MARINA P. DIAZ-PAREDES v. WHOLE FOODS MARKET GROUP, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2391-11T4

MARINA P. DIAZ-PAREDES,

Plaintiff-Appellant,

v.

WHOLE FOODS MARKET GROUP, INC.,

(ITS DIRECTORS, OFFICERS, SERVANTS,

AGENTS, ASSIGNEES, DELEGATES,

MANAGERS, SUPERVISORS, DESIGNEES,

ASSOCIATES, AND/OR EMPLOYEES);

PAULA DIMEGLIO (SUPERVISOR

FOR DEFENDANT WHOLE FOODS);

JOHN DAUENHAUER (SUPERVISOR FOR

DEFENDANT WHOLE FOODS),

Defendants-Respondents.

June 6, 2013

Submitted March 5, 2013 Decided

 
Before Judges Fisher, Alvarez and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9267-09.

Richard S. Mazawey, attorney for appellant.

Proskauer Rose LLP, attorneys for respondents (Matthew D. Batastini, on the brief).

PER CURIAM

Plaintiff Marina P. Diaz-Paredes appeals the December 7, 2011 grant of summary judgment to defendants Whole Foods Market Group, Inc., Whole Foods supervisors Paula DiMeglio and John Dauenhauer, and unidentified employees of the corporation. The order dismissed the remaining count of her complaint1 alleging that defendants' termination of her employment violated New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We affirm.

I

Plaintiff commenced working for Whole Foods in 2000. In 2007, she suffered back problems which eventually required her to undergo spinal surgery. Plaintiff extended her initial twelve-week medical leave from the November 29, 2007 surgery date until March 31, 2008, when she was able to return without restrictions attributable to the surgery. Unfortunately, no openings were then available in the produce department where she had previously worked. Plaintiff was offered a position as a cashier, a reassignment to which she objected because she was concerned about her ability to communicate in the English language. Therefore, she returned to work as an assistant cashier instead, packing groceries and gathering shopping carts.

Defendant offers its employees a twenty percent "team member discount" on all purchases made at the store. Whole Foods sustains a loss on each item bought using the discount. Because it is a substantial benefit to the employee but a loss to the company, the program is administered pursuant to very strict guidelines. These include limiting eligible persons to "team members" and spouses or domestic partners. Spouses or domestic partners are issued individual discount cards only after written application. Employees are strictly forbidden from using their discount card for purchases made by anyone else, even if the purchaser is another qualified team member or eligible spouse or domestic partner. Misuse of the discount card is considered theft resulting in discharge.

Plaintiff was familiar with the policy and understood that "many people" had been discharged for such abuse. The guidelines regarding use of the card were continuously reviewed with all employees at monthly meetings.

DiMeglio, a supervisor, certified that she had discharged approximately three team members who used or attempted to use their card in violation of the employee discount policy. Dauenhauer, the Executive Coordinator of Team Member Services for the northeast region, certified that during his tenure ten employees were discharged for improperly using or attempting to misuse their discount cards. He was unaware of any employee who violated the policy and was not subsequently discharged.

On July 20, 2008, plaintiff, while bagging groceries alongside Fabien Milord, a cashier and assistant team leader, saw her boyfriend, William Capiruso, and her son, approach the register to purchase groceries. Milord rang up the items, after which plaintiff asked him to utilize her discount card. She claimed that her boyfriend was buying groceries for her household, and she asked Milord if she could both pay for the food and use the discount card because the items were for her. Before Milord could respond, Capiruso said he would pay for the groceries.

Dauenhauer was informed of the incident, and advised that plaintiff be placed on immediate administrative leave and discharged. At the meeting regarding her violation of the policy, plaintiff admitted attempting to use the discount card and acknowledged it was improper for her to have done so.

II

Plaintiff's complaint alleged that she was wrongfully discharged, that Whole Foods failed to recognize the extent of her health issues, and that Whole Foods had sabotaged her employment by engaging in harassment tactics. She maintained she was compelled to return to work before obtaining medical clearance, was required to carry heavy boxes, and was initially offered a position at which she would have difficulties because of her limited language skills. Therefore, she alleged, the discharge based on her attempted use of the discount card was pretextual.

The judge gave a very brief explanation for the grant of defendants' motion. Essentially, he concluded that plaintiff had not demonstrated that her termination, grounded on the attempted use of the discount card, was pretextual. The motion judge also noted serious discrepancies between plaintiff's certification and her deposition, and inherent discrepancies within her certification.

On appeal, plaintiff contends the court erred because genuine issues of material fact existed requiring submission of the matter to a jury. Plaintiff also argues that given her disability, she was subjected to a biased and hostile work environment.

Whole Foods in turn seeks dismissal of plaintiff's appeal because of material deficiencies in the brief and appendix. Specifically, Whole Foods urges that plaintiff violated Rule 2:6-1(a)(1) because items submitted to the court on summary judgment are not included in the appendix. Furthermore, plaintiff provided no record references in her statement of the facts as required by Rule 2:6-2(a)(4). Even though Whole Foods's assertions are accurate, no notice of motion for dismissal was filed. In the absence of either a cross-appeal or motion seeking such relief, we will not address the request.

III

In reviewing the grant or denial of summary judgment, we apply the same standard which governs the trial court under Rule 4:46-2(c). Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995). Summary judgment is granted where the record demonstrates "no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010); Brill, supra, 142 N.J. at 540.

We affirm because in this case, it is clear that the evidence is so one-sided that defendants must prevail as a matter of law. Even viewing the record in the light most favorable to plaintiff, the facts are simply insufficient to permit a rational fact-finder to resolve the dispute in her favor.

We evaluate LAD claims under the burden-shifting analysis enunciated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Henry, supra, 204 N.J. at 330. In order to demonstrate a discriminatory discharge, a plaintiff is required to establish she is a member of a protected class, otherwise qualified and performing the essential functions of the job, was terminated, and that the employer thereafter sought similarly qualified individuals for the position. Victor v. State, 203 N.J. 383, 409 (2010). In order to prove the existence of a hostile work environment, a plaintiff must establish that she is in a protected class, was subjected to conduct that would not have occurred but for that protected status, and that it was sufficient to alter the conditions of employment. Ibid.

The mere fact that this plaintiff had restrictions on the amount of weight she could lift before her surgery, and that she obtained additional extensions on her medical leave, does not fulfill those requirements. She was not a member of a protected class.

Plaintiff did not present any evidence at all that defendants perceived her as disabled or that she actually was disabled. Her physician wrote that plaintiff was "a candidate to return to work full-time without any restrictions, by February 27, 2008."2 Plaintiff did not request an accommodation of any type. Therefore her employers had no reason to perceive her as suffering from a disability.

Plaintiff contends for the first time on appeal that she was perceived as having a disability, and that the LAD is therefore implicated. To reiterate, there is no support in the record that plaintiff was perceived as disabled. Plaintiff does not identify any such instance. Furthermore, having failed to previously raise the issue, it cannot be considered at this time. "[O]ur appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)) (internal quotations omitted).

Even plaintiff acknowledged that others had been terminated for violations of the discount card program. She fails to point to any circumstance which cuts against defendants' claim that they strictly adhered to the discount card protocol and fired her because she did not comply. Having failed to present any evidence of discriminatory conduct, plaintiff has not demonstrated that the court erred in its grant of summary judgment.

1 Earlier, following her deposition, plaintiff voluntarily dismissed her other causes of action with prejudice.

2 Note that this is the same physician who indicated in September 2007, prior to the November surgery, that plaintiff should be placed on light duty.