On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3351-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Simonelli and Hayden.
Plaintiff, Carla Shaw, an African-American, appeals from the October 8, 2010 order granting summary judgment to defendants and dismissing plaintiff's claims of creation of a hostile work environment, retaliation, disability discrimination, and intentional infliction of emotional distress. Having considered the record in light of the applicable legal principles, we affirm.
Viewed most favorably to plaintiff, see Rule 4:46-2(c), Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment motion record discloses the following facts. Plaintiff worked for Federal Express Corporation (hereinafter FEC) from January 1989 until April 2006. FEC, incorporated in Delaware in 1971, has a place of business at Newark Liberty International Airport and is a wholly-owned subsidiary of defendant FedEX Corporation (FDX).*fn1
In the early 1990s, plaintiff and defendant Cyndina Hicks began working together at FEC. They were co-workers; neither had supervisory or managerial authority over the other. In addition, they became friends and interacted socially in and out of the office for many years. For example, plaintiff attended a birthday party for Hicks' son. The last out-of-work social interaction plaintiff recalled having with Hicks occurred in 2004 or 2005, when she invited Hicks to her housewarming party. According to plaintiff, she and Hicks also spoke on the phone outside of work. For example, when plaintiff was home on sick leave for three months in 2005, Hicks called her at least once every two weeks.
However, the friendship was stormy, with periods when the women were friendly, interspersed with periods when they did not speak to each other. In addition, plaintiff complained that Hicks repeated personal information she learned from plaintiff to others at work and said disagreeable things about her to other employees. At times when they were not getting along, plaintiff complained to her supervisor that Hicks was bullying her.
Starting in 2003, plaintiff and Hicks began engaging in loud, disruptive arguments at work. Plaintiff perceived that Hicks instigated the arguments and verbally harassed her by using epithets such as "retarded" and "monkey." At that time, defendant Veronica Payne was the immediate supervisor of plaintiff and Hicks. Payne and Hicks also are African-Americans. After viewing the interchanges between the women, Payne issued both Hicks and plaintiff letters of counseling on January 10, 2003. The letter to plaintiff provided in part:
[T]his counseling is in direct response to the ongoing conflicts that have continued between Cyndina Hicks and you. For various reasons your relationship with Cyndina has deteriorated beyond repair. Unfortunately you both appear to harbor bad feelings towards each other which has made for a stressful work environment.
The letters also warned both parties that future episodes of
misconduct could lead to disciplinary action, including termination.
That day, Payne also met with plaintiff, Hicks and a human resources
representative to urge the two co-workers to resolve their
disagreements. Plaintiff did not appeal the counseling or file an
internal Equal Employment Opportunity (EEO) complaint*fn2
alleging that Hicks' harassment was racially motivated.
In February 2005, plaintiff was injured in a car accident, causing her to take a short-term disability leave through May 2005. When she returned to work, her doctor cleared her for full duty. Plaintiff was then assigned to another department, where Bob Stewart became her supervisor. In September 2005, due to injuries from a fall at home, plaintiff's doctor provided written clearance for her to return to work with lifting restrictions of fifty pounds. However, her position at the time did not entail lifting over fifty pounds.
On October 14, 2005, Stewart issued plaintiff a Performance Reminder Letter for erroneously shipping boxes to the wrong country. Plaintiff did not appeal the warning through the established company complaint process,*fn3 though the letter advised her of this option.
On November 16, 2005, Stewart issued plaintiff another Performance Reminder Letter, this time for excessive tardiness. Stewart informed plaintiff in the letter that, since this warning constituted her second disciplinary action, she might be terminated if she received a third letter within the next twelve months. Plaintiff did not appeal this warning through the GFTP.
Additionally, in November 2005, FEC eliminated plaintiff's position through internal restructuring, and plaintiff had a thirty-day opportunity to find a position for which she qualified. Plaintiff accepted an international export cage agent position without looking at the online job description, which stated that the position required the ability to lift seventy-five pounds and to maneuver one hundred and fifty pounds. These requirements exceeded her lifting restrictions.
Payne again became plaintiff's direct supervisor in the new position, which also entailed regular contact with Hicks.
Plaintiff had not mentioned her lifting restrictions to Payne when starting her new position since her doctor's written restrictions were on file in the human resources department. In early April 2006, when Payne first became aware of plaintiff's lifting restrictions, she realized that plaintiff did not qualify for her current position. On April 15, a few days after Payne contacted the human resources department, a representative instructed Payne to follow the company policy of placing ...