explaining that "an unfavorable evaluation, unaccompanied by a demotion or similar action," is insufficient to rise to the level of an adverse employment action
How later courts described this case
- explaining that "an unfavorable evaluation, unaccompanied by a demotion or similar action," is insufficient to rise to the level of an adverse employment action
Written by the judges who cited it.
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NOT FOR PUBLICATION WITHOUT THE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-1241-23
MARYJANE PROCTOR,
Plaintiff-Appellant,
v.
HAYDON CORPORATION,
ADAM WOODS, and
NICOLE C. RUDEL,
Defendants-Respondents.
___________________________
Argued September 10, 2025 – Decided October 23, 2025
Before Judges Gooden Brown and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-0524-20.
R. Armen McOmber argued the cause for appellant
(McOmber McOmber & Luber, PC, attorneys; Austin
B. Tobin and Christian J. Fechter, of counsel and on the
briefs).
Lance N. Olitt argued the cause for respondents (Kluger
Healey, LLC, attorneys; Lance N. Olitt, on the brief).
PER CURIAM
Plaintiff, Maryjane Proctor, appeals from the November 27, 2023 Law
Division order granting summary judgment dismissal of her age discrimination
and unlawful retaliation complaint against her former employer, defendant
Haydon Corporation (Haydon), its President and CEO, defendant Adam Woods,
and its Vice President, defendant Nicole Rudel, collectively defendants. Based
on the record and applicable legal principles, we affirm.
I.
We glean these facts from the motion record, viewing them in the light
most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995). Haydon is a "corporation which
manufactures and supplies metal products," specifically for commercial and
residential building material. Until 2019, Haydon had manufacturing facilities
in New Jersey and Texas. In 2019, the company opened a new manufacturing
facility in California. Plaintiff was employed by Haydon from 2006 to July 11,
2019. She was almost sixty-four years old when her employment with Haydon
ended.
Initially, plaintiff was a "bookkeeper" and then eventually promoted to
"Human Resource Administrator." When plaintiff was promoted to Human
Resource Administrator in 2011, she retained her bookkeeping responsibilities
A-1241-23
2
while taking on human resources (HR) responsibilities handled by then-CEO
Doug Hillman who left Haydon in 2014. Plaintiff was also given a raise.
As the Human Resource Administrator, plaintiff reported to then-CFO,
Raj Kamdar, and Woods. Her "primary function" was to "[e]nsure[] the
consistent and effective implementation of policies, procedures, and practices
of the Payroll and [HR] functions and timely, effective completion of all tasks
related to payroll processing, salary, and benefit administration." Her essential
responsibilities included managing payroll; maintaining records of employees'
time off; providing "support in the completion of job application materials,
benefit enrollment forms, and regulatory employment forms"; advising and
assisting employees regarding benefit administration; maintaining company and
employee records, particularly regarding work-related accidents; providing
"support to management in hiring processes"; maintaining job descriptions and
"employee evaluation procedures"; assisting "in the development and
implementation of HR policies and procedures"; and receiving "complaints and
advis[ing] management of equal opportunity, sexual harassment, racism, or any
sort of discrimination."
After Woods became President, Kevin Johnson was hired to replace
Kamdar as the CFO. Plaintiff then began reporting to Johnson as her direct
A-1241-23
3
supervisor, as well as to Woods. The company grew over the next eight years,
doubling its revenue to about $96 million and increasing the number of
employees to about 230. Until January 2019, plaintiff was the only HR
employee at Haydon.
At her deposition, plaintiff testified that on October 16, 2018, she was
sitting in her office when Johnson "put his head in the door and asked [her] to
please meet with him in the conference room." When she arrived, Woods
immediately asked her whether she had "any thoughts on retiring." Before
plaintiff could reply, Johnson "said something to the effect of, not that we're
suggesting you're retiring. . . . We're getting together a succession list or some
such thing like that." Woods then asked plaintiff again "about [her] thoughts on
retiring," and Johnson again stated, "we're not saying that you should retire."
Woods then advised that "when [plaintiff was] ready to retire, six months lead
time would be adequate" to train a replacement. Plaintiff described feeling
"astounded" and responded that she "had no thoughts . . . [at that point] about
retiring." According to plaintiff, this was the sum and substance of their
conversation and the "subject of [her] thoughts on retiring [was] [n]ever brought
up with [her] again."
A-1241-23
4
At his deposition, Woods testified that "[he] had similar conversations
with a number of employees." Nevertheless, plaintiff testified that the question
posed to her in the October 16, 2018 meeting regarding her retirement plans
formed the basis for her "belie[f that] there was a plan to force [her] out of [her]
job at Haydon." She stated, "[t]hat was the plan. I don't need to know anything
else. They asked me about my retirement plans. I'm [sixty-three] years old.
