Kimberly A. Zack v. Integra Lifesciences Corporation ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1745-22
KIMBERLY A. ZACK,
Plaintiff-Appellant,
v.
INTEGRA LIFESCIENCES
CORPORATION,
Defendant-Respondent,
and
MOROLAKE ESI,
Defendant.
__________________________
Argued March 11, 2024 – Decided March 21, 2024
Before Judges Mawla, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2613-20.
Anthony Santos Almeida argued the cause for appellant
(Poulos LoPiccolo, PC, attorneys; Anthony Santos
Almeida, of counsel and on the briefs).
John T. McDonald argued the cause for respondent
(Reed Smith, LLP, attorneys; John T. McDonald and
Saranne E. Weimer, on the brief).
PER CURIAM
Plaintiff Kimberly A. Zack appeals from a January 9, 2023 order granting
summary judgment to defendant Integra Lifesciences Corporation (Integra). We
affirm.
Plaintiff is a White woman who was employed as a manager at Integra in
its New Jersey location. On June 14, 2020, during the protests of police violence
following the murder of George Floyd, plaintiff posted statistics from a
government website on her Facebook account showing police killed more
Whites than Blacks. This sparked a discussion in the comments from many
individuals, including some who worked for Integra.
In the comments, plaintiff stated that "it's so frustrating . . . [w]hat
everyone fails to realize is that if you're home on the couch doing what you're
supposed to be doing you won't ever be one of those numbers no matter what
your race, religion, or political affiliation!" She also said, "regardless of what
bucket you['re] in[,] if you were on the right side of the law[,] you wouldn't be
on the list in the first place . . . . [T]his hate will continue as long as everyone
keeps making it about skin color."
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One of plaintiff's direct reports, a Black scientist at Integra, commented
on the thread following plaintiff's post, stating it was "insensitive . . . comparing
the 'current situation' to the statistics of those shot to death by police." Another
Black employee at Integra was also offended by the post and sent it to an Integra
manager, Tyhesha Tidwell, who is also Black. Tidwell is a Senior Manager at
Integra's Boston, Massachusetts location. She wrote the following in the
Facebook comments:
This entire conversation is painful, layered[,] and
complex. Lives lost cannot simply be reduced to
numbers. To couch it in just 'doing what you were
supposed to do' or being on the 'right side of the law'
misses the point. If you truly want to engage in honest
dialogue, you have many on your timeline who would
probably help you see past the [W]hite privilege and
[W]hite fragility on display in most of these comments.
The reporting employee told Tidwell this was not the first time plaintiff
posted racially insensitive material on Facebook. Tidwell testified at deposition
that "[plaintiff] has a habit of saying racially insensitive things. She has posted
them on Facebook before." Tidwell testified she would have a problem with the
post if a Black person had made it "because as someone who understands math,
this is not the best way to represent information, and this, especially at this time,
was very incendiary." She had not reported any of plaintiff's prior posts to
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Integra, but she sent the June 14, 2020 post and ensuing comment thread to
Integra's human resources department.
The matter was investigated by Morolake Esi, Integra's Head of Human
Resources, Global Operations and Quality, and Lisa Evoli, Vice President of
Human Resources. Evoli reviewed the post and comments, and determined
plaintiff violated Integra's policies and expectations. The investigation also
revealed plaintiff was already on a Performance Improvement Plan (PIP), for,
among other things, unprofessional behavior, and had recently received a "Does
Not Meet Expectations" review on her evaluation—in part for behavioral issues.
After reviewing the Facebook post and plaintiff's history with Integra, Esi and
Evoli concluded plaintiff's violation warranted termination. Evoli terminated
plaintiff.
Plaintiff filed a complaint, alleging: reverse racial discrimination in
violation of the New Jersey Law Against Discrimination (LAD) against Integra;
reverse racial discrimination under the LAD against Esi; common law wrongful
discharge (a Pierce claim)1 based on the First Amendment to the United States
Constitution and the New Jersey State Constitution; and violation of the New
Jersey Civil Rights Act (CRA) based on interference with plaintiff's
1
Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980).
