THOMAS v. KEOUGH

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CLAUDE THOMAS,

Plaintiff/

Counterclaim-Defendant,

Case No. 2:20-cv-05758 (BRM) (JBC)

v.

OPINION

PHILIP KEOUGH, et al.,

Defendants/

Counterclaimants.

MARTINOTTI, DISTRICT JUDGE1

Before the Court are two motions. The first is Defendants/Counterclaimants Philip Keough

(“Mr. Keough”), David Miller (“Mr. Miller”), Baruch Halpern (“Mr. Halpern”), YourLifeRx, Inc.

(“YourLifeRx”), and Millers of Wyckoff, Inc.’s (“Millers of Wyckoff”) (collectively,

“Defendants”) Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56.

(ECF No. 99.) Plaintiff/Counterclaim-Defendant Claude Thomas (“Plaintiff”) filed an opposition

(ECF No. 104), and Defendants filed a reply (ECF No. 107). The second is Plaintiff’s Cross-

Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 102.)

Defendants filed an opposition (ECF No. 107),2 and Plaintiff filed a reply (ECF No. 108). Having

1 This matter was reassigned to this Court on November 29, 2023, upon the retirement of the

Honorable Kevin McNulty, District Judge. (ECF No. 109.)

2 Defendants submitted one consolidated brief in further support of their Motion for Summary

Judgment and in opposition to Plaintiff’s Cross-Motion for Summary Judgment.

reviewed the parties’ submissions3 filed in connection with the Motion and Cross-Motion, and

having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the

reasons set forth below and for good cause having been shown, Defendants’ Motion for Summary

Judgment (ECF No. 99) is GRANTED and Plaintiff’s Cross-Motion for Summary Judgment (ECF

No. 102) is GRANTED IN PART and DENIED IN PART.

3 Defendants framed both their briefing and proposed order in support of their Motion for Summary

Judgment as seeking dismissal, with prejudice, of Plaintiff’s Second Amended Complaint. (See

generally ECF Nos. 99, 99-6.) Similarly, Plaintiff framed his briefing and proposed order in

support of his Cross-Motion for Summary Judgment as seeking dismissal of Defendants’

Counterclaims. (See generally ECF Nos. 102, 102-5.) There is an abundance of caselaw from the

Third Circuit and the District of New Jersey which essentially provides that a district court shall

enter judgment in favor of the party on the subject claims, rather than dismiss the claims subject

of a motion for summary judgment. See, e.g., Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119,

121 n.2 (3d Cir. 1999) (“Because the grant of summary judgment and the dismissal of the

complaint are inconsistent, we will disregard reference to the ‘dismissal’ of [plaintiff’s] complaint

and treat the record as a summary judgment record.”); see also Fanelli v. Centenary Coll., 112 F.

App’x 210, 212 n.2 (3d. Cir. 2004) (“When a district court grants a motion for summary judgment,

it should enter judgment for the prevailing party, not dismiss the complaint.”) (citing Cheminor

Drugs, 168 F.3d at 121 n.2); Sconiers v. United States, 896 F.3d 595, 596 n.2 (3d. Cir. 2018)

(affirming grant of summary judgment in favor of defendants and disregarding lower court’s order

to dismiss plaintiff’s claims with prejudice); Revell v. Jersey City, Civ. A. No. 06-32102009, 2009

WL 3152110, *1 n.2 (D.N.J. Sept. 28, 2009) (“The resolution of a motion for summary judgment

does not lead to a dismissal of the complaint, only the grant or denial of summary judgment.”);

Indus. Mar. Carriers v. Thomas Miller, Inc., Civ. A. No. 06-5625, 2009 WL 5216971, *1 n.1

(D.N.J. Dec. 29, 2009) (granting summary judgment in favor of defendant but disregarding

defendant’s request to dismiss plaintiff’s amended complaint); Bay Colony Condo. Assoc. v.

Scottsdale Ins. Co., Civ. A. No. 11-4865, 2012 WL 6725824, *5 n.5 (D.N.J. Dec. 26, 2012) (“A

grant of summary judgment on a claim and the dismissal of a claim are procedurally distinct.”).

Therefore, in addressing Defendants’ Motion for Summary Judgment and Plaintiff’s Cross-Motion

for Summary Judgment, any requests for dismissal are construed as requesting judgment in favor

of the movant.

I. BACKGROUND

A. Factual Background4

This is an employment discrimination matter involving Plaintiff’s allegations that

Defendants discriminated against him (1) on the basis of race/color and (2) on the basis of age—

resulting in constructive discharge from his employment. (See generally ECF No. 79 (Second Am.

Compl.).) Plaintiff also alleges he was subject to retaliation after objecting to a scheme of illegal

kickbacks. (Id. ¶¶ 25–28.) Among other counterclaims, Defendants allege Plaintiff

misappropriated trade secrets and engaged in unauthorized computer data access after he was no

longer employed by YourLifeRx. (See generally ECF No. 82 (Answer and Countercls.).)

Plaintiff is a fifty-four-year-old male who identifies his race as African American. (ECF

No. 104-2 (Pl.’s CMF in Opp’n of Mot. for Summ. J.) ¶ 1.) Plaintiff testified he began his

employment with Millers of Wyckoff, a compounding and homecare pharmacy, as a pharmacy

4 The parties submitted eight different statements setting forth and responding to the material facts.

The following five are related to Defendants’ Motion for Summary Judgment: (1) Defendants’

Statement of Material Facts (“SMF”) in Support of Motion for Summary Judgment (ECF No. 99-

1); (2) Plaintiff’s Counterstatement of Material Facts (“CMF”) in Opposition to Motion for

Summary Judgment (ECF No. 104-2); (3) Plaintiff’s Response to Defendants’ Statement of

Material Facts (ECF No. 104-3); (4) Defendants’ Response to Plaintiff’s CMF (ECF No. 107-6);

(5) Defendants’ Reply to Plaintiff’s Response to Defendants’ SMF (ECF No. 107-7). The

following three are related to Plaintiff’s Cross-Motion for Summary Judgment: (1) Plaintiff’s SMF

in Support of Cross-Motion for Summary Judgment (ECF No. 102-3); (2) Defendants’ CMF in

Opposition to Plaintiff’s Cross-Motion for Summary Judgment (ECF No. 107-5); (3) Plaintiff’s

Response to Defendants’ CMF (ECF No. 108-1). There are inconsistencies throughout these eight

different statements, most significantly, conflicting statements from the same party. In its best

efforts to resolve these inconsistencies, the Court provides the following facts. Unless otherwise

noted, the following facts are undisputed or were admitted by the opposing party in one of these

statements.

technician in February 2001.5 (ECF No. 99-1 (Defs.’ SMF in Supp. of Mot. for Summ. J.) ¶ 11

(citing Claude Thomas Dep. 41:14–42:13).) Plaintiff was promoted several times during his tenure

with Millers of Wyckoff; Plaintiff’s last promotion, prior to the sale of Millers of Wyckoff in 2019,

was to the Director of Marketing position at a base salary of $90,000.00. (ECF No. 99-1 ¶ 13

(citing Claude Thomas Dep. 44:4–15, 51:15–16).) In his position as Director of Marketing,

Plaintiff formulated pricing policies, generated lists of potential doctors that he would visit on sales

calls as well as a list of physicians that he developed after making sales calls and generating

business. (ECF No. 99-1 ¶ 17 (citing Claude Thomas Dep. 49:9–51:3).)

Mr. Miller was the owner and principal of Millers of Wyckoff until he sold it in January

2019. (ECF No. 104-2 ¶ 2; ECF No. 107-6 (Defs.’ Resp. to Pl.’s CMF) ¶ 2).) Prior to the sale, Mr.

Keough,6 a prospective buyer, was presented with complaints about Plaintiff from Plaintiff’s co-

workers when inquiring whether Plaintiff should be retained by YourLifeRx. (ECF No. 99-1 ¶¶

5 Plaintiff certifies he was employed by Millers of Wyckoff from 2000 until May 2019. (ECF No.

102-3 (Pl.’s SMF in Supp. of Cross-Mot. for Summ. J.) ¶ 1 (citing (ECF No. 102-1 (Certification

of Claude Thomas ¶ 1)).) Further, Plaintiff asserts he was employed in the position of General

Manager. (ECF No. 104-2 (Pl.’s CMF in Opp’n of Mot. for Summ. J.) ¶ 1 (citing (ECF No. 104-1

(Certification of Claude Thomas in Opp’n of Mot. for Summ. J.) ¶ 1 )).) However, Plaintiff

ultimately admitted the contents of his testimony and Defendants’ SMF, that he began his

employment with Millers of Wyckoff as a pharmacy technician in February 2001. (ECF No. 104-

3 (Pl.’s Resp. to Defs.’ SMF) ¶ 4).) In the interest of judicial economy, the Court will not list other

inconsistencies of the eight provided statements.

6 Plaintiff certifies both Mr. Keough and Mr. Halpern are the principals in YourLifeRx. (ECF No.

104-2 ¶ 2 (citing ECF No. 104-1 (Certification of Claude Thomas in Opp’n of Mot. for Summ. J.

¶ 2)).) However, both Mr. Keough and Mr. Halpern testified Mr. Halpern is currently the sole

shareholder of YourLifeRx. (ECF No. 107-6 ¶ 2 (citing Philip Keough Dep. 16:11–17; Baruch

Halpern Dep. 12:20–13:11).) Based on Mr. Halpern’s testimony, the Court will make the logical

inference that Mr. Keough was acting as a prospective buyer in January 2019 because both he and

Mr. Halpern owned shares in YourLifeRx at the time. (Baruch Halpern Dep. 13:9–12.) The parties

do not provide further information as to either Mr. Keough or Mr. Halpern’s exact position and/or

role in YourLifeRx or Millers of Wyckoff during the relevant events.

22–26 (citing Certification of John K. Bennett, Esq. (“Bennett Cert.”), Ex. 10, Sept. 3, 2018 E-

mail Chain; Claude Thomas Dep. 56:11–67:23).) In December 2018, Plaintiff sent correspondence

to Mr. Keough and Mr. Halpern stating the reasons why Plaintiff believed he should be considered

for a new role in YourLifeRx. (ECF No. 99-1 ¶ 28 (citing Bennett Cert., Ex. 12, Dec. 2018

Correspondence; Claude Thomas Dep. 73:2–76:22).)

On December 29, 2018, Mr. Miller sent an e-mail to several Millers of Wyckoff employes,

including Plaintiff, explaining the need to make the company profitable because Mr. Keough’s

investors were demanding a twenty-five percent reduction in staffing costs. (ECF No. 99-1 ¶ 30

(citing Claude Thomas Dep. 76:23–79:21).) On that same day, Plaintiff replied to Mr. Miller’s e-

mail with an agenda plan that would purportedly save at least $300,000 in operation costs by

reducing employee hours and salaries, among other proposals. (ECF No. 99-1 ¶¶ 31–32 (citing

Bennett Cert., Ex. 11, Dec. 29, 2018 Correspondence and Agenda Plan; Claude Thomas Dep.

80:5–82:25).)

On January 3, 2019, Plaintiff sent an e-mail entitled “Uma here” to his personal e-mail

which attached Millers of Wyckoff’s doctors list.7 (ECF No. 107-5 (Defs.’ CMF in Opp’n of Mot.

for Summ. J.) ¶ 10 (citing Bennett Suppl. Cert., Ex. 7, Jan. 3, 2019 Correspondence).) Plaintiff

testified he could not recall the reason he sent the doctor’s list to his personal e-mail address and/or

the signification of the caption “Uma here.” (ECF No. 107-5 ¶ 11 (citing Claude Thomas Dep.

170:17–171:13).)

On or about January 27, 2019, Mr. Miller sold Millers of Wyckoff to Mr. Halpern, which

7 Uma Ramasamy (“Ms. Ramasamy”) worked at Millers of Wyckoff as a pharmacologist prior to

and after its sale; Uma now works at Medicos Pharmacy (“Medicos”) with Plaintiff. (ECF No.

107-5 ¶¶ 36–37.)

is now being operated as a YourLifeRx company under the same name (Millers of Wyckoff). (ECF

No. 99-1 ¶¶ 3, 33 (citing David Miller Dep. 13:8–12; Claude Thomas Dep. 85:16–18).) Following

the sale, Plaintiff was informed by Mr. Keough that he would continue his employment with

YourLifeRx as Front Store Manager. (ECF No. 99-1 ¶ 34 (citing Claude Thomas Dep. 85:19–

87:10; Bennett Cert., Ex. 13, Jan. 28, 2019 Memorandum from Mr. Keough).) In the position of

Front Store Manager, Plaintiff was responsible for overseeing all the non-pharmacy teams and

leading sales efforts. (Id.) Due to these new responsibilities, Plaintiff “was in the store 100 percent”

of the time as Mr. Keough told Plaintiff to stop his marketing efforts and focus on sales in the

store. (ECF No. 99-1 ¶ 36 (citing Claude Thomas Dep. 87:3–10, 96:10–97:6).)

After the sale, Mr. Miller was also employed by YourLifeRx as the Pharmacist-In-Charge

of Millers of Wyckoff. (ECF No. 104-2 ¶ 2 (citing ECF No. 104-1 ¶ 2); Bennett Cert., Ex. 13, Jan.

28, 2019 Memorandum from Mr. Keough).) On February 7, 2019, Mr. Miller e-mailed Mr.

Halpern and Mr. Keough to inform them of “dire” situations at the store including a significant

decline in prescription sales numbers which could be solved by Plaintiff conducting “his most

important role in marketing the company and specifically compounding” because he was an

effective salesman. (ECF No. 99-1 ¶ 37 (citing Claude Thomas Dep. 60:3–61:4, 97:16–98:2,

111:9–12; Bennett Cert., Ex. 14, Feb. 7, 2019 Correspondence).)8

Plaintiff began to have conflicts with employees in the store starting in March 2019. (ECF

8 In his response to Defendants’ SMF, Plaintiff “neither admits nor denies the allegations of ¶ 37,

and leaves Defendants to their proofs. He does say that even if the decision to put him out of the

store had a business purpose, it also had a racial component.” (ECF No. 104-3 ¶ 8.) However,

Plaintiff does not cite to any support for this contention. The Court notes Plaintiff frequently admits

that statements were made but denies the truth of those statements. Unless relevant to the outcome

of the decision, and because the Court is citing statements from the record, the Court will not point

out each objection.

No. 99-1 ¶ 39 (citing Claude Thomas Dep. 98:3–7).) On March 28, 2019, Plaintiff received an e-

mail from his coworker, Kematta Trahan (“Ms. Trahan”), wherein Ms. Trahan complained of

Plaintiff’s harassment and bullying. (ECF No. 99-1 ¶ 40 (citing Claude Thomas Dep. 100:2–23;

Bennett Cert., Ex. 15, Mar. 28, 2019 E-Mail from Ms. Trahan).)

In early April 2019, Plaintiff sent an e-mail to Mr. Keough, Mr. Miller, and Mr. Halpern

concerning an issue of alleged kickbacks to a sales representative, Zahid Qureshi (“Mr. Qureshi”),

for sales of certain compound prescriptions.9 (ECF No. 99-1 ¶ 41 (citing Bennett Cert., Ex. 16,

Apr. 2019 E-Mail Chain).) In response to Plaintiff’s e-mail, Mr. Miller stated “Zahid was a

legitimate 1099 independent contractor.” (ECF No. 99-1 ¶ 43 (citing Bennett Cert., Ex. 16, Apr.

2019 E-Mail Chain).) Mr. Halpern also responded by stating “there will be zero tolerance for

anything that even remotely looks or feels unethical or could be construed as a kickback. We will

only run our business with only the highest levels of integrity and ethics. Anyone found violating

this will not work for us.” (ECF No. 99-1 ¶ 44 (citing Bennett Cert., Ex. 16, Apr. 2019 E-Mail

Chain).)

On May 16, 2019, Mr. Keough notified Plaintiff about the restructuring of YourLifeRx and

offered Plaintiff the position of Director of Sales and Marketing “to capitalize on [his] selling

skill.” (ECF No. 99-1 ¶¶ 46–47 (citing Bennett Cert., Ex. 18, May 2019 E-mail Chain).) This

position, contingent on the signing of a non-compete agreement, would include a base salary of

$60,000.00, an additional payment of “6.5% commission on all new business tied directly to new

doctors” that Plaintiff brought in with no cap on the amount of the commission, and a $500.00 a

month car allowance to cover transportation. (ECF No. 99-1 ¶¶ 46–48 (citing May 2019 E-mail

9 Defendants assert Plaintiff and Ms. Ramasamy established an agreement in 2014 to pay Mr.

Qureshi “15% of the sales that he brings,” and to report his sales commissions on an IRS Form

1099. (ECF No. 99-1 ¶ 45 (citing Bennett Cert., Ex. 17, 2014 and 2015 e-mails re: Zahid Qureshi).)

Chain; Claude Thomas Dep. 117:15–119:10).)

On May 17, 2019, Plaintiff received an e-mail from Sean Bucher (“Mr. Bucher”), a co-

worker, with a link to YourLifeRx’s compounding price list. (ECF No. 107-5 ¶ 20 (citing Claude

Thomas Dep. 119:20–120:2; Bennett Suppl. Cert., Ex. 1, May 17, 2019 Correspondence from Mr.

Bucher).) At his deposition, Plaintiff testified he could not recall if he asked Mr. Bucher to send

him the compounding price list. (ECF No. 107-5 ¶ 21 (citing Claude Thomas Dep. 119:20–121:7).)

Four minutes after receiving the compounding price list from Mr. Bucher, Plaintiff received an e-

mail entitled “PRICE LIST,” from Lynn Gruenberg (“Ms. Gruenberg”), another co-worker, which

contained an attachment of a price list for erectile dysfunction (“ED”) medication. (ECF No. 107-

5 ¶ 22 (citing Claude Thomas Dep. 124:9–16; Bennett Suppl. Cert., Ex. 2, May 17, 2019

Correspondence from Ms. Gruenberg).) Plaintiff testified he could not recall whether he printed

the compounding list and/or the ED price list. (ECF No. 107-5 ¶ 23 (citing Claude Thomas Dep.

123:17–18, 124:24–125:5).)

On May 19, 2019, Plaintiff responded to Mr. Keough’s May 16, 2019 e-mail by stating the

$30,000 salary decrease would be a “hardship on [his] family.” (ECF No. 99-1 ¶ 49 (citing May

2019 E-mail Chain; Claude Thomas Dep. 117:15–119:10, 130:11–131:23).) Plaintiff presented a

counterproposal in which he refused to sign the non-compete and requested a base salary of

$75,000, a commission of 15% the first year, a commission of 2% the second year, and a

commission of 1% thereafter. (Id.)

Thereafter, Mr. Keough responded to Plaintiff’s counterproposal by stating YourLifeRx

was “eliminating the [Front Manager] position to streamline the operations” and YourLifeRx “will

always try to be fair when considering a job and its related compensation” but in order to negotiate

Plaintiff’s base salary and commission, Plaintiff must be willing to sign the non-compete

agreement. (ECF No. 99-1 ¶ 51 (citing May 2019 E-mail Chain; Claude Thomas Dep. 117:15–

119:10).) On May 20, 2019, Plaintiff responded “I will not be able to sign this agreement due to

dissolve in position and financial hardship on my family.” (ECF No. 99-1 ¶ 52 (citing May 2019

E-mail Chain; Claude Thomas Dep. 141:10–142:13).) Plaintiff admitted that by sending this

response, he was resigning from his employment with YourLifeRx. (ECF No. 99-1 ¶ 53 (citing

Claude Thomas Dep. 141:10–142:13).)

Plaintiff raises allegations from his experiences with Mr. Keough in support of his claims.10

(See generally ECF No. 104-2 (citing ECF No. 104-1).) As to the employment discrimination

claims, Plaintiff alleges: Mr. Miller warned Plaintiff Mr. Keough had “Southern views”; Mr.

Keough was not pleased to employ an African American manager; Mr. Keough told Mr. Miller to

fire multiple employees because of their age; Mr. Keough threatened Plaintiff by telling him he

would find a replacement employee; Mr. Keough told Plaintiff he “want[ed] to make the store

younger, with employees and products”; Mr. Keough told him several times he intended to make

the “workforce younger.” (ECF No. 79 ¶¶ 8–14; ECF No. 104-2 ¶¶ 4–6, 8 (citing ECF No. 104-1

¶¶ 4–9).) As to the retaliation claim, Plaintiff alleges Mr. Miller: would “recycle” the drugs

customers placed in a drop box; returned medications which were not picked up by customers back

to inventory without reversing insurance billing; asked Plaintiff to falsify refrigerator temperature

logs; had non-pharmacy staff involved in filling prescriptions; would provide customers with

additional pills before they were due for a refill; and engaged in “kickbacks” with a doctor’s office.

(ECF No. 79 ¶¶ 15–16; ECF No. 104-2 ¶¶ 12–14 (citing ECF No. 104-1 ¶¶ 12–14).) Although

10 Based on a review of the Second Amended Complaint (ECF No. 79 ¶¶ 8–16), the Certification

of Claude Thomas in Opposition to Defendants’ Motion for Summary Judgment (ECF No. 104-1

¶¶ 4–9, 12–14), and Plaintiff’s CMF in Opposition of the Motion for Summary Judgment (ECF

No. 104-2 ¶¶ 4–6, 8, 12–14), it is clear Plaintiff repeated, almost verbatim, the allegations

contained in the Second Amended Complaint in both his own Certification and the CMF.

Plaintiff admitted he did not initially mention racism, discrimination, or a hostile work

environment as reasons why he refused to sign the offer of employment (ECF No. 99-1 ¶ 54 (citing

Claude Thomas Dep. 140:21–24)), Plaintiff asserts the offered position and salary decrease were

because of racial discrimination and/or retaliation and he “felt compelled to resign because of the

ageist and racially hostile environment that his bosses had created in the past several months.”

(ECF No. 104-2 ¶¶ 15–16 (citing ECF No. 104-1 ¶¶ 15).)

On August 23, 2019, Mr. Miller received an e-mail from a pharmacist at Jiffy Scripts Rx

which stated the pharmacist found both Millers of Wyckoff and YourLifeRx’s files on Jiffy Scripts

Rx’s database. (Bennett Suppl. Cert., Ex. 9, Aug. 23, 2019 Correspondence.) On that same day,

Mr. Miller sent an e-mail to Mr. Halpern and Mr. Keough which stated:

[The Jiffy Scripts Rx Pharmacist] told me that she and the new

Pharmacists at Jiffy were looking at a computer in the lab and found

things she knew were inappropriate. She showed me a photo she had

taken of a screen which contained the spread sheet I had kept up at

Millers for over 10 years showing the breakdown of sales by

department and an analysis of trends. You have seen this

spreadsheet as it was the sales report I gave to the accountant every

month. The only other person who had this was Claude. I reviewed

these numbers with him every month as he was the sales manager to

point out where our sales had increased or declined to give us an

idea of where to focus our sales efforts. It is apparent that he stole a

copy of this report when he left and is sharing it with at least this

one competitor. More disturbing is [the Jiffy Scripts Rx

Pharmacist]’s revelation that she also saw a report showing all of

our compound prices and PATIENT names and addresses. She did

not take a photo of this because she was afraid of violating HIPAA.

I told her that, since it was Millers [of Wyckoff] data she was not

violating HIPAA and asked her to make a copy of this file for us so

we can see what it is. So, now we know that Claude also stole patient

information and price sheets and has given them to at least one

competitor.

(Id.) Thereafter, on September 2, 2019, Plaintiff sent an e-mail to Robert Beson (“Mr. Beson”) of

Progurt, a probiotic manufacturer, which stated: “Millers [of Wyckoff] shouldn’t be a distraction

to the potential at hand. Just my thoughts. Please let me know next steps, Uma awaits as well.”11

(ECF No. 107-5 ¶ 32 (citing Bennett Suppl. Cert., Ex. 10, Plaintiff’s E-mails with Robert Beson).)

As a result of this conduct, Millers of Wyckoff/YourLifeRx sent Plaintiff a letter demanding

Plaintiff cease and desist disseminating confidential information (the “October 7, 2019 Cease and

Desist Letter”). (ECF No. 107-5 ¶ 34 (citing Bennett Suppl. Cert., Ex. 11, October 7, 2019 Cease

and Desist Letter).)

Despite receiving and understanding the October 7, 2019, Cease and Desist Letter,12

Plaintiff sent a fax on October 23, 2019 (the “October 2019 Fax”) to a physician’s office on behalf

of Plaintiff’s current employer, Medicos. (ECF No. 107-5 ¶ 36 (citing Bennet Suppl. Cert. Ex. 12,

October 2019 Fax Cover Sheet).) The October 2019 Fax: introduced Plaintiff and Ms. Ramasamy

and stated “[d]ue to the sale of Millers we have now joined Medicos”; detailed Medicos’s pricing

on ED medication; and referenced a price list which was enclosed. (Id.) Syed Hussaini (“Mr.

Hussaini”), a managing member of Medicos, testified Plaintiff created the price list referenced in

the October 2019 Fax. (ECF No. 107-5 ¶ 38 (citing Syed Hussaini Dep. 114:8–116:4).)

Based on Plaintiff’s alleged misconduct, Defendants assert Plaintiff is liable for damages

because he utilized confidential, proprietary, and trade secret information to compete against

Defendants resulting in Plaintiff breaching his confidentiality obligations. (See generally ECF No.

82 (Countercls.).) YourLifeRx utilized the same employee handbook as Millers of Wyckoff (the

“Employee Handbook”), which notes YourLifeRx is committed to equal opportunity employment,

11 Plaintiff admitted he did not produce the entire e-mail thread with Mr. Beson because Plaintiff

had deleted portions. (ECF No. 107-5 ¶ 33 (citing Claude Thomas Dep. 162:19–164:1).)

12 Plaintiff acknowledged he had received and understood the letter but stated he did not respond.

(ECF No. 107-5 ¶ 35 (citing Claude Thomas Dep. 160:6–161:8).)

and strives to maintain an environment free of harassment, discrimination, and retaliatory conduct.

(ECF No. 99-1 ¶ 4 (citing Bennett Cert., Ex. 5, the Employee Handbook).) YourLifeRx’s

employees are encouraged to raise concerns and make reports of discrimination and/or retaliation

without fear of reprisal. (ECF No. 99-1 ¶ 5 (citing the Employee Handbook).)

The Employee Handbook also contains a confidentiality agreement that requires

YourLifeRx’s employees during employment and following the conclusion of employment “to

hold in strictest confidence and not disclose Confidential Information.” (ECF No. 99-1 ¶ 9 (citing

Claude Thomas Dep. 94:9–96:5; Bennett Cert., Ex. 7, the Employee Handbook’s Signature Page).)

At his deposition, Plaintiff acknowledged he signed the Employee Handbook’s signature page on

February 19, 2019, thereby indicating that he received, read, and agreed to abide by all current and

future policies contained in the Employee Handbook, including the Confidentiality Agreement.

(ECF No. 99-1 ¶ 10 (citing Claude Thomas Dep. 94:9–96:5).)

B. Procedural History

On May 11, 2020, Plaintiff filed the original Complaint. (ECF No. 1.) On August 3, 2020,

Defendants filed their Answer to the original Complaint. (ECF No. 3.) On December 22, 2020,

Plaintiff filed the Amended Complaint. (ECF No. 15.) On December 28, 2020, the Honorable

James B. Clark, U.S.M.J. entered the Pretrial Scheduling Order which required the parties to “seek

leave of the Court by way of a letter application” prior to filing a dispositive motion. (ECF No.

16.) Plaintiff filed a corrected Amended Complaint on January 26, 2021. (ECF No. 21.)

On February 15, 2021, Mr. Miller filed a Motion to Dismiss the Second and Fourth Counts

of the Amended Complaint. (ECF No. 22.) The next day, Mr. Miller filed: a notice of withdrawal

of the Motion to Dismiss (ECF No. 23); and a letter which acknowledged his failure to comply

with the requirements of the Pretrial Scheduling Order and requested Judge Clark’s permission to

refile the Motion to Dismiss. (ECF No. 24.) Also, on February 16, 2021, Mr. Halpern, Mr. Keough,

and YourLifeRx (the “YourLifeRx Defendants”) filed an Answer to the Amended Complaint and

Counterclaims. (ECF No. 25 (Answer and Countercls.).)

On February 17, 2021, Judge Clark entered an Order allowing Mr. Miller to file his Motion

to Dismiss. (ECF No. 26.) Thereafter, Mr. Miller refiled his Motion to Dismiss the Second and

Fourth Counts of the Amended Complaint. (ECF No. 27.) On February 20, 2021, Plaintiff filed an

Answer to the YourLifeRx Defendants’ Counterclaims. (ECF No. 31.)

On February 22, 2021, Judge Clark entered an Order allowing Plaintiff to file a Cross-

Motion seeking leave to amend the Amended Complaint in response to Mr. Miller’s Motion to

Dismiss. (ECF No. 32.) On February 28, 2021, Plaintiff filed: an Opposition to Mr. Miller’s

Motion to Dismiss (ECF No. 33); and a Cross-Motion seeking leave to file a Second Amended

Complaint (ECF No. 34). On March 1, 2021, Plaintiff filed a corrected Cross-Motion. (ECF No.

35.) On March 22, 2021, Judge Allen entered a Consent Order which stayed and administratively

terminated Mr. Miller’s Motion to Dismiss and Plaintiff’s Cross-Motion seeking leave to file a

Second Amended Complaint. (ECF No. 41.) On April 21, 2021, Judge Allen entered another

Consent Order restoring the aforementioned motions to the motion calendar. (ECF No. 45.)

On December 15, 2021, Judge Allen entered an Order: granting Plaintiff’s unopposed

Cross-Motion seeking leave to file a Second Amended Complaint; and terminating Mr. Miller’s

pending Motion to Dismiss as moot. (ECF No. 78.) On the same date, Plaintiff filed his Second

Amended Complaint alleging violations of: Title VII of the Civil Rights Act of 1967 (“Title VII”),

42 U.S.C. § 2000e, et seq. (First Count); the New Jersey Law Against Discrimination ( “NJLAD”),

N.J. Stat. Ann. § 10:5-1, et seq. (Second Count); the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621, et seq. (Third Count); and the Conscientious Employee Protection

Act (“CEPA”), N.J. Stat. Ann. § 34:19-1, et seq. (Fourth Count). (ECF No. 79.)

On January 12, 2022, Defendants filed their Answer and Counterclaims in response to

Plaintiff’s Second Amended Complaint. (ECF No. 82 (Answer and Countercls.).) Defendants

raised ten counterclaims including: NJLAD claims brought in bad faith (First Counterclaim);

frivolous complaint under N.J. Stat. Ann. § 2A:15-59.1 (Second Counterclaim); malicious abuse

of legal process (Third Counterclaim); malicious prosecution (Fourth Counterclaim); conversion

of property (Fifth Counterclaim); breach of confidentiality agreements (Sixth Counterclaim);

trespass to property (Seventh Counterclaim); violation of the New Jersey Trade Secrets Act (the

“NJTSA”), N.J. Stat. Ann. § 56:15-1, et seq. (Eighth Counterclaim); violation of the New Jersey

Computer Related Offenses Act (the “NJCROA”), N.J. Stat. Ann. § 2A:38a-1, et seq. (Ninth

Counterclaim); violation of the Computer Fraud and Abuse Act (the “CFAA”), 18 U.S.C. § 1030,

et seq. (Tenth Counterclaim). (Id.)

Judge Allen conducted a settlement conference on February 9, 2023. (ECF No. 97.)

Ultimately, settlement efforts were unsuccessful. On February 14, 2023, Judge Clark entered a

Letter Order requiring “[a]ny motions for summary judgment [to] be filed by April 14, 2023.”

(ECF No. 98.)

On April 14, 2023, Defendants filed the pending Motion for Summary Judgment. (ECF

No. 99.) Thereafter, Plaintiff filed a letter requesting additional time to file a Cross-Motion and an

opposition to Defendants’ Motion for Summary Judgment. (ECF No. 100.) On April 17, 2023,

Judge Allen entered a Letter Order which granted Plaintiff’s request and provided that “Plaintiff’s

Opposition shall be filed by May 15, 2023.” (ECF No. 101.)

On May 15, 2023, Plaintiff filed a Cross-Motion seeking summary judgment on

Defendants’ counterclaims (ECF No. 102) and an Opposition to Defendants’ Motion for Summary

Judgment (ECF No. 104). On the same date, Defendants filed a letter asserting Judge Allen’s April

17, 2023 Letter Order did not provide Plaintiff with additional time to file his cross-motion thus

Defendants requested Judge Allen strike Plaintiff’s Cross-Motion. (ECF No. 103 at 1–2.) On May

16, 2023, Judge Allen entered a Letter Order denying Defendants’ request to strike Plaintiff’s

Cross-Motion. (ECF No. 106.) On June 12, 2023, Defendants filed a brief both in further support

of their Motion for Summary Judgment and in opposition to Plaintiff’s Cross-Motion for Summary

Judgment. (ECF No. 107.) On June 18, 2023, Plaintiff filed a reply in further support of his Cross-

Motion for Summary Judgment. (ECF No. 108.)

On November 29, 2023, the matter was reassigned from the Honorable Kevin McNulty,

U.S.D.J. to the undersigned. (ECF No. 109.)

II. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “On motions for summary judgment, the movant shall furnish a statement which sets forth

material facts as to which there does not exist a genuine issue, in separately numbered paragraphs

citing to the affidavits and other documents submitted in support of the motion.” L. Civ. R. 56.1(a).

A party asserting a genuine dispute of material fact must support the assertion by either “citing to

particular parts of materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials” or “showing that the materials

cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). A factual dispute “is

genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the

non-moving party,” and “is material only if it might affect the outcome of the suit under governing

law.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). “Unsupported allegations, subjective beliefs, or argument

alone, however, cannot forestall summary judgment.” Read v. Profeta, 397 F. Supp. 3d 597, 625

(D.N.J. 2019) (citations omitted). Irrelevant or unnecessary factual disputes will also not preclude

a grant of summary judgment. See Anderson, 477 U.S. at 248. Moreover, “mere speculation does

not create genuine issues of material fact.” Dellapenna v. Tredyffrin/Easttown Sch. Dist., 449 F.

App’x 209, 215–16 (3d Cir. 2011) (citing Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12

(3d Cir. 1990)).

The party moving for summary judgment has the initial burden of showing the basis for its

motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a movant adequately supports

its summary judgment motion, the burden shifts to the nonmovant to “go beyond the pleadings

and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

file,’ designate specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477

U.S. at 324. “In considering a motion for summary judgment, a district court may not make

credibility determinations or engage in any weighing of the evidence; instead, the non-moving

party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”

Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at

255)). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150−51 (2000) (quoting Anderson, 477 U.S. at 255). In other words, in

deciding a party’s summary judgment motion, the court’s role is not to evaluate the evidence and

decide the truth of the matter, but to determine whether there is a genuine issue for trial. See

Anderson, 477 U.S. at 255. “Summary judgment is appropriate only when there are no genuine

issues of material fact, drawing all justifiable inferences in favor of the nonmovant.” Adams v.

Fayette Home Care & Hospice, 452 F. App’x 137, 139 (3d Cir. 2011) (citing Anderson, 477 U.S.

at 248, 255).

If the moving party bears the burden of proof at trial, summary judgment is not appropriate

if the evidence is susceptible to different interpretations or inferences by the trier of fact. Hunt v.

Cromartie, 526 U.S. 541, 553 (1999); see also id. at 553 n.9 (noting “summary judgment is rarely

granted in a plaintiff’s favor in cases where the issue is a defendant’s racial motivation, such as

disparate treatment suits under Title VII or racial discrimination claims under 42 U.S.C. § 1981”).

On the other hand, if the non-moving party bears the burden of proof at trial, “summary judgment

is warranted if the nonmovant fails to ‘make a showing sufficient to establish the existence of an

element essential to [its] case.’” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (alteration in

original) (quoting Celotex Corp., 477 U.S. at 322). A “genuine issue as to any material fact” cannot

exist if a party fails “to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477

U.S. at 322–23. “[A] complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.” Id. at 323. A material fact raises a

“genuine” dispute “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Williams v. Borough of W. Chester, 891 F.2d 458, 459 (3d Cir. 1989) (quoting

Anderson, 477 U.S. at 248).

III. DECISION

Defendants filed a motion seeking summary judgment on the four counts of the Second

Amended Complaint. (ECF Nos. 99, 99-6 (Defs.’ Proposed Order).) Plaintiff filed a cross-motion

seeking summary judgment on eight of the ten Counterclaims. (ECF Nos. 102, 102-5 (Pl.’s

Proposed Order).) The Court addresses each in turn.13

A. Defendants’ Motion for Summary Judgment

1. Summary Judgment in Favor of YourLifeRx and Millers of Wyckoff Is

Warranted as to Plaintiff’s Title VII Claim (First Count)

Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or

national origin. Slagle v. Cnty. of Clarion, 435 F.3d 262, 265 (3d Cir. 2006) (citing 42 U.S.C. §

2000e-2). “To prevail on a Title VII claim of discrimination or retaliation, a plaintiff must first

establish a prima facie case.” Rhoden v. Childs. Hosp. of Pittsburgh of UPMC Health Sys., 749 F.

App’x 86, 88 (3d Cir. 2018). A prima facie case of national origin or race discrimination requires

a plaintiff to establish that: “(1) she is a member of a protected class; (2) she was qualified for her

position; (3) she suffered an adverse employment action; and (4) the adverse employment action

occurred under circumstances that give rise to an inference of unlawful discrimination.” Id.

(citations omitted).

“[N]ational origin and race are protected classes under Title VII[.]” Santos v. Iron

Mountain Film & Sound, Civ. A. No. 12-04214, 2013 WL 6054832, at *4 (D.N.J. Nov. 14, 2013).

Discrete acts of discrimination can include “termination, failure to promote, denial of transfer, or

refusal to hire.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). The Third

Circuit has described an adverse employment action “as an action by an employer that is serious

13 See supra footnote 3.

and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of

employment.” Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) (quoting Storey v.

Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)). The Third Circuit has held “direct

economic harm is an important indicator” of a “serious and tangible” adverse employment action.

Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir. 1999). Further, an indirect economic

harm may be deemed “a tangible adverse employment action” when “an employer’s act

substantially decreases an employee’s earning potential.” Id. (citing Booker v. Budget Rent-A-Car

Sys., 17 F. Supp. 2d 735 (M.D. Tenn. 1998)). A plaintiff can show circumstances giving rise to an

inference of unlawful discrimination by either (1) introducing “evidence of comparators (i.e.,

similarly situated employees who (a) were not members of the same protected class and (b) were

treated more favorably under similar circumstances)”; or (2) relying on “circumstantial evidence

that otherwise shows a causal nexus between his membership in a protected class and the adverse

employment action.” Greene v. Virgin Islands Water & Power Auth., 557 F. App’x 189, 195 (3d

Cir. 2014).

The McDonnell Douglas burden-shifting framework applies to claims of discrimination

under Title VII. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973)). This framework has three basic steps. First, the

plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence.

Sarullo, 352 F.3d at 797 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). Second,

if the plaintiff establishes a prima facie case of discrimination, then the burden shifts to the

employer to articulate a legitimate, nondiscriminatory reason for its action or decision. Sarullo,

352 F.3d at 797 (quoting McDonnell Douglas, 411 U.S. at 802). The employer “satisfies its burden

of production by introducing evidence which, [if] taken as true, would permit the conclusion that

there was a nondiscriminatory reason for the unfavorable employment decision.” Fuentes v.

Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citing St. Mary’s Honor Ctr., 509 U.S. at 509). “The

employer need not prove that the tendered reason actually motivated its behavior, as throughout

this burden-shifting paradigm the ultimate burden of proving intentional discrimination always

rests with the plaintiff.” Id. (citing Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253−54

(1981)). Third, if the employer meets this “relatively light burden,” Fuentes, 32 F.3d at 763, then

“the burden returns to the [plaintiff], who must show by a preponderance of the evidence that the

employer’s proffered reason is pretextual.” Anderson v. Boeing Co., 694 F. App’x 84, 86 (3d Cir.

2017) (citing McDonnell, 411 U.S. at 804). To show pretext, “a plaintiff must point to direct or

circumstantial evidence ‘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.’” Jackson

v. Planco, 431 F. App’x 161, 165 (3d Cir. 2011) (quoting Fuentes, 32 F.3d at 764). “An employer

would be entitled to judgment as a matter of law if . . . the plaintiff created only a weak issue of

fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted

independent evidence that no discrimination had occurred.” Sanderson Plumbing, 530 U.S. at 143

(internal citations omitted).

If each party meets its burden at each stage of this framework, then summary judgment is

inappropriate. See Whishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007). But summary judgment

may be appropriate if a party fails to meet its burden under this framework. Dellapenna, 449 F.

App’x at 215−16.

Defendants assert they are entitled to summary judgment as to Plaintiff’s claims because:

there are no genuine issues of material fact as to Plaintiff’s claims of discrimination and/or

retaliation. (ECF No. 99-2 at 4.) Defendants contend Plaintiff did not suffer an adverse

employment action because Plaintiff voluntarily resigned.14 (Id. at 4–6.) Further, Defendants argue

Plaintiff’s claims fail because he cannot establish he suffered an adverse employment action and/or

the adverse employment action occurred under circumstances giving rise to an inference of

discrimination. (Id. at 6.) Defendants assert Plaintiff was not constructively discharged because

there was no hostile work environment present. (Id. at 6–9.) Defendants submit “[t]he fact that

Plaintiff would have been just fine working for [YourLifeRx] and with Defendants Miller, Keough,

and Halpern for more money prevents him from establishing an adverse employment action.” (Id.

at 9.)

In opposition, Plaintiff claims the adverse employment at issue is that he was constructively

discharged due to feeling “compelled to resign because of the ageist and racially hostile

environment.” (ECF No. 79 ¶ 17; ECF No. 104 at 2; see also ECF No. 79 ¶¶ 19, 21, 23, 27; ECF

No. 104 at 4–11.) Plaintiff contends the issue of whether Plaintiff was constructively discharged

is not ripe for summary judgment and must be decided by a jury. (ECF No. 104 at 3–4.) Plaintiff

argues he has established a prima facie case of racial discrimination. (Id. at 4–8.) Further, Plaintiff

14 Plaintiff does not dispute his voluntary resignation. (ECF No. 99-1 ¶ 53 (citing Claude Thomas

Dep. 141:10–142:13).) In their reply brief, Defendants further assert the intoxicating argument that

Plaintiff’s voluntary resignation precludes a finding of an adverse employment action. (ECF No.

107 at 5 (citing Pa. State Pol. v. Suders, 542 U.S. 129, 141–42 (2004); Schofield v. Metro. Life

Ins. Co., Civ. A. No. 03-0357, 2006 WL 2660704, at *8 (M.D. Pa. Sept. 15, 2006).) The cases that

Defendants cite to are not completely analogous to this matter as neither involve similar factual

circumstances where the employee was offered a position with a much lower salary. See Pa. State

Pol., 542 U.S. at 135–36; Schofield, 2006 WL 2660704, at *1–4. Given the Third Circuit’s holding

in Durham Life Ins., the Court notes an argument certainly could have been made by Plaintiff that

he suffered an adverse employment action when YourLifeRx and Millers of Wyckoff made an

employment offer to Plaintiff which initially represented a $30,000.00 salary decrease resulting in

“direct economic harm” to him. 166 F.3d at 153. However, Plaintiff did not raise this argument.

(See generally ECF No. 104.) Accordingly, the Court will address Plaintiff’s assertions that he

suffered an adverse employment in the form of constructive discharge. (ECF No. 79 ¶¶ 17, 19, 21,

23, 27; ECF No. 104 at 2, 4–11.)

submits he has provided sufficient evidence to support his claims of constructive discharge. (Id. at

8–9.)

In reply, Defendants assert Plaintiff fails to cite to any factual support for his allegations.

(ECF No. 107 at 1.) Defendants note Plaintiff, in opposition to their motion for summary judgment,

make “references to a conclusory, self-serving certification that merely echoes his Second

Amended Complaint.” (Id.) Defendants argue Plaintiff’s conclusory, self-serving statements

cannot defeat their motion for summary judgment. (Id. at 3–4.) Defendants reiterate Plaintiff

cannot establish a prima facie case of discrimination. (Id. at 4–9.)

Under the McDonnell Douglas framework, the Court first looks to whether Plaintiff has

established a prima facie case. Here, it is undisputed Plaintiff satisfies the first two factors for

establishing a prima facie case of race discrimination because: Plaintiff identifies his race as

African American (ECF No. 104-2 ¶ 1); and Plaintiff was qualified for his employment as he was

a skilled salesman (ECF No. 99-1 ¶¶ 28, 37, 46–47.) In the First Count of the Second Amended

Complaint, Plaintiff asserts he was constructively discharged by YourLifeRx and Millers of

Wyckoff in violation of Title VII. (ECF No. 79 ¶¶ 19–20.) Accordingly, the Court turns its

attention to Plaintiff’s argument he suffered an adverse employment action because he was

constructively discharged and whether the constructive discharge “occurred under circumstances

that give rise to an inference of unlawful discrimination.” Rhoden, 749 F. App’x at 88.

“A constructive discharge constitutes an ‘adverse employment action’ for purposes of Title

VII.” Lombard v. N.J. Dep’t of Transp., Civ. A. No. 18-01319, 2018 WL 5617553, at *7 (D.N.J.

Oct. 30, 2018) (internal citation omitted). “The constructive-discharge doctrine contemplates a

situation in which an employer discriminates against an employee to the point such that his

working conditions become so intolerable that a reasonable person in the employee’s position

would have felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016) (internal

citation and quotations omitted). Title VII treats a resignation under these circumstances “as

tantamount to an actual discharge.” Id. “Intolerability . . . is assessed by the objective standard of

whether a ‘reasonable person’ in the employee’s position would have felt compelled to resign—

that is, whether he would have had no choice but to resign.” Tanganelli v. Talbots, Inc., 169 F.

App’x 124, 127 (3d Cir. 2006) (citing Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir.

1998)).

Here, the Court finds Plaintiff’s allegations are insufficient to satisfy the third and fourth

factors. The basis of Plaintiff’s employment discrimination claims are Plaintiff’s allegations of Mr.

Keough’s actions and statements. (ECF No. 79 ¶¶ 8–14; ECF No. 104-2 ¶¶ 4–6, 8 (citing ECF No.

104-1 ¶¶ 4–9).) As noted above, supra I.A.n.5, Plaintiff copied large portions of the allegations

from his Second Amended Complaint and used them in his Certification in Opposition to

Defendants’ Motion for Summary Judgment. (See ECF No. 79 ¶¶ 8–16; ECF No. 104-1 ¶¶ 4–9,

12–14.) The Court finds Plaintiff’s allegations are not sufficient evidence to establish constructive

discharge. See Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012)

(“[C]onclusory, self-serving affidavits are insufficient to withstand a motion for summary

judgment.”); Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 251–55 (3d Cir. 2007) (holding

plaintiff’s self-serving assertions were insufficient to create question of material fact to defeat

summary judgment).

Even if these allegations were adequately supported, the Court finds Defendants are

entitled to summary judgment. A reasonable factfinder could not find Plaintiff’s working

conditions were so “intolerabl[e]” such that Plaintiff “had no choice but to resign,” Tanganelli,

169 F. App’x at 127, because Plaintiff voluntarily resigned (Claude Thomas Dep. 141:10–142:13).

Indeed, Plaintiff initially did not mention discrimination was part of the reason he refused to take

the offered position. (Id. 140:21–24.) Further, the Court notes Plaintiff presented a counterproposal

to Mr. Keough consisting of a higher salary and commission as well as no non-compete agreement.

(Id. 130:11–131:23.) Therefore, if Plaintiff was potentially willing to remain employed for the

right compensation, the Court finds Plaintiff’s conditions were not sufficiently intolerable to result

in constructive discharge.

Based on the foregoing, the Court also finds Plaintiff has failed to present “circumstantial

evidence that otherwise shows a causal nexus between his membership in a protected class and the

adverse employment action.” Greene, 557 F. App’x at 195. The allegations cited by Plaintiff in

support of his claims are insufficient to raise a genuine issue of material fact because Plaintiff has

not shown his race influenced YourLifeRx and Millers of Wyckoff’s decision to offer him another

position. Jasmin v. N.J. Econ. Development Auth., Civ. A. No. 16-1002, 2020 WL 3411171, at *8

(D.N.J. June 22, 2020) (providing that where there is no evidence of factual circumstances

surrounding the termination, or of the role race played in them, plaintiff's Title VII claim would

fail); Sagun v. Delta Air Lines, Inc., Civ. A. No. 168881, 2019 WL 1961330, at *4 (D.N.J. May 2,

2019) (holding that where there was no evidence to suggest plaintiff’s race had any bearing on the

alleged unfair distribution of work, plaintiff’s claim would not survive the motion for summary

judgment).

Even assuming, arguendo, Plaintiff’s allegations substantiated and established a prima

facie case of discrimination, the Court finds YourLifeRx and Millers of Wyckoff have articulated

a legitimate, nondiscriminatory reason for their actions in restructuring and offering Plaintiff the

position of Director of Sales and Marketing. Defendants assert there was a legitimate, non-

retaliatory reason for their decision to offer Plaintiff the position of Director of Sales and

Marketing and the accompanying salary decrease. (ECF No. 99-2 at 10–13.) YourLifeRx and

Millers of Wyckoff have met this “relatively light burden,” Fuentes, 32 F.3d at 763, by articulating

the following: Mr. Miller e-mailed Mr. Halpern and Mr. Keough regarding “dire” situations at the

store including a significant decline in prescription sales numbers which could be solved by

Plaintiff conducting “his most important role in marketing the company and specifically

compounding” because he was an effective salesman (ECF No. 99-1 ¶ 37 (citing Claude Thomas

Dep. 60:3–61:4, 97:16–98:2, 111:9–12; February 7, 2019 Correspondence)); YourLifeRx

“eliminat[ed] the [Front Manager] position to streamline [] operations” to address the “dire”

situations (ECF No. 99-1 ¶ 51 (citing May 2019 E-mail Chain; Claude Thomas Dep. 117:15–

119:10)); and Keough offered Plaintiff the position of Director of Sales and Marketing with “6.5%

commission on all new business tied directly to new doctors” that Plaintiff brought in with no cap

on the amount of the commission in order to “capitalize on [his] selling skill” (ECF No. 99-1 ¶¶

46–48 (citing Bennett Cert., Ex. 18, May 2019 E-mail Chain; Claude Thomas Dep. 117:15–

119:10)). Although not completely relevant to this analysis, the Court also notes co-workers

complained about Plaintiff’s in-store management on multiple occasions. (ECF No. 99-1 ¶¶ 22–

26 (citing Sept. 3, 2018 E-mail Chain; Claude Thomas Dep. 56:11–67:23); ECF No. 99-1 ¶ 40

(citing Mar. 28, 2019 E-Mail from Ms. Trahan; Claude Thomas Dep. 100:2–23).)

Continuing on with the McDonnell Douglas analysis, the Court finds Plaintiff has not set

forth persuasive arguments as to the alleged pretextual nature of Defendants’ reasoning for

restructuring and offering Plaintiff the position of Director of Sales and Marketing. Defendants

argue Plaintiff cannot establish pretext because their decision to restructure the business was

legitimate and non-discriminatory. (ECF No. 99-2 at 11–13.) In opposition, Plaintiff asserts the

issue of whether Defendants’ reasons for the “demotion” were pretextual should be decided by a

jury. (ECF No. 104 at 4.) Plaintiff contends Defendants’ motive for offering Plaintiff a position

with a lower salary was pretextual because the offer “followed his objections to racist remarks,

ageist remarks and his whistleblowing by, at the most, some five (5) months and the other extreme,

less than one month.”15 (Id. at 9.) Additionally, Plaintiff argues Defendants “cannot empirically

substantiate their claim of business necessity.” (Id. at 10.) In reply, Defendants reiterate Plaintiff

cannot prove pretext because Plaintiff has failed to rebut Defendants’ legitimate non-pretextual

reasons for its business decision. (ECF No. 107 at 8–9.)

“Pretext is not shown by evidence that the employer’s decision was wrong or mistaken,

since the factual dispute at issue is whether discriminatory animus motivated the employer not

whether the employer is wise, shrewd, prudent, or competent.” Kautz v. Met-Pro Corp., 412 F.3d

463, 467 (3d Cir. 2005) (internal citation and quotations omitted). “The question is not whether

the employer made the best or even a sound business decision; it is whether the real reason is

discrimination.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (internal

citation and quotations omitted).

