INTESAR ALBIATY v. L'OREAL USA PRODUCTS, INC and WAYNE BUCKLEY

(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NOT FOR PUBLICATION WITHOUT THE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-1621-07T31621-07T3

INTESAR ALBIATY,

Plaintiff-Appellant,

v.

L'OREAL USA PRODUCTS, INC.,

and WAYNE BUCKLEY,

Defendants-Respondents.

________________________________________________________________

 

Submitted March 23, 2009 - Decided

Before Judges Carchman and Sabatino.

On appeal from the Superior Court of

New Jersey, Law Division, Morris

County, Docket No. L-2650-04.

Intesar Albiaty, appellant, pro se.

Fisher & Phillips, attorneys for

respondents (Alan G. Lesnewich, of

counsel; Mr. Lesnewich and Jason A.

Storipan, on the brief).

PER CURIAM

Plaintiff Intesar Albiaty appeals from an order of the Law Division granting summary judgment to defendants L'Oreal USA Products, Inc. (L'Oreal) and Wayne Buckley and dismissing plaintiff's complaint. In a written opinion, Judge Smith concluded that plaintiff failed to establish a prima facie case of discrimination. Plaintiff appeals, and we affirm.

These are the facts presented to the judge on the motion for summary judgment. Intesar Albiaty is a self-described "Arab-American individual of Iraqi national origin" who was employed by L'Oreal from March 20, 2001 to October 4, 2002. She was hired as a Supervisor in the Treatment Bulk Laboratory wherein her responsibilities included the "day to day testing of all products manufactured in the Treatment unit of production." Plaintiff reported to an Assistant Vice President, Buckley.

Sometime after September 11, 2001, plaintiff claims Buckley "interrogated plaintiff about her family in Iraq, who she had not seen since July 1979." During this meeting, Buckley called plaintiff into his office where two other employees, Adrian Ertol and Debbie Green, were present. Buckley asked her where she was born and where was she from. Plaintiff replied that she was born in Iraq but that half of her family is Turkish. Buckley asked how she came to be in Iraq, and plaintiff replied that her "great, great grandfather was a governor in Mosel in northern Iraq. That is like 300 years ago and because Turkey dominated Iraq." Buckley then asked when she last saw her family, and she replied "in 1979." Plaintiff also explained that she had not received any letters from her family in Iraq for "many, many, many years," she had not spoken to her family on the phone because her brother was tortured in prison when the Iraqis found out his sister was American.

During her deposition, plaintiff was asked about her impressions of this conversation:

Q: So that conversation took place in his [Buckley's] office?
 
A: In his office.

 
Q: Was that polite conversation, cordial conversation? Was he raising his voice or anything like that?
 
A: No. He was very attentive to my answers.
 
Q: Was he polite?
 
A: He was just asking the questions. He was not jumping on me or - he just asking how many brothers, when the last letter came, when the last phone conversation, how your family are.

Q: And how was his tone of voice?
 
A: If you see Wayne, you know how his tone. He's very prominent voice.
 
Q: Was it his normal tone of voice.
 
A: It was a voice when he wants an answer.
 
Q: Did he appear interested in what you were saying?
 
A: Yes. Oh, yes. Very attentive.
 
Q: Very?
 
A: Very attentive but did he not shout [sic] at me or anything, but he ask, he was very focused, if you know Wayne, you know. When he wants to pay attention to whatever is said, he has the ability to just, you know, very strained and then he was very interested.
 
Q: Okay. But he was cordial? Do you know what that means?
 
A: No.

Q: Was he business-like and calm? He wasn't yelling at you?
 
A: No.
 
Q: Was it like you and I are talking right now?
 
A: But what - it was striking at that time was he was pausing and pausing and he wants to know, you know, I know Wayne when he wants to know something. He was very attentive and I find it why would he be attentive. It is different, let's sit down and see where are your family. It was a questioning. And when I left I thought the FBI told him to question me. It was questioning rather than making conversation.
 
Q: Were there a lot of people talking about the anthrax issue and things like that at that time?
 
A: I don't know. I don't know.
 
Q: Were you upset by Mr. Buckley at that time?
 
A: At that time I was upset in term[s] of why he would question me.
 
Q: You wondered why he was questioning you?
 
A: Yes. And I thought because this is 9/11 and I am a chemist and I am, you know, with my background Iraqi, maybe the FBI ask him and that's fine because this is how you serve your country. I mean, I am very forward in this, if anything to help anything, then it would be fine, in my mind I rational this that's the FBI asking him. That's fine. There is nothing to hide and subject is closed with me.
 
Q: Did you ask him why you were asking him questions?
 
A: No. No. No.

Q: Did you find his questions to be offensive in anyway?
 
A: It is different when where are you from then how many brothers, and when the last letter came, when the last phone calls, it's different. It's different when somebody tell you - I always because of my accent people ask you where are you from. I'm from Iraq. That's it and people don't say anything else.
 
Q: But my question is simply did you find his questions to be offensive?

A: Yes. Because that kind of very very [sic] strict and very directed.
 
Q: They were strict and directed?
 
A: Yes.
 
Q: After that conversation did you go to anybody and tell them Mr. Buckley had asked you these questions?
 
A: No. No.

Q: Did you go to HR and complain that he had asked these questions?
 
A: No.
 
Q: Why not?
 
A: Because I'm serving the country, in my mind, even this offensive, it its very strange we never had any exchange about where are you from or this. So it is all of a sudden it came and in my mind this is how to do my duty, I honestly believed even though the question was improper and this is all about, you know, nobody can ask you where are you from about all discrimination and all harassment and all national origin should be - shouldn't be addressed. But his questioning was so direct, honestly I really thought the FBI told him to question me. And it's my duty to answer because there is nothing - there is nothing to be afraid of. This is 9/11, people get killed. You got to do whatever it takes.
 
Q: So it was okay Mr. Buckley was asking you those questions?

 
A: Thinking that the FBI [sic].
 
Q: But at the time he was asking you the questions you though it was okay for him to ask you the questions?
 
A: At that time after 9/11 and the kind of questioning that is directed and specific, I really thought it was okay for the FBI to ask him to ask me the question.

Q: That is why you didn't go to somebody and complain?
 
A: Absolutely not.
 
Q: After that conversation did he have any other questions with you or conversations with you where he asked you questions about your family or where you were from or anything?
 
A: That's it.
 
Q: Just that one conversation?
 
A: Just one conversation.
 
Q: Never came up again?
 
A: No.

L'Oreal has an "Equal Employment Opportunity Policy," which states:

Any employee who believes that he or she has been the subject of unlawful harassment should report the matter immediately to his or her supervisor or Human Resources representative. The Company is committed to make every effort to insure that complaints of unlawful harassment are resolved promptly and effectively. No employee will suffer adverse employment action as a result of reporting conduct that is unlawful harassment. Any employee who is found to have engaged in unlawful harassment will be subject to appropriate discipline, including discharge.

Plaintiff received this policy, read it and never used the complaint mechanism provided in the L'Oreal policy. Plaintiff also conceded that at no point while she worked for L'Oreal did any employees "make any derogatory comments or offensive comments that [she] perceived to be offensive, about [her] national origin, religion, race or age."

Later in 2001, as a result of her performance, L'Oreal promoted plaintiff to position of Manager of the Bulk Laboratory, effective January 1, 2002. On December 28, 2001, plaintiff claimed she was called into the office of the Manager of the Bulk Laboratory, Donald Silsby, where Silsby stated that he was the one who recommended plaintiff for the promotion because of the great job she had done in audits. Silsby was plaintiff's predecessor as manager, and he was moved to a different group during a restructuring process. This was seen as a lateral move for Silsby and not a promotion or demotion. Buckley requested plaintiff to keep her promotion private until Silsby could be transferred from his current position to his new position. However, contrary to defendant's wishes, on February 27, 2002, plaintiff announced her promotion to her subordinates via email. Buckley and Gabrielle Gillespie met with plaintiff to discuss her insubordination and reiterate that she should have waited before announcing her promotion.

Following plaintiff's promotion, she began having performance issues, and Buckley received complaints about plaintiff from other employees. One employee complained that while the employee was investigating a product that had been reworked without authorization, plaintiff "immediately got defensive and started screaming to the point at which she threw the Vinefit Cr me batch record at [the employee] intentionally."

Plaintiff missed a Corporate Industrial Chemistry (CIC) meeting on September 13, 2002, with the new vice-president of CIC. Buckley then met with plaintiff to discuss her absence.

