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Butler v. Union County Prosecutor's Office

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 17, 2008

MARY JEAN BUTLER, PLAINTIFF-APPELLANT,
v.
UNION COUNTY PROSECUTOR'S OFFICE, UNION COUNTY, UNION COUNTY BOARD OF CHOSEN FREEHOLDERS, THEODORE ROMANKOW AND ALBERT CERNADAS, JR., DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-320-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2008

Before Judges A. A. Rodríguez and Waugh.

Plaintiff Mary Jean Butler, formerly the Chief Clerk of the Union County Prosecutor's Office, appeals from the June 8, 2007 order by Judge John Pisansky, granting the summary judgment motion by defendants Union County Prosecutor's Office, Union County, Union County Board of Chosen Freeholders, Theodore Romankow and Albert Cernadas, Jr. We affirm.

Butler, a fifty-one-year-old female, has been employed by the Union County Prosecutor's Office since 1972. The title Chief Clerk is a civil service position. She supervised around seventy employees. On July 1, 2003, after thirteen years of service as Chief Clerk; Butler was reassigned to the John H. Stamler Police Academy. This transfer did not involve a reduction in rank or salary, however, following the transfer, she supervised only two employees.

Butler argues that the transfer involved a different location, as well as job duties that did not fall within her civil service job title. She also alleged that shortly before the transfer, although inquiring about an early retirement package she was in no way ready to retire. At some point, defendant Cernadas, the First Assistant Prosecutor, told her that if she did not retire she would be transferred. After the reassignment, her Chief Clerk duties were taken over by the Acting Assistant Chief Clerk, Dina Appuzzio, who is eight years younger than Butler.

Butler filed a complaint with the Equal Employment Opportunity Commission. She was issued a right-to-sue letter. Butler sued defendants in the New Jersey Superior Court, alleging causes of action for hostile work environment and unlawful retaliation pursuant to the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD); age discrimination pursuant to the Age Discrimination and Employment Act, 29 U.S.C.A. § 621-634 (ADEA); and common law claims for intentional and negligent infliction of emotional distress, and breach of implied employment contract.

Defendants removed Butler's complaint to the United States District Court for the District of New Jersey based on federal subject matter jurisdiction over the ADEA claim. Judge William J. Martini, U.S.D.J., granted defendants' motion for summary judgment on Butler's ADEA claim. Butler voluntarily dismissed the intentional and negligent infliction of emotional distress claims. For reasons of comity, Judge Martini remanded Butler's state law claims to the court of origin. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350-51, 108 S.Ct. 614, 619-20, 98 L.Ed. 2d 720, 730 (1988).

In the Law Division, defendants moved for summary judgment. Butler opposed the motion, submitting a counterstatement of material facts.

Judge Pisansky granted the motion and issued an oral opinion. The judge found that Butler had established the first prong of an LAD claim, i.e., a prima facie showing of discrimination. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). The judge found that defendants had "proffered legitimate reasons for" the transfer; Id. at 449, in that Butler was not performing her job satisfactorily. This caused low morale, back-biting and a reduction in productivity. According to Prosecutor Romankow, Butler allowed her employees to come in late, leave early and to be non-productive. The judge found that Butler had not rebutted the legitimacy of these reasons by showing that the reasons were a fabrication or did not actually motivate the transfer. Id. at 456.

The judge also rejected the hostile work environment claim, finding that "the evidence presented by [Butler] fails to satisfy the four requirements [of such a claim]." He further found that the claim of retaliation for not accepting an early retirement option was not supported by the record. The judge observed that the only evidence supplied by Butler in opposition to the motion for summary judgment and in support of her contention that she was the victim of discriminatory retaliation was her certification, which the judge described as "conclusory." Applying the appropriate test for a prima facie case of discrimination to the evidence, the judge concluded that Butler had failed to demonstrate that there was any link between Butler's claimed protected activities and any acts of retaliation.

Butler appeals, contending that the judge's "determination that a genuine issue of material fact does not exist was inconsistent with the competent evidence." We disagree. Butler also contends that "issues of credibility are to be determined by the trier of fact." We agree. However, here viewing all evidence in the light most favorable to Butler, a prima facie case for hostile work environment and retaliation claims has still failed to be established.

We begin by analyzing the elements of each cause of action. Butler argues that she was the victim of age discrimination.

The elements comprising the traditional formulation of the prima facie case for discrimination are that: (1) plaintiff 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 adverse employment actions. Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, 480-81 (1991); Jansen v. Food Circus Spermarkets, Inc., 110 N.J. 363, 382 (1988). Our Supreme Court has recently implied that evidence tending to support an inference that an employment decision was based on an illegal discriminatory criterion may be required. Zive, supra, 182 N.J. at 447; El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 167 n.7 (App. Div. 2005).

Butler alleges that she was terminated from her employment in retaliation for her protected activity of not accepting an early retirement package. In order to survive summary judgment, Butler had to demonstrate that: (1) she engaged in a protected activity known by the employer; (2) thereafter the employer unlawfully retaliated against her; and (3) their participation in the protected activity caused the retaliation. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995) (citing Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990).

Butler also argues that she was subjected to a hostile work environment. In any LAD-based hostile environment claim, the plaintiff must demonstrate that: (1) the conduct complained of was unwelcome; (2) that it occurred because of the plaintiff's inclusion in a protected class under the LAD; and (3) that a reasonable person in the same protected class would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive work environment. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993). Review of a hostile work environment claim requires us to consider the totality of the circumstances. Id. at 607; Mandel v. UBS/Paine Webber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004), certif. denied, 183 N.J. 213-14 (2005).

Here, viewed in the light most favorable to Butler, we apply these standards against the evidence presented. We conclude as did the judge, that she did not present a prima facie case as to any of her causes of action.

We affirm substantially for the reasons offered by Judge Pisansky in his June 8, 2007 oral decision.

Affirmed.

20081017

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