DARLEEN BRUNNER v. VERTIS, INC. and PETER TINDALL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0036-07T10036-07T1

DARLEEN BRUNNER,

Plaintiff-Appellant,

v.

VERTIS, INC. and PETER

TINDALL,

Defendants-Respondents.

_______________________________________

 

Argued October 21, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8268-05.

George T. Daggett argued the cause for appellant (Daggett, Kraemer, Eliades, Kovach & Ursin, attorneys; Mr. Daggett, on the briefs).

Robert H. Bernstein argued the cause for respondents (Thompson Coburn, L.L.P., attorneys; Mr. Bernstein, of counsel; Mr. Bernstein and Edwin C. Ernst, IV, on the brief).

PER CURIAM

Plaintiff Darleen Brunner appeals from an order entered by the trial court on August 8, 2007, which granted summary judgment in favor of defendants Vertis, Inc. (Vertis) and Peter Tindall (Tindall). We affirm.

Plaintiff was employed by Vertis from August 1979 through November 2003, when her employment was terminated. At the time she was fired, plaintiff held the position of "Prepress Workflow Specialist Supervisor." Plaintiff had responsibility for, among other things, supervising the production of commercial print advertisements for Vertis' customers. Tindall was Vertis' Director of Operations.

It appears that through 2002, plaintiff's supervisors found her work to be satisfactory. In November 2002, plaintiff's supervisor John O'Pecko rated plaintiff as "fully competent" and noted in his evaluation that plaintiff had been making "a positive contribution" to her department and the company. Thereafter, plaintiff's supervisors noted deficiencies in her job performance.

In January 2003, Grant Bayer, the manager of Vertis' Prepress Department, issued a written warning to plaintiff because of her "inexcusable failure" to schedule and complete certain printing jobs. Furthermore, in June 2003, O'Pecko issued another written warning to plaintiff. O'Pecko noted several instances of plaintiff's inadequate performance, including the aforementioned failure to schedule and complete work in January 2003; the mailing of a film package to the wrong location in February 2003; and her work on "the wrong job for [two] shifts."

O'Pecko placed plaintiff on a performance improvement plan. She was required to review all of the work in her department and to "prioritize accordingly." O'Pecko instructed plaintiff to "communicate priorities and work production expectations to second and third shifts" and document on a weekly basis any defective or improper work or personnel issues. Even so, there continued to be complaints about plaintiff's poor supervisory work and other performance issues.

In September 2003, plaintiff met with Bayer and Paul Kleiner, the company's Human Resources Manager, to discuss the continuing problems with her performance. Bayer summarized the discussion in a memorandum that he placed in plaintiff's file. He wrote that "prep and facility people" had complained about plaintiff's negative behavior. They said that plaintiff had slammed things on a table and kicked or shoved chairs across the room. There also had been complaints that plaintiff "talk[ed] down" to "prep employees to the point of intimidating them."

Bayer wrote that plaintiff's job was "critical to the success" of the "prep" department. He noted that plaintiff was on the second shift and her "main function" was to prioritize work for up to three plants and communicate with the "prep" employees on the second and third shifts.

Bayer directed plaintiff to "make clear and concise instructions for both shifts" and provide those instructions to the persons working on those shifts. He wrote that the company expected "immediate and sustained improvement in the areas we discussed." Bayer said that plaintiff's failure to meet these expectations could result in disciplinary action including termination.

On October 25, 2003, plaintiff was one of three Vertis employees working on the production of a color print advertisement for Canon USA, Inc. Plaintiff was the only supervisor working on this project. Before the advertisement could be sent to press, the Vertis employees had to check three boxes at the bottom of a document called a "sherpa."

The boxes on the sherpa were marked DIT (for Digital Imposition Technician); DOT (for Digital Output Technician); and QA (for Quality Assurance). One employee checked the DIT and plaintiff checked the boxes for DOT and QA. As a result, the Canon advertisement was sent to press; however, it was later discovered that type was missing and the job had to be re-run at a cost to the company of over $200,000.

On November 14, 2003, Tindall informed plaintiff that she was fired. In a written notice, Tindall stated that plaintiff had initialed the sherpa for the Canon job but failed to ensure that the advertisement matched the material that had been supplied by the customer. He wrote, "Had you performed your job function properly this costly error would have been avoided." Tindall stated that plaintiff's "poor performance has led us to the decision to terminate your employment, effective immediately."

On November 14, 2005, plaintiff filed an action in the Law Division against Vertis and Tindall. She alleged that her termination was the result of gender discrimination in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49. She also alleged that her termination was contrary to a "contractual" relationship with Vertis. Following discovery, defendants filed a motion for summary judgment. In responding to that motion, plaintiff asserted that she was discharged not only because she is a female but also because of her sexual orientation.

On August 8, 2007, Judge Alexander P. Waugh filed a written opinion in which he concluded that plaintiff had not established that she had a contractual right to continued employment. The judge also concluded that plaintiff had not presented sufficient evidence to support her NJLAD claims. The judge entered an order dated August 8, 2007 granting summary judgment in favor of defendants and dismissing plaintiff's complaint with prejudice. This appeal followed.

Plaintiff argues that the judge erred by granting summary judgment to defendant on her NJLAD claims. Plaintiff maintains that she presented sufficient evidence to show that the reasons proffered by defendants for her termination were pretextual. Plaintiff contends that the evidence was sufficient to raise a genuine issue of material fact as to whether she was fired because she is a female.

We have carefully considered the record in light of these contentions and the applicable law. We are convinced that plaintiff's arguments are entirely without merit. We therefore affirm the order granting summary judgment to defendants substantially for the reasons stated by Judge Waugh in his thorough and comprehensive written opinion dated August 8, 2007. R. 2:11-3(e)(1)(E). We add the following brief comments.

When reviewing an order granting summary judgment, we apply the same standard that is applied by the trial court when considering a summary judgment motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion should be granted if the evidential materials before the court "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

Here, the judge correctly analyzed plaintiff's NJLAD claims based on the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under that template, the plaintiff first must present sufficient evidence to establish a prima facie case of unlawful discrimination. Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988) (citing Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 82 (1978)); McDonnell Douglas, supra, 411 U.S. at 807, 93 S. Ct. at 1826, 36 L. Ed. 2d at 680. The defendant then has the burden to present evidence establishing a legitimate, non-discriminatory reason for its employment action. Dixon, supra, 110 N.J. at 442 (citing Peper, supra, 77 N.J. at 83). If the defendant presents such evidence, the burden shifts back to plaintiff to prove that the defendant's proffered reasons are merely a pretext for unlawful discrimination. Ibid. (citing Peper, supra, 77 N.J. at 83).

There is a question as to whether plaintiff established that she was meeting the legitimate expectations of her employer. There also is a question as to whether plaintiff established any basis for a claim of discrimination based on her sexual orientation. We assume, however, for purposes of this decision that plaintiff presented a prima facie case of discrimination.

As we stated previously, defendants presented evidence which established that plaintiff was fired for legitimate, non-discriminatory reasons, specifically plaintiff's record of poor performance and her costly error in signing off on the Canon job. Plaintiff therefore had the burden of presenting sufficient evidence to raise a genuine issue of material fact as to whether defendants' reasons for terminating her employment were pretextual.

To meet that burden, plaintiff had to do more than establish that the employer's reasons for its action are false. Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002) (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 561 (1990)). Plaintiff had to show that "the employer was motivated by discriminatory intent." Ibid. (citing Erickson, supra, 117 N.J. at 561). In the context of a summary judgment motion, plaintiff may meet that burden "either by producing circumstantial or direct evidence that discrimination was more likely than not a motivating or determinative cause of the action or by discrediting the reason offered by the employer as the legitimate and non-discriminatory one." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 173 (App. Div. 2005). We are convinced from our review of the record that plaintiff failed to present sufficient evidence to show that defendants' reasons for her termination were a pretext for unlawful discrimination.

Plaintiff asserts that in July 2002, when Vertis was reducing the workforce at its North Brunswick facility, she refused to take the severance package offered to her. Consequently, a male worker with less seniority was fired. Plaintiff claims that, thereafter, the company was out "to get her." However, as defendants point out, if the company wanted to terminate plaintiff, it could have done so in July 2002 at the time of the downsizing. Instead, Vertis terminated the male employee and allowed plaintiff to continue working. Furthermore, even after noting deficiencies in her performance, the company gave plaintiff an opportunity to improve.

Plaintiff also asserts that discriminatory intent on the part of defendants could be inferred from the fact that she was fired for the error on the Canon print job but another employee was not disciplined for his error on that project. However, as the judge stated in his opinion, unless the employer had a discriminatory motive, its "decision to discipline one employee and not another" is not a basis for relief under the NJLAD particularly where, as here, plaintiff was the supervisor with a record of prior performance problems and the other employee had no supervisory responsibilities or record of work deficiencies.

Plaintiff nevertheless insists that she did not have responsibility to oversee or ensure the quality of the Canon print job. In support of this contention, plaintiff relies upon a memorandum dated April 7, 2003, written by O'Pecko, which purportedly indicates that she was not responsible for the errors related to the Canon job. Plaintiff conceded, however, in her deposition testimony that she was the supervisor of the shift when the error occurred and, in that capacity, had the responsibility for ensuring that all of the employees under her supervision did their jobs correctly. Plaintiff also admitted that she was responsible for verifying and monitoring the products before they went to press.

In any event, regardless of whether the O'Pecko memo placed the responsibility for the Canon project on someone else, the fact remains that plaintiff signed off on the advertisement and sent it to be printed even though it did not include all of the material submitted by the customer. Moreover, as the judge found, even if defendants had erroneously blamed plaintiff for the mistake on the Canon project, that fact alone does not warrant an inference that the motivating cause of plaintiff's termination was unlawful discrimination on the basis of gender or sexual orientation.

Other evidence before the trial court also refuted plaintiff's claim that defendants acted with discriminatory intent when terminating her employment. In her deposition, plaintiff testified that she did not have any facts to show that any male employee at the company had been given preferential treatment. Plaintiff also conceded that she was not aware of any male employees at Vertis who had performance problems similar to hers and had not been disciplined. In addition, plaintiff did not present any evidence to show that her termination was related in any way to her sexual orientation.

We therefore are satisfied that the judge correctly found that plaintiff failed to present sufficient evidence to raise a genuine issue of material fact as to whether the reasons proffered by defendants for her termination were a pretext for unlawful discrimination on the basis of gender or sexual orientation in violation of the NJLAD. The judge correctly determined that the evidence on this issue was so "'one-sided'" that defendants were entitled as a matter of law to judgment on plaintiff's NJLAD claims. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Affirmed.

 

We note that in her brief, plaintiff has not presented any argument challenging the dismissal of her breach of contract claim. Because that issue has not been briefed, it is deemed waived. W. H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).

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A-0036-07T1

November 24, 2008