CATHY CASANO v. LIVINGSTON BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5727-12T3

CATHY CASANO,

Plaintiff-Appellant,

v.

LIVINGSTON BOARD OF EDUCATION,

JO TANDLER, In Her Individual

and Professional Capacities;

SUSAN BURMAN, In Her Individual

and Professional Capacities; and

ELAINE BAKKE, In Her Individual

and Professional Capacities,

Defendants-Respondents.

________________________________

October 2, 2014

Argued September 16, 2014 Decided

Before Judges Reisner, Koblitz and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9604-10.

Kevin M. Kiernan argued the cause for appellant (Kiernan & Campbell, attorneys; Mr. Kiernan, on the brief).

Cherie L. Adams argued the cause for defendants (Adams Gutierrez & Lattiboudere, LLC, attorneys; Ms. Adams, on the brief).

PER CURIAM

Plaintiff Cathy Casano, a teacher, appeals from a July 1, 2013 order, dismissing her complaint against defendants, Livingston Board of Education and several school administrators, at the close of the trial evidence. R. 4:40-1.

Plaintiff's November 2010 complaint and November 2011 amended complaint asserted that defendants subjected her to an age-based hostile work environment by giving her unjustified negative job evaluations; retaliated against her for filing a discrimination complaint; and denied her a reasonable accommodation of her disability, all in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.1 After reviewing the trial evidence, we conclude that no rational juror could find that defendants subjected plaintiff to an age-based hostile work environment, or to unlawful reprisals, or that they failed to reasonably accommodate her disability. Therefore, we affirm.

I

The following evidence was presented at the trial, which took place in June 2013. Plaintiff, a kindergarten teacher at Riker Hill Elementary School, testified that from the 2003-04 school year, until November 2009, she had an excellent relationship with the school principal, Jo Tandler. Plaintiff read to the jury from the consistently above-average evaluations she received from 2004 to May 2009. According to plaintiff, in November 2009, Tandler sent her a note asking to meet with her. When plaintiff questioned the reason for the meeting, Tandler said that plaintiff's two fellow kindergarten teachers had said she was not "pulling her weight" in some respects, and Tandler wanted to meet with the three of them to discuss that.

Plaintiff was astonished because she felt the accusation could not be true and she did not believe her colleagues would complain to the principal about her behind her back.2 She later emailed Tandler that she would attend the meeting but intended to tape record it. Tandler seemed offended that plaintiff wanted to tape record the meeting, and told plaintiff that the other two teachers were also not comfortable with that procedure. Tandler canceled the meeting. She told plaintiff that instead of trying to resolve the issue between the teachers, she would meet with plaintiff about her job performance.

Thereafter, plaintiff, accompanied by her union representative, attended a meeting with Tandler, who was accompanied by defendant Susan Burman, the school's director of human resources. Each side tape recorded this meeting.

We have read the partial transcript of that meeting, which appears in plaintiff's appendix. Tandler attempted to discuss what she perceived as concerns she had about events she observed in plaintiff's classroom. Essentially, Tandler said that plaintiff's teaching was perfect when she had advance notice that she was about to be evaluated, but she seemed distracted or inattentive when Tandler just stopped by to informally observe her classroom. When plaintiff had a chance to speak at this meeting, she disagreed with Tandler's assessment. However, plaintiff's union representative tended to dominate the conversation, despite Burman's repeated requests that the union representative let plaintiff speak for herself so that she and Tandler could have an open dialogue about their respective views.

At the meeting, the union representative raised the issue of another teacher, who was then on leave, coming back to the school and perhaps replacing plaintiff. That teacher had been job-sharing with another teacher before she went out on leave, but job-sharing was no longer an available option. The union representative expressed concern that plaintiff might be forced to transfer to another school in order to make room for the returning teacher.

Tandler reassured the union representative that she had no intention of replacing plaintiff with another teacher. She also expressed her long-held philosophy that if one of her teachers was having a problem with job performance, she would not try to get that teacher transferred to another school; rather she would work with that teacher to improve her performance. Tandler also assured plaintiff that she had always liked her and that there was nothing personal in her comments about plaintiff's job performance. On cross-examination, plaintiff admitted that she had no problem with Tandler between the November meeting and her March 2010 evaluation.

