SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2761-21 

KEDAR TELANG, 

 

 Plaintiff-Appellant, 

v.

MERCK SHARPE & DOHME 

CORP., 

 Defendant-Respondent. 

___________________________

Submitted January 18, 2024 – Decided February 13, 2024 

Before Judges Currier and Vanek. 

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-2347-18. 

Kedar Telang, appellant pro se (Raymond Joseph 

Siegler, on the brief).1 

Tucker Law Group LLC, attorneys for the respondent 

(Leslie Miller Greenspan and Dimitrios Mavroudis, on 

the brief). 

1

 Plaintiff submitted a pro se supplemental brief after a substitution of attorney 

was filed designating him as a self-represented litigant. 

NOT FOR PUBLICATION WITHOUT THE 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-2761-21

PER CURIAM 

 Plaintiff Kedar Telang appeals the March 29, 2022 order granting 

summary judgment to his prior employer, defendant Merck Sharp2 & Dohme 

LLC (Merck), dismissing his unlawful retaliation claim under the New Jersey 

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50. Because the trial 

court did not err in finding plaintiff failed to establish a prima facie case or that 

Merck's reasons for actions taken before, during, and after plaintiff's 

employment were pretext, we affirm. 

Plaintiff filed a three-count amended complaint alleging unlawful 

retaliation in violation of the LAD (count one), violation of the New Jersey 

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8 (count 

two), and violation of the New Jersey Fair Credit Reporting Act (NJFCRA), 

N.J.S.A. 56:11-28 to -43 (count three). On September 28, 2018, the trial court 

dismissed the CEPA claim on Merck's motion. On January 29, 2021, the trial 

court denied Merck's motion for summary judgment as to the LAD and NJFCRA 

claims. On March 29, 2022, the trial court granted summary judgment as to the 

LAD and NJFCRA claims on Merck's motion for reconsideration. 

2

 Defendant is named in this litigation as Merck Sharpe & Dohme Corp. We 

use the name of the corporation set forth by defendant. 
3 A-2761-21

Plaintiff initially appealed the trial court orders dismissing all three counts 

of the amended complaint. However, plaintiff later withdrew the appeal of the 

orders dismissing counts two and three. Accordingly, this appeal is narrowed 

to only our review of the trial court's order granting summary judgment as to the 

LAD claim in count one.3

Although we review a motion for reconsideration for abuse of discretion, 

interlocutory orders are subject to review at any point prior to final judgment in 

the interest of justice. R. 4:42-2(b); see Lombardi v. Masso, 207 N.J. 517, 535-

536 (2011). Since the order denying Merck's motion for summary judgment as 

to plaintiff's LAD and NJFCRA claims was interlocutory, the trial court did not 

err in exercising its discretion in the interest of justice to reconsider whether 

summary judgment was appropriately denied. 

We review a trial court's grant or denial of a motion for summary judgment 

de novo, applying the same standard applied by the trial court. Samolyk v. 

Berthe, 251 N.J. 73, 78 (2022). As a result, we are tasked with determining 

"'whether the competent evidential materials presented, when viewed in the light 

most favorable to the non-moving party, are sufficient to permit a rational 

factfinder to resolve the alleged disputed issue in favor of the non-moving 

3

 The trial court's written decision references the LAD claim as count three. 

The substance of the trial court's decision and the briefing establishes the LAD 

claim was count one of plaintiff's amended complaint. 
4 A-2761-21

party.'" C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 305 (2023) (quoting 

Samolyk, 251 N.J. at 78). We view the facts in the motion record under this 

lens in the light most favorable to plaintiff for purposes of determining whether 

the trial court improvidently granted summary judgment as to plaintiff's LAD 

claim. 

