S.A. VS. NEW JERSEY DEPARTMENT OF EDUCATION (L-1023-11, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5113-14T3

S.A.,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF
EDUCATION,

Defendant-Respondent.
_______________________________

Argued May 9, 2018 – Decided July 11, 2018

Before Judges Koblitz, Manahan, and Suter.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
1023-11.

Nina Rossi argued the cause for appellant (Law
Offices of William J. Courtney, LLC,
attorneys; Nina Rossi, on the brief).

Noreen P. Kemether, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General,
of counsel; Peter D. Wint, Assistant Attorney
General, on the brief).

PER CURIAM
 Plaintiff S.A.1 appeals from the June 2, 2015 order dismissing

her second amended complaint against defendant New Jersey

Department of Education (DOE), following the jury's verdict in

favor of DOE. We affirm.

I

Plaintiff filed suit against DOE in 2011. Following

amendment, the complaint alleged violations of the New Jersey

Family Leave Act (FLA), N.J.S.A. 34:11B-1 to -16 (Count One); the

Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654 (Count

Two); the New Jersey Conscientious Employee Protection Act (CEPA),

N.J.S.A. 34:19-1 to -14 (Count Three); the New Jersey Law Against

Discrimination (LAD)- perceived disability, N.J.S.A. 10:5-1 to -

49, (Count Four); and the public policy of the State of New Jersey

(Count Five). It also alleged retaliation under LAD (Count Six)

and retaliation under the FLA (Count Seven). Plaintiff claimed

she was retaliated against for her use of family medical leave.

She sought judgment for compensatory damages, lost wages,

emotional distress, punitive damages and attorney's fees.

Counts One (FLA), Two (FMLA) and Five (public policy) were

dismissed with prejudice in February 2015, by an order granting

1
We use initials for privacy purposes because part of the
record is referenced as a confidential appendix.

2 A-5113-14T3
DOE summary judgment. Plaintiff does not appeal the order. 2 The

case was tried to a jury for sixteen days in April and May 2015,

on the remaining counts. On June 2, 2015, the jury returned a

verdict in favor of DOE. An order dismissing the case was entered

the same day.

Plaintiff is an educational program development specialist

(educational specialist) employed by DOE. Her mother, who lived

a distance away in western New York State, suffered a major stroke

in March 2008. Plaintiff traveled back and forth from New Jersey

to assist with her care. She exhausted her paid leave in 2008,

and then used unpaid leave. In February 2009, she was assigned

to DOE's Bergen County Office when the East Orange Office closed.

Two other educational specialists, Norah Peck and Pernell Brice,

were assigned to the Bergen office after her. They had office

space near plaintiff. Plaintiff previously worked with Peck and

had a "friendly" relationship with her.

In 2009, plaintiff exhausted her paid leave time again and

used unpaid "voluntary furlough." Her requests to use

"intermittent family leave" under the FLA were approved. Dr.

Aaron Graham, plaintiff's supervisor in the Bergen office,

2
The CEPA claim in Count Three was dismissed by the court
shortly before trial after plaintiff elected to proceed with the
LAD perceived disability and retaliation claims.

3 A-5113-14T3
testified that he "certainly support[ed]" plaintiff's use of

family leave, which he thought was "a legal entitlement" and "a

good thing" for State employees. However, plaintiff frequently

was late to work or absent for reasons unrelated to her mother's

illness, such as oversleeping or attending her own medical

appointments. At times, plaintiff would report off from work or

call in that she would be late after her scheduled start time.

Plaintiff's unanticipated absences affected the operations of the

office because she would miss meetings and then need to have

information explained to her. She used more time off than other

employees and exhausted her paid leave time by mid-year in 2009.

