TONIANN BUSH v. NEW JERSEY TRANSIT CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0101-09T2

TONIANN BUSH and JOHN BUSH,

Plaintiffs-Appellants,

v.

NEW JERSEY TRANSIT CORPORATION,

NEW JERSEY TRANSIT RAIL OPERATIONS,

and FRANK A. FITTIPOLDI,

Defendants-Respondents.

______________________________________

January 20, 2011

Submitted October 26, 2010 - Decided

Before Judges Wefing, Payne and Baxter.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-3085-06.

Richard S. Mazawey, attorney for appellants.

Paula T. Dow, Attorney General, attorney for

respondents (Lewis A. Scheindlin, Assistant

Attorney General, of counsel; Robert P. Preuss,

Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff appeals from a trial court order granting defendants' motion for summary judgment and dismissing her complaint with prejudice.1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff ToniAnn Bush worked for defendant New Jersey Transit Corporation (Transit) from 1987 until 2004. Her initial position was as an assistant organizational services specialist, and she worked her way up to become a Manager of Facility Services. In this position, she was responsible for two Transit locations, the Maplewood General Office Building and the Orange Annex. Her supervisor was defendant Frank Fittipoldi.

The record is not entirely clear as to when Fittipoldi became her supervisor, but in 2006 she filed a multi-count complaint alleging, inter alia, hostile work environment, constructive discharge, and retaliation. After engaging in discovery, defendants moved for summary judgment, arguing that her complaint was barred by the statute of limitations. The trial court agreed and granted defendants' motion.

Plaintiff argues on appeal that the trial court erred in not applying the discovery rule for purposes of the statute of limitations, Lopez v. Swyer, 62 N.J. 267 (1973); that the trial court further erred in concluding that she had not suffered any adverse job action; and finally, that defendants' motion was premature because she had not yet had the opportunity to complete the deposition of defendant Fittipoldi. For the following reasons, we are satisfied that the trial court's conclusion was entirely correct and should be affirmed.

Plaintiff traced her problems with Fittipoldi at least back to 1992, when she reported to him that a particular vendor was being difficult in negotiations. He responded, "What does he expect you to do? Get on your knees and blow him?" She was understandably taken aback by such a crude and inappropriate remark. While the record makes clear that Fittipoldi's language was often crude and unprofessional, it also makes clear that he did not select women as the target of such language but, rather, used it generally.

Plaintiff recited a number of instances in which she contended that Fittipoldi denigrated her and did not treat her with the respect her position called for. She also asserted that he did not support her managerial position, undercutting her ability to supervise those under her. Her complaints included the following incidents.

In 1994, plaintiff recommended that a problem employee of hers be terminated, but, instead, Fittipoldi transferred him to another unit. The employee had served as a foreman, but Fittipoldi never filled that foreman position after the transfer. As a result, plaintiff had an increased workload.

On February 14, 1996, plaintiff sent a memo to Fittipoldi, letting him know that she was unhappy with his arrogance, sarcasm, and vulgarity. Therein, she cited instances where Fittipoldi had given her orders that made it appear as if she were not doing her job properly, disregarded her authority, and denied her funding or staffing that her equal, Sue Whittington, received.

In March 1996, Fittipoldi directed plaintiff to resign from her position as a volunteer member of the Transit Emergency Response Team, after she had responded to a call during a snowstorm instead of coming to the office that day. Plaintiff felt that Fittipoldi was not treating her the same as Whittington, who he would allow to call in sick during inclement weather.

In April 1996, plaintiff discussed Fittipoldi's treatment of her with his superior, Frank J. Hopper. Hopper then met with plaintiff and Fittipoldi, advising them to "play nice."

On April 12, 1996, Fittipoldi eliminated the positions of two of plaintiff's twenty-two staff members. When plaintiff asked why, Fittipoldi said: "stop your whining."

On April 17, 1996, plaintiff sent another memo to Fittipoldi stating that his treatment of her had not improved since their meeting with Hopper and that plaintiff had a lower salary than her peers, despite the excellent performance reviews she had received. Fittipoldi responded that it was "not worth it" to give someone else less of a raise in order to give plaintiff more.