Plaintiff testified that at a performance evaluation in March 2010, Tandler gave plaintiff ratings of "basic" (satisfactory) in one out of twenty-five categories.3 She gave her ratings of "proficient" (above average) in the other categories. Some of the ratings were lower than plaintiff thought she deserved. Plaintiff refused to sign the evaluation, even to acknowledge receipt. She asked for another meeting with Tandler, who told plaintiff to put her concerns in writing instead.

In April 2010 Tandler and Elaine Bakke, the District Supervisor for language arts and reading, each observed plaintiff's classroom and made some criticisms that plaintiff felt were unjustified. On cross-examination, plaintiff admitted that she only changed her teaching approach in response to those criticisms or suggestions she agreed with, and did not make changes where she disagreed with Tandler's and Bakke's points of view. After the informal observations in April, plaintiff filed a union grievance dated May 3, 2010, alleging that Tandler had changed her ratings on two categories in the March evaluation and then refused to meet with her to discuss the changes. On May 20, 2013, plaintiff filed another grievance concerning the April observation. In a June 4, 2010 email to Burman, plaintiff requested a transfer to another school; this request was not related to any medical problem.

On June 10, 2010, Tandler again formally evaluated plaintiff and gave her five proficient ratings, sixteen basic ratings and four unsatisfactory ratings. Tandler placed plaintiff on a corrective action plan for the following school year. Plaintiff and her union representative tape recorded the meeting with Tandler at which the June evaluation was discussed. Plaintiff testified that after attending the meeting, she felt "sure that I was a targeted teacher and that there was definitely a sense that they wanted me out of that school."4

Shortly after the June meeting, plaintiff developed irritable bowel syndrome (IBS), and went on a medical leave of absence. On June 21, 2010, Burman sent plaintiff an email notifying her that her earlier transfer request was denied because there was not a principal "willing to accept a transfer at this time."

Plaintiff admitted that she did not request a transfer again, and in particular, she did not request a transfer after she developed IBS. However, after she went out on sick leave in June 2010, she repeatedly refused to return to work at Riker Hill Elementary School, claiming that she would find it too stressful to work there.

Although plaintiff had served for many years as the school's affirmative action representative, and had attended training on anti-discrimination laws, she never filed a complaint of discrimination with the District's affirmative action office, and she never mentioned any alleged discrimination in any of her union grievances. On cross-examination, she also admitted that she never submitted a request for a reasonable accommodation of a claimed disability.

Plaintiff presented testimony from her treating psychiatrist, Dr. Richard Dickes. When he began treating plaintiff on July 19, 2010, plaintiff told him she was suffering from panic attacks, crying spells, sleeplessness and a variety of physical symptoms. She felt that the "people at the school" were trying "to break her down." She told the doctor that she "felt well until the problems at school began when she was getting less than stellar evaluations." Dr. Dickes diagnosed plaintiff as having an adjustment disorder, which means that her symptoms were a reaction to her situation. He also found she had a "dependent personality" meaning "someone who needs a lot of reassurance and support." He explained that "people who have that style can be very effective in every day life, unless they feel a strong sense of that support is withdrawn, and then they can get quite upset."

Dr. Dickes opined that, as of December 2, 2012, when he authored his expert report, "a lot of the original depressed symptoms had lifted," but plaintiff had many limitations, including fear of going out in public where she might meet students or parents from the school. He opined that it was

extremely unlikely that she will be able to resume work in Livingston, despite her 21 years with the district. Her long-term prognosis may be considered fair to good. She would like to resume work as a teacher, and it is likely she would function effectively in a setting in which she feels her superiors value her competence and contributions to the children and to the school. . . . It is my opinion to a reasonable degree of medical probability that her symptoms were precipitated by and continued because of the events at work.

