Opinion
DOCKET NO. A-3606-13T2
03-03-2016
D.V., Plaintiff-Appellant, v. R.V., Individually and as Director for CURA, Inc., Defendant, and CURA, INC., and GLORIA E. PLAZA, President and CEO of CURA, Inc., Defendants-Respondents.
Daniel W. Sexton argued the cause for appellant. Wayne E. Pinkstone argued the cause for respondents (Fox Rothschild LLP, attorneys; Mr. Pinkstone, of counsel and on the brief; Eileen Powers, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4186-11. Daniel W. Sexton argued the cause for appellant. Wayne E. Pinkstone argued the cause for respondents (Fox Rothschild LLP, attorneys; Mr. Pinkstone, of counsel and on the brief; Eileen Powers, on the brief). The opinion of the court was delivered by ST. JOHN, J.A.D.
This action arises from plaintiff D.V.'s volunteer employment with defendant CURA, Inc., and a romantic relationship with defendant R.V., a Director for CURA. Plaintiff filed a thirteen-count complaint against (1) CURA, (2) its President and CEO, defendant Gloria Plaza (collectively, defendants), and (3) R.V., individually and in his capacity as Director. The complaint asserted claims for: reckless and unconscionable exposure of plaintiff to HIV/AIDS (count one); hostile work environment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 (count two); LAD quid pro quo sexual harassment (count three); LAD wrongful discharge (count four); intentional infliction of emotional distress (IIED) (count five); respondeat superior liability (count eight); stalking and harassment (count nine); assault and battery (count ten); negligent infliction of emotional distress (NIED) (count eleven); punitive damages (count twelve); and common law wrongful discharge (count thirteen).
Plaintiff's claims against R.V. individually have been settled.
Counts six and seven were not included in the complaint.
Plaintiff appeals from four Law Division orders: a September 27, 2013 order denying her application to amend the complaint; an October 23 order granting summary judgment and dismissing all claims against defendants; and two orders — one from November 8, the other from December 6 — denying reconsideration of those orders, respectively. Plaintiff's cross-motion for partial summary judgment as to liability was also denied.
On appeal, plaintiff challenges as erroneous the summary judgment dismissal of her complaint and denial of reconsideration, arguing the record contains disputed facts on alleged claims of sexual harassment warranting jury review. Further, plaintiff contends the denial of her motion to amend and its reconsideration was an abuse of discretion, resulting in a miscarriage of justice. She maintains the motion only sought to clarify an existing claim for malpractice and was not an attempt to plead additional causes of action. Plaintiff also challenges the dismissal of her quid pro quo and wrongful discharge claims against defendants as erroneous and requests reinstatement. She asks summary judgment be vacated, her complaint restored with the ability to file an amended complaint, and a directed verdict be entered against defendants for malpractice. Upon our review, in light of the record and governing law, we affirm.
I.
Initially, before we recite the underlying facts, we address plaintiff's references in her brief to an expert report authored by Barbara Wallace, Ph.D. Plaintiff relies on this report to substantiate her claim that she was subjected to harassment and emotional distress by defendants. However, the court granted plaintiff's motion with regard to the report only after the claims against defendants were dismissed, and only with regard to plaintiff's "surviving claims for intentional infliction of emotional distress and negligent infliction of emotional distress as to [R.V.] in his individual capacity." With regard to the issues on appeal, we will not consider an expert report that was not admitted by the trial court and that is now submitted by plaintiff for the first time on appeal. Davis v. Devereux Found., 209 N.J. 269, 296 n.8 (2012). Accordingly, we do not consider the Wallace expert report and our review is based on the trial record as it applies to the issues before us. See R. 2:5-4(a).
We discern the following facts and procedural history from the record, viewed in the light most favorable to the non-moving party. Robinson v. Vivirito, 217 N.J. 199, 203 (2014). CURA is a non-profit corporation formed for the treatment and rehabilitation of individuals who are addicted to drugs and/or alcohol. Plaza is its co-founder, President and CEO, and R.V. served as a Director since September 2008.
Plaintiff ignores the fact that it is her responsibility to refer us to specific parts of the record to support her argument. She may not discharge that duty by inviting us to search through the record ourselves. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Plaintiff's brief routinely does not comply with the requirement that the statement of facts must be supported by references to the record and transcripts. R. 2:6-2(a)(4).
