Opinion
DOCKET NO. A-0746-11T4
09-28-2012
PINESE HARRIS, Plaintiff-Appellant, v. RAMAPO COLLEGE OF NEW JERSEY, Defendant-Respondent.
Kristen M. Welsh argued the cause for appellant (Schiffman, Abraham, Kaufman & Ritter, P.C., attorneys; Evan L. Goldman and Ms. Welsh, on the brief). Robert P. Preuss argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheidlin, Assistant Attorney General, of counsel; Mr. Preuss, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Harris, and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9542-08.
Kristen M. Welsh argued the cause for appellant (Schiffman, Abraham, Kaufman & Ritter, P.C., attorneys; Evan L. Goldman and Ms. Welsh, on the brief).
Robert P. Preuss argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheidlin, Assistant Attorney General, of counsel; Mr. Preuss, on the brief). PER CURIAM
On June 30, 2008, sixty-eight-year-old plaintiff Pinese Harris ended her employment at defendant Ramapo College of New Jersey (the College) after working there for almost twenty-nine years. She subsequently sued the College — seeking remedies under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, among several other legal theories — claiming age discrimination and the creation of a hostile work environment. Judge John J. Langan, Jr. granted summary judgment in favor of the College and dismissed all of Harris's claims. She appeals, arguing that Judge Langan erred when he
did not draw all reasonable inferences from the record in favor of [Harris], resolved issues of disputed material facts, made determinations of credibility and intent which are instead appropriate for a jury, and lastly, failed to account for the sensitive context of employment discrimination of which our courts are particularly mindful.We disagree with Harris's characterization of the judge's decision and conclude that summary judgment was properly granted. Accordingly, we affirm.
I.
A.
In July 1979, Harris began working for the College. By 1982, she had become an affirmative action officer, tasked with investigating claims of discrimination. In 1994, she accepted the position of Coordinator of the Office of Events and Conferences. In that job, Harris administered the rental of campus space for non-academic uses. By 2007, Harris was reporting directly to Rosa Mulryan, Assistant Vice President for Special Projects and Events and Conferences. At that time, Harris was employed pursuant to a fixed-term contract, which began in 2003 and was set to expire on June 30, 2008.
In December 2006, Mulryan proposed the restructuring of the Office of Events and Conferences. Among the planned changes was the creation of a new position, called the Director of Facilities Scheduling/Events and Conferences, "who will serve as the final authority/decision-maker in scheduling campus indoor and outdoor spaces with internal and external users in accordance with established priorities." Mulryan's restructuring memo acknowledged that the new position would take on some of Harris's job responsibilities, noting that
[t]he [C]oordinator of [the Office of] [E]vents and Conferences position currently filled by Pinese Harris would remain and be adjusted as described in the attached position description. Essentially, the budget/business/accounting and supervisory function would be moved to the [D]irector (in addition to the other duties of the [D]irector) and Ms. Harris would assist the [D]irector in producing new rental contracts and in reconciling contracts. She would continue to coordinate the various support units on campus to staff and implement events and communicate necessary requirements to event contacts.
In January 2007, the College's administration approved the creation of the new position — now called Manager, Facilities Scheduling/Events and Conferences — and in March 2007, advertised for applicants. The job advertisement described the job's requisite skills and responsibilities as follows:
In that same month, Harris applied for reappointment as Coordinator of the Office of Events and Conferences. On May 17, 2007, Mulryan wrote, "[w]ith the understanding that the modifications described in the [Office of Events and Conferences] restructure plan are scheduled for implementation, I support Ms. Harris'[s] reappointment request."
The Manager of Facilities Scheduling Events and Conferences serves as the final authority/decision[-]maker regarding the non-academic use of indoor and outdoor campus facilities while maintaining the balance between institutional, community, and fiscal needs. He/she is responsible for managing the business functions of the unit (budget and revenue). He/she develops and implements an ongoing marketing plan to generate steady rental income to meet specific College goals; oversees a real time online reservation system and accurate and update informational Web site; administers, develops and implements standardized fee structures; creates, develops and produces facility rental contracts and statistical reports; and directs and oversees contract reconciliations, compromising of fees collection, human resources payments, and housing fee and damage deposit administration. He/she develops and administers unit and related campus policies and procedures in accordance with the mission of the institution, ensuring they are in compliance with applicable guidelines, laws and regulations and contribute to an effective, efficient andThe hiring process was moderated by a Mulryan-appointed search committee, which was assigned to not only interview applicants but also to administer three separate competency tests in Microsoft Excel, writing, and "grammar and structure."
profitable facilities rental operation. Supervises a coordinator and co-supervises a scheduling specialist.