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employment. Defendants moved to dismiss the complaint in its entirety. On
April 5, 2021, the court dismissed the CRA claim, but denied the motion
regarding the remaining claims pending discovery.
Plaintiff amended her complaint, adding a count against Integra for
violation of the LAD under a "cat's paw"/accommodating discriminatory views
theory.2 Following discovery, defendants again moved for summary judgment
on all counts. Plaintiff conceded the dismissal of her claims against Esi, leaving
the LAD, Pierce, and cat's paw claims asserted against Integra for adjudication.
On January 9, 2023, the motion judge granted summary judgment to
Integra, dismissing all the remaining counts. He concluded plaintiff's
termination was not the result of discrimination because her post violated
Integra's company policy. There was no dispute about the contents of her post,
but "[w]hat [she posted] doesn't show is the relative percentages of what [the]
numbers [of persons shot] are to the population of those groups. And it is no
surprise . . . that there would be an adverse reaction to that post." For plaintiff's
reverse discrimination claim to survive summary judgment, she had to show
Integra was the unusual employer who had a history of discriminating against
Whites. The judge concluded the incident here was "singular" and there was
2
We discuss the "cat's paw" theory of liability in detail in Section III.B.
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"no evidence of any ongoing pattern . . . that [W]hites have been set upon by
[Integra]."
I.
A party is entitled to summary judgment if "the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law." R.
4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995).
"The court's function is not 'to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.'" Rios v. Meda
Pharm., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540). We review a
grant of summary judgment de novo, using the same standard that governed the
trial court's decision. Samolyk v. Berthe, 251 N.J. 73, 78 (2022).
II.
Plaintiff argues the reverse discrimination claim should not have been
dismissed because the LAD must be interpreted liberally. She asserts that our
law, which requires a plaintiff alleging reverse discrimination to show their
employer is the "unusual employer who discriminates against the majority,"
Erickson v. Marsh & McLennan Co., 117 N.J. 539, 551 (1990), is an overly
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restrictive standard. Plaintiff urges us to abandon the unusual employer standard
and follow the Third Circuit, which has held that as regards Title VII claims,
"the prima facie case in terms of 'background circumstances' and the uniqueness
of the particular employer is both problematic and unnecessary." Iadimarco v.
Runyon, 190 F.3d 151, 161 (3d Cir. 1999).
To establish a prima facie case of discrimination under the LAD, a
plaintiff must show: 1) they are a member of a protected class; 2) they applied
for or held a position for which they were objectively qualified; 3) they were
either not hired or terminated by the employer; and 4) the employer sought to,
or did fill the position with a similarly-qualified or less-qualified person. Bergen
Com. Bank v. Sisler, 157 N.J. 188, 210 (1999) (quoting Erickson, 117 N.J. at
550). In employment discrimination cases, our courts have adopted the burden-
shifting framework created by the United States Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 793 (1973), which requires:
(1) the plaintiff must come forward with sufficient
evidence to constitute a prima facie case of
discrimination; (2) the defendant must then show a
legitimate non-discriminatory reason for its decision;
and (3) the plaintiff must then be given the opportunity
to show that defendant's stated reason was merely a
pretext or discriminatory in its application.
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[Henry v. Dep't of Hum. Servs., 204 N.J. 320, 331
(2010) (quoting Dixon v. Rutgers, 110 N.J. 432, 442
(1988)).]
In Erickson, our Supreme Court stated:
In reverse discrimination cases, the rationale
supporting the rebuttable presumption of
discrimination embodied in the prima facie elements
does not apply. Thus, when a complainant is not a
member of the minority, courts have generally modified
the first prong of the McDonnell Douglas standard to
require the plaintiff to show that [they have] been
victimized by an "unusual employer who discriminates
against the majority." Indeed, when a complainant is a
member of the majority and not representative of
persons usually discriminated against in the work place,
discrimination directed against that person is
"unusual."
[117 N.J. at 551-52 (citations omitted).]
In Iadimarco, the Third Circuit held that modifying McDonnell Douglas
to include consideration of an employer's background circumstances presented
a more onerous burden to White plaintiffs in Title VII claims. 190 F.3d at 159.
However, our Supreme Court has stated: "Although [there is] . . . a need to
harmonize the LAD with Title VII in order to assure a reasonable degree of
symmetry and uniformity in the law, 'we have not hesitated to depart from the
[McDonnell Douglas] methodology if a rigid application of its standards is
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inappropriate under the circumstances.'" Bergen Com. Bank, 157 N.J. at 212
(quoting Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 107 (1990)).
As an intermediate appellate court, we lack the authority to overturn
Erickson. More importantly, Erickson was decided one year after Iadimarco,
and our Supreme Court implicitly elected not to adopt the Third Circuit's
approach in that case. We are bound by Erickson and its sound reasoning, which
has remained unaltered for over three decades. See Flizack v. Good News Home
for Women, Inc., 346 N.J. Super. 150, 158 (App. Div. 2001); Oakley v.
Wianecki, 345 N.J. Super. 194, 201-02 (App. Div. 2001). The rule in
Erickson—that discrimination against a member of the majority is unusual and
therefore requires consideration of the background circumstances to understand
whether the employer discriminates against Whites—is critical to discerning
whether there was discrimination here.
The record is devoid of evidence of minority employees making posts like
plaintiff's and not being terminated for the violation. Moreover, plaintiff failed
to show Integra was the unusual employer who targets members of the majority.
The only evidence she cites is Integra's African American Affinity Group
(IAAAG), which Tidwell headed, and a message released by Integra's Executive
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Leadership Team (ELT) on June 22, 2020, titled "ELT Reflections on
Juneteenth." In it, Integra stated:
The [ELT] met with members of the [IAAAG] last
Friday and used this forum to listen, learn and discuss
ways we can advance our culture of diversity and
inclusion. As we reflected upon our conversation, one
thing is clear: while we have made advancements in
diversity and inclusion, there is still a lot of work to be
done. . . . In the coming weeks, we will work closely
with the IAAAG to establish specific actions to address
the issues discussed.
Plaintiff notes Evoli signed the ELT statement.
None of this evidence established Integra discriminates against Whites.
Rather, these initiatives are in accord with the LAD, and demonstrate Integra
values diversity and promotes an inclusive work environment.
III.
Plaintiff argues summary judgment was improperly granted because there
were disputed issues of material fact, including whether: 1) she violated
Integra's social media policy; 2) Tidwell violated the same policy; 3) Integra
selectively enforced its policy based on plaintiff's race; 4) plaintiff and Tidwell
are "similarly situated comparators"; 5) Tidwell wanted plaintiff terminated and
"took the steps necessary to effect that termination"; and 6) Evoli "placated
the . . . cat's paw, . . . [i.e.;] Tidwell." Plaintiff also asserts the motion judge
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misapplied the summary judgment standard when he found no evidence of an
ongoing pattern of reverse discrimination because a single incident can qualify
as evidence of discrimination. She claims the judge impermissibly weighed the
evidence and failed to draw all reasonable inferences in her favor on these
points.
Plaintiff argues the evidence showed Integra treated her and Tidwell
disparately. She asserts she is similarly situated to Tidwell because she is also
a manager and subject to the same Integra social media policy. Yet Tidwell was
not terminated for using racially charged terms like "[W]hite privilege" and
"[W]hite fragility" in her Facebook post. Plaintiff also points to private text
messages between Tidwell and other Black employees that negatively
referenced plaintiff and her Facebook post as proof Integra is the unusual
employer who engages in reverse discrimination.
A.
We reject the argument that a singular incident of alleged discrimination
was enough to prove a discrimination claim. In Erickson, the Court denied a
male plaintiff's reverse sex discrimination claim, which was based on a "singular
incident of replacing" him with a female as "insufficient to demonstrate [the
company was] the unusual employer who discriminates against the majority."
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117 N.J. at 552. The Court held the plaintiff proffered "no evidence [his
employer] engaged in a pattern of sex discrimination that favored women over
men." Id. at 553.
