Nicole Prager v. Joyce Honda, Inc.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3691-14T3

NICOLE PRAGER,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
August 22, 2016
v.
APPELLATE DIVISION
JOYCE HONDA, INC.,

Defendant-Respondent.
____________________________

Submitted May 23, 2016 – Decided August 22, 2016

Before Judges Sabatino, Accurso and
O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-
2112-12.

Berkowitz, Lichtstein, Kuritsky, Giasullo &
Gross, LLC, attorneys for appellant (Colin
M. Page and John P. Harrington, on the
brief).

Weiler & Brandman, attorneys for respondent
(Michael F. Brandman and Francine M.
Chillemi, on the brief).

Smith Mullin, PC, attorneys for amicus
curiae National Employment Lawyers
Association of New Jersey, Inc. (James E.
Burden, on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.
 Plaintiff Nicole Prager appeals from an involuntary

dismissal at trial at the close of her case pursuant to Rule

4:37-2(b), dismissing claims of retaliation and constructive

discharge by her employer, defendant Joyce Honda, Inc. Although

we disagree with the trial court's stated reasons for entry of

the order, we affirm because the proofs were insufficient to

sustain a judgment in plaintiff's favor.

Viewed most favorably to her, plaintiff adduced the

following facts at trial. Plaintiff was twenty years old and

worked as a receptionist for Joyce Honda in Denville. She had

been there eleven months when a customer of the dealership

leaned over the counter while she was on the phone and tugged at

the sleeve of her off-the-shoulder shirt, exposing her bra.

The matter was quickly referred to the service manager, who

asked whether she wished to press charges. When plaintiff said

she wasn't sure, the service manager told her she had fifteen

minutes to decide and sent her back to her desk. When the

service manager returned fifteen minutes later, plaintiff told

him she did not know what to do. The two then met with the

dealership's general manager.

By the time that meeting took place, managers had already

reviewed surveillance video, which caught the incident on tape.

The meeting began with a discussion between the general manager

2 A-3691-14T3
and the service manager as to how many cars the customer bought

and had serviced at the dealership. The man was a valued

customer, having purchased about twenty cars over the years. He

came into the dealership about twice a month to have one of his

cars serviced. Plaintiff testified the general manager told her

she had the right to press charges, but it would be unfortunate

to lose such a valued customer. The general manager asked

whether she would prefer that he call the customer to reprimand

him. The meeting "left off along the lines that [the general

manager] would contact [the customer] about . . . bringing him

in to reprimand him and tell him he can't do things like that."

Plaintiff testified she left the meeting feeling she "was

allowed to make a complaint" but that "they'd be disappointed if

I made that complaint."

Later that evening, plaintiff sent a text message to the

service manager asking whether the general manager had called

the customer, "[b]ecause I'm nervous he'll hate me whenever he

comes in." The general manager had in fact called the customer,

who had not returned his call.

Six days later, plaintiff sent an email to the vice

president of the dealership, the general manager's boss and the

son-in-law of the owner, with whom she enjoyed "an extremely

friendly relationship." Plaintiff testified she sent the email

3 A-3691-14T3
because she "felt discouraged by [the general manager] and after

the relationship I had with [the vice president], I thought I

could go to him." The email began with plaintiff describing the

incident and expressing her "total shock and disbelief after

such random harass[ment] by one of our customers." It continued

as follows:

Minutes later, I met with [three managers].
They discussed what had happened to me with
[the customer] and proceeded to show me the
incident which was caught by the security
camera, they downloaded a copy of the clip.
[The service manager] told me I had 15
minutes to press charges. I truly didn't
know what to do, I felt embarrassed and
humiliated and pressured to make up my mind
immediately. I returned to my desk and 15
minutes later [the service manager] asked me
if I made a decision, I told him I was
unsure and that most of the employees were
recommending I did, but I felt scared and
very uncomfortable with the whole situation.
At that point we met with [the general
manager] and he asked me if I wanted an
apology from [the customer], I responded no.
The last thing I wanted [was] to see that
man again. I was also made clearly aware
during the meeting that [the customer] was a
good client who owns "five" Hondas and
spends a lot of money with the dealership
and it will be unfortunate to loose [sic]
his business.

