Opinion
DOCKET NO. A-0104-11T1 DOCKET NO. A-5603-11T1
06-10-2015
JUDY THORPE, Plaintiff-Appellant, v. STATE OF NEW JERSEY, STATE OF NEW JERSEY JUVENILE JUSTICE COMMISSION, OFFICE OF THE NEW JERSEY ATTORNEY GENERAL, and THOMAS FLANAGAN, Defendants-Respondents.
Mark A. Fury argued the cause for appellant (Law Office of Mark A. Fury, attorney; Angela Watson-Bell, on the brief). Ashwath S. Trasi, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, and Mr. Trasi, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Haas and Higbee. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-156-08. Mark A. Fury argued the cause for appellant (Law Office of Mark A. Fury, attorney; Angela Watson-Bell, on the brief). Ashwath S. Trasi, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, and Mr. Trasi, on the briefs). PER CURIAM
In these back-to-back appeals, which we now consolidate for purposes of this opinion, plaintiff appeals from the December 13, 2010 order of the Law Division granting defendants' motion for summary judgment and dismissing her complaint alleging, among other things, discrimination and unlawful retaliation in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to 14. Plaintiff also appeals from the court's June 25, 2012 order denying her fourth motion for reconsideration. We affirm.
The following material facts are derived from the evidence submitted by the parties on defendants' summary judgment motion, viewed in a light most favorable to plaintiff, the non-moving party. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
In 1983, plaintiff began working as a nurse at a psychiatric hospital for the New Jersey Department of Human Services. In 1999, she transferred to a child treatment center, where she worked as a head nurse and later as a supervisor of nursing services. In April 2005, plaintiff transferred to the Juvenile Justice Commission (JJC), where she worked as a supervisor of nursing services at a training school for boys.
Between December 2005 and April 2006, plaintiff's subordinates filed nine harassment complaints against her. In April 2006, plaintiff's supervisor gave her a "plan of action" to address issues with respect to her work performance. The plan called for plaintiff and the supervisor to have regularly scheduled meetings so that the supervisor could monitor plaintiff's performance.
On May 5, 2006, the supervisor directed plaintiff to meet with him to discuss issues concerning her performance, including her lateness to meetings. Plaintiff refused to attend the meeting. When it was rescheduled for May 11, 2006, plaintiff arrived twenty minutes late. The JJC issued plaintiff a preliminary notice of disciplinary action charging her with insubordination. Following a departmental hearing at which plaintiff was represented by her union attorney, the charge was sustained and plaintiff received a written reprimand.
Plaintiff suffers from a medical condition which requires that she have ready access to a restroom. When she began working at the JJC, plaintiff shared an office with three secretaries. When the JJC hired a temporary medical clerk to assist the secretaries, defendant was moved to the nurses supervisors' office across the street from her prior location.
In July 2006, plaintiff filed a union grievance alleging disability discrimination. Plaintiff claimed her new office location did not accommodate her disability because her work station was too far from a bathroom. She also asserted she was unable to secure her medications at her new location and that her supervisor was not permitting her to have a "flexible" lunch hour. Plaintiff filed this action prior to requesting an accommodation from the JJC under the Americans With Disabilities Act, 42 U.S.C.A. §§ 12101-12213 (1990).
The JJC's ADA coordinator conducted an investigation which revealed that plaintiff had a private office at her new location with a locking desk to store her medicine. The office was ten feet away from a private bathroom. In contrast, at plaintiff's prior location, she had to share a communal restroom that was 100 feet away from her shared office space. Moreover, once it was brought to plaintiff's supervisor's attention that she needed a flexible lunch hour, the supervisor allowed her to have one. Thus, plaintiff's ADA accommodation was denied.
On June 26, 2006, plaintiff filed a complaint against the JJC with the Equal Employment Opportunity Office (EEO) of the New Jersey Department of Law and Public Safety. Plaintiff alleged her supervisor treated her differently from other nurse supervisors because of her race, African-American, and age, forty-four. Two of the other supervisors were Caucasian, ages thirty-seven and forty-four. The third supervisor was African-American, age thirty-one. Plaintiff's supervisor was African-American, age thirty-two. Plaintiff also alleged violations of the ADA, and claimed she had been sexually harassed. The EEO investigated plaintiff's allegations and concluded they lacked merit.
