BROWN-MARSHALL v. ROCHE DIAGNOSTICS CORPORATION et al
Filing
64
OPINION. Signed by Judge Renee Marie Bumb on 7/19/13. (dd, )
NOT FOR PUBLICATION
[Docket No. 36]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
CARMEN BROWN-MARSHALL,
Civil No. 10-CV-5984
Plaintiff,
(RMB-JS)
v.
ROCHE DIAGNOSTICS CORP.,
MICHAEL DeFEO,
Defendants.
OPINION
David Zatuchni
Zatuchini & Associates, LLC
287 South Main Street
Lambertville, NJ 08530
Attorneys for Plaintiff
Susan L. Nardone
Gibbons P.C.
One Gateway Center
Newark, NJ 07102
Kenneth Yerkes
Barnes & Thornburg LLP
11 South Meridian St.
Indianapolis, IN 46204
Attorneys for Defendants
BUMB, United States District Judge:
Plaintiff Carmen Brown-Marshall (“Plaintiff”) asserts
claims under the New Jersey Law Against Discrimination (“LAD”)
for racial discrimination, age discrimination, and retaliation
1
against Defendants Roche Diagnostic Corp. (“Roche”) and Michael
DeFeo (“DeFeo”) (collectively, the “Defendants”).
have moved for summary judgment.
Defendants
For the reasons that follow,
Defendants’ motion for summary judgment is GRANTED, in part, and
DENIED, in part.
I.
Background1
A.
Plaintiff’s Employment History And Bankruptcy Filing
Plaintiff was hired by Roche on January 8, 2006 to serve as
an Account Manager in the Philadelphia region.
In that
position, Plaintiff was charged with managing Roche’s existing
clients in the region and developing new business.
A year and a
half after Plaintiff was hired, on June 27, 2007, Defendant
DeFeo became the Regional Business Manager for the Philadelphia
region and Plaintiff’s supervisor.
The next year, in 2008, Roche underwent a reorganization
and Plaintiff was assigned to the newly created position of
“Account Executive.”
In that position, Plaintiff’s duties
differed in that she was now primarily responsible for
generating new business, as opposed to managing existing
relationships.
1
Defendants argued that Plaintiff failed to set forth admissible
evidence in opposition to their motion because Plaintiff’s
certifications accompanying her opposition failed to comply with 28
U.S.C. § 1746.
This Court disagrees. Plaintiff’s certifications each
“certif[ied] that the foregoing statements are true” and that the
affiants understood that if they “made any statements that are
knowingly false,” they would be “subject to punishment.” Such
statements are sufficient to satisfy 28 U.S.C. § 1746. Scott v.
Calpin, No. 08-4810, 2012 WL 3019955, at *1 n.1 (D.N.J. July 24, 2012).
2
In March 2009, Plaintiff filed a complaint with the Equal
Employment Opportunity Commission asserting that she had been
discriminated against based on her age and nationality.
In
April 2009, the EEOC concluded that Plaintiff had failed to
establish a prima facie case of discrimination.
On May 16, 2009, Plaintiff filed for bankruptcy with the
United States Bankruptcy Court for the District of New Jersey
(the “Bankruptcy Court”).
On July 10, 2009, her bankruptcy plan
was confirmed.
Plaintiff was placed on a performance improvement plan (the
“PIP”) on August 10, 2010 by DeFeo.
The PIP required Plaintiff
to, among other things, improve her communication with coworkers and colleagues.
The PIP was instituted following issues
with two clients and a potential client.
The first issue
revolved around Plaintiff’s conduct with respect to a
prospective client, Clara Maass Medical Center.
Plaintiff’s
team believed Clara Maass was scheduled to do a site visit to
Holy Spirit Hospital.
Hospital.
