On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-2732-03 and L-3422-04.
The opinion of the court was delivered by: C.L. Miniman, J.A.D.
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 17, 2007
Before Judges A.A. Rodríguez, Collester and C.L. Miniman.
Plaintiffs Sopharie Leang and her husband Song Leang appeal from a summary judgment dismissing all of their claims against defendants Jersey City Board of Education (the Board), Vladimir Ashworth, Charles T. Epps, Jr., Angela Bruno, Jersey City Medical Center (JCMC) and Jersey City Medical Center Mobile Crisis Unit (MCU).*fn1 We reverse in part and affirm in part.
On May 20, 2003, plaintiffs filed a complaint and asserted the following claims against the Board, Ashworth, Epps and Bruno (collectively, the school defendants):*fn2 false imprisonment; battery; assault; invasion of privacy; defamation, slander and libel; sexual harassment by Ashworth; breach of employment contract; due process violations; wrongful discharge; and intentional infliction of emotional distress. Song also asserted a per quod claim. On June 27, 2003, an answer to plaintiffs' complaint was filed by the school defendants, which generally denied the allegations and cross-claimed for contribution.
On June 23, 2004, plaintiffs filed a separate complaint against the JCMC and the MCU (collectively, the medical defendants), as well as the Jersey City Police Department (Jersey City PD), the City of Jersey City (the City), and their various John and Jane Doe employees (collectively, the City defendants). This complaint alleged the use of excessive force and abuse of governmental authority, a per quod claim by Song, false arrest, malicious prosecution and intentional infliction of emotional distress. On October 5, 2004, the medical defendants filed a joint answer that generally denied the allegations and sought indemnification from their co-defendants or plaintiffs. On August 12, 2004, the City and the Jersey City PD filed a joint answer in which they generally denied the allegations in the complaint and sought contribution and indemnification. On November 5, 2004, a motion judge ordered that the cases be consolidated.
On September 29, 2005, the medical defendants filed a motion for summary judgment and on October 5, 2005, the school defendants filed a separate motion for summary judgment. The City defendants did not file any motions or responses. Argument was held on those motions on November 7, 2005, and the motions were granted. Because we are reviewing a summary judgment, we must, as we do here, assume that the facts asserted by plaintiffs are true and draw all reasonable inferences in their favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiffs were born in Cambodia, where Sopharie began her university studies. In 1970 she left Cambodia to join Song in Paris. She returned to Cambodia to see her family in 1973 and then rejoined Song in Vienna, where he worked for the United Nations in the Industrial Development Organization. She earned a bachelor's degree in French at the University of Vienna. Because Song was transferred to New York by the United Nations, plaintiffs both moved to New York in 1979. Sopharie became a United States citizen and enrolled in the City University of New York (CUNY) in 1998 as a doctoral candidate in French. While enrolled there, she earned a master's degree in urban education, concentrating in English as a second language (ESL) from the New Jersey City University (NJCU) in 2000. She continued to study as a doctoral candidate in French at CUNY through 2002 but did not complete her thesis.
Sopharie taught ESL in the New York City public schools between 1982 and 2001. English is Sopharie's fifth language after Cambodian, French, German and Spanish, although it is clear from her deposition transcript that she is not entirely fluent in English. After working in the New York City public school system for nineteen years, Sopharie was hired as a "provisional teacher" by the Jersey City Public Schools for the 2001-02 school year and was assigned to Public School 11 (PS 11). Ashworth was also a teacher of ESL at PS 11 and Bruno was the principal of that school. Epps was the State District Superintendent of Education.
Sopharie received six evaluations during the school year, one each in November 2001, February, March and May 2002 and two the following month. In her November 26, 2001, formative observation by Bruno, Sopharie's overall ratings showed "satisfactory" in three "domain" areas, "Planning and Preparation," "Instruction" and "The Classroom Environment," and "unsatisfactory" in one, "Students and Learning." Nevertheless, on December 13, 2001, Bruno recommended to the Associate Superintendent that Sopharie's employment be terminated despite the generally satisfactory ratings Bruno gave her.
Sopharie then received a Provisional Teacher Program formative evaluation from Bruno on February 19, 2002, in which she received sixteen satisfactory ratings, nine needs-improvement ratings and one unsatisfactory rating. This evaluation was not based on any classroom observations subsequent to the November 12, 2001, evaluation. It is not clear from the record on what it was based. It was required to be completed at the end of the tenth week of school yet it was not provided to Sopharie until five and a half months after the beginning of school.
Sopharie's March 27, 2002, formative evaluation done by Maria C. Bustillo contained ratings that were "satisfactory" in one area, "The Classroom Environment," "needs improvement" in two, "Students and Learning" and "Instruction," and "unsatisfactory" in one, "Planning and Preparation." This evaluation was based on classroom observation.
On May 9, 2002, Sopharie received a summative evaluation from Bruno that was "satisfactory" in one area, "needs improvement" in one area, and "unsatisfactory" in two areas. Flavio Rubano, Principal Assigned/Human Resources, in a letter dated May 14, 2002, notified Sopharie that her contract would not be renewed for the 2002-03 school year.
On June 11, 2002, Bruno gave Sopharie her mandatory twentieth-week Provisional Teacher Program Formative Evaluation. She received thirteen satisfactory ratings, ten needs-improvement ratings and three unsatisfactory ratings. Bruno admitted that this evaluation was required to be given after the twentieth week of school, not the thirty-fifth. Thus, it should have been given around January 2002.
Bruno then gave Sopharie a Provisional Teacher Program Summative Evaluation one week later on June 18, 2002. This evaluation was required to be given after thirty weeks of full-time teaching, which would have been around April of 2002. This evaluation also was not based on any classroom observations.
Sopharie testified that she never received any mentoring, although she should have been assigned a mentor, and asked Bruno about it every month.*fn3 Indeed, the mentoring program was to begin one month after the date of hire and required a support team consisting of at least the principal and the mentor. The mentor was to make five forty-minute contacts biweekly for the first ten weeks of teaching. Thereafter, the mentor was to have four forty-minute contacts every five weeks during the remaining twenty weeks of the program. The mentor was required to complete a "Visitation Form" following each contact.*fn4
Sopharie also testified that she was never given the textbooks she was required to use in teaching ESL until the end of March 2002, despite Bruno's direction to Ashworth to provide them to her.*fn5 She claims that by refusing to give her the textbooks, Ashworth sabotaged her performance. She also claims that PS 11's failure to provide her with the ESL curriculum negatively impacted on her performance.*fn6 After receiving the June 18, 2002, evaluation, Sopharie set up a meeting with Rubano and brought plaintiffs' long-time family friend, educator and New York attorney, Ellore Karl, Ph. D., to this meeting. He and Sopharie questioned the evaluations, asked why the twenty-week evaluation was not given until the thirty-fifth week of school, and inquired about the absence of mentoring and support.*fn7
Not only was Sopharie having difficulty obtaining mentoring and support, she was also being harassed by Ashworth. Sopharie testified that Ashworth would ask her out and "prais[e] her beauty," and was "always oriented to . . . sexual advance." Sopharie wanted "nothing connected to him." At the Christmas party, Ashworth asked Sopharie to sit on his lap. When she refused, he told her that she was "so stubborn like a mule." Ashworth told Sopharie he was bisexual. She told him, "well, that is your problem, your business, I do not want to hear that." Whenever Ashworth made sexual advances, Sopharie would tell him "next life, or, talk business only, talk professional only."
Sopharie complained about Ashworth's behavior to three other teachers who were senior to her and they told her to ignore him. Karl testified that Sopharie mentioned several times that Ashworth "was pestering her." Karl advised her on how best to deflect his advances. As time passed and Sopharie continued to complain about Ashworth's sexually harassing conduct, Karl urged her to complain to the principal. Karl also testified that Sopharie was very fearful of doing that because she perceived that Ashworth and Bruno were very closely allied and Sopharie might lose her position if she complained. Sopharie testified that she "didn't dare" complain to Bruno because Ashworth was "so close to Ms. Bruno."
Sopharie characterized Ashworth as a "[s]upervisor-slash-teacher" who was "so powerful." His position "informally" was below the vice principal, which "mean [sic] that any order that [she was] suppose[d] to do from Ms. Bruno [she] receive[d] from him" and that "it seemed that whatever he say become the law." Ashworth had the key to the materials closet, and Sopharie had difficulty obtaining the books and materials from him that she needed for her work.
Sopharie described an encounter with Ashworth in the hallway on June 10, 2002. She testified that Ashworth asked her if she had changed her decision to go out with him. She then responded as follows:
I said, no, no. And then he said, okay, lady, suit yourself, you will regret forever, I will do something that make you regret your decision for life, it will scar your brain for life. At that time I was so frustrated and annoyed by him, so I said, be my guest, go for it[.]
Sopharie said that two days before the last day of school, Ashworth told her, "I will make you dance and I will drum the music . . . I will beat the drum for you to dance. I said, yeah."
On the last day of school, June 24, 2002, at 8:45 a.m., Ashworth came into the classroom Sopharie shared with Liliana Ortiz. Ortiz and her assistant, Olga Rivera, were in the room, along with the twenty-two students in the class. Sopharie was counting books. Ashworth chatted with Ortiz for approximately thirty-five minutes. Sopharie then described what happened when Ashworth asked her why she had "no voice":
I said, I have laryngitis. . . . And then he said to me, why do you have laryngitis. I said, I don't know, maybe air-condition, maybe stress. Oh, you have stress. Yes, I have stress. I said, well, everyone has stress in a working place. He said, yeah, but you have no voice for a long time. I said, just a few days. And then he said to me . . . why do you have stress. And I said, well, everyone has stress. No, no, not like you. I said, then maybe I take a lot of courses that I have to prepare the final paper, the exam. And he said, oh, you have stress; did you go to the doctor. I said, yes. What did the doctor say. I said, can I finish this work, I cannot finish this work keep talking to you. I said, I count this book, like seven time, I keep counting again and again and again because by talking to you I count this one more time.
And then Vladimir said to me . . . what did the doctor say. I said, the doctor said I should rest, I had a lot of stress because of my work at JCU -- Jersey City University. And then Vladimir, how much stress, how much stress, huh, huh. I said, yeah, do you know for sure that my doctor said the . . . amount of stress in my body could have killed some people. . . .
And then he said, oh, now you want to kill all of us in this room, you kill this one --this four times -- look, let me count, one up to ten -- wow, 22 people, you want to kill 20 people and plus me and Lillian and the other lady altogether [sic], 22, you say you want to kill all of us. I said, what, what. Then I start to be . . . Surprised. I start to -- like a shock that he can twist and distort the subject. I said, Vladimir, . . . stop, stop, stop, stop, do not put your word into my mouth. Oh, you have no sense of humor, you have no sense of humor, dear, this is your last day in the school, we cannot joke with you any more, no. No, no, no, no, I don't know what your intention, I want to correct you that -- I said and repeat five times . . . I said, the amount of stress, not the person, the amount of stress in my body the doctor said could have -- could have killed some people. You have no sense of humor, dear, you are not funny anymore today. I said, do not distort my word, okay, repeat after me, I said, the amount of stress is the subject. Oh, yeah, yeah, yeah, I know that; my God, you kill with what way, a gun, you kill with bomb. I said, what. I said, I told you that the amount of stress the doctor said that could have killed some people. He said, you see that, you see that, she said that she want to kill each one of you -- each one of us. And then everyone laugh. The student laugh, shout out, Mrs. Leang cannot kill student, Mrs. Leang could not even kill the fly, she was so nice, how could she kill each one of us, she only help us.
And then everyone laugh because -- say that Vladimir joke, Vladimir make humor, Vladimir make like a joking time.
And I said, okay, okay, I correct, did you hear me, did I clarify it. Vladimir said, go, lady, go, go, go to take the book to Debbie because you have no sense of humor, I cannot joke with you anymore, you are not funny anymore. [(Emphasis added).]
Sopharie then returned the books with two students.
By 9:25 a.m. the school nurse, Iris Bonilla, told Sopharie that Bruno wanted to see her and that she had to wait for Bruno in the nurse's office. Bonilla told Sopharie that Bruno had "second thought[s] of rehiring [Sopharie] for the next year." Sopharie testified that she remained in the nurse's office because she thought, "[I]f I dare to disobey I just have no opportunity to rehire, if I stay here I will be rehired." Bonilla told Sopharie that Bruno would come when the graduation ceremony was finished at 12:15 p.m.
When Sopharie wanted to leave the office to go buy something to eat, Bonilla said, "No, no, no, no, you wait, okay, then I will call Ms. Bruno and then she will come soon and then tell you whether you are rehired or not and then she will come and then you can go to eat." Sopharie asked if a student could get her something to eat, but Bonilla said, "[Y]ou seem not to understand English and you are English teacher . . . I cannot understand how you could get certification if you do not know my language." Sopharie told Bonilla that she felt nauseous from not eating and from the cold room, but Bonilla told her to "just sit still." And so Sopharie remained because her experience at the school had taught her not to ask questions and "how to be obedient in [her] school." The nurse's assistant sat there watching Sopharie the entire time.
Bruno arrived at about 12:05 p.m. Sopharie said she "ran from [her] chair" to thank Bruno for reconsidering her case. Bruno told Sopharie that she had to wait for a final decision from the Central Office on whether or not Bruno could rehire her. Bruno asked Sopharie what was wrong with her, why she had no voice, and whether she wanted to talk. Sopharie testified that Bruno told her that "some people" said she had a "bad intention." Bruno testified that she had a duty to report what Ashworth related and admitted that she did not allow Sopharie to go home.
Sopharie was "shocked" and asked Bruno to speak to Karl. Sopharie called Karl and asked him to "describe. . . [her] character to [her] principal." Karl confirmed that he received this call. Sopharie told him that "she was being accused of wanting to kill 22 people in the school" and asked him to speak to Bruno. Karl observed that Sopharie sounded "as if she were under extreme stress." Bruno spoke to Karl and repeated the claim. Karl told Bruno that the claim "was preposterous," that Sopharie "was a Buddhist and would recoil from the idea of killing a cockroach," and urged her to investigate thoroughly. Bruno's only response was to repeat the accusations and the call ended. By that time a Board social worker named Denise arrived.*fn8
Sopharie heard Denise ask Bruno if she should "tie" Sopharie's hands, and Bruno replied, "no need, she is docile." Denise told Sopharie to "calm down" and Sopharie asked her to explain what was happening. Denise told Sopharie that Bruno said she would "attempt to kill 22 people" and that "people saw that you have [a] weapon inside your bag."
Sopharie "was so shocked" that she "stood up." She told Denise that it was "some kind of bad joke" and that she was a "very religious Buddhist" who could not imagine doing something like that. Denise repeatedly insisted that Sopharie "admit" that she wanted to kill twenty-two people. Denise turned to Bruno and asked if she should "use force" because Sopharie did not want to admit anything. Bruno was afraid Sopharie would "run" before "the force" arrived, but when Denise told Bruno that "the force is in front of the school," then Bruno agreed. Denise then used a walkie-talkie to radio the Jersey City Police Department Emergency Services Unit (Jersey City ESU) in front of PS 11, which immediately came to the nurse's office. Among them was Victor Cook, a police officer assigned to the Jersey City ESU. Cook testified that the Jersey City ESU had a rescue truck and could not do transports. Cook and his partner, Michael McCormack, responded to PS 11 at 12:47 p.m.
Sopharie repeatedly asked Bruno to tell her who said that she threatened to kill twenty-two people but Bruno said, "[Y]ou do not need to know the person." When the police asked about the source of the charge against Sopharie, she heard the Assistant Principal, Mrs. Diane Pistilli, tell them that Ashworth "ran to talk to Ms. Bruno saying that I have the gun and the bomb to kill 22 people." Sopharie heard the police ask Ashworth, "Sir, . . . did you blow the horn to the principal that this young lady tried to kill people?" but Ashworth never responded. When the police questioned why Bruno believed Ashworth's claim against Sopharie, Bruno told the police that Ashworth had never lied to her and she would "take full responsibility" for Sopharie's removal.
