VALERIE MONTONE v. CITY OF JERSEY CITY

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4158-11T4

VALERIE MONTONE,

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY, JERSEY

CITY POLICE DEPARTMENT, MAYOR

JERRAMIAH HEALY in his

individual and official

capacities, and POLICE CHIEF

ROBERT TROY in his individual

and official capacities,

Defendants-Respondents.

JOHN ASTRIAB, CLYDE BANKS, JAMES

BUCKLEY, WILLIAM CULLINANE,

RICHARD DeSTEFANO, DAVID LaBRUNO,

EZIO SCERBO, and JOHN WHALEN,

Plaintiffs-Appellants,

v.

CITY OF JERSEY CITY, JERSEY

CITY POLICE DEPARTMENT, MAYOR

JERRAMIAH HEALY in his

individual and official

capacities, and POLICE CHIEF

ROBERT TROY in his individual

and official capacities,

Defendants-Respondents.

Argued telephonically December 10, 2013 Decided December 24, 2013

 

Before Judges Reisner, Alvarez and Carroll.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-409-12 (A-3326-11) and L-1207-12 (A-4158-11).

 

Lisa Manshel argued the cause for appellant Valerie Montone in A-3326-11 (Francis & Manshel, attorneys; Ms. Manshel, of counsel and on the briefs).

 

Kathleen P. Ramalho argued the cause for appellants John Astriab, Clyde Banks, James Buckley, William Cullinane, Richard DeStefano, David LaBruno, Ezio Scerbo, and John Whalen in A-4158-11 (Breuninger & Fellman, attorneys; Patricia Breuninger, of counsel and on the briefs; Ms. Ramalho, on the briefs).

 

Richard A. Gantner argued the cause for respondents City Of Jersey City, Jersey City Police Department, Mayor Jerramiah Healy (Cleary, Giacobbe, Alfieri and Jacobs, attorneys; Mr. Gantner, on the brief).

 

Domenick Carmagnola argued the cause for respondent Robert Troy (Carmagnola & Ritardi, attorneys; Mr. Carmagnola, of counsel and on the brief; Sean Joyce, on the brief).

PER CURIAM

In these back-to-back matters, which we consolidate for purposes of this opinion, plaintiff Valerie Montone appeals from a February 3, 2012 Law Division order granting summary judgment in favor of defendants City of Jersey City (City), Jersey City Police Department (JCPD), former mayor Jerramiah Healy, and former police chief Robert Troy. In a separate but related action, plaintiffs John Astriab, Clyde Banks, James Buckley, William Cullinane, Richard DeStefano, David LaBruno, Ezio Scerbo, and John Whalen (collectively the Astriab plaintiffs) appeal from a March 16, 2012 Law Division order which similarly granted defendants' summary judgment motions dismissing their claims. The motion judge applied the doctrine of collateral estoppel in dismissing various of plaintiffs' claims in both actions, relying on United States District Court decisions that had dismissed their federal claims. Because those District Court decisions have since been reversed on appeal and the parties' federal actions restored, and for the additional reasons that follow, we reverse and remand.

I.

We summarize the pertinent evidence from the extensive motion records. In reviewing the parties' allegations, we make no determination as to whether they are true. The issue on this appeal is whether plaintiffs are entitled to present their evidence to a jury.

Montone began working for the JCPD in 1981, and was promoted to sergeant in June 1996. According to her deposition testimony, she knew Troy from childhood and they had been very good friends. Their friendship soured after Montone brought a sexual harassment lawsuit against the City in 1993, which settled in 1998. According to Montone, Troy, who was then a lieutenant, asked her to pay him a percentage of her recovery, and that she agreed but then declined to do so, in part because Troy never gave a deposition in that action. Montone's version was supported by Anthony D'Aiuto, who became a police captain in 1998. Troy, on the other hand, denied both Montone's and D'Aiuto's assertions.

In 2002, Montone alleged that Troy made sexually suggestive remarks to her. Montone also complained about being sexually harassed by then-Police Director James Carter at the December 2002 Christmas party. Also in December 2002, patrol officer Marisa Johnston lodged an internal complaint about a sexually hostile work environment in the BCI unit, then headed by Troy. Troy responded by accusing both Montone and Johnston of using Johnston's allegations to deflect attention from her job "mistakes," and from Montone's history of abusing sick leave. At his deposition, Troy stated his belief that Montone "coached" Johnston in making spurious complaints against him "to get a payday." Johnston continued to assert additional claims of a hostile environment, and in 2006 she filed her own action alleging gender discrimination that included hostile work environment and retaliation for her internal complaint. Johnston's action against the City settled for $400,000 in 2008.

Jersey City held a special election for mayor in 2004, won by Healy. Troy supported Healy, and before the special election Troy told Healy his ideas about addressing what he perceived to be the JCPD's problems. Healy agreed and said he would promote Troy to Police Chief if he won. Healy made Troy Acting Police Chief in November 2004 and Police Chief in December 2004. Healy was then re-elected to a full term as mayor in May 2005. Troy continued to serve as Police Chief until his retirement in July 2006. Montone, in contrast, worked for Louis Manzo, Healy's opponent, in both campaigns, and similarly expected to benefit had Manzo won.

JCPD promotions are made through the use of a "promotion list." Officers are ranked on the list based on their score on a civil service examination, which is held every three years. The 2003 lieutenant promotion list contained thirty-nine officers, including two women, Christine Peterson, ranked seventh, and Montone, ranked twenty-second. The Astriab plaintiffs were ranked as follows: Scerbo, sixteen; LaBruno, seventeen; Whalen, nineteen; Buckley, twenty-four; Cullinane, twenty-six; Banks, twenty-eight; Astriab, thirty; and DeStefano, thirty-two. In October 2004, Acting Police Chief James Blake promoted Peterson and nine men to lieutenant, all of whom were ranked above Montone and the Astriab plaintiffs on the 2003 promotion list. Following these promotions, Montone became number five on the list.

