NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0791-22
JAN DASHER,
Plaintiff-Appellant,
v.
UNITED AIRLINES, RICK HOEFLING, KELLY TOLBERT, GEORGE HENDY,
Defendants-Respondents,
and
R.D.,1
Defendant. ___________________________
Submitted February 5, 2024 – Decided March 6, 2024
Before Judges DeAlmeida and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4151-18.
1 We use initials and pseudonyms to protect the confidentiality of the alleged rape victim in these proceedings. Luretha M. Stribling, attorney for appellant.
Buchanan Ingersoll & Rooney, PC, attorneys for respondents (Michael D. Hall, of counsel and on the brief; Leonard V. Jones, on the brief).
PER CURIAM
Plaintiff, Jan Dasher, appeals from the trial court's award of summary
judgment in favor of defendants United Airlines, Inc. (United), Rick Hoefling,
Kelly Tolbert, and George Hendy, and from the trial court's dismissal of his
complaint against R. D. after a proof hearing.
We affirm for the reasons expressed in the well-reasoned, twenty-five-
page, written opinion of the Honorable Mayra V. Tarantino. We add the
following comments.
United produced sufficient evidence of its race neutral justification for its
decision to terminate plaintiff, and plaintiff failed to demonstrate a disputed
material issue precluding summary judgment. As aptly detailed by Judge
Tarantino, plaintiff maintained a sexual relationship with R.D., his subordinate,
without reporting the relationship to United as required by United's Code of
Ethics and Business Conduct (Code of Ethics). When questioned about the
relationship, he prevaricated, in contravention of United's Working Together
Guidelines (WTG). After United obtained definitive proof of the relationship,
A-0791-22 2 including sexually explicit text messages and videos between plaintiff and R.D.,
he prevaricated again during United's investigation of R. D.'s allegations. Later,
while internally appealing the decision to terminate him, plaintiff admitted in
writing he acted inappropriately and United had a valid basis for his termination.
Plaintiff, who is Black, alleges United's justification for his termination
was a pretext for race discrimination because non-minority supervisors who
maintained sexual relationships with subordinates were not terminated , but he
failed to offer any evidence to support that allegation. And, although plaintiff
now vehemently denies having been R.D.'s supervisor, he testified to the
contrary during his deposition. We need not credit a "sham affidavit" when it is
proffered solely to preclude summary judgment in the movant's favor. Metro
Mktg., LLC v. Nationwide Vehicle Assurance, Inc., 472 N.J. Super. 132, 148
(App. Div. 2022) (quoting Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002)).
Plaintiff's affidavit does not provide a reasonable explanation for the
contradiction and fails to clarify any existing confusion from his deposition; it
serves only to patently contradict his prior deposition testimony and was
properly disregarded by the trial court. Id. at 149 (quoting Shelcusky, 172 N.J.
at 201-02).
A-0791-22 3 Similarly, plaintiff's claim that he was transferred from the bag room to
the Transfer of Bags (TOB) area because of his race is belied by the record. The
employee responsible for plaintiff's transfer is Black. Three of the four
employees that plaintiff identified in his complaint as never having been
transferred are also Black. Defendants testified managers and the entire
leadership team were directed to be proficient in different work areas for
succession and planning purposes. Plaintiff acknowledged the benefit of this
practice. He also confirmed there was no monetary or hourly discrepancy
between a bag room and a TOB area assignment. Plaintiff testified he previously
worked in the TOB area as a supervisor, undermining his claim that the practice
was unusual. Although plaintiff claims the transfer was a demotion because
there were fewer employees to supervise and other employees viewed the TOB
area as a demotion, plaintiff produced no evidence to support this allegation,
other than his own opinion.
In sum, there is no evidence defendants acted with discriminatory intent,
and hence, no evidence United's legitimate reason for terminating plaintiff was
pretextual. In a disparate treatment claim, as plaintiff raises here, we utilize the
burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 320, 330
A-0791-22 4 (2010). Pursuant to the McDonnell Douglas analysis, a plaintiff must present a
prima facie case of discrimination. If demonstrated, the burden shifts to the
defendant to proffer a legitimate, non-discriminatory reason for the action
complained of and, if this burden of production is satisfied, the burden reverts
to the plaintiff to prove defendant's reason was pretextual. Id. at 31 (quoting
Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988)). At the
second stage, although there is an inference of discrimination, Zive v. Stanley
Roberts, Inc., 182 N.J. 436, 449 (2005), the burden on the employer is "relatively
light," Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994); see A.D.P. v.
