LINDA CISCO HUNTER v. ROWAN UNIVERSITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1837-09T2

LINDA CISCO HUNTER,

Plaintiff-Appellant,

v.

ROWAN UNIVERSITY and DEAN

DIANNE DORLAND,

Defendants-Respondents.

________________________________________________________________

December 16, 2010

 

Submitted November 29, 2010 - Decided

 

Before Judges Lisa, Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-701-07.

 

Dennis K. Kuroishi, attorney for appellant (Susan E. Babb, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jacqueline Augustine, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, Linda Cisco Hunter, appeals from the trial court orders of June 2, 2009 and November 9, 2009, which, in combination, granted summary judgment to defendants dismissing all counts of plaintiff's complaint. Plaintiff had asserted causes of action against her former employer, Rowan University, and Dean Dianne Dorland, her supervisor. Some of the claims were voluntarily dismissed and are not involved in this appeal. With respect to the claims germane to this appeal, the Law Division order of June 2, 2009 granted defendants summary judgment on plaintiff's claim of national origin discrimination for failure to establish a prima facie case; granted summary judgment for defendants on plaintiff's civil rights claim for failure to file the claim within the statute of limitations; and denied summary judgment to defendants on plaintiff's retaliation claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Defendants moved for reconsideration with respect to the retaliation claim. A different judge heard the motion and granted it, dismissing that claim by order of November 9, 2009.

On appeal, plaintiff contends (1) defendants' motion for reconsideration did not comply with the court rules, (2) the court disregarded the law of the case doctrine when it granted reconsideration and dismissed plaintiff's retaliation claim, (3) the statute of limitations did not bar plaintiff's civil rights claim, (4) the court abused its discretion in granting summary judgment prior to the close of discovery, and (5) the court erred by granting summary judgment on plaintiff's retaliation claim because plaintiff set forth a prima facie case, and provided sufficient evidence of a causal connection to survive summary judgment. We reject these arguments and affirm.

I

Plaintiff is a Caucasian, non-Hispanic woman, who was born in 1947. She began working at Rowan in 1994. In 1995, she became "Administrative Assistant I" to the Dean of the College of Engineering, James Tracey. When Tracey retired, he was replaced by Dorland in 2000. At that time, plaintiff was midway through a three-year employment contract scheduled to end on June 30, 2002.

Dorland restructured her department. Included was the creation of an engineering outreach office, to which she assigned plaintiff in August 2000 as the engineering outreach assistant. Plaintiff maintained the same job title and salary. However, she was relocated away from her former office and her duties and function changed. She was no longer listed in the directory, she did not have a job description, she no longer had business cards, and she was segregated from workers she previously supervised.

Soon after plaintiff was assigned to the outreach office, the director of that office, Melanie Basantis, went out on maternity leave. While Basantis was on leave, Dr. Steven Chin, Associate Dean of Engineering, was assigned greater responsibility in the outreach department. Chin had direct supervisory responsibility over plaintiff, while Dorland maintained overall supervision of plaintiff, specifically with regard to evaluations.

On January 31, 2001, Chin and Dorland met with plaintiff to discuss concerns she had expressed regarding her new assignment. At the meeting plaintiff said she was uncomfortable with how her transition was handled and disappointed with not being recognized for completed projects. After the meeting, plaintiff sent a memorandum to Dorland confirming these feelings.

Dorland responded on February 5, 2001, stating that the meeting had been convened at Dorland's request for Chin to provide an assessment of the outreach office and its staff due to Basantis' return from maternity leave. According to Dorland, plaintiff aggressively pursued her own agenda at the meeting, resisted Chin's efforts to bring focus back to the meeting, and prevented Chin from accomplishing his planned agenda.

The following day, February 6, 2001, Chin rendered his first evaluation of plaintiff. He found plaintiff's work unsatisfactory and noted a few specific examples of inadequate effort. Subsequently, Nicholas DiObilda, the American Federation of Teachers (AFT) Grievance Chairman, wrote to Robert Zazzali, the Associate Provost for Faculty Affairs, expressing plaintiff's concerns about her job status and unfavorable review. He requested a meeting, which was held on March 5, 2001 and attended by plaintiff, Zazzali, DiObilda, Dorland, and Chin. After the meeting, plaintiff was provided a more specific description of her duties as the engineering outreach assistant.

Chin rendered a second evaluation of plaintiff on April 22, 2001. He noted that improvement was necessary regarding plaintiff's computer proficiency and follow-through on her coordination of tasks. He saw improvement in the latter category, and expressed his expectation that it would continue. On April 25, 2001, Basantis provided a positive review of plaintiff, stating that she was "capable" and "extremely reliable and dependable."

Dorland issued her own evaluation of plaintiff to Donald Farish, President of Rowan University, on April 30, 2001. This evaluation was done as part of the re-contracting process. Dorland noted she had indicated concerns with plaintiff's performance over the past year and recommended against re-contracting. However, Dorland expressed the desire to defer her final evaluation until December 2001 to ensure that the evaluation process was thorough and complete.

On September 24, 2001, Chin provided an update on his evaluation of plaintiff's job performance. He stated that plaintiff's work showed a "pattern of deficiencies" that included "lack of timeliness on project completion, lack of follow-through and coordination on taking tasks to completion, and a lack of proficiency in the Microsoft Office Suite." Chin provided examples of deficient work which he viewed as "serious problems." Chin expressed the view that the evidence suggested plaintiff's performance would not improve and that it was unsatisfactory.

On October 17, 2001, Mel Moyer, the Grievance Chair for AFT, filed a written grievance with Farish alleging violations of Rowan's agreement with the union and requesting a formal hearing. Moyer alleged inequitable treatment, interference and intimidation, creating a hostile work environment. He also alleged that Dorland's April 30, 2001 decision against re-contracting was made without good cause and constituted inequitable application of reappointment procedures.

On November 27, 2001, Chin issued yet another update to Dorland. He expressed his continuing concerns with plaintiff's deficiencies. He found no improvement in her work. On December 6, 2001, Dorland recommended against re-contracting plaintiff in a letter addressed to the Provost, Helen Giles-Gee. Farish accepted the recommendation of Dorland and Giles-Gee, and decided not to present plaintiff to the Board of Trustees for contract reconsideration. Farish informed plaintiff of the decision on March 11, 2002.

As a result of plaintiff's October 17, 2001 grievance, a settlement agreement was reached on April 25, 2002. In return for the union's withdrawal of the grievance, plaintiff was issued a one-year terminal appointment as an administrative assistant from July 1, 2002 to June 30, 2003. Plaintiff was assigned to a position outside the College of Engineering which was consistent with her generic job description. Plaintiff worked that year as the administrative assistant to Dean Gephardt of the College of Fine Arts. At the expiration of that term, plaintiff was unable to secure employment with Rowan University. Thus, her employment with Rowan ended.

II

On March 31, 2004, plaintiff filed a complaint in the United States District Court for the District of New Jersey. She alleged discrimination based on her race, age and national origin, in violation of federal and state law, violation of her civil rights under 42 U.S.C.A. 1983, conspiracy, and retaliation. On March 30, 2007, the District Court granted defendants' motion for summary judgment on all claims except for two claims brought under the LAD: (1) national origin discrimination, and (2) retaliation. The court did not enter judgment on the merits of these claims, declining to exercise subject matter jurisdiction over supplemental state claims after dismissing all claims over which it had original jurisdiction. Plaintiff appealed to the United State Court of Appeals for the Third Circuit, which affirmed the District Court on November 12, 2008. Hunter v. Rowan Univ., 299 F. App'x 190 (3rd Cir. 2008) (unpublished decision).

On April 30, 2007, plaintiff filed a similar complaint in Superior Court, adding an allegation of violation of her civil rights under state law. On October 12, 2007, plaintiff served interrogatories and a request for production of documents on defendants. The discovery requests went unanswered, and, over plaintiff's objection, the trial court granted defendants' motion of December 18, 2007 to stay the state court action (including discovery) pending disposition of the federal appeal.

On March 30, 2009, about four-and-one-half months after the federal appeal was decided, defendants moved for summary judgment. With respect to those claims that plaintiff continued to pursue, the court granted summary judgment on the national origin discrimination claim. The court also granted summary judgment on the civil rights claim, finding that it was not filed within the two-year statute of limitations. Finally, the court denied summary judgment on plaintiff's retaliation claim under the LAD. The court stated with regard to that claim that "[i]t is not disputed that complaining about differential treatment is a protected activity." The court therefore concluded that the retaliation claim required determination by the jury.

