CYNTHIA LOVETT v. FLEMINGTON-RARITAN REGIONAL BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CYNTHIA LOVETT,

Plaintiff-Appellant,

 

v.

 

FLEMINGTON-RARITAN REGIONAL BOARD OF EDUCATION, KATHY SUCHORSKY, GREGORY NOLAN, and WANDA QUINONES,

 

Defendants-Respondents,

 

and

 

FLEMINGTON-RARITAN EDUCATION ASSOCIATION, FRANK CORIGLIANO, and KARIN DENEKA,

 

Defendants.

 

November 6, 2013

 

Argued October 7, 2013 - Decided

 

Before Judges Parrillo, Harris and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-681-10.

 

Kenneth W. Thomas argued the cause for appellant (Lanza & Lanza LLP, attorneys; John R. Lanza, of counsel; Mr. Thomas, on the briefs).

 

James M. McCreedy argued the cause for respondents (Wiley Malehorn Sirota & Raynes, attorneys; Mr. McCreedy, of counsel; Mr. McCreedy and Erica M. Clifford, on the brief).

PER CURIAM

Plaintiff Cynthia Lovett appeals from the summary judgment dismissal of her complaint alleging age discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 6-2 (LAD), and other related claims. We affirm.

Because this matter comes to us from the motion court's grant of summary judgment in favor of defendants, the Flemington-Raritan Regional Board of Education, Kathy Suchorsky, Gregory Nolan and Wanda Quinones (the moving parties), we view the evidence in the light most favorable to plaintiff. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012).

At the time of her resignation on June 24, 2010, plaintiff was a fifty-seven year old math and science teacher at the Reading-Fleming Intermediate School, tenured since 1993. Plaintiff's step-granddaughter, A.M., was a student at the same school. A.M.'s stepmother Megan plaintiff's daughter had a history of aggressive, hostile confrontations with school staff concerning custody issues related to A.M. Because of these incidents, the school principal, defendant Kathy Suchorsky, directed the vice-principal, defendant Wanda Quinones, and main office staff to prohibit Megan from entering the school building past the main office located by the front entrance.1 Moreover, according to the school district's general policy regarding school visitors, the "Superintendent and building principal each possess the authority to prohibit the entry of any person into a school of this District, or to expel any person from the school when there is reason to believe the presence of such person would be detrimental to the good order of the school." Furthermore, "[p]ersonal access to school buildings and grounds outside the hours school is in session shall be limited to personnel whose employment requires their presence in the facility." These policies were included in school employee handbooks and discussed with the staff.

At around 10:00 a.m. on June 23, 2010, the day before plaintiff resigned, school administrators found scratches on A.M., which the child said were inflicted by Megan. Vice- Principal Quinones then informed plaintiff about the injuries and asked her to take A.M. home at the end of the day,2 but plaintiff refused and told her to call Megan instead. Megan ultimately arrived at the front entrance of the school, which is locked, and equipped with a buzzer, intercom and security cameras. Plaintiff let Megan in at her request.3 While plaintiff then left to attend a teachers' luncheon, Megan walked down to the guidance office where A.M. was with Quinones and started yelling and demanding to know what was going on. By then, police had arrived and escorted Megan out of the building.

The following day, Principal Suchorsky met with plaintiff to discuss the incident. According to Suchorsky, the sole purpose of the meeting was to ascertain plaintiff's version of the events and thus the forty-eight hour notice required by the collective bargaining agreement between the Board of Education and the teachers' union when the meeting is called for the purpose of formal discipline, did not apply in this instance.4 At the meeting, plaintiff initially denied having any knowledge Megan was not allowed in the building or that her daughter was suspected of being responsible for A.M.'s injuries. As plaintiff's version was at odds with what she had been told earlier by Vice-Principal Quinones, Suchorsky at that point had union representatives Karin Deneka and Frank Corigliano, who had been notified the previous afternoon to make themselves available, attend the meeting.

In front of her union representatives, plaintiff admitted that she let Megan into the school and that she "felt that [Megan] had a right to be with her daughter." According to plaintiff, she "must have claimed that [she] had done what [she] thought was in A.M.'s best interest" and continued to maintain that she did not know she was not allowed to let Megan into the school.

The parties' accounts of what then transpired at the meeting differ. According to Suchorsky, she advised plaintiff that she would have to refer the matter to the Superintendent's office because of the serious safety issues raised by plaintiff's behavior,5 and also raised the possibility of the Board of Education bringing tenure charges against plaintiff. When plaintiff then asked the union representatives what her options were, they explained that she could choose to resign, or do nothing and risk the Board bringing tenure charges against her. At that point, at plaintiff's request, Suchorsky left the meeting to obtain a sample resignation letter, which she showed to plaintiff when she returned fifteen minutes later.

Plaintiff, on the other hand, claimed Suchorsky said she was going to refer the matter to the Board for tenure charges and take the matter "as far as I can take it," and that if plaintiff did not resign, she would face public humiliation and lose her job and pension. In fact, according to Corigliano's notes from the meeting, "as far as I can take it" and "think about retirement", refer to Suchorsky telling plaintiff she was going to take the matter as far as she could, i.e., tenure charges, and that plaintiff should consider retiring in lieu of disciplinary charges. According to both union representatives, plaintiff was upset and cried during the meeting, which they described as tense and emotional. Plaintiff denied ever requesting to see a sample resignation letter.

In any event, in the fifteen minutes that Suchorsky was away having the sample resignation letter typed up, plaintiff was able to consult with her union representatives privately. They informed her that after tenure charges were certified, the matter would go public, to which plaintiff responded that she did not want to go through that ordeal. They offered plaintiff the alternative of conferring with an attorney and taking time to think it over, but she declined, although plaintiff denies this option was ever presented to her.

When Suchorsky returned with the resignation letter, plaintiff signed it with the intention of resigning. Suchorsky explained to plaintiff that the resignation letter would become binding when presented to the Board at its next meeting. According to Suchorsky, at the end of the meeting, she offered plaintiff the rest of the day off to think everything through and consult with her husband, but plaintiff decided to spend the remainder of the day with her students in the classroom. A copy of the resignation letter was given to plaintiff, and Suchorsky made another copy for the union.

The Board formally accepted plaintiff's resignation at its next regularly scheduled meeting on June 28, 2010. Superintendent Gregory Nolan notified plaintiff of the Board's acceptance of her resignation by letter dated June 29, 2010.

Shortly thereafter, in a meeting with Megan and her attorney, plaintiff supposedly had second thoughts about her decision to retire. On June 30, 2010, Megan's attorney sent a letter to Suchorsky on plaintiff's behalf requesting that plaintiff's resignation be held "in abeyance" pending his consultation with plaintiff scheduled for July 8, 2010. The Board's attorney responded by letter dated July 27, 2010, explaining that plaintiff was no longer an employee of the school district and therefore could not rescind her resignation, as the Board's formal acceptance was binding.

While plaintiff admitted that throughout her employment, no school administrators, staff or Board members ever made any negative or discriminatory remarks to her about her age, she nevertheless maintains that she was forced into retiring not because of the incident with Megan, but because the school district was facing budget constraints and she was a fifty-seven year old teacher with a relatively high salary.6 Actually, at an April 1, 2010 Board meeting concerning the Superintendent's recommended 2010-2011 budget, the only proposed staff reductions at Reading-Fleming Intermediate School were for two music teachers and one physical education teacher. In May 2010, about a month before plaintiff resigned, the Board announced its intention to fire more than sixty-five school aides and replace them through an outside agency to meet a $1.5 million budget reduction. Business Administrator and Board Secretary Stephanie Hope testified that after the budget was defeated by voters, the school district and municipalities agreed to make cuts in the areas of maintenance, transportation, and projection of increased revenues. The 2010-2011 budget was approved and submitted to the State on May 26, 2010, approximately one month before plaintiff's resignation.

Plaintiff was replaced by a twenty-two year old recent college graduate who had spent the previous year student- teaching at the school, at a lower salary. According to plaintiff's liability expert:

Suchorsky exploited a minor event to coerce the retirement of an emotionally distraught, tenured teacher the Board could never otherwise remove. Suchorsky's motivation was to circumvent Plaintiff's contractual rights to eliminate an older, more experienced teacher and replace her with a younger teacher to ingratiate herself with a cash-strapped school board. The Defendants' stated reasons for the coerced retirement of [plaintiff] are not only pretextual, but illegitimate. Thus, Suchorsky and the Board engaged in age discrimination . . . .

 

On October 13, 2010, plaintiff filed a ten-count complaint against the Board, the superintendent, principal and vice- principal, alleging age discrimination in violation of the LAD, civil conspiracy, wrongful termination, breach of the covenant of good faith and fair dealing, negligence, interference with expected economic advantage, negligent and intentional infliction of emotional distress, constructive discharge and tortious interference with expected contractual relations. Following defendants' answers and discovery, defendants moved for summary judgment. The court granted this relief, dismissing plaintiff's age discrimination claim for want of any proof of an adverse employment action, and dismissing plaintiff's other claims for failure to file a tort claim notice under the Tort Claims Act, N.J.S.A. 59:8-1 to 12-3. As to the former, the motion court reasoned:

[P]laintiff has not alleged outrageous, coercive or unconscionable conditions to constitute a prima facie constructive discharge claim.

 

While [plaintiff's] meeting with the principal may have been uncomfortable, [plaintiff] does not establish a condition of discrimination in employment so intolerable that a reasonable person would resign. At worse, the confrontation, during this 45 minute meeting, prodded [plaintiff] to make a regrettable decision to resign

. . . .

 

Plaintiff signed a resignation letter when she had two of her union representatives at her disposal and could have consulted an attorney [as the union representatives suggested,] and, as I said, had school vacation looming before her.

 

As to all other claims, the court concluded:

The [Board] never received a notice of claim by [plaintiff] in reference to her actions that she was going to take here. And there's nothing before the Court that shows that sometimes notice of claim is waived because of emotional duress, illness, person was in an accident, they're too sick to consult with an attorney, or any of those things. None of those things were argued here; and, therefore, there's no question that that notice of claim was not met.

 

On appeal, plaintiff raises the following issues:

I. THE LOWER COURT COMMITTED REVERSIBLE ERROR BY INEXLICABLY DEPARTING FROM ESTABLISHED PRECEDENT BY GRANTING SUMMARY JUDGMENT DISMISSING PLAINTIFF'S CLAIM OF AGE DISCRIMINATION BASED UPON AN ERRONEOUS DETERMINATION PLAINTIFF COULD NOT SHOW DEFENDANT TOOK AN ADVERSE EMPLOYMENT ACTION AGAINST HER

 

. . . .

 

II. THE LOWER COURT ABUSED ANY DISCRETION IT HAD BY IMPROPERLY REFUSING TO PERMIT PLAINTIFF TO AMEND HER COMPLAINT IN SPITE OF WELL ESTABLISHED CASE LAW REQUIRING AMENDMENTS TO BE LIBERALLY GRANTED WITHOUT CONSIDERATION OF THE ULTIMATE MERITS OF THE CLAIMS

 

III. THE LOWER COURT COMMITTED REVERSIBLE ERROR BY DISMISSING PLAINTIFF'S NON-LAW AGAINST DISCRIMINATION CLAIMS

 

 

I.

 

Plaintiff argues that the motion court erred in finding that she did not establish a prima facie case of age discrimination under the LAD because of her failure to demonstrate an adverse employment action. Plaintiff contends that although she resigned, her resignation was coerced by threats of disciplinary action, public humiliation and loss of tenure and benefits, and that this "constructive discharge" qualified as an adverse employment action. We disagree.

We review a trial court's grant of summary judgment de novo, applying the same standard as the trial court. Turner v. Wong, 363 N.J. Super 186, 198-99 (App. Div. 2003). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998).

The LAD prohibits employers from discriminating against employees or job applicants on the basis of age when making hiring or termination decisions. N.J.S.A. 10:5-3; N.J.S.A. 10:5-12(a). In the context of an age discrimination claim, a plaintiff must first establish a prima facie case by showing

1) he or she belonged to a protected class by reason of his or her age; 2) he or she was performing the job to the employer's satisfaction; 3) he or she was subjected to some adverse employment action; and 4) he or she was replaced by someone young enough to warrant an inference of age discrimination.

 

[Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 482 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009) (emphasis added).]

 

A plaintiff's "evidentiary burden at the prima facie stage is rather modest: it is to demonstrate to the court that plaintiff's factual scenario is compatible with discriminatory intent -- i.e., that discrimination could be a reason for the employer's action." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (internal quotations omitted). A plaintiff's prima facie case "is to be evaluated solely on the basis of the evidence presented by the plaintiff, irrespective of defendants' efforts to dispute that evidence." Id. at 448.

Because of the difficulty of proving that an employer was motivated by a discriminatory intent in making a personnel decision, New Jersey has adopted the burden-shifting analysis articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Zive, supra, 182 N.J. at 447. Therefore, after the plaintiff establishes his or her prima facie case, creating an inference of discrimination, the burden of production shifts to the defendant to "articulate a legitimate, nondiscriminatory reason for the employer's action." Zive, supra, 182 N.J. at 449 (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988)). Finally, "the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Ibid. To prove pretext, "a plaintiff may not simply show that the employer's reason was false but must also demonstrate that the employer was motivated by discriminatory intent." Ibid.; Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). At all times, however, the burden of proving that the employer engaged in intentional discrimination remains with the employee. Clowes, supra, 109 N.J. at 596.7

With respect to the "adverse employment action" element of a plaintiff's prima facie case, the LAD provides that it is unlawful for an employer, on the basis of certain characteristics of an employee including age, to "refuse to hire or employ or to bar or to discharge or require to retire . . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.J.S.A. 10:5-12(a).

In a typical discrimination claim, the adverse employment action is the employer's refusal to hire, or termination of, the aggrieved employee. However, employer actions that do not rise to this level, such as "constructive discharge" in the case of an employee who resigns, may qualify as adverse. "Generally, a constructive discharge under the LAD occurs when an employer knowingly permit[s] conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 27-28 (2002) (internal quotations omitted).

The standard for constructive discharge is stricter than that for a hostile work environment claim, which "requires 'severe or pervasive' conduct that objectively 'alters the conditions of employment' and is 'hostile or abusive.'" Shepherd, supra, 174 N.J. at 28. "[C]onstructive discharge requires not merely 'severe or pervasive' conduct, but conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it." Ibid. Intolerable conduct means conduct that "conveys a sense of outrageous, coercive and unconscionable requirements." Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 428 (App. Div. 2001). In fact, an employee claiming constructive discharge

has the obligation to do what is necessary and reasonable in order to remain employed rather than simply quit. A trial court should consider the nature of the harassment, the closeness of the working relationship between the harasser and the victim, whether the employee resorted to internal grievance procedures, the responsiveness of the employer to the employee's complaints, and all other relevant circumstances.

 

[Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 420 (App. Div. 2001), rev'd on other grounds, 174 N.J. 1 (2002).]

In Shepherd, the plaintiffs alleged that their employer began a pattern of ill treatment because of the position the plaintiffs took in a lawsuit against the employer, which included excluding them from a staff Christmas party, making threatening statements such as "what goes around comes around and you will be sorry for not writing better statements for us concerning the lawsuit," and supervising them more strictly than other employees. Shepherd, supra, 174 N.J. at 9-11. The employer also brought disciplinary charges against one of the plaintiffs, which were dismissed based upon the hearing officer's conclusion that the allegations were uncorroborated. Id. at 15. In reversing our finding that there was a genuine factual dispute as to whether the plaintiffs had been constructively discharged, the Court concluded that a jury could not reasonably find that the employer's conduct was so unbearable that a reasonable person would be forced to retire, and that the plaintiffs failed to "do all that was reasonably necessary to remain employed," such as attend a counseling session called by the company's superintendent to discuss their internal complaint. Id. at 28-29.

Thus, the filing of a disciplinary action, in and of itself, is not sufficient to qualify as an adverse employment action. Id. at 26. Similarly, an employer's investigation of potential employee misconduct does not rise to the level of an adverse employment action; "[o]nly when the investigation results in some real detriment, such as a suspension, demotion, or termination, should the aggrieved employee be able to invoke the protection of the LAD." Spinks, supra, 402 N.J. Super. at 484.

Measured against this yardstick, we are satisfied no factfinder would reasonably conclude that plaintiff was subjected to conditions so intolerable that she was forced to resign. While perhaps tense and emotional, the meeting called by Principal Suchorsky was fully justified due to legitimate and genuine safety concerns engendered by plaintiff's conduct the day before. Although plaintiff denies that she was ever informed that her daughter Megan was not allowed to enter the building, it is undisputed that plaintiff allowed Megan into the school against school policy, and that Megan had a history of aggressive confrontations with school personnel and was suspected of abusing her own stepdaughter.

For the very same reasons, there would have been a legitimate basis for Suchorsky to refer the matter to the Board for further investigation and possible discipline. The mere mention of this prospect, however, was not, in itself, an adverse employment action since there was no actual change to plaintiff's employment status at that point. Indeed, the matter had not then been reported to the Board and no formal investigation had been commenced let alone charges lodged against plaintiff.

On this score, although considered threatening by plaintiff, Suchorsky candidly advised plaintiff of the potential consequences if she were to remain employed. Plaintiff then had the opportunity to consult with her union representatives in private about these consequences and thereafter freely and knowingly submitted her resignation. Nothing in the facts and circumstances surrounding Suchorsky's meeting with plaintiff can reasonably be said to constitute conduct so outrageous as to amount to a constructive discharge.

We emphasize that at the point she submitted her letter of resignation, plaintiff was faced with neither demotion nor discharge nor other discipline, but simply an investigation into her conduct the day before. If the filing of a disciplinary action, in and of itself, does not rise to the level to qualify as an adverse employment action, Shepherd, supra, 174 N.J. at 26, then a fortiori the mere prospect of an investigation into potential employee misconduct falls even shorter of the mark. As we noted in Shepherd, supra, to support a claim of constructive discharge, the employee "has the obligation to do what is necessary and reasonable in order to remain employed rather than simply quit." 336 N.J. Super. at 420. Here, instead of awaiting the outcome of a potential Board investigation and confronting whatever charges may have arisen therefrom, plaintiff voluntarily chose to quit. Considering all the facts and circumstances in a light favorable to plaintiff, her claim of constructive discharge is simply unsupported.

Plaintiff nevertheless contends that she should have been permitted to withdraw her resignation, citing Evaul v. Bd. of Educ., 35 N.J. 244 (1961). However, that case is clearly distinguishable. The plaintiff in Evaul also was a teacher who had an unblemished disciplinary record. Id. at 245. She complained that she was overloaded with work, and a "heated and acrimonious" meeting with school administrators followed during which plaintiff appeared "nervous, excited and distraught" and at one point was crying. Id. at 246. After the meeting, she supervised a study period and felt "dazed," "shocked" and "discouraged" and later that afternoon went to the superintendent's office and, in spite of the superintendent's repeated advice to think it over and not act hastily, submitted a letter offering her resignation. Id. at 247. At a meeting scheduled for that evening, the school board accepted the plaintiff's resignation. Id. at 248. Two days later, the plaintiff attempted to rescind her resignation to no avail. Id. at 248-49.

Although the Court did not find that the school officials' conduct amounted to duress, it concluded that "the peculiar circumstances of this case require the reinstatement of the [plaintiff] on equitable principles." Id. at 249. The Court stated that the plaintiff's "submission of her resignation was an impetuous act prompted by her understandably distraught condition" and noted "the fortuitous circumstance that a special meeting of the school board had, unknown to her, previously been scheduled for a few hours after she wrote her resignation." Ibid. The Court went on to state that "in the unusual circumstances of this case, it is unduly harsh for [plaintiff] to lose rights acquired during the many years she served as a teacher in the Camden school system." Id. at 250.

Unlike plaintiff here, the teacher in Evaul attempted to rescind her resignation only two days after it had been accepted at a meeting, of which she was not aware, scheduled only hours after she had resigned. As noted, the Court stressed that its decision to reinstate plaintiff rested on the unusual factual circumstances of the case. Id. at 249-50.

