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N.J.S.A. 10:5-12(a),(l), an order denying his motion to amend his complaint to include an allegation of reprisal
contrary to N.J.S.A. 10:5-12(d), and an order denying his motion for reconsideration. Defendant Pinnacle Foods
Corporation (Pinnacle) and its Director of Information Technology, defendant Donna Wynn (Wynn), cross-appeal
from the part of an order denying their application for counsel fees and costs pursuant to N.J.S.A. 10:5-27.1. After
reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm. "> Original
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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2283-07T12283-07T1
DARYL MURRAY,
Plaintiff-Appellant
Cross-Respondent,
v.
PINNACLE FOODS CORPORATION
and DONNA M. WYNN,
Defendants-Respondents/
Cross-Appellants.
Argued October 15, 2008 - Decided
Before Judges Graves and Grall.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-1526-07.
Daryl Murray, appellant/cross-respondent pro se.
Richard T. Welch argued the cause for respondents/
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cross-appellants (Starr, Gern, Davison & Rubin,
attorneys; Nicholas Stevens, of counsel;
Mr. Stevens and Richard T. Welch, on the brief).
PER CURIAM
Plaintiff Daryl Murray (Murray) appeals from a summary judgment order dismissing his complaint alleging race-
based discrimination in hiring and contracting contrary to N.J.S.A. 10:5-12(a),(l), an order denying his motion to
amend his complaint to include an allegation of reprisal contrary to N.J.S.A. 10:5-27.1. After reviewing the record
and applicable law in light of the arguments advanced on appeal, we affirm.
The material facts, viewed in the light most favorable to Murray, are as follows. Murray works as a computer
programmer and analyst. Pinnacle is a Delaware corporation engaged in the manufacturing and distribution of
frozen foods, with a business office in Cherry Hill, New Jersey. In January 2002, Murray applied for an open position
in Pinnacle's information technology department, but another applicant, not a member of a protected class, was
selected.
After that unsuccessful application, Murray established Murray Communications, L.L.C. He is its sole principal. On
October 12, 2004, Pinnacle retained Murray as a consultant through his LLC. Pursuant to that "Consulting and
Confidentiality Agreement" (Agreement), Pinnacle was to pay Murray at the rate of $65 per hour for consulting and
technical services. The Agreement stated that Murray was an independent contractor and that either party could
cancel the Agreement "at any time by providing the other with fourteen (14) days written notice." Prior to finalizing
the Agreement, Murray was interviewed by Wynn at Pinnacle's business office.
On November 8, 2004, Pinnacle terminated plaintiff's agreement with Murray effective that day. On the same day
Murray wrote to Tony Hipszer, Pinnacle's Vice President of Information Technology. Although he acknowledged he
was terminated because Pinnacle was not satisfied with the progress of his work, Murray disagreed with Pinnacle's
assessment of his work and stated Pinnacle had failed to give him proper notice the Agreement would be cancelled:
On November 8, 2004, at or about 4:45 pm, you summoned me to your office to
verbally inform me that Pinnacle was terminating the aforesaid contract effective
"immediately." You stated that your managers Donna Wynn and Lorna Fisher were not
happy with the progress that I had made on the MEI Interface Program and that Donna
Wynn did not think that I was capable of helping her team complete the project on
time. You further stated that upon the conclusion of our brief informal meeting, you
would allow me several minutes to return to my work area, collect my belongings, and
sign off from my computer sessions. At which time you would meet me at my assigned
cubicle and then escort [me] out of the building. After hearing your verbal termination
notice, I immediately expressed to you my respectful disagreement with Donna Wynn's
assessment of the status of the program development. In fact, I additionally offered
that I had indeed delivered a working program as per the vague specifications given to
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me to date, and was in the process of completed self defined testing and debugging of
the application program in question. I also expressed to you that Pinnacle Foods was
now in Breach of Contract as it had violated the "Term" clause of the Agreement by
failing to give proper and timely written notice to terminate said contract.