That's all I need to know."
The following month, on November 12, 2018, Woods and Johnson met
with plaintiff again and discussed the need to hire "a seasoned HR professional."
Plaintiff testified that Woods referred to the planned new hire as an "HR
manager." However, Woods testified at his deposition that he and Patricia
Wagstaff, Chairperson of the Board of Directors, had determined that "the
company needed an HR [D]irector." As a result, the two had "developed a job
description and title" for the position.
At the November 12, 2018 meeting, Woods handed plaintiff a sheet of
paper that contained the job description for the new position. Plaintiff testified
that after reviewing the job listing, she asked Woods, "now that we are getting
A-1241-23
5
a new person in the department, am I going to be doing the step and fetch, 1 and
the new person doing the more interesting items?" Woods responded that the
hiring would not affect plaintiff's tasks.
Plaintiff acknowledged during her deposition that none of the tasks that
were listed for the new position were hers and "the scope of work was different
than what [she] handled." Plaintiff added that Woods explained "[t]he company
[wa]s growing . . . . and as a result of this [they] need[ed] professional people."
Nonetheless, because plaintiff believed the person they were hiring would be
taking her job, she asked, "[w]here does this leave me?" Since "Woods had just
asked [her] the month before about [her] retirement plans," plaintiff believed
"[they] were already on the path" to terminating her and was "skeptical" about
Woods's assurances in responding to her question. Plaintiff claimed she advised
defendants at the meeting that "she felt . . . marginalized by [d]efendants because
she was an older employee," but that her "complaints . . . fell on deaf ears."
The following day, Woods sent an email to plaintiff, with a copy to
Johnson, "following up on the discussion . . . [the prior] afternoon during which
[he] informed [plaintiff] of the [c]ompany's intention to create the new position
1
Plaintiff explained that "[s]tep and fetch, in [her] mind, would be lower level
tasks."
A-1241-23
6
of HR Manager." The email reiterated that the "decision was based on the
growing HR needs of the organization." The email also stated, "I have taken
note of your concerns about being relegated to less challenging tasks and I will
make certain to include and involve you in as many challenging tasks and
projects as possible. Should you have any questions or concerns, please ask
[Johnson] or myself."
Wagstaff eventually posted the HR Director position on an online
advertising platform. The job posting listed a bachelor's degree and master's
degree, with "[a]t least one in Human Resources," as preferred qualifications.
Woods testified that the intent was to hire an HR Director "[t]o have oversight
and ownership for hiring, promotions, performance evaluations, recruitment,
retention, compensation, all . . . dealings with . . . [the] union, . . . . [and m]aking
sure that [Haydon's] policies and procedures and manuals . . . meet[] the needs
of the company." The HR Director would also be involved with "employee
training," "compliance" with state laws, and "the insurance renewal process."
On December 3, 2018, plaintiff's formal job description changed from
"Human Resource Administrator" to "Human Resource Manager." There was
no change in pay or responsibilities associated with the title change. Woods
testified that he approved the change in plaintiff's title because she "was
A-1241-23
7
spending more of her time on matters of human resources and less[] time
involved with accounting payroll and finance." Woods explained that although
he "consider[ed]" plaintiff for the position of HR Director, he determined she
was not qualified for the position because of "[h]er lack of experience relative
to the qualities and experience that [they] were looking for" and "[h]er lack of a
secondary degree specific to human resources." He testified that plaintiff did
not ask to be considered for the role and plaintiff similarly testified that she
never expressed interest in or applied for the position.
Plaintiff was "invited to join in the interview process when they were
down to the final contestants" for the HR Director position. She attended
interviews and shared her experience at Haydon with the candidates. After the
interviews, she expressed her opinion about the candidates' qualifications if
asked. In January 2019, Haydon hired Sid Awad, then-forty-five years old, for
the position of HR Director. Plaintiff reported to Awad for HR functions and
continued to report to Johnson for accounting functions. Plaintiff confirmed that
after Awad was hired, her "job responsibilities did not diminish." She also
testified that she did not receive "added tasks as a result of age discrimination."
A-1241-23
8
The following month, on February 27, 2019, plaintiff received her 2018
annual review prepared by Johnson. The review was generally positive but
included some critiques, stating in pertinent part:
I acknowledge your work on the C[alifornia] setup
[and] ADP code restructuring. However, I would like
to see more initiative on utilizing ADP as a[n] HRIS
tool to streamline financial processes. Also the
beginning of utilization of Excel/spreadsheets . . . .
....
I agree that you are well organized but I would like to
see record retrieval more efficient going forward
utilizing electronic formatting where possible.
....
You possess the required job skills. I would like to see
more initiative in other areas such as utilization of
Synergy and prevention of duplicate[s] . . . .
....
