RUFINA ASOLUKA UNEZE v. GREYSTONE PARK PSYCHIATRIC HOSPITAL (L-2760-17, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-4301-19

RUFINA ASOLUKA UNEZE,

Plaintiff-Appellant,

v.

GREYSTONE PARK

PSYCHIATRIC HOSPITAL,

STATE OF NEW JERSEY,

MARY JO KURTIAK, MOISE

YOMB, and MR. SUNDAY,

Defendants-Respondents.

____________________________

Submitted February 9, 2022 – Decided March 11, 2022

Before Judges Hoffman and Geiger.

On appeal from the Superior Court of New Jersey, Law

Division, Morris County, Docket No. L-2760-17.

Eldridge Hawkins, attorney for appellant.

Andrew J. Bruck, Acting Attorney General, attorney for

respondents (Sookie Bae-Park, Assistant Attorney

General, of counsel; Eric Intriago, Deputy Attorney

General, on the brief).

PER CURIAM

Plaintiff Rufina Asoluka Uneze appeals from a Law Division order

granting summary judgment to remaining defendants Greystone Park

Psychiatric Hospital (Greystone) and the State of New Jersey.

We glean the following facts from the record. Plaintiff is a Registered

Nurse who was employed at Greystone as a charge nurse. At around 7:10 a.m.

on February 9, 2016, T.S., an adult male patient in a wheelchair reached out and

touched or grabbed plaintiff's buttocks without her consent. Plaintiff reacted by

first removing the patient's hands from her person, turning around, raising her

right hand above her head, and striking the patient on the left shoulder, then

forcefully pushing the patient's wheelchair away from her. Plaintiff denied

intentionally hitting the patient. The incident was captured on surveillance

video and witnessed by Greystone's CEO, Mary Jo Kurtiak, and Moise Yomb, a

nurse. Kurtiak immediately escorted plaintiff off the unit.

Department of Human Services (DHS) Administrative Order 4:08 states

Physical abuse is a physical act directed at a client,

patient or resident of a type that could tend to cause

pain, injury, anguish, and/or suffering. Such acts

include but are not limited to the client, patient, or

resident being kicked, pinched, bitten, punched,

slapped, hit, pushed, dragged, and/or struck with a

thrown or held object.

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The administrative regulations governing Greystone employees provide

that any employee who physically abuses a patient by striking, hitting, punching,

or slapping a patient is subject to termination. Plaintiff received training on this

policy and was aware that hitting a patient would result in termination. Plaintiff

acknowledges that the regulations do not provide for a lesser disciplinary

sanction for hitting a patient.

As a result of the incident, plaintiff was initially suspended with pay. The

incident was promptly investigated by Greystone Quality Assurance Specialist

Cornelius Doyle, who spoke with plaintiff, the patient, Kurtiak, and Yomb, and

prepared an Unusual Incident Report. The report substantiated physical abuse

of patient T.S. and noted that while plaintiff denied hitting the patient, video

evidence contradicted her denial.

One week later, plaintiff was served with a Preliminary Notice of

Disciplinary Action (PNDA) charging her with violating two subsections of

DHS Administrative Order 4:08: (C3) physical abuse of a patient, and (C5)

inappropriate physical contact or mistreatment of a patient. It also charged her

with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and other

sufficient cause, N.J.A.C. 4A:2-2.3(a)(12). The PNDA specified:

On February 9, 2016, at 7:11 [a.m.], Unit G1, you

physically abused patient T.S., who [was] in a

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wheelchair by hitting him on the left shoulder and

pushing him away in his wheelchair. This behavior is

unacceptable and furthermore constitutes mistreatment

of a patient and conduct unbecoming a public

employee.

Greystone sought to remove plaintiff. Following a Loudermill 1 hearing on July

25, 2016, plaintiff was suspended without pay.

