DEMESHIA SELDON v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF PATERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2839-06T22839-06T2

DEMESHIA SELDON,

Plaintiff-Appellant,

v.

YOUNG MEN'S CHRISTIAN

ASSOCIATION OF PATERSON,

Defendant-Respondent.

______________________________________

 

Argued December 4, 2007 - Decided

Before Judges Fuentes and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Docket No. L-1520-04.

Andrew M. Moskowitz argued the cause for

appellant (Deutsch Atkins, P.C., attorneys;

Mr. Moskowitz, on the brief).

Richard P. Blender argued the cause for

respondent.

PER CURIAM

Plaintiff Demeshia Seldon appeals from orders denying her motion for a new trial and entering final judgment in favor of defendant Young Men's Christian Association of Paterson ("YMCA"). Plaintiff alleged retaliatory termination of employment in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14. She claimed she was discharged because she reported an incident of suspected child abuse - a touching of one three-year-old child by another three-year-old child - to the Division of Youth and Family Services (DYFS). The jury found that defendant did not retaliate against plaintiff "by terminating her because she reported" the incident to DYFS or "because she objected to or refused to participate

in . . . not notifying DYFS." Judge Humphreys denied defendant's motion for a new trial for reasons stated in a written decision of October 3, 2006.

In November 2001, plaintiff accepted employment with the YMCA as director of Even Start, a literacy project for low-income families. Several of the students participating in Even Start also attended Memorial Day Nursery, which was affiliated with the YMCA as a participant in the Even Start program. Plaintiff received her first performance appraisal on December 11, 2002. Her supervisor, Lawrence Gutlerner, executive director of the YMCA, reported that she was "fully competent in [her] present job" but noted a need for improvement in the area of "professional relationship with peers." On April 4, 2003, Gutlerner terminated plaintiff's employment "due to a breakdown in communication between" plaintiff, members of her staff, and Even Start's main collaborator, Memorial Day Nursery. According to Gutlerner, plaintiff had engaged in conduct that caused an irreconcilable rift with her staff and staff of Memorial Day Nursery that precluded her from functioning effectively as the director of Even Start.

The precipitating event occurred on March 11, 2003. A three-year-old girl attending Memorial Day Nursery told the teacher's assistant that a boy in her class had touched her. She pointed to her genital area when asked where she had been touched. The assistant informed the teacher and an "incident report" was prepared. According to the teacher's assistant, when she told the girl's mother the following day, the mother said "don't worry." According to the mother, no one told her about the incident until March 19.

It is not clear when plaintiff learned about the touching incident. Although plaintiff's assistant Michael Moro claimed that he overheard a conversation about the incident and told plaintiff about the allegation on March 14, she testified that she was not told until March 20.

On March 20, plaintiff attempted, without success, to contact Georgiana Brown-Jefferson, a "family worker" assigned to Memorial Day Nursery.

On March 21, a Friday, the mother of the girl who alleged she was touched asked plaintiff for advice on how to tell her husband about the incident. Plaintiff told her to obtain a copy of the "incident report." Plaintiff then called the "state monitor" of the Even Start Program, who instructed her to act as an advocate for the girl's family if the parents wanted her help. Later on March 21, the mother informed plaintiff that she had been to Memorial Day Nursery and was told that she and her husband would receive a copy of the report at a meeting scheduled with members of the staff to be held on Monday, March 24.

Plaintiff took immediate action. She went to Memorial Day Nursery with the mother and saw both the assistant director, Edulia Bolanos, and a "family worker," Brown-Jefferson. Plaintiff testified about conversations that were professional but unproductive.

Bolanos and Brown-Jefferson described their separate conversations with plaintiff quite differently. According to Bolanos, plaintiff was clearly upset, angry, aggressive, disrespectful, intimidating and accusatory. After plaintiff left, Bolanos wrote a letter of complaint to Gutlerner in which she noted that plaintiff "was very disrespectful, unprofessional and left no room for constructive discussion." According to Brown-Jefferson, plaintiff barged into a room where she was having a conference with a parent. Brown-Jefferson left the conference to speak to plaintiff in the hallway, where plaintiff angrily demanded the "incident report" in a way that was "intimidating" to Brown-Jefferson. Brown-Jefferson later told both Bolanos and Gutlerner that she did not think she could work with plaintiff again.

When plaintiff returned to her office on March 21, Gutlerner spoke to her about Bolanos's complaint. Plaintiff told Gutlerner that DYFS should be contacted. Because the child was in no danger over the upcoming weekend, Gutlerner suggested plaintiff wait until after the Monday meeting with the girl's parents. Plaintiff left the meeting and attempted to call DYFS, but the office was closed. She reached DYFS on Monday, March 24, 2003.

On Monday March 24, plaintiff and her assistant Moro had a disagreement. Moro submitted a memo detailing his recollection of advising plaintiff about the alleged touching. Moro and plaintiff disagreed about the date. Plaintiff directed Moro to correct his memo to reflect her recollection, but he refused because it was not consistent with the facts as he remembered them. According to Moro, plaintiff cursed at him, made her demand for revision of his memo in an abusive and threatening manner and accused him of lying. Afterward, he told Gutlerner that he "could no longer work with" plaintiff.

