"[A] party may not advance a new argument in a reply brief."
How later courts described this case
- "[A] party may not advance a new argument in a reply brief."
- applying the actual malice standard to a police officer
- holding that by failing to raise their original jurisdiction argument in their initial brief, the plaintiffs waived the contention
- limiting review solely to the order designated in the notice of appeal
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NOT FOR PUBLICATION WITHOUT THE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-3263-23
CAROL JACKSON,
Plaintiff-Appellant,
v.
RUTGERS UNIVERSITY,
KENNETH COP,
MICHAEL REIN,
Defendants-Respondents.
___________________________
Submitted November 5, 2025 – Decided December 26, 2025
Before Judges Susswein and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-5012-20.
Eldridge Hawkins, LLC, and Cecile D. Portilla, LLC,
attorneys for appellant (Cecile D. Portilla, of counsel
and on the briefs).
Greenbaum, Rowe, Smith & Davis, LLP, attorneys for
respondents (Maja M. Obradovic, of counsel and on the
brief; Joel Clymer, on the brief).
PER CURIAM
This matter arises from plaintiff Carol Jackson's termination from her
position as a security guard at defendant Rutgers University. Plaintiff was
alleged to have struck a coworker and thereafter provided misleading
information in the course of the internal investigations of the incident. Plaintiff
brought suit against Rutgers and various university officials claiming
discrimination based on race, age, and gender under the New Jersey Law Against
Discrimination, N.J.S.A. 10:5–1 to –42 (LAD), hostile work environment,
procedural and substantive due process violations, defamation, malicious
prosecution, intentional infliction of emotional distress, and breach of the
implied covenant of good faith and fair dealing. At the completion of discovery,
the trial court granted summary judgment for defendants on all claims, finding
plaintiff had not presented sufficient evidence to support her allegations. She
appeals the May 10, 2024 order denying reconsideration of the March 11, 2024
Law Division order granting summary judgment dismissal and denying her
motion for partial summary judgment and declaratory relief. After reviewing
the record in light of the governing legal principles, we affirm.
I.
We discern the following pertinent facts and procedural history from the
record.
A-3263-23
2
A.
Rutgers University hired plaintiff as a security guard on September 12,
1995. Plaintiff is an African-American female. At the time of her termination,
she was sixty-five years old.
On September 27, 2019, fellow security officer Steven Rodriguez filed a
report with the Rutgers' Internal Affairs (IA) office alleging that plaintiff swung
her arm and slapped him in the chest earlier that morning. The report details
that prior to striking him, Rodriguez asked plaintiff "why [she] lie[d] and [told]
people that [he] sign[ed] up for overtime and [did] not work the hours."
Rodriguez told his superior about the slapping incident prior to filing the report.
He also filed a report alleging harassment. According to his certification,
plaintiff's demeanor toward him had become increasingly aggressive before the
physical incident. He submitted a September 7, 2019 voicemail plaintiff left
him stating, "I don't know why you [are] not answering your phone, you punk
ass, you scary, damn."
On September 27, Michael Rein, Deputy Chief of University Police,
emailed a copy of Rodriguez's complaint to Lisa Grosskruetz, Director of
Rutgers' Office of Employment Equity (OEE). Plaintiff was informed of
Rodriguez's complaint that same day. The record shows that OEE filed two
A-3263-23
3
formal complaints against plaintiff on behalf of Rodriguez detailing the
workplace violence that was alleged in the report. 1
Plaintiff was suspended with pay on October 1, 2019, pending the
outcome of the IA's investigation. On the same day, plaintiff filed a grievance
claiming that she was placed on suspension without just cause and without due
process in accordance with her collective bargaining agreement (CBA) and
requesting copies of the complaint and reports pertaining to the case.
On October 23, 2019, IA Lieutenant Duran completed his investigation,
finding that the workplace conduct allegations were "not sustained" because
there was not sufficient evidence to support or disprove Rodriguez's allegations
that plaintiff struck him in the chest. However, Duran also found that plaintiff's
denial was not credible. Duran found the allegation that plaintiff violated
Directive 1:6-5(m)2 was sustained. Duran explained in the confidential
investigation findings sent to Rein:
Before [plaintiff] was interviewed, she was given a
copy of the Administrative Advisement Form[,] which
she signed (as well as her union representative, Keith
Russell). Number 3 of the form states, "I may be
1
Neither complaint is dated; nor do they contain Rodriguez's signature.
2
That Rutgers policy provides in pertinent part that "[e]mployees shall not
knowingly lie, give misleading information, or falsify oral or written
communications."
A-3263-23
4
subject to departmental discipline for refusing to
answer a question directly related to the performance of
my duties, or for not answering truthfully." During the
interview of [plaintiff], she was not truthful when she
stated that she NEVER was within [fifteen] to [twenty]
feet of [Rodriguez] and that she walked down the
hallway by herself. She stated that she left [Rodriguez]
near the Security Supervisor[']s Office which was
contradicted in the video footage of that morning. It is
unclear if [plaintiff]'s intention was to mislead the
investigation by stating she was "NEVER" that close to
[Rodriguez] or if she was just being untruthful;
nonetheless [plaintiff's] testimony was not credible.
OEE conducted interviews and issued a memo on November 19, 2019,
detailing its findings. Based on the interviews conducted, OEE concluded that
plaintiff did in fact strike Rodriguez on his chest with her arm for the purpose
of causing physical harm in violation of the workplace violence policy. The
findings noted that section five of Rutgers' workplace violence policy provides:
[A]ny actual or threatening behavior of a violent nature,
as understood by a reasonable person, exhibited by
faculty, staff, student employees, or others within the
scope of this [p]olicy. Examples of workplace violence
include, but are not limited to:
1. Intentional physical contact for the purpose of
causing harm (such as slapping, punching, striking,
shoving, or otherwise physically attacking a person).
