On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1520-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Grall.
Plaintiff Demeshia Seldon appeals from orders denying her motion for a new trial and entering final judgment in favor of defendant Young Men's Christian Association of Paterson ("YMCA"). Plaintiff alleged retaliatory termination of employment in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14. She claimed she was discharged because she reported an incident of suspected child abuse -- a touching of one three-year-old child by another three-year-old child -- to the Division of Youth and Family Services (DYFS). The jury found that defendant did not retaliate against plaintiff "by terminating her because she reported" the incident to DYFS or "because she objected to or refused to participate in . . . not notifying DYFS." Judge Humphreys denied defendant's motion for a new trial for reasons stated in a written decision of October 3, 2006.
In November 2001, plaintiff accepted employment with the YMCA as director of Even Start, a literacy project for low-income families. Several of the students participating in Even Start also attended Memorial Day Nursery, which was affiliated with the YMCA as a participant in the Even Start program. Plaintiff received her first performance appraisal on December 11, 2002. Her supervisor, Lawrence Gutlerner, executive director of the YMCA, reported that she was "fully competent in [her] present job" but noted a need for improvement in the area of "professional relationship with peers." On April 4, 2003, Gutlerner terminated plaintiff's employment "due to a breakdown in communication between" plaintiff, members of her staff, and Even Start's main collaborator, Memorial Day Nursery. According to Gutlerner, plaintiff had engaged in conduct that caused an irreconcilable rift with her staff and staff of Memorial Day Nursery that precluded her from functioning effectively as the director of Even Start.
The precipitating event occurred on March 11, 2003. A three-year-old girl attending Memorial Day Nursery told the teacher's assistant that a boy in her class had touched her. She pointed to her genital area when asked where she had been touched. The assistant informed the teacher and an "incident report" was prepared. According to the teacher's assistant, when she told the girl's mother the following day, the mother said "don't worry." According to the mother, no one told her about the incident until March 19.
It is not clear when plaintiff learned about the touching incident. Although plaintiff's assistant Michael Moro claimed that he overheard a conversation about the incident and told plaintiff about the allegation on March 14, she testified that she was not told until March 20.
On March 20, plaintiff attempted, without success, to contact Georgiana Brown-Jefferson, a "family worker" assigned to Memorial Day Nursery.
On March 21, a Friday, the mother of the girl who alleged she was touched asked plaintiff for advice on how to tell her husband about the incident. Plaintiff told her to obtain a copy of the "incident report." Plaintiff then called the "state monitor" of the Even Start Program, who instructed her to act as an advocate for the girl's family if the parents wanted her help. Later on March 21, the mother informed plaintiff that she had been to Memorial Day Nursery and was told that she and her husband would receive a copy of the report at a meeting scheduled with members of the staff to be held on Monday, March 24.
Plaintiff took immediate action. She went to Memorial Day Nursery with the mother and saw both the assistant director, Edulia Bolanos, and a "family worker," Brown-Jefferson. Plaintiff testified about conversations that were professional but unproductive.
Bolanos and Brown-Jefferson described their separate conversations with plaintiff quite differently. According to Bolanos, plaintiff was clearly upset, angry, aggressive, disrespectful, intimidating and accusatory. After plaintiff left, Bolanos wrote a letter of complaint to Gutlerner in which she noted that plaintiff "was very disrespectful, unprofessional and left no room for constructive discussion." According to Brown-Jefferson, plaintiff barged into a room where she was having a conference with a parent. Brown-Jefferson left the conference to speak to plaintiff in the hallway, where plaintiff angrily demanded the "incident report" in a way that was "intimidating" to Brown-Jefferson. Brown-Jefferson later told both Bolanos and Gutlerner that she did not think she could work with plaintiff again.
When plaintiff returned to her office on March 21, Gutlerner spoke to her about Bolanos's complaint. Plaintiff told Gutlerner that DYFS should be contacted. Because the child was in no danger over the upcoming weekend, Gutlerner suggested plaintiff wait until after the Monday meeting with the girl's parents. Plaintiff left the meeting and attempted to call DYFS, but the office was closed. She reached DYFS on Monday, March 24, 2003.
On Monday March 24, plaintiff and her assistant Moro had a disagreement. Moro submitted a memo detailing his recollection of advising plaintiff about the alleged touching. Moro and plaintiff disagreed about the date. Plaintiff directed Moro to correct his memo to reflect her recollection, but he refused because it was not consistent with the facts as he remembered them. According to Moro, plaintiff cursed at him, made her demand for revision of his memo in an abusive and ...