DORIS GONZALEZ VS. CITY OF NEWARK (L-2777-17, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4524-17T3

DORIS GONZALEZ,

Plaintiff-Appellant,

v.

CITY OF NEWARK and

MATTHEW SPENCER,

Defendants-Respondents.

__________________________

Argued September 18, 2019 – Decided August 19, 2020

Before Judges Whipple, Gooden Brown and Mawla.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-2777-17.

Patrick P. Toscano, Jr. argued the cause for appellant

(The Toscano Law Firm, LLC attorneys; Patrick P.

Toscano, Jr., on the briefs).

Cheyne R. Scott argued the cause for respondents

(Chasan Lamparello Mallon & Cappuzzo, PC,

attorneys; Cheyne R. Scott, of counsel and on the brief;

Cindy Nan Vogelman, on the brief).

PER CURIAM

Plaintiff Doris Gonzalez appeals from the May 18, 2018 Law Division

order granting summary judgment to defendants City of Newark (the City) and

Lieutenant Matthew Spencer, and dismissing her employment related complaint

with prejudice. The allegations in the complaint are based upon interactions

between plaintiff—a veteran female Newark police officer of Puerto Rican

descent and a cancer survivor—and Spencer, her supervisor, and arose after

plaintiff refused Spencer's request for a hug. Plaintiff alleged that after rejecting

Spencer's hug request as well as other unwelcome sexual suggestions and

advances, she was subjected to harassment, discrimination, retaliation and a

hostile work environment wherein Spencer harassed, verbally abused, and

demeaned her, causing her to negatively react and incur several disciplinary

charges.

In her multi-count complaint, plaintiff alleged violations of the New

Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, based on her

"handicap/sickness (cancer) and her gender"; violations of the New Jersey

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, based

on her objections to defendants' "fraudulent and/or illegal and/or unethical"

activities; violations of the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-

1 to -2, based on the LAD and CEPA violations; and violations of plaintiff's

A-4524-17T3

2

"substantive due process or equal protection rights" under the New Jersey

Constitution, Articles I and II (1947). Plaintiff also alleged civil conspiracy as

well as various common law tort and breach of contract claims, including

intentional infliction of emotional distress, intentional interference with

contractual relations, intentional interference with prospective economic

advantage, breach of the covenant of good faith and fair dealing, and negligent

training, supervision and retention.

In granting summary judgment, the motion judge determined that plaintiff

failed to demonstrate a prima facie case on any of her claims as a matter of law.

On appeal, plaintiff argues there were disputes of material facts for each of her

claims that should have been submitted to a jury. Based on our review of the

record and the applicable legal principles, we disagree and affirm.

Initially, we note that although plaintiff alleged a plethora of counts in her

complaint, in her merits brief, she presents no legal argument or citation of law

as to why the judge erred in dismissing some causes of action. On some claims,

plaintiff simply makes cursory statements regarding the judge's decision. As a

consequence, plaintiff has effectively abandoned these claims on appeal, and we

will address only the dismissed causes of action squarely advanced in her brief.

See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.

A-4524-17T3

3

2 (App. Div. 2015) ("An issue that is not briefed is deemed waived upon

appeal."); Telebright Corp., Inc. v. Dir., N.J. Div. of Taxation, 424 N.J. Super.

384, 393 (App. Div. 2012) (finding that a party waived its challenge on appeal

based on the fact that "[a]part from one sentence in the conclusion section, . . .

it present[ed] no arguments in support of its contention"); Mid-Atlantic Solar

Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011)

(declining to address issue on appeal where the party's "cursory discussion did

not properly present the issue for our consideration or afford an adequate

opportunity for the [agency] to respond").

I.

We derive the following facts from evidence submitted by the parties in

support of, and in opposition to, the summary judgment motion, viewed in the

light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213

N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523

(1995)).

Plaintiff has served as a police officer in the Newark Police Department

since 1998. During the course of her employment, plaintiff was diagnosed with

thyroid cancer and received treatment in 2002 and 2009, a fact that was well

known to other members of the Department. According to plaintiff, despite

A-4524-17T3

4

having had prior interactions with Spencer during which he made unwelcome

sexual advances to her, including an interaction at a 2009 Christmas party in

which he asked her for a hug while in a "drunk[en]" state, in March 2013,

"Spencer was transferred to the midnight tour," and plaintiff was "forced to work

directly for him." Plaintiff stated that once Spencer became her direct

supervisor, his "sexually explicit and unwelcome behavior . . . intensified

greatly."

In particular, according to plaintiff, "if [Spencer] stay[ed] at [his] desk[,]"

she could "easily" maneuver around him, but "if he [stood] there, it [was] hard"

for her to "squeeze through," inferring that he "[i]ntentionally" positioned

himself in that way to sexually harass her. Plaintiff also described incidents

where attractive female inmates were brought before Spencer to sign release

paperwork, providing him with an opportunity to gaze at their bodies.

Additionally, sometime in March 2013, upon learning he was on "the

promotional list" for the position of captain, after plaintiff congratulated him,

Spencer stated to plaintiff, "don't I get a hug"? Plaintiff firmly denied the

request, which she interpreted as sexual rather than friendly in nature "[b]ecause

he [was] not normally friendly."

A-4524-17T3

5

Plaintiff believed that her rebuff of Spencer's March 2013 hug request led

him to "purposely single her out." Plaintiff identified several instances of

alleged harassment and retaliation stemming from the hug request, including one

that occurred the following month, in April 2013, when plaintiff was assigned

to desk duty with Spencer serving as her supervising "desk lieutenant." On that

occasion, Spencer ordered plaintiff to simultaneously conduct record checks and

prepare front desk reports because the unit was understaffed. While "go[ing]

back and forth" between both duties, plaintiff entered an incorrect password

twice in a row. As a result, the record-checking computer system "locked [her]

out."

According to plaintiff, Spencer "believed" she locked herself out on

purpose and a verbal altercation ensued. During the altercation, in response to

Spencer "talking down" to her and "raising his voice" at her, plaintiff stated,

"you think I'm your wife. You are treating me as if I'm your wife. I'm not your

wife. I'm an officer." 1 Spencer replied that plaintiff would "be so lucky to be

his wife," which plaintiff interpreted as "an advance."

1

Plaintiff clarified that when she made this statement, she meant that Spencer

was treating her "[i]n a demeaning way," and not the way a superior officer

should address a subordinate. Plaintiff also acknowledged that the wife remark

was preceded by her accusing Spencer of being "bipolar" based on changes in

his demeanor towards her.

A-4524-17T3

6

Plaintiff advised three superior officers of the incident shortly after its

occurrence, Lieutenant Anthony Costa, Lieutenant Gerardo Nieves, and Captain

Eugene Venable, all of whom recommended she submit a written statement.

