October 30, 2006
SARAH MCCARTHY, PLAINTIFF-APPELLANT,
THE HOME DEPOT, DENISE CLAYTON AND JOHN TUTTOLOMONDO, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-3470-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 3, 2006
Before Judges Lintner, S.L. Reisner and C.L. Miniman.
Plaintiff, Sarah McCarthy, appeals from a trial court order dismissing on summary judgment her handicap discrimination claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.
These are the most pertinent facts. McCarthy began working at a Home Depot store in Old Bridge in 1990. She worked as a refund cashier since 1998 or 1999. Because she had severe diabetes and other health problems, she required a variety of accommodations at work. There is no dispute that Home Depot accommodated her handicap by permitting her to work a permanent fixed schedule, meaning that she worked the same days and hours each week. She also was given all Mondays and Fridays off in order to attend medical appointments. This accommodation continued even after Home Depot changed its policy in 2001 to require all full-time employees to work a "fully flexible schedule" meaning that they had to be available to work any days and any shift during the week. Although some of plaintiff's fellow employees complained that she was given preferential treatment or that her fixed schedule made it difficult to arrange other employees' work schedules, plaintiff was always given the schedule she requested.
Unlike other employees, plaintiff was also permitted to sit on a stool instead of standing and was permitted to clock in and out at the front of the store, instead of at the back, because she had difficulty walking. She also took several extended sick leaves and returned to work without incident.
At plaintiff's request, she was made the "permanent opener" which meant that she reported to work at 6:00 a.m. when the store opened and was able to leave work in the afternoon, which allowed her to avoid any night driving. At her request, an employee was assigned to work with her at the refund desk beginning at 8:00 a.m., so plaintiff could take a break to eat or take medication. However, plaintiff complained that the second employee was frequently reassigned to work in other areas of the store, leaving her alone at the refund desk for hours at a time. As a result, when plaintiff needed a break she had to call a head cashier to relieve her, and plaintiff was not always able to take a break when she needed one. There is no dispute that the store was understaffed, and that other refund cashiers also had to work alone and had trouble getting time for breaks.
Home Depot's written policy concerning refunds prohibited employees from giving customers cash refunds without a receipt for the returned merchandise. Plaintiff was aware of the policy. As discussed further below, supervisors sometimes authorized the refund cashiers to make exceptions to the policy, and cashiers sometimes varied from the policy when they were extremely busy or when a contractor brought in a large number of receipts and they did not have time to match the returned merchandise to an individual receipt. In those situations they would attribute all of the returns to one receipt even if the receipt did not correspond to all of the returned merchandise.
Plaintiff was fired in October 2002, after an audit conducted by a district loss prevention manager revealed that plaintiff had failed to follow the refund policy. The loss prevention manager, Denise Clayton, did not know plaintiff and did not know of her handicap. Clayton's office was not located at the Old Bridge store, and she first met plaintiff after her investigation was completed.
Clayton conducted the investigation using computerized information that did not reveal the names of the cashiers being investigated. She based her investigation on an "exception report" from the Old Bridge store that tracked multiple returns done by the same cashier on the same day, based on the same receipt, because it was unusual for a customer to make more than one return in a single day. Using that report, Clayton would look for cash transactions, because a cashier normally cannot benefit from a credit to a customer's credit card, and for "unusual" gaps in the time between returns.
In particular, Clayton looked at two refund receipts processed on September 5, 2002, because: (1) it was a "double cash return," meaning that a cash refund was issued on both transactions; (2) there were two different customer names and signatures on the refund slips; (3) the merchandise returned in the second transaction was not listed as purchased on the original receipt; and (4) there was a three-hour gap in time between the two transactions. These transactions were conducted on the cash register assigned to plaintiff and were conducted with her log-in number.
Because the Old Bridge store used surveillance cameras to watch the cashiers, Clayton was able to correlate the time of the suspect transaction with a video taken of plaintiff at the same time. According to Clayton, the video showed plaintiff completing a refund transaction for a female customer, and then, before the next customer came up, the video showed plaintiff processing a refund without merchandise or a customer visible. Plaintiff completed the transaction, ripped off the register tape, and then helped the next customer. Clayton concluded that plaintiff "rang a transaction for merchandise that never came back into the store."
