AMY BOGGS v. PHILLIP S. VAN EMBDEN, P.C., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1663-04T51663-04T5

AMY BOGGS,

Plaintiff-Appellant,

v.

PHILLIP S. VAN EMBDEN, P.C.,

A New Jersey Professional

Corporation, and PHILLIP S.

VAN EMBDEN, ESQUIRE, jointly,

severally, and in the alternative,

Defendants-Respondents.

___________________________________

 

Submitted October 31, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-00257-03.

Van Syoc Chartered, attorneys for appellant (Sebastian B. Ionno and Clifford L. Van Syoc, on the brief).

Barker, Douglas & Scott, attorneys for respondents (Michelle J. Douglass, on the brief).

PER CURIAM

Plaintiff, Amy Boggs, appeals from a summary judgment dismissing her employment discrimination complaint alleging violation of the Family Leave Act (FLA), N.J.S.A. 34:11B-1 to

-16, and the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.

Viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following facts. Plaintiff worked as a legal secretary for the Millville law firm of defendant, Phillip S. Van Embden, from March 25, 1995, until her termination on November 2, 2000. The law firm employs about ten people. Plaintiff worked there continuously with the exception of one day in 1997 when she quit to work for a local dentist, only to return to the law firm the very next day.

On November 1, 2000, defendant confronted plaintiff about her poor work performance and her attempt, while at work, to "fix" a co-worker's traffic ticket with a friend who was a State Trooper. At a meeting in the firm's conference room with the office manager present as a witness, defendant discussed with plaintiff the inappropriateness of engaging in excessive personal phone calls and the fact that her work was suffering as a result. Defendant also addressed the ethical impropriety of arranging to fix a speeding ticket while at work. Although plaintiff denied any deficiency in her work performance, she admitted trying to fix a speeding ticket on company time. During the meeting, however, when confronted with the accusation, plaintiff was screaming and yelling. After the meeting, she told co-workers that defendant was an "a**hole."

The following day, November 2, 2000, plaintiff was fired. When she arrived at work, defendant informed her that in light of what transpired the previous day, he did not feel comfortable having her in the office and that her position was going to be eliminated effective immediately. According to defendant, plaintiff was terminated because of poor work performance and the attitude she exhibited when confronted with issues of competence and ethics.

Plaintiff claimed her termination was for other reasons. She suffered from occasional gallbladder attacks for which her surgeon on October 31, 2000, recommended surgery. Consequently, plaintiff scheduled gallbladder surgery for the last week of December, when the office would be closed for the holidays, and plaintiff would, therefore, not miss any time from work. According to plaintiff, immediately after her meeting with defendant on November 1, 2000, she informed him that she would be undergoing a gallbladder procedure, which, as noted, she had scheduled during the week between Christmas and New Years when the law firm was closed for business. Because she was fired the very next day, plaintiff suspects she was discriminated against because of her medical condition, and further complains that defendant failed to reasonably accommodate this so-called "handicap."

Plaintiff also claims to have been exposed to a hostile work environment while at defendant's law firm. Plaintiff is Caucasian and married with a biracial child, Jordan, from a previous relationship. Supposedly, shortly after plaintiff began working at the law firm, and after viewing her family photograph, defendant inquired of plaintiff's co-workers "why no one had told him about [Jordan's] racial background." On another occasion, before her one-day hiatus from the law firm, defendant, referring to a group of African-American boys from the local high school, allegedly commented to plaintiff: "Do you know any of those guys?"; or, "Have you dated any of them?"; and "Do they know Jordan's dad?" Finally, sometime prior to her voluntary quit in 1997, plaintiff claims that defendant asked her on one occasion whether "my mother or I would get looked at differently or funny when we went to pick up Jordan at St. Mary's School that he attended."

