On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1914-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
Plaintiff Marilyn Ryan served as the Assistant to the Mayor (Assistant) of the Township of Mount Olive (Township) from January 26, 2004 to December 18, 2006, when her position was eliminated. Township officials cited budgetary concerns as the reason for the elimination of her position. In her complaint, plaintiff alleges that she was discharged and asserts that her discharge was grounded on her age, gender, and political affiliation. She also alleges retaliation for filing a workers' compensation claim and invoking her rights under the Family Medical Leave Act (FMLA), 29 U.S.C.A. §§ 2601 to 2654. She appeals from an order granting summary judgment to defendants and dismissing her complaint in its entirety. We affirm.
Plaintiff was initially hired by defendant's Township on August 1, 2001, as a part-time clerk typist. On June 3, 2002, she became a Special Projects Coordinator. On January 1, 2004, near the time the newly-elected mayor, Richard De La Roche, took office, she was promoted to the position of Assistant. Plaintiff's job responsibilities as Assistant included supporting the Mayor and the Business Administrator and doing other clerical work. Plaintiff's prior position, Special Projects Coordinator, was not filled and was eliminated the following year. Plaintiff assumed some of the job responsibilities of that position.
There is some dispute about the circumstances of plaintiff's appointment to the Assistant position. Plaintiff alleges she was selected for this promotion, that her selection displaced the incumbent Assistant, and a position in the local government was found for the displaced Assistant at the same salary. Defendants, however, allege the prior Assistant was transferred to the position of Planning Consultant for the municipal planning board to fill a supervisory void and that plaintiff was promoted to Assistant to fill the vacancy created by the transfer.
In support of plaintiff's claim of gender discrimination, plaintiff refers to a statement made by defendants Robert Greenbaum and Steven Rattner, both of whom served as elected members of the Township Council. Plaintiff learned that Greenbaum and Rattner discussed her position at the March 12, 2005 budget meeting. Plaintiff obtained a copy of a recording of this public meeting and listened to several comments between Greenbaum and Rattner about her position. It is not disputed that Greenbaum told Rattner that he favored elimination of plaintiff's position. In response to this suggestion, Rattner responded, "this is going to be fun," and laughed. During a recess, Greenbaum and Rattner continued their conversation about plaintiff's position. This conversation was also recorded. Greenbaum referred to plaintiff's job as "fluff" and "useless to the township." He referred to plaintiff as a "cheerleader."
Plaintiff filed a complaint with the Township Business Administrator about their March 2005 Budget Meeting comments. She alleges she was told she "really shouldn't make a fuss over it because then the council would really rattle [her] cage." Councilwoman Colleen Labow testified at her deposition that the comments were not directed at plaintiff but at her position and other positions in the Township.
Plaintiff also relies on a July 26, 2006 incident at a local blood drive. She stated that as she reviewed her husband's donor questionnaire, Rattner leaned over and said "Why? Are you looking for a second job as a hooker?" Rattner denied ever making that statement or any other statement to plaintiff that day.
Plaintiff also relates a third unpleasant experience with Rattner that occurred as she delivered a contract to the Township Clerk. She states Rattner was in the Clerk's office and insisted on telling her the source of recent sewer problems. She states that Rattner blocked her exit from the Clerk's office and told her that "most of these sewer systems... [are] clogged up with women's panties and personal products, you know, that cause the grinder machinery to become gummed up...." Plaintiff found the comment disgusting.
Rattner does not dispute that he made this or a similar statement, but denied the statement was directed specifically at plaintiff. He insists the Clerk asked a question about a recent bill, and Rattner offered him an explanation that was overheard by plaintiff.
In further support of her gender discrimination claim, plaintiff states that Jim Buell, another councilman, criticized her at a public meeting about an email she sent at the request of the Mayor about an effort to recall him. She alleges that Buell stated that plaintiff should be "RICO'd" for theft of services for sending the email.
Plaintiff also alleges that the Business Administrator told her that Greenbaum was cursing and threatening to bury her and had submitted an Open Public Records Act request for her time and attendance records, and a private log sheet that recorded the reasons for certain doctors' visits.
During her deposition, plaintiff stated that she believed that these encounters and statements evidenced that she was treated differently than a man "because of the types of things that they said about [her]." She also opined that she did not believe that "they would have as easily dismissed a man or tried to undermine a man."
In support of plaintiff's age discrimination claim, plaintiff identified another statement made by Greenbaum at the March 2005 budget meeting that evidenced a desire to replace her with a younger employee. She relates a statement by Greenbaum to Rattner in which he allegedly stated, "If we eliminate [plaintiff's] position that will help with Christie [Stachnick]. That is where the cut has to be. They are going to have to drop her salary too." Rattner allegedly responded, "this is gonna be fun."*fn1
Stachnick is a woman who was in her thirties at the time of plaintiff's termination; plaintiff was fifty-nine years of age at that time. According to the Business Administrator's affidavit in support of defendants' motion for summary judgment, forty-seven women worked for the Township in 2008, of whom eleven were two years younger, the same age, or older than plaintiff. Plaintiff was the oldest of three women who worked in the Township office that housed the mayor, members of council, and the clerk.
In support of her claim of political affiliation discrimination, plaintiff argues in her brief on appeal that she served as Assistant to a mayor who was recalled in the November election. She asserts that the recall was a significant political event in the Township that precipitated "extensive disputes and litigation for several months" before her termination.
In the midst of budget disputes and effort to recall the mayor for whom she worked, plaintiff was hospitalized on September 26, 2006, due to difficulty breathing, chest pain, and elevated blood pressure. She alleges that her doctors informed her that her condition was attributable to job-related stress. Stachnick, who served as benefits coordinator for the Township, filled out a workers' compensation incident report. Plaintiff filed a workers' compensation claim and complains that Stachnick advised her that her medical records would not remain confidential if she pursued this claim. Plaintiff's workers' compensation claim was denied.
On October 4, 2006, plaintiff went on medical leave. She was scheduled to return to work on December 27, 2006. On November 6, 2006, the incumbent mayor was recalled and another person was elected mayor. On December 18, 2006, the Township Council approved the 2007 budget. The ...