Plaintiff, who is a United States citizen of Indian origin, was employed by 

non-party Covanta as a finance manager from November 2011 through March 

2016. Plaintiff alleges Covanta discriminated against him based on his national 

origin. Plaintiff's complaints of discrimination to Covanta's human resources 

(HR) team were predicated on excluding him from key meetings, unfairly 

denying his request for a promotion, and placing him on a sixty-day performance 

improvement plan. Plaintiff was subsequently terminated from his position at 

Covanta, which he attributed to retaliation for filing complaints with HR. 

After plaintiff was terminated by Covanta, he interviewed for two 

positions with Merck: associate director and senior specialist. Two of Merck's 

directors, John Kennedy and Matt Butler, interviewed plaintiff for the associate 

director position. According to plaintiff, during the interview, Butler made an 

inappropriate comment regarding plaintiff's alleged "greed" and Kennedy 

"unfairly" conducted the technical analysis of his skills. On May 11, 2016, 
5 A-2761-21

plaintiff received an email stating Merck hired another candidate who better fit 

the requirements of the associate director position. 

 In August 2016, plaintiff was interviewed for the senior specialist position 

by Merck's hiring director, Elaine Gin, and executive director, Diana Gengos. 

According to plaintiff, Gengos told him during the interview his experience was 

"much more suited" for the associate director position. Although Merck told 

plaintiff the associate director position was going to be filled by another 

candidate, Gengos stated during the interview the position was still vacant. 

 Plaintiff subsequently learned that companies he had interviewed with 

were told plaintiff had pending litigation against Covanta when attempting to 

verify his employment history. Plaintiff wrote a letter to Covanta asking it to 

investigate this alleged misstatement and clarifying that there was no pending 

litigation between him and Covanta. Plaintiff shared this letter with Merck's job 

recruiter, Kim Ostroski, who told him Merck's decision regarding the senior 

specialist position was not yet final. 

 The morning after plaintiff sent Ostroski a copy of the letter to Covanta, 

she called plaintiff to thank him for clarifying the issue and offered him the 

senior specialist position at Merck. Plaintiff assumed the timing of the offer 

evidenced that Merck only agreed to hire him after learning he had not sued his

prior employer for discrimination. Plaintiff requested the associate director 
6 A-2761-21

position instead, but Ostroski stated that his qualifications and experience level 

were "commensurate" with the senior specialist role. Plaintiff felt Ostroski's 

opinion conflicted with Gengos's statements to him during his interview for the 

senior specialist position. 

 On September 20, 2016, plaintiff accepted the Merck senior specialist 

position. Merck's prior employment verification process was completed without

any issue regarding his Covanta employment being brought to plaintiff's 

attention. When plaintiff started working on October 24, 2016, it became 

immediately apparent to him that he was overqualified for the senior specialist 

position, which he viewed as an entry-level position below the associate director 

position he interviewed for and subordinate to the position he held at Covanta. 

At the first team meeting held after plaintiff was hired, Kennedy warned 

the group collectively that gossiping was against company policy. Plaintiff 

construed this warning, together with the totality of the circumstances, as an 

indication that co-workers were aware of his alleged claim against Covanta and 

had been gossiping about it. There is no evidence in the motion record of any 

specific statements made by co-workers discussing any claim plaintiff filed 

against Covanta. 

 Plaintiff contends that immediately upon commencing employment with 

Merck, he was subjected to "a hostile environment" through "body language," 
7 A-2761-21

"hurtful comments," and "adverse actions." To this end, plaintiff contends 

senior members of Merck ended conversations when he approached and avoided 

being alone with him at Merck's holiday lunch. Plaintiff thought all of his 

superiors and co-workers were uncomfortable around him. He felt his manager, 

Raymond Hawryluk, acted anxiously in his presence and avoided making eye 

contact with him. Plaintiff states Hawryluk suggested more than once that he 

should move to another group within the company. 

 Plaintiff alleges some of his colleagues made the following hurtful 

comments which referenced a mistaken understanding he had received a large 

sum of money by suing Covanta and, therefore, he did not need to work hard at 

Merck: 

"Not everyone is a millionaire around here, Kedar. 

Some of us have to work." 

