JUDY M. YOUNG v. DHL EXPRESS

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0706-09T1

JUDY M. YOUNG,

Plaintiff-Appellant,

v.

DHL EXPRESS (USA), INC., and

KIEL ECKHARDT,

Defendants-Respondents.

_________________________________

November 17, 2010

 

Argued on September 20, 2010 - Decided

 

Before Judges Lisa, Reisner, and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3978-07.

 

Neal M. Unger argued the cause for appellant.

 

James P. Flynn argued the cause for respondents (Epstein Becker & Green, P.C., attorneys; Carmine A. Iannaccone, of counsel and on the brief; Lauren D. Daloisio, on the brief).

PER CURIAM

The trial court granted summary judgment to defendants in this employment case brought under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. For the reasons set forth in this opinion, we affirm the trial court's dismissal of plaintiff's wrongful discharge claims and her claim of intentional infliction of emotional distress. However, we reverse the dismissal of plaintiff's claim of a gender-based hostile work environment and remand for trial on that particular claim.

I.

The record developed in discovery contains the following pertinent facts and contentions. Because we are reviewing an order granting summary judgment, we examine the factual record, and reasonable inferences that can be drawn from those facts, in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

A.

Plaintiff Judy M. Young was hired by defendant DHL Express (USA), Inc. ("DHL") in November 2003 as an account representative in its South Plainfield office. At the time, she was fifty years old and she had an associate's degree in science from Union County College. According to her resume and her application for employment with DHL,1 plaintiff had previously worked in sales and account management for various domestic and international shipping corporations since 1982, approximately twenty-one years.

As part of the application process, plaintiff signed an agreement on October 10, 2003, explicitly stating that, "[s]hould [she] become employed by DHL . . . [she] may not conduct any outside business during paid DHL working time." (Emphasis added). Later, on the date of her hire on November 10, 2003, plaintiff signed a "Confidentiality and Conflict of Interest Statement and Agreement," which included comparable language. She also signed a statement acknowledging that she had received the DHL Employee Handbook (the "Handbook") and that it was her responsibility to read and understand its contents.

Among other things, the Handbook expressly prohibits employees from "performing outside business during paid DHL working time[.]" Further, the Handbook provides that "[o]utside employment should not cause poor job performance, absenteeism, tardiness, leaving early or refusal to travel on company business[.]" It specifically prohibits the "falsification or destruction of any time-keeping, financial, employment or company record, including and without limitation, time sheets, expense reports[,] and applications for employment."

The Handbook contains several provisions that address the workplace environment. It recites that "DHL is committed to providing a work environment free of unlawful harassment based on such factors as race, color, creed, citizenship status, religion, sex, sexual orientation, national origin, ancestry, age, disability, medical condition, marital status, or status as a Vietnam-era or other veteran." (Emphasis added). In this same section, the Handbook states that "[e]ach member of management is responsible for creating an atmosphere free of unlawful harassment and discrimination, and for reporting any instances to Human Resources." Later, the Handbook states that "DHL expressly prohibits" sexual harassment in the form of "[o]ffensive comments, jokes, innuendoes, and other sexually oriented statements, either verbal or written." The Handbook also proscribes "[i]nappropriate jokes, derogatory remarks or slurs . . . relating to another person's race, age, disability, religion, national origin, sex[,] or sexual preferences" and "using abusive or vulgar language[.]"

The Handbook spells out a formal procedure for "complaints of unlawful harassment or discrimination[,]" noting that "[i]f [a DHL] employee believes any . . . harassment has occurred in the workplace, the employee should promptly report the incident to the immediate supervisor." The Handbook further states that "[i]f the employee believes it would be inappropriate to discuss the matter with the immediate supervisor, the complaint can be reported directly to a higher level of management or to Human Resources, who will undertake an investigation." The Handbook makes it clear that "[a]ll complaints will be investigated[,]" and that "DHL prohibits any form of retaliation against any employee for filing a bona fide complaint under this policy or for assisting in a complaint investigation."

B.

