CLARK MOTLEY v. THE STATE OF NEW JERSEY DIVISION OF STATE POLICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3566-07T2

CLARK MOTLEY and JOANNE

MOTLEY,

Plaintiffs-Appellants,

v.

THE STATE OF NEW JERSEY,

DIVISION OF STATE POLICE,

Defendant-Respondent.

___________________________________

November 15, 2010

 

Submitted September 22, 2010 - Decided

Before Judges Fuentes, Gilroy and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No.

L-342-04.

 

Michael J. Reimer, attorney for appellant.

 

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel, Mary Beth Wood, Deputy Attorney General, on the brief).

 

PER CURIAM

Plaintiff Clark Motley, a retired State Trooper, appeals from orders entered in the Law Division dismissing his discrimination and retaliation complaint against the State of New Jersey and the Division of State Police. We affirm.

I.

Plaintiff is a Caucasian man. He became a State Trooper in 1987 and served in that capacity until he was compelled to retire on disability on June 1, 2004. During his employment, he requested and received several transfers of duty and station. He was promoted to Trooper I in 1997, and remained in that rank until his forced retirement.

In 2002, plaintiff was named a Trooper of the Year for his heroic rescue efforts during the September 11, 2001 catastrophe at the World Trade Center. He and other Troopers transported firefighters and police officers to safety by boat across the Hudson River. In October 2002, however, plaintiff took sick leave and never returned to active duty.

On February 6, 2004, plaintiff and his wife filed a nine-count complaint against the State of New Jersey, the Attorneys General of the State of New Jersey "past and present," the New Jersey State Police, the Superintendents of the State Police "past and present," and fictitiously-named "John Doe" defendants (the State defendants). The complaint alleged hostile work environment under the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49, (count one); disparate treatment under the LAD (count two); violations of State constitutional rights (count three); retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, (count four); retaliation in violation of the LAD (count five); sexual harassment in violation of the LAD (count six); the common law tort of intentional infliction of emotional distress (count seven); common law harassment (count eight); and direct claims of injury to Joanne Motley based on the same allegations contained in the first eight counts of the complaint (count nine).

On June 29, 2004, plaintiffs filed an amended complaint, which did not add or alter claims as listed but amended some factual allegations and dropped the Attorneys General and the Superintendents of the State Police as defendants.

Following procedural rulings and an interlocutory appeal that do not directly affect the current appeal, Motley v. State, Docket No. A-6626-04 (App. Div. May 12, 2006), the State defendants moved to dismiss all but the CEPA count of the complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. The Law Division heard oral argument and, by oral decision and an order dated March 16, 2007, granted the motion to dismiss all counts of the complaint but count four alleging violation of CEPA and count nine alleging direct claims by Joanne Motley. Subsequently, plaintiffs did not oppose dismissal of count nine by order dated June 22, 2007, for Joanne Motley's failure to provide discovery.

Several months later, the State defendants moved for summary judgment dismissing the sole remaining CEPA count. The Law Division granted defendants' motion by oral decisions dated January 18 and February 19, 2008, and an order entered on the latter date.

Plaintiffs filed a timely notice of appeal from the orders of dismissal dated March 16, 2007, and February 19, 2008.

II.

We turn first to the trial court's dismissal of counts of the complaint other than those alleging discrimination in violation of the LAD and the State constitution.

A.

Count nine alleged injury to Joanne Motley.1 Plaintiffs' notice of appeal does not reference the order of June 22, 2007, which dismissed count nine for failure to provide discovery. Nor does plaintiffs' appellate brief argue error in relation to count nine. Plaintiffs' brief states that Joanne Motley voluntarily chose to dismiss her claims rather than provide a release for discovery of her medical records. Consequently, although Joanne Motley is named as an appellant in the notice of appeal and in the captions of the briefs, the appeal as argued does not involve her.

B.

The trial court dismissed counts seven and eight of the complaint for plaintiff's failure to comply with the requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Those counts alleged respectively the common law torts of intentional infliction of emotional distress and harassment. Because the court's ruling was purely a matter of law, our standard of review is plenary. See Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

N.J.S.A. 59:8-3 provides that "[n]o action shall be brought against a public entity or public employee under [the Tort Claims Act] unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." N.J.S.A. 59:8-8 requires a claimant to file a "claim with the public entity within 90 days of accrual of his claim." Plaintiff never filed any notice of claim with any of the State defendants.

Before the trial court, plaintiff argued that he was not required to comply with the Tort Claims Act because his common law tort claims were brought in conjunction with statutory CEPA and LAD claims. The trial court correctly rejected this argument.

Although the notice provisions of the Tort Claims Act are not applicable to claims under CEPA and the LAD, see Fuchilla v. Layman, 109 N.J. 319, 337-38, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988), they apply to separately pleaded common law tort claims. In Owens v. Feigin, 394 N.J. Super. 85, 97 (App. Div. 2007), aff d as modified, 194 N.J. 607 (2008), we held that the notice provisions of the Tort Claims Act do not apply to a statutory claim under New Jersey's Civil Rights Act, N.J.S.A. 10:6-2. The plaintiff in that case had not challenged dismissal of his common law tort claims for failure to provide timely notice under the Tort Claims Act, and we did not disturb that ruling. Id. at 88.

Common law tort claims are not exempt from the requirements of the Tort Claims Act when plaintiff has also brought statutory discrimination claims.

 

C.

The trial court granted summary judgment to defendants on count four of the complaint, which charged violation of CEPA, as barred by the applicable statute of limitations.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "consider 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).

In count four, plaintiff alleged that "prior to 2000," the State Police used an unofficial quota system requiring Troopers to write a minimum number of traffic citations per month. Plaintiff refused to comply with the quota system because he believed it was against public policy, and he took steps to make the system known to the New Jersey Senate. On December 12, 2000, legislation was enacted prohibiting use of ticketing quotas. N.J.S.A. 40A:14-181.2. Plaintiff alleged he was "subjected to internal investigations, harassment, discrimination, and . . . a hostile atmosphere" as a result of his actions against the quota system.

CEPA prohibits an employer from taking retaliatory action against an employee if the employee:

(a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes (1) is in violation of a law, a rule or a regulation . . . .

 

. . . .

 

(c) objects to, or refuses to participate in any activity, policy, or practice which the employee reasonably believes (1) is in violation of a law, . . . or (3) is incompatible with a clear mandate of public policy . . . .

 

[N.J.S.A. 34:19-3.]

 

To make a claim under CEPA, plaintiff must file a complaint within one year of the violation alleged. N.J.S.A. 34:19-5; Notte v. Merchants Mut. Ins. Co., 386 N.J. Super. 623, 627 (App. Div. 2006). The retaliatory actions alleged in count four occurred long before February 6, 2003, which is one year before plaintiff's original complaint was filed.

Plaintiff argues that a continuing violation theory applies to his claims, such that the statute of limitations does not bar his CEPA cause of action. See Green v. Jersey City Bd. of Educ., 177 N.J. 434, 446-48 (2003). We will address the continuing violation theory of extending a statute of limitations later in this opinion when discussing the LAD counts. That theory is not available in the circumstances of this case to extend the time for plaintiff's CEPA claim.

Factual allegations of the complaint other than those relating to the quota system for traffic tickets also relate to plaintiff's allegations of retaliation in violation of the LAD and the State constitution. Plaintiff cannot rely on the same allegations as part of his CEPA cause of action.

CEPA provides that:

Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation . . . ; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other . . . State law, rule, regulation or under the common law.

 

[N.J.S.A. 34:19-8.]

 

This statute means that, in pursuing a claim of retaliation under CEPA, a plaintiff waives any rights or claims for retaliation under other statutes, such as the LAD, and under constitutional provisions or the common law. See Young v. Schering Corp., 141 N.J. 16, 29 (1995); see also Estate of Oliva v. N.J., Dep't of Law & Pub. Safety, Div. of State Police, 604 F.3d 788, 803 (3d Cir. 2010) (CEPA waiver provision precluded plaintiff's LAD claims because they were based on the same underlying allegations of retaliation).

