NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1392-08.
Steven J. Ahmuty, Jr. (Shaub, Ahmuty, Citrin & Spratt, LLP) of the New York bar, admitted pro hac vice, argued the cause for appellant (McCormick & Priore, P.C., and Mr. Ahmuty, attorneys; Philip D. Priore, Timothy R. Capowski (Shaub, Ahmuty, Citrin & Spratt, LLP) of the New York bar, admitted pro hac vice, Jeremy S. Rosof (Shaub, Ahmuty, Citrin & Spratt, LLP) of the New York Bar, admitted pro hac vice, and Mr. Ahmuty, Jr., on the brief).
David J. Kenny argued the cause for respondent (Hartsough Kenny Chase & Sullivan, attorneys; Mr. Kenny, of counsel and on the brief; Gregory J. Sullivan, on the brief).
Before Judges Sabatino, Fasciale and Maven.
Defendant Saker ShopRites, Inc. ("Saker") appeals from a final judgment entered in favor of plaintiff Tina Shipe after a jury found that Saker had wrongfully discharged plaintiff because of her female gender, in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. For the reasons that follow, we reverse the jury's finding of liability and its awards of emotional distress damages and front pay, and remand for a new trial on those issues. However, we affirm the jury's award of back pay, contingent upon the outcome of the new trial regarding liability.
This matter returns on appeal a second time. In June 2011, we reversed the trial court's grant of summary judgment to Saker, upon determining that plaintiff had established a prima facie case of gender discrimination. Shipe v. Saker ShopRites, Inc., No. A-1317-10 (App. Div. June 29, 2011). The Supreme Court denied defendant's petition for certification. 208 N.J. 601 (2011). The case accordingly was remanded to the Law Division for a jury trial, which took place over several days in April 2012.
We derive the following pertinent facts from the trial record, without prejudice to the parties amplifying their proofs at a second trial.
Plaintiff initially began working at a ShopRite supermarket in Hamilton in March 1991 in a job described as a "meat wrapper." She eventually applied to become a "meat cutter, " and was selected to begin the requisite four-year apprenticeship program for that position under the oversight of a journeyman butcher. After successfully completing her apprenticeship, as well as passing a test of her skills, plaintiff was elevated to a meat cutter in 2001.
As a meat cutter, plaintiff worked at multiple ShopRite locations. At various times she served as an assistant meat manager at a ShopRite in Hamilton and also as a meat manager at a Pennington ShopRite. Plaintiff also was a union shop steward for a period of time.
In July 2007, plaintiff took a medical leave from her meat cutter position at the Hamilton ShopRite, where she had then been working. She underwent carpal tunnel surgery that same month.
During the interval between plaintiff's July 2007 surgery and her January 2008 return to work, Saker purchased the Hamilton ShopRite. Saker operates twenty-nine ShopRite supermarkets in central New Jersey. As part of Saker's acquisition of the Hamilton store, Saker entered into a Memorandum of Agreement ("MOA") with the labor union representing the Hamilton ShopRite's employees. The MOA provided that all active employees of the Hamilton store, including plaintiff, would become "new hires" of Saker, leaving their seniority, pay, and benefits intact. In exchange, the union agreed that these persons designated as new hires be subject to a sixty-day probationary period. The record indicates that plaintiff was the only female meat cutter at any of Saker's stores.
Following her recovery from surgery, plaintiff returned to work on January 15, 2008, reporting that day to the Hamilton ShopRite. She initially worked in Hamilton for about a week, but was then assigned back and forth between the Saker ShopRites in Bordentown and Pennington. According to plaintiff's testimony, she was thereafter "shipped to Bordentown to basically be permanent."
When plaintiff arrived at the Bordentown ShopRite for the first time, she was unable to punch in to begin her shift. To overcome that problem, plaintiff sought assistance from Richard Trojan, the store director, and she asked if he could assist her in signing in. She testified as to how Trojan responded: "I tried to introduce myself and [Trojan] just turned around and was kind of nasty to me and looked and said [']I don't have [the card needed to access the system.'] When I went to extend my hand to shake his [hand] he just looked at me and walked away." Plaintiff eventually obtained assistance in signing in that day from a female assistant manager.
On that same day, plaintiff also met Chris Antimary, the manager of the Bordentown meat department. Although Antimary initially "seemed pretty friendly" to her, plaintiff did not appreciate the fact that Antimary persistently called her "dude." Plaintiff testified that, as the only female butcher employed by Saker, she was treated differently at Bordentown than the male butchers. In particular, she claimed that, unlike the males, management gave her assignment lists and also imposed restrictions on when she could take her lunch.
According to plaintiff, on her arrival for work at the Bordentown store on January 25, 2008, she was immediately pulled aside by Antimary and taken into the back room. As plaintiff described it:
He pulled me in the backroom . . . and he turned around and [talked] to me about not speaking with another meat cutter who was there named Bob Joiner. Now Bob Joiner I know . . . because I worked with Bob before. [Antimary] just kept telling me ["]don't talk to him, don't speak with him.["] He told me ["]I don't know why these people don't want to work with you.["] I says ["]I don't know either . . . I never did - . . . they don't know me.["]
And then [Antimary] turned around and said something weird about me being the black sheep[, ] and [that] I was stealing his shine because he was the black sheep before that.
Plaintiff further testified that on the same day when she returned from her lunch break, "Trojan was in the room hollering about the hamburger[.] . . . He said[, ']where's that girl?['] And . . . he was going on . . . that I made too much hamburger." However, Trojan apparently did not discuss this concern about the hamburger meat with plaintiff. Plaintiff next worked on Sunday, January 27, apparently without incident.
The key events that resulted in plaintiff's discharge occurred on Monday, January 28, 2008. Plaintiff arrived at work that day at 11:00 a.m. According to plaintiff, prior to coming to work that day she had called her union representative, Edna Inge, "because [she] felt that [the staff] w[as] targeting [her] just from the little things that [she] noted over the two weeks since [she had] started with them." Inge accordingly instructed plaintiff to make notes of what she said or did at work.
When plaintiff arrived for her shift on January 28, Antimary, along with another meat cutter named Doug Cathcart, were already in the meat area. Plaintiff testified that the cutting room appeared to not have been used since the night before when she worked. Antimary came into the meat room shortly thereafter. According to plaintiff, at that point "somebody pok[ed] their head in the door saying [']it's time.[']" Antimary then momentarily left and went to Trojan's office. He then returned and asked plaintiff to go back to Trojan's office with him. In the office were Antimary, Trojan, and Joan Pinto, the deli and food services manager.
At the meeting in Trojan's office, Trojan accused plaintiff of improperly performing her duties in two ways. First, he asserted that she had placed the veal stew into incorrect "boats, " as contrary to company policy. At trial, plaintiff contended that this accusation was unfair. She explained that she had used the same boats throughout her years of employment in other ShopRite stores, "and no one complained about it then." She also asserted that she was never informed of a company policy stating otherwise.
According to plaintiff, the other criticism brought up at the meeting in Trojan's office was in regard to "a chuck steak that was boated and put into the [display] case[.]" The steak in question was apparently not of the necessary quality to be displayed. The testimony from the defense witnesses, as well as an internal company document entitled "Record of Conversation" presented at trial, indicated that defendant's particular concern about the steak was over bone dust that was visible on the meat. Plaintiff's trial testimony acknowledged that the disputed piece of meat had bone dust on it, but plaintiff also emphasized her perception that the meat was bad because it was green. As she explained, "you could still see the fat and bone dust from the can on the bottom and the green. And they told me that I did that. And I said [']no, I did not. I cut the chuck steak, but that particular piece of meat was thrown away.[']"
Plaintiff's theme at trial was that she had been, in effect, "set-up" in the meeting at Trojan's office. According to her testimony, Antimary "kept hitting [her] leg with his leg and [she] kept looking at him while [Trojan] was trying to explain the [veal policy]. And [Antimary] kept pointing his head over to [the] cooler" where the erroneously packaged meat was located. Despite plaintiff's assertion that she was not responsible for displaying the bad meat, she was allegedly told that it must have been her because she was the only person there the night before. Plaintiff testified: "I don't know what happened between the time that I left and when I came in, but I know I did not do that piece of meat." In support of her position, plaintiff also contended that it was common for her to discard pieces of meat that were not usable.
Plaintiff testified that the meeting made her feel like she "was being picked on" by her employer because "[a]fter all these years doing a job" she was now "being told [she didn't] know how to do [her] job." Plaintiff further explained, referring to herself, "I pride myself on everything I did . . . after all these years people who [didn't] know me [were] tell[ing] me [I'm] wrong." She refused to sign the written Record of Conversation that had been developed by the employer's representatives from the meeting.
When the meeting in Trojan's office ended, plaintiff became upset and went back into the meat room. At that point, plaintiff was confronted by Antimary, who, by her account, "got into [plaintiff's] face . . . and said that [']you know you cut it, you know [it] . . . . [Y]ou were the only one here. Why don't you admit to it[?']" According to plaintiff, when Antimary was saying these things to her, he was "nose to nose" with plaintiff "as if some sort of . . bully ...