Over sixty individuals applied for the Manager's position, but only six were interviewed, including Harris. Harris was scheduled to take the required tests immediately following her interview, but after the interview finished, Harris refused to take the examinations and left. She described the interview process as a "set up" and a "farce," explaining that it was not properly conducted. Harris thought that the search committee had not followed proper protocol and therefore decided that she was not going to complete the application process. Harris professed that she decided not to continue with the application process because she believed that "[t]here was no affirmative action monitor present at that interview." Consequently, Harris was never considered for the new position. Deborah Spina was ultimately hired as the new Manager.
Harris filed complaints with both her collective negotiating representative and the College concerning the reorganization of her department and the fact that Spina's position undermined her responsibilities. The complaints resulted in the College's consideration of a buy-out of Harris's employment contract in exchange for her early retirement prior to the June 30, 2008 employment contract expiration. On June 19, 2007, Harris signed a Settlement Agreement and General Release, which provided that in exchange for retiring effective July 1, 2007, she would receive financial remuneration and other benefits:
In consideration of Ms. Harris'[s] retirement from her position as a Coordinator of Events and Planning [sic] effective July 1, 2007, Ramapo College of New Jersey agrees to pay Ms. Harris, $75,000.00 in a lump-sum payment for the cancellation of the remainder of her contract from June 30, 2007 to June 30, 2008.Simultaneously, Harris signed an Application for Retirement Allowance for submission to the New Jersey Division of Pensions and Benefits (the Division), providing for an effective retirement date of July 1, 2007.
On June 26, 2007, Harris received a letter from the Division explaining that if she retired on July 1, 2007, she would have less than the requisite twenty-five years of employment necessary for full pension benefits. The quarter-century of service credit would not be reached until December 1, 2007.
The next day, Harris filed a second Application for Retirement Allowance, with a new retirement date of December 1, 2007. That same day, the College's President, Dr. Peter Mercer, wrote the following to Harris: "As a result of our negotiations regarding your retirement, your reappointment application was not forwarded to the Board of Trustees for action. Therefore, your current contract will end on June 30, 2008."
In the months that followed, the parties' attorneys attempted to forge a new agreement whereby the College would compensate Harris for the December retirement date. On October 15, 2007, after months of failed negotiations Harris withdrew her December retirement application.
During the months of negotiation, Harris contends that she found herself in a hostile work environment. She noted "constant nitpicking at whatever work she did, phone calls, just little nitpicking stuff." Subsequently, Harris began hypertension and anxiety treatment with Susan M. Levin, M.D. Dr. Levin recommended a two to three day workweek. Harris was granted intermittent family leave and began limiting her work attendance to two to three days per week. Upon returning from leave, Harris testified that she was not permitted to access her former office, or its contents. Harris was assigned to archive another office's files, work she characterized as "[m]ake believe work."
The record contains Harris's deposition testimony where she stated that she felt "badgered" and "humiliated" when criticized for making "a mistake of thirty-seven cents in a contract rather than thirty-eight. It should have been X amount of dollars with thirty-eight cent[s]." She stated that she felt "criticized [because] it was sent back to me in writing" and "it was hurtful, it was very embarrassing."
On April 17, 2008, Harris filed a third Application for Retirement Allowance with an effective date of July 1, 2008. When the latter date arrived, Harris's employment ended. A replacement Coordinator of the Office of Events and Conferences was hired by the College in short order.
B.
On December 16, 2008, Harris filed her complaint in the Law Division. It alleged that the College violated the LAD when it (1) "effectively terminated Harris['s] employment because of her age" (count one); (2) "constructively terminat[ed] Harris because she was advanced in age" (count two); and (3) "[made] Harris believe that the conditions of employment had been altered and that the working environment was hostile and/or abusive" (count three). The complaint further alleged that the College "inflict[ed] severe emotional distress on Harris" (count four); breached the "implied covenant of good faith and fair dealing" (count five); and was barred by promissory estoppel from "attempt[ing] to induce an earl[y] retirement" (count six). On July 22, 2011, after discovery had been completed, the College filed a motion for summary judgment. The motion was argued on August 19, 2011.
On September 9, 2011, Judge Langan granted the College's motion in a twenty-six page written opinion dismissing the entire complaint. The judge concluded that Harris never suffered an adverse employment action, and that the College had legitimate non-discriminatory reasons for its course of action. Specifically, "[the College's] failure to hire [Harris] for the new [M]anager position was not an adverse job action since she withdrew from consideration from the position when she refused to take the required tests." The judge further found that "[Harris's] refusal to complete the application process defeats [her] burden to show that the [College's] refusal to hire her in the new [M]anager position was a pretext." Additionally, "[Harris] cannot show that the [College] had an improper, discriminatory motive for creating the new [M]anager position because it carried with it 'final decision-making authority[.]'"
The motion judge also found meritless Harris's claim that the College's failure to renew her employment contract was an adverse employment action. He held that the "[College] did not terminate [Harris], she voluntarily retired" and noted "it is undisputed that in a memo dated May 17, 2007, Ms. Mulryan, [Harris'] supervisor, recommended that [Harris] be reappointed [C]oordinator of [the Office of] Events and Conferences." Moreover, the judge found that "[Harris] never sought to reinstate the reappointment process even after she withdrew the two retirement applications." Judge Langan added:
There is nothing set forth in the record that she did not want to retire nor that she wanted to be reappointed in any position . . . . Other than [Harris's] statements about her feelings concerning retirement, nowhere is there any request set forth in this record that [Harris] told anyone that she did not want to retire or that she wanted her contract to be renewed.
The motion judge rejected the idea that the College's creation of the new managerial position had the effect of constructively terminating Harris. Lastly, the judge held that Harris was never exposed to a hostile work environment because "[Harris] qualifie[d] as a hypersensitive employee." This appeal followed.
The final judgment also dismissed Harris's claims based on the theories of intentional infliction of emotional distress, breach of the implied covenant of good faith and fair dealing, and promissory estoppel. Harris did not brief these issues on this appeal, and accordingly they are deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).
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II.
A.
"In determining whether summary judgment was properly granted, we apply the same standard [governing Judge Langan] — we view the evidence in the light most favorable to the non-moving party." Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)). We do not resolve material facts disputed by the parties; that is a matter for the ultimate trier of fact. Many facts in this case are hotly disputed, but our review of the record reveals that none of the material facts are in dispute. Because the Law Division entered summary judgment against Harris, who was the non-moving party, we must give her the benefit of all positive inferences presented in the record before us. See Daidone v. Buterick Bulkheading, 191 N.J. 557, 560-61 n.1 (2007). After applying that paradigm, we reach the same conclusion as Judge Langan.
B.
On appeal, Harris first contends that she established a prima facie case of age discrimination. We disagree. New Jersey employs the federal approach to establish a prima facie case of unlawful discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); see also Nini v. Mercer Cnty. Cmty. College, 406 N.J. Super. 547, 554 (App. Div. 2009), aff'd, 202 N.J. 98 (2010) (employing the McDonnell-Douglas test to establish a prima facie LAD cause of action). To assert such a claim, Harris had the burden of proving that: "(1) she was a member of a protected group; (2) her job performance met the 'employer's legitimate expectations'; (3) she was terminated; and (4) the employer replaced, or sought to replace, her." Ibid. (citing Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005)). Essentially, Harris had the burden to prove that a "'prohibited consideration played a role in the decision making process and that it had a determinative influence on the outcome of the process.'" Greenberg v. Camden Cnty. Vocational & Technical Schs., 310 N.J. Super. 189, 198 (App. Div. 1998) (quoting Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 344 (App. Div.), certif. denied, 152 N.J. 189 (1997)). Once a plaintiff establishes a prima facie case a presumption is created "that the employer unlawfully discriminated against the [plaintiff]." Goodman v. London Metals Exch., Inc., 86 N.J. 19, 31 (1981). Consequently, the burden shifts to the employer to offer some legitimate, non-discriminatory reason for the employee's termination. Ibid.
Judge Langan found that Harris failed to establish a prima facie case of employment discrimination because she was neither terminated nor subjected to any other adverse employment action. Our canvass of the record aligns us with his conclusion that the College's "failure to hire [Harris] in the new [M]anager position was not an adverse job action since she withdrew from consideration from the position when she refused to take the required tests." Moreover, Judge Langan was indubitably correct that the College's decision to not renew Harris's employment contract did constitute an adverse employment action because that action was preceded by Harris's unambiguous announcement of her decision to retire:
In the present case, [Harris] submitted an application for retirement on three separate occasions, thus indicating to the [College] that she did not wish to renew her contract. This [c]ourt, therefore, finds that the [College] did not refuse to renew [Harris's] contract and that [she] was not terminated, but rather, she voluntarily retired from her employment with the State.Ultimately, the judge properly determined that there was no constructive termination because the new managerial position was distinctly different from Harris's Coordinator's position, which continued to exist after the Manager's job was created.
On appeal, Harris contends that these conclusions resulted from the court "improperly view[ing] facts in favor of the moving party, ma[king] credibility determinations, and ignor[ing] disputes of material fact." However, Harris fails to identify even one disputed material fact she claims would change the result. In fact, the record reveals that the motion judge based his factual findings on the material facts expressly conceded by Harris, and so do we.
