JAMES HARRIS v. READY PAC FLORENCE PARTNERSHIP (2014)

Appellant James C. Harris was employed by respondent Ready Pac Florence Partnership (Ready Pac) from June 1998 until his employment was terminated in May 2010.   He filed a complaint with the New Jersey Division on Civil Rights (the Division), alleging that Ready Pac had discriminated against him based on his race, African–American, and age, sixty-five, in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5–1 to –42.   Harris contended he was subjected to suspension and termination for conduct that did not result in such consequences for similarly situated employees who were younger and not African–American.

Harris was fifty-four years old when he was hired as a maintenance mechanic in June 1998.   He was promoted to the position of maintenance crew leader in September 2004, when he was approximately sixty years old, and held that position until his employment was terminated.

As part of its investigation, the Division reviewed Ready Pac's written attendance guidelines, which establish a progressive disciplinary policy for attendance violations.   The guidelines establish a point system that governs violations and sets forth the discipline for each infraction.   For example, absence results in one point and lateness results in one-half point.   Each point expires after six months.   If an employee accumulates four points in any six-month period, he or she is placed on progressive discipline and, for each additional point, discipline is enhanced.   If six points are accumulated, a three-day suspension is assessed;  the employee is terminated after seven points.

Employees are required to call in at least one hour before the start of their shift if they cannot begin their shift as scheduled.   A failure to call in as required is termed a “no call/no show” violation.   Because Ready Pac's business of processing perishable produce is time-sensitive, it considers such violations “problematic.”   The penalty for such a violation is “1 point and immediate disciplinary action up to and including suspension” without regard to the number of points the employee has accumulated.

Harris received a written disciplinary notice for a “no call/no show” violation occurring on May 17, 2010.   He did not dispute that he was absent from work that day, but submitted that he had called in, approximately one and one-half hours into the shift.   Because this call was not made one hour prior to the shift, it constituted a violation of the written attendance policy.   At the time, Harris had 2.5 attendance points.   He received an additional point and a one-day suspension for the “no call/no show” violation.

Harris supplied the names of two employee who were similarly situated and who had not been suspended for similar conduct.¹  After reviewing the disciplinary history of the identified employees and other, non-African-American, younger employees who were suspended for similar conduct, the Division found no evidence of race or age discrimination in Harris's suspension.

Ready Pac also has a policy regarding the handling of work equipment and hygiene, the Good Manufacturing Practices (GMP).  The Division described these rules as designed “to reduce the risk of contaminating [its] food products during receiving, processing, storage and shipment.”   The findings of the Division state, in pertinent part:

[T]he GMP requires that employees never leave work equipment on food processing machines or on the ground.   The investigation disclosed that [Harris] was warned and disciplined for leaving tools or other objects in prohibited food processing areas on April 3, 2010 and April 9, 2010, and was discharged based on a third incident of doing so on May 6, 2010.

There were handwritten notes from other employees to support the April 3 charge.   However, Harris denied he left anything on the machine that date and noted that his supervisors told him he was responsible for any objects left behind, even by others, because he was the crew leader.   Harris acknowledged leaving tools behind on April 9. He received a final warning based upon these two incidents.   Harris also admits he left his tools on a machine on May 6, 2010.   Following this last incident, his employment was terminated.

Although Harris contends that other employees engaged in similar conduct and were not discharged, he provided no specific information to the Division to support this allegation.   Moreover, the Division's investigation revealed that during the period from July 2009 to January 2011, Ready Pac had discharged eight employees for GMP violations.   Of those employees, three were African–American;  three were Indian;  and two were Caucasian.   Their ages were 23, 35, 36, 49, 54, 58, 63, and 66.

The Division concluded that there was insufficient evidence to support Harris's claims of age and race discrimination and closed the case as lacking probable cause.   In his appeal, Harris argues that he was the victim of racial and age discrimination when his employment was terminated and also argues that he was the victim of retaliatory discrimination.

Our review of a final decision of an administrative agency is limited.   In the absence of “a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record,” the decision will be sustained.   In re Herrmann, 192 N.J. 19, 27–28 (2007).   The record here supplies fair support for the Division's conclusion that the allegations made in Harris's complaint lacked probable cause.

In his appellate brief, however, Harris has advanced factual contentions and a new legal argument that were not presented to the Division.   Specifically, he alleges that his supervisors referred to him as the “old black nigger” and that one had stated, “I'm gonna get rid of that old Nigger.”   He also argues that he had established the prima facie elements of a retaliation claim under the LAD.² Because these allegations and argument are raised for the first time on appeal, they are not properly before us.  State v. Robinson, 200 N.J. 1, 20 (2009);  Nieder v. Royal Indem.   Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

FOOTNOTES

FN1. Harris later denied supplying these names, and has not identified any other employees to support his claim of disparate treatment..  FN1. Harris later denied supplying these names, and has not identified any other employees to support his claim of disparate treatment.

FN2. To show that he engaged in the requisite “protected activity” requires proof appellant “has opposed any practices or acts forbidden under this act or ․ has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.”  N.J.S.A. 10:5–12(d).  We note that even if the factual allegations regarding a cause of action for retaliation under the LAD — which are unsupported by any reference to the record — were proven, they are insufficient to show Harris engaged in such protected activity..  FN2. To show that he engaged in the requisite “protected activity” requires proof appellant “has opposed any practices or acts forbidden under this act or ․ has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.”  N.J.S.A. 10:5–12(d).  We note that even if the factual allegations regarding a cause of action for retaliation under the LAD — which are unsupported by any reference to the record — were proven, they are insufficient to show Harris engaged in such protected activity.

PER CURIAM