April 11, 2008
THERESA POLICANO, PLAINTIFF-APPELLANT,
VALLEY NATIONAL BANK AND GERALD LIPKIN, INDIVIDUALLY AND AS PRESIDENT OF VALLEY NATIONAL BANK, DEFENDANTS-RESPONDENTS.
PROFORMANCE INSURANCE CO., PLAINTIFF,
THERESA POLICANO, VALLEY NATIONAL BANK AND GERALD LIPKIN, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-2659-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 24, 2008
Before Judges Wefing, Parker, and R. B. Coleman.
Plaintiff appeals from a trial court order granting defendant's motion to dismiss her complaint under Rule 4:37-2(b). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff was employed by Valley National Bank as manager of the Colonial branch in Kearney. She was terminated in December 2003 and filed this lawsuit, alleging religious discrimination in violation of New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. Shortly before trial, she amended her complaint to assert as well that her termination was retaliatory, violating N.J.S.A. 10:5-12(d), prohibiting any person from taking reprisal against an individual because that person has opposed any violation of the LAD.
In early November 2003 plaintiff was summoned, with several other branch managers, to a meeting with John Montesano, the regional manager. Mr. Montesano informed the managers in attendance that the bank would be expanding its program of Sunday banking and that the Colonial branch would be among those to be open on Sundays. The first Sunday opening was to be November 30, 2003.
Plaintiff was very upset at hearing this news and raised a number of operational concerns relating to items such as staffing, security codes, and compensation. She testified that she stressed that she was Catholic and that working on Sunday would pose a religious dilemma for her. She noted that most of her staff were Christian and that this policy would pose significant problems for them as well. Mr. Montesano testified that the concerns plaintiff expressed related to operational issues, not religious issues. We do not consider the difference in their respective testimony to be material to the issues on appeal.
Plaintiff voiced her concerns in such a loud and disruptive manner, however, that Mr. Montesano was unable to finish the meeting. Mr. Montesano testified that he was not surprised at her reaction; he said it was "typical of Terry's reaction to things that she would go through this period of ranting and raving and rebelling against a new concept, a new initiative . . . ." He admitted that, historically, after she had vented in this manner, she would implement the new program or proposal which she had opposed so vigorously at the outset.
Plaintiff returned to her branch and informed her staff of this proposal. A number of employees at the Colonial branch were upset at hearing the news that the branch would be open on Sunday. Some were upset for religious reasons, some for personal reasons, particularly in light of the fact that they were already working six days a week. Plaintiff did not tell the employees that the bank was planning on hiring additional staff to reduce the burden. She also did not tell them that those who worked on Sunday would be paid overtime. Plaintiff knew that the bank's policy was to accommodate the religious beliefs of its employees. She was aware, for instance, that one branch manager was an observant Jew and was permitted not to work on Saturdays. Plaintiff did not remind those employees at the Colonial branch who were upset at the prospect of Sunday banking of this policy of accommodation.
Plaintiff called the Human Resources department and said that her staff was upset at the proposed Sunday opening. She was advised to tell those employees who were upset that they should put their concerns in writing and forward them to the bank's Human Resources department. At least six of the employees at the Colonial branch did so.
The record presented at trial demonstrated that plaintiff had a long history of expressing her views in a strident manner. Her performance review for the year 2000 noted that she needed improvement in the areas of verbal expression and remaining calm. The performance review had space in which to outline areas in which an employee needed improvement. Hers was completed in the following manner:
Reduce customer complaints, especially those that comment on her attitude. Develop a "can do" attitude rather than "this won't work in my office" when dealing with Regional, Divisional or Bankwide initiatives.
Her attitude and demeanor resulted in her once being placed on probation although a subsequent performance review did note improvement in the criticized areas and a decrease in customer complaints. The record also indicates that her attitude had hindered her advancement to the position of vice-president, a fact which rankled her and spurred repeated complaints on her part. There was testimony at trial that her superiors had on several occasions recommended her termination because of these problems, but the bank president had, until the events of November and December 2003, always overridden that recommendation.
Plaintiff was directed to submit the names of two individuals from her branch who would work on Sunday. She made no effort to find out if employees at any other nearby branches would be available to work on Sunday. Despite her expressed objections to the policy of opening on Sunday, she included her own name on that list. On the day before Thanksgiving, she was summoned to a meeting at bank headquarters. There she met with Barbara Mohrbutter, her divisional manager, and a representative from Human Resources. Ms. Mohrbutter was not pleased that plaintiff, after expressing so many objections to the Sunday opening, had put herself on the schedule to work on November 30. She told plaintiff that she was not to work that day and was to give the keys to the branch to Mr. Montesano, who would attend to the opening.
Plaintiff drove back to her office. Distressed at what had happened, she called the bank president, Gerald Lipkin. She testified that he expressed anger that she had not come to him directly with her concerns but had the Colonial branch employees write to Human Resources. He told her that she was not to work on Sunday and that if she did, she would be fired. Mr. Lipkin testified to a somewhat different version of the conversation but again, we do not deem the differences material.
Approximately one and one-half weeks later, on December 8, 2003, plaintiff was again summoned to bank headquarters. She again met with Ms. Mohrbutter. During the course of this meeting, she was terminated.
Following her termination, plaintiff instituted this litigation, naming the bank and its president as defendants.
She asserted claims of religious discrimination and retaliation. After she rested at trial, defendants moved to dismiss both claims and the trial court granted their motion. On appeal, plaintiff does not challenge that part of the trial court's order that dismissed her claim of religious discrimination but does contend that the trial court erred when it dismissed her claim of retaliation.
Under N.J.S.A. 10:5-12(d), it is an unlawful employment practice [f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.
A party asserting a claim of retaliation under N.J.S.A. 10:12-5(d) must establish four elements to set forth a prima facie claim. These four elements are that the employee engaged in a protected activity, that the employer knew of that protected activity, that the employee suffered an adverse employment decision, and the existence of a causal link between the protected activity and the adverse employment decision. Young v. Hobart West Group, 385 N.J. Super. 448, 465 (App. Div. 2005). A person engages in a protected activity for purposes of N.J.S.A. 10:12-5(d) "when that person opposes any practice rendered unlawful under the LAD." Id. at 466.
Here, the trial court granted defendants' motion on plaintiff's retaliation claim, concluding that there was no testimony that plaintiff ever engaged in a protected activity under the LAD. In our judgment, plaintiff's contention that the trial court erred in this regard is misdirected. While plaintiff was upset at the announcement that her branch had been selected to be open on Sundays, and voiced that upset, she did not oppose a practice that was unlawful under the LAD. The bank had a right to make a business decision to remain open on Sundays. Plaintiff was not directed to work on Sunday in violation of her religious principles, and she was not directed to have any employee of that branch work on Sunday in violation of that employee's religious principles.
Plaintiff stresses that a claim for retaliation is separable from a claim for discrimination and can survive even if the discrimination claim has been dismissed. She points to Drinkwater v. Union Carbide Corp., 904 F.2d 853 (3d Cir. 1990), in which the Court of Appeals did recognize the severability of these two claims. Id. at 865. In doing so, however, the Drinkwater court stressed that a plaintiff must still establish a reasonable belief that she was being discriminated against. Ibid.
Our New Jersey Supreme Court has expressly adopted this requirement. Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 359 (2007) ("We hold that, in a case alleging retaliation under the LAD, the plaintiff bears the burden of proving that his or her original complaint was made reasonably and in good faith.") From our review of the record, we consider it clear that plaintiff did not have a reasonable basis to assert a claim of religious discrimination, and thus she failed to establish a prima facie case of retaliation.
Because we are satisfied that the trial court correctly granted defendants' motion to dismiss, it is unnecessary to address plaintiff's contention that the trial court erred when it would not grant her request to conduct a Rule 104 hearing for a proposed witness who would testify on the question of damages.
© 1992-2008 VersusLaw Inc.