A departmental hearing was conducted on July 25, 2016. Plaintiff was

represented at the hearing by a union Executive Vice-President. Plaintiff

testified that she was aware that striking a patient would result in termination,

and that there was a written policy stating this. Plaintiff was trained by

Greystone not to hit a patient. Plaintiff understood that if a supervisor believed

she physically abused a patient, she could be terminated and she believed that

would be appropriate. Plaintiff acknowledged that even if a Greystone patient

grabbed an employee's buttocks, the employee is not allowed to hit the patient.

1

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). A Loudermill

hearing is part of the due process afforded public employees by providing the

employee with an opportunity to hear and respond to the disciplinary charges,

and to refute any conclusions reached by the employer, prior to termination or

suspension without pay. See Caldwell v. N.J. Dep't of Corr., 250 N.J. Super.

592, 613 (App. Div. 1991) (quoting Loudermill, 470 U.S. at 546) (explaining

that "where a public employee has a constitutionally protectible property interest

in continued employment, that employee may not be terminated without first

being provided with the 'opportunity to present reasons, either in person or in

writing, why proposed action should not be taken. . . .'").

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Plaintiff stated: "If a patient attack[s] you, there is a response you should follow,

which tell[s] you to walk away. Call for help."

Plaintiff denied intentionally hitting the patient, describing it as a reflex

action. She claimed she swatted the patient's hand backward to push it away.

In his written decision, the hearing officer found that after patient T.S.

grabbed plaintiff from behind, plaintiff turned around, raised her hand, hit the

patient with a back-handed slap on the left shoulder, and then pushed his

wheelchair away from her. The hearing officer further found that the incident

was recorded on surveillance video and Kurtiak witnessed plaintiff hit the

patient and push his wheelchair away. The hearing officer noted that "DHS

Administrative Order 4:08 specifies a penalty of [r]emoval for a first infraction

of physical abuse." The hearing officer sustained each of the disciplinary

charges and found removal was appropriate.

Plaintiff was then served with an August 5, 2016, Final Notice of Major

Disciplinary Action (FNDA), removing her from employment effective

February 17, 2016. Plaintiff did not appeal her removal to the Civil Service

Commission. Instead, she filed this action.

On December 28, 2017, plaintiff filed a complaint against defendants

Greystone, the State, Mary Jo Kurtiak, Moise Yomb (Greystone employee), and

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Omoloyin Sunday (Greystone employee). Plaintiff pleaded the following causes

of action: sexual harassment and retaliation in violation of the New Jersey Law

Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -50 (count one);

interference with beneficial economic interest, breach of implied covenant of

good faith and fair dealing, and violation of the New Jersey Constitution (count

two); violation of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to

-2 (count three); libel, slander per se, and violation of substantive due process

and the right to free speech under the New Jersey Constitution (count four); and

misuse and abuse of process (count five).

Plaintiff alleged that Greystone filed a petition against her with the New

Jersey Board of Nursing, alleging that she physically abused a patient,

mistreated a patient, and engaged in conduct unbecoming a public employee,

among other allegations, seeking to have plaintiff's nursing license suspended.

Plaintiff also alleged that defendant denied her adequate preparation for the

disciplinary proceedings, violated an implied contractual right, brought false

charges and misused the disciplinary process, discriminated against her based

on her sex, race, sickle cell trait (SCT), and Nigerian tribal affiliation, and

retaliated against her for her complaints about patient care.

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Plaintiff's claims against individual defendants Kurtiak, Yomb, and

Sunday were administratively dismissed without prejudice for lack of

prosecution. Plaintiff did not move to reinstate those claims. The discovery end

date was December 22, 2019.

On January 21, 2020, defendants Greystone and the State moved for

summary judgment. Defendants argued they were entitled to summary judgment

because: (1) they are not "persons" under N.J.S.A. 10:6-2(c) of NJCRA; (2) they

are immune from liability for intentional torts under the New Jersey Tort Claims

Act, N.J.S.A. 59:1-1 to 12-3; (3) the implied covenant claims were barred under

the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1; (4) the defamation

claims were time-barred by applicable statutes of limitations; (5) there was no

evidence of retaliation or failure to accommodate under the NJLAD; and (6)

plaintiff did not establish racial, disability, and tribal affiliation discrimination.

