NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5072-15T2
MOUNTAIN CREEK RESORT, INC.,
CRYSTAL SPRINGS RESORT, INC.,
LINDSEY SPASOVA, JENNIFER
KUCHARIK and LYNELLE SENSBACH,
Argued November 28, 2017 - Decided December 18, 2017
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Docket No.
Michael F. Rehill argued the cause for
appellant (Michael F. Rehill, attorney;
Michael F. Rehill and Lane Biviano, of counsel
and on the briefs).
Stefani C. Schwartz argued the cause for
respondents (Schwartz Simon Edelstein & Celso,
LLC, attorneys; Stefani C. Schwartz, of counsel
and on the brief; Erica M. Clifford, on the
Plaintiff Karen Murphy appeals from a January 28, 2016 order
granting defendants summary judgment, and a June 10, 2016 order
denying her motion for reconsideration. We affirm.
The following facts are taken from the record. Plaintiff was
employed in the accounts payable department of defendant Mountain
Creek Resort, Inc. (Mountain Creek) for sixteen years. She was
terminated on December 11, 2012, after raising her voice at her
supervisor when she learned she had been denied time off on
Christmas Eve. Plaintiff was fifty-eight years old at the time.
After plaintiff was terminated, her supervisor, Lindsey
Spasova, fulfilled her job duties. Thereafter, four individuals
were hired, some of whom took over plaintiff's job assignment.
When plaintiff learned of the hiring through former co-workers,
she filed a complaint in the Law Division alleging age
discrimination in violation of the New Jersey Law Against
N.J.S.A. 10:5-1 to 49, wrongful termination,
hostile work environment, retaliation, and aiding and abetting
discrimination against Mountain Creek, Crystal Springs Resort
(Crystal Springs), and several individual employees. The
complaint also alleged violation of the New Jersey Civil Rights
N.J.S.A. 10:6-1 to -2.
Defendants filed a motion for summary judgment, which the
motion judge granted. The motion judge found plaintiff failed to
establish a prima facie case of age discrimination. He found
plaintiff had no personal knowledge of the ages of the individuals
who replaced her. The motion judge found plaintiff did not present
evidence of a discriminatory motive or animus as plaintiff conceded
none of the defendants had commented about or alluded to her age.
He also found no basis for an aiding and abetting claim because
there was no evidence any of the defendants encouraged or assisted
in wrongful discriminatory conduct.
The motion judge found plaintiff could not sustain an LAD
claim against Crystal Springs because she was employed by Mountain
Creek, which was a separate entity. He found no prima facie case
under the CRA because all defendants were private individuals or
businesses, and were not acting under color of law or other
Plaintiff filed a motion for reconsideration. Her motion was
heard by a different judge and it was denied. The judge found
plaintiff had cited no new facts or law that were unavailable at
the time the court heard the motion for summary judgment to warrant
reconsideration. This appeal followed.
Our review of an order granting summary judgment is de novo.
Graziano v. Grant,
326 N.J. Super. 328, 338 (App. Div. 1999).
"[W]e review the trial court's grant of summary judgment . . .
under the same standard as the trial court." Templo Fuente De
Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
189, 199 (2016). The court considers all of the evidence submitted
"in the light most favorable to the non-moving party," and
determines if the moving party is entitled to summary judgment as
a matter of law. Brill v. Guardian Life Ins. Co. of Am.,
520, 540 (1995). The court may not weigh the evidence and
determine the truth of the matter. Ibid. If the evidence
presented "show[s] that there is no real material issue, then
summary judgment should be granted." Walker v. Atl. Chrysler
216 N.J. Super. 255, 258 (App. Div. 1987) (citing Judson
v. Peoples Bank and Tr. Co. of Westfield,
17 N.J. 67, 75 (1954)).
"[C]onclusory and self-serving assertions by one of the parties
are insufficient to overcome [summary judgment]." Puder v.
183 N.J. 428, 440-41 (2005).
Motions for reconsideration are left to the discretion of the
trial judge. Fusco v. Bd. of Educ.,
349 N.J. Super. 455, 462
(App. Div. 2002); Marinelli v. Mitts & Merrill,
303 N.J. Super.
61, 77 (App. Div. 1997). "[W]here there is a denial of a motion
for reconsideration, the standard . . . is 'abuse of discretion.'"