Shortly after his appointment as Police Chief, Troy restructured the JCPD to make better use of personnel, including assigning sergeants to assume desk officer duties that some lieutenants had previously performed. Troy determined that in order to improve its organizational structure and to achieve cost savings, the JCPD required more sergeants, not lieutenants. In short, Troy adopted a policy of not making any promotions to lieutenant, and, in fact, no such promotions were made during his tenure as Police Chief. Montone contends that this was intended to unlawfully retaliate against her. Consequently, the Astriab plaintiffs allege that this policy of halting promotions to penalize Montone similarly impeded their ability to rise to the rank of lieutenant, to their resulting detriment. Troy's policy did not prohibit promotions to other ranks, and in 2005 promotions were made to sergeant, captain, inspector, and deputy chief.

Troy relied heavily on the advice of his Commander of Operations, Mark Russ, when making staffing decisions. Russ shared Troy's belief that lieutenants were more useful when not assigned to the desk. Russ made various recommendations to Troy. On November 29, 2004, Russ advised Troy that the Department was short five lieutenants and six sergeants. On January 20, 2005, Russ wrote to Troy that "optimum staffing needs" based "on [the] present operational structure" called for adding one captain, five lieutenants, and five sergeants, although those needs could be modified by impending retirements, transfers, and reassignments. On February 28, 2005, Russ advised Troy that "proper supervision without incurring overtime" would require the addition of one captain, eleven lieutenants, and seven sergeants. Finally, on May 12, 2006, Russ wrote to Troy about the "supervisory manpower shortage." He proposed adding one inspector, five lieutenants, and seventeen sergeants.

Following Troy's appointment as Police Chief, Montone heard from other officers that Troy was spreading rumors about her within the JCPD concerning her alleged anti-Healy activities. Specifically, it was rumored that Montone had distributed embarrassing photographs of Healy at his daughter's wedding, and that Montone had made threats against Healy's son and nephew that made Healy's wife cry and complain to Troy. While many witnesses recounted these rumors, Scerbo and DeStefano certified to hearing directly from Troy, in November or early December 2004, that Montone would not be promoted because Healy's wife believed that she had threatened her son. Montone, for her part, denied making the threats or distributing the photographs. During DeStefano's conversation with Troy, Troy commented "You're okay with us. You didn't try to hurt us." When DeStefano advised Troy, in response to Troy's inquiry, that he was behind Montone on the promotion list, Troy indicated that DeStefano would not be promoted because Healy did not want to promote her, and that he had to follow instructions. At his deposition, Troy reviewed DeStefano's certification, and declared those allegations untrue.

Whalen, another of the Astriab plaintiffs, similarly testified that Troy told him "you didn't hurt us." Whalen then asked about promotions, to which Troy replied, "I'm not making any lieutenants. I'm not promoting her," meaning Montone. Whalen protested the unfairness, which prompted Troy to mention the emotional response of Healy's wife to Montone's alleged threats against her son and nephew. Again Troy denied making these comments.

Healy was aware that Troy did not like Montone, but believed that Troy's distaste for her was limited to her 1993 lawsuit and collection of money from the City and the JCPD. Healy added that Troy thought Montone "was out sick too much."

Montone alleged that Troy referred to her in vulgar terms as "c**t" and "cow c**t." However, Troy never called her this directly. She named Captain Kevin Oras and Lieutenant (later Captain) Edwin Gillan as having personal knowledge. Oras certified that Troy told him that, "As long as I'm Chief, that cow c**t will never get promoted to lieutenant," and that she "will never go on the day tour." Montone testified that Oras told her that Troy used the phrases "c**t" and "cow c**t" "numerous times." Gillan disclaimed personal knowledge that Troy used such language, although the rumors and belief in them were widespread, and he might have relayed them to Johnston. Troy denied that he ever referred to Montone by those phrases. He also stated that he never heard anyone call her a cow, but when they were friends in 1993, she told him that she was called a cow.

In August 2005, Montone filed a notice of tort claim, alleging:

Upon information and belief, in or around November and December 2004, and again in or around August 2005, Chief Robert Troy made degrading statements about Valerie Montone, including statements that implied false facts about her professional abilities, qualifications and integrity, including but not limited to falsely accusing her of making threats against Mayor Healy's son and nephew, repeatedly claiming that he would never promote her to Lieutenant, and making sexually offensive and foul statements about her, including but not limited to calling her a "[c**t]."

 

Also in August 2005, Montone submitted the certifications of Astriab, DeStefano, Scerbo, Whalen, and Oras supporting her claims against defendants.

In September 2005, Montone supplemented her tort claim notice by providing copies of twelve postings to the Jersey City forum on the NJ.com website, none of which referenced her by name. Some discussed the lieutenant promotion situation, including a question "are they still pissed at the female that[']s on the list," and a response that "she should sue and seek punitive damages." One asserted that "her former boyfriend tried to abolish the Lt. rank," while two others made general comments about the politicization of hiring and promotions. Another stated that the City should promote all the candidates, but then called the female officer a "fraud" for having taken a makeup promotion exam, taking nearly 1400 sick days, suing for sexual harassment and winning "when a Rickie crony" suspiciously found corroborating "material," and "walking around like the queen mother during the second McCann administration." Finally, one simply repeated the word "Moooo" three times, while the last stated that the subject of the comments could be identified by looking at the picture of a cow on a milk carton. Notably, the Police Manual provisions on conduct and decorum prohibited off-duty and off-site disrespect or harassment of a fellow officer.

