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Louise Stewart v. County of Hudson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 22, 2011

LOUISE STEWART, PLAINTIFF-RESPONDENT,
v.
COUNTY OF HUDSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3579-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 26, 2011

Before Judges Axelrad, Lihotz and J. N. Harris.

Defendant County of Hudson (County) appeals from a jury verdict in favor of its current employee, a corrections officer, finding it had retaliated against her under the Law Against Discrimination and the Workers' Compensation Act, and awarding her damages and attorneys' fees. We reverse and remand for a new trial.

Plaintiff Louise Stewart, a Caucasian female, is employed as a corrections officer at the Hudson County Correctional Center (HCCC). She filed a one-count complaint against the County on July 18, 2007, alleging failure to promote as retaliation for her filing for workers' compensation benefits in violation of her rights under the New Jersey Workers' Compensation Act (Workers' Compensation Act), N.J.S.A. 34:15-1 to -128, and based on her gender and race in violation of her rights under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 10:5-49. Stewart also generally alleged that on or about June l8, 2007, the County filed a preliminary notice of disciplinary action against her for allegedly failing to keep medical appointments "for which there was sufficient reason on each and every occasion[, and] such charges constituted harassment and retaliation against [her] in anticipation of [her] objection to being passed over for the promotion announced on June 22, 2007." Stewart sought promotion to the rank of sergeant, compensatory damages for back pay resulting from earlier failures to promote, emotional distress and mental anguish; punitive damages; interest; counsel fees and costs of suit. The County filed an answer denying that it engaged in any conduct warranting either the promotion of Stewart or the award of damages.

On June 17, 2009, the County made an in limine motion to bar evidence of events that occurred prior to July 18, 2005, based on the two-year statute of limitations for LAD claims. The court denied the motion.

Following the close of Stewart's case and argument by counsel, the court granted the defense motion under Rule 4:37-2(b) on June 30, 2009, and involuntarily dismissed Stewart's claims of race and gender discrimination under the LAD.

The trial concluded on July 2, 2009. The jury found the County violated the LAD "by making adverse employment decisions or actions in retaliation for [Stewart] having engaged in a protected activity," and Stewart proved by a preponderance of the evidence the County violated the Workers' Compensation Act "by making adverse employment decisions or actions in retaliation for [Stewart] having sought or accepted Workers' Compensation benefits." The jury awarded Stewart $70,000 in damages, consisting of $67,000 in economic loss and $3000 for emotional distress and mental anguish. Judgment was entered on July 13, 2009.

Stewart subsequently filed a motion for counsel fees. The County moved for a new trial and judgment notwithstanding the verdict. On September 3, 2009, the court denied the defense motions and awarded Stewart counsel fees and costs in the amount of $121,458. This appeal ensued.

I.

At trial, Stewart presented her own testimony and that of Anthony Staltari, a County personnel officer involved with the civil service list. She also presented the deposition testimony of Jose Montanez, an HCCC Captain; Oscar Aviles, the HCCC Director; and that of Staltari. The defense presented the testimony of Staltari, David Krusznis, the HCCC Deputy Warden of Operations, Thomas Monteleone and Ronald Edwards, HCCC Lieutenants, Mercedes Maldonado, a County Records Manager, Kevin Orlik, an HCCC Sergeant, and Aviles. The following testimony and evidence was adduced.

Stewart began employment as a corrections officer at the HCCC on April 1, 1996, in the receiving/intake area (Unit 2). She was a member of PBA Local 109 (the union), held leadership positions, including being a member of the grievance committee, and was subject to a collective negotiations agreement (CNA).*fn1

HCCC had guidelines regarding disciplinary infractions. A minor disciplinary infraction was anything that resulted in fewer than five days of suspension or a fine, while a major disciplinary infraction resulted in six days or more of suspension. Major disciplinary actions could be used as justification to bypass a person for promotion, but minor discipline was not to be considered in promotion decisions. In general, the County did not promote anyone who was being investigated for a major disciplinary action.