303 N.J. at 77 (quoting Cummings v. Bahr,
Super. 374, 389 (App. Div. 1996)).
Plaintiff claims the trial court erred by determining she did
not establish a prima facie case under the LAD because she could
not know the age of the employees who replaced her. We disagree.
The LAD states it is an unlawful employment practice
[f]or an employer, because of the . . . age
. . . of any individual . . . to discharge
. . . unless justified by lawful
considerations other than age, from employment
such individual or to discriminate against
such individual . . . in terms, conditions or
privileges of employment[.]
To establish a prima facie case of discriminatory discharge based
on age discrimination under the LAD plaintiff must establish she:
(1) belongs to a protected class; (2) "was performing h[er] job
[duties] at a level that met [the] employer's legitimate
expectations"; (3) was nevertheless fired; and (4) "[the employer]
sought someone to perform the same work after [s]he left." Clowes
v. Terminix Int'l, Inc.,
109 N.J. 575, 597 (1988) (alteration in
original) (quoting Loeb v. Textron, Inc.,
500 F.2d 1003, 1014 (1st
Once plaintiff establishes these four elements, the burden
shifts to defendants to demonstrate a legitimate, non-
discriminatory reason for her termination. Zive v. Stanley
182 N.J. 436, 449 (2005). Then, "[i]f the employer
articulates a legitimate reason for its employment decision, the
burden again shifts to the plaintiff to show that the employer's
articulated reason was not the true motivating reason, but was
merely a pretext to mask the discrimination." Kelly v. Bally's
285 N.J. Super. 422, 430 (App. Div. 1995).
The motion judge concluded plaintiff established the first
three prongs under Clowes,
109 N.J. at 597, but failed to establish
the fourth prong. "The fourth element of a prima facie case in
an age-discrimination case properly focuses . . . on 'whether the
plaintiff has established a logical reason to believe that the
decision [for termination] rests on a legally forbidden ground.'"
Bergen Commercial Bank v. Sisler,
157 N.J. 188, 213 (1999) (quoting
Murphy v. Milwaukee Area Tech. Coll.,
976 F. Supp. 1212, 1217
(E.D. Wis. 1997)). Therefore, plaintiff must demonstrate she "was
replaced with a 'candidate sufficiently younger to permit an
inference of age discrimination.'" Bergen,
157 N.J. at 213
285 N.J. Super. at 429).
Plaintiff claims she carried this burden by submitting her
former supervisor Spasova's deposition testimony, which stated
three younger employees had been hired to perform the work
plaintiff had previously performed. Spasova testified:
Q: After [plaintiff] was terminated, did you
hire other employees to work in your office?
A: To work in the office, yes.
Q: Who did you hire?
A. Several people were hired. Lauren
Q: What position was she hired for?
A: She was an AP [accounts payable] clerk for
Crystal Springs Golf.
Q: Okay. And approximately what was her age,
Q: Anybody else?
A: Brittany Garrett.
Q: And what position was she hired for?
A: An AP clerk.
Q: And what was her age bracket roughly?
. . . .
Q: Anybody else that you hired after
[plaintiff] was terminated?
A: Gloria Mello. She came to us as a temp and
was eventually hired on full.
. . . .
Q: Was there anyone else that was hired after
[plaintiff] was terminated?
. . . .
A: Very soon – before I left, there was another
clerk hired, Dana.
. . . .
Q: Approximately how old was she, what
A: Thirties, maybe forties.
We find no material evidence these individuals were hired to
replace plaintiff. The deposition testimony offered by plaintiff
demonstrates one of the hires was for Crystal Springs Golf, which
was not plaintiff's employer. Furthermore, the limited deposition
testimony relied upon by plaintiff does not offer any evidence
these individuals were hired to replace her. Rather, the evidence
demonstrates these individuals were hired sometime after
plaintiff's employment ended.
Indeed, plaintiff testified at her deposition she was unaware
if anyone had in fact replaced her. She believed her supervisor
had taken over her duties. Moreover, plaintiff was unaware of the
ages of any of the individuals who were hired after she left.
Specifically, plaintiff testified as follows:
Q: It's your allegation after you were
terminated you were replaced, correct?
Q: Okay. Who replaced you?
A: I don’t know . . . I don't know how to
answer this question only because at first [my
supervisor] I believe was kind of, like,
filling in, you know, because they were down
Therefore, the motion judge correctly concluded plaintiff failed
to produce sufficient evidence she was replaced by a younger
candidate to establish a logical inference of age discrimination.
This conclusion is also underscored by defendants proffering
a legitimate, non-discriminatory reason for plaintiff's
termination. Moreover, the record lacks evidence of a
discriminatory motive for plaintiff's termination.
The Supreme Court has stated when considering an employer's
grounds for termination courts should be conscious at-will
employees may be fired "for any reason[,] or no reason[,]
whatsoever, be it good cause, no cause, or even [a] morally wrong
cause." Woolley v. Hoffmann-La Roche,
99 N.J. 284, 290 (1980).
Once an employer has offered a legitimate reason for plaintiff's
termination, the burden shifts back to plaintiff to "either (1)
discred[it] the proffered reasons, . . . or (2) adduc[e] evidence,
whether circumstantial or direct, that discrimination was more
likely than not a motivating or determinative cause of the adverse
employment action." DeWees v. RCN Corp.,
380 N.J. Super. 511, 528
(App. Div. 2005) (quoting Fuentes v. Perskie,
32 F.3d 759, 761-62
(3d Cir. 1994)). Plaintiff must demonstrate the employer did not
act for the asserted non-discriminatory reasons by offering
evidence, which discredits the employer. Ibid.
Here, the motion judge found:
The event that gave rise to the alleged
discrimination came from a discrepancy event
between co-workers regarding certain days off
from work due to the holidays. This event
took place on December 11, 2012[,] and
[p]laintiff was terminated later that day.
According to the [p]laintiff, none of the
[d]efendants ever commented to her about her
age or ever alluded to [p]laintiff's age.
This Court finds that there is nothing that
would allow a rational factfinder to hold that
[d]efendants' decision to terminate
[p]laintiff was motivated in any way by
We agree with the motion judge's assessment. Plaintiff has
offered no evidence that the reason for her termination was
motivated by her age or any other discriminatory animus.
Plaintiff claims the motion judge erred by concluding she was
not an employee of Crystal Springs. She claims Mountain Creek is
wholly owned by Crystal Springs, and defendants Jennifer Kucharik,
Lynelle Sensbach, and Lindsey Spasova were Crystal Springs
employees. Plaintiff argues Mountain Creek's employee handbook
references Crystal Springs, and the employee's signature page for
acknowledging receipt of the handbook bears a Crystal Springs
title. Plaintiff argues the motion judge failed to analyze the
"overall economic realities" of the relationship between plaintiff
and Crystal Springs pursuant to Hoag v. Brown,
397 N.J. Super. 34
(App. Div. 2007).
In order to assert a claim for discrimination under the LAD
plaintiff must make a claim against her employer.
12(a). Here, the motion judge concluded plaintiff's employer was
Mountain Creek – not Crystal Springs. We agree there was ample
evidence demonstrating Mountain Creek was plaintiff's employer.
Plaintiff testified at her deposition she was never employed
by Crystal Springs. Specifically, she stated:
Q: . . . Was there a time that you then became
employed by Crystal Springs?
A: I don’t – I don’t think I was ever employed
by Crystal Springs.
Q: Okay. So they were never your employer?
A: I don’t believe so.
A: I think I was always under Mountain Creek.
Moreover, plaintiff's reliance on Hoag is misguided because
that case involved an employment dispute between an independent
contractor and the State Department of Corrections. Hoag,
397 N.J. Super. at 48. We noted the relationship was "[i]n the context
of an individual . . . who provides professional or specialized
services" under a "non-traditional employment relationship." Id.
at 47-48. Many of the factors we assessed in Hoag turned on the
nature of the plaintiff's employment as an independent contractor.
Here, plaintiff was not an independent contractor and there were
no circumstances surrounding plaintiff's employment that would
render it non-traditional. As a result, Hoag is inapposite to
Plaintiff claims she adduced prima facie evidence defendants
created a hostile work environment in which other employees aided
and abetted Mountain Creek to discriminate against her. Plaintiff
states her deposition testimony established instances of disparate
treatment because the office environment was comprised of cliques
of younger employees in which she was not included.
"[I]ndividual liability of a supervisor for acts of
discrimination or for creating or maintaining a hostile
environment can only arise through the 'aiding and abetting'
mechanism that applies to 'any person.'" Cicchetti v. Morris Cty.
194 N.J. 563, 594 (2008) (quoting
12(e)). Under the LAD, "aiding and abetting 'require[s] active
and purposeful conduct.'" Id. (quoting Tarr v. Ciasulli,
70, 83 (2004)). Therefore,
in order to hold an employee liable as an aider
or abettor, a plaintiff must show that "'(1)
the party whom the defendant aids must perform
a wrongful act that causes an injury; (2) the
defendant must be generally aware of his role
as part of an overall illegal or tortious
activity at the time that he provides the
assistance; [and] (3) the defendant must
knowingly and substantially assist the
[Id. (quoting Tarr,
181 N.J. at 84)].
As the motion judge concluded, plaintiff offered no evidence
of conduct by any of the named defendants that would qualify as
aiding and abetting. Plaintiff testified at her deposition none
of the individual defendants ever made any comments about her age.
Our review of the record demonstrates, aside from generalized
statements by plaintiff that she felt targeted by the office
cliques, there is no specific example of either a hostile work
environment or aiding and abetting to support a prima facie showing
Plaintiff alleges she was discharged in retaliation for
complaining to her supervisor about alleged disparate treatment.
She claims her supervisor's denial of the requested time off for
Christmas Eve was disparate treatment, and alleges defendants
mischaracterized her reaction to the denial of her request as
insubordination. She argues defendant's decision to terminate her
by mischaracterizing her conduct was retaliation.
To demonstrate a prima facie case of retaliatory discharge
plaintiff must establish: "(1) she was engaged in a protected
activity known to the defendants; (2) she was thereafter subjected
to an adverse employment decision; and (3) there was a causal link
between the two." Hughes v. Home Depot, Inc.,
804 F. Supp. 2d 223, 227 (D.N.J. 2011) (quoting Reyes v. McDonald Pontiac GMC
497 F. Supp. 614, 619 (D.N.J. 1998). Here, plaintiff fails
to establish a prima facie case for retaliation.
Plaintiff testified at deposition she yelled at her
supervisor because she was frustrated that she had to work a half
day on Christmas Eve. Plaintiff's testimony characterized her
discussion with her supervisor as hostile. She stated: "yea maybe
[other employees] thought I was being rude."
Plaintiff's outburst was not a formal grievance or complaint
of discriminatory behavior, which would be protected under the
LAD, but was a complaint regarding a denied holiday time request.
997 F. Supp. at 619 (holding plaintiff did not provide
evidence of a protected act where she complained generally
regarding workplace animosity and did not complain of the alleged
discriminatory conduct). For these reasons, no prima facie
evidence of retaliation was put forward by plaintiff. The order
granting defendants summary judgment was appropriately granted.
Lastly, plaintiff argues the motion judge who denied her
motion for reconsideration erred, ostensibly, for the same reasons
as the motion judge who denied summary judgment. We disagree.
Motions for reconsideration are granted in "those cases which
fall into that narrow corridor in which either (1) the court has
expressed its decision based upon a palpably incorrect or
irrational basis, or (2) it is obvious that the court either did
not consider, or failed to appreciate the significant of probative,
competent evidence." Fusco,
349 N.J. Super. at 462 (quoting
D'Atria v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Motions for reconsideration should be granted only upon a showing
of mistake of fact, law, or failure to thoroughly consider or
understand the record. Ibid.
The judge who considered plaintiff's reconsideration motion
concluded she failed to demonstrate there was a material dispute
of fact that the judge who granted summary judgment had overlooked.
The judge stated the denial of summary judgment "was not based
upon 'palpably incorrect or irrational basis'" and "[p]laintiff
supplies no additional probative evidence in this instant
application to remedy the evidentiary failure in this matter."
On appeal, plaintiff broadly argues "it is obvious that the
[c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." As we have
detailed above, plaintiff failed to demonstrate a prima facie
cause of action for the claims asserted in her complaint. Because
we have determined summary judgment was appropriate, the
reconsideration motion was also properly denied.