Opinion
DOCKET NO. A-1903-14T1
03-22-2016
CINDY CASTRO, Plaintiff-Appellant, v. COUNTY OF BERGEN, BERGEN COUNTY SHERIFFS OFFICE, BERGEN COUNTY POLICE ACADEMY, and LEO McGUIRE, Defendants-Respondents.
Patrick P. Toscano, Jr. argued the cause for appellant (The Toscano Law Firm, attorneys; Mr. Toscano, on the briefs). Nicholas P. Milewski argued the cause for respondents (Thomas B. Hanrahan & Associates, LLC, attorneys; Thomas B. Hanrahan, of counsel and on the brief; Mr. Milewski, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Carroll, and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8687-12. Patrick P. Toscano, Jr. argued the cause for appellant (The Toscano Law Firm, attorneys; Mr. Toscano, on the briefs). Nicholas P. Milewski argued the cause for respondents (Thomas B. Hanrahan & Associates, LLC, attorneys; Thomas B. Hanrahan, of counsel and on the brief; Mr. Milewski, on the brief). PER CURIAM
Plaintiff Cindy Castro, a corrections officer employed by defendant Bergen County Sheriff's Office (BCSO), appeals from a December 5, 2014 order granting a motion for reconsideration filed by the BCSO and former Sheriff Leo McGuire (collectively, "defendants"). The order dismissed as time-barred plaintiff's claim that she was subject to a hostile work environment and retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We affirm.
I.
We discern the following facts from the record. Plaintiff, who is of Middle Eastern ethnic descent, was first hired by the BCSO as a probationary corrections officer in 2005. She alleges that, while working at the Bergen County Jail in June 2005, a female co-worker referred to her as a "terrorist" upon learning that plaintiff spoke Arabic as a second language. After plaintiff verbally reported the incident to a superior officer, a meeting was convened during which the co-worker allegedly apologized. Plaintiff advised her superior that she would be satisfied with an apology, and no disciplinary action was taken against the co-worker.
We note that, in a December 10, 2013 certification, the co-worker specifically denied referring to plaintiff as a "terrorist." However, because the case was decided on summary judgment, we view the facts in the light most favorable to plaintiff, the non-moving party. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
To become a permanent corrections officer, plaintiff was required to successfully complete a training program at the Bergen County Police Academy. While at the Academy, it is undisputed that plaintiff was unable to maintain the required pace during group runs. She contends that she was singled out for disparate treatment when she fell behind during the runs, and that she was otherwise physically fit. Although plaintiff's instructors told her that "word had gotten around" that she had reported the "terrorist" remark to her superiors, they denied this had any bearing on her treatment at the Academy. Because of her alleged poor conditioning, plaintiff was offered the choice of being dismissed or voluntarily resigning. On October 28, 2005, plaintiff submitted a letter resigning her position with the BCSO.
Plaintiff was hired as a corrections officer by the New Jersey Department of Corrections in March 2006. Pursuant to that employment, she completed a training program at the New Jersey Police Academy in Sea Girt. Plaintiff then worked at East Jersey State Prison until March 2009, when the BCSO again hired her as a corrections officer.
Plaintiff claims that upon her return to the BCSO in 2009, she was referred to as a "terrorist," a "trouble maker," and a "rat." In her deposition testimony, plaintiff was unable to specifically name anyone who referred to her in such terms. Plaintiff also alleged that, sometime in 2009, another officer referred to her as "sandy." When plaintiff asked, "What is a sandy?" he responded, "You know, a sand n*****."
Plaintiff received a reprimand for calling out sick during a blizzard on February 10, 2010, in violation of the BCSO's inclement weather policy. Plaintiff protested and filed a grievance with her union that went unanswered. She conceded that, to her knowledge, another employee who failed to report to work that day received a similar sanction.
Plaintiff announced that she was pregnant in March or April 2010. She advised her superiors that her doctor recommended she not wear her vest during her pregnancy. Plaintiff also "requested to be placed in an area where there was no inmate contact, just as other pregnant officers had requested in the past and had been accommodated." As a result, she was placed on temporary alternate duty. After plaintiff protested, she was reassigned to a unit where inmates were held. Eventually, in September 2010, plaintiff was returned to temporary alternate duty at her request.
Plaintiff contends that she was sexually harassed by McGuire on one occasion in June 2010. During that incident, McGuire allegedly put his leg up, thereby trapping plaintiff between his leg and a desk. McGuire then told her "a lot of people were very angry with me when I rehired you," and "one could say you are indebted to me."
On July 1, 2012, plaintiff was cited for insubordination and unbecoming conduct for refusing a mandatory overtime assignment. In response to the written reprimand, plaintiff submitted a memorandum to Captain E. Pawson dated July 3, 2012, in which she stated, among other things:
On July 1, 2012 I entered the employee exit sally port where there were several other [o]fficers. . . . Sgt. Turre asked who the junior officer was. I responded that I was the junior officer but I could not stay. He then asked me if I was refusing a mandatory and I said yes. However, at no time did Sgt. Turre give me a direct order that I was being assigned a mandatory overtime. This officer did not disobey an order as no order was given.Plaintiff further stated that she was unaware of any BCSO rule or regulation that required the most junior officer to be responsible for the overtime assignment if no other officer wanted it.
[(Emphasis added).]
An internal affairs investigation into the incident ensued. In an October 4, 2012 report, the investigator concluded that plaintiff was ordered to work the mandatory overtime assignment and that she refused. The report further concluded that plaintiff was untruthful when describing Sgt. Turre's demeanor during the incident. On October 25, 2012, the BCSO issued a Preliminary Notice of Disciplinary Action informing plaintiff of a proposed sixty-day suspension.
On November 13, 2012, plaintiff filed a complaint against defendants, asserting: (1) hostile work environment and retaliation under LAD; (2) violation of the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-2; (3) violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; (4) intentional infliction of emotional distress (IIED); (5) hostile work environment; and (6) civil conspiracy.
The complaint also named as defendants the County of Bergen and the Bergen County Police Department. The trial court dismissed all claims against those parties, and plaintiff does not appeal those dismissals. --------
On April 22, 2013, the trial court dismissed plaintiff's CRA, IIED, and civil conspiracy claims pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. Following a period of discovery, defendants moved for summary judgment on the remaining claims. On October 29, 2014, the court granted the motion in part, dismissing plaintiff's CEPA and common law hostile work environment claims, but denying the motion with respect to plaintiff's LAD claim.
Pertinent to this appeal, in a written statement of reasons, the judge found that plaintiff's LAD and CEPA claims were not barred by the statute of limitations. Instead, citing Roa v. Roa, 200 N.J. 555, 566 (2010), the court determined that the "continuing violation doctrine" applied to those claims.
In analyzing the merits of plaintiff's CEPA claim, the court found her allegations of whistleblowing and hostile work environment sufficient to establish a prima facie case of retaliation. However, the court next determined:
Simply because [p]laintiff has satisfied her prima facie burden does not insulate her [c]omplaint from summary judgment. Plaintiff's allegations of adverse employment actions consist of (1) her forced resignation in 2005, and (2) her suspension in 2012. In each instance, [d]efendants have proffered a legitimate, nondiscriminatory reason. For the first, [d]efendants claim [p]laintiff was given the choice to either quit or resign because she did not have the physical level of fitness required for the position, a reason that is well-documented by the [BCSO]. For the second, [d]efendants claim [p]laintiff was suspended because she refused to obey a direct order from Sgt. Turre to work a mandatory overtime shift, and then was untruthful in internal affairs interviews as it related to her allegations that Sgt. Turre had behaved in an unprofessional and disrespectful manner towards her. Plaintiff has presented no evidence to rebut [d]efendants' legitimate nondiscriminatory reasons. Indeed, without more it would be impossible for a reasonable juror to infer that it was more likely than not that [p]laintiff's gender/ethnicity was more likely than any other number of less invidious reasons that [p]laintiff was forced to resign or [be] suspended,
including those reasons given by [d]efendants.
Because plaintiff has provided no evidence to rebut [d]efendants' legitimate, nondiscriminatory reason[s], [p]laintiff's CEPA claim is dismissed. . . .
In declining to dismiss plaintiff's LAD claim, the court noted plaintiff's allegations that she had been referred to as a "terrorist" and a "Sand N*****," and that it was up to a jury to determine whether this conduct was so severe and pervasive as to constitute a hostile work environment. The court also noted plaintiff's claim of sexual harassment work environment, citing her alleged June 2010 encounter with McGuire. As to this allegation, the court again determined that it was the jury's function "to determine whether or not this one instance of conduct was so severe as to create a hostile work environment."
Defendants timely moved for reconsideration, which the court granted on December 5, 2014. In a rider appended to the order, the judge reasoned:
Defendants maintain that, in an erroneous application of the "continuing violations doctrine," the [c]ourt relied solely on events that occurred outside the statute of limitations and permitted [p]laintiff's LAD claims to survive summary judgment.
