On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2806-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges C.L. Miniman and LeWinn.
Plaintiff appeals from the March 17, 2009 order of the trial court granting summary judgment to defendant, her employer, dismissing with prejudice her complaint alleging gender, age and race discrimination in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49. Plaintiff began her employment with defendant in September 1985, in the Bus Operations Division. In 1986, she was promoted to a full-time Garage Clerk; in 1988 she was promoted to her current supervisory title of Foreman II. In October 2004, plaintiff unsuccessfully applied for promotion to the position of Foreman I. She filed her lawsuit two years later; in addition to the NJLAD claims, plaintiff also alleged breach of a covenant of good faith and fair dealing and "extreme and outrageous" conduct resulting in "severe emotional distress, mental anguish, and physical harm." She sought compensatory and punitive damages.
In August 2008, defendant filed a motion to dismiss the complaint for failure to provide discovery, pursuant to Rule 4:23-5. During oral argument on that motion, the judge asked plaintiff's counsel, "What do you say happened to [plaintiff]?" Counsel responded: "She had been passed over for promotions . . . at various stages." The judge then asked counsel to state what "[plaintiff's] damages are[,]" to which counsel responded: "The differential in pay for the positions for which she had applied and she had been denied."
On September 11, 2008, the judge entered an order denying defendant's motion to dismiss, scheduling discovery, and further providing that "[p]laintiff's damages claims which are unrelated to her claims of promotional denials are dismissed . . . ." Plaintiff protested this provision of the order in a letter to the judge; however, plaintiff never sought clarification or reconsideration of that order.
Defendant filed its motion for summary judgment returnable on February 20, 2009. Following oral argument, the judge first ruled that, pursuant to the two-year statute of limitations in the NJLAD,*fn1 the only incident he would consider in connection with plaintiff's failure-to-promote claim was the October 4, 2004 denial of promotion to Foreman I. The judge then made the following findings regarding the panel who interviewed the candidates for that position:
The . . . interview panel was a cross section. The members of the panel certified that the written scores were not used to rank the interviewees in any kind of order. So when they came into the interview process, all were equal at that point. There wasn't a stratification based on the score, and . . . the interviewers believe[d] that plaintiff's responses were not as accurate, complete, forthcoming and/or persuasive as the panelists wanted, and they didn't think plaintiff handled herself well under pressure and didn't feel she demonstrated a strong working knowledge in several of the subject areas. . . . [T]hese are all legitimate inquiries for the position, and it was unanimous for [the successful candidate] to get it . . . .
The judge then inquired whether plaintiff could point to any evidence of record sufficient to rebut the legitimate reasons proffered by defendant in support of its promotion decision in order to demonstrate that such reasons were "pretextual." Plaintiff alluded to her hostile work environment claim, contending that "there is a pattern established" giving rise to "the doctrine of the continuing violation theory . . . ."
Plaintiff further protested that she had not "voluntarily" dismissed all claims other than the incident that occurred within the two-year statute of limitations period. Plaintiff asserted that defendant had misconstrued what occurred during the August 2008 proceedings that culminated in the order of September 11, 2008, and that all claims set forth in the complaint were preserved.
The judge stated that he would review a transcript of the August 2008 proceedings in light of plaintiff's protest, and reserved decision on plaintiff's hostile work environment claim pending that review. The judge then proceeded to dismiss plaintiff's contract and tort claims for failure to timely file the requisite notice, pursuant to N.J.S.A. 59:8-8.
In support of his order of March 17, 2009, granting summary judgment to defendant, the judge issued a letter opinion stating the following:
I have listened to the transcript of the oral argument which resulted in the September 11, 2008 [o]rder. On that record [plaintiff's counsel] specifically indicated that his only claim was that his client was passed over for various promotions and that the damages were a differential in pay from what she made and what she should have made had she been appropriately promoted. In the Answers to Interrogatories[,] the plaintiff did not delineate any damages whatsoever; this representation on the record supplemented that Answer and, in my mind, reduced the plaintiff's claim to a failure to promote claim. That is the reason for the September 11, 2008 [o]rder. I realize that plaintiff's counsel wrote to disagree with the terms of that [o]rder subsequent to its entry. He did not, however, seek leave to appeal that [o]rder nor did he ...