2. Menacing or threatening behavior (such as throwing
objects, waving fists, damaging property, stalking, or
otherwise acting in an aggressive manner; or, using oral
or written statements specifically intended to frighten,
A-3263-23
5
coerce, or cause distress) where such behavior would
be interpreted by a reasonable person as being evidence
of intent to cause physical harm to individuals or
property or coerce behavior from individuals.
OEE's memo found Rodriguez's version of events to be credible as it was
consistent with what he reported to his supervisors and to the police and was
corroborated by surveillance video. Although the surveillance video footage did
not capture the moment plaintiff allegedly hit Rodriquez, OEE found plaintiff
was not credible, explaining:
[Plaintiff] insists she was always at least twenty (20)
feet away from [Rodriguez]. This is contradicted by the
surveillance video, which clearly shows the [p]arties
walking side by side within mere feet of each other. . .
Further, if the parties were twenty (20) feet apart
[plaintiff] says, then it is likely at least one of them
would have been captured on camera.
....
I do not find [plaintiff]'s statement that she did not
know why [Rodriguez] called her a liar to be credible.
[Plaintiff] acknowledged that [Rodriguez] accused her
of telling people he signed up for overtime and then did
not want to work. Therefore, even if [plaintiff] did not
tell people this, she knew exactly why [Rodriguez] was
calling her a liar.
On January 29, 2020, Deputy Chief Rein recommended disciplinary
charges against plaintiff seeking her discharge from employment. Executive
Director Kenneth Cop, Chief of Rutgers University Police, who claims he was
A-3263-23
6
never aware of plaintiff's age or race, approved the charges against plaintiff and
determined that she should be terminated.
On February 4, 2020, plaintiff received a pre-disciplinary conference
notification letter from James Del Grosso, who supervises both plaintiff and
Rodriguez. In the letter, Del Grosso notified plaintiff that the department was
considering disciplinary action against her for the reasons set forth in an attached
preliminary notice of disciplinary action (PNDA). The letter provided a time
for a scheduled conference to give plaintiff "the opportunity to respond to these
reasons." The PNDA, which was marked as a "DRAFT," included details of the
complaint of workplace violence and the charges pertaining to misleading
information plaintiff provided during the investigation. The draft PNDA
concluded, "your employment with Rutgers University Police Department is
terminated effectively immediately," and provided a URL link where plaintiff
could check the status of her fringe and retirement benefits.
On February 12, plaintiff received a final notice of disciplinary action
from Deputy Chief Rein, mirroring the draft PNDA. The final notice stated that
the IA Bureau investigation sustained one violation of the written direction
system, citing "Directive 1:6 - Uniform Standards of Conduct - Section: 1:6-7(a)
- Employees shall not knowingly lie, give misleading information, or falsify oral
A-3263-23
7
or written communications in any official report." The final notice detailed
plaintiff's version of events regarding the distance between her and Rodriguez.
The final notice further informed plaintiff that the OEE conducted a
concurrent investigation, which found that her statements lacked credibility and
that a preponderance of the evidence supports the allegation that she struck
Rodriguez on his chest with her arm for the purpose of causing physical harm.
The notice explained, "On September 27, 2019[,] you engaged in an
unprofessional and inappropriate interaction with a co-worker which
deteriorated to a physical altercation. The investigations into this matter found
your statements lacked credibility and moreover were inconsistent with the
statements of witnesses, involved parties and forensic evidence."
On February 25, 2020, plaintiff's counsel sent a notice of appeal to
defendants. Plaintiff claims she was never given any disposition on OEE's
workplace violence charge.
B.
On July 27, 2020, plaintiff filed a civil complaint against defendants in
Superior Court, alleging: reckless and intentional infliction of severe emotional
distress (count I); race, age, and gender discrimination, hostile work
environment, retaliation, and aiding and abetting in violation of LAD, N.J.S.A.
A-3263-23
8
10:5-12 (a), (d), (e), and (f), N.J.S.A. 10:5-4; N.J.S.A. 10:1 to 2, and N.J.S.A.
34:15-1 to -39.1 (count II); breach of the implied covenant of good faith and fair
dealing/interference with plaintiff's beneficial economic position (count III);
violation of the New Jersey constitution, art. 1, ¶ 1, 5, 18, and casting in a false
light, defamation, and libel (count IV); and malicious prosecution, N.J.S.A.
2A:47A-1, 2 (count V).
On March 30, 2021, defendants filed a motion to dismiss plaintiff's
complaint. On October 15, 2021, the trial court dismissed count I, count II as it
relates to the retaliation LAD claim, and count III. Discovery ended on March
28, 2023. On July 28, 2023, defendants moved for summary judgment. On
September 12, plaintiff cross-moved for summary judgment.
C.
On March 11, 2024, after hearing oral argument, the trial court denied
plaintiff's cross-motion and granted defendants' motion in full. The court issued
a thirty-five-page written opinion announcing its findings of fact and
conclusions of law.
As to the LAD discrimination claims, the court found that plaintiff failed
to rebut defendants' proffered legitimate business reasons, which were the
alleged false statement plaintiff gave during their investigation. The court noted
A-3263-23
9
that "[t]he legal standard does not permit the substitution of evidence of a
purportedly flawed process, with nothing more, to substitute for evidence of
prohibited discrimination." The court compared this case to Meade v. Township
of Livingston, 249 N.J. 310 (2021), reasoning:
Unlike in Meade, where there was evidence belying the
proffered non-discriminatory motive such as one
defendant's "issue with reporting to a woman" and that
he "did not like reporting to a woman," id. at 331,
[plaintiff] here has not proffered any evidence wherein
a reasonable jury could find discriminatory intent
behind the actions of defendants. She has thus failed to
show by a preponderance of the evidence that either her
race or her gender made a difference, let alone were
motivating factors, in defendants' decisions.
The trial court further explained that:
Syllogistically, [plaintiff] focuses upon perceived
violations of defendant's policies and procedures and
the civil service law in response to defendants'
proffered non-discriminatory reasons for terminating
her employment. [Plaintiff] argues that, because of
perceived violations of these polices, she must have
been discriminated against. Yet, there is no support for
the argument to either deny defendant[s'] motion for
summary judgment or to grant plaintiff's motion for
summary judgment.
For similar reasons, the trial court found that plaintiff's hostile work
environment claim also failed. The court stated that while plaintiff showed that
she was part of a protected class, she "has failed to provide any evidence from
A-3263-23
10
which a reasonable factfinder could conclude that racial or gender bias was the
basis for defendants' conduct." Therefore, the court held, plaintiff did not meet
the second prima facie element for hostile work environment.
The trial court then addressed plaintiff's constitutional claims, specifically
that defendants violated Article I, Paragraphs 1, 5, and 18 of the New Jersey
Constitution. Addressing Paragraph 5, the court explained:
The court pauses here to summarily resolve this aspect
of the complaint. As was detailed supra, there is no
evidence in this record wherein [plaintiff] has offered
any evidence in support of either racial or gender
discrimination. As such, and incorporating all of the
prior findings, the court is forced to conclude that
summary judgment in favor of defendants is required as
to this discrete component of [c]ount IV.
The trial court also "paused" to address Paragraph 18, stating:
For the same reasons that the court has concluded that
the more formal retaliation claim is subject to summary
judgment in favor of defendants, the court is compelled
to make the same finding as to this claim under
Paragraph 18. There is simply no evidence in this
record of any retaliatory conduct by defendants in
response to any protected assembly, speech, or other
aspects protected by this paragraph. Resultantly, the
court is also constrained to grant summary judgment in
favor of defendants as to this portion of [c]ount IV.
The court then focused on plaintiff's claims under Paragraph 1 with
respect to the procedural protections granted to plaintiff by virtue of her
A-3263-23
11
employment as a security guard. The court found that "the evidence in this
record establishes that [plaintiff] was properly put on notice of the need to
defend against allegations of providing false statements." The court reasoned:
There is little question in this record that Rodriguez
went through the process of filing the relevant
complaint, despite plaintiff's complaints about his basis
for doing so. His complaint, and the ensuing
investigations by the various departments of
defendants, properly put her on notice of the charges of
alleged workplace violence. The same must be said for
the allegations of lying during an investigation.
....
[O]n February 4, 2020, [plaintiff] was served
with the PNDA notifying her of the charges of both
workplace violence and providing misleading
information.
The trial court also explained:
The court places little weight on [plaintiff's] allegations
about the undated PNDA as it was accompanied by a
dated letter. The February 4, 2020, letter from [Del
Grosso] to [plaintiff] commences by stating, "I write to
inform you that the department is considering
disciplinary action against you for the reasons set forth
in the attached Preliminary Notice of Disciplinary
Action (PNDA)" (emphasis added)[.] There is no other
PNDA in this record. [Plaintiff] herself fails to identify
any other PNDA that she received which omitted the
allegations of mendacious conduct. The court is
obligated to view the evidence in the light most
favorable to the non-moving party; however, the
summary judgment standard requires the giving of all
A-3263-23
12
reasonable inferences to the non-moving party. The
court cannot find it reasonable to infer that there is
some other PNDA that was provided to [plaintiff],
which she herself has neither produced nor even
testified as to the existence thereof. As such, the court
concludes that she was timely served with the PNDA
presented in this record.
With respect to plaintiff's defamation/libel claims, the trial court held that,
even assuming the statements made by Rutgers and its officials are false and
defamatory, plaintiff did not meet the publication requirement for a
defamation/libel cause of action. The court noted that "both facts remain: a
workplace violence complaint was made and that that same workplace violence
complaint was not the cause for her termination." The trial court also found in
favor of defendants on plaintiff's false light defamation claims, explaining that,
in addition to failing to provide proof of publication, plaintiff failed to satisfy
the actual malice standard, holding that a reasonable jury could not conclude by
clear and convincing evidence that defendants published statements about her
with actual malice. 3
3
The trial court also rejected plaintiff's aiding and abetting claims, reasoning
that because her other underlying claims have been dismissed, the allegations of
aiding and abetting must be dismissed as well. We note that plaintiff does not
address aiding and abetting in her appeal brief as a separate claim. "An issue
that is not briefed is deemed waived upon appeal." New Jersey Dep't of Env't
Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 (App. Div. 2015) (citing Fantis
A-3263-23
13
D.
On March 29, 2024, plaintiff filed a motion for reconsideration of the
summary judgment decision. The trial court found that plaintiff did not identify
any new evidence not considered by the court and had not met the standard for
reconsideration. The court reiterated that it considered plaintiff's arguments but
sees them "in a different light." The court then specifically addressed two of
plaintiff's points, explaining:
The fact that Rodriguez did not sign the initial
complaint for workplace violence, that the OEE
investigated, the record to me clearly indicates that
Rodriguez filed a workplace violence complaint against
[plaintiff] via multiple channels, including a Special
Officer Report, verbally to more than one person, and a
police report with the [RUPD].
There was a certification from Rodriguez in
support of the motion that stated he did indeed file a
workplace violence complaint against [p]laintiff. And
I noted in my opinion at page [seventeen] there was
little question in this record that Rodriguez went
through the process of filing the complaint, despite the
complaints about his basis for doing so. And once it's
filed the Rutgers' policy require the OEE to investigate
the workplace violence complaint, even though it was
Foods v. N. River Ins. Co., 332 N.J. Super. 250, 266–67 (App. Div. 2000);
Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6–2 (2015)).
A-3263-23
14
not a signed complaint. That's pursuant to the
regulations that would apply here.
I . . . didn't see any evidence that . . . workplace
violence complaints made against younger, Caucasian,
or male security officers that were not directly filed
with the OEE and that were not signed were not
investigated. That simply wasn't in the record.