In [Roa, supra, 200 N.J. at 569], our Supreme Court noted,
[T]he continuing violation theory was developed to allow for the aggregation of acts, each of which, in itself, might not have alerted the employee of the existence of a claim, but which together show a pattern of discrimination. In those circumstances, the last act is said to sweep in otherwise untimely prior non-discrete acts.
Accordingly, the last act must fall within the statute of limitations.
Here, after concluding that [p]laintiff's suspension in 2012 was not the result of any discriminatory animus, the [c]ourt found that [p]laintiff's claims for hostile work environment, pursuant to LAD, were viable because the issue of whether [d]efendants' conduct was so severe and pervasive as to cause the environment to become hostile or abusive was an issue rightly reserved for the jury. In doing so, however, the [c]ourt relied solely on instances of alleged misconduct that fell outside the LAD's two-year statute of limitations: namely, (1) allegations that [p]laintiff was consistently referred to as a terrorist, (2) allegations that [p]laintiff was referred to as a "Sand N[*****]," and (3) an allegation that [p]laintiff had been harassed by then-Sheriff Leo McGuire in June/July 2010. Without a discriminatory act — which [p]laintiff's 2012 suspension was not — that occurred within the statute of limitations, the [c]ourt erred by applying the continuing violations theory to toll [p]laintiff's hostile work environment claims.
II.
Plaintiff appeals from the December 5, 2014 order granting defendant's motion for reconsideration. She argues that the motion judge abused his discretion in granting reconsideration and concluding that the continuing violations doctrine did not toll her LAD claim.
A.
We first address our standard of review. In doing so, we acknowledge "that it is only the order[] designated in the notice of appeal that [is] subject to the appeal process and review." W.H. Indus., Inc. v. Fundiaco Balancins, Ltd., 397 N.J. Super. 455, 458 (App. Div. 2008); 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004).
Rule 4:42-2 addresses reconsideration of interlocutory orders, as opposed to Rule 4:49-2, which addresses reconsideration of final orders. See also R. 1:7-4(b) ("Motions for reconsideration of interlocutory orders shall be determined pursuant to R. 4:42-2.").
Reconsideration in either context requires the exercise of the trial court's discretion, in the interest of justice. Compare Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (stating that under Rule 4:49-2, "[r]econsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice") (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), with Lombardi v. Masso, 207 N.J. 517, 534 (2011) ("It is well established that 'the trial court has the inherent power[,] to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment.'") (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)), and R. 4:42-2 (stating that an interlocutory order "shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice").
However, reconsideration of an interlocutory order requires a less stringent showing than reconsideration of a final order. Referring to both Rule 4:50-1, regarding relief from judgments, and Rule 4:49-2, regarding reconsideration of final orders, the Court in Lombardi stated that "stringent constraints imposed on final judgments and orders under Rule 4:50-1 . . . are wholly inapplicable to interlocutory orders." Lombardi, supra, 207 N.J. at 534. The Court added, "Indeed, '[a] significant aspect of the interlocutory nature of an order is its amenability to the trial court's control until entry of final judgment without interposition of considerations appropriate to finality.'" Id. at 534-35 (quoting Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:42-2 (2011)). In other words, we impose more stringent standards on reconsideration of, or relief from, final judgments, in recognition of the value we place on finality, and the stability of judgments.
Rule 4:49-2, governing reconsideration of final orders, requires a prompt motion — within twenty days of entry of the final order — and a showing that the trial court erred in some way, or new evidence has come to light that the movant could not have reasonably discovered previously. See Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006). The Rule expressly requires the movant to include "a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. This has been construed to mean a showing that the court has based its decision on a "'palpably incorrect or irrational basis'" or that it is clear the court failed to consider or appreciate significant evidence. Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401). Alternatively, the movant must show that new evidence "could not have [been] provided on the first application." Ibid.
The court's power to reconsider an interlocutory order is not so constrained. The court's inherent power to reconsider or modify interlocutory orders is "committed to the sound discretion of the court." Johnson, supra, 220 N.J. Super. at 263. It shall be exercised only "for good cause shown and in the service of the ultimate goal of substantial justice . . . ." Id. at 264-65.
Here, the effect of the trial court's reconsideration order was to dismiss plaintiff's LAD claim on summary judgment. In doing so, the court at least in part relied on its findings from the summary judgment motion. Because of this, we deem it appropriate to apply the well-settled standard of review governing summary judgment to further guide our analysis.
"An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We "identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (citing Brill, supra, 142 N.J. at 540; R. 4:46-2(c)).
[A] determination whether there exists a "genuine issue" of material fact that
precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
[Brill, supra, 142 N.J. at 540.]
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006). In this regard, "the legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010). Determining the date upon which a statute of limitations begins to run is an issue of law, subject to such plenary review. Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013).
B.
The LAD is remedial legislation designed "to root out the cancer of discrimination[.]" Cicchetti v. Morris Cnty. Sheriff's Office, 194 N.J. 563, 588 (2008) (citing Fuchilla v. Layman, 109 N.J. 319, 334, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)). The statute prohibits unlawful employment practices and discrimination in the form of harassment, "based on race, religion, sex, or other protected status, that creates a hostile work environment." Cutler v. Dorn, 196 N.J. 419, 430 (2008) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601 (1993)). See N.J.S.A. 10:5-12(a). Further, it prohibits reprisals against an employee who asserts rights granted by the LAD. N.J.S.A. 10:5-12(d).
To establish a cause of action under the LAD based on a hostile work environment, plaintiffs must satisfy each part of a four-part test. Specifically, they must show that the complained-of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive. Within that framework, a court cannot determine what is "severe or pervasive" conduct without considering whether a reasonable person would believe that the conditions of employment have been altered and that the working environment is hostile. Thus, the second, third, and fourth prongs are, to some degree, interdependent.
[Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002) (citations omitted).]
In the context of race discrimination, the first element requires a plaintiff to show harassment occurred because of his or her race. Lehmann, supra, 132 N.J. at 603. The second element assesses "'[t]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.'" Id. at 607 (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)). Usually, repeated incidents are required. However, even a single severe incident may create a hostile work environment in certain circumstances. Taylor v. Metzger, 152 N.J. 490, 500-02 (1998). See also Cutler, supra, 196 N.J. at 430, 432 n.7 (applying same principles to a hostile work environment claim involving religious affiliation).
When considering a claim of hostile work environment under the LAD, the test is fact sensitive and the court must review the totality of circumstances presented. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005). The inquiry is whether a reasonable person in plaintiff's protected class would consider the alleged discriminatory conduct "'to be sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment.'" Ibid. (quoting Heitzman v. Monmouth Cnty., 321 N.J. Super. 133, 147 (App. Div. 1999), overruled on other grounds by Cutler, supra, 196 N.J. at 440). The court weighs the "severity and pervasiveness by considering the conduct itself rather than the effect of the conduct on any particular plaintiff." Id. at 178-79. The factors evaluated include "'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Shepherd, supra, 174 N.J. at 19-20 (quoting AMTRAK v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106, 124 (2002)).
To prove "a prima facie case of retaliation, plaintiff must show that 1) [he or] she was engaged in a protected activity known to defendant; 2) [he or] she was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two." Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996) (citation omitted). See also Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995). Once a plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a "legitimate[,] non-retaliatory reason" for the decision. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). If defendant satisfies this burden, the plaintiff must then demonstrate that a retaliatory intent, not the employer's stated reason, motivated the employer's action, proving the employer's articulated reason was merely a pretext for discrimination. Woods, supra, 290 N.J. Super. at 274; Jamison, supra, 242 N.J. Super. at 445.
C.
Plaintiff's LAD claims are subject to a two-year statute of limitations period. Henry, supra 204 N.J. at 332; Roa, supra, 200 N.J. at 566. The limitations period is subject to an equitable exception for continuing violations. Roa, supra, 200 N.J. at 566.
A court must ascertain whether the acts alleged are discrete, or part of a pattern or series of acts. "[D]iscrete acts, 'such as termination . . . are easy to identify,'" and each such act "constitutes a separate actionable 'unlawful employment practice.'" Shepherd, supra, 174 N.J. at 19 (quoting AMTRAK, supra, 536 U.S. at 114, 122 S. Ct. at 2073, 153 L. Ed. 2d at 122). If the acts are discrete, then a timely claim "does not sweep in a prior untimely discrete act which the victim knew or ought to have known gave rise to a retaliation claim." Roa, supra, 200 N.J. at 561.
[W]e must consider two questions. First, have plaintiffs alleged one or more discrete acts of discriminatory conduct by defendants? If yes, then their cause of action would have accrued on the day on which those individual acts occurred. Second, have plaintiffs alleged a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment? If yes, then their cause of action would have accrued on the date on which the last act occurred, notwithstanding that some of the component acts of the
hostile work environment [have fallen] outside the statutory time period.
[Shepherd, supra, 174 N.J. at 21 (internal quotation marks and citation omitted).]
Here, plaintiff filed her complaint in November 2012. Nearly all of the acts that plaintiff cited in her deposition testimony and interrogatory answers occurred more than two years earlier. We conclude, as did the motion judge on reconsideration, that plaintiff cannot show a continuing violation sufficient to overcome the statute of limitations.
Plaintiff alleges that she was called a "terrorist," based on her ethnicity, during her initial employment with the BCSO in 2005. She also contends that she was subject to disparate treatment while training at the Academy, as a result of reporting the disparaging remark to her superiors. Defendants produced in discovery a series of twenty-three memos authored by plaintiff between September 12 and October 28, 2005, in which she acknowledged that she failed to complete the group run in a timely manner. Nonetheless, plaintiff essentially contends that she was forced to resign from the BCSO on October 28. Even accepting plaintiff's 2005 claims as constituting prima facie evidence of retaliation and a hostile work environment, these events are beyond the statute of limitations for the discrete act of racial discrimination that allegedly occurred during this period. Also, the fact that plaintiff later applied to, and was rehired by, the BCSO, tends to diminish her contention that the situation in 2005 was so intolerable that a reasonable person would be forced to resign. Shepard, supra, 174 N.J. at 28.
Plaintiff alleges that the pattern of harassment continued upon her return to the BCSO in 2009. Specifically, she was called a "Sand N*****" by a fellow officer, and others referred to her as a "terrorist," "a troublemaker," and a "rat." Certainly, accepting these allegations as true, such comments could serve as direct evidence of a hostile work environment. Nonetheless, no adverse employment action was taken against plaintiff then, and she continued to work at the BCSO and did not sue defendants for three years after the hostility allegedly resumed.
Plaintiff argues that those comments can nonetheless be considered under the continuing violation doctrine. However, "the doctrine does not permit . . . the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable." Roa, supra, 200 N.J. at 569.
We reach the same conclusion with respect to discriminatory acts that plaintiff claims occurred in 2010. These include alleged disparate treatment during her pregnancy, the fact that she was "written up" for failing to report to work during a blizzard on February 10, 2010, and McGuire's alleged isolated act of sexual harassment. By no later than September 2010, any disputes over suitable accommodations relating to plaintiff's pregnancy were completely resolved and she was assigned to temporary alternate duty at her request. Plaintiff's failure to report to work violated the BCSO's inclement weather policy, and another employee who failed to appear for work received the same sanction. Similarly, McGuire's singular act of sexual misconduct allegedly occurred in June 2010. All of these discrete discriminatory acts, even if we accept them as true, fall outside the two-year limitations period.
By far, the major events alleged by plaintiff to constitute a LAD violation within the limitations period are those that led to her 2012 suspension. Plaintiff contends that the suspension represents an act of retaliation for her filing of a tort claim notice on August 30, 2012. However, even if plaintiff established a prima facie case of discrimination or retaliation, the motion judge properly found that plaintiff's claims could not withstand further scrutiny. Plaintiff attempts to explain away her reasons for refusing a mandatory overtime assignment. However, plaintiff's own June 1, 2012 memo serves as undisputed proof that she was the junior officer, and that Sgt. Turre "asked [her] if [she] was refusing a mandatory and [she] said yes." The judge properly recognized that defendants articulated a legitimate, nondiscriminatory reason for the investigation and suspension that ensued from plaintiff's act of insubordination. Accordingly, the 2012 events that culminated in plaintiff's suspension do not constitute a basis for a cause of action, nor do they reach back and "sweep in" defendants' conduct otherwise outside the limitations period.
Citing only to her unverified complaint, plaintiff argues that two incidents that occurred in December 2010 also suffice to bring her LAD claim within the two-year statute of limitations. These include: (1) an incident where a superior confronted and harassed her for reporting to her police union the racial/ethnic slurs directed at her; and (2) an incident where a superior harassed her for seeking out a union representative. Plaintiff also cites a reference in her complaint to an August 2012 incident when she was afforded a hearing on the internal affairs charges and was allegedly "mocked and demeaned for reporting McGuire's [] inappropriate, sexually charged conduct toward her." However, none of these allegations are supported by affidavit, nor does plaintiff reference them in the deposition testimony and interrogatory answers she submitted to the trial court in opposition to defendants' summary judgment motion. Accordingly, they are insufficient to defeat the motion. "Bare conclusions in the pleadings, without support in tendered affidavits, will not defeat a meritorious application for summary judgment." Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011) (quoting U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n., 67 N.J. Super. 384, 399-400 (App. Div. 1961)).
We therefore conclude that the motion judge properly exercised his discretion to reconsider his earlier denial of defendants' motion for summary judgment on plaintiff's LAD cause of action. Because the acts that could form the basis for an LAD claim all fall outside the two-year limitations period, plaintiff's LAD claim was properly dismissed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION