SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3129- 21 BRENDA AZANEDO, Plaintiff-Appellant,

v. ALARIS HEALTH AT CASTLE HILL, JANET ROBINSON, and MARGOT DOMINGO, Defendants-Respondents.

_____________________________

Argued November 1, 2023

– Decided April 23, 2024 Before Judges Firko, Susswein, and Vanek. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L

- 1705

- 19. Mark A. Mulick argued the cause for appellant.
Stuart A. Weinberger (Weinberger & Weinberger, LLP ) argued the cause for respondent. The opinion of the court was delivered by FIRKO, J.A.D. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3129

- 21

In this employment matter, plaintiff Brenda Azaned o appeals from a May 13, 2022 Law Division order dismissing her amended complaint against defendants Alaris Health at Castle Hill (Alaris), J anet Robinson, and Margot Domingo, on summary judgment. We affirm.
I. Factual Background We summarize the material facts from the summary j udgment record, viewing them in the light most favorable to the non -moving plaintiff. See Richter v. Oakland Bd. of Educ., 246 N.J. 507, 515 (2021). Alaris is a nursing facility. In October 2018, plaintiff became employ ed at Alaris as a recreation al therapist. Her responsibilities included initial assessment of the residents, providing their recreational activities, and assist ing them with "their general requirements of life." At the time, Erica Corey was the Director of Recrea tion. When she was hired, plaintiff signed a document det ailing her responsibilities and acknowledged receipt of an emp loyee handbook. Pertinent to this appeal, the handbook specifies that receivi ng a gift from a resident, using a cell phone in areas where patients are located, a nd taking pictures and videos of residents constitute grounds for immediate termi nation. The employee handbook also describes the procedure for reporting claims of discrimination3 A- 3129

- 21

and harassment, and the process to investigate such claims. Alaris requir es employees to report all allegations of abuse, negle ct, or mistreatment of residents to management, and all such allegations w ill be investigated by Alaris. It was Alaris's policy to train all employees on an ti-discrimination and harassment prior to their hire or on their first da y of work. Plaintiff's personnel file indicates she received such training and signe d the requisite form acknowledging the training. Plaintiff observed residents

— some suffering from dementia and Alzheimer's Disease

— sitting in urine and feces for "hours at a time" without being taken to the bathroom and not having hot wate r bottles at their bed side

. Plaintiff observed certified nursing assistants (CN As) not properly feeding or cleaning residents; not cleaning up their vomit; an d using vulgar language towards them. Plaintiff complained that mice were running around Alaris's premises. In addition, plaintiff alleges CNAs falsified resid ents' shower records to indicate they had been showered when they had not b een and failed to report when residents fell to their family members. She r eported these incidents to Corey, Domingo, the senior administrator, and the h ead nurse "Colleen ." 1

1 Colleen's surname is not contained in the record.4 A- 3129

- 21

Plaintiff claimed these incidents constituted viola tions under the law, citing N.J.S.A. 30:13-1, N.J.S.A. 26:2H-1, and N.J.A.C. 8: 34-1.18(7), 2 Alaris's own

2 N.J.S.A. 30:13-1 provides: "The Legislature hereby finds and declares that the well-being of nursing home residents in the Sta te of New Jersey requires a delineation of the responsibilities of nursing homes and a declaration of a bill of rights for such residents." N.J.S.A. 26:2H-1 states the declaration of policy f or hospital and related health care services:

It is hereby declared to be the public policy of the State that hospital and related health care services and behavioral health care services of the highest qual ity, of demonstrated need, efficiently provided and accessible at a reasonable cost are of vital concer n to the public health. It is further declared that int egrating physical and behavioral health care is the most eff ective way to improve the health of individuals and the population at large. In order to provide for the protection and promotion of the health of the inhabitants of the State, the Department of Health (DOH) shall have the central responsibility for the development and administration of the State's polic y with respect to health planning, hospital and relat ed health care services and health care facility cost containment programs, behavioral health treatment and prevention programs, and all public and private institutions, whether State, county, municipal, incorporated or not incorporated, serving principall y as residential health care facilities, nursing or mate rnity homes, or as facilities for the prevention, diagnos is, care, or treatment of human disease, mental illness , substance use disorder, pain, injury, deformity, or5 A- 3129

- 21

policies, and the ethics of nursing home employee c onduct. Plaintiff claims Alaris's administrators and supervisors took "no action o r insufficient action" to correct the violations. According to plaintiff, Colleen told her that she w as "prohibited" from notifying the other Alaris supervisors or managers of any violations and should not file complaints with them. Following her repor t of the violations, plaintiff alleges Alaris's supervisors and co-employees retal iated against her. By way of example, plaintiff claims she would be left alone w ith up to ten residents with behavioral issues in the dayroom. On one occasion, plaintiff avers she attempted to conduct an activity with the residents, but CNAs and nurses discussed personal matters in her presence, often using loud, vulgar language. When plaintiff asked them to lower their voices, they wo uld leave the room . P laintiff was then "isolated" with the residents. Plaintiff, who is "mixed race," also posits that of ten times when she came

to work, Colleen would signal to the CNAs and nurses that plaintiff had arrived. The employees would leave the area, and sometimes s houted "the problem [i s]

physical condition, shall be subject to the provisions of this act. N.J.A.C. 8:34-1.18(7) is an incorrect cite and is n on-existent.6 A- 3129

- 21

here." The CNAs and nurses would state no new ly hir ed employee

— such as plaintiff

— could "get rid of them" because they were long-time employees. Plaintiff also alleges the CNAs and nurses would no t give the residents water, they told her assigned residents that she is a prob lem maker, and ridiculed the activities she participated in, such as playing dom inos. In December 2018 after a resident suffered a fall, plaintiff submitted a written report of the incident to Corey. Plaintiff claims the resident's family should have been notified of the fall "pursuant to regulation" but was not. Plaintiff personally notified the resident's family about the fall, and an investigation ensued by the D OH . According to plaintiff, Alaris employees told her to " li e" to the DOH investigators and not cooperate with the investiga tion. Plaintiff apparently acquiesced, and when the State investigator found no deficiencies, plaintiff felt "uncomfortable" becaus e she was "ordered . .

