On appeal from the Division of Civil Rights, Department of Law and Public Safety, EA19JB-49392-E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Sabatino.
Vincent Palmieri appeals a May 11, 2006 final decision of the Director of the Division on Civil Rights ("the Division") dismissing his complaint that he had been wrongfully discharged by respondent, Federal Express Corporation ("FedEx"), in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. We affirm.
Palmieri worked for FedEx out of its Atlantic City facility as a package courier. At the time of the events in question, Palmieri's direct supervisor was Mary Kish. His job functions included driving a delivery truck and transporting packages to customers.
Palmieri was discharged by FedEx in March 2003 after receiving, within a one-year period, three warning letters from Kish, citing him for improper conduct as an employee. It is undisputed that FedEx has a general, company-wide policy to terminate employees who have received three warning letters within a twelve-month period. The warning letters arose out of three separate incidents.
The first warning letter was prompted by observations that Palmieri had been operating his FedEx truck with the driver's side door open, contrary to company safety policies. In June 2002 a co-worker observed Palmieri driving with his door open. The co-worker reported that to Kish, who then met with Palmieri and admonished him. About three weeks later, Kish personally observed Palmieri again driving the company truck on a busy street with the door open. This led Kish to present Palmieri with a formal warning letter the following day.
When Kish met with Palmieri to give him the first warning letter, the record reflects that Palmieri became agitated. He refused to countersign the letter, and, according to Kish, exclaimed, "there we[re] two lesbian manhaters [sic] . . . out to get him because he was a man." By this remark, Palmieri was referring to the co-worker who had first reported his open-door driving and the office's senior manager, both of whom were known to be homosexual. Palmieri regarded the women as hostile to his self-described "macho" personality.
Following this outburst, Kish directed Palmieri to remain on the premises so that she could summon another manager to witness his refusal to countersign the first warning letter. Instead, Palmieri left the building, contending that he had to go pick up his son. Several days later, on July 23, 2002, Kish served Palmieri with a second warning letter, chastising Palmieri for exhibiting "blatant disrespect toward a co-worker as well as another manager."
The third and final warning letter concerned Palmieri's leaving a COD (Cash on Delivery) package in March 2003 at a customer's residence without having the customer sign a receipt acknowledging the delivery. The customer had provided a note requesting that the package be left inside the door, with a check for the presumed amount of the delivery charges. This also violated company policies, as stated in the FedEx employee manual and reinforced with a memo on the subject that had been recently distributed in the Atlantic City office and discussed with staff, including Palmieri. When Palmieri accidentally "keyed in" the incorrect amount for the delivery, Kish and other supervisors at FedEx were alerted. After discussing the matter with upper management, Kish decided to issue a warning letter to Palmieri for this additional deviation from company protocol. Consequently, Palmieri was terminated on March 31, 2003.
Palmieri believed that Kish was motivated by discriminatory reasons in issuing the warning letters to him. He perceived that Kish was retaliating against him because he did not have a good relationship with his lesbian co-workers. Based on those perceptions, Kish filed two internal grievances with FedEx, one after the second warning letter and another after his discharge. These grievances were investigated by FedEx representatives, including personnel dispatched from its company headquarters in Tennessee, but resulted in no findings of discrimination or retaliation against Palmieri. His internal claims were thus denied.
In June 2003, Palmieri filed a complaint under the LAD with the Division. The complaint alleged that he had been the subject of gender-based retaliatory discrimination, and that the reasons given for his written reprimands and eventual discharge were pretextual. After FedEx denied these allegations of discrimination, the Division referred Palmieri's complaint to the Office of Administrative Law for a hearing before an Administrative Law Judge ("ALJ").
The ALJ conducted hearings over three days in August and November 2005. Palmieri and Kish both testified at the hearing, as well as several other FedEx employees, including the senior manager of the Atlantic City office who Palmieri had described as a lesbian. In the course of his testimony, Palmieri admitted calling the senior manager and another co-worker "lesbians" during his June 2002 ...