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Luis Paulino v. Merrill Lynch

October 4, 2012

LUIS PAULINO, PLAINTIFF-APPELLANT,
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH INC., A/K/A MERRILL LYNCH & CO., INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9397-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2012

Before Judges Sabatino and Fasciale.

Plaintiff Luis Paulino appeals from an order granting summary judgment to Merrill Lynch, Pierce, Fenner & Smith, Inc., a/k/a Merrill Lynch & Co., Inc., (defendant) dismissing his complaint alleging race and national origin employment discrimination, hostile work environment, and retaliatory discharge, in violation of the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49. We affirm.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "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). Viewed most favorably to plaintiff, the summary judgment record established the following facts.

Plaintiff, an immigrant from the Dominican Republic, worked for defendant as a machine operator at defendant's facility in Piscataway for approximately eleven and a half years. He received a raise nearly every year and a bonus every year, including a month before he was laid off.*fn1 In August 2008, Bank of America acquired defendant and, as a result, defendant commenced a work-force reduction at the Piscataway location. In January 2009, defendant notified plaintiff that his position would be eliminated effective March 27, 2009 as part of the reduction. Although plaintiff did not work for defendant after January 2009, defendant paid him full wages and benefits through June 28, 2009. By November 2010, defendant closed the facility.

In April 2005, plaintiff and sixteen other individuals had filed a lawsuit (the 2005 lawsuit) against defendant.*fn2 In November 2008, the court severed the 2005 lawsuit, requiring that each individual file a new complaint. The severance order required that each complainant "set[] forth [in the new complaints] the allegations that only he or she has [against defendant]," and that each new complaint "shall be deemed to have been filed as of the filing date of [the 2005 lawsuit], which is April 29, 2005." In November 2009, plaintiff filed his complaint (the 2009 complaint) against defendant.

To support his claims of discrimination, hostile work environment, and retaliatory discharge, plaintiff alleged that defendant (1) denied him light duty work in the aftermath of a 2002 back injury; (2) changed his 2003 midyear performance evaluation by adding unfavorable ratings; (3) issued him disciplinary warnings for failure to perform work; (4) issued him a lower raise in 2005 compared to non-Hispanic employees;(5) failed to issue a raise with corresponding grade level changes; (6) issued a rating change on his 2005 performance evaluation; (7) gave a lower raise to him than to those at lower pay levels; (8) allowed a supervisor to yell at him in August 2006; (9) denied him a promotion to a quality control position; (10) criticized his attitude in November 2007; (11) issued him an unfair performance evaluation in 2007; (12) issued a warning to him in 2008 for attempting to recruit other employees to make complaints against supervisors; and (13) terminated him.

In April 2011, defendant moved for summary judgment and argued that plaintiff's claims under the LAD were time-barred; that plaintiff failed to establish a prima facie case of employment discrimination, hostile work environment, and retaliatory discharge; and that plaintiff failed to take advantage of its anti-discrimination policies and complaint procedures.

The judge conducted oral argument, granted defendant's motion, and issued a comprehensive fifteen-page written opinion dated August 17, 2011. The judge meticulously addressed each of plaintiff's thirteen allegations separately, rather than considering them as a pattern of discriminatory conduct, and concluded that plaintiff failed to establish a prima facie case of employment discrimination, hostile work environment, or retaliatory discharge. This appeal followed.

On appeal, plaintiff argues that the judge erred by failing to (1) consider "all of the evidence together" as a pattern of discriminatory conduct, rather than addressing each alleged incident separately; and (2) view the evidence in the light most favorable to him. Defendant maintains that plaintiff's claims are time-barred and plaintiff failed to establish a prima facie case under the LAD.

At the outset, we reject defendant's contention that plaintiff's employment claims are time-barred. Although LAD claims are typically subject to a two-year statute of limitations, see Montells v. Haynes, 133 N.J. 282, 292-93 (1993), an exception exists where a plaintiff is subject to a pattern of discriminatory conduct, see Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 6-7, 23-24 (2002) (involving a hostile work environment claim);*fn3 see also Alexander v. Seton Hall Univ., 204 N.J. 219, 235 (2010) (holding that "[e]ach payment of . . . discriminatory wages . . . constitutes a renewed separable and actionable wrong that is remediable under the LAD"). Under the "continuing violation" doctrine, a plaintiff "may pursue a claim for discriminatory conduct if he or she can demonstrate that each asserted act by a defendant is part of a pattern and at least one of those acts occurred within the statutory limitations period." Shepherd, supra, 174 N.J. at 7. Giving plaintiff all favorable inferences that the alleged ...


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