SPENCER ROBINSON v. ARMADILLO AUTOMATION INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SPENCER ROBINSON,

Plaintiff-Appellant,

v.

ARMADILLO AUTOMATION, INC.,

T/A ONYX VALVE CO., JIM

CAMPBELL, and DAVID GARDELLIN,

Defendants-Respondents.

Argued January 4, 2016 Decided July 20, 2016

Before Judges Lihotz and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1143-12.

Daniel B. Zonies argued the cause for appellant.

Anthony Young argued the cause for respondents (Parker Young & Antinoff, LLC and Grueneberg Law Group, LLC, attorneys; Rudi R. Grueneberg and Mr. Young, on the brief).

PER CURIAM

Plaintiff Spencer Robinson, defendant Armadillo Automation, Inc.'s former employee, appeals from the summary judgment order that dismissed his employment discrimination action. He argues the trial court committed two principal errors: first, it found, contrary to the evidence supporting plaintiff's claims, plaintiff had not established a prima facie case of discrimination under either the New Jersey Law against discrimination (LAD), N.J.S.A. 10:5-1 to -49, or the Workmen's Compensation Act (WCA), N.J.S.A. 34:15-1 to -142; and second, it misapplied the summary judgment standard by not viewing the motion record's facts in a light favorable to him as the non-moving party motion. For the reasons that follow, we reverse and remand the matter for trial.

In March 2012, plaintiff commenced this action by filing a three-count complaint alleging defendant, Armadillo Automation, Inc., had violated the LAD by engaging in age and disability discrimination, and the WCA by terminating his employment in retaliation for his having sought workers' compensation benefits for a work-related accident. Defendants filed answers, discovery ensued, and defendants filed a summary judgment motion. We derive the following facts from the motion record.

Armadillo Automation, Inc., t/a Onyx Valve Co. (Onyx), manufactures pinch valves, check valves, and pressure sensor rings, and has approximately thirty employees. Plaintiff began work as a valve technician trainee with Onyx in May 2005, at age sixty. Onyx terminated his employment in August 2011. During his employment, plaintiff worked in the assembly department and was taught to assemble valves and actuators. The valves plaintiff assembled were made of cast iron and ranged from approximately the size of a water bottle to six feet long and two and three-quarters feet wide, and larger.

Plaintiff sat on a stool as he worked. He claimed that when he was hired he disclosed "he had a lower back condition and needed access to a stool to work while seated if possible. He did not have to sit at all times, and had no problem working on large valves which required him to stand. Defendant accommodated plaintiff by providing a stool."

Onyx's vice-president, who interviewed plaintiff for his position, disputed plaintiff's account of the initial interview. According to the vice-president, during the job interview plaintiff "never disclosed any history of physical injuries or physical limitations." Years after Onyx hired defendant in late March or early April 2011 the vice-president noticed plaintiff "was having difficulty standing on his feet all day and perform[ing] his job duties." The vice-president met with the president and requested "we make a provision for [plaintiff] so that he could use a stool in the assembly room."

On April 29, 2011, plaintiff experienced pain in his neck while assembling a valve. According to plaintiff, he reported the injury to Onyx's vice president, who said he would not send plaintiff to a doctor and did not consider the injury a work injury. Plaintiff quoted the vice-president as saying he would not take plaintiff to the hospital unless he was "passed out on the floor or profusely bleeding."

Plaintiff sought treatment and ultimately treated with two physicians. He remained out of work until May 12, 2011, when his treating physician released him to return to work. According to plaintiff, Onyx would not accept the treating physician's release allowing plaintiff to return to work, but instead insisted on plaintiff obtaining a release from his family physician. When plaintiff obtained a release from his family physician, Onyx's president would not accept it without first speaking directly to the doctor. Plaintiff signed a release permitting the president to speak with his family physician.

Defendants' version of plaintiff's injury and its aftermath is markedly different. According to certifications signed by Onyx's president and vice-president, in April 2011 plaintiff complained of extreme back pain.1 The president averred that plaintiff came to his office on April 29, 2011, complained of back pain, and requested to see his family physician; a request the president granted. The vice-president recalled plaintiff had complained of back pain and requested to see his family physician the previous day. On April 29, 2011, the vice-president, president, and assembly department's supervisor met with plaintiff in the vice-president's office. Plaintiff reported he was in extreme pain and unable to work. The vice-president told plaintiff to take time off and seek medical attention; and "we would notify our worker's [sic] compensation carrier of the claim[,] which was done."2

According to the president, when plaintiff returned to work in June 2011, plaintiff "had significant trouble standing and working on the incoming valve orders. He was only able to work on small valves that could be assembled while sitting. The productivity of the department began to suffer significantly with orders back logged resulting in delayed deliveries and angry customers." The president asked plaintiff to be evaluated by his primary care physician "as to his ability to continue to work at the level required by the job description of an 'assembler.'" Plaintiff never completed the evaluation. Onyx's vice-president corroborated these facts in his certification, with the exception of the date plaintiff returned to work, which the vice-president said was May 11, 2011. Both the president and vice-president acknowledged discussing plaintiff's future plans for retirement, "including a plan proposed by Onyx . . . that would keep him employed full-time for a period of six . . . months to a year."

Plaintiff disputed that his productivity had changed following his return to work. He averred that upon his return from work following his injury, the president and vice-president "for the first time ever, took issue with plaintiff's use of a stool, complaining through [the department supervisor] that he was sitting too much, and expressed the intent to take away the stool, forcing plaintiff to stand at all times." According to plaintiff, he was not sitting any more than he sat before returning from his neck injury.

Plaintiff further averred, "at no time while [he] was employed by [Onyx] did he receive any written or oral complaints regarding his productivity, and [Onyx] had no quota system by which productivity was measured." Plaintiff claimed that after his work injury, the president and vice-president had commented "on a number of occasions that he was the only one seen working in the assembly room. After his accident, [he] produced valves, both large and small, at the same rate as he did prior to his work accident." He also claimed that after he was terminated, "he was replaced by two men, indicating if anything that his production was superior."

Plaintiff alleges the president and vice-president asked him if he was of retirement age, and if he had considered working part-time or retiring. He asserts they asked him about retirement "soon after return[ing] to work after his work injury."

On June 20, 2011, Onyx's president sent a memo to plaintiff purportedly memorializing "[o]ver the last few months, you have indicated that you experienced serious back pain from time to time." Stressing the need to safeguard the health and safety of every employee, and seeking to insure plaintiff's daily work routine would not pose a hazard that could cause or aggravate any physical injury, the president requested plaintiff schedule a physical examination with his family physician at Onyx's expense. According to the president and vice-president, plaintiff never scheduled the examination.

The president and vice-president also certified in support of Onyx's summary judgment motion that plaintiff had begun to repeatedly violate company policy by failing to clock out. On more than six occasions, plaintiff allegedly left the company facility during lunch time without clocking out, even though the vice-president had counseled him regarding this violation of company policy.

Plaintiff disputed this allegation. He acknowledged company policy required employees to punch out when they left the building, but claimed the rule was not "strictly maintained," and "[e]veryone at some time or another failed to punch out." Plaintiff noted his bench was next to the time clock so he could see whether employees were punching out or not." Plaintiff also averred there was a period of time the clock did not work properly, and recorded incorrect time. Plaintiff asserted that other than the period during which the time clock did not work properly, his punch cards would have shown that he punched out every day for lunch, with the exception of one day. He further asserted, "during the five years [he] worked for [Onyx], no employee had ever been disciplined, let alone terminated, for failure to properly clock out."

In addition to the conflicting certifications and other documentary evidence, defendants submitted evidence that six other employees had filed workers' compensation claims and had not been retaliated against; and evidence that five employees were sixty years old or older at the time of plaintiff's termination.

The parties do not dispute that plaintiff suffered three adverse employment actions: he did not get a raise on his work anniversary date of May 28, 2011; he was suspended for five days on August 1, 2011; and his employment was terminated during his suspension. Defendants claim they withheld plaintiff's raise due to "the declining productivity and ongoing violations of company policy regarding the failure to punch out at lunch time"; suspended him for again failing to clock out at lunchtime on August 1, 2011; and decided during his suspension to terminate his employment in view of "the overall issues . . . including but not limited to his continued failure to obtain medical clearance and continued violation of the time clock policy."

The trial court granted defendants' summary judgment motion. Plaintiff appeals from the implementing order.

