HENRY H. THOMAS, Jr., Plaintiff-Appellant,
PRINCETON UNIVERSITY, ANNE ST. MAURO, and MARK BURSTEIN, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2013
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2468-09.
William J. Koy argued the cause for appellant (Law Firm of William J. Koy, attorneys; Mr. Koy, on the brief).
Thomas J. Barton argued the cause for respondents (Drinker Biddle & Reath, attorneys; Mr. Barton and Maria L. H. Lewis, on the brief).
Before Judges Parrillo, Sabatino and Fasciale.
In this employment case alleging age discrimination and various common-law claims, plaintiff appeals from an April 1, 2010 order dismissing five counts of his complaint pursuant to Rule 4:6-2(e), and an August 31, 2012 order granting summary judgment to defendants on the remaining counts. We affirm and reverse in part regarding the April 2010 order, and remand and direct the court to make findings of fact and conclusions of law pertaining to the August 2012 order.
In 2003, Princeton University (Princeton) hired plaintiff to act as a construction manager regarding the Lewis Library building. Princeton initially indicated to plaintiff that "[t]he position is a term position until February 2007." Although he started out with a specified term of employment, Princeton extended plaintiff's term of employment several times due in part to his favorable performance reports and incomplete status of the library project.
Plaintiff's 2004 staff performance appraisal indicated that he was "a conscientious project manager and is committed to solid achievement in leading the management of the Science Library, a very complex and challenging assignment." In 2005, plaintiff received a rating of "highly effective" in most categories. The 2005 appraisal stated that he "continues to meet the challenges presented on the Science Library project. His resourcefulness and resilience to changes on the project are exemplary. [Plaintiff] is an accomplished, highly effective senior project manager." In 2006, he received a similarly positive appraisal. In 2007, Princeton gave plaintiff a rating of "highly effective" in most categories and stated that he "continues to be a valuable member of our office." In 2008, plaintiff received marks of "exceptional" and "highly effective" and his supervisor noted: "This past year, [plaintiff] has successfully completed the Lewis Library project, one of the most technically complex and challenging construction projects in the University's history. Job well done!" In addition to these documented work-related expressions of praise, Princeton gave plaintiff salary raises amounting to 3.5%.
Plaintiff alleged his supervisors represented to him that he would remain employed at Princeton in some capacity. For example, he contends that in 2008, Anne St. Mauro — plaintiff's then-supervisor — told plaintiff that there would be future projects for him. In April 2008, defendant Mark Burstein, Princeton's executive vice president, allegedly reassured plaintiff, that "[y]ou have absolutely nothing to worry about, there's going to be plenty of work here for you at Princeton, we've got lots to work on." In August 2008, Mike McKay, who was St. Mauro's boss, congratulated plaintiff on what he had accomplished on the Lewis Library project and told him that Princeton planned to have him continue to work on other projects.
In October 2009, however, Princeton terminated plaintiff. St. Mauro testified at her deposition that she had made the decision to terminate plaintiff, not based on plaintiff's performance or skills, but rather because of budgetary cutbacks and fewer available projects. Nevertheless, plaintiff testified at his own depositions that St. Mauro expressed to him on numerous occasions that she was hoping older people would retire so she could hire younger people and referred to another employee she wanted to leave as "one of those old guys."
In September 2009, plaintiff filed his complaint against Princeton, St. Mauro, and Burstein (collectively "defendants"). He alleged breach of contract (Count One), breach of covenant of good faith and fair dealing (Count Two), negligent misrepresentation (Count Three), promissory estoppel and detrimental reliance (Count Four), age discrimination (Count Five), defamation/slander (Count Six), tortious interference with plaintiff's economic gain (Count Seven), retaliation (Count Eight), and intentional infliction of emotional distress (Count Nine).
As further evidence of age discrimination, plaintiff produced a spreadsheet showing that from July 1, 2002 through September 1, 2011, there were seventy-nine term appointments or extensions and, of those, three were terminated due to "end of term." Those three employees were aged sixty-four, sixty-one, and sixty. Plaintiff alleged that since his termination, within Princeton's Department of Design and Construction, there have been zero terminations due to "end of term"; twenty-one term extensions; one promotion to project manager; one "new hire" as "term" employment to project manager; and two changes to "regular" status in lieu of extension. Plaintiff claims that out of twenty-one similarly situated employees, only the oldest two, one of which was plaintiff, were not renewed or placed elsewhere.
Plaintiff alleged that in January 2011, Princeton hired a fifty-five-year-old field manager to replace him. And, he asserts that in February 2011, Princeton gave a salary increase to a thirty-eight-year-old, who Princeton promoted to project manager, a position plaintiff alleges he was qualified to perform. Plaintiff maintains that a construction or field manager and a project manager are both "Grade A positions" with similar salaries.
In December 2009, a Law Division judge (the first judge) granted defendants' Rule 4:6-2(e) motion and dismissed Counts One, Two, Seven, Eight and Nine of plaintiff's complaint. In August 2012, a different Law Division judge (the second judge) granted summary judgment and dismissed the remaining counts of the complaint without issuing findings of fact or conclusions of law. This appeal followed.
On appeal, plaintiff argues that the first judge erred by applying the wrong standard on defendants' Rule 4:6-2(e) motion. He also contends that, at a minimum, we should remand for the second judge to provide findings of fact and ...