NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1646-13T3

RICHARD J. SMITH,
Plaintiff-Appellant,
v.
HUTCHINSON PLUMBING HEATING
COOLING,
Defendant-Respondent,
and
FRED HUTCHINSON, EDWARD HUTCHINSON,
WILLIAM HUTCHINSON, ROBERT HUTCHINSON,
MICHAEL SHILES, CAREY HERRMAN,
FRED MATHEWSON and MARCUS BRATTON,
Defendants.
____________________________________
Argued February 3, 2015 Decided March 2, 2015
Before Judges Fisher, Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket
No. L-0992-12.
Robert J. Hagerty argued the cause for
appellant (Hagerty Law P.C., attorneys; Mr.
Hagerty, of counsel and on the brief).
Richard J. DeFortuna argued the cause for
respondents (Paisner-Litvin, LLP, attorneys;

Mr. DeFortuna and Donna M. Candelora, of

counsel and on the brief).
PER CURIAM
Plaintiff Richard Smith appeals from the entry of summary
judgment dismissing his complaint against defendant Hutchinson
Plumbing Heating Cooling,1 to compel an accounting and for
violation of the Wage Payment Law (WPL), N.J.S.A. 34:11-4.1
to -4.14, breach of contract, quantum meruit, unjust enrichment,
breach of the implied covenant of good faith and fair dealing,
intentional misrepresentation, negligent misrepresentation,
hostile environment and retaliation for complaints of religious
discrimination under the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49, civil conspiracy, violation of the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1
to -8, fraudulent concealment of evidence and negligent
destruction of evidence.

For the reasons that follow, we affirm

the dismissal of all counts with the exception of plaintiff's

claims that he was subjected to a hostile work environment and
retaliatory discharge.

Plaintiff consented to the voluntary dismissal of all claims

against the individual defendants in the trial court. As the
count for civil conspiracy was pled only against these
individuals, it was likewise dismissed prior to summary
judgment.

A-1646-13T3

The essential facts are largely undisputed, with certain

notable exceptions, which we relate in the light most favorable
to plaintiff.

Defendant Hutchinson bills itself as the largest

HVAC company in southern New Jersey, providing a full range of

plumbing, heating and air conditioning services.

From October

2009 until his discharge in May 2012, plaintiff worked as a

commissioned salesman in Hutchinson's residential services
department.

He was paid entirely on commission, receiving only

a weekly draw against future commissions.

In February 2010, four months after assuming his sales
position, plaintiff came to believe he was not being paid his
promised commission rate.

Plaintiff complained that every time

he questioned his commission, which was often, "Fred Hutchinson

gave [him] some incomprehensible answer that made no sense at
all."
The parties' relations became increasingly strained around
the issue of plaintiff's commissions over the following two
years.

Plaintiff felt as if he could never get a straight

answer as to how defendant calculated commissions.

He also

believed defendant changed the manner in which commissions were

calculated.

Defendant insisted it had not done so.

Defendant's

management team believed they spent a great deal of time

A-1646-13T3

resolving the issues to plaintiff's satisfaction, only to have

him renew his complaints within weeks or months.
In September 2011, Carey Herrman, Hutchinson's general
manager, sent an email to plaintiff confirming that management
had reviewed with him his 2009 sales and provided him with pay
summaries showing he was paid in full for 2009 in 2010, stating
"[y]ou have agreed to this."

The email continued:

We will review all jobs sold by you in

2010. We will supply you with a list of the
total sold jobs and percentage of commission
which you need to verify your total number
of jobs sold and value. We will verify your
pay for 2010.
We will move forward with the 2011
process and review of all jobs sold on a
monthly basis.
As you well know, some of the funds for
2010 went toward [the] 2011 draw. We will
verify with you so that all parties are
satisfied.
After all verifications we will no
longer talk about 2009 or 2010 and will move
forward with the verification process on a
monthly basis.
Please reply to this email and verify
that you understand and agree.
Plaintiff replied stating:
I agree with all statements and look
forward to settling my commissions statement
asap. We believe there is 39k that is due
and would like it @5k a week for the next 8
weeks to soften the tax blow.

A-1646-13T3

In late 2011, plaintiff claims that his sales manager,

Marcus Bratton, and Herrman told him to stop talking with the
other salespeople about commissions or he would be fired.
Plaintiff also claims his sales leads from the company dried up
around the same time, and that he went from number one in sales
to last place.
In December, plaintiff attended a meeting with Fred
Hutchinson, Herrman, Bratton and Fred Mathewson, Huchinson's
chief financial officer, to once more discuss plaintiff's
commissions.

