On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1043-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2012
Before Judges Fuentes, Graves and J.N. Harris.
Plaintiff Sheryl Lozo-Weber appeals from a summary judgment order dated March 4, 2011, dismissing her complaint. For the reasons that follow, we affirm in part and reverse in part.
Plaintiff, a Caucasian female, was employed by the Department of Human Services (DHS) as a principal occupational therapist at the New Lisbon Developmental Center (NLDC) from November 2003 to April 2009. In January 2004, plaintiff began exhibiting symptoms of lupus, which included "red bumps on [her] skin" and feeling "very fatigued." Plaintiff stated that the red bumps did not affect her work and the fatigue interfered "a little bit," but "it didn't stop [her] from working." Plaintiff was diagnosed with lupus in July 2004.
Plaintiff alleged in her complaint that throughout her employment at NLDC, she "noticed [that d]efendants discriminated against African[-]American and other minority employees." Plaintiff's first supervisor at NLDC was Turner, an African-American female. Soon after plaintiff was hired, Turner was suspended because of allegations that she falsified patient evaluations and missed certain deadlines. At that time, plaintiff did not feel that Turner's suspension was discriminatory, but following subsequent incidents, she "saw a pattern" and "knew [Turner's suspension] was more than work performance." When Turner was suspended, plaintiff claims she "supported" Turner by telling other NLDC employees that Turner was "an excellent therapist" and that the stated reasons for her suspension were "false."
Defendant Brian Kelly, a Caucasian male, became plaintiff's supervisor in the summer of 2004 following Turner's suspension. Beth Cooper, a Caucasian female, was an occupational therapist with plaintiff but acted as an unofficial "liaison" between Kelly and staff.
In August 2004, an African-American employee named Quinones was suspended for allegedly sleeping while at work. Plaintiff was "not sure" whether Quinones's suspension was motivated by race, but she believed he was suspended because "he was verbally supporting [Turner]" and "[h]e would speak out about how wrong it was for her to be suspended." For example, during a conversation in the office parking lot, Quinones expressed his belief to plaintiff and several other employees that Turner's suspension could have been motivated by her position at NLDC or her race.
In October 2004, an African-American occupational therapist named Jacob was fired. Plaintiff described Jacob as "an excellent occupational therapist." Plaintiff believed that Jacob's firing was discriminatory because Cooper told plaintiff that she and Kelly "suspected that [Jacob] was conversing with [Turner]." Plaintiff also overheard a Caucasian employee make the comment, "two down, some more to go," referring to Turner's suspension and Jacob's firing.
Additionally, Kelly was notified in October 2004 that Simon-Moise, an NLDC employee of Haitian descent, and Quinones had filed discrimination complaints against him with DHS's Equal Employment Opportunity Officer.
In November 2004, five NLDC employees were relocated to an office building that, according to plaintiff, did not have air conditioning, computers, or phones. Those employees were Simon-Moise; Sulit, an Asian male; Galang, an Asian female; Kudar, a Caucasian male; and Rizzo, a Caucasian male. Plaintiff believed the relocation was "motivated by these individuals' race because the action of moving all these employees had the effect of creating a nearly all-white physical therapy office, with the exception of a single Asian independent contractor." Also, plaintiff stated during her deposition that she believed the relocation was discriminatory because of certain "[c]omments that were made" by NLDC staff. For example, plaintiff alleged that following the relocation, Cooper said, "Now they're all cleaned out, we can have peace in this office." Plaintiff further alleged that she was told by a co-worker that Cooper had said "that she would like the rehab department to be all white." When plaintiff asked Kelly why the employees had been relocated, he "wasn't able to tell" her.
Soon thereafter, Galang was fired. Plaintiff believed that Galang's dismissal was discriminatory because she was "part of the group" that had been relocated in November 2004, and because "she worked closely with that group of people." Plaintiff also stated during her deposition that, in general at NLDC, there were "a lot of verbal sarcastic things said out loud in her presence" that referred to race or national origin, but she could not "recall all of them."
Plaintiff believed that Kelly "operate[d] in a discriminatory manner" because "the people that got suspended, fired and removed were . . . part of the minority, and the Caucasian people in the office were permitted to do things that . . . they should have gotten in trouble for, but never did." For example, a Caucasian male employee "would curse out loud" and told plaintiff to "shut the F up" in front of Kelly with no consequence. In addition, no disciplinary action was taken against a Caucasian female employee who, like Quinones, fell asleep at work. According to plaintiff, pictures of this employee sleeping were "the joke of the office," and Kelly "would just shake his head and laugh" when he saw them.
Plaintiff claims that she "voiced [her] opinion on how [she] did not think that this was right to numerous people in the office," including Kelly and Cooper, although she did not explicitly use the word "discrimination." During one conversation in particular, Cooper told plaintiff that Kelly had said that plaintiff "needed to align herself with the right side." Cooper also warned plaintiff to "stay away from" Quinones.
Plaintiff was on disability leave from November 14, 2004, to sometime in March 2005. On April 27, 2005, Kelly completed plaintiff's annual performance review for the period of March 1, 2004, through February 28, 2005. Kelly gave plaintiff a "pass" (the highest option available) in all fourteen performance categories, and he gave her a "final evaluation rating" of "satisfactory" (the highest option available). Kelly also noted that plaintiff had "exceeded all job requirements."
Sometime in 2005, plaintiff made her first written complaint to Kelly. In an email, plaintiff informed Kelly that she had a "humongous workload," that she was "asked to do special projects at the same time," that her work was "constantly being audited," and that she was "falsely told" that there were "problems" with her work. Plaintiff also made a verbal complaint to Cooper regarding similar problems.
Plaintiff was on maternity leave and then disability leave due to lupus from February 14, 2006, to August 31, 2006. On October 12, 2006, Kelly completed plaintiff's annual performance review for the period of March 1, 2005, through February 28, 2006. Once again, plaintiff received the highest possible rating in all of the performance categories and an overall "satisfactory."
At some point, plaintiff was approached by Quinones and asked if she "would be willing to speak with his attorney" regarding "the move of everybody" and what she "witnessed while working" at NLDC. Plaintiff agreed to do so and during that meeting she discussed her concerns regarding the treatment of minority employees.
On October 30, 2006, Simon-Moise, Turner, Quinones, Jacob, and Sulit (the Simon-Moise plaintiffs) filed a lawsuit against DHS, NLDC, Kelly, and Cooper alleging discrimination and retaliation in violation of the LAD (the Simon-Moise lawsuit).*fn1
Plaintiff's name was explicitly mentioned in the complaint, most notably in paragraph eighty, which stated:
[Cooper] continued to police the activities of all employees. In or about August 18, 2004, [Cooper] told Sherry Lozo-Weber that administration is talking about the blonde in OT [occupational therapy] who talks to ... Quinones and that she [Cooper] hopes that when it comes ...