cheryl m. goldie v. melissa jones

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6043-07T36043-07T3

cheryl m. goldie,

Plaintiff-Appellant,

v.

melissa jones and healthstar

advertising, inc.,

Defendants-Respondents.

____________________________

 

Argued May 26, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6296-05.

Mark C.G. Lawrence argued the cause for appellant (Forman & Cardonsky, attorneys; Mr. Lawrence, of counsel and on the briefs).

Howard A. Vex argued the cause for respondents (Courter, Kobert & Cohen, attorneys; Mr. Vex, of counsel and on the brief).

PER CURIAM

Plaintiff Cheryl M. Goldie appeals the July 25, 2008 award of summary judgment dismissing her complaint against defendants Melissa Jones and Healthstar Advertising, Inc. We affirm.

Plaintiff filed her complaint pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, on August 29, 2005. She alleged that she was wrongfully terminated by defendants because of a psychological disability, and that they "actively discriminated against her based on her status as a mentally disabled woman." The sole issue remaining when the summary judgment motion was decided was whether plaintiff had an actionable claim for retaliatory discharge. At that juncture, the parties had completed extensive discovery, including depositions.

Plaintiff was hired as a receptionist by defendant Healthstar's predecessor on January 6, 2003. Following a corporate merger in July 2003, plaintiff's job title was changed to "office assistant." Plaintiff's immediate supervisor was defendant Jones.

Prior to the incident that plaintiff asserts led to the unlawful termination, there were documented difficulties with plaintiff's employment, including excessive absences. For example, on June 20, 2003, Jones sent plaintiff a memo advising that since her date of hire in January 2003, plaintiff had been absent 11.75 days, and that until November 2003, any further leave days would be unpaid. The following year plaintiff used all of her paid leave by the month of July 2004. Jones and Patty Brock, Senior Vice President of Human Resources for defendant Healthstar, actually met with her regarding these absences.

On September 25, 2003, Jones rated plaintiff's job performance at an average of 4.25 out of 5 possible points and favorably described plaintiff's work. On January 13, 2004, when Jones conducted a second employee review, the rating dropped to four out of five. The comments were generally favorable, but Jones indicated that plaintiff needed improvement in certain areas and would be attending a seminar in February 2004 to "improve on her organizational skills and daily clerical functions."

On Tuesday, July 20, 2004, Noreen Gibbons, the office receptionist, and Jones invited plaintiff to lunch. During that luncheon, Gibbons and Jones probed plaintiff about her state of mind, asking, according to plaintiff's deposition, "if everything was okay." They told her that she had been "acting different lately" and "just not acting right." Plaintiff explained that a recently diagnosed physical illness may have caused differences in her behavior and asked if her job performance was being affected. Jones replied that plaintiff had not been fulfilling minor responsibilities around the office, including emptying the dishwasher and tidying the office kitchen.

Plaintiff had previously revealed to her co-workers various details about her difficult family life and past mental health issues. When the luncheon ended, Jones told plaintiff that she should enroll in therapy. Plaintiff reluctantly agreed, and also agreed to allow Jones to find her a therapist. Plaintiff claimed that she cried during the conversation, and finally assented to counseling only because she found the discussion so disturbing. Plaintiff acknowledged that Jones was attempting to help her, but also believed that the conversation should never have occurred as it was an intrusion into her personal affairs and was too upsetting.

The following day, plaintiff did not go to work because she wanted to avoid scheduling a therapy session with the support group that Jones had recommended. Later that day, Jones actually went to plaintiff's home, banging on the door and calling her name. Plaintiff did not answer.

On Thursday, July 22, plaintiff returned to work. Jones informed her that she had made an appointment for plaintiff with a support group. When plaintiff responded, "I don't want to do this," Jones turned and walked away. At noon, plaintiff went to Brock's office and showed her the appointment notes from Jones. She said that although she understood that Jones was trying to help her, she nonetheless wanted Jones to back off. Brock assured plaintiff that she had no obligation to enroll in counseling and scheduled a Friday morning meeting with plaintiff and Jones.

During the meeting, Jones told plaintiff that she would respect her privacy and no longer "interfere with [her] personal life." From that day forward, Jones kept notes of plaintiff's daily activities, thinking that Brock had instructed her to do so. When deposed, Brock later explained that she instructed Jones to take notes about only the Friday meeting, as she was concerned that several statements made by plaintiff at that time contradicted what she said during the one-on-one session the day before.

By Monday, July 26, plaintiff felt that Jones' attitude towards her had deteriorated, and the situation made her very uncomfortable. As a result, at the end of her work day, plaintiff spoke to the individual in Human Resources substituting for Brock, who was on vacation. Plaintiff told that person that she feared she would be fired when Brock returned. She was advised to just do her job as best as she could and give Jones time to adjust. Meanwhile, Jones learned of plaintiff's visit to Human Resources and contacted Brock, who told her that they would discuss the situation when she came back from vacation.

The following day, Jones told plaintiff that, henceforth, she was to obtain prior approval for overtime. According to Jones, permission had always been required for employee overtime, but plaintiff had recently worked late without authorization. That same day, when another employee knocked on Jones' office door, plaintiff said, "She's not there, she left already. You can never find her, she's never there."

On Friday, July 30, after three employees informed Jones that plaintiff had been looking for her, Jones called plaintiff into her office and asked her what she needed. Plaintiff said that Jones had been out to lunch for a long time, and told her she was "keeping notes." During that discussion, Jones told plaintiff that she should treat her with respect, as she was plaintiff's supervisor, and should not "keep tabs" on her. Ultimately, Jones asked plaintiff to leave her office and told her to wait until Brock returned if there was anything else that plaintiff needed to discuss. Jones' perception of plaintiff's increasing level of anger caused her to fear that plaintiff would "follow [her] home and hurt [her]" in some fashion.

In the year prior to plaintiff's termination, and prior to the July 20 luncheon, Jones had discussed plaintiff's job performance with Rich Levy, Healthstar's president, on several occasions. The first of these conversations occurred after plaintiff called a co-worker a "fagot" within earshot of other employees. Jones and Levy also discussed other incidents, such as when plaintiff asked the woman who watered the office plants out on a date, which made the woman uncomfortable; failed to schedule meetings, keep supplies stocked, and maintain the office library; and generally made mistakes on the job, including double-booking conference rooms and preparing a report for Levy that had to be rewritten by a coworker. Jones also reported to Levy that plaintiff had announced at an office meeting that she would no longer answer the phones and would simply call out sick when the receptionist was absent. Plaintiff also discussed inappropriate topics in the office, including the sexual preferences of her coworkers, and frequently argued with one particular coworker. As a result of these conversations, Levy asked Jones to instruct plaintiff to keep a log of her daily tasks. After her termination, Jones found papers in plaintiff's desk that belonged to other employees.

Overall, Jones described the last two weeks of plaintiff's employment as "very, very uncomfortable" because of her fear of plaintiff and plaintiff's insubordination and anger. During this time frame, Jones overheard plaintiff describe her position in the office as "office manager," when she was actually an office assistant.

Jones was concerned that plaintiff seemed to be keeping a log of Jones' activities and expected Jones to check in with her. Plaintiff also eavesdropped on Jones' conversations while standing outside of her office and then repeated what she overheard to other employees. A copy of plaintiff's resume, which indicated that plaintiff held the position occupied by Jones, was found on an office printer.

On August 2, 2004, Levy and Healthstar's general counsel met with Jones to discuss plaintiff's job performance. As a result, they authorized Jones to fire plaintiff. According to Jones, when she did so, plaintiff responded that she was going to "f'n kill" Jones, stormed out of the office, and ran to Human Resources.

On August 23, Jones e-mailed Brock a list of the reasons for plaintiff's termination, including insubordination, excessive absences, consistent negative attitude, failure to complete tasks accurately and completely, among others. In the e-mail, Jones explained that although plaintiff could have been terminated for cause, her termination would be categorized as "without cause" in order to end her employment immediately, allow her severance pay, and afford her the opportunity to collect unemployment.

Healthstar's disciplinary policy at the time included issuance of a verbal warning, a written warning, a second written warning, and then termination. Admittedly, the policy was not followed in this case.

I.

