KAREN MURPHY v. MOUNTAIN CREEK RESORT, INC

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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5072-15T2

KAREN MURPHY,

        Plaintiff-Appellant,

v.

MOUNTAIN CREEK RESORT, INC.,
CRYSTAL SPRINGS RESORT, INC.,
LINDSEY SPASOVA, JENNIFER
KUCHARIK and LYNELLE SENSBACH,

     Defendants-Respondents.
____________________________________

              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.
              L-0090-14.

              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
              brief).

PER CURIAM
      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

Discrimination (LAD), 
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

Act (CRA), 
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

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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

governmental authority.

     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.

                                I.

     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 . . .

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under the same standard as the trial court."                Templo Fuente De

Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 
224 N.J.
 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., 
142 N.J.
 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

Plymouth, 
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.

Buechel, 
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.'"

Marinelli, 
303 N.J. at 77 (quoting Cummings v. Bahr, 
295 N.J.

Super. 374, 389 (App. Div. 1996)).



                                         4                              A-5072-15T2
                                        II.

     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[.]

            [N.J.S.A. 10:5-12(a)].

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

Cir. 1979)).

     Once plaintiff establishes these four elements, the burden

shifts     to    defendants      to    demonstrate        a   legitimate,       non-

discriminatory        reason   for    her   termination.       Zive    v.   Stanley

Roberts, Inc., 
182 N.J. 436, 449 (2005).                Then, "[i]f the employer

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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

Grand, Inc., 
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

(quoting Kelly, 
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?


                                    6                               A-5072-15T2
A: To work in the office, yes.

Q: Who did you hire?

A. Several people      were   hired.      Lauren
Przybylinski.

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,
twenties? Thirties?

A: Twenties.

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?

A: Twenties.

     . . . .

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?

     . . . .



                       7                           A-5072-15T2
          A: Very soon – before I left, there was another
          clerk hired, Dana.

               . . . .

          Q: Approximately      how    old    was   she,    what
          category?

          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?

          A: Yes.

          Q: Okay.     Who replaced you?

          A: I don’t know . . . I don't know how to
          answer this question only because at first [my

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            supervisor] I believe was kind of, like,
            filling in, you know, because they were down
            one person.

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



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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
             discriminatory animus.

      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


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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.    
N.J.S.A. 10:5-

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.

            Q: Okay.

            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

                                 11                            A-5072-15T2
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's case.

     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.

Sheriff's Office, 
194 N.J. 563, 594 (2008) (quoting 
N.J.S.A. 10:5-

12(e)).   Under the LAD, "aiding and abetting 'require[s] active

and purposeful conduct.'"    Id. (quoting Tarr v. Ciasulli, 
181 N.J.
 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

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          assistance; [and] (3) the defendant             must
          knowingly   and  substantially assist            the
          principal violation.'"

          [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

of discrimination.

     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

                                  13                             A-5072-15T2
between the two."       Hughes v. Home Depot, Inc., 
804 F. Supp. 2d 223, 227 (D.N.J. 2011) (quoting Reyes v. McDonald Pontiac GMC

Truck, 
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.

See Reyes, 
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.

                                        III.

     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.



                                        14                                 A-5072-15T2
     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



                                          15                                 A-5072-15T2
we   have   determined   summary    judgment   was   appropriate,   the

reconsideration motion was also properly denied.

     Affirmed.




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