ExxonMobil Rsch. & Eng'g Co., 428 N.J. Super. 518, 535 (App. Div. 2012)
(noting the McDonnell Douglas framework shifts the burden of production, not
the burden of persuasion, to the defendant). As noted by Judge Tarantino, there
is ample evidence in the record to support United's legitimate, non-
discriminatory reason for terminating plaintiff. Plaintiff's termination letter
stated plaintiff was terminated because of his violations of United's Code of
Ethics and WTG. Hoefling, Hendy, and Tolbert each provided the same
explanation for plaintiff's termination in their depositions.
Plaintiff was terminated for disregarding the Code of Ethics by failing to
disclose his relationship with R.D. and violating multiple expectations in the
A-0791-22 5 WTG when he prevaricated about the relationship and the videos and texts in
the subsequent investigation.
Plaintiff also claims the trial court erred by dismissing his claims against
R.D. after a proof hearing. R.D. failed to answer the complaint and default
judgment was entered against her. Where a defendant has defaulted, a court
must nevertheless hold a proof hearing and a plaintiff must establish his claims.
R. 4:43-2; see also Chakravarti v. Pegasus Consulting Grp., Inc., 393 N.J. Super.
203, 210 (App. Div. 2007) ("Judgment should not be entered without a proof
hearing . . . ."). Although, in the context of a proof hearing "trial courts have
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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-0791-22
JAN DASHER,
Plaintiff-Appellant,
v.
UNITED AIRLINES, RICK HOEFLING, KELLY TOLBERT, GEORGE HENDY,
Defendants-Respondents,
and
R.D.,1
Defendant. ___________________________
Submitted February 5, 2024 – Decided March 6, 2024
Before Judges DeAlmeida and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4151-18.
1 We use initials and pseudonyms to protect the confidentiality of the alleged rape victim in these proceedings. Luretha M. Stribling, attorney for appellant.
Buchanan Ingersoll & Rooney, PC, attorneys for respondents (Michael D. Hall, of counsel and on the brief; Leonard V. Jones, on the brief).
PER CURIAM
Plaintiff, Jan Dasher, appeals from the trial court's award of summary
judgment in favor of defendants United Airlines, Inc. (United), Rick Hoefling,
Kelly Tolbert, and George Hendy, and from the trial court's dismissal of his
complaint against R. D. after a proof hearing.
We affirm for the reasons expressed in the well-reasoned, twenty-five-
page, written opinion of the Honorable Mayra V. Tarantino. We add the
following comments.
United produced sufficient evidence of its race neutral justification for its
decision to terminate plaintiff, and plaintiff failed to demonstrate a disputed
material issue precluding summary judgment. As aptly detailed by Judge
Tarantino, plaintiff maintained a sexual relationship with R.D., his subordinate,
without reporting the relationship to United as required by United's Code of
Ethics and Business Conduct (Code of Ethics). When questioned about the
relationship, he prevaricated, in contravention of United's Working Together
Guidelines (WTG). After United obtained definitive proof of the relationship,
A-0791-22 2 including sexually explicit text messages and videos between plaintiff and R.D.,
he prevaricated again during United's investigation of R. D.'s allegations. Later,
while internally appealing the decision to terminate him, plaintiff admitted in
writing he acted inappropriately and United had a valid basis for his termination.
Plaintiff, who is Black, alleges United's justification for his termination
was a pretext for race discrimination because non-minority supervisors who
maintained sexual relationships with subordinates were not terminated , but he
failed to offer any evidence to support that allegation. And, although plaintiff
now vehemently denies having been R.D.'s supervisor, he testified to the
contrary during his deposition. We need not credit a "sham affidavit" when it is
proffered solely to preclude summary judgment in the movant's favor. Metro
Mktg., LLC v. Nationwide Vehicle Assurance, Inc., 472 N.J. Super. 132, 148
(App. Div. 2022) (quoting Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002)).
Plaintiff's affidavit does not provide a reasonable explanation for the
contradiction and fails to clarify any existing confusion from his deposition; it
serves only to patently contradict his prior deposition testimony and was
properly disregarded by the trial court. Id. at 149 (quoting Shelcusky, 172 N.J.
at 201-02).
A-0791-22 3 Similarly, plaintiff's claim that he was transferred from the bag room to
the Transfer of Bags (TOB) area because of his race is belied by the record. The
employee responsible for plaintiff's transfer is Black. Three of the four
employees that plaintiff identified in his complaint as never having been
transferred are also Black. Defendants testified managers and the entire
leadership team were directed to be proficient in different work areas for
succession and planning purposes. Plaintiff acknowledged the benefit of this
practice. He also confirmed there was no monetary or hourly discrepancy
between a bag room and a TOB area assignment. Plaintiff testified he previously
worked in the TOB area as a supervisor, undermining his claim that the practice
was unusual. Although plaintiff claims the transfer was a demotion because
there were fewer employees to supervise and other employees viewed the TOB
area as a demotion, plaintiff produced no evidence to support this allegation,
other than his own opinion.
In sum, there is no evidence defendants acted with discriminatory intent,
and hence, no evidence United's legitimate reason for terminating plaintiff was
pretextual. In a disparate treatment claim, as plaintiff raises here, we utilize the
burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 320, 330
A-0791-22 4 (2010). Pursuant to the McDonnell Douglas analysis, a plaintiff must present a
prima facie case of discrimination. If demonstrated, the burden shifts to the
defendant to proffer a legitimate, non-discriminatory reason for the action
complained of and, if this burden of production is satisfied, the burden reverts
to the plaintiff to prove defendant's reason was pretextual. Id. at 31 (quoting
Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988)). At the
second stage, although there is an inference of discrimination, Zive v. Stanley
Roberts, Inc., 182 N.J. 436, 449 (2005), the burden on the employer is "relatively
light," Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994); see A.D.P. v.
ExxonMobil Rsch. & Eng'g Co., 428 N.J. Super. 518, 535 (App. Div. 2012)
(noting the McDonnell Douglas framework shifts the burden of production, not
the burden of persuasion, to the defendant). As noted by Judge Tarantino, there
is ample evidence in the record to support United's legitimate, non-
discriminatory reason for terminating plaintiff. Plaintiff's termination letter
stated plaintiff was terminated because of his violations of United's Code of
Ethics and WTG. Hoefling, Hendy, and Tolbert each provided the same
explanation for plaintiff's termination in their depositions.
Plaintiff was terminated for disregarding the Code of Ethics by failing to
disclose his relationship with R.D. and violating multiple expectations in the
A-0791-22 5 WTG when he prevaricated about the relationship and the videos and texts in
the subsequent investigation.
Plaintiff also claims the trial court erred by dismissing his claims against
R.D. after a proof hearing. R.D. failed to answer the complaint and default
judgment was entered against her. Where a defendant has defaulted, a court
must nevertheless hold a proof hearing and a plaintiff must establish his claims.
R. 4:43-2; see also Chakravarti v. Pegasus Consulting Grp., Inc., 393 N.J. Super.
203, 210 (App. Div. 2007) ("Judgment should not be entered without a proof
hearing . . . ."). Although, in the context of a proof hearing "trial courts have
been directed to view a plaintiff’s proofs 'indulgently,'" Heimbach v. Mueller,
229 N.J. Super. 17, 20 (App. Div. 1988), a plaintiff may be held to the burden
of establishing liability as well as damages, despite defendant's default, see
Johnson v. Johnson, 92 N.J. Super. 457, 465 (App. Div. 1966) (explaining
"[e]ven though a defendant’s answer is stricken for failure to make discovery,
the plaintiff may be . . . precluded from recovery where the proof which he offers
in support of his own case reveals a legal defense to his claim").
The trial court correctly dismissed plaintiff's NJLAD claims against R.D.
despite entry of the default judgment. Plaintiff was collaterally estopped from
relitigating those issues at the proof hearing. Summary judgment, unlike a
A-0791-22 6 default judgment, is a judgment on the merits and given preclusive effect. See
Adelman v. BSI Fin. Servs., Inc., 453 N.J. Super. 31, 40 (App. Div. 2018) (first
quoting Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 183 (App. Div.
1993); and then quoting Allesandra v. Gross, 187 N.J. Super. 96, 106 (App. Div.
1982)). Plaintiff's NJLAD claims against defendants were identical to the
claims he asserted against R.D., were litigated during defendants' motion for
summary judgment, decided on the merits, and plaintiff was a party to the
summary judgment proceedings. Ibid. (quoting Allen v. V & A Bros., Inc., 208
N.J. 114, 137 (2011)).
Lastly, the trial court did not err in failing to award any damages in
plaintiff's defamation claim against R.D. Plaintiff was not terminated because
of R.D.'s allegation of rape or sexual assault. Rather, he was terminated for
violations of United's Code of Ethics and WTG. Plaintiff failed to show his
specific economic or pecuniary loss – termination of his employment – stemmed
from R.D.'s statement and thus no damages are available to him. Plaintiff's
testimony at the proof hearing did not establish his reputation or standing in the
community was impaired. Although plaintiff testified other United employees
heard R.D.'s allegation, he failed to present any evidence his reputation or
standing among those employees was adversely affected.
A-0791-22 7 Affirmed.
A-0791-22 8