NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5113-14T3
S.A.,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT OF EDUCATION,
Defendant-Respondent. _______________________________
Argued May 9, 2018 – Decided July 11, 2018
Before Judges Koblitz, Manahan, and Suter.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L- 1023-11.
Nina Rossi argued the cause for appellant (Law Offices of William J. Courtney, LLC, attorneys; Nina Rossi, on the brief).
Noreen P. Kemether, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Peter D. Wint, Assistant Attorney General, on the brief).
PER CURIAM Plaintiff S.A.1 appeals from the June 2, 2015 order dismissing
her second amended complaint against defendant New Jersey
Department of Education (DOE), following the jury's verdict in
favor of DOE. We affirm.
I
Plaintiff filed suit against DOE in 2011. Following
amendment, the complaint alleged violations of the New Jersey
Family Leave Act (FLA), N.J.S.A. 34:11B-1 to -16 (Count One); the
Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654 (Count
Two); the New Jersey Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14 (Count Three); the New Jersey Law Against
Discrimination (LAD)- perceived disability, N.J.S.A. 10:5-1 to -
49, (Count Four); and the public policy of the State of New Jersey
(Count Five). It also alleged retaliation under LAD (Count Six)
and retaliation under the FLA (Count Seven). Plaintiff claimed
she was retaliated against for her use of family medical leave.
She sought judgment for compensatory damages, lost wages,
emotional distress, punitive damages and attorney's fees.
Counts One (FLA), Two (FMLA) and Five (public policy) were
dismissed with prejudice in February 2015, by an order granting
1 We use initials for privacy purposes because part of the record is referenced as a confidential appendix.
2 A-5113-14T3 DOE summary judgment. Plaintiff does not appeal the order. 2 The
case was tried to a jury for sixteen days in April and May 2015,
on the remaining counts. On June 2, 2015, the jury returned a
verdict in favor of DOE. An order dismissing the case was entered
the same day.
Plaintiff is an educational program development specialist
(educational specialist) employed by DOE. Her mother, who lived
a distance away in western New York State, suffered a major stroke
in March 2008. Plaintiff traveled back and forth from New Jersey
to assist with her care. She exhausted her paid leave in 2008,
and then used unpaid leave. In February 2009, she was assigned
to DOE's Bergen County Office when the East Orange Office closed.
Two other educational specialists, Norah Peck and Pernell Brice,
were assigned to the Bergen office after her. They had office
space near plaintiff. Plaintiff previously worked with Peck and
had a "friendly" relationship with her.
In 2009, plaintiff exhausted her paid leave time again and
used unpaid "voluntary furlough." Her requests to use
"intermittent family leave" under the FLA were approved. Dr.
Aaron Graham, plaintiff's supervisor in the Bergen office,
2 The CEPA claim in Count Three was dismissed by the court shortly before trial after plaintiff elected to proceed with the LAD perceived disability and retaliation claims.
3 A-5113-14T3 testified that he "certainly support[ed]" plaintiff's use of
family leave, which he thought was "a legal entitlement" and "a
good thing" for State employees. However, plaintiff frequently
was late to work or absent for reasons unrelated to her mother's
illness, such as oversleeping or attending her own medical
appointments. At times, plaintiff would report off from work or
call in that she would be late after her scheduled start time.
Plaintiff's unanticipated absences affected the operations of the
office because she would miss meetings and then need to have
information explained to her. She used more time off than other
employees and exhausted her paid leave time by mid-year in 2009.
In the Fall of 2009, plaintiff's relationship with Peck became
strained when on October 2, 2009, Peck had a discussion with
plaintiff, advising plaintiff that because of her absences, Peck
could not rely on her. Although Peck testified she was concerned
that plaintiff was jeopardizing her job, plaintiff interpreted
this conversation as a criticism of her use of intermittent family
medical leave. According to Peck, plaintiff was "vibrating with
rage" and crying during the conversation; she screamed at Peck in
the office. After that, Peck was "nervous" to be around plaintiff;
she was "afraid to have interactions with her." Plaintiff accused
Peck of shutting her out, which she said was "inhumane" and created
a hostile work environment.
4 A-5113-14T3 Plaintiff's work relationship with Sharon Rosario, another
educational specialist assigned to the Bergen office after Brice
transferred, also was strained. Rosario asserted that plaintiff
sent her multiple emails daily and wanted immediate responses.
