May 13, 2009
LOUISE GADBOIS, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY, NEW JERSEY STATE POLICE, MAJOR DREW LIEB AND WILLIAM LUNDON, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, plaintiff alleged she was denied $3953.66 per year in additional salary for that time during which her promotion was wrongfully withheld.
In her deposition, Barbara Brettell, an Administrative Assistant in the SOS, testified that she submitted paperwork in the fall of 2004 to have plaintiff promoted to the Secretary III position, but was told that there was a job freeze and promotional freeze and no action could be taken. Brettel said that only currently-funded positions presented promotional opportunities, explaining,
[I]f you had a position that had a funding source that did not require additional funding and that position was vacant, you would be able to promote someone into it. If you had a person who was promotable but there was no position to promote them into, you had to create it and you had to identify a funding source and if there was no funding to be identified, then it became an obstacle to having that person get that position.
Brettel felt that plaintiff should be promoted, but the promotional freeze was never lifted during 2004 and 2005. She also testified that defendants tried to accommodate plaintiff by permitting her to transfer to the Canine Unit at Fort Dix, which was closer to plaintiff's home and less of a commute. Brettel claimed that plaintiff's ultimate promotion, upon her transfer in February 2006, came about because the employee who previously held the title of Secretary III in that unit had passed away.
Brettel also testified that plaintiff was upset about not being able to work flexible hours. However, she noted that most of plaintiff's complaints about her work life at the Division of State Police derived from the fact that Edgewater Park was "a different world." More people worked at the Division offices, and more people could see what went on regarding plaintiff's arrival and departure from the office. Brettel acknowledged that plaintiff was upset when she was told she would have to use personal time if she left work early to avoid traffic.
Much of Brettel's testimony regarding the fiscal constraints within the State Police was corroborated by Lieb, who, in November 2005, became commanding officer of SOS. Lieb testified that there was no money to fund the position for plaintiff during the time period in question. He tried for over one year, going "back and forth with [Human Resources]" to find a funding source, but was unable.
Lundon was the lieutenant supervising the Bomb Unit and had worked with plaintiff at the Edgewater Park barracks. He testified that he tried to accommodate plaintiff's request regarding her working hours, and "gave her great latitude." But, after the move to Division headquarters, there was "a large amount of civilians that [we]re there" and "[i]t was hard to get away with doing this." He cautioned plaintiff about coming to work late, and asked her to make an effort to be more timely. Lundon was not involved in the problems associated with plaintiff's promotion.
Defendants moved for summary judgment, arguing that plaintiff failed to establish a prima facie case because she "failed to produce evidence that indicate[d]  she [wa]s handicapped[.]" Alternatively, defendants contended that plaintiff had failed to demonstrate that "but for" the discrimination allegedly based upon her handicap, "she would have been promoted in a more timely fashion." Instead, defendants contended the proffered reason for the delay, i.e., fiscal constraints, was legitimate and not pretextual.
Plaintiff countered by arguing that defendants knew of her physical condition, failed to promote her, and began to retaliate against her in the workplace based upon her medical situation. She further contended that defendants' excuse that fiscal conditions restrained their ability to promote her was a pretext.
The motion judge thoroughly analyzed the factual record and relevant case law in a comprehensive oral opinion. The judge applied summary judgment standards, i.e., resolved factual disputes in favor of plaintiff, and concluded she had established that she suffered from a medical disability, though he had some difficulty determining that she suffered an "adverse employment action" because defendants tried to accommodate her and eventually she was promoted. However, the judge continued his analysis and found defendants had demonstrated "a legitimate good faith reason" for their actions. Lastly, the judge concluded that plaintiff had failed to adduce any evidence that defendants' stated reasons were a pretext, noting "[t]here's nothing in the record whatsoever to demonstrate to the Court that there was ever any reliance by the . . . defendants on plaintiff's condition in making any decision with regard to [her] employment." He granted summary judgment and entered the order under review.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts; we then decide whether the motion judge's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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. [Id. at 540.]
In analyzing claims brought under the LAD, "[o]ur Supreme Court has adopted the three-step burden-shifting analysis first developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973)." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 166 (App. Div. 2005).
[T]he court first determines whether plaintiff has produced sufficient evidence to demonstrate the elements of his or her prima facie case. If so, then the burden shifts to the employer to produce evidence of "legitimate, non-discriminatory reasons" that support its employment actions. Once the employer has done so, the burden shifts back to plaintiff to prove that the stated reasons were a pretext for discrimination. [Ibid. (internal citations omitted).]
To establish a prima facie case of discrimination under the LAD based upon a disability, plaintiff must demonstrate "(1) [she] was handicapped or disabled within the meaning of the statute; (2) [she] was qualified to perform the essential functions of the position of employment, with or without accommodation; (3) [she] suffered an adverse employment action because of the handicap or disability; and (4) the employer sought another to perform the same work after [she] had been removed from the position." Victor v. State, 401 N.J. Super. 596, 609 (App. Div. 2008). Because of the variety of adverse employment actions that may occur short of termination, we have said, "The appropriate fourth element of a plaintiff's prima facie case requires a showing that the challenged employment decision (i.e., failure to hire, failure to promote, wrongful discharge) took place under circumstances that give rise to an inference of unlawful discrimination." Williams v. Pemberton Twp. Public Schools, 323 N.J. Super. 490, 502 (App. Div. 1999).
We concede, as did the judge, that for summary judgment purposes plaintiff established that she suffered from a disability, pulmonary lymphoma, and that she was able to perform the functions of her position with or without a reasonable accommodation. Although the motion judge questioned the sufficiency of plaintiff's proofs regarding an adverse employment action, we have no hesitancy in concluding that to the extent plaintiff failed to receive a promotion in a timely fashion, she suffered an adverse employment action.
In attempting to meet the fourth prong of the test, plaintiff makes two arguments that the withholding of her promotion "came under suspicious circumstances suggesting discrimination." First, she claims that "there was no hint of any problem with" her promotion until she revealed the seriousness of her medical condition. Second, the defendants failed to produce any documents demonstrating they had attempted to effectuate plaintiff's promotion when they claimed.
However, the very first email from Bradley indicates that many other factors were under consideration when the significant reorganization of the State Police was occurring. The email further implied that plaintiff's promotion would be easily accomplished if there were personnel openings that she "could just be moved into." The motion judge took note of the oftentimes slow pace at which government agencies move, encumbered as they frequently are with personnel regulations and other bureaucratic impediments. Defendants' failure to explicitly tell plaintiff that her promotion depended upon the availability of funds or open personnel positions, coupled with their decision to ultimately explain to plaintiff why she had not been promoted, is not proof of intentional discrimination. Regarding the lack of documentary proof of defendants' attempts to promote plaintiff in the fall of 2004, there was sworn testimony from Lieb and Brettel that such efforts were persistently ongoing. Moreover, in January 2005, there was written documentation that the request, whenever it had been made, was denied for fiscal reasons, as defendants have consistently claimed.
Assuming arguendo, however, that plaintiff established a prima facie case of discrimination, we agree with the motion judge that defendants advanced a legitimate non-discriminatory reason for the delay in plaintiff's promotion. The burden then shifted to plaintiff to raise a material dispute as to whether that excuse was true, or simply a pretext for unlawful, intentional discrimination based upon her disability. In this regard, we concur substantially with the motion judge's reasoning that plaintiff failed to produce sufficient evidence to create such a disputed fact.
Once a defendant in a LAD case has produced sufficient evidence of a legitimate, non-discriminatory reason for its actions,
[P]laintiff does not qualify for a jury trial unless he or she can point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. [Zive v. Stanley Roberts, Inc., 182 N.J. 436, 455-56 (2005) (internal quotations omitted).]
"To prove pretext, however, a plaintiff must do more than simply show that the employer's [proffered legitimate, non-discriminatory] reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent." Viscik v. Fowler Equip. Co. Inc., 173 N.J. 1, 14 (2002).
Plaintiff points to Bradley's alleged statement to her denying that there was any hiring or promotion freeze in effect at the time she was initially being considered for a promotion. She claims this is admissible evidence under N.J.R.E. 803(b)(4), and if believed by the factfinder, proves defendants' claims of fiscal constraints were pretextual. We disagree.
First, this alleged conversation was never disclosed in plaintiff's deposition. Instead, it was disclosed for the first time in a certification plaintiff filed in opposition to defendants' summary judgment motion. However, even if the conversation actually occurred, we conclude that in light of the other uncontroverted testimony from those directly involved, i.e., Lieb and Brettel, it was insufficient to raise a material dispute of fact. Clearly people were hired by the State Police during this time frame as demonstrated by job postings that are part of the record. So, Bradley's claim that there was not a job freeze in effect may be entirely accurate, but it does little to defeat defendants' claims of fiscal constraints prohibiting this specific plaintiff's promotion. Brettel explained the situation in detail, noting that absent a specific funding stream, vacancies had to arise before positions could be filled. In short, Bradley's hearsay statement to plaintiff is insufficient proof to raise an inference that defendants' excuses were a pretext, shrouding their intended discrimination based upon plaintiff's disability with false claims of fiscal constraints.
Plaintiff has not submitted any argument in her brief regarding the dismissal of the Constitutional claims raised in her complaint. We therefore deem them to be waived. Sciarrotta v. Global Spectrum, 392 N.J. Super. 403, 405 (App. Div. 2007), rev'd. on other grounds, 194 N.J. 345 (2008); Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2009).