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Patterson v. Cannon

August 24, 2010

DIANE KIRWAN PATTERSON, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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