CATHYANN SWIDERSKI v. CATHYANN SWIDERSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6805-03T26805-03T2

CATHYANN SWIDERSKI,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT

CORPORATION, CINDY B.

CARROL and Z. WAYNE

JOHNSON,

Defendants-Respondents.

_________________________________________

 

Argued: October 11, 2005 - Decided:

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, ESX-L-6250-02.

Dennis M. Mahoney argued the cause for appellant.

Nicole S. Morgan argued the cause for respondents (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Morgan, Deputy Attorney General, on the brief).

PER CURIAM

Cathyann Swiderski appeals from a summary judgment dismissing, in its entirety, her complaint against her employer, New Jersey Transit Corporation (NJT) and her superiors Cindy B. Carroll and Z. Wayne Johnson. We affirm.

Swiderski started working at NJT in 1984. One year later, she was promoted to Manager of Employee Benefits. In 1991, she became the Manager of Career Development. In 1992, as a result of a major corporate restructuring at NJT, Swiderski's position was changed to Career Development Administrator, which is her present position.

Swiderski alleged that she had suffered physical and emotional injuries resulting from the treatment by Carrol. She sought damages for negligent and intentional infliction of emotional distress, breach of the implied covenant of good faith and breach of contract.

In 1992, as a result of the restructuring, Carrol became Manager of Organizational and Employee Development Training Programs. Thus, Swiderski started reporting to Carrol. In 1995, Carrol became the Director of the Department in which Swiderski worked. Their subordinate/supervisor relationship was tense, stressful and very unhappy. Swiderski alleged that Carrol emotionally battered her in an effort to drive her out of NJT. She was treated differently by Carrol than most of the other people in the Department. Carrol would embarrass Swiderski in front of her co-workers, call her names, and make fun of Swiderski in front of her employees. Swiderski alleges that she was the victim of verbal abuse and screaming by Carrol. During a meeting, Swiderski was threatened with a demotion and the possible elimination of her position. On another occasion, Carrol tried to double Swiderski's workload. In an effort to relieve some of her workload, Swiderski resorted to hiring an intern, out of her own pocket, to come into work on Saturdays with her.

Swiderski complained on a number of occasions about Carrol's treatment to Z. Wayne Johnson, the Assistant Executive Director of Human Resources. She also complained to the Director of Human Resources, Joe Allen. Joe Allen admitted to Swiderski that he was aware of the problems being created by Carrol. Swiderski also alleged that the Medical Department of NJT was well aware of the physical toll that Carrol's actions had had on the employees in her department. Johnson was aware of the complaints about Carrol's treatment of her employees. Swiderski also complained to Carrol herself.

Swiderski alleged that she became physically ill from Carrol's extreme workplace harassment. She experienced shaking, headaches and faintness. She began seeing Dr. Rowe in NJT's in-house medical department. Swiderski never had a problem with her blood pressure before working for Carrol. But, at one point while working under Carrol, , Swiderski's blood pressure rose to 220/110. The nurse at NJT told Swiderski that she should see her physician because her blood pressure was so high she could potentially suffer a stroke. As a result, she went to see her own physician, Dr. Nathan Perilstein. Swiderski also started seeing a psychologist, Roger Maitland, Ph.D., to help her deal with her work related anxiety and distress. At the request of the NJT nurse, Swiderski was also examined by another psychologist, Jan M. Chrobok, D.O., a Diplomat of the American Board of Psychiatry and Neurology.

According to Swiderski, the impact of Carrol's conduct on her forced her to go out on sick leave from June 2000 to mid December 2000. During this period, Swiderski was paid workers' compensation benefits because the NJT physician determined that her disability was occupational. Johnson did not want the disability to be occupational and, therefore, directed that she receive state disability benefits rather than workers' compensation benefits. Workers' compensation benefits would have paid Swiderski 100% of her salary. State disability only paid her approximately $200 per week. While on sick leave, Swiderski had to pay for her medical coverage out of her own pocket. She estimates that her lost wages for this period were $18,000.