Clara Maass instead visited Englewood
It was important to Roche that Clara Maass visit Holy
Spirit Hospital, and not Englewood Hospital, because Holy Spirit
had, and Englewood lacked, certain equipment that Roche wished
to demonstrate to Clara Maass. However: (1) on April 20, 2010,
Plaintiff scheduled a site visit for Clara Maass to visit
Englewood Hospital on April 30, 2010; (2) on April 23, 2010,
3
Plaintiff told team members that she had scheduled Clara Maass
to visit Holy Spirit Hospital on April 30, 2010; (3) on April
29, 2010, Plaintiff informed her team that the visit to Holy
Spirit, scheduled for the next day, had been cancelled; and (4)
on April 30, 2010, Clara Maass visited Englewood Hospital. When
queried by Area Director Thomas Fernandes (“Fernandes”) as to
when she first learned that Clara Maass would be visiting
Englewood, Plaintiff indicated that she had only learned that
Clara Maass intended to visit Englewood, and not Holy Spirit, as
of April 29, 2010.
She also indicated that she merely
accompanied Clara Maass on the visit because it would have
otherwise conducted the site visit on its own, and that the
details of the visit were only finalized on the 29th.
Plaintiff
did not explain that she had previously scheduled the Englewood
visit.
Plaintiff does not dispute that she did not clear the
Englewood visit in advance with her own team, or even mention it
to them.
She had, however, contacted two other Roche officials
to approve the visit, in advance of the visit – one of whom it
appears Plaintiff erroneously believed was the Account Executive
for Englewood.
Plaintiff now claims that she only scheduled the
Englewood site as a back-up because of her awareness that Clara
Maass was reluctant to drive the greater distance to Holy
Spirit.
Plaintiff submits that she first became aware of Clara
4
Maass’ reluctance to visit Holy Spirit several weeks prior to
the scheduled visit.
As to the second issue, Plaintiff had several
communications problems revolving around her account with
Accurate Diagnostics (“Accurate”).
Plaintiff first failed to
inform DeFeo that Accurate had reconsidered its prior decision
to move forward with a Roche competitor.
Accurate subsequently
contacted Fernandes and complained of Plaintiff’s conduct with
it during contract negotiations.
Specifically, Plaintiff had
provided it with a draft proposal that had not been approved by
Roche during the negotiations.
Accurate informed Fernandes that
it wanted Plaintiff removed from any further contract
negotiations.
And Fernandes instructed Plaintiff that DeFeo,
not Plaintiff, would handle all negotiations with Accurate going
forward.
Third, Plaintiff visited another Account Executive’s
client, CLM, without obtaining his prior approval.
On August 13, 2010, just three days after the performance
improvement plan was implemented, Accurate wrote Plaintiff
directly, instructing her not to contact it concerning the still
pending contract negotiations.
Despite this instruction, on
August 17, 2010, Plaintiff e-mailed Accurate asking it how it
wanted to proceed on the proposed deal.
Accurate than forwarded
the August 13, 2010 e-mail to DeFeo informing him that, contrary
5
to its instruction, Plaintiff had contacted it yet again
concerning the contract negotiations earlier that day.
Plaintiff then wrote another e-mail to Accurate on August 19,
2010 concerning the deal.
Accurate again forwarded that e-mail
to DeFeo and Fernandes.
After receiving that e-mail, Fernandes contacted human
resources and the Vice President of Sales, Chad Brown (“Brown”),
recommending that Plaintiff be terminated for her failure to
follow instructions in communicating with Accurate and failure
to follow the performance improvement plan.
Brown agreed that,
based on the circumstances described to him, Plaintiff should be
terminated, but wanted to meet with her before finalizing the
decision.
On August 25, 2010, Brown met with Plaintiff,
discussed the matter with her, and asked her to address it.
Plaintiff offered no defense of her conduct.
2010, Plaintiff was terminated.
On August 26,
While Defendants assert that
DeFeo was not a decision-maker in the decision to terminate
Plaintiff, a handwritten note by DeFeo (Plaintiff’s Exhibit QQQ)
would support a reasonable inference that DeFeo was, in fact, a
decision-maker in this process.
And, because this Court must
afford Plaintiff, the non-moving party, all reasonable
inferences, it affords Plaintiff that inference here.
Following
Plaintiff’s termination, Plaintiff was replaced by a 49 year old
white woman.
6
Plaintiff failed to report any claim based on her
termination to the Bankruptcy Court.
B.
Discriminatory Comments By DeFeo
Plaintiff has put forth evidence that DeFeo has made a
number of discriminatory comments in 2007 and 2008.2
DeFeo made
comments that:
(1)
he did not like working with account executives that
were “long in the tooth”;
(2)
he preferred to work with younger employees;
(3)
his hiring practices would make the sales team look
like “a cheerleading team”;
(4)
he couldn’t work with anybody over 40 years old and
not a good looking woman; and
(5)
that management was going to think his hiring
technique was to create a “harem” in the Philadelphia
region.
C.
This Action
On October 13, 2010, Plaintiff filed suit claiming that her
termination was in violation of LAD because it was motivated by
age (52) and race (African American) and was in retaliation for,
among other things, earlier complaints she had made of
discriminatory treatment by DeFeo. Plaintiff claims that
Defendants’ proffered justification for her termination is pretextual.
2
Plaintiff also claims DeFeo is liable as an aider and
DeFeo denies making these comments. However, because this Court must
adopt the nonmoving party's version of the facts where facts are in
dispute in assessing a summary judgment motion, it credits Plaintiff's
version of the events. See Meyer v. Riegel Prods. Corp., 720 F.3d 303,
307 n.2 (3d Cir.1983).
7
abettor of Roche’s conduct.
Plaintiff’s Complaint demands
punitive damages.
II.
Standard
Summary judgment should only be granted if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.” Mollo v. Passaic
Valley Sewerage Comm'rs, 406 F. App'x 664, 667 (3d Cir. 2011)
(quotation and citation omitted).
When deciding the existence of a genuine dispute of
material fact, a court's role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.” Meyer v. Riegel Prods.
Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, “[t]he
mere existence of a scintilla of evidence,” without more, will
not give rise to a genuine dispute for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In the face of
such evidence, summary judgment is still appropriate “[w]here
the record . . . could not lead a rational trier of fact to find
for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment motions
8
thus require judges to ‘assess how one-sided evidence is, or
what a ‘fair-minded’ jury could ‘reasonably’ decide.'” Williams
v. Borough of W. Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989)
(quoting Anderson, 477 U.S. at 265).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)(internal quotations and
citations omitted). Then, “when a properly supported motion for
summary judgment [has been] made, the adverse party must set
forth specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 250 (internal citations and
quotations omitted).
III. Analysis
Defendants move for dismissal of Plaintiff’s claims on four
grounds.
First, Defendants argue that Plaintiff is barred from
asserting these claims based on judicial estoppel.3
Second,
Defendants argue that all of Plaintiff’s claims fail as a matter
of law.
Third, Defendants argue that the claims against DeFeo
individually must be dismissed because, all of the alleged
3
Defendants also previously raised a standing argument.
has since been mooted.
9
That argument
wrongful conduct was his own, and he cannot be said to have
aided and abetted his own conduct.
Fourth, Defendants argue
that Plaintiff’s claim for punitive damages must be dismissed.
A.
Defendants’ Estoppel Argument
Defendants argue that Plaintiff is judicially estopped from
asserting these claims because Plaintiff was required, and
failed, to report these claims after her bankruptcy.
This Court
disagrees.
While a failure to disclose a claim to a bankruptcy court
may form a basis to judicially estop a subsequent civil suit
based on that claim, judicial estoppel is unwarranted here
because the law is unsettled as to whether Plaintiff’s claims,
which accrued post-confirmation when she was terminated, were
subject to mandatory disclosure.
Florence v. Axis Surplus Ins.
Co., No. 11-2020, 2012 WL 6726692, at *2-3 (W.D. La. Dec. 27,
2012); Byrd v. Wyeth, Inc., 907 F. Supp. 2d 803, 805 (S.D. Miss.
2012); Gilbreath v. Averitt Exp., Inc., No. 09-1922, 2010 WL
4554090, at *9-10 (W.D. La. Nov. 3, 2010); Woodward v. Taco
Bueno Rests., Inc., No. 05-CV-804, 2006 WL 3542693, at *4-12
(N.D. Tex. Dec. 8, 2006).
Accordingly, Defendants’ motion for
summary judgment on this basis is DENIED.
B.
Defendants’ Argument That Plaintiff’s Claims Fail As A
Matter Of Law
10
This Court first addresses Plaintiff’s race and age
discrimination claims.
It then addresses Plaintiff’s
retaliation claim.
1.
Race And Age Discrimination Claims
LAD claims for race and age discrimination both require
that a Plaintiff first establish a prima facie claim.
