NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3720-14T2
LAVERN SANDERS,
Plaintiff-Appellant,
v.
DIVISION OF CHILDREN AND FAMILY SERVICES and JONATHAN REID,
Defendants-Respondents. _____________________________
Submitted May 17, 2017 – Decided July 26, 2017
Before Judges Simonelli, Carroll and Farrington.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1146-13.
Law Offices of Louis A. Zayas, L.L.C., attorneys for appellant (Mr. Zayas, of counsel and on the briefs; Alex Lee, on the briefs).
Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer I. Fischer, Deputy Attorney General, on the brief). PER CURIAM
In this employment matter, plaintiff Lavern Sanders appeals
from the March 6, 2015 Law Division order, which granted summary
judgment to defendants Division of Children and Family Services
(DCF) and Jonathan Reid, and dismissed her complaint with
prejudice. We affirm in part, and reverse in part.
I.
We derive the following facts from evidence submitted by the
parties in support of, and in opposition to, the summary judgment
motion, viewed in the light most favorable to plaintiff. Angland
v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing
Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).
In November 2006, plaintiff began her employment with DCF as
a Family Service Specialist Trainee. In September 2007, she was
promoted to Family Service Specialist 2 (FSS 2).
In 2007, plaintiff began a romantic relationship with another
DCF employee, Reid. Reid was a DCF Family Service Specialist
Supervisor, but he never supervised or worked directly with
plaintiff. Plaintiff and Reid dated for approximately six months.
None of their coworkers knew they were dating. Plaintiff allegedly
ended the relationship in September 2007. She last spoke to Reid
in September 2008 and last saw him in 2010.
2 A-3720-14T2 In July 2008, a judicial officer found probable cause to
issue a complaint-warrant against plaintiff, charging her with
using Reid's personal identifying information to open a Discover
credit card account in July 2007, in violation of N.J.S.A. 2C:21-
17(a)(4) and N.J.S.A. 2C:21-6(d)(2). Plaintiff allegedly made
herself and her mother authorized users of the credit card, had
the bill sent to her home mailing address, and used the card to
accumulate $4,847.40 in charges.
Plaintiff was arrested on October 8, 2008. She claimed that
Reid falsely accused her of identity theft and credit card fraud
in retaliation for ending their relationship. Reid also filed a
civil action against plaintiff, which settled in June 2009, after
plaintiff agreed to pay $4500 in installment payments.
On October 17, 2008, DCF served plaintiff with a preliminary
notice of disciplinary action (PNDA), charging her with
impersonation, theft of identity crime, and credit card crime.
DCF suspended plaintiff with pay and sought her removal. On
October 22, 2008, DCF served plaintiff with a second PNDA, charging
her with the same offenses, suspending her without pay effective
October 22, 2008, and seeking her removal. On March 5, 2009, DCF
served plaintiff with a third PNDA, charging her with conduct
unbecoming a public employee and improper conduct that violates
common decency. On April 7, 2009, DCF sustained the charges in
3 A-3720-14T2 the third PDNA, and served plaintiff with a final notice of
disciplinary action (FNDA), removing her, effective October 22,
2008.
Following a bench trial on the criminal charges, on March 23,
2009, the court acquitted plaintiff of the criminal charges. DCF
eventually rescinded plaintiff's removal and reinstated her as a
FSS 2, effective January 4, 2010, with back pay and benefits to
October 22, 2008.
Plaintiff returned to work on January 14, 2010. She claimed
that her supervisors began retaliating against her and created a
hostile work environment because she had dated Reid; Reid told
them she had stolen his credit card and used his identity; Reid
pressed criminal charges against her and she was arrested; and
they did not believe she was acquitted of the charges. Plaintiff
maintained that her supervisors were trying to get her terminated
because they believed Reid, and DCF did not discipline Reid for
making false allegations against her.
Plaintiff pointed to several instances of alleged retaliation
and hostile work environment. The first involved discipline she
received upon returning to work. On January 19, 2010, DCF served
plaintiff with a PNDA, charging her with and seeking her removal
for inability to perform job duties, and suspending her with pay.
The charge stemmed from plaintiff's lack of a valid New Jersey
4 A-3720-14T2 driver's license. Plaintiff was required to operate State vehicles
in performing her job duties and department policy required her
to have a valid driver's license. Prior to returning to work, she
signed a document certifying that she possessed a valid driver's
license; however, her driver's license was suspended. DCF
subsequently withdrew the PNDA after plaintiff had her driver's
license reinstated.