In the Fall of 2009, plaintiff's relationship with Peck became

strained when on October 2, 2009, Peck had a discussion with

plaintiff, advising plaintiff that because of her absences, Peck

could not rely on her. Although Peck testified she was concerned

that plaintiff was jeopardizing her job, plaintiff interpreted

this conversation as a criticism of her use of intermittent family

medical leave. According to Peck, plaintiff was "vibrating with

rage" and crying during the conversation; she screamed at Peck in

the office. After that, Peck was "nervous" to be around plaintiff;

she was "afraid to have interactions with her." Plaintiff accused

Peck of shutting her out, which she said was "inhumane" and created

a hostile work environment.

4 A-5113-14T3
 Plaintiff's work relationship with Sharon Rosario, another

educational specialist assigned to the Bergen office after Brice

transferred, also was strained. Rosario asserted that plaintiff

sent her multiple emails daily and wanted immediate responses.

Rosario testified about an incident where plaintiff came up behind

her and Peck, screaming at Peck about responding to her emails.

Plaintiff called Peck a "bully" and yelled at Peck as she was

walking away from plaintiff.

Plaintiff interpreted a comment from Graham that she received

in her April 2010 interim performance assessment review (PAR) as

critical of her because of her use of family leave. In the

"Specific Areas Identified for Development" section, he wrote,

"[S.A.] has family support and care giving needs that result in

her making more than usual leave requests. While understanding

her circumstance[s], [S.A.] needs to develop improved ways and

means to increase her days in the office as she meets family

needs." Graham testified that this was a reference to her non-

family leave absences because she had not taken any family leave

during the timeframe covered by that PAR. He wanted her to spend

more time in the office on non-family leave days. He spoke to her

about her use of non-family leave time. She received a

"satisfactory" rating on the PAR, checked the box on it that said

she agreed with it, and signed it. John E. Boreman, DOE's County

5 A-5113-14T3
School Business Administrator in the Bergen office, talked to

plaintiff about her non-family leave attendance issues; he would

not permit her to work through her lunch. Plaintiff's pattern of

unscheduled leave continued. She used more non-family leave time

than others.

Plaintiff testified that Peck and Rosario "shunned" and

"isolated" her professionally. Plaintiff wanted the education

specialists to be able to share their work calendars even though

she had access to them through the Superintendent's secretary.

She wanted to move her office closer to Peck and Rosario. Graham

did not grant her requests.

When Graham retired in November 2010, plaintiff asked for a

reassignment, mentioning the issues with Peck and Rosario in her

email to Dodi Price, DOE's Director of Human Resources and to

David Corso, then DOE's Director of Administration. Plaintiff

claimed Peck created a hostile work environment because of

plaintiff's use of family medical leave, Peck and Rosario excluded

her from activities in the office, she had "high anxiety and even

higher blood pressure levels" and could not "tolerate working

under these conditions."

Plaintiff was referred to Mabel Williams, the Affirmative

Action (AA) Officer and manager of the Equal Employment Opportunity

(EEO) Office, after she emailed Corso and Price that she was

6 A-5113-14T3
"depressed," "losing sleep and suffering blood pressure increase"

and "sick" because of Peck and Rosario. After plaintiff and

Williams talked, Williams told plaintiff that none of the behaviors

she described "violate[d] the State [p]olicy." Williams did not

think plaintiff had been discriminated against. Williams

suggested that plaintiff, Peck and Rosario attend mediation about

the workplace issues. Although plaintiff was willing to do so,

Peck and Rosario did not want to mediate "because they d[id] not

believe it would be productive." Williams told plaintiff this on

February 3, 2011. Plaintiff emailed Williams "IS THERE NO ONE

AT NJDOE WHO CAN STOP THIS BEHAVIOR OF MY COLLEAGUES? DO I HAVE

TO WITHSTAND THE OSTRACIZATION [sic] by them without remedy?"

