LUCIA KUI v. BERGEN COUNTY PROSECUTOR'S OFFICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LUCIA KUI,

Plaintiff-Appellant,

v.

BERGEN COUNTY PROSECUTOR'S

OFFICE,

Defendant-Respondent.

___________________________

May 25, 2016

Argued November 30, 2015 Decided

Before Judges Simonelli and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9266-10.

Rajdeep S. Gadhok argued the cause for appellant (Kozyra & Hartz, LLC, attorneys; Mr. Gadhok, of counsel and on the brief; Jason S. Haller, on the brief).

John L. Shahdanian II argued the cause for respondent (Chasan Leyner & Lamparello, PC, attorneys; Mr. Shahdanian, of counsel; Mollie F. Hartman, on the brief).

PER CURIAM

In this employment matter, plaintiff Lucia Kui appeals from the September 24, 2014 Law Division order, which denied her motion for reconsideration of the May 3, 2013 order granting summary judgment to defendant Bergen County Prosecutor's Office (BCPO) and dismissing the complaint with prejudice. For the reasons that follow, we affirm in part, and reverse in part.

Kui, an Asian-American female, filed a complaint on July 2, 2010, alleging that from 1998 to 2010, she was subjected to race-based discrimination, retaliation, and a hostile work environment, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.1 The record reveals that in June 1996, Kui was hired as an investigator with the Bergen County Narcotics Task Force (NTF), an agency that ultimately merged with the BCPO in 2000. According to Kui, in 1998, her supervisor, Senior Investigator Frank Kelaher, repeatedly made racially and stereotypically offensive comments to her, mocked her Asian heritage, and subjected her to a hostile work environment.2

Kui alleged that the first discriminatory act occurred on April 7, 2000, when she was transferred to the BCPO's Special Investigations Unit, a less desirable assignment where she earned approximately $10,000 less than BCPO detectives with similar experience.3 Kui believed that Kelaher orchestrated the transfer. She admitted that she was not subjected to any discriminatory conduct by Kelaher thereafter; however, she claimed the retaliation and hostile work environment continued through other BCPO employees, specifically Captain John Palotta, who was Kelaher's close friend and who referred to Kui as a "rat" for complaining about Kelaher.

Kui admitted that she was aware of the BCPO's anti-harassment and discrimination policy and the BCPO's employment manual listing mechanisms for pursuing complaints, and that she received yearly training on these topics. In August 2000, Kui complained to a then-supervisor about Kelaher's conduct, and an investigation ensued. Kui alleged that the second discriminatory act occurred in September 2000, when she was ordered to see a psychiatrist to determine whether she was fit for duty. Kui was subsequently advised that the results of the investigation were confidential, her claims against Kelaher were not sustained, and she could pursue a civil action if she was dissatisfied with the results.

Kui alleged that thereafter, the following discriminatory acts occurred

2001

(1) she was forced to participate in the Employee Assistance Program, which required her to undergo treatment with a therapist several times a month;

(2) BCPO officials falsely accused her of trying to burn down a squad room,4 and spread rumors that she had assaulted someone at her local gym; and

(3) she was transferred to the Juvenile Unit, a less desirable assignment, as punishment for failing to write a report about the gym incident.

2003

(1) the BCPO refused to issue her and another Asian-American detective an employee access card for entry into a side entrance of the Bergen County Courthouse while all other detectives received such cards, resulting in her having to wait in long lines with members of the general public to enter the courthouse.

2004

(1) she was asked to accept, but declined, a transfer to the Sex Crimes Unit, explaining that she was uncomfortable working with the Unit's supervisor, Sergeant Frank Cilento, who had previously made a racial joke disparaging her; and

(2) she was transferred to the Forfeiture Unit and forced to work without a desk for three months.

2005

(1) the Bergen County Prosecutor threatened to formally charge and suspend her for speaking to a member of the New Jersey General Assembly about the long-term harassment, retaliation and hostile work environment she suffered at the hands of BCPO officials;

(2) she was transferred to the Sex Crimes Unit despite her complaints about Cilento;

(3) Cilento forced her to work the night shift out-of-turn and accommodate last-minute changes to her schedule; and

(4) she was excluded from a squad party function, refused simple office supplies, publicly reprimanded to embarrass her in front of her colleague, denied training for purposes of advancement, had a County-issued vehicle removed, and refused compensation for call back and overtime pay.

