August 24, 2010
DIANE KIRWAN PATTERSON, PLAINTIFF-APPELLANT,
JAMES B. CANNON, COUNTY OF GLOUCESTER, GLOUCESTER COUNTY DEMOCRATIC PARTY, STEPHEN M. SWEENEY, DEBRA SELLITTO, LISA WESEN-MORINA, CHAD BRUNER*FN1, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1054-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 19, 2010
Before Judges Payne, Waugh and Fasciale.
Plaintiff appeals from the trial court's order of summary judgment dismissing plaintiff's claims under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42, and the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. We affirm the trial court's order dismissing plaintiff's NJLAD claim. However, we find a potentially triable jury issue as to a portion of plaintiff's NJCRA claim, and therefore reverse the trial court's order and remand for further proceedings.
Plaintiff also appeals the trial court's decision to sanction plaintiff for frivolous pleading and award to defendants' costs and attorney's fees under R. 1:4-8 and N.J.S.A. 2A:15-59.1. In light of defendants' failure to strictly comply with the notice requirements of R. 1:4-8(b)(1), we reverse the trial court's entry of sanctions under R. 1:4-8 and N.J.S.A. 2A:15-59.1. However, we remand for a determination of whether to award defendants reasonable attorney fees under N.J.S.A. 10:5-27.1.
The facts, allegations and relevant procedural history underlying plaintiff's appeal are lengthy. Because we are reviewing a grant of summary judgment, we review such facts and allegations in the light most favorable to the non-moving party, i.e., plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)' Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) (applying the same standard to our appellate review), certif. denied, 154 N.J. 608 (1998).
Plaintiff began her employment with the County of Gloucester in 1974. In 1986, plaintiff began working as a part-time volunteer for the Democratic Party. In the early 1990s, plaintiff met Stephen Sweeney, who was then a County Freeholder. Plaintiff alleged that Sweeney sexually harassed her. Plaintiff has since dismissed these claims, but we review them briefly because they relate to defendants' initially successful motion for sanctions.
By plaintiff's account, Sweeney made three distinct sexual remarks to plaintiff. Standing at the bar during a 1998 political fundraiser, Sweeney allegedly remarked: "Dianne, get naked for me." Two years later, Sweeney indicated that it would be nice to get into a hotel Jacuzzi with plaintiff. Plaintiff responded that she had no bathing suit, to which Sweeney quipped: "You wouldn't need a bathing suit with me." Lastly, when plaintiff asked if Sweeney was being kept up after he yawned during a nighttime political meeting, Sweeney stated that plaintiff "could keep him up any time." Plaintiff rejected Sweeny's salacious invitations.
As a result, Sweeney allegedly "became very distant and quite rude" between 2003 and 2004. On certain occasions, Sweeney allegedly grabbed materials from plaintiff's hands and refused to allow plaintiff to participate in political meetings. Plaintiff even began to notice some of Sweeney's staff adopt the same attitude. After plaintiff became a Democratic party employee in 2005, Sweeney accused her of disloyalty and of misappropriating confidential information.
Plaintiff was dismissed from her position with the Democratic Party in 2006. Based on conversations with superiors at the party headquarters, plaintiff allegedly learned that Sweeney procured her dismissal in retaliation for plaintiff's romantic rejections and for her failure to support Sweeney's candidate for sheriff. Plaintiff alleges that Sweeney demanded that plaintiff be fired from her County position as well.
In 1989, plaintiff began full-time work as a secretary to former Freeholder Stephen Salvatore. In the same year, plaintiff met defendant James B. Cannon, the County Personnel Director. Plaintiff, who was going through a divorce at the time, confided in Cannon about her marital problems, her brother's and father's alcoholism, and drug-related problems in her family. Cannon helped plaintiff paint and move into her new condominium, establish her son's college fund, and obtain a job transfer.
In 1990, Cannon attended a Christmas party at plaintiff's home. On a separate occasion during the 1990 Christmas season, plaintiff and Cannon attended a party and drank together. Plaintiff and Cannon returned from this party to plaintiff's home, where Cannon expressed his romantic interest in plaintiff and kissed her. The kiss allegedly made plaintiff feel uncomfortable, and so she asked Cannon to leave her home.
However, their relationship continued such that plaintiff and Cannon would analogize themselves to the main characters in the romantic comedy of the 1980s, "When Harry Met Sally." Plaintiff and Cannon continued attending social functions together and exchanging gifts through 1991. In 1992, plaintiff and her friend took Cannon out to celebrate Cannon's birthday. In the same year, Cannon accompanied plaintiff and her son on a one-day trip to Washington, D.C. And in 1993, plaintiff and Cannon left a Democratic Party event for a local bar, where plaintiff kissed Cannon.
