NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3691-14T3
NICOLE PRAGER, APPROVED FOR PUBLICATION Plaintiff-Appellant, August 22, 2016 v. APPELLATE DIVISION JOYCE HONDA, INC.,
Defendant-Respondent. ____________________________
Submitted May 23, 2016 – Decided August 22, 2016
Before Judges Sabatino, Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L- 2112-12.
Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross, LLC, attorneys for appellant (Colin M. Page and John P. Harrington, on the brief).
Weiler & Brandman, attorneys for respondent (Michael F. Brandman and Francine M. Chillemi, on the brief).
Smith Mullin, PC, attorneys for amicus curiae National Employment Lawyers Association of New Jersey, Inc. (James E. Burden, on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D. Plaintiff Nicole Prager appeals from an involuntary
dismissal at trial at the close of her case pursuant to Rule
4:37-2(b), dismissing claims of retaliation and constructive
discharge by her employer, defendant Joyce Honda, Inc. Although
we disagree with the trial court's stated reasons for entry of
the order, we affirm because the proofs were insufficient to
sustain a judgment in plaintiff's favor.
Viewed most favorably to her, plaintiff adduced the
following facts at trial. Plaintiff was twenty years old and
worked as a receptionist for Joyce Honda in Denville. She had
been there eleven months when a customer of the dealership
leaned over the counter while she was on the phone and tugged at
the sleeve of her off-the-shoulder shirt, exposing her bra.
The matter was quickly referred to the service manager, who
asked whether she wished to press charges. When plaintiff said
she wasn't sure, the service manager told her she had fifteen
minutes to decide and sent her back to her desk. When the
service manager returned fifteen minutes later, plaintiff told
him she did not know what to do. The two then met with the
dealership's general manager.
By the time that meeting took place, managers had already
reviewed surveillance video, which caught the incident on tape.
The meeting began with a discussion between the general manager
2 A-3691-14T3 and the service manager as to how many cars the customer bought
and had serviced at the dealership. The man was a valued
customer, having purchased about twenty cars over the years. He
came into the dealership about twice a month to have one of his
cars serviced. Plaintiff testified the general manager told her
she had the right to press charges, but it would be unfortunate
to lose such a valued customer. The general manager asked
whether she would prefer that he call the customer to reprimand
him. The meeting "left off along the lines that [the general
manager] would contact [the customer] about . . . bringing him
in to reprimand him and tell him he can't do things like that."
Plaintiff testified she left the meeting feeling she "was
allowed to make a complaint" but that "they'd be disappointed if
I made that complaint."
Later that evening, plaintiff sent a text message to the
service manager asking whether the general manager had called
the customer, "[b]ecause I'm nervous he'll hate me whenever he
comes in." The general manager had in fact called the customer,
who had not returned his call.
Six days later, plaintiff sent an email to the vice
president of the dealership, the general manager's boss and the
son-in-law of the owner, with whom she enjoyed "an extremely
friendly relationship." Plaintiff testified she sent the email
3 A-3691-14T3 because she "felt discouraged by [the general manager] and after
the relationship I had with [the vice president], I thought I
could go to him." The email began with plaintiff describing the
incident and expressing her "total shock and disbelief after
such random harass[ment] by one of our customers." It continued
as follows:
Minutes later, I met with [three managers]. They discussed what had happened to me with [the customer] and proceeded to show me the incident which was caught by the security camera, they downloaded a copy of the clip. [The service manager] told me I had 15 minutes to press charges. I truly didn't know what to do, I felt embarrassed and humiliated and pressured to make up my mind immediately. I returned to my desk and 15 minutes later [the service manager] asked me if I made a decision, I told him I was unsure and that most of the employees were recommending I did, but I felt scared and very uncomfortable with the whole situation. At that point we met with [the general manager] and he asked me if I wanted an apology from [the customer], I responded no. The last thing I wanted [was] to see that man again. I was also made clearly aware during the meeting that [the customer] was a good client who owns "five" Hondas and spends a lot of money with the dealership and it will be unfortunate to loose [sic] his business.
