November 12, 2008
DONNA MUELLER, PLAINTIFF-APPELLANT,
PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND HOWARD BRANDWEIN, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-1208-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2008
Before Judges Reisner, Sapp-Peterson and Alvarez.
Plaintiff appeals from a September 7, 2007 trial court order dismissing her employment discrimination complaint on a summary judgment motion filed by defendants the Port Authority of New York and New Jersey (Port Authority) and Howard Brandwein. We affirm, although on somewhat different grounds than those stated by the motion judge.
Plaintiff is a toll collector employed by the Port Authority to work at the Goethals Bridge. Her 2006 complaint was based on a March 12, 2005 incident in which her supervisor, Howard Brandwein, searched a tote bag in which plaintiff was carrying personal as well as work items. She contended that she was particularly humiliated because Brandwein made her get down on the floor and dump out the contents of the tote bag in front of her co-workers. Plaintiff claimed that her two black male co-workers were not subject to having their bags searched and that she was singled out because of race or sex discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.*fn1 Plaintiff also claimed that in 2001, she was passed over for promotions and was denied overtime opportunities.
Defendants filed a motion for summary judgment supported by legally competent evidence in the form of certifications from Brandwein and his supervisor Patricia Trimarchi. Trimarchi attested that the Port Authority had been receiving complaints that toll collectors were neglecting their work and slowing down traffic. As a result, on March 11, 2005, Trimarchi issued a directive to all toll supervisors reminding them that toll collectors were not allowed to have cell phones, reading material and other prohibited items in the toll booths. Trimarchi also directed the toll supervisors to search any bags that the toll collectors were bringing into the booths with them, to be sure no contraband items were in the bags.
According to Brandwein's certification, he was plaintiff's supervisor, and he was following Trimarchi's written instructions when he approached plaintiff at the beginning of her midnight shift and asked her to let him search her tote bag. After vociferously objecting, plaintiff let Brandwein look through her bag. Brandwein denied plaintiff's contention that he made her dump out the contents of the bag on the floor. He also stated that because plaintiff had made such a fuss about the search, he decided not to search anyone else's bag until he had a chance to speak to Trimarchi, who was not available until the next day.
Plaintiff filed a brief in opposition to the summary judgment motion. However, instead of supporting the opposition with legally competent evidence, plaintiff's counsel attached to the back of his brief an un-authenticated set of handwritten sheets, purporting to be a question-and-answer interview with Carol Schneider, one of plaintiff's co-workers. The document did not indicate who was asking the questions, or whether the interviewer worked for the Port Authority, for plaintiff's counsel, or for someone else. Nor was there any indication as to who wrote down the questions and answers. While the brief referred to the document as an "affidavit" it did not contain the legally-required language either of an affidavit or a certification. R. 1:4-4. According to the document, Schneider worked on the four to midnight shift and witnessed the incident in which plaintiff's bag was searched. Schneider contended that on the midnight shift, plaintiff's two black male co-workers' bags were not searched. Schneider, a white woman, also indicated that her own bag was not searched, but she contended that no one on her shift was searched because the employees on her shift had complained about the policy to the union.
The motion judge granted summary judgment on the grounds that the LAD did not apply to the Port Authority because it was a bi-state agency. He also concluded that plaintiff was required by the union contract to exhaust contractual grievance procedures before filing suit under the LAD and before filing her contract claims concerning the denial of work opportunities that allegedly occurred in 2001.
Our review of the trial court's grant of summary judgment is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We employ the same standard the trial court uses in judging the motion, considering whether there are material facts in dispute, and if not, whether the undisputed facts, viewed in the light most favorable to the non-moving party, entitles the moving party to judgment as a matter of law. Id. at 167; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In this case, there were no material facts in dispute.
Defendants supported their motion with legally competent evidence sufficient to establish that Brandwein did not humiliate plaintiff by making her dump out her personal items in front of co-workers, and establishing that he acted for a legitimate non-discriminatory reason. Plaintiff did not respond with competent evidence. The handwritten interview of Schneider was not an affidavit and therefore could not be considered as creating a material factual dispute. Further, as we have previously held, merely stapling a document to the back of a brief is not sufficient to authenticate the document. See Celino v. Gen. Accident Ins., 211 N.J. Super. 538, 544 (App. Div. l986). Hence, Brandwein's and Trimarchi's affidavits were undisputed for purposes of the motion.
Plaintiff attempted to rely on Schneider's statement to prove that similarly situated black male employees were treated differently than plaintiff. Since the statement was not legally competent evidence, plaintiff failed to present either a prima facie case of discrimination or proof that defendant's explanation was a pretext for discrimination. Summary judgment was properly granted dismissing her LAD claim. See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449-50 (2005); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 31-32 (1981) (addressing the order of proof in a LAD case). Because the LAD claim was properly dismissed, plaintiff likewise could not sustain a claim for emotional distress damages premised on a LAD violation.
We agree with the motion judge that plaintiff's claim for denial of promotional and overtime opportunities was properly dismissed. To the extent the claim was based on the LAD, it was filed beyond the two-year LAD statute of limitations. Montells v. Haynes, 133 N.J. 282, 286 (1993). If the claim was premised on the union contract, plaintiff was required to pursue her grievance remedies under that agreement.*fn2