NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3168-22
SHARON GOMEZ,
Plaintiff-Appellant,
v.
INTERTEK TESTING SERVICES, NA, INC., INTERTEK USA, INC., CASSARENA KOPACZ, and JOE KEATING,
Defendants-Respondents. ____________________________
Submitted September 10, 2024 – Decided October 3, 2024
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7928-20.
Goldman Davis Krumholz & Dillon, P.C., attorneys for appellant (Paula M. Dillon, of counsel; Kelly A. Smith, on the briefs).
Lewis Brisbois Bisgaard & Smith LLP, attorneys for respondents (Elior D. Shiloh, Michael D. Thompson, and Brent A. Bouma, of counsel and on the brief). PER CURIAM
Plaintiff Sharon Gomez appeals from the May 11, 2023 Law Division
order, which granted defendants Intertek Testing Services, NA, Inc., Intertek
USA, Inc., Cassarena Kopacz, and Joe Keating summary judgment and
dismissed plaintiff's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
-50, claims. We affirm.
I.
We view the following facts established in the summary judgment record
in a light most favorable to plaintiff, the non-moving party. See Crisitello v. St.
Theresa Sch., 255 N.J. 200, 218 (2023). Intertek is a global corporation that
performs testing and inspection services throughout the United States. From
2003 to 2004, Intertek employed plaintiff at its Carteret branch location in the
administrative billing department. In 2012, plaintiff returned to Intertek as an
operations coordinator. She briefly left Intertek in 2014 fearing rumored
layoffs. After two months, she returned to Intertek until her termination in 2020.
As one of two operations coordinators, Intertek tasked plaintiff with
"provid[ing] the best service possible for petroleum clients," which included
"laboratory work, reporting, speak[ing] with field personnel . . . , perform[ing]
final documentation," and sometimes marketing. She regularly communicated
A-3168-22 2 with Intertek clients and field technicians but did not do field work. Plaintiff
shared work responsibilities with Carteret branch operations coordinator, David
Palkowetz, who Intertek employed since 1998.
Kopacz managed Intertek's Carteret, New Haven, and Albany branches.
Intertek authorized Kopacz to hire, promote, and make termination
recommendations for the employees she managed.
Beginning in late January 2020, defendant Keating, as senior vice
president of Intertek's sister company Intertek Testing Services [ITS], Canada
Limited, undertook "regional discussions" concerning headcount reductions in
Intertek's Carteret, Pennsylvania, and Virginia branches due to poor
performance causing financial strain. Keating frequently held meetings with
Kopacz to discuss improvement plans and also with Frank Bilski, the regional
human resources manager, to discuss business and personnel needs. Kopacz
proposed a new hybrid position, titled operations supervisor, seeking to employ
an existing field inspector to address quality management. The job
responsibilities included handling certifications, training new inspectors, and
occasionally going into the field. Kopacz offered field inspector Calixto Torres
the position; however, Torres's transition into the position was suspended until
September 2020 due to the onset of the COVID-19 pandemic in March.
A-3168-22 3 In April, due to the ongoing negative financial effects of the pandemic,
Intertek implemented multiple cost-cutting measures, including employee salary
reductions, decreased hours, and furloughs. On April 8, Intertek informed
plaintiff that due to a "temporary shortage of work in areas of [the] business,"
her salary would "be reduced" by approximately twenty-two thousand dollars a
year effective April 12. Intertek also furloughed six full-time employees,
terminated one employee, and cut part-time employee hours.
In August, Intertek informed Keating, Kopacz, and Bilski that a reduction
in force (RIF) was required. Per the directive, defendants implemented the RIF
using a "last in, first out method" (LIFO) based on years of service. Kopacz did
not conduct or evaluate previous performance reviews when applying the LIFO
policy to select employees for the RIF.
On September 9, Kopacz and Bilski informed plaintiff of her termination,
effective September 11, and explained that one operations coordinator position
was being eliminated. Kopacz certified Intertek chose plaintiff because she was
the operations coordinator with less employment time. Plaintiff's
responsibilities were then "distributed among the remaining members of the
team," including Torres, Kopacz, and Palkowetz. Intertek also terminated two
A-3168-22 4 other Carteret employees, an administrative assistant and a field inspector, along
with fifty-three male employees and eight female employees nationally.
On September 13, Torres assumed his new official job title of operations
supervisor. On July 30, Intertek hired Preston Smith as a business development
manager at the Carteret location. Smith's "position was meant to positively
impact the business of the Northeast Region by pursuing new clients and revenue
streams, developing new markets, and addressing operational issues negatively
impacting clients." Smith's salary was from regional overhead funds rather than
the Carteret branch. On October 22, Intertek additionally hired Eddison Reyes
to fill an operations manager position, beginning in November. Kopacz
supported Carteret's hiring of Reyes, reasoning the branch was "looking to
address the loss in revenue" and therefore needed to hire "an experienced
operations manager who would come with . . . a roster of clients."