At the outset of plaintiff's employment, she spent three months in DHL's New York City office. After that, plaintiff was transferred to South Plainfield, where she worked as a sales representative under the District Sales Manager, Scott Goodwin. Six months later, in September 2004, Goodwin was promoted; he was replaced as District Sales Manager by Mike Massagli. At that time, the "sales team" in South Plainfield consisted of defendant Kiel Eckhardt, who was then a major account executive; six account representatives, four of whom were male and, including plaintiff, two of whom were female; and one secretary.

While Massagli was District Sales Manager, plaintiff was promoted to Account Executive in January 2005. In her performance evaluation for 2004 which Massagli filled out and co-signed with her on March 15, 2005 plaintiff was given a very favorable rating.

As part of her duties as an account executive at DHL, plaintiff was required to enter her sales appointments for each week into a software program known as COMET. According to plaintiff, she was instructed by her supervisors to make false appointment entries into COMET during certain time periods, such as when she was "doing a computer install," or when she was attending to an existing customer.2

C.

After she started working at DHL, plaintiff began to seek a second associate's degree, taking courses at Middlesex County College and pursuing a concentration in psycho-social rehabilitation. According to plaintiff, she told Massagli and a co-worker about her enrollment in these college classes.

In August 2005, plaintiff began a clinical internship at Collaborative Support Programs of New Jersey ("CSP") in Freehold. The internship was in furtherance of the requirements for her associate's degree.

In the first week of her internship at CSP, plaintiff twice logged in four hours from 10:00 a.m. until 2:00 p.m. on Tuesday, August 30, 2005, and Wednesday, August 31, 2005. The next week, according to her internship timesheet, she spent eight hours from 9:00 a.m. until 5:00 p.m. at CSP on Wednesday, September 7, 2005, and four hours from 10:00 a.m. until 2:00 p.m. at CSP on Thursday, September 8, 2005. From that point until the end of October 2005, plaintiff routinely logged in four hours a day from 10:00 a.m. until 2:00 p.m. at CSP on Tuesdays and Thursdays, and eight hours a day on Sundays.

Through the third week in November 2005, plaintiff continued to attend her internship at CSP every Tuesday and Thursday, frequently increasing her hours by arriving there at 8:00 a.m. instead of 10:00 a.m. Then, on three separate weekdays in late November and early December 2005, plaintiff spent eight full hours at CSP.

D.

Meanwhile, in December 2005, Massagli was promoted to a higher position within DSL; in place of Massagli, Eckhardt was promoted to District Sales Manager of the South Plainfield office. The only other female salesperson in the South Plainfield office resigned in 2005 to take another job. Plaintiff claims that after that female salesperson's departure, the other account representatives in South Plainfield now all men began to use vulgar language around the office within her hearing, sometimes about the female salesperson who had resigned.

For example, plaintiff alleged that one of the male account representatives made sexist comments such as: "they do not need women around here since they call in sick too much due to their monthly cycle," "females cannot manage accounts as well as males," "females are out of control and cranky when they get their period," and "females are lazy and incompetent." She also alleged that her male co-workers, two of them in particular, would discuss the details of their "sexual conquests" in the open office. Plaintiff alleged that the same male employees, along with another of the male account representatives, used particularly vulgar language to describe female genitalia and sexual situations.

According to plaintiff's answers to interrogatories, Eckhardt was present during these inappropriate conversations. Although plaintiff conceded that Eckhardt did not actively participate in the vulgar commentary, she alleged that he did nothing to stop it. Plaintiff claimed that she heard the vulgar language from her co-workers about "every two to three weeks." However, she admitted in her deposition that the comments were never made directly to her, nor were they made inferentially about her.

E.

In the latter part of December 2005, plaintiff resumed her internship at CSP, keeping the same hours there on Tuesdays and Thursdays as she had done in the fall.

In early 2006, Eckhardt began to notice that he was receiving e-mails from plaintiff that were time-stamped at 7:00 or 7:30 a.m., but that when he got to the office at 8:00 a.m. she was not there and she would not return until late in the afternoon. He began to see a decline in plaintiff's sales activity, noting that she was not consistently bringing in as much new business as she had before.