After reviewing the motion record, viewing the video of the incident , and

considering the submissions of the parties, the trial court issued an April 27,

2020 order and thirty-three-page written decision that granted summary

judgment dismissing all claims against Greystone and the State. The judge

found the following facts "[were] not rationally or reasonably disputable."

Plaintiff "hit or slap[ped] the patient on his left shoulder area." Greystone's

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administrative regulations "communicate clearly that an employee who hits,

strikes, punches, or slaps a patient is subject to termination." "The only

disciplinary remedy is termination." "Plaintiff had received extensive training

in dealing and interacting with patients . . . and . . . she was fully aware that the

disciplinary penalty for striking or slapping a patient is termination, and that

such conduct is not permitted or tolerated." Kurtiak observed plaintiff raise her

hand and hit the patient. Kurtiak pulled plaintiff off the unit, initiated an

investigation, and had plaintiff surrender her access pass and keys.

The judge noted that the surveillance video showed the patient touching

or grabbing plaintiff's buttock area with one hand. "Obviously alarmed by this,

[plaintiff] swiveled, pushed the patient's hand away, raised her arm in the air,

and brought her hand down quickly hitting or slapping the patient on his left

shoulder area one time, and [gave] the wheelchair a push." The judge rejected

plaintiff's claim that she did not make physical contact with the patient and

merely hit the back of the wheelchair.

This appeal followed. Plaintiff raises the following points:

I. THE COURT ERRED IN HOLDING THAT

DEFENDANT GREYSTONE PARK PSYCHIATRIC

HOPSITAL IS PROTECTED BY SOVEREIGN

IMMUNITY.

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A. It is Acknowledged that the State (Not the

Hospital or the Individual Defendants) Is

Immune from Claims Under Common Law for

Intentional Torts. Same Does Not Protect the

State, the Hospital or Individual Defendants from

Constitutional and Statutory Causes of Action.

See Fuchilla v. Layman, 109 N.J. 319 [(1988).]

Misuse and Abuse of Process is a Viable Cause

of Action.

II. THE COURT ERRED IN HOLDING THAT

DEFENDANT SUNDAY AND DEFENDANT

KURTIAK ACTED WITHIN THE BOUNDS OF

THEIR AUTHORITY IN TERMINATING THE

PLAINTIFF.

III. THE COURT ERRED IN HOLDING THAT THE

PLAINTIFF PROVIDED NO LEGAL AUTHORITY

OR FACTUAL BASIS AS TO WHY THE

DEFENDANTS' ACTIONS SHOULD BE VIEWED

AS RETALIATION INSTEAD OF A DISCIPLINARY

ACTION.

A. Greystone's Legitimate Business Reason is

Contrary to Law, Policy, and Case Law.

B. Plaintiff Has Proven Her Case Under NJLAD.

IV. PLAINTIFF HAS PROVEN A CLAIM OF

HOSTILE WORK ENVIRONMENT OF HER

COMPLAINTS ABOUT BEING SEXUALLY

ASSAULTED AND THE HOSPITAL BEING SHORT

STAFFED.

V. THE COURT ERRED IN HOLDING THAT THE

PLAINTIFF DID NOT PROVIDE EVIDENCE OF

CONDUCT TO SUPPORT AN IIED CLAIM.

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VI. THE COURT ERRED IN GRANTING

SUMMARY JUDGMENT DISMISSING COUNT

TWO –– BREACH OF IMPLIED COVENANT OF

GOOD FAITH AND FAIR DEALING AND

VIOLATIONS OF NEW JERSEY'S CONSTITUTION

–– ON SUMMARY JUDGMENT OF THE

PLAINTIFF'S COMPLAINT AS PLAINTIFF HAS

PROVIDED EVIDENCE FOR HER ALLEGATIONS

UNDER COUNT TWO.

