On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-632-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011 Before Judges A. A. Rodriguez and Sabatino.
Plaintiff Yuan Fang, an employee of the New Jersey Department of Transportation ("DOT"), appeals the trial court's dismissal of her amended Law Division complaint alleging that defendants, the DOT and two DOT supervisors, retaliated against her in violation of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14. Applying the Supreme Court's recent opinion in Winters v. North Hudson Regional Fire and Rescue, 212 N.J. 67 (2012), and other applicable law, we affirm the dismissal of plaintiff's lawsuit because her allegations of retaliatory conduct substantially have already been raised and rejected in a prior administrative action before the Division on Civil Rights ("DCR"), albeit under a different anti-retaliation statute.
Plaintiff is a certified public accountant. The DOT hired her in January 2001 as an administrative analyst in its Inspector General's Office. In May 2004 plaintiff became a grant manager in the DOT's Division of Aeronautics. A grant manager's duties include ensuring that state and federal funds for airport projects are applied in accordance with applicable regulations.
The discriminatory conduct against plaintiff allegedly started in September 2004 and comprised such actions as yelling at her, denying her upgraded computer equipment, and issuing her poor performance evaluations. On June 27, 2005, plaintiff filed an internal complaint within the DOT, alleging that Thomas Thatcher, the division's director, and Ashwin Patel, an administrative analyst, had discriminated against her on the basis of her Chinese national origin and gender. On July 21, July 27, and September 8, 2005, plaintiff received suspensions totaling thirty-one days, which she characterized as a form of retaliation against her.
On November 22, 2005, plaintiff filed an administrative complaint with the DCR. She specifically alleged that various "acts of retaliation" had been inflicted upon her by the DOT in response to her filing of the internal discrimination charges.
The DCR undertook an investigation of plaintiff's complaint. During that investigation, plaintiff repeated her allegations that she had been unfairly denied an upgrade of her computer equipment, that she had been given unwarranted poor performance evaluations, and that she had been yelled at by her supervisors. She further reiterated that her supervisors had unfairly disciplined her as a method of reprisal.
After completing the interviews, the DCR investigative report recommended that the case be closed, with a finding of no probable cause. The report found no evidence that plaintiff had been treated less favorably than other employees because of her national origin. In addition, the report specifically noted that "the investigation revealed no evidence that [plaintiff's] supervisors spoke to her in an inappropriate manner[.]" Moreover, "the investigation revealed no evidence that [the employer's] articulated reason for issuing the suspensions -- insubordination -- was not its true reason."*fn1
With respect to plaintiff's allegation that she had been repeatedly yelled at, the investigative report noted the contrary observations of other employees who said that plaintiff was the only person who yelled during her interactions with Thatcher and Patel. The DCR report further noted that plaintiff had been unable to identify any additional witnesses to corroborate her allegations of being yelled at.
The DCR report adopted the DOT's explanation that it had provided upgraded computers only to field staff in plaintiff's division. Plaintiff consequently had been treated like all other administrative staff members in not receiving an upgrade. Plaintiff could not identify to the DCR a fellow administrative staff member who had received an upgraded computer. The DCR also found no evidence that Thatcher or Patel had a role in deciding which staff members had received them.
As to plaintiff's evaluations, the DCR report noted that plaintiff initially had received satisfactory ratings for October 2002 through September 2003, as well as for October 2003 through September 2004, during which time Patel was briefly her supervisor. For the period from October 2004 through September 2005, however, plaintiff received failing ratings in nine of the eleven sections concerning individual work and the ability to work with others. Her work had what management described in the DCR report as "numerous" errors. According to the DCR report, plaintiff failed to proofread her work adequately. She also delayed projects. The report also noted that plaintiff had repeatedly asked Patel to obtain information that he had directed her to get from other sources, even though she had received three days of training on how to handle such matters.
According to the DCR report, some of plaintiff's failing ratings in working with others reflected her insubordination of Patel, by refusing to follow his instructions and by raising her voice at him. The report found that her inappropriate conduct justified the three suspensions, each of which had been upheld after departmental hearings.
The DCR investigation also found that plaintiff's substandard ratings in customer service were supported by complaints from airports and consultants about her lack of respect and her reluctance to answer questions. By way of example, the manager of one airport stated in the investigation that plaintiff did not use appropriate industry terminology, that she had raised her voice at him, and that he had ...