ADAM SHAIN v. HEL LIMITED

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5157-10T3



ADAM SHAIN,

     Plaintiff-Appellant,

v.

HEL LIMITED, HEL, INC.,
JASBIR SINGH, Individually,
RUSSELL G. LEE, Individually,
and REBECCA SWEENEY, Individually,

     Defendants-Respondents.

___________________________________

         Argued February 14, 2012 - Decided    March 2, 2012

         Before Judges Parrillo, Skillman and
         Hoffman.

         On appeal from Superior Court of New Jersey,
         Law Division, Mercer County, Docket No.
         L-2849-08.

         Kevin G. Boris argued the cause for
         appellant (Shain, Schaffer & Rafanello,
         attorneys; Richard A. Rafanello, of counsel;
         Mr. Boris, on the briefs).

         Ravi Sattiraju argued the cause for
         respondents (The Sattiraju Law Firm,
         attorneys; Mr. Sattiraju, of counsel and on
         the brief).
PER CURIAM

    This is an appeal from a summary judgment dismissing

plaintiff's hostile work environment claim under the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -38, and related breach

of contract claim.

    Plaintiff was employed by defendant HEL, Inc. as a

salesman.    Defendant Dr. Jasbir Singh, who was based in the

United Kingdom, was the Managing Director of HEL.    Defendant

Rebecca Sweeney was the General Manager of HEL, and reported

directly to Singh; as part of her supervisory role, Sweeney

oversaw employees' use of the company expense account.

Defendant Russell Lee was the Director of Sales at HEL.

Plaintiff's LAD claim is based on a series of emails exchanged

between Sweeney, Lee, plaintiff, and Singh in June 2008, which

are described immediately below.     Plaintiff's breach of contract

claim is based on documents relating to plaintiff's

compensation, which are discussed later in this opinion.

    On June 7, 2008, Singh and Sweeney exchanged emails in

which Sweeney expressed concern that plaintiff was abusing his

access to the company expense account.     In her email, Sweeney

stated:

             . . . Adam is by far the biggest challenge.
            He has little or no regard for anybody other
            than himself. He constantly interrupts and
            wants or demands immediate action no matter



                                 2                          A-5157-10T3
         what. He inserts himself in every single
         thing -- even personal conversations AND he
         always pushes the expense thing to the max.
         He has never once had a dinner under $50,
         has never stayed in a "moderate" hotel and
         on and on!!! He always "finds" reasons to
         justify this and it is always a fight --
         because he NEVER relents until I just say
         NO!

    Throughout the day of June 25, 2008, Sweeney and Lee

exchanged emails regarding plaintiff's performance at HEL.    In

one of her emails to Lee, Sweeney remarked:

         Can I just say something I shouldn't to you
         here — he is SUCH A JEW! In a BAD way. He's
         what gives Jews a bad name.
         He's smarter
         He's better
         He's owed
         He will do anything to keep from opening his
         wallet — right down to not eating!!!! And I
         am DEAD serious here!!! That's why he
         expenses every single thing he can because
         he won't pay anything!
         I have not seen him bring one single thing
         into this office in all the time he's been
         here — period. (that he paid for)
         IF he does bring something in he expenses it
         . . .

         Not like EVERY SINGLE OTHER PERSON

         I could go on and on and on…………………

         Even [Singh] said that 99% of the issues we
         have had with him really stem from money —
         and he wondered what could have caused him
         to be that way???

         I COULDN'T say to him what I just did to you
         — that HE is what gives Jews a bad name!!!




                               3                           A-5157-10T3
    Although plaintiff was not a recipient of this email, he

accessed the email through a company database while attempting

to view Lee's calendar, which was available to HEL employees.

Plaintiff testified at his deposition that he probably did not

have authority to read other employees' business-related emails.

    After reading this email, plaintiff forwarded it to Singh

in the United Kingdom.     Plaintiff demanded Sweeney's termination

and cited sections of the employee handbook which prohibit

discriminatory behavior.    The next day, June 26, 2008, Singh

responded:

         For sure the comments are not sensible and I
         too want to deal with it properly. I passed
         the email for advice to an organi[z]ation in
         England which deals with racist matters and
         especially Jewish or anti-[Semitic]
         problems.

