Opinion
DOCKET NO. A-1506-14T4
04-28-2017
SHERIE JENKINS, Plaintiff-Appellant, v. STATE OF NEW JERSEY, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, (ITS DIRECTORS, OFFICERS, SERVANTS, AGENTS, ASSIGNEES, DELEGATES, AND/OR EMPLOYEES); STATE OF NEW JERSEY, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT MANAGERS AND/OR SUPERVISORS AND/OR EMPLOYEES MICHELLE RICHARDSON, TAMARA THOMAS, GARY ALTMAN, JESSIE PHILLIPS, SHOBHAN BANTWAL and DAVID ROSENBLUM (EEO), Defendants-Respondents.
Eric V. Kleiner argued the cause for appellant. Richard L. Goldstein argued the cause for respondents (Marshall, Dennehey, Warner, Coleman, and Goggin, attorneys; Mr. Goldstein and Ashley Toth, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes, Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3222-10. Eric V. Kleiner argued the cause for appellant. Richard L. Goldstein argued the cause for respondents (Marshall, Dennehey, Warner, Coleman, and Goggin, attorneys; Mr. Goldstein and Ashley Toth, on the brief). PER CURIAM
In this employment matter, plaintiff Sherie Jenkins appeals from the September 8, 2014 Law Division order, which granted summary judgment to defendants, and denied plaintiff's cross-motion to amend the complaint. We affirm.
Plaintiff also appealed from the October 27, 2014 order, which denied her motion for reconsideration. Because plaintiff did not address the denial of her motion for reconsideration in her merits brief, the issue is deemed waived. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.), certif. denied, 222 N.J. 17 (2015); Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2017).
I.
We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in the light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).
In 1991, plaintiff, an African-American, began her employment with the State of New Jersey Department of Labor and Workforce Development (DOL) as a temporary claims examiner. She was promoted numerous times, ultimately culminating in her promotion to Assistant Director in 2008. While serving in this position, several DOL employees filed complaints against plaintiff with the Division of Equal Employment Opportunity (EEO), alleging she made inappropriate and derogatory comments pertaining to employees' sexual orientation, national origin, and religion. The EEO conducted an investigation and found that plaintiff violated the State's Anti-Discrimination Policy (the Policy) prohibiting sexual orientation, national origin, gender, and religious discrimination by:
1. calling a male employee a "faggot;"
2. referencing an employee's accent and attempted to deny her the right to speak at an event;
3. repeatedly using the phrase "pink panties" in a disparaging manner towards male employees;
4. referring to a male employee as a "fucking jew;"
5. commenting about an employee's accent;
6. mocking an employee's national origin by saying, "[w]hat, are we on Caribbean time?" when arriving for a meeting; and
7. making a remark suggesting that the DOL should give jobs to Americans over foreigners while on a conference call.
On June 3, 2009, the DOL issued plaintiff an official letter of reprimand, notifying her that she had violated the Policy. On June 4, 2009, plaintiff was returned to her position as a Business Services Representative I.
On December 16, 2010, plaintiff filed a complaint in the Superior Court, asserting claims of disability- and gender-based hostile work environment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. She also alleged gender-based disparate pay, and improper demotion.
Plaintiff asserted additional claims of hostile work environment based on age, race and political affiliation; violation of the New Jersey State Constitution; constructive discharge; abuse of process; intentional infliction of emotional distress; fraud, negligent training/retention; and the tort of outrage. She voluntarily dismissed her age-based hostile work environment claim and her claims of constructive discharge, abuse of process, fraud, the tort of outrage, and all claims against defendant Shobhan Bantwal, individually; and the trial court dismissed all other claims on summary judgment. Because plaintiff did not address any of her additional claims in her merits brief, all issues relating to these claims are deemed waived. N.J. Dep't of Envtl. Prot., supra, 438 N.J. Super. at 505-06 n.2; Pressler & Verniero, supra, comment 5 on R. 2:6-2 (2017). --------
Plaintiff is an insulin dependent diabetic and suffered a shoulder injury in 2006 that required surgery. Her allegations focused primarily on her supervisor, an African-American female, who plaintiff claimed preyed on her handicaps and constantly threatened her with termination. Plaintiff asserted that her supervisor berated her and forced her to work excessive hours with an excessive workload and no support because of her disability. However, plaintiff conceded that everyone on the executive management team worked long hours, irrespective of gender or disability, and the evidence revealed that her supervisor berated and was extremely demanding of all her subordinates regardless of their race, gender, or disability.
Plaintiff alleged that her supervisor knew of and acted without regard for her diabetic condition. She pointed to one instance where her supervisor continued a meeting through the lunch hour despite her request for a lunch break. However, the record reveals that the supervisor provided a break within two minutes of plaintiff's request. In addition, there was no evidence that plaintiff ever submitted a doctor's note to the DOL or her supervisors requesting an accommodation for her diabetes.