On November 13, plaintiff filed a two-count complaint alleging gender
discrimination and aiding and abetting in violation of the LAD. Plaintiff
thereafter amended the complaint, adding a LAD retaliation claim. 1 On March
17, 2023, defendants moved for summary judgment.
1 Plaintiff is not appealing the dismissal of her retaliation claim. A-3168-22 5 Following oral argument, the court issued an order accompanied by an
oral statement of reasons granting defendants' motion and dismissing plaintiff's
complaint. Affording plaintiff all reasonable inferences of fact, the court found
a prima facie showing "she was the victim of unlawful discrimination" but
concluded plaintiff failed to show defendants' provided legitimate, non -
discriminatory reasons for termination were pretextual. Specifically, the court
found plaintiff demonstrated no material facts showing Intertek's reasons for
hiring Smith and Reyes were pretextual. The court reasoned businesses "often
have to spend money to increase revenue," which sometimes results in
termination of "competent long-term employees who do not bring in any
business." It further recognized plaintiff "had not demonstrated the skills to
bring in business and did not have a roster of clients." The court noted plaintiff
offered no reliable evidence she was qualified for the operations supervisor
position, noting "her lack of field experience." Further, plaintiff provided no
facts rebutting "the efforts of the Intertek defendants to consider termination as
a last resort," which was evidenced by its "utilizing reduced pay for existing . . .
employees and furloughs."
The court additionally found plaintiff's aiding and abetting claims failed,
as the LAD claim against Intertek was without merit. The court noted nothing
A-3168-22 6 in the record demonstrated Intertek "did anything inappropriate under the law
regarding the RIF" or "gender discrimination." Thus, the court held, "[i]n light
of that fact[,] I am granting summary judgment as to the individual defendants"
Kopacz and Keating.
On appeal, plaintiff argues the court erroneously granted summary
judgment after finding she failed to establish material issues of fact
demonstrating pretext and aiding and abetting by Keating and Kopacz.
II.
Our review of a trial court's summary judgment decision is de novo.
DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172, 180 (2024); see also
R. 4:46-2(c). "The court's function is not 'to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial.'" Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). To rule on summary
judgment, courts must determine "'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.'" DepoLink Ct. Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46
A-3168-22 7 (2007)). Our review entails determining "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." C.V. ex rel C.V. v. Waterford Twp.
Bd. of Educ., 255 N.J. 289, 305 (2023) (quoting Samolyk v. Berthe, 251 N.J.
73, 78 (2022) (internal quotation marks omitted)).
"Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard mandates that
the opposing party do more than 'point[] to any fact in dispute' in order to defeat
summary judgment." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016)
(alterations in original) (first quoting R. 4:46-2(c); and then quoting Brill, 142
N.J. at 529). "Summary judgment should be granted 'if the discovery and any
affidavits 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.'"
DeSimone, 256 N.J. at 180-81 (quoting Perez v. Professionally Green, LLC, 215
N.J. 388, 405 (2013)) (internal quotation marks omitted). Insubstantial
arguments based on assumptions or speculation are not enough to overcome
summary judgment. Brill, 142 N.J. at 529; see also Dickson v. Cmty. Bus Lines,
Inc., 458 N.J. Super. 522, 533 (App. Div. 2019).
A-3168-22 8 The LAD's remedial "purpose is nothing less than the eradication of the
cancer of discrimination." C.V., 255 N.J. at 306-07 (quoting Lehmann v. Toys
'R' Us, Inc., 132 N.J. 587, 600 (1993)) (internal quotation marks omitted). It
prohibits unlawful employment practices and discrimination "based on race,
religion, sex, or other protected status[] that creates a hostile work
environment." Cutler v. Dorn, 196 N.J. 419, 430 (2008); see also N.J.S.A.
10:5-12(a). "There is no single prima facie case that applies to all employment
discrimination claims. Instead, the elements of the prima facie claim vary
depending upon the particular cause of action." Victor v. State, 203 N.J. 383,
408 (2010).
To establish a prima facie case of wrongful termination based on gender
discrimination, a plaintiff must prove he or she: (1) was in a protected class; (2)
was performing the job at a level that met the employer's legitimate
expectations; (3) was nevertheless discharged; and (4) discharged under
circumstances giving rise to an inference of discrimination. Young v. Hobart
W. Grp., 385 N.J. Super. 448, 463 (App. Div. 2005). With respect to an alleged
RIF, "a plaintiff whose position was eliminated need not show that he or she was
replaced[] but must show that the employer retained someone outside the
protected class" to perform a job that he or she could perform. Baker v. Nat'l
A-3168-22 9 State Bank, 312 N.J. Super. 268, 289 (App. Div. 1998); see also Garnes v.
Passaic County, 437 N.J. Super. 520, 538-39 (App. Div. 2014).
"Establishment of a prima facie case gives rise to a presumption that the
employer unlawfully discriminated against the employee." Meade v. Township
of Livingston, 249 N.J. 310, 329 (2021) (quoting Bergen Com. Bank v. Sisler,
157 N.J. 188, 210 (1999)). In analyzing such claims under the LAD, New Jersey
adopted the "burden-shifting methodology" set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 729, 802-04 (1973). See id. at 328. Under this burden-
shifting analysis:
(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant must then show a legitimate nondiscriminatory 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.
[Ibid. (quoting Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 320, 331 (2010)).]
"The employer may obliterate that presumption 'with admissible
evidence of a legitimate, non[]discriminatory reason' for taking the employment
action at issue." Garnes, 437 N.J. Super. at 537 (quoting Bergen Com. Bank,
157 N.J. at 210). "At that point, the employee has an opportunity to prove that
the employer's asserted reason for the action is not true and is merely a pretext
A-3168-22 10 for discriminating among employees on an impermissible basis." Ibid. (citing
Bergen Com. Bank, 157 N.J. at 211).
III.
Plaintiff made a prima facie showing of gender discrimination as she:
belongs to a protected class; sufficiently performed as an operations coordinator
with Intertek; was discharged in 2020; and demonstrated discharge
circumstances that support inferences of gender discrimination, including
Intertek's hiring of male employees after her termination. We therefore
consider, under McDonnell's burden-shifting analysis, Intertek's
nondiscriminatory reasons for discharging plaintiff as an operations coordinator
and whether she has demonstrated material issues of fact supporting pretext for
gender discrimination, respectively.
Plaintiff contends that in granting Intertek summary judgment on her LAD
gender discrimination claim, the court erroneously failed to consider the factual
inferences rebutting Intertek's reasons for termination. Intertek substantiated
legitimate non-discriminatory reasons for its RIF, which included the necessity
to eliminate one of the operations coordinator positions for financial reasons and
plaintiff's termination occurring under its branch-wide LIFO policy. Plaintiff
specifically challenges Intertek's RIF decision and "the legitimacy of her
A-3168-22 11 selection for the RIF," arguing defendants improperly utilized LIFO
methodology by not utilizing objective or performance-related criteria. She
argues favorable inferences regarding her seniority at Intertek, qualifications in
the petroleum industry, and the fact Intertek favored male employees establishes
that Intertek's discharge reasons are pretext for its "discriminatory motive." We
are unpersuaded.
Plaintiff failed to factually refute Intertek implemented the 2020 RIF
based on its financial difficulties, compounded by the COVID-19 pandemic.
Keating's uncontroverted testimony established Intertek's legitimate financial
considerations for terminations. He explained Intertek issued a directive
requiring an RIF throughout the company's branches due to "the massive
[business] losses." Plaintiff's argument that the RIF was invalid because Keating
failed to provide specific financial goals is without merit; Keating testified the
goals of the RIF were "ongoing" and "very fluid[,] so it would be a moving
target." Keating clarified, "[i]t's a combination of revenue and cost," and
"headcount reductions" translate to "savings." Further, Bilski corroborated that
"look[ing] at the different job titles" and then deciding "what job titles to
eliminate" based on business needs and seniority determined layoffs. Kopacz
certified the decision to eliminate one of the two operations coordinators was
A-3168-22 12 based on the high salary level and ability to still satisfy the business needs. It is
also undisputed that prior to terminations, Intertek tried to address its financial
situation through pay cuts, reduction in hours, and furloughs.
We note plaintiff acknowledged Intertek's Carteret branch was financially
strained and experiencing losses well before 2020. In fact, in 2014, plaintiff
resigned due to her concerns over Intertek's financial stability as "they were
laying people off," and she was concerned about her retention. Further, she does
not dispute the COVID-19 pandemic shutdowns had a substantial, detrimental
effect on the petroleum industry and Intertek. The record amply supports the
court's determination that Intertek established a legitimate basis for the RIF.
Plaintiff also failed to demonstrate material issues of fact supporting her
argument that Intertek's LIFO RIF criteria was pretextual. Bilski testified
"business needs . . . first and foremost" and seniority determined layoffs.
Further, Bilski's certification established Intertek previously used the LIFO
policy, establishing policy consistency. Notably, plaintiff fails to cite, and our
research has not revealed, binding authority requiring an RIF to be conducted
based on performance-related criteria. Thus, plaintiff failed to establish material
issues of fact supporting that Intertek's LIFO RIF criteria was illegitimate and
pretext for gender discrimination against her.
