recounting and applying the severe and pervasive conduct prong
How later courts described this case
- recounting and applying the severe and pervasive conduct prong
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NOT FOR PUBLICATION WITHOUT THE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-3377-23
MARCIA HARRIS,
Plaintiff-Appellant,
v.
NEWARK BOARD OF EDUCATION
and DARLEEN GEARHART,
Defendants-Respondents,
and
CHRISTOPHER CONSTANTINO,
Defendant.
________________________________
Submitted March 25, 2026 – Decided May 18, 2026
Before Judges Paganelli, Vanek and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-8549-19.
Ionno & Higbee Attorneys at Law, LLC, attorneys for
appellant (Robert D. Novicke, Jr., Sebastian B. Ionno,
and D. Rebecca Higbee, on the briefs).
Lite DePalma Greenberg & Afanador LLC, attorneys
for respondents (Victor A. Afanador and Nicholas R.
McClelland, on the brief).
PER CURIAM
Plaintiff Marcia Harris appeals from a May 23, 2024 order granting
summary judgment in favor of defendants the Newark Board of Education (the
Board) and Darleen Gearhart, dismissing her second amended complaint
alleging harassment based on race, hostile work environment and retaliation in
violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5 -
1 to -50, and the Conscientious Employees Protection Act (CEPA), N.J.S.A.
34:19-1 to -14. We affirm, substantially for the reasons set forth in Judge L.
Grace Spencer's forty-three-page written decision.
I.
Because we write for the parties and Judge Spencer's comprehensive
written decision fully detailed the factual record viewed in the light most
favorable to plaintiff, we summarize only the most pertinent facts for context of
this opinion. See R. 4:46-2(c); Christakos v. Boyadjis, 262 N.J. 447, 462 (2026).
Plaintiff began her employment with the Board in September 2013 as a pre-
kindergarten (pre-K) teacher at Sussex Avenue Renew School (Sussex Avenue)
while Gearhart was the principal, Christopher Constantino was vice principal,
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2
Kathy Duke-Jackson was assistant superintendent of schools, and Roger León
was superintendent. Gearhart was Constantino's supervisor. Plaintiff stated
teachers at Sussex Avenue with expertise in art or drama are referred to as
"preps."
The Board had policies and procedures strictly prohibiting workplace
harassment, retaliation, and discrimination. Employees had bi-annual anti-
discrimination training.
In August 2017, plaintiff and Constantino exchanged emails regarding the
scheduling of preps in plaintiff's classroom when the pre-K students were
napping. Plaintiff believed it was not "best practice" for a prep to be the
classroom teacher while the students were sleeping and asserted the New Jersey
Department of Education, Division of Early Childhood Education (the DOE)
considered it developmentally inappropriate.
At the beginning of the 2017-2018 school year, plaintiff left an aide in
charge of her pre-K classroom during naptime in order to accompany an upset
parent to meet with Gearhart. When plaintiff returned to her classroom,
Constantino questioned her absence and allegedly screamed at her from five
inches away. Fearing Constantino, plaintiff left her classroom to talk to
Gearhart about what had happened.
A-3377-23
3
The same day, Constantino issued plaintiff a Letter of Warning/Neglect
of Duty because she left her classroom for almost thirty minutes and a Letter of
Warning/Insubordination, addressing plaintiff's refusal to comply with his
request for her to return to the classroom.
In January 2018, plaintiff discovered her daughter was being bullied at
school and requested approval to leave work early to address the issue.
Constantino refused to approve plaintiff's initial request because he would have
to assign another teacher to cover her classroom on short notice. Constantino
then advised plaintiff that if she left at 1:00 p.m. she had to take half of a
personal day. Because she was told she had to take half a day, plaintiff decided
to leave at 12:10 p.m.
Later that month, Constantino issued three additional warning letters to
plaintiff: (1) a Letter of Warning/Neglect of Duty; (2) a Letter of
Warning/Insubordination; and (3) a Letter of Warning/Conduct Unbecoming.
The letters were issued because plaintiff impermissibly left her classroom for a
total of twenty minutes in violation of Sussex Avenue's work schedule, refused
to return to her classroom for approximately ten minutes after Constantino
directed her to do so, and purportedly "attempted to manipulate the Chief
Innovation Office via untruthful messages in order to gain early dismissal fro m
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4
work." All three letters warned there was exposure for further disciplinary
action.
On January 24, 2018, plaintiff filed a complaint with the Newark Public
Schools Office of Affirmative Action (OAA) and an investigation proceeded.
Plaintiff received another Letter of Warning/Neglect of Duty from Constantino
for failing to supervise her pre-K students. The following day, Constantino
issued yet another warning letter to plaintiff, stating she failed to supervise her
pre-K students for "several minutes" for the third time during the 2017 -2018
school year. Plaintiff explained she took her students to the auditorium for
dismissal and left the aide with the children while she went to the office to make
a copy of a doctor's note for a parent. On February 15, 2018, plaintiff filed a
second OAA complaint and alleged Constantino "continue[d] to write up false
allegations" after she filed her first OAA complaint.
In May 2018, plaintiff verbally complained to Gearhart that kindergarten
teacher, Claudia Savan, said the word "n[*****]" during their conversation at
Sussex Avenue. Gearhart reported the incident to her supervisor and spoke with
Savan, who admitted to using the word during a private conversation with
plaintiff. Gearhart stated she did not discipline Savan because she made the
comment without a "negative" connotation to plaintiff during a private
A-3377-23
5
conversation. Gearhart found the verbal warning to Savan had been "effective"
because there was "no repeat instance" of the complained-of conduct.
During the same month, plaintiff sought to have her pre-K students sing
the "Black National Anthem, Lift Every Voice and Sing" during Sussex
Avenue's "Moving-Up Ceremony" (the Ceremony) as they had done in previous
years. Gearhart told plaintiff the Black National Anthem could be performed as
a "class presentation" but could not be sung during the Ceremony. Gearhart did
not approve performance of the Black National Anthem because "she did an
investigation and determined that the song had a high level of controversy."
Gearhart learned of the controversy from Board employees, Kimberly Fortune
and Savan.
On May 29, 2018, plaintiff complained to the OAA about Gearhart's
decision to not permit the singing of the Black National Anthem. During the
first week of June 2018, Gearhart and plaintiff exchanged emails discussing the
issue. Gearhart emailed plaintiff stating one class could perform the song as an
"artistic expression," but not at the Ceremony. Three days later, plaintiff met
with Gearhart to discuss the issue and left the meeting believing the dispute had
been resolved. Plaintiff understood that Gearhart had approved the song to be
performed as a class presentation at the Ceremony, with one class leading the
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6
performance and other classes invited to join in.
The pre-K students sang the Black National Anthem at the Ceremony.
When plaintiff returned to her classroom after the Ceremony, she received an
email from Gearhart "threatening insubordination." Gearhart expressed her
displeasure the anthem was performed when plaintiff went to Gerhart's office to
discuss the email. A few days later, Gearhart texted plaintiff and offered to
discuss the situation the following week because she felt the exchange between
them ended "on a bad note." Plaintiff declined to do so.
On June 28, 2018, the OAA concluded the letters Constantino issued to
plaintiff should "be expunged from plaintiff's file" because he did not employ
"progressive discipline."
During the beginning of the 2018-2019 school year, plaintiff emailed the
OAA informing them her students still received a scheduled prep during naptime
and asked for an update on her complaints.
On September 28, 2018, Constantino and plaintiff had a dispute regarding
the manner in which plaintiff's students were leaving the auditorium. Plaintiff
emailed the OAA, Gearhart and other officials about the dispute and again
sought an update of her January 24, 2018 and February 15, 2018 complaints.
Afterward, plaintiff alleged Constantino "aggressively charged into
A-3377-23
7
plaintiff's classroom and said, '[a]re you ready to rumble?'" Plaintiff also stated
that "Constantino did not say anything else except to tell plaintiff to leave her
attendance sheet outside the door as he was exiting the classroom." When
plaintiff sent an email complaining about this interaction, Gearhart responded it
was improper for plaintiff to be emailing while she was supposed to be working
and informed plaintiff that Constantino had entered her classroom to collect the
attendance sheet. Gearhart stated Constantino often used the phrase "are you
ready to rumble?" to mean "get started with something." Plaintiff believed there
was no policy prohibiting emailing during working hours.
Constantino took a four-month leave of absence after the September 28,
2018 exchange. On October 1, 2018, plaintiff filed a
"discrimination/harassment complaint" against Constantino regarding the
September 28, 2018 exchange. The Board hired outside counsel to assist the
OAA's investigation. Duke-Jackson emailed Gearhart and the OAA informing
them there was an outside investigation commenced and stating Constantino was
not to have any contact with plaintiff or supervise plaintiff while the
investigation was ongoing.
On October 2, 2018, Gearhart issued plaintiff another Letter of
Warning/Insubordination. The letter stated plaintiff had used her district email
A-3377-23
8
during instructional time when she was supposed to be teaching, and plaintiff
was insubordinate when she removed the pre-K students from her classroom on
two separate occasions to take them to Sussex Avenue's Music Lab and to the
playground outside of scheduled activity times. The next day, plaintiff emailed
Duke-Jackson, complaining about Gearhart. About a week later, plaintiff
complained to Duke-Jackson about Gearhart's denial of her request to take pre-
K students on a field trip to Terhune Orchards.
On November 8, 2018, the OAA sent letters to Constantino and plaintiff
advising plaintiff's January 24, 2018 complaint against Constantino for
retaliation was substantiated and closed with a "Finding." The investigation
concluded: plaintiff had been subject to retaliatory harassment and plaintiff's
one-half sick day for January 23, 2018, should be restored because plaintiff
worked at least half of the day; the January 25, 2018 write-ups were to be
removed from plaintiff's file; and Constantino should be trained on progressive
discipline and communication with staff. A few days later, the OAA sent letters
to Constantino and plaintiff advising them of its conclusion plaintiff had not
been discriminated against or harassed based on a protected class and the
investigation was being closed with a "No Finding" designation.
On January 18, 2019, Constantino returned from leave and plaintiff
A-3377-23
9
emailed the OAA to request guidelines to ensure her safety. At her deposition,
plaintiff testified her and Gearhart's relationship improved after they went over
safety measures, including limited contact between plaintiff and Constantino.
Constantino was directed not to enter a classroom where plaintiff was located.
During the beginning of February 2019, Constantino allegedly harassed
plaintiff when he came into her classroom and "shuffled around the papers on
her desk." Plaintiff did not formally report the incident.
In May 2019, plaintiff told Gearhart she submitted a complaint to Duke-
Jackson alleging the staff-to-child ratio for her students was unlawful because
she was not provided with a classroom aide. Gearhart acknowledged the
shortage in staff and sought to provide plaintiff with as much assistance as
possible, including speaking with her supervisors and the DOE "at least three
times that week" to obtain another classroom aide.
About one month later, plaintiff filed a "Discrimination/Harassment
Complaint" against Gearhart alleging she was retaliated against for filing an
affirmative action complaint. Plaintiff alleged Gearhart retaliated against her
by stating "untruths" in plaintiff's 2018-2019 Annual Evaluation form,
specifically the sections regarding "competency."
Gearhart assigned plaintiff to teach first grade at Sussex Avenue for the
A-3377-23
10
2019-2020 school year. Gearhart stated "that each year, it is the principal's
prerogative 'to assign teachers according to their subject [and], according to their
certification.'" Duke-Jackson supported the transfer. Gearhart explained she
had moved a first-grade teacher to teach pre-K students at the same time she
moved plaintiff to first grade, and believed the switch would be a better fit for
both plaintiff and the other teacher. Although plaintiff's grade-level transfer did
not impact her rank or compensation, she contended the transfer was retaliatory.
Duke-Jackson and León then sought to have either plaintiff or Constantino
voluntarily transfer to a new school, but both rejected the request. Nevertheless,
Constantino was transferred from Sussex Avenue to another school. León
believed plaintiff needed a "fresh start" and transferred her to a new school for
the 2020-2021 school year, over her objection. Gearhart no longer worked at
Sussex Avenue at the time plaintiff was transferred.
Plaintiff went to a psychiatrist and spoke with her family members about
the emotional distress she alleged defendants caused. Plaintiff asserted she also
visited the nurse at Sussex Avenue because of Constantino's January 23, 2018
actions.
Plaintiff filed a Law Division complaint on November 19, 2019, followed
by two amended complaints. The parties agreed to voluntarily dismiss their
A-3377-23
11
claims against Constantino. After discovery was concluded, the Board and
Gearhart moved for summary judgment. Judge Spencer granted defendants'
motion and entered an order accompanied by a forty-three-page written decision.
On appeal, plaintiff argues the judge misapplied the summary judgment
standard and erred in granting summary judgment to defendants based on
prevailing law. She contends the trial judge improperly concluded Savan's and
Gearhart's conduct was not severe and pervasive as required to sustain a hostile
work environment claim. Plaintiff also asserts the judge erred in dismissing her
retaliation claim and concluding she had waived her CEPA claim. We disagree.
II.
We review a trial court's grant of summary judgment de novo, applying
the same standard used by the trial court. Samolyk v. Berthe, 251 N.J. 73, 78
(2022). "We accord no special deference to the trial court's legal conclusions."
Birmingham v. Travelers N.J. Ins. Co., 475 N.J. Super. 246, 255 (App. Div.
2023).
A summary-judgment motion should be granted "if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
A-3377-23
12
matter of law." R. 4:46-2(c). A court should grant summary judgment when
"'the evidence "is so one-sided that [the moving] party must prevail as a matter
of law."'" Rios v. Media Pharm, Inc., 247 N.J. 1, 13 (2021) (quoting Petro-
Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 257 (2018)).
III.
Based on our de novo review of plaintiff's contentions in light of the
applicable law and the motion record, we affirm substantially for the reasons
expressed in Judge Spencer's well-reasoned written decision. We add only the
following remarks.
The Supreme Court's holding in Shepherd v. Hunterdon Developmental
Center, 174 N.J. 1, 24 (2002), provides the four-part test a plaintiff must meet
to establish a cause of action under the LAD. A plaintiff must show the alleged
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." Ibid. "Severe or pervasive" conduct is
determined by considering "whether a reasonable person would believe that the
conditions of employment have been altered and that the working environment
A-3377-23
13
is hostile." Therefore, the second through fourth prongs are somewhat
"interdependent." Ibid.
Although the parties did not contest that plaintiff satisfied the first
Shepherd prong, the judge found plaintiff failed to meet the second through
fourth factors by showing "severe or pervasive" conduct altered the terms of her
employment. The judge relied on well-settled case law, framing the relevant
inquiry here as "whether a reasonable African-American would believe the
alleged harassing conduct has created a hostile work environment."
We are satisfied the judge properly concluded the record did not
demonstrate severe and pervasive conduct sufficient to satisfy this second prong.
As the judge found, Gearhart's decision not to allow pre-K students to sing the
Black National Anthem is the only "racial remark" in the record, and the single
use of the word "n[*****]" by plaintiff's coworker during a private conversation
with her is neither attributable to Gearhart nor the Board. See Godfrey v.
Princeton Theological Seminary, 196 N.J. 178, 196-99 (2008) (recounting and
applying the severe and pervasive conduct prong). We discern no error in the
judge's finding that Gearhart's exchange with plaintiff about the singing of the
Black National Anthem did not amount to severe and pervasive harassment
based on race, especially because the students ultimately performed the song.
A-3377-23
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It is beyond doubt the racial epithet used by plaintiff's co-worker in a
private conversation was reprehensible. However, the utterance here is unlike
those instances in which a single use of a racial epithet has been found sufficient
to establish the second prong of the Shepherd test because plaintiff does not
allege the co-worker's statement was directed to her or was about her. In Taylor
v. Metzger, our Supreme Court acknowledged how "one incident of harassing
conduct can create a hostile work environment." 152 N.J. 490, 499 (1998). The
Court made clear, however, that although "a single incident, if severe enough,
can establish a prima facie case of a hostile work environment," such a case is
"rare and extreme." Id. at 500 (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J.
587, 603-04 (1993)). Indeed, "'epithets or comments which are "merely
offensive"' will not establish a hostile work environment claim." El-Sioufi v.
St. Peter's Univ. Hosp., 382 N.J. Super. 145, 176 (App. Div. 2005) (quoting
Heitzman v. Monmouth Cnty., 321 N.J. Super. 133, 147 (App. Div. 1999)), aff'd
in part, rev'd in part on other grounds, 174 N.J. 1 (2002).
We conclude that plaintiff has failed to make a prima facie showing of
"'severe or pervasive' conduct . . . that would 'make a reasonable [person] believe
that the conditions of employment are altered and [that the] working
environment is hostile.'" Cutler v. Dorn, 196 N.J. 419, 440 (2008) (alterations
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15
in original) (quoting Lehmann, 132 N.J. at 604). Viewing the totality of the
circumstances plaintiff avers and providing all favorable inferences, she has
failed to make a prima facie showing of a hostile work environment. Cf. Taylor,
152 N.J. at 502-06 (1998) (finding the single utterance of a racial epithet by the
plaintiff's supervisor was sufficient to be severe and pervasive when said to the
plaintiff and about her); Cutler, 196 N.J. at 440 (2008) (finding discriminatory
remarks directed to and about plaintiff satisfied the second prong of the
Shepherd test).
We are also unpersuaded the judge erred in finding plaintiff failed to
establish she was subject to any adverse employment action under the LAD,
reasoning plaintiff failed to demonstrate how Gearhart's evaluation reduced her
wages or status and how her transfer from pre-K to first grade or to another
school constituted a demotion. Employers cannot retaliate against employees
who seek to enforce the LAD. N.J.S.A. 10:5-12(d). To establish a prima facie
case of retaliation under the LAD, a plaintiff must show, among other
requirements, they were subjected to an adverse employment decision by the
defendant. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super.
543, 548-49 (App. Div. 1995). We have held a negative employment evaluation
or a job reassignment, unaccompanied by a tangible detriment, such as a salary
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reduction or job transfer, is insufficient to rise to the level of an adverse
employment action. El-Sioufi, 382 N.J. Super. at 176. Because plaintiff does
not allege adverse employment action, her retaliation claim fails.
Under N.J.S.A. 34:19-8, an action filed under CEPA is "deemed a waiver
of the rights and remedies available" pursuant to any state statute or decisional
law. See also Young v. Schering Corp., 141 N.J. 16, 29 (1995). Although
plaintiff agrees the CEPA waiver provision bars her retaliation claims from
proceeding simultaneously under both the LAD and CEPA, she argues it was
premature to force her to make an election between the two. Plaintiff argues our
decision in Maw v. Advanced Clinical Communications, Inc., 359 N.J. Super.
420, 440-41 (App. Div. 2003), rev'd on other grounds, 179 N.J. 439 (2004),
supports the argument she was permitted to wait until the end of discovery or
until a pretrial conference under Rule 4:25-1 to make this election. However,
we discern no error in the judge's question regarding whether plaintiff was
pursuing her claims under the LAD instead of under CEPA at the oral argument
of the summary judgment motion. Plaintiff had a meaningful opportunity to
gather facts and choose her remedy through information developed during
discovery—which concluded almost two years prior to the oral argument at
which she made the election.
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Because there was no material factual issue regarding liability under the
LAD, plaintiff's punitive damages claim was properly dismissed. Even
affording plaintiff all reasonable inferences, the record does not demonstrate a
basis for punitive damages predicated on willful indifference or egregious
conduct. See Rendine v. Pantzer, 141 N.J. 292, 314 (1995).
Based on our de novo review of the record, we are unconvinced the judge
improvidently granted summary judgment because plaintiff failed to satisfy the
well-established standards governing CEPA and LAD claims.
Any arguments we have not addressed, including plaintiff's allegations of
aiding and abetting liability, lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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