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Toniann Bush and John Bush v. New Jersey Transit Corporation

January 20, 2011


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3085-06.

Per curiam.


Submitted October 26, 2010

Before Judges Wefing, Payne and Baxter.

Plaintiff appeals from a trial court order granting defendants' motion for summary judgment and dismissing her complaint with prejudice.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff ToniAnn Bush worked for defendant New Jersey Transit Corporation (Transit) from 1987 until 2004. Her initial position was as an assistant organizational services specialist, and she worked her way up to become a Manager of Facility Services. In this position, she was responsible for two Transit locations, the Maplewood General Office Building and the Orange Annex. Her supervisor was defendant Frank Fittipoldi.

The record is not entirely clear as to when Fittipoldi became her supervisor, but in 2006 she filed a multi-count complaint alleging, inter alia, hostile work environment, constructive discharge, and retaliation. After engaging in discovery, defendants moved for summary judgment, arguing that her complaint was barred by the statute of limitations. The trial court agreed and granted defendants' motion.

Plaintiff argues on appeal that the trial court erred in not applying the discovery rule for purposes of the statute of limitations, Lopez v. Swyer, 62 N.J. 267 (1973); that the trial court further erred in concluding that she had not suffered any adverse job action; and finally, that defendants' motion was premature because she had not yet had the opportunity to complete the deposition of defendant Fittipoldi. For the following reasons, we are satisfied that the trial court's conclusion was entirely correct and should be affirmed.

Plaintiff traced her problems with Fittipoldi at least back to 1992, when she reported to him that a particular vendor was being difficult in negotiations. He responded, "What does he expect you to do? Get on your knees and blow him?" She was understandably taken aback by such a crude and inappropriate remark. While the record makes clear that Fittipoldi's language was often crude and unprofessional, it also makes clear that he did not select women as the target of such language but, rather, used it generally.

Plaintiff recited a number of instances in which she contended that Fittipoldi denigrated her and did not treat her with the respect her position called for. She also asserted that he did not support her managerial position, undercutting her ability to supervise those under her. Her complaints included the following incidents.

In 1994, plaintiff recommended that a problem employee of hers be terminated, but, instead, Fittipoldi transferred him to another unit. The employee had served as a foreman, but Fittipoldi never filled that foreman position after the transfer. As a result, plaintiff had an increased workload.

On February 14, 1996, plaintiff sent a memo to Fittipoldi, letting him know that she was unhappy with his arrogance, sarcasm, and vulgarity. Therein, she cited instances where Fittipoldi had given her orders that made it appear as if she were not doing her job properly, disregarded her authority, and denied her funding or staffing that her equal, Sue Whittington, received.

In March 1996, Fittipoldi directed plaintiff to resign from her position as a volunteer member of the Transit Emergency Response Team, after she had responded to a call during a snowstorm instead of coming to the office that day. Plaintiff felt that Fittipoldi was not treating her the same as Whittington, who he would allow to call in sick during inclement weather.

In April 1996, plaintiff discussed Fittipoldi's treatment of her with his superior, Frank J. Hopper. Hopper then met with plaintiff and Fittipoldi, advising them to "play nice."

On April 12, 1996, Fittipoldi eliminated the positions of two of plaintiff's twenty-two staff members. When plaintiff asked why, ...

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