December 6, 2007
ALYSSA D. SCALA, PLAINTIFF-APPELLANT,
COUNTY OF UNION, DEFENDANT-RESPONDENT, AND RICK PROCTOR AND DENISE SANTIAGO, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, No. L-408-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 3, 2007
Before Judges Wefing, Parker and Lyons.
Plaintiff appeals from a trial court order entered January 19, 2007, denying her motion for reconsideration of an earlier trial court order granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff filed a three-count complaint against defendants, including allegations that their failure to hire her as the Health Educator/Risk Communicator ("HERC") for Union County was discriminatory under the New Jersey Law Against Discrimination ("LAD"). N.J.S.A. 10:5-1 to -42. The trial court granted summary judgment to defendants. Plaintiff's appeal relates solely to her claim under the LAD.
Certain background facts must be set forth prior to analyzing plaintiff's claims. The federal government, through the Centers for Disease Control, provides grant money to assist local governments in creating a central network of health departments designed to protect the public and first responders from terrorist attacks that use biological and chemical weapons. This central network is known as a Local Information Network and Communication System ("LINCS"). For some period of time Union County's LINCS program was administered through Union Township and its Board of Health. Commencing in August 2003 plaintiff provided professional consulting services to the Union Township Board of Health as an independent contractor, serving as the HERC for the LINCS program. In that position, plaintiff was responsible for training local police, firefighters, other first responders, and the public, to recognize the signs of, and protect themselves from, terrorist attacks.
In 2004 Union County decided to take over administration of the LINCS program from Union Township. It required approval from the State to do so and, in conjunction with its application to the State, said that it was "currently negotiating the transfer of all existing LINCS full-time employees to the County." It also informed the State that defendant Denise Santiago would be appointed Health Officer for the County's LINCS program. In due course, the State approved the application.
Plaintiff received a letter from Union Township advising her that the LINCS program was being transferred to the county and that her position would be terminated effective September 1, 2004. The letter also stated, "[t]he County of Union has expressed an interest in hiring the current LINCS employees and will be setting up interviews during this transitional period.
[Y]ou will be contacted by the Union County Personnel Department for an interview." In anticipation of continuing her employment with the LINCS program, plaintiff relocated from Passaic County to Union County. Plaintiff alleged she made this move on the basis of representations made to her that she would be hired by the County for the LINCS program if she became a resident of the County.
In late July 2002 plaintiff met with defendant Santiago, Robert Scherr, Health Officer for Westfield, and Benedict Laganga, Union County's Director of Emergency Management. By letter dated August 17, 2004, the County notified plaintiff that it would not be offering her a position as the HERC for its LINCS program. This litigation followed.
The County hired a woman who was significantly older than plaintiff as its HERC for the LINCS program. Plaintiff contended that she was more qualified for the HERC position than the person who was selected, who had no experience training first responders while plaintiff had trained more first responders than any other LINCS program in the State. She also noted that her performance as HERC coordinator was viewed by the people with whom she had worked as good. Plaintiff alleged that defendants, in making this hiring decision, discriminated against her both in terms of gender and age. Specifically, plaintiff alleged that she was not hired because defendant Denise Santiago viewed her as a rival for the affections of defendant Rick Proctor. Defendant Proctor was the Health Officer for Rahway and a member of the Union County Board of Freeholders with whom Ms. Santiago was conducting an affair.
Plaintiff, in her deposition, set forth the basis for her assertions. She testified that Joanne Gemenden, who worked for the county and was a friend both to plaintiff and defendant Santiago told her in a telephone conversation that defendant Santiago had not liked the way Proctor looked at plaintiff when she walked into the meeting room. Plaintiff also testified that Ms. Gemenden told her that defendant Santiago, in discussing why plaintiff had not been hired, made the comment, "This is what big boobs and flipping your hair all over the County will get you."
Defendants denied that such personal considerations entered at all into the hiring decision. In discovery, both defendant Santiago and Ms. Gemenden denied making any such statements. Defendants noted that the successful applicant was a Certified Health Education Specialist, a rank that plaintiff had not yet achieved. In addition, defendant Santiago testified that she had observed several presentations that plaintiff had given and that she was not "comfortable" with the manner in which they were done. Defendant Santiago continued that she considered plaintiff "loud . . . abrasive and . . . non-professional." Ms. Santiago said she had discussed filling the position of HERC with various health officials within the county and that there was a consensus that plaintiff should not be hired for the HERC post based upon those characteristics.
Defendants moved for summary judgment, and the trial court granted the motion, concluding that plaintiff was unable to establish a prima facie case of discrimination based upon either age or gender.*fn1 The trial court considered the alleged statement of Ms. Gemenden to plaintiff, which was the linchpin of plaintiff's case, to be inadmissible hearsay and, after reviewing the record, concluded that absent that statement, there was no evidence of any discrimination. On that basis, the trial court granted defendants' motion.
We are satisfied that the trial court's analysis was correct in this regard. Plaintiff did not hear defendant Santiago make these comments, if indeed she did make them. Her only knowledge with respect to them came from statements made to her by another individual, and thus they clearly come within the definition of hearsay. N.J.R.E. 801(c).
Plaintiff points to Spencer v. Bristol-Myers Squibb, 156 N.J. 455 (1998), to support her contention that she should be permitted to testify at trial about Gemenden's alleged statements. We consider Spencer to be entirely distinguishable, however. Plaintiff in that case brought suit after she was denied the position of Director of Marketing Research. Id. at 458. She maintained that she had been told that she did not get the position because of concerns about her race and age. Id. at 457-58. The trial court held these statements to be inadmissible; we reversed and the Supreme Court affirmed our holding. Significantly, however, the statements at issue in that case were allegedly made by the defendant's Director of Human Resources, and they were thus deemed admissible under N.J.R.E. 803(b)(4). Here, Gemenden held no comparable position for the County, and N.J.R.E. 803(b)(4) provides no basis to consider plaintiff's proposed testimony admissible. If the statements were made, they rise no higher than office chat.
Plaintiff also contends that these statements are admissible under N.J.R.E. 803(c)(25), statements against interest. The theory underlying this exception to the hearsay rule is that "'by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably.'" State v. Brown, 170 N.J. 138, 148-49 (2001) (quoting State v. White, 158 N.J. 230, 238 (1999)). To be admissible under this exception, the statement must be so far against the interests of the declarant (here Ms. Gemenden) that a reasonable person in her position would not have made the statement unless she believed it to be true. White, supra, 158 N.J. at 238. Plaintiff's attempts to fit her testimony within the scope of this exception are entirely unpersuasive.