Opinion
Civil No. 99-3370 (JBS)
November 12, 2003
Linda Wong, Esquire, Wong Fleming, PC, Princeton, NJ, for Plaintiff Teresa Downey
Daniel Fleming, Esquire, Wong Fleming, PC, Princeton, NJ, for Plaintiff Teresa Downey
Lawrence Fox, Esquire, Wong Fleming, PC, Princeton, NJ, for Plaintiff Teresa Downey
Lisa S. Grosskreutz, Esquire, Parker McKay Criscuolo, P.C., Marlton, NJ, for Defendant Coalition Against Rape and Abuse, Inc.
Susanna J. Morris, Esquire, Budd, Larner, Gross, Rosenbaum, Greenberg Sade, PC, Cherry Hill, NJ, for Defendants Cape May County, Cape May County Board of Chosen Freeholders, Cape May County Office of the Prosecutor, and Stephen D. Moore
Frank L. Corrado, Esquire, Rossi, Barry, Corrado, Grassi Radell PC, Wildwood, NJ, for Defendants The Herald Newspapers and Joseph R. Zelnik
Peter C. Harvey, Meryl G. Nadler, DAG, Diane M. Lamb, DAG, Trenton, NJ, for Defendant Raymond Batten
OPINION
INTRODUCTION
This matter comes before the Court upon motion by Defendants Cape May County, Cape May County Board of Chosen Freeholders, and Cape May County Office of the Prosecutor (hereinafter "County defendants") for summary judgment, Defendant The Coalition Against Rape and Abuse, Inc.'s (hereinafter "CARA") summary judgment motion, and Defendant Raymond Batten's motion for summary judgment.
For the reasons discussed in this Opinion, the County Defendants' motion for summary judgment will be granted. In addition, Defendant CARA's motion for summary judgment will be granted in part and denied in part, and Defendant Raymond Batten's motion for summary judgment will be granted.
I. BACKGROUND
A. Procedural History
The facts of this case are well-known to the parties. The facts pertinent to the motions now before the Court are given here. Plaintiff Teresa Downey filed a complaint in this Court on July 14, 1999, for events relating to her termination as Executive Director of the Coalition Against Rape and Abuse, Inc. ("CARA"). (Compl.) Plaintiff is a former Executive Director of CARA, a nonprofit, publicly funded agency that counsels victims of sexual abuse and domestic violence. Plaintiff alleged violations of the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq. (Count I), intentional interference with contract (Count II), violation of her federal constitutional rights under 42 U.S.C. § 1983 (Count III), defamation (Count IV), breach of contract (Count V), breach of the implied covenant of good faith and fair dealing (Count VI), and a violation of the New Jersey Law Against Discrimination ("NJLAD") against her employer Coalition Against Rape and Abuse ("CARA") (Count VII), and aiding and abetting under the NJLAD against the other defendants (Count VIII). (Compl. 7/14/99.) In an Order and Opinion dated August 7, 2000, the Court dismissed Count IV (defamation) of the Complaint with prejudice except for events after July 14, 1999, and held that Plaintiff failed to state actionable claims in Counts II, III, VII and VIII, dismissing these remaining counts without prejudice to move for leave to file an amended complaint. (Opinion, 8/7/00.) Because the federal claim in Count III constituted the sole basis for this Court's jurisdiction, the Court dismissed the remainder of Plaintiff's complaint without prejudice. (Id.) After Plaintiff moved for leave to file an amended complaint, the Court granted Plaintiff's motion, re-opened the case, ordered Plaintiff to file the proposed Amended Complaint within 7 days, and further ordered that Plaintiff's allegation that Defendant CARA is a quasi-governmental entity be stricken from the Amended Complaint, and that Defendants Stephen Moore and Judge Raymond Batten are immune from Plaintiff's §§ 1983 (Count III) and 1985 (Count X) claims, thus dismissing Plaintiff's Counts III and X as to defendants Moore and Batten. (Opinion, 5/2/01.) Plaintiff filed an Amended Complaint on May 9, 2001, which added claims for civil conspiracy (Count IX), and conspiracy under 42 U.S.C. § 1985 (Count X). (Amended Compl.) Despite the Court's Opinion and Order of May 2, 2001, Plaintiff in the filed Amended Complaint asserted Count III and X against Defendants Batten and Moore. (Amended Compl. ¶¶ 78-83, 106-112.) A voluntary stipulation of dismissal was filed August 6, 2001, dismissing Plaintiff's claims against Raymond Batten in Counts III and X of the Amended Complaint. (Stipulation, 8/6/01.) A stipulation of dismissal was also filed on September 11, 2001, dismissing Plaintiff's claims in Counts III and IX against Defendant Stephen Moore. (Stipulation, 9/11/01.) A stipulation of dismissal was also filed on September 17, 2001, as to Plaintiff's claims for intentional interference with contract (Count II), defamation (Count IV) and civil conspiracy (Count IX) of the Amended Complaint against Defendants Board of Chosen Freeholders, County of Cape May, and the Office of the Prosecutor. (Stipulation, 9/17/01.) By Opinion and Order filed March 27, 2002, the Court granted Defendant Batten's motion to dismiss Plaintiff's claims in Counts II, IV, and IX against him. (Opinion, 3/27/02.)
The Cape May Defendants filed their motion to bar expert testimony of Dr. Eugene Borgida on gender stereotyping on January 16, 2003. Defendants CARA, Joseph R. Zelnik, The Herald Newspaper, and Judge Batten joined in the Cape May Defendants' motion to bar this testimony by letter dated February 10, 2003. In addition, The Herald Newspaper and Zelnik filed their motions in limine to exclude the report and testimony of Plaintiff's expert Russell Frank on January 6, 2003. Defendants Zelnik and The Herald Newspaper filed their motion for summary judgment on January 27, 2003. Defendant Stephen Moore filed his motion for summary judgment on January 29, 2003. By Opinion and Order filed September 17, 2003, the Court excluded the reports and testimony of experts Frank and Borgida, and granted Zelnik's, The Herald's, and Moore's motions for summary judgment. (Opinion, 9/17/03.)
The County Defendants filed their motion for summary judgment on June 12, 2003. Defendants CARA and Batten filed their motions for summary judgment on June 16, 2003. This Court heard oral argument on these motions on October 14, 2003.
B. Allegations Specific to the County Defendants' Motion
Plaintiff contends that as a result of the criticisms she made against law enforcement and the courts in the Grant Application, as well as the statements she made in earlier years in connection with the Susan Negersmith matter, the County of Cape May engaged in a conspiracy with the other Defendants in this matter to have her removed from her position as Executive Director of CARA. (Plaintiff's Amended Complaint at ¶¶ 26 and 30). The County carried out its part in this conspiracy, according to Plaintiff, through statements made by specific Freeholders, and statements made by two employees of the County, Patricia Devaney, the head of the Department of Human Services for the County of Cape May, and County Counsel Kyran Connor, who subsequently became a Judge of the Superior Court.
The County Defendants' participation in this conspiracy, according to Plaintiff, consisted of the following: contacting the Division of Youth and Family Services ("DYFS") and questioning Plaintiff's credentials and ability to run CARA; making statements to the newspapers critical of the allegations contained in the Grant Application, as well as critical of Plaintiff's ability to run CARA; denying CARA's application for funding made in response to the County's Request for Proposals; and attempting to coerce the CARA Board into terminating Plaintiff by refusing to meet with the CARA Board, requesting that the CARA Board fire Plaintiff, having Kyran Connor attend Domestic Violence Working Group meetings, making false statements regarding the status of lease negotiations between CARA and the County, and threatening to evict CARA from the County owned building that CARA was using as its base of operations.
1. Contact with Patricia Peterson of DYFS
Since CARA's inception, the County has provided monetary and in-kind support to the agency. As of 1997, the CARA shelter and offices were in a County building for which CARA paid no rent, and for which the County provided services, maintenance and utilities. (Gerald Thornton's deposition at p. 224, lines 14-18). On April 28, 1997, the long-time Executive Director of CARA, Jade Deignan, resigned, and the CARA Board appointed Plaintiff as Acting Executive Director. The suddenness in the change of Executive Directors at CARA caused concern to the County. Freeholder Thornton, who at the time was the liaison freeholder for Human Services, became particularly concerned and, due to the suddenness of the change, requested that Ms. Devaney — the head of the County's Department of Human Services — contact DYFS in an effort to find out from them whether they were concerned about CARA's viability. (See Gerald Thornton deposition, p. 60, lines 15-25; p. 61, lines 1-6). Freeholder Thornton also expressed to Ms. Devaney concerns he had regarding Plaintiff's credentials to run CARA. Specifically, he was concerned that she did not have any counseling experience, and that the previous Executive Director had, as part of her work at CARA, been a counselor. Thornton also expressed concern because of Plaintiff's prior relationship with the Freeholders on the Negersmith case. (See Patricia Devaney's deposition at p. 11, lines 20-25; p. 12, lines 1-4).
After having this conversation with Freeholder Thornton, Ms. Devaney first contacted CARA, and then DYFS, in an effort to determine why there was this sudden change in the executive directorship of the agency. Ms. Devaney claims that she was seeking this information so that the County would know if the cause for the change was due to any impropriety. Ms. Devaney spoke with three individuals at CARA, including Plaintiff, and was told that CARA would use a more open process in their effort to find a permanent Director. (Patricia Devaney deposition, p. 36, lines 6-17).
Ms. Devaney then called Patricia Peterson of DYFS and urged the office to encourage the CARA Board to advertise the permanent Executive Director position. Peterson advised Ms. Devaney that it was a CARA Board decision as to whom to select as the Executive Director. (Patricia Devaney deposition, p. 19, lines 15-25). Despite Ms. Devaney's calls, CARA did not advertise for the position. It appointed Plaintiff as the permanent Executive Director in June of 1997. (Patricia Devaney deposition, p. 36, lines 20-23).
2. The County Board of Chosen Freeholders' Proposal Request
The County made available funding in the amount of $2,575 for programs or services related to the prevention of child abuse and missing children. The Human Services Department solicited proposals for this grant, and CARA submitted such a proposal. (See County of Cape May Board of Chosen Freeholders' Request for Proposals — Def. Exhibit I.) A staff member from Ms. Devaney's office reviewed the submitted applications, and Ms. Devaney sat on the program review committee, along with Judy Kunec, Ernie Campbell and Defendant Stephen Moore. The members of the committee questioned Plaintiff regarding how CARA intended to use the proposed funds, and advised her that her proposal to use approximately one fifth of the allotted monies for staff training was not acceptable. Plaintiff was advised by the committee on September 15, 1997, and by subsequent memos, that in order to receive the monies requested, she would need to revise her application. (Memorandum of Patricia Devaney, dated September 15, 1997 — Def. Exhibit J.) Plaintiff was advised that the committee needed this information by September 22, and if they did not receive it by then, they would assume that CARA was no longer interested in obtaining the funding.
Neither Plaintiff nor CARA responded to the September 15, 1997, memo, and because the committee had to award the money by December 31, 1997, a second Request for Proposal was issued. This second request was sent to CARA and other interested social service agencies. (Patricia Devaney deposition, p. 67, lines 5-12). CARA did not respond to this second request.
3. Statements Made to the Press
During Plaintiff's tenure as Executive Director of CARA, Freeholder Thornton, Freeholder Sheets, and Patricia Devaney were all quoted in either The Herald and/or the Press of Atlantic City at various times, commenting on Plaintiff or the Grant Application. (See The Herald, July 16, 1997; The Press, Atlantic City, August 8, 1997; The Herald, October 1, 1997.)
4. Plaintiff's Refusal to Meet with the CARA Board
After the Grant Application became public knowledge through the coverage of The Herald, Freeholder Thornton wrote to Kristin Hamann, President of CARA, under cover of letter dated July 10, 1997. Freeholder Thornton's letter expressed concern over the sudden resignation of CARA's former Executive Director, the language used in the Grant Application, and also advised Ms. Hamann that his, and the Human Services Department's, silence on the Grant Application issue, should not be "interpreted as condoning agreement with CARA, only a `wait and see' posture." (See Freeholder Thornton's July 10, 1997 correspondence — Def. Exhibit N.) In this letter, Freeholder Thornton also declined Ms. Hamann's invitation to meet with the CARA Board at that time, and advised her that he wanted to first meet with the members of the Board of Freeholders to get their input before meeting with the CARA Board. (Id.)
5. Request that the CARA Board Fire Plaintiff
On November 19, 1997, the CARA Board met with Freeholder Thornton, Patricia Devaney and Kyran Connor. The CARA Board requested this meeting in an effort to improve relations with the County and to discuss how to move that relationship forward. (Eileen Fausey deposition, p. 272, lines 8-13). Ms. Devaney claims that there was discussion at this meeting about CARA's request for a twenty-year lease from the County, and the $175,000 contribution the County had pledged to CARA for the renovations to their shelter, as well as a hope that CARA would reconcile with the law enforcement and judicial communities following the controversy surrounding the Grant Application. (Patricia Devaney deposition, p. 127, lines 18-25; p. 128, lines 1-6). Plaintiff however contends that the CARA Board was told by either Freeholder Thornton, Ms. Devaney, or Mr. Connor that the County wanted Plaintiff removed as Executive Director of CARA. (Theresa Downey deposition, p. 448, lines 14-25; p. 449, lines 1-25). Defendants dispute the fact that any of the three County representatives present as this meeting demanded that CARA fire Plaintiff.
6. Alleged Intimidation by Kyran Connor's Presence
Plaintiff contends that Mr. Connor's presence at three Domestic Violence Working Group meetings was in furtherance of the conspiracy to have her removed as Executive Director of CARA. Plaintiff states that she believes Mr. Connor's presence was intended to intimidate her. (Theresa Downey deposition, p. 482, lines 18-25; p. 483, lines 1-8). Mr. Connor contends that he attended these meetings at the invitation of Judge Batten, Chairman of the Working Group. (See Kyran Connor deposition, p. 57, lines 1-10). It is not disputed that Mr. Connor, as County Counsel, attended such meetings since the County was CARA's landlord and principal funding source regarding services to County residents.
7. Lease Negotiations Between CARA and the County
In 1996, the County made a commitment to CARA to provide it with $175,000 for the refurbishing of its shelter, which was a County owned building. (Letter from Diane Rudolph, Clerk/Administrator for the County, to Jade Deignan, dated August 22, 1996 — Def. Exhibit S). In addition to the County's promise of $175,000, CARA also received a commitment from DYFS in the amount of $300,000. If CARA chose to continue to use the County's buildings, DYFS required that the parties enter into a lease agreement. (Theresa Downey deposition, p. 1155, lines 20-21). During the tenure of Plaintiff's predecessor — Jade Deignan — as Executive Director, CARA decided it would remain in the County building, and use the County and DYFS funding to refurbish the building.
Discussions on the lease agreement began as early as 1995, and continued through 1996, between then-County Counsel Connor and Ms. Deignan. In addition to requesting that CARA provide the County with a legal description of the actual parcel of land they wanted to use as the shelter, the County also needed to know the terms and conditions of the State's funding for the project. (Kyran Connor's letter to Terry Golda, dated May 15, 1996 — Def. Exhibit U). Since Connor never received the requested information from either CARA or the State, a lease was never prepared.
After Ms. Deignan was replaced as Executive Director, the subject of lease negotiations between CARA and the County was not revisited until the November 19, 1997 meeting between the CARA Board, Freeholder Thornton, Ms. Devaney and County Counsel Connor. At this time, Mr. Connor set forth the County's various concerns about entering into a long term lease agreement with CARA, particularly given CARA's effective termination of any interaction with the County's law enforcement community and judicial branch of government. (Def. Exhibit V). Connor's concerns, however, had little if any effect on CARA's plans for the shelter because CARA had decided to move out of the County building long before it received the letter. CARA stated that it planned to move because the building had flooding problems, which could not be remedied. (Theresa Downey deposition, p. 1186, lines 16-25; p. 1187-88, lines 1-12). Throughout this period, it was the County's understanding that CARA intended to move. During discussions with Freeholder Thornton, Plaintiff communicated that she was under the impression that the County would be pledging $200,000. (Id., p. 1229, lines 22-25; p. 1230, lines 1-23). Thornton, however, corrected Plaintiff, stating that the County's commitment was always $175,000. (Gerald Thornton deposition, p. 239, line 25; p. 240, lines 1-25; p. 241, lines 1-17).
At no time, up to and including this June 4, 1998 meeting, had anyone from CARA ever requested the release of the $175,000 funding the County had pledged to CARA. Nonetheless, the County continued to maintain its commitment of $175,000 to CARA. (Gerald Thornton deposition, p. 191, lines 19-20). The fact that CARA was moving out of the County's building did not impact this commitment. At no time during Plaintiff's tenure with CARA, did Plaintiff or anyone else from CARA ever request the release of the $175,000 that the County had committed to CARA.
8. Alleged Threat to Evict CARA
Plaintiff contends that the County threatened to evict CARA from the County's building. Plaintiff further alleges that CARA was concerned that they were going to be evicted and this resulted in pressure to fire her. (Theresa Downey deposition, p. 1214, lines 11-24).
C. Allegations Specific to Defendant CARA's Motion
Plaintiff's ten-count Amended Complaint contains five counts directed at CARA. The First Count alleges violation of the Conscientious Employee Protection Act. The Fifth Count alleges breach of contract of employment between Plaintiff and CARA. The Sixth Count alleges breach of a duty of good faith and fair dealing associated with Plaintiff's contract of employment with CARA. The Seventh Count alleges violation of New Jersey's Law Against Discrimination. The Ninth Count alleges a civil conspiracy under state common law among CARA and its co-Defendants.
D. Allegations Specific to Defendant Batten's Motion
On May 2, 2001, this Court dismissed Counts Three and Ten of Plaintiff's Amended Complaint under §§ 1983 and 1985 as to Judge Batten and Stephen Moore based on qualified immunity. Judge Batten then moved to dismiss Counts II, IV, and IX of the Amended Complaint based on Plaintiff's failure to file a Tort Claims Notice. See footnote 1 This Court granted Judge Batten's motion on March 27, 2002. Subsequently, Plaintiff filed a Motion to Reconsider this Court's March 27, 2002 Order. The Court denied Plaintiff's motion pursuant to an Order dated December 24, 2002.
Count II was intentional interference with contractual relations; Count IV was defamation; and Count IX was civil conspiracy.
Count VIII is the only remaining claim pertaining to Judge Batten. Specifically, Count VIII alleges that Judge Batten "aided and abetted the doing of acts unlawful under New Jersey's Law Against Discrimination." (Complaint at ¶¶ 95 96.)
II. DISCUSSION
A. Standard of Review for Summary Judgment
Under Fed.R.Civ.P. 56(c), "[s]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Upon the moving party's discharge of its burden, a non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Ind. Co. v. Zenith Corp., 475 U.S. 574, 587 (1986) (citations omitted). However, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586.
B. Plaintiff's Claims Against The County Defendants
1. Count III — Claims Under 42 U.S.C. § 1983
a. Municipal Liability
Plaintiff has repeatedly argued that the County, in concert with the other defendants, conspired to have CARA fire her in retaliation for the statements she made in the Grant Application. "[S]ection 1983 liability attaches to a municipality only when `execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, reflects the injury.'"Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990),citing Monell v. Dept. of Social Services, 98 S.Ct. 2018, 1037 (1978). "Policy is made when a `decisionmaker possessing final authority to establish municipal policy with respect to the action' issues an official proclamation, policy or edict." Id., citing Pembaur v. City of Cincinnati, 106 S.Ct. 1292, 1299 (1986).
However, "proof of mere existence of an unlawful policy or custom is not enough to maintain a § 1983 action. The plaintiff bears the additional burden of proving that the municipal practice was a proximate cause of the injury suffered." Bielevicz v. Dubinson, 915 F.2d 845, 850 (3d Cir. 1990) (citations omitted); Mody v. City of Hoboken, 750 F. Supp. 1027, 1030 (D.N.J. 1990), aff'd 959 F.2d 461 (3d Cir. 1992) ("Plaintiff must identify the challenged policy attributed to the city itself and show a causal link between the execution of the policy and the injury suffered").
Here, Plaintiff has failed to show that a decisionmaker possessing final authority to establish County policy issued a directive or policy that was unlawful, and that caused her alleged civil rights violation. The record reflects only that the County expressed its reservations about entering into a 20-year lease with CARA, when CARA's ability to interact with the courts and law enforcement community were severely compromised by Plaintiff's actions and statements, particularly by the allegations made public from Plaintiff's Grant Application. Such a position cannot be said to constitute an official unlawful policy.
Plaintiff, however, asserts that it is not necessary to show that a decisionmaker possessing final authority to establish County policy issued an official proclamation or policy that was unlawful, causing her civil rights violation. Plaintiff argues instead that the actions taken by the Defendants were the result of an informal policy, discussed and acted upon by the Office of the Prosecutor, the Freeholders, and other officials of Cape May County and the judiciary. From these facts, Plaintiff claims, a reasonable jury could conclude that the termination came without all the process Ms. Downey was due.
b. First and Fourteenth Amendment Claims
Plaintiff alleges that her rights under the First and Fourteenth Amendments were violated by the actions of the County. In order to establish a violation of either right, Plaintiff must show that the alleged deprivation was the result of some government action.
(1) First Amendment Claim
This Court held in Downey v. Coalition Against Rape and Abuse, 143 F. Supp.2d 423, 443 (D.N.J. 2001), that in order to establish her First Amendment claim, Plaintiff need not show a protectable property interest in her employment. Plaintiff does, however, have to produce "enough evidence to create a triable issue that the reason she was fired was not because of CARA's dissatisfaction with her performance, but rather that she was fired because of the pressure brought to bear on CARA by local government officials who wanted to silence her from further criticizing Cape May County and the manner in which it dealt with victims of domestic violence." Downey at 444.
Plaintiff must prove that her speech was protected by the First Amendment, and that it was a substantial factor in the cause of her termination. Under the test articulated in Connick v. Myers, 461 U.S. 138 (1983), the First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of pubic concern. This Court previously held, "If these cases did not involve a matter of public concern, then [Plaintiff] cannot realistically assert a First Amendment retaliation claim. The First Amendment does not isolate a private speaker from negative consequences of her speech if her remarks are poorly received." Downey at 445.
Plaintiff concedes that she is a private person and the issues surrounding her First Amendment claim were public issues. In so doing, Plaintiff avails herself of the protection of the First Amendment. Plaintiff claims that she was fired because of the pressure placed on CARA by the County as a direct result of her statements critical of the County — in essence, that she was retaliated against for exercising her First Amendment rights.
Here, the alleged improper conduct on the part of the County Defendants took the form of speech-alleged conversations with and threats to CARA of loss of funding, referrals and a lease, if CARA did not terminate Downey. However, in Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000), the Fourth Circuit held that "where a public official's alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation, intimating that punishment, sanction or adverse regulatory action will follow, such speech does not adversely affect a citizen's First Amendment rights even if defamatory." The Third Circuit has held similarly in McLaughlin v. Watson, 271 F.3d 566, 573 (3d Cir. 2001):
When a public official is sued for allegedly causing a third party to take some type of adverse action against plaintiff's speech, we have held that defendant's conduct must be of a particularly virulent character. It is not enough that defendant speaks critically of plaintiff or even that defendant directly urges or influences the third party to take adverse action. Rather, defendant must "threaten" or "coerce" the third party to act.
In this case, Plaintiff has been unable to show any form of conduct attributable to the County that would constitute a threat to CARA or an attempt to coerce CARA into firing her. Indeed, the record after years of discovery is void of any evidence of influence the County exerted over CARA in its internal personnel decisions. As a result, Plaintiff's First Amendment claim must fail, and judgment will be entered for the County Defendants upon Plaintiff's First Amendment claim.
(2) Fourteenth Amendment Claim
Plaintiff has also alleged a due process and an equal protection claim under the Fourteenth Amendment. However, since this Court in its February 21, 2003 Opinion held that under the particular circumstances of this case, in which no defendant urged Ms. Downey's termination because she was "not feminine enough" or because she was "too feminine," "gender stereotyping is not a cause of action under § 1983," as it does not constitute an equal protection claim, Plaintiff is left solely with a due process claim. Opinion at 26. In order to establish her due process claim, Plaintiff must show that she was deprived of a protected interest in property, that the deprivation occurred as a result of government action, and that the deprivation was without due process. Downey at 441.
Defendants argue that because Plaintiff was an at-will employee, she had no reasonable expectation under New Jersey law of continued employment with CARA. Plaintiff claims a property interest in her continued employment at CARA — that she had a reasonable expectation of continued employment and a protected interest as a result of CARA's written employment policy that provided for progressive discipline prior to termination. Plaintiff alleges that CARA terminated her without notice or an opportunity for a hearing. It is not at all clear to this Court that Downey had, under the adopted employment policy, any interest in continued employment with CARA or that CARA had an obligation to meet certain requirements before it could terminate Plaintiff.
Assuming, however, that Plaintiff could establish a protected interest in her employment at CARA, she would still be required to show that the deprivation was the result of some intentional government action. Plaintiff must show that public officials deprived her of due process by teaming up with the CARA Board with the intention that she be terminated from her position. The record, however, holds no such evidence; instead, it is clear that CARA fired Plaintiff for insubordination. Downey was fired because the CARA Board had legitimate concerns about her performance and about agency morale, and because of her refusal to meet with the Personnel Committee of the CARA Board and discuss staff unrest. The record suggests that the Board's decision to terminate Plaintiff was made as a result of Plaintiff's interaction with the Board, and not, as Plaintiff would assert, of any interaction the Board had with the County. Plaintiff's hunches, suspicions, or surmises to the contrary do not suffice to create a genuine issue of material fact. Thus, Plaintiff is unable to establish a viable Fourteenth Amendment claim.
2. Count X — Claims Under 42 U.S.C. § 1985
While a § 1985 claim does not include a requirement that conspirators act "under color of state law," the claim must be based "on an alleged violation of plaintiff's federal equal protection rights." Downey at 446. Plaintiff's equal protection claim is based on gender stereotyping but because this Court has ruled that Plaintiff's gender stereotyping claim is not viable, Plaintiff's § 1985 claim must be dismissed. There is simply no evidence from which a reasonable factfinder could conclude that the purpose of this alleged conspiracy was to deprive Plaintiff of her employment based upon her gender.
3. Count IV — Defamation Claim
Consistent with New Jersey law, Plaintiff's defamation claim has been limited by this Court to publications after July 14, 1998. Plaintiff claims that the County participated in harassment and discriminatory conduct towards Ms. Downey through various contacts and conversations with her and members of CARA at meetings and in private, and through various statements to the press, the judiciary, and DYFS.
As the New Jersey Supreme Court has stated, the threshold inquiry in a defamation or slander suit is "`whether the language used is reasonably susceptible of a defamatory meaning.'" Ward v. Zelikovsky, 136 N.J. 516, 528 (1994) (quoting Kotlikoff v. The Community News, 89 N.J. 62, 67 (1982)); Karnell v. Campbell, 206 N.J. Super. 81, 88 (App.Div. 1985) (quoting Kotlikoff, 89 N.J. at 67). Whether the meaning of a statement is susceptible of a defamatory meaning is a question of law for the court to resolve. Ward, 136 N.J. at 529 (citing Kotlikoff, 89 N.J. at 67). Whether a statement is defamatory depends on its content, verifiability, and context. See footnote 2 Lynch v. New Jersey Educ. Ass'n, 161 N.J. 152, 167 (1999) (citing Ward, 136 N.J. at 529). If the language is capable of both a defamatory and nondefamatory meaning, there exists a question of fact for the jury to decide. Karnell, 206 N.J. Super. at 88 (citation omitted).
Evaluation of content involves consideration of a statement's literal meaning, and also of the fair and natural meaning that reasonable people of ordinary intelligence would give to it. Lynch , 161 N.J. at 167 (citing Ward , 136 N.J. at 529). A statement's verifiability refers to whether it can be proved true or false. Lynch , 161 N.J. at 167. Statements of opinion, which reflect a state of mind, generally cannot be proved true or false. Id .
A defamatory statement is one that is "injurious to the reputation of another" or exposes him to "hatred, contempt or ridicule." Leers v. Green, 24 N.J. 239, 251 (1957). Words that subject a person to ridicule, hatred, or contempt, or that make a criminal accusation or imply that a plaintiff stole property, for example, are defamatory on their face.Karnell, 206 N.J. Super. at 89. While expressions of opinion are actionable if they imply the existence of undisclosed defamatory facts on which the opinion was based, "pure" expressions of opinion on public concern are not actionable. Id. (citing Kotlikoff, 89 N.J. at 68-69). As the Third Circuit stated, "[t]he principle making expressions of pure opinion non-actionable is grounded on the first amendment precept that ideas themselves cannot be false." Dunn v. Gannett New York Newspapers, Inc., 833 F.2d 446, 453 (3d Cir. 1987) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40). Thus, an opinion is actionable "only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." Dunn, 833 F.2d at 453 (quoting Restatement (Second) of Torts § 566 (1977)). Furthermore, an opinion that provides the underlying nondefamatory factual basis is not actionable, as the New Jersey Supreme Court in Kotlikoff noted:
Where an opinion is accompanied by its underlying nondefamatory factual basis, . . . a defamation action premised upon that opinion will fail, no matter how unjustified, unreasonable or derogatory the opinion might be. This is so because readers can interpret the factual statements and decide for themselves whether the writer's opinion was justified.89 N.J. at 72-73. See e.g., Rinaldi v. Holt, Rinehart Winston, Inc., 42 N.Y.2d 369 (1977), cert. denied, 434 U.S. 868 (1977) (statement based on specific disclosed examples that plaintiff judge was "incompetent" was constitutionally protected; statements based on implication of facts that judge was "probably corrupt" and "suspiciously lenient" not protected). Whether a statement is pure "opinion" or "fact" is a question of law, which the court must determine, considering the publication in its totality, and examining all the words used, along with the content and circumstances. See footnote 3 Dunn, 833 F.2d at 453 (citations omitted). Plaintiff cites to statements made by Prosecutor Stephen Moore in an article published by The Herald on October 1, 1997; Moore's July 23, 1998 letter to Gail Faile; and statements made by Moore in articles published by The Herald on August 5, October 14, and November 25, 1998, as well as articles dated August 18 and July 24, 1999. However, as this Court held in granting Defendants Zelnik and The Herald Newspapers' motion for summary judgment on September 17, 2003, nothing contained in these documents can be construed as defamatory towards Plaintiff. In that Opinion, this Court held that "Considering the content, context, and verifiability, the statements in the article are incapable of having a defamatory meaning. The article as a whole cannot reasonably be interpreted by reasonable people of ordinary intelligence as being so injurious to plaintiff's reputation as to charge plaintiff with a crime, not can it be viewed as subjecting plaintiff to ridicule, hatred, or contempt." September 17, 2003 Opinion at p. 66.
A "mixed" statement, on the other hand, is one that "while an opinion in form or context, is apparently based on facts about plaintiff or his conduct that have neither been stated by the defendant nor assumed to exist by the parties to the communication." Kotlikoff , 89 N.J. at 69.
Furthermore, despite the fact that Plaintiff argues that she is a private figure, the statements giving rise to allegations of defamation involve a matter of the public interest. This Court acknowledged the public concern in its Opinion of September 17, 2003: "At most, the statement is vigorous criticism concerning the public controversy provoked by plaintiff's grant application and concomitant behavior, and her employer's reactions to it, not `false facts,' as plaintiff asserts." September 17, 2003 Opinion at p. 66. As such, Plaintiff's defamation claim turns not so much on the characterization of herself as either public or private as it does on that of the subject matter of the statements at issue. This Court has previously stated that: "The law in this area is well settled. Defamation is difficult to prove when the statements at issue revolve around a matter of public concern. Speech concerning maters of public concern is afforded strict First Amendment protection. See Boos v. Barry, 485 U.S. 312, 318 (1988); Connick v. Meyers, 461 U.S. 138, 145 (1983); N.A.A.C.P. v. Claiborne Hardware Co., 485 U.S. 886, 913 (1982)." (Court's Opinion of August 7, 2000, at p. 19). Thus, Plaintiff's defamation claim against the County is without merit as a matter of law.
4. Count VIII — Claim of Aiding and Abetting Under N.J.L.A.D.
Plaintiff has alleged that she was fired by CARA due to her outspoken nature, that this outspokenness violated the stereotypical characteristics of what a female professional should exhibit, and that the Defendants, through their actions, aided CARA in firing Plaintiff. Plaintiff asserts that she was terminated on the basis of her sex, because of gender stereotyping. As this Court has already held, however, Plaintiff was not fired because she was an outspoken woman, but rather, because she refused to comply with a directive of CARA's Board. Plaintiff claims it is sufficient that the Defendants exerted undue influence and interference to cause her to lose her employment on the basis of her gender when they jeopardized the lease for CARA's premises and CARA's funding, diminished the effectiveness of the agency by seeking to refer clients to other agencies, and otherwise interfered with her employment.
The Third Circuit's articulation of the standard regarding aiding and abetting under the NJLAD is as follows: "(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation." Hurley v. Atlantic City Police Dept., 174 F.3d 95 at 127 (3d Cir. 1999) (citations omitted). Thus, here, Plaintiff must show that CARA wrongfully terminated her, that the County was aware of its role in this tortious activity at the time the County provided assistance to CARA, and that the County knowingly and substantially assisted CARA in its termination of plaintiff.
The record supports Defendants' claim that Ms. Downey was terminated not because she was an outspoken woman, but because she was not responsive to the CARA Board's concerns about her leadership and she refused to comply with a directive from CARA's Personnel Committee, instructing her to meet with the committee to discuss concerns raised by her own staff regarding how she was running the agency. In fact, Plaintiff does not, and in fact is unable to, point to anything in the testimony of CARA's Board members or the documents maintained by CARA to support her contention that she was terminated because she was a woman, and one who did not conform to traditional gender stereotypes, at that. The statements made about Plaintiff concerned her effectiveness, her personality and management style, not her gender, unlike the gender-based comments made in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and similar cases, as previously discussed. (September 17, 2003 Opinion at 26-30).
In Price Waterhouse, the Supreme Court considered whether comments made by partners at an accounting firm regarding a female partnership candidate who was refused admission as a partner sufficiently demonstrated that gender played a part in the adverse employment decision. In that case, the partners had made comments such as plaintiff should "walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry." Id. at 235. In addition, the partners had commented that plaintiff "ha[d] matured from a tough-talking somewhat masculine hard nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate." Id. The Supreme Court explained gender stereotyping, stating that "an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Id. at 250. The Supreme Court determined that these "sex-based terms" were sufficient to establish that sexual stereotyping played a part in evaluating plaintiff's candidacy, and held that an employer who has allowed discrimination to play a motivating part in an employment decision must prove by a preponderance of the evidence that it would have made the same decision.
References to Plaintiff in this case do not rise to the level of "sex-based comments" as in Price Waterhouse. Here, Plaintiff is referred to as lacking people skills, being confrontational, challenging, and outspoken. There is no indication that the comments at issue reflected a "feminine" or "masculine" ideal in behavior. Thus, Plaintiff is unable to demonstrate that CARA terminated her on the basis of her gender and, in so doing, performed a wrongful act, as required under the NJLAD.
However, even were Plaintiff able to establish this, Ms. Downey has also not demonstrated that Defendants were generally aware of their role as part of an overall illegal or tortious activity at the time the assistance is alleged to have been provided nor that Defendants knowingly and substantially assisted CARA's violation. Nothing in the record suggests that the County intimated or made known to CARA that its funding through the County, lease discussions, or referral of clients was dependent upon CARA's terminating Plaintiff. In fact, the record suggests just the opposite. CARA was allowed continued used of the County Office Building, no rent was charged, utilities were included, and the Countyconfirmed its $175,000 commitment to CARA — all during the executive directorship of Theresa Downey. It is becoming frivolous for Plaintiff in this case to continue making the same factual allegations of the County's threats and intimidations when it is unsupportable by reasonable inferences from the facts, and the actual evidence is that the County continued to provide space and utilities for free, and reconfirmed its grant of $175,000 to renovate CARA's facilities, all during Ms. Downey's tenure as executive director. Thus, there is simply no evidence from which a reasonable juror could conclude that Defendants provided substantial encouragement or assistance to CARA to terminate her.
Because no reasonable jury could conclude that Defendants are liable for aiding and abetting under the NJLAD, the County Defendants' motion for summary judgment as to Plaintiff's aiding and abetting claim will be granted.
In conclusion, summary judgment will be entered against Plaintiff in favor of the County Defendants upon all claims against them.
C. Plaintiff's Claims Against Defendant CARA
1. Count I — Conscientious Employee Protection Act Claim
Plaintiff claims that, in terminating her employment, CARA violated the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. ("CEPA"). CEPA prohibits retaliation against an employee who "objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: . . . is in violation of a law, or a rule or regulation promulgated pursuant to law . . .; [or] . . . is incompatible with a clear mandate of public health, safety or welfare." N.J.S.A. 34:19-3c(1) and (3).
The New Jersey Appellate Court observed in Smith-Bozarth v. The Coalition Against Rape and Abuse, Inc. and Theresa Downey, 329 N.J. Super 238 (App.Div. 2000), that the threshold question in a CEPA case is whether Plaintiff has identified either "a law, or a rule or regulation promulgated pursuant to law," N.J.S.A. 34:19-3c(1), or "a clear mandate of public policy concerning the public health, safety or welfare," N.J.S.A. 34:19-3c(3), that the employer allegedly has violated. Smith-Bozarth, 329 N.J. Super. at 244-45. The Smith-Bozarth Court held that, to determine whether a plaintiff has presented a viable CEPA claim, a trial court "must first find and enunciate the specific terms of a statute or regulations, or the clear expression of public policy, which would be violated if the facts as alleged are true." Id. at 245.
If a plaintiff fails to identify a clear mandate of public policy, there is no need to consider whether the plaintiff has presented evidence that would support a finding that he or she "reasonably believed" defendant's conduct violated public policy. Id. Furthermore, whether a plaintiff has identified a clear mandate of public policy is a question of law that the court must decide before submitting a CEPA claim to a jury.Id.
Plaintiff alleges that CARA took adverse employment actions against her for: (1) criticizing local governmental officials and the courts in failing to discharge their statutory mandates to enforce civil and criminal laws concerning the rights of victims of domestic violence and sexual assault; and (2) asserting her constitutional rights in criticizing and objecting to the failure of local governmental officials and the courts in failing to discharge their statutory mandates to enforce civil and criminal laws concerning the rights of victims of domestic violence and sexual assault. Amended Complaint, First Count, paragraph 68.
Defendant contends that these allegations cannot support a CEPA claim, as Plaintiff is unable to identify a clear mandate of public policy that has been violated by CARA. The majority of Downey's allegations focus on how entities other than her employer violated a clear mandate of public policy. With respect to CARA itself, however, plaintiff alleges only that CARA took adverse employment actions against her for uncovering and objecting to fraud and conflicts of interest at CARA. Amended Complaint, First Count, paragraph 68.
Downey described both the alleged fraud and the conflict of interests in her deposition. See Downey deposition, pp. 89-91, 72-193. First, the alleged fraud involves a situation wherein Downey observed a social worker, Kathleen Carrick, mentoring a junior counselor, Noel Hiers, with regard to Hiers' preparation of a client intake form. In the course of counseling Hiers, Carrick assisted her in rewriting an intake form on a particular client, to insure that the information set forth therein was properly focused and set forth in the correct format. Id. When Carrick and Hiers had completed their task they shredded the form initially completed by Hiers because it contained confidential client information. Id. Downey alleges that the shredding of the initial form was improper and constitutes fraud.
Second, Downey describes the alleged conflicts of interest as follows: Louise Lloyd, a CARA Board member, applied for a paid volunteer coordinator position with the agency in August or September 1997. Downey deposition, pp. 526-42. Lloyd did not get the position, but remained on the Board and subsequently became Board president. Id.
Downey alleges that, because Lloyd did not get the volunteer coordinator position, she retaliated against Downey by taking actions that constituted an alleged conflict of interest. Those actions included: (1) deciding to accompany Downey to meetings in which Downey represented the agency; (2) writing a letter to the Herald praising Stephen Moore; (3) attending personnel committee meetings with the staff; (4) informing Downey of the Board's directive that she meet with the personnel committee and not the full Board; and (5) voting to terminate Downey's employment. Downey deposition, pp. 526-42.
Downey also cites the status of the Board members as a conflict of interest. Downey deposition, pp. 543-45. She alleges that most of the Board members were not properly voted in when their terms expired.Id.
These allegations of heightened oversight and conflicts of interest, however, cannot support a CEPA claim against CARA. Plaintiff simply has not identified a law, rule or regulation promulgated pursuant to law, or clear mandate of public policy that CARA violated. If anything, CARA violated its own internal policies and procedure, but in so doing, does not subject itself to suit under CEPA.
It is recognized that whistleblowing on a fraudulent scheme by an employer can give rise to a CEPA claim, because fraud in a publicly funded non-profit agency could violate a mandate of public policy that taxpayer money be expended for its intended purposes in a non-fraudulent way. Plaintiff contends that her fraud accusations are rooted in such a public policy. Plaintiff claims she uncovered what she reasonably believed constituted: (1) fraud in the preparation of a court-ordered client report, and the improper destruction of supporting documents by CARA staff whose salaries were paid for with public funds, and (2) fraud and misuse of public funds by a CARA Board member. Plaintiff asserts that the record shows the existence of a genuine fact issue regarding whether Plaintiff was fired, at the behest of a problematic employee, for unearthing fraud and illegal conduct to which the employee was a party. Plaintiff further contends that because CARA is largely supported by public funds from DYFS and the County, her allegations of fraud implicate the public policy of avoiding the misuse of public funds and deceiving the public. This Court agrees that Plaintiff has identified a policy mandate, namely preventing financial fraud, sufficient to satisfy the threshold requirement of CEPA.
Having identified such a policy mandate, this Court must next examine whether Plaintiff is able to rebut the legitimate, non-retaliatory, and non-discriminatory reasons for her termination offered by Defendant CARA. Defendant argues that the record reveals that Downey was terminated, not for "blowing the whistle" as to any allegedly improper activity by CARA, but for refusing to do her job and obey the direct orders of her supervisors. Such a reason, if accepted by the fact finder, would defeat Downey's CEPA claim.
Downey, however, claims she was terminated, in part, because of her discovery of and opposition to CARA's alleged misuse of public funds. CARA is supported largely by public funds from DYFS and the County. Plaintiff alleges the misuse of public funds in attempting to grant a salary, in violation of internal rules and contrary to representations to overseers of public funds. CARA's bylaws mandate that Board members are to serve voluntarily, without compensation. However, while President of the Board, Louise Lloyd applied for a paid staff job, without representing that she would resign from her Board post. See Louise Lloyd deposition, pp. 167:3-169:21). Downey denied Lloyd this paid staff job at CARA, which Lloyd had lobbied for since August 1997, in January or February of 1998. Downey deposition, pp. 526-27. As a result, Downey contends, Lloyd retaliated against her in various ways, including holding the Board meeting at which the Board decided to terminate her employment. Id. at 536-42.
Plaintiff's objections to the improper use of public funds and voicing of her concern with various practices at CARA came several days before her termination on July 13, 1998. The Board meeting at which Downey was terminated was a special meeting, not a regularly scheduled one, and was called with the alleged purpose of discussing the concerns voiced by the staff and Downey's refusal to meet with the personnel committee. Downey's employment was terminated effective July 15, 1998.
Though it is a close call, this evidence may allow for the drawing of inferences in favor of Plaintiff that the stated reason for termination of insubordination is but a pretext for punishing her refusal to appoint Lloyd to a salaried position or for thwarting the attempted fraud upon the court that would have resulted from the shredding of the client-report in light of the allegedly irregular manner in which the Board was convened and assembled on the day Plaintiff was terminated.
At trial, Downey will bear the burden of proving the two remaining aspects of her CEPA claim: (1) that the shredding of the supporting documents to a court-ordered client report was part of a broader CARA plan, known to the Board, to commit fraud upon that court; and (2) but for Downey's refusal to hire Lloyd for the salaried volunteer coordinator position, Lloyd would have accepted and held this paid position while remaining a member of the Board, in violation of the by-laws and resulting in financial fraud.
With respect to the first aspect of her claim, Plaintiff will have to show that (1) Carrick and Hiers shredded the supporting documents in an attempt to commit fraud upon the court that had ordered the client report; (2) the Board was aware of and condoned this act of fraud; (3) Downey voiced her objections to the Board regarding this incident; and (4) the Board terminated Downey in retaliation for thwarting this planned fraud upon a court.
With respect to the second aspect of her CEPA claim, Plaintiff will bear the burden of proving that (1) had Lloyd been hired for the salaried volunteer coordinator position, she would have retained her position on the Board as well; (2) Lloyd's receiving a salary while a Board member would be in violation of the by-laws and would amount to misuse of public funds; (3) Downey thwarted Lloyd's plan to commit financial fraud by refusing to hire her for the salaried position; and (4) the Board terminated Downey as retribution for her disruption of Lloyd's plan.
As the record stands at the summary judgment stage of this case, neither side has sufficiently addressed these fundamental elements of the two remaining aspects of Plaintiff's CEPA claim. Thus, this Court will give Plaintiff the benefit of all possible inferences and allow her CEPA claim to survive the motion for summary judgment.
Plaintiff also alleges that entities other than her employer violated a clear mandate of public policy. Under the law, these allegations cannot support a CEPA claim against CARA and Plaintiff's claim thus cannot be submitted to a jury.
Plaintiff, however, asserts that CEPA's underlying remedial purpose supports her claims, insofar as the purpose is to protect employees from employers who take adverse employment actions against them because such employees have objected to unlawful, fraudulent or other conduct violating mandates of public policy in New Jersey. Plaintiff argues that this is exactly what happened here, irrespective of what entity actually violated a public policy mandate. Plaintiff contends that although her objections were to other defendants who did not pay her salary, she is still protected by CEPA. Plaintiff alleges she objected to unlawful acts by the County Defendants, and Defendants Moore and Batten, in which CARA is alleged to have acquiesced. Plaintiff asserts that, by law, those Defendants may be construed as agents of CARA, and possibly even employers of Plaintiff under CEPA and the LAD.
Plaintiff, however, simply cannot predicate a CEPA cause of action on the allegation that entities other than CARA violated a clear mandate of public policy. See Abbamont v. Piscataway Twp. Bd. of Ed., 138 N.J. 405 (1994) (Court noted that CEPA protects "whistleblowers," "who, believing that the public interest overrides the interest of the organization he serves, publicly `blows the whistle' if the organization is involved in corrupt, illegal, fraudulent, or harmful activity." Id. at 417 (emphasis added)). Furthermore, Plaintiff's agency law theory must fail, for it would require this Court to resurrect the previously rejected theory that CARA is a state actor. See May 2, 2001 Opinion; February 21, 2003 Opinion (rejecting the argument that CARA is a state actor).
Furthermore, Plaintiff argues that her First Amendment retaliation claim is protected by and thus proper under CEPA. To support this assertion, Plaintiff cites the Third Circuit's decision in Zamboni v. Stamler, 847 F.3d 73 (3d Cir. 1988). Zamboni, however, involved a civil service employee in a county prosecutor's office — that is, a public employee and his criticism of the internal operations of his place of public employment. As CARA is not a state actor, the Court's decision in Zamboni implicates no relevant public policy. See also Borse v. Pierce Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992) (noting that, in Third Circuit decisions subsequent to Zamboni, courts have cautioned against utilizing the First and Fourth Amendments as sources of public policy when there is no state action).
However, because Plaintiff has satisfied the threshold requirement — the question of law that asks whether a plaintiff has identified a clear mandate of public policy — under CEPA in alleging financial fraud and the circumstances surrounding her termination raise factual issues, Defendant's motion for summary judgment as to this claim will be denied.
2. Count V — Breach of Contract Claim
Plaintiff alleges breach of contract between herself and CARA, premised on the CARA Personal Practices manual. Amended Complaint, Fifth Count, paragraph 87. Plaintiff asserts that she was terminated without application of CARA's progressive discipline, just cause, and notice provisions in its express and implicit policies. See Defendant's Exhibit C, Personnel Practices manual.
Defendant argues that Plaintiff's allegations are factually inaccurate, as the manual does not contain a mandatory progressive discipline procedure and/or a definite, explicit and clear termination procedure. Rather, Defendant contends that Plaintiff was an employee at will of CARA and, as such, her employment could be terminated for any reason or for no reason at all.
Defendant points to the New Jersey Supreme Court's decision inWitkowski v. Thomas J. Lipton, 136 N.J. 385 (1994). There, the court held that an employee manual providing terms and conditions of employment that include grounds and procedures for dismissal can create an employment contract. Id. at 392. The Witkowski court found that the manual at issue had been widely distributed, and that it contained "definite and comprehensive" job security provisions, and a progressive discipline procedure. Id. at 395-96. The manual mandated an initial verbal warning, an initial written warning, a second written warning, and a third written notice. The third written notice constituted grounds for dismissal. Id. at 391.
Defendant argues that based on the standard set forth above, the CARA manual does not create a contract of employment, as there is no "detailed procedure" that is mandated prior to termination of an employee. Instead, the manual contains a section entitled "Disciplinary Action" which is to be applied at the discretion of the supervisor. Furthermore, the manual contains a list of reasons for dismissal which is not all-inclusive; insubordination is listed as a reason for dismissal. See Defendant's Exhibit C, Personnel Practices manual.
However, the Witkowski court spent considerable time also discussing when a contract of employment is created. "[U]nder Woolley, the basic test for determining whether a contract of employment can be implied turns on the reasonable expectations of employees." Witkowski, 136 N.J. at 393. The court continued, "A number of factors bear on whether an employee may reasonably understand that an employment manual is intended to provide enforceable employment obligations, including the definiteness and comprehensiveness of the termination policy and the context of the manual's preparation and distribution." Id.
Ultimately, the Witkowski court remanded the matter to a jury to determine whether an employee could have reasonably expected that the manual at issue provided job security, thereby creating an implied contract of employment. This case is no different, and as such, the questions of whether Downey was employed pursuant to a contract and whether there was a breach of that contract are best left to the judgment of a jury. Indeed, the New Jersey Appellate Division has recognized thatWoolley claims tend to present questions of material fact, thereby precluding summary judgment. See Giudice v. Drew Chem. Corp., 210 N.J. Super. 32, 36 (App Div. 1986).
As sufficient questions of material fact exist to warrant the breach of contract claim going to a jury, Defendant's motion for summary judgment is denied as to this claim.
3. Count VI — Claim for Breach of an Implied Covenant of Good Faith and Fair Dealing
Defendant argues that because Plaintiff had no contract of employment with CARA — express or implied — her claim for breach of an implied covenant of good faith and fair dealing must fail. Defendant cites to McQuitty v. General Dynamics Corp., 204 N.J. Super. 514 (App. Div. 1985). There, the court held that an implied covenant of good faith and fair dealing does not exist independent of a contract of employment. The court further observed that where a plaintiff is an employee at will, the argument that every contract imposes a duty of good faith and fair dealing is irrelevant. The court observed that one cannot read additional terms into a non-existent contract. As Defendant argues that Downey was an employee at will, no employment contract exists and therefore there can be no implied covenant of good faith and fair dealing.
Plaintiff, however, argues that a contract may be created based upon a company's unwritten policies as established by practice. Preston v. Claridge Hotel Casino, 231 N.J. Super. 81, 86 (App.Div. 1989). In addition, as demonstrated above in the preceding section, a contract of employment may be implied where a job manual creates a reasonable expectation of job security on the part of the employee. Again, this is a question best left to a jury and which, by its very nature, precludes the entry of summary judgment. Thus, CARA's motion for summary judgment as to Plaintiff's claim for breach of an implied covenant of good faith and fair dealing must also be denied.
4. Claim VII — NJLAD Claim
Plaintiff alleges that she was gender stereotyped, discriminated against and terminated from her employment at CARA because she is "an outspoken woman whose role as an employee at CARA was impaired by her outspokenness compared to other females who were not aggressive or outspoken and fit the stereotype of the characteristics of what a female professional should possess and were in [CARA's] view tolerable." Amended Complaint, Seventh County, paragraph 92.
Under the NJLAD, Plaintiff's claim requires that she prove (1) she was in a protected group, (2) that she was performing her job at a level that met her employer's legitimate expectations; (3) that she nevertheless was fired; and (4) that CARA sought someone to perform the same work after she left. Rivera v. Trump Plaza Hotel Casino, 305 N.J. Super. 596, 605 (App.Div. 1997) (citing Clowes v. Terminix Intern., Inc., 109 N.J. 575, 597 (1988)). In addition, the Supreme Court has held that, in order to state a gender stereotyping claim, the plaintiff has to adduce evidence establishing that she suffered an adverse employment action because she was perceived as not conforming to stereotypical images and expectations of how a woman should or should not look or behave. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Even giving Plaintiff, as the party opposing summary judgment, all favorable inferences from the evidence in this case, Plaintiff cannot meet her burden of demonstrating that the Board members of CARA viewed her as a female who failed to conform to stereotypical images and expectations of how a woman should or should not look or behave. Furthermore, even if Plaintiff could meet this initial burden, she cannot demonstrate that CARA terminated her employment due to gender stereotyping, in light of the good faith non-discriminatory business reasons for her termination given by CARA.
As discussed above with respect to the claims against the County Defendants, and as discussed in this Court's Opinion of September 17, 2003 at 26-30, Plaintiff's situation is wholly distinguishable from that in Price Waterhouse. Plaintiff simply cannot meet her burden of demonstrating to a reasonable factfinder that the Board members of CARA viewed her as a female who failed to conform to stereotypical images and expectations and terminated her for this reason.
The record supports CARA's claim that Plaintiff was terminated not because she was an outspoken woman, but because she refused to comply with a directive from CARA's Personnel Committee. References to Plaintiff in this case do not rise to the level of "sex-based comments" as in Price Waterhouse. In fact, statements members of the CARA Board made about Plaintiff are largely gender neutral, as they are keyed to the attributes of an executive director of an organization, whether male or female. Here, Plaintiff is referred to merely (and neutrally) as lacking people skills, being confrontational, unsmiling, humorless, hostile and combative, and difficult. Plaintiff is thus unable to demonstrate that CARA terminated her on the basis of her gender, as is required to sustain a claim under the NJLAD, and not, as CARA contends, because of Plaintiff's insubordination.
Moreover, the Executive Directors who proceeded and succeeded Ms. Downey were also female. There is no credible evidence in the record to support Plaintiff's contention that the women who preceded and succeeded her in the Executive Director position were not equally aggressive or assertive. CARA did not disapprove of smart, tough female advocates. Indeed, the fact that women possessing these qualities preceded and succeeded Downey belies Plaintiff's allegation that CARA preferred weak, effeminate females in management positions.
It thus becomes clear that a reasonable jury could not conclude that CARA is liable under the NJLAD, and therefore, Defendant's motion for summary judgment as to this claim will be granted.
5. Count IX — Conspiracy Claim
In the Ninth Count of her Amended Complaint, Downey alleges that CARA participated in a civil conspiracy with the other Defendants, in violation of New Jersey common law. A conspiracy is defined as an agreement between two or more persons to accomplish an unlawful purpose, or a lawful purpose by unlawful means. See Kronefeld v. First Jersey Nat. Bank, 638 F. Supp. 1454, 1468 (D.N.J. 1986). Although a conspiracy may be proven circumstantially, circumstantial evidence of a conspiracy must demonstrate more than mere possibility. "[P]roof of opportunity to conspire, without more, will not sustain an inference that a conspiracy has taken place." Tose v. First Pennsylvania Bank, N.S., 648 F.2d 879, 894 (3d Cir. 1981). The inference must be based on "reasonable probability that the conclusion flows from proven facts," and not on "mere speculation." Id. at 895.
Defendant CARA contends that there is no evidence, direct or circumstantial, after hundreds of hours of depositions and the production of thousands of documents, of an agreement between CARA and any other Defendant, much less an agreement to do something improper or illegal.
Furthermore, in her deposition, Plaintiff testified that she assumed that, at some point, CARA succumbed to pressure by the County Defendants to terminate her employment. Downey deposition, pp. 406-07, 518-19. She is unable to say when the alleged conspiracy started or when CARA succumbed to it. Id. She assumed, instead, that the termination of her employment was the result of a conspiracy because, in her estimation, there was no real reason for that termination. Id.
In asserting her conspiracy claim, Plaintiff alleges under 42 U.S.C. § 1983 and 1985 violations of her Fourteenth and First Amendment rights. First, Downey claims that she was deprived of a property interest in her continued employment at CARA. This property interest was protectable, according to Plaintiff, based upon CARA's written progressive discipline policy. As to the First Amendment right asserted, Plaintiff argues that she was a private person, addressing public issues. Plaintiff asserts that because Defendants are effectively controlled by the state-actor defendants, they should be construed as state-actors themselves, or agents thereof.
Plaintiff's conspiracy claim must fail, however, because CARA is not a state actor. This Court has so ruled previously. See Opinion, May 2, 2001; Opinion, February 21, 2003. Therefore, Plaintiff's conspiracy claims against CARA predicated upon 42 U.S.C. § 1983 and 1985 are without merit. Furthermore, based on the record in this case, no reasonable jury could find that the decision to terminate Plaintiff's employment was that of anyone other than the CARA Board. Thus, CARA's motion for summary judgment on Plaintiff's conspiracy claim will be granted.
In conclusion, summary judgment will be entered in favor of CARA on Plaintiff's NJLAD and conspiracy claims. Summary judgment is denied as to Plaintiff's CEPA, breach of contract, and implied covenant claims, which will be scheduled for trial shortly.
D. Count VIII — NJLAD Claim Against Judge Batten
The only remaining claim against Judge Batten is the allegation that Judge Batten aided and abetted CARA's discriminatory stereotyping of Plaintiff, resulting in her termination, in violation of the NJLAD.
As a threshold matter, this Court must first determine whether Judge Batten may be sued in his individual capacity under the NJLAD or whether he is entitled to Eleventh Amendment immunity. The Eleventh Amendment provides:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. Although the Amendment expressly prohibits suits against States by citizens of other states, the Supreme Court has made clear that the Eleventh Amendment also bars suits against the State by its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662 (1974). "The state is the real party in interest, entitled to sovereign immunity, when `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.'" In re Almon Raphael, 238 B.R. 69, 79 (D.N.J. 1999) (quoting Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989)). Here, Judge Batten is sued in his individual capacity, and as such, this suit does not subject the public treasury to the risk of being forced to satisfy any judgment that might be obtained against him. The underlying rationale of the Eleventh Amendment is therefore absent here.
Furthermore, although this District has held that "a plaintiff may not sue the State of New Jersey, or its alter egos, under the NJLAD in federal court," Judge Batten, sued in his individual capacity, is neither the State of New Jersey nor can he be fairly characterized as its alter ego. Garcia v. Richard Stockton College of New Jersey, 210 F. Supp.2d 545, 550 (D.N.J. 2002). Thus, in such a case, Eleventh Amendment immunity does not extend to individual defendants sued in their individual capacities.See generally Zmora v. State of Minnesota, 2002 WL 539075 (D. Minn. 2002) (holding that state university officials are not cloaked with immunity in their individual capacities). That the allegations herein arose against Judge Batten as he acted within the scope of his state employment for purposes of the New Jersey Tort Claims Act, as this Court previously determined in its March 27, 2002 Opinion, meant that with respect to tort claims Judge Batten's liability, if any, is circumscribed by the New Jersey Tort Claims Act. That determination, however, does not answer the question posed by the claim of Eleventh Amendment immunity, namely, whether he was also acting as the alter ego of the State of New Jersey under principles of federal jurisprudence construing the Eleventh Amendment. A Judge of the Superior Court, whose decisions are subject to judicial review and oversight, is not the functional equivalent of the State, even though he is clearly a person acting under color of state law for § 1983 purposes, and a New Jersey employee acting within the scope of his state employment for tort claim purposes. Thus, having determined that Judge Batten, sued in his individual capacity, is not entitled to the protections of the Eleventh Amendment, the Court turns now to Plaintiff's remaining claim against him.
Under the NJLAD, it is unlawful "for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of the acts forbidden under this act, or to attempt to do so." N.J.S.A. § 10:5-12(e). In Hurley v. Atlantic City Police Department, 174 F.3d 95 (3d Cir. 1999), the Third Circuit emphasized that the tort of aiding and abetting involves three elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortuous activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation."Hurley, 174 F.3d at 127. The Third Circuit also reiterated the Restatement (Second) of Torts's list of factors to consider to determine whether the "substantial assistance" requirement is satisfied. Those factors are "the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind." Id. at 127 n. 27. Another factor to be considered is the duration of the assistance provided. Id. The New Jersey Superior Court adopted the Third Circuit's analysis of aiding and abetting liability under the NJLAD in Gardenhire v. New Jersey Manufacturers Insurance Co., 333 N.J. Super. 219, 228 (Law Div. 2000).
Plaintiff alleges that Judge Batten engaged in gender stereotyping through his alleged active and passive support of CARA's actions toward Downey. However, Plaintiff has failed to provide any competent evidence that Judge Batten had any role as part of an overall scheme to discriminate against her or that Batten knowingly and substantially assisted CARA in discriminating against her. Further, as shown throughout the adjudication of this case, there is no evidence from which a reasonable juror could conclude that Plaintiff was the victim of gender discrimination in her employment with CARA.
Plaintiff offers only the following evidence as support for her allegation that Judge Batten knowingly and substantially assisted CARA in having her terminated: (1) Judge Batten's September 19, 1997 letter (Def. Exhibit B at 1244:14-15) to Downey was a personal attack in furtherance of the conspiracy to have her terminated (Def. Exhibit B at 417:7-11); (2) Judge Batten stopped referring adjudicated batterers to CARA for counseling in an effort to remove her from employment (Def. Exhibit B at 420:12-20); (3) Judge Batten spoke to employees of DYFS in an attempt to have CARA's funding pulled (Def. Exhibit B at 417:11-13); and (4) Judge Batten and Stephen Moore instigated an unprecedented child abuse investigation against her with Judge Batten using the process of a case that came before him to start an investigation of CARA, and, therefore, her directorship (Def. Exhibit B at 417:13-16).
The record in this case fails to establish that Judge Batten knowingly and substantially assisted CARA's termination of Plaintiff, let alone that such efforts were gender discriminatory in purpose. With respect to the September 19, 1997 letter, the record reflects that the CARA Board was not interested in anything that Judge Batten "thought, or did, or wrote . . . and would definitely not have reacted to anything that Judge Batten wrote, particularly in September of 1997." (Def. Exhibit P at 411:9-25; 412:1-5). Moreover, Phyllis Childs, a member of the CARA Board, testified that the CARA Board would probably not "have spoken to [Judge Batten] if he called them." (Def. Exhibit Q at 410:1-4).
In addition, Judge Batten acted well within his judicial discretion in ceasing referrals to CARA. Judge Batten initiated this referral system as an informal practice. (Def. Exhibit E at 385). As this Court previously recognized, the evidence reflected that Judge Batten elected to discontinue this practice purely out of concern for the effectiveness of the counseling organization. (February 21, 2003 Opinion at 21-22). Plaintiff has not demonstrated that Judge Batten's decision to cease referrals to CARA was in an effort to have her terminated.
Further, the record is clear that Judge Batten did not speak to CARA, DYFS, the County or any other parties regarding CARA's funding. See Def. Exhibit E (Batten) at 341:15-18; Def. Exhibit K (Kehs) at 100:5-25, 156:7-9; Def. Exhibit M (Devaney) at 147:1-4; Def. Exhibit N (Pagano) at 13:17-25, 14:17-25).
Finally, Plaintiff's allegation that Judge Batten used the process of a case that came before him in his capacity as a Superior Court Judge to commence an investigation of CARA, and therefore, her directorship, is unsupported by the record. Judge Batten acted well within his authority in referring a serious matter involving the investigation of child abuse to the prosecutor, since it occurred in Judge Batten's case docket, in accordance with establish protocol.
The record evidence in this case overwhelmingly supports the notion that the decision to terminate Plaintiff was the result of her own insubordination (Exhibits 0 and P), not the result of any conspiracy involving Judge Batten, who had no contact with or influence upon the CARA Board (Exhibit Q at 409:3-21).
Plaintiff contends, however, that she is entitled to present her claim for punitive damages to a jury because New Jersey courts recognize that an LAD plaintiff may recover punitive damages. See Lockley v. State of New Jersey, 344 N.J. Super. 1 (App.Div. 2001). Since no NJLAD claim remains, the punitive damages claim must also be dismissed.
In conclusion, the record indicates that no reasonable jury could conclude that Judge Batten is liable for aiding and abetting under the NJLAD, and thus, the Defendant's motion for summary judgment will be granted.
III. CONCLUSION
For the reasons stated herein, the County Defendants' motion for summary judgment will be granted, Defendant CARA's motion for summary judgment will be granted in part and denied in part, and Defendant Judge Batten's motion for summary judgment will be granted. The accompanying Order will be entered.
ORDER
THIS MATTER coming before the Court upon motion of Defendants Cape May County, Cape May County Board of Chosen Freeholders, and Cape May County Office of the Prosecutor for summary judgment, Defendant The Coalition Against Rape and Abuse, Inc's summary judgment motion, and Defendant Raymond Batten's motion for summary judgment; and this Court having heard oral argument on October 14, 2003; and the Court having considered the parties' submissions, and for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS on this day of November, 2003, hereby
ORDERED that Defendants Cape May County, Cape May County Board of Chosen Freeholders, and Cape May County Office of the Prosecutor's motion for summary judgment [Docket Item No. 139-1] be, and hereby is, GRANTED , and Judgment will be entered in favor of these Defendants on Plaintiff's claims against these Defendants for violation of 42 U.S.C. § 1983 (Count II), violation of 42 U.S.C. § 1985 (Count X), defamation (Count IV), and aiding and abetting under NJLAD (Count VIII); and
IT IS FURTHER ORDERED that The Coalition Against Rape and Abuse, Inc.'s motion for summary judgment [Docket Item No. 142-1] be, and hereby is, GRANTED IN PART AND DENIED IN PART , and Judgment will be entered in favor of Defendant on Plaintiff's claims against this Defendant for violation of NJLAD (Count VII) and conspiracy (Count IX) and summary judgment is DENIED on Plaintiff's claims against this Defendant for violation of CEPA (Count I), breach of contract (Count V) and breach of an implied covenant of good faith and fair dealing (Count VI), which shall proceed to trial; and
IT IS FURTHER ORDERED that Defendant Raymond Batten's motion for summary judgment [Docket Item No. 147-1] be, and hereby is, GRANTED , and Judgment will be entered in favor of Defendant Batten on Plaintiff's claim against this Defendant for aiding and abetting under NJLAD (Count VIII).