The Litigation Alternative Procedure (LAP) agreement between the County and the union governed how officers were moved between various shifts. The LAP agreement also provided that when officers needed to be removed from a post because positions were eliminated, the officers were removed in reverse seniority order.

A corrections officer became eligible for a promotion to sergeant after three years of permanent status. Promotions at HCCC were awarded according to the Civil Service Act, N.J.S.A. 11A:1-1 to 11A:12-6. Prospective applicants were required to take the civil service exam and, based on their scores, some segment of the examinees were "certified." Certified applicants could then express interest in being promoted to a particular position. A panel of four interviewers would make recommendations based on the applicant's work history, personnel file, disciplinary file, and internal affairs file. The employer was authorized to choose any one of the top three candidates, otherwise known as the "rule of three." Stewart wanted to be promoted to the rank of sergeant, and on three occasions between 1999 and 2007, she took the civil service exam.

In October 2004, at Stewart's request, the County transferred her from Unit 2 to the operations unit. The operations unit provided coverage for other correctional officers who were out on sick or vacation leave.

Aviles, as a defense witness, testified Stewart had filed Grievance 04-30 on September l5, 2004, alleging that when she had transferred to the operations unit, she was denied two consecutive weekend days off in violation of the CNA. He explained that by memo of October 25, 2004, he had denied the grievance, with citation to the CNA,*fn2 concluding because Stewart had voluntarily decided to leave her unit and change her shift, this was not a grievable issue. Stewart's grievance and Aviles' reply were admitted into evidence. Stewart did not appeal Aviles' determination.

Stewart testified that on October 17, 2004, she filed Grievance 04-31 alleging sex discrimination. Stewart testified, and the form admitted into evidence reflected allegations, that she was reassigned from her regular assignment to a different post and was informed by a sergeant it was "because [she] was a woman" as he did not want to assign a male officer to a female housing unit.*fn3 According to Stewart, she received a responsive memo from Aviles saying "it was not a grievable issue because there was a policy against such practices."

Stewart further testified she had occasion after that date to "file a grievance or complain about post assignments based on gender." Over the defense objection, Stewart explained that between October 2004 and September 2005, there was a restructuring and she was informed she was being reassigned from Unit 2 and being replaced by a male officer because defendant wanted a stronger male presence. According to Stewart, the LAP agreement provided for reassignments by reverse seniority; she claimed there were a minimum of four officers on her post, all male, who were less senior than her. Stewart testified she agreed to a transfer to support services.

In September 2005, Stewart was injured on the job and was out of work receiving workers' compensation benefits for four months. Upon her return to work in January 2006, Stewart was not placed in her previous post. Krusznis explained that when a person returned from leave, the employee had to be placed in the same shift, but management could decide which post the person would occupy.

In 2006, there were openings at HCCC for sergeants, and Stewart expressed interest in being promoted to the position. In May and June 2006, Stewart was interviewed by the panel and three of the four interviewers recommended Stewart for promotion.

On December 12, 2006, Stewart injured her knee at work and went out on workers' compensation leave. Among other items, the County's doctor ordered her to attend physical therapy.

Krusznis, who was also in charge of the Internal Affairs Department (IAD), learned Stewart would be hosting a holiday party at a bar on December 21, 2006. He discussed Stewart's situation with Jamie Harney from the Risk Management unit, which oversaw employees who were on workers' compensation leave, and she told him Stewart should be using crutches. Krusznis' surveillance of Stewart revealed she entered and exited the bar during the holiday party without crutches. Stewart later explained the party had been planned three months in advance, before the injury occurred, and she had planned to take a vacation day on that day and would not have been at work in any event. According to Stewart, a knee brace was not visible under her clothing and she was never ordered to use crutches.

On January 9, 2007, Krusznis notified Aviles that Stewart was under investigation by risk management for "malingering," i.e., feigning illness. On cross-examination Krusznis conceded that IAD was not investigating Stewart at that time and this was just his general impression, not based on any evidence he reviewed.

