November 19, 2013
CHERYL L. SMITH, Plaintiff-Appellant,
NEW JERSEY DEPARTMENT OF HEALTH & SENIOR SERVICES, Defendant-Respondent
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1993-08.
Christian A. Pemberton, attorney for appellant.
William P. Flahive, attorney for respondent.
Before Judges Fisher and Espinosa.
Plaintiff Cheryl Smith was employed by defendant Department of Health and Senior Services from 1988 until her retirement in 2008. At the conclusion of the employment relationship, plaintiff commenced this action, alleging, among other things, she was constructively discharged. Her suit was dismissed at the summary judgment stage. We reverse.
In ruling on defendant's summary judgment motion, the trial judge was required to consider the evidence "in the light most favorable" to plaintiff and determine whether, so viewed, a rational jury could find in plaintiff's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In reviewing summary judgment, we apply the same standard. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). That is, we consider such a case as it had "unfolded to that point" in the trial court and "regard the situation most strongly against [movants] in the light of their burden to show palpably that there is no genuine issue as to any material fact challenged and that they are entitled to judgment as a matter of law." Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188 (1963) (citations and quotation marks omitted).
In opposing summary judgment, plaintiff asserted that she commenced employment with defendant in 1988 as a Public Health Consultant II. In 1994, at the urging of her supervisor (and, later, the supervisor's successor), plaintiff took on additional duties as the means of obtaining promotion to a higher title with a concomitant increase in salary. By 2005, no promotion had been received, prompting plaintiff to ask the Department of Personnel (DOP) to conduct a "desk audit" and to determine whether she was entitled to a promotion or, in the alternative, whether she was performing duties beyond her pay grade.
On April 19, 2006, the DOP determined plaintiff was performing tasks outside her position and should be given the title of Education Program Specialist II with a corresponding raise in pay. Before that could occur, however, it was determined plaintiff did not possess the appropriate educational background to attain the Education Program Specialist II position. Plaintiff thereafter sought to be relieved of the extra duties. Defendant resisted, prompting plaintiff to request further assistance from the DOP, which, on January 17, 2008, directed defendant to remove certain tasks from plaintiff's duties.
Plaintiff also alleged other circumstances that can be viewed, in the light most favorable to her, as retaliatory. She provided evidence that a superior reprimanded her in an intimidating manner. In addition, plaintiff alleged that, in January 2008, when her division moved to another location, other employees were assigned workstations with privacy doorways while plaintiff was given a smaller workstation without a privacy door because, she was told, she was "a field person" only in the office a few days a week. Plaintiff claims these events occurred at or about the same time the DOP directed defendant to remove certain tasks from plaintiff's daily duties, and plaintiff claims – and again we must give her the benefit of the truth of her allegations and the inferences to be drawn – that defendant was retaliating because she had sought relief from the DOP.
In July 2008, a physician found plaintiff able to work only a "sedentary job." That same month, plaintiff was diagnosed with "a very severe major depressive disorder, " based upon a number of factors that not only included health and family issues but also "the stressors of the workplace, " which were found to "have been a significant contributing factor to the onset and continuation of her mental illness." The physician who drew these conclusions also found "a 90 percent permanent of total psychiatric disability."
Plaintiff resigned from her position with defendant, effective September 1, 2008.
On November 20, 2008, plaintiff commenced this action. Her second and last amended complaint asserted: a "wrongful terminat[ion] by constructive discharge"; "negligent infliction of emotional distress"; a "violation of public policy" – namely, an employee's "right to expect to be justly compensated for . . . work" performed; "unjust enrichment, " because she worked at a grade level higher than that for which she was actually paid; and "breach of contract and/or [sic] implied covenant of good faith and fair dealing." Defendant moved for summary judgment, arguing: plaintiff was not constructively discharged because she was unable to continue to work due to her physical condition; plaintiff failed to present a prima facie case of negligent infliction of emotional distress; plaintiff did not identify a clear mandate of public policy to support the so-called Pierce claim; plaintiff was fairly compensated and, thus, defendant was not unjustly enriched; and the claim based on the implied covenant of good faith and fair dealing was not sustainable because, according to defendant, plaintiff did not demonstrate the existence of a contractual right. The trial judge rendered a written decision in which she agreed plaintiff failed to present any maintainable cause of action on the facts alleged. Although carefully considered, we conclude the judge misapprehended the significance of the facts. In reversing, we rely largely on our conclusion that, in granting summary judgment, the judge weighed the evidence and drew inferences in favor of defendant, instead of plaintiff. We consider plaintiff's five pleaded causes of actions separately.
