SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO

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- 17 T3 DORIS GONZALEZ, Plaintiff

- Appellant,

v. CITY OF NEWARK and MATTHEW SPENCER, Defendants

- Respondents.

__________________________

Argued September 18, 2019

– Decided Before Judges Whipple , Gooden Brown and Mawla

. On appeal from the Superior Co urt of New Jersey, Law Division, Hudson County, Docket No. L

- 2777

- 17. Patrick P. Toscano, Jr. argued the cause for appellant ( The Toscano Law Firm, LLC attorneys ; Patr ick P. Toscano, Jr., on the briefs). Cheyne R. Scott argued the cause for respondents ( Chasan Lamparello Mallon & Cappuzzo, PC, attorneys ; Cheyne R. Scott, of counsel and on the brief; Cindy Nan Vogelman, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 opinio n is binding only on the parties in the case and its use in other cases is limited. R. 1:36

- 3.

A ugust 1 9 , 20202 A

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Plaintiff Doris Gonza lez appeals from the May 18, 2018 Law Division order granting summary judgment to defendants City of Newark (the City) and Lieutenant Matthew Spencer , and dismiss ing her employment related complaint with prejudice. The allegations in the complaint are bas ed upon interactions between plaintiff

— a veteran female Newark police officer of Puerto Rican descent and a cancer survivor

— and Spencer, her supervisor , and arose after plaintiff refused Spencer ' s request for a hug. Plaintiff alleged that a fter rejecting Spencer's hug request as well as other unwelcome sexual suggestions and advances , she was subjected to harassment, discrimination, retaliation and a hostile work environment where in Spencer harassed , verbally abused, and demeaned her, causing her to negati vely react and incur several disciplinary charges. In her multi

- count complaint, plaintiff alleged violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10 :5

- 1 to

- 49 , based on her "handicap/sickn ess (cancer) and her gender" ; violations of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19

- 1 to

- 14 , based on her objections to defendants' "fraudulent and/or illegal and/or unethical" activities ; violations of the New Jersey C ivil Rights Act (CRA), N.J.S.A. 10:6

- 1 t o - 2 , based on the LAD and CEPA violations ; and violations of plaintiff's3 A

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" substantive due process or equal protection rights " under the New Jersey Constitution , Articles I and II (1947) . Plaintiff also alleged civi l conspiracy as well as various common l aw tort and breach of contract claims , including intentional infliction of emotional distress, intentional interference with contractual relations, intentional interference with prospective economic advantage, breach of the covenant of good faith and fair dealing, and negligent training, supervision and retention. In granting summary judgment, the motion judge determined that plaintiff failed to demonstrate a prima facie case on any of her claims as a matter of law. On appeal, plaintiff argues there were disputes of material fact s for each of her claims that should have been submitted to a jury. Based on our review of the record and the applicable legal principles, we disagre e and affirm. Initially, we note that although plaintiff alleged a plethora of counts in her complaint , in her merits brief, she presents no legal argument or citation of law
as to why the judge erred in dismissing some causes of action

. On some claims , plaintiff simply makes cursory statements regarding the judge's decision. As a consequence, plaintiff has effectively abandoned these claims on appeal , and we will address only the dismissed causes of action squarely advanced in her brief

. See N.J. Dep't of Envtl. Prot. v. Alloway Twp. , 438 N.J. Super. 501, 505

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2 (App. Div. 20 15 ) ("An issue that is not briefed is deemed waived upon appeal."); Telebright Corp., Inc. v. Dir., N.J. Div. of Taxation , 424 N.J. Super. 384, 393 (App. Div. 2012) (finding th at a party waived its challenge on appeal based on the fact that "[a]part from o ne sentence in the conclusion section, . . . it present[ed] no arguments in support of its contention"); Mid

- Atlantic Solar Energy Indus. Ass'n v. Christie , 418 N.J. Super. 499, 508 (App. Div. 2011) (declining to address issue on appeal where the party's " cursory discussion did not properly present the issue for our consideration or afford an adequate opportunity for the [ a gency ] to respond")

. I. We derive t he following facts from evidence submitted by the parties in support of, and in opposition to, the su mmary judgment motion, viewed in the light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc. , 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co. , 142 N.J. 520, 523 (1995)). Plaintiff has served as a police officer in the Newark Police Department since 1998. During the course of her employment, plaintiff was diagnosed with thyroid cancer and received treatment in 2002 and 2 009 , a fact that was well known to other members of the D epartment. According to plaintiff, despite5 A

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having had prior interactions with Spencer during which he made unwelcome sexual advances to her, including an interaction at a 2009 Christmas party in whi ch he asked her for a hug while in a " drunk [ en ] " state , i n March 2013, "Spencer was transferred to th e midnight tour," and plaintiff was "forced to work directly for him." Plaintiff stated that once Spencer became her direct supervisor, his "sexually expl icit and unwelcome behavior . . . intensified greatly." In particular, according to plaintiff, "if [Spencer] stay[ed] at [ his ] desk [ , ] " she could "easily" maneuver around him , but "if he [stood] there , it [was] hard " for her to "squeeze through , " i nferring that he "[i]ntentionally" positioned himself in that way to sexually harass her. P laintiff also d escribed incidents where attractive female inmates were brought before Spencer to sign release paperwork , providing him with an opportunity to gaze a t their bodies. Additionally, sometime in March 2013, upon learning he was on "the promotional list" for t he position of captain, after plaintiff congratulated him, Spencer stated to plaintiff, "don't I get a hug " ? Plaintiff firmly denied the request, wh ich she interpreted as sexual rather than friendly in nature "[b]ecause he [was] not normally friendly."6 A

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Pl aintiff believed that her rebuff of Spencer's March 2013 hug request led him to "purposely single her out." Plaintiff identified several instances of alleged harassment and retaliation stemming from the hug request, including o ne that occurred the follo wi ng month, in April 2013 , when plaintiff was assigned to desk duty with Spencer serving as her supervising "desk lieutenant." On that occasion, Spencer ordered plaintiff to simultaneously conduct record checks and prepare front desk reports because the u ni t was understaffed

. While "go[ing] back and forth" between both duties , plaintiff entered an incorrect password twice in a row . As a result, the record

- checking computer system "lock ed [her]
out." According to plaintiff, Spencer "believed" she locked h erself out on purpose and a verbal altercation ensued. During the altercation, i n response to Spencer "talking down" to her and "raising his voice" at her, plaintiff stated, "you think I'm your wife. You are treating me as if I'm your wife. I'm not your wife. I'm an officer." 1 Spencer replied that plaintiff would "be so lucky to be his wife," which plaintiff interpreted as "an advance."

