SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0791-22 

JAN DASHER, 

 Plaintiff-Appellant, 

v.

UNITED AIRLINES, RICK 

HOEFLING, KELLY TOLBERT, 

GEORGE HENDY, 

 Defendants-Respondents, 

and 

R.D.,1

Defendant. 

___________________________

Submitted February 5, 2024 – Decided March 6, 2024 

Before Judges DeAlmeida and Berdote Byrne. 

On appeal from the Superior Court of New Jersey, 

Law Division, Essex County, Docket No. L-4151-18.

1

 We use initials and pseudonyms to protect the confidentiality of the alleged 

rape victim in these proceedings. 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0791-22

Luretha M. Stribling, attorney for appellant. 

Buchanan Ingersoll & Rooney, PC, attorneys for 

respondents (Michael D. Hall, of counsel and on the

brief; Leonard V. Jones, on the brief). 

PER CURIAM 

Plaintiff, Jan Dasher, appeals from the trial court's award of summary 

judgment in favor of defendants United Airlines, Inc. (United), Rick Hoefling, 

Kelly Tolbert, and George Hendy, and from the trial court's dismissal of his 

complaint against R. D. after a proof hearing. 

We affirm for the reasons expressed in the well-reasoned, twenty-fivepage, written opinion of the Honorable Mayra V. Tarantino. We add the 

following comments. 

United produced sufficient evidence of its race neutral justification for its 

decision to terminate plaintiff, and plaintiff failed to demonstrate a disputed 

material issue precluding summary judgment. As aptly detailed by Judge 

Tarantino, plaintiff maintained a sexual relationship with R.D., his subordinate, 

without reporting the relationship to United as required by United's Code of 

Ethics and Business Conduct (Code of Ethics). When questioned about the 

relationship, he prevaricated, in contravention of United's Working Together 

Guidelines (WTG). After United obtained definitive proof of the relationship, 
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including sexually explicit text messages and videos between plaintiff and R.D., 

he prevaricated again during United's investigation of R. D.'s allegations. Later, 

while internally appealing the decision to terminate him, plaintiff admitted in 

writing he acted inappropriately and United had a valid basis for his termination. 

 Plaintiff, who is Black, alleges United's justification for his termination 

was a pretext for race discrimination because non-minority supervisors who 

maintained sexual relationships with subordinates were not terminated, but he 

failed to offer any evidence to support that allegation. And, although plaintiff 

now vehemently denies having been R.D.'s supervisor, he testified to the 

contrary during his deposition. We need not credit a "sham affidavit" when it is 

proffered solely to preclude summary judgment in the movant's favor. Metro 

Mktg., LLC v. Nationwide Vehicle Assurance, Inc., 472 N.J. Super. 132, 148 

(App. Div. 2022) (quoting Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002)). 

Plaintiff's affidavit does not provide a reasonable explanation for the 

contradiction and fails to clarify any existing confusion from his deposition; it 

serves only to patently contradict his prior deposition testimony and was 

properly disregarded by the trial court. Id. at 149 (quoting Shelcusky, 172 N.J. 

at 201-02). 
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Similarly, plaintiff's claim that he was transferred from the bag room to 

the Transfer of Bags (TOB) area because of his race is belied by the record. The 

employee responsible for plaintiff's transfer is Black. Three of the four 

employees that plaintiff identified in his complaint as never having been 

transferred are also Black. Defendants testified managers and the entire 

leadership team were directed to be proficient in different work areas for 

succession and planning purposes. Plaintiff acknowledged the benefit of this 

practice. He also confirmed there was no monetary or hourly discrepancy 

between a bag room and a TOB area assignment. Plaintiff testified he previously 

worked in the TOB area as a supervisor, undermining his claim that the practice 

was unusual. Although plaintiff claims the transfer was a demotion because 

there were fewer employees to supervise and other employees viewed the TOB 

area as a demotion, plaintiff produced no evidence to support this allegation, 

other than his own opinion. 

