GINA M. DIPASQUALE v. STATE OF NEW JERSEY

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1336-07T3

GINA M. DIPASQUALE,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

Defendant-Respondent.

______________________________________

 
Argued telephonically October 16, 2008 -- Remanded October 20, 2008.

Resubmitted January 15, 2009 -- Decided

Before Judges Carchman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-228-05.

Richard M. Schall argued the cause for appellant (Schall & Barasch, attorneys; Mr. Schall and Patricia A. Barasch, on the brief).

Noreen P. Kemether, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Kemether, on the brief).

PER CURIAM

Plaintiff Gina DiPasquale appeals from the August 3, 2007 order granting summary judgment dismissing her claims of hostile work environment based on gender and retaliation. Plaintiff also appeals from the October 5, 2007 order denying her motion pursuant to Rule 4:49-2 for reconsideration and her motion pursuant to Rule 4:50-1 for relief from a judgment or order. We vacate the entry of summary judgment and remand for trial.

The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In August 1996, plaintiff began her employment as a corrections officer with the Department of Corrections (DOC). In May 2001, she became an adjunct instructor at the Correctional Staff Training Academy (the Academy), a training facility for correction officer recruits. She became a permanent instructor in September 2001.

In January 2002, female recruits complained to plaintiff that male instructors embarrassed, bullied and demeaned them because they could not keep up in physical training sessions. In February 2002, plaintiff reported to Director Buffa that male instructors were pushing female recruits to the point of physical exhaustion and illness. She also complained that male instructors sang sexually offensive cadences during physical training, used verbal obscenities, inappropriately touched female recruits, and demeaned female recruits because of their inability or perceived inability to perform physical exercises. No corrective action was taken.

After lodging her complaints, other officers began treating plaintiff differently. They would not speak to her and called her a "recruit advocate." Also, a female recruit reported to plaintiff that female recruits had been intimidated and would not write reports about their treatment for fear of retaliation. On February 14, 2002, plaintiff filed a complaint with the Equal Employment Division (EED) of the DOC, alleging on behalf of the female recruits sexual discrimination, harassment and retaliation. The EED closed the matter without an investigation.

In May 2002, Craig Conway, an openly gay man, was appointed Director of the Office of Training, the top-ranked position at the Academy. Conway allegedly created an inner-circle of good-looking, young male officers, including captains, lieutenants and sergeants who supervised plaintiff. He also allegedly gave preferential treatment and more favorable assignments to these men. Senior Corrections Officer Reginald Leven reported to an EED investigator that Conway sided with male instructors regarding their treatment of trainees.

After Conway's arrival at the Academy, conditions allegedly worsened for plaintiff. She contends that Conway ordered her to submit to a fitness for duty evaluation after she complained to him that the issues raised in her EED complaint had not been addressed. Also, according to Ellen Wasner, who worked directly for Conway, plaintiff was an ongoing topic of conversation within Conway's inner-circle wherein he repeatedly referred to her as a "psycho-bitch." Other employees reported this to plaintiff. Plaintiff was also called a "steroid queen," a "troublemaker," a "snitch" and "crazy." Conway also allegedly encouraged the group to exclude plaintiff from the training process. The group allegedly ignored plaintiff and ridiculed her physical training philosophy. Leven reported to an EED investigator that supervisors were encouraged to put pressure on plaintiff, and supervisors ridiculed and ignored her after she filed the EED complaint. Lieutenant Robert Wagner reported to an EED investigator that most of the male staff harassed plaintiff.

In July 2002, Conway directed plaintiff to leave the Academy and go to the Recruitment Office to be cross-trained in recruiting new recruits. Plaintiff claimed that she was the only person "cross-trained," and that she was replaced at the Academy by a male. Several officers reported to an EED investigator that Conway actually transferred plaintiff "to get rid of [her]" and that he did not want her to return to the Academy.

Plaintiff was transferred back to the Academy in October 2002, after Chief of Staff Charles Ellis, Conway's supervisor, issued a written directive overruling Conway's decision and ordering him to return plaintiff to the Academy. Thereafter, plaintiff claims that male officers ostracized and harassed her and that she was "written up" for minor infractions. She also was summoned daily to meet with Conway. An employee, Anne Damico, reported to an EED investigator that "something was going on and [plaintiff was] the target." Plaintiff also was not permitted to teach and was assigned to do nothing more than observe classes.

Plaintiff became ill and took a temporary disability leave on January 30, 2003. While on leave, she discovered what she characterizes as a "bogus" memorandum in her personnel file, dated February 7, 2003, falsely indicating that she had been counseled about her attendance. She also discovered that various certificates and performance awards were missing from her personnel file.

On August 18, 2003, plaintiff filed with the EED a discrimination and retaliation complaint against Conway. Wasner said that Conway became furious with plaintiff for having done so and that he "tried everything he could to have her not come back to the Academy." Conway admitted that he told other management personnel that he "didn't want [plaintiff] at the Academy." He also stated that she had filed too many complaints.

Although plaintiff's complaint was neither substantiated nor found to lack merit, the EED found that "a number of witnesses documented negative comments by [] Conway regarding [plaintiff]. Specifically, several staff recalled [] Conway indicate that [plaintiff] was sent to the Recruitment Unit to be cross-trained because he wanted to get rid of her." The EED concluded that it was "improper and divisive [for Conway] to confide in his subordinates his desires to 'get rid of' [plaintiff]." The EED also found that "a number of staff opined that [] Conway demonstrated preferential treatment to male employees[,] resulting in a referral to the Chief of Staff "for further review and administrative action."

Despite Conway's efforts to get rid of plaintiff, she returned to the Academy in January 2004, after her disability leave. She claims that thereafter she was relegated to observing classes and to desk duty with few or no tasks, that she had minimal or no interaction with trainees, and that she was disciplined for using her cell phone, while male officers using their cell phones received no discipline. She also was assigned to organize files located in a hazardous and unsafe building. No other instructor had received such an assignment

Plaintiff filed another EED complaint on May 12, 2004, alleging that Conway and his subordinates subjected her to retaliation, sex/gender discrimination and sexual harassment. The EED found "a systematic pattern of preferential treatment, selective enforcement of rules and regulations and a blatant disregard for the confidentiality of the EED investigations." The EED concluded that:

It is clear to the EED that certain employees have been treated less favorably than employees who share cordial relationships with management. However, after an evaluation of demographics of prior complainants and allegations, this office is reluctant to conclude that membership in a protected category is the determinative factor. It appears that those who overtly objected to certain management practices suffered heightened scrutiny. While this may not violate the policy prohibiting discrimination, harassment and hostile environment in the workplace, there are concerns relating to the Conscientious Employee Protection Act (CEPA), which provides protection from retaliation to employees who oppose practices that affect the good of the public. Moreover, many employees recognized a hostile disconnected relationship between supervisors and instructors. There is a clear division of staff--those who align themselves with management and those who do not. If left unaddressed, the insidious negativity that exists at the Academy could have far reaching consequences. Consequently, given the results of a number of investigations and the resistance of CSTA management to objectively address prior concerns, this office feels that only substantial changes can began to repair the damage which has been created by the pervasive inconsistent supervision.

[(Emphasis in original).]

Plaintiff resigned on June 10, 2005. Prior thereto, she had filed a complaint in the Superior Court, Law Division, alleging hostile work environment based on gender and retaliation. Defendants filed a summary judgment motion. In opposition, plaintiff's counsel submitted his certification indicating the attachment of copies of Conway's, Wasner's and Leven's deposition transcripts and copies of four EED investigation reports. However, her then-counsel apparently neglected to actually attach the documents. He also did not file a counter-statement of material facts and his oral argument was brief and of little help to plaintiff. Based on counsel's failure to file a counter-statement of material facts, the motion judge accepted as true all of defendant's statement of material facts which had a basis in the record.

The judge granted summary judgment as to plaintiff's hostile work environment claim, concluding that plaintiff failed to satisfy all four prongs of Lehmann v. Toys R' Us, Inc., 132 N.J. 587 (1983). The judge found that the "psycho-bitch" comment was not gender-related and that the comment was not severe or pervasive enough to satisfy the second Lehmann prong. The judge also found that the comment was a single comment, which would not satisfy our holding in Cutler v. Dorn, 390 N.J. Super. 238 (App. Div. 2007) because it was not made directly to plaintiff. The judge further found that "[p]laintiff has failed to offer any evidence to substantiate [her] belief that others were treating [her] differently after filing the [EED] complaint. Plaintiff has failed to offer any admissible evidence that the statements were ever made and that these statements are simply inadmissible . . . hearsay."

The judge also granted summary judgment as to plaintiff's retaliation claim, concluding that she failed to prove she suffered an adverse employment action. He also concluded that the alleged retaliation was "so remote in time from [her] initial EED complaint in 2002 that as a matter of law, the [c]ourt cannot consider such to be retaliatory under Williams [v. Philadelphia Housing Authority Police Department, 380 F.3d 751 (3d Cir. 2004), cert. denied, 544 U.S. 961, 125 S. Ct. 1725, 161 L. Ed. 2d 602 (2005)]."

Thereafter, plaintiff retained new counsel, who filed a motion for reconsideration or relief from a judgment or order based on the "excusable neglect" of plaintiff's former counsel, whose certification indicated that he suffered from a psychiatric condition, which prevented him from properly opposing the summary judgment motion. Plaintiff also submitted a response to defendant's statement of material facts, a counter-statement of material facts, Wasner's and Levin's deposition transcripts and the EED investigation reports. Without commentary, the judge denied the motions. This appeal followed.

While this appeal was pending, our Supreme Court reversed Cutler. Thus, we temporarily remanded for the motion judge's consideration of that decision. In a written opinion, the judge emphasized that because plaintiff had failed to file a counter-statement of material facts in opposition to defendants' summary judgment motion, he deemed defendants' facts admitted and would not repeat the facts on which he relied in granting summary judgment. He found that plaintiff had no hostile work environment claim based on the "psycho-bitch" comment because it was a single comment not made at or in her presence. He concluded that:

[T]he factual situation in the instant case stands in marked contrast to that presented to the Supreme Court in Cutler. In Cutler, the plaintiff was subjected to numerous derogatory, insulting statements about people of plaintiff's ethnicity and ancestry. Those comments stereotyped people of plaintiff's ancestry. And they were uttered at, or in the presence of the plaintiff.

We use the same standard as the trial court when reviewing a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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 as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29 (1995). "Genuine" issue of fact means "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If there is no genuine issue of fact, we must then decide whether the lower court's ruling on the law was correct. Prudential, supra, 307 N.J. Super. at 167.

Applying these standards, we conclude that summary judgment was improperly granted as to plaintiff's hostile work environment claim, particularly given the Supreme Court's clarification of the law in its subsequent opinion in Cutler. First, viewing the evidence in a light most favorable to plaintiff, a reasonable jury could conclude that the word "bitch," in the context Conway used it to refer to plaintiff, is gender-related. Among other definitions, the word "bitch" is defined as "a malicious, spiteful, or domineering woman - sometimes used as a generalized term of abuse." Merriam Webster's Collegiate Dictionary, 117 (10th Ed. 1997). The word "bitch" "clearly and objectively has gender-specific connotations . . . the use of [which] can create a hostile work environment[.]" Bailey v. Henderson, 94 F. Supp. 2d 68, 75 (D.D.C. 2000). See also Huffman v. City of Prairie Village, 980 F. Supp. 1192, 1201 (D. Kan. 1997) ("Sexual epithets that a woman is a . . . 'bitch' [is] capable of making the workplace unbearable for the woman verbally so harassed, and since these are accusations based on the fact that she's a woman, they can constitute a form of sexual harassment.") Further, if there are several reasonable inferences that can be drawn from the facts, and one of them would support the conclusion that the word "bitch" created a hostile work environment, then summary judgment is inappropriate. See Costa v. Desert Palace, Inc., 299 F.3d 838, 861-62 (9th Cir. 2002) (it is for a jury to determine whether the term "bitch" is part of the everyday give-and-take or is a derogatory term indicating sex-based hostility), aff'd, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003).

Second, "[c]ircumstances can give rise to an actionable hostile work environment claim even where the plaintiff was not the 'target' of the offensive or harassing conduct." Cutler, supra, 196 N.J. at 433 (citing Lehmann, supra, 132 N.J. at 611). See also Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999) (offensive comments need not be directed at a plaintiff); Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) ("[t]he mere fact that [the plaintiff] was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim"); Perry v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir. 1997) (the fact that a plaintiff learns second-hand of sexual harassment by a fellow employee or supervisor also can impact the work environment). Accordingly, it is irrelevant that Conway did not make the "psycho-bitch" comment directly to plaintiff. She has an actionable hostile work environment claim based on the comment if she can prove that it created such an environment that affected her. Viewing the evidence in a light most favorable to plaintiff, a reasonable jury could reach that conclusion.

Lastly, plaintiff does not allege that a single comment created a hostile work environment. She alleges, and her evidence indicates, that Conway repeatedly called her a "psycho-bitch" in the presence of other employees, including her supervisors, and that these employees harassed, ridiculed and ignored her. A reasonable jury could conclude from this evidence that the "psycho-bitch" comments, along with other evidence of gender-related discriminatory treatment, polluted plaintiff's work environment and made it hostile.

Summary judgment was also improperly granted as to plaintiff's retaliation claim. The anti-retaliation section of the LAD provides that

[i]t shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

. . . .

d. For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this [A]ct or because that person has filed a complaint, testified or assisted in any proceeding under this [A]ct 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 by this [A]ct.

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

To establish a prima facie claim for retaliation under the LAD, plaintiff must demonstrate that: (1) 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. Young v. Hobart West Group, 385 N.J. Super. 448, 465 (App. Div. 2005) (citing Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995)). Also, "in a case in which a plaintiff alleges retaliation under the LAD, N.J.S.A. 10:5-12d, the plaintiff bears the burden of proving that his or her original complaint--the one that allegedly triggered his or her employer's retaliation--was made reasonably and in good faith." Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 373 (2007).

"Retaliatory action" is defined as "'the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.'" Nardello v. Township plaintiff Voorhees, 377 N.J. Super. 428, 433 (App. Div. 2005) (quoting N.J.S.A. 39:19-2e). "As such, 'employer actions that fall short of [discharge, suspension or demotion], may nonetheless be the equivalent of an adverse action.'" Id. at 433-434 (quoting Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), aff'd, 362 N.J. Super. 245 (App. Div.), certif. denied, 178 N.J. 32 (2003)). See also Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002) (assignment to different or less desirable tasks may constitute adverse employment action and establish prima facie case of retaliation), aff'd as modified, 179 N.J. 425 (2004). Further, "many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct" may constitute an adverse employment action. Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003).

Here, the judge did not specifically state that plaintiff failed to act reasonably and in good faith or that she was not engaged in protected activity. Rather, he concluded that she suffered no adverse employment action and that the retaliation was too remote to her initial EED complaint submitted in 2002. However, viewing the evidence in a light most favorable to plaintiff, a reasonable jury could conclude that from 2002 to 2004, she was subjected to numerous acts of retaliation because she had filed EED complaints, and that these acts constitute an adverse employment action.

Further, we reject the judge's reliance on Williams, supra, that the retaliation was too remote. In Romano v. Brown & Williamson Tobacco, 284 N.J. Super. 543, 550 (App. Div. 1995), we concluded that the plaintiff had established a causal connection between the protected activity and the adverse employment action even though ten years had passed. We found that there exists "no case that stands for the proposition that proximity is the only circumstance that justifies an inference of causal connection." Ibid.

Vacated and remanded for trial.

 

As discussed infra, Cutler v. Dorn was subsequently reversed at 196 N.J. 419 (2008).

Because plaintiff submitted these documents in support of her motions, we reject defendant's contention that they were not part of the record below and cannot be considered on appeal. R. 2:5-4.

(continued)

(continued)

17

A-1336-07T3

June 18, 2009