On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2461-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2008
Before Judges Fuentes and Chambers.
Plaintiff Melissa Mersmann appeals from the order of the Law Division dismissing her cause of action by granting defendant's, Continental Airlines, Inc., motion to dismiss under Rule 4:6-2(e). Plaintiff filed suit against defendant alleging age discrimination and retaliation, in violation of the Law Against Discrimination (LAD), in violation of N.J.S.A. 10:5-12(a) and N.J.S.A. 10:5-12(d). We affirm.
Plaintiff was previously employed by defendant as a flight attendant. On March 8, 2002, defendant terminated plaintiff's employment for displaying inappropriate conduct during a flight from Aruba to Newark. Specifically, defendant alleged that plaintiff was intoxicated during the flight, appeared to be sleepy and incoherent, and failed to carry out her duties by making repeated inappropriate announcements over the aircraft's public address system.
Upon plaintiff's application, the matter was submitted to final and binding arbitration under the provisions of the Railway Labor Act (RLA), and pursuant to the collective bargaining agreement between defendant and plaintiff's Union, the International Association of Machinists and Aerospace Workers. Both parties were represented by counsel. After conducting a full hearing, the arbitration Board of Adjustment (BOA) found against plaintiff, and she was terminated from her employment. Plaintiff did not raise any allegations of discrimination as part of her defense during the BOA arbitration.
Although the arbitration resolved all of the issues leading to her termination, plaintiff thereafter filed suit in the Law Division alleging violations of the LAD. On February 4, 2005, ruling on defendant's motion to dismiss filed pursuant to Rule 4:6-2(e), Judge Merkelbach issued a comprehensive, well-reasoned, oral decision dismissing plaintiff's complaint with prejudice finding, in pertinent part, as follows:
In the case at bar, plaintiff grieved her termination in accordance with the RLA. Importantly, plaintiff was given every opportunity to present evidence to the BOA. The BOA was . . . comprised of a mutually chosen arbitrator and a board member selected by each party. Plaintiff was represented by counsel and had the option to present evidence.
Further, plaintiff has not submitted that the proceeding was compromised, nor has she submitted new evidence that was not before the BOA. Because plaintiff has not come forward with evidence rather than mere allegations to rebut defendant's argument as to the fourth prong of the McDonnell Douglass*fn1 test, she cannot sustain her LAD claim. Accordingly, defendant's motion to dismiss, treated here as a motion for summary judgment, is granted in its entirety.
Plaintiff appealed Judge Merkelbach's decision to the Appellate Division. We affirmed in an unpublished opinion, concluding that "the proofs [in the case] were so one-sided that defendant must prevail as a matter of law." Melissa Mersmann v. Continental Airlines, Inc., Docket No. A-4938-04T3, (App. Div. March 3, 2006) (slip op. at 12). Plaintiff attempted to appeal our opinion to the Supreme Court, but her petition for certification was dismissed for lack of prosecution. (See unpublished order of the Supreme Court, Melissa Mersmann v. Continental Airlines, Inc., Docket No. M-1428 (June 12, 2006)).
On June 8, 2006, plaintiff applied for an in-flight position with defendant. She did not disclose her employment and/or litigation history described ante. On October 25, 2006, defendant's representative contacted plaintiff expressing an interest in her application, and wanting to schedule a formal interview. Again, plaintiff failed to mention her employment history with Continental Airlines.
When plaintiff arrived for an interview on November 13, 2006, she was recognized by Chris Mendez, a Continental Airlines employee. Mendez immediately contacted the Airlines' headquarters in Houston Texas. After confirming plaintiff's employment history, Mendez informed plaintiff that she would not be hired for any position at Continental.
Plaintiff then filed the present action against defendant, alleging age discrimination and retaliation based on her previous unsuccessful suit against defendant. Once again, defendant filed a motion to dismiss under Rule 4:6-2(e). This time, however, defendant also argued that plaintiff's ...