Opinion
DOCKET NO. A-4432-11T4
03-20-2013
ILDA AGUAS, Plaintiff-Appellant, v. STATE OF NEW JERSEY, Defendant-Respondent.
Paul Castronovo argued the cause for appellant (Castronovo & McKinney, LLC, attorneys; Mr. Castronovo, of counsel; Megan Frese Porio, on the brief). Gail R. Beran, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Beran, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-160-10.
Paul Castronovo argued the cause for appellant (Castronovo & McKinney, LLC, attorneys; Mr. Castronovo, of counsel; Megan Frese Porio, on the brief).
Gail R. Beran, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Beran, on the brief). PER CURIAM
Plaintiff, Ilda Aguas, appeals from the summary judgment dismissal of her complaint against defendant State of New Jersey, alleging violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, due to sexual harassment/hostile work environment created by her supervisors. We affirm.
Plaintiff is a Senior Corrections Officer (SCO) at the Edna Mahan Correctional Facility for Women, where she has been employed by the Department of Corrections (DOC) since March 3, 2004. According to plaintiff, the sexual harassment commenced sometime in October 2009 when Darryl McClish, an area lieutenant employed by the DOC since 1989, had transferred to the third shift (10:00 p.m. to 6:00 p.m.) at Edna Mahan, where he supervised sixty employees, including plaintiff. Almost immediately, plaintiff suffered sexual advances from McClish. In particular, her LAD complaint alleges that McClish: (1) followed plaintiff to the parking lot, got close to her face, and asked "Are we going to a telly [(i.e., a motel)]?" to which plaintiff responded to leave her alone, causing McClish to respond, "You know Lieutenant Walz [who is rumored to be a former sexual partner of plaintiff's] ain't shit"; (2) called plaintiff on her cell phone following the prior incident to demand that she return handcuffs that she had taken with her; (3) sniffed the handcuffs upon plaintiff's return of such and stated, "Where you been? If you want to borrow them, just let me know"; (4) sat on plaintiff's lap facing her, blew his whistle, and grinded his pelvis into her (which, according to plaintiff, was observed by Lieutenant Roderick Secor and Sergeant John Cruise); (5) massaged plaintiff's shoulders; (6) stuck out his buttocks toward plaintiff, flexed his arms, and said, "Do me a favor and take my radio off [my hip]"; (7) grabbed plaintiff from behind, held her hands behind her back, bent her over a table, and placed his pelvis on her buttocks; (8) simulated boxing techniques with plaintiff, causing physical contact; (9) danced around plaintiff while blowing his whistle as if plaintiff was a stripper; and (10) responded to plaintiff's objections to his conduct with the statement: "You gonna tell Walzie boy? Don't you know Walz is fucking little boys in Indonesia?"
A few days after this last incident, sometime in November 2009, plaintiff confronted McClish alone. She told him that his actions made her feel uncomfortable and "like a whore, like a slut." Although he responded that he was not sorry, his offensive actions toward plaintiff immediately ceased. According to plaintiff, "Lieutenant McClish no longer disrespected me . . . no longer said anything to me, didn't bother me whatsoever after that."
Prior to the last confrontation, plaintiff had not reported her experience with McClish to the DOC's Equal Employment Division (EED). She did, however, repeatedly tell Lieutenant Walz about McClish's sexual harassment in October 2009, but Walz never reported it to his superior officers.
The only other incidents of sexual harassment before plaintiff formally complained to the EED allegedly occurred on January 23, 2010, and involved another DOC employee, Robin Hill, a male Sergeant also assigned to the third shift at Edna Mahan. At that time, plaintiff passed through a metal detector at the prison, causing the alarm to sound. According to plaintiff, Hill asked plaintiff if she had "piercings in your breasts because I know you don't need an underwire bra." Hill then ordered a female officer to repeatedly pat-frisk plaintiff. Apparently, pursuant to DOC policy, officers entering Edna Mahan must clear the metal detector to prevent the influx of contraband and protect the safety and security of the employees and inmates. If an officer does not clear the detector after four attempts, center control is notified and the officer is pat-frisked by another officer of the same sex. According to Hill, plaintiff went through the metal detector three or four times without clearing it, so he ordered another female officer to pat-frisk plaintiff.