Plaintiff was treated inpatient and outpatient at CURA from 2006 to January 2009. For the entire course of her treatment, her treating therapist was Sabrina Jennings, who was not a Certified Alcohol and Other Drugs of Addiction Counselor (CADC). R.V., a licensed CADC, served as Jennings' supervisor, pursuant to N.J.A.C. 13:34C-6.2. Although R.V. never provided therapy directly to plaintiff, beginning in November 2008, he signed all of her treatment records. After watching plaintiff in a television documentary, R.V. asked to meet her. Thereafter, R.V. began taking plaintiff out to dinner and, she contends, told Jennings to close plaintiff's file and have her apply to be an unpaid intern at CURA. Plaintiff was officially discharged from treatment on January 15, 2009.
Plaintiff completed an application for an unpaid internship in November 2009. As part of the process, plaintiff represented in a written statement to CURA that Jennings was her counselor, and she had completed both inpatient treatment at CURA in Secaucus and outpatient treatment at CURA in Newark. She began to work in January 2010 with the understanding she "was going to start off as a volunteer and then work [her] way to get a permanent job" as a CADC. Plaintiff contends her volunteer status was never approved by CURA's human resources (HR) department. After plaintiff began, R.V. "let [his] supervisors know" she "started coming to the program." Plaintiff contends, without evidential support, that HR instructed R.V. that plaintiff was not ready to take on the role of an intern, but he "didn't listen." However, her contention is belied by CURA's file copy of her application which contains the written notation by "VP/HR" that plaintiff "does not have the credentials to facilitate therapy groups, may only assist a credentialed counselor."
In March 2010, plaintiff attended an orientation, receiving training on CURA's policies and procedures. At the meeting, she received documentation, including an employee handbook. Plaintiff could not specifically recall the policies and procedures reviewed that day, but stated CURA's code of ethics and anti-harassment guidelines were not discussed. However, it is uncontroverted CURA's employee handbook contained detailed policies on sexual harassment and discrimination, and the procedures for reporting violations.
According to plaintiff, her responsibilities as a volunteer at CURA included completing paperwork, facilitating group therapy sessions, and counseling clients in private, one-on-one sessions. Plaintiff alleged her tenure at CURA was replete with sexual harassment, verbal abuse, and threats of physical violence from R.V. Specifically, she
claims that, during her employment, (1) she was the only employee without a desk, and was forced to work in [R.V.]'s office, (2) she did not have her own caseload, (3) [R.V.] requested that she eat lunch with him and not with co-workers, (4) [R.V.] lied to her about the prospects for employment and about her progress towards counselor certification, (5) [R.V.] removed male patients from her caseload, and (6) [R.V.] "harassed" her.Further, she also contended R.V. called her names, would sometimes be nice to her and then other times verbally assault and insult her.
She maintained, without evidential support, middle and upper management of CURA knew of R.V.'s actions and "didn't stop it." As to the other managers and employees of CURA, she claimed "[t]hey could have . . . stopped it. If they knew he was married." However, she acknowledged she never asked anyone to stop it, further stating, "I barely spoke to them." Plaintiff, however, never reported the alleged abuse to Plaza. Plaza denied any knowledge of the alleged misconduct, contending had she known, "something would have been done."
In January 2010, plaintiff and R.V. began a romantic relationship, including taking "[n]ot more than 50 but more than 20" trips together to Atlantic City. She acknowledged that when she "first started working for CURA," R.V. bought her a van, and "[h]e paid for everything," including insurance and gasoline. She also introduced R.V. to her mother and children, stayed with R.V.'s parents in Puerto Rico after attending a narcotics anonymous convention, and even discussed marriage.
She described her first sexual encounter with R.V. in 2010, stating: "I'm telling him no and no and he still just kept and that's when the sex part came in." Despite considering herself to be R.V.'s "girlfriend," and "loving him," plaintiff disputed the consensual nature of their entire relationship.
In return for a romantic relationship, R.V. allegedly promised to help advance her career as a CADC:
[H]e told me he was single and then he made me so many promises just to get me in to work with him and then after I got in, everything . . . he told me that . . . I'll start out as a volunteer and then I go through my [ninety]-day promotional period
to get a job to become an employee, he lied to me about that. He lied to me about helping me with the CADC test. . . . [H]e told me every week he was going to give me a few questions, just so I can . . . prepare myself for the test. He never did that. He promised me that I was going to . . . get my own office and . . . have my own desk and have my own caseload and everything that he promised me towards the job, he didn't do. I didn't like the fact that I had to work from his desk. I had to work with his caseload. . . . He stressed me out of how he'll talk to me in front of the clients when he had an issue with me and him. Instead of . . . putting our differences to the side. Sometimes he would just . . . say things in front of the clients and they used to look at me like . . . is he crazy or something. . . . I stressed over that. When he used to be jealous of [a] coworker, . . . a lot of times he embarrassed me with Mr. Santiago and you know, he stressed me out throughout. . . . It was a lot of things that he did, you know, he did to me.
In December 2010, plaintiff learned through a co-worker R.V. was HIV positive. R.V. admitted to disclosing his condition to plaintiff three months after first having sexual relations with her.
In April 2011, plaintiff contends, both the relationship and her employment ended due to "find[ing] out [R.V.] was married." However, plaintiff returned to CURA in early July 2011, working three days a week. On July 13, 2011, plaintiff applied for, and received, a temporary restraining order (TRO) against R.V. Describing the relationship, as part of the grounds necessitating a TRO, plaintiff explained:
The record is not clear whether, in fact, R.V. was actually married.
Parties had a dating relationship; they do not have any children in common. The plaintiff states the reason the relationship ended on [April 23, 2011] because [R.V.] was married and HIV positive and didn't inform her.She did not contend in her TRO application that R.V. engaged in non-consensual sex with her or that he threatened or physically abused her. Plaintiff did allege R.V. "verbally and mentally abused her during the relationship . . . after she found out he was HIV positive." However, R.V. was never served with the restraining order or notified by plaintiff that she had obtained it.
On August 11, 2011, plaintiff filed the complaint in this matter. Eight days later, she voluntarily left CURA permanently. In her deposition, plaintiff explained she left
[b]ecause I had a big argument with [R.V.] in the program because he was — Mr. Santiago [a male coworker] was showing me . . . a new form that came out. So he was showing me how it's supposed to be fill[ed] in and [R.V.] happened to walk in and after he walked out, he cursed me out. He called me names and you know, I saw the anger in him of jealousy and I just couldn't . . . work with him [anymore].
However, from September 3 through September 27, 2011, plaintiff sent R.V. a series of text messages from her cell phone. "These messages include[d]: (1) 'I still love u. :-([;]' (2) 'Come out n meet me about I change my mind. Its [sic] your last opportunity[;]' (3) 'If I c u tonight I promise I will do the right thing ur choice last chance[;]' and (4) 'If I get to c u n talk to u maybe I change my mind. Otherwise everything stays the same.'"
Defendants moved, independently, to dismiss the complaint for failure to state a claim upon which relief may be granted. On December 6, 2011, the Law Division dismissed counts one, three, four, eight, nine, ten, and twelve, with prejudice. Orders memorializing the court's decision with respect to each of the defendants were entered the same day.
CURA and Plaza were jointly represented; R.V. retained separate counsel.
Plaintiff submitted an application for leave to amend her complaint on August 19, 2013, to add a malpractice claim, approximately two years after suit was filed. On August 22, CURA and Plaza moved for the summary judgment dismissal of plaintiff's remaining four claims: hostile work environment (count two); intentional infliction of emotional distress (count five); negligent infliction of emotional distress (count eleven); and common law wrongful discharge (count thirteen). R.V. joined in the motion the following day. Plaintiff opposed, and on September 17, 2013, cross-moved for summary judgment as to liability only. On September 27, the Law Division denied plaintiff's request for leave to amend her complaint, stating, "[a]fter 714 days of discovery, this application is grossly late. Complete lack of due diligence to warrant substitution of parties under the fictitious defendant rule."
In a comprehensive twenty-eight page written decision issued on October 17, 2013, the court partially granted summary judgment dismissing all remaining claims against CURA, Plaza, and R.V., in his capacity as a director. Regarding R.V., individually, summary judgment was granted in part and denied in part. Dismissal of counts two and thirteen was granted; dismissal of counts five and eleven was denied. Plaintiff's cross-motion for summary judgment was also denied. The court entered an order memorializing these decisions on October 23, 2013.
On October 21, 2013, plaintiff moved for reconsideration of the denial of her application for leave to amend. The court denied the motion, finding "[n]o new information or case law has been presented that would warrant reconsideration of [the] order entered on [September 27, 2013]."
On November 4, 2013, plaintiff moved for reconsideration of the partial grant of summary judgment and the denial of her cross-motion. She also sought to reinstate previously dismissed claims for quid pro quo sexual harassment (count three) and wrongful termination under the LAD (count four). The court denied reconsideration, and an order memorializing that decision was entered on December 6, 2013. On March 18, 2014, plaintiff settled her remaining claims against R.V. in his individual capacity.
This order was dated incorrectly as oral argument was held on December 10, 2013.
On appeal, plaintiff argues that the Law Division erred in dismissing her claims for violation of the LAD while she was a patient at CURA and during her employment there. She also argues that the court erred in dismissing on summary judgment her quid pro quo and wrongful discharge claims. Finally, she argues that a denial of her motion to amend her complaint was an abuse of discretion by the trial court. We disagree.
II.
"A ruling on summary judgment is reviewed de novo. We thus apply the same standard governing the trial court, and do not defer to the trial court's . . . interpretation of the meaning of a statute or the common law . . . ." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations and internal quotation marks omitted). Thus, we consider, as the motion judge did, "'whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). A motion for summary judgment will not be precluded by bare conclusions lacking factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:46-2 (2015). Further, "it is evidence that must be relied upon to establish a genuine issue of fact. Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (citation and internal quotation marks omitted), certif. denied, 220 N.J. 269 (2015).
"If there is no genuine issue of material fact, we must then decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation and internal quotation marks omitted). We review issues of law de novo and accord no deference to the trial judge's conclusions thereon. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
As for the denial of the motions for reconsideration, we have determined that:
Reconsideration itself is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice . . . . It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citations and internal quotation marks omitted).]
We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 289.
In Aguas v. State, 220 N.J. 494 (2015), the Court set the standard for analysis of employee sexual harassment claims and employer defenses. In that case, the plaintiff asserted two LAD claims against her employer, the State of New Jersey. Id. at 499, 505. The claims alleged that her supervisors had subjected her to sexual harassment and created a hostile work environment. Id. at 499-500.
The plaintiff in Aguas verbally reported her allegations to supervisors, but failed to file a written complaint with the Equal Employment Division pursuant to the State's anti-harassment policy, "a copy of which the plaintiff admitted she received." Id. at 504. The trial court found that plaintiff had successfully presented a prima facie hostile work environment claim. Nevertheless, the court granted summary judgment to the State "because the State established an affirmative defense by showing an effective anti-harassment policy was in place," which plaintiff had failed to follow. Id. at 506.
On certification to the Supreme Court, the plaintiff in Aguas argued the affirmative defense was unavailable in LAD cases of sexual harassment by a supervisor. Id. at 507. The Court observed that, since Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 592 (1993), it had recognized that employer liability in sexual harassment cases is governed by principles of agency. See Aguas, supra, 220 N.J. at 511.
The Court explained that employee sexual harassment claims fall into two categories: they are either "a direct cause of action against the employer for negligence or recklessness under Restatement § 219(2)(b)[,]" or "a claim for vicarious liability under Restatement § 219(2)(d)." Aguas, supra, 220 N.J. at 512. Although "often discussed in tandem," the Court distinguished the two types of claims as "analytically distinct from and independent of one another" and, therefore, each claim "must be addressed separately." Ibid.
With respect to direct claims, the Court in Aguas noted that the plaintiff must prove the employer "failed to exercise due care with respect to sexual harassment in the workplace, that its breach of the duty of care caused the plaintiff's harm, and that [he or] she sustained damages." Ibid. The Court also recognized "an employer's implementation and enforcement of an effective anti-harassment policy," is "a critical factor in determining negligence and recklessness claims under Restatement § 219(2)(b)." Id. at 499.
The Second Restatement has been superseded by Third Restatement of Agency. Section 219 of the former — along with §§ 220, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, and 267 — has been subsumed and consolidated in Restatement (Third) of Agency § 7.07 (2006). --------
With respect to vicarious liability claims, the Court stated:
an employee may assert that the employer is vicariously liable for sexual harassment committed by its employee because the sexual harasser purported to act on the employer's
behalf and "there was reliance upon his or her apparent authority," or because the harasser "was aided in his or her misconduct by the existence of an agency relationship" with his or her employer.
[Id. at 514 (quoting Restatement § 219(2)(d)).]
Lehmann never expressly addressed under what analytical framework an employer's anti-harassment policy should be considered. Nevertheless, the Court in Aguas noted that the prevailing jurisprudence established by Lehmann and its progeny "strongly supports the availability of an affirmative defense, based on the employer's creation and enforcement of an effective policy against sexual harassment . . . ." Ibid.
As a result, the Court adopted the Ellerth/Faragher test, set forth by the United States Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633, 655 (1998), for defending claims alleging vicarious liability for supervisory harassment under Restatement § 219(2)(b). The test allows employers to plead, as an affirmative defense, the adoption and enforcement of an effective policy against sexual harassment, so long as the employee suffered no tangible employment action. Aguas, supra, 220 N.J. at 523-24 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S. Ct. 2275, 2292-93, 141 L. Ed. 2d 662, 689 (1998)).
With these principles in mind, we now turn to our examination of the counts of plaintiff's complaint under appeal. In count two, she asserted a violation of the LAD, alleging "[R.V.] and other managers and employees of [CURA] . . . created and maintained a hostile work environment based on plaintiff's sex." Count three alleged R.V. "committed blatant quid pro quo sexual harassment in plain view of staff and management who by their inaction explicitly or implicitly approved this action." She maintained in count four that she was wrongfully terminated in violation of the LAD in that R.V. promised her she would be "a paid regular employee" and she relied upon that promise to her detriment. Count thirteen asserts wrongful discharge.
We first address the LAD. 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, 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, . . . [or] 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. Lehmann, supra, 132 N.J. at 601.
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. It involves an implicit or explicit threat that if the employee does not accede to the sexual demands, he or she will lose his or her job, receive unfavorable performance reviews, be passed over for promotions, or suffer other adverse employment consequences. 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.]
To survive a motion for summary judgment on a hostile work environment sexual harassment claim, a plaintiff must make a prima facie showing that the harassment "(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." Id. at 603-04 (emphasis omitted).
The bulk of plaintiff's argument revolves around conduct occurring while she was employed by CURA. However, plaintiff also asserts she was subjected to "outrageous sexual discrimination while she was a patient at CURA." She maintains this is a separate and distinct allegation from prohibited sex-based discrimination at the workplace because hospitals are places of "public accommodation," N.J.S.A. 10:5-12(f). We note, although Lehmann concerned a case of alleged sexual harassment at the plaintiff's place of employment, the Supreme Court has applied these same standards in reviewing claims of sexual harassment in non-workplace settings, such as institutions of higher learning. See Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 (2008); see also N.J.S.A. 10:5-4 ("All persons shall have the opportunity to obtain . . . all the accommodations, advantages . . . and privileges of any place of public accommodation . . . without discrimination because of . . . sex . . . .").
Plaintiff raised this issue for the first time at oral argument on reconsideration of the grant of summary judgment to defendants. The "mere mention of an issue in oral argument does not require an appellate court to address it." Pressler, supra comment 2 on R. 2:6-2 (2015). "Issues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." Ibid.; see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1977). Plaintiff's argument presents neither a jurisdictional issue, nor an issue substantially implicating public interest. However, for completeness, we briefly address plaintiff's assertion.
Plaintiff's legal contention is belied by the facts. It is undisputed plaintiff was discharged as a patient from CURA in January 2009, and did not present any facts to support her allegation of "outrageous sexual discrimination while she was a patient at CURA." We note plaintiff did not have her first sexual experience with R.V. until much later. Accordingly, this claim was properly rejected.
We now address plaintiff's argument concerning harassment while she was employed at CURA. She proffered the following allegations of abuse to support her hostile work environment sexual harassment claim:
(1) [p]laintiff was made a therapist before the appropriate time and against the directive of [HR], (2) [R.V.] refused to process paper work related to the satisfaction of clinical hours, (3) [R.V.] promised that [p]laintiff's unpaid position would turn into a paid position, (4) [R.V.] made [p]laintiff do his paperwork, (5)
[R.V.] controlled [p]laintiff and allowed her very little contact with co-workers, (6) [R.V.] did not provide [p]laintiff with her own work space, requiring that she work in his office, (7) [R.V.], due to jealousy, removed all males from [p]laintiff's client list, (8) [R.V.] yelled at [p]laintiff using vulgar language, (9) [R.V.] threatened the [p]laintiff with violence on a trip to Atlantic City, (10) [R.V.] exposed [p]laintiff to HIV without telling her.Plaintiff also claimed R.V. "used his position of power and authority at CURA . . . to obtain sex and companionship from other patients, volunteer workers, and regular staff members."
Defendants countered by arguing the alleged interactions were not unwelcomed and plaintiff could not establish severe or pervasive conduct. Defendants argue "[v]arious cases recognize that a consensual sexual relationship between employees negates the elements of a hostile environment sexual harassment claim." J.M.L. ex rel. T.G. v. A.M.P., 379 N.J. Super. 142, 148 (App. Div. 2005) (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 557 (1990); Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 78 (App. Div. 2004)). This rule, however, is not absolute. Even in consensual relationships, harassment may nonetheless occur if the conduct was undesired. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S. Ct. 2399, 2406, 91 L. Ed. 2d 49, 60 (1986) ("[T]he fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome." (citation and internal quotation marks omitted)).
Plaintiff argues that she was unable to consent due to the counselor/patient relationship between her and R.V. She supported her lack of consent with references to the administrative code prohibiting sexual relationships between counselors and former patients. See N.J.A.C. 13:42-10.9 ("A licensee shall not engage in sexual contact with a current client, a former client to whom psychological services were rendered within the immediately preceding 24 months, a current student, a direct supervisee or supervisor, or a research subject."). A violation may result in refusal to license or renew. N.J.S.A. 45:1-21.
The Law Division rejected this argument and affirmed its grant of summary judgment, holding the penalty for violating these provisions was only a licensure limitation and did not create a civil cause of action. We agree and conclude plaintiff's contention is unavailing. Where professional negligence is alleged, the standard of care must be established by expert testimony. F.G. v. MacDonell, 291 N.J. Super. 262, 272 (App. Div. 1996), rev'd on other grounds, 150 N.J. 550 (1997); Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 542 n.4 (App. Div. 2002).
Turning to plaintiff's central allegations of employment based discrimination, the Law Division rejected these allegations under the first prong of Lehmann, as insufficient to create a genuine issue of material fact. The judge stated:
The only allegation directly related to gender is [R.V.]'s alleged removal of males from [p]laintiff's patient list. Any removal, however, was not accompanied by any of the traditional actions characterized as harassment in Lehmann. There is no evidence that [R.V.] removed the male patients because he believed [p]laintiff was unable to perform her duties due to her gender. There is no evidence that [R.V.] made any negative comments with regard to [p]laintiff's gender. There is also no indication that any other female counselors were prohibited from working with male patients. The [c]ourt is unable to draw any inferences from this action indicating harassment based on [p]laintiff's gender. Rather[,] it suggests merely jealous or vindictive behavior. Plaintiff's moving papers even concede that [R.V.]'s removal of male patients stemmed from jealousy. Accordingly, this action, while gender-based on its face, was not sexual or sexist, and did not occur because of Plaintiff's sex. See Lehmann, [supra,] 132 N.J. at 605.
The remaining allegations are not overtly sexual and [p]laintiff has not made the requisite showing that only women were subjected to similar harassment. Indeed, the record is completely bereft of any reference to harassment of other CURA
employees. Plaintiff's first allegation, that she was made a therapist too early, cannot even be characterized as harassment. The final two listed allegations occurred entirely outside the scope of [p]laintiff's employment. While there is some evidence to indicate that [R.V.] had entered romantic relationships with patients, there are no articulable facts that indicate other employees were subjected to harassment because of their gender. Plaintiff is entitled to a workplace free from discrimination; she is not entitled to a workplace free from jealous behavior or confrontation with a supervisor/paramour. The cited evidence does not support the satisfaction of the first Lehmann prong.
The second prong of the Lehmann test fails for similar reasons. Plaintiff has not substantiated any allegation that [d]efendants created or acquiesced to severe or pervasive conduct. The [c]ourt holds that the facts articulated by [p]laintiff do not rise to the level of severe. Annoyances like not having a desk or being forced to do some of one's boss's work do not rise to the level of severe or pervasive conduct. See Herman v. Coastal Corp., 348 N.J. Super. [1,] 23 [(App. Div. 2002), certif. denied, 174 N.J. 363 (2002) ("Although a person is legally entitled to a work environment free of hostility, she is not entitled to a perfect workplace, free of annoyances and colleagues she finds disagreeable. In short, what is illegal is a 'hostile work environment,' not an 'annoying work environment.'"[] (quoting Lynch v. New Deal Delivery Serv., Inc., 974 F. Supp. 441, 452 (D.N.J. 1997)))]. The [c]ourt again notes that [p]laintiff has also failed to provide any evidence that other women were subjected to harassing behavior, much less conduct that could be considered pervasive. Plaintiff has not satisfied the first two
prongs of the Lehmann framework, and this claim fails as a matter of law.
Upon review of plaintiff's hostile work environment claim and quid pro quo sexual harassment, we conclude the court applied the correct standard of review and reached the proper decision.
"A hostile work environment exists when a workplace is permeated with discriminatory intimidation, ridicule and insult so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment." Cortes v. Univ. of Med. & Dentistry of New Jersey, 391 F. Supp. 2d 298, 308 (D.N.J. 2005). "[C]onduct must be extreme to amount to a change in the terms and conditions of employment." Heitzman v. Monmouth Cnty., 321 N.J. Super. 133, 147 (App. Div. 1999), overruled on other grounds, Cutler v. Dorn, 196 N.J. 419 (2008) (quoting Faragher, supra, 524 U.S. at 788, 118 S. Ct. at 2284, 141 L. Ed. 2d at 677 (1998)). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Ibid. (internal quotation marks omitted). We agree with the trial court that plaintiff's factual allegations do not demonstrate a condition so severe or pervasive as to alter the conditions of her employment and create an abusive working environment.
The court also rejected plaintiff's allegations that R.V. threatened plaintiff on a trip to Atlantic City and exposed plaintiff to HIV without telling her. We note the Supreme Court has recognized that harassment by a supervisor that takes place outside of the workplace can be actionable. Am. Motorists Ins. Co. v. L-C-A Sales Co., 155 N.J. 29, 42 (1998). In American Motorists, the Court "note[d] that whether specific acts of harassment or discrimination took place outside of the workplace, such as harassing telephone calls . . . is of no consequence because such conduct nevertheless would have arisen out of the employment relationship between [the plaintiff and the defendant corporation]." Ibid.
Plaintiff further argues the court erred in dismissing her quid pro quo sexual harassment (count three) and LAD wrongful discharge (count four) claims. She contends they were "improvidently dismissed" based on facts later revealed during discovery.
We review de novo the trial court's decision to dismiss a complaint as a matter of law under Rule 4:6-2(e). Teamsters Local 97 v. State, 434 N.J. Super. 393, 413 (App. Div. 2014). Unlike factual findings, we do not owe any deference to the trial court's conclusions of law. Rezem Family Assocs., L.P. v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011). The standard under Rule 4:6-2(e) is "whether a cause of action is 'suggested' by the facts." Teamsters Local 97, supra, 434 N.J. Super. at 412 (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). In reviewing the complaint, we assume the allegations made by the party resisting the motion to dismiss are true. We will thus give that party the benefit of all reasonable inferences. NCP Litig. Trust v. KPMG, L.L.P., 187 N.J. 353, 365 (2006) (citing Smith v. SBC Communs., Inc., 178 N.J. 265, 282 (2004)).
Finally, a motion to dismiss a complaint may not be denied merely "based on the possibility that discovery may establish the requisite claim; rather, the legal requisites for plaintiffs' claim must be apparent from the complaint itself." Teamsters Local 97, supra, 434 N.J. Super. at 413 (citations omitted). See also Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005) (finding the complaint must be dismissed if it fails to "articulate a legal basis entitling plaintiff to relief"). Mindful of these standards, we review the trial court's decision to dismiss plaintiff's complaint.
Plaintiff contends the court erred in dismissing her quid pro quo sexual harassment claim (count three), by determining "the plaintiff and [R.V.] were in a relationship." The court concluded "because of the existence of a relationship between plaintiff and defendant [R.V.], the plaintiff has failed to establish a cause of action." In a footnote in her brief and without any reference to the record, plaintiff contends "there is an admitted sexual relationship between Director [R.V.] and his admitted refusal to pay her and to process her paperwork because of this relationship." In her complaint, plaintiff stated she "believed that her status as a client and her hiring as a permanent employee was dependent upon her acquiescing to the sexual demands of Defendant [R.V.]" She also stated "[i]n exchange for this sexual abuse, plaintiff was hired on a volunteer basis as a substance abuse counselor." We note in a typical discrimination claim, the adverse employment action is the employer's refusal to hire, or termination of, the aggrieved employee not the employer's decision to hire the employee.
In reviewing the grant of a motion to dismiss, "we have cautioned that legal sufficiency requires allegation of all the facts that the cause of action requires." Cornett v. Johnson & Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010), aff'd in part and modified in part, 211 N.J. 362 (2012). In the absence of such allegations, the claim must be dismissed. Ibid. (citing Sickles, supra, 379 N.J. Super. at 106). In the context of a motion to dismiss for failure to state a claim, the law is clear that "a court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief." Sickles, supra, 379 N.J. Super. at 106; see also County of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009) (recognizing that where a "complaint states no basis for relief and [] discovery would not provide one, dismissal of the complaint" under Rule 4:6-2 is appropriate), certif. denied, 201 N.J. 153 (2010). Here, plaintiff alleged she was hired by CURA as a volunteer because she was having a sexual relationship with R.V. Plaintiff must prove the employer "failed to exercise due care with respect to sexual harassment in the workplace, that its breach of the duty of care caused the plaintiff's harm, and that she sustained damages." Aguas, supra, 220 N.J. at 512. The court concluded the relationship was not actionable and did not support the claim of quid pro quo sexual discrimination. We agree.
With regard to the court's dismissal of plaintiff's LAD wrongful discharge (count four) claim, plaintiff contends she left her employment in April 2011, due to "find[ing] out [R.V.] was married." However, she returned to CURA in early July 2011, working three days a week. In August, she voluntarily left CURA permanently. In her deposition, plaintiff explained she left
[b]ecause I had a big argument with [R.V.] in the program because he was — Mr. Santiago
[a male coworker] was showing me . . . a new form that came out. So he was showing me how it's supposed to be fill[ed] in and [R.V.] happened to walk in and after he walked out, he cursed me out. He called me names and you know, I saw the anger in him of jealousy and I just couldn't . . . work with him [anymore].
In a typical discrimination claim, the adverse employment action is the employer's refusal to hire, or termination of, the aggrieved employee. However, employer actions that do not rise to this level, such as "constructive discharge" in the case of an employee who resigns, as in this case, may qualify as adverse. "Generally, a constructive discharge under the LAD occurs when an employer knowingly permit[s] conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 27-28 (2002) (internal quotations omitted).
The standard for constructive discharge is stricter than that for a hostile work environment claim, which only "requires 'severe or pervasive' conduct that objectively 'alters the conditions of employment' and is 'hostile or abusive.'" Shepherd, supra, 174 N.J. at 28. "[C]onstructive discharge requires not merely 'severe or pervasive' conduct, but conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it." Ibid. Intolerable conduct means conduct that "conveys a sense of outrageous, coercive and unconscionable requirements." Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 428 (App. Div. 2001). In fact, an employee claiming constructive discharge
has the obligation to do what is necessary and reasonable in order to remain employed rather than simply quit. A trial court should consider the nature of the harassment, the closeness of the working relationship between the harasser and the victim, whether the employee resorted to internal grievance procedures, the responsiveness of the employer to the employee's complaints, and all other relevant circumstances.
[Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 420 (App. Div. 2001), rev'd on other grounds, 174 N.J. 1 (2002).]
Since we conclude plaintiff's hostile work environment claim was properly decided, the wrongful discharge claim must also fail.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION