On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1843-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Weissbard, S. L. Reisner and Gilroy.
Plaintiff Charles Stephens appeals from the October 16, 2006, order granting summary judgment to defendants, Lowe's Company, Inc. (Lowe's), and Ken Zrowka, Lowe's Regional Human Resources Manager, dismissing plaintiff's single-count complaint, alleging wrongful discharge pursuant to the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. We affirm.
Plaintiff was hired by Lowe's in 2002 as the manager of its Mt. Holly store. Prior to July 2003, plaintiff became aware that the store was experiencing an inventory loss of carpet padding material. Plaintiff asked members of the Loss Prevention Department to investigate the issue. The Loss Prevention Department determined that the shortage was caused by internal theft by Steven Mercado, the store's Installed Sales Coordinator. Mercado was terminated from employment on August 12, 2003. On or about December 29, 2003, Mercado filed a complaint against Lowe's and its District Loss Prevention Manager, alleging among other matters, that he was wrongfully terminated from employment because of his age, in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49.
On April 2, 2004, Lowe's corporate office received an internal complaint from one of its employees, John Waldruff, expressing frustration with his demotion and complaining about plaintiff's criticism of him spending too much time in the office of Anne Siwula, the Human Resources Manager of the Mt. Holly store. The District Human Resources Manager, Sherry Shell, conducted an investigation of Waldruff's complaint, and in doing so spoke with Siwula. During her interview with Shell, Siwula explained her work-related relationship with Waldruff and advised Shell that not only had plaintiff made inappropriate remarks to her about Waldruff, but that he had also made other sexually inappropriate remarks to her. As a result of the interview, Shell asked Siwula to provide a written statement regarding plaintiff's conduct. Siwula complied and prepared an eight-page, handwritten statement, setting forth her allegations against plaintiff.
In the handwritten statement, Siwula stated that on one occasion, plaintiff asked if she and her boyfriend "have sex together." On another occasion, when plaintiff confronted Siwula about her relationship with Waldruff, after Siwula told plaintiff that she and Waldruff were merely friends and that she was counseling him on career-related issues, plaintiff stated, "[b]esides Annie[,] I thought that the only person who is supposed to have sex with you in this store was me[.] No . . . just kidding." On a third occasion when plaintiff and Siwula discussed an upcoming corporate meeting that was to take place in Atlantic City, Siwula mentioned that she would like to go, and plaintiff responded, "he would love to take me but then we would have to sleep in the same bed and that he did not think that his wife or [Siwula's boyfriend] would like it." On a fourth occasion, when plaintiff and Siwula were discussing Lowe's No-Fraternization Policy, which Siwula told plaintiff she supported, plaintiff said, "Never say never. You might meet someone at this store and fall in love with [him] and then go back to a hotel room and have the most passionate night of your life[.]" Siwula's statement also contained several other sexually inappropriate remarks that she asserted were made by plaintiff.
When confronted by Shell concerning Siwula's allegations, plaintiff sent Shell an e-mail on April 7, 2004, stating that he had no idea what Siwula was talking about, but that he would be "circumspect" concerning what he might discuss with her in the future. In closing the e-mail, plaintiff stated:
I want to make clear that at no time have I ever made a pass at Ms. Siwula, nor have I ever articulated any sexual innuendoes about her or around her. I have never asked her out or made any queries about her personal life. I have had a professional relationship with her since she arrived at our store. Nothing more. Nothing less.
After receiving conflicting statements from Siwula and plaintiff, Shell, Zrowka, and Jon Waddingham,*fn1 conducted an interview with plaintiff. During the interview, plaintiff not only denied Siwula's allegations, but also denied having spoken with her concerning his personal life. Following plaintiff's interview, Zrowka and Shell then interviewed Siwula concerning the contents of her written statement. Siwula advised Shell and Zrowka that her statement was accurate.
In determining which party's version of events was more credible, plaintiff's or Siwula's, Zrowka relied heavily on the demeanor of the parties. As to plaintiff, Zrowka stated that:
During the interview, [plaintiff] was very defensive; physically agitated; very short; very trite with his answers. He was answering questions before the [questions] were completed; giving answers such as "never" and "no." When asked questions about conversations he may have had which related to things such as his work life, as well as personal life, his overall demeanor during that interview at many times appeared angered; appeared physically upset; appeared to be surprised at some of the information presented to him.
Immediately following the interview, we received notification he had phoned one of his former co-workers asking to cover for him and referencing the New Year's Eve dinner in which statements were allegedly made regarding [a female co-employee's] behavior.
That behavior was very strongly considered prior to making a decision to terminate [plaintiff].
He contradicted himself in the interview so there was no need to go back and validate ...