Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2000-24 JEANNETTE ANDREULA, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF THE TOWNSHIP OF NUTLEY, RUSSELL LAZOVICK, and LORRAINE RESTEL, Defendants-Respondents. _____________________________ Argued October 8, 2026 – Decided October 22, 2026 Before Judges Mawla, DeAlmeida and Chase. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4254-16. Anthony M. Rainone argued the cause for appellant (Brach Eichler LLC, attorneys; Anthony M. Rainone, of counsel and on the brief; Eric Magnelli and Katelyn A. Marquez, on the briefs). Richard A. Grodeck and Kristen Jones argued the cause for respondents (Piro Zinna Cifelli Paris & Genitempo LLC, attorneys; Richard A. Grodeck, of counsel; Kristen Jones, on the brief). PER CURIAM Plaintiff Jeannette Andreula appeals from orders dated April 5, 2019 (two), October 15, 2019, November 16, 2021, March 9, 2022, May 14, 2024, October 25, 2024, October 31, 2024 (two), January 17, 2025, and February 3, 2025 (two). Collectively, these orders led to the dismissal of her New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, claim against defendants Board of Education of the Township of Nutley, school district superintendent Russell Lazovick, and elementary school principal Lorraine Restel. We affirm. By way of background, plaintiff was a thirty-year veteran of the Nutley School District. She taught early elementary education in the second and third grades and was certified to teach kindergarten through sixth grade. Lazovick served as the district superintendent from September 2011 until June 2016. Beginning in September 2006, Restel served as the principal of one of the district's five elementary schools. Plaintiff began teaching the third grade in Restel's school in May 2012. This was the second district elementary school plaintiff was assigned to during her tenure. According to the teachers' union vice president, plaintiff was a source of tension in the first district school she A-2000-24 2 transferred from and made "the climate of the school . . . uncomfortable." Lazovick told plaintiff she was being transferred due to the district's needs. Plaintiff did not want to transfer but ultimately acquiesced. On May 16, 2016, Lazovick and Restel went to plaintiff's classroom to inform her she was being transferred to a third school to teach the fifth grade for the 2016-17 school year. When plaintiff asked why, Lazovick told her it would be a better fit for her. The district's union and affirmative action officer stated he had never seen a teacher with plaintiff's years of service be transferred to a grade she never taught. Plaintiff claimed her transfer was due to the fact she encouraged a colleague, a disabled teacher, to bring a discrimination complaint against Restel. When the investigators learned from the colleague that plaintiff had spoken with her about her issues with Restel, they interviewed plaintiff as well. Plaintiff attested to her colleague's teaching capability and relayed that her colleague said Restel was "mean and unkind" to the colleague. The investigation of the colleague's claim against Restel led to the interview of ten other teachers, and concluded there was conflict among the teachers at the school. In March 2016, the affirmative action officer rendered three reports ; two of which concluded there were high tensions between the colleague and Restel A-2000-24 3 but did not mention plaintiff. However, the third report blamed plaintiff and another teacher for having "a negative impact [on] the staff and building moral[e]." The report concluded there was an "enormous amount of negative comments regarding" both employees. Plaintiff and the other teacher were feuding because plaintiff was monitoring the other teacher and recording when she was tardy. The report concluded "regardless of who is at fault, [the school's climate] has deteriorated and should be addressed by administration for the betterment of the staff and students." According to defendants, plaintiff's transfer was for "educational reasons and in the interest of . . . harmony at the school," citing the "ill will" among staff members at the school. At his deposition, Lazovick explained plaintiff was transferred because "she was part of creating a toxic atmosphere" at the school. The day after being notified about her transfer to the third school, plaintiff sought disability accommodation. She claimed the school's lack of air conditioning would aggravate her asthma and eczema. Plaintiff provided a letter from her doctor stating "it would be best for [plaintiff] to continue her position at [the second school] at this time." The district's attorney replied, the district superintendent–no longer Lazovick–would place plaintiff in an air-conditioned classroom in the third school. A-2000-24 4 Plaintiff sued defendants, asserting claims for: retaliation under the LAD; violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; failure to accommodate a disability and failure to engage in the interactive process; and individual liability of Lazovick and Re stel under the LAD and CEPA. As a part of her suit, plaintiff also requested an injunction against the transfer, alleging she had never taught the fifth grade and was transferred for purely retaliatory reasons, in violation of the LAD. The court granted a preliminary injunction barring the District from transferring plaintiff. The injunction remained in place through the conclusion of the case and plaintiff's retirement in 2024. Between 2018 and 2024, the parties filed dueling motions seeking: in defendants' case, dismissal of the various counts of the complaint; and in plaintiff's case, judgment in her favor and to be declared the prevailing party under the LAD. The court ultimately dismissed all of plaintiff's claims on summary judgment culminating in the entry of the court's final orders on February 3, 2025. I. On appeal, plaintiff challenges the court's denial of her motion to declare her the prevailing party under the LAD. She points to Warrington v. Village A-2000-24 5 Supermarket, Inc., 328 N.J. Super. 410, 421 (App. Div. 2000), which held "a prevailing party need only be nominally successful." Plaintiff also cites Empower Our Neighborhoods v. Guadagno, 453 N.J. Super. 565 (App. Div. 2018), which she claims supports her contention. Our review of this issue is de novo. Porreca v. City of Millville, 419 N.J. Super. 212, 224 (App. Div. 2011). A prevailing party can be awarded "a reasonable attorney's fee as part of the cost" of their action under the LAD. N.J.S.A. 10:5-27.1. A plaintiff who "succeed[s] on any significant issue in litigation which achieves some benefit the parties sought in bringing suit" is considered a prevailing party. Hansen v. Rite Aid Corp., 253 N.J. 191, 213 (2023) (alteration in original) (quoting Occhifinto v. Olivo Constr. Co., 221 N.J. 443, 450-51 (2015)). "Accordingly, 'a plaintiff who is awarded some affirmative relief by way of an enforceable judgment against defendant or other comparable relief through a settlement or consent decree is a prevailing party under N.J.S.A. 10:5-27.1 of the LAD.'" Ibid. (quoting Tarr v. Ciasulli, 181 N.J. 70, 86-87 (2004)). A plaintiff can also be considered a prevailing party under the catalyst theory, which "focus[es] on the outcome achieved rather than the formality of a court order or settlement." Mason v. City of Hoboken, 196 N.J. 51, 62 (2008). A prevailing party under the catalyst theory is one who can show a "factual A-2000-24 6 causal nexus between plaintiff's litigation and the relief ultimately achieved;" and that the relief the plaintiff secures has a basis in the law. Id. at 73 (quoting Singer v. State, 95 N.J. 487, 494-95 (1984)). On July 29, 2016, the court granted plaintiff a preliminary injunction enjoining defendants from transferring plaintiff from her third -grade teaching position at the second school to the fifth-grade teaching position at the third school. Plaintiff's reasons for seeking the injunction were she: would incur thousands of dollars in expenses for teaching supplies and equipment to teach the fifth grade; did not have the professional training to teach the fifth grade; and was unfamiliar with the New Jersey Core Curriculum for fifth grade, having never taught that grade level. She also alleged there were potential third-grade students whose parents had requested she teach their children because they required special attention. The court was unpersuaded by plaintiff's claims of economic harm or harm to the students. However, it found "some merit in [p]laintiff's contention that the extreme personal inconvenience she will undergo in learning the fifth grade curriculum at [the third school], along with preparing for the upcoming school year in that new position, constitutes irreparable harm." Although it was not "particularly compelling," the court reasoned "[p]laintiff ha[d] nonetheless A-2000-24 7 made a showing of irreparable harm" and established a reasonable likelihood of success on the merits of her retaliation claim. A reasonable jury could conclude plaintiff's transfer after engaging in an affirmative action investigation "would dissuade a reasonable [worker] from [filing] a charge of discrimination," and thus "could constitute an adverse employment action under the LAD." However, the court noted plaintiff would still need to show a causal nexus between her transfer and her participation in the affirmative action investigation. Nonetheless, the court preliminarily enjoined defendants from transferring plaintiff during the pendency of the suit and ordered defendants maintain the status quo and keep plaintiff in her third-grade teaching position at the second school. On October 31, 2024, the court denied plaintiff's motion to declare her the prevailing party under the LAD because all of plaintiff's LAD claims had been dismissed with prejudice. Although the injunctive relief had been in place for eight years blocking the transfer defendants ordered, it was ultimately a preliminary injunction and not a final decision on the merits. Citing Singer Management Consultants v. Milgram, 650 F.3d 223 (3d Cir. 2011), the court noted even though in granting the preliminary injunction it had found a likelihood of success on the merits, this did not resolve the issue on the merits. A-2000-24 8 The preliminary injunction "was not a final order on the merits." Moreover, the court observed plaintiff "took voluntary action that mooted the relief she seeks " by retiring during the litigation, which had been delayed due to the COVID-19 pandemic, a delay no one anticipated. Having considered the record, we conclude the court did not err in concluding plaintiff was not the prevailing party. Plaintiff's reliance on Warrington is unpersuasive because she was not even nominally successful on her claims, as there was no final judgment or award entered in her favor. In Empower Our Neighborhoods, the court granted a preliminary injunction, which declared portions of a contested residency statute unconstitutional and stated they could not be applied to the plaintiff. 453 N.J. Super. at 585. The court rejected the plaintiff's challenges to in-state residency requirements and other voter-eligibility rules. Ibid. Although the plaintiff did not win all of its claims, the preliminary injunction struck down parts of the statute, which constituted a final ruling on the merits. Ibid. The plaintiff was declared the prevailing party because the preliminary injunction ruling "expanded the petition rights of 5.88 million registered voters in New Jersey." Ibid. Here, plaintiff did not establish a connection between her transfer and her participation in the affirmative action investigation. She was not the prevailing A-2000-24 9 party because she did not prevail on a significant issue. A preliminary injunction serves as a temporary measure to maintain the status quo based on the likelihood of success on the merits. See Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982). The fact that the proverbial litigation clock ran out did not convert the preliminary injunction into a final injunction because the court never made a final ruling on the preliminary injunction by applying the facts to the Crowe factors. Ibid. II. We review the grant of summary judgment de novo, applying the same standard as the trial court. Avis Budget Grp., Inc. v. City of Newark, 427 N.J. Super. 326, 337 (App. Div. 2012). "Summary judgment is proper if, viewing the evidence in the light most favorable to the non-moving party, no genuine issue of material fact is disputed." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). A. Plaintiff argues her transfer from school-to-school was an adverse employment action and evidence of retaliation. This was especially the case because she was transferred and then ordered to teach a grade she had never taught during her thirty-year tenure. A-2000-24 10 Retaliation is unlawful under the LAD. N.J.S.A. 10:5-12(d). A plaintiff alleging retaliation must show "(1) [they were] in a protected class; (2) . . . engaged in protected activity known to the employer; (3) . . . thereafter subjected to an adverse employment consequence; and (4) . . . a causal link between the protected activity and the adverse employment consequence." Victor v. State (Victor II), 203 N.J. 383, 409 (2010). "Once a plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a 'legitimate[,] non -retaliatory reason' for that decision." Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J. Super. 366, 376 (App. Div. 2014) (alteration in original) (quoting Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990)). "If [a] defendant satisfies this burden, the plaintiff must then demonstrate that a retaliatory intent, not the employer's stated reason, motivated the employer's action, proving the employer's articulated reason was merely a pretext for discrimination." Id. at 376-77. "[A] person engages in a protected activity under the LAD when that person opposes any practice rendered unlawful under the LAD." Id. at 377 (alteration in original) (quoting Young v. Hobart W. Grp., 385 N.J. Super. 448, 466 (App. Div. 2005)). A protected activity, "if involving a complaint, must A-2000-24 11 concern discrimination." Ibid. "'A general complaint of unfair treatment' does not suffice." Ibid. (quoting Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995)). Summary judgment in favor of defendants on plaintiff's retaliation claim was properly granted. Although in some circumstances the transfer of an employee may constitute an adverse employment action, here it did not because plaintiff failed to show a causal nexus between her transfer and her protected activity. Defendants objectively proved plaintiff's transfer was made for legitimate school business purposes due to an increase in hostility among staff members. Indeed, four other teachers were interviewed and transferred along with plaintiff because of the workplace conflict at the second school. Plaintiff was not singled out for her participation in the affirmative action case. She was not treated differently because other teachers, including the target of the affirmative action complaint, were transferred as well. Plaintiff was transferred to a school and grade within her qualifications. There was no evidence plaintiff was guaranteed to teach in the same school and grade level as she had been teaching during her tenure. Plaintiff's perception that her assignment was unfair, or conflicted with her personal preferences, does not constitute an adverse employment action. See Dunkley, 437 N.J. Super. at A-2000-24 12 377 (citing Barber, 68 F.3d at 702). Plaintiff's transfer did not result in a change of pay, title, or benefits. B. Plaintiff argues the court erred when it dismissed her failure to accommodate claim under the LAD because she had not established her disability. She claims there was ample evidence of her disability, and estoppel and waiver barred defendants from arguing differently. Plaintiff points to her doctor's note and the fact defendants must have perceived she had a disability because they unilaterally chose to accommodate her by transferring her to an air-conditioned classroom. Although "[t]he LAD does not specifically address reasonable accommodation, . . . our courts have uniformly held that the law nevertheless requires an employer to reasonably accommodate an employee's handicap." Tynan v. Vicinage 13 of Superior Ct., 351 N.J. Super. 385, 396 (App. Div. 2002). Employers must make "'reasonable accommodation[s] to the limitations' of a disabled employee, 'unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.'" Id. at 397 (quoting N.J.A.C. 13:13-2.5(b)). To determine what appropriate accommodation is necessary, the employer must initiate an informal A-2000-24 13 interactive process with the employee. . . . This process must identify the potential reasonable accommodations that could be adopted to overcome the employee's precise limitations resulting from the disability. . . . Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation. [Id. at 400.] In a failure to accommodate case, the plaintiff first must present the prima facie elements required in any LAD disability discrimination. A plaintiff must show they were disabled within the meaning of the statute and qualified to perform the essential functions of the position of employment, and that they suffered an adverse consequence. Victor v. State (Victor I), 401 N.J. Super. 596, 614 (App. Div. 2008), aff'd as modified, 203 N.J. 383 (2010). In determining "whether a plaintiff has satisfactorily presented proofs to succeed on a failure-to-accommodate claim, many cases discuss whether a plaintiff has satisfactorily proven a qualifying disability under the LAD." Id. at 611. The LAD defines a disability as "physical or sensory disability[ or] infirmity . . . which is caused by bodily injury . . . or illness . . . which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques." N.J.S.A. 10:5-5(q). Where the alleged disability is not A-2000-24 14 immediately apparent, expert medical evidence is required. Victor II, 203 N.J. at 423. Pursuant to these principles, we discern no error in the court's grant of summary judgment dismissal of plaintiff's accommodation claim. Simply put, plaintiff failed to establish a disability. The doctor's note provided by plaintiff was not enough because it did not identify plaintiff's alleged disability or the limitations she had. Plaintiff failed to demonstrate a prima facie accommodation claim and summary judgment was properly granted on this record. For these reasons, she cannot rely upon estoppel and waiver to salvage the accommodation claim. C. Plaintiff argues the court should have granted her summary judgment on the failure to engage in the interactive process claim and misinterpreted the law when it concluded there was no separate cause of action for such a claim under the LAD. She asserts she did not have to first prove a disability or adverse employment consequence because it would defeat the purpose of encouraging good faith participation by employers in engaging in the interactive process for disability accommodation requests. Since defendants failed to engage in the interactive process, it was incumbent on them to obtain further proof of A-2000-24 15 plaintiff's disability if they doubted its existence or the specifics of an accommodation. Therefore, estoppel and waiver applied here as well because defendants perceived or believed she was disabled by not seeking further evidence and unilaterally accommodated her. "Disability discrimination under the LAD encompasses an employer's failure to comply with the duty to provide reasonable accommodation of [a] disability." Richter v. Oakland Bd. of Educ., 246 N.J. 507, 543 (2021) (citing N.J.A.C. 13:13-2.5(b)). "That duty includes the obligation to engage in an interactive effort to attempt to reach a reasonable accommodation." Ibid. The interactive process is an informal process by which an employer determines an appropriate or "reasonable accommodation" for a disabled employee. See Tynan, 351 N.J. Super. at 400 (citing 29 C.F.R. § 1630.2(o)(3)). "This process must identify the potential reasonable accommodations that could be adopted to overcome the employee's precise limitations resulting from the disability." Ibid. The trial court did not commit reversible error. Again, there was no objective evidence of plaintiff's disability in the record. Regardless, the court properly dismissed this claim when it found since plaintiff filed her complaint before either party could engage in the interactive process and further discuss A-2000-24 16 appropriate accommodation, she terminated the need to engage in the interactive process. The court also correctly found the failure to engage in the interactive process was not a separate LAD cause of action. The duty to engage in the interactive process only arises when an employee can establish a qualifying disability under the LAD. The failure to engage in the interactive process is part and parcel of the failure to accommodate claim under the LAD. See Richter, 246 N.J. at 543 (citing N.J.A.C. 13:13-2.5(b)). Our courts have turned to the federal guidelines, which require that, to determine reasonable accommodation, the employer must engage in an "interactive process." See Tynan, 351 N.J. Super. at 400. While our courts have defined the criteria for proving an employer failed to engage in the interactive process, they do so within the context of the failure to accommodate claim. E.g., Richter, 246 N.J. 507. D. Finally, plaintiff challenges the dismissal of the aiding and abetting claims against Lazovick and Restel. N.J.S.A. 10:5-12(e) prohibits "any person, whether an employer or an employee or not, to aid, abet, incite, compel[,] or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." Aiding and abetting liability requires a plaintiff to show "active and A-2000-24 17 purposeful conduct." Tarr, 181 N.J. at 83. Specifically: "(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of [their] role as part of an overall illegal or tortious activity at the time that [they] provide[] the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation." Id. at 84 (fourth alteration in original) (quoting Hurley v. Atl. City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999)). Because plaintiff failed to establish a prima facie case of retaliation or failure to accommodate, it follows Lazovick and Restel could not be personally liable because there was no wrongful act(s) undertaken by the district in which they actively or purposely participated. Affirmed. A-2000-24 18