RONALD C. MASON v. ZOOM TECHNOLOGY, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0727-08T30727-08T3

RONALD C. MASON and

DONNA MASON, h/w,

Plaintiffs-Appellants,

v.

ZOOM TECHNOLOGY, INC., CHARLES

CHRISTIAN HANSEN, JR. and CHARLES

HANSEN, SR.,

Defendants-Respondents.

________________________________________________________________

 

Argued November 18, 2009 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1674-06.

George R. Szymanski argued the cause for appellants (Law Offices of George R. Szymanski, attorneys; Mr. Szymanski, on the brief).

Mark R. Sander argued the cause for respondents (Sander & Carson, P.C., attorneys; Mr. Sander, of counsel and on the brief).

PER CURIAM

Plaintiff Ronald C. Mason appeals from an order that granted summary judgment, dismissing counts of his complaint against defendants. We affirm.

Plaintiff was hired by defendant Zoom Technology, Inc. (Zoom) in 1991 to assist with the assembly of equipment but resigned in 1993 to have an operation on his shoulder. He returned to Zoom August 30, 1999 as a production manager. Both Charles Hansen, Sr. (Chuck), the founder and CEO of Zoom, and his son, Charles Christian Hansen, Jr. (Chris), executive vice-president, were satisfied with plaintiff's performance until the relationship deteriorated in April 2005. His employment was terminated on April 13, 2005.

Among the claims alleged in the lawsuit filed against Zoom and the Hansen defendants were: violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), violation of New Jersey public policy (Pierce claim), assault and battery, and breach of contract.

Plaintiff testified that he injured his back in 2002 while working for Zoom in the machine shop. Plaintiff spoke with Chuck and Chris immediately after the injury and was promised that he would be taken care of. Although he missed a number of days of work while seeking medical treatment, he continued to receive full pay. From his initial injury in 2002 until his termination in 2005, Zoom continuously accommodated his medical condition by allowing plaintiff to take days off to seek medical treatment and reducing his physical workload. For example, he was asked not to lift heavy objects so that he would not exacerbate his injury. Plaintiff testified that, on several occasions, Chris discussed his concern about plaintiff's health. He described a time in December 2004 when there was a rush order that required him to work twelve to fourteen hours a day which "took a tremendous toll on [him] physically and mentally[.]" Chris came to him after everything had shipped and said, "I'm really concerned about your physical condition, about you getting additionally injured on the job."

Plaintiff said that in 2003, he was asked to postpone his surgery twice due to difficulties Zoom was experiencing at the time. However, he testified that when Chris and Chuck met with him in February 2005 specifically to discuss when it would be best for plaintiff to have his back surgery performed, neither Chris nor Chuck expressed opposition to plaintiff's surgery. Chuck denied that he ever asked plaintiff to postpone his back surgery.

Plaintiff said that neither Chuck nor Chris, or anyone else, ever indicated to him that he was terminated because of his disability. In addition, plaintiff testified that he had not heard of any other employees who were discriminated against by Zoom because of a disability.

Plaintiff said that Chris told him to submit his medical bills from the injury in the machine shop to Zoom's insurance carrier, which plaintiff did. However, in 2004, Zoom switched health insurance plans and the medical bills that were previously submitted to the insurer were sent to plaintiff personally. Plaintiff approached Chris, who told him to wait to submit them so they could all be submitted to Zoom's workers' compensation carrier together. Plaintiff testified that Chris never refused to submit the claim and that he did not learn the claim had not been submitted to the workers' compensation carrier until after he was discharged.

Plaintiff testified that Chris became very angry that a fellow employee had filed a workers' compensation claim because Chris was worried about the resulting rise in insurance premiums. Approximately one year before plaintiff was discharged, Chris told him - once - that he was concerned about keeping premiums low.

Chris testified that all compensation claims, if filed, were kept with the employee's personnel file and that plaintiff's file did not include a worker's compensation claim. Chris testified that apparently, the claim was filed after plaintiff was terminated.