After the Monday morning production meeting, I asked [plaintiff] to come to my office. My plan was to discuss her failure in not attending the CIC meeting. At that meeting I tried to explain to Intesar the importance of attending meetings when I ask her. She said she was busy and didn't have time. I told her I was her Supervisor and when I ask her to attend a Corporate meeting she should attend or at least call me and tell me why. She indicated she wrote an email. I told her that I was at the meeting since 8:30 AM for the QA portion of the CIC meeting and did not read any emails. Secondly, I told her I told Jim to get you to and to tell you to go to the meeting at 10:45 AM. She said that she knew the meeting started at 10:00 AM and that she didn't want to walk in late. I then told her the meetings ran late and that if she came to the conference room, as I asked, she would know that.
 
Then, she indicated, "why should she go." After all she passed on data from her lab to Don Silsby and others and she would have nothing to present. I then told her, I was the only one presenting or handling [sic] out data, but I wanted all my Managers there to openly discuss issues and learn more about Eric Wolff and the DGT "thinking" in general. I told her she missed a "golden" opportunity to learn about how Loreal works.
 
Also, I told her that she does not decide when and if she attends a meeting and that we are a team and work together. Don, just tabulated the data from all the labs and helped me prepare the IC presentation. She then told me she didn't know the meeting started late and that it was that important for her to attend. I then reminded her of the two pre-meetings I had with my staff and how I told them to be there and how important it was to all of us.
 
The discussion lasted for about 30 minutes, during that time we discussed what I want from her and how she is to be part of the team. I told her, I wanted her to attend meetings when I ask and spend more time in my office. She would always, drop things off late at night or when I was not around. I told her I wanted to hear from her and know what is going on in her area. I didn't want to hear things second hand, but from her. I also told her, what she did was insubordate [sic] for not showing up at the meeting, after I personally called and asked her to be there, and that I would write a letter for her file indicating this.
 
In conclusion, we agreed that we have had issues in the past and that we would work better together. I then told her, I would not write a letter this time but, please attend meetings. Intesar's history is to not attend meetings if she does not feel like it or is having a disagreement with someone at the meeting. In the past 3-4 months, she was not [sic] attended 4-5 meetings. I reminded her of that and asked her to work on that problem. When she left my office, I though we make [sic] progress and that we were on the right road to a better relationship.
 

In May 2002, plaintiff then took two unplanned and unapproved vacation days. Vacation days at L'Oreal are pre-approved, paid days off. Later that year, on October 1, 2002, plaintiff left work early because her husband was sick. Plaintiff informed Buckley's assistant, Christiane Opitz, that she would return to work that day, but she never did. As a result of her absence, plaintiff missed two meetings that afternoon. Plaintiff did not return on October 2, 2002. She called Opitz, left a message stating that she needed more time with her husband and to take this from her vacation days.

After hearing about the unplanned vacation days on October 1 and October 2, 2002, Buckley called a meeting with Plant Manager Laurent Verhaeghe and Gabrielle Gillespie, Director of Human Resources to discuss a plan of action. On October 2, 2002 Buckley, Verhaeghe and Gillespie called plaintiff's home, but there was no answer. They then sent a telegram to plaintiff's home on the same day stating that plaintiff should report to work on Thursday, October 3, 2002, at 10:00 A.M. to meet with Gillespie and Buckley; however, when the telegram arrived, defendant "received a phone call from the deliver[y] person stating that no one was home and should he leave the letter; [they] responded 'yes'".

On October 3, 2002, plaintiff again called Opitz early in the morning and left a message stating "she will be out on Thursday, October 3, and Friday, October 4, and would return back to work on Monday. She also stated that she sent an email to Wayne Buckley and Gabrielle Gillespie regarding this matter." Plaintiff was aware of L'Oreal's policy to have vacation days approved in advance by her supervisor, and plaintiff further did not inform defendants if her absence might be covered by the Family Medical Leave Act. Buckley then concluded this to be "job abandonment" and that "she [was] deemed to have voluntarily quit."

Based on plaintiff's failure to attend the October 3, 2002 meeting, Gillespie terminated plaintiff via letter on the same day. The letter stated:

Dear Intesar:

Carmela Winter sent you a telegram dated October 2, 2002, requesting your attendance at a meeting scheduled for 10:00am [sic] with Wayne Buckley and myself. You failed to report to work. In addition, your communication regarding using vacation for Wednesday, October 2nd, Thursday, October 3rd, and Friday, October 4th was not authorized nor approved. Your failure to return to work as directed is abandonment of your job and we accept your voluntary resignation. Your employment with L'Oreal USA is terminated effective Friday, October 4, 2002.

Plaintiff retained counsel who sent a letter to L'Oreal regarding his client's termination. Plaintiff then retained a different attorney who filed a three-count complaint on behalf of plaintiff against defendants. Plaintiff alleged discrimination based on race and national origin in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (NJLAD), harassment because of race and national origin, and aiding and abetting by Buckley.

Following the filing of the complaint, the parties engaged in discovery, a process that, because of plaintiff's refusal to comply with discovery procedures, proved to be arduous. Defendants served plaintiff with a timely notice of deposition and First Request for Production of Documents and First Set of Interrogatories. Plaintiff responded by filing a substitution of attorney and proceeding pro se, although plaintiff advised defendants that she searching for a new attorney.

Five months after service of the deposition notice and after two extensions of time for discovery, plaintiff advised defendants that she was "conducting an investigation about all the circumstances and the details of this alleged deposition that you are mentioning." After receiving proposed dates for the deposition, plaintiff responded by stating that because the deposition notice was served on an attorney who no longer represented her, that the notice was "invalid" and that she had already given her complete deposition on March 17, 2005, at a mediation.

Despite her noncompliance with defendants' discovery demands, plaintiff filed a motion for defendants to comply with her discovery demand and attending deposition. Discovery was again extended, and plaintiff was ordered to appear for depositions. The judge also ordered defendants' deposition; however, plaintiff never served defendants with this order, and defendants only became aware of this order through discussion with the Court Clerk. Plaintiff, thereafter, contacted defendants claiming that she was unaware of court orders regarding discovery and demanded to be deposed that day.

Defendants then moved to dismiss plaintiff's complaint pursuant to Rule 4:23-5(a). The judge dismissed the complaint without prejudice for failure to comply with discovery.

In November 2006, plaintiff substituted counsel to represent her. She then successfully moved to vacate the dismissal and, despite the absence of her deposition, she moved to amend her complaint to assert a gender discrimination claim and to also compel discovery. The motions were denied with the judge noting that discovery had ended three months earlier, and a trial date had been scheduled. The judge added that the "[p]roposed amendment is time barred and does not relate back to original cause of action but alleges a new cause of action." Plaintiff again refused to appear for her deposition and defendants moved to compel her deposition or dismiss the complaint. Plaintiff moved before us for leave to appeal the judge's denial of her motion to amend, and we denied the motion. The judge then again adjourned the trial date, and plaintiff served defendants with deposition notices for twenty-eight individuals and extensive document production. The judge signed yet another order compelling the deposition of plaintiff.

Discovery continued with defendants complying with discovery demands, and plaintiff avoiding her deposition. Finally, in August 2007, twenty months after being served with a notice, plaintiff appeared for her deposition. Defendants then moved for summary judgment. The motion was granted, and this appeal followed.

On appeal, plaintiff asserts that defendants failed to establish a basis for concluding that plaintiff abandoned her job, plaintiff's termination was based on discrimination, and the judge erred in granting summary judgment. In addition, in her various submissions, plaintiff asserts that the motion judge erred in refusing to impose sanctions on defendants for various discovery abuses.

We first address the standard of review on an appeal from the granting of a motion for summary judgment. Summary judgment must 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 of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Our inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (internal quotations omitted). See also Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). "At this stage of the proceedings, the competent evidential materials must be viewed in the light most favorable to plaintiff, the non-moving party, and [she] is entitled to the benefit of all favorable inferences in support of [her] claim." Bagnana v. Wolfinger, 385 N.J. Super. 1, 8 (App. Div. 2006) (citing R. 4:46-2(c); Brill, supra, 142 N.J. at 540). See also In re Estate of Sasson, 387 N.J. Super. 459, 462-63 (App. Div.), certif. denied, 189 N.J. 103 (2006).

