July 25, 2008
MARIA GLAVAN, PLAINTIFF-APPELLANT,
CITY OF IRVINGTON, IRVINGTON CITY COUNCIL AND MAYOR WAYNE SMITH, DEFENDANTS-RESPONDENTS, AND ELVIS GOODEN, SARA B. BOST, EARL HAUGABROOK, JAMES GIBBS, AND ARLENE TYLER, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6270-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Axelrad, Payne and Messano.
Plaintiff Maria Glavan appeals from two orders, the first, filed August 25, 2006, 1) dismissed with prejudice her claims brought pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; 2) dismissed with prejudice her claims brought pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and 3) dismissed with prejudice her claims against defendants Township of Irvington (Irvington), Earl Haugabrook, Elvis Gooden, and Sara Bost.*fn1 The second order under review, dated October 3, 2006, but filed on November 3, 2006, once again dismissed plaintiff's complaint with prejudice as to Irvington and dismissed her complaint as to defendant Wayne Smith. We have considered the legal arguments plaintiff has raised in light of the record and applicable legal standards. We affirm the majority of the orders under review; however, since we cannot discern the motion judge's reason for dismissing plaintiff's contractual compensation claims, we reverse the orders solely as to defendant Irvington, and remand for further proceedings consistent with this opinion.
Our review is made more difficult because of the numerous violations of Rule 2:6-2(a)(4) contained in plaintiff's brief. Despite the Rule's requirements that the brief contain "[a] concise statement of the facts material to the issues on appeal supported by references to the appendix and transcript," plaintiff's brief frequently asserts facts without any reference whatsoever to documents in the record. Plaintiff's appendix violates Rule 2:6-1(a)(1) because it does not include "all items submitted to the [motion] court on the summary judgment motion," instead submitting briefs the parties filed with that court in direct violation of Rule 2:6-1(a)(2). We therefore have attempted to glean the material facts from the transcripts of the numerous motion hearings and from the allegations contained in plaintiff's multiple pleadings.
Plaintiff is a white female who was appointed municipal tax collector for Irvington effective March 20, 2000. The author of her appointment letter was defendant Gooden, then Director of Revenue and Finance and Chief Financial Officer for Irvington. Pursuant to N.J.S.A. 40A:9-142, plaintiff's term was for a period of four years, commencing the first day of the year following her appointment. Thus, her statutory term was to end December 31, 2004.
In her complaint, plaintiff alleged she was additionally assigned the duties of "supervisor of sewer user charges," a position routinely occupied by the tax collector, and she alleged that Gooden promised she would receive additional compensation for the position, but she did not. Plaintiff also alleged that defendant James Gibbs, the former tax collector, approached her in September 2000 to purchase tickets for the mayoral ball held for Bost, who was then mayor of Irvington. Although plaintiff objected, she eventually purchased tickets to the event from the defendant Arlene Taylor, the ball's chairperson. After she made the purchase, plaintiff contended that Haugabrook, then Irvington's Business Administrator, promised to discuss with Bost the additional compensation plaintiff was promised.
Plaintiff contended that she immediately experienced problems in the operation of the tax collector's office. It was understaffed and she claimed a lack of support from Haugabrook. In May 2001, Julie Gambert, Irvington's Payroll Supervisor and Keeper of Records, notified plaintiff that due to the municipality's budgetary constraints, there would be no payments for overtime without pre-approval. In August of 2001, Haugabrook notified plaintiff by letter that the Tax Office personnel would no longer receive compensatory time or overtime without his prior approval. In June of 2002, plaintiff was advised a third time that no compensatory time or overtime would be paid without prior approval from Haugabrook or from Tim Roberts, then Irvington's Chief Financial Officer.
In September 2001, plaintiff alleged that Gibbs again approached her regarding the purchase of an advertisement in the mayoral ball's journal. She refused, and plaintiff contended that the city's new business administrator, Mitchell Silver, advised her and others that no political activity was permitted within the tax collector's office, or by plaintiff. Plaintiff alleged that she thereafter was subjected to a pattern of criticism and harassing conduct by members of her staff and other municipal employees.
In her initial complaint, filed July 3, 2002, plaintiff named Irvington, Gooden, Bost, Haugabrook, Gibbs, Tyler, Irvington's City Council (the City Council), and other fictitious parties as defendants. She claimed defendants violated CEPA, the LAD, her constitutional rights, negligently and intentionally inflicted emotional distress upon her, and breached the implied covenant of good faith and fair dealing in her employment contract.
In early 2004, defendants moved for summary judgment seeking dismissal of the complaint. We have not been provided with the order that resulted, if indeed one was entered, and plaintiff has not appealed from it. We gather from the transcript of the proceedings that the motion judge dismissed with prejudice plaintiff's claims against Tyler and Gibbs finding they were not plaintiff's supervisors and therefore not legally liable. Furthermore, plaintiff acknowledged that she had failed to file any notice required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, and the judge granted defendants' motion for summary judgment on all other "common law tort claims." The judge reserved all remaining motions for summary judgment as to plaintiff's CEPA and LAD claims for future consideration.
Although it is not entirely clear from the record, at some point defendants apparently continued to file dispositive motions seeking dismissal of plaintiff's remaining claims and plaintiff moved for reconsideration and to file an amended complaint. On December 3, 2004, a second judge entered an order that: 1) permitted plaintiff to file an amended complaint; 2) dismissed plaintiff's common law tort claims and constitutional claims, based upon the rationale expressed by the first judge; 3) denied plaintiff's motion for reconsideration of that earlier ruling; 4) dismissed any claim plaintiff had for failure to receive additional compensation for her position as supervisor of sewer user charges, finding plaintiff had been compensated; 5) consolidated any miscellaneous factual allegations plaintiff had made into either her LAD claim or her CEPA claim; 6) dismissed plaintiff's complaint as to the City Council; 7) dismissed plaintiff's LAD claim against Gooden; and 8) reserved for further consideration defendants' other motions for summary judgment and plaintiff's cross-motion for summary judgment.
In March 2005, plaintiff filed an amended complaint that again named all the initial defendants and added Wayne Smith, who had replaced Bost as Irvington's mayor on July 1, 2002, as a defendant. The allegations in the amended complaint were identical to those in the initial complaint, except they also included events that had allegedly transpired toward the end of 2004.
In this regard, plaintiff alleged that when her term expired on December 31, 2004, Irvington hired a "young [b]lack African American female" to replace her. She alleged that defendants failed to re-hire her, and failed to pay her earned overtime and compensatory time, in retaliation for her earlier complaint. In the amended complaint, plaintiff restated her causes of action under CEPA, the LAD, the New Jersey Constitution, common law claims of "false light" invasion of privacy, infliction of emotional distress, and breach of the implied covenant of good faith and fair dealing in her employment contract. Plaintiff also added a claim that defendants had not paid her the "moneys she earned" in violation of N.J.S.A. 40A:9-165 (providing "[t]he governing body . . . shall fix and determine the salaries, wages or compensation to be paid to the officers and employees of the municipality"). For reasons unexplained in the record, plaintiff apparently moved again to amend her complaint and the judge issued a second order, dated March 22, 2005, permitting plaintiff to file another amended complaint.*fn2
The parties appeared before a third judge for argument on their summary judgment motions on August 2, 2006. Relying upon Casamasino v. City of Jersey City, 304 N.J. Super. 226, 241 (App. Div. 1997), rev'd on other grounds, 158 N.J. 333 (1999), the judge dismissed plaintiff's CEPA claims against all defendants except Smith. Turning to plaintiff's LAD claim, the judge recognized there were "factual issues concerning whether [plaintiff] was mistreated," citing an affidavit from Silver that despite budget problems in Irvington, other employees were paid overtime but plaintiff's supervisors failed to process the necessary paperwork to pay her. Nonetheless, the judge noted that plaintiff was required to produce some evidence that these differences in treatment were related to "reverse discrimination" based upon her race. Referencing plaintiff's deposition testimony, the judge found plaintiff was "just guessing" that defendants' conduct was occasioned by "something else other than [her] performance on the job."*fn3 Finding plaintiff failed to adduce any evidence "upon which a jury could do anything but speculate" about defendants' discriminatory motive, the judge dismissed plaintiff's LAD claim.
The judge refused, however, to dismiss plaintiff's claims against Smith and Irvington regarding the failure to rehire her in 2004 because those motions were not before him. On August 25, 2006, the judge entered an order dismissing with prejudice plaintiff's claims under CEPA "arising from her status as a [t]ax [c]ollector." The order further provided that plaintiff's LAD claims, "arising from her employment as [t]ax [c]ollector" were dismissed with prejudice. The order also dismissed with prejudice plaintiff's claims against Irvington, Haugabrook, Gooden, and Bost, "arising from her employment as [t]aX [c]ollector."
However, in the interim between oral argument and the issuance of the August 25, 2006, order, the litigation proceeded to trial before a fourth judge on August 7, 2006. When the parties could not agree on what causes of action were still extant, the judge declared a mistrial, and granted Smith and Irvington the opportunity to file summary judgment motions.*fn4
On November 3, 2006, counsel for Smith and Irvington appeared before the judge who had previously granted summary judgment in August. For reasons unexplained in the record, plaintiff's counsel waived his appearance at the argument. Counsel for Irvington framed the issues for consideration as follows: "[T]he only thing before this court is the issue of the CEPA, the LAD, common law [and] constitutional claims as [they] relate to  Smith based on the non-reappointment of [plaintiff] in 2004." In support of the motion, Smith certified that shortly after being sworn as mayor, he learned that plaintiff had not been paid for her additional service as supervisor of sewer charges and ordered that she immediately be compensated, and also discovered that she had not received a raise, as had other supervisors, so he ordered that a retroactive raise be awarded to plaintiff. Smith contested plaintiff's claim that she was entitled to overtime, arguing that she was "part of senior management," and not entitled to overtime.
With respect to his decision not to re-hire plaintiff as tax collector, Smith certified that he received numerous complaints from citizens and staff regarding plaintiff's supervision of the tax collector's office and her performance. He offered plaintiff the opportunity to compete with others for reappointment, and she was interviewed along with other qualified candidates; however, Smith certified that he ultimately appointed someone else who had fifteen years' experience in the tax office. He certified that plaintiff's race played no role in the selection process.
The appellate record contains a brief certification filed by plaintiff, apparently in opposition to defendants' motion. In that, plaintiff claimed that Irvington's business administrator, Faheem Ra'Oof, told her in 2004 that "he wished he could tell [her] she did something wrong, but he couldn't," and that "he felt bad about her losing her position and not being reappointed." Plaintiff claimed that Smith had usurped Ra'Oof's proper role as the appointing authority for the tax collector's position. Plaintiff also claimed that she had not received a check for her compensatory time after she left her position.
Defendants responded with Ra'Oof's certification in which he denied ever telling plaintiff she was the best qualified person for the position of tax collector or that she should be reappointed. He further claimed that Smith never mentioned plaintiff's age or race in any meeting he had with him, and noted that the racial makeup of Irvington and its governing body remained the same as when plaintiff was originally hired, i.e., all the elected officials were African-American as was the majority of the population. Ra'Oof noted that the mayor always had input into the appointment of the tax collector, including plaintiff's initial appointment.
After oral argument by defense counsel, the judge noted initially that plaintiff elected "not to proceed in any CEPA claims," therefore he granted that aspect of Smith's and Irvington's motions.*fn5 The judge then considered plaintiff's LAD claim regarding her termination, and concluded "plaintiff ha[d] not established a valid claim" under the statute. The judge dismissed any common law claims, finding that plaintiff had failed to serve any notice under the TCA, and dismissed any constitutional claims finding plaintiff had not "described any basis for these claims whatsoever." The judge entered an order dismissing plaintiff's claims against Smith and Irvington. This appeal ensued.
Plaintiff claims the motion judge's grant of summary judgment contained in both orders was error because 1) "material facts and credibility issues exist[ed]"; 2) she established a "prima facie case of reverse discrimination" as to Irvington's failure to re-hire her as tax collector; 3) defendants' proffered reasons for failing to hire her were "pretextual"; 4) the judge abused his discretion; 5) the judge denied her "due process and equal protection" under the State and Federal constitutions; 6) the grant of summary judgment was a "manifest denial of justice"; 7) the dismissal of plaintiff's CEPA claim did "not mandate dismissal of all of" her remaining claims because they arose out of facts that occurred when she was no longer an employee of Irvington; 8) her CEPA claim should not be dismissed under "the law of the case" doctrine; 9) she demonstrated "as a matter of law that she was subject to reverse discrimination"; 10) her common law tort claims should not have been dismissed for failure to comply with the notice provisions of the TCA; 11) she stated a cause of action for "false light invasion of privacy"; 12) she demonstrated a breach of the implied covenant of good faith and fair dealing; 13) she demonstrated "intentional infliction of emotional distress"; 14) she proved a cause of action for constitutional violations; and 15) "Smith [wa]s not entitled to qualified immunity."
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts; we then decide whether the motion judge's application of the law was correct. Id. at 230-31. We assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995).
