GINA DORRITY v. WAKEFERN FOOD 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-0218-18T3
GINA DORRITY,
Plaintiff-Appellant/
Cross-Respondent,
v.
WAKEFERN FOOD
CORPORATION,
Defendant-Respondent/
Cross-Appellant,
and
SUNRISE SUPERMARKETS,
INC., t/a SUNRISE SHOPRITE
OF PARSIPPANY LL, FRANK
SBLENDORIO, SR., individually,
and THOMAS F. HARTE, individually,
Defendants.
___________________________________
Argued October 22, 2019 – Decided January 15, 2020
Before Judges Hoffman, Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3221-16.
Christopher William Hager argued the cause for
appellant/cross-respondent (Hager Law, LLC,
attorneys; Christopher William Hager, on the briefs).
Mark Diana argued the cause for respondent/cross-
appellant (Ogletree, Deakins, Nash, Smoak & Stewart,
PC, attorneys; Mark Diana and Michael J. Riccobono,
on the briefs).
PER CURIAM
Between 1991 and 2016, plaintiff worked at a pair of ShopRite
supermarket stores owned by defendant Sunrise Supermarkets, Inc. (Sunrise), a
member of defendant Wakefern Food Corporation (Wakefern), a grocery
cooperative. After Sunrise terminated her employment in February 2016,
plaintiff filed suit against both Sunrise and Wakefern, alleging age
discrimination. In 2017, plaintiff filed an amended complaint, asserting claims
of fraudulent concealment and spoliation of evidence against Wakefern.
In June 2018, the Law Division granted the summary judgment dismissal
of plaintiff's claims against Wakefern. After plaintiff settled her claims against
Sunrise in September 2018, she filed this appeal, challenging the orders
dismissing her claims against Wakefern. Plaintiff also appeals from an earlier
order that denied her motion seeking a summary judgment determination that
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Wakefern acted as her "employer" under the LAD. Wakefern filed a protective
cross-appeal addressing the same issue. For the reasons that follow, we affirm
the summary judgment dismissal of plaintiff's claims against Wakefern. We
dismiss Wakefern's cross-appeal as moot.
I
Wakefern's Relationship with Sunrise
Wakefern describes itself as "a member-owned cooperative" consisting of
"approximately [fifty] Member companies" that "independently own and operate
supermarkets doing business under the ShopRite trade name." The Members
operate approximately 325 stores.
Wakefern requires Members to purchase eighty-five percent of their retail
sales, and all of their beef, from Wakefern. Further, Members must "maintain
their stores at a level that is acceptable by the Wakefern quality assurance
division that does store inspections, product inspections, etc." and must also
"participate in a common advertising theme or circular."
Wakefern provides numerous services for Member stores, such as
procuring goods for resale by the stores, managing intellectual property such as
trademarks, accounting services, marketing and merchandising services,
advertising, training, and loss prevention services. Through its computer
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information systems division, Wakefern also provides Members various
helpdesks (including a customer service hotline, a logistics line, and an IT
helpdesk), insurance services, inventory management, and IT support.
Wakefern owns the licenses for the computer software Members use,
including PeopleSoft (used to manage payroll processing), Kronos (a time
management software), and Magic (a helpdesk software). Wakefern hosts and
maintains the software, as well as the networks and equipment which run the
software; in addition, Wakefern serves as the email administrator for Members.
Wakefern negotiates collective bargaining agreements with the ShopRite
employees' union. The union agreement addresses a wide range of topics,
including seniority, wages, overtime, holidays, lunch periods, funeral leave,
health and welfare benefits, and arbitration and grievance procedures.
In addition, Wakefern controls the point-of-sale technology used by each
Member store. Wakefern controls digital coupons loaded onto a customer's
"ShopRite Price Plus card" and redeemed at stores. Wakefern directs customer
service employees on how to answer questions related to the coupons.
Regarding loss prevention matters, Wakefern monitors weekly "Lane
Hawk" reports that monitor the bottom of shopping carts for items not scanned
for purchase. Wakefern also hires a third-party to conduct a "mystery shopper"
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program, whereby individuals pose as customers to evaluate stores for safety,
cleanliness, and customer service; however, this service is optional.