In the same letter, Murray stated Pinnacle's actions were "disrespectful and discourteously unprofessional"
and its conduct was harmful to his "professional character and good name." Murray also advised he would be "filing
a civil suit to recover both compensatory and punitive damage[s]." There was no mention of race in the letter
Murray sent to Pinnacle on November 8, 2004.
In January 2005, after an unsuccessful attempt to negotiate a payment of compensation and damages due
on account of Pinnacle's failure to give two-week's notice as required by the Agreement, Murray filed a complaint in
Camden County sounding in contract and tort. He did not include a count alleging a violation of the Law Against
Discrimination, N.J.S.A. 10:5-1 to -42.
In June 2005 and April and June 2006, Murray reapplied for employment with Pinnacle, again without
success. In December 2006, Murray filed a second suit in a different venue, Burlington County (Docket No. L-3456-
06). In that complaint, Murray charged that another independent contractor had wrongfully acquired his consulting
opportunity with Pinnacle and that Pinnacle fraudulently concealed, "withheld, altered and/or destroyed" evidence
relevant to the Camden County case. That complaint was dismissed as to Pinnacle on February 2, 2007 and
voluntarily dismissed as to the other independent contractor on March 26, 2008.
In June 2007 Murray again submitted his resume in pursuit of employment with Pinnacle, again without
success, and he also filed the Burlington County complaint that led to this appeal. The acts of discrimination alleged
were based upon Pinnacle's hiring decision in 2002, termination of his consulting agreement on November 8, 2004,
and Pinnacle's hiring decisions in 2005 and 2006. Murray's proposed amended complaint, which he was denied
leave to file, included a charge that Pinnacle's denial of his application in 2007 was based upon racial discrimination.
On its motion for summary judgment, Pinnacle contended that Murray's claims based upon events up to and
including the termination of the consulting agreement were barred by the two-year statute of limitations. With
respect to its rejection of Murray's employment applications filed after termination of the consulting agreement,
Pinnacle asserted a business reason for those decisions, one of which was Murray's ongoing litigation of claims
against Pinnacle.
The trial court ruled Murray's LAD claims based on Pinnacle's failure to hire him in 2002 and his LAD claims resulting
from termination of his consulting agreement in 2004 were time-barred. Moreover, because of Murray's
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"antagonistic approach" following termination of the consulting agreement, the court found that Pinnacle had
legitimate business reasons for refusing to rehire him in 2005 and 2006, and that there was insufficient evidence to
support an inference that Pinnacle did not act for its proffered nondiscriminatory reasons in 2005, 2006 or 2007.
Murray filed a motion for reconsideration and other relief, and defendants filed a cross-motion for
reconsideration of the court's decision denying counsel fees and costs. Both motions were denied on December 10,
2007.
On appeal, plaintiff presents the following arguments:
POINT I
UNDER BRILL, THE DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT AS A
MATTER OF LAW BECAUSE THERE EXISTS GENUINE ISSUES OF MATERIAL FACTS.
A. DISCOVERY HAS NOT BEEN COMPLETED. NO DEPOSITIONS HAVE BEEN
TAKEN.
B. THE CERTIFICATIONS OF MAUREEN BURCHER ("BURCHER") AND TONY
HIPSZER ("HIPSZER") VIOLATE RULE 1:6-6.
C. THERE EXISTS GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE.
POINT II
THE TRIAL COURT HARMFULLY ERRED IN DECIDING A DISPUTED FACTUAL ISSUE
(WHETHER PINNACLE'S PROFFERED EXPLANATION IS PRETEXTUAL OR WHETHER,
PINNACLE'S ADMITTED "RETALIATORY DISCRIMINATION" WAS MORE LIKELY THAN NOT
A DETERMINATIVE FACTOR IN THE DECISION NOT TO REHIRE OR HIRE PLAINTIFF AGAIN
IN THE FUTURE.).
D. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATION.