[Vice president,] I was always very happy to
work with Joyce Honda and all the employees.
You have been a wonderful boss to work with
and have shown me your support and
friendship since I started working with your
company. As you know a couple of days ago
we have [sic] discussed the possibility of
me getting ahead and working on Saturdays in

4 A-3691-14T3
 the sales department. You were not only
helpful but very encouraging and I truly
appreciate this opportunity. I have always
shown excellent customer service and would
love to grow professionally in your firm.
It was demoralizing to have to experience
this type of behavior and sexual harassment
from one of our customers. Although
initially my reaction was of fear and
discomfort, now as days are passing by I
feel angry, hurt and violated. I sincerely
believe [the customer] should not be allowed
near me, I wonder if he will assault me
again or choose another female co-worker for
his disgusting behavior. I am reconsidering
my early decision and I will press charges
against [the customer]. [I]t will be wrong
on my part to condone his actions. I would
like to discuss this matter with you
personally so it is handled the right way
without causing any repercussions for Joyce
Honda and at the same time taking care of
this incident in a just and fair way.
Please let me know when we can meet to
discuss this matter.

The following morning, the vice president called her into a

meeting with the general manager. The service manager was also

present. Plaintiff testified she was surprised to see the

managers as she had "confided in [the vice president] the

negative feelings [she] had towards them in the prior meeting."

Plaintiff testified the general manager began by asking why

she had changed her mind about pressing charges. She replied by

saying that "other people were telling me that what happened to

me was wrong, that I should press charges." She testified the

general manager responded by "reprimanding" her, "saying I was

5 A-3691-14T3
acting like immature, I guess, just because I was a young girl,

I didn't know how to handle this, that it was inappropriate I

was discussing this with anybody." Plaintiff testified his

response made her angry, "because I was already upset with him

to begin with, and so him being there already was a bad taste

and so I — I got mad. I answered back that I was allowed to

speak to anybody I wanted." She testified that the general

manager "got upset" and left the meeting.

The general manager, who plaintiff called in her case at

trial, testified the vice president shared plaintiff's email

with him before the meeting. He admitted expressing to

plaintiff his view that she was handling the matter with a "lack

of maturity." He explained that, "she went and she told the

entire dealership about her personal business and it was coming

back to me in such a way as though the dealership really didn't

care about their employees, which is not true." He testified

plaintiff responded by saying "in a very enraged way" that "she

didn't have to tell [him] why she had changed her mind" and

"could talk to whomever she wanted about this." He agreed he

got upset and left the meeting.

The meeting ended with the vice president calling the

police to report the incident with the customer. The police

interviewed plaintiff at the dealership. The customer

6 A-3691-14T3
thereafter pled guilty to a petty disorderly offense of

offensive touching and paid a fine.

Plaintiff testified that after she filed her complaint

against the customer, the work environment changed. She felt

isolated and that people were avoiding her. About a week after

she filed the complaint, she received two written warnings for

leaving early without permission. The first warning related to

an incident that had occurred four days before she filed her

complaint against the customer. On that occasion, she switched

Saturday shifts with a co-worker whose great-uncle had passed

away. She testified she had explained to the co-worker that she

could not cover the entire shift because she had a tanning

appointment, and the two agreed the co-worker would come in when

plaintiff had to leave. Plaintiff testified the plan worked as

arranged and that she left the dealership that day without

incident.

When plaintiff was asked on cross-examination whether she

advised a supervisor that she would not be working the co-

worker's entire shift, plaintiff responded, saying "I figure I

must have but I was doing — I was doing Joyce Honda a favor that

day, that wasn't my assigned shift, so I didn't — I didn't think

I would have to stay until 5 o'clock if I was unable to."

7 A-3691-14T3
 The dealership claimed plaintiff left without adequate

staff coverage after two different managers denied her

permission to leave. The general manager testified that after

being denied permission to leave, plaintiff called her co-worker

to cover the end of the shift. The co-worker arrived crying,

and the dealership sent her home and covered her position until

the end of the day. The general manager testified he directed

the service manager to give plaintiff a written warning shortly

after the incident, but the manager delayed doing so for reasons

unknown.

