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Michael v. Robert Wood Johnson University Hospital

January 15, 2008

ALICE MICHAEL, PLAINTIFF-APPELLANT,
v.
ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL AND MICHAEL ZEGAR, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. L-10599-02.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 24, 2007

Before Judges Wefing, Parker and R. B. Coleman.

Plaintiff appeals from a trial court order awarding defendant $129,692.79 in counsel fees and costs. After reviewing the record in light of the contentions asserted on appeal, we reverse and remand for further proceedings.

Plaintiff is a part-time employee of defendant Robert Wood Johnson Hospital, and she has worked in that capacity for more than twenty years. In 2002 she filed suit against the Hospital and one of her superiors, alleging that she had been the victim of age discrimination and a hostile work environment. She also asserted claims of negligence, breach of contract, and retaliation. Litigation of plaintiff's claims did not proceed smoothly, and defendants' counsel was, on several occasions, awarded counsel fees because of plaintiff's derelictions in discovery. The trial court eventually granted summary judgment, dismissing all of plaintiff's claims. Plaintiff appealed, and we affirmed. Michael v. Robert Wood Johnson Hospital, No. A-0633-04 (App. Div. May 1, 2006).

In the course of our opinion we noted that plaintiff's claims of age discrimination and hostile work environment revolved around three discrete areas: the Hospital's vacation policy, its policy on tuition reimbursement, and her performance evaluations. With respect to our affirmance with regard to the Hospital's vacation policy, we stated the following:

Plaintiff admitted in her deposition that the vacation policy was uniformly applied to all members of the department, not just to herself. She also testified that she thought she was entitled to special consideration in arranging her vacation because of her practice of booking so far ahead. In response to the question, "Did you believe that you were entitled to special consideration?" she responded, "Yes." She also agreed in her deposition that the revised vacation policy applied to all members of the department, several of whom were older than plaintiff and that she had no evidence that the policy had been instituted to "get" her. [slip op. at 4.]

In connection with plaintiff's claims relating to the Hospital's tuition reimbursement policy, we noted that plaintiff had, over the course of her employment, been reimbursed for tuition for more than thirty courses she had taken. Her claims in this litigation revolved around two courses for which plaintiff's request for reimbursement were initially unsuccessful. In our opinion affirming the trial court's grant of summary judgment with respect to plaintiff's claim of age discrimination in connection with tuition reimbursement, we noted that plaintiff was unable to establish that a younger employee received reimbursement that had been denied to plaintiff and that plaintiff eventually received full reimbursement for the courses she wished to take.

Plaintiff's claims with respect to her performance evaluations revolved around a change both in her job description and the evaluation form itself. Plaintiff complained that the revised form included job functions she did not perform; she received a perfect score for those functions she did perform and an average score for those she did not. She complained this was unfair to her and that two younger workers received perfect evaluations on job functions their positions did not encompass. In discussing this claim, we stated:

. . . Plaintiff had no proof to support that assertion [i.e., with respect to the two younger workers]; she had never seen the job evaluations of those individuals nor had she seen their job descriptions. And . . . plaintiff had never had the opportunity to observe their performance at work.

Plaintiff has not suffered any adverse consequences as a result of the change in evaluation procedures or the grievances she has filed. She has received every scheduled raise and has lost no opportunities for advancement. She has never been suspended or received any disciplinary action throughout her entire employment with the Hospital. [slip op. at 9.]

Following our affirmance of the trial court's order granting summary judgment, defendants promptly moved for counsel fees and costs. In their moving papers, they relied both upon the frivolous claims statute, N.J.S.A. 2A:15-59.1, and upon the Law Against ...


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