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Gimello v. Costco Wholesale Corp.

December 8, 2008

ROCCO F. GIMELLO, PLAINTIFF-APPELLANT,
v.
COSTCO WHOLESALE CORP. AND DENNIS O'KEEFE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-0016-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 23, 2008

Before Judges Winkelstein, Fuentes and Gilroy.

Plaintiff, a butcher and former employee of defendant Costco Wholesale Corporation, appeals from the trial court's October 22, 2007 summary judgment dismissing his claims for retaliation under the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to-8, and under Woolley v. Hoffman-La Roche, Inc., 99 N.J. 284, modified by, 101 N.J. 10 (1985). Defendant Dennis O'Keefe was the manager of the meat department, and plaintiff's direct supervisor. Plaintiff asserted that defendants retaliated against him based on his complaints regarding Costco's meat testing and packaging practices. He further claimed that Costco breached the terms of its employment manual by failing to prevent him from being discriminated against and harassed, and for failing to properly investigate and remedy his complaints about that treatment.*fn1 We affirm.

On February 10, 2005, Costco hired plaintiff as a meat cutter in its Mount Laurel store. He was a "probationary employee" during his first ninety days of employment; his continued employment was dependent on a satisfactory evaluation at the end of the ninety-day period.

At the time he was hired, plaintiff received Costco's employee agreement, which provides for a progressive form of discipline for employee violations of Costco's rules. For the first violation within a six-month period employees receive a first documented counseling notice; for a second violation of the same or similar nature within a six-month period-a second counseling notice; and for a third violation of the same or similar nature within a six-month period-employment is terminated. The agreement also stated that "employees should be able to enjoy a work environment free from all forms of unlawful employment discrimination," that "Costco prohibits unlawful harassment," and "[n]o employee will suffer reprisals for reporting incidents of unlawful employment discrimination."

On March 7, 2005, plaintiff was given a thirty-day progress review in accordance with Costco policy. O'Keefe reported that plaintiff was "a good asset to the department," but required improvement in some areas.

About a month later, plaintiff wrote a letter to the Mount Laurel General Warehouse Manager, Frank LaMattina, in which he claimed that O'Keefe continually harassed him and created a hostile work environment by singling him out, yelling at him in front of other employees, and blaming him for the mistakes made within the department. In his letter, plaintiff did not complain about meat testing and packaging practices.

Two days later, plaintiff met with O'Keefe, LaMattina and Al Collins, the assistant manager, to discuss plaintiff's allegations of harassment. LaMattina concluded that there was "a communication problem and not harassment." He further said that O'Keefe, as the department manager, "has the right to correct or point out [plaintiff's] mistakes."

On April 15, 2005, plaintiff received a sixty-day probationary review, in which O'Keefe expressed the same concern over plaintiff's meat cutting skills that he raised in his thirty-day review; ultimately, though, he gave plaintiff satisfactory marks for his performance. Plaintiff wrote in the "Employee's Comments" section of the review form that he believed O'Keefe's criticism was a "personal attack from the meat manager because of my harassment and disparate treatment and hostile work environment complaint." Plaintiff wrote that he would contact the Equal Employment Opportunity Commission (EEOC) if necessary.

Plaintiff received his final probationary review on May 20, 2005. O'Keefe noted that plaintiff improved his meat cutting skills, and gave him another satisfactory review, recommending him for further employment.

On June 10, 2005, plaintiff received an "employee counseling notice" for not having performed a "fat test" that he had been told to perform. Plaintiff acknowledged that he had performed a "yield test" instead of a fat test; he believed that O'Keefe asked him to perform a yield test. Plaintiff complained that the counseling notice was another "personal attack from the meat manager in the form of harassment and a hostile work environment."

On June 15, 2005, plaintiff hand-delivered a letter to defendants' human resource office complaining that O'Keefe continued to harass him on a daily basis by singling him out and blaming him for every mistake. Plaintiff did not accuse O'Keefe or any other ...


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