September 28, 2010
PAULA A. MIDDLEMAN, PLAINTIFF-APPELLANT,
NEW JERSEY TRANSIT, A/K/A NEW JERSEY TRANSIT, NEW JERSEY TRANSIT BUS OPERATIONS SOUTHERN UNIT, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 make a [m]otion for reconsideration. Furthermore, I believe that a fair reading of the record from that oral argument makes it very clear that the only remaining claim at that time was the failure to promote claim.
On appeal, plaintiff raises two points, both addressed to her failure-to-promote claim. First, plaintiff contends that she is entitled to challenge at trial defendant's proffered reason for failing to promote her to show that it is pretextual.
Secondly, plaintiff challenges the findings on which the trial judge dismissed this claim. In the course of presenting these arguments, plaintiff relies upon a hostile work environment contention, claiming that "she has alleged numerous incidents of discriminatory treatment by [d]efendants [sic] that date back as far back as the 1990's."
Our review of a grant of summary judgment is de novo and we apply the same standard governing the trial court under R. 4:46. Dugan Constr. Co., Inc. v. N.J. Tpk. Auth., 398 N.J. Super. 229, 238 (App. Div.), certif. denied, 196 N.J. 346 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That standard requires us to "consider 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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995); see also R. 4:46-2(c).
As noted, on appeal plaintiff challenges only the grant of summary judgment on her failure-to-promote claim. Subsumed in her second point is an argument addressed to the merits of her hostile work environment claim. Nowhere in her brief, however, does plaintiff address the trial judge's finding that, at the August 2008 hearing, plaintiff had abandoned all claims other than the failure to promote. That finding was based on her counsel's express representation to that effect on the record, as well as plaintiff's interrogatory answers in which the only damages addressed were the differential in pay between her current position and the promotion she sought.
Plaintiff has not addressed the issue of the claims dismissed in the September 11, 2008 order.*fn2 Therefore, as this specific issue has not been briefed on appeal, it is deemed waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); see also Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2010). Consequently, we address only the grant of summary judgment on plaintiff's failure-to-promote claim.
First, we are satisfied that the trial judge properly ruled that the two-year statute of limitations applicable to NJLAD claims barred consideration of plaintiff's unsuccessful promotion efforts prior to September 28, 2004. Unlike a hostile work environment claim, allegations involving conduct such as the failure to promote are considered "'discrete' discriminatory acts" each of which "'constitutes a separate actionable unlawful employment practice.' . . . [A] 'discrete retaliatory or discriminatory act occur[s] on the day that it happens.'" Shepherd v. Hunterdon Developmental Ctr, 174 N.J. 1, 19 (2002) (quoting AMTRAK v. Morgan, 536 U.S. 101, 108, 113, 122 S.Ct. 2061, 2070, 2073, 153 L.Ed. 2d 106, 120, 122 (2002)). Thus, the only incident of an alleged discriminatory employment action before the trial judge was that involving defendant's adverse promotion decision of October 4, 2004.
Secondly, we discern no basis to disturb the trial judge's grant of summary judgment to defendant on this claim. As noted, the record evinces several legitimate reasons for defendant's decision not to promote plaintiff. The three-member panel who interviewed all candidates was diverse with respect both to gender and to race. Scores from the written examination were not used to rank the candidates prior to their interviews. As the trial judge found, the interview panel evaluated [her] answers to the questions, as compared with the answers given by the other candidates. In so doing, [the panel] looked at both her objective answers, as well as the subjective way she handled herself under the pressure of the panel interviews. Unfortunately, [plaintiff's] answers to [the] interview questions were not as accurate, complete, forthcoming and/or cogent as [the panel] needed them to be.
[Plaintiff] did not demonstrate a strong working knowledge of several of the subject areas. In short, [plaintiff] did not fare as well during her interview as the other candidates.
Race, gender and age were completely irrelevant to the panel's decision to select [the successful candidate] over [plaintiff]; [the] promotional decision was based entirely upon the qualifications of the candidates and the subjective and objective quality of the candidates' answers during their interviews.
As noted, when asked by the trial judge for any evidence to rebut defendant's proffered legitimate reasons as "pretextual," plaintiff was unable to do so. Thus, even assuming plaintiff established a prima facie case of unlawful discrimination by demonstrating that she "(1) belongs to a protected class; (2) applied for or held a position for which . . . she was objectively qualified; (3) was not [promoted to] . . . that position; and . . . (4) the employer . . . fill[ed] the position with a similarly-qualified person[,]" Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002), once defendant "articulate[d] a legitimate, non-discriminatory reason for the adverse employment action[,] . . . the burden shift[ed] back to . . . plaintiff to show that the employer's proffered reason was merely a pretext for discrimination." Ibid. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973) (setting forth the burden-shifting framework adopted by our courts as applicable to NJLAD claims).
In light of the foregoing, we are satisfied that the record clearly supports the summary judgment granted to defendant with respect to plaintiff's failure-to-promote claim under the NJLAD.