The meeting got heated when plaintiff again raised

the issue of unpaid 2009 commission.

He eventually walked out

and shortly thereafter hired a lawyer.

Plaintiff's lawyer wrote to defendant in January 2012
demanding documents relating to plaintiff's commission
calculations and payments.

Enclosed in the letter was a draft

complaint asserting claims under the WPL and for breach of

contract.

The letter also addressed "a number of questionable

business practices" at the company.

Included among those claims

was that "Mark Bratton put his pocket knife up against

[plaintiff's] testicles" and referred to "you Jews" when
addressing him.
After obtaining the details of plaintiff's allegations
against Bratton from plaintiff's counsel, the company hired an

A-1646-13T3

outside investigator to review his claims.

Plaintiff claimed in

October 2011, at a poker game at Fred Hutchinson's home, Bratton

said "isn't it just like the Jew not to put the money up" when
plaintiff failed to "ante up" prior to a hand.

The other

players, almost all of whom worked for the company, laughed.

At

Christmastime that year, plaintiff walked into the breakroom

where other employees were discussing raffling off a Christmas
tree when Bratton yelled out "yeah, you Jews don't have
Christmas trees do you."

Plaintiff reported the other employees

present all laughed.

Plaintiff also claimed that after he walked out of the
contentious December meeting regarding his commissions, Bratton
followed him into Herrman's office.

While the two were alone,

plaintiff claims Bratton took a penknife from his pocket and

pressed it to plaintiff's testicles saying, "This is what we do
to Jews who don't cooperate."

Plaintiff claims he reported the

incident to Herrman the following day.

Herrman told the

investigator that plaintiff "made him aware of it," and that he

went to Fred Hutchinson with plaintiff's claim.

The

investigator was unable to substantiate any of the charges,

although she noted one of the other card players recalled
Bratton making the statement about Jews not putting up the money
when plaintiff was slow to ante up on a hand.

A-1646-13T3

Defendant provided plaintiff's counsel with sales and

commission documents in response to her demand, and the parties
met in an effort to resolve their pay dispute.

They could not

bridge their differences, however, and plaintiff filed his

complaint for violations of the WPL and breach of contract in
February 2012.

Relations thereafter continued to deteriorate

between the parties.

Plaintiff missed work meetings because he

was meeting with his attorney during working hours, and

management complained he was also missing appointments with
customers and failing to complete necessary paperwork correctly
or in a timely fashion.
Plaintiff complained that he "was expected to attend
meetings that were a waste of time" and that defendant was
retaliating against him for his "complaints about Bratton's
anti-Semitic behavior and [his] complaints about not being paid
properly."

Plaintiff complained to Mathewson and Herrman in

April that at a sales meeting on February 24, Fred Hutchinson

looked in plaintiff's direction and "suddenly and unexpectedly
stopped what he was saying, said 'Jew Jew' and winked at
Bratton," who, unbeknownst to plaintiff, was sitting behind him.
Eventually, plaintiff refused to attend commission meetings
with the sales staff concluding that "Hutchinson management was
never going to give [him] an understandable explanation."

He

A-1646-13T3

also refused to take any more sales calls in Pennsylvania and

then refused to take any sales calls at all until he received
commissions he believed were owed.

Plaintiff claimed "that

after two years of being 'jerked around' by [defendant, he] was

fed up and declined to attend meetings that were a waste of time
and declined to make calls in Pennsylvania, as he had not been
hired to work in Pennsylvania."

After several written warnings,

Fred Hutchinson terminated plaintiff's employment in May 2012

based on information regarding plaintiff's performance provided
by Mathewson, Bratton and Herrman.
Following his firing, plaintiff amended his complaint to
add claims of hostile work environment.

He subsequently amended

it again to add claims of retaliatory discharge under the LAD

and CEPA.

In that second amended complaint, plaintiff alleged

defendant cheated customers out of a portion of a rebate offered

by an equipment manufacturer on specified items by increasing
the price of the item to cover defendant's participation share
and signed customers' names without their permission to ballots
submitted to the Courier Post newspaper's "Best of South Jersey"
contest in violation of the contest's rules.

Plaintiff asserted

he complained about both of these practices to Herrman.