Clayton determined the identity of the cashier in the video and met with plaintiff. In her deposition, plaintiff testified that she told Clayton she did not remember the specific transaction, but she explained the circumstances under which she might give a cash refund without the merchandise present or where the merchandise being returned was not listed on the receipt presented, such as when a head cashier or someone from the special orders desk would call to tell her to process a refund, or where a customer would have a stack of receipts and a line of customers behind him and plaintiff would use one receipt to expedite the line.
She explained to Clayton that when customers came in with numerous receipts, there was no time to go through them to compare the receipts to the merchandise when she worked alone at the refunds desk; plaintiff claimed that "[i]t was an expediting time type situation, and it was just something that we did to make everyone happy." Plaintiff also considered it "possible" that she signed the name "Paul Smythe" on the second refund receipt, because sometimes a supervisor would tell her to sign a receipt if the customer forgot; plaintiff did not recall specifically when the supervisor gave her that instruction.
Clayton testified that, after introducing herself and talking about store policies and loss prevention investigations in general, she asked plaintiff for an explanation of the disputed transaction and plaintiff said that she did not remember it. According to Clayton, plaintiff first claimed that she never "rang transactions that were outside of the policy" and then gave hypothetical answers as to what could have happened, such as a manager telling her what to do or a phone call from another department. Clayton concluded that the video did not indicate any justification for making an exception to the policy.
At the end of the meeting, plaintiff signed a statement admitting that "on occasion there have been times for our better customers that can't find their receipts we have used other receipts that they have had. I realize that this is wrong, but I never felt it was this serious."
Clayton discussed the results of her meeting with store manager John Tuttolomondo. After consulting with the store's human resources manager, Tuttolomondo decided to fire plaintiff based on Clayton's conclusion that she had violated the refund policy in the suspect transaction and based on plaintiff's admission that she had violated the policy on other occasions. It is undisputed that two non-handicapped employees of the Old Bridge store were also fired in October 2002 for violations of the refund policy, based on Clayton's investigations.
In granting summary judgment, the motion judge concluded that despite the "foot and a half high of materials" that plaintiff submitted, she could not establish a hostile work environment. According to the motion judge, plaintiff admitted that she complained to others about her medical condition and that people responded with concern about why she needed to continue working. The court also noted that Home Depot admitted that accommodating plaintiff's fixed schedule was difficult "but that hardly creates [the] kind of environment that . . . was . . . severe and pervasive enough to make a reasonable person in the employee's shoes believe that their condition of employment had been altered and the working environment had become hostile and abusive." He also concluded that Home Depot had articulated a legitimate, non-discriminatory reason for plaintiff's termination and that plaintiff had not presented evidence that defendant's reason was a pretext for discrimination.
On this appeal, plaintiff raises the following issues:
POINT I: THE ENTRY OF SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS, FINDING THAT SARAH MCCARTHY WAS NOT SUBJECTED TO A HOSTILE [WORK] ENVIRONMENT, THAT SHE WAS NOT SUBJECT TO A DISCRIMINATORY DISCHARGE UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION, THAT JOHN TUTTOLOMONDO COULD NOT BE FOUND LIABLE UNDER THE AIDING AND ABETTING PROVISIONS OF THE NEW JERSEY LAW AGAINST DISCRIMINATION AND THAT THE PLAINTIFF THUS COULD NOT PROCEED WITH A NEW JERSEY LAW AGAINST DISCRIMINATION CASE WAS IN CLEAR ERROR AND REPRESENTS AN ABUSE IN DISCRETION.
A. SUMMARY JUDGMENT STANDARD.
B. THE PLAINTIFF HAS RAISED SUFFICIENT ISSUES AND MATERIAL FACT TO PRECLUDE SUMMARY JUDGMENT AS TO HER CLAIM OF DISABILITY BASED [ON] WORK PLACE HARASSMENT AGAINST DEFENDANT HOME DEPOT.
C. THE PLAINTIFF HAS RAISED SUFFICIENT ISSUES OF MATERIAL FACT TO PRECLUDE SUMMARY JUDGMENT AS TO HER CLAIM OF DISABILITY BASED DISCRIMINATORY DISCHARGE AGAINST HOME DEPOT AND DEFENDANT JOHN TUTTOLOMONDO.
