The opinion
NOT FOR PUBLICATION WITHOUT THE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-1642-23
RENE EDGHILL SMITH,
Plaintiff-Appellant,
v.
NEW BRUNSWICK BOARD
OF EDUCATION, AUBREY A.
JOHNSON, Superintendent of
New Brunswick Schools, and
KENNETH M. REDLER, Principal
of New Brunswick High School,
Defendants-Respondents.
___________________________
Argued March 20, 2025 – Decided March 28, 2025
Before Judges Mawla, Natali, and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-1445-20.
Luretha M. Stribling argued the cause for appellant.
Jillian T. Stein argued the cause for respondents
(Kluger Healey, LLC, attorneys; Jillian T. Stein, on the
brief).
PER CURIAM
Plaintiff Rene Edghill Smith appeals from a January 5, 2024 order
granting summary judgment in favor of defendants New Brunswick Board of
Education (NBBOE), Aubrey A. Johnson, the Superintendent of New Brunswick
Schools, and Kenneth E. Redler, Principal of New Brunswick High School ; and
dismissing her complaint with prejudice. We affirm.
Plaintiff was hired in 2016, as one of four vice principals at New
Brunswick High School, and worked there for three school years as a nontenured
employee. Her contracts each lasted one school year and were subject to
renewal after each school year. Following the 2018-19 school year, plaintiff's
contract was not renewed. Plaintiff is Black and was fifty-nine-years-old at the
time of her non-renewal. She sued pursuant to the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -50, alleging: race and age
discrimination; a hostile work environment and retaliation; and Johnson aided
and abetted in the discrimination. Her complaint also sought punitive damages.
Following the close of discovery, defendants moved for summary
judgment. The motion judge adjudicated defendants' motion and issued a
written opinion detailing the parties' arguments, the salient facts, and applicable
law. We take the following facts from the summary judgment record.
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At her deposition, plaintiff testified she first applied for a vice principal
position at New Brunswick Middle School but received an interview for a
position at the high school. Another vice principal and Redler interviewed
plaintiff. Redler and Johnson then decided to hire plaintiff as a vice principal at
New Brunswick High School. Redler is Caucasian and older than plaintiff.
Plaintiff testified Johnson was younger than her and Hispanic/Latino.
NBBOE's nonrenewal policy for nontenured staff "recognizes its
obligation to employ only those professional staff members best trained and
equipped to meet the educational needs of the pupils of this district" and "[w]hen
it appears that a teaching staff member's performance does not meet the
standards of the district, the [s]uperintendent shall consider recommending to
the [NBBOE] that any such member not be reemployed." Any staff member
whose contract has not been renewed "may apply in writing to the [NBBOE]
within fifteen days of notification for the reasons for nonrenewal" and will have
"an opportunity to meet informally with the [NBBOE]." Following an "informal
hearing," the NBBOE "may . . . offer the teaching staff member reemployment"
but "is not required to."
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3
"The [NBBOE] may dismiss a nontenured teaching staff member when
dismissal is in the best interest of the school district." It may also "terminate a
nontenured employee without notice when sufficient cause warrants."
Plaintiff was assigned to oversee the tenth grade and history department.
This differed from her prior roles in other school districts because she was now
overseeing an entire grade. Plaintiff testified her workload and responsibilities
increased the longer she was employed with the NBBOE as she became
acclimated. When she first started working, Redler "was available," "open[,]"
"courteous[,] and polite." However, he was also "anxious[,]" which plaintiff
thought was due to "just being principal to the high school."
Redler stated he conducted three observations, or evaluations, of
nontenured vice principals during the school year. Plaintiff received evaluation
summaries from Redler, which were a collective of all three of her observations.
The evaluation summaries assess whether the given responsibility was "[n]ot
[d]emonstrated[,]" "[d]eveloping[,]" "[p]roficient[,]" "[a]ccomplished[,]" or
"[d]istinguished[,]" and then the evaluator provides a summative rating.
Beyond the evaluation summaries, Redler also evaluated the vice
principals' "[j]ob performance throughout the year" and whether they were
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"meeting district expectations." If improvement was needed, Redler
"[g]enerally" handled that with "conversations, sometimes memos."
NBBOE Director of Human Resources, Zuleima Perez described the
evaluation process like Redler. She further certified there is no NBBOE policy
"that requires renewal of a non-tenured employee's contract simply because
[they] received a summative rating of '[e]ffective'" on their observations or
evaluation summary.
For plaintiff's first year as vice principal during the 2016-17 school year,
she predominantly received marks of "[d]eveloping" for each responsibility and
received a few marks of "[p]roficient" on her observations. Redler
recommended she "discuss initiative[s] with the vice principals in the building"
because "working in isolation can lead to confusion and misconceptions among
teachers and administration," and plaintiff "must collaborate with administrators
making sure [she was] not providing discipline against what has already been
put in place." At the end of her first year, plaintiff received a summative rating
of 2.8. This was considered effective on the rating scale, which defined effective
as a score between 2.65 and 3.49. Plaintiff acknowledged her score was on the
"low end," and Redler stated she had a learning curve during her first year and
"required a lot of support, which was given."
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In April 2018, plaintiff created an entry in a discipline log for a student
for "[i]nappropriate [b]ehavior/[c]ontact." The entry stated a student would not
leave the cafeteria after being asked and told plaintiff to "[g]et away from [her]."
Plaintiff "told her I don't know who she slept with last night but she didn't wake
up with me this morning," and she was being disrespectful.
Plaintiff predominantly received scores of "[d]eveloping" or "[p]roficient"
in her observations for the 2017-18 school year. Redler recommended she
"communicate frequently either in person or via email to pass information to
[the principal]" and "work on establishing systems and procedures that minimize
loss of . . . instructional time." At the end of her second year, plaintiff again
received a summative rating of 2.8.
Plaintiff testified she felt her observation and evaluation scores "did not
reflect the work that [she] was doing" and the summative rating of 2.8 was
unfair. When asked if she felt it was unfair because she was targeted due to her
race, she stated, "I feel that I was targeted. Period." When asked to explain why
she felt she was targeted, plaintiff said, "I can't answer that question. I don't
know. I'm not sure."
During the second half of 2018, a teacher under plaintiff's supervision told
"her class that she was in support of Trump building a wall," causing students
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from that teacher's class to inform plaintiff about the comment. Plaintiff then
spoke with Redler and met with the teacher, who said she would apologize to
her class. Plaintiff told the teacher that "as an agent of the school, she is to stay
neutral and not share her personal feelings in regard[] to politics with the
students," and gave the teacher a verbal warning. Redler testified he had no
problem with the way plaintiff handled the teacher's discipline.
In December 2018, plaintiff received an "ineffective" observation score.
Redler stated plaintiff "refused to sign" the observation, which resulted in him
writing her up. Plaintiff later brought evidence to Redler to show she should
have received a higher rating, and he changed her score for the December 2018
observation from 1.6 to around 2.64.
In January 2019, several students approached plaintiff regarding another
teacher they had recorded "standing in front of the class saying I want to say the
word n****r." Redler agreed the teacher should not have made the comment
and confirmed she was reprimanded in writing by the vice principal who
supervised the teacher.
The teacher then responded to the written reprimand and attempted to
explain that a student had been playing a video "in which the presenter started
to curse" and she told the student to turn the video off. According to the teacher,
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"[t]hat student stated that at least it didn't say the 'n' word" and that she "ha[s]
told them many times that [the] 'n' word is not appropriate and they tell [her] 'it
is ok, it's not bad.'" "Thinking this would be a teachable moment," the teacher
rhetorically asked "why it is not offensive for some people to say the 'n' word,
while others can't? That's racist[,] isn't it?" The teacher "always believed that
school was a place to discuss different views on contemporary issues."
Plaintiff felt like additional discipline was appropriate for this teacher
because other teachers had been dismissed for less egregious conduct. Redler
called the teacher into his office and had a conversation with her about it with a
union representative, and confirmed the written reprimand would remain in her
file. He testified the teacher's comment was "not appropriate, but it wasn't
determined to be racially[-]motivated."
By winter 2018, plaintiff testified Redler's communication style changed
and he "wasn't as available." He became "curt" and "[t]he tone in which [she]
was spoken to changed" and "wasn't so polite." Plaintiff felt "a lack of
communication" and "just felt . . . [l]ike there was a bias." She alleged she "was
the last one to know" and the other vice principals would learn about things
before she did. Plaintiff admitted that one of the vice principals knew of the
scheduling changes quicker because Redler put him in charge of the guidance
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8
department, which was involved in the process. The other vice principal was
the one who made the scheduling decisions and "would be aware of the changes
to the schedules because she made them." Nonetheless, plaintiff claimed the
female vice principal in charge of scheduling changes did not communicate with
her things that she should have, including when teachers under plaintiff's
supervision had schedule changes. When plaintiff brought these concerns to
Redler, he informed her that he had approved the schedule changes. Plaintiff
never complained to Redler concerning her belief the vice principal handling the
scheduling was singling her out.
Throughout the 2018-19 school year, plaintiff complained about Redler to
the third vice principal. Plaintiff asserted the third vice principal, also a female,
had similar complaints regarding the failure to communicate matters in a timely
manner. According to plaintiff, other teachers she supervised, and students,
complained about Redler as well. Plaintiff believed Black students "were not
taught or treated the same way as the other students in the building" and Redler
"oversaw and allowed it to happen."
