Beverly Figueroa v. Union County Sheriff’s Department, et. al., Docket no. A-2179-14T1 (N.J. App. Div.) (Decided February 3, 2017)

By Matthew Schorr

This week’s case of the week is yet another cautionary tale for claims brought under the NJLAD. On February 3, 2017, the Superior Court of New Jersey Appellate Division affirmed Defendants’ summary judgment ruling from the Union County Superior Court.

Plaintiff, a Sherriff’s Officer for the Union County Sherriff’s Department (UCSD), filed this complaint while still employed by Defendant UCSD. In the complaint, Plaintiff alleged violations of her rights under the NJLAD. First, Plaintiff alleged that she was unlawfully retaliated against for making complaints about sexual harassment. Second, Plaintiff alleged that she was discriminated against due to her psychological disability.

The Appellate Division pointed out several deficiencies with each of the claims made by Plaintiff. Plaintiff alleged that a co-worker, John Santora, would say “go-go” as he walked by Plaintiff’s desk. Plaintiff took offense to this term because prior to her position with UCSD, Plaintiff worked as a go-go dancer. The court found, however, that “go-go” was a nickname for someone in Plaintiff’s unit with the last name Gomez. Gomez would laugh at this nickname in front of Plaintiff. Plaintiff became increasingly agitated around Gomez and threatened Gomez.

Plaintiff made a formal complaint; however, the report did not state any allegations of discrimination or harassment based on a protected class under the LAD. Under the LAD, to prove a claim for retaliation in the workplace, the protected activity must be known to the employer.  Plaintiff had never previously complained to her employer about the term “go-go.”  This complaint was raised with Plaintiff’s union and ultimately Plaintiff decided to forego a formal complaint with the union.

Furthermore, the Court found that no adverse action was taken against Plaintiff as her transfers to other units did not involve a loss of pay, prestige, or responsibility. In fact, Plaintiff’s transfer was to separate her from the co-workers she made complaints about.

Plaintiff’s second argument is that she was discriminated against under the NJLAD due to a perceived mental disability.  This argument fails because Plaintiff’s pre-employment report specifically stated that Plaintiff was not mentally ill. The report further stated that Plaintiff had personality problems. As no disability existed, a claim for disability discrimination was unable to succeed.

As in any case, facts are the deciding factor. Here, Plaintiff brought a claim under the NJLAD for retaliation and discrimination. The facts show that retaliation did not occur because a complaint was never formally made. Further, the facts show that Plaintiff did not have a disability protected under the NJLAD. Lastly, the facts show that no adverse employment actions were taken against Plaintiff.

Alan will be making his return to Case of the Week next week. We hope you enjoyed the Associates’ look at the law.

Judges Yannotti, Kennedy, and Gilson