DIANA STEVENS VS. COUNTY OF HUDSON (L-3792-16, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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
APPELLATE DIVISION
DOCKET NO. A-5647-17T2
DIANA STEVENS,
Plaintiff-Appellant,
v.
COUNTY OF HUDSON, and
NUZHAT IQBAL, improperly
pled as NUZHAT IGBAL,
Defendants-Respondents.
_____________________________
Submitted December 16, 2019 – Decided January 15, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3792-16.
Eldridge Hawkins, attorney for appellant.
Chasan Lamparello Mallon & Cappuzzo, attorneys for
respondents County of Hudson, and Nuzhat Iqbal, in
her official capacity only (Cindy Nan Vogelman, of
counsel and on the brief; Qing Hua Guo, on the brief).
Weiner Law Group LLP, attorneys for respondent
Nuzhat Iqbal, in her individual capacity (Jacqueline A.
DeGregorio, of counsel and on the brief; Julia O.
Donohue, on the brief).
PER CURIAM
Diana Stevens (plaintiff) appeals from two July 13, 2018 orders granting
summary judgment in favor of County of Hudson (County) and Nuzhat Iqbal
(Iqbal)1 in her official capacity and individual capacity (collectively
defendants). We affirm.
In August 2005, plaintiff began working for the County as a senior
personnel technician in the Personnel Department at Meadowview Psychiatric
Hospital (the Hospital). She reported to Iqbal, the Hospital Administrator, from
the start of her employment until October 2014, when she started reporting to
Chief Nursing Officer Alice Agecha. In 2011, Charulata Kachalia (Kachalia),
one of the personnel clerks supervised by plaintiff, told Iqbal that she wanted to
resign or transfer because of how plaintiff treated her. The County investigated
Kachalia's complaint, and a conflict resolution meeting was conducted between
Iqbal, Kachalia, and plaintiff.
1
Defendant Iqbal is improperly pled in plaintiff's complaint and briefs as
"Igbal."
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Shortly thereafter, Iqbal issued plaintiff a written warning for neglect of
duty, incompetence, and conduct unbecoming a public employee. Plaintiff was
on leave for three weeks, during which Iqbal supervised the department. She
observed that plaintiff maintained the department in a disorganized fashion, with
"coffee and food stain[ed]" confidential documents strewn about the room.
Plaintiff also failed to file disciplinary paperwork and employee performance
evaluations, failed to timely submit timesheets, and made significant payroll
errors. Iqbal prepared a remediation plan for plaintiff.
On May 17, 2013, plaintiff received a Notice of Minor Disciplinary Action
for failing to follow up on an employee's leave, which resulted in a mistaken
continuation of health benefits by the County. She was charged with: (1)
neglect of duty; (2) incompetence, inefficiency or failure to perform duties; (3)
insubordination; and (4) conduct unbecoming a public employee. She was
suspended for two days. Iqbal continued to receive complaints about plaintiff's
management of the department, and Kachalia complained to Iqbal almost daily,
while the other clerk came to Iqbal in tears stating that "she cannot take it
anymore."
In August 2014, the new Hospital Medical Director told plaintiff that the
nutritionist Liliya Racz (Racz) was being paid for more hours than she actually
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3
worked. Plaintiff informed Iqbal, who said that she would investigate. Iqbal
was satisfied that there was no discrepancy and told plaintiff that the issue was
resolved. But in October 2014, plaintiff brought disciplinary charges against
Kachalia and recommended that she be suspended for two days. The Deputy
Director of the Department of Health & Human Services (the DHHS)
investigated and found that no discipline was warranted against Kachalia.
At a morning meeting on October 10, 2014, plaintiff allegedly placed a
file in front of Iqbal and stated "my staff said you have been behind closed doors
so they could not have the paperwork and payroll signed." Plaintiff was issued
a Notice of Minor Disciplinary Action, and she was suspended for three days
for insubordination, incompetence, and conduct unbecoming of a public
employee. The Notice stated that her conduct was inappropriate for the setting ,
and that she failed to follow Iqbal's directive regarding how to best access her.
Plaintiff appealed the discipline and the matter was forwarded to the Director of
the DHHS, Darice Toon (Toon). Toon upheld two of the three
charges⸺insubordination and conduct unbecoming a public employee⸻and
sustained the suspension. Plaintiff did not appeal this decision to the Civil
Service Commission.