Dr. Dickes did not testify that plaintiff required an accommodation of her disability in the form of a transfer to another school. Nor did he testify that he had provided such a request to the school district on her behalf. Rather, his opinion was, essentially, that plaintiff perceived the criticism of her job performance as a personal attack on her, and she would have that same perception if she worked at any school where she felt her superiors did not "value her competence and contributions." He explained that even though she had not worked at the Riker Hill school since June 2010, "she felt if she went back and had to be subject to being observed and not being given a good evaluation or a fair evaluation . . . she became quite anxious."

On cross-examination, Dr. Dickes admitted authoring a May 9, 2011 letter stating that plaintiff had "improved sufficiently that it is reasonable to plan for her return to work for the Fall semester." He did not list any restrictions on her ability to return to work. He did not indicate that she could not return to the Riker Hill school or that she could not be supervised by Tandler.

When asked on cross-examination if he believed plaintiff was medically able to work at a different school district, Dr. Dickes responded, "I think that when she finds it somewhat easier to get around that she may be able to do that." He also admitted that plaintiff needed "good evaluations" to function, and stated, "I don't think she does very well in a critical setting." He also would not state, on re-direct, that plaintiff would have been able to function any better at a different school. He testified that would be "a speculation." He did testify that she needed "more time" to get used to the idea of going back to work. But he admitted on re-cross that none of his letters to the school district asked that plaintiff be "gradually re-introduced to the work environment" and he admitted it was speculative whether a gradual reintroduction would have helped her.

At the close of plaintiff's evidence, defendants moved for a directed verdict. While expressing strong reservations about the weakness of plaintiff's case, the trial judge denied the motion.

In her testimony for the defense, Tandler recalled that she and plaintiff were friends throughout her ten-year tenure as principal. She described plaintiff as a wonderful person but lacking in confidence. She denied knowing the ages or salaries of plaintiff and the two other kindergarten teachers, and denied that age or salary were a factor in her evaluations of plaintiff. Tandler testified that in the 2009-10 school year, the district implemented a new reading program. Plaintiff was unable to attend the summer training for the program, because she was moving her household.

Tandler testified that it was her practice to informally drop in on her teachers' classrooms on a daily basis. At the beginning of the 2009-10 school year, she began noticing that plaintiff's classroom was not as well organized as usual. She testified that: "Routines that [plaintiff] was normally very good about setting up did not appear to be in place with the children. She seemed a little overwhelmed and pre-occupied which caused me some concern." Tandler also noted that plaintiff's class was fifteen minutes late showing up for a school assembly. As a result, on November 10, 2009, Tandler had an hour-long informal chat with plaintiff about her concerns. At this meeting, plaintiff denied having any personal problems that might be affecting her work performance, and diverted the discussion to another topic. She told Tandler that she felt the other teachers were excluding her from their activities.

Tandler spoke to the other two teachers, who also expressed some resentments toward plaintiff. As a result, Tandler scheduled a meeting to let the three teachers discuss their perspectives and "kind of put this thing to rest and move on . . . so we can function cohesively as a group." However, when plaintiff said she wanted to tape record the meeting, the other two teachers were "very, very upset" and did not wish to participate. Tandler canceled the meeting, and told plaintiff she still wanted to talk to her about "some of the performance issues that I didn't really have a chance to address at our November 10th meeting because you kind of diverted the conversation into a discussion about your colleagues."

At the next meeting, on November 19, 2009, plaintiff's union representative was present. Tandler discussed specific job performance problems that she had observed. Tandler felt the meeting ended on a positive note, and she continued to informally observe plaintiff's classroom thereafter. Tandler observed significant improvement in plaintiff's job performance, and thought the meeting had been productive.

Tandler conducted plaintiff's scheduled formal evaluation on March 5, 2010. She suggested in advance that plaintiff present a reading lesson during that class, of a type that was part of the new curriculum. However, plaintiff decided to present a different lesson, of a type that was not part of the curriculum. Tandler did not think the lesson was entirely successful, but plaintiff "did an okay job." When Tandler gave plaintiff her ratings, the two of them had a disagreement on two of the ratings, one "basic" for classroom management, and the other "proficient" for instructional outcomes. Plaintiff thought those ratings should have been higher.

According to Tandler, plaintiff was so upset and angry about those ratings that Tandler spent an additional two hours with her after school discussing them. At the end of the meeting Tandler agreed to change the ratings. However, after going home and thinking it over, she decided that she should not let plaintiff intimidate her into giving her ratings Tandler did not feel she deserved. Accordingly, she changed the ratings back to their original levels. Plaintiff was very upset when Tandler told her about the change. Tandler suggested plaintiff could submit a written rebuttal for her file, but plaintiff did not do so.

Later in the month, plaintiff had an illness and a death in the family, and was out of work for the rest of the month. When plaintiff returned to work in April, Tandler observed her classroom, and noticed "a rapid decline in what was going on in [plaintiff's] classroom." The children "were all over the place" and plaintiff "was in the back of the room over by her desk not engaged . . . and there wasn't any instruction going on."

Tandler asked Bakke to observe plaintiff's classroom, because she was very concerned that plaintiff was not properly implementing the new reading curriculum. Bakke conducted the observations and communicated to Tandler some serious concerns about what she saw. Bakke's report was provided to plaintiff, with suggestions for improvement. However, based on Tandler's subsequent observations, plaintiff did not follow those suggestions, and her classroom continued to be "chaotic." Tandler gave plaintiff written feedback about what she observed, but plaintiff "didn't really want to talk about it." Plaintiff filed a series of grievances, none of which mentioned alleged discrimination.

Tandler conducted plaintiff's annual evaluation in June 2010. She consulted with Bakke in preparing the ratings, because "there were concerns over the implementation of the IRLA reading program and our curriculum." She and Bakke "tried to go through it very carefully to decide on what ratings we felt were fair and reflected Cathy's overall performance." Tandler testified that plaintiff's age and salary level did not factor into the evaluation at all. In particular, Tandler explained that plaintiff received an unsatisfactory rating for professional responsibilities relating to her teaching practices, because she refused to accept constructive criticism

If . . . you gave her some feedback . . . and tried to get her to do things a little differently, she would say thank you for your feedback but I'm doing it the way I feel, basically, I'm doing it the right way, and that's very hard to communicate with someone when they're not receptive.

At a meeting on July 10, 2010, during which plaintiff continued to reject any criticism of her work performance, Tandler told plaintiff that she would be placed on a corrective action plan for the next school year. The plan involved listing areas the teacher needed to improve and the administrative support and resources that would be provided to the teacher "to be able to be successful." Being placed on the plan had no effect on plaintiff's employment status or salary.

Tandler testified that student DRA assessments (reading test scores) were not part of a teacher's evaluation. In fact the scores were not provided to Tandler; they were sent to the school's reading specialist. She also testified that, because plaintiff had difficulty teaching special needs children in the past, those children were not placed in her classes.

Tara Lockwood, one of the other two kindergarten teachers, testified that during the 2009-10 school year, plaintiff's behavior changed. She seemed stressed and overwhelmed. Lockwood testified that plaintiff also appeared to "have a difficulty grasping the [reading] curriculum." Plaintiff always had many questions about how to implement the program and seemed "overwhelmed" by it. According to Lockwood, plaintiff seemed to have trouble controlling her students, and frequently came to work late that year.

Lockwood confirmed that Tandler visited all of the kindergarten classrooms on a daily basis. Lockwood also confirmed that she and the third teacher, Mrs. Bannon, taught the children with behavior problems and lower academic skills, because they were better able to handle them than plaintiff was.

Lockwood testified that in November 2009, Tandler told her and Bannon that plaintiff had "complained about us as a team" and they needed to have a kindergarten team meeting. Lockwood and Bannon both felt that, over the years, plaintiff had a tendency to blame them whenever "things were not going well for [her]," and whoever was the principal at the time would call a meeting and ask Bannon and Lockwood to help plaintiff out. Nonetheless they agreed to have the meeting, until they learned that plaintiff planned to tape record it. The two were not comfortable with having a tape recorded meeting. Lockwood was forty-one years old in the fall of 2009, and turned forty-two in January 2010.