With respect to the numerous arguments defendant raises regarding the dismissal of her LAD claims, we agree with the motion judge that plaintiff failed to establish any evidence that defendants discriminated against her because she was white. Plaintiff's LAD claims were two-fold. First, she contended that Smith and Irvington failed to re-hire her because she was white; second, she claims that during her four years of service as the tax collector, she was subject to discrimination in a hostile workplace, and treated disparately as evidenced by defendants' failure to fully compensate her.
"To prove a prima facie case of discrimination, the plaintiff must demonstrate that he or she (1) belongs to a protected class; (2) applied for or held a position for which he or she was objectively qualified; (3) was not hired or was terminated from that position; and (4) the employer sought to, or did fill the position with a similarly-qualified person." Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005)(citing Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492 (1982)). When plaintiff is not a member of the minority, the analytical framework is somewhat altered. To support such a claim of reverse discrimination, plaintiff must show that she has been victimized by an "unusual employer who discriminates against the majority." Erickson v. Marsh & McLennan Co., 117 N.J. 539, 551 (1990). The same requirement applies to reverse discrimination claims of a hostile work environment. Oakley v. Wianecki, 345 N.J. Super. 194, 201-02 (App. Div. 2001). The mere fact that plaintiff is white, and her employers are African American, is insufficient. Decapua v. Bell Atlantic - New Jersey, Inc., 313 N.J. Super. 110, 124 (Law Div. 1998).
We agree with the motion judge that plaintiff failed to introduce any direct or circumstantial evidence by which it could be inferred that Irvington was the unusual employer who discriminated against the majority, and that she was not re-appointed because she was white. Smith offered legitimate reasons for not appointing her, and plaintiff failed to demonstrate those reasons were pretextual. The same can be said regarding plaintiff's hostile work environment LAD claim. There was no evidence that the treatment she received was because she was of a different race than those in charge of the municipal government. We affirm the grant of summary judgment as to plaintiff's LAD claims.
It is difficult to discern whether plaintiff is challenging the dismissal of her CEPA claims. She seems to argue that since she did not pursue the claim as to Smith, it was not subject to dismissal under the "law of the case" doctrine, and that CEPA's waiver provision, N.J.S.A. 34:19-8, does not apply and therefore does not provide a basis for dismissal of her other claims. In any event, we agree with the motion judge that plaintiff's CEPA claims regarding any of defendants' conduct during the four years plaintiff served as tax collector were appropriately dismissed by application of our decision in Casamasino, supra, 304 N.J. Super. at 242 (holding that plaintiff tax assessor occupied "a unique, independent status" with "statutorily created job security" and falls beyond the scope of CEPA's protection). Plaintiff abandoned any CEPA claim she made against Smith. Furthermore, we do not believe the judge used CEPA's waiver provision as a basis for dismissing plaintiff's other claims, nor do we, and therefore, plaintiff's argument in this regard is moot.
Plaintiff claims the dismissal of her common law tort claims for failure to comply with the notice provisions of the TCA was in error, and that she adequately demonstrated a cause of action for each of them such that summary judgment was improper. It is undisputed that plaintiff never served a notice upon Irvington or any of the municipal officials as required by the TCA. Plaintiff's claims for intentional and negligent torts, therefore, were properly dismissed. Velez v. City of Jersey City, 180 N.J. 284, 289, 292 (2004). While the TCA's notice provisions are not applicable to plaintiff's constitutional claims, id. at 296, we agree with the motion judge that plaintiff essentially adduced no proof in support of those claims.
Plaintiff contends that her claim for a violation of the implied contractual covenant of good faith and fair dealing was improperly dismissed, and that after she was terminated she was denied payment for her accrued compensatory time. At the least, she points to a statement made by defense counsel during oral argument that acknowledged there was still a dispute as to the amount of money plaintiff was owed.
While we are reluctant to remand the issue to the motion judge, we have searched the record and the transcripts that have been provided and we find no reason expressed by any of the motion judges as to why plaintiff's contractual claim in this regard was dismissed. Given the inadequacies of the appellate record we noted above, we cannot discern whether a material factual dispute remains, and we cannot exercise original jurisdiction and resolve the issue. Therefore, we remand the issue for further proceedings to determine solely whether plaintiff is entitled to unpaid additional compensation for compensatory time she earned prior to December 31, 2004. The motion judge may be able to decide the issue based upon the materials already supplied at the time of defendants' motions or he may need supplementary documentation; in any event, we leave to his sound discretion the conduct of further proceedings necessary to the proper determination of plaintiff's claim.
We consider the balance of plaintiff's arguments to be of insufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.