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Fabrikant v. Arthur J. Gallagher & Co.


February 4, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4417-04.

Per curiam.


Submitted October 31, 2007

Before Judges Axelrad, Payne and Messano.

Plaintiff Gail Fabrikant appeals from the July 10, 2006, order granting summary judgment to defendants Arthur J. Gallagher & Co. (Gallagher), John P. Woods Company (the Company), John P. Woods, Jr. (John Woods), and John P. Woods, III (Jay Woods), and dismissing plaintiff's complaint. She contends the "trial court overstepped its authority by making numerous findings of material fact where those facts were in clear dispute, and by resolving all inferences in favor of the moving party, instead of [her]."

In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We decide first whether there was a genuine issue of material fact; if not, we then decide "whether the motion judge's application of the law was correct." Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.

In her complaint, plaintiff alleged: 1) defendants subjected her to a hostile work environment "[b]ased upon her . . . Jewish faith," in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 through -42 (the LAD); 2) retaliated against her because she engaged in protected activity under the LAD; and 3) that John Woods and Jay Woods aided and abetted Gallagher and the Company in its discriminatory conduct. She alleged that as a result of these discriminatory practices, she was terminated from her employment as a senior administrative officer with the company, and she sought compensatory and punitive damages, "appropriate equitable relief," reasonable attorney's fees, and costs.

The facts in the motion record viewed in a light most favorable to plaintiff disclose that the Company was a reinsurance brokerage firm located in Jersey City, New Jersey, and a wholly-owned subsidiary of Gallagher, an insurance brokerage company with its principal place of business in Illinois. John Woods was the founder and chairman of the Company, and his son, Jay Woods, was its president.

On October 16, 2002, plaintiff was hired as vice-president and senior administrative officer and her official duties were to commence on January 1, 2003. Plaintiff was to be trained in the Company's procedures and policies for the remainder of the year by Josephine A. Hoey, who was retiring and to whose position plaintiff was succeeding. Plaintiff understood that as of January 1, 2003, she would assume responsibility for the Company's human resources department, other administrative functions, and liaison duties with Gallagher regarding human resource-related issues, and that she would be reporting directly to Jay Woods.

However, on her first day on the job, plaintiff was told by a co-worker that Hoey would remain working for the Company in a limited capacity on special projects after January 1. In depositions, plaintiff testified that she was "surprised" and "disappointed" to learn that Hoey was not leaving the company entirely as of the start of the new year.

Plaintiff believed Hoey was upset because she was taking over her position, and noted that Hoey "didn't make [the transition] easy." Plaintiff also believed that Hoey was not training her properly, and by mid-November 2002, the training stopped. When Hoey was on vacation during the Christmas holiday, plaintiff took all of the Company's human resource files out of Hoey's office and moved them to her own office, prompting Hoey to complain to Jay Woods that plaintiff had "stolen" the files.

Despite these tensions, plaintiff testified she had a great relationship with Hoey and John Woods. Woods himself, however, testified in his deposition that Hoey would complain to him at least once a week about plaintiff giving her a difficult time during the transition. Plaintiff maintained her relationship with John Woods was very positive during this time and she frequently had lunch with him and spoke to him regularly regarding work-related issues.

Plaintiff testified that a critical incident occurred on January 7, 2003, when Hoey came to her, unsolicited, and told her that John Woods "call[ed] blacks 'niggers' and [was] an anti-Semite who hate[d] Jews," and that he would not work with either African-Americans or Jews. Plaintiff claimed that she responded to these comments by telling Hoey she was Jewish, and that Hoey was surprised.

Plaintiff alleged that Hoey also told her that an African-American candidate had applied for plaintiff's position but Hoey knew John Woods would never work directly with her because of her race. Hoey claimed she did not forward the application for further review because of this. Plaintiff further testified that Hoey told her that she was not allowed to hire African-American males at all.

Plaintiff acknowledged that no one at the Company ever asked her if she was Jewish, that she never told John Woods or Jay Woods that she was Jewish, and that she did not indicate by her outward behavior, such as taking off for a Jewish holiday or wearing a Star of David at work, that she was of the Jewish faith.

Plaintiff did not know whether Hoey ever told John or Jay Woods she was Jewish, but claimed that after her disclosure to Hoey she was treated differently. She claimed that John Woods and Hoey stopped communicating with her except through memos sent to plaintiff through Jay Woods.

Plaintiff acknowledged that several employees told her that Hoey was mean-spirited, vengeful, and untrustworthy. Plaintiff testified that Hoey was rude to others, that John Woods had displayed a bad temper toward other employees, and that both had tried to "destroy" other employees. Plaintiff admitted she had not witnessed, nor was she aware of any anti-Semitic comments made by John Woods. She was also unaware of any conduct or other complaints regarding John Woods's allegedly discriminatory behavior, although she learned that a prior employee had filed a lawsuit against the Company because John Woods allegedly ridiculed him for being obese.

Nevertheless, plaintiff concluded that the sudden iciness in the relationship between Hoey, John Woods, and herself was due to Hoey's knowledge of her faith and her belief that Hoey had told Woods she was Jewish. When asked why she concluded that John Woods would not interact with her because she was Jewish, plaintiff replied "[b]ecause there was no other reason for him to speak to me or treat me the way he did."

On January 23, 2003, plaintiff reported Hoey's statements about John Woods's alleged bigotry, and the mistreatment she was receiving from Hoey and Woods to Eleanor Maddy, senior vice-president of the Company. However, plaintiff did not tell Maddy that she was Jewish, nor did plaintiff complain that Woods or Hoey were treating her rudely because of her faith. She did, however, tell Maddy that there were "EEO violations" at the company, and Maddy acknowledged there were.

Plaintiff testified that Maddy told her that John Woods was indeed a bigot but that if she complained, both she and plaintiff could lose their jobs. Plaintiff also claimed Maddy was aware that Hoey disqualified a potential applicant to succeed her based upon her race.*fn1

Plaintiff spoke to Jay Woods about the tension between herself, Hoey, and John Woods in late January. Jay Woods was sympathetic, acknowledged the problem, and told plaintiff he would try to resolve it. Plaintiff never told Jay Woods that she was Jewish, or that she believed some of the problems were the result of either Hoey's or John Woods's religious bias.

On February 6, 2003, John Woods sent a memorandum to Jay Woods discussing his disappointment with plaintiff's work performance and recommending her termination. The memorandum also indicates the elder Woods's intention to discuss the issue directly with Elizabeth Brinkerhoff, Gallagher's director of human resources.

In late February 2003, plaintiff visited Gallagher's home office in Illinois and met with Brinkerhoff and eight other Gallagher personnel. Plaintiff did not discuss her belief that she was being subjected to discriminatory conduct at any time during these meetings because she feared reprisals and because Jay Woods had earlier told her never to report anything to Brinkerhoff regarding Hoey or John Woods.

On March 3, 2003, plaintiff provided a three-page single-spaced memorandum to Jay Woods containing numerous complaints about John Woods and Hoey. Jay Woods forwarded a copy to Brinkerhoff. In this memorandum, plaintiff stated that her conflict with John Woods resulted directly from her difficulties with Hoey. Nowhere in the memo did plaintiff mention her religion or indicate her belief that Hoey's or Woods's behavior was based upon her religion. Brinkerhoff called plaintiff regarding this memorandum and plaintiff complained about mistreatment, but did not mention religious discrimination or harassment. Plaintiff also contacted Linda Platzer, the recruiter who placed her at the Company, at least eight times during her term of employment to complain that she felt like she was being set up to be fired, but she never complained to Platzer that she was being discriminated against because she was Jewish.

On April 22, 2003, Jay Woods and Maddy met with plaintiff to discuss her six-month performance evaluation. During the meeting, Woods expressed concern about plaintiff's ability to act in a senior management role due to her lack of "dedicated effort" to get along with his father, and the potential difficulty she would have getting along with the senior management of any future merger candidates. Woods also felt plaintiff's inability to get along with his father and Hoey was proving a costly expenditure of his time. He was also critical of plaintiff's interaction with other Company employees.

Plaintiff left the meeting and attempted to call Brinkerhoff but was unable to reach her. Outside the meeting room, she claimed Maddy confirmed that the negative review items were merely excuses to fire her. When plaintiff re-entered the meeting, Woods told her that if she had not written the March 3 memorandum, he would have simply "told [her] there [was] a chemistry problem between [her] and [his] father and to find [he]rself another job." Plaintiff responded, "I know what this is all about," and Woods told her to "keep [her] mouth shut."

Plaintiff, Jay Woods, and Maddy met again on April 24, 2003, to discuss her review. Plaintiff expressed her belief that the April 22 meeting was a sham, that she was being fired, and that she intended to consult an attorney. Plaintiff reiterated her request for a severance package, something she initially raised as a possibility in her March memorandum. Plaintiff then gave her building pass and an update on all of her outstanding work to Woods and Maddy. At no point did Jay Woods or Maddy tell plaintiff that she was terminated.

The next day, April 25, 2003, plaintiff did not return to work. Maddy, Jay Woods, and plaintiff, however, did speak on the phone. Jay Woods told plaintiff that he wanted to finish her performance review. Plaintiff rejected this request and declined to have further any discussions without an attorney present.

Plaintiff did not return to work. Although she testified that she believed she was fired, and that Maddy confirmed to her that she was indeed being terminated, Maddy testified that she believed plaintiff had resigned. Plaintiff acknowledged that Woods never terminated her employment, but that she assumed he was firing her.

It was undisputed that Gallagher had adopted an anti-discrimination policy that required any complaints regarding discriminatory or harassing conduct to be reported to the head of human resources. Plaintiff acknowledged that she was aware of the policy and that reacting to any such complaint with the Company was part of her job responsibilities. It is undisputed that she never lodged any complaint with anyone at either company in which she claimed that the conditions in the workplace were as a result of her being Jewish.

Plaintiff also disputed the authenticity of John Wood's February 6, 2003, memorandum in which he criticized plaintiff's performance. Plaintiff employed a forensic computer expert who opined that the memo was in fact not produced on that date. In his testimony, Jay Woods explained that he wanted to make sure he had a clean copy of the memorandum because he had handwritten notes on the original. However, his secretary could not locate the memorandum on the computer system, so he asked her to retype it verbatim from his copy without his notations on April 25, 2003.

The deposition testimony from other employees at the Company indicates that contrary to allegations made by John Woods in his memorandum, they generally had no complaints regarding plaintiff's work. However, these employees also revealed that they had difficulties dealing with Hoey. John DiBlanda, the CFO of the Company, who is not Jewish, testified that he did not have a good relationship with Hoey and, as a result, felt he received a performance review that decreased his bonus. Jane Cameron, the non-Jewish former secretary to plaintiff and Hoey, testified that Hoey was rude to everybody regardless of religion.

Defendants moved for summary judgment and the motion was argued before Judge Richard J. Donohue on June 23, 2006. In a comprehensive written opinion dated July 10, 2006, Judge Donohue set forth plaintiff's factual assertions as we have above. He concluded that with respect to plaintiff's hostile work environment claim, plaintiff was "not subject to the 'extreme' conduct necessary to create an actionable hostile work environment." He noted that plaintiff admitted that "despite John Woods'[s] refusal to work or interact with her, she was able to do her job and get her work done."

In considering plaintiff's disparate treatment claim, Judge Donohue concluded that her "proofs . . . did not rise to the level of a prima facie showing . . . because plaintiff failed to establish a discriminatory motive." He noted plaintiff's inability to attribute any direct anti-Semitic remark or behavior to Hoey, John Woods, or Jay Woods, plaintiff's failure to ever complain to anyone in the Company or Gallagher about her suspicions, and plaintiff's admission that Hoey and Woods were rude toward other non-Jewish employees.