. to give insufficient information" to the investigator. Domingo testified that while all falls are investigated, not all of them are investi gated by the DOH. On April 4, 2019, Robinson replaced Corey as Director of Recreation and became plaintiff's supervisor. At a meeting, Robin son told plaintiff she was a "complainer." In addition, Robinson told plaintiff to "fix" her "attitude, " she is7 A- 3129

- 21

"negative," "hardheaded," "not a team player," and "I will never be able to tell you to do something and just have you say 'yes.'" During the meeting, Robinson also instructed plain tiff to ask the resident s if they were experiencing any problems. Plaintiff followed her instructions and reported back to Robinson that problems existed. R obinson then told Domingo that plaintiff tried to "coax" the residents to rep ort problems that did not exist. Robinson "threatened" to change plaintiff's hours a nd the floor she was assigned to. Plaintiff claims Robinson "unjustifiably" wrot e her up on several occasions resulting in unwarranted suspe nsions. On April 5, 2019, plaintiff witnessed physical cont act between Robinson and a fellow Alaris employee, Andrew Bruce, who was also supervised by Robinson. Plaintiff asserts Robinson approached Br uce, asked him if he was single, and had a conversation about when he would "take [] care of" stripping and waxing the floors in the recreation room. Bruc e responded he was getting divorced, and the job would be completed over the w eekend and take a few hours. According to plaintiff, Robinson hugged Bru ce, placed his head between her breasts, and told him , "Call your wife and tell her you are not coming back ." At his deposition, Bruce testified other Alaris employees had hugged him in the past.8 A- 3129

- 21

On April 18, 2019, after an unrelated two-day susp ension for her failure to provide timely activity programs and taking lunc h at an inappropriate time , plaintiff complained about the Bruce/Robinson encounter to an Alaris human resources (HR) representative. 3 According to plaintiff, Bruce initially told her that he was shocked by Robinson's conduct and was pressured by her to sign an incident report that she created to get plaintiff t o stop bothering him. Alaris investigated the incident and prepared a re port, which had inaccuracies later corrected through deposition tes timony. For example, Bruce testified he was sitting down, and that Robinson did not put his face to her bosom ; it was simply a "motherly" friendly hug. Plaintiff asserts she has a sexual harassment claim based on Robinson's conduct towards Bruce. Robinson testified she hugged Bruce because she was thankful that he promised to promptly complete the work. Robinson and Bruce denied the interaction was sexual in nature. Bruce denied telling Robinson that he was getting d ivorced. Plaintiff told Robinson that her actions were the "equivalent of a man grabbing a women's head and putting it to his groin." After stating t his, plaintiff claims she was

3 Plaintiff claimed she immediately made a complaint to Robinson, however Robinson denied this claim at her deposition.9 A- 3129

- 21

"written up." In conducting the investigation, Dom ingo found "no breach of policy," and concluded the hug had no sexual connot ation and did not constitute sexual harassment. However, Bruce and Robinson were counseled about sexual discrimination and harassment. Plaintiff also complained that she was called a "b itch" on almost a daily basis by her co-workers and supervisors. Plaintiff denied ever using the word "bitch" to refer to any Alaris employee while on du ty. However, a resident and Bruce both confirmed plaintiff called Robinson a "b itch," and plaintiff later admitted to doing so at her deposition. Additionally, plaintiff heard rumors that two Alaris employees were having sexual relations on Alaris 's premises on more than four occasions. On one occasion, plaintiff "witnessed" the couple ente r a resident's room and lock the door. Plaintiff felt sexually harassed by their conduct. Plaintiff reported this conduct to Domingo who advised she was aware of the conduct and did not take the matter seriously because the perpetrators were " young ," and such conduct "was expected of them." Plaintiff also alleges Rudy, 4 a kitchen worker, asked her why she was "trying to be black, " which offended her. Plaintiff complained to Robins on

4 Rudy's surname is not contained in the record.10 A- 3129

- 21

about Rudy's comments, but nothing was done about i t and the comments continued. After notifying management of "various illegal, unethical, [and] otherwise inappropriate conduct by Alaris employees ," plaintiff claims her assigned parking spot was taken away from her. In May 2019, a photograph of personnel in plaintiff 's department was altered, and the Muppet character "Ms. Piggy" circu lated throughout Alaris with plaintiff's face superimposed on it. Plaintiff claims Robinson told the employees not to inform her of the altered photograph. Plain tiff maintains Robinson ordered the employees in plaintiff's department to view the altered photograph before she deleted it. Plaintiff asserts Domingo q ueried whether plaintiff sided with the residents or Alaris, which Domingo denied at her deposition. In plaintiff's view, she was ostracized by co-workers, locked in a dayroom, the only employee not allowed in the building prior to her s hift, and was not promoted. Prior to her termination, plaintiff overheard Domi ngo instruct Alaris supervisors and co-workers to concoct a reason to f ire her. In total, plaintiff was disciplined eight times following her report of Rob inson's hugging incident with Bruce. Robinson or Domingo originated or authorize d seven out of the eight disciplinary notices.11 A- 3129

- 21

Robinson expressed that plaintiff persistently mad e false statements, caused havoc, and did not follow instructions. Pla intiff was disciplined for not providing timely activity programs and for taking l unch at an inappropriate time. Plaintiff was suspended for two days after a schedu led mandatory meeting during her lunch hour interfered with another appoi ntment she had in preparation for Easter Sunday. Plaintiff did not r eturn to work that day despite instructions to do so. She was scheduled to hold Bingo f or the residents later in the day. Plaintiff also received a written discipline for be ing in the dayroom with her feet up on a chair and eating while a near by resident was falling out of her wheelchair. The next day, Janine Dicalagaro wrote a report sta ting a resident heard plaintiff call Robinson a "bitch." Bruce also conf irmed plaintiff called Robinson a "bitch" and how she would attempt to "get this bi tch [Robinson] in trouble". On May 13, 2019, plaintiff was again disciplined re garding an alleged prank in violation of the handbook. Plaintiff was accused o f either spitting in or replacing the contents of a co-worker's water bottle with tap water, which distressed the

co -worker. Plaintiff denied the incident took place and Doming o would not let her read the write-up.12 A- 3129

