LORRAINE EHMANN v. SEA SPA, LLC, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3382-04T23382-04T2

LORRAINE EHMANN,

Plaintiff-Appellant,

v.

SEA SPA, LLC, FRANK CHIAIA and

DAWN CHIAIA,

Defendants-Respondents.

___________________________________

 

Submitted December 5, 2005 - Decided

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County,

L-1165-03.

Holly C. Fusco, attorney for appellant.

Scarinci & Hollenbeck, attorneys for respondents (Matthew J. Giacobbe, of counsel; Bruce W. Padula and Steven W. Kleinman, on the brief).

PER CURIAM

Plaintiff filed a one-count complaint alleging that defendants Sea Spa, LLC, (Spa) and Frank Chiaia and Dawn Chiaia violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by terminating her employment based upon her age. Defendants answered and moved for summary judgment. The motion judge found that plaintiff failed to make out a prima facie case of age discrimination because she was not replaced, but instead her duties were taken over by two persons previously employed by defendants during the time of plaintiff's employment. The judge also found that even if plaintiff's proofs were sufficient to establish a prima facie case, defendants articulated legitimate, nondiscriminatory reasons for the adverse employment action. Finally, the judge determined that there were no facts presented by plaintiff to establish any individual liability against owners Frank and Dawn Chiaia, who were not involved in the day-to-day operation of the Spa. Plaintiff appeals and we reverse the order for summary judgment dismissing plaintiff's complaint against the Spa but affirm the order granting judgment to the individual owners.

Plaintiff was hired as a massage therapist at the Spa in March 2001. She was fifty-five years old when she was hired. Plaintiff claims that she was never informed of any customer complaints about her services. In the spring of 2002, the Spa began to reduce plaintiff's hours, assigning them to two existing employees, both substantially younger, who had been employed by defendant prior to plaintiff being hired. One of those employees, Jennifer Wade, had just returned from maternity leave. When plaintiff was first hired, her hours were limited, however, they were increased when Wade went out on maternity leave. The other employee, Sherry Villa, was employed by the Spa as a nail technician at the time plaintiff was hired. After completing her massage certification, Villa was given part-time shifts, alternating between working as a nail technician and massage therapist.

On May 23, 2002, plaintiff wrote a letter inquiring about the reason for her decrease in hours. On June 1, 2002, plaintiff wrote another letter expressing displeasure with her new schedule. Although plaintiff was certified in May 2001 to perform Reiki therapy treatments, she did not file her certificate with the Spa. According to plaintiff, the Spa Manager, Victoria Casciano, requested plaintiff's certification on June 2, 2002. Plaintiff had recently performed a twenty-five minute Reiki massage service on a Spa client. Later that same day, plaintiff claims that Casciano called plaintiff at home and terminated plaintiff's employment, explaining that management felt that the Spa's integrity was jeopardized by plaintiff's performance of Reiki treatments without the proper Reiki license on file.

A certification from Casciano was submitted in support of defendants' motion for summary judgment. It set forth the following reasons for plaintiff's termination:

3. Plaintiff was performing Reiki treatments without a Reiki license . . . . On or about June 1, 2002, I asked her questions about her Reiki license. At that time, plaintiff could not tell me what level Reiki she was certified to perform. Further, plaintiff could not identify her Reiki master . . . . This led to my conclusion that plaintiff was not properly licensed to perform Reiki treatments.

4. On or about June 2, 2002, I informed plaintiff that she was terminated. Failure to be properly licensed for Reiki treatments was not the only reason plaintiff was terminated. Simply, plaintiff was not an asset to the Spa. Several incidents, culminating with the failure to be licensed for Reiki, resulted in plaintiff's termination.

5. As manager of the Spa, I regularly heard the following complaints regarding plaintiff:

She talked too much during treatments, thereby not relaxing the clients;

She would use too much pressure on clients and not accommodate when asked;

She would not render treatment to clients for the full period for which clients paid;

She would not accommodate clients by staying late; and

She was a chronic complainer.

Other therapists also heard these complaints.

