The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter comes before the Court on motion by Defendants
Mansfield Township ("Township") and Donna Snyder ("Snyder,"
collectively "Defendants") for summary judgment on the claims of
Plaintiff Barbara A. Bereczki ("Plaintiff"). For the reasons set
forth below, Defendants' motion for summary judgment will be
At the heart of this case are the events of February 2001
surrounding Plaintiff's removal from the Mansfield Municipal
Court office where she was employed as a municipal court
administrator. On February 16, 2001, Judge John A. Sweeney, the
county assignment judge responsible for overseeing the court and
its employees, faxed a letter to the Township removing Plaintiff from the court offices. Plaintiff alleges, among other claims,
that this removal deprived her of due process and the right to a
hearing, violated a settlement agreement between Plaintiff and
the Township, and constituted unlawful retaliation for the suit
resolved by the settlement agreement.
Prior to her retirement in March 2001, Plaintiff was a tenured
municipal court administrator in Mansfield Township since 1970.
She and her husband brought a lawsuit against the Township in
1999, raising a number of allegations including age and gender
discrimination. They entered into a settlement agreement with the
Township on January 29, 2001, in which the Township agreed to pay
a lump sum to Plaintiff and her husband. In exchange, Plaintiff
agreed to retire within sixty days or when her pension initiated,
whichever came first. The settlement also contained
nondisparagement and confidentiality clauses.*fn1
In February 2001, approximately two weeks after Plaintiff and
the Township entered into the settlement agreement, and six weeks
before Plaintiff's retirement was to go into effect, four of
Plaintiff's coworkers approached Defendant Snyder, the Clerk
Administrator for the Township, with complaints about Plaintiff's behavior and her negative influence on the office environment.
Snyder recommended that the employees put their concerns in
writing to communicate them to Plaintiff's immediate supervisor,
Judge Andronici, the municipal court judge responsible for
problems in the court's functions. (Pl.'s Opp. at 13.) Without
any further assistance or input from Snyder, the four employees
typed and faxed the following letter to Judge Andronici on
Dear Judge Andronici:
We are seeking your assistance with an ongoing
situation that is getting unbearable and we must
advise you that this is not a personal vendetta
against Barbara Bereczki, but an issue that must be
addressed to keep harmony.
It must be noted that Barbara puts a strain on the
offices' congenial atmosphere and she dictates what
the climate should be. Most days the atmosphere is
tension filled and we are afraid to say something
that might make her "snap".
Barbara talks loudly, stomps about, tosses papers and
slams doors when she gets upset. One day she is
cursing her job and "this place" and can't wait to
leave, the next day she is yelling, or literally
crying out loud that she has to stay at "this place".
She is up, she is down, she is in, and she is out and
seems like she is not around when you need a question
answered. She is so loud that it is impossible to
concentrate on a phone call when she is in our
office. With Barbara's actions/inactions we are
unable to perform our jobs professionally in the
Currently she is accusing us for "not sticking up for
her, because she sticks up for us" (e.g., trying to
get us a raise).
In closing you know that we like our jobs and the
four of us have a great harmonious working
relationship. We get the job done in the Violations Office in the
presence of, or the absence of Barbara. We hope you
understand our position and we await your direction.
(Pl.'s Ex. 4.)
Judge Andronici met with the four employees at a diner. Soon
thereafter, Snyder contacted Stephen Raymond, the Township
solicitor, because she was concerned that the four employees were
going to resign, and she wanted to close the office so that the
employees could go home to regain their composure instead of
quitting. (Pl.'s Ex. 16 at 10.) Raymond told her that she could
not close the office, and he set up a conference call with Judge
Sweeney, the county assignment judge. (Pl.'s Ex. 16 at 10.)
During the call on February 16, 2001, Snyder told Judge Sweeney
that Plaintiff's coworkers were very upset and expressed her
concern that they would quit their jobs. (Pl.'s Ex. 16 at 11.)
At some point after this conversation, Judge Sweeney faxed a
letter to Mansfield Township stating:
Mayor, Township Committee and Clerk Administrator:
After conferencing with Clerk Administrator, Donna
Snyder, Steve Raymond, Esquire, and Honorable Richard
Andronici, I am ordering that the Municipal Court
Administrator, Barbara Bereczki, be immediately
removed from the court and court offices in Mansfield
Township. I take this action to protect the integrity
of the court and for the safety and well-being of
other court employees.
(Pl.'s Ex. 5.) Pursuant to this letter, Plaintiff was not
permitted to return to the court offices, and Judge Sweeney's
letter was placed in Plaintiff's personnel file. There was a hearing on May 25, 2001, but it appears that Plaintiff could not
attend. (Pl.'s Ex. 14 at 74.) At the hearing, Judge Sweeney took
full responsibility for his letter. (Def.'s Ex. 3.)
Plaintiff was unable to find a new position after leaving her
job at the municipal court. At the time of her first deposition
on December 9, 2003, she had applied for seven jobs and received
an interview in response to one of the applications. (Pl.'s Ex.
13.) She did not receive that job and claims that she ultimately
had to take a job in another field at a significantly reduced
Plaintiff also raises claims related to a publicity flyer
released by Kelly Shea, a former councilman who was one of the
signers of the settlement agreement on behalf of the Township.
The flyer was distributed during Kelly Shea's reelection campaign
against Plaintiff's husband, and states in part that: "The
$300,000 Bereczki Family lawsuit against the township seeks more
of your tax dollars. This was settled once and they're going to
the well (our pockets) again." (Pl.'s Ex. 6.)
Plaintiff filed a Charge of Discrimination with the EEOC in
October 2001. The EEOC found that "there is reason to believe
that violations have occurred." Specifically, the EEOC
[E]vidence obtained during the investigation
establishes violations of Title VII of the Civil
Rights Act of 1964, as amended, and the Age
Discrimination in Employment Act, as amended, when
Charging Party was prematurely removed form her position and when a
disparaging termination letter was placed in her
personnel file. In addition, I have determined that
the evidence establishes a violation of the Americans
with Disabilities Act in that medical documentation
is illegally maintained in that file.
(Pl.'s Ex. 9.)
After receiving her "right to sue" notice from the EEOC,
Plaintiff filed this suit against Defendants Snyder and the
Township on January 21, 2003. Although unclear due to the
improper pleading style of the complaint,*fn2 Plaintiff
appears to make the following claims: (1) wrongful termination
and violation of due process for terminating Plaintiff's
employment without good cause or a hearing as required by
N.J.S.A. 2A:8-13.3; (2) breach of the 2001 settlement agreement
by disparaging and retaliating against Plaintiff in violation of
the no disparagement or retaliation clauses; (3) violation of
Plaintiff's "liberty interest" by the placement of Judge
Sweeney's letter in Plaintiff's personnel file; (4) creation of a
hostile work environment; (5) intentional interference with
business/economic advantage; (6) retaliation for the 1999 lawsuit; (7) gender and age discrimination; and (8) intentional
infliction of emotional distress.
Defendants filed the present motion for summary judgment on May
20, 2005. Although the motion hearing date was set for June 17,
2005, Plaintiff's counsel did not respond to Defendants' motion
until moving to file an opposition out of time on October 17,
2005. Plaintiff's counsel claimed they never received Defendants'
motion. This Court granted Plaintiff's motion to file out of time
over Defendants' opposition, and Plaintiff filed an opposition to
Defendants' motion on November 4, 2005.
II. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied
that "there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
330 (1986). A genuine issue of material fact exists only if "the
evidence is such that a reasonable jury could find for the
nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
The burden of establishing the nonexistence of a "genuine
issue" is on the party moving for summary judgment. Celotex,
477 U.S. at 330. The moving party may satisfy this burden by
either (1) submitting affirmative evidence that negates an
essential element of the nonmoving party's claim; or (2)
demonstrating to the Court that the nonmoving party's evidence is insufficient to
establish an essential element of the nonmoving party's case.
Id. at 331.
Once the moving party satisfies this initial burden, the
nonmoving party "must set forth specific facts showing that there
is a genuine issue for trial." Fed.R.Civ.P. 56(e). To do so,
the nonmoving party must "do more than simply show that there is
some metaphysical doubt as to material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Rather, to survive summary judgment, the nonmoving party must
"make a showing sufficient to establish the existence of [every]
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Serbin, 96 F.3d at 69
n. 2 (quoting Celotex, 477 U.S. at 322); Heffron v. Adamar of
New Jersey, Inc., 270 F. Supp. 2d 562, 568-69 (D.N.J. 2003). "If
the non-movant's evidence on any essential element of the claims
asserted is merely `colorable' or is `not significantly
probative,' the court must enter summary judgment in favor of the
moving party." Heffron, 270 F. Supp. 2d at 69 (citing
Anderson, 477 U.S. at 249-50.).
Where an element of the motion for summary judgment is
unopposed, the moving party is not automatically entitled to
summary judgment. Anchorage Assoc. v. Virgin Islands Bd. of Tax
Rev., 922 F.2d 168, 175 (3d Cir. 1990); Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991). Rather, "the
Court must first determine whether summary judgment is
appropriate that is, whether the moving party has shown itself
to be entitled to judgment as a matter of law." Talbot v. United
States, 2005 WL 2917463, *2 (D.N.J. 2005). However, where the
nonmoving party does not submit facts in opposition, "it is
entirely appropriate for this court to treat ...