On May 4, 2006, Montone complained about three additional NJ.com postings. The first referenced the rumor that promotions were frozen to prevent "a certain female Sgt." from being promoted, the second objected to "her" being allowed to take a makeup promotion exam, and the third cautioned that "V.M. had her attorney pursue anyone who says anything negative about her."

Montone subsequently submitted ten more NJ.com postings from September 26 to November 10, 2006, both critical and supportive of her, while some were critical of Troy. One said that she had a reputation for sleeping with police chiefs. Four complained about her receiving a special chair, with one posting that included a photo of an ordinary chair with a dildo on the seat.

On November 13, 2006, plaintiff complained to Lieutenant Cornelius Hartnett in the BCI unit about three Internet postings. That same day, Hartnett confirmed them and called the posting of departmental business "inappropriate and disturbing." Hartnett considered the posting with the picture to be sexual harassment, and he advised Business Administrator Brian O'Reilly and the affirmative action officer to remind all Department employees about the policy against "posting departmental business in a public forum." Troy testified at his deposition that he was unaware of the NJ.com postings until after this litigation began.

Following receipt of the tort claim notice, the City advised Montone that its outside labor counsel would investigate her allegations. In January 2006, the firm reported that it found no evidence to support Montone's allegations, in particular her allegations that Troy made any "disparaging or discriminating comments" about her "professional abilities, qualifications and integrity" or "on account of her gender." It found valid reasons for the policy against any lieutenant promotions. It did not investigate the NJ.com postings. Montone's expert later opined that the investigation failed to satisfy "the minimal standards of professionalism," including impartiality.

Other female officers also filed complaints of discrimination after Healy's election. Peterson, who was African-American, filed a grievance about being transferred to a patrol division even though two white male lieutenants with less seniority, education, and experience than her were not transferred. In November 2005, Officer Mary Revell alleged numerous instances of discrimination and hostile work environment, including Troy's encouragement of her isolation and her selection without reason for drug testing, causing her to file suit in federal court against defendants and others in July 2006. In July 2007, civilian employee Michelle Zarro filed a sexual harassment and hostile work environment complaint against the JCPD. Two of Zarro's allegations are relevant to this case. The first is that Troy and a female coworker engaged in sexual innuendo and possibly other sexual conduct during a business trip. The second is that Captain John Corry Short repeatedly made sexual comments to her about Montone, but without using the word "c**t." Montone first learned of Short's comments from Zarro during the summer of 2007. The Jersey City Department of Administration investigated Zarro's complaint, found some allegations to have merit, and disciplined Short and several other officers. However, it found no evidence that might tend to substantiate Zarro's allegation against Troy.

The 2006 lieutenant promotion list became effective on February 16, 2006. It contained thirty-seven men and no women, including Montone. Scerbo was ranked number fourteen, Buckley twenty, Cullinane thirty-four, and DeStefano thirty-six. Astriab, Banks, LaBruno, and Whalen were not on the list.

Troy retired from the Department as of July 1, 2006. Healy promoted Thomas Comey to Police Chief, following an interview in which Comey indicated he believed the Department needed to continue the increase of "the patrol force" that Troy had begun. Comey agreed with Troy's policy of having sergeants rather than lieutenants on the desk. However, he wanted more lieutenants to serve as district or precinct detective commander, rather than sergeants, because that would put supervisors of higher rank than sergeant in control of the precinct at all times, and make them more familiar with the precincts and their "crime patterns." He did not want more lieutenants simply to maintain their proportion to the growing number of sergeants and patrol officers.

Healy supported Comey's desire to use the 2006 lieutenant promotion list, over the objection of Business Administrator O'Reilly, who thought that using the 2003 list would facilitate settlement of all pending litigation over lieutenant promotions. On December 18, 2006, Comey promoted twelve sergeants to lieutenant from the 2006 lieutenant promotion list.

According to Montone, the harassment did not cease after Troy's retirement. From late March through the end of May 2007, another discussion thread on NJ.com contained allegations, accompanied by blurry photographs, purporting to depict Montone asleep in a chair while on duty, which she denied. An Internal Affairs investigation ensued, which included periodic visits over a two-week period to see if she was sleeping. Ultimately it was determined that the pictures had been taken by Troy's niece, who was a civilian employee in the BCI unit. Also, Montone was asked by the Internal Affairs officer to surrender her firearm for a brief period, because "she was so stressed out, she was crying on the phone, she couldn't work. She was just so extremely upset that it caused concerns." Ultimately, Montone retired from the JCPD as a sergeant in April 2010.

Montone believed that the real motive for failing to promote her to lieutenant was retaliation for her prior lawsuit and other complaints, and that the ostensible policy of not promoting lieutenants was a mere pretext. Accordingly, on December 13, 2005, Montone filed suit in the Law Division asserting ten causes of action: (1) gender discrimination in employment, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; (2) employment retaliation, also in violation of the LAD; (3) retaliation for protected conduct, in violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; (4) retaliation for protected First Amendment speech, contrary to 42 U.S.C. 1983; (5) retaliation for political affiliation protected by the First Amendment, also in violation of 1983; (6) disparate treatment in violation of the Equal Protection Clause and 1983; (7) retaliation for speech protected by the New Jersey Constitution and the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2; (8) retaliation for political affiliation protected by the New Jersey Constitution and the CRA; (9) sexual harassment, in violation of the LAD; and (10) intentional infliction of emotional distress.

On January 19, 2006, defendants removed Montone's case to the United States District Court for the District of New Jersey. On June 27, 2011, the District Court granted defendants summary judgment on Montone's federal law claims, and remanded plaintiff's pendent state law claims to the Law Division. Counts Four and Five were dismissed with prejudice, and Montone voluntarily dismissed Count Six.

On February 3, 2012, following oral argument, the Law Division entered an order granting defendants' summary judgment motions, supplemented by a written opinion on February 10, 2012. The court also granted Montone's motion to dismiss her CEPA claim (Count Three) with prejudice, to avoid preclusion of her LAD claims. See N.J.S.A. 34:19-18.

The Astriab plaintiffs, who were all sergeants on the JCPD, shared Montone's belief that the end of lieutenant promotions was a pretext for Healy's and Troy's refusal to promote Montone, due to her gender and her support of Healy's opponent in the mayoral elections. In August 2006, they filed suit in the District Court, asserting claims for (1) gender discrimination and (2) retaliation, in violation of the LAD, and also, pursuant to 1983, for (3) retaliation related to Montone's political affiliation in violation of the First Amendment and (4) disparate treatment in violation of the Fourteenth Amendment.

On August 16, 2011, the District Court granted summary judgment dismissing their federal claims. Declining to exercise supplemental jurisdiction over the remaining state law claims, the District Court dismissed them, without prejudice. The Astriab plaintiffs then essentially re-filed in the Law Division, which on March 16, 2012, granted defendants' summary judgment motion, solely on the ground that these were derivative claims that had lost their predicate.

Montone and the Astriab plaintiffs now appeal the Law Division orders dismissing their state law claims on summary judgment. In the interim, they successfully appealed the dismissal of their federal claims to the Third Circuit Court of Appeals, which invalidated the District Court's findings and conclusions, and vacated its judgments. Montone v. City of Jersey City, 709 F.3d 181 (3d Cir. 2013).

II.

The summary judgment standard is well-established. A trial court must grant a summary judgment motion if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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 alsoBrill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 529-30 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If the evidence submitted on the motion "'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

When a party appeals from a trial court order granting or denying a summary judgment motion, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Thus, we must determine whether there was a genuine issue of material fact, and if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review legal conclusions de novo. Henry, supra, 204 N.J. at 330.

III.

These appeals require us to address virtually every count asserted in Montone's complaint, encompassing her LAD, CRA, and intentional infliction of emotional distress claims, and their correlation to the federal claims that were dismissed but have now been reinstated.

A.

We begin our analysis with Montone's claims based on speech and political retaliation protected by the New Jersey Constitution and the CRA (Counts Seven and Eight respectively), that were dismissed by the motion judge based on the earlier District Court decision dismissing Montone's analogous federal claims (Counts Four and Five). Montone argues that the motion judge erred in dismissing her state constitutional claims based on collateral estoppel. In light of the Third Circuit's ruling reversing the District Court, we agree.

"[C]ollateral estoppel, or issue preclusion, bars the relitigation of an issue that has already been addressed in a prior matter . . . ." Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 423 (App. Div. 2011), certif. denied, 210 N.J. 478 (2012). Collateral estoppel requires a party to establish:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

 

[First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (citation omitted).]

 

In reversing the decision of the District Court on free speech retaliation, upon which the motion judge relied, the Third Circuit explained that federal case law had rejected a bright-line rule that a plaintiff's complaint about discrimination that did not affect anyone else could never represent an issue of public concern under the First Amendment. Montone, supra, 709 F.3d at 193-195. The court found that "[t]here are at least three separate instances of alleged sexual harassment here, and the inappropriate conduct was not directed solely at Montone.1" Accordingly, the court held "that Montone was engaged in protected activity as her speech involved a matter of public concern." Id. at 195. While noting that at trial Montone would still need to demonstrate that she was acting as a citizen and not as a police officer when she engaged in what she claimed to be protected conduct, and that her speech was a substantial or motivating factor in her non-promotion, the Third Circuit concluded that the District Court "erroneously granted summary judgment . . . on Montone's free speech claim by concluding that her gender discrimination complaints did not involve matters of public concern." Ibid.

We find the Third Circuit's reasoning and holding persuasive, if not conclusive, and consequently we reverse the dismissal of Montone's state free speech claim. New Jersey courts have recognized their ability to consider and provide remedies for claims of free speech retaliation, employing a similar analysis. See Karins v. City of Atl. City, 152 N.J. 532, 548-49 (1998).

We likewise conclude that the trial court's dismissal of Montone's state political retaliation claim, to the extent it was based on collateral estoppel, was equally erroneous in light of the Third Circuit's subsequent ruling. The Third Circuit faulted the District Court's dismissal of Montone's federal political retaliation claim on numerous grounds. First, the District Court erred by making credibility determinations, weighing the evidence against Montone, and failing to draw all justifiable inferences in favor of Montone, the non-movant. Id. at 190-91. Specifically, the Third Circuit determined it would not be unreasonable to construe Troy's "you didn't hurt us" statements to DeStefano and Whalen as referring to Montone's opposition to Healy. Id. at 191. Second, "the District Court, despite appearing to have accepted Montone's argument that Jersey City and Troy's justifications for not promoting any lieutenants were pretextual, erred in concluding that a jury could not draw from that fact an inference that the non-promotion of Montone was intended to retaliate for her political activity." Ibid. Rather, "[b]y presenting evidence that casts doubt on Troy's articulated rationale for suspending all promotions to the lieutenant position, Montone is entitled to have the trier-of-fact decide whether it was a general dislike of her that motivated Troy, or whether it was personal animosity that sprung from Montone's vocal opposition to the candidacy of Troy's patron." Ibid. Third, "[t]he District Court's dismissal of a pattern of political patronage in Jersey City was also improper." Id. at 192. The Third Circuit noted:

In this case, there are other facts that, when combined with evidence of political patronage, suffice to defeat summary judgment. In particular, there is the evidence of recommendations that the number of lieutenants on the police force be increased as well as evidence that there were promotions to every other rank but lieutenant during Troy's tenure as Police Chief that, when considered in combination with a history of political patronage, supports a reasonable inference that Montone was not promoted in retaliation for her political activity.

 

[Ibid.]