Plaintiff and Gutlerner met on March 28, 2003, and discussed Gutlerner's concerns about the viability of the Even Start program. He was worried that the disagreement between plaintiff and staff at Memorial Day Nursery would endanger the program.

On April 3, 2003, Gutlerner held a meeting attended by plaintiff and members of the staff of the YMCA and Memorial Day Nursery. Gutlerner's goal was getting "everybody together" so that they "could talk to each other again." According to Gutlerner, the meeting commenced with a discussion of the good things plaintiff had done for Even Start. When he felt that the participants were "feeling a little comfortable," he moved the discussion to the recent disagreement about reporting the touching incident. According to Gutlerner, the meeting deteriorated to "screaming back and forth between" plaintiff and the director of Memorial Day Nursery. Plaintiff left in the middle of the discussion. After plaintiff left, the Director of Memorial Day Nursery was "emphatic" about ending Memorial Day Nursery's relationship with Even Start or excluding plaintiff from Memorial Day Nursery's building. At that point, Gutlerner saw no option other than termination of plaintiff's employment.

By letter dated April 4, 2003, Gutlerner notified plaintiff that her employment was terminated effective that date. She received two weeks severance pay and two weeks vacation pay.

Based on the foregoing evidence, the jurors concluded that plaintiff was not discharged in retaliation for reporting to DYFS or insisting upon others reporting to DYFS. Specifically, the jury was asked:

Did the defendant retaliate against plaintiff by terminating her because she reported to D.Y.F.S. the incident involving [the three-year-olds], or retaliate against her because she objected to or refused to participate in not notifying D.Y.F.S. about the incident?

The jurors answered "No," and in accordance with their instructions ceased deliberations. They did not reach the remaining questions, which asked them to determine: (1) whether retaliation was a determinative factor in plaintiff's termination; (2) whether plaintiff believed defendant was violating the law; (3) whether plaintiff's belief was objectively reasonable; (4) whether plaintiff was damaged; and (5) the amount of plaintiff's damages.

Plaintiff raises the following issues on appeal:

I. PLAINTIFF SHOULD HAVE BEEN GRANTED A

NEW TRIAL BECAUSE THE JURY CHARGE WAS

LIKELY TO MISLEAD AND PREJUDICE THE

JURY.

II. DUE TO DEFENSE COUNSEL'S IMPROPER

STATEMENTS DURING HIS OPENING AND IN SUMMATION, PLAINTIFF SHOULD HAVE BEEN GRANTED A NEW TRIAL.

III. BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, THE LOWER COURT SHOULD HAVE GRANTED PLAINTIFF'S MOTION FOR A NEW TRIAL.

Judge Humphreys addressed each of the forgoing issues in a written decision dated October 3, 2006. We affirm, substantially for the reasons stated therein as supplemented by the brief comments that follow.

Plaintiff's objections to the jury charge relate to the court's instructions about the need for plaintiff to establish that she reasonably believed that Even Start and Memorial Day Nursery's failure to report was a violation of the law or regulation. N.J.S.A. 34:19-3a(1). In this case, error relevant to the reasonableness of plaintiff's belief in the illegality of defendant's conduct could not have led to an unjust verdict. See R. 2:10-2. Because the jurors concluded that plaintiff was not discharged in retaliation for reporting or objecting to a failure to report the touching incident, they were not required to consider whether plaintiff's belief was reasonable.

Moreover, the charge was proper. There is nothing that would lead the jurors to conclude that plaintiff was required to prove she acted in response to "actual violations" of the law. The instruction unmistakably stated that plaintiff was required to establish only her reasonable belief that the law required defendant to file a report. The court instructed the jury to evaluate the reasonableness of plaintiff's belief in light of her circumstances, education and knowledge. And, it was proper for the court to advise the jurors that the law defines child abuse to include "permitting or allowing any other person to perform any indecent, immoral or unlawful act in the presence of a child that may tend to debauch or endanger the morals of such child." N.J.S.A. 9:6-1f. See Dzwonar v. McDevitt, 177 N.J. 451, 463-64 (2003).

There is clearly no apparent miscarriage of justice that would permit us to disturb Judge Humphreys' determination that this verdict is not against the weight of the evidence.

R. 2:10-1. The central issue was whether plaintiff was discharged for urging reporting or for the unprofessional manner in which she urged others to report. As the judge explained:

 
Plaintiff did not have a strong case. The testimony of the executive director [Gutlerner] was persuasive; the plaintiff's testimony was not. The jury could readily find, as it did, that the defendant did not retaliate against the plaintiff, but rather that her discharge was warranted by her unprofessional and abusive conduct. The verdict was plainly not a clear error or mistake, nor was it a miscarriage of justice or against the weight of the evidence.

Affirmed.

(continued)

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A-2839-06T2

December 19, 2007