Opinion
DOCKET NO. A-5399-12T3
10-21-2014
LUZ ALICIA STRANO, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE EAST WINDSOR REGIONAL SCHOOL DISTRICT, MICHAEL DZWONAR, ALIX ARVIZU, BILL DELANEY and SANDY SMALL, Defendants-Respondents.
Glenn A. Montgomery argued the cause for appellant (Montgomery, Chapin & Fetten, P.C., attorneys; Mr. Montgomery, of counsel and on the briefs; Brandon W. Burke, on the brief). Peter H. Spaeth argued the cause for respondents Board of Education of the East Windsor Regional School District, Michael Dzwonar, Alix Arvizu and Sandy Small (Wolff, Helies, Spaeth & Lucas, P.A., attorneys; Austin B. Tobin, on the brief). Howard M. Nirenberg argued the cause for respondent Bill Delaney (Nirenberg & Varano, LLP, attorneys; Mr. Nirenberg and Sandra N. Varano, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Waugh and Accurso. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2959-10. Glenn A. Montgomery argued the cause for appellant (Montgomery, Chapin & Fetten, P.C., attorneys; Mr. Montgomery, of counsel and on the briefs; Brandon W. Burke, on the brief). Peter H. Spaeth argued the cause for respondents Board of Education of the East Windsor Regional School District, Michael Dzwonar, Alix Arvizu and Sandy Small (Wolff, Helies, Spaeth & Lucas, P.A., attorneys; Austin B. Tobin, on the brief). Howard M. Nirenberg argued the cause for respondent Bill Delaney (Nirenberg & Varano, LLP, attorneys; Mr. Nirenberg and Sandra N. Varano, on the brief). The opinion of the court was delivered by ACCURSO, J.A.D.
Luz Alicia Strano appeals from two final orders for summary judgment dismissing her complaint against the Board of Education of the East Windsor Regional School District, Michael Dzwonar, Alix Arvizu, Bill Delaney and Sandy Small for wrongful termination, hostile environment, sexual harassment, retaliation for complaints of racial and ethnic discrimination and sexual harassment under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, retaliation for the filing of a workers' compensation claim under the Workers' Compensation Act, N.J.S.A. 34:15-39.1, and for breach of contract. We affirm.
The material facts, undisputed for purposes of the motions, and viewed most favorably for plaintiff, can be summarized as follows. Plaintiff was born in Mexico and educated there as an engineer. She learned English as an adult and speaks it with an accent. After moving to Freehold, she enrolled in a Masters program at Rutgers with the aim of acquiring a teacher certificate via the alternate route provided by N.J.A.C. 6A:9B-6.4(a). She obtained her first teaching position in 2006, a five-month position in Point Pleasant filling in for an algebra teacher on maternity leave.
At a job fair in March 2007, she met defendant Small, supervisor of mathematics for defendant district, who invited her for an interview. Plaintiff advised Small that she could not interview immediately as she had plans to travel to Mexico to visit family. The two agreed that plaintiff would interview in the district upon her return. At the interview, plaintiff was offered a position to fill in for another teacher for the remaining two months of the term.
Plaintiff began her employment with the district on April 24, 2007, teaching algebra at Hightstown High School. The next two months passed uneventfully, and plaintiff was offered a one-year contract for the 2007-2008 school year.
At the start of the 2007-2008 school year, defendant Arvizu, principal of the high school, introduced plaintiff on the first day of school saying that plaintiff had done "an awesome job, in her first few months" and that the district "was very happy to have her back." Sometime during that first semester, however, the assistant principal, defendant Delaney, called defendant in to discuss complaints about her accent from students in plaintiff's statistics class. Plaintiff claimed that Delaney told her that he observed her Shelter algebra I class and saw "that being bilingual, being Hispanic was great to your advantage when you're teaching Hispanic kids, but it doesn't work when you're teaching normal kids." When asked at deposition whether Delaney had actually used the words "white," "regular" or "normal" to refer to the native English speaking students as plaintiff had stated, she testified that "[h]e said being bilingual, being Hispanic makes you very qualified to teach Hispanic students, but that's not the case when you're teaching the rest of the students."
