Judges Long, Wefing and Carchman.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
On June 17, 1997, plaintiff Rosemary Williams filed a two-count complaint in which she sought damages for employment discrimination under N.J.S.A. 10:5-12 and for retaliatory discharge under N.J.S.A. 34:19-3. Shortly after defendants filed their answer, they moved for summary judgment. The trial court granted defendants' motion, and plaintiff has appealed. After a careful review of the record, we affirm.
In light of the nature of the questions presented, we consider it important to set forth the factual background of this matter in somewhat more detail than we might otherwise employ. Plaintiff is an African- American woman who was hired by defendant Pemberton Township Public Schools as a guidance counselor for the 1995-96 school year. She was primarily assigned to Fort Dix Elementary School, at which defendant Elmer R. Brown, a white male, is principal. She also spent one day a week at Brotherhood Elementary, another Pemberton-Township school. The record discloses neither the total number of teachers at those schools nor the breakdown of tenured and non-tenured teachers; it does reveal, however, that two of Fort Dix's tenured teachers were African-American.
Defendant Robert D. Elder is the superintendent of the Pemberton schools; he is a white male.Plaintiff's relationship with defendant Brown was not entirely amicable. The two met several times to discuss plaintiff's performance and conduct. Their meeting of November 2, 1995, plays a critical role in plaintiff's case. That meeting occurred following an incident that took place earlier that day.On November 2, plaintiff met with K.D., whose two sons were registered at Fort Dix. Ms. D. asked whether plaintiff met with and counseled her older son, a first-grade student. Plaintiff replied that she recently received a referral from the boy's teacher and had therefore not yet scheduled an appointment. Ms. D. was dismayed; she told plaintiff that she contacted the boy's teacher at the beginning of the school year and asked the teacher to refer her son for counseling because he was experiencing a great deal of stress at home. They had only recently moved to the area and her husband had undergone a severe illness which left him with brain damage. Moreover, she informed plaintiff that her son recently revealed thoughts of suicide. Plaintiff was alarmed by that information and instructed Ms. D. to obtain immediately a professional evaluation of her son's psychological health. Plaintiff completed the necessary paper work and assisted Ms. D. in locating her son for early dismissal.
After assisting Ms. D., plaintiff, believing that the boy's teacher inappropriately responded to a serious situation, notified and met with Brown on November 2. Brown also met with the teacher in question on that day, but the record does not disclose the results of that meeting. Plaintiff alleged that the teacher refused to meet with her to discuss what occurred.
On November 7, 1995, Brown wrote plaintiff a memorandum in which he summarized their meeting of November 2. He referred to their several, performance-related meetings that took place over the past few months and set forth specific areas in which plaintiff's performance needed improvement. Specifically, Brown directed plaintiff to: (1) provide timely feedback to the teachers; (2) pick up the children at their classrooms rather than expect the teacher to keep track of when a particular student was expected to report to guidance counseling; and (3) improve her rapport with the staff. Also in that memorandum, Brown referred to a particular comment he made to plaintiff on November 2. On that day, Brown told plaintiff that she needed to "become more teachable"; he explained to her that he was referring to her inability to receive directions or advice "without giving a retort." He suggested that plaintiff meet with Barbara Greco, the Director of Guidance and Counseling, for assistance in those specified areas.
Several days after receiving Brown's memo, plaintiff met with Ms. Greco. Ms. Greco directed plaintiff to prepare a written response to the four concerns Brown expressed. Within her memo, Ms. Greco noted, "I also need to meet with you to discuss specific rapport complaints Mr. Brown has shared with me." The record contains no information regarding the nature of those complaints.
On November 20, 1995, plaintiff forwarded to Brown a five-page, single-spaced memorandum in response to Brown's November 7 memorandum. She first addressed Brown's complaints concerning her lack of feedback to the faculty; she wrote that she earlier made a policy decision "not only [to] give the teachers who gave me referrals verbal feedback but . . . also to give them a copy of their referral with comments from me." She noted that "it is my policy to give the teacher feedback as soon as the teacher's and my schedule will allow." She did not include, however, a single example of feedback that she had provided to a teacher in the preceding three months. Regarding her responsibility to pick up a student at the student's classroom, she told Brown that she had begun doing so after he had so instructed her in early September; she included in her memorandum the reasons underlying her desire to have the teacher send the child to the guidance office. She dealt with the issue of rapport by noting that she always ate lunch in the faculty lounge and that she had given three classroom presentations on self-awareness. She provided, however, no specific examples of her individual interactions with staff. Finally, she addressed Brown's comment that she needed to be "more teachable":
"I am appalled and offended by your use of this term . . . time has long passed since Black people were referred to as "not teachable." It is unbelievable to think that terms like "not teachable" and subservient *fn1 would exist in anyone's vocabulary in 1995[.]"
She concluded her memorandum by listing her activities at the school since September and by expressing dismay at the manner in which she had been treated.
Shortly after receiving plaintiff's November20 memorandum, Brown revised the text of his November7 memorandum and requested that the revised memorandum replace the original in plaintiff's personnel file. In its original format, the memorandum read:
"In our last meeting, on November 2, 1995, I shared with you that you need to become more "teachable." You reminded me that you have both a B.A. and M.A. degree. I told you it didn't mean you couldn't achieve academically but rather being "teachable" has to do with how you respond when you are given directives and advice. You can't take direction or advice without giving a retort. This is very frustrating to me because as I have told you, all I'm trying to do is to help you succeed as a counselor."
In its revised format, the memorandum read:
"In our last meeting, on November 2, 1995, I shared with you that you need to learn to take direction. Taking direction has to do with how you respond when you are given directives and advice. You can't take direction or advice without giving a retort. This is very frustrating to me because as I have told you, all I'm trying to do is to help you succeed as a counselor."
In requesting that the revised version replace the original, Brown wrote to the Assistant Superintendent for Personnel and explained that "[i]t was never my intention to appall or offend Mrs. Williams with my words. It is not part of my character to do that to anyone." The revised version was dated November 7, 1995, clearly ...