Plaintiff testified that in February 2005, a Zoom employee, Barb Newman, notified him that she would be out for four to six weeks due to surgery. He immediately told Chris, who instructed him to fire her. He refused. Plaintiff told Chris that it was his understanding that it was illegal to fire an employee once she informed the employer that she had a disability. After he brought this issue to Chris's attention, Chris did not fire Newman. Plaintiff testified that he believed that Chris did not do so because "he read it in the State of New Jersey statutes, that he printed it out and he found out that, indeed, it was illegal." Plaintiff admitted that Chris never said anything to indicate that he was fired because he had raised this issue. In addition, after Newman began her leave, plaintiff learned of performance issues regarding Newman prior to her disability leave and expressed his own reluctance to take her back. He acknowledged in his deposition that it would not be illegal to terminate her based upon performance problems that existed prior to her disability.

Debbie Bradshaw was the shipper/receiver for Zoom. She had been hired and let go several times and was working at reduced hours. She was absent on February 7 and 8, 2005 and again on March 8, 9, and 10, 2005. She produced doctor's notes for these absences. Chris directed plaintiff to discharge her on March 9, 2005. Plaintiff believed that it was illegal to terminate an employee who documented an illness with a physician's note. Bradshaw was still employed when plaintiff was discharged.

Plaintiff testified that he complained to Chuck Hansen after Chris instructed him to fire Newman and Bradshaw. Chuck confronted Chris, who then returned to plaintiff, angered. Chris was very upset to hear that plaintiff had "gone over his head" by speaking to his father and disobeyed his direct order. Chris told him that he needed to do what he tells him to do; that he was plaintiff's superior and that he should not be going to Chuck about these issues. These were the only statements that plaintiff recalled to support his claim that he was fired because he complained about the allegedly illegal treatment of Newman and Bradshaw. He admitted that Chris never said anything to him that indicated that he was terminated for not firing Newman.

Chuck testified that plaintiff was asked to terminate employees on occasion but that he was never asked to terminate a disabled employee.

Despite these allegations of discrimination and retaliation, plaintiff contended that, shortly before his termination, Chuck promised to give him part ownership and management of Zoom. He stated that, after January 2005, Chuck Hansen told him that he intended to go into semi-retirement at the end of the year and that he wanted to leave Zoom to his son, Chris Hansen, and to plaintiff. Plaintiff testified that he assumed Chris would be in charge and that he would work as a partner. Plaintiff also said he met with Chris in February 2005 and discussed the division of labor within Zoom. Plaintiff said that Chris said he knew the administrative side of the business while plaintiff knew the electrical and mechanical aspects. However, plaintiff admitted that no specifics were discussed. Plaintiff never asked either Chuck or Chris to put the alleged agreement in writing because he saw Chuck as a "father figure" and trusted him. Plaintiff stated that during his employment with Zoom, he had turned down employment offers in reliance on his oral contract with Chuck.

Frank Amato, who worked as a salesman for Zoom from 2002 to 2005, stated in an affidavit that, on a road trip to Chicago after Chuck had returned to work from heart surgery, Chuck told him "that he was going to start phasing out his active role in running Zoom Technology, and that his plan was to leave management and ownership of the business to his son, Chris Hansen, and to his production manager, Ron Mason." He also described another occasion when Chuck and Chris were discussing the future of Zoom. Amato stated that when Chuck explained his plan to have Chris and Ron take over the company, Chris became visibly agitated. Despite the fact that they continued their discussion behind a closed door, Amato could hear that Chris was upset because Chuck planned to have plaintiff share in the management and ownership of the company.

Chris testified at depositions that it was his understanding that his father planned to leave the company to Zoom employees in general but that his father never discussed his plans to leave the company or some form of control or management to plaintiff.

On Monday, April 4, 2005, plaintiff and Chris had a work-related argument that, according to plaintiff, deteriorated into a physical altercation. Chris testified that he needed to discuss an issue with plaintiff. A customer in Canada had been shipped an order that was wrong and needed to be corrected. Plaintiff said that when Chris asked to speak with him, he happened to be carrying a handheld voice recording device in his front shirt pocket and activated it just before entering Chris' office.

In addition to the recorded conversation between plaintiff and Chris, the transcript contains subjective comments by plaintiff that purport to describe events that are not recorded. Chris began the conversation by asking plaintiff to sit down and complaining about his attitude. Plaintiff countered by complaining about his treatment at a meeting on the previous Friday, stating that Chris "kicked [him] in the teeth." Chris denied this and said,

First and foremost I want to make one thing perfectly clear.

