NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3252-12T1
BRIAN DUNKLEY, APPROVED FOR PUBLICATION Plaintiff-Appellant, September 16, 2014
v. APPELLATE DIVISION
S. CORALUZZO PETROLEUM TRANSPORTERS,
Defendant-Respondent. _______________________________
Argued June 4, 2014 - Decided September 16, 2014
Before Judges Lihotz, Maven and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6863-10.
Richard E. Yaskin argued the cause for appellant (Mr. Yaskin and William Riback, attorneys; Mr. Riback and Alix Schwartz, on the briefs).
Erin L. Peters argued the cause for respondent (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys; Daniel B. McMeen, of counsel and on the brief; Ms. Peters, on the brief).
The opinion of the court was delivered by
LIHOTZ, J.A.D.
Plaintiff Brian Dunkley appeals from an October 12, 2012
order granting defendant S. Coraluzzo Petroleum Transporters summary judgment and dismissing plaintiff's complaint claiming
violations of New Jersey's Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49. Plaintiff's complaint alleged hostile
work environment, constructive discharge, and violation of
public policy. Plaintiff also appeals from an order denying his
motion for reconsideration of the summary judgment dismissal and
a May 23, 2012 order entering a protective order related to a
prior sexual harassment claim filed against defendant.
On appeal, plaintiff challenges the entry of summary
judgment, asserting the judge based his conclusion on erroneous
factual findings and improperly limited necessary discovery.
Viewing the facts in the summary judgment record, in a light
most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995), we conclude plaintiff's
complaints of avoidance by fellow employees after he reported
acts of racial discrimination by a co-worker are insufficient to
support an LAD claim for retaliatory discharge or impose
vicarious liability on the employer. Accordingly, we affirm.
Plaintiff commenced his employment with defendant as an oil
delivery driver on May 4, 2010. Defendant provided plaintiff
with an employee handbook, which contained the rules governing
his employment. Plaintiff also attended two days of in-class
safety training and two weeks of "on-road" on-the-job training.
2 A-3252-12T1 Richard Harrington, another truck driver, was assigned as
plaintiff's on-road trainer. During the training period,
plaintiff accompanied Harrington as he "dr[ove] to a refinery,
g[ot] oil and then [went] on a set route and deliver[ed] the
oil[.]" Harrington also instructed plaintiff regarding "the
actual job," which included "loading and offloading oil or
fuel[.]"
In the course of the two-week training period, Harrington
made numerous race-related comments directed toward plaintiff,
an African-American, or in his presence. On plaintiff's first
day, Harrington stated "I'm from Ohio and you know what
originated there don't you?" When plaintiff replied that he did
not, Harrington stated: "The Klan. The Klan originated there."
Harrington repeated a reference to the Klan on another occasion;
however, he never clarified whether he had an affiliation with
the group.
Harrington also recounted anecdotes insinuating he was tied
to a motorcycle gang. For example, Harrington told plaintiff
his father was a member of a motorcycle gang and recounted an
incident where a
local guy came over to his dad's property and he engaged in an argument with the guy, and the guy said he was going to do something to his father as far as bodily harm. And his father made one phone call to the leader of this motorcycle gang and he
3 A-3252-12T1 came over, got in a tussle with the guy, and the guy was in fear of his life and he had left the premises. And he told [plaintiff] if [h]e or anybody ever had a problem with his family, that they would be taken care of.
Plaintiff believed Harrington was relating these accounts
because he "was trying to, for some reason[,] put fear into me."
Plaintiff also reported statements made by Harrington that
he believed were racially offensive, such as: "Allen Iverson
and his friends are black thugs from a bad neighborhood," which
plaintiff felt stereotyped African-Americans. On another
occasion, Harrington told plaintiff his truck was vandalized
when he stopped at a red light and "[plaintiff's] little
brothers, . . . came out and they paintballed [my] truck[.]"
