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Gimello v. Costco Wholesale Corp.


December 8, 2008


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

Per curiam.


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 employee of engaging in illegal meat testing or packaging practices.

Also in June 2005, plaintiff scheduled an appointment with the EEOC for the following month concerning his employment discrimination charges. He showed the appointment form to O'Keefe.

On July 16, 2005, plaintiff received a second employee counseling notice, for not performing another fat test. When confronted about the test by O'Keefe, plaintiff said he could not remember whether he had performed the test, but "because Costco regularly cheats on its fat tests, it did not matter that the test had not actually been performed." Plaintiff again wrote comments on the counseling notice that O'Keefe continued to harass him and created a hostile work environment. Plaintiff received a three-day suspension for the violation.

On July 20, 2005, the day before plaintiff was scheduled to return to work, Collins informed him that he was terminated for failure to perform the fat test. The termination notice stated: "[Plaintiff] did not follow company policy. This caused Costco to sell product with a label that was possibly inaccurate." The final decision to terminate plaintiff was made by Yoram Rubanenko, Costco's Vice President and Regional Operations Manager. At the time of his decision, Rubanenko had no knowledge of plaintiff's complaints of illegal meat testing and packaging practices.

Plaintiff had complained twice about Costco's meat packing practices, but he did not file a formal complaint. Rather, he informally voiced his concerns to LaMattina as he "walked the floor at night," stating that there was "green," "rewrapped product" that "shouldn't be out in the [meat] case." Plaintiff testified that LaMattina acknowledged it was against company policy to rewrap meat, and "[i]f anyone does that, they're going to lose their job." Plaintiff replied that he did not "want to see anyone lose their job. I'm just telling you what happened."

Rubanenko testified that LaMattina told him that plaintiff complained that he was being "picked on," and that LaMattina "look[ed] into it," and had concluded "it was a bunch of minor things and that he had sat down with the different parties and we were moving forward." Rubanenko did not remember being told that plaintiff complained about the meat cutting and meat testing practices. Collins also testified that LaMattina never told him of plaintiff's complaints regarding O'Keefe's meat testing and packaging practices. One month prior to plaintiff's termination, LaMattina was killed in an automobile accident.

Against these facts, we review the trial court's grant of summary judgment. In doing so, we employ the same standard that governs the trial court's determination. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). "[W]hen the evidence'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). Applying these principles here, we first address plaintiff's Woolley claim.

Under Woolley, supra, 99 N.J. 284, an employment manual may be construed as a contract. Monroe v. Host Marriot Servs., Corp., 999 F. Supp. 599, 605 (D.N.J. 1998). New Jersey law, however, does not provide a separate breach of contract cause of action on the basis of generalized anti-discrimination language in an employee handbook where the alleged discrimination would be in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to-49, Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 309 (3d Cir.), cert. denied, 543 U.S. 814, 125 S.Ct. 62, 160 L.Ed. 2d 19 (2004), or, as here in violation of CEPA. Such a breach of contract cause of action would add nothing to the statutory cause of action. Id. Further, general, cryptic company credo related to an anti-discrimination policy does not create an enforceable contract. Flizack v. Good News Home for Women, 346 N.J. Super. 150, 164 (App. Div. 2001).

Here, plaintiff alleged that defendants were contractually obligated to prevent his being harassed and discriminated against, and to investigate those claims of harassment and discrimination in accordance with the provisions of the employment manual. Plaintiff's Woolley allegations were, as the trial court correctly observed, duplicative of his CEPA claim. And CEPA expressly provides that a plaintiff who institutes a CEPA claim waives his or her rights and remedies under any other contract or common law cause of action based on the same retaliatory conduct. N.J.S.A. 34:19-8; Lynch v. New Deal Delivery Service Inc., 974 F. Supp. 441, 456 (D.N.J. 1997). Thus, to the extent that plaintiff, in his Woolley claim, sought rights and remedies afforded by CEPA, those claims were waived pursuant to N.J.S.A. 34:19-8.

On appeal, plaintiff raises an additional Woolley claim. He argues that defendants failed to follow the progressive discipline procedures outlined in its employee manual. Those procedures did not provide for termination until the employee committed a third offense; plaintiff was terminated after his second offense. No doubt, "[a] policy manual that provides for job security grants an important, fundamental protection for workers." Woolley, supra, 99 N.J. at 297. And, "[i]f such a commitment is indeed made, obviously an employer should be required to honor it." Id.; see also Witkowski v. Thomas J. Lipton, 136 N.J. 385, 392 (1994) ("employment manual providing terms and conditions of employment that include grounds and procedures for dismissal can create an employment contract").

Plaintiff did not, however, raise that breach of contract claim in the trial court. His amended complaint did not allege breach of contract based on the progressive discipline provisions of the employee manual. His counsel only vaguely referenced the progressive discipline procedures during oral argument, and did not argue that defendants' failure to follow those procedures formed the basis of plaintiff's breach of contract claim. Consequently, because plaintiff raises this claim for the first time on appeal, we decline to address it.

See Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2009).

We turn then to plaintiff's substantive CEPA claim. CEPA is remedial legislation designed "to protect employees who report illegal or unethical workplace activities." Barratt v. Cushman & Wakefield, Inc., 144 N.J. 120, 127 (1996). To maintain a cause of action under CEPA, a plaintiff must satisfy four elements: (1) the plaintiff reasonably believed that the employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law; (2) the plaintiff performed whistle-blowing activity described in N.J.S.A. 34:19-3a, c(1) or c(2); (3) an adverse employment action was taken against the plaintiff; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999). Here, plaintiff failed to establish the second and fourth prongs of this test.

A reasonable factfinder could not conclude that plaintiff engaged in whistle-blowing activity regarding defendants' meat handling, testing and packaging practices. Merely questioning or disagreeing with an employer's policies or practices does not constitute "whistle-blowing" activity within CEPA's meaning. Blackburn v. U.S. Postal Service, Inc., 3 F. Supp. 2d 504, 517 (D.N.J. 1998), aff'd, 179 F.3d 81 (1999). Although plaintiff may have believed that defendants' meat testing and packaging practices were illegal, he never effectively conveyed that belief to O'Keefe, LaMattina or Rubanenko. Plaintiff admits that he never confronted O'Keefe when plaintiff allegedly saw him repackage outdated meat; he also admits that he never spoke to Rubanenko about his concerns. Plaintiff merely told LaMattina about his concern over meat repackaging as LaMattina walked the store floor at night-all plaintiff said was, "[the meat is] rewrapped product. It's green. It shouldn't be out in the case"; and that "the meat case isn't looking good. They're rewrapping product." Plaintiff did not make a formal complaint. Consequently, plaintiff has not proved that his complaint rises to the level of "whistle-blowing" protected by CEPA.

Plaintiff also failed to prove the fourth prong of the test-a causal connection between his complaints about Costco's meat packaging practices and his termination from employment. To establish the requisite causal connection to support a CEPA claim, a plaintiff must produce evidence that would permit a reasonable jury to find that it was more likely than not that the plaintiff's statutorily protected activity was a "determinative or substantial motivating factor in [the defendant's] decision to terminate his employment." Schlichtig v. Inacom Corp., 271 F. Supp. 2d 597, 609 (D.N.J. 2003) (quoting Donofry v. Autotote Systems, Inc., 350 N.J. Super. 276, 296 (App. Div. 2001)).

Plaintiff has not met this standard. He has presented no evidence from which a factfinder could reasonably conclude that Rubanenko, the manager who made the decision to fire him, knew of his complaints about Costco's meat packaging practices. Plaintiff has not presented evidence to establish a link between his informal complaints to LaMattina about those practices and his termination. He made no formal complaints to anyone in the Costco organization. The only reasonable inference to be drawn from the evidence before the court on summary judgment is that plaintiff was fired because he failed to perform the fat test-twice. As his termination notice indicated, his failure to perform that test, "caused Costco to sell product with a label that was possibly inaccurate." See Fioriglio v. City of Atl. City, 996 F. Supp. 379, 393 (D.N.J. 1998) (plaintiff's CEPA claim summarily dismissed because he failed to produce evidence to show that his failure to be promoted was causally connected to his criticism of the defendant-mayor), aff'd, 185 F.3d 861 (3d Cir. 1999), cert. denied, 528 U.S. 1075, 120 S.Ct. 789, 145 L.Ed. 2d 666 (2000). Plaintiff has simply not proved a causal connection between his complaints and his termination.


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