Kedar Telang v. Merck Sharpe & Dohme Corp. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2761-21
KEDAR TELANG,
Plaintiff-Appellant,
v.
MERCK SHARPE & DOHME
CORP.,
Defendant-Respondent.
___________________________
Submitted January 18, 2024 – Decided February 13, 2024
Before Judges Currier and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-2347-18.
Kedar Telang, appellant pro se (Raymond Joseph
Siegler, on the brief). 1
Tucker Law Group LLC, attorneys for the respondent
(Leslie Miller Greenspan and Dimitrios Mavroudis, on
the brief).
1
Plaintiff submitted a pro se supplemental brief after a substitution of attorney
was filed designating him as a self-represented litigant.
PER CURIAM
Plaintiff Kedar Telang appeals the March 29, 2022 order granting
summary judgment to his prior employer, defendant Merck Sharp 2 & Dohme
LLC (Merck), dismissing his unlawful retaliation claim under the New Jersey
Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50. Because the trial
court did not err in finding plaintiff failed to establish a prima facie case or that
Merck's reasons for actions taken before, during, and after plaintiff's
employment were pretext, we affirm.
Plaintiff filed a three-count amended complaint alleging unlawful
retaliation in violation of the LAD (count one), violation of the New Jersey
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8 (count
two), and violation of the New Jersey Fair Credit Reporting Act (NJFCRA),
N.J.S.A. 56:11-28 to -43 (count three). On September 28, 2018, the trial court
dismissed the CEPA claim on Merck's motion. On January 29, 2021, the trial
court denied Merck's motion for summary judgment as to the LAD and NJFCRA
claims. On March 29, 2022, the trial court granted summary judgment as to the
LAD and NJFCRA claims on Merck's motion for reconsideration.
2
Defendant is named in this litigation as Merck Sharpe & Dohme Corp. We
use the name of the corporation set forth by defendant.
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Plaintiff initially appealed the trial court orders dismissing all three counts
of the amended complaint. However, plaintiff later withdrew the appeal of the
orders dismissing counts two and three. Accordingly, this appeal is narrowed
to only our review of the trial court's order granting summary judgment as to the
LAD claim in count one. 3
Although we review a motion for reconsideration for abuse of discretion,
interlocutory orders are subject to review at any point prior to final judgment in
the interest of justice. R. 4:42-2(b); see Lombardi v. Masso, 207 N.J. 517, 535-
536 (2011). Since the order denying Merck's motion for summary judgment as
to plaintiff's LAD and NJFCRA claims was interlocutory, the trial court did not
err in exercising its discretion in the interest of justice to reconsider whether
summary judgment was appropriately denied.
We review a trial court's grant or denial of a motion for summary judgment
de novo, applying the same standard applied by the trial court. Samolyk v.
Berthe, 251 N.J. 73, 78 (2022). As a result, we are tasked with 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
3
The trial court's written decision references the LAD claim as count three.
The substance of the trial court's decision and the briefing establishes the LAD
claim was count one of plaintiff's amended complaint.
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party.'" C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 305 (2023) (quoting
Samolyk, 251 N.J. at 78). We view the facts in the motion record under this
lens in the light most favorable to plaintiff for purposes of determining whether
the trial court improvidently granted summary judgment as to plaintiff's LAD
claim.
Plaintiff, who is a United States citizen of Indian origin, was employed by
non-party Covanta as a finance manager from November 2011 through March
2016. Plaintiff alleges Covanta discriminated against him based on his national
origin. Plaintiff's complaints of discrimination to Covanta's human resources
(HR) team were predicated on excluding him from key meetings, unfairly
denying his request for a promotion, and placing him on a sixty-day performance
improvement plan. Plaintiff was subsequently terminated from his position at
Covanta, which he attributed to retaliation for filing complaints with HR.
After plaintiff was terminated by Covanta, he interviewed for two
positions with Merck: associate director and senior specialist. Two of Merck's
directors, John Kennedy and Matt Butler, interviewed plaintiff for the associate
director position. According to plaintiff, during the interview, Butler made an
inappropriate comment regarding plaintiff's alleged "greed" and Kennedy
"unfairly" conducted the technical analysis of his skills. On May 11, 2016,
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plaintiff received an email stating Merck hired another candidate who better fit
the requirements of the associate director position.
In August 2016, plaintiff was interviewed for the senior specialist position
by Merck's hiring director, Elaine Gin, and executive director, Diana Gengos.
According to plaintiff, Gengos told him during the interview his experience was
"much more suited" for the associate director position. Although Merck told
plaintiff the associate director position was going to be filled by another
candidate, Gengos stated during the interview the position was still vacant.
Plaintiff subsequently learned that companies he had interviewed with
were told plaintiff had pending litigation against Covanta when attempting to
verify his employment history. Plaintiff wrote a letter to Covanta asking it to
investigate this alleged misstatement and clarifying that there was no pending
litigation between him and Covanta. Plaintiff shared this letter with Merck's job
recruiter, Kim Ostroski, who told him Merck's decision regarding the senior
specialist position was not yet final.
The morning after plaintiff sent Ostroski a copy of the letter to Covanta,
she called plaintiff to thank him for clarifying the issue and offered him the
senior specialist position at Merck. Plaintiff assumed the timing of the offer
evidenced that Merck only agreed to hire him after learning he had not sued his
prior employer for discrimination. Plaintiff requested the associate director
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position instead, but Ostroski stated that his qualifications and experience level
were "commensurate" with the senior specialist role. Plaintiff felt Ostroski's
opinion conflicted with Gengos's statements to him during his interview for the
senior specialist position.
On September 20, 2016, plaintiff accepted the Merck senior specialist
position. Merck's prior employment verification process was completed without
any issue regarding his Covanta employment being brought to plaintiff's
attention. When plaintiff started working on October 24, 2016, it became
immediately apparent to him that he was overqualified for the senior specialist
position, which he viewed as an entry-level position below the associate director
position he interviewed for and subordinate to the position he held at Covanta.
At the first team meeting held after plaintiff was hired, Kennedy warned
the group collectively that gossiping was against company policy. Plaintiff
construed this warning, together with the totality of the circumstances, as an
indication that co-workers were aware of his alleged claim against Covanta and
had been gossiping about it. There is no evidence in the motion record of any
specific statements made by co-workers discussing any claim plaintiff filed
against Covanta.
Plaintiff contends that immediately upon commencing employment with
Merck, he was subjected to "a hostile environment" through "body language,"
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"hurtful comments," and "adverse actions." To this end, plaintiff contends
senior members of Merck ended conversations when he approached and avoided
being alone with him at Merck's holiday lunch. Plaintiff thought all of his
superiors and co-workers were uncomfortable around him. He felt his manager,
Raymond Hawryluk, acted anxiously in his presence and avoided making eye
contact with him. Plaintiff states Hawryluk suggested more than once that he
should move to another group within the company.
Plaintiff alleges some of his colleagues made the following hurtful
comments which referenced a mistaken understanding he had received a large
sum of money by suing Covanta and, therefore, he did not need to work hard at
Merck:
"Not everyone is a millionaire around here, Kedar.
Some of us have to work."
"If I were you, I would be chilling too."
"Where are you going on vacation? London? Paris? I
bet you can go anywhere you like."
Plaintiff claims Merck attempted to terminate his employment several
times. Plaintiff describes one instance when he was slated to be laid off as part
of alleged budget cuts while his team was simultaneously planning to hire
someone for a more senior position. On another occasion, plaintiff's team
attempted to set him up for termination by assigning him an important task the
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evening before the project deadline. When he finished the task in a timely
manner, his colleagues were visibly upset.
In November 2016, plaintiff asked to meet confidentially with Gengos and
relayed to her that Covanta had provided unfavorable references mentioning
litigation plaintiff filed against it in the summer of 2016. During this meeting,
plaintiff asked Gengos if Merck had received this incorrect information in
connection with Merck's employment verification process. Gengos replied that
she was not aware of any such evidence but offered to communicate with HR
about the issue and agreed to be discreet about her conversation with plaintiff.
Plaintiff further requested that Gengos provide him with any such evidence she
might receive as he contemplated possible future litigation against Covanta.