The other warning was for an incident in which plaintiff

allegedly again left early without authorization. Plaintiff

claimed the same co-worker came in a couple of hours early to

cover the end of plaintiff's shift. She claimed she advised the

assistant service manager, who said it was fine so long as

someone was at the desk. Plaintiff testified she had previously

left early and had her co-worker cover "many times," without

ever having previously been disciplined.

On cross-examination, plaintiff acknowledged time records

and text messages to her supervisor documenting twenty-seven

times in eleven months in which she had previously arrived late.

She also corrected her prior testimony that she had never been

late in the eleven months she worked for the dealership. She

8 A-3691-14T3
explained at trial that her "definition of late was not the

same" as the questioner's. "I believe because I did give [my

manager] a heads up and he okayed it, after that I just

considered I was on time being we discussed a new time I would

arrive."

Although plaintiff's first written warning was silent as to

the consequences for further infractions, the second stated

there could be time off without pay or termination should the

incident occur again. The general manager testified he directed

plaintiff be given the written warnings because:

Prior to this, [plaintiff] would send a
battery of e-mails. I'm going to be late,
it's this, it's that. She would always
communicate, which, to me, shows a sign of
respect. Even though it was inappropriate,
we were able to deal with it. It didn't
really disrupt our business. But it had
reached a point with [plaintiff] where she
was no longer talking to her bosses, she was
just making her own decisions. And I felt
that that was the basis for now writing –
writing her up and giving her a warning.

Plaintiff refused to acknowledge receipt of either warning.

She admitted getting very upset during the meeting when she was

presented the warnings, raising her voice and directing

profanity at her supervisors. She testified the write-ups were

"false," were not intended to be constructive and were designed

as punishment. When asked on cross-examination what she thought

the warnings were "punishment for[,] if not for not working

9 A-3691-14T3
scheduled hours," plaintiff replied, "Because those weren't my

scheduled hours. I was helping out someone whose uncle just

died and no one was there to cover it, and I was getting written

up for not being on shifts that weren't my assigned shifts."

The following day, the vice president and general manager,

the service manager and the assistant service manager met with

plaintiff to discuss her behavior at the prior day's meeting.

The general manager testified the purpose of the meeting was to

talk about the way she had reacted and to learn "why she blew

up."

Plaintiff's counsel read into the record deposition

testimony of the assistant manager, who claimed the general

manager began the meeting "by talking to [plaintiff] and asking

if we can get passed this and clear the air. If she had a

problem, we would like to know what it is so that we can talk

about it and we can try to resolve the issues and move forward."

Plaintiff testified she responded by telling them the warnings

"were bullshit and that this happened a million times before and

that one happened ten days — ten days prior to me pressing

charges and I didn't understand how I got two write-ups in one

day after a year of no write-ups."

Plaintiff testified she told the vice president and

managers the warnings were retaliation for her pressing charges

10 A-3691-14T3
against a valued customer of the dealership and that her

"anxiety was high enough that I was throwing up before work."

The general manager responded by telling her that if "the job

makes her feel that physically ill, that it would be in her best

interest to most likely resign."

Plaintiff testified that after that meeting, she decided to

leave the dealership. When her counsel asked why, plaintiff

responded, "Because they decided at the end of the meeting that

if they erased the write-ups then they could pretend this didn't

happen, but at this point I didn't trust them anymore and I just

didn't — it wasn't Joyce Honda to me anymore."

After plaintiff rested, the trial judge granted defendant's

motion for involuntary dismissal, finding the practices

proscribed in N.J.S.A. 10:5-12 "involve conduct by the employer,

not conduct by a customer." In addition, the judge found that

because she filed a complaint in municipal court, rather than

filing a lawsuit or a complaint with the EEOC, plaintiff "has

not filed a complaint in any proceeding under [the Law Against

Discrimination (LAD)]."

The judge concluded by finding "[t]he case does not stand

as against the provision of 10:5-12d" because:

Plaintiff had a perfect right to
complain, to file a police report against
[the customer], who obviously acted
inappropriately. The defendants had a

11 A-3691-14T3
 perfect right to try to discourage her from
doing that because it would be bad with
business. There's nothing wrong in them
doing that.

However, they made it perfectly clear
to her, and she testified that she
completely understood that if she wanted to
file a complaint she could, and indeed, when
she decided that she was ready to file a
complaint it was they who called the police
so that she could make her complaint in the
convenience of the office and in the privacy
of the room where [she] was interviewed by
the police officer.

The court concluded that "as important as the anti-

discrimination law is . . . it simply was not violated in this

case" and dismissed the jury. This appeal followed.

We review a motion for involuntary dismissal at trial using

the same standard as the trial court. Smith v. Millville Rescue

Squad, ___ N.J. ___, ___ (2016) (slip op. at 36-37). Rule 4:37-

2(b) provides that after the plaintiff has rested, the defendant

may move for a dismissal of the action or of
any claim on the ground that upon the facts
and upon the law the plaintiff has shown no
right to relief. Whether the action is
tried with or without a jury, such motion
shall be denied if the evidence, together
with the legitimate inferences therefrom,
could sustain a judgment in plaintiff's
favor.

Thus, "if, accepting as true all the evidence which supports the

position of the party defending against the motion and according

him the benefit of all inferences which can reasonably and

12 A-3691-14T3
legitimately be deduced therefrom, reasonable minds could

differ, the motion must be denied." Verdicchio v. Ricca, 179

N.J. 1, 30 (2004) (quotations omitted). Stated affirmatively,

the motion "should be granted where no rational juror could

conclude that the plaintiff marshaled sufficient evidence to

satisfy each prima facie element of a cause of action." Godfrey

v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008).

In order to prove a case for retaliation under the LAD,

N.J.S.A. 10:5-1 to -49, a plaintiff 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 v. United Parcel Serv., Inc., 214 N.J. 518, 547 (2013)

(quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252,

274 (App. Div. 1996)).

Our Supreme Court has held that a constructive discharge

under the LAD occurs when an employer knowingly permits

conditions of discrimination in employment "so intolerable that

a reasonable person would be forced to resign rather than

continue to endure it." Shepherd v. Hunterdon Developmental

Ctr., 174 N.J. 1, 28 (2002) (quoting Jones v. Aluminum Shapes,

Inc., 339 N.J. Super. 412, 428 (App. Div. 2001)). The Court has

13 A-3691-14T3
explained that "the standard envisions a sense of outrageous,

coercive and unconscionable requirements." Ibid. (quotation

omitted). The heightened standard demanded for proof of a

constructive discharge claim recognizes an employee's

"obligation to do what is necessary and reasonable in order to

remain employed rather than simply quit." Ibid. (internal

quotation marks omitted).

The trial court dismissed plaintiff's claims at the close

of her proofs because it found she could not make out the first

element of her prima facie case, that she had engaged in

protected activity. Specifically, the court found plaintiff's

complaint to the police to report the workplace incident, in

which a customer of her employer tugged down the sleeve of her

shirt revealing her bra, was not protected activity under the

LAD. Plaintiff and amicus, The National Employment Lawyers

Association of New Jersey, Inc., contend the court erred in that

finding. We agree.

The Supreme Court has on numerous occasions noted the LAD

"is, by its terms, see N.J.S.A. 10:5-3, remedial legislation

that was intended to be given a broad and liberal

interpretation." Quinlan v. Curtiss-Wright Corp., 204 N.J. 239,

259 (2010). Its aim is nothing less than the "eradication 'of

the cancer of discrimination.'" Fuchilla v. Layman, 109 N.J.

14 A-3691-14T3
319, 334 (quoting Jackson v. Concord Co., 54 N.J. 113, 124

(1969)), cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed.

2d 51 (1988).

Because N.J.S.A. 10:5-12d makes unlawful "reprisals against

any person because that person has opposed any practices or acts

forbidden under this act or because that person has filed a

complaint, testified or assisted in any proceeding under this

act," and given the "broad and pervasive" scope of the LAD,

Craig v. Suburban Cablevision, Inc., 274 N.J. Super. 303, 310

(App. Div. 1994), aff'd, 140 N.J. 623 (1995), and the case law

interpreting it, we conclude plaintiff's report to the police of

an offensive touching in her workplace by a customer of her

employer clearly constitutes protected activity under the Act.