The trial court next addressed plaintiff's arguments concerning the
surveillance video that was considered during the investigation of the workplace
violence complaint. The court stated:
Rutgers points out that regardless of the video
footage, [plaintiff] was required to be truthful in her
responses . . . of the fact that she didn't see it. The
argument is that during the interview [p]laintiff was not
forthright and chose to lie and embellish her physical
proximity to Rodriguez. She insisted she was never
within [fifty] feet of Rodriguez.
The authentication of the video, I understand
[plaintiff's] argument about it. However[,] I did review
closely the certifications that were submitted. I do
think that the videos were properly authenticated with
chain of custody accounted for. So I don't think it was
improper either to not show her before the questioning
or to raise a question of fact as to the authentication or
to the authenticity of those items. We have a very good
record I believe about the chain of custody and the
authentication from Armando Quinones, which the
[c]ourt considered and which I still feel is proper.
This appeal followed. Plaintiff raises the following contentions for our
consideration in her appeal brief:
A-3263-23
15
POINT I
THE TRIAL COURT ERRED IN NOT FINDING
THAT RUTGERS ENGAGED IN AN EGREGIOUS
VIOLATION OF [PLAINTIFF]'S SUBSTANTIVE
DUE PROCESS RIGHTS
A. THE TRIAL COURT ERRED IN FAILING TO
FIND THAT [PLAINTIFF] WAS DENIED OF
SUBSTANTIVE DUE PROCESS BY BEING
DENIED OF THE SUBSTANCE OF HER
ENTITLEMENT IN RUTGERS' SUSPENSION
POLICY
B. PLAINTIFF WAS DENIED OF HER
SUBSTANTIVE DUE PROCESS RIGHTS BY
BEING ARBITRARILY TERMINATED
AFTER THE INTERNAL AFFAIRS
INVESTIGATOR EXPRESSED THAT HE DID
NOT KNOW WHETHER PLAINTIFF
INTENDED TO MISLEAD THE
INVESTIGATION WHEN DIRECTIVE 1:6-
5(m) REQUIRES INTENT
POINT II
THE TRIAL COURT ERRED IN FAILING TO FIND
THAT RUTGERS ENGAGED IN AN EGREGIOUS
VIOLATION OF [PLAINTIFF]'S PROCEDURAL
DUE PROCESS RIGHTS AND OTHER RIGHTS SET
FORTH IN ARTICLE 1 PARA 1, 5, 18 OF THE NEW
JERSEY CONSTITUTION AND SHOULD HAVE
PREVAILED ON COUNT I, COUNT II AND COUNT
IV OF HER COMPLAINT
A. PLAINTIFF WAS DENIED OF HER DUE
PROCESS RIGHT TO NOTICE OF THE
CHARGES RELATED TO LIES AND
A-3263-23
16
MISREPRESENTATION BECAUSE SHE WAS
NOT PRESENTED WITH DIRECTIVE 1: 6-5
(m) RELATED TO THIS CHARGE
B. PLAINTIFF WAS DENIED OF HER DUE
PROCESS RIGHT TO DISCOVERY AND HER
RIGHT TO CROSS EXAMINE WITNESSES
C. PLAINTIFF WAS DENIED OF PROCEDURAL
DUE PROCESS BECAUSE THE DECISION TO
TERMINATE HER WAS MADE BEFORE SHE
WAS SERVED WITH A FINAL NOTICE OF
DISCIPLINARY ACTION THUS THE COURT
ERRED IN NOT AWARDING HER
JUDGMENT ON COUNTS I, IV AND V
POINT III
THE [TRIAL] COURT ERRED IN DISMISSING THE
PLAINTIFF'S COMPLAINT AND NOT FINDING
THAT PLAINTIFF ESTABLISED AGE/RACE
DISCRIMINATION UNDER THE []LAD
POINT IV
THE [TRIAL] COURT ERRED IN DISMISING
PLAINTIFF'S CASE ON SUMMARY JUDGMENT
BECAUSE THE DISMISSAL FAILED TO COMPLY
WITH THE SUMMARY JUDGMENT STANDARD
A. THERE WERE CREDIBILITY ISSUES THAT
PREVENTED RESOLUTION IN THE
DEFENDANTS' FAVOR
POINT V
THE [TRIAL] COURT ERRED IN AWARDING
SUMMARY JUDGMENT TO RUTGERS AND
A-3263-23
17
SHOULD HAVE FOUND THAT IT BREACHED THE
IMPLIED COVENENT OF GOOD FAITH AND FAIR
DEALING
POINT VI
THE [TRIAL] COURT ERRED IN NOT FINDING
THAT PLAINTIFF SATISFIED A CLAIM FOR
COMMON LAW MALICIOUS PROSECUTION AND
RECKLESS INFLICTI[O]N OF SEVERE
EMOTIONAL DISTRESS UPON [PLAINTIFF]
POINT VII
THE [TRIAL] COURT ERRED IN FAILING TO FIND
THAT DEFENDANTS CAST PLAINTIFF IN FALSE
LIGHT, DEFAMED AND LIBELED HER
POINT VIII
PLAINTIFF WAS DENIED OF EQUAL
PROTECTION BY BEING TERMINATED
WITHOUT NOTICE AND WITHOUT RUTGER'S
COMPLIANCE WITH ITS OWN POLICY
REGARDING EQUAL TREATMENT OF
EMPLOYEES
Plaintiff raises the following additional contentions in her reply brief:
POINT I
THE LAD CLAIMS SHOULD NOT HAVE BEEN
DISMISSED
A. DISCRIMINATION
B. HOSTILE WORK ENVIRONMENT
A-3263-23
18
POINT II
THE CONSTITUTIONAL COUNTS WERE
INCORRECTLY DISMISSED
POINT III
PLAINTIFF'S DEFAMATION AND FALSE LIGHT
CLAIMS ARE SUSTAINABLE
POINT IV
PLAINTIFF PROVED MALICIOUS PROSECUTION
POINT V
BREACH OF IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING WAS SHOWN
II.