None of the facts that plaintiff claims are in dispute would have thwarted
summary judgment in favor of Integra. Plaintiff and Tidwell were not similarly
situated. "A determination of whether employees are similarly situated takes
into account factors such as an employee's job responsibilities, the supervisors
and decision-makers, and the nature of the misconduct at issue." Wright v.
Providence Care Ctr., LLC, 822 F. App'x. 85, 92 (3d Cir. 2020). See also Peper
v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 84-45 (1978); Jason v. Showboat
Hotel & Casino, 329 N.J. Super. 295, 305 (App. Div. 2000). Tidwell and
plaintiff had different job titles and supervisors. They worked in different states.
Further, plaintiff engaged in misconduct, Tidwell did not. "To be deemed
similarly situated[,] the individuals with whom a plaintiff seeks to be compared
must have engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the employer's
treatment of them for it." Mosca v. Cole, 384 F. Supp. 2d 757, 766 (D.N.J.
2005) (quoting Bullock v. Child.'s Hosp., 71 F. Supp. 2d 482, 489 (E.D. Pa.
1999)).
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Plaintiff presented no evidence Tidwell's use of the terms "[W]hite
privilege" and "[W]hite fragility" were actionable and violated Integra's
workplace policies. She only offered her opinion that she viewed Tidwell's
comment as equally "inappropriate" as her own, and that Integra treated both
women differently. However, there were differentiating and mitigating factors
at play; plaintiff was under a PIP, and Tidwell had no disciplinary history.
Moreover, plaintiff's claim her post was not about race is belied by the
fact the statistics were broken down by race, and her post was made at a time of
national discussion about race and police violence. Therefore, plaintiff's
comments that "if you're home on the couch doing what you're supposed to be
doing you won't ever be one of those numbers" and "if you were on the right
side of the law" were inappropriate because they minimized the moment in an
insensitive manner as evidenced by the adverse reaction of several Black
employees. Tidwell's response expressed that plaintiff's statements were hurtful
and sought to initiate a discussion to explain why. Unlike plaintiff's statements,
no one, inside or outside of Integra, complained about Tidwell's comment.
Notwithstanding their dissimilarities, even if plaintiff and Tidwell had the
same disciplinary history, Integra was not obligated to treat their conduct in a
similar fashion. "Where two individuals have violated the conduct policy in
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different ways, an employer has the discretion to conclude that one was guilty
of a more serious infraction than the other, and to treat the cases accordingly."
Ewell v. NBA Props., 94 F. Supp. 3d 612, 627 (D.N.J. 2015). For these reasons,
we reject plaintiff's claims the judge was required to decide whether there was
a violation of Integra's social media policy and if the company selectively
enforced its policy.
B.
Plaintiff argues the motion judge erred when he dismissed the cat's paw
claim because Tidwell's comment on plaintiff's Facebook post and her private
communications showed Tidwell held discriminatory views, which then
influenced Evoli's decision to terminate plaintiff. She points to the fact Tidwell
sent Evoli an email titled "Action Required," which contained a breakdown of
and commentary on the Facebook post.
Tidwell's email said: "I wanted to make you aware of a situation that
occurred today, and I believe that action is needed. At 1:00AM this morning, I
was sent the following post by an Integra employee who used to work . . . for
the person who posted this on Facebook." She then provided screenshots of the
Facebook post and comments, and added:
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In response, I was told that this entire post was
deleted within [fifteen to thirty] minutes of my
comment.
At this point, I just feel that it is important that
[Black] colleagues at Integra and elsewhere feel
supported and safe by those in authority over our work
lives. Although not angry, this is deeply disturbing to
me, and I am hoping that you can let me know what[,]
if anything[,] can be done. Employees should not have
to fear that our leadership is tone deaf to this moment
and this movement.
Forgive me for the long email. Please let me
know if I can provide any other information. I fear that
if we let these microaggressions remain unchecked,
nothing will change. And what I know for sure is that
after what we have experienced in the last few weeks in
our country, nothing should stay the same.
"The cat's paw theory of liability applies to 'a situation in which a biased
subordinate, who lacks decisionmaking power, uses the formal decisionmaker
as a dupe in a deliberate scheme to trigger a discriminatory employment action.'"
