GOLDSMID v. LEE RAIN, INC. et al
Filing
30
OPINION FILED. Signed by Judge Joseph E. Irenas on 2/6/14. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CRAIG J. GOLDSMID,
HONORABLE JOSEPH E. IRENAS
Plaintiff,
CIVIL ACTION NO. 12-3666
(JEI/JS)
v.
LEE RAIN, INC., and LINO
FIOCCHI, III
OPINION
Defendants.
APPEARANCES:
ATTORNEYS HARTMAN, CHARTERED
By: Katherine D. Hartman, Esq.
Michael C. Mormando, Esq.
505 S. Lenola Road, Suite 121
Moorestown, New Jersey 08057
Counsel for Plaintiff.
GRUCCIO, PEPPER, DE SANTO & RUTH, P.A.
By: John R. Dominy, Esq.
817 E. Landis Avenue
P.O. Box 1501
Vineland, New Jersey 08362
Counsel for Defendants.
Irenas, Senior District Judge:
This suit concerns alleged violations of the federal Fair
Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”), and related
state-law claims.
Pending before this Court is Defendants’
Motion for Summary Judgment. 1
For the reasons set forth below,
this Motion will be granted in part and denied in part.
1
The Court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331
and § 1367.
1
I.
The events giving rise to this lawsuit stem from Plaintiff
Craig Goldsmid’s (“Goldsmid”) employment at Defendant Lee Rain,
Inc., an irrigation business in Vineland, New Jersey owned by
Defendant Lino Fiocchi (“Fiocchi”) and his brother, Todd
Fiocchi.
(Lino Fiocchi Dep., Jan. 17, 2013, at 10:1-24)
Goldsmid joined Lee Rain, Inc. on January 30, 2007, and worked
there in multiple roles until his termination on June 20, 2011.
(Id. at 73:13, 109:4)
When he was first hired, Goldsmid began working at the
front counter, where he primarily waited on customers.
(Fiocchi
Dep. at 73:22-24; Craig Goldsmid Dep., Jan. 15, 2013, at 24:2125:9)
At the counter, Goldsmid was paid twelve dollars per hour
and generally worked forty hours per week.
After thirty days,
he received a raise to twelve dollars and fifty cents per hour,
and sometime in 2009, his hourly wage increased to thirteen
dollars.
(Fiocchi Dep. at 74:14-75:4; Goldsmid Dep. at 25-26)
Goldsmid worked in other capacities while employed at Lee
Rain.
For a brief period he worked in the field, but sometime
in 2009 Goldsmid moved into the warehouse, where he remained
until his termination.
Dep. at 28:18-22)
(Fiocchi Dep. at 78:21-79:2; Goldsmid
As an hourly warehouse employee, Goldsmid was
expected to work a forty-hour week, with an overtime hourly wage
2
equal to one and a half times his normal wage whenever his work
exceeded forty hours.
(Fiocchi Dep. at 80:22)
In early 2010, Fiocchi prepared a set of Standard Operating
Procedures (“SOPs”) for the warehouse, which were designed to
help employees understand the work flow at Lee Rain, and were
distributed to Goldsmid and other warehouse employees.
35:21)
(Id. at
The warehouse SOPs ran a total of five pages and
included two job descriptions for warehouse personnel, as well
as a bonus policy and a personnel accountability policy.
(Lee
Rain Inc. SOPs, Feb. 7, 2010; Fiocchi Dep. at 38:14-16)
In March 2010, while working in the warehouse, Goldsmid
moved from an hourly wage to a fixed salary.
81:12)
(Fiocchi Dep. at
In deposition testimony, Fiocchi indicated that the move
was intended to provide consistent pay throughout the year for
employees during the slow winter months when hourly work might
be scarce.
(Id. at 81:13-21)
Once on salary, Goldsmid worked
forty-five hours per week, but was not paid any overtime for any
hours in excess of forty five.
(Id. at 83:25-84:9)
Fiocchi
constructed Goldsmid’s salary by multiplying Goldsmid’s thirteen
dollar hourly wage by forty hours, and then adding an additional
five hours multiplied by an hourly wage of nineteen dollars and
fifty cents; in other words, forty hours at the standard wage,
plus five hours at a standard overtime wage.
(Id. at 84:1-9)
Though the sum came out to a weekly wage of $617.50, Goldsmid
3
actually received $615 per week as salary.
(Goldsmid Dep. at
31:14; Fiocchi Dep. at 84:1-9)
In February 2011, David Lachowitz, Goldsmid’s accountant,
approached Goldsmid regarding his wages.
32:12-19)
(Goldsmid Dep. at
After Goldsmid explained his transition to salary,
Lachowitz gave Goldsmid a fact sheet from the federal Department
of Labor Wage and Hour Division that explained how the Fair
Labor Standards Act mandated overtime pay for workweeks in
excess of forty hours.
(Id. at 33:8-9)
Shortly after becoming aware of the federal overtime pay
requirements, Goldsmid began sharing that information with
others at Lee Rain, Inc.
(Goldsmid Dep. at 33:17; Deborah
Martine Dep., March 18, 2013, at 22:11-13)
In particular,
Goldsmid brought a copy of the paper to his direct supervisor in
the warehouse, Debbie Martine.
(Martine Dep. at 20:21-21:7)
Though Martine did not read the fact sheet at the time, she
testified that she knew the fact sheet raised issues with
employee wages at Lee Rain.
(Id. at 27:7-9)
Not long after handing the fact sheet to Martine, Fiocchi
approached Goldsmid after he noticed that Goldsmid’s attitude
around the warehouse changed.
(Fiocchi Dep. at 141:1-7)
In a
conversation in March 2011, Goldsmid told Fiocchi that he felt
as though his wages had declined since the switch from an hourly
wage to a fixed salary.
(Fiocchi Dep. at 141:11-14; Goldsmid
4
Dep. at 42-43)
Fiocchi assured Goldsmid that was not his
intention, and the two met a few days later to discuss how
Fiocchi constructed Goldsmid’s salary.
14; Goldsmid Dep. at 42-43)
(Fiocchi Dep. at 142:1-
In his deposition testimony,
Goldsmid conceded he did not explicitly tell Fiocchi of his
overtime wage concerns, although he did explain that he was
working more hours than he had previously.
(Goldsmid Dep. at
41:21-42:1)
Between March and June 2011, Goldsmid continued work at Lee
Rain, and was never disciplined or spoken to again regarding his
wage concerns.
(Goldsmid Dep. at 46:9-15)
Fiocchi maintains
that Goldsmid was “disruptive” and a poor performer as an
employee, culminating in the weeks leading up to his firing.
(Fiocchi Dep. at 115:21, 102:12-24)
Just two to three weeks
before Goldsmid’s last day, Fiocchi explained that his brother
Todd pulled Goldsmid aside early one morning regarding his
performance.
(Fiocchi Dep. at 103:1-12)
In response to the
criticism, Goldsmid threw a box across the shop, in full view of
Fiocchi, Todd, and Ron Petrowsky, another supervisor.
Dep. at 103:1-24)
(Fiocchi
In his opposition to summary judgment,
Goldsmid disputes that the box incident ever occurred and
highlights that no witness corroborates Fiocchi’s account, but
nonetheless Goldsmid was terminated upon his arrival at work on
June 20, 2011, just two to three weeks after the incident in the
5
shop.
(Fiocchi Dep. at 111:11)
As a result of a newspaper
advertisement placed a month earlier, two individuals began work
in the warehouse on June 21, 2011 to replace Goldsmid, one day
after his firing. 2
(Fiocchi Dep. at 110:2-10)
Not long after his termination, Goldsmid contacted the
State of New Jersey and the federal government to file a
complaint regarding his wages.
(Goldsmid Dep. at 41:22-23)
The
state initiated an investigation, and after obtaining records
and speaking with Fiocchi, the New Jersey Department of Labor
(“NJDOL”) determined that Lee Rain, Inc. failed to pay Goldsmid
overtime wages under the Fair Labor Standards Act.
Settlement, May 3, 2012)
(NJDOL
Based on an agreement between Lee Rain
and the NJDOL, Goldsmid accepted the overdue wages.
(Goldsmid
Dep. at 49:16-50:12)
On June 18, 2012, Goldsmid filed his Complaint in this
Court, alleging violations of FLSA and New Jersey state-law
claims.
Count One alleges that the Defendants’ pay practices
violated FLSA, and Count Two alleges that Goldsmid’s termination
violated FLSA’s retaliation provision.