On January 10, 2007, Aviles recommended human resources bypass Stewart for promotion on the "rule of three" based on the pending IAD investigation. At that time, Stewart ranked highest on the list of people who were being considered for promotion to sergeant. Aviles had authority to override the positive recommendations of the interview panel. In January 2007, the County promoted five officers to the rank of sergeant, but Stewart was not among them. On June 22, 2007, the County promoted six officers to the rank of sergeant (four males and two Black females) but, again, Stewart was not promoted. According to Staltari, the records reflected the HCCC determined the other candidates who had been promoted were "better qualified." Stewart appealed her by-pass of promotions to the Merit System Board, which on June 12, 2008, denied the appeal and upheld the County's decisions.

In early 2007, Stewart complained to Maldonado regarding carryover vacation days that had not been credited to her when she was out on workers' compensation leave following the December 2006 injury. On June 28, 2008, Stewart filed a grievance on this issue with her union; it was questionable whether the grievance was submitted to the County.

In March 2007, Stewart underwent knee surgery. Stewart ultimately was out of work for eighty-four days for the December 2006 work-related injury, and returned in May 2007.

Despite the defense doctor's order for Stewart to attend physical therapy, she missed eighteen appointments between January and June 2007. On June 18, 2007, the County issued a major disciplinary infraction against Stewart based on the missed appointments, charging her with insubordination, conduct unbecoming a public employee and neglect of duty, and recommending suspension or removal. Following a departmental disciplinary hearing in March 2008, on April 2, 2008, the assistant personnel director ordered these charges dismissed based on failure of proof by the County.

On July 1, 2007, Stewart worked voluntary overtime in the "professional visits" post where officers observe attorney-inmate visits through a camera. Unfamiliar with the protocol, she left her post without insuring that one of the attorneys had left the visiting area. Later, the attorney was found calling for help. As a result, the County issued a second disciplinary infraction against Stewart and ordered her suspended for seven days for insubordination and neglect of duty. The suspension was eventually reduced to four days, with three days held in abeyance for a probationary period.

In August 2008, Stewart applied to become a member of the Gang Intelligence Unit (GIU) and testified the HCCC decision not to select her was in retaliation for filing grievances and workers' compensation claims. Krusznis, a member of the GIU, explained the reasons for the HCCC's decision.

On August 12, 2008, Stewart had disposable coffee cups on her desk in violation of HCCC policy prohibiting bringing in outside material to the jail other than clear plastic cups, and refused to remove them when ordered to do so. The County issued a major disciplinary infraction against her.

Stewart testified that a sergeant at HCCC earned $87,508 as of January 1, 2007, while she earned about $61,000 as a corrections officer during that time. As of January 1, 2008, a sergeant earned $91,008, while she earned $67,000. As of January l, 2009, a sergeant earned $94,648, while she earned $83,000. Stewart also testified that as a sergeant she would have been permitted to make larger contributions to her pension.

II.

On appeal, the County contends the court erred in: (1) admitting time-barred evidence of Stewart's 2004 grievances that were too remote in time to create a nexus between her complaint and any alleged retaliatory conduct by the County and (2) finding Stewart established a prima facie case for retaliation under the LAD and Workers' Compensation statutes regarding either or both the denials of promotion, reassignment to a different post upon return from injury leave, and denial of a transfer to the GIU. The County also argues the verdict should be set aside because it provided legitimate non-retaliatory reasons for bypassing Stewart for promotions and Stewart suffered no damages given that the "rule of three" permitted the County to exercise discretion in the selection of any one of the top three candidates for promotion. Lastly, the County argues the counsel fee award should be vacated or, alternatively, adjusted by reducing the twenty percent fee enhancement awarded by the court. Because we are convinced Stewart did not establish a prima facie case for retaliation under the LAD and the proofs and award were so inextricably intertwined with the workers' compensation retaliation, we set aside the verdict, vacate the counsel fee award, and remand for a new trial solely on Stewart's workers' compensation claim.

To place the County's arguments into perspective, we first need to recite the court's ruling involuntarily dismissing a portion of Stewart's claim following the conclusion of her case-in-chief and the jury instruction given at the end of the case. The court characterized the claim as follows:

As to the claim for racial and gender discrimination under the [LAD], specifically, the claim that [Stewart] was by-passed for promotion from corrections officer to sergeant unlawfully based on her gender and/or race, a review of the evidence reveals the following.

It is the plaintiff's burden of proof to come forward with a prima facie case of discriminatory treatment. [Stewart] must show that she was in a protected class, that she was performing her job at a level that met the employer's reasonable expectations but was, nonetheless, adversely affected by an employment decision, specifically, in this case, the decision to be by-passed for promotion.

In my opinion, there's no evidence in the record to show that the denials of promotion were based on anything other than legitimate nondiscriminatory reasons, namely, the disciplinary history of the plaintiff, Miss Stewart.

The disciplinary investigation and the eventual charges stem from the health care provider and the third party administrator who are vendors to but not agents of the County of Hudson. There's no evidence that would allow an inference that racial or gender bias can be imputed to the health care provider or the third party administrator, even though the argument was made by [c]counsel that the risk manager of the County "is in constant contact" with these vendors.

The theory is clearly understood to be that the conspiratorial effort was made from Director Aviles on down through risk management to Internal Affairs to trump up false charges that would only serve to frustrate the promotional process. The evidence to support that theory, however, is sorely lacking. The fact that the charges were eventually found to be without merit does not mean that they were brought on the basis of gender or race discrimination.

I am particularly persuaded by the . . . 20 to 25 percent statistics showing a consistent representation of white women in the general population of corrections officers, as well as each rank of sergeant, lieutenant and captain. Also, the rejection of other male candidates of various ethnic backgrounds, all based on discipline, clearly, disciplinary records play a huge part, along with attendance but more so discipline in the decision making process on promotions.

I find, therefore, that the record fails to support a prima facie case that [Stewart] had been bypassed twice for promotion and that these were based on racial and gender discrimination. That portion of the single count complaint that is based on a violation of LAD and the form of racial or gender discrimination specifically pointing to the promotion issue are dismissed . . . .

The balance of the complaint asserts claims of discriminatory retaliation in violation of both [LAD] and the Workers' Comp. Act. Both statutes protect an employee like Miss Stewart from retaliatory practices or adverse employment decisions that are made in retaliation for her lawful exercise of rights on her own behalf or those of others in the workplace.

Here, the theory is that in retaliation for years of filing grievances, advocating on behalf of other corrections officers, as well as herself, complaints of discrimination in the administration of transfers, post assignments, write ups, denial of transfer to the gang unit, et cetera, the County of Hudson engaged in a continuous pattern of retaliation against Miss Stewart in the form of transfers, refusals to grant post bids, meritless disciplinary charges and the like. There's ample evidence in the record to support any reasonable fact finder's determination or even an inference that this was what was actually afoot in the jail.

[W]hile reasonable minds might differ, there's enough in the record to present to a jury on the theory that she was singled out and retaliated against for exercising nothing but her legitimate rights as a member of the union, a one time officer of the union and a white female officer who's entitled to nondiscriminatory treatment. Therefore, that portion of the motion that seeks to . . . dismiss the retaliation complaint is denied.

Beginning with her October 2004 grievance and moving forward up to and including the recent disciplinary determination of May 2009, a jury could reasonably find that there was a systematic attempt by the County of Hudson to retaliate against her for her own grievances, as well as her efforts to advocate on behalf of others. So, for that reason, the motion is granted in part and denied in part. [Emphasis added.]

Regarding this ruling, the court instructed the jury as follows:

[P]rior to the conclusion of the trial I decided a motion. Because of the decision that I made you will no longer be required to consider or decide whether there's been a violation of the [LAD] based on gender or race discrimination. That's no longer a part of the case.

You will still be called upon to decide whether there's been a violation of that same law and/or the Workers' Compensation Act, in the form of retaliation by the County of Hudson against [Stewart].

The court defined the issues to the jury in the following language, in pertinent part:

Now I want to talk specifically about the issues in this case. First, [as to LAD] as it pertains to the claim of retaliation. [Stewart] . . . has charged that adverse employment decisions or actions made by her employer, the County of Hudson, regarding promotions, post assignments, disciplinary charges, transfers, and/or vacation time were taken or made because she had made complaints, filed grievances, and or filed a workers' compensation claim for benefits, and in so doing this constitutes retaliation. That is her claim. . . .

[I]n order to prove a claim under this retaliation provision of [LAD] the plaintiff must establish certain elements as follows.

First, she has to prove that she engaged in a protected activity. Second, she has to prove that the employer knew that she had engaged in the protected activity. Third, the plaintiff has to prove that she was thereafter subjected to an adverse employment decision by the employer. And finally, that there was a causal link between her engaging in the protected activity and the adverse action. Those are the four elements.

I'm going to instruct you now, that Ms. Stewart's exercise of her rights under the collective bargaining agreement at work to either file grievances or otherwise make complaints and/or request post assignments qualifies as a protected activity or protected activities for meeting the first prong of the test. Therefore to carry her burden she must move forward and prove the remaining three elements. . . .

Specifically now as to the Workers' Compensation Act retaliatory claim [Stewart] is also contending that adverse employment decisions and actions were made by her employer regarding her promotions, post assignments, disciplinary charges, transfers and vacation time. And they were made because she filed a claim for Workers' Compensation benefits against the employer under our New Jersey Workers' Compensation Act. The [Act] provides as follows. It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to their employment because the employee has claimed or attempted to claim Workers' Compensation benefits from such employer.

In order for Ms. Stewart to establish her claim she must prove by a preponderance of the evidence the following elements. Number one, that she did sustain an injury or injuries during the course of her employment. Number two, that she sought to claim[] benefits under the Workers' Compensation Act . . . . And third, that there is a causal relationship between her seeking or accepting the Workers' Compensation benefits and the adverse employment action alleged to have been taken. Specifically in this case, the denial of or the interference with her opportunity for promotion to the rank of sergeant.

[Emphasis added.]

The jury found Stewart violated LAD "by making adverse employment decisions or actions in retaliation for her having engaged in a protected activity" (emphasis added) and violated the Workers' Compensation Act "by making adverse employment decisions or actions in retaliation for her having sought or accepted workers' compensation benefits."

III.

The County first asserts error by the court in permitting two incidents of alleged retaliation to be considered by the jury even though they occurred more than two years before the complaint was filed -- Stewart's September l5 and October l7, 2004 grievances relating to her claims that she was forced to work on certain weekend days in violation of the CNA and was involuntarily reassigned to a female housing unit post because the supervisor did not want to assign a male officer to that unit. The gist of the argument is that the court misapplied the "continuing violations" doctrine of tolling in a non-hostile work environment case. According to the County, the inclusion of these grievances was prejudicial and resulted in a verdict against the weight of the evidence.

The statute of limitations for LAD claims is two years. Montells v. Haynes, 133 N.J. 282, 292 (l993). The "continuing violation doctrine" is an equitable exception to the statute of limitations for claims arising under anti-discrimination laws. Roa v. Roa, 200 N.J. 555, 566 (2010). A plaintiff who experiences a "continual, cumulative pattern of tortious conduct" may pursue an action if at least one of the discriminatory acts occurred within the statutory period. Ibid. (quotation omitted). However, the doctrine may not be used to revive an untimely claim that the victim knew or should have known was actionable. Id. at 569.

In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), the United States Supreme Court grappled with the nuances of the continuing violation doctrine in a case filed under Title VII of the Federal Civil Rights Act of l964 alleging retaliatory and discriminatory acts and a racially hostile work environment. Id. at 104, 122 S. Ct. at 2068, 153 L. Ed. 2d at 116. The Court distinguished between discrete discriminatory acts that, for limitations purposes, occur on the date each happens, and actions that are part of a pattern of conduct that collectively constitute one unlawful employment action accruing on the date on which the last component act occurred. Id. at 110-17, 122 S. Ct. at 2070-74, 153 L. Ed. 2d at 120-24. The Court explained:

[T]he statute precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period . . . [C]onsideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period. The application of equitable doctrines, however, may either limit or toll the time period within which an employee must file a charge. [Id. at 105, 122 S. Ct. at 2068, 153 L. Ed. 2d at 117 (emphasis added).]

Though an incident may be time-barred, the Court held that the federal statute does not bar "an employee from using the prior acts as background evidence in support of a timely claim." Id. at 113, 122 S. Ct. at 2072, 153 L. Ed. 2d at 122.

In Shepherd v. Hunterdon Developmental Center, 174 N.J. 1 (2002), our Supreme Court adopted Morgan's analytical framework in an LAD case alleging hostile work environment. In analyzing the statute of limitations issue, the Court posed the following questions for determination:

First, have plaintiffs alleged one or more discrete acts of discriminatory conduct by defendants? If yes, then their cause of action would have accrued on the day on which those individual acts occurred. Second, have plaintiffs alleged a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment? If yes, then their cause of action would have accrued on the date on which the last act occurred, notwithstanding "that some of the component acts of the hostile work environment [have fallen] outside the statutory time period." [Id. at 21 (emphasis added) (quoting Morgan, supra, 536 U.S. at 116, 122 S. Ct. at 2074, 153 L. Ed. 2d at 124.)]

In the present case, the court relied on the "continuing violation doctrine" articulated in Morgan and Shepherd in finding the two 2004 grievances to be admissible at trial. The court reasoned that the overall time frame was somewhat truncated in view of Stewart's absence from work because of workplace injuries from September 2005 to January 2006 and from December 2006 to May 2007. According to the court's ruling on the in limine motion, the incidents could be used as "background evidence" to demonstrate a pattern or continuing series of events occurring over time and involving the same subject, i.e., post reassignment.

Based on our review of the overall trial record, we are convinced the court erred in admitting evidence of Stewart's 2004 grievances. Standing alone, this would have been harmless error, but when considered in light of the other errors pertaining to the LAD, we are satisfied the cumulative effect had the capacity to taint the verdict and bring about an unjust result. It appears the court was under the erroneous impression when it made the ruling that Stewart was asserting a hostile work environment claim and, therefore, was inclined to afford Stewart the latitude of exploring the continuing violation doctrine based on her proffer of the evidence.*fn4 Moreover, at that juncture, Stewart's race and gender discrimination claims under the LAD were still in the case. However, at the close of Stewart's case-in-chief and upon the ensuing involuntary dismissal of her race and gender claims under the LAD, it was clear this was not a hostile work environment case and Stewart was not asserting a pattern of behavior collectively constituting one unlawful employment action so as to incorporate the 2004 incidents under the continuing violation doctrine. Rather, this was a case alleging retaliation under both the LAD and the Workers' Compensation Acts, and thus the discrete incidents underlying Stewart's grievances, which predated her lawsuit by more than two years, were time-barred. The jury, therefore, should have been instructed to disregard that evidence.

To compound the error, the jury charge was silent as to these incidents. The court's expressed intent was to allow the evidence in solely as "background evidence," but the jury was never informed of that fact. Instead, the jury was informed that Stewart claimed the County retaliated under the LAD "regarding promotions, post assignments, disciplinary charges, transfers, and/or vacation time . . . because she had made complaints, filed grievances, and/or filed a workers' compensation claim for benefits." Accordingly, the jury easily could have considered one or both of these incidents, which were outside of the two-year statute of limitations, as substantive proof of Stewart's LAD's retaliation claim, or it could have misperceived this as a hostile work environment case and combined one or both of these discrete, remote incidents with subsequent acts by the County to show animus towards Stewart on the part of the County.

Moreover, the court's next instruction points out the overall problem with the way the LAD retaliation issue was handled and submitted to the jury. We are not convinced Stewart established a prima facie case of retaliation under the LAD. Because the proofs were inextricably intertwined and the damages were not allocated between the LAD and the Workers' Compensation retaliation claims, the erroneous submission of issues under the LAD tainted the overall verdict. See Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 131 (1999) ("Because the issues of liability for the acts of 'upper management' are intertwined with the qualitative nature of the misconduct, the issues of both liability and damages should be retried.").

The court charged:

I'm going to instruct you now, that Ms. Stewart's exercise of her rights under the collective bargaining agreement at work to either file grievances or otherwise make complaints and/or request post assignments qualifies as a protected activity or protected activities for meeting the first prong of the test [to establish retaliation under the LAD]. Therefore to carry her burden she must move forward and prove the remaining three [elements as charged].

The LAD makes it unlawful for an employer to retaliate against an employee, defined as follows: to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act. [N.J.S.A. 10:5-12(d).]

To state "a prima facie case of retaliation, a plaintiff must show that 1) she was engaged in a protected activity known to defendant; 2) she was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two." Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. l996). See also Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995). Once the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a "legitimate, non-retaliatory reason" for the decision. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). The plaintiff must then demonstrate that a retaliatory intent, not the employer's stated reason, motivated the employer's action, which can be accomplished by proving the employer's articulated reason was merely a pretext for discrimination. Woods, supra, 290 N.J. Super. at 274; Jamison, supra, 290 N.J. Super. at 445.

"[A] person engages in a protected activity under the LAD when that person opposes any practice rendered unlawful under the LAD." Young v. Hobart W. Grp., 385 N.J. Super. 448, 466 (App. Div. 2005). See also Jamison, supra, 242 N.J. Super. at 445 ("Such an unlawful employment practice occurs when an employer, or an employee, for any reason, takes reprisal against another employee because the latter has challenged any practices or acts forbidden by the LAD[,]" citing N.J.S.A. 10:5-12(d)). As a starting point, protected activity, if involving a complaint, must concern discrimination. Reyes v. McDonald Pontiac-GMC Truck, 997 F. Supp. 614, 619 (D.N.J. l998) (finding that complaints stemming from "outbursts and name-calling" not sexual in nature do not suffice). "A general complaint of unfair treatment" does not suffice. Barber v. CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir. l995) (finding a letter to the employer expressing dissatisfaction over someone else receiving a promotion is not protected activity because it did not allege age discrimination).*fn5

The LAD prohibits unlawful employment practices and discrimination based, for the most part, on race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test . . . . [N.J.S.A. 10:5-12(a).]

The court expressly found Stewart failed to make a prima facie case that her bypass for both promotions were based on racial and gender discrimination and dismissed that portion of her complaint. None of Stewart's complaints or grievances expressed or filed within the statutory time period were couched in terms of LAD-based class membership. For example, Stewartalleged the County improperly reassigned her to different posts in violation of the seniority provision in the LAP agreement or denied her request to join the GIU in retaliation for her having "filed grievances." Contrary to the court's instruction to the jury, the general exercise of Stewart's rights under the CNA to file grievances, make complaints, or request post assignments unrelated to race or gender-based issues do not qualify as a "protected activity" under the LAD. Thus, Stewart failed to establish a prima facie case of retaliation under the LAD. Accordingly, Stewart was not entitled to a promotion or an award of damages for that claim. We thus vacate the verdict and the counsel fee award, which was predicated on the conclusion that Stewart was a prevailing party under the LAD. N.J.S.A. 10:5-27.1.

Although we reject Stewart's LAD claim, we acknowledge that a plaintiff has a common law cause of action based on alleged retaliatory employment decisions or actions attributable to the filing of a workers' compensation claim. See Lally v. Copygraphics, 85 N.J. 668, 670 (1981) (conferring a common law cause of action for compensatory and punitive damages upon an employee unlawfully discharged under N.J.S.A. 34:15-39.l for claiming workers' compensation benefits); Carter v. AFG Indus., Inc., 344 N.J. Super. 549, 553 (App. Div.), certif. denied, 171 N.J. 340 (2001). Accordingly, we remand for a new trial solely on Stewart's retaliation claim related to seeking benefits under the Workers' Compensation Act. We take no position as to Stewart's entitlement to a counsel fee award in the event she is successful on this claim, as that issue is not before us. In view of our opinion, we need not address the balance of the arguments raised by the County.

Reversed and remanded. We do not retain jurisdiction.


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