Plaintiff included in his complaint a count for negligent

A-1646-13T3

spoliation of evidence based on defendant's failure to retain

copies of the ballots it submitted to the newspaper.
After hearing argument, the trial court granted defendant's
motion for summary judgment and dismissed plaintiff's claims in
their entirety.

The court found that despite extensive

discovery, plaintiff had failed to present any evidence that

defendant did not maintain proper records, had not paid
plaintiff all wages due and owing, or had ever changed the
method of calculating plaintiff's commission.

The court found

that plaintiff had no proof of any intentional or negligent

misrepresentation and no evidence of any fraud.
As to plaintiff's wrongful discharge claims, the court
found that following the filing of his complaint, plaintiff
refused to attend meetings or take sales calls in Pennsylvania.
The court rejected plaintiff's claims that he was excused from
attending scheduled work meetings because he was engaged in the
protected activity of meeting with his lawyer.

Citing

plaintiff's admitted conduct of refusing to attend meetings

called by his employer he considered a waste of time and
refusing to take sales calls in Pennsylvania, despite it being
within the territory assigned in his employment agreement, the
court dismissed plaintiff's claims for wrongful discharge.

A-1646-13T3

The trial court focused the greater part of its opinion,

as the parties had their arguments, on the hostile environment
claim.

The court found plaintiff never reported Bratton's

"alleged hostile remark" following the December 2011 commission

meeting and that the outside investigator was unable to
substantiate plaintiff's claim.

Finding that defendant has a

"comprehensive anti-harassment program" which plaintiff failed

to utilize, the court concluded that single incident was not
sufficient to create a hostile environment under Taylor v.
Metzger, 152 N.J. 490 (1998).
We review summary judgment using the same standard that
governs the trial court.
N.J. 581, 584 (2012).

Murray v. Plainfield Rescue Squad, 210

Thus, we consider "'whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail
as a matter of law.'"

Liberty Surplus Ins. Corp., Inc. v.

Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).
We agree with the trial court that all of plaintiff's
claims relating to the payment of his commissions were properly
dismissed on summary judgment.

Plaintiff acknowledges that

defendant produced over 300,000 documents in discovery.

In

addition to every estimating spreadsheet he used during his

10

A-1646-13T3

employment, plaintiff also inspected every job file for all

sales he made from 2009 through 2012 and "imaged" the company
laptop he used during his employment.

Although plaintiff

continues to maintain unspecified documents have not been

produced, that defendant changed its method of calculating his
commission and that he has not been paid all that is due, he
produced no evidence for his claims, notwithstanding this
extensive discovery.2

The complete absence of any support in

this record for plaintiff's method of calculating his

commissions is fatal to his claims.

The trial court

appropriately entered summary judgment on all claims relating to

the calculation and payment of plaintiff's commission.
We do not agree, however, that plaintiff's hostile
environment claim could be resolved on summary judgment.

To

establish a cause of action under the LAD based on a hostile

work environment, plaintiff must prove that the complained-of
conduct:

(1) would not have occurred but for the employee's

protected status and was (2) severe or pervasive enough to make

We reject plaintiff's contention that a document which states

"This is how commissions are calculated (As of 2011)"
constitutes proof that defendant changed its commission
calculation on the theory that "[i]f there is a methodology 'as
of 2011,' then there must have been a different one in 2010."
In opposing a motion for summary judgment, plaintiff is entitled
only to all "legitimate" inferences that can be drawn in his
favor. See R. 4:46-2(c).

11

A-1646-13T3

a (3) reasonable person of plaintiff's protected status believe

that (4) the conditions of employment have been altered and that
the working environment is hostile or abusive.

Cutler v. Dorn,

196 N.J. 419, 430 (2008) (citing Lehmann v. Toys 'R' Us, Inc.,
132 N.J. 587, 603-04 (1993)).
In determining whether conduct is sufficiently severe or
pervasive to constitute an actionable hostile environment, the
focus is not on plaintiff's subjective response to the alleged
hostile acts but on the acts themselves.

Id. at 431.

We are

also not to look at each complained-of act in isolation.

v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003).

Green
Instead,

we look to "all 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."
[Shepherd v. Hunterdon Developmental Ctr.,
174 N.J. 1, 19-20 (2002) (quoting Nat'l
Railroad Passenger Corp., 536 U.S. 101, 116,
122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106,
124 (2002)).]
Plaintiff alleged that his supervisor, sales manager
Bratton, created an actionable hostile environment based on
plaintiff's Jewish faith and ancestry.