Although not the subject of this appeal, count two of plaintiff's two-count complaint alleged retaliation under the LAD by Sergeant Eric Sands, who was also assigned to the third shift at Edna Mahan since March 2008. According to plaintiff, Sands: (1) defended McClish by stating, "I've known McClish twelve years. McClish will fuck up that white boy Walz. You can tell your punk ass boy [Walz]"; (2) reprimanded plaintiff for not sewing her badge and name tag on her jacket; (3) reprimanded plaintiff for smoking outside on her break with a sweater around her arms; (4) reprimanded plaintiff for not having the required red pen for paperwork; and (5) forced plaintiff to repeatedly walk through the metal detector after the alarm sounded.
Two days after this incident, on January 25, 2010, plaintiff reported McClish's and Hall's conduct to her co-worker and union representative Randy Anema, and then to Captain and Acting Chief Robert Ryan, the highest officer in command. Ryan advised her to meet with Assistant Administrator Helen Adams, the EED liaison. Plaintiff met with Adams that same day and reported all the instances of sexual harassment and retaliation. Adams advised plaintiff to write a written report, but plaintiff declined because she feared retaliation. Adams told plaintiff the only other option would be to have a group meeting with McClish, Sands, and Hill. Plaintiff refused that alternative as well. Nevertheless, Adams gave plaintiff the forms to complete a written report and referred plaintiff to the inmate psychologist. Two days later, on January 27, 2010, plaintiff went out on medical leave for approximately one year, returning to Edna Mahan after receiving clearance to work as of December 7, 2011.
On January 29, 2010, Adams emailed the EED describing her meeting with plaintiff. Thereafter, on March 3, 2010, after receiving a letter from plaintiff's attorney, Prison Administrator William Hauck emailed the EED that plaintiff may have been out of work due to hostile work environment. Consequently, the EED commenced an investigation and on March 8, 2010, EED investigator Renee Earlie-Colay sent a letter to plaintiff asking her to contact the EED. Plaintiff was finally allowed to speak with the investigator and at her counsel's request, Earlie-Colay interviewed plaintiff at her counsel's office in his presence on March 26, 2010.
On February 4, 2010, Officer John Arrington sent plaintiff two text messages warning her of retaliation if she filed a written report.
The EED's investigation was conducted over the next several weeks and its findings were summarized in a report dated April 21, 2010. Among other things, the EED report contained witness interview summaries, and written witness statements as a result of interviews of twenty individuals, including plaintiff, McClish, and Walz. The report concluded that a violation of the State's Policy Prohibiting Discrimination in the Workplace had not been substantiated. Plaintiff was advised of this finding by letter of June 7, 2010, which also informed her of her right to appeal within twenty days. Plaintiff never filed an administrative appeal.
This Policy applies to all DOC employees. The Policy bans sexual harassment of any kind, including hostile work environment harassment and lists several examples of prohibited behavior, such as unwanted physical contact and sexually suggestive comments. The Policy details the procedures available to employees and supervisors when there are allegations of discrimination and/or harassment. The DOC disseminates the Policy to all its employees and offers yearly training regarding the Policy. Plaintiff admits receiving a copy of the Policy. Although she said she never received training on the Policy, in the past, plaintiff filed two workplace complaints, one on May 13, 2005, with the EED alleging discrimination, harassment, and hostile work environment, and another on May 25, 2007, alleging workplace violence. Both claims were investigated and found to be unsubstantiated.
In the meantime though, plaintiff filed her two-count complaint against the State on March 10, 2010, alleging a hostile work environment due to her sex (Count I) and retaliation for objecting to sexual harassment (Count II) in violation of the LAD. Plaintiff sought compensatory damages, punitive damages, attorneys' fees, and costs. Following defendant's answer and affirmative defenses and completion of discovery, defendant moved for summary judgment. The motion judge granted this relief, finding that although plaintiff established a prima facie showing of sexual harassment, employer liability was inappropriate because defendant instituted a proper anti-discrimination policy and engaged in a thorough investigation of the claims. The motion court also found defendant was not liable under any authority delegated to a supervisor. Moreover, the court found that plaintiff also failed to state a prima facie case of retaliation. The court denied punitive damages because the evidence did not meet the required threshold for punitive damages and there was no violation of law to form the basis of an award of punitive damages.
