RENEE WOJTOWICZ 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NOT FOR PUBLICATION WITHOUT THE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-0

RENEE WOJTOWICZ,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

Defendant-Respondent.

_________________________________

January 29, 2014

 

Submitted September 10, 2013 Decided

 

Before Judges Ostrer and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2038-10.

 

Van Syoc Chartered, attorneys for appellant (Clifford L. Van Syoc, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jacqueline Augustine, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Renee Wojtowicz, a social worker employed by the Juvenile Justice Commission (JJC), appeals from the trial court's August 10, 2012, order granting summary judgment and dismissing as time-barred her complaint alleging she was subject to a hostile work environment and retaliation, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We affirm.

I.

We discern the following facts from the record.1 Plaintiff has worked at the JJC's Pinelands Residential Community Home (Pinelands) since April 2004. In May 2005, she reported to a supervisor that she witnessed a teacher at Pinelands, Kevin Ciser, inappropriately shout and curse at residents. Ciser subsequently confronted plaintiff, and, in vulgar language, told her it was not her role to question his behavior. Plaintiff alleged that Ciser thereafter subjected her to a series of inappropriate comments, actions, or demonstrations that continued as late as April 2007. These included saying "boo" to plaintiff on multiple occasions to annoy or scare her; singing loudly; placing false negative comments about plaintiff in a staff log; making fart noises with his mouth as he passed her in the hall; physically blocking plaintiff's access to a water cooler; and leaving voice-mails and post-it notes which were designed to upset or irritate her, including one voice-mail message suggesting she needed mental health treatment. In March 2006, a supervisor overheard another teacher, Christian Johnson, in a conversation with Ciser, falsely attribute vulgar remarks to plaintiff.

Ciser also alleged, falsely, that plaintiff on two separate occasions raised her skirt to display her underwear to him. This prompted two investigations of plaintiff's conduct, which concluded the allegations were unfounded. Plaintiff admitted those investigations were conducted fairly.

During the two-year period, management repeatedly met with Ciser, and with plaintiff, to address her complaints about his behavior. Initially, after the May 2005 incident, management attempted to effectuate a reconciliation between the two employees. After that proved unsuccessful, and incidents continued, management implemented a "no talk" order, barring Ciser from speaking to plaintiff on other than a professional basis.

In response to a complaint plaintiff apparently made in the summer of 2005 about Ciser's escalating pattern of annoying behavior, JJC management conducted an investigation that plaintiff asserted was "less than thorough" and "biased." The "EEO/AA Coordinator" of the JJC in Trenton reviewed information submitted by a Pinelands supervisor and concluded:

The matter does not rise to the level of an EEO policy violation, but I do have some concerns as to why Mr. Ciser continues to agitate [plaintiff]. [Plaintiff] is not protected by the Union, so she cannot file a grievance. However, I think we need to deal with this matter from a management perspective. Management should me[e]t with him and remind him about respect and dignity in the workplace. He should refrain from leaving personal opinionated messages on [plaintiff]'s phone, yelling at her or in the workplace, and explain to him that he must be professional in the work place. I would follow this up in writing and just keep a watchful eye on this situation. In addition you can refer him to me for a respect and dignity class.

 

In late September 2005, the Pinelands superintendent reported to JJC's EEO/AA coordinator that plaintiff alleged Ciser was harassing her. An investigator from the Office of Investigations reviewed numerous documents dating back to May 2005, and conducted various interviews, including of Ciser and plaintiff. The investigator also considered Ciser's claim that plaintiff exposed herself to him. In a December 28, 2005, report, the investigator found the allegation that Ciser had harassed plaintiff to be "inconclusive." Ciser's allegations about plaintiff were "unfounded." But, the investigator "substantiated" the allegation that Ciser had violated a superintendent's memo that he cease leaving plaintiff voice-mail messages.

Meanwhile, in October 2005, Ciser was temporarily removed from the treatment team. On December 13, 2005, Robert Saperstein, Pinelands' Site Education Supervisor, issued Ciser a "letter of counsel" regarding his behavior. Referring to a previous meeting in late September, Saperstein wrote:

At this meeting we made recommendations and guidelines for you to follow to bring this dispute to an end. Since the problem had not resolved itself it turned into a very serious matter. At the internal affairs investigation [plaintiff] indicated that she is scared of you. From this point forward you must not have any one on one contact with her. Any communication or concerns between you and [plaintiff] must go through your supervisor or the unit superintendent.

 

Leaving written notes, or voicemails that can be perceived as abrasive or threatening must stop immediately. Making gestures that can be misinterpreted or sarcastic comments such as "Boo" cannot happen in the future.

 

Since the Internal affairs investigation there [have] not been any further problems. However it is critical for you to continue to follow the guidelines outlined at our meeting. You must be diligent to avoid setbacks that occurred in the past. Continued unacceptable behavior will result in disciplinary action.

 

In January 2006, the Office of the Attorney General's Office of Workplace Policy Administration and Enforcement (OWPAE) concluded that plaintiff's allegations "appear to be in the realm of harassing conduct which may not be based on one of the categories in the New Jersey Policy Prohibiting Discrimination, Harassment or Hostile Environments in the Workplace." The decision advised plaintiff of her right to appeal, but she did not pursue one.

Later in 2006, management filed formal disciplinary charges that Ciser engaged in conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), arising out of his conversation with Johnson in which Johnson attributed vulgar remarks to plaintiff. Management sought a formal written reprimand. After a testimonial hearing, the hearing officer issued her findings in an August 2006 decision: "Through documentation and testimony, it is clear that in the past Kevin Ciser has made inappropriate comments regarding [plaintiff] and has received documentations regarding the same." Nonetheless, the hearing officer dismissed the charges against Ciser because Johnson, not Ciser, had made the objectionable statements.

In January 2007, the head of OWPAE advised plaintiff that OWPAE would investigate another complaint from plaintiff alleging discrimination, which the office received the previous month. Pending the investigation, in April 2007, plaintiff reported that Ciser sang loudly, shook his body in her presence, and displayed "thumbs up" to plaintiff. On May 7, 2007, Ciser was transferred to a different facility. However, the letter advising him of his transfer stated it was temporary, and did not indicate that it was related to plaintiff's complaints. Plaintiff concedes that Ciser's objectionable conduct stopped after he was transferred.

On January 15, 2008, First Assistant Attorney General John M. Vazquez advised plaintiff that the Attorney General's Office of Equal Employment Opportunity (AGEEO) the successor to OWPAE had concluded that "Ciser subjected you to physical and verbal intimidation and sexual harassment in retaliation for engaging in protected activity." AGEEO also found, "Johnson falsely accused you of making obscene comments in the workplace in retaliation for engaging in protected activity, and . . . Ciser and Johnson knowingly provided false information during the course of the investigation." The office requested "appropriate corrective action against Ciser and Johnson, as well as remedial action." The letter was consistent with the recommendations of the AGEEO director, who provided Vazquez with an extensive report of her office's investigation and findings.

Tenure charges were subsequently brought against Ciser in March 2008. Ciser was alleged to have "physically and verbally intimidated" plaintiff on two occasions between March and April 2007; falsely accused plaintiff of making obscene comments in the workplace in retaliation for her reports of Ciser's misconduct; and knowingly provided false information to AGEEO investigators. As part of a stipulation of settlement, those charges were withdrawn in return for Ciser's agreement to resign in good standing.

Plaintiff alleged that even after Ciser was transferred, she suffered from depression and anxiety, and various physical ailments. She also testified that she attended a mandatory seminar concerning hostile work environments and sexual harassment in August 2007. Along with other employees, Johnson attended the seminar, which upset plaintiff. Plaintiff admitted she did not lose any job benefits, suffer a reduction in salary, or was not denied promotions, as a result of her interactions with Ciser. She was never disciplined as a result of Ciser's false accusations.

On December 22, 2009, plaintiff filed a one-count complaint in Superior Court alleging that she was subject to a hostile work environment and retaliation. After a period of discovery, the State sought summary judgment, arguing, among other grounds, that the two-year statute of limitations under LAD had expired before plaintiff filed her complaint. Plaintiff argued that the statute did not run because there was a continuing violation, consisting of the State's allegedly dilatory investigation. Judge Patricia Richmond granted the State's motion in a written opinion:

In this case, Plaintiff contends that even after the actual harassment by Ciser ceased on May 7, 2007, the investigation by the Attorney General's Office triggered the continuing violation doctrine. However, the Plaintiff provides no legal support for the proposition that an investigation undertaken by the Attorney General's Office (not the JJC) was part of a continuing violation or was retaliatory. There is nothing presented that would allow one to conclude that Plaintiff was subjected to an adverse employment decision by her employer. Once the Attorney General's Office started the investigation, Plaintiff was not reassigned to other duties, she was not reassigned to a different location, nor was she dissuaded from complaining. Fortunately, the Plaintiff did not suffer the conduct of Ciser silently. When he yelled at the Pinelands residents she complained to supervisor Rouse. On several occasions she spoke to others at the JJC about Ciser's conduct and the JJC undertook investigations and meetings. And Plaintiff herself in her deposition testified that her employer did not retaliate against her. As the Court said in Burlington Northern v. White, 548 U.S. 53 (2006) ". . . a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington at page 68. The Plaintiff presents nothing in response to this Motion to show that a reasonable employee would have found the investigation by the Attorney General's Office, which started in 2007 and ended in January[] 2008 to be materially adverse.

