New Jersey Cases April 19, 2023: Schuster v. State

Case Description

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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.

Argued January 25, 2023

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0180-16.

George T. Daggett argued the cause for appellant.

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Walter F. Kawalec, III, argued the cause for respondents State of New Jersey, Division of State Police of the State of New Jersey, Division of Law and Public Safety, State of New Jersey Department of EEO, State of New Jersey Office of Professional Standards and Colonel Rick Fuentes (Marshall Dennehey Warner Coleman &Goggin, attorneys; Walter F. Kawalec, III, and Leonard C. Leicht, on the brief).

Joan M. Schwab argued the cause for respondent Major Glenn Teryek (Saiber LLC, attorneys; Joan M. Schwab and Amy K. Smith, on the brief).

Before Judges Currier and Enright.

PER CURIAM

Plaintiff Captain Sherri Schuster (Badge No. 5787) appeals from the May 28, 2020 order granting summary judgment to defendant Major Glenn Teryek; the July 24, 2020 order denying reconsideration of the May 28 order; and the October 16, 2020 order granting summary judgment to all defendants. We affirm all challenged orders.

I.

We derive the facts from the motion record, viewing them in a light most favorable to the non-movant plaintiff. Globe Motor Co. v. Igdalev , 225 N.J. 469, 480 (2016) (citing R. 4:46-2(c)). Plaintiff joined the New Jersey State

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Police (NJSP) in 1998. In March 2014, she was promoted to Captain and designated as Bureau Chief of the Fiscal and Grant Management Bureau (F&GMB) in the Administration Section. Plaintiff was the only female Captain in the Administration Section at that time.

Major Teryek was plaintiff's supervisor and Commanding Officer of the Administration Section for nine months, between July 2014 and April 2015. In January 2015, he submitted a memorandum to defendant Colonel Rick Fuentes describing "significant leadership, management, administrative and procedural problems in the F&GMB." That same month, plaintiff contacted the Office of Equal Employment Opportunity (EEO), within defendant New Jersey Department of Law and Public Safety, to file a complaint against Teryek. She claimed Teryek treated her differently than others in her Section and that he engaged in discriminatory conduct against her based on her gender.

The EEO acknowledged receipt of plaintiff's complaint on April 15, 2015. According to plaintiff, a lieutenant informed her at that time, "[e]verybody has been waiting on this." Three days later, Major Teryek was transferred from his position as plaintiff's supervisor to Field Operations and ceased having any supervisory authority over plaintiff. He retained his rank of Major notwithstanding the transfer.

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The EEO met with Teryek in October 2015. During his interview, Teryek claimed he only learned plaintiff filed an EEO complaint against him shortly before he met with the EEO. The EEO also interviewed plaintiff and four other witnesses regarding plaintiff's allegations; plaintiff later relied on statements from two of those witnesses to try to defeat defendants' summary judgment motions.

In January 2016, the EEO notified plaintiff it found "Major Teryek had non-discriminatory reasons to take what he perceived as reasonable corrective measures to resolve . . . issues within F&GMB." Therefore, the EEO found plaintiff's "allegation of gender discrimination [was] not substantiated. "On appeal, the Civil Service Commission affirmed the EEO's finding.

In May 2015, while plaintiff's EEO complaint was still pending, Major Teryek's attorney filed a report with the Office of Attorney General (OAG), alleging plaintiff, along with other male and female State troopers and civilian employees, engaged in improper conduct. Teryek's counsel also reported that some senior officers retaliated against Teryek. Based on this information, the Office of Law Enforcement Professional Standards (OLEPS) commenced an investigation.

When OLEPS interviewed Teryek in June 2015, he implicated plaintiff

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and others. Some of the claims he made against plaintiff included her alleged mismanagement at F&GMB and her purported falsification of records. In July 2015, plaintiff received notice she was considered a principal in OLEPS's investigation. In March 2016, OLEPS concluded its investigation without substantiating Teryek's allegations.

In July 2015, while the OLEPS investigation was pending, plaintiff filed a second EEO complaint. She accused Teryek of making a report to OLEPS in retaliation for her first EEO complaint, alleging this action impeded her ability to be promoted. Plaintiff claimed Teryek must have been aware she filed the first EEO complaint because "nothing is secret in the NJSP." She also alleged he would have been informed there were four unidentified pending EEO complaints against him and he must have concluded one was filed by her. Further, she asserted he "continued to harass" her by repeatedly entering her building and "glaring" at her after his transfer.

The EEO investigated plaintiff's second EEO complaint and determined Teryek was unaware of plaintiff's first EEO complaint when he filed the OAG report. According to the EEO, Teryek only learned about plaintiff's initial EEO complaint in October 2015, shortly before the EEO interviewed him. Therefore, the EEO did not substantiate plaintiff's allegations from her second EEO

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complaint.

In November 2015, April 2016, December 2016, and September 2017, plaintiff applied, and was rejected, for a promotion to the rank of Major. Each time she applied for a promotion, defendant Colonel Rick Fuentes, then the State Police Superintendent, determined who was promoted. Plaintiff later testified during a deposition that she should have been promoted to Major because she believed she would "do a great job in that position."

In June 2016, plaintiff instituted suit against Major Teryek, as well as the State of New Jersey, NJSP, Division of Law and Public Safety, EEO, OLEPS and Colonel Fuentes (collectively, State defendants). In the first count of her amended complaint, she alleged each defendant violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by depriving her of a promotion based on her gender. The second count of the complaint alleged defendants violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14 by retaliating against her for filing EEO complaints and denying her the promotion she sought. Lastly, the third count alleged Teryek individually violated the LAD by retaliating against her for having filed EEO

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complaints against him.

Teryek retired in 2019. In March 2020, he moved for summary judgment. The trial court granted his application on May 28, 2020. In an oral opinion issued that day, the judge found plaintiff's "LAD claim alleging a failure to promote based on gender must fail as a matter of law." He explained:

[a]s to count one, there is no material factual dispute that [Teryek] never had any authority to promote plaintiff to the rank of Major.... He did not have any authority . . . to promote employees to his own rank of Major. Rather, that authority is with the Superintendent of the [N]SP], Colonel Fuentes. There is no evidence . . . the Superintendent sought any input from Teryek about a promotion of plaintiff. And, of course, following Teryek's transfer as of April 18, 2015, he did not even supervise plaintiff or have any authority [over] plaintiff.

Plaintiff's opposition consists of unsubstantiated inferences and allegations about her past promotion history and other officers catching up with her. This is not credible evidence that can defeat a summary judgment motion.

Likewise, the summaries of EEO statements given by two [N]SP] officers . . . named as part of plaintiff's EEO complaint are inadmissible hearsay statements. They are not competent reliable evidence that the court can

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consider for the truth of the matter asserted....

[E]ven if the court were to consider these statements, they would not defeat the summary judgment motion, because there is no evidence that OLEPS impeded a promotion.

Turning to the two remaining counts against Major Teryek, the judge stated:

it is clear that [Teryek] had no knowledge of plaintiff's EEO complaint at the time he raised allegations with OLEPS. He did not have knowledge until October 2015. The only competent evidence demonstrates that the alleged protected activity was not known to [him] at the time he made the OLEPS allegations.

Plaintiff . . . only offers speculation in opposition to this point and it's insufficient to defeat a summary judgment motion. For instance, [plaintiff's] alleging that "nothing is secret" and that "[Teryek] knew about four unidentified EEO complaints" is not competent evidence. The identity of anyone making EEO complaints or the details were never known to [Teryek] when the OLEPS allegations were raised.

Once again, all of the issues raised by plaintiff to oppose the dismissal of counts one, two and three[] are not credible.

In addition, a required element of CEPA and LAD retaliation is to show that the defendant took adverse action. The [OLEPS] investigation itself is not an adverse action, . . . and, as discussed . . ., [Teryek] had no input or authority with respect to plaintiff being promoted.

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Moreover, there is no evidence that [the] OLEPS[] investigation impacted plaintiff's lack of a promotion. The defendant was not even plaintiff's supervisor when she submitted for a promotion on November 18, 20[1]5. There is nothing in the amended complaint alleging a hostile work environment, but . . . the court will address it as well. Taking all the evidence in a light most favorable to the plaintiff, the competent evidence shows that this claim must be dismissed as a matter of law. Plaintiff points to various minor personality and workplace conflicts that even when viewed in their totality, do not rise to the level . . . that . . . a reasonable factfinder . . . could conclude . . . there was a hostile work environment.

Plaintiff moved for reconsideration of the May 28 order and asked the judge to accept certifications from two NJSP officers who were interviewed during the EEO investigations. The judge had declined to consider the officers' statements when rendering his initial decision on Teryek's summary judgment motion, finding they were "inadmissible hearsay." On July 24, 2020, the judge accepted the witnesses' certifications but denied plaintiff's reconsideration motion. In an oral opinion issued that day, the judge stated the EEO interview statements from the two witnesses "do not support plaintiff's claims to get her past summary judgment." He reasoned:

[t]hese statements do not contain any evidence as why the actual decision maker[] at the [N]SP], Colonel Fuentes, did not promote plaintiff from 2015 to 2019, nor does it change the fact that Teryek had no authority to promote plaintiff or had any involvement in the

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decision.

As to [plaintiff's] retaliation claims, those statements do not impact the fact that plaintiff's allegations remain unsupported, [meaning her] claim that Teryek was aware of plaintiff's EEO complaint and filed the OLEPS charges that she claims impacted her promotion....

[T]hese statements don't have any information to dispute that Teryek was transferred in 2015 and had no authority or input into plaintiff's promotion, which did not occur until 2020, five years later ....

In addition, as I previously noted, . . . there was no adverse action by Teryek, as is required for CEPA and LAD retaliation claims.

So, . . . plaintiff's arguments . . . are just based on pure speculation.... [T]here's just no competent evidence that the OLEPS investigation impacted the promotion. Plaintiff's contention that Teryek knew about her EEO complaint because "nothing is secret at the State Police" and "[Teryek] was told generally that there were four EEO complaints pending against him" previously was . . . considered and rejected . . . because there is no evidence that the identities of the four EEO complainants were revealed to Teryek.

The remaining State defendants moved for summary judgment in August 2020. On October 16, 2020, the judge granted their motion. Referring to plaintiff's allegation that superior officers discriminated against and deprived her of a promotion, the judge found plaintiff failed to make out a prima facie case of discrimination and failure to promote because she did not show "others

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who were not members of the protected class, with similar or lesser qualifications than she, achieved the rank or position." He explained plaintiff's

only evidence . . . as to her qualifications versus those of the other candidates was her deposition testimony in which she subjectively believe[d] she could do a good job as Major in charge of the Administrative Section of the [N]SP]. The problem is that conclusory and selfserving assertions are insufficient to overcome a motion for summary judgment....

There is simply no evidence offered that . . . plaintiff held the necessary qualifications to be promoted to Major in . . . place of those who were promoted ahead of her.

....

[P]laintiff was not promoted, based on the evidence that's in the record, because at the time, she was not the best candidate for promotion to the rank of Major. There's no evidence it was based on her gender, that being female. The LAD does allow employers the freedom to make decisions for promotions based on who they think would be the best fit for the identical position.

....

The court . . . also looked at . . . plaintiff's . . . witness statements.... But . . . the court had previously ruled that even if those statements weren't considered inadmissible, . . . [Teryek's] motion . . . would still be granted. Likewise, the court [reaches] the same conclusion here that, even if those statements are admissible . . . the motion with respect to these remaining State defendants would still be granted.

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II

On appeal, plaintiff raises the following overlapping arguments for our consideration: the orders granting summary judgment and denying reconsideration should be reversed; two witnesses supported her claims of LAD discrimination and the trial court erred in failing to give these statements "the importance that they deserved"; the trial court erred in granting summary judgment to any defendants; and the "EEO covered up for Teryek to the detriment of" plaintiff. These arguments are unavailing.

We begin with the well-established principles that guide our analysis. Our review of a ruling on summary judgment is de novo, using the same standard that governs the trial court's decision. RSI Bank v. Providence Mut. Fire Ins. Co. , 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Additionally, we owe no special deference to the motion court's legal analysis or its interpretation of a statute. Ibid. ; Hitesman v. Bridgeway, Inc. , 218 N.J. 8, 26 (2014).

Summary judgment will be granted when "the competent evidential materials submitted by the parties," viewed in the light most favorable to the non-moving party, show that there are no "genuine issues of material fact" and "the moving party is entitled to summary judgment as a matter of law." Grande v. St. Clare's Health Sys.,

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230 N.J. 1, 24 (2017) (quoting Bhagat , 217 N.J. at 38); accord R. 4:46-2(c). "An issue of material fact is 'genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.'" Ibid. (quoting Bhagat , 217 N.J. at 38).

A party does not create a genuine issue of fact simply by offering a sworn statement. Carroll v. N.J. Transit , 366 N.J.Super. 380, 388 (App. Div. 2004). Also, "'conclusory and self-serving assertions' in certifications without explanatory or supporting facts will not defeat a meritorious motion for summary judgment." Hoffman v. Asseenontv.Com, Inc. , 404 N.J.Super. 415, 425-26 (App. Div. 2009) (citations omitted). "[O]nce the moving party presents sufficient evidence in support of the [summary judgment] motion, the opposing party must 'demonstrate by competent evidential material that a genuine issue of fact exists.'" Globe Motor Co. , 225 N.J. at 479-80 (quoting Robbins v. Jersey City , 23 N.J. 229, 241 (1957)). "Competent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Cortez v. Gindhart , 435 N.J.Super. 589, 605 (App. Div. 2014) (quoting Hoffman , 404 N.J.Super. at 425-26).

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In addressing a summary judgment motion, the trial court "must analyze the record in light of the substantive standard and burden of proof that a factfinder would apply in the event that the case were tried." Globe Motor Co. , 225 N.J. at 480 (citations omitted). Accordingly, "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, 217 N.J. at 38.

It also is well settled that a trial court's decision to deny a motion for reconsideration should be upheld on appeal unless the decision was an abuse of discretion. Granata v. Broderick , 446 N.J.Super. 449, 468 (App. Div. 2016). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor , 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. &Naturalization Serv. , 779 F.2d 1260, 1265 (7th Cir. 1985)).

Reconsideration is appropriate in two circumstances: (1) when the court's decision is "based upon a palpably incorrect or irrational basis," or (2) when "it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Cummings v. Bahr , 295 N.J.Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria ,

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242 N.J.Super. 393, 401 (Ch. Div. 1990)). When a litigant is merely dissatisfied with a court's decision, reconsideration is not appropriate; rather, the litigant should pursue an appeal. D'Atria , 242 N.J.Super. at 401.

Next, we observe New Jersey's LAD is remedial legislation designed to root out "the cancer of discrimination." Battaglia v. United Parcel Serv., Inc. , 214 N.J. 518, 546 (2013) (quoting Fuchilla v. Layman , 109 N.J. 319, 334 (1988)). It prohibits unlawful employment practices and discrimination in the form of harassment "based on race, religion, sex, or other protected status, that creates a hostile work environment." Cutler v. Dorn, 196 N.J. 419, 430 (2008) (citing Lehmann v. Toys 'R' Us, Inc. , 132 N.J. 587, 601 (1993)); see also N.J.S.A. 10:5-12(a). LAD also prohibits retaliation against an employee for opposing any act or practice that violates LAD. Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J.Super. 366, 375 (App. Div. 2014); N.J.S.A. 10:5-12(d).

When reviewing LAD claims based on indirect evidence of discrimination, we use the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) and adopted by our Supreme Court in Battaglia . Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 320, 331 (2010). Under that framework,

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(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate nondiscriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application.

[ Ibid. (quoting Dixon v. Rutgers, The State Univ. of N.J. , 110 N.J. 432, 442 (1988)).]

Accordingly, "[t]he first step in the McDonnell [] Douglas methodology requires that the plaintiff establish a prima facie case of discrimination, the elements of which will 'vary depending on the particular employment discrimination claim being made.'" Ibid. (quoting Victor v. State , 203 N.J. 383, 409-10 (2010)). When asserting a claim of

discrimination in . . . placement, the plaintiff may establish a prima facie case by showing:

(1) that she is a member of a class protected by the antidiscrimination law; (2) that she was qualified for the position sought; (3) that she was denied a promotion . . .; and (4) that others having similar or lesser qualifications achieved the rank or position.

[ Ibid. (quoting Dixon , 110 N.J. at 443).]

Next, we recognize CEPA was enacted "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."

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Sauter v. Colts Neck Volunteer Fire Co. No. 2, 451 N.J.Super. 581, 588 (App. Div. 2017) (quoting Mehlman v. Mobil Oil Corp. , 153 N.J. 163, 179 (1998)). "The statute 'seeks to overcome the victimization of employees and to protect those who are especially vulnerable in the workplace from the improper or unlawful exercise of authority by employers.'" Ibid. (quoting Abbamont v. Piscataway Twp. Bd. of Educ. , 138 N.J. 405, 418 (1994)).

Plaintiffs alleging unlawful retaliation under CEPA must prove that:

(1) [they] reasonably believed . . . [their] employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) [they] performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against [them]; and (4) a causal connection exists between the whistleblowing activity and the adverse employment action.

[ Battaglia, 214 N.J. at 556 (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)).]

Notably, investigations alone generally do not rise to the level of adverse employment action. Spinks v. Twp. of Clinton , 402 N.J.Super. 465, 484 (App. Div. 2008).

Guided by these principles, we are persuaded the judge correctly granted summary judgment to defendants. Accordingly, we affirm the May 28, July 24, and October 16, 2020 orders, substantially for the reasons set forth by the judge

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in his thoughtful oral opinions.

In reaching this conclusion, the record supports the judge's conclusion that plaintiff provided no evidence as to the following: Teryek had supervisory authority over her after his transfer in April 2015; Teryek knew about plaintiff's first EEO complaint when he was interviewed by OLEPS; or that the OLEPS investigation - which terminated in 2016 - impeded her ability to be promoted to the rank of Major until 2020.

Additionally, the record supports the judge's findings that: NJSP's then Superintendent, Colonel Fuentes, made the decisions concerning the promotions plaintiff sought; Teryek had no input into those promotion decisions; and "there was no adverse action by Teryek, as is required for CEPA and LAD retaliation claims." Thus, we perceive no basis to disturb the judge's conclusion that "[p]laintiff's opposition consist[ed] of unsubstantiated inferences and allegations about her past promotion history and other officers catching up with her," and "[t]his [was] not credible evidence that c[ould] defeat a summary judgment motion."

In sum, because plaintiff failed to show, with competent evidence, there was a causal link between the disposition of her EEO complaints or Teryek's filing of the OLEPS report and the delay in her receiving a promotion to Major,

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and she also failed to demonstrate any defendant took adverse employment action against her, we cannot conclude the judge erred in granting summary judgment to each defendant. We also decline to determine the judge abused his discretion in denying plaintiff's motion to reconsider the award of summary judgment to Teryek.

Next, plaintiff contends the judge misunderstood the first count of her complaint to include a claim that Major Teryek discriminated against her by failing to promote her, despite that this count alleged defendants' discrimination and retaliation prevented her from being promoted. Again, we disagree.

In count one of her amended complaint, plaintiff asserted she was "systematically discriminated against by superior officers in the [N]SP] so as to deprive her of a promotion." She also alleged "[t]he deprivation of promotion [was] a direct result of a violation of New Jersey's [LAD] by the [N]SP]."

On October 16, 2020, the judge specifically addressed count one of plaintiff's amended complaint during argument on the State defendants' summary judgment motion. After noting he previously granted summary judgment to Teryek and denied plaintiff's motion to reconsider that ruling, the judge stated "the only count against these remaining [State] defendants is count one. And the court is going to grant the[ir] application under the Rule 4:46-2

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standard."

Regarding plaintiff's allegations against the State defendants, the judge found "[t]here is simply no evidence offered that the plaintiff held the necessary qualifications to be promoted to Major in . . . place of those who were promoted ahead of her" and "no evidence" plaintiff's lack of a promotion "was based on her gender." Further, he noted "[t]he LAD does allow employers the freedom to make decisions for promotions based on who they think would be the best fit for the . . . position." Accordingly, a fair reading of the record reflects the judge understood and considered plaintiff's allegations under count one.

Next, we address plaintiff's contention the judge "erred in not giving the statements of the two [witnesses] the importance that they deserved," even though the witnesses "supported her [LAD] claim." In that regard, we note the judge initially deemed the witnesses' statements inadmissible hearsay at the motion hearing, and plaintiff does not appeal from that evidentiary ruling. But the judge also stated in his May 28 decision that "even if the court were to consider these statements, they would not defeat the summary judgment motion, because there is no evidence that [the] OLEPS [investigation] impeded a

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promotion" sought by plaintiff.

On reconsideration, the judge agreed to accept the certifications from the same witnesses, but found they provided no basis to alter his decision on Teryek's summary judgment motion, explaining, "[t]hese statements do not contain any evidence as to why the actual decision maker[]. . ., Colonel Fuentes, did not promote plaintiff from 2015 to 2019." Further, the judge found the witnesses' statements did not "change the fact that Teryek had no authority to promote plaintiff or had any involvement in the decision. "Subsequently, in his October 16 decision, the judge announced he reached "the same conclusion" about the witnesses' statements, and found they offered no basis to defeat the State defendants' summary judgment motion.

Having reviewed the record, it is apparent EEO interviewed the two witnesses at issue to investigate plaintiff's complaints against Teryek. But neither witness had any involvement in any promotion decisions pertaining to plaintiff. Additionally, neither officer addressed whether Teryek knew of plaintiff's EEO complaint by the time the OLEPS investigation was undertaken. We are persuaded the judge fully considered the witnesses' statements before finding they established no causal connection between plaintiff's EEO complaints or the OLEPS investigation and her lack of a promotion to Major

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until 2020.

To the extent we have not addressed plaintiff's remaining arguments, including her contention the "EEO covered up for Teryek" to her detriment, we find they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.