As held above, Plaintiff’s allegations of racist remarks are insufficient circumstantial

evidence to defeat a motion for summary judgment. See Gonzalez, 678 F.3d at 263; Jiminez, 503

F.3d at 251–55. Even if racist remarks were made, Plaintiff has not demonstrated that

discrimination was the reason he was “demoted,” therefore Plaintiff has failed to satisfy his burden

of establishing pretext. See Keller, 130 F.3d at 1109.

Further, it is somewhat perplexing for Plaintiff to contend the restructuring and

streamlining of YourLifeRx was pretextual when Plaintiff submitted an agenda plan that would

15 The Court does not find Plaintiff’s temporal proximity arguments persuasive. See Flear v.

Glacier Garlock Bearings, 159 F. App’x 390, 393 (3d Cir. 2005) (finding no sufficient temporal

connection between complaints and subsequent termination two months later).

have saved $300,000.00 in operation costs by reducing employee hours and salaries, among other

proposals. (ECF No. 99-1 ¶¶ 31–32 (citing Bennett Cert., Ex. 11, December 29, 2018

Correspondence and Agenda Plan; Claude Thomas Dep. 80:5–82:25).) Therefore, the Court does

not “(1) disbelieve [Defendants’] articulated legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause of

[Defendants’] action.’” Jackson, 431 F. App’x at 165.

Accordingly, the Court finds summary judgment in favor of YourLifeRx and Millers of

Wyckoff is warranted as to Plaintiff’s Title VII Claim (First Count).

2. Summary Judgment in Favor of Defendants Is Warranted as to

Plaintiff’s NJLAD Claim (Second Count)

In the Second Count of the Second Amended Complaint, Plaintiff alleges Defendants

violated the NJLAD. (ECF No. 79 ¶¶ 21–22.) Plaintiff alleges, in pertinent part:

Plaintiff was constructively discharged by Defendants Halpern and

Keough, who were aiding and abetting each other as well as

Defendants Millers of Wyckoff and/or YourLifeRx because of his

race and/or age. Defendant Miller also aided and abetted Defendant

Keough in creating a working environment that was hostile to

Plaintiff because of his race and age.

(Id. ¶ 21.)

Defendants contend “courts apply a similar analysis to discrimination claims brought

pursuant to Title VII, the ADEA, and the [NJ]LAD.” (ECF No. 99-2 at 5). In opposition, Plaintiff

submits he has a presented a prima facie case of a hostile work environment. (ECF No. 104 at 11.)

In reply, Defendants assert they are entitled to summary judgment because Plaintiff’s hostile work

environment claim fails since their alleged conduct was not sufficiently severe or pervasive. (ECF

No. 107 at 14–19.)

The NJLAD makes it unlawful for an employer “to discriminate against [an employee] in

compensation or in terms, conditions or privileges of employment.” N.J. Stat. Ann. § 10:5-12(a).

On the merits, “courts employ the same framework and standard of review when analyzing claims

under Title VII and NJLAD.” Behrens v. Rutgers Univ., Civ. A. No. 94-358, 1996 WL 570989,

at *4 (D.N.J. Mar. 29, 1996) (citations omitted); see also Abramson v. William Paterson Coll., 260

F.3d 265, 282 n.13 (3d Cir. 2001) (“Under the NJLAD and Title VII, the analysis is essentially the

same.”); Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 842 (3d Cir. 2016) (The Third Circuit’s

“discrimination inquiry is the same for claims filed under Title VII and the NJLAD as the New

Jersey statute borrows the federal standard set forth in McDonnell Douglas.”) (citing Armstrong

v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 249 (3d Cir. 2006)).

Accordingly, the Court will adopt the McDonnell Douglas burden-shifting framework

from Section III.A.1, supra, for the Title VII claim in analyzing Plaintiff’s NJLAD claim. As

discussed, summary judgment on Plaintiff’s Title VII claim (First Count) is warranted, and

therefore the same conclusion applies to Plaintiff’s NJLAD claim (Second Count) asserted against

all Defendants.

However, as Plaintiff did not raise a claim of hostile work environment16 in his Title VII

claim (First Count), but did raise the claim in the NJLAD claim (Second Count) (ECF No. 79 ¶

21), the Court will also address this argument. A prima facie showing of a hostile work

16 The Court notes “[t]here are subtle but discernible differences between the standard for a hostile

work environment and the standard for constructive discharge.” Shepherd v. Hunterdon

Developmental Ctr., 803 A.2d 611, 627 (N.J. 2002). “[A] constructive discharge claim requires

more egregious conduct than that sufficient for a hostile work environment claim.” Id. at 628

(internal citation omitted). “[This] standard envisions a sense of outrageous, coercive and

unconscionable requirements,” id. (internal citation and quotations omitted), whereas “[t]he hostile

work environment claim requires severe or pervasive conduct that objectively alters the conditions

of employment and is hostile or abusive,” id. at 627–28.

environment requires “discriminatory intimidation, ridicule, and insult, that is sufficiently severe

or pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.” Nat’l R.R. Passenger Corp., 536 U.S. at116 (internal citation and quotations

omitted). “To determine whether an environment is hostile, a court must consider the totality of

the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance.’” Mandel v. M & Q Packaging Corp., 706 F.3d

157, 168 (3d Cir. 2013) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

“[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)

will not amount to discriminatory changes in the terms and conditions of employment.” Faragher

v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation and quotations omitted).

Therefore, “[t]he mere utterance of an epithet, joke, or inappropriate taunt that may cause offense

does not sufficiently affect the conditions of employment to implicate . . . liability.” Weston v.

Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001).

The Court finds Plaintiff’s assertions related to the alleged hostile work environment (see

ECF No. 79 ¶¶ 8–16; ECF No. 104-1 ¶¶ 4–9, 12–14) “are insufficient to withstand a motion for

summary judgment.” Gonzalez, 678 F.3d at 263. Even if Plaintiff’s allegations were accepted as

true, the Court finds these assertions are not “sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working environment,” Nat’l R.R. Passenger

Corp., 536 U.S. at 116, for the same reasoning as discussed in relation to Plaintiff’s claim of

constructive discharge, supra, III.A.1. A factfinder could not reasonably conclude that Plaintiff’s

work environment “permeated with discriminatory intimidation, ridicule, and insult.” Id.

Additionally, Plaintiff alleges Mr. Miller, Mr. Halpern, and Mr. Keough are individually

liable under an aiding-and-abetting theory. (See ECF No. 79 ¶ 21.) Defendants assert Plaintiff’s

claim for individual liability as to Mr. Miller, Mr. Halpern, and Mr. Keough fails. (ECF No. 99-2

at 17–22.) Plaintiff does not address these arguments in his opposition. (See generally ECF No.

104.) Therefore, Defendants are entitled to judgment as a matter of law as Plaintiff abandoned

these claims since he failed to substantively respond to Defendants’ arguments. See McCarthy v.

Int’l Ass’n of Machinists & Aero. Workers, 2021 WL 5766569, at *2 n.3 (3d Cir. Dec. 6, 2021)

(“Plaintiffs abandoned their claims . . . by omitting any reference to them in their opposition to

Defendant’s motion for summary judgment.”); see also Resolution Trust Corp. v. Dunmar Corp.,

43 F.3d 587, 599 (11th Cir. 1995) (“Grounds alleged in the complaint but not relied upon in

summary judgment are deemed abandoned.”); Carroll v. Lancaster Cnty., 301 F. Supp. 3d 486,

511–12 (E.D. Pa. 2018) (same).

Assuming Plaintiff had addressed his claims of individual liability under an aiding-and-

abetting theory, the Court notes the NJLAD makes it unlawful “[f]or any person, whether an

employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts

forbidden under [the NJLAD], or to attempt to do so.” N.J. Stat. Ann. § 10:5-12(e). Liability for

aiding and abetting under the NJLAD has no counterpart in Title VII. See Cortes v. Univ. of Med.

& Dentistry, 391 F. Supp. 2d 298, 314 (D.N.J. 2005) (“While the Third Circuit has clearly

foreclosed any possibility of individual liability under Title VII, the NJLAD does contain a

separate provision which expressly contemplates individual liability for those who ‘aid or abet’ an

employer's unlawful employment actions.” (citing Hurley v. Atl. City Police Dep’t, 174 F.3d 95,

126 (3d Cir. 1999))). Therefore, Plaintiff’s NJLAD aiding and abetting claims must be analyzed

separately from Title VII’s legal framework.

“The NJLAD does not provide for individual liability for aiding and abetting if the

employer is not found liable.” Tourtellotte, 636 F. App’x at 856 (citing Cicchetti v. Morris Cty.

Sheriff’s Off., 947 A.2d 626, 645 (N.J. 2008)); see also Jackson v. Del. River & Bay Auth., Civ. A.

No. 99-3185, 2001 WL 1689880, at *22 (D.N.J. Nov. 26, 2001) (“If the NJLAD does not apply to

the employer [ ], then no individual aiding and abetting liability may be found.”). Here, Plaintiff

has a NJLAD claim against YourLifeRx and Millers of Wyckoff that has not survived Defendants’

Motions for Summary Judgment for the reasons stated above. Therefore, Plaintiff is not allowed

to pursue a NJLAD aiding and abetting claim against their employees.

Accordingly, the Court finds summary judgment in favor Defendants is warranted as to

Plaintiff’s NJLAD Claim (Second Count).

3. Summary Judgment in Favor of YourLifeRx and Millers of Wyckoff Is

Warranted as to Plaintiff’s ADEA Claim (Third Count)

In the Third Count of the Second Amended Complaint, Plaintiff alleges he was

constructively discharged by YourLifeRx and Millers of Wyckoff because of his age in violation

of the ADEA. (ECF No. 79 ¶ 23–24.) The parties do not devote substantial briefing to this claim.

(See generally ECF Nos. 99-2, 104, 107.)

The ADEA makes it unlawful for an employer to “fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §

623(a)(1). It is also unlawful for the employer to “limit, segregate, or classify” employees in a way

that would “deprive or tend to deprive any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such individual’s age.” Id. §

623(a)(2); O’Malley v. Fairleigh Dickinson Univ., Civ. A. No. 10-6193, 2014 WL 67280, at *8

(D.N.J. Jan. 7, 2014).

A claim for discrimination under the ADEA is evaluated by a three-step test. See Smith v.

City of Allentown, 589 F.3d 684, 689–91 (3d Cir. 2009). This test, developed in the Title VII

context in McDonnell Douglas, requires the plaintiff to first demonstrate a prima facie case of

discrimination. Smith, 589 F.3d at 689; see McDonnell Douglas, 411 U.S. 792. If shown, “the

burden of production shifts to the employer to identify a legitimate non-discriminatory reason for

the adverse employment action.” Smith, 589 F.3d at 690 (3d Cir. 2009). “If the employer does so,

the burden of production returns to the plaintiff to demonstrate that the employer's proffered

rationale was a pretext for age discrimination.” Id. The plaintiff always bears the burden of

persuasion. Id. Further, part of the plaintiff’s burden of persuasion involves proving “that age was

the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs., 557 U.S. 167,

176–77 (2009).

Accordingly, the Court will adopt the McDonnell Douglas burden-shifting framework

from Section III.A.1, supra, for the Title VII claim in analyzing Plaintiff’s ADEA claim. As

discussed, summary judgment on Plaintiff’s Title VII claim (First Count) in favor of Defendants

is warranted therefore the same conclusion applies to Plaintiff’s ADEA claim (Third Count)

asserted against YourLifeRx and Millers of Wyckoff. Defendants’ motion on Plaintiff’s Count

Three is granted.

4. Summary Judgment in Favor of Defendants Is Warranted as to

Plaintiff’s CEPA Claim (Fourth Count)

In the Fourth Count of the Second Amended Complaint, Plaintiff alleges Defendants

violated the CEPA when they constructively discharged him after he objected to illegal kickbacks.

(ECF No. 79 ¶¶ 25–28.)

Defendants argue Plaintiff’s CEPA claim fails because Plaintiff cannot establish “he

complained about or objected to anything that he reasonably believed violated any law, rule,

regulation or clear mandate of public policy.” (ECF No. 99-2 at 14.) Defendants submit Mr.

Qureshi’s alleged kickbacks were the only issue Plaintiff raised during his employment. (Id. at 15.)

Further, Defendants contend the record evidence does not support the assertion that Plaintiff had

a reasonable belief the sales representative relationship with Mr. Qureshi consisted of improper

kickbacks because Plaintiff and Ms. Ramasamy were responsible for establishing this sales

representative relationship consisting of 15% of the sales that he brings and reporting his sales

commissions on an IRS Form 1099. (Id.) Defendants assert the circumstances leading to Plaintiff’s

“voluntary resignation” in May 2019 refute the contention that Plaintiff’s resignation was

influenced by Defendants’ actions. (Id. at 15–16.)

In opposition, Plaintiff asserts summary judgment is not appropriate because a reasonable

jury could find Plaintiff’s “demotion” was retaliation for complaints about the kickback scheme.

(ECF No. 104 at 4.) Additionally, Plaintiff argues he has established a prima facie case of CEPA

retaliation. (Id. at 11–13.) Plaintiff contends there was a causal connection because there was

temporal proximity between his complaints and the adverse employment action. (Id. at 12–13.)

In reply, Defendants reiterate Plaintiff’s CEPA claim fails because the record evidence

does not support the contention that Plaintiff had a reasonable belief the sales representative

relationship with Mr. Qureshi was illegal. (ECF No. 107 at 11.) Defendants submit the

circumstances leading up to Plaintiff’s voluntary resignation rebut Plaintiff’s CEPA claim. (Id. at

11–12.)

The CEPA was enacted “to protect and encourage employees to report illegal or unethical

workplace activities and to discourage public and private sector employees from engaging” in such

activity. Abbamont v. Piscataway Twp. Bd. of Educ., 650 A.2d 958, 971 (N.J. 1994). To succeed

on a CEPA claim, a plaintiff must prove four elements: (1) that the plaintiff reasonably believed

the employer’s conduct violated a law or regulation; (2) that the plaintiff performed “whistle-

blowing activity” as defined in the CEPA; (3) that an adverse employment action has been taken

against him; and (4) that the whistle-blowing activity caused such adverse employment action. See

Kolb v. Burns, 727 A.2d 525, 530 (N.J. Super. Ct. App. Div. 1999); Dzwonar v. McDevitt, 828

A.2d 893, 900 (N.J. 2003). The CEPA covers employee complaints about activities the employee

reasonably believes are: (i) in violation of a specific statute or regulation; (ii) fraudulent or

criminal; or (iii) incompatible with policies concerning public health, safety or welfare or the

protection of the environment. See Est. of Roach v. TRW, Inc., 754 A.2d 544, 550 (N.J. 2000).

However, “CEPA does not require that the activity complained of . . . be an actual violation of a

law or regulation, only that the employee ‘reasonably believes’ that to be the case.” Id. at 552.

To establish the element of causation, a plaintiff must demonstrate that “a causal

connection exists between the whistle-blowing activity and the adverse employment action.”

Dzwonar, 828 A.2d at 900. A plaintiff must show that the “retaliatory discrimination was more

likely than not a determinative factor in the decision.” Donofry v. Autotote Sys., Inc., 795 A.2d

260, 271 (N.J. Super. Ct. App. Div. 2001) (citations omitted). Once a plaintiff has established a

prima facie case under the CEPA, courts employ the burden-shifting analysis that is used in federal

discrimination cases involving “pretext” claims. Blackburn v. United Parcel Servs., Inc., 179 F.3d

81, 92 (3d Cir. 1999).

In the Second Amended Complaint, Plaintiff alleges Mr. Miller: would “recycle” the drugs

customers placed in a drop box; returned medications which were not picked up by customers back

to inventory without reversing insurance billing; asked Plaintiff to falsify refrigerator temperature

logs; had non-pharmacy staff involved in filling prescriptions; would provide customers with

additional pills before they were due for a refill; and engaged in “kickbacks” with a doctor’s office.

(ECF No. 79 ¶¶ 15–16; ECF No. 104-2 ¶¶ 12–14 (citing ECF No. 104-1 ¶¶ 12–14).) In his

opposition, Plaintiff relies solely on the kickback allegation to establish his CEPA claim.

Therefore, the Court finds Plaintiff’s other allegations and claims are abandoned. See Carroll, 301

F. Supp. 3d at 511–12 (finding a claim abandoned when not addressed in brief in opposition to

summary judgment).

Even though the Court is not necessarily persuaded by Defendants’ arguments on this

claim17 and there is evidence of Plaintiff reporting the issue of alleged kickbacks to Mr. Keough,

Mr. Miller, and Mr. Halpern (ECF No. 99-1 ¶ 41 (citing Apr. 2019 E-Mail Chain)), the Court will

again adopt the McDonnell Douglas burden-shifting framework from Section III.A.1, supra, for

the Title VII claim in analyzing Plaintiff’s CEPA claim. Defendants have satisfied their burden of

articulating a legitimate reason for the alleged adverse employment action, see supra, III.A.1,

whereas Plaintiff has not satisfied his burden of establishing that Defendants’ “real reason” for the

alleged retaliation, in the form of the alleged constructive discharge, was Plaintiff’s objection to

the alleged kickback scheme. See Keller, 130 F.3d at 1109. Therefore, summary judgment in

Defendants’ favor is warranted on Plaintiff’s CEPA claim (Fourth Count).

17 The Court does not agree with Defendants’ assertion that Plaintiff was responsible for

establishing the sales representative relationship with Mr. Qureshi therefore Plaintiff could not

have a reasonable belief that the sales representative arrangement was illegal. (ECF No. 99-2 at

15; ECF No. 1-7 at 11.) Based on a detailed review of the e-mails provided, the Court notes

Plaintiff did not send any of the subject e-mails stating Mr. Qureshi would receive “15% of the

sales that he brings,” and report his sales commissions on an IRS Form 1099, rather Ms. Ramasamy

sent the e-mails and Plaintiff was merely included on the e-mail chain. (Bennett Cert., Ex. 17, 2014

and 2015 e-mails re: Zahid Qureshi.) It is a stretch to conclusively say Plaintiff established the

agreement with Mr. Qureshi therefore he could not have a reasonable belief that the arrangement

was illegal.

B. Plaintiff’s Cross-Motion for Summary Judgment18

1. Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim

for NJLAD Claims Brought in Bad Faith (First Counterclaim) Is

Not Warranted

Plaintiff submits Defendants’ First Counterclaim is premature because there has not been

an adjudication of Plaintiff’s NJLAD claim. (ECF No. 102-4 at 2.) Specifically, Plaintiff asserts

the Court has not decided whether Plaintiff’s NJLAD claim lacked merit or was commenced for

an illegitimate purpose. (Id.)

In opposition, Defendants assert Plaintiff’s allegations are insufficient to preclude a finding

of bad faith because Plaintiff has not presented evidence to support his NJLAD claim. (ECF No.

107 at 20.) Defendants submit there is a question of fact as to whether Plaintiff’s NJLAD claim

18 As Defendants note (ECF No. 107 at 19 n.7), Plaintiff’s Cross-Motion does not seek summary

judgment on either Defendants’ fifth counterclaim for Conversion of Property or the sixth

counterclaim for Breach of Confidentiality Agreements in his moving papers (see generally ECF

Nos. 102-4, 108). Therefore, the Court does not address Defendants’ claims for Conversion of

Property (Fifth Counterclaim) and Breach of Confidentiality Agreements (Sixth Counterclaim).

These Counterclaims remain active and pending. (ECF No. 82 (Countercls. ¶¶ 15–31).) It is clear

to the Court that Plaintiff, in preparing his briefing, considered the YourLifeRx Defendant’s

Answer and Counterclaims to the Amended Complaint filed on February 16, 2021 (ECF No. 25)

but not Defendants’ Answer and Counterclaims to the Second Amended Complaint filed on

January 12, 2022 (ECF No. 82). There are multiple inconsistencies with Plaintiff’s arguments

raised in his briefing and Defendants’ Answer to the Second Amended Complaint. (See generally

ECF Nos. 82, 102-4, 108). At the risk of being superfluous, the Court will list these inconsistencies

throughout the Opinion. For instance, the Court presumes Plaintiff did not address Defendants’

claims for Conversion of Property (Fifth Counterclaim) and Breach of Confidentiality Agreements

(Sixth Counterclaim) contained in the Answer to the Second Amended Complaint (ECF No. 82

(Countercls. ¶¶ 15–31)), because YourLifeRx Defendants’ Answer to the Amended Complaint did

not raise claims for Conversion of Property and/or Breach of Confidentiality Agreements (see

generally ECF No. 25). Further, Plaintiff entitles “Point V” of his moving brief as “THERE IS NO

FIFTH COUNT PLEADED.” (ECF No. 102-4 at 5.) The YourLifeRx Defendants’ Answer to the

Amended Complaint did not contain a Fifth Counterclaim and skipped from the Fourth

Counterclaim, a claim for Malicious Prosecution (ECF No. 25 (Countercls. ¶¶ 11–27)), to the Sixth

Counterclaim, a claim for Trespass to Property (id. 28–30). Whereas Defendants’ Answer to the

Second Amended Complaint filed on January 12, 2022, did, in fact, raise a Fifth Counterclaim for

Conversion of Property. (ECF No. 82 (Countercls. ¶¶ 15–27).)

was brought in bad faith because Plaintiff was willing to continue his employment with

YourLifeRx as long as his salary did not decrease, and he was not required to sign a non-compete

agreement. (Id. at 22.) In the alternative, Defendants request, if the Court were to grant summary

judgment on the First and Fourth Counterclaims on the basis of them being untimely, then

Defendants should be allowed to reinstate these causes of action if Defendants are deemed the

prevailing party. (Id. at 20 n.8.)

In reply, Plaintiff reiterates Defendants’ First Counterclaim is premature. (ECF No. 108 at

1.) Plaintiff contends N.J. Stat. Ann. § 10:5-27.1 allows the award of counsel fees to a prevailing

Defendant in a NJLAD action, but only if the court determines the action was brought in “bad

faith.” (Id.)

As part of their Answer to the Second Amended Complaint, Defendants raise a

counterclaim for attorneys’ fees under a theory of NJLAD Claims Brought in Bad Faith. (ECF No.

82 (Countercls. ¶¶ 1–2).) Under the NJLAD, “the prevailing party may be awarded a reasonable

attorney’s fees as part of the cost, provided however, that no attorney’s fees shall be awarded

unless there is a determination that the charge was brought in bad faith.” N.J. Stat. Ann. § 10:5-

27.1. Black’s Law Dictionary defines bad faith as “[d]ishonesty of belief, purpose, or motive.”

Black’s Law Dictionary (11th ed. 2019).

The NJLAD does not expressly define bad faith and the Supreme Court of New Jersey has

not “addressed the meaning of ‘bad faith’ for purposes of N.J. Stat. Ann. 10:5-27.1.” Michael v.

Robert Wood Johnson Univ. Hosp., 940 A.2d 310, 313 (N.J. Super. Ct. App. Div. 2008). In a

different context, the Supreme Court of New Jersey held “bad faith denotes a reckless disregard of

purposeful obliviousness of the known facts.” N.J. Title Ins. v. Caputo, 748 A.2d 507, 514 (N.J.

2000). “The award of attorneys’ fees to a prevailing defendant is not routine and should only be

sparingly awarded.” Hurley v. Atl. City Police Dept., 933 F. Supp. 396, 427 (D.N.J. 1996) (citing

Quiroga v. Hasbro, Inc., 934 F.2d 497 (3d Cir. 1991)). A trial court’s granting of summary

judgment in favor of a defendant on a plaintiff’s NJLAD claim does not necessarily entitle the

defendant to attorney’s fees. See Mandel v. UBS/PaineWebber, Inc., 860 A.2d 945, 961–962 (N.J.

Super. Ct. App. Div. 2004).

As discussed, supra III.A.2, the Court has held summary judgment in favor of Defendants

is warranted as to Plaintiff’s employment discrimination claim under the NJLAD. In opposition to

Defendants’ motion for summary judgment, Plaintiff did not provide further evidence of his

allegations and instead relied almost entirely on allegations from his Second Amended Complaint.

(See ECF No. 79 ¶¶ 8–16; ECF No. 104-1 ¶¶ 4–9, 12–14.) Further, Plaintiff’s NJLAD claim was

contradicted, at the outset, by his voluntary resignation, and apparent willingness to continue

employment with YourLifeRx and Millers of Wyckoff as long as he was given appropriate

compensation. (ECF No. 99-1 ¶¶ 49, 53)

Although it is not clear whether Defendants have satisfied their burden of establishing bad

faith,19 the Court finds the foregoing creates a genuine dispute as to whether Plaintiff brought his

NJLAD claims in bad faith. Accordingly, the portion of Plaintiff’s Cross-Motion seeking summary

judgment on Defendants’ First Counterclaim is denied.

19 The Court notes Defendants, in the Counterstatement of Material Facts in Opposition to

Plaintiff’s Cross-Motion for Summary Judgment, raise the unsupported allegation that “Plaintiff,

after recognizing that litigation was imminent due to his misappropriation and breach of his

agreement and confidentiality obligations to Defendant[s], filed his Complaint.” (ECF No. 107-5

¶ 42.)

2. Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim

for Frivolous Complaint (Second Counterclaim) Is Not Warranted20

Plaintiff contends Defendants failed to show Plaintiff was acting in bad faith in filing this

lawsuit because even if his allegations are insufficient to prevail, that does not entitle Defendants

to damages under a frivolous complaint theory. (ECF No. 102-4 at 3–5.) In opposition, Defendants

argue there is support in the record for Defendants’ Frivolous Complaint counterclaim because

Plaintiff admitted he did not initially state discrimination, retaliation, or a hostile work

environment as one of the reasons for his voluntary resignation. (ECF No. 107 at 23.) In reply,

Plaintiff argues an employee is not required to give his or her employer any reason as to why he

or she feels resignation is the only viable option. (ECF No. 108 at 1.)