Plaintiff claimed that in April 2010, her supervisor twice
reprimanded her for improper attire but did not reprimand other
employees for wearing similar clothing. However, plaintiff
admitted that after receiving a copy of the dress code, she
continued to come to work improperly dressed and once wore an NBA
logo tracksuit to court. She also admitted she was never
disciplined for this incident and never reprimanded for any dress
code violation after April 2010.
Plaintiff claimed that in April 2010, she was denied a
position in the Special Response Unit (SPRU). She alleged that
everyone in the department received an email about a position
opening in the SPRU, except her, which caused her to submit an
application in May 2010, that was denied for untimeliness.
However, she admitted she did not apply for a SPRU position after
2010.
5 A-3720-14T2 Plaintiff claimed that in May 2010, she was threatened with
disciplinary action for parking a State vehicle on the street in
front of the building, while other employees parked there with no
problems. However, she admitted that DCF employees are required
to park State vehicles in the parking lot one block from the
building. She also admitted she was never disciplined for this
incident and had no issues regarding parking after May 2010.
Plaintiff also claimed that in August 2010, her supervisor accused
her of being involved in a near accident with a State vehicle.
However, she admitted she was not disciplined for this incident
and had no other incidents or accusations regarding State vehicles
after August 2010.
Plaintiff claimed that in June 2010, she was denied mandatory
training. However, she was removed from the training session
because she had to complete work on her caseload. She admitted
that staff members were promptly rescheduled to attend any missed
training sessions; she was rescheduled for and attended training
sessions in September 2010; the rescheduled training included the
same courses as the June 2010 training session; and she was not
denied training after June 2010.
Plaintiff claimed that in 2010, she was denied the opportunity
to adopt T.H. She had submitted the required documents to adopt
T.H. as a DCF worker, but was advised on November 8, 2010 that per
6 A-3720-14T2 Labor Relations, she was to have no contact with T.H. Plaintiff
alleged she was defamed by a caseworker-supervisor's comment to
her boyfriend that she previously and currently had pending charges
against her and T.H. could not be left alone with her at any time,
and this information was placed into T.H.'s file. Plaintiff had
no issues regarding T.H. after December 2010.
Plaintiff testified at her deposition that all acts of
retaliation and hostile work environment occurred on or before
2010; Reid had no involvement in any of those acts; and Reid did
not supervise her. However, she claimed that the retaliation and
hostile work environment continued after 2010, when DCF served her
with a PNDA on March 30, 2011, seeking her removal; denied her
sick leave in April 2011; and rejected her as a foster parent in
May 2011.
Plaintiff suffers from sarcoidosis and mental health issues,
and was on approved leave from October 5, 2010 through October 18,
2010. She returned to work, but left again on December 8, 2010.
She used sick leave from December 9 to December 24, 2010, and
administrative leave from December 28 to December 30, 2010. She
submitted a doctor's note verifying her sick leave for December 9
to December 22, 2010, and submitted a second doctor's note stating
she could return to work on January 6, 2011.
7 A-3720-14T2 Plaintiff did not return to work on January 6, 2011, and did
not report her absence, as required by DCF policy. Her doctor
placed her on short-term disability leave until February 28, 2011.
DCF instructed plaintiff to complete and submit the required
request for paid leave of absence and provide acceptable medical
verification, but plaintiff failed to comply. As a result, DCF
considered her leave unauthorized.
Plaintiff did not return to work on February 28, 2011, and
did not report her absence. On March 30, 2011, DCF served her
with a PNDA, charging her with unauthorized absences; failure to
follow established procedures for documenting absences from work;
failure to follow established procedures for reporting absences
from work; abuse of sick leave; insubordination; chronic or
excessive absenteeism or lateness; and resignation not in good
standing for being absent for five or more consecutive business
days without supervisor approval. DCF sought plaintiff's removal,
effective March 7, 2011. DCF denied plaintiff's subsequent
requests for paid leave of absence because she was on unauthorized
leave and pending removal pursuant to the PNDA.