A. Plaintiff[']s Implied Covenant Claim Is Not

Barred by the Statute of Contractual Liability

Act.

VII. THE COURT ERRED IN GRANTING

SUMMARY JUDGMENT DISMISSING COUNT

THREE –– OFFICIAL DEPRIVATION ON CIVIL

RIGHTS[,] N.J.S.A. 10:6-2 –– AS PLAINTIFF HAS

PLED SUFFICIENT FACTS TO SUGGEST THAT

SHE WAS DISCRIMINATED BECAUSE OF HER

DISABILITY.

A. Contrary to Defendant's[] Position[,] Plaintiff

Does State Evidence of Sickle Cell Disability

Which Disappeared From Her Records.

VIII. THE COURT ERRED IN GRANTING

SUMMARY JUDGMENT DISMISSING COUNT

FOUR – NJ CONSTITUTION, ARTICLE ONE:

DEFAMATION, LIBEL – AS PLAINTIFF HAS

PROVIDED FACTS TO ESTABLISH THAT

DEFENDANTS MADE FALSE AND

DEFAMATORY STATEMENTS.

IX. THE COURT ERRED IN GRANTING

SUMMARY JUDGMENT DISMISSING COUNT

FIVE – MISUSE AND ABUSE OF PROCESS – AS

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PLAINTIFF HAS PROVIDED FACTS IN SUPPORT

OF PLAINTIFF'S CAUSE OF ACTION.

A. Plaintiff Established a Prima Facie Case of

Wrongful Termination Based Upon Her

Protected Classes of Race, National Origin,

Ethnicity, and National Ancestry and Retaliation

Under N.J.S.A. 10:5-12 (a), (d), (e).

B. Defendant[]s Violated N.J.A.C. 4A:2-2.5[,]

4A:2-2.6 and N.J.S.A. 11A:2-13 Which Resulted

in Defendants Misusing and Abusing the Civil

Service Process to Defendant[']s Detriment.

C. Defendant[]s Abused and Misused the Civil

Service Process to Plaintiff's Detriment.

X. DEFENDANTS ARE NOT ENTITLED TO

SUMMARY JUDGMENT ON ANYTHING.

XI. THE INDIVIDUAL DEFENDANTS ARE STILL

NOT DISMISSED WITH PREJUDICE AND REMAIN

AS VIABLE DEFENDANTS UPON REMAND BY

THIS COURT BACK TO THE LAW DIVISON FOR

TRIAL.

We apply the same standard as the trial court in our review of summary

judgment determinations. Lee v. Brown, 232 N.J. 114, 126 (2018). "Summary

judgment is appropriate 'when no genuine issue of material fact is at issue and

the moving party is entitled to a judgment as a matter of law.'" Ibid. (quoting

Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016)). We conduct

a de novo review of the court's determination of legal issues, Ross v. Lowitz,

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222 N.J. 494, 504 (2015), and "its 'application of legal principles to such factual

findings[.]'" Lee, 232 N.J. at 127 (quoting State v. Nantambu, 221 N.J. 390, 404

(2015)).

Summary judgment shall be granted "if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that 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 matter of law." R.

4:46-2(c). In applying the standard to our review of a summary judgment

determination, we "must view the facts in the light most favorable to the non -

moving party, which in this case is plaintiff." Bauer v. Nesbitt, 198 N.J. 601,

604 n.1 (2009) (citing R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995)).

Having considered the record and applicable legal principles, we affirm

the dismissal of plaintiff's claims on summary judgment. Plaintiff's numerous

arguments lack sufficient merit to individually warrant extended discussion in a

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

In count one, plaintiff alleged Greystone and the State discriminated

against her in violation of the NJLAD. Plaintiff claims that the real reason she

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was terminated was because of her race, sex, tribal affiliation, sex, national

origin and because she has SCT.

"[O]ur courts have adopted the burden-shifting framework articulated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove disparate

treatment under [the NJLAD]." Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14

(2002).

Under that framework, a plaintiff must first prove a

prima facie case of discrimination. Andersen [v. Exxon

Co., U.S.A., 89 N.J. 483, 492 (1982)]. To do so, a

plaintiff must show that he or she (1) belongs to a

protected class; (2) applied for or held a position for

which he or she was objectively qualified; (3) was not

hired or was terminated from that position; and that (4)

the employer sought to, or did fill the position with a

similarly-qualified person. Ibid. The establishment of

a prima facie case gives rise to a presumption of

discrimination. Id. at 493.

Once that threshold has been met, the burden of

going forward shifts to the employer to articulate a

legitimate, non-discriminatory reason for the adverse

employment action. Ibid. After the employer does so,

the burden shifts back to the plaintiff to show that the

employer's proffered reason was merely a pretext for

discrimination. Ibid. To prove pretext, however, 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. Erickson [v. Marsh & McLennan

Co., 117 N.J. 539, 561 (1990)] (holding that an

"employee can be fired for a false cause or no cause at

all. That firing may be unfair, but it is not illegal").

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Thus, under the McDonnell Douglas framework, a

plaintiff retains the ultimate burden of persuasion at all

times; only the burden of production shifts. Andersen,

89 N.J. at 493.

[Viscik, 173 N.J. at 14.]

As to her claim that she was treated disparately because defendants knew

she was afflicted by SCT,2 the trial court noted that when asked if she believed

she was terminated because she had SCT, she responded: "No. Because I do my

job." Nor was she aware if Kurtiak knew plaintiff had sickle cell trait. The trial

court concluded plaintiff offered no evidence in support of her disability

discrimination claim. Plaintiff has not demonstrated any causal link between

her SCT and her disciplinary charges and resulting termination. Her claim of

disability discrimination was properly dismissed.

As to her claim she was discriminated against because of her sex, plaintiff

contended that as a female, she "was entitled not to be sexually harassed and

'felt up' by a male patient." She also alleged that her complaint to defendants

2

SCT is not a disease. Center for Disease Control, What You Should Know

About Sickle Cell Trait, CDC.GOV,

https://www.cdc.gov/ncbddd/sicklecell/documents/SCD%20factsheet_Sickle%

20Cell%20Trait.pdf (last visited Feb. 28, 2022). Unlike the more serious sickle

cell disease, SCT generally causes no symptoms. Ibid. Most people with this

condition have no direct health consequences due to the disorder and lead a

normal life. Ibid.

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about the adverse effect the sexual assault by patient T.S., and defendants'

reaction to it, had on her condition, was to no avail as she was "brought up on

charges and . . . terminated by [d]efendants for [pre]textual reasons." Plaintiff

claims Greystone and its administrators "owed a duty to [p]laintiff to protect her

from such actions instead of punishing [p]laintiff for objecting to such actions.

Plaintiff alleged defendants breached those duties and wrongfully retaliated

against plaintiff by suspending and terminating her.

As to her claim of retaliation due to her complaints to management,

plaintiff was unable to establish a prima facie case. Plaintiff alleges that she

engaged in protected activity by complaining about understaffing at Greystone

and sent a fax to Trenton the day of the incident. She further alleges she engaged

in protected activity by complaining to Yomb about a patient not receiving their

prescribed medication.

To establish a prima facie claim of retaliation under the NJLAD, plaintiff

was required to show: (1) that she engaged in a protected activity; (2) that she

was subjected to an adverse employment action; and (3) a causal link between

the protected activity and the adverse employment action. Battaglia v. United

Parcel Serv., Inc., 214 N.J. 518, 547 (2013) (citing Woods-Pirozzi v. Nabisco

Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)). Other than the fact that she

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was disciplined for physically abusing and mistreating a patient, plaintiff

presented no facts demonstrating a causal link between her termination and her

complaints. Nor did she present any documentary evidence of sending a fax

about staffing levels on the date of the incident. Her retaliation claim was

properly dismissed due to the absence of any evidence of a causal link. As we

explained in Young v. Hobart W. Grp.,

the mere fact than [an] adverse employment action

occurs after [the protected activity] will ordinarily be

insufficient to satisfy the plaintiff's burden of

demonstrating a causal link between the two. Only

where the facts of the particular case are so 'unusually

suggestive of retaliatory motive' may temporal

proximity, on its own, support an inference of

causation. Where the timing alone is not 'unusually

suggestive,' the plaintiff must set forth other evidence

to establish the causal link.

[385 N.J. Super. 448, 467 (App. Div. 2005) (citations

omitted).]

Plaintiff's claim she was treated disparately because of her race was based

entirely on her subjective belief that Kurtiak treated her differently than she

would have treated friends, family members, or peers. When asked to disclose

the factual basis for that claim, plaintiff was unable to provide any evidence of

a link to her race.

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As to her claim that she was treated disparately because of her national

origin or tribal affiliation, plaintiff offered no evidence that Kurtiak knew of her

tribal affiliation. When asked if Sunday treated her differently because of her

tribal affiliation, plaintiff responded: "Not really."

Given this lack of evidence that plaintiff was treated differently because

of her race or that supervisors even knew of her tribal affiliation, plaintiff failed

to satisfy her initial burden. No reasonable jury could find that she was

terminated because of race or tribal affiliation. The trial court properly

dismissed those claims, noting "[b]are allegations, unsupported speculation and

conjecture, without factual support in the record will not sustain a cause of

action under the bright light of a motion for summary judgment." Secondly,

plaintiff produced no evidence that defendants' reasons for terminating her were

pretextual. Plaintiff's physical abuse and mistreatment of patient T.S., which

was captured on video, provided a legitimate basis for removal. Nor has plaintiff

demonstrated that defendants were motivated by discriminatory intent.

In count two of her complaint, plaintiff alleged defendants' policies,

orders, regulations, handbook, and laws "constitute an implied contract and an

economic expectation which has been violated in bad faith by defendants . . . ."

Plaintiff further contended defendants were subject to an implied covenant of

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good faith and fair dealing. She alleged that defendants breached the implied

contract and covenant and invaded her privacy.

Defendants contended N.J.S.A. 59:13-5 bars "recovery against the State

for claims based upon contracts implied in law." In addition, defendants argued

that plaintiff failed to file the notice of contract claim within ninety days of the

accrual of the claim required by N.J.S.A. 59:13-5. Defendants pointed out that

plaintiff only filed a notice of tort claim related to her claims of defamation and

wrongful suspension without pay. The trial court determined that plaintiff's

claims of breach of implied contract and covenant of good faith and fair dealing

were barred under N.J.S.A. 59:13-5. We concur. More fundamentally, plaintiff

has not shown that defendants breached the purported implied contract or the

covenant of good faith and fair dealing by terminating her for physically abusing

a patient by striking him. The termination was in accordance with DHS

regulations and policies, undertaken pursuant to established disciplinary

procedures that provided adequate due process and a right of appeal, proven by

overwhelming evidence, and not pretextual.

In count three, plaintiff alleged deprivation of her civil rights in violation

of NJCRA. She claimed that defendants engaged in sexual harassment, handicap

discrimination, national origin discrimination, and retaliation compared to

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employees outside plaintiff's protected classes, and that this conduct was

pursuant to defendants' customs and policies. The trial court dismissed these

claims, determining that Greystone and the State are immune because they are

not "persons" subject to liability under NJCRA. We agree.

Plaintiff's NJCRA claims against Greystone and the State are barred by

sovereign immunity. The Legislature's intent in enacting NJCRA was "to

provide New Jersey citizens with a state analogue to Section 1983 3 actions."

Perez v. Zagami, LLC, 218 N.J. 202, 215 (2014). "Given their similarity, our

courts apply [Section] 1983 immunity doctrines to arising claims under

[NJCRA]." Brown v. State, 442 N.J. Super. 406, 425 (App. Div. 2015), rev'd on

other grounds, 230 N.J. 84 (2017); see also Gormley v. Wood-El, 218 N.J. 72,

113-15 (2014). Thus, claims under NJCRA are considered in a manner

consistent with Section 1983 jurisprudence.

"[N]either a State nor its officials acting in their official capacities are

'persons' under § 1983." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71

(1989). "Likewise, because the State is not a 'person' under the [NJCRA], it is

equally immune from suits for damages . . . ." Brown, 442 N.J. Super. at 426.

This immunity extends to State agencies and officials acting in their officia l

3

42 U.S.C. § 1983.

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capacities, because they too are not a "person" within the meaning of NJCRA.

C.J. v. Vuinovich, 252 N.J. Super. 122, 131 (App. Div. 1991) (citing Will, 491

U.S. at 60).

State psychiatric hospitals such as Greystone are arms of the State that are

immune from liability under NJCRA. See Weisman v. N.J. Dep't of Hum.

Servs., 817 F. Supp. 2d 456, 464 (D.N.J. 2010) (holding Ancora State

Psychiatric Hospital is not a "person" subject to liability under Section 1983);

DEP v. Gloucester Env't Mgmt. Servs., 923 F. Supp. 651, 660 (D.N.J. 1995)

(holding Ancora State Psychiatric Hospital is an arm of the State for purposes

of sovereign immunity). Indeed, plaintiff's own complaint states that Greystone

"is a State agency of [d]efendant State of New Jersey" and "is owned and

managed by the State of New Jersey as a governmental entity."

Here, Greystone performs a governmental function. It is not separately

incorporated. Greystone is a DHS-operated and managed facility. Its employees

are entitled to Civil Service status. Any judgment for damages entered against

Greystone would be paid from funds of the State Treasury. Greystone is clearly

an arm of the State that is not a "person" within the meaning of Section 1983.

Accordingly, plaintiff's claims under NJCRA were properly dismissed.

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In count four of her complaint, plaintiff alleged defendants brought "false

charges" against her "with the intention of causing [p]laintiff loss of her

employment good will, reputation and right to grieve and complain without fear

of retaliation." She claimed that the false charges "amounted to defamation per

se, libel and slander as [d]efendants knowingly made untrue statements about

her professional competency with reckless and wanton disregard for the

consequences thereof."

The trial court dismissed these defamation claims as time barred. It also

concluded that plaintiff failed to show that defendants made false and

defamatory statements about her in a public setting. Defamation claims are

subject to the one-year statute of limitations imposed by N.J.S.A. 2A:14-3. "A

defamation action must be filed within one year of the publication of an

actionable writing or utterance." Petro-Lubricant Testing Labs, Inc. v. Adelman,

233 N.J. 236, 250 (2018). Similarly, "[c]laims for invasion of privacy based on

placing plaintiff in a false light are subject to the one-year statute of limitations

imposed by N.J.S.A. 2A:14-3." Smith v. Datla, 451 N.J. Super. 82, 94 (App.

Div. 2017) (citing Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108, 122-

23 (App. Div. 2009)). The disciplinary proceedings against plaintiff were

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completed on August 5, 2016. Plaintiff filed her complaint on December 28,

2017. Her defamation and false light claims were clearly time-barred.

In count five of her complaint, plaintiff alleged defendants engaged in

misuse and abuse of process by bringing disciplinary charges against her to

retaliate for complaints that they engaged in unlawful practices. The trial court

found that "[p]laintiff failed to sufficiently plead retaliation or to show that the

[d]efendants' legitimate business reason advanced for the [p]laintiff's

termination was pretextual." The court noted that plaintiff was provided with a

Loudermill hearing, at which plaintiff was represented and "allowed to plead her

case" and argue against termination. The trial court found plaintiff "failed to

offer any evidence" that would establish a prima facie case of abuse or misuse

of process. The court found there was "no evidence that the [p]laintiff was the

target of a plan or scheme to terminate her through manipulation or misuse of

the hearing process." The record amply supports those findings. Count five was

properly dismissed.

The plaintiff in a malicious use of process action must prove that the

original action complained of was brought without probable cause and was

actuated by malice, that it was terminated favorably to the plaintiff, and that

plaintiff suffered a special grievance by the institution of the underlying

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proceeding. LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009). Each element must

be proven for there to be any recovery. Ibid. Absent a dispute as to the material

underlying facts, a determination of probable cause is a question of law. Jobes

v. Evangelista, 369 N.J. Super. 384, 398 (App. Div. 2004). Plaintiff clearly

failed to satisfy these elements and was unable to make out a prima facia case.

The record demonstrates that defendants had probable cause to bring the

removal proceeding. In addition, the removal proceeding was not terminated

favorably to plaintiff. For each of these reasons, plaintiff's claim of abuse of

process fails.

To state a cause of action for malicious abuse of process, plaintiff must

also show that defendants engaged in acts "after issuance of process 'which

represent[ed] the perversion or abuse of the legitimate purposes of that process.'"

Baglini v. Lauletta, 338 N.J. Super. 282, 294 (App. Div. 2001) (quoting Penwag

Prop. Co. v. Landau, 148 N.J. Super. 493, 499 (App. Div. 1977), aff'd, 76 N.J.

595 (1978)). Plaintiff must demonstrate that after commencing process,

defendants pursued that process for an ulterior motive and used the process as

"a means to coerce or oppress[.]" Tedards v. Auty, 232 N.J. Super. 541, 550

(App. Div. 1989). Plaintiff has not demonstrated that such misconduct occurred.

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Plaintiff was initially suspended with pay. She was served with a PNDA

specifying the charges. Plaintiff participated in a Loudermill hearing and was

represented by a union official. She was suspended without pay following that

hearing. At the subsequent departmental hearing, where plaintiff was

represented by a union official and afforded the opportunity to present witnesses

and cross-examine Greystone's witness, the disciplinary charges and removal

were sustained by the hearing officer. Plaintiff was then served with a FNDA

removing her from employment effective February 17, 2016. Plaintiff had the

right to appeal her removal to the Civil Service Commission. N.J.A.C. 4A:2-

2.8. She did not do so. The record belies any claim plaintiff was denied due

process or that Greystone or the State otherwise engaged in malicious abuse of

process.

Finally, we address plaintiff's argument that Greystone violated N.J.S.A.

11A:2-13 and N.J.A.C. 4A:2-2.5(d) by not conducting the departmental hearing

within thirty days of the issuance of the PNDA. In Goodman v. Dep't of

Corrections, the court considered "whether disciplinary charges against a public

employee in the career service must be dismissed if the appointing authority

fails to conduct a departmental hearing within the thirty-day period required by

N.J.S.A. 111:2-13. 367 N.J. Super. 591, 592 (App. Div. 2004). The court held

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"that this requirement is not jurisdictional and that the appointing authority may

proceed with disciplinary charges even if it fails to conduct a departmental

hearing within the statutorily mandated period." Ibid. The court reasoned:

In the absence of an explicit legislative provision

requiring dismissal of disciplinary charges if an

appointing authority fails to conduct a department

hearing within thirty days, we are unwilling to impute

such an intent to the legislature. There is a strong

public interest in allowing an appointing authority to

proceed with disciplinary charges even if it has failed

to conduct a hearing within the legislatively prescribed

period.

[Id. at 594.]

Just as in Goodman, "[t]his case illustrates that public interest." Ibid. Moreover,

plaintiff has not demonstrated that the delay in the hearing prejudiced him.

To the extent we have not specifically addressed any of plaintiff's

remaining arguments, we find them to lack sufficient merit to warrant discussion

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

Affirmed.

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