See Worth v. Tyer, 276 F.3d 249, 265 (7th Cir. 2001) (holding a

plaintiff who reports sexual harassment, in the form of an

offensive touching, to the police clearly "opposes" it within

the meaning of 42 U.S.C. § 2000e-3(a)). "[T]he broad purposes

of the LAD would not be advanced were we to apply so narrow a

focus" as to exclude plaintiff from the protections of the Act

because she complained to the police instead of to the EEOC.

See Battaglia, supra, 214 N.J. at 548.

Resolution of that question of law, however, does not end

our inquiry. Although plaintiff contends the only issue on

15 A-3691-14T3
appeal is whether her report to the police constituted protected

activity, the question before us is actually whether the trial

court's order involuntarily dismissing her lawsuit was

appropriately entered. See Isko v. Planning Bd. of Livingston,

51 N.J. 162, 175 (1968) ("if the order of the lower tribunal is

valid, the fact that it was predicated upon an incorrect basis

will not stand in the way of its affirmance"), abrogated on

other grounds by Commercial Realty & Res. Corp. v. First Atl.

Props. Co., 122 N.J. 546 (1991); State v. Maples, 346 N.J.

Super. 408, 417 (App. Div. 2002) (an appeal is taken from the

court's order rather than reasons for the order).

Plaintiff pursued two claims at trial: retaliation and

constructive discharge.1 We have no hesitation in concluding

plaintiff's claim for constructive discharge was properly

1
Plaintiff and amicus urge us to address whether an employer can
be liable under the LAD for maintaining a hostile environment
based on the discriminatory acts of its customers. Because
plaintiff specifically abandoned her claim of hostile
environment discrimination at trial and proceeded only on claims
of retaliation and constructive discharge, it is not appropriate
for us to opine on that question or the trial court's views on
whether an employer could lawfully attempt to dissuade an
employee from filing a police complaint against a valued
customer in favor of other efforts to end the conduct. See State
v. Robinson, 200 N.J. 1, 19 (2009) ("Appellate review is not
limitless. The jurisdiction of appellate courts rightly is
bounded by the proofs and objections critically explored on the
record before the trial court by the parties themselves."); see
also Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (same).

16 A-3691-14T3
dismissed. Plaintiff claimed after she pressed charges, she

felt isolated and that people were avoiding her, and she

received two written warnings, which she contended were "false"

and issued in retaliation for her pressing charges against a

valued customer of the dealership. Accepting that as true, no

reasonable juror could find that conduct "so intolerable that a

reasonable person would be forced to resign rather than continue

to endure it." Shepherd, supra, 174 N.J. at 28 (quotation

omitted). Her colleagues' coldness and the two attendance

warnings simply cannot suffice to prove a constructive discharge

under New Jersey law.2

2
Our conclusion is not altered by plaintiff's statement to
management that her "anxiety was high enough that I was throwing
up before work," and the general manager's response that if "the
job makes her feel that physically ill, that it would be in her
best interest to most likely resign." We do not address whether
it was reasonable for plaintiff to become physically ill as a
result of the customer's offensive touching. The issue is
whether her reaction was an objectively reasonable response —
not to the touching — but to the employer's retaliation in the
form of her colleagues' coldness and the two warnings to her for
attendance violations. Shepherd, supra, 174 N.J. at 25-29
(noting adoption of objective standard for hostile environment
claims and that constructive discharge claim requires showing
even more egregious conduct); see also Donelson v. DuPont
Chambers Works, 206 N.J. 243, 262-63 (2011) (distinguishing
between constructive discharge claim under the LAD and lost-wage
damages claim under CEPA). Nor was it outrageous for the
general manager to advise plaintiff that she should not come to
work if doing so made her feel physically ill. To the contrary,
it would be wrongful for an employer to force a sick employee to
report for duty.