Consequently, if plaintiff is claiming a cause of action under CEPA on the basis of allegations in his complaint beyond the ticketing quota system, he cannot pursue a remedy under the LAD, the State constitution, or the common law for the same conduct. The CEPA claim cannot overlap other claims. To maintain his LAD, constitutional, or common law claims, plaintiff may not rely on allegations made in support of those claims to prove a continuing violation theory of his CEPA claim. Either we must regard plaintiff's CEPA claim as limited only to alleged retaliation for failing to engage in the ticketing quota system at a time period substantially earlier than February 6, 2003, or we must dismiss all other claims in the complaint under the CEPA waiver provision.

Even if all other counts of the complaint were to be dismissed in favor of the CEPA claim alone, we would not apply the continuing violation theory to save the CEPA count from its statute of limitations bar. The same reasons discussed in section III-B of this opinion would apply to the continuing violation theory as applied to count four. For purposes of this opinion, we will assume that plaintiff would prefer to maintain his LAD and constitutional claims rather than seek to apply the continuing violation theory to his CEPA claim alone.

We conclude that the trial court correctly granted summary judgment dismissing the CEPA count of the complaint as barred by the one-year statute of limitations, and we will address the continuing violation theory as it may potentially apply to the other claims.

III.

We consider next plaintiff's main argument on appeal challenging dismissal of his LAD and State constitutional claims under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted.

Before dismissing a cause of action under that rule, a court must "search[] the complaint in depth and with liberality" to determine whether a cause of action is "'suggested' by the facts." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). A reviewing court must "ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Ibid. (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). Our review of the complaint must be "generous and hospitable" to plaintiff. Ibid. Dismissal is appropriate if the complaint states no basis for relief and discovery would not provide one. Camden County Energy Recovery Assoc., L.P. v. N.J. Dep't of Envtl Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd, 170 N.J. 246 (2001).

If "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion." R. 4:6-2(e). In this case, the trial court permitted the parties to submit and rely upon evidence outside the four corners of the complaint, especially plaintiff's deposition testimony.

Plaintiff's amended complaint, like his appellate brief before us, is long on general allegations and short on specifics. We are constrained to criticize plaintiff's brief for failing to direct us to the parts of the record that support his factual allegations. Our rules of procedure require that an appellant include in his brief "[a] concise statement of the facts material to the issues on appeal supported by references to the appendix and transcript." R. 2:6-2(a)(4). Plaintiff's brief falls woefully short of that procedural mandate.

Cognizant of the liberality and hospitality required by our scope of review, we view the broad allegations of the complaint in light of plaintiff's "opportunity to present all material pertinent to" the motion to dismiss. See R. 4:6-2(e). We have reviewed plaintiff's complaint to determine whether we can glean a viable cause of action for discrimination, hostile work environment, retaliation, or sexual harassment under the LAD and State constitutional protections.

A.

Plaintiff alleged a long-standing culture of racism and sexism within the New Jersey State Police. He claimed he "was harassed and treated differently on the job than other Troopers who were willing to demonstrate discriminatory animus and prejudice towards minority and female Troopers as well as members of the public." While provocative, plaintiff's claims misconstrue the legal framework for an LAD or constitutional cause of action based on race or gender discrimination.

As an initial matter, plaintiff incorrectly attributes to the trial court a holding that "white males are not protected by" our laws against discrimination. The trial court's decision was more narrowly tailored to plaintiff's status as a white male together with his specific claims and factual allegations. Ultimately, the court concluded that plaintiff failed to allege he was subjected to disparate treatment or a hostile work environment because of his identification with a protected category enumerated in the LAD. The trial court reasoned the complaint alleges that plaintiff "is not, because of his race, being prosecuted, persecuted, or otherwise mistreated by the State police, but rather because of his decisions." The court's analysis was correct if the complaint is viewed as raising typical claims of racial or sex discrimination.

The LAD provides that "[i]t shall be an unlawful employment practice . . . for an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex2 . . . of any individual . . . to discriminate against such individual . . . in terms, conditions or privileges of employment." N.J.S.A. 10:5-12a (emphasis added). The language of this statute requires that plaintiff show discrimination because of one of the enumerated identifying characteristics as it pertains to him, such as his race or sex.