1. The plaintiff has raised sufficient facts to establish a prima facie case of discriminatory discharge.
2. The plaintiff has raised sufficient facts from which a jury [could] infer that her diabetic condition made an actual difference in the defendants' decision to terminate her.
Having reviewed the record, we conclude that, except as discussed below, these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Our review of a trial court's decision to grant summary judgment is de novo, using the Brill standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-41 (1995). Accordingly, we must determine whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the disputed issues in favor of the non-moving party, or whether "the evidence is 'so one-sided that one party must prevail as a matter of law'". Id. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). Applying this standard we conclude that summary judgment was properly granted.
Plaintiff does not dispute that Home Depot made numerous significant accommodations to her handicap over a period of many years. The gist of plaintiff's hostile work environment claim is that her co-workers and some of her supervisors complained about the accommodations she was given, because those accommodations made their jobs more difficult. She also complains that some of her supervisors did not always accommodate her requests for breaks when she needed them. However, it is undisputed that other employees were often not able to take breaks when they wanted them, because the refund desk was busy and understaffed. In fact, plaintiff admitted at her deposition that the entire store was understaffed. There is no evidence that plaintiff was unable to take a break due to any hostile animus on the part of her supervisors. She also contended that some of her co-workers and supervisors questioned whether, in light of her severe health conditions, she should continue working. However, at her deposition, McCarthy admitted that the employees who made these statements were genuinely concerned about her and were not making the statements out of hostility toward her.
None of the incidents of which plaintiff complains involve the kinds of crude and hostile comments at issue in Leonard v. Metro. Life Ins. Co., 318 N.J. Super. 337 (App. Div. 1999), or Taylor v. Metzger, 152 N.J. 490 (1998). Moreover, some of the comments on which plaintiff relies were made to co-workers who did not repeat the comments to plaintiff. It is also clear from our review of the record that plaintiff's brief has mischaracterized comments by co-workers or supervisors as hostile, when the witnesses who testified to having heard the statements characterized them as expressions of concern for plaintiff's well-being. For example, one of the head cashiers whom plaintiff claims made a hostile comment, also took up a collection at work to help plaintiff financially while she was out on sick leave. While some of the head cashiers may have told plaintiff that other employees were complaining that she was given a fixed schedule while they had to work a flexible schedule, this does not rise to the level of harassment.
Moreover, plaintiff's deposition testimony does not support a conclusion that she perceived the workplace as hostile. The same head cashiers whom her complaint alleges engaged in hostile activities were described by plaintiff at her deposition as follows: "we were all friends and they cared about me. And I about them. And we could fight but we were still friends." At her deposition she also admitted that the assistant manager "definitely was a really good manager to me and a good friend and tried to take care of me."
In summary, even giving plaintiff the benefit of all favorable inferences, we cannot conclude on this record that any negative comments or scheduling problems that occurred were "severe or pervasive enough to make a . . . reasonable [handicapped person] believe that . . . the conditions of employment are altered and [her] working environment is hostile." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993) (emphasis omitted).
Next we turn to plaintiff's claim of discriminatory termination. We agree with plaintiff that she presented a prima facie case on that issue. As the Supreme Court recently held, that is not an onerous burden:
All that is necessary is that the plaintiff produce evidence showing that she was actually performing the job prior to the termination. Along with the remaining prongs of the prima facie case, that evidence is sufficient to support the conclusion that the plaintiff's claim of discrimination is plausible enough to warrant promotion to the next step of the McDonnell Douglas test. That is not a heavy burden nor was it meant to be. [Zive v. Stanley Roberts, Inc., 182 N.J. 436, 454-55 (2005).]
Here, plaintiff produced proof that she belonged to a protected class, she was performing her job, and she was fired. There appears to be no dispute that she was replaced as a cashier. In fact, at oral argument, defendant's counsel conceded that plaintiff presented a prima facie case, and plaintiff at least implicitly concedes that the employer presented a nondiscriminatory reason for her termination. The real issue is whether plaintiff presented sufficient evidence that the employer's reason was a pretext for discrimination. Plaintiff's burden on that issue was recently restated in Zive, supra:
[I]f the employer proffers a non-discriminatory reason, plaintiff does not qualify for a jury trial unless he or she can "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." [Id. at 455-56 (citation omitted).]
