YOGANAND KUMAR v. STATE OF NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILY SERVICES DIVISION OF YOUTH AND FAMILY SERVICES, and SUSAN MAMMOCCIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3114-10T4

YOGANAND KUMAR,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, DEPARTMENT

OF CHILDREN AND FAMILY SERVICES,

DIVISION OF YOUTH AND FAMILY

SERVICES, and SUSAN MAMMOCCIO,

Defendants-Respondents.

__________________________________________________

February 16, 2012

Argued January 24, 2012 - Decided

Before Judges Fisher, Baxter and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-558-09.

David A. Gies argued the cause for appellant.

Ryan C. Atkinson, Deputy Attorney General, argued the cause for respondents (Jeffrey S. Chiesa,Attorney General,attorney; Melissa H. Raksa, AssistantAttorney Generaland Debra M. McGarvey,Deputy AttorneyGeneral, of counsel; Eric M. Snyder, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Yoganand Kumar commenced this action, pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, claiming, among other things, that defendants retaliated against him because of a settlement of his prior LAD claim. He now argues in this appeal that summary judgment was inappropriately entered against him. We find no merit to plaintiff's arguments because his transfer from his employer's Gloucester office to its Salem office cannot, as a matter of law, constitute adverse employment action.

Because the ground upon which we affirm is narrow, we need only briefly outline the circumstances that gave rise to this suit. In December 2005, plaintiff and his employers -- defendants Department of Children and Family Services and Division of Youth and Family Services (DYFS) -- settled plaintiff's first LAD action. Their settlement agreement called for, among other things, plaintiff's "return[] back to DYFS in the capacity of an FSS [Family Service Specialist] Trainee position at the Gloucester District Office." Pursuant to the settlement, in early 2006, plaintiff began working in DYFS's Gloucester office under the supervision of defendant Susan Mammoccio. She claimed in this action that she had no prior knowledge about plaintiff, his earlier lawsuit, or its settlement. According to Mammoccio, plaintiff behaved bizarrely, bringing her unwanted gifts of food, drink, cigars, a large chicken, and a cooler full of crabs and shrimp. Plaintiff also made sexual remarks, commenting on Mammoccio's dress and appearance in front of co-workers and during court appearances, suggesting she was wearing tight or overly-revealing clothing.

On June 27, 2006, Mammoccio emailed her supervisors, advising of what she believed was plaintiff's inappropriate behavior and remarks. The email refers to her having made earlier complaints; she stated she had not supplied the further detail her supervisors requested when she previously complained because she was desirous of giving plaintiff a second chance. Mammoccio also stated in the email that she realized her earlier reticence had been a mistake because plaintiff's inappropriate behavior had continued; she asked for directions regarding what had to be done in order to "fail" plaintiff during his probationary period.

In September 2006, Mammoccio was reassigned and ceased being plaintiff's supervisor; notwithstanding, plaintiff continued to act inappropriately with respect to Mammoccio. For example, on March 16, 2007, an employee informed Mammoccio that plaintiff told another employee that he intended to invite Mammoccio and her cousin, who also worked in the Gloucester office, to visit him in Atlantic City, get them drunk, and have sexual relations with them. Mammoccio testified at her deposition that plaintiff did, in fact, call her and invited her and her cousin to Atlantic City at that time. An internal investigation resulted in a recommendation that plaintiff be directed to cease and desist from contacting staff outside the workplace and that he be monitored to ensure his compliance with departmental policies.

In May 2007, however, Mammoccio notified the investigator that plaintiff had continued to harass her and told other employees that he was out to get Mammoccio and intended to file a complaint against her. According to Mammoccio, in June 2007, plaintiff approached Mammoccio s two-and-one-half year old daughter, who was in the office, handed her a candy bar and told her to give it to Mammoccio. As a result, plaintiff was directed to have no further contact with Mammoccio but, according to Mammoccio, he approached and spoke to her on a number of subsequent occasions.

Ultimately, Mammoccio submitted a formal internal complaint and, soon thereafter, a discrimination complaint with the New Jersey Department of Personnel, alleging plaintiff was sexually harassing her; she included in her complaints, among other things, details of the Atlantic City matter. Mammoccio's cousin also filed a complaint. As a result, plaintiff was transferred to DYFS's Salem office in Carney's Point.

Plaintiff commenced this action in 2009, claiming a violation of the LAD -- based on alleged retaliation for his prior LAD action -- as well as breach of contract and tort claims. Upon the completion of discovery, defendants filed a motion for summary judgment that was granted on January 26, 2011.

Plaintiff appealed, presenting the following arguments:

I. KUMAR RAISED A QUESTION OF FACT AS TO WHETHER THE DIVISION INTENDED TO RETALIATE AGAINST HIM FOR PREVIOUSLY FILING A DISABILITY DISCRIMINATION COMPLAINT WHERE IT APPEARS TO HAVE DEVISED A SCHEME TO FAIL HIM SHORTLY AFTER HIS ASSIGNMENT TO THE GLOUCESTER OFFICE WHICH WAS FOLLOWED BY A PATTERN OF ANTAGONISM TOWARDS HIM.

II. AN ADVERSE EMPLOYMENT ACTION OCCURS WHERE THE RETALIATION AFFECTS ADVERSELY AN EMPLOYEE'S EMPLOYMENT STATUS AND NEED NOT RESULT IN A MONETARY LOSS.

III. WHERE THE EVIDENCE REASONABLY REVEALS THAT THE DIVISION WANTED KUMAR TO FAIL DURING HIS PROBATIONARY PERIOD, MAMMOCCIO'S CONDUCT PRESENTS A QUESTION OF FACT AS TO WHETHER HER SEXUAL MISCONDUCT COMPLAINT AGAINST KUMAR WAS PART OF THE SCHEME.

IV. THE TRIAL COURT WRONGFULLY DISMISSED AS MOOT KUMAR'S COMMON LAW AND CONTRACTUAL CLAIMS WHICH IT SHOULD HAVE RESOLVED SEPARATE AND APART FROM HIS STATUTORY CLAIM.

V. THE WRONGDOER'S CONDUCT WAS ESPECIALLY EGREGIOUS WHERE THE EVIDENCE REASONABLY SUGGESTS THAT SHE CONTRIVED KUMAR'S ALLEGED HARASSMENT AS PART OF A SCHEME TO FAIL HIM.

Because we reject plaintiff's argument in Point II that he suffered adverse employment action, we need not reach the arguments contained in Points I, III and V. We also find insufficient merit in plaintiff's Point IV to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Indeed, we also find insufficient merit in plaintiff's Point II to warrant discussion in a written opinion, ibid., adding only the following brief comments.

A prima facie claim of retaliation in violation of the LAD, requires proof that "(1) [plaintiff] engaged in a protected activity known by the employer; (2) thereafter [the] employer unlawfully retaliated against [plaintiff]; and (3) [plaintiff's] participation in the protected activity caused the retaliation." Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125 (2008). The second prong requires proof of adverse employment action. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193, n.1 (1988); El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005); Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). Adverse employment action is understood as encompassing "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 2268, 141 L. Ed. 2d 633, 652-53 (1998). Proof of a reassignment to a more inconvenient job is not sufficient. Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (1994). In light of these authorities, plaintiff's argument of adverse employment action in that he was transferred from the Gloucester office to the Salem office is without merit. The record reveals there was no loss of rank, compensation or benefits, only a one-half mile increase in the distance plaintiff must now travel from home to his place of work. We agree with the trial judge that this negligible impact cannot form the basis for a claim of adverse employment action. Accordingly, we need not reach the question of whether plaintiff provided sufficient evidence to support the other elements of his alleged retaliation claim; plaintiff's inability to prove adverse employment action compelled the entry of summary judgment in defendants' favor.1

1We would lastly note that plaintiff's LAD claim, as well as his breach of contract claim, were also based on his argument that the settlement of his earlier LAD action prohibited his transfer elsewhere. In fact, the settlement agreement only stated that plaintiff would be "returned back to DYFS in the capacity as an FSS Trainee position at the Gloucester District Office as soon as practicle [sic]." DYFS complied with this aspect of the agreement; there is nothing about this language that would suggest plaintiff's entitlement to permanently work in the Gloucester office any more than the language would sensibly suggest that he should forever hold the position of trainee. The agreement only stated the circumstances of plaintiff's return to employment; once restored to employment, DYFS was entitled to treat him as any other employee.