Schorr & Associates’ Employment Case of The Week ending January 22, 2016

By Alan Schorr

    Hansen v. Rite Aid Corp., 2016 N.J. Super. Unpub. LEXIS 107 (unpublished) (App. Div. 2016)

This week, the Appellate Division addressed the issue of discovery of other claims of discrimination.  While New Jersey Courts have repeatedly ruled that other acts of discrimination are relevant and discoverable, Courts continue to struggle with these discovery issues.  This Appellate panel followed established precedent in holding that other claims of discrimination against the employer are discoverable even if the other claims of discrimination were for discrimination against a different protected class.

Harold Hansen was a manager for Rite Aid and its predecessors for 35 years.  He was terminated after an investigation due to an allegation that he failed to properly address shoplifting in his store.  Specifically, one of the employees in the store was suspected of not paying for one package of eye shadow.  He brought an NJLAD claim against Rite Aid for age, gender, and sexual orientation discrimination.  During litigation, Hansen sought to take out-of-state depositions of plaintiffs from another case in New York where the same investigator had been accused of discriminating against other employees by way of a similar type of shoplifting allegation.

The trial court judge denied Hansen’s motion for letters rogatory to take the out-of-state depositions of these other plaintiffs, reasoning that the New York claim was for national origin discrimination, which was “something completely different”.  The judge likened the request to a “fishing expedition” where the information sought was “so incredibly irrelevant” that he could not see why the plaintiff was engaging in this type of discovery.  The judge entered an order which not only prohibited the deposition, but restrained the plaintiff from even obtaining documents from the New York plaintiffs or their attorney.

After discovery, the case went to trial, and the plaintiff lost.  The plaintiff appealed this discovery issue as well as another trial issue which will be discussed below.  The Appellate Division reversed on both issues.  The Appellate Court held that the New York investigation was potentially relevant for at least two reasons.  The first was to determine whether the corporate defendants had knowledge of the investigator’s prior actions and whether they took remedial measures against the investigator as a result of the previous lawsuit.  Here, the Court ruled that it was insignificant that the New York lawsuit was for a different type of discrimination, since the same alleged bad actor was involved and the allegations by this investigator were very similar.

Secondly, citing Connolly v. Burger King, which I successfully litigated, the Court pointed out that corporate response to prior claims of discriminatory conduct may be relevant to establish punitive damages.  Hence, the Court ruled that the trial court erred in denying the letters rogatory.

The second issue in this case involved the trial court’s refusal to permit the plaintiff to read into the record the deposition testimony of a party witness, specifically, the very investigator involved in the discovery dispute.  The defendants had only made him available for one day during the trial, but the plaintiff did not want to call him at that point of his case-in chief.  The defendant argued successfully at trial that since this party-witness was available, that the plaintiff should not be permitted to read in his deposition testimony.  The Appellate Division ruled that the trial court again erred because the deposition testimony of a party witness can always be read into the record, regardless of availability. N.J. Rule 4:16-1(b).  Ultimately, the Court decided that these two errors required a reversal of the trial verdict due to the prejudice suffered by the plaintiff.

Although this case is not published, it can be instructive with regard to discovery of other claims of discrimination and for the reading of party depositions at trial should the issues ever arise.

Plaintiff’s attorney: Denise Campbell.

Defendant’s attorneys: James Bucci, Peter F. Berk, Genova Burns, LLC.

Discovery Motion Judge: Joseph P. Quinn, J.S.C.

Trial Judge: Dennis R. O’Brien, J.S.C.

Appellate Division Judges: Messano, Simonelli and Carroll (per curiam decision).