Plaintiff appealed this determination to the Civil Service Commission. In a May 14, 2009 decision, the Commission found that plaintiff failed to establish any discriminatory conduct regarding a reasonable medical accommodation, discrimination based on age or race, sexual harassment, or retaliation based upon engaging in a protected activity.
On July 27, 2006, plaintiff received a second notice of disciplinary action after she loudly shouted, "I am tired of your crap," at her supervisor during a meeting. The JJC also received complaints that plaintiff was treating pharmacists in a rude and unprofessional manner. After a departmental hearing, plaintiff received a two-day suspension for conduct unbecoming a public employee.
When plaintiff later approached her supervisor with clenched fists in August 2006, the JJC issued her a third notice of disciplinary action for conduct unbecoming a public employee, and sought to impose a ten-day suspension. Plaintiff then took a medical leave of absence from October 5, 2006 to February 2, 2007, and this disciplinary charge was never adjudicated.
Shortly after returning to work in February 2007, plaintiff "swapped" assignments with another employee and voluntarily transferred to a different training school. Plaintiff then complained that the new location did not accommodate her disability. However, an investigation determined that, at her new location, plaintiff had a private office with an attached restroom. Plaintiff also had access to a second bathroom that was only ten feet away from her office.
The JJC had three State cars available for four nurse supervisors. When plaintiff commuted between work assignments, she was assigned a State car. In May 2006, however, plaintiff was only using the car to commute to and from work, and her supervisor reassigned it to another supervisor who was commuting between work assignments. In February 2007, plaintiff was assigned a State car again after she transferred to her new work location because she again needed a vehicle for her work. Plaintiff would later allege she was discriminated against because she was not able to use a State car to commute to work when she did not need it for business purposes.
On May 14, 2007, the JJC issued a fourth disciplinary charge against plaintiff for conduct unbecoming an employee after she loudly interrupted a meeting to accuse one of her co-workers of "tattling" on her. However, when plaintiff went out on medical leave shortly thereafter, this charge was not pursued.
On June 25, 2007, plaintiff sent a memo to two JJC administrators in which she complained that some outside vendors were not being contacted to determine their interest in providing temporary nursing services at the school. The JJC reviewed this allegation and determined that the appropriate contract process was followed.
On October 12, 2007, plaintiff filed a second complaint against the JJC with the EEO office. Plaintiff alleged discrimination and retaliation, the denial of ADA accommodation due to her medical condition, and an alleged breach of confidentiality during a disciplinary appeal hearing. After an investigation, only the confidentiality claim was substantiated. With regard to that claim, the investigation found that both plaintiff and her supervisor had breached confidentiality during the departmental hearing that resulted in plaintiff's two-day suspension because they had discussed items that were not the subject of the charge. Counseling for both plaintiff and her supervisor was recommended. In all other respects, the investigation yielded no evidence of discrimination or retaliation.
Plaintiff took a medical leave of absence for "stress" in late 2007 and she sought workers' compensation benefits. A psychologist was assigned to evaluate plaintiff's claim. The psychologist recommended that plaintiff "begin psychotherapy immediately[,]" and stated that she would "shortly need a psychiatric consult[.]"
During her employment, plaintiff had sought workers' compensation benefits on over twenty occasions.
To ensure that she was fit for duty, the JJC scheduled plaintiff for a fitness for duty evaluation pursuant to N.J.A.C. 4A:6-1.4(g). Because plaintiff was then on vacation, the evaluation was scheduled for January 4, 2008. Plaintiff was notified that the "appointment [was] mandatory and [plaintiff's] continued employment with the [JJC was] contingent upon the results of this evaluation." Plaintiff appeared at the doctor's office for the evaluation on January 4, 2008, but she refused to sign a release form or participate in the evaluation.
As a result, the JJC issued plaintiff a preliminary notice of disciplinary action on January 7, 2008, seeking to terminate her for insubordination, failing to follow sick leave procedures, and "other sufficient cause." Plaintiff appealed the preliminary notice, and a departmental disciplinary hearing was conducted in July 2008. The JJC gave plaintiff the opportunity to participate in the fitness for duty evaluation up to the date of the hearing, but she still refused. The hearing officer sustained the charges and plaintiff was removed from employment.