Plaintiff relayed the same information and request to Hawryluk during a
conversation on January 17, 2017. According to plaintiff, Hawryluk stated he
was aware that an issue regarding plaintiff's prior employment had arisen during
Merck's employment verification process, but he denied knowing any specifics.
Plaintiff interpreted Hawryluk's comment to mean that, as of January 2017,
Merck was aware plaintiff had previously threatened litigation against Covanta
and was again contemplating a lawsuit against his prior employer.
On January 23, 2017, Gengos emailed plaintiff after communicating with
HR and advised him Merck had no information regarding any issues arising
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during plaintiff's employment verification process. Plaintiff asserts this
message contradicted what Hawryluk told him.
Plaintiff observed several co-workers visit the offices of Kennedy and
Gengos wishing them good luck and asking them to stay in touch. Plaintiff took
this to mean that Kennedy and Gengos were aware they were being imminently
terminated in order to prevent Merck's HR team from speaking with them during
an internal investigation. Plaintiff assumed this was because they had
knowledge of misinformation provided by Covanta in connection with Merck's
employment verification of him. Kennedy and Gengos were not terminated from
Merck.
In February or March 2017, plaintiff heard Hawryluk speaking with Chris
Feudo, an attorney representing Covanta, but he did not hear the context or
specifics of the conversation. Nonetheless, plaintiff concluded that Covanta and
Merck were both using the same attorney to jointly retaliate against him "based
on his national origin and his threats of legal action to seek redress for Covanta's
and Merck's violations of his civil rights."
Plaintiff discovered that between December 2016 and March 11, 2017, he
received emails sent from his Merck email account to his personal account
containing statements such as: "Don't do it," "I am sad," "You are not the doer,
God is the doer," and "Yes, believe it or not I am talking to you." On March 13,
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2017, plaintiff reported the emails to Hawryluk who asked the information
technology (IT) team to investigate. The IT team was unable to determine an y
alternative source of the emails and closed the matter. Plaintiff felt the emails
were unlawful retaliation sent by someone else to damage his reputation.
On March 14, 2017, plaintiff filed a written complaint with Hawryluk
alleging retaliation and referencing the emails. When Hawryluk did not
respond, plaintiff sent the same complaint to Gengos the next day. Plaintiff
received no response from Gengos.
Plaintiff was scheduled to work remotely on March 16, 2017, but
discovered his access to Merck's computer network had been terminated .
Plaintiff reported the issue to Hawryluk and Gengos but did not receive an
immediate response. Hawryluk instead asked plaintiff to attend an in-person
meeting on March 17, 2017. Plaintiff feared he would be terminated at this
meeting, so he sent an email to Merck's senior management asking that his
position be given "whistleblower protection."
When plaintiff arrived for the meeting, he discovered his employee
identification no longer provided him with access to the work site. Upon
meeting with Merck representatives, Chris Nigro from HR and Edwin Rios from
the IT team, plaintiff informed them his network and site access had both been
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disrupted. Nigro advised this was done intentionally as a "precaution." Plaintiff
assumed this meant Merck considered him a security threat.
During the March 17, 2017 meeting, Nigro asked plaintiff questions
regarding the investigation into plaintiff's report of suspicious emails from his
account, requested the name of his attorney, and asked for a copy of the letter
he sent to Ostroski, which plaintiff advised he would provide. During the
meeting, plaintiff stated he received similar suspicious emails on January 17,
2017 and that his Merck-issued cell phone was also missing. Nigro then asked
plaintiff to see Merck's nurse due to concerns about his fitness for duty in light
of plaintiff's written statement as well as verbal responses during the meeting.
Merck's nurse asked plaintiff a series of questions including whether he
knew his name, the date, and the name of the current president. The nurse asked
if plaintiff ever thought about bringing weapons to work or hurting his
coworkers, which he denied. When asked if there was a source of stress in his
life, plaintiff advised the nurse about the Covanta issue but also asserted his
work performance was meeting expectations.
Nigro then instructed plaintiff to take his laptop home for the weekend
and drop it off with Merck's IT team on Monday to be reviewed in connection
with the investigation of the emails plaintiff received. Later that day, plaintiff
received an email from Nigro confirming his requests for documents and other
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information during the meeting and advising plaintiff he was on paid
administrative leave until further notice. Nigro also requested that plaintiff
refrain from contacting any of his co-workers because of the confidential nature
of the investigation Merck was undertaking as to the emails he received.
