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Vicki Palmer v. Shore Culinary LLC D/B/A the Mill At Spring Lake Heights

April 18, 2011


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2004-07.

Per curiam.


Argued October 19, 2010

Before Judges Graves, Messano and Waugh.

Plaintiff Vicki Palmer appeals from the grant of summary judgment to defendants Shore Culinary, LLC, d/b/a The Mill at Spring Lake Heights (The Mill), Don Rodgers and Tamar Tolchin (collectively, defendants). Plaintiff contends that the motion judge misapplied summary judgment standards and her complaint should be reinstated since "a reasonable jury could find that defendants discriminated against [her] because of her age." Plaintiff further argues that Rodgers and Tolchin "may be held [individually] liable as aiders and abettors of unlawful discrimination" and her complaint against them should also be restored. Lastly, plaintiff contends that the judge erred in dismissing her claim under the New Jersey Wage Payment Law, N.J.S.A. 34:11-4.1 to -4.14 (the WPL).

In addition, when they sought summary judgment, defendants moved to strike certain portions of plaintiff's opposition, arguing it violated N.J.S.A. 43:21-11(g) (providing that in the context of claims for unemployment benefits "[a]ll records, reports and other information obtained from employers . . . shall not be subject to subpoena or admissible in evidence in any civil action or proceeding other than one arising under this chapter"). Having granted summary judgment in their favor, the motion judge denied defendants' motion to strike as moot. Defendants have cross-appealed from that order.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Ibid.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's legal conclusions. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We have considered the arguments raised in light of the record and the above-cited legal standards. We affirm the grant of summary judgment to defendants. We dismiss the cross-appeal as moot.


We discern the following facts from the motion record. Plaintiff was born in January 1952. She began working at The Mill, a restaurant and banquet facility in Spring Lake Heights, in September 1986 as the marketing director. In June 2001, Tolchin, the president of Shore Culinary, along with a business partner, Anthony Cirillo, purchased The Mill.*fn1 Tolchin wanted plaintiff to continue the tasks she was performing under the prior owner, including organizing and marketing special events and "doing a newsletter." Tolchin gave plaintiff a $10,000 raise, increasing her salary to $39,000.

After suffering significant operating losses in 2003 and 2004, The Mill retained Rodgers as an outside consultant in August 2004 to improve banquet sales and overall financial performance. In June 2005, Tolchin called a staff meeting and introduced Rodgers. Soon thereafter, Rodgers asked plaintiff to prepare a detailed marketing plan for The Mill.

On August 11, 2005, plaintiff wrote a three-page single-spaced email to Rodgers, with a copy to Tolchin, reiterating some of the marketing techniques already being used, and explaining "why [she] c[ould not] work on the kind of 'Marketing Plan' that [Rodgers] [was] apparently looking for." Plaintiff indicated that she lacked the time because she was working on "a long list of projects." She suggested that Rodgers hire "someone devoted full time to marketing and sales" and implement "an increased advertising budget." Plaintiff concluded the e-mail: "If you in fact hire someone to pursue that type of marketing plan, and if I get some administrative help to free up some of my time, I would be happy to work with that individual . . . ."

In October 2005, Tolchin hired two new sales representatives. She also promoted plaintiff to sales manager and placed her in charge of the sales department. Plaintiff's salary was increased to $42,500, plus a $50 commission on each party booked by the department.

Almost a year later, in early September 2006, The Mill terminated its banquet manager for "performance issues." He was forty-five years of age. Tolchin asked plaintiff if she would accept a promotion and take on the added responsibilities of banquet manager. Rodgers opposed the idea because "he felt [The Mill] needed a full[-]time banquet manager." Plaintiff was "hesitant" but accepted after Tolchin pleaded with her and agreed that plaintiff "could delegate the job responsibilities." Plaintiff became "[c]atering director" and received a $7500 raise to compensate her for the additional duties.*fn2

In October 2006, Tolchin advised the managerial staff at The Mill that she would be limiting her on-site presence and Rodgers would be taking a more active role in daily operations, including the authority to hire and fire employees. In a memo, dated October 25, 2006, Tolchin asked the staff to "[p]lease give Don your full cooperation whenever I am unavailable."

Rodgers testified at deposition that wedding sales "increased very substantial[ly]" in 2006. During her deposition, Tolchin agreed it was "fair to say" that wedding sales increased because of plaintiff's performance.

However, defendants claim that problems arose once Rodgers became more involved in operations at The Mill. In her deposition, plaintiff acknowledged that while she told Rodgers "[she] would support him" in his efforts to "improve thebusiness," she did not think Rodgers "necessarily appreciated . . . the experience that [she] had and the knowledge that [she] brought to the table and he just really wanted things done his way."

Rodgers testified that he, Cirillo and Tolchin discussed terminating plaintiff as early as 2005. Cirillo believed plaintiff and her staff "weren't selling enough and that there was a lot of resistance to change." Rodgers characterized plaintiff's attitude as one of "stubbornness" or "[t]hat's not the way we do things." According to defendants, tensions between Cirillo and plaintiff continued.

Tolchin testified that after plaintiff began performing her additional duties as banquet manager, "it was obvious that [plaintiff] was uncomfortable with her new position and she would make other people around her uncomfortable . . . . She voiced her opinion loudly. She let people know she was not happy."

In late 2006, Rodgers noted errors in marketing materials that plaintiff had approved and brought them to her attention. Defendants produced a memo that Rodgers used as an agenda for a meeting he had with plaintiff on November 7, 2006. One of the items on the agenda included a discussion of plaintiff's "attitude," noting that she "[m]ust demonstrate a more upbeat positive less combative attitude."

Plaintiff claimed that she never saw the memo until this litigation commenced. Nonetheless, plaintiff acknowledged in her deposition that she met with Rodgers in November 2006 and that he urged her to "demonstrate a more upbeat, positive, less combative attitude[.]" Plaintiff, however, denied that she had "a negative . . . attitude." She also acknowledged that she and Rodgers discussed the mistakes in the marketing materials, but she characterized them as "little bli[]ps in a much bigger picture."

In January 2007, plaintiff met with Rodgers. She believed the purpose of the meeting was to discuss a "new marketing plan and the sales department moving forward for the year." Instead, Rodgers told plaintiff that "he had some good news and some bad news." Rodgers informed plaintiff that The Mill was hiring a full-time banquet manager, probably Rodgers' son, to replace her, and rescinding plaintiff's $7500 raise. Rodgers also told plaintiff that she was relieved of the responsibilities of organizing special and networking events so that she could focus on marketing and sales. As a result, plaintiff claims that she anticipated losing an additional $6000 per year in commissions earned from "networking proceeds."

Plaintiff testified that she was "completely shocked," "upset and outraged" by Rodgers' decision. She told Rodgers that while it was acceptable to hire a full-time banquet manager, "[she] would hand in [her] resignation" "if [he] eliminate[d] the special events" and the additional money she received from them. Plaintiff "was completely insulted" because she "was hired . . . 20 years ago" to do special events, and had "created them, marketed them, made them successful, and ran them."

Rodgers told plaintiff that she could potentially earn more money "through a new commission plan." Plaintiff testified the plan "was extremely complicated" with unrealistic sales goals. More importantly, plaintiff believed that she "would not see or realize a lot of the commissions that [Rodgers] was referring to" because they were paid on smaller parties booked by Cirillo, not plaintiff and her staff. Plaintiff testified that she was "dissatisfied" with the new compensation plan and angry, acknowledging that she felt "the company was more concerned about the bottom line rather than with [her] personal feelings and [her] 20 some odd years with The Mill."

Plaintiff asked for a meeting with "the owner" to discuss her concerns and "where [her] job was going." Rodgers told plaintiff he would take her concerns to the owners, but no meeting was ever scheduled. The next day, plaintiff drafted a resignation letter but never submitted it to Tolchin or Rodgers.*fn3

On January 21, 2007, Rodgers sent plaintiff an email noting, "We are all hopeful that things will work out for you with The Mill"; he attached a detailed memo. The memo explained plaintiff's "[r]esponsibilites and [c]ompensation." We quote from it at length:

As discussed . . . your job responsibilities and compensation will be modified for 2007. . . . [I]t is necessary that your sales and marketing efforts be directed toward building the banquet and ala carte sales volume with greater emphasis on creating new opportunities beyond wedding business, while continuing to increase wedding sales as well. . . . [I]n order for The Mill to achieve it's [sic] 2007 sales goals . . . your responsibilities must be reduced to allow you to focus your full efforts on sales and marketing functions. . . . Your base weekly salary will be at the annualized rate of $42,500 with a commission plan in accordance with the attached outline that will provide approximately $30,475 in annual commissions provided that the sales goals ofThe Mill are achieved. In addition you will have an unlimited potential to earn significantly more based upon the successful performance of your sales department.

Your many years of experience with The Mill are valued and we believe that, as you were successful in assisting in building the wedding business, that you could also be successful in increasing the sales activity in non-wedding banquet and ala [c]arte sales and continue to enhance your personal earnings opportunities as well.

While you have expressed an unwillingness to have your job responsibilities reduced and compensation formula changed, the ownership and I believe that a re-focusing of your efforts on the sales and ...

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