SANDRA LACORTE VS. DISABLED INFORMATION AWARENESS AND LIVING, INC. (L-2498-18, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-4237-19

SANDRA LACORTE,

Plaintiff-Appellant,

v.

DISABLED INFORMATION
AWARENESS AND LIVING,
INC., and JOHN PETIX, JR.,
individually and in his official
capacity as Executive Director,

Defendants-Respondents.
___________________________

Submitted March 16, 2021 – Decided May 19, 2021

Before Judges Fisher, Gilson, and Moynihan.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-2498-18.

Frederick Coles, III, attorney for appellant.

Marshall Dennehey Warner Coleman & Goggin,
attorneys for respondents (Howard B. Mankoff and
Walter F. Kawalec, III, on the brief).

PER CURIAM
 Plaintiff Sandra LaCorte sued her former employer, Disabled Information

Awareness and Living, Inc. (DIAL) and former manager, John Petix, Jr.,

alleging that they engaged in gender discrimination and retaliated against her

for filing a workers' compensation claim. She appeals from an order granting

summary judgment to defendants and dismissing her complaint with pr ejudice

before the close of discovery.

We affirm because plaintiff did not offer evidence establishing a prima

facie case of employment discrimination, nor has she rebutted her employer's

legitimate, non-discriminatory reasons for her termination. She also failed to

establish a link between her termination and her workers' compensation claim.

Finally, plaintiff did not identify any outstanding discovery that reasonably

could have helped to prove her claims.

I.

Plaintiff began working for DIAL, a non-profit agency that provides

services to disabled individuals, on June 20, 2011. Petix was plaintiff's

immediate supervisor and the only male employee in their office. Plaintiff was

initially employed as an employment access specialist, with no set duties.

Eventually, her title changed to youth and transition services specialist. That

role had a written description and responsibilities. In short, plaintiff was

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required to complete certain forms, provide referrals over the phone, create

presentations, and conduct outreach.

Petix's emails with plaintiff reflect a contentious relationship. On July 19,

2016, plaintiff was reprimanded after opening a Facebook account for DIAL

without Petix's permission. Less than three months later, on October 4, 2016,

plaintiff was again instructed not to take certain actions without Petix's

authorization. Petix's executive assistant, in an email copying Petix, also

contacted plaintiff about her failure to timely complete required forms in

February 2017. In addition, Petix counseled plaintiff about her attitude and

behavior, telling her to "slow down and stop presuming and jumping to

conclusions about so many issues." Plaintiff received similar feedback from

Petix in May and June 2017.

On May 22, 2017, plaintiff was injured at an outreach event. She notified

DIAL of her injury and completed an incident report form, which was signed by

plaintiff and Petix. Petix gave plaintiff DIAL's workers' compensation

insurance information. She filed for benefits on June 7, 2017.

On July 9, 2017, Petix's dissatisfaction with plaintiff's performance

culminated in her being placed on administrative leave. In his emailed notice,

Petix stated the decision was based on "repeated incidents of blatant

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insubordination," plaintiff's use of her work computer for personal activities

during work hours, and her "continued pursuit of inappropriate activities outside

the scope of [her] job duties." He also referenced warnings given to plaintiff for

combative behavior and her failure to fulfill her duties on five days in June and

July 2017.

On July 17, 2017, plaintiff met with Petix and executive assistant Mary

Fitzpatrick, and was given a two-page performance improvement plan (PI plan).

The PI plan listed eight job performance concerns: "(1)

Insubordinate/Contentious Argumentative Attitude;" "(2) Incomplete Service

Documentation;" "(3) Daily/Weekly Priority Setting;" "(4) Employee

Education;" "(5) Supervisory Communication;" "(6) Scope of Work Activities;"

"(7) Time Management;" and "(8) Use of Office Equipment." Plaintiff signed

the PI plan during the meeting. She did not dispute its contents or object at that

time.

On August 7, 2017, Petix contacted plaintiff about violations of the PI

plan. He again accused her of engaging in inappropriate activities on company

time, misusing DIAL's office equipment, and not focusing on outstanding

reports. Plaintiff was warned that further violations would result in a second

notice of disciplinary action. Plaintiff received her second notice of disciplinary

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action the very next day because she "unnecessarily" printed supervisory emails

and forwarded an internal memo to a non-DIAL employee. Plaintiff was

terminated three days later.

The day before her termination, plaintiff sent a letter to DIAL Board

President Charles Brooks, outlining her grievances with Petix. She referenced

Petix's criticism, supervision, and confiscation of her emails and print jobs.

Plaintiff also alleged that Petix engaged in "retaliatory acts," such as changing

and requiring weekly approval of her schedule. Her letter did not attribute

Petix's behavior to her gender or her workers' compensation claim.