Meade v. Twp. of Livingston, 249 N.J. 310, 334 (2021) (quoting Marshall v.
Rawlings Co., LLC, 854 F.3d 368, 377 (6th Cir. 2017). Liability exists under
this theory "only if a non-decisionmaker's [discriminatory] act proximately
caused the firing." Crosbie v. Highmark, Inc., 47 F.4th 140, 145 (3d Cir. 2022).
Proximate cause does not exist when the employer does not rely on the allegedly
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biased act in taking the ultimate adverse action. Jones v. SEPTA, 796 F.3d 323,
331 (3d Cir. 2015); see also Staub v. Proctor Hosp., 562 U.S. 411, 421 (2011).
Our de novo review of the record reveals no evidence of bias on Tidwell's
part. Rather, her email to Evoli attached plaintiff's postings and the comment
thread, and relayed the fact plaintiff's actions made Black employees feel unsafe.
Tidwell's private texts were revealed during discovery, and neither Esi nor Evoli
had them when they were conducting the investigation or when the decision to
terminate plaintiff was made. Esi and Evoli investigated the case based on the
objective evidence and Evoli made the termination decision based on the
investigation. The cat's paw theory did not apply here.
IV.
Plaintiff argues the decision to terminate her was merely a pretext for the
reverse discrimination because Evoli conducted a "sham investigation" that did
not comport with Integra's investigation policies. She asserts the pretext was
evidenced by the fact her termination was unprecedented, she received a good
final performance review, and Integra's social media policy did not require
termination in the event of a violation.
We do not reach this argument because plaintiff failed to establish a prima
facie case of discrimination to trigger the burden shifting analysis and
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consideration of pretext under McDonnell Douglas. See Crisitello v. St. Theresa
Sch., 255 N.J. 200, 231 (2023) (Pierre-Louis, J., concurring) (stating the burden
shifting begins "[o]nce a prima facie case of discrimination is established").
V.
Plaintiff urges us to abrogate our holding in McVey v. AtlantiCare
Medical System Inc., claiming it is internally inconsistent because we held state
action was required to assert a claim for wrongful discharge based on a violation
of the First Amendment right to free speech yet held "constitutional rights can
be enforced against private entities." 472 N.J. Super. 278, 288 n.5 (App. Div.
2022). She further asserts McVey "failed to substantively distinguish between
the Fourth Amendment privacy rights implicated within the Hennessey[3]
opinion with the First Amendment freedom of speech rights before it" and
ignored that Hennessey held a Pierce claim could be sustained under the New
Jersey Constitution's free speech provision.
Our Supreme Court has held that wrongful discharge cases "must balance
the interests of the employee, the employer, and the public." Pierce, 84 N.J. at
71. "Employees have an interest in knowing they will not be discharged for
exercising their legal rights," while "[e]mployers have an interest in knowing
3
Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992).
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they can run their businesses as they see fit as long as their conduct is consistent
with public policy," and "[t]he public has an interest in employment stability
and in discouraging frivolous lawsuits by dissatisfied employees." Ibid.Our courts are "mindful that judicial intervention in the private
employment context has a limited purpose. Anti-discrimination laws do not
permit courts to make personnel decisions for employers. They simply require
that an employer's personnel decisions be based on criteria other than those
proscribed by law." Peper, 77 N.J. at 87.
In McVey, the plaintiff was terminated by an employer who operated a
private hospital and health system for posting on Facebook "that she found the
phrase 'Black Lives Matter' to be 'racist,' believed the Black Lives Matter
movement 'causes segregation,' and asserted that Black citizens were 'killing
themselves.'" 472 N.J. Super. at 281. The trial court dismissed McVey's
complaint for wrongful discharge because the First Amendment and Article I,
Paragraph 6 of the New Jersey Constitution did not bar a private employer from
terminating her. Id. at 281-82.
On appeal, McVey acknowledged she did not have an absolute
constitutional right to free speech in a private employment setting under
Hennessey. Id. at 288. Her free speech rights, however, outweighed her
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employer's right "to promote an inclusive, non-divisive environment for its
clients and employees." Ibid.
We affirmed and rejected McVey's argument that she had the
constitutional right to make her remarks under the United States Constitution.
Ibid. We held "constitutional rights can be violated only if there is state action"
and in McVey's case there was no state action because she worked for a private
employer. Id. at 288-89. We did not need to distinguish between the First
Amendment right raised by McVey and the Fourth Amendment right in
Hennessey, because Hennessey did not turn on the Fourth Amendment. 129 N.J.
at 95. Indeed, Hennessey held the Fourth Amendment is not implicated where
there is no state action. Ibid.Instead, Hennessey addressed and rejected a Pierce claim based on the
right to privacy under the New Jersey Constitution. Ibid. The Court held a
private employer did not violate an employee's constitutional right to privacy by
mandating random urine screens for drugs and was not liable for wrongful
discharge by subsequently terminating the employee where the employee failed
the drug screen. Id. at 94-96, 107. This was because the employee worked and
supervised others at an oil refinery, and public safety in the operation of the
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refinery outweighed his right to privacy under the New Jersey Constitution. Id.
at 104-07.
We likewise rejected McVey's Pierce argument, noting Hennessey held
"more is needed than simply the breach of public policy affecting a single
person's rights to constitute the breach of a 'clear mandate' of public policy that
Pierce requires." McVey, 472 N.J. Super. at 287 (quoting Hennessey 129 N.J.
at 99). Further, we noted although Hennessey found the New Jersey
Constitution "'may' constitute public policy, it did not do so in that case." Ibid.We found "[n]o New Jersey court has held that a private entity that encroaches
upon a private individual's constitutional rights to free speech has violated a
clear mandate of public policy within the intendment of the Pierce and
Hennessey paradigm." Id. at 289. "[T]he majority of courts . . . in other
jurisdictions have precluded a private employee's Pierce claim based on a private
employer's alleged infringement of free speech." Ibid.
McVey's free speech rights did not outweigh her employer's business
interests because her racist remarks were not protected speech within the context
in which they were made. Id. at 290. We found even if her remarks were
adjudged under a lower standard and considered "to be merely insensitive, we
would still hold under Hennessey that [her employer] properly terminated her
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employment" because McVey's "interest in publicly posting her remarks was
minimal." Ibid. Rather than posting her remarks privately, she did so publicly
and "prominently identified" her title and employer. Ibid. McVey was aware
of her employer's social media policy, which prohibited comments like the ones
she posted and yet she "posted her remarks at the height of the [George] Floyd
protest[s]" exposing her employer "to the possibility of unwanted and adverse
publicity and criticism." Id. at 291. Under the circumstances, McVey's "slight
interest in publicly making her position on the Black Lives Matter movement
known" did not outweigh her employer's "strong interest in protecting and
fostering" diversity or show the employer "violate[d] a clear mandate of public
policy when it terminated McVey's employment." Ibid.
The facts here are quite similar. Even if we considered plaintiff's postings
to be "merely insensitive," she made these remarks publicly and doubled down
on them, notwithstanding Integra's social media policy. Plaintiff was identified
as a member of Integra, and like McVey, her comments occurred at a time of
national racial strife. Her comments brought that strife into Integra's work
environment, undermining its diversity and inclusion practices and exposed
Integra to possible unwanted public criticism. In these circumstances, plaintiff's
posting and statements were neither constructive nor had a valid business
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purpose. Therefore, her "slight" interest in free speech did not outweigh
Integra's strong interest in ensuring a productive and inclusive work
environment and the ability to assure partners, clients, and the public it did not
share or endorse plaintiff's views. Thus, even if the motion judge had reached
the Pierce claim, it would not survive summary judgment.
Finally, as regards the right to free speech under the United States
Constitution, McVey was not internally inconsistent because we noted the
limited exceptions to state action where constitutional rights could be enforced
against private entities involved "political expressions at privately-owned-and-
operated shopping malls and defamation." Id. at 288 n.5 (citation omitted)
(quoting Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 265 (1998)).
Those exceptions did not apply in McVey's case, and they do not apply here.
Affirmed.
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