When reviewing a trial court's grant of summary judgment, we apply the same legal standard as the trial court under Rule 4:46-2(c). Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). "A motion for summary judgment should be granted only when the moving party establishes the absence of any genuine issue as to a material fact." Id. at 199. The trial court must determine whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

"If there is no genuine issue of material fact, we decide whether the trial court's ruling on the law was correct." Turner, supra, 363 N.J. Super. at 199. We need not defer to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

When a plaintiff proceeds on a "pretext theory" to establish discriminatory retaliation under the LAD, he or she must first establish a prima facie case of discrimination. Kolb v. Burns, 320 N.J. Super. 467, 478 (App. Div. 1999). "Once a prima facie case is established, the burden of persuasion is shifted to the employer to rebut the presumption of discrimination by articulating some legitimate nondiscriminatory reason for the adverse employment action." Ibid. If the employer makes such a showing, the plaintiff "has the ultimate burden of proving that the employer's proffered reasons were a pretext for the discriminatory action." Ibid.

As to the latter, the plaintiff "need not provide direct evidence that her employer acted for discriminatory reasons in order to survive summary judgment. 'She need only point to sufficient evidence to support an inference that the employer did not act for its proffered non-discriminatory reasons.'" Ibid. (quoting Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 432 (App. Div. 1995)). In other words, the plaintiff "must raise a genuine issue of material fact regarding whether the employer's proffered explanation is pretextual or whether[] the 'retaliatory discrimination was more likely than not a determinative factor in the decision.'" Kolb, supra, 320 N.J. Super. at 479 (quoting Bowles v. City of Camden, 993 F. Supp. 255, 262 (D.N.J. 1998)). Plaintiff asserts that her cause of action should have survived summary judgment because there is ample evidence that her employer acted for a discriminatory reason and that the proffered justifications were merely pretextual.

II.

In his written decision, Judge LeBlon relied upon the parties' concession that the applicable framework for analysis of the summary judgment issues was the "pretext theory." He concluded that within this framework, plaintiff failed to provide sufficient evidence to support her claim. Judge LeBlon opined that defendants provided ample reasons for the termination, which were undisputed, and that there was "no evidence whatsoever that plaintiff's communications to human resources had a determinative influence on [defendants'] decision." See Bergen Commercial Bank v. Sisler, 157 N.J. 188, 207 (1999). Because plaintiff had not met her burden of demonstrating that defendant's proffered reasons were "unworthy of credence," her claim could not survive defendant's motion for summary judgment. Kolb, supra, 320 N.J. Super. at 478. We agree.

On appeal, plaintiff argues that summary judgment should have been denied because a reasonable factfinder could conclude that her initial complaint to Human Resources was at least a "motivating factor" in Healthstar's decision to terminate her less than two weeks later. See Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 295 (App. Div. 2001). Plaintiff further contends that even if defendants had ample reason for their adverse action, they had not taken even the first step under the progressive discipline policy. In other words, plaintiff claims that defendants' conduct in firing her within two weeks of her complaint to Human Resources, without any prior warning, raised genuine issues of material fact.

Defendants contend, to the contrary, that merely because an adverse employment action occurred soon after the protected activity is not in itself sufficient for plaintiff's cause of action to withstand summary judgment. In order for temporal proximity alone to support an inference of causation, there must be facts "unusually suggestive of retaliatory motive." Young v. Hobart West Group, 385 N.J. Super. 448, 467 (App. Div. 2005) (quotations omitted). Naturally, defendants urge such facts are entirely absent here.

Plaintiff responds that her obligation to establish a prima facie case for purposes of summary judgment, is in fact "rather modest." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). She maintains that she only need demonstrate a factual scenario "compatible with discriminatory intent." Ibid. She proffers that the "temporal proximity" evidence, together with the "intervening hostility" evidence, satisfies that modest evidentiary standard.

Although plaintiff is correct that the evidentiary burden to establish a prima facie case of pretextual termination is not heavy in the summary judgment context, she has simply failed to carry it. When deposed, plaintiff acknowledged that Jones was not acting with malice, but was only trying to help her by suggesting that plaintiff seek counseling. Plaintiff also acknowledged that Human Resources assured her that she did not have to participate, and that Jones would be instructed to stop interfering with her personal life. Plaintiff conceded that Jones did not do so again, and that Jones' attitude, albeit changed for the worse, did not suggest that her job was in jeopardy.

Plaintiff's own admissions therefore significantly negate her purported "intervening hostility" evidence, leaving her with only "temporal proximity" evidence, which itself is not so "unusually suggestive" that it can support an inference of causation. Young, supra, 385 N.J. Super. at 467. Given the undisputed facts, even when examined in the light most favorable to plaintiff, the record is bare of any circumstance, other than temporal proximity, connecting plaintiff's complaint to Human Resources and the alleged retaliatory termination.

Plaintiff readily admitted her deficiencies as an employee. When deposed, she agreed that she had been spoken to about these various shortcomings in her job performance. Her own admissions established the steady decline in her job performance in the weeks preceding her termination, and notice by the employer about these deficiencies. She therefore cannot persuasively argue that the circumstances of her termination were unusually suggestive solely on the grounds of temporal proximity.

III.

Assuming for the sake of argument only that plaintiff factually established a prima facie case of retaliation, the trial court nonetheless correctly evaluated her "pretext" argument in the context of a summary judgment application. Because defendants offered "affirmative, credible evidence of a lawful reason for the termination," Donofry, supra, 350 N.J. Super. at 293, the burden shifted to plaintiff to show that the reason was pretextual or that "retaliatory discrimination was more likely than not a determinative factor in the decision," Bowles, supra, 993 F. Supp. at 262.

As the trial court noted, plaintiff offered "no evidence whatsoever that plaintiff's communications to human resources had a determinative influence on [defendants'] decision." In other words, she failed to proffer any evidence that her protected activity was a "determinative or substantial, motivating factor" in defendants' decision to terminate her. Donofry, supra, 350 N.J. Super. at 296.

Plaintiff argues that she met her burden of presenting "some evidence, direct or circumstantial, from which a reasonable factfinder could conclude that defendants' proffered reasons were 'either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).'" Kolb, supra, 320 N.J. Super. at 480 (quoting Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 551 (App. Div. 1995) (internal quotations omitted). Plaintiff points out that in this context, "a plaintiff may defeat a motion for summary judgment 'by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.'" DeWees v. RCN Corp., 380 N.J. Super. 511, 528 (App. Div. 2005)(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

Plaintiff points only to the timeline leading to termination in order to establish an inference of retaliatory animus and to discredit the asserted legitimate reasons for termination. It is now plaintiff's position that even if each and every job performance deficiency asserted by defendants is true, the ultimate question is whether those deficiencies constituted the actual reason for termination or were merely pretextual. According to plaintiff, the trial court should have considered inconsistencies in Jones' testimony and the representation by Healthstar to the Department of Labor that the termination was "without cause" as discrediting the proffered reasons. Plaintiff further suggests that Jones was intentionally untruthful.

Defendants respond that the alleged inconsistencies in Jones' testimony are minimal. Specifically, they assert that Jones' testimony is undisputed that she discussed with Levy the incident in which plaintiff called a coworker a "fagot," her stated refusal to answer the phones, her failure to correctly book the conference room, and Levy's directive, which plaintiff ignored, that she keep a daily log of her tasks. Defendants contend that therefore Jones' initial inability to recall her earlier discussions with Levy does not make her later statements implausible. Her lapses in recall do not overcome the substantial evidence justifying plaintiff's termination. Finally, defendants aver that Jones' indication on plaintiff's unemployment documents that the termination was "without cause" was made simply to avoid "a long and costly hearing and appeal procedure and that the explanation does not make Jones' testimony incredible." We agree.

 
Plaintiff failed to present any evidence that retaliation was more likely than not a motivating or determinative cause of her termination. She was therefore obligated to demonstrate some proof of "weaknesses, implausibilities, inconsistencies, incoherences, or contradictions" in defendants' proffered nondiscriminatory reasons for termination. DeWees, supra, 380 N.J. Super. at 528 (quoting Fuentes, supra, 32 F.3d. at 765). Even when viewed in the most favorable light, the asserted inconsistencies would not warrant a reasonable factfinder concluding that the stated reasons for termination were illegitimate and unbelievable. Because no reasonable factfinder could conclude that defendants' reasons for termination were pretextual, plaintiff failed to meet her burden of proof. Hence, the award of summary judgment was warranted.

Affirmed.

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A-6043-07T3

August 14, 2009