FILZAH KALIM v. URBAN OUTFITTERS, INC

NOT FOR PUBLICATION WITHOUT THE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-4811-18

FILZAH KALIM,

       Plaintiff-Appellant,

v.

URBAN OUTFITTERS, INC.,
and ADRIENNE BATTAGLINO,

     Defendants-Respondents.
____________________________

                Submitted September 16, 2020 – Decided March 4, 2021

                Before Judges Geiger and Mitterhoff.

                On appeal from the Superior Court of New Jersey, Law
                Division, Middlesex County, Docket No. L-2319-17.

                David H. Kaplan, attorney for appellant.

                Faegre Drinker Biddle & Reath, LLP, attorneys for
                respondents (Thomas J. Barton, on the brief).

PER CURIAM

       Plaintiff Filzah Kalim appeals from the trial court's June 6, 2019 order

granting summary judgment in favor of defendant Urban Outfitters, Inc.,
dismissing her complaint alleging wrongful termination, hostile work

environment, and retaliation under the Law Against Discrimination (LAD),

 N.J.S.A. 10:5-1 to - 49, as well as breach of implied contract. We affirm.

      We discern the following facts from the record. Plaintiff was diagnosed

with a hearing impairment as a young child and developed a speech impediment

as a result. Defendant describes itself as a "lifestyle retailer" with locations

throughout North America and Europe. In November 2014, plaintiff was hired

by defendant at its Menlo Park location as a part-time seasonal sales associate.

Although the position originally anticipated only a three-month period of

employment, plaintiff was kept on as a permanent part-time employee following

the holiday season.

      It is undisputed that plaintiff received defendant's employee handbook

when she was hired and electronically signed an acknowledgment indicating that

she read it. The handbook included an employee code of conduct and outlined

defendant's disciplinary procedures in the event of a violation. The handbook

explained that in the event of a violation, defendant may exercise several

corrective actions including verbal and written warnings, a final written

warning, and termination. Directly next to the list of corrective actions is a

provision stating that defendant may choose to take any of the previously


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mentioned steps in any order, including termination, depending on the

circumstances.    The handbook also included a procedure for reporting

complaints of discrimination.

      Adrienne Battaglino began working as a store manager of the Menlo Park

location around July 2015.       Battaglino testified that although plaintiff's

performance was generally satisfactory, she had to issue a number of verbal

warnings based on plaintiff's conduct, which included drinking soda on the sales

floor, failing to return from breaks on time, reading a book at closing t ime,

violating the dress code, and sleeping in the break room.

      Ashley Hill, a store supervisor at defendant's Menlo Park location, also

described plaintiff's performance as generally satisfactory. She also testified,

however, to several instances in which she also had to issue verbal warnings.

Hill specifically noted two occasions on which she had to speak to plaintiff

regarding her punctuality and confirmed the allegation that plaintiff read books

while on duty. Defendant produced text messages evidencing a book reading

incident from August 30, 2015, which was the only written documentation of

plaintiff's violations prior to a September 8, 2015 final written warning.

      Plaintiff's employment came to an end after a September 8, 2015 meeting

with Battaglino and Hill. The meeting lasted forty-five minutes to an hour,


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during which time plaintiff was presented with a document labeled "Written

Warning Form." Two boxes appear at the top of the form marked "First Written

Warning" and "Final Written Warning." The "Final Written Warning" box is

checked. There are six columns near the center of the page listing a number of

conduct violations. Seven violations are checked, including but not limited to

"Violation of Dress code," "Failure to follow directions," and "Excessive

lateness." The form includes a blank space directing a supervisor to describe

"in detail examples of the employee's unsatisfactory conduct." Drinking on the

sales floor, reading books, not listening to managers, tardiness, dress code

violations, and over-length breaks are listed in handwriting. Directly below the

handwritten list is another blank space directing a supervisor to explain the plan

of action agreed upon by parties to correct the violations listed above. "If Filzah

wants to continue working at Urban, she needs to have better communication

with the store 2nd mgmt. team (aside from slack posts + texts). Follow policy

and procedure correctly" is handwritten in the blank space. Directly below that

is a box labeled "Potential consequences if behavior is not corrected:" with the

word "TERMINATION" handwritten next to it. Battaglino, Hill, and plaintiff

signed and dated the bottom of the document. Above the signature lines is a

paragraph which states in part:


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            I acknowledge that I have reviewed this notice and
            received a copy of it.         The above performance
            problem(s) has been discussed with me. I understand
            that either failure to improve my performance or the
            occurrence of other incidents of unsatisfactory behavior
            will result in further disciplinary action, up to and
            including termination . . . If I believe this corrective
            action to be unjustified or unfair, I can use the Company
            "Open Door" policy to address my concern.

      Although plaintiff cannot remember most of what was said during the

meeting, she contends Battaglino fired her as soon as she walked into the office,

did not review the employee handbook or code of conduct with her, and asked

if plaintiff would like to stay and work for the remainder of the shift. Plaintiff

testified that she signed the document and was given a copy, but did not read it.

Because plaintiff was upset after the meeting, she asked and was permitted to

take a ten-minute break before returning to work. When plaintiff returned

fifteen minutes later, she claims Battaglino told her to leave.

      Battaglino, on the other hand, claims that although plaintiff was presented

with a final written warning during the meeting noticing her of the consequences

of continued conduct violations, she was not fired. According to Battaglino, she

and Hill went over various rule infractions during the meeting and provided a

copy of the employee handbook with relevant sections tabbed for plaintiff's

review. Following the meeting, Battaglino also testified that she permit ted

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plaintiff to take a ten-minute break because she was upset, but stated plaintiff

returned about an hour later, asked some questions about the meeting they had,

then quit. Battaglino further testified that she has never fired an employee then

permitted them to work for the remainder of the shift. It is undisputed that

plaintiff's disability was not mentioned during the meeting.

      About an hour after plaintiff left, plaintiff's sister returned to speak with

Battaglino.    Plaintiff's sister submitted a certification stating Battaglino

informed her that she had fired plaintiff for drinking soda on the sales floor and

taking overlength breaks. Battaglino submitted a certification stating she told

plaintiff's sister she could not discuss employment matters with her. 1

      On April 10, 2017, plaintiff filed a complaint in the Superior Court of

Middlesex County alleging Battaglino fired her for having a hearing impairment

and fabricated performance issues to justify her termination.            Naming both

Urban Outfitters, Inc. and Battaglino as defendants, 2 plaintiff claimed wrongful


1
  In its motion for summary judgment, defendant explained that it made repeated
attempts to serve plaintiff's sister with a subpoena so she could be deposed. It
was unable to serve plaintiff's sister and alleged she was evading service.
2
  Battaglino was not served with the summons and complaint. Therefore, the trial
judge issued a December 8, 2017 order dismissing plaintiff's claims against
Battaglino, without prejudice, for lack of prosecution. After plaintiff filed her appeal
of the trial court's June 6, 2019 order, we inquired as to the status of the claims


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termination, hostile work environment, and retaliation under the LAD, breach

of implied contract, and requested punitive damages.

      Plaintiff, Battaglino, and Hill were deposed. Plaintiff testified that she

did not have any personal disagreements with Battaglino prior to the September

8, 2015 meeting. She further testified that she was never spoken to or treated

inappropriately by Battaglino with regard to her disability, or any other issue.

Plaintiff acknowledged she had not filed a complaint pursuant to the procedures

described in defendant's handbook or pursued any other remedial action, apart

from this lawsuit.

      Both Battaglino and Hill were aware of plaintiff's disability, but each

testified it played no role in the decision to issue the final written warning.

      On April 12, 2019, defendant filed a motion for summary judgment

arguing plaintiff had not established a prima facie case of employment

discrimination based on her failure to produce any evidence of an adverse

employment action or circumstances creating a legitimate inference of disability

discrimination. Because plaintiff was not fired, she was not able to point to any



against Battaglino, prompting the parties to file a Stipulation of Dismissal Without
Prejudice on September 26, 2019. Despite the arguments presented on appeal
requesting damages from Battaglino, plaintiff has not moved to reinstate or
otherwise made any effort to revive her claims against Battaglino.


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adverse employment action as the basis of her claim. Defendant further argued,

even if plaintiff was fired, it has provided unrebutted evidence of its

nondiscriminatory reasons for termination, therefore the complaint should be

dismissed.

      On May 16, 2019, plaintiff filed a response, opposing summary judgment

only on her wrongful termination claim.       She argued that it could not be

reasonably disputed that she was in fact terminated on September 8, 2015, and

that the timing of Battaglino's transfer to defendant's Menlo Park location, and

plaintiff's subsequent termination, created enough of a question of fact regarding

defendant's discriminatory motive to present the case to a jury.

      The trial judge found plaintiff did not establish a prima facie case of

wrongful termination based on her failure to offer evidence that her disability

played any role in the decision to fire her. The trial judge further found that

even if she were able to establish a prima facie case, plaintiff had not produced

any evidence to rebut defendant's articulated nondiscriminatory reason for

termination. Ibid.

      On appeal, plaintiff raises the following arguments for our consideration:




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POINT I

THE TRIAL COURT ERRED IN MAKING
FACTUAL DETERMINATIONS THAT SHOULD BE
DECIDED BY A JURY.

POINT II

THE TRIAL COURT ERRED IN DECIDING THAT
THERE IS NO PRIMA FACIE CASE OF
DISABILITY DISCRIMINATION.

POINT III

THE COURT DID NOT ADEQUATELY ADDRESS
THE QUESTION OF WHETHER OR NOT . . .
DEFENDANT         CAN      ARTICULATE      A
L[E]GITIMATE NON-DISCRIMINATORY REASON
FOR FIRING . . . PLAINTIFF AND IT IS ONE FOR
THE JURY.

POINT IV

THE COURT FAILED TO ADEQUATELY STATE A
REASON WHY A RATIONAL FACTFINDER
COULD NOT CONCLUDE THAT THERE IS
SUFFICIENT EVIDENCE TO SHOW THAT
DEFENDANT'S       EXPLANATION     FOR
TERMINATING THE PLAINTIFF WAS PRETEXT
FOR DISCRIMINATION.

POINT V

THE   EVIDENCE      ESTABLISHES    THAT
DEFENDANT    [BATTAGLINO]    AIDED   OR
ABETTED THE DISCRIMINATORY CONDUCT;
THEREFORE, SHE CAN BE HELD LIABLE UNDER


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            THE    NEW    JERSEY                LAW        AGAINST
            DISCRIMINATION.

      We review a grant of summary judgment using the same standard that

governs the trial judge's decision. RSI Bank v. Providence Mut. Fire Ins. Co.,

 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat,  217 N.J. 22, 38 (2014)).

Under that standard, summary judgment will be granted when "the competent

evidential materials submitted by the parties," viewed in the light most favorable

to the non-moving party, show that there are no "genuine issues of material fact"

and that "the moving party is entitled to summary judgment as a matter of law."

Grande v. Saint Clare's Health Sys.,  230 N.J. 1, 24 (2017) (quoting Bhagat,  217 N.J. at 38); see also R. 4:46-2(c). "An issue of material fact is 'genuine only if,

considering the burden of persuasion at trial, the evidence submitted by the

parties on the motion, together with all legitimate inferences therefrom favoring

the non-moving party, would require submission of the issue to the trier of fact.'"

Grande,  230 N.J. at 24 (quoting Bhagat,  217 N.J. at 38). We owe no special

deference to the motion judge's legal analysis. RSI Bank,  234 N.J. at 472

(quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,  224 N.J.
 189, 199 (2016)).




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      The LAD,  N.J.S.A. 10:5-12, prohibits employment discrimination based

on an employee's disability. In pertinent part,  N.J.S.A. 10:5-12(a) provides as

follows:

            It shall be an unlawful employment practice, or, as the
            case may be, an unlawful discrimination . . . [f]or an
            employer, because of the . . . disability . . . of any
            individual . . . to discharge . . . from employment such
            individual or to discriminate against such individual in
            compensation or in terms, conditions or privileges of
            employment[.]

      "All LAD claims are evaluated in accordance with the United States

Supreme Court's burden-shifting" methodology established in McDonnell

Douglas Corp. v. Green,  411 U.S. 792, 804-04 (1973). Battaglia v. United

Parcel Serv., Inc.,  214 N.J. 518, 546 (2013). A plaintiff claiming disability

discrimination must first present evidence establishing a prima facie case of the

alleged discriminatory conduct. Zive v. Stanley Roberts, Inc.,  182 N.J. 436, 447

(2005).

      To successfully assert a prima facie claim of discriminatory discharge

based on disability, a plaintiff must prove that (1) she was a member of protected

group; (2) she was performing in the position from which she was fired; (3) she

was terminated; and (4) the employer sought to replace her. Id. at 457-58 (citing

Mogull v. CB Commercial Real Est. Grp.,  162 N.J. 449, 471 (2000)).


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Alternatively, to satisfy the fourth element, a plaintiff may show that her

discharge "took place under circumstances that give rise to an inference of

unlawful discrimination." Williams v. Pemberton Twp. Pub. Sch.,  323 N.J.

Super. 490, 502 (App. Div. 1999).

      If a plaintiff establishes a prima facie case, creating an inference of

discrimination, the burden of production then shifts to the defendant to

"articulate a legitimate, nondiscriminatory reason for the employer's action."

Zive,  182 N.J. at 449 (citing Clowes v. Terminix Intern., Inc.,  109 N.J. 575, 596

(1988)). Where the defendant does 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. "To prove pretext, a plaintiff

may not simply show that the employer's reason was false but must also

demonstrate that the employer was motivated by discriminatory intent." Ibid.

(citing Viscik v. Fowler Equip. Co.,  173 N.J. 1, 14 (2002)). At all times,

however, the burden of persuasion that the employer engaged in intentional

discrimination remains with the employee. Clowes,  109 N.J. at 596.

      The employer is entitled to summary judgment if, after proffering a

nondiscriminatory reason for its decision, plaintiff cannot "point to some


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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." Zive,  182 N.J. at 455-56 (quoting

Fuentes v. Perskie,  32 F.3d 759, 764 (3d Cir. 1994)).

      The first factor of plaintiff's prima facie case is undisputed because

plaintiff's hearing disability places her in a class protected by the LAD. See

 N.J.S.A. 10:5-4.1. We are also satisfied that plaintiff was generally performing

her job at a level that met her employer's expectations. Although the trial court

found plaintiff quit on September 8, 2015, considering the summary judgment

standard, we will assume for purposes of our de novo review that she was fired.

As to the fourth requirement of a prima facie case, however, we conclude, as did

the trial court, that plaintiff failed to come forward with any evidence showing

she was replaced, or alternatively that raises, even circumstantially, an inference

of unlawful discrimination.

      In addition, even if we assume that plaintiff succeeded in establishing her

prima facie case, the defendant articulated valid nondiscriminatory reasons for

its actions.   See Zive,  182 N.J. at 449 (citing Clowes,  109 N.J. at 596).

Battaglino testified that in the months leading to the September 8, 2015 meeting,


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she issued plaintiff several verbal warnings related to various conduct

violations, which included drinking soda on the sales floor, violating the dress

code, taking overlength paid breaks, sleeping in the break room, and reading a

book instead of performing closing duties. Hill testified that she issued plaintiff

verbal warnings on two occasions due to her tardiness. Hill also corroborated

Battaglino 's verbal warnings regarding dress code violations, drinking soda on

the sales floor, taking overlength paid breaks, and reading a book while others

were closing the store. In plaintiff's own testimony, she admitted to arriving to

work late, taking overlength paid breaks, and sleeping in the break room.

      Having articulated its nondiscriminatory motive for termination, the

burden of production shifts back to plaintiff to prove by a preponderance of the

evidence that defendant's alleged reasons were merely pretext for its true

discriminatory intent. Ibid. Plaintiff argues in light of her outstanding record

under the previous manager, the timing of Battaglino's arrival at defendant's

Menlo Park location in July 2015, coupled with her subsequent performance

issues leading to dismissal on September 8, 2015, provide enough evidence for

a reasonable jury to conclude she was fired on the basis of her disabil ity. We

disagree.




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      Plaintiff has failed to point to any evidence in the record that could

plausibly lead to an inference of disability discrimination. Plaintiff testified that

during the course of her employment, Battaglino never mentioned anything

about her disability or treated her inappropriately in any way. In fact, the very

first issue she had with her manager arose during the September 8, 2015 meeting,

during which the issue of plaintiff's disability was not raised or discussed. In

short, plaintiff has failed to present any evidence, direct or circumstantial, that

her disability played a role in the discipline imposed. Under these facts, we

conclude that no reasonable jury could conclude that defendant's complaints

about her performance, many of which plaintiff admits, were a pretext for

disability discrimination.    We therefore affirm the trial court's summary

judgment order.

      The remainder of plaintiff's arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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