Evidence of Past Discrimination Claims Relevant Even if Based on Different Protected Classification

By Ralph R. Smith, 3rd, Esq.

One issue that frequently comes up in employment discrimination litigation is whether an employer must identify as part of the discovery process past discrimination claims that may have been previously brought or asserted against it. Often, employers try to avoid disclosure of such information on the grounds that those past claims were based upon completely different protected classifications than the lawsuit where such information is sought.  This type of argument for non-disclosure has become more difficult to make in light of a recent New Jersey Appellate Court decision that found that such information could indeed be relevant evidence and discoverable even when the past discrimination claims are based upon different protected categories.

In Hansen v. Rite Aid Corporation, No. A-2972-13T3 (January 20, 2016), the plaintiff brought suit against his former employer and one of its loss prevention managers claiming that he was fired due to his age, gender, and sexual orientation in violation of New Jersey’s Law Against Discrimination (“LAD”).  As part of the discovery requested in the case, plaintiff sought to take the depositions of four former Rite Aid employees who previously claimed in separate litigation that the defendant loss prevention manager had discriminated against them on the basis of race, national origin and religion.  The trial judge refused to allow the depositions, finding that the previous claims involved completely different allegations, and the request to depose such witnesses was nothing more than a “fishing expedition” designed to seek information that was “incredibly irrelevant” to the case.  Ultimately, the case went to trial and a jury found that plaintiff did not establish his discrimination claims.

The case was appealed to the New Jersey Superior Court-Appellate Division.   There, the plaintiff claimed it was reversible error to have denied him the requested discovery regarding the other previous discrimination lawsuit against the defendants.  In finding error, the Appellate Division ruled that the requested depositions were relevant because the information obtained from them could have shown that the loss prevention manager discriminated against other employees and that Rite Aid knew about such prior discrimination and failed to take corrective action against it.  This the court concluded was relevant to whether Rite Aid had an effective anti-discrimination policy.  Along with being relevant on those issues, the court also believed that such information was similarly relevant to the plaintiff’s request for punitive damages.  This wrongful denial of discovery information, along with certain other claimed trial errors, resulted in a reversal of the jury’s decision and a remand of the case for a new trial on the discrimination charge.

In light of the expansive view expressed by the court in the Hansen matter regarding the relevancy of past discrimination matters asserted against an employer, employers must take their obligations seriously in having effective antidiscrimination policies in place to guard against all kinds of potential discrimination in the workplace.  Ultimately, the best way of eliminating such potentially thorny discovery issues from happening is doing all that is required by the law to prevent such discrimination from occurring in the first place.  Regular training of managers and employees on the evils of discrimination and having updated policies and procedures for investigating discrimination charges are critical to successfully achieving such goals for your workplace.

Municipality Found Not Liable for Fall on Boardwalk Based upon Snow Removal Immunity

By Betsy G. Ramos, Esq.

Plaintiff Kimberly Walter was attending a fireworks display on New Year’s Eve when she slipped and fell on the Ocean City boardwalk. Although it had not snowed that day, it had snowed between 5 to 10 inches a few days earlier. City employees cleared a pathway on the boardwalk for the festivities. While walking toward the music pier, the plaintiff fell, fracturing both wrists. In Walter v. City of Ocean City, 2016 N.J. Super. Unpub. LEXIS 613 (App. Div. March 22, 2016), the plaintiff argued that the common law snow removal immunity afforded to the City should not bar her claim and appealed the summary judgment order granted to the defendant City.

The Appellate Division noted that municipalities have no duty to clear snow and ice from the streets. Often, just attempting to clear snow and ice creates new perils in the form of obstructive snow piles and melting water that refreeze on walkways.

The Court explained that the common law doctrine of snow removal was “born out of a recognition that complete ‘broom-swept’ snow clearance is unrealistic, and even negligent snow removal is better than no snow removal.” Further, this immunity recognizes that municipalities face a difficult task of prioritization following a snowfall and protects them from the “limitless liability” that could result if they could be liable to every person injured from ice and snow on a municipality’s streets and highways.

The common law snow removal immunity has traditionally applied to plowed streets, driveways, and sidewalks. Plaintiff contended that it should not apply to a boardwalk which is fundamentally different from a sidewalk or street because there is no emergency traffic and shops are mostly closed during the winter. Further, it is not contiguous to the street.

However, the Appellate Division found that the boardwalk is maintained by Ocean City and open to pedestrian traffic year round. Thus, when allocating scarce snow removal resources, Ocean City must necessarily include the boardwalk among the areas it must consider. Thus, it is different from a public housing development (which would not be able to utilize this immunity) because the boardwalk does not represent a discrete area with its own maintenance staff.

