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Tibaldi v. BASF Corp.

September 5, 2008

JOSEPH TIBALDI, PLAINTIFF-APPELLANT,
v.
BASF CORPORATION AND DAVID KERSHAW, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Passaic County, Docket No. L-4748-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 25, 2008

Before Judges Stern, A. A. Rodríguez and Collester.

Joseph Tibaldi, a fourteen-year employee of BASF Corporation (BASF), was terminated from his employment for allegedly stealing food from the cafeteria. He sued BASF and David Kershaw, his direct supervisor, alleging that he was terminated in an effort to deprive him of disability leave and retirement benefits. Tibaldi's cause of action was based on a violation of the New Jersey Law Against Discrimination (LAD)*fn1 and common law claims of breach of contract and promissory estoppel. BASF and Kershaw moved for summary judgment. Following a hearing, the judge granted the motion as to Tibaldi's LAD claims and reserved judgment on the common law claims. The judge found the evidence insufficient for a reasonable fact finder to conclude that BASF's articulated reason, theft, was mere pretext under the LAD.

Tibaldi moved for reconsideration. Before the motion was decided, the parties entered into a stipulation which provided, in relevant part, that should the court deny Tibaldi's motion for reconsideration, Tibaldi would voluntarily dismiss his contract and promissory estoppel claims without prejudice. It further provided that should Tibaldi appeal unsuccessfully, the dismissals without prejudice would become dismissals with prejudice. The judge denied the motion for reconsideration.

Tibaldi filed this appeal. We affirm.

Tibaldi began his employment with BASF in 1989 in the information technology and finance departments. By all accounts, Tibaldi was an excellent employee up until the incidents which resulted in his termination.

Prior to and throughout his employment with BASF, Tibaldi suffered from a number of medical conditions, including chronic arthritis which caused significant deformity of his feet. He was also born with cerebral palsy. BASF was aware of these conditions when it hired Tibaldi.

In a deposition, Tibaldi testified that in late 2002, he confided in Kershaw that his arthritis was worsening. For that reason, he would soon take short-term disability (STD), then seek long-term disability (LTD) and eventually retirement. Kershaw asked him to delay his retirement to finish the project on which he was then working. Tibaldi agreed and forwent applying for disability benefits in 2002. He continued to work in "constant pain." But for Kershaw's plea, Tibaldi would have applied for STD and stayed home with his wife, who was diagnosed with cancer.

Tibaldi admitted during his deposition that BASF never discriminated against him prior to his termination. In fact, during his employment, BASF accommodated Tibaldi in a number of ways, including: purchasing Tibaldi a motorized scooter for use during work hours; providing a reserved parking space close to the building's entrance; providing security guards in the parking lot to escort Tibaldi to his car; and allowing time off of work to attend to medical issues.

In 1999, Kershaw became Tibaldi's direct supervisor. According to Tibaldi's deposition testimony, the two were more than co-workers, but "very close" friends. Kershaw was also accommodating to Tibaldi's disabilities, allowing him to leave work early or work at home during inclement weather and personally assisting him up and down the stairs when necessary.

BASF has a written Code of Conduct. It provides that any violation of the Code may result in termination of employment. There is no dispute that the Code prohibits theft of food from the cafeteria.

In January 2003, Sodexho, the company which operates the BASF cafeteria, informed BASF that its employees observed Tibaldi misrepresenting food items to the cashier and not paying for certain food items. Lisa Botemps, a cashier, certified that Tibaldi misrepresented to her what items he had in his basket. Tibaldi purchased what he said was a plain bagel, but the bagel actually had peanut butter on it, which calls for an additional charge. This went on for a couple of weeks. Botemps also witnessed an incident where Tibaldi took ...


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