Instead of providing the documents and information requested by Merck,
on Saturday, March 18, 2017 plaintiff emailed Nigro stating "I have decided to
resign. I will return my laptop on Monday." Plaintiff sent another email to
Nigro on Sunday, March 19 stating:
Please confirm receipt of my email below and let me
know the next steps. The best way to reach me is via
email at my personal account (copied on this email).
I will drop off the laptop tomorrow. Please have your
forensic team look at it and confirm that there has been
no suspicious activity in any of my accounts since
Friday. I will need this confirmation before my
separation from Merck.
Regards,
Kedar
On Monday, March 20, Nigro sent a responding email confirming he was
"in receipt of [plaintiff's] resignation email and that Merck has accepted
[plaintiff's] resignation."
Later that day, plaintiff sent Nigro an email stating Nigro had
misunderstood and that plaintiff had decided to resign but he wanted to set a
potential resignation date after they met in person since he had "carryover
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vacation days" he wanted to use, and he needed the results of the email
investigation prior to the date of separation. Nigro responded: "We have set
your resignation effective for Friday March 24. I have confirmed with your
management that you will be paid out 3 vacation days (1 carryover and 2
accrued)." Nigro also confirmed that plaintiff would have the results of the IT
investigation prior to his separation date.
On March 21, 2017, plaintiff sent an email to Nigro at 10:03 p.m. advising
he reconsidered his decision and would like to continue his employment with
Merck. Plaintiff sent another email to Nigro the morning of March 22 at 6:59
a.m. advising his decision over the weekend to resign was impetuous and he
wanted to continue his employment after reflecting on the economic impact and
discussing the issue with his spouse. Plaintiff also offered to withdraw his
request for an investigation in exchange for being allowed to continue
employment with Merck.
Plaintiff sent yet another email to Nigro at 8:19 a.m. the morning of March
22, 2017, advising he would consider any other position at Merck's Kenilworth
location. At 10:34 a.m. plaintiff sent the email thread to Nigro's supervisor, Jane
Palaia, asking for help with what he couched as a "very urgent matter."
Receiving no response, plaintiff again emailed Nigro and Palaia stating he would
stop by the office in person on March 23, to discuss the resignation. Nigro
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replied via email that plaintiff was not to come to the office in person, as
previously discussed, unless directed by HR or security. Nigro's email stated he
would call plaintiff to discuss further.
As memorialized in several additional emails sent on March 22, 2017,
Nigro tried to call plaintiff numerous times at the phone number plaintiff
provided, but he did not answer. Plaintiff sent multiple emails to Nigro
questioning the directive that he not come to the work site. Nigro advised
plaintiff by email on the same date that Merck IT security concluded its
investigation into plaintiff's claim of suspicious emails being sent from his
Merck email account. According to IT, the emails were present in the "deleted"
folder of plaintiff's user account, there was no indication of any intrusion or
access to plaintiff's Merck email account and no other Merck account had access
to send email from plaintiff's account.
Nigro advised in the same email that Merck had elected not to accept
plaintiff's withdrawal of his resignation and had scheduled March 24, 2017 as
the separation date. Plaintiff sent a responding email on the same date stating
only: "Thank you for responding. I am sorry to hear that."
Plaintiff alleges Merck thereafter incorrectly informed potential future
employers that he was terminated. Further, he contends the terminology of
"PER" used on Merck's job verification report could be read to mean plaintiff
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was terminated for performance reasons and this is affecting his ability to obtain
another job in his field. Plaintiff is now working multiple jobs as a substitute
teacher, a paraprofessional, and as an economics expert with Study.com, while
also volunteering with a business mentoring organization.
Considering these facts, the trial court concluded on reconsideration that
plaintiff had not established a prima facie case of unlawful retaliation against
Merck under the LAD. In its March 29, 2022 written decision, the trial court
accepted plaintiff's facts as true for purposes of the motion and found plaintiff
had not shown he was engaged in LAD-protected activity that was known by
Merck. The trial court also found plaintiff did not present any evidence that
Merck's provided reasons for any employment action were pretextual.
Specifically, the court found that plaintiff did not show that his complaints were
improperly addressed or that Merck forced him to resign.
On appeal, plaintiff argues the court committed reversible error by finding
he did not demonstrate any LAD-prohibited retaliation. Plaintiff more
specifically asserts the trial court overlooked the following in making that
determination: 1) plaintiff filed an internal complaint of national origin
discrimination with Covanta of which Merck was aware at the time it rejected
his application for the associate director position; 2) plaintiff put Merck on
notice of his intention to file a lawsuit against Covanta; and 3) plaintiff filed an
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internal complaint with Merck alleging unlawful retaliation immediately prior
to its refusal to allow him to rescind his resignation. Plaintiff further asserts the
trial court erred in finding there was no evidence Merck's defenses were
pretextual excuses designed to obscure impermissible discrimination.
Merck submits on appeal that plaintiff cannot prevail on his unlawful
retaliation claim under the LAD since he resigned voluntarily, and it was not
unlawful for the employer to refuse to accept plaintiff's withdrawal of his
resignation. Merck further asserts plaintiff's unlawful retaliation claim is not
supported by any evidence and that its actions with respect to plaintiff were
legitimate and not pretext for unlawful discrimination.
We broadly construe and apply the protections of the LAD to allow for
the greatest available antidiscrimination impact. Richter v. Oakland Bd. of
Educ., 246 N.J. 507, 537 (2021). "The LAD's worthy purpose is no less than
eradication of '"the cancer of discrimination" in our society.'" Ibid. (quoting
Smith v. Millville Rescue Squad, 225 N.J. 373, 390 (2016) (quoting Nini v.
Mercer Cnty. Cmty. Coll., 202 N.J. 98, 115 (2010))). In a discrimination claim
under the LAD, it is the plaintiff who bears the burden to establish a prima facie
case. Victor v. State, 203 N.J. 383, 408 (2010). To succeed in proving a prima
facie case, the evidentiary burden is "rather modest." Zive v. Stanley Roberts,
Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91
16 A-2761-21
F.3d 497, 508 (3d Cir. 1996)). It is sufficient that the plaintiff is able to
"demonstrate to the court that plaintiff's factual scenario is compatible with
discriminatory intent – i.e., that discrimination could be a reason for the
employer's action." Ibid. (emphasis omitted) (quoting Marzano, 91 F.3d at 508).
[T]he prima facie elements of a retaliation claim under
the LAD requires plaintiff to demonstrate that: (1)
plaintiff was in a protected class; (2) plaintiff engaged
in protected activity known to the employer; (3)
plaintiff was thereafter subjected to an adverse
employment consequence; and (4) that there is a causal
link between the protected activity and the adverse
employment consequence.
[Victor, 203 N.J. at 409.]
To guide the liberal application of the LAD, New Jersey has adopted the
"procedural burden-shifting methodology" set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). 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.
[Meade v. Twp. of Livingston, 249 N.J. 310, 328 (2021)
(quoting Henry v. N.J. Dep't of Hum. Servs., 204 N.J.
320, 331 (2010)).]
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Given that claims under the LAD are to be interpreted broadly and the
standard for summary judgment requires facts to be viewed in the light most
favorable to the non-moving party, the trial court's task was not to determine the
strength of the case, but rather if plaintiff's "allegations, if true, can establish
that [defendant] violated the LAD." Beneduci v. Graham Curtin, P.A., 476 N.J.
Super. 73, 82 (App. Div. 2023). "Rather than considering each incident in
isolation, courts must consider the cumulative effect of the various incidents,
bearing in mind 'that each successive episode has its predecessors, that the
impact of the separate incidents may accumulate . . . .'" Lehmann v. Toys 'R'
Us, Inc., 132 N.J. 587, 607 (1993) (quoting Burns v. McGregor Elec. Indus. Inc.,
955 F.2d 559, 564 (8th Cir. 1992)).
"[A] person engages in protected activity under the LAD when that person
opposes any practice rendered unlawful under the LAD." Young v. Hobart W.
Grp., 385 N.J. Super. 448, 466 (App. Div. 2005); see also Jamison v. Rockaway
Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). Discrimination
based upon national origin is specifically prohibited under the LAD. N.J.S.A.