On appeal, plaintiff raises the following issues:
I. THE MOTION JUDGE IGNORED THE FACTUAL RECORD IN CONCLUDING THAT PLAINTIFF'S REPORTS OF SEXUAL HARASSMENT TO HER SUPERVISOR, LIEUTENANT WALZ, WERE NOT IN WALZ'S CAPACITY AS PLAINTIFF'S SUPERVISOR.We find no merit to these contentions.
II. THE MOTION JUDGE RESOLVED DISPUTED ISSUES OF FACT IN CONCLUDING THAT AREA LIEUTENANT MCCLISH DID NOT USE HIS SUPERVISORY POWER TO SEXUALLY HARASS PLAINTIFF.
III. THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES BECAUSE SHE WAS HARASSED BY HER BOSS AND DEFENDANT FAILED TO ACT AFTER PLAINTIFF REPEATEDLY REPORTED THE HARASSMENT TO HER BOSS.
I
The Legislature enacted the LAD to protect the civil rights of aggrieved employees and the public's interest in a discrimination-free work place. Fuchilla v. Layman, 109 N.J. 319, 334-35, cert. denied sub nom. Univ. of Med. & Dentistry of N.J. v. Fuchilla, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). The LAD specifically prohibits employment discrimination based on sex:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, . . . affectional or sexual orientation, . . . 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 individual in compensation or in terms, conditions or privileges of employment . . . .
[N.J.S.A. 10:5-12.]
Sexual harassment is a form of sex discrimination that violates the LAD and involves two categories: quid pro quo sexual harassment and hostile work environment sexual harassment. Lehman v. Toys 'R' Us, Inc., 132 N.J. 587, 601 (1993). "Quid pro quo sexual harassment occurs when an employer attempts to make an employee's submission to sexual demands a condition of his or her employment." Ibid. "Hostile work environment sexual harassment, by contrast, occurs when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile." Ibid.
A plaintiff must first demonstrate a prima facie showing of harassment to survive a motion for summary judgment. The seminal case that developed the standards for hostile work environment sexual harassment claims is Lehman, supra. There, the Court stated:
To state a claim for hostile work environment sexual harassment, a female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. For the purposes of establishing and examining a cause of action, the test can be broken down into four prongs: the complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.
[132 N.J. at 603-04.]
In the present case, the motion judge found a prima facie showing of sexual harassment and defendant does not challenge this ruling:
Here, plaintiff satisfies the above elements [of Lehmann] inasmuch as she creates a genuine issue of material fact as to the viability of her hostile work environment sexual harassment claim. Although defendant makes great effort to undermine plaintiff's credibility, her credibility is not at issue here. That is a determination to be made by the jury, not the [c]ourt. On present record, plaintiff has presented sufficient evidence, in the form of her deposition testimony, to indicate that, as a direct result of her status as a woman, she suffered repeated sexual advances at the hands of McClish, her male supervisor. Although, as defendant asserts, plaintiff's testimony is not corroborated (and is, in fact, contradicted) by the testimony of McClish and other witnesses, this contrasting evidence, at the very least, creates a genuine issue of material fact as to whether or not this conduct occurred. The repetitiveness of the alleged inappropriate conduct, coupled with the severity of the table incident (for one), satisfies the severity/pervasiveness prong in such a way as to survive a motion for summary judgment. Moreover, a jury could find that the aforementioned conduct would create a hostile or abusive work environment for a female employee. Thus, plaintiff has presented sufficient facts pertaining to her prima facie case of hostile work environment sexual harassment in order to create a genuine issue of material fact for the purposes of this summary judgment motion.
[(citations omitted).]
II
The Court in Lehman also discussed the parameters of employer liability for hostile work environment claims. "[W]e reaffirm that in cases of supervisory sexual harassment, whether the harassment is of the quid pro quo or the hostile work environment type, the employer is directly and strictly liable for all equitable damages and relief." Id. at 617. Equitable damages include hiring or reinstating the victim, disciplining or firing the harasser, and taking other remedial measures. Ibid. In contrast, the Court found that different considerations apply to employer liability for compensatory and punitive damages. Ibid.
On this score, employer liability for compensatory damages in supervisory hostile work environment sexual harassment claims is governed by agency principles. Id. at 619. Specifically, the Restatement (Second) of Agency, § 219 (1958) states:
(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.
(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon
apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.[Ibid.]
The Court continued, "[a]pplying those principles, we declare that under [section] 219(1) an employer whose supervisory employee is acting within the scope of his or her employment will be liable for the supervisor's conduct in creating a hostile work environment." Ibid. If, however, a supervisor were to act outside the scope of his or her employment, the employer may only be liable under one of the exceptions identified in section 219(2). Id. at 619-20. The Court summarized:
A supervisor who sexually harasses an employee acts outside the scope of employment. Entrot v. BASF Corp., 359 N.J. Super. 162, 173 (App. Div. 2003).
Under agency law, an employer's liability for a supervisor's sexual harassment will depend on the facts of the case. An employer will be found vicariously liable if the supervisor acted within the scope of his or her employment. Moreover, even if the supervisor acted outside the scope of his or her employment, the employer will be vicariously liable if the employer contributed to the harm through its negligence, intent, or apparent authorization of the harassing conduct, or if the supervisor was aided in the commission of the harassment by the agency relationship. Thus, an employer can be held liable for compensatory damages stemming
from a supervisor's creation of a hostile work environment if the employer grants the supervisor the authority to control the working environment and the supervisor abuses that authority to create a hostile work environment. An employer may also be held vicariously liable for compensatory damages for supervisory sexual harassment that occurs outside the scope of the supervisor's authority, if the employer had actual or constructive notice of the harassment, or even if the employer did not have actual or constructive notice, if the employer negligently or recklessly failed to have an explicit policy that bans sexual harassment and that provides an effective procedure for the prompt investigation and remediation of such claims.
[Id. at 624.]
III
With these principles in mind, plaintiff argues that the court erred in finding defendant not vicariously liable because genuine issues of fact existed as to whether defendant negligently administered its anti-sexual harassment policy. We disagree.
Regarding the negligence basis in section 219(2)(b), the Lehman Court stated:
In light of the known prevalence of sexual harassment, a plaintiff may show that an employer was negligent by its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms. We do not hold that the absence of such mechanisms automatically constitutes negligence, nor
that the presence of such mechanisms demonstrates the absence of negligence. However, the existence of effective preventative mechanisms provides some evidence of due care on the part of the employer.
[Id. at 621.]
Somewhat akin is the Ellerth/Faragher affirmative defense articulated by the United States Supreme Court. Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). Those cases involved the issue of an employer's vicarious liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e to § 2000e-17. The U.S. Supreme Court in Ellerth stated:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence . . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise . . . . No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible
employment action, such as discharge, demotion, or undesirable reassignment.
[Ellerth, supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. Ed. 2d at 655.]
Although not formally adopted in New Jersey as an affirmative defense to LAD violation claims, the Ellerth/Faragher test does not differ substantially from the principles developed in Lehman and later in Gaines v. Bellino, 173 N.J. 301 (2002), wherein the Court stated, "A defendant is entitled to assert the existence of an effective anti-sexual harassment workplace policy as an affirmative defense to vicarious liability . . . ." Id. at 320.
"We have noted previously that in resolving disputes under our State employment-law jurisprudence, federal case law is merely a guide." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 20 (2002).
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In Gaines, however, the Court found material issues of disputed fact in the motion record that prevented summary dismissal based on that affirmative defense. Ibid. There, the plaintiff, a corrections officer, was subjected to unwanted kissing by her supervisor. Id. at 304. The plaintiff separately told several corrections officers about the incident and they advised her to file a complaint. Id. at 305. The plaintiff refused to file a complaint because she believed no one would believe her and she feared for her safety. Ibid. Years later, in front of the plaintiff, the supervisor raised the kissing incident to several high-ranking officers. Id. at 306. The warden became aware of the incident but did not contact the plaintiff until a year after, when he advised the plaintiff to file a written complaint, which the plaintiff again refused. Id. at 307-08. Disciplinary charges were filed against the supervisor and he received a thirty-day suspension. Id. at 308-09. The motion record demonstrated that there was an anti-sexual harassment policy but that numerous employees had not received training and the policy was loosely enforced. Id. at 309-10.
