JESSIE CLEMMONS v. GUEST SUPPLY-SYSCO

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1448-09T2

JESSIE CLEMMONS,

Plaintiff-Appellant,

v.

GUEST SUPPLY-SYSCO, a/k/a

GUEST PACKAGING, INC.,

SAFWAN HUSSAMELDIN,

DEBRA COHEN, BOB STEGMAN

AND ROBERT GLASSMAN,

Defendants-Respondents.

_____________________________

October 27, 2010

 

Submitted October 12, 2010 - Decided

 

Before Judges Lisa, Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-9038-07.

 

Eldridge Hawkins, L.L.C., attorney for appellant.

 

Windels Marx Lane & Mittendorf, L.L.P., attorneys for respondents (Timothy J. O'Neill, of counsel and on the brief; Shaun A. Bean, on the brief).

PER CURIAM

Plaintiff Jessie Clemmons appeals from an October 23, 2009 order dismissing on summary judgment her complaint asserting employment discrimination and related common law claims. We affirm.

I

These are the most pertinent facts drawn from the summary judgment record.1 Clemmons began her employment as a bulk laboratory technician at defendant Guest Packaging, L.L.C. (Guest Packaging or Guest), on November 1, 2004. Guest packages shampoo, conditioner, soap and various other cosmetic and hygiene products for use by the hotel industry. As a bulk laboratory technician, Clemmons was required, among other things, to conduct tests determining the chemical and physical characteristics of the bulk products (e.g., large containers of shampoo) to ensure they adhered to the applicable production standards.

At the outset of her employment, Clemmons received a copy of the Guest Packaging Employee Handbook, which specifically stated in bold lettering that her employment was on an at-will basis. Clemmons formally acknowledged her receipt of the handbook and her understanding of the at-will nature of her employment with Guest.

Safwan Hussam,2 the manager of the bulk laboratory, was Clemmons' direct supervisor. During Clemmons' employment, Hussam repeatedly documented problems with her job performance and gave her opportunities to improve. Clemmons received her first performance notice from Hussam on June 16, 2005, for issuing the wrong expiration date on a batch of products. She signed the written warning and added in the section for employee comment: "I accept full responsibility for the error, however, management must be consistent in communicating expected practices."

Hussam issued a second written warning to Clemmons on July 13, 2005. This warning, which Clemmons refused to sign, concerned her refusal to attend training so she would be able to cover for an employee from another department who was going on vacation. According to Hussam's report:

The reaction from Jessie was not acceptable at all. She looked at me up and down and she said in front of Anthony [another Guest bulk lab technician] and [said] authoritatively I'm not going to do that, it is not on my job description; find someone else.

On July 13, 2005, Hussam also evaluated Clemmons' job performance. He indicated that Clemmons "meets expectations" in most categories. However, Clemmons received lower marks in the "Cooperation" section, where Hussam indicated that Clemmons "needs improvement" in four areas and that she performed "below expectations" in two areas. Hussam noted that "her level of cooperation is not acceptable," and emphasized that she needed to be more willing to cooperate and adapt to changing circumstances in her work environment. Clemmons objected to this assessment, and noted her disagreement on the evaluation.

By March 15, 2006, her job performance had improved, and Hussam recommended her for a raise of $1 per hour, to $18 per hour. He noted that Clemmons had been very helpful and productive over the past six months. In Hussam's July 18, 2006 performance evaluation of Clemmons, she received higher marks than the previous year. Hussam indicated that Clemmons "exceeded expectations" in three areas, "needs improvement" in four, and did not perform "below expectations" in any area. His summary of her performance stated: "I'm somewhat satisfied with Jessie's performance. She accepts criticism and feedback sometimes and uses it to improve her performance."

Pursuant to Hussam's recommendation, Clemmons received another raise on July 31, 2006, bringing her hourly wage up to $18.54. Clemmons was dissatisfied with this pay increase, and believed that she should have received a higher amount, although at her deposition she admitted that she did not know what, if any, increases other employees received.

On March 30, 2007, Clemmons received a third written warning for failing to cooperate with co-workers and for leaving the laboratory without explanation or authorization. In her deposition, Clemmons testified that she left the lab in order to move her car at the instruction of Guest's security personnel. She indicated that this situation arose occasionally for all Guest employees, because parking could be problematic during shift changes and the legal spots would all be temporarily occupied. After receiving this warning, Clemmons asked for a meeting with Human Resources.

