CORAL MASON VS. SAKER SHOPRITES, INC. (L-2539-16, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3227-17T3

CORAL MASON,

Plaintiff-Appellant,

v.

SAKER SHOPRITES, INC.,
ROSE SCRIPKO, and NICK MOY,

Defendants-Respondents.
_____________________________

Argued March 13, 2019 – Decided July 8, 2020

Before Judges Fuentes, Accurso and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-2539-16.

Richard Armen Mc Omber and Elizabeth A. Matecki
argued the cause for appellant (McOmber & McOmber,
PC, attorneys; Richard Armen Mc Omber, Christian V.
Mc Omber, Matthew Allen Luber, and Elizabeth A.
Matecki, of counsel and on the briefs).

Ari G. Burd argued the cause for respondents (Giordano
Halleran & Ciesla, PC, attorneys; Jay S. Becker, of
counsel; Ari G. Burd, of counsel and on the brief).
 The opinion of the court was delivered by

FUENTES, P.J.A.D.

In August 2015, Saker ShopRites, Inc. (Shoprite) hired plaintiff Coral

Mason to work as a food service clerk. Plaintiff received an employee handbook

that contained and described Shoprite's sexual harassment policy. Plaintiff also

signed an acknowledgment form confirming that she had read the employee

handbook and agreed to comply with the policies listed therein. Plaintiff

resigned from her position four months after she was hired.

On April 25, 2016, plaintiff filed a two-count complaint predicated on

alleged violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to

-49, against ShopRite; Rose Scripko, the store's food service manager; and Nick

Moy, the manager of human resources. Count one alleged a hostile work

environment caused by pervasive sexual harassment; Count two asserted

retaliation and constructive discharge. Seven weeks before the discovery end

date, plaintiff moved to amend her complaint to include a third count alleging

retaliation under the Conscientious Employee Protection Act (CEPA), N.J.S.A.

34:19-1 to -14.

The judge assigned to manage the case denied plaintiff's motion to amend

the complaint in an order dated July 7, 2017. The judge also denied plaintiff's

A-3227-17T3
2
motion for reconsideration in an order dated August 18, 2017. The court

scheduled the case for trial on March 19, 2018. Defendants moved for summary

judgment fifty-one days before the scheduled trial date. The judge heard

argument on defendants' motion on February 16, 2018 and entered an order

granting summary judgment on February 20, 2018.

In this appeal, plaintiff argues the motion judge: (1) erred in denying her

motion to amend her complaint to include a CEPA cause of action, and (2)

misapplied the standard codified in Rule 4:46-2(c) when he granted defendants'

motion and dismissed plaintiff's complaint with prejudice. We reject these

arguments and affirm.

I

Plaintiff was thirty-four years old when she began working at ShopRite in

August 2015. She immigrated from Turkey in 2010 and is a graduate of Istanbul

University with a degree in journalism. At her deposition taken in September

2017, plaintiff testified she sought employment at ShopRite on the internet and

specifically applied for a position "in the departments [for] food service, bakery,

fish, [and] seafood." She testified that she was interviewed by defendant Nick

Moy. At her deposition, plaintiff acknowledged she received a copy of the

"ShopRite Associate Handbook" (Handbook) on July 25, 2015, and that Moy

A-3227-17T3
3
told her he was available if she had any questions about the policies contained

therein. The appellate record also includes plaintiff's signed acknowledgement

attesting to having received a copy of the Handbook.

The Handbook detailed ShopRite's personnel policies, including a policy

on sexual harassment, which stated:

Each supervisor has an affirmative duty to maintain
his/her workplace free of sexual harassment. This duty
includes discussing this policy with all Associates and
assuring them that they are not permitted to engage in
and are not required to endure exploitative sexual
treatment. Similarly, every Associate has an affirmative
duty to comply with [ShopRite's] policy. Specifically,
no person shall threaten or insinuate, either explicitly
or implicitly, that an Associate's refusal to submit to
sexual advances will adversely affect the Associate's
employment, evaluation, wages, advancement,
assigned duties, shifts, work environment, or any other
condition of employment or career development.

