M. DAVID CAREY v. NMC GLOBAL CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6042-11T4

M. DAVID CAREY,

Plaintiff-Appellant,

v.

NMC GLOBAL CORPORATION,

Defendant-Respondent.

_______________________________

August 26, 2013

Argued February 26, 2013 Decided

Before Judges Messano, Lihotz and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2182-10.

Paul Castronovo argued the cause for appellant (Castronovo & McKinney, attorneys; Mr. Castronovo, of counsel and on the brief).

Joseph C. DeBlasio argued the cause for respondent (Giordano, Halleran & Ciesla, attorneys; Mr. DeBlasio, of counsel and on the brief; Curtis G. Fox, on the brief).

PER CURIAM

Plaintiff M. David Carey appeals from the grant of summary judgment dismissing his disability discrimination complaint against his former employer, NMC Global Corporation ("NMC").

NMC's motion was predicated upon a release plaintiff signed on the day he was terminated, which was his first day back at work after a two-month long medical leave. The Law Division held that plaintiff signed the release knowingly and voluntarily. We reverse because there existed genuine issues of material fact that should not have been resolved on summary judgment.

I.

Our review of a motion court order granting or denying summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, 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 the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts viewed in a light most favorable to plaintiff. Plaintiff, a high school graduate, was employed as a dispatcher at NMC from July 23, 2007 to February 1, 2010. Prior to working at NMC, he worked as an inspector, dispatcher, terminal operator, and loss control supervisor in the petroleum industry for fifteen years. His job duties as a dispatcher for NMC included: dispatching job responsibilities to field staff; coordinating lab and field activity; monitoring days off and hours (overtime); updating "dispatch" and clients; monitoring performance/compliance of field staff; "checking in" paperwork; entering reports into system; assisting with training; assisting with supply inventory; and working in the field as needed.

Plaintiff claims that, while employed at NMC, he was diagnosed with pneumonia, which led to his authorized, unpaid disability leave, beginning December 21, 2009. He returned to work on February 1, 2010, at which time he was terminated. On the day plaintiff returned from disability leave, Joe Denney, the office manager, and Mahmoud Shwket, vice president of NMC, met with plaintiff and informed him that he was being fired immediately because NMC had replaced him while out on disability leave.

During the discharge meeting, Shwket gave plaintiff a Separation and Release Agreement (the Agreement) for plaintiff to sign. According to plaintiff, Shwket presented the Agreement and explained that he could either sign the Agreement and receive two weeks' additional pay, or choose not to sign it and receive no additional pay. However, either way, his employment was terminated.

When plaintiff received the Agreement, he recognized it as a "legal document," but did not read each page of the Agreement before signing it. He claimed that he was "given" five minutes to sign the agreement, and neither sought nor was given any opportunity to negotiate its terms. He never asked about the contents of the Agreement, and did not ask Shwket or Denney to explain anything in the Agreement. Nonetheless, he initialed each page of the Agreement, and executed the signature block on the last page.

The Agreement contained a waiver and release of claims, and the following acknowledgment, which plaintiff read in its entirety:

16. EMPLOYEE'S ACKNOWLEDGEMENT. EMPLOYEE ACKNOWLEDGES AND WARRANTS THAT HE IS SIGNING THIS AGREEMENT OF HIS OWN FREE-WILL, KNOWINGLY AND VOLUNTARILY, AND THAT HE HAS NOT BEEN COERCED OR THREATENED IN ANY MANNER. EMPLOYEE AGREES THAT HE FULLY UNDERSTANDS IT TO BE A FINAL AND BINDING SEPARATION AND RELEASE AGREEMENT.

Plaintiff did not consult with an attorney before signing the Agreement. Shwket and Denney did not encourage or advise plaintiff to get an attorney before signing the Agreement.

Plaintiff was given a copy of the signed Agreement to take home with him. After he got home, he read the entire Agreement, and concluded that he should have taken it to an attorney before signing. He met with an attorney a few days later.

On February 5, 2010, plaintiff wrote a letter to Shwket, which stated:

I have thought things over and I don't want to accept the two weeks of severance pay offered to me on Monday. I did not know until today that I had the right to talk to an attorney before signing the contract you placed in front of me on Monday.

Please do not deposit the two weeks' pay in my bank account. I don't authorize NMC Global to deposit that money into my account and I don't accept the terms of the severance package you offered to me on Monday.