After Williams replied that Human Resources would be in touch,

plaintiff emailed Williams, copying Price and Corso:

who is that? I need to know. And who is it
who will be in touch? I can't face work
tomorrow . . . . I can't do it. The very
fact that my colleagues say it would be
unproductive tells me all . . . they have no
need to care and this will go on without relief
. . . no one seems to care. No one . . . .
I'm sick, I'm sick . . . . I can't do this
an[y]more.

Although Williams originally had recommended plaintiff's

referral to the Employee Advisory Services (EAS) for counseling,

she recommended to Price that "immediate action be taken" based

7 A-5113-14T3
on the "urgent need for help" emphasized in the email. Price was

concerned from the email that plaintiff "may hurt herself."

Plaintiff was directed to attend an evaluation scheduled for

her by DOE with Dr. Carl Chiappetta, a psychiatrist, to evaluate

if she was fit for duty or a danger to herself or others. During

the evaluation on February 28, 2011, plaintiff became concerned

about proceeding without first consulting her attorney or union

representative because Dr. Chiappetta explained he had been given

a file about plaintiff by DOE's Human Resources Department, and

she left the appointment. It was rescheduled, but Price advised

her that she could be subject to discipline if she did not attend

the next scheduled evaluation. Plaintiff was placed on paid leave.

The evaluation was conducted on March 17, 2011. Dr.

Chiappetta wrote in a "stat report" that day that plaintiff should

receive professional counselling and not return to work for two

months. He issued a more complete report on March 18, 2011, that

reached the same conclusion. Plaintiff was placed on

administrative leave for two months without pay. She received

counselling, that she arranged privately, from Dr. Jane Sofair, a

psychiatrist who had treated her in the past. Price told plaintiff

that before she could return to work, there would need to be a

meeting to "clearly outline what the expectations are regarding

acceptable office behavior."

8 A-5113-14T3
 Plaintiff filed suit against DOE in April 2011, seeking

damages, lost wages, punitive damages and attorney's fees. The

parties attempted to resolve the issues. In a letter dated July

1, 2011, DOE's attorney proposed settlement terms that included

transferring plaintiff to work for James McBee at DOE's Office of

School Improvement in Trenton. Plaintiff rejected the settlement

offer.

On July 20, 2011, Dr. Chiappetta issued a report, finding

that plaintiff was fit for duty. Price advised plaintiff by letter

that she was cleared to return to work and to follow Dr.

Chiappetta's recommendation for outpatient treatment and

prescribed medications. Price enclosed a guide for appropriate

office conduct prepared by a Deputy Attorney General and attached

a copy of a portion of the Administrative Code concerning "causes

for discipline." She returned to work at the Bergen office on

July 25, 2011. Plaintiff continued to email about being excluded

by colleagues; she alleged that DOE had not investigated her claims

about retaliation for her use of family medical leave.

Plaintiff asked for a transfer to DOE's Sussex office. She

was not selected for that position. Plaintiff contended that

Rosalie Lamonte, the Sussex County Superintendent, asked plaintiff

during the interview about her use of voluntary furlough, a claim

denied by Lamonte. She said it was plaintiff who mentioned taking

9 A-5113-14T3
leave time. Plaintiff was transferred to DOE's office in Trenton

under McBee's supervision in November 2011.

A jury trial was conducted in April and May 2015. After

sixteen days of trial, on June 2, 2015, the jury found for DOE on

all counts that remained. The court dismissed the case.

On appeal, plaintiff claims that errors by the trial court

require reversal and retrial. Plaintiff contends the trial court

erred by not determining that it was unconstitutional for a public

employer to require, based on N.J.A.C. 4A:6-1.4(g), a public

employee to undergo a fitness for duty psychiatric evaluation

without notice or an opportunity for a hearing. She argues the

trial court committed reversible error by admitting into evidence

and by allowing testimony about a file of documents that related

to her non-FMLA absences. She claims she was denied access to

those records when she requested, pretrial, to review them. She

contends the court erred by allowing testimony about her past

mental health treatment. She asserts the court made erroneous

evidentiary rulings by denying the admission as evidence of a DOE

letter that offered her settlement terms, permitting testimony

about a document that listed "acceptable" office behaviors,

admitting reports from a psychiatrist who examined plaintiff for

DOE, and by not allowing time for plaintiff to produce a witness.