First, in considering the constructive discharge claim, the judge correctly identified the governing principle – to establish such a claim, a plaintiff must show the "employer knowingly permit[ted] conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 27-28 (2002) (citations and quotation marks omitted). The judge found plaintiff's allegations did not present an "intolerable" situation because plaintiff had her own motive for taking on extra work for no additional pay – she was attempting to "strengthen her resume" – and because the scolding and assignment of a small cubicle were, in the judge's view, not "so unbearable that [plaintiff] had to resign."
The judge's decision was inconsistent with the summary judgment standard because she found plaintiff's allegations to be insufficient by viewing them separately rather than collectively. For example, the judge's conclusion that the alleged overbearing reprimand by a supervisor on one occasion does not meet the Shepherd standard may be sustainable when viewed alone, but when plaintiff's allegations are considered collectively – that for a lengthy period of time the employer failed to promote or pay plaintiff commensurate with her duties and that, when plaintiff complained, the reprimand and the assignment of a small cubicle followed – a factfinder could conclude that a reasonable person would find the situation had become intolerable.
In addition, what the judge viewed as the coup de grace for plaintiff's constructive discharge claim resulted from a misreading of plaintiff's deposition testimony. That is, the judge held that "[p]laintiff admitted at her deposition that she resigned due to physical disability and not for any of the reasons" (emphasis added) referred to above. The deposition excerpt upon which the judge relied, however, does not contain such an admission or even permit such an inference. Instead, plaintiff was apparently asked about her physical ailments,  and responded in the following way:
A. I've got all kinds of ailments, but I have either six or seven herniated discs in my back and one is pressing on my nerve. I have neuropathy in both my legs, it is more in my left leg, and carpal tunnel, bilateral carpal tunnel, and I have a double-crush syndrome in my right shoulder, well, the diabetes, the high blood pressure, and my knees – arthritis in my knees, bilateral arthritis in my knees along with the arthritis in my wrist also – I'm quite sure I have some more.
Q. Is it fair to say that regardless of any emotional or psychiatric injury that you're claiming in this case, that as of September 1st, 2008[, ] you were physically unable to perform your job?
Q. It's fair to say?
Q. So even if none of this stuff [the factual basis for plaintiff's lawsuit] ever happened you couldn't physically do your job after you're put out on disability retirement, correct?
As can be seen from this testimony, plaintiff only listed her physical ailments and agreed that, as of September 1, 2008, those ailments would have kept plaintiff from performing the position she held with defendant. She did not say and apparently was not asked whether it was her physical ailments that caused her to retire, let alone concede such a fact.
Instead, when viewed in the light most favorable to plaintiff, the record permits a conclusion that plaintiff faced adverse employment conditions for longer than a reasonable person would endure. For many years, she performed tasks beyond those for which she was paid based on a delusive promise of promotion. When finally recognizing her supervisors' promises had no basis in reality, plaintiff did not quit but endured and took the reasonable step of seeking an available administrative remedy. Indeed, plaintiff was successful in the latter regard, obtaining a DOP ruling that she was entitled to a promotion and, when it was found she was not eligible for other reasons, the DOP agreed plaintiff should be relieved of certain tasks for which she was not being compensated. Notwithstanding that ruling, defendant did not relieve plaintiff of the tasks she should not have been assigned, and plaintiff was required to ask the DOP for enforcement, which was granted.
The intimidating reprimand and the cubicle situation – standing alone – are perhaps, as the judge held, insufficient to meet Shepherd's requirements. But, when viewed in conjunction with the events that prompted the DOP's involvement, those incidents amplify plaintiff's claim of a constructive discharge because they suggest – and plaintiff was entitled as an opponent of summary judgment to such an inference – that defendant retaliated for plaintiff's enforcement of her rights. In other words, the events the judge found to be inconsequential – the dressing-down and the cubicle – were not necessarily the events upon which constructive discharge was based as they were evidence tending to support a conclusion that staying on the job had become unendurable.
Constructive discharge is a "heavily fact-driven determination." Muench v. Twp. of Haddon, 255 N.J.Super. 288, 302 (App. Div. 1992). The concept of constructive discharge is often elusive in its application and requires a court's awareness that pressure utilized by an employer that effects a constructive discharge may be subtle. The judge was dismissive of the 2008 reprimand and cubicle situation when viewed as the cause of the constructive discharge, but the judge should have viewed them as demonstrative of the claim that the other more substantive contentions had become intolerable. To be clear, we do not mean to suggest or intimate that this is what plaintiff can prove. We have merely viewed the evidence in a light favorable to her and have concluded that the evidence, if found credible and persuasive, permits such a conclusion. Because Brill requires that the evidence be so interpreted, summary judgment on this claim was erroneously entered.
Second, the judge recognized the negligent-infliction-of-emotional-distress claim turned on whether plaintiff could show "negligent conduct that is the proximate cause of emotional distress in a person to whom the actor owes a legal duty to exercise reasonable care." Decker v. Princeton Packet, Inc., 116 N.J. 418, 429 (1989). Focusing on whether the result of defendant's acts and omissions was foreseeable, the judge held:
Here, a reasonable employer would not foresee that [p]laintiff would experience serious emotional distress due to the work environment . . . . Employees become stressed at work for a variety of reasons. [Defendant] could not have reasonably foreseen that assigning [p]laintiff a smaller cubicle than her coworkers, having her perform duties above her title and pay grade, and on one occasion, having [p]laintiff's supervisor stand over her in an allegedly intimidating manner would cause [p]laintiff serious mental distress.
Although a factfinder might so find, the judge erred in drawing such a conclusion at the summary judgment stage. Again, plaintiff was entitled to have these events examined in a light most favorable to her, and while the judge may have found the outcome of defendant's actions to be unforeseeable, a factfinder could view them quite differently, namely, in the manner we described while discussing the constructive discharge claim. In short, the judge viewed the evidence in the light most favorable to defendant, contrary to what Brill requires.
Third, plaintiff's Pierce claim must be reinstated because its dismissal was based on the judge's finding that plaintiff was not wrongfully discharged; our reversal of the dismissal of the constructive discharge claim eliminates the premise upon which that holding was based. The judge also found an additional reason for dismissing the Pierce claim. The judge held that plaintiff identified a public policy in regulations which require precision in the classification, duties and titling of career positions, N.J.A.C. 4A:3-3.1 to -3.8, but concluded that defendant "made an effort to comply" with these regulations and "even offered [p]laintiff a higher position." To the contrary, what the record shows is that the possibility of plaintiff receiving a higher position was never contemplated or considered by defendant until the DOP determined plaintiff was already performing the tasks of a higher position. And, when plaintiff was found ineligible for the higher position for unrelated reasons, defendant did not relieve her of the additional duties. Again, the judge interpreted this evidence in the light most favorable to defendant – not plaintiff – and, for that reason, we reverse the disposition of the Pierce claim. We note, however, that not every violation of a such a regulation gives rise to a maintainable conditional discharge claim pursuant to Pierce, and we therefore do not foreclose the possibility that summary judgment could be entered on this claim upon a proper application of the Brill standard.
Fourth, the dismissal of plaintiff's unjust-enrichment claim was based on the judge's determination that plaintiff "did not have a reasonable expectation that she would be compensated" for having performed additional duties. In this regard, the judge relied upon Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007), where the Court said that a plaintiff, in seeking unjust enrichment, must "show [an] . . . expect[ation] [of] remuneration from the defendant at the time [plaintiff] performed or conferred a benefit on defendant and that the failure of remuneration enriched defendant beyond its contractual rights." The judge found that evidence required by the first part of this statement – plaintiff's expectation of payment – was not supported because plaintiff testified at her deposition, in the judge's words, that plaintiff "knew she was not going to get paid for the extra duties she was performing." Even were we to assume this represented a fair interpretation of plaintiff's deposition testimony,  we do not view this aspect to be governed by whether plaintiff expected a direct monetary benefit; the evidence supports a conclusion that plaintiff performed the extra duties because she anticipated advancement and the concomitant increase in salary that advancement would bring. That is, the anticipated compensation was not payment for past extra services already executed but what would be derived from a future promotion. This expectation is sufficient to support plaintiff's unjust-enrichment theory. Moreover, it is fair to conclude in examining the evidence in a light favorable to plaintiff that had she known the promotion dangled before her was never going to be given, she would have thought she was entitled to be compensated for having benefited defendant by chasing it. Plaintiff's theory rests on the equitable proposition, which a trier of fact might reasonably endorse, that it is unjust to allow defendant to retain the benefit it derived from a delusive promise of promotion. And, we would further observe that upon a proper application of the Brill standard, the record would certainly support the contention that plaintiff reasonably expected additional compensation once the DOP ruled in her favor.
Fifth and last, we reverse the dismissal of plaintiff's implied-covenant-of-good-faith claim because it appears to be largely derivative of the other claims.
Reversed and remanded. We do not retain jurisdiction.