September 30, 2008
ROBERTA SATTELBERGER, PLAINTIFF-APPELLANT,
TOWNSHIP OF BYRAM AND GREGORY R. POFF, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-507-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2008
Before Judges Winkelstein, Fuentes and Gilroy.
Plaintiff appeals from an August 17, 2007 summary judgment dismissing her employment discrimination complaint. We affirm.
Plaintiff is the former Municipal Court Administrator for defendant Byram Township. She held her position from December 10, 1997, until her resignation on December 10, 2004.
Defendant Gregory Poff became the Township Manager in May 2004. He held his first department head meeting on June 4, 2004. Although plaintiff believed her attendance at the meeting would violate the Code of Conduct for Judicial Employees (the Code), she nevertheless attended because the municipal court services division manager, Irene Turner, told her she was permitted to attend. Plaintiff did not tell Poff either prior to or at the meeting that she believed her attendance was in violation of the Code.
Sometime after the meeting, plaintiff was called to Poff's office to discuss a voucher payment issue. Plaintiff's daughter had worked the recording system during a municipal court session in May 2004, and Poff told plaintiff that her daughter's employment with the municipal court posed a conflict. Plaintiff responded that it was Judge Jubanowsky's decision to have her daughter work the system. Poff wanted plaintiff to promise that her daughter would not work the recording system in the future, but plaintiff declined to do so, telling Poff to talk to Judge Jubanowsky.
After discussing the voucher payment issue, plaintiff told Poff that her attendance at the department head meetings was a potential violation of the Code. According to plaintiff, Poff continued to insist that she attend. Although plaintiff did not feel sexually harassed at this meeting, she felt that Poff talked down to her; and that it was inappropriate for him to ask her to promise that her daughter would not work another municipal court session. In plaintiff's opinion, Poff would not have demanded such a promise from a man.
On July 16, 2004, plaintiff, Poff, and Lisa Spring, the Township's Financial Director, met to discuss plaintiff's attendance at staff meetings and the tone of correspondence she sent to the Township attorney. Poff told plaintiff to have all written correspondence approved by him before sending and to report her whereabouts to Spring before leaving her desk. According to plaintiff, no other municipal employees were subjected to similar restrictions or micromanagement.
Poff testified that the meeting was civil, and that he and plaintiff agreed that a letter should be sent to the Administrative Office of the Courts (AOC) to determine if plaintiff was permitted to attend department head meetings. Plaintiff later claimed that the issue of sending a letter to the AOC was never discussed.
Poff prepared a memorandum to summarize what occurred at the meeting. In his memo, he stated that a letter would be sent to the AOC to determine if it would be a conflict for plaintiff to attend department head meetings. Spring testified that Poff directed plaintiff to send such a letter.
Judge Jubanowsky testified that whether plaintiff should be required to attend department head meetings was not that "big a deal" to Poff. He testified that it was not appropriate for anyone from the court to attend these meetings, whether it was myself or Roberta and that the way to resolve it was to get an opinion and he didn't have any problem with it, [Poff] didn't push for attendance on a temporary basis until the opinion was forthcoming and that was pretty much the end of it.
I didn't feel that [Poff] was angry with me or that this was something that was festering on an ongoing basis and he could have been angry with me.
Following the July 16 meeting, Poff did not require plaintiff to attend department head meetings until a determination was made by the AOC.
As to Poff's questioning the "tone" of plaintiff's correspondence to the municipal attorney, plaintiff acknowledged that the requirement that letters be checked for tone and content applied to all Township employees, not just to her. Nevertheless, she also believed she was being indirectly sexually harassed based on Poff's condescending and reprimanding behavior.
In August 2004, because the part-time deputy court administrator, Sherri Hansen, was not working the minimum number of hours she had been appointed to work, plaintiff requested that she "offer her resignation." Plaintiff helped Hansen write her resignation letter that day, a Friday. The following Monday, Judge Jubanowsky spoke with Hansen, who was hysterical about what had happened. Judge Jubanowsky was upset with plaintiff as he did not want Hansen to resign. He considered her to be one of the best employees he had. He testified that he would have considered firing plaintiff himself for telling Hansen to resign if he was not so fond of plaintiff. After the judge advised Poff of the Hansen resignation issue, Poff instituted an administrative investigation by the Township police department.
On August 11, 2004, when Poff told plaintiff that an investigation was being conducted, she responded that any further conversations or communications "would be through her attorney." Plaintiff testified that as she was leaving Poff's office, he said, "you know how to make this stop," which plaintiff interpreted as having sexual connotations. Plaintiff did not, however, confront Poff regarding her interpretation of his comment; nor did she tell Judge Jubanowsky or any other Township employee that she thought the statement was sexual in nature.
Sergeant Raymond Rafferty, who was in charge of the investigation, testified that Poff never indicated that he had problems with plaintiff; rather, Poff was not comfortable with plaintiff asking for Hansen's resignation and wanted "to find out what was going on." On September 13, 2004, after Rafferty's report confirmed that plaintiff told Hansen to resign and helped her prepare her letter of resignation, plaintiff, Poff, Judge Jubanowsky, and Spring met regarding the incident. In her answers to interrogatories, plaintiff states that "Poff read aloud from a written reprimand and a second memo with points of criticism." The written reprimand states the following:
I am advising you, with this written reprimand, that you are to perform the functions of your job within the confines of local ordinance and state statute. You do not have the authority to request another employee's resignation. Your writing or assistance in writing Ms. Hansen's letter of resignation further demonstrates a lack of understanding of the authority and responsibility of the Court Administrator's position.
Your action that day at a minimum can be viewed as interfering with another employee's work and more severely can be viewed as threatening an individual's livelihood. Acting outside the scope of your authority not only disrupts the effective administration of government but also opens the Township to potential litigation.
Poff also presented plaintiff with a second memorandum dated September 13, 2004, which was captioned "Personnel matters and other issues." The memo discussed the letter plaintiff sent to the AOC, in "accordance with [Poff's and plaintiff's] meeting on July 16, 2004." The memo reminded plaintiff that any correspondence sent on Township letterhead must be done in a "professional, courteous, objective manner." The memo also discussed other alleged deficiencies with plaintiff's employment, but it did not state that Poff was upset that plaintiff sent the letter to the AOC.
Following the investigation of the Hansen incident, plaintiff's work-related responsibilities were not reduced, she had limited involvement in the hiring of additional help for the court, and she was not permitted to discuss work hours with Hansen. By letter dated November 18, 2004, Assignment Judge Bozonelis informed plaintiff that she was not to attend Township department head meetings.
Plaintiff resigned on December 1, 2004. Poff was "surprised" by plaintiff's resignation; he had just hired a second part-time employee for the municipal court because plaintiff had requested more help. Plaintiff began working for the Borough of Wharton in December 2004, having interviewed for the job the prior month.
In plaintiff's six-count complaint against the Township and Poff, she asserted that: (1) they violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to-8 (count one); (2) they singled out plaintiff because she is a woman, violating the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to-49 (count two); (3) they retaliated against plaintiff after she complained about the discrimination, violating the LAD (count three); (4) their conduct constituted violations of the public policies established by the State of New Jersey (count four); (5) they intentionally caused plaintiff to suffer severe emotional distress (count five); and (6) their actions "constituted a wrongful constructive discharge of plaintiff" (count six).
Defendants moved for summary judgment. At oral argument on August 17, 2007, plaintiff withdrew counts four and six of her complaint. The judge granted defendants summary judgment on the remaining counts, making the following pertinent findings:
The fifth count is an intentional infliction of emotional distress charge. There is no showing of emotional distress so severe that no reasonable person could be expected to endure, which is the standard of what has to be shown on an intentional infliction of emotional distress. So that count needs to be dismissed on summary judgment.
With respect to the whistle blower, the question is whether there was an adverse employment action....
The investigation alone cannot be grounds for finding that there was an adverse employment action....
[Plaintiff] also claims that she had already been previously reprimanded, and that she's talking about the reprimand from Judge Jubanowsky, but that again, I don't find the fact that the Town Manager decides to follow up on it after being told by... Judge Jubanowsky as to what had happened by itself constitutes an adverse employment action.
