DAVID F. CALABOTTA, Plaintiff-Appellant,
PHIBRO ANIMAL HEALTH CORPORATION, DEAN J. WARRAS, and DANIEL A. WELCH, Defendants-Respondents.
May 13, 2019
appeal from the Superior Court of New Jersey, Law Division,
Bergen County, Docket No. L-1979-17.
Kathryn Kristine Mc Clure and Mary Anne Sedey (Sedey Harper
Westhoff, PC) of the State of Missouri bar, admitted pro hac
vice, argued the cause for appellant (Smith Eibeler, LLC, and
Mary Anne Sedey, attorneys; Kathryn K. Mc Clure and Mary Anne
Sedey, of counsel and on the briefs; John D. Lynn (Sedey
Harper Westhoff, PC) of the State of Missouri bar, admitted
pro hac vice, of counsel and on the briefs).
Warren Aron argued the cause for respondents (Jackson Lewis
PC, attorneys; Martin Warren Aron, of counsel and on the
briefs; Mary L. Moore and Katerina Rose Mantell, on the
Edward Burden argued the cause for amicus curiae NELA-NJ
(Smith Mullin, PC, attorneys; James Edward Burden, on the
Patrick Flynn argued the cause for amicus curiae ANJMA
(Epstein Becker & Green PC, attorneys; James Patrick
Flynn, of counsel and on the brief; David Wayne Garland, on
R. Michael, Deputy Attorney General, argued the cause for
amicus curiae the Attorney General of New Jersey (Gurbir S.
Grewal, Attorney General, attorney; Jason Wade Rockwell,
Assistant Attorney General, of counsel; James R. Michael, on
Judges Sabatino, Sumners and Mitterhoff.
lawsuit is brought by an Illinois resident against his New
Jersey-based former employer. Plaintiff alleges the company
wrongfully denied him a promotion to a position in New Jersey
and thereafter wrongfully terminated him from his job with
its subsidiary in Illinois.
claims the company engaged in "associational"
discrimination against him, in violation of the New Jersey
Law Against Discrimination ("NJLAD"), based on the
fact that his wife was then terminally ill with cancer. The
company maintains it treated plaintiff fairly, that he never
applied for the promotion, and that it justifiably discharged
him for engaging in inappropriate conduct at a trade show.
appeal raises two important and novel questions of law.
under principles of statutory construction, can the NJLAD
protect nonresident workers and job applicants, despite the
fact that the statute's preamble refers to
"inhabitants" of this state?
even if the NJLAD can extend to certain out-of-state
plaintiffs, do choice-of-law principles weigh in favor of
applying the law of Illinois instead to plaintiff's
respective failure-to-promote and wrongful discharge claims?
trial court concluded that Illinois law, rather than the
NJLAD, must apply to plaintiff's claims of discrimination
because he lived in Illinois and worked for defendants'
subsidiary in Illinois. Given that Illinois law has yet to
recognize a cause of action for associational discrimination,
the court granted defendants' motion to dismiss
plaintiff's claims with prejudice.
reasons that follow, we conclude that the NJLAD,
notwithstanding the solitary reference to
"inhabitants" in its preamble, can extend in
appropriate circumstances to plaintiffs who reside or work
outside of this state. However, whether the NJLAD applies to
a particular nonresident's claims turns upon a weighing
of the multiple choice-of-law factors set forth in the
Restatement (Second) of Conflicts of Laws (Am. Law
Inst. 1971) (the "Second Restatement"), as
adopted and construed by the New Jersey Supreme Court.
that New Jersey law, and specifically the NJLAD's ban
against associational discrimination, applies to
defendants' alleged failure to give plaintiff fair
consideration for a promotion to a position in New Jersey.
The Second Restatement factors strongly weigh in
favor of applying New Jersey law, not Illinois law, to this
failure-to-promote claim. We therefore reverse the trial
court's dismissal of that discrete claim.
plaintiff's wrongful discharge claim, we vacate its
dismissal and remand the choice-of-law issue pertaining to
that claim to the trial court for further analysis. We do so
to enable the further development of critical facts bearing
on the Second Restatement factors. Among other
things, the record needs to be developed more fully and
definitively concerning such things as: the location(s) of
the person(s) within the company who took part in the
decision to terminate plaintiff; the sole or dominant place,
if any, that the decision was made; and the location(s) of
plaintiff's conduct that precipitated his discharge.
After those and other facts pertinent to the choice-of-law
analysis are more fully developed, the trial court shall
reassess which state has the "most significant
relationship" overall to plaintiff's wrongful
glean the following facts and allegations from
plaintiff's complaint and related pleadings, mindful that
discovery has not yet been conducted and credibility
determinations have not been made.
Work in Illinois for Phibro's Subsidiary
Phibro Animal Health Corporation ("Phibro"), a
company headquartered in Teaneck, New Jersey, develops and
sells animal food additives. Prince Agri Products
Incorporated ("Prince Agri"), a subsidiary of
Phibro, handles marketing, product management, research,
development, and technical support. Prince Agri's office
is located in Quincy, Illinois, where plaintiff resided at
all times relevant to this case.
2008, Phibro hired plaintiff to serve as a Vice President of
Marketing and Technology Deployment at Prince Agri's
office. He worked in that position at Prince Agri in Illinois
until his termination in 2016.
plaintiff was hired, he signed three employment-related form
agreements: a Noncompetition and Nonsolicitation Agreement,
an Employee Invention Agreement, and a Confidentiality and
Nondisclosure Agreement. All three agreements contained the
THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW JERSEY WITHOUT REGARD FOR CONFLICTS OF LAW
PRINCIPLES. I EXPRESSLY CONSENT TO VENUE IN, AND THE PERSONAL
JURISDICTION OF, THE STATE AND FEDERAL COURTS LOCATED IN NEW
JERSEY FOR ANY LAWSUIT ARISING FROM OR RELATING TO THIS
agreement further stated: "This Agreement does not alter
the status of my employment as an at-will employee of
Dean J. Warras, the President of Prince Agri, was
plaintiff's direct supervisor. Defendant Daniel A. Welch
worked as Phibro's Senior Vice President of Human
maintains that Warras's and Welch's offices were
located at Phibro's headquarters in Teaneck. However, in
connection with defendants' motion to dismiss the
complaint, Warras certified that his own employment was based
out of Prince Agri's office in Illinois, the state where
Warras maintained a primary residence until approximately
at Prince Agri, plaintiff supervised a team of approximately
forty employees who managed existing product portfolios,
identified new products, conducted research on product use
and development, and provided customer and technical support.
According to plaintiff, he consistently received excellent
annual performance reviews. Among other accolades, the
reviews reportedly stated that plaintiff worked
"extremely hard," did an "excellent job,"
"significantly strengthened" his team over the
years, and generated "new credibility and cache in the
industry and academic community" for Phibro's
products. According to plaintiff, Phibro never placed him on
any type of "Performance Management Plan" or
"formally counseled [him] for performance or conduct
Health Issues of Plaintiff's Wife
wife, Beth Calabotta, was diagnosed with breast cancer in
2008. Following a period of remission, Beth's breast
cancer recurred in 2014 and spread to other parts of her
contends he openly discussed Beth's health issues and
prognosis with his co-workers and supervisors. According to
plaintiff, between 2014 and 2016 Warras periodically asked
him questions about Beth's medical condition. Plaintiff
believed that Warras shared the information about his
wife's condition with Welch. Additionally, in May and
June 2016, the Quincy Herald-Whig and the Wall
Street Journal featured Beth in prominent news stories
that discussed her terminal illness.
Reorganization and the New Jersey Position
2016, Warras informed plaintiff that Phibro was reorganizing
its operations and his responsibilities would be reduced
significantly. Under the reorganization, plaintiff would no
longer be responsible for marketing and project management,
and ten to fifteen people would be cut from his staff.
Moreover, plaintiff's title would change to Vice
President, Research and Technical Support.
told plaintiff that Phibro had created a new position based
at Phibro's headquarters in New Jersey for a Senior Vice
President of Marketing and Product Management. According to
plaintiff, he inquired about who would be considered for the
new position, and Warras responded that an independent
recruiting firm would begin interviewing candidates "in
the very near future." When plaintiff asked whether he
would be considered for the new position, Warras allegedly
replied, "I did not think that you would be interested.
The job is in New Jersey and with Beth's situation and
all . . . ."
claims he informed Warras and Welch on multiple occasions
between June and July 2016 that he "should get serious
consideration" for the new Senior Vice President
position, given his marketing and product management
experience at Prince Agri. At one point, Welch allegedly
responded, "I don't know if that is going to
happen." Plaintiff requested from Warras the job
description for the new position. According to plaintiff,
Warras assured him that he would get a copy of it. Warras
also allegedly promised to talk to Phibro's senior
managers about plaintiff's interest in the post.
these alleged assurances, plaintiff was not interviewed for
the new position and was not provided with the job
description. In early July 2016, plaintiff learned that the
recruiting firm had interviewed other candidates for the
position. Plaintiff did not receive the promotion.
July 2016 National Meeting and Plaintiff's Subsequent
July 19 and July 23, 2016, plaintiff and several members of
his team attended a national meeting of the American Dairy
Science Association ("ADSA").
22, 2016, Welch called plaintiff to discuss a "serious
problem" that had arisen at the ADSA meeting during a
presentation made by a member of plaintiff's staff and
how plaintiff had handled the situation. The details of this
incident are not fully explained in the complaint. At the end
of their phone conversation, Welch suspended plaintiff with
pay, "pending further investigation." Plaintiff
claims that, despite his request for details, Welch never
told him what accusations were being investigated.
about August 19, 2016, plaintiff met with Warras and Welch.
They told him that they had "corroborated the
allegations" against him. The complaint does not state
where this meeting took place. Plaintiff again asked what the
allegations were, but he claims he was not given an answer.
He asserts he told Warras and Welch that, "he still
believed he handled the situation [at the ADSA meeting]
appropriately." They disagreed. Ultimately, Welch handed
plaintiff a draft Separation Agreement and terminated his
did not sign the Separation Agreement, which proposed that he
give up his right to sue for claims "arising from or in
any way connected with" his employment and termination,
in exchange for $117, 000 in severance pay. Paragraph 10 of
the unsigned Separation Agreement stated that it "shall
be interpreted for all purposes consistent with the laws of
the State of New Jersey."
maintains that the deliberations among Warras, Welch, and
other senior executives culminating in their decision not to
consider him for the promotional position, and their
subsequent decision to terminate him, all occurred at
Phibro's headquarters in New Jersey. Defendants, however,
have not acknowledged that these decisions and communications
were made in or confined to New Jersey.
to the representations of counsel at the appellate oral
argument, plaintiff applied for and obtained unemployment
compensation from Illinois state authorities following his
discharge. The present record does not reveal whether
plaintiff's unemployment benefits application mentioned
his contention that he was fired for discriminatory reasons.
March 2017, plaintiff filed a complaint in the Law Division
against Phibro, Warras, and Welch. Count one alleges that
defendants discriminated against him in violation of the
NJLAD "on account of his association with a person with
a disability" on two separate occasions: (1) when they
refused to consider him for a promotion in New Jersey, and
(2) when they subsequently terminated his employment. Counts
two and three allege that defendants Warras and Welch aided
and abetted Phibro in violating the NJLAD. Plaintiff seeks
compensatory damages, punitive damages, and statutory
Dismissal of the Complaint and Denial of Reconsideration
moved to dismiss the complaint under Rule 4:6-2(e).
They argued that, even accepting plaintiff's factual
allegations as true, plaintiff has no viable cause of action
under the NJLAD as an Illinois resident who worked for the
company's subsidiary in Illinois.
September 1, 2017, the trial court dismissed the complaint
with prejudice, holding that "[t]he NJLAD does not apply
to employees whose employment is based outside of New
Jersey." The motion judge relied largely on this
court's opinion in Buccilli v. Timby, Brown &
Timby, 283 N.J.Super. 6 (App. Div. 1995), in which we
found that Pennsylvania law, rather than the NJLAD, governed
a New Jersey resident's claims of discrimination by her
Pennsylvania employer for whom she had worked in
moved for reconsideration. He presented to the court, for the
first time, the three employment agreements he signed in 2008
and the unsigned Separation Agreement, all of which stated
that any lawsuits arising out of those documents would be
governed by New Jersey law. Defendants argued these
employment agreements pertained only to discrete subjects and
were not applicable to plaintiff's present discrimination
October 27, 2017, the trial court denied plaintiff's
motion for reconsideration, concluding that the proffered
agreements did not require the ...