Plaintiff argues the court erred by not charging the jury

10 A-5113-14T3
separately on the claim of perceived disability discrimination.

There is no merit to any of these issues.

II

"In reviewing a trial court's evidential ruling, an appellate

court is limited to examining the decision for abuse of

discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing

Brenman v. Demello, 191 N.J. 18, 31 (2002)). The general rule as

to the admission or exclusion of evidence is that "[c]onsiderable

latitude is afforded a trial court in determining whether to admit

evidence, and that determination will be reversed only if it

constitutes an abuse of discretion." State v. Feaster, 156 N.J.

1, 82 (1998) (citations omitted); see also State v. J.A.C., 210

N.J. 281, 295 (2012). Under this standard, an appellate court

should not substitute its own judgment for that of the trial court,

unless "the trial court's ruling 'was so wide of the mark that a

manifest denial of justice resulted.'" State v. Marrero, 148 N.J.

469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

A

The trial court allowed the admission into evidence of

plaintiff's attendance records that were kept in a file maintained

in the Bergen office. The records showed her non-family leave

absences and late arrivals from 2009 to 2011. The file was

provided to plaintiff during discovery, although it was not shown

11 A-5113-14T3
to her in 2010, prior to when her lawsuit was filed. Corso told

her then that the records could not be used for legal purposes.

Although plaintiff objected to its introduction, the court

found that plaintiff "opened the door to her attendance record via

her testimony during direct examination." The records also were

admissible "for impeachment purposes as [p]laintiff claimed that

she 'accounted for all of her leave time.'" The court observed

that

[t]he communications by plaintiff evidencing
reasons for use of leave time will allow
[d]efendant to establish what leave time was
used for what purpose. This is central to
issues at bar as [p]laintiff can only recover
for retaliation for certain categories of used
leave time.

There was no abuse of discretion by the trial court in

admitting these records into evidence. Plaintiff's case centered

on her allegation that she was discriminated and retaliated against

because of her use of family medical leave. Graham and Price

testified that it was her other absences, many of which were not

pre-approved, that had an operational impact on the office. The

records in question were relevant to show the other reasons for

plaintiff's absences that did not relate to her use of family

medical leave.

The court found that plaintiff had opened the door to this

issue by testifying about her attendance record. See State v.

12 A-5113-14T3
James, 144 N.J. 538, 554 (1996). To rebut her claim of

discrimination or retaliation, her employer needed to prove

legitimate and non-discriminatory reasons for its actions. See

Depalma v. Bldg. Inspection Underwriters, 350 N.J. Super. 195,

213-4 (App. Div. 2002) (providing that "the necessary elements and

proofs" of an FLA retaliation claim "must follow the pattern

applicable to claims under the [LAD]."). The records were

probative of DOE's reasons for its actions.

We agree that the admissibility of the records did not depend

on whether they were or could be used by DOE for disciplinary

purposes. The records were provided to plaintiff in discovery.

She had every opportunity to explore the issues raised by them

before trial. Therefore, there was no misuse of discretion by the

trial court in admitting this evidence, which was relevant,

probative and not unduly prejudicial. See N.J.R.E. 401.

B

Plaintiff claims the court erred by permitting testimony

about her past mental health treatment. She testified that she

had seen a psychiatrist for limited periods since 1987 for

depression. Her family doctor prescribed anti-depressant

medication for her for over twenty years. Her lawsuit against DOE

sought damages for emotional distress, stress and anxiety due to

discrimination and retaliation.

13 A-5113-14T3
 The past treatment was relevant to her damage claims based

on her testimony. We discern no misapplication of discretion by

permitting testimony about plaintiff's mental health treatment

under these circumstances. She raised the issue about depression

and medication. Her doctor's testimony that she showed "anxiety

. . . secondary to hostile workplace," tended to support her claim

and thus evidence that she had psychiatric difficulties prior to

working in this environment was not unduly prejudicial.

C

The trial court denied plaintiff's request to place in

evidence a July 1, 2011 letter from DOE's attorney that proposed

settlement of the litigation. Plaintiff contended this letter was

proof of DOE's retaliation because it conditioned plaintiff's

transfer to another office on her dismissal of this litigation and

release of all claims. Plaintiff rejected the settlement offer.

She alleged she was entitled to a transfer without conditions.

The court denied admission of the letter under N.J.R.E. 408, but

did permit plaintiff to testify that DOE "sought to have [her]

drop her lawsuit in exchange for a transfer."

We agree that the offer of settlement was properly excluded.

N.J.R.E. 408 provides that settlement proposals are generally not

"admissible to prove liability for . . . the disputed claim." See

Brown v. Pica, 360 N.J. Super. 565, 568 (Law Div. 2001). There

14 A-5113-14T3
is an exception where the evidence is "offered for another

purpose."

The letter did not prove plaintiff had a right to transfer.

See Klusaritz v. Cape May Cty., 387 N.J. Super. 305, 317 (App.

Div. 2006) (proving no "right" to any government job). The letter

offered to transfer her to a position under McBee. He would accept

administrative transfers although there was no posted vacancy for

the position. She also was not prejudiced because the trial court

allowed her to argue to the jury that she was denied the transfer

because she would not settle the case.

D

Dr. Chiappetta issued four reports. These included a March

17, 2011 "stat" report that stated plaintiff was "unable to work;"

a March 18, 2011 "Psychiatric Fitness for Duty Evaluation/Risk

Assessment," reaching the same conclusion and making

recommendations for outpatient treatment; an April 26, 2011 letter

explaining the March 18, 2011 assessment; and a July 20, 2011

summary that concluded plaintiff was fit for duty. Plaintiff

contends the trial court erred by admitting into evidence three

of Dr. Chiappetta's reports.

The court barred admission of Dr. Chiappetta's March 18, 2011

report toward the end of the trial, finding it was not a business

record under the hearsay exception. See N.J.R.E. 803(c)(6). By

15 A-5113-14T3
that time, it was clear that DOE was not going to call Dr.

Chiappetta to testify. The other reports were already in evidence

and the jury had heard testimony about them.

We agree with the court that the March 18, 2011 report was

not a business record. Although it was part of DOE's file, its

reliability had not been established. See N.J.R.E. 803(c)(6)

(providing that the "sources of information or the method, purpose

or circumstances of preparation" must indicate trust and

worthiness). The report could have been admitted, however, as a

non-hearsay statement.

Hearsay is "a statement, other than one made by the declarant

while testifying . . . offered in evidence to prove the truth of

the matter asserted." N.J.R.E. 801.

Statements that might otherwise be hearsay may
be admissible if they are not offered to prove
the truth of the matter asserted. See
N.J.R.E. 801(c); State v. Long, 173, N.J. 138,
152 (2002). Indeed, "where statements are not
offered for the truthfulness of their
contents, but only to show that they were in
fact made and that the listener took certain
action as a result thereof, the statements are
not inadmissible hearsay," Spragg v. Shore
Care, 293 N.J. Super. 33, 56 (App. Div. 1996)
(citation omitted); see also Jugan v. Pollen,
253 N.J. Super. 123, 136 (App. Div. 1992).

[El-Sioufi v. St. Peter's Univ. Hosp., 382
N.J. Super. 145, 164 (App. Div. 2005).]

16 A-5113-14T3
 In El-Sioufi, plaintiff alleged employment discrimination in

violation of LAD based on her religion. She contended that a

certification and information from a file, containing complaints

about her, should not have been considered by the trial judge on

summary judgment. We found that the statements relied on by

defendants "were relevant" to show its basis for reassigning her.