On June 22, 2009, defendants moved for reconsideration on the retaliation claim. They argued that the court had overlooked the applicable law regarding what constitutes protected activity under the LAD. Due to a conflict of interest that arose with respect to the judge that heard the initial summary judgment motion, a different judge heard the reconsideration motion. The court granted the motion and dismissed plaintiff's claim for retaliation under the LAD. The court reasoned that "[p]laintiff did not implicitly or explicitly state when she made her work-related complaints that she believed she was a target of discrimination. Plaintiff's general complaints about mistreatment and ostracization are not protected activity because the plaintiff never expressed her mistreatment in terms of discrimination."

This appeal followed.

 

III

Plaintiff's first two arguments, that the reconsideration motion did not comply with the court rules and that the granting of the reconsideration motion violated the law of the case doctrine, can be disposed of quite summarily. The motion complied with the requirements of Rule 4:49-2, by setting forth "the matters or controlling decisions which counsel believes the court has overlooked or as to which it had erred." In a nutshell, defendants argued that the first judge overlooked the precedents holding that generalized complaints without reference to membership in a protected class do not constitute protected activity under the LAD, or, alternatively, that the judge misapplied those principles.

Reconsideration is a matter within the sound discretion of the court, to be exercised in the interest of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). In ruling upon the reconsideration motion, the court complied with the principles expressed in those cases. There was no violation of the applicable court rule or interpretative case law.

The denial of summary judgment on plaintiff's retaliation claim under the LAD was, of course, an interlocutory order. Such orders are always subject to modification at any time before entry of final judgment. Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998). Courts possess the inherent power to modify their interlocutory orders. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 261 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988).

Under the law of the case doctrine, prior decisions on identical legal issues in the same case should be followed unless the prior decision was clearly erroneous. Franklin Med. Associates v. Newark Pub. Sch., 362 N.J. Super. 494, 512 (App. Div. 2003). However, unlike res judicata, the law of the case doctrine operates as a discretionary rule of practice, not a rule of law. Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 494 (App. Div.), certif. denied, 162 N.J. 131 (1999). We have no hesitancy in concluding that the court acted within its discretion in reconsidering the earlier ruling and that, in doing so, the court did not misapply the law of the case doctrine.

IV

We next address the statute of limitations issue with respect to count V, plaintiff's civil rights claim. The state court action was filed on April 30, 2007. Plaintiff does not dispute that the applicable limitations period for such a claim is two years from date of accrual. Plaintiff argues that the court erred by characterizing her civil rights claim in state court as a "new claim[]," and also erred in setting January 31, 2001 as the date of accrual.

Plaintiff insists that by filing her federal complaint within one year after the date of her termination, she did not violate the statute of limitations. Count X of her federal complaint alleged retaliation in violation of federal and New Jersey state law. Plaintiff argues that the District Court's "sua sponte characterization" of the claims as "NJLAD" claims does not foreclose her assertion of all state law claims within the scope of the original federal complaint. Plaintiff further argues that January 31, 2001 was not the date of accrual of the cause of action. She contends the retaliation continued until her final termination, which should be deemed the accrual date.

In the procedural context of this case, our analysis of the statute of limitations issue begins with some basic principles. It is fundamental that a pleading must fairly apprise the adverse party of the claims and issues raised. Spring Motors Distributors, Inc. v. Ford Motor Co., 191 N.J. Super. 22, 29-30 (App. Div. 1983), rev'd on other grounds, 98 N.J. 555 (1985). Where the adequacy of a pleading is challenged, all facts, reasonable inferences and implications are to be considered most strongly in favor of the pleader. Ibid. Still, a pleading must allege sufficient facts to give rise to a cause of action; mere conclusions and an intention to rely on discovery are inadequate. Glass v. Suburban Restoration Co., 317 N.J. Super. 574, 582 (App. Div. 1998). According to the continuing violation theory, where alleged tortious conduct constitutes a continuous and cumulative pattern, the action accrues on the date when the wrongful action ceases. Roa v. LAFE, 200 N.J. 555, 566 (2010).

We are unpersuaded by plaintiff's contention that the retaliation claim in her federal complaint adequately apprised defendants of a civil rights claim. On March 23, 2004, the date of the federal complaint, the New Jersey Civil Rights Act was not in effect. See L. 2004, c. 143 (effective September 10, 2004). Nothing in the statute's legislative history indicates that the statute was intended to apply retroactively. Estate of Oliva v. New Jersey, 579 F. Supp. 2d 643, 684 n.87 (D.N.J. 2008), aff'd, 604 F.3d 788 (3d Cir. 2010).

