HAROLD HANSEN v. RITE AID CORPORATION
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4750-16T4
HAROLD HANSEN,
Plaintiff-Appellant,
v.
RITE AID CORPORATION
and CRAIG MAURIELLO,
Defendants-Respondents,
and
ECKERD CORPORATION, MICHELLE
CAGA and LISA FORD,
Defendants.
_____________________________
Argued January 11, 2018 – Decided May 2, 2018
Before Judges Haas, Rothstadt and Gooden
Brown.
On appeal from an interlocutory order of
Superior Court of New Jersey, Law Division,
Monmouth County, Docket No. L-4790-08.
Denise Campbell argued the cause for
appellant (Campbell Legal Associates, PLLC,
attorneys; Denise Campbell, on the briefs).
James Bucci argued the cause for respondents
(Genova Burns, LLC, attorneys; James Bucci,
of counsel and on the brief; Peter F. Berk,
on the brief).
PER CURIAM
Plaintiff, Harold Hansen, a sixty-one-year-old gay man,
appealed from a judgment dismissing his complaint after the
first trial in this almost ten-year-old employment
discrimination action resulted in a no-cause verdict in favor of
defendants, Rite Aid Corporation (Rite Aid), Eckerd Corporation,
Craig Mauriello, Michelle Caga, and Lisa Ford. In the first
appeal, we vacated the judgment dismissing his complaint and
remanded for a new trial because we disagreed with the trial
court's barring of certain admissible evidence. Hansen v. Rite
Aid Corp., No. A-2972-13 (App. Div. Jan. 20, 2016) (slip op. at
4).
The second trial ended in 2017 with a verdict in favor of
plaintiff as to his sexual orientation-based discrimination
claims under the New Jersey Law Against Discrimination (NJLAD),
N.J.S.A. 10:5-1 to -49, and a finding of no cause as to his age-
based claims. After the verdict, the trial court granted in
part defendants' Rule 4:40-1 motion for judgment, declared a
mistrial sua sponte, vacated the jury’s verdict in favor of
plaintiff, and ordered a new trial only as to defendant's sexual
orientation-based discrimination claims. The trial court
2 A-4750-16T4
declared the mistrial because it believed evidence presented
during the trial relating to plaintiff's claim of disparate
treatment should not have been admitted and, even if it was
admissible, the trial court did not properly instruct the jury
as to its use.
In this second appeal, plaintiff argues that the trial
court erred in declaring a mistrial because (1) it incorrectly
relied upon federal case law that was not binding on the court;
(2) it gave the proper charge to the jury; and (3) defendants
waived the issue of whether it was proper to present the
disparate treatment evidence to the jury "by failing to object
to evidence of such a comparison over nine years and two
trials." Plaintiff further contends that the judge misapplied
Rule 4:37-2 and Rule 4:40-1 and asserts that the trial court
erred by denying his motion for reconsideration.
For the reasons that follow, we affirm the trial court's
order declaring a mistrial and ordering a new trial, but reverse
its order barring plaintiff from presenting evidence of
disparate treatment.
In our earlier opinion, we summarized the history of
plaintiff's employment with Rite Aid and the basis for his
claims. We stated:
3 A-4750-16T4
Plaintiff . . . began his career in
retail pharmacy in 1973, and continued
thereafter as an employee of defendants
Eckerd Corporation and Rite Aid . . .
ultimately becoming manager of a Rite Aid
store in Spring Lake Heights. In May 2008,
plaintiff's employment was terminated
following an investigation of alleged
shoplifting conducted by defendant Craig
Mauriello, Rite Aid's Loss Prevention
Manager. At all times relevant to this
appeal, defendant Michelle Caga was
plaintiff's immediate regional supervisor,
and defendant Lisa Ford was Rite Aid's
Senior Human Resources Manager.
Plaintiff filed a complaint in September
2008, alleging, among other causes of
action, age, gender, and sexual orientation
discrimination in violation of the [NJLAD]
and defamation.
