Opinion
Civ. No. 99-405 (DRD)
April 9, 2001
Beverly A. Plutnick, Esq., Feldman Plutnick, Somerville, New Jersey, for Plaintiffs.
Gloria B. Cherry, Esq., Braff, Harris Sukoneck, Livingston, New Jersey, for Defendants.
OPINION
Plaintiffs Christine Buncek and her husband Henry filed a complaint on January 28, 1999, against the State Operated School District of Jersey City, John Pacifico, and Charles Brown, in which Mrs. Buncek alleged that in retaliation for her filing a worker's compensation claim, she was "harassed, criticized, and constantly told that she was not performing adequately," thus developing a systematic, deliberate pattern to single out, "harass, belittle and disparage" her and forcing plaintiff to take an early retirement. Plaintiffs alleged that defendants' behavior violated Mrs. Buncek's civil rights under 42 U.S.C. § 1983 by depriving her of liberty and property without due process, constituted breach of contract and the covenant of good faith and fair dealing, inflicted severe emotional distress, and caused loss of consortium to Mr. Buncek. An amended complaint was filed, withdrawing Mr. Buncek's claim for loss of consortium. Defendants moved for summary judgment. For the reasons set forth below, defendants' motion is granted.
FACTS
Plaintiff is fifty-one years old. She was employed by the Jersey City School District from September 1, 1971, until July 1, 1997. Until 1993, plaintiff was employed, as a tenured teacher, at School 25. In the Fall of 1994, plaintiff requested, and received, a transfer to another school in the district. She was assigned to School 30, where Charles Brown was the principal. Plaintiff taught at School 30 for the 1994-95 and 1995-96 school years. Plaintiff retired on July 1, 1997 and received a full pension.
Plaintiff first received treatment for anxiety and depression in 1985 following the death of her father. She was also being treated for irritable bowel syndrome and post-traumatic stress. In 1989-90, plaintiff experienced heart palpitations and panic attacks. She sought treatment by a psychologist, Dr. Barbara Byrd, for problems relating to stress from her marriage. Plaintiff received a prescription for Xanax and was diagnosed with generalized anxiety disorder and depression.
In March 1993, plaintiff again sought treatment from Dr. Byrd at the request of her internist because she was overwhelmed by her medical problems. Plaintiff was hospitalized for gynecological problems and was on a leave of absence from school, extending from February 1993 until the remainder of the semester. Records indicate that plaintiff was barely functioning, was experiencing free-floating anxiety, difficulty concentrating, disturbed sleep and muscle tension. Plaintiff began treatment with a psychiatrist, Dr. Jacob Jacoby, who prescribed Prozac in addition to Xanax.
In September 1993, plaintiff and Dr. Byrd believed that her condition had stabilized and that she was ready to return to work. Plaintiff presented the principal of School 25, Anne Butler, with a "doctor's note" from Dr. Byrd excusing plaintiff from the faculty meeting scheduled for the day before the first day of school. The note stated that plaintiff could not attend the meeting due to her claustrophobia and anxiety. Butler stated, "This is a whole new ballgame" and "who do you think you are?" Butler excused plaintiff from attending the faculty meeting, and plaintiff left school at 10:30 a.m. Butler wrote a memorandum to Judi Granick of the Human Resources department, enclosing Dr. Byrd's note and questioning whether plaintiff was ready to return to work. Butler requested that plaintiff be examined to assess whether she was prepared to return to work.
On September 21, 1993, plaintiff was examined by a psychiatrist, Dr. Gabriel Kaplan. Dr. Kaplan diagnosed plaintiff with a panic disorder, stated that she was receiving effective treatment (psychotherapy and medication), and that there was no reason why she could not return to work.
Plaintiff worked on and off for approximately two to three weeks. Thereafter, she submitted a request for a leave of absence for the remainder of the 1993-94 school year. The request was granted and plaintiff did not return to work that year.