I acknowledge your good attendance record. However,
as a manager you are expected to lead by example and
promptness is an essential behavior that a manager
needs to display.
....
I agree that you were helpful on the situation of the shop
steward . . . . More creativity in the development of
ideas that could help efficiency or reduce errors would
be helpful.
A-1241-23
9
....
I agree . . . [t]he employees feel comfortable with you.
Would like to see better communication between you
[and] T[exas and] C[alifornia] locations.
Plaintiff received an overall score of 90 out of 100.
About two months later, on April 17, 2019, plaintiff met with Woods,
Johnson, and Awad regarding "various mistakes" she had made on the job.
Plaintiff testified that at the start of the meeting, Woods, Johnson, and Awad
attempted to hand her a written "warning notice," documenting the mistakes, but
she refused to accept it. She explained she refused to accept the notice
"[b]ecause [she] wasn't going to be a party . . . . in [her] own execution." After
a brief discussion lasting approximately ten minutes regarding the mistakes
listed in the written notice, plaintiff concluded the meeting because she "had a
splitting headache and needed to go home."
Awad sent plaintiff the notice by email later that day, memorializing their
discussion as follows:
You were asked to meet with Adam Woods, Kevin
Johnson and myself in [Woods's] office to address your
work performance. Kevin Johnson started the meeting
by addressing seven . . . recent performance issues that
are subpar. After[, y]ou were given an opportunity to
respond to [Johnson's] concerns. You stated that the
concern[s] were "well thought out and researched" and
[that you] have a splitting headache and must go home.
A-1241-23
10
Attached is the official write-up which will be placed
in your employee record.
We sincerely hope that you understand that we are
concerned about your level of performance and the
number of critical errors that have recently taken place.
We look forward to working with you on resolving
these issues.
Attached to the email was the written notice documenting seven
"mistakes." Although some of the mistakes occurred in 2018, they were not
discovered until 2019, after plaintiff's 2018 annual review, and had elicited
concern from Haydon's Board of Directors. Specifically, the notice indicated
that: (1) plaintiff was tasked with "search[ing] out all levels of C[alifornia]
government to identify state, county and local registration requirements," and
although she advised Johnson that "all was in place and being worked on," the
company was "subject to penalties and state sales tax audit for non-compliance";
(2) plaintiff issued checks to the wrong payee; (3) plaintiff issued 1099 forms to
a Haydon owner and listed the incorrect social security number on an employee's
1099 form; (4) plaintiff issued a check to a vendor in the amount of $128,000
instead of $50,000; (5) plaintiff issued a check to a subcontractor in the amount
of $40,000 instead of $4,000; (6) plaintiff paid the same invoice three times; and
(7) plaintiff was late for work despite being warned about her tardiness in her
annual review.
A-1241-23
11
Plaintiff testified that after leaving work following the meeting, she spoke
with an attorney who assisted her in preparing an email addressed to Woods,
Johnson, and Awad, alleging "illegal treatment and discrimination [she was]
being subjected to at Haydon [Corporation] on the basis of [her] age." In the
email, which was sent the same evening, to support her discrimination claim,
plaintiff identified a series of incidents that had occurred after she was asked
about retiring in the meeting with Woods and Johnson. The incidents included
the hiring of Awad as the HR Director and the issuance of the written warning
notice. Plaintiff testified that after the meeting, she did not return to work until
the following week.
When plaintiff was questioned at her deposition about her role in each
mistake listed on the written warning notice, she reluctantly admitted she was
responsible, at least in part, for a few of the "mistakes" but blamed other
employees as well as Haydon's software for the bulk of the mistakes. She
explained:
There were many parties that had a hand in these
mistakes. However, I was the only one that was called
onto the carpet about these mistakes and I said as such.
I said this at this meeting.
Interestingly, I said . . . that I'm the only one
being blamed and there [are] other persons involved in
these mistakes. And interestingly, [S]yd Awad said to
A-1241-23
12
the group, to [Woods], to . . . Johnson and to me, he
said, well, she has a point there, meaning, that there's
others involved in these mistakes and I am the one
being singled out.
....
Mistakes happen. They happen all of the time.
Everyone makes mistakes. I make mistakes. They
make mistakes. Everyone makes mistakes, yes.
Later in April 2019, Awad was terminated due to inappropriate conduct
with a co-worker. Haydon hired Rudel, then-fifty-one years old, in June 2019
as his replacement. 2 Once again, during the hiring process, plaintiff did not
apply for the HR Director position and did not express an interest in the position.
Plaintiff also testified that Rudel's hiring did not "diminish [her]
responsibilities."
