NOT FOR PUBLICATION WITHOUT THE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-2211-19
LAVERNE SANDERS,
Plaintiff-Appellant,
v.
DIVISION OF CHILDREN AND
FAMILY SERVICES, PAMELLA
MILLER, LORI SANDERS, ILA
BHATNAGAR,1 CHRISTINE
CHANG, JACKIE MCCOY, MARK
KEARS, and HEATH BERNSTEIN,
Defendants-Respondents.
_______________________________
Submitted April 26, 2021 – Decided May 20, 2021
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1533-16.
Laverne Sanders, appellant pro se.
1
Improperly pled as Lla Bhatnagar.
Marshall Dennehey Warner Coleman & Goggin,
attorneys for respondents (Leonard C. Leicht and
Walter F. Kawalec, III, on the brief).
PER CURIAM
Plaintiff Laverne Sanders appeals from an August 16, 2019 order granting
summary judgment to defendants Division of Children and Family Services
(DCF) and Jackie McCoy2 and an October 11, 2019 order denying her motion
for reconsideration. 3 We affirm.
The parties are familiar with the facts giving rise to plaintiff's claims that
DCF and several DCF employees discriminated against her in violation of the
New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49.
Plaintiff was involved in prior litigation against the DCF. See Sanders v.
Division of Children & Family Servs., No. A-3720-14 (App. Div. July 26, 2017).
2
Plaintiff effectuated service of her complaint only upon these defendants. As
a result, plaintiff's claims against defendants Pamella Miller, Lori Sanders, Ila
Bhatnagar, Christine Chang, Mark Kears, and Heath Bernstein were dismissed
for lack of prosecution.
3
Rule 2:5-1(e)(3)(i) requires designation of "the judgment, decision, action or
rule, or part thereof appealed from . . ." On appeal, "we review 'only the
judgment or orders designated in the notice of appeal.'" Kornbleuth v. Westover,
241 N.J. 289, 298-99 (2020) (quoting 1266 Apartment Corp. v. New Horizon
Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004)). Because plaintiff failed
to include the October 11, 2019 order in her notice of appeal, we decline to
consider her appeal from that order.
A-2211-19
2
We incorporate the facts from our prior decision related to plaintiff's earlier
NJLAD claims against DCF.
After resolving her prior litigation against DCF, plaintiff again filed suit
against the agency, alleging new discriminatory actions in violation of the
NJLAD. Her new claims against DCF included denial of a job opportunity with
the Federal Emergency Management Agency (FEMA) based on statements made
by DCF employees to a FEMA investigator conducting a pre-employment
background check. Plaintiff further contended she was subject to retaliatory
conduct by DCF and its employees as a result of her prior lawsuit. Plaintiff also
asserted she suffered a hostile work environment based on DCF's refusal to
accommodate her request for handicap parking and transfer to another unit
within the agency.
In April 2016, plaintiff filed a complaint against defendants alleging
unlawful retaliation, aiding and abetting, and hostile work environment in
violation of the NJLAD. DCF and McCoy filed a motion for summary judgment,
which plaintiff opposed. The record on appeal lacks evidence of plaintiff's
response, if any, to defendants' statement of undisputed facts accompanying the
summary judgment motion.
A-2211-19
3
In an August 16, 2019 order and written decision, the judge granted
defendants' motion for summary judgment. The judge concluded plaintiff failed
to present materially disputed facts as to any of her claims which would preclude
the entry of summary judgment as a matter of law. The judge determined the
complained of conduct by DCF or its employees was "so severe and pervasive
that the conditions of [p]laintiff's employment were altered." Regarding
plaintiff's request to transfer to another unit within DCF, the judge determined
"[p]laintiff lost no wages, and had no change in schedule" and "was granted an
accommodation request for intermittent leave." In rejecting plaintiff's
retaliation claim, the judge found "[p]laintiff offer[ed] no argument or proof that
she suffered any adverse employment decisions as a result of the making of the
alleged statements [by DCF employees to the FEMA investigator]." Regarding
the aiding and abetting claim against McCoy, the only individual defendant who
was served with the complaint, the judge held there were "no statements from
the record that would support a claim" and plaintiff "offer[ed] nothing more than
mere allegations . . . to make a showing for aiding and abetting." In addition,
the judge concluded McCoy was not involved in any decisions related to
plaintiff's transfer request or handicap parking. Plaintiff filed a motion for
reconsideration, which the judge denied.
A-2211-19
4
On appeal, plaintiff raises the following arguments:
I. [THE] TRIAL COURT ABUSED ITS DISCRETION
BY IGNORING THE EVIDENCE FROM THE FEMA
INTERVIEWS IN WHICH RESPONDENTS USED
THEIR KNOWLEDGE OF APPELLANT'S 2013
PROTECTED ACTIVITY AS A FORM OF
RETALIATION AGAINST HER AND TO DESTROY
HER CHANCES AT SECURING A POSITION AT
FEMA.
II. [THE] TRIAL COURT ABUSED ITS DISCRETION
BY IGNORING THE EVIDENCE FROM THE FEMA
INTERVIEWS THAT RESPONDENTS USED THEIR
INTERVIEWS TO AID, ABET, INCITE, COMPEL
OR COERCE THROUGH COLLUSION.
III. THE TRIAL COURT ABUSED ITS DISCRETION BY
OVERLOOKING THE RESPONDENTS'
RETALIATORY ACTIONS AND ADVERSE
EMPLOYMENT DECISIONS BY SABOTAGING
THE APPELLANT'S CHANCES AT SECURING THE
POSITION AT FEMA AND FAILURE TO MAKE
REASONABLE ACCOMODATIONS FOR THE
APPELLANT'S DISABILITY.
IV. [THE] TRIAL COURT ABUSED ITS DISCRETION
BY GRANTING RESPONDENT[S'] MOTION FOR
SUMMARY JUDGMENT AND DENYING
APPELLANT'S MOTION FOR
RECONSIDERATION.
A-2211-19
5
Having reviewed the record, we are satisfied plaintiff failed to proffer any
evidence to substantiate her NJLAD claims and, therefore, affirm.
We first address several deficiencies associated with plaintiff's appeal.
As we previously noted, plaintiff did not include the October 11, 2019 order
denying her motion for reconsideration in her notice of appeal, barring its
consideration on appeal. Further, plaintiff failed to brief reconsideration. An
issue not briefed is deemed waived. See Gormley v. Wood-El, 218 N.J. 72, 95
n.8 (2014); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.
2:6-2 (2021). Thus, the denial of plaintiff's motion for reconsideration is not
before this court on appeal.
We next consider plaintiff's claim the motion judge "abused [his]
discretion" in granting summary judgment to defendants. We do not review a
trial court's determination on a motion for summary judgment for "abuse of
discretion." Rather, we review a trial court's decision granting summary
judgment de novo, employing the same standard as the trial court. Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016). A motion for summary judgment should be granted "if 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
A-2211-19
6
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law." R. 4:46-2(c).
Facts must be viewed in the light most favorable to the non-moving party.
Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 374 (2010).
However, the non-moving party must present evidence of materially disputed
facts in opposing summary judgment. Traditionally, the non-moving party
offers an affidavit or certification setting forth materially disputed facts along
with documents in opposition to a motion for summary judgment. The record
does not reflect an affidavit or certification from plaintiff in response to
defendants' summary judgment motion.
In addition, Rule 4:46-2(b) provides "[a] party opposing the motion [for
summary judgment] shall file a responding statement either admitting or
disputing each of the facts in the movant's statement." Unless specifically
disputed in a responding statement with precise record references, "all material
facts in the movant's statement which are sufficiently supported will be deemed
admitted . . ." R. 4:46-2(b). Where an opposing party offers no substantial or
material facts in opposition to summary judgment, the party cannot complain if
the court takes as true the uncontradicted facts in the movant's papers. Judson
v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).