In April 2001, Fittipoldi told plaintiff he would not be giving her an outstanding performance rating because he had already given one to another manager, and Hopper did not like to see too many outstanding ratings cross his desk.

In June 2001, plaintiff wanted to charge a union employee, Mike Barbaro, for discarding two antique bookcases without her authorization, but since Fittipoldi and Barbaro were friends, he dismissed the charge and ordered plaintiff not to proceed with any disciplinary action.

Between October 2001 and January 2002, plaintiff was out of the office for foot surgery. When she returned, she discovered an abnormally large amount of expenses had been incurred. When she brought this to Fittipoldi's attention, he responded: "Back two days and already starting trouble."

In April 2002, plaintiff evacuated the Maplewood building after a fire alarm went off. Fittipoldi told plaintiff that she should have had the employees re-enter the building before the fire department gave the go-ahead, stating: "The Maplewood Fire Department doesn t run the f***in' building, you do."

On April 17, 2002, plaintiff scheduled a meeting with the local transit union president and Fittipoldi. When Fittipoldi arrived, he dismissed plaintiff from the meeting, saying he would contact her if he needed her. Plaintiff felt that this was "demeaning."

From May 14, 2002, through May 17, 2002, plaintiff called in sick, leaving a voicemail each morning for Fittipoldi and Barbaro. On May 22, 2002, Fittipoldi accused plaintiff of missing work for a week without consulting him and said he thought she called at 6:00 A.M. to avoid speaking with him directly. When plaintiff asked whether other employees were so closely scrutinized, Fittipoldi responded: "Go f*** yourself." Plaintiff immediately reported the incident to Hopper and contacted the Employee Assistance Program ("EAP").

Toward the end of May 2002, plaintiff met with her physician, who told her that her blood pressure was elevated; he prescribed Xanax for her and instructed her to remain out of work for a week. When she returned to work, she met with Hopper, the EAP counselor and an EEO representative, and she understood from that meeting that an investigation was to take place and that during that investigation, she would not have to report to Fittipoldi. She was distressed to learn, however, that she was to remain under his supervision while the investigation was in progress. Hopper told her to put the issues behind her for the moment, but she insisted she could not do that. He thus told her she would have a "mobility assignment" during the investigation, and she was transferred to the Electronic Revenue Department, an area about which she knew nothing. When she arrived at that location, she found she had no computer, no phone, no lights, and nothing to do. She continued to be paid at the same rate, however. She became upset at these developments, and with the initial concurrence of Transit's medical department, was out of work for three months on workers' compensation.

Transit completed its investigation by the end of June 2002. While it found that Fittipoldi had not violated Transit's policies on equal opportunity and sexual harassment, it also concluded that he had "an intense, extremely dictatorial management style [and that h]is business dealings with people . . . are perceived as abusive, arrogant, [and] sarcastic." The report recommended that he receive mandatory leadership and interpersonal relations training.

On July 10, 2002, plaintiff wrote to Transit executive George Warrington, detailing her complaints with respect to her treatment at the hands of Fittipoldi over the past ten years. Within that letter she noted how his behavior toward her had physically affected her, causing anxiety and high blood pressure. On July 16, 2002, she was examined by a physician on behalf of Transit to determine if her complaints were work-related. That physician concluded that plaintiff was suffering from "chronic adjustment disorder with mixed anxiety and depressed mood." The physician stated that plaintiff's "condition appears to have arisen out of, and during the course of, her employment, and it appears that working conditions were objectively stressful and not merely stressful in the mind of the claimant."

In August 2002, plaintiff began a course of treatment with a clinical psychologist. The psychologist's notes from each visit noted her continuing insomnia, stress and nightmares flowing from her treatment by Fittipoldi.

In September 2002, Hopper told plaintiff she could return to her managerial position and would report to Sue Whittington, not Fittipoldi. When she returned on September 23, 2002, she found that her office had been rearranged and that certain files and personal items were missing. In her deposition, plaintiff testified that Whittington told her that Fittipoldi, in her absence, had directed that some things be thrown away. The following day, Fittipoldi told her to attend a meeting on security. She objected to this and did not attend. She complained to Hopper, who indicated it was unrealistic to think that she would not have any contact at all with Fittipoldi. Faced with this, she applied for a new position in another department when it became available.

