MELVIN CLARKE v. ATLANTIC CITY BOARD OF EDUCATION AND FREDRICK NICKLES (2010)

Plaintiff Melvin Clarke appeals from the May 27, 2008 order that dismissed his complaint for failure to state a claim upon which relief can be granted, R. 4:6-2(e).   We reverse and remand.

Plaintiff is employed by defendant Atlantic City Board of Education (ACBOE) as an assistant superintendent responsible for student services.   Plaintiff is one of several assistant superintendents in the ACBOE school district.   Defendant Fredrick Nickles ¹ is the district's Superintendent of Schools.   On February 25, 2002, plaintiff filed a complaint in the Law Division under Docket No. ATL-L-731-02 alleging discrimination against the same defendants named in this action.   On September 26, 2002, the parties settled the lawsuit with ACBOE agreeing, among other things, to “grant plaintiff a salary increase of $5,000, retroactive to July 1, 2002, over [and] above his present salary of $134,003.”   Additionally, ACBOE agreed “to maintain and [e]nsure at least a $5,000 salary differential in favor of plaintiff, during his employment, compared to other Assistant Superintendents in the District.”

On June 27, 2007, plaintiff filed a thirty-six paragraph, single-count complaint against defendants, alleging that they had violated the Law against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by subjecting him to a hostile work environment, by subjecting him to handicap discrimination, and by retaliating against him for his having engaged in protected conduct under the LAD. On July 11, 2007, plaintiff filed an amended seventy-paragraph, single-count complaint.   In September 2007, defendants filed a motion seeking to dismiss plaintiff's amended complaint for failure to state a claim upon which relief can be granted.   The trial court heard argument on the motion on February 27, 2008.   On May 8, 2008, the court entered an order supported by a written opinion granting the motion.   In so doing, the court reasoned:

However, after taking a “generous and hospitable approach” to plaintiff's [c]omplaint, as required by R. 4:5-2 and R. 4:6-2, the comments thereto, and the relevant case law, the court has determined that plaintiff has failed to allege facts that sustain a cause of action.   None of plaintiff's allegations against defendants is indicative of an adverse employment decision.   Although plaintiff's allegations suggest that his work environment has been less than pleasant since assisting [, a co-employee,] with her sexual harassment claim, they are not suggestive of some action substantially similar in adversity to termination or a demotion-the LAD is “not a general civility code for workplace conduct.”  Sheperd v. Hunterdon [Ctr., 336 N.J.Super. 395, 416 (App.Div.2001), aff'd. in part and rev'd. in part on other grounds, 174 N.J. 1 (2002) ].   There is no single adverse employment [action] alleged that could sustain a cause of action.   The events alleged accepted as true could not sustain a cause of action for hostile work environment.

․

․ There is no adverse employment decision that rises to a level of more than arrogance.

In paragraph 40 plaintiff alleges very vaguely that he has been ostracized by co-workers, but no mention of by who, when or why.   He previously accused Nickels and [Barry Caldwell, another assistant superintendent] of wrongful acts and in an earlier portion of the [c]omplaint describes Nickels making some negative statements that are false to Board members about him and Caldwell ostracizing him.   Nickels telling the Board that plaintiff is trying to sabotage him when plaintiff has made it clear that he believes Nickels should not be Superintendent is not a cause of action.   The unfortunate fact is that when you accuse others of wrongdoing, they probably won't like you and may talk about you and avoid you, but that isn't an adverse employment action as long as it does not interfere with your employment.

The claims regarding his contract and his settlement are not claims of an adverse employment action.   They are claims for failure to comply with a settlement agreement and have already been addressed by this court as a motion to enforce settlement.2

The new allegations about handling of expulsions and discipline are disagreements about policy and not actionable.   Plaintiff seems to think that anything he disagrees with that is done at work is actionable.   The law doesn't and cannot guarantee a pleasant dispute free and friendly work environment for those who assist others in discrimination claims.

The claim that plaintiff ha[d] his office moved from one floor to another is also not an adverse employment action.   If plaintiff was not disabled, it wouldn't be actionable.   Since he claims he is disabled, it may be a basis for a disability discrimination claim.

The court orders the [c]omplaint dismissed for failure to state a cause of action.   Plaintiff is free to file a new complaint for his office being moved, but not as a retaliation claim.   It is only actionable if it violates his rights as a disabled person.

On appeal, plaintiff argues that the trial court erred in dismissing his amended complaint, contending the pleading sufficiently pled causes of action of retaliation and of handicap discrimination in violation of the LAD.³ We agree.

On a Rule 4:6-2(e) motion to dismiss a complaint for failure to state a claim, the court applies an indulgent standard.  “ ‘[T]he plaintiff is entitled to a liberal interpretation of [the] contents [of the complaint] and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn’ ” therefrom.  Burg v. State, 147 N.J.Super. 316, 319 (App.Div.) (quoting Rappaport v. Nichols, 31 N.J. 188, 193 (1959)), certif. denied, 75 N.J. 11 (1977).   Every reasonable inference is accorded the plaintiff, Printing Mart-Morristown v. Sharp Elecs.   Corp., 116 N.J. 739, 746 (1989), and the motion is “granted only in rare instances and ordinarily without prejudice.”   Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2010).

While the “inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint,” Printing Mart-Morristown, supra, 116 N.J. at 746, the reviewing court must “view the allegations with great liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint.”  Sickles v. Cabot Corp., 379 N.J.Super. 100, 106 (App.Div.), certif. denied, 185 N.J. 297 (2005).   Accordingly, “the test for determining the adequacy of a pleading [is] whether a cause of action is ‘suggested’ by the facts.”  Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).   In applying this test, a court treats the plaintiff's version of the facts as set forth in his or her complaint as uncontradicted and accords it all legitimate inferences.  Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).   On appeal, our standard of review is the same as the trial court's.   Donato v. Moldow, 374 N.J.Super. 475, 483 (App.Div.2005).

Plaintiff first argues that the trial court erred in dismissing his retaliation claim for failing to allege he suffered an adverse employment action.

To prove a prima facie case of retaliatory discrimination under the LAD, the plaintiff must show that:  “1) he was engaged in a protected activity known to the defendant;  2) he was thereafter subjected to an adverse employment decision by the defendant;  and 3) there was a causal link between the two.”   Romano v. Brown & Williamson Tobacco Corp., 284 N.J.Super. 543, 548-49 (App.Div.1995).   The LAD prohibits an employer from taking reprisals against an employee because the employee opposed practices or acts prohibited under the LAD, or because the employee filed a complaint, testified or assisted in any proceeding under the LAD. N.J.S.A. 10:5-12(d).  However, the LAD does not define “adverse employment action” and there is no bright-line rule in determining what constitutes an adverse employment action.  Mancini v. Twp. of Teaneck, 349 N.J.Super. 527, 564 (App.Div.2002), aff'd. o.b., 179 N.J. 425 (2004).

Nonetheless, such actions as terminating the employee from employment or failing to promote the employee constitute adverse employment actions.   Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J.Super. 436, 447 (App.Div.1990).   Likewise, forcing a plaintiff into resigning from his or her employment can constitute an adverse employment action.  Woods-Pirozzi v. Nabisco Foods, 290 N.J.Super. 252, 276 (App.Div.1996).   Simply stated, to constitute an adverse employment action, “the retaliatory conduct alleged must be ‘serious and tangible’ enough to alter an employee's compensation, terms, conditions, or privileges of employment, deprive her future employment opportunities, or otherwise have a ‘materially adverse’ effect on her status as an employee.”  Hargrave v. County of Atlantic, 262 F.Supp.2d 393, 427 (D.N.J.2003) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300-01 (3d Cir.1997)).

Additionally, because the LAD is a remedial statute like the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, reference to the CEPA definition of “adverse employment action” provides guidance in considering LAD retaliation claims.   See Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994).   CEPA defines a retaliatory action as “the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment,” N.J.S.A. 34:19-2(e) (emphasis added).   Moreover, “[m]any separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but [when] combine[d] ․ [they] make up a pattern of retaliatory conduct.”  Green v. Jersey City Bd. of Ed., 177 N.J. 434, 448 (2003);  see also Nardello v. Twp. of Voorhees, 377 N.J.Super. 428, 433-36 (App.Div.2005).

There are two categories of disability discrimination:  disparate treatment, and the failure to reasonably accommodate the employee's known disability.   Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J.Super. 385, 397 (App.Div.2002).   The LAD does not specifically speak to reasonable accommodation.  Potente v. County of Hudson, 187 N.J. 103, 110 (2006).   However, the courts and the New Jersey Division on Civil Rights (Division) in the Department of Law and Public Safety have.  Ibid;  Tynan, supra, 351 N.J.Super. at 396-97.  N.J.A.C. 13:13-2.5(b), adopted by the Division under the LAD, provides that an employer must “make a reasonable accommodation to the limitations of an employee ․ who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.”

However, before the employer is required to provide the employee with an accommodation, the employee must first request it.  Tynan, supra, 351 N.J.Super. at 399-400.   Once the employee makes a request for an accommodation, “ ‘both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.’ ”  Id. at 400 (quoting Taylor v. Phoenixville School District, 184 F.3d 296, 312 (1999)).   Moreover,

[t]o determine what appropriate accommodation is necessary, the employer must initiate an informal interactive process with the employee.   This process must identify the potential reasonable accommodations that could be adopted to overcome the employee's precise limitations resulting from the disability.   Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation.

[Ibid. (internal citations omitted).]

Because the failure to accommodate is an act that may prove discrimination, Victor v. State, 401 N.J.Super. 596, 614 (App.Div.2008), certif. granted, 199 N.J. 542 (2009), the employer's lack of engagement “in an interactive process to determine the need and availability of a reasonable accommodation, supplements the requisite presentation of a prima facie case of discrimination.”  Ibid. It is against these legal principles that we consider plaintiff's arguments.

We first consider plaintiff's argument that the trial court erroneously dismissed his retaliation claim.   Defendants do not contest that plaintiff's amended complaint sufficiently alleged he had engaged in protected conduct under the LAD by assisting a co-employee in prosecuting a claim for sexual harassment against another school employee and ACBOE.   Rather, defendants contend, as decided by the trial court, that plaintiff failed to allege sufficient facts from which to find an adverse employment action necessary to prove the retaliatory claim.

Contrary to the trial court's determination that plaintiff was required to allege a “single adverse employment [action] ․ to sustain a cause of action,” we are satisfied that an indulgent consideration of plaintiff's amended complaint discloses he alleged various retaliatory actions which, if considered together, could constitute an adverse employment action under the LAD. The amended complaint alleged, among other things:

The defendants have engaged in particularly egregious retaliation, by relocating the plaintiff, who has difficulty ambulating and uses a power scooter and cane for mobility, from a location which accommodated the plaintiff's disability by being in close proximity to a bathroom and which had no doors or other obstructions, to an office on the sixth floor of the building, which is no longer in close proximity to the bathroom and does not have the same reasonable accommodations as the plaintiff's prior office.

The plaintiff has also had to be evacuated from the building using the stairwell in cases of emergencies;  his current location forces him to navigate one more floor.

The plaintiff has also requested that defendant Nickles develop a 504 plan [ 4] for the plaintiff which request Nickles has refused;  plaintiff is the only employee for whom a 504 plan has not been prepared once requested.

No reasonable justification has been provided by the defendants for the relocation or refusal to accommodate the plaintiff's disability.

․

In accordance with the Settlement Agreement, the Board agreed “․ to maintain and insure at least a $5,000.00 salary differential in favor of the plaintiff, during his employment, compared to other Assistant Superintendents in the District.”   See, Exhibit “L”.

The defendants have now violated the express terms of the Settlement Agreement as the Board has approved contracts for all of the Assistant Superintendents, other than plaintiff, in which they have not maintained the guaranteed $5,000.00 salary differential.

․

On or about June 11, 2007, both plaintiff and [another school employee] were stranded on the sixth floor during a fire alarm as a result of their physical disabilities;  both placed Mr. Nickles on notice of this incident yet no action has been taken to accommodate their physical handicaps.

The trial court also rejected plaintiff's allegation that defendants had retaliated against him by refusing to negotiate a new employment contract unless plaintiff agreed to abrogate the 2002 settlement entitling him to a $5,000 differential between his salary and that of other assistant superintendents, determining that the matter did not constitute discrimination, but only served as a basis for a motion to enforce the terms of the 2002 settlement.   Equally plausible, is that this action was initiated as a form of retaliation.   We also agree with plaintiff that defendants' actions in relocating plaintiff's office to the sixth floor of the school building could be considered retaliatory and does not have to be asserted as a separate handicap discrimination claim.   Accordingly, we are satisfied that plaintiff alleged various acts which, when considered as a whole, may have caused him to suffer an adverse employment action in the terms and conditions of his employment sufficient to withstand the motion to dismiss.  Green, supra, 177 N.J. at 448.

We next address plaintiff's handicapped disability claim.  “Disability” is defined in the LAD in relevant part as:

[P]hysical disability, infirmity, ․ which is caused by bodily injury, birth defect or illness including ․ but not be limited to, any degree of paralysis, ․ lack of physical coordination, ․ or physical reliance on a ․ wheelchair, or other remedial appliance or device, ․ which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques․

[N.J.S.A. 10:5-5(q).]

Plaintiff's amended complaint alleged that he “has difficulty ambulating and uses a power scooter and cane for mobility,” and that defendants relocated his office from one that had been “in close proximity to a bathroom and which had no doors or other obstructions, to an office on the sixth floor of the building, which is no longer in close proximity to the bathroom and does not have the same reasonable accommodations as [his] prior office.”   Plaintiff also asserted that after being stranded on the sixth floor during a fire alarm he requested defendants undertake all necessary steps to assure that he will be provided with assistance to evacuate the building in the future, but defendants have refused to accommodate his request.   Applying our liberal standard of review on a Rule 4:6-2(e) motion, we are also satisfied that plaintiff sufficiently alleged a claim of handicap discrimination under the LAD to withstand the motion.

Defendants argue that plaintiff failed to assert a disability discrimination claim under the Americans with Disabilities Act of 1990(ADA), 42 U.S.C.A. §§ 12101 to 12213.   We agree.   Although plaintiff alleges that defendants had failed to prepare a Section 504 plan for him, the only law plaintiff alleges defendants violated in his amended complaint is the LAD. Indeed, plaintiff submitted in his brief that “[t]he lower court erred in dismissing this act of discrimination as merely a possible separate claim under the Americans with Disabilities Act. The lower court's finding is clear error in that it fails to recognize a refusal to accommodate a disability is a violation of the LAD.”

Accordingly, we reverse and remand.   Our reversal of the trial court's decision, dismissing plaintiff's amended complaint for failure to state a cause of action upon which relief can be granted, does not preclude defendants from filing a motion for summary judgment after completion of discovery.

FOOTNOTES

FN1. Respondent Fredrick P. Nickles was incorrectly plead in the complaint as Frederick P. Nickles..  FN1. Respondent Fredrick P. Nickles was incorrectly plead in the complaint as Frederick P. Nickles.

FN2. Although not contained in the appellate appendix, plaintiff filed a motion seeking to enforce that part of his 2002 settlement requiring ACBOE pay him $5,000 more than any other assistant superintendent in the district.   The trial court granted plaintiff's motion on February 25, 2008..  FN2. Although not contained in the appellate appendix, plaintiff filed a motion seeking to enforce that part of his 2002 settlement requiring ACBOE pay him $5,000 more than any other assistant superintendent in the district.   The trial court granted plaintiff's motion on February 25, 2008.

FN3. Because plaintiff limited his arguments on appeal to the dismissal of his retaliation and handicap discrimination claims, we will treat the allegations of a hostile work environment in his amended complaint as evidence that he suffered an adverse employment action as part of his retaliation claim, not as an independent basis for relief..  FN3. Because plaintiff limited his arguments on appeal to the dismissal of his retaliation and handicap discrimination claims, we will treat the allegations of a hostile work environment in his amended complaint as evidence that he suffered an adverse employment action as part of his retaliation claim, not as an independent basis for relief.

FN4. “504 plan” appears to be a reference to § 794(a) of the Federal Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-796, and to §§ 12132 and 12133 of the Americans with Disabilities Act of 1990(ADA).  42 U.S.C.A. §§ 12101 to 12213.   Section 794(a) of the Rehabilitation Act provides in pertinent part:  “No otherwise qualified individual with a disability ․ shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance․”  Section 12132 of the ADA largely parallels § 794(a) of the Rehabilitation Act, except its applicability is not contingent upon the public entity receiving federal funding.  42 U.S.C.A. 12132..  FN4. “504 plan” appears to be a reference to § 794(a) of the Federal Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-796, and to §§ 12132 and 12133 of the Americans with Disabilities Act of 1990(ADA).  42 U.S.C.A. §§ 12101 to 12213.   Section 794(a) of the Rehabilitation Act provides in pertinent part:  “No otherwise qualified individual with a disability ․ shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance․”  Section 12132 of the ADA largely parallels § 794(a) of the Rehabilitation Act, except its applicability is not contingent upon the public entity receiving federal funding.  42 U.S.C.A. 12132.

PER CURIAM