SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5647-17T2

DIANA STEVENS,

Plaintiff-Appellant,

v.

COUNTY OF HUDSON, and

NUZHAT IQBAL, improperly 

pled as NUZHAT IGBAL,

Defendants-Respondents.

_____________________________

Submitted December 16, 2019 – Decided

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3792-16.

Eldridge Hawkins, attorney for appellant.

Chasan Lamparello Mallon & Cappuzzo, attorneys for 

respondents County of Hudson, and Nuzhat Iqbal, in 

her official capacity only (Cindy Nan Vogelman, of 

counsel and on the brief; Qing Hua Guo, on the brief).

Weiner Law Group LLP, attorneys for respondent 

Nuzhat Iqbal, in her individual capacity (Jacqueline A. 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

January 15, 2020
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DeGregorio, of counsel and on the brief; Julia O. 

Donohue, on the brief).

PER CURIAM

Diana Stevens (plaintiff) appeals from two July 13, 2018 orders granting

summary judgment in favor of County of Hudson (County) and Nuzhat Iqbal

(Iqbal)1in her official capacity and individual capacity (collectively 

defendants). We affirm. 

In August 2005, plaintiff began working for the County as a senior 

personnel technician in the Personnel Department at Meadowview Psychiatric 

Hospital (the Hospital). She reported to Iqbal, the Hospital Administrator, from 

the start of her employment until October 2014, when she started reporting to 

Chief Nursing Officer Alice Agecha. In 2011, Charulata Kachalia (Kachalia), 

one of the personnel clerks supervised by plaintiff, told Iqbal that she wanted to 

resign or transfer because of how plaintiff treated her. The County investigated 

Kachalia's complaint, and a conflict resolution meeting was conducted between 

Iqbal, Kachalia, and plaintiff. 

1

 Defendant Iqbal is improperly pled in plaintiff's complaint and briefs as 

"Igbal."
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Shortly thereafter, Iqbal issued plaintiff a written warning for neglect of 

duty, incompetence, and conduct unbecoming a public employee. Plaintiff was 

on leave for three weeks, during which Iqbal supervised the department. She 

observed that plaintiff maintained the department in a disorganized fashion, with 

"coffee and food stain[ed]" confidential documents strewn about the room. 

Plaintiff also failed to file disciplinary paperwork and employee performance 

evaluations, failed to timely submit timesheets, and made significant payroll 

errors. Iqbal prepared a remediation plan for plaintiff.

On May 17, 2013, plaintiff received a Notice of Minor Disciplinary Action 

for failing to follow up on an employee's leave, which resulted in a mistaken 

continuation of health benefits by the County. She was charged with: (1) 

neglect of duty; (2) incompetence, inefficiency or failure to perform duties; (3) 

insubordination; and (4) conduct unbecoming a public employee. She was 

suspended for two days. Iqbal continued to receive complaints about plaintiff's 

management of the department, and Kachalia complained to Iqbal almost daily, 

while the other clerk came to Iqbal in tears stating that "she cannot take it 

anymore."

In August 2014, the new Hospital Medical Director told plaintiff that the 

nutritionist Liliya Racz (Racz) was being paid for more hours than she actually 
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worked. Plaintiff informed Iqbal, who said that she would investigate. Iqbal 

was satisfied that there was no discrepancy and told plaintiff that the issue was 

resolved. But in October 2014, plaintiff brought disciplinary charges against 

Kachalia and recommended that she be suspended for two days. The Deputy 

Director of the Department of Health & Human Services (the DHHS) 

investigated and found that no discipline was warranted against Kachalia.

At a morning meeting on October 10, 2014, plaintiff allegedly placed a 

file in front of Iqbal and stated "my staff said you have been behind closed doors 

so they could not have the paperwork and payroll signed." Plaintiff was issued 

a Notice of Minor Disciplinary Action, and she was suspended for three days 

for insubordination, incompetence, and conduct unbecoming of a public 

employee. The Notice stated that her conduct was inappropriate for the setting,

and that she failed to follow Iqbal's directive regarding how to best access her. 