On July 25, 2018, plaintiff filed a complaint against DIAL and Petix,

alleging one count of gender discrimination in violation of the New Jers ey Law

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and one count of

workers' compensation retaliation, N.J.S.A. 34:15-39.1. Defendants' answer

maintained the sole reason for plaintiff's termination was her deficient

performance. The parties engaged in discovery, which became contentious and

resulted in the filing of several motions.

Following a motion to compel by defendants, plaintiff was deposed on

January 28, 2020. Plaintiff admitted to some of the behaviors described in

Petix's emails, but characterized Petix's emails as "misleading," and at least one

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as "inaccurate." She conceded that she used her work computer to check her

personal email but said she (at least initially) did so with Petix's permission. She

also used DIAL's equipment to store non-work-related documents because she

"didn't have a computer at th[at] time." She acknowledged she did not always

complete her assignments but attributed this to her increasing workload. She

also acknowledged copying information and emails in the final weeks of her

employment and claimed she did so to "defend [her]self against false

allegations."

Plaintiff maintained Petix only began characterizing her behavior as

insubordinate and argumentative after her workers' compensation claim.

Plaintiff testified she did not realize Petix's conduct was motivated by workers'

compensation retaliation at the time she wrote her grievance letter. She made

the connection after she was terminated, when she checked her calendar and

recognized "all of a sudden he started treating [her] completely different."

On April 21, 2020, plaintiff filed a motion to, among other things, extend

the discovery period and adjourn the May 18, 2020 trial date. On May 29, 2020,

the trial court granted the motion in part over defendants' objections, extending

discovery to August 28, 2020, and adjourning the trial to September 28, 2020.

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Defendants were ordered to respond to some, but not all, of plaintiff's

outstanding discovery demands.

In April 2020, defendants moved for summary judgment before discovery

was completed. The motion was supported by a statement of material facts and

documents outlining plaintiff's deficient performance. Plaintiff did not respond

to the statement of material facts or file opposing proofs. Instead, she argued

that summary judgment was inappropriate because of the outstanding discovery.

On June 19, 2020, the trial court entered an order granting defendants

summary judgment and dismissing plaintiff's claims with prejudice. The court

issued a written opinion explaining its ruling. The trial court found that plaintiff

had failed to establish a prima facie showing of discrimination and defendants

had presented valid reasons for plaintiff's termination. The court also found that

"other than proximity in time, there [was] nothing to suggest that [p]laintiff was

fired because of her worker[s'] compensation claim."

Additionally, the court found plaintiff made "no specific showing that any

of the outstanding discovery [was] likely to be sufficiently supportive of [her]

claims." In that regard, the court found plaintiff had the benefit of thousands of

pages of discovery, including internal communications, and the outstanding

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discovery would not help her sustain her burden. Accordingly, summary

judgment was granted in defendants' favor. This appeal followed.

II.

On appeal plaintiff makes two arguments, contending that summary

judgment should not have been granted before the close of discovery and the

trial court erred by engaging in a "subjective analysis" of the facts and thereby

making factual findings on disputed material issues. We disagree.

We use a de novo standard to review the grant of a motion for summary

judgment. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). Accordingly, we assess

whether defendants demonstrated that there were no genuine disputes as to a ny

material facts and whether they are entitled to judgment as a matter of law. Ibid.;

Schiavo v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div. 2015);

R. 4:46-2(c). A dispute of material fact is genuine "if, considering the burden

of persuasion at trial, the evidence submitted by the parties on the motion,

together with all legitimate inferences therefrom favoring the non-moving party,

would require submission of the issue to the trier of fact." Schiavo, 442 N.J.

Super. at 366 (quoting R. 4:46-2(c)).

Rule 4:46-1 allows a party to file a motion for summary judgment before

the close of discovery, therefore claims of incomplete discovery alone will not

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suffice. See Wellington v. Est. of Wellington, 359 N.J. Super. 484, 496 (App.

Div. 2003). Instead, the opposing party must "demonstrate with some degree of

particularity the likelihood that further discovery will supply the missing

elements of the cause of action," Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544,

555 (2015) (citations omitted), and identify the specific discovery needed,

Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007).

Plaintiff made no such showing. Instead, she argues that the trial court

should not have considered the motion for summary judgment because she was

entitled to full discovery. Plaintiff misunderstands her burden.

To prove employment discrimination, New Jersey courts have adopted the

burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-04 (1973). Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14 (2002).

Under that framework, a plaintiff must first establish a prima facie case by a

preponderance of the evidence. Id. at 14. The burden then shifts to the employer

to produce "a legitimate, non-discriminatory reason for the adverse employment

action." Ibid. (citing Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 493 (1982)).