[Vice president,] I was always very happy to work with Joyce Honda and all the employees. You have been a wonderful boss to work with and have shown me your support and friendship since I started working with your company. As you know a couple of days ago we have [sic] discussed the possibility of me getting ahead and working on Saturdays in
4 A-3691-14T3 the sales department. You were not only helpful but very encouraging and I truly appreciate this opportunity. I have always shown excellent customer service and would love to grow professionally in your firm. It was demoralizing to have to experience this type of behavior and sexual harassment from one of our customers. Although initially my reaction was of fear and discomfort, now as days are passing by I feel angry, hurt and violated. I sincerely believe [the customer] should not be allowed near me, I wonder if he will assault me again or choose another female co-worker for his disgusting behavior. I am reconsidering my early decision and I will press charges against [the customer]. [I]t will be wrong on my part to condone his actions. I would like to discuss this matter with you personally so it is handled the right way without causing any repercussions for Joyce Honda and at the same time taking care of this incident in a just and fair way. Please let me know when we can meet to discuss this matter.
The following morning, the vice president called her into a
meeting with the general manager. The service manager was also
present. Plaintiff testified she was surprised to see the
managers as she had "confided in [the vice president] the
negative feelings [she] had towards them in the prior meeting."
Plaintiff testified the general manager began by asking why
she had changed her mind about pressing charges. She replied by
saying that "other people were telling me that what happened to
me was wrong, that I should press charges." She testified the
general manager responded by "reprimanding" her, "saying I was
5 A-3691-14T3 acting like immature, I guess, just because I was a young girl,
I didn't know how to handle this, that it was inappropriate I
was discussing this with anybody." Plaintiff testified his
response made her angry, "because I was already upset with him
to begin with, and so him being there already was a bad taste
and so I — I got mad. I answered back that I was allowed to
speak to anybody I wanted." She testified that the general
manager "got upset" and left the meeting.
The general manager, who plaintiff called in her case at
trial, testified the vice president shared plaintiff's email
with him before the meeting. He admitted expressing to
plaintiff his view that she was handling the matter with a "lack
of maturity." He explained that, "she went and she told the
entire dealership about her personal business and it was coming
back to me in such a way as though the dealership really didn't
care about their employees, which is not true." He testified
plaintiff responded by saying "in a very enraged way" that "she
didn't have to tell [him] why she had changed her mind" and
"could talk to whomever she wanted about this." He agreed he
got upset and left the meeting.
The meeting ended with the vice president calling the
police to report the incident with the customer. The police
interviewed plaintiff at the dealership. The customer
6 A-3691-14T3 thereafter pled guilty to a petty disorderly offense of
offensive touching and paid a fine.
Plaintiff testified that after she filed her complaint
against the customer, the work environment changed. She felt
isolated and that people were avoiding her. About a week after
she filed the complaint, she received two written warnings for
leaving early without permission. The first warning related to
an incident that had occurred four days before she filed her
complaint against the customer. On that occasion, she switched
Saturday shifts with a co-worker whose great-uncle had passed
away. She testified she had explained to the co-worker that she
could not cover the entire shift because she had a tanning
appointment, and the two agreed the co-worker would come in when
plaintiff had to leave. Plaintiff testified the plan worked as
arranged and that she left the dealership that day without
incident.
When plaintiff was asked on cross-examination whether she
advised a supervisor that she would not be working the co-
worker's entire shift, plaintiff responded, saying "I figure I
must have but I was doing — I was doing Joyce Honda a favor that
day, that wasn't my assigned shift, so I didn't — I didn't think
I would have to stay until 5 o'clock if I was unable to."
7 A-3691-14T3 The dealership claimed plaintiff left without adequate
staff coverage after two different managers denied her
permission to leave. The general manager testified that after
being denied permission to leave, plaintiff called her co-worker
to cover the end of the shift. The co-worker arrived crying,
and the dealership sent her home and covered her position until
the end of the day. The general manager testified he directed
the service manager to give plaintiff a written warning shortly
after the incident, but the manager delayed doing so for reasons
unknown.
The other warning was for an incident in which plaintiff
allegedly again left early without authorization. Plaintiff
claimed the same co-worker came in a couple of hours early to
cover the end of plaintiff's shift. She claimed she advised the
assistant service manager, who said it was fine so long as
someone was at the desk. Plaintiff testified she had previously
left early and had her co-worker cover "many times," without
ever having previously been disciplined.
On cross-examination, plaintiff acknowledged time records
and text messages to her supervisor documenting twenty-seven
times in eleven months in which she had previously arrived late.
She also corrected her prior testimony that she had never been
late in the eleven months she worked for the dealership. She
8 A-3691-14T3 explained at trial that her "definition of late was not the
same" as the questioner's. "I believe because I did give [my
manager] a heads up and he okayed it, after that I just
considered I was on time being we discussed a new time I would
arrive."
Although plaintiff's first written warning was silent as to
the consequences for further infractions, the second stated
there could be time off without pay or termination should the
incident occur again. The general manager testified he directed
plaintiff be given the written warnings because:
Prior to this, [plaintiff] would send a battery of e-mails. I'm going to be late, it's this, it's that. She would always communicate, which, to me, shows a sign of respect. Even though it was inappropriate, we were able to deal with it. It didn't really disrupt our business. But it had reached a point with [plaintiff] where she was no longer talking to her bosses, she was just making her own decisions. And I felt that that was the basis for now writing – writing her up and giving her a warning.
Plaintiff refused to acknowledge receipt of either warning.
She admitted getting very upset during the meeting when she was
presented the warnings, raising her voice and directing
profanity at her supervisors. She testified the write-ups were
"false," were not intended to be constructive and were designed
as punishment. When asked on cross-examination what she thought
the warnings were "punishment for[,] if not for not working
9 A-3691-14T3 scheduled hours," plaintiff replied, "Because those weren't my
scheduled hours. I was helping out someone whose uncle just
died and no one was there to cover it, and I was getting written
up for not being on shifts that weren't my assigned shifts."
The following day, the vice president and general manager,
the service manager and the assistant service manager met with
plaintiff to discuss her behavior at the prior day's meeting.
The general manager testified the purpose of the meeting was to
talk about the way she had reacted and to learn "why she blew
up."
Plaintiff's counsel read into the record deposition
testimony of the assistant manager, who claimed the general
manager began the meeting "by talking to [plaintiff] and asking
if we can get passed this and clear the air. If she had a
problem, we would like to know what it is so that we can talk
about it and we can try to resolve the issues and move forward."
Plaintiff testified she responded by telling them the warnings
"were bullshit and that this happened a million times before and
that one happened ten days — ten days prior to me pressing
charges and I didn't understand how I got two write-ups in one
day after a year of no write-ups."
Plaintiff testified she told the vice president and
managers the warnings were retaliation for her pressing charges
10 A-3691-14T3 against a valued customer of the dealership and that her
"anxiety was high enough that I was throwing up before work."
The general manager responded by telling her that if "the job
makes her feel that physically ill, that it would be in her best
interest to most likely resign."
Plaintiff testified that after that meeting, she decided to
leave the dealership. When her counsel asked why, plaintiff
responded, "Because they decided at the end of the meeting that
if they erased the write-ups then they could pretend this didn't
happen, but at this point I didn't trust them anymore and I just
didn't — it wasn't Joyce Honda to me anymore."
After plaintiff rested, the trial judge granted defendant's
motion for involuntary dismissal, finding the practices
proscribed in N.J.S.A. 10:5-12 "involve conduct by the employer,
not conduct by a customer." In addition, the judge found that
because she filed a complaint in municipal court, rather than
filing a lawsuit or a complaint with the EEOC, plaintiff "has
not filed a complaint in any proceeding under [the Law Against
Discrimination (LAD)]."
