On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-375-95.
Before Judges Skillman, Wecker and Lesemann.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Darius Griffin is a former employee of defendant Tops Appliance City, Inc. (Tops), who was discharged for selling a big screen television set to his brother-in-law for a price below cost. Plaintiff subsequently brought this action against Tops and three of its executives, defendants Phillip M. Schmidt, Phillip J. Schoonover and Peter Huber, claiming that defendants violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and breached his employment contract by discharging him. Plaintiff also asserted a claim for defamation based on statements the individual defendants made to other Tops employees concerning the reason for plaintiff's discharge. In addition, plaintiff asserted a claim for intentional infliction of emotional distress. Plaintiff's wife, Mary Griffin, joined as a plaintiff, asserting a claim for loss of consortium.
Plaintiff, who is an African-American, was originally hired by Tops in 1984. During the course of his employment, plaintiff developed a close personal relationship with Tops' owner, Les Turchin.
In February of 1993, plaintiff was discharged for alleged sexual harassment of a female employee. Tops eventually paid nearly $100,000 to settle a sexual harassment action brought by this employee, and also incurred substantial legal fees in defending the action.
After plaintiff's first discharge from Tops, Turchin assisted him in obtaining new employment. Several months later, over the objections of Tops' managers, Turchin insisted that plaintiff be re-hired. As a condition of his re-hiring, plaintiff was required to see a psychologist and sign an undated letter of resignation, and Tops' managers considered him to be on probation.
Less than six months after his rehiring, plaintiff participated in the sale of a television set to his brother-in- law which resulted in his second discharge. On November 23, 1994, the brother-in-law came to the Tops store in Secaucus to buy a big-screen television. Plaintiff, who was manager of the TV and Video Department, referred his brother-in-law to a salesman who worked under him. This salesman sold plaintiff's brother-in-law a floor model of a big-screen television set. Plaintiff established a $1,900 sales price for the television, which was more than $500 below cost.
A few days after this sale, the Director of the Shipping and Receiving Department informed plaintiff that Tops could not ship the floor model to his brother-in-law because he lived out-of- state and Tops could not insure a product which had been removed from its original packaging for out-of-state shipment. Plaintiff then instructed the Director of Shipping and Receiving to substitute a new television set for the floor model and to ship it to his brother-in-law, without any increase in price. When Tops' managers found out about this sale, they discharged plaintiff for a second time. According to plaintiff, Schoonover said that to obtain Turchin's approval for the discharge, he told him that plaintiff had "stole[n] from the company." The defendants also filed criminal charges against plaintiff, which were still pending when this case was tried.
At trial, plaintiff testified that he did not extend any "special treatment" to his brother-in-law, and that under similar circumstances he would have substituted a brand new television for the floor model at no additional price for any other customer. Plaintiff also testified that Tops frequently sold items below cost. However, plaintiff admitted that at the time of the sale to his brother-in-law, he was aware of another employee who had been discharged for selling below cost.
In addition, the store manager under whom plaintiff worked testified on plaintiff's behalf that because plaintiff's brother-in-law purchased a service warranty contract in addition to the television, Tops actually made a small profit on the overall transaction.*fn1 However, the store manager acknowledged that plaintiff violated store policy by establishing the price at which the television was sold to his brother-in-law.
At the close of plaintiffs' case, the trial court granted defendants' motion to dismiss Mrs. Griffin's loss of consortium claim and plaintiff's breach of contract claim. The court denied defendants' motion to dismiss plaintiff's LAD and defamation claims. The court did not make any explicit ruling concerning plaintiff's claim for intentional infliction of emotional distress.
At the conclusion of the trial, the court instructed the jury regarding plaintiffs' LAD and defamation claims. Although the court gave the jury no instructions regarding intentional infliction of emotional distress, it submitted a verdict sheet which set forth questions regarding not only plaintiff's LAD and ...