NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4179-18T3
NADINE HELLER,
Plaintiff-Appellant,
v.
MIDDLESEX COUNTY COLLEGE, JOANN LAPERLA-MORALES, DAVID EDWARDS, and WALTER DEANGELO,
Defendants-Respondents. ___________________________
Submitted September 15, 2020 – Decided October 29, 2020
Before Judges Gilson and Moynihan
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7433-15.
James P. Gianakis, attorney for appellant.
Kelso & Burgess, attorneys for respondent Middlesex County College (Kurt J. Trinter, on the brief).
Martin, Kane, Kuper, LLC, attorneys for respondent Joann LaPerla-Morales (John W. Harding, on the brief). Hoagland, Longo, Moran, Dunst & Doukas, attorneys for respondent David Edwards (Jennifer Passannante, of counsel and on the brief).
Dvorak & Associates, LLC, attorneys for respondent Walter DeAngelo, join in the brief of respondent Middlesex County College.
PER CURIAM
Plaintiff Nadine Heller is an associate professor at Middlesex County
College (MC College). She sued MC College and three senior administrators:
then-President Joann LaPerla-Morales, then-Dean David Edwards, and then-
Director of Human Resources Walter DeAngelo. Plaintiff contended that
defendants violated the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14, and engaged in gender discrimination, harassment, and
retaliation in violation of the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49. She also claimed defendants committed several torts and
unjustly enriched themselves at her expense.
Plaintiff appeals from orders denying her request to compel and extend
discovery, granting summary judgment to defendants, and dismissing all her
claims. She also appeals from several orders denying motions for
reconsideration. We affirm the orders concerning discovery and
reconsideration. We affirm in part and reverse in part the orders granting
A-4179-18T3 2 summary judgment to defendants. Specifically, we affirm the orders granting
summary judgment to LaPerla-Morales and DeAngelo. We also affirm the
orders that dismissed with prejudice plaintiff's tort and unjust enrichment claims
against MC College and Edwards. Moreover, we affirm the orders that dismiss
with prejudice plaintiff's LAD claim based on retaliation. We reverse and
remand plaintiff's claims against MC College and Edwards under CEPA and
LAD gender discrimination and harassment.
I.
We summarize the relevant facts from the record, viewing them in a light
most favorable to plaintiff, the non-moving party. Globe Motor Co. v. Igdalev,
225 N.J. 469, 480 (2016) (citing R. 4:46-2(c)). In March 2008, plaintiff was
hired by MC College as an assistant professor and chair of the Visual Performing
and Media Arts Department (VPMA Department). As an assistant professor,
plaintiff was a member of the MC College faculty and had various teaching
responsibilities. Five years later, in March 2013, she was tenured as an associate
professor. Plaintiff is still employed in that position.
As chair of the VPMA Department, plaintiff was a member of the
administration and was responsible for overseeing the department, including its
staff, budget, and programs. She reported to and coordinated with the Dean of
A-4179-18T3 3 Arts and Sciences if she wanted to change the department's curriculum, budget,
or faculty. Edwards held the position of Dean of Arts and Sciences from August
2010, when he joined MC College, until July 2016, when he left the college for
other employment.
In February 2013, MC College conducted a performing arts exhibit known
as "Radio Heads." The exhibit included an outdoor radio tower, which stood
approximately twenty feet high and played music. The construction of the tower
was overseen by Tony Ross, who was responsible for theater production sets at
MC College. Ross was a member of the VPMA Department and reported to
plaintiff.
Several safety concerns were raised after the tower’s construction, and it
was ultimately taken down. President LaPerla-Morales believed Ross should be
disciplined because the tower had not been properly constructed. Accordingly,
Edwards directed plaintiff to issue a letter of discipline to Ross. Plaintiff
objected, informing Edwards that she did not think Ross should be disciplined ,
and she believed the letter did not comply with union discipline procedures.
Nevertheless, plaintiff issued the letter to Ross because she was up for tenure
and felt threatened by Edwards.
A-4179-18T3 4 Later, Ross filed a grievance concerning the discipline. Eventually, Ross's
union and MC College resolved the dispute by removing the letter from his
personnel file and replacing it with an advisory memorandum that was part of
Ross's evaluation.
Plaintiff asserts that following the radio tower incident, Edwards began to
retaliate against her. She claims that over the next two years, Edwards (1) set
up meetings with her, but then did not hold the meetings; (2) failed to tell her
about other meetings until just before the meeting so she was not prepared; (3)
set and thereafter changed his expectations; (4) stopped regularly
communicating with plaintiff and ignored reports from her; (5) cut financial
support to the VPMA Department; (6) took control of theater productions away
from her; (7) engaged in "repeated inflammatory and defamatory rhetoric to and
about plaintiff and her performance"; and (8) gave her a poor performance
evaluation in September 2014.
