DEIRDRE FOREMAN VS. RAMAPO COLLEGE OF NEW JERSEY (L-6937-16, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2320-18T3
DEIRDRE FOREMAN,
Plaintiff-Appellant,
v.
RAMAPO COLLEGE OF
NEW JERSEY,
Defendant-Respondent.
_________________________
Submitted December 16, 2019 – Decided March 9, 2020
Before Judges Sabatino, Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-6937-16.
Christopher C. Roberts, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Agnes I. Rymer, Deputy Attorney General,
on the brief).
PER CURIAM
Plaintiff Deirdre Foreman sued her employer, Ramapo College of New
Jersey (Ramapo), alleging she was denied a promotion: (1) because she is
African-American, in violation of the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -42; and (2) in retaliation for issuing a report concluding the
college's admissions practices were discriminatory, in violation of the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.1
Foreman appeals the Law Division's orders granting summary judgment in favor
of Ramapo and dismissing her claims. For the reasons that follow, we affirm.
I.
We summarize the following facts from the record, viewing "the facts in
the light most favorable to [Foreman,] the non-moving party." Globe Motor Co.
v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)).
Foreman's Employment at Ramapo
Foreman first became employed by Ramapo in 1998. In August 2014, she
was serving as the Associate Director for the college's Educational Opportunity
1
Foreman also made claims for breach of contract and unjust enrichment which
were settled prior to this appeal and are not discussed in this opinion.
A-2320-18T3
2
Fund (EOF)2 program, when the director of the program unexpectedly died. At
the request of the program's supervisor, Dr. Eric Daffron, Vice-Provost for
Curriculum & Assessment, Foreman entered into an agreement to serve as
Acting EOF Director from September 6, 2014 to April 3, 2015, in consideration
for a stipend, representing roughly five percent of her salary. Thereafter,
Foreman contends Dr. Daffron advised her that a national search would be
conducted to find a permanent replacement for the EOF Director position, and
she would not be considered for the job.
After the agreement to serve as the Acting EOF Director had expired,
Foreman continued to serve in the temporary position, when, due to a
reorganization of Ramapo's departments effective July 1, 2015, the EOF
program was placed under the supervision of Chris Romano, Vice-President for
Enrollment Management & Student Affairs.
On July 2, Romano emailed Foreman directing her to prepare a report,
based on an earlier conversation, "that shows the profile of each incoming EOF
class for each of the last three years and where the students came from." A
2
The EOF was established by our Legislature to "identify, recruit and provide
financial assistance to needy students who are residents of [New Jersey] in order
that they may be able to attend institutions of higher education." N.J.S.A.
18A:71-31(a).
A-2320-18T3
3
month later, Foreman emailed Romano her report ahead of a meeting to discuss
her findings. The report states in pertinent part:
In comparing the EOF [d]emographic [p]rofile reports
from the years of 2006 thr[ough] 2015 the student
profiles do not appear to be representative of the
mission and intent of the EOF program statewide.
Overall there have been significant demographic
changes in the profile of students that have been
recruited.
....
2. The [g]ender data indicate[s] that there consistently
ha[s] been a greater number of female [accepted
students] [as] opposed to males. It appears that there
are twice as many females versus male [accepted
students] over the course of this time span. With
particular attention to the African[-]American and
Latino male population[s] th[ese] group[s] continue[]
to be underrepresented in the program. There has been
a significant decrease in the recruitment of these
students and thus they are drastically underrepresented
within the EOF program.
3. The [e]thnic/[r]acial data for the [accepted students]
who choose to report indicates a significant change.
....
4. The [c]ounty data indicates that there has been a
significant increase in the number of [accepted
students] from Bergen County (the wealthiest county in
the state).
....
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4
The remaining counties in New Jersey are significantly
lower with numbers in the single digits.
5. The [t]own data indicates that many of the towns
from where students are now being recruited are not
considered to be economically distressed areas within
the [S]tate of NJ.
6. The [h]igh [s]chool data indicates that in more recent
years, the high schools from which most [accepted
students] are graduating are not in economically
distressed areas within the state.