Next, Harris contends that she suffered a discriminatory adverse employment action when she was not reappointed to her Coordinator position. The record makes abundantly clear, by Harris's own admission, that she applied for reappointment on January 9, 2007, and conceded that on May 17, 2007, her immediate supervisor, Ms. Mulryan, recommended her reappointment. Harris further agreed that subsequent to Mulryan's recommendation, she and her union negotiated and executed a settlement agreement whereby she would be remunerated for retiring prior to her then-current contract expiration. To fulfill the settlement agreement, Harris submitted an application for retirement to the Division, and one week later she submitted a second application for retirement with a different effective date, in response to her desire to meet the twenty-five year requirement to receive full pension benefits. This conduct was unmistakably a signal that Harris no longer sought reappointment and fully explains the College's understanding of Harris's state of mind.
Judge Langan found that save for Harris's unexpressed and unshared thoughts about retirement, the only request she made to be reappointed was through her January 9, 2007 application, which was submitted months before she executed the settlement agreement and filed her first and second retirement applications. Nothing in the record remotely suggests that Harris made a later request — formal or informal — to be reappointed for a new contract term.
Harris argues that although she did not formally request to have her reappointment application reactivated, the withdrawal of her second application for retirement not only put the College on notice of her desire to stay on board as Coordinator, but actually imposed an affirmative duty on the College to consider her initial application. We find no support in the law or logic for these propositions. Harris's withdrawal of her June 27, 2007 retirement application does not reasonably suggest that she wished to be reappointed. The ensuing negotiations never concerned whether Harris would retire after her then-current contract expiration. The negotiations simply focused on what would be the terms of the College's buy-out of the rest of her contract once she became eligible for full retirement. Harris's conduct only suggests that she intended to work the rest of her contract before retiring.
Notably, Harris never asked for the reappointment process to be restarted. In fact, as late as April 2008, Harris had filed a third retirement application, this one with an effective date of July 1, 2008, which coincided with the end of her current contract term. Moreover, the record reveals that as of August 2007, Harris began to use up her allotted sick leave and personal leave. By February 2008, Harris was out on leave and did not return until approximately four weeks before her contract expired. No rational trier of fact could conclude that these unequivocal, unilateral actions were anything other than Harris voluntarily winding down her long career with the College. There was no adverse employment action involved in this case; consequently, Harris was unable to establish a prima facie discrimination claim under the LAD. Moreover, even if Harris had established a prima facie case, on this record she could not establish that the College's legitimate non-discriminatory explanation for its actions was a pretext.
C.
Lastly, we turn to Harris's hostile work environment claim. To establish a hostile work environment cause of action, Harris must show that: (1) the conduct would not have occurred but for her identity within a class protected by the LAD, and (2) the conduct was severe or pervasive such that (3) a reasonable person in the same protected class would believe that "the conditions of employment are altered and [that] the working environment is hostile or abusive." Cutler v. Dorn, 196 N.J. 419, 430 (2008) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)). In determining if conduct is "severe or pervasive," it is necessary to assess the totality of the relevant circumstances. Taylor v. Metzger, 152 N.J. 490, 506 (1998). Factors to consider in making this assessment include "examination of (1) 'the frequency of all the discriminatory conduct'; (2) 'its severity'; (3) 'whether it is physically threatening or humiliating or a mere offensive utterance'; and (4) 'whether it unreasonably interferes with an employee's work performance.'" Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 (2008) (quoting Green v. Jersey City Bd. of Educ, 177 N.J. 434, 447 (2003)).
"[A] hostile work environment discrimination claim cannot be established by . . . comments which are 'merely offensive.'" Heitzman v. Monmouth Cnty., 321 N.J. Super. 133, 147 (App. Div. 1999) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295, 302 (1993)). Neither rude and uncivil behavior nor offensive comments alone create a hostile work environment under the LAD. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 25 (2002). Further, the test is strictly objective: the focus should neither be on Harris's actual, subjective reaction, nor on the College's (or its agents') intent, but on whether a reasonable person in Harris's position would consider the work environment hostile. Cutler, supra, 196 N.J. at 431.
We reject Harris's contentions that she satisfied the burden — even pursuant to indulgent summary judgment standards — that she was exposed to a hostile work environment. She only advanced broad conjectural statements about the College's intentions and its employees' behavior, limiting her challenge to a scant few instances that we conclude were inconsequential. We discern no genuine issues of material disputed fact, and conclude that Judge Langan correctly analyzed the claim and dismissed it.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
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CLERK OF THE APPELLATE DIVISION