Any Associate who believes that he/she has been the
subject of harassment should report the alleged act
immediately to the Store Manager and/or the Human
Resources Department for investigation. All actions
taken to resolve complaints of harassment through
internal investigation shall be conducted confidentially.
After appropriate investigation, any Associate who has
engaged in harassment will be subject to disciplinary
action up to and including discharge.

Plaintiff's duties included stocking the hot food bar with premade food in

the morning, ensuring the hot food bar was stocked during the day, and cleaning

A-3227-17T3
4
it up in the evening; this involved throwing the leftover food in the store's

compost bin. Plaintiff viewed defendant Rose Scripko as her supervisor, a

perception reinforced by ShopRite's description of Scripko's duties in response

to one of plaintiff's interrogatories dated October 28, 2016:

Ms. Scripko currently holds the position of Clerk also
known as a food service manager for the Hazlet Saker
location. Ms. Scripko is a member of a union and as
such, lacks authority to discipline employees, such as
Ms. Mason. She has held this position since 2011.

In the course of her deposition, plaintiff identified three men whom she

believed were the store's managers: "Mr. Wheeler, Mr. Frank, and there was

another man, but I don't remember his name." Plaintiff also testified that she

"got along" with defendant Scripko at first, but it changed when: "I complained

to her about some issues that were going on and then her behavior towards me

changed." Defense counsel asked plaintiff to explain:

Q. What . . . did you complain to [Scripko] about?

A. I complained about theft going on in the store by
some co-workers. And I complained about food service
people, you know, theft, I mean taking the food and
cooking -- which was ShopRite's -- ShopRite's...

Q. Property?

A. Property, using it and cooking it behind the counter
and serving it to people that worked in the store for free.

A-3227-17T3
5
 So I complained, I told her and she disregarded it. She
just kept -- just she did nothing basically.

Defense counsel also asked plaintiff to identify the incidents of sexual

harassment she experienced. According to plaintiff, she complained to Scripko

"about Solomon Adeyefa and other male workers that were pressuring me,

making me feel like a piece of meat every time I went in the morning, every

time I got in . . . that store. So I complained about that, too." Plaintiff identified

Adeyefa as a food service clerk. She provided the following description of

Adeyefa's alleged lascivious comments and behavior:

One afternoon, I came to my shift and I think he was
about to leave, and we were supposed to put [on] hair
nets, we were supposed to put our hair in a hair net, and
I came in and I was putting my hair in a net and out of
nowhere he came to me and asks me if I just had sex
before I came to work, and I was not expecting that. I
don't even talk [about] this type of subjects with my
friends even, and let alone in a working environment.
And I was shocked. And he said that and he left. And
that's what happened.

Plaintiff testified there were three other coworkers present when Adeyefa

allegedly made these comments to her. She identified them as "Charlie, Nancy

. . . and I think Tomina." According to plaintiff, up to this incident, her

relationship with Adeyefa had been "professional." Plaintiff claimed she was so

"shocked" by Adeyefa's uncharacteristic behavior and "felt so bad" that she did

A-3227-17T3
6
not say anything to him before he left. When she regained her composure, she

spoke with "Charlie who is one of the chefs working there and he told me to go

to manager, go to management." However, Nancy Canzoneri, a coworker whom

plaintiff viewed as "higher up to me," suggested that she confront Adeyefa

directly and tell him she was offended by his remark.

Plaintiff testified that she followed Canzoneri's suggestion and confronted

Adeyefa the following day. In response to defense counsel's question at her

deposition, plaintiff provided the account of Adeyefa's reaction:

I told him that I didn't like the way he talked to me and
he thanked me for not going to the management. That's
all.

Q. Did he -- well, did he apologize to you?

A. No. He said he's not going to do it again and he
thanked me for not going to the management.

According to plaintiff, Adeyefa did not keep his promise. Plaintiff alleged

she overheard Adeyefa tell a male coworker "I would hit that" about a woman

who worked in the salad bar. Plaintiff told the female coworker about Adeyefa's

remark. According to plaintiff, the woman at the salad bar seemed unconcerned

about Adeyefa's remark. She told plaintiff: "he's like that, he says these things

and they went through that with him."