Harrington also conveyed derogatory comments complaining about
African-American women he saw in a grocery store, stating
how he's tired of the girls with the food stamps in the line, and . . . he started mimicking them[] how they talk. And then he start[ed] saying, "I got my food stamps and I don't care who's waiting in line," this and that, because they were holding up the line of some sort. And then he said to [plaintiff], "You look in their basket, they are eating T-bone steaks and stuff better than I can eat because it's all given to them with the state, food stamps."
When their truck needed repair, Harrington and plaintiff
went to an African-American mechanic. Harrington addressed the
mechanic as he prepared to work on the truck, stating: "I want
4 A-3252-12T1 to — it looks like you're — I want to say the word, but I can't.
. . . I can't say the word. I'll get in trouble. . . ." The
mechanic responded, "I know what you are trying to say. You're
trying to say it looks like I'm nigger rigging." Harrington
agreed that was "what I am trying to say, but I can't say it
because I'll get in trouble."
When plaintiff did not report for work, Elwood Sickler,
defendant's safety coordinator, called to inquire about his
absence. Plaintiff explained "there w[ere] a lot of reasons" he
decided not to come into work. The next day, plaintiff met with
Sickler, Thomas Sprague, defendant's safety director, and Steve
Coen, defendant's regional safety manager. Plaintiff recounted
the incidents with Harrington, using a list he had prepared the
prior evening, explaining these were "things that were bothering
me, why I didn't want to work there[.]"
Following this meeting, plaintiff received a phone call
from Sickler informing him a new trainer, Greg Castellini, was
assigned as his instructor. Plaintiff returned to work
approximately one day later, and never again saw or spoke to
Harrington. Following his reassignment to work with Castellini,
plaintiff suffered no treatment similar to that experienced with
Harrington.
5 A-3252-12T1 However, plaintiff insisted he endured negative
consequences after reporting Harrington's conduct, and these
consequences caused his constructive discharge. He noted his
report was not kept confidential and he felt ostracized by co-
workers, who "would shy away" from him. "The guys that were in
the yard that [he] used to know, they wouldn't even say a word
to [him] after that. And everybody knew [he] was with
[Harrington], and then all of a sudden [there was] a big
change." Further, when plaintiff attempted to speak with
Sickler, he was "advised that because [plaintiff] had brought a
complaint [about] the hostile work environment, [he] was being
outcasted [sic]."
Plaintiff also told Castellini he did not receive proper
training from Harrington; Castellini agreed Harrington had
instructed him incorrectly on a number of protocols. Plaintiff
noted Harrington had not taught him how to operate the truck's
computer, failed to instruct him not to pressurize the truck
after unloading fuel and did not advise him not to take vendors'
keys.
Castellini reported Harrington's lapses to "management."
On the day he learned Castellini had done so, plaintiff was
involved in a gasoline spill.
[E]arlier in the day, [plaintiff] had found out that . . . [Castellini] had told [him] a
6 A-3252-12T1 couple of things that [Harrington] was doing wrong that . . . he was trying to correct . . . ., and then [plaintiff] . . . told [Castellini], . . . "I really didn't want you to tell" — "I really didn't want you to go tell [Sickler] because, you know, I didn't" — "everything is all screwed up here as it is." [Plaintiff was] like, ["Castellini], I'm already in a situation where I don't feel like I am going to get any help from these guys. I feel like I'm a troublemaker, and I just feel like, you know, there's enough stirred up right now. If I tell you what he taught me and how you are teaching me the right way, I mean, I just didn't know you were going to go tell him.["] [Castellini] said "Yeah, I told him." So [plaintiff] said, "That's fine," but [he] was just upset about it.
Plaintiff maintained the spill occurred because he
wasn't paying attention to something that was very stupid. So [he] said if [he] could do that, [he was] going to harm [him]self, blow something up or have a bad spill, and [he] just was so frustrated with [him]self and mad at [him]self about the spill, but it was because [he] wasn't concentrating because all this stuff was in [his] mind and bothering [him].
Plaintiff insisted he was uncomfortable at work and "felt
like [his] life was threatened" because he was not sure whether
Harrington was affiliated with a motorcycle gang or "the Klan,"
or whether these groups "had chapters around Vineland[,]" where
defendant was located, as he knew "Vineland had had a Klan
meeting [at a nearby park] when [he] was younger . . . ." As a
result, plaintiff remained concerned for his and his family's
7 A-3252-12T1 safety. The immense daily stress made plaintiff "hate being
there [at work] at that time." Following the spill, plaintiff
resigned.
Plaintiff filed a complaint against defendant and unnamed
John Does 1-10, claiming violations of the LAD, alleging
defendant allowed conduct amounting to a hostile work
environment (counts one and two), which caused his constructive
discharge (count three), and violated public policy (count
four). Plaintiff amended his complaint to add a claim for
violating the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -8 (count five).
Approximately one month before trial, defendant moved for
summary judgment. Plaintiff filed a cross-motion to strike
defendant's motion for summary judgment. After considering oral
argument and the record evidence, the judge granted defendant's
motion, denied plaintiff's cross-motion, and dismissed the
complaint. Plaintiff's request for reconsideration was
similarly denied. This appeal ensued.
Prior to reviewing the issues presented on appeal, we
recite the principles guiding our review. When reviewing a
grant of summary judgment, we employ the same standards used by
the motion judge, found in Rule 4:46. Gormley v. Wood-El, 218
N.J. 72, 86 (2014). We determine whether the moving party has
8 A-3252-12T1 demonstrated there were no genuine disputes as to material
facts, and then we decide whether the motion judge's application
of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling
Co., 387 N.J. Super. 224, 230-31 (App. Div. 2006), certif.
denied, 189 N.J. 104 (2006). Specifically, we "consider 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." Brill, supra, 142 N.J.
at 540. "[W]hen the evidence is so one-sided that one party
must prevail as a matter of law, the trial court should not
hesitate to grant summary judgment." Ibid. (citation and
internal quotation marks omitted).
However, we accord no deference to the motion judge's
conclusions on issues of law, Estate of Hanges v. Metro. Prop. &
Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which
we review de novo. W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012)
(stating if no genuine factual dispute exists, we must decide
whether the trial court's ruling on the law, to which we owe no
deference, was correct).
On appeal, plaintiff maintains the judge correctly
determined he presented a prima facie case of harassment, but
9 A-3252-12T1 erred in dismissing the action, after finding Harrington was not
plaintiff's supervisor and concluding defendant was not
vicariously liable for Harrington's actionable conduct.
Plaintiff argues defendant failed to take proper steps to curb
discriminatory conduct because defendant's anti-harassment
policy lacked structure and monitoring mechanisms; defendant did
not train its supervisors and employees regarding the anti-
harassment and anti-retaliation policies; and plaintiff's
complaints were not effectively addressed as defendant's upper
management did not show "an unequivocal commitment" to assure
"harassment would not be tolerated."
The LAD is remedial legislation designed "to root out the
cancer of discrimination[.]" Cicchetti v. Morris Cnty.
Sherriff's Office, 194 N.J. 563, 588 (2008) (citing Fuchilla v.
Layman, 109 N.J. 319, 334, cert. denied, 488 U.S. 826, 109 S.
Ct. 75, 102 L. Ed. 2d 51 (1988)). The statute prohibits
unlawful employment practices and discrimination in the form of
harassment, "based on race, religion, sex, or other protected
status, that creates a hostile work environment." Cutler v.
Dorn, 196 N.J. 419, 430 (2008) (citing Lehmann v. Toys 'R' Us,
Inc., 132 N.J. 587, 601 (1993)). See N.J.S.A. 10:5-12(a).
Further, it prohibits reprisals against an employee who asserts
rights granted by the LAD. N.J.S.A. 10:5-12(d).
10 A-3252-12T1 To establish a cause of action under the LAD based on a hostile work environment, plaintiffs must satisfy each part of a four- part test. Specifically, they must show that the complained-of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive. Within that framework, a court cannot determine what is "severe or pervasive" conduct without considering whether a reasonable person would believe that the conditions of employment have been altered and that the working environment is hostile. Thus, the second, third, and fourth prongs are, to some degree, interdependent.
[Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002) (citations omitted).]
In the context of race discrimination, the first element
requires a plaintiff to show harassment occurred because of his
or her race. Lehmann, supra, 132 N.J. at 603. The second
element assesses "'[t]he required showing of severity or
seriousness of the harassing conduct varies inversely with the
pervasiveness or frequency of the conduct.'" Id. at 607
(quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)).
Usually, repeated incidents are required. However, even a
single severe incident may create a hostile work environment in
certain circumstances. Taylor v. Metzger, 152 N.J. 490, 500-02
(1998). See also Cutler, supra, 196 N.J. at 430, 432 n.7
11 A-3252-12T1 (applying same principles to a hostile work environment claim
involving religious affiliation).
When considering a claim of hostile work environment under
the LAD, the test is fact sensitive and the court must review
the totality of circumstances presented. El-Sioufi v. St.
Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005).
The inquiry is whether a reasonable person in plaintiff's
protected class would consider the alleged discriminatory
conduct "'to be sufficiently severe or pervasive to alter the
conditions of employment and create an intimidating, hostile or
offensive working environment.'" Ibid. (quoting Heitzman v.
Monmouth Cnty., 321 N.J. Super. 133, 147 (App. Div. 1999),
overruled on other grounds by Cutler, supra, 196 N.J. at 440).
The court weighs the "severity and pervasiveness by considering
the conduct itself rather than the effect of the conduct on any
particular plaintiff." Id. at 178-79. The factors evaluated
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.'" Shepherd,
supra, 174 N.J. at 19-20 (quoting Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d
106, 124 (2002)).
12 A-3252-12T1 To prove "a prima facie case of retaliation, plaintiff must
show that 1) [he or] she was engaged in a protected activity
known to defendant; 2) [he or] she was thereafter subjected to
an adverse employment decision by the defendant; and 3) there
was a causal link between the two." Woods-Pirozzi v. Nabisco
Foods, 290 N.J. Super. 252, 274 (App. Div. l996) (citation
omitted). See also Craig v. Suburban Cablevision, Inc., 140
N.J. 623, 629-30 (1995). Once a plaintiff establishes a prima
facie case of retaliation, the burden of production shifts to
the defendant to articulate a "legitimate[,] non-retaliatory
reason" for the decision. Jamison v. Rockaway Twp. Bd. of
Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). If defendant
satisfies this burden, the plaintiff must then demonstrate that
a retaliatory intent, not the employer's stated reason,
motivated the employer's action, proving the employer's
articulated reason was merely a pretext for discrimination.
Woods, supra, 290 N.J. Super. at 274; Jamison, supra, 242 N.J.
Super. at 445.
"[A] person engages in a protected activity under the LAD
when that person opposes any practice rendered unlawful under
the LAD." Young v. Hobart W. Grp., 385 N.J. Super. 448, 466
(App. Div. 2005). See also Jamison, supra, 242 N.J. Super. at
445 ("Such an unlawful employment practice occurs when an
13 A-3252-12T1 employer, or an employee, for any reason, takes reprisal against
another employee because the latter has challenged any practices
or acts forbidden by the LAD.") (citing N.J.S.A. 10:5-12(d)).
As a starting point, protected activity, if involving a
complaint, must concern discrimination. Reyes v. McDonald
Pontiac-GMC Truck, Inc., 997 F. Supp. 614, 619 (D.N.J. l998)
(finding complaints stemming from "outbursts and name-calling"
not sexual in nature do not suffice). "A general complaint of
unfair treatment" does not suffice. Barber v. CSX Distrib.
Servs., 68 F.3d 694, 702 (3d Cir. l995) (finding a letter to the
employer expressing dissatisfaction over someone else receiving
a promotion is not protected activity because it did not allege
age discrimination).1
In Lehmann, the Court held an "employer should be liable
for punitive damages [under the LAD] only in the event of actual
participation by upper management or willful indifference."