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When the Pulaski Skyway was closed for repairs in 2014, plaintiff was
permitted to work an earlier shift, but Iqbal told her that they would revisit the
issue in six months. On October 16, 2014, Iqbal informed plaintiff that she
would resume her original work schedule. Plaintiff claims that this was in
retaliation for the Racz timesheet incident. But she also acknowledged that Iqbal
was permitted to adjust her hours. Additionally, plaintiff alleges that some of
her vacation time was denied in retaliation. She requested eight days off, but
was only allowed one day because the request was not timely, as required by
County policy.
On January 21, 2015, plaintiff filed an internal complaint against Iqbal.
Plaintiff alleged that Iqbal created a hostile work environment based on four
incidents: (1) plaintiff's three-day suspension; (2) Iqbal changing plaintiff's
work hours back to her original schedule; (3) plaintiff's vacation time being
cancelled due to a staff shortage; and (4) plaintiff receiving extra work.
In September 2015, plaintiff received a Preliminary Notice of Disciplinary
Action (PNDA) for (1) incompetence, inefficiency, or failure to perform duties;
(2) neglect of duty; (3) insubordination; (4) conduct unbecoming a public
employee; and (5) other sufficient cause. The PNDA cited fifteen different
infractions, and stated that plaintiff "failed, neglected and/or refused to perform
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her duties and/or has performed said duties in a less than satisfactory manner
over a protracted period of time. The performance of [plaintiff] has not
improved, despite consultation, coaching, training and discipline."
A hearing before an outside officer was conducted over the course of five
days. Plaintiff was represented by counsel who cross-examined County
witnesses. At the conclusion of the County's case, plaintiff withdrew her appeal.
But, the hearing officer still rendered a decision, determining that the County
proved ten of the fifteen infractions, and finding plaintiff was "guilty of failure
to perform her duties either through incompetence or inefficiency," and neglect
of duty. The hearing officer stated, "[h]er failures resulted in cost to the County
in additional overtime and the inefficient retention and layoff of temporary
employees. Her actions in allowing documents, some of which are certainly
confidential and may even be privileged, to remain loose and unsecured is of
serious concern." The hearing officer concluded that plaintiff:
[D]id not respond to the counselling by demonstrating
an improvement in her work. She continued to exhibit
a lax attitude about her job responsibilities during the
period of time covered by these [s]pecifications. . . .
Given the number of items and the seriousness of the
circumstances, . . . suspension is warranted.
The hearing officer determined that the appropriate penalty would be one month
without pay, but with the continuation of benefits. Plaintiff received a Final
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Notice of Disciplinary Action (FNDA) on November 21, 2016, which she did
not appeal.
On September 21, 2016, plaintiff filed a complaint against the County and
Iqbal in her official and individual capacities. The complaint alleged: (1)
discrimination based on race, hostile work environment and retaliation under the
New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; (2)
interference with beneficial economic interest, breach of implied covenant of
good faith and fair dealing, violation of the New Jersey Constitution; (3)
violation of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2;
(4) violation of the N.J. Const., art. 1, ¶ 1, 6, 18, and 19, and Peper v. Princeton
University Board of Trustees, 77 N.J. 55 (1978); (5) misuse and abuse of
process; and (6) violation of the New Jersey Racketeering Influenced and
Corruption Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2.
After discovery, the County defendants moved for summary judgment.
Iqbal also moved for summary judgment in her individual capacity. Plaintiff
cross-moved for partial summary judgment. Judge Martha D. Lynes heard oral
argument, and granted summary judgment in favor of the County defendants and
Iqbal individually, denied plaintiff's cross-motion, and dismissed plaintiff's
complaint with prejudice.
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When reviewing an order granting summary judgment, we apply "the
same standard governing the trial court." Oyola v. Xing Lan Liu, 431 N.J. Super.
493, 497 (App. Div. 2013). A court should grant summary judgment when the
record reveals "no genuine issue as to any material fact" and "the moving party
is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We owe no
special deference to the motion judge's conclusions on issues of law. Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We
consider the facts in a light most favorable to the non-moving party. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is
genuine only if, considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion, together with all legitimate inferences
therefrom favoring the non-moving party, would require submission of the issue
to the trier of fact." R. 4:46-2(c).
