testified that it was Preston who was responsible for ensuring that plaintiff received a raise in January, 1999. (Johnston 30(b)(6) dep. at 15, 35.) Also, Goldman testified that Preston ordinally decided to give plaintiff a low raise, but after Goldman suggested it be even lower "to send a message," Preston put no raise forward. (Goldman 30(b)(6) dep. at 48, 51.)

On February 16, 1999, plaintiff and his wife Judith Horvath filed the instant action against Rimtec, Teruhisa Koeda, the former President of Rimtec, Raymond Johnston, Sr., the current Plant Manager of Rimtec, and Daniel Preston, the former Production and Maintenance Executive of Rimtec. Specifically, plaintiff has asserted claims of discrimination under the NJLAD and claims alleging intentional infliction of emotional distress, negligent infliction of emotional distress and malicious interference with existing employment relations or prospective economic advantage against defendant Preston. *fn8 In addition, Mrs. Horvath brings a claim for loss of consortium against Preston. On May 30, 2000, defendant Preston filed the instant motion for summary judgment.

II.

"[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

III.

The NJLAD provides in relevant part:

It shall be an unlawful employment practice, or . . . unlawful discrimination . . . for an employer, because of the . . . age . . . of any individual . . . To discriminate against such individual in compensation or in terms, condition, or privileges of employment . . . . N.J.S.A. 10:5-12(a). In Tyson v. CIGNA Corp., 918 F. Supp. 836 (D.N.J. 1996), modified by, Failla v. City of Passaic, 146 F.3d 149, 155-59 (3d Cir. 1998), this Court undertook an extensive analysis of the extent to which individual liability is imposed under the NJLAD. The Court held that N.J.S.A. 10:5-12(a) which deals with employment discrimination, imposes liability only on "employers" and not on individual employees. Id. at 840. The Court went on to say that the only way for an employee to be found individually liable under the NJLAD for aiding or abetting an employer's discriminatory conduct pursuant to N.J.S.A. 10:5-12(e). *fn9 Id. at 837-41 ("The only basis for employee liability [under the NJLAD] is found in N.J.S.A. 10:5-12(e)"); see N.J.S.A. 10:5-12(e) (it is "an unlawful employment practice, or . . . unlawful discrimination . . . [f]or any person , whether an employer or an employee or not, to aid or abet . . . the doing any of the acts forbidden under this act, or to attempt to do so."). Accordingly, while an employee cannot be held individually liable on his own, "[e]mployers and individual supervisors can be held liable under the [NJLAD] for aiding and abetting another's [] discriminatory conduct." Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 126 (3d Cir. 1999).

Furthermore, the Third Circuit has held that even inaction by a supervisory employee may rise to the level of "knowingly giv[ing] substantial assistance or encouragement to the unlawful conduct of his employer." Failla, 146 F.3d at 158 n.11. However, the Failla Court emphasized the need for a "heightened standard" for aiding and abetting liability. 146 F.3d at 159 ("[T]he degree of involvement, knowledge and culpability required as a basis for liability is heightened . . . .").

Here, Preston contends that he cannot be held liable under an aiding and abetting theory because he worked at Rimtec for less than two years, had general supervision over Horvath for only 10 months and is only three years younger than plaintiff. He argues that his failure to investigate Horvath's general complaints of unfair treatment do not rise to the level of aiding and abetting. In addition, Preston maintains that "there is no evidence in the record that Preston was aware that Horvath was discriminated against [and] Preston did not feel that Horvath had been subject to age discrimination." (Def. brief at 16.)

In response, plaintiff asserts that as one of three executives responsible for the operation of Rimtec and as his supervisor, Preston had "direct involvement with [plaintiff's] promotion to the Utility Coordinator and was a decisionmaker vis-a-vis the terms and conditions of [plaintiff's] employment." (Pl. brief at 19.) Plaintiff further argues that Preston testified that plaintiff verbally complained to him about being discriminated against on the basis of his age, and that he did virtually nothing in response.

As stated above, a defendant can be held liable for aiding and abetting an employer's discriminatory conduct if plaintiff can prove that the individual employee's conduct rose to the level of "substantial assistance and encouragement." See e.g., Whitaker v. Mercer County, 65 F. Supp.2d 230, 247 (D.N.J. 1999). The Court holds that plaintiff has failed to put forth sufficient evidence to show that Preston's actions or inactions rose to the level of "substantial assistance or encouragement" to discriminatory action, necessary to impose supervisory liability under the NJLAD. Plaintiff asserts that Preston was aware of plaintiff's general complaints that he was treated unfairly, that he was denied certain positions and that he wished to return to a job in production, however, these allegations amount to nothing more than a supervisor's passivity or inaction. See Tyson, 918 F. Supp. at 837 ("A supervisory employee's omissions, acquiescence, passivity or other failure to act will not support a claim under the NJLAD."). Furthermore, even if the Court concluded that plaintiff's 1998 complaint to Preston included an allegation of age discrimination, Preston's inaction was insufficient to rise to the level of "substantial assistance or encouragement." Contrary to plaintiff's assertions, Preston's conduct was in no way similar to the actions of the plaintiff's supervisor in the Hurley case, who was found individually liable. In Hurley, the Third Circuit explained:

The [Atlantic City Police Departments's] wrongful conduct in this case was inaction-its tolerance of sexual harassment. The jury had evidence before it that [plaintiff's supervisor] Madamba assisted this tolerance by tolerating and even encouraging the harassment. As part of the chain of command that Hurley was expected to follow, he controlled her access to the most effective potential solutions to the harassment.

Instead of taking steps to assist her; he told her that she stop complaining or it would only get worse; he suggested that sleeping with him might protect her, he laughed at the drawings and graffiti about her; and he demeaned her as an officer on a daily basis. Hurley, 174 F.3d at 127.

In Hurley, plaintiff's supervisor not only failed to investigate her claims of sexual harassment, but he engaged in conduct that promoted and encouraged discrimination. In the instant case, Preston's alleged inaction not only fails to reach the necessary standard, but he did in fact inform Johnston of plaintiff's complaints. Accordingly, the Court finds that plaintiff's discrimination claim against Preston under the NJLAD fails as a matter of law.

IV.

The NJLAD provides that an unlawful employment action occurs when a person, whether an employer or employee takes "reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act." N.J.S.A 10:5-12(d). The legal standards for evaluating retaliation claims under the NJLAD are the same as those under the ADEA. See, e.g., Lehmann v. Toys `R' Us, Inc., 626 A.2d 445, 452 (1993).

In order to establish a prima facie case of discriminatory retaliation, a plaintiff must show (1) that he engaged in protected activity; (2) that the employer took adverse action against him; and (3) that a causal link exists between the protected activity and the employer's adverse action. Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997); see Jamison v. Rockaway Township Bd. of Educ., 577 A.2d 177 (App. Div. 1990). The Third Circuit has stated:

Retaliatory conduct other than discharge or refusal to rehire is thus proscribed by Title VII [and the ADEA] only if it alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of "employment opportunities, or "adversely affect[s] his [or her] status as an employee. It follows that not everything that makes an employee unhappy" qualifies as retaliation, for [o]therwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300-01 (3d Cir. 1997) (internal quotations and citations omitted).

Plaintiff alleges that defendant has "retaliat[ed] against [him] because of his expressed opposition to the offensive discriminatory conduct in the workplace" and has "subject[ed him] to more onerous working conditions." (Compl. at ¶ 31, 39.) He further maintains that shortly after he filed a Charge of Discrimination with the EEOC on August 30, 1998, he received his yearly evaluation from his supervisor, Grzybowski. Although Grzybowski stated that plaintiff's evaluation was better than most of the other employees he evaluated, plaintiff did not receive a raise in January, 1999, when the other Rimtec employees received their raises. In addition, plaintiff has submitted evaluations for two other Rimtec employees who were reviewed by Grzybowski. Although, William Evert, over age 40, and Nick Evert, under age 40, both received evaluations that were worse than plaintiff's, Nick Evert, received a raise while Bill Evert and plaintiff did not. (See Pl. Ex. N.)

