KATHERINE KLEMP v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1992-08T21992-08T2

KATHERINE KLEMP,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

DEPARTMENT OF LAW AND

PUBLIC SAFETY,

NEW JERSEY STATE POLICE,

NEW JERSEY OFFICE OF WORKPLACE

POLICY ADMINISTRATION AND ENFORCEMENT,

MICHAEL SOVEY, JAMES FISH, and

WALTER KAVANAUGH,

Defendants-Respondents.

___________________________________

 

Argued October 20, 2009 - Decided

Before Judges Skillman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-945-07.

George T. Daggett argued the cause for appellant (Daggett, Kraemer, Kovach & Gjelsvik, attorneys; Mr. Daggett, on the brief).

Thomas E. Kemble, Deputy Attorney General, argued the cause for respondents (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Kemble, on the brief).

PER CURIAM

Plaintiff Katherine Klemp appeals from the December 5, 2008 order that dismissed her amended complaint for failure to state a claim upon which relief can be granted, R. 4:6-2(e). We affirm in part; reverse in part; and remand for further proceedings.

Plaintiff is employed as a detective by the Division of State Police (Division) of the New Jersey Department of Law and Public Safety, having been sworn in as a State Trooper in November 1998. In February 2004, the Division transferred plaintiff to the Organized Crime Central Unit (OCCU). Defendant Lieutenant James Fish was in charge of OCCU; defendant Sergeant First Class Michael Sovey was second in command; and defendant Sergeant Walter Kavanaugh was attached to the OCCU. Plaintiff remained in OCCU until reassigned to the Digital Technology Investigations Unit on April 30, 2005.

On April 17, 2007, plaintiff filed a complaint against the Division, the individual defendants, the New Jersey Department of Law and Public Safety, and the New Jersey Office of Workplace Policy Administration and Enforcement, alleging that defendants had violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by subjecting her to hostile work environment gender discrimination, and retaliating against her for having cooperated with an anonymous complaint to the Division's Equal Employment Opportunity/Affirmative Action Office (EEO/AA) concerning the derogatory and abusive manner in which the individual defendants had treated her. In lieu of filing an answer, defendants filed a motion seeking to dismiss the complaint for plaintiff's failure to state a claim upon which relief can be granted, contending that her claims were time barred.

On August 17, 2007, the trial court granted defendants' motion. Plaintiff appealed, and we reversed, granting plaintiff leave to file an amended complaint "alleging with specificity the dates on which alleged incidents occurred, the identity of the actors involved in those incidents and the statutes allegedly violated." Klemp v. State of New Jersey, A-0064-07 (App. Div. July 18, 2008) (slip op. at 6).

On September 16, 2008, plaintiff filed an amended complaint alleging the same causes of action against defendants (counts one and two). Additionally, plaintiff sought an order compelling the Office of Workplace Policy Administration and Enforcement to complete its internal investigation of the individual defendants that it had commenced in March 2005 (count three). Lastly, plaintiff added a fourth count alleging that because of defendants' actions or omissions, she was receiving psychological counseling.

On October 7, 2008, defendants again moved to dismiss the complaint pursuant to Rule 4:6-2(e). Defendants contended that plaintiff had failed to state a claim of retaliation because she failed to allege she had suffered an adverse employment action. Defendant also asserted that plaintiff failed to state a claim for hostile work environment because the amended complaint failed to state that defendant's actions were gender based. On December 5, 2008, the trial court, agreeing with defendants' arguments, entered an order supported by an oral decision granting the motion.

On appeal, plaintiff argues that the trial court erred in granting defendants' motion to dismiss. Plaintiff contends that she sufficiently alleged that she was subjected to an adverse employment action in reprisal for engaging in protected activities under the LAD. Plaintiff also asserts that she sufficiently alleged specific instances of the individual defendants' discriminatory and harassing actions to support "a single cause of action for [gender] discrimination."

On a Rule 4:6-2(e) motion to dismiss a complaint for failure to state a claim, the court applies an indulgent standard. "[T]he plaintiff is entitled to a liberal interpretation of [the] contents [of the complaint] and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn" therefrom. Burg v. State, 147 N.J. Super. 316, 319 (App. Div.) (quoting Rappaport v. Nichols, 31 N.J. 188, 193 (1959)), certif. denied, 75 N.J. 11 (1977). Every reasonable inference is accorded the plaintiff, Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989), and the motion is "granted only in rare instances and ordinarily without prejudice." Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2010).

While the "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," Printing Mart-Morristown, supra, 116 N.J. at 746, the reviewing court must "view the allegations with great liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). Accordingly, "the test for determining the adequacy of a pleading [is] whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). In applying this test, a court treats the plaintiff's version of the facts as set forth in his or her complaint as uncontradicted and accords it all legitimate inferences. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005). On appeal, our standard of review is the same as the trial court's. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). It is against these principles that we consider plaintiff's arguments.

Plaintiff first argues that the trial court erred in dismissing her retaliation claim set forth in count two of the amended complaint for failing to allege she suffered an adverse employment action. We disagree.

