On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1526-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Grall.
Plaintiff Daryl Murray (Murray) appeals from a summary judgment order dismissing his complaint alleging race-based discrimination in hiring and contracting contrary to N.J.S.A. 10:5-12(a),(l), an order denying his motion to amend his complaint to include an allegation of reprisal contrary to N.J.S.A. 10:5-12(d), and an order denying his motion for reconsideration. Defendant Pinnacle Foods Corporation (Pinnacle) and its Director of Information Technology, defendant Donna Wynn (Wynn), cross-appeal from the part of an order denying their application for counsel fees and costs pursuant to N.J.S.A. 10:5-27.1. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.
The material facts, viewed in the light most favorable to Murray, are as follows. Murray works as a computer programmer and analyst. Pinnacle is a Delaware corporation engaged in the manufacturing and distribution of frozen foods, with a business office in Cherry Hill, New Jersey. In January 2002, Murray applied for an open position in Pinnacle's information technology department, but another applicant, not a member of a protected class, was selected.
After that unsuccessful application, Murray established Murray Communications, L.L.C. He is its sole principal. On October 12, 2004, Pinnacle retained Murray as a consultant through his LLC. Pursuant to that "Consulting and Confidentiality Agreement" (Agreement), Pinnacle was to pay Murray at the rate of $65 per hour for consulting and technical services. The Agreement stated that Murray was an independent contractor and that either party could cancel the Agreement "at any time by providing the other with fourteen (14) days written notice." Prior to finalizing the Agreement, Murray was interviewed by Wynn at Pinnacle's business office.
On November 8, 2004, Pinnacle terminated plaintiff's agreement with Murray effective that day. On the same day Murray wrote to Tony Hipszer, Pinnacle's Vice President of Information Technology. Although he acknowledged he was terminated because Pinnacle was not satisfied with the progress of his work, Murray disagreed with Pinnacle's assessment of his work and stated Pinnacle had failed to give him proper notice the Agreement would be cancelled:
On November 8, 2004, at or about 4:45 pm, you summoned me to your office to verbally inform me that Pinnacle was terminating the aforesaid contract effective "immediately." You stated that your managers Donna Wynn and Lorna Fisher were not happy with the progress that I had made on the MEI Interface Program and that Donna Wynn did not think that I was capable of helping her team complete the project on time. You further stated that upon the conclusion of our brief informal meeting, you would allow me several minutes to return to my work area, collect my belongings, and sign off from my computer sessions. At which time you would meet me at my assigned cubicle and then escort [me] out of the building. After hearing your verbal termination notice, I immediately expressed to you my respectful disagreement with Donna Wynn's assessment of the status of the program development. In fact, I additionally offered that I had indeed delivered a working program as per the vague specifications given to me to date, and was in the process of completed self defined testing and debugging of the application program in question. I also expressed to you that Pinnacle Foods was now in Breach of Contract as it had violated the "Term" clause of the Agreement by failing to give proper and timely written notice to terminate said contract.
In the same letter, Murray stated Pinnacle's actions were "disrespectful and discourteously unprofessional" and its conduct was harmful to his "professional character and good name." Murray also advised he would be "filing a civil suit to recover both compensatory and punitive damage[s]." There was no mention of race in the letter Murray sent to Pinnacle on November 8, 2004.
In January 2005, after an unsuccessful attempt to negotiate a payment of compensation and damages due on account of Pinnacle's failure to give two-week's notice as required by the Agreement, Murray filed a complaint in Camden County sounding in contract and tort. He did not include a count alleging a violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42.*fn1
In June 2005 and April and June 2006, Murray reapplied for employment with Pinnacle, again without success. In December 2006, Murray filed a second suit in a different venue, Burlington County (Docket No. L-3456-06). In that complaint, Murray charged that another independent contractor had wrongfully acquired his consulting opportunity with Pinnacle and that Pinnacle fraudulently concealed, "withheld, altered and/or destroyed" evidence relevant to the Camden County case. That complaint was dismissed as to Pinnacle on February 2, 2007 and voluntarily dismissed as to the other independent contractor on March 26, 2008.
In June 2007 Murray again submitted his resume in pursuit of employment with Pinnacle, again without success, and he also filed the Burlington County complaint that led to this appeal. The acts of discrimination alleged were based upon Pinnacle's hiring decision in 2002, termination of his consulting agreement on November 8, 2004, and Pinnacle's hiring decisions in 2005 and 2006. Murray's proposed amended complaint, which he was denied leave to file, included a charge that Pinnacle's denial of his application in 2007 was based upon racial discrimination.
On its motion for summary judgment, Pinnacle contended that Murray's claims based upon events up to and including the termination of the consulting agreement were barred by the two-year statute of limitations. With respect to its rejection of Murray's employment applications filed after termination of the consulting agreement, Pinnacle asserted a business reason for those decisions, one of which was Murray's ongoing litigation of claims against Pinnacle.
The trial court ruled Murray's LAD claims based on Pinnacle's failure to hire him in 2002 and his LAD claims resulting from termination of his consulting agreement in 2004 were time-barred. Moreover, because of Murray's "antagonistic approach" following termination of the consulting agreement, the court found that Pinnacle had legitimate business reasons for refusing to rehire him in 2005 and 2006, and that there was insufficient evidence to support an inference that Pinnacle did not act for its proffered nondiscriminatory reasons in 2005, 2006 or 2007.
Murray filed a motion for reconsideration and other relief, and defendants filed a cross-motion for reconsideration of the court's decision denying counsel fees and costs. ...