A-3168-22 13 We also reject plaintiff's contention that she demonstrated pretext because
Intertek did not follow the workforce reduction LIFO policy with Torres.
Plaintiff avers Torres should have been discharged because he had fewer years
of service. Intertek hired Torres for the position of operations supervisor, while
plaintiff held the position of operations coordinator. Intertek established that
the LIFO termination policy was applied to employees working in the same titled
position after a position was eliminated under the RIF. Because Torres was in
a different titled position, no inference demonstrating pretext is established.
Further, plaintiff's argument that pretext is demonstrated because Kopacz
did not offer her the operations supervisor position also fails. The record
establishes the operations position required field experience. Specifically,
Kopacz testified plaintiff would have required six to twelve months of field
training to be qualified for the supervisor position. The record reflects Intertek
made the decision to promote Torres because of his field experience in March
2020, before the onset of the COVID-19 pandemic. Intertek thereafter put
Torres's promotion on hold due to the pandemic and consequently furloughed
him. Additionally, the salary for the position was less than what plaintiff was
earning. Plaintiff's assertion that material issues of fact exist demonstrating she
A-3168-22 14 "possessed the skill" to be operations supervisor is belied by the record as she
conceded to not having field experience.
We next address plaintiff's argument that she demonstrated an inference
of pretext because Intertek treated Palkowetz, a man in the same operations
coordinator position plaintiff held, more favorably. Palkowetz retained his
position as an operations coordinator in the Carteret branch because he began
working at Intertek in 1998 and had more years of service than plaintiff. Under
Intertek's LIFO policy, Palkowetz retained the position because he irrefutably
had seniority. Plaintiff's additional argument that she was the only female
operations coordinator at the Carteret branch with over fifteen years of
experience is also unavailing, as these facts do not establish a prima facie
showing that Intertek's legitimate reasons were pretext for gender
discrimination.
Plaintiff's contention that she established pretext because Intertek
improperly "hired numerous men to fill positions within the company" following
her termination is also without merit. The record demonstrates Intertek filled
each position to address client development and increase company revenue.
Plaintiff offered no competent evidence supporting her qualification for the two
revenue generating positions filled by Reyes and Smith. Cf. Garnes, 437 N.J.
A-3168-22 15 Super. at 539 (holding that where members outside of the protected class are
subsequently hired, retained, or promoted following an RIF, the employer must
"establish a justification" for employing those members while terminating
members within the protected class). Bilski's and Kopacz's uncontroverted
testimony was each position was revenue-generating and Intertek sought to
address the financial strain suffered. There is no material dispute regarding
Intertek's decision to hire specifically qualified employees to increase their
revenue, and plaintiff was not "similarly situated." Jason v. Showboat Hotel &
Casino, 329 N.J. Super. 295, 305 (App. Div. 2000) (defining "similarly situated"
as "possessing equivalent qualifications and working in the same job category
as plaintiff" (quoting Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 84-85
(1978))).
The court correctly found no material issues of fact demonstrating
"defendants' reasons for terminating [plaintiff's] position were not legitimate
and not discriminatory" business reasons. Plaintiff failed to establish a prima
facie showing of pretext; therefore, we discern no reasons to disturb the court's
comprehensive oral decision granting summary judgment in favor of defendants.
A-3168-22 16 IV.
Lastly, we turn to the dismissal of plaintiff's aid and abetting claims
against Kopacz and Keating. N.J.S.A. 10:5-12(a) prohibits unlawful
discrimination only by an "employer." An individual employee or supervisor is
not considered an employer under the LAD definitions. Tarr v. Ciasulli, 181
N.J. 70, 83 (2004). However, N.J.S.A. 10:5-12(e) makes "it . . . unlawful '[f]or
any person, whether an employer or an employee or not, to aid, abet, incite,
compel or coerce the doing of any of the acts forbidden [under the LAD],' and
such conduct may result in personal liability." Ibid. (second and fourth
alterations in original) (citation omitted) (quoting N.J.S.A. 10:5 -12(e)). An
employee may be liable as an aider or abettor if a plaintiff establishes:
(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.
[Id. at 84 (alteration in original) (quoting Hurley v. Atl. City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999)).]
Aiding and abetting liability requires "active and purposeful conduct." Ibid.
Plaintiff has not established a prima facie showing that Kopacz and
Keating committed wrongful acts aiding Intertek. As we have concluded
A-3168-22 17 dismissal of the gender discrimination claim against Intertek was warranted, we
need not further address plaintiff's LAD claim for individual liability against
Kopacz and Keating for aiding and abetting. See ibid. It is clear neither Kopacz
nor Keating have been shown to have participated in a tortious activity, as
plaintiff's termination was lawful under the LAD.
To the extent that we have not addressed plaintiff's remaining contentions,
it is because they lack sufficient merit to be discussed in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
A-3168-22 18