The plaintiff filed suit against her supervisor, and the County of Hudson and its correctional facility for LAD violations arising from hostile work environment sexual harassment. Id. at 304. The County filed a motion for summary judgment arguing it was not vicariously liable because it took sufficient preventive steps. Id. at 310. The trial court granted the motion, which we affirmed, finding that the County had a policy, publicized it through posters, promulgated it to employees, conducted training, and acted when facts were brought to its attention. Id. at 311. The Supreme Court reversed, finding that although an employer is entitled to assert the existence of an effective anti-sexual harassment workplace policy as an affirmative defense to vicarious liability, id. at 320, nevertheless there were "genuine factual issues concerning whether this employer had implemented an anti-sexual harassment workplace policy that provided realistic preventative and protective measures for employees in the event that harassment occurred, [and therefore] summary judgment should not have been granted[,]" id. at 303.
In so ruling, the Court identified several factors relevant to determining whether an employer has acted negligently in failing to establish an anti-harassment policy, including:
(1) formal policies prohibiting harassment in the workplace; (2) complaint structures for employees' use, both formal and informal in nature; (3) anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization; (4) the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and (5) an unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.On this score, the Court distinguished between an "anti-harassment policy [that provides] effective and practical anti-harassment [prevention] and protection mechanisms" and "an anti-harassment policy that existed in name only." Id. at 318.
[Id. at 313.]
In Velez v. City of Jersey City, 358 N.J. Super. 224, 227 (App. Div. 2003), aff'd on other grounds, 180 N.J. 284 (2004), the plaintiff, a former City employee, alleged a councilman sexually assaulted her. According to the plaintiff, she reported the incident to numerous management employees, union officials and co-workers, but the City did not investigate or respond to the allegations. Id. at 229. The plaintiff's LAD claims were dismissed on summary judgment. Id. at 227-28.
We reversed, finding that there were "sufficient facts to establish a triable issue concerning negligence on the part of the City for failure to adequately enforce its own policy." Id. at 237-38. Applying the principles of Lehman to the facts, we determined that a "question of fact exists concerning the reasonableness of the City's dissemination, implementation, monitoring and enforcement of its sexual harassment policy." Id. at 236. Although the policy was in effect at the time, the plaintiff and the other employees had not received training. Ibid. There also existed significant doubt on the enforcement of the policy:
Specifically, after the alleged incident, [the] plaintiff promptly complained to both her direct supervisor and her supervisor's supervisor, . . . . [Who], in turn, reported the complaint to his direct supervisor, as well as the person who had direct responsibility for conducting investigations pursuant to the City's sexual
harassment policy. Nevertheless, no investigation was conducted and no effort was made to remediate past conduct or prevent future similar conduct.
[Ibid.]
The present matter is significantly different. As the motion judge reasoned in his grant of summary judgment:
[A]s defendant correctly notes, defendant is not responsible for the hostile work environment created by the aforementioned conduct if defendant took prompt remedial action in response to plaintiff's complaint of sexual harassment. See Payton v. New Jersey Turnpike Authority, 292 N.J. Super. 36, 46 (App. Div. 1996), aff'd, 148 N.J. 524 (1997).
. . . .
Here, defendant had a written policy prohibiting discrimination, harassment, and retaliation . . . . The policy set forth procedures for reporting misconduct (i.e., by filing a formal complaint). Although defendant claims that it offered training on this policy, plaintiff claims that she never received such training. Plaintiff did admit, however, to receiving a copy of the policy. Plaintiff further contends that she was unsure as to whom the policy applied. Inconsistent with this contention, however, is the fact that plaintiff formerly filed a written discrimination complaint with the [EED] alleging that . . . a coworker[] discriminated against her on the basis of age, marital status, race, and gender. This former behavior indicates that plaintiff knew the avenue by which she could report discriminatory conduct. In this instance, however, plaintiff failed to utilize this procedure. Rather, plaintiff did not
complete any EED written paperwork to document her claims at all.
Plaintiff contends that she did not file a complaint because she "feared retaliation
for writing up 'Blue' [i.e., other officers]." This bare fear, however, does not make the complaint procedure any less effective. Moreover, although plaintiff repeatedly asserts that she reported the conduct to Walz, she cannot refute the fact that she failed to file a complaint against her alleged harassers - a process she had completed before. Further, plaintiff cannot claim ignorance of the process while simultaneously admitting that Adams encouraged her to file a complaint.
