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Week Ending 11/7/14: Lemeshow v. PSE&G

Alan Schorr’s Employment Case of The Week ending November 7, 2014

Lemeshow v. PSE&G Services Corporation, 2014 N.J. Super. Unpub. LEXIS 2616 (App. Div. November 6, 2014)

    This week’s Case of the Week is remarkable because a pro se Plaintiff was able to revive her LAD retaliation claim in a year where the appellate courts have been attacking such claims.  This case highlights the continuing favor that appellate courts afford LAD plaintiffs even when retaliation claims under CEPA are running into disapproval.  

    Debra L. Lemeshow was a manager with PSE&G for eight years.  Throughout her employment, there was a succession of claims of gender discrimination which were proven to have been made, even though the defendant disagreed.  There was a constant tension between Ms. Lemeshow and her direct supervisor, a male, and she made several discrimination complaints about him.  

    At the end of 2007, shortly after the plaintiff had received an award recognizing “excellence in volunteerism”, PSE&G received an anonymous tip that Ms. Lemeshow had violated the expense report policy.  After an investigation, Lemeshow was accused of submitting her home internet as an expense and was also accused of being reimbursed without proper approvals. Her supervisor (the one she had been complaining about) recommended her termination.  Ms. Lemeshow rebutted all claims of improper reimbursements, countering that her home internet had been properly approved and that her supervisor was directly aware of and approved the reimbursements.  The supervisor disputed Ms. Lemeshow’s claims.

    Ms. Lemeshow sued PSE&G, alleging age and gender discrimination and retaliation for complaining about discrimination.  By the time of summary judgment, Ms. Lemeshow, who had been represented by counsel throughout the litigation, dropped her discrimination claims and proceeded ahead on only the retaliation.  Judge Perekstra found that Ms. Lemeshow had demonstrated a prima facie case of discrimination, but had not demonstrated enough weaknesses and inconsistencies in the alleged reason for termination to create a material issue of pretext.

    Apparently, after Summary Judgment, Ms. Lemeshow and her attorney parted ways, and Ms. Lemeshow filed an appeal pro se.  The Appellate panel reversed.  Agreeing that Ms. Lemeshow demonstrated a prima facie case, the panel found that there were important and sharp disputes of material fact and that the Trial Court erred in assessing credibility and making findings of fact in light of those material disputes of fact.  The matter was remanded for trial.

    This case breaks no new ground, but underscores that even pro se appellants stand a fair chance on LAD cases, while CEPA cases have been suffering a lot of judicial headwind.  Practitioners who have both CEPA and LAD claims for retaliation should consider focusing on the LAD claim primarily.  It was also nice to see a positive LAD decision from Appellate Judge Alison Accurso, who as an attorney with the Attorney General’s office was counsel of record on the losing side of two landmark discrimination cases, Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1 (2002) and Lockley v. Turner, 344 N.J. 1, affirmed but punitive damages vacated and remanded Lockley v. Dep’t of Corrections, 177 N.J. 413 (2003)
      
Plaintiff’s Appellate Counsel:  Debra L. Lemeshow, pro se.

Defendant’s Appellate Counsel: Suzanne M. Klar, Law Offices of William E. Frese.

Trial Court Judge: Darlene Perekstra.

Judges: Waugh and Accurso.

Opinion by: Accurso.