                                NOT FOR PUBLICATION WITHOUT THE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-3947-18T2

ANN FOX and THERESA
CAMPANA,

          Plaintiffs-Appellants,

v.

DGMB CASINO, LLC, d/b/a
RESORTS CASINO HOTEL,
BARBARA HULSIZER, and
MARK SACHAIS,

     Defendants-Respondents.
__________________________

                   Submitted April 2, 2020 – Decided August 17, 2020

                   Before Judges Alvarez, Suter and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Docket No. L-1029-16.

                   Jenna Marie Cook, attorney for appellants.

                   Cooper Levenson, PA, attorneys for respondents (Amy
                   E. Rudley and Jennifer B. Barr, on the brief).

PER CURIAM
      Plaintiffs Ann Fox (plaintiff) and Theresa Campana appeal the April 12,

2019 summary judgment order dismissing their complaint with prejudice. We

review the order de novo, considering the issues in a light most favorable to the

non-moving parties—plaintiffs—to determine whether there were genuine

issues of material fact precluding entry of summary judgment. Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying those standards, we

reverse and reinstate the Conscientious Employee Protection Act (CEPA) claim,

N.J.S.A. 34:19-1 to -14, the counts under the New Jersey Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the intentional infliction of

emotional distress (IIED).     However, we affirm dismissal of the loss of

consortium claim because plaintiffs did not argue that issue in their brief. Thus,

the CEPA, LAD and IIED claims are remanded to the trial court for appropriate

disposition.

                                     I.

      In May 2016, plaintiffs Fox and Campana filed a complaint in the Law

Division against defendants DGMB Casino, LLC d/b/a Resorts Casino Hotel

(DGMB), Barbara Hulsizer and Mark Sachais (defendants). Plaintiff alleged a

violation of CEPA (count one); a hostile work environment under LAD based

on gender, sexual orientation and age, and unlawful retaliation (count two); and


                                                                          A-3947-18T2
                                          2
IIED and the negligent infliction of emotional distress (NIED) (count three).

She requested compensatory and punitive damages for each count and an award

of counsel fees and costs. Plaintiff Campana alleged a loss of consortium (count

four), seeking damages, attorney's fees and costs. Defendants' answer included

separate defenses.

      The NIED claim was dismissed in November 2016 and the loss of

consortium claim was limited to the derivative IIED claim. Plaintiffs do not

appeal that order.

      The trial court dismissed the CEPA claim because plaintiff had not

suffered an adverse employment action. The LAD retaliation cause of action

was dismissed under N.J.S.A. 10:5-12(d) without discussion.              The court

dismissed the sexual orientation claim because there was no evidence Sachais

was aware of plaintiff's sexual orientation or that "[plaintiff] was treated in any

manner as a result of . . . sexual orientation . . . ." In considering age and gender

discrimination under N.J.S.A. 10:5-12(a), the court found plaintiff "cannot

establish any evidence of severe or pervasive harassment sufficient to alter

working conditions . . . . There was no adverse employment action targeting

[plaintiff]." The court also found no "reasonable fact-finder could conclude that

the workplace terms or conditions of employment were altered with regard to


                                                                             A-3947-18T2
                                         3
[plaintiff]." The IIED claim was dismissed because the court did not find the

elements were established.

      We discern the following facts from the record, viewing them in the light

most favorable to plaintiff. See Brill, 142 N.J. at 523. Plaintiff was employed

by DGMB as the director of security. She was sixty-two and married to plaintiff

Campana.    Plaintiff worked in the casino industry and specifically at that

property for thirty-seven years. The trial court found that as security director,

plaintiff "maintained . . . staffing mandates and legal compliance of [Division

of Gaming Enforcement (DGE)] regulations."         The court found "DGE set

mandatory minimum staffing requirements for security personnel," plaintiff was

to "submit monthly personnel rosters" to DGE and to "notify DGE if an

employee in a mandated staffing position changed their status, and how the

affected employee would be replaced." Plaintiff was aware the licensed entity

could "seek relief or change from regulated matters as well as staffing."