In May 1994, plaintiff filed a worker's compensation claim, seeking benefits for being "verbally abused by the school principal" when Butler stated "this is a whole new ballgame" and "who do you think you are?" in response to plaintiff's request to be excused from the faculty meeting in September 1993. The claim was resolved on November 17, 1995. She was adjudged to have a compensable injury consisting of a 20% permanent partial disability (generalized anxiety and dysthymic disorder) and was awarded $9,681 plus reinstatement of sick days from October 15, 1993 through May 2, 1994, including a credit to the Board of Education of 7.5% for a prior condition. On appeal the award was reduced to $2,500 (less $500 to plaintiff's attorney) and no sick days.
Plaintiff requested a transfer to another school. The request was granted. Plaintiff began teaching first grade at School 30 in September 1994. Plaintiff testified that the conditions as School 30 were "horrific" and that if she had known what it would be like she never would have transferred from School 25. Plaintiff testified that her students were "crack babies," were not toilet trained, and looked through garbage cans for food. She testified that the school was filthy. A report submitted in plaintiff's worker's compensation proceeding indicated that plaintiff found the transfer to School 30 to be a "tough transition."
Plaintiff was absent for 11 of the first 25 school days. She received a letter from the principal of School 30, defendant Charles Brown, noting her absences. Plaintiff claims that Brown criticized her repeatedly for her absenteeism during the 1994-95 school year. Plaintiff was absent 40 times during that year.
Plaintiff claims that she was given poor evaluations by defendant Brown and others and that she was criticized by Brown:
• October 1994: Brown gave plaintiff the highest rating, "satisfactory," in 3 areas and "needs improvement" in 2 areas ("utilizes effective instructional techniques" and"addresses affective domain"); Brown gave comments and suggestions for the areas that needed improvement;
• March 1995: evaluator Catherine Surdavel gave plaintiff "needs improvement" in 1 area ("employs effective organization and planning") and "satisfactory" in the remaining areas;
• May 1995: Brown made an "Annual Written Performance Report" on plaintiff. The report contained seven areas; plaintiff received "satisfactory" in 4 and "needs improvement" in 3 ("utilizes effective instructional techniques," "exhibits professional attitudes and manner," and "establishes rapport with pupils, staff and/or parents and community"). Brown gave comments and suggestions for the areas that needed improvement;
Plaintiff objected to the assessment of her professional attitude. She attributed the rating to an incident with a substitute teacher. Plaintiff was reprimanded by the assistant principal in connection with the incident.
• 1994-95 school year: Brown criticized plaintiff for not keeping her classroom clean, for allowing students to place bottles on the window sill, and for failing to contact parents.
Reviews and evaluations of plaintiff prior to her transfer to School 30 also indicated areas needing improvement.
Plaintiff was assigned to teach fourth grade for the 1995-96 school year. Plaintiff took a leave of absence in mid-December 1995. In February 1996, plaintiff submitted a request for a transfer to another school. Plaintiff did not return to work until April 1, 1996. She began keeping a journal detailing problems with her students and the administration:
• September 1995: Brown warned plaintiff about her absences;
• October 1995: Brown and plaintiff had a post-evaluation conference that went well;
• November 1995: plaintiff was reprimanded for leaving her class unattended/with a security guard; plaintiff believed she was given the poorest students and was told by Brown that she was to teach students in preparation for the Metropolitan Achievement Test;
• mid-December 1995-April 1, 1996: plaintiff was on medical leave;
• March 1996: Human Resources recommended that a salary increment be withheld due to plaintiff's excessive absenteeism;
• April 1996: plaintiff was evaluated by Michael Balesterri, a district math supervisor. Plaintiff was given "unsatisfactory" in 2 areas and "needs improvement" in the remaining 3. Plaintiff filed a disclaimer to the evaluation, stating that the evaluation came at an inappropriate time because she had just returned from her leave of absence;
• April 1996: plaintiff had a confrontation with a parent and thereafter was absent from school for one week. Upon her return, Brown performed an evaluation, finding plaintiff "satisfactory" in 2 areas and "needs improvement" in 3 areas. Brown recommended that plaintiff attend Summer Teacher Academy to address areas needing improvement. Brown expressed concern about plaintiff's absences.