On July 11, 2019, Rudel asked plaintiff to join her in Woods's office for a
meeting. Woods and Johnson were present with Rudel and plaintiff. According
to plaintiff, at the meeting, Rudel discussed plaintiff's "performance issues[ and]
lack of improvement" and stated, "we need an improvement plan." Plaintiff
specifically recalled Rudel offering plaintiff assistance with "ad hoc requests ."
2
Rudel was elevated to Vice President in June 2021.
A-1241-23
13
Plaintiff responded "that the solution for addressing how busy [she had
been] . . . was to reassign some of the work from [her] desk to someone else."
Plaintiff testified that Rudel attempted to hand her another written
warning notice but she "wasn't going to accept their warning notice." Plaintiff
said she "didn't want to look at it," "sign it," or "touch it." She "wanted nothing
to do with it." Plaintiff testified that she
told them that [she] wanted the warning notice thrown
in the garbage, discarded, otherwise disposed of. And
[she] said if that wasn't done then today will be [her]
last day. And when the discussion continued . . . along
the same v[e]in, that's when [she] stood up,
and . . . said, "think about what you want to do and let
me know. I'm going to go back to my office.["]
[(Emphasis added).]
Plaintiff went back to her office and resumed working. About five to ten
minutes later, Rudel came to her office and asked her to return to the meeting.
When plaintiff returned, Woods asked her whether she was "going to quit or
resign" if they did not "tear up the warning notice today." Plaintiff responded
that she "did not say that." Instead, she "said that [she] wanted the warning
notice thrown away or today would be [her] last day." According to plaintiff,
Woods then instructed her to "collect [her] things and leave the building."
Plaintiff understood Woods's instruction to mean that she was "fired." She
A-1241-23
14
testified that before leaving, she shook hands with the three of them and wished
them all well.
Rudel testified at her deposition that plaintiff "didn't allow [them] to
complete [the] discussion with her," as she "was unwilling to engage in any
dialogue" about how they could "support her," or what they "could do to put into
place [things] that might mitigate or prevent these things from happening in the
future." The written warning notice, which was prepared by Rudel, stated that
plaintiff was counseled in April 2019 "on the importance of accuracy, ensuring
appropriate controls are in place[,] and attention to detail." It described two
additional "incidents that demonstrate[d] that [plaintiff was] not improving in
these areas." In the notice, Rudel stated, she believed plaintiff could "make the
required changes to improve [her] performance" and indicated that she was
"available to support [plaintiff] in any way" she could. The notice detailed a
"Plan for Improvement" and the section entitled "Consequences of Further
Infractions" was left blank.
July 11, 2019, was plaintiff's last day working at Haydon. In a July 23,
2019 letter to plaintiff, Rudel recounted the July 11, 2019 meeting, stating that
"[t]he objective of the meeting was to discuss the most recent issues, determine
the underlying cause[,] and agree on an action plan to correct these issues."
A-1241-23
15
However, after reviewing the errors, plaintiff stated that she "would resign
immediately if the written warning was not destroyed." The letter further stated
that after taking a break, plaintiff "confirmed [her] intent to resign immediately
if [they] proceeded with the written warning." As a result, they "accepted
[plaintiff's] verbal resignation." The letter also provided that plaintiff would be
"paid out for unused accrued vacation" consistent with the company's policies.
On February 13, 2020, plaintiff filed a complaint against Haydon, Woods,
and Rudel alleging: (1) age discrimination, in violation of the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 (count one); (2)
"retaliation/improper reprisal" in violation of the LAD, N.J.S.A. 10:5-12(d)
(count two); and (3) Wage Theft Act (WTA) violations, N.J.S.A. 34:11-4.10(c)
(count three). In the complaint, plaintiff alleged that defendants violated the
LAD by discriminating against her based on her age and retaliating against her
by "subject[ing her] to excessive discipline, workplace harassment, and adverse
employment actions" for "having asserted her rights under the LAD by
complaining to [d]efendants about age discrimination and retaliation she
experienced while employed by [d]efendants." Among other things, plaintiff
sought compensatory and punitive damages.
A-1241-23
16
Following the completion of discovery, defendants moved for summary
judgment. On November 27, 2023, after hearing argument, the motion judge
issued an order with accompanying statement of reasons granting defendants'
motion and dismissing plaintiff's complaint with prejudice. In the statement of
reasons, after reciting the facts and reviewing the applicable legal principles, the
judge determined that both of plaintiff's LAD claims "fail[ed] as a matter of law"
due to her failure "to establish a prima facie case."
The judge explained that both claims required a showing that plaintiff
"suffered an adverse employment action" but "[t]he record evidence, most
notably her own deposition testimony, confirm[ed] that [plaintiff could not]
make that showing." The judge also noted that although there was "no allegation
of constructive discharge, even if there was, such a claim could not survive
summary judgment" based on "the undisputed facts of th[e] case." In support,
the judge pointed out that "[p]laintiff resigned from her position and refused to
participate in . . . [d]efendants' corrective action plan." The judge found
plaintiff's unequivocal statement "that if the [n]otice was not torn up or
withdrawn, it would be her last day" could only be interpreted as "a resignation,
effective immediately."