Plaintiff appealed the discipline and the matter was forwarded to the Director of 

the DHHS, Darice Toon (Toon). Toon upheld two of the three 

charges⸺insubordination and conduct unbecoming a public employee⸻and 

sustained the suspension. Plaintiff did not appeal this decision to the Civil 

Service Commission.
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When the Pulaski Skyway was closed for repairs in 2014, plaintiff was 

permitted to work an earlier shift, but Iqbal told her that they would revisit the 

issue in six months. On October 16, 2014, Iqbal informed plaintiff that she 

would resume her original work schedule. Plaintiff claims that this was in 

retaliation for the Racz timesheet incident. But she also acknowledged that Iqbal 

was permitted to adjust her hours. Additionally, plaintiff alleges that some of 

her vacation time was denied in retaliation. She requested eight days off, but 

was only allowed one day because the request was not timely, as required by 

County policy.

On January 21, 2015, plaintiff filed an internal complaint against Iqbal. 

Plaintiff alleged that Iqbal created a hostile work environment based on four 

incidents: (1) plaintiff's three-day suspension; (2) Iqbal changing plaintiff's 

work hours back to her original schedule; (3) plaintiff's vacation time being 

cancelled due to a staff shortage; and (4) plaintiff receiving extra work.

In September 2015, plaintiff received a Preliminary Notice of Disciplinary 

Action (PNDA) for (1) incompetence, inefficiency, or failure to perform duties; 

(2) neglect of duty; (3) insubordination; (4) conduct unbecoming a public 

employee; and (5) other sufficient cause. The PNDA cited fifteen different 

infractions, and stated that plaintiff "failed, neglected and/or refused to perform 
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her duties and/or has performed said duties in a less than satisfactory manner 

over a protracted period of time. The performance of [plaintiff] has not 

improved, despite consultation, coaching, training and discipline."

A hearing before an outside officer was conducted over the course of five 

days. Plaintiff was represented by counsel who cross-examined County 

witnesses. At the conclusion of the County's case, plaintiff withdrew her appeal. 

But, the hearing officer still rendered a decision, determining that the County 

proved ten of the fifteen infractions, and finding plaintiff was "guilty of failure 

to perform her duties either through incompetence or inefficiency," and neglect 

of duty. The hearing officer stated, "[h]er failures resulted in cost to the County 

in additional overtime and the inefficient retention and layoff of temporary 

employees. Her actions in allowing documents, some of which are certainly 

confidential and may even be privileged, to remain loose and unsecured is of 

serious concern." The hearing officer concluded that plaintiff:

[D]id not respond to the counselling by demonstrating 

an improvement in her work. She continued to exhibit 

a lax attitude about her job responsibilities during the 

period of time covered by these [s]pecifications. . . . 

Given the number of items and the seriousness of the 

circumstances, . . . suspension is warranted. 

The hearing officer determined that the appropriate penalty would be one month 

without pay, but with the continuation of benefits. Plaintiff received a Final 
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Notice of Disciplinary Action (FNDA) on November 21, 2016, which she did 

not appeal.

On September 21, 2016, plaintiff filed a complaint against the County and 

Iqbal in her official and individual capacities. The complaint alleged: (1) 

discrimination based on race, hostile work environment and retaliation under the 

New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; (2) 

interference with beneficial economic interest, breach of implied covenant of 

good faith and fair dealing, violation of the New Jersey Constitution; (3) 

violation of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2; 

(4) violation of the N.J. Const., art. 1, ¶ 1, 6, 18, and 19, and Peper v. Princeton 

University Board of Trustees, 77 N.J. 55 (1978); (5) misuse and abuse of 

process; and (6) violation of the New Jersey Racketeering Influenced and 

Corruption Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2.

After discovery, the County defendants moved for summary judgment. 

Iqbal also moved for summary judgment in her individual capacity. Plaintiff 

cross-moved for partial summary judgment. Judge Martha D. Lynes heard oral 

argument, and granted summary judgment in favor of the County defendants and 

Iqbal individually, denied plaintiff's cross-motion, and dismissed plaintiff's 

complaint with prejudice.
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When reviewing an order granting summary judgment, we apply "the 

same standard governing the trial court." Oyola v. Xing Lan Liu, 431 N.J. Super. 

493, 497 (App. Div. 2013). A court should grant summary judgment when the 

record reveals "no genuine issue as to any material fact" and "the moving party 

is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We owe no 

special deference to the motion judge's conclusions on issues of law. Manalapan 

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We

consider the facts in a light most favorable to the non-moving party. Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is 

genuine only if, considering the burden of persuasion at trial, the evidence 

submitted by the parties on the motion, together with all legitimate inferences 

therefrom favoring the non-moving party, would require submission of the issue 

to the trier of fact." R. 4:46-2(c).

On appeal, plaintiff generally argues that the trial judge applied an 

incorrect legal standard and did not issue an opinion that abides by court rules;

that her LAD, tort, and constitutional claims should not have been dismissed;

and that Iqbal is individually liable. 
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I.