1 Plaintiff clarified that when she made this statement, she meant that Spencer was treating her "[i]n a demeaning way," and not the way a superior officer should address a subordinate. Plaintiff also acknowledged that the wife remark was preceded by her accusing Spencer of being "bipo lar" based on changes in his demeanor towards her.7 A

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P laintiff advised three superior officers of the incident s hortly after its

occurrence , Lieutenant Anthony Costa, L ieutenant Gerardo Nieves , and Captain Eugene Venable, all of whom recommended she submit a written statement

. F ear ing retaliation if she "put it on paper , " plaintiff declined to do so

. However,

o n V enable's order, Spencer submitted a written statement to him about the "wife" comment. Spencer stated that plaintiff "was insolent and insubordinate " when he assigned her to two duties. He reported that he told plaintiff "as long as she[ was] a Newark po lice officer and [he] need[ed] her to do more than one j ob," she must follow his orders "or be charged." Spencer acknowledged that during the argument, when plaintiff told him "[they] argued like she was [his] wife," he "[off]handedly and sarcastically [s tated] that [plaintiff] did n't want to marry [him , ]" but explained that "[t]here was no intention to

. . . make [plaintiff] feel uncomfortable." On April 10, 2013, a fter receiving Spencer's statement , to remedy the situation, Venable assigned plaintiff to "work the street [two] days and desk [two] days." To further avoid any interaction between the two , p laintiff was only assigned to desk duty when Nieves served as desk lieutenant. However ,

a ccording to p laintiff , the respite only lasted until Nieves was promoted

. Thereafter, o nce her interactions with Spen cer resumed , Spencer further8 A

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retaliated against her by ordering her on numerous " occasions to perform multiple tasks on the job at the same time." In one instance in part icular, w hen plaintiff confronted Spencer about her assignments, he replied that "as long as [he was her] boss, [she] w[ould] have to follow all of [his] orders with the exception of killing someone." Because he had a "smirk on his face" when he said it, p laintiff interpreted this statement as Spencer's way of informing her that she must "succumb[] to his sexual advances or face his often times irrational wrath

. " Out of anger, plaintiff responded that "killing someone [could] always be arranged."
P lain tiff stated that another example of Spencer's harassing and retaliatory behavior occ urred when he temporarily assigned her to partner with Officer Kiyata Derrick , a smoker

. As a cancer survivor who also suffered from other medical conditions , p laintiff believed Spencer knew that working with Derrick "would have made [plaintiff] sick . . . and caused [her] to go home and book off," giving him "more ammunition to [go] after [her]." When she advised Spencer of her inability to work with Derrick, S pencer refused to allow her to switch partners and told her to ask Derrick to "get out of the c ar to smoke." Plaintiff acknowledged that Derrick complied with her request to not smoke while in the ir patrol car.9 A

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According to plaintiff, yet another instan ce of Spencer's retaliatory conduct and harassing attitude toward her occurred on August 10, 20 14

. On that date, d uring her shift, plaintiff and her partner were "called back" to the precinct but were delayed because they responded to a motor vehicle acci dent. Plaintiff explained that because gathering victim statements is prioritized over respond ing to the precinct, plaintiff went to the hospital first to obtain the accident victim's statement . Thereafter, plaintiff and her partner repor ted to the preci nct where plaintiff asked her partner to "find out what [Spencer] wanted" as a means of "avoidi ng [him]." Plaintiff's partner advised that Spencer specifically wanted to speak to plaintiff . When plaintiff eventually responded, Spencer reportedly reprimand ed her for not responding immediately to the precinct after being called twice

. Spencer also t old plaintiff that the tow reports she had submitted earlier required changes , and that none of his "people" were going to "put[] them in" the system.
P laintiff stated that Spencer ' s order was contrary to office protocol because , typically , desk personnel enter ed the reports so that an officer need not be taken from the field to do so . A few days later, o n August 1 9 , 2014, plaintiff filed a formal administrative complaint against Spencer. In her three

- page submission,10 A

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plaintiff described the March 2013 " hug request ," the April 2013 " wife
comment ," and the "follow orders" except k illing someone edict

. P laintiff wrote that "things escalated and continued to get worse" as Spencer would "incite confrontations, provoke a negative response from [her], and ins tigate altercations to see how [Spencer] could be amused by [her] reaction." Plaintiff stated that , although she was advised by superiors to do so, she did not submit a written complaint at the time of the March or April 2013 incidents because she "was fe arful of . . . Spencer's political ties." In her administrative complaint, p laintiff also wrote that Spencer would "overly scrutinize[]" her " patrol reports, " causing her to feel like she was being "treated like an illiterate grade school child correctin g [her] own homework." Plaintiff further recounted being partnered with a smo ker as well as the August 10, 2014 tow report incident

. Plaintiff explained that "[her] body . . . react[ ed ] to the unnecessary stress[,] triggering chronic nose bleeds, migrain e headaches, excessive hair loss [ , ] and acne," in addition to chronic "laryngi tis." Plaintiff stated she was "no longer mentally or physically capable of working in those types of conditions

. "
F ollowing the submission of plaintiff's written complaint, a formal investigation by the Newark Police Department's Office of Professional11 A

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Standards (OPS) was launched. Spencer was transferred out of the fifth precinct prior to the completion of the investigation

. The investigation was conducted by OPS's Lieuten a nt Anthony Rawa, Jr. , who ultimately issued a report "exonerate[ing]" Spencer and recommending that the "investigation be closed

. " During the investigation, Rawa conducted a recorded video interview of plaintiff on September 1, 2014 , during which she reit e rated the incidents and the effects of the work environment created by Spencer

. Regarding the "tow reports" incident, p laintiff acknowledged that "her [tow] reports" contained "'many mistakes' and she had to 'redo them because of her state of mind that d a y.'" Further, w hile plaintiff acknowledged that Spencer never asked her for a date and that she had little interaction with him outside of work, plaintiff elaborated on her allegations of unwanted "sexual advances." Specifically,

a ccording to p laintiff , although she admitted telling Spencer that she did not "date black men" in an effort to stop his advances , Spencer turned her comment into "a joke," wherein on three or four occasions, Spencer said to other officers that plaintiff "don't do black." 2