After the lawsuit was filed, NJT, Carroll and Johnson answered and moved for summary judgment. In opposition to summary judgment, Swiderski submitted a certification detailing the allegations of the complaint. She also submitted the reports prepared by her two treating physicians. Swiderski also submitted the certifications of three co-workers, Deborah Eadie, Paula Jenkins and Patricia Kesche.

Judge Merklebach found that Swiderski's claim was barred by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Specifically, the judge concluded that N.J.S.A. 59:13-3 precluded a claim grounded on implied contractual terms. The judge also found that Swiderski had not presented evidence sufficient to establish that she sustained a "permanent loss of a bodily function" as required by N.J.S.A. 59:9-2(d).

The judge further determined that Swiderski's emotional distress claims failed because Carroll's alleged conduct was not extreme or outrageous. Moreover, the judge found that Swiderski's tort claims were barred by the workers' compensation exclusive remedy provision (N.J.S.A. 34:15-8) because the evidence presented by Swiderski was insufficient to allow a jury to find that the employer acted with knowledge that it was substantially certain to produce injury. See Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985).

On appeal, Swiderski contends the following: (1) the judge erred in dismissing her complaint for emotional distress; and (2) her complaint against NJT is not barred by the exclusive remedy provision set by N.J.S.A. 34:15-8. We disagree and affirm substantially for the reasons stated by Judge Donald W. Merkelbach in his July 9, 2004 oral decision.

We merely add the following comments. Swiderski argues that her emotional and psychological injuries satisfy the TCA threshold. She relies on Collins v. Union County Jail, 150 N.J. 407 (1997) and Willis v. Ashby, 353 N.J. Super. 104 (App. Div. 2002) to support her argument that emotional and psychological injuries qualify as a permanent loss of a biological function. In Collins, the Supreme Court held that "psychological and emotional injuries should be treated the same as physical injuries under the [TCA's] threshold provision when they arise in a context similar to that which precipitated plaintiff's injuries." Collins, 150 N.J. at 423. The Collins plaintiff, a prisoner, suffered emotional and psychological injury after he was raped by a prison guard. In Willis, we expanded the Collins holding to apply to the plaintiff's psychological injuries in the context of the birth of a stillborn infant due to the negligence of a "public entity" physician. Here, although Swiderski's injuries are significant to her, they do not rise to the level of emotional and psychological harm suffered by the plaintiffs in Collins and Willis. Further, given the narrow holdings in Collins and Willis, her injuries do not meet the TCA threshold.

Swiderski also contends that her claim is not barred by the exclusive remedy provision of the Workers' Compensation Act (WCA) because she can prove that defendant acted intentionally. Thus, she claims to come within the intentional exception. The Supreme Court has held that, "[A]n employer who causes the death or injury of an employee by committing an intentional wrong will not be insulated from common law suit." Laidlow v. Hariton Machine Co., 170 N.J. 602, 606 (2002). There, the Supreme Court stated:

[I]n order for an employer's act to lose the cloak of immunity of N.J.S.A. 34:15-8, two conditions must be satisfied: (1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize.

[Id. at 617.]

We have held that: "An employer's knowledge and appreciation of a significant risk does not constitute the requisite intent needed to circumvent the Workers' Compensation statute." Delane v. City of Newark, 343 N.J. Super. 225, 240 (App. Div. 2001) (citing McGovern v. Resorts Int'l Hotel, 306 N.J. Super. 174, 181 (App. Div. 1997); see also Laidlow, supra, 170 N.J. 602. Here, the motion judge applied the test set forth in Laidlow and found that Swiderski had not shown that her employer was on notice of "circumstances substantially certain to lead to injury or death." He noted Swiderski's high blood pressure, the certifications of the three other employees who worked for Carrol and Swiderski's own complaints. The judge found that, "a demanding manager is a simple fact of industrial life" and the Legislature did not intend these claims to be included in the WCA. We conclude that the judge's finding is supported by the record.

 
Swiderski's emotional distress claims fail under Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 366-67 (1988). We agree with the judge that Swiderski's claims are insufficient to carry her over the WCA's' exclusive remedy bar.

Affirmed.

(continued)

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A-6805-03T2

 

January 4, 2006