Hood v.
Pfizer, Inc., 322 F. App’x 124, 127 (3d Cir. 2009)(holding the
above with respect to racial discrimination under LAD); Kremp v.
Wachovia Bank, N.A., 451 F. App’x 151, 155-56 (3d Cir.
2011)(holding the same with respect to age discrimination under
LAD).
To make out a prima facie case of discrimination, a
plaintiff must put forth evidence that: (1) the plaintiff is a
member of a protected class; (2) is qualified for the position;
(3) was fired from the position; and (4) under circumstances
that give rise to an inference of unlawful discrimination.
Taylor v. Amcor Flexibles, Inc., 507 F. App’x 231, 233 (3d Cir.
2012)(race); D’Alessandro v. City of Newark, 08-1886, 2010 WL
4929246, at *7 (D.N.J. Nov. 29, 2010)(age).
With respect to the
second prong, all that is necessary to make out a prima facie
case is evidence that the plaintiff “was actually performing the
job prior to the termination.”
Hayes v. Furniture Brands
Inter., No. 06-1688, 2008 WL 3821777, at *3 (D.N.J. Aug. 12,
2008).
With respect to the fourth prong, that prong may be
established: (1) in the wrongful discharge based on race
11
context, by evidence that the position was filled by a person
outside of the protected class; and (2) in the wrongful
discharge based on age context, by evidence that the position
was filled by a person sufficiently younger to support an
inference of discrimination.
Sheridan v. E.I. DuPont de Nemours
and Co., 100 F.3d 1061, 1066 n.5 (3d Cir. 1996)(race). Smith v.
City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009)(age).
Once a Plaintiff makes out a prima facie claim, the burden
shifts to the defendant to advance a legitimate basis for its
actions.
56.
Hood, 322 F. App’x at 127, Kremp, 451 F. App’x at 155-
Where a defendant advances a legitimate justification, the
burden shifts again to the plaintiff to demonstrate that the
advanced rationale was pre-textual.
Id. To do so, the Plaintiff
must “point to some evidence upon which a factfinder could
reasonably either disbelieve [the defendant’s] articulated
motive or believe that” an improper motive was more likely than
not the motivating cause for the defendant’s action.
Id.
(holding the above with respect to age discrimination claims).
A plaintiff attempting to discredit the employer’s proffered
reason “cannot simply show that the employer's decision was
wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.”
Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
12
Fuentes v.
Instead, the
plaintiff “must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of
credence, and hence infer that the employer did not act for [the
asserted] non-discriminatory reasons.”
citation omitted).
Id. (quotation and
“[S]tray [inappropriate] remarks” by non-
decision makers, or by decision-makers unrelated to the decision
making process, carry little weight, particularly if such
remarks were made at a temporally remote time from the date of
the decision at issue.
Kremp, 451 F. App’x at 156.
Here, Defendants do not dispute that Plaintiff is a member
of two protected classes – based on her age and race.
Nor do
they dispute that Defendants suffered an adverse employment
action when she was terminated.
Defendants instead argue that
Plaintiff’s race and age claims fail based on three other
grounds.
First, they argue that Plaintiff failed to show the
second element of a prima facie claim - that she was qualified
for the position.
But there is no dispute that Plaintiff was
actually performing her job duties prior to her termination.
Therefore, Plaintiff has satisfied this element.
Second,
Defendants argue that Plaintiff has failed to show the fourth
element – facts supporting an inference of discrimination.
there is no dispute that Plaintiff was replaced by a white
13
But
employee, who was four years younger.
Because Plaintiff’s
replacement was outside of the protected class, and because
Plaintiff’s replacement was sufficiently younger to support an
inference of discrimination, Plaintiff has satisfied this
element for both her race and age claims.
Bergen Commercial
Bank v. Sisler, 157 N.J. 188, 218 (N.J. 1999)(citing to example
where five years was sufficient); Von Rudenborg v. Di Giorgio
Corp., No. 08-5791, 2011 WL 4594220, at *5 (D.N.J. Sep. 30,
2011)(finding three years sufficient); Sempier v. Johnson &
Higgins, 45 F.3d 724, 729-30 (3d Cir. 1995)(finding replacement
by four year younger and ten year younger workers was, together,
sufficient).