Lehmann, supra, 132 N.J. at 625. This principle was reinforced
1 This case construed the retaliation provision of the federal Age Discrimination in Employment Act, 29 U.S.C.A. § 623(d); however, the wording is substantially the same as the LAD provision under review. New Jersey courts generally look to federal anti-discrimination jurisprudence in construing the LAD because LAD "standards have been influenced markedly by the experience derived from litigation under federal anti- discrimination statutes." Shaner v. Horizon Bancorp, 116 N.J. 433, 437 (l989). See also Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 370 (2007).
14 A-3252-12T1 in Taylor as "the Court noted that '[a] supervisor has a unique
role in shaping the work environment. Part of a supervisor's
responsibilities is the duty to prevent, avoid, and rectify
invidious harassment in the workplace.'" Cavuoti v. N.J.
Transit Corp., 161 N.J. 107, 118 (1999) (quoting Taylor, supra,
152 N.J. at 503).
Omissions may also suffice as "an employer that failed to
take effective remedial measures against a harassing employee
was, in essence, liable for its own conduct." Payton v. N.J.
Turnpike Auth., 148 N.J. 524, 536 (1997) (citation omitted).
This results because "[w]hen 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." Ibid. (citation omitted).
Here, the motion judge agreed plaintiff presented a prima
facie case of hostile work environment, stating:
After viewing the evidence in a light most favorable to [p]laintiff, this [c]ourt is satisfied . . . given the severity and pervasiveness of Mr. Harrington's conduct, reasonable minds could differ as to whether [p]laintiff suffered a hostile work environment. The conduct [p]laintiff complains of consisted of several racially discriminatory remarks regarding African Americans over the course of two weeks. This was not an isolated instance but rather a series of conduct that persisted until [p]laintiff complained to [d]efendant's managerial employees.
15 A-3252-12T1 Notwithstanding this showing, the judge concluded plaintiff had
not sustained his burden to prove defendant was vicariously
liable for Harrington's conduct because he could not demonstrate
defendant's supervisors knew about and ignored, participated in
or failed to take action to prevent such harassing conduct. See
Tyson v. CIGNA Corp., 918 F. Supp. 836, 840-41 (D.N.J. 1996),
aff'd, 149 F.3d 1165 (3d Cir. 1998); Shepherd, supra, 174 N.J.
at 26-27.
Plaintiff disagrees. First, he maintains Harrington was
his supervisor, making defendant vicariously liable for his
discriminatory conduct. Second, he believes proofs evinced
defendant ignored or otherwise failed to address the existing
discrimination. Plaintiff hinges support on the absence of a
formal investigation of the incidents he related, noting
Sickler, Sprague and Coen did not report his allegations to
Human Resources or senior management, such as defendant's
president, owners or vice president of operations. Also,
plaintiff asserts Sickler and Sprague had no specific training
regarding how to stop discriminatory conduct, and no adverse
action was taken against Harrington.
Whether Harrington could be deemed plaintiff's supervisor
during the two-week training period is debatable. Although
Harrington had no power to fire or demote plaintiff and he could
16 A-3252-12T1 not alter his position or compensation, he was charged with
plaintiff's on-road training, during which he directed plaintiff
and identified plaintiff's job responsibilities. There were
instances when comments by Harrington to Sickler caused Sickler
to speak to plaintiff. If the determination of Harrington's
supervisory status was the only test to impose vicarious
liability upon defendant, summary judgment would have been
prematurely granted. However, Lehmann and its progeny make
clear vicarious liability is dependent upon additional facts.
An employer's vicarious liability for the conduct of a
supervisor occurs "'if the employer negligently or recklessly
failed to have an explicit policy that bans . . . harassment and
that provides an effective procedure for the prompt
investigation and remediation for such claims.'" Toto v.
Princeton Twp., 404 N.J. Super. 604, 616 (App. Div. 2009)
(quoting Cicchetti, supra, 194 N.J. at 591). See also Lehmann,
supra, 132 N.J. at 621 (stating that to impute liability to a
defendant-employer for acts of its employees, "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 mechanism structures,
training, and/or monitoring mechanisms.").
