Laura C. Wheeler v. New Jersey State Police

NOT FOR PUBLICATION WITHOUT THE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-3803-22

LAURA C. WHEELER,

Plaintiff-Appellant,

v.

NEW JERSEY STATE POLICE,

DSFC MICHAEL DAVIS,

LIEUTENANT ERIC BARLOW,

DSFC DANIEL STRASSHEIM,

and DSFC CRAIG BROWN,

Defendants-Respondents.

______________________________

Submitted December 11, 2024 – Decided March 24, 2025

Before Judges Mayer and Rose.

On appeal from the Superior Court of New Jersey, Law

Division, Mercer County, Docket No. L-1770-19.

Jacobs & Barbone, PA, attorneys for appellant (David

A. Castaldi, on the briefs).

Matthew J. Platkin, Attorney General, attorney for

respondents (Janet Greenberg Cohen, Assistant

Attorney General, of counsel; Eric Intriago, Deputy

Attorney General, on the brief).

PER CURIAM

In this employment discrimination action, plaintiff Laura C. Wheeler

appeals from the summary judgment dismissal of her amended complaint against

New Jersey State Police (NJSP), and its employees, Lieutenant Eric Barlow, and

Detectives Sergeant First Class Michael Davis, Daniel Strassheim, and Craig

Brown (collectively, defendants). Plaintiff's amended complaint alleged gender

and pregnancy discrimination in violation of the Law Against Discrimination

(LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employee Protection Act

(CEPA), N.J.S.A. 34:19-1 to -14, commencing in 2011, before she gave birth to

her first child.

On appeal, plaintiff claims the motion judge misapplied the summary

judgment standard and erred as a matter of law. On de novo review, see

Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257 N.J. 33, 71 (2024), we

reject plaintiff's contentions. We conclude, as did the motion judge, plaintiff

failed to produce competent evidence supporting her claims and, as such,

defendants must prevail as a matter of law. We therefore affirm.

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I.

We summarize the pertinent facts from the motion record in a light most

favorable to plaintiff as the non-moving party. See R. 4:46-2(c); Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Hired by NJSP as a

trooper in August 2005, plaintiff held various positions in different units

throughout her employment. Plaintiff was placed on administrative leave in

August 2017, and other than a brief light-duty assignment in 2019, did not return

to full-time work. As of the filing of the parties' appellate briefs, plaintiff

remained on administrative leave earning her full salary.

Plaintiff gave birth to her first child in May 2011 and her second child in

July 2013. At the time of plaintiff's pregnancies, NJSP's maternity leave policy

followed the New Jersey Family Medical Leave Act (FMLA), N.J.S.A. 34:11B-

1 to -16. Accordingly, regardless of gender, NJSP employees were therefore

permitted up to twelve weeks paid leave for the birth of a child. As stated in the

certification of NJSP's human resources unit head, under the FMLA, the

employer's "[s]pecific dates for leave due to childbirth are determined by the

employee's ob-gyn, and the standard prescribed leave is 4 weeks before birth,

and 6 weeks to 8 weeks after birth, depending upon whether the birth is natural

or caesarian." Thus, "[t]he start or end date of FMLA leave" was not determined

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by the employer. During the FMLA period, employees were permitted to use

paid sick time "subject to approval." After the FMLA period, employees were

permitted to request regular sick leave "if warranted."

Regarding the birth of her first child, plaintiff used FMLA leave from

April 11, 2011 to June 30, 2011. After exhausting FMLA leave, plaintiff used

regular paid sick leave from July 1, 2011 through July 24, 2011. Thereafter,

NJSP approved plaintiff's separate requests for fifteen unpaid furlough days

between September 2011 and the end of that year, and sixteen unpaid furlough

days between January 2012 and May 2012.

Concerning the birth of her second child, plaintiff used FMLA leave from

June 14, 2013 through August 23, 2013. After exhausting FMLA leave, plaintiff

used: "regular paid sick leave from August 24, 2013 through September 24,

2013, paid vacation from September 25, 2013 through October 14, 2013, and

family leave without pay from October 15, 2013 through November 26, 2013."

Thereafter, NJSP approved plaintiff's request for six of twenty-one days of

unpaid furlough between December 2013 and June 2014. NJSP explained

plaintiff's request was partially denied for "a number of reasons," including

staffing and operational needs. NJSP approved plaintiff's ensuing requests for

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nine unpaid furlough days between March 2014 and June 2014 and fourteen

unpaid days between September 2014 and the end of 2014.