2 Plaintiff acknowledged that other officers made the same comment to her, prompting her to "curse them out."12 A

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In t he course of the investigation, Rawa reviewed plaintiff's medical records , which showed that the " physical ailments" plaintiff attributed "to the stress of her work environment" were also "side effects" from medications she took for unrelated medical con di tions while under Spencer's supervision. Rawa also reviewed both plaintiff's and Spencer's performance evaluations, which were unremarkable. Additionally, Rawa obtained statements from fellow officers, including Officer Glen Drinkard . Drinkard worked on desk duty under Spencer and reported that , in that capacity, he "handled multiple tasks " simultaneously . He also affirmed that "Spencer, like most supervisors, . . . return[ed] reports to officers when corrections [were] needed." Based on his in vestigati on, relying on departmental procedures and policies, Rawa concluded that Spencer "acted within the realm of his duties as a [d]esk [l]ieutenant in . . . reviewing reports for accuracy, ordering desk personnel to perform multiple tasks and adjustin g patrol assignments when necessary." Regarding plaintiff's specific allegations of hostile work environment, Rawa concluded that plaintiff

failed to specify any incident where the conduct of . . . Spencer rose to the level of a [h]ostile [w]ork [e]nviron ment or [ h]arassment. There was no supporting documentation of these incidents when they occurred and . . . [plaintiff] never advised . . . Spencer that comments he made were unwelcome or13 A

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- 17T3 unwarranted when they did happen. . . . [Further,] Spencer was nev er found to have initiated any of these uncomfortable or humiliating conversations. The first incident that resulted in disciplinary charges plaintiff attributed
to Spencer's harassing conduct occurred on September 28, 2014 . On that date , after missing a few da ys of work due to a sinus infection, plaintiff reported to patrol duty and began to feel "weird" and "swollen." Toward the end of her shift, Lieutenant Freddy Hill

— a reported friend of Spencer

— arrived at the precinct to relieve plain tiff's supervising ser geant. Plaintiff advised Hill that she was unable to work mandatory overtime to cover staffing shortages because she was "sick and . . . [had] to go home to take [her] medication for the sinus infection and the pain." According to p laintiff, Hill said he did not care , and ordered her to report to the "West District" where Spencer worked . P laintiff believed she would be working under " [Spencer's] command" and that Hill's order was a means of harassing her. 3 Thus, in direct violation of Hill's order, plai ntiff went home at the end of her shift. As a result, on October 2, 2014, Hill notified plaintiff that she was being investigated for "insubordination toward a superior officer" and for "book[ing]

3 Plaintiff acknowledged in her deposition that she did not know whether Spencer was , in f act , on duty in the West District at that specific time.14 A

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off sick" despite receivin g "a direct lawful order that [ she] was being held over on overtime." 4 Plaintiff submitted an October 14, 2014 report providing her account of what transpired. Following an investigation, o n November 3, 2014, plaintiff was served with a preliminary not ice of disciplinary action (PNDA ) , containing a total of six charges relate d to the September 28, 2014 "booking off" incident: (1) insubordination for failing to follow Hill's order to remain on duty and work mandatory overtime; (2) failure to obey Hill's order; (3) neglect of duty by fa iling to remain on duty when ordered; (4) malingering or feigning an illness; (5) absence without leave (AWOL) , or leaving without consent of a superior officer; and (6) providing a false statement in her October 14, 2014 re port that she made Hill aware of her health condition and his response was that he did not

care. On March 3, 2015, f ollowing a departmental hearing during which plaintiff was represented by counsel , p laintiff was found guilty of insubordination , failure to obey orders, neglect of duty, malingering, and being AWOL, and received a six

- day suspension from March 16 until March 23, 2015.

4 In her deposition, plaintiff acknowledged that while she had "no [supporting] facts," she "believed . . . in [her] heart" that Spencer told Hill "to bring [her] up o n disciplinary charges" because "supervisors stick together."15 A

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P laintiff stated she was unsure when she was scheduled to return to duty after serving her suspension , and returned to work on March 25 instead of March 24 , 2015

. Upon returning to duty on March 25, plaintiff was late, made a disrespectful remark directed at Hill that she was suspended "thanks to [him] , " and "rudely snatched" a report from Hill's hand. As a result, following an investigation, on May 1, 20 15, plaintiff was again served with a PNDA, charging her with insubordination , unprofessional use of language, neglect of duty, and failure to report for du ty punctually . Plaintiff waived her right to a departmental hearing, and was found guilty on July 2 1, 2015, resulting in a forty

- five

- day suspension. Additionally, plaintiff was charged with being AWOL , and neglect of duty for failing to report to duty on March 24, 2015, as scheduled, after serving her suspension . Plaintiff waived her right to a depa rtmental hearing on the AWOL charge , and was found guilty on August 7, 2015, resulting in a thirty

- day suspension. The final incident that resulted in dis ciplinary charges against plaintiff occurred on March 9, 2015 , just prior to her serving her six

- day suspension . On that day, p laintiff and her partner responded to a domestic violence (DV) call ,16 A

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but reported they were unable to gain entry because the doo r was locked

. Because there was no timely police intervention, the victim was attacked by the assai lant a second time. In addition, despite receiving orders to "detain and conduct a field interrogation on the actor involved," plaintiff and her partner failed to do so and the assailant left the scene. When back

- up officers arrived at the scene, they co nfirmed that the building was in fact "unsecured and the locks were inoperable," contrary to plaintiff 's and her partner's prior representations

. After Lieutenant Mathew Milton received a citizen complai nt from the DV victim in connection with the police response, an investigation ensued. As a result, o n May 1 , 2015, plaintiff was served with a PNDA charging her with neglect of duty, failure to obey orders, and providing false statements because plaintif f "neglected to provide service to [the DV victim], " and the "delay in service, coupled with the additional assault, caused the Newark Police Department to be viewed in an unprofessional manner

. " Plaintiff waived her right to a departmental hearing , and, on July 21, 2015, was found guilty and suspended fo r fifteen days

. Plaintiff's suspensions on the disciplinary actions total ed ninety

- six days. Plaintiff appealed each decision to the Civil Service Commission (CSC), which17 A

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transferred the matter to the O ffice of Administrative Law (OAL) as a contested

ma tter. P laintiff challenged the suspensions because she believed defendant s

were discriminat ing again st her based on her gender, nationality , and perceived disability as a cancer survivor

. P laintiff testified in her deposition that she was treated differe ntly from " black female [ officers ]" because the D epartment "do[es not] even bring them up on charges when they go off on their supervisors." Plaintiff cited as an ex ample an instance where two black female officers engaged in verbal arguments with Hill an d were never brought up on charges. Plaintiff also referred to Spencer 's " arrest [ in Jersey City] for [a DV] incident " during which he "hit his girlfriend." Accordi ng to plaintiff, although the charges were "dismissed," unlike her, "no disciplin[ary] act ion was taken against [Spencer]."
On June 26, 2017, the Administrative Law Judge (ALJ) sustained plaintiff's suspensions arising out of the "booking off" incident , the disrespectful comment to Hill , and the DV call , but reduced the forty

- five

- day suspen sion to fifteen day s . The ALJ dismissed the charge related to the AWOL incident and the attendant thirty

- day suspension , finding "[t]here was substantial confusion as to whether the suspension days should be calculated on a work [