We apply the same standard as the trial court in reviewing the granting of a motion for summary judgment, EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008) and we review the lower court's decision de novo. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). If then there is no genuine issue of material fact, we must determine "whether the trial court correctly interpreted the law." Massachi v. AHL Services, Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential, supra, 307 N.J. Super. at 167), certif. denied, 195 N.J. 419 (2008).

Applying these principles here, we conclude that the motion judge correctly granted summary judgment. In his opinion, he found:

In the instant matter, the plaintiff has not made out a prima facie case for discrimination. She has provided no evidence, no cite to the record, no case law, in short, nothing that even hints of a discriminatory, harassing or hostile intent in the actions by defendants. Indeed, the defendants were so please[d] with her work they promoted her after September 11, 2001[,] and did not terminate her until more than a year had passed. To support her claims a plaintiff cannot rely solely on mere feelings and conclusory thoughts but must instead present credible evidence. The plaintiff has failed to do so. Plaintiff is an employee at will and can be fired for any reason or no reason as long as it is not discriminatory.
 
The defendants have come forth with ample evidence to carry their burden as to a legitimate, non-discriminatory reason for discharging the plaintiff. There is sufficient documentation of the plaintiff's alleged misconduct to rebut any presumption of discrimination. The plaintiff simply does not present any evidence to overcome her burden to prove that the defendant[s'] stated reason for discharging her was pretextual in nature.
 
And finally, assuming arguendo, that defendant Buckley acted toward plaintiff in a discriminatory fashion, he cannot be held individually liable for discrimination in the work place unless he aided and abetted others in discriminatory practices against the plaintiff, Tarr v. Ciasulli, 181 N.J. 70[, 83 [(2004)].

Plaintiff, citing no case law, argues that she did not abandon her job, that she was discriminated against and that defendants presented no evidence of plaintiff's misconduct to merit her dismissal. Defendants contend that there is no evidence in the record demonstrating that plaintiff was discriminated against based on her race or national origin, that there was a hostile work environment and that Buckley was responsible for firing plaintiff.

The New Jersey Supreme Court in Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 83 (1978), adopted the burden-shifting test articulated by the United States Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973). In an employment discrimination case, the Court explored the elements necessary to establish a prima facie case of discrimination under the NJLAD. Plaintiff must prove by a "fair preponderance of the evidence that plaintiff (1) belongs to a protected class, (2) was performing in the position from which she was terminated, (3) nevertheless was fired, and (4) the employer sought someone to perform the same work after she left." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 457-58 (2005). See also El-Sioufi v. St. Peter's University Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005).

"Establishment of a prima facie case gives rise to a presumption that the employer unlawfully discriminated against the employee." Bergen Commer. Bank v. Sisler, 157 N.J. 188, 210 (1999). "The employer then must come forward with evidence of a non-discriminatory reason for the adverse action, and, if it does so, the burden shifts back to the plaintiff to prove, by a preponderance of the evidence, that the claimed reason was a pretext for [national origin] discrimination." Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 482 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009). Further, "[a]lthough the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination." Bergen Commer. Bank, supra, 157 N.J. at 211.

Here, the only suggestion of any possible discrimination plaintiff suffered was that after September 11, 2001, and following an "anthrax scare," Buckley "interrogated plaintiff about her family in Iraq, who she had not seen since July 1979." However, plaintiff received a copy of the Equal Employment Opportunity policy with the guidelines for filing a complaint, she was familiar with this policy and she never complained of any conduct related to the inquiry by Buckley. At no point while she worked for L'Oreal did any employees "make any derogatory comments or offensive comments that [she] perceived to be offensive, about [her] national origin, religion, race or age."

Other than the conversation following September 11, 2001, the record is completely barren of anything to support a prima facie case of discrimination. In fact, defendants promoted plaintiff to position of Manager of the Bulk Laboratory. Standing alone and without more, the Buckley conversation cannot sustain plaintiff's burden of establishing a prima facie case of discrimination. See, e.g., Taylor v. Metzger, 152 N.J. 490, 500 (1998) (noting that "[u]sually[,] repeated racial slurs must form the basis for finding that a hostile work environment has been created"); El-Sioufi, supra, 382 N.J. Super. at 172 (finding that a single statement about plaintiff's status as a Muslim did not "support a subsequent discrimination complaint"); Prado v. State, Dept. of Labor, 376 N.J. Super. 231, 244-45 (App. Div. 2005) (finding that one incident of ethnically and sexually offensive language was insufficient to support a discrimination claim), rev'd on other grounds, 186 N.J. 413, 429 (2006); Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 72-73 (App. Div. 2004) (finding that two remarks about plaintiff's Jewish identity, even if true "do not rise to the level of the severe and pervasive conduct required to established a cause of action for hostile work environment under the LAD"), certif. denied, 183 N.J. 214; but see Cutter v. Dorn, 196 N.J. 419 (2007).

Equally as important, however, as the motion judge concluded, even if defendant could present a prima facie case of discrimination, defendants proffered a non-discriminatory reason for dismissing plaintiff. For example, defendants cited the May 6, 2002 incident where another employee complained that, while investigating a product that had been reworked without authorization, plaintiff "immediately got defensive and started screaming to the point at which she threw the Vinefit Cr me batch record at [the employee] intentionally." Then on September 13, 2002, plaintiff missed a CIC meeting with the new Vice-president of CIC. During the meeting, Buckley sent someone to contact plaintiff and inform her to come to the meeting; plaintiff failed to attend the meeting. When Buckley met with plaintiff about her absence, she responded "why should she go[?]" In May 2002, plaintiff took two unapproved vacation days. Finally, on October 1, 2002, plaintiff left work early because her husband was sick. She did not return to work on October 1, October 2 or October 3 and advised (without authorization) that she would use these as her vacation days. During her absence on October 1, 2002, she missed two meetings.

This litany of acts following plaintiff's promotion established defendants' non-discriminatory reasons to dismiss plaintiff. We conclude that the motion judge appropriately granted summary judgment and dismissed plaintiff's claim of improper dismissal.

Plaintiff's hostile work environment claim was also properly dismissed. To establish a hostile work environment, plaintiff must:

demonstrate that the defendant's conduct (1) would not have occurred but for the employee's [race, ethnicity or sex]; and [the conduct] was (2) severe or pervasive enough to make a (3) reasonable [person of that race, ethnicity or sex] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.
 
[Prado, supra, 376 N.J. Super. at 244 (quoting Taylor, supra, 152 N.J. at 498-502 (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993))) (internal quotations omitted).]

The record fails to support a claim of hostile work environment. In fact, plaintiff admitted that at no point while she worked for L'Oreal did any employees "make any derogatory comments or offensive comments that [she] perceived to be offensive, about [her] national origin, religion, race or age." Further, plaintiff admits that she knew about the complaint procedure and did not pursue any type of complaint as a result of any alleged discrimination. There was no basis for her claim of hostile work environment.

Lastly, plaintiff asserts that Buckley "aided and abetted the hostile work environment created because of Plaintiff's race and national origin, in violation of the New Jersey Law Against Discrimination." This claim fails as well.

In order to hold an employee liable as an aider or abettor, a plaintiff must show that "'(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.'"
 
[Cicchetti v. Morris County Sheriff's Office, 194 N.J. 563, 594 (2008) (quoting Tarr v. Ciasulli, 181 N.J. 70, 84 (2004) (quoting Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999))).]

The factors the court must use to assess whether a defendant provides "substantial assistance" are:

(1) the nature of the act encouraged, (2) the amount of assistance given by the supervisor, (3) whether the supervisor was present at the time of the asserted harassment, (4) the supervisor's relations to the others, and (5) the state of mind of the supervisor.
 
[Tarr, supra, 181 N.J. at 84.]

Plaintiff failed to demonstrate any wrongful act on the part of L'Oreal. There was nothing for Buckley to aid or abet. This claim is without merit.

Finally, as to plaintiff's claims regarding sanctions for discovery violations as well as her assertions about abuse of the legal process, her claims are likewise without merit. R. 2:11-3(e)(1)(E). We do note that she was uncooperative in complying with discovery demands, especially her deposition, and we perceive that there is no need for more expansive review of these claims.

Affirmed.

 

During the ensuing months, plaintiff was represented by counsel for brief periods of time.

We have excluded from our recitation of the procedural history, a number of motions and other proceedings that are not relevant to our resolution of this appeal.

We paraphrase plaintiff's more expansive description of the alleged error.

(continued)

(continued)

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A-1621-07T3

June 5, 2009