October 20, 2008
NARINDER GAUTAM, PLAINTIFF-APPELLANT,
NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE, ASSISTANT COMMISSIONER JOHN WALTON,*FN1 DANA FORAKER, EMPLOYEES RELATIONS COORDINATOR, AND NANCY H. HRITZ, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2988-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2008
Before Judges Carchman and Sabatino.
Plaintiff Narinder Gautam appeals from the April 13, 2007 order of the Law Division granting summary judgment and dismissing his complaint, as well as a June 5, 2007 order denying his motion for reconsideration. We affirm.
We briefly set forth the relevant facts. Plaintiff, a long-time employee and principal statistician in the Office of Solvency Regulation in the Department of Banking and Insurance (DOBI), filed a complaint against three other DOBI employees -defendant John Walton, assistant commissioner, defendant Dana Foraker, employee relations coordinator, and defendant Nancy Hritz, plaintiff's former immediate supervisor*fn2.
The first count of the complaint states:
1. Nancy H. Hritz, being the supervisor of Narinder Gautam since 1987 till 1989, rated the plaintiff's job performance as extremely poor without any basis after 10 years of satisfactory performance under prior supervisors. Nancy H. Hritz, also caused the plaintiff undergo psychiatric evaluations in 1988, 1989 and 1990 to undermine the subject's credibility and personal privacy and to have a professional judgment determination [of] fitness to perform the duties of the job. The plaintiff was suspended in early 1990 for poor performance with a psychiatrical [sic] stigma for life. Plaintiff asked [for] the copies of the aforementioned psychiatric evaluations reports without success and finally refused the said reports got lost. This is an unprofessional and irresponsible behavior on the part of Nancy H. Hritz which has hurt the plaintiff and has damaged his credibility and undermined his personal reputation.
The second count refers to an August 10, 2004 incident involving Hritz and then relates that, on November 9, 2004, Foraker and Walton directed plaintiff to undergo a psychiatric evaluation on that same date. Actually, the memo advising plaintiff of the psychiatric appointment was November 5, 2004, not November 9, as plaintiff alleges. The complaint then further alleges:
4. Plaintiff underwent [a] psychiatric evaluation to determine [t]he plaintiff's fitness to perform his job duties, for more then [sic] 2 hours and all the minute details of my family's [p]ersonal life and medical history of my son and my privacy was invaded by the [D]octor [C]hiappatta and reported to Dana [Foraker], employee coordinator at the New Jersey Department of Banking And Insurance. The Doctor [C]hiappatta advised the plaintiff to obtain the copy of the report from Dana [Foraker] who finally refused to provide the plaintiff the copy of the psychiatric evaluation [r]eport.
5. The plaintiff has been illegally deprived of his rights to have access to my own personal psychiatric report which [in] fact has been put on the web site of Government Record council without details. It has damaged my reputation beyond repair. The plaintiff has suffered significant psychiatrical [sic] impairment as a result of illegal actions of John [Walton] and Dana [Foraker], Nancy H. Hritz.
In his ad damnum clause, plaintiff states "WHEREFORE, plaintiff, Narinder Gautam, requests judgment [sic] against defendants for damages to his reputation and character and psychiatric stigmas given to plaintiffs [sic] son and family, costs, interest, and attorney fees." (Emphasis added).
Paragraph 2 of the second count refers to an incident occurring on August 10, 2004, in the cafeteria. The details of that incident are memorialized in a memorandum prepared by plaintiff:
Around 10 A.M., I go to pick up my coffee every day. Usually, I find, Lynda Klebold, Nancy Hritz, and Mike Molloy who are and have never been my friends rather my staunch enemies. I have not done anything against these individuals in my 28 years of service in this insurance department. Today, Lynda said 'we will get him in the mercer county college' to Nancy, who in turn, as I was getting back, gestured with eye contact with me, a hand motion of stabbing in the stomach area. Immediately after that in the common area of floor 2, I met Kathy Wood and told this incident. This is my every day life whenever these three individuals are together, which is the case all the time. I rarely see these individuals apart from one another based on my observations over 28 years of office life. I don't have many friends whom I can trust in this department, no body [sic] seems to trust me. I am concerned, if I go to mercer county college in the fall, I may get hurt directly or indirectly by these three individuals. This is a case of harassment by these females, mainly Lynda and Nancy towards me over the last 28 years, many examples are there. To day,s [sic] incident is the last. I can bear. I have my right of self-defense.
Next time without asking any body [sic] I shall call 911 and report officially, make no mistake. Enough is enough I can't take from these three individuals any more.
Please advise Plaintiff appeared for the examination and following receipt of the results of the examination, plaintiff continued in his employment without any change in his job status or adverse job action.
Defendant moved to dismiss the complaint. Judge Innes, in the Law Division, concluded that the complaint sounded in defamation, and the applicable statute of limitation barred such action after one year. N.J.S.A. 2A:14-3. Since plaintiff's action was commenced on November 9, 2006, it was barred by the statute. He dismissed the complaint.
On appeal, plaintiff challenges the requirement that he submit to a psychiatric examination as well as the impact of such examination. Finally, he asserts that his cause of action was based on the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, rather than defamation.
We address the issues raised by plaintiff.
Our standard for reviewing the granting of a motion for summary judgment is de novo, and we apply the same standard governing the trial court under Rule 4:46-2(c). Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007), EMC Mortgage Corp. v. Chaudhri, 400 N.J. Super. 126, 135-36 (App. Div. 2008). Generally, we must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1996); see also Sahli v. Woodbine Bd. of Educ., 193 N.J. 309, 319 (2008).
Plaintiff concedes that the first count does not state a cause of action, but he included it in the complaint to provide "a past historical factual statement of events and not an allegation." In fact, the allegations in the first count are relied on by plaintiff to establish a continuing course of action or a continuing violation premised on an attempt to circumvent the statute of limitations and provide the factual underpinnings to establish a hostile work environment. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 6-7 (2002) (recognizing "an equitable exception to the statute of limitations known as the 'continuing violation' doctrine [where] a plaintiff may pursue a claim for discriminatory conduct if he or she can demonstrate that each asserted act by a defendant is part of a pattern and at least one of those acts occurred within the statutory limitations period"). Despite plaintiff's apparent purpose for including the information contained in count one, his claim for relief focuses on damage to his "reputation and character."
In his analysis, Judge Innes concluded that the complaint sounded in defamation. We agree. Even an expansive reading of the complaint suggests that plaintiff's focus of concern was that he was subjected to a psychiatric examination, precluded from access to the results of the exam and in some manner these elements caused damage to his reputation entitling him to relief. Higgins v. Pascack Valley Hosp., 158 N.J. 404, 426 (1999) (recognizing that a statement is defamatory if it "is false and 'is injurious to the reputation of another' or exposes another person to 'hatred, contempt or ridicule' or subjects another person to 'a loss of the good will and confidence' in which he or she is held by others"); Decker v. Princeton Packet, Inc., 116 N.J. 418, 425 (1989) (stating that "a defamatory statement is one that is false and is 'injurious to the reputation of another'"); Krumholz v. TRW, Inc., 142 N.J. Super. 80, 89 (App. Div. 1976) (noting that injury to plaintiff's reputation and feelings constitute general damages in libel or defamation claims); see also Restatement (Second) of Torts § 559 (1977) (a defamatory communication is one that "tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him").
The motion judge correctly identified the applicable limitations provision in defamation actions as one year.
N.J.S.A. 2A:14-3 ("Every action at law for libel or slander shall be commenced within 1 year next after the publication of the alleged libel or slander"). The examination was ordered on November 5, 2004, the examination was held on November 9, 2004, and the complaint was filed on November 9, 2006. Whether the order for the psychiatric exam or the exam itself forms the basis of the challenge to plaintiff's reputation, the action is barred.
Plaintiff now asserts that his claim is not defamation but discrimination under the LAD. It is difficult to glean from plaintiff's pleadings the true nature of the asserted discrimination. First, the August 10, 2004 incident contains no references to plaintiff, has no discernible nexus to any activity involving plaintiff, and in or out of context, makes little sense. It fails to support a conclusion that defendants were engaged in conduct that would be unlawful under any theory advanced by plaintiff. Nevertheless, the allegations were addressed by defendant Foraker and found to be without merit. Plaintiff continued to complain, and ultimately, the examination was ordered. While we will read pleadings with indulgency, we will not recognize a cause of action when not plead. See Pressler, Current N.J. Court Rules, comment 4.1 on R. 4:6-2(e) (2009) (noting that "the complaint must be searched in depth and with liberality to determine if a cause of action can be gleaned even from an obscure statement[;] . . . [e]very reasonable inference is therefore accorded the plaintiff"); See also In re Contest of November 8, 2005, 192 N.J. 546, 569 (2007), aff'g, 388 N.J. Super. 663, 666 (App. Div. 2006) (same); NCP Litigation Trust v. KPMG LLP, 187 N.J. 353, 365 (2006) (same).
We hasten to speculate on the actual nature of plaintiff's claims under the LAD. If the reference is to the August 10, 2004 comments as creating a hostile workplace, they fall far short of meeting the standards most recently restated by the Supreme Court.
Recently, in Cutler v. Dorn, ___ N.J. ___ (2008), the Supreme Court reexamined the analysis necessary to establish a hostile work environment. The Court said:
When evaluating whether conduct is sufficiently severe or pervasive to create a hostile work environment, we focus on the "harassing conduct . . ., not its effect on the plaintiff or the work environment." Lehman [v. Toys' R 'Us, 132 N.J. 587, 606 (1993)]. That is because neither "a plaintiff's subjective response" to the harassment, id. at 613, nor a defendant's subjective intent when perpetrating the harassment, id. at 604-05, is controlling of whether an actionable hostile environment claim exists. Whether harassing conduct makes a work environment hostile is assessed by use of a reasonable person standard. See Lehmann, supra, 132 N.J. at 603-04. We adopted that objective standard to provide flexibility so that the definition of "harassment" would reflect evolving community standards. Id. at 612. Thus, severe or pervasive" conduct must be conduct that would "make a reasonable [person] believe that the conditions of employment are altered and [that the] working environment is hostile." Id. at 604. Making that assessment requires an examination of the totality of the circumstances.
[Id., (slip op. at 13-14).]
See also Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999) (noting that "[a]n employment discrimination law such as the LAD is not intended to be a '"general civility" code' for conduct in the workplace").
Although there was no specific finding as to the merits of plaintiff's assertion or the bona fides of the incident to support an LAD claim, we conclude that the August 10, 2004 incident clearly does not; moreover, having had the benefit of the entire record and plaintiff's submissions and references to his relationships with his fellow workers, we discern no impropriety in requiring the psychiatric examination to determine his fitness for work.
Even if we were to conclude that one could find a scintilla of support for his assertion that his complaint supports an LAD claim, we need only observe that the 14-year hiatus between that incident and the prior incidents alleged in count one of his complaint do not support any continuing course of conduct that would invoke the principles espoused in Shepherd.
Finally, we observe that the ordering of the psychiatric exam, the fulcrum of plaintiff's complaint, likewise is insufficient to support any LAD claim. Although much of plaintiff's expansive appendix filed on this appeal is irrelevant to the issues involved, it informs us with sufficient background to conclude that the totality of the historical and present circumstances surrounding plaintiff's employment provides a legitimate basis for concluding that there was sufficient business necessity for ordering the psychiatric exam. See Porter v. United States Alumoweld, 125 F.3d 243, 249 (4th Cir. 1997) (concluding that an employer's demand for medical documentation for fitness to safely work was a business necessity for a machine operator required to lift up to forty-five pounds two to three times a day, who had a history of back injuries, filed a worker's compensation claim for same and was on personal leave of absence); Albert v. Runyon, 6 F. Supp. 2d 57, 69 (D. Mass. 1998) (holding that an employer's demand for psychiatric certification of fitness-for-duty was appropriate because employer had reason to believe a postal worker's clinical depression might affect her job performance).