A-1241-23
17
The judge continued that even assuming "there was an adverse
employment action," plaintiff failed to "establish that the reasons for . . .
[d]efendants['] actions were a pretext for discrimination." The judge
expounded:
There were valid reasons for the April Notice and July
Notice, and [p]laintiff's own deposition testimony
supports that. She acknowledged all of the deficiencies
as being factual. It appears that [p]laintiff's entire case
for age discrimination is based upon a single
conversation at an October 16, 2018 meeting that she
had with Woods and Johnson, when Woods asked
[p]laintiff, "do you have any thoughts on retiring?" It
was explained to her at that meeting that Haydon was
looking at succession planning, made clear that no one
was suggesting that she should retire, and explained
that the nature of her job and the critical functions she
served would require about six months lead time to
train a replacement if and when she chose to retire.
Lastly, the judge concluded there was "no legal basis for imposing
liquidated damages or any other damages award under [p]laintiff's WTA claim,"
as there was no evidence that "the pay shortfall [was] anything but an inadvertent
error." The judge explained that plaintiff never informed defendants of the error
prior to filing her complaint, and plaintiff had since "received payment of all
wages owed to [her]." Accordingly, the judge determined that the WTA claim
"should be dismissed." This appeal followed.
A-1241-23
18
On appeal, plaintiff argues summary judgment was inappropriate because
there existed "genuine issues of material facts" as to whether plaintiff
established the prima facie elements of her age discrimination and retaliation
claims. She contends the judge erred by making "several determinations of
credibility" that are reserved for a jury. As to her WTA claim, plaintiff asserts
that although defendants "ultimately" paid "the amount owed," she "is still
entitled to attorney's fees and costs related to her [WTA] cause of action as a
matter of law" because defendants "failed to pay [her] for forty-four . . . hours
of unused vacation time" within "the required time limit" under N.J.S.A. 34:11-
4.10(c).
II.
Our analysis begins with some established principles regarding our
standard of review. "[W]e review the trial court's grant of summary judgment
de novo under 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). That
standard is well-settled.
[I]f the evidence of record—the pleadings, depositions,
answers to interrogatories, and affidavits—"together
with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court must deny
the motion. R. 4:46-2(c); see Brill, 142 N.J. at 540. On
A-1241-23
19
the other hand, when no genuine issue of material fact
is at issue and the moving party is entitled to a judgment
as a matter of law, summary judgment must be granted.
R. 4:46-2(c); see Brill, 142 N.J. at 540.
[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,
366 (2016) (citations reformatted).]
"While 'genuine' issues of material fact preclude the granting of summary
judgment, R. 4:46-2, those that are 'of an insubstantial nature' do not." Brill,
142 N.J. at 530 (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75
(1954)). Where there is no genuine issue of material fact in dispute, "we must
then 'decide whether the trial court correctly interpreted the law.'" DepoLink
Ct. Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333
(App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486,
494 (App. Div. 2007), overruled on other grounds by, Wilson ex rel. Manzano
v. City of Jersey City, 209 N.J. 558 (2012)). "We review issues of law de novo
and accord no deference to the trial judge's [legal] conclusions . . . ." MTK Food
Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super. 307, 312 (App. Div. 2018).
"[T]he evaluation of every motion for summary judgment requires the
court, trial or appellate, to review the motion record against not only the
elements of the cause of action but also the evidential standard governing that
cause of action." Bhagat v. Bhagat, 217 N.J. 22, 40 (2014). Stated differently,
A-1241-23
20
"summary judgment should be granted . . . 'against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). We therefore turn to an examination of the
essential elements of plaintiff's LAD and WTA claims.
The LAD makes it "an unlawful employment practice" or "unlawful
discrimination" for
an employer, because of the . . . age . . . of any
individual . . . to discharge or require to retire, unless
justified by lawful considerations other than age, from
employment such individual or to discriminate against
such individual in compensation or in terms, conditions
or privileges of employment . . . .
[N.J.S.A. 10:5-12(a).]
It is equally unlawful
[f]or any person to take reprisals against any person
because that person has opposed any practices or acts
forbidden under this act or because that person has
sought legal advice regarding rights under this act,
shared relevant information with legal counsel, shared
information with a governmental entity, or filed a
complaint, testified or assisted in any proceeding under
this act . . . .
[N.J.S.A. 10:5-12(d).]
A-1241-23
21
It is also unlawful "[f]or 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).
Because "the overarching goal of [the] LAD [is] to eliminate the cancer
of discrimination," Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002), "the LAD
should be construed liberally to achieve its aims." Zive v. Stanley Roberts, Inc.,
182 N.J. 436, 446 (2005). See Richter v. Oakland Bd. of Educ., 246 N.J. 507,
537 (2021) ("[T]he LAD is given liberal construction, for the 'more broadly [the
LAD] is applied, the greater its antidiscriminatory impact.'" (second alteration
in original) (quoting Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98, 115
(2010))).
Our courts utilize the burden-shifting framework laid out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate LAD claims, requiring
plaintiffs to first establish a prima facie case of discrimination. Viscik, 173 N.J.
at 13-14. To establish a prima facie case of age discrimination, a plaintiff
asserting a claim of discriminatory discharge "must demonstrate that: (1) she
belongs to a protected class; (2) she performed her job at a level that satisfied
[the company's] legitimate expectations; (3) she was discharged; and (4) she was
replaced by 'a candidate sufficiently younger to permit an inference of age
A-1241-23
22
discrimination.'" Young v. Hobart W. Grp., 385 N.J. Super. 448, 458 (App. Div.
2005) (quoting Bergen Com. Bank v. Sisler, 157 N.J. 188, 210-13 (1999)).
On the other hand, the prima facie elements of a
retaliation claim under the LAD requires plaintiff to
demonstrate that: (1) plaintiff was in a protected class;
(2) plaintiff engaged in protected activity known to the
employer; (3) plaintiff was thereafter subjected to an
adverse employment consequence; and (4) that there is
a causal link between the protected activity and the
adverse employment consequence.
[Victor v. State, 203 N.J. 383, 409 (2010) (citing
Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252,
274 (App. Div. 1996)).]
"[A]s a prerequisite for proceeding on a retaliatory claim, a plaintiff must also
bear the burden of proving that he or she had a good faith, reasonable basis" for
engaging in the protected activity. Tartaglia v. UBS PaineWebber, Inc., 197
N.J. 81, 125 (2008) (citing Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354,
373 (2007)).
In articulating a standard for actionable adverse employment
consequences, in Roa v. Roa, 200 N.J. 555 (2010), our Supreme Court
adopted the Title VII standard established by the United
States Supreme Court in Burlington Northern & Santa
Fe Railway v. White, 548 U.S. 53, 61, 68 (2006). Roa,
200 N.J. at 575. The test is whether "'a reasonable
employee would have found the challenged action
materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making
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or supporting a charge of discrimination.'" Ibid.
(quoting Burlington N., 548 U.S. at 61, 68) (internal
quotations omitted).
In elaborating on the standard, the United States
Supreme Court explained "[t]he anti[-]retaliation
provision protects an individual not from all retaliation,
but from retaliation that produces an injury or harm."
Burlington N., 548 U.S. at 67. Further, the Court
explained the standard is couched "in general terms
because the significance of any given act of retaliation
will often depend upon the particular circumstances."
Id. at 69. The Court emphasized that "[c]ontext
matters," because "an act that would be immaterial in
some situations is material in others." Ibid. (quoting
Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 662
(7th Cir. 2005)).
[Prager v. Joyce Honda, Inc., 447 N.J. Super. 124, 139-
140 (App. Div. 2016) (citations reformatted).]
As such, "petty slights and lack of good manners on the part of co-workers
are insufficient to establish an adverse employment action under the LAD. " Id.
at 140 n.4. Similarly, an employer's filing of two written warnings in the
absence of "discernible injury or harm flowing from the[] two written warnings"
is insufficient to be considered adverse employment actions to form the basis
for a LAD retaliation claim. Id. at 141.
Still, "[t]he evidentiary burden at the prima facie stage is 'rather modest'"
and "is to be evaluated solely on the basis of the evidence presented by the
plaintiff, irrespective of defendants' efforts to dispute that evidence." Zive, 182
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N.J. at 447-48 (italicization omitted) (quoting Marzano v. Comput. Sci. Corp.,
91 F.3d 497, 508 (3d Cir. 1996)). Indeed, "[t]he establishment of a prima facie
case gives rise to a presumption of discrimination." Viscik, 173 N.J. at 14
(italicization omitted).
If a plaintiff demonstrates a prima facie claim, the burden of going
forward, but not the burden of persuasion, "shifts to the employer to articulate a
legitimate, non-discriminatory reason for the adverse employment action." Ibid.
If the employer articulates a legitimate reason for its action, "the burden shifts
back to the plaintiff to show that the employer's proffered reason was merely a
pretext for discrimination." Ibid. To prove pretext, a plaintiff must show the
proffered reason was false, and "the employer was motivated by discriminatory
intent." Ibid.
