NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3680-18T3
ARMANDO RIOS, JR.,
Plaintiff-Appellant,
v.
MEDA PHARMACEUTICAL, INC., TINA CHENG-AVERY, and GLENN GNIRREP,
Defendants-Respondents,
and
MYLAN INC.,
Defendant. ___________________________
Argued telephonically May 6, 2020 – Decided July 1, 2020
Before Judges Koblitz, Whipple, and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0763-17. William R. Stoltz argued the cause for appellant (Law Offices Rosemarie Arnold, attorneys; Maria Luppino and William R. Stoltz, on the briefs).
John M. Losinger argued the cause for respondents (Wilson Sonsini Goodrich & Rosati, PC, and Saiber LLC, attorneys; Marina C. Tsatalis and John M. Losinger, on the brief).
PER CURIAM
Plaintiff Armando Rios, Jr. appeals from a March 20, 2019 summary
judgment dismissal of his complaint against defendants Meda Pharmaceuticals,
Inc. (Meda), Tina Cheng-Avery, and Glenn Gnirrep. We affirm.
Plaintiff, a Hispanic male, was hired in May 2015 in the Marketing
Department at Meda after being personally interviewed by Tina Cheng-Avery,
her supervisor Stuart Loesch, and other executives. Plaintiff's employment was
"at will," meaning he could be terminated at any time with or without cause,
which plaintiff acknowledged by signing the offer letter.
Cheng-Avery, who had recommended to Loesch that they hire plaintiff,
was plaintiff's direct supervisor. Soon after plaintiff began working, she began
documenting his performance, maintaining a document entitled "2015-2016
Performance Observations—Armando Rios." In it, she listed specific
deficiencies with plaintiff's performance and the dates on which she met with
A-3680-18T3 2 plaintiff to counsel him on what she and Loesch believed he needed to do to
improve his performance.
Plaintiff asserts that in the first few months of his employment, there were
four events he contends constitute the basis of a hostile work environment claim.
First, plaintiff asserted that in June 2015, while he and Cheng-Avery were alone
in her office, he told her he and his wife were looking for a new home, to which
she allegedly responded "it must be hard for a [s]pic to have to get FHA 1 loans."
He claimed he shared the incident with Gnirrep, 2 the Director of Human
Resources (HR), probably within twenty-four hours, but Gnirrep did not take
notes, and plaintiff did not produce any written record of his own. Nor did
plaintiff file a formal complaint, as he thought "speaking with [Gnirrep] would
maybe initiate some procedures as he was the head of HR . . . . I was only in
my role for a very short time so I was a little nervous and scared."
Plaintiff asserted he met with Gnirrep again about a month later after
Cheng-Avery made a second comment while casting a role for a commercial that
an actress "would work if she didn't look too [s]pic[-]y." The third incident
plaintiff alleged was in September 2015; he asserted that while he was within
1 Federal Housing Administration. 2 Gnirrep passed away unexpectedly in August 2018 and was never deposed. A-3680-18T3 3 earshot, Cheng-Avery made a comment to two of plaintiff's female co-workers,
a peer and a subordinate, "about leveraging girl power, that girls gotta stick
together to . . . solidarity to push the business forward." He alleged he told
Gnirrep within twenty-four hours. The fourth incident occurred in late 2015,
when plaintiff contends the same co-workers, and a third, told him that Cheng-
Avery thought the men in certain departments were not as competent as the
women.
In February 2016, after plaintiff's poor performance at a January 2016
marketing conference was reported to Cheng-Avery by both an internal
employee and outside vendor Emerson Group, she and Loesch placed plaintiff
on probation. They informed plaintiff he would be reevaluated at the end of
May, but if they saw no immediate and substantial improvement before then he
was subject to additional action, up to and including termination. Plaintiff wrote
a memorandum responding to the alleged performance deficiencies point-by-
point, which he asserted he delivered to Gnirrep to give to Cheng-Avery.
A month later, in March 2016, plaintiff received a negative year-end
performance review and was given a detailed performance improvement plan.
After weekly meetings with Cheng-Avery as part of this performance
improvement plan, plaintiff improved only slightly over the next two months;
A-3680-18T3 4 an April 21 email indicated his level of improvement was unacceptable and
reminded him he must show immediate and significant improvement.