Plaintiff has brought claims against Iqbal in both her official and 

individual capacities. "A public employee is not liable for an injury resulting 

from the exercise of judgment or discretion vested in [her]," N.J.S.A. 59:3-2, 

"for injury caused by [her] instituting or prosecuting any judicial or 

administrative proceeding within the scope of [her] employment," N.J.S.A. 

59:3-8, or "for an injury caused by [her] misrepresentation" while she is "acting 

in the scope of [her] employment." N.J.S.A. 59:3-10. But, nothing shall 

"exonerate a public employee" if her "conduct was outside the scope of [her]

employment or constituted a crime, actual fraud, actual malice or willful 

misconduct." N.J.S.A. 59:3-14. Here, Iqbal was acting within the scope of her 

employment, and plaintiff has not provided evidence to the contrary.

Plaintiff maintains that Iqbal is not entitled to qualified immunity under 

the NJCRA. "The doctrine of qualified immunity operates to shield 'government 

officials performing discretionary functions generally . . . from liability for civil 

damages insofar as their conduct does not violate clearly established statutory 

or constitutional rights of which a reasonable person would have known.'" 

Morillo v. Torres, 222 N.J. 104, 116 (2015) (alteration in original) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Iqbal contends that qualified 
10 A-5647-17T2

immunity was designed to protect employees like her, because to the extent that 

she was involved, "she was within the scope of her employment, following the 

relevant policies of her employer, and deprived no one of any kind of civil right 

under color of law without due process."

Plaintiff alleges that Iqbal is individually liable under the LAD because 

she held a supervisory position and aided or abetted in the wrongful conduct. 

See Herman v. Coastal Corp., 348 N.J. Super. 1, 27 (App. Div. 2002); Cicchetti 

v. Morris Cty. Sheriff's Office, 194 N.J. 563, 594 (2008). Our Court explained 

that co-employees "could not aid or abet their own acts." Cicchetti, 194 N.J. at 

573. Plaintiff has not presented any evidence to defeat the entry of summary 

judgment. Thus, we affirm as to Iqbal in her individual capacity.

II.

The LAD "guarantees that all citizens be afforded the civil rights promised 

by the State Constitution." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 445-46

(2005). The statute's goal is to eradicate the "'cancer of discrimination.'" Id. at

446 (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (1988)). The LAD provides 

that it is unlawful 

[f]or an employer, because of the race, creed, color, . 

. . sex, . . . of any individual, . . . to refuse to hire or 

employ or to bar or to discharge . . . , from employment 

such individual or to discriminate against such 
11 A-5647-17T2

individual in compensation or in terms, conditions or 

privileges of employment[.]

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

"The LAD prevents only unlawful discrimination; it does not prevent the 

termination or change of employment of any person who 'is unable to perform 

adequately the duties of employment, nor [does it] preclude discrimination 

among individuals on the basis of competence, performance, conduct or any 

other reasonable standards.'" Zive, 182 N.J. at 446 (alteration in original) 

(quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002)). That is, "the LAD 

acknowledges the authority of employers to manage their own businesses." Ibid. 

[I]t is not the purpose of the LAD "to prevent the 

termination or change of the employment of any person 

who in the opinion of the employer, reasonably arrived 

at, is unable to perform adequately the duties of 

employment, nor to preclude discrimination among 

individuals on the basis of competence, performance, 

conduct or any other reasonable standards[.]"

[Jason v. Showboat Hotel & Casino, 329 N.J. Super. 

295, 302-03 (App. Div. 2000) (quoting N.J.S.A. 10:5-

2.1).]

Further, "[a]ll employment discrimination claims require the plaintiff to bear the 

burden of proving the elements of a prima facie case." Victor v. State, 203 N.J. 

383, 408 (2010).
12 A-5647-17T2

New Jersey has adopted the federal standard that the Supreme Court of 

the United States proclaimed in McDonnell Douglas Corp. v. Green, 411 U.S. 

792, 802 (1973). See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595 (1988); 

Zive, 182 N.J. at 447. In Clowes, our Supreme Court held that an employee 

must prove four elements to show a prima facie case of discrimination: (1) that 

he or she was in a "protected group"; (2) that he or she was performing her job 

at a level that "met his [or her] employer's legitimate expectations"; (3) that he 

or she "nevertheless was fired"; and (4) that the defendant "sought someone to 

perform the same work after he [or she] left." 109 N.J. at 597 (internal quotation 

marks and citation omitted).

Our Supreme Court further explained that "the 'employer's legitimate 

expectations' is an objective and not a subjective standard," reserving "the issue 

of the employer's subjective expectations for the pretext stage of a LAD case." 

Zive, 182 N.J. at 454 (citation omitted). To satisfy that objective standard, "[a]ll 

that is necessary is that the plaintiff produce evidence showing that she was 

actually performing the job prior to the termination." Ibid. After the plaintiff 

produces such evidence, the burden shifts to the defendant to "rebut the 

presumption of undue discrimination by articulating some legitimate, 
13 A-5647-17T2

nondiscriminatory reason for the employee's rejection." Andersen v. Exxon Co., 

89 N.J. 483, 493 (1982).

Plaintiff, an African American woman, brought claims for racial 

discrimination, retaliation, and hostile work environment. First, a claim of 

racially disparate treatment requires the employee to prove a discriminatory 

motive, which in some circumstances can be inferred from the disparate 

treatment itself. See Peper, 77 N.J. at 81. Plaintiff must "'demonstrate not only 

a hostility toward members of the employee's class, but also a direct causal 

connection between that hostility and the challenged employment decision.'" 

Smith v. Millville Rescue Squad, 225 N.J. 373, 394 (2016) (quoting Bergen 

Commercial Bank v. Sisler, 157 N.J. 188, 208 (1999)). Relevant evidence would 

include proof "'that white employees involved in acts . . . of comparable 

seriousness . . . were nevertheless retained[.]'" Jason, 329 N.J. Super. at 305 

(first and second alterations in original) (quoting McDonnell Douglas, 411 U.S. 

at 804).

Here, plaintiff claims that her suspensions were based on her race, but she 

fails to provide a "direct causal connection" between the two. Smith, 225 N.J. 

at 394 (internal quotation marks and citation omitted). She has also failed to 

provide evidence that non-African American employees charged with 
14 A-5647-17T2

comparable infractions received dissimilar or less serious discipline. The judge 

aptly explained that, "[p]laintiff has not explained or shown through any proofs 

as to why the decision to suspend her for three [days] was based on her 

membership [in] a protected class. Defendants have demonstrated that the 

disciplinary decisions made regarding . . . [p]laintiff were made with all 

procedural and substantive due process[.]"

Next, plaintiff alleges that she was a victim of unlawful retaliation as a 

result of the Racz timesheet incident. The prima facie elements of a retaliation 

claim under the LAD require a plaintiff to demonstrate that: "(1) plaintiff was 

in a protected class; (2) plaintiff engaged in protected activity known to the 

employer; (3) plaintiff was thereafter subjected to an adverse employment 

consequence; and (4) that there is a causal link between the protected activity 

and the adverse employment consequence." Victor, 203 N.J. at 409. After the 

plaintiff establishes the prima facie elements, the defendant must provide a 

legitimate, non-retaliatory reason for its decision. Romano v. Brown & 

Williamson Tobacco Corp., 284 N.J. Super. 543, 549 (App. Div. 1995). 

"Thereafter, the plaintiff must come forward with evidence of a discriminatory 

motive of the employer, and demonstrate that the legitimate reason was merely 

a pretext for the underlying discriminatory motive." Ibid. "Temporal proximity, 
15 A-5647-17T2

standing alone, is insufficient to establish causation." Hancock v. Borough of 

Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002).

Here, plaintiff claims that the Racz timesheet incident was an unlawful 

activity. But, after plaintiff informed Iqbal about this situation, it was 

investigated and determined that unlawful activity did not occur. Again, 

plaintiff does not make a connection to the purported retaliation. See N.J.S.A. 

10:5-12(d). In fact, defendants provided legitimate non-discriminatory reasons 

for each of the alleged retaliatory actions. See Romano, 284 N.J. Super. at 549. 

Plaintiff's three-day suspension was because of her conduct at a meeting, and it 

was upheld by a department head who is also an African American woman. Her 

shift changed back to her original schedule, something that Iqbal foreshadowed 

could occur. Plaintiff's vacation time was denied because she did not follow 

County policy. Plaintiff asserts that she was given extra duties, but could not 

specify which duties. And the one-month suspension was upheld by a hearing 

officer who found ten proven incidents of poor job performance.