Eckhardt confronted plaintiff with his observations in an informal meeting in February 2006. She responded that she was simply having "a string of bad luck," but assured Eckhardt that she was "pounding the pavement, still knocking on doors[.]"

As of a month later, the trend in plaintiff's sales had not improved. Knowing that plaintiff was attending college, Eckhardt suspected that she was doing school work during office hours. To confirm his suspicions, on March 21, 2006, Eckhardt surreptitiously followed plaintiff from DSL's South Plainfield office to CSP's Freehold location.

Eckhardt was on the phone with a colleague from the South Plainfield office when he saw plaintiff go into the CSP facility. He asked the colleague to do an internet search to determine what type of business CSP was. When the colleague informed Eckhardt that CSP was a mental health rehabilitation center, Eckhardt presumed that plaintiff "was going there for her own personal reasons[.]"

Eckhardt initially decided that he "wasn't going to bring it [her daytime presence at CSP] up" with plaintiff. He recalled being open to discussing plaintiff's mental health needs "[i]f it was something she wanted to bring up. . . . If not, it was an area [he] didn't even really want to touch, so [he] let it go[.]"

Plaintiff's internship timesheet for the date that Eckhardt had followed her, March 21, 2006, reflects that she was on site at CSP's facility from 9:00 a.m. until 2:00 p.m. Nevertheless, plaintiff entered into the COMET program at DSL that she had visited six clients from Middlesex County for an half-hour each during that very same time period.

Three days later, on March 24, 2006, plaintiff and Eckhardt completed her performance evaluation for calendar year 2005. In that performance review, plaintiff again received a very favorable rating.

F.

At some time between her March 2006 performance review and her eventual termination in July 2006, plaintiff claims that she overheard a conversation between Eckhardt and three of the male account representatives. In that alleged conversation, plaintiff reportedly heard Eckhardt say that she "was all washed up and [that she] was an old bag." In that same conversation, one of the other men allegedly made derogatory comments about the female salesperson who had resigned, complaining that "she always took her sick days" and "if she had her [menstrual] period, [she believed that] she should take a sick day."

Two or three months later, according to his deposition testimony, Eckhardt overheard plaintiff telling her daughter over the phone that she only had six more months of volunteer work remaining. This prompted Eckhardt to contact Phillip Deeds, DHL's senior human resources generalist, and request him to undertake an investigation. Deeds agreed to do so.

Consequently, Deeds, Eckhardt, and plaintiff met in Eckhardt's office on July 5, 2006. When confronted with the evidence of her false COMET entries for March 21, the day that Eckhardt followed her, plaintiff reportedly responded that she "didn't recall going to the facility in Freehold on that day," and, "[while] in [Deeds'] presence[, she] did not admit to any other occasions." Plaintiff also was confronted with the fact that her customer contacts listed on COMET vastly outnumbered her actual sales numbers. Plaintiff replied that she was sorry about the improperly-completed COMET entries, and told Deeds that she didn't realize that she had done anything wrong.

After Deeds left to return to DSL's corporate offices, Eckhardt called plaintiff back in to his office to express his disappointment in her. According to Eckhardt, she ultimately confessed that she had been attending the internship at CSP for several months, but she had not revealed that before because "she was afraid of getting fired."

Upon consulting with John Hovanian, DHL's Regional Vice President of Human Resources, and Dave Katz, DHL's Regional Vice President of Sales, Deeds terminated plaintiff's employment. Plaintiff was informed of her termination on July 10, 2006.

II.

Plaintiff filed her complaint in the Law Division in April 2007, and named DHL and Eckhardt as defendants. Her five-count complaint alleged that: (1) Eckhardt and plaintiff's co-workers engaged in discriminatory conduct towards her on account of her gender, resulting in a hostile work environment under the LAD that DHL should have known about; (2) defendants wrongfully terminated her employment as a result of her gender; (3) Eckhardt and plaintiff's co-workers engaged in discriminatory conduct toward her on account of her age, resulting in a hostile work environment under the LAD that DHL should have known about; (4) defendants wrongfully terminated her employment as a result of her age; and (5) defendants' actions were so outrageous as to constitute the tort of intentional infliction of emotional distress.

