LUIZ MADERA v. ANDERSEN INTERIOR CONTRACTING, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LUIZ MADERA,

Plaintiff-Appellant,

v.

ANDERSEN INTERIOR CONTRACTING, INC.,

ANDERSEN BROTHERS CONTRACTING, INC.,

CORPORATE WOODWORKING, INC., DANIEL

ANDERSEN CONSULTING CORP., PRE-FAB

SYSTEMS, INC., ANDERSEN INVESTMENT

PROPERTIES, INC., DANIEL ANDERSEN,

Defendants-Respondents.

_____________________________________

Argued May 25, 2016 Decided August 31, 2016

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0877-13.

Michael S. Harwin argued the cause for appellant.

Daniel Case Gibbons argued the cause for respondents (Nixon Peabody, LLP, attorneys; Mr. Gibbons, on the brief).

PER CURIAM

Plaintiff Luiz Madera filed a civil action against his former employer Corporate Woodworking, Inc.,1 alleging retaliatory discharge under N.J.S.A. 34:15-39.1, which makes it "unlawful for any employer or his [or her] duly authorized agent to discharge or in any other manner discriminate against an employee as to his [or her] employment because such employee has claimed or attempted to claim work[ers'] compensation benefits from such employer, or because he [or she] has testified, or is about to testify, in any proceeding under the chapter to which this act is a supplement." (Emphasis added). After joinder of issue and engaging in discovery, defendants moved for summary judgment arguing plaintiff did not have any evidence to support his claim of retaliatory discharge under N.J.S.A. 34:15-39.1.

After hearing oral argument and considering the written submissions, Judge Rudolph A. Filko granted defendants' motion and dismissed plaintiff's complaint with prejudice. Plaintiff now appeals arguing he presented "a prima facie case of discrimination for seeking compensatory benefits." After reviewing the record developed before the Law Division, we affirm substantially for the reasons expressed by Judge Filko in his well-reasoned oral opinion delivered from the bench on January 9, 2015.

Because the court dismissed plaintiff's cause of action as a matter of law, our review is de novo, using the same standard used by the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We will review the facts in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). We gather the following facts from the record presented to Judge Filko.

On January 2, 2002, Robert Brennan, Vice-President of Operations for Corporate Woodworking, Inc., hired plaintiff as a fulltime delivery driver. At his deposition, plaintiff described his job as a "helper driver." When asked to explain what he meant by "helper," plaintiff responded: "When I'm not driving, I work in the shop, I help the guys, I clean the shop, I receive deliveries." According to Brennan, plaintiff's job "was to deliver custom wooden cabinets to Corporate Woodworking's customers' site for installation." Brennan testified that plaintiff was never considered or classified as an employee of Andersen Interior Contracting. It is not disputed that plaintiff was at all times an at-will employee.

Scott Slovang, Corporate Woodworking's Controller, certified that "Corporate Woodworking's financial performance was poor" during the time leading to plaintiff's layoff. As a means of allowing plaintiff to work fulltime, Corporate Woodworking allowed plaintiff to make deliveries for Andersen Windows from 2009 to 2012. Slovang characterized this as an "accommodation" to plaintiff because Andersen Interior had three fulltime drivers on its own fleet of delivery trucks. Plaintiff was eventually laid off from his position as driver on January 2, 2013.

When asked at his deposition why he laid off plaintiff, Brennan responded: "[W]e had two full-time drivers, we didn't need two full-time drivers anymore. It was a bad financial year, we had laid off some shop guys previous to that." Later on in the course of his deposition, plaintiff's counsel asked Brennan if he ever asked plaintiff "if he would be willing to take an hourly cut rather than getting laid off." Brennan answered: "No I did not." Plaintiff's counsel did not ask Brennan whether he was aware plaintiff had filed a workers' compensation complaint at the time he decided to lay him off.

Plaintiff filed a civil complaint against defendant on May 6, 2013, claiming that Daniel Andersen, serving in the capacity of president of defendants' companies, "knew" plaintiff "was making a claim for workers['] compensation benefits." Plaintiff claims that Andersen is therefore liable to plaintiff for compensatory damages because "he was involved in the decision making process to terminate" plaintiff. The second count seeks compensatory damages for intentional and malicious interference with plaintiff's economic benefits. The third count seeks punitive damages based on defendants' discrimination against plaintiff for pursuing workers' compensation benefits. The fourth and final count seeks counsel fees and cost of suit.

The following exchange occurred in the course of oral argument on defendants' summary judgment motion

THE COURT: Do you have any evidence that Mr. Brennan knew about the worker's comp claims being filed by your client?

PLAINTIFF'S COUNSEL: I don't have evidence . . .

. . . .

THE COURT: I just want to stay on point because I don't want to get too far ahead of it. You don't have any evidence that Mr. Brennan knew that your client had filed a worker's comp claim before he was fired?

PLAINTIFF'S COUNSEL: No.

. . . .

THE COURT: Do you have any evidence that the company has fired other employees because - -

PLAINTIFF'S COUNSEL: It's irrele - -

THE COURT: Wait. Wait. Wait. Because they have filed or threatened to file workers' comp claims?

PLAINTIFF'S COUNSEL: I don't.

In light of plaintiff's counsel's candid concessions, Judge Filko concluded plaintiff had not made out a prima facie case of retaliatory discharge under N.J.S.A. 34:15-39.1. As an at-will employee, defendants were at liberty to terminate plaintiff's employment at any time, provided the reasons for doing so were not based on invidious discrimination2 or otherwise against public policy as codified by the Legislature under N.J.S.A. 34:15-39.1.

"All employment discrimination claims require the plaintiff to bear the burden of proving the elements of a prima facie case." Victor v. State, 203 N.J. 383, 408 (2010). Here, plaintiff did not overcome this threshold burden of proof. Defendants are entitled to summary judgment as a matter of law.

Affirmed.

1 Although plaintiff also named Andersen Interior Contracting, Inc. as a defendant, the record shows he was originally hired by Corporate Woodworking, Inc. These two companies share common ownership, but claimed to be "completely separate and distinct business entities. Corporate Woodworking "builds and installs custom cabinetry and other millwork." Andersen Interior Contracting operates as a general contractor.

2 See N.J.S.A. 10:5-12(a), which makes it unlawful employment practice, or, as the case may be, an unlawful discrimination

For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, . . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.