To prove a prima facie case of retaliatory discrimination under the LAD, the claimant must prove that: (1) the claimant engaged in a protected activity known to the employer, (2) the claimant thereafter was subjected to an adverse employment decision by the employer, and (3) there was a causal link between the two. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995). The LAD prohibits an employer from taking reprisals against an employee because the employee opposed practices or acts prohibited under the LAD, or because the employee filed a complaint, testified or assisted in any proceeding under the LAD. N.J.S.A. 10:5-12(d). However, the LAD does not define "adverse employment action" and there is no bright-line rule in determining what constitutes an adverse employment action. Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002), aff'd. o.b., 179 N.J. 425 (2004).

Nonetheless, such actions as terminating the employee from employment or failing to promote the employee constitute adverse employment actions. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 447 (App. Div. 1990). Likewise, forcing a plaintiff into resigning from his or her employment can constitute an adverse employment action. Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 276 (App. Div. 1996). Simply stated, to constitute an adverse employment action, "the retaliatory conduct alleged must be 'serious and tangible' enough to alter an employee's compensation, terms, conditions, or privileges of employment, deprive her future employment opportunities, or otherwise have a 'materially adverse' effect on her status as an employee." Hargrave v. County of Atlantic, 262 F. Supp. 2d 393, 427 (D.N.J. 2003) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300-01 (3d Cir. 1997)).

Here, plaintiff alleged in her complaint that Slovey failed to complete her last two quarterly evaluations for 2004, which, in turn, delayed her personal 2005 evaluation by Kavanaugh, necessitating plaintiff having to recreate her 2004 activities for Kavanaugh's consideration. We are satisfied that these allegations fail to state that plaintiff suffered an adverse employment action. There is no assertion that the delay in processing her evaluations wrongfully denied plaintiff pay raises, promotions, or had other similar adverse effect on the terms, conditions or privileges of her employment. Thus, we affirm the dismissal of count two of the amended complaint.

Plaintiff argues next that the trial court erred in dismissing her gender discrimination claim set forth in count one of her amended complaint, which included allegations that the individual defendants "created and allowed to exist a hostile work environment" subjecting her "to discrimination, rude and vulgar treatment[,] which demeaned her abilities as a member of the [Division]." We agree.

Discrimination based on one's gender is prohibited in the workplace by the LAD. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 600 (1993). Sexual harassment is a form of gender discrimination. Id. at 601; Muench v. Twp. of Haddon, 255 N.J. Super. 288, 295-98 (App. Div. 1992). Simply stated, "hostile work environment sexual harassment . . . occurs when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile." Lehmann, supra, 132 N.J. at 601. "However, the harassing conduct need not be sexual in nature; rather, its defining characteristic is that the harassment occurs because of the victim's sex." Id. at 602.

A plaintiff proves a prima facie case of hostile work environment by establishing that "the complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and [that] the working environment is hostile or abusive." Id. at 603-04; see also Shepherd v. Hunterdon Center, 174 N.J. 1, 24 (2002).

Here, the trial court granted defendants' motion to dismiss the hostile work environment gender discrimination claim determining that the amended complaint failed to suggest that the hostile treatment plaintiff was subjected to was "as a result of the plaintiff being female." We conclude that the court erroneously construed plaintiff's amended complaint.

Plaintiff structured her complaint by setting forth the facts she alleged constituted the basis for her cause of action in a twenty-six paragraph "background," followed by the various causes of action and prayers for relief, each of which incorporated the allegations contained in the background paragraph. Paragraph No. 22 of the background paragraph stated in pertinent part: "[t]he pattern of harassment and hostility began upon [p]laintiff's transfer to the [OCCU] . . . . On a daily basis, she was treated differently from male members of the unit. . . . " Paragraph No. 24 stated: "[p]laintiff is a member of a protected minority and was discriminated against because of that status."

We are satisfied that the allegations contained in Paragraphs 22 and 24 of the background portion of plaintiff's complaint, when read with the balance of the allegations contained in the background portion of plaintiff's complaint and in count one, sufficiently allege that she was subjected to hostile work environment discrimination because of her gender. Accordingly, we reverse that part of the order dismissing count one.

Plaintiff does not appeal the dismissal of count three of her amended complaint, advising at the time of oral argument that it was only included to obtain an order directing the Office of Workplace Policy Administration and Enforcement to complete its prior investigation. Plaintiff's counsel advised that the investigation has been completed, and that issue is now moot. Nor did plaintiff challenge the dismissal of count four of the amended complaint which only alleged that she was undergoing counseling. While that allegation may constitute an element of damage under count one, count four does not state a separate cause of action. Thus, we affirm the dismissal of counts three and four.

At oral argument, defendants contended, as they had on the original motion to dismiss, that we should affirm the trial court's dismissal of the amended complaint because most of the allegations fall outside the statute of limitations, asserting that they had raised the argument in a footnote in their opposition brief. Because the issue was not properly presented under an appropriate point heading, we decline to consider the argument. R. 2:6-2(a)(5); R. 2:6-4(a); Almog v. ITAS, 298 N.J. Super. 145, 155 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998).

 
We affirm the trial court's dismissal of counts two, three, and four of the first-amended complaint; we reverse the dismissal of count one and remand to the trial court for further proceedings.

(continued)

(continued)

2

A-1992-08T2

January 11, 2010