"If I were you, I would be chilling too." 

"Where are you going on vacation? London? Paris? I 

bet you can go anywhere you like." 

Plaintiff claims Merck attempted to terminate his employment several 

times. Plaintiff describes one instance when he was slated to be laid off as part 

of alleged budget cuts while his team was simultaneously planning to hire 

someone for a more senior position. On another occasion, plaintiff's team 

attempted to set him up for termination by assigning him an important task the 
8 A-2761-21

evening before the project deadline. When he finished the task in a timely 

manner, his colleagues were visibly upset. 

In November 2016, plaintiff asked to meet confidentially with Gengos and 

relayed to her that Covanta had provided unfavorable references mentioning 

litigation plaintiff filed against it in the summer of 2016. During this meeting, 

plaintiff asked Gengos if Merck had received this incorrect information in 

connection with Merck's employment verification process. Gengos replied that 

she was not aware of any such evidence but offered to communicate with HR 

about the issue and agreed to be discreet about her conversation with plaintiff. 

Plaintiff further requested that Gengos provide him with any such evidence she 

might receive as he contemplated possible future litigation against Covanta. 

Plaintiff relayed the same information and request to Hawryluk during a 

conversation on January 17, 2017. According to plaintiff, Hawryluk stated he 

was aware that an issue regarding plaintiff's prior employment had arisen during 

Merck's employment verification process, but he denied knowing any specifics. 

Plaintiff interpreted Hawryluk's comment to mean that, as of January 2017, 

Merck was aware plaintiff had previously threatened litigation against Covanta 

and was again contemplating a lawsuit against his prior employer. 

On January 23, 2017, Gengos emailed plaintiff after communicating with 

HR and advised him Merck had no information regarding any issues arising 
9 A-2761-21

during plaintiff's employment verification process. Plaintiff asserts this 

message contradicted what Hawryluk told him. 

Plaintiff observed several co-workers visit the offices of Kennedy and 

Gengos wishing them good luck and asking them to stay in touch. Plaintiff took 

this to mean that Kennedy and Gengos were aware they were being imminently 

terminated in order to prevent Merck's HR team from speaking with them during 

an internal investigation. Plaintiff assumed this was because they had 

knowledge of misinformation provided by Covanta in connection with Merck's 

employment verification of him. Kennedy and Gengos were not terminated from 

Merck. 

In February or March 2017, plaintiff heard Hawryluk speaking with Chris 

Feudo, an attorney representing Covanta, but he did not hear the context or 

specifics of the conversation. Nonetheless, plaintiff concluded that Covanta and 

Merck were both using the same attorney to jointly retaliate against him "based 

on his national origin and his threats of legal action to seek redress for Covanta's 

and Merck's violations of his civil rights." 

Plaintiff discovered that between December 2016 and March 11, 2017, he 

received emails sent from his Merck email account to his personal account 

containing statements such as: "Don't do it," "I am sad," "You are not the doer, 

God is the doer," and "Yes, believe it or not I am talking to you." On March 13, 
10 A-2761-21

2017, plaintiff reported the emails to Hawryluk who asked the information 

technology (IT) team to investigate. The IT team was unable to determine any 

alternative source of the emails and closed the matter. Plaintiff felt the emails 

were unlawful retaliation sent by someone else to damage his reputation. 

On March 14, 2017, plaintiff filed a written complaint with Hawryluk 

alleging retaliation and referencing the emails. When Hawryluk did not 

respond, plaintiff sent the same complaint to Gengos the next day. Plaintiff 

received no response from Gengos. 

Plaintiff was scheduled to work remotely on March 16, 2017, but

discovered his access to Merck's computer network had been terminated. 

Plaintiff reported the issue to Hawryluk and Gengos but did not receive an 

immediate response. Hawryluk instead asked plaintiff to attend an in-person 

meeting on March 17, 2017. Plaintiff feared he would be terminated at this 

meeting, so he sent an email to Merck's senior management asking that his 

position be given "whistleblower protection." 