The defense also presented testimony from the kindergarten aide who worked in plaintiff's classroom during the 2009-10 school year, as well as during the prior two years. She observed that plaintiff seemed less able to control her students than the other two teachers, and frequently asked the aide to speak to disruptive students. The aide also "felt like [plaintiff] was not herself, especially more towards the end of the year. She seemed like fragile, like she wasn't well."

Bakke, the school district's language arts supervisor, testified that she was fifty-eight years old during the 2009-10 school year. Over the years she had developed a friendly relationship with plaintiff. During the 2009-10 school year, Tandler asked her to informally observe plaintiff's class room to see if she was properly implementing the "routine and management" aspect of the new reading program. While observing the class, Bakke noticed that the children did not seem to know their classroom routine and seemed "very confused about what to do." She also observed that plaintiff was not using the "teaching point" method which was a component of the new reading program.

Bakke wrote up her observations, with some suggestions for improvements and asked plaintiff if she could discuss it with her. Plaintiff refused to discuss it without having a union representative present. Bakke also testified that Tandler asked her to share her observations with Tandler, for inclusion in plaintiff's annual evaluation. On cross-examination, Bakke testified that she interacted with plaintiff on a number of occasions during that school year and did not notice any change in plaintiff's behavior between September and April 2010.5

Burman, the Human Resources manager, testified that the district's policy with respect to teachers seeking a transfer was to ask the principals if any of them wished to accept a transferring teacher. When plaintiff made her transfer request, Burman presented it at a staff meeting, but none of the principals at the meeting stated that they would accept a transfer. Burman testified that, at the time of the trial, plaintiff remained a tenured teacher on a leave of absence.

Burman also explained that the purpose of a corrective action plan was "to identify areas in need of performance and to formalize a process to have the employee improve those areas." She stated that the majority of teachers who received corrective action plans over the past five years were under the age of forty. She testified that corrective action plans were not used as a tool to induce teachers to leave the District, and that during her employment with the District all but one of the teachers who were placed on corrective action plans had returned to work the following year. That individual retired when she was on her third year of a corrective action plan; she was one out of ninety-two employees who retired between 2005 and 2012.

Burman testified that Lockwood and Bannon, like plaintiff, were at the top of their salary ranges. However, due to longevity, plaintiff was earning about $1000 a year more than they were. Burman testified that there were also teachers in the District who earned more than plaintiff. In November 2009, Lockwood was forty-one and Bannon was forty. Plaintiff was forty-five.

Assistant District Superintendent Mary Oates testified that she was present at the staff meeting where Burman asked six principals if they would accept a teacher transfer. None of them said that they would. She also confirmed that there were teachers older than plaintiff teaching at the Riker Hill school.

At the close of the evidence, defendants moved for a directed verdict. In an oral opinion placed on the record on June 20, 2013, the trial judge granted the motion. She found that neither plaintiff nor Dr. Dickes made a request that plaintiff be transferred. "At best [their] letters request a medical leave, which was granted by the Board of Education." She also found that plaintiff was not medically cleared to return to work "with or without restrictions." Consequently, the judge found insufficient evidence to submit plaintiff's disability-based "failure to accommodate" claim to the jury. The judge also found no evidence that would support plaintiff's claims of retaliation and age discrimination.

II

Rule4:40-1 provides in relevant part that "[a] motion for judgment, stating specifically the grounds therefor, may be made by a party either at the close of all the evidence or at the close of the evidence offered by an opponent." In deciding a motion for judgment made pursuant to Rule4:40-1, a court must accept as true all the evidence presented by the non-moving party and the legitimate inferences drawn from that evidence to determine whether the proofs submitted are sufficient to warrant a judgment in the non-moving party's favor. Prioleau v. Kentucky Fried Chicken, Inc., 434 N.J. Super.558, 569 (App. Div. 2014).

Motions made pursuant to Rule4:40-1 "are governed by the same standard as motions for involuntary dismissal," Rule4:37-2(b). Ibid. Under that rule, "a directed verdict is granted only if, accepting the [non-moving party's] facts and considering the applicable law, 'no rational jury could draw from the evidence presented' that the [non-moving party] is entitled to relief." Id.at 569 (quoting Pitts v. Newark Bd. of Educ., 337 N.J. Super.331, 340 (App. Div. 2001)); see alsoMonaco v. Hartz Mountain Corp., 178 N.J.401, 413 (2004). "[I]f reasonable minds could differ" as to whether the non-moving party's proofs could sustain a judgment in its favor, "the motion should be denied." Bozza v. Vornado, Inc., 42 N.J.355, 357-58 (1964). On appeal, we apply the same standard as the trial court. Frugis v. Bracigliano, 177 N.J.250, 269 (2003).

Having reviewed the entire record, we find no error in the court's decision to grant the motion. We begin with plaintiff's claim of age-based harassment, because that was the alleged genesis of her emotional break-down and subsequent accommodation claim. The evidence does not support plaintiff's claim of age discrimination. Nor does the evidence support a claim of a hostile work environment.

We begin by considering the legal framework for proving age discrimination, because the heart of plaintiff's claim is that she was given unfair negative evaluations, while younger employees were given more favorable ratings. Our courts generally follow the three-step burden-shifting approach first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). SeeVictor v. State, 203 N.J.383, 408-10 (2010). In the context of this case, plaintiff must present a prima facie case by producing some evidence that she was subjected to an adverse employment action to which younger employees were not subjected. The employer must then produce evidence of a legitimate non-discriminatory reason for its challenged action.

In the third stage of the burden-shifting scheme, the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision. To prove pretext, a plaintiff may not simply show that the employer's reason was false but must also demonstrate that the employer was motivated by discriminatory intent.

[Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005) (citations omitted).]

Addressing the first prong of the test, it is questionable whether giving an employee an unfavorable job evaluation, without more, is sufficient to support a prima facie case of discrimination. "Although [plaintiff] asserts that her unfavorable job evaluations were the result of discrimination, we have held in a related context that an unfavorable evaluation, unaccompanied by a demotion or similar action, is insufficient [to establish an adverse employment action]." El-Sioufi v St. Peter's Univ. Hosp., 382 N.J. Super.145, 169-70 (App. Div. 2005). Further "without more, an employer's filing of a disciplinary action cannot form the basis of a LAD complaint." Shepherd v. Hunterdon Dev. Ctr., 174 N.J.1, 26 (2002).

Addressing the age component of the prima facie case, we acknowledge that plaintiff need only show that the favored employees were "sufficiently younger to permit an inference of age discrimination." Bergen Commer. Bank v. Sisler, 157 N.J.188, 213 (1999) (citation omitted). However, Lockwood and Bannon, the other teachers to whom plaintiff compared herself, were both in their forties and only a few years younger than she was. Consequently, even assuming for the sake of argument that plaintiff presented a prima facie case of age discrimination, we agree with the trial judge that it was quite weak.

In response to plaintiff's prima facie case, defendants produced overwhelming evidence that the evaluations were a legitimate, non-discriminatory management response to plaintiff's work performance during the 2009-10 school year. On the third prong of the McDonnell Douglastest, plaintiff failed to produce evidence that the evaluations were a pretext for age discrimination. She admitted that she refused to change her teaching methods in response to some of Tandler's and Bakke's suggestions because she was only willing to accept her superiors' criticisms if she agreed with them. That, in turn, was one of the reasons Tandler testified she placed plaintiff on a corrective action plan.

Nor did plaintiff produce any direct or circumstantial evidence that defendants had a plan to force older teachers to retire, either to save money on salaries or due to age-based prejudice. As noted, the other teachers to whom plaintiff compared herself were within a few years of her age and earned similar salaries. The individuals who evaluated plaintiff were older than she was. While plaintiff claims that the students taught by the other two teachers had lower DRA assessments than her students, defendants' evidence established that teachers were not evaluated based on their students' DRA assessments. Plaintiff produced no evidence to the contrary.

There was no evidence that placing a teacher on a corrective action plan was a form of age discrimination or part of a plan to force an employee's retirement. According to Bakke, the only teacher who retired while on a corrective action plan did so after being on the plan for three years. And the vast majority of employees who were placed on corrective action plans were younger than plaintiff. Contrary to the assertions in plaintiff's brief, Burman did not testify that tenured teachers "often" chose to retire when placed on a corrective action plan. And there is no evidence that defendants suggested or even hinted that plaintiff should retire.

Further, plaintiff did not establish that Tandler's actions in giving her lower evaluations than plaintiff thought she deserved constituted the creation of a hostile work environment.

In any LAD-based hostile environment claim, the plaintiff must demonstrate that: (1) the conduct complained of was unwelcome; (2) that it occurred because of the plaintiff's inclusion in a protected class under the LAD; and (3) that a reasonable person in the same protected class would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive work environment. Our review of a hostile work environment claim requires us to consider the totality of the circumstances.

. . . We evaluate severity and pervasiveness by considering the conduct itself rather than the effect of the conduct on any particular plaintiff.

[El-Sioufi, supra, 382 N.J. Super. at 178-79 (citations omitted).]

Plaintiff's evidence did not establish that she was subjected to the sort of treatment that would cause a reasonable person to believe that the work environment was hostile and intimidating on account of her age. Plaintiff was not insulted or mocked on account of her age. She was not deprived of salary, tenure, or a job.

Plaintiff asks us to infer that her physical and emotional disability resulted from receiving negative job evaluations, and therefore, she was subjected to a hostile work environment. We cannot agree. Her own expert's testimony established that her disability stemmed from her idiosyncratic emotional reaction to what she perceived as an unsupportive work environment. Seeid.at 179. Applying the appropriate legal standards to the trial evidence, no rational juror could conclude that plaintiff suffered age discrimination or an age-based hostile work environment.

Plaintiff's reasonable accommodation claim likewise cannot survive scrutiny. SeePotente v. Cnty. of Hudson, 187 N.J.103, 110 (2006) (discussing reasonable accommodation). There was no evidence that plaintiff or her treating doctor requested an accommodation of her medical condition in the form of a transfer to another school. Moreover, Dr. Dickes candidly stated in his testimony that it was "speculative" whether such a transfer would have enabled plaintiff to return to work. Consequently, there was no medical proof that plaintiff required the accommodation of a transfer, or that she would have been capable of performing the job despite her disability if she had received a transfer.6 Seeid.at 111.

Finally, in her testimony, plaintiff admitted that she never requested a transfer after June 2010. Therefore, her claim that she was denied a transfer as a reprisal for the filing of her 2011 LAD lawsuit fails as well. We conclude that the complaint was properly dismissed.7

Affirmed.

1 In those pleadings, and a second amended complaint, plaintiff asserted additional causes of action. However, they are not the subject of this appeal.

2 On cross-examination, plaintiff admitted that even though she was very friendly with the other two teachers, and regarded them as "sisters," she did not ask them if they had made comments or complaints to Tandler about her.

3 The evaluation sheet, which is in the record, actually has nineteen categories.

4 The transcript of the meeting reveals that Tandler gave plaintiff a long, detailed explanation of problems she and Bakke had observed in plaintiff's classroom. Tandler urged plaintiff to let the supervisory staff work with her to improve her performance. Plaintiff barely responded at the meeting.

5 Bakke also testified that the DRA assessments were not used to evaluate teachers.

6 Nor does the record demonstrate that a transfer would have been a reasonable accommodation, even if plaintiff had requested it. An employee's emotional inability to accept constructive criticism is not a disability that an employer can reasonably be expected to accommodate. Transferring such an employee would simply shift a management burden from one school principal to another, without addressing the employee's work performance. See Gaul v. Lucent Technologies, 955 F. Supp. 345, 353 (D.C. N.J. 1997), aff'd 134 F.3d 576 (3d Cir. 1998).

7 We find no abuse of the trial judge's discretion in barring the admission in evidence of two birthday cards that Tandler sent plaintiff several years before the trial, but which plaintiff failed to disclose in discovery. Hence, the cards are not properly part of the appellate record. Plaintiff's arguments on this point do not warrant further discussion. R. 2:11-3(e)(1)(E).