OLIVIA GILLIARD v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

OLIVIA GILLIARD,

Plaintiff-Appellant,

and

MARITZ MATTHEWS,

Plaintiff,

v.

CITY OF NEWARK and

LIEUTENANT JEVON MINTZ,

Defendants,

and

STATE OF NEW JERSEY, NORTHERN STATE

PRISON, DEPARTMENT OF CORRECTIONS, and

SERGEANT DOROTHY MINTZ,

Defendants-Respondents.

_____________________________________

July 22, 2015

Submitted April 28, 2015 Decided

Before Judges Nugent, Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4023-11.

Eldridge J. Hawkins, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Lisa M. Koblin, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, Olivia Gilliard, appeals from the trial court's orders granting summary judgment in favor of defendants State of New Jersey, Northern State Prison, Department of Corrections, and Sergeant Mintz (defendants), denying her motions for reconsideration, and dismissing her amended complaint in its entirety with prejudice. We affirm.

Gilliard was employed by the New Jersey Department of Corrections (DOC) as a Senior Correction Officer (SCO) in 2009. Mintz is employed by the DOC at Northern State Prison (NSP) and supervised plaintiff and other SCOs.

On June 24, 2009, Mintz wrote a "report of sickness or injury" stating she sustained injuries to her inner right leg as a result of Gilliard sexually assaulting her. In Mintz's report, she stated she was in the "G-Trailer," talking on the phone when Gilliard approached her. Mintz told Gilliard she would be on the phone for a while. Gilliard responded by jumping on the table, straddling Mintz, and hitting Mintz's legs. Mintz told Gilliard, and SCO Vargas, who was also present, to leave. Gilliard's report disputes this account, stating that she simply asked Mintz to share a seat, sat on Mintz's desk and then left. After the incident and pending investigation, Gilliard was temporarily reassigned to the "Ad-Seg Unit."

DOC Investigator Mychail Panycia, of the Special Investigation Division (SID), conducted an investigation which included interviews of Mintz, Gilliard, and Vargas. Panycia stated in the investigation report that Gilliard violated the "Violence in the Workplace" policy. Pursuant to the policy "'[w]orkplace [v]iolence' means and includes, but is not limited to, the utterance of threats and/or the display of threatening behavior, harassment, intimidation, physical assault, or intentional property damage."

Gilliard and a union representative met with Captain B. Ahearne on July 22, 2009. Ahearne concluded in his report that Gilliard's "conduct on this date was unacceptable, and unbecoming of a [SCO]." On August 7, 2009, a Preliminary Notice of Discipline was sent to Gilliard, charging her with "conduct unbecoming" under N.J.A.C. 4A:2-2.3(a)6 and "other sufficient cause" under N.J.A.C. 4A:2-2.3(a)11.

A preliminary hearing was held, after which the hearing officer sustained the DOC's recommended penalty of a forty-five- day suspension without pay. The hearing officer determined Gilliard "willfully assaulted Sgt. Mintz with the intent to intimidate her into surrendering her seat." The hearing officer also determined Gilliard "violated the policy prohibiting discrimination; harassment or hostile work environments in the workplace" and that her "conduct was so egregious, despite the absence of a significant disciplinary history, to warrant the imposition of the recommended penalty."

Subsequent to her three-month reassignment to the "Ad-Seg Unit," Gilliard was instructed to report back to the "G-Trailer." After returning to work for a short period of time, Gilliard went on leave "because of stress, anxiety and depression[; thus, she] was unable to return to her employment." Gilliard appealed her discipline to the Office of Administrative Law (OAL) and requested an extension of leave. The OAL judge dismissed all charges against Gilliard, after concluding NSP "ha[d] not proven the charges filed against" Gilliard. The initial decision was filed with the Civil Service Commission (CSC) for consideration. The CSC rejected the decision, upheld the charge of conduct unbecoming, and imposed a ten-working-day suspension.

Gilliard was informed that her request for an extension of leave was denied because she had used up the twelve weeks of leave permitted by the Family and Medical Leave Act (FMLA). Gilliard was later notified she had been on leave for a year and had to return to work with a medical clearance indicating her ability to return without restrictions. She was informed that if she did not return to work, apply for disability retirement, or submit a letter of resignation, she would be deemed absent without permission.

Gilliard was charged with inability to perform duties under N.J.A.C. 4A:2-2.3(a)3. Gilliard did not attend the hearings. The hearing officer determined NSP met its burden of proof and suspended Gilliard without pay. Since she did not request a hearing, Gilliard was terminated officially via a Final Notice of Disciplinary Action.