When plaintiff arrived for the meeting, he discovered his employee 

identification no longer provided him with access to the work site. Upon 

meeting with Merck representatives, Chris Nigro from HR and Edwin Rios from 

the IT team, plaintiff informed them his network and site access had both been 
11 A-2761-21

disrupted. Nigro advised this was done intentionally as a "precaution." Plaintiff 

assumed this meant Merck considered him a security threat. 

During the March 17, 2017 meeting, Nigro asked plaintiff questions 

regarding the investigation into plaintiff's report of suspicious emails from his 

account, requested the name of his attorney, and asked for a copy of the letter 

he sent to Ostroski, which plaintiff advised he would provide. During the 

meeting, plaintiff stated he received similar suspicious emails on January 17, 

2017 and that his Merck-issued cell phone was also missing. Nigro then asked 

plaintiff to see Merck's nurse due to concerns about his fitness for duty in light 

of plaintiff's written statement as well as verbal responses during the meeting. 

Merck's nurse asked plaintiff a series of questions including whether he 

knew his name, the date, and the name of the current president. The nurse asked 

if plaintiff ever thought about bringing weapons to work or hurting his 

coworkers, which he denied. When asked if there was a source of stress in his

life, plaintiff advised the nurse about the Covanta issue but also asserted his 

work performance was meeting expectations. 

Nigro then instructed plaintiff to take his laptop home for the weekend 

and drop it off with Merck's IT team on Monday to be reviewed in connection 

with the investigation of the emails plaintiff received. Later that day, plaintiff 

received an email from Nigro confirming his requests for documents and other 
12 A-2761-21

information during the meeting and advising plaintiff he was on paid 

administrative leave until further notice. Nigro also requested that plaintiff 

refrain from contacting any of his co-workers because of the confidential nature 

of the investigation Merck was undertaking as to the emails he received. 

Instead of providing the documents and information requested by Merck, 

on Saturday, March 18, 2017 plaintiff emailed Nigro stating "I have decided to 

resign. I will return my laptop on Monday." Plaintiff sent another email to 

Nigro on Sunday, March 19 stating: 

Please confirm receipt of my email below and let me

know the next steps. The best way to reach me is via 

email at my personal account (copied on this email). 

I will drop off the laptop tomorrow. Please have your 

forensic team look at it and confirm that there has been 

no suspicious activity in any of my accounts since 

Friday. I will need this confirmation before my 

separation from Merck. 

Regards, 

Kedar 

On Monday, March 20, Nigro sent a responding email confirming he was 

"in receipt of [plaintiff's] resignation email and that Merck has accepted 

[plaintiff's] resignation." 

Later that day, plaintiff sent Nigro an email stating Nigro had 

misunderstood and that plaintiff had decided to resign but he wanted to set a 

potential resignation date after they met in person since he had "carryover 
13 A-2761-21

vacation days" he wanted to use, and he needed the results of the email 

investigation prior to the date of separation. Nigro responded: "We have set 

your resignation effective for Friday March 24. I have confirmed with your 

management that you will be paid out 3 vacation days (1 carryover and 2 

accrued)." Nigro also confirmed that plaintiff would have the results of the IT 

investigation prior to his separation date. 

On March 21, 2017, plaintiff sent an email to Nigro at 10:03 p.m. advising 

he reconsidered his decision and would like to continue his employment with 

Merck. Plaintiff sent another email to Nigro the morning of March 22 at 6:59 

a.m. advising his decision over the weekend to resign was impetuous and he 

wanted to continue his employment after reflecting on the economic impact and 

discussing the issue with his spouse. Plaintiff also offered to withdraw his 

request for an investigation in exchange for being allowed to continue 

employment with Merck. 

Plaintiff sent yet another email to Nigro at 8:19 a.m. the morning of March 

22, 2017, advising he would consider any other position at Merck's Kenilworth 

location. At 10:34 a.m. plaintiff sent the email thread to Nigro's supervisor, Jane 

Palaia, asking for help with what he couched as a "very urgent matter." 