17 A-3252-12T1 Here, defendant produced its employee handbook, enacted on
March 1, 2010, which contained a directed policy prohibiting
harassment and discrimination. Defendant demonstrated it
provided the handbook to each employee, and employees are
directed to read the handbook "completely and become familiar
with all the policies and the information that is provided."
Relevant to this matter, the employee handbook provided:
The [e]mployer will not tolerate any type of harassment of employees, applicants for employment, or customers. Discriminatory conduct or conduct characterized as harassment as defined below is prohibited.
The term harassment includes, but is not limited to, slurs, jokes, and other verbal or physical conduct relating to a person's gender (including pregnancy), race, color, religion, national origin, age, disability, military status, creed, ancestry or any other protected category under federal, state or local law that unreasonably interferes with a person's work performance or creates an intimidating, hostile work environment.
The handbook described the complaint procedure and
investigation process as follows:
Any employee who has a concern regarding harassment or discrimination must report the matter to their manager. If that person is not available, or you believe it would be inappropriate to contact that person, contact the Human Resources Department.
The [e]mployer will conduct a prompt investigation as confidential as possible
18 A-3252-12T1 under the circumstances. Employees who raise concerns and make reports in good faith can do so without fear of reprisal; at the same time, employees have an obligation to cooperate with the [e]mployer in enforcing this policy and investigating and remedying complaints.
Any employee who becomes aware of possible . . . illegal discrimination against others must promptly advise their manager or the Human Resources Department.
Anyone found to have engaged in such wrongful behavior will be subject to appropriate discipline, up to and including termination.
Also, there was an express anti-retaliation policy:
Any employee who files a complaint of sexual harassment or other discrimination in good faith will not be adversely affected in terms and conditions of employment and will not be retaliated against or discharged because of the complaint.
In addition, we will not tolerate retaliation against any employee who, in good faith, cooperates in the investigation of a complaint. Anyone who engaged in such retaliatory behavior will be subject to appropriate discipline, up to and including termination.
"[T]he existence of effective preventative mechanisms
provides some evidence of due care on the part of the employer."
Lehmann, supra, 132 N.J. at 621. Moreover, "the absence of such
mechanisms" does not "automatically constitute[] negligence, nor
[does] the presence of such mechanisms demonstrate[] the absence
of negligence." Ibid.
19 A-3252-12T1 Employers that effectively and sincerely put five elements into place are successful at surfacing . . . harassment complaints early, before they escalate. The five elements are: policies, complaint structures, and that includes both formal and informal structures; training, which has to be mandatory for supervisors and managers and needs to be offered for all members of the organization; some effective sensing or monitoring mechanisms, to find out if the policies and complaint structures are trusted; and then, finally, an unequivocal commitment from the top that is not just in words but backed up by consistent practice.
[Ibid. (citations omitted).]
We conclude the trial judge properly analyzed the evidence,
which showed defendant adopted a formal anti-harassment and an
anti-discrimination policy and developed a complaint procedure
and investigation process. Plaintiff, as well as all other
employees hired by defendant, received and acknowledged reading
the handbook. Further, plaintiff admitted these policies were
discussed during his initial two-day in-class training. No
evidence suggests plaintiff was unable to voice his complaints
or that they went unaddressed because of an ineffective policy.
Here, despite knowing the procedures, plaintiff simply failed to
follow them.
Contrary to plaintiff's assertion, we find defendant's
policies were properly defined. When management learned of the
problem, plaintiff's supervisors did not ignore his complaints
20 A-3252-12T1 or overlook Harrington's reprehensible behavior. Rather,
Sickler's proactive conduct discovered the problem. He
immediately arranged a private meeting between plaintiff and
other supervisors to review plaintiff's experiences. Upon
gathering the facts from plaintiff, the supervisors acted to
protect plaintiff from further discrimination.
In hindsight, unquestionably, one could suggest improvement
in the depth of the process or the supervisors' training on
these issues. Further, publicizing the Human Resources or other
officer charged with enforcing the procedures is preferable.
