Alan Schorr’s Employment Case of The Week ending April 26, 2013

Shnaidman v. State of New Jersey, 2013 WL 1776098 (App. Div. April 26, 2013) (unpublished)

In this week’s Case of the Week, Shnaidman v. State of New Jersey, the Appellate Division exercised a Solomonic split, reversing summary judgment but leaving the Plaintiff with a fraction of her original claim.

Dr. Vivian Shnaidman was a psychiatrist with the Department of Human Services for nine years. During that time, she was no stranger to litigation. A Westlaw search produced 37 separate opinions in which her reports or testimony played a part, mostly in civil commitment cases. In any event, she began to complain in 2005 and 2006 that her male co-worker, who would later be promoted to be her supervisor, was sexually harassing her and creating a sexually hostile working environment. She claimed that she subsequently suffered a series of retaliatory acts that eventually led her to resign because she believed that she was about to be terminated.

She filed suit in 2007 alleging hostile working environment and retaliation under the LAD and a series of common law claims. After discovery, the trial court dismissed all counts. The common law claims were dismissed for statute of limitations and exclusivity provisions, and dismissed the LAD claims for a number of reasons. The Appellate Division affirmed the dismissal of the common law claims, but reversed both the hostile working environment and the retaliation claims, although the Court affirmed the dismissal of major chunks of those claims. In doing so, there were some rulings and quotes that defendants will use often.

With regard to the hostile working environment claim, a problem with the plaintiff’s case involved her failure to identify the harasser in her complaints. The trial court found the failure to be dispositive. The Appellate Division, however, held that although the plaintiff had failed to identify the harasser by name, she had done so by specifying the harasser’s position, which clearly identified who the harasser was, and on that basis, reversed that part of the claim. The Court also found that plaintiff’s complaints were serious, and, if believed, rose to the level of hostile working environment. The Court did permit the Defendants to continue to exert their Faragher affirmative defense at trial, and therefore permit the jury to find against the plaintiff if they find that the plaintiff did not properly complain. A quote that you may see again:

The LAD, and EEO and internal complaint procedures are meant to address and correct serious discrimination. They are not meant to be a guessing game of “Twenty Questions.”

The plaintiff’s retaliation claim did not fare as well. The Court discounted all but one act of retaliation, and ruled that the jury could not consider a series of harassments to be part of the retaliation claim. In doing so, the Court treated a long series of mistreatment following the discrimination complaint to be discrete acts, and held that none of the claims standing alone could rise to the level of an “adverse action”. Some of these actions sound pretty serious to me. But the Court shrugged them off. For example:

Third, plaintiff claims that M.M. berated her over her work performance, calling her stupid, incompetent, arrogant, bipolar, borderline, and a bitch. Like Title VII, however, the LAD “does not set forth ‘a general civility code for the American workplace.” Under the LAD, epithets, insults, rudeness, and even severe personality conflicts are generally insufficient to establish a hostile work environment. No case has found it enough for an adverse employment action. (Citations omitted)

Here, I believe the Court got it totally wrong. These incidents were part of a long string of abusive behavior directed at the Plaintiff. In Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003), the Supreme Court, in a CEPA case, but comparing to the LAD, ruled:

Indeed, “adverse employment action taken against an employee in the terms and conditions of employment,” N.J.S.A. 34:19-2e, can include, as it did in this case, many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.

In this case, the Court never mentioned Green, but instead relied upon Heitzman v. Monmouth County, 321 N.J.Super. 133 (App.Div.1999), certif. denied, 174 N.J. 363 (2002), an anti-semitism case which was expressly overruled on the precise issue of what constitutes a hostile environment retaliation in Cutler v. Dorn, 196 N.J. 419, 435 (2008). The Court here refused to recognize the clear pattern of abuse, and dismissed all the claims of retaliation except for one small part of the claim involving an alleged threat against her job.

This is an unpublished opinion, so it does no damage to Green, but practitioners trying to prove adverse action through a series of events should carefully draft pleadings and craft arguments to follow the Green case, and should be prepared to meet the kind of challenges highlighted by this opinion.

Plaintiffs-Appellants’ counsel: David H. Kaplan, Esq.

Defendants-Respondents’ counsel: Jacqueline Augustine, D.A.G.; Jeffrey S. Chiesa, A.G.; Melissa H. Raksa, A.A.G.; and Kathryn J.H. Boardman, D.A.G.

Trial Court Judge: Douglas H. Hurd, J.S.C.

Appellate Court Judges: Fisher and Leone.

(Ed’s note: Apologies for the late blog this week, Alan was off celebrating his birthday. Happy Birthday, Alan!)