Plaintiff contends that she raised her concerns about Edwards's improper
treatment of her to numerous administrators at MC College. Those
administrators included Dean Marlene Laskowski-Sachnoff; Assistant Dean
Kathleen Perle; Laura Cahill, a member of the Human Resources Department;
Alison Rolling, a member of the Human Resources Department; Warren
A-4179-18T3 5 Kelemen, a special advisor to the president of MC College; and Cathy Lynch,
Director of Labor and Human Resources.
In November 2014, Lynch initiated an investigation into plaintiff's
concerns about Edwards. That investigation was conducted by the outside law
firm, Wilentz Goldman & Spitzer. Plaintiff asserts she was never given a copy
of the resulting report. A copy of the report was produced in discovery and was
included in a confidential appendix submitted to us. The investigation focused
on the radio tower incident and plaintiff's claims of retaliation by Edwards. The
report ultimately concluded that there was nothing "illegal or improper about
the actions complained of by [plaintiff]."
Separate from the radio tower incident, plaintiff claims that she reported
eight complaints of harassment by female MC College students, but MC College
failed to take timely responsive action. For example, plaintiff asserts that in
April 2014, she told Edwards that a female student reported that she had been
sexually harassed by MC College's Director of Facilities. According to plaintiff,
Edwards told her to "bury" the incident.
Plaintiff also claims she reported other student complaints concerning
sexual and gender harassment to MC College administrators, but the college
failed to investigate those complaints or to follow up with the students. In
A-4179-18T3 6 addition, plaintiff contends that she gathered documents and information that
were provided to the federal Office of Civil Rights. Thereafter, the Office of
Civil Rights launched an investigation under Title IX of the Education
Amendments Act of 1972, 20 U.S.C. §1681.
MC College disputes plaintiff's claims concerning the student complaints.
The college asserts that most of the reports of student complaints were made by
Amanda Lyons and plaintiff was not the person who made the complaints to the
Office of Civil Rights. MC College also maintains that its Human Resources
Department investigated the student-harassment claims. The students were
interviewed, and a report of their claims was submitted to senior administrators
at the college.
In December 2014, plaintiff was notified that she would not be renewed
as chair of the VPMA Department. She asserts that the decision was made in
retaliation for her complaints about the improper discipline of Ross for the radio
tower incident and her complaints about student-harassment claims.
In contrast, MC College asserts that plaintiff was removed as chair
because of her poor performance. According to MC College, all chair positions
at the college are contractual positions subject to annual renewal. The decision
to not renew plaintiff as chair of her department was made by Mark McCormick,
A-4179-18T3 7 with input from Edwards. McCormick had joined MC College in August 2014
as Vice President of Academic and Student Affairs. McCormick and Edwards
had concerns about plaintiff's management of the VPMA Department, including
her ability to handle budget and personnel issues.
Plaintiff was removed as chair of the VPMA Department in mid-
December 2014. Initially, she was replaced by Assistant Dean Terry Orosz, who
acted as an interim chair. Thereafter, Amy Hogan was hired as the new chair.
Both Orosz and Hogan are women. Following her removal as chair, plaintiff
continued to be a member of the administration and her salary and benefits did
not immediately change. She also continued to hold the position of associate
professor at the college.
On January 15, 2015, plaintiff's lawyer sent McCormick a letter
concerning plaintiff's non-renewal as chair and her employment status at the
college. Thereafter, plaintiff requested and received administrative leave for the
spring 2015 semester. She returned in the fall of 2015 and worked as an
associate professor. She contends, however, that she was required to teach at
night and at inconvenient locations. She also asserts that she was required to
work four days a week while other professors were permitted to work three days
a week.
A-4179-18T3 8 On December 10, 2015, plaintiff sued MC College, LaPerla-Morales,
Edward, and DeAngelo. She asserted nine causes of action: (1) violations of
CEPA; (2) violations of LAD based on gender discrimination; (3) violations of
LAD based on harassment because of her gender; (4) violations of LAD based
on retaliation; (5) defamation; (6) tortious interference; (7) unjust enrichment;
(8) intentional infliction of emotional distress; and (9) negligent infliction of
emotional distress.
Defendants filed answers and the parties engaged in discovery for over
three years. During discovery, documents were exchanged, and all the parties,
as well as other witnesses, were deposed. Discovery was initially set to close in
April 2017, but that deadline was extended several times, and discovery finally
closed on February 15, 2019.