A hearing officer sustained the charges. On December 28,
2011, DCF served plaintiff with a FNDA, removing her effective
March 7, 2011. On April 29, 2013, an arbitrator converted the
sanction to a five-day suspension for failing to follow proper
8 A-3720-14T2 policies and procedures for her leave of absence and
insubordination for failing to follow DCF directives, and
reinstated plaintiff.
Prior to her reinstatement, in May 2011, plaintiff sought to
become a foster parent for K.T. DCF denied her request because
she was not an employee in good standing at the time. Plaintiff
believed the denial was in retaliation for filing complaints with
the Equal Employment Opportunity Commission (EEOC). She claimed
that she had filed EEOC complaints in 2009, 2010, 2011, and 2012;
however, the EEOC only confirmed receiving complaints on January
28, 2011, alleging age discrimination, and on October 12, 2011,
alleging age and disability discrimination and retaliation. The
EEOC attempted to contact plaintiff to acquire additional
information about both complaints, and she refused to provide any
information about the second complaint and said she would be
consulting an attorney. As a result, the EEOC dismissed both
complaints, but issued plaintiff right to sue letters. Plaintiff
provided no evidence that DCF, her supervisors, or Reid were aware
of her EEOC complaints or that EEOC had contacted them.
Plaintiff was reinstated and returned to work in June 2013.
She claimed that her supervisor harassed her by giving her cases
back to her with corrections, and retaliated against her because
of her prior complaints and because the supervisor heard from
9 A-3720-14T2 other supervisors that she was stubborn and did not like to follow
orders.
Lastly, plaintiff was previously assigned to the Intake
Section. In October 2014, she was transferred to the Permanency
Section. She claimed the position was a hardship on her due to
her disability; she was purposely given no work assignments; and
her responsibilities were taken away from her when her co-workers,
both male and female, were facing enormous workloads.
Plaintiff only deposed Reid. Reid testified that he did not
know plaintiff's supervisors and had no conversations with them
about her. Except for her self-serving statements, plaintiff
provided no competent evidence supporting her claims of continued
retaliation, hostile work environment, and gender- or disability-
based discrimination in 2013 and 2014.
On March 6, 2013, plaintiff filed a complaint against all
defendants, asserting claims for: gender- and disability-based
unlawful termination, retaliation, and hostile work environment
in violation of the New Jersey Law Against Discrimination, (NJLAD)
N.J.S.A. 10:5-1 to -49; and violation of her right to free speech
and to petition for redress of grievances, in violation of the New
Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. Plaintiff
sued Reid in his official and individual capacity, and asserted
10 A-3720-14T2 separate claims against him for malicious prosecution and abuse
of process.
Defendants filed a motion for summary judgment. In a
comprehensive oral opinion, the motion judge found the two-year
statute of limitations, N.J.S.A. 2A:14-2, barred claims pre-dating
March 6, 2011, and the continuing violation doctrine did not apply
because plaintiff testified that all of the retaliation and
harassment occurred on or before 2010, and plaintiff failed to
cite to any discriminatory actions or evidence of hostile work
environment after 2010. The judge also found that plaintiff had
no contact with Reid since 2010.
Addressing the merits, the judge found there was no evidence
supporting plaintiff's NJLAD and NJCRA claims against Reid.
Regarding plaintiff's gender discrimination claim, the judge found
no evidence that any of the disciplinary actions taken against
plaintiff were gender-based; no evidence that DCF did not
discipline Reid for making false allegations against her; and DCF
had legitimate business reasons for all of the disciplinary
actions. The judge concluded that plaintiff failed to establish
a prima facie case of gender-based discrimination, or a causal
connection between any adverse employment action and her gender.
Regarding plaintiff's disability discrimination claim, the
judge found that plaintiff failed to show she was performing her
11 A-3720-14T2 duties as a FSS 2 at a level that met her employer's legitimate
expectations. The judge also found that DCF had a legitimate,
non-pretextual business reason for removing her, effective March
7, 2011.
The judge found that except for plaintiff's subjective
beliefs, she failed to provide any evidence of a hostile work
environment. The judge found no evidence: supporting plaintiff's
claims that Reid ignited a series of harassments by DCF employees
against her; establishing any connection with Reid and her alleged
harassment based on gender or disability; or establishing that she
was harassed due to her disability. The judge also found no
evidence of any defamatory comments made about plaintiff, and no
evidence that the alleged discriminatory acts in 2011 and 2013
were gender- or disability-based.
Regarding plaintiff's retaliation claim based on filing of
the EEOC complaints, the judge found plaintiff could not prove she
was engaged in a protected activity known to her employer because
there was no evidence that anyone at DCF knew she had filed those
complaints. The judge also found no evidence of a causal link
between the EEOC complaints and her March 7, 2011 removal or denial
of her request to be a foster parent to K.T. The judge determined
there was no evidence whatsoever that the terms, conditions, or
12 A-3720-14T2 privileges of plaintiff's employment were adversely affected
because she was denied being a foster parent.
The judge found no evidence that Reid aided or abetted the
alleged retaliation. The judge determined that because DCF did
not violate the NJLAD, Reid could not be held liable as an aider
or abettor. The judge also found, incorrectly, that plaintiff's
malicious prosecution and abuse of process claims against Reid
were barred for failure to file a notice of tort claim and by the
two-year statute of limitations.
The judge found that plaintiff's CRA claims of violation of
her right to free speech and to petition for redress of grievances
could not be brought against a public employer, and there was no
evidence that plaintiff complained to DCF or any supervisor about
her adverse treatment. The judge also found that plaintiff's
claims of a CRA violation regarding her January 2011 EEOC complaint
were barred by the two-year statute of limitations, and her October
2012 EEOC complaint post-dated her allegations of retaliation and
hostile work environment.
Lastly, the judge dismissed plaintiff's punitive damages
claim for plaintiff's failure to show any acts of wanton, reckless,
and malicious, evil-minded or particularly egregious acts on the
part of defendants or any DCF employee. On appeal, plaintiff
challenges all of the judge's findings.
13 A-3720-14T2 We review a ruling on a motion for summary judgment de novo,
applying the same standard governing the trial court. Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189,
199 (2016). Thus, we consider, as the motion judge did, "whether
the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue
in favor of the non-moving party." Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 406 (2014) (citation omitted). If there is
no genuine issue of material fact, we must then "decide whether
the trial court correctly interpreted the law." DepoLink Court
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325,
333 (App. Div. 2013) (citation omitted). We review issues of law
de novo and accord no deference to the trial judge's legal
conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). For
mixed questions of law and fact, we give deference to the supported
factual findings of the trial court, but review "de novo the lower
court's application of any legal rules to such factual findings."
State v. Pierre, 223 N.J. 560, 576-77 (2015) (citations omitted).
II.
We first address the dismissal of plaintiff's claims based
on the statute of limitations. The statute of limitations for
NJLAD claims is two years. Alexander v. Seton Hall Univ., 204
14 A-3720-14T2 N.J. 219, 228 (2010). "Determining when the limitation period
begins to run depends on when the cause of action accrued, which
in turn is affected by the type of conduct a plaintiff alleges to
have violated the LAD." Ibid. Here, plaintiff alleges retaliation
and hostile work environment.
"Generally stated, discrete acts of discrimination, such as
termination or a punitive retaliatory act, are usually readily
known when they occur and thus easily identified in respect of
timing." Ibid. "Hence, their treatment for timeliness purposes
is straightforward: 'A discrete retaliatory or discriminatory act
occurs on the day that it happens.'" Ibid. (quoting Roa v. Roa,
200 N.J. 555, 567 (2010)). "Discriminatory termination and other
similar abrupt, singular adverse employment actions that are
attributable to invidious discrimination, prohibited by the LAD,
generally are immediately known injuries, whose two-year statute
of limitations period commences on the day they occur." Ibid.
Discrete acts are those "such as termination, failure to promote,
denial of transfer, or refusal to hire" and for purposes of a
statute of limitations, occurs on the day it happens. Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114, 122 S. Ct.
2061, 2070, 2073, 153 L. Ed. 2d 106, 120, 122 (2002). Similarly,
a transfer is a discrete act in line with the examples cited in
Morgan. Id. at 114, 122 S. Ct. at 2073, 153 L. Ed. 2d at 122.
15 A-3720-14T2 Alternatively, a plaintiff may have a viable NJLAD claim
under the continuing violation doctrine, which is "a judicially
created doctrine . . . [that] has developed as an equitable
exception to the statute of limitations" in NJLAD cases. Bolinger
v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div.), certif. denied,
165 N.J. 491 (2000). The continuing violation doctrine provides
that "when the complained-of conduct constitutes 'a series of
separate acts that collectively constitute one unlawful employment
practice[,]' the entire claim may be timely if filed within two
years of 'the date on which the last component act occurred.'"
Alexander, supra, 204 N.J. at 229 (quoting Roa, supra, 200 N.J.
at 567). "The 'continuing violation' doctrine, recognized under
federal Title VII law as an appropriate equitable exception to the
strict application of a statute of limitations, provided the
analytic framework that has been used in the assessment of a LAD
hostile workplace environment claim." Ibid.
Our Supreme Court has "specifically adopted the federal
continuing violation equitable doctrine to determine the accrual
date of a cause of action in a hostile workplace course-of-conduct
claim." Ibid. (citing Shepherd v. Hunterdon Developmental Ctr.,
174 N.J. 1, 18-19 (2002)). The Court noted that the doctrine
addresses the "factual circumstances of an ongoing workplace
harassment claim that involve[s] alleged incidents of both
16 A-3720-14T2 discrete and non-discrete acts of discriminatory workplace
hostility." Ibid. (citing Shepherd, supra, 174 N.J. at 21). The
Court stated that Morgan had clarified the distinction between
discrete acts of discrimination and hostile work environment
claims, stating that "hostile work environment claims by '[t]heir
very nature involve[] repeated conduct' of varying types and that
'[s]uch claims are based on the cumulative effect of individual
acts.'" Ibid. (quoting Morgan, supra, 536 U.S. at 115, 122 S. Ct.
at 2073-74, 153 L. Ed. 2d at 123). The Court also stated that
[r]ecognizing the beneficial effect of adopting Morgan's approach to such difficult hostile work environment scenarios where an employee may be subjected to ongoing indignities, we held in Shepherd . . . that "a victim's knowledge of a claim is insufficient to start the limitations clock so long as the defendant continues the series of non-discrete acts on which the claim as a whole is based."
[Id. at 229-30 (quoting Shepherd, supra, 174 N.J. at 22).]
The Court continued that "[s]tated differently, knowledge of
hostility and of ongoing acts consistent with that hostility in
such a setting is insufficient to trigger the limitation timeframe
within which a [NJ]LAD cause of action must be filed." Id. at
230. The Court warned, however, "that '[w]hat the doctrine does
not permit is the aggregation of discrete discriminatory acts for
the purposes of reviving an untimely act of discrimination that
17 A-3720-14T2 the victim knew or should have known was actionable.'" Ibid.
(quoting Roa, supra, 200 N.J. at 569).
To establish a continuing violation based on a series of
discriminatory acts, our Supreme Court has stated that two
questions must be considered:
First, have plaintiffs alleged one or more discrete acts of discriminatory conduct by defendants? If yes, then their cause of action would have accrued on the day on which those individual acts occurred. Second, have plaintiffs alleged a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment? If yes, then their cause of action would have accrued on the date on which the last act occurred, notwithstanding "that some of the component acts of the hostile work environment [have fallen] outside the statutory time period."
[Shepherd, supra, 174 N.J. at 21 (emphasis added) (quoting Morgan, supra, 536 U.S. at 116, 122 S. Ct. at 2074, 153 L. Ed. 2d at 124).]
Here, plaintiff relies on the continuing violation doctrine to
sweep in as timely all of the retaliation and hostile work
environment that allegedly occurred during a six-year period.
The continuing violation doctrine does not permit the
aggregation of discrete retaliatory acts for the purpose of
reviving an untimely act of discrimination that plaintiff knew or
should have known was actionable. Thus, each time plaintiff was
18 A-3720-14T2 terminated, disciplined, or reprimanded, she knew or should have
known that she had been subjected to discriminatory retaliation
and should have filed her retaliation claim within two years
thereof. When she did not do so, that retaliation claim was lost
and not subject to the continuing violation doctrine. Accordingly,
plaintiff's retaliation claims pre-dating March 6, 2011 are time-
barred.
We reach a different conclusion as to plaintiff's hostile
work environment claim. Plaintiff alleged a pattern or series of
non-discrete acts which, when viewed cumulatively, could
constitute a hostile work environment. When a plaintiff alleges
a pattern or series of acts, any one of which may not be actionable
as a discrete act, but when viewed cumulatively constitute a
hostile work environment, the cause of action accrues on the date
of the last act, even if some of the component acts of the hostile
work environment claim fell outside the two-year period. Roa,
supra, 200 N.J. at 568 (quoting Shepherd, supra, 174 N.J. at 21).
