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

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1 We use initials and pseudonyms to protect the confi dentiality 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 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. 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, In c. (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-rea soned, twenty-fivepage, written opinion of the Honorable Mayra V. Tar antino. We add the following comments.
Un ited produced sufficient evidence of its race neutral j ustification for its decision to terminate plaintiff, and plaintiff fail ed to demonstrate a disputed material issue precluding summary judgment. As apt ly detailed by Judge Tarantino, plaintiff maintained a sexual relationsh ip 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,3 A- 0791

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including sexually explicit text messages and video s between plaintiff and R.D. , he prevaricated again during United's investigation o f R. D.'s allegations. Later , wh ile internally appealing the decision to terminate him , plaintiff admitted in writing he acted inappropriately and United had a v alid basis for his termination. Plaintiff, who is Black, alleges United's justific ation for his termination

was a pretext for race discrimination because non-minorit y supervisors who maintained sexual relationships with subordinates w ere not terminated, but he failed to offer any evidence to support that allega tion. And, a lthou gh plaintiff

now vehemently denies having be en 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 th e movant's favor. Metro Mktg., LLC v. Nationwide Vehicle Assurance, Inc., 4 72 N.J. Super. 132, 148 (App. Div. 2022) (quoting Shelcusky v. Garjulio, 17 2 N.J. 185, 194 (2002)). Plaintiff's affidavit does not provide a reasonable explanation for the contradiction and fails to clarify any existing con fusion from his deposition; it serves only to patently contradict his prior deposi tion testimony and was properl y disregarded by the trial court. Id. at 149 (quotin g Shelcusky, 172 N.J. at 201-02).4 A- 0791

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Similarly, plaintiff's claim that he was transferre d from the bag room to the Transfer of Bags (TOB) area because of his race is belied by the record. The employee re sponsible for plaintiff's transfer is Black. Three of the four employees that plaintiff identified in his complain t as never having been transferred are also Black. Defendants testified m anagers and the entire leadership team were directed to be proficient in d ifferent work areas for succession and planning purposes. Plaintiff acknow ledged the benefit of this practice. He also confirmed there was no monetary or hourly discrepancy between a bag room and a TOB area assignment. Plai ntiff testified he previously worked in the TOB area as a supervisor, undermining his clai m that the practice was unusual. Although plaintiff claims the transfe r was a demotion because there were fewer employees to supervise and other e mployees 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 f or 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. S ervs., 204 N.J. 320, 3305 A- 0791

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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 bur den of production is satisfied, the burden reverts to the plaintiff to prove defendant's reason was pr etextual. 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 dis crimination, 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 Ci r. 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 Jud ge Tarantino, there is ample evidence in the record to support United's legitimate, nondiscriminatory reason for terminating plaintiff. P laintiff's termination letter stated plaintiff was terminated because of his viol ations of United's Code of Ethics and WTG. Hoefling, Hendy, and Tolbert each provided the same explanation for plaintiff's termination in their de positions. Plaintiff was terminated for disregarding the Code of Ethics by failing to disclose his relationship with R. D. and violating multiple expectations in the6 A- 0791

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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 dism issing 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., In c., 393 N.J. Super. 203, 210 (App. Div. 2007) ("Judgment should not be entered without a proof hearing . . . ."). Although, i n the context of a proof hearing "trial courts have been directed to view a plaintiff’s proofs 'indulge ntly ,'" Heimbach v. Mueller , 229 N.J. Super. 17, 20 (App. Div. 1988), a plaintif f may be held to the burden of establishing liability as well as damages, despi te defendant's default, s ee Johnson v. Johnson , 92 N.J. Super. 457, 465 (App. Div. 1966) (explain ing "[e]ven though a defendant’s answer is stricken for failure to mak e 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 NJL AD claims against R. D. despite entry of the default judgment. Plaintiff w as collaterally estopped from relitigating those issues at the proof hearing. Su mmary judgment, unlike a7 A- 0791

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default judgment, is a judgment on the merits and g iven preclusive effect. See Adelman v. BSI Fin. Servs., Inc., 453 N.J. Super. 3 1, 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 i dentical to the claims he asserted against R.D. , were litigated during defendants' motion for summary judgment, decided on the merits, and plaint iff 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 a ward 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. Ra ther, he was terminated for violations of United's Code of Ethics and WTG. Pla intiff 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. Pl aintiff's testimony at the proof hearing did not establish hi s reputation or standing in the community was impaired. Although plaintiff testifi ed other United employees heard R.D.'s allegation, he failed to present any e vidence his reputation or standing among those employees was adversely affect ed.8 A- 0791

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Affirmed.