 

Finally, "[t]he District Court also erred in giving substantial weight to evidence that Troy promoted at least one of candidate Manzo's supporters, Edwin Gillan." Ibid. While relevant, this did not defeat Montone's claim of political retaliation, "especially given the evidence of how active Montone was in supporting Manzo." Ibid.

The motion judge dismissed Count Eight of Montone's complaint on the additional basis that the CRA does not establish a cause of action for political retaliation, relying on an unpublished federal case. It is true that neither the New Jersey Constitution nor the CRA expressly affords a cause of action for political affiliation retaliation. However, the CRA is modeled on 42 U.S.C.A. 1983. Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (App. Div.), certif. denied, 208 N.J. 366 (2011). It affords a private right of action against persons who act "under color of law" to interfere with "rights, privileges or immunities" secured not only "by the Constitution or laws of this State," but also "by the Constitution or laws of the United States." N.J.S.A. 10:6-2(c). New Jersey courts have accordingly recognized that they may use and consider the CRA and provide remedies for claims of political affiliation, which they would decide under the standards of 42 U.S.C.A. 1983 and the associated federal case law. See Commc'ns Workers of Am. v. Whitman, 298 N.J. Super. 162, 168-71 (App. Div.), certif. denied, 152 N.J. 191 (1997). The required elements for such claims brought in state court are therefore necessarily identical to those brought in federal court. The findings of the Third Circuit are equally applicable here, and accordingly we reinstate Montone's state political retaliation claim.

B.

We next turn to the motion judge's dismissal of Montone's remaining claims that were not predicated on application of the collateral estoppel doctrine.

As to Count One, the trial court ruled that a necessary element of Montone's prima facie case for gender discrimination by failure to promote required her to "prove that males with similar or less qualifications were promoted." The court found that Montone's claim failed because no one was promoted to lieutenant during Troy's tenure as Police Chief. Even if the court considered the allegations of "Troy's vulgar references" and all other facts in the light most favorable to Montone, there was still "overwhelming" evidence "that gender was not a factor in Chief Troy's decision to reorganize the Police Department and discontinue all promotions to Lieutenant."

Montone argues that the court erred in dismissing this LAD gender discrimination claim. She contends that the court failed to consider evidence of motive such as Troy's declaration that he would never promote her, coupled with his use of the vulgar words "c**t" and "cow c**t," and his acts of gender discrimination against other women, which included both harassment or denigration of them and the favoring of male employees, even if those acts were time-barred. The promotion of one woman, Christine Peterson, to lieutenant was insufficient to disprove discrimination, and the resumption of lieutenant promotions after Troy retired constituted relevant evidence of pretext.

The LAD prohibits discriminatory employment practices. Viscik v. Fowler Equip. Co., 173 N.J.1, 13 (2002). To prove employment discrimination under the LAD, New Jersey courts have adopted the burden-shifting analysis established in McDonnellDouglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Viscik, supra, 173 N.J.at 13. Under that analysis, a plaintiff must first establish a prima facie case of discrimination. Viscik, supra, 173 N.J.at 14. "All employment discrimination claims require the plaintiff to bear the burden of proving the elements of a prima facie case." Victor v. State, 203 N.J. 383, 408 (2010). "[T]he elements of the prima facie case vary depending upon the particular cause of action." Ibid.

"Identifying the elements of the prima facie case that are unique to the particular discrimination claim is critical to its evaluation." Id. at 410. The elements of a retaliation claim under the LAD "are that the employee 'engaged in a protected activity known to the [employer,]' the employee was 'subjected to an adverse employment decision[,]' and there is a causal link between the protected activity and the adverse employment action." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 547 (2013) (quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)).

Once a plaintiff establishes these elements of a prima facie case, the burden shifts to the defendants, who "must articulate a legitimate, non-retaliatory reason" for the employment action. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995) (citing Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990)). If the defendants successfully do so, the burden returns to the plaintiff to then demonstrate retaliatory intent motivated the defendants' actions, rather than the legitimate reason proffered. Id. at 549, 551. This may be done "either indirectly, by proving that the proffered reason is a pretext for the retaliation, or directly, by demonstrating that a retaliatory reason more likely than not motivated [the] defendant[s'] action." Woods-Pirozzi, supra, 290 N.J. Super. at 274 (citing Romano, supra, 284 N.J. Super. at 551). We have explained:

All that is needed is some evidence from which a factfinder could infer that the employer's proffered reason was either a post hoc fabrication or otherwise did not actually motivate the decision. A plaintiff must demonstrate weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered reason such that a rational factfinder could find the reason unworthy of credence.

 

[Svarnas v. AT&T Commc'ns, 326 N.J. Super. 59, 82 (App. Div. 1999) (internal citations omitted).]

 

When, as here, the LAD claim is a discriminatory failure to promote, the prima facie case has four prongs. Employees must show that: (1) they were members of a class that the LAD protects; (2) they were objectively qualified for the desired position or rank; (3) they were denied the position or rank; and (4) the employer gave the position to persons with similar or lower qualifications. Dixon v. Rutgers, The State Univ. of N.J. 110 N.J. 432, 443 (1998); Harris v. Middlesex Cnty. Coll., 353 N.J. Super. 31, 42 (App. Div. 2002); Greenberg v. Camden Cnty. Voc. & Technical Sch., 310 N.J. Super. 189, 198 (App. Div. 1998). The prima facie case is to be determined "solely on the basis of the evidence presented by the plaintiff, irrespective of [the] defendants' efforts to dispute that evidence." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 448 (2005). Where the employer has moved for judgment, the employee is also entitled to "all legitimate inferences that derive" from his or her prima facie case. Id. at 448-49.

