GARY MCNICHOL VS. ROUTE ONE CORP. (L-4514-17, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2374-19

GARY McNICHOL,

Plaintiff-Appellant,

v.

ROUTE ONE CORP., d/b/a
SANSONE AUTO MALL,
a/k/a GENERAL TOYOTA, INC.,
SANSONE KIA, DAVID
SALSIDO, as agent/servant/
employee of ROUTE ONE CORP.,
d/b/a SANSONE AUTO MALL,
a/k/a GENERAL TOYOTA, INC.,
SANSONE KIA, and DAVID
SALSIDO, individually,

Defendants-Respondents.
_____________________________

Argued June 8, 2021 – Decided June 24, 2021

Before Judges Yannotti, Haas, and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-4514-17.
 Mariesa C. Iulo argued the cause for appellant (Law
Offices of Kenneth D. Iulo, attorney; Mariesa C. Iulo,
on the brief).

Joseph C. DeBlasio argued the cause for respondents
(Jackson Lewis, PC, attorneys; Joseph C. DeBlasio and
R. Shane Kagan, of counsel and on the brief).

PER CURIAM

Plaintiff Gary McNichol appeals from the Law Division's January 10,

2020 order granting summary judgment and dismissing his claim of wrongful

termination based upon disability discrimination in violation of the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -59, against defendants Route One

Corporation, d/b/a Sansone Auto Mall (Sansone) and its vice-president, David

Salsido (collectively defendants). We affirm.

We derive the following material facts from the evidence submitted by the

parties in support of, and in opposition to, defendants' summary judgment

motion, viewed in a light most favorable to plaintiff, the non-moving party.

Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

Sansone operates three retail car dealerships: Route One Toyota, Route

One Hyundai, and Route One Kia. In March 2011, Sansone hired plaintiff as a

sales manager at the Toyota dealership. As a manager, plaintiff's compensation

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was based solely on the commissions he earned from selling vehicles. Like other

similarly-situated employees, plaintiff received a weekly advance on these

commissions, which was referred to as his "draw." When plaintiff's draws in

any given month exceeded the amount of commissions he actually earned, he

was responsible for the shortfall, either by paying Sansone back the difference

or by deductions taken from his future commissions. In his deposition, plaintiff

testified this arrangement was standard practice in the industry and that it would

be fair to terminate an employee who had a consistent shortfall.

When he began working at the Toyota dealership, plaintiff's draw was

$2000 per week. At the end of 2011, plaintiff transferred to the Hyundai

dealership, where he received an increased weekly draw of $2200. His new title

was assistant sales manager.

By January 2014, plaintiff owed Sansone $6095.95 in unearned draws.

Sansone agreed to allow plaintiff to pay it $500 per month until he was able to

reduce the balance due to $2000. At that point, Sansone "wrote off" plaintiff's

remaining debt.

In March 2015, plaintiff asked Salsido to increase his weekly draw to

$2800. Plaintiff told Salsido he had received a job offer from another dealership

that was closer to his home and could only stay if Sansone increased his draw.

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Salsido agreed to this request, and plaintiff's draw was now the highest in the

company.

However, plaintiff was unable to earn sufficient commissions to cover the

amount of his new weekly draw. Within two months, plaintiff already owed

Sansone $14,530.68. By June 2015, plaintiff's debt had increased to $24,278.80.

In an attempt to help plaintiff meet his financial obligations, Sansone

increased plaintiff's commission rate from 4.0% to 5.5%. However, plaintiff

still owed Sansone $22,661.62 in unearned draws at the end of 2015.

Nevertheless, Sansone again wrote off this debt, and plaintiff began 2016 with

a clean slate.

By April 2016, plaintiff was almost $9000 in arrears. On May 1, 2016,

Sansone transferred plaintiff back to the Toyota dealership. Plaintiff had no

objection to this transfer so long as his weekly draw remained at $2800. Sansone

also wrote off $2500 of plaintiff's 2016 shortfall.

On June 17, 2016, plaintiff was involved in a car accident and sustained

injuries to his left shoulder, spine, and one of his ribs. He continued to work

following the accident.

In late July or early August 2016, plaintiff asked for a transfer to the Kia

dealership, where he could work with his prior finance manager. Sansone

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granted plaintiff's request even though there were already two other sales

managers at this dealership.