Indeed, overcoming the pretext burden
requires more of a plaintiff than simple identification
of an act or event that the plaintiff believes bespeaks
discrimination. As our Supreme Court has held, "[t]o
prove pretext, . . . a plaintiff must do more than simply
show that the employer's [proffered legitimate, non-
discriminatory] reason was false; he or she must also
demonstrate that the employer was motivated by
discriminatory intent."
[El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super.
145, 173 (App. Div. 2005) (alterations in original)
(quoting Viscik, 173 N.J. at 14).]
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"Plaintiff's burden on the pretext part of the analysis . . . is not insignificant."
Id. at 174.
"If the employer is unable to proffer a nondiscriminatory reason, plaintiff
is entitled to summary judgment . . . ." Marzano, 91 F.3d at 508. "[I]f the
employer proffers a reason and the plaintiff can produce enough evidence to
enable a reasonable factfinder to conclude that the proffered reason is false,
plaintiff has earned the right to present his or her case to the jury." Ibid.
However, a
plaintiff does not qualify for a jury trial unless he or she
can "point 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)).]
"Thus, under the McDonnell Douglas framework, a plaintiff retains the ultimate
burden of persuasion at all times; only the burden of production shifts." Viscik,
173 N.J. at 14.
"[A] constructive discharge claim under the LAD accrues when the
employee gives notice of . . . resignation or retirement." Shepherd v. Hunterdon
Dev. Ctr., 174 N.J. 1, 27 (2002). A constructive discharge claim bears "subtle
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26
but discernable differences" from a hostile work environment claim. Id. at 28.
"The hostile work environment claim requires 'severe or pervasive' conduct that
objectively 'alters the conditions of employment' and is 'hostile or abusive.'"
Ibid. By contrast, a constructive discharge claim has a higher standard and
requires "not merely 'severe or pervasive' conduct, but conduct that is so
intolerable that a reasonable person would be forced to resign rather than
continue to endure it." Ibid. (citing Jones v. Aluminum Shapes, Inc., 339 N.J.
Super. 412, 428 (App. Div. 2001)). "More precisely, the standard envisions a
'sense of outrageous, coercive and unconscionable requirements'" that are "more
egregious conduct than that sufficient for a hostile work environment claim."
Ibid. (quoting Jones, 339 N.J. Super. at 428).
In Shepherd, our Supreme Court observed:
Generally, a constructive discharge under the LAD
occurs when an "employer knowingly permit[s]
conditions of discrimination in employment so
intolerable that a reasonable person subject to them
would resign." Muench v. Twp. of Haddon, 255 N.J.
Super. 288, 302 (App. Div. 1992) (quoting Goss v.
Exxon Off. Sys. Co., 747 F.2d 885, 888 (3d Cir. 1984)).
In addition, specific considerations are relevant to a
constructive discharge analysis. In particular,
an employee has the obligation to do what
is necessary and reasonable in order to
remain employed rather than simply quit.
A trial court should consider the nature of
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the harassment, the closeness of the
working relationship between the harasser
and the victim, whether the employee
resorted to internal grievance procedures,
the responsiveness of the employer to the
employee's complaints, and all other
relevant circumstances.
[Shepherd, 174 N.J. at 27-28 (alteration in original)
(citation reformatted) (internal quotation marks
omitted) (quoting Shepherd v. Hunterdon Dev. Ctr.,
336 N.J. Super. 395, 420 (App. Div. 2001), rev'd in part
on other grounds, 174 N.J. 1 (2002)).]
Regarding the WTA cause of action, the New Jersey Wage Theft Act, L.
2019, c. 212, enacted in August 2019, "confers upon an aggrieved employee"
the right to
recover in a civil action the full amount of any wages
due, or any wages lost because of retaliatory action
taken in violation of [N.J.S.A. 34:11-4.10(a)], . . . plus
an amount of liquidated damages equal to not more than
200 percent of the wages lost or of the wages due,
together with costs and reasonable attorney's fees.
[Musker v. Suuchi, 479 N.J. Super. 38, 43-44 (App.
Div. 2024) (alteration in original) (quoting Maia v.
IEW Constr. Grp., 475 N.J. Super. 44, 50-51 (App. Div.
2023), rev'd on other grounds, 257 N.J. 330 (2024)).]
The WTA also provides that
[t]he payment of liquidated damages shall not be
required for a first violation by an employer if the
employer shows to the satisfaction of the court that the
act or omission constituting the violation was an
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inadvertent error made in good faith and that the
employer had reasonable grounds for believing that the
act or omission was not a violation, and that the
employer acknowledges that the employer violated the
law and pays the amount owed within [thirty] days of
notice of the violation.
[N.J.S.A. 34:11-4.10(c).]
