Gloria Flores v. Jeanette Page-Hawkins ( 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NOT FOR PUBLICATION WITHOUT THE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-2333-22
GLORIA FLORES,
Plaintiff-Appellant,
v.
JEANETTE PAGE-HAWKINS,
ROBERT D. JACKSON, ESSEX
COUNTY, ESSEX COUNTY
CITIZEN SERVICES/WELFARE
DEPARTMENT,
Defendants-Respondents,
and
CHERYL CUCCINELLO,
Defendant.
____________________________
Submitted March 20, 2024 – Decided April 30, 2024
Before Judges Currier and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-8167-19.
Cecile D. Portilla, Attorney at Law, LLC, attorneys for
appellant (Eldridge T. Hawkins and Cecile Delrose
Portilla, on the briefs).
Jerome M. St. John, Essex County Counsel, attorney for
respondents (Olivia Palamara, Assistant County
Counsel, and DaQuan Edward Brown, Assistant
County Counsel, on the brief).
PER CURIAM
Plaintiff Gloria Flores appeals the trial court's March 17, 2023 denial of
her motion for reconsideration of the February 7, 2023 order granting summary
judgment to defendants Jeanette Page-Hawkins, Robert D. Jackson, Essex
County and Essex County Citizen Service/Welfare Department 1 dismissing
plaintiff's claims for disability discrimination, hostile work environment, and
constructive discharge in connection with her County employment under the
New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, and
denying plaintiff's cross-motion for summary judgment. Because we see no
error with the trial court's determination that plaintiff has not established a prima
facie case as to any of her LAD-based claims, we affirm.
1
Defendants Jeanette Page-Hawkins, Robert D. Jackson, Essex County and
Essex County Citizen Service/Welfare Department are collectively referred to
as "defendants." Essex County and the Essex County Citizen Service/Welfare
Department are collectively referred to as "the County."
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I.
In reviewing whether summary judgment was improvidently granted, we
view the facts set forth in the record in the light most favorable to non-movants.
Harz v. Borough of Spring Lake, 234 N.J. 317, 329 (2018). In doing so, we give
non-movants "the benefit of the most favorable evidence and most favorable
inferences drawn from that evidence." Gormley v. Wood-El, 218 N.J. 72, 86
(2014); see also R. 4:46-2(c). We summarize the salient facts in the record under
this lens.
Plaintiff was hired by the County in May 1990 as a bilingual clerk typist
and was promoted to a bilingual secretarial assistant position in 2002, where she
remained until 2016. On April 26, 2016, the County eliminated the title of
bilingual secretarial assistant and plaintiff was laterally transferred to the title
of records support technician 4, with no change in salary.
As required by the State of New Jersey, Civil Service Commission (CSC),
plaintiff completed an application for permanent appointment to the records
support technician 4 position to effectuate the transfer.
On August 7, 2017, the CSC sent a letter to the County notifying it that
plaintiff had failed the qualifying examination for the position due to lack of
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experience. The County took no further action in response to the letter and did
not notify plaintiff at that time.
On December 10, 2018, plaintiff inquired with the County about possible
retirement and to "see what her pension numbers were like." On December 19,
2018, the CSC again sent the County a letter requiring plaintiff's removal from
the records support technician 4 position and return to her prior permanent title
or another more suitable title. Plaintiff was still not informed at this point about
the communication from the CSC.
On January 31, 2019, Page-Hawkins retired, and Kecia Burnett became
the new director of the County's Division of Family Assistance & Benefits
(DFAB). On February 8, 2019, the CSC sent another letter to the County, this
time to Burnett, again reiterating that plaintiff must be removed from the records
support technician 4 position.
On February 14, 2019, the County's Records Management Department
(RMD) adopted a new case records management (CRM) system to address the
over 16,000 cases in backlog. To address the backlog, the RMD increased the
number of employees plaintiff supervised from fourteen to twenty-seven on
March 18, 2019. Two additional employees, Kareemah Lucas and Valentina
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Green, were assigned to the RMD to serve as consultants in order to facilitate
the transition of the CRM system.