Kui admitted that this last incident was the last time she was subjected to racial animus. However, she alleged that the following discriminatory acts occurred thereafter

2006

(1) the Chief of Detectives falsely accused her of disparaging him by telling her squad that she refused to perform a sex act with him;5 and

(2) she was transferred to the Grand Jury Unit, a less desirable assignment, in retaliation for her complaints about Cilento.

2007

(1) her supervisor, Sergeant Therese Steele, falsely accused her of violating the BCPO dress code, reprimanded her in the presence of a co-worker, threatened her with formal disciplinary action, and mentioned the incident in an evaluation.6

2008

(1) in early 2008, she was transferred back to the Juvenile Unit, where she was not provided a desk or cubicle despite one being available. Less than three months later, she was transferred back to the Grand Jury Unit.

2009

(1) Sergeant Donald Harris handed her a negative evaluation in the presence of other detectives and threatened to never allow her to leave early for an emergency if she complained about the evaluation;

(2) after Harris physically threatened her, she was charged with disciplinary infractions in connection with that confrontation.

2010

(1) she was embarrassed, scorned, and humiliated when she was blamed for causing a co-worker to lose the right to use a County-owned vehicle.

Kui filed her complaint on July 2, 2010. In January 2013, the BCPO filed a motion for summary judgment to dismiss the complaint with prejudice based on the two-year statute of limitations. Kui conceded that certain race-based incidents and transfers were discrete acts of discrimination that occurred more than two years before she filed her complaint, but argued her claims were timely under the continuing violation doctrine. Defendant replied that Kui could not aggregate the discriminatory acts to overcome the statute of limitations.

The trial judge granted the motion and dismissed the complaint with prejudice. The judge held that "the massive breaks" in time between the alleged non-discrete acts and non-accumulation of the discrete acts Kui alleged over the course of twelve years could not be continuous acts for her claims to survive under the continuing violation doctrine.

Kui filed a motion for reconsideration based on new evidence, specifically, the certification and deposition testimony of Brian Callanan, a retired Lieutenant of the BCPO and Kui's former supervisor. Kui asserted that this new evidence established the timeliness of her claims under the continuing violation doctrine.7 The judge denied the motion without making factual findings or legal conclusions.

Plaintiff appealed. We reversed and remanded for the judge to make factual findings and legal conclusions regarding to what extent, if any, the new evidence had on Kui's contention that her claims were timely under the continuing violation doctrine. Kui v. Bergen Cty. Prosecutor's Office, No. A-4363-12 (App. Div. Mar. 5, 2014). We did not permit further discovery or supplementation of the record, and limited the judge's review to the new evidence.8 See Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000) (holding that our review of a judge's decision is based on the motion record and not on evidence presented later).

The new evidence revealed that Callanan was employed by the BCPO from 1995 to August 2009. He was assigned to the Homicide Unit from 1996 to 2002, and worked there with Palotta for a period until approximately 2002. Callanan testified that during that period, Palotta repeatedly told "a story" that in 1997 or 1998, Kelaher began mocking Kui's Asian heritage, made racially and stereotypically offensive comments to her, and was chastised by the Chief of Detectives for his conduct. Palotta and Kelaher referred to Kui as a "rat," and it was clear that Palotta did not like her.

Callanan testified that he was assigned to the courthouse from 2007 until August 2009, where he was Kui's supervisor and Palotta was his supervisor. Palotta told him that Kui was late to work and Callanan was to "[w]rite her up," and watch her to see if she was signing the time sheet. Callanan did not "write-up" Kui, but warned her that she was "on the radar." In addition, Palotta wanted him to speak to Kui about her attire because Palotta said that Kui was "walking around with her tits hanging out." Callanan testified that of all the women he supervised, Kui was always dressed in business attire. He also testified that Kui was always professional and never refused any suggestion or assignment.

In addition to his deposition testimony, Callanan submitted a certification, explaining that

[i]n the law enforcement culture in general, and in the BCPO office in particular, the term "rat" is perhaps the most derogatory term that can be employed in describing a fellow officer's character. It is intended to convey that the "rat" cannot be trusted. That the "rat" is sneaky and despicable and will betray you to your boss or others in management for even the most minor infraction or deviation from the rules. That "rat" is simply not a true member of the law enforcement fraternity. The term was employed as a means of inviting retaliatory action against the "rat."

Callanan also stated that Palotta: despised Kui because he believed she was a "rat" for complaining about Kelaher; continued to refer to her as a "rat;" and singled her out for unwarranted harassment and subjected her to "write-up[s] . . . for infraction[s] of the rules." Callanan concluded that "throughout the years . . . Palotta treated, and encouraged or ordered others to treat . . . Kui as a 'rat' and this designation originated from her complaints of racial harassment against . . . Kelaher in 2000."