The promotion of one member of the plaintiff's protected class does not necessarily preclude the plaintiff's claim. "[T]he fact that one member of a protected group is not a victim of discrimination does not preclude others in the group from prevailing on a discrimination claim." Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 111 (1990). Accord DeCapua v. Bell Atl.-N.J., Inc., 313 N.J. Super. 110, 123-26 (Law Div. 1998) (discrimination otherwise actionable under LAD need not have been suffered by all employees in the plaintiff's protected class). Even if the employer had acted fairly "to the class of women employees as a whole[, that] could not justify unfairness to the individual female employee because the 'statute's focus on the individual is unambiguous.'" Connecticut v. Teal, 457 U.S. 440, 454-55, 102 S. Ct. 2525, 2534-35, 73 L. Ed. 2d 130, 141-42 (1982) (addressing a Title VII failure to promote claim) (citation omitted).

Essentially, in emphasizing that no one, either male or female, was promoted to lieutenant, the trial court's focus was on the fourth prong. Instructive here is Williams v. Pemberton Township Public Schools, 323 N.J. Super. 490, 498-99 (App. Div. 1999), where we cited Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595-96 (1988), for not requiring a plaintiff to show that the employer hired someone outside his protected class, and requiring instead only a showing that the employer continued seeking candidates for the position with no greater qualifications than plaintiff. The panel discussed how, in failure-to-promote cases, our Supreme Court and the federal courts sometimes held that a prima facie case required the hiring of someone outside the plaintiff's protected class, while at other times it only required that the employer reject the plaintiff for a prohibited reason and then hire or continue seeking candidates who were no more qualified. Williams, supra, 323 N.J. Super. at 499-502. We rejected a rigid insistence on the hiring of a person outside the plaintiff's protected class, in order to preserve the claim of "a plaintiff who was replaced by an individual within the protected class but could show other circumstances indicating unlawful discrimination." Id. at 502-03.

Williams apparently did not contemplate the question posed by this case, i.e., whether the fourth prong of a failure-to-promote claim can be satisfied when the desired promotion was not made available to anyone. Cf. Craig v. Surburban Cablevision, 140 N.J. 623, 626-29 (1995) (claim allowed against employer that eliminated complainant's entire department but later hired contractor to perform its functions). Nonetheless, denying Montone a remedy for this claim under these circumstances would contradict the LAD's broad remedial purposes. See e.g., Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98, 108-09 (2010); L.W. ex rel. L.G. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381, 407 (2007). At the summary judgment stage, where credibility assessments are impermissible and Montone is entitled to all favorable inferences, here there was sufficient evidence from which a jury could infer that defendants' motives for ending lieutenant promotions included punishing Montone for her protected activity, rather than being purely economic. Denying the remedy as a matter of law in such circumstances would simply reward those defendants willing to go to such extreme lengths to disguise a retaliatory motive.

Construing the record in Montone's favor, it sufficiently supports a prima facie case for discriminatory failure to promote. It is undisputed that being a woman placed her in a protected class, that her inclusion on the 2003 lieutenant promotion list established her objective qualification, and that she was not promoted. Neither the promotion of Peterson just before Troy became Police Chief, nor defendants' refusal to make any lieutenant promotions, necessarily precluded a jury from finding that gender-based discrimination was a substantial motive for the policy of denying all lieutenant promotions.

While defendants proffered the legitimate nondiscriminatory reasons of improving operations and reducing overtime costs, Montone was permitted to discredit those reasons as a pretext.

Here, the string of memos from Russ to Troy about the continuing need for more lieutenants, even if they would not be assigned to the desk, and the large number of promotions to lieutenant that were made shortly after Troy's retirement, sufficiently support the inference that defendants subordinated the Department's staffing needs to their desire to avoid promoting Montone at all costs. We further note the District Court's finding, cited with approval by the Third Circuit, that Montone "presented sufficient evidence to show that the reasons proffered by Jersey City and Troy for her non-promotion may have been pretextual." Montone, supra, 709 F.3d at 192. Additionally, if believed, Montone's direct evidence of Troy's discriminatory animus-reflected in the use of vulgar and demeaning sexual references-could support an inference that the failure to promote Montone was due to discrimination.

C.

We now turn to Count Two, in which Montone alleges employment retaliation in violation of the LAD. Specifically, she claims that she was denied a promotion to lieutenant in retaliation for (1) her 1993 lawsuit against the City; (2) her refusal to pay Troy money from that earlier settlement; (3) her report in 2002 that Johnston was sexually harassed; (4) her 2003 report that she was harassed by Police Director Carter; and (5) her pre-suit complaints about sexual harassment.

The LAD bans "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" to enforce "any right granted or protected by this act." N.J.S.A. 10:5-12(d). To claim retaliation in violation of the LAD, employees must show that "(1) they engaged in a protected activity known by the employer; (2) thereafter their employer unlawfully retaliated against them; and (3) their participation in the protected activity caused the retaliation." Craig, supra, 140 N.J. at 629-30. Accord Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125 (2008).

In dismissing this count, the motion judge found that saving costs was a legitimate, non-discriminatory reason for the reorganization, and that Montone failed to prove that retaliation against her was "the sole purpose of" the reorganization. He then determined that the evidence could not permit a "reasonable juror" to find that Troy's "reasoning was fabricated or . . . is merely a pretext for discriminatory retaliation." He further found the retaliation claim barred by the absence of any lieutenant promotions. We disagree, for the reasons that we have previously stated.

Further, Montone presented evidence of a retaliatory motive that included Healy's testimony that Troy was disgruntled over Montone's institution and settlement of her 1993 lawsuit. A jury could also have found that the Internal Affairs investigation following receipt of photos purporting to depict Montone sleeping was retaliatory because it was sparked by Troy's niece. Montone's protected activity also included her efforts to "advance" Johnston's sexual harassment claim, which Troy firmly believed had occurred. This evidence at the very least presented a jury question, and summary judgment dismissing Montone's retaliation claim was therefore improvidently granted.

D.

Count Nine of Montone's complaint alleges hostile environment sexual harassment under the LAD. The LAD prohibits employment discrimination "because of" personal characteristics including gender. N.J.S.A. 10:5-4. A discrimination claim may be based on the employer's creation or tolerance of a hostile work environment. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601-03 (1993). A hostile work environment claim requires an employee to prove that the conduct in question "would not have occurred but for" her gender, and that the conduct was "severe or pervasive enough" to make a "reasonable" employee of that gender "believe that . . . the conditions of employment are altered and the working environment is hostile or abusive." Id. at 603-04. Accord Shepherd v. Hunterdon Dev. Ctr, 174 N.J. 1, 25-26 (2002), rev'd on other grounds, 74 N.J. 1 (2002).

The Lehmann test uses an "objective" standard rather than "the reaction of the individual plaintiff," because the LAD's purpose "is to eliminate real discrimination and harassment." Lehmann, supra, 132 N.J. at 611-12. That standard encompasses the broad span of reasonable reactions by "both sensitive and tough people," including a "normal and common" emotional component. Id. at 613-14. The reaction is to the workplace environment, so if sexual comments outside the workplace contribute to the workplace's hostility, it is relevant even if the plaintiff was not specifically aware of that harassment. Blakey v. Cont'l Airlines, 164 N.J. 38, 57 (2000).

In analyzing Montone's sexual harassment hostile environment claim

We begin with a recitation of the relevant principles of law. It is well-established that the LAD's overarching goal is the eradication of the cancer of discrimination. In striving to be faithful to the clear will of the Legislature, we have recognized and given effect to the LAD's broad remedial purposes.

 

As such, we have recognized that freedom from discrimination is one of the fundamental principles of our society, and we have described sex-based discrimination as being "peculiarly repugnant in a society which prides itself on judging each individual by his or her merits."

 

[Battaglia, supra, 214 N.J. at 518 (internal citation and quotation marks omitted).]

 

Here Montone alleged that a hostile work environment was created and perpetuated by Troy regularly referring to her as a "c**t" and "cow c**t" in his conversations with other members of the JCPD. These vulgarities were never uttered to her directly, and the source of Montone's knowledge of them is primarily rumor and hearsay. However, Oros certified to having personally heard Troy utter these phrases numerous times. Repeated use of such epithets by Montone's commanding officer would likely increase their severity, since the "unique role [of supervisors] in shaping the work environment" includes "the duty to prevent, avoid, and rectify invidious harassment in the workplace." Taylor v. Metzger, 152 N.J. 490, 503 (1998).

The second source of Montone's hostile work environment claim consists of the sexually offensive and disparaging comments that she alleges were made about her on the NJ.com website, and that defendants knew about but failed to reasonably act upon.

"An employer has a clear duty not only to take strong and aggressive measures to prevent invidious harassment, but also to correct and remediate promptly such conduct when it occurs." Taylor, supra, 152 N.J. at 504. Nonetheless, the employer must have knowledge of the conduct creating the hostile work environment in order to be liable. Ibid.

Similarly, while "employers do not have a duty to monitor private communications of their employees," they "do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace." Blakey, supra, 164 N.J. at 62. For example, if employees post harassing workplace-related comments to an internet forum that the employer does not control, the employer may still have a duty in appropriate circumstances to police the forum. Id. at 45-46. The test is whether the internet forum is "so closely related to the workplace environment and beneficial to [the employer]" that the forum is part of the workplace. Id. at 46.

The Court explained that it is possible for harassment at a facility outside the worksite to have sufficient impact on the work environment to give the employer a duty to address it. Id. at 56-57. "Conduct that takes place outside of the workplace has a tendency to permeate the workplace," and an employee "need not actually hear the harassing words outside the workplace so long as the harassment contributes to the hostile work environment." Id. at 57. If the duty exists, liability is assessed under the same standards as when the conduct that created the hostile environment occurred at the worksite. Id. at 58 (citing the liability standards of Lehmann, supra, 132 N.J. at 623).

Here, Montone admits that NJ.com was an independent website that the City could not control, and she has not alleged a specific workplace benefit that the City or the JCPD could have derived from it, let alone a "substantial workplace benefit" as Blakey requires. Nonetheless, while defendants lacked authority to regulate the NJ.com website itself, they may still have had a responsibility under their own standards to determine whether the postings constituted off-site or off-duty disrespect or harassment of a fellow officer, which the Department's manual prohibited. Troy stated that officers could be disciplined for such off-duty misconduct directed at a subordinate. Director Samuel Jefferson invoked "a whole litany" of off-duty misconduct for which officers could be disciplined, and Comey concurred. O'Reilly added that an officer's off-duty use of a personal computer to sexually harass another officer should be investigated as a violation of City policy. Same is consistent with a police department's recognized interest in regulating an officer's off-duty conduct in order to preserve good order and morale. See Karins, supra, 152 N.J. at 547-52, 556-57 (such regulation is legitimate, but must be balanced against officer's First Amendment right to speak freely on matters of public concern).

The trial court here in effect applied Blakey as if the City and the JCPD were private employers, without accounting for their right, if not obligation, to investigate and attempt to remedy off-duty sexual harassment. It made its ruling before addressing whether the NJ.com website affected the workplace, and whether a reasonable juror could conclude that the postings were made by City employees and/or on City computers. In doing so, the trial court inappropriately granted defendants summary judgment.

E.

As to Count Ten, Montone alleges that the internet postings, the manifold incidents of harassment and gender-based slurs, combined with defendants' inadequate investigations and efforts to stop them, combined to evidence defendants' intent that she suffer mental distress.