There are other allegations that she was chastised for leaving earlier after... working through lunch and for having the office closed during business hours. I think those are appropriate management decisions. And I don't see how anybody could ever find that that's an adverse employment action when to me that's clearly something that a Municipal Manager would want. He wouldn't want any of the municipal offices to be in a status during the working day where there wasn't coverage....
The rules as to the [p]laintiff's communications kind of stands alone by itself. She says that she was the only one [who] was told that there had to be preview of her communications.... I think it's such a nominal issue that I can't find that any of those things constitute what the [c]courts have referred to as adverse employment action....
So I find that there is no adverse employment action. If I find that there's no adverse employment action, then I can't find a violation of [C]EPA.
With respect to the retaliation under New Jersey LAD and the sexual discrimination, we have this comment from Mr. Poff to the [p]laintiff after the August 11th meeting. "You know how to make this stop." That's the quotation from him. She perceives this as a sexual comment.... And I don't think a reasonable person as a woman standing in the shoes of the [p]laintiff could in any way possibly perceive that comment as being a sexual comment....
So all we're left with, other than the comment, is the [p]laintiff's sense that Poff was condescending. And that again is just the [p]laintiff's personal belief....
[Plaintiff] also claims that when she was fired she had complained of sexual harassment. There was the one thing in her contemporary notes that she told Mr. Poff at the end of one of the meetings that he was harassing her.... I make a distinction between saying that somebody's harassing you and saying that you're sexually harassed or being harassed because of gender. Those are two different things. I think that she may have been... harassed because... of a personality conflict between the two of them. They started off on the wrong foot and they continued on the wrong foot.
This is not the type of action that belongs in the courts as far as I'm concerned. I'm granting summary judgment in favor of the [d]efendant on all the remaining counts that were not withdrawn.
Our review of a summary judgment is de novo, applying the same legal standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A motion for summary judgment should be granted only when the moving party establishes the absence of any genuinely disputed issues of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
Applying this standard, we begin with plaintiff's contention that defendants retaliated against her for her refusal to attend department head meetings. The LAD prohibits reprisals by an employer against an employee as follows:
d. For 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. [N.J.S.A. 10:5-12d.]
A retaliation claim under the LAD exists only when an employee asserts that she was retaliated against for asserting rights protected by the LAD. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). To prove a retaliation claim under the LAD, a plaintiff must prove: (1) "[the plaintiff] engaged in a protected activity known to the employer; (2) [the plaintiff] thereafter was subjected to [an] adverse employment decision by the employer; and (3) there was a causal link between the two." Id. at 445. If a plaintiff can establish those three elements, then the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the complained of action; then, the plaintiff must persuade the court that the proffered reason is mere pretext for retaliation. Ibid.
Here, plaintiff has met the first prong of the test, having engaged in a protected activity: refusing to attend department head meetings and inquiring whether it was an ethical violation for her to attend.
Plaintiff asserts that she has also met the second prong of the test, having been subject to an adverse employment decision. Factors that may constitute an adverse employment decision in the context of an LAD retaliation claim include "the employee's loss of status, a clouding of job responsibilities, diminution in authority, disadvantageous transfers or assignments, and toleration of harassment by other employees." Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002), modified, 179 N.J. 425 (2004). Plaintiff has failed to prove any of these factors.
Her job position as a certified municipal court administrator remained the same. She suffered no change in working conditions or loss of pay. We agree with the trial court that the reprimand, the investigation of plaintiff's activities, and limiting her involvement in the hiring process were minor actions, not qualifying as adverse employment decisions under the LAD. See Klein v. Univ. of Med. and Dentistry of N.J., 377 N.J. Super. 28, 46 (App. Div. 2005) ("[I]mposition of a minor sanction is insufficient to constitute a retaliatory action under the statute. Nor does the imposition of a condition on continued performance of duties in and of itself constitute an adverse employment action as a matter of law, absent evidence of adverse consequences flowing from that condition." (citations omitted)).
That said, even if we were to assume that Poff's reprimand of plaintiff constituted an adverse employment decision, plaintiff has still failed to link the reprimand to any illegal or improper action by defendants. Plaintiff's September 13, 2004 reprimand substantially arose out of an incident unrelated to her refusal to attend department head meetings. The reprimand was caused by plaintiff's instructing Hansen to resign, and assisting her in preparing her resignation letter. Put simply, plaintiff has failed to establish a causal link between the events surrounding her refusal to attend department head meetings and her reprimand.