17 A-3691-14T3
 There is, additionally, another reason for dismissal of

plaintiff's constructive discharge claim. Plaintiff testified

she decided to resign after the meeting with management the day

after she received the two written warnings. When her counsel

asked her at trial why she made that decision, she explained

that the dealership "decided at the end of the meeting that if

they erased the write-ups then they could pretend this didn't

happen, but at this point I didn't trust them anymore and I just

didn't — it wasn't Joyce Honda to me anymore."

The clear import of that testimony is that the dealership,

which called the meeting to address plaintiff's concerns over

the warnings in an effort "to resolve the issues and move

forward," was willing to rescind the warnings and proceed as if

they had never been issued. Instead of accepting the

dealership's offer to rescind the warnings, plaintiff decided to

resign because she "didn't trust them anymore." Because

plaintiff had an "obligation to do what is necessary and

reasonable in order to remain employed rather than simply quit,"

ibid., which she clearly did not fulfill, her constructive

discharge claim was properly dismissed at trial.3

3
Plaintiff contends the trial judge erred in dismissing her case
because another judge had denied defendant's prior motion for
summary judgment on the basis that plaintiff's allegations could
constitute a hostile work environment. We, of course, are not
(continued)

18 A-3691-14T3
 Although whether plaintiff established a prima facie case

of retaliation is a closer question, we conclude judgment

dismissing that claim was appropriate as well. Because we find

plaintiff's complaint to the police was conduct protected under

the LAD, of which the dealership was certainly aware, we are

satisfied plaintiff established the first two elements of her

prima facie case of retaliation. See Battaglia, supra, 214 N.J.

at 547.

We are also satisfied plaintiff put forth sufficient

evidence of a causal link between her police report and the

written warnings to establish the fourth element of her prima

facie case. The timing between the two events, specifically

that the alleged infraction giving rise to the first warning

preceded the police report but the warning was issued after, is

likely sufficiently suggestive of retaliatory motive in itself

to establish that element. See Young v. Hobart West Grp., 385

N.J. Super. 448, 467 (App. Div. 2005). In addition, plaintiff

(continued)
bound by interpretative conclusions of the law by either judge.
See Nicholas v. Mynster, 213 N.J. 463, 478 (2013). The prior
ruling is, in any event, irrelevant because plaintiff did not
pursue a hostile environment claim at trial. The claims
dismissed were for retaliation and constructive discharge.
Further, the Supreme Court in Shepherd made clear "a
constructive discharge claim requires more egregious conduct
than that sufficient for a hostile work environment claim."
Ibid.

19 A-3691-14T3
produced evidence that the general manager had reprimanded her

about talking with her co-workers about the incident with the

customer. That evidence also supported a causal link between

the complaint and the written warnings.

The question is whether the two written warnings

constituted an adverse employment decision, thereby establishing

the third element of plaintiff's prima facie case. As the Court

explained in Roa v. Roa, 200 N.J. 555, 575 (2011), the scope of

actionable retaliatory conduct under the LAD is broader than the

employment-related acts prohibited in N.J.S.A. 10:5-12. In

considering "how harmful an act of retaliatory discrimination

must be" in order to be actionable under the LAD, the Court

adopted the Title VII standard established by the United States

Supreme Court in Burlington Northern & Santa Fe Railway v.

White, 548 U.S. 53, 61, 68, 126 S. Ct. 2405, 2411, 2415, 165 L.

Ed. 2d 345, 355, 359 (2006). Roa, supra, 200 N.J. at 575. The

test is whether "'a reasonable employee would have found the

challenged action materially adverse, which in this context

means it well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.'" Ibid.

(quoting Burlington Northern, supra, 548 U.S. at 61, 68, 126 S.

Ct. at 2411, 2415, 165 L. Ed. 2d at 355, 359) (internal

quotations omitted).

