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Smith v. New Jersey Department of Health & Senior Services

Superior Court of New Jersey, Appellate Division

November 19, 2013

CHERYL L. SMITH, Plaintiff-Appellant,
v.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

PER CURIAM

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 ...


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