Judge Donohue also found that plaintiff had not been constructively discharged from employment with the Company. The judge first observed that plaintiff was never terminated by Jay Woods, but, rather tendered her building pass and refused to come back to continue her review. He noted, "The standard for constructive discharge 'requires more egregious conduct than that sufficient for a hostile work environment claim,'" citing Shepherd v. Hunterdon Development Ctr., 174 N.J. 1, 28 (2002). Since plaintiff failed to establish a hostile workplace claim, she had also failed to establish a claim for retaliatory discharge.

The judge determined that plaintiff's claim of retaliation under the LAD also must fail because in her March 3, 2003, memorandum, plaintiff made "complaints about unfair treatment in general," and had not "complain[ed] about discriminatory conduct." Lastly, Judge Donohue concluded that since plaintiff failed to establish a violation under the LAD, her claim that John and Jay Woods aided and abetted the Company in its discriminatory conduct must also fail. He dismissed plaintiff's complaint and this appeal ensued.

Before us, plaintiff contends that material facts were in dispute, particularly whether the conduct of Hoey and John Woods was motivated by discriminatory animus, and whether her attempts to address the hostile work environment through her memo to Jay Woods led to the Company's retaliatory conduct and her ultimate constructive discharge. We have considered these arguments in light of the motion record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Donohue. We add these comments.

Plaintiff's assertion that the trial judge resolved these important disputed material facts in favor of the defendants is misplaced. Rather, plaintiff's proofs, even when viewed through the appropriate summary judgment prism, failed to establish a prima facie claim of discrimination under the LAD.

To prevail on a hostile work environment claim, a plaintiff must show: "the complained-of conduct (1) would not have occurred but for the employee's gender, religion, race, or ethnicity; . . . (2) was severe or pervasive enough to make (3) a reasonable [plaintiff] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603 (1993); see also, Cutler v. Dorn, 390 N.J. Super. 238, 250-51 (App. Div.) (applying the Lehmann standard to hostile work environment claims based on religion), certif. granted, 192 N.J. 595 (2007). Here, plaintiff's proofs as to both the first and second prongs were legally insufficient.

The first prong of the Lehmann analysis, whether the protected characteristic was the cause of the harassment, is the "defining element" of a hostile work environment claim. Herman v. Coastal Corp., 348 N.J. Super. 1, 20 (App. Div.), certif. denied, 173 N.J. 363 (2002). When the alleged harassing conduct itself is not directed to the plaintiff's race, gender, or in this case, religion, then "[a]ll that is required is a showing that it is more likely than not that the harassment occurred because of the plaintiff's [religion]." Lehmann, supra, 132 N.J. at 605. In this case, plaintiff could have met this burden by demonstrating that she was singled out for Hoey's and Woods's rude and disparaging treatment, but employees who were not Jewish were spared. Such proof would have created the inference that the hostility was based upon her religion. Ibid.

However, the record reveals just the opposite. Hoey and John Woods were known throughout the company as generally nasty and rude. Other employees who were not Jews had felt their wrath. Plaintiff's proof as to the "but-for" connection between her religion and the allegedly hostile environment was one conversation she had with Hoey in which she acknowledged she was Jewish, and a change in how she was treated shortly thereafter. However, this inference cannot withstand the undisputed fact that plaintiff could not establish that anyone, except Hoey, knew she was Jewish. Plaintiff, in her numerous meetings with Brinkerhoff, Maddy, and others, and in her March 3, 2003, memorandum, never mentioned that she was Jewish, much less that she was being subjected to religious discrimination. In short, she never made any contemporaneous complaint that linked the manifestation of the Company's allegedly discriminatory conduct to her religion.

Nor did plaintiff's proofs establish that the conditions of employment had become "sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment." Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999). "An employment discrimination law such as the LAD is not intended to be 'a general civility code' for conduct in the workplace." Ibid. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283-84, 141 L.Ed. 2d 662, 677 (1998)). Here, plaintiff acknowledged that despite the cold shoulder she received from Hoey and John Woods, she was still able to perform her duties on a daily basis.

