October 29, 2007
SHARON ANGLIN, PLAINTIFF-APPELLANT,
PRUDENTIAL FINANCIAL INC.,*FN1 DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Civil Division, Essex County, Docket No. L-7583-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Wefing, R. B. Coleman and Lyons.
Plaintiff Sharon Anglin (Anglin) appeals from an order granting summary judgment to defendant Prudential Investment Management, Inc. (Prudential) on plaintiff's claims of gender and race discrimination. We affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On July 22, 1985, Anglin, an African-American female, began her employment with Prudential. By January 1999, Anglin had been promoted to Operations Analyst and reported to Joann Rich (Rich). In May 1999, Rich promoted Anglin to her final position as Accounting Associate. On August 10, 1999, Rich performed an annual review of Anglin in her new position, which included four categories in which Anglin received a less than satisfactory grade.
From May 1999 to July 2000, Anglin reported to Associate Manager Rosemary Zeppetella (Zeppetella). Prudential claimed that Zeppetella found Anglin difficult to manage, for example, demanding a vacation during "peak times of the month that she performs her core responsibilities." Prudential further claimed that when Zeppetella and her supervisor, Bob Orth (Orth), refused the vacation, Anglin complained to Human Resources (HR). On June 1, 2000, Orth sent an email to HR detailing his interactions with Anglin. In that email, Orth stated that he felt that [Anglin] deliberately requested these days off, knowing the reaction that would be received by her management team, and is now making false accusations that her management team is restricting her vacation time alone.
She currently intends not to come in the office during the weeks requested off, regardless of her management's decision, and is apparently following up with HR as well.
In late July 2000, Zeppetella performed a review on Anglin, wherein Anglin received a performance grade of "3," which is a grade that means "meets expectations."*fn2 Anglin received a "not meeting expectations" in one area, "Partnering: Collaborating for Better Results." The comment to this rating said in relative part, "More open communication between Sharon and her unit's management would help to establish more effective working relationships." Anglin believed that this comment was "deliberate and malicious and . . . would have an impact on [her] future career."
Joseph McDonald (McDonald) was promoted to vice president of the Regulatory and Investment Reporting Group in early 2000. As vice president, McDonald was responsible for the management of approximately fifty employees, including Anglin, Orth, John Drust (Drust), Zeppetella, and Raymond Falconer (Falconer). As part of his job responsibilities, McDonald met with Anglin on August 2, 2000, to discuss the review. According to McDonald's affidavit, "Anglin complained to me about her review and accused Zeppetella of being 'vicious' and 'manipulative' and further claims that Zeppetella was 'harassing' her."
When Anglin emailed Orth on October 4, 2000, concerning Zeppetella's comment, Orth was able to provide several examples substantiating it, all of which, however, were denied by Anglin. When McDonald and Anglin met again on October 9, 2000, Anglin said that the review was "a conspiracy," was inaccurate, and was inappropriate. McDonald claimed that Anglin disputed the review's language in eight out of twelve of the core competency areas, even though she had received a grade of "meets expectations" in all of them except one.
Falconer replaced Orth as Zeppetella's supervisor in early October 2000. Zeppetella then reported directly to Falconer, while Anglin continued to report to Zeppetella. Anglin told McDonald that this was "a positive" and that she was pleased with the change in her reporting structure.
On October 20, 2000, Anglin eventually signed the Zeppetella evaluation, but attached a rebuttal, which included, "Paragraph III: Communicating with my Manager is a two way proposition. For me to know that there is a miscommunication it should not be on my appraisal. I will strive to see that this situation is remedied."
Falconer stated that he reorganized the reporting structure for the period from January 2001 to December 2001 to alleviate issues between Anglin and Zeppetella by having Anglin report directly to him. In February 2001, Anglin applied for a senior analyst position in another group and met with David Collier (Collier), manager of that group. Collier requested a copy of Anglin's current resume and a signed copy of her last full year performance review. Anglin provided a 1998-1999 review. Anglin stated that she intended on sending the most recent one the next day. Collier, however, called Falconer and asked if there was a more recent review of Anglin's performance. Falconer replied that there was, but claimed that there was no additional substantive conversation with Collier. Collier then asked Anglin for the most recent review and Anglin sent him a copy of the review Zeppetella conducted, including Anglin's appended comments. After interviewing Anglin, Collier decided not to hire Anglin based on "several different reasons, one of which concerned [Anglin's] failure to originally send [Collier] her most recent review, and none of which had anything to do with Falconer."