At the end of May 2016, plaintiff asked to meet with Matt Holley, general
counsel for Meda, to report that he believed Meda violated the Physicians
Payment Sunshine Act (Sunshine Act) 3 for improper hiring on two occasions;
he asserted he also had previously made a verbal report to Gnirrep as to one of
those allegedly-improper hires in January 2016. The day after his meeting with
Holley, plaintiff's employment was terminated by Cheng-Avery and Loesch.
Plaintiff filed a complaint in March 2017 and asserted claims under the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, for
wrongful termination based on his Sunshine Act reports, and under the New
Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, for
harassment and hostile work environment based on his national origin and
gender.
Plaintiff's complaint asserted five counts. Count one alleged that Cheng-
Avery, as his supervisor, created a hostile work environment by making
3 42 U.S.C. § 1320a-7h, enacted as part of the Affordable Care Act, requires pharmaceutical manufacturers that participate in federal health care programs to track and report payments and transfers of value given to physicians and teaching hospitals. A-3680-18T3 5 comments about both his national origin and his gender—the two "spic"
comments and the "girl power" reference—as well as by favoring female
employees and calling male employees unworthy. Plaintiff alleged Cheng-
Avery retaliated for his complaints to Gnirrep by taking staff away to ensure he
was unable to perform his job, and also took job responsibilities away from
plaintiff and assigned them to female employees to punish, embarrass, and
humiliate him, as well as to discriminate against him because he is Hispanic and
male.
Count two alleged Gnirrep had a duty to timely and fairly investigate
plaintiff's complaints and take steps to prevent a hostile work environment and
national origin and gender discrimination, but that he did not do so and rather
allowed Cheng-Avery to remain in a supervisory role over plaintiff. Plaintiff
contended Gnirrep told Cheng-Avery about his complaints, which made her
discrimination and harassment of plaintiff worse.
Count three asserted Meda had a duty to have a well-publicized and
effective training program and monitoring mechanism through which an anti-
discrimination policy or anti-harassment policy could be enforced, and they
failed to do so.
A-3680-18T3 6 Count four alleged plaintiff discovered Meda violated the Sunshine Act ,
and that when he reported this to Holley on May 31, 2016, he was subjected to
retaliation by Meda, Cheng-Avery, and Gnirrep in that he was "wrongfully
terminated the day after his report." Plaintiff contended there was a causal
connection between his reporting and his termination. Count five alleged
Cheng-Avery engaged in conduct to cause plaintiff severe emotional distress.
After the conclusion of discovery, defendants filed a motion for summary
judgment. On March 20, 2019, after a hearing, the court granted defendants
summary judgment on all counts and issued a thorough written decision. This
appeal followed.
I.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479
(2016). Under Rule 4:46-2(c), a motion for summary judgment should be
granted where "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 that the moving party is
entitled to a judgment or order as a matter of law." A genuine issue of material
fact exists where, when viewed in the light most favorable to the nonmoving
A-3680-18T3 7 party, a rational factfinder could find in favor of the non-moving party. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 540 (1995).
It is not enough to produce "bare conclusions lacking factual support" or
"self-serving statements." Worthy v. Kennedy Health Sys., 446 N.J. Super. 71,
85 (App. Div. 2016) (citations omitted). The non-movant must produce
"competent evidential material beyond mere speculation and fanciful
arguments." Ibid. (citations omitted). Although a court is not to make
credibility determinations, the court is not required "to turn a blind eye to the
weight of the evidence; the 'opponent must do more than simply show that there
is some metaphysical doubt as to the material facts.'" Triffin v. Am. Intern.
Grp., Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (quoting Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d. Cir. 1992)).
On appeal, plaintiff argues summary judgment was improvidently granted
because he raised genuine issues of material fact as to the reason he was fired;
as to whether the alleged discriminatory conduct of defendants was severe or
pervasive so as to support a hostile work environment claim; and as to whether
defendants' proffered reasons for his firing were pretextual. He also argues the
court should have permitted an amendment to his complaint.
II.
A-3680-18T3 8 We first address plaintiff's CEPA claim. N.J.S.A. 34:19-1 to -14 was
enacted to protect employees and to encourage them to report illegal or unethical
activities in the workplace, as well as to discourage employers in both the public
and private sector from engaging in such conduct. Dzwonar v. McDevitt, 177
N.J. 451, 461 (2003) (citing Abbamont v. Piscataway Twp. Bd. Of Educ., 138
N.J. 405, 431 (1994)). N.J.S.A. 34:19-3(c), in relevant part, states that an
employer shall not take any retaliatory action against an employee because the
employee objects to an activity, policy, or practice which the employee
reasonably believes is in violation of a law, or a rule or regulation promulgated
pursuant to law.
