NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2883-21
LISA HUTCHINSON,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, LIEUTENANT RYAN VALENTIN, MAJOR WAYNE MANSTREAM, SERGEANT CHRISTOPHER ANTONIELLO, and DIRECTOR GUY CIRILLO,
Plaintiffs-Respondents. ____________________________
Submitted December 13, 2023 – Decided October 29, 2024
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0186-18.
Chance & McCann, LLC, attorneys for appellant (Kevin P. McCann and Claudia J. Gallagher, on the briefs). Greenbaum, Rowe, Smith & Davis, LLP, attorneys for respondents State of New Jersey, Department of Corrections, Major Wayne Manstream, Sergeant Christopher Antoniello and Director Guy Cirillo (Jemi G. Lucey and Maja M. Obradovic, of counsel and on the brief; Joel Clymer, on the brief).
Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent Lieutenant Ryan Valentin (Richard L. Goldstein and Walter F. Kawalec, III, on the brief).
The opinion of the court was delivered by
ACCURSO, P.J.A.D.
Plaintiff Lisa Hutchinson, a now-retired senior corrections officer,
formerly an instructor at the Department of Corrections' Training Academy,
was involuntary transferred out of the Academy in 2016 after receiving a five-
day suspension for insubordination.1 She claimed her advocacy on behalf of
five Black trainees allegedly assigned extra push-ups in 2014 because their
hair did not meet the Academy's grooming standards spurred a hostile work
environment based on her race and sex and led to several instances where she
was singled out for criticism and mistreatment by the ranking officer,
1 Although plaintiff's penalty was reduced to a written reprimand and a one- year bar for application to any specialized unit on her appeal to the Joint Union Management Panel, Department regulations prohibit instructors at the Academy from having incurred any disciplinary sanction within three years of assignment. A-2883-21 2 Lieutenant Valentin, who denied her permission to attend the 2014 conference
of the Mid-Atlantic Association for Women in Law Enforcement; ordered her
to remove her name as an instructor that same year on a course taught by the
Department at Camden County College; reprimanded her in 2015 for failing to
advise him that one of the recruits was HIV-positive, thus preventing the
timely notation in the recruit's medical file to employ universal precautions in
the event of a medical emergency; blocked her from teaching classes necessary
to retain her instructor certificate; failed to include her on a list for firearms
training that year; prevented her from attending the 2015 graduation ceremony;
and in 2016 initiated the insubordination charges resulting in her transfer after
she told him she intended to file a harassment complaint against him during a
heated exchange on March 29, 2016, over the proper way to assist a recruit in
remediating a failed exam.
Plaintiff appealed the disciplinary action, and a departmental hearing
was conducted by a hearing officer from the Department's Office of Employee
Relations at which both Valentin and plaintiff testified. The Department
contended Valentin ordered plaintiff to write a report on March 29, the date of
their heated exchange, explaining how she performed remediation with
trainees; that she was required to have submitted that report by the end of her
A-2883-21 3 shift at 10:00 p.m.; and had not done so as of the date of the hearing almost a
month later. The Department claimed the Rules and Regulations applied to all
custody staff, and plaintiff's failure to comply with a lawful order by not
submitting the report by the end of her shift was insubordinate. Plaintiff's
union representative contended the charge was frivolous and filed in retaliation
for plaintiff having filed a complaint with the Department's Equal Employment
Division (EED). He claimed plaintiff tried to submit a report, but it was not
accepted by the Academy administration.
Plaintiff testified that Valentin had ordered her to write a special report
"about how she did not know how to do remediations." Plaintiff claimed she
responded by asking to speak with the Director of the Academy, and that she
"was going to file a harassment complaint." She also claimed that she wrote
her special custody report that evening "and she was going to turn it into the
Director" but was told by Sergeant Antoniello, another named defendant, that
the Director would not be in that evening and that she should "go home." She
testified that after she was interviewed for the Department's internal
investigation on April 4, "she tried to turn her report over to Director Cirillo,"
also a named defendant, "but the Director refused and told her that he did not
want to violate the chain of command."
A-2883-21 4 On cross-examination, plaintiff explained she didn't give Antoniello her
report because he told her to go home. Further, she testified "Antoniello never
asked for the report nor did she ever offer it to him," although admitting "for a
normal incident, she would turn her report into a supervisor," not the Director
of the Academy. The hearing officer wrote that "[w]hen asked to explain why
she did not turn in the report at a later date, SCO Hutchinson stated, 'No one
asked for the report.'" After hearing the evidence, the hearing officer sustained
the charge of insubordination and the five-day suspension.