The Deputy Director of the New Jersey Division on Civil Rights served as the hearing officer.
In April 2008, plaintiff filed an appeal of her removal to the Office of Employee Relations, which conducted an arbitration hearing on December 10, 2009. Plaintiff was represented by her union attorney during this proceeding. At the arbitration hearing, plaintiff's attorney stipulated that the JJC's determination to require plaintiff to undergo a fitness for duty evaluation was "a reasonable decision." In addition, plaintiff testified that, after reviewing the release form with her attorney, the attorney advised her to sign it. The arbitrator found that the JJC had just cause to remove plaintiff from employment after she refused to participate in the fitness for duty evaluation.
While the arbitration proceeding was pending, plaintiff filed a five-count complaint in the Law Division against the JJC, its executive director and the Office of the Attorney General. Plaintiff alleged defendants violated the LAD, CEPA, the Family Medical Leave Act (FMLA), 29 U.S.C.A. §2615(a)(1), and the "New Jersey Common Law (Workers' Compensation Retaliation)[.]" In count one, plaintiff alleged she was subjected to a hostile work environment, suffered multiple adverse employment actions, and was terminated from employment in violation of the LAD because she complained about sexual harassment and sought an accommodation for her disability. In count two, plaintiff claimed defendants retaliated against her for reporting what she believed was the improper handling of contracts to outside vendors for temporary nursing services in violation of CEPA.
Plaintiff next alleged, in count three, that defendants violated the FMLA by retaliating against her for taking family leave. In count four, plaintiff asserted defendants failed to grant her requests for accommodation of her disability and, in count five, claimed defendants retaliated against her because she sought workers' compensation on numerous occasions.
Following the completion of discovery, defendants filed a motion for summary judgment, which plaintiff opposed. By that time, plaintiff had filed "unfair practice charges" against the JJC and her union with the Public Employment Relations Commission (PERC). Plaintiff alleged that the arbitrator's decision should be overturned. Prior to the December 13, 2010 return date of defendants' motion for summary judgment, plaintiff asked PERC to place her matter "on inactive status pending the disposition of the Superior Court matter." PERC agreed.
After conducting oral argument on December 13, 2010, the Law Division judge granted defendants' motion for summary judgment and dismissed plaintiff's complaint. In a thorough oral opinion, the judge found that all of plaintiff's claims had been unsuccessfully raised by her in her prior EEO complaints, and her Civil Service Commission, arbitration, and disciplinary proceedings. Therefore, the judge held that plaintiff was collaterally estopped from pursuing these same allegations in the Law Division. However, the judge went on to consider the merits of plaintiff's claims and found that plaintiff failed to establish a prima facie case of discrimination or retaliation under the LAD, CEPA, FMLA, or the common law. On September 1, 2011, plaintiff appealed the judge's December 13, 2010 order dismissing her complaint to this court.
This appeal bears Docket No. A-0104-11.
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After the judge dismissed plaintiff's complaint, PERC reopened the matter pending before it. In a September 6, 2011 decision, PERC found that plaintiff's challenge to the arbitrator's decision lacked merit.
Plaintiff also filed four motions for reconsideration in the Law Division. The judge denied these motions in oral decisions on May 27, 2011, August 4, 2011, January 30, 2012, and June 25, 2012. The latter two motions were considered by the court after plaintiff filed her appeal to this court in Docket No. A-0104-11.
With regard to the June 25, 2012 motion, plaintiff alleged the trial judge erred in dismissing her complaint prior to the completion of the proceedings before PERC. The judge rejected plaintiff's contention, finding that she had failed to present any new evidence or arguments warranting reconsideration of the December 13, 2010 order dismissing her complaint.
On July 16, 2012, plaintiff filed a notice of appeal from the trial court's June 25, 2012 order denying her motion for reconsideration. This appeal bears Docket No. A-5603-11.
On appeal, plaintiff argues primarily that there were disputed issues of material fact that precluded summary judgment and that the motion judge did not properly consider her arguments. After a thorough review of the record and consideration of the controlling legal principles, we conclude that all of plaintiff's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments concerning plaintiff's employment discrimination and retaliation claims.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment must be granted if "'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, whether "'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Ibid. (quoting Brill supra, 142 N.J. at 540). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas, supra, 213 N.J. at 478.