On August 3, Romano thanked Foreman for her report but replied that he
was more interested in "an executive summary[,]" asking her what "the big
takeaways" from the data were and to identify which "data points illustrate
that[.]" He followed up with another email two days later rescheduling their
meeting and asking Foreman to supplement her report to include the following:
1.) When we look at the counties and the changes, we
need to look at the [enrolled students] number in
relation to the total population from the county. For
instance, we could say there aren't a lot of EOF students
from Middlesex [C]ounty, but there could be few
regular students coming from Middlesex as well.
2.) I think we need to look at not just [accepted
students] but actual [enrolled students] when it comes
to race/ethnicity[.]
3.) For town and high school, I think it would be
helpful for you to identify some of the towns that you
think are underrepresented so we can do a comparison.
A-2320-18T3
5
Foreman's Candidacy for the EOF Director's Position
On August 17, Romano reinitiated the search for a new EOF Director,
which had previously begun under Dr. Daffron. Romano looked over Foreman's
credentials and advised her to apply for the position. 3 Foreman did so.
Ramapo's hiring policy required a search committee to be assembled,
"comprised of a diverse representation of units interacting with the position."
The guidelines required the search committee to compile an unranked list of at
least three candidates, including their respective strengths and weaknesses, and
to forward that list to the hiring manager, Romano, who would conduct reference
checks and make an offer to the candidate he felt was best for the position.
Romano determined he needed to identify a search committee chairperson to
manage the logistics of the search and then identify other individuals who "have
an in depth knowledge to the search so that you are getting a well[-]rounded
perspective on who the best candidate for the position would be."
Romano appointed a search committee chaired by the school's Director
for Student Involvement and included: (1) the Dean of the School of Theoretical
and Applied Science, who was a long-time and founding faculty member of
3
Foreman was a Ph.D. candidate at the time, but the position only required a
bachelor's degree supplemented by a master's degree.
A-2320-18T3
6
Ramapo; (2) the Financial Aid Liaison to the EOF Program, who participated in
determining the financial eligibility of EOF applicants; (3) the Admissions
Liaison to the EOF Program, who participated in recruiting and admitting EOF
students; (4) a Ramapo EOF senior; and (5) the Coordinator of Ramapo's First
Year Experience Program. The committee, which was approved by the college's
Office of Affirmative Action, was comprised of two white males, two Hispanic
females, one white female, and one Hispanic male.
The search committee conducted a round of telephone interviews and
identified four candidates who were invited to campus for in-person interviews
and presentations. Foreman was not among the candidates chosen for a second
round of interviews, but Romano directed the search committee to add her to the
list given her long service to the program and her experience as Associate
Director.
After completion of the five in-person interviews and presentations, the
committee recommended three unranked finalists to Romano, with Foreman not
among them. Barbara Harmon-Francis, an African-American woman, one of
A-2320-18T3
7
the final three candidates, was ultimately offered the position by Romano, which
she accepted.4
Foreman's EEOC Complaint and Investigation
After Foreman was told she was not the successful candidate she went on
extended leave and thereafter filed a complaint with the Equal Employment
Opportunity Commission (EEOC), alleging the search committee had been
stacked against her and she was discriminated against.
To support her claim, Foreman included an email from Ramapo faculty
member Michelle Johnson alleging "the search committee was stacked with
individuals who wanted a fresh perspective for the EOF program," pointing out
that "[s]earch [c]ommittees receive instruction/direction from the [h]iring
[m]anager," and in this case the hiring manager was Romano. Johnson also
stated in the email that an unnamed student member of the search committee
told her "(1) [Foreman] was not liked by the EOF students; (2) [Foreman] did
4
Harmon-Francis had previously worked in the EOF program at Rutgers
University. When asked about her qualifications compared to Foreman's,
Romano stated that while they previously held different job titles, their work
experience did not differ much.
A-2320-18T3
8
not submit [an] application for the position; and (3) [Foreman] was allowed to
interview for the position, but really was not a viable candidate."
The student committee member, Monica Cuello,5 identified Johnson as
her sorority's faculty advisor whom she would seek advice from "pretty often."