Plaintiff challenged the withholding of her salary increment for the 1996-97 school year. An arbitration hearing was conducted in September 1997. The arbitrator noted that plaintiff had been absent without approval from March 11 through March 27, 1996 and that in the prior four years, plaintiff had been absent 359 days, amounting to two full years of absence. Plaintiff did not dispute the accuracy of the records. Plaintiff attributed absences to health problems (her own and her family members') and her working environment. The arbitrator concluded that the District was justified in withholding plaintiff's salary increment. Thereafter, plaintiff filed a complaint and order to show cause in New Jersey Superior Court, Hudson County, against the school district and the union — Jersey City Education Association ("JCEA"). Plaintiff's claim against JCEA was that it did not appeal the arbitrator's decision. The complaint was dismissed.
Robert Cecchini, Vice President of JCEA, testified that he saw plaintiff a number of times after her transfer to School 30 and that she had many complaints about the working conditions at the school. He represented plaintiff in fashioning a settlement with the school district that allowed for plaintiff to be credited with 25 years of service and thus allowed her to retire as of July 1, 1997, and collect a full pension.
Plaintiff applied for social security disability benefits on August 26, 1997. In a decision dated March 23, 1999, plaintiff was found by an administrative law judge to be totally disabled as of June 12, 1996.
Medical records subsequent to plaintiff's retirement indicate that she was having panic attacks and was tearful and upset. She experienced depression and heart palpitations. Dr. Byrd reported that plaintiff's condition was chronic and she was often fragile. Her coping mechanisms were limited. She was distressed over her husband's lack of motivation, opinions of her lawyer, problems with her insurance company, financial difficulties, problems with her children, her mother's illness and death, and difficulties with the man with whom she was having an extra-marital affair.
DISCUSSION
A. Section 1983
Section 1983 provides a civil remedy for violations of rights created by the Constitution or federal law. 42 U.S.C. § 1983;Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997); Maine v. Thiboutot, 448 U.S. 1 (1980). Section 1983 is not itself a source of substantive rights, but provides a remedy for the deprivation of rights found elsewhere. Plaintiff's first cause of action alleges that defendants deprived her of her right to liberty and property without due process of law.
1. Fourteenth Amendment Due Process
An individual seeking to invoke the protection of the due process clause of the Fourteenth Amendment must first establish that she has been deprived of a liberty or property interest. See Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972). In the context of employment in public education, a property interest can derive from a contract that provides for continued employment and that can be terminated only for good cause. See Harrington v. Lauer, 888 F. Supp. 616, 619 (D.N.J. 1995).
In the present case, plaintiff was a tenured teacher, and therefore under New Jersey law, plaintiff could not be dismissed except for inefficiency, incapacity, or conduct unbecoming a teaching staff member or other just cause. See N.J.S.A. § 18A:28-5. Additionally, plaintiff's salary adjustment increment could not be withheld except for inefficiency or other just cause.See N.J.S.A. § 18A:29-14. Therefore, plaintiff had a property interest in her continued employment and salary adjustment increment.
Plaintiff has not, however, established that she was denied due process. She herself has alleged the procedures in place and availed of by her to address her alleged grievances, e.g., requesting transfers; filing objections to evaluations; challenging the withholding of her salary increment (which went to arbitration, and when plaintiff was displeased with the result, plaintiff filed a complaint in state court), and negotiating a settlement that gave her credit for 25 years of service and allowed her to retire and receive a full pension. Although not set forth in full detail in the record, the court takes note of the elaborate procedures established by the New Jersey statutes to ensure that the employment rights of teachers and other public employees are fully protected (not the least of which is N.J.S.A. § 34:15-39.1, which explicitly provides for quasi-judicial proceedings for compensatory damages and civil penalties against an employer who discharges or discriminates against an employee because such employee has claimed or attempted to claim worker's compensation benefits). Plaintiff, under the guise of the Fourteenth Amendment, seeks in this case to substitute this court for the well-constructed mechanisms established under collective bargaining agreements and New Jersey law to govern all manner of employment disputes. Plaintiff simply has not alleged claims that fall within the generalized purview of the Fourteenth Amendment. Lest there be any doubt, however, the substance of plaintiff's claim of retaliation is addressed, and disposed of, below.
2. Worker's Compensation
Plaintiff alleges that she was harassed, discriminated against and constructively discharged in retaliation for seeking to obtain worker's compensation benefits. She further claims to have suffered damages as a result of the alleged harassment, discrimination and constructive discharge.
To prevail on a claim for constructive discharge, a plaintiff must show that the employer knowingly permitted conditions so intolerable that a reasonable person subject to them would resign.See Gaul v. ATT, 955 F. Supp. 346, 353 (D.N.J. 1997), aff'd, 134 F.3d 576 (3d Cir. 1998); Muench v. Township of Haddon, 255 N.J. Super. 288, 302 (App.Div. 1992).
As will be discussed below, plaintiff is unable to establish that a reasonable person in her position would have had no choice but to resign.
New Jersey recognizes a common law claim for retaliatory discharge when an employee is discharged contrary to a clear mandate of public policy. See Pierce v. Ortho Pharm. Corp., 84 N.J. (1980). Moreover, the discharge of an employee in retaliation for filing a worker's compensation claim has been found to fall within a Pierce-type claim. See Lally v. Copygraphics, 173 N.J. Super. 162 (App.Div. 1980), aff'd, 85 N.J. 668 (1981).
In so holding, the New Jersey Supreme Court stated in Lally that
there exists a common law cause of action for civil redress for a retaliatory firing that is specifically declared unlawful under N.J.S.A. §§ 34:15-39.1 and 39.2. The statutory declaration of the illegality of such a discharge underscores its wrongful and tortious character for which redress should be available. Such a cause of action is strongly founded in public policy which, in this case, is reflected in the statutory prohibitions themselves.85 N.J. at 670.
N.J.S.A. § 34:15-39.1 states that:
It shall be unlawful for any employer or his duly authorized agent to discharge or in any manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim workman's compensation benefits.
Note that although this section does not provide an aggrieved employee with a private statutory action in a trial court, quasi-judicial proceedings before the New Jersey Commissioner of Labor and Industry are available. In such a proceeding, the Commissioner may award compensatory relief, as well as impose a civil penalty in an amount not to exceed $1,000.
In analyzing a retaliatory discharge claim under New Jersey law, courts look to correlative federal law to supply the burden-shifting framework and relevant standards for evaluating the claim. See Abrams v. Lightolier Inc., 50 F.3d 1204, 1212 (3d Cir. 1995). In a retaliatory discharge claim brought under Title VII, the law places the initial burden of production on the plaintiff to establish a prima facie case of retaliatory discharge. Once the plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the discharge. Ultimately, the plaintiff must show that the defendant's proffered reasons for the discharge are not worthy of belief and that the defendant acted with the intent to retaliate unlawfully. See McDonnell Douglas Corp. v, Green, 411 U.S. 792, 802-04 (1973).
A defendant is entitled to summary judgment on a plaintiff's claim for retaliatory discharge if it can demonstrate that: (1) the plaintiff is unable to establish a prima facie case of retaliatory discharge; or (2) if plaintiff can establish a prima facie case, the plaintiff cannot produce sufficient evidence pretext to rebut the defendant's asserted legitimate reason for discharge. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). In fact, "[w]ithout any specific evidence showing [a] plaintiff's discharge was in retaliation for his having filed for worker's compensation benefits, [a] defendant's motion for summary judgment must be granted." Mallon v. Prudential Prop. Cas. Inc. Co., 688 F. Supp. 997, 1011 (D.N.J. 1988).
In order to establish a prima facie case for retaliatory discharge, the employee must prove that: (1) she made or attempted to make a claim for worker's compensation benefits; and (2) she was discharged for making that claim. See Lally, 85 N.J. 668. There is no dispute that plaintiff in this case made a worker's compensation claim. She was adjudged to have a compensable injury and was awarded $9,681 plus reinstatement of sick days. On appeal the award was reduced to $2,500.
