July 2, 2012
BELINDA SNOWDEN, PLAINTIFF-APPELLANT,
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, UNIVERSITY OF BEHAVIORAL HEALTH CARE SERVICES, MICHELLE MILLER, KARIMA BLANTON AND HOLLY EUSTACE, DEFENDANTS-RESPONDENTS.
BELINDA SNOWDEN, PLAINTIFF-APPELLANT,
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 97 UNION, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 plaintiff's failure to comply with the TCA's notice requirements, N.J.S.A. 59:8-8 and -9.
On March 31, 2010, plaintiff filed a motion on short notice for leave to file a third amended arbitration complaint, seeking to add a misrepresentation claim against the Union. This time she submitted a proposed amended complaint with her motion papers. In an April 9, 2010 order, the court denied the motion, holding that discovery had ended, and defendants would be prejudiced by the late amendment.
UMDNJ and the Union subsequently filed summary judgment motions to dismiss both complaints with prejudice. In its July 9, 2010 oral decision and orders, the court granted the motions. This appeal followed.
On appeal, plaintiff contends that the court erred in granting summary judgment on her CEPA claim. She argues that she had repeatedly complained about inadequate staffing in the Latency Unit, inadequate staffing violated both UMDNJ's internal three-to-one patient-to-staff ratio policy and the rules and regulations of the New Jersey Department of Health and Senior Services (DHSS), she was terminated for her whistleblowing activities, and UMDNJ's proffered reason for her termination was pre-textual.
In granting summary judgment, the court found that plaintiff failed to cite any constitutional provisions, statutes, administrative rules and decisions, or judicial decisions that UMDNJ allegedly violated,*fn5 and her claim that UMDNJ violated an internal policy was insufficient to prove a violation of a clear mandate of public policy. The judge concluded that plaintiff failed to establish a prima facie case of wrongful discharge under CEPA. We agree.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Coyne v. New Jersey Dep't of Transp., 182 N.J. 481, 491 (2005); Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).
To establish a prima facie case of wrongful discharge under CEPA based on a violation of public policy, a plaintiff must show the following:
(1) he or she reasonably believed that his or her employer's conduct was violating . . . a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. [Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]
Here, plaintiff's CEPA claim is based on N.J.S.A. 34:19-3a(1), which provides that
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care[.]
Plaintiff's CEPA claim is also based on N.J.S.A. 34:19-3c(1) and -3c(3), which provide that An employer shall not take any retaliatory action against an employee because the employee does any of the following:
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; [or]
(3) is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment.
The threshold question in a CEPA case brought under these sections is whether plaintiff has identified either a law, or a rule or regulation promulgated pursuant to law or a clear mandate of public policy concerning the public health, safety or welfare, which the employer has allegedly violated. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 181 (1998). "Sources of public policy include the United States and New Jersey Constitutions; federal and state laws and administrative rules, regulations, and decisions; the common law and specific judicial decisions; and in certain cases, professional codes of ethics." MacDougall v. Weichert, 144 N.J. 380, 391 (1996); see also Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J. 439, 444 (2004). "A vague, controversial, unsettled, or otherwise problematic public policy does not constitute a clear mandate." MacDougall, supra, 144 N.J. at 392.
Therefore, to determine whether a plaintiff has presented a viable CEPA claim, a trial court "must first find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true." Fineman v. New Jersey Dep't of Human Servs., 272 N.J. Super. 606, 620 (App. Div.), certif. denied, 138 N.J. 267 (1994); see also Dzwonar, supra, 177 N.J. at 463. Accordingly, if the plaintiff fails to identify a clear mandate of public policy, there is no need to consider whether plaintiff has presented evidence that would support a finding that he or she "reasonably believed" defendant's conduct violated public policy. See Mehlman, supra, 153 N.J. at 181; MacDougall, supra, 144 N.J. at 391. Whether a plaintiff has identified a clear mandate of public policy is a question of law which the court must decide before submitting a CEPA claim to a jury. Mehlman, supra, 153 N.J. at 187.