On appeal, plaintiff generally argues that the trial judge applied an
incorrect legal standard and did not issue an opinion that abides by court rules;
that her LAD, tort, and constitutional claims should not have been dismissed;
and that Iqbal is individually liable.
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I.
Plaintiff has brought claims against Iqbal in both her official and
individual capacities. "A public employee is not liable for an injury resulting
from the exercise of judgment or discretion vested in [her]," N.J.S.A. 59:3-2,
"for injury caused by [her] instituting or prosecuting any judicial or
administrative proceeding within the scope of [her] employment," N.J.S.A.
59:3-8, or "for an injury caused by [her] misrepresentation" while she is "acting
in the scope of [her] employment." N.J.S.A. 59:3-10. But, nothing shall
"exonerate a public employee" if her "conduct was outside the scope of [her]
employment or constituted a crime, actual fraud, actual malice or willful
misconduct." N.J.S.A. 59:3-14. Here, Iqbal was acting within the scope of her
employment, and plaintiff has not provided evidence to the contrary.
Plaintiff maintains that Iqbal is not entitled to qualified immunity under
the NJCRA. "The doctrine of qualified immunity operates to shield 'government
officials performing discretionary functions generally . . . from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.'"
Morillo v. Torres, 222 N.J. 104, 116 (2015) (alteration in original) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Iqbal contends that qualified
A-5647-17T2
9
immunity was designed to protect employees like her, because to the extent that
she was involved, "she was within the scope of her employment, following the
relevant policies of her employer, and deprived no one of any kind of civil right
under color of law without due process."
Plaintiff alleges that Iqbal is individually liable under the LAD because
she held a supervisory position and aided or abetted in the wrongful conduct.
See Herman v. Coastal Corp., 348 N.J. Super. 1, 27 (App. Div. 2002); Cicchetti
v. Morris Cty. Sheriff's Office, 194 N.J. 563, 594 (2008). Our Court explained
that co-employees "could not aid or abet their own acts." Cicchetti, 194 N.J. at
573. Plaintiff has not presented any evidence to defeat the entry of summary
judgment. Thus, we affirm as to Iqbal in her individual capacity.
II.
The LAD "guarantees that all citizens be afforded the civil rights promised
by the State Constitution." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 445-46
(2005). The statute's goal is to eradicate the "'cancer of discrimination.'" Id. at
446 (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (1988)). The LAD provides
that it is unlawful
[f]or an employer, because of the race, creed, color, .
. . sex, . . . of any individual, . . . to refuse to hire or
employ or to bar or to discharge . . . , from employment
such individual or to discriminate against such
A-5647-17T2
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individual in compensation or in terms, conditions or
privileges of employment[.]
[N.J.S.A. 10:5-12(a).]
"The LAD prevents only unlawful discrimination; it does not prevent the
termination or change of employment of any person who 'is unable to perform
adequately the duties of employment, nor [does it] preclude discrimination
among individuals on the basis of competence, performance, conduct or any
other reasonable standards.'" Zive, 182 N.J. at 446 (alteration in original)
(quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002)). That is, "the LAD
acknowledges the authority of employers to manage their own businesses." Ibid.
[I]t is not the purpose of the LAD "to prevent the
termination or change of the employment of any person
who in the opinion of the employer, reasonably arrived
at, is unable to perform adequately the duties of
employment, nor to preclude discrimination among
individuals on the basis of competence, performance,
conduct or any other reasonable standards[.]"
[Jason v. Showboat Hotel & Casino, 329 N.J. Super.
295, 302-03 (App. Div. 2000) (quoting N.J.S.A. 10:5-
2.1).]
Further, "[a]ll employment discrimination claims require the plaintiff to bear the
burden of proving the elements of a prima facie case." Victor v. State, 203 N.J.
383, 408 (2010).
A-5647-17T2
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New Jersey has adopted the federal standard that the Supreme Court of
the United States proclaimed in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595 (1988);
Zive, 182 N.J. at 447. In Clowes, our Supreme Court held that an employee
must prove four elements to show a prima facie case of discrimination: (1) that
he or she was in a "protected group"; (2) that he or she was performing her job
at a level that "met his [or her] employer's legitimate expectations"; (3) that he
or she "nevertheless was fired"; and (4) that the defendant "sought someone to
perform the same work after he [or she] left." 109 N.J. at 597 (internal quotation
marks and citation omitted).