. . . .

You did not get kicked out of that meeting (inaudible) in that conference room when we were discussing Sonnex changes.

. . . .

You walked out in a huff and a tithy [sic].

Plaintiff did not deny walking out, stating,

Why? Why, because you and everybody in there attacked me, right? Did you not participate?

. . . .

You sat there and listened. You didn't stop it. Neither did Chuck. No one stopped it, right! What did you do. What did you do. You sat there and helped. You helped Larry attack me. But you know what. Forget it. I made a mistake. I am terribly sorry. I should have been putting the channel plates on. My mistake. I was not aware the price was changed.

Plaintiff further apologized for his misunderstanding and stated that the error would not happen again, that "[c]hannel plates will be put on every single one" and that "[o]ne's going out today . . . UPS red," and would be in the customer's hands the following morning. Chris then questioned why he had received an email that it could not be done until the next day. Plaintiff stated that he had no idea and that he would make sure that the product went out. In a partially inaudible statement, Chris apparently raised plaintiff's attitude once again and stated that he was insubordinate. When plaintiff challenged him, Chris stated that plaintiff failed to do what Chris asked him to do in November; that he worked around Chris and that as a result, "bad product" was shipped and now was coming back to them. Chris then stated that plaintiff had walked out "in a snit" on Friday after avoiding him all day "and now I have a customer that has, that spent 26 thousand dollars on equipment." Chris stated, "You know what Ron, go home and come back tomorrow." At this point in the transcript, plaintiff interjects commentary that alleges that Chris reached for him, tried to pull him out of his chair, released him and then grabbed him again and pushed him out of his office. The transcript continues with plaintiff stating that he was calling the police and, while apparently on the phone, he says to Chris, "What do you want to do, should I continue this?" Chris replies, "I want you to leave." Plaintiff then says, "You want me to continue this, call to the cops. You physically assaulted me. You want me to, huh?" Chris asked, "Where are your witnesses Ron[?]" Plaintiff replied that all the employees in the area saw Chris grab him by the neck. According to the commentary provided by plaintiff, Chris then called out to "witnesses behind glass wall," asking "Anyone see me grab him," and then turned to plaintiff, "Not a one. Go home," and further told him, "Come back tomorrow."

Chris's version of the incident differs. Chris testified that plaintiff acted aggressively toward him and, during the argument, plaintiff "let out a cry" of pain and rubbed his shirt pocket in an effort to fake an assault for the benefit of the recording device in his pocket. Chris said that plaintiff then backed toward the door, threatened to sue, and said that he was calling the police.

Plaintiff left the building and called Chuck, who was away on a business trip. Plaintiff did not record this conversation but prepared a "transcript" written from memory. Plaintiff told Chuck that Chris had assaulted him; that three employees, Garrett, Jeff, and Pat, had witnessed the assault; that his neck and back were injured, and that he was planning to press assault charges.

Chuck was surprised and disappointed to hear of the incident. Immediately after the alleged assault, during the phone conversation with Mason, Chuck said "I know my son is a hot head but I can't believe that he would do that to you." In addition, at depositions, Chuck testified that the alleged assault "was the very last thing that [he] needed[.]" Chuck told Ron that he wanted to call the plant and asked plaintiff not to do anything until he called him back. When Chuck called back that afternoon, plaintiff recorded part of the conversation. Chuck stated,

Ron, I spoke to all three and they told me that they heard sounds coming from Chris's office, but they did not see anything. I also spoke with Chris and he said that you and he had a loud discussion, but he says he never touched you.

Chuck told plaintiff to take a couple of days off, and said that he would love the opportunity to sit down with plaintiff and Chris and "try to work things out." He referred to his long term plan to walk away from Zoom and his desire for plaintiff and Chris to work together. He stated further, "if your decision is not to do that, no hard feelings. In fact, I will try like hell to help you out any way I know how."

On April 13, 2005, Chuck and Chris informed plaintiff in person that he was terminated. Chuck testified that he decided to terminate plaintiff because of his inability to implement the product modifications and that he no longer trusted plaintiff as a result of his unprofessional behavior during the client meeting and the recent confrontation with Chris. After his termination, plaintiff began working for another engineering corporation in March 2006.