10:5-12. Plaintiff's assertion that he is of Indian origin was not disputed in the
motion record.
Plaintiff contends Merck retaliated against him because it was aware he
had threatened to institute or had filed a claim against his former employer for
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discrimination. We will accept for the purposes of this appeal, as it appears the
trial court did, that such actions could constitute protected activity. However, a
prima facie case of unlawful retaliation requires proof establishing the
prospective or successor employer had knowledge of the discrimination
complaint against the prior employer.
We do not disturb the trial court's finding, based upon the undisputed facts
in the motion record, that plaintiff has not proffered any evidence establishing
Merck representatives knew plaintiff's threatened litigation or claim against his
prior employer, Covanta, was predicated on national origin discrimination.
Merck did not conduct a background check or prior employment verification
until after plaintiff was offered and accepted the senior specialist position.
There is no evidence that Merck knew plaintiff was proceeding with a
discrimination claim against Covanta before hiring him. The only information
Covanta provided Merck during the prior employment verification process was
that plaintiff was involuntarily terminated by Covanta for poor performance.
Nonetheless, Merck did not seek to withdraw plaintiff's offer of employment
after receiving this negative information.
Nor is there evidence Merck became aware of a threatened or actual claim
against Covanta based upon national origin discrimination during the course of
plaintiff's employment. Plaintiff asserted during his deposition he was the one
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who told senior Merck executives that he was going to sue Covanta during
conversations with Gengos in November 2016 and Hawryluk in January 2017.
However, even assuming all of plaintiff's factual assertions are true, there is no
evidence plaintiff ever relayed to Merck that his claim against Covanta was
based upon discrimination. Instead, the motion record establishes plaintiff
advised Merck generically he would be suing Covanta for providing unfavorable
references to prospective employers.
We reject plaintiff's non-specific and unsupported assertion that an
attorney representing both Merck and Covanta shared information about
plaintiff's claim against Covanta with Hawryluk, his supervisor at Merck.
Generalized comments regarding plaintiff's alleged wealth by his co-workers
and his perception that others were awkward around him do not establish Merck
was aware that he had complained to Covanta of national origin discrimination.
Nor is the remainder of the behavior alleged by plaintiff to have occurred
before and during plaintiff's employment with Merck otherwise actionable under
the LAD. See Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 25-26
(2002) (explaining that rude or uncivil behavior and "simple teasing, offhand"
comments alone do not create a hostile work environment or constitute a claim
for discrimination). The motion record is also devoid of any evidence Merck
was aware of plaintiff's threatened or actual discrimination claim against
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Covanta when accepting his resignation or rejecting plaintiff's attempt to rescind
it.
We also reject any contention that there is prima facie evidence of adverse
employment action in the record. Plaintiff does not argue constructive
discharge. Nor is there any other adverse employment action by way of loss of
salary alleged. Plaintiff's argument that Merck took adverse employment action
against him by terminating his employment in retaliation for engaging in
protected activity under the LAD is belied by plaintiff's voluntary resignation.
Plaintiff asserts he did not tender his resignation, but instead argues he
intended to resign at some future point. Plaintiff's contention is contradicted by
the language of his own resignation and subsequent emails confirming the
resignation, followed by an attempt to rescind, after reflection on the economic
and marital impact of his decision.
We agree the uncontroverted facts in the record establish Merck had
legitimate, non-discriminatory reasons for its decisions and plaintiff offered no
evidence of pretext. Under the burden-shifting methodology set forth in
McDonnell-Douglas, plaintiff must establish Merck's legitimate reasons for its
actions were merely pretextual excuses to shroud underlying discrimination.
411 U.S. at 802-04. Plaintiff has not met this burden and summary judgment
was appropriately granted.
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"To prove pretext . . . a plaintiff must do more than simply show that the
employer's reason was false; he or she must also demonstrate that the employer
was motivated by discriminatory intent." Viscik v. Fowler Equip. Co., 173 N.J.
1, 14 (2002). Plaintiff argues in generalities that the trial court improperly found
he failed to raise an issue as to pretext by asserting: 1) Merck's "proffered
reasons for refusing to accept [plaintiff]'s request to rescind his resignation were
inconsistent, implausible, and not worthy of credence"; 2) the "temporal
proximity" between the "protected activity and the adverse employment action"
demonstrates a nexus; and 3) plaintiff was "subjected to significant ongoing
antagonism" due to his protected activities. However, plaintiff has failed to
point to any evidence in the motion record to support these broad assertions.
Nor has plaintiff established any Merck representative took any
employment action against him based on a discriminatory intent. The motion
record establishes Merck used an internal process to determine plaintiff was
appropriate for the senior specialist position, rather than the associate director
job which was based in part on his performance during the interview.
Plaintiff's unlawful termination claim is predicated in part on Merck's
refusal to continue plaintiff's employment despite the post-acceptance
withdrawal of his resignation. Plaintiff does not supply any statute or case law
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demonstrating a private employer is required to reinstate at-will employment
after an employee attempts to rescind their resignation.
An employer who accepts an unequivocal notice of
resignation from an employee is entitled to rely upon it,
to the extent of preparing in one manner or another for
the employee's absence, unless, of course, the employer
chooses to return to status quo by rehiring the
employee, or accepting a retraction of the notice.
[Nicholas v. Bd. of Rev., Dep't of Labor & Indus., 171
N.J. Super. 36, 38 (App. Div. 1979) (quoting Guy
Gannett Pub. Co. v. Me. Emp. Sec. Comm'n, 317 A.2d
183 (Me. 1974)).]
"Absent a contract providing otherwise, employment in New Jersey is at -
will." Lapidoth v. Telcordia Techs., Inc., 420 N.J. Super. 411, 420-21 (App.
Div. 2011). An employer of an at-will employee has the unfettered right to
continue or cease employment for any reason or no reason at all, so long as the
actions do not violate the LAD. Id. at 421. Likewise, though an employer of an
at-will employee does not have to accept the rescission or retraction of a
resignation, the refusal cannot be predicated on a discriminatory intent. See
Prager v. Joyce Honda, Inc., 447 N.J. Super. 124 (App. Div. 2016).
Thus, as an at-will employee, plaintiff had the right to resign and Merck
had the corollary right to accept plaintiff's resignation and refuse to allow him
to reinstate his own employment by withdrawing the resignation, subject to the
LAD. Bernard v. IMI Sys., Inc., 131 N.J. 91, 105-06 (1993). We find no
23 A-2761-21
evidence in the record that Merck's refusal to accept plaintiff's withdrawal of his
resignation was improperly motivated by a discriminatory intent.
The undisputed facts in the record establish that plaintiff's statements in a
memorandum and the subsequent interview on March 17, 2017, constituted
legitimate, non-discriminatory reasons for requiring a medical evaluation to
determine plaintiff's fitness for continued employment at Merck and to place
him on paid administrative leave. Merck's assertion that it was investigating all
of plaintiff's claims when he voluntarily resigned is also unrebutted and is
supported by the record. Further investigation of plaintiff's claims of suspicious
emails established they were sent by plaintiff's computer to which no other
Merck employee had access.
Thus, under McDonnell-Douglas, the burden shifted to plaintiff to show
that the rationale underpinning Merck's employment decisions was not
legitimate and, instead, was merely pretextual. Plaintiff did not offer any
evidence as to why Merck's explanations were merely pretext and, instead, were
taken in furtherance of an unlawful discriminatory intent.
The competent evidential materials in the motion record also do not
establish a prima facie unlawful retaliation claim under the LAD for any post-
employment actions taken by Merck. Plaintiff's claim that Merck incorrectly
advised subsequent prospective employers he had been terminated is not
24 A-2761-21
supported by the motion record. Plaintiff alleges the report that Merck provided
to potential future employers upon request displays a separation code of "TER,"
which plaintiff claims equates to a proclamation that he was terminated, and a
separation description of "PER," which plaintiff argues could be interprete d as
performance-related. Not only is the record devoid of any proofs as to the
meaning of the codes on the report beyond plaintiff's speculation, but plaintiff
has failed to supply any evidence that his job search has been hindered by
dissemination of the report beyond his own unsupported conjecture.
To the extent we have not addressed any of plaintiff's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
25 A-2761-21