Receiving no response, plaintiff again emailed Nigro and Palaia stating he would 

stop by the office in person on March 23, to discuss the resignation. Nigro 
14 A-2761-21

replied via email that plaintiff was not to come to the office in person, as 

previously discussed, unless directed by HR or security. Nigro's email stated he 

would call plaintiff to discuss further. 

As memorialized in several additional emails sent on March 22, 2017, 

Nigro tried to call plaintiff numerous times at the phone number plaintiff 

provided, but he did not answer. Plaintiff sent multiple emails to Nigro 

questioning the directive that he not come to the work site. Nigro advised 

plaintiff by email on the same date that Merck IT security concluded its 

investigation into plaintiff's claim of suspicious emails being sent from his 

Merck email account. According to IT, the emails were present in the "deleted" 

folder of plaintiff's user account, there was no indication of any intrusion or 

access to plaintiff's Merck email account and no other Merck account had access 

to send email from plaintiff's account. 

Nigro advised in the same email that Merck had elected not to accept 

plaintiff's withdrawal of his resignation and had scheduled March 24, 2017 as 

the separation date. Plaintiff sent a responding email on the same date stating 

only: "Thank you for responding. I am sorry to hear that." 

 Plaintiff alleges Merck thereafter incorrectly informed potential future 

employers that he was terminated. Further, he contends the terminology of 

"PER" used on Merck's job verification report could be read to mean plaintiff 
15 A-2761-21

was terminated for performance reasons and this is affecting his ability to obtain 

another job in his field. Plaintiff is now working multiple jobs as a substitute 

teacher, a paraprofessional, and as an economics expert with Study.com, while 

also volunteering with a business mentoring organization. 

Considering these facts, the trial court concluded on reconsideration that 

plaintiff had not established a prima facie case of unlawful retaliation against 

Merck under the LAD. In its March 29, 2022 written decision, the trial court 

accepted plaintiff's facts as true for purposes of the motion and found plaintiff 

had not shown he was engaged in LAD-protected activity that was known by

Merck. The trial court also found plaintiff did not present any evidence that 

Merck's provided reasons for any employment action were pretextual. 

Specifically, the court found that plaintiff did not show that his complaints were 

improperly addressed or that Merck forced him to resign. 

On appeal, plaintiff argues the court committed reversible error by finding 

he did not demonstrate any LAD-prohibited retaliation. Plaintiff more 

specifically asserts the trial court overlooked the following in making that 

determination: 1) plaintiff filed an internal complaint of national origin 

discrimination with Covanta of which Merck was aware at the time it rejected 

his application for the associate director position; 2) plaintiff put Merck on 

notice of his intention to file a lawsuit against Covanta; and 3) plaintiff filed an 
16 A-2761-21

internal complaint with Merck alleging unlawful retaliation immediately prior 

to its refusal to allow him to rescind his resignation. Plaintiff further asserts the 

trial court erred in finding there was no evidence Merck's defenses were 

pretextual excuses designed to obscure impermissible discrimination. 

Merck submits on appeal that plaintiff cannot prevail on his unlawful 

retaliation claim under the LAD since he resigned voluntarily, and it was not 

unlawful for the employer to refuse to accept plaintiff's withdrawal of his 

resignation. Merck further asserts plaintiff's unlawful retaliation claim is not 

supported by any evidence and that its actions with respect to plaintiff were 

legitimate and not pretext for unlawful discrimination. 

We broadly construe and apply the protections of the LAD to allow for 

the greatest available antidiscrimination impact. Richter v. Oakland Bd. of 

Educ., 246 N.J. 507, 537 (2021). "The LAD's worthy purpose is no less than 

eradication of '"the cancer of discrimination" in our society.'" Ibid. (quoting 

Smith v. Millville Rescue Squad, 225 N.J. 373, 390 (2016) (quoting Nini v. 