We conclude that summary judgment was properly granted on plaintiff's CEPA claim. She did not identify either to the trial court or to this court any law, rule or regulation promulgated pursuant to law, or clear mandate of public policy concerning the public health, safety or welfare, that UMDNJ violated. Her allegation that UMDNJ violated its internal staffing policy was insufficient to prove a prima facie CEPA claim. See Klein v. UMDNJ, 377 N.J. Super. 28, 42 (App. Div.), certif. denied, 185 N.J. 39 (2005) (holding that CEPA "is not intended to shield a constant complainer who simply disagrees with the manner in which the hospital is operating one of its medical departments, provided the operation is in accordance with lawful and ethical mandates"). Plaintiff, thus, failed to present a viable CEPA claim as a matter of law. See Fineman, supra, 272 N.J. Super. at 620.*fn6
Plaintiff contends that the court erred in granting summary judgment on her NJLAD hostile work environment claim based on race. She asserted that soon after she began working under Miller in 2005, Miller said to her, "You know what your problem is, you don't know your limits, but I'm going to teach them to you." She argues that this statement was a "racially charged statement and a racial epithet" because it "was the equivalent of telling this African-American employee that she did not know her place and had the same historical connotation of you better stay in your place." She also argues that the statement was "severe and pervasive enough to make a reasonable African-American believe that the conditions of employment had changed and that the work environment had become hostile[.]"
In granting summary judgment, the court found that plaintiff did not inquire about what the statement meant or report it to anyone, and there was no evidence she was treated differently after Miller allegedly made the statement or that the workplace changed or became hostile. The judge concluded that pursuant to Taylor v. Metzger, 152 N.J. 490 (1998), plaintiff failed to establish that Miller's single statement was severe and pervasive and created a hostile work environment.
The NJLAD prohibits discrimination "because of race, creed, color, national origin, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, disability or nationality." N.J.S.A. 10:5-3. When an African-American employee alleges racial harassment under the LAD, she must demonstrate that the defendant's conduct (1) would not have occurred but for the employee's [race]; and [the conduct] was
(2) severe or pervasive enough to make a (3) reasonable [African American] believe that
(4) the conditions of employment are altered and the working environment is hostile or abusive. [Taylor, supra, 152 N.J. at 498 (internal citations and quotation marks omitted).]
"[O]ne incident of harassing conduct can create a hostile work environment," so long as the incident was "severe or pervasive." Id. at 499. The applicable standard is that of a reasonable person in the plaintiff's position. Id. at 500.
"'[I]t will be a rare and extreme case in which a single incident will be so severe that it would . . . make the working environment hostile.'" Ibid. (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 606-07 (1993)). When a case is presented on a motion for summary judgment, the court must decide "whether a rational factfinder could reasonably determine on the basis of plaintiff's evidence that the racial insult directed at her . . . was, under the surrounding circumstances, sufficiently severe to have created a hostile work environment." Ibid. "The connotation of the epithet itself can materially contribute to the remark's severity. Racial epithets are regarded as especially egregious and capable of engendering a severe impact." Id. at 502.
We conclude that Miller's statement did not have "an unambiguously demeaning racial message that a rational factfinder could conclude was sufficiently severe to contribute materially to the creation of a hostile work environment." Id. at 502-03. Miller's statement about teaching plaintiff her place was not a clear racial slur. Considering that plaintiff had violated patient confidentiality and lacked de-escalation skills, the statement appears to have had a valid basis. In any event, it was insufficient to establish a NJLAD hostile work environment claim based on race.
Plaintiff contends that the court erred in denying her two motions for leave to file a third amended discrimination complaint to re-plead her federal age, gender and disability discrimination claims under the NJLAD, and in denying her motion for leave to file a third amended arbitration complaint to add a misrepresentation claim against the Union. We review the denial of a motion to amend under the abuse-of-discretion standard. Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998). We discern no abuse of discretion here.
After a responsive pleading has been served, a party may amend a pleading "by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." R. 4:9-1. "A motion for leave to amend shall have annexed thereto a copy of the proposed amended pleading." Ibid. (emphasis added). Plaintiff did not annex a copy of the proposed amended pleadings to her two motions for leave to file a third amended discrimination complaint. Accordingly, the motions were procedurally defective and properly denied.
In addition, nearly one year had elapsed between the filing of plaintiff's second motion for leave to file a third amended discrimination complaint and the filing of her first motion, and, she filed her first motion two years after filing her initial discrimination complaint. Plaintiff also filed her motion for leave to file a third amended arbitration complaint over eighteen months after filing her initial arbitration complaint, and after discovery, which had been extended numerous times, had ended. Under these circumstances, and even in light of the liberal requirements of Rule 4:9-1, we cannot find that the court abused its discretion in denying the motions to amend.
Plaintiff contends that the court erred in granting summary judgment on her tort claims against UMDNJ in the discrimination complaint based on her failure to comply with the TCA's notice requirements. She argues that her first attorney's April 17, 2006 letter to UMDNJ substantially complied with the TCA's notice requirement. The court rejected this argument, and so do we.
A claimant may not bring an action against a public entity or public employee under the TCA unless he or she complies with the TCA's notice requirements. N.J.S.A. 59:8-3, 59:8-4, 59:8-8. The purpose of the notice requirement is (1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense[;] (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and
(4) to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet. [Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) (internal quotation marks and citations omitted).]
A notice of claim must include specific information, including a general description of the injury, damage or loss. N.J.S.A. 59:8-4. A claimant must file a notice of claim with the public entity within ninety days of the accrual of his claim. N.J.S.A. 59:8-8. However, a literal interpretation of N.J.S.A. 59:8-8 should be avoided where a claimant substantially provided the information specified in N.J.S.A. 59:8-4 and afforded the public entity an ample basis for the investigation and evaluation of the information as contemplated by N.J.S.A. 59:8-8. Henderson v. Herman, 373 N.J. Super. 625, 636-37 (App. Div. 2004).
A claimant who fails to timely file a notice of claim may in the court's discretion be permitted to file such notice at any time within one year after the accrual of the claim "provided that the public entity or the public employee has not been substantially prejudiced thereby." N.J.S.A. 59:8-9. The claimant must apply to the court for permission to file a late notice of claim by motion supported by an affidavit showing sufficient reasons constituting extraordinary circumstances for the failure to timely file the notice of claim or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter. Ibid. Since the TCA does not define what circumstances are to be considered extraordinary, the court is required to make a case-by-case determination as to whether the claimant's reasons rise to the level of extraordinary on the facts presented. Allen v. Krause, 306 N.J. Super. 448, 455 (App. Div. 1997).
We review the denial of a motion to file a late notice of claim under an abuse-of-discretion standard. McDade v. Siazon, 208 N.J. 463, 476-77 (2011). However, this discretion is limited to cases in which the claimant's affidavit shows sufficient reasons constituting extraordinary circumstances for the delay and there is no substantial prejudice to the public entity. Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 456 (App. Div. 2008).
Here, plaintiff's first attorney's letter contained no information about any claims other than discrimination claims. The letter, thus, did not substantially comply with the TCA's notice requirements as to plaintiff's tort claims. Apparently realizing this deficiency, plaintiff's second attorney filed a motion for leave to file a late notice of claim. The court properly denied the motion because plaintiff gave no reasons, let alone sufficient reasons constituting extraordinary circumstances, for her failure to timely file a notice of claim. Accordingly, the court properly granted summary judgment on plaintiff's tort claims.
Plaintiff contends that the court erred in granting summary judgment on her breach of the duty of fair representation claim against the Union, and granting summary judgment on her bad faith claim against UMDNJ. We have considered these contentions in light of the record and applicable legal principles, and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons the court expressed in its comprehensive and well-reasoned July 9, 2010 oral decision. However, we make the following brief comments.
The employee's burden in proving unfair representation is not light. Maher v. N.J. Transit Rail Operations, 125 N.J. 455 478 (1991).
[A] plaintiff must "adduce substantial evidence of [bias] that is intentional, severe, and unrelated to legitimate union objectives." The court must be careful to distinguish "between honest, mistaken conduct . . . and deliberate and severely hostile and irrational treatment." [Ibid. (quoting Amalgamated Ass'n of Street, Electric Ry. & Motor Coach Emp. of Am. v. Lockridge, 403 U.S. 274, 301, 91 S. Ct. 1909, 1925, 29 L. Ed. 2d 473, 491 (1971)).]
Proof that the union "may have acted negligently or exercised poor judgment is not enough[.]" Bazarte v. United Transp. Union, 429 F.2d 868, 872 (3d Cir. 1970). The employee must present proof of bad faith or arbitrary conduct. Ibid. "[A] union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a 'wide range of reasonableness,' Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953), as to be irrational." Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 67, 111 S. Ct. 1127, 1130, 113 L. Ed. 2d 51, 58 (1991).
The record in this matter does not establish that the Union acted in bad faith, intentionally, arbitrarily, or discriminatorily; rather, the evidence establishes that the Union did all that was required of it to properly represent plaintiff. There also is no evidence that the Union's conduct caused plaintiff any damages.