Rosario testified about an incident where plaintiff came up behind
her and Peck, screaming at Peck about responding to her emails.
Plaintiff called Peck a "bully" and yelled at Peck as she was
walking away from plaintiff.
Plaintiff interpreted a comment from Graham that she received
in her April 2010 interim performance assessment review (PAR) as
critical of her because of her use of family leave. In the
"Specific Areas Identified for Development" section, he wrote,
"[S.A.] has family support and care giving needs that result in
her making more than usual leave requests. While understanding
her circumstance[s], [S.A.] needs to develop improved ways and
means to increase her days in the office as she meets family
needs." Graham testified that this was a reference to her non-
family leave absences because she had not taken any family leave
during the timeframe covered by that PAR. He wanted her to spend
more time in the office on non-family leave days. He spoke to her
about her use of non-family leave time. She received a
"satisfactory" rating on the PAR, checked the box on it that said
she agreed with it, and signed it. John E. Boreman, DOE's County
5 A-5113-14T3 School Business Administrator in the Bergen office, talked to
plaintiff about her non-family leave attendance issues; he would
not permit her to work through her lunch. Plaintiff's pattern of
unscheduled leave continued. She used more non-family leave time
than others.
Plaintiff testified that Peck and Rosario "shunned" and
"isolated" her professionally. Plaintiff wanted the education
specialists to be able to share their work calendars even though
she had access to them through the Superintendent's secretary.
She wanted to move her office closer to Peck and Rosario. Graham
did not grant her requests.
When Graham retired in November 2010, plaintiff asked for a
reassignment, mentioning the issues with Peck and Rosario in her
email to Dodi Price, DOE's Director of Human Resources and to
David Corso, then DOE's Director of Administration. Plaintiff
claimed Peck created a hostile work environment because of
plaintiff's use of family medical leave, Peck and Rosario excluded
her from activities in the office, she had "high anxiety and even
higher blood pressure levels" and could not "tolerate working
under these conditions."
Plaintiff was referred to Mabel Williams, the Affirmative
Action (AA) Officer and manager of the Equal Employment Opportunity
(EEO) Office, after she emailed Corso and Price that she was
6 A-5113-14T3 "depressed," "losing sleep and suffering blood pressure increase"
and "sick" because of Peck and Rosario. After plaintiff and
Williams talked, Williams told plaintiff that none of the behaviors
she described "violate[d] the State [p]olicy." Williams did not
think plaintiff had been discriminated against. Williams
suggested that plaintiff, Peck and Rosario attend mediation about
the workplace issues. Although plaintiff was willing to do so,
Peck and Rosario did not want to mediate "because they d[id] not
believe it would be productive." Williams told plaintiff this on
February 3, 2011. Plaintiff emailed Williams "IS THERE NO ONE
AT NJDOE WHO CAN STOP THIS BEHAVIOR OF MY COLLEAGUES? DO I HAVE
TO WITHSTAND THE OSTRACIZATION [sic] by them without remedy?"
After Williams replied that Human Resources would be in touch,
plaintiff emailed Williams, copying Price and Corso:
who is that? I need to know. And who is it who will be in touch? I can't face work tomorrow . . . . I can't do it. The very fact that my colleagues say it would be unproductive tells me all . . . they have no need to care and this will go on without relief . . . no one seems to care. No one . . . . I'm sick, I'm sick . . . . I can't do this an[y]more.
Although Williams originally had recommended plaintiff's
referral to the Employee Advisory Services (EAS) for counseling,
she recommended to Price that "immediate action be taken" based
7 A-5113-14T3 on the "urgent need for help" emphasized in the email. Price was
concerned from the email that plaintiff "may hurt herself."
Plaintiff was directed to attend an evaluation scheduled for
her by DOE with Dr. Carl Chiappetta, a psychiatrist, to evaluate
if she was fit for duty or a danger to herself or others. During
the evaluation on February 28, 2011, plaintiff became concerned
about proceeding without first consulting her attorney or union
representative because Dr. Chiappetta explained he had been given
a file about plaintiff by DOE's Human Resources Department, and
she left the appointment. It was rescheduled, but Price advised
her that she could be subject to discipline if she did not attend
the next scheduled evaluation. Plaintiff was placed on paid leave.
The evaluation was conducted on March 17, 2011. Dr.
Chiappetta wrote in a "stat report" that day that plaintiff should
receive professional counselling and not return to work for two
months. He issued a more complete report on March 18, 2011, that
reached the same conclusion. Plaintiff was placed on
administrative leave for two months without pay. She received
counselling, that she arranged privately, from Dr. Jane Sofair, a
psychiatrist who had treated her in the past. Price told plaintiff
that before she could return to work, there would need to be a
meeting to "clearly outline what the expectations are regarding
acceptable office behavior."
8 A-5113-14T3 Plaintiff filed suit against DOE in April 2011, seeking
damages, lost wages, punitive damages and attorney's fees. The
parties attempted to resolve the issues. In a letter dated July
1, 2011, DOE's attorney proposed settlement terms that included
transferring plaintiff to work for James McBee at DOE's Office of
School Improvement in Trenton. Plaintiff rejected the settlement
offer.
On July 20, 2011, Dr. Chiappetta issued a report, finding
that plaintiff was fit for duty. Price advised plaintiff by letter
that she was cleared to return to work and to follow Dr.
Chiappetta's recommendation for outpatient treatment and
prescribed medications. Price enclosed a guide for appropriate
office conduct prepared by a Deputy Attorney General and attached
a copy of a portion of the Administrative Code concerning "causes
for discipline." She returned to work at the Bergen office on
July 25, 2011. Plaintiff continued to email about being excluded
by colleagues; she alleged that DOE had not investigated her claims
about retaliation for her use of family medical leave.
Plaintiff asked for a transfer to DOE's Sussex office. She
was not selected for that position. Plaintiff contended that
Rosalie Lamonte, the Sussex County Superintendent, asked plaintiff
during the interview about her use of voluntary furlough, a claim
denied by Lamonte. She said it was plaintiff who mentioned taking
9 A-5113-14T3 leave time. Plaintiff was transferred to DOE's office in Trenton
under McBee's supervision in November 2011.
A jury trial was conducted in April and May 2015. After
sixteen days of trial, on June 2, 2015, the jury found for DOE on
all counts that remained. The court dismissed the case.
On appeal, plaintiff claims that errors by the trial court
require reversal and retrial. Plaintiff contends the trial court
erred by not determining that it was unconstitutional for a public
employer to require, based on N.J.A.C. 4A:6-1.4(g), a public
employee to undergo a fitness for duty psychiatric evaluation
without notice or an opportunity for a hearing. She argues the
trial court committed reversible error by admitting into evidence
and by allowing testimony about a file of documents that related
to her non-FMLA absences. She claims she was denied access to
those records when she requested, pretrial, to review them. She
contends the court erred by allowing testimony about her past
mental health treatment. She asserts the court made erroneous
evidentiary rulings by denying the admission as evidence of a DOE
letter that offered her settlement terms, permitting testimony
about a document that listed "acceptable" office behaviors,
admitting reports from a psychiatrist who examined plaintiff for
DOE, and by not allowing time for plaintiff to produce a witness.
Plaintiff argues the court erred by not charging the jury
10 A-5113-14T3 separately on the claim of perceived disability discrimination.
There is no merit to any of these issues.
II
"In reviewing a trial court's evidential ruling, an appellate
court is limited to examining the decision for abuse of
discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing
Brenman v. Demello, 191 N.J. 18, 31 (2002)). The general rule as
to the admission or exclusion of evidence is that "[c]onsiderable
latitude is afforded a trial court in determining whether to admit
evidence, and that determination will be reversed only if it
constitutes an abuse of discretion." State v. Feaster, 156 N.J.
1, 82 (1998) (citations omitted); see also State v. J.A.C., 210
N.J. 281, 295 (2012). Under this standard, an appellate court
should not substitute its own judgment for that of the trial court,
unless "the trial court's ruling 'was so wide of the mark that a
manifest denial of justice resulted.'" State v. Marrero, 148 N.J.
469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).
A
The trial court allowed the admission into evidence of
plaintiff's attendance records that were kept in a file maintained
in the Bergen office. The records showed her non-family leave
absences and late arrivals from 2009 to 2011. The file was
provided to plaintiff during discovery, although it was not shown
11 A-5113-14T3 to her in 2010, prior to when her lawsuit was filed. Corso told
her then that the records could not be used for legal purposes.
Although plaintiff objected to its introduction, the court
found that plaintiff "opened the door to her attendance record via
her testimony during direct examination." The records also were
admissible "for impeachment purposes as [p]laintiff claimed that
she 'accounted for all of her leave time.'" The court observed
that
[t]he communications by plaintiff evidencing reasons for use of leave time will allow [d]efendant to establish what leave time was used for what purpose. This is central to issues at bar as [p]laintiff can only recover for retaliation for certain categories of used leave time.
There was no abuse of discretion by the trial court in
admitting these records into evidence. Plaintiff's case centered
on her allegation that she was discriminated and retaliated against
because of her use of family medical leave. Graham and Price
testified that it was her other absences, many of which were not
pre-approved, that had an operational impact on the office. The
records in question were relevant to show the other reasons for
plaintiff's absences that did not relate to her use of family
medical leave.
The court found that plaintiff had opened the door to this
issue by testifying about her attendance record. See State v.
12 A-5113-14T3 James, 144 N.J. 538, 554 (1996). To rebut her claim of
discrimination or retaliation, her employer needed to prove
legitimate and non-discriminatory reasons for its actions. See
Depalma v. Bldg. Inspection Underwriters, 350 N.J. Super. 195,
213-4 (App. Div. 2002) (providing that "the necessary elements and
proofs" of an FLA retaliation claim "must follow the pattern
applicable to claims under the [LAD]."). The records were
probative of DOE's reasons for its actions.
We agree that the admissibility of the records did not depend
on whether they were or could be used by DOE for disciplinary
purposes. The records were provided to plaintiff in discovery.
She had every opportunity to explore the issues raised by them
before trial. Therefore, there was no misuse of discretion by the
trial court in admitting this evidence, which was relevant,
probative and not unduly prejudicial. See N.J.R.E. 401.
B
Plaintiff claims the court erred by permitting testimony
about her past mental health treatment. She testified that she
had seen a psychiatrist for limited periods since 1987 for
depression. Her family doctor prescribed anti-depressant
medication for her for over twenty years. Her lawsuit against DOE
sought damages for emotional distress, stress and anxiety due to
discrimination and retaliation.
13 A-5113-14T3 The past treatment was relevant to her damage claims based
on her testimony. We discern no misapplication of discretion by
permitting testimony about plaintiff's mental health treatment
under these circumstances. She raised the issue about depression
and medication. Her doctor's testimony that she showed "anxiety
. . . secondary to hostile workplace," tended to support her claim
and thus evidence that she had psychiatric difficulties prior to
working in this environment was not unduly prejudicial.
C
The trial court denied plaintiff's request to place in
evidence a July 1, 2011 letter from DOE's attorney that proposed
settlement of the litigation. Plaintiff contended this letter was
proof of DOE's retaliation because it conditioned plaintiff's
transfer to another office on her dismissal of this litigation and
release of all claims. Plaintiff rejected the settlement offer.
She alleged she was entitled to a transfer without conditions.
The court denied admission of the letter under N.J.R.E. 408, but
did permit plaintiff to testify that DOE "sought to have [her]
drop her lawsuit in exchange for a transfer."
We agree that the offer of settlement was properly excluded.
N.J.R.E. 408 provides that settlement proposals are generally not
"admissible to prove liability for . . . the disputed claim." See
Brown v. Pica, 360 N.J. Super. 565, 568 (Law Div. 2001). There
14 A-5113-14T3 is an exception where the evidence is "offered for another
purpose."
The letter did not prove plaintiff had a right to transfer.
See Klusaritz v. Cape May Cty., 387 N.J. Super. 305, 317 (App.
Div. 2006) (proving no "right" to any government job). The letter
offered to transfer her to a position under McBee. He would accept
administrative transfers although there was no posted vacancy for
the position. She also was not prejudiced because the trial court
allowed her to argue to the jury that she was denied the transfer
because she would not settle the case.
D
Dr. Chiappetta issued four reports. These included a March
17, 2011 "stat" report that stated plaintiff was "unable to work;"
a March 18, 2011 "Psychiatric Fitness for Duty Evaluation/Risk
Assessment," reaching the same conclusion and making
recommendations for outpatient treatment; an April 26, 2011 letter
explaining the March 18, 2011 assessment; and a July 20, 2011
summary that concluded plaintiff was fit for duty. Plaintiff
contends the trial court erred by admitting into evidence three
of Dr. Chiappetta's reports.
The court barred admission of Dr. Chiappetta's March 18, 2011
report toward the end of the trial, finding it was not a business
record under the hearsay exception. See N.J.R.E. 803(c)(6). By
15 A-5113-14T3 that time, it was clear that DOE was not going to call Dr.
Chiappetta to testify. The other reports were already in evidence
and the jury had heard testimony about them.
We agree with the court that the March 18, 2011 report was
not a business record. Although it was part of DOE's file, its
reliability had not been established. See N.J.R.E. 803(c)(6)
(providing that the "sources of information or the method, purpose
or circumstances of preparation" must indicate trust and
worthiness). The report could have been admitted, however, as a
non-hearsay statement.
Hearsay is "a statement, other than one made by the declarant
while testifying . . . offered in evidence to prove the truth of
the matter asserted." N.J.R.E. 801.
Statements that might otherwise be hearsay may be admissible if they are not offered to prove the truth of the matter asserted. See N.J.R.E. 801(c); State v. Long, 173, N.J. 138, 152 (2002). Indeed, "where statements are 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, the statements are not inadmissible hearsay," Spragg v. Shore Care, 293 N.J. Super. 33, 56 (App. Div. 1996) (citation omitted); see also Jugan v. Pollen, 253 N.J. Super. 123, 136 (App. Div. 1992).
[El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 164 (App. Div. 2005).]
16 A-5113-14T3 In El-Sioufi, plaintiff alleged employment discrimination in
violation of LAD based on her religion. She contended that a
certification and information from a file, containing complaints
about her, should not have been considered by the trial judge on
summary judgment. We found that the statements relied on by
defendants "were relevant" to show its basis for reassigning her.
Ibid. The issue was not whether the information in the file was
true; but whether defendants "acted reasonably in light of that
information." Id. at 165.
In Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354 (2007),
the Court held that "within the usual limits that govern the
admissibility of evidence as a whole, an investigative report
concerning an employee is admissible as non-hearsay statements
whenever the employer's motivations are directly at issue." Id.
at 376.
The issue here was not whether plaintiff actually was fit for
duty. Rather, the March 17, 2011 "stat" report and the March 18,
2011 follow-up report were relevant in explaining the DOE's
"legitimate and non-discriminatory" action in placing plaintiff
on administrative leave, which was part of DOE's defense to the
LAD claim. The March 17, 2011 "stat" report also contained a
statement from Dr. Chiappetta that "upon return to work, have
supervisor meet with her and establish very clear 'expectations'
17 A-5113-14T3 about what is acceptable behavior or not." That language was
relevant to DOE's defense about creating a list of acceptable
behaviors that plaintiff challenged as retaliatory conduct by DOE.
Thus, admission of these documents for non-hearsay purposes was
appropriate.
The April 26, 2011 letter from Dr. Chiappetta was in response
to DOE's letter asking him "to expand upon [his] findings." His
response was that
[h]er problematic behaviors have been well documented, and have caused much tension, fear, disruption and loss of efficiency. Those factors have effected [sic] the way ordinary day to day business has been conducted in her workplace, on the part of her co-workers and superiors.
That letter simply reiterated the operational effects that other
DOE witnesses testified about. Its admission was not prejudicial
to plaintiff.
The July 20, 2011 report by Dr. Chiappetta stated that
plaintiff was fit for duty. Admission of the report to show that
the statements were made and that the "listener took certain action
as a result thereof," El Sioufi, 382 N.J. Super. at 164, was for
non-hearsay purposes. The report opined that plaintiff was fit
for duty and did not pose any danger to herself or others. Although
the better approach might have been to redact Dr. Chiappetta's
diagnoses from the document, see N.J.R.E. 808, we cannot say it
18 A-5113-14T3 was unduly prejudicial to plaintiff or "clearly capable of creating
an unjust result." R. 2:10-2.
E
Plaintiff claims the court erred in allowing testimony about
her attorney's March 29, 2011 letter that provided "[i]f there is
a list of acceptable office behaviors that exists at my client's
place of employment, I would ask that this list be forwarded to
me so that I may review the same with my client prior to her return
to work." DOE relied on the letter to argue that plaintiff asked
for a list of acceptable behaviors, while plaintiff argued this
was simply more evidence of retaliation by DOE.
We discern no error by the trial court's exercise of
discretion here. Plaintiff was permitted to argue that her
attorney was not asking DOE to create a list of acceptable
behaviors but wanted DOE to provide this information if it already
existed. DOE was permitted to argue that plaintiff requested the
list of behaviors. The jury heard both sides of this issue. After
carefully reviewing the record, we conclude that plaintiff's
arguments about this issue are without sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E).
19 A-5113-14T3 F
Plaintiff argues the court erred by not delaying the trial
so that she could subpoena Robert Gilmartin for limited rebuttal
testimony. We find no abuse of discretion.
Gilmartin was the Bergen County Superintendent after Graham
retired. In a May 20, 2015 order, the trial court rejected
plaintiff's request for an adverse inference charge when DOE did
not call Gilmartin as a witness. The court reasoned that Gilmartin
was available to both parties as a witness because he no longer
was employed by DOE.
Plaintiff then attempted to subpoena Gilmartin to rebut
certain limited testimony, but he was out of state and no one knew
when he would be available to testify. The court denied
plaintiff's request to delay the trial for his testimony on
rebuttal.
The trial court must "weigh in the balance the concern of the
law for orderly and efficient administration of the jury process."
State v. Garfole, 76 N.J. 445, 457 (1978). Evidence Rule 403
allows the court to exclude evidence to avoid "undue delay, waste
of time, or needless presentation of cumulative evidence."
N.J.R.E. 403.
Plaintiff wanted to call Gilmartin as a witness but did not
actually know when he would be available to testify. His testimony
20 A-5113-14T3 was proffered to rebut other witnesses whose cross-examination
already had elicited testimony about the weaknesses plaintiff
sought to explore through Gilmartin. In these circumstances,
there was no abuse of discretion by declining to further delay the
trial.
G
Plaintiff claims the court's jury instruction on
discrimination constituted reversible error. She wanted a
separate instruction to the jury on discrete acts of discrimination
in addition to the hostile work environment instruction. In
rejecting this request, the court found that plaintiff's claim for
discrimination encompassed her "claim for hostile work environment
under LAD based on perceived disability." "The discrimination
. . . in this case was the hostile work environment itself." The
court declined to charge on discrete acts of discrimination.
In reviewing the adequacy of the judge's charge to the jury,
we must consider the charge as a whole in determining whether it
was prejudicial. See State v. Figueroa, 190 N.J. 219, 246 (2007)
(citing State v. Wilbely, 63 N.J. 420, 422 (1973)). "[A]ppropriate
and proper jury charges are essential for a fair trial." State
v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish,
181 N.J. 553, 613 (2004) (citation omitted)); State v. Collier,
90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287
21 A-5113-14T3 (1981)). "[E]rroneous jury instructions constitute [] reversible
error where the jury outcome might have been different had the
jury been instructed correctly." Washington v. Perez, 219 N.J.
338, 351 (2014).
A hostile environment claim under LAD is different from a
discrete act claim. Regarding hostile environment claims,
[t]heir very nature involves repeated conduct. The 'unlawful employment practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative affect of individual acts.
[Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 19 (2002) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002)).]
There was nothing erroneous or prejudicial about the judge's
charge to the jury. Plaintiff's Count Four did not allege discrete
acts of discrimination.
H
Plaintiff contends she was constitutionally entitled to
notice and an opportunity for a hearing before she was required
to undergo a fitness for duty examination.
It is well-settled that appellate courts "will decline to
consider questions or issues not properly presented to the trial
court when an opportunity for such a presentation is available
22 A-5113-14T3 'unless the questions so raised on appeal go to the jurisdiction
of the trial court or concern matters of great public interest.'"
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting
Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.
Div. 1959)).
Plaintiff failed to plead a constitutional claim in her
complaint. An appellate court should not recognize a cause of
action not pleaded in the plaintiff's complaint. Bauer v. Nesbitt,
198 N.J. 601, 610 (2009). Plaintiff also advised the court that
she did not want it to decide the constitutionality of the fitness
for duty examination and was raising the issue to argue against
admission of Dr. Chiappetta's reports.
That said, plaintiff had notice and an opportunity to contest
the examination. When she was first scheduled for the examination,
she appeared and then left because she wanted the opportunity to
consult with her attorney. She consulted with a union
representative, the examination was rescheduled, and she attended.
There was ample opportunity between the two examinations for
plaintiff to assert that she wanted a hearing or to ask for relief
under her contract but she did not do so. Therefore, we have no
need to reach the constitutionality of the regulation cited by DOE
as the basis for the examination.
Affirmed.
23 A-5113-14T3