Patricia Zilly v. Oceanfirst Bank

• Court: New Jersey Superior Court Appellate Division
• Decided: July 6, 2026
• Docket: A-2823-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2823-24

PATRICIA ZILLY,

Plaintiff-Appellant,

v.

OCEANFIRST BANK,

Defendant-Respondent,

and

CHRISTOPHER D. MAHER,

Defendant. _________________________

Submitted March 17, 2026 – Decided July 6, 2026

Before Judges Susswein and Augostini.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0519-23.

Piro Zinna Cifelli Paris & Genitempo LLC, attorneys for appellant (Alan Genitempo, on the briefs).

Jackson Lewis PC, attorneys for respondent (Carla D. Macaluso and Colleen S. Heckman, on the brief). PER CURIAM

Plaintiff Patricia Zilly appeals from the April 11, 2025 order granting

summary judgment to defendant OceanFirst Bank and dismissing plaintiff's

complaint in its entirety with prejudice. We affirm.

I.

We summarize the pertinent facts from the motion record. Plaintiff, a

longtime branch manager at defendant's Matawan branch, was terminated for

failure to follow the bank's Dual Control Security Procedures (DCSP). The

DCSP are security measures applicable to the bank's ATMs and vaults within

the branch, which require one person to have one-half of a combination and

another person to have the other half "to access the location with money." As

branch manager, plaintiff was:

responsible for maintaining the integrity of dual control within the branch and [was] specifically required to . . . verify that combinations are kept confidential; verify that dual control is observed whenever it is required; and verify that dual control logs are completed properly.

A-2823-24 2 It is undisputed that plaintiff was responsible for ensuring that the DCSP was

followed by all employees.

On June 2, 2021, plaintiff learned from another employee that the DCSP

at the Matawan branch had been compromised. According to plaintiff, upon

learning this news for "[t]he very first time," "she immediately reported it to her

supervisor, Tino Fontes." An investigation ensued.

Defendant's senior investigator, David Mowder, reviewed defendant's

security surveillance footage and applicable policies. It is undisputed that

Mowder's review of surveillance footage revealed that there were "obvious

violations of dual control" and that "he observed a violation of the dual control

policy on each day of [] sample footage he [reviewed]." Mowder also conducted

brief interviews with employees, including plaintiff. During the investigation,

an employee advised that she attempted to bring the issue to plaintiff's attention

previously. However, no employee confirmed that plaintiff knew of the DCSP

violations before June 2.

The investigation revealed that the DCSP violations "were egregious and

spanned over time." Mowder advised defendant "to terminate all [] employees

at the Matawan branch, including [p]laintiff." On June 22, defendant terminated

plaintiff and all employees at this branch. As the branch manager, plaintiff was

A-2823-24 3 terminated for "failing to manage and oversee the [DCSP] from the fall of 2020

to June 2021."

On February 21, 2023, plaintiff filed a complaint under the New Jersey

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, against defendant,

alleging she was wrongfully terminated. 1 Following the end of discovery,

defendant filed a motion for summary judgment. On March 28, 2025, oral

argument was held, and on April 11, the court rendered its decision granting

summary judgment in favor of defendant and dismissing plaintiff's complaint

with prejudice.2

On appeal, plaintiff contends the trial court erred in granting summary

judgment for two reasons: (1) it incorrectly relied upon inadmissible hearsay in

making its determination; and (2) plaintiff demonstrated that defendant's

proffered reasons for her termination were pretextual.

1 Defendant Christopher D. Maher filed a motion to dismiss, which was unopposed, and an order dismissing plaintiff's complaint against him was entered on June 12, 2023. 2 At the outset of the summary judgment proceeding, the court confirmed that counts two, four, five, seven, and eight of plaintiff's complaint were dismissed without objection from plaintiff. This appeal does not include these counts.

A-2823-24 4 II.

We review a trial judge's grant or denial of a motion for summary

judgment de novo, applying the same standard used by the trial court. Samolyk

v. Berthe, 251 N.J. 73, 78 (2022). Rule 4:46-2(c) provides that summary

judgment shall be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of law." We consider

"whether the competent evidential materials presented, when viewed in the light

most favorable to the non-moving party, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the non-moving

party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

"Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard mandates that

the opposing party do more than 'point[] to any fact in dispute' in order to defeat

summary judgment." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016)

(alterations in original) (first quoting R. 4:46-2(c); and then quoting Brill, 142

N.J. at 529). Arguments based on assumptions or speculation are insufficient to

A-2823-24 5 overcome summary judgment. Brill, 142 N.J. at 529; see also Dickson v. Cmty.

Bus Lines, Inc., 458 N.J. Super. 522, 533 (App. Div. 2019).

Rule 2:6-1(a)(1), in part, states that "[i]f the appeal is from a disposition

of a motion for summary judgment, the appendix shall also include a statement

of all items submitted to the court on the summary judgment motion and all such

items shall be included in the appendix." Furthermore, Rule 2:6-2(a)(1) requires

"every point . . . shall include in parentheses at the end of the point heading . . .

if the issue was not raised below a statement indicating that the issue was not

raised below."

We generally decline to consider issues that were not raised before the

trial court, unless an issue goes to the jurisdiction of the trial court or concerns

matters of substantial public interest. J.K. v. N.J. State Parole Bd., 247 N.J. 120,

138 n.6 (2021); State v. Jones, 232 N.J. 308, 320-21 (2018); State v. Lawless,

214 N.J. 594, 605 n.2 (2013); State v. Robinson, 200 N.J. 1, 20-22 (2009);

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973); Pressler &

Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2026).

The plain error rule applies to issues not raised before the trial court. R.

2:10-2. However, "[r]elief under the plain error rule, [Rule] 2:10-2, at least in

civil cases, is discretionary and 'should be sparingly employed.'" Baker v. Nat'l

A-2823-24 6 State Bank, 161 N.J. 220, 226 (1999) (quoting Ford v. Reichert, 23 N.J. 429,

435 (1957)).

A.

We apply these well-settled legal principles to plaintiff's contentions.

Plaintiff argues that the trial court improperly relied on inadmissible hearsay in

granting summary judgment. Specifically, plaintiff asserts the trial court erred

by relying on Mowder's hearsay statements of what the surveillance video

footage depicted in support of the conclusion that plaintiff failed to manage and

oversee the bank's operational controls. This contention, however, was not

raised before the trial court.

Plaintiff was afforded oral argument and a full and fair opportunity to

address her arguments but failed to raise this contention before the court.

Moreover, the hearsay issue raised for the first time on appeal does not go to the

jurisdiction of the trial court or concern a matter of substantial public interest.

Plaintiff also acknowledges the procedural deficiencies of failing to

include in her point heading that this issue was not raised before the trial court

as required by Rule 2:6-2(a)(1) and not including in her appendix defendant's

reply to plaintiff's response to defendant's statement of undisputed material facts

and defendant's response to plaintiff's counterstatement of material facts as

A-2823-24 7 required by Rule 2:6-1(a)(1). The missing items, however, were included in

defendant's appendix. However, "[o]ur rules do not perpetuate mere ritual.

Rather the purpose is to require a litigant to make known his position to the end

that the trial court may consciously rule upon it." State v. Abbott, 36 N.J. 63,

76 (1961).

Plaintiff urges us to consider this contention nonetheless because

"substantial justice requires" it to be heard considering the court's adjudication

of summary judgment in defendant's favor, thereby dismissing plaintiff's

complaint in its entirety. Not only did plaintiff not present this issue before the

trial court, but she also did not raise a hearsay objection during the summary

judgment proceeding. In failing to present or even raise this issue before the

trial court, plaintiff deprived defendant and the court of the opportunity to

develop the record and fully respond to this issue in the context of the summary

judgment motion. Moreover, plaintiff's failure to present this issue hampers our

review of it in the same manner.

In defendant's Statement of Undisputed Material Facts, in relevant part,

defendant stated:

22. Upon [] Mowder's review of the security footage, he confirmed that [DCSP] had been compromised. (Internal Investigation Report at p. 1, attached to the Speedy Cert. as Exhibit 10).

A-2823-24 8 23. Upon [] Mowder's review of security footage, he was able to determine there were obvious violations of [DCSP]. (Mowder Dep. Tr. at 76:4-9, Speedy Cert., Exhibit 9).

24. Upon [] Mowder's review of security surveillance video, he observed a violation of the [DCSP] on each day of the sample footage he pulled. (Mowder Dep. Tr. 55:18 to 56:2, Speedy Cert. denied,., Exhibit 9).

25. Upon [] Mowder's review of the security footage, he was able to determine that [DCSP] violations were egregious and spanned over time. (Mowder Dep. Tr. at 57:20-25, Speedy Cert., Exhibit 9).

In response, plaintiff stated:

22. Admitted.

23. Admitted.

24. Admitted.

25. Admitted only that [d]efendant's representation testified to the fact but dispute the veracity of the fact. See [p]laintiff's Counterstatement of Facts ¶¶ 11-14.

We agree with defendant that plaintiff neither challenged Mowder's

statements as inadmissible hearsay nor identified any specific evidence in the

record to dispute these facts and create a genuine issue of material fact. Thus,

these statements are admitted and undisputed and were therefore properly

A-2823-24 9 referenced by the trial court in assessing the merits of the summary judgment

motion.

We decline to consider this issue because it was not presented to the trial

court and preserved for appellate review. Moreover, plaintiff acknowledged

these facts, which she now seeks to disavow, and the court referenced them in

ruling upon the summary judgment motion.

Although we decline to address plaintiff's contention because it was not

raised before the trial court, we note that hearsay is defined as "a statement that:

(1) the declarant does not make while testifying at the current trial or hearing;

and (2) a party offers in evidence to prove the truth of the matter asserted in the

statement." N.J.R.E. 801(c). "[S]tatements that might otherwise be hearsay may

be admissible if they are not offered to prove the truth of the matter asserted."

El-Sioufi v. St. Peter's University Hospital, 382 N.J. Super. 145, 164 (App. Div.

2005) (citing N.J.R.E. 801 (c); and then citing State v. Long, 173 N.J. 138, 152

(2002)). In other words, statements not offered for the "truthfulness of their

contents, but only to show that they were in fact made and that the listener took

certain action as a result thereof," are not inadmissible hearsay. Ibid.

The Supreme Court has held "within the usual limits that govern the

admissibility of evidence as a whole, an investigative report concerning an

A-2823-24 10 employee is admissible as non-hearsay statements whenever the employer's

motivations are directly at issue." Carmona v. Resorts Int'l Hotel, 189 N.J. 354,

376 (2007). In this case, Mowder's statements of the contents of the surveillance

video footage pertain to defendant's motives for terminating plaintiff, and

whether defendant "acted reasonably in light of that information." El-Sioufi,

382 N.J. Super. at 165. Therefore, Mowder's statements in his investigative

report regarding his viewing of the surveillance footage are not hearsay.

III.

We turn next to plaintiff's contention that the trial court erred in granting

defendant summary judgment because plaintiff demonstrated defendant's

proffered reasons for termination were pretextual. Plaintiff's complaint alleges

age discrimination and retaliation in violation of the LAD.

A. Age Discrimination Claim

Plaintiff argues she has demonstrated genuine issues of material fact to

withstand summary judgment on her LAD age discrimination claim. Plaintiff

asserts the trial court did not take issue with her "ability to set forth a [prima

facie] case of age discrimination." Rather, she argues the court improperly

accepted defendant's reason for terminating her employment—i.e., failing to

manage and oversee employee compliance with the DCSP—and erred in not

A-2823-24 11 finding this reason pretextual. The record, however, does not support plaintiff's

contention.

The LAD's "overarching goal . . . is nothing less than the eradication 'of

the cancer of discrimination.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446

(2005) (internal citations omitted) (quoting Fuchilla v. Layman, 109 N.J. 319,

334 (1969)). The LAD prohibits unlawful discrimination "in all aspects of the

employment relationship," Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J.

Super. 346, 367 (App. Div. 2015) (quoting Alexander v. Seton Hall Univ., 204

N.J. 219, 227-28 (2010)), while acknowledging "the authority of employers to

manage their own businesses." Zive, 182 N.J. at 446 (citing Viscik v. Fowler

Equip. Co., 173 N.J. 1, 13 (2002)). "What makes an employer's personnel action

unlawful is the employer's intent." Ibid. (citing Marzano v. Computer Sci.

Corp., 91 F.3d 497, 507 (3d Cir. 1996)).

To establish a prima facie case of wrongful termination based on age

discrimination, a plaintiff must prove he or she was: (1) in a protected class; (2)

performing the job at a level that met the employer's legitimate expectations; (3)

nevertheless discharged; and (4) "replaced by a 'candidate sufficiently younger

to permit an inference of age discrimination.'" Young v. Hobart W. Grp., 385

A-2823-24 12 N.J. Super. 448, 458 (App. Div. 2005) (quoting Bergen Com. Bank v. Sisler,

157 N.J. 188, 210-13 (1999) (internal quotations and citations omitted)).

In analyzing such claims under the LAD, New Jersey adopted the "burden-

shifting methodology," Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 546

(2013), set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04

(1973). Under this analysis:

(1) plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) defendant must then show a legitimate nondiscriminatory reason for its decision; and (3) plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application.

[El-Sioufi, 382 N.J. Super. at 166 (quoting Dixon v. Rutgers, the State Univ. of N.J., 110 N.J. 432, 442 (1988) (citations omitted)).]

Giving plaintiff the benefit of all reasonable inferences, the trial court

found "a question of fact exist[ed] as to whether [p]laintiff [could] demonstrate

a prima facie case of discrimination that her termination was based upon her age

in violation of the LAD and [that] she falls within the protected class." However,

based on our de novo review and giving plaintiff the benefit of every reasonable

inference, we are satisfied that the record supports a finding that plaintiff made

a prima facie showing of age discrimination based on: a woman in her late fifties

A-2823-24 13 at the time of her discharge; sufficiently and without incident performed her job

as a branch manager for many years; was discharged on June 22, 2021; and

according to defendant's answer to the complaint, the manager who replaced

plaintiff was younger.

Defendant's "legitimate non-discriminatory reason" for plaintiff's

termination was her lack of oversight of DCSP operations. As the trial court

found, "[p]laintiff was specifically terminated for failing to manage and oversee

operational controls at the bank from the Fall of 2010 to June of 2021."

Plaintiff admitted that one of her primary responsibilities as manager was

to supervise the daily operational activities at the bank and to ensure that the

employees followed the DCSP as well as all bank policies and procedures.

Plaintiff admitted that she did not "look and see" if DCSP was being followed by

the employees but rather relied upon her staff to comply with these procedures.

Defendant's investigation included reviewing video surveillance footage

and conducting employee interviews. As a result of defendant's investigation,

all branch employees were terminated. Defendant determined the length of time

of the DCSP compromise was critical and weighed heavily in its determination

to terminate all branch employees. Plaintiff offered no competent, credible

A-2823-24 14 evidence to suggest that the decision to terminate her was a pretext to hide age

discrimination.

Plaintiff's only suggestion to refute defendant's reason for terminating

plaintiff was that in defendant's Westfield branch, "two younger employees who

intentionally and inaccurately signed off on proof sheets were not terminated,"

and that "two older employees involved were terminated." (emphasis omitted).

We agree with the trial court's characterization of plaintiff's statements as "self-

serving" and without support in the record. The record shows that the two

employees at the other branch who violated the DCSP were terminated.

Importantly, similar to plaintiff, the Westfield branch manager, who was younger

than plaintiff, was terminated as well for failing to "manage and oversee

operational control of [DCSP]." The trial court correctly found no genuine issue

of material fact demonstrating that defendant's reasons for terminating plaintiff

were not legitimate or were a pretext for age discrimination.

B. Retaliation

We next address plaintiff's claim that she was terminated in retaliation for

requesting accommodations for a "visibly disabled" employee. In her complaint,

plaintiff alleges that "[j]ust prior to [her] termination, she had put in multiple

requests and complaints to [d]efendant[] [] in an effort to obtain handicap

A-2823-24 15 accessibility and/or handicap seating in her branch." Plaintiff claimed defendant

denied these requests, and that defendant "used [the employee's disability] as one

of the main reasons for [p]laintiff's termination."

To establish a prima facie case of retaliation under the LAD, plaintiff must

show he or she was "(1) . . . engaged in a protected activity know to [] defendant;

(2) thereafter subjected to an adverse employment decision by [] defendant; and

(3) there was a causal link between the two." Romano v. Brown & Williamson

Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995). In this case, the

adverse employment action is plaintiff's termination. See Mancini v. Twp. of

Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002).

Although plaintiff claims she made "numerous requests to [d]efendant to

accommodate [the employee's] disability starting in the fall of 2020," the record

shows that plaintiff made three requests and the final request was made in the

fall of 2020. Plaintiff, however, was not terminated until June 2021. The lack

of temporal proximity weakens plaintiff's contention. "Where the timing alone

is not 'unusually suggestive,' [] plaintiff must set forth other evidence to establish

the causal link" between the adverse consequence and the protected activity.

Young, 385 N.J. Super. at 467.

A-2823-24 16 The only additional evidence plaintiff proffers is that the employee's

disability was mentioned in plaintiff's termination letter. Specifically, the letter

referenced plaintiff's failure to report the employee's fall in the branch parking

lot in the fall of 2020. We discern no causal connection, however, between

plaintiff's failure to report the employee's fall and her requests for

accommodations on behalf of this employee. The trial court correctly found that

plaintiff did not demonstrate that the decision to terminate plaintiff's employment

was done in retaliation for "assisting her employee, who [was] alleged to have a

disability as being obese and/or overweight."

In sum, we are satisfied based on our de novo review that plaintiff failed

to establish a prima facie showing of pretext as to age discrimination or

retaliation under the LAD; therefore, we discern no reason to disturb the trial

court's decision granting summary judgment in defendant's favor.

To the extent we have not addressed plaintiff's remaining contentions, it is

because they lack sufficient merit to be discussed in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

A-2823-24 17