A-3227-17T3
7
 Defense counsel also read to plaintiff the following two allegations of

sexual harassment she made in her complaint to ascertain with greater specificity

what actually occurred:

"Plaintiff took food out to the compost in the back of
the store. When plaintiff returned, she mentioned that
her hands were dirty. A male employee stated loudly
and in a sexual manner to other co-workers, 'Oh, she
likes it dirty.'" Can you tell me who . . . the employees
are that are being referenced here, if you recall?

A. I don't remember their names.

....

Q. Can you tell me anything more about this? For
example, were there other people there when this
happened?

A. There were other workers. I don't know their name.
They were not food service workers.

Defense counsel read the second alleged incident of sexual harassment

aloud to plaintiff:

Q. Just again, I'm going to read aloud from the
complaint. "During another shift, a male employee was
bringing gloves into the food service area and stated to
plaintiff, 'I need extra[-]large gloves.' A male coworker
responded in a lewd manner, 'Oh, you're telling the
ladies you're extra[-]large.'" Again, I'm just trying to
get more information about this.

A. Okay.

A-3227-17T3
8
Q. Do you recall who these employees are who are
referenced here?

A. Yes.

Q. And who are they?

A. It was Mr. Frank who . . . he's the one who usually
brings the supplies, like gloves, paper towels and stuff
like that. So it was Frank, Mr. Frank, he brought -- who
brought gloves, box of gloves, and he asked Tyrell
Matthews. And I was -- I was there. It was him, Tyrell
and me in the same area where I could hear, and he said,
"What size gloves do you want." And Tyrell said he
wants extra[-]large gloves. And Mr. Frank said, and
he's the store manager, he said, "Oh, are you telling the
ladies that you're extra[-]large."

Q. This was a conversation between Mr. Frank and Mr.
Tyrell?

A. Yes.

Q. Okay. And you . . . how did you overhear this?

A. Because they were loud, they -- I can't say it was a
conversation because he was, Oh, are you telling the
ladies, he was loud. I was there so I could hear it.

A. Yes.

Q. -- them back and forth? Okay.

A. It was not a conversation like we are having right
now.

A-3227-17T3
9
 Plaintiff also alleged that she witnessed "Angelo the maintenance man"

touch Nancy Canzoneri, a person whom plaintiff considered to be her immediate

supervisor, in an inappropriate manner. Specifically, plaintiff alleged Angelo

touched Canzoneri on her "butt," causing Canzoneri to say: "stop touching my

butt." Plaintiff also testified in her deposition that Canzoneri "wasn't . . .

bothered by it. She . . . didn't seem annoyed because it was like a -- kind of like

giggle." This prompted defense counsel to ask plaintiff the following question:

Q. So why did this stand out to you? What about this
did you have a problem with or did you think was
wrong?

A. I thought it was wrong. It wasn't professional. And
it didn't seem right to me, that this was happening after
I complained about sexual harassment, this kind of
behavior and speech will be tolerated between the
workers, and Nancy, who was higher up from me,
would tolerate that. And it was obvious to me that that's
why they weren't really be careful about it.

Plaintiff also complained about seeing a woman employee lift up a piece

of raw chicken and yell to other women coworkers that it looked like female

genitalia. Plaintiff condemned this behavior as "unprofessional jokes,

comments, sexually-inappropriate comments." Plaintiff described the final

allegation of sexual harassment by a male coworker as follows:

There were many sexual comments which made me just
feel like a piece of meat every time I went to the store.

A-3227-17T3
10
 And at one time again I was taking the compost out and
I asked for help from one of the male workers and he
said to me -- I asked something and he said, "You can
ask anything with that accent, it's so sexy." That's what
he said.

Q. Do you recall who that was?

A. I know . . . I remember his face, I don't know his
name.

Plaintiff resigned from her job at ShopRite in December 2015.