Defendants also raise a counterclaim alleging Plaintiff filed a frivolous complaint therefore

Defendants are entitled to attorneys’ fees pursuant to N.J. Stat. Ann. § 2A:15-59.1. (ECF No. 82

(Countercls. ¶¶ 3–6).) N.J. Stat. Ann. § 2A15-59.1 provides “[a] party who prevails in a civil action

. . . may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds

at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim

or defense of the nonprevailing person was frivolous.” N.J. Stat. Ann. § 2A15-59.1. A claim is

frivolous, if the Court finds: “(1) [t]he complaint, counterclaim, cross-claim or defense was

commenced, used or continued in bad faith, solely for the purpose of harassment, delay or

malicious injury”; and/or “(2) [t]he nonprevailing party knew, or should have known, that the

complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity

20 This Court has previously granted reasonable attorney’s fees for the prevailing party in a Title

VII claim pursuant to 42 U.S.C. § 2000e-5(k). Prioli v. Cnty. of Ocean, Civ. A. No. 18-cv-00256,

2021 WL 4473159, at *24–26 (D.N.J. Sept. 30, 2021) (holding prevailing defendants were entitled

to reasonable attorney’s fees because the plaintiff’s claims against the individual defendants were

without arguable legal basis). Here, Defendants do not seek attorney’s fees pursuant to 42 U.S.C.

§ 2000e-5(k), but rather N.J. Stat. Ann. § 2A:15-59.1. The analysis is, however, nearly identical.

and could not be supported by a good faith argument for an extension, modification or reversal of

existing law.” N.J. Stat. Ann. § 2A15-59.1(b). Further, if a prevailing party’s claim of frivolity “is

based on the absence of ‘a reasonable basis in law or equity’ for the plaintiff’s claim and the

plaintiff is represented by an attorney, an award cannot be sustained if the ‘plaintiff did not act in

bad faith in asserting’ or pursuing the claim.” Ferolito v. Park Hill Ass’n, Inc., 975 A.2d 473, 478

(N.J. Super. Ct. App. Div. 2009) (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 626

A.2d 425, 426 (N.J. 1993)).

“The burden of proving that the non-prevailing party acted in bad faith is on the party who

seeks fees and costs pursuant to N.J. Stat. Ann. § 2 A:15-59.1.” Ferolito, 975 A.2d at 478 (internal

citations and quotations omitted). This “[s]tatute is interpreted restrictively,” Bove v. AkPharma

Inc., 213 A.3d 948, 964 (N.J. Super. Ct. App. Div. 2019) (internal citation omitted), because “the

right of access to the court should not be unduly infringed upon, honest and creative advocacy

should not be discouraged, and the salutary policy of the litigants bearing . . . their own litigation

costs, should not be abandoned.” Gooch v. Choice Ent. Corp., 809 A.2d 154, 156 (N.J. Super. Ct.

App. Div. 2002) (internal citation and quotations omitted).

Based on the reasoning provided above, supra III.B.1, the Court holds that although it is

not clear whether Defendants have satisfied their burden under N.J. Stat. Ann. § 2A:15-59.1, the

Court finds Defendants have created a genuine dispute as to whether “[t]he complaint . . . was

commenced, used or continued in bad faith.” N.J. Stat. Ann. § 2A15-59.1(b)(1). Therefore, the

portion of Plaintiff’s Cross-Motion seeking summary judgment on Defendants’ Second

Counterclaim is denied.

3. Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim

for Malicious Abuse of Legal Process (Third Counterclaim) Is

Warranted

Plaintiff asserts summary judgment is warranted on Defendants’ third counterclaim for

malicious abuse of legal process because Defendants’ basis for this claim is solely Plaintiff’s

commencement of this action. (ECF No. 102-4 at 5.) In opposition, Defendants assert Plaintiff’s

initiation and conduct throughout this lawsuit has constituted a malicious abuse of process because

“Plaintiff initiated the civil action only after learning that Defendants intended to take legal action

against him for misappropriating their confidential, proprietary, and trade secret information and

breaching his agreement and confidentiality obligations to defendants.” (ECF No. 107 at 24.)

Further, Defendants contend “Plaintiff initiated this action, based on no evidence, with the hopes

that Defendants would not pursue any civil claims against him and in doing so, triggered the

inevitable ‘chain of events’ that results from the filing of a civil complaint; namely, the substantial

legal fees stemming therefrom.” (Id.) In reply, Plaintiff reiterates the commencement of this action

is Defendants’ sole basis for this counterclaim. (ECF No. 108 at 2.) Plaintiff further argues

Defendants have not alleged all of the elements of a malicious abuse of legal process claim. (Id.)

“The tort for malicious abuse of process lies not for commencing an improper action, but

for misusing or misapplying process after it is issued.” Hoffman v. Asseenontv.Com, Inc., 962 A.2d

532, 541 (N.J. Super. Ct. App. Div. 2009) (internal citation omitted). “Consequently, basic to the

tort of malicious abuse of process is the requirement that the defendant perform further acts after

issuance of process which represent the perversion or abuse of the legitimate purposes of that

process.” Baglini v. Lauletta, 768 A.2d 825, 832–33 (N.J. Super. Ct. App. Div. 2001 (internal

citation and quotations omitted).

Defendants’ allegations raised in the Third Counterclaim (ECF No. 82 (Countercls. ¶¶ 7–

10)) and arguments raised in opposition to Plaintiff’s Cross-Motion for Summary Judgment (ECF

No. 107 at 23–24) are predicated on Plaintiff’s actions in “initiating” this action. Accordingly, by

focusing on “not what prompted the suit but what action plaintiff engaged in after the

commencement of the action,” Hoffman, 962 A.2d at 541, the Court finds Defendants have failed

to properly allege and/or argue their claim for malicious abuse of legal process. Accordingly, the

portion of Plaintiff’s Cross-Motion seeking summary judgment as to the Third Counterclaim is

granted.

4. The Court, Sua Sponte, Dismisses Defendants’ Counterclaim for

Malicious Prosecution (Fourth Counterclaim)

Plaintiff argues the Court should dismiss Defendants’ fourth counterclaim for malicious

prosecution because this counterclaim is mislabeled, does not allege a cause of action, and there is

no evidence of any alleged misappropriation.21 (ECF No. 102-4 at 5.) Defendants do not address

Plaintiff’s arguments. (See generally ECF No. 107.) Instead, as noted above, supra III.B.1,

Defendants request that if the Court were to grant the portion of Plaintiff’s Cross-Motion seeking

summary judgment on their claim for Malicious Prosecution (Fourth Counterclaim) on the basis

of it being untimely, then Defendants should be allowed to reinstate this cause of action if

Defendants are deemed the prevailing party. (Id. at 20 n.8.)

Notwithstanding the parties’ arguments, the Court, sua sponte, finds Defendants’ Fourth

Counterclaim for Malicious Prosecution fails. “Malicious prosecution provides a remedy for harm

21 Point IV of Plaintiff’s moving brief is entitled “DEFENDANTS’ FOURTH COUNT IS

MISLABELED AND DOES NOT ALLEGE ANY CAUSE OF ACTION.” However, it was the

YourLifeRx Defendants’ Answer to the Amended Complaint which raised a mislabeled

counterclaim for Malicious Prosecution alleging misappropriation of proprietary and confidential

information. (ECF No. 25 (Countercls. ¶¶ 11–27).) Defendants’ claim for Malicious Prosecution

(Fourth Counterclaim) in their Answer to the Second Amended Complaint is not mislabeled. (ECF

No. 82 (Countercls. ¶¶ 11–14).)

caused by the institution or continuation of a criminal action that is baseless.” LoBiondo v.

Schwartz, 970 A.2d 1007, 1022 (N.J. 2009) (citing Earl v. Winne, 101 A.2d 535 (N.J. 1953)). This

is a civil matter therefore the Court finds dismissal of Defendants’ Fourth Counterclaim is

warranted.22 Therefore, the Court denies, as moot, the portion of Plaintiff’s Cross-Motion seeking

summary judgment on Defendants’ Fourth Counterclaim.

5. Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim

for Trespass to Property (Seventh Counterclaim) Is Warranted23

Plaintiff asserts summary judgment on the Seventh Counterclaim is warranted because

Defendants have not identified any property that Plaintiff absconded or destroyed. (ECF No. 102-

4 at 6.) In opposition, Defendants argue there are genuine issues of material fact as to Defendants’

claim for Trespass to Property because the record evidence demonstrates Plaintiff obtained

Defendants’ confidential and proprietary information to compete directly against Defendants.

22 It is entirely possible Defendant mislabeled their claim for Malicious Prosecution, albeit for

different reasons than Plaintiff asserts. To the extent Plaintiff argues the claim was mislabeled, that

argument is moot in light of the Court’s sua sponte dismissal. The Court notes there is a third

related action to malicious prosecution and malicious abuse of process, referred to as “[m]alicious

use of process [which] is essentially the analog used when the offending action in question is civil

rather than criminal.” LoBiondo, 970 A.2d at 1022 (internal citations omitted). The Supreme Court

of New Jersey has recognized these three, distinct torts as “a group of closely related torts that,

although ancient in origins, are treated with great caution because of their capacity to chill resort

to our courts by persons who believe that they have a criminal complaint or civil complaint against

another.” Id. Applying this restraint, the Court finds, even if Defendants had properly alleged a

claim for malicious use of process instead of malicious prosecution, it is likely summary judgment

would have been warranted.

23 “Point VI” of Plaintiff’s moving brief is entitled “DEFENDANTS HAVE FAILED TO

PRODUCE ANY EVIDENCE TO SUPPORT THE SIXTH COUNT.” (ECF No. 102-4 at 6.)

Similarly, “Point VI” of Plaintiff’s reply brief is entitled “THE SIXTH COUNT MUST BE

DISMISSED.” (ECF No. 108 at 3.) In these portions of Plaintiff’s briefs, Plaintiff addresses

Defendants’ counterclaim for Trespass to Property which is actually Defendants’ Seventh

Counterclaim. (ECF No. 82 (Countercls. ¶¶ 32–34).) In an effort to continue listing

inconsistencies, the Court notes the YourLifeRx Defendants’ Sixth Counterclaim raised, in their

Answer to the Amended Complaint, was Trespass to Property. (ECF No. 25 (Countercls. ¶¶ 28–

30).)

(ECF No. 107 at 24–25.) In reply, Plaintiff reiterates Defendants have failed to identify any

property that Plaintiff absconded or destroyed. (ECF No. 108 at 3.) Further, Plaintiff contends

Defendants merely raised speculative conjecture in opposition to this portion of his Cross-Motion.

(Id.)

In the Seventh Counterclaim, Defendants vaguely allege Trespass to Property. (ECF No.

82 (Countercls. ¶¶ 32–34).) Under New Jersey law, “a cognizable claim for trespass occurs ‘when

personal property, in the actual use of the owner, is injured or taken by a trespasser, so that the

owner is deprived of the use of it.’” Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 312 (D.N.J.

2009) (quoting Luse v. Jones, 39 N.J. 707, 709 (N.J. 1877)); see Barrett Fin. of N. Jersey, LLC v.

Creative Fin. Grp. of N.J., Civ. A. No. 13-5621, 2018 WL 3546196, at *8 n.9 (D.N.J. July 24,

2018) (“A trespass to chattel may be committed by ‘intentionally (a) dispossessing another of the

chattel, or (b) using or intermeddling with a chattel in the possession of another.’”

(quoting Exxonmobil Oil Corp. v. Wakile & Sons, Inc., Civ. A. No. 09-01265, 2009 WL 3818151,

at *3 (D.N.J. Nov. 13, 2009))). As Defendants do not assert they have been deprived of using the

confidential and proprietary information at issue, the Court finds basis to grant summary judgment

in favor of Plaintiff on Defendants’ Seventh Counterclaim. See Ferring Pharms. Inc., v. Watson

Pharms., Inc., Civ. A. No. 12-cv-05824, 2014 WL 12634303, at *6 (D.N.J. Aug. 4, 2014) (holding

dismissal of a claim for trespass to chattels, which alleged computer password evasion and

improper obtainment of a copy of a webcast seminar, was proper because pleading party had failed

to allege the deprivation element).

Further, Courts in this District have applied the Restatement (Second) of Torts, which

provides “like conversion, trespass to chattels requires tangible personal property over which one

can have physical control.” Barrett Fin., 2018 WL 3546196, at *11; see also iPurusa, LLC v. Bank

of N.Y. Mellon Corp., Civ. A. No. 22-966, 2023 WL 3072686, at *10 (D.N.J. Apr. 25, 2023)

(quoting Barrett Fin., 2018 WL 3546196, at *11)). Here, Defendants’ Counterclaim for Trespass

to Property also fails because the alleged confidential and proprietary information at issue,

including price lists and customer lists, is not tangible property.24 See Bellak v. Wells Fargo &

Co., Civ. A. No. 17-2757, 2017 WL 6496563, at *5 (D.N.J. Dec. 19, 2017) (citing Mu Sigma, Inc.

v. Affine, Inc., Civ. A. No. 12-1323, 2013 WL 3772724, at *11 (D.N.J. July 17, 2013) (“[C]lient

lists, pricing information and the like . . . are not considered tangible objects for the purposes of

conversion.”)); Barrett Fin., 2018 WL 3546196, at *11 (holding defendant was entitled to

summary judgment on plaintiff’s trespass to chattels claim because data files are intangible);

iPurusa, 2023 WL 3072686, at *10 (finding computer software is not tangible property in the

context of a trespass to chattels claim). Accordingly, the Court finds the portion of Plaintiff’s

Cross-Motion seeking summary judgment on Defendants’ Seventh Counterclaim for Trespass to

Property is granted.