A plaintiff bringing a cause of action under N.J.S.A. 34:19-3(c) must show
that: (1) they reasonably believed their employer's conduct was violating a law,
rule, or regulation; (2) they performed a whistle-blowing activity described in
N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against them;
and (4) there is a causal connection between the whistle-blowing activity and
the adverse employment action. Dzwonar, 177 N.J. at 462 (citing Kolb v. Burns,
320 N.J. Super. 467, 476 (App. Div. 1999)). An adverse employment action is
one that results in a change in the terms and conditions of the employment,
including termination, a reduction in compensation, or withdrawal of benefits.
A-3680-18T3 9 Maimone v. City of Atlantic City, 188 N.J. 221, 235-36 (2006). However,
"filing a CEPA claim 'does not insulate the complaining employee from
discharge or other disciplinary action for reasons unrelated to the complaint.'"
Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360-61 (App. Div. 2002)
(quoting Higgins v. Pascack Valley Hosp., 158 N.J. 404, 424 (1999)).
Where the plaintiff asserts a pretext theory, once plaintiff establishes the
first three elements, the defendant must show a "legitimate, nondiscriminatory
reason" for the adverse decision to counter the fourth element of a causal
connection. Kolb, 320 N.J. Super. at 479. Once the defendant has done so, the
plaintiff must raise a "genuine issue of material fact" as to whether the
explanation is pretextual, or whether "the 'retaliatory discrimination was more
likely than not a determinative factor in the decision.'" Ibid. (quoting Bowles v.
City of Camden, 993 F. Supp. 255, 262 (D.N.J. 1998)).
The plaintiff does not need to provide direct evidence, but must show
"some evidence, direct or circumstantial, from which a reasonable factfinder
could conclude that defendants' proffered reasons were 'either a post hoc
fabrication or otherwise did not actually motivate the employment action (that
is, the proffered reason is a pretext).'" Id. at 480 (quoting Romano v. Brown &
Williamson Tobacco Corp., 284 N.J. Super. 543, 551 (App. Div. 1995)). In the
A-3680-18T3 10 absence of such evidence, and where a defendant has demonstrated a valid
reason that justified an employee's termination, plaintiff's burden is not met, and
summary judgment may be granted. See Massarano v. N.J. Transit, 400 N.J.
Super. 474, 492 (App. Div. 2008) (stating retaliation was not shown where , even
had plaintiff been able to meet the first three elements, defendant demonstrated
plaintiff's demeanor was obstructionist and insubordinate, which justified her
termination, and plaintiff would have had to meet her burden to show the reason
was pretextual for her claim to survive summary judgment). While temporal
proximity of a protected act and an adverse employment action "is one
circumstance that may support an inference of a causal connection," Maimone,
188 N.J. at 237 (emphasis added), "[t]emporal proximity, standing alone, is
insufficient to establish causation," Hancock, 347 N.J. Super. at 361.
Here, while plaintiff may have reasonably believed Meda was violating
the Sunshine Act; the meeting with Holley was a whistle-blowing activity; and
he was terminated, there is no competent evidence in the record to support a
causal relationship. Nothing in the record supports the conclusion that Cheng-
Avery and Loesch, who were solely responsible for plaintiff's firing, knew about
his Sunshine Act report. Rather, Cheng-Avery did not appear to know about it
at all, and Loesch stated he only knew about it when Holley was wrapping up
A-3680-18T3 11 his investigation into the claims, which was several days after plaintiff was
terminated. Gnirrep had no role in either plaintiff's hiring or termination, and
while it is possible Gnirrep relayed that plaintiff requested a meeting with
Holley to Cheng-Avery and Loesch, it is mere speculation. Further, Cheng-
Avery and Loesch stated they decided to terminate plaintiff on or around May
23, which was the week before plaintiff's meeting with Holley.
Additionally, as required under Kolb, defendants presented
documentation of plaintiff's poor performance that justified his termination, to
which plaintiff was required to present "some evidence" that this reason was
pretextual. While plaintiff argues the February memo and probation were
pretextual as a result of his purported oral Sunshine Act report to Gnirrep in
January 2016, there is no evidence, other than plaintiff's own assertion, that this
oral report was ever made to Gnirrep in January 2016, or even if it was, that
anyone else knew about it. Nor is there any evidence that the performance
reports were fabricated, and plaintiff was in fact performing well, other than
plaintiff's own bald assertions.