Plaintiff conceded neither Redler nor Johnson ever said anything about
her that made her feel discriminated against. Although plaintiff did not
complain about Johnson, she claimed some teachers "saw all people that looked
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9
like they were [W]hite and no one . . . [B]lack" in the "central office[,]" where
Johnson worked with his staff. Plaintiff never heard anyone from the NBBOE
say anything about her that was inappropriate or discriminatory. Nonetheless,
she "felt really lost and left out and not included" during the 2018-19 school
year, and Redler did not support her.
Plaintiff did not report anything to human resources because she thought
it "would be brought back to" Redler. She told Johnson she felt excluded and
"was not comfortable[,]" but did not recall whether she told him there was bias
or discrimination against her and she could not remember exactly what she told
him.
Plaintiff "got the impression that [she] was thought of [as] less than" other
administrators by Redler because he "seemed to [make] an effort for a way of
communicating with them[,] which did not occur with [her]." Redler and others
"[b]lamed [her] for things that they themselves have done[,]" "[l]eft [her] out of
meetings[,]" "[d]ismissed [her] from meetings[,]" and were not "upfront with
staff and decisions made with the staff that [she] supervise[d]."
When other vice principals did not want to do something, such as teacher
observations, she was given their responsibilities. On the other hand, plaintiff
conceded teacher observations were a team effort. She also admitted part of her
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job duties as vice principal included "complet[ing] additional assignments as
directed by the principal." Redler confirmed this when he testified "all vice
principals were treated equally, . . . took on additional observations[,]" and
worked to "catch up" in the 2018-19 school year. Plaintiff was invited to all
administrator team meetings and was "never omitted from a meeting that the
team was supposed to be there for."
In spring 2019, two students told plaintiff their Spanish teacher "said to
them, where do you think you are, in the jungle[?]" Plaintiff spoke with five
students, two of whom were Black, about this incident and they thought the
teacher made the comment because they were Black. She spoke with the teacher,
who claimed "[s]he said, where do you think you are, in the streets[?]" Plaintiff
also spoke with Redler about this incident, but she did not make any notes in the
teacher's file because she did not supervise her.
In April 2019, plaintiff had her second observation for the 2018-19 school
year and received scores in the developing and proficient categories. Since
plaintiff only had two observations for the 2018-19 school year, she did not
receive an evaluation summary or summative rating for that year. However,
Redler testified he had areas of concern regarding her performance for that
school year.
A-1642-23
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Plaintiff oversaw advanced placement (AP) testing. She ordered the
wrong material for the AP History test and did not check it until just before the
test. This required the school "to call the [S]tate and make adjustments and
reorder new material, which cost the district money and delayed the testing."
Redler testified "several students missed instructional time as a result of
[plaintiff's] poor planning when it came to [the] scheduling for testing" and she
was "offering students extra credit without conferring with teachers."
Redler also stated that in front of the entire faculty, plaintiff accused child
study team members "of not working through their [individualized education
programs] to place [students] in classes correctly" and humiliated them by
telling them they were "not doing their job." He stated the conversation should
have occurred in private because employees are not publicly disciplined. The
child study employees "went to their immediate supervisor and said they've
never been so embarrassed in their lives." Plaintiff claimed she did not identify
the child study team and only said "the adults dropped the ball."
Redler was also concerned about plaintiff's April 2018 exchange with the
female student because plaintiff wrote "I didn't sleep with you last night" in the
student's file, "it's written in her disciplinary report that's viewable to her parents
and stays on her record." Plaintiff made a similar comment to a male student
A-1642-23
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who became upset and "took it as a sexual statement." When Redler
investigated, two students confirmed they heard plaintiff make statements like
those made to the male student. Redler issued plaintiff a verbal warning about
these incidents and counseled her not to make such inappropriate statements.
Redler also criticized plaintiff when she failed to immediately report an
incident involving a student who threatened to "shoot up the building." Plaintiff
thought another teacher had already informed Redler.
On May 1, 2019, the vice principal handling the January 2019 incident
involving video of the teacher saying the racial slur forwarded her written
reprimand, the teacher's response, and the video of the incident to human
resources. Plaintiff was not copied on the email. Redler did not know plaintiff
was involved in the incident.
On May 9, 2019, plaintiff received a non-renewal letter of termination.
Redler stated plaintiff was not renewed due to her "job performance." On June
19, 2019, Redler wrote a letter memorializing that he had given plaintiff her
letter of nonrenewal on May 10, 2019. The letter cited the: child study team
and AP testing incidents; poor ratings on plaintiff's December 2018 observation
and her reprimand for failing to sign that observation; communication issues
surrounding "programs and initiatives [plaintiff] is in charge of"; "send[ing] pre-
A-1642-23
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conference forms to the [s]ocial [s]tudies staff that was an unapproved form ;"
"not communicat[ing] a potential threat to the school on December 20, 201 8;"
and her statements to students that she had not been sleeping with them.
The third vice principal who was involved in reprimanding the teacher for
using the racial slur is also Black and was not renewed after the 2018-19 school
year. Redler testified that decision had nothing to do with the reprimand because
he felt she handled the matter appropriately. The NBBOE also did not renew:
a male teacher whom plaintiff identified as Haitian and in his thirties; a Black
male teacher in his forties; and a Caucasian female teacher.
Plaintiff requested a meeting to discuss her termination with the NBBOE .
There, Redler presented his reasons for plaintiff's non-renewal and plaintiff
presented her case. Following the hearing, the NBBOE affirmed the
nonrenewal.
Redler testified a Black male was hired to replace the third vice principal
who was also not renewed, and Perez certified that person was fifty-two years
old. A forty-six-year-old Hispanic female with several years of experience as a
vice principal was hired to replace plaintiff.
Based on these facts, the motion judge reasoned defendants were entitled
to summary judgment. He dismissed the race and age discrimination counts of
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plaintiff's complaint because although she was a member of a protected group,
race- and age-wise, "the record is replete with overwhelming evidence of
legitimate business reasons for non-renewal." He found no evidence "any racist
or ageist remarks were ever made by [p]laintiff's supervisors or the
decisionmakers [nor] . . . evidence that preferential treatment was given to
employees not in the same protected class as [p]laintiff."
Redler's lack of communication did not constitute discrimination because
"the other [v]ice [p]rincipals and other staff share[d] similar complaints around
the same time she did." Moreover, the Caucasian male vice principal also
received a low observation score. The extra work given to plaintiff was not
evidence of discrimination because all vice principals were required to take on
extra work and the observations assigned to plaintiff were because the vice
principal who had them "was busy with student scheduling."
The judge found "the mere sequence of events leading to [p]laintiff's non-
renewal . . . belie[d] any inference of discriminatory animus." There was "no
. . . evidence to establish a causal link between [plaintiff's] termination and her
reporting" the teacher who made the comment about a border wall. The teacher's
comment was reported in the second half of 2018 and plaintiff was not renewed
in May 2019.
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The judge noted the other employees who were not renewed were not
members of plaintiff's protected class, race- or age-wise. A Caucasian male in
his thirties and two Caucasian females were not renewed. A Hispanic/Latino
male teacher was also not renewed. The judge concluded "[t]he fact that other
staff who are not members of the same protected class as [p]laintiff were also
disciplined or terminated and did not receive better treatment than [p]laintiff
eviscerates her discrimination claim."
The fact the teacher who made the racial slur was not terminated did not
evidence discrimination because she was not similarly situated to plaintiff . She:
"did not engage in the same conduct as [p]laintiff; . . . was tenured . . . ; had no
other complaints before or since the . . . incident . . . ; and [was not] an
administrator." One of the vice principal positions after plaintiff was not
renewed was filled by a Black person. "Moreover, the record shows . . . Redler
. . . did not experience any of the same performance issues with either of the
new [v]ice [p]rincipals that he had with [p]laintiff and . . . the new Black [v]ice
[p]rincipal . . . remains employed by NBBOE."
The age discrimination claim did not survive because Redler and Johnson
were the ones who hired plaintiff. Redler is older than plaintiff, and plaintiff
was hired at fifty-three years of age and non-renewed just three years later.
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The judge found the NBBOE did not discriminate against plaintiff because
it afforded her a hearing. There, she was able to "present her reasons for
objecting to her non-renewal at a hearing in front of the full Board of
Education[,] whom [p]laintiff admitted . . . was [comprised] of Black members."
The fact the neutral members of the NBBOE "adopted Redler's recommendation
that [p]laintiff's employment not be renewed . . . after hearing from her
constitutes further evidence that the business reasons underlying [p]laintiff's
non-renewal were legitimate and non-discriminatory." Indeed, "none of the
actions by [d]efendants were in any way racially- or age-motivated."
The judge declined "to infer a racial overtone in every employment
decision and every interaction between a supervisor and an employee of
different racial background." Doing so "would permit an individual's subjective
perception and reaction to determine the objective question of the
decisionmaker's liability." Defendant's actions were not pretextual because "the
record is overwhelming that any and all actions taken against [p]laintiff by
[d]efendants were based on legitimate, non-discriminatory reasons related
exclusively to [p]laintiff's poor job performance."