6. Lorraine was not an asset to the Spa and should have been terminated prior to June 2, 2002.

7. Further, I was involved in scheduling hours for Jennifer Wade and [Sherry] Villa. During Spring 2002, Jennifer was returning from maternity leave. Plaintiff was hired to replace Ms. Wade's hours while she was out on maternity leave. Thus, Ms. Wade returned to work and was entitled to work her previous hours. Further, by June 2002, Ms. Villa, already employed by the Spa as a nail technician, had received her massage certification. Because the summer busy season was approaching, Ms. Villa was used to fill-in for massage therapy as needed.

In paragraph 11 of its statement of material facts, defendants asserted:

In fact, Plaintiff was hired to substitute for Jennifer Wade who was taking a maternity leave of absence. According to Plaintiff's testimony, Sherry Villa, although originally employed by the Spa as a nail technician, became a massage therapist and was providing massage services at the Spa at the same time as Plaintiff, and prior to Plaintiff's termination.

Plaintiff admitted, "the facts set forth in paragraph 11; however, Plaintiff was offered and accepted full time employment soon after she started with Sea Spa." She also challenged the defendants' assertion that she was not replaced by Wade and Villa.

Initially, we note that plaintiff does not present any legal or factual argument that defendant owners Frank and Dawn Chiaia participated in any decision respecting her termination. We, therefore, confine ourselves to plaintiff's contentions that the Spa, through its management, violated the LAD. On appeal, plaintiff asserts that the motion judge erred in determining that she failed to present a prima facie case by showing that she was replaced by substantially younger employees. She argues that the Spa's retention of Wade and Villa as massage therapists is sufficient to meet her burden. Plaintiff also asserts that the Spa, through its management, did not sufficiently articulate a legitimate, nondiscriminatory reason for the adverse employment action, that its proffered explanation regarding the Reiki certification is unworthy of credence and the judge improperly considered the hearsay complaints respecting plaintiff's performance.

In Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 346-47 (App. Div.), certif. denied, 152 N.J. 189 (1997), we enumerated the proofs necessary for a plaintiff to establish a prima facie case of age discrimination:

To establish a prima facie case of age discrimination, a plaintiff must show that "(1) he was a member of the protected class; (2) he was performing the job at the level that met the employer's legitimate expectations; (3) he was discharged; and (4) the employer sought another to perform the same work after the complainant had been removed from the position." Once the plaintiff establishes a prima facie case, a presumption is created that the employer unlawfully discriminated against the applicant. If in the face of this presumption the employer remains silent, then the employee is entitled to judgment as a matter of law.

The burden then shifts to the defendant employer to rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for the adverse employment action. The defendant employer, however, only carries the burden of production, rather than persuasion, to show a legitimate, nondiscriminatory reason for its action: "It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." The defendant employer need not prove that its proffered reason actually motivated its behavior because throughout this burden shifting model, the burden of proving intentional discrimination always remains with the plaintiff employee.

After the defendant employer has sufficiently set forth a legitimate, nondiscriminatory reason for the adverse employment action, the plaintiff then has the burden of persuasion to show that the defendant's proffered reason is merely a pretext, i.e. that it was not the true reason for the employment decision. A plaintiff may accomplish this by showing that (1) a discriminatory reason more likely motivated the employer than the employer's proffered legitimate reason, or (2) the defendant's proffered explanation is "unworthy of credence." (Citations omitted).

In Williams v. Pemberton Twp. Pub. Sch., 323 N.J. Super. 490, 500-03 (App. Div. 1999), we addressed the fourth element, in particular, the necessity of establishing that plaintiff was replaced by someone outside plaintiff's protected class. There, we pointed out that in Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 555 (1990), the Court noted that plaintiff's reliance on a change in personnel, without a specific showing that the employer replaced plaintiff with a qualified person of the opposite sex, was insufficient. Williams, supra, 323 N.J. Super. at 500. In Erickson, the only proof was that prior to plaintiff's discharge, the defendant had three account executives and at the time of the trial, there were four. Erickson, supra, 117 N.J. at 544. Later, in Bergen Commercial Bank v. Sisler, 157 N.J. 188 (1999), a reverse discrimination case, the Court recognized that the fourth element had been modified to require plaintiffs to show that they were "replaced with 'a candidate sufficiently younger to permit an inference of age discrimination.'" Id. at 213 (quoting Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)). In Williams, we concluded that a plaintiff can meet the fourth element by "showing that the challenged employment decision . . . took place under circumstances that give rise to an inference of unlawful discrimination." Williams, supra, 323 N.J. Super. at 502. Thus, we pointed out that a plaintiff can establish the fourth element in the traditional way by showing replacement by an individual outside the protected class or in a nontraditional way. Id. at 503.

The Spa argues that the judge correctly found that plaintiff failed to establish the fourth prong because its retention of Wade and Villa following plaintiff's termination did not amount to replacement because both were employed contemporaneously with plaintiff. We disagree. The Spa does not claim it was engaged in a reduction in force or that the substantially younger Wade and Villa were retained based upon seniority. Instead, the Spa asserts that it terminated plaintiff because she did not have a Reiki certification and had received complaints from its clientele regarding plaintiff's performance.

In Reynolds v. Palnut Co., 330 N.J. Super. 162, 168 (App. Div. 2000), we held that a plaintiff "need not show that he was replaced by someone sufficiently younger. Rather, plaintiff must show that he was a member of a protected class, that he was performing the job at a satisfactory level; that he was discharged, and that the employer sought others to perform the work" following termination. McDevitt v. Bill Good Builders, Inc., 175 N.J. 519 (2003) is also illustrative. In McDevitt the plaintiff, a sixty-nine-year-old painter, claimed that his termination was motivated by age discrimination rather than a legitimate reduction of force. Prior to plaintiff's termination, the employer hired a younger painter who died of cancer within a few weeks after plaintiff's termination. No new employees were hired to replace the younger painter, however, a foreman who remained with the employer did the painting and also performed supervisory duties. Although the case was reversed on other grounds, the Court agreed under the circumstances presented that plaintiff "failed to establish that the company retained a sufficiently younger worker in the same position as plaintiff" to meet the fourth element. Id. at 526 (emphasis added).

There is only a subtle difference between replacement and retention. To differentiate based upon the replacement of a new employee or the substitution of an existing employee is, at best, to rely on semantics. The issue is not whether the protected individual is replaced by a new employee or an existing employee is retained to do the work following the departure, rather, the issue to be decided is whether an adverse employment action took place under circumstances that give rise to an inference of unlawful discrimination. Here, defendant retained substantially younger employees to do the job performed by plaintiff. Plaintiff's burden of showing a prima facie case is not an onerous one. Maiorino, supra, 302 N.J. Super. at 346. We are satisfied that the evidence amply established a prima facie case. Plaintiff's proofs established that (1) she is a member a protected class; (2) she had not been previously informed of the complaints concerning her work, thus establishing that she met her employer's expectation; (3) she was discharged; and (4) her employer sought others to perform her work.

We are likewise convinced, on the strength of this record, that there exists a factual issue respecting the reasons proffered for plaintiff's termination. The non-discriminatory reasons posited by the Spa that plaintiff was not certified in Reiki and was the subject matter of clients' complaints lack a degree of credence, thus lending support to plaintiff's contention that they are pretextual. Plaintiff established that she was indeed certified in Reiki. Moreover, the existence of client complaints is called into question by plaintiff's assertion that her employer never advised her about them and the lack of any statement from management that plaintiff was told about the complaints at the time they were made. Indeed, the record before us indicates that plaintiff was first informed about the complaints after suit was filed.

Accordingly, we reverse the order dismissing plaintiff's complaint against the Spa and remand the matter for trial. We, however, affirm the order of summary judgment dismissing plaintiff's complaint against owners, Frank and Dawn Chiaia.

Affirmed in part; reversed and remanded in part.

 

Frank Chiaia testified at depositions that he believed that the two employees were in their mid 30s or early 40s.

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A-3382-04T2

December 16, 2005