Plaintiff's deposition testimony and certification submitted in
opposition to the summary judgment motion suggest that from 2008
to 2014, she was subjected to a pattern or series of acts that
when viewed cumulatively could constitute a hostile work
environment. Accordingly, her hostile work environment claim was
19 A-3720-14T2 timely as a continuing violation. Nevertheless, that claim was
properly dismissed on the merits.
The burden of proving discrimination "remains with the
employee at all times." Zive v. Stanley Roberts, Inc., 182 N.J.
436, 450 (2005). To establish a cause of action under the NJLAD
based on hostile work environment, the plaintiff must satisfy four
elements:
Specifically, [plaintiff] must show that the complained-of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive. Within that framework, a court cannot determine what is "severe or pervasive" conduct without considering whether a reasonable person would believe that the conditions of employment have been altered and that the working environment is hostile. Thus, the second, third, and fourth prongs are, to some degree, interdependent.
[Shepherd, supra, 174 N.J. at 24 (citations omitted).]
Plaintiff cannot satisfy the first element. The record is
devoid of evidence that she was subjected to a hostile work
environment because of her gender or disability. Accordingly,
defendants were entitled to summary judgment on plaintiff's
hostile work environment claim as a matter of law.
20 A-3720-14T2 III.
Defendants were also entitled to summary judgment as a matter
of law on plaintiff's post-March 6, 2011 retaliation claims. To
prove a prima facie case of retaliation, plaintiff must show that:
(1) she was engaged in a protected activity known to the defendant;
(2) she was thereafter subjected to an adverse employment decision
by the defendant; and (3) there was a causal link between the
protected activity and the adverse employment consequence. Victor
v. State, 203 N.J. 383, 409 (2010). Once a plaintiff establishes
a prima facie case of retaliation, the burden of production shifts
to the defendant to articulate a "legitimate[,] non-retaliatory
reason" for the decision. Jamison v. Rockaway Twp. Bd. of Educ.,
242 N.J. Super. 436, 445 (App. Div. 1990). If the defendant
satisfies this burden, the plaintiff must then demonstrate that a
retaliatory intent, not the employer's stated reason, motivated
the employer's action, proving the employer's articulated reason
was merely a pretext for discrimination. Ibid.
Plaintiff claims she was engaged in protected activity by
filing the EEOC complaints. However, there was no evidence
whatsoever that defendants were aware she had filed those
complaints or that the EEOC had contacted DCF, Reid, or any DCF
employees. Because plaintiff cannot establish that she was engaged
in a protected activity known to defendants, she also cannot
21 A-3720-14T2 establish a causal link between her protected activity and the
alleged retaliatory acts that occurred after March 6, 2011.
IV.
Plaintiff's disability discrimination claim also fails as a
matter of law. The NJLAD prohibits employment discrimination on
the basis of a disability "unless the nature and extent of the
disability reasonably precludes the performance of the particular
employment." N.J.S.A. 10:5-4.1; see also Potente v. Cty. of
Hudson, 187 N.J. 103, 110 (2006). To establish a prima facie case
of disability discrimination, the plaintiff must show that: (1)
she was handicapped or disabled within the meaning of the NJLAD;
(2) she was qualified to perform the essential functions of the
position of employment, with or without accommodation;1 (3) she
suffered an adverse employment action because of the handicap or
disability; and (4) the employer sought another to perform the
same work after plaintiff had been removed from the position.
Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005).
Plaintiff did not establish that she suffered an adverse
employment action because of her disability and that DCF sought
1 We decline to address plaintiff's argument that DCF failed to accommodate her disability. Plaintiff did not allege a failure to accommodate in her complaint or raise this issue before the motion judge, and the issue is not jurisdictional in nature nor does it substantially implicate the public interest. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citation omitted).
22 A-3720-14T2 another to perform the same work after she was removed from the
position. There is no evidence that any of the adverse employment
actions taken against plaintiff were based on her disability.