We begin our analysis by acknowledging the foundational legal principles
governing this appeal. Our review of a trial court's summary judgment decision
is de novo. DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172, 180
(2024). "The 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.'"
Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995)). We "accord no 'special deference'
to the 'trial court's interpretation of the law and the legal consequences that flow
from established facts.'" Cherokee LCP Land, LLC v. City of Linden Plan. Bd.,
A-3263-23
19
234 N.J. 403, 414-15 (2018) (quoting Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995)).
We add that a non-moving party "cannot defeat a motion for summary
judgment merely by pointing to any fact in dispute." Brill, 142 N.J. at 529.
Rather, "once the moving party presents sufficient evidence in support of the
motion, the opposing party must 'demonstrate by competent evidential material
that a genuine issue of fact exists[.]'" Globe Motor Co. v. Igdalev, 225 N.J. 469,
479-80 (2016) (alteration in original) (quoting Robbins v. Jersey City, 23 N.J.
229, 241 (1957)). Further, "when the evidence 'is so one-sided that one party
must prevail as a matter of law' . . . the trial court should not hesitate to grant
summary judgment." Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)).
Plaintiff argues as a general matter that the trial court misapplied the
summary judgment standard. She contends that the court did not view the
evidence in the light most favorable to her. She also claims that there were
creditability issues that prevented summary judgment in defendants' favor.
We are unpersuaded. The trial court accurately articulated the legal
standard for summary judgment at the beginning of its factual findings, stating,
"[t]he court shall summarize the pertinent facts—viewing them 'in the light most
A-3263-23
20
favorable to [plaintiff,] the non-moving party.' Globe Motor Co., 225 N.J. [at]
479 [] (quoting R. 4:46-2(c))." Further, the court made no credibility findings.
We emphasize in this regard the issue before the trial court was not whether
plaintiff had misled Rutgers officials during the internal investigation process
or otherwise was not credible in responding to the allegations against her.
Rather, the issue in this lawsuit is whether Rutgers or its officials discriminated
against her or otherwise violated her rights. Based on our own review of the
record, we are satisfied that trial court properly articulated and applied the
summary judgment standard in making its factual and legal findings.
III.
We next address the disposition of the specific substantive counts raised
in plaintiff's complaint. We first address plaintiff's contention that the trial court
erred in finding that she had not established age and race discrimination. Under
the LAD, our Supreme Court has adopted the three-part McDonnell Douglas 4
analysis as the proper method for analyzing LAD claims. El-Sioufi v. St. Peter's
Univ. Hosp., 382 N.J. Super. 145, 166 (App. Div. 2005). That test provides that:
(1) the plaintiff must come forward with sufficient
evidence to constitute a prima facie case of
discrimination; (2) the defendant then must show a
legitimate non-discriminatory reason for its decision;
4
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
A-3263-23
21
and (3) the plaintiff must then be given the opportunity
to show that [the] defendant's stated reason was merely
a pretext or discriminatory in its application.
[Ibid. (citing Dixon v. Rutgers, the State Univ. of N.J.,
110 N.J. 432, 442 (1988)).]
To establish a prima facie case based on discriminatory discharge, the
plaintiff must demonstrate: "(1) that plaintiff is in a protected class; (2) that
plaintiff was otherwise qualified and performing the essential functions of the
job; (3) that plaintiff was terminated; and (4) that the employer thereafter sought
similarly qualified individuals for that job." Victor v. State, 203 N.J. 383, 409
(2010) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596-97 (1988)). See
also Meade, 249 N.J. at 328; Nini v. Mercer Cnty. Cmty. Coll., 406 N.J. Super.
547, 554 (App. Div. 2009). Further, to establish a prima facie case of age
discrimination, "an employee must 'show that the prohibited consideration
played a role in the decision-making process and that it had a determinative
influence on the outcome of that process.'" Bergen Com. Bank v. Sisler, 157
N.J. 188, 207 (1999) (citations omitted).
Plaintiff argues she established a prima facie case of discrimination
because she: (1) is a member of a protected group based on her African
American race and her age of sixty-five; (2) was qualified for the position and
performing the job at a level that met the employer's expectations prior to the
A-3263-23
22
alleged incident; and (3) suffered an adverse action by being terminated.
Moreover, plaintiff, relying on Victor, 203 N.J. at 383, claims she does not need
to show that she was replaced with another employee. Rather, she contends that
all she must show is a casual link between the protected activity and adverse
action.
Plaintiff also argues that defendants' reasons for termination were
pretextual and motivated by discriminatory intent. 5 She contends that
circumstantial evidence shows that defendants' reasons for termination were
"contradictory, weak, and filled with implausibility." Further, she notes that the
draft notice from February 4, 2020 contained "harsh" words, stating that the
department "cannot and will not tolerate your incidents of misconduct."
The trial court dismissed all of plaintiff's discrimination claims based in
part on the lack of evidence of discriminatory intent. The trial court also
reasoned that with respect to the gender/race discrimination counts, plaintiff
failed to show evidence of pretext. The trial court also found that although
plaintiff alleged numerous perceived deficiencies in the investigatory and
5
We note that in her reply brief, plaintiff states that a young Hispanic worker
"was treated differently." However, she does not provide specific information
concerning the identity of the Hispanic employee or the circumstances
pertaining to their treatment by the University.
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disciplinary action process, she failed to offer any evidence of discriminatory
intent undergirding those alleged failures, concluding that plaintiff "has not
proffered any evidence wherein a reasonable jury could find discriminatory
intent behind the actions of defendants." The court further explained that "[t]o
bridge this gap would require at least some evidence that the application of these
policies as against her was rooted in discriminatory intent. There is no such
evidence in this record."
Our own review of the evidence leads us to the same conclusion reached
by the trial court. See Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002) (citing
Erickson v. Marsh & McLennan Co., 117 N.J. 539, 561 (1990)) ("To prove
pretext . . . a plaintiff must do more than simply show that the employer's reason
was false; [they] must also demonstrate that the employer was motivated by
discriminatory intent.").