 

Absent any support, factual or legal, for the proposition that once Ciser was transferred from Pinelands to another facility that the investigation by the Attorney General's Office was retaliatory, the statute of limitations began to run on the day Ciser was transferred, May 7, 2007. Accordingly, the complaint should have been filed prior to May 7, 2009. As it was filed outside the statu[te] of limitations, the Motion for Summary Judgment of the Defendant is granted.

 

This appeal followed. Plaintiff argues that the State's failure to promptly respond to plaintiff's complaints, and the length of the State's investigation, constituted harassment and retaliation. She also argues Johnson's continued presence in the workplace continued the hostile work environment, and tolled the statute of limitations. We disagree.

II.

We review the trial court's grant of summary judgment de novo, applying the same standard that governs the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). "[T]he appellate court should first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court's ruling on the law was correct." Ibid. We extend no special deference to the trial court's legal determinations. Ibid.; Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Plaintiff's LAD claims are subject to a two-year limitations period. Henry, supra, 204 N.J. at 332; Roa v. Roa, 200 N.J. 555, 566 (2010). The limitations period is subject to an equitable exception for continuing violations. Roa, supra, 200 N.J. at 566.

[T]he continuing violation theory was developed to allow for the aggregation of acts, each of which, in itself, might not have alerted the employee of the existence of a claim, but which together show a pattern of discrimination. In those circumstances, the last act is said to sweep in otherwise untimely prior non-discrete acts.

 

[Id. at 569.]

A court must ascertain whether the acts alleged are discrete, or part of a pattern or series of acts. If they are discrete, then a timely claim "does not sweep in a prior untimely discrete act which the victim knew or ought to have known gave rise to a retaliation claim." Id. at 561.

[W]e must consider two questions. First, have plaintiffs alleged one or more discrete acts of discriminatory conduct by defendants? If yes, then their cause of action would have accrued on the day on which those individual acts occurred. Second, have plaintiffs alleged a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment? If yes, then their cause of action would have accrued on the date on which the last act occurred, notwithstanding that some of the component acts of the hostile work environment [have fallen] outside the statutory time period.

 
[Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 21 (2002) (internal quotation marks and citation omitted).]

Here, plaintiff filed her complaint in December 2009. The harassment and hostile work environment caused by Ciser ceased in May 2007, with his transfer. For purposes of summary judgment, to secure relief for the harm Ciser caused, plaintiff must demonstrate that some non-discrete act of a hostile work environment or retaliation occurred after December 2007. She asserts that the State's ongoing investigation, which resulted in a finding a month later, sustaining her allegations, constitutes such a non-discrete act.

We disagree. First, the evidence does not support plaintiff's claim that the AGEEO investigation was part of a pattern of conduct that included Ciser's conduct. Plaintiff was unquestionably aware of the nature of Ciser's conduct. She complains that disciplinary action against Ciser was initially too restrained, allowing him to continue to work at Pinelands and continue to harass her. She also complains that the State's last investigation was delayed. However, there is no evidence that the JJC internal investigations, or the AGEEO investigations, were influenced by Ciser, or consistent with his conduct.

Second, under the circumstances presented, the alleged failure of the State to complete the investigation swiftly was not a component of a hostile work environment, or a retaliatory act. Under LAD, an employer may not

take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

 

[N.J.S.A. 10:5-12d.]

 

There is no question that plaintiff engaged in protected activity by complaining about Ciser.

To establish a prima facie case of retaliation, a plaintiff must demonstrate that "1) she was engaged in a protected activity known to the defendant; 2) she was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two." Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996) (citation omitted). If a plaintiff meets his or her burden, then the burden of production shifts to the defendant to articulate a legitimate reason for the decision. Plaintiff must then show that a retaliatory intent, rather than the proffered reason, motivated the defendant's action. Ibid. If a plaintiff succeeds in meeting that burden, the employer "must prove by the preponderance of the evidence that the adverse action would have been taken regardless of retaliatory intent." Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445-46 (App. Div. 1990).