Upon her return to the law firm, plaintiff overheard comments between defendant and a local attorney about why there was only one black person on the television show, Star Trek, although she was unable to say when this remark was made. On another occasion, defendant asked plaintiff why Jordan lived with plaintiff's mother rather than plaintiff and her husband, although plaintiff was uncertain whether this inquiry was racially motivated. Supposedly, defendant would comment on occasion to both plaintiff and her co-workers "that he didn't understand why white girls would go with black men." Lastly, plaintiff claimed that defendant "would make jokes about different races and homosexuals and would sometimes mimic how a black person would talk." However, plaintiff was unable to recall the substance of any of these jokes or specifically when they were made.

Plaintiff filed her two-count complaint on October 15, 2002. The first count alleged wrongful termination in violation of the FLA. The second count alleged violations of the LAD, namely, handicap discrimination because defendant failed to provide her reasonable accommodations, and hostile work environment and harassment because she was the mother of a biracial child.

On June 20, 2003, the motion judge granted defendant summary judgment dismissing the FLA claim because FLA does not apply to employers, like defendant, who employ less than fifty employees, N.J.S.A. 34:11B-3(f)(1); N.J.A.C. 13:14-1.2; Callari v. Rehau, Inc., 14 F. Supp. 2d 620, 622 (D.N.J. 1998), and because the FLA does not protect employees, like plaintiff, taking leave for their own "serious health condition[s]." N.J.S.A. 34:11B-3(i), -4. At the same time, the court denied plaintiff's cross-motion to amend her complaint to assert a Pierce claim of common-law wrongful termination "contrary to a clear mandate of public policy." The court reasoned that since the source of the public policy was the FLA, and the FLA was determined to be inapplicable, plaintiff's amendment was clearly lacking in merit to warrant denial of relief under Rule 4:9-1.

Thereafter, defendant filed a second motion for summary judgment seeking to dismiss the remaining count of plaintiff's complaint. The judge granted this relief, finding that: (1) there was no handicap discrimination because, whether or not plaintiff either had a handicap recognized under the LAD, or was perceived to have had a handicap, she never sought an accommodation for her condition, and her condition did not require any accommodation by the employer; and (2) plaintiff did not establish a prima facie race harassment case because the comments complained about were neither severe nor pervasive; and, were nonetheless time-barred because the acts occurred more than five years before the plaintiff filed her complaint. Specifically, the court reasoned:

[T]he most obvious of all is that there is no failure to accommodate, and the reason there's no failure to accommodate . . . the office was shut down. She simply came there, advised him that while the office was shut down, she was going to have . . . a minor surgery. And that's it, on her time. He didn't have to accommodate her.

. . . .

. . . I don't believe any jury could reach the conclusion that this woman was fired to avoid an accommodation when there was no accommodation required. It's just that simple.

There is absolutely no accommodation even requested. She simply advised him that she was getting this surgery taken care of when . . . the office was shut down . . . . There was no request to accommodate because she was going to do it on her own time, and therefore there was no failure to accommodate, . . . and therefore, there could be no way that the firing of her for these other reasons could have been some pretext to avoid some accommodation request that was never made.

. . . .

You know, I'm accepting the factual

. . . allegations as to all of the alleged conduct in '95 through '97 in terms of these remarks being made . . . ,

. . . .

I'm not certain that any of those allegations are severe. I believe that the continuous violation theory sort of requires, you know, something serious to have transpired in the previous remarks. I'm not certain the remarks made in the '95 through '97 time period, and the unique facts of this case where we're dealing with a Caucasian who had a bi-racial child -- overheard him make some of these comments --you know, I'm hard pressed to see how the Star Wars comment in and of itself can -- can rise to any level of anything.

On appeal, plaintiff argues:

I. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S CROSS-MOTION TO AMEND HER COMPLAINT.

II. THE TRIAL COURT ERRED IN PERMITTING THE DEFENDANTS TO FIRST ASSERT THE AFFIRMATIVE DEFENSE OF THE STATUTE OF LIMITATIONS NEARLY TWO YEARS AFTER THE PLAINTIFF FILED SUIT.

III. EVEN IF THE TRIAL COURT CORRECTLY

CONSIDERED THE MERITS OF THE DEFENDANTS' STATUTE OF LIMITATIONS DEFENSE, THE TRIAL COURT ERRED IN HOLDING THAT THE PLAINTIFF'S RACE-BASED LAD CLAIMS WERE TIME BARRED.

A. THE PLAINTIFF HAS ESTABLISHED A PRIMA FACIE CASE OF RACIAL DISCRIMINATION UNDER THE LAD.

B. THE PLAINTIFF'S RACIAL DISCRIMINATION CLAIM IS NOT TIME BARRED UNDER THE CONTINUING TORT DOCTRINE.

IV. THE TRIAL COURT ERRED IN HOLDING THAT THE PLAINTIFF DID NOT HAVE A VIABLE HANDICAP DISCRIMINATION CLAIM UNDER THE LAD.

V. THE TRIAL COURT ERRED WHEN IT REFUSED TO STRIKE PORTIONS OF THE DEFENDANTS' STATEMENT OF MATERIAL FACTS WHICH VIOLATED R. 4:46 AND R. 1:6-6.

VI. IN ORDER TO AVOID THE APPEARANCE OF IMPROPRIETY THIS COURT SHOULD TRANSFER VENUE BACK TO ATLANTIC COUNTY ON REMAND UNDER THE PLAIN ERROR STANDARD.

We will address the principal issues individually.

(i)

Leave to amend a complaint is governed by Rule 4:9-1 and is committed to the sound discretion of the trial court. Pressler, Current N.J. Court Rules, comment 2:2-1 on R. 4:9-1 (2006). Such a motion may be denied if the court deems "the amendment is so meritless that a motion to dismiss under R[ule] 4:6-2[(e)] would have to be granted." Ibid.

Here, plaintiff sought to amend her complaint to include a cause of action for wrongful discharge, alleging her discharge contravened a clear mandate of public policy. See Pierce, supra, 84 N.J. at 72. Her proposed amended complaint identified the FLA as the source of the public policy claimed to have been violated by plaintiff's termination. However, as previously noted, the FLA does not apply to defendant, who employs less than fifty employees, or to plaintiff, who sought leave to care for her own health condition. There being no violation of the FLA in this case, a fortiori defendant has not contravened any of the public policies embodied in the act in terminating plaintiff's employment. Accordingly, the motion judge did not abuse his discretion in denying plaintiff's motion to amend her complaint.

(ii)

We also conclude that summary judgment dismissing plaintiff's handicap discrimination claim was proper. Initially, we note that plaintiff specifically pled a "failure to accommodate" claim. The second count of her complaint expressly alleged:

The condition which caused plaintiff to need to undergo surgery was a handicap which could have readily been accommodated by the defendant, and should have been accommodated by the defendant, simply by giving plaintiff the limited time off necessary to undergo surgery and to convalesce.

Assuming without deciding that plaintiff's gallbladder condition constituted a handicap within the meaning of N.J.S.A. 10:5-5(q), we are satisfied, for substantially the same reasons stated by the motion judge, that there was no failure to accommodate here because plaintiff's condition did not require an accommodation. And, quite separate and apart from the absence of a request for a reasonable accommodation, we also find lacking any proof that plaintiff's actual or perceived handicap motivated defendant to discriminate against her. In fact, plaintiff herself admits that in the past she enjoyed leaves of absence for medical reasons without recrimination. Plaintiff also acknowledges the ethical lapse cited by defendant as the reason for her termination. What plaintiff has not done is offer any proof that the legitimate reasons articulated by defendant for her discharge were either not credible or "a pretext for discrimination." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005). Lacking such proof, summary judgment dismissing that part of the second count alleging handicap discrimination was proper.

(iii)

The other claim embodied in plaintiff's LAD-based second count is one for hostile work environment and racial harassment. Even assuming that plaintiff, a Caucasian alleging discrimination on account of her bi-racial son, is protected in this instance by the LAD, we find insufficient proof that defendant violated its provisions.

Plaintiff's claim is based on the LAD, which prohibits discrimination "because of race . . . ." N.J.S.A. 10:5-3.

When a black plaintiff alleges racial discrimination under the LAD, she must demonstrate that the defendant's "conduct (1) would not have occurred but for the employee's [race]; and [the conduct] was (2) severe or pervasive enough to make a (3) reasonable [African American] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive."

[Taylor v. Metzger, 152 N.J. 490, 498 (1998) (alteration in original) (quoting Lehmann v. Toys "R" Us, Inc., 132 N.J. 587, 603-04 (1993)).]

In other words, to demonstrate a hostile work environment, plaintiff must allege that the unwelcome conduct was "sufficiently severe or pervasive 'to alter the conditions of

. . . employment and create an abusive working environment.'" Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49, 60 (1986) (emphasis added) (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).

Under this standard, although if severe enough "one incident of harassing conduct can create a hostile work environment," Taylor, supra, 152 N.J. at 499, "it will be a rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable [person situated as the claimant], make the working environment hostile . . . ." Lehmann, supra, 132 N.J. at 606-07. Usually, "'mere utterance of an epithet which engenders offensive feelings in an employee,' does not sufficiently affect the conditions of employment . . . ." Taylor, supra, 152 N.J. at 501 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295, 302 (1993)). Rather, "repeated racial slurs" are necessary to establish a racial harassment claim. Id. at 500; see also Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131-32 (4th Cir. 1995).

"'Whether the conduct is so severe as to cause the environment to become hostile or abusive can be determined only by considering all the [surrounding] circumstances . . . .'" Taylor, supra, 152 N.J. at 502 (quoting Nadeau v. Rainbow Rugs, Inc., 675 A.2d 973, 976 (Me. 1996)). These circumstances include "the type of conduct (verbal or physical), its frequency, its offensiveness, the hostility of the conduct, whether the harasser is a co-worker or a supervisor, . . . the number of persons at whom the harassment was directed,'" id. at 504 (quoting King v. Hillen, 21 F.3d 1572, 1580 (Fed. Cir. 1994)), "'whether [the conduct] is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Watkins v. Nabisco Biscuit Co., 224 F. Supp. 2d 852, 865 (D.N.J. 2002) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S. Ct. 2275, 2283, 141 L. Ed. 2d 662, 676 (1998)). In this regard, "'conduct must be extreme to amount to a change in the terms and conditions of employment . . . .'" Ibid. (quoting Faragher, supra, 524 U.S. at 788, 118 S. Ct. at 2284, 141 L. Ed. 2d at 677). Occasional teasing, simple offhand comments and sporadic race-related jokes "will not amount to discriminatory changes in the terms and conditions of employment" actionable under the LAD. Ibid. (quoting Faragher, supra, 524 U.S. at 788, 118 S. Ct. at 2284, 141 L. Ed. 2d at 677).

Governed by these standards, we are satisfied that plaintiff has not presented adequate evidence of the severity or pervasiveness of defendant's conduct to create a genuine issue of material fact sufficient to survive defendant's motion for summary judgment. There is no proof, for instance, that defendant ever used racial slurs in the office or directed racist epithets at plaintiff. Although there is an allegation of race-related joking, plaintiff has identified neither the content, context, time nor frequency of the remarks so as to be able to view them "from the perspective of a reasonable African American situated as the plaintiff." Taylor, supra, 152 N.J. at 506. Also absent is any claim of physically or verbally threatening or abusive behavior, much less overtly racial in nature. Simply put, we find no evidence of conduct sufficiently severe or extreme as to have deleteriously altered or affected the terms and conditions of plaintiff's employment. Because no rational fact finder could so conclude, summary judgment for defendant on the claim of LAD racial discrimination based on workplace harassment was proper.

Given this disposition, we need not additionally determine the propriety of the motion judge's decision to allow the defense of the statute of limitations although not affirmatively pled, and his further decision that, once allowed, the defense operated to bar plaintiff's LAD-based race discrimination claim, as an alternative basis in support of the summary judgment dismissal.

We have considered plaintiff's remaining claims and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Pierce v. Ortho Pharma. Corp., 84 N.J. 58, 72 (1980).

(continued)

(continued)

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A-1663-04T5

November 29, 2005