The LAD prohibits discriminatory employment practices. Viscik v. Fowler Equip. Co., Inc., 173 N.J. 1, 13 (2002). To prove employment discrimination under the LAD, New Jersey courts have adopted the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973); Viscik, supra, 173 N.J. at 13-14. Under that analysis, the plaintiff must first present sufficient evidence to establish a prima facie case of unlawful discrimination. Dixon v. Rutgers, 110 N.J. 432, 442 (1988) (citing McDonnell Douglas Corp., supra, 411 U.S. at 807, 93 S. Ct. at 1826, 36 L. Ed. 2d at 680); Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 82-83 (1978). The defendant then has the burden to present evidence establishing a legitimate, non-discriminatory reason for its employment action. Dixon, supra, 110 N.J. at 442 (citing Peper, supra, 77 N.J. at 82-83). If the defendant presents such evidence, the burden shifts back to plaintiff to prove that the defendant's proffered reasons are merely a pretext for unlawful discrimination. Ibid. (citing Peper, supra, 77 N.J. at 82-83).
The LAD also bans "reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint" to enforce "any right granted or protected by this act." N.J.S.A. 10:5-12(d). To claim retaliation in violation of the LAD, employees must show that "(1) they engaged in a protected activity known by the employer; (2) thereafter their employer unlawfully retaliated against them; and (3) their participation in the protected activity caused the retaliation." Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995). Upon the assertion of a legitimate non-retaliatory reason for the adverse action by the employer, a plaintiff must show, by a preponderance of the evidence, that the employer's conduct was nonetheless motivated by discriminatory reasons. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995).
Applying these principles in this case, we agree with the trial judge that plaintiff failed to establish that defendants discriminated or retaliated against her. Contrary to plaintiff's contention, the JJC accommodated her disability by providing her with a private restroom, giving her a desk with a lock to store her medications, and allowing her to have a flexible lunch hour. When plaintiff was assigned to a position requiring her to travel for business purposes, the JJC permitted her to use the State car. The disciplinary actions the JJC took against her were based upon plaintiff's well-documented outbursts against her supervisor and co-workers. Finally, even plaintiff's own attorney conceded it was reasonable to require plaintiff to undergo a fitness for duty evaluation and plaintiff presented no rational reason for her refusal to do so.
In short, plaintiff failed to establish a prima facie case of discrimination or retaliation and, even if she had, defendants presented overwhelming evidence that all of their actions regarding plaintiff were based on legitimate business considerations. Thus, we are convinced from our review of the record that plaintiff failed to present sufficient evidence to show that defendants' reasons for their employment actions were a pretext for unlawful discrimination.
We are also satisfied that plaintiff's CEPA claims lack merit. CEPA makes it "unlawful for an employer to retaliate against an employee who 'report[s] illegal or unethical workplace activities.'" Donelson v. DuPont Chambers Works, 206 N.J. 243, 256-57 (2011) (alteration in original) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 461-62 (2003)). Plaintiff asserted defendants retaliated against her because she questioned whether outside vendors were being properly considered when temporary nursing services were needed. However, as discussed above, plaintiff failed to establish that any of defendants' actions were motivated by anything other than sound business reasons. Because plaintiff failed to establish a causal connection between her alleged "whistle-blowing activity and [any] adverse employment action," the trial judge correctly rejected plaintiff's claim of retaliation in violation of CEPA. Dzwonar, supra, 177 N.J. at 462.
Finally, we address plaintiff's argument that the trial judge erred in considering defendants' motion for summary judgment prior to PERC rendering a final decision in her arbitration matter. This argument fails for several reasons. First, plaintiff specifically asked PERC to place her case on the inactive list pending the completion of the Law Division proceedings. Moreover, nothing in the record indicates that plaintiff ever asked the trial judge to await the outcome of the PERC proceeding before addressing defendants' motion for summary judgment. In any event, PERC has since rendered its decision, which was adverse to plaintiff. Therefore, plaintiff's contention on this issue is now moot.
As for the balance of any of plaintiff's arguments not expressly discussed above, they are also without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION