September 5, 2008
JOSEPH TIBALDI, PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 spaghetti and meatballs and only told the cashier he had spaghetti. The items allegedly stolen by Tibaldi ranged in value from $0.35 to $1.25.
Elizabeth Roman, Director of Human Resources, became aware of this pattern and contacted Kershaw. Kershaw believed additional confirmation was necessary. He had BASF security conduct surveillance of Tibaldi to confirm that he was in fact committing theft. A surveillance video from January 27-30, 2003 confirmed that Tibaldi continued to not pay for all of his purchases at the cafeteria. Roman decided that absent some compelling reason from Tibaldi, BASF had no choice but to terminate his employment.
Roman consulted with BASF's legal department and her supervisor, BASF Senior Vice President Norman Maas, about her recommendation to fire Tibaldi. She also consulted with Roland DeLoach, BASF's Equal Employment Opportunity Manager. Maas and DeLoach recommended terminating Tibaldi. Kershaw agreed as well, but stated later at his deposition that the decision was not ultimately his to make. No one ever sought out Tibaldi to explain these alleged thefts, nor was he ever given a warning.
On February 3, 2003, Kershaw and Roman met with Tibaldi and terminated his employment. Roman told Tibaldi that he remained eligible for medical retiree benefits.
Tibaldi applied for, and received STD benefits for six months. He did not apply for unemployment benefits. In May 2003, Tibaldi began receiving a retirement pension. At the time of his termination, Tibaldi was making in excess of $100,000 per year, plus fringe benefits which typically equaled 30% of his annual salary.
Tibaldi denied all allegations of theft. He said that whenever he purchased items he relied on the cashier to accurately record what he had taken. In his deposition, Tibaldi stated that if he did steal anything it was unintentional and was willing to pay restitution. Tibaldi believed that Kershaw was under increasing pressure to minimize staff and he was a victim of downsizing. He believes that BASF singled him out for termination not because he is disabled, but because of his intention to go out on disability leave and receive benefits.
Based on Tibaldi's expert's report, terminating Tibaldi saved BASF in excess of $450,000.
Tibaldi contends that the judge erred by misapplying the three-prong McDonnell Douglas*fn2 analysis to the facts of this case. Essentially, he argues that the judge ended his analysis after the second prong and did not consider the third prong, an error which would require reversal. We disagree.
We note at the outset of the analysis that an allegation of discrimination based on a motive to deprive employee benefits is preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. §§ 1001-1461. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 482, 112 L.Ed. 2d 474, 483 (1990) (affirming summary judgment where employee based his state-law discrimination claim on the employer's alleged motive to avoid making pension contributions); Wood v. Prudential Ins. Co., 207 F.3d 674, 676-79 (3rd Cir.) (holding New Jersey LAD claim preempted by ERISA since LAD claim was based on termination to deprive employee of ERISA-protected benefits), cert. denied, 531 U.S. 927, 121 S.Ct. 305, 148 L.Ed. 2d 245 (2000).
Tibaldi did not allege an ERISA violation in his complaint. It would therefore seem that to the extent Tibaldi's theory is that he was wrongfully terminated to interfere with or deny him his benefits, that claim is preempted by federal law and not a proper basis for a state LAD claim.
Discriminatory intent in LAD cases is critical. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005). This presents a challenge for plaintiffs, since rarely is there "'eyewitness' testimony as to the employer's mental processes." U.S.P.S. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed. 2d 403, 411 (1983). To combat that challenge, New Jersey has adopted the test set forth in McDonnell Douglas. Zive, supra, 182 N.J. at 447.
First, the plaintiff must make out a prima facie case of discrimination, which requires a showing that: 1) plaintiff is a member of a protected class; 2) plaintiff was performing the job consistent with the employer's expectations; 3) plaintiff suffered an adverse employment action; and 4) others not within the protected class did not suffer similar adverse employment actions. Maher v. N.J. Transit Rail Ops. Inc., 125 N.J. 455, 480-81 (1991); El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005). Our Supreme Court has recognized that this burden is "rather modest." Zive, supra, 182 N.J. at 447 (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3rd Cir. 1996)). Once a plaintiff makes out a prima facie case, a presumption of discrimination is created. Id. at 449 (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed. 2d 957, 967 (1978)).
The burden then switches to the defendant to put forth "a legitimate, nondiscriminatory reason for the employer's action." Ibid. At this stage, there is no credibility or truth assessment. All the employer is required to show is that there was a legitimate explanation for its action. McDonnell Douglas, supra, 411 U.S. at 802-05, 93 S.Ct. at 1824-25, 36 L.Ed. 2d at 677-79. The employer "must come forward with admissible evidence of a legitimate, non-discriminatory reason for its rejection of the employee." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210 (1999). When the employer does produce such evidence, the presumption of discrimination is overcome. Id. at 211.
The burden then shifts back to the plaintiff to establish "by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Zive, supra, 182 N.J. at 449. "To prove pretext, however, a plaintiff must do more than simply show that the employer's reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent." Viscik v. Fowler Corp., 173 N.J. 1, 14 (2002). The employee does not qualify for a jury trial unless he or she can "point to some evidence, direct or circumstantial, from which a fact finder 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."
[Zive, supra, 182 N.J. at 455-56 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).]
"To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes, supra, 32 F.3d at 765. If the plaintiff fails to meet this obligation, the defendant is entitled to summary judgment.
Zive, supra, 182 N.J. at 456.
Here, BASF and Kershaw concede for purposes of summary judgment the first prong, i.e., that Tibaldi makes out a prima facie case. Tibaldi in turn concedes the second prong, that the reason articulated by BASF, that Tibaldi committed theft and violated the Code, is legitimate and non-discriminatory. Thus, we focus our inquiry on the third prong, i.e., whether BASF's articulated reason was a mere pretext for discrimination.
We conclude that Tibaldi put forth no evidence upon which a fact finder could reasonably disbelieve BASF's reason for terminating him, or believe a discriminatory reason was more likely than not a factor in the decision. In short, there is no evidence that Kershaw or any other BASF employee or supervisor had any discriminatory animus towards Tibaldi or that such animus motivated his termination.
Thus, pursuant to the summary judgment standard, BASF and Kershaw were entitled to summary judgment on the third prong.
R. 4:46-2(c); Brill v. Guardian Life Ins. Co., 142 N.J. 520, 528-29 (1995).
Tibaldi continues to insist that he in fact did not steal. That is not the issue. Nor is it whether the employer acted fairly. The issue is whether the employer fired plaintiff based on a belief that the employer violated its policy, or because the employer had a discriminatory reason.
Tibaldi also contends that BASF and Kershaw's investigation and decision-making process "was so flawed, incompetent, and unreasonable as to discredit defendants' articulated grounds and compel an inference of pretext." We disagree. This is an embellishment of the previous argument. We reiterate that the burden is on Tibaldi to present enough evidence from which the factfinder could conclude the reasons offered by BASF and Kershaw were pretext. The employer's burden ends if it meets the second McDonnell Douglas prong. Here, because Tibaldi failed to come forward with evidence which would cause a reasonable fact finder to disbelieve BASF's reason, summary judgment was the appropriate disposition.