Defendants moved for summary judgment on two occasions. Defendants
first filed for summary judgment in February 2018. Following several
adjournments, on June 1, 2018, the trial court granted summary judgment in
favor of all defendants. Plaintiff sought reconsideration, contending that she
was still seeking discovery. The court granted reconsideration, vacated the June
1, 2018 order, and allowed plaintiff to file a motion to reopen discovery.
A-4179-18T3 9 Plaintiff did not move to reopen discovery in 2018. In September 2018,
the court scheduled the trial for December 3, 2018. Defendants filed their
second round of summary judgment motions in late September and early
October 2018.
In November 2018, on its own initiative, the court reopened discovery,
established February 15, 2019, as a new end date for discovery, and adjourned
defendants' summary judgment motions until March 2019.
On January 9, 2019, plaintiff moved to compel discovery from defendants.
Approximately two weeks later, on January 28, 2019, the trial court granted that
motion in part and denied it in part. The court ordered defendants to respond
with certifications explaining what discovery had been produced, and if certain
discovery had not been produced, why it did not exist. Defendants filed
certifications on February 11, 2019.
On February 15, 2019, the trial court found that defendants had satisfied
their discovery obligation and denied plaintiff's request to compel and extend
discovery. On March 6, 2019, plaintiff moved for reconsideration. Defendants
filed opposition and cross-moved to bar plaintiff's late discovery request.
After several adjournments, the court heard oral arguments on all pending
motions, which included the discovery-related motions and defendants' motion
A-4179-18T3 10 for summary judgment. That same day, the court issued a series of o rders (1)
denying plaintiff's motion to reconsider the February 15, 2019 order denying her
request to compel more discovery and closing discovery; and (2) granting
summary judgment in favor of all defendants.
On April 18, 2019, the trial court issued a forty-three-page written opinion
explaining its rulings. The court first summarized the procedural history,
pointing out that plaintiff's counsel had been less than diligent in pursuing
discovery and opposing defendants’ summary judgment motions. After
summarizing the discovery that had been provided and the extension accorded
to plaintiff, the court found no basis to reconsider the denial of plaintiff's
requests to compel more discovery or to extend the time to conduct discovery.
In making that ruling, the trial court rejected plaintiff's arguments about
spoliation of evidence. Instead, the court affirmed its finding that defendants
had met their discovery obligations.
Turning to the summary judgment motions, the court pointed out that
plaintiff's opposition was replete with factual assertions that failed to cite to the
record. Instead, plaintiff had filed a large volume of papers, but did not point
out where relevant facts could be found in those papers.
A-4179-18T3 11 The trial court then conducted a comprehensive analysis of plaintiff's
causes of actions. Addressing plaintiff's CEPA claims, the court found no
evidence establishing a causal link between plaintiff's alleged whistleblower
activities – that is, the radio tower incident and the student-harassment
complaints – and plaintiff's loss of her chair position.
On plaintiff's LAD claims, the court found that plaintiff failed to present
any evidence of direct gender discrimination. The court then found that MC
College had put forward a legitimate, non-discriminatory reason for not
renewing plaintiff as chair. Thereafter, the court found that plaintiff had failed
to submit evidence that those reasons were pretextual. The trial court also
rejected plaintiff's LAD-based harassment claims because plaintiff's counsel
failed to cite to the record to establish factual support showing a hostile work
environment. The court ruled that plaintiff's LAD-based retaliation claim was
barred by the waiver provision in CEPA.
Turning to the tort and unjust enrichment claims, the trial court first found
that plaintiff had provided sufficient notice under the Tort Claims Act when her
counsel sent a letter to MC College on January 15, 2015. The trial court then
conducted a thorough analysis of each of the elements of plaintiff's tort claims
and claims of unjust enrichment. Ultimately, the trial court found that plaintiff
A-4179-18T3 12 had not submitted evidence to support certain elements of each of those causes
of action. Accordingly, the court dismissed those claims.
Plaintiff moved for reconsideration of the April 12, 2019 orders. After
affording all counsel the opportunity to expand on the arguments in their papers,
the trial court denied plaintiff's motion for reconsideration. The court explained
the reasons for its decision on the record on May 24, 2019 and issued a
memorializing order that same day.
II.
Plaintiff now appeals from eight orders: (1) the January 28, 2019 order
granting in part and denying in part plaintiff's motion to compel discovery; (2)
the February 15, 2019 order denying plaintiff's motion to compel more discovery
and extend discovery; (3) the April 12, 2019 order denying plaintiff's motion for
reconsideration of the February 15, 2019 order concerning discovery; (4) to (7)
the four April 12, 2019 orders granting summary judgment to each defendant;
and (8) the May 24, 2019 order denying plaintiff's motion for reconsideration of
the April 12, 2019 orders.
