                                NOT FOR PUBLICATION WITHOUT THE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-1886-17T4

MARRISA TAYLOR-MUNGER,

          Plaintiff-Appellant,

v.

COUNTY OF UNION, UNION
COUNTY DEPARTMENT OF
CORRECTIONAL SERVICES,
KEVIN BURKERT, individually
and in his official capacity, and
BRIAN RIORDAN, individually
and in his official capacity,

     Defendants-Respondents.
_______________________________

                    Argued December 20, 2018 – Decided July 15, 2019

                    Before Judges Simonelli, Whipple and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Docket No. L-2708-15.

                    Tiana Gimbrone argued the cause for appellant
                    (Rinaldo and Rinaldo, attorneys; Matthew T. Rinaldo
                    and Tiana Gimbrone, on the brief).
            Steven H. Merman, Assistant County Counsel, argued
            the cause for respondents County of Union and Union
            County Department of Correctional Services (Robert E.
            Barry, Union County Counsel, attorney; Steven H.
            Merman, on the brief).

            Michael S. Simitz argued the cause for respondent
            Kevin Burkert (Kologi Simitz, attorneys; Michael S.
            Simitz, of counsel and on the brief).

            Christina M. DiPalo argued the cause for respondent
            Brian Riordan (LaCorte, Bundy, Varady & Kinsella,
            attorneys; Robert F. Varady and Christina M. DiPalo,
            on the brief).

PER CURIAM

      Plaintiff Marrisa Taylor-Munger appeals from three November 17, 2017

orders of the Law Division collectively granting summary judgment to

defendants Union County, Kevin Burkert, and Brian Riordan, and dismissing

plaintiff's claims under the New Jersey Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49. The trial court found plaintiff's claims were barred by

the two-year statute of limitations, N.J.S.A. 2A:14-2(a), and did not fall within

the continuing violation doctrine. We affirm.

                                        I.

      We derive the following facts from the evidence submitted by the parties

in support of, and in opposition to, the summary judgment motions, viewed in

the light most favorable to plaintiff. Elazar v. Macrietta Cleaners, Inc., 230 N.J.

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                                        2
123, 135 (2017). Plaintiff is a woman of Irish, German, Indian, and African-

American descent. At the times relevant to this appeal she was a corrections

officer at the Union County Jail. Burkert, a white male, was a sergeant at the

jail, a first-list supervisory position. His brother, who also worked at the jail,

was a delegate for PBA Local 199 (union) representing officers at the facility.

Riordan was the Director of the county's Department of Corrections. He had

disciplinary control and oversight of corrections officers at the jail.

      In June 2008, shortly after plaintiff was hired, she had a tense exchange

with Burkert. According to plaintiff, Burkert appeared before a group of newly

hired corrections officers and informed them that in order to stay in the good

graces of the union, they may not accept overtime hours for the first ninety days

of their employment. Plaintiff, whose mother was a supervisor at the jail,

challenged Burkert in front of the other officers, asserting that no prohibition on

overtime hours exists for new officers. She also inferred that Burkert needed

overtime hours to satisfy his alimony payments. Plaintiff alleged that Burkert

told her she was going against the union.

      In 2011, plaintiff ran for election to the position of trustee at the union.

She alleged Burkert told another employee that his brother would do everything

in his power to make sure plaintiff did not get any votes and would keep her


                                                                           A-1886-17T4
                                         3
from receiving an administrative position.       Plaintiff lost the election and

challenged the results, which upset members of the union. A union official

thereafter initiated an investigation into whether plaintiff was stealing county

time, which she alleged was in retaliation for her decision to appeal the election

results. Union officers accused plaintiff of illegally wearing a wire, and told

union members not to trust plaintiff because she was a rat. Plaintiff conceded

that other officers who challenged the union were treated in a similar manner.

      Plaintiff filed an internal harassment and hostile work environment

complaint with her employer based on her treatment by union officers. The

county began an investigation into Burkert and his brother. Plaintiff ultimately

withdrew the complaint and her appeal of the election results when the union

posted a letter that exonerated her of wrongdoing and declared her a union

member in good standing.

      After the issues with the union were resolved, plaintiff alleged that

Burkert continued to harass her. In October 2012, plaintiff met with Riordan to

complain about Burkert's behavior. Riordan advised plaintiff to file a report

with John Boles, the county's Affirmative Action Officer.

      On October 3, 2012, plaintiff filed a harassment complaint with Boles

alleging:


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                                        4
1.     On September 3, 2011, Burkert became angry
with plaintiff for failing to secure a piece of broken
metal on her post properly. Plaintiff was under the
belief that she could secure the metal without informing
her supervisor right away. However, Burkert told her
that she needed to call him immediately in such
circumstances. While out of view of other employees,
Burkert chastised plaintiff and told her he's "got her
ass" and that she would "fucking get it." Plaintiff stated
that she feared that he was going to harm her physically.
She was not disciplined for this incident, but stated that
she believed Burkert's behavior was due to her union
activities.

2.    On November 25, 2011, Burkert pulled another
officer off their post in order to inquire about plaintiff.

3.    On June 19, 2012, Burkert yelled and flailed his
arms at plaintiff for having pepper spray on her person
while on duty, which was a violation of county rules.
She was required to submit an operations report but was
not disciplined. Plaintiff felt afraid during the incident
because Burkert looked like he was losing control.

4.     On July 3, 2012, Burkert entered the booking area
even though he was not assigned there and stared at
plaintiff for five to ten seconds. Burkert did not speak
to plaintiff but told another officer to put his handcuffs
on his belt and then left the area.

5.     On July 24, 2012, plaintiff asked Burkert for
permission to move her car. He told her to stand by,
and later started screaming over the radio at plaintiff,
directing her to not to leave her post. An elevator had
been called to plaintiff's floor, which Burkert assumed
meant plaintiff had ignored his order.



                                                              A-1886-17T4
                            5
            6.     On August 18, 2012, Burkert entered plaintiff's
            work area in the booking office, which Burkert was
            known to not frequent often, and stared at her for five
            to ten seconds before leaving without incident.

            7.     On August 19, 2012, Burkert screamed at
            plaintiff because he erroneously believed she was
            improperly wearing pepper spray. Burkert told her not
            to get snippy with him when she demonstrated that she
            was not wearing pepper spray. Plaintiff stated that she
            was scared for her physical well-being because
            Burkert's behavior was aggressive and escalating.

            8.     On October 3, 2012, Burkert was assigned as
            plaintiff's direct supervisor in the medical unit. In an
            attempt to avoid working with Burkert, plaintiff tried
            switching assignments with another officer but Burkert
            denied the switch. During the shift, plaintiff was called
            to the shift commander's office. Burkert thought
            plaintiff had abandoned her post and screamed at her
            for not finding a replacement.

            9.     On October 4, 2012, plaintiff again wanted to
            switch her post to avoid Burkert, who was supervising
            her overtime assignment. She went over Burkert's head
            to the shift commander to obtain the switch because she
            knew Burkert would have denied the request. When
            Burkert found out about the switch, he attempted to stop
            it and gave plaintiff a verbal reprimand.

Plaintiff concedes Burkert never used racist or sexist language during these

encounters. She believes, however, that his animosity towards her stems from

her being a female who stood up for herself.




                                                                        A-1886-17T4
                                       6
      On September 13, 2013, Boles sent plaintiff the results of the

investigation. Although the investigation concluded that some of plaintiff's

allegations of harassment were unsubstantiated, it found other allegations were

proven. The county determined that Burkert's harassment was not based on

plaintiff's race or gender. Burkert received a thirty-day suspension and entered

into a "last chance" agreement with the county, which provided that any further

discipline would result in his termination.

      In light of the investigative findings, Riordan issued a directive that

Burkert not directly supervise plaintiff. Since the establishment of the directive,

plaintiff has never worked with Burkert as her supervisor, and she testified that

in those instances when Burkert was assigned as her supervisor, he was

immediately reassigned on her request.

      After issuance of the report but prior to the imposition of discipline,

plaintiff met with Riordan. He informed her that he was going to attempt to

terminate Burkert, but Burkert had rights with respect to termination and

discipline.

      Plaintiff alleged three incidents involving Burkert occurred while the

investigation was underway.      She acknowledged that she did report those

incidents to the county. According to plaintiff, on December 2, 2012, Burkert


                                                                           A-1886-17T4
                                         7
yelled at both plaintiff and another officer for abandoning their post. However,

plaintiff was properly relieved from her post, and once she demonstrated that

fact the incident ended.

        On January 3, 2013, plaintiff was assigned to the laundry. Burkert came

down and asked why inmates were not present. After plaintiff explained that

the inmates were still eating breakfast, Burkert lost his temper and called another

officer demanding that the inmates be brought to the laundry immediately.

Finally, on September 9, 2013, Burkert yelled over the radio at another officer

while plaintiff was present.

        Plaintiff alleged additional incidents         occurred after the county

investigation was complete. On December 30, 2013, Burkert entered the control

center, where plaintiff was present and wearing her suicide knife, and said that

he was going to start writing up officers who were not wearing a suicide knife.1

On March 11, 2014, while plaintiff was assigned to the medical unit, Burkert

pushed an inmate's face into a glass door and looked at plaintiff while doing so.

        On May 14, 2014, plaintiff filed a complaint with the Equal Employment

Opportunity Commission (EEOC). She alleged she was harassed by Burkert and

that the county failed to take appropriate disciplinary action against him.


1
    A suicide knife is a tool to cut a noose in the event of an inmate suicide attempt.
                                                                               A-1886-17T4
                                           8
      While the EEOC complaint was under investigation, plaintiff filed a

complaint with the county alleging continued harassment by Burkert. She

alleged Burkert overheard two officers discussing plaintiff's complaints against

him and ordered them to submit a report. She also alleged Burkert was filing

reports with her name in them when she had nothing to do with the situation s

detailed in the reports.    Plaintiff alleged that this demonstrated Burkert's

obsession with her.

      On December 2, 2014, plaintiff filed another complaint with the county.

She alleged that on October 20, 2014, Burkert was in the control center staring

at her through the glass. Plaintiff alleged she had to have another officer return

her keys to avoid Burkert. Additionally, plaintiff alleged that while she was

clocking out, Burkert appeared and stayed there in order to intimidate her.

      On March 3, 2015, Boles sent plaintiff the results of the investigation of

her internal complaints, concluding Burkert did not violate any county policy.

Boles stated that he doubted Burkert committed the alleged actions because he

was aware he was operating under a "last chance" agreement and "a reasonable

man would not jeopardize his job to engage in such an encounter as described[.]"

In addition, he concluded "Burkert was not attempting to harm or harass"

plaintiff and his conduct did not constitute harassment.


                                                                          A-1886-17T4
                                        9
      On December 14, 2014, the EEOC issued its final determination. It found

plaintiff was subject to discrimination because of sex and race, and retaliation.

In addition, the EEOC concluded that despite the county stating it took

appropriate corrective action, plaintiff continued to be subject to harassment in

an "egregious and threatening manner." The agency determined the county

failed to take effective remedial action against Burkert after receiving

complaints from plaintiff and other African-American female employees.

      Plaintiff alleged no instances of direct harassment by Burkert after 2014.

However, plaintiff alleged that Burkert is harassing coworkers who are her

friends in order to get to her. At her deposition, plaintiff conceded she has no

proof that Burkert's interactions with these officers are motivated by a desire to

harass her, or that he even knows they are plaintiff's friends.

      On July 22, 2015, plaintiff filed a complaint in the Law Division alleging

Burkert harassed her based on race and gender, and as a form of retaliation, on

a continuous and regular basis since May 2011 in violation of the LAD. She

alleged that Riodan and the county aided and abetted Burkert by failing to take

sufficient measures to discipline him and protect her from his harassment.

Plaintiff also alleged claims of intentional infliction of emotional distress,

common law assault, negligence, reckless or intentionally deficient supervision


                                                                          A-1886-17T4
                                       10
and retention, violation of terms of employment, and breach of covenant of good

faith and fair dealing. She sought compensatory and punitive damages.

      After the close of discovery, defendants moved for summary judgment.

On November 27, 2017, the trial court issued an oral opinion granting their

motions. The court concluded that plaintiff's claims were time-barred. Noting

that the complaint was filed on July 22, 2015, and that claims under the LAD

are subject to a two-year limitations period, the court examined each incident

alleged to have taken place after July 22, 2013, and determined that plaintiff

failed to produce proof suggesting any of the incidents were based on her race

or gender, or constituted retaliation under the LAD. The court instead found

that the only evidence in the record of motive was Burkert's animus towards

plaintiff's union activities and her challenge to the results of the union election.

      The court found just one allegation "that would remotely suggest"

discriminatory acts by Burkert based on plaintiff's race or gender: her June 2012

encounter with Burkert regarding plaintiff wearing a can of pepper spray while

on duty. Plaintiff alleged that Burkert did not have the same reaction to white

female employees or male employees who also had pepper spray in the jail. This

event, however, took place prior to July 22, 2013, and was, therefore, time

barred. The court concluded that because plaintiff produced no evidence of


                                                                            A-1886-17T4
                                        11
discrimination after July 22, 2013, the continuing violation doctrine did not

permit the late filing of claims related to the June 2012 incident.

      On November 17, 2017, the trial court entered three orders, each granting

summary judgment in favor of one of the defendants. 2 This appeal followed.

                                        II.

      Plaintiff argues the trial court erred in finding her LAD claims were time-

barred, misapplied the continuing violation doctrine, and failed to recognize the

cumulative pattern of ongoing harassment she suffered directly related to her

race and gender. We disagree.

            We review [a] motion for summary judgment using the
            same standard applied by the trial court––whether, after
            reviewing "the competent evidential materials
            submitted by the parties" in the light most favorable to
            [the non-moving party], "there are genuine issues of
            material fact, and, if not, whether the moving party is
            entitled to summary judgment as a matter of law."

            [Grande v. Saint Clare's Health Sys., 230 N.J. 1, 23-24
            (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38
            (2014)).]


2
  The court also granted summary judgment in favor of defendants on plaintiff's
common law claims. Plaintiff does not address those claims in her brief. We
therefore deem any arguments with respect to those claims waived. "[A]n issue
not briefed is deemed waived." Pressler & Verniero, Current N.J. Court Rules,
cmt. 5 on R. 2:6-2 (2019); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424
N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the
party failed to include any arguments supporting the contention in its brief).
                                                                         A-1886-17T4
                                       12
"An issue of material fact is 'genuine only if, considering the burden of

persuasion at trial, the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving party, would

require submission of the issue to the trier of fact.'" Id. at 24 (quoting Bhagat,

217 N.J. at 38).

      The burden of proving discrimination "remains with the employee at all

times." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). To establish a

cause of action under the LAD based on hostile work environment, the plaintiff

must satisfy four elements:

            Specifically, [plaintiff] must show that the complained-
            of conduct (1) would not have occurred but for the
            employee's protected status, and was (2) severe or
            pervasive enough to make a (3) reasonable person
            believe that (4) the conditions of employment have
            been altered and that the working environment is
            hostile or abusive.

            [Shepherd v. Hunterdon Developmental Ctr., 174 N.J.
            1, 24 (2002).]

      The statute of limitations for LAD claims is two years. Alexander v. Seton

Hall Univ., 204 N.J. 219, 228 (2010). "Determining when the limitation period

begins to run depends on when the cause of action accrued, which in turn is

affected by the type of conduct a plaintiff alleges to have violated the LAD."

Ibid. "Discriminatory termination and other similar abrupt, singular adverse

                                                                          A-1886-17T4
                                       13
employment actions that are attributable to invidious discrimination, prohibited

by the LAD, generally are immediately known injuries, whose two-year statute

of limitations period commences on the day they occur." Ibid.

      Claims of harassment, however, may be based on a number of allegedly

discriminatory acts constituting a pattern of behavior. The continuing violation

doctrine is a "judicially created doctrine . . . developed as an equitable exception

to the statute of limitations." Bolinger v. Bell Atl., 330 N.J. Super. 300, 306

(App. Div. 2000). As our Supreme Court explained, "when the complained-of

conduct constitutes 'a series of separate acts that collectively constitute one

unlawful employment practice[,]' the entire claim may be timely if filed within

two years of 'the date on which the last component act occurred.'" Alexander,

204 N.J. at 230 (alteration in original) (quoting Roa v. Roa, 200 N.J. 555, 567

(2010)). The Court warned, however, "[w]hat the doctrine does not permit is

the aggregation of discrete discriminatory acts for the purpose of reviving an

untimely act of discrimination that the victim knew or should have known was

actionable." Roa, 200 N.J. at 569.

       Plaintiff concedes that she was not subject to a discrete adverse

employment action at any time, either before or after the July 22, 2013

limitations period. She instead alleged a pattern of harassing acts by Burkert


                                                                            A-1886-17T4
                                        14
that began prior to July 22, 2013, and continued through the filing of the

complaint. Our review of the record, in light of the applicable legal standards,

leads us to the same conclusion reached by the trial court: plaintiff did not raise

a genuine issue of material fact on which a reasonable jury could conclude

Burkert's alleged harassing behavior on any occasion after July 22, 2013, was

motivated by plaintiff's race or gender. Burkert made no explicit reference to

plaintiff's race or gender and no verbal remarks that could reasonably be

interpreted as suggesting a discriminatory intent on his part.       Nor could a

discriminatory intent be implied from Burkert's prior interactions with plaintiff.

      The incidents alleged by plaintiff to have taken place after July 22, 2013,

if accepted as true and interpreted in the light most favorable to her, amount to

Burkert: (1) carrying out his responsibilities as a sergeant by making a general

statement to a group of employees that included plaintiff; (2) acting in an

unfriendly, and possibly intentionally intimidating, manner by briefly staring at

plaintiff, appearing where he knows she might be present, or yelling at another

employee over a radio; (3) incorrectly including her name in incident reports;

(4) directing employees to write an incident report about plaintiff; and (5)

harassing plaintiff's coworker friends. While plaintiff paints a picture of an

unpleasant colleague intent on making her uncomfortable at work, she cannot


                                                                           A-1886-17T4
                                       15
demonstrate that his acts after July 22, 2013, were motivated by racial or gender

animus. The record suggests instead that Burkert and plaintiff have a history of

tension associated with union activity that began almost immediately after

plaintiff started working at the jail.

      While we do not condone Burkert's behavior, the LAD is not intended to

be a general workplace civility code. Discourtesy or rudeness should not be

confused with racial or gender discrimination. Herman v. Coastal Corp., 348

N.J. Super. 1, 21 (App. Div. 2008); see also Shepherd, 174 N.J. at 25. Plaintiff

has not produced evidence that Burkert's acts after July 22, 2013, while

inappropriate and, perhaps, worthy of discipline, were unlawful discrimination

under the LAD. The trial court correctly dismissed plaintiff's complaint as time

barred.

      Affirmed.




                                                                         A-1886-17T4
                                         16