Ibid. The issue was not whether the information in the file was

true; but whether defendants "acted reasonably in light of that

information." Id. at 165.

In Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354 (2007),

the Court held that "within the usual limits that govern the

admissibility of evidence as a whole, an investigative report

concerning an employee is admissible as non-hearsay statements

whenever the employer's motivations are directly at issue." Id.

at 376.

The issue here was not whether plaintiff actually was fit for

duty. Rather, the March 17, 2011 "stat" report and the March 18,

2011 follow-up report were relevant in explaining the DOE's

"legitimate and non-discriminatory" action in placing plaintiff

on administrative leave, which was part of DOE's defense to the

LAD claim. The March 17, 2011 "stat" report also contained a

statement from Dr. Chiappetta that "upon return to work, have

supervisor meet with her and establish very clear 'expectations'

17 A-5113-14T3
about what is acceptable behavior or not." That language was

relevant to DOE's defense about creating a list of acceptable

behaviors that plaintiff challenged as retaliatory conduct by DOE.

Thus, admission of these documents for non-hearsay purposes was

appropriate.

The April 26, 2011 letter from Dr. Chiappetta was in response

to DOE's letter asking him "to expand upon [his] findings." His

response was that

[h]er problematic behaviors have been well
documented, and have caused much tension,
fear, disruption and loss of efficiency.
Those factors have effected [sic] the way
ordinary day to day business has been
conducted in her workplace, on the part of her
co-workers and superiors.

That letter simply reiterated the operational effects that other

DOE witnesses testified about. Its admission was not prejudicial

to plaintiff.

The July 20, 2011 report by Dr. Chiappetta stated that

plaintiff was fit for duty. Admission of the report to show that

the statements were made and that the "listener took certain action

as a result thereof," El Sioufi, 382 N.J. Super. at 164, was for

non-hearsay purposes. The report opined that plaintiff was fit

for duty and did not pose any danger to herself or others. Although

the better approach might have been to redact Dr. Chiappetta's

diagnoses from the document, see N.J.R.E. 808, we cannot say it

18 A-5113-14T3
was unduly prejudicial to plaintiff or "clearly capable of creating

an unjust result." R. 2:10-2.

E

Plaintiff claims the court erred in allowing testimony about

her attorney's March 29, 2011 letter that provided "[i]f there is

a list of acceptable office behaviors that exists at my client's

place of employment, I would ask that this list be forwarded to

me so that I may review the same with my client prior to her return

to work." DOE relied on the letter to argue that plaintiff asked

for a list of acceptable behaviors, while plaintiff argued this

was simply more evidence of retaliation by DOE.

We discern no error by the trial court's exercise of

discretion here. Plaintiff was permitted to argue that her

attorney was not asking DOE to create a list of acceptable

behaviors but wanted DOE to provide this information if it already

existed. DOE was permitted to argue that plaintiff requested the

list of behaviors. The jury heard both sides of this issue. After

carefully reviewing the record, we conclude that plaintiff's

arguments about this issue are without sufficient merit to warrant

further discussion in a written opinion. R. 2:11-3(e)(1)(E).

19 A-5113-14T3
 F

Plaintiff argues the court erred by not delaying the trial

so that she could subpoena Robert Gilmartin for limited rebuttal

testimony. We find no abuse of discretion.

Gilmartin was the Bergen County Superintendent after Graham

retired. In a May 20, 2015 order, the trial court rejected

plaintiff's request for an adverse inference charge when DOE did

not call Gilmartin as a witness. The court reasoned that Gilmartin

was available to both parties as a witness because he no longer

was employed by DOE.

Plaintiff then attempted to subpoena Gilmartin to rebut

certain limited testimony, but he was out of state and no one knew

when he would be available to testify. The court denied

plaintiff's request to delay the trial for his testimony on

rebuttal.

