BARBARA A. CAMPER v. JAMES WHELAN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4223-04T14223-04T1

BARBARA A. CAMPER,

Plaintiff-Appellant,

v.

JAMES WHELAN, KAREN UPSHAW,

CITY OF ATLANTIC CITY AND

ANDREW MAIR, JOINTLY, SEVERALLY,

AND IN THE ALTERNATIVE,

Defendants-Respondents.

________________________________________________________________

 

Submitted September 12, 2006 - Decided September 27, 2006

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-3551-01.

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

Zeller & Bryant, attorneys for respondents (Eric J. Riso, on the brief).

PER CURIAM

Plaintiff, Barbara A. Camper, appeals from an order granting summary judgment to defendants dismissing her complaint alleging racial harassment and retaliation in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and from an order denying her motion to extend discovery. We affirm.

Plaintiff has been employed by defendant, City of Atlantic City (City), since 1988 as the affirmative action officer. She is African-American. Defendant James Whelan was a member of the City Council when plaintiff was hired. He was elected mayor in 1990, a position he held until an election loss in November 2001. Defendant Karen Upshaw, an attorney, held the position of City personnel director. Upshaw is African-American. Defendant Andrew Mair was the City's business administrator.

Plaintiff filed her complaint on November 8, 2001. She alleged that beginning with an incident in July 1992, defendants engaged in a number of adverse employment actions constituting racial harassment and creating a hostile work environment in violation of the LAD. She also alleged that these actions constituted retaliation for her role in the initial incident of July 1992.

In July 1992, James Cain, an African-American firefighter employed by the City, filed a complaint with plaintiff, as affirmative action officer, alleging that a white co-worker used a racial epithet against him. Over Whelan's objection, plaintiff attended the hearing on Cain's complaint. In voicing his objections to plaintiff's attendance at the hearing, Whelan accused plaintiff of calling a representative of the National Association of the Advancement of Colored People (NAACP) and of calling him a racist. Plaintiff denied both accusations. Plaintiff was a member of the NAACP, and has continued her affiliation with that organization. Whelan never made any racial comments to plaintiff during this incident or at any other time, nor has he ever made any racial comments about plaintiff.

After that incident, Whelan regularly shunned and avoided plaintiff. According to plaintiff, Mair did the same. Plaintiff also contended that Upshaw made disparaging remarks about her to Whelan regarding her job performance. The City's contract compliance officer, Arrawanna Allen, accused plaintiff of harassment. Allen's complaints were ultimately dropped. Allen was transferred out of the affirmative action office, and into the City solicitor's office. Allen is African-American.

Plaintiff contended that over the next several years, defendants took away some of her job responsibilities. These decisions were often made by Upshaw, plaintiff's supervisor. Many of the duties were transferred to Allen. However, plaintiff was never removed from her position as affirmative action officer, and she received all raises to which she was entitled. Although plaintiff complained about the transfer of her job duties from time to time, she did not then allege racial or retaliatory motivation. Her memos expressing her complaints were directed at job-related issues and stated she was being treated unfairly and with a lack of respect.

An incident occurred on April 1, 1999, in which plaintiff was assigned to represent the City at a Chamber of Commerce event. Plaintiff participated in the morning session, but was then relieved without prior notice and replaced by two white City employees. Plaintiff returned to the office and sought an explanation. Upshaw advised her that she had been removed due to her association with "certain people," which plaintiff understood to be a reference to her membership in the NAACP. Upshaw did not dispute plaintiff's contention in that regard.

Plaintiff complained of other employment actions that occurred beginning in December 1999. We find it unnecessary to describe them all in detail. We give some examples. She was temporarily moved to a work space that she deemed substandard; she was temporarily without clerical help when the clerk typist who worked with her was promoted and left the affirmative action office; other job responsibilities were transferred away from her; she was denied permission by Upshaw from applying for a position on the New Jersey State Police selection process oral interview committee; she was prohibited by Upshaw from directly seeking legal advice from the City solicitor and was required instead to go through Upshaw (who is an attorney).

As we have previously discussed, in making internal complaints regarding these employment actions, plaintiff never alleged discrimination, harassment, or retaliation. Plaintiff has acknowledged that none of the individual defendants have ever made any racial comments or used any racial slur or epithet regarding her.

In granting summary judgment, Judge Daryl F. Todd, Sr. concluded: (1) plaintiff's harassment and retaliation claims were time-barred to the extent they arose from incidents that occurred before November 8, 1999, more than two years before the filing of the complaint; (2) plaintiff could not make out a claim of racial harassment because she could not establish that any of the adverse actions complained of were taken because of her race; and (3) plaintiff's retaliation claim was not sustainable because she could not establish a causal link between her alleged protected activity (appearing at Cain's hearing in July 1992), and the actions about which she complained. Judge Todd correctly applied the summary judgment standard, viewing the competent evidential materials in the motion record in the light most favorable to plaintiff. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-41 (1995). On appeal, we apply the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).

The LAD prohibits race discrimination and racial harassment, with harassment viewed as a form of discrimination. N.J.S.A. 10:5-4 and 10:5-12(a). Because direct evidence of discriminatory intent is usually difficult to establish, see Bergen Commercial Bank v. Sisler, 157 N.J. 188, 209-10 (1999), plaintiffs usually proceed under the indirect method adopted by the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which has been adopted in New Jersey, to prove disparate treatment under the LAD. Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14 (2002). Under the three-part McDonnell Douglas framework, a plaintiff must first prove the prima facie elements of discrimination, after which the employer must produce a legitimate, non-discriminatory reason for the adverse employment action, after which the plaintiff bears the burden to prove that the articulated non-discriminatory reason is not the true reason for the adverse employment action, but is a pretext for discrimination. McDonnell Douglas, supra, 411 U.S. at 802-05, 93 S. Ct. at 1824-26, 36 L. Ed. 2d at 677-79.

The elements of a prima facie case of discrimination differ depending upon the factual allegations of any given case. It is up to the court to adapt the prima facie case to the circumstances presented. Viscik, supra, 173 N.J. at 14; Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 83-84 (1978). In the case before us, plaintiff must establish that the alleged acts of harassment occurred because of her race.

The LAD also prohibits retaliation, making it an unlawful employment practice:

For any person to take 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 or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected under this act.

[N.J.S.A. 10:5-12(d).]

In order to state a prima facie case of retaliation, a plaintiff must establish that: (1) she engaged in a protected activity known to defendants; (2) she was subjected to an adverse employment action by defendants after she engaged in the protected activity; and (3) there was a causal connection between the protected activity and the adverse employment action. If the plaintiff makes out a prima facie case of retaliation, defendants bear the burden of articulating a legitimate, non-retaliatory reason for their actions. If defendants meet this burden of production, then the plaintiff must prove that a retaliatory intent motivated defendants' actions, either directly, by proof that the proffered reason is pretext, or indirectly, by demonstrating that a retaliatory reason is more likely what motivated the defendants' actions. Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 418 (App. Div. 2001), aff'd in part and rev'd in part, 174 N.J. 1 (2002); Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996); Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-51 (App. Div. 1995).

Harassment, including the cumulative total of relatively minor incidents, may constitute an adverse employment action sufficient to constitute unlawful retaliation if the defendant's motive was retaliatory and the harassment was sufficiently severe or pervasive to create a hostile work environment. Shepherd, supra, 174 N.J. at 24-26; Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 434-36 (App. Div. 2005).

Here, the protected activity occurred in July 1992, when plaintiff attended the hearing on Cain's discrimination complaint, over Whelan's objection. Assisting another individual with a complaint of discrimination would constitute a protected act under the LAD. N.J.S.A. 10:5-12(d); Craig v. Suburban Cablevision, 140 N.J. 623, 630-31 (1995). Therefore, with respect to plaintiff's retaliation allegations, assuming for purposes of our analysis that defendants subjected plaintiff to adverse employment actions within the meaning of the LAD, the question presented is whether there is a causal link between her attendance at Cain's hearing and the adverse employment actions taken against her.

LAD claims are governed by a two-year statute of limitations. Montells v. Haynes, 133 N.J. 282, 292 (1993). Plaintiff did not file her complaint until November 8, 2001. However, many of the incidents about which plaintiff complains occurred more than two years before that date.