The amended complaint alleged violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD) (count one), violation of New Jersey public policy (Pierce claim) (count two), violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (CEPA) (count three), assault and battery (count four), false imprisonment (count five), intentional infliction of emotional distress (count six), breach of contract (count seven), conspiracy (count eight), malicious prosecution (count nine) and loss of consortium (count ten). Plaintiff voluntarily dismissed the CEPA claim (count three) and the false imprisonment claim (count five). The parties resolved count four as to the Hansen defendants (assault and battery), and counts nine (malicious prosecution) and ten (loss of consortium). The court granted summary judgment to the Hansen defendants and to Zoom on all remaining counts. In this appeal, plaintiff only challenges the award of summary judgment to Zoom, and raises the following issues for our consideration:

POINT I

THE TRIAL COURT ERRED IN RULING THAT NO ISSUES OF MATERIAL FACT EXISTED REGARDING RONALD MASON'S CLAIM FOR BREACH OF CONTRACT (COUNT 7 OF THE AMENDED COMPLAINT).

POINT II

THE TRIAL COURT ERRED IN RULING THAT NO ISSUES OF MATERIAL FACT EXISTED REAGARDING RONALD MASON'S CAUSE OF ACTION FOR VIOLATION OF NEW JERSEY PUBLIC POLICY (COUNT 2 OF THE AMENDED COMPLAINT).

POINT III

THE TRIAL COURT ERRED IN RULING THAT NO ISSUES OF MATERIAL FACT EXISTED REGARDING WHETHER A CONTRIBUTING CAUSE OF RONALD MASON'S TERMINATION FROM EMPLOYMENT WAS BECAUSE HE WAS HANDICAPPED, THUS VIOLATING THE NEW JERSEY LAW AGAINST DISCRIMINATION.

POINT IV

THE TRIAL COURT ERRED IN RULING THAT ZOOM TECHNOLOGY WAS NOT VICARIOUSLY LIABLE FOR THE ACTIONS OF CHARLES CHRISTIAN HANSEN, JR. IN COMMITTING ASSAULT AND BATTERY AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS UPON RONALD MASON.

After careful review of the record, briefs and arguments of counsel, we are satisfied that none of these arguments have merit except for the dismissal of the assault and battery claim on vicarious liability grounds.

When reviewing a grant of summary judgment, we employ the same standards used by the trial court, which grants summary judgment if the record shows that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there are no genuine disputes as to any material fact, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

I

We turn first to the breach of contract claim. Even viewing the evidence most favorably to plaintiff, the evidence reflects only that Chuck expressed, in very general terms, an intention to shift management and ownership to his son and plaintiff when he withdrew into semi-retirement.

Plaintiff's breach of contract claim is properly analyzed by the contractual principles applicable to a claim that an oral employment contract exists. Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 288 (1988). To be enforceable, a contract "must be sufficiently definite 'that the performance to be rendered by each party can be ascertained with reasonable certainty.'" Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992).

[I]f parties agree on essential terms and manifest an intention to be bound by those terms, they have created an enforceable contract. Where the parties do not agree to one or more essential terms, however, courts generally hold that the agreement is unenforceable.

[Ibid. (citations omitted).]

See also Graziano v. Grant, 326 N.J. Super. 328, 339-40 (App. Div. 1999). Because the evidence failed to show that there was an agreement as to any essential terms, there was no genuine issue of fact regarding the existence of an enforceable contract and summary judgment was properly granted.

II

Although plaintiff testified that, as late as April 2005, Chuck expressed his desire to have plaintiff assume a leadership role in the company, he alleged that his termination was due to unlawful discriminatory motives and contrary to a clear mandate of public policy. See Pierce, supra, 84 N.J. at 72.

In Pierce, the Supreme Court held that "an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy." Ibid. The employee bears the burden of identifying "a specific expression" or "a clear mandate" of public policy which might bar his discharge. Ibid. What constitutes a qualifying mandate is a fact question:

The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interests of a profession or an administrative regulation concerned with technical matters probably would not be sufficient. Absent legislation, the judiciary must define the cause of action in case-by-case determinations.

[Ibid.]

The mandate of public policy must be clearly identified and firmly grounded. MacDougall v. Weichert, 144 N.J. 380, 391-92 (1996). A "vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate. Its alleged violation will not sustain a wrongful discharge cause of action." Id. at 392; Mehlman v. Mobil Oil Corp., 153 N.J. 163, 181 (1998).