Count Three alleges a
violation of the New Jersey Conscientious Employee Protection
Act (“CEPA”), N.J.S.A. 34:19-1 – 14, for retaliation.
2
Count
Whether the box-throwing incident, apparently two to three weeks before
Goldsmid’s termination, served as a pretext for firing Goldsmid after the
Defendants had already started the process of hiring Goldsmid’s replacement
is a legal issue addressed more fully on pp. 16-17, infra.
6
Four alleges a breach of contract claim.
Following discovery,
the Defendants filed this Motion for Summary Judgment.
II.
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
In deciding a motion for summary judgment, the
court must construe all facts and inferences in the light most
favorable to the nonmoving party.
See Boyle v. Cnty. of
Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998).
The moving
party bears the burden of establishing that no genuine issue of
material fact remains.
317, 322-23 (1986).
See Celotex Corp. v. Catrett, 477 U.S.
A fact is material only if it will affect
the outcome of a lawsuit under the applicable law, and a dispute
of a material fact is genuine if the evidence is such that a
reasonable fact finder could return a verdict for the nonmoving
party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 249, 252
(1986).
The nonmoving party must present “more than a scintilla of
evidence showing that there is a genuine issue for trial.”
Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
The court’s role in deciding the merits of a summary judgment
motion is to determine whether there is a genuine issue for
7
trial, not to determine the credibility of the evidence or the
truth of the matter.
Anderson, 477 U.S. at 249.
III.
The Defendants argue they are entitled to summary judgment
on Goldsmid’s two FLSA counts as a result of principles of claim
preclusion.
The Defendants also argue that Goldsmid was not the
victim of any retaliatory behavior under FLSA or CEPA.
Finally,
the Defendants assert that the SOPs do not constitute an
employment agreement, undermining Goldsmid’s breach of contract
claim.
Each of these is addressed in turn.
A.
As a preliminary matter, settlement agreements are
contracts, and therefore basic contract principles apply to
their interpretation.
In re Cendant Corp. Prides Litig., 233
F.3d 188, 193 (3d Cir. 2000).
In arguing that Goldsmid’s claim
is barred by principles of res judicata, the Defendants argue
the May 3, 2012 letter settling the New Jersey Department of
Labor investigation into Goldsmid’s wages serves as a preclusive
settlement agreement.
This argument is without merit.
Under New Jersey law, “a written contract is formed when
there is a ‘meeting of the minds’ between the parties evidenced
by a written offer and an unconditional, written acceptance.”
8
Morton v. 4 Orchard Land Trust, 180 N.J. 118, 129-30 (2004)
(quoting Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526,
538-39 (1953)).
There is no indication in the record that any
such written offer and acceptance between Goldsmid and Lee Rain,
Inc. occurred here.
Rather, Goldsmid simply accepted $1,727.30
in wages in accordance with the May 3, 2012 agreement between
the NJDOL and Lee Rain, Inc.
(Goldsmid Dep. at 49:15-19)
That
agreement expressly provided that, “[t]his agreement does not
impair any worker’s rights to pursue a claim for additional
wages.”
(NJDOL Settlement, May 3, 2012)
There is no indication
that Goldsmid signed any document releasing Lee Rain, Inc. from
any claims he might have for overtime wages.
In short, there is
no evidence in the record that Lee Rain, Inc. (or Fiocchi) made
an offer to Goldsmid, nor does his receipt of overtime wages
constitute an acceptance sufficient to demonstrate a meeting of
the minds.
As such, there is no contractual agreement between
Goldsmid and Lee Rain, Inc. that precludes Goldsmid’s recovery.
Nonetheless, the Defendants contend that res judicata bars
Goldsmid’s recovery.
“Res judicata, also called claim
preclusion, bars litigation of all matters that could have been
determined in prior litigation.” 3
Courteau v. United States, No.
3 According to Federal Rule of Civil Procedure 8(c), a Defendant must assert
res judicata as an affirmative defense in response to a pleading. While the
Defendants did not include this affirmative defense as part of the Answer to
the Goldsmid’s Complaint, (see Answer, dkt. no. 5), the Third Circuit permits
parties to raise such affirmative defenses for the first time in a motion for
9
02-cv-0659 (JEI), 2007 WL 1456198, at *3 (D.N.J. May 14, 2007)
(citing Williamson v. Columbia Gas & Elec. Corp., 186 F.2d 464,
469 (3d Cir. 1950)).
To invoke the doctrine of claim
preclusion, a defendant must show: (1) a prior suit involving
the same parties or their privies; (2) a final judgment on the
merits; and (3) the same cause of action in the subsequent suit.
Courteau, 2007 WL 1456198, at *3 (citing Napier v. Thirty or
More Unidentified Federal Agents, etc., 855 F.2d 1080, 1086 (3d
Cir. 1988)).
Claim preclusion may be applied where the government
represents a private individual, but these determinations are
“very difficult,” and depend upon the “interplay between public
and private rights.”
Equal Emp’t Opportunity Comm’n v. U.S.
Steel Corp., 921 F.2d 489, 494 (3d Cir. 1990) (quoting 18 C.
Wright, A. Miller, and E. Cooper, Federal Practice and
Procedure, § 4458, at 512-20 (1981)).
For example, where
Congress has created a comprehensive enforcement scheme that
precludes a plaintiff from independently pursuing a lawsuit
while an agency pursues litigation on the plaintiff’s behalf,
that plaintiff may be bound by the agency’s litigation.
Steel, 921 F.2d at 494.
U.S.
Under FLSA, a plaintiff may not
summary judgment. Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1374 (3d
Cir. 1993); see also Courteau, 2007 WL 1456198, at *2-3; Siebert v. Phelan,
901 F.Supp. 183, 185 (D.N.J. 1995).
10
maintain a lawsuit if the Secretary of Labor commences
proceedings by filing a complaint to obtain overtime wages.
29
U.S.C. § 216(b).
In Goldsmid’s case, however, no such difficult questions
arise.
The undisputed record demonstrates that Goldsmid was
never a party to any proceeding, formal or informal, regarding
Lee Rain, Inc.’s alleged FLSA violations.
Though Goldsmid
initiated an investigation by calling both the federal and state
authorities after his termination, Goldsmid did not participate
in the investigation aside from receiving occasional updates
from state investigators.
(Goldsmid Dep. at 48:1-5, 48:17-18)
More importantly, the Secretary of Labor never filed a complaint
or instituted a proceeding against Lee Rain, Inc. that might
otherwise have served to represent Goldsmid’s interests.
Because Goldsmid was not a party to the May 3, 2012 agreement
between Lee Rain, Inc. and the NJDOL, and the Secretary of Labor
did not institute a proceeding on his behalf, Goldsmid was not a
party to any agreement with the NJDOL for preclusion purposes.
The agreement therefore has no preclusive effect on Goldsmid’s
FLSA claims.
B.
The Defendants contend that they have not retaliated
against Goldsmid in violation of FLSA or CEPA.
11
The Court first
addresses Goldsmid’s substantive FLSA claim before turning to
the two retaliation claims.
1.
Goldsmid contends that the Defendants have failed to
properly compensate him for overtime compensation, as required
by FLSA.
Under FLSA’s maximum hours provision,
[N]o employer shall employ any of his
employees . . . for a workweek longer than
forty hours unless such employee receives
compensation for his employment in excess of
the hours above specified at a rate not less
than one and one-half times the regular rate
at which he is employed.
29 U.S.C. § 207(a).
Exempt from this provision are any
employees who are employed in a “bona fide executive,
administrative, or professional capacity.” 4
§ 213(a)(1).
Here, the undisputed record demonstrates that after
Goldsmid moved from an hourly wage to a fixed salary in March
2010, his weekly work hours exceeded forty hours on a number of
occasions between March 31, 2010 and July 1, 2011.
(See
Goldsmid Dep. at 30:19, NJDOL File, Defs. Ex. K, at 14–15)
The
Defendants contend that when Goldsmid transferred to a salaried
position, his salary was calculated by multiplying his hourly
4 Each of these capacities are further defined by the Secretary of Labor.
See
29 C.F.R. §§ 541.100, 541.200, 541.300. There is no indication that
Goldsmid’s warehouse responsibilities satisfy any of the criteria contained
in those definitions, and the Court does not consider them further here.
12
rate (thirteen dollars per hour) times forty, and then including
five additional hours per week by adding the product of five
hours times nineteen dollars and fifty cents per hour (one and
one-half times his regular salary). 5
(Fiocchi Dep. at 84:1-9)
Even if the Court were to accept this to be the proper
calculation, Goldsmid worked in excess of forty-five hours
during the weeks of: 6/18/2010, 6/30/2010, 7/23/2010, 8/20/2010,
11/19/2010, 12/10/2010, 12/17/2010, 3/25/2011, 4/1/2011,
4/8/2011, 4/8/2011, and 5/6/2011.
000014 – 15)
(NJDOL File, Defs. Ex. K, at
During those weeks, the record shows that Goldsmid
was not compensated for more than forty-five hours of work.
As
this shows that Goldsmid worked in excess of forty hours per
week without proper compensation, the Defendants are not
entitled to summary judgment on Goldsmid’s FLSA claim alleged in
Count One.
2.
Under FLSA, it is unlawful to “discharge . . . any employee
because such employee has filed any complaint or instituted or
caused to be instituted any proceeding under this chapter. . .
.”
29 U.S.C. § 215(a)(3).
To establish a prima facie case of
5
This formula results in a weekly salary of $617.50 for forty-five hours of
work. As Fiocchi conceded in his deposition testimony, Goldsmid was paid a
weekly salary of $615, slightly below the amount he was entitled to any time
that he worked a full forty-five hours. (Fiocchi Dep. at 89:8-25)
13
retaliatory discrimination, a plaintiff must demonstrate that:
(1) the plaintiff engaged in a protected activity, (2) the
employer undertook an adverse employment action against the
plaintiff, and (3) there was a causal link between the
plaintiff’s protected action and the employer’s adverse action.
Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007);
see also Barnello v. AGC Chems. Ams., Inc., No. 08-cv-03505
(WJM/MF), 2009 WL 234142, at *6 (D.N.J. Jan. 29, 2009) (applying
McDonnell Douglas retaliation standard to FLSA retaliation
claims).
After making the prima facie case, the burden shifts
to the employer to articulate a legitimate, non-retaliatory
reason for the adverse action.
Marra, 497 F.3d at 300.
If
successful, the burden of production returns to the plaintiff,
who must show by a preponderance of the evidence that the
employer’s reason was false, and that the true source for the
adverse employment action was retaliation.
Id. (citing Moore v.
City of Phila., 461 F.3d 331, 342 (3d Cir. 2006)).
To engage in a protected activity, a plaintiff need not
formally file a written complaint with an employer; rather, a
verbal complaint that provides notice of the allegations to the
employer is sufficient to form the basis of a FLSA retaliation
claim.
Kasten v. Saint-Gobain Performance Plastics Corp., 131
S.Ct. 1325, 1335 (2011); Shakib v. Back Bay Rest. Grp., Inc.,
No. 10-cv-4564 (DMC/JAD), 2011 WL 4594654, at *7 (D.N.J. Sept.
14
30, 2011).
The record indicates that Goldsmid brought his
overtime wage concerns to his direct supervisor, Debbie Martine, 6
and discussed his concerns about his salary with Fiocchi.
(See,
e.g., Fiocchi Dep. at 140-43; Martine Dep. at 20:21-21:2)
Such
actions raised Goldsmid’s FLSA concerns with his superiors, and
suffice to report a FLSA retaliation claim.
In addition, there
is no dispute that Goldsmid was fired from his position on June
20, 2011.
(Fiocchi Dep. at 106:1-2)
Thus, Goldsmid’s prima
facie retaliation claim rests on whether he can demonstrate a
causal link between his complaints and his firing.
To demonstrate causation in retaliation claims, the Third
Circuit permits plaintiffs to rely on a “broad array of
evidence.”
Farrell v. Planters Lifesavers Co., 206 F.3d 271,
284 (3d Cir. 2000).
In considering this evidence, district
courts focus “on two main factors in finding the causal link
necessary for retaliation: timing and evidence of ongoing
antagonism.”
Abramson v. William Patterson College of N.J., 260
6 While the Defendants suggest that Goldsmid’s failure to give a formal
complaint to Fiocchi or his supervisor is fatal to his FLSA and CEPA claims,
such a conclusion is not warranted. There is no dispute that Goldsmid gave
the Department of Labor fact sheet to his supervisor, (Martine Dep. at 20:2121:2), and that he separately discussed his unhappiness over his overtime
wages with Fiocchi, (Fiocchi Dep. at 140-43). Though Martine apparently
never read the fact sheet because she “tried to stay out of the conflict . .