- 21

In May, plaintiff, without approval, took off on her birthday, did not come to work as scheduled, and caused a confrontation re garding cutting a cake, resulting in another written discipline. Plaintiff was given training at that point regarding how to properly process requests for time -off. On May 28, 2019, Domingo wrote plaintiff up because she said "hello" to a resident during a Memorial Day service, but plaintiff averred Domingo "disingenuously informed plaintiff" the write-up was for interrupting a "rel igious" ceremony. Plaintiff was further disciplined for promoting a hostile environ ment within her department and arguing with Robinson. On June 14, 2019, plaintiff was issued a disciplin ary notice for discussing another staff member with a resident, resulting in a two-day suspension. At a meeting with Domingo, plaintiff was admonished for prompting residents to say negative things about the ir care. Plaintiff does not recall when these meetin gs occurred or when she made the first complaint and l ater complaints concerning resident care, who they were made to, or what the c omplaints were. None of plaintiff's complaints were made in writing. Domingo, who was no longer employed by Alaris at the time of her deposition, t estified that all of plaintiff's complaints

— formal or informal

— were investigated, and a ll of them were13 A- 3129

- 21

deemed unfounded. Domingo also testified that she did not think Robins on was "retaliating" against plaintiff.
Co -workers complained about working with plaintiff. A therapist, Jared Alfonzo, wrote an incident report dated July 1, 201 9, stating staff and residents felt uncomfortable around plaintiff. CNAs were ups et their actions were misrepresented by plaintiff, resulting in confronta tions. For example, plaintiff complained a C NA was not toileting a resident, but an investigation revealed the resident was "bone dry." Ultimately, plaintiff was terminated in July 2019 for accepting gratuities

— including a purse

— from a resident in January 2019 contrary to Alaris's policy. The policy forbi ds employees from accepting gratuities, as stated in the employee handbook, which plaintiff ac knowledged she received and had training on. A resident witnessed the purse incident. A housekeeper also witnessed the resident gifting the purse to pl aintiff, who denied ever accepting or seeing the purse. According to plaintiff, the housekeeper falsified the purse incident because she was accepting gifts from residents. Plaintiff claims the "gratuities" were in the form of "food, " i.e. "lunch purchases" from a resident she was assisting, and she imm ediately informed her supervisors about it. The lunch purchases ceased t hereafter. No investigation14 A- 3129

- 21

was conducted regarding the lunch purchases, which plaintiff claims were used as a "pretext" for her termination. Plaintiff did not recall the number of meetings or conversations she had with Domingo about the pur se incident even though plaintiff recorded some of the meetings. Plaintiff believed the supervisors and employees at Alaris were trying to get rid of her. The Litigation On May 30, 2019, plaintiff filed a complaint in the Law D ivision alleging violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19 -1 to -14 (count one); and the New Jersey Law Again st Discrimination (LAD), N.J.S.A. 10:5-1 to - 50 (count two); and the common law, while she was still employed by Alaris. On July 31, 2020, after being terminated, plaintiff filed a first amended complaint, which included a t hird count for wrongful termination, in violation of CEPA, the LAD, and the common law. Plaintiff sought compensatory damages under CEPA, the LAD, an d the common law, past, present, and future wages, damages for emotio nal distress, and attorney's fees. Following a period of discovery, defendants moved for summary judgment seeking dismissal of the first amended com plaint in its entirety, which plaintiff opposed. Defendants argued that plaintiff failed to establis h the factors15 A- 3129

- 21

required to find a violation under CEPA, the LAD, o r the common law, and the adverse actions, such as disciplinary warnings and termination, have no causal connection to any violations of CEPA, the LAD, or the common law. Rather, defendants contended that the actions taken by them against plaintiff were based entirely on her misconduct as evidenced by the seve n written warnings and multiple suspensions in her ten-month period of emp loyment. According to defendants, the actions taken against plaintiff wer e based on facts presented from a diverse group of Alaris employees, many of t hem had no connection to the purported violations alleged by plaintiff and u ndisputed facts presented by residents. In her statement of undisputed facts under Rule 4 :46 -2(a), plaintiff claimed Domingo wrote her up every time she complai ned about the incidents described. Plaintiff alleged her complaints involving the res idents' care were not investigated because she "was instructed to sto p complaining." Plaintiff is "mixed race" and found the racial comments "to be e mbarrassing." Therefore, she did not report them to anyone. Over time, plai ntiff was "very careful and scared" about what she reported because the repercu ssions became "worse." Plaintiff stated she was locked in a dayroom on mu ltiple occasions by an unidentified person and called a "bitch" every time she went upstairs. Robinson16 A- 3129

- 21

instructed plaintiff to report to her if CNAs were not in the dayroom with her. Plaintiff claimed Colleen "shadowed her" every time plaintiff entered a resident's room. Plaintiff asserted she was "frequ ently yelled at and told how horrible she wa s and that people didn't like her." Following a me morial service one day, an incident occurred that plaintiff stated caused her to go home crying. Plaintiff alleged defendants' employees made her lif e "impossible," and she was "bullied every day." Plaintiff stated she was neve r trained in Alaris's antidiscrimination/harassment policies. On May 13, 2022, the trial court conducted oral ar gument on defendant's motion for summary judgment and issued a twenty-thr ee-page statement of reasons that day granting the motion. The trial co urt explained that the motion record failed to create a genuine issue of material fact as to whether plaintiff engaged in CEPA-protected conduct. The trial court reasoned that plaintiff attempted t o allege violations of New Jersey law governing "senior institutions," suc h as residents sitting in urine and feces for extended periods of time; failure to properly feed, shower, and clean them; failure to notify a resident's family a bout a fall and falsifying information to the DOH, but concluded she is "unabl e to carry her burden of specific instances of complaints made" within the m eaning of CEPA.17 A- 3129