To establish a prima facie case of intentional infliction of emotional distress, a plaintiff must show that: (1) the defendant acted intentionally; (2) the defendant's conduct was "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'";

(3) the defendant's actions proximately caused him/her emotional distress; and (4) the emotional distress was "'so severe that no reasonable [person] could be expected to endure it.'" Segal v. Lynch, 413 N.J. Super. 171, 191 (App. Div.) (alteration in original) (quoting Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988)), certif. denied, 203 N.J. 96 (2010).

Here Montone established a prima facie showing, sufficient to defeat defendants' summary judgment motion. Her evidence of years of harassment, accompanied by inadequate investigations and responses, if proved at trial could establish the first two elements. On the elements of severe emotional distress and causation, the trial court observed that Montone had provided evidence of "significant mental health problems and emotional distress," and presented an expert opinion that her "emotional distress started because of [d]efendants' actions." Giving Montone the benefit of all reasonable inferences, we conclude that she made a sufficient threshold showing to proceed with this claim.

F.

Having entered summary judgment dismissing all of Montone's claims, the trial court stated it "need not address the other issues at summary judgment, specifically the issues of punitive damages, municipal liability, the individual liability of Mayor Healy and Chief Troy, the statute of limitations relating to [Montone's] LAD claims[,] and [Montone's] failure to amend her Complaint to include the actions that took place after the Complaint was filed." The trial court also declined to decide similar issues in the Astriab action. In light of our decision to reinstate and remand all claims that were dismissed on summary judgment, we likewise remand these issues to the trial court for further findings of fact and conclusions of law.2

IV.

We similarly conclude that the trial court erred in granting summary judgment dismissing the Astriab plaintiffs' action. In doing so, it viewed plaintiffs as having proceeded under principles similar to those in Portee v. Jaffee, 84 N.J. 88 (1980) (witness to accident claimed infliction of emotional distress), by claiming that they "were disadvantaged because of something that is alleged to have happened to Ms. Montone." It accordingly ruled that the dismissal of her complaints in state and federal court compelled the dismissal of this action on summary judgment. Its only further explanation was that "we'll see what happens on the appeal, but I don't see that these gentlemen have any standing whatsoever," because "they're all trying to hitch their wagon to Ms. Montone and that's not the way it works as far as I know."

The District Court's decision dismissing the Astriab plaintiffs' federal claims was also reversed by the Third Circuit in its consolidated opinion in Montone, supra. The Third Circuit concluded that these plaintiffs had standing to assert that, as a result of defendants' illegal retaliation against Montone, they did not receive a promotion for which they were eligible. 709 F.3d at 199. "That the retaliatory conduct was not directed at the Astriab defendants is not dispositive" where protected federal interests are present. Ibid. Finally, the Third Circuit found that, "[w]hen viewed in the light most favorable to the plaintiffs, the evidence presented in opposition to the summary judgment motions demonstrates that there is a genuine issue of material fact as to whether Montone's political conduct was a motivating factor in the defendant's decision not to promote the Astriab plaintiffs."

We hold that a corresponding analysis of the Astriab plaintiffs' remaining state law claims compels the same result.

Standing is a question of law we review de novo. Courier-Post Newspaper v. Cnty. of Camden, 413 N.J. Super. 372, 381 (App. Div. 2010); In re Project Authorization Under N.J. Register of Historic Places Act, 408 N.J. Super. 540, 555 (App. Div. 2009), certif. denied, 201 N.J. 154 (2010). The "traditional criteria" for assessing standing are "whether the party has a sufficient stake in and real adverseness with respect to the subject matter, and whether the party will be harmed by an unfavorable decision." In re Grant of Charter Sch. Application of Englewood, 320 N.J. Super. 174, 222 (App. Div. 1999), aff'd as mod. on other grounds, 164 N.J. 316 (2000). Litigants generally do not have standing "to assert the rights of third parties." Stubaus v. Whitman, 339 N.J. Super. 38, 48 (App. Div. 2001), certif. denied, 171 N.J. 442 (2002). In this case, plaintiffs are asserting their own rights to promotion. Denying them the right to claim that they should have been promoted, but for defendant's unlawful treatment of Montone, would affect them adversely.

Our Supreme Court has recognized that the statutory language and the legislative purpose of the LAD afford coworkers of the complainant their own retaliation claims against the employer in appropriate circumstances. Craig, supra, 140 N.J. at 629-33. There the Court explained that the express language of N.J.S.A. 10:5-12(d) protected not only those who file discrimination complaints or "testified or assisted in any proceeding under" the LAD, "but also persons who merely 'aided or encouraged' another person in the exercise of that person's rights under the LAD." Id. at 629. It held that the Legislature intended to confer standing on such persons in order to deny employers the opportunity of discouraging LAD claims through the coercion of friends and coworkers. Id. at 630-31. Notably, the Astriab plaintiffs certified and deposed in support of Montone's complaints, which was protected activity of their own, which defendants knew or should have known.

Further, the Court in Craig rejected a proposed distinction between supporters whom the employer intended to harm, and supporters who were "merely 'innocent victims'" of an adverse action that the employer imposed solely "to disguise its direct retaliation" against the complainant. Id. at 632-33. Here, all of Montone's various federal and state claims have now been reinstated. Accordingly, the Astriab defendants are entitled to demonstrate that they were victims of a policy unlawfully aimed at denying Montone, and consequently themselves, the right to be promoted to lieutenant.

Reversed and remanded. Parenthetically we note that at oral argument the parties expressed their uniform desire that all claims be adjudicated in a single forum, whether federal or state, an issue we leave for future determination.

1 The three instances are the sexual harassment lawsuit from the 1990s, Montone's complaint against Carter from 2002-2003, and Montone's advancement of Johnston's sexual harassment claim against Troy from 2002.

2 As noted infra, it is possible that Montone's state law claims will be restored to the federal lawsuit, and that this entire litigation will eventually be tried in federal court. If so, it may be more efficient for the federal court to decide all of these issues.