Additionally, plaintiff's failure to adhere to Gallagher's anti-discrimination policy also undercuts her hostile work environment claim. Plaintiff was not only required to report any discriminatory acts but was also charged with the duty to enforce that policy. Defendants are entitled to assert the existence of an effective policy as an affirmative defense to liability for harassment. Gaines v. Bellino, 173 N.J. 301, 320 (2002). In short, for a myriad of reasons, plaintiff failed to establish a claim for a discriminatory hostile work environment based upon her religion.

Plaintiff likewise failed to establish a prima facie case of disparate treatment based upon her religion. To prevail on such a claim, a plaintiff must show 1) she belongs to a protected class; 2) she was performing her job at a level that met her employer's legitimate expectations; 3) she suffered an adverse employment action; and 4) others not within the protected class did not suffer similar employment actions. Maher v. New Jersey Transit, 125 N.J. 455, 480-81 (1991).

Plaintiff's claims of disparate treatment relate to the manner in which Hoey and John Woods treated her after January 7, 2003, her critical evaluation in April, and her alleged termination immediately thereafter. For reasons already expressed, plaintiff's complaint about how she was treated by Hoey and Woods would be insufficient to establish she suffered an adverse employment action. We have also held "that an unfavorable evaluation, unaccompanied by a demotion or similar action, is insufficient." El-Sioufi v. St. Peter's University Hosp., 382 N.J. Super. 145, 170 (App. Div. 2005). Therefore, plaintiff's claim rests upon her alleged termination from the company.

However, plaintiff's own testimony was that she was not terminated but, rather she assumed she was going to be fired. She contends that she was constructively discharged. Constructive discharge occurs only when an "employer knowingly permits[s] conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." Meunch v. Twp. of Haddon, 255 N.J. Super. 288, 302 (App. Div. 1992). It requires a showing "more egregious [ ] than that sufficient for a hostile work environment claim." Shepard v. Hunterdon Development Ctr., 174 N.J. 1, 28 (2002). The employer's conduct must be "outrageous, coercive[,] and unconscionable." Ibid. In determining whether a constructive discharge occurred, we consider the nature of the harassment, whether the employee resorted to internal grievance procedures, the responsiveness of the employer to any grievances made, and all other relevant circumstances. Ibid.; Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 276 (App. Div. 1996). Plaintiff's proofs were clearly insufficient to demonstrate a constructive discharge.

Plaintiff's LAD retaliation claim was also unavailing because the complaints to Jay Woods in her March 3, 2003, memorandum, and those to Maddy and Brinkerhoff, never intimated she was Jewish or associated the negative treatment she was allegedly receiving with her religion. Under the LAD, it is unlawful "[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden [by the LAD] or because that person has filed a complaint, testified or assisted in any proceedings [under the LAD] . . . ." N.J.S.A. 10:5-12(d). To establish a prima facie case of retaliation, plaintiff must show that 1) she engaged in a protected activity known to defendant; 2) she was thereafter subject to an adverse employment decision; and 3) there was a causal link between the two. El-Sioufi, supra, 382 N.J. Super. at 175. Engaging in the protected activity known to the retaliator is the central element of the claim. Young v. Hobart West Group, 385 N.J. Super. 448, 465-66 (App. Div. 2005). Protected activity can include a plaintiff's complaints concerning allegations of discrimination against herself or others; however, complaints about unfair treatment do not suffice. Barber v. CSX Distribution Servs., 68 F.3d 694, 701-02 (3d Cir. 1995).

Plaintiff failed to establish that she engaged in a protected activity because she never complained about religious discrimination to anybody at the Company or Gallagher. The complaints about her tense relationship with Hoey and John Woods were not protected activity. As a result, her claim of discriminatory retaliation under the LAD was properly dismissed.

In light of the above, plaintiff's claim that John and Jay Woods aided and abetted the Company or Gallagher in violating the LAD must also fail.


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