Before Judges Petrella, Lintner and Bilder. On appeal from the
Superior Court of New Jersey, Law Division, Hudson County, L- 4986-99,
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
These two cases, which we consolidate for the purposes of this opinion, arise from an order for partial summary judgment barring plaintiff from receiving any damages, including compensatory and punitive damages, on any of his claims from March 14, 1997 forward, and a consent order dismissing plaintiff's remaining claims with prejudice followed by an order dismissing a subsequently filed complaint seeking additional but similar damages.
On May 11, 1999, plaintiff, Calvin Taylor, filed a complaint seeking compensatory damages for emotional distress, humiliation and embarrassment, and economic loss, as well as punitive damages and attorneys fees. The complaint alleged that his employer, International Maytex Tank Terminal Corporation - Bayonne (IMTT), and certain named and unnamed supervisors violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by: (1) subjecting him to unfair racially oriented treatment; (2) creating a hostile work environment; and (3) failing to promote him and pay him on an equal footing with others "who were not members of the black race." The complaint also alleged that defendants violated his implied employment contract and covenant of good faith and fair dealing by failing to promote and pay him in a manner consistent with similarly situated non-black employees. Finally, the complaint alleged that defendants made false, defamatory and misleading statements concerning plaintiff's personal, professional and business reputation, and intentionally and negligently caused plaintiff emotional distress. Defendants answered and, after almost two years of discovery, moved for partial summary judgment as to damages.
On June 8, 2001, the Law Division judge filed a written opinion barring plaintiff from seeking at the time of trial "any economic recovery" and damages for reinstatement from March 14, 1997 forward. On the same date, the judge signed an order barring plaintiff from being awarded "any damages for front pay, back pay, lost wages, fringe benefits, punitive or compensatory damages or any other legal or equitable damages" from March 14, 1997 forward. On August 3, 2001, the judge denied plaintiff's motion for reconsideration and, in the alternative, to certify the June 8 order as final. Prior to trial, the parties entered a Consent Order of Dismissal, which was approved by the motion judge on September 5, 2001. Plaintiff filed his notice of appeal on October 2, 2001.
Meanwhile, on June 28, 2001, plaintiff filed a second action that, except for the allegation that defendants discriminated against him in retaliation for filing his first complaint, sought similar damages and alleged essentially the same acts of discrimination, negligence, defamation, and breach of contract that had been asserted in his earlier complaint. Another Law Division judge granted defendants' motion on January 11, 2002, dismissing plaintiff's second complaint with prejudice based on the entire controversy doctrine. Plaintiff appealed the dismissal of his second complaint on February 22, 2002.
We agree with the motion judge's opinion barring plaintiff from seeking "economic" damages, namely damages for front pay, back pay, lost wages, fringe benefits, and losses incidental to alleged demotion or lost opportunity for promotion, from March 14, 1997 forward. However, we modify the order of June 8, 2001, to comport with the judge's written opinion and remand plaintiff's claims for non-economic and punitive damages for further proceedings. Because plaintiff's punitive and non-economic damage claims remain viable, plaintiff's appeal of the order dismissing the second complaint, to the extent that it sought punitive and non- economic damages, is moot. We, therefore, set aside the January 11, 2002 order and remand for further proceedings.
We restate the relevant facts. IMTT operates a liquid bulk storage facility in the City of Bayonne on approximately 550 acres. The site has about 640 storage tanks, some of which contain hazardous materials. Plaintiff began working for IMTT in April 1993, attaining the position of Assistant Shift Supervisor by February 1997. On February 21 of that year, plaintiff, his shift supervisor, Tim Shaffery, and maintenance supervisor, Lynne Parry, were asked to check two pumps after a problem was reported. On February 26, 1997, IMTT discovered that tank 5214 overflowed, resulting in a spill of approximately 19,200 gallons of methyl tertiary butyl ether (MTBE), a highly toxic gasoline additive. The spill prompted a response from the Bayonne fire department, a hazardous materials unit, and a mobile decontamination unit, and was formally reported to the State Department of Environmental Protection. A preliminary investigation discovered that the 504 valve had been left "wide open," thus precipitating the spill. The clean-up cost for the spill was approximately $300,000.
The morning after the spill, IMTT's Operations Manager, Albert Parlato, met with plaintiff, Shaffery and Assistant Operations Manager Bill Seitter. Parlato asked plaintiff and Shaffery whether the pump test they conducted the previous Friday could have had anything to do with valve 504 being left open. After checking the log book, both plaintiff and Shaffery responded that they were certain they did not use the 504 valve for the pump test. Plaintiff later advised Seitter that he and Shaffery went back to tank 5214 to retrace their steps and that they were positive they did not use valve 504 during the pump test.
Despite their denials, Parlato concluded the following in a letter sent to plaintiff on March 14, 1997:
I am convinced by all the information at hand that the 504 valve was left open by you and Timmy when you performed the pump test on February 21, 1997, even though you claim you did not use the 504 line/valve. I can only hope that you really don't remember with any certainty due to the lapse in time.
Parlato further advised plaintiff that he was suspended for four days without pay and demoted to the position of Audit Gauger with a corresponding decrease in salary from $46,150 to $38,000. In July 1997, Dennis Barbarise, Director of Administration and second in command at IMTT, called plaintiff into his office to ask about his involvement in the February spill. Plaintiff admitted that "in doing the pump test of tank 5214 on February 21, 1997, [he] unintentionally and inadvertently failed to check the position of the #504 valve." Shortly after this conversation, Barbarise promoted plaintiff to the position of Maintenance Supervisor.
On October 5, 1999, plaintiff left IMTT, claiming he could no longer tolerate the racially hostile work environment. On December 22, 1999, plaintiff admitted at his deposition that he and Shaffery had left the 504 valve open during the pump test and agreed to lie about their involvement in the subsequent overflow:
Q. [I]s there a reason why Mr. Parlato didn't know what you've told me here today, namely, you did use [valve ...