On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-1734-07 and L-10026-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012
Before Judges Payne, Reisner and Simonelli.
Plaintiff Belinda Snowden appeals from the July 9, 2010 Law Division orders, which (1) granted summary judgment to defendants University of Medicine and Dentistry of New Jersey (UMDNJ), University Behavioral Health Care Services (UBHCS), Michelle Miller (Miller), Karima Blanton (Blanton) and Holly Eustace (Eustace), in the matter bearing Docket No. ESX-L-1734-07,*fn1 and dismissed the second amended complaint with prejudice; and (2) granted summary judgment to UMDNJ and defendant International Brotherhood of Teamsters, Local 97 Union (the Union) in the matter bearing Docket No. ESX-L-10026-08,*fn2 and dismissed the second amended complaint and UMDNJ's cross-claim against the Union with prejudice. Plaintiff also appeals from the May 1, 2009 and March 26, 2010 orders, which denied her motions to file a third amended discrimination complaint, and the April 9, 2010 order, which denied her motion to file a third amended arbitration complaint. We affirm all orders.
The following procedural history and facts are pertinent to our review. In November 2002, plaintiff, an African-American, began her employment with UMDNJ as a per diem Mental Health Specialist IV. She became a full-time employee in that position in March 2004, and in April 2004, she began working at UBHCS.
In September or October 2004, plaintiff was promoted to Mental Health Specialist II. In February 2005, she was transferred to the Child and Adolescent Inpatient Services Unit (CAISU), a residential unit for children ages four to eighteen who suffered from psychiatric illness and required twenty-four-hour in-patient care. She worked under the supervision of Miller, a Caucasian, in the Latency Unit of the CAISU, which housed children ages four to twelve. According to UMDNJ's policy, there should be a three-to-one patient-to-staff ratio in the CAISU. Staff included certified teachers, clinicians, psychiatrists, nurses, and mental health specialists. Occasional staff shortages affected the ratio.
Plaintiff did not successfully complete her initial probationary period for the Mental Health Specialist II position because she had violated patient confidentiality and had poor de-escalation skills. She eventually completed the probationary period, and remained in this position in the Latency Unit until her discharge in March 2006.
On March 3, 2006, plaintiff was caring for five children. On that day, Eustace, plaintiff's co-worker, reported to Blanton, plaintiff's supervisor, that she saw plaintiff restrain mentally disturbed ten-year-old patient, T.K., face down on a bed with his arms pinned behind his back, scold the child for scratching her, and slap his cheek with her open hand. T.K. later confirmed to Blanton and an investigator that plaintiff had restrained and slapped him. Blanton reported the incident to Miller, Blanton's supervisor.
Following an investigation, plaintiff was charged with patient assault, and later terminated, effective March 16, 2006. She met with a Union representative prior to her termination, who timely filed a grievance on her behalf, and later requested arbitration. She also retained an attorney, who notified UMDNJ in an April 17, 2006 letter that plaintiff would pursue a whistleblower claim, and federal and state race, gender, age and disability discrimination claims if the matter was not amicably resolved.
Prior to the arbitration, on February 27, 2007, plaintiff filed the discrimination complaint. The complaint is not in the record on appeal; however, plaintiff states in her merits brief that she asserted claims under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -42, and "the Civil Rights Act and various common law claims."
Also in February 2007, plaintiff, now represented by a different attorney, filed a motion for leave to file a late notice of tort claim pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. In a March 16, 2007 order, the court denied the motion, concluding that N.J.S.A. 59:8-9 required a showing of sufficient reasons constituting extraordinary circumstances for failing to timely file a notice of claim, and plaintiff did not address this requirement in her motion papers.
The arbitration commenced on March 1, 2007. In March 2007, plaintiff filed a first amended discrimination complaint, asserting claims under CEPA, the NJLAD (race discrimination), the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621 to 634, the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213, and Title VII of the Federal Civil Rights Act of 1964,*fn3 42 U.S.C.A. §§ 2000e to 2000e-17 (race and gender discrimination). She also asserted the following tort claims: slander, libel, intentional infliction of emotional distress, and intentional interference with prospective economic advantage. By leave granted, in July 2008, plaintiff filed a second amended discrimination complaint, adding additional counts for race and gender discrimination under Title VII of the Federal Civil Rights Act of 1964 and the Federal Civil Rights Act of 1991.
In a comprehensive April 7, 2008 written decision, the arbitrator denied plaintiff's grievance, finding there was just cause for plaintiff's termination. Plaintiff was terminated, effective March 16, 2006. In June 2008, she filed a motion under the discrimination complaint to vacate the arbitrator's decision, which the court denied in a July 25, 2008 order.
In August 2008, plaintiff filed the arbitration complaint, seeking to vacate the arbitrator's decision pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, and the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:2B-1 to -32. Plaintiff alleged, in part, that the arbitrator was not impartial because she had a business relationship with an attorney who was a trustee of UMDNJ's Foundation.
By leave granted, in December 2008, plaintiff filed a first amended arbitration complaint, containing substantially the same allegations as the original complaint, but adding a cause of action pursuant to N.J.S.A. 2A:24-1 to -11 governing the arbitration of collective bargaining agreements. In December 2008, plaintiff also filed a motion for reconsideration of the July 25, 2008 order, which denied her motion to vacate the arbitration award. In a February 6, 2009 order, the court denied the motion, and consolidated the discrimination and arbitration complaints, among other things.
In April 2009, plaintiff filed a motion for leave to file a third amended discrimination complaint to re-plead her federal discrimination claims under the NJLAD. Plaintiff did not submit a proposed amended complaint with her motion papers. The court denied the motion in a May 1, 2009 order because it "[could] not tell by [the] certification of counsel for plaintiff what new facts or new causes of action are being added or not and for what reason."
By leave granted, in September 2009, plaintiff filed a second amended arbitration complaint. She abandoned her request to vacate the arbitration award, and instead sought damages against UMDNJ for breach of the collective bargaining agreement and the implied covenant of good faith and fair dealing, and against the Union for breach of its duty of fair representation.
On March 17, 2010, plaintiff filed a motion on short notice for leave to file a third amended discrimination complaint to add a claim of malicious prosecution against UMDNJ.*fn4 Plaintiff did not submit a proposed amended complaint with her motion papers. In a March 26, 2010 order, the court denied the motion, holding that the claim was barred by ...