On appeal, plaintiff makes three broad-based arguments, with numerous
sub-arguments. She contends that the trial court erred in (1) not compelling
further discovery from defendants; (2) closing discovery; and (3) granting
A-4179-18T3 13 summary judgment to defendants when there were disputed issues of material
fact. We reject plaintiff's arguments concerning the orders related to discovery.
We also affirm in part and reverse in part the summary judgment orders.
A. The Discovery Orders
We review discovery orders for abuses of discretion. Estate of Lagano v.
Bergen Cty. Prosecutor's Office, 454 N.J. Super. 59, 80 (App. Div. 2018).
Accordingly, we will "sustain[] the trial court's ruling 'unless it can be shown
that the trial court palpably abused its discretion, that is, that its findings was so
wide of the mark that a manifest denial of justice resulted.'" State v. Lykes, 192
N.J. 519, 534 (2007) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)).
Here, we discern no abuse of discretion. Plaintiff filed her complaint in
December 2015. Discovery commenced in early 2016. The court established
the first end date of discovery in April 2017. That end date was then extended
several times until the final close of discovery was set as February 15, 2019.
Accordingly, plaintiff had over three years to conduct discovery. During that
time defendants responded to plaintiff’s discovery demands for documents and
all defendants were deposed.
More significantly, plaintiff has not shown that any material information
was not produced by defendants. Plaintiff claims she requested certain
A-4179-18T3 14 documents from defendants that were not produced, but that contention is not
supported by the record. The trial court gave plaintiff several opportuni ties to
reopen and compel more discovery. Indeed, the trial court vacated the first order
granting summary judgment to defendants and gave plaintiff the opportunity to
file a motion to reopen discovery. Plaintiff did not avail herself of that
opportunity.
Nevertheless, when defendants refiled their motions for summary
judgment, the court again gave plaintiff an opportunity to seek more discovery.
In October 2018, plaintiff's counsel sent defendants' counsel a letter identifying
numerous documents plaintiff was seeking. Defendants responded, and plaintiff
moved to compel more. The court reviewed plaintiff's motion and, on January
28, 2019, entered an order granting in part and denying in part plaintiff's motion
to compel additional discovery. Significantly, the court directed defendants to
file certifications identifying what documents had been produced and explaining
whether other documents sought did or did not exist. Defendants filed such
certifications, the court reviewed them, and found that defendants had fully
complied with their discovery obligations. Accordingly, on February 15, 2019,
the court denied plaintiff's motion to compel further discovery and closed
discovery.
A-4179-18T3 15 In short, plaintiff has failed to identify any material discovery not
produced by defendants. We therefore affirm the orders of January 28, 2019
and February 15, 2019. Because there was no showing of an abuse of discretion,
there was also no showing of a basis for reconsideration concerning the
discovery orders. Consequently, we also affirm the April 12, 2019 order and
the portion of the May 24, 2019 order that denied plaintiff's motions for
reconsideration of the discovery orders.
B. The Summary Judgment Orders
We review a grant of summary judgment using the same standard that
governs the motion court's decision. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
Summary judgment will be granted when "the competent evidential materials
submitted by the parties," viewed in the light most favorable to the non-moving
party, show that there are no "genuine issues of material fact" and that "the
moving party is entitled to summary judgment as a matter of law." Grande v.
Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217 N.J. at 38);
accord R. 4:46-2(c). "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-
A-4179-18T3 16 moving party, would require submission of the issue to the trier of fact.'" Ibid.
(quoting Bhagat, 217 N.J. at 38). We owe no special deference to the motion
court's legal analysis or its interpretation of a statute. RSI Bank, 234 N.J. at
472; Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014).
Initially, we address plaintiff's counsel's failure to cite to the record. The
trial court correctly noted that plaintiff's counsel had failed to provide specific
cites to the record when contending that there were material issues of disputed
fact. Given that failure, the trial court could not locate and examine the actual
testimony or documents that plaintiff relied on in contending that there were
material factual disputes precluding summary judgment in favor of defendants.
In the papers filed before us, plaintiff's counsel continued his practice of
making factual assertions without citations to the record. Nevertheless, there
were points where plaintiff's counsel did cite to the record, and we have
undertaken an independent review of the record. That review reveals that many
of the claims made by plaintiff's counsel are overstated, misstated, or inaccurate.