"Shelter" classes are designed for students not proficient in English.
Plaintiff testified that Delaney told her he had told the complaining students "to give [her] a month to fix it." When she asked him whether he was telling her she had a month to "fix" her accent, he told her "in a very loud way, 'Well, you want me to make this complaint official? You want it official, because I can leave it here and you can fix it or I can make it official so it's in your record.'" Plaintiff testified that she left Delaney's office in tears and was so upset by his comments that she could not sleep and had to call out sick the following day.
Plaintiff testified that Small heard what happened and sent her an e-mail the following day asking plaintiff to call her. Plaintiff called her from home, crying, and told her what Delaney had said. Plaintiff testified that Small told her that Delaney "was wrong and she was going to talk to Alix [Arvizu, Delaney's supervisor] about it." Small asked plaintiff to come back to school. Plaintiff spoke to Arvizu at school the next day. She testified that Arvizu told her that she had heard what happened and had already spoken to Delaney, and "had told him that's not the way we handle things in this school."
Delaney evaluated plaintiff twice during that same 2007-2008 school year, giving her the highest available rating in all categories. Plaintiff testified that she had no further substantive dealings with Delaney while employed by the district. There is no evidence in the record that Delaney took part in the district's decision to terminate plaintiff's employment.
Plaintiff testified that on the last day of classes in 2008, someone left a cartoon on her desk at the end of the day stating "Please God, deport her." She took the cartoon to Dr. Chase, another of the assistant principals. Plaintiff told Chase she did not know who left the cartoon. Upon learning from plaintiff that her last class had been statistics, made up entirely of graduating seniors, Chase took the cartoon but said "it's graduation day, there's really nothing we can do now."
At the end of plaintiff's first year, Small conducted an evaluation of plaintiff in which she noted that plaintiff needed improvement in understanding students' developmental learning needs and acting as a decision-maker who makes appropriate choices as teaching proceeds. While plaintiff's contract was renewed for the 2008-2009 school year, the district put her on a sixty-day remedial plan designed to address some perceived shortcomings in plaintiff's classroom management and planning.
During the 2008-2009 school year, another math teacher made a comment to which plaintiff took offense. The two were in the teacher's lounge. Plaintiff, who said she got along well with the colleague, was recounting an incident in which one of her students expressed surprise when plaintiff could respond to the student's mother in Spanish. Plaintiff thought it funny that the student had not noticed she spoke Spanish because plaintiff was aware that she spoke English with an accent. Plaintiff testified that her colleague responded, "Oh really. Just look at yourself. I mean you look all Mexican. I understand her being surprised if you look like me, but the way you look it's obvious." Plaintiff did not tell her colleague that she was offended by her response or mention the incident to anyone else.
Plaintiff's evaluations for the 2008-2009 school year were generally good, and the district again renewed plaintiff's contract for the 2009-2010 school year, her third full year in the district.
In September at the start of the 2009-2010 school year, plaintiff injured her foot and filed a workers' compensation claim. She testified that the doctor she was told to see by the district eventually told her that "You should be better by now" and that "[T]his doesn't look good on your record." Although plaintiff did not miss any school on account of the injury, she walked with a cane for some period. Dr. Chase granted plaintiff's request to hold a regularly scheduled study hall in her classroom instead of in the cafeteria so that she would not have to walk to the cafeteria with the cane. When asked at deposition the basis for her allegation that she was terminated in retaliation for filing the compensation claim, plaintiff responded "[b]ecause that's the year when it happened."
During that same semester, plaintiff received an e-mail message through a school-based software program, Study Island, from a student's account. Plaintiff testified that the e-mail said "[plaintiff], I want you. Please touch me. I love you or please touch me tonight. Or touch me tonight, I want you, or something like that." Plaintiff reported the e-mail to two district supervisors standing nearby. Plaintiff claimed that one of the supervisors took the message "to see what he could do about it." The other supervisor said "that something had to be done about it. That there was recurrent sexual harassment with female teachers and something had to happen."
