DOUGLAS HAZLETT VS. SANDY ALEXANDER, INC. (L-3875-15, PASSAIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1016-17T1
DOUGLAS HAZLETT,
Plaintiff-Appellant,
v.
SANDY ALEXANDER, INC.,
Defendant-Respondent.
__________________________
Submitted October 3, 2018 - Decided October 24, 2018
Before Judges Koblitz, Ostrer, and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-3875-15.
Laddey, Clark & Ryan, LLP, attorney for appellant
(Thomas N. Ryan, Jessica A. Jansyn, and Michael R.
Darbee, on the briefs).
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC,
attorneys for respondent (Andrew J. Bernstein and
Kaitlin R. Walsh, on the brief).
PER CURIAM
Plaintiff Douglas Hazlett appeals from the following orders: a June 23,
2017 order denying his motion to extend discovery; a September 18, 2017 order
granting summary judgment in favor of defendant Sandy Alexander, Inc.; and
an October 5, 2017 order denying plaintiff's motion for reconsideration of those
orders. We affirm.
Plaintiff, an employee of defendant for almost nine years, alleged he was
terminated from his sales and marketing position based on his age. Plaintiff
filed suit against defendant alleging age discrimination and a hostile work
environment.
Plaintiff's primary job responsibility for defendant involved sales and
marketing. Plaintiff's other job responsibilities included sales administration
and implementation of the company's "salesforce.com" software. Plaintiff's
duties also included marketing green technology initiatives, negotiating
renewable energy credits on behalf of defendant, and preparing an annual
sustainability report.
Defendant experienced financial difficulty in 2008, which continued
through 2015. In 2010, in an effort to improve defendant's financial situation,
plaintiff retained Design Squared, an outside marketing agency, to assist with
the company's marketing as a cost-saving measure. From 2010 through 2013,
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defendant paid Design Squared the following sums: $25,931.30 in 2010,
$22,250.00 in 2011, $27,300.00 in 2012, and $6,035.00 in 2013.
During his employment with defendant, plaintiff received several
warnings regarding his behavior. In 2013, a female employee complained to
human resources about plaintiff treating her in a hostile and aggressive manner,
and plaintiff received a verbal warning from defendant. Also in 2013, plaintiff
threatened defendant's interim chief financial officer, and received a written
warning, informing plaintiff his behavior was insubordinate and abusive, and
advising any further incidents would result in plaintiff's immediate termination.
According to plaintiff, defendant's executives made numerous age-related
comments directed to him. Plaintiff alleged one executive stated interns brought
"young blood" to the business, reinvigorated the company, had a better idea of
what is "cool," "really [knew] social media," and relate to defendant's audience
better than someone plaintiff's age. The same executive purportedly told
plaintiff the company needed to hire young people in the marketing department
because "old guys like us" did not know social media. Another executive
allegedly expressed older workers were lazy, stayed home, and did not work to
generate new clients. Plaintiff claimed the company's president stated: young
people are the future of the company; younger employees were the smartest
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people in the company; and the company wanted to hire younger people without
any experience because they were eager to make sales. Still another executive
was portrayed by plaintiff as exclaiming older sales people were not vigorously
pursuing sales because older people did not care about business prospecting and
were happy collecting paychecks until they retired.
Plaintiff was unable to remember the specific dates these comments were
made. He also could not remember if there were any witnesses present when
the comments were made, or if the comments were exact quotes.
At no time did plaintiff complain, either formally or informally, to anyone
at the company that he was the victim of discrimination based on his age.
Plaintiff continued working for defendant despite these comments.
Based on the money defendant paid Design Squared for marketing
services, as compared to the sum defendant paid for plaintiff's salary and
benefits, defendant concluded Design Squared could fulfill the company's
marketing needs at a significantly lower cost, thereby improving the company's
financial situation.1 Plaintiff was told his position was being eliminated to
1
In 2016, defendant saved $22,450 by eliminating plaintiff's job and retaining
Design Squared to perform work that had been done by plaintiff. This figure
did not include the savings defendant realized by not having to pay plaintiff's
benefits.