Third, Defendants argue that they have presented a
legitimate basis for her termination – Plaintiff’s performance
issues – and Plaintiff has failed to offer evidence that that
reason was pre-textual.
This Court disagrees.
With respect to
Plaintiff’s age discrimination claim, DeFeo made repeated
remarks that would support a finding that his actions throughout
were motivated by age discrimination.4
4
And, while Defendants
While Defendants argue that DeFeo’s remarks should all be considered
stray remarks, this Court disagrees for four reasons. First, as
discussed above, DeFeo can be considered a decision-maker for purposes
of this motion. And, even if he was not a decision-maker for purposes
of Plaintiff’s termination, he was a decision-maker for the PIP, which
was an integral part of her termination. Second, his remarks relate to
the employment decision at issue, since they were about the replacement
of older workers. Third, given that DeFeo purportedly repeated ageist
remarks several times, they cannot fairly be regarded as “stray.”
14
adduced evidence that Roche would have made the same decision
irrespective of DeFeo, at this stage, DeFeo’s actions cannot be
neatly separated from the ultimate decision to terminate, given
that: (1) the decision to terminate Plaintiff was largely based
on Plaintiff’s placement on a performance improvement plan by
DeFeo; and (2) DeFeo was a decision-maker in the decision to
terminate.
See Staub v. Proctor Hosp., 131 S.Ct. 1186, 1194
(2011)(holding that, where supervisor performs act motivated by
animus that is intended to cause an adverse employment action,
and act is proximate cause of ultimate employment action,
employer may be liable); Lowe v. Medco Health Solutions of
Willingboro, LLC, No. 10-4823, 2012 WL 2344844, at *4 (D.N.J.
June 19, 2012)(applying Staub in LAD context).
With respect to
Plaintiff’s race discrimination claim, because a jury could
believe that age was the Defendants’ motive, it naturally
follows that it could also disbelieve the proffered
justification.
Accordingly, Defendants’ motion for summary judgment on the
race and age discrimination claims is DENIED.
2.
Retaliation Claim
In order to make out a prima facie case of retaliation
under LAD, a plaintiff must show that it: (1) engaged in a
protected activity; (2) suffered an adverse action; and (3) a
Fourth, the remarks are not so temporally remote that they can be
easily dismissed.
15
causal connection exists between the protected activity and
adverse action.
Holland v. Simon Prop. Group, Inc., 495 F.
App’x 270, 272 (3d Cir. 2012).
With respect to the causal
connection prong, a close temporal connection between the
protected activity and the adverse action may be sufficient to
establish this prong.
Watkins v. Nabisco Biscuit Co., 224 F.
Supp. 2d 852, 872-73 (D.N.J. 2002).
But a gap of as little as
three months between the protected activity and the adverse
action, without more, is insufficient.
Hussein v. UPMC Mercy
Hosp., 466 F. App’x 108, 112 n.4 (3d Cir. 2012).
Once a prima
facie case is made, the burden shifts to the defendant to
articulate a legitimate nondiscriminatory reason for taking the
adverse action.
Id. at 112.
If the defendant meets that
burden, the plaintiff then bears the burden of providing that
the defendant’s reason was merely pre-textual, as described
above.
Id.
Here, Defendants dispute: (1) Plaintiff’s ability to
demonstrate a casual connection between her termination and a
protected activity; and (2) Plaintiff’s ability to rebut
Defendants’ proffered justification for Plaintiff’s termination.
Because this Court agrees that Plaintiff has failed to show a
causal connection between protected activity and her
termination, it does not address Defendants’ second ground for
dismissal.
With respect to the causal connection requirement,
16
Plaintiff has simply submitted no evidence of a casual
connection, as required.5
Accordingly, Plaintiff’s retaliation
claim is DISMISSED.
C.
Aiding And Abetting Claim
Defendants argue that DeFeo cannot be liable based on an
aider and abetter theory, since, by Plaintiff’s account, DeFeo
was the principal wrongdoer.
While a number of courts within
this District have agreed with Defendants’ argument6, those
courts did not have the benefit of the Appellate Division’s
recent decision in Rowan v. Hartford Plaza Ltd., No. L-3106-09,
2013 WL 1350095, at *8 (N.J. Super. Ct. App. Div. Apr. 5, 2013).
Under that decision, supervisors, like DeFeo, can be held liable
for aiding and abetting his employer’s wrongful conduct, even
where the only bad conduct at issue is the supervisor’s own
conduct.