In November, she started in the Department of Labor Relations as a Labor Relations Specialist. Although the new position was not at the same level as her earlier one, she suffered no diminution in salary. Plaintiff agreed that by the end of 2002, she no longer considered her work environment to be hostile.

In early 2004, plaintiff began to feel physically ill, with increasing pain in her joints. After April 19, 2004, she was no longer physically able to go to work, and she was thereafter terminated. In May 2004, she was hospitalized and diagnosed with fibromyalgia, in addition to her long-standing condition of rheumatoid arthritis. She is no longer able to work and now receives Social Security disability benefits.

Plaintiff filed her initial complaint in April 2006. In preparation for this litigation, she was examined by a psychiatrist in December 2005. In his report, the doctor diagnosed plaintiff with a "specific phobia to managerial positions" due to her loss of self-confidence from her treatment by Fittipoldi as well as "major depressive disorder in partial remission." He said these conditions became apparent to her when she lost her employment with Transit.

We note first the standard governing our review of a trial court's grant of summary judgment. When reviewing such a grant, the Appellate Division employs the same standard as the trial judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (citations omitted). First, we must decide whether there was a genuine issue of material fact. If there was not, then we must decide whether the trial judge correctly applied the law. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006) (citations omitted). The motion judge's conclusion on an issue of law is accorded no deference and is reviewed de novo. Id. at 231 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007) (citing Manalapan Realty, supra, 140 N.J. at 378).

Although a claim presented under New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10-5:1 to -49, must generally be presented within two years of the discriminatory act, Montells v. Haynes, 133 N.J. 282 (1993), a plaintiff may, in certain contexts, be permitted an enlarged period of time within which to present a claim. The continuing violation doctrine is such a vehicle. If a plaintiff can show a pattern of continuing harassment, the LAD claim will not accrue until "the date of the last act in the pattern or series of acts that comprise the continuing violation claim." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 21-22 (2002). If the continuing violation doctrine is applicable, then in that instance, a plaintiff may include within his or her claim component acts that comprise the hostile work environment even if they fall beyond the limitations period.

In general, a three-part test applies to determine whether a plaintiff has established that discrete discriminatory acts add up to a continuing violation:

The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuous violation? The second is frequency. Are the alleged acts recurring . . . or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?

[Hall v. St. Joseph's Hosp., 343 N.J. Super. 88, 102 (App. Div. 2001), certif. denied, 171 N.J. 336 (2002) (quoting Berry v. Bd. of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983)).]

The continuing violation doctrine, however, cannot salvage an untimely claim with respect to a discrete discriminatory act. Justice Long explained the distinction in Roa v. Roa, 200 N.J. 555, 569 (2010):

[T]he continuing violation theory was developed to allow for the aggregation of acts, each of which, in itself, might not have alerted the employee of the existence of a claim, but which together show a pattern of discrimination. In those circumstances, the last act is said to sweep in otherwise untimely prior non-discrete acts.

What the doctrine does not permit is the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable.

Here, the continuing violation doctrine is applicable; plaintiff is alleging a hostile work environment created over a ten-year period of recurring derogatory remarks and conduct. The continuing violation doctrine by itself, however, is insufficient to save plaintiff's complaint. Under that doctrine, plaintiff's cause of action accrued at the date of the last hostile act. Shepherd, supra, 179 N.J. at 21-22. Plaintiff's own testimony, however, places that at the end of 2002 while her complaint was not filed until April of 2006. Although plaintiff asserts to the contrary, our review of the record does not reveal the presence of any hostile acts past the conclusion of 2002.

The discovery rule is another vehicle to avoid the consequences of the limitations period. The discovery rule is intended

to avoid harsh results that otherwise would flow from mechanical application of a statute of limitations. Accordingly, the doctrine postpones the accrual of a cause of action so long as a party reasonably is unaware either that he has been injured, or that the injury is due to the fault or neglect of an identifiable individual or entity.

[Roa, supra, 200 N.J. at 571 (citations omitted).]

Stated another way, a cause of action will not accrue "until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez, supra, 62 N.J. at 272. Accrual begins once a plaintiff learns, or reasonably should learn, the existence of the material facts that may give rise to a cause of action. See Burd v. New Jersey Tel. Co., 76 N.J. 284, 291-92 (1978). "At the heart of the discovery rule is the "fundamental unfairness of barring claims of which a party is unaware." Roa, supra, 200 N.J. at 571 (citation omitted).

Plaintiff contends that the discovery rule applies in her case because she did not discover that defendants' conduct had caused her actual injury until around April 19, 2004 her last date of employment. In support, plaintiff cites Dr. Crain's report, which conclusorily states that her depressive disorder and phobia to managerial positions "became apparent to her in April, 2004, when she was terminated from her employment."

Here, however, the record demonstrates that plaintiff either knew or should have known that Fittipoldi's conduct had caused her actual harm well before April 2004. As we noted earlier, plaintiff wrote to George Warrington in July 2002 complaining that her health was being affected by the hostile work environment created by Fittipoldi. Her medical records from July 2002 through October 2002 detail her physical complaints and attribute them to her work environment. The diagnosis she received in December 2005 is insufficient to preserve her LAD claims. That her symptoms may have worsened from 2002 through 2005 is not a basis to permit her to revive her claims. Grunwald v. Bronkesh, 131 N.J. 483, 495 (1993) (noting "It is not necessary that all or even the greater part of the damages have to occur before the cause of action arises.") (citations omitted).

Plaintiff was aware of all of the material facts upon which her claim was based in 2002, before the statute of limitations expired. Her complaint filed in April 2006 was untimely, and the trial court properly ruled in defendants' favor on that question.

The trial court, in ruling on defendants' motion, gave a comprehensive oral opinion. During the course of that opinion, it noted that plaintiff's transfer to the Department of Labor did not constitute an adverse employment action. Plaintiff urges on appeal that the trial court erred in this regard. In light of our conclusion that the trial court was correct in its determination that plaintiff's complaint was time-barred, it is not necessary to address that issue in depth. We note merely that we concur in the analysis of Judge Cifelli in his oral opinion of July 24, 2009.

Plaintiff also argues that defendants' motion was premature in light of the fact that she had not completed the deposition of Fittipoldi. "Generally, summary judgment is inappropriate prior to the completion of discovery." Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003) (citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988)). "Where discovery on material issues is not complete, the respondent must, therefore, be given the opportunity to take discovery before disposition of the motion." Pressler, Current N.J. Court Rules, comment 2.3.3 to R. 4:46-2 (2010). However, a plaintiff "has an obligation 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)). Accordingly, there is no need to complete further discovery "if it will patently not change the outcome." Minoia v. Kushner, 365 N.J. Super. 304, 307 (App. Div.), certif. denied, 180 N.J. 354 (2004) (citations omitted).

Here, further contact between plaintiff and Fittipoldi after her transfer is a material issue since, if proven, it could change the accrual date for plaintiff's hostile work environment claim and possibly preclude summary judgment on statute of limitations grounds. However, as the trial judge noted, it is highly unlikely that completing Fittipoldi's deposition would reveal that he had further harassing contact with plaintiff plaintiff herself denied in her deposition having any further contact or problems with him after 2002, and if that information were going to be forthcoming, it would have come from plaintiff.

In light of our earlier analyses and conclusions, we deem plaintiff's final point, that the trial court should have held a Lopez hearing before ruling on the timeliness of her complaint to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The question presented to the trial court did not relate to credibility but, rather, to the legal sufficiency of the evidence presented.

Finally, we note that within her complaint, plaintiff also included certain tort and contract claims that the trial court also dismissed. We concur with defendants that plaintiff, not having briefed those issues, has waived them on appeal. W.H. Indus., Inc. v. Fundicao Balancins, Ltda., 397 N.J. Super. 455, 459 (App. Div. 2008) (citation omitted).

The order under review is affirmed.

1 Because plaintiff's husband John Bush only asserts a per quod claim, we shall refer to plaintiff in the singular throughout this opinion.