Here, while plaintiff also resigned at the end of a tense and emotional meeting with a school official, her resignation was not formally accepted by the Board until four days later on June 28, 2010, and plaintiff was notified of the Board action by letter dated June 29, 2010. It was not until June 30, 2010, however, that plaintiff's attorney sent Suchorsky a letter requesting that plaintiff's resignation be held in abeyance. Significantly, that correspondence was not a request to rescind plaintiff's letter of resignation, but merely sought to suspend the Board action until plaintiff had an opportunity to consult further with counsel the following week. Absent here are the rather compelling, unique circumstances presented in Evaul that warranted the equitable remedy fashioned in that case. No such result is required here.

Plaintiff's failure to establish a prima facie case of age discrimination makes it unnecessary for us to consider whether plaintiff has produced sufficient evidence of discriminatory intent, that is, for a jury to find that defendants' legitimate, non-discriminatory explanation was merely a pretext for the asserted real reason, namely plaintiff's age. Nevertheless, for the sake of completeness, we address the issue.

As noted, plaintiff can show pretext by producing evidence from which a jury could disbelieve defendants' proffered reason, or from which the jury could find that discrimination was more likely than not a contributing factor. Zive, supra, 182 N.J. at 455-56. We have emphasized that these are alternative methods of showing pretext. DeWees v. RCN Corp., 380 N.J. Super. 511, 528-29 (App. Div. 2005). That is, even if a plaintiff does not adduce evidence that discrimination was more likely than not a motivating cause of the plaintiff's discharge, "a jury is permitted to infer discrimination on the basis of a rejection of defendants' reasons together with plaintiff's prima facie case." Ibid. In DeWees, which involved a sex discrimination claim, we found the trial judge erred in granting the defendants' summary judgment motion on the grounds that the defendants' "preferential treatment of young men, reassigning them to other positions instead of discharging them for unsatisfactory performance, [was] insufficient to constitute 'an LAD violation,'" because that evidence discredited the defendants' explanation that they terminated the female plaintiff for unsatisfactory performance. Id. at 529.

Plaintiff's essential "pretext" argument is that defendants sought to compel her to resign to save money, and accordingly produced evidence of plaintiff's relatively high salary and a budget crisis facing the district. Plaintiff argues that because teachers' pay is tied to their experience, then salary and age are "proxies" for each other. Therefore, discharging a high-salaried employee is evidence of discriminatory intent. But even accepting plaintiff's expert's conclusion that salary is a proxy for age and that fiscal considerations were a consideration in plaintiff's alleged forced resignation and replacement with a recent college graduate, an employee's salary can be a separate and distinct consideration from the employee's age, even if the two are correlated. New Jersey courts have recognized cost reduction measures and employees' salaries as legitimate considerations in making termination decisions. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 219 (1999); Young v. Hobart W. Grp., 385 N.J. Super. 448, 459-60 (App. Div. 2005).

Here, plaintiff has not come forward with any competent evidence that age, rather than or in addition to financial concerns, motivated defendants to compel plaintiff's resignation. Plaintiff admitted that neither Suchorsky nor any other school administrators, staff or Board members ever made negative or discriminatory remarks to her about her age throughout her employment with the district. In addition, Suchorsky apparently is the same age as plaintiff and thus herself a member of the same protected class. While not dispositive, this tends to negate discriminatory intent. Young, supra, 385 N.J. Super. at 461. Moreover, there are several other teachers and staff in the district who are close in age to plaintiff who continue to work there, and the Board's actions in meeting a reduced budget do not evince any age-based discriminatory intent. We therefore conclude that no reasonable jury on these facts could find discriminatory intent, and the grant of summary judgment in favor of defendants could be sustained on this basis as well.

II.

Plaintiff argues that her non-LAD claims, which were based upon the same facts supporting her LAD claim, were wrongfully dismissed. The motion judge dismissed these claims because of plaintiff's failure to provide defendants with tort claim notice. We concur in this result.

The Tort Claims Act bars a plaintiff from recovering against a public entity or public employee if the plaintiff fails to file a notice of claim within ninety days of the accrual of the cause of action, N.J.S.A. 59:8-8, unless the plaintiff demonstrates good cause to justify a late filing. N.J.S.A. 59:8-9; Owens v. Feigin, 194 N.J. 607, 610 (2008).

Here, plaintiff does not dispute that she failed to file a notice of claim. Nor does she argue that any extraordinary circumstances excused her failure to do so. Her cause of action accrued on June 24, 2010, the day that she met with Principal Suchorsky and signed the resignation letter. Therefore, she needed to file a notice of claim no later than September 24, 2010. Plaintiff's complaint, which in any case was not filed until October 13, 2010, cannot act as a substitute for the notice required by the TCA. Guzman v. Perth Amboy, 214 N.J. Super. 167, 171-72 (App. Div. 1986).

III.

Finally, plaintiff argues that the motion court, without explanation, wrongly denied her motion to amend her complaint to add claims that defendants violated her civil rights under the New Jersey and United States constitutions. Plaintiff's proposed amended complaint alleges that defendants wrongfully deprived plaintiff of her constitutionally protected property interest in her tenured employment as a teacher.

We agree that the motion court did not provide any reasons for its denial. Ordinarily, we would remand for explication, Rule 1:7-4(a), but here, where the reasons are readily apparent in the record, such a disposition is unnecessary as we concur in the result reached.

Rule 4:9-1 allows a party, after a responsive pleading has already been served, to amend a pleading "only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." The rule "requires that motions for leave to amend be granted liberally." Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 456 (1998). Nevertheless, such motions "are best left to the sound discretion of the trial court in light of the factual situation existing at the time each motion is made." Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994). The court's exercise of discretion "will not be disturbed on appeal, unless it constitutes a 'clear abuse of discretion.'" Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003). "That exercise of discretion requires a two-step process: whether the non-moving party will be prejudiced, and whether granting the amendment would nonetheless be futile." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). Although courts should determine motions for leave to amend without considering the ultimate merits of the amendment, "courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted." Ibid. (internal quotation marks omitted).

Plaintiff's constitutional claims, like her tort claims, are all derivative of her essential age discrimination cause of action, and equally dependent on the same facts that we have just found insufficient to sustain her LAD complaint. Plaintiff has presented nothing in addition to suggest her constitutional claims would fare any better. Absent an adverse employment action, plaintiff simply cannot prove that defendants deprived her of anything, let alone a constitutionally protected property interest. See Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449, 470 (App. Div.) (quoting Nicholas v. Pa. St. Univ., 227 F.3d 133, 142 (3d Cir. 2000)) (stating that "tenured public employment is [not] a fundamental property interest entitled to substantive due process protection") (alteration in original), certif. denied, 212 N.J. 460 (2012). As the new claims plaintiff sought to include within her proposed amended complaint are not sustainable as a matter of law, we perceive no abuse of discretion in the motion court's denial of leave to file that amendment.

Affirmed.

 

1 Quinones never informed Megan that she was not allowed into the building, but Suchorsky informed both plaintiff and Megan about this prohibition. Plaintiff denies ever being so advised.

2 The students were scheduled for an early dismissal (12:40 p.m.) that day.

3 Plaintiff admitted that she would not have let any other parent into the school at that time (1:00 p.m.) of day.

4 Article 5, Paragraph D of the collective bargaining agreement provides:

Whenever any employee is required to appear before his/her supervisor for the purpose of formal discipline which could, in the opinion of the supervisor, adversely affect the continuation of that employee's employment, the employee shall be given 48 hours prior written notice of the reasons for such meeting and shall be entitled to representation by a member of the Association.

 

5 Suchorksy testified that she said to plaintiff, "I take this seriously. I really do believe that the building was not as safe as it should have been and that policy was not followed."

6 Plaintiff testified: "I know that I was a highly-paid employee due to my educational background and my years and that that salary was a detriment to the budget."

7 The employer is entitled to summary judgment if, after proffering a non-discriminatory reason for its decision, plaintiff cannot "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Zive, supra, 182 N.J. at 455-56 (internal quotations omitted).