IV.
We likewise are unpersuaded by plaintiff's contentions regarding her
hostile work environment claim. We note at the outset that plaintiff's initial
appeal brief does not address the hostile work environment claim that was
dismissed on summary judgment. Plaintiff only raises this issue in her reply
brief, which is improper. See Alpert, Goldberg, Butler, Norton & Weiss, P.C.
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v. Quinn, 410 N.J. Super. 510, 527 n.5 (App. Div. 2009) (citing N.J. Citizens
Underwriting Reciprocal Exch. v. Kieran Collins, D.C., LLC, 399 N.J. Super.
40, 50 (App. Div. 2008), certif. denied, 196 N.J. 344 (2008)) ("Technically, a
new issue cannot be raised in a reply brief."); Bouie v. N.J. Dep't of Cmty. Affs.,
407 N.J. Super. 518, 525 n.1 (App. Div. 2009) ("[A] party may not advance a
new argument in a reply brief."); Bacon v. New Jersey State Dep't of Educ., 443
N.J. Super. 24, 38 (App. Div. 2015) (holding that by failing to raise their original
jurisdiction argument in their initial brief, the plaintiffs waived the contention).
We nonetheless choose to address her claim on the merits.
A hostile work environment claim requires consideration of "the totality
of the circumstances." El-Sioufi, 382 N.J. Super. at 178. To establish a hostile
work environment claim under the LAD, moreover, a plaintiff "must show that
'the complained-of conduct (1) would not have occurred but for the employee's
protected status, and was (2) severe or pervasive enough to make a (3)
reasonable person believe that (4) the conditions of employment have been
altered and that the working environment is hostile or abusive.'" Griffin v. City
of E. Orange, 225 N.J. 400, 413-14 (2016) (quoting Lehmann v. Toys ‘R’ Us,
Inc., 132 N.J. 587, 603-04 (1993)).
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For example, in Taylor v. Metzger, our Supreme Court found that a
rational factfinder may conclude that under the circumstances a reasonable
African-American could believe that, when the plaintiff's superior calls her a
"jungle bunny," he thinks she has less worth as a person and is inferior to other
employees because of her race. 152 N.J. 490, 506 (1998). The Court added that
"a jury could reasonably find that the reasonable African American would
believe that such a remark made in the presence of another supervising officer
portrays an attitude of prejudice that injects hostility and abuse into the working
environment and significantly alters the conditions of her employment." Ibid.
Similarly, in Shepherd v. Hunterdon Developmental Center, the Court
found on a "closer question" that the plaintiffs successfully alleged "facts
minimally necessary to form a hostile work environment claim sufficient to
withstand the defendants' motion for summary judgment." 174 N.J. 1, 26
(2002). In that case, the plaintiffs' supervisors engaged in a pattern of "ill
treatment and ultra-critical supervision," and in the case of one plaintiff, brought
disciplinary charges against him. Id. at 9. The Court noted "the most
troublesome aspect of the supervisors' conduct" is the alleged series of "what
goes around, comes around" remarks. Id. at 26. It explained that when "stated
and then repeated by a supervisor, those types of comments are susceptible to
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either a benign or nefarious interpretation," however, against the backdrop of
two co-employees' successful racial discrimination lawsuit against the
employer, "the conduct starts to look more nefarious than benign." Ibid.
Applying these precedents to the present record, we conclude that plaintiff
presented insufficient facts to establish a hostile work environment. We
reiterate that the trial court dismissed all discrimination-related claims based on
the lack of evidence of discriminatory intent. With respect to the hostile work
environment claim, the trial court stated that while plaintiff showed that she was
part of a protected class, she "failed to provide any evidence from which a
reasonable factfinder could conclude that racial or gender bias was the basis for
defendants' conduct."
Applying de novo review, we agree with the trial court's assessment and
conclude that plaintiff failed to establish a prima facie case. Considering the
record and providing all favorable inferences to her, plaintiff has not presented
severe or pervasive conduct that would make a reasonable African-American
woman in her sixties believe the conditions created a hostile work environment.
See Griffin, 225 N.J. at 413-14 (quoting Lehmann, 132 N.J. at 603-04).
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V.
We next address plaintiff's contention that defendants violated her rights
under the New Jersey Constitution, which guarantees that all persons "have
certain natural and unalienable rights" including the fundamental right of
"acquiring, possessing, and protecting property." N.J. Const. art. I, ¶ 1.
Substantive due process claims are recognized under the New Jersey
Constitution. State in the Interest of C.K., 233 N.J. 44, 73 (2018). Our courts
employ the same standard as applied under the federal constitution. Roman
Check Cashing, Inc. v. N.J. Dep't of Banking & Ins., 169 N.J. 105, 110 (2001).
In analyzing due process violations, New Jersey courts consider "the
nature of the affected right, the extent to which the governmental restriction
intrudes upon it, and the public need for the restriction." Greenberg v.
Kimmelman, 99 N.J. 552, 567 (1985) (citations omitted). "The minimum
requirements of due process . . . are notice and the opportunity to be heard."
N.J. Div. of Child Prot. & Permanency v. J.R.-R., 248 N.J. 353, 369 (2021)
(quoting Jamgochian v. State Parole Bd., 196 N.J. 222, 240 (2008)). State law
determines whether a public employee has a property interest in public
employment. Bishop v. Wood, 426 U.S. 341, 344 (1976).
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Paragraph 5 of Article I of the New Jersey Constitution proscribes
discrimination based on religion, ancestry, and national origin. Specifically, the
paragraph explicitly commands that "[n]o person shall be denied the enjoyment
of any civil or military right, nor be discriminated against in the exercise of any
civil or military right, nor be segregated in the militia or in the public schools,
because of religious principles, race, color, ancestry or national origin." N.J.
Const. art. I, ¶ 5.