- 21

Relying on Chiofalo v. State, 238 N.J. 527, 540, 5 43 (2019), the trial court concluded "[t]he problem is that [p]laintiff contin ually and consistently did not recall when, or to whom, any of the above assertion s were made throughout her deposition testimony," notwithstanding the fact that plaintiff "did record conversations between herself and her co-workers." The trial court noted the audio recordings were not provided to the court. The trial court emphasized "there is no connection to a possible timeframe oth er than with [plaintiff's] employment." The trial court reasoned plaintiff "c annot recall the complaints, when they were made, or to whom," which are "critic al in the CEPA analysis because if she made them to co-workers instead of s upervisors, CEPA would not apply." Further, despite the pattern of disciplinary actio n and termination, the trial court emphasized that plaintiff failed to establish a "prima facie even indirect connection between the allegations and CEPA protect ions." The trial court noted plaintiff "could not pin" the Robinson/Bruce incident down to a specific point in April, which is important because plaintif f reported the incident "after her disciplinary suspension" and "several disciplin ary infractions." The trial court stated plaintiff could not even reca ll "the reason" when she made the complaints, which may have supported the " temporal nexus" she raised18 A- 3129

- 21

in opposition to the motion. The trial court also held it was unclear in plaintiff's opposition as to how many resident reports of plaintiff's alleged mi sconduct were retaliatory in nature. On the issue of pretext, the trial court addressed the burden shifting analysis request under Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 551 (App. Div. 1995). The trial court noted "plaintiff has the ultimate burden to prove that the proffered reasons for the discriminatory action or adverse action taken by the employer are mere pretext." I bi d. The trial court concluded "[p]laintiff fails to provide a weakness, implausibility, inconsistency, incoherency, or contradiction that would lead a fac tfinder to be able to find in [p]laintiff's favor." The trial court found the "purse allegation" standi ng alone would lead to plaintiff's "firing" under Alaris's rules. The tri al court observed plaintiff's allegations that her termination was improper because she d id not see the purse, she was unaware of the accusation until her termina tion, and previous disciplinary notices received by her were "frivolous" a nd show a "scramble" for a reason to terminate her lacked any evidential sup port. The trial court found plaintiff's assertions regarding the purse incident were "conject ur e" and "speculation."19 A- 3129

- 21

The trial court also dismissed plaintiff's hostile work environment claims noting she contributed to the alleged hostile work environment "as a perpetuator of the alleged culture at Alaris." With respect to the Robinson/Bruce incident, the trial court found nothing in the record to sugg est "the hug was severe or pervasive enough to alter [p]laintiff's workplace," and it never occurred again. The rumors of sexual activity were unsubstantiated according to the trial court and not actionable. The trial court found pl aintiff being called a "bitch" did not create a hostile work environment under the LAD because she engaged in the same "offensive and inappropriate conduct." The trial court noted plaintiff's accusations regarding Rudy's comments a bout her race were not reported to Alaris, Domingo, or Robinson, and they did not become aware of the claim until the lawsuit was filed. The trial court also concluded the record was devo id of any evidence that plaintiff was terminated because of her race or sex and dismissed the disparate treatment claim with prejudice. Because plaintiff did not oppose defendants' motion to dismiss her common law, vicarious liabili ty, and after-acquired evidence claims, those claims were dismissed with p rejudice. This appeal followed. Plaintiff presents the following arguments for our consideration:20 A- 3129

- 21 (1) the court erred in making credibility determinations against her in granting summary judgment; (2) the court erred in dismissing her LAD hostile w orkenvironment claim when her supervisors and coemployers referred to her on a daily basis as a "bi tch, " and plaintiff denied using that word in reference t o her co -employees and supervisors; (3) the court erred in dismissing her CEPA and LAD retaliation claims; (4) the court improperly dismissed her LAD disparat e treatment and common law causes of action for wrongful termination and intentional infliction of emotional distress, which were not challenged by defendants; (5) the court erred in its analysis of an employer' s responsibility for the discriminating conduct of it s employees.
II. Our review of a trial court's grant or denial of a motion for summary judgment is de novo. Samolyk v. Berthe, 251 N.J. 73, 78 (2022 ) (citing Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 (2019)). We "consider whether the competent evidential materials presente d, when viewed in the light most favorable to the non-moving party . . . are su fficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 14 2 N.J. 520, 540 (1995).21 A- 3129

- 21

"The court's function is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a g enuine issue for trial.'" Rios v. Meda Pharm. Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540). "Conclusory and self-serving assertions . . . are i nsufficient to overcome the motion." Puder v. Buechel , 183 N.J. 428, 440-41 (2005). "A trial court's interpretation of the law and the legal consequence s that flow from established facts are not entitled to any special deference." Rowe v. Bell & Gossett Co. 239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P . v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Plaintiff first asserts the court ma de impermissible credibility determinations by (1) relying on Bruce's testimony and statements, (2) finding the reason for her termination was accepting a gift from a resident, (3) ignoring the fact that plaintiff denied ever using the word "bitch" in reference to coemployees or supervisors, (4) giving no weight to R obinson and Bruce using the phrase "motherly hug," and (5) ignoring plaintiff's statement that some of her harassers were Alaris supervisory staff, and she co mplained on numerous occasions to supervisors and an HR representative i n determining defendants were not negligent because they were not aware of c ertain LAD and CEPA complaints. We address each of plaintiff's causes of action in turn.22 A- 3129

- 21 LAD To establish a claim of hostile environment discrim ination under the LAD, a plaintiff "must show that the complained-of condu ct (1) would not have occurred but for the employee's protected status, a nd 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 e nvironment is hostile or abusive." Griffin v. City of E. Orange, 225 N.J. 4 00, 413-14 (2016) (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)). Our review of a hostile work environment claim requires considerati on of "the totality of the circumstances." El -Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005). Under the first prong of a hostile work environment claim, "a plaintiff must show by a preponderance of the evidence that t he impermissible conduct would not have occurred but for plaintiff's protect ed status." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002). Under the second prong, "[i]t is the harasser's conduct, not . . . plaintif f's injury, that must be severe or pervasive." Lehmann, 132 N.J. at 610. To determine the severity or pervasiveness of condu ct, courts must make an assessment of the circumstances which involves ( 1) "the frequency of all the23 A- 3129

- 21

discriminatory conduct," (2) "its severity," (3) "w hether it is physically threatening or humiliating, or a mere offensive utt erance," and (4) "whether it unreasonably interferes with an employee's work per formance." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 ( 2008) (quoting Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003))