      In 2013, DGMB hired defendant Mark Sachais (Sachais) as Vice President

of Hotel Operations. Plaintiff first met Sachais in 2011, when he was working

with a consulting firm to evaluate operational efficiencies and cost savings for

DGMB, and they discussed potential savings within the security department.

Plaintiff recalled disagreeing with Sachais' recommended staffing reductions.


                                                                            A-3947-18T2
                                       4
Sachais testified in his deposition that plaintiff's responses to "everything were

you can't do that, I disagree . . . so pretty much everything was a negative

response."

      In February 2015, the security department was placed under Hotel

Operations, and plaintiff was required to report directly to Sachais. Plaintiff

acknowledged she started to make notes about their conversations because she

"felt it [was] necessary."    Sachais asked plaintiff to recommend staffing

reductions within the security department, telling her staffing would be cut one

way or another. She objected to staff reductions, believing that DGE regulations

required a mandatory minimum level of staffing at certain posts within the

casino. Plaintiff claimed she was required to report staffing levels to DGE

monthly, indicating whether the employee was full-time, part-time or on-call.

She notified DGE of changes in staffing status and replacements. She believed

that full-time positions needed to be replaced by full-time and part-time with

part-time. In her experience, DGE was not flexible about minimum staffing

requirements. When plaintiff advised Sachais in mid-February that two full-

time employees with mandated positions resigned, he wanted to replace them

with part-time or "on-call" positions, asking her to "hold-off" advising DGE

about the loss of the positions. She claims she contacted a person at DGE and


                                                                          A-3947-18T2
                                        5
advised that Sachais wanted her to withhold that two mandated positions had

been lost. Plaintiff acknowledged that four non-mandated positions were cut at

the time when she was reporting to Sachais. She also understood that the CEO

of the casino hotel would make any final decisions about staffing cuts.

      Sachais required plaintiff to meet with him weekly—after plaintiff

suggested it—and to let him know when she was on-site at DGMB. He told her

he planned to move her office to the operations floor of the casino although it

never had been located there. Sachais moved plaintiff's parking spot—that she

had for twenty years— and the parking spots of other personnel to a lot "several"

blocks away. She believed this placed her in danger because years earlier her

car had been vandalized when she could not park in the casino garage and

because her position as director of security left her open to attacks. Sachais

suggested taking away plaintiff's administrative assistant, referring to her as a

"luxury" although other directors had assistants. Under Sachais, plaintiff no

longer had the authority to hire employees; these functions were transferred to

subordinates. Plaintiff thought this was to exclude her from her department. She

acknowledged, however, that in 2010 she had delegated to shift managers "the

ability to keep or let go any person at any time" although she "[a]bsolutely" had

hired people after that.


                                                                          A-3947-18T2
                                       6
        Plaintiff claimed Sachais wanted to "weed out the fat and old female

security officers" because "what would these people do if something happened,"

and that DGMB needed to "get rid of these people." Plaintiff reported that he

said,

              [w]e need to get a force in here, we need to get back to
              youth enforcement people[,] in here, get rid of these
              girls, what are they going to do if something goes
              wrong.

                    ....

              And my reply was, they would observe and report, as is
              everyone's responsibility, we're not police officers.

Plaintiff related that "[Sachais] was going to give them physicals and . . . weed

them out." He "had Barbara Hulsizer 1 working on an attorney so that they do it

the right way." Plaintiff told Sachais she "would not be a part of that discussion"

and that she did not "know how that can be that you weed out fat, old females

without being a problem." Plaintiff believed all the comments also were directed

at her given her age.

        On March 11, 2015, plaintiff alleges Sachais told her to "fudge numbers"

by hiring full-time staff but scheduling them as part-time employees, and to omit

the numbers on a report detailing staff changes to DGE. He told her not to send


1
    Hulsizer was the Executive Director of Workforce Development for DGMB.
                                                                           A-3947-18T2
                                         7
the staffing report to DGE. Plaintiff objected. She told him that he was "causing

a problem for [her] career . . . , [her] reputation with the state." And, she

considered that manipulating the numbers on the report would be "criminal

behavior."

      Plaintiff said she felt sick and reported off for the rest of the day.

Thereafter, she applied for, and received, medical leave under the Family

Medical Leave Act (FMLA), N.J.S.A. 34:11B-1 to -16, until March 15, 2015.

At the end of her leave, she "voluntarily resigned" from her position. Her last

day of employment was March 15, 2015. She claims the position of director of

security then was filled by a male, who earned more than her.

      Plaintiffs appeal the April 12, 2019 summary judgment order raising these

issues:

             I.  THE TRIAL COURT ERRED WHEN IT
             DETERMINED THAT PLAINTIFF FAILED TO
             ESTABLISH SHE SUFFERED AN ADVERSE
             EMPLOYMENT ACTION AS A DIRECT RESULT
             OF HER PROTECTED WHISTLEBLOWING
             ACTIVITY.

             II. THE TRIAL COURT ERRED IN GRANTING
             SUMMARY JUDGMENT AS TO PLAINTIFF'S LAD
             RETALIATION AND LAD DISCRIMINATION
             CLAIMS   BECAUSE   PLAINTIFF  OPPOSED
             SACHAIS AND HULSIZER'S EFFORTS TO FIRE
             WOMEN BASED ON THEIR GENDER, AGE AND
             APPEARANCE AND BECAUSE PLAINTIFF

                                                                         A-3947-18T2
                                       8
            HERSELF SUFFERED DISCRIMINATION BASED
            UPON HER AGE, GENDER AND SEXUAL
            ORIENTATION.

                  A.    Plaintiff Established that She
                  Opposed Practices She Believed Violated
                  the LAD and Suffered Reprisals as a result.

                  B.    Plaintiff Established that She
                  Suffered      Severe   And   Pervasive
                  Harassment Sufficient to Alter Her
                  Working Conditions in Violation of
                  N.J.S.A. 10:5-12(a).

            III. THE TRIAL COURT ERRED IN GRANTING
            SUMMARY JUDGMENT TO DEFENDANTS
            BECAUSE     DEFENDANTS   INTENTIONALLY
            INFLICTED EMOTIONAL DISTRESS UPON
            PLAINTIFF ANN FOX.

            IV. THE TRIAL COURT ERRED WHEN IT
            GRANTED SUMMARY JUDGMENT IN FAVOR OF
            DEFENDANTS AS IT RELATES TO PLAINTIFF
            ANN FOX'S CLAIMS FOR PUNITIVE DAMAGES.

                                     II.

      We review a trial court's orders granting or denying summary judgment

under the same standard employed by the motion judge. Globe Motor Co. v.

Igdalev, 225 N.J. 469, 479 (2016). The question is whether the evidence, when

viewed in a light most favorable to the non-moving party, raises genuinely

disputed issues of fact sufficient to warrant resolution by the trier of fact, or

whether the evidence is so one-sided that one party must prevail as a matter of

                                                                         A-3947-18T2
                                           9
law. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,

224 N.J. 189, 199 (2016); see also Brill, 142 N.J. at 540. Our review is plenary.

Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (providing that an appellate court

reviews a summary judgment order applying the same standard as the motion

judge).

                                          A.

      Plaintiff alleges a cause of action under CEPA. CEPA was intended to

protect employees, encourage them to report illegal or unethical activities in the

workplace, and discourage employers from engaging in such conduct. Dzwonar

v. McDevitt, 177 N.J. 451, 461 (2003) (citing Abbamont v. Piscataway Twp.

Bd. of Educ., 138 N.J. 405, 431 (1994)). CEPA provides, in part that:

            An employer shall not take any retaliatory action
            against an employee because the employee does any of
            the following:

                   ....

            c. Objects to or refuses to participate in any activity,
            policy or practice which the employee believes:

            (1) is in violation of a law . . . ;

            (2) is fraudulent or criminal; or

            (3) is incompatible with a clear mandate of public
            policy concerning the public health, safety, or welfare
            or protection of the environment.

                                                                          A-3947-18T2
                                         10
              [N.J.S.A. 34:19-3.]

