Opinion
Civ. No. 98-2764 (WGB).
July 28, 2000
Howard M. Davis, P.C., West Orange, N.J., Attorneys for Plaintiff.
Saju C. Mathew, DAG, William O'Connell, DAG, JOHN J. FARMER, JR., ATTORNEY GENERAL OF NEW JERSEY, Trenton, N.J., Attorneys for Defendant New Jersey Department of Corrections.
Robert A. Fagella, Esq., ZAZZALI, ZAZZALI, FAGELLA NOWAK, Newark, N.J., Attorneys for Defendant Lorenzo Herring.
O P I N I O N
Plaintiff Tina Garner ("Plaintiff") alleges that her co- worker Defendant Lorenzo Herring ("Herring") sexually harassed her. Defendant New Jersey Department of Corrections ("DOC") moves for summary judgment pursuant to Fed.R.Civ.P. Rule 56, of this sexual harassment action. Defendant Herring also moves for summary judgment pursuant to Fed.R.Civ.P Rule 56.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 .
The DOC's motion is granted as to Plaintiff's Title VII claim (Count 1). Herring's motion is granted as to Plaintiff's Title VII claim (Count 1) . Defendants' motions with respect to the remaining state law claims are dismissed without prejudice so that Plaintiff may file those claims in state court .
I. BACKGROUND
Plaintiff Tina Garner ("Plaintiff") filed suit on June 12, 1998, alleging that the DOC and Herring (collectively "Defendants") violated Title VII, 42 U.S.C. § 2000, et seq. (Count 1) and the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. ("LAD") (Count 2). In addition, Plaintiff asserts against the DOC and Herring, violation of the duty of good faith and fair dealing (Count 3) and intentional infliction of emotional distress (Count 4). Finally, Plaintiff also seeks damages from Herring for assault and battery (Count 5).
A. Facts
Plaintiff worked as a communications operator at the DOC's Northern State Prison ("NSP"). Defendant Herring was a senior corrections officer and one of Plaintiff's co-workers. Herring exercised no supervisory control over Plaintiff.
Plaintiff alleges that on October 18, 1997, while she was sitting at a desk in the operations room at the Administration Building, Herring placed his left hand into the back of Plaintiff's pants and touched her buttocks with his fingers. In response, Plaintiff states that she brushed Herrings' hands away and yelled at him. As Herring proceeded to walk away, Plaintiff continued to yell at Herring. Herring walked back to the area where Plaintiff was sitting and attempted to kiss her.
Upon the advice of another co-worker, Plaintiff wrote an incident report. She also went to her immediate supervisor, Operations Lieutenant Robert Idelett ("Idelett"), to report this incident. After Plaintiff informed Idelett of what had occurred and provided names of witnesses, she left Idelett's office.
Meanwhile, Idelett paged Herring. Upon stepping out of his office, Idelett saw another co-worker trying to comfort Plaintiff; consequently, he had Plaintiff return to his office. Plaintiff began sobbing and disclosed to Idelett that she had been attacked and almost raped by a patient at her prior place of employment. Idelett tried to calm Plaintiff and told her that he would escort her to the institutional hospital to see a nurse.
A few minutes later when Herring knocked on the door, Idelett did not allow him to enter because Plaintiff was there, and instead, took Herring to another room and confronted him about the incident. Herring denied the accusation and gave his version of what had occurred.
Subsequently, Herring was banned from the operations room and the entire Administration Building where Plaintiff worked pending a formal investigation of the incident. The investigation by NSP's Internal Affairs Unit concluded on November 19, 1997.
On January 15, 1998, Herring was served with a Preliminary Notice of Disciplinary Action and suspended immediately. (See Ex. L attached to Affidavit of Saju C. Mathew ("Mathew Aff.")). Herring appealed those charges. After an appeal hearing on March 30, 1998, a Final Notice of Disciplinary Action was served upon Herring removing him from his position as Senior Corrections Officer effective that day. (See Ex. O attached to Mathew Aff.) Herring than appealed his removal before the Office of Administrative Law ("OAL"). The Administrative Law Judge ("ALJ") sustained the charges against Herring. (See Ex. Q attached to Mathew Aff.) Thereafter, on September 27, 1999, the Merit System Board affirmed the decision of the ALJ. (See Ex. R attached to Mathew Aff.) For the purposes of this motion, the parties do not dispute these general facts.
B. Prior Complaints Against Herring
1. May 4, 1994 Incident
On May 4, 1994, Herring allegedly harassed a male physician at the institution and made inappropriate sexual comments to a female nurse who interceded on the physician's behalf. As a result of that incident, on August 26, 1994, Herring was charged with conduct unbecoming a public employee along with threatening, intimidating, harassing, coercing or interfering with fellow employees on State property. (See Ex. S attached to Mathew Aff.).
After an investigation and a disciplinary hearing were conducted, Herring was suspended without pay for 20 days. Herring appealed that decision to the OAL. On August 6, 1997, the ALJ ordered that because NSP's witness was unwilling and unable to testify, the charge against Herring be dismissed with prejudice. (See Ex. W attached to Mathew Aff.)
2. October 1996 Alleged Harassment
On April 1, 1997, Diane Doran ("Doran"), an Administrative Assistant at the NSP, filed a complaint against Herring with the DOC's Equal Employment Division ("EED"). She claimed that Herring began to sexually harass her in October 1996. After an investigation was conducted, the EED found no probable cause to substantiate Doran's charges of sexual harassment.
II. DISCUSSION
A. The Summary Judgment Standard
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Whether a fact is material is determined by the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue involving a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d Cir. 1988).
The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies this requirement, the burden shifts to the nonmoving party to present evidence that there is a genuine issue for trial. Id. at 324. Once the moving party has carried its burden of establishing the absence of genuine issues of material fact, the nonmoving party "may not rest upon mere allegations or denials" of its pleading, Fed.R.Civ.P. 56(e), but must produce sufficient evidence to reasonably support a jury verdict in its favor, Anderson, 477 U.S. at 249, and not just "some metaphysical doubt as to material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In determining whether any genuine issues of material fact exist, the Court must resolve "all inferences, doubts, and issues of credibility . . . against the moving party." Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983) (citing Smith v. Pittsburgh Gage Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)); accord Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1077 n. 1 (3d Cir. 1996).
Since a motion for summary judgment is designed to go beyond the pleadings, factual specificity is required of a party who opposes such a motion. Celotex, 477 U.S. 317, 322-23 (1986). Accordingly, in order to defeat a properly supported motion for summary judgment, a party may not merely restate the allegations of its pleadings. Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D.Pa. 1988). Moreover, a party cannot rely upon self-serving conclusions, unsupported by specific facts in the record. Celotex, 477 U.S. at 322-23. A non-moving party must point to concrete evidence in the record which supports each essential element of its case. Id. If the party fails to provide such evidence, then it is not entitled to a trial and the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(e).
In deciding a summary judgment motion, however, the Court's role is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 248. If the party opposing summary judgment has exceeded the "mere scintilla" threshold and has offered a genuine issue of material fact, then the Court cannot credit the movant's version of events, even if the quantity of the movant's evidence far outweighs that of its opponent. Big Apple BMW v. BMW of N. Am., 974 F.2d 1358, 1363 (3d Cir. 1992).
B. DOC's Motion For Summary Judgment
1. Vicarious Liability Under Title VII
The DOC moves for summary judgment contending in part, that it is not vicariously liable for the acts of Herring because Herring was merely a co-employee without any supervisory or managerial authority over Plaintiff.
Although the DOC may be correct that as an employer, it is notvicariously liable for Herring's conduct, it may, however, be liable for acts of sexual harassment in the workplace between co-workers if it "(or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action." 29 C.F.R. § 1604.11(d); see Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464-65 (7th Cir. 1990) (recognizing that negligence standard governing employer liability for harassing acts of co-worker has been mislabeled as respondeat superior liability).
In determining whether a plaintiff has adequately demonstrated a hostile or abusive working environment, the court must examine the totality of the circumstances. Harris v. Forklift Sys., Inc . , 510 U.S. 17, 23 (1993). These circumstances may include: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Ibid .
Although not specifically argued by counsel, the Court notes that Plaintiff's claims of sexual harassment based on a single incident may not be sufficient to constitute a claim of hostile work environment. See Drinkwater v. Union Carbide Corp . , 904 F.2d 853, 863 (3d Cir. 1990) (holding that to support a hostile environment claim because such claims "must demonstrate a continuous period of harassment, and two comments do not create an atmosphere [of hostile work environment]."
Although the EEOC regulation is merely advisory and does not have the force of law, this negligence standard has been adopted by numerous district and appeals courts. Guess, 913 F.2d 463; see also Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983) (citing 29 C.F.R. § 1604.11);Rabidue v. Osceola Refining Co., 805 F.2d 611, 621 (6th Cir. 1986),cert. denied, 481 U.S. 1041 (1987); Barrett v. Omaha Nat'l Bank, 726 F.2d 424, 427 (8th Cir. 1984); Ukarish v. Magensium Elektron, 1983 WL 593, at *9 (D.N.J. March 1, 1983); Reynolds v. Atlantic City Convention Center, 1990 WL 267417, at *16 (D.N.J. May 26, 1990); see also Lehmann v. Toys `R' Us, Inc., 132 N.J. 587, 623 (1993) ("When an employer knows or should know of the harassment and fails to take effective measures to stop it, the employer has joined with the harasser in making the working environment hostile").
Therefore, the fact that the harasser was a co-worker rather than a supervisor does not eliminate the possibility that the DOC may be held directly liable if it knew of Herring's improper conduct and failed to stop it.
2. Direct Liability Under Title VII
a. DOC's Remedial Action
As noted above, an employer is liable for harassment between co-workers if it knew or should have known of the conduct unless the employer took immediate and appropriate corrective action. The DOC argues that it is entitled to summary judgment because it took prompt and effective remedial action in response to Plaintiff's claim of sexual harassment.
Plaintiff counters that the DOC's remedial measures were not effective; she insists that the Court should not focus on what the DOC did in response to the October 18th incident, but rather, the Court should focus on the DOC's failure to control Herring's free access to female staff or otherwise control his behavior in light of Herring's prior history of harassing female co-workers. Even if the Court were to adopt Plaintiff's broad reading of C.F.R. § 1604.11(d), Plaintiff has presented no evidence to support her claim that the DOC should have controlled Herring's behavior or access to all female staff. First, the charges stemming from the May 4, 1994 incident (conduct unbecoming a public employee) were eventually dismissed on appeal because a critical witness could not testify. With respect to the second incident, the EED found no probable cause to substantiate the charges of sexual harassment. An employer cannot be expected to remedy conduct where the charges were dismissed or found to be without probable cause.
After the harassment of Plaintiff on October 18th, the DOC responded by barring Herring's access to places where Plaintiff worked and immediately initiating an investigation. Plaintiff has not disputed or even addressed the adequacy of that response. Therefore, Plaintiff has failed to establish the existence of a genuine issue of material fact regarding whether the DOC took immediate and appropriate corrective action.
b. Constructive Notice
Plaintiff theorizes that the DOC had actual or constructive notice that Herring would harass Plaintiff if it permitted Herring to have access to the female staff or did not otherwise control his behavior. In other words, Plaintiff argues that the DOC was on notice of the likelihood or propensity that Herring would continue to engage in improper harassing behavior. Further, Plaintiff suggests that the DOC's efforts to quickly respond to Plaintiff's allegation of harassment by prohibiting Herring from entering the Administration Building evidences that the DOC realized that its responses to prior complaints against Herring had been inadequate. Plaintiff's contentions are without merit.
Assuming that Plaintiff is correct that constructive notice is sufficient to establish an employer's liability for harassment between co-workers, there is no evidence to support Plaintiff's factual contention that based on Herring's prior conduct, the DOC had any notice, whether actual or constructive, that Herring would harass Plaintiff.
Constructive knowledge is a factor to be considered when determining if, in accordance with agency principles, an employer is vicariously liable for the actions of its supervisors . Andrews v. City of Philadelphia , 895 F.2d 1469, 1486 (3d Cir. 1990).
Initially, as discussed above, the prior charges against Herring would not necessarily have constituted notice because the charges stemming from the May 4, 1994 incident were eventually dismissed; with respect to the second incident, the EED found no probable cause to substantiate the charges of sexual harassment. Under Plaintiff's theory of what constitutes constructive notice, once an employee is disciplined or even investigated for allegations of harassment, an employer would arguably know or should know of any subsequent improper conduct by that employee. This would leave an employer with no option but to terminate an employee after one allegation of harassment regardless of the severity of the conduct for fear that in the future, the employee might again commit an infraction. Given the litigious nature of today's society, it is not unrealistic to assume that then, employers would be subject to suits by the discharged employee for wrongful termination.
Finally, Plaintiff presents no evidence to support her theory that the DOC's efforts to quickly respond to Plaintiff's allegation of harassment by prohibiting Herring from entering the Administration Building was anything other than an attempt to effectuate a speedy remedy pending an investigation into the charges. Moreover, if, as Plaintiff suggests, the DOC's response evidenced a realization that its prior responses to Herring's conduct were inadequate, it would have been more effective for the DOC to restrict Herring's access to all female co-workers, not just Plaintiff.
Therefore, because Plaintiff has not met her burden of establishing that there is genuine issue of material fact with respect to the DOC's constructive notice that Herring would harass Plaintiff or even that the DOC would be liable if it did in fact have notice, summary judgment in favor of the DOC on Plaintiff's Title VII claim is granted.
C. Herring's Motion For Summary Judgment
Herring argues that the Title VII claims against him should be dismissed because there is no individual liability under Title VII. Plaintiff concedes that the Title VII allegations do not apply to Herring. Pl.'s Br. in Opp'n to Def. Herring's Mot. for Summary Judgment, at 2, n. 2. Therefore, Count 1 is dismissed as to Herring.
D. Remaining State Law Claims
Having dismissed Plaintiff's Title VII claims, only state law claims remain against both Defendants: Count 2 — LAD; Count 3 — violation of the duty of good faith and fair dealing; Count 4 — intentional infliction of emotional distress; and Count 5 — assault and battery.
Upon dismissing all the claims over which there is original federal jurisdiction, "[t]he district court may decline to exercise supplemental jurisdiction over a claim." 28 U.S.C. § 1367(c)(3). "This administrative decision is left to the sound discretion of the district court." Annulli v. Panikkar, 200 F.3d 189, 202 (3d Cir. 1999) (holding that district court did not abuse discretion in declining to exercise supplemental jurisdiction because although plaintiff had spent a great deal of time engaged in discovery, plaintiff "knowingly risked dismissal of his pendent claims when they filed suit in federal district court and invoked the Court's discretionary supplemental jurisdiction power").
In fact, the Third Circuit has noted that
where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (emphasis added).
The Court, noting that the parties have not identified any affirmative justification for exercising supplemental jurisdiction over Plaintiff's remaining state law claims, declines to exercise supplemental jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.")
III. CONCLUSION
For the reasons set forth above, the DOC's motion for summary judgment is granted as to Plaintiff's Title VII claim (Count 1). Herring's motion is granted as to Plaintiff's Title VII claim (Count 1) . Defendants' motions with respect to the remaining state law claims are dismissed without prejudice so that Plaintiff may file those claims in state court . An appropriate Order follows.
O R D E R
This matter having come before the Court on Defendant New Jersey Department of Correction's motion for summary judgment pursuant to Fed.R.Civ.P. Rule 56 and Defendant Lorenzo Herring's motion for summary judgment pursuant to Fed.R.Civ.P. Rule 56; and
The Court having considered the submissions of counsel; and
The Court having decided this matter without oral argument pursuant to Fed.R.Civ.P. 78; and
For the reasons stated in the Court's Opinion filed this day; and
For good cause shown;
It is on this ___ day of ___, 2000 hereby ORDERED that DOC's motion for summary judgment is granted as to Plaintiff's Title VII claim (Count 1); and
IT IS FURTHER ORDERED that Herring's motion for summary judgment is granted as to Plaintiff's Title VII claim (Count 1); and
IT IS FURTHER ORDERED that Defendants' motions with respect to the remaining state law claims (counts 2, 3, 4, and 5 against Herring and the Department of Corrections) are dismissed without prejudice so that Plaintiff may file those claims in state court; and
IT IS FURTHER ORDERED that the Clerk of the Court shall close this case .