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Tina Shipe v. Saker Shoprites

June 29, 2011

TINA SHIPE, PLAINTIFF-APPELLANT,
v.
SAKER SHOPRITES, INC., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1392-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 8, 2011

Before Judges Cuff,Fisher and Fasciale.

In this employment discrimination case, plaintiff Tina Shipe appeals from an order granting summary judgment to defendant Saker ShopRites. She contends that her termination for an alleged unprofessional encounter with her superiors was a pretext for hiring two male meat cutters to replace her. Because plaintiff established a prima facie case for sex discrimination under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, we reverse.

Plaintiff worked as a meat wrapper and then as a meat cutter at ShopRites located in Pennington, Hamilton, and Bordentown for almost twenty years. While plaintiff was on medical leave, Saker purchased each of these stores. When she returned to work, plaintiff was the first woman ever employed by Saker as a meat cutter. Saker classified her as a new employee with a sixty-day probationary period. Plaintiff completed Saker's application for employment and received Saker's rules and regulations for employees, which stated that use of abusive language or profanity constituted grounds for termination.

She worked at each of the three stores Saker purchased for approximately two weeks before being assigned to the Bordentown store. Saker had the ability, under a collective bargaining agreement (CBA) between ShopRite supermarkets and the meat cutter's union, to assign and transfer meat cutters throughout its stores based on need.

On January 28, 2008, after being at the Bordentown store for a few days, an incident occurred involving plaintiff, the store manager Richard Trojan, and her direct supervisor, Chris Antimary. Trojan informed plaintiff that she failed to remove bone shavings from meat that she cut and placed the meat in the wrong container on her previous shift in violation of Saker's procedure manual. Plaintiff denied that she made the mistakes, disputed that the manual addressed cutting and packaging meat, and argued with Antimary. Plaintiff contended that Antimary spoke to her in a "nasty" tone. She admitted that she was loud and upset and stated to Antimary that he "stuck it to [her]," but plaintiff denied using profanity. Trojan then informed Kevin Maroney, Vice President of Human Resources and Labor Relations, of the incident, and Maroney fired plaintiff for using profanity and being abusive. Saker then hired two male meat cutters.

Saker successfully moved for summary judgment. In an oral opinion, the judge found that Saker did not replace plaintiff and stated that Saker had a "legitimate non-discriminatory reason" to terminate her because the record is essentially undisputed that plaintiff acted unprofessionally and inappropriately at that January 28th meeting. There may be some disagreement about . . . whether . . . there was profanity used or not, but the rules and regulations of Saker did not say it just had to be profanity[.]

This appeal followed.

On appeal plaintiff argues that she established a prima facie case for sex discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) because (1) Saker replaced her with two males to perform the same work, and (2) Saker's reason for termination was pretextual. We agree.

When reviewing a grant of summary judgment, we employ the same legal standards used by the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 529 (1995).

We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek, supra, 399 N.J. Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

The LAD prohibits discriminatory employment practices. Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002). To prove employment discrimination under the LAD, New Jersey courts have adopted the burden-shifting analysis established in McDonnell. Viscik, supra, 173 N.J. at 13. Under that analysis, a plaintiff needs to first establish a prima facie case ...


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