Sopharie refused to speak with the police except to ask them to speak to Karl on the telephone, which they agreed to do. Karl testified that he received a second call one-half hour after the first call and Sopharie asked him to talk to a man she called "Officer." Karl identified himself to the man as Sopharie's "New York attorney." He heard the man say, "Miss Bruno . . . he's a New York attorney." Karl heard Bruno say, "Oh, no, don't listen to him" and the officer hung up. When the officer told Bruno that Karl said Sopharie was "innocent," Bruno told him to disregard Karl and "just remove her." Sopharie testified that the officers then "twisted" her hands behind her back. She saw the contents of her purse, including all her credit cards, strewn on the floor and, when she tried to retrieve them, the officers kicked her in her head and body for twelve minutes to prevent her from getting the items.*fn9 She was bleeding and developed seventy-two bruises. The police found no weapon in Sopharie's purse and never handcuffed her, but she said they "drag[ged]" her into the hallway "like [an] animal."*fn10
When Sopharie was being taken away through the hallway, there were fifty to seventy people watching and someone spit on her head.
Steven Nacim, an EMT, and his EMT partner, Lenin Portes, worked for the JCMC Emergency Unit. They received a 911 dispatch at 12:43 p.m. and arrived at PS 11 at 12:49 p.m. MCU, which does psychiatric evaluations, was already on the scene when Nacim and Portes arrived. Two police officers with the Jersey City ESU were also on the scene. Nacim said that Sopharie was "very uncooperative, irate," "very upset" and "moving around very frantic." Nacim did not see any sign of trauma. Nacim and Portes decided to take Sopharie to a hospital for evaluation. Cook and McCormack both testified that the Jersey City ESU had no input in this medical decision.
At Sopharie's request, she was taken in an ambulance at 1:03 p.m. by Nacim and Portes to Christ Hospital, rather than the JCMC, which was closer. Karl then got a third call from Sopharie who said that she was in an ambulance. She asked him to come to the hospital and speak to someone in the ambulance. Sopharie claimed that she was placed in a straight jacket, although Nacim denied having such equipment in the ambulance. Accompanied in the ambulance by a police officer from the Jersey City ESU, Sopharie was transported as a "priority two . . . urgent transport" with "[l]ights and sirens." They arrived at Christ Hospital at 1:08 p.m. Karl went to pick up Song and bring him to the hospital, but Song had already left his home to go there and so Karl went to the hospital to offer support to both plaintiffs.
Denise also went to the hospital and tried to get Sopharie to admit that she "tr[ied] to kill 22 people" and told her, "[I]f [she did] not say it peacefully . . . they [would] give [her] the medication that let [her answer] whatever they ask[ed her]." Denise continued to question Sopharie until the doctors told her not to ask any more questions because Sopharie's blood pressure was so high that she could have a heart attack.
Sopharie was released from Christ Hospital at 6 p.m. that night with blood pressure medication. However, she was discharged against medical advice because her examining psychiatrist wanted her to consent to a twenty-four-hour observational admission. Her Axis I diagnosis was "generalized anxiety, rule out homicidal ideation." The next day she went to see her family physician and he took pictures of her contusions.
Sopharie had never had psychiatric or psychological treatment in the past and had never committed a crime or been accused of committing a crime. She had never committed an act of violence or been accused of doing so. Sopharie said that she filed this lawsuit because now her name is "dirty" and her students "run away from [her]" when they see "[her] around town" because "[e]veryone thinks [she is] a real dangerous person."
Ashworth was deposed and disputed Sopharie's version of the events occurring on June 24, although he had no recollection of much of the conversation that morning as described by her. He testified that he was not aware on June 24 that Sopharie would not be rehired. Ashworth admitted that none of his previous interactions with Sopharie would lead him to believe she was violent. He also admitted that he had no reason to believe she was armed.
Sopharie submitted a notarized statement from Lisa Mungin dated June 26, 2002, which states:
Ms. Leang is not a violent person as I have known her this school year. She said that the amount of stress in her body was enough to have killed people. ...