Thus the appropriate

test for measuring his claim is whether "a reasonable person of

plaintiff's religion or ancestry would consider the workplace

12

A-1646-13T3

acts and comments made to, or in the presence of, plaintiff to

be sufficiently severe or pervasive to alter the conditions of
employment and create a hostile working environment."

Cutler,

supra, 196 N.J. at 430 (citing El-Sioufi v. St. Peter's Univ.

Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005)).
For reasons not altogether clear to us, the trial court
looked only at the penknife incident in evaluating plaintiff's
claim, considering whether that incident, standing alone, was
sufficiently severe to create a hostile environment under
Taylor.3

Although that was the only physical act plaintiff

complained of, plaintiff identified two other specific remarks

by Bratton which he characterized as anti-Semitic.

As to one of

those remarks, the one at the card game, plaintiff's account was
corroborated by one of the other players.

Although defendant's

outside investigator could not substantiate plaintiff's claims,

her notes make clear that one of the participants heard Bratton
make the remark alleged, and the player further maintained "that
everyone else who was there [Fred Hutchinson, among others]
should have said the same thing," as all laughed at the comment.

We surmise the judge concluded the other two remarks allegedly

made by Bratton were not sufficiently severe or pervasive to
alter plaintiff's conditions of employment. Even if correct,
which we assume without deciding, the remarks do not "drop out"
of the analysis.

13

A-1646-13T3

Moreover, we think there is no doubt that a rational

factfinder could reasonably find the penknife incident
sufficiently severe to make a reasonable person of Jewish faith
or ancestry believe the conditions of his employment had been
altered and the workplace rendered a hostile one.

See Cutler,

supra, 196 N.J. at 430; Taylor, supra, 152 N.J. at 500-01.

The

words, which specifically referenced plaintiff's faith or

ancestry, were accompanied by a physically threatening and
humiliating act.
supervisor.

And they were spoken by plaintiff's

Although it is the rare case in which a single

remark is found sufficient to create a hostile environment, this

case was not limited to words but involved a physical threat with a knife.

The incident also followed two other remarks in

the preceding months mocking defendant's faith or ancestry in

the presence of other employees.
We further do not conclude that defendant's antidiscrimination policy, relied upon by the trial court, entitled
defendant to summary judgment on this record.

First, an anti-

discrimination policy will not shield an employer from liability

for discriminatory acts of a supervisor acting within the scope
of his employment.

See Lehmann, supra, 132 N.J. at 619.

The

Court in Lehmann made unmistakably clear "that under

14

A-1646-13T3

[Restatement (Second) of Agency] 219(1)[4] an employer whose

supervisory employee is acting within the scope of his or her
employment will be liable for the supervisor's conduct in
creating a hostile work environment."

Ibid.

The scenario presented on the motion was not the more

common example of sexual harassment pursued for the harasser's
own ends.

See id. at 623-24.

Accepting plaintiff's version of

the encounter as true, as we must for purposes of the motion,

Brill, supra, 142 N.J. at 535-36, the incident occurred after a
heated meeting he had with Fred Hutchinson, Mathewson, Herrman
and Bratton over his commissions for 2009 and 2010.

Plaintiff

claimed he left the meeting saying he would meet Herrman in his

office to "get clarification" about an issue over the books for
those years.

When plaintiff walked to Herrman's office, Bratton

followed him there and threatened him with a penknife against

his testicles saying, "This is what we do to Jews who don't
cooperate."
In our view, there can be little doubt that Bratton was
acting within the scope of his employment in attempting to

Restatement (Second) of Agency (1958) has been superseded by

Restatement (Third) of Agency (2006). Section 219 of the
Restatement (Second) of Agency, along with 220, 228, 229,
230, 231, 232, 233, 234, 235, 236, 237 and 267 have been
subsumed and consolidated in Restatement (Third) of Agency
7.07 (2006). Reporter's Notes to 7.07.

15

A-1646-13T3

dissuade plaintiff from pursuing his claims for unpaid

commissions.

See Burlington Industries v. Ellerth, 524 U.S.

742, 756, 118 S. Ct. 2257, 2266, 141 L. Ed. 2d 633, 649 (1998)
("While early decisions absolved employers of liability for the
intentional torts of their employees, the law now imposes
liability where the employee's 'purpose, however misguided, is
wholly or in part to further the master's business.'") (quoting
W. Page Keeton et al., Prosser and Keeton on Law of Torts 70,
at 505 (5th ed. 1984)).

Bratton was Hutchinson's sales manager

and supervisor of its commissioned sales staff, including

plaintiff, and the act occurred in defendant's offices
immediately after a contentious meeting regarding plaintiff's
complaints about unpaid commissions.
Agency, 7.07 (2006).

See Restatement (Third) of

Nor is the fact that Bratton wielded a

penknife in the encounter likely sufficient to take it outside

the scope of his employment.5

See id. at 7.07, comment b

("[A]n employee's tortious conduct is outside the scope of

5

Although whether Bratton was acting within the scope of his

employment, thus making Hutchinson vicariously liable for his
acts, likely could be resolved as a matter of law, see Luchejko
v. City of Hoboken, 207 N.J. 191, 211 (2011), we do not do so on
this record. The issue has not been briefed, or even addressed,
by the parties. It is thus better resolved on remand. See
Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc., 185 N.J.
40, 57 (2005) (declining to find point not argued by any party
dispositive of issue on appeal).

16

A-1646-13T3

employment when the employee is engaged in an independent course

of conduct not intended to further any purpose of the employer.
An independent course of conduct represents a departure from,
not an escalation of, conduct involved in performing assigned
work.").
Second, even if Bratton is considered to have acted outside
the scope of his employment, factual disputes over plaintiff's
utilization of defendant's anti-discrimination policy and its
effectiveness preclude summary judgment to defendant on this
record.

In evaluating defendant's vicarious liability for

Bratton's conduct under Restatement (Second) of Agency 219(2)

(now Restatement (Third) of Agency 7.07(2)), that is for any
conduct considered to have been outside the scope of his
employment, the court must consider whether defendant's antidiscrimination policy will provide defendant a defense to
liability.

The Supreme Court recently reiterated that an

employer's implementation and enforcement of an effective antiharassment policy is a critical factor in assessing a
plaintiff's negligence claim under Restatement (Second) of
Agency 219(2)(b), and adopted the Ellerth/Faragher 6 standard
for claims under Restatement [Second of Agency] 219(2)(d),
6

Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. Ed.
2d at 655; Faragher v. City of Boca Raton, 524 U.S. 775, 807-08,
118 S. Ct. 2275, 2292-93, 141 L. Ed. 2d 662, 689 (1998).

17

A-1646-13T3

thus allowing employers an affirmative defense to supervisory

hostile environment claims based on the employer's creation and
enforcement of an effective policy against sexual harassment, so
long as the employee suffered no tangible employment action.
Aguas v. State of New Jersey, ___

N.J. ___, ___ (2015) (slip

op. at 11, 47-48).

Defendant contended it was entitled to summary judgment on
plaintiff's hostile environment claim because plaintiff did not
utilize the company's anti-discrimination policy by promptly
reporting the penknife incident.

Plaintiff disputes that.

He

contends that he complained to Herrman about the incident the

next day, and the investigator's notes appear to corroborate his
claim.

This dispute of fact was sufficient to deny defendant

summary judgment, and the court erred in overlooking it in

accepting defendant's contention that plaintiff never reported
Bratton's conduct.
But the trial court also erred in failing to consider
plaintiff's proofs that defendant's anti-discrimination policy
was ineffective because it was incomplete and the company had
never conducted any training on workplace discrimination or
harassment.

Aguas, supra,

___

N.J. ___ (slip op. at 50)

(reiterating that "an employer that implements an ineffective

anti-harassment policy, or fails to enforce its policy, may not

18

A-1646-13T3

assert the affirmative defense").

In Gaines v. Bellino, 173

N.J. 301, 320 (2002), the Court held squarely that although a
defendant can assert the existence of an effective antidiscrimination policy as an affirmative defense to vicarious
liability, "material issues of disputed fact in the context of a
motion record can deny a defendant summary dismissal based on
that defense."
Here, defendant presented the deposition testimony of
defendant's human resource manager that the company never
conducted any training on its anti-discrimination policy.
Accordingly, defendant's proof of lack of training on the policy
put its effectiveness in issue and precluded summary judgment to
defendant on the basis of the affirmative defense.

There was

thus no basis for entry of summary judgment to defendant on

plaintiff's hostile environment claim.7
We also disagree that all of plaintiff's claims for
retaliatory discharge were properly dismissed on summary
judgment.

In order to prove a retaliatory discharge claim under

the burden-shifting analysis of McDonnell Douglas Corp. v.

7

Plaintiff may also be entitled to argue that the defense is not

available to defendant on the basis of his contention that the
hostile environment resulted in his termination, an obvious
adverse employment action. See Aguas, supra, ___ N.J. ___ (slip
op. at 47-48) (holding affirmative defense based on effective
anti-discrimination policy unavailable when supervisor's
harassment culminates in tangible adverse employment action).

19

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Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d

668, 677 (1973), a plaintiff's prima facie case consists of
demonstrating:

(1) that he "'engaged in protected activity'";

(2) the activity was "'known to the [employer]'"; (3) he

suffered "'an adverse employment decision'"; and (4) there
existed "a causal link between the protected activity and the
adverse employment action."

Battaglia v. United Parcel Serv.,

Inc., 214 N.J. 518, 547 (2013) (quoting Woods-Pirozzi v. Nabisco

Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)).
We agree with the trial court that plaintiff failed to
muster the proofs required to establish a prima facie case that
he was fired in retaliation for his alleged complaints about the
manufacturer's rebate program or the "Best of South Jersey"
promotion.

Although plaintiff did not plead his CEPA violation

with any specificity, he has not identified either "a law, or a

rule or regulation promulgated pursuant to law[,]" N.J.S.A.
34:19-3a, 3c(1), or "a clear mandate of public policy concerning
the public health, safety or welfare," N.J.S.A. 34:19-3c(3),
which the employer has allegedly violated.
Corp., 153 N.J. 163, 187-88 (1998).

Mehlman v. Mobil Oil

Assuming he could do so, he

adduced no proofs of any causal link between his complaints and

his termination.

See Young v. Hobart W. Grp., 385 N.J. Super.

20

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448, 466-67 (App. Div. 2005).8

Even were plaintiff alleging

fraud under N.J.S.A. 34:19-3(a)(2), -3(c)(2), which does not

require him to make such a showing, Battaglia, supra, 214 N.J.
at 557-58, the failure to adduce evidence linking his complaints
to his termination entitled defendant to summary judgment on the
claim.
The same is not true, however, of plaintiff's claim of
retaliation under the LAD.9

Plaintiff asserts, alternatively,

that he was fired in retaliation for his complaints about

Bratton's anti-Semitic comments.10

Unlike with regard to his

We also agree plaintiff's claim for "negligent destruction of

evidence" in connection with these retaliation claims was
properly dismissed on summary judgment because plaintiff's
counsel dismissed the claim on the record. New Jersey courts do
not recognize negligent spoliation claims between parties to a
lawsuit. Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 123
n.6 (2008).
9

The trial court did not address the effect of CEPA's statutory
election of remedies provision, N.J.S.A. 34:19-8, in considering
the motion. Although we reject defendant's assertion that
plaintiff has "waived" his LAD claims by asserting a cause of
action under CEPA, the trial court on remand must consider
whether plaintiff's claim of retaliation based on his complaints
of discrimination on the basis of his faith or ancestry must be
analyzed as a form of protected activity under CEPA in order to
give effect to CEPA's election of remedies provision. See
Battaglia, supra, 214 N.J. at 556 n.9.
10

Plaintiff's claim of retaliation is not dependent on the

success of his claim for hostile environment. See Battaglia,
supra, 214 N.J. at 547-49 (rejecting this court's view that
unless the plaintiff proved an act of discrimination or a
hostile work environment, he cannot recover for retaliation).

21

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other retaliation claims, however, plaintiff presented proof of

a causal connection between his complaints about Bratton's antiSemitic conduct and his discharge.
N.J. at 547.

See Battaglia, supra, 214

First, Fred Hutchinson testified at deposition

that he determined to fire plaintiff based in part on

information he received from Bratton.

Bratton's involvement in

plaintiff's termination is sufficient to establish a causal link

between plaintiff's complaints about Bratton and his
termination.