On April 1, 2019, Burnett met with plaintiff, who was accompanied by the
Public Employee Supervisors' Union (PESU) President Lisa Maddox Douglas.
Burnett explained that she "received a memo from human resources stating
[plaintiff] did not pass the [qualifying exam] and . . . needed to find her another
title maintaining her salary or return her to her last permanent title." During the
meeting, Burnett and plaintiff discussed transferring her to another department
because "she seemed overwhelmed and over the past few weeks she ha[d] been
crying." Plaintiff and Maddox Douglas asked if plaintiff could submit a
proposal to correct any deficiencies with her work, to which Burnett agreed.
After that date, it was discovered that 21,000 records in the RMD had not had
file location updates since February 15, 2019.
On May 17, 2019, Maddox Douglas sent a letter to Burnett stating:
Our Union submits this Step II Contractual
Grievance on behalf of [plaintiff], [r]ecords [s]upport
[t]echnician 4 to protest the unfair and disparate manner
in which you continuously and unfairly subjected our
member. Since your appointment as Division Head
[plaintiff] was assigned an unprecedented total of
[twenty-seven] clerical employees to report to her. The
mere number of employees assigned [to] our member is
unconscionable and violates multiple contractual
articles. Despite multiple conversations and pleas to
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promote an additional Clerk 4 to assist, you rejected
such . . . .
....
As remediation our union respectfully demands the
following:
....
• Immediately promote an additional Clerk 4 to assist
with supervisory roles and responsibilities within the
[RMD].
On June 6, 2019, plaintiff sent an email to Inspector General Dominic
Scaglione alleging a "[h]ostile [w]ork [e]nvironment." The email stated,
I am writing to advise that the working environment in
which I am subjected to, has jeopardized my safety
within the workplace.
I am consistently harassed and intimidated by several
employees within my worksite . . . . The employees in
which I would like to identify are Ms. Burnett, Acting
Division Head and her direct reports Valentina Green;
. . . and Kareemah Lucas, . . . who have consistently
utilized intimidation tactics and the like to create an
atmosphere which is emotionally hazardous.
The intimidation tactics in which they have engaged
include those which have caused emotional
consequences as they have consistently engaged in
humiliation, intimidation, bullying and angry outbursts
in the presence of multiple employees.
I have worked directly with several [d]irectors over my
[twenty-nine-]year tenure and never experienced such
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torturous actions. As a result, my health is suffering
adversely and I have become withdrawn. . . .
On June 17, 2019, Burnett complied with Maddox Douglas' demand and reduced
the additional employees that were assigned to plaintiff to ten.
On June 25, 2019, Scaglione and internal investigators Brian Dyer and
Casey McMahon interviewed plaintiff regarding her hostile work environment
complaint in the presence of Maddox Douglas. During the interview, plaintiff
stated she filed a grievance on April 5, 2019, regarding unfair treatment and
retaliatory actions prohibited under the Americans with Disabilities Act (ADA).
However, plaintiff did not provide a copy of the grievance to the investigators,
to the trial court or to us on appeal. Plaintiff stated she believed that Burnett
was treating her differently because she went to the County Hall of Records in
December 2018 to inquire about retirement. Plaintiff discussed various
incidents where she felt she was belittled and bullied by Green and Lucas.
Beginning in July of 2019, investigators from the Office of Inspector
General conducted interviews with several DFAB employees to investigate
plaintiff's harassment complaint including Nancy Gervickas, Brenda
Williamson, Janet Bifalco, Green, Lucas, Rosemary Patrick, and Al Fusco.
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Plaintiff took a series of leaves of absence beginning July 31, 2019,
through January 31, 2020. Plaintiff also submitted documents in furtherance of
her retirement. On September 24, 2019, the County's chief financial officer
transmitted plaintiff's salary certification to her and confirmed she would be
removed from the payroll system as of her chosen retirement date of February
1, 2020.