However, we cannot conclude the methods used here fail to meet
established standards. More important, plaintiff's own report
that after meeting with his supervisors, he did not experience
any further discriminatory harassment and suffered no change in
his position, duties or compensation, demonstrated the policy's
effectiveness.
We also conclude plaintiff's perceived ostracism by co-
workers fails to support his claim of hostile work environment.
See Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 382-
83 (Law Div. 2002) ("The fact that [the plaintiff's] co-workers
and superiors chose to limit their contact with [him] to
business only and otherwise ignored [him], stared/glared at
[him] when they walked by [him], and, even as plaintiff
21 A-3252-12T1 believed — talked about [him] behind closed doors," fails to
create a hostile work environment.), aff'd 362 N.J. Super. 245,
246-47 (App. Div.), certif. denied, 178 N.J. 32 (2003). The
Supreme Court has explained, the LAD does not create a "sort of
civility code for the workplace[.]" Battaglia v. United Parcel
Serv., Inc., 214 N.J. 518, 549 (2013). Rather, it advances
"[f]reedom from discrimination." Id. at 546. Employee
discourtesy and rudeness should not be confused with employee
harassment. Further, an "unhappy" workplace does not equate to
a hostile work environment under the LAD.
Following our review of the record, we determine the
evidence shows the employer followed the steps outlined in
Lehmann by adopting policies, offering a complaint procedure,
providing on-going training, and addressing discrimination once
presented. The summary judgment record does not create a
dispute of material facts, as no conflicting evidence was
offered to refute these proofs. The judge's conclusion that
defendant was not vicariously liable for Harrington's conduct
was a correct one.
Plaintiff next argues a reasonable jury could conclude he
was constructively discharged because he endured "severe and
pervasive" harassment, which negatively impacted his work
performance and, in turn, adversely affected "public safety."
22 A-3252-12T1 Essentially, he calls into question the effectiveness of
defendant's policy. We are not persuaded.
"'[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.'" Zubrycky v. ASA Apple, Inc., 381 N.J. Super.
162, 166 (App. Div. 2005) (quoting Shepherd, supra, 174 N.J. at
28). The level of proof requires a showing of "egregious
circumstances," which is even greater "than that required to
establish a hostile work environment[.]" Ibid. The proofs must
show "outrageous, coercive and unconscionable" acts. Ibid.
(citing Shepherd, supra, 174 N.J. at 28).
As discussed above, plaintiff's assertions are insufficient
to support a suggestion that despite his complaints, defendant
failed to exercise due care to enforce its anti-harassment
policy. See Gaines v. Bellino, 173 N.J. 301, 303 (2002) ("The
establishment of an effective anti-sexual harassment workplace
policy and complaint mechanism evidences an employer's due care and
may provide affirmative protection from vicarious liability.").
Rather, plaintiff admitted once he informed his superiors, they
took action, assigned him a new trainer and, thereafter, he
experienced no problems. He further admits he never interacted
with Harrington again. Plaintiff's proofs do not present a
23 A-3252-12T1 genuine factual dispute allowing a jury to reasonably conclude
defendant's responsiveness and other conduct was so unbearable
that a reasonable person would be forced to separate from the
employment because of the conduct. Shepherd, supra, 174 N.J. at
27-29. See also Woods, supra, 290 N.J. Super. at 276. Here,
the harm was remedied immediately and effectively.
We also reject as unfounded plaintiff's claims he was
improperly trained in safety measures. Plaintiff acknowledged
Castellini instructed him on correct procedures. During
plaintiff's training with Castellini, it was discovered that
Harrington taught plaintiff incorrectly; these matters were
addressed and Castellini informed Sickler of Harrington's
errors.
Plaintiff's final challenge argues the judge erroneously
barred disclosure of an unrelated 2008 sexual harassment
complaint against one of defendant's "upper management" members.
Plaintiff asserts this shows upper management's tolerance of
harassment. We find this argument lacks sufficient merit to
warrant review and discussion in our written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
24 A-3252-12T1