On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-558-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Nugent.
Plaintiff Yoganand Kumar commenced this action, pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, claiming, among other things, that defendants retaliated against him because of a settlement of his prior LAD claim. He now argues in this appeal that summary judgment was inappropriately entered against him. We find no merit to plaintiff's arguments because his transfer from his employer's Gloucester office to its Salem office cannot, as a matter of law, constitute adverse employment action.
Because the ground upon which we affirm is narrow, we need only briefly outline the circumstances that gave rise to this suit. In December 2005, plaintiff and his employers --defendants Department of Children and Family Services and Division of Youth and Family Services (DYFS) -- settled plaintiff's first LAD action. Their settlement agreement called for, among other things, plaintiff's "return back to DYFS in the capacity of an FSS [Family Service Specialist] Trainee position at the Gloucester District Office." Pursuant to the settlement, in early 2006, plaintiff began working in DYFS's Gloucester office under the supervision of defendant Susan Mammoccio. She claimed in this action that she had no prior knowledge about plaintiff, his earlier lawsuit, or its settlement. According to Mammoccio, plaintiff behaved bizarrely, bringing her unwanted gifts of food, drink, cigars, a large chicken, and a cooler full of crabs and shrimp. Plaintiff also made sexual remarks, commenting on Mammoccio's dress and appearance in front of co-workers and during court appearances, suggesting she was wearing tight or overly-revealing clothing.
On June 27, 2006, Mammoccio emailed her supervisors, advising of what she believed was plaintiff's inappropriate behavior and remarks. The email refers to her having made earlier complaints; she stated she had not supplied the further detail her supervisors requested when she previously complained because she was desirous of giving plaintiff a second chance. Mammoccio also stated in the email that she realized her earlier reticence had been a mistake because plaintiff's inappropriate behavior had continued; she asked for directions regarding what had to be done in order to "fail" plaintiff during his probationary period.
In September 2006, Mammoccio was reassigned and ceased being plaintiff's supervisor; notwithstanding, plaintiff continued to act inappropriately with respect to Mammoccio. For example, on March 16, 2007, an employee informed Mammoccio that plaintiff told another employee that he intended to invite Mammoccio and her cousin, who also worked in the Gloucester office, to visit him in Atlantic City, get them drunk, and have sexual relations with them. Mammoccio testified at her deposition that plaintiff did, in fact, call her and invited her and her cousin to Atlantic City at that time. An internal investigation resulted in a recommendation that plaintiff be directed to cease and desist from contacting staff outside the workplace and that he be monitored to ensure his compliance with departmental policies.
In May 2007, however, Mammoccio notified the investigator that plaintiff had continued to harass her and told other employees that he was out to get Mammoccio and intended to file a complaint against her. According to Mammoccio, in June 2007, plaintiff approached Mammoccio's two-and-one-half year old daughter, who was in the office, handed her a candy bar and told her to give it to Mammoccio. As a result, plaintiff was directed to have no further contact with Mammoccio but, according to Mammoccio, he approached and spoke to her on a number of subsequent occasions.
Ultimately, Mammoccio submitted a formal internal complaint and, soon thereafter, a discrimination complaint with the New Jersey Department of Personnel, alleging plaintiff was sexually harassing her; she included in her complaints, among other things, details of the Atlantic City matter. Mammoccio's cousin also filed a complaint. As a result, plaintiff was transferred to DYFS's Salem office in Carney's Point.
Plaintiff commenced this action in 2009, claiming a violation of the LAD -- based on alleged retaliation for his prior LAD action -- as well as breach of contract and tort claims. Upon the completion of discovery, defendants filed a motion for summary judgment that was granted on January 26, 2011.
Plaintiff appealed, presenting the following arguments:
I. KUMAR RAISED A QUESTION OF FACT AS TO WHETHER THE DIVISION INTENDED TO RETALIATE AGAINST HIM FOR PREVIOUSLY FILING A DISABILITY DISCRIMINATION COMPLAINT WHERE IT APPEARS TO HAVE DEVISED A SCHEME TO FAIL HIM SHORTLY AFTER HIS ASSIGNMENT TO THE GLOUCESTER OFFICE WHICH WAS FOLLOWED BY A PATTERN OF ANTAGONISM TOWARDS HIM.
II. AN ADVERSE EMPLOYMENT ACTION OCCURS WHERE THE RETALIATION AFFECTS ADVERSELY AN EMPLOYEE'S EMPLOYMENT STATUS AND ...