Plaintiff also argued that Ocean City’s actions were so egregious that the court should not apply snow removal immunity. The plaintiff contended that Ocean City had notice that many visitors would attend the boardwalk New Year’s Eve and the extra burden of salting and sanding would have been minimal. However, the Appellate Division rejected this argument, finding that such a conclusion would have been contrary to its prior decisions.

As the Supreme Court pointed out in a prior case, “the usual traveling conditions following a snowfall are obvious to the public. Individuals can and should proceed to ambulate on a restricted basis, and if travel is necessary, accept the risks inherent at such a time.”

Accordingly, the Appellate Division rejected the plaintiff’s arguments and upheld the order granting summary judgment to Ocean City, dismissing the case

Spring Clean Up For Your Business

vincent-cieslikBy Vincent T. Cieslik, Esq.

New Year’s Resolutions have come, and in some instances, passed.  Spring is now upon us and there is no better time than now to give your business a Spring Clean Up.  Often times in business, we do not know what we need, until we need it, and then it may be too late.  You can be proactive by sitting down with a business attorney who can review your business model, evaluate your current invoices, contracts, and supply documents, and assist you in bringing your business up to date with the times.

Too many times, a party will find out only after they have not been paid by a key supplier, that they need to have an attorney fee provision in their contracts or on their invoices, if they want to recover the attorney’s fees spent chasing down unpaid bills.  Only when the agreement is before a judge, an arbitrator, or in the hands of a creative attorney representing your opposition, do you often find out about the weaknesses in an agreement.  What you thought was a “rock solid” non-compete provision forbidding your competitor from hiring your old sales persons, may not provide the protection you desire.  What you had hoped would provide for confidentiality of your customer list, your pricing models, and your key strategic goals, may not be sufficiently covered and protected.

While business people know their business and customers inside out, they are often (and hopefully) strangers to the court room where their business contracts will be interpreted, enforced, or rejected.

Our seasoned and skilled business attorneys and litigators argue these and similar business, employment and non-compete contracts on a daily and regular basis.  They are familiar with the cases which interpret those and similar contracts, and they can provide guidance on how your contracts and business documents may be improved.  During those consultations, we may be in the position to consider and evaluate other aspects of your business, such as loss reporting, loss mitigation, banking and regulatory issues which are not being adequately addressed, or which may require additional attention.  Social and media policies, no more relevant than they are today, may require updating so that your employees and your staff are handling social media consistent with your corporate mission, and within the bounds of best practices.

You would also be surprised how we can help you improve on other aspects of your business, which may protect your investment in the company, and avoid expensive litigation down the road.  One type of program that is gaining traction with hospital and medical care facilities concerns a more pro-active approach to identifying and resolving potential claims, which provides valuable lessons that other businesses and fields can learn from.  Hospitals and administrators are seeking to identify mistakes or poor outcomes early in the process, to apologize for injuries and losses which helps address  patient and family concerns immediately, and to make early settlement resolution a high priority before claims or lawsuits are filed.  We may be able to help you develop a similar communication and resolution program, which can in appropriate circumstances offer financial and other compensation to customers who are unhappy or feel wronged.  Promptly addressing their concerns, keeping the lines of communication open, and proactively seeking an early resolution may avoid bigger and more expensive claims down the road.  Hospitals, car dealerships, restaurants, and retailers all have liability risks which may be better managed through programs which provide for face-to-face personalized interaction, prompt communication, and early settlement discussions.  Employers and businesses which can quickly identify risks in their shipment process, in their human relations chain, or in their accounts receivable can avoid unfortunate and unintended expenses and losses.  Cleaning these issues up now may avoid problematic and expensive claims that could adversely affect your claims history, your standing in the community, and could help you avoid costly insurance premium increases.

Laura Ruccolo Named “Woman to Watch” in South Jersey Business

Laura D. RuccoloMt. Laurel, NJ – – Capehart Scatchard Shareholder, Laura D. Ruccolo, was recently named by South Jersey Biz magazine as a “Woman to Watch” in 2016.  Ms. Ruccolo is one of 24 women selected to the list, which identifies female leaders in philanthropy, finance, marketing, health care and beyond who are making their mark in their respective fields.

Ms. Ruccolo, a Marlton resident, concentrates her practice primarily in commercial, employment and complex general civil litigation and commercial transactions.  Her litigation experience has included small and complicated commercial litigation on behalf of lending institutions, corporations and individuals including but not limited to consumer fraud, breach of contract, discrimination and wrongful discharge claims and business disputes.