In order to avoid a statute of limitations problem, plaintiff argues that defendants engaged in a continuing violation of the LAD. Under this theory, plaintiff could support her LAD claims by relying upon acts that occurred outside the two-year limitation period as long as: (1) one of the acts contributing to the claim occurred within the limitations period; and (2) the acts are part of a continuing pattern of discrimination or retaliation, and not merely isolated or sporadic acts. Shepherd, supra, 174 N.J. at 18-21; Wilson v. Wal-Mart Stores, 158 N.J. 263, 272-74 (1999); Alliance for Disabled in Action, Inc. v. Renaissance Enters., Inc., 371 N.J. Super. 409, 418-19 (App. Div. 2004), aff'd, 185 N.J. 339 (2005); accord Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002); Harel v. Rutgers, State Univ., 5 F. Supp. 2d 246, 261-62 (D.N.J. 1998), aff'd, 191 F.3d 444 (3d Cir. 1999), cert. denied, 528 U.S. 1117, 120 S. Ct. 936, 145 L. Ed. 2d 814 (2000).

In evaluating whether alleged incidents of discrimination constitute a continuing violation, a court should consider three factors:

(i) subject matter--whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence--whether the nature of the violations should trigger an employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.

[Bolinger v. Bell Atl., 330 N.J. Super. 300, 307 (App. Div.) (quoting Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 (10th Cir. 1999)), certif. denied, 165 N.J. 491 (2000).]

Applying these principles to the facts viewed most favorably to plaintiff, we find no error in Judge Todd's conclusion that no rational factfinder could find in favor of plaintiff, thus entitling defendants to judgment as a matter of law.

Plaintiff has provided no evidence to connect the employment actions complained of to her race or to her attendance at Cain's hearing. Her harassment and retaliation claims are based solely on her subjective perceptions of events. However, subjective perceptions and personal opinions, without supporting evidence, are insufficient to sustain a LAD claim. Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 69-74, 79 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005) (affirming dismissal of gender discrimination claim, stating that "'[p]erception' like 'speculation' and 'suspicion' cannot support a cause of action").

In terms of plaintiff's racial harassment claim, she does not allege any overt acts of discrimination or racial animus. She has no knowledge of the defendants ever making a racial remark to her or to anyone else about her. She has provided no evidence that she was treated differently than similarly situated employees who were not African-Americans. Although not dispositive, it is noteworthy that Upshaw, a key decision-maker in the complained-of employment actions, and Allen, to whom many of plaintiff's job responsibilities were transferred, are both African-American. Similarly, with respect to plaintiff's retaliation claim, the majority of events about which she complains occurred many years after Cain's hearing in 1992 and have no demonstrable connection to that event.

On their face, the actions about which plaintiff complains are purely work-related and do not appear to have any discriminatory or retaliatory motive. While some of the actions may have been distressing to plaintiff and while there might have been some personal animus between her and some other City employees, the record is devoid of evidence that would support a finding that these circumstances were the result of plaintiff's race or in retaliation for her attendance in 1992 at Cain's hearing. This conclusion is bolstered by the fact that in her numerous internal complaints that the various employment actions were unfair, plaintiff never complained, until she filed this law suit, that the actions were either racially harassing, discriminatory or retaliatory. Certainly as an affirmative action officer she was well aware of her right to do so.

We also agree with Judge Todd's conclusion regarding the statute of limitations. The complained-of actions occurred sporadically over a nine-year period, between 1992 and 2001. They constitute a series of discrete and unrelated events. Plaintiff was aware of each event as it occurred, she complained about most of the events, and until the filing of this lawsuit she never attributed the events to racial harassment or retaliation. We are satisfied that application of the continuing violation theory is unwarranted, and to the extent that any of the events occurred more than two years before the filing of the complaint on November 8, 2001, they were properly dismissed as time-barred.

When defendants moved for summary judgment, plaintiff cross-moved for an extension of discovery. The original discovery end date of May 17, 2003 was twice extended for sixty days to September 15, 2003. Trial was scheduled. Any failure by plaintiff to complete depositions was not occasioned by exceptional circumstances, see R. 4:24-1(c), and we find no abuse of discretion in Judge Todd's denial of plaintiff's motion to extend discovery. See Smith v. Estate of Kelly, 343 N.J. Super. 480, 503 (App. Div. 2001).

 
Affirmed.

Judge Todd also concluded that plaintiff's racial harassment and retaliation claims failed because the employment actions complained of did not rise to the level of an "adverse employment action" that could support a LAD claim. We find it unnecessary to reach this issue and will not address it.

(continued)

(continued)

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A-4223-04T1

September 27, 2006