II

We start our analysis by addressing the judge's decision to deny plaintiff 's

motion to amend her complaint to include a CEPA cause of action. Defendants

filed their responsive pleading on June 3, 2016, and the case was assigned a

"Track III" designation for discovery purposes. See R. 4:5A-1. This gave the

parties 450 days of discovery and established a discovery end date of August 27,

2017. The judge assigned to manage this litigation extended the discovery end

date to December 17, 2017. Nearly a year after joinder of issue, plaintiff moved

to amend her complaint to add a third count for retaliation under CEPA.

Plaintiff's counsel submitted a certification in support of the motion in which

she stated that when plaintiff was deposed by defendants' counsel on May 25,

2017, she

A-3227-17T3
11
 testified that she witnessed illegal and/or unlawful
conduct by employees of . . . ShopRite. Specifically,
[p]laintiff testified that she witnessed employees of . . .
ShopRite stealing food and smoking marijuana during
their work shifts.

4. At her deposition, [p]laintiff further testified that she
complained and/or protested against such illegal and/or
unlawful conduct. Additionally, [p]laintiff testified that
following her complaints of such illegal and/or
unlawful conduct, [p]laintiff was subjected to
retaliation and ultimately constructively terminated as
a result of same.

The judge provided the following explanation in support of his decision:

Plaintiff is seeking to add CEPA claims which were not
included when this complaint was filed on April 25,
2016, although all facts were known to plaintiff at the
time and the discovery end date is seven weeks away.
Further, plaintiff argues that although the facts were
obviously known to her, that they were neither
"significant nor clear" at the time of filing, but offers
no basis for the lack of clarity. Lastly, plaintiff asserts
that "new fact witnesses were identified" during her
own deposition, which are neither identified nor is there
an explanation of how this occurred.

Rule 4:9-1 codifies the relevant standard to amend a pleading:

A party may amend any pleading as a matter of course
at any time before a responsive pleading is served or, if
the pleading is one to which no responsive pleading is
to be served, and the action has not been placed upon
the trial calendar, at any time within 90 days after it is
served. Thereafter a party may amend a pleading only
by written consent of the adverse party or by leave of
court which shall be freely given in the interest of

A-3227-17T3
12
 justice. A motion for leave to amend shall have
annexed thereto a copy of the proposed amended
pleading. A party shall plead in response to an amended
pleading within the time remaining for response to the
original pleading or within 20 days after service of the
amended pleading, whichever period is longer, unless
the court otherwise orders.

[(Emphasis added).]

"[T]he granting of a motion to file an amended complaint always rests in

the court's sound discretion." Kernan v. One Washington Park Urban Renewal

Assocs., 154 N.J. 437, 457 (1998). Indeed, our Supreme Court has made clear

that motions seeking to amend a complaint are to be "granted liberally." Id. at

456. However, a court's discretion under this rule is subject to limits. Notte v.

Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006).

In Notte, the Court explained that a trial court's ruling under Rule 4:9-1

must satisfy a two-step process. Ibid. First, the trial court must determine

"whether the non-moving party will be prejudiced" by the amended complaint.

Ibid. When plaintiff's proposed amendment to the original complaint is based

on the same underlying facts set forth in the original pleading, a defendant is not

prejudiced. Ibid. However, a party can be prejudiced when the amended

complaint results in "undue delay." Tomaszewski v. McKeon Ford, 240 N.J.

Super. 404, 411 (App. Div. 1990). If the non-moving party will not be

A-3227-17T3
13
prejudiced, the court must inquire as to "whether granting the amendment would

nonetheless be futile." Notte, 185 N.J. at 501. An amended claim is futile when

it cannot be sustained as a matter of law. Ibid.

Here, the motion judge did not apply the two-step process required by

Notte in his statement of reasons for denying plaintiff's motion. The judge also

failed to apply Notte when he decided to deny plaintiff's motion for

reconsideration. The order simply stated: "[T]he motion for reconsideration is

denied." The judge nevertheless noted that when plaintiff's counsel filed the

original complaint, all the facts that were necessary to assert a CEPA claim

were "obviously known" to counsel. He thus did not find sufficient grounds to

grant leave to amend.

However, the motion judge's failure to apply the proper legal standard to

determine whether plaintiff should have been permitted to amend her complaint

is not an insurmountable impediment to this court. We start by turning to the

first part of the test under Notte, "whether the non-moving party will be

prejudiced." 185 N.J. at 501. Here, it is likely defendant would have been

prejudiced by the amended complaint. The facts alleged in the original

complaint do not give rise to a CEPA claim. The only allegation in the original

complaint that could give rise to a CEPA claim is contained in one sentence:

A-3227-17T3
14
"[p]laintiff further complained about employees stealing food in the Deli

Department and eating during their shifts." This one sentence is embedded in

the factual background plaintiff asserted as part of her sexual harassment claim.

This oblique allusion does not adequately put defendants on notice that they

would likely be required to defend a CEPA claim in the future. We are thus

satisfied that the amended complaint would have been prejudicial to defendants.

Moreover, the attendant circumstances relating to the timing of the motion

to amend were also prejudicial to defendants because they would have resulted

in "undue delay." Tomaszewski, 240 N.J. Super. at 411. Plaintiff's original

complaint was filed on April 25, 2016. Plaintiff's motion to amend was not filed

until June 1, 2017, seven weeks from the discovery end date. When plaintiff

filed this motion to amend, discovery was ongoing and defendants' litigation

strategy was based on defending alleged violations of the LAD. Significant time

and resources had already gone into the discovery process driven by the cause

of action framed by plaintiff. To allow plaintiff to add a CEPA claim under

these circumstances would have punished the diligent and rewarded the slothful.

Sound judicial management cannot condone such an outcome.

We next address the second part of the Notte test, which requires the court

to deny plaintiff's motion to amend a complaint if the proposed amendment

A-3227-17T3
15
would be futile. 185 N.J. at 501. An amendment is futile when it cannot be

sustained as a matter of law. Ibid. A plaintiff presents a prima facie CEPA

claim when the following four elements are met: "(1) he or she reasonably

believed that his or her employer's conduct was violating either a law, rule, or

regulation promulgated pursuant to law, or a clear mandate of public policy; (2)

he or she performed a 'whistle-blowing' activity described in N.J.S.A. 34:19-3c;

(3) an adverse employment action was taken against him or her; and (4) a causal

connection exists between the whistle-blowing activity and the adverse

employment action." Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).

Assuming all of the allegations in plaintiff's amended complaint are true,

plaintiff did not establish a prima facie CEPA claim pursuant to N.J.S.A 34:19-

3c(1) because her proposed amended pleading did not allege specific facts that

show she suffered an adverse employment action as a proximate cause of

engaging in whistleblowing activities. Paragraph 41 of plaintiff's proposed

amended complaint states: "Defendants took retaliatory action against [p]laintiff

by subjecting her to a hostile work environment, altering her duties and

responsibilities, and/or by discharging her from employment." (Emphasis

added). There is no factual allegations in the pleading to support this statement.

Plaintiff resigned from her position at ShopRite. She was not terminated. In

A-3227-17T3
16
her LAD complaint she makes clear she was constructively discharged. Based

on the foregoing, the motion to amend was properly denied because it was

prejudicial and her CEPA cause of action was futile.

Finally, we address the court's decision to grant defendants' motion for

summary judgment. Plaintiff argues the motion judge erred when he granted

defendants' summary judgment motion because: (1) the complained of conduct

was not gender neutral; (2) the conduct was severe and pervasive; and (3)

viewing the facts in the light most favorable to plaintiff, including all reasonable

inferences that can be drawn therefrom, a reasonable woman would have

considered the conditions of employment to have been adversely altered.

Defendants argue the judge properly applied the relevant standards to dismiss

plaintiff's hostile work environment claim as a matter of law. We agree with

defendants' position.

An appellate court reviews a grant of summary judgment by applying the

same standard as the motion judge. Globe Motor Co. v. Igdalev, 225 N.J. 469,

479 (2016). Under that standard, summary judgment is appropriate when "the

pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment or

A-3227-17T3
17
order as a matter of law." R. 4:46-2(c). All factual inferences are drawn in favor

of the non-moving party. Ibid.

To survive defendants' summary judgment motion, plaintiff must show:

(1) that she was harassed by her coworkers and supervisors; (2) this harassment

would not have occurred but for her gender; (3) the harassment was so severe

and/or pervasive that; (4) a reasonable woman would believe that; (5) the

conditions of employment were altered and the work environment was hostile

and/or abusive. Aguas v. State, 220 N.J. 494, 509 (2015); see also Lehman v.

Toys 'R' Us, 132 N.J. 587, 603-04 (1993).

Under the first prong, "plaintiff must show by a preponderance of the

evidence that the impermissible conduct would not have occurred but for

plaintiff's protected status." Shepherd v. Hunterdon Developmental Ctr., 174

N.J. 1, 24 (2002). When a plaintiff alleges she has been subjected to sexual

touching or comments, the first prong is automatically satisfied. Lehman, 132

N.J. at 605. However, if the alleged improper conduct is gender neutral, the first

prong is not satisfied. Oakley v. Wianecki, 345 N.J. Super 194, 203 (App. Div.

2001). To create a jury question regarding the remaining prongs, the conduct at

issue must be more than casual or sporadic. Shepherd, 174 N.J. at 25-26. It

must go beyond "simple teasing, offhand comments, and isolated incidents."

A-3227-17T3
18
Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999). We

address prongs two through four under a reasonable woman standard. Lehman,

132 N.J. at 603-04.

Turning to the first and second prongs of the test in Aguas, plaintiff does

not demonstrate that the complained of conduct constituted cognizable claims

of gender bias or sexual harassment. Behavior that is unprofessional and

offensive, while inappropriate, is significantly different than the discriminatory

acts that the LAD makes actionable. See Oakley, 345 N.J. Super. at 203 (stating

offensive conduct is not actionable under the LAD when it lacks the

"connotation of inferiority" which accompanies discriminatory statements).

Here, plaintiff specifically complained of three comments directed at her. The

first one occurred when a fellow employee asked if she had just had sex before

coming to work because her hair was messy. The second one involved an

oblique reference to sexual activity made when plaintiff returned with dirty

hands after discarding food in the compost bin. A coworker allegedly

commented that plaintiff "likes it dirty."

The only other conduct directed at plaintiff was allegedly made by a male

coworker when he said her accent was sexy. While these comments may be

inappropriate, unprofessional, and boorish, especially in the workplace, they are

A-3227-17T3
19
not inherently discriminatory statements about plaintiff's gender. They do not

imply a "connotation of inferiority" based on her gender necessary to be

actionable under the LAD.

Moreover, even assuming these comments satisfy the first and second

prongs of Aguas, the record shows plaintiff did not produce sufficient evidence

to establish a severe and pervasive gender bias to create a hostile a work

environment. The conduct complained of must be more than "casual or

sporadic" and go beyond "simple teasing, offhand comments, and isolated

incidents." Heitzman, 321 N.J. Super at 147.

Here, the incidents simply do not rise to the level of "severe and

pervasive" under the third prong of Aguas. The record shows the conduct was

offhanded and isolated. Plaintiff was employed by ShopRite for four and a half

months. Over the course of this limited employment history she only identified

three comments directed at her and four other offensive events, which allegedly

occurred in the work environment and did not involve her. These seven

incidents were not "severe or pervasive" enough to sustain a claim under the

LAD. The motion judge correctly decided this issue as a matter of law.

The final step in assessing a hostile work environment claim requires the

court to determine whether "a reasonable [member of the protected class would

A-3227-17T3
20
have] believe[d] that . . . the conditions of employment [were] altered and the

working environment [was] hostile or abusive." Taylor v. Metzger, 152 N.J.

490, 498 (1998) (third alteration in original) (quoting Lehman, 132 N.J. at 603-

04). Based on the infrequency and non-discriminatory character of the

complained of remarks, there is insufficient evidence to conclude a reasonable

woman would have found the conditions of employment altered or the

environment hostile or abusive.

Plaintiff did not satisfy any of the required elements of the Supreme

Court's test to establish a hostile work environment. The court correctly granted

defendants' summary judgment motion.

Affirmed.

A-3227-17T3
21