What plaintiff is unable to establish, however, is that she was discharged for making the worker's compensation claim. She has presented no facts whatsoever from which an inference may be drawn that she was harassed to the point that she was compelled to resign because she submitted a worker's compensation claim.
Plaintiff filed her worker's compensation claim in May 1994. She resigned (or according to plaintiff, was constructively discharged) in July 1997. Although the timing of the filing of a claim as it relates to an alleged retaliatory discharge may, in some cases, be significant, in this case there simply is no nexus between the filing of the worker's compensation claim and the alleged retaliatory discharge. See Bush v. Commonwealth Edison Co., 990 F.2d 928, 933 (7th Cir. 1993) (granting summary judgment in favor of defendant where alleged retaliatory discharge occurred one-and-a-half years after filing of worker's compensation claim). Plaintiff resigned more than three years after she filed her claim and after compiling an extraordinary record of absenteeism. Although plaintiff claims that she was subject to harassment immediately upon filing her worker's compensation claim, the inference that the school district conceived a complex scheme to make conditions so unbearable for plaintiff for years so that she would resign is too far-fetched to justify a rational trier of fact in concluding, in the face of the uncontested evidence, that plaintiff would not have resigned had she not filed the worker's compensation claim. Additionally, plaintiff's contention that she received stellar evaluations until she arrived at School 30 is not supported by the evidence. Even if that were the case, however, there could be numerous explanations for that fact, not the least of which could have been that plaintiff's teaching was affected by her excessive absenteeism).
Moreover, plaintiff cannot establish that she was constructively discharged. It cannot be said that being warned about admitted absences, receiving evaluations not markedly different from those during the period before which she alleges that harassment began and being reprimanded for conduct contrary to school policy are conditions so intolerable that a reasonable person would have resigned.
Additionally, plaintiff points to the withholding of her salary increment for the 1996-97 school year as another form of harassment. That issue went to arbitration and was resolved in favor of the school district. Plaintiff filed a complaint in state court arising out of the same facts as the arbitration. That complaint was dismissed. Therefore, issue preclusion applies. See Seborowiski v. Pittsburgh Press Co . , 188 F.3d 163, 169 (3d Cir. 1999).
Mere unsupported conclusory allegations contained in her complaint are insufficient to create a genuine issue of material fact in order to withstand summary judgment. The undisputed material facts reveal that plaintiff cannot withstand defendant's motion for summary judgment because she cannot establish a prima facie case of retaliatory discharge.
Even if plaintiff could establish a prima facie case, she nevertheless could not withstand summary judgment. Defendants have set forth a legitimate non-discriminatory reason for her alleged constructive discharge — plaintiff's excessive absenteeism — and plaintiff has failed to present any facts to show that defendants' articulated reason is pretextual.
B. The Remaining Claims.
In addition to her § 1983 claim, plaintiff makes state law claims of breach of contract, breach of the covenant of fair dealing, wrongful discharge, and intentional infliction of emotional distress. Jurisdiction over these claims will be exercised pursuant to 28 U.S.C. § 1367, which provides for supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy."
For the reasons set forth in the section of this opinion disposing of plaintiff's § 1983 claim, plaintiff's claims of breach of contract, breach of the covenant of fair dealing, and wrongful discharge are dismissed as well.
To establish a claim for intentional infliction of emotional distress under New Jersey law, a plaintiff must show that: (1) defendants acted intentionally or recklessly; (2) the conduct was "extreme and outrageous;" (3) defendants' actions were the proximate cause of plaintiff's emotional distress; and (4) plaintiff suffered "severe emotional distress." McNemar v. Disney Store, Inc., 91 F.3d 610, 622-23 (3d Cir. 1996). In addition to the fact that plaintiff cannot establish that defendants acted intentionally or recklessly, she cannot establish that defendants' conduct was "extreme and outrageous." New Jersey courts hold that to satisfy this element, a plaintiff must show that the conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988). That plaintiff simply cannot do. Not only was defendants' conduct not outrageous, it appears to have been perfectly reasonable under the circumstances.
Conclusion
For the reasons set forth above plaintiff's motion for summary judgment is granted. An appropriate order shall be entered.