MARSHA DETTELBACH-HOOK v. ST. PETER'S HAVEN FOR FAMILIES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5340-08T15340-08T1

MARSHA DETTELBACH-HOOK,

Plaintiff-Appellant,

v.

ST. PETER'S HAVEN FOR FAMILIES,

THE BOARD OF TRUSTEES OF ST.

PETER'S HAVEN FOR FAMILIES, ST.

PETER'S EPISCOPAL CHURCH, THE

VESTRY BOARD OF ST. PETER'S

EPISCOPAL CHURCH; THE EPISCOPAL

DIOCESE OF NEWARK, FATHER PETER

DeFRANCO, WARDEN NANCY YOUNG,

and WARDEN PAMELA FUESHKO,

Defendants-Respondents.

_________________________________

 

Argued February 23, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-260-09.

Arnold Shep Cohen argued the cause for appellant (Oxfeld Cohen, P.C., attorneys; Mr. Cohen, of counsel and on the brief).

Heather R. Boshak argued the cause for respondents St. Peter's Haven for Families and the Board of Trustees of St. Peter's Haven for Families (Fox Rothschild, L.L.P., attorneys; Ms. Boshak, of counsel and on the brief; Jennifer DaCosta, on the brief).

Gregory D. Winter argued the cause for respondents St. Peter's Episcopal Church, The Vestry Board of St. Peter's Episcopal Church, the Episcopal Diocese of Newark, Father Peter DeFranco, Warden Nancy Young and Warden Pamela Fueshko (Winter & Winkler, P.C., attorneys; Mr. Winter, on the brief).

PER CURIAM

Plaintiff is the executive director of a shelter program, St. Peter's Haven for Families (Haven), which is run by St. Peter's Episcopal Church in Clifton. Defendant Peter DeFranco is an Episcopal priest assigned to St. Peter's Church who works in the Haven program.

In 2006, Haven's board of trustees voted to compensate DeFranco by paying his rent; however, DeFranco apparently never received any tax reporting documents reflecting that compensation. Plaintiff became convinced that DeFranco was receiving improper payments that should be reported as income to him, and she questioned several Haven officers about the matter.

In 2008, plaintiff prepared a budget for Haven that reflected the rent paid on behalf of DeFranco as salary. DeFranco thereupon ordered plaintiff to remove his name from the budget. The working relationship between plaintiff and DeFranco deteriorated from that time on.

On or about January 22, 2009, plaintiff filed a complaint against Haven, St. Peter's, the Episcopal Diocese of Newark, Father DeFranco and others, claiming that she suffered certain retaliatory employment actions as the result of her efforts to address what she considered a serious issue involving DeFranco. Specifically, she alleged that on various dates between March 24 and July 24, 2008, DeFranco "rebuked [her] for her job performance"; "gave out [her] personal cell phone number to a Haven client"; "rebuke[d] her repeatedly asking about tasks that were performed by an employee of the church"; "angrily berated [her] about putting a[n] . . . item on the Board [a]genda"; "mentioned that a 'performance evaluation needs to be done' for [her]" during a Board retreat; "ignored [her] . . . [and] complained . . . that [she] was being 'cold' to him and deliberately ignoring him"; made her "feel afraid . . . [and] intimidated by him"; "in the presence of a co-worker, . . . started an argument with [her,] . . . call[ing her] a liar"; threatened that "he would put negative comments in her evaluation"; and on one occasion, "physically blocked her and would not let her out of the Haven office, causing physical contact."

Plaintiff had complained to various church officials who offered to arrange a meeting between plaintiff and DeFranco "to see if they could 'iron out [their] differences and clear the air.'" In September 2008, Haven agreed to terminate the "rent" paid to DeFranco. However, plaintiff alleged that "[n]either . . . Haven, St. Peter's Episcopal Church nor the Diocese of Newark resolved the retaliatory harassment and threats to [her] by Father DeFranco."

Plaintiff's complaint alleged violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; assault; and defamation. She now appeals two orders entered by the trial court on May 28, 2009; the first granted Haven's motion to dismiss the complaint for failure to state a cause of action pursuant to Rule 4:6-2(e), and the second granted summary judgment to all other defendants. In her brief, plaintiff addresses only the dismissals of her CEPA and defamation claims; she does not address dismissal of the assault claim in count two of her complaint. We affirm.

It is undisputed that plaintiff was not terminated, demoted, or subject to a reduction in pay or any other benefits of her position. Under these circumstances, we are satisfied that the trial court properly dismissed her CEPA claim, finding:

The [p]laintiff was not discharged, did not suffer a reduction in rank, compensation or title, was not terminated, suspended or demoted, nor were [d]efendant's [sic] actions a change in the terms or conditions of her employment. She suffered no disciplinary action but simply complains of actions that made her job unpleasant, such as being rebuked and berated and having her private cell phone number given to a client.

. . . .

Discipline and criticizing an employee are well within practices that are allowable to employers and . . . not every employment action that makes an employee unhappy constitutes . . . "an actionable adverse action[]" . . . .

Allegations of retaliatory conduct that make a person's job unpleasant and do not result in a substantial impact in any of the [p]laintiff's working conditions or cause a de facto termination are insufficient to constitute unlawful retaliation . . . .

With respect to plaintiff's defamation claim, the judge noted that she was obliged to prove "a false and defamatory statement concerning the [p]laintiff; an unprivileged publication to a third party; fault amounting to at least negligence on the part of the publisher[;] and damages." Noting that a "claim for defamation must be pled with specificity[,]" the judge found "nothing that's been proffered . . . that would lead [him] to conclude that what was done here constitutes defamation."

In support of her CEPA claim, plaintiff relies upon Nardello v. Twp. of Voorhees, 377 N.J. Super. 428 (App. Div. 2005), and asserts on appeal that "the lower court's analysis of [this] case was unduly restrictive . . . ." We disagree.

In Nardello, the plaintiff was a police officer in the Voorhees Township Police Department who resisted what he believed were improper investigatory assignments; he also reported another officer for improper use of a K-9 dog, and complained that "department personnel procedures were being routinely violated." Id. at 431-32. As a result of these actions, plaintiff claimed that "he was 'wrongfully removed from the detective bureau, . . . and ultimately had all of his authority and responsibility taken away, such that plaintiff, even though a lieutenant, supervised no one.'" Id. at 432. Other adverse actions claimed by the plaintiff included being

given demeaning jobs for his rank; removing and installing an alarm in the stairwell; performing maintenance of toilets; performing background investigations; and overseeing a building project. He was not permitted to work on assignments customarily under a lieutenant's job title.

[Ibid. ]

The plaintiff also claimed that he was "denied permission to obtain firearms instructor training relative to his membership on the SWAT team; coerced to resign as leader and a member of the SWAT team[;] [and] denied the ability to work on crime prevention programs . . . ." Id. 435.

The plaintiff appealed from the grant of summary judgment to the defendant, and we reversed. Under those circumstances, we concluded that "while plaintiff was not discharged, suspended or demoted, when the facts are viewed in a light most favorable to him, a jury could draw an inference that he suffered a series of adverse retaliatory actions by his employer." Ibid. We noted that "while many of the incidents are relatively minor, plaintiff has made a prima facie case and a jury could conclude that they combine to demonstrate a pattern of retaliatory conduct that is specifically prohibited." Id. at 436.

The factual distinctions between Nardello and this case render that decision inapposite to plaintiff's position. As noted, unlike the plaintiff in Nardello, plaintiff suffered no adverse action that in any way impacted upon her employment status, job responsibility, or authority. No such allegations are set forth in her complaint.

Plaintiff's reliance upon Green v. Jersey City Bd. of Educ., 177 N.J. 434 (2003), for the proposition that "there does not have to be a single action taken against an employee if he can show that there are many separate but relatively minor events of adverse actions[,]" is misplaced. To the extent that the Court addressed that factual predicate, it was in the context of discussing "'a hostile work environment claim [that would fall within the continuous tort doctrine]'" respecting a claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Id. at 446-47. This holding lends no support to plaintiff's CEPA claim. The other cases upon which plaintiff relies in support of her argument are also factually distinguishable to a degree that renders them irrelevant to her position.

Plaintiff's claim that her defamation count was improperly dismissed is "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(1)(E). The trial court properly "differentiate[d] between defamatory statements and 'obscenities, vulgarities, insults, epithets, name-calling, and other verbal abuse[,]'" which "are not actionable." DeAngelis v. Hill, 180 N.J. 1, 14 (2004) (quotation omitted).

We are satisfied that the trial judge properly dismissed the complaint as to Haven pursuant to Rule 4:6-2(e). No "fundament of a cause of action may be gleaned" from the allegations in that pleading. Printing Mart v. Sharp Electronics, 116 N.J. 739, 746 (1989).

The remaining defendants also filed a motion to dismiss pursuant to Rule 4:6-2(e). However, because they submitted affidavits and exhibits in support of their motion, the judge considered it as a motion for summary judgment pursuant to the provision in Rule 4:6-2, that if "matters outside the pleading are presented to and not excluded by the court" on a dismissal motion brought under section (e), "the motion shall be treated as one for summary judgment . . . and all parties shall be given reasonable opportunity to present all material pertinent to such a motion." Defendants submitted affidavits denying that Father DeFranco's rent was paid by any of them on his behalf; the Chancellor of the Diocese submitted an affidavit stating that the Diocese had no "authority over any of the finances of St. Peter's Episcopal Church or of [Haven]." Plaintiff did not file any affidavits or documents in opposition.

[I]f the opposing party offers no affidavits or material in opposition, or only facts which are immaterial or of an insubstantial nature, . . . [s]he will not be heard to complain if the court grants summary judgment, taking as true the statement of uncontradicted facts in the papers relied upon by the moving party, such papers themselves not otherwise showing the existence of an issue of material fact.

[Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).]

Summary judgment is appropriate "if the pleadings . . . together with the affidavits . . . show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to judgment as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We are satisfied that the record here supports the grant of summary judgment to these defendants.

 
Affirmed.

(continued)

(continued)

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A-5340-08T1

July 22, 2010