The meeting occurred on April 16, 2007. In anticipation of that meeting, Clemmons drafted a memorandum dated April 16, 2007, asserting that she had been promised a promotion. Her memorandum, captioned "Performance Notice & Corrective Action," concerned a meeting that had taken place on February 16, 2007, before she received her most recent disciplinary recent warning.

The memo stated:

On February 16, 2007, a meeting was held with departmental heads to discuss my career development in the Quality Assurance Department.

 

Present were:

 

Dr. Robert Glassman, Director

Safwan Hussameldin, Laboratory Manager

Jessie Clemmons

 

The meeting centered on my upcoming promotion to a position of greater responsibility Group Leader for the Bulk Laboratory or a project management type position.

According to Clemmons, at the February 16 meeting Glassman informed her that she would receive a promotion, but Clemmons did not know when or to what position she would be promoted. Clemmons also testified that she served in the position of group leader of the bulk lab pursuant to emails she received from Glassman in January of 2006. Clemmons said she believed she was the group leader despite never receiving written or other confirmation from the company, and never receiving the group leader salary. She acknowledged that Guest did not post any group leader positions as available during the timeframe in question.

After the April 16, 2007 meeting with Clemmons, Debra Cohen, the Employee Relations Manager, made the following notation on the bottom of Clemmons' memo:

I explained to Jessie that there are not presently any positions available, for either a Group Leader nor a Project Manager. Furthermore, I advised her that the Performance Notice would remain in her file and could be used in reviewing her performance, should further/additional incidents take place.

At her deposition Clemmons admitted that Cohen told her at the April 16 meeting that there were no Group Leader positions available. However, Clemmons insisted that she left the meeting with the expectation that a promotion to a "position of greater responsibility" would be "forthcoming."

On June 7, 2007, Hussam issued a fourth and final warning to Clemmons, stating that on June 6, 2007, he saw her looking at personal papers for fifteen minutes while work was waiting to be completed. Clemmons testified that she did not bring any personal papers into the lab on that occasion.

Clemmons received a negative performance evaluation from Hussam on July 25, 2007. The evaluation indicated that she "needs improvement" in nine areas, and performed "below expectations" in eight areas. Hussam reported that he received complaints from other employees about Clemmons' attitude, and that she was argumentative and uncooperative when he asked her to do anything requiring additional work. He finished by noting, "I'm not satisfied by Jessie's performance."

Hussam testified that he observed Clemmons shirking work again on August 21, 2007, when he saw her doing nothing in the laboratory while samples were waiting for analysis. Another incident occurred the next day, August 22, 2007, which ultimately led to the termination of Clemmons' employment with Guest. Hussam asked Clemmons to train a new employee, Amira Elsherbini3, to reconcile dyes on batch cards.

In his written report of the incident, Hussam stated:

On August 22, 2007, I asked Jessie to train Amira to reconcile the dyes on batch cards. She looked at me sarcastically and said what do you want me to train her for? She added that Ghulam trained Amira to use the HJ gun. I said it was ok, but I want you to train her how to reconcile the dyes on the batch card, I left the Lab and I went to my office. She came to my office right away. She raised her voice telling me that she is not doing it threatening me that she is going to HR. Simply I told her that she is not working for HR she is working in the bulk laboratory reporting to me and asked her to do that training and complain to HR if she wants to. She said that she spent the time learning the system and was not going to give her assignment to any body else. No matter how I tried to explain to her the importance to have all the Technicians cross-trained, she refused to listen to my directions, showing her insupportable behavior and consistent insubordination and walked away showing no consideration to any thing I said.

Clemmons offered a different version of the August 22 interaction. She testified during her deposition that she merely said "okay" when Hussam requested that she train Elsherbini. However, she admitted that after Hussam left the laboratory, she followed him to his office. According to Clemmons, while she was in Hussam's office, he told her that she was training Elsherbini to replace her in reconciling the batch cards and that Clemmons would instead be running the bench, a position Clemmons regarded as a demotion. Clemmons alleges that she never refused to train Elsherbini, but rather that she asked to meet with HR before beginning the training.

Clemmons emailed Cohen that same morning requesting a meeting involving HR staff, herself and Hussam. The meeting occurred on August 29, 2007. Cohen made notes on the meeting, as follows:

Jessie stated:

I've single handedly brought this facility into compliance.

In March of 2006, I received a $1.00/hour bonus because I was doing such a good job.

 

I've trained every technician in the past.

 

I do all the troubleshooting in HJ, review all batch cards, handle all reconciliations, follow up on all data entry.

 

I took on all of this responsibility on my own.

 

Now Safwan wants me to show this new girl how to do reconciliations and batch cards. I spent all of my time learning the system and becoming an expert, I shouldn t have to give this up, be demoted, and have to return to the bench. Don t expect me to help you with this.

 

Dr. Glassman responded that Jessie was not being demoted. All of the lab technicians are responsible for bench work, and all of the technicians have been told that working on China samples is a top priority. Furthermore, he told Jessie that it is important for the department that all technicians receive cross training on all functions.

 

Jessie asked if Dr. Glassman would consider it insubordinate if she didn t do the training. His response was "yes, I expect you to follow your manager's instructions. Refusing to do the training is insubordinate."

 

At the conclusion of the meeting, Jessie was told that she needed to immediately begin training Amira.

 

The need to train Elsherbini was reinforced on August 30, 2007, when Hussam emailed Clemmons: "[h]ere is today's assignment: Training Elsherbini and Ghulam [Khan, another employee in the bulk lab] to reconcile dyes on the batch cards using a life example." At her deposition, Clemmons testified that she trained Elsherbini and Khan, but that she was not certain whether Elsherbini would be able to reconcile the batch cards following the training, and that she knew Khan could not perform the task. She indicated that she believed she had completed the training assignment, despite these poor results.

On August 31, 2007, in response to Hussam's inquiry, Elsherbini and Khan informed him that they had not been trained to reconcile the dyes on the batch cards. Later that day, a decision was made to terminate Clemmons' employment with Guest in light of her deficient job performance, lack of cooperation with co-workers and management, and insubordination. She was informed of this decision on September 4, 2007, after the Labor Day weekend.

Following her termination, Clemmons filed a complaint against Guest Packaging and its employees Safwan Hussam, Debra Cohen, Robert Stegman, and Robert Glassman. Her complaint alleged employment discrimination on the basis of race, ethnicity and gender, and retaliation, all in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; intentional infliction of extreme emotional distress; false light invasion of privacy; and breach of the implied covenant of good faith and fair dealing. Her discrimination complaint alleged that Hussam, who was Egyptian, had treated her less favorably than Egyptian employees and had fired her because she was an African-American woman.

In an oral opinion issued October 23, 2009, Judge Sebastian P. Lombardi granted defendants' motion for summary judgment. Judge Lombardi found that although Clemmons presented a prima facie case of discrimination, defendants had documented their legitimate non-discriminatory reasons for her termination based on her lack of cooperation and insubordination. See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 455-56 (2005). He also found that plaintiff had not produced evidence that defendants' explanation for her termination was a pretext for discrimination. In that context, he noted that a non-minority employee, to whom Clemmons compared herself, had also been fired for insubordination. The judge found no legal basis for a reprisal claim under the LAD, N.J.S.A. 10:5-12d.

The judge further found that Clemmons had not produced evidence that her work environment was hostile or that she had been subjected to the kind of outrageous employer conduct required to prove intentional infliction of extreme emotional distress. Addressing her contract claim, he found that when she was hired, Clemmons signed a statement acknowledging that she was an at-will employee, a provision also set forth in the employee handbook. Clemmons admitted in her deposition that she knew she was an at-will employee. The judge therefore concluded that she could not establish breach of an employment contract. He dismissed the claim of false light invasion of privacy, because Clemmons did not prove that any of defendants' criticisms of her work were publicly disseminated in the manner required by that cause of action. Rather, they were contained in internal company memoranda and in testimony given in her unemployment benefit hearing.

II

On this appeal, Clemmons raises the following points for our consideration:

POINT I: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED AS TO PLAINTIFF'S CLAIMS BECAUSE ISSUES OF MATERIAL FACTS AND CREDIBILITY ISSUES EXIST.

 

POINT II: SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO DEFENDANTS AS TO PLAINTIFF'S CLAIM OF RECKLESS AND INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS.

 

POINT III: SUMMARY JUDGMENT SHOULD [] BE DENIED AS TO PLAINTIFF'S CLAIM OF FALSE LIGHT BECAUSE PLAINTIFF DOES PROVE THE ELEMENTS OF FALSE LIGHT [IN] REGARD TO THE DEFENDANTS.

 

POINT IV: PLAINTIFF'S COUNT OF THE COMPLAINT, WHICH ALLEGES BREACH OF IMPLIED COVENANT OF GOOD FAITH SHOULD NOT BE DISMISSED AGAINST DEFENDANTS [WHO] HAVE DONE ACTS IN BAD FAITH TO PREVENT THE PLAINTIFF FROM RECEIVING THE FRUITS OF THE EMPLOYMENT CONTRACT.

 

POINT V: CLEMMONS STATES A CLAIM AGAINST ALL DEFENDANTS.

 

POINT VI: SUMMARY JUDGMENT SHOULD BE DENIED TO DEFENDANTS AND GRANTED TO PLAINTIFF AS TO PLAINTIFF'S CLAIMS OF DISPARATE TREATMENT ON THE BASES OF RACE, COLOR, GENDER AND RETALIATION.

 

POINT VII: THE TRIAL COURT ABUSED ITS D[I]SCRETION AND AUTHORITY BY GRANTING SUMMARY JUDGMENT TO DEFENDANTS AND DISMISSING THE ENTIRE CASE WITH PROPER LEGAL BASIS.

 

POINT VIII: THE TRIAL COURT ABUSED ITS D[I]SCRETION AND AUTHORITY BY GRANTING SUMMARY JUDGMENT TO DEFENDANTS AND DISMISSING THE ENTIRE CASE WITHOUT PROPER LEGAL BASIS.

We conclude that all of these contentions are without merit and, except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Our review of the trial court's decision granting summary judgment is de novo. Agurto v. Guhr, supra, 381 N.J. Super. at 525. Employing the Brill4 standard, the same test that the trial court uses in deciding the motion, we "determine whether the evidence, when viewed in a light most favorable to the non-moving party, would permit a rational fact-finder to resolve the dispute in the non-moving party's favor." Ibid. Having reviewed the record with that standard in mind, we find no basis to disturb Judge Lombardi's decision.

Addressing the LAD claims, Guest's managers amply documented that Clemmons was fired for non-cooperation and insubordination, and Clemmons did not produce evidence from which a jury could conclude that the stated reasons for her termination were a pretext for discrimination. See Zive, supra, 182 N.J. at 455-56. Plaintiff's brief did not cite any facts or legal arguments in support of her reprisal claim. Because that claim was not properly presented to us on this appeal, it is deemed waived. However, even if we consider the claim, defendants established legitimate reasons for terminating plaintiff's employment and plaintiff did not demonstrate that the reasons were a pretext for reprisal.

Turning to plaintiff's contract claim, because Clemmons signed an acknowledgement that she was an at-will employee, and she received a handbook that likewise prominently highlighted her at-will status, she could not maintain a cause of action for breach of an employment contract. See Nicosia v. Wakefern Food Corp., 136 N.J. 401, 412-16 (1994); Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 289-301 (1985), modified on other grounds, 101 N.J. 10 (1985). She also admitted knowing that she was an at-will employee. Clemmons could not sustain a claim for breach of the duty of good faith and fair dealing, because such a claim is premised on the existence of an underlying contract. See Wade v. Kessler Inst., 172 N.J. 327, 345 (2002).

Clemmons' remaining claims were patently without merit and were properly dismissed. We affirm substantially for the reasons stated in Judge Lombardi's oral opinion.

A

ffirmed.

1 Contrary to Rule 2:6(a)(4), plaintiff's appellate brief does not set forth the required statement of facts "in the form of a narrative chronological summary incorporating all pertinent evidence." Nor does the statement of facts contain appropriate "references to the appendix and transcript" to support the required factual chronology. Ibid. Instead, the brief advises us that "[t]he Statement of Facts are as recorded in Plaintiff's Counter Statement of Material Facts" filed in the trial court. See Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474-75 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009). While we review the record de novo in a case where summary judgment was granted, Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005), counsel is still required to provide us with a summary of the evidence pertinent to the appeal. Spinks, supra, 402 N.J. Super. at 474-45.

2 Hussam also appears in the record as Hussameldin, as he changed his name during the period of Clemmons' employment. We refer to him as Hussam.

3 Her name also appears in the record as Amira Abdalla. We refer to her as Amira Elsherbini.

4 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).