On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Number L-4143-00.
Before Judges Stern, Collester and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff appeals from a grant of summary judgment dismissing her claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 5-42. We affirm in part and reverse in part.
In September 1983, plaintiff began her employment at Middlesex County College (MCC) as an Instructor of Counseling in the Office of Educational Opportunity Fund (EOF) of the Division of Student Services. Plaintiff's duties involved helping EOF students with academic, personal, social or other problems enroll at MCC.
Dr. Fannie Gordon was a member of the committee that approved hiring plaintiff. Plaintiff was required to submit a re-application for appointment as a counselor each year, and each year Gordon recommended plaintiff's appointment. In 1984, Gordon was named Director of the EOF program. In July 1988, plaintiff was promoted to the rank of assistant professor on Gordon's recommendation.
On June 14, 1994, plaintiff requested Gordon's permission to take a personal leave on June 30 and July 1. Gordon asked plaintiff to reschedule her personal business because plaintiff's co-worker was going to be on vacation at the time. Plaintiff told Gordon that she did not believe she could reschedule because she was having breast reduction surgery.
On June 15, 1994, Gordon gave plaintiff her annual evaluation, telling plaintiff, "You've done a good job. You've done everything that you were supposed to do." Plaintiff and Gordon had gone over the evaluation and signed it the day before plaintiff went for surgery. Gordon told plaintiff, however, that she was going to try something different this year and gave each employee a self-evaluation form reviewing their strengths and weaknesses. That portion of plaintiff's evaluation was not completed prior to her surgery, however.
On June 30, 1994, plaintiff underwent surgery and learned that she had breast cancer. She returned to work on July 5, 1994. On July 6, 1994, plaintiff informed Gordon of her diagnosis and that she needed to extend her lunch hour because of a doctor's appointment. Gordon told plaintiff to take a half day, and plaintiff took a half medical day. Gordon denied refusing to allow plaintiff to take an extended lunch hour, however, and testified at her deposition that she granted plaintiff's every request for time off.
On July 7, plaintiff claims she requested another extended lunch hour for a doctor's appointment and that Gordon told her to take a half day. On July 13, the day before plaintiff's mastectomy, she submitted the self-evaluation form and was scheduled to meet with Gordon to discuss the evaluation. Gordon cancelled the meeting, however, indicating they would discuss it after plaintiff returned from her surgery.
On July 14, 1994, plaintiff had a mastectomy with reconstructive surgery. She returned to work on July 25 with her doctor's permission, although she testified that her doctor advised her to stay home for six to eight weeks. Plaintiff did not extend her medical leave because she could not afford to be on disability at two-thirds pay. Plaintiff's doctor did not place any restrictions on her activities, however, other than that she was not permitted to drive for four to five weeks.
Plaintiff claimed that the first day she returned to work after her mastectomy, she asked Gordon if she could leave early for a doctor's appointment if she took a shorter lunch. Plaintiff again claimed that Gordon told her to take a half day. Plaintiff claimed that shortly after the mastectomy, Gordon "appeared ... to be on the verge of physically bumping into [plaintiff's] breast area as if to see if [plaintiff] really was as ill as everyone else knew that [she] was." Plaintiff also claimed that she heard through a third party that Gordon told another person that plaintiff was a "very angry woman" and that Gordon never heard of anyone having reconstructive surgery immediately after a mastectomy. Plaintiff interpreted these remarks as derogatory.
On August 13, 1994, plaintiff began the first of eight chemo-therapy treatments, occurring at three-week intervals. On those days, plaintiff took a paid half-day off from work. Plaintiff also had to visit her oncologist and plastic surgeon regularly, which she did during her lunch hours. At times, she was late returning from lunch because of these appointments. Gordon testified that plaintiff never asked for extended lunch periods for her medical appointments.
In August 1994, plaintiff met with Gordon to discuss her evaluation and claimed that Gordon was verbally negative about her performance. She did not receive a written evaluation with the negative remarks, however. In October 1994, when plaintiff still had not received a written evaluation from Gordon, she complained to her union representative. Gordon then asked plaintiff to write another self-evaluation in December and presented plaintiff with a written review which rated plaintiff's performance as "good" in four categories and "very good" in five categories. One negative comment was Gordon's statement that:
As your supervisor, I found during the 1993- 94 Academic Year your biggest weakness to be your reluctance to accept supervision and constructive feedback. If you have any desire to grow professional[ly] as a counselor you must began [sic] to identify ways in which to overcome this weakness. Supervision is a vital element in developing effective counseling skills.
Gordon concluded the evaluation, noting:
When feedback is given in most cases it results in an unpleasant attitude on your part which makes for an unproductive work environment. It also develops into a negative attitude that produces unprofessional behavior
I am concerned about how you allow from time to time your personal affairs to interfere in the smooth operation of the EOF office. When requesting time off from work, appointments should not be confirmed until the time has been approved. Inappropriate personal messages are also left on the answering service as if this was your personal answering machine. This office cannot take the responsibility for your not taking care of your personal affairs in a timely manner.
Plaintiff disagreed with all concerns raised in the evaluation and filed a grievance through her union. The matter was settled, and the December ...