GABRIEL SEPULVEDA v. BORNE HOLDING CO INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3367-09T3

GABRIEL SEPULVEDA,

Plaintiff-Appellant/

Cross-Respondent,

v.

BORNE HOLDING CO., INC.,

a corporation, KURT BORNE,

individually, and GARY

BORNE, individually,1

Defendants-Respondents/

Cross-Appellants.

_______________________________________

December 9, 2010

Argued October 19, 2010 Decided

Before Judges Skillman, Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1683-08.

Alan L. Krumholz argued the cause for appellant/cross-respondent (Krumholz Dillon, P.A., attorneys; Mr. Krumholz, on the brief).

Michael W. Hoffman argued the cause for respondents/cross-appellants(Maselli Warren, P.C., attorneys; Mr. Hoffman, on the brief).

PER CURIAM

Plaintiff Gabriel Sepulveda appeals from an order entered by the Law Division on February 5, 2010, granting summary judgment in favor of defendants Borne Holding Co., Inc. (BHC), Kurt Borne (Kurt) and Gary Borne (Gary). Defendants cross appeal from an order entered on March 19, 2010, denying their motion for sanctions pursuant to Rule 1:4-8. For the reasons that follow, we reverse on the appeal and affirm on the cross appeal.

I.

In this case, plaintiff alleges that BHC terminated his employment in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), because it required him to work on Sundays despite plaintiff's belief that doing so would be contrary to his religious practices and observances. Plaintiff further alleges that BHC failed to reasonably accommodate his religious beliefs. He also claims that Gary and Kurt violated the LAD by aiding and abetting BHC in the alleged unlawful acts.

Plaintiff's complaint arises from the following facts. BHC engaged in the business of storing and distributing of goods under the name of PSS Warehousing/Transportation (PSS). Gary is President of BHC and PSS and Kurt is Vice-President of the companies. BHC maintained a warehouse at 285 Ridge Road in Dayton, New Jersey. Since April 2001, plaintiff had been working for BHC as an "order picker" in the company's 285 Ridge Road warehouse.

Michael Reardon (Reardon) was plaintiff's supervisor. At his deposition, Reardon testified that prior to November or December 2007, BHC ordinarily did not require its employees to work overtime, and any overtime work that was required usually occurred on Saturdays. Reardon said that BHC's employees were rarely, if ever, required to work on Sundays at the warehouse at 285 Ridge Road.

From April 2001 to December 2007, BHC did not require plaintiff to work on Sundays. If plaintiff was required to work overtime, he usually would do so during his regular Monday-to- Friday work week, but on occasion, he was required to work on Saturdays. BHC's records show that from February 2007 through January 2008, plaintiff worked three Saturdays.

In December 2007, Reardon informed plaintiff and his co-workers at 285 Ridge Road that, because BHC was re-locating from that site, they would be required to work on Saturdays and/or Sundays to assist in the move. Plaintiff informed Reardon that he would not work on Sundays because it would conflict with his religious practices and observances. Two other employees refused to work on Sundays, but their refusals were not based on their religious beliefs.

Reardon informed Kurt that plaintiff and the other two workers had refused to work on Sundays. Reardon explained that plaintiff's refusal was based on his religious practices. According to Reardon, Kurt said the employees would be required to "do what they need to do." Reardon told plaintiff that he would have to work on Sundays. Plaintiff told Reardon that he would not do so.

On Friday, February 15, 2008, Reardon informed plaintiff that he would have to work on Saturday and Sunday of that week. Plaintiff refused to work on Sunday. Reardon informed Kurt, and Kurt told Reardon that plaintiff would have to work "sun up to sun down" on Saturday. Kurt said that plaintiff would be "written up" for refusing to work on Sunday.

At his deposition, plaintiff testified that on Saturday, February 17, 2008, after he finished work, he was told to see Gary. Plaintiff went to Gary's office. Gary was there with Kurt. Plaintiff stated that Gary cursed at him for refusing to work on Sunday. Gary told plaintiff that he was fired and ordered him to get off the premises. He also told plaintiff that he should not think about collecting unemployment benefits.

Plaintiff testified that since 1992, he has been a "born-again" Christian, which means that he had been baptized twice. Plaintiff is a member of the Unbroken Chain Church. He did not regard working on Sundays as a sin but thought that God had intended Sunday to be a day of rest. Plaintiff acknowledged that some members of his church work on Sundays but said that some do not. Plaintiff further testified that on Sundays he goes to church and, thereafter, does not socialize with anyone. Plaintiff said that he stays in his bedroom and prays silently.

Plaintiff additionally stated that, approximately twenty-one years prior to his employment at BHC, he worked on a Sunday while employed at another warehouse. Plaintiff said that, on that day, he stopped work after about an hour because "everything went wrong." He told his boss he was going home. Plaintiff said that he felt guilty because he was working on Sunday.

Plaintiff also said that, after BHC terminated his employment, he worked three months at Jersey Eagle Sales Company. He began his work week there at 8:00 p.m. on Sundays. He worked twelve Sundays at Jersey Eagle. Then, through an employment agency, plaintiff obtained a job at Goya Foods. There, plaintiff's work week began on Sundays at about 8:00 p.m. Plaintiff worked fourteen Sundays at Goya Foods. Plaintiff stated that he did not want to work on Sundays but he had been compelled to do so because of economic conditions.

Plaintiff stated that he wanted BHC to accommodate his religious beliefs by allowing him to work on days other than Sundays. He said that he had not been offered the option of working part of the day on Sunday. He explained that he would have refused such an offer had it been made.

At his deposition, Gary testified that he offered to adjust plaintiff's work schedule so that plaintiff could go to church on Sundays and begin working thereafter. According to Gary, plaintiff refused the offer. Gary warned plaintiff that he would be disciplined if he refused to work on Sundays, and plaintiff replied that he did not care. Gary stated that he fired plaintiff, rather than disciplining him, because of plaintiff's attitude and the words he used.

On January 6, 2010, defendants filed a motion for summary judgment. In a certification submitted in opposition to the motion, plaintiff stated that on Saturday, February 16, 2008, he met with Gary and Kurt. He explained that he would not work on Sunday because it would conflict with his religious practices. He told Gary that Kurt had allowed him to work overtime on days other than Sunday that week "in exchange for a disciplinary notice." Plaintiff stated that, at the meeting, Gary and Kurt did not attempt "to accommodate [his] religious observance by finding someone else to work in [his] place, or to come up with any other solution."

Plaintiff also stated that, after BHC terminated his employment, Jersey Eagle offered him a job working five days a week, with a shift beginning on Sunday evening at 9:00 p.m. Plaintiff said that he accepted the position because he "was desperate to find work." He stated, "[s]ince my observance of the Sabbath on Sunday would end at dusk, I did not view the acceptance of this position and/or shift as a conflict; nor was I in a position to negotiate."

Plaintiff additionally said that, after working at Jersey Eagle, he found a job at Goya Foods, with a shift beginning on Sunday evenings at approximately 8:00 p.m. Plaintiff stated that he accepted this position "as [his] observance of the Sabbath would not have conflicted with [this] work schedule."

The trial court considered defendants' motion on February 5, 2010, and rendered a decision from the bench on that date. The court found that plaintiff's LAD claims failed because he did not have a sincerely held religious belief that precluded him from working on Sundays. The court additionally found that, under the circumstances, defendants did not have an obligation to accommodate plaintiff's religious beliefs. In addition, the court determined that plaintiff failed to establish a basis for imposing personal liability upon Kurt. The court filed an order dated February 5, 2010, memorializing its decision.

On February 23, 2010, defendants filed a motion for sanctions pursuant to Rule 1:4-8. Defendants asserted that plaintiff's complaint was frivolous and plaintiff's counsel had refused to withdraw the complaint despite defendants' timely request that he do so. The court considered the motion on March 19, 2010. In a decision placed on the record on that date, the court found that, while the court had previously determined that plaintiff could not prove his LAD claims, his complaint was not frivolous. The court entered an order dated March 19, 2010, denying defendant's motion. This appeal and cross appeal followed.

II.

We turn first to plaintiff's contention that the trial court erred by granting defendants' summary judgment on his LAD claims. The LAD provides in pertinent part that it is unlawful for an employer

to impose upon a person as a condition of obtaining or retaining employment . . . any terms or conditions that would require a person to violate or forego a sincerely held religious practice or religious observance, including but not limited to the observance of any particular day or days or any portion thereof as a Sabbath or other hold day in accordance with the requirements of the religion or religious belief, unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's religious observance or practice without undue hardship on the conduct of the employer's business.

[N.J.S.A. 10:5-12(q)(1).]

In this case, plaintiff alleges that BHC required him to work on Sundays as a condition of his continued employment. He claims that by imposing such a condition, BHC compelled him to forego a sincerely held religious practice or observance. Furthermore, plaintiff claims that BHC failed to reasonably accommodate his religious observance or practice by allowing him to work overtime on days other than Sundays, and that such an accommodation would not impose an undue hardship on BHC's business.

As we stated previously, the trial court ruled that plaintiff's LAD claims failed because he could not establish that his refusal to work at BHC on Sundays was based on a sincerely held religious practice or observance. Plaintiff contends that the court erred by resolving this fact issue against him as a matter of law. We agree.

Summary judgment should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.

Furthermore, "[i]f there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). A court should not hesitate to grant summary judgment "when the evidence 'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

The trial court found that plaintiff's refusal to work on Sundays was not due to a sincerely held religious practice or observance. The court based this finding on the fact that, after BHC fired plaintiff, he worked numerous Sundays for other employers. We are convinced, however, that a reasonable jury could find that plaintiff's refusal to work Sundays at BHC was the result of a sincerely held religious belief, notwithstanding the fact that plaintiff worked on Sunday for other employers.

Plaintiff stated that he is a "born again" Christian and, as such, he believed that Sundays should be observed as a day of rest. He stated that when he was employed by BHC, he was never required to work on Sundays. He goes to church on Sundays and spends the remainder of the day in seclusion and at prayer. Plaintiff also stated that, although some members of his church work on Sundays, others do not. He said that, prior to refusing to work at BHC on Sunday, February 17, 2008, he had worked only one Sunday and that was more than twenty years ago. In addition, plaintiff explained that after he was fired by BHC, he worked Sundays on shifts that began on Sunday evenings. Plaintiff did not believe that such work was in conflict with his religious convictions. Plaintiff also said he took jobs that required him to work on Sunday evenings due to economic necessity.

In our view, plaintiff's statements were sufficient to raise a genuine issue of material fact as to whether his refusal to work at BHC on Sundays was due to a sincerely held religious practice or observance. The fact that, after his employment at BHC, plaintiff took jobs that required him to work on Sunday evenings raised an issue as to the credibility of plaintiff's assertions regarding his religious beliefs, but that evidence did not provide a sufficient basis for the court to decide as a matter of law that plaintiff's religious convictions are not sincerely held.

Indeed, a question of credibility, like the credibility of plaintiff's assertion regarding his religious practices, and beliefs, should ordinarily be decided by a jury, not the court. "The 'judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Brill, supra, 142 N.J. at 540 (quoting Liberty Lobby, supra, 477 U.S. at 249, 106 S. Ct. at 2511, 91 L. Ed. 2d at 212). Here, the evidence established that there was an issue for trial that could not be resolved on summary judgment.

The decision in Patrick v. LeFevre, 745 F.2d 153 (2d Cir. 1984), is instructive. There, a prisoner in the New York State correctional system petitioned for recognition of an organization as a religious group in the prison. Id. at 155. The correction officials denied the petition on the ground that the organization was not a recognized religious group. Ibid. The prisoner filed an action alleging that the correction authorities violated his rights under the First Amendment to the United States Constitution. Id. at 156. The trial court granted summary judgment in favor of the defendants, and the prisoner appealed. Ibid.

The Court of Appeals held that summary judgment should not have been granted. Ibid. The court stated that, in considering the plaintiff's First Amendment claim, the judiciary's role is not to assess the verity of a person's religious beliefs but to instead determine whether the individual's beliefs were sincerely held. Id. at 157. The court observed that "where subjective issues regarding a litigant's state of mind, motive, sincerity or conscience are squarely implicated, summary judgment would appear to be inappropriate and a trial indispensable." Id. at 159.

The court pointed out that the correction officials had presented evidence showing that the plaintiff's affiliation with the organization was "short lived." Ibid. The court stated that there were inconsistencies in the plaintiff's deposition testimony regarding the organization and the number of its adherents in the prison, as well as evidence indicating that the organization had a "disdain for formal accoutrements of religious worship[.]" Ibid.

The court stated, however, that the sincerity of the plaintiff's belief was a material issue of fact that remained "squarely in issue." Id. at 159. In the court's view, circumstantial evidence presented challenging the plaintiff's credibility only underscored the factual issues in the case and "the need for a full factual exposition at which these disputes [could] ultimately be resolved." Id. at 160. The same is true in this case.

In support of its decision to grant summary judgment in this case, the trial court invoked the "sham affidavit" rule, which allows a court to "disregard[] an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony" and "the contradiction is unexplained and unqualified by the affiant." Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002). However, the doctrine does not apply "where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement." Id. at 201-02.

Plaintiff essentially testified that he would not work at all on Sundays because of his religious practices and observances. However, in the certification submitted in opposition to defendants' summary judgment motion, plaintiff explained that his observance of the Sabbath ended at dusk, and he did not believe working at jobs that began after dark conflicted with his religious beliefs. Plaintiff further explained that he took jobs that required him to work on Sunday evenings out of economic necessity.

The trial court correctly found that some of plaintiff's statements in his certification were inconsistent with his deposition testimony. We are not convinced, however, that the inconsistencies warranted application of the "sham affidavit" doctrine. In his certification, plaintiff provided an explanation for the inconsistencies, and a jury could find that plaintiff's explanation is reasonable.

III.

Plaintiff also argues that the trial court erred by dismissing his claims against Gary and Kurt Borne. Plaintiff contends that the LAD allows the imposition of personal liability against these defendants without regard to whether they "aided and abetted" BHC in the alleged unlawful discrimination.

In this case, plaintiff's LAD claims are premised upon N.J.S.A. 10:5-12(q)(1), which provides that it is unlawful for an "employer" to impose a term or condition of employment that would require the employee "to violate or forego a sincerely held religious practice or religious observance" unless the employer establishes that it is "unable to reasonably accommodate the employee's religious observance or practice without undue hardship on the conduct of the employer's business." Ibid. The LAD also provides that it is unlawful for "any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." N.J.S.A. 10:5-12(e).

The LAD defines the term "employer" to include "persons" as defined in N.J.S.A. 10:5-5(a), as well as "the State, any political or civil subdivisions thereof, and all public officers, agencies, boards or bodies." N.J.S.A. 10:5-5(e). The term "person" is defined in N.J.S.A. 10:5-5(a) to include "one or more individuals, partnerships, associations, organizations, labor organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and fiduciaries."

Plaintiff's "employer" was BHC. Therefore, Gary and Kurt may only be liable pursuant to N.J.S.A. 10:5-12(e) for BHC's alleged unlawful acts if they aided or abetted BHC in violating the statute.

To establish that a "person" is liable under N.J.S.A. 10:5-12(e) for an "employer's" violation of the LAD, a plaintiff must show that the person: (1) aided the employer in performing a wrongful act that caused an injury; (2) was generally aware of his role as part of an illegal or tortious activity at the time he provided assistance; and (3) knowingly and substantially assisted the employer in the principal violation of the LAD. Tarr v. Ciasulli, 181 N.J. 70, 84 (2004).

We are convinced that plaintiff presented sufficient evidence to raise a genuine issue of material fact as to whether Gary aided or abetted BHC in the alleged violation of N.J.S.A. 10:5-12(q)(1). Gary is President of BHC. Plaintiff testified that he met with Gary and explained that he would not work on Sunday February 17, 2008, because that would conflict with his religious beliefs. Plaintiff said that Gary did not make any effort to accommodate his religious practices, although Gary testified that an offer was made to allow plaintiff to come to work after he attended church services. Plaintiff claims that Gary terminated his employment because plaintiff refused to work on Sunday. In our view, this evidence provides a basis upon which a reasonable jury could find that Gary aided and abetted BHC in the alleged violation of the LAD.

Similarly, plaintiff presents sufficient evidence to support a claim against Kurt for aiding and abetting BHC in the alleged violation of the LAD. Kurt is Vice-President of BHC. Reardon informed Kurt that plaintiff had refused to work on Sundays for religious reasons. Although Kurt did not terminate plaintiff's employment at the time, he allegedly made no effort to accommodate plaintiff's religious practices and told Reardon that plaintiff would be "written up" for refusing to work on Sundays. In addition, Kurt was present in the room and did not intercede when Gary fired plaintiff for refusing to work on Sundays, despite plaintiff's claim that it would be contrary to his religious practices and observances. Based upon this evidence, a reasonable fact-finder could conclude that Kurt aided and abetted BHC in the alleged unlawful conduct.

IV.

In their cross-appeal, defendants argue that the trial court erred by denying their motion for the imposition of sanctions pursuant to Rule 1:4-8 on the ground that plaintiff's complaint was a frivolous pleading that plaintiff's counsel had refused to withdraw, despite a timely demand that he do so. The trial court found that plaintiff's complaint could not be characterized as frivolous under Rule 1:4-8. We agree.

Reversed on the appeal and remanded for further proceedings in conformity with this opinion; affirmed on the cross-appeal.

1 In his complaint, plaintiff erroneously identified defendants as Kurt Barnes and Gary Barnes.