SIMONS v. BOSTON SCIENTIFIC et al
OPINION. Signed by Judge Madeline Cox Arleo on 11/30/2017. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-7519
BOSTON SCIENTIFIC, et al.,
ARLEO, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on Defendants Boston Scientific Corporation
(“Boston Scientific”), Gary Lickovitch (“Lickovitch”), and Samuel Conaway’s (“Conaway”)
(together, “Defendants”) motion for summary judgment. ECF No. 48. For the reasons set forth
below, Defendants’ motion is GRANTED.
This case arises from the termination of Plaintiff Michael Simons’ (“Simons” or
“Plaintiff”) employment by his former employer, Boston Scientific. Boston Scientific terminated
Plaintiff’s employment on April 20, 2017 as a result of Plaintiff’s pattern of unprofessional
behavior and poor judgment. Plaintiff brings this action under the New Jersey Law Against
Discrimination (“NJLAD”), N.J.S.A. § 10:5-1 et seq., the Family Medical Leave Act (“FMLA”),
29 U.S.C. § 2601 et seq., and the New Jersey Conscientious Employee Protection Act (“CEPA”),
N.J.S.A. § 34:19-1 et seq., to challenge his termination.
A. Plaintiff’s Employment as Regional Manager
Plaintiff began working for Boston Scientific, a medical device company, in February 2000
and served as a Regional Manager from January 2009 until his termination on April 20, 2015. Def.
R.56 Stmt. ¶ 5, ECF No. 48-2. Plaintiff was generally a high-performing Regional Manager and
received several awards from Boston Scientific for his sales performance. Id. ¶ 27. However,
beginning in approximately 2011, Plaintiff began exhibiting a pattern of excessive drinking that
ultimately interfered with his work performance. See, e.g., id. ¶ 28-29, 33, 36, 45-50, 54, 64-65,
84-87, 90-92, 94-96, 115-17.
B. Plaintiff’s Unprofessional Behavior Due to Alcohol Consumption
In approximately 2011, Plaintiff participated in a multi-day leadership conference at
Boston Scientific’s headquarters in Boston and failed to appear for a day of the conference. Id. ¶
28. Boston Scientific personnel asked hotel staff to check Plaintiff’s room, where he was found
“passed out” with open liquor bottles. Id.; id., Ex. 51, ECF No. 48-61, 10/26/16 DeCoux Dep. Tr.
104:4-6. Plaintiff’s supervisor instructed Plaintiff to leave the conference and return home. Def.
R.56 Stmt. ¶ 28. Another time, also in approximately 2011, Plaintiff attended a meeting led by his
supervisor in Maple Grove, Minnesota at which he drank multiple alcoholic drinks, slurred his
words, and made off-topic comments to the extent that Plaintiff’s Human Resources (“HR”)
manager, Michelle DeCoux, asked the waitress to stop serving Plaintiff alcohol. Id. ¶ 29.
Sometime after that, in approximately 2011 or 2012, Plaintiff spoke with DeCoux about
taking a leave from Boston Scientific to seek inpatient treatment for alcohol dependency. Id. ¶ 30.
Subsequently, Plaintiff checked into an inpatient treatment facility in Minnesota but did not
complete the program; he stayed there for approximately 10 days. Id. ¶ 31. Plaintiff suffered no
adverse employment consequences as a result of this leave. Id.
Plaintiff’s alcohol use continued to interfere with his job performance. In 2013, Defendant
Conaway began supervising Plaintiff and, while Conaway commended Plaintiff on his strong sales
performance, Conaway observed multiple instances of poor judgment and inappropriate behavior
by Plaintiff brought on by alcohol use. Id. ¶ 35. Conaway observed that during an October 30,
2013 business dinner, Plaintiff had several drinks, was unable to follow the conversation, and had
unprompted outbursts of laughter. Id. ¶ 36. Conaway observed that during a December 18, 2013
business dinner, Plaintiff slurred his speech, repeated comments several times, and made
comments related to consuming alcohol. Id. Conaway observed that Plaintiff brought his
girlfriend to a December 29, 2013 national sales meeting, to which significant others were not
invited, and at which Plaintiff engaged in unprofessional conduct including allowing his girlfriend
to sit “on [Plaintiff’s] lap.” Id.; id., Ex. 51, 10/26/16 DeCoux Dep. Tr. 108:2-10. Conaway also
observed that Plaintiff seemed disengaged and exhibited an inconsistent thought process during a
February 5, 2014 business call. Def. R.56 Stmt. ¶ 36.
Based on these four incidents, Conaway issued Plaintiff a Written Corrective Action on
February 14, 2014 which directed Plaintiff to “immediately exhibit professional behavior and good
judgment” and which warned that failure to do so could result in termination. Id. ¶ 36; id., Ex. 9,
ECF No. 48-19. Soon after issuing the Written Corrective Action, Conaway completed an
evaluation of Plaintiff’s 2013 performance in which he referenced Plaintiff’s poor judgment,
cautioned that “any future lapse in good judgment could lead to termination,” and emphasized that
“[c]orrecting your leadership judgment is critical for you to remain in your current role.” Id. ¶ 43;
id., Ex. 8, ECF No. 48-4.
Four months later, Plaintiff further engaged in inappropriate behavior on the job while
under the influence of alcohol. From June 2-4, 2014, Plaintiff attended a strategy meeting for
regional managers and Boston Scientific leadership during which plaintiff consumed alcohol. Def.
R.56 Stmt. ¶ 46. Plaintiff was reportedly disengaged during the meeting and failed to complete
his assignments. Id. Plaintiff was observed slurring his words and exhibiting difficulty focusing
on the matters being discussed. Id. Plaintiff’s inebriation was further observed during the dinner
after the meeting. While the group walked to dinner, “Plaintiff grabbed a basketball from some
children and brought it with him down the street.” Id. ¶ 47. A colleague “had to wrest the ball
from Plaintiff and return it to the children.” Id. Plaintiff continued to slur his speech, laugh
excessively, and make inappropriate comments. Id. During the dinner, Plaintiff continued to drink
alcohol and became increasingly incoherent. Id. ¶ 48. Over a period of approximately half an
hour, Plaintiff and another Boston Scientific employee ordered eight shots on a colleague’s bar
tab. Id. ¶ 50. At one point, “Plaintiff sat down at the wrong table and began eating food someone
else had ordered.” Id. ¶ 48.
The following morning, Plaintiff met with his supervisor, Conaway, who warned Plaintiff
not to drink at any future Boston Scientific meeting, and Plaintiff promised he would not. Id. ¶
Fewer than ten days later, on June 13, 2014, Plaintiff received a Final Corrective Action
which referenced the events of the June 2-4, 2014 meeting. Id. ¶ 54. The Final Corrective Action
reiterated Plaintiff’s commitment “not to drink during any future BSC meetings” and to “behave
professionally at all times,” and it cautioned Plaintiff that “modifying [his] behavior [was] critical
for [his] continued employment with BSC.” Id.; id., Ex. 11, ECF No. 48-21. The Final Corrective
Action included an “anticipated review date” of July 31, 2014 with “[p]eriodic reviews thereafter
through June 2015.” Def. R.56 Stmt. ¶ 55. The Final Corrective Action provided Plaintiff with
information about Boston Scientific’s Employee Assistance Program. Id. ¶ 56.
Plaintiff responded to the Final Corrective Action by updating his resume, which he
acknowledged in his deposition was “prudent” because “[t]wo corrective actions is concerning.”
Id. ¶ 57. In November 2014, Plaintiff sent his resume to a manager at another medical device
company and acknowledged in an email to his girlfriend regarding a work event they were both
planning to attend that they would refrain from alcohol so as to “redeem ourselves.” Id. ¶ 58.
Plaintiff also engaged in email correspondence with his sister, who advised Plaintiff to take a leave
of absence to get treatment for alcohol use. Id. ¶ 59. His sister wrote:
[Y]ou can get FMLA for 12 weeks. You can’t be fired!! If you do not go into treatment
and get caught drinking during work hours, or Joe or Tom tell anyone about the incident
that happened, you can be fired immediately. If you seek treatment before they find out
and go under FMLA, they can’t do anything to you . . .
Plaintiff, however, continued to consume alcohol while on the job. Plaintiff and his
subordinates testified that in the first few months of 2015, Plaintiff drank during the work day and
frequently appeared intoxicated, and Plaintiff testified that he drank during the work day on more
than one occasion. Id. ¶ 84. Members of Plaintiff’s team testified that Plaintiff was also
increasingly difficult to reach and that when he was reached, he had difficulty remembering details
and would often repeat things that had already been discussed. Id. ¶ 85. One subordinate testified
that Plaintiff would call him drunk four out of the five days of the work week and that Plaintiff
“sound[ed] drunk on the phone more often than not.” Id. ¶ 86. Another subordinate testified that
it was “painful to have a conversation with [Plaintiff]” because he frequently slurred his words or
brought up matters they had already discussed, and estimated that Plaintiff was intoxicated on over
20 separate occasions on which they spoke about work matters. Id. ¶ 87.
C. Plaintiff’s Attempts to Blackmail His Supervisor
Plaintiff also continued to display poor judgment in multiple incidents from late 2014 to
early 2015.1 In late 2014, he brought his girlfriend to a work reception and misrepresented to his
supervisor, Lickovitch, that he had received approval to do so. Id. ¶ 64. Also in late 2014, he
requested permission from Lickovitch to skip a dinner meeting with a customer in New York City
so that he could go home to New Jersey to take his daughters out to dinner, but the next morning,
Lickovitch spotted Plaintiff and his girlfriend on the elevator of a New York City hotel. Id. ¶ 65.
Plaintiff maintains that he did, in fact, get permission to bring his girlfriend, id. ¶ 68, and
that he did go to New Jersey to take his daughters out to dinner and returned to the New York City
hotel for the night. Pl. R.56 Stmt. ¶ 30-31, ECF No. 73. What is not in dispute is Plaintiff’s
reaction to being reprimanded by Lickovitch for these two incidents. Lickovitch spoke to Plaintiff
about these incidents and on December 1, 2014, he summarized that conversation in an email to
Plaintiff. Id. ¶ 67-68. Plaintiff was angry that Lickovitch addressed these concerns in an email
because he believed that “emails at Boston Scientific are permanent documents” and left
Lickovitch a voicemail to that effect. Id. ¶ 68-69. The voicemail, which Lickovitch described as
“scathing,” contained “yelling” and “screaming.” Id. ¶ 69. Plaintiff also “threaten[ed]” Lickovitch
by indicating that he had received “so many complaints” from members of his team about
Lickovitch. Id. ¶ 69-70.
On December 4, 2014, Plaintiff sent Lickovitch an email which purported to “lay out issues
that [his] team ha[d] expressed . . .” including a claim that Lickovitch had made a female
subordinate uncomfortable and had “dragg[ed]” a male subordinate “around to meet girls.” Id. ¶
Plaintiff claims he performed for Boston Scientific during the seven months following his Final
Corrective Action Plan “without incident.” Pl. R.56 Stmt. ¶ 22. This claim is unsupported by the
record. When a party’s story “is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
72. Plaintiff concluded his email by writing: “Gary, [t]his e mail will stay in my files and I would
fully expect you and I will continue a strong working relationship.” Id. Plaintiff did not report his
alleged concerns about Lickovitch to HR.2 Id. After receiving the email, Lickovotch forwarded
it to DeCoux. Id. ¶ 75. Lynn Prust, Boston Scientific’s Director of Employment and Employee
Relations, conducted an investigation of Plaintiff’s allegations and determined that no policy had
been violated. Id. ¶ 83.
D. Plaintiff’s Worsening Behavior
In another incident in February 2015, Plaintiff and a subordinate were scheduled to meet
with a physician regarding a patient who had died during an operation involving a Boston
Scientific device. Id. ¶ 90. Plaintiff’s subordinate called this meeting, which occurred during
normal business hours, “the most significant meeting of my entire career.” Id. ¶ 91. Plaintiff
showed up for the meeting “visibly intoxicated.” Id. ¶ 92. He “slurred his speech, his eyes were
not fully open, and he smelled like he had been drinking.” Id. Plaintiff would normally have taken
the lead during such a meeting, but Plaintiff’s subordinate was forced to conduct the meeting
And finally, on February 27, 2015, Plaintiff was scheduled to participate on an important
quarterly sales call scheduled for 5:30 pm. Id. ¶ 114-15. When Plaintiff did not appear at the
beginning of the call, Lickovitch sent him a text message reminding him to join. Id. ¶ 115. Plaintiff
eventually joined the call but several other individuals on the call observed that he sounded
intoxicated. Id. ¶ 116, 122. Conaway reported that Plaintiff slurred his words, “could hardly [give
Plaintiff contends, in his Amended Complaint, and in his Counter Statement of Undisputed Facts,
that he did report his concerns about Lickovitch to HR. See Am. Compl. ¶ 6, ECF No. 19; Pl.
R.56 Stmt. ¶ 50. This claim is unsupported by Plaintiff’s own deposition testimony, Pl. R.56 Stmt.,
Ex. 1 at 210:11-211:1, 220:5-18, and by the plain text of his email, Def. R.56 Stmt., Ex. 15, ECF
No. 48-25. See also Def. R.56 Stmt. ¶ 72 n.13.
a sales update],” “wasn’t clear,” and “was just mumbling, talking all over himself.” Id. ¶ 117.3
Lickovitch and Conaway received text messages from other individuals on the call stating that
Plaintiff appeared drunk. Id. ¶ 116-17.
E. Plaintiff’s Arrest and FMLA Leave
On Thursday, March 12, 2015, at approximately 2:18 pm on a work day, Plaintiff drove to
his daughters’ school to pick them up and was arrested for driving under the influence of alcohol
(“DUI”) while in a school zone and for reckless driving. Id. ¶ 125-26, 131. Plaintiff’s speech was
reportedly “slurred” and “at times slow and incoherent,” and he failed both a field sobriety test and
a breathalyzer test. Id. ¶ 127-28. Plaintiff did not tell anyone at Boston Scientific about the arrest,
but sent an email to Lickovitch the following morning, on March 13, 2015, stating that he would
be taking FMLA leave and that he “need[ed] to go get healthy.” Id. ¶ 132. Plaintiff told Camille
Chang Gilmore, Boston Scientific’s Vice President of HR, that he had a “drinking problem” or
that he was an “alcoholic.” Id. ¶ 133. Plaintiff also told his subordinates that he would be taking
leave for treatment for alcoholism or because he had a drinking problem. Id. ¶ 135. Plaintiff then
checked into, and completed, a 30-day inpatient treatment program in California. Id. ¶ 138.
While Plaintiff was on leave, Prust continued to investigate outstanding allegations against
Plaintiff, including allegations relating to the February 27, 2015 sales call.
Id. ¶ 15, 144.
Ultimately, Prust concluded that Plaintiff was under the influence of alcohol during that call. Id.
On April 13, 2015, the day before Plaintiff returned to work, Prust spoke to Plaintiff over
the phone. Id. ¶ 145. During this call, Plaintiff brought up a new concern: that Lickovitch had
Plaintiff claims he was not drunk but rather “extremely excited” during the February 27, 2015
call. Pl. R.56 Stmt. ¶ 99-100. This claim is unsupported by the record.
made disparaging comments about Plaintiff to Plaintiff’s subordinates during Plaintiff’s leave from
work. Id. ¶ 145. Plaintiff claimed he relayed these concerns to Kevin Ballinger, the division
president of Plaintiff’s division at Boston Scientific, and that Ballinger assured Plaintiff he would
“take care of it.” Id. ¶ 145.4 Plaintiff also threatened to sue Boston Scientific if Lickovitch did
not get fired and made a series of allegations that Conaway had engaged in inappropriate behavior.
Id. ¶ 146. A subsequent investigation of Lickovich’s comments determined that no policy had
been violated. Id. ¶ 150.
F. Plaintiff’s Termination
On April 14, 2015, Plaintiff returned to work. Id. ¶ 145.
That day, Prust spoke with
Ballinger, who denied having spoken with Plaintiff. Id. ¶ 149. Ballinger indicated that Plaintiff’s
claim that the two had spoken made Plaintiff seem “not trustworthy.” Id. ¶ 149. Also on that day,
DeCoux scheduled a conference call for Friday, April 17, 2015, with Conaway, Lickovitch,
Gilmore, Prust, and in-house counsel to discuss the outcome of Prust’s investigation and Plaintiff’s
employment. Id. ¶ 151. Boston Scientific also scheduled an in-person meeting between Plaintiff,
Conaway, and Gilmore to take place on Monday, April 20, 2015 in New York City. Id. At the
time this meeting was scheduled, Boston Scientific officials “knew it was likely to include either
a serious discussion about Plaintiff’s behavior or termination of Plaintiff’s employment.” Id. ¶
On Thursday, April 16, 2016, out of concern over how Plaintiff might react during the
April 20, 2015 meeting, DeCoux arranged for security to be present. Id. ¶ 152. Boston Scientific’s
security team also ran a criminal background check on Plaintiff in preparation for the meeting. Id.
In his deposition, Plaintiff claimed that he did not tell Prust that he spoke with Ballinger, but the
record does not support this contention. Id. ¶ 147-48.
This check revealed Plaintiff’s March 12, 2015 DUI arrest. Id. Upon learning about Plaintiff’s
DUI, Prust called Plaintiff and asked him what he had been doing on March 12, 2015. Id. ¶ 154.
Plaintiff first told Prust that he had been on a plane that day, but then claimed that he could not
remember what he had been doing. Id. When Prust continued questioning him, Plaintiff admitted
that he had received a DUI that day. Id. ¶ 155. Prust conveyed this information to Ballinger, who
conveyed the information to Gilmore. Id. ¶ 156.
The following day, on April 17, 2015, Conaway, Lickovitch, Gilmore, Prust, DeCoux, and
Boston Scientific’s in-house counsel conducted their scheduled conference call to discuss
Plaintiff’s employment. Id. ¶ 157. After discussing “Plaintiff’s historical performance, ongoing
behavior, the fact that he had falsely stated he had spoken to Ballinger, his DUI on March 12, 2015
at his children’s school during work hours, his initial denial that anything extraordinary happened
on March 12, and his continued poor behavior and judgment,” the parties collectively decided to
terminate Plaintiff’s employment. Id. ¶ 157-58.
The parties prepared a list of “talking points” that laid out the reasons for Plaintiff’s
termination: (1) Plaintiff’s Written Corrective Action; (2) Plaintiff’s Final Corrective Action and
his commitment to not drink alcohol at any future meetings and to behave professionally at all
times; (3) Plaintiff’s slurring his words and sounding intoxicated during the February 27, 2015
conference call; (4) Plaintiff’s consuming alcohol during the work day on March 12, 2015, the day
of his DUI; and (5) Plaintiff’s false claim to Prust that he had spoken with Ballinger. Id. ¶ 159.
Also on April 17, 2015, Plaintiff was notified about the in-person meeting scheduled for
that Monday and began to realize that he was about to be terminated. Id. ¶ 160-61. In an email
exchange with his ex-wife between April 16-17, 2015, Plaintiff stated that he was “about to lose
[his] job” and said wrote “[t]hey’re coming to fire me Monday . . . .” Id. ¶ 161. At 9:10 pm the
night before the meeting, Plaintiff sent an email to DeCoux in which he attempted to avoid the
meeting by writing “I feel stress and am going out for help of FLMA [sic] leave tomorrow.” Id. ¶
162. The morning of the meeting, Plaintiff sent a series of text messages to Conaway threatening
to not show up to the meeting and telling Conaway that he needed “to leave on FMLA again.” Id.
¶ 163. Plaintiff also sent an email to his girlfriend stating that he was “[h]eaded to get fired.” Id.
¶ 163. Plaintiff ultimately attended the meeting and was informed that his employment was
terminated for the reasons stated in the prepared talking points. Id. ¶ 165.
G. Plaintiff’s Claims
Plaintiff filed this action against Boston Scientific, Lickovitch, Conaway, and John Does
1-30 in state court on August 31, 2015. ECF No. 1-1. On October 15, 2015, Defendants removed
this action to federal court. Id. Plaintiff brings six claims for: (1) discriminatory discharge based
on disability in violation of NJLAD; (2) retaliation in violation of FMLA; (3) retaliation in
violation of NJLAD; (4) retaliation in violation of CEPA; and (5) aiding and abetting disability
discrimination by Lickovitch and Conaway in violation of NJLAD; and (6) discrimination and
retaliation by John Does 1-30.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories,
admissions, and affidavits show that “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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). “Summary judgment may be granted only if
there exists no genuine issue of material fact that would permit a reasonable jury to find for the
nonmoving party.” Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988).
When the Court considers a motion for summary judgment, “all facts and inferences are
construed in the light most favorable to the non-moving party.” Boyle v. Cty. of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). However, “a plaintiff cannot resist a properly
supported motion for summary judgment merely by restating the allegations of his complaint, but
must point to concrete evidence in the record that supports each and every essential element of his
case.” Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995).
A. Plaintiff’s Disability Discrimination Claim under NJLAD
Plaintiff argues that Defendants terminated his employment for a discriminatory reason—
because he is an alcoholic—and that in doing so, Defendants violated NJLAD. Defendants
maintain they terminated Plaintiff’s employment due to his poor judgment and unprofessional
behavior brought on, in part, by his alcohol use. The Court agrees with Defendants.
An NJLAD claim is analyzed using the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Sarnowski v. Air Brooke
Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007); Zive v. Stanley Roberts, Inc., 182 N.J. 436,
447-48 (2005). To establish a prima facie claim for disability discrimination under NJLAD,
Plaintiff must show: (1) he belongs to a protected class; (2) he held a position for which he was
objectively qualified; (3) was terminated from that position; and (4) the employer sought to, or
did, fill the position with a similarly-qualified person. Viscik v. Fowler Equipment Co., 173 N.J.
1, 14 (2002).
Plaintiff has demonstrated that he meets the first, third, and fourth prongs of the prima facie
test. He is an alcoholic, Pl. R.56 Stmt. ¶ 5, he was terminated from his position as Regional
Manager, id. ¶ 26, and he was replaced by a similarly-qualified person. Def. R.56 Stmt. ¶ 166.
Plaintiff has also demonstrated that he meets the “objectively qualified” prong, which requires him
to show that he was “meeting the employer’s legitimate or reasonable expectations,” Viscik, 173
N.J. at 21, and that he was “actually performing [his] job prior to the termination.” Zive, 182 N.J
at 454. Plaintiff has demonstrated that he received numerous sales awards and repeatedly exceeded
his sales quotas, so he has satisfied this prong as well.5 Pl. R.56 Stmt. ¶ 3.
Once the plaintiff has pled a prima facie case of discrimination in violation of NJLAD, the
burden shifts to the defendant to “articulate a legitimate, non-discriminatory reason for the adverse
employment action.” Viscik, 173 N.J. at 14. After the defendant does so, the burden shifts back
to the plaintiff to show that “the employer’s proffered reason was merely a pretext for
The Court is satisfied that Defendants have articulated a legitimate, non-discriminatory
reason for terminating Plaintiff’s employment. The record contains ample evidence of Plaintiff’s
indiscretions in the course of his performance as Regional Manager.
demonstrated that Plaintiff drank excessively and behaved inappropriately at multiple business
meetings and conferences, Def. R.56 Stmt. ¶¶ 28, 29, 36, 46-50, that he received two written
corrective actions and promised not to drink during work or to behave inappropriately in the future,
id. ¶¶ 36, 43, 53-55, that he continued to drink during the work day and was frequently difficult to
reach, id. ¶¶ 84-87, that he was drunk during an important meeting with a physician, id. ¶¶ 90-92,
that he was drunk during an important strategy conference call, id. ¶¶ 114-17, that he was arrested
for DUI in the middle of a work day, id. ¶¶ 125-26, 131, and that he lied to Prust during Boston
Defendants contend that Plaintiff has not met the second prong of his prima facie test because
testimony from his subordinates and managers demonstrate that he was frequently drunk during
the work day, that he was unable to participate sales calls, and that he was ineffective in supporting
his team of sales representatives. Def. Brief at 20-21, ECF No. 48-1. But when determining the
sufficiency of Plaintiff’s prima facie case, “only the plaintiff’s evidence should be considered.”
Zive, 182 N.J. at 455. “[P]erformance markers like poor evaluations” should not be considered
until the Court reaches the second and third stages of the burden shifting framework. Id.
Scientific’s investigation into his conduct, id. ¶ 145. See Casseus v. Elizabeth Gen. Med. Ctr., 287
N.J. Super. 396, 405 (N.J. Super. Ct. App. Div. 1996) (“it should require no citation to state that
an employee’s poor performance in discharging his duties is a legitimate nondiscriminatory reason
to fire or demote the employee.”).
Finally, Plaintiff has not met his burden of demonstrating that Defendant’s proffered
reasons are pretext for discrimination against Plaintiff on the basis of disability. To establish
pretext, Plaintiff must submit evidence that “either casts sufficient doubt upon the employer’s
proffered legitimate reason so that a factfinder could reasonably conclude it was fabricated, or that
allows the factfinder to infer that discrimination was more likely than not the motivating or
determinative cause of the termination decision.” Svarnas v. AT&T Communications, 326 N.J.
Super. 59, 82 (N.J. Sup. Ct. App. Div. 1999).
At issue at the pretext stage “is whether
discriminatory animus motivated the employer.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.
First, Plaintiff argues that Boston Scientific’s reasons for terminating his employment are
pretext for discrimination on the theory that Boston Scientific took no issue with his alcohol use
until he disclosed his status as an alcoholic and took his FMLA leave in March of 2015. Plaintiff
states: “the evidence is undisputed that prior to plaintiff’s acknowledgement of his alcoholism,
request for FMLA leave and seeking 30 days in-patient alcoholism rehabilitation, plaintiff had not
been subjected to any investigation regarding his alcohol use.” Pl. Opp. Brief at 12, ECF No. 72.
This statement is simply untrue, and flies in the face of the two corrective actions Plaintiff received
in February and June 2014.6 Plaintiff writes of himself, “[h]e was not reported for any alleged
Plaintiff claims that his corrective actions had “expired” by the time he was terminated. Pl. Opp.
Brief at 18. This is one of Plaintiff’s many claims that is directly contradicted by evidence in the
record. His Final Corrective Action explicitly states that he “committed . . . not to drink during
violation of the Corrective Action Plans or Alcohol Use policy before he admitted his alcoholism
and requested FMLA leave to rehabilitate from the disability.” Id. Plaintiff appears to be claiming
that the absence of reported violations of his corrective action plans suggests that his workplace
behavior was adequate, without acknowledging the fact that the corrective action plans themselves
Next, Plaintiff suggests that he was not actually drunk during the February 27, 2015
conference call. This contention is contradicted by the record, which includes testimony from five
individuals, including supervisors and subordinates, who testified that Plaintiff sounded drunk on
the call. Def. R.56 Stmt. ¶ 116. But even if all five individuals were incorrect, that would merely
demonstrate that Plaintiff’s colleagues inaccurately assessed his job performance, not that they
were motivated by a discriminatory reason in doing so. See Chambers v. Heidelberg USA, Inc.,
2006 WL 1281308 at *12. (D.N.J. May 5, 2006) (“it is insufficient for [plaintiff] to show merely
that the employer’s decision was wrong or mistaken because the relevant issue is ‘whether
discriminatory animus motivated the defendant, not whether the defendant is wise, shrewd,
prudent, or competent.’”) (quoting Fuentes, 32 F.3d at 763).
Third, Plaintiff argues that Boston Scientific misrepresented the time at which it made the
decision to terminate his employment: specifically, that it made the decision before the April 17,
2015 conference call. Pl. Opp. Brief at 16. He then makes a gigantic leap, claiming this means “a
reasonable jury can easily conclude that every single reason set forth [for Plaintiff’s termination]
is a complete post hac [sic] fabrication . . . .” Id. Plaintiff’s contention mischaracterizes the record.
Defendants have demonstrated that the April 20, 2017 meeting was scheduled on April 14, 2015
any future BSC meetings and . . . would behave professionally at all times,” and indicated that he
would be subject to period reviews through June 2015. Def. R.56 Stmt. ¶¶ 54-55 (emphasis added).
to discuss seriously “Plaintiff’s behavior” or possible “termination of Plaintiff’s employment.”
Def. R.56 Stmt. ¶ 151. Defendants have demonstrated that Plaintiff was “trending toward
termination” by April 16, 2015. Id. ¶ 156; see also id., Ex. 11, ECF No. 48-21 (Plaintiff’s Final
Corrective Action issued on June 13, 2015, stated: “modifying your behavior is critical for your
continued employment with BSC” and “[f]ailure to demonstrate and sustain an acceptable level of
performance may result in . . . termination of employment, at any time.”). They have demonstrated
that a final decision regarding Plaintiff’s continued employment had not been made as of April 16,
2015 but that the discovery of Plaintiff’s lie to Prust and of his work day DUI helped sway senior
management towards deciding to terminate Plaintiff’s employment. Def. R.56 Stmt. ¶ 156. And
Defendants have demonstrated that the ultimate decision to terminate Plaintiff’s employment was
made on April 17, 2015. Id. ¶ 158. Furthermore, Plaintiff cannot point to facts to suggest that the
ultimate decision to terminate was made prior to the April 17 conference call.
Even if Plaintiff were correct in asserting that the decision to terminate him was made
before the April 17 call, that would not support a finding of pretext. Plaintiff’s attempt to call into
question the timing of Boston Scientific’s decision does not cast doubt on the validity of its reasons
for making the decision. There are plenty of nondiscriminatory reasons for Boston Scientific to
have terminated Plaintiff’s employment prior to April 17, 2015. By the time Plaintiff took FMLA
leave in March 2015, he had already been subject to two disciplinary actions and Boston Scientific
was in the process of investigating allegations of Plaintiff’s further inappropriate behavior on the
February 27, 2017 call. Id. ¶¶ 36, 54, 119-120.
Ultimately, Plaintiff has not demonstrated that Boston Scientific’s proffered reasons for
termination are false, or that the decision was motivated by animus. He has failed to demonstrate
that Boston Scientific’s reasons were terminating his employment are pretext for discrimination.
As Plaintiff has failed to raise a genuine issue of material fact as to pretext, his discriminatory
discharge claim must be dismissed.
B. Plaintiff’s FMLA Disability Claim
Next, Plaintiff argues that Boston Scientific terminated his employment in retaliation for
his request to take FMLA leave, in violation of FMLA. Defendants contend that Plaintiff’s
termination was unrelated to his request to take leave. The Court agrees with Defendants.
To establish a prima facie case of FMLA retaliation, Plaintiff must show that (1) he
engaged in protected activity by requesting FMLA leave; (2) he suffered an adverse employment
decision; and (3) the adverse decision was casually related to his request for leave. Capps v.
Mondelez Global, LLC, 847 F.3d 114, 152 n.6 (3d Cir 2017). FMLA retaliation claims are also
analyzed under the McDonnell Douglass burden-shifting framework.
demonstrated that he requested FMLA leave and that he was terminated, but he cannot establish
that his termination was causally related to his request for leave.
Temporal proximity between the FMLA request and the adverse employment decision may
suggest a causal connection. “To demonstrate a causal connection, a plaintiff generally must show
‘either (1) an unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal
link.’” Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir. 2014) (quoting Lauren
W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)); see also Marra v. Philadelphia
Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (“[i]n certain narrow circumstances, an ‘unusually
suggestive’ proximity in time between the protected activity and the adverse action may be
sufficient, on its own, to establish the requisite causal connection.”). However, “[a]n employee
cannot easily establish a causal connection between his protected activity and the alleged
retaliation when he has received significant negative evaluations before engaging in the protected
activity.” Ross v. Gilhuly, 755 F.3d 185, 194 (3d Cir. 2014).
Boston Scientific made the decision to terminate Plaintiff’s employment on April 17, 2015,
over a month after Plaintiff requested FMLA leave on March 13 of that year. It is true that the
decision came only three days after his return from FMLA leave, but it is also true that the decision
came 14 months after Plaintiff’s first Written Corrective Action, ten months after Plaintiff’s Final
Corrective Action—which warned Plaintiff that future instances of drinking while on the job “may
result in . . . termination of employment,” Def. R.56 Stmt, Ex. 11—and very soon after Prust
concluded that Plaintiff was drunk during the February 27, 2015 call. It is not clear that this is
“certain narrow circumstance” in which the temporal proximity is “unusually suggestive.”
Marra, 497 F.3d at 302.
Plaintiff alleges no proof of causation other than timing. He suggests that Defendants
displayed a “pattern of antagonism” against him, but merely states in support the false claim that
“Plaintiff had not been investigated for an alcohol related issue” prior to “admitting alcoholism.”
Pl. Opp. Brief at 22. As such, Plaintiff has failed to plead a prima facie case of FMLA retaliation.
And even if he had, he has not alleged any facts, other than timing, to overcome Defendants’
legitimate, nondiscriminatory reasons for terminating his employment. Pl. Opp. Brief at 23.
C. Plaintiff’s Retaliation Claim
Plaintiff next contends that he engaged in protected activity when he reported in a
December 4, 2014 email an allegation that Lickovitch sexually harassed a female subordinate, and
that Boston Scientific retaliated against him in violation of NJLAD and CEPA. Am. Compl. ¶¶
36-41.7 Defendants argue that Plaintiff cannot avail himself of CEPA because his report was not
made in good faith. The Court agrees with Defendants.
To establish a prima facie case of retaliation in violation of CEPA, Plaintiff must show that
(1) he reasonably believed the conduct he reported violated a law, rule, regulation, or clear mandate
of public policy; (2) he performed a “whistle-blowing” activity described in N.J.S.A. § 34:19–3;
(3) an adverse employment action was taken against him; and (4) a causal connection exists
between the whistle-blowing activity and the adverse employment action. Winters v. North
Hudson Regional Fire and Rescue, 212 N.J. 67, 89 (N.J. 2012) (citation omitted).
Plaintiff’s claim fails because he cannot prove prongs two and four of his prima facie case.
First, Plaintiff cannot point to any facts demonstrating that he performed “whistle-blowing”
activity. He claims that he reported an allegation of sexual harassment “to his supervisor”—but
the allegation in question concerned that same supervisor. That is, he seeks CEPA protection for
reporting allegations against Lickovitch to Lickovitch himself, rather than to Boston Scientific’s
HR department, as he was instructed to do per its Harassment Policy, and as he knew to do and
had done when he made similar allegations in the past. Def. R.56 Stmt. ¶¶ 71, 74. And Plaintiff
never formally reported his allegation. He claims that he did in his Amended Complaint, ¶ 6, but
testified in his deposition that “Gary [Lickovitch],” not he “elevated it” to HR. Pl. R.56 Stmt., Ex.
1 at 210:23. He explicitly disclaimed any intention to make a formal report when he wrote: “Gary,
[t]his email will stay in my files and I would fully expect you and I will continue a strong working
relationship.” Id. ¶ 72.
Because Plaintiff’s NJLAD and CEPA retaliation claims are based on the same facts, the NJLAD
retaliation claim is deemed waived. N.J.S.A. § 34:19-8 (commencing a CEPA action “shall be
deemed a waiver of the rights and remedies available under any other . . . State law”); Ehling v.
Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 672 (D.N.J. 2013) (“retaliation claims
under the LAD necessarily fall within the CEPA waiver provision”) (citation omitted).
Moreover, Plaintiff’s “whistle-blowing” activity was not made in good faith. See Cottrell
v. Family Practice Assocs., No. 15-2267, 2016 WL 3029921, at *3 (D.N.J. May 26, 2016) (finding
that Plaintiffs could not claim to have engaged in protected activity under NJLAD when they could
not demonstrate “a good faith basis” for filing a citizen’s complaint); Carmona v. Reports Int’l
Hotel, Inc. 189 N.J. 354, 373 (N.J. 2007) (“an unreasonable, frivolous, bad-faith, or unfounded
complaint cannot satisfy the statutory prerequisite necessary to establish liability for retaliation
under the LAD.”). Plaintiff told his subordinates that he planned to send the email to Lickovitch
months before he actually sent it on December 4, three days after Lickovitch reprimanded Plaintiff
for unprofessional behavior, and soon after Plaintiff’s “scathing,” “threatening” voicemail to
Lickovitch. Def. R.56 Stmt. ¶ 68-70, 73 n.14.
CEPA aims to protect employees who suffer retaliation after reporting violations in the
workplace. But it is not intended to be used to “assuage egos or settle internal disputes at the
workplace.” Capanna v. Tribecca Lending Corp, No. 06-5314, 2009 WL 900156 at *8 (D.N.J.
Mar. 31, 2009); Carmona, 189 N.J. at 373 (cautioning that NJLAD is not intended to be used “as
a sword . . . wielded by a savvy employee against his employer.”). Here, Plaintiff cannot
demonstrate that he engaged in protected activity under CEPA. He cannot show that he even
engaged in whistle-blowing activity, let alone that the report was in good faith. And even if he
could, for the reasons indicated in Part III.A, supra, he has not demonstrated that his termination
was causally related to his December 4 email. Accordingly, Plaintiff’s CEPA claim fails.
D. Plaintiff’s Aiding and Abetting Claims
Plaintiff alleges Conaway and Lickovitch aided and abetted Boston Scientific in disability
discrimination in violation of NJLAD. Am. Compl. ¶ 43-44. NJLAD provides for claims against
individual employees who “aid, abet, incite, compel or coerce” any acts forbidden under the
statute. N.J.S.A. § 10:5-12(e); see Tarr v. Ciasulli, 181 N.J.70, 83 (2004). To establish a claim
for aiding and abetting liability under NJLAD, a plaintiff must show that: “‘(1) the party whom
the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be
generally aware of his role as part of an overall illegal or tortious activity at the time that he
provides the assistance; [and] (3) the defendant must knowingly and substantially assist the
principal violation.’” Tarr, 181 N.J. 70, 84 (quoting Hurley v. Atlantic City Police Dep’t, 174 F.3d
95, 129 (3d Cir. 1999)).
Here, Plaintiff’s claims against Conaway and Lickovitch fail because there is no underlying
wrongful act which they aided. See Guarneri v. Buckeye Pipe Line Servs. Co., 205 F. Supp. 3d
606, 619 (D.N.J. 2016) (dismissing aiding and abetting claims against individual defendants when
underlying NJLAD claim was dismissed).
E. Plaintiff’s John Doe Claims
Plaintiff alleges that unidentified John Does 1-30 discriminated and retaliated against him.
Am. Compl. ¶ 46-49. These defendants have not been identified and there is no indication that
they were ever served with the Amended Complaint. Accordingly, Plaintiff’s claims against John
Does 1-30 are dismissed. See Guarneri, 205 F. Supp. 3d at 619 (granting summary judgment on
John Doe claims when plaintiff failed to identify or serve John Does within the time required by
Fed. R. Civ. P. 4(m) or show good cause for failing to effectuate service).
For the reasons set forth herein, Defendants’ motion for summary judgment is GRANTED.
An appropriate Order accompanies this Opinion.
Dated: November 30, 2017
/s Madeline Cox Arleo__________
Hon. Madeline Cox Arleo
United States District Judge
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