Gimello v. Agency Rent-A-Car Systems, Inc.

• Decision Date: 02 August 1991
• Docket Number: RENT-A-CAR
• Citation: 594 A.2d 264,250 N.J.Super. 338
• Parties: , 57 Empl. Prac. Dec. P 40,959, 2 A.D. Cases 1215, 4 NDLR P 222 Joseph R. GIMELLO, Complainant-Respondent, v. AGENCYSYSTEMS, INC., Rick Brindisi and Vincent Garrenton, Respondents-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 338

250 N.J.Super. 338

594 A.2d 264, 57 Empl. Prac. Dec. P

40,959, 2 A.D. Cases 1215,

4 NDLR P 222

Joseph R. GIMELLO, Complainant-Respondent, v. AGENCY RENT-A-CAR SYSTEMS, INC., Rick Brindisi and Vincent Garrenton, Respondents-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 20, 1991.

Decided Aug. 2, 1991.

Maxine H. Neuhauser, for respondent-appellant Agency Rent-A-Car (Epstein, Becker & Green, Newark, and Mackevich & Burke, Cranford, attorneys; M. Elaine Jacoby, Newark, and James E. Mackevich, Cranford, of counsel; Maxine H. Neuhauser, on the brief, Newark.

Joel S. Selikoff and Steven R. Cohen, for complainant-respondent Joseph R. Gimello (Selikoff & Cohen, attorneys; Joel S. Selikoff and Steven R. Cohen, of counsel and on the brief), Mount Laurel.

Lynn B. Norcia, Deputy Atty. Gen., for respondent Div. of Civil Rights (Robert J. Del Tufo, Atty. Gen. of N.J., attorney; Andrea M. Silkowitz, Asst. Atty. Gen., of counsel; Lynn B. Norcia on the brief).

Before Judges KING, LONG and R.S. COHEN.

The opinion of the court was delivered by

KING, P.J.A.D.

In this case the complainant, Joseph Gimello, claimed that he was a victim of a discriminatory discharge from employment. He claimed that he was fired because of his obesity, a condition unrelated to his ability to do his job as office manager for a car rental agency. His employer claimed that he was terminated because of inadequate job performance. The Director of the Division of Civil Rights, confirming the findings of the administrative law judge, concluded that the employer's reason for termination was pretextual, not bona fide, and that Gimello really was fired because of his actual or perceived obesity and not for any legitimate business reason. The employer now appeals this decision by the Director that Gimello was a victim of discrimination entitled to relief under our Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD or Law). We conclude that the record supports the decision of the Director. We affirm the adjudication of discrimination. We modify the damage award.

I

We summarize the highlights of the facts developed at the hearing in the Division of Civil Rights before Administrative Law Judge Duncan. Employer, Agency Rent-A-Car Systems, Inc. (Agency or employer), is a rental car agency with a principal office in Solon, Ohio. During 1978 and 1979, when Gimello started with Agency, it had about 130 offices throughout the country. At the time of the initial hearing in 1988, Agency had 493 offices nationally, including about 20 in New Jersey. Each office employed between two and five employees divided into two positions, office managers and management trainees. The job description of a manager trainee in the employer's manual states:

This is a two fold position; to deliver, prep and pick up rental units for our valued customers and to become actively involved in training and preparation for the management position.

The job description of an office manager states:

The office manager is responsible for organizing and coordinating the daily activities within their respective rental offices in accordance with standard company operating procedure, while working to expand the office through cooperative efforts with the sales representatives.

In addition, the office manager is responsible for the training and development of the manager trainee.

The then-district manager Donald Mogar hired Gimello as a management trainee in Agency's Camden office on January 10, 1978. The two had known each other before the hiring because Mogar was friendly with Gimello's younger brother. Gimello had stated on his employment application that he was 5'8"' and 225 pounds. One month later on February 16, 1978 Agency promoted Gimello to office manager in the Trenton office. At first no management trainees worked at the Trenton office but soon one was assigned to Gimello's supervision. His salary increased from $8,300 annually as a management trainee to $734 per month ($8,808 annually) as an office manager. Gimello received several raises in the following months. On April 16, 1978 Agency raised Gimello's salary to $776 per month ($9,312 annually); on June 1, 1978 to $818 per month ($9,816 annually); on August 16, 1978 to $860 per month ($10,320 annually); on November 16, 1978 to $900 per month ($10,800 annually), and on May 16, 1979 to $942 per month ($11,304 annually). The then-district manager Gary Gradl recommended the raises and commented favorably on Gimello's performance.