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reduce defendant's expenses. Plaintiff was sixty-one years old when he was
terminated. Defendant did not hire anyone to replace plaintiff. Defendant's
marketing function continued to be performed by Design Squared. Plaintiff's
other job responsibilities were absorbed by existing employees without any
additional salary increase for those employees.
After plaintiff's filed his discrimination complaint, the parties exchanged
discovery and scheduled depositions. The depositions, scheduled for the
summer of 2016, were adjourned based on the parties' participation in mediation.
The mediation, which occur in December 2016, was not successful.
In late December 2016, plaintiff requested new dates for the deposition of
defendant's witnesses. Defendant claimed its counsel asked plaintiff's attorney
to telephone him regarding discovery, but counsel did not respond. Plaintiff
contended defendant did not respond until mid-January 2017, and then
demanded plaintiff's deposition be scheduled within thirty days.
On January 28, 2017, the parties received a discovery end date notice,
advising discovery would expire on April 9, 2017. Between February and early
March 2017, defendant deposed plaintiff, plaintiff's wife, and plaintiff's treating
physician.
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On April 6, 2017, a few days before the original discovery end date,
plaintiff, with defendant's consent, obtained an automatic sixty-day extension of
the discovery period. The new discovery end date was June 8, 2017. On April
28, 2017, plaintiff attempted to schedule depositions of defendant's witnesses.
Defendant's counsel had scheduling conflicts on the proposed deposition dates,
and asked plaintiff's counsel to provide alternative dates. Plaintiff's counsel did
not respond.
On May 23, 2017, plaintiff submitted a letter requesting another sixty-day
extension of discovery. Defendant consented to plaintiff's request. However,
the court instructed plaintiff to file a formal motion for a discovery extension.
On May 26, 2017, plaintiff filed a motion to extend discovery through August
7, 2017.
Anticipating the discovery motion would be granted, plaintiff asked
defense counsel for dates to depose defendant's witnesses. Defendant provided
four dates in June and July. However, plaintiff's counsel was unavailable on the
designated dates.
While plaintiff's motion to extend discovery was pending, on June 19,
2017, the parties received a notice scheduling the matter for trial on September
5, 2017. Based on the trial notice, plaintiff scheduled the deposition of two
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defense witnesses for August 8 and 9, 2017. Defendant refused to produce the
witnesses on those dates because they were beyond the presumed date of the
discovery extension.
On June 23, 2017, the judge assigned to the discovery motion denied the
extension based on plaintiff's failure to provide a proposed form of order in
accordance with Rule 4:24-1(c). One week later, again with defendant's consent,
plaintiff filed another motion to extend the discovery. The renewed motion
included a proposed form of order, stating all depositions would be completed
by August 15, 2017.
The same discovery motion judge, in an order dated July 27, 2017, denied
plaintiff's renewed discovery extension motion based on plaintiff's failure to
present "exceptional circumstances" because the matter had a scheduled trial
date. The order stated: "Parties may always engage in consensual discovery."
However, defendant declined to produce its witnesses for depositions after the
expiration of the discovery end date.
Plaintiff filed a motion for reconsideration of the July 27, 2017 order. 2
The judge denied the reconsideration motion. On the denial order, the judge
2
Plaintiff's notice of appeal and case information statement do not include the
July 27, 2017 order. However, the order denying plaintiff's motion for
reconsideration is addressed to the July 27, 2017 order.
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wrote: "The parties had the opportunity to take discovery that was necessary
[and] if their adversaries were not cooperating, they had the opportunity to
engage in motion practice to compel or dismiss. The parties failed to do either
[and] exceptional circumstances have not been demonstrated."
Prior to the disposition of plaintiff's reconsideration motion, defendant
filed a motion for summary judgment. The summary judgment motion was
argued before a different judge. On September 18, 2017, the judge granted
defendant's motion. The judge found plaintiff was unable to prove a prima facie
case of discrimination because defendant did not hire a younger person to
perform plaintiff's job duties. The judge determined:
defendant has presented uncontroverted evidence that
[p]laintiff's core responsibilities as Vice President of
Marketing were outsourced to Design Squared, a third
party agency originally retained by [p]laintiff. In so
doing, the fees [d]efendant paid to Design Squared
were less than the salary and benefits it paid to
[p]laintiff. The menial task of inputting data into
salesforce.com was assumed by a marketing assistant.
Finally, what little responsibility [p]laintiff had for
sustainability was assumed by the compliance
manager[.]3
3
Although the compliance manager was younger than plaintiff, she did not
replace him. In addition, plaintiff conceded his sustainability duties were only
fifteen percent of his overall job responsibilities, and the compliance manager
absorbed those responsibilities as part of her own job duties for defenda nt.
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Even though the judge concluded plaintiff failed to demonstrate a prima
facie case of age discrimination, the judge reviewed plaintiff's claims under the
McDonnell Douglas 4 burden shifting framework. Assuming plaintiff had met
his burden on his age discrimination claim, the judge found defendant provided
a legitimate, non-discriminatory reason for its decision to terminate plaintiff
based on the significant cost-saving to the company resulting from the
elimination of plaintiff's job. The judge determined defendant saved
approximately $22,000 the year after eliminating plaintiff's job and outsourcing
work to Design Squared. As for plaintiff's job responsibilities related to
sustainability and salesforce.com, the judge concluded other employees , who
were paid less than plaintiff, absorbed those duties without additional
compensation, resulting in a further cost-savings to defendant.
Thus, the burden of production shifted and plaintiff was required to show
the reasons proffered by defendant in support of termination were pre-textual.
However, the judge rejected plaintiff's pretext evidence. However, the judge
found plaintiff could not "even articulate" comments to support he was fired
because of his age. Nor could plaintiff provide "precise quotes, context,
4
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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approximate dates, other witnesses, or in some cases, to even identify the
individual who allegedly made the comment." In addition, the judge determined
plaintiff was unable "to present any facts demonstrating that [d]efendant
engaged in a pattern of targeting older workers for termination." The judge
found:
Looking at the total record, the evidence shows
[d]efendant treated [p]laintiff far more favorably than
it was required to do. Defendant provided [p]laintiff
with copies of its policies regarding discrimination and
harassment. Defendant treated [p]laintiff fairly and
generously throughout his tenure with the company.
Defendant continued to employ [p]laintiff despite
serious misconduct. Plaintiff never raised the issue of
discrimination or hostile work environment at any time
during his employment with [d]efendant.
In reviewing plaintiff's hostile work environment claim, the judge opined
"[n]ot even the most generous reading of [p]laintiff's allegations supports the
conclusion that a reasonable person could view the alleged comments as
'threatening or humiliating' statements likely to 'unreasonably interfere with an
employee's work performance.'" The judge determined such a claim was
directly contradicted by "the support and generosity the [d]efendant repeatedly
showed [plaintiff]." In granting defendant's motion, the judge noted "there may
be some factual disputes present in the record, [but the disputes do] not rise to
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the level of being sufficient to defeat summary judgment. This is so even
assuming the veracity of plaintiff's alleged facts."
On appeal, plaintiff raises three arguments: (1) the court erred in refusing
to extend discovery to permit plaintiff to depose key witnesses; (2) the court
erred in denying reconsideration on the requested discovery extension; and (3)
the court erred in granting summary judgment in favor of defendant , dismissing
his age discrimination and hostile work environment claims.
We first examine plaintiff's arguments related to the judge's denial of the
motions to extend discovery. We "apply an abuse of discretion standard to
decisions made by . . . trial courts relating to matters of discovery." Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (citing Bender v.
Adelson, 187 N.J. 411, 428 (2006)). "As it relates to extensions of time for
discovery, appellate courts, . . . have likewise generally applied a deferential
standard in reviewing the decisions of trial courts." Ibid. Ordinarily, "we
decline to interfere with discretionary rulings involving discovery unless it
appear that an injustice has been done." Cunningham v. Rummel, 223 N.J.
Super. 15, 19 (App. Div. 1988).
Rule 4:24-1(c) allows for one sixty-day extension of discovery by consent
of the parties. The discovery extension rule requires:
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[t]he movant [ ] append to such motion copies of all
previous orders granting or denying an extension of
discovery or a certification stating that there are
none . . . . Any proposed form of extension order shall
describe the discovery to be completed, set forth
proposed dates for completion, and state whether the
adverse parties consent.
[Rule 4:24-1(c).]
The discovery motion judge denied plaintiff's first motion to extend discovery
because plaintiff failed to provide a proposed form of order setting forth the
discovery to be completed, with a deadline for each requested discovery item,
and failed to state the adverse party consented to the extension.
Plaintiff argues the judge erred in denying the first motion to extend
discovery because he demonstrated "good cause" for the additional sixty-day
extension of discovery. However, the judge's denial of plaintiff's first motion to
extend discovery was based on plaintiff's failure to comply with Rule 4:24-1(c).
Plaintiff admittedly failed to comply with the requirements of the Court Rule
governing extensions of the discovery. See R. 4:24-1(c); see also Pressler &
Verniero, N.J. Court Rules, cmt. 3 on R. 4:24-1(c) (2019) ("This paragraph
mandates that any proposed form of order extending discovery must describe
the discovery to be completed as well as indicate proposed dates for completion
and whether adverse parties have consented.").
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The judge denied plaintiff's second motion to extend discovery, finding
plaintiff failed to demonstrate exceptional circumstances. Plaintiff's second
motion to extend discovery was also governed by Rule 4:24-1(c), which
provides that "[n]o extension of the discovery period may be permitted after
arbitration or trial date is fixed, unless exceptional circumstances are shown."
To demonstrate exceptional circumstances, we generally require the
attorney to show she or he has diligently pursued the information sought during
the discovery period but had been frustrated from obtaining the discovery by
circumstances largely beyond counsel's control. See Bender, 187 N.J. at 429.
Specifically, the moving party must show: (1) why discovery was incomplete
and the diligence in pursuing discovery; (2) the additional discovery is essential;
(3) an explanation for why an extension was not sought within the original
discovery period; and (4) the circumstances were beyond the party's and
counsel's control. Garden Howe Urban Renewal Assocs., LLC v. HACBM
Architects Engineer Planners, LLC, 439 N.J. Super. 446, 460 (App. Div. 2015)
(internal quotation marks and citations omitted).
At the time plaintiff filed the second motion to extend discovery, a trial
date had been set, elevating the requisite showing to obtain a discovery
extension from establishing "good cause" to demonstrating "exceptional
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circumstances." The judge denied plaintiff's second motion, finding,
"Exceptional circumstances not demonstrated why after 510 days of discovery
on this track III case discovery is incomplete. Parties may always engage in
consensual discovery."
Plaintiff failed to demonstrate exceptional circumstances justifying
plaintiff's second motion for a discovery extension. Plaintiff did not
demonstrate diligence in pursuing discovery. Nor did plaintiff explain how the
circumstances necessitating a discovery extension were beyond the counsel's
control. Plaintiff could have filed a motion to compel the depositions of
defendant's witnesses but did not do so. Thus, the judge's denial of plaintiff's
second motion for failure to demonstrate exceptional circumstances was not an
abuse of discretion.
Turning to plaintiff's argument that the judge erred in denying his motion
for reconsideration, we review a trial court's determination on such a motion for
abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996). Rule 4:49-2 provides that a party may file a motion for reconsideration
seeking to alter or amend a judgment or order, as long as the motion "state[s]
with specificity the basis on which it is made, including a statement of the
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matters or controlling decisions which counsel believes the court has overlooked
or as to which it has erred."
"A litigant should not seek reconsideration merely because of
dissatisfaction with a decision of the [c]ourt." D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990)).
Reconsideration should be utilized only for those cases
which fall within that narrow corridor in which either
1) the [c]ourt has expressed its decision based upon a
palpably incorrect or irrational basis, or 2) it is obvious
that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent
evidence.
[ Ibid.]
The judge denied plaintiff's reconsideration motion, explaining "[t]he
parties had the opportunity to take the discovery that was necessary [and] if [the]
adversary[y] [was] not cooperating [plaintiff] had the opportunity to engage in
motion practice to compel or dismiss. The [plaintiff] failed to do either and
exceptional circumstances have not been demonstrated."
Plaintiff argues his motion for reconsideration presented new information
regarding defendant's conduct after the court's denial of the first two discovery
motions. Specifically, plaintiff contends defendant refused to produce witnesses
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for depositions. Plaintiff claims these newly asserted facts constituted
exceptional circumstances.
We are satisfied the judge's denial of plaintiff's reconsideration motion
was appropriate under the circumstances. Plaintiff never raised defendant's
refusal to produce witnesses for depositions as a basis for granting the second
motion to extend discovery. Moreover, the information was not newly
discovered. Plaintiff's counsel was aware of defense counsel's position
regarding producing defendant's witnesses absent a court order extending
discovery. Nothing precluded plaintiff's counsel from filing a motion to compel
the depositions of defendant's witnesses or, alternatively, a motion to suppress
defendant's answer for failure to provide discovery. Thus, the judge's denial of
plaintiff's reconsideration motion was proper.
We next consider plaintiff's argument that the court erred in granting
summary judgment, dismissing his age discrimination and hostile work
environment claims. We review a grant of summary judgment de novo, applying
the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204
N.J. 320, 330 (2010). Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
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challenged and that the moving party is entitled to a judgment or order as a
matter of law." R. 4:46-2(c). The court considers the evidence "in the light
most favorable to the non-moving party" and determines whether it would be
"sufficient to permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995). In satisfying this burden, the non-moving party may not rest
upon mere allegations or denials in the pleadings, but must produce sufficient
evidence to support a verdict in the non-moving party's favor. R. 4:46-5(a);
Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super. 517, 523 (App. Div. 2004).
In opposing summary judgment based on incomplete discovery, a plaintiff
must "demonstrate with some degree of particularity the likelihood that further
discovery will supply the missing elements of the cause of action." Wellington
v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003) (quoting
Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977)). The non-moving
party is required to present competent evidence, raising genuinely disputed
issues of material fact. Merchs. Express Money Order Co. v. Sun Nat'l Bank,
374 N.J. Super. 556, 563 (App. Div. 2005).
Here, plaintiff failed to proffer facts sufficient to infer discriminatory
intent on the part of defendant. The alleged comments made by defendant's
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executives, even if true, do not refer to plaintiff's age to support his age
discrimination claim. In opposing defendant's motion, plaintiff never identified
any discovery deficiencies warranting denial of summary judgment. Therefore,
even assuming for argument's sake that the trial court erred in denying a
discovery extension – which we have concluded it did not – plaintiff failed to
articulate additional discovery that would bolster his claims or supply the
missing elements of his cause of action.
To prevail on a claim under the New Jersey Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -49, New Jersey courts have adopted the burden-
shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Id. at 14. Under that analysis, the plaintiff must establish a prima
facie case of discrimination. Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14
(2002). The court required plaintiff to show that he or she:
1) belongs to a protected class; (2) applied for or held a
position for which he or she was objectively qualified;
(3) was not hired or was terminated from that position;
and that (4) the employer sought to, or did fill the
position with a similarly-qualified person. The
establishment of a prima facie case gives rise to a
presumption of discrimination.
[Ibid.]
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The judge focused on the fourth prong for proving a prima facie case of
discrimination. The judge explained "the fourth element requires a showing that
the [p]laintiff was replaced with 'a candidate sufficiently younger to permit an
inference of age discrimination,'" citing Nini v. Mercer County Community
College, 406 N.J. Super. 547, 554 (App. Div. 2009).
Plaintiff claims he was not required to show he was replaced by a younger
individual, and he need only demonstrate "circumstances giving rise to an
inference of discrimination" consistent with Williams v. Pemberton Township
Public Schools, 323 N.J. Super. 490 (App. Div. 1999). However, that case is
inapposite as the plaintiff's job in Williams continued to exist after the plaintiff
was terminated. Id. at 497, 502.
This case is more analogous to Young v. Hobart West Group, 385 N.J.
Super. 448, 455-57 (2005). There, the plaintiff was terminated from her position
as a cost reduction measure. Ibid. The job position was eliminated, no one was
hired to replace the plaintiff, and the plaintiff's former duties were assumed by
her supervisor and branch managers. Id. at 460.
In that case, we found the plaintiff could not show "either that she was
replaced by someone sufficiently younger, or that 'age in any significant way
made a difference' in the treatment she was accorded by her employer." Ibid.A-1016-17T1
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We concluded the plaintiff could not establish a prima facie case of age
discrimination under those circumstances. Ibid.Reviewing the facts in this case in the light most favorable to plaintiff, he
failed to meet his burden of demonstrating a prima facie case of age
discrimination by showing he was replaced with a younger employee. It is
undisputed that defendant eliminated plaintiff's position and did not hire, or seek
to hire, a replacement. To the contrary, plaintiff's primary job function was
outsourced to Design Squared at a substantial cost saving to defendant, and
plaintiff's remaining duties were assumed by existing employees at the
company.