Our Supreme Court further explained that "the 'employer's legitimate
expectations' is an objective and not a subjective standard," reserving "the issue
of the employer's subjective expectations for the pretext stage of a LAD case."
Zive, 182 N.J. at 454 (citation omitted). To satisfy that objective standard, "[a]ll
that is necessary is that the plaintiff produce evidence showing that she was
actually performing the job prior to the termination." Ibid. After the plaintiff
produces such evidence, the burden shifts to the defendant to "rebut the
presumption of undue discrimination by articulating some legitimate,
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nondiscriminatory reason for the employee's rejection." Andersen v. Exxon Co.,
89 N.J. 483, 493 (1982).
Plaintiff, an African American woman, brought claims for racial
discrimination, retaliation, and hostile work environment. First, a claim of
racially disparate treatment requires the employee to prove a discriminatory
motive, which in some circumstances can be inferred from the disparate
treatment itself. See Peper, 77 N.J. at 81. Plaintiff must "'demonstrate not only
a hostility toward members of the employee's class, but also a direct causal
connection between that hostility and the challenged employment decision. '"
Smith v. Millville Rescue Squad, 225 N.J. 373, 394 (2016) (quoting Bergen
Commercial Bank v. Sisler, 157 N.J. 188, 208 (1999)). Relevant evidence would
include proof "'that white employees involved in acts . . . of comparable
seriousness . . . were nevertheless retained[.]'" Jason, 329 N.J. Super. at 305
(first and second alterations in original) (quoting McDonnell Douglas, 411 U.S.
at 804).
Here, plaintiff claims that her suspensions were based on her race, but she
fails to provide a "direct causal connection" between the two. Smith, 225 N.J.
at 394 (internal quotation marks and citation omitted). She has also failed to
provide evidence that non-African American employees charged with
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comparable infractions received dissimilar or less serious discipline. The judge
aptly explained that, "[p]laintiff has not explained or shown through any proofs
as to why the decision to suspend her for three [days] was based on her
membership [in] a protected class. Defendants have demonstrated that the
disciplinary decisions made regarding . . . [p]laintiff were made with all
procedural and substantive due process[.]"
Next, plaintiff alleges that she was a victim of unlawful retaliation as a
result of the Racz timesheet incident. The prima facie elements of a retaliation
claim under the LAD require a plaintiff to demonstrate that: "(1) plaintiff was
in a protected class; (2) plaintiff engaged in protected activity known to the
employer; (3) plaintiff was thereafter subjected to an adverse employment
consequence; and (4) that there is a causal link between the protected activity
and the adverse employment consequence." Victor, 203 N.J. at 409. After the
plaintiff establishes the prima facie elements, the defendant must provide a
legitimate, non-retaliatory reason for its decision. Romano v. Brown &
Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995).
"Thereafter, the plaintiff must come forward with evidence of a discriminatory
motive of the employer, and demonstrate that the legitimate reason was merely
a pretext for the underlying discriminatory motive." Ibid. "Temporal proximity,
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standing alone, is insufficient to establish causation." Hancock v. Borough of
Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002).
Here, plaintiff claims that the Racz timesheet incident was an unlawful
activity. But, after plaintiff informed Iqbal about this situation, it was
investigated and determined that unlawful activity did not occur. Again,
plaintiff does not make a connection to the purported retaliation. See N.J.S.A.
10:5-12(d). In fact, defendants provided legitimate non-discriminatory reasons
for each of the alleged retaliatory actions. See Romano, 284 N.J. Super. at 549.
Plaintiff's three-day suspension was because of her conduct at a meeting, and it
was upheld by a department head who is also an African American woman. Her
shift changed back to her original schedule, something that Iqbal foreshadowed
could occur. Plaintiff's vacation time was denied because she did not follow
County policy. Plaintiff asserts that she was given extra duties, but could not
specify which duties. And the one-month suspension was upheld by a hearing
officer who found ten proven incidents of poor job performance.
Plaintiff alleges that there was a hostile work environment, which "occurs
when an employer or fellow employees harass an employee because of his or
her [protected status] to the point at which the working environment becomes
hostile." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601 (1993). This claim
A-5647-17T2
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requires a showing that the harassing conduct "(1) would not have occurred but
for the employee's [protected status]; and it was (2) severe or pervasive enough
to make a (3) reasonable [person in the same protected class] believe that (4) the
conditions of employment are altered and the working environment is hostile or
abusive." Cutler v. Dorn, 196 N.J. 419, 430 (2008) (quoting Lehmann, 132 N.J.
at 603-04). Whether the conduct is "severe or pervasive" is based on the totality
of the circumstances. Taylor v. Metzger, 152 N.J. 490, 506 (1998).
Plaintiff has not established that there was a hostile work environment.
She has not shown that defendants conduct was so "severe or pervasive" as to
make a reasonable person in plaintiff's situation believe that "the conditions of
employment are altered and [that the] working environment is hostile or
abusive." Cutler, 196 N.J. at 430 (internal quotation marks and citation
omitted). She cannot prove that the requisite level of hostility was met nor that
defendant would not have acted but for her protected status. Ibid. As such, the
judge properly granted summary judgment.
III.
Plaintiff also alleges interference with economic advantage, breach of the
implied covenant of good faith, abuse and misuse of process, and casting her in
a false light.
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The tort of interference with a prospective economic advantage requires:
"(1) a protected interest; (2) malice⸻that is, defendant's intentional interference
without justification; (3) a reasonable likelihood that the interference caused the
loss of the prospective gain; and (4) resulting damages." DiMaria Const., Inc.
v. Interarch, 351 N.J. Super. 558, 567 (App. Div. 2001). In her merits brief,
plaintiff does not discuss or analyze these elements, or provide facts that bol ster
her claims.
Plaintiff also discusses the "implied covenant of good faith," and that there
was evidence of a breach because of "theft of public moneys and retaliation
against the one who reported same[.]" Plaintiff does not highlight any
provisions in the County employee handbook that defendants have breached, nor
does she explain if defendants violated any Civil Service laws.
Abuse of process is "the misuse or misapplication of the legal procedure
in a manner not contemplated by law." Simone v. Golden Nugget Hotel &
Casino, 844 F.2d 1031, 1036 (3d Cir. 1988). Here, plaintiff was aptly provided
with all opportunity to be heard and to appeal the suspensions, in accordance
with Civil Service laws and regulations.
False light is an invasion of privacy tort that involves "publicity that
unreasonably places the other in a false light before the public." Romaine v.
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Kallinger, 109 N.J. 282, 293 (1988) (internal quotation marks and citations
omitted). When the false light claim is directed toward a public official, a
plaintiff has the additional burden of proving actual malice. See DeAngelis v.
Hill, 180 N.J. 1, 19 (2004). "A public entity is not liable for the acts or omissions
of a public employee constituting . . . actual malice[.]" N.J.S.A. 59:2-10. "[A]
public corporation, such as a city or other public body, by reason of its being an
artificial legal entity created by law to perform limited governmental functions,
cannot entertain malice, as a public corporation." O'Connor v. Harms, 111 N.J.
Super. 22, 26 (App. Div. 1970). Plaintiff argued before the judge that defendants
placed her in a false light by publishing her suspensions to the Civil Service
Commission, but she does not repeat this allegation in her merits brief. Nor is
there any explanation proffered as to how this demonstrates actual malice. Thus,
plaintiff's tort claim lacks sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E).
IV.
N.J.S.A. 10:6-2(c) provides:
Any person who has been deprived of any substantive
due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the
United States, or any substantive rights, privileges or
immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those
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substantive rights, privileges or immunities has been
interfered with or attempted to be interfered with, by
threats, intimidation or coercion by a person acting
under color of law, may bring a civil action for damages
and for injunctive or other appropriate relief.