When a party appeals from an order granting summary judgment, our review is de novo and we apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were 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 doing so, we view the evidence in the light most favorable to the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), and review the legal conclusions of the trial court de novo, without any special deference, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Our Supreme Court has recently explained the competing interests in play on summary judgment motions

The summary judgment rule set forth in Rule 4:46-2 "serve[s] two competing jurisprudential philosophies": first, "the desire to afford every litigant who has a bona fide cause of action or defense the opportunity to fully expose his case," and second, to guard "against groundless claims and frivolous defenses," thus saving the resources of the parties and the court. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 541-42 (1995) (quoting Robbins v. Jersey City, 23 N.J. 229, 240-41 (1957)). In light of the important interests at stake when a party seeks summary judgment, the motion court must carefully evaluate the record in light of the governing law, and determine the facts in the light most favorable to the non-moving party. R. 4:46-2(c).

[Globe Motor Co. v. Igdalev, __ N.J. ___, ___ (2016)(slip op. at 19).]

We begin our analysis by noting few if any material facts are undisputed. The disputes begin with plaintiff's interview for a position. He averred that when he was hired defendants initially accommodated his lower back condition by permitting him to work on a stool; defendants averred plaintiff disclosed no injuries or ailments when hired, and did not work while seated on a stool until after returning from his April 2011 injury.

The parties also dispute facts about plaintiff's April 2011 injury and Onyx's reaction to the injury. Plaintiff certified he injured his neck in the April 2011 work-related accident, a claim supported by defendants' loss run; yet, defendants claimed he injured his back. Plaintiff also certified that when he reported his April 2011 work-related injury to Onyx's vice-president, the vice-president said he did not consider plaintiff's injury work-related, plaintiff would not be sent to a company doctor, and plaintiff would not be taken to a hospital unless he was "passed out on the floor or profusely bleeding." Defendants claim plaintiff asked to see his own doctor and they accommodated his request.

Plaintiff also claimed he was released to return to work on May 12, 2011, but defendants refused to accept his treating physician's release and insisted upon him being cleared by his family physician, a request with which plaintiff complied. Onyx's officers gave conflicting accounts about when plaintiff returned to work following the April 29, 2011 accident and claimed that after plaintiff returned to work he had difficulty performing his job, prompting their request that he undergo a physical examination by his family doctor, which he never did. Plaintiff denied being unable to adequately perform his job after returning in May 2011.

Lastly, the parties disputed the facts leading up to Onyx firing plaintiff. Defendants claimed plaintiff violated company policy by failing to clock out for lunch on six occasions. Plaintiff countered he actually failed to punch out one time as the time clock was malfunctioning on other occasions, and during his tenure with the company, the policy requiring workers to punch out was not regularly enforced and no one had ever been disciplined for violating it.

In short, the parties disputed nearly everything but their names. On that conflicting record, without articulating the summary judgment standard, the trial judge granted defendants' motion.

The trial judge also omitted to cite the test for evaluating LAD claims. When considering summary judgment motions in LAD age discrimination cases, New Jersey courts follow the burden-shifting test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677-78 (1973). See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). To establish a prima facie case of age discrimination in a case involving termination of employment, a plaintiff must prove: (1) membership in a protected class; (2) actual performance prior to termination; (3) termination from employment; and (4) the employer's pursuit of someone to perform the same work after the plaintiff's termination. Id. at 450.

If an employee establishes a prima facie case, the burden of production shifts to the employer to rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for the challenged employment action. Id. at 449. Once the employer has done so, "the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Ibid. (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988)). "In the context of summary judgment, to sufficiently discredit the employer's reason, and thus to survive summary judgment, the plaintiff 'must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in' the proffered reason that a factfinder could reasonably find it incredible." Schaivo v. Marina Dist. Development Co., LLC, 442 N.J. Super. 346, 368-69 (App. Div. 2015) (citing Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)), certif. denied, 224 N.J. 124 (2016); see also Zive, supra, 182 N.J. at 455-56 ("Plaintiff does not qualify for a jury trial unless he or she can 'point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action . . . .'") (quoting Fuentes, supra, 32 F. 3d at 764). "Although the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999) (citation omitted).

Here, on their summary judgment motion, defendants did not dispute plaintiff established a prima facie case of discrimination. Rather, they challenged only his proofs attacking as pretextual their stated non-discriminatory reasons for terminating his employment.

Defendants asserted as non-discriminatory reasons for terminating plaintiff's employment his poor performance, lack of productivity, failure to obtain a medical examination, and repeated violation of the company policy concerning clocking out at lunch. To demonstrate pretext, plaintiff averred his performance and productivity had not changed after his return following the April 2011 accident; noted that during his employment he had never received written or oral complaints about his productivity; asserted he had obtained a release to return to work from his family physician; disputed he had repeatedly failed to clock out for lunch; and pointed out that during his tenure no employee had ever been disciplined for failing to clock out for lunch. If plaintiff's proofs are believed at trial, reasonable jurors can readily disbelieve defendants' stated reasons for the adverse employment actions. Accordingly, defendants' summary judgment should have been denied. Zive, supra, 182 N.J. at 455-56.

Defendants argue plaintiff was required to do more than demonstrate Onyx's articulated legitimate reasons for terminating his employment were false; he was also required to demonstrate Onyx was motivated by discriminatory intent. As explained in Fuentes, however,

because the factfinder may infer from the combination of the plaintiff's prima facie case and its own rejection of the employer's proffered non-discriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons, . . . a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.

[Supra, 32 F.3d at 764 (alteration in original) (internal citation omitted).]

In Zive, supra, 181 N.J. at 456, our Supreme Court characterized plaintiff's burden of producing evidence either of pretext or discriminatory motive as "a significant enough burden to relieve any practical concerns over the rule we have limned today." Here plaintiff has met his burden by producing evidence that, if believed, entirely discredits defendants' proffered reasons for terminating his employment.

Defendants also contend plaintiff cannot prevail on his age discrimination claim because he was a member of the protected class when he was hired at age sixty, and because Onyx's president was himself a member of the protected class when he decided to terminate plaintiff's employment. These factors, while considerations for the factfinder, are not dispositive of a summary judgment motion when plaintiff has both established a prima facie case and presented strong proofs the employer's articulated legitimate reasons for the adverse employment action are pretextual.

We turn to plaintiff's disability discrimination claim. The LAD prohibits "any unlawful discrimination against any person because such person is or has been at any time disabled or any unlawful employment practice against such person, unless the nature and extent of the disability reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1. Additionally, "[i]t shall be unlawful for any employer or his duly authorized agent 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.

New Jersey courts have applied the McDonnell Douglas framework when analyzing LAD claims alleging disability discrimination. See, e.g., Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14 (2002). Here, the parties have not focused their appellate arguments on plaintiff's claims concerning disability discrimination and retaliation in violation of the WCA. The same evidence that should have defeated defendants' summary judgment motion as to plaintiff's employment discrimination claim would appear to defeat summary judgment concerning the disability discrimination claim. In fact, there is additional evidence plaintiff adduced concerning his disability discrimination claim: he averred Onyx's vice-president said he would not send plaintiff to a doctor, did not consider plaintiff's injury work-related, and said he would not take plaintiff to the hospital unless plaintiff were "passed out on the floor or profusely bleeding."

Defendants assert in their brief they submitted plaintiff's injury claim to their workers' compensation carrier. They produced a loss run to corroborate that payments were made. This evidence, while relevant to the ultimate issue of whether Onyx discriminated against plaintiff, is by no means dispositive of the issue of whether Onyx retaliated against plaintiff following his return to work. Under the McDonnell Douglas analytical framework, there is sufficient evidence to submit the matter to a fact finder. Similarly, there is amply disputed evidence to submit to the fact finder the question of whether Onyx retaliated against plaintiff in violation of N.J.S.A. 34:15-39.1.

We note there is no evidence on the appellate record to suggest the individual defendants separately argued before the trial court they had no liability under the LAD, as distinguished from the WCA. Nor do we see where the trial court addressed the separate issue of the individual defendants' liability under the LAD. For that reason, we do not address the issue on this appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

For the foregoing reasons, we reverse the order granting summary judgment to defendants and remand this matter for trial.

Reversed and remanded for trial.

1 A "Loss Run" relied upon by Onyx as well as medical records referenced in plaintiff's response to defendants' statement of material facts document plaintiff experienced neck pain, not back pain.

2 According to the loss run, the claim was "reported" on May 8, 2011.