Additionally, Article 1, Paragraph 18 of the New Jersey Constitution
provides: "The People have the right freely to assemble together, to consult for
the common good, to make known their opinions to their representatives, and to
petition for redress of grievances." N.J. Const. art. I, ¶ 18.
A.
Plaintiff argues she was denied her substantive due process rights because
Rutgers did not follow its own formal complaint and disciplinary procedures and
essentially fabricated a formal complaint. She also argues she was suspended
and ultimately terminated in violation of Rutgers' suspension policy that requires
changes or reinstatement within five days. She also contends that the IA
investigation sustained a charge of lying and misrepresentation without
necessary proof of intent or knowledge as required in Directive 1:7-5(m).
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Further, plaintiff contends Rutgers violated N.J.S.A. 11A:2-13, which
states:
Except as otherwise provided herein, before any
disciplinary action in subsection a. (1), (2) and (3) of
N.J.S.[A.] 11A:2-6 is taken against a permanent
employee in the career service or a person serving a
working test period, the employee shall be notified in
writing and shall have the opportunity for a hearing
before the appointing authority or its designated
representative. The hearing shall be held within [thirty]
days of the notice of disciplinary action unless waived
by the employee. Both parties may consent to an
adjournment to a later date.
As to the complaint and disciplinary violations, plaintiff specifically
contends that Rutgers and the OEE violated Directive 1.6-5(m) by "falsifying a
complaint form that falsely identified Rodriguez as the complainant when he
was not" and violated the complaint form that "expressly required a signature"
by writing the words "form prepared by OEE" and leaving it undated. This, she
argues, offends judicial notions of fairness.
Plaintiff also makes procedural due process arguments. She alleges that
she was deprived of property—her job and pension—without proper notice or
an opportunity to discover and cross-examine witnesses. She alleges the PNDA
never informed her of the misrepresentation and lies being investigated.
Plaintiff also states that defendants did not present any documents to her that
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mentioned Directive 1:6-5(m), rather they cited in the notice of disciplinary
action incorrectly mention Directive 1:6-7(a).
The trial court rejected plaintiff's due process arguments. With respect to
the Article 1, Paragraph 18 count, the trial court found "[t]here is simply no
evidence in this record of any retaliatory conduct by defendants in response to
any protected assembly, speech, or other aspects protected by this paragraph."
As to plaintiff's arguments relating to Paragraph 5, the trial court incorporated
its prior findings with respect to the dismissal of the LAD discrimination claims,
emphasizing that plaintiff has offered no evidence in support of either racial or
gender discrimination.
We agree with the trial court that plaintiff was afforded adequate notice
and opportunity to be heard. While Rodriguez did not sign the complaint, he
initiated the investigation and participated in the investigative process. Rutgers
continued its investigation pursuant to its policies requiring OEE to investigate
the allegations, even without a formal complaint. Further, plaintiff was given
notice on September 29, 2019, before her October 1, 2019 suspension, regarding
who made the allegations. In addition, on September 30, 2019, she was provided
notice of the OEE investigation advising her she may consult with union
representatives or legal counsel. On November 19, 2019, she received a letter
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from the OEE investigator concerning the workplace violence allegation.
Further, on February 4, 2020, plaintiff was served with the PNDA notifying her
of the charges of both workplace violence and providing misleading
information.
In sum, we are satisfied that plaintiff was given sufficient details about
the allegations in the preliminary disciplinary notices. Considering the totality
of the circumstances, we conclude that any deficiencies in the process were
minor and do not constitute due process violations.
B.
We need only briefly address plaintiff's claim that defendants violated
Paragraph 18 of Article I of the New Jersey Constitution. We are satisfied that
plaintiff has not presented any evidence of retaliatory conduct in response to
protected assembly, speech, or similar rights protected by Paragraph 18.
As to plaintiff's Paragraph 5 of Article I claim, we affirm the trial court's
decision based on the same reasons that led us to affirm the summary judgment
dismissal of plaintiff's LAD claims. Specifically, plaintiff presents only
conclusory allegations, not evidence, to support a claim of racial or gender
discrimination.
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VI.
We turn next to plaintiff's claim that defendants "maliciously initiated
false charges against plaintiff when the alleged victim did not want any charges
brought." Plaintiff speculates that the decision to bring formal charges against
her was not based on probable cause but rather motivated by malice.
The relevant statute, N.J.S.A. 2A:47A-1, provides:
Any person who falsely and maliciously and without
probable cause makes a complaint, orally or in writing,
of unprofessional conduct against a member of any
profession requiring a license or other authority to
practice such profession, to any court or to any ethics
and grievance committee, or to any board or other
public body authorized to and having the right to hear
such complaint and to act thereon or to recommend
action thereon and to take or recommend the taking of
disciplinary action against the person complained
of . . . shall be liable for any and all damages suffered
and sustained by the member of a profession so
complained of, to be recovered in a civil action in the
nature of an action at law for malicious prosecution.
The caselaw confirms that to succeed in an action for malicious
prosecution, "the plaintiff must establish that the original suit (1) was instituted
without reasonable or probable cause; (2) was motivated by malice; (3)
terminated favorably to the plaintiff in the malicious prosecution action; and (4)
resulted in a 'special grievance' to the plaintiff." Giri v. Rutgers Cas. Ins. Co.,
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273 N.J. Super. 340, 347 (App. Div. 1994) (citing Mayflower Industries v. Thor
Corp., 15 N.J. Super. 139, 151-52 (Ch. Div. 1951)).
Here, as the trial court correctly found, plaintiff presents no evidence of
malice. We stress that the absence of a formal complaint filed by Rodriguez
does not establish that Rutgers' decision to bring charges was motivated by
discriminatory intent or malice. Defendants found plaintiff to be untruthful
during an internal investigation. We see no malice whatsoever in the decision
to formally condemn such employee misconduct.
VII.
Nor are we persuaded by plaintiff's contentions relating to the dismissal
of her counts alleging that defendants cast plaintiff in a false light, defamed her,
and libeled her. Plaintiff contends that defendants made accusations with a
complete disregard for the truth and the harm to her.
The common law right to privacy recognizes the tort of false light. Leang
v. Jersey City Bd. of Educ., 198 N.J. 557, 589 (2009). The tort of false light has
two elements: "(1) 'the false light in which the other was placed would be highly
offensive to a reasonable person'; and (2) 'the actor had knowledge of or acted
in reckless disregard as to the falsity of the publicized matter and the false light
in which the other would be placed.'" Ibid. (quoting Romaine v. Kallinger, 109
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N.J. 282, 294 (1988)). "[A] false-light claim requires that the offending party
make 'a major misrepresentation of [the] plaintiff's character, history, activities,
or beliefs.'" G.D. v. Kenny, 205 N.J. 275, 308 (2011) (quoting Romaine, 109
N.J. at 295). "'[A] fundamental requirement of the false light tort is that the
disputed publicity be in fact false, or else at least have the capacity to give rise
to a false public impression as to the plaintiff.'" Ibid. (quoting Romaine, 109
N.J. at 294). "Simply put, false light invasion of privacy is 'essentially [a claim]
of defamation.'" Herman v. Muhammad, 480 N.J. Super. 480, 494 (App. Div.
2024) (alteration in original) (quoting Swan v. Boardwalk Regency Corp., 407
N.J. Super. 108, 121 (App. Div. 2009)).
To establish a prima facie case of defamation, there must be: "(1) the
assertion of a false and defamatory statement concerning another; (2) the
unprivileged publication of that statement to a third party; and (3) fault
amounting at least to negligence by the publisher." DeAngelis v. Hill, 180 N.J.
1, 12-13 (2004) (citing Restatement (Second) of Torts § 558 (1977)). "A
defamatory statement, generally, is one that subjects an individual to contempt
or ridicule, one that harms a person's reputation by lowering the community's
estimation of [them] or by deterring others from wanting to associate or deal
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with [them]." Durando v. Nutley Sun, 209 N.J. 235, 248-49 (2012) (quoting
Kenny, 205 N.J. at 293).
"There must be a showing of actual malice by a defendant where the
statement is about a plaintiff who is a public figure or relates to an issue of
public concern." Muhammad, 480 N.J. Super. at 492 (citations omitted)
(holding that the actual malice standard applies when the conduct arose in the
context of the plaintiff teaching in a public school); see also Hornberger v. Am.
Broad. Companies, Inc., 351 N.J. Super. 577, 597 (App. Div. 2002) (applying
the actual malice standard to a police officer). "To satisfy the actual-malice
standard, a plaintiff must show by clear and convincing evidence that the
publisher either knew that the statement was false or published with reckless
disregard for the truth." Neuwirth v. State, 476 N.J. Super. 377, 391 (App. Div.
2023) (quoting Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 165 (1999)). "That is
a high standard." Ibid.
Further, "[t]he [actual malice] test is subjective, not objective, and
involves analyzing the thought processes of the particular defendant." Durando,
209 N.J. at 251 (citing Costello v. Ocean Cnty. Observer, 136 N.J. 594, 617
(1994)). A "[m]ere failure to investigate all sources" does not demonstrate
actual malice. Lynch, 161 N.J. at 172 (citing Costello, 136 N.J. at 615).
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Furthermore, "[t]he allegedly defamatory statements must be viewed in
the context of the whole publication." Petro-Lubricant Testing Labs., Inc. v.
Adelman, 233 N.J. 236, 254 (2018) (citing Herrmann v. Newark Morning
Ledger Co., 48 N.J. Super. 420, 431 (App. Div. 1958)). "A defamatory
statement is published when it is communicated, either intentionally or
negligently, to one other than the person defamed." Abella v. Barringer Res.,
Inc., 260 N.J. Super. 92, 99 (Ch. Div. 1992) (citing Restatement (Second) of
Torts § 577(1)).
Plaintiff claims support for these theories of liability from the fact that the
November 19, 2019 OEE letter of determination stated,
Your failure to act in accordance with the above-
described sections of the written directive system
reflects poorly on you as an employee of the department
and further challenged its efficient operation. The
department cannot and will not tolerate your incidents
of misconduct and violations of the Department's
Written Directive System, including those committed
in this instance.
The trial court found that plaintiff failed to show that defendants
maliciously published untruthful statements about her. We agree.
We add that even assuming for the sake of argument that the conclusions
defendants reached in the internal investigations were false, plaintiff does not
identify who the findings were published to beyond plaintiff and defendants.
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That circumstance alone supports the trial court's decision to dismiss the false
light and related libel counts.
VIII.
Plaintiff argues in her appeal brief that her intentional infliction of
emotional distress (IIED) and implied covenant of good faith and fair dealing
claims should not have been dismissed. The trial court's written decision does
not address the merits of plaintiff's IIED count or implied covenant of good faith
and fair dealing count because those counts were dismissed in an earlier order
than the one being challenged in this appeal. Rule 2:5-1(f)(2)(ii) requires
appellants in civil actions to designate the judgment, decision, action, or rule, or
part thereof, appealed from in the notice of appeal. Because plaintiff does not
include the October order in her notice of appeal, we chose not to address the
merits of these issues. See Fusco v. Bd. of Educ. of City of Newark, 349 N.J.
Super. 455, 462 (App. Div. 2002) (limiting review solely to the order designated
in the notice of appeal).
Finally, we note that in her appeal brief, plaintiff does not address either
the standard for reconsideration or why the trial court's denial of the motion is
allegedly erroneous. Because we conclude the trial court properly granted
summary judgment in defendants' favor and properly denied plaintiff's motion
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for partial summary judgment, we also affirm the denial of plaintiff's' motion
for reconsideration. To the extent we have not specifically addressed them, any
remaining arguments made by plaintiff lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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