On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4369-09.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter, Maven and Carchman.
The opinion of the court was delivered by CARCHMAN, J.A.D. (retired and temporarily assigned on recall).
This interlocutory appeal, where we review the propriety of the appointment of a discovery master based on extraordinary circumstances under Rule 4:41-1, requires us to reconcile and harmonize two significant policies: 1) the continuing need for and use of available tools and procedures to ensure that litigation is conducted in an orderly and efficient manner to achieve a just result; and 2) the recognition and safeguarding of unfettered judicial access for litigants prosecuting remedial actions brought pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.
While these two policies generally partner well, where the posture of the litigation warrants the use of a discovery master, these policies may conflict. We conclude that in actions brought pursuant to the LAD and CEPA, in finding extraordinary circumstances as grounds for appointing a discovery master, the trial judge must consider the remedial nature of the LAD and CEPA litigation as well as the ability of litigants to absorb the costs of such relief. The judge must consider that the appointment of a discovery master in fee- shifting remedial cases, which by their very nature oftentimes involve litigants with limited resources, may impose a cost burden on litigants that creates a de facto bar to their access to the justice system. The trial judge failed to consider these factors here. Accordingly, we reverse and remand.
We briefly summarize the alleged facts, as they provide a window into the tone and tenor of the litigation. Needless to say, these facts are sharply contested.
Plaintiff Catherine Zehl claims that she was wrongfully discharged from her position as a cook-manager for defendant City of Elizabeth Board of Education (the Board). In her CEPA claim, plaintiff alleges that: 1) Marvelis Perreira, a teacher at School No. 19, acted unlawfully, implicating student safety; and 2) pest infestation in the school kitchen at Board School No. 6 caused unsafe and unsanitary conditions. Plaintiff also asserts in her LAD claim that she suffered disability discrimination because she was discharged for her alleged occupational non-allergic asthma, which was caused by the pest infestation. Plaintiff filed an additional claim alleging worker's compensation retaliation.
Plaintiff was hired by the Board in December 1993 as a lunch aide. She received several promotions, most recently to the position of cook-manager at School No. 19. In November 2008, she observed that Perreira had left her classroom of fifth-grade students without supervision. Plaintiff monitored the children, and upon Perreira's return to the classroom, plaintiff returned to her work. In January 2009, plaintiff was called to the Board office, where Robert Stigliano, an investigating officer, questioned her about the Perreira incident. Apparently, the investigation was triggered by an anonymous letter to the superintendent that discussed plaintiff's observation that Perreira left her classroom unattended. Plaintiff was the only person who corroborated the allegation in the anonymous letter.
Perreira's husband, Paul Perreira, is or was a member of the Board. Perreira is a cousin of Carlos Trujillo, who is or was President of the Board. Perreira has a close personal relationship with former Board President Rafael Fajardo. Plaintiff asserts that because of these various relationships, Perreira avoided discipline for her misconduct. Plaintiff further claims that her own subsequent discharge derived from her having reported Perreira's behavior.
Four days after plaintiff's interview with Stigliano, plaintiff was transferred to School No. 6. Plaintiff alleges that schools such as School No. 6, that are located in high- crime areas and are in poor physical condition, are places to which the Board routinely sends employees who have fallen out of favor with the administration. According to plaintiff, the kitchen and stockroom of School No. 6 were infested with mice, gnats and cockroaches, and rodent feces littered both rooms. By February 2009, plaintiff developed a severe allergy to mice feces, for which she received medical treatment.
In the spring of 2009, plaintiff received a positive performance evaluation from Margaret Reese, her supervisor at School No. 6. Plaintiff asked for and received a transfer to School No. 14 in April 2009.
On May 6, 2009, Jaime Leavitt, the Supervisor of Food Services for the Elizabeth School District, recommended that plaintiff be "non-renewed." Thereafter, plaintiff was asked to sign a disciplinary warning notice Leavitt had prepared, which acknowledged that plaintiff had failed to report to an employee, Glenda Harris, that plaintiff had been absent because of illness. Plaintiff also received a poor evaluation from Leavitt for her performance at School No. 19. One month later, plaintiff was ...