January 8, 2009
LIGIA FERNANDEZ, ALEX TASAMA, ANGELICA BEDOYA, MARIA RESTREPO, IVONNE RAMIREZ, ANGELA BERMUDEZ, ANITA IDICA, RUENA TIONGCO, RUTH ZAMBRANO, SHARON SCARBOROUGH, MARIA VARGAS, NORALBA GONZALEZ,*FN1 PLAINTIFFS-APPELLANTS,
COSTCO WHOLESALE CORPORATION AND DAN CALLAGHAN, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-4188-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Stern, A. A. Rodríguez and Payne.
Plaintiffs, former employees of defendant Costco Wholesale Corporation of various races and national origins, appeal from an order of summary judgment dismissing their action against Costco and its Hackensack store's Warehouse Manager, A. Daniel Callaghan, charging violations of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -34, and defamation. On appeal, plaintiffs raise the following arguments:
POINT ONE THE TRIAL COURT ERRED IN FAILING TO APPLY THE PRICE WATERHOUSE ANALYSIS IN LIGHT OF THE RACIST REMARKS UTTERED BY A DECISION-MAKER DURING THE ADVERSE EMPLOYMENT DECISION.
POINT TWO THE TRIAL COURT ERRED AS A MATTER OF LAW IN IGNORING DISCRIMINATORY REMARKS MADE BY SOMEONE WHO PARTICIPATED IN THE DECISION MAKING PROCESS TO SATISFY THE PRICE [WATERHOUSE] TEST.
POINT THREE THE TRIAL COURT ERRED AS A MATTER OF LAW IN IGNORING CALLAGHAN'S RACIST REMARKS AS DIRECT [EVIDENCE] OF THE CORPORATE CULTURE OR THE INFORMAL MANAGERIAL ATTITUDE AT THE TIME OF THE ADVERSE EMPLOYMENT ACTION.
POINT FOUR THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT SINCE THERE WERE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE REGARDING DEFENDANTS' REASONS FOR PLAINTIFFS' TERMINATION.
POINT FIVE THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT REGARDING PLAINTIFFS' DEFAMATORY CLAIMS ON THE GROUND THAT WHETHER THE CONDITIONAL PRIVILEGE WAS ABUSED IS A QUESTION FOR THE JURY, NOT THE COURT.
The following facts are relevant to our consideration of the issues raised. In the early part of 2005, Costco ran a promotion with Whirlpool Corporation and Huish Chemical Company in which Costco members who purchased a Whirlpool appliance and an additional one-year warranty received two coupons for free Kirkland liquid fabric softener and dryer sheets in the mail directly from Huish. The promotion was different from all others offered by Costco because it provided free product, not product at a discounted price or two products for the price of one.
On March 19, 2005, a customer presented two coupons for fabric softener and dryer sheets to cashier Angela Bermudez, stating that they had been received in the mail. After validating the coupons and completing the transaction, Bermudez did not place the coupons in the register's drawer with other redeemable items, but instead, kept them, offering them to customers and employees in five transactions on March 19, six on March 21 and eight on March 22. Among the store employees who thus received free products were plaintiffs Ligia Fernandez, Angelica Bedoya, Maria Vargas, and Anita Idica. In addition to obtaining free product for herself, on March 19, Bedoya, the warehouse's Membership Manager, performed a manager's override on Bermudez's register so that plaintiff Ruth Zambrano could utilize the coupons. Zambrano obtained additional fabric softener and dryer sheets, with Bermudez as cashier, on March 21.
Having obtained the coupons from Bermudez, plaintiff Alex Tasama, a part-time cashier, utilized them himself to obtain two bottles of fabric softener and two boxes of dryer sheets on March 19. On this occasion, Tasama permitted his assistant cashier, plaintiff Noralba Grajales, to utilize Tasama's register to process the transactions but did not follow store procedures when changing cashiers. Tasama additionally obtained for himself three bottles of fabric softener and three boxes of dryer sheets in two transactions on March 21, utilizing plaintiff Ivonne Ramirez as cashier, and plaintiff Maria Restrepo obtained two bottles of fabric softener and two boxes of dryer sheets in the same fashion. Tasama was the cashier for two other transactions on March 19, including one involving Grajales, who utilized the member card of employee Euro Armijos, and six transactions on March 22. Among those utilizing Tasama to obtain fabric softener and dryer sheets on March 22 were plaintiffs Ivonne Ramirez, Ruena Tiongco, and Sharon Scarborough. In total, forty-three bottles of fabric softener and thirty-five boxes of dryer sheets were obtained by use of the coupons during the four-day period from March 19 to 22.
On March 21, 2005, Sami Nasr, the manager checking the receipts of employees leaving the building when the store closed, noted that a number of employees had register returns disclosing the receipt of free fabric softener and dryer sheets. Suspicious, he advised Assistant Warehouse Manager Paul Pelusio of his findings. Their subsequent investigation of computer records suggested misuse of coupons by a number of store employees. The evidence was left in a file for Warehouse Manager Callaghan to review on March 22.
Upon reviewing the material presented, Callaghan called his superior, Rob Leuck, Vice-President for the Northeast Region. Leuck, in turn, advised Callaghan to contact Regional Loss Prevention Manager Kevin Goulet. Thereafter, Callaghan, Goulet and sales auditor Jenny Garcia reviewed every transaction in which the subject coupons had been utilized, determining from that review that fifteen Costco employees had misused the coupons, including the twelve plaintiffs in the present action. None had purchased a Whirlpool appliance. The information was forwarded to Leuck, who directed Callaghan to interview the employees and, if warranted, suspend them pending termination. During the course of the interviews, which took place between March 24 and 26, it was learned that Armijos had not misused the coupons, but had only loaned his membership card to Grajales. He was not suspended; the remaining fourteen employees were. All fourteen admitted to use of the coupons, which they either realized at the time as wrong or, during their interview, recognized was improper.
Of those suspended, thirteen were members of Teamsters' Local 210. Costco's contract with the union contained a list of major and minor offenses that could serve as a basis for any employee discipline. The same major offenses were set forth in the employee agreement applicable to non-union employee Bedoya. Among the major offenses was number 274, "Proof or Confession of Dishonesty Including Theft."
It is undisputed that, pursuant to Costco's Employee Handbook and existing policies and practices, termination decisions concerning employees with more than two years of service are made by a Senior Vice-President or higher officer, and by an Executive Vice-President if the employee has five years of service. Four employees, Zambrano, Idica, Vargas, and Bedoya, had more than five years of service and an additional four employees had more than two years of service. Following the interviews and issuance of suspension notices, a summary of the investigation was forwarded to Leuck, who on March 28 advised that the fourteen employees who had misused the coupons should be terminated for dishonesty or theft.
Costco claims that the decision to terminate the employees was made solely by Executive Vice President and Chief Operating Officer Joseph Portera. That claim is supported by certifications from both Portera and Callaghan and by corporate policy.
Plaintiffs assert, alternatively, that Portera did not make the decision or that he was substantially influenced by recommendations from Callaghan. In support of their first position, plaintiffs rely on a certification by Bedoya, a supervisory employee at Costco before her termination, in which she attests that following her suspension, she contacted Portera, who was unaware of the coupon misuse, and plaintiffs rely on Bedoya's further statement that "Callaghan is the person who decides who gets fired. Joe Portera does not know what goes on in the Hackensack warehouse because he lives in Seattle. Portera relies on Callaghan's recommendations regarding employment matters." However, plaintiffs have no evidence to dispute Costco's position that the investigative materials were provided to Portera after Bedoya's call had taken place. We note as well the lack of any factual foundation for Bedoya's claim that Callaghan makes firing decisions and for her conclusion that Callaghan recommended termination to Portera. Additionally, we note the absence of any evidence that Costco's requirement that termination decisions regarding employees with more than two years of experience be made by senior corporate management -- a requirement that plaintiffs acknowledge to exist -- was violated in this case. Although Callaghan informed the employees of the employment action, we have found nothing in the record to support the position that he either affected or made the termination decision.
Following their termination, Local 210 filed a grievance on behalf of the thirteen unionized employees. Employees Tiffany Morel and Faylin Brown proceeded with arbitration and were eventually reinstated pursuant to a settlement with Costco. However, plaintiffs determined to forego arbitration pursuant to the collective bargaining agreement and instead filed suit. In Count One of their suit, plaintiffs claim discrimination by Costco under the LAD. They name Callaghan as an aider and abettor in Count Two, and in Count Three they claim defamation by Costco in the termination process.*fn2 After the close of discovery, Costco moved for summary judgment, and that motion was granted. This appeal followed.
N.J.S.A. 10:5-12(a) prohibits employers from discriminating on the basis of race or national origin. In this case, plaintiffs claim discrimination on the basis of Columbian national origin, alleging in this regard that Callaghan referred to Tasama as "the kingpin of the Columbian mafia" when interviewing him during the course of the investigation of employee use of the coupons -- a statement that Callaghan denies, but that we will accept, for purposes of this appeal, as having been made. However, we note at the outset that two of the plaintiffs, Idica and Tiongco, are from the Philippines and that one plaintiff, Scarborough, is African-American. Although these plaintiffs belong to a protected class, no evidence of discrimination against them has been presented, and for that reason, entry of summary judgment against them was proper. Plaintiffs offer no arguments to the contrary.
On appeal, plaintiffs argue first that the motion judge erred in his choice of the standard to be utilized in determining the validity of their claims of employment discrimination. In granting summary judgment to Costco and Callaghan in this matter, the motion judge utilized the four-prong test adopted by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). Under that framework, in a termination context, a plaintiff must first establish a prima facie case of discrimination by demonstrating that he or she belongs to a protected class, was qualified for the job, was adversely affected by an employment decision, and was treated less favorably than employees outside of the protected class. See Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 70 (App. Div. 2004), certif. denied, 183 N.J. 213-14 (2005). Once a prima facie case is established, the burden of going forward shifts to the employer to establish a legitimate, non-discriminatory business reason for the adverse employment action. If that burden is met, the burden of production shifts back to the plaintiff to show that the reason articulated by the employer is pretextual. Throughout, the burden of proof remains on the plaintiff. Ibid.
Plaintiffs argue that because they have direct evidence that Callaghan uttered a discriminatory statement when interviewing Tasama and because they claim Callaghan influenced or directed the termination decisions, the motion judge should have instead utilized the analytical framework established by Justice O'Connor in her concurring opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 276, 109 S.Ct. 1775, 1796-97, 104 L.Ed. 2d 268, 304-05 (1994). See also McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 523 (2003). Price Waterhouse provides that in instances where there is direct evidence of discrimination, the analytical framework established in McDonnell Douglas is inapplicable. Instead, if an employee can show by direct evidence that the employer knowingly gave "substantial weight to an impermissible criterion" when making an adverse employment decision, the burden is placed on the employer to show that discrimination was not the but-for cause of the adverse employment action. Price Waterhouse, supra, 490 U.S. at 261-62, 109 S.Ct. at 1796-97, 104 L.Ed. 2d at 295.
As Justice O'Connor observed in an analogous Title VII employment discrimination context, it is appropriate to shift the burden of proof to the employer where an employee has shown by direct evidence "that an illegitimate factor played a substantial role in the employment decision" because it "identifies those employment situations where the deterrent purpose of Title VII is most clearly implicated." Id. at 276, 109 S.Ct. at 1804, 104 L.Ed. 2d at 304. "[W]here a plaintiff has made this type of strong showing of illicit motivation, the factfinder is entitled to presume that the employer's discriminatory animus made a difference in the outcome, absent proof to the contrary from the employer." Ibid. The employer is then required to "convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor." Id. at 276, 109 S.Ct. at 1804, 104 L.Ed. 2d at 304-05. The employer must show that sufficient business reasons existed to justify the adverse employment action even after the illegitimate factor is removed from the calculus. Id. at 276-77, 109 S.Ct. at 1804, 104 L.Ed. 2d at 305.
