On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-010353-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2012 -
Before Judges Baxter, Nugent and Carchman.
Following our remand, plaintiff Marc Liebeskind appeals an October 29, 2010 Law Division order that dismissed his complaint against defendant Colgate-Palmolive Company (Colgate), after the judge held that the complaint failed to state cognizable claims for relief under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employment Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The judge concluded that, as a matter of law, plaintiff had not established a cause of action for either age discrimination under the LAD or retaliation under CEPA. We affirm.
Plaintiff was employed by defendant Transnet Corporation (Transnet)*fn1 as a computer technician from February 1998 to December 2005, providing technical support to Transnet's customers, including Colgate. The contract between Colgate and Transnet obligated Transnet to provide computer support services at Colgate's Manhattan headquarters and at its technology center in Piscataway, where Transnet technicians provided computer services at a Colgate Help Desk on Colgate premises.
Although Colgate reserved the right to request Transnet to replace an employee who "fail[ed] to perform in a satisfactory manner," and Transnet agreed to do so if Colgate provided supporting reasons, Colgate had no authority to directly remove or terminate a Transnet employee, even if Colgate deemed the employee's performance unsatisfactory. Pursuant to the contract, Transnet billed Colgate monthly for the services provided by Transnet's employees. Transnet paid salary and benefits, and issued a W-2 to plaintiff and the other Transnet employees assigned to the Colgate Help Desk in Piscataway.
From 2001 to 2005, plaintiff sent a series of emails to the Colgate manager in charge of the Help Desk, complaining that his Help Desk colleagues smelled of smoke, which bothered him because he had "asthma and a sensitivity to tobacco smoke." He asked the Colgate manager to seat him elsewhere.
In September 2005, Colgate opted not to renew its agreement with Transnet, choosing to instead hire its own technicians for full-time jobs. Plaintiff applied for one of the new positions, and was interviewed, but Colgate did not offer him employment. When its contract with Colgate ended in September 2005, Transnet was unable to find new work for plaintiff, and plaintiff's employment relationship with Transnet came to an end. Plaintiff and Transnet executed a release, under which, in exchange for payment of an undisclosed sum of money, plaintiff released Transnet from any potential claims arising from unlawful employment practices prohibited by the LAD or CEPA. The agreement did not release any possible claims plaintiff may have had against Colgate.
In a September 5, 2006 letter to Colgate, plaintiff alleged that Colgate refused to hire him in 2005 in retaliation for his complaint that cigarette smoke had aggravated his asthma. He also alleged that Colgate had refused to accommodate his disability, which he identified as asthma. Colgate investigated the claims plaintiff asserted in his September 2006 letter, and at the conclusion of its investigation, deemed plaintiff's accusations unfounded.
On December 26, 2006, plaintiff filed the complaint that is the subject of this appeal. The complaint alleged the same facts plaintiff asserted in his September 5, 2006 letter to Colgate, but added one event suggesting a claim for age discrimination, which was set forth in the twelfth paragraph. In relevant part, plaintiff's complaint alleged:
5. Interviews were scheduled for the plaintiff and others. There were four people conducting the interviews: JoAnn Murphy, who was identified as the hiring manager, and three other Colgate employees: Anthony Nuzzo, Frank Lynch, and Latasha Kempadoo.
6. Towards the end of December 2005, JoAnn Murphy announced who Colgate had chosen to hire. Plaintiff was not one of them, even though he was considered one of the best members of the group, better qualified than some of his colleagues that Colgate hired, and had made substantial contributions to the company that exceeded that of some of his colleagues. She also stated that those not hired would be considered for the other positions in the Morristown and New York locations.
7. One of plaintiff's colleagues, Ayman Mohommed, was asked to interview in New York, and was hired to work there, but plaintiff was not even given the opportunity to interview for that position.
8. Plaintiff has a disability. He has asthma, and a sensitivity to tobacco smoke. His sensitivity is to the degree that even the odor of tobacco smoke on someone's clothing could cause him to become symptomatic.
12. After plaintiff's employment was terminated, he called the telephone previously assigned to him, and learned that one of his former and younger colleagues had replaced him.
13. Plaintiff was a member of a protected class, and engaged in protected activity. Plaintiff alleges that the defendant Colgate engaged in unlawful employment practices and discriminated and retaliated against him through its employment and hiring practices.
As is evident, plaintiff's complaint did not identify the nature of the discriminatory acts for which plaintiff sued Colgate. Instead, plaintiff alleged broadly that Colgate had "discriminated and retaliated against him through its employment and hiring practices." The complaint also failed to identify either Colgate or Transnet as his employer, alleging only that plaintiff was a "contractor" who performed work "exclusively" for Colgate.
In November 2007, during the pretrial discovery period, plaintiff moved to compel Colgate to answer interrogatories. His supporting certification stated, for the first time, that his causes of action against Colgate included LAD and CEPA violations "based on age, disability, . . . failure to accommodate, disparate treatment, [and] hostile work environment." Plaintiff certified that although his "complaint presently does not perfectly plead each [such] allegation, it [was his] intention to amend the [c]omplaint to make it conform to the evidence as may be needed." At no time prior to the scheduled discovery end date of June 5, 2008, did plaintiff seek leave to amend the complaint.
At the hearing on plaintiff's motion to compel discovery, the judge asked Colgate how many of the seven Piscataway Help Desk technicians Colgate had hired after Colgate terminated the contract with Transnet. Colgate responded that "six were ultimately hired." Plaintiff was the only individual from the Piscataway Help Desk whom Colgate did not hire. Colgate listed the ages of the individuals ultimately hired in Piscataway as twenty-six, thirty-seven, thirty-eight, forty, twenty-six and forty-eight. Of the eight individuals who applied for the position but were not hired, four were in their thirties, one in his twenties, another in his early forties, and the ages of the remaining two applicants were unknown.
After discovery ended, Colgate moved for partial summary judgment; and on May 9, 2008, the judge granted Colgate's motion, thereby dismissing plaintiff's LAD claims for disability discrimination and failure to accommodate plaintiff's alleged asthma disability. The judge expressly rejected plaintiff's claim that Colgate was a place of public accommodation. A month later, on June 6, 2008, the judge denied plaintiff's motion to extend discovery, reasoning that "Colgate was dismissed from case on summary judgment." Plaintiff appealed both orders.
We affirmed the trial court's grant of partial summary judgment to Colgate, concluding that even when plaintiff's proofs were given an indulgent reading, the evidence in the record could not support plaintiff's claims of discrimination and public accommodation. Liebeskind v. Colgate-Palmolive Co., No. A-5054-07 (App. Div. June 11, 2010) (slip op. at 5-7). We also affirmed the judge's conclusions that the evidence did not support the existence of a disability under the LAD, and that Colgate had not perceived plaintiff as suffering from a disability. Id. at 3. We stated:
[E]ven if we assume . . . that asthma can constitute a disability under the LAD, and even if we accept plaintiff's claim that his medical records indicate that he had asthma, we cannot overlook his failure to provide a report from a medical ...