20 A-3691-14T3
 In elaborating on the standard, the United States Supreme

Court explained "[t]he anti[-]retaliation provision protects an

individual not from all retaliation, but from retaliation that

produces an injury or harm." Burlington Northern, supra, 548

U.S. at 67, 126 S. Ct. at 2414, 165 L. Ed. 2d at 359 (emphasis

added). Further, the Court explained the standard is couched

"in general terms because the significance of any given act of

retaliation will often depend upon the particular

circumstances." Id. at 69, 126 S. Ct. at 2415, 165 L. Ed. 2d at

360. The Court emphasized that "[c]ontext matters," because "an

act that would be immaterial in some situations is material in

others." Ibid. (quoting Washington v. Ill. Dep't of Revenue,

420 F.3d 658, 662 (7th Cir. 2005)). Accordingly, accepting that

the two written warnings constituted retaliation, the question

we must answer is whether they produced any "injury or harm" to

plaintiff under these circumstances, that is, whether they can

be considered materially adverse on the facts plaintiff adduced

at trial.

Applying that standard here, we conclude the two written

warnings the dealership provided to plaintiff are insufficient

to establish she suffered an adverse employment action under the

21 A-3691-14T3
LAD.4 To be clear, we accept that written warnings might, in

some circumstances, be materially adverse to an employee — in a

formal system of progressive discipline for instance. We simply

cannot find on the facts that these particular warnings posed

any harm to plaintiff at all.

First, plaintiff produced absolutely no proof of any

tangible injury or harm. Because she quit her job the day after

receiving the warnings, it is impossible to assess their

significance for her continued employment, even leaving aside

defendant's offer to rescind them and "pretend this didn't

happen." Accordingly, the focus is necessarily on the warnings

themselves.

Although plaintiff undoubtedly found the warnings highly

distressing, her subjective response to them is not legally

significant in assessing whether they were materially adverse.

Justice Breyer in Burlington Northern explained the Court chose

an objective standard in requiring a plaintiff to show that a

reasonable employee would have found the challenged action, here

the warnings, materially adverse, because "[a]n objective

4
Plaintiff also alleges she was shunned by co-workers after she
decided to press charges against the customer. Such petty
slights and lack of good manners on the part of co-workers are
insufficient to establish an adverse employment action under the
LAD. See Roa, supra, 200 N.J. at 575; Shepherd, supra, 174 N.J.
at 25-26.

22 A-3691-14T3
standard is judicially administrable. It avoids the

uncertainties and unfair discrepancies that can plague a

judicial effort to determine a plaintiff's unusual subjective

feelings." 548 U.S. at 68-69, 126 S. Ct. at 2415, 165 L. Ed. 2d

at 360. Cf. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 612

(1993) ("An objective reasonableness standard [for judging

whether alleged sexual harassment was sufficiently severe or

pervasive to alter the conditions of employment] better focuses

the court's attention on the nature and legality of the conduct

rather than on the reaction of the individual plaintiff, which

is more relevant to damages.").

Only one of the warnings referenced repercussions to flow

from future infractions, and even that noted only the

possibility, not the promise, of time off without pay or

termination. Moreover, plaintiff testified that within twenty-

four hours of her receiving them, management was willing "to

erase[] the write-ups" and "pretend this didn't happen." Unlike

the defendant's cancellation of plaintiff's health insurance in

Roa, which caused plaintiff and his wife "'financial problems,

damaged their credit rating, subjected them to constant calls

from debt collectors, and caused them a tremendous amount of

stress and anxiety,'" 200 N.J. at 575, or Burlington Northern,

where the plaintiff suffered a more arduous job assignment and

23 A-3691-14T3
the financial effects of a thirty-seven-day suspension without

pay, even though the suspension was eventually reversed and the

plaintiff awarded back pay, 548 U.S. at 71-72, 126 S. Ct. at

2417, 165 L. Ed. 2d at 362, plaintiff can show no discernible

injury or harm flowing from these two written warnings.

Because plaintiff could not show she suffered an adverse

employment decision, she failed to establish the third element

of her prima facie case of retaliation. See Battaglia, supra,

214 N.J. at 547. Her claim was thus properly dismissed at the

end of her case under Rule 4:37-2(b).

Accordingly, because the proofs were insufficient to

sustain a judgment in plaintiff's favor on her claims of

retaliation and constructive discharge, we affirm the

involuntary dismissal of her complaint at trial, even though we

disagree with the trial court's stated reasons for entry of the

order.

Affirmed.

24 A-3691-14T3