There are, however, certain material issues of disputed fact that preclude
summary judgment in favor of two of the defendants (MC College and Edwards)
on plaintiff's claims under CEPA and LAD gender discrimination and
harassment. Under these circumstances, we will not visit the fault of plaintiff's
A-4179-18T3 17 counsel on plaintiff herself. Instead, we will analyze plaintiff's claims and
identify which claims involve disputed issues of material fact precluding
summary judgment.
The trial court granted summary judgment to all defendants, dismissing
all nine causes of action asserted by plaintiff. We will analyze plaintiff's claims
in three categories: (1) Plaintiff's CEPA claims; (2) her LAD claims; and (3)
her tort and unjust enrichment claims.
1. Plaintiff's CEPA Claims
CEPA was enacted "to protect and encourage employees to report illegal
or unethical workplace activities and to discourage public and private sector
employers from engaging in such conduct." Sauter v. Colts Neck Volunteer Fire
Co. No. 2, 451 N.J. Super. 581, 588 (App. Div. 2017) (quoting Mehlman v.
Mobil Oil Corp., 153 N.J. 163, 179 (1998)). "The statute 'seeks to overcome the
victimization of employees and to protect those who are especially vulnerable
in the workplace from the improper or unlawful exercise of authority by
employers.'" Ibid. (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138
N.J. 405, 418 (1994)).
CEPA "prohibit[s] an employer from taking retaliatory action . . . against
an employee who discloses, threatens to disclose, or refuses to participate in an
A-4179-18T3 18 activity of the employer 'that the employee reasonably believes is in violation of
a law, or a rule or regulation promulgated pursuant to law.'" Id. at 587 (first
quoting N.J.S.A. 34:19-2, 19-3; and then quoting Barratt v. Cushman &
Wakefield of N.J., Inc., 144 N.J. 120, 127 (1996)). A plaintiff alleging unlawful
retaliation under CEPA must prove that
(1) she reasonably believed that her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against her; and (4) a causal connection exists between the whistle- blowing activity and the adverse employment action.
[Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 556 (2013) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)).]
Plaintiff claims two categories of whistleblowing activity: (1) her
objection to the discipline of Ross concerning the radio tower incident as a
violation of his union contract; and (2) MC College's failure to follow up on her
reports of student complaints of sexual and gender harassment. She asserts that
these whistleblowing activities caused her to lose her position as chair of her
department. Her claim based on the discipline of Ross fails the first prong of
CEPA. In contrast, her claims based on the student complaints satisfy a prima
facie CEPA claim and involve material issues of disputed facts.
A-4179-18T3 19 a. The Discipline of Ross
CEPA requires an employee to establish that she reasonably believed that
her employer's conduct was violating either a law, rule, or regulation
promulgated pursuant to law, or a clear mandate of public policy. Dzwonar, 177
N.J. at 462. A plaintiff is not required "to show that a law, rule, regulation or
clear mandate of public policy actually would be violated if all the facts he or
she alleges are true. Instead, a plaintiff must set forth facts that would support
an objectively reasonable belief that a violation has occurred." Id. at 464.
Whether the employee has identified a law or clear mandate of public policy is
an issue of law for the court. Ibid.; see also Mehlman, 153 N.J. at 187.
Plaintiff contends that she satisfied the first prong of CEPA regarding the
radio tower incident because she believed issuing a written disciplinary letter to
Ross was a violation of his union contract. Even if the letter issued to Ross was
a violation of his union contract, issuing such a letter was not an objectiv ely
reasonable basis for believing that any defendant violated a law, rule, regulation,
or clear mandate of public policy. Instead, at best, plaintiff asserted that Ross's
union contract was violated. Under the circumstances as alleged by plaintiff,
pointing out such a violation of a union contract does not constitute
whistleblower activity protected by CEPA. See Dzwonar, 177 N.J. at 469
A-4179-18T3 20 (holding that the violation of a contract between a union and its members does
not constitute a violation of law, rule, or regulation protected by CEPA).
Moreover, plaintiff's allegations concerning the discipline of Ross do not
constitute a violation of a clear mandate of public policy. See ibid. Accordingly,
we affirm the summary judgment orders to the extent that they dismissed
plaintiff's CEPA claim based on the radio tower incident and the discipline of
Ross.
b. The Student-Harassment Complaints
We reach a different conclusion concerning plaintiff's allegations that she
reported female student complaints of sexual and gender harassment that were
not appropriately addressed by MC College.
First, it is objectively reasonable for plaintiff to believe that the failure to
address such complaints was a violation of law, regulation, or clear mandate of
public policy. See Title IX of the Education Amendments Act of 1972, 20
U.S.C. §1681 (requiring colleges to adopt and publish grievance procedures for
students to file complaints of sexual and gender harassment and to respond
promptly and effectively to said complaints); see, e.g., Simpson v. Univ. of
Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007); Williams v. Bd. of Regents of
Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir. 2007).
A-4179-18T3 21 Second, plaintiff testified that she personally made some of the reports of
the student complaints and that she assisted Amanda Lyons in compiling and
reporting other student complaints. Defendants dispute that plaintiff engaged in
such whistleblowing activity. That disagreement shows that there are material
factual disputes precluding summary judgment.
Third, plaintiff asserts that adverse employment action was taken against
her when she was removed from her position of department chair. Fourth, she
contends that there was a causal connection between her whistleblowing
activities and her removal as chair. Again, defendants dispute the causal
connection. They contend that some of the student complaints were made after
plaintiff was removed as chair. There are, however, sufficient facts creating
material factual disputes on the timing issue. In that regard, plaintiff testified
that she reported a student complaint to Edwards in April 2014, and he told her
to bury it. While Edwards disputes that allegation, that is another issue that
needs to be resolved by a factfinder.
In summary, we reverse the portion of the April 12, 2019 orders that
granted summary judgment to MC College and Edwards on plaintiff's CEPA
claims based on the failure to appropriately respond to plaintiff's reports of
student-harassment complaints. We affirm the orders to the extent that they
A-4179-18T3 22 dismissed such claims against LaPerla-Morales and DeAngelo because there are
no facts in the record that support that they were informed of plaintiff's reports
or that they did not appropriately respond to the complaints.
2. Plaintiff's LAD Claims
LAD is remedial legislation designed to root out "the cancer of
discrimination." Battaglia, 214 N.J. at 546 (quoting Fuchilla v. Layman, 109
N.J. 319, 334 (1988)). The Act prohibits unlawful employment practices and
discrimination in the form of harassment "based on race, religion, sex , or other
protected status, that creates a hostile work environment." Cutler v. Dorn, 196
N.J. 419, 430 (2008) (citing Lehmann v. Toys R Us, Inc., 132 N.J. 587, 601
(1993)); see also N.J.S.A. 10:5-12(a). LAD also prohibits retaliation against an
employee for opposing any act or practice that violates LAD. Dunkley v. S.
Coraluzzo Petroleum Transporters, 437 N.J. Super. 366, 375 (App. Div. 2014);
N.J.S.A. 10:5-12(d).
Plaintiff makes three claims under LAD. She contends she was subject to
(1) gender discrimination, (2) harassment based on her gender, and (3) unlawful
retaliation. Because her allegations of gender discrimination and harassment
overlap, we will analyze them together.
A-4179-18T3 23 a. Gender Discrimination and Harassment
To establish a prima facie showing of gender discrimination, plaintiff
must present evidence that she "(1) is a member of a designated protected class;
(2) who was qualified for and performing the essential functions of the job; but
(3) suffered termination or other adverse employment action; and (4) others not
in the protected class did not suffer similar adverse employment actions."
Schiavo v. Marina Distrib. Dev. Co., LLC, 442 N.J. Super. 346, 367 (App. Div.
2015) (citing Victor v. State, 203 N.J. 383, 409 (2010)).
To state a hostile work environment claim under LAD, plaintiff must show
"the complained-of conduct (1) would not have occurred but for the employee's
protected status, and was (2) severe or persuasive 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) (citing Lehmann, 132 N.J.
at 603-04). The court must consider the totality of the circumstances, including
"the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance."
Green v. Jersey City Bd. of Educ., 177 N.J. 434, 450 (2003).
A-4179-18T3 24 Plaintiff asserts that she was subject to gender-based discrimination and
harassment by Edwards. She claims that Edwards set up meetings with her, but
did not hold the meetings; failed to tell her about other meetings until just before
their initiation so she was unprepared; set and then changed his expectations;
stopped regularly communicating with plaintiff and ignored reports from her ;
and engaged in "repeated inflammatory and defamatory rhetoric to and about
plaintiff and her performance." Plaintiff also contends that Edwards threatened,
bullied, and intimidated her because of her gender. Plaintiff goes on to assert
that she reported Edwards’s inappropriate conduct to numerous administrators
at MC College, but the college failed to investigate the complaints.
None of plaintiff's complaints constitute direct evidence of discrimination.
See Bergen Commercial Bank v. Sisler, 157 N.J. 188, 208 (1999). Instead,
plaintiff's allegations constitute indirect evidence of gender disc rimination.
When reviewing LAD claims based on indirect evidence, we use the burden-
shifting framework established in McDonald Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973), and adopted by our Supreme Court in Battaglia. Henry v.
N.J. Dep’t of Human Servs., 204 N.J. 320, 331 (2010). Under that framework,
(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate nondiscriminatory reason for its decision;
A-4179-18T3 25 and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application.
[Ibid. (quoting Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988)).]
Viewed in the light most favorable to plaintiff, her contentions concerning
gender discrimination and harassment go beyond losing her position as chair of
the VPMA Department. In that regard, she alleges that she felt bullied,
humiliated, and demoralized by Edwards's conduct towards her.
In response, MC College and Edwards dispute plaintiff's allegations.
They also argue that her principal allegation of adverse action – the loss of the
chair position – was based on legitimate non-discriminatory reasons. While
many of plaintiff's contentions are vague, they are sufficient to survive a motion
for summary judgment because they create disputed issues of material fact as to
whether Edwards engaged in gender-based discrimination and harassment and
whether the college failed to appropriately respond.
Accordingly, we reverse the portions of the April 12, 2019 orders that
dismissed plaintiff's LAD claims based on gender discrimination and
harassment against MC College and Edwards. Because there is no evidence
presented by plaintiff that LaPerla-Morales and DeAngelo were aware of and
A-4179-18T3 26 failed to respond to the alleged discrimination and harassment by Edwards, we
affirm the orders that granted summary judgment to them.
b. The LAD Retaliation Claim
Plaintiff's claims of retaliation under LAD are barred by the waiver
provision of CEPA. When a plaintiff brings an action under CEPA, that party
waives the right to remedies available under other laws. N.J.S.A. 34:19-8.
Accordingly, the CEPA waiver provision applies to preclude substantially
related claims of retaliation. Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81,
103 (2008) (explaining that in enacting CEPA, the Legislature intended for it to
contain a "statutory provision that deems the filing of a CEPA complaint to b e
an election of remedies").
Plaintiff's claims of retaliation under LAD are based on the same facts as
her claim of retaliation under CEPA. While plaintiff disputes that relationship,
she cites no evidence that distinguishes her CEPA retaliation claim from her
LAD retaliation claim. Accordingly, summary judgment dismissing plaintiff’s
LAD-based retaliation claim was appropriately granted to defendants.
3. Plaintiff's Tort Claims and Claim of Unjust Enrichment
Plaintiff asserted four tort claims and a claim of unjust enrichment. Those
claims fail as a matter of law for several reasons.
A-4179-18T3 27 First, plaintiff failed to serve a timely notice of her tort claims against the
individual defendants as required by the Tort Claims Act. N.J.S.A. 59:8-8.1 The
Act requires that a notice of claim be filed within ninety days of the accrual of
the claim. Ibid. A claimant who fails to file notice within ninety days may, in
the discretion of the trial court, be permitted to file such notice within one year ,
provided that the public entity or public employees have not been substantially
prejudiced. N.J.S.A. 59:8-9.
Plaintiff claims that she substantially complied with the tort claim notice
requirement when her counsel sent McCormick a letter on January 15, 2015.
The trial court accepted that argument. We do not. The January 15, 2015 letter
was sent to McCormick as vice president of MC College. While it might have
been noticed to the college, the letter did not identify the individual defendants,
nor did it set forth notice that they were subject to tort claims. Without
individual actors, plaintiff's tort claims against MC College fail because the
college can only be vicariously liable. See N.J.S.A. 59:2–2a (establishing public
1 This first point is directed only to plaintiff's tort claims and does not apply to her unjust enrichment claim. See Pub. Advocate v. Belmar Bor., 233 N.J. Super. 437 (Law Div. 1989). We address the unjust enrichment claim in the second point. A-4179-18T3 28 entity liability based on acts of its employees pursuant to principles of
respondeat superior).
Second, each of plaintiff's tort claims and claim of unjust enrichment lack
proof of necessary elements of such causes of action. In that regard, we agree
with the trial court’s analysis in dismissing those claims as set forth in the
written opinion issued on April 18, 2019.
a. Defamation Claim
"[A] statement is defamatory if it is false, communicated to a third person,
and tends to lower the subject's reputation in the estimation of the community
or to deter third persons from associating with him [or her]." W.J.A. v. D.A.,
210 N.J. 229, 238 (2012) (first alteration in original) (quoting Lynch v. N.J.
Educ. Ass'n, 161 N.J. 152, 164-65 (1999)). "To determine whether a statement
is defamatory, a court looks 'to the fair and natural meaning [to be given to the
statement] by reasonable persons of ordinary intelligence.'" G.D. v. Kenny, 205
N.J. 275, 293 (2011) (alteration in original) (quoting Romaine v. Kallinger, 109
N.J. 282, 290 (1988)).
The trial court found that plaintiff could not demonstrate a prima facie
case of defamation because plaintiff failed to cite to any specific comment made
by Edwards or any evidence in the record showing that Edwards made a false
A-4179-18T3 29 statement to a third party that injured plaintiff by affecting her reputation. We
agree with the trial court and, therefore, affirm the trial court’s dismissal of
plaintiff’s defamation claim.
b. Tortious Interference
A claim of tortious interference with contractual relations requires
plaintiff to demonstrate: "(1) actual interference with a contract; (2) that the
interference was inflicted intentionally by a defendant who is not a party to the
contract; (3) that the interference was without justification; and (4) that the
interference caused damage." Dello Russo v. Nagel, 358 N.J. Super. 254, 268
(App. Div. 2003) (citing 214 Corp. v. Casino Reinvestment Dev. Auth., 280 N.J.
Super. 624, 628 (Law Div. 1994)). A claim must be based on facts showing that
the interference was done intentionally and with malice. Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751 (1989). "For purposes of
this tort, '[t]he term malice is not used in the literal sense requiring ill will toward
the plaintiff,'" but rather meaning “that the harm was inflicted intentionally and
without justification or excuse.” Ibid. (alteration in original) (citations omitted).
The trial court found that plaintiff failed to demonstrate that defendants
intentionally interfered with plaintiff’s contract without justification. We agree.
A-4179-18T3 30 c. Unjust Enrichment
To establish unjust enrichment, the plaintiff must show (1) that she
expected remuneration from defendant at the time she performed or conferred a
benefit on defendant; and (2) that retention of that benefit without payment
would be unjust. Woodlands Cmty. Ass'n, Inc. v. Mitchell, 450 N.J. Super. 310,
317 (App. Div. 2017) (citing VRG Corp. v. GKN Realty Corp., 135 N.J. 539,
554 (1994)).
Here, plaintiff’s claim fails on the second prong; plaintiff fails to show
that defendants were unjustly enriched. The trial court correctly found that
plaintiff failed to identify any work done for defendants that entitled her to
compensation beyond her ongoing payment as an MC College employee. Any
work plaintiff performed was in conjunction with her employment.
d. Intentional Infliction of Emotional Distress
To prove intentional infliction of emotional distress, a plaintiff must
show:
(1) defendant acted intentionally; (2) defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community;" (3) defendant's actions proximately caused him [or her] emotional distress; and (4) the emotional distress was "so severe
A-4179-18T3 31 that no reasonable [person] could be expected to endure it."
[Segal v. Lynch, 413 N.J. Super. 171, 191 (App. Div. 2010) (second alteration in original) (quoting Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988)).]
We have described the second required element "as an 'elevated threshold'
that is satisfied only in extreme cases." Ingraham v. Ortho-McNeil Pharm., 422
N.J. Super. 12, 21 (App. Div. 2011) (quoting Griffin v. Tops Appliance City,
Inc., 337 N.J. Super. 15, 23 (App. Div. 2001)). Defendants’ alleged conduct,
even if accepted as true, does not establish the outrageousness required for an
intentional infliction of emotional distress claim.
e. Negligent Infliction of Emotional Distress
Plaintiff includes a claim for negligent infliction of emotional distress in
the headings of her brief but has provided no argument addressing its merits. An
argument not presented in a party's brief is deemed waived. Sklodowsky v.
Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); see also N.J. Dep't of Env’t
Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015) (a party
waived issue on appeal that it raised "[i]n a single sentence in its brief," without
any legal argument).
A-4179-18T3 32 III.
In summary, we affirm the orders concerning discovery and denials of
reconsideration. Accordingly, we affirm the orders issued on January 28, 2019,
February 15, 2019, and May 24, 2019. We also affirm the April 12, 2019 orders
granting summary judgment to defendants LaPerla-Morales and DeAngelo. In
addition, we affirm the portions of the April 12, 2019 orders that dismiss with
prejudice plaintiff's claims against MC College and Edwards for LAD-based
retaliation, torts, and unjust enrichment. We reverse and remand the portions of
the April 12, 2019 orders that dismissed the claims against MC College and
Edwards based on CEPA and gender discrimination and harassment under LAD.
We remand those three claims as modified in this opinion.
Affirmed in part and reversed in part. We do not retain jurisdiction.
A-4179-18T3 33