         The advise [sic] I got was that the comments
         are not anti-[Semitic]; primarily because
         she at no time generali[z]ed about Jewish
         people nor does she imply that Jewish people
         behave in this way. The comments reflect
         ignorance and some lack of thought, rather
         than racism. Frankly the view was that it
         was a foolish and rather thoughtless thing
         to write bearing in mind the sensitivity of
         such issues these days.

         I will be guided by these comments and just
         wanted to let you know that I have taken
         your request seriously. Also, it is my
         intention to take some further action and
         you will become aware of that in due course,
         hopefully soon.




                                  4                         A-5157-10T3
    That same day, Singh spoke by telephone with both plaintiff

and Sweeney.    Singh apologized to plaintiff on behalf of the

company for the incident and told him it "shouldn't have

occurred."   However, Singh also told plaintiff that in view of

Sweeney's previous good record with the company, he had decided

not to terminate her.     In his telephone call to Sweeney, Singh

informally reprimanded her for the offensive language in her

email to Lee.

    Later that day, Sweeney apologized to plaintiff for the

comments made in her email.    Plaintiff responded by a letter

which refused to accept Sweeney's apology.     This letter

concluded by stating:

              With this letter, I consider this a
         closed matter. I do not expect nor want any
         sort of rebuttal. You do your job. I will
         do mine.

              Obviously, I do not agree with how HEL
         handled this matter. You should have been
         terminated or at least suspended and
         directed to a sensitivity training course.

              Finally, my focus now, as it was before
         and always will be, is to give HEL 110% of
         my effort to increase sales to our maximum
         potential. HEL has had a strong history and
         if I have anything to do about it, will have
         a strong and lucrative future.

    On June 30, 2008, Singh sent Sweeney a formal letter of

reprimand which stated:




                                  5                          A-5157-10T3
           After reviewing the allegations of Adam
           [Shain], following your private email to
           Russ Lee, I feel that it is necessary to
           remind you verbally, and in writing, that
           HEL does not condone, nor will tolerate, any
           comments that can be construed as negative
           towards any person based on religious
           beliefs or ethnic background. Any such
           comments are grounds for disciplinary
           procedures up to and including termination.

           Regarding the specific email incident, I
           have sought external (independent) advice by
           which I am guided. Also I have considered
           the fact that you have willingly offered
           your apology to Adam. In addition, I have
           taken into consideration your past record
           which to the best of my knowledge had been
           exemplary and I do believe you when you say
           that it was not your intention to be racist.
           As a consequence, I feel it would be
           inappropriate to terminate your employment
           though I have to stress that there will be
           no further warnings.

           I have noticed no change in Adam's behavior
           and nor has Russ -- I therefore assume that
           he too has put the incident behind him and
           is getting on with his job. This is
           important as it is not easy to manage a
           small office if people stop communicating.

Although Singh did not send a copy of this letter to plaintiff,

Singh notified plaintiff by telephone that he had reprimanded

Sweeney.

    On September 1, 2008, plaintiff resigned from HEL to take a

higher paying position with another company.   Plaintiff's

resignation letter did not refer to the anti-Semitic comments in

Sweeney's email to Lee, and plaintiff did not testify at his




                                6                            A-5157-10T3
deposition that he resigned from HEL because of the email.

Plaintiff did testify in that deposition that Sweeney's email

contained the only derogatory comments about his being Jewish

made by any HEL representative during the course of his

employment.   Plaintiff also testified that he felt he had "a

good relationship with Dr. Singh" throughout his employment and

"was comfortable approaching him."   Following plaintiff's

resignation, Singh sent him an email expressing disappointment

that he had decided to leave HEL "when you are clearly doing so

well."

    Plaintiff subsequently brought this action asserting a

hostile work environment discrimination claim under the LAD and

a breach of contract claim for alleged unpaid commissions

against HEL, Singh, Sweeney and Lee.   Following discovery, in

the course of which plaintiff, Singh, Sweeney and Lee were all

deposed, defendants filed a motion for summary judgment.     The

trial court granted the motion by an oral opinion, which stated

in part:

                It's a one-time incident. I find that
           there was a policy in place to [address]
           that one-time incident. That policy was
           utilized by Mr. Shain. He went to Dr. Singh
           and Dr. Singh took action and the behavior
           ended.