E. PLAINTIFF'S PRETEXT THEORY.
F. DEFENDANTS ADMITTED THEY WERE MOTIVATED BY DISCRIMINATORY
INTENT AND PINNACLE ACTED PURSUANT TO A POLICY THAT IS
DISCRIMINATORY ON ITS FACE.
G. THERE IS MORE THAN SUFFICIENT EVIDENCE IN THE RECORD TO SHOW
THAT PLAINTIFF ENGAGED IN PROTECTED ACTIVITIES.
POINT III
THE COURT ERRED BY FAILING TO CONSIDER WHETHER PLAINTIFF PRESENTED SOME
EVIDENCE, DIRECT OR CIRCUMSTANTIAL, FROM WHICH A REASONABLE FACTFINDER
COULD CONCLUDE THE DEFENDANTS' PROFFERED REASONS WERE EITHER A POST HOC
FABRICATION OR OTHERWISE DID NOT ACTUALLY MOTIVATE THE ADVERSE
EMPLOYMENT ACTION.
POINT IV
THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF'S NOVEMBER 2004 REFUSAL TO
DEAL CLAIM IS BARRED BY THE 2-YEAR STATUTE OF LIMITATIONS AND BY THE ENTIRE
CONTROVERSY DOCTRINE.
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POINT V
THE TRIAL COURT ERRED AND MISINTERPRETED THE LAW BY FAILING TO FIND THAT
INDEPENDENT CONTRACTORS ARE ENTITLED TO AVAIL THEMSELVES TO THE
PROTECTION OF 981 IS SUBJECT TO A 4-YEAR STATUTE OF LIMITATIONS.
POINT VII
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF'S CROSS-MOTION
FOR LEAVE TO FILE AN AMENDED COMPLAINT TO ADD A RETALIATORY
DISCRIMINATION CLAIM UNDER N.J.S.A. 10:5-27.1 because plaintiff's complaint was
"brought in bad faith."
After considering each of these contentions in light of the record, the briefs, and the applicable law, we are satisfied
they do not warrant extended discussion in a written decision. R. 2:11-3(e)(1)(E). We therefore affirm with only the
following comments.
The trial court's ruling that plaintiff's 2002 and 2004 claims are time-barred is correct. The statute of limitations for a
LAD action is two years. Montells v. Haynes, 133 N.J. 282, 292 (1993). Contrary to Murray's claims on appeal, his
evidence did not bring him within the "equitable exception" for a "continuing violation," which requires proof of a
pattern of discriminatory acts one of which occurred "within the statutory limitations period." Shepherd v.
Hunterdon Developmental Ctr., 174 N.J. 1, 6-7 (2002). The doctrine is not applicable to claims of employment
discrimination based upon "discrete acts" such as refusal to hire and termination that accrue at the time of the
unfavorable action; rather the doctrine applies in the context of a claim a series of actions over time "viewed
cumulatively constitute a hostile work environment." Id. at 19, 21. Murray's claims are based on a series of alleged
discrete adverse actions, each of which gave rise to a cause of action that accrued at the time taken, and any
attempt to show continuity between them is defeated by the undisputed fact that Pinnacle hired Murray as a
consultant in 2004.
Next, we consider the claims not barred by the statute of limitations. For the reasons stated by the trial court, we
conclude that Pinnacle is entitled to summary judgment on claims based on Pinnacle's actions within the
limitations period — i.e., discriminatory or retaliatory refusal to hire in 2005, 2006 and 2007.
The framework for analyzing a claim of discrimination in the context of employment is as follows:
(1) proof by plaintiff of the prima facie elements of discrimination; (2) production by the
employer of a legitimate, non-discriminatory reason for the adverse employment
action; and (3) demonstration by plaintiff that the reason so articulated is not the true
reason for the adverse employment action, but is instead a pretext for discrimination.
[Myers v. AT&T, 380 N.J. Super. 443, 452-53 (App. Div. 2005), certif. denied, 186 N.J. 244
(2006).]
We begin by assuming, without deciding, that Murray made the requisite prima facie showing of discrimination in
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connection with Pinnacle's decision to give no consideration to the resumes in 2005, 2006 or 2007. That, however,
was not enough to permit Murray to prevail on Pinnacle's motion for summary judgment because Pinnacle offered
non-discriminatory business reasons for its decision. Among the business reasons offered by Pinnacle was one
based upon an undisputed fact — when Murray submitted his applications in 2005, 2006 and 2007 he was, at the
same time, pursuing litigation against Pinnacle and its employees. Pinnacle's assertion, in essence, was that it was
not in its interest to hire an adversary in ongoing litigation. This asserted business reason was adequate to permit a
jury to find "that unlawful discrimination was not the cause of the adverse employment action." Greenberg v.
Camden County Vocational and Technical Sch., 310 N.J. Super. 189, 199 (App. Div. 1998). Once confronted with this
business reason, which was supported by undisputed evidence of the ongoing litigation, Murray could not
withstand Pinnacle's motion for summary judgment without presenting evidence that would "allow a factfinder
reasonably to infer that . . . the employer's proffered non-discriminatory reason[]" was pretextual. Id. at 200 (internal
quotations omitted). Thus, Murray was not entitled to a jury trial unless he produced sufficient evidence to support
an inference "that discrimination was more likely than not a motivating or determinative cause of the adverse
employment action." Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).
When viewed in a light most favorable to Murray, the facts are "so one-sided" that defendants are entitled to
summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Murray did not
have any evidence that raised even a suspicion about the plausibility of Pinnacle's asserted business reason. See
Greenberg, supra, 310 N.J. Super. at 200 (concluding that a plaintiff needs some evidence showing "implausibilities
in the employer's proffered reasons" to withstand a motion for summary judgment). Given Pinnacle's hiring of
Murray in 2004 and Murray's repeated submission of his resume after Pinnacle terminated his consulting contract,
no reasonable factfinder could determine that Pinnacle's reasons for refusing to rehire Murray were pretextual.
Accordingly, we affirm the order granting Pinnacle's motion for summary judgment on Murray's claims of
discrimination in hiring in 2005, 2006 and 2007.
Pinnacle was also entitled to a grant of summary judgment on Murray's claim of retaliation prohibited by 336 N.J.
Super. 395, 418 (App. Div. 2001), rev'd in part on other grounds and aff'd on this ground o.b., 174 N.J. 1, 27 (2002)).]
Murray did not allege racial discrimination until he filed this complaint in June 2007. Accordingly, his evidence does
not raise a genuine issue of material fact on two essential elements of the retaliation claim. He did not provide
evidence that would permit a jury to find that Pinnacle knew he was engaged in protected activity or that there was
a "causal link" between "protected activity and the adverse employment decision." Ibid.
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Defendants' claim that the court erred in denying counsel fees pursuant to N.J.S.A. 10:5-27.1 lacks merit. Fees are
awardable against the plaintiff under this statute only if the court concludes that a matter lacking merit was brought
in bad faith. Michael v. Robert Wood Johnson Univ. Hosp., 398 N.J. Super. 159, 167 (App. Div. 2008). That question is
one best left to an exercise of the trial court's discretion, and we see no abuse of that discretion in this case.
Affirmed.
Murray states in his reply brief that a second supplemental complaint filed in Camden County on January 2, 2008,
"includes a race based discrimination claim under 42 U.S.C. § 1981." The Camden County action has been removed
to the United States District Court for the District of New Jersey, and is presently pending. On March 31, 2009, the
federal court stayed that proceeding pending disposition of this appeal.
Although the trial court denied Murray's application to amend his complaint to include Pinnacle's conduct in 2007,
a denial of a motion to amend and supplement a complaint with a claim that cannot be established is proper
because the amendment would be futile. See Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006). As the
operative facts material to the 2007 applications are no different than those relevant to the 2005 and 2006
applications, we address them together on the merits.
(continued)
(continued)
14
A-2283-07T1
October 16, 2009
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