. 5 The Court stated "[n]either rudeness nor lack of sensitivity alone constitutes harassment, and simple teasing, offhand comments, and isolated incidents do not con stitute discriminatory changes in the terms and conditions of one's employ ment." Shepherd, 174 N.J. at 25- 26.
Our Supreme Court has observed "one incident of harass ing conduct can create a hostile work environment." Taylor v. Metz ger, 152 N.J. 490, 499 (1998). However, our Court has further explained t hat, although it

"is certainly possible" . . . a single incident, if severe enough, can establish a prima facie case of a hosti le

5 Plaintiff argues that Cutler v. Dorn, 196 N.J. 419 (2008), overruled Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999). But, as the trial court ap tly noted, this is incorrect. Heitzman was partial ly overruled. The portion that was overruled only applied to a height ened threshold for religious claims under the LAD. Cutler, 196 N.J. at 440 ("If the holding in Heitzman is perceived, in application, to suggest a different, and higher, threshold for demonstrating a hostile work environment when relig ion-based harassment is claimed, then that misapprehension must end."). The standard for all other claims did not change. Moreover, plaintiff cites t o the dissent in Heitzman as binding law. However, a dissent is not binding law and has merel y persuasive value.24 A- 3129

- 21 work environment, "it will be a rare and extreme ca se in which a single incident will be so severe that i t would, from the perspective of a reasonable [person situated as the claimant], make the working environment hostile." [I d. at 500 (quoting Lehmann, 132 N.J. at 606-07).] Under the third and fourth prongs of the standard f or establishing an actionable hostile environment under the LAD, the C ourt has employed "an objective standard to exclude an 'idiosyncratic res ponse of a hypersensitive plaintiff.'" Shepherd, 174 N.J. at 26 (quoting Leh mann, 132 N.J. at 614). "Settled case law relies on an objective standard t o evaluate a hostile environment claim." Rios, 247 N.J. at 12. In asse ssing a hostile environment claim, the focus "is on the harassing conduct itsel f and 'not its effect on the plaintiff or on the work environment.'" Ibid. (quo ting Cutler, 196 N.J. at 431). Plaintiff claims a hostile work environment based o n sex was created when she was repeatedly called a "bitch" on almost a daily basis by supervisors and coworkers in the presence of employees and resi dents, and by the alleged sexual activity at Alaris

— from the "motherly hug " between Robinson and Bruce, to the suspicion of intercourse between empl oyees behind a closed, locked door. The trial court determined these inst ances did not create a hostile work environment based on sex, because : (1) plaintiff engaged in the same name25 A- 3129

- 21

calling, (2) there was no evidence the hug was inap propriate, and (3) plaintiff did not witness employees actually engaging in inte rcourse. Plaintiff also avers that other circumstances contr ibuting to the hostility of her work environment were not considered, such a s: (1) being locked in a dayroom by coworkers, (2) not being allowed to ente r the building when other employees were allowed to enter, (3) overhearing Do mingo instruct another supervisor to concoct a reason to fire her, (4) her p arking space was taken away, (5) her face was superimposed on the "Ms. Piggy" ch aracter, which was circulated throughout the facility, and (6) she los t a promotion. We are unpersuaded. "A hostile work environment discrimination claim ca nnot be established by epithets or comments which are 'merely offensive ." Mandel v. UBS/Paine Webber, Inc., 373 N.J. Super. 55, 73 (App. Div. 200 4) (quoting Heitzman, 321 N.J. Super. at 147). In Mandel v. UBS/Paine Webber , Inc. , the plaintiffs sued for hostile work environment created by Jewish epit hets and being called a "bitch." Id. at 68 (referring to plaintiff as "som ething like a Jew bitch" to someone else when plaintiff was not present). Our Court found the "hostile work environment claims were properly dismissed bec ause even considering the facts in a light most favorable to plaintiffs, a ju ry could not conclude that [the]26 A- 3129

- 21

comments and actions were so severe or pervasive to create a hostile work environment." Similarly, in Heitzman, a plaintiff claimed a hosti le work environment was created by comments involving plaintiff's Jewis h background. Heitzman , 321 N.J. Super. at 148 (involving comments made dir ectly to plaintiff about Friday night dietary habits, vacationing in the "Je wish Alps," characterizing yarmulkes as "skullcaps," and comments directed at other persons like "Jew bitch" and "Jewish mile"). Because the comments we re sporadic, casual, and "did not involve any physical threat or humiliation or any direct interference with plaintiff's work performance," we concluded th e offensive comments were not severe enough to create a hostile work environm ent. Ibid. After examining the record on appeal, and consideri ng the proofs as a whole, whether plaintiff was called a "bitch" on a "daily" basis or whether she ever reported these allegations to defendants there is no evidence of any physical threats to satisfy prong two. Furthermore, we obse rve that plaintiff admitted at her deposition that she referred to certain Alaris employees as "bitch" during the course of her employment, including Robinson, which further negates plaintiff's argument on appeal. Moreover, on April 19, 2019, D icalagaro wrote a report stating that a resident heard plaintiff call Robinson a " bitch." And , on April 18,27 A- 3129

- 21

2019, Bruce also confirmed that plaintiff called Ro binson a "bitch" and stated she would "get even" with her. As the trial court correctly pointed out, plaintiff was "a perpetrator of the alleged culture at Alaris," while simultaneously claimi ng she was subjected to a hostile work environment by other Alaris employees using the same word

— bitch

— against her. We conclude based upon our de novo review that plaintiff's sex based hostile work environment claim was proper ly dismissed, and the trial court did not make inappropriate credibility determ inations but relied upon substantial credible evidence in the record includi ng plaintiff's own deposition testimony. Regarding the hug between Bruce and Robinson, plain tiff failed to present any evidence that but for her status as a female, the hug

— which did not involve her

— would not have occurred. Saliently, Bruce signed a n incident report, but at his deposition, he testified plaintiff told him, "Andrew, I need your help; I want to get this bitch [Robinson] in trouble" and the hug was in appreciation for "doing the floors." Bruce also testified that plaintiff got on his "nerves," and he went along with signing the incident form "just so she (plaintiff) can get off my back."28 A- 3129