        To establish a prima facie case of retaliation under CEPA, a plaintiff must

show:

              (1) that he or she reasonably believed that his or her
              employer's conduct was violating either a law or a rule
              or regulation promulgated pursuant to law; (2) that he
              or she performed the whistle-blowing activity
              described in [N.J.S.A. 34:19-3(a), (c)]; (3) an adverse
              employment action was taken against him or her; and
              (4) a causal connection exists between the whistle-
              blowing activity and the adverse employment action.

              [Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div.
              1999); see also Carlino v. Gloucester City High Sch.,
              57 F. Supp. 2d 1, 35 (D.N.J. 1999).]

        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).

"[I]n order to be actionable, an allegedly retaliatory act must be 'sufficiently

severe or pervasive to have altered plaintiff's conditions of employment in an

important and material manner.'" El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J.

Super. 145, 176 (App. Div. 2005) (quoting Cokus v. Bristol-Myers Squibb, Co.,

362 N.J. Super. 245, 246 (App. Div. 2003)). A pattern of conduct by an

employer that adversely affects an employee's terms and conditions of

employment can qualify as retaliation under CEPA. Beasley v. Passaic Cty.,

                                                                           A-3947-18T2
                                        11
377 N.J. Super. 585, 609 (App. Div. 2005). Adverse employment action "can

include, . . . many separate but relatively minor instances of behavior directed

against an employee that may not be actionable individually but that combine to

make up a pattern of retaliatory conduct." Green v. Jersey City Bd. of Educ.,

177 N.J. 434, 448 (2003). "Although actions short of termination may constitute

an adverse employment action within the meaning of the statute, 'not everything

that makes an employee unhappy is an actionable adverse action.'" Cokus v.

Bristol-Myers Squibb, Co., 362 N.J. Super. 366, 378 (Law Div. 2002) (quoting

Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir.1997)).

      Defendants acknowledge the first two elements of the test were satisfied.

Plaintiff "reasonably believed . . . her employer's conduct was violating" DGE

reporting requirements. For the second factor, plaintiff arguably performed a

whistle blowing activity under N.J.S.A. 34:19-3(a), (c) by objecting to

eliminating any mandatory positions or "fudging" the reports to the DGE.

Plaintiff also told the DGE that Sachais did not want her to submit the mandatory

report. The issue, here, is whether the third factor—an adverse employment

action—was taken against plaintiff within the meaning of CEPA.

      Plaintiff contends the statute was satisfied by these allegations. She

argues her supervisor engaged in a pattern of retaliatory conduct and adverse


                                                                         A-3947-18T2
                                      12
employment action that stripped her of most of her duties. She was no longer

involved in hiring decisions. Her parking spot was relocated to a lot several

blocks away that exposed her to risk. She was threatened with the removal of

her assistant and relocation of her office, although neither actually occurred.

She described this as a de facto demotion. Sachais increased his supervision of

her, requiring her to report to him more frequently.

      We are required in this context to resolve doubts in plaintiff's favor. See

Brill, 142 N.J. at 523. Using that standard, we agree there were factual issues

about whether plaintiff was subject to an adverse employment action.

      In Green, the case proceeded to trial where the plaintiff alleged that for a

two-year period she was subjected to retaliatory acts for reporting a scheme that

she believed was fraudulent or illegal. 177 N.J. at 438. The plaintiff took

medical leave from her position. Id. at 440. A doctor diagnosed her with a

major depressive disorder and related the diagnosis to the situation at work.

Ibid. The case was tried before a jury that awarded judgment for the plaintiff

on the CEPA claim and punitive damages. Ibid. In analyzing the statute of

limitations against public entities, the Court noted that an

            "adverse employment action taken against an employee
            in the terms and conditions of employment" . . . can
            include . . . many separate but relatively minor
            instances of behavior directed against an employee that

                                                                          A-3947-18T2
                                       13
            may not be actionable individually but that combine to
            make up a pattern of retaliatory conduct.

            [Id. at 448 (citation omitted).]

      In Nardello v. Township of Voorhees, 377 N.J. Super. 428, 435 (App. Div.

2005), the plaintiff alleged retaliation actions that included not being able to

obtain certain training, being "coerced" to resign as a team leader, being denied

the ability to work on certain details, being "removed from the detective bureau"

and having his ability to supervise eliminated. He was not terminated, demoted

or suspended from his position. Id. at 433. The trial court dismissed his CEPA

claim. Id. at 430. We reversed the summary judgment order finding a genuine

issue of fact about whether there was a pattern of retaliatory conduct. Id. at 433.

We noted that "retaliatory action" under CEPA that did not involve discharge,

suspension or demotion "may nonetheless be the equivalent of an adverse

action." Id. at 433-34 (quoting Cokus, 362 N.J. Super. at 378).

      In Cokus, the plaintiff complained that her anonymity was not protected

when she discussed her concerns, her employer did not protect her from

"hostility and ostracism by her co-workers and superiors," they disregarded her

well-being, gave her a negative performance evaluation and never removed her

from the harassment nor the harassers. 362 N.J. Super. at 380-81. The court

did not find these amounted to an adverse employment action under CEPA. Id.

                                                                           A-3947-18T2
                                       14
at 390. This was not severe or pervasive enough to make a reasonable person

think their terms of employment had been altered or the working environment

was hostile.

      Here, although plaintiff was not terminated, transferred nor demoted from

her position, arguably there were a number of actions by her employer from

which a jury could infer she suffered retaliatory actions. Her parking spot and

others were changed to a lot three blocks away, but in her position as director of

security, the exposure may have entailed greater risk; she claimed no one

explained the move to her even though she had parked in the garage for twenty

years. Plaintiff's ability to hire staffing was removed and given to subordinates.

She may have delegated some of this in the past but under Sachais the hiring

function was removed. He also suggested her office might be relocated and her

assistant reassigned. She was required to report more frequently and to advise

when she was in the building, things that she had not been asked to do in the

past. All of these changes or threatened changes came within a month of Sachais

becoming her supervisor. On this record and at this stage of the proceeding,

there was a genuine issue of fact that she was subjected to an adverse

employment action.




                                                                          A-3947-18T2
                                       15
                                      B.

      Plaintiff alleges she was subjected to a hostile work environment in

violation of LAD based on her age, gender and sexual identity. She also alleges

she suffered unlawful retaliation because she opposed defendants' efforts to

remove women based on their age or gender.

      When reviewing LAD claims, we also consider the burden-shifting

framework established in McDonnell Douglas Corporation v. Green, 411 U.S.

792, 802-04 (1973), and adopted by our Supreme Court. See Battaglia v. United

Parcel Serv., Inc., 214 N.J. 518, 546 (2013); Andersen v. Exxon Co., U.S.A., 89

N.J. 483, 492-93 (1982). Under this framework,

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

            [Henry v. N.J. Dep't of Human Serv's, 204 N.J. 320, 331
            (2010) (quoting Dixon v. Rutgers, the State Univ. of
            N.J., 110 N.J. 432, 442 (1988)).]




                                                                       A-3947-18T2
                                      16
                                       i.

      The LAD addresses claims of a hostile work environment based on age,

sex or gender identity. Specifically, it is:

             an unlawful employment practice, or . . . an unlawful
             discrimination:

             (a) For an employer, because of . . . age, . . . affectional
             or sexual orientation, . . . sex, gender identity or
             expression . . . to discharge or require to retire, unless
             justified by lawful considerations other than age, from
             employment such individual or to discriminate against
             such individual in compensation or in terms, conditions
             or privileges of employment . . . .

             [N.J.S.A. 10:5-12(a).]

      To state a claim, plaintiff must show: (1) the complained-of conduct

would not have occurred but for the employee's age, gender or sexual identity;

(2) it was severe or pervasive enough that; (3) a reasonable person would

believe; (4) the conditions of employment were altered and the working

environment is hostile or abusive. See Lehmann v. Toys 'R' Us, Inc., 132 N.J.

587, 603-04 (1993); Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 24 (2002).

The parties' subjective response or subjective intent does not determine if there

is a hostile work environment. See Cutler v. Dorn, 196 N.J. 419, 431 (2008).

Rather, a court must consider the totality of the circumstances, including "the

frequency of the discriminatory conduct; its severity; whether it is physically

                                                                            A-3947-18T2
                                         17
threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee's work performance." Id., at 432

(quoting Green, 177 N.J. at 447).

      Plaintiff acknowledged that she did not advise her employer of her

sexuality identity. She submitted no evidence that any of the actions of which

she complains were animated based on her sexual identity. Therefore, we agree

with the trial court that summary judgment was appropriate, dismissing this

portion of plaintiff's complaint.

      For her claim of hostile work environment based on age and gender,

plaintiff alleged that Sachais "berated women in front of me constantly." He

showed open hostility to plaintiff and women her age by moving her parking

spot, removing her ability to hire staff, threatening to move her office and to

take away her assistant, requiring her to meet with him weekly, and calling other

people behind her back on certain issues. Plaintiff claims she was constructively

discharged.

      Some of what plaintiff complains about, by itself, might not constitute a

hostile work environment under LAD. Defendants contend the new parking

assignments were based on an employee's position in the organization not gender

or age.   Also, we cannot say that a supervisor, who wants to meet more


                                                                         A-3947-18T2
                                      18
frequently with his staff or know where they are, is creating a hostile work

environment based on a protected category. That said, there are allegations here

that Sachais wanted to replace older and heavier women in the security

department with younger people to have a "youth force." He wanted to require

women to meet certain physical performance standards. Sachais claimed he was

working with upper management to make sure this was done in an appropriate

manner. We reach no conclusion whether these allegations are true, but the

allegations are that age and gender were being targeted in the security

department and that plaintiff objected to that. When we consider that in a thirty-

two day period of time, plaintiff's ability to hire staffing was removed from her,

her long term parking spot was changed to an area that was less secure, she now

was more regularly supervised—even though she had no disciplinary history—

and older and heavier women were to be weeded-out, we think a reasonable

person could conclude that the conditions were severe or pervasive and that

plaintiff's conditions of employment were altered. Given the standards by which

we are to assess a motion for summary judgment—that we view the evidence in

a light most favorable to the non-moving party—we conclude the trial court

erred by dismissing this portion of plaintiff's claim.




                                                                          A-3947-18T2
                                       19
                                         ii.

      Plaintiff alleges a claim under LAD for unlawful retaliation.         Under

N.J.S.A. 10:5-12(d), it is unlawful for an employer:

                to take reprisals against any person because that person
                has opposed any practices or acts forbidden under [the
                LAD] . . . or on account of that person having aided or
                encouraged any other person in the exercise or
                enjoyment of, any right granted or protected by [the
                LAD].

                [N.J.S.A. 10:5-12(d).]
      To establish a prima facie case for a retaliation claim, a plaintiff must

show that "(1) [he or she] engaged in a protected activity known by the

employer; (2) thereafter [the] employer unlawfully retaliated against [him or

her]; and (3) [the employee's] participation in the protected activity caused the

retaliation."     Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 125 (2008)

(quoting Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995)).

Additionally, the plaintiff must show there was a reasonable, good faith basis

for the complaint that allegedly caused the employer to retaliate. Carmona v.

Resorts Int'l Hotel, Inc., 189 N.J. 354, 373 (2007).

      The test is fact sensitive and the court must review the totality of

circumstances presented. El-Sioufi, 382 N.J. Super. at 178. Many separate but

relatively minor instances of behavior directed against an employee that are not

                                                                           A-3947-18T2
                                          20
actionable individually may combine to show a pattern of retaliatory conduct

and constitute an adverse employment action. Nardello, 377 N.J. Super. at 435.

      We reverse this portion of the April 12, 2019 order, dismissing plaintiff's

LAD retaliation claim because the trial court provided no findings or legal

analysis. Although we review de novo an order granting summary judgment,

we cannot review the decision of the trial court on a blank slate. Estate of

Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301-02 (App. Div. 2018). Rule

1:7-4(a) requires that "[t]he court shall, by an opinion or memorandum decision,

either written or oral, find the facts and state its conclusions of law thereon . . .

on every motion decided by a written order that is appealable as of right . . . ."

This was not done, requiring reversal.

      Plaintiff alleged she objected to Sachais' statements about replacing old

and fat women, requiring women to take physicals to "weed them out" in order

to replace them with a "youth force." She claims that because she is the same

age that the comments also were directed at her. She claims that because she

objected, Sachais retaliated against her by moving her parking spot, increasing

supervision, removing her ability to hire staff, and threatening to move her office

and remove her assistant. Resolving doubts in plaintiff's favor as we must at




                                                                             A-3947-18T2
                                         21
this juncture, this is sufficient to satisfy the elements of a prima facie case of

retaliation under LAD. Thus, we reverse the order that dismissed this claim.

                                      C.

      Count three of the complaint alleged an IIED claim. To establish IIED, a

plaintiff must prove: the "defendant acted intentionally or recklessly," the

"conduct was 'extreme and outrageous,'" the conduct proximately caused the

plaintiff's emotional distress, and such distress was "so severe that no reasonable

[person] could be expected to endure it." Ingraham v. Ortho-McNeil Pharm.,

422 N.J. Super. 12, 19-20 (App. Div. 2011) (alteration in original) (quoting

Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366-67 (1988)).

      The conduct must be "so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community."        Id. at 20-21

(quoting Buckley, 111 N.J. at 366). Generally, "it is extremely rare to find

conduct in the employment context that will rise to the level of outrageousness

necessary to provide a basis for recovery . . . ." Griffin v. Tops Appliance City,

Inc., 337 N.J. Super. 15, 23-24 (App. Div. 2001) (quoting Cox v. Keystone

Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)).




                                                                           A-3947-18T2
                                       22
      We disagree with the trial court's dismissal of this claim. At this juncture

of the litigation, we are required to view the evidence in a light favorable to

plaintiff. In the thirty-two days she worked under Sachais' supervision, plaintiff

claims he wanted her to "fudge" reports to the DGE, made remarks about

women's appearance and age, wanted to implement physical tests for women to

weed them out when she herself would fit the age and gender categories, was

threatened with retaliatory conduct such as moving her office and removing her

assistant and had her parking assignment changed to a less secure location.

Plaintiff alleges Sachais spoke to her in a manner that was "gruff;" he "was

barking" at her and she felt she "was being bullied." Plaintiff submitted a report

from an examining psychologist that linked plaintiff's emotional distress to these

conditions. Looking at the totality of the circumstances alleged, we cannot say

there is an absence of material facts on the IIED claim.

                                     D.

      Plaintiff requested punitive damages in each count of the complaint where

she was seeking relief. She alleges Sachais created hostility and animus in the

workplace but that Hulsizer displayed "willful indifference" by not returning her

calls and also was assisting Sachais in developing a plan to weed out certain

"old" and "fat" women in the security department.


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      An employer can be held liable for punitive damages for violation of LAD

if upper management actually participated in the violative conduct or was

willfully indifferent to same. Lehmann, 132 N.J. at 624-25. "Our cases indicate

that the requirement [of willfulness or wantonness] may be satisfied upon a

showing that there has been a deliberate act or omission with knowledge of a

high degree of probability of harm and reckless indifference to consequences."

Rendine v. Pantzer, 141 N.J. 292, 314 (1995) (alteration in original) (quoting

Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)).

      Sachais was the director of operations and plaintiff's supervisor. Hulsizer

could be determined by the fact-finder as willfully indifferent if she was aware

of Sachais' conduct and did not intervene.        She might also be an active

participant if she was assisting in the development of a plan for Sachais. The

punitive damages claims, therefore, should not be dismissed at this time.

                                        E.

      We affirm dismissal of the loss of consortium claim by plaintiff Campana.

Although she is included as an appellant in the notice of appeal, the appeals brief

did not include any argument addressing her claim. Because this issue was not

raised in the merits brief, it is deemed waived. Gormley v. Wood-El, 218 N.J.

72, 95 n.8 (2014); Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub.


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Safety, Div. of Law, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (noting that

claims not addressed in merits brief are deemed abandoned); see Pressler &

Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020).

      The April 12, 2019 order is reversed except for dismissal of the loss of

consortium claim (count four)—which is affirmed. The case is remanded to the

trial court. We do not retain jurisdiction.




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