On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6296-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
Plaintiff Cheryl M. Goldie appeals the July 25, 2008 award of summary judgment dismissing her complaint against defendants Melissa Jones and Healthstar Advertising, Inc. We affirm.
Plaintiff filed her complaint pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, on August 29, 2005. She alleged that she was wrongfully terminated by defendants because of a psychological disability, and that they "actively discriminated against her based on her status as a mentally disabled woman." The sole issue remaining when the summary judgment motion was decided was whether plaintiff had an actionable claim for retaliatory discharge. At that juncture, the parties had completed extensive discovery, including depositions.
Plaintiff was hired as a receptionist by defendant Healthstar's predecessor on January 6, 2003. Following a corporate merger in July 2003, plaintiff's job title was changed to "office assistant." Plaintiff's immediate supervisor was defendant Jones.
Prior to the incident that plaintiff asserts led to the unlawful termination, there were documented difficulties with plaintiff's employment, including excessive absences. For example, on June 20, 2003, Jones sent plaintiff a memo advising that since her date of hire in January 2003, plaintiff had been absent 11.75 days, and that until November 2003, any further leave days would be unpaid. The following year plaintiff used all of her paid leave by the month of July 2004. Jones and Patty Brock, Senior Vice President of Human Resources for defendant Healthstar, actually met with her regarding these absences.
On September 25, 2003, Jones rated plaintiff's job performance at an average of 4.25 out of 5 possible points and favorably described plaintiff's work. On January 13, 2004, when Jones conducted a second employee review, the rating dropped to four out of five. The comments were generally favorable, but Jones indicated that plaintiff needed improvement in certain areas and would be attending a seminar in February 2004 to "improve on her organizational skills and daily clerical functions."
On Tuesday, July 20, 2004, Noreen Gibbons, the office receptionist, and Jones invited plaintiff to lunch. During that luncheon, Gibbons and Jones probed plaintiff about her state of mind, asking, according to plaintiff's deposition, "if everything was okay." They told her that she had been "acting different lately" and "just not acting right." Plaintiff explained that a recently diagnosed physical illness may have caused differences in her behavior and asked if her job performance was being affected. Jones replied that plaintiff had not been fulfilling minor responsibilities around the office, including emptying the dishwasher and tidying the office kitchen.
Plaintiff had previously revealed to her co-workers various details about her difficult family life and past mental health issues. When the luncheon ended, Jones told plaintiff that she should enroll in therapy. Plaintiff reluctantly agreed, and also agreed to allow Jones to find her a therapist. Plaintiff claimed that she cried during the conversation, and finally assented to counseling only because she found the discussion so disturbing. Plaintiff acknowledged that Jones was attempting to help her, but also believed that the conversation should never have occurred as it was an intrusion into her personal affairs and was too upsetting.
The following day, plaintiff did not go to work because she wanted to avoid scheduling a therapy session with the support group that Jones had recommended. Later that day, Jones actually went to plaintiff's home, banging on the door and calling her name. Plaintiff did not answer.
On Thursday, July 22, plaintiff returned to work. Jones informed her that she had made an appointment for plaintiff with a support group. When plaintiff responded, "I don't want to do this," Jones turned and walked away. At noon, plaintiff went to Brock's office and showed her the appointment notes from Jones. She said that although she understood that Jones was trying to help her, she nonetheless wanted Jones to back off. Brock assured plaintiff that she had no obligation to enroll in counseling and scheduled a Friday morning meeting with plaintiff and Jones.
During the meeting, Jones told plaintiff that she would respect her privacy and no longer "interfere with [her] personal life." From that day forward, Jones kept notes of plaintiff's daily activities, thinking that Brock had instructed her to do so. When deposed, Brock later explained that she instructed Jones to take notes about only the Friday meeting, as she was concerned that several statements ...