Wakefern also maintains a website for employee training; however,
Members may choose to forego the training, or modify the training programs as
they see fit. Notwithstanding Wakefern's involvement in many areas of store
operations of its Members, the record contains no evidence of Wakefern's
involvement in training, developing policies, or investigating claims related to
discrimination, retaliation, or harassment. Further, the record lacks any
evidence of Wakefern's involvement in the staffing of any stores, hours of
operation, or the hiring or firing of Member employees.
Plaintiff's Employment by Sunrise
Born in 1957, plaintiff began working as a part-time cashier at the West
Caldwell Shoprite – owned by Sunrise – in 1991. When plaintiff applied for her
position, she completed a form with the following heading:
APPLICATION FOR EMPLOYMENT
WAKEFERN FOOD CORPORATION
SHOP-RITE SUPERMARKETS.
After submitting her application, plaintiff interviewed for the cashier
position with a Sunrise store manager, who offered her the position on the spot.
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Plaintiff never interviewed with a Wakefern employee, nor does the record
indicate that Wakefern participated in the hiring decision. In fact, the record
lacks any evidence of Wakefern's involvement in any Sunrise personnel
decisions.
Plaintiff received cashier training at the Sunrise store from Sunrise
employees. Eight years later, Sunrise moved plaintiff to the position of courtesy
counter clerk. Sunrise employees trained plaintiff for that position and informed
her of her duties. In 2001, plaintiff received a promotion to head bookkeeper
and head courtesy clerk. In 2011, Sunrise transferred plaintiff to its Parsippany
store, where she maintained the same position and duties. Sunrise alone made
these decisions, with no involvement of Wakefern.
In addition to her duties as head bookkeeper and head courtesy clerk,
plaintiff handled several human resource (HR) matters. Sunrise assigned these
additional tasks without input from Wakefern. Some of the training for
plaintiff's HR duties came from Sunrise employees, but some also came from
Wakefern, such as how to use the Kronos system to manage scheduling and to
record "absence[s] and late's." Plaintiff presented no evidence of any Wakefern
involvement in Sunrise's decision to assign these duties to plaintiff.
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As part of her HR duties, plaintiff completed disciplinary notices for
employees who failed to arrive on time or missed work. Plaintiff also handled
disciplinary notices for employees with time clock violations or cash shortages.
Plaintiff sent these notices to Sunrise's HR department or department managers,
but not to Wakefern.
Plaintiff did not inform Wakefern if she planned to take a vacation, or if
she called out sick – Sunrise handled all such matters. Sunrise alone assigned
plaintiff her work schedule, as it did for all of its employees.
Plaintiff received awards for her work, including perfect attendance,
employee of the month, and employee of the year. These awards came directly
from Sunrise, not Wakefern. Until February 2016, plaintiff received positive
employee evaluations. Wakefern did not issue any performance reviews to
plaintiff nor did it participate in any evaluations plaintiff received from Sunrise.
Plaintiff's paychecks listed the payor as "Sunrise SR of Parsippany LLC,"
with no mention of Wakefern. Plaintiff could not recall ever receiving a W-2
tax form indicating Wakefern as her employer. Plaintiff was not covered by
Wakefern's employee benefit plans, nor was she eligible for such coverage.
The Sunrise ShopRite Associate Handbook given to Sunrise employees
states the information contained therein "is proprietary Wakefern information
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(use pursuant to Company instructions)." The handbook calls for a "progressive
counseling" process for certain employee infractions. The process calls for four
steps of warnings and reprimands before termination occurs; however, the
handbook states certain conduct could result in immediate discharge, including:
"discourtesy to customers," "poor job performance," "violating time and
attendance procedures," and "theft of any kind."
Wakefern provides the handbook to its Members for use, but they remain
free to reject or modify it as they see fit. Sunrise inserted some of its own
policies, including policies addressing progressive discipline, attendance,
vacations, sick time, personal time, and tuition reimbursement.
Wakefern provides and manages most of the Sunrise's store computer
software. In fact, all the software plaintiff utilized to complete her job originated
with Wakefern. Plaintiff sent financial information to Wakefern's ShopRite
Financial Services (SFS) 1 via an Oracle-based program each day. SFS reviewed
plaintiff's bookkeeping work and would contact her through the Oracle
program's "notes" function about any issues in sales reports. SFS personnel
1
SFS provides optional accounting and other financial analysis services to
Members for a fee.
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provide assistance, but do not supervise, evaluate, review, discipline, or control
the bookkeepers at Member stores.
Plaintiff exchanged emails with Wakefern employees about HR issues or
technology issues. Wakefern tracked these help desk communications, first
using a computer program called "Magic" before later switching to a program
named "Front Range."
Wakefern's cash and sales system manages and monitors the sales and
cash operations of all Member stores. Plaintiff used this system to complete her
work. Wakefern trained plaintiff on point-of-sale software and assisted her over
the phone regarding her bookkeeping responsibilities.
In 2014, Sunrise hired Andrew Leaman for a newly created position –
customer service manager – at its Parsippany store. Leaman never previously
worked for a ShopRite store and lacked any relevant experience before starting
the job. Sunrise never offered the position to plaintiff, nor did it consider her
for it, despite her title as head courtesy clerk. Less than a year later, when
Leaman took another position, Sunrise replaced him with a woman, who was
twenty-six years old at the time.
In 2015, Wakefern hired Strategic Resources Group (SRG) to examine
ShopRite stores and compare their employee hiring and retention practices with
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other retailers, such as Wegmans, Trader Joe's, Target, and Home Depot. Along
with other strategies, the study recommended that Members focus on hiring high
school level students for summer part-time work, before hiring qualified student
workers for full time positions.
Sunrise management later sought to hire a computer-generated ordering
(CGO) supervisor. An email sent by a Sunrise manager described plaintiff as
"not interested" in the position. Sunrise selected a part-time cashier, who was
about to graduate from school with an IT degree. He was approximately twenty-
three years old and described as a "bright young man." Joanne Zambrello, Vice
President of Human Resources with Sunrise, admitted the hiring was consistent
with the hiring objectives of the SRG report, which recommended hiring
"younger workers," including part-time students to long-term positions.
In April 2015, Leaman transitioned to the role of IT supervisor after the
previous supervisor retired. Plaintiff had requested the position as she had
worked with Wakefern's systems for several years. However, the record fails to
demonstrate that plaintiff possessed the necessary qualifications for the job. She
could not remember having experience in setting up IT equipment; she could not
remember having applied for any other IT positions; she did not know the
meaning of several of the job's requirements such as "providing technological
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guidance to Sunrise Liquor Stores" or "network security protocols", and she
could not remember taking computer courses since graduating college, and had
no computer programming training.
The record lacks any evidence that Wakefern had any input into the hiring
decision for the IT supervisor position, or that plaintiff reached out to any
Wakefern employees about her interest in the position. When Leaman, who was
then plaintiff's supervisor, told plaintiff he had received the position, plaintiff
complained, recalling that she told him "it was discriminatory," and that she did
not get the position because she "was older." According to Leaman, plaintiff
said, "I was supposed to have this job, and they gave it to you." Leaman reported
plaintiff's comment to Zambrello, who did not investigate it.
In May 2015, Sunrise removed plaintiff's access to override the time clock
and access the payroll system, and her responsibility to track late and absent
employees; in addition, Sunrise changed plaintiff's job title from "head
bookkeeper" to simply "bookkeeper." Wakefern had no input in these decisions.
Because he had been her supervisor when he worked as customer service
manager, Leaman conducted plaintiff's employee "Core Competency
Assessment" in June 2015. He graded her a 2.70 out of a possible five. This
score ranked as "good," and indicated plaintiff "consistently meets job
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requirements." The record contains no evidence that Wakefern approved,
reviewed, or participated in plaintiff's evaluation in any way.
In August 2015, plaintiff was assigned to work shifts beginning at 3 a.m.
Sunrise made this decision without input from Wakefern. Sunrise further
assigned plaintiff to work thirty-five straight days from January to February
2016 to cover for a coworker who had taken a vacation. Plaintiff never
complained about these work schedule assignments to a Sunrise superior nor to
anyone at Wakefern.
In February 2016, while on her lunch break, plaintiff spoke with a
customer, who had pictures of the Pope he wanted to show her. When her break
ended, plaintiff punched back in, but then continued to speak with the customer.
After the conversation, plaintiff failed to complete her work before the end of
her shift; as a result, she required a supervisor to override the time clock for her
"to punch out." Later that day, Sunrise called plaintiff at home and told her she
was suspended pending termination for, in plaintiff's words, "Stealing time."
On February 25, 2016, plaintiff attended a meeting between her union and
Sunrise store managers. At the meeting, plaintiff expressed her belief that she
was treated unfairly and that she was simply providing good customer service.
Plaintiff's brief states that she complained of age discrimination; however, a
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written statement plaintiff prepared for the meeting contains no mention of age
discrimination or Wakefern. Plaintiff's statement does discuss how other
employees committed worse violations and avoided termination.
At the end of the meeting, plaintiff received termination paperwork.
Sunrise replaced plaintiff with an employee at least twenty years younger. The
record contains no evidence that Wakefern participated in the firing of plaintiff
or in the hiring of her replacement. On May 6, 2016, plaintiff filed suit against
Sunrise and Wakefern. Wakefern received the complaint one week later.
Plaintiff's Spoliation Claim
Wakefern maintains a "Records Retention Policy" (RRP) to "use, maintain
and destroy" records consistently. The policy calls for litigation holds upon
written communication "as a result of current or anticipated litigation." The
hold suspends the "normal disposition, processing or destruction of Records."
The RRP does not allow for employee discretion on the destruction or
retention of "records," which Wakefern retains or destroys in accordance with
the policy. The policy defines "records" as materials "directly related to the
Company's operations and management." Wakefern maintains "records" in
accordance with a Records Retention Schedule (RRS), while "general
information" – defined as materials without "business, financial, legal,
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regulatory, or policy reasons" to be maintained – "should be kept only for as
long as it enables an Associate to do his or her job . . . but in no event, for more
than two years . . . ." No specific retention schedule addresses emails, as they
may constitute records or general information, depending on their contents.
To delete an email account, after an employee's termination, a member of
the "security admin" team deletes the account, making it nonfunctional. A
"cleanup" process then begins, usually within weeks, which removes the actual
files. The cleanup is a manual task; accordingly, Wakefern maintains no audit
trail indicating the time of each account's deletion. A backup system keeps a
copy of all email accounts on the server; however, Wakefern recycles and reuses
the backup tapes every three weeks. Wakefern disabled plaintiff's email account
on April 14, 2016. The cleanup process followed within two to three weeks.
Plaintiff's initial complaint made no reference to any email
communications she sent or received. The complaint made no reference to any
communications she ever had with any Wakefern employees. Plaintiff's
complaint made no reference to the Magic or Front Range system, nor any
communications between her and Wakefern's Helpdesk. She did not mention
any such communications until July 12, 2016, when she filed a certification in
opposition to a Wakefern motion to dismiss. Plaintiff first made reference to
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emails with Wakefern in March 2017 – nearly ten months after she filed her
complaint, and nearly ten months after the email back-up tapes were recycled.
Because the server had been discarded, Wakefern did not produce any of
the Magic communications during discovery; however, it did produce five years
of communications through the Front Range system. Plaintiff indicated she
could testify about the Magic communications and their contents.
After Wakefern could not produce plaintiff's emails, Oracle notes, or
Magic communications during discovery, plaintiff filed an amended complaint
in December 2017, asserting her fraudulent concealment and spoliation of
evidence claims.
II
We apply the same standard as the trial court in reviewing the granting of
a motion for summary judgment. Townsend v. Pierre, 221 N.J. 36, 59 (2015).
If there is no factual dispute, and only a legal issue to resolve, the standard of
review is de novo and the trial court rulings "are not entitled to any special
deference." Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366,
378 (1995). Summary judgment must be granted if "the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact challenged and
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that the moving party is entitled to a judgment or order as a matter of law." R.
4:46-2(c). The court considers whether "the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995).
Dismissal of Plaintiff's LAD Claims Against Wakefern
Plaintiff's argues that Wakefern is liable for failing to investigate her
claims of discrimination and for failing to take adequate remedial measures.
Claims for failure to investigate and take remedial measures arise when an
employer or supervisor has actual knowledge of the discrimination and do not
promptly and effectively act to stop it. Lehmann v. Toys 'R' Us, Inc., 132 N.J.
587, 622 (1993). However, plaintiff cannot demonstrate actual knowledge. She
admitted she did not remember if she had ever complained of discrimination to
anyone at Wakefern. Patrick Durning, Manager of Labor Relations for
Wakefern, certified that he did not know of plaintiff's discrimination complaints
prior to the filing of her lawsuit. Dewey Cannella, Vice President of the Labor
Relations Division for Wakefern, also certified that he did not know of plaintiff's
discrimination complaints until she filed suit.
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Plaintiff did complain to Leaman after she did not receive the IT position,
and Leaman reported her complaint to Zambrello; however, neither Zambrello
nor Leaman worked for Wakefern – they both worked for Sunrise. The fact that
plaintiff alleged discrimination to Sunrise employees did not impute knowledge
to Wakefern.
Further, plaintiff's own written statement that she read at the meeting
between her union and Sunrise store managers did not mention discrimination.
A general complaint of unfair treatment does not provide notice of a complaint
of discrimination. See Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J. Super. 366, 377 (App. Div. 2014) (citing Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. l995)). Plaintiff failed to present any evidence of
Wakefern involvement in the discriminatory or retaliatory conduct she alleged.
Therefore, it is undisputed in the record that Wakefern had no knowledge of
plaintiff's complaints of discrimination before she filed suit.
In light of the absence of any evidence that Wakefern in any way
participated in the discriminatory conduct plaintiff allegedly experienced,
plaintiff raises alternative arguments for imposing liability upon Wakefern. We
briefly address each argument.
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Plaintiff first argues the relationship between Wakefern and Sunrise
warrants piercing "the corporate veil" to impose liability upon Wakefern. The
piercing the corporate veil doctrine is used when a subsidiary constitutes "a mere
instrumentality of the parent corporation," and requires a finding that the "parent
so dominated the subsidiary that it had no separate existence but was merely a
conduit for the parent." Marzano v. Computer Science Corp., 91 F.3d 497, 513
(3d Cir. 1996). The doctrine does not apply here because Wakefern is not
Sunrise's parent company; to the contrary – Sunrise, along with the other
Members, owns Wakefern. A substantial and ongoing business, Sunrise is not
a "shell" company, with no separate existence, formed to insulate Wakefern
from liability.
Plaintiff next argues that Wakefern jointly employed plaintiff, along with
Sunrise. The record does not support this argument. Plaintiff worked at Sunrise
stores, where Sunrise set her work schedule, assigned her job duties, and paid
her salary and benefits. Consistent with the member-owned cooperative model,
Wakefern provided no input in Sunrise's decision to suspend and then terminate
plaintiff's employment. While we apply the twelve-factor Pukowsky2 test "to
determine who is an employer in cases lacking an actual or customary employer-
2
Pukowsky v. Caruso, 312 N.J. Super. 171, 185 (App. Div. 1998).
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employee relationship," Thomas v. Cty. of Camden, 386 N.J. Super. 582, 595
(App. Div. 2006), the overwhelming evidence demonstrating a customary
employment relationship between plaintiff and Sunrise precludes the application
of Pukowsky here. Even if Pukowsky applied, analysis of the twelve factors
overwhelmingly indicates that Wakefern was not plaintiff's joint employer.
Since the record clearly shows that plaintiff was a Sunrise employee, and
not a Wakefern employee, and that Wakefern had no involvement in the
discriminatory conduct alleged by plaintiff, the motion court properly granted
the summary judgement dismissal of plaintiff's LAD claim.
Dismissal of Plaintiff's Spoliation Claims Against Wakefern
Plaintiff's spoliation claim concerns three categories of electronically
stored information (ESI): emails she exchanged with Wakefern employees,
communications with Wakefern employees made through the Oracle software,
and communications with Wakefern employees through the Magic software.
Spoliation involves "the hiding or destroying of litigation evidence,
generally by an adverse party." Rosenblit v. Zimmerman, 166 N.J. 391, 401
(2001). "Spoliation of evidence in a prospective civil action occurs when
evidence pertinent to the action is destroyed, thereby interfering with the action's
proper administration and disposition." Manorcare Health Servs., Inc. v.
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Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 226 (App. Div. 2001)
(quoting Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super.
358, 364 (App. Div. 1998)); see also Rosenblit, 166 N.J. at 400-401.
A duty to preserve evidence arises when there is: "(1) pending or probable
litigation involving the [plaintiff]; (2) knowledge by the [defendant] of the
existence or likelihood of litigation; (3) foreseeability of harm to the [plaintiff],
or in other words, discarding the evidence would be prejudicial to [plaintiff];
and (4) evidence relevant to the litigation." Manorcare, 336 N.J. Super. at 226
(quoting Aetna Life and Cas. Co., 309 N.J. Super. at 366-67).
Whether a party has an obligation to save evidence in a given context is a
question of law. Aetna Life, 309 N.J. Super. at 365 (citing Hirsch v. Gen.
Motors Corp., 266 N.J. Super. 222, 234 (Law Div. 1993)). Thus, the trial court's
conclusion that plaintiff had a duty to preserve the disputed evidence is subject
to de novo review. See Manalapan Realty, 140 N.J. at 378 ("A trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference."). However, the factual findings
on which the trial court based its legal conclusions are entitled to deference.
Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474 (1974).
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We disagree with plaintiff that the motion record established a genuine
issue as to any material fact. To establish a claim for fraudulent concealment of
evidence, a plaintiff must prove:
1) That defendant in the fraudulent concealment
action had a legal obligation to disclose evidence
in connection with an existing or pending
litigation;
2) That the evidence was material to the litigation;
3) That plaintiff could not reasonably have obtained
access to the evidence from another source;
4) That defendant intentionally withheld, altered or
destroyed the evidence with purpose to disrupt
the litigation; [and]
5) That plaintiff was damaged in the underlying
action by having to rely on an evidential record
that did not contain the evidence defendant
concealed.
[Tartaglia v. UBS PaineWebber, Inc., 197 N.J.
81, 118 (2008).]
Although Wakefern learned of plaintiff's lawsuit in May 2016, there was
nothing in the complaint alerting Wakefern that plaintiff's email account might
contain evidence relevant to her joint employer allegations. Plaintiff's complaint
made no reference to any emails or other communications she ever exchanged
with any Wakefern employee during her employment at Sunrise. Nor did
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plaintiff's complaint contain a demand to preserve evidence. Plaintiff also did
not refer to any emails she may have exchanged with Wakefern in a July 12,
2016 certification she submitted in opposition to a Wakefern dismissal motion.
Rather, plaintiff's first reference to emails with Wakefern occurred in March
2017 – nearly ten months after she filed her complaint, and nearly ten months
after the email back-up tapes were recycled.
We reject plaintiff's argument that the motion judge erred because "there
is no New Jersey Court Rule or case law requiring a plaintiff to first make a
written request for evidence to be preserved, whether in the complaint or
otherwise." The judge did not hold that plaintiff needed to make a written
request to preserve evidence in order to trigger Wakefern's duty to preserve ESI.
Rather, the judge correctly concluded, based on all of the undisputed facts,
including the absence of a preservation demand, that Wakefern had no reason to
know – at the time of deletion – that any of the ESI at issue was relevant to any
of plaintiff's claims. Additionally, plaintiff failed to demonstrate the relevance
or importance of any emails that were subsequently deleted.
Plaintiff conceded she lacked any evidence that defendant intentionally
withheld or destroyed the ESI she requested. When asked if she had any
evidence of Wakefern deleting the emails to interfere with her case, plaintiff
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provided none. Instead, she simply stated, "They haven't produced anything.
That's all I know . . . ." Lastly, plaintiff cannot prove that Wakefern's actions
damaged her in her LAD case because she admitted she can testify to the
contents of the communications. Cf. Rosenblit, 166 N.J. at 411 (holding that
where the party seeking discovery ultimately receives it, a spoliation inference
is not appropriate).
We are satisfied the motion judge properly granted the summary judgment
dismissal of Wakefern's spoliation claim since the record lacks sufficient
evidence to establish a genuine dispute that Wakefern improperly destroyed any
records relating to plaintiff's asserted claims or otherwise caused her any
damage.
Affirmed. We dismiss Wakefern's cross-appeal as moot.
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