In a typical discrimination case brought under N.J.S.A. 10:5-12a, a plaintiff must show that he belongs to a protected class as listed in the statute. See, e.g., Andersen v. Exxon Co., 89 N.J. 483, 492 (1982) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 35 L. Ed. 2d 668 (1973)). Where plaintiff does not belong to a protected class, he must show discrimination in another way recognized under the LAD. For example, to prevail in a so-called "reverse" discrimination claim, a plaintiff must show that the defendant "is the unusual employer who discriminates against the majority." Erickson v. Marsh & McLennan Co., 117 N.J. 539, 551 (1990); see also Bergen Commercial Bank v. Sisler, 157 N.J. 188, 213-14 (1999) (age discrimination alleged on basis of plaintiff's youth).

In this case, plaintiff does not allege that the State Police was the unusual employer that discriminated against Caucasian males. To the contrary, plaintiff alleges the State Police discriminated against those who are usually identified as minority or historically disadvantaged persons. Plaintiff has not alleged that acts of discrimination occurred because of his own race or sex.

Plaintiff correctly asserts that a white male can bring an LAD claim on the basis of race or gender if he faces discrimination as a result of associating with minority persons who are within a protected LAD class. See O'Lone v. N.J. Dep't of Corrections, 313 N.J. Super. 249, 255 (App. Div. 1998) ("where the plaintiff is wrongfully discharged for associating with a member of a protected group, that is the functional equivalent of being a member of the protected group"). However, plaintiff has not alleged any specific association with minorities or women that was the cause of discrimination against him. He claims generally that he faced discriminatory conduct because he refused to follow the alleged practices of the State Police that discriminated against minority persons and women. The holding of O'Lone does not apply to plaintiff's allegations. A plaintiff does not become "the functional equivalent" of a member of a protected group simply by adopting and living by anti-discrimination principles.

Taking plaintiff's general factual allegations such as they are, plaintiff has not stated a cause of action for race or sex discrimination under N.J.S.A. 10:5-12a based on plaintiff's own race or gender or his association with protected groups. As we will discuss, however, plaintiff's allegations might state a cause of action for reprisals in violation of the LAD under N.J.S.A. 10:5-12d, a statute plaintiff has not cited or otherwise referenced in his complaint or in his appellate brief.

B.

N.J.S.A. 10:5-12d states that it is a violation of the LAD:

"For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act . . . ." This subsection of the LAD allows a white male to bring a claim of reprisal or retaliation for refusing to participate in discriminatory conduct against protected groups.

In Shepherd v. Hunterdon Developmental Center, 174 N.J. 1 (2002), the plaintiffs alleged harassment and retaliation by their supervisors for their support of African-American co-workers. The plaintiffs had provided evidence on behalf of the co-workers in a successful racial discrimination lawsuit. Id. at 8-9. The Supreme Court stated that, to prove a claim for hostile work environment, plaintiffs were required to show that the "complained of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive." Id. at 24 (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)). The Court in Shepherd did not question whether the plaintiffs had met the first criterion, their protected status, because the plaintiffs had provided evidence in the racial discrimination lawsuit. Id. at 24-25.

In this case, plaintiff's complaint alleges only generally that he was discriminated against for refusing to adopt racist and sexist attitudes and conduct toward others. Unlike Shepherd, he does not identify what specific conduct he engaged in that was contrary to the alleged racist and sexist policy and practices of the State Police and that gave him protected status.3

Plaintiff's complaint is also deficient in alleging facts showing adverse action against him that would prove a violation of the LAD or the State constitution. Count one of the complaint, which makes a claim for hostile work environment, does not allege any specific conduct by defendants directed at plaintiff or related to his race or sex. It describes in general terms allegedly discriminatory practices of the State Police in the 1980s and 1990s against minorities and women. Count one provides no dates for more recent conduct and describes no specific acts creating the alleged hostile work environment in the recent past.

In count two of his complaint, which is captioned "Disparate Treatment as to Promotions and Transfers," plaintiff has not alleged a single denial of a promotion or transfer to him. He generally states that others who were less deserving received promotions and he did not, but he does not identify any instance where he was qualified but did not obtain a promotion because of his refusal to engage in discriminatory practices.