- ] day schedule or a calend ar schedule

. " On July 28, 2017, the CSC adopted the ALJ's findings18 A

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and recommendations, with the exception of the reduc tion of the forty

- five

- day suspension to fifteen day s . I nstead , the CSC impos ed a thirty

- day suspension. Plaintiff did not appeal the CSC's decision. On September 28, 2015, plaintiff filed her complaint. F ollowing discovery, defendants moved for summa ry judgment. On May 14, 2018, following oral argument , finding no genuine issue of material fact and viewing the facts in the light mos t favorable to plaintiff, the judge granted defendants' motion. First , the judge dismissed plaintiff's LAD claim based on hostile work environment sexual harassment. Relying on Lehmann v. Toys 'R' Us , 132 N.J. 587 (1993), the judge determined that "two requests for hugs unaccompanied by anything else," that occurred "at least four years apart"

— one at the Christmas party in 2009 and the other when Spencer made the c aptain's list in 2013

— were "not severe or pervasive." The judge explained that even consid ering Spencer's remark about following orders other than killing someone, the wife comment, and jokes a bout plaintiff not dating black men, "no reasonable juror could find [those comments] to be severe or pervasive enough to make a reasonable woman believe that the conditions of employment [we re ] altered and the working environment [wa s ] hostile or abusive. "19 A

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Turning to p laintiff's claim of hostile work environment based on her status as a person of Puerto Rican descent , the judge found " there [ was ] no evi dence " to suggest that "[ plaintiff ] was targeted for internal affairs investigations" and subjected to " disciplin e" because of her nationality. The judge explained that plaintiff present ed no viable evidence that the City failed to charge or " quashed " cha rges against non

- Puerto Rican police officers for

" similar " conduct

. T he judge rejected plaintiff's contention that the City's failure to administratively disciplin e Spencer , an African American, based on his involvement in a DV dispute with his girlfrien d in Hudson County constituted proof of disparate treatment . According to the judge, un like the DV call in which plaintiff responded in her official capacity as a police officer, Spencer 's off

- duty DV dispute occurred in his personal capacity and resulted in a dismissal of all related charges

. As to plaintiff's CEPA claim , the judge deter mined there was "no nexus" or "causal link" between the protected activity and adverse employment actions. According to the judge, the disciplinary charges, which were affirmed administratively, primarily involved Hill and had "nothing to do with . . . Sp encer , " against whom plaintiff had engaged in protected activity by lodging20 A

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her objection and complaint. T he judge explained that plaintiff's attempt to make a connect ion between the two was "just fanciful possibility." Next, t he judge dismissed plaintif f's intentional infliction of emotional distress claim. Acknowledging that under Taylor v. Metzger , 152 N.J. 490 (1998), "one word" could suffice, t he judge found base d on his review of the incidents catalogued by plaintiff that there was nothing said or done by Spencer "that [could] qualify as outrageous or beyond all possible bounds of decency in the eyes of any juror." The judge also dismissed plaintiff's conspirac y claim because there was no evidence of an agreement between Spencer and Hill. The judge explained that Spencer 's and Hill's friendship was not "enough to suggest" that " what Hill did was the result of a conspiracy , " particularly since the disciplinary c harges stemmed from plaintiff "booking out" and "leaving . . . without authorization" and "grabbing [something] out of Hill's hand." According to the judge, to suggest that "somehow . . . Hill was able to trick . . . plaintiff into doing [what she did] be cause he [was] friends with Spencer" as part of a conspiracy was "just farfetched" and "silly." Additionally, the judge dismissed plaintiff's claim for intentional interference with contractual relations , explain ing that the facts did not reveal21 A

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any cond uct that "would qualify as interference with [plaintiff's] right to economic advantage by Spencer." The judge determined that whatever loss of pay plaintiff incurred under her contract "while she was suspe nded . . . had nothing to do with Spencer" since h e did not initiate any of the disciplinary charges.
R egard ing the CRA claim, the judge stated that in order for N.J.S.A. 10:6

- 2(c) to "provide[] redress for violation of substantive rights under the
Const itution or laws of the United States o[r] New Jers ey," plaintiff had to "identif[y] the right that was denied and . . . show that her rights were denied by custom or policy." The judge determined that plaintiff failed to identify "a policy maker who denie d plaintiff her substantive rights," and pointed t o "no policy or custom" that violated her rights , noting that "[r]espondeat superior alone [was] not enough." Further, the judge considered but rejected plaintiff's claim that "Newark's anti[

- ]discriminati on policy [was] illusionary." The judge added tha t "to the degree that CEPA and LAD are the substantive rights that

. . . plaintiff is alleging [are] covered by the [CRA claims ,] then the [CRA count] has to be . . . dismissed" based on the dismissal of th e CEPA and LAD counts. Finally, the judge dismis sed plaintiff's negligence claim . The judge explained that despite City Personnel Director Kecia Daniels' s deposition22 A

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testimony admitting that she was unaware of "a lot of things that were going on," there was no evidence that the City was grossly neglige nt , nor was there any proximate cause between the City's alleged negligent supervision of the Newark Police Department and "damage [ s ] suffered by . . . plaintiff. " The judge's oral decision was memorialize d in a May 18, 2018 order , and t his appeal followe d.
II. We review a grant of summary judgment applying the same standard used by the trial court. Steinberg v. Sahara Sam's Oasis, LLC , 226 N.J. 344, 366 (2016). That standard is well

- settled.

[I]f the evidence of record

— the pleadings, depositions, answ ers to interrogatories, and affidavits

— "together with all legitimate inferences therefrom favoring the non - moving party, would require submission of the issue to the trier of fact," then the trial court must deny the motion. On the other hand, when no gen uine issue of material fact is at issue and the moving party is entitled to a judgment as a matter of law, summary judgment must be granted. [ Ibid. (quoting R. 4:46

- 2(c)).] If there is no g enuine issue of material fact, we must "decide whether the
t rial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman , 430 N.J. Super. 325, 333 (App. Div. 2013) ( quoting23 A

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Massachi v. AHL Servs., Inc. , 396 N.J. S uper. 486, 494 (App. Div. 2007) ). We review issues of law d e novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster , 213 N.J. 463, 478 (2013). " T he practical effect of [ Rule 4:46

- 2(c)] is that neither the motion court n or an appellate court can ignore the elements of the cause o f action or the evidential standard governing the cause of action." Bhagat v. Bhagat , 217 N.J. 22, 38 (2014). Applying these principles, w e agree with the motion judge's ultimate conclusion that there are no " genuinely disputed issues of [material] fact " with respect to plaintiff's claims , and that defendants are entitled to summary judgment " as a matter of law. " Troupe v. Burlington Coat Factory Warehouse Corp. , 443 N.J. Super. 596, 601 (App. Div. 2016) (citing Brill , 142 N.J. at 540). The crux of plai ntiff's argument is that she was subjected to hostile work environment sexual harassment, discriminated against because of her ethnicity, and retaliated against after complaining about the discrimination in violation of CEPA, all of which formed the basis for the other causes of action alleged. I n turn, we examine the elements of a prima facie case for each of plaintiff's claims

. A. Plaintiff's LAD C laims
T o prove a hostile work environment sexual harassment claim under the LAD, the plaintiff must "demon strate that 'the complained

- of conduct (1) would24 A

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not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) rea sonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive .'" Griffin v. City of E. Orange , 225 N.J. 400, 413

- 14 (2016) (emphasis omitted) (quoting Lehmann , 132 N.J. at 603

- 04). I n order to determine whether the conduct was "severe or pervasive," courts must consider "whether a reasonable person would believe that the conditions of employment have been altered and that the working environment is hostile." Shepherd v. Hunterdon Development al Ctr. , 174 N.J. 1, 24 (2002)

. Thus, although plaintiff only challenges the judge's evaluation of the second prong, we must also examine the third and fourth prongs because "the second, third, and fourth prongs are, to

so me degree, interdependent." Ibid. Under the second prong, [w]hether conduct is "severe or pervasive" requires an assessment of the t otality of the relevant circumstances, which involves examination of (1) "the frequency of all the discriminatory conduc t"; (2) "its severity"; (3) "whether it is physically threatening or humiliating, or a mere offensive utterance"; and (4) "whether it un reasonably interferes with an employee's work performance." [ 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)).]25 A

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While " a single act of

. . . offensive conduct cou ld, under certain conditions, create a hostile work environment ," such cases are "' rare and
extreme .'" Oakley v. Wiane cki , 345 N.J. Super. 194, 202 (App. Div. 2001) (quoting Lehmann , 1 32 N.J. at 606

- 07 ). Thus , we must consider "the cumulative effect of t he various incidents." Godfrey , 196 N.J. at 196 (quoting Lehmann , 132 N.J. at 607). Additionally, "when determining whether conduct has created a hostile work environment, the harassing conduct itself must be evaluated, 'not its effect on the plaintiff,' " id. at 197 (quoting Lehmann , 132 N.J. at 606), and the conduct must be assessed "by use of a reasonable

- person standard, which was adopted to keep the test for harassing conduct tied to reasonable community standards and yet allow for its evolution as so cietal norms mature." Ibid. (citing Lehmann , 132 N.J. at 603

- 04, 612).
Here , under the totality of the circumstances, we agree with the judge that Spencer's actions do not amount to severe or pervasive conduct under the case law

. See Faragher v. City o f Boca Raton , 524 U.S. 775, 787

- 88 (1998) (holding that merely offensive rudeness, tea sing, offhand comments, and isolated incidents do not amount to harassment ); see also Heitzman v. Monmouth Ct y . , 321 N.J. Super. 133, 147 (App. Div. 1999) ("An employment discrimination law26 A

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such as the LAD is not intended to be 'a "general civility" code' for conduct in the workplace."). Although Spencer's 2009 and 2013 hug request s were inappropriate and undoubtedly made plaintiff feel uncomfortable, the judge correctly evaluated the frequency as well as the conduct itself and "not its effect on . . . pl aintiff." Godfrey , 196 N.J. at 19 6

- 97 (quoting Lehmann , 132 N.J. at 606)

. Further, Spencer's wife comment , while offensive and insulting, resulted from a verbal confron tation in which plaintiff introduced the word "wife

. " Likewise, Spencer's comment that plaintiff should follow his orders emanated from a verbal altercation when plaintiff objected to an assignment. Additionally, Spencer's comment regarding plaintiff's d ating preference , while crude, arose from plaintiff's own account of her pr eference. Under the LAD, insults, rudeness, and even severe personality conflicts as evident here are generally insufficient to establish a hostile work environment. Taylor , 152 N. J. at 500

- 02 ; s ee Herman v. Coastal Corp. , 348 N.J. Super. 1, 20

- 2 1 (App. D iv. 2002) ("Personality conflicts, albeit severe, do not equate to hostile work environment claims simply because the conflict is between a male and female employee.") ; Flizack v. G ood News Home for Women, Inc. , 346 N.J. Super. 150, 160 (App. Div. 2001) (" [W]e recognize that27 A

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offensive, crude or inappropriate comments are not automatically discriminatory because the words used are tinged with . . . sexual connotations."); Heitzman , 32 1 N.J. Super. at 147 ( characterizing "merely offensive" comments as insuffi cient to sustain hostile work environment claim)

. Similarly , plaintiff's account of incidents where she had to squeeze by Spencer at his desk and w itness him gazing at attractive female inmates do not satisfy the element s of a prima facie LAD claim

. Although "plaintiff's work environment is affected not only by conduct directed at herself but also by the treatment of others , " Baliko v. Stecker , 275 N.J. Super. 182, 190 (App. Div. 1994) , plaintiff provided insufficient details about Spencer's purported gazing at female inmates to determine whether the conduct occurred because of plaintiff's gender or indiscriminately in the presence of other employees, including males

. See ibid. (e xplaining that "[e] vidence of sexual harassment directed at other women is relevant to both the character of the work environment and its effects on the complainant. " (quoting Lehmann , 132 N.J. at 611) ) ; Herman , 348 N.J. Super. at 20 (finding that "[t]he d efining element in hostile work environment cases is not that the conduc t was sexual in nature, but that the harassment occur[red] because of the employee's gender."). Further, plaintiff 's account of Spencer positioning himself at his own desk "was devoid28 A

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of facts and based on unsubstantiated inferences and feelings." Oakley , 345 N.J. Super. at 201. Turning to plaintiff's ethnic discrimination claim under the LAD, t o prove disparate treatment discrimination , 5 a plaintiff must establish by a preponderan ce of the evidence that: (1) plaintiff is a member of a protected class ; (2) plaintiff was performing the job consistent with the employer's expectations; (3) plaintiff suffered an adverse employment action; and (4) others not within the protected class di d not suffer adverse employment actions

. Maher v. N.J. Transit Rail Operations, Inc. , 125 N.J. 455, 480

- 81 (1991 ). "A disparate treatment claim with regard to discipline requires comparison between the defendant's conduct toward plaintiff and other membe rs of the protected class on one hand, and similarly situated em ployees not within the protected class on the other." Jason v. Showboat Hotel & Casino , 329 N.J. Super. 295, 305 (App. Div. 2000).
Once the prima facie case is established , the burden shift s to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment

5 Disparate treatment occurs when "[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin." Gerety v. Atl. City Hi lton Casino Resort , 184 N.J. 39 1, 398 (2005) (quoting Peper v. Princeton Univ. Bd. of Trs. , 77 N.J. 55, 81 (1978)).29 A

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action. Zive v. Stanley Roberts, Inc. , 182 N.J. 436, 449 (2005). If the employer

overcom es the presumption of discrimination, the burden shifts back to plai ntiff to prove that the employer's proffered reason for the adve rse employment action was merely a pretext for discrimination. Bergen Commer

. Bank v. Sisler , 157 N.J. 188, 211 (1999).
Here , plaintiff 's unsupported conclusory statement that "[o]ther offi cers of different backgrounds were not treated the same way for similar conduct" could not lead a jury to reasonably conclude that defendants imposed no or lesser discipline on non - Puerto Ricans for comparable infractions

. S ee Horizon Blue Cross Blue Shie ld of N.J. v. State , 425 N.J. Super. 1, 32 (App. Div. 2012) ( "Ba re conclusory assertions, without factual support in the record, will not defeat a meritorious application for summary judgment." (citing Brae Asset Fund, L.P.
v. Newman , 327 N.J. Super. 129, 134 (App. Div. 1999)) ) ; accord Puder v. Buechel , 183 N.J. 428, 4 40

- 41 (2005) ("[C]onclusory and self

- serving assertions by one of the parties are insufficient to overcome the [summary judgment] motion.")

. P laintiff relies on the fact that "Spencer, an Afri can - American male[,] was arrested in Hudson County on a [DV] charge for beating up his girlfriend" but was never administratively charged or suspended by the Department. However,30 A

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"[a]n 'inference of discrimination ' does not arise 'anytime a single member of a

non - protected group was allegedly treated more favorably than one member of the protected group, regardless of how many other members of the non

- protected group were treated equally or less favorably.'" Jason , 329 N.J. Super. at 30 7 (quoting Simpson v. Kay Jewelers , 142 F.3d 639, 646 (3d Cir. 1998)). Further, as the judge noted, Spencer's off

- duty DV incident was not comparable misconduct to plaintiff's because Spencer was not acting in an official capacity

. In contrast, the disciplinary charge tha t arose from plaintiff's malfeasance in responding to the DV call occurred in her official capacity. O ur Supreme Court has held that "[a]nti

- discrimination laws do not permit courts to make personnel decisions for employers," and instead "simply require t hat an employer's personnel decisions be based on criteria other than those proscribed by law." Peper , 77 N.J. at 87. Inasmuch as the City's decision regarding whether or not to file disciplinary charges against Spencer for the DV incident was a
personne l decision , and there is no evidence in the record to indicate that it improperly considered plaintiff's or Spencer's race or ethnicity in making its decision , there is no legal proscription

. Moreover, plaintiff o ffered no other evidence that defendants' legitimate , nondiscriminatory reasons for filing disciplinary charges against her, charge s31 A

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that were largely affirmed by the ALJ and adopted by the CSC, were pretextual.
See Viscik v. Fowler Equip. Co. , 173 N.J. 1 , 14 (2002) ("To prove pretext, . . . a pl aintiff must do more than simply show that the employer's reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent."). Indeed , there is no evidence in the record that "an invidious discriminatory reason wa s more likely than not" the cause of plaintiff's disciplinary charges to withstand summary judgment

. Zive , 182 N.J. at 456 (quoting Fuentes v. Perskie , 32 F.3d 759, 764 (3d Cir. 1994) )

. B . Plaintiff's CEPA Claim Turning to plaintiff's CEPA claim, " [t] he purpose of CEPA . . . is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abb amont v. Piscataway Twp. Bd. of Educ. , 138 N.J. 405, 4 31 (1994). To establish a prima facie case under CEPA, a plaintiff must demonstrate that:

(1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regul ation 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) ;32 A

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- 17T3 (3) an adverse employment action was taken against him or her; and (4) a causal connection exi sts between the whistle

blowing activity and the adver se employment action. [ Lippman v. Ethicon, Inc. , 222 N.J. 362, 380 (2015) (quoting Dzwonar v. McDevitt , 177 N.J. 451, 462 (2003)).] Pertinent to this appeal, N.J.S.A. 34:19

- 3(c) provides that an emp loyer shall not take retaliatory action against an emp loyee because the employee:

[o]bjects to, or refuses to participate in any activity, policy[,] or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law, . . . ; (2) is fraudulen t 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. [N.J.S.A. 34:19

- 3(c).] A plaintiff who brings a claim pursuant to N.J.S.A. 34:19

- 3(c) need not show that the emp loyer actually violated the law or a clear mandate of public policy. Dzwonar , 117 N.J. at 462; Gerard v. Camden Cty. Health Servs. Ctr. , 348 N.J. Super. 516, 522 (App. Div. 2002). Instead, a plaintiff need only show33 A

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that he or she "reasonably believed" t hat to be the case. Estate of Roach v. TRW,
Inc. , 164 N.J. 598, 613 (2000).

" CEPA does not require any magic words in communicating an employee's reasonable belief of illegal activity. " Beasley v. Passaic Cty. , 377 N.J. Sup er. 585, 605 (App. Div. 200 5). "The object of CEPA is not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful." Mehlman , 153 N .J. at 193

- 94. " CEPA is designed to protect employees who ' blow the whistle ' on illegal or unethical activity committed by their employers or co

- employees, and as such, is remedial legislation that should be construed liberally to achieve its purpose. " B easley , 377 N.J. Super. at 605 (quoting Estate of Roach , 164 N.J. at 609

- 10 )

. Here, plaintiff failed to satisfy the third and fourth prongs to establish a prima facie CEPA claim. Regarding the third prong, the substantiated disciplinary charges that resul ted in plaintiff' s suspensions cannot establish retaliation for plaintiff engaging in protected activity by objecting to and reporting Spencer's conduct because the disciplinary charges arose from reasons unrelated to plaintiff's complaint. See Higgins v. Pascack Valley H osp. , 158 N.J. 404, 424 (1999) ("Filing a complaint . . . does not insulate the complaining34 A

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employee from discharge or other disciplinary action for reasons unrelated to the complaint."). Moreover, while plaintiff disputed the legal rami fications, she

ac knowledged that she did in fact engage in the conduct that ultimately led to her disciplinary charges. Beasley , 377 N.J. Super. at 607 ("Where the affected party does not deny committing an infraction that resulted in discipline, the disc ipline cannot be considered 'proscribed reprisal.'") ; see also Hancock v. Borough of Oaklyn , 347 N.J. Super. 350, 361 (App. Div. 2002) (holding that

w hen a plaintiff is " afforded a hearing " and " represented by counsel, " he or she