To establish a violation of the NJCRA, a plaintiff must prove that: (1) "the
Constitution or laws of this State" conferred a substantive right; (2) the
defendant deprived the plaintiff of this right; and (3) the defendant was " 'acting
under color of law'" when it did so. Tumpson v. Farina, 218 N.J. 450, 473 (2014)
(quoting N.J.S.A. 10:6-2(c)). The NJCRA was modeled after 42 U.S.C. § 1983,
and federal courts interpret the NJCRA analogously to § 1983. Trafton v. City
of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011). "When a suit against a
municipality is based on § 1983, the municipality can only be liable when the
alleged constitutional transgression implements or executes a policy, regulation
or decision officially adopted by the governing body or informally adopted by
custom." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Policy is
made via a "decisionmaker possess[ing] final authority to establish a municipal
policy with respect to the action[.]" McTernan v. City of York, 564 F.3d 636,
658 (3d Cir. 2009) (first alteration in original) (internal quotation marks and
citation omitted). Customs are "practices of state officials [that are] permanent[]
and well-settled" as to constitute law. Ibid. (internal quotation marks and
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citation omitted). Further, there must be causation between the municipality's
actions and the constitutional injury. City of Canton v. Harris, 489 U.S. 378,
394 (1989). Here, plaintiff cannot highlight a County policy or custom that
would expose it to liability. She also has not shown that Iqbal was a
policymaker. This claim is unsubstantiated and not supported by any proffered
evidence; instead plaintiff makes a conclusory, blanket statement regarding
disparate treatment. Thus, her NJCRA claim was properly dismissed.
V.
Plaintiff further alleges that defendants violated her constitutional rights.
Again, plaintiff includes conclusory statements, arguing that defendants
deprived her of equal protection and engaged in discriminatory behavior that
prevented her from obtaining gainful employment.
Our Supreme Court "has the power to enforce rights recognized by the
New Jersey Constitution, even in the absence of implementing legislation."
Peper, 77 N.J. at 77. In such a circumstance, there are two theories of relief:
disparate treatment and disparate impact. Id. at 81. Disparate treatment occurs
when an "employer simply treats some people less favorably than others because
of their race, color, religion, sex, or national origin. Proof of discriminatory
motive is critical, although it can in some situations be inferred from the mere
A-5647-17T2
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fact of differences in treatment." Ibid. Disparate impact "involves employment
practices that are facially neutral in their treatment of different groups but that
in fact fall more harshly on one group than another and cannot be justified by
business necessity." Id. at 81-82 (internal quotation marks and citation omitted).
Disparate impact claims do not require proof of a discriminatory motive. Id. at
82. The plaintiff has to show that "similarly situated" employees⸺that is, "those
persons possessing equivalent qualifications and working in the same job
category as plaintiff"⸺were treated differently than the plaintiff. Id. at 84-85.
The Court stated that it sympathized with the plaintiff, but that "before [it could]
legitimately find her employer's conduct towards her to constitute
discrimination . . . , a more persuasive showing must be made that the decision
not to promote her was based upon something other than a bona fide evaluation
of her qualifications for the position." Id. at 86 (emphasis omitted).
Here, plaintiff fails to show that the decision to suspend her was based on
something other than a bona fide evaluation of her job performance and
disciplinary issues. She accuses defendants of constitutional violations, but does
not provide proof of other employees who have been treated more favorably on
the basis of race other than mere speculation and conjecture based upon the
salaries of other employees, the fact that their work hours were not shifted back
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like hers, or that they may have also had issues with their subordinates. None
of this is indicative of disparate treatment or disparate impact under the law.
VI.
New Jersey's RICO Act is a criminal statute that enables civil relief for
"[a]ny person damaged in his business or property by reason of a [RICO]
violation[.]" N.J.S.A. 2C:41-4(c). "Racketeering activity" under the statute
includes theft offenses, fraudulent practices, and other criminal acts. N.J.S.A.
2C:41-1(a). To be liable under RICO, an entity must have known of the
existence and criminal nature of the enterprise. See State v. Ball, 141 N.J. 142,
186-87 (1995).
"A public entity is not liable for the acts or omissions of a public employee
constituting a crime, actual fraud, actual malice, or willful misconduct."
N.J.S.A. 59:2-10. "[T]he existing law and public policy [is] that a public entity
should not be vicariously liable for such conduct of its employees." Trafton,
799 F. Supp. 2d at 444 (citation omitted).
Here, plaintiff does not cite to a single case or to the statute. Moreover,
she claims defense counsel is unfamiliar with RICO's requirements and states
that had counsel "needed more explanation, [they] should have requested same
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in discovery." But plaintiff failed to prove the elements of RICO. Therefore,
summary judgment should not be overturned.
To the extent that we have not addressed any of the parties' remaining
arguments, we conclude that they lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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