Cuello denied telling Johnson that Foreman was not liked by the EOF students,
but instead told her the students did not like the program changes that occurred
when Foreman became Acting EOF Director. Cuello also denied telling Johnson
that Foreman did not submit an application or that she was not a viable
candidate.
Cuello further described the EOF program as "[v]ery family oriented"
until the death of the EOF Director, but when Foreman took over "it wasn't as
united." She said the program "was very disorganized and a lot of people, a lot
of staff were leaving, so a lot of people didn't have guidance during that period.
It was very transitional." Cuello also said she thought it would be helpful to
have a father figure in the office.
5
Cuello was selected to serve on the committee because another EOF female
student declined to serve due to her busy work schedule. Romano indicated he
selected Cuello for the search committee because the EOF program regularly
highlighted her for academic achievement, and he thought she would be a great
representative of the EOF student population.
A-2320-18T3
9
As part of the EEOC investigation, an interview of search committee
member Jose Vallejo, Admissions Liaison for the EOF program, was detailed in
a report.6 Vallejo acknowledged Foreman's note taking ability, and revealed he
was once approached by Foreman's predecessor to discuss the lack of diversity
in the EOF's recruitment efforts. In addition, when asked if he perceived
militancy from Foreman, Vallejo offered:
[O]ften her dress and hairstyles may cause some
persons to draw a conclusion. To some people it may
come across as "militant". To [me] it is working with
the audience you have.
....
"Do I think that [Foreman] would have made a great
Director I don't know." [I]n the [phone] interview, she
came across as nervous and chatty. Many members felt
that some of the questions were not answered.
....
"[Foreman's] strengths was [sic] working with students
and maybe the administrative side is not her strength."
6
Romano stated he chose Vallejo for the committee because he was responsible
for recruiting every student that applies to the program. Vallejo was also a
Ramapo EOF graduate, which gave him intimate knowledge of the program.
A-2320-18T3
10
Foreman's Lawsuit & Dismissal
Foreman alleges she was discriminated against based on her race in
violation of the LAD and was unlawfully retaliated against in violation of CEPA.
Ramapo moved for summary judgment on both claims and the motion judge
issued an order and written decision on December 7, 2018, granting summary
judgment in part by dismissing Foreman's LAD claim but denying summary
judgment on her CEPA claim.
In regards to the LAD claim, the judge found the usual burden shifting
analysis required by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973) was not controlling because "the person[, Harmon-Francis,] chosen for
the position allegedly at [p]laintiff's expense due to racial discrimination was a
similarly situated person, that is, an African[-]American woman." The judge
determined that because the McDonnell Douglas test did not apply, Foreman
was required by Williams v. Pemberton Twp. Pub. Schs., 323 N.J. Super. 490
(App. Div. 1999), to present facts overcoming the presumption of non-
discrimination. The judge continued that the only factual scenario with any
merit would be if Ramapo hired another person in the same class as Foreman to
disguise discrimination against her. But the judge found that she failed to
A-2320-18T3
11
establish those facts by only arguing she was discriminated against because she
was allegedly more qualified for the position than Harmon-Francis.
Regarding the CEPA claim, the judge noted that in order for Foreman to
establish a prima facie retaliation claim under N.J.S.A. 34:19-3(a)(1), she must
show:
1. That she reasonably believes that her employer's
conduct was violating either a law, or regulation
promulgated pursuant to law;
2. that she performed a "whistle-blowing" activity
described in N.J.S.A. 34:19-3(a);
3. that an adverse employment action was taken against
her; and
4. that a causal connection exists between the whistle-
blowing activity and the adverse employment action.
Ramapo challenged Foreman's evidence as to the second and fourth elements.
The court, discussing the second element, found the emails between Foreman
and Romano "viewed in the light most favorable to [p]laintiff, support that [she]
was complaining not only of a violation of a public policy but of a failure to
adhere to admissions criteria under [N.J.A.C. 9A-11.2.2(b)]." The judge,
however, did not address the fourth element – the causal connection between
Foreman's emails to Romano and the alleged bias of the search committee.
A-2320-18T3
12
Picking up on this shortcoming, Ramapo filed a motion for
reconsideration on December 12, requesting argument on short notice due to the
pending January 7, 2019 trial date. The motion was scheduled for December
21, the only scheduled motion day before the trial date. 7 The same day Ramapo
filed its motion for reconsideration, the court contacted Foreman's counsel by
leaving a voicemail directing that opposition be submitted as soon as possible.
Foreman filed her opposition the next day on December 13, in order to comply
with "the [eight] day requirement with a December 21 . . . return date." She did
not object to the judge deciding the motion on short notice.
On December 21, after hearing argument, the judge granted summary
judgment in favor of Ramapo and dismissed Foreman's CEPA claim, stating:
I don't think a rational juror could find, taking the facts
and inferences in the light most favorable to [p]laintiff
that . . . there was, in fact, the animus there. The causal
connection . . . doesn't exist. The search committee
acted independently of Mr. Romano in the sense of
doing what they did, did not have knowledge of the
whistle blowing. The allegation of stacking [the search
committee] just doesn't stand up to what . . . I think a
reasonable jury could find. It's just haphazard facts and
disparate facts joined together to try to build a
foundation which I don't think exists.
This appeal ensued.
7
Due to the court's holiday recess, there was no motion day on January 4, 2019.
A-2320-18T3
13
II.
Before addressing Foreman's arguments contesting summary judgment
dismissal of her LAD and CEPA claims, we discuss the well-established
principles governing our review of a trial judge's summary judgment order.
We review a ruling on a summary judgment motion de novo, applying the
same standard governing the motion court. N.J. Transit Corp. v. Certain
Underwriters at Lloyd's London, 461 N.J. Super. 440, 452 (App. Div. 2019)
(quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Our court rules provide that
a motion judge should grant summary judgment when "the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law." R. 4:46-2(c). In deciding whether a genuine issue of material
fact exists, "the motion judge must 'consider whether the competent evidential
materials presented, when viewed in the light most favorable to the non-moving
party, are sufficient to permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party.'" Green v. Monmouth Univ., 237 N.J.
516, 529 (2019) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). However, this court owes "no deference to the motion judge's
A-2320-18T3
14
conclusions on issues of law." Bove v. AkPharma Inc., 460 N.J. Super. 123,
138 (App. Div. 2019) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
A.
Considering these principles, we turn first to the dismissal of Foreman's
LAD claim. She contends the motion judge erred in determining racial
discrimination could not have occurred because the person Ramapo selected to
fill the EOF Director's position is of the same protected class as Foreman, an
African-American woman. Citing Andersen v. Exxon Co., U.S.A., 89 N.J. 483,
492 (1982), Foreman contends she established a prima facie case of racial
discrimination under McDonnell Douglas, 411 U.S. at 802. Foreman argues
Ramapo hired an African-American woman to insulate itself from a race
discrimination claim, and that racial discrimination occurred because Ramapo
hired "an objectively less qualified black woman . . . solely because of her race."
To establish a prima facie case for a failure to hire or promote under the
LAD, a plaintiff must show, by a preponderance of the evidence that she "(1)
belongs to a protected class, (2) applied and was qualified for a position for
which the employer was seeking applicants, (3) was rejected despite adequate
qualifications, and (4) after rejection the position remained open and the
A-2320-18T3
15
employer continued to seek applications for persons of plaintiff's
qualifications." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210 (1999)
(internal quotations removed) (citing Erickson v. Marsh & McLennan Co., 117
N.J. 539, 550 (1990)). Once a prima facie case is established, a presumption of
discrimination arises and the burden then shifts to the defendant to show a
"legitimate, non-discriminatory reason" for its employment action. McDonnell
Douglas, 411 U.S. at 802; see also Zive v. Stanley Roberts, Inc., 182 N.J. 436,
447 (2005). The plaintiff must then show that this reason is merely a pretext for
discrimination. McDonnell Douglas, 411 U.S. at 804.
As to the fourth element, we find instructive Williams, 323 N.J. Super. at
501. There, the plaintiff, who was an African-American woman, filed LAD and
CEPA claims against her employer after her teaching contract was not renewed
due to unsatisfactory performance. Id. at 492, 496. The plaintiff was
immediately replaced by another African-American woman. Id. at 497.
In making our analysis on the LAD claim, we stated, "New Jersey courts
have generally begun their analyses of the elements of a discrimination claim by
turning to McDonnell Douglas and by then making appropriate adjustments in
light of the factual underpinnings of the particular plaintiff's claim." Id. at 498.
Our courts and the federal courts have similarly struggled with the fourth prong,
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16
"particularly whether replacement by an individual outside the protected class
is a necessary element." Id. at 501. We concluded it is
unwise to require a plaintiff to establish unfailingly as
part of the prima facie case that plaintiff was replaced
by an individual outside the plaintiff's protected class.
The appropriate fourth element of a plaintiff's prima
facie case requires a showing that the challenged
employment decision (i.e., failure to hire, failure to
promote, wrongful discharge) took place under
circumstances that give rise to an inference of unlawful
discrimination.
[Id. at 502 (citing Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981)).]
In this case, we conclude there is no dispute that Foreman satisfied the
first three elements of the test to establish a prima facie case of discrimination.
Thus, we must determine whether she satisfies the fourth element of the test,
thereby shifting the burden to Ramapo to show its hiring decision was based on
legitimate, non-discriminatory reasons. We need look no further than the
motion judge's explanation in granting summary judgment to conclude that,
considering the facts in the light most favorable to Foreman, she has not satisfied
the fourth element of the test.
The judge reasoned that because an African-American woman was
ultimately hired for the position, no presumption of discrimination arose, as it
A-2320-18T3
17
otherwise would have if Foreman had met her prima facie burden under the
McDonnell Douglas test. The judge continued:
In order for [Foreman] to rebut the presumption of non-
discrimination, [she] must establish "a logical reason to
believe that the decision rests on a legally
impermissible ground," such as race discrimination.
Carson v. Bethlehem Steel Corp., 82[ ]F.3d 157, 159
(7th Cir. [19]96); Williams[,] 323 N.J. Super. 490 . . . .
The one ground potentially applicable to the factual
scenario herein is that Ramapo . . . hired another person
in the same class to disguise discrimination against
[Foreman]. See Miles v. Dell, Inc., 429 F.3d 480 (4th
Cir. 2005). [Foreman] bears the burden, on a summary
judgment standard . . . to establish this. Here,
[Foreman's] argument in opposition to the LAD claim .
. . centers on the claim that the person hired . . . was
less qualified.
....
Counsel for [Foreman] advocates that the McDonnell
Douglas . . . burden shifting analysis applies. Yet, as
noted supra, such is not the case.
....
Even taking all reasonable inferences in the light most
favorable to [plaintiff], [she] has not presented any
facts to establish a discriminatory or biased search
process.
....
When one analyzes the proffered reasons by [Foreman]
as to bias on the part of . . . Vallejo and . . . Cuello, they
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18
do not rise beyond suspicio[n] and innuendo and are not
competent facts. Whether or not . . . Cuello preferred a
male, the facts demonstrate that a woman was hired.
The claim of [Foreman] as to . . . Vallejo – some may
view [Foreman] as militant – does not demonstrate that
this was Mr. Vallejo's view nor that it in any way
impacted the search process.
Accordingly, summary judgment dismissal of Foreman's LAD claim was
appropriate because, as a matter of law, Foreman failed to establish a prima facie
case of racial discrimination.
B.
Ramapo's summary judgment motion to dismiss Foreman's CEPA claim
was initially denied by the judge but was subsequently granted on its
reconsideration motion. Foreman maintains the judge gave her insufficient time
to oppose the reconsideration motion and misapplied the law in reaching his
decision. We first address her procedural contentions, then her substantive
arguments.
1. Time Given to Oppose Reconsideration Motion
Foreman contends she was prejudiced when the judge decided to hear
Ramapo's reconsideration motion on short notice without any rational reason.
She was directed by the judge to file her opposition "as soon as possible because
oral argument" was scheduled nine days later. She did so without objection.
A-2320-18T3
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She now claims she did not have enough time to adequately respond. She also
maintains the judge gave no rational explanation for the truncated process,
thereby constituting an abuse of discretion.
Because Foreman did not seek additional time to submit her opposition to
Ramapo's reconsideration motion, and did not contend before the motion judge
that she was prejudiced because she needed more time to submit opposition, we
will not consider her contentions raised for the first time before us as they do
not "'go to the jurisdiction of the trial court or concern matters of great public
interest.'" Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (quoting Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Nevertheless, for the sake of
completeness, our consideration of her arguments establishes they have no
merit.
Under Rule 1:6-3(a), the return date of Ramapo's reconsideration motion
would normally require sixteen-day notice "unless otherwise provided by court
order . . . ." (Emphasis added). Moreover, requiring Foreman to submit her
opposition "as soon as possible because oral argument" would be held nine days
later, at the only available motion date before the scheduled trial date, was
within the judge's authority. The same rule provides, "any opposing . . .
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objections . . . shall be filed and served not later than [eight] days before the
return date unless the court relaxes that time.” Ibid. (emphasis added).
Recognition of the judge's authority to alter a motion's return date and the
submission of opposition was thoroughly addressed by our Supreme Court in
Lombardi v. Masso, 207 N.J. 517, 534-37 (2011), where it held:
It is well established that "the trial court has the
inherent power to be exercised in its sound discretion,
to review, revise, reconsider and modify its
interlocutory orders at any time prior to the entry of
final judgment." Johnson v. Cyklop Strapping Corp.,
220 N.J. Super. 250, 257 (App. Div. 1987) (emphasis
added). See also Marconi Wireless Telegraph Co. of
Am. v. United States, 320 U.S. 1, 47 (1943) (finding
trial court has "power at any time prior to entry of its
final judgment . . . to reconsider any portion of its
decision and reopen any part of the case"). That power,
which is rooted in the common law, see, e.g., Lyle v.
Staten Island Terra–Cotta Lumber Co., 62 N.J. Eq. 797,
805 (E & A 1901), is broadly codified in Rule 4:42–2,
which provides expansively that "any order . . . which
adjudicates fewer than all the claims as to all the parties
shall not terminate the action as to any of the claims,
and it shall be subject to revision at any time before the
entry of final judgment in the sound discretion of the
court in the interest of justice." (Emphasis added); see
also R. 1:7–4(b) ("Motions for reconsideration of
interlocutory orders shall be determined pursuant to R.
4:42–2."). That Rule, like the jurisprudence on which
it is based, sets forth no restrictions on the exercise of
the power to revise an interlocutory order.
Thus, for example, the stringent constraints imposed on
final judgments and orders under Rule 4:50–1 (grounds
A-2320-18T3
21
for relief from judgment) are wholly inapplicable to
interlocutory orders. See Johnson, [. . .] 220 N.J. Super.
at 257–64 (tracing history of Rule 4:50–1 and declaring
its "strict and exacting standards" do not apply to
interlocutory orders); see also R. 4:49–2 (permitting
reconsideration of final judgments or orders within 20
days of entry). Indeed, "[a] significant aspect of the
interlocutory nature of an order is its amenability to the
trial court's control until entry of final judgment
without interposition of considerations appropriate to
finality." Pressler & Verniero, Current N.J. Court
Rules, [cmt.] 3 on R. 4:42–2 (2011) (citing Ford v.
Weisman, 188 N.J. Super. 614 (App. Div. 1983)).
....
Although the rule is expansive, the power to reconsider
an interlocutory order should be exercised "only for
good cause shown and in the service of the ultimate
goal of substantial justice." Johnson, . . . 220 N.J.
Super. at 263-64[.]
....
Procedurally, where a judge is inclined to revisit a prior
interlocutory order, what is critical is that he provide
the parties a fair opportunity to be heard on the subject.
It is at such a proceeding that the parties may argue
against reconsideration and advance claims of
prejudice, e.g., missing witnesses, destroyed evidence.
Moreover, once the judge has determined to revisit a
prior order, he needs to do more than simply state a new
conclusion. Rather, he must apply the proper legal
standard to the facts and explain his reasons.