- 21

The hug had nothing to do with plaintiff's female s tatus and was properly dismissed. See Lehmann , 132 N.J. at 601 ("Hostile work environment sexual harassment . . . occurs when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment became hostile."). Like the hug, the alleged sexual activity amongst c oworkers at Alaris lacked sufficient evidence and did not involve plai ntiff. Thus, plaintiff cannot establish that the purported sexual activity amongs t other coworkers would not have happened but for her gender or was hostile. I bid. The "Ms. Piggy" incident in our view was bad behavi or but does not establish a hostile work environment based on gende r. This was an "isolated incident" and is analogous to the "simple teasing" remarks in Heitzman, and not actionable. Plaintiff also claims that a hostile work environme nt based on race was created when Rudy, a kitchen worker, asked her why she was "trying to be black." Under the LAD, the elements of a hostile work envir onment claim based on race are the "conduct (1) would not have occurre d but for the employee's [race]; and [the conduct] was (2) severe or pervasi ve enough to make a (3) reasonable [African American] believe that (4) the conditions of employment29 A- 3129

- 21

are altered, and the working environment is hostile or abusive." Taylor, 152 N.J. at 498. Although plaintiff satisfies prong on e, she fails to establish prongs two, three, and four, which are required to prove a hostile work environment claim. "The severity of a remark can be 'exacerbated' when it is uttered by a supervisor." Rios, 247 N.J. at 11 -12 (quoting Taylor, 152 N.J. at 503). Furthermore, "harassment by a supervisor can have a greater impact than misconduct by fellow employees." Taylor, 152 N.J. at 504. Here, Rudy was only a fellow employee, not a superv isor, which makes his remark less "severe." I bid. And , this was a one -time event. Our Court ha s found invidious epithets, rather than referring to a person as "black," reach es the requisite level of severity. E.g. , id. at 513 (finding a sheriff's use of the term "jungle bunny" in reference to an officer was extre me and outrageous). Here, because Rudy did not use an epithet, this was an isolated incident, and he was not a supervisor, his remark was not severe enough to be actionable. Moreover, defendants were not informed about Rudy's comment until after plaintiff instituted suit. Furthermore, Rudy was e mployed by an entirely different department than plaintiff. Therefore, ba sed on our de novo review,30 A- 3129

- 21

plaintiff's claim for hostile work environment base d on race was properly dismissed.
CEPA CEPA was enacted "to provide 'broad protections aga inst employer retaliat[ion]' for workers whose whistle- blowing actions benefit the health, safety and welfare of the public." Carmona v. Reso rts Int'l Hotel, 189 N.J. 354,
371 (2007) (quoting Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 239 (2006)). Its purpose is "to protect whistle[-] blowers from retaliation by employers." Lippman v. Ethicon, Inc., 222 N.J. 362 , 378 (2015). Consistent with that purpose, CEPA "is considered remedial leg islation entitled to liberal construction." Ibid. A plaintiff establishing a prima facie claim for re taliation under CEPA must demonstrate:

(1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule , or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle[-]blowing" activity described in N.J.S.A. 34:19 -3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connecti on exists between the whistle- blowing activity and the adverse employment action. [Id. at 380 (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003))].31 A- 3129

- 21

Here, the parties agree that plaintiff's CEPA reta liation claim is based on N.J.S.A. 34:19-3(c), which bars an employee from ta king any retaliatory action against an employee when the employee objects to, o r refuses to participate in any activity, policy, or practice and reasonably be lieves:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care; (2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentatio n which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity; or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment. See also Allen v. Cape May Cnty., 246 N.J. 275, 290 (2021) (quoting N.J.S.A. 34:19 -3(c)). When a plaintiff establishes a prima facie claim under CEPA, the burden of persuasion shifts to the defendant-employ er "to rebut the presumption of discrimination by articulating some legitimate n ondiscriminatory reason for32 A- 3129

- 21

the adverse employment action." Kolb v. Burns, 320 N.J. Super. 467, 478 (App. Div. 1999); see also Allen, 246 N.J. at 290-91. If the employer meets that burden, the plaintiff then must prove the employer' s asserted legitimate reasons were pretextual and not the real reasons for the em ployer's discriminatory acts. Allen, 246 N.J. at 291. Prong One To satisfy the first prong of CEPA, a plaintiff mu st prove that he or she reasonably believed the conduct at issue was agains t a law under N.J.S.A. 34:19- 3(a)(1) or was incompatible with a "clear mandate o f public policy" under N.J.S.A. 34:19-3(c)(3). Estate of Roach v. TRW, In c., 164 N.J. 598, 611 (2000). Plaintiff satisfies prong one, because giving her t he benefit of all reasonable inferences that the complaints she made about the n ursing home's shortcomings, she reasonably believed the issues were violations of law or public policy. Prong Two Under prong two, a "whistle- blowing" activity "refers to notification, or threatened notification, to an outside agency or su pervisor . . . and also permits a claim to be supported by evidence that the employ ee objected to or refused to participate in the employer's conduct." Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 106 (2008). The whistle-blowing activity must reflect a "threat of33 A- 3129

- 21

public harm, not merely a private harm or harm only to the aggrieved employee." Maw v. Advanced Clinical Commc'n, Inc., 179 N.J. 43 9, 445 (2004). "Vague and conclusory complaints, complaints about trivial or minor matters, or generalized workplace unhappiness are not the sort of things that the Legislature intended to be protected by CEPA." Battaglia v. Un ited Parcel Serv., Inc., 214 N.J. 518, 529

- 31 . 546 (2013). CEPA's goal is "not to make lawyers out of conscien tious employees but rather to prevent retaliation against those employe es who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." Mehlman v. Mobil Oil Corp., 153 N.J. 163 , 193-94 (1998). Accordingly, it is not plaintiffs ' "burden to show that the defendant actually violated the law, rule, regulati on, or other authority cited, but only to demonstrate that he or she held a reasonabl e belief that such a violation occurred." Hitesman v. Bridgeway, Inc., 218 N.J. 8 , 30 (2014). Further, plaintiffs need not present evidence that the employer's conduct was actually unlawful, rather a plaintiff must set forth facts that would support an objectively reasonable belief that a violation h as occurred. Dzwonar, 177 N.J. at 462. The trial court must then "make a thr eshold determination that there is a substantial nexus between the complained-of co nduct and a law or public34 A- 3129

- 21

policy identified by the court or the plaintiff." Id. at 464. If a nexus can be established, it is a question of fact for the jury to "determine whether the plaintiff actually held such a belief and, if so, whether tha t belief was objectively reasonable." Ibid. Our Supreme Court has recognized that in the contex t of a CEPA claim, "a 'clear mandate' of public policy suggests an ana log to a constitutional provision, statute, and rule or regulation promulga ted pursuant to law such that . . . there should be a high degree of public certi tude in respect of acceptable versus unacceptable conduct." Maw v. Advanced Clin ical Commc'ns, Inc., 179 N.J. 439, 444 (2004) (Emphasis in original).