The judge dismissed the hostile work environment claim because there
was no evidence Redler engaged in harassing conduct. Plaintiff never
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complained "Redler subjected her to derogatory remarks, insults[,] or any verbal
abuse." Plaintiff's claims "that her interactions with Redler changed over time,
and he avoided communicating with her, ignored her, gave her increased work
assignments, scrutinized her, and reprimanded her for not signing her December
2018 evaluation" was not "because of [p]laintiff's race or age[,] but for
legitimate reasons."
The judge found plaintiff was not singled out because of her race or age
because she admitted Redler "was still sometimes courteous." As we recounted,
the other two vice principals learned of scheduling changes before plaintiff
because they were charged with those tasks. "Plaintiff did not tie [the scheduling
changes] to [her] age or race." She admitted her increased responsibilities were
a part of the job. Plaintiff did "not allege she was assigned any task that was
outside of her job responsibilities[,]" and "the other non-Black [v]ice
[p]rincipal[] was assigned additional responsibilities that she was not."
Therefore, there was "nothing in the record to evidence [p]laintiff was singled
out in any way for extra work because she is Black or because of her age."
The reprimand plaintiff received for not signing the December 2018
evaluation was not evidence of harassment because plaintiff admitted she did
not sign her observation even though she knew that signing it was merely an
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acknowledgment that she had seen it— not that she agreed with it. Moreover,
she never tried to address the reprimand with Redler, a union representative, or
human resources. Therefore, even if the reprimand constituted harassment, "her
subsequent lack of contemporaneous complaint or other response thereto , [did]
not warrant any inference of improper motive behind it."
"Plaintiff admitted neither Redler[] nor . . . Johnson, nor anyone employed
by the NBBOE ever said anything . . . she felt or viewed was inappropriate or
discriminatory." The inappropriate statements were made by teachers to
students, not plaintiff, and those teachers were disciplined. There was no
evidence the discipline was ineffective or that there were other racist or
offensive comments made by either teacher after they were disciplined.
The judge concluded the record lacked evidence of severe or pervasive
harassing conduct by defendants. Aside from the incident regarding the racial
slur, which was not directed at plaintiff, "there were no other racial slur incidents
involving anyone." The judge noted that
[e]ven when viewed cumulatively, the acts alleged . . .
are insufficient to present a hostile work environment
claim to a jury. . . . Plaintiff has not identified a single
objectively offensive remark—let alone racist or
ageist—made by Redler or any other supervisor, either
in her presence, directed against her, or otherwise.
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In sum, "no reasonable jury could conclude that [d]efendants' actions or
inaction could be seen as severe, pervasive, hostile[,] or abusive" as a matter of
law. Therefore, plaintiff did not establish a prima facie case of hostile work
environment and there was no presumption warranted to conclude the alleged
harassment occurred because of plaintiff's race or age.
The judge dismissed plaintiff's retaliation claim because she could not
show she engaged in any protected activity. Although the teacher's comment
regarding the border wall was "insensitive and inappropriate in a school setting,
. . . [b]y her own admission, . . . [p]laintiff did not believe [it] was racist or
otherwise discriminatory." There was no evidence to show defendants knew of
plaintiff's involvement in the racial slur incident to establish "she was engaged
in protected activity known to the employer."
Plaintiff never reported any alleged violation of the district's policies. She
"never reported any perceived discrimination or retaliation against her during
her employment or before the [NBBOE] at her hearing to appeal her non-
renewal." There was "no temporal proximity to establish a nexus" between the
border wall or the racial slur incidents and plaintiff's non-renewal. The former
incident happened in 2018, the latter happened in January 2019, and plaintiff
was not renewed in May 2019. Redler also had no knowledge of plaintiff's
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involvement in the latter incident. Therefore, "no inference can be made that
Redler's non-renewal recommendation was motivated by something he was
unaware of." "Defendants had legitimate and non-retaliatory reasons for not
renewing" plaintiff.
The judge dismissed all of plaintiff's claims against Johnson because
"there is nothing in the record which provides a plausible basis for such
liability." Nothing showed Johnson encouraged or facilitated any aspect of the
alleged harassment by Redler, was present for it, or could foresee or prevent it
to ascribe liability to him under an aiding and abetting theory.
The judge dismissed the punitive damages claim because plaintiff did not
establish a prima facie case of discrimination. He concluded "no facts to warrant
punitive damages in this case."
I.
Plaintiff argues summary judgment should not have been granted because
her deposition was not concluded, and the record was incomplete. We are
unpersuaded.
Plaintiff filed her complaint on December 1, 2020, and the matter was
joined when defendants answered the complaint on February 11, 2021.