We next address plaintiff's aiding and abetting claim against
Reid. "[I]t is unlawful '[f]or any person, whether an employer
or an employee or not, to aid, abet, incite, compel or coerce the
doing of any of the acts forbidden [under the NJLAD],' N.J.S.A.
10:5-12[(e)], and such conduct may result in personal liability."
Tarr v. Ciasulli, 181 N.J. 70, 82-83 (2004). In order to hold an
employee liable as an aider or abettor, a plaintiff must show that
(1) the party whom the defendant aids must perform a wrongful act
that causes an injury; (2) the defendant must be generally aware
of his role as part of an overall illegal or tortious activity at
the time that he provides the assistance; and (3) the defendant
must knowingly and substantially assist the principal violation.
Id. at 84 (citations omitted).
Plaintiff did not establish that DCF committed any wrongful
act, and even if she did, there is no evidence that Reid assisted
DCF or knew DCF had engaged in illegal or tortious activity toward
plaintiff. Accordingly, plaintiff's aiding and abetting claim
against Reid was properly dismissed as a matter of law.
23 A-3720-14T2 VI.
We next address the dismissal of plaintiff's NJCRA claims.
Plaintiff alleges two NJCRA violations: the violation of her right
to free speech and her right to petition for grievances.
The NJCRA authorizes a private cause of action for the
enforcement of an individual's civil rights. N.J.S.A. 10:6-1 to
-2. Under N.J.S.A. 10:6-2(c) only a "person acting under color
of law," may be sued for damages. Perez v. Zagami, LLC, 218 N.J.
202, 210-14 (2014).
The State is not a "person" within the meaning of the NJCRA
and is immune from suit under the NJCRA. Brown v. State, 442
N.J. Super. 406, 426 (App. Div. 2015). This is consistent with
United State Supreme Court precedent interpreting the analogous
federal Civil Rights Act, holding that "neither a State nor its
officials acting in their official capacities are 'persons'"
within the meaning of the federal statute. Will v. Mich. Dep't
of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d
45 (1989); see also Brown, supra, 442 N.J. Super. at 426. Because
DCF is an arm of the State, see N.J.S.A. 9:3A-3 (establishing DCF
in the Executive Branch of the State government), it is not a
"person" subject to a private cause of action and is immune from
suit under the NJCRA.
24 A-3720-14T2 While Reid may be deemed a "person" under the NJCRA, he cannot
be sued under the NJCRA for acts taken in his individual capacity;
he must be acting under the color of law. Plaintiff claims Reid
acted under color of law in provoking the retaliatory acts against
her.
There is no evidence that DCF or any of its employees violated
plaintiff's civil rights. Even if there was such evidence, there
is no evidence that Reid interfered or attempted to interfere with
those rights. As for plaintiff's arguments that Reid acted under
color of law in provoking retaliatory acts against her, as
discussed supra, there is no evidence of retaliation and hostile
work environment by DCF or any of its employees. Accordingly,
plaintiff's NJCRA claims against DCF and Reid were properly
dismissed.
Because plaintiff failed to establish any claim against DCF,
her punitive damages claim against the agency was properly
dismissed. See N.J.S.A. 2A:15-5.12(a).
VII.
Plaintiff's claims against Reid for malicious prosecution and
abuse of process were improperly dismissed. Plaintiff brought
these claims against Reid in his individual capacity, not in his
capacity as a public employee. Thus, those claims are not subject
to a tort claim notice. See N.J.S.A. 59:8-8 (barring recovery
25 A-3720-14T2 against a public entity or public employee for failure to timely
file a notice of tort claim); Gazzillo v. Greib, 398 N.J. Super.
259, 264 (App. Div.) (noting "there must be some nexus between the
wrong that is complained of and the defendant's public employment
in order to mandate that a notice of claim be filed before suit
may be instituted"), certif. denied, 195 N.J. 524 2008).
In addition, a six-year statute of limitations applies to
malicious prosecution and abuse of process claims. Earl v. Winne,
14 N.J. 119, 132 (1953). Consequently, plaintiff's claims against
Reid, individually, of malicious prosecution and abuse of process
based on the legal proceedings in 2008 and 2009 were timely.
Because plaintiff's malicious prosecution and process of
process claims survive summary judgment, so too, does plaintiff's
claim against Reid for punitive damages. However, we express no
view as to the merits of any of these remaining claims.
Affirmed in part, reversed in part.
26 A-3720-14T2