THOMAS BROVICH v. HUDSON NEWS GROUP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3263-08T13263-08T1

THOMAS BROVICH a/k/a

ROBERT BROVICH,

Plaintiff-Appellant,

v.

HUDSON NEWS GROUP, STOP N'

SHOP, HOWARD SPATZ and ROSS

FALISI,

Defendants-Respondents.

___________________________________________________

 

Submitted December 16, 2009 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4257-07.

Richard S. Mazawey, attorney for appellant.

Proskauer Rose, attorneys for respondents (Michael J. Lebowich of the New York bar, admitted pro hac vice, and Jeremy M. Brown, on the brief).

PER CURIAM

In this appeal, we consider the argument of plaintiff Thomas Brovich (plaintiff) that the trial judge erred in dismissing plaintiff's hostile work environment claim against defendant Hudson News Group (the employer), as well as his tortious interference with a contractual relationship claim against defendant Stop & Shop. We agree with the trial judge that plaintiff's claims were not maintainable and, therefore, we affirm.

Plaintiff was a magazine delivery driver who was terminated by the employer on July 5, 2005, for theft of company property he was encharged with delivering to Stop & Shop in Wilton, Connecticut. Pursuant to a collective bargaining agreement, plaintiff filed a grievance regarding his termination. An arbitrator considered the evidence and found the employer "met its high burden of proving [plaintiff's] culpability." The arbitrator reached what she described as "the inescapable conclusion that [plaintiff] was responsible for the shortage or misappropriation" of magazines he was required to deliver to Stop & Shop.

Plaintiff filed a complaint in the Law Division on August 24, 2007, alleging wrongful discharge, breach of contract, breach of the implied covenant of good faith and fair dealing, a hostile work environment, tortious interference with a contractual relationship, violation of the New Jersey Civil Rico Act, N.J.S.A. 2C:41-1 to -6.2, and two unlabeled counts that would appear to allege an intentional infliction of emotional distress. The employer was served with process a few months later and promptly removed the action to the United States District Court for the District of New Jersey, pursuant to 28 U.S.C.A. 1446.

While the matter was pending in federal court, defendants moved for dismissal. Plaintiff responded by filing an amended complaint, which eliminated the wrongful discharge and breach of contract claims. The parties then consented to a remand of the action to state court and defendants thereafter moved for dismissal. In dismissing the amended complaint, Judge Mary K. Costello largely relied on the statute of limitations and the fact that the original complaint was filed two years and fifty days after plaintiff's termination.

Plaintiff appealed, presenting the following two arguments for our consideration:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING THE LAD COUNT, WITH PREJUDICE, AS THE STATUTE OF LIMITATIONS HAD NOT RUN AT THE TIME OF THE FILING OF THE COMPLAINT AND THE TRIAL COURT MISAPPLIED THE DISCOVERY RULE FOR THE STATUTE OF LIMITATIONS.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING THE TORTIOUS INTER-FERENCE CLAIM BASED ON COLLATERAL ESTOPPEL AS MULTIPLE EXCEPTIONS TO COLLATERAL ESTOP-PEL SHOULD HAVE BEEN APPLIED BY THE TRIAL COURT.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). In affirming the dismissal based on Rule 4:6-2, we add only the following brief comments.

In considering plaintiff's first point, we initially observe that he has not been very specific about his "hostile work environment" claim. Neither the complaint nor the amended complaint provided any amplification of what in plaintiff's view made the workplace hostile except for the allegations that the "work environment . . . was filled with racial and ethnic slurs," and that defendants "created an environment which discouraged and threatened action against those involved in union organization activity." In his appeal brief, plaintiff additionally asserted that he was discriminated against because of "his union activity, experience and age." The trial judge relied upon the statute of limitations in dismissing this LAD claim.

A hostile work environment claim under the LAD consists of four elements:

(1) the conduct complained of would not have occurred but for the employee's protected trait . . .; (2) the conduct was severe or pervasive enough to make a (3) reasonable person of the same protected trait believe that (4) the conditions of employment and the working environment has become hostile or abusive.

[Flizack v. Good News Home for Women, Inc., 346 N.J. Super. 150, 158-59 (App. Div. 2001) (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)).]

Here, in seeking relief from the two-year statute of limitations applicable to his LAD claim, Montells v. Haynes, 133 N.J. 282, 292 (1993), plaintiff argues that he did not recognize the link between his alleged psychological injuries and the work environment until he visited a doctor in September 2005. Judge Costello found no merit in this contention, determining instead that:

If he's unaware that his work environment was hostile . . . while he was working there, then it clearly couldn't have been severe and pervasive enough to rise to the level of harassment.

If it was severe and pervasive enough then a reasonable person would have known [or] at least should have known that his claim had accrued. [Applying] that logic[,] the argument that the statute of limitations should be tolled until September 2005 is rejected. . . .

We agree and affirm the dismissal of the LAD count substantially for the reasons cogently expressed by Judge Costello in her oral decision, only part of which we have reproduced.

In his second point on appeal, plaintiff argues the trial judge erred in applying the doctrine of collateral estoppel to bar his claim against Stop & Shop for tortious interference with his contractual relationship with the employer. Again, we find no merit in that argument.

We agree with Judge Costello that because the arbitrator found as a fact that plaintiff committed an act of theft, plaintiff's tortious interference claim could not be maintained. To sustain such a cause of action, a suitor is required to prove: a protected interest; defendant's malice, i.e., intentional interference without justification; a reasonable likelihood that defendant's interference caused the loss of the prospective gain; and resulting damages. MacDougall v. Weichert, 144 N.J. 380, 404 (1996); Dimaria Const., Inc. v. Interarch, 351 N.J. Super. 558, 567 (App. Div. 2001). Here, plaintiff could not demonstrate the malice element because the arbitrator, in adjudicating plaintiff's grievance, factually determined that plaintiff had stolen magazines intended for Stop & Shop. Accordingly, Stop & Shop's complaint to the employer, which brought about plaintiff's termination, was factually accurate and, therefore, made with justification. MacDougall, supra, 144 N.J. at 404.

 
For these reasons, the order under review is affirmed.

The name of this defendant is spelled a number of different ways in the record. We will refer to it hereafter as "Stop & Shop."

Although not cited in the complaint or the later amended complaint, we assume from the reference in plaintiff's pleadings to an alleged "hostile work environment," that plaintiff's hostile work environment claim was based upon the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.

In reviewing a dismissal based on Rule 4:6-2, we are bound by the same standard that governed the trial judge; that is, we are obligated to accept the allegations of the complaint as true and afford plaintiff all reasonable factual inferences. See Indep. Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956).

In light of our disposition of the appeal, we need not consider defendants' arguments that: (1) Stop & Shop and the individual defendants were not properly served with process; (2) the tortious interference claim is preempted by 29 U.S.C.A. 105; and (3) the tortious interference claim is barred by the statute of limitations.

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A-3263-08T1

January 12, 2010