Defendants denied violating the LAD or engaging in any wrongful conduct. They also asserted counterclaims against plaintiff for breach of the duty of loyalty, damages caused by a faithless servant, unjust enrichment, and fraud.

After the close of discovery, defendants moved for summary judgment on all of plaintiff's claims. In particular, defendants urged the trial court to find, as a matter of law under the LAD, that plaintiff had not made out a prima facie case of a discriminatory wrongful discharge or of a hostile work environment. In response to defendants' motion papers, plaintiff filed a certification with assertions about her internship and other matters, which materially differed from her earlier testimony at depositions. Defendants decried the certification as a "sham affidavit," as set forth by the Supreme Court in Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002), and requested that the trial court disregard it.

Following oral argument, the motion judge determined that plaintiff's certification flatly contradicted her earlier deposition testimony. Applying the sham affidavit doctrine, the motion judge therefore disregarded plaintiff's certification, and decided the motion on the basis of the remaining evidence before her.

Upon assessing the competent proofs, the motion judge granted summary judgment for defendants on all claims. In her bench opinion, the judge concluded that plaintiff had not furnished sufficient evidence to sustain a prima facie case of discrimination or of a hostile work environment. In addition, the judge found that the non-discriminatory reasons advanced by defendants for terminating plaintiff's employment were legitimate and not pretextual. The judge also ruled that plaintiff had not proven that defendants' actions were sufficiently outrageous to sustain her claim for intentional infliction of emotional distress.

III.

On appeal, plaintiff argues that the trial court erred: (1) in granting summary judgment to defendants; (2) in rejecting her claims that defendants had created a hostile work environment offensive to a person her age and gender; (3) in treating her certification as a sham affidavit; (4) in finding that defendant's reasons for termination were not pretextual; and (5) in finding that material issues of fact were not in dispute.

As noted, we concur with the motion judge's ultimate determinations, except with respect to her dismissal of plaintiff's claim of a gender-based hostile work environment. Our analysis follows.

A.

The LAD proscribes discrimination in employment based upon, among other things, gender and age. N.J.S.A. 10:5-12(a). The protection of the statute extends to persons who have been wrongfully terminated from their jobs because of their gender or their age. See Peper v. Princeton Univ. Bd. of Trustees, 77 N.J 55, 81-84 (1978) (gender), Bergen Comm. Bank v. Sisler, 157 N.J. 188, 204-05 (1999) (age).

The methodology applied by our courts to claims of employment discrimination under the LAD mirrors the "burden-shifting" test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for employment discrimination cases brought under federal law. See Myers v. AT&T, 380 N.J. Super. 443, 452-53 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). The McDonnell Douglas test requires:

(1) proof by plaintiff of the prima facie elements of discrimination; (2) production by the employer of a legitimate, non-discriminatory reason for the adverse employment action; and (3) demonstration by plaintiff that the reason so articulated is not the true reason for the adverse employment action, but is instead a pretext for discrimination.

 

[Myers, supra, 380 N.J. Super. at 452 (citing McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677).]

 

To advance a prima facie case of discriminatory wrongful discharge under the LAD, a plaintiff must show that she was in a protected class, that she was performing her job at a level that met the employer's legitimate expectations, that she was nevertheless discharged, and that her employer sought someone else to perform the same work after she left. DeWees v. RCN Corp., 380 N.J. Super. 511, 523 (App. Div. 2005).

Viewing the record in a light most favorable to plaintiff, we conclude that the proofs can be reasonably construed to fulfill each of these elements of a prima facie case. Plaintiff was in a protected class as an older female employee, was generally meeting her employer's expectations, was discharged, and defendants do not appear to contest that DHL sought to replace her.

The remaining aspects of the burden-shifting analysis, however, clearly support the motion judge's dismissal of plaintiff's wrongful termination claims.

When a plaintiff advances a prima facie case under the McDonnell-Douglas construct, the burden of production, but not the ultimate burden of persuasion, is placed on the defendants. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000); Barbera v. DiMartino, 305 N.J. Super. 617, 634 (App. Div. 1997), certif. denied, 153 N.J. 213 (1998); see also N.J.R.E. 101(b)(1) and (2) (defining "burden of persuasion" and "burden of producing evidence"). To satisfy this burden, the defendants must identify a legitimate, non-discriminatory reason for the plaintiff's termination. Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 382 (1988).

Here, defendants presented to the court compelling testimonial and documentary proof that plaintiff was discharged by DHL for theft of company time and for falsification of company documents. The e-mail from Deeds to the DHL regional and divisional executives contemporaneously outlines and substantiates those reasons for plaintiff's dismissal.

Eckhardt's unrefuted testimony establishes that he observed plaintiff going to her internship in Freehold on March 21, 2006 at 9:00 a.m., a time when she was supposed to be making in-person sales calls on current and potential DHL clients in Middlesex County. His observation was corroborated by plaintiff's internship timesheets, which show that she was on site at CSP on March 21, 2006 from 9:00 a.m. until 2:00 p.m.

The record further shows that plaintiff's presence at CSP during the work day was not a one-time aberration, but rather occurred repeatedly throughout the fall of 2005 and until the spring of 2006. DHL, as plaintiff's employer, had a legitimate reason to prohibit such substantial diversions from plaintiff's work effort during regular business hours. Plaintiff's daytime labors at CSP, although not compensated, violated company policies that restrict outside work, as set forth in the Handbook and in the agreements that plaintiff signed when she was hired by DHL.

When asked about these matters at her deposition on May 9, 2008, plaintiff specifically denied that DHL had authorized her internship at CSP during work hours. With respect to her supervisor at the time of her discharge, Eckhardt, plaintiff was asked:

Q. Did you ever talk to him [Eckhardt]

about your internship with CSP?

 

A. No.

 

Plaintiff added the following to her response:

I talked about school to Mike [Massagli, the prior District Sales Manager,] because Mike was leaving early to go to classes and we talked about -- and I applied, as you'll see the paper records here, for DHL tuition reimbursement. They knew I was going to school and the internship was on there. But I got denied [for reimbursement] because it wasn't business administration.

 

[Emphasis added.]

 

During the same portion of her deposition, plaintiff was asked an even broader question, one not limited to Eckhardt's knowledge:

Q. Did you ever tell anyone in management

at DHL that you were serving part of

your internship during DHL work hours?

 

A. No.

 

[Emphasis added.]

 

When asked in the very next question why she had failed to do so, plaintiff did not express any misunderstanding of the prior question or attempt to recant her response. Instead, she asserted her belief that her internship activity during work hours was not important to DHL and therefore did not have to be disclosed.

Q. Why not [tell anyone in management about serving part of your internship during work hours]?

 

A. I didn't think it was important as long as I met my sales quotas. That's all they cared about.

Plaintiff's counsel apparently did not attempt to clarify or correct these sworn responses by questioning plaintiff at the end of her deposition.

Seven months after her deposition, plaintiff attended Eckhardt's deposition on December 19, 2008. During his deposition, Eckhardt acknowledged that plaintiff had informed him that she was attending school but that "[w]hat she mentioned was night school, taking classes at night." He specifically denied any conversation with her regarding an internship taking place during the work day.

Plaintiff's first answers to interrogatories, which were dated January 28, 2008, made no mention of any conversation between her and Eckhardt about her internship. Plaintiff supplemented these answers on April 29, 2008, and made no mention of any conversations between her and Eckhardt regarding her internship. On May 13, 2008, after her own deposition, plaintiff again amended her interrogatory answers, and again made no mention of any conversation between her and Eckhardt regarding her internship.

Finally, on January 28, 2009, after Eckhardt's deposition, plaintiff provided yet another amendment to her interrogatory answers. This final amendment inserted allegations about Eckhardt's actions in following her to her internship in Freehold in March 2006 and about the e-mail to DHL's Human Resources office in July 2006. In that final amendment to her interrogatory responses, plaintiff still made no mention of her present contention that Eckhardt knew about and had approved of her internship taking place during work hours.

After discovery closed and defendants moved for summary judgment, plaintiff filed an opposing certification dated August 20, 2009. Paragraphs 4 and 5 of that certification state:

4. In approximately February 2006, I specifically told my sales manager, [d]efendant Eckhardt that I was attending a school related unpaid internship involving the weekdays hours [sic] of [four] hours per day, for [two] days weekdays [sic] per week.

 

5. In reply, [d]efendant Eckhardt specifically told me that such was fine, and was permitted, so long as I continued to put in my ordinary 60-70 hour workweek, made my scheduled sales calls, kept my sales numbers up, and made up any missed time due to the internship.

 

Defendants argued to the trial court that these post-discovery assertions in plaintiff's motion certification should be disregarded. In support of their argument, defendants invoked the "sham affidavit doctrine."

The sham affidavit doctrine concerns a situation, such as the present case, where a party tenders, in an effort to defeat a summary judgment motion by an adversary, an affidavit or certification that is not consistent with the party's prior sworn discovery responses. The doctrine "requires a court to evaluate whether a true issue of material fact remains in the case notwithstanding an affiant's earlier deposition testimony" Shelcusky, supra, 172 N.J. at 201.

By rejecting a sham affidavit, the court preserves the integrity of the civil justice system and the discovery process, and discourages belated or perjured efforts to reconstruct the factual record after a dispositive motion has been filed. However, a trial court "should not reject alleged sham affidavits where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement." Id. at 201-02.

The Supreme Court has instructed that the application of doctrine is "squarely within the trial court's authority at the summary judgment stage[.]" Id. at 201. We recently upheld the application of the doctrine in Hinton v. Meyers, 416 N.J. Super. 141, 150 (App. Div. 2010), a case in which the plaintiff's certification was rejected as a sham affidavit where the plaintiff's certification "made no attempt to explain the sharply different version of the events."

Plaintiff's counsel argued before the motion judge that "after sitting in at Mr. Eckhar[d]t's deposition and hearing his testimony that . . . he was aware for months that she was going to school, she remembered something that she didn't remember at the time of the deposition." At no point in plaintiff's certification did she proffer such an explanation. It was raised by plaintiff's counsel for the first time at oral argument before the trial court on the summary judgment motion.

The motion judge concluded that paragraphs 4 and 5 of plaintiff's opposing certification should be disregarded under the sham affidavit doctrine. As the judge noted in her bench ruling, "plaintiff's [c]ertification does not simply clarify or expand previous statements made during litigation. Instead it sharply and completely contradicts plaintiff's prior statements."

We concur with the motion judge's application of the sham affidavit doctrine in this case. Plaintiff's motion certification directly and flatly contradicts her earlier deposition testimony, in which she denied ever telling Eckhardt about the internship and in which she denied informing anyone else in DHL's management that she would be spending work hours at an internship site. Even after hearing Eckhardt's deposition testimony on these subjects, and amending her interrogatory answers several times, plaintiff did not attempt to change her sworn denials about management's lack of awareness until defendants moved for summary judgment. By that point, the discovery period was over, and defendants had a right to rely on the discovery that had been exchanged.

Further, the likelihood that the belatedly-described conversation between plaintiff and Eckhardt ever took place is further diminished by plaintiff's actions when confronted by Eckhardt and Deeds in July 2006. As detailed in Deeds' July 5, 2006 e-mail to management at DHL, plaintiff "didn't recall going to the facility in Freehold on [March 21, 2006], and [while] in [Deeds'] presence[, plaintiff] did not admit to any other occasions." Also, according to the same e-mail, it was only after Deeds left that plaintiff finally admitted to Eckhardt that she had been going two days a week to Freehold for her internship. When Eckhardt "asked her why she hadn't revealed that before[, s]he said that she was afraid of getting fired."

If, as plaintiff now contends, she had already received approval from Eckhardt in February 2006 to attend the internship during work hours, she logically would have and should have told Deeds about that prior approval at the July 2006 meeting. Presumably, when she was asked about it by Deeds, she also would have had no reason to deny that she was present at CSP on the day that Eckhardt had followed her there.

For these many reasons, we affirm the trial court's sound application of the sham affidavit doctrine, its rejection of paragraphs 4 and 5 of plaintiff's certification, and its finding that DHL had a legitimate business reason to discharge plaintiff because of her unauthorized use of work time to pursue her internship.

The legitimacy of DHL's grounds for terminating plaintiff is also fortified by her misconduct in making false timekeeping entries. Plaintiff's timekeeping record for March 21, 2006 shows that she falsely represented that she made in-person sales contacts with six identified customers on that date between 9:00 a.m. and 2:00 p.m., when, in actuality, she was at CSP in Freehold for her internship. These false entries are inimical to the employer's legitimate business interests in tracking the efforts of its sales representatives and their interactions with its customers. The false entries are also indicative of an employee's dishonesty and unreliability. DHL had a legitimate business reason to terminate such an employee.

Plaintiff, in defending her actions, contends that it was customary and authorized for the sales force to make certain false entries into the timekeeping system. She also contends that the system was not used by the company with any precision or for valid supervisory purposes. However, her contentions in that regard are not corroborated by any other witness who served in DHL's management. Moreover, it is hard to fathom why an employer would install a timekeeping system, and require its sales representatives to go through the effort of logging their daily activities on that system, if the information reported was going to be ignored. In any event, even if the court were to accept plaintiff's assertions about the supposed irrelevancy of her timekeeping entries, her repeated misuse of company time while at the CSP internship provided DHL with an ample and independent business reason to terminate her.

Once an employer establishes, as DHL has done here, a legitimate business reason for terminating an employee who is in a protected class, the employee has the burden of overcoming that justification by demonstrating that the employer's asserted reason was only a pretext, and that the true motivation for the employer's actions was discrimination. Reeves, supra, 530 U.S. at 146-47, 120 S. Ct. at 2108-09, 147 L. Ed. 2d at 119-20; see also Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005). "To prove pretext, a plaintiff may not simply show that the employer's reason was fake but must also demonstrate that the employer was motivated by discriminatory intent." Zive, supra, 182 N.J. at 449.

In attempting to establish that defendants' reasons for her discharge were merely pretextual, plaintiff points to the fact that, at the time of her discharge, she was the only person of her age and gender employed as a account representative in DHL's South Plainfield office. She also points to the alleged conversation that she overheard sometime between her favorable evaluation in March 2006 and her termination in July 2006, in which Eckhardt supposedly described plaintiff as "all washed up" and "an old bag."

Plaintiff further asserts that the men in the office shunned her at social events because of her age and because she did not know a lot about sports. However, in her deposition testimony, plaintiff admitted that she was invited to, and that she did attend, a number of the lunches and parties that were organized by the men in the office. Additionally, plaintiff acknowledged that she had invited the men in the office to an establishment where her daughter was bartending, and that they did indeed come out to that bar.

In rejecting plaintiff's assertions of pretext, the motion judge correctly noted that Eckhardt was not the decision-maker in plaintiff's termination. Hence, the judge reasonably found that Eckhardt's alleged comment was insufficient to defeat the legitimate and substantial non-discriminatory grounds for plaintiff's discharge that were relied upon by the actual decision-maker, Deeds. Deeds was relatively unknown to plaintiff; in fact, plaintiff admitted in her deposition testimony that she had no reason to believe that Deeds harbored any discriminatory intent toward her on the basis of her age or gender. Nor were plaintiff's male co-workers, who allegedly made sexist remarks, decision-makers. The co-workers' alleged "shunning" of plaintiff, even if it occurred, does not make the employer's valid reasons for her discharge pretextual.

For these considerable reasons, we affirm the judgment of the trial court in granting summary judgment to defendants on counts two and four of plaintiff's complaint alleging that defendants wrongfully terminated her because of her age or gender.

B.

We turn to plaintiff's claims of hostile work environment under the LAD, respectively based upon her gender and age. As the Supreme Court in Shepherd v. Hunterdon Developmental Center, 174 N.J. 1, 24 (2002), explained:

To establish a cause of action under the LAD based on a hostile work environment, plaintiffs must satisfy each part of a four-part test. Specifically, they must show 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 a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive.

 

[citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993).]

