THOMAS v. KEOUGH et al

Filing 110

OPINION. Signed by Judge Brian R. Martinotti on 2/5/2024. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CLAUDE THOMAS,
Plaintiff/
Counterclaim-Defendant,
v.
PHILIP KEOUGH, et al.,

Case No. 2:20-cv-05758 (BRM) (JBC)
OPINION

Defendants/
Counterclaimants.
MARTINOTTI, DISTRICT JUDGE 1
Before the Court are two motions. The first is Defendants/Counterclaimants Philip Keough
(“Mr. Keough”), David Miller (“Mr. Miller”), Baruch Halpern (“Mr. Halpern”), YourLifeRx, Inc.
(“YourLifeRx”), and Millers of Wyckoff, Inc.’s (“Millers of Wyckoff”) (collectively,
“Defendants”) Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56.
(ECF No. 99.) Plaintiff/Counterclaim-Defendant Claude Thomas (“Plaintiff”) filed an opposition
(ECF No. 104), and Defendants filed a reply (ECF No. 107). The second is Plaintiff’s CrossMotion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 102.)
Defendants filed an opposition (ECF No. 107), 2 and Plaintiff filed a reply (ECF No. 108). Having

1

This matter was reassigned to this Court on November 29, 2023, upon the retirement of the
Honorable Kevin McNulty, District Judge. (ECF No. 109.)
2

Defendants submitted one consolidated brief in further support of their Motion for Summary
Judgment and in opposition to Plaintiff’s Cross-Motion for Summary Judgment.

reviewed the parties’ submissions 3 filed in connection with the Motion and Cross-Motion, and
having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the
reasons set forth below and for good cause having been shown, Defendants’ Motion for Summary
Judgment (ECF No. 99) is GRANTED and Plaintiff’s Cross-Motion for Summary Judgment (ECF
No. 102) is GRANTED IN PART and DENIED IN PART.

3

Defendants framed both their briefing and proposed order in support of their Motion for Summary
Judgment as seeking dismissal, with prejudice, of Plaintiff’s Second Amended Complaint. (See
generally ECF Nos. 99, 99-6.) Similarly, Plaintiff framed his briefing and proposed order in
support of his Cross-Motion for Summary Judgment as seeking dismissal of Defendants’
Counterclaims. (See generally ECF Nos. 102, 102-5.) There is an abundance of caselaw from the
Third Circuit and the District of New Jersey which essentially provides that a district court shall
enter judgment in favor of the party on the subject claims, rather than dismiss the claims subject
of a motion for summary judgment. See, e.g., Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119,
121 n.2 (3d Cir. 1999) (“Because the grant of summary judgment and the dismissal of the
complaint are inconsistent, we will disregard reference to the ‘dismissal’ of [plaintiff’s] complaint
and treat the record as a summary judgment record.”); see also Fanelli v. Centenary Coll., 112 F.
App’x 210, 212 n.2 (3d. Cir. 2004) (“When a district court grants a motion for summary judgment,
it should enter judgment for the prevailing party, not dismiss the complaint.”) (citing Cheminor
Drugs, 168 F.3d at 121 n.2); Sconiers v. United States, 896 F.3d 595, 596 n.2 (3d. Cir. 2018)
(affirming grant of summary judgment in favor of defendants and disregarding lower court’s order
to dismiss plaintiff’s claims with prejudice); Revell v. Jersey City, Civ. A. No. 06-32102009, 2009
WL 3152110, *1 n.2 (D.N.J. Sept. 28, 2009) (“The resolution of a motion for summary judgment
does not lead to a dismissal of the complaint, only the grant or denial of summary judgment.”);
Indus. Mar. Carriers v. Thomas Miller, Inc., Civ. A. No. 06-5625, 2009 WL 5216971, *1 n.1
(D.N.J. Dec. 29, 2009) (granting summary judgment in favor of defendant but disregarding
defendant’s request to dismiss plaintiff’s amended complaint); Bay Colony Condo. Assoc. v.
Scottsdale Ins. Co., Civ. A. No. 11-4865, 2012 WL 6725824, *5 n.5 (D.N.J. Dec. 26, 2012) (“A
grant of summary judgment on a claim and the dismissal of a claim are procedurally distinct.”).
Therefore, in addressing Defendants’ Motion for Summary Judgment and Plaintiff’s Cross-Motion
for Summary Judgment, any requests for dismissal are construed as requesting judgment in favor
of the movant.
2

I.

BACKGROUND
A.

Factual Background 4

This is an employment discrimination matter involving Plaintiff’s allegations that
Defendants discriminated against him (1) on the basis of race/color and (2) on the basis of age—
resulting in constructive discharge from his employment. (See generally ECF No. 79 (Second Am.
Compl.).) Plaintiff also alleges he was subject to retaliation after objecting to a scheme of illegal
kickbacks. (Id. ¶¶ 25–28.) Among other counterclaims, Defendants allege Plaintiff
misappropriated trade secrets and engaged in unauthorized computer data access after he was no
longer employed by YourLifeRx. (See generally ECF No. 82 (Answer and Countercls.).)
Plaintiff is a fifty-four-year-old male who identifies his race as African American. (ECF
No. 104-2 (Pl.’s CMF in Opp’n of Mot. for Summ. J.) ¶ 1.) Plaintiff testified he began his
employment with Millers of Wyckoff, a compounding and homecare pharmacy, as a pharmacy

4

The parties submitted eight different statements setting forth and responding to the material facts.
The following five are related to Defendants’ Motion for Summary Judgment: (1) Defendants’
Statement of Material Facts (“SMF”) in Support of Motion for Summary Judgment (ECF No. 991); (2) Plaintiff’s Counterstatement of Material Facts (“CMF”) in Opposition to Motion for
Summary Judgment (ECF No. 104-2); (3) Plaintiff’s Response to Defendants’ Statement of
Material Facts (ECF No. 104-3); (4) Defendants’ Response to Plaintiff’s CMF (ECF No. 107-6);
(5) Defendants’ Reply to Plaintiff’s Response to Defendants’ SMF (ECF No. 107-7). The
following three are related to Plaintiff’s Cross-Motion for Summary Judgment: (1) Plaintiff’s SMF
in Support of Cross-Motion for Summary Judgment (ECF No. 102-3); (2) Defendants’ CMF in
Opposition to Plaintiff’s Cross-Motion for Summary Judgment (ECF No. 107-5); (3) Plaintiff’s
Response to Defendants’ CMF (ECF No. 108-1). There are inconsistencies throughout these eight
different statements, most significantly, conflicting statements from the same party. In its best
efforts to resolve these inconsistencies, the Court provides the following facts. Unless otherwise
noted, the following facts are undisputed or were admitted by the opposing party in one of these
statements.
3

technician in February 2001. 5 (ECF No. 99-1 (Defs.’ SMF in Supp. of Mot. for Summ. J.) ¶ 11
(citing Claude Thomas Dep. 41:14–42:13).) Plaintiff was promoted several times during his tenure
with Millers of Wyckoff; Plaintiff’s last promotion, prior to the sale of Millers of Wyckoff in 2019,
was to the Director of Marketing position at a base salary of $90,000.00. (ECF No. 99-1 ¶ 13
(citing Claude Thomas Dep. 44:4–15, 51:15–16).) In his position as Director of Marketing,
Plaintiff formulated pricing policies, generated lists of potential doctors that he would visit on sales
calls as well as a list of physicians that he developed after making sales calls and generating
business. (ECF No. 99-1 ¶ 17 (citing Claude Thomas Dep. 49:9–51:3).)
Mr. Miller was the owner and principal of Millers of Wyckoff until he sold it in January
2019. (ECF No. 104-2 ¶ 2; ECF No. 107-6 (Defs.’ Resp. to Pl.’s CMF) ¶ 2).) Prior to the sale, Mr.
Keough, 6 a prospective buyer, was presented with complaints about Plaintiff from Plaintiff’s coworkers when inquiring whether Plaintiff should be retained by YourLifeRx. (ECF No. 99-1 ¶¶

5

Plaintiff certifies he was employed by Millers of Wyckoff from 2000 until May 2019. (ECF No.
102-3 (Pl.’s SMF in Supp. of Cross-Mot. for Summ. J.) ¶ 1 (citing (ECF No. 102-1 (Certification
of Claude Thomas ¶ 1)).) Further, Plaintiff asserts he was employed in the position of General
Manager. (ECF No. 104-2 (Pl.’s CMF in Opp’n of Mot. for Summ. J.) ¶ 1 (citing (ECF No. 104-1
(Certification of Claude Thomas in Opp’n of Mot. for Summ. J.) ¶ 1 )).) However, Plaintiff
ultimately admitted the contents of his testimony and Defendants’ SMF, that he began his
employment with Millers of Wyckoff as a pharmacy technician in February 2001. (ECF No. 1043 (Pl.’s Resp. to Defs.’ SMF) ¶ 4).) In the interest of judicial economy, the Court will not list other
inconsistencies of the eight provided statements.
6

Plaintiff certifies both Mr. Keough and Mr. Halpern are the principals in YourLifeRx. (ECF No.
104-2 ¶ 2 (citing ECF No. 104-1 (Certification of Claude Thomas in Opp’n of Mot. for Summ. J.
¶ 2)).) However, both Mr. Keough and Mr. Halpern testified Mr. Halpern is currently the sole
shareholder of YourLifeRx. (ECF No. 107-6 ¶ 2 (citing Philip Keough Dep. 16:11–17; Baruch
Halpern Dep. 12:20–13:11).) Based on Mr. Halpern’s testimony, the Court will make the logical
inference that Mr. Keough was acting as a prospective buyer in January 2019 because both he and
Mr. Halpern owned shares in YourLifeRx at the time. (Baruch Halpern Dep. 13:9–12.) The parties
do not provide further information as to either Mr. Keough or Mr. Halpern’s exact position and/or
role in YourLifeRx or Millers of Wyckoff during the relevant events.

4

22–26 (citing Certification of John K. Bennett, Esq. (“Bennett Cert.”), Ex. 10, Sept. 3, 2018 Email Chain; Claude Thomas Dep. 56:11–67:23).) In December 2018, Plaintiff sent correspondence
to Mr. Keough and Mr. Halpern stating the reasons why Plaintiff believed he should be considered
for a new role in YourLifeRx. (ECF No. 99-1 ¶ 28 (citing Bennett Cert., Ex. 12, Dec. 2018
Correspondence; Claude Thomas Dep. 73:2–76:22).)
On December 29, 2018, Mr. Miller sent an e-mail to several Millers of Wyckoff employes,
including Plaintiff, explaining the need to make the company profitable because Mr. Keough’s
investors were demanding a twenty-five percent reduction in staffing costs. (ECF No. 99-1 ¶ 30
(citing Claude Thomas Dep. 76:23–79:21).) On that same day, Plaintiff replied to Mr. Miller’s email with an agenda plan that would purportedly save at least $300,000 in operation costs by
reducing employee hours and salaries, among other proposals. (ECF No. 99-1 ¶¶ 31–32 (citing
Bennett Cert., Ex. 11, Dec. 29, 2018 Correspondence and Agenda Plan; Claude Thomas Dep.
80:5–82:25).)
On January 3, 2019, Plaintiff sent an e-mail entitled “Uma here” to his personal e-mail
which attached Millers of Wyckoff’s doctors list. 7 (ECF No. 107-5 (Defs.’ CMF in Opp’n of Mot.
for Summ. J.) ¶ 10 (citing Bennett Suppl. Cert., Ex. 7, Jan. 3, 2019 Correspondence).) Plaintiff
testified he could not recall the reason he sent the doctor’s list to his personal e-mail address and/or
the signification of the caption “Uma here.” (ECF No. 107-5 ¶ 11 (citing Claude Thomas Dep.
170:17–171:13).)
On or about January 27, 2019, Mr. Miller sold Millers of Wyckoff to Mr. Halpern, which

7

Uma Ramasamy (“Ms. Ramasamy”) worked at Millers of Wyckoff as a pharmacologist prior to
and after its sale; Uma now works at Medicos Pharmacy (“Medicos”) with Plaintiff. (ECF No.
107-5 ¶¶ 36–37.)
5

is now being operated as a YourLifeRx company under the same name (Millers of Wyckoff). (ECF
No. 99-1 ¶¶ 3, 33 (citing David Miller Dep. 13:8–12; Claude Thomas Dep. 85:16–18).) Following
the sale, Plaintiff was informed by Mr. Keough that he would continue his employment with
YourLifeRx as Front Store Manager. (ECF No. 99-1 ¶ 34 (citing Claude Thomas Dep. 85:19–
87:10; Bennett Cert., Ex. 13, Jan. 28, 2019 Memorandum from Mr. Keough).) In the position of
Front Store Manager, Plaintiff was responsible for overseeing all the non-pharmacy teams and
leading sales efforts. (Id.) Due to these new responsibilities, Plaintiff “was in the store 100 percent”
of the time as Mr. Keough told Plaintiff to stop his marketing efforts and focus on sales in the
store. (ECF No. 99-1 ¶ 36 (citing Claude Thomas Dep. 87:3–10, 96:10–97:6).)
After the sale, Mr. Miller was also employed by YourLifeRx as the Pharmacist-In-Charge
of Millers of Wyckoff. (ECF No. 104-2 ¶ 2 (citing ECF No. 104-1 ¶ 2); Bennett Cert., Ex. 13, Jan.
28, 2019 Memorandum from Mr. Keough).) On February 7, 2019, Mr. Miller e-mailed Mr.
Halpern and Mr. Keough to inform them of “dire” situations at the store including a significant
decline in prescription sales numbers which could be solved by Plaintiff conducting “his most
important role in marketing the company and specifically compounding” because he was an
effective salesman. (ECF No. 99-1 ¶ 37 (citing Claude Thomas Dep. 60:3–61:4, 97:16–98:2,
111:9–12; Bennett Cert., Ex. 14, Feb. 7, 2019 Correspondence).) 8
Plaintiff began to have conflicts with employees in the store starting in March 2019. (ECF

8

In his response to Defendants’ SMF, Plaintiff “neither admits nor denies the allegations of ¶ 37,
and leaves Defendants to their proofs. He does say that even if the decision to put him out of the
store had a business purpose, it also had a racial component.” (ECF No. 104-3 ¶ 8.) However,
Plaintiff does not cite to any support for this contention. The Court notes Plaintiff frequently admits
that statements were made but denies the truth of those statements. Unless relevant to the outcome
of the decision, and because the Court is citing statements from the record, the Court will not point
out each objection.
6

No. 99-1 ¶ 39 (citing Claude Thomas Dep. 98:3–7).) On March 28, 2019, Plaintiff received an email from his coworker, Kematta Trahan (“Ms. Trahan”), wherein Ms. Trahan complained of
Plaintiff’s harassment and bullying. (ECF No. 99-1 ¶ 40 (citing Claude Thomas Dep. 100:2–23;
Bennett Cert., Ex. 15, Mar. 28, 2019 E-Mail from Ms. Trahan).)
In early April 2019, Plaintiff sent an e-mail to Mr. Keough, Mr. Miller, and Mr. Halpern
concerning an issue of alleged kickbacks to a sales representative, Zahid Qureshi (“Mr. Qureshi”),
for sales of certain compound prescriptions. 9 (ECF No. 99-1 ¶ 41 (citing Bennett Cert., Ex. 16,
Apr. 2019 E-Mail Chain).) In response to Plaintiff’s e-mail, Mr. Miller stated “Zahid was a
legitimate 1099 independent contractor.” (ECF No. 99-1 ¶ 43 (citing Bennett Cert., Ex. 16, Apr.
2019 E-Mail Chain).) Mr. Halpern also responded by stating “there will be zero tolerance for
anything that even remotely looks or feels unethical or could be construed as a kickback. We will
only run our business with only the highest levels of integrity and ethics. Anyone found violating
this will not work for us.” (ECF No. 99-1 ¶ 44 (citing Bennett Cert., Ex. 16, Apr. 2019 E-Mail
Chain).)
On May 16, 2019, Mr. Keough notified Plaintiff about the restructuring of YourLifeRx and
offered Plaintiff the position of Director of Sales and Marketing “to capitalize on [his] selling
skill.” (ECF No. 99-1 ¶¶ 46–47 (citing Bennett Cert., Ex. 18, May 2019 E-mail Chain).) This
position, contingent on the signing of a non-compete agreement, would include a base salary of
$60,000.00, an additional payment of “6.5% commission on all new business tied directly to new
doctors” that Plaintiff brought in with no cap on the amount of the commission, and a $500.00 a
month car allowance to cover transportation. (ECF No. 99-1 ¶¶ 46–48 (citing May 2019 E-mail

9

Defendants assert Plaintiff and Ms. Ramasamy established an agreement in 2014 to pay Mr.
Qureshi “15% of the sales that he brings,” and to report his sales commissions on an IRS Form
1099. (ECF No. 99-1 ¶ 45 (citing Bennett Cert., Ex. 17, 2014 and 2015 e-mails re: Zahid Qureshi).)
7

Chain; Claude Thomas Dep. 117:15–119:10).)
On May 17, 2019, Plaintiff received an e-mail from Sean Bucher (“Mr. Bucher”), a coworker, with a link to YourLifeRx’s compounding price list. (ECF No. 107-5 ¶ 20 (citing Claude
Thomas Dep. 119:20–120:2; Bennett Suppl. Cert., Ex. 1, May 17, 2019 Correspondence from Mr.
Bucher).) At his deposition, Plaintiff testified he could not recall if he asked Mr. Bucher to send
him the compounding price list. (ECF No. 107-5 ¶ 21 (citing Claude Thomas Dep. 119:20–121:7).)
Four minutes after receiving the compounding price list from Mr. Bucher, Plaintiff received an email entitled “PRICE LIST,” from Lynn Gruenberg (“Ms. Gruenberg”), another co-worker, which
contained an attachment of a price list for erectile dysfunction (“ED”) medication. (ECF No. 1075 ¶ 22 (citing Claude Thomas Dep. 124:9–16; Bennett Suppl. Cert., Ex. 2, May 17, 2019
Correspondence from Ms. Gruenberg).) Plaintiff testified he could not recall whether he printed
the compounding list and/or the ED price list. (ECF No. 107-5 ¶ 23 (citing Claude Thomas Dep.
123:17–18, 124:24–125:5).)
On May 19, 2019, Plaintiff responded to Mr. Keough’s May 16, 2019 e-mail by stating the
$30,000 salary decrease would be a “hardship on [his] family.” (ECF No. 99-1 ¶ 49 (citing May
2019 E-mail Chain; Claude Thomas Dep. 117:15–119:10, 130:11–131:23).) Plaintiff presented a
counterproposal in which he refused to sign the non-compete and requested a base salary of
$75,000, a commission of 15% the first year, a commission of 2% the second year, and a
commission of 1% thereafter. (Id.)
Thereafter, Mr. Keough responded to Plaintiff’s counterproposal by stating YourLifeRx
was “eliminating the [Front Manager] position to streamline the operations” and YourLifeRx “will
always try to be fair when considering a job and its related compensation” but in order to negotiate
Plaintiff’s base salary and commission, Plaintiff must be willing to sign the non-compete

8

agreement. (ECF No. 99-1 ¶ 51 (citing May 2019 E-mail Chain; Claude Thomas Dep. 117:15–
119:10).) On May 20, 2019, Plaintiff responded “I will not be able to sign this agreement due to
dissolve in position and financial hardship on my family.” (ECF No. 99-1 ¶ 52 (citing May 2019
E-mail Chain; Claude Thomas Dep. 141:10–142:13).) Plaintiff admitted that by sending this
response, he was resigning from his employment with YourLifeRx. (ECF No. 99-1 ¶ 53 (citing
Claude Thomas Dep. 141:10–142:13).)
Plaintiff raises allegations from his experiences with Mr. Keough in support of his claims.10
(See generally ECF No. 104-2 (citing ECF No. 104-1).) As to the employment discrimination
claims, Plaintiff alleges: Mr. Miller warned Plaintiff Mr. Keough had “Southern views”; Mr.
Keough was not pleased to employ an African American manager; Mr. Keough told Mr. Miller to
fire multiple employees because of their age; Mr. Keough threatened Plaintiff by telling him he
would find a replacement employee; Mr. Keough told Plaintiff he “want[ed] to make the store
younger, with employees and products”; Mr. Keough told him several times he intended to make
the “workforce younger.” (ECF No. 79 ¶¶ 8–14; ECF No. 104-2 ¶¶ 4–6, 8 (citing ECF No. 104-1
¶¶ 4–9).) As to the retaliation claim, Plaintiff alleges Mr. Miller: would “recycle” the drugs
customers placed in a drop box; returned medications which were not picked up by customers back
to inventory without reversing insurance billing; asked Plaintiff to falsify refrigerator temperature
logs; had non-pharmacy staff involved in filling prescriptions; would provide customers with
additional pills before they were due for a refill; and engaged in “kickbacks” with a doctor’s office.
(ECF No. 79 ¶¶ 15–16; ECF No. 104-2 ¶¶ 12–14 (citing ECF No. 104-1 ¶¶ 12–14).) Although

10

Based on a review of the Second Amended Complaint (ECF No. 79 ¶¶ 8–16), the Certification
of Claude Thomas in Opposition to Defendants’ Motion for Summary Judgment (ECF No. 104-1
¶¶ 4–9, 12–14), and Plaintiff’s CMF in Opposition of the Motion for Summary Judgment (ECF
No. 104-2 ¶¶ 4–6, 8, 12–14), it is clear Plaintiff repeated, almost verbatim, the allegations
contained in the Second Amended Complaint in both his own Certification and the CMF.
9

Plaintiff admitted he did not initially mention racism, discrimination, or a hostile work
environment as reasons why he refused to sign the offer of employment (ECF No. 99-1 ¶ 54 (citing
Claude Thomas Dep. 140:21–24)), Plaintiff asserts the offered position and salary decrease were
because of racial discrimination and/or retaliation and he “felt compelled to resign because of the
ageist and racially hostile environment that his bosses had created in the past several months.”
(ECF No. 104-2 ¶¶ 15–16 (citing ECF No. 104-1 ¶¶ 15).)
On August 23, 2019, Mr. Miller received an e-mail from a pharmacist at Jiffy Scripts Rx
which stated the pharmacist found both Millers of Wyckoff and YourLifeRx’s files on Jiffy Scripts
Rx’s database. (Bennett Suppl. Cert., Ex. 9, Aug. 23, 2019 Correspondence.) On that same day,
Mr. Miller sent an e-mail to Mr. Halpern and Mr. Keough which stated:
[The Jiffy Scripts Rx Pharmacist] told me that she and the new
Pharmacists at Jiffy were looking at a computer in the lab and found
things she knew were inappropriate. She showed me a photo she had
taken of a screen which contained the spread sheet I had kept up at
Millers for over 10 years showing the breakdown of sales by
department and an analysis of trends. You have seen this
spreadsheet as it was the sales report I gave to the accountant every
month. The only other person who had this was Claude. I reviewed
these numbers with him every month as he was the sales manager to
point out where our sales had increased or declined to give us an
idea of where to focus our sales efforts. It is apparent that he stole a
copy of this report when he left and is sharing it with at least this
one competitor. More disturbing is [the Jiffy Scripts Rx
Pharmacist]’s revelation that she also saw a report showing all of
our compound prices and PATIENT names and addresses. She did
not take a photo of this because she was afraid of violating HIPAA.
I told her that, since it was Millers [of Wyckoff] data she was not
violating HIPAA and asked her to make a copy of this file for us so
we can see what it is. So, now we know that Claude also stole patient
information and price sheets and has given them to at least one
competitor.
(Id.) Thereafter, on September 2, 2019, Plaintiff sent an e-mail to Robert Beson (“Mr. Beson”) of
Progurt, a probiotic manufacturer, which stated: “Millers [of Wyckoff] shouldn’t be a distraction

10

to the potential at hand. Just my thoughts. Please let me know next steps, Uma awaits as well.” 11
(ECF No. 107-5 ¶ 32 (citing Bennett Suppl. Cert., Ex. 10, Plaintiff’s E-mails with Robert Beson).)
As a result of this conduct, Millers of Wyckoff/YourLifeRx sent Plaintiff a letter demanding
Plaintiff cease and desist disseminating confidential information (the “October 7, 2019 Cease and
Desist Letter”). (ECF No. 107-5 ¶ 34 (citing Bennett Suppl. Cert., Ex. 11, October 7, 2019 Cease
and Desist Letter).)
Despite receiving and understanding the October 7, 2019, Cease and Desist Letter, 12
Plaintiff sent a fax on October 23, 2019 (the “October 2019 Fax”) to a physician’s office on behalf
of Plaintiff’s current employer, Medicos. (ECF No. 107-5 ¶ 36 (citing Bennet Suppl. Cert. Ex. 12,
October 2019 Fax Cover Sheet).) The October 2019 Fax: introduced Plaintiff and Ms. Ramasamy
and stated “[d]ue to the sale of Millers we have now joined Medicos”; detailed Medicos’s pricing
on ED medication; and referenced a price list which was enclosed. (Id.) Syed Hussaini (“Mr.
Hussaini”), a managing member of Medicos, testified Plaintiff created the price list referenced in
the October 2019 Fax. (ECF No. 107-5 ¶ 38 (citing Syed Hussaini Dep. 114:8–116:4).)
Based on Plaintiff’s alleged misconduct, Defendants assert Plaintiff is liable for damages
because he utilized confidential, proprietary, and trade secret information to compete against
Defendants resulting in Plaintiff breaching his confidentiality obligations. (See generally ECF No.
82 (Countercls.).) YourLifeRx utilized the same employee handbook as Millers of Wyckoff (the
“Employee Handbook”), which notes YourLifeRx is committed to equal opportunity employment,

11

Plaintiff admitted he did not produce the entire e-mail thread with Mr. Beson because Plaintiff
had deleted portions. (ECF No. 107-5 ¶ 33 (citing Claude Thomas Dep. 162:19–164:1).)
12

Plaintiff acknowledged he had received and understood the letter but stated he did not respond.
(ECF No. 107-5 ¶ 35 (citing Claude Thomas Dep. 160:6–161:8).)
11

and strives to maintain an environment free of harassment, discrimination, and retaliatory conduct.
(ECF No. 99-1 ¶ 4 (citing Bennett Cert., Ex. 5, the Employee Handbook).) YourLifeRx’s
employees are encouraged to raise concerns and make reports of discrimination and/or retaliation
without fear of reprisal. (ECF No. 99-1 ¶ 5 (citing the Employee Handbook).)
The Employee Handbook also contains a confidentiality agreement that requires
YourLifeRx’s employees during employment and following the conclusion of employment “to
hold in strictest confidence and not disclose Confidential Information.” (ECF No. 99-1 ¶ 9 (citing
Claude Thomas Dep. 94:9–96:5; Bennett Cert., Ex. 7, the Employee Handbook’s Signature Page).)
At his deposition, Plaintiff acknowledged he signed the Employee Handbook’s signature page on
February 19, 2019, thereby indicating that he received, read, and agreed to abide by all current and
future policies contained in the Employee Handbook, including the Confidentiality Agreement.
(ECF No. 99-1 ¶ 10 (citing Claude Thomas Dep. 94:9–96:5).)
B.

Procedural History

On May 11, 2020, Plaintiff filed the original Complaint. (ECF No. 1.) On August 3, 2020,
Defendants filed their Answer to the original Complaint. (ECF No. 3.) On December 22, 2020,
Plaintiff filed the Amended Complaint. (ECF No. 15.) On December 28, 2020, the Honorable
James B. Clark, U.S.M.J. entered the Pretrial Scheduling Order which required the parties to “seek
leave of the Court by way of a letter application” prior to filing a dispositive motion. (ECF No.
16.) Plaintiff filed a corrected Amended Complaint on January 26, 2021. (ECF No. 21.)
On February 15, 2021, Mr. Miller filed a Motion to Dismiss the Second and Fourth Counts
of the Amended Complaint. (ECF No. 22.) The next day, Mr. Miller filed: a notice of withdrawal
of the Motion to Dismiss (ECF No. 23); and a letter which acknowledged his failure to comply
with the requirements of the Pretrial Scheduling Order and requested Judge Clark’s permission to

12

refile the Motion to Dismiss. (ECF No. 24.) Also, on February 16, 2021, Mr. Halpern, Mr. Keough,
and YourLifeRx (the “YourLifeRx Defendants”) filed an Answer to the Amended Complaint and
Counterclaims. (ECF No. 25 (Answer and Countercls.).)
On February 17, 2021, Judge Clark entered an Order allowing Mr. Miller to file his Motion
to Dismiss. (ECF No. 26.) Thereafter, Mr. Miller refiled his Motion to Dismiss the Second and
Fourth Counts of the Amended Complaint. (ECF No. 27.) On February 20, 2021, Plaintiff filed an
Answer to the YourLifeRx Defendants’ Counterclaims. (ECF No. 31.)
On February 22, 2021, Judge Clark entered an Order allowing Plaintiff to file a CrossMotion seeking leave to amend the Amended Complaint in response to Mr. Miller’s Motion to
Dismiss. (ECF No. 32.) On February 28, 2021, Plaintiff filed: an Opposition to Mr. Miller’s
Motion to Dismiss (ECF No. 33); and a Cross-Motion seeking leave to file a Second Amended
Complaint (ECF No. 34). On March 1, 2021, Plaintiff filed a corrected Cross-Motion. (ECF No.
35.) On March 22, 2021, Judge Allen entered a Consent Order which stayed and administratively
terminated Mr. Miller’s Motion to Dismiss and Plaintiff’s Cross-Motion seeking leave to file a
Second Amended Complaint. (ECF No. 41.) On April 21, 2021, Judge Allen entered another
Consent Order restoring the aforementioned motions to the motion calendar. (ECF No. 45.)
On December 15, 2021, Judge Allen entered an Order: granting Plaintiff’s unopposed
Cross-Motion seeking leave to file a Second Amended Complaint; and terminating Mr. Miller’s
pending Motion to Dismiss as moot. (ECF No. 78.) On the same date, Plaintiff filed his Second
Amended Complaint alleging violations of: Title VII of the Civil Rights Act of 1967 (“Title VII”),
42 U.S.C. § 2000e, et seq. (First Count); the New Jersey Law Against Discrimination ( “NJLAD”),
N.J. Stat. Ann. § 10:5-1, et seq. (Second Count); the Age Discrimination in Employment Act

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(“ADEA”), 29 U.S.C. § 621, et seq. (Third Count); and the Conscientious Employee Protection
Act (“CEPA”), N.J. Stat. Ann. § 34:19-1, et seq. (Fourth Count). (ECF No. 79.)
On January 12, 2022, Defendants filed their Answer and Counterclaims in response to
Plaintiff’s Second Amended Complaint. (ECF No. 82 (Answer and Countercls.).) Defendants
raised ten counterclaims including: NJLAD claims brought in bad faith (First Counterclaim);
frivolous complaint under N.J. Stat. Ann. § 2A:15-59.1 (Second Counterclaim); malicious abuse
of legal process (Third Counterclaim); malicious prosecution (Fourth Counterclaim); conversion
of property (Fifth Counterclaim); breach of confidentiality agreements (Sixth Counterclaim);
trespass to property (Seventh Counterclaim); violation of the New Jersey Trade Secrets Act (the
“NJTSA”), N.J. Stat. Ann. § 56:15-1, et seq. (Eighth Counterclaim); violation of the New Jersey
Computer Related Offenses Act (the “NJCROA”), N.J. Stat. Ann. § 2A:38a-1, et seq. (Ninth
Counterclaim); violation of the Computer Fraud and Abuse Act (the “CFAA”), 18 U.S.C. § 1030,
et seq. (Tenth Counterclaim). (Id.)
Judge Allen conducted a settlement conference on February 9, 2023. (ECF No. 97.)
Ultimately, settlement efforts were unsuccessful. On February 14, 2023, Judge Clark entered a
Letter Order requiring “[a]ny motions for summary judgment [to] be filed by April 14, 2023.”
(ECF No. 98.)
On April 14, 2023, Defendants filed the pending Motion for Summary Judgment. (ECF
No. 99.) Thereafter, Plaintiff filed a letter requesting additional time to file a Cross-Motion and an
opposition to Defendants’ Motion for Summary Judgment. (ECF No. 100.) On April 17, 2023,
Judge Allen entered a Letter Order which granted Plaintiff’s request and provided that “Plaintiff’s
Opposition shall be filed by May 15, 2023.” (ECF No. 101.)
On May 15, 2023, Plaintiff filed a Cross-Motion seeking summary judgment on

14

Defendants’ counterclaims (ECF No. 102) and an Opposition to Defendants’ Motion for Summary
Judgment (ECF No. 104). On the same date, Defendants filed a letter asserting Judge Allen’s April
17, 2023 Letter Order did not provide Plaintiff with additional time to file his cross-motion thus
Defendants requested Judge Allen strike Plaintiff’s Cross-Motion. (ECF No. 103 at 1–2.) On May
16, 2023, Judge Allen entered a Letter Order denying Defendants’ request to strike Plaintiff’s
Cross-Motion. (ECF No. 106.) On June 12, 2023, Defendants filed a brief both in further support
of their Motion for Summary Judgment and in opposition to Plaintiff’s Cross-Motion for Summary
Judgment. (ECF No. 107.) On June 18, 2023, Plaintiff filed a reply in further support of his CrossMotion for Summary Judgment. (ECF No. 108.)
On November 29, 2023, the matter was reassigned from the Honorable Kevin McNulty,
U.S.D.J. to the undersigned. (ECF No. 109.)
II.

LEGAL STANDARD
Summary judgment is appropriate “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.” Fed. R. Civ. P.
56(a). “On motions for summary judgment, the movant shall furnish a statement which sets forth
material facts as to which there does not exist a genuine issue, in separately numbered paragraphs
citing to the affidavits and other documents submitted in support of the motion.” L. Civ. R. 56.1(a).
A party asserting a genuine dispute of material fact must support the assertion by either “citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials” or “showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). A factual dispute “is

15

genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the
non-moving party,” and “is material only if it might affect the outcome of the suit under governing
law.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “Unsupported allegations, subjective beliefs, or argument
alone, however, cannot forestall summary judgment.” Read v. Profeta, 397 F. Supp. 3d 597, 625
(D.N.J. 2019) (citations omitted). Irrelevant or unnecessary factual disputes will also not preclude
a grant of summary judgment. See Anderson, 477 U.S. at 248. Moreover, “mere speculation does
not create genuine issues of material fact.” Dellapenna v. Tredyffrin/Easttown Sch. Dist., 449 F.
App’x 209, 215–16 (3d Cir. 2011) (citing Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12
(3d Cir. 1990)).
The party moving for summary judgment has the initial burden of showing the basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a movant adequately supports
its summary judgment motion, the burden shifts to the nonmovant to “go beyond the pleadings
and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on
file,’ designate specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477
U.S. at 324. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255)). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150−51 (2000) (quoting Anderson, 477 U.S. at 255). In other words, in
deciding a party’s summary judgment motion, the court’s role is not to evaluate the evidence and

16

decide the truth of the matter, but to determine whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 255. “Summary judgment is appropriate only when there are no genuine
issues of material fact, drawing all justifiable inferences in favor of the nonmovant.” Adams v.
Fayette Home Care & Hospice, 452 F. App’x 137, 139 (3d Cir. 2011) (citing Anderson, 477 U.S.
at 248, 255).
If the moving party bears the burden of proof at trial, summary judgment is not appropriate
if the evidence is susceptible to different interpretations or inferences by the trier of fact. Hunt v.
Cromartie, 526 U.S. 541, 553 (1999); see also id. at 553 n.9 (noting “summary judgment is rarely
granted in a plaintiff’s favor in cases where the issue is a defendant’s racial motivation, such as
disparate treatment suits under Title VII or racial discrimination claims under 42 U.S.C. § 1981”).
On the other hand, if the non-moving party bears the burden of proof at trial, “summary judgment
is warranted if the nonmovant fails to ‘make a showing sufficient to establish the existence of an
element essential to [its] case.’” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (alteration in
original) (quoting Celotex Corp., 477 U.S. at 322). A “genuine issue as to any material fact” cannot
exist if a party fails “to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477
U.S. at 322–23. “[A] complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Id. at 323. A material fact raises a
“genuine” dispute “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Williams v. Borough of W. Chester, 891 F.2d 458, 459 (3d Cir. 1989) (quoting
Anderson, 477 U.S. at 248).

17

III.

DECISION
Defendants filed a motion seeking summary judgment on the four counts of the Second

Amended Complaint. (ECF Nos. 99, 99-6 (Defs.’ Proposed Order).) Plaintiff filed a cross-motion
seeking summary judgment on eight of the ten Counterclaims. (ECF Nos. 102, 102-5 (Pl.’s
Proposed Order).) The Court addresses each in turn. 13
A.

Defendants’ Motion for Summary Judgment
1.

Summary Judgment in Favor of YourLifeRx and Millers of Wyckoff Is
Warranted as to Plaintiff’s Title VII Claim (First Count)

Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or
national origin. Slagle v. Cnty. of Clarion, 435 F.3d 262, 265 (3d Cir. 2006) (citing 42 U.S.C. §
2000e-2). “To prevail on a Title VII claim of discrimination or retaliation, a plaintiff must first
establish a prima facie case.” Rhoden v. Childs. Hosp. of Pittsburgh of UPMC Health Sys., 749 F.
App’x 86, 88 (3d Cir. 2018). A prima facie case of national origin or race discrimination requires
a plaintiff to establish that: “(1) she is a member of a protected class; (2) she was qualified for her
position; (3) she suffered an adverse employment action; and (4) the adverse employment action
occurred under circumstances that give rise to an inference of unlawful discrimination.” Id.
(citations omitted).
“[N]ational origin and race are protected classes under Title VII[.]” Santos v. Iron
Mountain Film & Sound, Civ. A. No. 12-04214, 2013 WL 6054832, at *4 (D.N.J. Nov. 14, 2013).
Discrete acts of discrimination can include “termination, failure to promote, denial of transfer, or
refusal to hire.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). The Third
Circuit has described an adverse employment action “as an action by an employer that is serious

13

See supra footnote 3.
18

and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of
employment.” Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) (quoting Storey v.
Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)). The Third Circuit has held “direct
economic harm is an important indicator” of a “serious and tangible” adverse employment action.
Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir. 1999). Further, an indirect economic
harm may be deemed “a tangible adverse employment action” when “an employer’s act
substantially decreases an employee’s earning potential.” Id. (citing Booker v. Budget Rent-A-Car
Sys., 17 F. Supp. 2d 735 (M.D. Tenn. 1998)). A plaintiff can show circumstances giving rise to an
inference of unlawful discrimination by either (1) introducing “evidence of comparators (i.e.,
similarly situated employees who (a) were not members of the same protected class and (b) were
treated more favorably under similar circumstances)”; or (2) relying on “circumstantial evidence
that otherwise shows a causal nexus between his membership in a protected class and the adverse
employment action.” Greene v. Virgin Islands Water & Power Auth., 557 F. App’x 189, 195 (3d
Cir. 2014).
The McDonnell Douglas burden-shifting framework applies to claims of discrimination
under Title VII. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). This framework has three basic steps. First, the
plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence.
Sarullo, 352 F.3d at 797 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). Second,
if the plaintiff establishes a prima facie case of discrimination, then the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its action or decision. Sarullo,
352 F.3d at 797 (quoting McDonnell Douglas, 411 U.S. at 802). The employer “satisfies its burden
of production by introducing evidence which, [if] taken as true, would permit the conclusion that

19

there was a nondiscriminatory reason for the unfavorable employment decision.” Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citing St. Mary’s Honor Ctr., 509 U.S. at 509). “The
employer need not prove that the tendered reason actually motivated its behavior, as throughout
this burden-shifting paradigm the ultimate burden of proving intentional discrimination always
rests with the plaintiff.” Id. (citing Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253−54
(1981)). Third, if the employer meets this “relatively light burden,” Fuentes, 32 F.3d at 763, then
“the burden returns to the [plaintiff], who must show by a preponderance of the evidence that the
employer’s proffered reason is pretextual.” Anderson v. Boeing Co., 694 F. App’x 84, 86 (3d Cir.
2017) (citing McDonnell, 411 U.S. at 804). To show pretext, “a plaintiff must point to direct or
circumstantial evidence ‘from which a factfinder could reasonably either (1) disbelieve the
employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason
was more likely than not a motivating or determinative cause of the employer’s action.’” Jackson
v. Planco, 431 F. App’x 161, 165 (3d Cir. 2011) (quoting Fuentes, 32 F.3d at 764). “An employer
would be entitled to judgment as a matter of law if . . . the plaintiff created only a weak issue of
fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted
independent evidence that no discrimination had occurred.” Sanderson Plumbing, 530 U.S. at 143
(internal citations omitted).
If each party meets its burden at each stage of this framework, then summary judgment is
inappropriate. See Whishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007). But summary judgment
may be appropriate if a party fails to meet its burden under this framework. Dellapenna, 449 F.
App’x at 215−16.
Defendants assert they are entitled to summary judgment as to Plaintiff’s claims because:
there are no genuine issues of material fact as to Plaintiff’s claims of discrimination and/or
20

retaliation. (ECF No. 99-2 at 4.) Defendants contend Plaintiff did not suffer an adverse
employment action because Plaintiff voluntarily resigned. 14 (Id. at 4–6.) Further, Defendants argue
Plaintiff’s claims fail because he cannot establish he suffered an adverse employment action and/or
the adverse employment action occurred under circumstances giving rise to an inference of
discrimination. (Id. at 6.) Defendants assert Plaintiff was not constructively discharged because
there was no hostile work environment present. (Id. at 6–9.) Defendants submit “[t]he fact that
Plaintiff would have been just fine working for [YourLifeRx] and with Defendants Miller, Keough,
and Halpern for more money prevents him from establishing an adverse employment action.” (Id.
at 9.)
In opposition, Plaintiff claims the adverse employment at issue is that he was constructively
discharged due to feeling “compelled to resign because of the ageist and racially hostile
environment.” (ECF No. 79 ¶ 17; ECF No. 104 at 2; see also ECF No. 79 ¶¶ 19, 21, 23, 27; ECF
No. 104 at 4–11.) Plaintiff contends the issue of whether Plaintiff was constructively discharged
is not ripe for summary judgment and must be decided by a jury. (ECF No. 104 at 3–4.) Plaintiff
argues he has established a prima facie case of racial discrimination. (Id. at 4–8.) Further, Plaintiff

14

Plaintiff does not dispute his voluntary resignation. (ECF No. 99-1 ¶ 53 (citing Claude Thomas
Dep. 141:10–142:13).) In their reply brief, Defendants further assert the intoxicating argument that
Plaintiff’s voluntary resignation precludes a finding of an adverse employment action. (ECF No.
107 at 5 (citing Pa. State Pol. v. Suders, 542 U.S. 129, 141–42 (2004); Schofield v. Metro. Life
Ins. Co., Civ. A. No. 03-0357, 2006 WL 2660704, at *8 (M.D. Pa. Sept. 15, 2006).) The cases that
Defendants cite to are not completely analogous to this matter as neither involve similar factual
circumstances where the employee was offered a position with a much lower salary. See Pa. State
Pol., 542 U.S. at 135–36; Schofield, 2006 WL 2660704, at *1–4. Given the Third Circuit’s holding
in Durham Life Ins., the Court notes an argument certainly could have been made by Plaintiff that
he suffered an adverse employment action when YourLifeRx and Millers of Wyckoff made an
employment offer to Plaintiff which initially represented a $30,000.00 salary decrease resulting in
“direct economic harm” to him. 166 F.3d at 153. However, Plaintiff did not raise this argument.
(See generally ECF No. 104.) Accordingly, the Court will address Plaintiff’s assertions that he
suffered an adverse employment in the form of constructive discharge. (ECF No. 79 ¶¶ 17, 19, 21,
23, 27; ECF No. 104 at 2, 4–11.)
21

submits he has provided sufficient evidence to support his claims of constructive discharge. (Id. at
8–9.)
In reply, Defendants assert Plaintiff fails to cite to any factual support for his allegations.
(ECF No. 107 at 1.) Defendants note Plaintiff, in opposition to their motion for summary judgment,
make “references to a conclusory, self-serving certification that merely echoes his Second
Amended Complaint.” (Id.) Defendants argue Plaintiff’s conclusory, self-serving statements
cannot defeat their motion for summary judgment. (Id. at 3–4.) Defendants reiterate Plaintiff
cannot establish a prima facie case of discrimination. (Id. at 4–9.)
Under the McDonnell Douglas framework, the Court first looks to whether Plaintiff has
established a prima facie case. Here, it is undisputed Plaintiff satisfies the first two factors for
establishing a prima facie case of race discrimination because: Plaintiff identifies his race as
African American (ECF No. 104-2 ¶ 1); and Plaintiff was qualified for his employment as he was
a skilled salesman (ECF No. 99-1 ¶¶ 28, 37, 46–47.) In the First Count of the Second Amended
Complaint, Plaintiff asserts he was constructively discharged by YourLifeRx and Millers of
Wyckoff in violation of Title VII. (ECF No. 79 ¶¶ 19–20.) Accordingly, the Court turns its
attention to Plaintiff’s argument he suffered an adverse employment action because he was
constructively discharged and whether the constructive discharge “occurred under circumstances
that give rise to an inference of unlawful discrimination.” Rhoden, 749 F. App’x at 88.
“A constructive discharge constitutes an ‘adverse employment action’ for purposes of Title
VII.” Lombard v. N.J. Dep’t of Transp., Civ. A. No. 18-01319, 2018 WL 5617553, at *7 (D.N.J.
Oct. 30, 2018) (internal citation omitted). “The constructive-discharge doctrine contemplates a
situation in which an employer discriminates against an employee to the point such that his
working conditions become so intolerable that a reasonable person in the employee’s position

22

would have felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016) (internal
citation and quotations omitted). Title VII treats a resignation under these circumstances “as
tantamount to an actual discharge.” Id. “Intolerability . . . is assessed by the objective standard of
whether a ‘reasonable person’ in the employee’s position would have felt compelled to resign—
that is, whether he would have had no choice but to resign.” Tanganelli v. Talbots, Inc., 169 F.
App’x 124, 127 (3d Cir. 2006) (citing Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir.
1998)).
Here, the Court finds Plaintiff’s allegations are insufficient to satisfy the third and fourth
factors. The basis of Plaintiff’s employment discrimination claims are Plaintiff’s allegations of Mr.
Keough’s actions and statements. (ECF No. 79 ¶¶ 8–14; ECF No. 104-2 ¶¶ 4–6, 8 (citing ECF No.
104-1 ¶¶ 4–9).) As noted above, supra I.A.n.5, Plaintiff copied large portions of the allegations
from his Second Amended Complaint and used them in his Certification in Opposition to
Defendants’ Motion for Summary Judgment. (See ECF No. 79 ¶¶ 8–16; ECF No. 104-1 ¶¶ 4–9,
12–14.) The Court finds Plaintiff’s allegations are not sufficient evidence to establish constructive
discharge. See Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012)
(“[C]onclusory, self-serving affidavits are insufficient to withstand a motion for summary
judgment.”); Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 251–55 (3d Cir. 2007) (holding
plaintiff’s self-serving assertions were insufficient to create question of material fact to defeat
summary judgment).
Even if these allegations were adequately supported, the Court finds Defendants are
entitled to summary judgment. A reasonable factfinder could not find Plaintiff’s working
conditions were so “intolerabl[e]” such that Plaintiff “had no choice but to resign,” Tanganelli,
169 F. App’x at 127, because Plaintiff voluntarily resigned (Claude Thomas Dep. 141:10–142:13).

23

Indeed, Plaintiff initially did not mention discrimination was part of the reason he refused to take
the offered position. (Id. 140:21–24.) Further, the Court notes Plaintiff presented a counterproposal
to Mr. Keough consisting of a higher salary and commission as well as no non-compete agreement.
(Id. 130:11–131:23.) Therefore, if Plaintiff was potentially willing to remain employed for the
right compensation, the Court finds Plaintiff’s conditions were not sufficiently intolerable to result
in constructive discharge.
Based on the foregoing, the Court also finds Plaintiff has failed to present “circumstantial
evidence that otherwise shows a causal nexus between his membership in a protected class and the
adverse employment action.” Greene, 557 F. App’x at 195. The allegations cited by Plaintiff in
support of his claims are insufficient to raise a genuine issue of material fact because Plaintiff has
not shown his race influenced YourLifeRx and Millers of Wyckoff’s decision to offer him another
position. Jasmin v. N.J. Econ. Development Auth., Civ. A. No. 16-1002, 2020 WL 3411171, at *8
(D.N.J. June 22, 2020) (providing that where there is no evidence of factual circumstances
surrounding the termination, or of the role race played in them, plaintiff's Title VII claim would
fail); Sagun v. Delta Air Lines, Inc., Civ. A. No. 168881, 2019 WL 1961330, at *4 (D.N.J. May 2,
2019) (holding that where there was no evidence to suggest plaintiff’s race had any bearing on the
alleged unfair distribution of work, plaintiff’s claim would not survive the motion for summary
judgment).
Even assuming, arguendo, Plaintiff’s allegations substantiated and established a prima
facie case of discrimination, the Court finds YourLifeRx and Millers of Wyckoff have articulated
a legitimate, nondiscriminatory reason for their actions in restructuring and offering Plaintiff the
position of Director of Sales and Marketing. Defendants assert there was a legitimate, nonretaliatory reason for their decision to offer Plaintiff the position of Director of Sales and

24

Marketing and the accompanying salary decrease. (ECF No. 99-2 at 10–13.) YourLifeRx and
Millers of Wyckoff have met this “relatively light burden,” Fuentes, 32 F.3d at 763, by articulating
the following: Mr. Miller e-mailed Mr. Halpern and Mr. Keough regarding “dire” situations at the
store including a significant decline in prescription sales numbers which could be solved by
Plaintiff conducting “his most important role in marketing the company and specifically
compounding” because he was an effective salesman (ECF No. 99-1 ¶ 37 (citing Claude Thomas
Dep. 60:3–61:4, 97:16–98:2, 111:9–12; February 7, 2019 Correspondence)); YourLifeRx
“eliminat[ed] the [Front Manager] position to streamline [] operations” to address the “dire”
situations (ECF No. 99-1 ¶ 51 (citing May 2019 E-mail Chain; Claude Thomas Dep. 117:15–
119:10)); and Keough offered Plaintiff the position of Director of Sales and Marketing with “6.5%
commission on all new business tied directly to new doctors” that Plaintiff brought in with no cap
on the amount of the commission in order to “capitalize on [his] selling skill” (ECF No. 99-1 ¶¶
46–48 (citing Bennett Cert., Ex. 18, May 2019 E-mail Chain; Claude Thomas Dep. 117:15–
119:10)). Although not completely relevant to this analysis, the Court also notes co-workers
complained about Plaintiff’s in-store management on multiple occasions. (ECF No. 99-1 ¶¶ 22–
26 (citing Sept. 3, 2018 E-mail Chain; Claude Thomas Dep. 56:11–67:23); ECF No. 99-1 ¶ 40
(citing Mar. 28, 2019 E-Mail from Ms. Trahan; Claude Thomas Dep. 100:2–23).)
Continuing on with the McDonnell Douglas analysis, the Court finds Plaintiff has not set
forth persuasive arguments as to the alleged pretextual nature of Defendants’ reasoning for
restructuring and offering Plaintiff the position of Director of Sales and Marketing. Defendants
argue Plaintiff cannot establish pretext because their decision to restructure the business was
legitimate and non-discriminatory. (ECF No. 99-2 at 11–13.) In opposition, Plaintiff asserts the
issue of whether Defendants’ reasons for the “demotion” were pretextual should be decided by a

25

jury. (ECF No. 104 at 4.) Plaintiff contends Defendants’ motive for offering Plaintiff a position
with a lower salary was pretextual because the offer “followed his objections to racist remarks,
ageist remarks and his whistleblowing by, at the most, some five (5) months and the other extreme,
less than one month.” 15 (Id. at 9.) Additionally, Plaintiff argues Defendants “cannot empirically
substantiate their claim of business necessity.” (Id. at 10.) In reply, Defendants reiterate Plaintiff
cannot prove pretext because Plaintiff has failed to rebut Defendants’ legitimate non-pretextual
reasons for its business decision. (ECF No. 107 at 8–9.)
“Pretext is not shown by evidence 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.” Kautz v. Met-Pro Corp., 412 F.3d
463, 467 (3d Cir. 2005) (internal citation and quotations omitted). “The question is not whether
the employer made the best or even a sound business decision; it is whether the real reason is
discrimination.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (internal
citation and quotations omitted).
As held above, Plaintiff’s allegations of racist remarks are insufficient circumstantial
evidence to defeat a motion for summary judgment. See Gonzalez, 678 F.3d at 263; Jiminez, 503
F.3d at 251–55. Even if racist remarks were made, Plaintiff has not demonstrated that
discrimination was the reason he was “demoted,” therefore Plaintiff has failed to satisfy his burden
of establishing pretext. See Keller, 130 F.3d at 1109.
Further, it is somewhat perplexing for Plaintiff to contend the restructuring and
streamlining of YourLifeRx was pretextual when Plaintiff submitted an agenda plan that would

15

The Court does not find Plaintiff’s temporal proximity arguments persuasive. See Flear v.
Glacier Garlock Bearings, 159 F. App’x 390, 393 (3d Cir. 2005) (finding no sufficient temporal
connection between complaints and subsequent termination two months later).
26

have saved $300,000.00 in operation costs by reducing employee hours and salaries, among other
proposals. (ECF No. 99-1 ¶¶ 31–32 (citing Bennett Cert., Ex. 11, December 29, 2018
Correspondence and Agenda Plan; Claude Thomas Dep. 80:5–82:25).) Therefore, the Court does
not “(1) disbelieve [Defendants’] articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause of
[Defendants’] action.’” Jackson, 431 F. App’x at 165.
Accordingly, the Court finds summary judgment in favor of YourLifeRx and Millers of
Wyckoff is warranted as to Plaintiff’s Title VII Claim (First Count).
2.

Summary Judgment in Favor of Defendants Is Warranted as to
Plaintiff’s NJLAD Claim (Second Count)

In the Second Count of the Second Amended Complaint, Plaintiff alleges Defendants
violated the NJLAD. (ECF No. 79 ¶¶ 21–22.) Plaintiff alleges, in pertinent part:
Plaintiff was constructively discharged by Defendants Halpern and
Keough, who were aiding and abetting each other as well as
Defendants Millers of Wyckoff and/or YourLifeRx because of his
race and/or age. Defendant Miller also aided and abetted Defendant
Keough in creating a working environment that was hostile to
Plaintiff because of his race and age.
(Id. ¶ 21.)
Defendants contend “courts apply a similar analysis to discrimination claims brought
pursuant to Title VII, the ADEA, and the [NJ]LAD.” (ECF No. 99-2 at 5). In opposition, Plaintiff
submits he has a presented a prima facie case of a hostile work environment. (ECF No. 104 at 11.)
In reply, Defendants assert they are entitled to summary judgment because Plaintiff’s hostile work
environment claim fails since their alleged conduct was not sufficiently severe or pervasive. (ECF
No. 107 at 14–19.)

27

The NJLAD makes it unlawful for an employer “to discriminate against [an employee] in
compensation or in terms, conditions or privileges of employment.” N.J. Stat. Ann. § 10:5-12(a).
On the merits, “courts employ the same framework and standard of review when analyzing claims
under Title VII and NJLAD.” Behrens v. Rutgers Univ., Civ. A. No. 94-358, 1996 WL 570989,
at *4 (D.N.J. Mar. 29, 1996) (citations omitted); see also Abramson v. William Paterson Coll., 260
F.3d 265, 282 n.13 (3d Cir. 2001) (“Under the NJLAD and Title VII, the analysis is essentially the
same.”); Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 842 (3d Cir. 2016) (The Third Circuit’s
“discrimination inquiry is the same for claims filed under Title VII and the NJLAD as the New
Jersey statute borrows the federal standard set forth in McDonnell Douglas.”) (citing Armstrong
v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 249 (3d Cir. 2006)).
Accordingly, the Court will adopt the McDonnell Douglas burden-shifting framework
from Section III.A.1, supra, for the Title VII claim in analyzing Plaintiff’s NJLAD claim. As
discussed, summary judgment on Plaintiff’s Title VII claim (First Count) is warranted, and
therefore the same conclusion applies to Plaintiff’s NJLAD claim (Second Count) asserted against
all Defendants.
However, as Plaintiff did not raise a claim of hostile work environment 16 in his Title VII
claim (First Count), but did raise the claim in the NJLAD claim (Second Count) (ECF No. 79 ¶
21), the Court will also address this argument. A prima facie showing of a hostile work

16

The Court notes “[t]here are subtle but discernible differences between the standard for a hostile
work environment and the standard for constructive discharge.” Shepherd v. Hunterdon
Developmental Ctr., 803 A.2d 611, 627 (N.J. 2002). “[A] constructive discharge claim requires
more egregious conduct than that sufficient for a hostile work environment claim.” Id. at 628
(internal citation omitted). “[This] standard envisions a sense of outrageous, coercive and
unconscionable requirements,” id. (internal citation and quotations omitted), whereas “[t]he hostile
work environment claim requires severe or pervasive conduct that objectively alters the conditions
of employment and is hostile or abusive,” id. at 627–28.
28

environment requires “discriminatory intimidation, ridicule, and insult, that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.” Nat’l R.R. Passenger Corp., 536 U.S. at116 (internal citation and quotations
omitted). “To determine whether an environment is hostile, a court must consider the totality of
the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.’” Mandel v. M & Q Packaging Corp., 706 F.3d
157, 168 (3d Cir. 2013) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
“[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms and conditions of employment.” Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation and quotations omitted).
Therefore, “[t]he mere utterance of an epithet, joke, or inappropriate taunt that may cause offense
does not sufficiently affect the conditions of employment to implicate . . . liability.” Weston v.
Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001).
The Court finds Plaintiff’s assertions related to the alleged hostile work environment (see
ECF No. 79 ¶¶ 8–16; ECF No. 104-1 ¶¶ 4–9, 12–14) “are insufficient to withstand a motion for
summary judgment.” Gonzalez, 678 F.3d at 263. Even if Plaintiff’s allegations were accepted as
true, the Court finds these assertions are not “sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working environment,” Nat’l R.R. Passenger
Corp., 536 U.S. at 116, for the same reasoning as discussed in relation to Plaintiff’s claim of
constructive discharge, supra, III.A.1. A factfinder could not reasonably conclude that Plaintiff’s
work environment “permeated with discriminatory intimidation, ridicule, and insult.” Id.
Additionally, Plaintiff alleges Mr. Miller, Mr. Halpern, and Mr. Keough are individually

29

liable under an aiding-and-abetting theory. (See ECF No. 79 ¶ 21.) Defendants assert Plaintiff’s
claim for individual liability as to Mr. Miller, Mr. Halpern, and Mr. Keough fails. (ECF No. 99-2
at 17–22.) Plaintiff does not address these arguments in his opposition. (See generally ECF No.
104.) Therefore, Defendants are entitled to judgment as a matter of law as Plaintiff abandoned
these claims since he failed to substantively respond to Defendants’ arguments. See McCarthy v.
Int’l Ass’n of Machinists & Aero. Workers, 2021 WL 5766569, at *2 n.3 (3d Cir. Dec. 6, 2021)
(“Plaintiffs abandoned their claims . . . by omitting any reference to them in their opposition to
Defendant’s motion for summary judgment.”); see also Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 599 (11th Cir. 1995) (“Grounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.”); Carroll v. Lancaster Cnty., 301 F. Supp. 3d 486,
511–12 (E.D. Pa. 2018) (same).
Assuming Plaintiff had addressed his claims of individual liability under an aiding-andabetting theory, the Court notes the NJLAD makes it unlawful “[f]or any person, whether an
employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under [the NJLAD], or to attempt to do so.” N.J. Stat. Ann. § 10:5-12(e). Liability for
aiding and abetting under the NJLAD has no counterpart in Title VII. See Cortes v. Univ. of Med.
& Dentistry, 391 F. Supp. 2d 298, 314 (D.N.J. 2005) (“While the Third Circuit has clearly
foreclosed any possibility of individual liability under Title VII, the NJLAD does contain a
separate provision which expressly contemplates individual liability for those who ‘aid or abet’ an
employer's unlawful employment actions.” (citing Hurley v. Atl. City Police Dep’t, 174 F.3d 95,
126 (3d Cir. 1999))). Therefore, Plaintiff’s NJLAD aiding and abetting claims must be analyzed
separately from Title VII’s legal framework.
“The NJLAD does not provide for individual liability for aiding and abetting if the

30

employer is not found liable.” Tourtellotte, 636 F. App’x at 856 (citing Cicchetti v. Morris Cty.
Sheriff’s Off., 947 A.2d 626, 645 (N.J. 2008)); see also Jackson v. Del. River & Bay Auth., Civ. A.
No. 99-3185, 2001 WL 1689880, at *22 (D.N.J. Nov. 26, 2001) (“If the NJLAD does not apply to
the employer [ ], then no individual aiding and abetting liability may be found.”). Here, Plaintiff
has a NJLAD claim against YourLifeRx and Millers of Wyckoff that has not survived Defendants’
Motions for Summary Judgment for the reasons stated above. Therefore, Plaintiff is not allowed
to pursue a NJLAD aiding and abetting claim against their employees.
Accordingly, the Court finds summary judgment in favor Defendants is warranted as to
Plaintiff’s NJLAD Claim (Second Count).
3.

Summary Judgment in Favor of YourLifeRx and Millers of Wyckoff Is
Warranted as to Plaintiff’s ADEA Claim (Third Count)

In the Third Count of the Second Amended Complaint, Plaintiff alleges he was
constructively discharged by YourLifeRx and Millers of Wyckoff because of his age in violation
of the ADEA. (ECF No. 79 ¶ 23–24.) The parties do not devote substantial briefing to this claim.
(See generally ECF Nos. 99-2, 104, 107.)
The ADEA makes it unlawful for an employer to “fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). It is also unlawful for the employer to “limit, segregate, or classify” employees in a way
that would “deprive or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual’s age.” Id. §
623(a)(2); O’Malley v. Fairleigh Dickinson Univ., Civ. A. No. 10-6193, 2014 WL 67280, at *8
(D.N.J. Jan. 7, 2014).
A claim for discrimination under the ADEA is evaluated by a three-step test. See Smith v.
31

City of Allentown, 589 F.3d 684, 689–91 (3d Cir. 2009). This test, developed in the Title VII
context in McDonnell Douglas, requires the plaintiff to first demonstrate a prima facie case of
discrimination. Smith, 589 F.3d at 689; see McDonnell Douglas, 411 U.S. 792. If shown, “the
burden of production shifts to the employer to identify a legitimate non-discriminatory reason for
the adverse employment action.” Smith, 589 F.3d at 690 (3d Cir. 2009). “If the employer does so,
the burden of production returns to the plaintiff to demonstrate that the employer's proffered
rationale was a pretext for age discrimination.” Id. The plaintiff always bears the burden of
persuasion. Id. Further, part of the plaintiff’s burden of persuasion involves proving “that age was
the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs., 557 U.S. 167,
176–77 (2009).
Accordingly, the Court will adopt the McDonnell Douglas burden-shifting framework
from Section III.A.1, supra, for the Title VII claim in analyzing Plaintiff’s ADEA claim. As
discussed, summary judgment on Plaintiff’s Title VII claim (First Count) in favor of Defendants
is warranted therefore the same conclusion applies to Plaintiff’s ADEA claim (Third Count)
asserted against YourLifeRx and Millers of Wyckoff. Defendants’ motion on Plaintiff’s Count
Three is granted.
4.

Summary Judgment in Favor of Defendants Is Warranted as to
Plaintiff’s CEPA Claim (Fourth Count)

In the Fourth Count of the Second Amended Complaint, Plaintiff alleges Defendants
violated the CEPA when they constructively discharged him after he objected to illegal kickbacks.
(ECF No. 79 ¶¶ 25–28.)
Defendants argue Plaintiff’s CEPA claim fails because Plaintiff cannot establish “he
complained about or objected to anything that he reasonably believed violated any law, rule,
regulation or clear mandate of public policy.” (ECF No. 99-2 at 14.) Defendants submit Mr.
32

Qureshi’s alleged kickbacks were the only issue Plaintiff raised during his employment. (Id. at 15.)
Further, Defendants contend the record evidence does not support the assertion that Plaintiff had
a reasonable belief the sales representative relationship with Mr. Qureshi consisted of improper
kickbacks because Plaintiff and Ms. Ramasamy were responsible for establishing this sales
representative relationship consisting of 15% of the sales that he brings and reporting his sales
commissions on an IRS Form 1099. (Id.) Defendants assert the circumstances leading to Plaintiff’s
“voluntary resignation” in May 2019 refute the contention that Plaintiff’s resignation was
influenced by Defendants’ actions. (Id. at 15–16.)
In opposition, Plaintiff asserts summary judgment is not appropriate because a reasonable
jury could find Plaintiff’s “demotion” was retaliation for complaints about the kickback scheme.
(ECF No. 104 at 4.) Additionally, Plaintiff argues he has established a prima facie case of CEPA
retaliation. (Id. at 11–13.) Plaintiff contends there was a causal connection because there was
temporal proximity between his complaints and the adverse employment action. (Id. at 12–13.)
In reply, Defendants reiterate Plaintiff’s CEPA claim fails because the record evidence
does not support the contention that Plaintiff had a reasonable belief the sales representative
relationship with Mr. Qureshi was illegal. (ECF No. 107 at 11.) Defendants submit the
circumstances leading up to Plaintiff’s voluntary resignation rebut Plaintiff’s CEPA claim. (Id. at
11–12.)
The CEPA was enacted “to protect and encourage employees to report illegal or unethical
workplace activities and to discourage public and private sector employees from engaging” in such
activity. Abbamont v. Piscataway Twp. Bd. of Educ., 650 A.2d 958, 971 (N.J. 1994). To succeed
on a CEPA claim, a plaintiff must prove four elements: (1) that the plaintiff reasonably believed
the employer’s conduct violated a law or regulation; (2) that the plaintiff performed “whistle-

33

blowing activity” as defined in the CEPA; (3) that an adverse employment action has been taken
against him; and (4) that the whistle-blowing activity caused such adverse employment action. See
Kolb v. Burns, 727 A.2d 525, 530 (N.J. Super. Ct. App. Div. 1999); Dzwonar v. McDevitt, 828
A.2d 893, 900 (N.J. 2003). The CEPA covers employee complaints about activities the employee
reasonably believes are: (i) in violation of a specific statute or regulation; (ii) fraudulent or
criminal; or (iii) incompatible with policies concerning public health, safety or welfare or the
protection of the environment. See Est. of Roach v. TRW, Inc., 754 A.2d 544, 550 (N.J. 2000).
However, “CEPA does not require that the activity complained of . . . be an actual violation of a
law or regulation, only that the employee ‘reasonably believes’ that to be the case.” Id. at 552.
To establish the element of causation, a plaintiff must demonstrate that “a causal
connection exists between the whistle-blowing activity and the adverse employment action.”
Dzwonar, 828 A.2d at 900. A plaintiff must show that the “retaliatory discrimination was more
likely than not a determinative factor in the decision.” Donofry v. Autotote Sys., Inc., 795 A.2d
260, 271 (N.J. Super. Ct. App. Div. 2001) (citations omitted). Once a plaintiff has established a
prima facie case under the CEPA, courts employ the burden-shifting analysis that is used in federal
discrimination cases involving “pretext” claims. Blackburn v. United Parcel Servs., Inc., 179 F.3d
81, 92 (3d Cir. 1999).
In the Second Amended Complaint, Plaintiff alleges Mr. Miller: would “recycle” the drugs
customers placed in a drop box; returned medications which were not picked up by customers back
to inventory without reversing insurance billing; asked Plaintiff to falsify refrigerator temperature
logs; had non-pharmacy staff involved in filling prescriptions; would provide customers with
additional pills before they were due for a refill; and engaged in “kickbacks” with a doctor’s office.
(ECF No. 79 ¶¶ 15–16; ECF No. 104-2 ¶¶ 12–14 (citing ECF No. 104-1 ¶¶ 12–14).) In his

34

opposition, Plaintiff relies solely on the kickback allegation to establish his CEPA claim.
Therefore, the Court finds Plaintiff’s other allegations and claims are abandoned. See Carroll, 301
F. Supp. 3d at 511–12 (finding a claim abandoned when not addressed in brief in opposition to
summary judgment).
Even though the Court is not necessarily persuaded by Defendants’ arguments on this
claim 17 and there is evidence of Plaintiff reporting the issue of alleged kickbacks to Mr. Keough,
Mr. Miller, and Mr. Halpern (ECF No. 99-1 ¶ 41 (citing Apr. 2019 E-Mail Chain)), the Court will
again adopt the McDonnell Douglas burden-shifting framework from Section III.A.1, supra, for
the Title VII claim in analyzing Plaintiff’s CEPA claim. Defendants have satisfied their burden of
articulating a legitimate reason for the alleged adverse employment action, see supra, III.A.1,
whereas Plaintiff has not satisfied his burden of establishing that Defendants’ “real reason” for the
alleged retaliation, in the form of the alleged constructive discharge, was Plaintiff’s objection to
the alleged kickback scheme. See Keller, 130 F.3d at 1109. Therefore, summary judgment in
Defendants’ favor is warranted on Plaintiff’s CEPA claim (Fourth Count).

17

The Court does not agree with Defendants’ assertion that Plaintiff was responsible for
establishing the sales representative relationship with Mr. Qureshi therefore Plaintiff could not
have a reasonable belief that the sales representative arrangement was illegal. (ECF No. 99-2 at
15; ECF No. 1-7 at 11.) Based on a detailed review of the e-mails provided, the Court notes
Plaintiff did not send any of the subject e-mails stating Mr. Qureshi would receive “15% of the
sales that he brings,” and report his sales commissions on an IRS Form 1099, rather Ms. Ramasamy
sent the e-mails and Plaintiff was merely included on the e-mail chain. (Bennett Cert., Ex. 17, 2014
and 2015 e-mails re: Zahid Qureshi.) It is a stretch to conclusively say Plaintiff established the
agreement with Mr. Qureshi therefore he could not have a reasonable belief that the arrangement
was illegal.
35

B.

Plaintiff’s Cross-Motion for Summary Judgment 18
1.

Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim
for NJLAD Claims Brought in Bad Faith (First Counterclaim) Is
Not Warranted

Plaintiff submits Defendants’ First Counterclaim is premature because there has not been
an adjudication of Plaintiff’s NJLAD claim. (ECF No. 102-4 at 2.) Specifically, Plaintiff asserts
the Court has not decided whether Plaintiff’s NJLAD claim lacked merit or was commenced for
an illegitimate purpose. (Id.)
In opposition, Defendants assert Plaintiff’s allegations are insufficient to preclude a finding
of bad faith because Plaintiff has not presented evidence to support his NJLAD claim. (ECF No.
107 at 20.) Defendants submit there is a question of fact as to whether Plaintiff’s NJLAD claim

18

As Defendants note (ECF No. 107 at 19 n.7), Plaintiff’s Cross-Motion does not seek summary
judgment on either Defendants’ fifth counterclaim for Conversion of Property or the sixth
counterclaim for Breach of Confidentiality Agreements in his moving papers (see generally ECF
Nos. 102-4, 108). Therefore, the Court does not address Defendants’ claims for Conversion of
Property (Fifth Counterclaim) and Breach of Confidentiality Agreements (Sixth Counterclaim).
These Counterclaims remain active and pending. (ECF No. 82 (Countercls. ¶¶ 15–31).) It is clear
to the Court that Plaintiff, in preparing his briefing, considered the YourLifeRx Defendant’s
Answer and Counterclaims to the Amended Complaint filed on February 16, 2021 (ECF No. 25)
but not Defendants’ Answer and Counterclaims to the Second Amended Complaint filed on
January 12, 2022 (ECF No. 82). There are multiple inconsistencies with Plaintiff’s arguments
raised in his briefing and Defendants’ Answer to the Second Amended Complaint. (See generally
ECF Nos. 82, 102-4, 108). At the risk of being superfluous, the Court will list these inconsistencies
throughout the Opinion. For instance, the Court presumes Plaintiff did not address Defendants’
claims for Conversion of Property (Fifth Counterclaim) and Breach of Confidentiality Agreements
(Sixth Counterclaim) contained in the Answer to the Second Amended Complaint (ECF No. 82
(Countercls. ¶¶ 15–31)), because YourLifeRx Defendants’ Answer to the Amended Complaint did
not raise claims for Conversion of Property and/or Breach of Confidentiality Agreements (see
generally ECF No. 25). Further, Plaintiff entitles “Point V” of his moving brief as “THERE IS NO
FIFTH COUNT PLEADED.” (ECF No. 102-4 at 5.) The YourLifeRx Defendants’ Answer to the
Amended Complaint did not contain a Fifth Counterclaim and skipped from the Fourth
Counterclaim, a claim for Malicious Prosecution (ECF No. 25 (Countercls. ¶¶ 11–27)), to the Sixth
Counterclaim, a claim for Trespass to Property (id. 28–30). Whereas Defendants’ Answer to the
Second Amended Complaint filed on January 12, 2022, did, in fact, raise a Fifth Counterclaim for
Conversion of Property. (ECF No. 82 (Countercls. ¶¶ 15–27).)
36

was brought in bad faith because Plaintiff was willing to continue his employment with
YourLifeRx as long as his salary did not decrease, and he was not required to sign a non-compete
agreement. (Id. at 22.) In the alternative, Defendants request, if the Court were to grant summary
judgment on the First and Fourth Counterclaims on the basis of them being untimely, then
Defendants should be allowed to reinstate these causes of action if Defendants are deemed the
prevailing party. (Id. at 20 n.8.)
In reply, Plaintiff reiterates Defendants’ First Counterclaim is premature. (ECF No. 108 at
1.) Plaintiff contends N.J. Stat. Ann. § 10:5-27.1 allows the award of counsel fees to a prevailing
Defendant in a NJLAD action, but only if the court determines the action was brought in “bad
faith.” (Id.)
As part of their Answer to the Second Amended Complaint, Defendants raise a
counterclaim for attorneys’ fees under a theory of NJLAD Claims Brought in Bad Faith. (ECF No.
82 (Countercls. ¶¶ 1–2).) Under the NJLAD, “the prevailing party may be awarded a reasonable
attorney’s fees as part of the cost, provided however, that no attorney’s fees shall be awarded
unless there is a determination that the charge was brought in bad faith.” N.J. Stat. Ann. § 10:527.1. Black’s Law Dictionary defines bad faith as “[d]ishonesty of belief, purpose, or motive.”
Black’s Law Dictionary (11th ed. 2019).
The NJLAD does not expressly define bad faith and the Supreme Court of New Jersey has
not “addressed the meaning of ‘bad faith’ for purposes of N.J. Stat. Ann. 10:5-27.1.” Michael v.
Robert Wood Johnson Univ. Hosp., 940 A.2d 310, 313 (N.J. Super. Ct. App. Div. 2008). In a
different context, the Supreme Court of New Jersey held “bad faith denotes a reckless disregard of
purposeful obliviousness of the known facts.” N.J. Title Ins. v. Caputo, 748 A.2d 507, 514 (N.J.
2000). “The award of attorneys’ fees to a prevailing defendant is not routine and should only be

37

sparingly awarded.” Hurley v. Atl. City Police Dept., 933 F. Supp. 396, 427 (D.N.J. 1996) (citing
Quiroga v. Hasbro, Inc., 934 F.2d 497 (3d Cir. 1991)). A trial court’s granting of summary
judgment in favor of a defendant on a plaintiff’s NJLAD claim does not necessarily entitle the
defendant to attorney’s fees. See Mandel v. UBS/PaineWebber, Inc., 860 A.2d 945, 961–962 (N.J.
Super. Ct. App. Div. 2004).
As discussed, supra III.A.2, the Court has held summary judgment in favor of Defendants
is warranted as to Plaintiff’s employment discrimination claim under the NJLAD. In opposition to
Defendants’ motion for summary judgment, Plaintiff did not provide further evidence of his
allegations and instead relied almost entirely on allegations from his Second Amended Complaint.
(See ECF No. 79 ¶¶ 8–16; ECF No. 104-1 ¶¶ 4–9, 12–14.) Further, Plaintiff’s NJLAD claim was
contradicted, at the outset, by his voluntary resignation, and apparent willingness to continue
employment with YourLifeRx and Millers of Wyckoff as long as he was given appropriate
compensation. (ECF No. 99-1 ¶¶ 49, 53)
Although it is not clear whether Defendants have satisfied their burden of establishing bad
faith, 19 the Court finds the foregoing creates a genuine dispute as to whether Plaintiff brought his
NJLAD claims in bad faith. Accordingly, the portion of Plaintiff’s Cross-Motion seeking summary
judgment on Defendants’ First Counterclaim is denied.

19

The Court notes Defendants, in the Counterstatement of Material Facts in Opposition to
Plaintiff’s Cross-Motion for Summary Judgment, raise the unsupported allegation that “Plaintiff,
after recognizing that litigation was imminent due to his misappropriation and breach of his
agreement and confidentiality obligations to Defendant[s], filed his Complaint.” (ECF No. 107-5
¶ 42.)
38

2.

Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim
for Frivolous Complaint (Second Counterclaim) Is Not Warranted 20

Plaintiff contends Defendants failed to show Plaintiff was acting in bad faith in filing this
lawsuit because even if his allegations are insufficient to prevail, that does not entitle Defendants
to damages under a frivolous complaint theory. (ECF No. 102-4 at 3–5.) In opposition, Defendants
argue there is support in the record for Defendants’ Frivolous Complaint counterclaim because
Plaintiff admitted he did not initially state discrimination, retaliation, or a hostile work
environment as one of the reasons for his voluntary resignation. (ECF No. 107 at 23.) In reply,
Plaintiff argues an employee is not required to give his or her employer any reason as to why he
or she feels resignation is the only viable option. (ECF No. 108 at 1.)
Defendants also raise a counterclaim alleging Plaintiff filed a frivolous complaint therefore
Defendants are entitled to attorneys’ fees pursuant to N.J. Stat. Ann. § 2A:15-59.1. (ECF No. 82
(Countercls. ¶¶ 3–6).) N.J. Stat. Ann. § 2A15-59.1 provides “[a] party who prevails in a civil action
. . . may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds
at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim
or defense of the nonprevailing person was frivolous.” N.J. Stat. Ann. § 2A15-59.1. A claim is
frivolous, if the Court finds: “(1) [t]he complaint, counterclaim, cross-claim or defense was
commenced, used or continued in bad faith, solely for the purpose of harassment, delay or
malicious injury”; and/or “(2) [t]he nonprevailing party knew, or should have known, that the
complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity

20

This Court has previously granted reasonable attorney’s fees for the prevailing party in a Title
VII claim pursuant to 42 U.S.C. § 2000e-5(k). Prioli v. Cnty. of Ocean, Civ. A. No. 18-cv-00256,
2021 WL 4473159, at *24–26 (D.N.J. Sept. 30, 2021) (holding prevailing defendants were entitled
to reasonable attorney’s fees because the plaintiff’s claims against the individual defendants were
without arguable legal basis). Here, Defendants do not seek attorney’s fees pursuant to 42 U.S.C.
§ 2000e-5(k), but rather N.J. Stat. Ann. § 2A:15-59.1. The analysis is, however, nearly identical.
39

and could not be supported by a good faith argument for an extension, modification or reversal of
existing law.” N.J. Stat. Ann. § 2A15-59.1(b). Further, if a prevailing party’s claim of frivolity “is
based on the absence of ‘a reasonable basis in law or equity’ for the plaintiff’s claim and the
plaintiff is represented by an attorney, an award cannot be sustained if the ‘plaintiff did not act in
bad faith in asserting’ or pursuing the claim.” Ferolito v. Park Hill Ass’n, Inc., 975 A.2d 473, 478
(N.J. Super. Ct. App. Div. 2009) (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 626
A.2d 425, 426 (N.J. 1993)).
“The burden of proving that the non-prevailing party acted in bad faith is on the party who
seeks fees and costs pursuant to N.J. Stat. Ann. § 2 A:15-59.1.” Ferolito, 975 A.2d at 478 (internal
citations and quotations omitted). This “[s]tatute is interpreted restrictively,” Bove v. AkPharma
Inc., 213 A.3d 948, 964 (N.J. Super. Ct. App. Div. 2019) (internal citation omitted), because “the
right of access to the court should not be unduly infringed upon, honest and creative advocacy
should not be discouraged, and the salutary policy of the litigants bearing . . . their own litigation
costs, should not be abandoned.” Gooch v. Choice Ent. Corp., 809 A.2d 154, 156 (N.J. Super. Ct.
App. Div. 2002) (internal citation and quotations omitted).
Based on the reasoning provided above, supra III.B.1, the Court holds that although it is
not clear whether Defendants have satisfied their burden under N.J. Stat. Ann. § 2A:15-59.1, the
Court finds Defendants have created a genuine dispute as to whether “[t]he complaint . . . was
commenced, used or continued in bad faith.” N.J. Stat. Ann. § 2A15-59.1(b)(1). Therefore, the
portion of Plaintiff’s Cross-Motion seeking summary judgment on Defendants’ Second
Counterclaim is denied.

40

3.

Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim
for Malicious Abuse of Legal Process (Third Counterclaim) Is
Warranted

Plaintiff asserts summary judgment is warranted on Defendants’ third counterclaim for
malicious abuse of legal process because Defendants’ basis for this claim is solely Plaintiff’s
commencement of this action. (ECF No. 102-4 at 5.) In opposition, Defendants assert Plaintiff’s
initiation and conduct throughout this lawsuit has constituted a malicious abuse of process because
“Plaintiff initiated the civil action only after learning that Defendants intended to take legal action
against him for misappropriating their confidential, proprietary, and trade secret information and
breaching his agreement and confidentiality obligations to defendants.” (ECF No. 107 at 24.)
Further, Defendants contend “Plaintiff initiated this action, based on no evidence, with the hopes
that Defendants would not pursue any civil claims against him and in doing so, triggered the
inevitable ‘chain of events’ that results from the filing of a civil complaint; namely, the substantial
legal fees stemming therefrom.” (Id.) In reply, Plaintiff reiterates the commencement of this action
is Defendants’ sole basis for this counterclaim. (ECF No. 108 at 2.) Plaintiff further argues
Defendants have not alleged all of the elements of a malicious abuse of legal process claim. (Id.)
“The tort for malicious abuse of process lies not for commencing an improper action, but
for misusing or misapplying process after it is issued.” Hoffman v. Asseenontv.Com, Inc., 962 A.2d
532, 541 (N.J. Super. Ct. App. Div. 2009) (internal citation omitted). “Consequently, basic to the
tort of malicious abuse of process is the requirement that the defendant perform further acts after
issuance of process which represent the perversion or abuse of the legitimate purposes of that
process.” Baglini v. Lauletta, 768 A.2d 825, 832–33 (N.J. Super. Ct. App. Div. 2001 (internal
citation and quotations omitted).
Defendants’ allegations raised in the Third Counterclaim (ECF No. 82 (Countercls. ¶¶ 7–

41

10)) and arguments raised in opposition to Plaintiff’s Cross-Motion for Summary Judgment (ECF
No. 107 at 23–24) are predicated on Plaintiff’s actions in “initiating” this action. Accordingly, by
focusing on “not what prompted the suit but what action plaintiff engaged in after the
commencement of the action,” Hoffman, 962 A.2d at 541, the Court finds Defendants have failed
to properly allege and/or argue their claim for malicious abuse of legal process. Accordingly, the
portion of Plaintiff’s Cross-Motion seeking summary judgment as to the Third Counterclaim is
granted.
4.

The Court, Sua Sponte, Dismisses Defendants’ Counterclaim for
Malicious Prosecution (Fourth Counterclaim)

Plaintiff argues the Court should dismiss Defendants’ fourth counterclaim for malicious
prosecution because this counterclaim is mislabeled, does not allege a cause of action, and there is
no evidence of any alleged misappropriation. 21 (ECF No. 102-4 at 5.) Defendants do not address
Plaintiff’s arguments. (See generally ECF No. 107.) Instead, as noted above, supra III.B.1,
Defendants request that if the Court were to grant the portion of Plaintiff’s Cross-Motion seeking
summary judgment on their claim for Malicious Prosecution (Fourth Counterclaim) on the basis
of it being untimely, then Defendants should be allowed to reinstate this cause of action if
Defendants are deemed the prevailing party. (Id. at 20 n.8.)
Notwithstanding the parties’ arguments, the Court, sua sponte, finds Defendants’ Fourth
Counterclaim for Malicious Prosecution fails. “Malicious prosecution provides a remedy for harm

21

Point IV of Plaintiff’s moving brief is entitled “DEFENDANTS’ FOURTH COUNT IS
MISLABELED AND DOES NOT ALLEGE ANY CAUSE OF ACTION.” However, it was the
YourLifeRx Defendants’ Answer to the Amended Complaint which raised a mislabeled
counterclaim for Malicious Prosecution alleging misappropriation of proprietary and confidential
information. (ECF No. 25 (Countercls. ¶¶ 11–27).) Defendants’ claim for Malicious Prosecution
(Fourth Counterclaim) in their Answer to the Second Amended Complaint is not mislabeled. (ECF
No. 82 (Countercls. ¶¶ 11–14).)
42

caused by the institution or continuation of a criminal action that is baseless.” LoBiondo v.
Schwartz, 970 A.2d 1007, 1022 (N.J. 2009) (citing Earl v. Winne, 101 A.2d 535 (N.J. 1953)). This
is a civil matter therefore the Court finds dismissal of Defendants’ Fourth Counterclaim is
warranted. 22 Therefore, the Court denies, as moot, the portion of Plaintiff’s Cross-Motion seeking
summary judgment on Defendants’ Fourth Counterclaim.
5.

Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim
for Trespass to Property (Seventh Counterclaim) Is Warranted 23

Plaintiff asserts summary judgment on the Seventh Counterclaim is warranted because
Defendants have not identified any property that Plaintiff absconded or destroyed. (ECF No. 1024 at 6.) In opposition, Defendants argue there are genuine issues of material fact as to Defendants’
claim for Trespass to Property because the record evidence demonstrates Plaintiff obtained
Defendants’ confidential and proprietary information to compete directly against Defendants.

22

It is entirely possible Defendant mislabeled their claim for Malicious Prosecution, albeit for
different reasons than Plaintiff asserts. To the extent Plaintiff argues the claim was mislabeled, that
argument is moot in light of the Court’s sua sponte dismissal. The Court notes there is a third
related action to malicious prosecution and malicious abuse of process, referred to as “[m]alicious
use of process [which] is essentially the analog used when the offending action in question is civil
rather than criminal.” LoBiondo, 970 A.2d at 1022 (internal citations omitted). The Supreme Court
of New Jersey has recognized these three, distinct torts as “a group of closely related torts that,
although ancient in origins, are treated with great caution because of their capacity to chill resort
to our courts by persons who believe that they have a criminal complaint or civil complaint against
another.” Id. Applying this restraint, the Court finds, even if Defendants had properly alleged a
claim for malicious use of process instead of malicious prosecution, it is likely summary judgment
would have been warranted.
23

“Point VI” of Plaintiff’s moving brief is entitled “DEFENDANTS HAVE FAILED TO
PRODUCE ANY EVIDENCE TO SUPPORT THE SIXTH COUNT.” (ECF No. 102-4 at 6.)
Similarly, “Point VI” of Plaintiff’s reply brief is entitled “THE SIXTH COUNT MUST BE
DISMISSED.” (ECF No. 108 at 3.) In these portions of Plaintiff’s briefs, Plaintiff addresses
Defendants’ counterclaim for Trespass to Property which is actually Defendants’ Seventh
Counterclaim. (ECF No. 82 (Countercls. ¶¶ 32–34).) In an effort to continue listing
inconsistencies, the Court notes the YourLifeRx Defendants’ Sixth Counterclaim raised, in their
Answer to the Amended Complaint, was Trespass to Property. (ECF No. 25 (Countercls. ¶¶ 28–
30).)
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(ECF No. 107 at 24–25.) In reply, Plaintiff reiterates Defendants have failed to identify any
property that Plaintiff absconded or destroyed. (ECF No. 108 at 3.) Further, Plaintiff contends
Defendants merely raised speculative conjecture in opposition to this portion of his Cross-Motion.
(Id.)
In the Seventh Counterclaim, Defendants vaguely allege Trespass to Property. (ECF No.
82 (Countercls. ¶¶ 32–34).) Under New Jersey law, “a cognizable claim for trespass occurs ‘when
personal property, in the actual use of the owner, is injured or taken by a trespasser, so that the
owner is deprived of the use of it.’” Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 312 (D.N.J.
2009) (quoting Luse v. Jones, 39 N.J. 707, 709 (N.J. 1877)); see Barrett Fin. of N. Jersey, LLC v.
Creative Fin. Grp. of N.J., Civ. A. No. 13-5621, 2018 WL 3546196, at *8 n.9 (D.N.J. July 24,
2018) (“A trespass to chattel may be committed by ‘intentionally (a) dispossessing another of the
chattel, or (b) using or intermeddling with a chattel in the possession of another.’”
(quoting Exxonmobil Oil Corp. v. Wakile & Sons, Inc., Civ. A. No. 09-01265, 2009 WL 3818151,
at *3 (D.N.J. Nov. 13, 2009))). As Defendants do not assert they have been deprived of using the
confidential and proprietary information at issue, the Court finds basis to grant summary judgment
in favor of Plaintiff on Defendants’ Seventh Counterclaim. See Ferring Pharms. Inc., v. Watson
Pharms., Inc., Civ. A. No. 12-cv-05824, 2014 WL 12634303, at *6 (D.N.J. Aug. 4, 2014) (holding
dismissal of a claim for trespass to chattels, which alleged computer password evasion and
improper obtainment of a copy of a webcast seminar, was proper because pleading party had failed
to allege the deprivation element).
Further, Courts in this District have applied the Restatement (Second) of Torts, which
provides “like conversion, trespass to chattels requires tangible personal property over which one
can have physical control.” Barrett Fin., 2018 WL 3546196, at *11; see also iPurusa, LLC v. Bank

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of N.Y. Mellon Corp., Civ. A. No. 22-966, 2023 WL 3072686, at *10 (D.N.J. Apr. 25, 2023)
(quoting Barrett Fin., 2018 WL 3546196, at *11)). Here, Defendants’ Counterclaim for Trespass
to Property also fails because the alleged confidential and proprietary information at issue,
including price lists and customer lists, is not tangible property. 24 See Bellak v. Wells Fargo &
Co., Civ. A. No. 17-2757, 2017 WL 6496563, at *5 (D.N.J. Dec. 19, 2017) (citing Mu Sigma, Inc.
v. Affine, Inc., Civ. A. No. 12-1323, 2013 WL 3772724, at *11 (D.N.J. July 17, 2013) (“[C]lient
lists, pricing information and the like . . . are not considered tangible objects for the purposes of
conversion.”)); Barrett Fin., 2018 WL 3546196, at *11 (holding defendant was entitled to
summary judgment on plaintiff’s trespass to chattels claim because data files are intangible);
iPurusa, 2023 WL 3072686, at *10 (finding computer software is not tangible property in the
context of a trespass to chattels claim). Accordingly, the Court finds the portion of Plaintiff’s
Cross-Motion seeking summary judgment on Defendants’ Seventh Counterclaim for Trespass to
Property is granted.
6.

Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim
for Violation of the NJTSA (Eighth Counterclaim) Is Not Warranted

Plaintiff argues Defendants’ claim under the New Jersey Trade Secrets Act fails because
Defendants have not provided evidence of Plaintiff misappropriating trade secrets from Millers of
Wyckoff and/or YourLifeRx. (ECF No. 102-4 at 6.) In opposition, Defendants assert they have set
forth genuine issues of material fact as to their claim under the New Jersey Trade Secrets Act

24

The Court is not persuaded by Defendants’ reliance on Capanna v. Tribeca Lending Corp., Civ.
A. No. 06-5314, 2009 WL 900156, at *10 (D.N.J. Mar. 31, 2009). (ECF No. 107 at 24–25.) In
Capanna, the Court found summary judgment was appropriate on a defendant/counterclaimant
employer’s claim for “trespass” because the plaintiff/counterclaim-defendant’s removal of a loan
application file that she was assigned to overwrite violated a confidentiality agreement. 2009 WL
900156, at *10. Although the facts of Capanna are analogous, the Court notes no other Courts in
this District have cited to or adopted this particular holding.
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because the record demonstrates Plaintiff misappropriated YourLifeRx and Millers of Wyckoff’s
confidential, proprietary, and trade secret information. (ECF No. 107 at 25.) Defendants argue the
information Plaintiff took is entitled to protection as confidential and proprietary property even if
the Court were to find the information does not rise to the level of a trade secret. (Id. at 29.) In
reply, Plaintiff submits Defendants have failed to identify trade secrets or the transmission of any
information from Millers of Wyckoff and/or YourLifeRx to any other entity such as Medicos.
(ECF No. 108 at 4.) Plaintiff submits Defendants “speculate rampantly about Plaintiff passing
along Miller’s proprietary information, and their pleadings make frequent allusions to such
conduct, but they have been unable to point to a single instance.” (Id.)
The NJTSA prohibits the “[a]ctual or threatened misappropriation” of a “trade secret.” N.J.
Stat. Ann. § 56:15-3. A “trade secret” is defined as “information” that:
(1) Derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value
from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
N.J. Stat. Ann. § 56:15-2. “Misappropriation” of a trade secret includes:
(1) Acquisition of a trade secret of another by a person who knows
or has reason to know that the trade secret was acquired by improper
means; or
(2) Disclosure or use of a trade secret of another without express or
implied consent of the trade secret owner by a person who:
(a) used improper means to acquire knowledge of the trade secret;
or
(b) at the time of disclosure or use, knew or had reason to know that
the knowledge of the trade secret was derived or acquired through
improper means; or

46

(c) before a material change of position, knew or had reason to know
that it was a trade secret and that knowledge of it had been acquired
through improper means.
Id. The NJTSA also provides “[a] person who misappropriates a trade secret shall not use as a
defense to the misappropriation that proper means to acquire the trade secret existed at the time of
the misappropriation.” N.J. Stat. Ann. § 56:15-5.
In New Jersey, “customer lists . . . have been afforded protection as trade secrets.” Lamorte
Burns & Co., Inc. v. Walters, 770 A.2d 1158, 1166 (N.J. 2001) (internal citations omitted). “Where
there is either a post-employment restrictive covenant or where the customer lists are confidential
and thus a trade secret, customer lists may be protected even after employment is terminated.” AYR
Composition, Inc. v. Rosenberg, 619 A.2d 592, 597 (N.J. Super. Ct. App. Div. 1993) (citing United
Bd. & Carton Corp. v. Britting, 160 A.2d 660 (N.J. Super. Ct. App. Div. 1960), certif. denied,
164 A.2d 379 (1960)). “[T]he names and addresses of its customers ‘are not open to and
ascertainable by everyone; they are the private information and property of the company.” AYR
Composition, Inc., 619 A.2d at 597.
Here, the Court finds there is a genuine dispute as to whether Plaintiff’s actions violated
the NJTSA. The Court notes the following facts and circumstantial evidence: Plaintiff formulated
pricing policies and generated lists of potential doctors and physicians (ECF No. 99-1 ¶ 17 (citing
Claude Thomas Dep. 49:9–51:3)); Plaintiff sent Millers of Wyckoff’s doctor list to his personal email (ECF No. 107-5 ¶ 10 (citing Jan. 3, 2019 Correspondence)); Plaintiff received an e-mail from
Mr. Bucher with a link to YourLifeRx’s compounding price list (ECF No. 107-5 ¶ 20 (citing
Claude Thomas Dep. 119:20–120:2; May 17, 2019 Correspondence from Mr. Bucher)); Plaintiff
received an e-mail from Ms. Gruenberg which contained an attachment of a price list for ED
medication (ECF No. 107-5 ¶ 22 (citing Claude Thomas Dep. 124:9–16; May 17, 2019

47

Correspondence from Ms. Gruenberg); Millers of Wyckoff and YourLifeRx’s files were found on
Jiffy Script Rx’s database (ECF No. 107-5 ¶¶ 30–31 (citing Aug. 23, 2019 Correspondence));
Plaintiff sent a fax to a physician’s office on behalf of Medicos which included a price list he had
“created” (ECF No. 107-5 ¶¶ 36, 38 (citing Oct. 2019 Fox Cover Sheet; Syed Hussaini Dep. 114:8–
116:4)); the Employee Handbook contains a relevant confidentiality agreement and Plaintiff
signed this confidentiality agreement (ECF No. 99-1 ¶ 9 (citing Claude Thomas Dep. 94:9–96:5;
the Employee Handbook’s Signature Page)).
Based on these facts, the Court finds there is ample factual support for Defendants’ Eighth
Counterclaim to survive summary judgment because a reasonable factfinder could find Plaintiff
misappropriated trade secrets in violation of the NJTSA. See Lamorte Burns, 770 A.2d at 1166;
AYR Composition, Inc., 619 A.2d at 597. Accordingly, the portion of Plaintiff’s Cross-Motion
seeking summary judgment on Defendants’ Eighth Counterclaim is denied.
7.

Summary Judgment in Favor of Plaintiff on Defendants’
Counterclaims for Violation of the NJCROA (Ninth Counterclaim) and
the CFAA (Tenth Counterclaim) Is Warranted

As to the Ninth and Tenth Counterclaims, Plaintiff asserts Defendants’ Ninth Counterclaim
under the NJCROA fails because Defendants have not set forth the statutory elements required to
establish they were damaged in business or property. (ECF No. 102-4 at 7.) Plaintiff also contends
Defendants’ Tenth Counterclaim under the CFAA cannot be established because Plaintiff was
never party to a confidentiality agreement and there is no evidence Plaintiff suffered damages or
impairment to a computer or computer system. (Id. at 8.)
In opposition, Defendants submit there is sufficient evidence for Defendants’ Ninth
Counterclaim to proceed because: (1) under the NJCROA, a defendant is liable for “purposeful[ly]
and knowing[ly]” removing or destroying computer data (ECF No. 107 at 29–30 (citing N.J. Stat.

48

Ann. § 2A:38A-1, et seq.) (alteration in original)); and (2) “the record evidence demonstrates that
Plaintiff utilized the information he stole to compete against Defendants in direct violation of the
confidentiality agreement between the parties” (id. at 30). Defendants assert summary judgment
as to the Tenth Counterclaim must be denied because Plaintiff has admitted he had access to
Defendants’ computer system and the record establishes Plaintiff utilized the information he stole
to compete against Defendants in violation of the confidentiality agreement between the parties.
(Id. at 29–30.)
In reply, Plaintiff reiterates Defendants have not set forth the statutory elements contained
in N.J. Stat. Ann. § 2A:38A-3. (ECF No. 108 at 5.) As to the CFAA, Plaintiff argues “Defendants
have never, in any pleading even remotely suggested that any of Plaintiff’s alleged misconduct
involved harm of any kind to any computer, computer system, computer network or software” and
that there is no evidence of monetary damages. (Id. at 5.)
“The New Jersey Computer Related Offenses Act makes it unlawful to alter, damage,
access, or obtain data from a computer without authorization.” In re Nickelodeon Consumer Priv.
Litig., 827 F.3d 262, 277 (3d Cir. 2016) “The CFAA is a criminal statute which penalizes a range
of computer offenses and also provides a civil remedy in certain circumstances to persons who
suffer damage or loss as a result of a violation of its provisions.” Christie v. Nat’l Inst. Of Newman
Stud., Civ. A. No. 16-6572, 2019 WL 1916204, at *5 (D.N.J. Apr. 30, 2019) (internal citations
omitted). “[T]he CFAA prohibits the knowing or purposeful unauthorized access to, or
transmission of, protected computer data.” Id. (citing 18 U.S.C. § 1030(a); Grant Mfg. & Alloying,
Inc. v. McIlvain, 499 F. App’x 157, 159 (3d Cir. 2012)). Under the CFAA, a private cause of action
is also permitted. See 18 U.S.C. § 1030(g); Grant Mfg., 499 F. App’x at 159.
“An employee accesses a computer without authorization when he has no rights, limited or

49

otherwise, to access the computer in question.” Synthes, Inc. v. Emerge Med., Inc., Civ. A. No. 111566, 2012 WL 4205476, at *16 (E.D. Pa. Sep. 19, 2012) (internal citation and quotations
omitted). The Ninth Circuit has held “an employer gives an employee ‘authorization’ to access a
company computer when the employer gives the employee permission to use it.” LVRC Holdings
LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009).
“Importantly, an employee who accesses a computer by the terms of his or her employment
is ‘authorized’ to use that computer for purposes of the CFAA even if the purpose in doing so is
to misuse or misappropriate the information.” Christie, 2019 WL 1916204, at *5 (citing Bro-Tech
Corp. v. Thermax, Inc., 651 F. Supp. 2d 378, 407 (E.D. Pa. 2009); see also Diamond Power Int’l,
Inc. v. Davidson, 540 F. Supp. 2d 1322 (N.D. Ga. 2007); Brett Senior & Assocs., P.C. v. Fitzgerald,
Civ. A. No. 06-1412, 2007 WL 2043377 (E.D. Pa. Jul. 13, 2007); Lockheed Martin Corp. v. Speed,
Civ. A. No. 05-31, 2006 WL 2683058 (M.D. Fla. Aug. 1, 2006); Int’l Ass’n of Machinists &
Aero. Workers v. Werner-Matsuda, 390 F. Supp. 2d 479, 495 (D. Md. 2005); Shamrock Foods Co.
v. Gast, 535 F. Supp. 2d 962, 965 (D. Ariz. 2008)). “In other words, what one intends to do with
information taken from a computer is irrelevant if the individual was given computer access to that
information.” Christie, 2019 WL 1916204, at *5 (citing QVC, Inc. v. Resultly, LLC, 159 F. Supp.
3d 576, 595 (E.D. Pa. 2016)).
The Third Circuit has noted “courts seem to have interpreted the [NJCROA] in harmony
with its federal counterpart [the CFAA].” In re Nickelodeon, 827 F.3d at 278; Mu Sigma, 2013
WL 3772724, at *9–10 (dismissing claims under the NJCROA and the CFAA for identical
reasons); Christie, 2019 WL 1916204, at *5–11 (granting summary judgment under the state and
federal computer offenses statutes for nearly identical reasons). Therefore, the Court will
concurrently address the Ninth and Tenth Counterclaim.

50

Here, the Court finds Defendants have failed to establish a genuine issue of material fact
as to Plaintiff’s authorization. Defendants do not assert Plaintiff was unauthorized to access
YourLifeRx or Millers of Wyckoff’s client list, compounding price list, or other relevant files
during his employment. Instead, it appears Defendants’ contention is that Plaintiff was
unauthorized to utilize his e-mail for receiving these relevant files during his employment. “The
CFAA does not protect the unauthorized access of e-mails. Rather, . . . the statute only protects the
unauthorized access of computers, not stored electronic communication in the form of e-mails.”
Christie, 2019 WL 1916204, at *6. See Owen v. Cigna, 188 F. Supp. 3d 790, 793 (N.D. Ill. 2016)
(“[T]he CFAA is aimed at unauthorized access to computers, not unauthorized access to webbased accounts.”); see also Sloan Fin. Grp., LLC v. Coe, No. 09-2659, 2010 WL 4668341, at *4
(D.S.C. Nov. 18, 2010) (“[W]hether or not it was a violation of company policy, e-mailing the
spreadsheets did not involve accessing a computer ‘without authorization’ under the CFAA.”).
Based on the foregoing, the Court finds summary judgment in favor of Plaintiff on Defendants
Ninth and Tenth Counterclaims is warranted because Plaintiff did not engage in unauthorized
access of YourLifeRx or Millers of Wyckoff’s computers, client list, compounding price list, or
other relevant files.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment (ECF No. 99)

is GRANTED and Plaintiff’s Cross-Motion for Summary Judgment (ECF No. 102) is GRANTED
IN PART and DENIED IN PART. An appropriate Order follows.

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

Dated: February 5, 2024
51