Although plaintiff failed to follow the protocol in filing a complaint for violation of defendant's discrimination/retaliation policy, defendant nonetheless began a formal investigation of the alleged conduct within two months after she made her actual January 25 oral complaint and was given a complaint form by her EED Liaison[,] which she never filled out. This investigation included interviews of plaintiff, McClish, and other alleged witnesses. Unfortunately for plaintiff, this investigation concluded that plaintiff's claims for sexual harassment and retaliation were unsubstantiated. . . .
Although plaintiff now claims that she reported the incidents to Lt. Walz[] who is a supervisor, her claims in this regard rest on allegations in the complaint, the truth of which she only generally affirmed under oath. Further, despite her deposition comments that "he was out (sic)" supervisor, she never actually states that she was reporting to Walz as a supervisor or that the conduct she complained to Walz about actually continued after she complained.
Moreover, despite plaintiff's apparent dissatisfaction with the investigation and EED determination, plaintiff failed to appeal said determination, even though she was advised of the opportunity to do so.
As such, this [c]ourt finds that defendant had a proper procedure in place for handling discrimination/retaliation claims, which defendant proactively employed despite the lack of a formal complaint here. Thus, employer liability on the part of defendant for a hostile work environment sexual harassment claim is inappropriate here.
Moreover, the standard is due care . . . . Defendant responded with a thorough review of the situation. This was not an investigation in name only. Accordingly, defendant is entitled to judgment as a matter of law on plaintiff's sexual harassment/hostile work environment claim.
[(citations omitted).]
We agree. Summary judgment was properly granted as defendant satisfied its affirmative defense by indisputable proof of its due care in adopting and implementing an effective anti-sexual harassment policy and, pursuant thereto, investigating plaintiff's claims within a reasonable time following plaintiff's reporting to the EED.
The policy, which was enacted on December 16, 1999, revised December 5, 2006, and again on October 7, 2009, explicitly bans sexual discrimination and harassment in the workplace. Scheduled for annual review, the policy defines sexual harassment and offers numerous examples of prohibited behavior, details the responsibilities of employees and supervisors, and outlines the complaint procedure, with forms attached. It is well-publicized and published periodically. Indeed, plaintiff admits receiving a copy of the Policy almost every year. Although she denies training, plaintiff was well aware of the complaint process and grievance procedure as she previously utilized them to formally report workplace harassment and violence in 2005 and 2007.
The facts also demonstrate no material dispute that defendant launched a comprehensive investigation into the alleged harassment. The inquiry endured for over a month and involved interviews of all relevant individuals and the taking of witness statements. In other words, this was not an investigation "in name only." Moreover, plaintiff did not exercise her right to administrative appeal.
The investigation was not only comprehensive, but reasonably prompt. EED first became aware of the harassment allegations on January 25, 2010, when plaintiff spoke to Captain Ryan and EED liaison Adams. Plaintiff went out on leave two days later and never filed a written report. The EED investigation began in early March. Thus, the one-month lapse was neither unreasonable in itself nor prejudicial to plaintiff, considering that, by her own admission, McClish's sexual harassment conduct had ceased back in November 2009 when she confronted him about it.
Plaintiff nevertheless argues that she told Walz about McClish's offensive conduct repeatedly in October-November 2009, and he never reported this information to his superior officers or the EED. Apart from whether plaintiff reported these allegations to Walz as her supervisor or simply confided in him as a friend, the fact remains that as of November 2009, there was no further harassment by McClish to complain of. Moreover, the fact that Walz may have violated the policy by failing to report the alleged discrimination does not per se establish defendant's vicarious liability. On the contrary, the policy itself contains corrective, disciplinary, and remedial action to be taken against such offending supervisors.
The facts here differ significantly from those in Gaines and Velez, on which plaintiff relies, most notably in that defendant actually investigated the harassment allegations. In Gaines, the harassing supervisor raised the incident in front of several high-ranking officers, leaving the plaintiff to believe she had no other recourse. In addition, the warden became aware of the harassment but did not contact the plaintiff until a year later. The Court also noted concerns over training and enforcement of the anti-sexual harassment policy. Similarly, in Velez, the plaintiff informed several supervisors and those supervisors in turn informed the persons responsible for conducting investigations, yet no investigation ever occurred. Thus in both cases, after becoming aware of the sexual harassment allegations, high-ranking officials either failed to act or waited well over a year. That is simply not the case here. EED investigated plaintiff's allegations a little over one month of learning about them. The investigation was thorough and found the allegations unsubstantiated.
Gaines and Velez also stressed the lack of employee training, a fact not present here, in that the officers at Edna Mahan were trained in the State's Policy annually. McClish, Hill, and Sands all testified that they received yearly training on the Policy.
Under the circumstances, the record proof admits of no material factual dispute that under section 219(2)(b), defendant exercised due care because it implemented an effective antisexual harassment policy, offered training on the policy, and completed a comprehensive investigation into the allegations despite the absence of any formal complaint by plaintiff.
IV
Plaintiff also argues there is a material factual dispute whether under Restatement (Second) of Agency, § 219(2)(d), McClish used his supervisory powers to sexually harass plaintiff, and thus render defendant vicariously liable for those actions. Specifically, plaintiff contends that she satisfied all four elements of Lehman because McClish directly supervised plaintiff and controlled her work environment. Defendant counters that the record contains no evidence that the authority delegated to McClish aided his sexual harassment. We discern no proof holding defendant vicariously liable under section 219(2)(d).
Regarding delegated power and section 219(2)(d), the Lehman Court stated:
The determination of whether a supervisor who creates a hostile work environment was aided in accomplishing that tort by the power delegated to him or her to control the day-to-day working environment requires a detailed fact-specific analysis. Specifically, the finder of fact must decide:
1. Did the employer delegate the authority to the supervisor to control the situation of which the plaintiff complains . . . ?
2. Did the supervisor exercise that authority?
3. Did the exercise of authority result in a violation of [the LAD]?
4. Did the authority delegated by the employer to the supervisor aid the
supervisor in injuring the plaintiff?When the answer to each of those questions is yes, then the employer is vicariously liable for the supervisor's harassment under § 219(2)(d).
[Lehman, supra, 132 N.J. at 620 (citation omitted).]
In rejecting this predicate for vicarious liability, the motion judge in this case stated:
Nor can defendants be held liable under the four part test for supervisory harassment set forth in Lehman[, supra], 132 N.J. at 620.We agree.
. . . .
There is no factual showing that the harassment of which plaintiff complains derived from a supervisory relationship. Nor is [there] any proof that authority delegated by [her] employer aided such harassment. In fact, the facts of [the] supervisory relationship are never actually described. It was only stated that McClish, etc.[,] outranked her.
Accordingly, the [c]ourt cannot determine that any measure of control from the higher ranking officers had anything to do with the incidents in question. Thus, on this very sketchy record, the Court is unable to find an issue of fact that any supervisor created a hostile work environment by the power to control her day to day environment.
In Gaines, supra, the Court found that the plaintiff's claim survived a motion for summary judgment under a section 219(2)(d) theory. 173 N.J. at 320. In that case, the plaintiff's supervisor subjected her to unwanted kissing. Id. at 304. The Court found genuine issues of fact concerning whether the supervisor was aided by his agency relationship, id. at 320, because the facts demonstrated that even though the harassing supervisor was under the control of another officer, he nonetheless had unquestionable authority over all officers during his shift, id. at 319. Furthermore, the harassing supervisor brought up the kissing incident to other high-ranking officers in front of the plaintiff, id. at 306, allowing her to believe she had no recourse. Moreover, the plaintiff alleged the harassing supervisor "'bounced her from post to post' and threatened to have her written-up for procedural violations after the kissing and other incidents occurred." Id. at 320. The scope of the supervisor's authority was "sharply disputed" by both parties. Ibid.
The case of Entrot, supra, 359 N.J. Super. at 162, upon which plaintiff relies, is similarly distinguishable. There, we found disputed fact questions regarding whether the hostile environment was aided by the employer's delegation of authority. Id. at 193. The plaintiff provided substantial evidence of the supervisor's control over the plaintiff. Id. at 181-82. The supervisor was the "overall team leader" of the project, who would assign projects and tasks. Id. at 181. He would tell plaintiff what to do, how to do it, when to do it, and where to do it. Ibid. He also provided input and gave performance reviews. Id. at 182. In this regard, the supervisor told the plaintiff "'I'm the boss, I have [fifty-one percent] of the vote, I can get you thrown off this project anytime I want,'" putting her in fear of losing her job and her reputation if she did not follow his instructions precisely. Ibid. The supervisor also played "mind games" with the plaintiff leading to their sexual encounters. Ibid.
In the present case, plaintiff has failed to satisfy the four elements of Lehman. There has been no factual showing that McClish's supervisory authority aided his harassment. Plaintiff only demonstrates that McClish was her supervisor and outranked her. Yet the mere fact that McClish was plaintiff's supervisor is not enough. Entrot, supra, 359 N.J. Super. at 181; see also Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 123 (1999). The real question is "whether the power the offending employee possessed was reasonably perceived by the victim, accurately or not, as giving that employee the power to adversely affect the victim's working life." Entrot, supra, 359 N.J. Super. at 181.
Unlike Gaines and Entrot, plaintiff offers no evidence that McClish falsely asserted his power to control her day-to-day working environment, much less adversely affect her economic likelihood. The plaintiffs in Gaines and Entrot provided evidence that the supervisors directed their job functions and punished them for disobedience, thus abusing their supervisory power to harass the plaintiffs. In contrast, the record here is devoid of any such proof. Moreover, McClish was neither the chief ranking officer nor the highest level supervisor at Edna Mahan, himself answerable to Chief Ryan who directed plaintiff to report to the EED. Thus, as the unfolding events themselves evidence, McClish's authority and control was neither complete nor unchecked and plaintiff clearly had places to turn to redress his sexual harassment.
In sum, we are satisfied that the record is devoid of any proof upon which to hold defendant vicariously liable for the offending conduct of any of its employees. There is no evidence upon which a jury may reasonably find defendant negligently administered its anti-sexual harassment policy or aided the harassment through the authority it delegated to its offending employees.
V
Lastly, plaintiff argues that her claim for punitive damages must be remanded for trial because she has proven a violation of LAD. Defendant contends that since there is no LAD violation, punitive damages are inappropriate.
The motion judge stated:
The New Jersey [Legislature] authorized punitive damages in a New Jersey [LAD] case like the present one. See N.J.S.A. []10:5-3. Punitive damages may be awarded where the plaintiff proves "that the harm suffered was the result of the defendant's acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions." N.J.S.A. §2A:15-5.12.
Although plaintiff claims that McClish's, Hill's, and Sands' sexually harassing conduct . . . reaches the level of egregiousness required for punitive damages, it is questionable whether or not the evidence meets the required threshold for punitive damages. Id. Moreover, an award of punitive damages requires an underlying violation of the [LAD]. See N.J.S.A. §10:5-3. No such violation was found here, as this [c]ourt determined above that plaintiff cannot sustain a claim for sexual harassment/hostile work environment or retaliation under the [LAD] against defendant. As such, plaintiff is not entitled to punitive damages, as there is no violation of law to form the basis of an award of damages. Id. Accordingly, defendant is entitled to judgment as a matter of law on plaintiff's punitive damages claim.
A greater threshold than mere negligence is applied to punitive damages. Lehman, supra, 132 N.J. at 624. "Punitive damages are to be awarded when the wrongdoer's conduct is especially egregious. Hence, the employer should be liable for punitive damages only in the event of actual participation by upper management or willful indifference." Id. at 624-25 (citation omitted) (internal quotation marks omitted). The Court has defined upper management, stating:
For these purposes, it is fair and reasonable to conclude that upper management would consist of those responsible to formulate the organization's antidiscrimination policies, provide compliance programs and insist on performance (its governing body, its executive officers), and those to whom the organization has delegated the responsibility to execute its policies in the workplace, who set the atmosphere or control the day-to-day operations of the unit (such as heads of departments, regional managers, or compliance officers). For an employee on the second tier of management to be considered a member of "upper management," the employee should have either (1) broad supervisory powers over the involved employees, including the power to hire, fire, promote, and discipline, or (2) the delegated responsibility to execute the employer's policies to ensure a safe, productive and discrimination-free workplace. Obviously such instructions should be tailored to the facts of the case and might be accompanied by special interrogatories when several officers are presented as members of "upper management."
[Cavuoti, supra, 161 N.J. at 128-29.]
As previously demonstrated, there is no underlying LAD violation justifying the imposition of punitive damages.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION