Fik-Rymarkiewicz v. University of Medicine and Dentistry of New Jersey, A-0086-11T3; Appellate Division; opinion by Fasciale, J.A.D.; decided February 7, 2013; approved for publication February 26, 2013. Before Judges Parrillo, Fasciale and Maven. On appeal from the Law Division, Camden County, L-6849-06. DDS No. 25-2-8954A [24 pp.]

Plaintiff Ewa Fik-Rymarkiewicz, Ph.D., a molecular biologist, filed a complaint alleging employment discrimination, hostile work environment, and retaliation in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 against her former employer, defendant University of Medicine and Dentistry of New Jersey, and supervisors Drs. Rameshwar Sharma and Teresa Duda. She asserts that defendants began to harass and discriminate against her after she announced that she was pregnant and continued when she returned from her maternity leave in October 2005.

In January 2006, plaintiff filed an internal discrimination complaint with UMDNJ’s Office of Affirmative Action/EEO, and in September 2006, UMDNJ terminated her. She found new employment five months later. Plaintiff sought compensatory and punitive damages for her emotional distress, and asserted a lost-wage claim, most of which she later dropped.

Defense counsel deposed plaintiff on four separate days between August 2008 and April 2010. At her second and third depositions, she was unwilling to answer questions and provide discovery. For example, after testifying that she applied for a green card as an independent researcher, she repeatedly refused to give defense counsel the name of her immigration attorney. Announcing that she would "answer only questions which are related to the time I was working for Dr. Sharma and UMDNJ," she refused to produce tax returns for 2004 to 2007 and refused to identify any publications that she had authored since updating her CV.

At a conference to resolve plaintiff’s unwillingness to answer questions, the judge orally directed a full exploration of all aspects of the emotional-harm claim and selected March 29, 2010, to complete her deposition. However, plaintiff’s counsel canceled the deposition due to plaintiff’s busy schedule.

Sharma then moved to dismiss the complaint without prejudice pursuant to Rules 4:23-5, 4:23-4 and 1:2-4(a). The judge dismissed the complaint without prejudice pursuant to 4:23-5(a)(1), subject to a rescheduled deposition.

At plaintiff’s fourth deposition, she testified that she had shredded her 2004 through 2007 tax returns, refused to produce her 2008 and 2009 returns, and refused to execute a form permitting defense counsel to obtain copies of her returns from the IRS. She also claimed that Sharma "is the only one" who caused her emotional harm, and that she had no other stress points in her life.

Denying defendants’ motion to dismiss with prejudice, the court ordered that the complaint could be reinstated if plaintiff produced documents regarding her publications, tax returns for 2005-08, and the name of her immigration attorney. Eventually, plaintiff produced 2005-08 federal tax returns but she unilaterally redacted them, claiming the redacted portions pertained to her husband. She also removed certain schedules referenced in the tax records without providing a reason for that alteration.

Defendants’ motion to dismiss with prejudice was granted by a different judge.

On appeal, plaintiff argues that, inter alia, the court abused its discretion when it dismissed the complaint without prejudice and then by requiring her to produce discovery as a condition to reinstatement, and later by dismissing with prejudice.

Held: Because plaintiff demonstrated contumacious behavior, ignored court orders, and obstructed discovery of information directly relevant to her claim of emotional distress, the dismissal of her complaint with prejudice is affirmed.

As to the dismissal without prejudice, the panel observes that a trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances. Because plaintiff failed to respond to defendant’s document demands, the judge did not err by dismissing the complaint without prejudice.

Further, by compelling plaintiff to produce information regarding her publications, tax returns, and the name of her immigration attorney, the judge imposed no more than what the rule mandated: requiring her to produce fully and responsive discovery as a condition to reinstatement. The sanctions were neither unjust nor unreasonable.

As to the dismissal with prejudice pursuant to 4:23-5(a)(2), the panel says the record shows that plaintiff did not produce fully responsive discovery, despite being warned repeatedly that failure would result in the dismissal of her case. It says the tax records are relevant to the remaining wage claim and to the claim of emotional distress since plaintiff claims that Sharma alone caused her emotional distress and marital problems. Defendant sought the tax returns to determine whether money issues contributed to her emotional-distress claim. Also, although she testified that her husband was not working, if her tax returns showed otherwise, this inconsistency would be relevant to impeach her credibility. She thus failed to produce fully responsive discovery.

The panel concludes that plaintiff’s refusal to comply with the discovery demands was deliberate and contumacious and that, under the totality of the circumstances, the sanctions imposed were not unjust or unreasonable.

The panel also rejects plaintiff’s contention that the judge committed plain error by refusing to honor her Fifth Amendment right "and possibly her husband’s" against self-incrimination.

It says her self-incrimination argument, raised on reconsideration and on appeal, contradicts her claim that the redactions pertained to her husband. Moreover, she did not assert her Fifth Amendment right during her depositions. Rather, she ignored the opportunity to seek a protective order or to address any potential privilege issue, even though she had been invited repeatedly to do so.

For appellant — George R. Szymanski. For respondents: UMDNJ — Noreen P. Kemether, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Lewis A. Scheindlin, Assistant Attorney General, of counsel); Rameshwar Sharma — William P. Flahive; Teresa Duda — Michael A. Armstrong and Associates.