Plaintiff argues that this course of events shows a casual connection between his filing a Charge of Discrimination in August of 1998, and Rimtec's failure to give him a raise in January of 1999. Specifically, plaintiff puts forth evidence that Preston participated in the raise process for staff employees, including plaintiff, for their 1999 raises and that plaintiff did not receive one. Plaintiff also puts forth evidence that Johnston testified that Preston was responsible for Horvath's raise in January, 1999 and that Goldman testified that Preston originally decided to give Horvath a low raise and later decided to give none at all to "send a message." Plaintiff further maintains that he has been denied computer training, despite his repeated requests, while other younger employees have been immediately enrolled in training programs and that he has been "ignored, shunned, and excluded from meetings by Rimtec's upper level management." (Horvath dep. vol. 2 at 235-37; vol. 3 at 30-33.)

Defendant's main contention is that plaintiff cannot establish that he suffered an adverse employment action, hence, he has not made out a prima facie case of retaliation. Defendant argues that plaintiff ultimately received his raise and it was applied retroactively. He also argues that his decision to minimize contact with plaintiff after plaintiff filed a Charge of Discrimination with the EEOC is not evidence of retaliation, but an "over abundance of caution." (Preston brief at 18.) In addition, Preston contends that plaintiff's allegations that he was denied computer training is not mentioned in his Complaint nor claimed as retaliation in his deposition.

Defendant is correct in his contention that plaintiff has not suffered an adverse employment action that is causally connected to his filing a Charge of Discrimination with the EEOC. Although there is no doubt that Rimtec failed to give plaintiff a raise in January of 1999, which was at the same time that he filed his Charge with the EEOC, he was ultimately awarded his raise and it was applied retroactively. While the Court finds that Preston may have participated in determining whether plaintiff received a raise, because plaintiff was "ultimately rewarded" his raise, he did not suffer an adverse employment action. Howze v. Virginia Polytechnic, 901 F. Supp. 1091, 1096 (W.D. Va. 1995).

In addition, to make out an adverse employment action, a plaintiff must show that it "adversely affect[ed] professional reputation or ability to gain future employment." Id. (citing Nelson v. Upsala College, 51 F.3d 383, 387 (3d Cir. 1995)); see, e.g., Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995); Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 546 (6th Cir. 1999). In this case, plaintiff's assertions that he suffered an adverse employment action because he was shunned by defendant and because he did not receive computer training *fn10 do not rise to the level of an adverse employment action. Plaintiff makes no argument that these alleged actions adversely affected his professional reputation or ability to gain future employment. Accordingly, because plaintiff has failed to show that a causal link exists between protected activity and Preston's alleged employment action, his retaliation claim pursuant to the NJLAD must fail.

V.

Along with his claims alleging discrimination, plaintiff brings state law claims for negligent infliction of emotional distress, intentional infliction of emotional distress and malicious interference with existing employment relations or with prospective economic advantage. In addition, Mrs. Horvath brings a claim for loss of consortium.

First, plaintiff concedes that he is unable to make out a prima facie case for negligent infliction of emotional distress, therefore, defendant's motion for summary judgment on this claim is granted.

Second, defendant is correct that plaintiff's claim for intentional infliction of emotional distress fails as a matter of law. To establish an intentional infliction of emotional distress claim under New Jersey law, a plaintiff must show (1) that the defendant intended to cause emotional distress; (2) that the conduct was extreme and outrageous; (3) that the actions proximately caused emotional distress; and (4) that plaintiff's emotional distress was severe. Buckley v. Trenton Saving Fund Soc., 544 A.2d 857 (1988); DeJoy v. Comcast Cable Comm., Inc., 941 F. Supp. 468 (D.N.J. 1996).

To establish extreme and outrageous conduct, a plaintiff must show conduct "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Buckley, 544 A.2d 857 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). The Court notes that "the limited scope of the tort tolerates many kinds of unjust, unfair and unkind conduct." Fregara v. Jet Aviation Business Jets, 764 F. Supp. 940, 956 (D.N.J. 1991) (quoting Cautilli v. GAF Corp., 531 F. Supp. 71, 74 (E.D.Pa. 1982)). This is especially true in the employment context. In fact, courts have held that discrimination alone does not state a claim for intentional infliction of emotional distress. Nichols v. Acme Markets, Inc., 712 F. Supp. 488 (E.D.Pa. 1989) (holding that racial discrimination alone does not state a claim for intentional infliction of emotional distress). Here, plaintiff has not shown conduct sufficiently extreme and outrageous to constitute intentional infliction of emotional distress. Accordingly, his claim fails on its merits and summary judgment will be granted to defendant.

Third, plaintiff asserts a claim of malicious interference with existing employment relations or with prospective economic advantage against defendant Preston. To make out such a claim, a plaintiff must show the following four elements: "(1) a reasonable expectation of economic advantage to plaintiff; (2) interference done intentionally and with `malice'; (3) causal connection between interference and the loss of prospective gain; and (4) actual damages." Dejoy, 941 F. Supp. at 477 (citing Printing Mart-Morristown v. Sharp Elec. Corp., 563 A.2d 31 (1989)).

New Jersey courts have ruled that it is "fundamental" to a cause of action for tortious interference with prospective economic advantage that "the claim be directed against defendants who are not parties to the relationship." Printing Mart, 563 A.2d at 37. In addition, federal courts have held that such claims brought by an employee against a supervisor acting in the course of his employment must be dismissed. See Michelson v. Exxon Research and Engineering Co., 808 F.2d 1005, 1007-08 (3d Cir. 1987) (applying Pennsylvania law); DeJoy, 941 F. Supp. at 478; Obendorfer v. Gitano Group, Inc., 838 F. Supp. 950-956 (D.N.J. 1993). Thus, only when an employee asserts that an officer or agent of corporation acted outside the scope of his employment and/or for his own personal gain may the employee go forward with his claim for tortious interference. DeJoy, 941 F. Supp. at 478. In the instant case, plaintiff makes no assertions in either his Complaint or his briefs that defendant Preston acted outside the scope of his employment and/or for his own personal gain. Accordingly, plaintiff's claim against defendant Preston for tortious interference must fail as a matter of law. Lastly, plaintiff Mrs. Horvath asserts a claim for loss of consortium against Preston. She alleges that she has "been deprived of the comfort, care companionship, society, consortium, and services of her spouse." (Compl. at ¶ 86.) Loss of consortium claims may be brought by a spouse for injury to his or her spouse arising from a tort. Reilly v. Prudential Prop. & Casualty Ins., Co., 653 F. Supp. 725, 735 (D.N.J. 1987). The right of the spouse to recover on a loss of consortium claim depends upon the existence of tortious conduct on the part of the defendants. Id. In addition, such recovery cannot be founded solely on a spouse's economic loss. Cappiello v. Ragen Precision Indus. Inc., 471 A.2d 432 (App. Div. 1984).

In the instant case, Mrs. Horvath bases her loss of consortium claim on plaintiff's tort claims for negligent and intentional infliction of emotional distress or his claim for malicious interference. She also infers that as a result of the alleged discrimination and retaliation against her husband, she is entitled to relief. However, this Court has already dismissed plaintiff's tort claims for negligent and intentional infliction of emotional distress and malicious interference. In addition, the Third Circuit has held that per quod damages for loss of consortium are not recoverable under the NJLAD. Hurley, 174 F.3d at 130.

In Hurley, the Court explained that the New Jersey Appellate Division rejected a claim to recover per quod damages for loss of consortium in Catalane v. Gilian Instrument Corp., 638 A.2d 1341 (1994). Id. The Catalane court held that "the Legislature did not intend to establish a cause of action for any person other than the individual against whom the discrimination was directed." Id. at 1353 (citing N.J.S.A. § 10:5-3). In reaching this conclusion, the court reasoned that "[i]f per quod claims were to be allowed under the Act, the Legislature would have so noted in light of its careful recitation of the damages it intended to allow." Catalane, 638 A.2d at 1353. Based on Catalane, the Third Circuit predicted "that the New Jersey Supreme Court would follow Catalane and conclude that the LAD makes no provision for such an ancillary claim" and affirmed the district court's motion for summary judgment on plaintiff's loss of consortium claim.

In this case, without any remaining tort claims, Mrs. Horvath's loss of consortium claim is reliant on her husband's claim under the NJLAD. Because such a claim has been rejected by the Third Circuit and the New Jersey Appellate Division, Mrs. Horvath's claim fails as a matter of law.

VI.

For the reasons set forth above, defendant Daniel Preston's motion for summary judgment is granted on all claims. Remaining in this case are plaintiff's claim against Rimtec for discrimination under the ADEA and his claims for discrimination against Rimtec and Koeda under the NJLAD. The Court will enter an appropriate order.

JOSEPH E. IRENAS, U.S.D.J.


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