In that connection, "the 'plaintiff need not prove that [her membership in a protected class] was the sole or exclusive consideration' in the determination to discharge [her]; rather, [she] need only show 'by a preponderance of the evidence that it made a difference' in that decision." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999) (citation omitted).
In this case, after reviewing the record we conclude that there is no evidence from which reasonable jurors could conclude that Home Depot's explanation for firing plaintiff was a pretext to terminate her in order to avoid having to continue accommodating her handicap. There is no evidence that John Tuttolomondo, who himself is handicapped and requires some accommodation, was motivated by any discriminatory animus. In fact, Tuttolomondo had approved accommodations for plaintiff. Denise Clayton, the district loss prevention manager who brought plaintiff's violation of the rules to Tuttolomondo's attention, did not know plaintiff and did not know she was handicapped.
Moreover, two non-handicapped employees were terminated shortly before plaintiff was terminated, for the same type of offense. According to Tuttolomondo, Clayton recommended to him that plaintiff also be fired. Clayton testified that she did not directly recommend termination, but told Tuttolomondo that if his policy was to terminate employees for this type of offense, he should apply that policy uniformly.
We are also unpersuaded by plaintiff's contention that other employees did the same thing she did and were not disciplined. The other employees who testified on the issue indicated that they would only give cash refunds without merchandise being present if they were directed to do so by a supervisor, or if an employee from another department called the refund desk to confirm that a customer had returned merchandise to that department; the customer would then bring the receipt over to the refund desk and would be given the refund.
The other employees also testified that they would sometimes give cash refunds if a customer brought them the returned merchandise, but did not have an original receipt. These situations, however, involved contractors or other good customers who had a large number of receipts or a large number of items to return; in these cases, the cashier would scan the receipt with the highest amount and attribute all of the returns to that one receipt. They would also accept merchandise without a receipt, and give a cash refund, if they had a long line of customers waiting to be served and needed to expedite the refund process. Additionally, when they were very busy they might, at the direction of a supervisor, "scribble" in the name of a customer who had forgotten to sign a receipt. Plaintiff's deposition testimony on this issue was consistent with that of her co-workers.
Having viewed the video of plaintiff's activities, we conclude that a reasonable loss prevention manager could conclude that none of those exceptional situations justified plaintiff's actions. In the video, plaintiff processes what appears to be a refund for a female customer, who then leaves the refund desk. Plaintiff then appears to be processing another transaction in the absence of any merchandise being returned, and without interacting with any customer. There is no evidence on the video of any other employee speaking to plaintiff, nor did she speak on a telephone; hence there is no basis to conclude that another employee reported to her that a customer had returned merchandise to their department or that she received special instructions from a supervisor. There was no line of customers waiting to be served, such as might justify a departure from normal procedures. While the video reveals one male customer waiting at the counter, plaintiff does not begin interacting with him until she finishes the suspect transaction. In fact she appears to be ignoring him while she completes the transaction.*fn1 She then turns to the customer and begins processing his transaction.
We pause to emphasize that the issue is not whether Home Depot acted fairly, or even whether plaintiff actually violated the employer's refund policy. The issue is whether Home Depot fired plaintiff based on a belief that she violated the policy, or whether she was fired for a discriminatory reason. The record reflects ample undisputed evidence that Clayton, who did not know of plaintiff's handicap, was acting on a reasonably grounded, good faith belief that plaintiff had violated a company policy designed to prevent theft; that plaintiff admitted violating the policy on prior occasions as well; and that Clayton reported these facts to Tuttolomondo and, at least inferentially, recommended plaintiff's termination.
There is no evidence that Tuttolomondo had any discriminatory animus toward plaintiff. Hence, even if some of plaintiff's co-workers or supervisors resented the accommodations she was given, there is no evidentiary connection between their feelings and Tuttolomondo's decision to fire plaintiff. And, finally, in the same time frame that plaintiff was fired, Home Depot also fired two non-handicapped employees whom Clayton's investigation revealed to be committing similar violations of the refund policy. No reasonable jury could conclude that Home Depot's decision to fire plaintiff was a pretext for discrimination.