On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2849-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Skillman and Hoffman.
This is an appeal from a summary judgment dismissing plaintiff's hostile work environment claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -38, and related breach of contract claim.
Plaintiff was employed by defendant HEL, Inc. as a salesman. Defendant Dr. Jasbir Singh, who was based in the United Kingdom, was the Managing Director of HEL. Defendant Rebecca Sweeney was the General Manager of HEL, and reported directly to Singh; as part of her supervisory role, Sweeney oversaw employees' use of the company expense account. Defendant Russell Lee was the Director of Sales at HEL. Plaintiff's LAD claim is based on a series of emails exchanged between Sweeney, Lee, plaintiff, and Singh in June 2008, which are described immediately below. Plaintiff's breach of contract claim is based on documents relating to plaintiff's compensation, which are discussed later in this opinion.
On June 7, 2008, Singh and Sweeney exchanged emails in which Sweeney expressed concern that plaintiff was abusing his access to the company expense account. In her email, Sweeney stated:
. . . Adam is by far the biggest challenge. He has little or no regard for anybody other than himself. He constantly interrupts and wants or demands immediate action no matter what. He inserts himself in every single thing -- even personal conversations AND he always pushes the expense thing to the max.
He has never once had a dinner under $50, has never stayed in a "moderate" hotel and on and on!!! He always "finds" reasons to justify this and it is always a fight --because he NEVER relents until I just say NO!
Throughout the day of June 25, 2008, Sweeney and Lee exchanged emails regarding plaintiff's performance at HEL. In one of her emails to Lee, Sweeney remarked:
Can I just say something I shouldn't to you here - he is SUCH A JEW! In a BAD way. He's what gives Jews a bad name.
He's smarter He's better He's owed He will do anything to keep from opening his wallet - right down to not eating!!!! And I am DEAD serious here!!! That's why he expenses every single thing he can because he won't pay anything!
I have not seen him bring one single thing into this office in all the time he's been here - period. (that he paid for)
IF he does bring something in he expenses it . . .
Not like EVERY SINGLE OTHER PERSON I could go on and on and on.......
Even [Singh] said that 99% of the issues we have had with him really stem from money - and he wondered what could have caused him to be that way???
I COULDN'T say to him what I just did to you - that HE is what gives Jews a bad name!!! Although plaintiff was not a recipient of this email, he accessed the email through a company database while attempting to view Lee's calendar, which was available to HEL employees. Plaintiff testified at his deposition that he probably did not have authority to read other employees' business-related emails.
After reading this email, plaintiff forwarded it to Singh in the United Kingdom. Plaintiff demanded Sweeney's termination and cited sections of the employee handbook which prohibit discriminatory behavior. The next day, June 26, 2008, Singh responded:
For sure the comments are not sensible and I too want to deal with it properly. I passed the email for advice to an organi[z]ation in England which deals with racist matters and especially Jewish or anti-[Semitic] problems.
The advise [sic] I got was that the comments are not anti-[Semitic]; primarily because she at no time generali[z]ed about Jewish people nor does she imply that Jewish people behave in this way. The comments reflect ignorance and some lack of thought, rather than racism. Frankly the view was that it was a foolish and rather thoughtless thing to write bearing in mind the sensitivity of such issues these days.
I will be guided by these comments and just wanted to let you know that I have taken your request seriously. Also, it is my intention to take some further action and you will become aware of that in due course, hopefully soon.
That same day, Singh spoke by telephone with both plaintiff and Sweeney. Singh apologized to plaintiff on behalf of the company for the incident and told him it "shouldn't have occurred." However, Singh also told plaintiff that in view of Sweeney's previous good record with the company, he had decided not to terminate her. In his telephone call to Sweeney, Singh informally reprimanded her for the offensive language in her email to Lee.
Later that day, Sweeney apologized to plaintiff for the comments made in her email. Plaintiff responded by a letter which refused to accept Sweeney's apology. This letter concluded by stating:
With this letter, I consider this a closed matter. I do not expect nor want any sort of rebuttal. You do your job. I will do mine.
Obviously, I do not agree with how HEL handled this matter. You should have been terminated or at least suspended and directed to a sensitivity training course.
Finally, my focus now, as it was before and always will be, is to give HEL 110% of my effort to increase sales to our maximum potential. HEL has had a strong history and if I have anything to do ...