The next day, the supervisor who took the message wrote to the software provider with details of the transmission stating "we need you to investigate two instances of inappropriate messages to a teacher." The software provider responded within hours reporting that the same IP address had been used multiple times on the same day and that the login was atypical of the user. The provider further advised that a student using another's credentials could log in as the first student at a time when the first student was already logged on. The provider concluded "that is not enough to say that someone else has his credentials, but it's a pretty good argument." The provider suggested that the supervisor contact support to see whether any further information might be available.
The supervisor had learned that plaintiff had received two messages from the same student's account on two different days. The first message read "[plaintiff] U R cool." When plaintiff confronted the student, he admitted sending the first message but not the second. Plaintiff does not allege that the first e-mail was inappropriate.
The supervisor followed up with support the following day, which advised it was not possible to determine whether someone else used the student's login, but recommended the district consider changing the student's password in the event "someone else has it." Plaintiff was copied on the supervisor's e-mail exchange with the provider and concedes the district conducted an investigation into the matter and concluded that the student from whose account the inappropriate message was sent did not send the message.
During plaintiff's third year, the district received several complaints about plaintiff from parents, a few of which were documented in e-mails. Specifically, one parent wrote complaining that plaintiff had failed to show for a scheduled parent-teacher conference. Another wrote asking for a change in her daughter's honors geometry class because plaintiff had rebuffed the student's several requests for assistance. A third parent asked that her son be transferred out of plaintiff's class because she had used information from his "504 [plan] as a way to embarrass and make fun of him" and also "slapped [him] in the back of his head when he gave a wrong answer during a class assignment."
Plaintiff objected to the inclusion of these e-mails in her brief opposing summary judgment contending they were inadmissible hearsay. She did not, however, ask the judge at oral argument to rule on their admissibility before deciding the motion. We thus deem the objection waived. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010) (explaining that an evidentiary question on summary judgment is to be addressed before the merits of the motion). Because the district relied on these documents as proof that the administration received complaints about plaintiff and not for the truth of the allegations, we see no basis for excluding them from the record on summary judgment. See N.J.R.E. 801(c); Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007).
Plaintiff testified that during her third year, she met with Arvizu and Small about a complaint from a parent to the superintendent about students she had separated in class. She said that she explained that there were some students being disruptive and that she was "dealing with the discipline in the classroom." She testified that Arvizu and Small told her "just to let it go, to you know, just keep going just like if nothing had happened." Afterwards she talked separately with both women. Plaintiff claimed that Small told her "the reason that these people were doing this to me, the parents, the students and the parents is because I'm not a white teacher." Small also said that "they have been doing this to [an African-American teacher] and she's been here for over 30 years and they still do this. They complain about her just because she's black." Plaintiff claimed that Arvizu told her "It is expected that they are going to complain because you're Mexican. People here in the town are upset because of so many Hispanics moving into town and they're going to take it [out] on you, against you because you're Mexican."
Both Small and Arvizu deny making those comments, they were admitted solely for purposes of summary judgment.
Plaintiff's first two evaluations during her third year continued to be generally positive but contained more critical comments about classroom management. Small conducted an evaluation during the first semester noting that plaintiff met expectations in all categories but stated in the "overall" assessment that "[plaintiff] planned a solid lesson but failed to execute the plan."
In plaintiff's final evaluation, which Small conducted in March 2010, plaintiff was noted to have met expectations in eleven of fourteen categories and to need improvement in three: demonstrating an understanding of the students' developmental learning needs, acting as a decision-maker who makes appropriate choices as teaching proceeds and evaluating student achievement for the improvement of instruction. Small commented in the evaluation that while plaintiff had worked to improve her teaching, "there are still areas of concern." The comments detailed those areas in which improvements had not sufficed and noted the complaints of parents regarding plaintiff's teaching and interactions with students. The evaluation concluded that plaintiff had not met the district's "expectations of providing an academically challenging learning experience" for students at the high school and was not being recommended for tenure. Small and Arvizu were the administrators who made the recommendation that plaintiff not get tenure.