Anglin alleged that Falconer began approaching her in the spring of 2001, approximately March or April, indicating that he wanted to "have sex" with her. Anglin claims that "[h]e specifically . . . said: I want to go to your house to have sex with you." The next incident occurred around July 2001. Falconer allegedly asked Anglin to reconsider allowing him to come to Anglin's house because "he's a good guy." The third incident took place about four weeks later. Anglin alleged that Falconer attempted to make Anglin feel guilty for not having sex with her and invited her to his New Year's party. The last incident was in September 2001. Anglin did not remember the specifics of any of these conversations and did not remember if anybody witnessed them.
While this harassment was allegedly occurring, Anglin interviewed with Bethany Abraham (Abraham) for a position as an Associate Analyst in another department. On July 18, 2001, Abraham informed Anglin that the reason she was not selected for the position was due to Anglin's performance review that "mentioned that there was room for improvement for communications between yourself and your unit's management. [These] skills would be vital for this position."
On February 19, 2002, Falconer rated Anglin a "3," "Meets Expectations," on her 2001 calendar year performance review.
Falconer stated that Anglin's "performance over the past year has been satisfactory."
Falconer changed the reporting structure again and, beginning in February 2002, Anglin began reporting directly to Drust, who reported to Falconer. According to McDonald, Anglin expressed disappointment at this change.
On May 31, 2002, McDonald and Falconer met for a regular status meeting, at which the topic of whether to promote Anglin was raised. Falconer stated that Drust, who had been supervising Anglin for approximately three months, thought that "Anglin was doing well and that she might be on track for a promotion to Team Lead." McDonald stated that although Anglin was "meeting expectation," she was not "exceeding expectations" and had several developmental areas. In his affidavit, McDonald asserted:
I make the decisions regarding whether to promote an employee within my Department. I do not typically give consideration to the promotion of an employee unless he/she has received an overall performance evaluation grade of 4 which equates to "Performance Exceeding Expectations" (i.e., defined as "this employee consistently meets and frequently exceeds performance expectations while demonstrating a high level of proficiency in many of the competencies requires in his or her job"). (A grade of 5 is the highest grade and equates to "Performance Greatly Exceeding Expectations").
In McDonald's view, "based on [Anglin's] performance appraisals, several developmental areas and her fairly recent insubordinate treatment of her supervisors, Anglin was not ready for a promotion."
Anglin, however, disputed that McDonald was the decision maker. She claimed that Drust told her that Falconer would be the person to make the promotion decision. She alleged that Drust told her that Falconer said, without any justification, not to promote Anglin. Anglin further alleged that Drust said that he would speak directly to McDonald on Anglin's behalf if Falconer did not agree with the promotion.
On July 31, 2002, Anglin filed a charge against Falconer with the Human Resources Department (HR) claiming that Falconer had sexually harassed Anglin when he was supervising her. Annie Wong-Degnan (Degnan) met with Anglin on July 31, 2002, to discuss Anglin's claim of sexual harassment and retaliation.
After meeting with Anglin for three hours on August 22, 2002, Elaine LoCassio (LoCassio) began an investigation into Anglin's allegations. As a result of the investigation, LoCassio prepared an interoffice memorandum dated December 20, 2002, summarizing her investigation into Anglin's allegations. LoCassio first stated that Anglin claimed:
1. [T]hat beginning in or about February 2001 or March 2001, Ray Falconer, Manager of Investment Reporting, subjected her to unwelcome sexual advances;
2. [T]hat two of Falconer's direct reports, Rosemary Zeppetella and Marguerite Pilsbury, are having "affairs" with Falconer, as is Susan Conlin, another Prudential employee who does not work in Falconer's area;*fn3
3. [A]nd that because she refused to comply with Falconer's sexual advances:
a. Falconer gave negative feedback about her to a posting manager;
b. Falconer denied her a promotion;
c. Falconer took away one of her projects;
d. [A]nd Falconer gave her poor Mid Year Reviews and Performance Appraisals;
4. In addition, Anglin claimed that in or about June, 2002, she informed her Associate Manager, John Drust, that she believed Falconer denied her a promotion and "inhibited her career" because she refused to comply with his sexual advances.
5. Lastly, Anglin asserted that Drust has been retaliating against her by treating her poorly.
As part of the investigation, LoCassio conducted private interviews with over a dozen people. After an extensive, four-month investigation, LoCassio was unable to find any support for Anglin's allegations.
McDonald claimed that after Anglin filed her charge with HR, she acted "in an insubordinate manner toward her supervisors and was extremely difficult for Drust and Falconer to manage," including failing to respond to questions, picking up the telephone when Drust tried to speak with her, walking away from Drust when he was speaking with her, and refusing to accept the individual development plan that Drust and Falconer had prepared for her. McDonald contended that even after a series of warnings, Anglin's behavior got even worse. On March 14, 2003, Degnan, Falconer, Anglin, and McDonald met to discuss Anglin's behavior. At the meeting, the absenteeism-occurrences policy was explained to Anglin. Degnan stated that upon Anglin's next unexcused absence, Anglin would begin attendance counseling.
After the receipt of her mid-year review from Drust in mid-August 2003, Anglin did not report to work for the entire following week. As a result of her absences, Anglin received a "final warning" for attendance occurrences on August 18, 2003, and attended a counseling session with an HR representative, Barbara Briggs (Briggs), and Drust on August 27, 2003, at which time she refused to sign a mid-year review.
Prudential alleged that even after the counseling, Anglin arrived late on August 29, 2003, and September 8, 2003. Anglin, however, had no recollection of arriving late. Prudential further alleged that on September 10, 2003, Anglin again ignored Drust when he tried to speak with her. On the same day, Drust sent Anglin a meeting invitation for September 12, 2002, which was declined. After Anglin allegedly refused to speak to Drust, he advised Falconer and Briggs of "Anglin's continuing insubordinate conduct" and emailed them that "[Anglin] declined my request to meet. What should I do next? I am at a loss as she is not responding to me when I talk to her."
On September 11, 2003, around 8 a.m., Briggs spoke to Anglin while she was still at home. Prudential claimed that Briggs requested that they meet at 9:30 a.m. Anglin showed up at work at 9:00 a.m., but did not attend the meeting as requested. Briggs left her a voicemail at 9:50 a.m. and followed up with an email at 10:12 a.m. Anglin responded by email at 10:30 a.m. stating that she would not meet with Briggs.
McDonald stated that he discussed Anglin with Briggs and Chuck Crocco, a vice president of HR, who was involved in issues regarding Anglin over the years. Based on these discussions, McDonald decided to terminate Anglin's employment with Prudential. The HR representatives concurred with McDonald's decision. McDonald stated that the decision to fire Anglin was his and not Falconer's or Drust's. On September 11, 2003, Anglin was fired.
On September 3, 2004, Anglin filed her complaint in Essex County Law Division which consisted of nine counts:
(1) Sexual harassment - hostile work environment in violation of the Law Against Discrimination;
(2) Quid Pro Quo sexual harassment in violation of the Law Against Discrimination;
(3) Failure to promote was gender discrimination in violation of the Law Against Discrimination;
(4) Sex discrimination in wage payment in violation of N.J.S.A. 34:11-56.1 et seq.;
(5) Race discrimination in wage payment in violation of N.J.S.A. 34:11-56.1 et seq.;
(6) Terminating Sharon Anglin was a reprisal taken against her in violation of the Law Against Discrimination;
(7) Aiding and abetting;
(8) Intentional infliction of emotional distress; and
(9) Tortious interference with prospective economic gain.
Prudential filed its answer and affirmative defenses on December 10, 2004. Interrogatories were exchanged and both parties conducted depositions. Anglin deposed three Prudential employees: Falconer, Drust, and Zeppetella. Prudential deposed Anglin. It should be noted that Anglin did not depose McDonald, even though McDonald's role as a decision-maker should have been known to Anglin.
On March 10, 2006, the parties entered into a "consent stipulation voluntarily withdrawing plaintiff's claims for emotional distress" wherein they stipulated "that all claims for damages relating to emotional distress alleged in Plaintiff's Complaint in Counts One through Counts Nine, and Count Eight of Plaintiff's Complaint are dismissed with prejudice but without costs."
On September 22, 2006, Prudential filed a motion for summary judgment on counts one through seven and nine, which included a brief, a statement of material facts, and thirty-four exhibits. Among these exhibits were Prudential's anti-harassment and attendance policies, various emails, Anglin's performance reviews from before and after the alleged harassment, various memoranda, Drust's log of his interactions with Anglin, transcripts, and affidavits.
On October 17, 2006, Anglin filed opposition to the motion, which included a three-page letter brief, a counterstatement of material facts, and two exhibits. Although Anglin's counsel failed to cite any law, the brief provided a short summary of Anglin's argument that, in the spring and summer of 2001, Falconer made sexual advances to Anglin. Additionally, Anglin claimed that she was subject to "harassment and abuse which, given reasonably [sic] inferences favorable to my client, was either directed or influenced by Raymond Falconer."
Anglin mentioned four "milestone events" in opposition to the summary judgment motion. First, Anglin claimed that she was denied a promotion in 2002 because Falconer would not promote her. Second, Anglin argued that the investigation into the alleged sexual harassment took six months during which time her cubicle was still across the aisle from Falconer's. Third, Anglin alleged that Falconer thwarted her efforts to transfer out of the department. Fourth, Anglin claimed that her employment was terminated "based on fabricated claims of insubordination" by Falconer and Drust. Anglin claimed that since this "continued course of conduct" began in spring of 2001 and ran until Anglin was fired on September 11, 2003, which is both before and after the statute of limitations, "the courthouse doors should not be closed simply because some of the facts occurred prior to the statutory period."
On October 30, 2006, Prudential filed a reply brief and a response to Anglin's counterstatement of material facts. On November 3, 2006, Judge Donald Goldman heard the motion. Judge Goldman began by asking Prudential to address whether "there is not at least a retaliation claim" which he characterized as Prudential's "most difficult hurdle." Prudential's counsel argued, inter alia, that the chronology does not support a claim of retaliation and that Anglin's pattern of insubordination is well-documented. Anglin's counsel had nothing to add.
When questioned by the court, Anglin's counsel responded that he had no support to prove that McDonald was influenced by Falconer. Anglin's counsel then represented that discovery was complete and a trial date was set for December 11, 2006. Anglin's counsel conceded that they had no evidence to prove that McDonald acted in a retaliatory fashion. Without adopting the argument, the court then summarized Anglin's position:
THE COURT: And what I see your best case arguing is that, A, there is a valid retaliation claim which is not barred by statute of limitations because the lawsuit was filed a few days less than a year after the termination; that that retaliation claim piggybacks onto it. The harassment immediately preceding thereto that is also retaliatory and perhaps the argument is that that also piggybacks onto it the prior discrimination claims as a kind of a course of continuing conduct.*fn4 . . . .
MR. STERN: That's essentially what I'm saying, right.
THE COURT: I'm not saying I agree with it, but I think -- have I fairly articulated what your position is?
MR. STERN: I think that's a fair statement and just that I think --THE COURT: And my concern with it is that if the retaliation claim fails at the end, the rest of it falls down, too.
MR. STERN: At the end, yes. Retaliation claim to the extent that falls within the limitations period. It's within the good period, then --
THE COURT: And if there's no valid retaliation claim, the rest of it's untimely.
MR. STERN: Right. Or it may be -- the continuing course of conduct may be evidential of the retaliation within the period, although damages may be limited to those that happen within the period.
After the colloquy continued with both parties, Judge Goldman concluded that Anglin had failed to prove a prima facie case for several of her claims. The court found that "[t]he other claims, the quid pro quo, sexual harassment, the gender discrimination, and the failure to promote, the hostile work environment, harassment claims are all time-barred unless they can be bootstrapped in with a continuing violation claim." The continuing violation argument, in turn, relied on the validity of the retaliation claim.
Judge Goldman found no evidence that retaliation was "a determinative factor" in McDonald's decision. The judge also found no basis in fact for the assertion that there was some "under the table" influence upon McDonald that played a role in his firing of Anglin. The trial court then granted summary judgment in favor of Prudential. The order also dismissed the remaining counts with prejudice.
Anglin now appeals from that order requesting that it "be reversed and the matter remanded for a full trial." In her appeal, Anglin raises the following for the court's consideration:
SUMMARY JUDGMENT MUST BE REVERSED AS THE COURT IMPROPERLY MADE FACTUAL FINDINGS BEST LEFT TO A JURY.
A. THE COURT CORRECTLY DETERMINED THAT PLAINTIFF'S COMPLAINT WAS NOT TIME BARRED.
B. PLAINTIFF'S CLAIM FOR SEXUAL HARASSMENT REQUIRES A FULL TRIAL TO DETERMINE WHETHER MCDONALD RELIED UPON THE LOCASSIO REPORT OR OTHER IN-HOUSE MEMOS.
C. A HOSTILE WORK ENVIRONMENT IS PREDICATE FOR TOTALITY OF CIRCUMSTANCES TEST RELATIVE TO FACT ISSUES.
We begin our consideration of this argument by restating applicable legal principles. According to Rule 4:46-2, summary judgment must be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. Even though the allegations of the pleadings may raise an issue of fact, if the other papers show that, in fact, there is no real material issue, then summary judgment can be granted. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). An opposing party who fails to "set forth specific facts showing that there is a genuine issue for trial" cannot complain if the court takes as true the uncontradicted facts in the movant's papers. R. 4:46-5(a); Judson, supra, 17 N.J. at 75.
In consideration of a summary judgment motion, the trial court must not "weigh the evidence and determine the truth of the matter," it must only decide whether there is a genuine issue for trial. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Furthermore, the trial judge must decide whether, viewed in the light most favorable to the non-moving party, the evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid.
On appeal, the court uses the same standards. It decides first whether there was a genuine issue of material fact. The fact must be not just one "'of an insubstantial nature'; a non-movant will be unsuccessful 'merely by pointing to any fact in dispute.'" Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998), certif. denied, 115 N.J. 59 (1989), (quoting Brill, 142 N.J. at 529-30). If there was not, the court then decides whether the lower court's ruling on the law was correct. Ibid. (citing Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988)). We review the "trial court's interpretation of the law and the legal consequences that flow from established facts" de novo. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995); Pressler, Current N.J. Court Rules, comment 3.1 on R. 2:10-2 (2008).
The trial court found, and Anglin's counsel conceded, that should the retaliation claim fail, Anglin's other counts under the New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, would be barred by the statute of limitations. A valid retaliation claim would give rise to a continuing course of conduct analysis that could rescue the LAD claims from being time-barred. We agree with Judge Goldman's analysis. Therefore, we must first address the retaliation claim, which is the keystone of Anglin's argument.
To establish a prima facie claim of retaliation under the LAD, an employee must establish: (1) the employee engaged in a protected activity known by the employer; (2) thereafter his or her employer unlawfully retaliated against him or her; and (3) the employee's participation in the protected activity caused the retaliation. Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995). See also Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996); Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49, (App. Div. 1995); Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). If the plaintiff establishes a prima facie case, the burden of production -- but not the burden of persuasion -- shifts back to the employer to articulate a legitimate reason for the decision. Woods-Pirozzi, supra, 290 N.J. Super. at 274. "Plaintiff must then show that a retaliatory intent, not the proffered reason, motivated defendant's actions. Plaintiff may do this either indirectly, by proving that the proffered reason is a pretext for the retaliation, or directly, by demonstrating that a retaliatory reason more likely than not motivated defendant's action."
Assuming that Anglin sufficiently alleged that she engaged in a protected activity known by Prudential, such as reporting sexual harassment, Prudential has produced voluminous evidence to support its assertion that there was, in fact, a legitimate reason for firing Anglin. We agree with Judge Goldman that there is no evidence in the record, nor has Anglin presented any evidence other than conclusory statements, that McDonald's rationale for firing Anglin was merely pretextual.
Again, Anglin complained that "the factual context of this case shows that only after [she] complained to Human Resources did she become 'persona non grata' and allegedly difficult to work with, i.e., 'not a team player.'" The evidence presented simply does not support this allegation. Anglin's job performance was documented as "failing to meet expectations" before any allegation or report of sexual harassment. Anglin has failed to present any proofs that a "retaliatory reason more likely than not motivated defendant's action." Woods-Pirozzi, supra, 290 N.J. Super. at 274. Simply put, Anglin has failed in her burden to sufficiently demonstrate retaliatory intent and that Prudential's proffered reason was a mere pretext.
Rule 4:46-5 requires more from a non-movant in a summary judgment proceeding than mere speculation and conclusory statements. "[A]n adverse party may not rest upon the mere allegations or denials of the pleading, but must respond by affidavits meeting the requirements of [Rule] 1:6-6 . . . setting forth specific facts showing that there is a genuine issue for trial." R. 4:46-5(a). Rule 1:6-6, in turn, requires that affidavits be "made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify . . . ." R. 1:6-6. Contrary to these rules, Anglin merely provided the court with her unsupported speculation that the firing decision was made by, or based upon information from, Falconer. Anglin had the opportunity during discovery to depose McDonald to substantiate her claims. She failed to do so. Lacking these proofs, her retaliation claim fails and, as there is no continuing course of conduct within the period allowable by the statute of limitations, all of the remaining LAD claims are time-barred.
We have carefully considered, in light of the record and the applicable law, each of Anglin's remaining contentions on appeal. We are satisfied that none of those contentions is of sufficient merit to warrant discussion in a written opinion, and we affirm. R. 2:11-3(e)(1)(E).