Annotate this Case

(NOTE: The status of this decision is Published.)






DOCKET NO. A-1004-11T3













INC., a corporation, and





January 3, 2013


Argued September 19, 2012 - Decided


Before Judges Sabatino and Fasciale.


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-3071-09 and L-6537-09.


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


John T. Coyne argued the cause for respondent Joule Staffing Services, Inc. (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Coyne, of counsel and on the brief; Erin A. Rowin, on the brief).


Jeremy M. Klausner argued the cause for respondents Customized Distribution Services, Inc. and Direct Store Delivery, Inc. (Agostino & Associates, attorneys; Mr. Klausner, on the brief).


In these related appeals,1 plaintiff Ronald R. Peralta contests the trial court's entry of summary judgment in favor of defendant Joule Staffing Services, Inc. ("Joule") and co-defendants Customized Distribution Services, Inc. ("CDS") and Direct Store Delivery, Inc. We affirm.


These are the pertinent facts, which we have considered in a light most favorable to plaintiff as the party against whom summary judgment was granted. See R. 4:46-2(c); see also W.J.A. v. D.A., 210 N.J. 229, 238 (2012); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

This case arises from the course of events following a work-related forklift accident. Plaintiff is a native of Peru who speaks only Spanish. He was forty-seven years old at the time of the accident. When the accident occurred, Joule a staffing agency employed plaintiff as a forklift operator at a warehouse operated by CDS.2

Plaintiff began working for Joule as an at-will employee in 2003. His employment history with Joule had a significant interruption between 2003 and 2006, but between April 2003 and December 2007 plaintiff was placed by Joule in succession at twelve different customer work sites. Some of these work assignments were for months, others were only for a few days. Plaintiff's assignment as a forklift operator for CDS began on November 6, 2007. The assignment was made out of Joule's Passaic branch office.

At 6:25 a.m. on the morning of December 5, 2007, plaintiff was in a forklift accident at a warehouse that CDS owned.3 While attempting to park the forklift, plaintiff struck a pole. According to plaintiff, the accident occurred because of a malfunction with the forklift's accelerator.

Plaintiff spoke with two supervisors at CDS and informed them that accident had occurred. According to plaintiff, one of the supervisors suggested that plaintiff should have a post-accident report "drawn up." Plaintiff agreed, but stated that he first needed to call the person who was picking him up that day to ask that person to wait for him. Plaintiff alleged that, at this point, the other supervisor, Julian Vallejo, said, "No problem, just go ahead, I'll take care of this."

An internal CDS incident report, which was unsigned, indicated that plaintiff did not complain of any injuries. It also stated that "before [plaintiff] could write a statement or answer more questions, he left the office and went home." According to CDS, plaintiff did not follow required post-accident procedures, including submitting to drug testing. Plaintiff, however, contended that no one at CDS had requested him to undertake such drug testing. Plaintiff further contended that he had back pain after the accident, causing him to miss his next shift, which was supposed to begin the evening of the day the accident occurred and end the following morning.

On the morning of December 6, 2007, an e-mail was sent from CDS to Joule informing Joule of the damage that plaintiff's accident caused. The e-mail also advised Joule that plaintiff had failed to follow required post-accident procedures. The e-mail was silent as to plaintiff's physical condition.

That same day, the Operations Manager at CDS, Carlos Guerra, instructed his administrative assistant, Mileny Abaunza, to inform Joule that plaintiff should no longer be assigned to CDS because he had not complied with the requisite post-accident procedures after his forklift incident. Guerra testified that he took this course of action after he "was told that there was an accident. And that the person involved in the accident did not stay to fill out the paperwork."

As described by Michael Wingerter, a manager at CDS, CDS's post-accident policy requires the worker involved to submit to drug testing. According to Wingerter:

When somebody fails to go take a drug test, they're terminating themselves. All we do is notify Joule there's been an accident, he did not go take his employee post-accident drug test . . . by the process involved with, whether it's a full-time employee or whether it's an employee that we bring from a temp agency, they're no longer employed there. . . . Because if you don't take the post-accident drug test, you're admitting guilt.


On December 7, 2007, Frank DeLorenzo, Joule's Safety Transportation Manager, filled out an Employee Incident Report describing plaintiff's accident. The report stated that plaintiff had hit a pole and that he had not been injured. DeLorenzo also completed a Supervisor's Investigation Report that day, stating that plaintiff had left the scene without filling out a post-accident report or submitting to a drug test.

The following Monday, December 10, 2007, plaintiff received a call from the Branch Manager of Joule's Passaic office, Judy Caamano, informing him that he was suspended. Caamano requested that plaintiff come in for an in-person meeting. During the meeting, Caamano asked plaintiff to explain how the accident occurred. She also informed plaintiff that he was suspended because he had not filed the post-accident report at CDS. Caamano then instructed plaintiff to set up an appointment with DeLorenzo.

According to plaintiff, his meeting with DeLorenzo was set for Thursday, December 13, 2007. When plaintiff went to see DeLorenzo that day, he was told that DeLorenzo was not in and he would have to come back the following week. While he was present, plaintiff asked Caamano "if I can make a claim and she said that I had to do it all through [DeLorenzo]." According to plaintiff, "[t]hen I went the following week and I wasn't able to speak with anyone at that point either." After this second failed attempt to meet with DeLorenzo, plaintiff consulted an attorney.

On January 7, 2008, plaintiff's attorney contacted Joule requesting medical treatment for him. Four days later, plaintiff met with DeLorenzo. A statement was prepared through a translator. DeLorenzo noted at that session that plaintiff appeared to be in physical discomfort.

Plaintiff testified that he told DeLorenzo at the meeting that he wanted to be reassigned. According to plaintiff, DeLorenzo agreed to offer him work, "but he never followed through."

On January 17, 2008, plaintiff filed a workers' compensation claim, asserting a workplace injury to his neck and back. As a result of that claim, plaintiff eventually was treated or examined by five doctors. He was also awarded $5000 in compensation, an award which Joule apparently did not appeal.

On January 23, 2008, the PMA Insurance Group advised, based upon a medical evaluation of plaintiff, that plaintiff was medically clear to return to work at full duty as of January 24, 2008. Nevertheless, plaintiff did not receive any further work assignments from Joule. According to Joule, plaintiff had not been terminated but he did not receive any more assignments because of the recessionary downturn in the economy.

Plaintiff subsequently filed a complaint in the trial court against Joule alleging retaliatory termination in violation of the Workers' Compensation Act ("WCA"), N.J.S.A. 34:15-1 to -142, and disability discrimination in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. In that same action, plaintiff also brought a claim against CDS for intentional interference with his economic relationship. After discovery, all defendants moved for summary judgment.

With respect to plaintiff's retaliatory termination claim under the WCA, the trial court initially granted Joule summary judgment on two discrete grounds, reasoning (1) there was no evidence that plaintiff had been terminated, and (2) plaintiff offered no evidence of retaliation or "animus" on the part of Joule. On reconsideration, however, the trial court acknowledged that plaintiff had put forth evidence that may show he was terminated specifically, an uncontested application for unemployment insurance but reiterated its earlier conclusion of no liability because plaintiff did not offer any evidence of retaliatory motive or animus on the part of Joule. The court also dismissed plaintiff's claim of disability discrimination against Joule under the LAD.

As to plaintiff's claim against CDS for tortious interference with his economic relationship, the trial court concluded that there was no evidence that CDS had acted intentionally or maliciously to cause Joule to stop giving him work assignments.

Plaintiff now appeals, alleging that the trial court substantively erred in granting summary judgment to Joule and CDS. Plaintiff maintains there are genuine issues of material fact that, if decided in his favor, could support liability by Joule for retaliation under the WCA and for disability discrimination under the LAD. Plaintiff further contends his proofs of tortious interference by CDS are sufficient to be placed before the jury. As a separate procedural argument, plaintiff asserts that the trial court abused its discretion in considering CDS's summary judgment motion, which had been filed less than thirty days before the scheduled trial date.


We first address the dismissal of plaintiff's claims against Joule for (1) wrongful discharge in alleged retaliation for his filing of a workers' compensation claim under the WCA, and (2) disability discrimination under the LAD. Although the WCA and LAD are separate statutes, plaintiff's claims of disparate treatment under each of their anti-discrimination provisions are appropriately analyzed under the "burden-shifting" evidentiary construct of McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Before performing that evidentiary analysis, a brief overview of the applicable provisions in the WCA and the LAD is warranted.

The WCA states, in relevant part, that it is "unlawful for any employer . . . 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[.]" N.J.S.A. 34:15-39.1. This statutory provision codifies principles recognized under the common law, which deemed it tortious and wrongful for an employer to discriminate against a worker simply because he or she has filed a compensation claim. See Lally v. Copygraphics, 85 N.J. 668, 670-71 (1981).