In November 2010, Gilliard filed a report with NSP regarding incidents she had with Mintz, claiming Mintz was following her. While sitting in her car for a hair appointment, Mintz noticed Gilliard staring at her. She waited in the car until Gilliard walked away. On another occasion, Mintz was seen in an intersection near Gilliard's residence. Gilliard took photographs of Mintz and left. Gilliard later returned to the intersection with her mother, Maritza Matthews. Matthews photographed Mintz and also tapped on the window of Mintz's vehicle. Mintz contacted the Newark police, as well as her husband, a lieutenant with the Newark police. Mintz filed harassment charges against Gilliard, which were later dismissed.

On May 5, 2011, Gilliard and Matthews filed a complaint.1 The complaint alleged violations of: N.J.S.A. 10:5-1 to - 49 N.J.S.A. 10:6-2; breach of implied covenant of good faith and fair dealing; New Jersey Constitution, Article I, Paragraphs 1, 5, 6, & 19; 42 U.S.C.A. 1983, 1985, 1986, & 1988; common law claims of false light; false imprisonment; malicious prosecution; wrongful discharge; infliction of severe emotional distress; and misuse and abuse of process.

After discovery, defendants moved for summary judgment. Prior to oral argument, Gilliard and Matthews voluntarily withdrew count six. The trial court granted defendants' summary judgment motion and dismissed the amended complaint without an accompanying oral or written statement of reasons.2 R. 1:7-4. Gilliard and Matthews filed two motions for reconsideration. The court denied both motions. In a written statement of reasons on the second motion for reconsideration, the court found

no basis in the pleadings from which to conclude that [Mintz] discriminated or otherwise deprived plaintiff Matthews of accommodations, facilities or privileges with regard to the [intersection photographing] incident. The facts are uncontroverted that Sergeant Mintz was off duty, sitting in her car outside a place of business of which she was a patron, when she was approached and harassed by plaintiff Matthews, who was thereafter engaged by Newark Police Lieutenant Jevon Mintz.

. . . .

With regard to the State of New Jersey, there is no basis on which to find that the State's Department of Corrections discriminated against plaintiff Gilliard. It is this Court's understanding that on June 24, 2009, plaintiff Gilliard was charged with conduct unbecoming of a public employee after she allegedly came over to where her supervisor, [Mintz] was sitting during work and asked her to move so she could sit down, failed to return to her post when asked, and instead jumped up on the desk in front of Sergeant Mintz and sat with her legs in close proximity to Sergeant Mintz's legs until she was told to leave the office. . . . Mintz filed a "violence in the workplace report" based on [this] incident. . . . [Gilliard] has failed to set forth any facts indicating when the State filed specific charges of sexual harassment and on what basis. Because there are no facts to substantiate an intentional tort, the Court finds no factual basis to hold the State of New Jersey liable under plaintiff's "public accommodation theory."

The court also determined Gilliard failed to provide evidence to support her constructive termination or hostile work environment claims. As for Gilliard's claims under the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-2, the court held she failed to plead specific facts of defendants' discrimination or deprivation of due process.

Plaintiff raises the following issues on appeal

POINT I

PLAINTIFF DID ESTABLISH A PRIMA FACIE CASE OF HOSTILE WORK ENVIRONMENT UNDER COUNT ONE BECAUSE THE CONDUCT ALLEGED BY HER WAS SEVERE OR PERVASIVE.

POINT II

COUNTS THREE AND FIVE, BOTH OF WHICH ALLEG[E] CLAIMS UNDER THE NEW JERSEY CIVIL RIGHTS ACT (N.J.S.A. 10:6-2) SHOULD NOT HAVE BEEN DISMISSED BECAUSE THERE WAS EVIDENCE ON THE RECORD THAT THE DOC DEFENDANTS VIOLATED THE PLAINTIFF'S RIGHT.

POINT III

PLAINTIFF NEED ONLY PROVE THAT DEFENDANTS TREATED HER IN AN ADVERSE FASHION BECAUSE SHE WAS PERCEIVED TO HAVE A SEXUAL PREFERENCE FOR WOMAN.

POINT IV

AS A CONSEQUENCE OF THE ABOVE, PLAINTIFF BECAME DISABLE[D] AND TERMINATED.

POINT V

N.J.S.A. 10:6-2 REQUIRES ALL ACTIONS UNDER COLOR OF STATE LAW OF DEFENDANTS' DEPRIVING PLAINTIFFS OF THEIR STATUTORY OR CONSTITUTIONAL RIGHTS TO BE ACTIONABLE.

POINT VI

PLAINTIFF WAS ENTITLED TO RECONSIDERATION OF THIS COURT'S ORDERS.

POINT VII

PLAINTIFF'S MISUSE AND ABUSE OF PROCESS CLAIMS MUST NOT BE DISMISSED FOR THE REASONS MORE FULLY SET FORTH HEREIN.

On appeal, plaintiff argues there were disputed issues of material fact that precluded summary judgment and the motion judge did not properly consider her arguments. After a thorough review of the record and consideration of the controlling legal principles, we conclude that all of plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following concerning plaintiff's hostile work environment and constitutional claims.

We utilize the same standard as a motion judge to review an order for summary judgment. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). A reviewing court examines the entire record to determine if there exists a genuine issue of material fact which precludes entry of summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In doing so, all facts and the reasonable inferences that may be drawn from those facts must be viewed in the light most favorable to the non-moving party. Ibid. However, "[i]f there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact" to allow denial of the motion. Ibid.

Gilliard argues she presented sufficient facts to demonstrate a prima facie case of hostile work environment. The New Jersey Law Against Discrimination (LAD) provides that it is unlawful

[f]or 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, pregnancy, sex . . . of any individual, . . . to refuse to hire or employ or to bar or to discharge . . . 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).]

To establish a cause of action under the LAD for hostile work environment, a plaintiff must demonstrate that "the complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Lehmann v. Toys 'R' Us, 132 N.J. 587, 603-04 (1993).

Our Supreme Court has noted that

while it is certainly possible that a single incident, if severe enough, can establish a prima facie case of a hostile work environment, it will be a rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable [person situated as the claimant], make the working environment hostile.

[Taylor v. Metzger, 152 N.J.490, 500 (1998) (quoting Lehmann, supra, 132 N.J.at 606-07) (internal quotation marks omitted).]

Gilliard claimed that "[s]ix days after the September 11 hearing and after being found guilty of such unfound [sic] charges . . . it was more than she could bear and immediately sank into a deep depression with anxiety to the point she qualified for Social Security disability." Even considering Gilliard's hostile work environment complaint in a light most favorable to her, we conclude that her claim fails as a matter of law. Those employed as corrections officers are subject to disciplinary charges and to findings of guilt on those charges. While such occurrences may not be commonplace, neither are they "rare." As such, we conclude the single incident Gilliard alleges, i.e., being found guilty of disciplinary charges, would not be perceived by a reasonable person in her position as "so severe" to constitute actionable conduct. Ibid.

Gilliard next argues there was evidence in the record to demonstrate the defendants violated her rights under the Civil Rights Act, N.J.S.A. 10:6-2 and the New Jersey Constitution, Article 1, 1, 5, 6, 7, 18, & 19.

The United States Supreme Court has held "that a public employee dismissible only for cause was entitled to a very limited hearing prior to his termination, to be followed by a more comprehensive post-termination hearing." Gilbert v. Homar, 520 U.S. 924, 929, 117 S. Ct. 1807, 1811, 138 L. Ed. 2d 120, 127 (1997) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)). Furthermore, "where an adequate grievance/arbitration procedure is in place and is followed, a plaintiff has received the due process to which he is entitled under the Fourteenth Amendment." Dykes v. Se. Pa. Transp. Auth., 68 F.3d 1564, 1565 (3d Cir. 1995), cert. denied, 517 U.S. 1142, 116 S. Ct. 1434, 134 L. Ed. 2d 556 (1996).

During the pre-termination process, a "tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Cleveland Bd. of Educ., supra, 470 U.S. at 546, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506. "[A] state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them." Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (quoting Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir.), cert. denied, 459 U.S. 1017, 103 S. Ct. 379, 74 L. Ed. 2d 512 (1982)).

Here, Gilliard alleges she did not receive notice of her hearing until after the hearing took place. To the contrary, the record supports that neither Gilliard nor her representative appeared after Gilliard: received both the preliminary and final notices of her charges; received an explanation of NSP's evidence through the OAL hearing; and was given the opportunity to provide her version of the event to DOC Investigator Panycia, Captain Ahearne, and various hearing officers. Gilliard was also provided with a similar opportunity during the OAL appeal.

Similarly, Gilliard's state constitutional claims are wholly lacking in evidential support to prove actionable conduct by defendants. Gilliard presented no evidence other than bald allegations that defendants discriminated against her based on religion, ancestry, or national origin, prohibited her right to free speech, and violated her right against unreasonable search or seizure. As this court has held, a plaintiff's self-serving assertion alone will not create a material fact sufficient to defeat a summary judgement motion. Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002).

Affirmed.

1 Gilliard and Matthews filed an amended complaint on June 23, 2011. Matthews is not a party to the appeal.

2 Co-defendants City of Newark and Lieutenant Mintz also filed a motion for summary judgment, heard before the court. As to these defendants, the complaint was dismissed in part. The remaining count proceeded to trial. At the trial's conclusion, the jury awarded Matthews $3,000 and Gilliard $1,000.