Plaintiff does not allege that she was subject to an adverse employment decision, for example, that the State terminated, demoted, or denied a promotion to her. See, e.g., Woods-Pirozzi, supra, 290 N.J. Super. at 275; Jamison, supra, 242 N.J. Super. at 447. At most, she alleges that the ineffective and prolonged investigation left her exposed to continued hostility in the workplace.

We recognize an employer's duty to implement an effective remedial process. "[A] remedial scheme that reaches the correct result through a process that is unduly prolonged or that unnecessarily and unreasonably leaves the employee exposed to continued hostility in the workplace is an ineffective remedial scheme" and "indirectly punishes" the employee. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 538 (1997). "When an employer does not correct a hostile work environment, the gist of the wrong to plaintiff is that he [or she] continues to endure a hostile work environment . . . ." Toto v. Princeton Twp., 404 N.J. Super. 604, 615 (App. Div. 2009). We held that "toleration of harassment by other employees" may be considered evidence of a retaliatory adverse employment action, along with such factors as "the employee's loss of status, a clouding of job responsibilities, diminution in authority, [and] disadvantageous transfers or assignments." Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002), aff'd o.b. as modified on other grounds, 179 N.J. 425, 439 (2004).

There is some support for the proposition that a failed investigation may constitute part of a continuing violation. See Ruffino v. State St. Bank & Trust Co., 908 F. Supp. 1019, 1039 (D. Mass. 1995) ("Theoretically, a failure to investigate claims of sexual harassment may be evidence of a hostile environment and may continue the substantive violation of a plaintiff's rights to work free of sexual harassment."). However, such cases have involved a defendant who "did nothing to prevent the harassment" or turned a "blind eye" to permit "continuing or escalating harassment." Id. at 1039-40. That is not the case here. Before the AGEEO's January 2008 findings, and the subsequent tenure charges, JJC officials imposed a no-talk order, issued an unfavorable "letter of counsel," and lodged formal disciplinary charges against Ciser, although a hearing officer dismissed the charges.

Moreover, in this case, the hostile work environment, and Ciser's campaign of retaliation, ceased when Ciser was transferred in May 2007. Any injury from the allegedly delayed or ineffectual investigation, which permitted Ciser to continue his conduct, ceased in May 2007. The continuation of the AGEEO investigation, culminating in the January 2008 findings, did not subject plaintiff to any additional hostility or retaliation after May 2007. It simply vindicated her complaints of conduct that had already ceased. As the Ruffino court noted, "[T]here must be more than the legacy of suspicion and ongoing ill feeling on the part of the plaintiff from past acts for her to jump the hurdle set up by the limitations period." Id. at 1040.

In sum, the allegedly delayed investigation, which concluded within the two-year period prior to plaintiff's complaint, does not constitute a basis for a cause of action, nor does it reach back and "sweep in" Ciser's conduct otherwise outside the limitations period. See Martin v. State Univ. of N.Y., 704 F. Supp. 2d 202, 223 (E.D.N.Y. 2010) (stating "the quality of the institutional defendants' response . . . cannot be considered a 'contributory act' for the purpose of extending her time to file"); Cooper v. Wyeth Ayerst Lederle, 106 F. Supp. 2d 479, 489-90 (S.D.N.Y. 2000) (rejecting argument that employer's failure to conduct a sufficiently vigorous investigation represents a continuation of plaintiff's harassment); Ruffino, supra, 908 F. Supp. at 1040 (rejecting on the facts presented the claim that a supervisor's inept response continued the violation).

Plaintiff also argues for the first time on appeal that Johnson's continued presence at Pinelands constituted a continuing violation. We reject this argument for two reasons. First, the argument was not apparently raised below. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). Second, and more importantly, plaintiff admitted that after Ciser was transferred, Johnson did not engage in any harassing behavior. Thus, Johnson's objectionable conduct, which lies beyond the statute, does not serve to toll the limitations period. Moreover, his "mere presence" in the workplace is not sufficient under the facts, since his conduct was not as egregious as Ciser's, nor was it the focus of plaintiff's complaints. Cf. Ellison v. Brady, 924 F.2d 872, 883 (9th Cir. 1991) (noting that harasser's "mere presence" may continue the violation, but only where his or her actions are "particularly severe or pervasive" so as to "render the working environment hostile from the perspective of a reasonable woman"); Caggiano v. Fontoura, 354 N.J. Super. 111, 133 (App. Div. 2002) (finding that in case of egregious course of conduct, harasser's "mere presence" in the workplace may serve as a continuation of the violation).

Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Our review of the record is hampered by the absence of either party's statement of material facts. It is unclear whether either party filed one, as required by Rule 4:46-2(a).