Plaintiff alleged that her supervisor interfered with and sabotaged her physical therapy sessions for her shoulder injury; forced her to return to work with her arm in a sling; and assigned her work and pressured her to engage in physical activities that exacerbated the injury and led to a second surgery that caused permanent damage. Plaintiff pointed to one incident where her supervisor called her during a physical therapy session to ask her work-related questions. Plaintiff conceded, however, that she was never precluded from attending therapy sessions, and the DOL provided all of the accommodations her doctor requested pertaining to her shoulder injury. In addition, there was no medical evidence that plaintiff was unable to perform her job duties due to her disabilities.
Regarding her gender-based hostile work environment claim, plaintiff alleged that her supervisor was biased against females like plaintiff, a light-skinned African American blonde. She pointed to one instance where her supervisor said to her, in the presence of others, that plaintiff was one of those "pretty blondes" that always gets ahead in business in terms of promotions rather than the supervisor.
Regarding her gender-based disparate pay claim, plaintiff alleged that she was paid less than similarly-situated male counterparts. She pointed to a male Assistant Director who she claimed received more pay then she received. However, this employee was not a similarly-situated male counterpart, as he had worked for the DOL for over thirty years and had more seniority and experience than plaintiff. She also pointed to a male subordinate and a "Briefing Book" showing his salary, but produced no evidence about his background and experience.
Lastly, regarding her demotion, plaintiff did not allege that the EEO investigation was based on gender or disability discrimination. Rather, she alleged that the DOL relied on a negligently performed investigation that led to her demotion. She claimed that the investigation was grounded on fabricated evidence and was biased because the EEO investigator -- a homosexual, Jewish male -- could not fairly and impartially investigate allegations that she made homosexual and anti-Semitic remarks.
Defendants filed a motion for summary judgment after the close of discovery. Plaintiff filed a cross-motion to amend the complaint, seeking to add a retaliation claim under the LAD, alleging she was denied promotions in retaliation for filing this lawsuit.
The motion judge denied plaintiff's cross-motion, finding that her belatedly-raised retaliation claim had wholly different elements than her LAD claims, and defendant would face significant prejudice because they had defended this case for four years on the claims asserted in the complaint. The judge emphasized that the case was four years old and had three years of discovery; discovery was extended multiple times and was now closed; a trial date had been set; and plaintiff offered no valid reason for the delay in seeking leave to amend the complaint.
The judge dismissed plaintiff's hostile work environment claim, finding no evidence that the supervisor's conduct was based on plaintiff's protected status, and finding the evidence was insufficient to show severe and pervasive conduct that would not have occurred but for her protected status and altered the terms and conditions of her employment. The judge found that plaintiff's supervisor was a tough and demanding boss who berated and was extremely demanding of all her subordinates regardless of their race, gender, or disability.
The judge dismissed plaintiff's improper demotion claim. The judge focused on whether the evidence could demonstrate pretext for plaintiff's demotion, and determined that defendants had articulated a legitimate and non-discriminatory justification for plaintiff's demotion. The judge found there was no evidence that the EEO investigation was improper, or the EEO investigator was biased based on plaintiff's race, gender, or disability. The judge emphasized that the claims against the EEO investigator were specious and unsupported, the EEO charges against plaintiff were corroborated by several witnesses, and plaintiff was demoted for violating the Policy. The judge also dismissed plaintiff's unequal pay claim, finding that plaintiff presented no evidence that similarly-situated male counterparts were paid more than she was paid.
On appeal, plaintiff argues that the judge erred in granting summary judgment and denying her leave to file an amended complaint, and the judge abused his discretion in dismissing her hostile work environment and tangible job discrimination claims. We disagree with these arguments.
We first address the denial of plaintiff's motion for leave to amend her complaint. Our review of a trial court's decision on a motion to amend a pleading is limited. Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003). We will not disturb the court's ruling on a motion to amend a pleading absent a "clear abuse of discretion." Ibid. (citation omitted). The court's decision must be guided by the facts surrounding the motion to amend, Bonczek v. Carter-Wallace, Inc., 304 N.J. Super. 593, 602 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998), including the reason for the late filing. Verni ex rel. Burstein v. Harry Stevens, Inc., 387 N.J. Super. 160, 196 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007).
Notwithstanding the liberal standard for allowing amendments to pleadings, it is within the court's discretion to deny such motions in the interests of justice where there would be undue prejudice to another party. Ibid. (citation omitted). Further, the court's discretion is typically sustained when the motion is made on the eve of trial and several years after the complaint was filed. Globe Motor Car Co., v. First Fid. Bank, N.A., 291 N.J. Super. 428, 429 (App. Div.), certif. denied, 147 N.J. 263 (1996); see also Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 484 (App. Div.), certif. denied, 212 N.J. 198 (2012).
Plaintiff filed her motion to amend four years after filing the complaint, after the completion of discovery, and on the eve of trial. She provided no explanation for her delay in seeking to amend her complaint, nor did she show there was newly discovered evidence that gave rise to a belated retaliation claim. Further, the three years of discovery in this case focused solely on plaintiff's hostile work environment and disparate treatment claims, which had wholly different elements than a retaliation claim. To allow plaintiff to assert a retaliation claim would cause undue delay and significant prejudice to defendants. Accordingly, we conclude that the judge properly denied plaintiff's motion to amend her complaint.
We also conclude that the judge properly granted summary judgment to defendants. "[W]e review the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (citation omitted). Thus, we consider, as the trial court 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." Davis v. Brickman Landscaping Ltd., 219 N.J. 395, 406 (2014) (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." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
The LAD is remedial legislation designed "to root out the cancer of discrimination[.]" Cicchetti v. Morris Cnty. Sherriff's Office, 194 N.J. 563, 588 (2008) (citing Fuchilla v. Layman, 109 N.J. 319, 334, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)). The statute prohibits unlawful employment practices and discrimination in the form of harassment "based on race, religion, sex, or other protected status, that creates a hostile work environment." Cutler v. Dorn, 196 N.J. 419, 430 (2008) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601 (1993)); see also N.J.S.A. 10:5-12(a). Further, the LAD prohibits reprisals against an employee who asserts rights granted by the LAD. N.J.S.A. 10:5-12(d).
When considering a claim of hostile work environment under the LAD, the test is fact sensitive and the court must review the totality of circumstances presented. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005). Our Supreme Court has held that
[t]o establish a cause of action under the LAD based on a hostile work environment, plaintiffs must satisfy each part of a four-part test. Specifically, they must show that the complained-of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive. Within that framework, a court cannot determine what is "severe or pervasive" conduct without considering whether a reasonable person would believe that the conditions of employment have been altered and that the working environment is hostile. Thus, the second, third, and fourth prongs are, to some degree, interdependent.
[Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002) (citations omitted).]
A plaintiff must prove that his or her protected status was a motive or one of the motives for the conduct that created the hostile work environment. Lehmann, supra, 132 N.J. at 601. A plaintiff must also prove that a reasonable person in his or her protected class would consider the alleged discriminatory conduct "to be sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment." Ibid. (quoting Heitzman v. Monmouth Cnty., 321 N.J. Super. 133, 147 (App. Div. 1999), overruled on other grounds by Cutler, supra, 196 N.J. at 440). The court weighs the "severity and pervasiveness by considering the conduct itself rather than the effect of the conduct on any particular plaintiff." Id. at 178-79. The factors evaluated include "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." Shepherd, supra, 174 N.J. at 19-20 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106, 124 (2002)).
The LAD is not intended to be a general civility code for conduct in the workplace. See id. at 25-26. A hostile work environment discrimination claim cannot be established by epithets or comments which are merely offensive. Taylor v. Metzger, 152 N.J. 490, 501 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295, 302 (1993)). Neither rude and uncivil behavior nor offensive comments alone create a hostile work environment under the LAD. Shepherd, supra, 174 N.J. at 25; El-Sioufi, supra, 382 N.J. Super. at 179. Moreover, a claim that a supervisor is demanding of his or her subordinates is insufficient to prove a hostile work environment. See Chou v. Rutgers, 283 N.J. Super. 524, 543-44 (App. Div. 1995) (finding no basis to infer that a supervisor's actions that adversely affected the plaintiff were the product of retaliation or discrimination rather than simply a manifestation of the supervisor's somewhat dictatorial and erratic management style).
Once the plaintiff establishes a prima facie case of discrimination, the employer would then have to state a legitimate non-discriminatory reason for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 678 (1973). If the employer can articulate such a reason, under the "burden-shifting" or "pretext" analysis, the burden would then shift back to the plaintiff to prove that the stated reason was merely a pretext for discrimination. Id. at 804, 93 S. Ct. at 1825, 36 L. Ed. 2d at 679; see also Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 493 (1982).
Here, plaintiff failed to establish that the EEO investigation or her demotion occurred because of her protected status. There was no evidence whatsoever that the investigation or demotion was gender- or disability-based. Rather, plaintiff was investigated and demoted based on co-workers' complaints and the unassailable results of the EEO investigation, not on an invidious discriminatory reason or pretext.
Plaintiff failed to establish gender-based disparate treatment in terms of pay. She only compared herself to two male employees, providing no evidence she had similar credentials, and no evidence of the experience, background, or performance ratings of these individuals.
Plaintiff failed to establish disability- or gender-based hostile work environment. Plaintiff provided no evidence that her protected status was a motive or one of the motives for the conduct that created the hostile work environment. Plaintiff was not specifically targeted because of her protected status, but rather was treated in a manner consistent with her co-workers. Shepherd, supra, 174 N.J. at 24. Other members of the management team worked long hours; all employees attending the meeting that continued through the lunch hour were treated equally, all having to wait for a food break; and the supervisor berated and was demanding of all her subordinates, regardless of gender or disability.
Plaintiff's evidence was insufficient to establish that the complained-of conduct was severe or pervasive enough to make a reasonable person believe that the conditions of employment were altered and the working environment was hostile. The complained-of conduct was not frequent, severe, or physically threatening, and it did not interfere with plaintiff's ability to perform required tasks. Id. at 19-20. While the treatment by plaintiff's supervisor may have been unpleasant, neither uncivil behavior, offensive comments, nor a demanding supervisor are sufficient to prove a hostile work environment. See id. at 24-25; Taylor, supra, 152 N.J. at 501; Chou, supra, 283 N.J. Super. at 543-44.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION