On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1674-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Espinosa.
Plaintiff Ronald C. Mason*fn1 appeals from an order that granted summary judgment, dismissing counts of his complaint against defendants. We affirm.
Plaintiff was hired by defendant Zoom Technology, Inc. (Zoom) in 1991 to assist with the assembly of equipment but resigned in 1993 to have an operation on his shoulder. He returned to Zoom August 30, 1999 as a production manager. Both Charles Hansen, Sr. (Chuck), the founder and CEO of Zoom, and his son, Charles Christian Hansen, Jr. (Chris), executive vice-president, were satisfied with plaintiff's performance until the relationship deteriorated in April 2005. His employment was terminated on April 13, 2005.
Among the claims alleged in the lawsuit filed against Zoom and the Hansen defendants were: violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), violation of New Jersey public policy (Pierce*fn2 claim), assault and battery, and breach of contract.
Plaintiff testified that he injured his back in 2002 while working for Zoom in the machine shop. Plaintiff spoke with Chuck and Chris immediately after the injury and was promised that he would be taken care of. Although he missed a number of days of work while seeking medical treatment, he continued to receive full pay. From his initial injury in 2002 until his termination in 2005, Zoom continuously accommodated his medical condition by allowing plaintiff to take days off to seek medical treatment and reducing his physical workload. For example, he was asked not to lift heavy objects so that he would not exacerbate his injury. Plaintiff testified that, on several occasions, Chris discussed his concern about plaintiff's health. He described a time in December 2004 when there was a rush order that required him to work twelve to fourteen hours a day which "took a tremendous toll on [him] physically and mentally[.]" Chris came to him after everything had shipped and said, "I'm really concerned about your physical condition, about you getting additionally injured on the job."
Plaintiff said that in 2003, he was asked to postpone his surgery twice due to difficulties Zoom was experiencing at the time. However, he testified that when Chris and Chuck met with him in February 2005 specifically to discuss when it would be best for plaintiff to have his back surgery performed, neither Chris nor Chuck expressed opposition to plaintiff's surgery.
Chuck denied that he ever asked plaintiff to postpone his back surgery.
Plaintiff said that neither Chuck nor Chris, or anyone else, ever indicated to him that he was terminated because of his disability. In addition, plaintiff testified that he had not heard of any other employees who were discriminated against by Zoom because of a disability.
Plaintiff said that Chris told him to submit his medical bills from the injury in the machine shop to Zoom's insurance carrier, which plaintiff did. However, in 2004, Zoom switched health insurance plans and the medical bills that were previously submitted to the insurer were sent to plaintiff personally. Plaintiff approached Chris, who told him to wait to submit them so they could all be submitted to Zoom's workers' compensation carrier together. Plaintiff testified that Chris never refused to submit the claim and that he did not learn the claim had not been submitted to the workers' compensation carrier until after he was discharged.
Plaintiff testified that Chris became very angry that a fellow employee had filed a workers' compensation claim because Chris was worried about the resulting rise in insurance premiums. Approximately one year before plaintiff was discharged, Chris told him - once - that he was concerned about keeping premiums low.
Chris testified that all compensation claims, if filed, were kept with the employee's personnel file and that plaintiff's file did not include a worker's compensation claim. Chris testified that apparently, the claim was filed after plaintiff was terminated.
Plaintiff testified that in February 2005, a Zoom employee, Barb Newman, notified him that she would be out for four to six weeks due to surgery. He immediately told Chris, who instructed him to fire her. He refused. Plaintiff told Chris that it was his understanding that it was illegal to fire an employee once she informed the employer that she had a disability. After he brought this issue to Chris's attention, Chris did not fire Newman. Plaintiff testified that he believed that Chris did not do so because "he read it in the State of New Jersey statutes, that he printed it out and he found out that, indeed, it was illegal." Plaintiff admitted that Chris never said anything to indicate that he was fired because he had raised this issue. In addition, after Newman began her leave, plaintiff learned of performance issues regarding Newman prior to her disability leave and expressed his own reluctance to take her back. He acknowledged in his deposition that it would not be illegal to terminate her based upon performance problems that existed prior to her disability.
Debbie Bradshaw was the shipper/receiver for Zoom. She had been hired and let go several times and was working at reduced hours. She was absent on February 7 and 8, 2005 and again on March 8, 9, and 10, 2005. She produced doctor's notes for these absences. Chris directed plaintiff to discharge her on March 9, 2005. Plaintiff believed that it was illegal to terminate an employee who documented an illness with a physician's note. Bradshaw was still employed when plaintiff was discharged.
Plaintiff testified that he complained to Chuck Hansen after Chris instructed him to fire Newman and Bradshaw. Chuck confronted Chris, who then returned to plaintiff, angered. Chris was very upset to hear that plaintiff had "gone over his head" by speaking to his father and disobeyed his direct order. Chris told him that he needed to do what he tells him to do; that he was plaintiff's superior and that he should not be going to Chuck about these issues. These were the only statements that plaintiff recalled to support his claim that he was fired because he complained about the allegedly illegal treatment of Newman and Bradshaw. He admitted that Chris never said anything to him that indicated that he was terminated for not firing Newman.
Chuck testified that plaintiff was asked to terminate employees on occasion but that he was never asked to terminate a disabled employee.
Despite these allegations of discrimination and retaliation, plaintiff contended that, shortly before his termination, Chuck promised to give him part ownership and management of Zoom. He stated that, after January 2005, Chuck Hansen told him that he intended to go into semi-retirement at the end of the year and that he wanted to leave Zoom to his son, Chris Hansen, and to plaintiff. Plaintiff testified that he assumed Chris would be in charge and that he would work as a partner. Plaintiff also said he met with Chris in February 2005 and discussed the division of labor within Zoom. Plaintiff said that Chris said he knew the administrative side of the business while plaintiff knew the electrical and mechanical aspects. However, plaintiff admitted that no specifics were discussed. Plaintiff never asked either Chuck or Chris to put the alleged agreement in writing because he saw Chuck as a "father figure" and trusted him. Plaintiff stated that during his employment with Zoom, he had turned down employment offers in reliance on his oral contract with Chuck.
Frank Amato, who worked as a salesman for Zoom from 2002 to 2005, stated in an affidavit that, on a road trip to Chicago after Chuck had returned to work from heart surgery, Chuck told him "that he was going to start phasing out his active role in running Zoom Technology, and that his plan was to leave management and ownership of the business to his son, Chris Hansen, and to his production manager, Ron Mason." He also described another occasion when Chuck and Chris were discussing the future of Zoom. Amato stated that when Chuck explained his plan to have Chris and Ron take over the company, Chris became visibly agitated. Despite the fact that they continued their discussion behind a closed door, Amato could hear that Chris was upset because Chuck planned to have plaintiff share in the management and ownership of the company.
Chris testified at depositions that it was his understanding that his father planned to leave the company to Zoom employees in general but that his father never discussed his plans to leave the company or some form of control or management to plaintiff.
On Monday, April 4, 2005, plaintiff and Chris had a work-related argument that, according to plaintiff, deteriorated into a physical altercation. Chris testified that he needed to discuss an issue with plaintiff. A customer in Canada had been shipped an order that was wrong and needed to be corrected. Plaintiff said that when Chris asked to speak with him, he happened to be carrying a handheld voice recording device in his front shirt pocket and activated it just before entering Chris' office.
In addition to the recorded conversation between plaintiff and Chris, the transcript contains subjective comments by plaintiff that purport to describe events that are not recorded. Chris began the conversation by asking plaintiff to sit down and complaining about his attitude. Plaintiff countered by complaining about his treatment at a meeting on the previous Friday, stating that Chris "kicked [him] in the teeth." Chris denied this and said,
First and foremost I want to make one thing perfectly clear.
You did not get kicked out of that meeting (inaudible) in that conference room when we were discussing Sonnex changes.
You walked out in a huff and a tithy [sic]. Plaintiff did not deny walking out, stating,
Why? Why, because you and everybody in there attacked me, right? Did you not participate?
You sat there and listened. You didn't stop it. Neither did Chuck. No one stopped it, right! What did you do. What did you do. You sat there and helped. You helped Larry attack me. But you know what. Forget it. I made a mistake. I am terribly sorry. I should have been putting ...