On that same date, Plaintiff sent a letter to NMC's Parlin office, in which he wrote:

Please do not deposit my two weeks' pay for the pay period ending February 14, 2010 into my bank account. I don't authorize NMC Global to deposit that money into my account and I don't accept the terms of the severance package offered to me Monday.

On February 14, 2010, despite plaintiff's explicit instruction, NMC deposited the money directly into his bank account, and plaintiff was unable to reject the payment because it was transferred electronically. On February 18, 2010, plaintiff sent a check to NMC returning the entire amount deposited in his account.

By way of broader background, in December 2009, NMC came to believe that one of its employees, Zeeshan Amin, was planning to start a competing business by using NMC's confidential information. Amin was discharged, and signed a Separation and Release Agreement, in which he allegedly identified plaintiff as one of the parties in the prospective new business. However, Amin produced no documents to support this allegation against plaintiff, and later explicitly denied ever identifying plaintiff as a participant. Plaintiff explicitly denied having been Amin's prospective partner.

Plaintiff filed a complaint against NMC, Denney, and Shwket in the Law Division, alleging claims under New Jersey's Law Against Discrimination, N.J.S.A.10:5-1 to 49 (LAD) for disability discrimination and retaliation for taking medical leave.1

On June 15, 2012, NMC moved for summary judgment. The judge entered an order granting NMC summary judgment dismissing plaintiff's complaint with prejudice. The judge determined that the agreement containing the release was entered into knowingly and voluntarily.

This appeal followed.

II.

Plaintiff argues on appeal that the motion judge misapplied the summary judgment standard in finding that plaintiff knowingly and voluntarily waived his rights under the LAD. We agree and reverse.

While case law addressing waiver of LAD claims in separation agreements is not extensive, federal courts within the Third Circuit have repeatedly applied the "totality-of-the-circumstances test" to employee waivers of civil rights claims. See, e.g.,; Cirillo v. Arco Chemical Co.,862 F.2d 448, 454 (3d Cir. 1988); Coventry v. U.S. Steel Corp., 856 F.2d 514, 524 (3d Cir. 1988); Martinez v. National Broadcasting Corp., 877 F. Supp. 219, 227 (D.N.J. 1994); Ponzoni v. Kraft General Foods, 774 F. Supp. 299, 314 (D.N.J. 1991), aff'd, 968 F.2d 14 (3d Cir. 1992); Mullen v. New Jersey Steel Corp., 733 F. Supp. 1534, 1543 (D.N.J. 1990). These cases are instructive, because New Jersey courts frequently look to federal law for guidance in interpreting New Jersey's LAD. See, e.g., Grigoletti v. Ortho Pharm. Corp., 118 N.J.89, 97 (1990) ("approving of the use of 'federal anti-discrimination statutes' in general, and Title VII in particular, when interpreting the LAD") (citations omitted)).

Accordingly, we "adopted the totality-of-the-circumstances test used by federal courts to determine the validity of an employee's release of claims against his employer." Keelan v. Bell Communications Research, 289 N.J. Super. 531, 542 (App. Div. 1996) (citing Swarts v. Sherwin-Williams Co., 244 N.J. Super. 170, 176-77 (App. Div. 1990) ("given the statutory goal, the validity of a waiver or release of a claim under the NJLAD must be made with considerations. What those careful considerations are is unsettled in our law. Accordingly, we turn to federal decisional law as a guide for standards appropriate for evaluating a waiver of an unlawful discrimination claim.")).

Favoring a standard more sympathetic to employee interests, the Swarts court adopted a list of six factors delineated by the Third Circuit in Coventry, supra, to determine whether a release is knowing and voluntary:

1) the plaintiff's education and business experience, 2) the amount of the time the plaintiff had possession of or access to the agreement before signing it, 3) the role of plaintiff in deciding the terms of the agreement, 4) the clarity of the agreement, 5) whether the plaintiff was represented by or consulted with an attorney, and 6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.

[Swarts, supra, 244 N.J. Super. at 177 (quoting Coventry, supra, 856 F. 2d at 523).]

The Swarts court also included "[a]dditional factors to be considered[:] [7)] whether an employer encourages or discourages an employee to consult an attorney and [8)] whether the employee had a fair opportunity to do so." Swarts, supra, 244 N.J. Super.at 177 (citing Bormann v. AT&T Communications, Inc., 875 F.2d 399, 403 (2d Cir. 1988), cert. denied, 493 U.S. 924, 110 S. Ct. 292, 107 L. Ed. 2d 272 (1989)); Cirillo, supra, 862 F.2d at 454. These eight factors, however, are not "exhaustive." Swarts, supra, 244 N.J. Super.at 177. For example, the court also considered whether the employee was aware of the rights he was waiving. Id.at 178.

In granting NMC's motion for summary judgment, the motion judge considered the Swarts factors and determined that he was:

satisfied that the factors weigh in favor of a knowing and voluntary signing off on the part of the plaintiff. As I say, some of the factors weigh in favor of it. Some I can't say are against it. I mean, they just don't support the employer probably to the extent that . . . it would overpower or counteract . . . those factors that weigh in favor of the waiver.

. . . .

But if I have to focus on any one thing that supports the view that motion for summary judgment should be granted, I get back to paragraph 16 and paragraph 16 says employee[']s acknowledgment. I read it into the record already. This is in bold, bold type and it is a paragraph that he said he read.

Nevertheless, he went ahead and signed the agreement and accordingly the motion for summary judgment is granted . . . .

In this case, the motion judge clearly addressed the applicable law, but improperly made findings on the factors without regard to the summary judgment standard. After carefully considering the entire record and the arguments in the light of the applicable law, we determine there existed genuine issues of material fact as to whether, under the totality of the circumstances, there was a voluntary and knowing waiver by plaintiff of his LAD discrimination claims.

A.

As to first prong, plaintiff has a high school education and is not as educated as some of the plaintiffs found to have executed a valid release. See, e.g., Cirillo, supra, 862 F.2d at 453 (finding that plaintiff was a "well-educated man"); Ponzoni, supra, 774 F. Supp. at 310 (noting that plaintiff was a very highly educated man with doctorate degrees). His His education and experience, however, are not necessarily dispositive.

For example, in Riddell v. Med. Inter-Ins. Exch., the employee claimed violations of the FMLA and the NJLAD, but had signed a release and claimed not to have understood its terms. The court balanced the employee's lack of a college degree against her work experience and concluded that this factor "does not weigh greatly in favor of one party or the other." 18 F. Supp. 2d 468, 472 (D.N.J. 1998); see also Ponzoni, 774 F. Supp. at 310 (stating that education and experience is a minimal threshold); Pears v. Spang, 718 F. Supp. 441, 446 (W.D. Pa. 1989) (finding plaintiff's high school diploma and attendance at a one-year secretarial school constituted sufficient education and experience to execute a release).

Like Riddell, the evidence supporting the first factor here does not tip for or against a finding that the release was signed knowingly and voluntarily. Plaintiff does not have the benefit of a college education, but his work experience may compensate for this fact.

B.

As to the second prong, plaintiff executed the Agreement during the meeting at which he was terminated, within approximately five minutes of receiving it. He testified that he felt pressured to sign because Shwket was glaring at him. He admitted that he was given no instruction as to when the Agreement needed to be signed. NMC argues that there is no evidence that plaintiff was under a deadline to sign, or that he was denied an opportunity to deliberate.

In Riddell, supra, the employee claimed that she had only three to five minutes to review the document, but the employer claimed that she "could have taken the document home but never asked[,]" although it was not suggested that she take more time to deliberate. 18 F. Supp. 2d at 472. The court concluded that the employee did not have sufficient time to decide whether to sign the release, and that the employer and/or the release itself should have told the employee that she was permitted time to make an informed decision. Id.at 472-73 (explaining "that a few minutes is not enough time for an employee just learning of her termination to knowingly and voluntarily waive her rights to sue.").

Other courts have held that an even longer period of time should be provided. See, e.g., Cook v. Buxton, Inc., 793 F. Supp. 622, 625 (W.D. Pa. 1992) (giving the employee ten days to execute the release was not enough time to permit a terminated employee to deliberate); Keelan, supra, 289 N.J. Super.at 545; Cirillo, supra, 862 F.2d at 453 (noting that one month was "a reasonable time for deliberation"); Swarts, supra, 244 N.J. Super.at 178-79 (holding that eight days was sufficient time for the employee there to review the release for purposes of an LAD waiver).

Accordingly, the weight of precedent on the second factor favors allowing employees significantly more time to sign the release than the few minutes provided here. Here, as in Riddell, the short time that plaintiff had to review the release and decide whether to sign it, even though he failed to ask for more time, supports the existence of a genuine fact issue as to whether the release was knowing and voluntary.

C.

The third prong considers the role of plaintiff in developing the terms of the agreement. SeeCoventry, supra, 856 F.2d at 524-25; see alsoCirillo, supra, 862 F.2d at 454 n.4; Ponzoni, supra, 744 F. Supp.at 312 (holding that plaintiff never sought to discuss or negotiate, he did not establish oppressive atmosphere and so absence of actual negotiation was not strong indicator that release was unknowing or involuntary). "The ability to negotiate suggests that the atmosphere surrounding the signing of the release was not oppressive and thus indicates a voluntary waiver." Riddell, supra, 18 F. Supp 2d. at 473-74; Cirillo, supra, 862 F.2d at 454 n.4 ("The existence of an opportunity to negotiate with respect to a release is a substantial indicia that its execution was knowing and voluntary").

Here, the favorable evidence demonstrated plaintiff was given a "Hobson's choice" in that he could either take the additional two weeks' pay or get nothing at all. Plaintiff asserts that NMC "did not offer [him] any chance to negotiate and he felt that the release was a take-it-or-leave-it situation. His only option was to sign it or to lose all salary and benefits immediately." He did not ask for any increase in the amount of severance pay that was being offered to him, nor did he attempt to negotiate any aspect of the Agreement. In addition, NMC presented no opportunity to negotiate the release or the settlement as a whole. Therefore, a consideration of this factor also raises a fact issue on whether his acceptance of the Agreement was knowing and voluntary.

D.

The fourth prong concerns "the clarity of the agreement." Swarts, supra, 244 N.J. Super.at 177. "A release is more likely to be knowing and voluntary if the employee understood the rights being waived." Riddell, supra, 18 F. Supp. 2d at 473. "In evaluating clarity, one question which may be asked is whether objectively the ordinary employee would know of his rights upon execution of the release. Certainly, a release executed by an employee who is unaware of his rights is not a knowing or voluntary release." Keelan, supra, 289 N.J. Super.at 543.

The release portion of the Agreement states:

3. Employee's Release. In exchange for this foregoing consideration, MARK D. CAREY on behalf of Employee, Employee's heirs, representatives, agents and assigns hereby RELEASES, INDEMNIFIES, HOLDS HARMLESS, and FOREVER DISCHARGES (i) NMC Global . . . from any and all actions, charges, claims, demands, damages, or liabilities of any kind or character whatsoever, known or unknown, which Employee know has or may have had through the effective date of this Agreement.

4. Employee's Release Continued. Without limiting the generality of the foregoing release, it shall include: (i) all claims or potential claims arising under any federal, state or local laws relating to the Parties' employment relationship, including, but not limited to, any claims Employee may have under the Civil Rights Act of 1866, 1964, and 1991, as amended, 42 U.S.C. 1981 and 2000(e); the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. 12,101 et seq.; the Fair Labor Standards Act 29 U.S.C. 201 et seq.; the Worker Adjustment and Retraining Notification Act, 29 U.S.C. 2101, et seq.; the Sarbanes-Oxley Act of 2002, including the Corporate and Criminal Fraud Accountability Act, 18 U.S.C. 1514A; the Employee Retirement Income Security Act, 29 U.S.C. 1101 et seq.; the Family and Medical Leave Act of 1993 as amended, 29 U.S.C. 2601 et seq.; the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq; the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.; (ii) any claims on account of, arising out of or in any way connected with Employee's employment with NMC Global or leaving of that employment; (iii) any claims which could have been alleged in any church or complaint against NMC Global, National Marine Consultants, Inc., or Accurate Cargo Treatment, Inc.; (iv) any claims relating to the conduct of any employee, officer, director, agent or other representative of NMC Global, National Marine Consultants, Inc., or Accurate Cargo Treatment, Inc.; (v) any claims of discrimination, harassment, or retaliation on any basis; (vi) any claims arising from any legal restrictions on an employer's right to separate its employees; (vii) any claims for personal injury, compensatory or punitive damages or other forms of relief; and (viii) all other causes of action sounding in contract, tort or other common law or statutory law basis, including, but not limited to, (a) the breach of any alleged or oral or written contract, (b) negligent or intentional misrepresentation, (c) defamation, (d) wrongful discharge, (e) interference with contract or business relationship, (f) invasion of privacy or related claims, (g) negligent or intentional infliction of emotional distress.

5. Employee's Waiver and Assignment. . . . Employee agrees that with Employee's release of claims in this Agreement, Employee has waived any right Employee may have to recover monetary or other personal relief in any proceeding based in whole or in part on claims released by Employee in this Agreement . . . .

Here, there is no indication in the record that plaintiff understood the rights he was waiving when he signed the Agreement containing the release. Although plaintiff did understand that his employment was at-will, he stated that he did not understand the release: the language of the release was "just foreign to me. A lot of the -- way it's worded." Plaintiff assumed that the title, "Separation and Release Agreement," meant that "they're separating and releasing me from my job."

Plaintiff has raised a fact issue and need for a credibility determination as to whether he was aware of the rights that he was waiving when he signed the release.

E.

The fifth prong asks "whether the plaintiff was represented by or consulted with an attorney." Swarts, supra, 244 N.J. Super. at 177. Plaintiff did not consult with an attorney before signing the agreement, and thus, this factor does not support a knowing and voluntary release.

F.

Under the sixth prong, the fact finder must consider "whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law." Swarts, supra, 244 N.J. Super.at 177. A waiver must be supported by consideration to be enforceable. Riddell, supra, 18 F. Supp 2d. at 474 (finding four weeks of salary to be adequate consideration). The Agreement here provides plaintiff with two weeks' salary after his termination date, "[i]n consideration of the promises contained in the Agreement . . . ."

In Cirillo, the court determined that the release was supported by adequate consideration where "[t]he special allowance given to [plaintiff] and accepted by him in exchange for his Release exceeded the employee benefits to which he was already entitled by $45,624.96." Cirillo, supra, F. 2d at 454-55. There, it was "clear that unless [plaintiff] signed the Release, he would not receive the additional money, but that his ordinary retirement benefits would be unaffected by whether he signed the Release." Ibid.

Here, the record is not clear regarding what benefits other than two weeks' salary, if any,supported the agreement.

G.

Under the seventh factor, courts have emphasized the importance of encouraging an employee to seek legal counsel before signing a waiver or release. Indeed, the onus is on the employer to encourage the employee to consult with an attorney. See Riddel, supra, 18 F. Supp 2d. at 473 ("The important consideration, however, is whether [the plaintiff] was encouraged to consult with an attorney."); Cirillo, supra, 862 F.2d at 454 (finding that "the more important consideration is whether consultation with a lawyer was encouraged, as it was in [Cirillo], rather than whether the plaintiff in fact received the benefit of counsel."); Coventry, supra, 856 F.2d at 524 (placing significance on "the absence from the record of any indication that [plaintiff] was encouraged by [his employer] to consult an attorney prior to the execution of the release or that [plaintiff] did in fact consult with an attorney.").

In Coventry, the absence of assistance of counsel led the court to doubt that the plaintiff had a "meaningful comprehension" of the rights that he was waiving. Id. at 525. Similarly in Riddell, supra, 18 F. Supp. 2d at 473, the court concluded that the employer's failure to encourage the employee to seek counsel "weighs considerably in favor of finding that the Release is invalid."

Here, neither the Agreement nor plaintiff's supervisors told plaintiff that he could seek the advice of an attorney or encouraged plaintiff to get an attorney before signing the agreement. By the same token, neither Shwket nor Denney did anything to discourage plaintiff from taking the Agreement to an attorney.

The release itself did not recommend that plaintiff consult with an attorney. Contraid. at 473; Cirillo, supra, 862 F.2d at 450 (release stated that "you may also want to discuss the following release language with your lawyer"); Ponzoni, supra, 774 F. Supp.at 312 (release explicitly stated that signatory had opportunity to consult with an attorney). Thus, a consideration of the facts support the existence of a material fact issue. While the failure of NMC to encourage plaintiff to seek counsel is not dispositive, seeRiddel, supra, 18 F. Supp 2d. at 473; Mullen, supra, 733 F. Supp.at 1544, it is a factor that weighs against a finding of a knowing and voluntary release.

H.

The final prong asks "whether the employee had a fair opportunity to" consult an attorney. Swarts, supra, 244 N.J. Super.at 177. While "an employee can not be required to hire a lawyer before signing a waiver[,]" a "lack of professional counseling may be a relevant consideration even in a situation where it has been encouraged by the employer[.]" Cirillio, supra, 862 F.2d at 454, 453 (finding that "it should normally suffice for the employer to suggest that the employee may wish to consult an attorney."). But see Coventry, supra, 856 F.2d at 524-25 (where the employer did not suggest either verbally or in writing that an employee consult with a lawyer, the court considered the absence of legal counsel as an additional factor undermining a finding that the waiver was signed knowingly and voluntarily).

Here, plaintiff felt he only had five minutes to sign the document, and did not think to consult an attorney before signing. Plaintiff's allegation that Shwket was "glaring" at him during the meeting, if credible, may weigh against NMC.

III.

Finally, the motion judge improperly dismissed on summary judgment plaintiff's claim for punitive damages.

Punitive damages are available only in "exceptional cases." Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 500-01 (App. Div.), certif. denied, 136 N.J. 298 (1994). Thus, our Supreme Court has identified two essential prerequisites to an award of punitive damages in employment discrimination cases: (1) proof that there was "actual participation by upper management or willful indifference," and (2) proof that the conduct was "especially egregious." Rendine v. Pantzer, 141 N.J. 292, 313-14 (1995); accord Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 113, (1999); Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 274 (2010). Because there is no dispute in this matter about the fact that upper management, i.e., NMC's president, Nabil Kassem (Kassem), actually participated in plaintiff's termination, the sole focus of the inquiry is whether there is a genuine dispute of fact regarding especially egregious conduct.

The test for egregiousness is satisfied if plaintiff has proven "an intentional wrongdoing in the sense of an 'evil-minded act' or an act accompanied by a wanton and willful disregard for the rights of [plaintiff]." Quinlan, supra, 204 N.J. at 274 (quoting Rendine, supra, 141 N.J. at 314; Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49-50 (1984)). Alternatively, a plaintiff can prove conduct is especially egregious if "actual malice" is proven. Quinlan, supra, 204 N.J.at 274 (quoting Herman v. Sunshine Chem. Specialties, 133 N.J.329, 337 (1993)); see alsoBerg v. Reaction Motors Division, 37 N.J. 396, 414 (1962) ("Our cases indicate that the requirement [of willfulness or wantonness] may be satisfied upon a showing that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences."). Factors to consider in this determination are the likelihood the conduct would cause harm, the employer's awareness or disregard for the harm, the employer's behavior after he or she learns the conduct could cause harm, and the duration of the harmful conduct. Quinlan, supra, 204 N.J.at 274 (citing New Jersey Model Civil Instruction 8.61 (Punitive Damages-LAD Claims)).

Here, plaintiff claims that NMC fired him and then engaged in "'trickery and deceit' by contriving a reason (an alleged conspiracy [to harm NMC])" to justify their act. In contrast, NMC alleges Kassem, made the decision to terminate plaintiff because he believed that plaintiff only "claimed to be sick[,]" and because he believed that plaintiff was involved in a conspiracy to form a competitive company against the interest of NMC.

On December 28, 2009, Kassem instructed Leon Wang, NMC's Director of Administration, to terminate plaintiff's employment after he returned from sick leave because Kassem suspected plaintiffwas involved in starting a competitive company, a charge denied by plaintiff. Thus, plaintiff argued that NMC's "upper level management [was] involved in egregious and invidious discrimination[,]" which thereby warrants the award of punitive damages. In granting NMC's motion for summary judgment on plaintiff's claim for punitive damages, the motion judge stated, in part:

I'm satisfied that there is no egregious act, no support for punitive damages . . . . it would appear from the oral argument that the plaintiff seems to suggest that the mere fact that the defendant took -- discharged the plaintiff and of course the plaintiff is claiming it s because of disability, that only seems to constitute a basis for punitive damages.

And maybe I'm being unfair to the plaintiff's attorney in that regard because he talks a lot about the fact that the defendant coming upon apparently a scheme by some of its employees to form a competing company and the fact that defendant was of the opinion that [plaintiff] was part of that and the fact that at this point no one can establish that because one of the principles of this ["conspiracy"] has denied that [plaintiff] was part of it.

Somehow this -- I guess pretext was concocted and therefore -- when I say concocted, it carries conclusion that it was concocted; therefore they met the requirements to claim punitive damages. Actually, the conduct was -- number one, was not egregious. What happened from here and it's clearly undisputed is the fact that they believed Carey was part of it, whether he was or wasn't and I'll assume for purposes of this motion he was not part of it.

But the fact of the matter is that belief and as a result of that belief their termination of plaintiff doesn't constitute egregious conduct. So any claim for punitive damages is out.

Determinations about whether there is sufficient evidence of egregiousness to permit or to support a punitive award are necessarily fact-sensitive. Rendine, supra, 141 N.J.at 316. Accordingly, giving plaintiff all favorable inferences, this issue should not have been decided by the judge, at this stage of the case. See Burg v. State, 147 N.J. Super. 316, 319-20 (App. Div.), certif. denied, 75 N.J. 11 (1977).

Reversed.

1 A claim against Denney and Shwket for aiding and abetting discrimination was later voluntarily dismissed by plaintiff.