While Gimello worked at the Trenton office he also received several bonuses for maintaining high levels of sales of "Deductible Protection Coverage" (DPC). Agency's manual describes DPC as "extremely important" and "beneficial to Agency." Employees sell the coverage in connection with car insurance, explaining that the coverage "eliminates the $750 deductible on the physical damage coverage." The manual states that DPC costs the customer a flat fee of $3.50 a day plus tax. Offices attaining 55% or greater monthly DPC sales received bonuses from Agency. Gradl noted Gimello's high DPC sales percentages on the form reflecting Gimello's raises. Interoffice memoranda from James Thatcher, Agency's Eastern Regional Director, congratulated the offices for DPC sales and bonuses. The memos also contained handwritten personal notes of congratulations to Gimello from Thatcher. In June 1978 Gimello's Trenton office had 91.9% DPC sales and received a memo from Thatcher with the office's percentage circled and "Joe! Great" written in the margin. On the memo showing the office's 100% sales quota "average through February 13, 1979" DPC sales, Thatcher wrote: "Joe: OUTSTANDING ... WHAT ELSE CAN I SAY. THANKS. JIM T." In March 1979, Gimello's office showed 102.5% (apparently a ratio of sales to sales quota) DPC sales and Thatcher wrote:

JOE: THIS IS A "COMPANY" ALL TIME RECORD--INCREDIBLE JOB. JIM T.

The memos from Thatcher for both February and March DPC sales noted that all regional offices qualified for the bonuses by achieving at least 55% DPC sales. On Gimello's memo reflecting March sales Thatcher circled the Trenton office's percentage and wrote "JOE!" next to the figure. The last memo reflects DPC sales through mid-April when Gimello's office showed DPC sales of 102.9%.

On June 11, 1979 Agency transferred Gimello to the Cherry Hill office. Gimello received a salary increase to $968 per month, or $11,616 annually. At the Cherry Hill office Gimello supervised three management trainees and a larger volume of business than at the Trenton office. Gimello's wife also worked at Agency's Cherry Hill office part-time starting in 1979. On November 1, 1979 Gimello received another raise, bringing his yearly salary to $1,008 per month or $12,100 annually. In January 1980 Agency instituted a program it called the "14/14 Incentive Bonus Plan" in which office managers would receive a $14,000 base salary plus monthly bonuses equalling 7% of the office's monthly net income. While Agency's memo stated that "only the most competent and experienced office managers will be offered participation in the plan[,]" its memo approving the salary changes indicated that all office managers in the Eastern Region participated in the new compensation program. Gimello's only truly bad month was February 1980 when he received just a 32cents bonus. That figure seems to be an aberration, however, since in all other months he earned at least a few hundred dollars and once up to about $1,200.

Agency also sent "Commendation Awards" to "those offices that have exceeded the highest level of competence in their respective markets." Gimello's Cherry Hill office received eight commendations from late 1979 through early 1983. Gimello also pointed to other letters from Agency's upper management in support of his performance as office manager. Sam Frankino, then chairman of Agency's board, commended Gimello and Mogar on "the fine performance of the Cherry Hill Office" in a May 15, 1981 letter. Another letter, dated August 9, 1982, accompanied a bonus check and complimented Gimello on the Cherry Hill office's "high performance."

The district manager for the territory including the Cherry Hill office managed the district from the Cherry Hill office location. Between June 1979 and June 1983 three district managers supervised Gimello: Lynn Tobiason (from June 1979 to sometime shortly after); Anthony Giannone (to October 1979); and Donald Mogar (to June 1983 when Gimello was fired). The only comment by Tobiason apparent in the record is in her recommendation of a raise for Gimello when he transferred from Trenton to Cherry Hill. Giannone complimented Gimello on his performance in September 1979 on a form reflecting one of Gimello's raises.

The record includes two evaluations of Gimello's performance compiled by Mogar. The first, dated December 8, 1981, described Gimello as a "good" office manager, but conditioned a recommendation for promotion on Gimello's taking a "course in employee/public relations." The second evaluation, dated May 1, 1982, contained more specific information: Mogar noted that Gimello should soften his telephone skills with customers and should try to manage dispatching and scheduling more efficiently. Mogar again recommended a course in "employee/public relations" but urged promotion more emphatically than he did in his December evaluation. Mogar explained at the hearing that he believed the course would improve Gimello's public speaking skills rather than his skills in dealing with employees. He testified that since a promotion to district manager would give Gimello more opportunities to give speeches and go on "sales calls," the course would be an "asset."

Agency conducted several "audits" of the Cherry Hill office while Gimello was the office manager. These "audits" apparently are spot-checks of the office's cash, paperwork and procedures performed at two to five-month intervals from January...