On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-005590-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2011
Before Judges Graves, J. N. Harris, and Koblitz.
On December 1, 2006, plaintiff Linda Gibbs was fired from her job at defendant Caswell-Massey Co., Ltd. (Caswell-Massey) after thirteen years because of alleged disloyalty. She sued the company, seeking remedies under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, among several other legal theories. Two co-defendants were Gibbs's co-employees Edward J. Coleman (president from September 2004 until March 2007) and Stacey K. Matushin (human resources manager).*fn1
The Law Division dismissed all but one of Gibbs's claims against the Caswell-Massey defendants on summary judgment,*fn2 finding that Caswell-Massey's decision to discharge Gibbs was primarily based upon a legitimate business reason and Gibbs failed to produce sufficient evidence to create a triable issue that such reason was a pretext for discrimination. We disagree with the motion court's key legal determination regarding pretext and conclude that there are genuine issues of material fact in dispute rendering summary judgment improper. Consequently, we reverse and remand for further proceedings.
The following facts are derived from the summary judgment motion record. Caswell-Massey is a purveyor of luxury bath and body products. It operates from Edison with a workforce of approximately eighty employees. Gibbs was hired in 1993, at which time she was provided with, and signed for, an employee handbook incorporating company policy and procedures.
Gibbs steadily rose through the company ranks, and ultimately was promoted to the position of Corporate Manager, Retail Stores and International Sales. One of her job duties was to serve as a liaison between company headquarters and its satellite retail stores.
In 2000, Gibbs was diagnosed with sleep apnea by Dr. Andrew
R. Freedman, M.D. She immediately brought her medical condition to the attention of Caswell-Massey's then-president Anne E. Robinson. Sleep apnea caused Gibbs to suffer fatigue, making it difficult for her to stay awake at work. Gibbs was observed briefly nodding off several times and was aware that it was an on-going issue affecting the perception of her job performance. Gibbs's doctor prescribed a Continuous Pulmonary Air Pressure (CPAP) device to assist her sleeping at home, but she conceded that she did not always use the device, "as the noise from the CPAP device prevented her from properly monitoring her ill child throughout the night."
On October 29, 2003, Gibbs was warned in a written memorandum that her "failure to notify, unexcused absence, sleeping, and poor job performance . . . are unacceptable. Further instances of any issues related to your performance at Caswell-Massey will result in your termination." Similar memoranda, authored by Coleman, were sent to Gibbs on November 8, 2004 and March 8, 2005.*fn3 Despite persistent warnings, reprimands, and sanctions, Gibbs received an overall work quality rating of "performance above overall expectations" on her November 11, 2005 evaluation -- the last performance evaluation before her termination one year later in late November 2006.
In early November 2006, Caswell-Massey granted Gibbs time off for hernia surgery, for which she took disability leave from November 3 to November 28, 2006. She was fired two days after returning to work. During Gibbs's disability leave, Matushin received an unsolicited telephone call from an unidentified individual who claimed that he had information about a Caswell-Massey employee stealing and selling its products. The caller, later identified as co-defendant Steven Cutler, asked to speak to a company representative. Coleman and Matushin met with Mr. Cutler and his wife, co-defendant Cindy Cutler, on the same day of the telephone call.
Steven Cutler introduced himself as an associate of Gene Gibbs, plaintiff's husband. He stated that he was in a business venture with Mr. Gibbs to sell various items, including Caswell-Massey products, at the Route 18 Market, a local flea market in East Brunswick. He further explained that through plaintiff, Mr. Gibbs had "acquired a massive amount of bath and body products," including "[twenty-five] bins full of Caswell-Massey product[s]."
Steven Cutler provided Coleman with (1) photographs of Caswell-Massey's products on display at the booth set up in the flea market, (2) a plastic bin filled with Caswell-Massey products taken from the booth, (3) a copy of a book with Gibbs's handwriting that appeared to be a price list for Caswell-Massey and other products, and (4) a copy of the lease agreement that the Cutlers, together with Gene Gibbs, entered into with the Route 18 Market, specifically mentioning Caswell-Massey products. Steven Cutler subsequently provided Caswell-Massey with a sworn statement that Gibbs admitted to him that it took her "over [twelve] years" to amass such a "massive amount" of bath and body products.
Based upon these allegations, Coleman decided to conduct an investigation into the veracity of the information. He conducted a search for receipts of purchases made by Gibbs for products acquired through legitimate employee sales. Recalling that he had seen Gibbs at work at an unusual hour, Coleman reviewed Caswell-Massey's security records to confirm his suspicions.*fn4 Finally, when Gibbs returned to work from disability leave, Matushin and Coleman met with her to discuss the allegations.
At the November 28, 2006 meeting, Coleman asked Gibbs to provide receipts for products, but she was unable to do so because either she did not maintain copies of the receipts or none were provided by Caswell-Massey when she purchased items at warehouse sales. Gibbs denied coming into work at odd hours to pilfer products. Gibbs asserted that as part of her job, she was "charged with setting up displays at [Caswell-Massey's]'s office building and making baskets of [Caswell-Massey] product both of which required [her] to maintain [Caswell-Massey] product in her work area." Gibbs added that her husband took Caswell-Massey products ...