Kui admitted that the evidence she produced in opposition to the summary judgment motion showed merely a string of non-discrete acts that took place over a period of time. However, she argued that Callanan's testimony sufficiently connected the non-discrete acts to her 2000 complaint against Kelaher to demonstrate that her claims were timely under the continuing violation theory. Specifically, she asserted that Callanan's testimony established that Palotta's discriminatory conduct continued until at least 2009.

On remand, the judge found that Callanan's testimony did not negate his initial finding that Kui presented insufficient evidence of continuous acts of harassment and/or retaliation to apply the continuing violation doctrine to her time-barred claims. The judge determined that Kui's claims were based on discrete acts and Callanan's testimony about non-discrete acts did not establish a causal link between the alleged retaliatory acts and the original discrimination. The judge relied on Roa v. Roa, 200 N.J. 555 (2010), and Jamison v. Rockaway Township Board of Education, 242 N.J. Super. 436 (App. Div. 1990) for the proposition that causation is a necessary element for a retaliation claim. Accordingly, the judge again denied Kui's motion for reconsideration. This appeal followed.

We review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Thus, we consider, as the motion judge did, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id.at 406. If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). For mixed questions of law and fact, we give deference to the court's supported factual findings, but review de novo the court's application of any legal rules to such factual findings. State v. Pierre, 223 N.J. 560, 577 (2015).

As for the denial of a motion for reconsideration, we have determined that

[r]econsideration itself is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citation omitted).]

We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 289. Applying these standards, we conclude that the judge erred in granting summary judgment and dismissing Kui's hostile work environment claim, and mistakenly exercised his discretion to deny reconsideration on that claim.

The statute of limitations for LAD claims is two years. Alexander v. Seton Hall Univ., 204 N.J. 219, 228 (2010). "Determining when the limitation period begins to run depends on when the cause of action accrued, which in turn is affected by the type of conduct a plaintiff alleges to have violated the LAD." Ibid. Here, Kui alleges retaliation and a hostile work environment.

"Generally stated, discrete acts of discrimination, such as termination or a punitive retaliatory act, are usually readily known when they occur and thus easily identified in respect of timing." Ibid. "Hence, their treatment for timeliness purposes is straightforward: 'A discrete retaliatory or discriminatory act occurs on the day that it happens.'" Ibid. (quoting Roa, supra, 200 N.J. at 567). "Discriminatory termination and other similar abrupt, singular adverse employment actions that are attributable to invidious discrimination, prohibited by the LAD, generally are immediately known injuries, whose two-year statute of limitations period commences on the day they occur." Ibid. Discrete acts are those "such as termination, failure to promote, denial of transfer, or refusal to hire" and for purposes of a statute of limitations, a discrete act occurs on the day it happens. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114, 122 S. Ct. 2061, 2070, 2073, 153 L. Ed. 2d 106, 120, 122 (2002). Similarly, a transfer is a discrete act in line with the examples cited in Morgan. Id. at 114, 122 S. Ct. at 2073, 153 L. Ed. 2d at 122.

Alternatively, a plaintiff may have a viable LAD claim under the continuing violation doctrine, which is "a judicially created doctrine . . . [that] has developed as an equitable exception to the statute of limitations" in LAD cases. Bolinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div.), certif. denied, 165 N.J. 491 (2000). The continuing violation doctrine provides that "when the complained-of conduct constitutes 'a series of separate acts that collectively constitute one unlawful employment practice[,]' the entire claim may be timely if filed within two years of 'the date on which the last component act occurred.'" Alexander, supra, 204 N.J. at 229 (quoting Roa, supra, 200 N.J. at 567). "The continuing violation doctrine, recognized under federal Title VII law as an appropriate equitable exception to the strict application of a statute of limitations, provided the analytic framework that has been used in the assessment of a LAD hostile workplace environment claim." Ibid.