A similar analysis applies to plaintiff's retaliation claim pursuant to CEPA. CEPA was designed to protect employees from retaliation by their employers if the employee revealed, threatened to reveal or objected to unethical or illegal activity. N.J.S.A. 34:19-3. Retaliatory action means "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2e. CEPA provides, in pertinent part that:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law... or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law.... [N.J.S.A. 34:19-3.]
CEPA was enacted to eliminate "vindictive employment practices." Kolb v. Burns, 320 N.J. Super. 467, 477 (App. Div. 1999). To maintain an action under CEPA, the employee must show: 1) the plaintiff reasonably believed the employer's conduct violated the law; 2) the plaintiff performed whistleblowing activity; 3) the employer took adverse action against the plaintiff; and 4) a causal connection between the whistleblowing activity and the adverse action. Id. at 476. "The same analytical framework [of an LAD retaliatory claim] applies to a CEPA claim, because CEPA is an anti-discrimination statute." Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 166 (App. Div. 2005).
Here, plaintiff's CEPA retaliation claim fails substantially for the same reasons that her LAD retaliation claim failed. Plaintiff is unable to demonstrate that she suffered an adverse employment action as a result of her refusal to attend department head meetings or her letter to court officials seeking guidance as to that issue. What is more, even assuming that the reprimand constituted an adverse employment action, plaintiff is unable to demonstrate a causal connection between that action and her whistleblowing activity. The reprimand arose because of plaintiff's actions toward Hansen, not her refusal to attend department head meetings. Thus, her CEPA retaliation claim does not survive summary judgment.
Next, we turn to plaintiff's allegation of sex discrimination and a hostile work environment. Plaintiff contends that defendants "violated the provisions of the [LAD]" because she was treated "differently because she is a woman." That argument is not supported by the record.
The LAD prohibits employment discrimination based on sex. N.J.S.A. 10:5-12(a). Sexual harassment cases fall into two categories: quid pro quo sexual harassment, which occurs when an employer attempts to make an employee's submission to sexual demands a condition of his or her employment; and hostile work environment sexual harassment, which occurs when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile. Lehmann v. Toys'R' Us, Inc., 132 N.J. 587, 601 (1993). Here, it is unclear if plaintiff contends that Poff's statement constituted quid pro quo sexual harassment or that his conduct toward her in the workplace created a hostile work environment. In either case, however, plaintiff's proofs are insufficient to demonstrate a prima facie showing to survive summary judgment.
Plaintiff contends that Poff was condescending to her because of her gender; and that the statement, "you know how to make it stop," was a request from Poff for sexual favors or otherwise constituted sexual harassment. We disagree. No reasonable woman standing in plaintiff's shoes could perceive that comment, or Poff's other actions toward plaintiff, as constituting sexual harassment. Although Poff and plaintiff may have had personality differences, the proofs do not support an inference that Poff harassed plaintiff based upon her gender. Poff's actions were based on business reasons and were acceptable under the law. To conclude otherwise would be mere speculation.
Next, we address plaintiff's contention that defendants' "cumulative outrageous conduct constitutes intentional infliction of emotional distress." Again, we disagree.
Intentional infliction of emotional distress is conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Buckley v. Trenton Sav. Fund Soc., 111 N.J. 355, 366 (1988). The defendant's conduct "must have been the proximate cause of the plaintiff's emotional distress," and "the emotional distress suffered by the plaintiff must be so severe that no reasonable man could be expected to endure it." Ibid. (internal quotation omitted). The plaintiff cannot recover for his or her emotional distress if that emotional distress would not have been experienced by an average person. Decker v. Princeton Packet, Inc., 116 N.J. 418, 431 (1989).
Here, plaintiff's claims do not reach the threshold of a claim for intentional infliction of emotional distress. Plaintiff has not proved that Poff did anything wrong, nor has she submitted evidence that she suffered emotional distress as a result of Poff's actions. Poff's behavior was not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Buckley, supra, 111 N.J. at 366.
Plaintiff has raised a number of other issues in her appeal. Those issues are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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