Over the next two months, the sales at the Kia dealership fell and, in

August 2016, only thirty-five vehicles were sold. By the end of September,

plaintiff's unearned draws again totaled nearly $9000, and only thirty-seven

vehicles were sold that month. In his testimony, plaintiff agreed that his

performance demonstrated "a continuing pattern of shortfalls."

Salsido testified during his deposition that on October 14, 2016, he

decided to terminate plaintiff's employment. Salsido explained that the Kia

dealership could not support three sales managers, all three of whom were taking

a percentage commission on each vehicle sold. Salsido chose plaintiff for

termination based upon his consistently poor performance over the prior two

years, which placed an additional financial burden on the company due to his

unearned draws.

Salsido informed Sansone's president of this decision, as well as plaintiff's

immediate supervisor. Both agreed that Salsido should fire plaintiff as soon as

plaintiff returned from a pre-scheduled one-week vacation that began on

October 17, 2016.

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 Although plaintiff was not due to return from his vacation until October

24, Salsido learned that plaintiff would be coming to work on October 21. He

planned to meet with plaintiff that day to tell him that his employment would be

terminated.

However, when plaintiff came to the dealership, he immediately went to

see Sansone's human resources director (the director), and told her that he

needed to take two or three weeks off from work because he was going to have

shoulder surgery on October 24. This was the first the director had heard of th e

surgery, and Salsido also had no prior knowledge of it. The director also did

not know that Salsido was waiting to meet with plaintiff so he could terminate

his employment.

The director gave plaintiff the required paperwork to apply for a disability

leave, and plaintiff left the building. Around this time, Salsido learned that

plaintiff was at the dealership and went to speak to him. However, by the time

Salsido got to the director's office, plaintiff was already gone. Salsido then

called plaintiff's cell phone and let him know that he was being fired.

Plaintiff subsequently filed a three-count complaint against Sansone and

Salsido. Count one involved his LAD claim for wrongful discharge based on

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his disability. 1 Plaintiff alleged that he was discharged because he sought a

medical leave of absence. At his deposition, however, plaintiff admitted he did

not know the reason he was fired.

After plaintiff's termination, Sansone did not hire anyone to replace him

as a sales manager at the Kia dealership. Sales at that dealership began to

dramatically improve in November 2016, the month after plaintiff was fired,

even though there were now only two sales managers.

After the completion of discovery, defendants moved for summary

judgment and plaintiff opposed the motion. Following oral argument, the trial

judge found that plaintiff did not establish a prima facie case of wrongful

termination based on disability discrimination. The judge further found that

even if plaintiff were able to establish a prima facie case, he had not produced

any evidence to rebut defendants' articulated nondiscriminatory reasons for his

termination. This appeal followed.

On appeal, plaintiff asserts that he established a prima facie case of

disability discrimination and that defendants' reasons for terminating him were

a pretext for unlawful discrimination. We disagree.

1
At oral argument on defendants' summary judgment motion, plaintiff
voluntarily dismissed the remaining two counts of his complaint.
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 Our review of a trial court's grant of summary judgment is de novo,

applying the same legal standard as the trial court. RSI Bank v. Providence Mut.

Fire Ins. Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22,

38 (2014)). Under that standard, summary judgment will be granted when "the

competent evidential materials submitted by the parties," viewed in the light

most favorable to the non-moving party, show that there are no "genuine issues

of material fact" and that "the moving party is entitled to summary judgment as

a matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)

(quoting Bhagat, 217 N.J. at 38); see also R. 4:46-2(c).

"An issue of material fact is 'genuine only if, considering the burden of

persuasion at trial, the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving party, would

require submission of the issue to the trier of fact.'" Grande, 230 N.J. at 24

(quoting Bhagat, 217 N.J. at 38). We owe no special deference to the motion

judge's legal analysis. RSI Bank, 234 N.J. at 472 (quoting Templo Fuente De

Vida Corp. v. Nat'l Union Fire Ins. Co., 214 N.J. 189, 199 (2016)).

The LAD prohibits employment discrimination based on an employee's

disability. In pertinent part, N.J.S.A. 10:5-12(a) provides:

It shall be an unlawful employment practice, or, as the
case may be, an unlawful discrimination . . . [f]or an

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 employer, because of the . . . disability . . . of any
individual . . . to discharge . . . from employment such
individual or to discriminate against such individual in
compensation or in terms, conditions or privileges of
employment.

"All LAD claims are evaluated in accordance with the United States

Supreme Court's burden shifting" methodology established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Battaglia v. United

Parcel Serv., Inc., 214 N.J. 518, 546 (2013). A plaintiff claiming disability

discrimination must first present evidence establishing a prima facie case of the

alleged discriminatory conduct. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447

(2005).