Mercer Cnty. Cmty. Coll., 202 N.J. 98, 115 (2010))). In a discrimination claim 

under the LAD, it is the plaintiff who bears the burden to establish a prima facie 

case. Victor v. State, 203 N.J. 383, 408 (2010). To succeed in proving a prima 

facie case, the evidentiary burden is "rather modest." Zive v. Stanley Roberts, 

Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 
17 A-2761-21

F.3d 497, 508 (3d Cir. 1996)). It is sufficient that the plaintiff is able to 

"demonstrate to the court that plaintiff's factual scenario is compatible with 

discriminatory intent – i.e., that discrimination could be a reason for the 

employer's action." Ibid. (emphasis omitted) (quoting Marzano, 91 F.3d at 508). 

[T]he prima facie elements of a retaliation claim under 

the LAD requires plaintiff to demonstrate that: (1)

plaintiff was in a protected class; (2) plaintiff engaged 

in protected activity known to the employer; (3) 

plaintiff was thereafter subjected to an adverse 

employment consequence; and (4) that there is a causal 

link between the protected activity and the adverse

employment consequence. 

[Victor, 203 N.J. at 409.] 

To guide the liberal application of the LAD, New Jersey has adopted the 

"procedural burden-shifting methodology" set forth in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under this burden-shifting 

analysis, 

(1) the plaintiff must come forward with sufficient

evidence to constitute a prima facie case of 

discrimination; (2) the defendant must then show a 

legitimate nondiscriminatory reason for its decision; 

and (3) the plaintiff must then be given the opportunity 

to show that defendant's stated reason was merely a

pretext or discriminatory in its application. 

[Meade v. Twp. of Livingston, 249 N.J. 310, 328 (2021) 

(quoting Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 

320, 331 (2010)).] 
18 A-2761-21

Given that claims under the LAD are to be interpreted broadly and the 

standard for summary judgment requires facts to be viewed in the light most 

favorable to the non-moving party, the trial court's task was not to determine the 

strength of the case, but rather if plaintiff's "allegations, if true, can establish 

that [defendant] violated the LAD." Beneduci v. Graham Curtin, P.A., 476 N.J. 

Super. 73, 82 (App. Div. 2023). "Rather than considering each incident in 

isolation, courts must consider the cumulative effect of the various incidents, 

bearing in mind 'that each successive episode has its predecessors, that the 

impact of the separate incidents may accumulate . . . .'" Lehmann v. Toys 'R' 

Us, Inc., 132 N.J. 587, 607 (1993) (quoting Burns v. McGregor Elec. Indus. Inc., 

955 F.2d 559, 564 (8th Cir. 1992)). 

"[A] person engages in protected activity under the LAD when that person 

opposes any practice rendered unlawful under the LAD." Young v. Hobart W. 

Grp., 385 N.J. Super. 448, 466 (App. Div. 2005); see also Jamison v. Rockaway 

Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). Discrimination 

based upon national origin is specifically prohibited under the LAD. N.J.S.A. 

10:5-12. Plaintiff's assertion that he is of Indian origin was not disputed in the 

motion record. 

Plaintiff contends Merck retaliated against him because it was aware he 

had threatened to institute or had filed a claim against his former employer for 
19 A-2761-21

discrimination. We will accept for the purposes of this appeal, as it appears the 

trial court did, that such actions could constitute protected activity. However, a 

prima facie case of unlawful retaliation requires proof establishing the 

prospective or successor employer had knowledge of the discrimination 

complaint against the prior employer. 

We do not disturb the trial court's finding, based upon the undisputed facts 

in the motion record, that plaintiff has not proffered any evidence establishing 

Merck representatives knew plaintiff's threatened litigation or claim against his 

prior employer, Covanta, was predicated on national origin discrimination. 

Merck did not conduct a background check or prior employment verification 

until after plaintiff was offered and accepted the senior specialist position. 

There is no evidence that Merck knew plaintiff was proceeding with a 

discrimination claim against Covanta before hiring him. The only information 

Covanta provided Merck during the prior employment verification process was 

that plaintiff was involuntarily terminated by Covanta for poor performance. 

Nonetheless, Merck did not seek to withdraw plaintiff's offer of employment 

after receiving this negative information. 

Nor is there evidence Merck became aware of a threatened or actual claim 

against Covanta based upon national origin discrimination during the course of 

plaintiff's employment. Plaintiff asserted during his deposition he was the one 
20 A-2761-21

who told senior Merck executives that he was going to sue Covanta during 

conversations with Gengos in November 2016 and Hawryluk in January 2017. 

However, even assuming all of plaintiff's factual assertions are true, there is no 

evidence plaintiff ever relayed to Merck that his claim against Covanta was 

based upon discrimination. Instead, the motion record establishes plaintiff 

advised Merck generically he would be suing Covanta for providing unfavorable 

references to prospective employers. 

We reject plaintiff's non-specific and unsupported assertion that an 

attorney representing both Merck and Covanta shared information about 

plaintiff's claim against Covanta with Hawryluk, his supervisor at Merck. 

Generalized comments regarding plaintiff's alleged wealth by his co-workers 

and his perception that others were awkward around him do not establish Merck 

was aware that he had complained to Covanta of national origin discrimination. 

Nor is the remainder of the behavior alleged by plaintiff to have occurred 

before and during plaintiff's employment with Merck otherwise actionable under 

the LAD. See Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 25-26 

(2002) (explaining that rude or uncivil behavior and "simple teasing, offhand" 

comments alone do not create a hostile work environment or constitute a claim 

for discrimination). The motion record is also devoid of any evidence Merck 

was aware of plaintiff's threatened or actual discrimination claim against 
21 A-2761-21

Covanta when accepting his resignation or rejecting plaintiff's attempt to rescind 

it. 

We also reject any contention that there is prima facie evidence of adverse 

employment action in the record. Plaintiff does not argue constructive 

discharge. Nor is there any other adverse employment action by way of loss of 

salary alleged. Plaintiff's argument that Merck took adverse employment action 

against him by terminating his employment in retaliation for engaging in 

protected activity under the LAD is belied by plaintiff's voluntary resignation. 

Plaintiff asserts he did not tender his resignation, but instead argues he 

intended to resign at some future point. Plaintiff's contention is contradicted by 

the language of his own resignation and subsequent emails confirming the 

resignation, followed by an attempt to rescind, after reflection on the economic 

and marital impact of his decision. 

We agree the uncontroverted facts in the record establish Merck had 

legitimate, non-discriminatory reasons for its decisions and plaintiff offered no 

evidence of pretext. Under the burden-shifting methodology set forth in 

McDonnell-Douglas, plaintiff must establish Merck's legitimate reasons for its 

actions were merely pretextual excuses to shroud underlying discrimination. 

411 U.S. at 802-04. Plaintiff has not met this burden and summary judgment 

was appropriately granted. 
22 A-2761-21

"To prove pretext . . . a plaintiff must do more than simply show that the 

employer's reason was false; he or she must also demonstrate that the employer 

was motivated by discriminatory intent." Viscik v. Fowler Equip. Co., 173 N.J. 

1, 14 (2002). Plaintiff argues in generalities that the trial court improperly found 

he failed to raise an issue as to pretext by asserting: 1) Merck's "proffered 

reasons for refusing to accept [plaintiff]'s request to rescind his resignation were 

inconsistent, implausible, and not worthy of credence"; 2) the "temporal 

proximity" between the "protected activity and the adverse employment action" 

demonstrates a nexus; and 3) plaintiff was "subjected to significant ongoing 

antagonism" due to his protected activities. However, plaintiff has failed to 

point to any evidence in the motion record to support these broad assertions. 

Nor has plaintiff established any Merck representative took any 

employment action against him based on a discriminatory intent. The motion 

record establishes Merck used an internal process to determine plaintiff was 

appropriate for the senior specialist position, rather than the associate director 

job which was based in part on his performance during the interview. 

Plaintiff's unlawful termination claim is predicated in part on Merck's 

refusal to continue plaintiff's employment despite the post-acceptance 

withdrawal of his resignation. Plaintiff does not supply any statute or case law 
23 A-2761-21

demonstrating a private employer is required to reinstate at-will employment 

after an employee attempts to rescind their resignation. 

An employer who accepts an unequivocal notice of 

resignation from an employee is entitled to rely upon it, 

to the extent of preparing in one manner or another for 

the employee's absence, unless, of course, the employer 

chooses to return to status quo by rehiring the 

employee, or accepting a retraction of the notice. 

[Nicholas v. Bd. of Rev., Dep't of Labor & Indus., 171 

N.J. Super. 36, 38 (App. Div. 1979) (quoting Guy 

Gannett Pub. Co. v. Me. Emp. Sec. Comm'n, 317 A.2d 

183 (Me. 1974)).] 

"Absent a contract providing otherwise, employment in New Jersey is atwill." Lapidoth v. Telcordia Techs., Inc., 420 N.J. Super. 411, 420-21 (App. 

Div. 2011). An employer of an at-will employee has the unfettered right to 

continue or cease employment for any reason or no reason at all, so long as the 

actions do not violate the LAD. Id. at 421. Likewise, though an employer of an 

at-will employee does not have to accept the rescission or retraction of a 

resignation, the refusal cannot be predicated on a discriminatory intent. See 

Prager v. Joyce Honda, Inc., 447 N.J. Super. 124 (App. Div. 2016). 

Thus, as an at-will employee, plaintiff had the right to resign and Merck 

had the corollary right to accept plaintiff's resignation and refuse to allow him

to reinstate his own employment by withdrawing the resignation, subject to the 

LAD. Bernard v. IMI Sys., Inc., 131 N.J. 91, 105-06 (1993). We find no 
24 A-2761-21

evidence in the record that Merck's refusal to accept plaintiff's withdrawal of his 

resignation was improperly motivated by a discriminatory intent. 

The undisputed facts in the record establish that plaintiff's statements in a 

memorandum and the subsequent interview on March 17, 2017, constituted 

legitimate, non-discriminatory reasons for requiring a medical evaluation to 

determine plaintiff's fitness for continued employment at Merck and to place 

him on paid administrative leave. Merck's assertion that it was investigating all 

of plaintiff's claims when he voluntarily resigned is also unrebutted and is 

supported by the record. Further investigation of plaintiff's claims of suspicious 

emails established they were sent by plaintiff's computer to which no other 

Merck employee had access. 

Thus, under McDonnell-Douglas, the burden shifted to plaintiff to show 

that the rationale underpinning Merck's employment decisions was not 

legitimate and, instead, was merely pretextual. Plaintiff did not offer any 

evidence as to why Merck's explanations were merely pretext and, instead, were

taken in furtherance of an unlawful discriminatory intent. 

The competent evidential materials in the motion record also do not 

establish a prima facie unlawful retaliation claim under the LAD for any postemployment actions taken by Merck. Plaintiff's claim that Merck incorrectly 

advised subsequent prospective employers he had been terminated is not 
25 A-2761-21

supported by the motion record. Plaintiff alleges the report that Merck provided 

to potential future employers upon request displays a separation code of "TER," 

which plaintiff claims equates to a proclamation that he was terminated, and a 

separation description of "PER," which plaintiff argues could be interpreted as 

performance-related. Not only is the record devoid of any proofs as to the 

meaning of the codes on the report beyond plaintiff's speculation, but plaintiff 

has failed to supply any evidence that his job search has been hindered by 

dissemination of the report beyond his own unsupported conjecture. 

To the extent we have not addressed any of plaintiff's remaining 

arguments, we conclude they lack sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.