To establish a prima facie case for retaliatory discharge under the WCA, an employee 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.'" Cerrachio v. Alden Leeds, 223 N.J. Super. 435, 442 (App. Div. 1988) (quoting Galante v. Sandoz, Inc., 192 N.J. Super. 403, 407 (Law Div. 1983), aff'd, 196 N.J. Super. 568 (App. Div. 1984)). Such retaliation may be shown, for example, by proof that an employee who filed a compensation claim and then was discharged had been queried by his supervisor about how his compensation "cases" were going, and who later was told, "if you weren't such a troublemaker you would still have a job here." Cerracchio, supra, 223 N.J. Super. at 440, 443.

An employer's retaliatory conduct is similarly proscribed by the LAD, in instances where such conduct is based upon impermissible classifications such as race, gender, and disability. Specifically, the LAD declares that it is unlawful "[f]or an employer, because of the disability . . . of any individual, . . . to discharge" such a person "unless justified by lawful considerations[.]" N.J.S.A. 10:5-12. The statute covers plaintiffs with actual or perceived disabilities, and does not require a particular level of severity for the disability to place the plaintiff in a protected class. See Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 495 (1982).

The Supreme Court has held that to set forth a prima facie case of discrimination under the LAD, a plaintiff must show that he or she: (1) belongs to a protected class; (2) was performing in the position from which he or she was terminated; (3) nevertheless was fired; and (4) the employer sought someone to perform the same work after he left. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (applying these general elements under the LAD in the context of a discharge specifically based on disability discrimination).

In adjudicating claims of wrongful discharge under the LAD, we have applied the same burden-shifting framework that the United States Supreme Court expounded for Title VII employment discrimination cases in McDonnell Douglas, supra, 411 U.S. at 802-03, 93 S. Ct. at 1824, 36 L. Ed. 2d at 678. See Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 98-99 (1990). Under that framework, once a plaintiff has established a prima facie case, this "gives rise to a presumption that the employer unlawfully discriminated against the applicant. The burden of going forward then shifts to the employer to rebut the presumption of undue discrimination" by offering a legitimate reason for the rejection. Id. at 98. The employer's burden of presenting such a legitimate reason is only a burden of production, not the ultimate burden of persuasion that remains with the plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000); Barbera v. Di Martino, 305 N.J. Super. 617, 634 (App. Div. 1997), certif. denied, 153 N.J. 213 (1998); see also N.J.R.E. 101(b)(1) and (2) (defining these burden-related terms).

Where the employer has presented a legitimate business justification for its treatment of a plaintiff, the presumption of discrimination disappears. DeWees v. RCN Corp., 380 N.J. Super. 511, 523-24 (App. Div. 2005). The employee must overcome the employer's asserted business justification by demonstrating by convincing proof that the employer's reasons were a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2751-52, 125 L. Ed. 2d 407, 422 (1993); Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 462 (2000). A plaintiff can only meet this burden "by persuading the court . . . 'that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1998) (quoting Murray v. Newark Hous. Auth., 311 N.J. Super. 163, 173 (Law Div. 1998)); see also Young v. Hobart W. Grp., 385 N.J. Super. 448, 460 (App. Div. 2005) (noting plaintiff's failure to refute defendants' legitimate business reasons for discharging her).

Although the reported cases under the WCA do not specifically refer to the McDonnell Douglas burden-shifting framework, the logical underpinnings of the WCA's antidiscrimination provisions make it sensible to apply such an evidential framework to WCA-based retaliation claims. The Legislature has not declared that the public policies relating to our workers' compensation laws are any stronger than those advanced by the LAD, or that claims of discrimination under the WCA should require less proof than those asserted under the LAD. Consequently, we use the McDonnell Douglas framework to analyze both of plaintiff's claims against Joule.

Plaintiff maintains that he has presented a prima facie case of retaliation under both the WCA and the LAD. As to the WCA, he asserts that he deserves protected status because he filed a compensation claim against Joule following his forklift accident. As to the LAD, plaintiff contends that his bodily injury from the accident caused him to be disabled and thus similarly protected him from discriminatory treatment by his employer. We accept these assertions, notwithstanding the trial court's perception that plaintiff's back injury was not sufficiently severe to comprise a "disability."

As a key aspect of both of his statutory claims, plaintiff relies upon the element of timing. In particular, he stresses that he was not assigned any more work by Joule after the time that he filed his compensation claim and also after he became disabled. Joule acknowledges that plaintiff was initially suspended for not complying with post-accident procedures. It disputes, however, that plaintiff was ever discharged. Instead, Joule contends that plaintiff remained eligible for additional work assignments after his accident and his return to good health, but that such assignments were not available due to the severe downturn in the economy. After initially agreeing with Joule that plaintiff had, in fact, not been terminated, on reconsideration the trial judge ultimately ruled that this is a genuine factual question because Joule did not oppose plaintiff's application for unemployment compensation benefits.

We do not share the trial court's view that an employer's failure to contest an employee's administrative claim for unemployment benefits should be treated in separate litigation as an implied acknowledgment that its worker had, in fact, been terminated. There are many conceivable reasons why an employer might choose not to contest an employee's claim for unemployment benefits, without necessarily agreeing that the employee has, in fact, been permanently discharged. For example, an employer might assume that the unemployment office itself will fairly administer the claim without the employer undergoing the added expense of participating in a contested proceeding. The employer may also consider the modest benefits at stake in the unemployment case to be relatively inconsequential, and not worth opposing. Or, it is possible that the employer actually desires its employee, who is not currently receiving work assignments, to have the "safety net" of unemployment benefits. To deem such employer acquiescence as competent proof of a termination might well create a perverse incentive for employers to treat their workers more harshly than they would have otherwise and to oppose their unemployment claims, just to stave off an adverse inference in separate litigation. Consequently, we conclude that Joule's failure to oppose plaintiff's unemployment claim here had little or no relevance to the question of discharge in the WCA and LAD matters.

That said, it analytically does not matter here under the McDonnell Douglas framework whether plaintiff was actually discharged by Joule. That is because Joule has presented a legitimate and non-rebutted business justification for not offering additional work assignments to plaintiff after his accident at CDS. This economic justification was set forth in a certification by Bernard Clarkin, Joule's vice president and Chief Financial Officer, which Joule submitted in support of its motion for summary judgment. As Clarkin explained:

Joule maintained a branch office in Passaic, New Jersey that primarily focused on the placement of light industrial temporary employees. Due to the downturn in the economy, there was a decrease in demand for light industrial temporary labor and this aspect of Joule's business continued to deteriorate throughout 2008 and 2009. In direct response to the change in economic conditions, several overhead staff and a branch manager from the Passaic branch officer were laid off. Eventually, the Passaic branch office closed in or about May 2009.


Plaintiff has failed to rebut Clarkin's certification with any legally competent evidence that this justification was a pretext for retaliatory or discriminatory treatment. He has identified no other similarly-skilled forklift operators who received new work assignments from Joule to any job sites other than CDS from the time of his December 2007 accident and the closing of Joule's Passaic branch office in May 2009. Nor has plaintiff identified forklift operators at other Joule branches who were assigned such work during this period of economic recession. At most, plaintiff points out that he had intermittently received several work assignments before December 2007, but that does not mean that additional forklift assignments were actually available after the date when CDS asked Joule to replace plaintiff. Although plaintiff asserts that "Joule remains a viable entity," he does not specifically address Joule's contention that it was forced to retract during the recession, which coincided with the time frame following plaintiff's accident and which culminated with the closure of Joule's branch office in Passaic.

Plaintiff speculates that he was personally singled out by Joule and deprived of work assignments because he had filed a compensation claim and also because he had temporarily injured his back. Such speculation is legally insufficient to prove pretext or retaliatory motive, as required under the McDonnell Douglas framework.

In addition, the mere fact that plaintiff failed to receive more work assignments after his injury at CDS and the filing of his compensation claim does not furnish a sufficient basis to infer that unlawful discrimination or retaliation occurred. Temporal proximity alone is generally insufficient to support an inference of a causal connection as part of a prima facie case of discrimination, unless the timing at issue is "unusually suggestive." Young, supra, 385 N.J. Super. at 467 (2005). Moreover, plaintiff cites no authority that regards such timing as adequate proof that an employer's proffered business justification is pretextual.

The fact that Joule did not reassign plaintiff to work again at CDS is likewise of no moment. As Clarkin's unrebutted certification explains, "Joule customers generally have the right to terminate the assignments of at-will temporary employees placed with that customer by Joule." Those customers, according to Clarkin, "reserve discretion about whether to engage or retain the candidate that Joule supplies to them," and "Joule is powerless to force a particular candidate or employee to remain with a customer." Here, CDS exercised its rights as a customer by instructing Joule that it did not want plaintiff, who had seemingly failed to comply with post-accident procedures, to return to its premises. Joule thus had a non-pretextual business justification for not sending plaintiff back to work at CDS.

We therefore affirm the trial court's decision to grant summary judgment to Joule on plaintiff's claims. There are no genuine and material issues of fact presented on the pivotal question of business justification, either under the LAD or the WCA.4


In this related appeal, plaintiff separately contests the trial court's dismissal of his claim against CDS for tortious interference with his prospective contractual or economic relationships. To establish such a claim under New Jersey law, the plaintiff must prove four elements. First, the plaintiff must show that he was "in 'pursuit' of business. Second, . . . that the interference was done intentionally with the 'malice' . . . . Third, the [plaintiff] must allege facts leading to the conclusion that the interference caused the loss of the prospective gain . . . . Fourth, the complaint must allege that the injury caused damage." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751-52 (1989) (citations omitted). "Malice" in this context is defined to mean that "the harm was inflicted intentionally and without justification or excuse." Id. at 71.

In granting summary judgment to CDS, the trial court reasoned that:

[T]his [c]ourt must concur with the defendant that plaintiff has not provided sufficient facts to support a prima facie cause for tortious interference.


First, as indicated already, plaintiff cannot show that the alleged interference caused the loss of his employment. Second, plaintiff can't prove that the alleged interference was intentional or malicious. In fact, all of the competent evidence appears to prove that [the] comments that were made to Joule were candid and truthful accounts of what occurred after the plaintiff was injured on the work site.


Under New Jersey law[,] a plaintiff's claim for intentional interference with prospective economic advantage is foreclosed when the alleged interference is truthful. [Beck v. Triden, 312 N.J. Super. 335, 353 (App. Div.), certif. denied, 156 N.J. 424 (1998)].


We concur with this analysis. Even affording, as we must, all favorable inferences from the record in plaintiff's favor, he has not offered sufficient legally competent proof that CDS caused him to stop getting work assignments from Joule at other job sites, or that CDS intentionally or maliciously acted with the purpose of rendering plaintiff unemployable.

We recognize that CDS and plaintiff hotly dispute whether plaintiff was ever specifically asked to undergo a drug test at CDS on the date of the accident, or that he actually had been made aware of those post-accident requirements. Even if, for the sake of discussion, CDS was mistaken about these matters, the inescapable truth is that plaintiff was an at-will temporary worker, and CDS had the legal right, as the customer, to tell Joule that it did not want him to return to its facility.

Plaintiff asserts that CDS communicated incorrect information to Joule about his behavior at the job site, and thereby blames CDS for causing his loss of employment. As a matter of law, however, any such misreporting is inconsequential. We agree with the trial court that the record is bereft of proof that CDS acted maliciously or with a deliberate motive to somehow interfere with his future ability to gain work elsewhere. At worst, any CDS misstatements were only negligent or reckless. We also cannot fathom why CDS, as a competitive business, would care if Joule assigned plaintiff to work for other customers. Plaintiff has failed to establish the critical state-of-mind element that Printing Mart requires. Summary judgment was therefore properly granted in CDS's favor.5


1 The appeals were calendared back-to-back and argued in combination. We consolidate the appeals solely for purposes of this opinion.

2 CDS is apparently affiliated with Direct Store Delivery, Inc. and has been represented by the same counsel throughout this litigation. We shall describe them collectively as "CDS" for the balance of this opinion.

3 Because defendant worked a shift that began at night and ended the next morning, there is some confusion in the record concerning the proper dates involved. According to the Internal Incident/Accident Report, the accident occurred at 6:25 a.m. on Thursday, December 6, 2007. However, the trial court and most of the testimony at the depositions adopted the premise that the accident occurred during a shift which began on Tuesday, December 4, 2007 at 10:30 p.m. and ended on Wednesday, December 5, 2007 at 6:30 a.m.

4 Our discussion makes it unnecessary to consider the trial court's discrete observation that plaintiff had failed to prove "animus."

5 We reject without comment plaintiff's procedural argument that the trial court misapplied its discretion under Rule 4:46-1 in entertaining CDS's summary judgment motion, which had been filed less than thirty days before the scheduled trial date. R. 2:11-3(e)(1)(E).