On October 9, 2019, Scaglione interviewed Burnett regarding plaintiff's
workplace harassment complaint. Burnett advised that she was unaware that
plaintiff had taken any action to apply for retirement benefits at the time plaintiff
filed her harassment complaint. In response to plaintiff's request for additional
help in the RMD, Burnett added several clerical workers to assist with the
backlog and with the transition of the new CRM system. Those additional
workers included Lucas and Green.
Burnett advised Scaglione that plaintiff complained to her directly that
she was being "harassed, bullied, and humiliated" by Lucas. Burnett stated she
could tell Lucas had issues with plaintiff and instructed Lucas to have no further
contact with plaintiff, with any future communication going through Green.
Burnett arranged for "communications training" within the agency as a result of
the situation between Lucas and plaintiff. Burnett directed plaintiff to contact
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her by email instead of coming directly to her office because plaintiff was
"constantly changing what she was saying" to her and she "wanted to establish
a paper trail."
On September 30, 2019, Burnett learned plaintiff had been admitted to the
hospital for an anxiety attack after receiving an email from someone working on
the tenth floor at the DFAB office. Burnett did not know who sent the email but
stated she did not believe it came from Lucas, as Lucas was assigned to the ninth
floor of the office.
On October 28, 2019, following an investigatory interview with Lucas,
Scaglione issued a memorandum with his findings. Scaglione determined "there
exists sufficient corroboration from the testimony of witnesses to support a
finding of conduct unbecoming a [C]ounty employee on the part of . . . Lucas in
her interaction with [plaintiff] . . . . Lucas was determined to be rude, dismissive
and hostile in her association with [plaintiff]." The findings were "presented to
the Director of Department of Citizen Services[] for whatever action [was]
deemed appropriate." No other co-worker was found to have acted improperly
towards plaintiff.
On November 4, 2019, plaintiff filed a complaint in the Law Division,
followed by an amended complaint. On October 6, 2020, plaintiff then filed a
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five-count corrected amended complaint alleging: the County violated the LAD
by failing to accommodate her under the ADA (count one); breach of contract
and breach of implied covenant of good faith and fair dealing, interference with
plaintiff's beneficial economic position (count two); misuse and abuse of process
(count three); violations of the New Jersey Civil Rights Act under N.J.S.A 10:6-
2(c) (count four); and defendants recklessly, intentionally, maliciously, inflicted
severe emotional distress on plaintiff with a wanton and reckless disregard to
the consequences causing plaintiff to be constructively discharged (count five).
On February 1, 2020, plaintiff retired from employment with the County.
There is no evidence in the record that plaintiff submitted any request for a
disability accommodation while employed. In her answers to interrogatories,
plaintiff identified her disabilities as "anxiety, panic attacks, depression" and
"stress."
On February 7, 2023, the trial court granted defendants' motion for
summary judgment dismissing plaintiff's corrected amended complaint and
denied plaintiff's motion for summary judgment in an order accompanied by a
written decision. The trial court rejected plaintiff's argument that defendants'
motion was based on an improper certification of counsel that violated Rule
1:6-6. The trial court also rejected plaintiff's argument that summary judgment
A-2333-22
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could not be granted in favor of defendants because the County did not have
publicized policies prohibiting the complained-of conduct, since the County's
policy documents were in the summary judgment record.
The trial court also found that the only time plaintiff identified her alleged
disabilities was in answers to defendants' interrogatories. The court
acknowledged defendants were aware plaintiff was "having some issues with
stress or anxiety," but concluded there was nothing in the record establishing
plaintiff submitted a clear request for an accommodation of a disability within
the standard set forth in Tynan v. Vicinage 13 of the Superior Court of New
Jersey, 351 N.J. Super 385, 400 (App. Div. 2002).
Additionally, the trial court found there was no threat of discharge nor
was plaintiff ever encouraged to retire early. The trial court noted plaintiff never
requested to transfer out of the RMD, and most significantly, plaintiff inquired
about retirement on December 10, 2018, prior to the events that she claimed
forced her retirement.