The judge concluded by finding "[t]he case does not stand
as against the provision of 10:5-12d" because:
Plaintiff had a perfect right to complain, to file a police report against [the customer], who obviously acted inappropriately. The defendants had a
11 A-3691-14T3 perfect right to try to discourage her from doing that because it would be bad with business. There's nothing wrong in them doing that.
However, they made it perfectly clear to her, and she testified that she completely understood that if she wanted to file a complaint she could, and indeed, when she decided that she was ready to file a complaint it was they who called the police so that she could make her complaint in the convenience of the office and in the privacy of the room where [she] was interviewed by the police officer.
The court concluded that "as important as the anti-
discrimination law is . . . it simply was not violated in this
case" and dismissed the jury. This appeal followed.
We review a motion for involuntary dismissal at trial using
the same standard as the trial court. Smith v. Millville Rescue
Squad, ___ N.J. ___, ___ (2016) (slip op. at 36-37). Rule 4:37-
2(b) provides that after the plaintiff has rested, the defendant
may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.
Thus, "if, accepting as true all the evidence which supports the
position of the party defending against the motion and according
him the benefit of all inferences which can reasonably and
12 A-3691-14T3 legitimately be deduced therefrom, reasonable minds could
differ, the motion must be denied." Verdicchio v. Ricca, 179
N.J. 1, 30 (2004) (quotations omitted). Stated affirmatively,
the motion "should be granted where no rational juror could
conclude that the plaintiff marshaled sufficient evidence to
satisfy each prima facie element of a cause of action." Godfrey
v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008).
In order to prove a case for retaliation under the LAD,
N.J.S.A. 10:5-1 to -49, a plaintiff must demonstrate: (1) that
she "engaged in protected activity"; (2) the activity was "known
to the employer"; (3) she suffered "an adverse employment
decision"; and (4) there existed "a causal link between the
protected activity and the adverse employment action."
Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 547 (2013)
(quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252,
274 (App. Div. 1996)).
Our Supreme Court has held that a constructive discharge
under the LAD occurs when an employer knowingly permits
conditions of discrimination in employment "so intolerable that
a reasonable person would be forced to resign rather than
continue to endure it." Shepherd v. Hunterdon Developmental
Ctr., 174 N.J. 1, 28 (2002) (quoting Jones v. Aluminum Shapes,
Inc., 339 N.J. Super. 412, 428 (App. Div. 2001)). The Court has
13 A-3691-14T3 explained that "the standard envisions a sense of outrageous,
coercive and unconscionable requirements." Ibid. (quotation
omitted). The heightened standard demanded for proof of a
constructive discharge claim recognizes an employee's
"obligation to do what is necessary and reasonable in order to
remain employed rather than simply quit." Ibid. (internal
quotation marks omitted).
The trial court dismissed plaintiff's claims at the close
of her proofs because it found she could not make out the first
element of her prima facie case, that she had engaged in
protected activity. Specifically, the court found plaintiff's
complaint to the police to report the workplace incident, in
which a customer of her employer tugged down the sleeve of her
shirt revealing her bra, was not protected activity under the
LAD. Plaintiff and amicus, The National Employment Lawyers
Association of New Jersey, Inc., contend the court erred in that
finding. We agree.
The Supreme Court has on numerous occasions noted the LAD
"is, by its terms, see N.J.S.A. 10:5-3, remedial legislation
that was intended to be given a broad and liberal
interpretation." Quinlan v. Curtiss-Wright Corp., 204 N.J. 239,
259 (2010). Its aim is nothing less than the "eradication 'of
the cancer of discrimination.'" Fuchilla v. Layman, 109 N.J.
14 A-3691-14T3 319, 334 (quoting Jackson v. Concord Co., 54 N.J. 113, 124
(1969)), cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed.
2d 51 (1988).
Because N.J.S.A. 10:5-12d makes unlawful "reprisals against
any person because that person has opposed any practices or acts
forbidden under this act or because that person has filed a
complaint, testified or assisted in any proceeding under this
act," and given the "broad and pervasive" scope of the LAD,
Craig v. Suburban Cablevision, Inc., 274 N.J. Super. 303, 310
(App. Div. 1994), aff'd, 140 N.J. 623 (1995), and the case law
interpreting it, we conclude plaintiff's report to the police of
an offensive touching in her workplace by a customer of her
employer clearly constitutes protected activity under the Act.
See Worth v. Tyer, 276 F.3d 249, 265 (7th Cir. 2001) (holding a
plaintiff who reports sexual harassment, in the form of an
offensive touching, to the police clearly "opposes" it within
the meaning of 42 U.S.C. § 2000e-3(a)). "[T]he broad purposes
of the LAD would not be advanced were we to apply so narrow a
focus" as to exclude plaintiff from the protections of the Act
because she complained to the police instead of to the EEOC.
See Battaglia, supra, 214 N.J. at 548.
Resolution of that question of law, however, does not end
our inquiry. Although plaintiff contends the only issue on
15 A-3691-14T3 appeal is whether her report to the police constituted protected
activity, the question before us is actually whether the trial
court's order involuntarily dismissing her lawsuit was
appropriately entered. See Isko v. Planning Bd. of Livingston,
51 N.J. 162, 175 (1968) ("if the order of the lower tribunal is
valid, the fact that it was predicated upon an incorrect basis
will not stand in the way of its affirmance"), abrogated on
other grounds by Commercial Realty & Res. Corp. v. First Atl.
Props. Co., 122 N.J. 546 (1991); State v. Maples, 346 N.J.
Super. 408, 417 (App. Div. 2002) (an appeal is taken from the
court's order rather than reasons for the order).
Plaintiff pursued two claims at trial: retaliation and
constructive discharge.1 We have no hesitation in concluding
plaintiff's claim for constructive discharge was properly
1 Plaintiff and amicus urge us to address whether an employer can be liable under the LAD for maintaining a hostile environment based on the discriminatory acts of its customers. Because plaintiff specifically abandoned her claim of hostile environment discrimination at trial and proceeded only on claims of retaliation and constructive discharge, it is not appropriate for us to opine on that question or the trial court's views on whether an employer could lawfully attempt to dissuade an employee from filing a police complaint against a valued customer in favor of other efforts to end the conduct. See State v. Robinson, 200 N.J. 1, 19 (2009) ("Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves."); see also Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (same).
16 A-3691-14T3 dismissed. Plaintiff claimed after she pressed charges, she
felt isolated and that people were avoiding her, and she
received two written warnings, which she contended were "false"
and issued in retaliation for her pressing charges against a
valued customer of the dealership. Accepting that as true, no
reasonable juror could find that conduct "so intolerable that a
reasonable person would be forced to resign rather than continue
to endure it." Shepherd, supra, 174 N.J. at 28 (quotation
omitted). Her colleagues' coldness and the two attendance
warnings simply cannot suffice to prove a constructive discharge
under New Jersey law.2
2 Our conclusion is not altered by plaintiff's statement to management that her "anxiety was high enough that I was throwing up before work," and the general manager's response that if "the job makes her feel that physically ill, that it would be in her best interest to most likely resign." We do not address whether it was reasonable for plaintiff to become physically ill as a result of the customer's offensive touching. The issue is whether her reaction was an objectively reasonable response — not to the touching — but to the employer's retaliation in the form of her colleagues' coldness and the two warnings to her for attendance violations. Shepherd, supra, 174 N.J. at 25-29 (noting adoption of objective standard for hostile environment claims and that constructive discharge claim requires showing even more egregious conduct); see also Donelson v. DuPont Chambers Works, 206 N.J. 243, 262-63 (2011) (distinguishing between constructive discharge claim under the LAD and lost-wage damages claim under CEPA). Nor was it outrageous for the general manager to advise plaintiff that she should not come to work if doing so made her feel physically ill. To the contrary, it would be wrongful for an employer to force a sick employee to report for duty.
17 A-3691-14T3 There is, additionally, another reason for dismissal of
plaintiff's constructive discharge claim. Plaintiff testified
she decided to resign after the meeting with management the day
after she received the two written warnings. When her counsel
asked her at trial why she made that decision, she explained
that the dealership "decided at the end of the meeting that if
they erased the write-ups then they could pretend this didn't
happen, but at this point I didn't trust them anymore and I just
The clear import of that testimony is that the dealership,
which called the meeting to address plaintiff's concerns over
the warnings in an effort "to resolve the issues and move
forward," was willing to rescind the warnings and proceed as if
they had never been issued. Instead of accepting the
dealership's offer to rescind the warnings, plaintiff decided to
resign because she "didn't trust them anymore." Because
plaintiff had an "obligation to do what is necessary and
reasonable in order to remain employed rather than simply quit,"
ibid., which she clearly did not fulfill, her constructive
discharge claim was properly dismissed at trial.3
3 Plaintiff contends the trial judge erred in dismissing her case because another judge had denied defendant's prior motion for summary judgment on the basis that plaintiff's allegations could constitute a hostile work environment. We, of course, are not (continued)
18 A-3691-14T3 Although whether plaintiff established a prima facie case
of retaliation is a closer question, we conclude judgment
dismissing that claim was appropriate as well. Because we find
plaintiff's complaint to the police was conduct protected under
the LAD, of which the dealership was certainly aware, we are
satisfied plaintiff established the first two elements of her
prima facie case of retaliation. See Battaglia, supra, 214 N.J.
at 547.
We are also satisfied plaintiff put forth sufficient
evidence of a causal link between her police report and the
written warnings to establish the fourth element of her prima
facie case. The timing between the two events, specifically
that the alleged infraction giving rise to the first warning
preceded the police report but the warning was issued after, is
likely sufficiently suggestive of retaliatory motive in itself
to establish that element. See Young v. Hobart West Grp., 385
N.J. Super. 448, 467 (App. Div. 2005). In addition, plaintiff
(continued) bound by interpretative conclusions of the law by either judge. See Nicholas v. Mynster, 213 N.J. 463, 478 (2013). The prior ruling is, in any event, irrelevant because plaintiff did not pursue a hostile environment claim at trial. The claims dismissed were for retaliation and constructive discharge. Further, the Supreme Court in Shepherd made clear "a constructive discharge claim requires more egregious conduct than that sufficient for a hostile work environment claim." Ibid.
19 A-3691-14T3 produced evidence that the general manager had reprimanded her
about talking with her co-workers about the incident with the
customer. That evidence also supported a causal link between
the complaint and the written warnings.
The question is whether the two written warnings
constituted an adverse employment decision, thereby establishing
the third element of plaintiff's prima facie case. As the Court
explained in Roa v. Roa, 200 N.J. 555, 575 (2011), the scope of
actionable retaliatory conduct under the LAD is broader than the
employment-related acts prohibited in N.J.S.A. 10:5-12. In
considering "how harmful an act of retaliatory discrimination
must be" in order to be actionable under the LAD, the Court
adopted the Title VII standard established by the United States
Supreme Court in Burlington Northern & Santa Fe Railway v.
White, 548 U.S. 53, 61, 68, 126 S. Ct. 2405, 2411, 2415, 165 L.
Ed. 2d 345, 355, 359 (2006). Roa, supra, 200 N.J. at 575. The
test is whether "'a reasonable employee would have found the
challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.'" Ibid.
(quoting Burlington Northern, supra, 548 U.S. at 61, 68, 126 S.
Ct. at 2411, 2415, 165 L. Ed. 2d at 355, 359) (internal
quotations omitted).
20 A-3691-14T3 In elaborating on the standard, the United States Supreme
Court explained "[t]he anti[-]retaliation provision protects an
individual not from all retaliation, but from retaliation that
produces an injury or harm." Burlington Northern, supra, 548
U.S. at 67, 126 S. Ct. at 2414, 165 L. Ed. 2d at 359 (emphasis
added). Further, the Court explained the standard is couched
"in general terms because the significance of any given act of
retaliation will often depend upon the particular
circumstances." Id. at 69, 126 S. Ct. at 2415, 165 L. Ed. 2d at
360. The Court emphasized that "[c]ontext matters," because "an
act that would be immaterial in some situations is material in
others." Ibid. (quoting Washington v. Ill. Dep't of Revenue,
420 F.3d 658, 662 (7th Cir. 2005)). Accordingly, accepting that
the two written warnings constituted retaliation, the question
we must answer is whether they produced any "injury or harm" to
plaintiff under these circumstances, that is, whether they can
be considered materially adverse on the facts plaintiff adduced
at trial.
Applying that standard here, we conclude the two written
warnings the dealership provided to plaintiff are insufficient
to establish she suffered an adverse employment action under the
21 A-3691-14T3 LAD.4 To be clear, we accept that written warnings might, in
some circumstances, be materially adverse to an employee — in a
formal system of progressive discipline for instance. We simply
cannot find on the facts that these particular warnings posed
any harm to plaintiff at all.
First, plaintiff produced absolutely no proof of any
tangible injury or harm. Because she quit her job the day after
receiving the warnings, it is impossible to assess their
significance for her continued employment, even leaving aside
defendant's offer to rescind them and "pretend this didn't
happen." Accordingly, the focus is necessarily on the warnings
themselves.
Although plaintiff undoubtedly found the warnings highly
distressing, her subjective response to them is not legally
significant in assessing whether they were materially adverse.
Justice Breyer in Burlington Northern explained the Court chose
an objective standard in requiring a plaintiff to show that a
reasonable employee would have found the challenged action, here
the warnings, materially adverse, because "[a]n objective
4 Plaintiff also alleges she was shunned by co-workers after she decided to press charges against the customer. Such petty slights and lack of good manners on the part of co-workers are insufficient to establish an adverse employment action under the LAD. See Roa, supra, 200 N.J. at 575; Shepherd, supra, 174 N.J. at 25-26.
22 A-3691-14T3 standard is judicially administrable. It avoids the
uncertainties and unfair discrepancies that can plague a
judicial effort to determine a plaintiff's unusual subjective
feelings." 548 U.S. at 68-69, 126 S. Ct. at 2415, 165 L. Ed. 2d
at 360. Cf. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 612
(1993) ("An objective reasonableness standard [for judging
whether alleged sexual harassment was sufficiently severe or
pervasive to alter the conditions of employment] better focuses
the court's attention on the nature and legality of the conduct
rather than on the reaction of the individual plaintiff, which
is more relevant to damages.").
Only one of the warnings referenced repercussions to flow
from future infractions, and even that noted only the
possibility, not the promise, of time off without pay or
termination. Moreover, plaintiff testified that within twenty-
four hours of her receiving them, management was willing "to
erase[] the write-ups" and "pretend this didn't happen." Unlike
the defendant's cancellation of plaintiff's health insurance in
Roa, which caused plaintiff and his wife "'financial problems,
damaged their credit rating, subjected them to constant calls
from debt collectors, and caused them a tremendous amount of
stress and anxiety,'" 200 N.J. at 575, or Burlington Northern,
where the plaintiff suffered a more arduous job assignment and
23 A-3691-14T3 the financial effects of a thirty-seven-day suspension without
pay, even though the suspension was eventually reversed and the
plaintiff awarded back pay, 548 U.S. at 71-72, 126 S. Ct. at
2417, 165 L. Ed. 2d at 362, plaintiff can show no discernible
injury or harm flowing from these two written warnings.
Because plaintiff could not show she suffered an adverse
employment decision, she failed to establish the third element
of her prima facie case of retaliation. See Battaglia, supra,
214 N.J. at 547. Her claim was thus properly dismissed at the
end of her case under Rule 4:37-2(b).
Accordingly, because the proofs were insufficient to
sustain a judgment in plaintiff's favor on her claims of
retaliation and constructive discharge, we affirm the
involuntary dismissal of her complaint at trial, even though we
disagree with the trial court's stated reasons for entry of the
order.
Affirmed.
24 A-3691-14T3