In sum, there is no evidence defendants acted with discriminatory intent, 

and hence, no evidence United's legitimate reason for terminating plaintiff was 

pretextual. In a disparate treatment claim, as plaintiff raises here, we utilize the 

burden-shifting framework established in McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973). Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 320, 330 
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(2010). Pursuant to the McDonnell Douglas analysis, a plaintiff must present a 

prima facie case of discrimination. If demonstrated, the burden shifts to the 

defendant to proffer a legitimate, non-discriminatory reason for the action 

complained of and, if this burden of production is satisfied, the burden reverts 

to the plaintiff to prove defendant's reason was pretextual. Id. at 31 (quoting 

Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988)). At the 

second stage, although there is an inference of discrimination, Zive v. Stanley 

Roberts, Inc., 182 N.J. 436, 449 (2005), the burden on the employer is "relatively 

light," Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994); see A.D.P. v. 

ExxonMobil Rsch. & Eng'g Co., 428 N.J. Super. 518, 535 (App. Div. 2012) 

(noting the McDonnell Douglas framework shifts the burden of production, not 

the burden of persuasion, to the defendant). As noted by Judge Tarantino, there 

is ample evidence in the record to support United's legitimate, nondiscriminatory reason for terminating plaintiff. Plaintiff's termination letter 

stated plaintiff was terminated because of his violations of United's Code of 

Ethics and WTG. Hoefling, Hendy, and Tolbert each provided the same 

explanation for plaintiff's termination in their depositions. 

Plaintiff was terminated for disregarding the Code of Ethics by failing to 

disclose his relationship with R.D. and violating multiple expectations in the 
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WTG when he prevaricated about the relationship and the videos and texts in 

the subsequent investigation. 

Plaintiff also claims the trial court erred by dismissing his claims against 

R.D. after a proof hearing. R.D. failed to answer the complaint and default 

judgment was entered against her. Where a defendant has defaulted, a court 

must nevertheless hold a proof hearing and a plaintiff must establish his claims. 

R. 4:43-2; see also Chakravarti v. Pegasus Consulting Grp., Inc., 393 N.J. Super. 

203, 210 (App. Div. 2007) ("Judgment should not be entered without a proof 

hearing . . . ."). Although, in the context of a proof hearing "trial courts have

been directed to view a plaintiff’s proofs 'indulgently,'" Heimbach v. Mueller, 

229 N.J. Super. 17, 20 (App. Div. 1988), a plaintiff may be held to the burden 

of establishing liability as well as damages, despite defendant's default, see

Johnson v. Johnson, 92 N.J. Super. 457, 465 (App. Div. 1966) (explaining 

"[e]ven though a defendant’s answer is stricken for failure to make discovery, 

the plaintiff may be . . . precluded from recovery where the proof which he offers 

in support of his own case reveals a legal defense to his claim"). 

The trial court correctly dismissed plaintiff's NJLAD claims against R.D. 

despite entry of the default judgment. Plaintiff was collaterally estopped from 

relitigating those issues at the proof hearing. Summary judgment, unlike a 
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default judgment, is a judgment on the merits and given preclusive effect. See 

Adelman v. BSI Fin. Servs., Inc., 453 N.J. Super. 31, 40 (App. Div. 2018) (first 

quoting Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 183 (App. Div. 

1993); and then quoting Allesandra v. Gross, 187 N.J. Super. 96, 106 (App. Div. 

1982)). Plaintiff's NJLAD claims against defendants were identical to the 

claims he asserted against R.D., were litigated during defendants' motion for 

summary judgment, decided on the merits, and plaintiff was a party to the 

summary judgment proceedings. Ibid. (quoting Allen v. V & A Bros., Inc., 208 

N.J. 114, 137 (2011)). 

Lastly, the trial court did not err in failing to award any damages in 

plaintiff's defamation claim against R.D. Plaintiff was not terminated because 

of R.D.'s allegation of rape or sexual assault. Rather, he was terminated for 

violations of United's Code of Ethics and WTG. Plaintiff failed to show his 

specific economic or pecuniary loss – termination of his employment – stemmed 

from R.D.'s statement and thus no damages are available to him. Plaintiff's 

testimony at the proof hearing did not establish his reputation or standing in the 

community was impaired. Although plaintiff testified other United employees 

heard R.D.'s allegation, he failed to present any evidence his reputation or 

standing among those employees was adversely affected. 
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Affirmed.