Plaintiff alleges that there was a hostile work environment, which "occurs 

when an employer or fellow employees harass an employee because of his or 

her [protected status] to the point at which the working environment becomes 

hostile." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601 (1993). This claim 
16 A-5647-17T2

requires a showing that the harassing conduct "(1) would not have occurred but 

for the employee's [protected status]; and it was (2) severe or pervasive enough 

to make a (3) reasonable [person in the same protected class] believe that (4) the 

conditions of employment are altered and the working environment is hostile or 

abusive." Cutler v. Dorn, 196 N.J. 419, 430 (2008) (quoting Lehmann, 132 N.J. 

at 603-04). Whether the conduct is "severe or pervasive" is based on the totality 

of the circumstances. Taylor v. Metzger, 152 N.J. 490, 506 (1998).

Plaintiff has not established that there was a hostile work environment. 

She has not shown that defendants conduct was so "severe or pervasive" as to 

make a reasonable person in plaintiff's situation believe that "the conditions of 

employment are altered and [that the] working environment is hostile or 

abusive." Cutler, 196 N.J. at 430 (internal quotation marks and citation 

omitted). She cannot prove that the requisite level of hostility was met nor that

defendant would not have acted but for her protected status. Ibid. As such, the 

judge properly granted summary judgment.

III.

Plaintiff also alleges interference with economic advantage, breach of the 

implied covenant of good faith, abuse and misuse of process, and casting her in 

a false light.
17 A-5647-17T2

The tort of interference with a prospective economic advantage requires: 

"(1) a protected interest; (2) malice⸻that is, defendant's intentional interference 

without justification; (3) a reasonable likelihood that the interference caused the 

loss of the prospective gain; and (4) resulting damages." DiMaria Const., Inc. 

v. Interarch, 351 N.J. Super. 558, 567 (App. Div. 2001). In her merits brief, 

plaintiff does not discuss or analyze these elements, or provide facts that bolster 

her claims.

Plaintiff also discusses the "implied covenant of good faith," and that there 

was evidence of a breach because of "theft of public moneys and retaliation 

against the one who reported same[.]" Plaintiff does not highlight any 

provisions in the County employee handbook that defendants have breached, nor 

does she explain if defendants violated any Civil Service laws.

Abuse of process is "the misuse or misapplication of the legal procedure 

in a manner not contemplated by law." Simone v. Golden Nugget Hotel & 

Casino, 844 F.2d 1031, 1036 (3d Cir. 1988). Here, plaintiff was aptly provided 

with all opportunity to be heard and to appeal the suspensions, in accordance 

with Civil Service laws and regulations. 

False light is an invasion of privacy tort that involves "publicity that 

unreasonably places the other in a false light before the public." Romaine v. 
18 A-5647-17T2

Kallinger, 109 N.J. 282, 293 (1988) (internal quotation marks and citations 

omitted). When the false light claim is directed toward a public official, a 

plaintiff has the additional burden of proving actual malice. See DeAngelis v. 

Hill, 180 N.J. 1, 19 (2004). "A public entity is not liable for the acts or omissions 

of a public employee constituting . . . actual malice[.]" N.J.S.A. 59:2-10. "[A] 

public corporation, such as a city or other public body, by reason of its being an 

artificial legal entity created by law to perform limited governmental functions, 

cannot entertain malice, as a public corporation." O'Connor v. Harms, 111 N.J. 

Super. 22, 26 (App. Div. 1970). Plaintiff argued before the judge that defendants 

placed her in a false light by publishing her suspensions to the Civil Service 

Commission, but she does not repeat this allegation in her merits brief. Nor is 

there any explanation proffered as to how this demonstrates actual malice. Thus, 

plaintiff's tort claim lacks sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E).

IV.

N.J.S.A. 10:6-2(c) provides:

Any person who has been deprived of any substantive 

due 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 of those 
19 A-5647-17T2

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, may bring a civil action for damages 

and for injunctive or other appropriate relief.

To establish a violation of the NJCRA, a plaintiff must prove that: (1) "the 

Constitution or laws of this State" conferred a substantive right; (2) the 

defendant deprived the plaintiff of this right; and (3) the defendant was " 'acting 

under color of law'" when it did so. Tumpson v. Farina, 218 N.J. 450, 473 (2014) 

(quoting N.J.S.A. 10:6-2(c)). The NJCRA was modeled after 42 U.S.C. § 1983, 

and federal courts interpret the NJCRA analogously to § 1983. Trafton v. City 

of Woodbury, 799 F.Supp.2d 417, 443 (D.N.J. 2011). "When a suit against a 

municipality is based on § 1983, the municipality can only be liable when the 

alleged constitutional transgression implements or executes a policy, regulation 

or decision officially adopted by the governing body or informally adopted by 

custom." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Policy is 

made via a "decisionmaker possess[ing] final authority to establish a municipal 

policy with respect to the action[.]" McTernan v. City of York, 564 F.3d 636, 

658 (3d Cir. 2009) (first alteration in original) (internal quotation marks and 

citation omitted). Customs are "practices of state officials [that are] permanent[] 

and well-settled" as to constitute law. Ibid. (internal quotation marks and 
20 A-5647-17T2

citation omitted). Further, there must be causation between the municipality's 

actions and the constitutional injury. City of Canton v. Harris, 489 U.S. 378, 

394 (1989). Here, plaintiff cannot highlight a County policy or custom that 

would expose it to liability. She also has not shown that Iqbal was a 

policymaker. This claim is unsubstantiated and not supported by any proffered 

evidence; instead plaintiff makes a conclusory, blanket statement regarding 

disparate treatment. Thus, her NJCRA claim was properly dismissed.

V.

Plaintiff further alleges that defendants violated her constitutional rights. 

Again, plaintiff includes conclusory statements, arguing that defendants 

deprived her of equal protection and engaged in discriminatory behavior that 

prevented her from obtaining gainful employment.

Our Supreme Court "has the power to enforce rights recognized by the 

New Jersey Constitution, even in the absence of implementing legislation." 

Peper, 77 N.J. at 77. In such a circumstance, there are two theories of relief: 

disparate treatment and disparate impact. Id. at 81. Disparate treatment occurs 

when an "employer simply treats some people less favorably than others because 

of their race, color, religion, sex, or national origin. Proof of discriminatory 

motive is critical, although it can in some situations be inferred from the mere 
21 A-5647-17T2

fact of differences in treatment." Ibid. Disparate impact "involves employment 

practices that are facially neutral in their treatment of different groups but that 

in fact fall more harshly on one group than another and cannot be justified by 

business necessity." Id. at 81-82 (internal quotation marks and citation omitted). 

Disparate impact claims do not require proof of a discriminatory motive. Id. at 

82. The plaintiff has to show that "similarly situated" employees⸺that is, "those 

persons possessing equivalent qualifications and working in the same job 

category as plaintiff"⸺were treated differently than the plaintiff. Id. at 84-85. 

The Court stated that it sympathized with the plaintiff, but that "before [it could]

legitimately find her employer's conduct towards her to constitute 

discrimination . . . , a more persuasive showing must be made that the decision 

not to promote her was based upon something other than a bona fide evaluation 

of her qualifications for the position." Id. at 86 (emphasis omitted). 

Here, plaintiff fails to show that the decision to suspend her was based on 

something other than a bona fide evaluation of her job performance and 

disciplinary issues. She accuses defendants of constitutional violations, but does 

not provide proof of other employees who have been treated more favorably on 

the basis of race other than mere speculation and conjecture based upon the 

salaries of other employees, the fact that their work hours were not shifted back 
22 A-5647-17T2

like hers, or that they may have also had issues with their subordinates. None 

of this is indicative of disparate treatment or disparate impact under the law.

VI.

New Jersey's RICO Act is a criminal statute that enables civil relief for 

"[a]ny person damaged in his business or property by reason of a [RICO] 

violation[.]" N.J.S.A. 2C:41-4(c). "Racketeering activity" under the statute 

includes theft offenses, fraudulent practices, and other criminal acts. N.J.S.A. 

2C:41-1(a). To be liable under RICO, an entity must have known of the 

existence and criminal nature of the enterprise. See State v. Ball, 141 N.J. 142, 

186-87 (1995).

"A public entity is not liable for the acts or omissions of a public employee 

constituting a crime, actual fraud, actual malice, or willful misconduct." 

N.J.S.A. 59:2-10. "[T]he existing law and public policy [is] that a public entity 

should not be vicariously liable for such conduct of its employees." Trafton, 

799 F.Supp.2d at 444 (citation omitted).

Here, plaintiff does not cite to a single case or to the statute. Moreover, 

she claims defense counsel is unfamiliar with RICO's requirements and states 

that had counsel "needed more explanation, [they] should have requested same 
23 A-5647-17T2

in discovery." But plaintiff failed to prove the elements of RICO. Therefore, 

summary judgment should not be overturned.

To the extent that we have not addressed any of the parties' remaining 

arguments, we conclude that they lack sufficient merit to warrant discussion in 

a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.