However, a statement will suffice as direct evidence of discrimination only when it was more than a "stray remark" and was made by the decisionmaker as part of the decision making process. Id. at 277, 109 S.Ct. at 1804-05, 104 S.Ct. at 305. In order for the burden shifting of Price Waterhouse to be applicable, the court must be satisfied that the statement "actually bore on the employment decision at issue and communicated proscribed animus." McDevitt, supra, 175 N.J. at 528.
Significantly, a statement made by a non-decisionmaker cannot justify imposition of Price Waterhouse burden shifting. 490 U.S. at 277, 109 S.Ct. at 1804-05, 104 L.Ed. 2d at 305. Because plaintiffs have no competent proof that Callaghan made the decision to terminate plaintiffs or influenced the decisionmaking process, Price Waterhouse is inapplicable. To successfully oppose summary judgment plaintiffs were required to present more than a "scintilla" of evidence to support their position that Callaghan made or influenced the termination decision that Portera has acknowledged making. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995). In this case, the only evidence presented by plaintiffs regarding Callaghan's role in their terminations was Bedoya's self-serving and evidentially unsupported statements that Callaghan "is the person who decides who gets fired," that Portera "relies on Callaghan's recommendations regarding employee matters," and that, at some point during the period during which she was suspended but prior to her termination, she contacted Portera, who was unaware of the coupon misuse. Costco's evidence, in the form of corporate policy, a certification by Callaghan denying any substantive role in the decisionmaking process, and Portera's certification that he was the decisionmaker overwhelms the "scintilla" of evidence offered by plaintiffs.
Indeed, as a factual matter, it is difficult to recognize animus against Columbians as the motivation for the terminations, since all employees who were found to have utilized the coupons were terminated, and some of those employees were not Columbian.*fn3 Of the fourteen employees who were terminated for misusing the coupons, ten were Hispanics, nine of whom were of Columbian origin or descent, one was African-American, one was described as Caribbean, and two were from the Philippines. The one employee who was investigated but not terminated was an Hispanic of Ecuadorian descent. Thus, even if we were to determine that a reasonable jury could find that Callaghan was the ultimate decisionmaker, the judge did not err when he declined to apply Price Waterhouse because plaintiffs failed to present direct evidence that their status as Columbian-Americans was given substantial weight in Costco's termination decision, and they thus failed to meet their burden of proof on this issue. McDevitt, supra, 175 N.J. at 528. Given the facts of this case, a reasonable factfinder could not conclude that plaintiffs' Columbian origin and descent was the but-for cause of their terminations, even if Callaghan had been the ultimate decisionmaker and even if he had called Tasama "the kingpin of the Columbian mafia," because numerous employees were terminated who were not of Columbian descent. Here, plaintiffs of varied races and ethnicities all undisputedly used the coupons. All were fired. It is thus clear that Callaghan's alleged statement had no bearing on plaintiffs' terminations.
Plaintiffs argue alternatively that the motion judge erred when he granted summary judgment to Costco based upon Costco's proffer of a legitimate, non-discriminatory business reason for plaintiffs' termination. In this regard, the judge stated:
In this case, it is clear the plaintiffs cannot prove that they were treated less favorably than other employ[ees] outside the protected class.
This court finds that the undisputed facts show that all employees using the coupons to get free merchandise were, in fact, fired, including the only white employee involved in this misconduct. Thus, this court believes that there is absolutely no proof of disparate treatment.
Even assuming that the plaintiffs somehow can sustain [their] burden of proving a prima facie case of discrimination, [they] certainly can't rebut [defendant's] legitimate reason for their termination. Each plaintiff in this case admitted to the theft, which certainly gives good cause for termination under the circumstances.