Discovery in this case was extended three times; first by consent on April 8,
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2022, by which discovery was extended to July 6, 2022; then by court order on
July 5, 2022, whereby discovery was extended for 177 days; and then by way of
a consent order prepared and submitted by plaintiff's counsel on September 27,
2022, which the court entered on September 29, 2022, extending discovery to
February 28, 2022.
In the meantime, plaintiff's deposition occurred on August 17, 2022, but
her attorney ended it early because she did not anticipate it lasting so long and
late into the day. The September 2022 consent order made no mention of
continuing plaintiff's deposition.
In October 2022 defendants moved to compel discovery, and plaintiff
cross-moved for discovery as well. The court granted defendants' motion and
granted plaintiff's motion in part. Plaintiff's motion made no mention of
continuing her deposition. Defendant moved to extend discovery on November
30, 2022. On December 8, 2022, for the first time, plaintiff cross-moved and
asked the court to compel her own deposition.
The cross-motion was premised on plaintiff's assertion her attorney was
unable to conduct "redirect questioning, [because the deposition transcript]
lack[ed] balance and elaboration [and] . . . to provide context to [plaintiff's]
testimony and . . . further support the claims made in this litigation." On
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December 16, 2022, the judge granted defendants' motion to extend discovery
until March 31, 2023, but denied plaintiff's cross-motion to continue her
deposition. Plaintiff did not challenge the December 16 order and thereafter
discovery closed, and defendants moved for summary judgment.
Preliminarily, we note neither plaintiff's notice of appeal, nor her appellate
case information statement, list the December 16 order as subject to this appeal.
"[W]e review 'only the judgment or orders designated in the notice of appeal.'"
Kornbleuth v. Westover, 241 N.J. 289, 299-300 (2020) (quoting 1266 Apartment
Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004)).
The December 16 order noted the judge had placed his findings of fact
and conclusions of law on the record on that date. Plaintiff has not provided us
with a copy of the transcript containing the judge's findings as required by Rule
2:5-3(b).
Notwithstanding these omissions, we are satisfied the completion of
plaintiff's deposition was not an impediment to deciding the summary judgment
motion. Generally, "[i]t is 'inappropriate' to grant summary judgment when
discovery is incomplete and 'critical facts are peculiarly within the moving
party's knowledge.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting
James v. Bessemer Processing Co., 155 N.J. 279, 311 (1998)). However,
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"'summary judgment is not premature merely because discovery has not been
completed, unless' the non-moving party can show 'with some degree of
particularity the likelihood that further discovery will supply the missing
elements of the cause of action.'" Ibid. (quoting Badiali v. N.J. Mfrs. Ins. Grp.,
220 N.J. 544, 555 (2015)). Although "summary judgment should be withheld
until completion of discovery, . . . discovery need not be undertaken or
completed if it will patently not change the outcome." Minoia v. Kushner, 365
N.J. Super. 304, 307 (App. Div. 2004).
Plaintiff has not shown how the redirect examination would change the
result in any way. The record fully explicates the facts related to plaintiff's
discrimination claims. Regardless of her deposition, plaintiff was able to certify
to the facts in her opposition to summary judgment and could have filed an
amended affidavit before the court adjudicated summary judgment.
II.
Plaintiff asserts the court improperly weighed the evidence in deciding the
summary judgment motion and adopted defendants' position while discounting
hers, which evidenced a bias against her. She argues she established a prima
facie case for all the claims in her complaint.
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We review a decision on summary judgment de novo and apply the same
standard as the motion judge. Meade v. Twp. of Livingston, 249 N.J. 310, 326-
27 (2021). This requires us to view the facts in the light most favorable to the
non-moving party. DiProspero v. Penn, 183 N.J. 477, 482 (2005). On summary
judgment, "[t]he court's function is not 'to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.'"
Meade, 249 N.J. at 327 (quoting Rios v. Meda Pharm., Inc., 247 N.J. 1, 13
(2021)). If "the evidence 'is so one-sided that one party must prevail as a matter
of law,'" summary judgment is proper. Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)).
A.
The LAD prohibits an employer from discriminating based on race and
age. N.J.S.A. 10:5-12(a). The statute follows the procedural burden shifting
analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also
Tisby v. Camden Cnty. Corr. Facility, 448 N.J. Super. 241, 248 (App. Div. 2017)
(quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005)). The burden-
shifting paradigm first requires the plaintiff to demonstrate a prima facie case of
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unlawful discrimination. Ibid. (citing Victor v. State, 203 N.J. 383, 408 (2010)).
A prima facie case is made by showing:
(1) plaintiff belongs to a protected class; (2) [they were]
performing [their] job at a level that met [their]
employer's legitimate expectations; (3) [they] suffered
an adverse employment action; and (4) others not
within the protected class did not suffer similar adverse
employment actions.
[Ibid. (quoting El-Sioufi v. St. Peter's Univ. Hosp., 382
N.J. Super. 145, 167 (App. Div. 2005)).]
As regards the second prong of the prima facie case, "[a]ll that is necessary
is that the plaintiff produce evidence showing that [they were] actually
performing the job prior to the termination." Zive, 182 N.J. at 454. "[E]ven if
a plaintiff candidly acknowledges . . . that some performance issues have arisen,
so long as [they] adduce[] evidence that [they] ha[ve], in fact, performed in the
position up to the time of termination, the slight burden of the second prong is
satisfied." Id. at 455.
Once a plaintiff presents a prima facie case, "an 'inference of
discrimination' is created." Tisby, 448 N.J. Super. at 248 (quoting Zive, 182
N.J. at 449). An employer can rebut the inference "by articulating a 'legitimate,
nondiscriminatory reason for the employer's action.'" Id. at 248-49 (quoting
Zive, 182 N.J. at 449). Where an employer does so, the burden "shifts back to
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the employee to prove the reason provided by the employer is 'merely a pretext
for discrimination and not the true reason for the employment decision.'" Id. at
249 (quoting Zive, 182 N.J. at 449).
A plaintiff can prove pretext by "point[ing] to some evidence, direct or
circumstantial, from which a factfinder could reasonably either (1) disbelieve
the employer's articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative
cause of the employer's action." Zive, 182 N.J. at 455-56 (quoting Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). An employer "is entitled to summary
judgment if [a] plaintiff is unsuccessful in this last step." Tisby, 448 N.J. Super.
at 249 (citing Zive, 182 N.J. at 456).
"The fourth element of a prima facie case in an age-discrimination [claim]
properly focuses . . . on 'whether the plaintiff has established a logical reason to
believe that the decision [for termination] rests on a legally forbidden ground.'"
Bergen Com. Bank v. Sisler, 157 N.J. 188, 213 (1999) (quoting Murphy v.
Milwaukee Area Tech. Coll., 976 F. Supp. 1212, 1217 (E.D. Wis. 1997)).
Therefore, a plaintiff must demonstrate they were "replaced with 'a candidate
sufficiently younger to permit an inference of age discrimination.'" Ibid.
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(quoting Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div.
1995)).
Pursuant to our de novo review of the record, we conclude the motion
judge properly dismissed plaintiffs' age- and race-discrimination claims.
Assuming plaintiff established a prima facie case of discrimination, the record
simply does not support the conclusion defendants had anything other than a
legitimate, non-discriminatory reason for not renewing her contract. Indeed, the
record is replete with valid business reasons why defendants parted ways with
plaintiff. Plaintiff has not demonstrated defendants did not renew her based on
a pretextual reason. We affirm the dismissal of the age- and race-discrimination
claims for the reasons expressed by the motion judge. Plaintiff's claims simply
did not survive the burden shifting analysis.
B.
To establish a claim of hostile work environment under the LAD, a
plaintiff must show that the complained-of conduct: "(1) would not have
occurred but for the employee's [protected status]; and it was (2) severe or
pervasive enough to make a (3) reasonable [person] believe that (4) the
conditions of employment [were] altered and the working environment [was]
hostile or abusive." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)
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(emphasis omitted). Remarks by supervisors regarding a protected attribute
suggest a hostile work environment. Taylor v. Metzger, 152 N.J. 490, 502-03
(1998).
"A single comment, if sufficiently severe, may be enough to create a
hostile work[] environment." El-Sioufi, 382 N.J. Super. at 179. However, this
is only the case when the comment is "an outrageous and offensive statement
made by a supervisor directly to the complaining subordinate." Ibid.
Appellate courts apply "an objective standard to evaluate a hostile work
environment claim." Rios, 247 N.J. at 12 (citing Cutler v. Dorn, 196 N.J. 419,
431 (2008)). "The standard focuses on the harassing conduct itself and 'not its
effect on the plaintiff or on the work environment.'" Ibid. (quoting Lehmann,
132 N.J. at 606). Thus, "neither 'a plaintiff's subjective response' to the
harassment, . . . nor a defendant's subjective intent when perpetrating the
harassment . . . is controlling of whether an actionable hostile environment claim
exists." Cutler, 196 N.J. at 431 (quoting Lehmann, 132 N.J. at 604-05, 613).
Any hostile work environment claim "must be evaluated in light of 'all the
circumstances, including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
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performance.'" Rios, 247 N.J. at 10-11 (quoting Cutler, 196 N.J. at 432). To
determine whether conduct is sufficiently severe or pervasive, "courts must
consider the cumulative effect of the various incidents, bearing in mind that each
successive episode has its predecessors, that the impact of the separate incidents
may accumulate, and that the work environment created may exceed the sum of
the individual episodes." Id. at 11 (quoting Lehmann, 132 N.J. at 607).