This does not mean that civil rights were not protected under the New Jersey Constitution prior to the enactment of the New Jersey Civil Rights Act. In Peper v. Princeton University Board of Trustees, 77 N.J. 55, 77 (1978), the Court noted its "power to enforce rights recognized by the New Jersey Constitution, even in the absence of implementing legislation." Plaintiff argues that her civil rights claim is based on the implicit Equal Protection Clause of the New Jersey Constitution (N.J. Const. art. I, 1), or, alternatively, under the protections for free speech and the redress of grievances (N.J. Const. art. I, 6, 18). However, nowhere in the federal complaint, under Count X, did plaintiff allege a violation under those provisions specifically, or under the New Jersey Constitution in general. Additionally, plaintiff made a claim in her federal complaint under 42 U.S.C.A. 1983 to enforce civil rights under federal law, but failed to state a parallel claim under New Jersey law either in that count, or immediately thereafter, or anywhere else in that complaint. Reading the federal complaint as a whole, plaintiff failed to apprise defendants of a civil rights claim under New Jersey law.

As we stated, plaintiff asserts the District Court improperly made a "sua sponte characterization" of her retaliation claims as "NJLAD" claims. On the contrary, this only reinforces the conclusion that Count X did not adequately apprise defendants or the federal court of a civil rights claim under state law. The fact that plaintiff inserted an additional, separate count in her state complaint lends additional support to this conclusion. If the retaliation claim in the federal complaint implicitly included the constitutional civil rights argument, it would have been unnecessary to allege a civil rights claim separately in the state complaint. Considering all of these circumstances, we are satisfied that plaintiff did not assert a civil rights cause of action under state law in Count X or otherwise in her federal complaint.

Accordingly, plaintiff had two years from the date the action accrued to otherwise raise the claim. Giving plaintiff the benefit of the latest plausible triggering event to establish accrual of this claim, i.e. her termination date of June 30, 2003, her April 30, 2007 complaint was untimely as to this claim. The trial court did not err in dismissing this claim as time-barred.

V

Plaintiff argues that summary judgment was improperly granted because discovery was not complete. Defendants contend that extensive discovery was completed in the federal action with respect to all claims in that suit, including the state law claims that were properly alleged and were viable in the state court action. Defendants argue that plaintiff asserted retaliation and national origin claims in the federal action and obtained full discovery on those claims. Further, defendants point out that plaintiff did not file a motion to compel discovery in the state court action prior to defendants filing their summary judgment motion. We agree with defendants.

The disposition of discovery issues is left to the sound discretion of the trial court. Medford v. Duggan, 323 N.J. Super. 127, 133 (App. Div. 1999). Its determination of discovery issues is entitled to deference in the absence of a mistaken exercise of discretion. Ibid. (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)).

Generally, summary judgment is inappropriate prior to the completion of the discovery process. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988); Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003). However, a plaintiff is obligated to "'demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action.'" Wellington, supra, 359 N.J. Super. at 496 (quoting Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977)).

In her federal complaint, plaintiff asserted national origin discrimination and retaliation claims which were virtually identical to the same claims in her state court complaint. The federal action proceeded through discovery and was disposed of by summary judgment. Plaintiff does not allege that summary judgment was improperly heard prior to the close of discovery in the federal action. Plaintiff subsequently brought the same claims of national origin discrimination and retaliation in her state complaint, and propounded additional discovery upon defendant. Plaintiff, in her brief, has not set out what in particular she hoped to discover through the additional discovery.

We find no mistaken exercise of discretion in granting summary judgment under these circumstances, notwithstanding the fact that discovery requests were still outstanding.

VI

Plaintiff's remaining argument is that the trial court erred in granting summary judgment on her retaliation claim because (1) she established a prima facie case of retaliation under the LAD; and (2) she provided sufficient evidence of causation to survive summary judgment. Plaintiff argues that she "complained, and the only response was systematic exclusion and retaliation directly related to [her] efforts to remedy what she justifiably perceived as inequitable treatment and a hostile work environment." She claims that the exercise of her "right to complain about disparate treatment" resulted in retaliation. Plaintiff also argues the overall chronology of events subsequent to the January 31, 2001 meeting created a sufficient causal nexus between her complaints and defendants' ultimate decision against re-contracting with her.

Summary judgment must be granted if there is no genuine issue as to any material fact challenged and the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2. The court reviews evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). A reviewing court applies the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

In enacting the LAD, the Legislature found and declared that

practices of discrimination against any of its inhabitants, because of race, creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, or nationality, are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.

 

[N.J.S.A. 10:5-3.]

Accordingly, the Legislature declared its opposition to such practices in order to protect and ensure the economic prosperity and general welfare of its inhabitants. N.J.S.A. 10:5-3. Under the LAD, it is an unlawful employment practice or discrimination

[f]or any person to take 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, testified, or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by this act.

 

[N.J.S.A. 10:5-12d.]

To establish a prima facie case of retaliation under the LAD, a plaintiff must show that (1) she was engaged in a protected activity known to the employer; (2) she was thereafter subjected to an adverse employment decision; and (3) there was a causal link between the two. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995). We agree with the determination of the trial court on defendants' reconsideration motion that plaintiff did not make a prima facie showing as to the first prong.

Distinctly lacking from plaintiff's case is any allegation of retaliation based upon opposition to any practice which is forbidden by the LAD. Plaintiff never implicitly or explicitly made complaints to her superiors or co-workers alleging discrimination based upon age, race, national origin, gender or any other class protected by the LAD. In her January 31, 2001 letter to Dorland, plaintiff complained about a number of things, but she framed none of her complaints as arising from discrimination. For example, plaintiff was "uncomfortable" with her transition; she did not feel like "a member of the team;" her request for business cards was denied; she did not receive "recognition for completed projects;" there were a number of issues stemming from her relationship with Chin.

The same is true of Grievance Chairman DiObilda's February 19, 2001 letter. He noted the "tension-filled and uncomfortable work environment" between plaintiff and her supervisors. He further noted the absence of a job description and disruption in office supervision, but nothing regarding discrimination. Likewise, the October 17, 2001 union grievance filed by Moyer provided no cognizable complaint sounding in discrimination. Although Moyer alleged "inequitable treatment, interference and intimidation" which created a "hostile environment," all of Moyer's claims sounded in violations of the "master agreement." There was no mention of discrimination based on membership in a protected class.1

Plaintiff's deposition testimony is illuminating. It demonstrates that plaintiff did not believe she was being discriminated against based upon any classification protected by the LAD:

Q. So do you believe you were being retaliated against?

 

A. Retaliation? Well, for some reason I was being mistreated while no one else was and I couldn't imagine why. No one ever explained why. And I asked pointed questions that were never answered and I think in asking those questions the treat my treatment here just began to get worse and worse.

 

Q. And what were those questions? I mean, do you think that do you think that you were you were you were treated worse after having asked those questions?

 

A. Oh, absolutely.

 

Q. Okay. What were the questions?

 

A. What is my job description? Why was I placed in another area away from everyone else? Why was I moved to Outreach without any agenda, any plan? Why was I made to cover for Melanie Basantis when she was on maternity leave as and I did the work of everyone in Outreach, and upon her return, I was told that my work wasn't satisfactory.

 

In her own words, plaintiff stated that the retaliation was in response to her complaints about her revised working conditions. She did not state, or even suggest, that the retaliation was based on race, gender, age, national origin, or any other class protected by the LAD.

Plaintiff generally alleges that she suffered inequitable treatment and a hostile work environment. During the period of the alleged retaliatory conduct, she contends that she complained orally and in writing about "harassment, ostracization, disparate treatment, and a hostile environment." Even if plaintiff's superiors retaliated against her for voicing her concerns personally and through her union representatives, that response is not evidence that plaintiff's generalized complaints constituted protected activity under the LAD.

Because plaintiff failed to make a prima facie showing of engaging in protected activity, it is unnecessary to determine whether plaintiff can survive summary judgment based on the evidence purportedly showing a causal connection between engaging in a protected activity known to the employer and an adverse employment decision.

Affirmed.

1 We are mindful that Moyer referenced Article II of the agreement between the AFT and Rowan University, among other provisions. Article II is a non-discrimination clause which provides, "there shall be no intimidation, interference, or discrimination because of age, sex, sexual orientation, marital status, race, color, creed, national origin, physical handicap, or political activity, private conduct or union activity which is permissible under law and which does not interfere with an employee's employment obligation." These categories are not coextensive with those in the LAD. More importantly, nothing in Moyer's grievance provided any indication as to what form of discrimination he alleged on plaintiff's behalf. The mere generalized allegation made in the grievance did not adequately create an inference of protected activity.