The evaluation stating that plaintiff was not being recommended for tenure was dated March 23, 2010. Plaintiff's projected tenure date was April 25, 2010, three years and a day from the date she began teaching in the district. On March 26, defendant Dzwonar, who was serving as interim superintendent of the district, wrote to plaintiff advising that a recommendation would be made to the Board of Education to terminate her contract effective April 13. He testified that after he received Small and Arvizu's recommendation that plaintiff not receive tenure, he recommended that the Board terminate plaintiff's contract in order to avoid her becoming tenured automatically by remaining employed beyond her April 25 tenure date. Dzwonar wrote to plaintiff on April 14 advising that the Board of Education at its meeting on April 12 had terminated her employment effective April 13 and that she would be paid sixty days' severance. There is no dispute that plaintiff received her sixty days' severance payment. Indeed, plaintiff testified that she was paid through the end of the school year, a period slightly longer than sixty days.
Plaintiff testified she declined the district's offer to resign because of uncertainty surrounding the effect of a resignation on unemployment benefits.
After hearing oral argument, the Law Division granted summary judgment to all defendants. In a brief opinion from the bench, the judge reviewed the facts on the motion and determined that plaintiff could not carry her burden on any of her claims.
We review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).
Plaintiff argues that the judge misstated and misapplied the summary judgment standard and erred in construing the LAD. Because we apply the same standard as the trial judge and review questions of law de novo without deference to interpretive conclusions we believe mistaken, Nicholas v. Mynster, 213 N.J. 463, 478 (2013), Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we do not address those arguments. Instead, we limit our discussion to plaintiff's argument that genuine issues of material fact precluded summary judgment on her claims.
We turn first to plaintiff's claims that she was subjected to a hostile environment on the basis of racial and ethnic discrimination. To establish a cause of action under the LAD based on a hostile work environment, plaintiff must prove 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 of plaintiff's protected status believe that (4) the conditions of employment have been 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)).
Because the LAD is not a fault-based statute, plaintiff need not show that defendants intentionally created a hostile work environment but only that the conduct and comments would not have occurred but for her Mexican heritage. See Lehmann, supra, 132 N.J. at 603-04. Likewise, in determining whether conduct is sufficiently severe or pervasive to constitute an actionable hostile environment, the focus is not on plaintiff's subjective response to the alleged hostile acts but on the acts themselves. Cutler, supra, 196 N.J. at 431. We do not, however, look at each act in isolation. Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003). Instead,
we look to "all the circumstances," including "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 v. Hunterdon Developmental Ctr., 174 N.J. 1, 19-20 (2002) (quoting AMTRAK v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106, 124 (2002)).]
Our courts have long held that "severe or pervasive" conduct can be established by "numerous incidents that, if considered individually, would be insufficiently severe." Cutler, supra, 196 N.J. at 432 (citing Lehmann, supra, 132 N.J. at 607). Nevertheless, as the Court has noted, the LAD has not "created a sort of civility code for the workplace where only language fit for polite society will be tolerated." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 549 (2013). A plaintiff is entitled to a work environment free from discrimination, Fuchilla v. Layman, 109 N.J. 319, 335, cert. denied, sub nom. University of Medicine & Dentistry of N.J. v. Fuchilla, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed.2d 51 (1988), not one free of annoyances and disagreeable colleagues. Herman v. Coastal Corp., 34 8 N.J. Super. 1, 23 (App. Div.), certif. denied, 174 N.J. 363 (2002). But see Cutler, 196 N.J. at 436-37 (2008) (noting that inappropriate "workplace cultures" created by persistent derogatory comments, can give rise to liability under the LAD).
Plaintiff points to five instances of conduct by defendants which would not have occurred but for her Mexican heritage: Delaney's comments about her accent and competence to teach non-Hispanic students, the cartoon left on her desk on graduation day, the comment by a colleague that she looked "all Mexican" and the comments by Small and Arvizu that parents were complaining about plaintiff because she was Mexican. Accepting as true each of those incidents, and considering their cumulative effect, we do not find that a rational juror could conclude the conduct was severe or pervasive enough to make a reasonable person of Mexican descent believe her conditions of employment had been altered and that her work environment was hostile or abusive.