Because plaintiff produced no competent evidence from which a
reasonable factfinder could conclude defendants' proffered reason for
terminating him was a fabrication or did not motivate the termination, as
A-3680-18T3 12 required under Kolb, 320 N.J. Super. at 480, summary judgment on the CEPA
claim was proper.
III.
We now address plaintiff's NJLAD claims of a hostile work environment.
Under the NJLAD, N.J.S.A. 10:5-1 to -49, it is unlawful to discriminate against
an individual in employment compensation or in terms, conditions, or privileges
of employment on the basis of sex or national origin. N.J.S.A. 10:5-12(a).
Plaintiff argues that, as a Hispanic male, he is in a protected class, held a
position for which he was objectively qualified, and presented evidence he
suffered adverse employment actions as a result of his gender and national
origin. He asserts those employment actions were being deprived of two direct
reports promised to him when he was hired; having tasks re-assigned from him
to less qualified female employees; and being placed on a pretextual
performance improvement plan, which eventually led to his termination.
Plaintiff argues that under Taylor v. Metzger, 152 N.J. 490 (1998), a single
derogatory comment directed against a subordinate employee by a supervisor,
under particular circumstances, can create a hostile work environment in
violation of the NJLAD. Plaintiff argues that Cheng-Avery's denial she used the
word "spic" creates a fact issue that should have gone to a jury.
A-3680-18T3 13 To state a claim for harassment under the NJLAD, a male Hispanic
plaintiff must show: (1) the complained-of conduct would not have occurred but
for the employee's gender or national origin; (2) it was severe or pervasive
enough that; (3) a reasonable person would believe; (4) the conditions of
employment were altered and the working environment is hostile or abusive.
See Lehmann v. Toys R Us, Inc., 132 N.J. 587, 600, 603-04 (1993).
In determining whether conduct was severe or pervasive, the harassing
conduct as a whole must be evaluated, not its effect on the plaintiff or the work
environment. Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196-
97 (2008). "[N]either a 'plaintiff's subjective response' to the harassment, nor a
defendant's subjective intent," controls whether a hostile work environment
exists. Cutler v. Dorn, 196 N.J. 419, 431 (2008) (internal citations omitted)
(quoting Lehmann, 132 N.J. at 613). When determining whether the conduct
would cause a reasonable person to believe the work environment is hostile, the
courts must consider the cumulative effect of the conduct, not just the isolated
instances of conduct. Godfrey, 196 N.J. at 196-97. This requires an assessment
of the totality of the circumstances, in which the court should consider "the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
A-3680-18T3 14 unreasonably interferes with an employee's work performance." Cutler, 196 N.J.
at 432 (quoting Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003)).
The "severe or pervasive" standard may be met by a single remark if a
rational factfinder could reasonably determine, on the basis of plaintiff's
evidence, that a discriminatory insult directed at him or her was, under the
surrounding circumstances, sufficiently severe to have created a hostile work
environment. Taylor, 152 N.J. at 498-500. This is to be viewed as a reasonable
person similarly-situated to the plaintiff. Id. at 500, 506. Whether conduct is
sufficiently severe "can be determined only by considering all the
circumstances, and this determination is left to the trier of fact." Id. at 502
(quoting Nadeau v. Rainbow Rugs, 675 A.2d 973, 976 (Me. 1996)).
"Racial epithets are regarded as especially egregious and capable of
engendering a severe impact." Ibid. "The meaning of a racial epithet is often a
critical, if not determinative, factor in establishing a hostile work environment. "
Ibid. The word "spic" is a national origin epithet that under Taylor, even if only
uttered twice, could have met the severity requirement for harassment, and the
two uses of the word "spic," could, as a matter of law, sustain a hostile
environment claim. However, the circumstances must be so extreme so as to
actually, "from the perspective of a reasonable [person similarly-situated as
A-3680-18T3 15 plaintiff], make the working environment hostile," id. at 500, and "severity and
workplace hostility are measured by surrounding circumstances," id. at 506.