Plaintiff appealed through her union to the Joint Union Management
Panel (JUMP) established for the review of minor discipline, which modified
the suspension "to an Official Written Reprimand (time served) with no back
pay" and barred plaintiff from applying to a specialized unit for one year.
Following an investigation of plaintiff's complaints of discrimination
and retaliation by Valentin dating from 2014, the EED issued a report in 2017
failing to find any violation of the Department's Policy Prohibiting
Discrimination in the Workplace or the Conscientious Employee Protection
Act, N.J.S.A. 34:19-1 to -14. The EED detailed its investigation into
plaintiff's allegations and its findings in an eleven-and-a-half-page single-
spaced letter to her.
A-2883-21 5 Plaintiff appealed the adverse finding to the Civil Service Commission.
In an affidavit submitted in support of her appeal, plaintiff averred that
Valentin had ordered her to complete a special custody report about how she
"didn't know how to remediate," to which she responded by asking to speak to
the Director and advising Valentin that she "would be filing a harassment
complaint against him." Plaintiff explained she completed the report but did
not turn it in as she "had intended to give it to Dir[ector] Cirillo." She also
averred that she had attempted to turn it in to the Director and Major
Manstream, another named defendant, on April 4, the same day she filed her
EED complaint, but neither would accept it.
Plaintiff also appealed her discipline, requesting that either "the charges
be completely reversed, or in the alternative, . . . if the . . . Commission
upholds the Official Written Reprimand, [that] she should receive back pay for
five days and not be banned from applying to unit for one year." The Civil
Service Commission consolidated plaintiff's appeal of the EED's determination
with her appeal of the discipline "due to common issues presented."
The Commission rejected plaintiff's appeal of her discipline, finding she
didn't "dispute that [Valentin] ordered her to file a report with him on the
March 29 incident, that she did not turn the report in to him that day as
A-2883-21 6 ordered, and that he was the appropriate person to receive the report under the
appointing authority's chain of command." The Commission also rejected
plaintiff's discrimination appeal, concluding plaintiff had failed to establish
"that she has been subjected to violation of the State Policy" Prohibiting
Discrimination in the Workplace. The Commission noted the EED had
interviewed fourteen witnesses, including all of the witnesses plaintiff
identified with personal knowledge of the events, Valentin, and reviewed
numerous documents. The Commission found "the investigation was thorough
and impartial," and that plaintiff had not met her burden of proving otherwise.
Judge Morgan granted the Department's motion for summary judgment,
finding plaintiff could not establish her claims for employment discrimination,
retaliation, or hostile environment under the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1 to -49, and that her CEPA claim was time-
barred.2 The judge found plaintiff established a prima facie case of race and
2 Plaintiff has not appealed the trial court's dismissal of her CEPA claims as time barred. She also failed to brief the aiding-and-abetting claims against the individual defendants in her merits brief. In response to the State noting that failure, plaintiff in her reply brief claims the issue wasn't briefed because the claims were dismissed based on the dismissal of her LAD claim. She argues "[a]iding and abetting is not separately addressed as there was no independent basis for summary judgment to be granted and there is nothing further to argue
A-2883-21 7 sex discrimination under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), as it is undisputed plaintiff is a
member of a protected class, was performing her job as an instructor at the
Academy and was involuntarily transferred from that position, which qualifies
as an adverse employment action under Mancini v. Twp. of Teaneck, 349 N.J.
Super. 527, 564 (App. Div. 2002).
The judge also found, however, that the Department "articulated
legitimate and non-discriminatory business reasons for plaintiff's transfer."
Specifically, plaintiff did not dispute that the Department requires all women
trainees to keep "their hair neatly groomed, trimmed, arranged and styled so its
beyond what has already been argued in regard to the other claims." We disagree.
Aiding-and-abetting liability under N.J.S.A. 10:5-12(e) "require[s] active and purposeful conduct." Tarr v. Ciasulli, 181 N.J. 70, 83 (2004). On summary judgment, plaintiff presented no direct evidence that any of the individually- named defendants had engaged in race or sex discrimination. Our Supreme Court has cautioned against confusing "the significance of a supervisor's act as a basis for an employer's liability with the significance of those same acts for purposes of the supervisor's individual liability." See Cicchetti v. Morris Cnty. Sheriff's Off., 194 N.J. 563, 595 (2008). Plaintiff failed to brief how the acts of the individual defendants exposed them to aiding-and-abetting liability under the statute. We therefore deem the claims abandoned. See New Jersey Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015); Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2025) (noting the well-settled principle "that an issue not briefed is deemed waived"). A-2883-21 8 bulk or length will not touch the ears or uniform shirt collar," and must not
interfere with the "wearing of all emergency" and "defensive tactics headgear."
Judge Morgan found the evidence on the motion established the Department
enforced its grooming policies for all trainees, regardless of race or sex (men
are required to shave their heads bald) and that enforcement "is necessary to
allow officers to effectively equip themselves with riot headgear."
Plaintiff also acknowledged Department policy prohibits correctional
officers from receiving any remuneration for acts undertaken in their official
capacity, such as teaching a course at a local college. She admitted there was a
$35 fee listed for the course she was scheduled to teach, and that she had failed
to advise Valentin she was not charging a fee prior to him becoming aware and
concerned that she would be receiving a fee in violation of the Department's
ethics rules.
Lastly, it was undisputed that plaintiff's transfer from the Academy was
as a result of her sustained insubordination charge arising out of her failure to
submit the special custody report Valentin ordered her to submit on March 29,
before she finished her shift. Plaintiff admitted on the motion that Valentin
had ordered her to submit the report before she asked to speak to the Director
and told Valentin she intended to file a harassment complaint against him. She
A-2883-21 9 also admitted the hearing officer found she was insubordinate on her appeal of
that charge, although the penalty was reduced to a written reprimand by the
JUMP panel, which the Civil Service Commission let stand. As Department
policy was clear that instructors could not serve at the Academy if they had
incurred a sustained disciplinary charge within three years, plaintiff was
transferred out of the Academy.
After giving plaintiff the benefit of all factual inferences to be drawn
from the evidence considered in the light most favorable to her, Judge Morgan
found plaintiff failed to establish the sort of inconsistencies or implausibilities
in the Department's proffered reasons that could allow her to get to a jury on
the issue of pretext. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)
(holding to avoid a "summary judgment, the plaintiff's evidence rebutting the
employer's proffered legitimate reasons must allow a factfinder reasonably to
infer that each of the employer's proffered non-discriminatory reasons was
either a post hoc fabrication or otherwise did not actually motivate the
employment action (that is, the proffered reason is a pretext).") (citations
omitted); Greenberg v. Camden City Vocational Tech. School, 310 N.J. Super.
189, 200 (App. Div. 1998).
A-2883-21 10 As to plaintiff's hostile work environment claim, Judge Morgan found
that even viewing the evidence on the motion in the light most favorable to
plaintiff, a "rational factfinder could not resolve this dispute" in her favor.
First, he noted that with regard to "the incidents relating to the HIV positive
trainee, the firearms training course and the graduation ceremony," plaintiff
testified at deposition that she didn't think they were based on her race or sex,
meaning she could not rely on the incidents to support her hostile environment
claim. See Herman v. Coastal Corp., 348 N.J. Super. 1, 20 (App. Div. 2002)
(speaking of a sexually hostile work environment claim, "[t]he defining
element in hostile work environment cases is not that the conduct was sexual
in nature, but that the harassment occurs because of the employee's gender").
And none of the individual defendants had anything to do with setting up the
instruction cycles plaintiff complained she was not scheduled to participate in.
Judge Morgan found no reasonable jury could conclude the remaining
incidents, the issue over the Black trainees' hair, the initial denial of plaintiff
attending the Women in Law Enforcement conference, and the insubordination
charge, were sufficient to establish a hostile work environment based on
plaintiff's race or sex. As to the Department's grooming policy, there is no
evidence in the record that Valentin singled plaintiff out for criticism. The
A-2883-21 11 record reveals he called a meeting attended by seven or ten other instructors,
men and women, white and Black, in which he reprimanded all of them for not
enforcing the Department's grooming policies. There was ample evidence in
the record that plaintiff's initial requests to attend the conference were denied
because plaintiff had failed to complete the Department forms required for
approval. And plaintiff's insubordination charge and subsequent transfer the
judge had already found were supported by a legitimate business reason
"entirely separate and apart from her gender or race."
The judge noted that the Academy, like the rest of the Department, is a
quasi-military organization, "governed by policies that must be enforced," and
that the interrelationships among staff "are more structured" and their
communications perhaps more "abrupt than [in a] non-military working
environment." The judge concluded that plaintiff simply failed to demonstrate
that any actions by defendants were sufficiently "severe and pervasive" to
make a reasonable Black woman believe her working conditions were altered
due to her protected class status. See Lehmann v. Toys 'R' Us, Inc., 132 N.J.
587, 603 (1993).
Although the judge was satisfied plaintiff established a prima facie case
of retaliation based on her advocacy for the Black trainees and the
A-2883-21 12 insubordination charge and her subsequent transfer, he found the Department
had articulated legitimate and non-discriminatory reasons for the actions it
took in regard to each, and that plaintiff had not marshaled evidence to create a
factual dispute that the Department's reasons were pretextual.
Plaintiff appeals, contending the trial court erred in dismissing her
discrimination claim without consideration of the disparate impact on plaintiff
and the five trainees of "Valentin's 'race neutral'" application of the grooming
policy; that the proofs on the motion record showed "a pattern of antagonism"
satisfying the "severe and pervasive" requirement, thus demonstrating the
court's error in dismissing her hostile environment claim; and that the court
erred in dismissing her retaliation claim based on a dispute of fact as to
plaintiff's efforts to turn in her special report by the end of her shift.
We deem plaintiff's first two points as without sufficient merit to
warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). Plaintiff
never attempted to establish a disparate impact case and the proofs in the
record fall far short of doing so. See Schiavo v. Marina Dist. Dev. Co., LLC,
442 N.J. Super. 346, 370 (App. Div. 2015) ("An adverse effect on a single
employee, or even a few employees, is not sufficient to establish disparate
impact.") (quoting Massarsky v. Gen. Motors Corp., 706 F.2d 111, 121 (3d
A-2883-21 13 Cir.), cert. den., 464 U.S. 937 (1983)). The trial court was undoubtedly correct
that no reasonable jury could find a hostile work environment based on those
incidents occurring over a two-year period that plaintiff attributed to her race
or sex under the Lehmann standard.
Plaintiff claims the court erred in dismissing her retaliation claim
because it overlooked the testimony in her deposition that she attempted to
turn in her special custody report to Antoniello before the end of her shift on
the day Valentin had ordered her to write the report on how she conducts
remediations. In her Rule 4:46-2(b) statement of material facts, plaintiff
claimed that "[a]fter plaintiff wrote the report, she spoke to Sgt. Antoniello
who told her he could not accept the report. He also told her to leave the
building until Lt. Valentin left and wait for Director Guy Cirillo. Director
Cirillo never arrived, but Sgt. Antoniello still said he could not take the
special."
Plaintiff supported the statement with a specific reference to her
deposition in which she testified:
Sergeant Antoniello said: Well, you can't write a special and give it to me because at this point you say that you wanted to file charges against him. So therefore, now we can't even discuss him at all.
A-2883-21 14 So he told me to — he told me to go on the other side and wait a minute. I went on the other side. He comes out and says: I contacted Director Guy Cirillo. I want you to leave the building until Lieutenant Valentin is gone.
Once Lieutenant Valentin left, I came back to the building and I waited for Director Cirillo, [who] never showed up. By then Sergeant Antoniello came in there and he said: Guy's not — he's not here yet. So I'm just going to release you. Just go home.
I asked him again: What am I supposed to do with the special? He said: I can't take nothing — I can't take nothing from you, Hutch.
And that's how kind of just went — it ended, that night ended with him sending me home and nobody asked — nobody taking the special.
When defense counsel followed up by asking: "So you never turned the report
in?" Plaintiff replied: "Nobody would take the report to turn it in. There was
no one to turn it in to."3 Antoniello was asked at his deposition whether
3 The Department responded to plaintiff's statement of material fact by replying:
State Defendants admit only that Hutchinson testified at her deposition consistent with the assertions contained in this paragraph. This court should disregard this paragraph as it is not sufficient to create a disputed issue of material fact on summary judgment for the reasons provided in response to Paragraphs 5 to 11 and 14 to 61 of the RRSOUMF, which
A-2883-21 15 plaintiff had tried to turn in the report to him that night. He responded by
saying: "No, she was very adamant about not writing the report."
Summary judgment is, of course, only appropriate where there is no
genuine issue of material fact, and the moving party is entitled to judgment as
a matter of law. R. 4:46-2(c). We, thus, would ordinarily agree with plaintiff
that the trial court overlooked a dispute over a genuine issue of fact material to
plaintiff's retaliation claim — that plaintiff was prevented from submitting her
special custody report on the day it was due because Antoniello refused to
accept it after plaintiff announced her intention to file a harassment complaint
defendants identify as "State defendants' response to plaintiff's response to State defendants' statement of undisputed material facts."
That is, without doubt, an inappropriate way to respond to an adversary's statement of material facts — by referring the court to fifty-three responses explaining why the "court should disregard this paragraph as it is not sufficient to create a disputed issue of material fact on summary judgment." The Rule requiring statements of material fact is "intended to focus . . . attention on the areas of actual dispute" and "significantly facilitate the court's review" of the motion papers, Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 4:46-2 (2025), not force the trial (and appellate) court to wade through pages of redundant argument in search of specific facts. See Lyons v. Twp. Of Wayne, 185 N.J. 426, 435-36 (2005) ("A party's failure to comply with the requirements of Rule 4:46-2 can result in a considerable waste of judicial time and resources when trial and appellate courts are forced to search for factual issues by sifting through voluminous and confusing records — work that should be performed by the parties."). A-2883-21 16 against Valentin. Obviously, if defendants impeded plaintiff from complying
with a lawful order and then charged her with insubordination for failing to
comply, plaintiff's retaliation claim should not have been decided on summary
judgment. See Parks v. Rogers, 176 N.J. 491, 502 (2003) ("Plaintiff was
entitled to submit her case to a jury unless defendants sustained their 'burden
of showing clearly the absence of a genuine issue of material fact.'") (quoting
Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954)).
But here, the factual dispute is created not by the conflicting statements
of the parties but by plaintiff's own conflicting sworn statements at the
departmental hearing and in an affidavit to the Civil Service Commission
about why she failed to turn in her special before the end of her shift , and her
deposition testimony cited in opposition to summary judgment. Although at
her deposition plaintiff testified she failed to turn in the report because
Antoniello refused to accept it, she testified at the departmental hearing she
didn't give it to Antoniello because he told her to go home, and he "never
asked for the report" and she never "offer[ed] it to him." In her affidavit to the
Civil Service Commission, she swore she completed the report but did not turn
it in because she "had intended to give it to Dir[ector] Cirillo."
A-2883-21 17 Although our Supreme Court has stated unequivocally that "[s]ham facts
should not subject a defendant to the burden of a trial," it has also explained
that trial courts should not grant summary judgment where the contradiction
between a party's sworn statement and her deposition testimony "is reasonably
explained, where an affidavit does not contradict patently and sharply the
earlier deposition testimony, or where confusion or lack of clarity existed at
the time of the deposition questioning and the affidavit reasonably clarifies the
affiant's earlier statement." Shelcusky v. Garjulio, 172 N.J. 185, 201 (2002).
This case presents that patent and sharp contradiction. We are
convinced plaintiff's material fact statement claiming that after she wrote the
report Valentin ordered prior to ending her shift, "she spoke to Sgt. Antoniello
who told her he could not accept the report" was appropriately disregarded in
light of her earlier sworn testimony that she didn't give Antoniello her report
because "he told her to go home" and that "Antoniello never asked for the
report nor did she ever offer it to him." See Carroll v. New Jersey Transit, 366
N.J. Super. 380, 388 (App. Div. 2004) (noting "where [a] plaintiff's
contradiction is unexplained and unqualified, he 'cannot create an issue of fact
simply by raising arguments contradicting his own prior statements and
representations.'") (quoting Mosior v. Ins. Co. of N. Am., 193 N.J. Super. 190,
A-2883-21 18 195 (App. Div. 1984)). See also Metro Mktg., LLC v. Nationwide Vehicle
Assurance, Inc., 472 N.J. Super. 132, 137 (App. Div. 2022) (applying the sham
affidavit doctrine to hold the trial court appropriately disregarded on summary
judgment a "side-switching employee's certifications" disavowing prior
deposition testimony given when he was employed by a competitor).
Plaintiff's material fact statement about attempting to submit her special
custody report to Antoniello, who refused to accept it, provided no impediment
to the entry of summary judgment on plaintiff's retaliation claim given her
earlier sworn statements that she had never offered the report to him.
Affirmed.
A-2883-21 19