Fearing retaliation if she "put it on paper," plaintiff declined to do so. However,

on Venable's order, Spencer submitted a written statement to him about the

"wife" comment. Spencer stated that plaintiff "was insolent and insubordinate "

when he assigned her to two duties. He reported that he told plaintiff "as long

as she[ was] a Newark police officer and [he] need[ed] her to do more than one

job," she must follow his orders "or be charged." Spencer acknowledged that

during the argument, when plaintiff told him "[they] argued like she was [his]

wife," he "[off]handedly and sarcastically [stated] that [plaintiff] didn't want to

marry [him,]" but explained that "[t]here was no intention to . . . make [plaintiff]

feel uncomfortable."

On April 10, 2013, after receiving Spencer's statement, to remedy the

situation, Venable assigned plaintiff to "work the street [two] days and desk

[two] days." To further avoid any interaction between the two, plaintiff was

only assigned to desk duty when Nieves served as desk lieutenant. However,

according to plaintiff, the respite only lasted until Nieves was promoted.

Thereafter, once her interactions with Spencer resumed, Spencer further

A-4524-17T3

7

retaliated against her by ordering her on numerous "occasions to perform

multiple tasks on the job at the same time."

In one instance in particular, when plaintiff confronted Spencer about her

assignments, he replied that "as long as [he was her] boss, [she] w[ould] have to

follow all of [his] orders with the exception of killing someone." Because he

had a "smirk on his face" when he said it, plaintiff interpreted this statement as

Spencer's way of informing her that she must "succumb[] to his sexual advances

or face his often times irrational wrath." Out of anger, plaintiff responded that

"killing someone [could] always be arranged."

Plaintiff stated that another example of Spencer's harassing and retaliatory

behavior occurred when he temporarily assigned her to partner with Officer

Kiyata Derrick, a smoker. As a cancer survivor who also suffered from other

medical conditions, plaintiff believed Spencer knew that working with Derrick

"would have made [plaintiff] sick . . . and caused [her] to go home and book

off," giving him "more ammunition to [go] after [her]." When she advised

Spencer of her inability to work with Derrick, Spencer refused to allow her to

switch partners and told her to ask Derrick to "get out of the car to smoke."

Plaintiff acknowledged that Derrick complied with her request to not smoke

while in their patrol car.

A-4524-17T3

8

According to plaintiff, yet another instance of Spencer's retaliatory

conduct and harassing attitude toward her occurred on August 10, 2014. On that

date, during her shift, plaintiff and her partner were "called back" to the precinct

but were delayed because they responded to a motor vehicle accident. Plaintiff

explained that because gathering victim statements is prioritized over

responding to the precinct, plaintiff went to the hospital first to obtain the

accident victim's statement. Thereafter, plaintiff and her partner reported to the

precinct where plaintiff asked her partner to "find out what [Spencer] wanted"

as a means of "avoiding [him]."

Plaintiff's partner advised that Spencer specifically wanted to speak to

plaintiff. When plaintiff eventually responded, Spencer reportedly reprimanded

her for not responding immediately to the precinct after being called twice.

Spencer also told plaintiff that the tow reports she had submitted earlier required

changes, and that none of his "people" were going to "put[] them in" the system.

Plaintiff stated that Spencer's order was contrary to office protocol because,

typically, desk personnel entered the reports so that an officer need not be taken

from the field to do so.

A few days later, on August 19, 2014, plaintiff filed a formal

administrative complaint against Spencer. In her three-page submission,

A-4524-17T3

9

plaintiff described the March 2013 "hug request," the April 2013 "wife

comment," and the "follow orders" except killing someone edict. Plaintiff wrote

that "things escalated and continued to get worse" as Spencer would "incite

confrontations, provoke a negative response from [her], and instigate

altercations to see how [Spencer] could be amused by [her] reaction." Plaintiff

stated that, although she was advised by superiors to do so, she did not submit a

written complaint at the time of the March or April 2013 incidents because she

"was fearful of . . . Spencer's political ties."

In her administrative complaint, plaintiff also wrote that Spencer would

"overly scrutinize[]" her "patrol reports," causing her to feel like she was being

"treated like an illiterate grade school child correcting [her] own homework."

Plaintiff further recounted being partnered with a smoker as well as the August

10, 2014 tow report incident. Plaintiff explained that "[her] body . . . react[ed]

to the unnecessary stress[,] triggering chronic nose bleeds, migrain e headaches,

excessive hair loss[,] and acne," in addition to chronic "laryngitis." Plaintiff

stated she was "no longer mentally or physically capable of working in those

types of conditions."

Following the submission of plaintiff's written complaint, a formal

investigation by the Newark Police Department's Office of Professional

A-4524-17T3

10

Standards (OPS) was launched. Spencer was transferred out of the fifth precinct

prior to the completion of the investigation. The investigation was conducted

by OPS's Lieutenant Anthony Rawa, Jr., who ultimately issued a report

"exonerate[ing]" Spencer and recommending that the "investigation be closed."

During the investigation, Rawa conducted a recorded video interview of

plaintiff on September 1, 2014, during which she reiterated the incidents and the

effects of the work environment created by Spencer. Regarding the "tow

reports" incident, plaintiff acknowledged that "her [tow] reports" contained

"'many mistakes' and she had to 'redo them because of her state of mind that

day.'" Further, while plaintiff acknowledged that Spencer never asked her for a

date and that she had little interaction with him outside of work, plaintiff

elaborated on her allegations of unwanted "sexual advances." Specifically,

according to plaintiff, although she admitted telling Spencer that she did not

"date black men" in an effort to stop his advances, Spencer turned her comment

into "a joke," wherein on three or four occasions, Spencer said to other officers

that plaintiff "don't do black." 2

2

Plaintiff acknowledged that other officers made the same comment to her,

prompting her to "curse them out."

A-4524-17T3

11

In the course of the investigation, Rawa reviewed plaintiff's medical

records, which showed that the "physical ailments" plaintiff attributed "to the

stress of her work environment" were also "side effects" from medications she

took for unrelated medical conditions while under Spencer's supervision. Rawa

also reviewed both plaintiff's and Spencer's performance evaluations, which

were unremarkable. Additionally, Rawa obtained statements from fellow

officers, including Officer Glen Drinkard. Drinkard worked on desk duty under

Spencer and reported that, in that capacity, he "handled multiple tasks"

simultaneously. He also affirmed that "Spencer, like most supervisors, . . .

return[ed] reports to officers when corrections [were] needed."

Based on his investigation, relying on departmental procedures and

policies, Rawa concluded that Spencer "acted within the realm of his duties as a

[d]esk [l]ieutenant in . . . reviewing reports for accuracy, ordering desk

personnel to perform multiple tasks and adjusting patrol assignments when

necessary." Regarding plaintiff's specific allegations of hostile work

environment, Rawa concluded that plaintiff

failed to specify any incident where the conduct of . . .

Spencer rose to the level of a [h]ostile [w]ork

[e]nvironment or [h]arassment. There was no

supporting documentation of these incidents when they

occurred and . . . [plaintiff] never advised . . . Spencer

that comments he made were unwelcome or

A-4524-17T3

12

unwarranted when they did happen. . . . [Further,]

Spencer was never found to have initiated any of these

uncomfortable or humiliating conversations.

The first incident that resulted in disciplinary charges plaintiff attributed

to Spencer's harassing conduct occurred on September 28, 2014. On that date,

after missing a few days of work due to a sinus infection, plaintiff reported to

patrol duty and began to feel "weird" and "swollen." Toward the end of her

shift, Lieutenant Freddy Hill—a reported friend of Spencer—arrived at the

precinct to relieve plaintiff's supervising sergeant. Plaintiff advised Hill that she

was unable to work mandatory overtime to cover staffing shortages because she

was "sick and . . . [had] to go home to take [her] medication for the sinus

infection and the pain." According to plaintiff, Hill said he did not care, and

ordered her to report to the "West District" where Spencer worked. Plaintiff

believed she would be working under "[Spencer's] command" and that Hill's

order was a means of harassing her. 3 Thus, in direct violation of Hill's order,

plaintiff went home at the end of her shift.

As a result, on October 2, 2014, Hill notified plaintiff that she was being

investigated for "insubordination toward a superior officer" and for "book[ing]

3

Plaintiff acknowledged in her deposition that she did not know whether

Spencer was, in fact, on duty in the West District at that specific time.

A-4524-17T3

13

off sick" despite receiving "a direct lawful order that [she] was being held over

on overtime." 4 Plaintiff submitted an October 14, 2014 report providing her

account of what transpired.

Following an investigation, on November 3, 2014, plaintiff was served

with a preliminary notice of disciplinary action (PNDA), containing a total of

six charges related to the September 28, 2014 "booking off" incident: (1)

insubordination for failing to follow Hill's order to remain on duty and work

mandatory overtime; (2) failure to obey Hill's order; (3) neglect of duty by

failing to remain on duty when ordered; (4) malingering or feigning an illness;

(5) absence without leave (AWOL), or leaving without consent of a superior

officer; and (6) providing a false statement in her October 14, 2014 report that

she made Hill aware of her health condition and his response was that he did not

care.

On March 3, 2015, following a departmental hearing during which

plaintiff was represented by counsel, plaintiff was found guilty of

insubordination, failure to obey orders, neglect of duty, malingering, and being

AWOL, and received a six-day suspension from March 16 until March 23, 2015.

4

In her deposition, plaintiff acknowledged that while she had "no [supporting]

facts," she "believed . . . in [her] heart" that Spencer told Hill "to bring [her] up

on disciplinary charges" because "supervisors stick together."

A-4524-17T3

14

Plaintiff stated she was unsure when she was scheduled to return to duty after

serving her suspension, and returned to work on March 25 instead of March 24,

2015.

Upon returning to duty on March 25, plaintiff was late, made a

disrespectful remark directed at Hill that she was suspended "thanks to [him],"

and "rudely snatched" a report from Hill's hand. As a result, following an

investigation, on May 1, 2015, plaintiff was again served with a PNDA, charging

her with insubordination, unprofessional use of language, neglect of duty, and

failure to report for duty punctually. Plaintiff waived her right to a departmental

hearing, and was found guilty on July 21, 2015, resulting in a forty-five-day

suspension.

Additionally, plaintiff was charged with being AWOL, and neglect of duty

for failing to report to duty on March 24, 2015, as scheduled, after serving her

suspension. Plaintiff waived her right to a departmental hearing on the AWOL

charge, and was found guilty on August 7, 2015, resulting in a thirty-day

suspension.

The final incident that resulted in disciplinary charges against plaintiff

occurred on March 9, 2015, just prior to her serving her six-day suspension. On

that day, plaintiff and her partner responded to a domestic violence (DV) call,

A-4524-17T3

15

but reported they were unable to gain entry because the door was locked.

Because there was no timely police intervention, the victim was attacked by the

assailant a second time. In addition, despite receiving orders to "detain and

conduct a field interrogation on the actor involved," plaintiff and her partner

failed to do so and the assailant left the scene. When back-up officers arrived

at the scene, they confirmed that the building was in fact "unsecured and the

locks were inoperable," contrary to plaintiff's and her partner's prior

representations.

After Lieutenant Mathew Milton received a citizen complaint from the

DV victim in connection with the police response, an investigation ensued. As

a result, on May 1, 2015, plaintiff was served with a PNDA charging her with

neglect of duty, failure to obey orders, and providing false statements because

plaintiff "neglected to provide service to [the DV victim]," and the "delay in

service, coupled with the additional assault, caused the Newark Police

Department to be viewed in an unprofessional manner." Plaintiff waived her

right to a departmental hearing, and, on July 21, 2015, was found guilty and

suspended for fifteen days.

Plaintiff's suspensions on the disciplinary actions totaled ninety-six days.

Plaintiff appealed each decision to the Civil Service Commission (CSC), which

A-4524-17T3

16

transferred the matter to the Office of Administrative Law (OAL) as a contested

matter. Plaintiff challenged the suspensions because she believed defendants

were discriminating against her based on her gender, nationality, and perceived

disability as a cancer survivor. Plaintiff testified in her deposition that she was

treated differently from "black female[ officers]" because the Department "do[es

not] even bring them up on charges when they go off on their supervisors."

Plaintiff cited as an example an instance where two black female officers

engaged in verbal arguments with Hill and were never brought up on charges.

Plaintiff also referred to Spencer's "arrest[ in Jersey City] for [a DV] incident"

during which he "hit his girlfriend." According to plaintiff, although the charges

were "dismissed," unlike her, "no disciplin[ary] action was taken against

[Spencer]."

On June 26, 2017, the Administrative Law Judge (ALJ) sustained

plaintiff's suspensions arising out of the "booking off" incident, the disrespectful

comment to Hill, and the DV call, but reduced the forty-five-day suspension to

fifteen days. The ALJ dismissed the charge related to the AWOL incident and

the attendant thirty-day suspension, finding "[t]here was substantial confusion

as to whether the suspension days should be calculated on a work[-]day schedule

or a calendar schedule." On July 28, 2017, the CSC adopted the ALJ's findings

A-4524-17T3

17

and recommendations, with the exception of the reduction of the forty-five-day

suspension to fifteen days. Instead, the CSC imposed a thirty-day suspension.

Plaintiff did not appeal the CSC's decision.

On September 28, 2015, plaintiff filed her complaint. Following

discovery, defendants moved for summary judgment. On May 14, 2018,

following oral argument, finding no genuine issue of material fact and viewing

the facts in the light most favorable to plaintiff, the judge granted defendants'

motion.

First, the judge dismissed plaintiff's LAD claim based on hostile work

environment sexual harassment. Relying on Lehmann v. Toys 'R' Us, 132 N.J.

587 (1993), the judge determined that "two requests for hugs unaccompanied by

anything else," that occurred "at least four years apart"—one at the Christmas

party in 2009 and the other when Spencer made the captain's list in 2013—were

"not severe or pervasive." The judge explained that even considering Spencer's

remark about following orders other than killing someone, the wife comment,

and jokes about plaintiff not dating black men, "no reasonable juror could find

[those comments] to be severe or pervasive enough to make a reasonable woman

believe that the conditions of employment [were] altered and the working

environment [was] hostile or abusive."

A-4524-17T3

18

Turning to plaintiff's claim of hostile work environment based on her

status as a person of Puerto Rican descent, the judge found "there [was] no

evidence" to suggest that "[plaintiff] was targeted for internal affairs

investigations" and subjected to "discipline" because of her nationality. The

judge explained that plaintiff presented no viable evidence that the City failed

to charge or "quashed" charges against non-Puerto Rican police officers for

"similar" conduct. The judge rejected plaintiff's contention that the City's failure

to administratively discipline Spencer, an African American, based on his

involvement in a DV dispute with his girlfriend in Hudson County constituted

proof of disparate treatment. According to the judge, unlike the DV call in

which plaintiff responded in her official capacity as a police officer, Spencer's

off-duty DV dispute occurred in his personal capacity and resulted in a dismissal

of all related charges.

As to plaintiff's CEPA claim, the judge determined there was "no nexus"

or "causal link" between the protected activity and adverse employment actions.

According to the judge, the disciplinary charges, which were affirmed

administratively, primarily involved Hill and had "nothing to do with . . .

Spencer," against whom plaintiff had engaged in protected activity by lodging

A-4524-17T3

19

her objection and complaint. The judge explained that plaintiff's attempt to

make a connection between the two was "just fanciful possibility."

Next, the judge dismissed plaintiff's intentional infliction of emotional

distress claim. Acknowledging that under Taylor v. Metzger, 152 N.J. 490

(1998), "one word" could suffice, the judge found based on his review of the

incidents catalogued by plaintiff that there was nothing said or done by Spencer

"that [could] qualify as outrageous or beyond all possible bounds of decency in

the eyes of any juror."

The judge also dismissed plaintiff's conspiracy claim because there was

no evidence of an agreement between Spencer and Hill. The judge explained

that Spencer's and Hill's friendship was not "enough to suggest" that "what Hill

did was the result of a conspiracy," particularly since the disciplinary charges

stemmed from plaintiff "booking out" and "leaving . . . without authorization"

and "grabbing [something] out of Hill's hand." According to the judge, to

suggest that "somehow . . . Hill was able to trick . . . plaintiff into doing [what

she did] because he [was] friends with Spencer" as part of a conspiracy was "just

farfetched" and "silly."

Additionally, the judge dismissed plaintiff's claim for intentional

interference with contractual relations, explaining that the facts did not reveal

A-4524-17T3

20

any conduct that "would qualify as interference with [plaintiff's] right to

economic advantage by Spencer." The judge determined that whatever loss of

pay plaintiff incurred under her contract "while she was suspended . . . had

nothing to do with Spencer" since he did not initiate any of the disciplinary

charges.

Regarding the CRA claim, the judge stated that in order for N.J.S.A. 10:6-

2(c) to "provide[] redress for violation of substantive rights under the

Constitution or laws of the United States o[r] New Jersey," plaintiff had to

"identif[y] the right that was denied and . . . show that her rights were denied by

custom or policy." The judge determined that plaintiff failed to identify "a

policy maker who denied plaintiff her substantive rights," and pointed to "no

policy or custom" that violated her rights, noting that "[r]espondeat superior

alone [was] not enough." Further, the judge considered but rejected plaintiff's

claim that "Newark's anti[-]discrimination policy [was] illusionary." The judge

added that "to the degree that CEPA and LAD are the substantive rights that . . .

plaintiff is alleging [are] covered by the [CRA claims,] then the [CRA count]

has to be . . . dismissed" based on the dismissal of the CEPA and LAD counts.

Finally, the judge dismissed plaintiff's negligence claim. The judge

explained that despite City Personnel Director Kecia Daniels's deposition

A-4524-17T3

21

testimony admitting that she was unaware of "a lot of things that were going

on," there was no evidence that the City was grossly negligent, nor was there

any proximate cause between the City's alleged negligent supervision of the

Newark Police Department and "damage[s] suffered by . . . plaintiff." The

judge's oral decision was memorialized in a May 18, 2018 order, and this appeal

followed.

II.

We review a grant of summary judgment applying the same standard used

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366

(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. On 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.

[Ibid. (quoting R. 4:46-2(c)).]

If there is no genuine issue of material fact, we must "decide whether the

trial court correctly interpreted the law." DepoLink Court Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

A-4524-17T3

22

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We

review issues of law de novo and accord no deference to the trial judge's legal

conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "The practical

effect of [Rule 4:46-2(c)] is that neither the motion court nor an appellate court

can ignore the elements of the cause of action or the evidential standard

governing the cause of action." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).

Applying these principles, we agree with the motion judge's ultimate

conclusion that there are no "genuinely disputed issues of [material] fact" with

respect to plaintiff's claims, and that defendants are entitled to summary

judgment "as a matter of law." Troupe v. Burlington Coat Factory Warehouse

Corp., 443 N.J. Super. 596, 601 (App. Div. 2016) (citing Brill, 142 N.J. at 540).

The crux of plaintiff's argument is that she was subjected to hostile work

environment sexual harassment, discriminated against because of her ethnicity,

and retaliated against after complaining about the discrimination in violation of

CEPA, all of which formed the basis for the other causes of action alleged. In

turn, we examine the elements of a prima facie case for each of plaintiff's claims.

A. Plaintiff's LAD Claims

To prove a hostile work environment sexual harassment claim under the

LAD, the plaintiff must "demonstrate that 'the complained-of conduct (1) would

A-4524-17T3

23

not have occurred but for the employee's gender; and it was (2) severe or

pervasive enough to make a (3) reasonable woman believe that (4) the conditions

of employment are altered and the working environment is hostile or abusive.'"

Griffin v. City of E. Orange, 225 N.J. 400, 413-14 (2016) (emphasis omitted)

(quoting Lehmann, 132 N.J. at 603-04). In order to determine whether the

conduct was "severe or pervasive," courts must consider "whether a reasonable

person would believe that the conditions of employment have been altered and

that the working environment is hostile." Shepherd v. Hunterdon

Developmental Ctr., 174 N.J. 1, 24 (2002). Thus, although plaintiff only

challenges the judge's evaluation of the second prong, we must also examine the

third and fourth prongs because "the second, third, and fourth prongs are, to

some degree, interdependent." Ibid.

Under the second prong,

[w]hether conduct is "severe or pervasive" requires an

assessment of the totality of the relevant circumstances,

which involves examination of (1) "the frequency of all

the discriminatory conduct"; (2) "its severity"; (3)

"whether it is physically threatening or humiliating, or

a mere offensive utterance"; and (4) "whether it

unreasonably interferes with an employee's work

performance."

[Godfrey v. Princeton Theological Seminary, 196 N.J.

178, 196 (2008) (quoting Green v. Jersey City Bd. of

Educ., 177 N.J. 434, 447 (2003)).]

A-4524-17T3

24

While "a single act of . . . offensive conduct could, under certain

conditions, create a hostile work environment," such cases are "'rare and

extreme.'" Oakley v. Wianecki, 345 N.J. Super. 194, 202 (App. Div. 2001)

(quoting Lehmann, 132 N.J. at 606-07). Thus, we must consider "the cumulative

effect of the various incidents." Godfrey, 196 N.J. at 196 (quoting Lehmann,

132 N.J. at 607). Additionally, "when determining whether conduct has created

a hostile work environment, the harassing conduct itself must be evaluated, 'not

its effect on the plaintiff,'" id. at 197 (quoting Lehmann, 132 N.J. at 606), and

the conduct must be assessed "by use of a reasonable-person standard, which

was adopted to keep the test for harassing conduct tied to reasonable community

standards and yet allow for its evolution as societal norms mature." Ibid. (citing

Lehmann, 132 N.J. at 603-04, 612).

Here, under the totality of the circumstances, we agree with the judge that

Spencer's actions do not amount to severe or pervasive conduct under the case

law. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (holding

that merely offensive rudeness, teasing, offhand comments, and isolated

incidents do not amount to harassment); see also Heitzman v. Monmouth Cty.,

321 N.J. Super. 133, 147 (App. Div. 1999) ("An employment discrimination law

A-4524-17T3

25

such as the LAD is not intended to be 'a "general civility" code' for conduct in

the workplace.").

Although Spencer's 2009 and 2013 hug requests were inappropriate and

undoubtedly made plaintiff feel uncomfortable, the judge correctly evaluated the

frequency as well as the conduct itself and "not its effect on . . . plaintiff."

Godfrey, 196 N.J. at 196-97 (quoting Lehmann, 132 N.J. at 606). Further,

Spencer's wife comment, while offensive and insulting, resulted from a verbal

confrontation in which plaintiff introduced the word "wife." Likewise,

Spencer's comment that plaintiff should follow his orders emanated from a

verbal altercation when plaintiff objected to an assignment. Additionally,

Spencer's comment regarding plaintiff's dating preference, while crude, arose

from plaintiff's own account of her preference.

Under the LAD, insults, rudeness, and even severe personality conflicts

as evident here are generally insufficient to establish a hostile work

environment. Taylor, 152 N.J. at 500-02; see Herman v. Coastal Corp., 348 N.J.

Super. 1, 20-21 (App. Div. 2002) ("Personality conflicts, albeit severe, do not

equate to hostile work environment claims simply because the conflict is

between a male and female employee."); Flizack v. Good News Home for

Women, Inc., 346 N.J. Super. 150, 160 (App. Div. 2001) ("[W]e recognize that

A-4524-17T3

26

offensive, crude or inappropriate comments are not automatically discriminatory

because the words used are tinged with . . . sexual connotations."); Heitzman,

321 N.J. Super. at 147 (characterizing "merely offensive" comments as

insufficient to sustain hostile work environment claim).

Similarly, plaintiff's account of incidents where she had to squeeze by

Spencer at his desk and witness him gazing at attractive female inmates do not

satisfy the elements of a prima facie LAD claim. Although "plaintiff's work

environment is affected not only by conduct directed at herself but also by the

treatment of others," Baliko v. Stecker, 275 N.J. Super. 182, 190 (App. Div.

1994), plaintiff provided insufficient details about Spencer's purported gazing

at female inmates to determine whether the conduct occurred because of

plaintiff's gender or indiscriminately in the presence of other employees,

including males. See ibid. (explaining that "[e]vidence of sexual harassment

directed at other women is relevant to both the character of the work

environment and its effects on the complainant." (quoting Lehmann, 132 N.J. at

611)); Herman, 348 N.J. Super. at 20 (finding that "[t]he defining element in

hostile work environment cases is not that the conduct was sexual in nature, but

that the harassment occur[red] because of the employee's gender."). Further,

plaintiff's account of Spencer positioning himself at his own desk "was devoid

A-4524-17T3

27

of facts and based on unsubstantiated inferences and feelings." Oakley, 345 N.J.

Super. at 201.

Turning to plaintiff's ethnic discrimination claim under the LAD, to prove

disparate treatment discrimination,5 a plaintiff must establish by a

preponderance of the evidence that: (1) plaintiff is a member of a protected class;

(2) plaintiff was performing the job consistent with the employer's expectations;

(3) plaintiff suffered an adverse employment action; and (4) others not within

the protected class did not suffer adverse employment actions. Maher v. N.J.

Transit Rail Operations, Inc., 125 N.J. 455, 480-81 (1991). "A disparate

treatment claim with regard to discipline requires comparison between the

defendant's conduct toward plaintiff and other members of the protected class

on one hand, and similarly situated employees not within the protected class on

the other." Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 305 (App.

Div. 2000).

Once the prima facie case is established, the burden shifts to the employer

to articulate a legitimate, nondiscriminatory reason for the adverse employment

5

Disparate treatment occurs when "[t]he employer simply treats some people

less favorably than others because of their race, color, religion, sex, or national

origin." Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 398 (2005)

(quoting Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 81 (1978)).

A-4524-17T3

28

action. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005). If the employer

overcomes the presumption of discrimination, the burden shifts back to plaintiff

to prove that the employer's proffered reason for the adverse employment action

was merely a pretext for discrimination. Bergen Commer. Bank v. Sisler, 157

N.J. 188, 211 (1999).

Here, plaintiff's unsupported conclusory statement that "[o]ther officers

of different backgrounds were not treated the same way for similar conduct"

could not lead a jury to reasonably conclude that defendants imposed no or lesser

discipline on non-Puerto Ricans for comparable infractions. See Horizon Blue

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012) ("Bare

conclusory assertions, without factual support in the record, will not defeat a

meritorious application for summary judgment." (citing Brae Asset Fund, L.P.

v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999))); accord Puder v.

Buechel, 183 N.J. 428, 440-41 (2005) ("[C]onclusory and self-serving assertions

by one of the parties are insufficient to overcome the [summary judgment]

motion.").

Plaintiff relies on the fact that "Spencer, an African-American male[,] was

arrested in Hudson County on a [DV] charge for beating up his girlfriend" but

was never administratively charged or suspended by the Department. However,

A-4524-17T3

29

"[a]n 'inference of discrimination' does not arise 'anytime a single member of a

non-protected group was allegedly treated more favorably than one member of

the protected group, regardless of how many other members of the non-protected

group were treated equally or less favorably.'" Jason, 329 N.J. Super. at 307

(quoting Simpson v. Kay Jewelers, 142 F.3d 639, 646 (3d Cir. 1998)).

Further, as the judge noted, Spencer's off-duty DV incident was not

comparable misconduct to plaintiff's because Spencer was not acting in an

official capacity. In contrast, the disciplinary charge that arose from plaintiff's

malfeasance in responding to the DV call occurred in her official capacity. O ur

Supreme Court has held that "[a]nti-discrimination laws do not permit courts to

make personnel decisions for employers," and instead "simply require that an

employer's personnel decisions be based on criteria other than those proscribed

by law." Peper, 77 N.J. at 87. Inasmuch as the City's decision regarding whether

or not to file disciplinary charges against Spencer for the DV incident was a

personnel decision, and there is no evidence in the record to indicate that it

improperly considered plaintiff's or Spencer's race or ethnicity in making its

decision, there is no legal proscription.

Moreover, plaintiff offered no other evidence that defendants' legitimate,

nondiscriminatory reasons for filing disciplinary charges against her, charges

A-4524-17T3

30

that were largely affirmed by the ALJ and adopted by the CSC, were pretextual.

See Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002) ("To prove pretext, . . .

a plaintiff must do more than simply show that the employer's reason was false;

he or she must also demonstrate that the employer was motivated by

discriminatory intent."). Indeed, there is no evidence in the record that "an

invidious discriminatory reason was more likely than not" the cause of plaintiff's

disciplinary charges to withstand summary judgment. Zive, 182 N.J. at 456

(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

B. Plaintiff's CEPA Claim

Turning to plaintiff's CEPA claim, "[t]he purpose of CEPA . . . is to protect

and encourage employees to report illegal or unethical workplace activities and

to discourage public and private sector employers from engaging in such

conduct." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431

(1994). To establish a prima facie case under CEPA, a plaintiff must

demonstrate that:

(1) he or she reasonably believed that his or her

employer's conduct was violating either a law, rule, or

regulation promulgated pursuant to law, or a clear

mandate of public policy;

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

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

A-4524-17T3

31

(3) an adverse employment action was taken against

him or her; and

(4) a causal connection exists between the whistle-

blowing activity and the adverse employment action.

[Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015)

(quoting Dzwonar v. McDevitt, 177 N.J. 451, 462

(2003)).]

Pertinent to this appeal, N.J.S.A. 34:19-3(c) provides that an employer

shall not take retaliatory action against an employee because the employee:

[o]bjects to, or refuses to participate in any activity,

policy[,] or practice which the employee reasonably

believes:

(1) is in violation of a law, or a rule or regulation

promulgated pursuant to law, . . . ;

(2) is fraudulent or criminal, . . . ; or

(3) is incompatible with a clear mandate of public

policy concerning the public health, safety or welfare

or protection of the environment.

[N.J.S.A. 34:19-3(c).]

A plaintiff who brings a claim pursuant to N.J.S.A. 34:19-3(c) need not

show that the employer actually violated the law or a clear mandate of public

policy. Dzwonar, 117 N.J. at 462; Gerard v. Camden Cty. Health Servs. Ctr.,

348 N.J. Super. 516, 522 (App. Div. 2002). Instead, a plaintiff need only show

A-4524-17T3

32

that he or she "reasonably believed" that to be the case. Estate of Roach v. TRW,

Inc., 164 N.J. 598, 613 (2000).

"CEPA does not require any magic words in communicating an

employee's reasonable belief of illegal activity." Beasley v. Passaic Cty., 377

N.J. Super. 585, 605 (App. Div. 2005). "The object of CEPA is not to make

lawyers out of conscientious employees but rather to prevent retaliation against

those employees who object to employer conduct that they reasonably believe

to be unlawful." Mehlman, 153 N.J. at 193-94. "CEPA is designed to protect

employees who 'blow the whistle' on illegal or unethical activity committed by

their employers or co-employees, and as such, is remedial legislation that should

be construed liberally to achieve its purpose." Beasley, 377 N.J. Super. at 605

(quoting Estate of Roach, 164 N.J. at 609-10).

Here, plaintiff failed to satisfy the third and fourth prongs to establish a

prima facie CEPA claim. Regarding the third prong, the substantiated

disciplinary charges that resulted in plaintiff's suspensions cannot establish

retaliation for plaintiff engaging in protected activity by objecting to and

reporting Spencer's conduct because the disciplinary charges arose from reasons

unrelated to plaintiff's complaint. See Higgins v. Pascack Valley Hosp., 158

N.J. 404, 424 (1999) ("Filing a complaint . . . does not insulate the complaining

A-4524-17T3

33

employee from discharge or other disciplinary action for reasons unrelated to

the complaint.").

Moreover, while plaintiff disputed the legal ramifications, she

acknowledged that she did in fact engage in the conduct that ultimately led to

her disciplinary charges. Beasley, 377 N.J. Super. at 607 ("Where the affected

party does not deny committing an infraction that resulted in discipline, the

discipline cannot be considered 'proscribed reprisal.'"); see also Hancock v.

Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002) (holding that

when a plaintiff is "afforded a hearing" and "represented by counsel," he or she

"cannot claim that . . . substantiated disciplinary charges and resulting brief

suspensions from work [are] retaliatory."). Further, notwithstanding the timing,

because the disciplinary charges were filed against plaintiff by superiors other

than Spencer, and none of the incidents for which plaintiff was disciplined

involved Spencer, there is no causal connection between the whistle-blowing

activity and the adverse employment action to establish the fourth prong.

C. Plaintiff's CRA Claim

The CRA was adopted in 2004 "for the broad purpose of assuring a state

law cause of action for violations of state and federal constitutional rights and

to fill any gaps in state statutory anti-discrimination protection." Ramos v.

A-4524-17T3

34

Flowers, 429 N.J. Super. 13, 21 (App. Div. 2012) (quoting Owens v. Feigin, 194

N.J. 607, 611 (2008)). N.J.S.A. 10:6-2(c) provides an individual a remedy in

the form of a civil action for damages against private and public defendants if

the individual can demonstrate that he or she

has been deprived of any substantive due process or

equal protection rights, privileges or immunities

secured by the Constitution or laws of the United

States, or any substantive rights, privileges or

immunities secured by the Constitution or laws of this

State, or whose exercise or enjoyment of those

substantive rights, privileges or immunities has been

interfered with or attempted to be interfered with, by

threats, intimidation or coercion by a person acting

under color of law . . . .

Thus, there are "two types of private claims . . . under this statute: (1) a claim

when one is 'deprived of a right,' and (2) a claim when one's rights have been

'interfered with by threats, intimidation, coercion or force.'" Lapolla v. Cty. of

Union, 449 N.J. Super. 288, 306 (App. Div. 2017) (quoting Felicioni v. Admin.

Office of Courts, 404 N.J. Super. 382, 400 (App. Div. 2008)).

A cause of action brought under the CRA has the same elements as the

analogous federal Civil Rights Act, 42 U.S.C. § 1983 (Section 1983), after which

New Jersey's CRA was modeled. Rezem Family Assocs., LP v. Borough of

Millstone, 423 N.J. Super. 103, 115 (App. Div. 2011); see also Filgueiras v.

Newark Pub. Sch., 426 N.J. Super. 449, 468 (App. Div. 2012). Similar to a

A-4524-17T3

35

cause of action under Section 1983, in order to prevail under the CRA, a plaintiff

must first identify "'the person acting under color of law[]' that has caused the

alleged deprivation," and then "identify a 'right, privilege or immunity' secured

to the claimant" by the state or federal constitution or state or federal laws.

Rezem, 423 N.J. Super. at 114-15 (quoting Rivkin v. Dover Twp. Rent Leveling

Bd., 143 N.J. 352, 363 (1996)).

"Although local governments are 'persons' for purposes of [Section] 1983,

a municipality generally cannot be held liable in a [Section] 1983 action for the

acts of employees under the principle of respondeat superior." Stomel v. City

of Camden, 192 N.J. 137, 145 (2007). "An exception exists when an official

municipal 'policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy,' is the cause of the

constitutional deprivation." Ibid. (quoting Monell v. Dep't of Soc. Servs., 436

U.S. 658, 694 (1978)).

Municipal liability attaches only where the

decisionmaker possesses final authority to establish

municipal policy with respect to the action ordered.

The fact that a particular official—even a policymaking

official—has discretion in the exercise of particular

functions does not, without more, give rise to municipal

liability based on an exercise of that discretion. The

official must also be responsible for establishing final

government policy respecting such activity before the

municipality can be held liable.

A-4524-17T3

36

[Loigman v. Twp. Comm., 185 N.J. 566, 591 (2006)

(quoting Pembaur v. City of Cincinnati, 475 U.S. 469,

481-82 (1986)).]

Here, to support her CRA claim, plaintiff relies heavily on Daniels's

deposition testimony. As the City's personnel director, Daniels was "responsible

for on-boarding . . . employees [meaning the] hiring, discipline, [and]

termination[ of employees]." She also implemented employee benefits and was

"in charge of the training unit," among other things. However, Daniels

acknowledged that the Chief of Police did not report to her. Daniels testified

that because the police department is a paramilitary organization, most of

plaintiff's complaints and allegations of harassment, discrimination, and

retaliation were handled "internally" through the chain of command. Thus,

Daniels never learned about the allegations until the litigation was filed. Daniels

confirmed, however, that the City had an anti-discrimination, anti-harassment,

and anti-retaliation policy in place during the relevant time period, which

allowed plaintiff to circumvent the chain of command.6

Based on this testimony, plaintiff asserts that "Newark's long-established

custom of promoting woefully deficient workplace policies and practices"

6

Plaintiff acknowledged that the Department required each member to undergo

mandatory in-service sexual harassment training two times per year.

A-4524-17T3

37

regarding sexual discrimination, harassment, and retaliation "compromised the

safety and well-being of . . . employees who are victims of illegal conduct in the

workplace." However, Daniels is not the official responsible for establishing

final government policy respecting these activities in the police department for

the municipality to be held liable. Further, other than the LAD and CEPA,

plaintiff failed to specify the constitutional rights allegedly infringed. Thus,

because plaintiff's CRA claim is dependent upon the success of her CEPA and

LAD claims, both of which have been rejected, plaintiff's CRA claim must also

fail.

D. Plaintiff's Intentional Infliction of Emotional Distress Claim

To prove intentional infliction of emotional distress, a plaintiff must

show:

(1) defendant acted intentionally; (2) defendant's

conduct was "so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community;" (3) defendant's

actions proximately caused him [or her] emotional

distress; and (4) the emotional distress was "so severe

that no reasonable [person] could be expected to endure

it."

[Segal v. Lynch, 413 N.J. Super. 171, 191 (App. Div.

2010) (second alteration in original) (quoting Buckley

v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988)).]

A-4524-17T3

38

We have described the second required element "as an 'elevated threshold'

that is satisfied only in extreme cases." Ingraham v. Ortho-McNeil Pharm., 422

N.J. Super. 12, 21 (App. Div. 2011) (Griffin v. Tops Appliance City, Inc., 337

N.J. Super. 15, 23 (App. Div. 2001)). "A court determines whether outrageous

conduct could possibly be found as a matter of law based on the facts, while a

jury determines if in fact that conduct was outrageous." G.D. v. Kenny, 411 N.J.

Super. 176, 194 (App. Div. 2009) (citing Taylor, 152 N.J. at 509-10); see also

Buckley, 111 N.J. at 367.

Here, we conclude, as did the judge, that Spencer's conduct, while

troubling, did not rise to the level of extreme and outrageous conduct necessary

to support a cause of action for intentional infliction of emotional distress.

"Indeed, the workplace has too many personal conflicts and too much behavior

that might be perceived as uncivil for the courts to be used as the umpire for all

but the most extreme workplace disputes." Ingraham, 422 N.J. Super. at 23; see

Taylor, 152 N.J. at 509 (finding a superior's single use of a racial slur towards

the plaintiff to be extreme and outrageous); Flizack, 346 N.J. Super. at 162

(explaining that "[m]ere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities" are insufficient to meet the outrageous

standard); see also Ingraham, 422 N.J. Super. at 21 (cataloguing cases in which

A-4524-17T3

39

courts have found extreme and outrageous conduct and cases in which it did

not).

E. Plaintiff's Civil Conspiracy Claim

Our Supreme Court described a civil conspiracy as

a combination of two or more persons acting in concert

to commit an unlawful act, or to commit a lawful act by

unlawful means, the principal element of which is an

agreement between the parties to inflict a wrong against

or injury upon another, and an overt act that results in

damage.

[Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177

(2005) (quoting Morgan v. Union Cty. Bd. of Chosen

Freeholders, 268 N.J. Super. 337, 364 (App. Div.

1993)).]

"To establish a conspiracy, 'it simply must be shown that there was "a

single plan, the essential nature and general scope of which [was] known to each

person who is to be held responsible for its consequences."'" Morgan, 268 N.J.

Super. at 365 (alteration in original) (quoting Hampton v. Hanrahan, 600 F.2d

600, 621 (7th Cir. 1979), rev'd in part on other grounds, Hanrahan v. Hampton,

446 U.S. 754 (1980)). Accordingly, a civil conspiracy exists where the

purported conspirator understood "the general objectives of the scheme,

accept[ed] them, and agree[d], either explicitly or implicitly, to do [their] part

to further them." Gandi, 184 N.J. at 177 (quoting Jones v. City of Chicago, 856

A-4524-17T3

40

F.2d 985, 992 (7th Cir. 1988)). Notably, the "gist of the claim is not the unlawful

agreement, 'but the underlying wrong which, absent the conspiracy, would give

a right of action.'" Id. at 177-78 (quoting Morgan, 268 N.J. Super. at 364).

Here, other than "unsubstantiated inferences and feelings," Oakley, 345

N.J. Super. at 201, the record is devoid of any evidence that Spencer and Hill

composed a "single plan" to file disciplinary charges against plaintiff, that they

"accept[ed]" those objectives, and that they agreed to carry out the plan.

Morgan, 268 N.J. Super. at 365; Gandi, 184 N.J. at 177. Thus, this claim was

properly dismissed.

F. Plaintiff's Tortious Interference with Contractual Relations Claim

A claim of tortious interference with contractual relations requires

plaintiff to demonstrate: "(1) actual interference with a contract; (2) that the

interference was inflicted intentionally by a defendant who is not a party to the

contract; (3) that the interference was without justification; and (4) that the

interference caused damage." Russo v. Nagel, 358 N.J. Super. 254, 268 (App.

Div. 2003). A claim must be based on facts showing that the interference was

done intentionally and with malice. Printing Mart-Morristown v. Sharp Elecs.

Corp., 116 N.J. 739, 751 (1989). "For purposes of this tort, '[t]he term malice

is not used in the literal sense requiring ill will toward the plaintiff,'" but rather

A-4524-17T3

41

meaning that the harm was inflicted intentionally and without justification or

excuse. Ibid. (alteration in original).

"[E]mployees and agents of a corporation can be charged with the tort of

intentional interference with a plaintiff's contract with the corporation."

Vosough v. Kierce, 437 N.J. Super. 218, 234 (App. Div. 2014). "However, 'if

an employee or agent is acting on behalf of his or her employer or principal,

then no action for tortious interference will lie.'" Ibid. (quoting DiMaria Const.,

Inc. v. Interarch, 351 N.J. Super. 558, 568 (App. Div. 2001)). "[A]n action for

tortious interference will lie" only if "the employee or agent is acting outsid e the

scope of his or her employment or agency." Ibid. (quoting DiMaria Const., 351

N.J. Super. at 568).

Here, plaintiff cannot establish that Spencer actually interfered with her

contract with the City because none of the disciplinary charges that resulted in

plaintiff's suspensions and loss of pay were filed by Spencer. Moreover, as a

party to the contract, the City cannot be liable for this tort. Kopp, Inc. v. United

Techs., 223 N.J. Super. 548, 559 (App. Div. 1988). Thus, the claim was properly

dismissed.

A-4524-17T3

42

G. Plaintiff's Negligence Claim

Under the Torts Claims Act, "[e]xcept as otherwise provided by th[e] ac t,

a public entity is not liable for an injury, whether such injury arises out of an act

or omission of the public entity or a public employee or any other person."

N.J.S.A. 59:2-1(a). N.J.S.A. 59:2-3(d) provides the following exception:

A public entity is not liable for the exercise of

discretion when, in the face of competing demands, it

determines whether and how to utilize or apply existing

resources, including those allocated for equipment,

facilities and personnel unless a court concludes that

the determination of the public entity was palpably

unreasonable.

Thus, to establish liability against a public entity, a plaintiff must demonstr ate a

prima facie case that the action or inaction of the public entity was "palpably

unreasonable." Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005).

The term "palpably unreasonable" implies "behavior that is patently

unacceptable under any given circumstance." Muhammad v. N.J. Transit, 176

N.J. 185, 195 (2003) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 494 (1985));

see also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009)

(explaining that to constitute "palpably unreasonable" conduct, "it must be

manifest and obvious that no prudent person would approve of [the entity's]

course of action or inaction." (quoting Kolitch, 100 N.J. at 493)). Further,

A-4524-17T3

43

whether the public entity's behavior was palpably unreasonable is generally a

question of fact for the jury. See Vincitore v. N.J. Sports & Exposition Auth.,

169 N.J. 119, 130 (2001).

However, a determination of palpable unreasonableness, "like any other

fact question before a jury, is subject to the court's assessment whether it can

reasonably be made under the circumstances presented." Maslo v. City of Jersey

City, 346 N.J. Super. 346, 351 (App. Div. 2002) (quoting Black v. Atlantic

Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)). Accordingly, "the

question of unreasonableness may be decided by the court as a matter of law in

appropriate cases." Id. at 350 (citing Garrison v. Twp. of Middletown, 154 N.J.

282, 311 (1998)).

Palpably unreasonable conduct "implies a more obvious and manifest

breach of duty" than negligence, "and imposes a more onerous burden on the

plaintiff." Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979).

Here, a review of the undisputed material facts reveals that plaintiff failed to

meet this burden, and that no rational factfinder could find that the City acted in

a "palpably unreasonable" manner in its decision-making process as it pertained

to its handling of plaintiff's complaints, its training on discrimination and

A-4524-17T3

44

harassment issues, and its supervision of Spencer. Thus, plaintiff's claim fails

as a matter of law.

In sum, plaintiff failed to establish the prima facie elements of her claims,

and the judge's decision granting defendants summary judgment and dismissing

the complaint with prejudice is legally supportable. To the extent we have not

addressed a particular argument, it is because either our disposition makes it

unnecessary or the argument was without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-4524-17T3

45