On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1460-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges Lihotz and Messano.
Plaintiff Louise A. Gadbois appeals from the February 1, 2008 order granting defendants, the State of New Jersey, the Division of State Police, Drew Lieb, and William Lundon (collectively defendants), summary judgment and dismissing her complaint. She contends the trial judge misapplied the appropriate standards governing summary judgment, Rule 4:46-2(C), because she had produced sufficient evidence to demonstrate 1) a prima facie violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; and 2) that defendants' articulated reason for not promoting her was a pretext.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
On February 6, 2006, plaintiff filed her complaint alleging that defendants deprived plaintiff of her rights with respect to her "compensation, terms, conditions, and privileges of employment" because of her disability, in violation of N.J.S.A. 10:5-12. In a second count, plaintiff alleged defendants violated her "rights to due process and equal protection under Article I, paragraph 1" of the State Constitution.
The motion record revealed that plaintiff worked as a civilian secretarial employee of the State Police since 1988, first assigned to the Arson/Bomb Unit in the Edgewater Park barracks. She was subsequently promoted in 1989 and 1997, obtaining the title of "Principal Clerk Typist." In 2004, the Edgewater facility was to close, its operations being transferred to the Special Operations Section (SOS). Plaintiff was presented with a series of options. She decided to accept a position as secretary to Lieutenant Oakley who was to become "Bureau Chief of the Technical Response Bureau" in SOS, the assignment being a promotion for plaintiff.
In an April 14, 2004 email to Adele Bradley, an administrative assistant in the Office of the Deputy Superintendent of Homeland Security, plaintiff explained that she "decided to work for [Oakley] if [it] [wa]s possible." She expressed regrets in leaving her assignment with the Arson/Bomb Unit, but said she "may as well take the promotion if it [wa]s offered to [her]." Bradley responded by email, advising plaintiff that Oakley "would be very happy to have [her]." Acknowledging that plaintiff's move to "division" would be a promotion, Bradley told plaintiff she had spoken to a number of people about moving her up to "Bureau level," and that they thought this was "a good idea." Bradley also noted, however, that her contact at Human Resources, Debbie Hanko, wanted her "to wait for another week or so" because organizational changes were being made and they "might have some Secretary III vacancies [they] could just move [her] into." In mid-May, plaintiff was transferred and testified at deposition that Oakley told her "that they would do whatever paperwork they needed to do" and she "would get the title." Plaintiff also testified that Oakley approved a change of her work hours to accommodate her anxiety caused by "rush hour traffic."
Plaintiff had experienced health problems over the years, and shortly after the transfer, a mass was discovered on her lung. Surgery was required, and plaintiff discussed the situation with Oakley prior to taking sick leave from August 1 to December 14, 2004. Plaintiff testified that before she commenced her leave, Oakley told her for the first time that there might be some "fiscal" problems with her promotion, and her position might need to be "reclassif[ied]."
When she returned to work in December, plaintiff noted that the clerical staff had increased in size and new hires were being made. In January 2005, plaintiff was given a copy of an interoffice memo from the Chief of Human Resources to the commander of plaintiff's division. It indicated that "[t]he request to reclassify" a position "for [plaintiff]" was "returned without action due to budgetary restraints." When she made inquiries, plaintiff was told the request was originally made in October 2004, though no documentation as to this existed. Plaintiff also testified at her deposition that she spoke to Bradley who told her that there was no "job freeze" that would have prevented submission of the request for reclassification, or led to its denial. Plaintiff claimed that promotional opportunities arose while she was on sick leave, and she was not provided notice of them. Moreover, upon her return, plaintiff was required to move from her office into a secretarial pool and she felt her co-workers and supervisors displayed a change in their attitudes toward her. In March 2005, plaintiff was again passed over when another promotional opportunity arose.
In April 2005, plaintiff was diagnosed with lung cancer requiring her to attend chemotherapy sessions resulting in her absence from work two days per week. In August, having still not been promoted, plaintiff contacted her union and, through their efforts, a "Position Classification Questionnaire" was prepared on plaintiff's behalf, requiring a full review of her duties in relation to her job description.*fn1 In December, the request for reclassification of plaintiff's position was approved.
Plaintiff alleges that while this was going on, her superiors began to retaliate against her. She was reported as being late for work, defendant Lundon wrongly accused her of "breaking confidentiality" and "losing a file," and she was told by co-workers that defendant Lieb had plaintiff on his "hit list." Plaintiff took sick leave for stress in January 2006, and, in February, transferred to a new unit and "received her promotion." Based upon the fiscal impact analysis done by the State Police, ...