Nevertheless, plaintiff alleges that Cannon sexually harassed her from 1991 to 1992. Cannon asked plaintiff on dates roughly fifteen times, despite plaintiff declining each invitation. Cannon falsely led plaintiff's co-workers to believe that plaintiff and Cannon were dating. On one occasion, Cannon followed plaintiff in his car to her apartment complex. Lastly, Cannon continuously sent flowers, cards, "inspirational booklets," and notes.
Regarding the cards and flowers, plaintiff acknowledged that these items were only offensive as a result of their multiplicity, and not because they were sexual in nature. Although plaintiff asked Cannon to stop sending her flowers after receiving the first bouquet, she never refused or returned them. Cannon stopped sending flowers in 1991 and stopped sending cards in 1992.
In 1993, Cannon discovered that plaintiff was dating the man whom plaintiff would later marry. Cannon and plaintiff argued on the phone until plaintiff hung up. On the very last time they were together in 1993, Cannon told plaintiff that he would never forgive her. This precipitated a "falling out" that lasted until 2002, punctuated only by semi-annual, work-related contact.
In 2002, plaintiff and Cannon saw each other in pubic, prompting the two to speak personally for the first time since 1993. Plaintiff offered to listen if Cannon needed someone to talk to about his recent arrest for driving while under the influence of alcohol. Cannon hugged plaintiff and said that that he still loved her.
Despite this apparent make-up, plaintiff alleges that Cannon held a grudge and retaliated against her on several different occasions during her employment with the County. When plaintiff's father passed away in 1993, two days went by before his body was discovered. Because plaintiff's father was also a County employee, Cannon told plaintiff that her father's estate would be charged for two days of vacation plus the uniform plaintiff's father wore when he passed away. After plaintiff discussed this with Freeholder Salvatore, Cannon instructed the department to issue full payment, and the estate was not charged for the uniform.
Once in 1992 and once again in 1993, plaintiff requested reimbursement for courses that she attended at Gloucester County Community College. Cannon give plaintiff "a hard time accepting these classes." This prompted plaintiff to ask Freeholder Salvatore for assistance. Cannon ultimately approved all of the courses and the reimbursement without further incident.
In 1994, plaintiff alerted Cannon that her personnel file incorrectly listed her first working year as 1978, whereas the correct year was 1974. In 2000, plaintiff discovered that Cannon never corrected the error. Plaintiff contacted the personnel department and the error was corrected without any resulting financial harm.
In 1998, plaintiff was promoted to Division Head of the Community Development Block Grant (CDBG) Program within the Department of Economic Development. In 2002, plaintiff decided to take advantage of the opportunity to work a compressed schedule, i.e., four ten-hour days per week. This option was afforded to all union employees, which included plaintiff.
However, plaintiff met objections from Cannon and former defendant Chad Bruner, the Deputy County Administrator. Cannon and Bruner did not want plaintiff, a division head, to work a compressed schedule. However, Cannon ultimately approved the request. Plaintiff ceased working a compressed schedule only when the option was eliminated for the entire division.
Lastly, plaintiff alleged that Cannon retaliated against her by suspending her for thirty-two days, without pay, for misconduct relating to a CDBG conference in Atlantic City. This last example of alleged retaliation by Cannon is perhaps best explained in the context of plaintiff's allegations against her former supervisor, defendant Lisa Wesen-Morina, the Director of Economic Development.
Morina assumed that post and became plaintiff's supervisor in July 2004. Plaintiff alleges that Morina retaliated against plaintiff because Morina did not approve of the CDBG program. Plaintiff also alleges that Morina discriminated against plaintiff, who was the only female division head. Such retaliation and discrimination took the form of hostile treatment that began one to two months after Morina began her position.
Around this time, Morina began yelling, screaming, "barging into my [plaintiff's] office," "pounding her hand and fists," "not being discreet," and "flying off the handle." Morina humiliated plaintiff by doing this in front of plaintiff's staff. However, plaintiff witnessed Morina display the same hostility towards all others in plaintiff's division - including plaintiff's staff. Morina was neither less hostile nor more friendly towards those other individuals.
During their first meeting together, Morina told plaintiff that she should be "ashamed" for "diming the County" by receiving compensatory time and travel reimbursement for attending a real estate course at Gloucester County Community College. Plaintiff quelled this particular dispute by informing Morina that Cannon had approved the courses. Morina soon moved on to accuse plaintiff of throwing Director Bob Broughton "under the bus" by not "keeping him in the loop of what was going on in CDBG."
Plaintiff believed that Morina's accusations of plaintiff "diming" the County and crossing Broughton were the direct result of Cannon and Bruner supplying Morina with "information" about plaintiff. When plaintiff mentioned Bruner, Morina revealed that Bruner instructed Morina to check attendance and "come down hard" on those abusing compensation time. Morina therefore also criticized plaintiff for accumulating too much compensation time, a practice that Morina felt did not "look good" for a division head.
Plaintiff admits, however, that she was not the only one criticized for accumulation of compensation hours. She also admits that Bruner's instruction to "come down hard" was not directed at plaintiff specifically. Nonetheless, plaintiff contends, all of her compensation time was earned and approved.
On another occasion, Morina wrote plaintiff an e-mail indicating that Freeholder Brigandi approached Morina and wanted to know about a board on which plaintiff wanted to serve. Morina wrote that she was embarrassed on plaintiff's behalf, given plaintiff's failure to follow proper procedure and seek Morina's permission to serve. It appears that this was a miscommunication with no fault attributable to plaintiff.
Although plaintiff considered the e-mail a reprimand in and of itself, Morina approved the position and never undertook formal disciplinary action.
On one occasion, Morina accused plaintiff of asking her staff about their voting patterns and, on another, of having political conversations at work. Plaintiff denied the first accusation and admitted the second, but claimed to be unaware that political discussions violated any particular policy. Morina nevertheless instructed plaintiff to avoid asking about voting patterns. Morina also issued a reprimand for the political discussions. Plaintiff indicated that other employees had similar political conversations without receiving reprimands.
Plaintiff's relationship with Morina briefly improved with the help of a union representative in 2005. This period was marked by such niceties as Morina complimenting plaintiff on her job. Yet, in 2006, Morina became hostile towards plaintiff once again. This period culminated in the aforementioned thirty-twoday suspension, without pay, resulting from plaintiff's attendance at a CDBG conference in Atlantic City.
Every year since 2000, plaintiff and her staff attended this conference for two days in June. On April 20, 2006, plaintiff sent Morina a written memorandum requesting permission to return to the conference that June. That memo stated:
I have attached the brochure for the upcoming CDBG conference in Atlantic City. Our annual dinner will be held on Wednesday night, June 7th and the conference begins at 9 am on Thursday, June 8th. I would like to request your approval to have Joyce, Victor, Tiffany, Helen, and Kelly attend the one-day conference on Thursday....
This conference expense is in our FY 2005 budget conference item. Other than the conference expense, the only other expense will be tolls. If approved to attend we will reserve County cars. Staff members are aware that if they prefer to use their own vehicles they will not be reimbursed for mileage. In addition, if staff members wish to attend they do so on their own time. All meals are included with the registration fee.
At the bottom of the memo is a large, handwritten "ok." Plaintiff contends that this is Morina's handwriting. Morina would later accuse plaintiff of forging the written "ok."
At some point in the three weeks following this memo, plaintiff was contacted by Mike Zumpino, President of Triad Associates ("Triad"), a private County vendor advising on the CDBG project. Triad had previously reserved hotel rooms for County employees at the CDBG conference; Zumpino asked if he should do so again. Plaintiff said "yes" and faxed Zumpino's secretary a request for four rooms - one in plaintiff's name, and the other three in staff members' names. All charges were placed on Zumpino's credit card.
On June 6, 2006, the day before the conference, plaintiff signed a loaner vehicle request form. This form authorized plaintiff and her secretary, Helen Cipolla, to use a County car on June 7 and June 8. Plaintiff signed this form in violation of a County policy allowing only a department head (Morina, not plaintiff) to provide such an authorization. Plaintiff claims she was unaware of this policy when she signed out the car.
Yet plaintiff admits to having signed at least fifteen such forms. The signature box clearly reads "Department Head Signature." Moreover, Morina sent plaintiff an e-mail after one of plaintiff's staff members improperly signed out a County car. This e-mail explained the proper procedures for obtaining such an authorization. Plaintiff responded to this e-mail, promising Morina that "we won't let this happen again."
Regardless, plaintiff and Cipolla drove the County car to the conference. They and other staff members attended the dinner. Afterwards, Cipolla drove the car back to Gloucester County, leaving plaintiff at the hotel. Plaintiff and her staff used the four rooms that were placed on Zumpino's credit card. They attended the conference the next day. Plaintiff planned to meet with her husband after the Thursday conference, spend the night together, and leave the next day after the Friday conference.
However, plaintiff received an angry phone call from Morina during the Thursday conference. Upon Morina's inquiry, plaintiff admitted that she signed out a County car and that she allowed Zumpino to pay for the four rooms. After informing plaintiff that this was illegal - and calling plaintiff "deceitful" - Morina demanded that plaintiff and her staff immediately pay for their own rooms and leave. Plaintiff and her staff switched their room charges to their own credit cards. However, plaintiff waited for her husband, stayed the night, and left the next morning without attending the Friday conference.
Plaintiff attended work on Friday, June 9, 2006, without speaking to Morina. Plaintiff's staff informed her that on the following Monday, June 12, 2006, five of the seven attending staff members were questioned about their involvement in allowing Zumpino to pay for their hotel rooms. Plaintiff indicates that one of the attending staff members, Bruner's niece, was never questioned.
Plaintiff herself was called to Morina's office for questioning the next day, Tuesday, June 13, 2006. Plaintiff entered Morina's office to find Bruner and Cannon also present. All three questioned plaintiff regarding the conference and promised future discipline. Cannon in particular told plaintiff she would now be required to work a five-day work week rather than a four-day compressed week, and that she would likely receive time off without pay. Plaintiff recalls being subjected to Morina's anger and hostile treatment throughout the rest of the week.
On June 20, 2006, plaintiff fell ill with pneumonia and remained at home. Two days later, plaintiff received a letter from Cannon setting forth Cannon's official findings and the resulting penalties. Cannon noted that he had wished to discuss the matter once again in person, "but you have been unavailable." Cannon found plaintiff guilty of the following charges:
Count 1 - I feel you are guilty of conduct unbecoming an employee in the public sector by staying in a hotel room that was paid for by Triad Associates and encouraging others to do the same. As you know, Triad is a company that has a $50,000 per year contract with the County. Apparently, this is the 4th time this has happened. You have also confirmed this to be true. For this infraction you will be suspended without pay for 20 days.
Count 2 - At your hearing you produced a document with "ok" written at the bottom of it. Based on further research this document was not written by Lisa Morina and was submitted fraudulently. For this infraction you will be suspended for 3 days without pay.
Count 3 - This Count has been levied against you for insubordination. You have been counseled and told previously that you must get your department head's signature in order to borrow a car from the Motor Pool.
In fact the county policy requires this.
However, in the previous month you have gone to the Motor Pool and signed out four cars without your department head's knowledge or permission. For this infraction you will be suspended for 3 days without pay.
Count 4 - You are being charged with neglect of duty for failing to notify your department of the details of the training session, the transportation of employees to the training and that employees would be staying overnight. There is a county policy on this and you ignored it. For this infraction you will be suspended for 3 days without pay.
Count 5 - The final charge is incompetence.
This charge stems from the fact that you violated employees' rights under the Union Contract with the CWA # 1085 by telling them they would not be eligible for travel expenses if they took their own transportation to a training session. For this you will be suspended for 3 days without pay.
The total thirty-two days of suspension would run from June 25, 2006 to August 10, 2006. Plaintiff's matter was referred to the Gloucester County Prosecutor's Office. No charges were filed. Three of plaintiff's staff members received one-day suspensions for accepting and/or soliciting hotel rooms from Triad. Richard Morely, a department head in charge of the County's motor pool, was issued a written reprimand in connection with plaintiff's use of the County car.
Plaintiff's union filed a grievance with the County on June 23, 2006. Plaintiff cancelled the hearing date due to continuing health issues, but never rescheduled. Plaintiff also cancelled two meetings with Cannon - one in July 2006 and one in August 2006 - without rescheduling. Plaintiff claims Cannon told her union representative that he would fire plaintiff if she insisted on further challenging the suspension. Further, she alleges that Cannon insisted that the County would not negotiate the suspension, and that plaintiff "deserved everything she got and probably more."
A story of plaintiff's suspension appeared in a local newspaper in late July 2006. On August 2, plaintiff learned that the County had posted a notice that plaintiff's position was open for applications, with a closing date of August 14, 2006. Plaintiff further alleges that when she returned from her suspension on August 10, 2006, she found that Morina had assigned plaintiff's duties to a clerical employee with much less experience with the CDBG program. Plaintiff also found that some of her office equipment had been replaced with outdated models, and some of her office items had been replaced with items of lesser quality. Certain files had either disappeared or were inspected. Plaintiff was informed that, prior to her return, Morina's staff entered plaintiff's office, removed certain items, and brought them to Morina.
Shortly after returning to work in August 2006, plaintiff began a medical leave of absence. Plaintiff did not return to work, and instead filed notice, on June 6, 2007, of her intent to retire from the County as of August 1, 2007. While still on medical leave, plaintiff filed her complaint on October 3, 2006. Her original complaint named Cannon, Sweeney, Morina, and Bruner as defendants. Plaintiff also named the Gloucester County Democratic Party, the County of Gloucester, and Debra Sellitto, a Gloucester County spokesperson allegedly responsible for publishing a "knowingly false retaliatory statement."
On November 16, 2006, plaintiff discussed her complaint in an e-mail to a single recipient. Plaintiff wrote:
Do you think the Rs [Republicans] will use the info published [in plaintiff's complaint] in their campaign against SS [Sweeney]? The sexual harassment thing will probably be thrown out because it was so long ago; however, it is the basis for everything else that happened to me and what I'm fighting for. They probably crapped their pants when they received my suit and saw whom I hired as my attorney. They ALL under estimated me!!
On November 30, 2006, plaintiff sent the following e-mail message to the same recipient:
Well, I made both the GC [Gloucester County]
Times and Courier again today. My phone rang off the hook today with many comments on how stupid GC really is. I'm faxing a copy of the articles to my guy and I know he'll get a kick out of it. They actually admitted that employees never had to report when they received dinner, flowers or a hotel room in AC. Well then, why was I treated so differently? Go onto the GC Times website and read the article.
On April 18, 2007, Christine P. O'Hearn, Esq., of Brown & Connery, LLP, authored a letter warning plaintiff as follows:
Please accept this letter, pursuant to the Rules of Court and relevant case law, as written notice of defendants' position that the claims against defendants in this matter are frivolous and without basis in law and/or fact. Please be advised that if plaintiff's complaint is not withdrawn within the time prescribed by the Rules of Court, in the event defendants seek to dismiss and/or summary judgment and/or otherwise prevail in this litigation, defendants intend to seek costs and attorneys' fees incurred in this litigation, as well as any available sanctions.
In July 2007, Sweeney, Bruner, and Cannon filed motions for summary judgment. On August 7, 2007, plaintiff consented to the dismissal, with prejudice, of her claims against Sweeney and the Democratic Party. Bruner and Cannon's summary judgment motions were apparently withdrawn or unsuccessful, because in March 2008, they filed another motion for summary judgment. Sellitto, the County, and Morina did the same. On April 1, 2008, plaintiff consented to the dismissal, with prejudice, of her claims against Bruner and Sellitto.
This left the County, Cannon, and Morina as the only remaining defendants in this case.*fn2 In May 2008, all three filed another motion for summary judgment. After oral argument on June 27, 2008, the trial court dismissed plaintiff's complaint with prejudice. On July 14, 2008, defendants filed a motion for costs and attorney's fees pursuant to the frivolous litigation rule, Rule 1:4-8, and statute, N.J.S.A. 2A:15-59.1, and the NJLAD, N.J.S.A. 10:5-27.1.
The trial court granted this motion on August 1, 2008, holding plaintiff and plaintiff's counsel jointly liable for all of defendants' fees and costs. Plaintiff filed a motion for reconsideration and, on September 29, 2008, it was denied. On that same day, the court entered an order finding plaintiff, Van Syoc Chartered, and Clifford Van Syoc jointly liable for $136,110.01 in attorney's fees and $25,001.01 in costs.
On October 20, 2008, plaintiff and Von Syoc filed a motion for reconsideration or, alternatively, a stay pending appeal. Defendants filed a cross motion to strike improper pleadings and for an award of additional attorney's fees in the amount of $3,761.50. On December 5, 2008, the trial court granted the fee award, but also granted plaintiff's motion for a stay pending appeal. Plaintiff and Von Syoc filed a Notice of Appeal on December 30, 2008.
On January 21, 2009, defendants filed a motion with this court to dismiss plaintiff's appeal as untimely. Defendants maintained that the trial court's September 29, 2008 order denying plaintiff's first motion for reconsideration was the final order tolling plaintiff's forty-five-day window of appeal under R. 2:4-1(a). On February 17, 2009, plaintiff and Von Syoc filed their own motion to file their notice of appeal nunc pro tunc to October 24, 2008. On February 24, 2009, this court denied both motions.
As a preliminary matter, we address defendants' argument that plaintiff failed to file a timely appeal from the trial court's June 27, 2008 order granting defendants' motion for summary judgment. Defendants urge that we limit our review to whether the trial court's December 5, 2008 order denying plaintiff's motion for reconsideration was an abuse of discretion. We decline to limit our review in that fashion.
"Appeals from final judgments of courts... shall be taken within 45 days of their entry." R. 2:4-1(a). A final judgment "requires a final disposition of all claims to all parties." General Motors Corp. v. City of Linden, 279 N.J. Super. 449, 455-56 (App. Div. 1995), rev'd on other grounds, 143 N.J. 336 (1996) (citing Hudson v. Hudson, 36 N.J. 549, 553 (1962)). "An order is interlocutory, and not final, if it does not dispose of counsel fees issues." New Jersey Mfrs. Ins. Co. v. Prestige Health Group, 406 N.J. Super. 354, 358 (App. Div.) certif. denied, 2009 N.J. LEXIS 1012 (June 18, 2009) (citing Marx v. Friendly Ice Cream Corp., 380 N.J. Super. 302, 305 n.3 (App. Div. 2005); Sprenger v. Trout, 375 N.J. Super. 120, 125 (App. Div. 2005)).
Defendants sought an award of costs and attorney's fees on July 14, 2008, roughly seventeen days after the trial court's June 27, 2008 order granting defendants summary judgment. An appeal from the June 27, 2008 order would have been interlocutory and the proper target of a motion to dismiss. See ibid. Indeed, there was no final decision disposing of all issues until the trial court decided plaintiff's second motion for reconsideration. Therefore, Plaintiff's appeal is timely, and we need not limit our review.
We now review the trial court's summary dismissal of plaintiff's retaliation claims against Cannon and Morina, pursuant to the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42. Because plaintiff has failed to proffer a prima facie NJLAD retaliation claim, we affirm.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In determining the existence of a material issue of fact, the court should determine "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, supra, 142 N.J. at 540. If "the evidence 'is so one-sided that one party must prevail as a matter of law,'... the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)).
Even then, "a party may defeat a motion for summary judgment by demonstrating that the evidential materials relied upon by the moving party, considered in light of the applicable burden of proof, raise sufficient credibility issues 'to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" D'Amato v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill, supra, 142 N.J. at 523). On appeal from a grant of summary judgment, this court applies the same standard as the trial court. Alloway v. Bradlees, Inc., 157 N.J. 221, 231 (1999).
The NJLAD prohibits an employer from "tak[ing] reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified, or assisted in any proceeding under this act...." N.J.S.A. 10:5-12d. A prima facie case of retaliatory discharge requires evidence showing: 1) that the plaintiff was "engaged in a protected activity known to the defendant"; 2) that the plaintiff "was thereafter subjected to an adverse employment decision by the defendant"; and 3) that "there was a causal link between the two." Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548 (App. Div. 1995). "Where the timing alone is not 'unusually suggestive, the plaintiff must set forth other evidence to establish the causal link." Young v. Hobart West Group, 385 N.J. Super. 448, 467 (App. Div. 2005).
Once a plaintiff establishes such a prima facie case of retaliation under the NJLAD, "the defendant must articulate a legitimate, non-retaliatory reason for the decision." Id. at 549. Then, "the plaintiff must come forward with evidence of a discriminatory motive of the employer, and demonstrate that the legitimate reason was merely a pretext for the underlying discriminatory motive." Ibid.
We agree with the trial court's conclusion that plaintiff has failed to set out a prima facie NJLAD retaliation claim against Cannon. Plaintiff and Cannon's relationship (1989-1992) and the 32-day suspension (2006) were separated by a fourteen-year period that the trial court deemed "far too attenuated." Putting it more simply, the trial court concluded that no reasonable jury would find a causal connection between the two events.
In concurring with the trial court, we have duly considered plaintiff's contention that Cannon "holds a grudge," and that this grudge motivated Cannon to suspend plaintiff some fourteen years after their "falling out." Even construing that allegation in plaintiff's favor, we are still satisfied that the defendants possess a completely "legitimate, non-retaliatory reason" for plaintiff's suspension, i.e., her official misconduct in connection with the CDBG conference in Atlantic City. Moreover, because plaintiff's patent misconduct clearly warranted discipline, no reasonable jury would conclude that defendants' reasons for the suspension were mere pretext.
Plaintiff also alleges other instances of retaliation by Cannon. These include: failing to personally update plaintiff's personnel file (although this did not harm plaintiff in any way once completed by clerical personnel), objecting to plaintiff's receipt of tuition reimbursements (but later authorizing all of them), and informing plaintiff that her father's estate would be charged for his uniform and for his vacation time (but later recanting). While such treatment, if true, ranges from the neglectful to the distasteful, none of it influenced plaintiff's standing as an employee, and none of it amounts to "adverse employment action" for the purposes of a prima facie NJLAD retaliation claim. Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002) (looking for guidance to federal precedent), aff'd as modified, 179 N.J. 425 (2004); Marrero v. Camden County Bd. of Soc. Servs., 164 F. Supp. 2d 455, 475 (D.N.J. 2001).
For very much the same reasons, plaintiff has also failed to make out a cognizable NJLAD retaliation claim against Morina. There is nothing in the record to convince a reasonable jury that Morina's hostility was caused or motivated by plaintiff's rejection of Cannon's advances some twelve to fourteen years earlier. Nor has plaintiff shown that Morina specifically targeted plaintiff for her membership in a protected class enumerated in N.J.S.A. 10:5-3. See N.J.S.A. 10:5-12a. Indeed, plaintiff admits that Morina's hostility extended to all office employees.
Because we concur that plaintiff has not set forth a prima facie NJLAD retaliation claim, and that no reasonable jury would find in plaintiff's favor, we affirm the motion judge's summary dismissal of plaintiff's NJLAD claims in their entirety.
Our review of the trial court's summary dismissal of plaintiff's claims under the NJCRA leads us to a somewhat different conclusion.
The NJCRA provides, in relevant part:
Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. [N.J.S.A. 10:6-2c.]
Any person who deprives, interferes or attempts to interfere by threats, intimidation or coercion with the exercise or enjoyment by any other person of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State is liable for a civil penalty for each violation. The court or jury, as the case may be, shall determine the appropriate amount of the penalty. Any money collected by the court in payment of a civil penalty shall be conveyed to the State Treasurer for deposit into the State General Fund. [N.J.S.A. 10:6-2e.]
Plaintiff argues on appeal, as she did before the trial court, that she was deprived of equal protection when Cannon suspended her for thirty-two days but suspended her staff members for only one day. Plaintiff also argues that she was deprived of due process because she was dissuaded by Cannon's threat from pursuing her grievance.
We agree with the trial court that plaintiff's NJCRA equal protection claim lacks merit. Plaintiff argued to the trial court that she received harsher discipline than her "similarly situated co-workers." However, plaintiff was not similarly situated. Plaintiff was employed as a division head and charged with supervising others. The need to deter better-connected superiors from accepting gifts from County vendors justifies meting out stricter punishment to supervisors than to staff members, even for the same violation.
Additionally, plaintiff was in direct contact with Zumpino and consented to his offer to pay for the hotel rooms. Her staff members merely slept in these rooms. Lastly, plaintiff was charged with five violations, whereas her staff members were charged with only one each. All three of these differences undermine plaintiff's equal protection claim under the NJCRA, inasmuch as they set plaintiff apart from her "co-workers" and justify Cannon's decision to suspend plaintiff for a longer period of time. No reasonable jury would find otherwise.
On the other hand, we disagree with the trial court's summary dismissal of plaintiff's NJCRA due process claim. Plaintiff's union representative filed a grievance with the County shortly after plaintiff received notice of her suspension without pay. Plaintiff cancelled the scheduled hearing due to health problems, but never rescheduled. Plaintiff also cancelled two meetings with Cannon without rescheduling. Plaintiff explains that when her union representative advised her of Cannon's threats to fire her if she pursued the matter, she was dissuaded from taking any further action.
Our Supreme Court has recognized the NJCRA's "broad remedial purpose." Owens v. Feigh, 194 N.J. 607, 614 (2008). In that connection, we have recognized two types of claims under the NJCRA: first, a claim for when one is "deprived of a right," and second, a claim for when one's "rights are interfered with by threats, intimidation, coercion, or force." Felicioni v. Admin. Office of Courts, 404 N.J. Super. 382, 400 (App. Div. 2008). Such interference need not actually result in a deprivation of rights. See ibid. ("[I]t makes sense to require, as the Legislature evidently did, that a plaintiff show 'threats, intimidation, or coercion' were employed if constitutional rights were merely interfered with or an attempt was made at interfering with them, and that no such showing is required where one has actually been deprived of that right.").
Here, plaintiff alleges that Cannon told her union representative that any further attempt to pursue the matter would result in plaintiff's termination. The trial court dismissed plaintiff's NJCRA claims, concluding that her allegations did not present a "colorable procedural due process claim." We believe that in doing so, the trial judge may have improperly resolved an issue of fact in defendants' favor, i.e., whether Cannon's statements to plaintiff's union representative were threats that interfered with plaintiff's due process rights.
Nevertheless, we are, like the trial court, troubled by another aspect of plaintiff's claim. In order to bolster her NJCRA claim, plaintiff has alleged that Cannon made statements to her union representative - a classic example of double hearsay. While Cannon's statement to the representative is admissible under N.J.R.E. 803(b)(1) ("Statement by Party-Opponent"), the representative's statement to plaintiff does not appear to fall under any applicable hearsay exception.
Aside from plaintiff's own testimony, the record contains no proof of Cannon's statement. At this stage of the proceeding, such evidence should be presented in the form of a certification or deposition statement by plaintiff's union representative. Nothing of the sort has been submitted. Therefore, if plaintiff's testimony about Cannon's statement is, as we suggest, inadmissible double hearsay, plaintiff's is left without evidence that a threat was made. That being the case, plaintiff is seemingly left with no evidence to convince a reasonable jury on her NJCRA claim.
While we are inclined to affirm on this ground alone, we are mindful of the interplay between hearsay determinations and summary judgment, as recently discussed by our Supreme Court:
As a practical matter, a trial court confronted with an evidence determination precedent to ruling on a summary judgment motion squarely must address the evidence decision first.... It is only after the trial court has made the findings required to either admit or exclude the proffered evidence and has made a ruling thereon that it may proceed to determine the then-pending summary judgment. On appeal, then, those rulings will be gauged separately: the evidentiary ruling under an abuse of discretion standard, and the legal conclusions undergirding the summary judgment motion itself on a plenary de novo basis. [Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., ___ N.J. ___ (June 21, 2010) (slip op. at 18-19).]
Previous decisions from this court suggest that a remand is the proper disposition where the propriety of summary judgment turns upon the admissibility of testimonial evidence, but the trial court has not made the admissibility determination. See Theobald v. Dolcimascola, 299 N.J. Super. 299, 306 (App. Div. 1997) (remand to determine admissibility of hearsay statements where such evidence "appears to be the only potential evidence" against defendants).
However, we see no reason why this matter should drag on in the absence of sufficient proof. If on remand plaintiff can offer no basis for admitting the double-hearsay statement, and there appears to be no other evidence of Cannon's statement besides plaintiff's allegations, "[t]here then may be a basis for the renewal of the summary judgment motion..." Id. at 307.
As a final matter, we review the trial court's decision to award sanctions for frivolous pleading pursuant to R. 1:4-8 and N.J.S.A. 2A:15-59.1. We reverse the trial court's orders holding plaintiff and Von Syoc liable for defendants' costs and attorney's fees under the aforementioned rule and statute. However, we remand for a determination of whether attorney's fees should be awarded under N.J.S.A. 10:5-27.1.
Our review of the trial court's decision to award sanctions is limited to determining whether the award of such sanctions constituted an abuse of discretion. Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div.), certif. denied, 200 N.J. 502 (2009). "Reversal is warranted when 'the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment.'" Ibid. (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).
Sanctions against a party or attorney for frivolous pleading are available under R. 1:4-8, and against a party under the frivolous litigation statute, N.J.S.A. 2A:15-59.1. A party seeking sanctions for frivolous litigation under these provisions must serve written notice and demand pursuant to R. 1:5-2 to the attorney or pro se party who signed or filed the paper objected to. The certification shall have annexed a copy of that notice and demand, which shall (i) state that the paper is believed to violate the provisions of this rule, (ii) set forth the basis for that belief with specificity, (iii) include a demand that the paper be withdrawn, and (iv) give notice, except as otherwise provided herein, that an application for sanctions will be made within a reasonable time thereafter if the offending paper is not withdrawn within 28 days of service of the written demand.
[R. 1:4-8(b)(1) (emphasis added).]
This requirement extends to the frivolous litigation statute as well the court rule. See R. 1:4-8(f).
Here, defendants' notice letter was deficient as the result of its failure to specify defendants' basis for alleging frivolousness. We find this shortcoming to be fatal in light of our previous insistence that "[s]trict compliance" with R. 1:4-8(b)(1) "is a prerequisite to recovery." State v. Franklin Sav. Acct., 389 N.J. Super. 272, 281 (App. Div. 2006) (citing Community Hosp. Group, Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div. 2005), certif. denied, 187 N.J. 489 (2006)). Although Franklin and Blume were cases in which no notice was sent, we regard strict compliance to be just as necessary in composing the letter's substance as in ensuring its dispatch and service.
However, we discern no such notice requirement under N.J.S.A. 10:5-27.1. This section of the NJLAD allows "the prevailing party" to recover "reasonable attorney's fees as part of the cost, provided however, that no attorney's fees shall be awarded to the respondent unless there is a determination that the complainant brought the charge in bad faith." We have noted that a claim is not necessarily brought in bad faith, even when it is frivolous or ultimately groundless. See Michael v. Robert Wood Johnson Univ. Hosp., 398 N.J. Super. 159, 166 (App. Div.), certif. denied, 195 N.J. 420 (2008)).
In Michael, we wrestled with the meaning of "bad faith" under N.J.S.A. 10:5-27.1, writing:
We consider it significant that N.J.S.A. 10:5-27.1 does not include within its reference to bad faith the further limitation that is contained within the reference to bad faith in the frivolous claims statute, that the action was commenced or continued "solely for the purpose of harassment, delay or malicious injury."...
The Supreme Court, admittedly in another context, equated bad faith with "a reckless disregard or purposeful obliviousness of the known facts." New Jersey Title Ins. Co. v. Caputo, 163 N.J. 143, 155 (2000). In our judgment, the Caputo formulation more fully achieves the legislative objective of "eliminat[ing] the possible chilling effect on civil rights plaintiffs, who may decide not to pursue a meritorious suit for fear of suffering a fee award, and the goal of deterring plaintiffs from filing frivolous claims." Veneziano [v. Long Island Pipe Fabrication], 238 F. Supp. 2d [683,] 689 [(D. N.J. 2002)]. [Id. at 165.]
The trial court imposed sanctions under R. 1:4-8 and N.J.S.A. 2A:15-59.1, but declined to address an award of reasonable attorney's fees under N.J.S.A. 10:5-27.1. As we have explained, however, defendants are not entitled to sanctions under the first two provisions as the result of their failure to strictly comply with the notice requirement of R. 1:4-8(b). We therefore reverse the trial court's award of sanctions, and remand for a further determination of whether plaintiff's NJLAD claim was filed in bad faith, and if so, the amount of reasonable attorney's fees incurred as a result of the NJLAD claim only. See Ricci v. Corporate Exp. of the East, 344 N.J. Super. 39, 48 (App. Div. 2001), certif. denied, 171 N.J. 42 (2002) ("When a party is entitled to attorney's fees for only some of the work performed, the relevant services should be identified or a reasonable explanation made for the failure to so.").
In summary, we reverse the trial court's order of summary judgment dismissing plaintiff's NJCRA claim, and remand for further proceedings on the issue of whether Cannon's alleged threat to fire plaintiff if she pursued her grievance can be evidentially supported. We further reverse the trial court's award of sanctions under Rule 1:4-8 and N.J.S.A. 2A:15-59.1, and remand for a full hearing on whether defendants are entitled to reasonable attorney's fees under N.J.S.A. 10:5-27.1. We affirm the order of summary judgment dismissing plaintiff's NJLAD claim.
Affirmed in part, reversed in part and remanded for further proceedings.