FIZELMA FILS-AIME v. DURO BAG MANUFACTURING COMPANY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1142-04T51142-04T5

FIZELMA FILS-AIME,

Plaintiff-Appellant,

v.

DURO BAG MANUFACTURING COMPANY,

a foreign corporation, RICHARD

HAJDUK, MARY RITA WEISSMAN,

THE WEISSMAN GROUP, DURO STANDARD

PRODUCTS, CO., INC. and EMPLOYEE

RELATIONS CONSULTANTS, INC., an Ohio

Corporation,

Defendants-Respondents.

________________________________________________________________

 

Argued December 6, 2005 - Decided January 24, 2006

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Union County, L-3338-02.

David M. Beckerman argued the cause for appellant (Beckerman & Beckerman, attorneys; Mr. Beckerman, on the brief).

John W. Fischer (Denlinger, Rosenthal & Greenberg) of the Ohio bar, admitted pro hac vice, argued the cause for respondents (Pitney Hardin, and Mr. Fischer, attorneys; Mary B. Rodgers, of counsel and on the brief; Mr. Fischer, of counsel).

PER CURIAM

Plaintiff, Fizelma Fils-Aime, appeals from a summary judgment dismissing his claim for adverse employment action. Plaintiff is a black United States citizen of Haitian descent. He was employed for twenty-seven years by S&G Packaging Company, a manufacturer of paper bags, in Elizabeth. In 1997, he became a production supervisor. In 2000, Richard Hajduk became his supervisor. Hajduk was supervised by the plant manager, Karl Kalkbrenner.

Plaintiff alleged that Hajduk repeatedly referred to him as "boat boy," which plaintiff took as a derogatory term aimed at his heritage. Although Hajduk denied the allegation, the trial judge accepted it as true for summary judgment purposes. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This was the only allegation of racial bias advanced by plaintiff.

In 2002, Duro Bag Manufacturing Company purchased S&G's Elizabeth plant, as well as its plants in the Chicago and Phoenix areas. As part of the purchase agreement, S&G would terminate all of its employees, with the understanding that they could apply for employment with Duro Bag. Duro Bag hired an independent consulting firm, The Weissman Group, which is the business name for Employee Relations Consultants, Inc., for the purpose of evaluating applicants for employment in the three plants purchased from S&G.

The Weissman Group has been in existence since 1980 and has clients throughout North America. Mary Rita Weissman was responsible for the firm's acquisition services. She was a former vice president of human resources for The Mead Corporation, a large paper manufacturer and had worked fulltime in human resources since 1972. She has personally conducted more than 15,000 interviews. She had extensive experience in developing a structured approach to assessing large numbers of applicants to assist purchasers of manufacturing facilities in their evaluation and hiring of an initial workforce. She had particular expertise in the paper industry.

Mary Rita Weissman was the project manager on this project. She designed a detailed and multi-layered process for evaluating applicants. This involved meeting with representatives of Duro Bag and developing an applicant profile defining the characteristics and standards against which candidates would be evaluated for each position. A five-level scoring description criteria for each performance-predicting characteristic was identified, with five being the highest score and one the lowest. The Weissman Group developed an interview guide containing specific questions to be asked by interviewers. Each applicant was required to complete an application form and pre-employment survey designed by the Weissman Group.

A Weissman Group consultant would obtain a job reference on each applicant by a structured interview with the applicant's supervisor. The supervisor would be required to answer specific questions and give examples or other specific information to support each answer with respect to the applicant. The interviewer would score the supervisor's responses on the one to five scale and compute a composite score.

A different Weissman Group interviewer would interview each applicant following the interview guide. That interviewer would not know the results of the reference interview and evaluation. Thus, that interviewer would make an independent assessment of the applicant based solely on the interview with the applicant. In a similar manner, each response would be scored on the one-to-five scale, with a composite score being computed.

The system was designed so that any applicant receiving a score of three or higher would be deemed eligible for employment by Duro Bag. An applicant scoring less than three would be deemed ineligible. After all of the interviews were completed, the Weissman Group project manager would evaluate the complete file on each applicant. For the first time, the applicant interview and supervisor interview would both be viewed together. If they were consistent (i.e. three or above or less than three), the result would stand. If they were inconsistent, a second reference interview would be conducted with an alternative supervisory person.

The Elizabeth plant, while operating under S&G, had ten production supervisors, three for each shift and one relief supervisor. Under S&G, the Elizabeth plant was operating at a substantial loss. Duro Bag intended to streamline the operation and operate the plant profitably. It determined that a reduction in force would be implemented. In its initial hiring, Duro Bag determined that, consistent with its other manufacturing facilities, it would maintain only two production supervisors per shift, for a total of six in the Elizabeth plant. All ten production supervisors previously employed by S&G, including plaintiff, applied for a position with Duro Bag.

On March 26, 2002, Linda Mallin, a Weissman Group consultant, interviewed Hajduk, who was the supervisor for all ten production managers. Hajduk was still an employee of S&G. Hajduk later applied for and was hired by Duro Bag on May 3, 2002.

Mallin and Hajduk discussed each applicant for about twenty minutes. Mallin followed the prescribed format. The format was designed to screen for any potential bias, and Mallin was trained to do so. The composite scores for the ten applicants compiled by Mallin ranged from a high of 4.00 to a low of 2.21, which was plaintiff.

Between March 27 and April 5, 2002, several consultants employed by the Weissman Group interviewed the ten applicants. Mary Rita Weissman personally interviewed several of the applicants, including plaintiff. That interview occurred on April 4, 2002, and lasted about forty minutes. In accordance with the program design, she did not know the results of the reference interviews provided by Hajduk for plaintiff or any of the other applicants. Based upon her interviews, Mary Rita Weissman determined composite scores for the ten applicants ranging from a high of 4.11 to a low of 2.45, which was plaintiff. Based upon her own interview with plaintiff, she determined he was not qualified to be a supervisor at Duro Bag and determined that she would not recommend that he be hired by Duro Bag. As project manager, she had the authority to reach that conclusion.

Based upon a review of the supervisor interviews and comparison of those scores to the scores resulting from the applicant interviews, Mary Rita Weissman determined that the six highest individuals should be recommended for hire and the four lowest individuals, including plaintiff, should not. She reviewed the matter with plant manager Kalkbrenner before communicating her intended recommendations to Duro Bag. Kalkbrenner agreed with her evaluation, and he specifically agreed that based upon his own knowledge of plaintiff's work performance, plaintiff should not be hired by Duro Bag. Plaintiff has acknowledged that he has a high level of respect for Kalkbrenner, that Kalkbrenner holds no bias or animus towards him, and that Kalkbrenner would give an honest opinion about plaintiff's qualifications. If there had been a discrepancy between the applicant interview of plaintiff and the supervisor reference, a second reference interview would have been conducted with Kalkbrenner.

Duro Bag accepted the recommendations of the Weissman Group and hired the six individuals who were recommended, one of whom was black and another Hispanic. The other four individuals, including plaintiff, were not hired. Among those, three were white and only plaintiff was black. In this transition, only one other applicant for a supervisory position at Duro Bag was black. He applied for the position of warehouse supervisor. Based upon the same interview process that we have described, he was recommended by the Weissman Group and hired by Duro Bag. Plaintiff's brother also applied for a position with Duro Bag, was recommended by the Weissman Group and was hired by Duro Bag.

Plaintiff brought this action, claiming that Duro Bag's failure to hire him violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. He alleged that the other defendants were also in violation of the LAD because they aided and abetted Duro Bag in the process that resulted in his non-hiring. See N.J.S.A. 10:5-12(e). Plaintiff also asserted a claim of intentional infliction of emotional distress against Hajduk. However, he voluntarily dismissed that claim before the case was disposed of in the trial court.

Defendants moved for summary judgment, which Judge Anzaldi granted by order of September 21, 2004, for the reasons set forth in his written opinion of September 16, 2004.

The judge rejected as pure speculation plaintiff's suggestion that a factual issue existed as to whether Mary Rita Weissman "peeked" at the results of the Hajduk reference interview before she conducted her interview of plaintiff. The judge rejected the notion that the process was flawed in its design or execution. He concluded that the Weissman Group acted as an independent contractor, not as an agent of Duro Bag, and it was not liable under the LAD for aiding and abetting in any unlawful employment practice. Thus, even if Hajduk held some bias against plaintiff, and even if that bias influenced his negative reference interview about plaintiff, it had no effect on the recommendation by the Weissman Group to Duro Bag that plaintiff should not be hired. Further, even if it did, it was not causative of plaintiff's grievance because Kalkbrenner would have given a similar negative reference had the process moved to that step. Therefore, summary judgment was granted dismissing the complaint against the Weissman Group, Mary Rita Weissman, and Employee Relations Consultants, Inc.

The judge then engaged in an analysis under the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Duro Bag conceded, for purposes of the summary judgment motion, that plaintiff could establish a prima facie case under the first prong. Duro Bag proffered its legitimate, non-discriminatory reason for not hiring plaintiff, namely, it determined there should be a reduction in force and, based upon a comprehensive and neutral evaluation conducted by a highly experienced and reputable outside consultant, plaintiff fell below the acceptable level for employment to the position for which he applied. Contrary to plaintiff's assertion that because the evaluation was based upon subjective criteria or that the process was somehow flawed, the judge was satisfied that Duro Bag met its burden under the second prong.

The remaining issue was whether, viewing the facts in the light most favorable to plaintiff, a reasonable factfinder could conclude that Duro Bag's proffered non-discriminatory reason for not hiring plaintiff was pretextual. The judge found there was no triable issue. Even if Hajduk harbored a bias toward plaintiff, that bias would not be imputed to Duro Bag because Duro Bag was not Hajduk's employer. Further, even if there was some taint in the process by the Weissman Group, that entity only made a recommendation, and the party doing the actual hiring and non-hiring was Duro Bag. There was no basis for LAD liability against Duro Bag.

Finally, in light of the dismissal of the claims against the other parties, and plaintiff's voluntary dismissal against Hajduk for intentional infliction of emotional distress, plaintiff had no other viable claims against Hajduk. Thus, summary judgment was granted with respect to him.

On appeal, plaintiff raises these arguments:

POINT I

THE DEFENDANT HAS NOT COMPLIED WITH THE SECOND STEP REQUIREMENT AS SET FORTH IN [MCDONNELL] DOUGLAS VS. GREEN.

POINT II

MATERIAL ISSUES OF FACT REGARDING DURO'S REASONS FOR REFUSAL TO HIRE PLAINTIFF INCLUDING INVALID TESTING PROCEDURES PRECLUDE SUMMARY JUDGMENT.

POINT III

ACTIONS OF HAJDUK ARE IMPUTED TO WEISSMAN WHICH ARE ALSO IMPUTED TO DURO.

POINT IV

THE SUCCESSOR CORPORATION DOCTRINE APPLIES TO BIND DURO.

POINT V

QUESTIONS OF FACT[] TO BE DECIDED BY THE JURY REFERRABLE [SIC] TO THE VALIDITY OF THE NON-DISCRIMINATORY REASONS GIVEN BY DURO IN THE SECOND STEP.

POINT VI

BOTH DURO AND WEISSMAN WERE THE EFFECTIVE DECISION MAKERS.

POINT VII

ANTICIPATED ARGUMENTS BY DEFENDANT.

POINT VIII

THE OVERALL RACIAL BALANCE FOLLOWING THE HIRING PROCESS IS NOT DISPOSITIVE.

POINT IX

EACH OF DEFENDANTS' PURPORTED EXCUSES FOR HAJDUK'S BIASED REFERENCE IS EITHER BASED ON HIGHLY DISPUTED FACTS OR IS LEGALLY INSUFFICIENT TO WARRANT SUMMARY JUDGMENT FOR THE DEFENDANTS.

POINT X

EVIDENCE THAT DEFENDANTS' PROFERRED [SIC] EXPLANATION IS NOT TRUE.

POINT XI

HAJDUK MAY BE PROPERLY HELD LIABLE UNDER L.A.D.

POINT XII

SUMMARY JUDGMENT IN FAVOR OF MARY RITA WEISSMAN, THE WEISSMAN GROUP AND EMPLOYEE RELATIONS CONSULTANTS, INC. IS INAPPROPRIATE.

POINT XIII

PLAINTIFF HAS A CAUSE OF ACTION AGAINST DEFENDANT, HAJDUK FOR INFLICTION OF INTENTIONAL TORT.

POINT XIV

THE AUTHOR THOUGHTS.

 
We have carefully reviewed the record. Upon our review of an order for summary judgment, we consider the matter de novo and apply the same Brill standard as was applied in the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We conclude that plaintiff's arguments on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth by Judge Anzaldi in his comprehensive written opinion of September 16, 2004.

Affirmed.

(continued)

(continued)

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A-1142-04T5

January 24, 2006