Applying these principles, we agree with the judge that summary
judgment dismissal of plaintiff's complaint was warranted. Regarding the LAD
claims, plaintiff failed to demonstrate that she was discharged or suffered
adverse employment consequences to establish a prima facie case of
discriminatory discharge or retaliation based on her age. There is simply no
competent evidence in the record to support plaintiff's claim that she "suffered
multiple instances" of adverse employment actions, culminating in her
"constructive termination on July 11, 2019." Even if we consider plaintiff's
claim of constructive discharge which was never pled, we agree with the judge
that plaintiff failed to meet the requisite standard. Viewing the facts in the light
most favorable to plaintiff, plaintiff has not demonstrated "'conditions of
discrimination in employment so intolerable that a reasonable person subject to
them would resign.'" Shepherd, 174 N.J. at 27 (quoting Muench, 255 N.J. Super.
at 302).
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Plaintiff asserts the "disparate treatment," failure to "investigate" her age
discrimination complaints, "diminution of [her] job responsibilities" by
transferring the rewarding responsibilities to younger employees, "intentional
overburdening with excessive, time-sensitive" assignments after she indicated
she had no plans to retire, "bypassing [her] for promotions," and issuance of
"pretextual warning notices" with outdated performance issues "in retaliation
for her [discrimination] complaints" give rise to an inference of discrimination
and amount to "adverse employment actions" which culminated in her
constructive discharge on July 11, 2019. However, plaintiff's claims of adverse
employment actions are belied by her own deposition testimony.
Plaintiff conceded at her deposition that she did not apply for the
promotion when the HR Director role was first created, and she did not apply
for the position when Awad was terminated. Critically, she offered no evidence
that Woods, Johnson, or anyone at Haydon prevented her from applying for the
position. Further, plaintiff admitted that when she was asked about her
retirement plans, she was told it was for succession planning purposes and
assured that she was not being asked to retire. Plaintiff did not dispute that
others were similarly questioned about their retirement plans and admitted the
October 2018 meeting was the only time defendants asked her about potential
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retirement. Plaintiff also conceded at her deposition that when Awad and Rudel
were each hired, her tasks did not "diminish" but remained the same. She also
admitted she was not given added tasks due to age discrimination. Additionally,
when she complained that she felt marginalized because of her age, Woods
pledged to involve her in more challenging projects. Thereafter, Woods
authorized a change in plaintiff's job description from HR Administrator to HR
Manager.
Similarly, plaintiff's argument that the two written warning notices
constituted adverse employment actions is not supported by the undisputed facts
in the record. Plaintiff produced no competent evidence of tangible injury or
harm because defendants offered to support and work with plaintiff in resolving
the issues. The July warning expressed a belief in plaintiff's ability to make the
necessary corrective steps and neither warning constituted a final warning.
"Although plaintiff undoubtedly found the warnings highly distressing, her
subjective response to them is not legally significant in assessing whether they
were materially adverse." Prager, 447 N.J. Super. at 140.
Unlike the defendant's cancellation of [the] plaintiff's
health insurance in Roa, which caused [the] plaintiff
and his wife "'financial problems, damaged their credit
rating, subjected them to constant calls from debt
collectors, and caused them a tremendous amount of
stress and anxiety,'" 200 N.J. at 575, or Burlington
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Northern, where the plaintiff suffered a more arduous
job assignment and the financial effects of a thirty-
seven-day suspension without pay, even though the
suspension was eventually reversed and the plaintiff
awarded back pay, 548 U.S. at 71-72, [the] plaintiff can
show no discernible injury or harm flowing from these
two written warnings.
[Prager, 447 N.J. Super. at 141.]
Cf. El-Sioufi, 382 N.J. Super. at 169-170 (explaining that "an unfavorable
evaluation, unaccompanied by a demotion or similar action," is insufficient to
rise to the level of an adverse employment action).
Plaintiff's assertion that the two written warning notices were "pretextual"
is likewise unavailing. Although she asserts that her 2018 annual evaluation did
not discuss any issues later mentioned in the warning notices, the annual
evaluation commented on her tardiness at work and recommended that she
improve her communication and efficiency as well as limit errors in her work.
Critically, although plaintiff attempted to deflect responsibility for the errors
delineated in the notices, she acknowledged that mistakes were made and some
were made by her.
Regarding the WTA claim, as the judge explained, the pay shortfall was
clearly an inadvertent error. Plaintiff conceded at her deposition that she never
informed Haydon that she believed she was still owed any additional pay and
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32
never sought to correct the error prior to filing her complaint. Once aware,
Haydon promptly resolved the issue by paying plaintiff her unpaid vacation
time. Therefore, we agree with the judge that dismissal of the WTA claim was
warranted.
In summary, because plaintiff's claims failed, the judge correctly granted
summary judgment in favor of defendants and dismissed plaintiff's complaint
with prejudice.
Affirmed.
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