6. Summary Judgment in Favor of Plaintiff on Defendants’ Counterclaim

for Violation of the NJTSA (Eighth Counterclaim) Is Not Warranted

Plaintiff argues Defendants’ claim under the New Jersey Trade Secrets Act fails because

Defendants have not provided evidence of Plaintiff misappropriating trade secrets from Millers of

Wyckoff and/or YourLifeRx. (ECF No. 102-4 at 6.) In opposition, Defendants assert they have set

forth genuine issues of material fact as to their claim under the New Jersey Trade Secrets Act

24 The Court is not persuaded by Defendants’ reliance on Capanna v. Tribeca Lending Corp., Civ.

A. No. 06-5314, 2009 WL 900156, at *10 (D.N.J. Mar. 31, 2009). (ECF No. 107 at 24–25.) In

Capanna, the Court found summary judgment was appropriate on a defendant/counterclaimant

employer’s claim for “trespass” because the plaintiff/counterclaim-defendant’s removal of a loan

application file that she was assigned to overwrite violated a confidentiality agreement. 2009 WL

900156, at *10. Although the facts of Capanna are analogous, the Court notes no other Courts in

this District have cited to or adopted this particular holding.

because the record demonstrates Plaintiff misappropriated YourLifeRx and Millers of Wyckoff’s

confidential, proprietary, and trade secret information. (ECF No. 107 at 25.) Defendants argue the

information Plaintiff took is entitled to protection as confidential and proprietary property even if

the Court were to find the information does not rise to the level of a trade secret. (Id. at 29.) In

reply, Plaintiff submits Defendants have failed to identify trade secrets or the transmission of any

information from Millers of Wyckoff and/or YourLifeRx to any other entity such as Medicos.

(ECF No. 108 at 4.) Plaintiff submits Defendants “speculate rampantly about Plaintiff passing

along Miller’s proprietary information, and their pleadings make frequent allusions to such

conduct, but they have been unable to point to a single instance.” (Id.)

The NJTSA prohibits the “[a]ctual or threatened misappropriation” of a “trade secret.” N.J.

Stat. Ann. § 56:15-3. A “trade secret” is defined as “information” that:

(1) Derives independent economic value, actual or potential, from

not being generally known to, and not being readily ascertainable by

proper means by, other persons who can obtain economic value

from its disclosure or use; and

(2) Is the subject of efforts that are reasonable under the

circumstances to maintain its secrecy.

N.J. Stat. Ann. § 56:15-2. “Misappropriation” of a trade secret includes:

(1) Acquisition of a trade secret of another by a person who knows

or has reason to know that the trade secret was acquired by improper

means; or

(2) Disclosure or use of a trade secret of another without express or

implied consent of the trade secret owner by a person who:

(a) used improper means to acquire knowledge of the trade secret;

or

(b) at the time of disclosure or use, knew or had reason to know that

the knowledge of the trade secret was derived or acquired through

improper means; or

(c) before a material change of position, knew or had reason to know

that it was a trade secret and that knowledge of it had been acquired

through improper means.

Id. The NJTSA also provides “[a] person who misappropriates a trade secret shall not use as a

defense to the misappropriation that proper means to acquire the trade secret existed at the time of

the misappropriation.” N.J. Stat. Ann. § 56:15-5.

In New Jersey, “customer lists . . . have been afforded protection as trade secrets.” Lamorte

Burns & Co., Inc. v. Walters, 770 A.2d 1158, 1166 (N.J. 2001) (internal citations omitted). “Where

there is either a post-employment restrictive covenant or where the customer lists are confidential

and thus a trade secret, customer lists may be protected even after employment is terminated.” AYR

Composition, Inc. v. Rosenberg, 619 A.2d 592, 597 (N.J. Super. Ct. App. Div. 1993) (citing United

Bd. & Carton Corp. v. Britting, 160 A.2d 660 (N.J. Super. Ct. App. Div. 1960), certif. denied,

164 A.2d 379 (1960)). “[T]he names and addresses of its customers ‘are not open to and

ascertainable by everyone; they are the private information and property of the company.” AYR

Composition, Inc., 619 A.2d at 597.

Here, the Court finds there is a genuine dispute as to whether Plaintiff’s actions violated

the NJTSA. The Court notes the following facts and circumstantial evidence: Plaintiff formulated

pricing policies and generated lists of potential doctors and physicians (ECF No. 99-1 ¶ 17 (citing

Claude Thomas Dep. 49:9–51:3)); Plaintiff sent Millers of Wyckoff’s doctor list to his personal e-

mail (ECF No. 107-5 ¶ 10 (citing Jan. 3, 2019 Correspondence)); Plaintiff received an e-mail from

Mr. Bucher with a link to YourLifeRx’s compounding price list (ECF No. 107-5 ¶ 20 (citing

Claude Thomas Dep. 119:20–120:2; May 17, 2019 Correspondence from Mr. Bucher)); Plaintiff

received an e-mail from Ms. Gruenberg which contained an attachment of a price list for ED

medication (ECF No. 107-5 ¶ 22 (citing Claude Thomas Dep. 124:9–16; May 17, 2019

Correspondence from Ms. Gruenberg); Millers of Wyckoff and YourLifeRx’s files were found on

Jiffy Script Rx’s database (ECF No. 107-5 ¶¶ 30–31 (citing Aug. 23, 2019 Correspondence));

Plaintiff sent a fax to a physician’s office on behalf of Medicos which included a price list he had

“created” (ECF No. 107-5 ¶¶ 36, 38 (citing Oct. 2019 Fox Cover Sheet; Syed Hussaini Dep. 114:8–

116:4)); the Employee Handbook contains a relevant confidentiality agreement and Plaintiff

signed this confidentiality agreement (ECF No. 99-1 ¶ 9 (citing Claude Thomas Dep. 94:9–96:5;

the Employee Handbook’s Signature Page)).

Based on these facts, the Court finds there is ample factual support for Defendants’ Eighth

Counterclaim to survive summary judgment because a reasonable factfinder could find Plaintiff

misappropriated trade secrets in violation of the NJTSA. See Lamorte Burns, 770 A.2d at 1166;

AYR Composition, Inc., 619 A.2d at 597. Accordingly, the portion of Plaintiff’s Cross-Motion

seeking summary judgment on Defendants’ Eighth Counterclaim is denied.

7. Summary Judgment in Favor of Plaintiff on Defendants’

Counterclaims for Violation of the NJCROA (Ninth Counterclaim) and

the CFAA (Tenth Counterclaim) Is Warranted

As to the Ninth and Tenth Counterclaims, Plaintiff asserts Defendants’ Ninth Counterclaim

under the NJCROA fails because Defendants have not set forth the statutory elements required to

establish they were damaged in business or property. (ECF No. 102-4 at 7.) Plaintiff also contends

Defendants’ Tenth Counterclaim under the CFAA cannot be established because Plaintiff was

never party to a confidentiality agreement and there is no evidence Plaintiff suffered damages or

impairment to a computer or computer system. (Id. at 8.)

In opposition, Defendants submit there is sufficient evidence for Defendants’ Ninth

Counterclaim to proceed because: (1) under the NJCROA, a defendant is liable for “purposeful[ly]

and knowing[ly]” removing or destroying computer data (ECF No. 107 at 29–30 (citing N.J. Stat.

Ann. § 2A:38A-1, et seq.) (alteration in original)); and (2) “the record evidence demonstrates that

Plaintiff utilized the information he stole to compete against Defendants in direct violation of the

confidentiality agreement between the parties” (id. at 30). Defendants assert summary judgment

as to the Tenth Counterclaim must be denied because Plaintiff has admitted he had access to

Defendants’ computer system and the record establishes Plaintiff utilized the information he stole

to compete against Defendants in violation of the confidentiality agreement between the parties.

(Id. at 29–30.)

In reply, Plaintiff reiterates Defendants have not set forth the statutory elements contained

in N.J. Stat. Ann. § 2A:38A-3. (ECF No. 108 at 5.) As to the CFAA, Plaintiff argues “Defendants

have never, in any pleading even remotely suggested that any of Plaintiff’s alleged misconduct

involved harm of any kind to any computer, computer system, computer network or software” and

that there is no evidence of monetary damages. (Id. at 5.)

“The New Jersey Computer Related Offenses Act makes it unlawful to alter, damage,

access, or obtain data from a computer without authorization.” In re Nickelodeon Consumer Priv.

Litig., 827 F.3d 262, 277 (3d Cir. 2016) “The CFAA is a criminal statute which penalizes a range

of computer offenses and also provides a civil remedy in certain circumstances to persons who

suffer damage or loss as a result of a violation of its provisions.” Christie v. Nat’l Inst. Of Newman

Stud., Civ. A. No. 16-6572, 2019 WL 1916204, at *5 (D.N.J. Apr. 30, 2019) (internal citations

omitted). “[T]he CFAA prohibits the knowing or purposeful unauthorized access to, or

transmission of, protected computer data.” Id. (citing 18 U.S.C. § 1030(a); Grant Mfg. & Alloying,

Inc. v. McIlvain, 499 F. App’x 157, 159 (3d Cir. 2012)). Under the CFAA, a private cause of action

is also permitted. See 18 U.S.C. § 1030(g); Grant Mfg., 499 F. App’x at 159.

“An employee accesses a computer without authorization when he has no rights, limited or

otherwise, to access the computer in question.” Synthes, Inc. v. Emerge Med., Inc., Civ. A. No. 11-

1566, 2012 WL 4205476, at *16 (E.D. Pa. Sep. 19, 2012) (internal citation and quotations

omitted). The Ninth Circuit has held “an employer gives an employee ‘authorization’ to access a

company computer when the employer gives the employee permission to use it.” LVRC Holdings

LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009).

“Importantly, an employee who accesses a computer by the terms of his or her employment

is ‘authorized’ to use that computer for purposes of the CFAA even if the purpose in doing so is

to misuse or misappropriate the information.” Christie, 2019 WL 1916204, at *5 (citing Bro-Tech

Corp. v. Thermax, Inc., 651 F. Supp. 2d 378, 407 (E.D. Pa. 2009); see also Diamond Power Int’l,

Inc. v. Davidson, 540 F. Supp. 2d 1322 (N.D. Ga. 2007); Brett Senior & Assocs., P.C. v. Fitzgerald,

Civ. A. No. 06-1412, 2007 WL 2043377 (E.D. Pa. Jul. 13, 2007); Lockheed Martin Corp. v. Speed,

Civ. A. No. 05-31, 2006 WL 2683058 (M.D. Fla. Aug. 1, 2006); Int’l Ass’n of Machinists &

Aero. Workers v. Werner-Matsuda, 390 F. Supp. 2d 479, 495 (D. Md. 2005); Shamrock Foods Co.

v. Gast, 535 F. Supp. 2d 962, 965 (D. Ariz. 2008)). “In other words, what one intends to do with

information taken from a computer is irrelevant if the individual was given computer access to that

information.” Christie, 2019 WL 1916204, at *5 (citing QVC, Inc. v. Resultly, LLC, 159 F. Supp.

3d 576, 595 (E.D. Pa. 2016)).

The Third Circuit has noted “courts seem to have interpreted the [NJCROA] in harmony

with its federal counterpart [the CFAA].” In re Nickelodeon, 827 F.3d at 278; Mu Sigma, 2013

WL 3772724, at *9–10 (dismissing claims under the NJCROA and the CFAA for identical

reasons); Christie, 2019 WL 1916204, at *5–11 (granting summary judgment under the state and

federal computer offenses statutes for nearly identical reasons). Therefore, the Court will

concurrently address the Ninth and Tenth Counterclaim.

Here, the Court finds Defendants have failed to establish a genuine issue of material fact

as to Plaintiff’s authorization. Defendants do not assert Plaintiff was unauthorized to access

YourLifeRx or Millers of Wyckoff’s client list, compounding price list, or other relevant files

during his employment. Instead, it appears Defendants’ contention is that Plaintiff was

unauthorized to utilize his e-mail for receiving these relevant files during his employment. “The

CFAA does not protect the unauthorized access of e-mails. Rather, . . . the statute only protects the

unauthorized access of computers, not stored electronic communication in the form of e-mails.”

Christie, 2019 WL 1916204, at *6. See Owen v. Cigna, 188 F. Supp. 3d 790, 793 (N.D. Ill. 2016)

(“[T]he CFAA is aimed at unauthorized access to computers, not unauthorized access to web-

based accounts.”); see also Sloan Fin. Grp., LLC v. Coe, No. 09-2659, 2010 WL 4668341, at *4

(D.S.C. Nov. 18, 2010) (“[W]hether or not it was a violation of company policy, e-mailing the

spreadsheets did not involve accessing a computer ‘without authorization’ under the CFAA.”).

Based on the foregoing, the Court finds summary judgment in favor of Plaintiff on Defendants

Ninth and Tenth Counterclaims is warranted because Plaintiff did not engage in unauthorized

access of YourLifeRx or Millers of Wyckoff’s computers, client list, compounding price list, or

other relevant files.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion for Summary Judgment (ECF No. 99)

is GRANTED and Plaintiff’s Cross-Motion for Summary Judgment (ECF No. 102) is GRANTED

IN PART and DENIED IN PART. An appropriate Order follows.

/s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

Dated: February 5, 2024