" cannot claim that . . . s ubstantiated disciplinary charges and resulting brief suspensions from work [are] retaliatory." )

. Further, notwithstanding the timing, because the disciplinary charges were filed against plaintiff by superiors other than Spencer , and none of the incident s for which plaintiff was disciplined involved Spencer, there is no causal connection between the whistle

- blowing activity and the adverse employment action to establish the fourth prong

. C. Plaintiff's CRA Claim The CRA was adopted in 2004 "for the b roa d purpose of assuring a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti

- discrimination protection." Ramos v.35 A

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Flowers , 429 N.J. Super. 13, 21 (App. Div. 2012) (quoting Owens v

. Feigin , 194 N.J. 607, 611 (2008) ) . N.J.S.A. 10:6

- 2(c) provides an individual a remedy in the form of a civil action for damages against private and public defendants if the individual can demonstrate that he or she

has been deprived of any substantive d u e process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment o f those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law

. . . . Thus , there are "two types of private claims . . . under t his statute: (1) a claim when one is 'deprived of a right,' and (2) a claim when one's rights have been 'interfered with by threats, intimidation, coercion or force.'" Lapolla v. Cty. of Union , 449 N.J. Super. 288, 306 (App. Div. 2017) (quoting Felicioni v. Admin. Office of Courts , 404 N.J. Super. 382, 400 (App. Div. 2008)). A cause of action brought under the CRA has the same elements as the analogous federal Civil Rights Act, 42 U.S.C. § 1983 (Section 1983), after which New Jersey's CRA was modeled. Re zem Family Assocs. , LP v. Borough of Millstone , 423 N.J. Super. 103, 115 (App. Div. 2011); see also Filgueiras v. Newark Pub

. Sch

. , 426 N.J. Super. 449, 468 (App. Div. 2012). Similar to a36 A

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cause of action under Section 1983, in order to prevail under the C RA, a plaintiff must first identify "'the person acting under color of law[]' that has caused the alleged deprivation," and then "identify a 'right, privilege or immunity' secured to the claimant" by the state or federal constitution or state or federal la ws. Rezem , 423 N.J. Super. at 1 14

- 15 (quoting Rivkin v. Dover Twp. Rent Leveling Bd. , 143 N.J. 352, 363 (1996)). "Although local governments are 'persons' for purposes of [Section] 1983, a municipality generally cannot be held liable in a [Section] 1983 action for the acts of employees under the principle of respondeat superior." Stomel v. City of Camden , 192 N.J. 137, 145 (2007). "An exception exists when an official municipal 'p olicy or custom, whether made by its lawmakers or by those whose edicts o r acts may fairly be said to represent official policy,' is the cause of the constitutional deprivation." Ibid. (quoting Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 694 (1978)).

Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official

— even a policymaking official

— has discretion in the exercise of partic ular functions does not, without more, give rise to municipal liability b ased on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held li able.37 A

- 4524

- 17T3 [ Loigman v. Twp. Comm. , 185 N.J. 566, 591 (2006) (quoting Pembaur v . City of Cincinnati , 475 U.S. 469, 4 81

- 82 (1986) )

. ] Here, to support her CRA claim, plaintiff relies heavily on Daniels' s deposition testimony

. As the City's personnel director, Daniels was "responsible for on

- boarding . . . employees [meaning the] hir ing, discipline, [and] termination[ of employees]." She also implemented employee benefits and was "in charge of the training unit," among other th ings. However, Daniels acknowledged that the Chief of Police d id not report to her. Daniels testified that because the police department is a paramilitary organization, most of plaintiff's complaints and allegations of harassment, discrimination , and
ret aliation were handled "internally" through the chain of command. Thus, Daniels never learned about the alle gations until the litigation was filed. Daniels confirmed , however, that the City had an anti

- discrimination, anti

- harassment, and anti

- retaliation policy in place during the relevant time period, which allowed plaintiff to circumvent the chain of command

. 6
Based on this testimony, p laintiff asserts that " Newark's long

- established custom of promoting woefully deficient workplace policies and pract ices"

6 Plaintiff acknowledged that the Department required each member to undergo mandatory in

- service sexual harassment training two times pe r year.38 A

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regarding sexual d iscrimination, harassment, and retaliation " compromise d the safety and well

- being of . . . employees who are victims of illegal conduct in the workplace." However, Daniels is not t he official responsible for establishing final gove rnment policy respecting these activit ies in the police department for the municipality to be held liable. F urther, other than the LAD and CEPA, plaintiff failed to specify the constitutional rights allegedly infringed

. Thus , because plaintiff's CRA clai m is dependent upon the success of her CEPA and LAD claims , both of which have been rejected, plaintiff's CRA claim must also fail

. D. Plaintiff's Intentional Infliction o f Emotional Distress Claim
To prove intentional infliction of emotional distress, a plaintiff must show: (1) defendant acted intentionally; (2) defendant's

conduct was "so outrageous in chara cter, 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;" (3) defendant's actions proximately caused him [or her] emotional distress; and (4) the emot ional distress was "so severe that no reasonable [person] could be expected to endure it." [ Segal v. Lynch , 413 N.J. Super. 171, 191 (Ap p. Div. 2010) (second alteration in original) (quoting Buckley v. Trenton Sav. Fund Soc'y , 111 N.J. 355, 366 (1988)).]39 A

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We have described the second required element "as an 'elevated threshold' that is satisfied only in extreme cases." Ingraham v. Ortho

- McNeil Pharm. , 422 N.J. Super. 12, 21 (App. Div. 2011) ( Griffin v. Tops Appliance City, Inc. , 337 N.J. Super. 15, 23 (Ap p . Div. 2001) )

. "A court determines whether outrageous conduct could possibly be found as a matter of law based on the facts, while a jury determines if in fact that conduct was outrageous." G.D. v. Kenny , 411 N.J. Super. 176, 194 (App. Div. 2009) (citin g Taylor , 152 N.J. at 509

- 10 ) ; see also Buckley , 111 N.J. at 367. Here, we conclude, as did the judge, that Spencer's conduct , while troubling, did not rise to the level of extreme and outrageous conduct necessary to support a cause of action for intenti o nal infliction of emotional distress. "Indeed, the workplace has too many personal conflicts and too much behavior that might be perceived as uncivil for the courts to be used as the umpire for all but the most extreme workplace disputes." Ingraham , 422 N.J. Super. at 23 ; s ee Taylor , 152 N.J. at 509 (finding a superior's single use of a racial slur towards the plaintiff to be extreme and outrageous); Flizack , 346 N.J. Super. at 162 (explaining that "[m]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" are insufficient to meet the outrageous standard) ; see also Ingraham , 422 N.J. Super. at 21 ( cata loguing cases in which40 A

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courts have found ext reme and outrageous conduct and cases in which it did not). E. Plaintiff's Civil Conspiracy Claim Our Supreme Court describe d a civil conspiracy as a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful a ct by unlawful means, the principal element of which is an agreement between t he parties to inflict a wrong against or injury upon another, and an overt act that results in damage. [ Banco Popular N. Am. v. Gandi , 184 N.J. 161, 177 (2005) (quoting M organ v . Union Cty. Bd. of Chosen Freeholders , 268 N.J. Super. 337, 364 (App. Div. 19 93)).]

" T o establish a conspiracy, 'it simply must be shown that there was "a single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences."'" Morgan , 268 N.J. Super. at 365 (alteration in original) (quoting Hampton v. Hanrahan , 600 F.2d 600, 621 (7th Cir. 1979), rev'd in part on other grounds , Hanrahan v. Hampton , 446 U.S. 754 (1980)). Accordingly, a civil conspiracy exists where the purported conspirator understood "the gen eral objectives of the scheme, accept[ed] them, and agree[d], either explicitly or implicitly, to do [their] part to further them." Gandi , 184 N.J. at 177 (quoting Jones v. City of Chicago , 85641 A

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F.2d 985, 992 (7th Cir. 1988)). Notably , the "gist of the cl aim i s not the unlawful agreement, 'but the underlying wrong which, absent the conspiracy, would give a right of action.'" Id. at 177

- 78 (quoting Morgan , 268 N.J. Super. at 364). Here, other than "unsubstantiated inferences and feelings," Oakley , 345
N .J. Su per. at 201, the record is devoid of any evidence that Spencer and Hill composed a "single plan" to file disciplinary charges against plaintiff, that they "accept[ed]" those objectives, and that th ey agreed to carry out the plan

. Morgan , 268 N.J. Su per. a t 365; Gandi , 184 N.J. at 177. Thus, this claim was properly dismissed. F. Plaintiff's Tortious Interference w ith Contractual Relations Claim A claim of tortious interference with contractual relations requires plaintiff to demonstrate: "(1) actual inter ference with a contract; (2) that the interference was inflicted intentionally by a defendant who is not a party to the contract; (3) that the interference was without justification; and (4) that the interference caused damage." Russo v. Nagel , 358 N.J. S uper. 254, 268 (App. Div. 2003). A claim must be based on facts showing that the interference was done intentionally and with malice. Printing Mart

- Morristown v. Sharp Elecs. Corp. , 116 N.J. 739, 751 (1989). "For purposes of this tort, '[t]he term malic e is not used in the literal sense requiring ill will toward the plaintiff,'" but rather42 A

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meaning that the harm was inflicted intentionally and without justification or

excuse. Ibid. (alteration in original).

" [E] mployees and agents of a corporatio n can be charged with the tort of intentional interference with a plaintiff's contract with the corporation. " Vosough v. Kierce , 437 N.J. Super. 218, 234 (App. Div. 2014). " However, ' if an employee or agent is acting on behalf of his or her employer or p rincipal, then no action for tortious interference will lie. ' " Ibid. (quoting DiMaria Const. , Inc. v. Interarch , 351 N.J. Super. 558, 568 (App. Div. 2001 ))

. "[A]n action for tortious interference will lie" only if "the employee or agent is acting outsid e the scope of his or her employment or agency." Ibid. (quoting DiMaria Const. , 351 N.J. Super. at 568). Here, plaintiff cannot establish that Spencer actually interfered with her contract with the City because none of the disciplinary charges that resul ted in plaintiff's suspensions and loss of pay were filed by Spencer. Moreover, as a party to the contract, the City cannot be liable for this tort. Kopp, Inc. v. United Techs. , 223 N.J. Super. 548, 559 (App. Div. 1988). Thus, the claim was properly dis missed.43 A

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- 17T3 G. Plaintiff's Negligence Claim Under the Torts Claims Act, "[e]xcept as otherwise provided by th[e] ac t, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employe e or any other person

. " N.J.S.A. 59:2

- 1(a). N.J.S.A. 59:2

- 3(d) provides the following exception :

A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existi ng resources, including those allocated for equipment, facilities and personnel unless a court concludes that the d etermination of the public entity was palpably unreasonable. Thus, to establish liability against a public entity, a plaintiff must demonstr ate a prima facie case that the action or inaction of the public entity was "palpably unreasonable." Coyne v. Dep' t of Transp. , 182 N.J. 481, 493 (2005). The term "palpably unreasonable" implies "behavior that is patently unacceptable under any given ci rcumstance." Muhammad v. N.J. Transit , 176 N.J. 185, 195 (2003) ( quoting Kolitch v. Lindedahl , 100 N.J. 485, 494 (1985) ); see also Ogborne v. Mercer Cemetery Corp. , 197 N.J. 448, 459 (2009) ( explaining that to constitute "palpably unreasonable" conduct, " it must be manifest and obvious that no prudent person would approve of [the entity's] course of action or ina ction

. " (quoting Kolitch , 100 N.J. at 493 ) )

. Further ,44 A

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w hether the public entity's behavior was palpably unreasonable is generally a question of f act for the jury. See Vincitore v. N.J. Sports & Exposition Auth. , 169 N.J. 119, 130 (2001). However, a det ermination of palpable unreasonableness, "like any other fact question before a jury, is subject to the court's assessment whether it can reasonab ly be made under the circumstances presented." Maslo v. City of Jersey City , 346 N.J. Super. 346, 351 (App. D iv. 2002) (quoting Black v. Atlantic Highlands , 263 N.J. Super. 445, 452 (App. Div. 1993)). Accordingly, "the question of unreasonableness may be decided by the court as a matter of law in appropriate cases." Id. at 350 (citing Garrison v. Twp. of Middle town , 154 N.J. 282, 311 (1998)).
P alpably unreasonable conduct "implies a more obvious and manifest breach of duty" than negligence , "and impose s a more onerous burden on the plaintiff

. " Williams v. Phillipsburg , 171 N.J. Super. 278, 286 (App. Div. 1979 ). Here, a review of the undisputed material facts reveals that plaintiff failed to meet this burden, and that n o rational factfinder could find that the City acted in
a " palpably un reasonable" manner in its decision

- making process as it pertained
to its handling of plaintiff's complaints, its training on discrimination and45 A

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harassment issues, and its supervision of Spencer . Thus, plaintiff's claim fails as a matter of law.
In sum , plaintiff failed to establish the prima facie elements of her claims ,

a nd t he judge ' s decision granting defendants summary judgment and dismiss ing the complaint with prejudice is legally supportable. To the extent we hav e not addressed a particular argument, it is because either our disposition makes it unnecessary or the ar gument was without sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E). Affirmed.