While we accept that each of the incidents occurred, we do not agree that all constitute discriminatory conduct. Specifically, the comments plaintiff attributes to Small and Arvizu cannot qualify as such. Plaintiff claims that both women told her that they believed she was being singled out for criticism because of her heritage. Plaintiff does not claim that either shared the views they described, and there is nothing in the record demonstrating that was the case. In fact, the opposite is suggested by their counsel to plaintiff regarding the complaints and their quick response to her report of Delaney's comments. Small told plaintiff she believed Delaney "was wrong" and that she intended to speak to Arvizu, Delaney's supervisor, about his remarks. Small made the report to Arvizu, who immediately chastised Delaney, advising "that's not the way we handle things in this school."
The admonition was obviously effective as Delaney did not make further remarks about plaintiff's accent and gave her the highest marks available in the evaluations he conducted.
Depending on which of the various ways plaintiff testified that Delaney worded his reference to the non-Hispanic students at the high school, the same might be said of his remarks. Even if he referred to the non-Hispanic students as the "regular" or "normal" students, and told the complaining students to give plaintiff some time to "fix" her accent, those remarks are far different from many found actionable in other cases. See, e.g., Cutler, 196 N.J. at 433-34 (describing derogatory and insulting statements about Jews uttered by superiors and colleagues to and in ear-shot of plaintiff, known to be of Jewish faith). Delaney was addressing, albeit insensitively, at best, an issue plaintiff concedes was legitimate, whether her accent was impeding her ability to communicate with certain of her students. Accepting, as we do, that a reasonable person of Mexican heritage would view the remarks as offensive and discriminatory, those statements along with the derogatory cartoon and the isolated remark by a colleague simply are not sufficiently severe or pervasive to constitute an actionable hostile environment as a matter of law.
Applying the same analysis to plaintiff's claims of hostile environment sexual harassment, it is plain that summary judgment on that claim was also appropriate. The only incident of sexual harassment plaintiff alleges is the inappropriate e-mail she received from a student's Study Island account and the supervisor's remark that "something had to be done" about sexual harassment of teachers by students in the high school. The supervisor's remark is obviously not harassing. The e-mail itself, while clearly inappropriate, was not sufficiently severe to make a reasonable woman believe the conditions of her employment had been altered, whether considered alone or in conjunction with the comments made to plaintiff on account of her Mexican heritage. Moreover, while the student sending the e-mail was never identified, it is undisputed that the district took prompt action to investigate the claim. See Lehmann, supra, 132 N.J. at 621 (stating that anti-harassment policy and an effective formal or informal complaint structure to address sexual harassment will shield an employer from vicarious liability).
Plaintiff also claims that the trial court erred in dismissing her claims for wrongful termination and retaliatory discharge. We disagree.
In order to prove a discriminatory discharge claim under the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677(1973), a plaintiff's prima facie case consists of demonstrating: (1) that plaintiff is in a protected class; (2) that plaintiff was otherwise qualified and performing the essential functions of the job; (3) that plaintiff was terminated; and (4) that the employer thereafter sought similarly qualified individuals for that job. Victor v. State, 203 N.J. 383, 408-09 (2010). Once plaintiff establishes her prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005). If the employer does so, thus overcoming the presumption of discrimination, the burden shifts back to plaintiff to prove that the employer's proffered reason for the termination was merely a pretext for discrimination. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999). "Although the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination." Ibid.
We have no hesitation in concluding that plaintiff easily made out a prima facie case of discriminatory discharge under the LAD. We find the district likewise satisfied its burden to produce evidence of a nondiscriminatory reason for the discharge. The district contended that it terminated plaintiff in order to avoid giving her tenure. While witnesses for the district testified that the district would ordinarily simply not offer a new contract to a third-year teacher it decided not to tenure, doing so here would have been ineffective for that purpose because plaintiff was initially hired in April to finish out the school year for another teacher. Dzwonar and others testified that allowing plaintiff to finish out her contract would have resulted in her automatically acquiring tenure. See N.J.S.A. 18A:28-5. Because Dzwonar concurred in Small and Arvizu's recommendation that plaintiff not be offered tenure in the district, he recommended to the Board that it terminate her contract prior to her projected tenure date of April 25, 2010.
Plaintiff's case for discriminatory discharge foundered on her inability to produce sufficient evidence to put the issue of pretext before the jury. Plaintiff simply failed to put forth evidence that the decision-makers, Small, Arvizu and Dzwonar, possessed a discriminatory motive in recommending her termination. Outside of the comments plaintiff attributes to Small and Arvizu, to which no discriminatory meaning can be ascribed, no such evidence exists on this record. Although plaintiff asserts that Delaney's comments prove he harbored discriminatory animus, there is no evidence that Delaney had any involvement in plaintiff's termination. Accordingly, we agree that the judge was correct in dismissing plaintiff's discriminatory discharge claim on summary judgment.
A plaintiff's prima facie case for retaliatory discharge is similar but not identical to one for discriminatory discharge. A plaintiff alleging she was subject to a retaliatory discharge must demonstrate: (1) that she "engaged in protected activity"; (2) the activity was "known to the employer"; (3) she suffered "an adverse employment decision"; and (4) there existed "a causal link between the protected activity and the adverse employment action." Battaglia, supra, 214 N.J. at 547 (quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)). Plaintiff's inability to prove that she was subjected to a hostile environment is not dispositive of this claim. See Battaglia, supra, 214 N.J. at 547-49 (rejecting this court's view that unless the plaintiff was the victim of an act of discrimination or a hostile work environment, he cannot recover for retaliation). All a plaintiff need prove is a causal link between her complaints of discrimination in the workforce and the retaliation. See id. at 549.
Plaintiff alleged that she was terminated in retaliation for filing a workers' compensation complaint under the Workers' Compensation Act, N.J.S.A. 34:15-39.1, Lally v. Copygraphics, 173 N.J. Super. 162, 181-82 (App. Div. 1980), aff'd, 85 N.J. 668 (1981), or for her complaints of racial and ethnic discrimination and sexual harassment under the LAD. The only evidence plaintiff offered to support her claim that she was retaliated against for filing a compensation claim was that both the claim and her termination occurred in the same school year. Mere closeness in time between the filing of a compensation claim and an adverse act, however, has been held insufficient to support a claim for retaliation. Young v. Hobart W. Grp., 385 N.J. Super. 448, 466-67 (App. Div. 2005). Plaintiff produced no evidence that her termination was in any way linked to her complaints of racial and ethnic discrimination and sexual harassment. Accordingly, we reject plaintiff's claim that issues of fact precluded summary judgment on plaintiff's retaliation claims.
Because we conclude that summary judgment on plaintiff's LAD claims was properly entered in favor of the district, plaintiff's claims against the individual defendants for aider or abettor liability must necessarily fall.
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Finally, plaintiff claims the district breached her contract by failing to give her sixty days' notice of its intent to terminate her contract. The contract provision at issue provides in pertinent part:
It is hereby agreed by the parties hereto that this contract may at any time be terminated by either party giving the other 60 days notice in writing of intention to terminate the same, but that in the absence of notice as provided herein, the contract shall run for the full term named above.It is undisputed that the district terminated plaintiff's contract without providing her sixty days' notice. The district, however, paid plaintiff through the end of her contract, a period slightly longer than sixty days. We do not conclude that payment in lieu of notice constitutes a breach of the parties' contract. Moreover, given that plaintiff was paid through the end of her contract, she has not suffered damages. Accordingly, we affirm the entry of summary judgment dismissing plaintiff's contract claim.
In sum, because plaintiff failed to allege facts sufficient to survive summary judgment in respect of her claims under the LAD and the Workers' Compensation Act, and the trial court properly rejected her claims for breach of contract, we affirm the orders dismissing her complaint against defendants in its entirety.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION