STACY WILSON-SMITH v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3499-07T23499-07T2

STACY WILSON-SMITH,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS, SOUTHWOOD STATE

PRISON, SUPERINTENDENT

KATHRYN E. MCFARLAND, LT. CLAY

PETIT, CAPTAIN HARRY CHANCE,

CHIEF VINCENT SANDERS and ASST.

SUPERINTENDENT KAREN BILICKI,

Defendants-Respondents.

______________________________________________

 

Submitted March 18, 2009 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-10946-05.

Allan E. Richardson, LLC, attorney for appellant (Charles B. Austermuhl, on the brief).

Anne Milgram, Attorney General, attorneys for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Noreen P. Kemether, Deputy Attorney General, on the brief).

PER CURIAM

In this appeal, after closely examining plaintiff's factual allegations in the light most favorable to plaintiff, we conclude that the trial judge properly granted summary judgment dismissing plaintiff's statutory claims against her employer and the other named defendants.

Plaintiff, a corrections officer, commenced this action on December 15, 2005, alleging violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, the Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, and the Federal Family and Medical Leave Act (FMLA), 29 U.S.C.A. 2601 to 2654, as well as violations of the due process rights guaranteed by the federal and state constitutions. Judge Louis R. Meloni granted summary judgment in favor of defendants.

Plaintiff has appealed from that final order, arguing that her statutory claims should have survived summary judgment. We find insufficient merit in plaintiff's arguments regarding the claims based on CEPA, FMLA, the Civil Service Act and federal and state due process principles to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We also find no merit in plaintiff's arguments concerning her LAD claim for the following reasons.

In reviewing the order in question, we apply the familiar standards that apply when the summary judgment procedure is invoked. 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 or order as a matter of law." R. 4:46-2. The court must not decide issues of fact; it must only determine whether material factual issues exist. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); R. 4:46-5. Applying the same standard utilized in the trial court, in reviewing a summary judgment we consider whether there is a genuine issue of material fact and, if not, whether the trial court's ruling on the law was correct. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).

The record, viewed in the light most favorable to plaintiff, reveals that she was a sergeant with the Department of Corrections (DOC), assigned to South Woods State Prison. At the time this action was commenced, plaintiff had been employed by the State for twenty-three years. She retired in 2007, after this suit was commenced.

As a "custody staff member," plaintiff was required to wear an authorized protective vest. This regulation was established after a corrections officer was fatally stabbed by an inmate in 1997. A DOC regulation declared that "[s]hould it be determined that a custody staff member has reported to work without his/her undergarment protective vest, the custody staff member shall be relieved from duty immediately and placed into no pay status," and "shall be subject to disciplinary action."

The DOC contracts with private manufacturers to supply protective vests. Between 1997 and 2007, plaintiff, who described herself as overweight, was fitted at least eighteen times by at least three different distributors. As part of a "vest sampling" committee, she was fitted for and provided with three additional vests during a forty-five day period in 2001. Plaintiff asserted that none of those vests fit properly, and, as a result, did not wear a vest at work.

After a vest inspection in August 2005, plaintiff was called to the office of Captain Chance, who "offered [plaintiff] an ultimatum" -- plaintiff would have to wear a vest "or go home and sit and not get paid, and disciplinary insubordination and disciplinary charges would be forthcoming." For the rest of the day, plaintiff wore one of the vests provided by Captain Chance at that time and was later sent to a vendor for yet another fitting. She wore the loaner vest for a few more days then complained it was causing her pain.

In November 2005 plaintiff was re-fitted again, but claimed this vest was also uncomfortable. On November 16 and 17, 2005 plaintiff refused to wear a vest at work and was sent home on no-pay status. She returned to work a few days later wearing a loaner vest, and was subsequently provided with a vest referred to as "the GI Jane vest."

On January 5, 2006, plaintiff submitted a note from a physician advising that she should not wear the standard protective vest issued to all employees; the note stated that plaintiff "should wear a form fitted, female vest that doesn't weigh more than 3 lbs -- this is medically necessary." The DOC sent the doctor a letter informing him that they had a vest weighing approximately eight pounds and in four weeks they should have one weighing approximately four pounds. The doctor responded that the four-pound vest would be appropriate.

When the DOC received the doctor's note, plaintiff's no-pay status was changed to medical leave. A letter informed plaintiff that she "may use [her] earned sick time and [] may be eligible to receive temporary disability from New Jersey Department of Labor." After plaintiff's earned sick leave was exhausted, she was placed on unpaid FMLA medical leave. She remained on leave for approximately two months, until March 8, 2006, when she received a "custom made lighter vest that had been ordered for her." Plaintiff returned to work, using this new vest. Plaintiff argues in the brief she filed in this court that this "lighter vest . . . did not fit," but that she "chose to wear" it "rather than not work . . . because [she] was the primary support for her family."

The LAD makes it an unlawful employment practice for an employer to "discriminate against [an] individual in compensation or in terms, conditions or privileges of employment" based on classifications such as race, creed, sex, and gender. N.J.S.A. 10:5-12(a). The LAD also renders discriminatory any "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 . . . ." N.J.S.A. 10:5-12(d).

The analysis of an LAD claim must begin with the McDonnell Douglas framework. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). This framework requires that the employee must first demonstrate a prima facie case of a discriminatory action taken by the employer. Once this prima facie showing is established, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. at 449. If a legitimate reason for the action has been proffered, the employee is afforded the opportunity to show that a discriminatory intent, and not the reason offered by the employer, motivated the employer's actions. Ibid. To establish a prima facie case of discriminatory action under the LAD, an employee must show (1) membership in a protected group; (2) performance of the job at a level that met the employer's legitimate expectations; (3) the employer took action adverse to the employee's interests; and (4) the employer sought someone to perform the work after the employee departed. Id. at 450. It is the court that determines whether this prima facie case has been established. Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 125 (2008); Zive, supra, 182 N.J. at 457.

The trial judge correctly observed that "the parties agree that the plaintiff here is a member of a protected class." The judge found, however, that plaintiff failed to meet the DOC's legitimate expectations at the times relevant to the complaint because she continuously failed to comply with the DOC's uniform requirement. And, as for whether plaintiff demonstrated that adverse employment action had been taken, Judge Meloni concluded:

[T]here is no adverse employment action, other than the result of the plaintiff[']s failure to comply with the uniform directive. The State in enforcing this directive did require that she wear the uniform which included the protective vest. There is, in this Court's mind, a legitimate requirement for her own protection and the protection of other co-workers that work along with her, the custody staff.

The judge correctly found, after canvassing the record, that no one "was treated any differently from [plaintiff]; [wearing a vest] was a requirement of all custody staff."

We agree that plaintiff failed to present a prima facie case of discrimination or sufficient proof of retaliation, and that summary judgment was warranted. Viewed in the light most favorable to plaintiff, the record overwhelmingly demonstrates that the DOC did not discriminate or retaliate against plaintiff for asserting "a right" to a different vest, but instead repeatedly attempted to accommodate plaintiff, fitting her for vests on eighteen different occasions and even placing her in a vest study to provide more options.

We affirm for these reasons and substantially for the reasons set forth by Judge Meloni in his February 8, 2008 oral decision.

Affirmed.

According to plaintiff, the "GI Jane" vest had to be "worn on the outside of your [clothes]." She claims that as the only officer who wore such a vest in non-emergency situations, she was ridiculed by inmates and other corrections officers.

In support, plaintiff has referred us to three pages of her deposition; this testimony does not support plaintiff's contention that the last of the vests did not fit.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

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9

A-3499-07T2

April 1, 2009