"After the employer does so, the burden shifts back to the plaintiff to show that

the employer's proffered reason was merely a pretext for discrimination." Ibid.

(citing Andersen, 89 N.J. at 493). "[P]laintiff retains the ultimate burden of

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persuasion at all times; only the burden of production shifts." Ibid. (citing

Andersen, 89 N.J. at 493).

Initially, it is important to note that plaintiff's failure to object to

defendants' statement of material facts means each of defendants' sufficiently

supported contentions about her deficient performance are deemed admitted for

the purpose of the summary judgment motion. R. 4:46-2(b); Allstate Ins. Co. v.

Fisher, 408 N.J. Super. 289, 300 (App. Div. 2009). Thus, the question is

whether, given defendants' supported facts, plaintiff has established a prima

facie case of gender discrimination or workers' compensation retaliation. We

hold that she has not.

To establish a prima facie case of gender discrimination, plaintiff must

show that she (1) was a member of a protected class; (2) was performing her job

at a satisfactory level; (3) was terminated; and (4) "was terminated under

circumstances that give rise to an inference of unlawful discrimination." Young

v. Hobart W. Grp., 385 N.J. Super. 448, 463 (App. Div. 2005) (citing Williams

v. Pemberton Twp. Pub. Sch., 323 N.J. Super. 490 (App. Div. 1999)). Plaintiff

cannot satisfy the second or fourth prongs. Defendants produced evidence

establishing plaintiff was a subpar employee. Plaintiff not only admitted to this

by failing to respond to defendants' statement of material facts, see R. 4:46-2(b),

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she corroborated it during her deposition. Plaintiff conceded using her computer

for improper purposes, violating the terms of the PI plan, and failing to complete

reports.

Plaintiff has also provided no evidence to support an inference that she

was unlawfully terminated because of her gender. She cannot contrast Petix's

treatment of her with that of similarly situated male employees because Petix

was the only male employee in their office. See, e.g., Grigoletti v. Ortho Pharm.

Corp., 118 N.J. 89, 110 (1990) (recognizing prima facie case is established

where female employees receive unequal pay for substantially equal work

performed by male employees); see also Schiavo, 442 N.J. Super. at 387-88

(prima facie case established where female employees showed, but for gender-

specific characteristics, "they would not have been the object of the

harassment"). Additionally, plaintiff was replaced by a woman. See Williams,

323 N.J. Super. at 503 (acknowledging replacement by a person outside

protected class may, but is not required, to support inference of discrimination).

Plaintiff does not explain how the outstanding discovery will establish what

thousands of pages of materials could not. Kaczorowska v. Nat'l Envelope

Corp., 342 N.J. Super. 580, 591-92 (App. Div. 2001).

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 She has also failed to establish a prima facie case of workers'

compensation retaliation. To make out a prima facie case, plaintiff must prove:

(1) she made a claim for workers' compensation; and (2) she was discharged in

retaliation for that claim. Hejda v. Bell Container Corp., 450 N.J. Super. 173,

192 (App. Div. 2017); Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435,

442-43 (App. Div. 1988). Plaintiff's sole support is her contention that she only

received negative feedback after her claim. The record, however, belies her

position. The unrebutted documents produced by defendants establish that

plaintiff was criticized and counseled about her employment deficiencies well

before she filed for workers' compensation.

Moreover, we have recognized that temporal proximity alone is generally

insufficient to demonstrate a causal link. Young, 385 N.J. Super. at 467 (quoting

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)) (facts of case

must be "unusually suggestive of retaliatory motive" to have temporal proximity

alone support a connection). The circumstances surrounding plaintiff's

termination are not "unusually suggestive" of workers' compensation retaliation.

To the contrary, the record reflects DIAL was cooperative with her claim: Petix

was forthcoming with DIAL's insurance information and signed off on plaintiff's

injury report.

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 Finally, plaintiff cannot prove the legitimate, non-discriminatory reasons

articulated by defendants for her termination were pretexts for unlawful

discrimination. See id. at 459-60. A plaintiff may show pretext and defeat a

summary judgment motion "by either (i) discrediting the proffered reasons,

either circumstantially or directly, or (ii) adducing evidence, whether

circumstantial or direct, that discrimination was more likely than not a

motivating or determinative cause of the adverse employment action." DeWees

v. RCN Corp., 380 N.J. Super. 511, 528 (App. Div. 2005) (quoting Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). They "must demonstrate such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions

in the employer's proffered legitimate reasons for its action[s] that a reasonable

factfinder could rationally find them 'unworthy of credence.'" Ibid. (quoting

Fuentes, 32 F.3d at 765). Plaintiff offers no proofs contradicting the reasons

articulated by defendants.

Affirmed.

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