The amended complaint states that defendants violated public policy "by harassing [him] at work because of his disability, by refusing to give [his] workers' compensation claim to their insurance company and by terminating him from employment because he wanted to make and did make a workers' compensation claim for his work injuries." At his deposition, he testified that those were the only grounds for his Pierce claim. At oral argument on the motion, plaintiff's counsel articulated three grounds as contributing factors in his discharge: his desire to file a workers' compensation claim; his filing an assault complaint against Chris Hansen; and his "refusal to fire or discriminate against two women who were having disability issues."

A

Plaintiff's claim of harassment based upon a disability is cognizable under the LAD, N.J.S.A. 10:5-4.1, -12. In Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476 (App. Div.), certif. denied, 136 N.J. 298 (1994), we concluded that supplementary common law causes of action may not go to the jury when a statutory remedy under the LAD exists:

Our Legislature has declared the remedies available under the LAD and would appear to have expressed the view that a common law claim for discrimination is unnecessary as the statute should be read broadly enough to encompass those claims and damages previously available at common law.

[Id. at 491-92.]

Plaintiff has made no allegation of disability discrimination that falls outside the scope of the LAD and also involves a clear mandate of public policy. Therefore, because the count relies upon claims of harassment that lie within the scope of the LAD, dismissal of plaintiff's Pierce claim was appropriate as a matter of law.

B

N.J.S.A. 34:15-39.1 provides in pertinent part:

It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim workmen's compensation benefits from such employer . . . .

[(Emphasis added).]

The Supreme Court has held that a plaintiff has a common law right of action for wrongful discharge based upon an alleged retaliatory firing attributable to the filing of a workers' compensation claim because such a retaliatory firing is specifically declared unlawful under N.J.S.A. 34:15-39.1 and 39.2. Lally v. Copygraphics, 85 N.J. 668, 670 (1981). To establish a prima facie case that a Pierce claim exists based upon this violation of public policy, the employee need not actually file a claim but must prove: "(1) that he made or attempted to make a claim for workers' compensation; and (2) that he was discharged in retaliation for making that claim." Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435, 442-43 (App. Div. 1988).

Plaintiff alleged that he suffered two workplace injuries, one in August 2002 and one when he was allegedly assaulted by Chris Hansen on April 4, 2005.

As to the latter injury, there is no evidence that plaintiff made or attempted to make a claim for workers compensation. He argues only that defendants were on notice that he was injured and in need of medical attention as a result of the assault. Because there is no evidence that he even attempted to file a claim prior to his discharge, his proofs are insufficient to establish a prima facie case that he was discharged in retaliation for filing a claim for the 2005 injury.

The evidence presented regarding the August 2002 injury is also insufficient. Although plaintiff testified that Chris had expressed concern about an increase in workers compensation insurance rates if he was out on workers compensation, he provided no evidence that he was discharged because he intended to file a claim based upon the August 2002 injury. These proofs fail to satisfy the second element of a prima facie case, i.e., that he was discharged in April 2005 in retaliation for attempting to file a claim for the August 2002 injury.

C

Plaintiff also claims that his refusal to terminate Debbie Bradshaw and Barb Newman was a "substantial contributing factor" to his discharge. He argues that he was directed to discharge two female employees because of their absence from work due to medical reasons, and that he refused to do so because he believed such terminations would have been illegal.

By asserting this claim, plaintiff assumed the burden of showing "that he was in fact discharged in retaliation for taking action in opposition to corporate action which violates a clear mandate of public policy." House v. Carter-Wallace, Inc., 232 N.J. Super. 42, 54 (App. Div.), certif. denied, 117 N.J. 154 (1989). See also Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 550 (App. Div. 1995). The evidence falls short of presenting a genuine issue of fact as to that burden.

The evidence as to Debbie Bradshaw revealed that after plaintiff's complaint, she was not discharged and was still employed when plaintiff was terminated. The only statements that plaintiff recalled to support his claim that he was fired because he complained about the allegedly illegal treatment of Newman and Bradshaw concerned Chris's complaint that plaintiff had gone over his head to speak to his father. As for his complaint that it was unlawful to discharge Newman when she was out on disability, his own testimony shows that Chris ultimately accepted his position, based upon his own review of the statute, and did not discharge her. Further, by his own admission, plaintiff did not want to take Newman back when he learned of her performance issues and he could not identify any statement made by Chris that would support a claim that he was discharged in retaliation for making this complaint. Accordingly, no genuine issue of fact existed to support a Pierce claim based upon plaintiff's refusals to terminate these employees.

D

The final argument in support of plaintiff's Pierce claim is that he was terminated in retaliation for his threat to sue defendants. Both Chuck and Chris Hansen acknowledged that plaintiff was terminated, in part, because plaintiff threatened to sue them. However, because the threatened suit was to vindicate an interest personal to plaintiff, this argument also fails to identify a violation of a clear public mandate. See Erickson v. Marsh & McLennan Co., 117 N.J. 539, 560 (1990) ("[A]n employer has an absolute right to discharge an 'at-will' employee even if that employee has retained a lawyer to protest the employer's actions provided only that the employer not violate any clear mandate of public policy.").

III

Plaintiff argues that the court erred in dismissing his LAD claim. After carefully reviewing the record and arguments of counsel, we are satisfied that this argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments. In his complaint, plaintiff alleged that defendant violated the LAD by harassment based upon his disability and because his handicap was a contributing factor to his discharge. In this appeal, plaintiff makes generalized statements that he was handicapped based upon his chronic back problem, and argues further that he is handicapped based upon his status as a recovered drug addict and alcoholic and the fact that the defendants believed that he had suffered a temporary psychiatric episode. His proofs fail to present a prima facie case of either harassment or discriminatory discharge. He has failed to identify a pattern of conduct or conduct that was so severe and pervasive to constitute a hostile working environment. See Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993). He has also failed to identify any competent evidence to support a conclusion that he was terminated due to his alleged disability. As a result, he is unable to refute the non-discriminatory reasons for his discharge articulated by defendants, and has ultimately failed to present a prima facie case of discriminatory discharge. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973); Bergen Commercial Bank v. Sisler, 157 N.J. 188, 208-11 (1999).

IV

Plaintiff also argues that the trial court erred in concluding that Zoom could not be held vicariously liable for the actions of Chris Hansen in allegedly intentionally inflicting emotional distress and committing an assault and battery upon him. The allegation that Chris Hansen intentionally inflicted emotional distress upon plaintiff lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), because plaintiff has failed to establish a prima facie case. See Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366-68 (1988). We therefore limit our discussion to the claim for vicarious liability based upon the alleged assault.

Chris denied assaulting plaintiff and the recorded portions of their conversation do not unequivocally establish that an assault occurred. However, drawing all favorable inferences in his favor, as we must, plaintiff's testimony that Chris grabbed him by the neck to forcibly eject him from his office is sufficient, if believed by the jury, to support a claim of assault and battery.

Turning to whether Zoom can be vicariously liable for the alleged assault, the evidence here clearly establishes the threshold requirement that a master-servant relationship existed between Zoom and Chris Hansen. See Carter v. Reynolds, 175 N.J. 402, 408 (2003); see also Wright v. State, 169 N.J. 422, 436 (2001). Because that relationship does not automatically create an inference that an employee's actions were within the scope of employment, Carter, supra, 175 N.J. at 410, we must then consider whether the evidence shows that the employee was acting within the scope of his or her employment. Lehmann, supra, 132 N.J. at 619.

The "conventional" rule summarized by the Supreme Court in Commercial Union Insurance Co. v. Burt Thomas-Aitken Construction Co., 49 N.J. 389, 392 n.1 (1967), is that

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

In Roth v. First Nat'l State Bank, 169 N.J. Super. 280, 286 (App. Div.), certif. denied, 81 N.J. 338 (1979), we described the application of this rule:

Ordinarily, if the employee deviates from the business of his employer and, while in the pursuit of his own ends, commits a tort, the employer is not liable. However, an act may be within the scope of employment although consciously criminal or tortious, [Restatement (Second) of Agency 231], as where done for the master's purposes or reasonably expectable by the latter.

[(Emphasis added).]

Whether the conduct serves the employer has also been described as whether the conduct "occurred in the course of fulfilling some job-related function." Carter, supra, 175 N.J. at 411. Other relevant factors include: "whether the conduct is of the same general nature as that authorized, or incidental to the conduct authorized; whether the master has reason to expect that such an act will be done; the similarity in quality of the act done to the act authorized; and the extent of departure from the normal method of accomplishing an authorized result." Hill v. N.J. Dep't of Corr. Comm'r, 342 N.J. Super 273, 306 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). Considering these factors, in Mason v. Sportsman's Pub, 305 N.J. Super. 482, 497-500 (App. Div. 1997), an employer pub was vicariously liable for an employee-bouncer's battery of patron because the bouncer was acting within the scope of his employment - the battery took place during hours he was employed and within the space limits of employment and ejection of the patron served the employer's purpose of maintaining orderly establishment. In Schisano v. Brickseal Refractory Co., 62 N.J. Super. 269 (App. Div.), aff'd, 33 N.J. 323 (1960), a guard struck a person who refused to remove his car from a private parking lot. We held that the question whether he was acting within the scope of his employment was a question for the jury.

Conversely, we have excluded vicarious liability when a crime is committed by an employee for his own purposes. Gotthelf v. Property Mgmt. Sys., Inc., 189 N.J. Super. 237, 240 (App. Div.), certif. denied, 95 N.J. 219 (1983). Once an employee has abandoned his duty and acted in furtherance of his own interest, then the doctrine of respondeat superior does not apply. Id. at 241. See, e.g., Roth, supra, 169 N.J. Super. at 287 (employer bank not vicariously liable for the action of a teller in tipping off confederates who robbed plaintiff after a withdrawal from defendant bank).

In assessing those factors here, the alleged assault occurred in the workplace, during normal working hours. The subject matter of the argument was plaintiff's attitude and work performance, issues that were unquestionably work-related. As plaintiff's superior, it was within the purview of Chris's responsibilities to discuss those issues with him, to criticize and even discipline him. It was further within the scope of Chris's exercise of authority to instruct plaintiff to leave and go home. The conduct that exceeded the authority delegated to him was the alleged battery of plaintiff. Chuck's surprised reaction, when plaintiff called him immediately thereafter to tell him about the alleged assault, demonstrates that such conduct was both unanticipated by Chuck and beyond Chris's legitimate job-related function.

These facts distinguish this case from Sportsman's Pub and Schisano. The employee in each of those cases was delegated the task of exercising authority over a third party under circumstances in which some resistance could be predicted. Therefore, it was "reasonably expectable" that the employee might use some degree of physical force in service to the master's legitimate job delegations to remove an unruly patron and to require a person to remove a car from a private parking lot. In each case, the act was done "for the master's purposes [and was] reasonably expectable by the latter." Roth, supra, 169 N.J. Super. at 286. In this case, we find particularly instructive Paragraphs (1)(d) and (2) of the conventional rule set forth in Commercial Union, supra, 49 N.J. at 392 n.1. According to that rule, a master is vicariously liable for the conduct of a servant "if, but only if" certain criteria are met, including that "if force is intentionally used by the servant against another, the use is not unexpectable by the master." (1)(d). In addition, Paragraph (2) provides that conduct of a servant will fall outside the scope of employment "if it is different in kind from that authorized . . . or too little actuated by a purpose to serve the master." None of the evidence regarding Chris's authority, job function and Chuck's immediate reaction supports an inference that Chris's alleged assault was reasonably expectable. Even as recounted by plaintiff, Chris's alleged assault was apparently actuated by personal feelings of resentment and annoyance with plaintiff, and was not "actuated" by any "purpose to serve the master." We are therefore satisfied that the evidence fails to present a genuine issue of fact that Chris committed the alleged assault while acting within the scope of his employment. Because this conclusion is "clearly indicated" by the evidence, summary judgment dismissing the vicarious liability claim was appropriate. See Sportsman's Pub, supra, 305 N.J. Super. at 499 (quoting Restatement (Second) of Agency, 228(1)(d) comment d (1958) ("The question whether or not the act done is so different from the act authorized that it is not within the scope of the employment is decided by the court if the answer is clearly indicated; otherwise, it is decided by the jury.")).

 
Affirmed.

This appeal only concerns the claims of Ronald Mason since Donna Mason's loss of consortium claim was resolved.

Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980).

(continued)

(continued)

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A-0727-08T3

August 3, 2010