. [and] just wanted to go to work and do my job and go home,” her failure to
read the fact sheet does not change the fact that Goldsmid reported his pay
concerns to his supervisor. (Martine Dep. at 22:4-6) Indeed, when Goldsmid
told Martine on a different occasion that he was not “getting paid right,”
Martine told him to calm down and speak with Fiocchi or look for another job,
further indicating her knowledge of his pay concerns. (Id. at 22:25-23:2)
15
F.3d 265, 288 (3d Cir. 2001) (citing Farrell, 206 F.3d at 281).
Temporal proximity may suffice to demonstrate causation, for
example where a plaintiff was fired just two days after filing
an EEOC complaint.
Cir. 1989).
Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d
When the facts show that the temporal relationship
between the two is not “unusually suggestive,” timing alone is
insufficient, absent other evidence, to constitute causation.
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)
(holding that a nineteen-month gap, “standing alone,” fails to
support a causal link).
Though his termination was not immediate, sufficient
evidence in the undisputed record demonstrates causation for
Goldsmid’s prima facie case.
Sometime around or shortly before
March 2011, Goldsmid approached Martine, his direct supervisor,
with information on FLSA overtime pay requirements.
Dep. at 20:21-21:2; Goldsmid Dep. at 39-40)
(Martine
Not long after
that, in March 2011, Fiocchi and Goldsmid had two conversations
regarding Goldsmid’s salary and hours.
143:12)
(Fiocchi Dep. at 140:14-
Approximately three months later, Goldsmid was
terminated on June 20, 2011.
(Goldsmid Dep. at 46:16-18)
While
this timing alone is not “unusually suggestive,” just one day
after his termination, two new employees started in the
warehouse, filling Goldsmid’s role.
111:16; Goldsmid Dep. at 54:12)
(Fiocchi Dep. at 110:2-10,
Although the Defendants contend
16
that the decision to hire new warehouse employees was made a
month before, in anticipation of the busy summer season, the
choice of start date just one day after Goldsmid’s termination
might give rise to an inference that the decision to fire
Goldsmid was made weeks earlier but delayed to the day before
his replacement would start.
(Fiocchi Dep. at 111:22-112:15)
Though Goldsmid reported that he faced no other adverse
employment actions besides his June 2011 termination, (Goldsmid
Dep. at 46:7-15), the undisputed evidence regarding the timing
of his firing and replacement creates a question of material
fact and is therefore sufficient to withstand the Defendants’
Motion.
As such, Goldsmid has demonstrated sufficient causation
to state a prima facie claim of retaliation.
The Defendants contend that even if Goldsmid demonstrates a
prima facie retaliation claim, the undisputed record
demonstrates a legitimate, non-retaliatory reason for his
termination.
Specifically, the Defendants assert that Goldsmid
was “disruptive” and that he failed to perform his job duties up
to expectations.
(Fiocchi Dep. at 115:21, 102:12-24)
Thus,
Goldsmid’s FLSA retaliation claim turns on whether he can show
that the Defendants’ assertions are simply a pretext.
When deciding a motion for summary judgment seeking to
rebut a legitimate, non-retaliatory reason for termination,
district courts require the plaintiff to produce “sufficient
17
evidence to raise a genuine issue of fact as to whether the
employer’s proffered reasons were not its true reasons for the
challenged employment action.”
Krouse v. Am. Sterilizer Co.,
126 F.3d 494, 504 (3d Cir. 1997) (quoting Sheridan v. E.I.
DuPont de Nemours and Co., 100 F.3d 1064, 1067 (3d Cir. 1996)).
Ordinarily, a plaintiff may do so by demonstrating weaknesses,
incoherence, implausibility, or contradictions in the employer’s
rationale that a reasonable factfinder could “rationally find
[the rationale] ‘unworthy of credence.’”
Krouse, 126 F.3d at
504 (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.
1994)).
In view of the record, Goldsmid has produced sufficient
evidence to call the Defendants’ rationale into question.
In
particular, Fiocchi described the box-throwing incident just
“two or three weeks” prior to Goldsmid’s termination as an
example of Goldsmid’s disruptive behavior, after preparations
for hiring Goldsmid’s replacement were already underway.
(Fiocchi Dep. at 101:20-103:12)
In this incident, after Todd
Fiocchi told Goldsmid that he had pulled the incorrect items out
of the warehouse, Goldsmid apparently threw a box across the
shop, “and said I’m only doing my job, you know, I don’t know
how I’m going to f’g do it any better. . . .”
(Id. at 103:6-7)
However, under questioning regarding Goldsmid’s performance as
an employee of Lee Rain, Ron Petrowski (witness to the box18
throwing incident) failed to include any details regarding
Goldsmid’s disruptive behavior in the shop or during the course
of Goldsmid’s work performance.
In addition to this
inconsistency, Goldsmid was never subject to any discipline
leading up to his termination.
While Fiocchi asserts that he
spoke with Goldsmid on more than five occasions about his
performance as an employee, Goldsmid indicated that he was never
written up or otherwise sanctioned.
Goldsmid Dep. at 46)
(Fiocchi Dep. at 117:25;
These inconsistencies suggest that the
Defendants’ reason for Goldsmid’s termination may have been a
pretext, and Goldsmid has therefore met his burden to withstand
summary judgment.
3.
The Defendants contend that they are entitled to summary
judgment on Goldsmid’s CEPA retaliation claim.
CEPA provides
that “[a]n employer shall not take any retaliatory action
against an employee because the employee . . . discloses . . .
an activity, policy or practice of the employer . . . that the
employee reasonably believes: (1) is in violation of a law, or a
rule or regulation promulgated pursuant to law . . . .”
N.J.S.A. 34:19-3(a).
A retaliatory action is defined as “the
discharge, suspension or demotion of an employee, or other
adverse employment action . . . .”
19
N.J.S.A. 34:19-2(e).
To bring a CEPA retaliation claim, a plaintiff must
demonstrate:
(1) He or she reasonably believed that his or
her employer's conduct was violation either a
law, rule or regulation promulgated pursuant
to law, or a clear mandate of public policy;
(2) he or she performed a “whistle-blowing”
activity described in N.J.S.A. 34:19-3c; (3)
an adverse employment action was taken against
him or her; and (4) a causal connection exists
between the whistle-blowing activity and the
adverse employment action.
Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).
Like FLSA
retaliation claims, an employer may respond to this prima facie
showing by demonstrating a legitimate, non-retaliatory reason
for the plaintiff’s termination.
Schlichtig v. Inacom Corp.,
271 F.Supp.2d 597, 614 (D.N.J. 2003).
The plaintiff may then
withstand a summary judgment motion by pointing to evidence,
direct or circumstantial, that would permit a reasonable
factfinder to “‘either (1) disbelieve [the] articulated
legitimate reasons [for his termination]; or (2) believe that
[his protected conduct] was more likely than not a motivating or
determinative’ factor in his termination.”
Id.
(first and
third alteration in original) (quoting Fuentes v. Perskie, 32
F.3d 759, 762 (3d Cir. 1994)).
Thus, with just one distinction, FLSA retaliation claims
and CEPA retaliation claims require the same analysis.
Under
FLSA, in addition to demonstrating an adverse employment action
20
and causation as part of the prima facie case, a plaintiff must
show that he engaged in a protected activity.
2009 WL 234142, at *6.
See Barnello,
Under CEPA, this protected activity
requirement is divided into two parts: (1) a reasonable belief
that the employer violated the law, and (2) a whistle-blowing
activity under N.J.S.A. 34:19-3c.
Dwoznar, 177 N.J. at 462.
This first requires a showing that a plaintiff reasonably
believes his employer violated the law.
Id. (citing Estate of
Roach v. TRW, Inc., 164 N.J. 598, 613 (2000)).
Next, a
plaintiff must “‘furnish the trial court with enough by way of
proof and legal basis to enable the court to determine as a
matter of law’ that the plaintiff has identified ‘the asserted
violation with adequate particularity’ for a jury’s
consideration.”
Klein v. Univ. of Med. and Dentistry of N.J.,
377 N.J. Super. 28, 40 (N.J. Super. Ct. App. Div. 2005) (quoting
McLelland v. Moore, 343 N.J. Super. 589, 601 (N.J. Super. Ct.
App. Div. 2001)).
Here, Goldsmid has satisfied these two elements of his
prima facie CEPA retaliation claim.
In particular, his
provision of the Department of Labor fact sheet manifests his
concerns with overtime pay in violation of FLSA, serving as a
reasonable belief that the Defendants violated the law.
(Goldsmid Dep. at 33:8-9)
Second, though the Defendants contend
Goldsmid “merely complained about not making enough money,”
21
(Defs. Br. at 9-10), Goldsmid brought the Department of Labor
fact sheet to his direct supervisor at Lee Rain, Inc., (Martine
Dep. at 20:21-21:2; Goldsmid Dep. at 32:12).
In doing so,
Goldsmid disclosed a potential violation of a federal statute to
his supervisor, raising a sufficiently particular infraction
under N.J.S.A. 34:19-3(a)(1), and therefore satisfying the
second CEPA retaliation factor.
In all other respects, the requirements to maintain a CEPA
retaliation claim are identical to a FLSA retaliation claim.
Goldsmid has met this burden in the FLSA retaliation context,
and therefore summary judgment on Goldsmid’s CEPA retaliation
claim in favor of the Defendants would be inappropriate.
C.
Under New Jersey law, there is a strong presumption that
all employment relationships are terminable at will by either
party unless otherwise specified.
See Witkowski v. Thomas J.
Lipton, Inc., 136 N.J. 385, 397-98 (1994).
However, employment
manuals that spell out specific terms for termination can give
rise to contractual obligations,
if a plaintiff can prove that an employment
manual
containing
job-security
and
termination procedures could reasonably be
understood by an employee to create binding
duties and obligations between the employer
and its employees, the manual will constitute,
in effect, a unilateral offer to contract that
22
an employee may accept through continued
employment. Only in those circumstances will
an employment manual overcome the presumption
that the employment is at will.
Id. at 399 (citation omitted).
To determine whether an employment manual creates a
contractual relationship, the “key consideration . . . is the
reasonable expectations of employees.”
Id. at 392.
Though
there is no “categorical test,” the New Jersey Supreme Court
identified certain factors indicating that an employment manual,
when fairly read, gives rise to a contractual relationship: (1)
the “definiteness and comprehensiveness of the termination
policy,” and (2) the “context of the manual’s preparation and
distribution.”
Id. at 393-94.
In view of these factors and Goldsmid’s reasonable
expectations of the SOPs, the Court finds that Goldsmid was an
at-will employee.
Looking first at the termination policy in
the SOPs, the five-page packet contains just two relevant
sentences: “There will be a process put in place that will hold
personnel accountable and responsible of there (sic) work
performance.
When there is an issue or not following the
process and procedures as listed in this document the following
actions will occur in these steps . . . .”
at 4)
(Lee Rain Inc. SOPs,
Such a policy cannot be properly construed as
comprehensive.
Turning to the distribution of the SOPs,
23
Goldsmid could not recall any company-wide meetings regarding
the SOPs, nor did he ever discuss it with any coworkers.
(Goldsmid Dep. at 60:22)
These SOPs were not formally
distributed to employees, but instead were occasionally provided
verbally and in hard copy.
(Fiocchi Dep. at 36:3-5)
Most significantly, Goldsmid understood the SOPs to be “an
outline on my position.
What some of the job duties and
responsibilities were.”
(Goldsmid Dep. at 60:12-13)
Lee
Fiocchi described the SOPs in similar terms, explaining them as
a “guideline” on how to perform daily tasks.
38:12-16)
(Fiocchi Dep. at
In other words, Goldsmid’s reasonable expectation was
that the SOPs served as guidelines for job performance, rather
than a formal arrangement that redefined his position in the
warehouse.
As such, the SOPs do not constitute an employment
contract, and Goldsmid was therefore an at-will employee.
As an
at-will employee, the Defendants were free to terminate
Goldsmid’s employment freely, and the Court will grant the
Defendants’ motion as to Count Four.
V.
Based on the foregoing, the Court will deny Defendants’
Motion for Summary Judgment as to the FLSA and CEPA claims in
Counts One, Two, and Three, and will grant the Motion as to
24
Count Four’s breach of contract claim.
An appropriate Order
accompanies this Opinion.
Date: 2-6-14
s/ Joseph E. Irenas
Joseph E. Irenas, S.U.S.D.J.
25
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