Our Supreme Court has "specifically adopted the federal continuing violation equitable doctrine to determine the accrual date of a cause of action in a hostile workplace course-of-conduct claim." Ibid. (citing Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 18-19 (2002)). The Court noted that the doctrine addresses the "factual circumstances of an ongoing workplace harassment claim that involve[] alleged incidents of both discrete and non-discrete acts of discriminatory workplace hostility." Ibid. (citing Shepherd, supra, 174 N.J. at 21). The Court stated that Morgan had clarified the distinction between discrete acts of discrimination and hostile work environment claims, stating that "hostile work environment claims by '[t]heir very nature involve[] repeated conduct' of varying types and that '[s]uch claims are based on the cumulative effect of individual acts.'" Ibid. (alterations in original) (quoting Morgan, supra, 536 U.S. at 115, 122 S. Ct. at 2073-74, 153 L. Ed. 2d at 123). The Court also stated that

[r]ecognizing the beneficial effect of adopting Morgan's approach to such difficult hostile work environment scenarios where an employee may be subjected to ongoing indignities, we held in Shepherd . . . that a victim's knowledge of a claim is insufficient to start the limitations clock so long as the defendant continues the series of non-discrete acts on which the claim as a whole is based.

[Id. at 229-30 (quoting Shepherd, supra, 174 N.J. at 22).]

The Court continued that "stated differently, knowledge of hostility and of ongoing acts consistent with that hostility in such a setting is insufficient to trigger the limitation timeframe within which a LAD cause of action must be filed." Id. at 230. The Court warned, "however, that '[w]hat the doctrine does not permit is the aggregation of discrete discriminatory acts for the purposes of reviving an untimely act of discrimination that the victim knew or should have known was actionable.'" Ibid. (alteration in original) (quoting Roa, supra, 200 N.J. at 569).

To establish a continuing violation based on a series of discriminatory acts, our Supreme Court has stated that two questions must be considered

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, supra, 174 N.J. at 21 (alteration in original) (emphasis added) (quoting Morgan, supra, 536 U.S. at 116, 122 S. Ct. at 2074, 153 L. Ed. 2d at 124).]

Here, Kui relies on the continuing violation doctrine to sweep in as timely all of the retaliation and a hostile work environment that allegedly occurred during a twelve-year period. The BCPO counters that the continuing violation doctrine cannot be applied to sweep in otherwise time-barred discrete acts. We agree. The continuing violation doctrine does not permit the aggregation of discrete retaliatory acts for the purpose of reviving an untimely act of discrimination that Kui knew or should have known was actionable. Thus, each time Kui was transferred, she knew or should have known that she had been subjected to discriminatory retaliation and should have filed her retaliation claim within two years thereof. When she did not do so, that claim was lost and not subject to the continuing violation doctrine.

We reach a different conclusion as to Kui's hostile work environment claim. Kui alleged a pattern or series of non-discrete acts which, when viewed cumulatively, constitute a hostile work environment. As Roa holds, when a plaintiff alleges 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, the cause of action accrues on the date of the last act, even if some of the component acts of the hostile work environment claim fell outside the two-year period. Roa, supra, 200 N.J. at 568 (quoting Shepherd, supra, 174 N.J. at 21). Callanan's testimony and certification suggest that until 2009, Kui was subjected to a pattern or series of acts when viewed cumulatively constitute a hostile work environment. Accordingly, Kui's hostile work environment claim was timely as a continuing violation and should not have been dismissed.

Affirmed in part, reversed in part and remanded for further proceedings.

1 Kui voluntarily dismissed her racial discrimination claim. She had also asserted, but voluntarily dismissed, a claim under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14.

2 Kelaher was Kui's supervisor for approximately two years.

3 Kui was still employed by the NTF, which at the time had not yet merged with the BCPO. Employees of the NTF earned $10,000 less than those employed by the BCPO despite having the same job responsibilities.

4 Kui was told to write a report for Internal Affairs about this incident and considered this retaliatory because she was being "singled out" and "had to write a report" about anything that involved her.

5 Kui claimed that she told Cilento that she "was not getting on [her] knees for anybody." She alleged that Cilento reported what she said to the Chief of Detectives to further "discredit" her and "because he [was] racist towards" her.

6 Kui viewed Steele's acts as discriminatory, retaliatory, and creating a hostile work environment because Steele had "gotten together" with Sergeant Donald Harris and discussed Kui's behavior and how they would deal with her based on her past complaints.

7 Kui also relied on the deposition testimony of Joseph Antinori; however, she has not supplied the transcript of that deposition, in violation of Rule 2:5-4(a) and Rule 2:6-1(a)(1)(A), (D)-(I). Thus, we will not consider any facts or arguments relating to Antinori.

8 For this reason, we decline to address Kui's contention in this appeal that the judge erred in failing to permit her to supplement the record with additional new evidence of discriminatory acts that allegedly occurred after the grant of summary judgment in May 2013. This does not preclude Kui from filing a motion to amend her complaint; however, we express no view on the merits of such an application.