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Zanes v. Fairfield Communities

July 17, 2008

WILLIAM ZANES, PLAINTIFF,
v.
FAIRFIELD COMMUNITIES, INC.; CENDANT CORPORATION; AND MICHAEL WALKER, DEFENDANTS.



The opinion of the court was delivered by: Irenas, Senior District Judge

OPINION

This is a retaliatory discharge suit filed by William "Bill" Zanes, against his former employer, Fairfield Communities, Inc. ("Fairfield"), disputed former employer, Cendant Corporation ("Cendant"), and Michael Walker, his former supervisor. Zanes asserts that he was wrongfully transferred and then terminated from his position after he complained to management about his employer's alleged racially discriminatory marketing practices.*fn1 He primarily asserts claims under New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et. seq., and Law Against Discrimination ("LAD"), N.J.S.A. 10-5:1 et. seq., and also asserts a defamation claim. Defendants move for summary judgment. For the reasons stated herein, the Motion will be granted in part and denied in part.

I.

Plaintiff Zanes was employed as a "Commission Marketing Professional," or "CMP," with Fairfield for approximately one year-- from April 2003, to May 14, 2004, when he was fired. (Zanes Dep. p. 31-32) Working inside various Trump properties in Atlantic City, Zanes was employed to market Fairfield timeshare vacations by recruiting potential customers.*fn2 (Id. at 55) Zanes' job was to persuade potential customers to take a tour of the Fairfield resort to learn about available timeshares. (Id.)

During the first four months of Zanes' employment, all CMPs rotated sites, working at either Trump Taj Mahal, Trump Plaza, or Trump Marina, depending on the shift to which they were assigned. (Zanes Dep. p. 45, 49, 66) Then Fairfield changed the site/shift assignment process, which resulted in Zanes working most of his shifts at the Taj Mahal. (Id. at 66) Zanes was pleased with the change in policy, because he had the best success rate when he worked at the Taj Mahal, as opposed to the other locations. (Id. at 50)*fn3

During the course of Zanes' employment, Fairfield held various training sessions and meetings where management instructed CMPs (including Zanes) about people whom management determined to be the most desirable to solicit and how to describe the tour. At various meetings and training sessions, at least three management personnel instructed Fairfield employees not to approach people of Asian or Indian descent, single males, non-U.S. citizens, and people who did not speak "perfect English." (Zanes Dep. p. 174-75, 187; Draughn Dep. p. 137-39) Specifically, Zanes testified that his supervisor told him that, at Defendant Walker's direction,*fn4 Zanes would not be paid for tours he booked if the potential customers were Asian or Indian. (Id. at 174) One of Zanes' supervisors, Janice Draughn, also testified,

[W]e were told not to market Asians but I said well, hey, if they qualify, it's not in paper. If they are a couple and they got a credit card and meet the qualifications and it doesn't matter if they got a dot on their head or not. . . . it was like I'm not going to discriminate. . . . What they called dot heads came in, if they have a credit card, if they meet the other qualifications, then let them turn it around at the registration desk. (Draughn Dep. p. 85) Draughn further stated that she was instructed by management to avoid marketing timeshares to single men and non-U.S. citizens. (Id. p. 83)

Zanes claims that he was instructed to lie to people who did not meet the company's qualifications to participate in the tour,*fn5 by telling them that the tour was completely full. (Id. p. 158-59) Zanes felt these instructions were "wrong" and objected at the meetings saying, "I feel it's wrong and I'm not going to do it." (Id. at 168)*fn6 Elaborating on what he meant, Zanes explained at his deposition,

I think that everyone should have an equal chance to buy a timeshare, no matter what country you're from or your language, or whether you're black, white, Asian, Hispanic. I thought it was wrong to say there were certain ethnicity [sic], or if I booked them I wouldn't get paid for it. And honestly, I think it's wrong, lying to people. (Id. at 163)

Zanes believes that Walker "wanted to find a way to get rid of [him]" because of his objections. (Zanes Dep. p. 71-72, 126-27) Specifically, Zanes believes that he was transferred from his post at the Taj Mahal and then later fired because of his objections.

At the end of February 2004, Zanes was rotated from his post at the Taj Mahal to a post at the Trump Plaza. (Stmnt of Undisp. Facts, ¶ 5) According to Zanes, the move was an undesirable change in his employment conditions because it was commonly known among the CMPs and Fairfield management that CMPs stationed at the Taj Mahal had the highest success rate with attracting qualified consumers. (Zanes Dep. p. 50-51)

Approximately three months later, in May, Walker received from the Trump organization a copy of an e-mail complaint which Defendants assert led to Zanes' termination. A patron of the Plaza casino e-mailed the Trump Plaza stating that a "representative of a timeshare company" gave her and her husband a "pitch" which included a "story" about "a black woman . . . who cheated the system." (Walker Cert. Ex. A) The patron said she found the story particularly offensive because she is "biracial." (Id.) Trying to identify the employee who made the comments, she stated, "I believe his name was Bob. He was working in your casino last Saturday afternoon." (Id.)*fn7

Zanes denies that he was the employee identified in the e-mail, although the Fairfield schedule for that day indicates that Zanes was the only male employee working at that location in the Plaza the entire day. (Bessinger Cert. Ex. I; Draughn Dep. p. 31-34)

According to Walker, "a Vice President of Trump" faxed him a copy of the e-mail complaint on May 14, 2004. (Walker Cert. ¶ 3, 5) After reading the e-mail, determining that Zanes was the only male employee working at that location on that date, and examining Zanes' personnel file,*fn8 Walker decided to fire Zanes. (Id. at ¶ 5)

Zanes testified that on May 14, 2004, he was called into his immediate supervisor's office and told, "'Mike Walker is terminating you.'" (Zanes Dep. p. 130, 134) When Zanes asked why he was being fired, he was told about the e-mail complaint. (Id. at 134)

This suit followed. Zanes' Amended Complaint primarily asserts retaliatory discharge claims under New Jersey's Conscientious Employee Protection Act ("CEPA") (Count 1) and New Jersey's Law Against Discrimination ("LAD") (Count 4). In addition to these claims, the Amended Complaint also asserts claims of defamation (Counts 2 and 5),*fn9 and vicarious liability of Defendants Fairfield and Cendant for the allegedly wrongful actions of Zanes' supervisors (Count 3).*fn10

II.

"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a ...


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