NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1886-17T4
MARRISA TAYLOR-MUNGER,
Plaintiff-Appellant,
v.
COUNTY OF UNION, UNION COUNTY DEPARTMENT OF CORRECTIONAL SERVICES, KEVIN BURKERT, individually and in his official capacity, and BRIAN RIORDAN, individually and in his official capacity,
Defendants-Respondents. _______________________________
Argued December 20, 2018 – Decided July 15, 2019
Before Judges Simonelli, Whipple and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2708-15.
Tiana Gimbrone argued the cause for appellant (Rinaldo and Rinaldo, attorneys; Matthew T. Rinaldo and Tiana Gimbrone, on the brief). Steven H. Merman, Assistant County Counsel, argued the cause for respondents County of Union and Union County Department of Correctional Services (Robert E. Barry, Union County Counsel, attorney; Steven H. Merman, on the brief).
Michael S. Simitz argued the cause for respondent Kevin Burkert (Kologi Simitz, attorneys; Michael S. Simitz, of counsel and on the brief).
Christina M. DiPalo argued the cause for respondent Brian Riordan (LaCorte, Bundy, Varady & Kinsella, attorneys; Robert F. Varady and Christina M. DiPalo, on the brief).
PER CURIAM
Plaintiff Marrisa Taylor-Munger appeals from three November 17, 2017
orders of the Law Division collectively granting summary judgment to
defendants Union County, Kevin Burkert, and Brian Riordan, and dismissing
plaintiff's claims under the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49. The trial court found plaintiff's claims were barred by
the two-year statute of limitations, N.J.S.A. 2A:14-2(a), and did not fall within
the continuing violation doctrine. We affirm.
I.
We derive the following facts from the evidence submitted by the parties
in support of, and in opposition to, the summary judgment motions, viewed in
the light most favorable to plaintiff. Elazar v. Macrietta Cleaners, Inc., 230 N.J.
A-1886-17T4 2 123, 135 (2017). Plaintiff is a woman of Irish, German, Indian, and African-
American descent. At the times relevant to this appeal she was a corrections
officer at the Union County Jail. Burkert, a white male, was a sergeant at the
jail, a first-list supervisory position. His brother, who also worked at the jail,
was a delegate for PBA Local 199 (union) representing officers at the facility.
Riordan was the Director of the county's Department of Corrections. He had
disciplinary control and oversight of corrections officers at the jail.
In June 2008, shortly after plaintiff was hired, she had a tense exchange
with Burkert. According to plaintiff, Burkert appeared before a group of newly
hired corrections officers and informed them that in order to stay in the good
graces of the union, they may not accept overtime hours for the first ninety days
of their employment. Plaintiff, whose mother was a supervisor at the jail,
challenged Burkert in front of the other officers, asserting that no prohibition on
overtime hours exists for new officers. She also inferred that Burkert needed
overtime hours to satisfy his alimony payments. Plaintiff alleged that Burkert
told her she was going against the union.
In 2011, plaintiff ran for election to the position of trustee at the union.
She alleged Burkert told another employee that his brother would do everything
in his power to make sure plaintiff did not get any votes and would keep her
A-1886-17T4 3 from receiving an administrative position. Plaintiff lost the election and
challenged the results, which upset members of the union. A union official
thereafter initiated an investigation into whether plaintiff was stealing county
time, which she alleged was in retaliation for her decision to appeal the election
results. Union officers accused plaintiff of illegally wearing a wire, and told
union members not to trust plaintiff because she was a rat. Plaintiff conceded
that other officers who challenged the union were treated in a similar manner.
Plaintiff filed an internal harassment and hostile work environment
complaint with her employer based on her treatment by union officers. The
county began an investigation into Burkert and his brother. Plaintiff ultimately
withdrew the complaint and her appeal of the election results when the union
posted a letter that exonerated her of wrongdoing and declared her a union
member in good standing.
After the issues with the union were resolved, plaintiff alleged that
Burkert continued to harass her. In October 2012, plaintiff met with Riordan to
complain about Burkert's behavior. Riordan advised plaintiff to file a report
with John Boles, the county's Affirmative Action Officer.
On October 3, 2012, plaintiff filed a harassment complaint with Boles
alleging:
A-1886-17T4 4 1. On September 3, 2011, Burkert became angry with plaintiff for failing to secure a piece of broken metal on her post properly. Plaintiff was under the belief that she could secure the metal without informing her supervisor right away. However, Burkert told her that she needed to call him immediately in such circumstances. While out of view of other employees, Burkert chastised plaintiff and told her he's "got her ass" and that she would "fucking get it." Plaintiff stated that she feared that he was going to harm her physically. She was not disciplined for this incident, but stated that she believed Burkert's behavior was due to her union activities.
2. On November 25, 2011, Burkert pulled another officer off their post in order to inquire about plaintiff.
3. On June 19, 2012, Burkert yelled and flailed his arms at plaintiff for having pepper spray on her person while on duty, which was a violation of county rules. She was required to submit an operations report but was not disciplined. Plaintiff felt afraid during the incident because Burkert looked like he was losing control.
4. On July 3, 2012, Burkert entered the booking area even though he was not assigned there and stared at plaintiff for five to ten seconds. Burkert did not speak to plaintiff but told another officer to put his handcuffs on his belt and then left the area.
5. On July 24, 2012, plaintiff asked Burkert for permission to move her car. He told her to stand by, and later started screaming over the radio at plaintiff, directing her to not to leave her post. An elevator had been called to plaintiff's floor, which Burkert assumed meant plaintiff had ignored his order.
A-1886-17T4 5 6. On August 18, 2012, Burkert entered plaintiff's work area in the booking office, which Burkert was known to not frequent often, and stared at her for five to ten seconds before leaving without incident.
7. On August 19, 2012, Burkert screamed at plaintiff because he erroneously believed she was improperly wearing pepper spray. Burkert told her not to get snippy with him when she demonstrated that she was not wearing pepper spray. Plaintiff stated that she was scared for her physical well-being because Burkert's behavior was aggressive and escalating.
8. On October 3, 2012, Burkert was assigned as plaintiff's direct supervisor in the medical unit. In an attempt to avoid working with Burkert, plaintiff tried switching assignments with another officer but Burkert denied the switch. During the shift, plaintiff was called to the shift commander's office. Burkert thought plaintiff had abandoned her post and screamed at her for not finding a replacement.
9. On October 4, 2012, plaintiff again wanted to switch her post to avoid Burkert, who was supervising her overtime assignment. She went over Burkert's head to the shift commander to obtain the switch because she knew Burkert would have denied the request. When Burkert found out about the switch, he attempted to stop it and gave plaintiff a verbal reprimand.
Plaintiff concedes Burkert never used racist or sexist language during these
encounters. She believes, however, that his animosity towards her stems from
her being a female who stood up for herself.
A-1886-17T4 6 On September 13, 2013, Boles sent plaintiff the results of the
investigation. Although the investigation concluded that some of plaintiff's
allegations of harassment were unsubstantiated, it found other allegations were
proven. The county determined that Burkert's harassment was not based on
plaintiff's race or gender. Burkert received a thirty-day suspension and entered
into a "last chance" agreement with the county, which provided that any further
discipline would result in his termination.
In light of the investigative findings, Riordan issued a directive that
Burkert not directly supervise plaintiff. Since the establishment of the directive,
plaintiff has never worked with Burkert as her supervisor, and she testified that
in those instances when Burkert was assigned as her supervisor, he was
immediately reassigned on her request.
After issuance of the report but prior to the imposition of discipline,
plaintiff met with Riordan. He informed her that he was going to attempt to
terminate Burkert, but Burkert had rights with respect to termination and
discipline.
Plaintiff alleged three incidents involving Burkert occurred while the
investigation was underway. She acknowledged that she did report those
incidents to the county. According to plaintiff, on December 2, 2012, Burkert
A-1886-17T4 7 yelled at both plaintiff and another officer for abandoning their post. However,
plaintiff was properly relieved from her post, and once she demonstrated that
fact the incident ended.
On January 3, 2013, plaintiff was assigned to the laundry. Burkert came
down and asked why inmates were not present. After plaintiff explained that
the inmates were still eating breakfast, Burkert lost his temper and called another
officer demanding that the inmates be brought to the laundry immediately.
Finally, on September 9, 2013, Burkert yelled over the radio at another officer
while plaintiff was present.
Plaintiff alleged additional incidents occurred after the county
investigation was complete. On December 30, 2013, Burkert entered the control
center, where plaintiff was present and wearing her suicide knife, and said that
he was going to start writing up officers who were not wearing a suicide knife.1
On March 11, 2014, while plaintiff was assigned to the medical unit, Burkert
pushed an inmate's face into a glass door and looked at plaintiff while doing so.
On May 14, 2014, plaintiff filed a complaint with the Equal Employment
Opportunity Commission (EEOC). She alleged she was harassed by Burkert and
that the county failed to take appropriate disciplinary action against him.
1 A suicide knife is a tool to cut a noose in the event of an inmate suicide attempt. A-1886-17T4 8 While the EEOC complaint was under investigation, plaintiff filed a
complaint with the county alleging continued harassment by Burkert. She
alleged Burkert overheard two officers discussing plaintiff's complaints against
him and ordered them to submit a report. She also alleged Burkert was filing
reports with her name in them when she had nothing to do with the situation s
detailed in the reports. Plaintiff alleged that this demonstrated Burkert's
obsession with her.
On December 2, 2014, plaintiff filed another complaint with the county.
She alleged that on October 20, 2014, Burkert was in the control center staring
at her through the glass. Plaintiff alleged she had to have another officer return
her keys to avoid Burkert. Additionally, plaintiff alleged that while she was
clocking out, Burkert appeared and stayed there in order to intimidate her.
On March 3, 2015, Boles sent plaintiff the results of the investigation of
her internal complaints, concluding Burkert did not violate any county policy.
Boles stated that he doubted Burkert committed the alleged actions because he
was aware he was operating under a "last chance" agreement and "a reasonable
man would not jeopardize his job to engage in such an encounter as described[.]"
In addition, he concluded "Burkert was not attempting to harm or harass"
plaintiff and his conduct did not constitute harassment.
A-1886-17T4 9 On December 14, 2014, the EEOC issued its final determination. It found
plaintiff was subject to discrimination because of sex and race, and retaliation.
In addition, the EEOC concluded that despite the county stating it took
appropriate corrective action, plaintiff continued to be subject to harassment in
an "egregious and threatening manner." The agency determined the county
failed to take effective remedial action against Burkert after receiving
complaints from plaintiff and other African-American female employees.
Plaintiff alleged no instances of direct harassment by Burkert after 2014.
However, plaintiff alleged that Burkert is harassing coworkers who are her
friends in order to get to her. At her deposition, plaintiff conceded she has no
proof that Burkert's interactions with these officers are motivated by a desire to
harass her, or that he even knows they are plaintiff's friends.
On July 22, 2015, plaintiff filed a complaint in the Law Division alleging
Burkert harassed her based on race and gender, and as a form of retaliation, on
a continuous and regular basis since May 2011 in violation of the LAD. She
alleged that Riodan and the county aided and abetted Burkert by failing to take
sufficient measures to discipline him and protect her from his harassment.
Plaintiff also alleged claims of intentional infliction of emotional distress,
common law assault, negligence, reckless or intentionally deficient supervision
A-1886-17T4 10 and retention, violation of terms of employment, and breach of covenant of good
faith and fair dealing. She sought compensatory and punitive damages.
After the close of discovery, defendants moved for summary judgment.
On November 27, 2017, the trial court issued an oral opinion granting their
motions. The court concluded that plaintiff's claims were time-barred. Noting
that the complaint was filed on July 22, 2015, and that claims under the LAD
are subject to a two-year limitations period, the court examined each incident
alleged to have taken place after July 22, 2013, and determined that plaintiff
failed to produce proof suggesting any of the incidents were based on her race
or gender, or constituted retaliation under the LAD. The court instead found
that the only evidence in the record of motive was Burkert's animus towards
plaintiff's union activities and her challenge to the results of the union election.
The court found just one allegation "that would remotely suggest"
discriminatory acts by Burkert based on plaintiff's race or gender: her June 2012
encounter with Burkert regarding plaintiff wearing a can of pepper spray while
on duty. Plaintiff alleged that Burkert did not have the same reaction to white
female employees or male employees who also had pepper spray in the jail. This
event, however, took place prior to July 22, 2013, and was, therefore, time
barred. The court concluded that because plaintiff produced no evidence of
A-1886-17T4 11 discrimination after July 22, 2013, the continuing violation doctrine did not
permit the late filing of claims related to the June 2012 incident.
On November 17, 2017, the trial court entered three orders, each granting
summary judgment in favor of one of the defendants. 2 This appeal followed.
II.
Plaintiff argues the trial court erred in finding her LAD claims were time-
barred, misapplied the continuing violation doctrine, and failed to recognize the
cumulative pattern of ongoing harassment she suffered directly related to her
race and gender. We disagree.
We review [a] motion for summary judgment using the same standard applied by the trial court––whether, after reviewing "the competent evidential materials submitted by the parties" in the light most favorable to [the non-moving party], "there are genuine issues of material fact, and, if not, whether the moving party is entitled to summary judgment as a matter of law."
[Grande v. Saint Clare's Health Sys., 230 N.J. 1, 23-24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).]
2 The court also granted summary judgment in favor of defendants on plaintiff's common law claims. Plaintiff does not address those claims in her brief. We therefore deem any arguments with respect to those claims waived. "[A]n issue not briefed is deemed waived." Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief). A-1886-17T4 12 "An issue of material fact is 'genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the motion, together
with all legitimate inferences therefrom favoring the non-moving party, would
require submission of the issue to the trier of fact.'" Id. at 24 (quoting Bhagat,
217 N.J. at 38).
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 LAD 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.
[Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002).]
The statute of limitations for LAD claims is two years. Alexander v. Seton
Hall Univ., 204 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. "Discriminatory termination and other similar abrupt, singular adverse
A-1886-17T4 13 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.
Claims of harassment, however, may be based on a number of allegedly
discriminatory acts constituting a pattern of behavior. The continuing violation
doctrine is a "judicially created doctrine . . . developed as an equitable exception
to the statute of limitations." Bolinger v. Bell Atl., 330 N.J. Super. 300, 306
(App. Div. 2000). As our Supreme Court explained, "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,
204 N.J. at 230 (alteration in original) (quoting Roa v. Roa, 200 N.J. 555, 567
(2010)). The Court warned, however, "[w]hat the doctrine does not permit is
the aggregation of discrete discriminatory acts for the purpose of reviving an
untimely act of discrimination that the victim knew or should have known was
actionable." Roa, 200 N.J. at 569.
Plaintiff concedes that she was not subject to a discrete adverse
employment action at any time, either before or after the July 22, 2013
limitations period. She instead alleged a pattern of harassing acts by Burkert
A-1886-17T4 14 that began prior to July 22, 2013, and continued through the filing of the
complaint. Our review of the record, in light of the applicable legal standards,
leads us to the same conclusion reached by the trial court: plaintiff did not raise
a genuine issue of material fact on which a reasonable jury could conclude
Burkert's alleged harassing behavior on any occasion after July 22, 2013, was
motivated by plaintiff's race or gender. Burkert made no explicit reference to
plaintiff's race or gender and no verbal remarks that could reasonably be
interpreted as suggesting a discriminatory intent on his part. Nor could a
discriminatory intent be implied from Burkert's prior interactions with plaintiff.
The incidents alleged by plaintiff to have taken place after July 22, 2013,
if accepted as true and interpreted in the light most favorable to her, amount to
Burkert: (1) carrying out his responsibilities as a sergeant by making a general
statement to a group of employees that included plaintiff; (2) acting in an
unfriendly, and possibly intentionally intimidating, manner by briefly staring at
plaintiff, appearing where he knows she might be present, or yelling at another
employee over a radio; (3) incorrectly including her name in incident reports;
(4) directing employees to write an incident report about plaintiff; and (5)
harassing plaintiff's coworker friends. While plaintiff paints a picture of an
unpleasant colleague intent on making her uncomfortable at work, she cannot
A-1886-17T4 15 demonstrate that his acts after July 22, 2013, were motivated by racial or gender
animus. The record suggests instead that Burkert and plaintiff have a history of
tension associated with union activity that began almost immediately after
plaintiff started working at the jail.
While we do not condone Burkert's behavior, the LAD is not intended to
be a general workplace civility code. Discourtesy or rudeness should not be
confused with racial or gender discrimination. Herman v. Coastal Corp., 348
N.J. Super. 1, 21 (App. Div. 2008); see also Shepherd, 174 N.J. at 25. Plaintiff
has not produced evidence that Burkert's acts after July 22, 2013, while
inappropriate and, perhaps, worthy of discipline, were unlawful discrimination
under the LAD. The trial court correctly dismissed plaintiff's complaint as time
barred.
Affirmed.
A-1886-17T4 16