For the sake of completeness, we also review the judge's determination
that defendant articulated a legitimate, non-discriminatory reason for
terminating plaintiff's employment and plaintiff failed to demonstrate
defendant's reasons for terminating his job were pretextual. The unrefuted
evidence demonstrates defendant hired Designed Squared to provide marketing
services at a cost less than the amount defendant paid to plaintiff annually.
Plaintiff conceded his job responsibilities related to sustainability and
salesforce.com were assumed by other employees, who received no additional
compensation after absorbing these duties. The evidence supported defendant's
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desire to eliminate redundant services by using an outside company at
significant cost-savings.
The judge evaluated the facts, assumed the veracity of plaintiff's
assertions of discriminatory comments, and viewed the record in a light most
favorable to plaintiff. On this record, the judge concluded plaintiff "failed to
provide any evidence by which a reasonable jury can conclude that [d]efendant's
reasons for eliminating his position were a pretext for age discrimination." We
discern no error in the judge's decision, determining there was no genuine issue
of material fact for the jury to resolve and finding plaintiff failed to present a
prima facie case of age discrimination.
We next consider plaintiff's argument that the judge erred in dismissing
his hostile work environment claim. To establish such a claim under LAD,
plaintiffs must satisfy each part of a four-part test.
Specifically, they must show that the complained-of
conduct (1) would not have occurred but for the
employee's protected status, and was (2) severe or
pervasive enough to make a (3) reasonable person
believe that (4) the conditions of employment have
been altered and that the working environment is
hostile or abusive.
[Shepherd v. Hunterdon Developmental Ctr., 174 N.J.
1, 24 (2002), (citing Lehmann v. Toys 'R' Us, Inc., 132
N.J. 587, 603-04 (1993)).]
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A court must review a hostile work environment claim in light of the
totality of circumstances. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super.
145, 178, 196 (App. Div. 2005). The inquiry is whether a reasonable person in
plaintiff's position would consider the alleged discriminatory conduct "to be
sufficiently severe or pervasive to alter the conditions of employment and create
an intimidating, hostile or offensive working environment." Ibid. (quoting
Heitzman v. Monmouth Cty., 321 N.J. Super. 133, 147 (App. Div. 1999)). The
test is strictly objective; whether a reasonable person in the plaintiff's position
would consider the work environment hostile. Godfrey v. Princeton Theological
Seminary, 196 N.J. 178 (2008).
Here, the judge concluded, "[n]ot even the most generous reading of
[p]laintiff's allegations supports the conclusion that a reasonable person could
view the alleged comments as 'threatening or humiliating' statements likely to
'unreasonably interfere' with an employee's work performance." The judge
determined, "[n]o reasonable fact finder evaluating the comments [p]laintiff has
alleged could conclude the evidence demonstrates severe or pervasive conduct
sufficient to alter [p]laintiff's working conditions and create a hostile or abusive
environment, particularly in view of the support and generosity the [d]efendant
repeatedly showed him."
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Plaintiff claims the judge erred in determining the age-related comments
made by defendant's executives were not severe or pervasive. Plaintiff contends
the judge improperly weighed the credibility of plaintiff's evidence related to
his hostile work environment claim. Even taking plaintiff's allegations as true,
his claim fails to support an age-based hostile work environment claim under
the LAD. A plain reading of the comments allegedly attributable to defendant's
executives reveals the statements were not severe, physically threatening, or
humiliating to "unreasonably interfere" with plaintiff's work performance. Nor
did plaintiff complain the alleged comments by defendant's executives were
affecting his work performance.
Having reviewed the record, we are satisfied the summary judgment
motion judge undertook a complete review of the record and determined that
plaintiff failed to raise a genuine issue of material fact. "[E]ven assuming the
veracity of plaintiff's alleged facts," the judge concluded no rational factfinder
could find in favor of plaintiff on his claims.
Affirmed.
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