Plaintiff filed a motion for reconsideration on February 27, 2023. In the
certification in support of the motion for reconsideration, plaintiff's counsel sets
forth that the trial judge should recuse herself because of an alleged bias related
to a prior unrelated litigation and an alleged improper deficiency notice filed
A-2333-22
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against plaintiff's counsel. The trial court denied the motion for reconsideration.
On the issue of recusal, the trial judge found that plaintiff failed to present any
evidence to show impartiality on behalf of the judge against plaintiff. This
appeal follows.
II.
On appeal, plaintiff argues the trial court erred in finding that she had not
established her LAD claim for failure to accommodate a disability because she
did not show proof of a disability or evidence of a clear request to be
accommodated for any documented disability. Further, plaintiff asserts the trial
court erroneously rejected her hostile work environment and constructive
discharge claims.2 Plaintiff additionally alleges the trial judge hearing the
summary judgment motions erred in failing to recuse herself because she gave
the appearance of bias and abused her discretion.
We review a trial judge's decision to grant or deny a motion for rehearing
or reconsideration under Rule 4:49-2 for an abuse of discretion. Branch v.
Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). "'Reconsideration is a matter
2
Plaintiff does not address the dismissal of the claims for breach of contract,
breach of the covenant of good faith and fair dealing and abuse of process on
appeal. Thus, we do not review the trial court's order granting summary
judgment on those causes of action.
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within the sound discretion of the [c]ourt, to be exercised in the interest of
justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Reconsideration is appropriate where "'1) the [c]ourt has expressed its decision
based upon a palpably incorrect or irrational basis, or 2) it is obvious that the
[c]ourt either did not consider, or failed to appreciate the significance of
probative, competent evidence.'" Ibid. (quoting D'Atria, 242 N.J. Super. at
401-02). Reconsideration is not appropriate where a litigant is unhappy with the
trial court's decision and wishes to reargue a motion. Dennehy v. E. Windsor
Reg'l Bd. of Educ., 469 N.J. Super. 357, 362-63 (App. Div. 2021) (quoting
Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010)), aff'd, 252 N.J.
201 (2022).
We review a grant of summary judgment "de novo, applying the same
standard as the trial court." L.A. v. N.J. Div. of Youth & Fam. Servs., 217 N.J.
311, 323 (2014) (citing Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491
(2005)). Summary judgment must be granted "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 a nd
that the moving party is entitled to a judgment or order as a matter of law." R.
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4:46-2(c). "To decide whether a genuine issue of material fact exists, the trial
court must 'draw[] all legitimate inferences from the facts in favor of the non -
moving party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in
original) (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)).
III.
At the outset, we address plaintiff's claim that the trial court judge hearing
the summary judgment motions should have recused herself from this matter
because of her bias towards plaintiff. Specifically, plaintiff contends the judge's
bias stems from a prior unrelated case plaintiff's counsel argued before her, and
an allegedly improper electronic deficiency notice filed against plaintiff's
counsel in separate, unrelated litigation.
Disqualification of a judge is warranted for the reasons specified in Rule
1:12-1, including "when there is any other reason which might preclude a fair
and unbiased hearing and judgment, or which might reasonably lead counsel or
the parties to believe so." R. 1:12-1(g). To that end, Rule 1:12-2 states that
"[a]ny party, on motion made to the judge before trial or argument and stating
the reasons therefore, may seek that judge's disqualification." When reviewing
the appearance of impropriety, the Court has adopted the test in DeNike v. Cupo,
which requires a determination as to whether "a reasonable, fully informed
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person [would] have doubts about the judge's impartiality." 196 N.J. 502, 517
(2008).
We find no merit to plaintiff's contention that the judge demonstrated bias
against her. Plaintiff did not present any evidence to establish that the allegedly
improper deficiency notice posted on eCourts in a previous, unrelated case heard
before the judge where one of the parties was represented by plaintiff's counsel,
was intentional rather than an error. Plaintiff also failed to present evidence that
the judge was impartial in her ruling because of her alleged relation to a former
colleague of plaintiff's counsel. Our review of the record confirms the judge
hearing the motions did not err in declining to recuse herself on this matter.
We decline to consider plaintiff's newly asserted argument that Rules
1:12-1 and -2 violate the due process rights under the New Jersey and United
States Constitutions by allowing the trial judge to rule on her own motion for
recusal. Plaintiff did not raise this issue below. "Generally, issues not raised
[before the trial court], even constitutional issues, will not ordinarily be
considered on appeal unless they are jurisdictional in nature or substantially
implicate public interest." Paff v. Ocean Cnty. Prosecutor's Off., 446 N.J. Super.
163, 190 (App. Div. 2016) (alteration in original) (quoting State v. Walker, 385
N.J. Super. 388, 410 (App. Div. 2006)), rev'd on other grounds, 235 N.J.1
A-2333-22
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(2018). Plaintiff's argument does not meet this heightened standard. Therefore,
no further discussion is warranted on this issue.
IV.
Next, we turn to our review of the trial court's grant of summary judgment
as to plaintiff's failure to accommodate, hostile work environment, and
constructive discharge claims under the LAD. Under the LAD, an employee
who has a disability is a member of a protected class. N.J.S.A. 10:5-12.
Disability is defined under N.J.S.A. 10:5-5(q).
Pursuant to N.J.S.A. 10:5-5(q), there are two
specific categories of handicap: physical and non-
physical. The physical and non-physical clauses of the
statute are distinct from each other and provide separate
ways of proving handicap.
To meet the physical standard, a plaintiff must
prove that he or she is (1) suffering from physical
disability, infirmity, malformation or disfigurement (2)
which is caused by bodily injury, birth defect or illness
including epilepsy. . . . To meet the non-physical
standard, a plaintiff must prove that he or she is
suffering (1) from any mental, psychological or
developmental disability (2) resulting from an
anatomical, psychological, physiological or
neurological condition that either (a) prevents the
normal exercise of any bodily or mental functions or (b)
is demonstrable, medically or psychologically, by
accepted clinical or laboratory diagnostic techniques.
....
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Where the existence of a handicap is not readily
apparent, expert medical evidence is required.
Accordingly, courts place a high premium on the use
and strength of objective medical testimony in proving
the specific elements of each test contained in the
statute.
[Viscik v. Fowler Equip. Co., 173 N.J. 1, 15-16 (2002)
(italicization omitted) (citations omitted).]
"Discrimination based on an employee's disability, or
perceived disability, is illegal under the LAD." Guzman v. M. Teixeira Int'l,
Inc., 476 N.J. Super. 64, 70 (App. Div. 2023).
We broadly construe and apply the protections of the LAD to allow for
the greatest available antidiscrimination impact. Richter v. Oakland Bd. of
Educ., 246 N.J. 507, 537 (2021). "The LAD's worthy purpose is no less than
eradication of '"the cancer of discrimination" in our society.'" Ibid. (quoting
Smith v. Millville Rescue Squad, 225 N.J. 373, 390 (2016) (quoting Nini v.
Mercer Cnty. Cmty. Coll., 202 N.J. 98, 115 (2010))). In a discrimination claim
under the LAD, it is the plaintiff who bears the burden to establish a prima facie
case. Victor v. State, 203 N.J. 383, 408 (2010).
Given that claims under the LAD are to be interpreted broadly and the
standard for summary judgment requires facts to be viewed in the light most
favorable to the non-moving party, the trial court's task is not to determine the
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strength of the case, but rather if plaintiff's "allegations, if true, can establish
that defendant[] violated the LAD." Beneduci v. Graham Curtin, P.A., 476 N.J.
Super. 73, 81-82 (App. Div. 2023).
Rather than considering each incident in isolation,
courts must consider the cumulative effect of the
various incidents, bearing in mind "that each successive
episode has its predecessors, that the impact of the
separate incidents may accumulate, and that the work
environment created may exceed the sum of the
individual episodes."
[Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 607 (1993)
(quoting Burns v. McGregor Elec. Indus., Inc., 955
F.2d 559, 564 (8th Cir. 1992)). ]
A. Failure to accommodate under the LAD.
Under the LAD, a plaintiff has a cause of action for failure to
accommodate a disability when they prove that: (1) they qualify as having a
disability or perceived disability, (2) they were performing the functions of their
job, and (3) defendant failed to accommodate plaintiff's disability. Victor, 203
N.J. at 410. "It is not necessary that requests for reasonable accommodations be
in writing or even use the phrase 'reasonable accommodation.'" Tynan, 351 N.J.
Super. at 400 (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d
Cir. 1999)). "While there are no magic words to seek an accommodation, the
employee, however, '"must make clear that . . . assistance [is desired] for his or
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her disability."'" Ibid. (quoting Jones v. United Parcel Serv., 214 F.3d 402, 408
(3d. Cir. 2000)). "An employee may use plain English and need not mention the
ADA or any other legal source requiring accommodation." Ibid. (citing Taylor,
184 F.3d at 313). Tynan sets forth the following four-part test that an employee
must establish in order to prevail on a failure to accommodate claim:
(1) the employer knew about the employee's
disability; (2) the employee requested accommodations
or assistance for her disability; (3) the employer did not
make a good faith effort to assist the employee in
seeking accommodations; and (4) the employee could
have been reasonably accommodated but for the
employer's lack of good faith.
[Id. at 400-01.]
Plaintiff argues that she established a prima facie case of discrimination
for failure to accommodate under the LAD by making the County aware of her
disability through medical information transmitted during the course of her
employment. We are unconvinced that plaintiff has met the Tynan standard.
The trial court did not err in finding that plaintiff did not submit any
request for accommodation of a disability to her employer. Even if plaintiff
mentioned in an email her health was "suffering," there is no evidence in the
record she made any request for a disability accommodation. Any request for
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leaves of absences that plaintiff submitted were granted. Therefore, we
conclude the trial court did not err in finding the plaintiff did not establish a
prima facie case of failure to accommodate a disability under LAD.
B. Hostile work environment under the LAD.
To establish a hostile work environment under LAD, plaintiff must prove
"(1) that plaintiff is in a protected class; (2) that plaintiff was subjected to
conduct that would not have occurred but for that protected status; and (3) that
it was severe or pervasive enough to alter the conditions of employment."
Victor, 203 N.J. at 409 (citing Lehmann, 132 N.J. at 603-04).
Plaintiff argues that Scaglione's report affirms her claim of a hostile work
environment. Scaglione found that Lucas was "rude, dismissive, and hostile in
her association with [plaintiff.]" Plaintiff alleges the hostility was related to
plaintiff's disability because Burnett wanted to transfer her since she was
"overwhelmed and . . . crying" all the time.
The trial court found that even assuming plaintiff's anxiety was a LAD-
protected disability, she did not establish that the conduct would not have
occurred but for any medically-established disability. The trial court found that
plaintiff supported her claim using the effects it had on her, rather than the
conduct itself, which is insufficient under Lehmann. The trial court found that
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plaintiff was unable to connect the conduct of Lucas to her protected status nor
that the conduct was severe enough to alter the conditions of plaintiff's
employment.
We find no error in the trial court's ruling. There are no proofs in the
record establishing that any conduct was taken because of any alleged disability.
While Scaglione's investigative report found plaintiff was subject to rude and
dismissive behavior from Lucas, there was no evidence proffered Lucas' conduct
was undertaken because of plaintiff's disability and the conduct was not
pervasive or severe enough to alter the conditions of plaintiff's employment.
C. Constructive discharge under the LAD.
"[C]onstructive discharge under the LAD occurs when an '"employer
knowingly permit[s] conditions of discrimination in employment so intolerable
that a reasonable person subject to them would resign."'" Shepherd v. Hunterdon
Dev. Ctr., 174 N.J. 1, 27 (2002) (alteration in original) (quoting Muench v. Twp.
of Haddon, 255 N.J. Super. 288, 302 (App. Div. 1992)). Constructive discharge
requires more than the severe or pervasive conduct required to establish a hostile
work environment. Ibid. "[T]he standard envisions a 'sense of outrageous,
coercive and unconscionable requirements.'" Id. at 28 (quoting Jones v.
Aluminum Shapes, Inc., 339 N.J. Super. 412, 428 (App. Div. 2001)).
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A constructive discharge analysis requires the court to "consider 'the
nature of the harassment, the closeness of the working relationship between the
harasser and the victim, whether the employee resorted to internal grievance
procedures, the responsiveness of the employer to the employee's complaints,
and all other relevant circumstances." Ibid. (quoting Shepherd v. Hunterdon
Dev. Ctr., 336 N.J. Super. 395, 420 (App. Div. 2001)). "'[A]n employee has the
obligation to do what is necessary and reasonable in order to remain employed
rather than simply quit.'" Ibid. (quoting Shepherd, 336 N.J. Super. at 420).
Plaintiff claims that when Burnett became the new division head in 2019,
she sought to demote plaintiff because she had animus towards her, which
ultimately led plaintiff to retire early. Plaintiff also claims that her failure to
qualify for the records management title was a pretext for discrimination against
her evidenced by Burnett recommending her demotion and transfer to another
floor.
The undisputed facts in the record establish plaintiff complained directly
to Burnett that she felt she was being harassed, bullied, and humiliated by Lucas.
Burnett met with Lucas and advised her that she was to not have any contact
with plaintiff. Burnett also arranged communications training following
plaintiff's complaint.
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The trial court did not err in concluding that plaintiff did not establish a
prima facie case of constructive discharge under the LAD. Plaintiff provides no
evidence that any of Burnett's actions were taken because of an alleged
disability. The undisputed facts in the record establish the CSC directed Burnett
to move plaintiff to a title she was qualified for. When given the opportunity to
fill a position she was qualified for, plaintiff asked Burnett if she could remain
in the RMD. The undisputed facts establish Burnett acted appropriately in
responding to plaintiff's complaint.
Plaintiff also inquired about retirement prior to the events that led to her
complaint. A claim of constructive discharge fails where evidence shows that
plaintiff had contemplated retirement prior to the events that allegedly forced
retirement. See Kirschling v. Atl. City Bd. of Educ., 10 F.Supp.3d 587, 601
(D.N.J. 2014). In reviewing all of the relevant circumstances, we are
unconvinced that plaintiff established a prima facie case of constructive
discharge.
V.
Plaintiff proffers a multitude of other arguments regarding the inadequacy
of defendants' proofs on summary judgment, which the trial court rejected. We
are unconvinced the trial court erred and conclude that defendants submitted
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appropriate proofs which were considered as part of the summary judgment
record. We briefly address plaintiff's contentions.
Plaintiff posited that defendants have not produced any facts or affidavits
based on personal knowledge pursuant to Rule 1:6-6 in support of summary
judgment; defendants improperly cite to plaintiff's complaint for their statement
of material facts; defendants' affidavit was signed by their lawyer in violation
of Murray v. Allstate Ins. Co., 209 N.J. Super. 163 (App. Div. 1986), appeal
dismissed, 110 N.J. 293 (1988); and alleged unauthenticated documents
produced by defendants are inadmissible under N.J.R.E. 803(b)(4) and should
not have been considered as part of the record on summary judgment.
The trial court did not err in concluding Murray does not require the court
to disregard the documents identified by defendants' counsel in their
certification because there are no facts set forth characterizing them or
interpreting them. We also conclude Rule 803(b)(4) was also not violated since
plaintiff has presented no legal authority supporting the argument that
defendants are barred from introducing the alleged unauthenticated documents,
while plaintiff simultaneously relies on them for its position on summary
judgment.
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VI.
We decline to further consider plaintiff's argument that the trial court did
not comply with Rule 1:7-4 by failing to provide a statement of reasons for the
entry of the summary judgment orders because this assertion is belied by the
extensive written decision issued by the trial court on summary judgment and
the oral statement of reasons supporting the denial of reconsideration.
To the extent we have not addressed any arguments raised by plaintiff,
they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-2333-22
25