. A "vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate." MacDougall v. Weichert, 144 N.J. 380, 39 2 (1996) ; see also id. at 391 (a plaintiff must identify a violation of a public policy that is "clearly identified and firmly grounded"). Further, an employee who argues under N.J.S.A. 34:1 9-3(c)(3) "must make the additional showing that the 'clear mandate of public policy' he or she reasonably believes the employer's [conduct] to be incompatible with is one that 'concern[s] the public health, safety or welfare or protection of the35 A- 3129

- 21

environment.'" Maimone v. City of Atl. City, 188 N .J. 221, 231 (2006) (quoting Estate of Roach, 164 N.J. at 609-11). In addition, any "determination whether the plainti ff adequately has established the existence of a clear mandate of pub lic policy is an issue of law" for the court. Mehlman, 153 N.J. at 187. The sour ces of public policy that a court may rely upon "include legislation; administr ative rules, regulations or decisions; and judicial decisions." Pierce v. Ortho Phar m. Corp., 84 N.J. 58, 72 (1980). Plaintiff argues she was retaliated against for her whistle-blowing activity involving Alaris, which she claimed entailed violations of N.J.S.A. 30:13-1, 26:2H -1, and N.J.A.C. 8:34-1.18(7), as follows: (1) res idents sitting in urine and feces for extended periods of time, (2) failure to properly feed residents, (3) failure to shower residents, (4) failure to clean v omit from residents, (5) staff using vulgar language towards residents, (6) failur e to report falls, (7) failure to notify a resident's family about a fall, and (8) fa lsifying information to DOH. Plaintiff also raised other issues, such as a poten tial fire hazard from her being locked in the dayroom on multiple occasions, and em ployees having sex on Alaris's premises or engaging in sexual harassment.36 A- 3129

- 21

Applying this authority, we are satisfied that plaintiff failed to present sufficient evidence to meet the second prong of the CEPA test. As the trial court noted, plaintiff "is unable to carry her burden of specific instances of complaints made." At her deposition, plaintiff only testified that she made complaints while employed at Alaris, but she could not "recall the c omplaints, when they were made, or to whom." Moreover, plaintiff could not r ecall who she made the complaints to, which as the trial court astutely fo und, is "critical in the CEPA analysis because if she made them to co-workers ins tead of supervisors, CEPA would not apply." On appeal, plaintiff contends her inability to prov ide any details about her complaints at her deposition should be disregarded because she provided the information in her answers to interrogatories. We are unpersuaded. Plaintiff's lack of specificity is fatal to the requirement und er prong two that she proffer a prima facie showing of a complaint falling within t he CEPA statute. Plaintiff has pointed to nothing else in the record to suppor t her claim and failed to establish a prima facie case under CEPA prong two. Prong Three The third CEPA prong requires a plaintiff to demons trate that "an adverse employment action was taken against . . . h[im]" by defendant. Lippman, 22237 A- 3129

- 21

N.J. at 380. Under N.J.S.A. 34:19-2(e), "retaliato ry action" is defined as "the discharge, suspension or demotion of any employee, or other adverse employment action taken against an employee in the terms and conditions of employment." "What constitutes an 'adverse employm ent action' must be viewed in light of the broad remedial purpose of CE PA, and [a court's] charge to liberally construe the statute to deter workplac e reprisals against an employee speaking out against a company's illicit or unethic al activities." Donelson v. DuPont Chambers Works, 206 N.J. 243, 257

- 58 (2011). An adverse employment action can include "making fa lse accusations of misconduct, giving negative performance reviews, is suing an unwarranted suspension, and requiring pretextual mental-health evaluations

— causing the employee to suffer a mental breakdown and rendering him [or her] unfit for continued employment." Id. at 258. Additionally, retaliation can be "many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that com bine to make up a pattern of retaliatory conduct." Green, 177 N.J. at 448

. Here, we are satisfied that plaintiff presented suf ficient evidence to satisfy the third prong under Lippman because she faced dis ciplinary action and was ultimately terminated. These are adverse employmen t actions.38 A- 3129

- 21 Prong Four To satisfy the fourth prong of the CEPA test, plain tiffs must demonstrate that "a causal connection exists between the whistl e-blowing activity and the adverse employment action." Lippman, 222 N.J. at 3 80. A causal connection "can be satisfied by inferences that the trier of f act may reasonably draw based on circumstances surrounding the employment action. " Maimone, 188 N.J. at 237 (citing Estate of Roach, 164 N.J. at 612). The refore, the plaintiff does not need to show a "direct causal link" between the whi stle-blowing activity and the retaliation. Battaglia, 214 N.J. at 558. "The tem poral proximity of employee conduct protected by CEPA and an adverse employment action is one circumstance that may support an inference of a cau sal connection." Maimone , 188 N.J. at 237; Estate of Roach, 164 N.J. at 612. Based upon our de novo review of the record, we con clude that plaintiff failed to present sufficient evidence to meet the r equirements of the fourth prong in order to defeat summary judgment. Plaintiff coul d not, for example, pinpoint the date in April 2019 when the Robinson and Bruce h ugging incident occurred. However, defendants presented undisputed evidence t he hug took place on April 5, and that plaintiff did not complain about the hu g until after her disciplinary suspension and disciplinary infractio ns occurred. The timeline is critical, and39 A- 3129

- 21

plaintiff could not even recall the "season" in whi ch she made the complaints, as the trial court observed. Therefore, plaintiff did not establish a "temporal nexus" between her whistle

- blowing activity and the adverse employment action. Lippman, 222 N.J. at 380. We also note that it is undisputed that se veral residents reported plaintiff's misconduct, and there is nothing in the record to suggest that Alaris's employees joined in the residents' reports to consp ire against plaintiff. Thus, plaintiff failed to meet her burden under prong fou r. Retaliation Under the LAD The LAD's overarching goal is to eradicate discrimi nation, and our Court has "recognized and given effect to [its] broad rem edial purposes." Battaglia,
214 N.J. at 546 (2013). The LAD declares that "it is an unlaw ful employment practice 'to take reprisals against any person beca use that person has opposed any practices or acts forbidden under this Act.'" Tartaglia, 197 N.J. at 125 (quoting N.J.S.A. 10:5-12(d)). To establish a retaliation claim under the LAD, N.J .S.A. 10:5-12(d), a plaintiff must "demonstrate that: (1) they engaged in a pr otected activity known by the employer; (2) thereafter the employer unlawful ly retaliated against them; and (3) their participation in the protected activi ty caused the retaliation." Rios40 A- 3129

- 21

v. Meadowlands Hospital Medical Center, 463 N.J. Su per. 280, 287 (App. Div. 2020) (quoting Tartaglia, 197 N.J. at 125). As a p rerequisite, a plaintiff must establish "that the alleged action triggering the r etaliation was taken on a good faith and reasonable basis." Id. at 290 (discussing Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 372-73 (2007)). "All LA D claims are evaluated in accordance with the United States Supreme Court's b urden shifting mechanism." Battaglia, 214 N.J. at 546 (citing McDonnell Dougla s Corp. v. Green, 411 U.S. 792, 802-04 (1973)). Construing the facts from plaintiff's answers to in terrogatories in a light most favorable to her, Domingo had knowledge of whi stle- blowing activity because plaintiff reported some of Alaris's nursing home shortcomings to her. Robinson was responsible for disciplining plaintiff and knew of plaintiff's complaint involving her and Bruce. After examining the record on appeal, we are satisf ied that defendants proved the reasons motivating adverse actions again st plaintiff were legitimate and not pretextual. The disciplinary actions

— ranging from warning to suspension

— for: (1) failing to provide timely activity progra ms; (2) taking lunch at inappropriate times; (3) returning to work late after attending a meeting and neglecting to notify about her anticipated tard iness; (4) being in the dayroom41 A- 3129

- 21

with her feet up on a chair while a resident was failing out of her wheelchair; (5) taking time off in violation of company policy; (6) interrupting a memorial service; (7) improperly discussing a staff member w ith a resident; (8) sticking her tongue out at a resident; and (9) accepting a p urse as a gift from a resident, which is expressly prohibited in the employee handb ook, justified her termination. Moreover, the record shows plaintiff was consistently a less tha n exemplary employee at Alaris, as evidenced by the d isciplinary actions leading up to her termination. Defendants advanced legitimate reasons for discharg ing plaintiff. Kolb , 320 N.J. Super. at 479. The trial court's finding is supported by the record, and based upon our de novo review, we d iscern no error.
III. Plaintiff next asserts that the trial court improp erly dismissed her disparate treatment and common law causes of action because d efendants never challenged those causes of action. She also contends that t he trial court ignored her testimony that plaintiff overheard Domingo sayi ng to find a reason to get rid of her, and the disciplinary actions taken after re porting the hug between Robinson and Bruce. A prima facie case for disparate treatment is made when a member of "a protected group is shown to have been singled out a nd treated less favorably42 A- 3129

- 21

than others similarly situated on the basis of an i mpermissible criterion" under anti-discrimination laws. Mandel, 373 N.J. Super. at 74 (quoting EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990)). A plai ntiff just needs to show that it was "more likely than not" that the employer bas ed its actions on unlawful considerations. Id. at 75. "The same burden shift ing methodology is employed for disparate treatment claims as for hostile work environment." Ibid. At summary judgment, "the judge must determine whether a plaintiff alleging disparate treatment has produced sufficient evidenc e to rebut the employer's alleged legitimate reason for its adverse action." Ibid. Plaintiff claimed to have overheard a plot to concoct a re ason to get rid of her, which she alleges was a pretext for her discharge. But this was insufficient to sustain a disparate treatment claim because the legitimate reason prompting termination was that she accepted a gift from a res ident in clear violation of Alaris's policy. Because we conclude there was a l egitimate reason for terminating plaintiff that she failed to rebut with evidence of pretext, i.e., discriminatory intent, she failed to show that defe ndants more likely than not used an impermissible criterion. See Viscik v. Fow ler Equip. C o. , 173 N.J. 1, 14 (2002) ("To prove pretext . . . [a plaintiff] mu st also demonstrate that the employer was motivated by discriminatory intent."); see, e.g., Mandel, 373 N.J.43 A- 3129

- 21

Super. at 76 (finding plaintiff failed to show discri minatory intent because there was no evidence that Jewish brokers were treated le ss favorably than other brokers). Therefore, it was proper to dismiss plai ntiff's disparate treatment claim. Likewise, it was appropriate to dismiss plaintiff's common law claims. Wrongful termination was properly dismissed because plaintiff was an at- will employee. See Bernard v. IMI Sys., Inc., 131 N.J. 91, 104-06 (1993) (explaining private employment is presumed to be at will and su ch an employee may be discharged with or without cause). And intentional infliction of emotional distress was properly dismissed because there is no evidence of extreme and outrageous conduct in the record. See Tarr v. Cias uilli, 181 N.J. 70, 77 (2004) (enumerating intentional infliction of emotional di stress elements as (1) intentional and (2) outrageous conduct by the defen dant, (3) proximate cause, and (4) distress that is severe; requiring the emot ional distress be "so severe that no reasonable [person] could be expected to endure it").
IV. Finally, plaintiff asserts the trial court erred b y failing to analyze the vicarious liability of Alaris's knowledge of its em ployees' discriminatory conduct and its failure to rectify it. Because we find the amended complaint was44 A- 3129

- 21

properly dismissed on summary judgment, we need not address whether vicarious liability applies here. To the extent we have not specifically addressed a ny of plaintiff's arguments, it is because we have considered those c ontentions of insufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.