 

The Court in Shepherd further explained the interplay of these elements:

Within th[is] framework, a court cannot determine what is "severe or pervasive" conduct without considering whether a reasonable person would believe that the conditions of employment have been altered and that the working environment is hostile. Thus, the second, third, and fourth prongs are, to some degree, interdependent.

 

[Ibid. (internal citations omitted).]

 

"[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Lehmann, supra, 132 N.J. at 607 (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)). See also Cutler v. Dorn, 196 N.J. 419, 431-432 (2008), (applying these same principles to a hostile work environment claim involving religious affiliation).

A court must review a hostile work environment claim in light of the totality of circumstances. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005). The inquiry is whether a reasonable person of plaintiff's protected class, here an older female, would consider the alleged discriminatory conduct "to be sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment." Ibid. (quoting Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999)). The pertinent factors to be considered include "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, supra, 174 N.J. at 19-20 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106, 124 (2002)). See also Cutler, supra, 196 N.J. at 430-32.

Applying these well-established standards to the instant case, we are satisfied that the motion judge correctly granted summary judgment dismissing count three of the complaint, which alleged a hostile work environment based upon plaintiff's age. The record is bereft of any proof of age-based harassment or hostility, other than Eckhardt's supposed comment to other employees about plaintiff in the spring of 2006. Although we recognize that, in extreme circumstances, a single discriminatory comment can create a "severe and pervasive" hostile work environment, that is the exception rather than the rule. See Taylor v. Metzger, 152 N.J. 490, 506-08 (involving a racial slur uttered by the county sheriff directly to the plaintiff, a county sheriff's officer, in the presence of the undersheriff). Cf. Cutler, supra, 196 N.J. at 433-36 (involving a Jewish police officer who repeatedly endured denigrating and anti-Semitic comments made by his supervisors specifically in his presence). We agree with the motion judge that the isolated comment about plaintiff's age that was attributed to Eckhardt does not suffice to sustain her claim of an age-based hostile work environment.

C.

We reach a different conclusion, however, with respect to plaintiff's claims of a gender-based hostile work environment. The record is replete with instances in which plaintiff allegedly was subjected to her male co-workers openly boasting of their sexual conquests, ridiculing the female salesperson's menstrual cycle, and deploying a veritable thesaurus of euphemisms for female genitalia and sexual activity. We need not repeat those offensive words in this opinion. Some of those comments were allegedly made in the presence of supervisors, yet no corrective action was taken. A jury could reasonably find that, if those comments were made, they were sufficiently severe and pervasive to create a gender-based hostile work environment under the LAD, consistent with the standards articulated in Lehmann, Taylor, Cutler, and other applicable case law. Consequently, we reverse the trial court's grant of summary judgment on count one of the complaint, and reinstate it for trial.

D.

Next, we briefly address plaintiff's common law claim of the intentional infliction of emotional distress. To establish that tort, the intentional conduct in question must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Buckley v. Trenton Savings Fund Soc'y, 111 N.J. 355, 366 (1988) (quoting Restatement (Second) of Torts 46 (1965)). Although, for the reasons we have stated, the gender-based remarks by plaintiff's co-workers can support a statutory claim of a hostile workplace environment under the LAD, they are not so extreme or indecent as to amount to an intentional tort by DHL or Eckhardt. We therefore affirm the dismissal of this common law claim in count five.

 

 

E.

We have fully considered all of the remaining arguments for reversal advanced by plaintiff on appeal, and, with the exception of our reinstatement of count one, find that her arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded for trial solely on count one.3

 

1 Defendants pointed out that plaintiff's resume and job application differed in certain respects as to the dates and the extent of her prior work experience, but those discrepancies do not affect our analysis of the issues on appeal.

2 This is contradicted by the deposition testimony of another DHL account representative from the Elizabeth office. He testified that account representatives who had entered false appointment entries into COMET had been disciplined. He further noted that making such false entries was "[n]ever a practice of [his] because you can easily check those things."

3 Any application by plaintiff for appellate counsel fees and costs shall be considered in the first instance by the trial court, in tandem with any application that plaintiff may make at the conclusion of the matter for counsel fees and costs incurred at the trial level. R. 2:11-4.