The LAD retaliation claim in count five alleges generally that the State Police conducted a lengthy investigation of plaintiff "in an effort to find something with which the State Police could inflict punitive discipline against [him]." The only specific conduct alleged in count five refers to an incident in 2001 when a fellow Trooper accused plaintiff of failing to respond promptly to radio transmissions. The State Police conducted an internal investigation and, on April 23, 2001, exonerated plaintiff of a charge of inefficiency. On April 30, 2001, however, plaintiff was issued a "Counseling Performance Notice" regarding compliance with radio procedures. These allegations are not within the statute of limitations for plaintiff's claims of discrimination.

A lawsuit alleging LAD and State constitutional claims must be filed within two years of the discriminatory act or conduct. See Montells v. Haynes, 133 N.J. 282, 292 (1993); N.J.S.A. 2A:14-2. Plaintiff filed his original complaint on February 6, 2004. His LAD and constitutional claims, therefore, would normally be limited to conduct that occurred after February 6, 2002. The 2001 investigation and the "Counseling Performance Notice" pre-date the time period for which plaintiff could pursue remedies through a discrimination complaint.

Plaintiff argues that his claims are within the statute of limitations under a continuing violation theory. In alleging a hostile work environment, a plaintiff "may pursue a claim for discriminatory conduct if he or she can demonstrate that each asserted act by a defendant is part of a pattern and at least one of those acts occurred within the statutory limitations period." Shepherd, supra, 174 N.J. at 6-7. "The doctrine provides that when an individual experiences a 'continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases.'" Roa v. Roa, 200 N.J. 555, 566 (2010) (quoting Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999)). The cause of action accrues on the date that the last act occurred. Shepherd, supra, 174 N.J. at 21.

Only two factual allegations contained in the entire complaint pertain to events within the two-year limitations period. Neither one is specifically alleged in count five claiming retaliation, but, since each count of the complaint incorporates allegations in other counts, we will review all relevant events alleged in the complaint to determine if they state a claim for retaliation under count five.

Count six alleges sexual harassment and count seven alleges intentional infliction of emotional distress, both based on an incident involving a group photograph of plaintiff and other Troopers. Although the complaint does not specify a date, the photograph was apparently taken sometime in 2002, when plaintiff was honored as a Trooper of the Year for his September 11, 2001 efforts. As part of the honors, plaintiff was photographed with President George W. Bush. At a separate time, plaintiff was photographed in a group with about a dozen other officers. As the group photograph was being taken, a police sergeant standing above a line of officers exposed his genitals. Later, the sergeant gave plaintiff a copy of the photograph and allegedly made an offensive remark about size, which plaintiff interpreted to refer to the sergeant's anatomy.4

Plaintiff alleged that "the conduct of the offending supervisor was motivated by the fact that plaintiff was not one of the favored Troopers who was willing to demonstrate a proclivity for racist and sexist attitudes and behavior." The connection alleged is not apparent in the nature of the act, the photograph itself, or any other facts alleged in the complaint. Contrary to plaintiff's claim, the offending sergeant was not standing directly above plaintiff in the photograph. Plaintiff recites no facts to support his claim that the lewd conduct was aimed at him as opposed to the other eleven Troopers, or at the public generally. Retaliatory conduct under N.J.S.A. 10:5-12d must be directed at the individual claiming reprisal for opposing practices or acts forbidden under the LAD.

In the eighth count of the complaint, alleging common law harassment, the complaint recounts a teletype sent to State Police barracks in August 2002 announcing plaintiff's being named a Trooper of the Year for his September 11 heroics. An unidentified person wrote the word "bullsh**" over plaintiff's name on the teletype, and the defaced announcement remained for some days on the bulletin board of a single State Police barracks other than the one where plaintiff was stationed. Plaintiff did not see the bulletin board; another Trooper told him about it and retrieved the defaced teletype for plaintiff. The State Police opened an investigation but found insufficient evidence to discipline anyone for that conduct.

With no additional specific instances of retaliation alleged, these two incidents are not sufficient to prove a severe and pervasive hostile work environment that would prove unlawful reprisals under the LAD as part of a "continual, cumulative pattern of tortious conduct." Wilson, supra, 158 N.J. at 272. The photograph fits nowhere in an alleged "pattern" of conduct aimed at plaintiff. The teletype incident was clearly aimed at plaintiff, but it was not so severe or pervasive as to make a reasonable person believe that the working environment at plaintiff's work station was hostile and abusive. See Shepherd, 174 N.J. at 24. Moreover, plaintiff cannot attribute the remark written on the teletype to any supervisor and, therefore, to the State Police as his employer. See Lehmann, supra, 132 N.J. at 626.

At best, the allegations concerning the photograph and the teletype reference isolated incidents with undetermined motivation. They are too slim a reed to support the broad-ranging claims of hostile work environment and retaliation pled in the entirety of plaintiff's complaint and to carry those allegations into the two-year limitations period.

At oral argument before the Law Division and before us, plaintiff alleged that his forced disability retirement as of June 1, 2004, was an act of retaliation within the limitations period, and it demonstrated a continuing pattern of unlawful conduct by the State Police. The forced retirement was not even pled as a factual allegation in the June 29, 2004 amended complaint. As late as 2008, counsel for the State defendants noted before the trial court that "there's never been a claim for involuntary retirement. There's no claim for that in the complaint, even after plaintiff amended the complaint."

Even if the claim for involuntary retirement were to be added to the amended complaint at this late date, plaintiff cannot show the State Police required him to retire for unlawful reasons. Plaintiff had been on sick leave for nineteen months and had no prospect of ever returning to duty. At his deposition in 2007, plaintiff testified that he was not then capable of returning to work because of illnesses caused by the September 11 devastation. Plaintiff was not entitled to remain on sick leave at full pay for an indefinite period of time.

We conclude that the trial court correctly dismissed plaintiff's claims for LAD disparate treatment, hostile work environment, and retaliation, and the same types of claims under State constitutional provisions. Those counts of the complaint failed to state a claim upon which relief can be granted within the two-year statute of limitations.

C.

Finally, the trial court correctly dismissed count six alleging sexual harassment based on the group photograph.

Claims of sexual harassment under the LAD fall into two categories: (1) quid pro quo sexual harassment, "which conditions employment on submission to sexual demands," and (2) hostile work environment sexual harassment, which "occurs when an employer . . . harass[es] an employee because of his or her sex to the point at which the working environment has become hostile." J.M.L. ex rel. T.G. v. A.M.P., 379 N.J. Super. 142, 147 (App. Div. 2005) (citing Lehmann, supra, 132 N.J. at 601) (emphasis added). In the second category, the "defining characteristic" of the cause of action "is that the harassment occurs because of the victim's sex." Lehmann, supra, 132 N.J. at 602.

Plaintiff's claim does not allege quid pro quo sexual harassment. It also fails to state a claim for hostile work environment as a form of sexual harassment. Plaintiff has not and cannot allege that the lewd conduct occurred because of his sex. Rather, the complaint specifically states that the officer's conduct was motivated by plaintiff's failure to display racist and sexist attitudes. The trial court correctly ruled that plaintiff's claim is not one for sexual harassment under the LAD, and we have already considered the same factual allegations in support of plaintiff's other claims of reprisals in violation of the LAD.

Count six was properly dismissed as a separate sexual harassment claim.

IV.

Although our review of the record has considered legal grounds other than those relied upon by the trial court, see Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (appellate court may rely on legal grounds different from those relied upon by the trial court), we conclude that the trial court correctly dismissed all of plaintiff's claims.

Affirmed.

 

1 At oral argument in the Law Division, plaintiffs' attorney insisted that count nine was not a derivative per quod claim but a direct claim that the conduct of the State defendants toward her husband had also caused injury to Joanne Motley. Such a claim could have been dismissed pursuant to Rule 4:6-2(e) in accordance with our holding in L.W. ex rel. L.G. v. Toms River Regional Schools Bd. of Educ., 381 N.J. Super. 465, 501 (App. Div. 2005), modified on other grounds, 189 N.J. 381 (2007). See generally Portee v. Jaffee, 84 N.J. 88, 101 (1980) (only a strictly limited cause of action permitted for close family member of victim of tortious conduct).

2 We have omitted additional, non-pertinent, protected characteristics and classes of people listed in the statute.

3 We recognize that plaintiff alleged his refusal to participate in the ticketing quota system was in part based on his opposition to racial profiling practices used for motor vehicle stops. For the reasons discussed previously, the CEPA claim cannot overlap with the LAD claims.

4 The appellate record does not disclose what disciplinary action was taken against the sergeant who committed the lewd act.