                To say that Dr. Singh by his statement,
           well, I don't think that was anti-Semitic
           and I believe he relied on some outside



                                7                            A-5157-10T3
         organization. Whether they were right or
         wrong, his statement to Mr. Shain, I don't
         think that was anti-Semitic, but it was
         inappropriate. It is offensive. It
         shouldn't have been said. I'm taking steps
         to stop it.

              . . . .

              There was an immediate and effective
         response. It was a single incident.

              . . . .

              . . . Mr. Singh was very attentive to
         remedying this. He didn't sit on it for any
         length of time. He didn't say, well, let's
         see if it happens again. He took steps to
         stop it.

The court also granted summary judgment dismissing plaintiff's

breach of contract claim.


                                  I.


    In a case involving a LAD claim for the alleged maintenance

of a hostile work environment based on religious faith or

ancestry, "the inquiry is whether a reasonable person of

plaintiff's religion or ancestry would consider the workplace

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 v.

Dorn, 
196 N.J. 419, 430 (2008).       "Whether harassing conduct

makes a work environment hostile is assessed by use of a




                                  8                           A-5157-10T3
reasonable person standard."    Id. at 431.    "Making that

assessment requires an examination of the totality of the

circumstances."    Ibid.   Although a hostile work environment

discrimination claim may be established by harassing conduct

that is either "pervasive" or "severe," the establishment of

such a claim generally involves a showing of a "pervasively"

hostile environment created by "the cumulative impact of

separate successive incidents."       Id. at 432.

    This case did not involve such pervasive discriminatory

conduct.   Plaintiff acknowledged at his deposition that he never

heard any derogatory comments about his being Jewish either

before or after the Sweeney email.

    Plaintiff argues that the email Singh sent him in response

to his complaint about the Sweeney email constituted a

"ratification" of Sweeney's discriminatory comments because that

email stated that "an organi[z]ation in England" with which

Singh consulted had advised him that Sweeney's comments "are not

anti-[Semitic], primarily because she at no time generali[z]ed

about Jewish people nor does she imply that Jewish people behave

in this way."     Although this statement indicates that Singh or

the organization he consulted with failed to appreciate that

Sweeney's comments were in fact anti-Semitic, it does not

indicate that Singh ratified or condoned those comments.      To the




                                  9                           A-5157-10T3
contrary, Singh expressed his disapproval of the comments,

characterizing them as "foolish," "thoughtless," and reflecting

"ignorance."    He also advised plaintiff of his "intention to

take . . . further action" and shortly thereafter advised

plaintiff he had reprimanded Sweeney.    Thus, regardless of

Singh's characterization of Sweeney's comments, he expressed

strong disapproval of them to plaintiff and took effective steps

to prevent a recurrence of the conduct about which plaintiff had

complained.    Moreover, Singh testified that he had a "good

relationship" with Sweeney throughout his employment with HEL.

Therefore, the record would not support a finding that Singh

ratified Sweeney's anti-Semitic comments or that plaintiff

thought Singh had condoned those comments.

    The question, therefore, is whether the hostile work

environment created by Sweeney's email was sufficiently

"severe," by itself, to establish a hostile work environment

discrimination claim.    Initially, we note that Sweeney's anti-

Semitic comments were not made to plaintiff's face but rather

behind his back, and that plaintiff only became aware of the

comments because he retrieved an email that Sweeney did not

intend for him to see.    Moreover, the person who made the

comments was not the head of the company but rather one of two

immediate supervisors to whom plaintiff reported.    And that




                                 10                           A-5157-10T3
person, Sweeney, was immediately reprimanded for her comments by

the head of the company, Singh, and then apologized to

plaintiff.

    An isolated discriminatory comment will be found to support

a hostile work environment discrimination claim only in "a rare

and extreme case in which a single incident will be so severe

that it would, from the perspective of a reasonable [person

situated as the claimant], make the working environment

hostile."    Taylor v. Metzger, 
152 N.J. 490, 500 (1998) (quoting

Lehmann v. Toys 'R' Us, Inc., 
132 N.J. 587, 606-07 (1993)).     The

Court concluded that such a claim was stated where a Caucasian

county sheriff referred to an African-American sheriff's officer

as a "Jungle Bunny" in her presence in front of other members of

the sheriff's department and later badgered her for interpreting

his remark as a racial slur and refusing to accept his offer of

a written apology.   Id. at 500-08.   In reaching this conclusion,

the Court relied upon the fact that this highly offensive racial

slur was made by the plaintiff's ultimate supervisor, the county

sheriff, that it was made in the presence of another supervising

officer, that the sheriff criticized the plaintiff for

interpreting the comment as a racial slur and was reluctant to

apologize.   Id. at 501-18.   The Court also noted that when

plaintiff "told her co-workers of defendant's comments, they




                                 11                        A-5157-10T3
laughed, and one apparently mocked her[,]" and "[t]hereafter,

her co-employees acted coolly towards her; she was labeled a

trouble-maker."   Id. at 507-08.

    In less extreme circumstances, our courts have held that

isolated discriminatory comments are insufficient to establish a

hostile work environment discrimination claim.   See, e.g., El-

Sioufi v. St. Peter's Univ., 
382 N.J. Super. 145, 178-80 (App.

Div. 2005); Mandel v. UBS/Paine Webber, Inc., 
373 N.J. Super.
 55, 72-74 (App. Div. 2004).   In El-Sioufi, we observed that

"[t]he cases in which a single statement has sufficed for

purposes of creating a triable question about hostile work

environment, however, have uniformly involved an outrageous and

offensive statement made by a supervisor directly to the

complaining subordinate[,]" and that "[s]uch a factual scenario

is highly unusual."   
382 N.J. Super. at 179.

    This is obviously not such a "highly unusual" case.     Unlike

in Taylor, the discriminatory comment was not made by

plaintiff's ultimate supervisor, Singh; the comment was not made

directly to plaintiff; Singh promptly reprimanded Sweeney; and

Sweeney promptly apologized to plaintiff for her comments.

    Therefore, the trial court correctly concluded that no

reasonable trier of fact could find that defendants subjected

plaintiff to a hostile work environment that violated the LAD.




                                   12                       A-5157-10T3
Moreover, because there is an insufficient factual foundation

for finding a violation of the LAD, there is also no basis for

finding that plaintiff's resignation constituted a constructive

discharge.


                               II.


    We turn next to plaintiff's claim that HEL breached his

employment contract by failing to pay him commissions that he

had earned before his resignation.     Initially, we note that

plaintiff refers to his resignation as a "termination" of his

employment, in violation of the LAD.    We have concluded for the

reasons set forth in section I of this opinion that the trial

court correctly dismissed plaintiff's LAD claim and that

plaintiff was not constructively discharged.     Therefore, we do

not need to decide whether plaintiff would have been entitled to

additional commissions if he had been constructively discharged.

    Plaintiff was hired by HEL in May 2006 at a salary of

$50,000 per annum.   The letter from Lee offering plaintiff

employment with HEL stated that "the exact structure of

commissions and bonuses" in addition to this salary were "in the

process of being updated and changed" and that how this "will

work out . . . is not entirely known at this point."




                                13                          A-5157-10T3
    On September 19, 2006, Lee sent plaintiff another letter,

which stated that commissions would be governed by the following

rules:

         Commission is paid on a sliding percentage
         scale on a yearly fiscal basis.

         Our fiscal year runs from July 1 to June 30.

         Commission is paid only on completed
         projects within a fiscal year. That
         mean[s], the system should be delivered and
         100% invoiced in the same year. For
         projects that do not get completed in time,
         they will roll-over into the next fiscal
         year.

This letter also indicated that "for the current fiscal year,"

i.e., for July 1, 2006 through June 30, 2007, HEL would use the

following structure for the calculation of commissions:

         [On] the first $1MM (MM=Million) sold:   The
         percentage rate is 0.350% of sales.
         At $1MM, each of you will earn $3,500

         From $1MM to $4MM:
         The percentage rate is 1.05% of sales.
         Each of you will earn $10,500 per $1MM sold.

              . . . .

         For sales above $4MM:
         The percentage rate is 1.6% of sales.
         Each of you will earn $16,000 per $1MM sold.

    On August 23, 2007, Lee sent plaintiff a letter with

respect to his compensation package for fiscal year 2008, i.e.,

for June 1, 2007 through June 30, 2008, which stated in part:




                               14                          A-5157-10T3
         BASE SALARY: $60,000 beginning January 1,
         2008

         No commission on the First $500K.

         From $500K-$1MM (MM=Million) sold:
         The percentage rate would be 2% of
         territorial sales.
         At $1MM, you would earn $10,000

         From $1MM to $2MM:
         The percentage rate is 3% of territorial
         sales.
         At $2MM, you would earn an additional
         $30,000

         From $2MM and above:
         The Percentage rate would be 2% of
         territorial sales WITH NO CAP.

    Plaintiff argues that under these provisions he was

entitled to commissions on any projects that he was working on

as of the date of his resignation even though the customer

orders were not delivered and invoiced until after his

resignation.   HEL contends that this claim to additional

commissions was foreclosed by HEL's commission compensation

policy expressed in the September 19, 2006 letter from Lee that

"commission is paid only on completed projects within a fiscal

year," which means that a system must be "delivered and 100%

invoiced" before the commission is earned.    Plaintiff responds

that the September 19, 2006 letter applied only to his

compensation for the 2007 fiscal year and not to his




                                15                          A-5157-10T3
compensation for the 2008 fiscal year, which was governed by

Lee's August 23, 2007 letter.

    We note that the August 23, 2007 letter only applied to

fiscal year 2008, which expired on June 30, 2008, two months

before plaintiff's resignation.    The record does not contain any

later writing establishing plaintiff's compensation for the 2009

fiscal year, which began on July 1, 2008.    However, the parties

seem to assume that plaintiff's compensation continued to be

governed by Lee's August 23, 2007 letter until superseded by a

subsequent communication relating to the 2009 fiscal year.

    The question, therefore, is whether the rules concerning

the earning of commissions set forth in Lee's September 19, 2006

letter continued to apply during the 2008 and 2009 fiscal years.

Lee's August 23, 2007 letter did not deal with the subject of

how and when commissions were earned.    Consequently, in our

view, the only reasonable interpretation of Lee's series of

informal letters concerning plaintiff's compensation is that the

principles set forth in the September 19, 2006 letter continued

to govern the earning of commissions in subsequent years.

    Furthermore, plaintiff's deposition testimony confirmed his

understanding that he earned commissions only when the sales he

made were invoiced and paid:

              Q.   Okay.   So I just want to be
         crystal clear.



                                  16                        A-5157-10T3
     P-8 [the September 19, 2006 letter] was
in effect, the commission pool structure was
in effect, for the commission year starting
June '06 to July '07?

    A.    Correct.

     Q.   And then P-9 [the August 23, 2007
letter] was in effect from August -- from
June '07 to July '07 -- '08 and then from --
sorry -- from June '07 to June '08, P-9
would have been -- controlled the terms?

    A.    Yes.

     Q.   Okay. Along with the September
19th, '06 letter.

     And the only change from 2008 going
forward was that there was 3 percent on the
2 million and above, correct?

    A.    Correct.

    . . . .

     Q.   Okay.   So when [was] the sale
paid?

     A.   When the sale occurred, I would
then become eligible. So whenever the PO,
the purchase order, came into the door, it
was my sale and, therefore, I became
eligible for that commission and then the
commission would finally be paid upon their
final payment.

     Q.   Okay. Once they made their final
payment, that's what would have to happen
for you to get the payment from HEL?

     A.   Unless prior -- there were some
instances where prior to payment commission
was paid.




                      17                       A-5157-10T3
              Q.   Okay, but those were exceptions.
         The general rule was upon the customer
         making the payment, then you would get the
         commission payment from HEL?

                A.   Correct.

    It is undisputed that as of the September 1, 2008 date of

plaintiff's resignation, only $271,000 worth of the projects

that plaintiff was working on had been delivered and invoiced.

Consequently, under the commission rules set forth in Lee's

September 19, 2006 letter and the commission schedule set forth

in Lee's August 23, 2007 letter, the trial court correctly

concluded that plaintiff had not yet earned any commissions

during the 2009 fiscal year and was not entitled to commissions

on sales that were completed after his resignation.

    Finally, because plaintiff's entitlement to commissions was

established by his employment contract, he is not entitled to

commissions on sales completed after his resignation based upon

principles of quantum meruit or unjust enrichment.    See C.B.

Snyder Realty Co. v. Nat'l Newark & Essex Banking Co. of Newark,


14 N.J. 146, 162-63 (1953).

    Affirmed.




                                18                         A-5157-10T3