To successfully assert a prima facie claim of discriminatory discharge

based on disability, a plaintiff must prove that he:

(1) belongs to a protected class; (2) applied for or held
a position for which he . . . was objectively qualified;
(3) was not hired or was terminated from that position;
and that (4) the employer sought to, or did fill the
position with a similarly-qualified person. The
establishment of a prima facie case gives rise to a
presumption of discrimination.

[Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14 (2002).]

If a plaintiff establishes a prima facie case, creating an inference of

discrimination, the burden of production then shifts to the defendant to

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"articulate a legitimate, nondiscriminatory reason for the employer's action."

Zive, 182 N.J. at 449 (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596

(1988)). Where the defendant does so, "the burden of production shifts back to

the employee to prove by a preponderance of the evidence that the reason

articulated by the employer was merely a pretext for discrimination and not the

true reason for the employment decision." Ibid.

"To prove pretext, a plaintiff may not simply show that the employer's

reason was false but must also demonstrate that the employer was motivated by

discriminatory intent." Ibid. (citing Viscik, 173 N.J. at 14). At all times,

however, the burden of persuasion that the employer engaged in intentional

discrimination remains with the employee. Clowes, 109 N.J. at 596.

The employer is entitled to summary judgment if, after proffering a

nondiscriminatory reason for its decision, plaintiff cannot "point to some

evidence, direct or circumstantial, from which a factfinder could reasonably

either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe

that an invidious discriminatory reason was more likely than not a motivating or

determinative cause of the employer's action." Zive, 182 N.J. at 455-56 (quoting

Fuentes v. Perskie, 32 F.3d 759, 769 (3d Cir. 1994)).

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 Applying these standards, and considering the facts in the light most

favorable to plaintiff, we are satisfied that the trial judge properly granted

summary judgment to defendants. Therefore, we affirm the judge's

determination and add the following brief comments.

Defendants concede on appeal that plaintiff presented sufficient evidence

to establish the first three prongs of a prima facie case of disability

discrimination. Plaintiff needed to be absent from work for two or three weeks

because he was going to undergo shoulder surgery. This appears to be sufficient

to place him in a class protected by the LAD under the first part of the Viscik

test. Although defendant was certainly performing poorly as a sales manager,

he apparently met the basic requirements for the position, thereby satisfying the

second prong. The employer terminated plaintiff's employment and, therefore,

the third factor of the test was also met.

However, defendants never sought to replace plaintiff after his

termination and the sales manager position remained unfilled throughout the

litigation. Accordingly, plaintiff did not satisfy the fourth prong of the Viscik

test. Because plaintiff was unable to establish a prima facie case of employment

discrimination, the judge properly granted defendants' motion for summary

judgment.

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 However, even if we assume that plaintiff succeeded in establishing his

prima facie case, defendants articulated valid, nondiscriminatory reasons for the

decision to fire plaintiff. See Zive, 182 N.J. at 449 (citing Clowes, 109 N.J. at

596). Plaintiff's work performance had been getting progressively worse since

2014. He was consistently overdrawn on his commissions and Sansone

ultimately had to "write off" over $25,000 of plaintiff's debt.

Although Sansone increased plaintiff's commission rate and transferred

plaintiff to his preferred dealership, he continued to chronically underperform.

When the Kia dealership suffered through two dreadfully unsuccessful months

in August and September 2016 under plaintiff's management, Salsido decided it

was time to terminate him.

Having articulated its nondiscriminatory motive for termination, the

burden shifted back to plaintiff to prove by a preponderance of the evidence that

defendants' stated reasons were merely pretext for their true discriminatory

intent. Plaintiff failed to meet this burden. He did not point to any evidence in

the record that could plausibly lead to an inference of disability discrimination.

Indeed, plaintiff admitted he did not know the reason for his termination.

Moreover, nothing in the record indicates that Salsido was even aware that

plaintiff had asked for time off to undergo surgery when he fired him. Plaintiff

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worked at the Kia dealership following his car accident, and was only going to

be absent from work for two to three weeks. Plaintiff did not even raise the

issue of his alleged disability until after he was terminated.

Under these undisputed facts, we are satisfied that no reasonable jury

could conclude that defendants' actions to terminate an unproductive employee

were a pretext for disability discrimination. We therefore affirm the trial judge's

summary judgment order.

Affirmed.

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