Obviously, this decision to terminate was a valid and nondiscriminatory reason for the termination. . . .
The fact that the plaintiffs in this case believe that the termination was unduly harsh is of no consequence. This court's concern and only concern is whether the defendant's proffered reason was a pretext for any racial discrimination.
. . . This court must conclude that the overwhelming competent evidence reveals that, in fact, the plaintiffs were terminated not because they were Hispanics, African-Americans, Caribbean, or Filipinos. The facts support a finding that they were simply terminated because they were thieves and engaged in a scheme to steal from their employer.
Further, it is clear that the plaintiffs cannot rebut defendant's legitimate business reason for the termination since . . . number one, all employees involved, including one white employee, were in fact fired; number two, at least one employee of Hispanic origin was exonerated of the charges and retained as an employee. This in itself refutes any claim by the plaintiffs that the defendants were targeting minority employees only.
Number three. Plaintiff[s have] failed to identify similarly-situated . . . employees who were treated differently. All employees using the coupons were fired, white, black, Hispanic, or otherwise. The . . . other persons identified by plaintiffs cannot properly be compared to the plaintiffs.
We agree with the motion judge that plaintiffs failed to establish a prima facie case and failed to rebut Costco's evidence of a legitimate business reason for their termination. There is no doubt that plaintiffs were members of a protected class who, prior to the incidents at issue, were performing their jobs satisfactorily, and they were terminated. However, plaintiffs have not adequately proven that, upon termination, they were treated less favorably than non-protected persons. Indeed, as the motion judge recognized, all persons who utilized the coupons were treated identically.
Plaintiffs claim that "[d]uring the promotional period, [Assistant Warehouse Manager] Pelusio authorized and encouraged the use of the Kirkland coupons." This assertion is based upon testimony by one plaintiff, Scarborough, that Pelusio had given her permission to use a coupon. On this basis, they claim that Pelusio, a member of a non-protected class, should have been terminated as well. However Pelusio was not similarly situated, because he did not utilize a coupon. Moreover, as reflected in the certification given by plaintiff Bedoya, it is unclear that Pelusio even knew of the nature of the promotion at the time of the incidents at issue. Plaintiffs rely as well on the reinstatement of terminated employees Morel and Brown. However, those employees grieved their terminations through arbitration; plaintiffs did not.
Plaintiffs also claim that David Woodsack was not terminated although he was unable to account for "approximately $500" in a deposit. However, plaintiffs' only knowledge of the incident was through office gossip. They cannot even confirm that Woodsack was at fault. Further, plaintiffs note that Sydney Hersh, a deaf pharmacist, was merely suspended for three days when, after the batteries in the amplification apparatus attached to the pharmacy's telephone failed, he took a package of batteries from a warehouse shelf, replaced the batteries in the unit, and put the remaining batteries in a pharmacy supply drawer. However, Hersh was entitled to the batteries as necessary to his job performance; his fault lay in taking the batteries from the shelf without properly accounting for them. Thus, plaintiffs cannot demonstrate that either Woodsack or Hersh was similarly situated to them. Davis v. Philadelphia Water Dep't, 57 Fed. App'x 90, 92 (3d Cir 2003); Jackson v. Georgia-Pacific Corp., 296 N.J. Super. 1, 22 (App. Div. 1996), certif. denied, 149 N.J. 141 (1997).
We note as well that virtually all of the terminated employees were replaced by persons of Hispanic origin. Fernandez was replaces as Supervisor by Carlos Silva, an Hispanic, and Bedoya was replaced as Membership Manager by Dinora Lotero, whose national origin is Columbian. Although Costco claims that "it is impossible to track direct replacements for individual cashiers," its statement that "[n]early all the cashiers terminated were replaced by cashiers of Hispanic ethnicity" is unrefuted.
Even if we were to assume that plaintiffs had set forth a prima facie case, they still cannot prevail because Costco offered a legitimate, non-discriminatory business reason for terminating them, and there is absolutely no evidence that the business reason offered was merely pretextual. Indeed, the terminations accorded with Costco's unrefuted policy of not tolerating theft of any kind, and were authorized by the union's contract with the company. Whether Costco's subjective decision to terminate the employees was "fair," given the de minimis value of the merchandise that was taken, is irrelevant in the present context. Viscik v. Fowler Equipment Co., 173 N.J. 1, 21 (2002).
As a final matter, plaintiffs argue that the motion judge erred when he found that a qualified privilege applied to Callaghan's alleged statements that plaintiffs were "thiefs," [sic] "stole, "acted dishonestly" and "falsified records."*fn4
However, when affirming a grant of summary judgment, we have recognized a qualified privilege to exist in an employment context for the protection of the interest of the publisher and recipient "if the circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information another sharing the common interest is entitled to know." Gallo v. Princeton Univ., 281 N.J. Super. 134, 143 (App. Div.) (quoting Restatement (Second) of Torts § 596), certif. denied, 142 N.J. 453 (1995); see also Murphy v. Johns-Manville Prods. Corp., 45 N.J. Super. 478, 492 (App. Div.), certif. denied, 25 N.J. 55 (1957) (finding that a qualified privilege generally exists for communications within a corporate entity).
The privilege may be lost by "excessive publication, that is, by publishing defamatory matter without a reasonable belief 'that the publication is a proper means of communicating the defamatory matter to the person to whom its publication is privileged.'" Gallo, supra, 281 N.J. Super. at 143 (quoting Bainhauer v. Manoukian, 215 N.J. Super. 9, 43 (App. Div. 1987) (quoting Restatement (Second) of Torts § 604). Further, the privilege can be lost if plaintiffs can establish "that the publisher knew the statement to be false or acted in reckless disregard of truth or falsity." Id. at 146 (quoting Dairy Stores, Inc. v. Sentinel Publ'g Co., Inc., 104 N.J. 125, 151 (1986). However, plaintiffs must prove such abuse by "clear and convincing evidence." Ibid. (quoting Erickson v. Marsh & McLennan Co., 117 N.J. 539, 565 (1990)).
Although plaintiffs claim in the present matter that the applicability of the qualified privilege must be resolved by a jury, they provide no evidence whatsoever to support either a claim of excessive publication or malice. In fact, plaintiffs provide no facts with respect to excessive publication, and their claims of malice are belied by admissions by plaintiffs that they knew at the time or eventually realized that their conduct was wrongful and are otherwise unsupported by credible evidence as required by Rule 4:46-2(c). In such circumstances, summary judgment was appropriately granted. Brill, supra, 142 N.J. at 540; Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Plaintiffs also base their defamation claims upon Callaghan's alleged statement to Tasama, in the presence of other employees, that he was the kingpin of the Columbian mafia. Because that statement pertained only to Tasama, the remaining plaintiffs cannot base their actions upon these words. We therefore affirm summary judgment on the defamation claims by them.
In Biondi v. Nassimos, 300 N.J. Super. 148 (App. Div. 1997), we recognized that the statement that the plaintiff had mob connections was defamatory, and that its oral utterance constituted slander. Id. at 152. However, we held that it did not constitute slander per se, and thus the plaintiff was required under the common law to establish "special damages," which we defined as "harm of a material or pecuniary nature." Id. at 153 (quoting Ward v. Zelikovsky, 136 N.J. 516, 540 (1994)). We regard Biondi's recognition of the defamatory nature of statements suggesting mob or mafia connections to be applicable to the present matter. However, we are unable to discern from the record whether Tasama can demonstrate the requisite "special damages," or indeed, whether he was damaged at all. For that reason, we reverse summary judgment on Tasama's defamation claim and remand the matter to the trial court for further consideration of issues including damages.
Summary judgment in defendants' favor on Counts One (LAD) and Two (aiding and abetting) of plaintiffs' complaint is affirmed. Summary judgment in defendants' favor on Count Three (defamation) is affirmed with respect to all plaintiffs except Alex Tasama, as to whom summary judgment is reversed.