The record lacks any evidence defendants engaged in severe or pervasive
discriminatory conduct, let alone a single utterance directed at plaintiff that
could constitute a hostile work environment. All the incidents of problematic
behavior were undertaken by plaintiff's subordinates, not directed at plaintiff,
and promptly handled by plaintiff or the persons in charge of the teachers who
made the remarks. Beyond these incidents, there is no evidence Redler or any
defendant reprimanded plaintiff in an unprofessional manner or based on her
protected traits. Redler's attempts to correct plaintiff's performance fell well
within his authority as granted by the NBBOE's policies and his role as her
supervisor. Further, his interactions with plaintiff as compared to the other vice
principals evince no mistreatment of plaintiff in a manner that could be remotely
characterized as creating a hostile work environment. Plaintiff's impressions
were subjective and there is simply not enough to establish a prima facie claim.
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C.
The LAD prohibits retaliation against any person
because that person has opposed any practices or acts
forbidden under this act or because that person has . . .
filed a complaint, testified or assisted in any proceeding
under this act or to coerce, intimidate, threaten or
interfere with any person in the exercise or enjoyment
of, or on account of that person having aided or
encouraged any other person in the exercise or
enjoyment of, any right granted or protected by this act.
[N.J.S.A. 10:5-12(d).]
To establish a prima facie case of retaliation, a plaintiff must demonstrate:
"(1) that [they] engaged in [a] protected activity; (2) the activity was known to
the employer; (3) [the] 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 W. Grp., 385 N.J. Super. 448, 465 (App.
Div. 2005) (citing Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995)).
"Once [the] plaintiff establishes a prima facie case of retaliation, the defendant[]
must 'articulate a legitimate, non-retaliatory reason for the decision.'" Ibid.
(quoting Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543,
549 (App. Div. 1995)).
As a final step, the plaintiff must demonstrate a discriminatory motive and
show the employer's stated reason was merely a pretext for discrimination. See
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Young, 385 N.J. Super. at 465; see also Romano, 284 N.J. Super. at 549.
Relevant factors include "the employee's loss of status, a clouding of job
responsibilities, diminution in authority, disadvantageous transfers or
assignments, and toleration of harassment by other employees[,]" as well as
"assignment to different or less desirable tasks." Mancini v. Twp. of Teaneck,
349 N.J. Super. 527, 564 (App. Div. 2002).
"Although the burden of production shifts throughout the process, the
employee at all phases retains the burden of proof that the adverse employment
action was caused by purposeful or intentional discrimination." Sisler, 157 N.J.
at 211 (citing Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)).
If the plaintiff fails this last step, summary judgment in the employer's favor is
required. Tisby, 448 N.J. Super. at 249.
The record does not support a retaliation claim because it is devoid of any
evidence plaintiff was engaged in a protected activity that defendants knew
about, which they then responded to by not renewing her. In addition to the lack
of facts supporting the first three prongs of a retaliation claim, there was ample
evidence supporting defendants' valid business reasons for not renewing
plaintiff. Therefore, the record also lacked the necessary causal link to establish
a prima facie case for retaliation.
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D.
"[I]ndividual liability of a supervisor for acts of discrimination or for
creating or maintaining a hostile environment can only arise through the 'aiding
and abetting' mechanism that applies to 'any person.'" Cicchetti v. Morris Cnty.
Sheriff's Off., 194 N.J. 563, 594 (2008) (quoting N.J.S.A. 10:5-12(e)). Under
the LAD, "aiding and abetting 'require[s] active and purposeful conduct.'" Ibid.
(quoting Tarr v. Ciasulli, 181 N.J. 70, 83 (2004)). Therefore,
in order to hold an employee liable as an aider or
abettor, a plaintiff must show that "(1) the party whom
the defendant aids must perform a wrongful act that
causes an injury; (2) the defendant must be generally
aware of [their] role as part of an overall illegal or
tortious activity at the time that [they] provides the
assistance; [and] (3) the defendant must knowingly and
substantially assist the principal violation."
[Ibid. (quoting Tarr, 181 N.J. at 84) (third alteration in
original).]
As defendants did not undertake a wrongful act to begin with, Johnson
could not be liable for aiding and abetting. The racial composition of Johnson's
office had nothing to do with the fact neither he nor the other defendants engaged
in conduct that could constitute discrimination or creating a hostile work
environment.
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E.
Finally, as there was not a triable issue of fact regarding the LAD claims,
plaintiff could not pursue her punitive damages claim. The remaining claims
plaintiff raises on appeal, including her claim the motion judge weighed the
evidence, how he weighed the evidence, and that he was biased, lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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