A-2211-19
7
Here, defendants submitted 265 statements of undisputed material facts
with corresponding citations to exhibits annexed to a certification in accordance
with Rule 4:46-2(a). Not only did plaintiff fail to submit a responding statement,
but the statement of facts in her brief opposing summary judgment stated, "See
[d]efendants' accompanying [s]tatement of [u]ndisputed [m]aterial [f]acts."
Thus, the motion judge properly granted summary judgment based on plaintiff's
failure to meet her burden in opposing summary judgment by providing
sufficient evidence of genuine issues of material fact in support of her
employment discrimination claims. By accepting defendants' facts, plaintiff
certified there was no dispute.
Additionally, plaintiff's merits brief omitted "[a] concise statement of
facts material to the issues on appeal supported by references to the
appendix . . ." Rule 2:6-2(a)(5). The statement of facts in plaintiff's appellate
brief is devoid of any citation to her appendix. Without proper citation to the
record, our review of the issues raised in plaintiff's appeal is hampered. We
recognize plaintiff is self-represented on appeal. However, plaintiff is held to
the same standard for compliance with our court rules as attorneys. Rubin v.
Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982).
A-2211-19
8
We also note plaintiff's appendix includes documents without indicating
whether the documents were presented to the motion judge. We cannot properly
exercise appellate review where a party appealing from a summary judgment
order fails to provide a complete and accurate record of the material presented
to the motion judge. See Noren v. Heartland Payment Sys., Inc., 449 N.J. Super.
193, 195-96 (App. Div. 2017) (denying reconsideration on a summary judgment
motion because the party did not "submit the items that had been submitted to
the trial court on the summary judgment motion or even a statement of the items
submitted").
Despite these procedural deficiencies, we elect to review plaintiff's appeal
arguments on the merits.
We begin with plaintiff's hostile work environment claim. To prevail on
such a cause of action under the NJLAD, a plaintiff must establish the conduct
"(1) would not have occurred but for the employee's protected status, and was
(2) severe or pervasive enough to make a (3) reasonable person believe that (4)
the conditions of employment have been altered and that the working
environment is hostile or abusive." Shepherd v. Hunterdon Developmental Ctr.,
174 N.J. 1, 24 (2002) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-
04 (1993)).
A-2211-19
9
Plaintiff failed to proffer competent evidence in support of her hostile
work environment claim. We are satisfied DCF's conduct was not severe and
pervasive such that the conditions of her employment were altered. Plaintiff
continued to work the same hours, at the same salary, and with the same
flexibility, allowing her time off from work to accommodate her health needs.
Further, DCF accommodated plaintiff's needs and considered the
recommendation of her doctor when it maintained her existing assignment
because her current job position was less stressful and more flexible than the
unit to which plaintiff sought to be transferred.
We next address plaintiff's retaliation claim. To prevail on a retaliation
claim, a plaintiff must show "(1) [plaintiff] engaged in protected activity; (2) the
activity was known to the employer; (3) plaintiff suffered an adverse
employment decision; and (4) there existed a causal link between the protected
activity and the adverse employment action." Young v. Hobart West Grp., 385
N.J. Super. 448, 465 (App. Div. 2005) (citing Craig v. Suburban Cablevision,
140 N.J. 623, 629-30 (1995)).
To constitute an adverse employment action, "retaliatory conduct must
affect adversely the terms, conditions, or privileges of the plaintiff's
employment or limit, segregate or classify the plaintiff in a way which would
A-2211-19
10
tend to deprive her of employment opportunities or otherwise affect her status
as an employee." Richter v. Oakland Bd. of Edu., 459 N.J. Super. 400, 417
(App. Div. 2019) (quoting Marrero v. Camden Cty. Bd. of Soc. Servs., 164 F.
Supp. 2d. 455, 473 (D.N.J. 2001)). Ultimately, the action must "rise above
something that makes an employee unhappy, resentful[,] or otherwise cause an
incidental workplace dissatisfaction." Id. at 418 (quoting Victor v. State, 401
N.J. Super. 596, 616 (App. Div. 2008)).
On this record, we are satisfied plaintiff failed to proffer competent
evidence in support of her retaliation claim. There was no evidence plaintiff
suffered any adverse employment decision by DCF. To the contrary, plaintiff
continued to work at DCF at the same salary, with the same work hours, and in
the same unit as she had prior to filing litigation. Plaintiff's dissatisfaction with
her DCF co-workers and supervisors does not support a claim for retaliation.
Even assuming there was an adverse employment decision by DCF,
plaintiff offered no evidence of a causal connection between the alleged
protected activity and the adverse employment action necessary to prevail on
her retaliation claim. See Young, 385 N.J. Super. at 467 (quoting Krouse v. Am.
Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)) ("[T]he mere fact that [an]
adverse employment action occurs after [the protected activity] will ordinarily
A-2211-19
11
be insufficient to satisfy the plaintiff's burden of demonstrating a ca usal link
between the two.").
While plaintiff was upset FEMA did not hire her, the failure to be hired
by FEMA was insufficient to prove causation in support of a retaliation claim.
There was no evidence statements by DCF employees to the FEMA investigator
were causally related to any adverse employment decision and, but for those
statements, plaintiff would have received a job with FEMA. Although plaintiff
was displeased by defendants' statements to the FEMA investigator and the
ultimate denial of her employment with FEMA, she failed to present evidence
of any retaliatory intent to prevail on her claim.
Plaintiff's contention defendants improperly told the FEMA investigator
about certain incidents, specifically concerning her purported credit card fraud
and Medicaid fraud investigation and denial of plaintiff's request to serve as a
foster parent, cannot be considered on appeal because plaintiff never raised these
arguments before the motion judge. See 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) ("It is a well-settled principle that our
appellate courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is
A-2211-19
12
available 'unless the questions so raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest.'")).
Regarding plaintiff's aiding and abetting claim, the NJLAD imposes
individual liability on "any person, whether an employer or an employee or not,
to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under
this act, or to attempt to do so." N.J.S.A. 10:5-12(e). For liability to attach
under a claim for aiding and abetting, a plaintiff must show:
(1) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant
must be generally aware of his role as part of an overall
illegal or tortious activity at the time that he provides
the assistance; [and] (3) the defendant must knowingly
and substantially assist the principal violation.
[Tarr v. Ciasulli, 181 N.J. 70, 84 (2004) (quoting
Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 127
(3d Cir. 1999)).]
In determining whether an individual has provided "substantial assistance,"
judges should consider "(1) the nature of the act encouraged, (2) the amount of
assistance given by the supervisor, (3) whether the supervisor was present at the
time of the asserted harassment, (4) the supervisor's relations to the others, and
(5) the state of mind of the supervisor." Ibid. (citing Hurley, 174 F.3d at 127
n.27).
A-2211-19
13
McCoy was the only DCF employee served with the complaint. We are
satisfied the judge correctly concluded plaintiff "offered nothing more than mere
allegations" in support of her aiding and abetting claim and presented no
evidence McCoy had any role regarding plaintiff's request for a handicap
parking spot or transfer to another job position. Moreover, because we concur
with the judge's determination defendants did not engage in discriminatory
conduct under the NJLAD, plaintiff's aiding and abetting claims necessarily
fails.
Affirmed.
A-2211-19
14
LAVERNE SANDERS VS. DIVISION OF CHILDREN AND FAMILY SERVICES (L-1533-16, HUDSON COUNTY AND STATEWIDE)
Combined Opinion