[Hansen, slip op. at 1-2.]
Plaintiff's complaint alleged that he was treated
differently than his store's younger and heterosexual pharmacy
manager, who was not terminated after a pharmacy department
employee stole prescription drugs from the pharmacy, an area in
which plaintiff had no involvement. At trial, the evidence
established that Caga was plaintiff's supervisor and she
reported to a regional vice president. The pharmacist reported
to a different supervisor, who in turn reported to a different
regional vice president. Plaintiff maintained primary
responsibility for the entire store, including personnel and
loss prevention, except for the pharmacy department, which was
4 A-4750-16T4
under the sole purview of the pharmacist. Mauriello was Rite
Aid's corporate loss prevention representative for both
departments and Ford was the corporate representative
responsible for both departments' human resource issues.
Rite Aid claimed it terminated plaintiff because he did not
follow loss prevention procedures after his discovery of a
shoplifting incident involving a store employee's daughter.1 The
evidence at trial about the pharmacist established that an
employee working in the pharmacy department removed prescription
medication and ten needles from the pharmacy's inventory for her
own use, without the pharmacist knowing and that he failed to
follow company policy when it was brought to his attention.2 The
1 On December 7, 2007, plaintiff hired a woman to work as a
photo technician. Shortly after, plaintiff began to suspect the
woman's daughter of shoplifting. Despite admitting that he had
concerns about the daughter and being informed by two other
employees of her potential shoplifting, plaintiff never reported
her to Caga or to Ford. It was not until a customer’s wallet
was stolen in January 2008 that plaintiff reported the daughter
to the police and also to Mauriello. According to defendants,
it was plaintiff’s disregard of the daughter's shoplifting that
formed the basis for his termination.
2
Defendants, having lost an earlier motion for summary judgment
seeking to bar plaintiff's disparate treatment assertions, never
objected to the introduction of the evidence regarding the
pharmacist and the theft in the pharmaceutical department.
Defendants believed that their denial of summary judgment in the
previous trial precluded them from making the objection in the
second trial. However, in the first trial, on November 26,
2013, the trial court granted defendants' motion in limine,
(continued)
5 A-4750-16T4
pharmacist also failed to take corrective action when the
employee showed up to work in a "'drugged' state[.]" The same
pharmacy employee also stole drugs to give to the store
employee's daughter who had shoplifted from the front end. The
pharmacy employee also took beverages, bags of potato chips, and
makeup from the front end of the store, but plaintiff was
unaware of these activities.
After the presentation of evidence in the second trial,
defendants moved for a directed verdict pursuant to Rule 4:37-
2(b),3 and for judgment pursuant to Rule 4:40-1.4 Defendants
argued plaintiff's disparate treatment claim failed as a matter
(continued)
precluding plaintiff from "introducing witness testimony and
other evidence relating or otherwise referring to Rite Aid’s
[subsequent] 2010 investigation of the . . . pharmacy." We
glean from the record that Rite Aid conducted an investigation
of the pharmacy department in 2010 relating to theft that
occurred in that department from 2007 through 2010 by another
technician, however no evidence of that investigation was
presented to the jury at trial. We, like the trial judge, do
not rely on that evidence in making our determination.
3 Rule 4:37-2(b) allows a defendant to move at the end of
plaintiffs' case "for a dismissal of the action or of any claim
on the ground that upon the facts and upon the law the plaintiff
has shown no right to relief."
4 Rule 4:40-1 permits a party to make "[a] motion for judgment,
stating specifically the grounds therefor, . . . either at the
close of all the evidence or at the close of the evidence
offered by an opponent."
6 A-4750-16T4
of law because he offered no evidence that he and the pharmacy
manager were similarly situated. The court heard oral argument,
denied defendants' motion for directed verdict, but reserved on
the Rule 4:40-1 motion in accordance with Rule 4:40-2.5
In the trial court's ensuing jury instructions, it did not
charge the jury on how to consider the evidence supporting
plaintiff's disparate treatment claim. After the jury returned
a verdict in favor of plaintiff, the trial court, sua sponte,
declared a mistrial, and dismissed plaintiff's claim of
disparate treatment, placing its reasons on the record on April
3, 2017.
Relying upon Lehman v. Toys "R" Us, Inc.,
132 N.J. 587
(1993), the trial court turned to federal case law to determine
the impact of its admission of disparate treatment evidence.6
Finding persuasive the analysis discussed in a Third Circuit
5
The Rule permits a court to "reserve decision . . ., submit
the case to the jury and then decide the motion either before or
within [ten] days after the verdict . . . . The court may enter
judgment in accordance with the motion or in the interest of
justice order a new trial." R. 4:40-2(a).
6
The trial court observed that there are no published New
Jersey state cases regarding the standard for a disparate
treatment claim for an employee who was terminated. According
to the court, the closest case on point, Peper v. Princeton
University Board of Trustees,
77 N.J. 55 (1978), dealt with
disparate treatment in regard to one employee being promoted
over another due to alleged discrimination.
7 A-4750-16T4
case, Wilcher v. Postmaster General, 441 F. App'x 879, 882 (3d
Cir. 2011), the trial court explained that disparate treatment
evidence was admissible to prove that an employer's proffered
reasons for terminating an employee are "a pretext for
discrimination[.]" The court stated that plaintiff
may show that [defendant] has previously
discriminated against him, that [defendant]
has discriminated against other persons
within his protective class, or within
another protective class or that [defendant]
has treated more favorably similarly
situated persons not within the protective
class. . . . A determination of whether
employees are similarly situated takes into
account factors such as the employee's job
responsibilities, the supervisors and
decision-makers, and the nature of the
[misconduct.]
Applying that standard, the court concluded that the
pharmacy manager in plaintiff's case was not an appropriate
comparator for plaintiff because the circumstances surrounding
the subject thefts and the pharmacist and defendant's job
responsibilities were vastly different. The court relied upon
the fact that the subject thefts were different in that one was
committed by an employee and unlike plaintiff's situation,
"there [was] no evidence . . . that [the pharmacy manager] knew
that [the employee] was stealing."
Also, the court found their jobs to be "very different" and
that the pharmacist's obligation to prevent theft by an employee
8 A-4750-16T4
was "very different from what was going on with reference to
the . . . circumstances with" plaintiff. The court noted that
under Rite Aid's policies, plaintiff failed to take action when
he learned about the shoplifting, while the pharmacist failed to
"enact drug testing after [the employee] was found to be
stealing, [or] after she came in looking somewhat under the
influence . . . ." The trial court concluded that "the nature
of the misconduct engaged in [was] completely different" and
plaintiff and the pharmacist did not "have the same
supervisor[,]" but even if they did "for purposes of loss
prevention, . . . in terms of the employee's job
responsibilities . . . in no way would anyone in . . . a million
years be able to say that [plaintiff] had the obligation to
prevent the theft of prescription drugs."
Because of the differences found between plaintiff and the
pharmacy manager, the court determined that it should not have
allowed the jury to consider the evidence of disparate
treatment. Moreover, even if the evidence was admissible, the
trial court should have charged the jury as to the findings it
was required to make before determining plaintiff proved
disparate treatment. The court stated:
[T]he jury absolutely would have had to have
been given an instruction along the
lines, . . . . If you determine that the
9 A-4750-16T4
job responsibilities of [plaintiff] and [the
pharmacy manager] were substantially
similar, that they had the same supervisors,
or that . . . Mauriello acted as the
supervisors for both, and that the nature of
the misconduct engaged in, that's alleged
against [the pharmacy manager], as against -
- alleged against [plaintiff], that they are
substantially similar. Without giving the
jury an instruction on that, they were
permitted to hear the evidence, consider the
evidence, and . . . basically, in a sense,
they were told, its disparate treatment[.]
The day after placing its reasons on the record, the trial
court supplemented its decision with a written statement of
reasons. In its written decision, the court explained that even
if it had instructed the jury to not consider the disparate
treatment evidence,
the amount of evidence and argument
presented by plaintiff at trial on the
disparate treatment claim was substantial,
and thus the court does not believe that the
issue could have been addressed with an
instruction to the jurors that the testimony
and argument had been stricken and that they
should disregard the evidence and argument
presented.
It also reiterated its conclusion that even if the evidence
was admissible, "[t]he lack of a jury charge on the issue,
specifically instructing the jury on how to determine whether in
fact plaintiff had been treated differently than others, and
whether those others were similarly situated, results in a jury
verdict that constitutes a miscarriage of justice." It again
10 A-4750-16T4
identified the factors it discussed from Wilcher as being
appropriate to this case and observed they were also addressed
in Ewell v. MBA Properties, Inc.,
94 F. Supp. 3d 612 (D.N.J.
2015). The court ordered that the matter be retried without
reference to any disparate treatment claims "on the claim of
sexual orientation discrimination against defendant Rite Aid,
and on the claim of aiding and abetting sexual orientation
discrimination against defendant . . . Mauriello." The court
determined that, as to the remaining issues, a retrial was not
necessary.
According to the court, there was no reason to retry the
issues of "age discrimination . . . against Rite Aid, as well as
the aiding and abetting claims against the three individual Rite
Aid employees [or against] Caga . . . Ford, [or the] two
individual Rite Aid employees, [that they] aided and abetted in
the sexual orientation discrimination by Rite Aid." Plaintiff
moved for reconsideration, seeking an order vacating the sua
sponte declaration of a mistrial, reinstating the jury's
verdict, and directing immediate jury selection and a trial on
punitive damages. The trial court denied the motion and we
granted leave to appeal.
The thrust of plaintiff's argument on appeal is that the
trial court abused its discretion by declaring a mistrial
11 A-4750-16T4
because it properly instructed the jury, improperly relied upon
a federal case addressing disparate treatment, and failed to
recognize that defendants did not object to the plaintiff's
disparate treatment over the course of two trials.
We disagree with plaintiff's argument that the court erred
in declaring a mistrial and ordering a new trial because the
jury was clearly not properly instructed as to plaintiff's
disparate treatment claim. We find merit, however, to
plaintiff's contention that the trial court mistakenly granted
defendant's Rule 4:40-1 motion because we conclude it improperly
conducted a weighing of the evidence in its consideration of
defendants' motion.
We begin by addressing the court's declaring a mistrial.
Rule 1:7-5 allows a trial court "at every stage of the action,
[to take] notice [of] any error of such a nature as to have been
clearly capable of producing an unjust result, even though such
error was not brought to its attention by a party." Under the
Rule, "a trial court has a discretionary range . . . to grant a
mistrial whether on its own motion or otherwise." State v.
Rechtschaffer,
70 N.J. 395, 406 (1976) (citations omitted).
"Whether an event at trial justifies a mistrial is a decision
'entrusted to the sound discretion of the trial court.'" State
12 A-4750-16T4
v. Smith,
224 N.J. 36, 47 (2016) (quoting State v. Harvey,
151 N.J. 117, 205 (1997)).
Despite that discretion, mistrials should only be declared
"with the greatest caution, under urgent circumstances, and for
very plain and obvious causes." State v. Loyal,
164 N.J. 418,
436 (2000) (citation omitted). Accordingly, trial courts should
exercise their discretion to grant a mistrial "only in those
situations which would otherwise result in manifest injustice."
Rechtschaffer,
70 N.J. at 406 (citations omitted); see also
Boryszewski v. Burke,
380 N.J. Super. 361, 391 (App. Div. 2005)
("Jury verdicts should be set aside in favor of new trials only
with great reluctance, and only in cases of clear
injustice. . . . Neither trial nor appellate courts may grant a
new trial unless it clearly appears there was a miscarriage of
justice." (citations omitted)).
In our review, we will defer to a trial court's decision to
declare a mistrial under Rule 1:7-5, "absent an abuse of
discretion." See Harvey,
151 N.J. at 205 (citing State v.
DiRienzo,
53 N.J. 360, 383 (1969)); see also Boryszewski,
380 N.J. Super. at 391 ("Appellate courts should give considerable
deference to a trial court's decision to order a new trial
because 'the trial court has gained a "feel for the case"
13 A-4750-16T4
through the long days of the trial.'" (quoting Lanzet v.
Greenberg,
126 N.J. 168, 175 (1991))).
Applying our deferential standard of review, we conclude
the trial court did not abuse its discretion by declaring a
mistrial because it did not instruct the jury as to how it
should analyze the disparate treatment evidence plaintiff
introduced at trial.
"Appropriate and proper charges to a jury are essential for
a fair trial." Reynolds v. Gonzalez,
172 N.J. 266, 288 (2002)
(quoting State v. Green,
86 N.J. 281, 287 (1981)). They
"outline the function of the jury, set forth the issues,
correctly state the applicable law in understandable language,
and plainly spell out how the jury should apply the legal
principles to the facts as it may find them . . . ." Ibid.
(alteration in original) (quoting Velazquez v. Portadin,
163 N.J. 677, 688 (2000)). "A charge is a road map to guide the
jury, and without an appropriate charge a jury can take a wrong
turn in its deliberations . . . . [T]he court must explain the
controlling legal principles and the questions the jury is to
decide." N.Y.-Conn. Dev. Corp. v. Blinds-To-Go (U.S.) Inc.,
449 N.J. Super. 542, 557 (App. Div. 2017) (alterations in original)
(quoting Das v. Thani,
171 N.J. 518, 527 (2002)). "The failure
to tailor a jury charge to the given facts of a case constitutes
14 A-4750-16T4
reversible error where a different outcome might have prevailed
had the jury been correctly charged." Reynolds,
172 N.J. at 289
(citing Velazquez,
163 N.J. at 688). "Therefore, '[e]rroneous
instructions are poor candidates for rehabilitation as harmless,
and are ordinarily presumed to be reversible error.'" Das,
171 N.J. at 527 (alteration in original) (quoting State v. Afanador,
151 N.J. 41, 54 (1997)).
"The first step in assessing the sufficiency of a contested
jury charge . . . requires an understanding of the legal
principles pertinent to the jury's determination." Estate of
Kotsovska ex rel. Kotsovska v. Liebman,
221 N.J. 568, 592
(2015). In this case, plaintiff presented evidence of the
pharmacy manager's disparate treatment in response to Rite
Aide's explanation for terminating plaintiff's employment.
Whether that disparate treatment occurred and proved Rite Aid's
explanation was a pretext for discrimination was pertinent to
the jury's determination.
In NJLAD cases, a plaintiff is entitled to offer evidence
"whether unequal treatment has occurred, intentionally or as a
result of a policy's impact on members of a protected group,
[through] two approaches [that] have been generally
accepted. . . . -- disparate treatment and disparate impact --
and we acknowledge both as cognizable under the [NJ]LAD."
15 A-4750-16T4
Gerety v. Atl. City Hilton Casino Resort,
184 N.J. 391, 398
(2005) (citing Peper,
77 N.J. at 81-82). Disparate treatment is
defined as where "[t]he employer simply treats some people less
favorably than others because of their race, color, religion,
sex, or national origin." Ibid. (quoting Peper,
77 N.J. at 81-
82). In order to establish a claim for disparate treatment
under the NJLAD:
[T]he plaintiff must demonstrate that he or
she (1) belongs to a protected class; (2)
applied for or held a position for which he
or she was objectively qualified; (3) was
not hired or was terminated from that
position; and (4) the employer sought to, or
did fill the position with a similarly-
qualified person.
[Id. at 399 (citing Andersen v. Exxon Co.,
89 N.J. 483, 492 (1982)).]
After a plaintiff demonstrates the four elements
establishing a prima facie case, the "burden then shifts to the
employer to prove a legitimate, non-discriminatory reason for
the employment action." Ibid. (citing Andersen,
89 N.J. at
493). If the employer meets that burden, the plaintiff has an
opportunity to show that the employer's purported reason is
merely pretext.
7 Ibid.
7
"In determining whether members of the classes protected by
the [NJ]LAD have been subjected to unlawful discrimination in an
employment setting, we have looked to 'the substantive and
(continued)
16 A-4750-16T4
"Evidence of pretext sufficient to permit the employee to
reach a jury may be indirect, such as a demonstration 'that
similarly situated employees were not treated equally.'" Jason
v. Showboat Hotel & Casino,
329 N.J. Super. 295, 304 (App. Div.
2000) (citations omitted). "An inference of discrimination may
arise if similarly situated employees [but] of a different
[sexual orientation] received more lenient treatment than that
afforded plaintiff." Ewell,
94 F. Supp. 3d at 624 (citing
Simpson v. Kay Jewelers,
142 F.3d 639, 645 (3rd Cir. 1998)).
Plaintiff must present comparator evidence sufficient to prove
that he or she is "similarly situated" to his or her
comparators, and that these employees have been treated
differently or favorably by their employer. See Williams v.
Morton,
343 F.3d 212, 221 (3d Cir. 2003); Simpson, 142 F.3d at
645. "An 'inference of discrimination' does not [necessarily]
arise 'anytime a single member of a non-protected group was
(continued)
procedural standards established under federal law' for general
guidance." Gerety,
184 N.J. at 398 (citations omitted). In
Gerety, the court modeled its disparate treatment analysis in
accordance with "the burden-shifting framework enunciated in
McDonnell Douglas Corp[oration] v. Green,
411 U.S. 792 (1973)."
Gerety,
184 N.J. at 399 (citation omitted); see also Zive v.
Stanley Roberts, Inc.,
182 N.J. 436, 447 (2005) ("To address the
difficulty of proving discriminatory intent, New Jersey has
adopted the procedural burden-shifting methodology articulated
in McDonnell Douglas Corp[oration] v. Green,
411 U.S. 792
(1973)[.]").
17 A-4750-16T4
allegedly treated more favorably than one member of the
protected group, regardless of how many other members of the
non-protected group were treated equally or less favorably.'"
Jason,
329 N.J. Super. at 307 (citations omitted). There must
be proof that the individuals being compared were similarly
situated.
To determine whether employees are similarly situated,
"courts tend to consider whether the plaintiff and the
comparator had similar job responsibilities, were subject to the
same standards, worked for the same supervisors, and engaged in
comparable misconduct." Ewell,
94 F. Supp. 3d at 624 (citations
omitted). That does "not mean to suggest that [the listed]
aspects of "similarly situated" status are exhaustive or of
equal significance in different employment contexts. The trial
[court must] make a sensitive appraisal in each case to
determine the most relevant criteria." Jason,
329 N.J. Super.
at 305 (first alteration in original) (quoting Peper,
77 N.J. at
85). "Thus there is no bright-line rule for determining who is
a 'similarly situated' employee." Ibid.
Applying these principles, the trial court here correctly
determined that the jury was not properly instructed. The
judge's charge to the jury did not contain any language
concerning disparate treatment. In declaring a mistrial, the
18 A-4750-16T4
trial court considered federal case law that involved a similar
set of facts, and recognized it was not binding, but was
persuaded that once it allowed the disparate treatment evidence
to go to the jury, it should have given a proper charge that
instructed the jury how to consider whether plaintiff proved
that he and the pharmacy manager were similarly situated, before
the jury could accept the evidence as establishing disparate
treatment.
We reject plaintiff's argument that the trial court's
delivery of the New Jersey Model Civil Jury Charge for NJLAD
claims, see Model Jury Charges (Civil), 2.21, "The New Jersey
Law Against Discrimination" (approved May 2003), was sufficient.
Although the charge's introductory note states that it was
developed for use in disparate treatment claims, it also
recognizes that "because discrimination claims can arise in a
rich variety of contexts [and] the law is in a state of
continuing development[, courts] should develop a charge that
best fits the particular facts of a case." Ibid. In
determining that it failed to follow this instruction in this
case, albeit post–verdict, the trial court fulfilled its
obligation to recognize its error and its impact on the outcome
of the trial.
19 A-4750-16T4
We part company with the trial court, however, in its
granting of defendants' Rule 4:40-1 motion and its barring of
plaintiff's disparate treatment evidence at the new trial.8
In reviewing a motion . . . for judgment
under Rule 4:40-1, we apply the same
standard that governs the trial
courts. . . .: "if, accepting as true all
the evidence which supports the position of
the party defending against the motion and
according him the benefit of all inferences
which can reasonably and legitimately be
deduced therefrom, reasonable minds could
differ, the motion must be denied[.]" The
motion should only "be granted where no
rational juror could conclude that the
plaintiff marshaled sufficient evidence to
satisfy each prima facie element of a cause
of action."
[Smith v. Millville Rescue Squad,
225 N.J.
373, 397 (2016) (third alteration in
original) (citations omitted).]
In deciding a motion under the Rule, a court "is not to
consider 'the worth, nature or extent (beyond a scintilla) of
the evidence,' but only review 'its existence, viewed most
favorably to the party opposing the motion.'" Lechler v. 303
8
We note that we find no merit to plaintiff's argument that
because the trial court denied defendant's Rule 4:37-2 motion
for an involuntary dismissal, it was bound to deny defendants'
motion for judgment under Rule 4:40-1. The introductory note of
Section 2.21 of the Model Jury Charge (Civil) specifically
instructs that the latter motion is appropriate in response to
evidence adduced by plaintiff that an employer's rationale for
terminating an employee was a pretext for discrimination.
20 A-4750-16T4
Sunset Ave. Condo. Ass'n,
452 N.J. Super. 574, 582 (App. Div.
2017) (quoting Dolson v. Anastasia,
55 N.J. 2, 5-6 (1969)).
We conclude from our review of the evidence that plaintiff
presented sufficient evidence that he and the pharmacist were
similarly situated to warrant the matter being submitted to the
jury. While it is true that the two were responsible for
different areas of the same store, and the pharmacy's theft
involved an employee while plaintiff's department did not, part
of both of their responsibilities was to follow their employer's
procedures and policies relating to thefts occurring within
their departments. Moreover, while they each may have had their
own immediate supervisors, plaintiff provided sufficient
evidence that Mauriello was the corporate loss prevention
representative for the store, including the pharmacy, and both
plaintiff and the pharmacist were responsible for compliance
with all corporate policies. Plaintiff's proofs established
that each manager failed to comply with controlling policies
relating to thefts, involving, in part, the same employee, but
were treated differently. Under these circumstances, the
question of whether plaintiff proved the two were similarly
situated should have been left to the jury.
Because we agree with the trial court's determination that
a new trial is required, and we conclude that plaintiff should
21 A-4750-16T4
be permitted to pursue a disparate treatment claim in response
to Rite Aid's explanation for plaintiff's termination, we need
not address plaintiff's arguments regarding the denial of his
reconsideration motion.
Affirmed in part, reversed and remanded in part. We do not
retain jurisdiction.
22 A-4750-16T4
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