Id. at *8; see also Cardenas v. Massey, 269 F.3d 251,
268 (3d Cir. 2001)(“Under the LAD a supervisory employee may be
liable for discrimination for aiding and abetting another's (the
5
While Plaintiff has not attempted to rely on temporal proximity, even
if Plaintiff had, her claim would still fail. Any adverse actions were
too temporally remote to establish close temporal proximity, given that
Plaintiff’s PIP and termination were both in August 2010, over a year
and a half after the EEOC investigation concluded in April 2009.
Hussein, 466 F. App’x at 112 n.4 (holding that three month gap was too
large).
6
Seibert v. Quest Diagnostic, Inc., No. 11-304, 2012 WL 1044308, at *8
(D.N.J. Mar. 28, 2012); Putterman v. Weight Watchers Intern., Inc.,
No. 10-1687, 2010 WL 3310706, at *2 (D.N.J. Aug. 19, 2010: Tsakonas v.
Nextel Comms., Inc., No. 04-1363, 2006 WL 2527998, at *6 (D.N.J. Aug.
31, 2006); Newsome v. Admin. Office of the Courts, 103 F. Supp. 2d 807,
823 (D.N.J. 2000).
17
employer's) violation.”); Hurley v. Atlantic City Police Dep’t,
174 F.3d 95, 126 (3d Cir. 1999)(holding that when supervisor
engaged in “affirmatively harassing acts,” he “flouts [his]
duty” and “subjects himself and his employer to liability”);
Coulson v. Town of Kearny, No. 07-5893, 2010 WL 331347, at *5
(D.N.J. Jan. 19, 2010); Ivan v. Cnty. of Middlesex, 595 F. Supp.
2d 425, 462 (D.N.J. 2009); Danna v. Truevance Mgmt., Inc., No.
05-5395, 2007 WL 2156361, at *3 (D.N.J. July 25, 2007).
While
it is admittedly an “awkward theory” to hold an individual
liable for aiding and abetting his own conduct, it would thwart
LAD’s broad and remedial purpose7, and make little sense, to
construe it as permitting “individual liability for a supervisor
who encourages or facilitates another employee's harassing
conduct, while precluding individual liability for the
supervisor based on his or her own discriminatory or harassing
conduct.” Rowan, 2013 WL 1350095, at *8.
Accordingly,
Defendants’ motion for summary judgment on this basis is DENIED.
D.
Punitive Damages
Defendants have also moved for dismissal of Plaintiff’s
claim to entitlement to punitive damages.
In the employment discrimination context, punitive damage
awards must meet two requirements. First, the “wrongdoer’s
conduct [must be] especially egregious.” Lehman v. Toys ‘R’ Us,
7
Matthews v. N.J. Inst. of Tech., 772 F. Supp. 2d 647, 656 n.20 (D.N.J.
2011)(recognizing broad and remedial purpose of LAD).
18
Inc., 624 A.2d 445, 464 (1993)(citation and quotation omitted).
Second, employers should only be liable “in the event of actual
participation of upper management or willful indifference.” Id.
Each of these issues is a difficult and fact-sensitive
determination and, under New Jersey law, the exceptional nature
of a given case and the wanton or malicious nature of the
defendant's conduct are questions for the finder of fact. Weiss
v. Parker Hannifan Corp., 747 F. Supp. 1118, 1135 (D.N.J. 1990).
Because the issue of punitive damages is a fact-sensitive
question for a jury, ruling on this issue at the summary
judgment stage would be premature.
Lowe, 2012 WL 2344844, at *7
(reaching same conclusion); Incorvati v. Best Buy Co., Inc., No.
10-1939, 2013 WL 3283956, at *11 (D.N.J. June 27, 2013)(same).
Accordingly, this Court DENIES Defendants’ motion for summary
judgment on this issue, without prejudice.
IV.
Conclusion
For all these reasons, Defendants’ motion for summary
judgment is GRANTED, in part, and DENIED, in part, as described
above.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated:
July 19, 2013
19
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