Here, the court's written decision reflects that it carefully parsed the record
to reach the conclusion that the factual issues raised by plaintiff as to the alleged
motivations or rationale behind the adverse employment actions he asserted—
the lack of two hires, the allegedly reassigned tasks, and the performance
improvement plan—did not raise a question for the jury. While the use of a
national origin epithet even once or twice can, as a matter of law, in some
circumstances meet the severe or pervasive standard to constitute a hostile work
environment, plaintiff's theory was that he was placed on probation because he
reported the offensive comments to Gnirrep of HR. However, even accepting
as true that Cheng-Avery used the pejorative word, there is no evidence that
Cheng-Avery or Loesch knew he reported this behavior to HR. Indeed, the only
evidence that he reported the statements is his own uncorroborated testimony.
He cannot rely on speculation that Cheng-Avery and Loesch came to learn of it
and retaliated.
As to the gender-discriminatory comments, despite plaintiff's assertion
that the "girl power" and "men are unworthy" comments were made to his co-
workers, not only do those not rise to the level of severity of a racial or national
A-3680-18T3 16 origin epithet, two comments over the course of a year were not pervasive, and
plaintiff did not produce any evidence of these comments—no certifications or
affidavits of the co-workers, and no e-mails or even any of his own
documentation in support of these allegations. Further, there is no evidence of
his purported reports to Gnirrep, and plaintiff did not follow up with him to
ensure any action was taken or a report made.
Although plaintiff was denied the opportunity to hire the two direct reports
as promised, no one was permitted to hire anyone because of a company-wide
freeze. Thus, the entry of summary judgment is supported by the record.
IV.
Finally, plaintiff argues he should have been allowed to amend his
complaint to add a claim for wrongful termination under the NJLAD to conform
to the evidence. Plaintiff's complaint only alleged his probation was the result
of discrimination, and his termination was because of his Sunshine Act report;
he did not assert his termination was caused by his NJLAD claims of
discrimination until his opposition to summary judgment. The court did not
permit him to expand his claim, and plaintiff argues it should have, as a court's
discretion to amend a complaint to conform to the evidence, even after
judgment, should be liberally exercised under Rule 4:9-1 and -9-2.
A-3680-18T3 17 Under Rule 4:9-2, an amendment to the pleadings to conform to the
evidence may be made upon motion of any party at any time, even after
judgment, where issues not raised by the pleadings and pretrial order are tried
by consent or without the objection of the parties. "The trial court's broad
discretion to permit amendment to conform to the evidence is required to be
liberally exercised," but where a "beyond the issues as framed" objection is
made, it "must be exercised with due regard to the opportunity of the opposing
party to meet the evidence." Pressler & Verniero, Current N.J. Court Rules, cmt.
on R. 4:9-2 (2019) (citations omitted). "The opposing party will ordinarily be
deemed to have been on notice sufficient to meet that evidence if the issue has
been injected into the case prior to trial even if in a technically deficient
manner." Ibid. (citations omitted).
Here, although plaintiff did not assert his termination was caused by his
NJLAD claim in either his complaint or deposition testimony, it can be inferred
in that he asserted in both his complaint and deposition that his NJLAD claim
caused his probation and negative performance reviews, which defendants
contend ultimately led to his termination. However, even had plaintiff been
permitted to amend his complaint, a de novo review of the record in the light
most favorable to plaintiff reveals he could not show the reasons defendants
A-3680-18T3 18 gave for terminating his employment were pretextual, making summary
judgment appropriate and rendering the need to amend the complaint moot.
While plaintiff argues he has presented sufficient circumstantial evidence
to create an issue of fact for a jury as to whether his termination was the result
of his alleged poor performance or due to his national origin and gender, because
he disputed all defendants' allegations of poor performance in the memo randum
he wrote in response to being placed on probation, we disagree.
To address the difficulty of proving discriminatory intent for an adverse
employment claim, because direct proof "is often unavailable or difficult to
find," New Jersey adopted the procedural burden-shifting methodology in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which allows a
plaintiff to make his or her case through circumstantial evidence. Zive v.
Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). Under that methodology:
(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate non-discriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application.
[El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 166 (2005) (quoting Dixon v. Rutgers, the State Univ. of N.J., 110 N.J. 432, 442 (1988)).]
