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Carey v. NMC Global Corp.

Superior Court of New Jersey, Appellate Division

August 26, 2013

M. DAVID CAREY, Plaintiff-Appellant,
v.
NMC GLOBAL CORPORATION, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 26, 2013

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2182-10.

Paul Castronovo argued the cause for appellant (Castronovo & McKinney, attorneys; Mr. Castronovo, of counsel and on the brief).

Joseph C. DeBlasio argued the cause for respondent (Giordano, Halleran & Ciesla, attorneys; Mr. DeBlasio, of counsel and on the brief; Curtis G. Fox, on the brief).

Before Judges Messano, Lihotz and Kennedy.

PER CURIAM

Plaintiff M. David Carey appeals from the grant of summary judgment dismissing his disability discrimination complaint against his former employer, NMC Global Corporation ("NMC"). NMC's motion was predicated upon a release plaintiff signed on the day he was terminated, which was his first day back at work after a two-month long medical leave. The Law Division held that plaintiff signed the release knowingly and voluntarily. We reverse because there existed genuine issues of material fact that should not have been resolved on summary judgment.

I.

Our review of a motion court order granting or denying summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts viewed in a light most favorable to plaintiff. Plaintiff, a high school graduate, was employed as a dispatcher at NMC from July 23, 2007 to February 1, 2010. Prior to working at NMC, he worked as an inspector, dispatcher, terminal operator, and loss control supervisor in the petroleum industry for fifteen years. His job duties as a dispatcher for NMC included: dispatching job responsibilities to field staff; coordinating lab and field activity; monitoring days off and hours (overtime); updating "dispatch" and clients; monitoring performance/compliance of field staff; "checking in" paperwork; entering reports into system; assisting with training; assisting with supply inventory; and working in the field as needed.

Plaintiff claims that, while employed at NMC, he was diagnosed with pneumonia, which led to his authorized, unpaid disability leave, beginning December 21, 2009. He returned to work on February 1, 2010, at which time he was terminated. On the day plaintiff returned from disability leave, Joe Denney, the office manager, and Mahmoud Shwket, vice president of NMC, met with plaintiff and informed him that he was being fired immediately because NMC had replaced him while out on disability leave.

During the discharge meeting, Shwket gave plaintiff a Separation and Release Agreement (the Agreement) for plaintiff to sign. According to plaintiff, Shwket presented the Agreement and explained that he could either sign the Agreement and receive two weeks' additional pay, or choose not to sign it and receive no additional pay. However, either way, his employment was terminated.

When plaintiff received the Agreement, he recognized it as a "legal document, " but did not read each page of the Agreement before signing it. He claimed that he was "given" five minutes to sign the agreement, and neither sought nor was given any opportunity to negotiate its terms. He never asked about the contents of the Agreement, and did not ask Shwket or Denney to explain anything in the Agreement. Nonetheless, he initialed each page of the Agreement, and executed the signature block on the last page.

The Agreement contained a waiver and release of claims, and the following acknowledgment, which plaintiff read in its entirety:

16. EMPLOYEE'S ACKNOWLEDGEMENT. EMPLOYEE ACKNOWLEDGES AND WARRANTS THAT HE IS SIGNING THIS AGREEMENT OF HIS OWN FREE-WILL, KNOWINGLY AND VOLUNTARILY, AND THAT HE HAS NOT BEEN COERCED OR THREATENED IN ANY MANNER. EMPLOYEE AGREES THAT HE FULLY UNDERSTANDS IT TO BE A FINAL AND BINDING SEPARATION AND RELEASE AGREEMENT.

Plaintiff did not consult with an attorney before signing the Agreement. Shwket and Denney did not encourage or advise plaintiff to get an attorney before signing the Agreement.

Plaintiff was given a copy of the signed Agreement to take home with him. After he got home, he read the entire Agreement, and concluded that he should have taken it to an attorney before signing. He met with an attorney a few days later.

On February 5, 2010, plaintiff wrote a letter to Shwket, which stated:

I have thought things over and I don't want to accept the two weeks of severance pay offered to me on Monday. I did not know until today that I had the right to talk to an attorney before signing the contract you placed in front of me on Monday.
Please do not deposit the two weeks' pay in my bank account. I don't authorize NMC Global to deposit that money into my account and I don't accept the terms of the severance package you offered to me on Monday.

On that same date, Plaintiff sent a letter to NMC's Parlin office, in which he wrote:

Please do not deposit my two weeks' pay for the pay period ending February 14, 2010 into my bank account. I don't authorize NMC Global to deposit that money into my account and I don't accept the terms of the severance package offered to me Monday.

On February 14, 2010, despite plaintiff's explicit instruction, NMC deposited the money directly into his bank account, and plaintiff was unable to reject the payment because it was transferred electronically. On February 18, 2010, plaintiff sent a check to NMC returning the entire amount deposited in his account.

By way of broader background, in December 2009, NMC came to believe that one of its employees, Zeeshan Amin, was planning to start a competing business by using NMC's confidential information. Amin was discharged, and signed a Separation and Release Agreement, in which he allegedly identified plaintiff as one of the parties in the prospective new business. However, Amin produced no documents to support this allegation against plaintiff, and later explicitly ...


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