The trial court must "weigh in the balance the concern of the

law for orderly and efficient administration of the jury process."

State v. Garfole, 76 N.J. 445, 457 (1978). Evidence Rule 403

allows the court to exclude evidence to avoid "undue delay, waste

of time, or needless presentation of cumulative evidence."

N.J.R.E. 403.

Plaintiff wanted to call Gilmartin as a witness but did not

actually know when he would be available to testify. His testimony

20 A-5113-14T3
was proffered to rebut other witnesses whose cross-examination

already had elicited testimony about the weaknesses plaintiff

sought to explore through Gilmartin. In these circumstances,

there was no abuse of discretion by declining to further delay the

trial.

G

Plaintiff claims the court's jury instruction on

discrimination constituted reversible error. She wanted a

separate instruction to the jury on discrete acts of discrimination

in addition to the hostile work environment instruction. In

rejecting this request, the court found that plaintiff's claim for

discrimination encompassed her "claim for hostile work environment

under LAD based on perceived disability." "The discrimination

. . . in this case was the hostile work environment itself." The

court declined to charge on discrete acts of discrimination.

In reviewing the adequacy of the judge's charge to the jury,

we must consider the charge as a whole in determining whether it

was prejudicial. See State v. Figueroa, 190 N.J. 219, 246 (2007)

(citing State v. Wilbely, 63 N.J. 420, 422 (1973)). "[A]ppropriate

and proper jury charges are essential for a fair trial." State

v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish,

181 N.J. 553, 613 (2004) (citation omitted)); State v. Collier,

90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287

21 A-5113-14T3
(1981)). "[E]rroneous jury instructions constitute [] reversible

error where the jury outcome might have been different had the

jury been instructed correctly." Washington v. Perez, 219 N.J.

338, 351 (2014).

A hostile environment claim under LAD is different from a

discrete act claim. Regarding hostile environment claims,

[t]heir very nature involves repeated conduct.
The 'unlawful employment practice' therefore
cannot be said to occur on any particular day.
It occurs over a series of days or perhaps
years and, in direct contrast to discrete
acts, a single act of harassment may not be
actionable on its own. Such claims are based
on the cumulative affect of individual acts.

[Shepherd v. Hunterdon Developmental Ctr., 174
N.J. 1, 19 (2002) (quoting Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 105
(2002)).]

There was nothing erroneous or prejudicial about the judge's

charge to the jury. Plaintiff's Count Four did not allege discrete

acts of discrimination.

H

Plaintiff contends she was constitutionally entitled to

notice and an opportunity for a hearing before she was required

to undergo a fitness for duty examination.

It is well-settled that appellate courts "will decline to

consider questions or issues not properly presented to the trial

court when an opportunity for such a presentation is available

22 A-5113-14T3
'unless the questions so raised on appeal go to the jurisdiction

of the trial court or concern matters of great public interest.'"

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting

Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.

Div. 1959)).

Plaintiff failed to plead a constitutional claim in her

complaint. An appellate court should not recognize a cause of

action not pleaded in the plaintiff's complaint. Bauer v. Nesbitt,

198 N.J. 601, 610 (2009). Plaintiff also advised the court that

she did not want it to decide the constitutionality of the fitness

for duty examination and was raising the issue to argue against

admission of Dr. Chiappetta's reports.

That said, plaintiff had notice and an opportunity to contest

the examination. When she was first scheduled for the examination,

she appeared and then left because she wanted the opportunity to

consult with her attorney. She consulted with a union

representative, the examination was rescheduled, and she attended.

There was ample opportunity between the two examinations for

plaintiff to assert that she wanted a hearing or to ask for relief

under her contract but she did not do so. Therefore, we have no

need to reach the constitutionality of the regulation cited by DOE

as the basis for the examination.

Affirmed.

23 A-5113-14T3