We conclude the judge did not misapply his discretion in the amount of
time he afforded Foreman to oppose Ramapo's reconsideration motion. We
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22
discern no prejudice to Foreman given the fact the judge was being asked on
reconsideration to analyze the fourth element of Foreman's CEPA's claim –
whether Foreman showed causality between her alleged whistleblowing and
Ramapo's alleged retaliation – that was omitted when he initially denied
summary judgment dismissal of the claim. This element had already been
briefed by Foreman in her opposition to summary judgment, so it was not as
though she was being asked to research and argue a new point of law. Further,
Foreman's silence in objecting to the judge's request to submit her opposition
"as soon as possible," and her submission the very next day undermines her
claim of prejudice before us. Hence, there was nothing irrational regarding the
schedule the judge set for Ramapo's reconsideration motion.
2. Reconsideration Motion Decision
Foreman contends the motion judge erred in determining that she did not
satisfy CEPA's fourth element in order to avoid summary judgment dismissal of
her CEPA claim.8 She cites to Estate of Roach v. TRW, Inc., 164 N.J. 598, 612
(2000) (citing Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super.
8
Foreman also argues the motion judge erred in granting Ramapo's motion for
reconsideration because he applied a summary judgment standard of review
instead of the standard used for reconsideration under D'Atria v. D'Atria, 242
N.J. Super. 392 (Ch. Div. 1990).
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543, 550 (App. Div. 1995)), which held a causal connection between a
whistleblowing activity and an adverse employment activity may be inferred
"based on the surrounding circumstances." She maintains she presented
evidence of a causal connection between her whistleblowing activity, disclosure
of Ramapo's discriminatory admissions, and the failure to promote her to EOF
Director. According to Foreman, Romano had a negative disposition toward her
candidacy due to her report of the college's discriminatory admissions practices
that can be imputed to the search committee, which he assembled.
In support, Foreman argues we should look to the persuasive reasoning in
Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990). There, the plaintiff had not
been fired by his supervisor, but by a "Career Path Committee." Id. at 400. The
plaintiff alleged that the committee's decision had been tainted by the
supervisor's prejudice and that the committee's deliberations had been brief and
perfunctory. Id. at 405. The Seventh Circuit held that if the committee acted as
a conduit of the supervisor's "prejudice–his cat's paw–the innocence of its
members would not spare the company from liability." Ibid.
According to Foreman, a causal connection can be inferred using a "cat's
paw" theory because Romano's bias against her due to her report of
discriminatory admissions practices can be imputed to the search committee
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which Romano assembled. In fact, Foreman maintains the motion judge
understood her causal connection contention when during summary judgment
argument he inquired, "[d]id they stack the deck basically," while attempting to
parse out the evidence which supported her claims of LAD or CEPA.
Based upon our examination of the record, there is no indication that
Romano was upset with Foreman's findings. His email communications reflect
only that he was looking for an executive summary and wanted her to
supplement her report by examining the number of minority high school students
in a particular county, not just the number of minority high school students
admitted into the EOF program. Nonetheless, even if we agree with Foreman's
theory that Romano was upset about her findings, there is no direct or
circumstantial evidence indicating any of the search committee members knew
about Foreman's report or her email communications with Romano regarding
the underrepresentation of African-American and Latino male students in the
EOF program. In addition, she has not shown that Romano assembled the search
committee with the intention that it would be biased against her.
Foreman's reliance on Shager is misplaced because in that case the
supervisor directed the committee to fire the plaintiff, id. at 400, and here, there
is no evidence Romano directed the committee not to recommend Foreman for
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the EOF Director's position. To the contrary, the record suggests the opposite.
Romano encouraged Foreman to apply for the position and he directed the search
committee to add her to the list of second round candidates when it had not
initially selected her. And there is no proof Romano employed some sort of
Machiavellian theory to get back at Foreman through the hiring process due to
her criticism of the college's admission practices. There is no evidence Romano
had Foreman apply to the EOF Director's position and then used the committee
members as his pawns, directing them to reconsider her candidacy then not
select her as a cover for his mission to retaliate against her.
In short, Foreman did not satisfy the fourth element of a CEPA claim
because the record reveals no evidence that Romano's alleged animus towards
Foreman, due to her claimed whistleblowing, caused the search committee not
to recommend her for the EOF Director's position. Thus, summary judgment
dismissal of her CEPA claim was consistent with the law.
Any argument made by Foreman that we have not expressly addressed is
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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