See id. at 559; Grasso v. W. N.Y. Bd. of Educ.,

364 N.J. Super. 109, 119-20 (App. Div. 2003). But plaintiff also
alleged the actual decision maker, Fred Hutchinson, after
plaintiff's complaints about Bratton, interrupted a sales
meeting to look at plaintiff and say, "Jew Jew" while winking at
Bratton.11

Accordingly, we have no hesitation in concluding that

plaintiff made out a prima facie case of retaliatory discharge

under the LAD.12

11

The parties have not raised, and we have not considered,

whether this conduct would satisfy the Price Waterhouse standard
of direct evidence sufficient to shift the burden of persuasion
to the employer under a mixed-motive analysis. See McDevitt v.
Bill Good Builders, Inc., 175 N.J. 519, 527 (2003) (explaining
mixed-motive analysis under Price Waterhouse v. Hopkins, 490
U.S. 228, 276, 109 S. Ct. 1775, 1796-97, 104 L. Ed. 2d 268,
304-05 (1994) (O'Connor, J., concurring)).
12

Although defendant claims that plaintiff filed "baseless

claims of harassment and retaliation" only after "it became
clear that he could not legally prevail" on his commission
(continued)
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The burden would then shift to the employer to articulate a

legitimate, non-retaliatory reason for the discharge.
Stanley Roberts, Inc., 182 N.J. 436, 449 (2005).

Zive v.

If the

employer does so, thus overcoming the presumption of

discrimination, the burden shifts back to plaintiff to prove
that the employer's proffered reason for the termination was
merely a pretext for discrimination.
Sisler, 157 N.J. 188, 211 (1999).

Bergen Commercial Bank v.

Plaintiff carries that burden

by showing that a discriminatory reason more likely motivated

the employer than the reason proffered.

Ibid.

Proof that the

employer's reason is not worthy of credence is not enough.

Zive, supra, 182 N.J. at 449.

The plaintiff must prove that the

"real reason" for the employer's action was one that violated
the LAD.

Ibid.

Put another way, "[a]lthough the burden of

production shifts throughout the process, the employee at all

phases retains the burden of proof that the adverse employment
action was caused by purposeful or intentional discrimination."
Sisler, supra, 157 N.J. at 211.
Defendant's non-retaliatory reason for the discharge was
that plaintiff refused sales calls in Pennsylvania, refused to
(continued)
claims, plaintiff has made a sufficient showing that his
original complaint was both reasonable and made in good faith to
survive summary judgment. See Carmona v. Resorts Int'l Hotel,
Inc., 189 N.J. 354, 373 (2007).

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attend meetings and scheduled appointments with customers,

failed to correctly complete and submit necessary paperwork and
generally refused managerial direction.

There are certainly

facts in the record to allow a rational jury to agree that

defendant fired plaintiff for those reasons and not in
retaliation for his complaints about Bratton.
But plaintiff can point to other facts suggesting
defendant's reasons were a pretext for retaliation.

In addition

to the "Jew Jew" comment plaintiff alleges Fred Hutchinson made,

plaintiff also points to proof that other sales people missed
meetings and refused sales calls in Pennsylvania and were not
terminated.

Although defendant claims that "this matter is

simply one of pay" and plaintiff's LAD and CEPA claims added
only as an afterthought, we are satisfied that plaintiff
mustered sufficient facts on the motion to allow a rational jury
to reasonably conclude that defendant's claims about plaintiff's
performance were a pretext, and that the real reason plaintiff
was fired was because he complained about Bratton's anti-Semitic
conduct.

Because plaintiff adduced sufficient facts on the

motion to put the issue of pretext before the jury, his claim
for retaliatory discharge should not have been decided on
summary judgment.

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In sum, we affirm the grant of summary judgment to

defendant dismissing all of plaintiff's claims relating to the
calculation and payment of plaintiff's commissions.
Specifically, we affirm the dismissal of plaintiff's claims to
compel an accounting, for violation of the WPL, breach of
contract, quantum meruit, unjust enrichment, breach of the
implied covenant of good faith and fair dealing, intentional
misrepresentation, negligent misrepresentation, fraudulent
concealment of evidence and negligent destruction of evidence.
We also affirm the grant of summary judgment to defendant on
plaintiff's CEPA claims arising out of the manufacturer's rebate
program and the "Best of South Jersey" promotion.

We reverse

the grant of summary judgment to defendant on plaintiff's claim

for hostile environment on the basis of his Jewish faith and
ancestry and for retaliatory discharge based on his complaints
about Bratton's anti-Semitic conduct.
Affirmed in part; reversed in part and remanded for further
proceedings consistent with this opinion.

We do not retain

jurisdiction.

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