Member Owned Cooperative Not Liable, As a Joint Employer, For Employee’s Age Discrimination Suit Against One Member of the Cooperative

Dorrity v. Wakefern Food Corporation, et al - Superior Court of New Jersey, Appellate Division

Facts:  Gina Dorrity ("Dorrity") worked at a pair of ShopRite grocery stores that were owned by Sunrise Supermarkets, Inc. ("Sunrise"), a member of Wakefern Food Corporation ("Wakefern"), a grocery cooperative.  When she applied for a position, the form she completed had the following heading:  "APPLICATION FOR EMPLOYMENT WAKEFERN FOOD CORPORATOIN SHOP-RITE SUPERMARKETS".  After Dorrity submitted her application, she was interviewed by a Sunrise store manager who offered her a job.  Dorrity did not interview with a Wakefern employee, nor was there any evidence that Wakefern participated in the hiring decision.

After working for some time as a cashier, Dorrity was transferred to another store and received a promotion (which included handling some HR matters.)  Wakefern had no involvement in the decision to transfer Dorrity or promote her.  Dorrity received awards from her work; none of which were awarded by Wakefern.  Dorrity's checks listed "Sunrise SR of Parsippany LLC" and had no mention of Wakefern.  Dorrity did, however, exchange emails with Wakefern employees about HR issues or technology issues.  Wakefern tracked these communications.

In April of 2015, Dorrity sought a position as IT supervisor, although the record did not show that she had the necessary qualifications for the position.  Dorrity apparently could not remember applying for any other IT positions, did not know the meaning of several of the job's requirements, and could not remember taking computer courses since graduating college.  Further, there was no evidence that Wakefern had any involvement in the IT supervisor selection process.  Nevertheless, when Dorrity found out she did not get the position, she said "it was discriminatory" and she did not get the position because she "was older."

In February of 2016, while on a lunch break, Dorrity spoke with a customer.  When her break ended, Dorrity punched back in and continued speaking with the customer.  After the conversation ended, Dorrity failed to complete her work before the end of her shift and was required to have her supervisor override the time clock.  Later that day, Dorrity was informed she was suspended pending termination for "stealing time."  On February 25, 2016, in a meeting with her union and Sunrise store managers, Dorrity expressed her belief that she was treated unfairly and she was simply providing good customer service.  At the end of the meeting, Dorrity received her termination paperwork and was replaced with an employee twenty years younger.  There was no evidence that Wakefern participated in the termination.  In May, Dorrity filed suit against Sunrise and Wakefern, alleging age discrimination.  An amended complaint was filed asserting fraudulent concealment and spoliation of evidence against Wakefern.  Dorrity's claims against Wakefern were dismissed via summary judgment in favor of Wakefern; Dorrity settled with Sunrise.  The subsequent appeal of the summary judgment ruling in favor of Wakerfern followed.

Holding:  (Note, this case brief does not analyze the spoliation portion of the appeal.)

The Court recognized that a claim for failure to investigate and take remedial measures arises when an employer or supervisor has actual knowledge of the discrimination and do not promptly act to stop it.  In this case, however, the Court pointed out that Dorrity could not establish that Wakefern had actual knowledge.  When Dorrity did complain after not receiving the IT promotion, the report went up the flag pole with her superiors.  However, those superiors did not work for Wakefern; rather they both worked for Sunrise.  The Court held that the fact that Dorrity alleged discrimination to Sunrise employees did not impute that knowledge to Wakefern.

In fact, at the meeting Dorrity had with her union and Sunrise store managers, she did not mention discrimination.  As prior caselaw has held, a general complaint of unfair treatment does not provide notice of a complaint of discrimination.  Consequently, the Court held that based upon the undisputed evidence in the record, Wakefern could not be held to have knowledge of Dorrity’s complaints of discrimination.

As for the other arguments from Dorrity that attempted to establish Wakefern’s liability, the Court quickly did away with those.  Of note, the Court held that Dorrity’s claim that the relationship between Wakefern and Sunrise warranted piercing “the corporate veil” were unfounded.  The piercing “the corporate veil” did not apply here, according to the Court, as Wakefern was not a parent company of Sunrise.  Rather Sunrise owned Wakefern.  In regard to Dorrity’s claim that she was jointly employed by Wakefern, the Court was unswayed.  The evidence established that Dorrity worked for Sunrise, set her work schedule, assigned her job duties, and paid her salary and benefits.  Wakefern had no input as to Sunrises’s decision to suspend and then terminate Dorrity’s employment. 

Judgment:  The Superior Court of New Jersey, Appellate Division upheld summary judgment in favor of Wakefern on the grounds that the former employee could not establish that Wakefern had knowledge of her complaints of discrimination nor was there evidence that Wakefern was a joint employer, thus defeating any claims that Dorrity had as to why Wakefern would be a liable party to her discrimination claims.

The Takeaway:  The Court’s opinion here was rather concise and to the point, but well worth a read.  I point readers to the Court’s recognition of how directly involved Sunrise (and conversely how little involvement Wakefern had) with Dorrity’s employment.  Had Dorrity not settled with Sunrise and there had this been a dispute about Sunrise’s knowledge of Dorrity’s discrimination claims (and subsequent alleged failure to act claim), I think the Court’s finding certainly could have gone a different direction.  However, couple that with the fact that there was insufficient evidence to establish joint employer liability simply left Dorrity without a viable argument on appeal.

Majority Opinion Judge:  Per curiam

Date:  January 15, 2020

Opinion:  https://law.justia.com/cases/new-jersey/appellate-division-unpublished/2020/a0218-18.html