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December 13, 2005.


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 granted.

I. Background

  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 February 13:
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 public eye.
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 salary.

  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 determined:
[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 ...

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