A-3680-18T3 19 In a termination context, the elements of prong one, a prima facie case,
are that (i) plaintiff was in the protected group; (ii) was performing his or her
job at a level that met the employer's legitimate expectations; (iii) was
terminated; and (iv) the employer sought someone to perform the same work
after plaintiff left. Zive, 182 N.J. at 450 (citing Clowes v. Terminix Int'l Inc.,
109 N.J. 575, 597 (1988)).
To satisfy prong one, the evidentiary burden at the prima facie stage is
"rather modest: it is to demonstrate to the court that plaintiff's factual scenario
is compatible with discriminatory intent, that discrimination could be a reason
for the employer's action." Id. at 447 (quoting Marzano v. Computer Sci. Corp.,
91 F.3d 497, 508 (3d Cir. 1996)).
As to element (i) of prong one, it is undisputed that plaintiff belongs to a
protected class. As to element (ii), in a termination context, if the employee
merely "adduces evidence that he [or she] has, in fact, performed in the position
up to the time of termination, the slight burden of the second [element] is
satisfied," and only the evidence of the plaintiff is to be considered. Id. at 455.
Performance markers by the employer are not to be considered at this stage, and
plaintiff's proofs "can come from records documenting the plaintiff's longevity
in the position at issue or from testimony from the plaintiff or others that [he or]
A-3680-18T3 20 she had, in fact, been working within the title from which [he or] she was
terminated." Ibid. Here, plaintiff had not been in his position very long, but it
is not disputed he was "working within the title from which [he or] she was
terminated," so he has met the second element of prong one.
As to element (iii), it is undisputed plaintiff was terminated. As to element
(iv), it is undisputed that defendants did not hire anyone to fill plaintiff's
position. While defendants argue this means plaintiff cannot make a prima facie
case, it can be inferred that if Meda had not been bought by Mylan, Inc. and all
their employees subsequently terminated, they would have sought to fill his
position. Therefore, plaintiff has met prong (1) in asserting a prima facie case.
As to prong (2), however, defendants have provided sufficient evidence
in the form of the depositions and certifications of plaintiff's direct supervisor
Cheng-Avery and her supervisor Loesch, as well as documentation of plaintiff's
negative performance starting the month after he was hired, as well as an outside
report of his performance at the Las Vegas convention from the Emerson Group,
to show plaintiff's employment was terminated because of his inadequate
performance, which he was given a chance to improve, but did not. This was
despite the initial probation memo, which indicated a sense of urgency by stating
he must show "immediate and substantial improvement" before May 2016, and
A-3680-18T3 21 if they did not see such, he would be "subject to additional action up to and
including termination." This message was repeated in Cheng-Avery's weekly
emails to plaintiff summarizing their meetings beginning April 21, which stated
he was still not meeting performance improvement expectations and urged him
to focus on achieving "significant and immediate improvement as requested."
As to prong (3), plaintiff is required to "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." Id. at 455-56 (quoting Fuentes v. Perskie, 32
F.3d 759, 764 (3d Cir. 1994)). The plaintiff must show this by a preponderance
of the evidence. Id. at 449.
Here, plaintiff's proof that defendants' reasons are false is his response
memorandum where he specifically denies all the accusations regarding his
performance, which he contends he gave to Gnirrep to give to Cheng-Avery.
However, other than this self-created assessment, plaintiff does not produce any
competent evidence that the performance memorandum, the year-end
performance review, or the 2015-2016 performance observations were false: he
produced no certifications or affidavits from co-workers or others that attest to
A-3680-18T3 22 his good performance; no copies of emails he purports Cheng-Avery sent him
that praised him for his excellent work; and no copies of communications he
alleges he received from Emerson Group sales persons refuting the Emerson
Group report on his poor convention performance. Since he was on probation
starting in March with a clear statement in the memorandum indicating
termination was a potential consequence if he did not improve, plaintiff had
ample notice and opportunity to compile this type of documentation in
anticipation of potential termination.
As to whether a discriminatory reason was more likely than not the
motivating or determinative cause of his termination, plaintiff asserts his alleged
reports to Gnirrep about Cheng-Avery's alleged discriminatory comments—
which are not corroborated anywhere by email, plaintiff's own documentation,
or certifications—resulted in an orchestrated plan to cast plaintiff in a negative
light and remove him from the organization. This is not a reasonable inference
that may be drawn from the facts, but rather mere speculation, as there is no
indication that Cheng-Avery ever knew of these purported reports by plaintiff
to Gnirrep. Further, while plaintiff argues he was entitled to a follow-up
assessment in May 2016, he was an at-will employee who was not entitled to
any kind of pre-termination process.
A-3680-18T3 23 In sum, the lack of competent evidence in the record makes summary
judgment proper on all claims.
Affirmed.
A-3680-18T3 24