From December 2013 to July 2014, plaintiff was assigned to the Official

Corruptions Unit (OCU). Strassheim was the unit's assistant head. At

deposition, plaintiff claimed in June 2014, Strassheim reprimanded her in a

"very intimidating" voice, claiming she disobeyed "a direct order to serve a

complaint." Plaintiff was later issued disciplinary charges, including willful

disobedience for failing to serve the complaint.

During the same time frame, Barlow was OCU's lieutenant. When

deposed, plaintiff stated from the outset of her OCU assignment, she "felt like

[Barlow] never respected [her]." For example, plaintiff stated even though she

was employed by the NJSP for about seven years when she was transferred to

the OCU, Barlow "treated [her] like [she] was [just] out of the academy."

Plaintiff also testified that Barlow remarked, "[y]ou need to dress nicer."

According to plaintiff, Barlow "treated the men differently than [her]."

Plaintiff also asserted in September 2014, after she left the OCU and was

assigned to the Evidence Management Unit, Barlow "berat[ed]" her at the

Hughes Justice Complex by accusing her of being late for a court appearance

and "stealing time" by overstating the hours allotted for that task. Plaintiff

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claimed Barlow's internal report concerning the incident impeded her attempt

"to apply for a sergeant spot." Plaintiff later was issued disciplinary charges

stemming from the incident.

From March 2015 to September 2017, plaintiff was assigned to the Gangs

and Organized Crime South Unit (Gangs Unit). During that time, Davis was the

unit's assistant head. Although Davis was not plaintiff's direct supervisor,

plaintiff testified Davis said "he was watching over [her]" and "she wasn't a team

player." According to plaintiff, Davis "approach[ed] her in front of everyone,"

making it clear to "everyone in the [Gangs U]nit that he was disappointed with

[her]."

From August 2016 to August 2017, Brown was assigned to the Gangs Unit

as a sergeant first class. Plaintiff testified, at the end of August 2017, Brown

"create[d] a hostile work environment for [her]." As one example, plaintiff

testified Brown made an internal report stating "[plaintiff] said fuck you to him"

when both she and Brown "would always bullshit on the phone" saying "fuck

this, fuck that . . . this sucks." Plaintiff also testified about another occasion

when Brown called her while she was at a doctor's appointment and accused her

of failing to provide the requisite notice regarding her sick day. Plaintiff

maintained she gave proper notice.

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On August 28, 2017, plaintiff was placed on administrative leave for

medical reasons. At that point, she had exhausted her paid FMLA leave and

paid sick time. That same day, plaintiff filed a complaint with the Civil Service

Commission's Division of Equal Employment and Affirmative Action (EEO

complaint) against Davis.1 In the EEO complaint, plaintiff claimed she was

"discriminated, harassed, bullied, intimidated at work due to [her] gender as a

female detective." Plaintiff sought "a hostile-free work environment."

Sometime thereafter, plaintiff sought to return to duty.

On January 17, 2018, pursuant to NJSP policy, plaintiff underwent a

fitness-for-duty examination. Following the examination, plaintiff was not

cleared for duty; her service weapon was not returned. Certain treatment was

required for her return to full duty.

Following a subsequent examination in May 2018, plaintiff was cleared

for "non-safety sensitive/modified duty capacity." Later that year, her title was

changed from Detective I to Trooper I. Defendants assert the redesignation was

made pursuant to "NJSP's Standing Operating Procedure (SOP) C12," which

states, "[d]etectives permanently reassigned to positions not performing

1

Plaintiff's EEO complaint is dated August 28, 2017, but was received by the

EEO officer on January 23, 2018.

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investigative related functions will be re-designated troopers." New Jersey State

Police, Standing Operating Procedure C12 § II(A)(4)(b) (rev. 2019). It is

undisputed that "[t]he only difference in salary between NJSP employees with

the designation Detective I and Trooper I is a $100 clothing allowance" for

Detective I employees.

Nor do the parties dispute that in April 2018, "while working in a limited

duty capacity," plaintiff "conduct[ed] an unauthorized school presentation, on

behalf of NJSP." Plaintiff was issued disciplinary charges. In March 2020,

plaintiff pled guilty to the charges stemming from this incident.

In the interim, on May 1, 2019, plaintiff filed her initial complaint against

defendants. In the first three counts, plaintiff alleged violations of the LAD,

asserting: Brown and Barlow "discriminat[ed] against her based on her

pregnancy and gender" (count one); "Davis perpetrated a pattern and practice of

harassment and retaliation against [her]" from August 17, 2017 "to date" (count

two); and (3) defendants created a hostile work environment based on plaintiff's

gender (count three). Plaintiff also asserted common law intentional inflection

of emotional distress (IIED) (count four). In September 2020, plaintiff amended

her complaint, adding CEPA violations: "adverse and retaliatory employment

action" (count five); and "constructive discharge" (count six).

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At the close of discovery, defendants moved for summary judgment.

Following supplemental briefing, the judge heard argument and reserved

decision. On June 29, 2023, the judge issued a well-reasoned oral decision,

spanning thirty transcript pages. 2

In his decision, the motion judge squarely addressed the sufficiency of

plaintiff's gender and pregnancy discrimination allegations in view of the

controlling legal principles. Citing our decision in Cortez v. Gindhardt, 435 N.J.

Super. 589, 606 (App. Div. 2014), the judge found plaintiff's "unsubstantiated

inferences and bare conclusions" did not defeat summary judgment. The judge

conducted a thorough review of the record addressing seriatim each count

asserted in plaintiff's complaint.

As to count one, the judge was persuaded plaintiff's allegations against

Barlow were time-barred under the two-year statute of limitations for LAD

claims pursuant to N.J.S.A. 2A:14-2(a) and Alexander v. Seton Hall University,

204 N.J. 219 (2010). Noting plaintiff had no contact with Barlow after October

2014, the judge found the claims against Barlow expired in October 2016, and

were time-barred because plaintiff did not file her initial complaint until May 1,

2

Plaintiff did not provide the transcript of oral argument. We glean the

arguments raised by the parties from the judge's decision.

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2019. The judge also rejected plaintiff's argument that the continuing violation

doctrine applied because she failed to analyze how an LAD claim was viable

against Barlow. Instead, plaintiff "admit[ted in] her responsive statement of

material facts that after October of 2014, her only interactions with Barlow were

occasionally seeing him at [NJSP] functions."

Recognizing plaintiff's claims against Brown were timely, the judge cited

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

411 U.S. 792, 802-03 (1973), as adopted by New Jersey courts. See e.g., Viscik

v. Fowler Equip. Co., 173 N.J. 1, 13-14 (2002). But the judge found plaintiff

failed to sustain her burden of establishing a prima facie LAD claim based on

pregnancy or gender because "the record contain[ed] no evidence that [her]

gender or pregnancy played a role in any encounter" with Brown. The judge

found "[p]laintiff fail[ed] to state how any material fact in relation to her

encounters with Brown [wa]s in dispute" and only cited "her deposition

testimony" in lieu of competent evidence, such as "any other affidavit, . . .

document, or testimony." The judge concluded the record was devoid of any

evidence that "[plaintiff]'s misconduct occurred for any reason other than her

own actions with respect to any of the specific incidents involving Brown."

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Turning to the second count, the judge found plaintiff's LAD claims were

barred under CEPA's waiver provision, N.J.S.A. 34:19-8 (providing, in pertinent

part, an action filed under CEPA is "deemed a waiver of the rights and remedies

available" pursuant to any state statute or the common law); see also Young v.

Schering Corp., 141 N.J. 16, 29 (1995).

Regarding count three, which alleged a hostile work environment against

all defendants, the judge again found plaintiff's claims against Barlow were

time-barred and the continuing violation doctrine was inapplicable. Similarly,

the judge found any allegations regarding Strassheim's conduct were time-

barred because "[plaintiff] admitted that after July 2014, she was never assigned

to the same unit as Strassheim and had no further interactions with him." The

judge nonetheless addressed the merits of plaintiff's allegations against

Strassheim and concluded "the record is clear that [plaintiff]'s work performance

deficiencies were the sole cause of the numerous formal charges she received

from Strassheim and Barlow" as plaintiff proffered "no evidence which even

suggest[ed] that her gender or pregnancy played a role in Strassheim's decision

to issue her any disciplinary charges."

The judge also rejected plaintiff's allegations against Davis, finding none

of the incidents plaintiff cited "[was] sufficiently severe or pervasive to create a

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hostile work environment." Regarding plaintiff's claims against Davis, the judge

referenced plaintiff's EEO allegations were not substantiated by the Attorney

General's EEO office, which "found no evidence that [her] gender played any

role in Davis's conduct during the call."

Citing our decision in Turner v. Wong, 363 N.J. Super. 186, 199 (App.

Div. 2003), the motion judge dismissed plaintiff's IIED claims asserted in count

four. The judge recognized plaintiff sought professional treatment around the

time of the August 2017 incident with Davis, but found plaintiff "failed to plead

any details or present any competent evidence" and her allegations did not meet

the elevated threshold for IIED claims pursuant to our decision in Ingraham v.

Ortho-McNeil Pharmaceutical, 422 N.J. Super. 12, 21 (App. Div. 2011)

(recognizing the threshold "is satisfied only in extreme cases"). See also Griffin

v. Tops Appliance City, Inc., 337 N.J. Super. 15, 23 (App. Div. 2001).

Finally, the motion judge found plaintiff failed to establish a CEPA claim,

because she failed to satisfy the existence of an adverse employment action

under the third prong of Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). In

particular, the judge found plaintiff filed her EEO complaint against Davis in

August 2017, and her designation from Detective I to Trooper I did not change

until December 2018 – more than one year after she submitted her August 2017

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EEO complaint. Citing, at length, the undisputed facts, the judge concluded

"[plaintiff's] job duties only changed because of recommendations that resulted

from her fitness-for-duty exams that she was required to undergo pursuant to

state policy." This appeal followed.

Before us, plaintiff argues the motion judge erred in granting summary

judgment by "inexplicably" determining her "sworn testimony was not

competent evidence." Plaintiff also argues the judge erroneously concluded she

failed to demonstrate an adverse employment action under CEPA. Lastly,

plaintiff contends the judge failed to properly analyze her hostile work

environment LAD claim by misapplying the continuing violation doctrine.

We review de novo the motion court's decision on summary judgment.

Conforti v. Cnty. of Ocean, 255 N.J. 142, 162 (2023). Employing the same

standard as the motion court, we review the record to determine whether there

are material factual disputes and, if not, whether the undisputed facts viewed in

the light most favorable to plaintiff, as the non-moving party, nonetheless entitle

defendants to judgment as a matter of law. See Samolyk v. Berthe, 251 N.J. 73,

78 (2022); Brill, 142 N.J. at 540; see also R. 4:46-2(c). "[C]onclusory and self-

serving assertions by one of the parties are insufficient to overcome the motion ."

Puder v. Buechel, 183 N.J. 428, 440-41 (2005). We owe no deference to the

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court's legal analysis or interpretation of a statute. Palisades at Fort Lee Condo.

Ass'n v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017).

We have considered plaintiff's contentions in view of the applicable law

and the motion record, and conclude they lack sufficient merit to warrant

extended discussion in our written opinion, R. 2:11-3(e)(1)(E). We affirm

substantially for the reasons expressed by the motion judge in his well-reasoned

oral decision. We add only the following remarks.

"The statute of limitations for LAD claims is two years." Roa v. Roa, 200

N.J. 555, 566 (2010). "For causes of action arising under anti-discrimination

laws, however, a judicially created doctrine known as the continuing violation

theory has developed as an equitable exception to the statute of limitations. "

Ibid. (quoting Bolinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div. 2000)).

Under that doctrine, when a plaintiff demonstrates a "continual, cumulative

pattern of tortious conduct, the statute of limitations does not begin to run until

the wrongful action ceases." Wilson v. Wal-Mart Stores, 158 N.J. 263, 272

(1999).

To establish a prima facie CEPA claim, the employee must prove

(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;

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(2) he or she performed a "whistle-blowing" activity

described in N.J.S.A. 34:19-3(c);

(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, 177 N.J. at 462.]

CEPA defines actionable retaliation as "the discharge, suspension or

demotion of an employee, or other adverse employment action taken against an

employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e).

Neither an investigation of an employee nor substantiated disciplinary charges

are considered retaliatory. See Beasley v. Passaic Cnty., 377 N.J. Super. 585,

606 (App. Div. 2005). "Where the affected party does not deny committing an

infraction that resulted in discipline, the discipline cannot be considered

'proscribed reprisal.'" Id. at 607 (quoting Esposito v. Twp. of Edison, 306 N.J.

Super. 280, 291 (App. Div. 1997)).

We reject plaintiff's argument that the judge erred in granting summary

judgment as a matter of law. Having conducted a de novo review of the record,

there is no competent evidence to support plaintiff's claims, which are based

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primarily on her self-serving deposition testimony. See Puder, 183 N.J. at 440-

41. Accordingly, plaintiff's LAD and CEPA claims are not viable.

Affirmed.

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