NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2963-22
DANIELA BURGA,
Plaintiff-Appellant,
v.
UNIFIRST CORP., VICTOR GOMEZ, JOHN WALKER, REIS LAMONTAGNE, JUSTIN EXLINE, and VICTORIA PANARESE,
Defendants-Respondents. ________________________________
Argued September 11, 2024 – Decided August 18, 2025
Before Judges Mayer, DeAlmeida, and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1567-20.
Mark R. Scirocco argued the cause for appellant (Scirocco Law, PC, attorneys; Robert A. Scirocco, of counsel; Mark R. Scirocco and Stephen T. Scirocco, on the briefs).
Thomas J. Rattay argued the cause for respondents UniFirst Corporation, John Walker, Reis Lamontagne, Justin Exline, and Victoria Panarese (Ogletree, Deakins, Nash, Smoak & Stewart, PC, attorneys; Thomas J. Rattay and Justine L. Abrams, on the brief).
James M. McCreedy argued the cause for respondent Victor Gomez (Wiley, Malehorn, Sirota & Raynes, attorneys; James M. McCreedy, of counsel and on the brief; Carolyn C. Duff, on the brief).
PER CURIAM
Plaintiff Daniela Burga appeals from two Law Division orders granting
summary judgment to defendants and dismissing her amended complaint
alleging hostile work environment and constructive discharge claims pursuant
to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We reverse.
I.
The following facts were alleged in the amended complaint or are derived
from the summary judgment record, as viewed in the light most favorable to
plaintiff. Defendant UniFirst Corporation (UniFirst) was a workwear service
company that provided uniforms, protective clothing, and corporate apparel to
businesses. Defendant John Walker was the general manager of UniFirst's
Whippany office. Defendant Justin Exline was the senior manager of employee
relations and human resources (HR) compliance at UniFirst's corporate
headquarters in Boston. Exline's responsibilities included managing UniFirst's
employee relations team and HR compliance team. Defendant Victoria Panarese
A-2963-22 2 was an HR manager for UniFirst, whose responsibilities included investigating
employee complaints. Defendant Reis LaMontagne was a regional vice
president of UniFirst. We refer to these defendants collectively as the UniFirst
Defendants.
UniFirst had a written anti-harassment policy which stated "[i]t is the
Company's policy to provide and maintain a workplace that is free of sexual
harassment." The policy defined harassment as "any verbal or physical conduct
designed to threaten, intimidate, or coerce a Team Partner [or] co-worker,"
including verbal and non-verbal harassment. The policy included a section
specific to sexual harassment, and identified examples of sexual harassment,
including "[u]nwelcome sexual advances, flirtations, advances, leering," and
"obscene or vulgar gestures."
Defendant Victor Gomez worked at UniFirst from 2011 to 2022. In 2019,
Gomez was a route service manager (RSM). As RSM, Gomez's functions related
to customer service, including managing the service department and accounts
receivable, which collected payments from customers. While employed at
UniFirst, Gomez annually completed the company's online anti-harassment
training.
A-2963-22 3 Gomez was the subject of a 2019 internal sexual harassment complaint by
a female employee, N.R. 1 In March 2019, N.R. reported Gomez held closed-
door meetings with her, made sexually inappropriate statements, and took
photographs of her without her consent. As a result of N.R.'s complaint,
UniFirst conducted an investigation and found Gomez took "pictures of [N.R.],
ask[ed] if [she] was single, [was] flirtatious, call[ed] [N.R.'s] cell[phone] after
hours, said he couldn't keep [his] hands off her[, and put his] hands on her back."
The investigation also confirmed Gomez had closed-door meetings with N.R.
Gomez was suspended without pay for three days during UniFirst's
investigation. After the investigation, UniFirst issued a letter to Gomez, stating
his behavior was "concerning," and the company would not tolerate his "lack of
judgment." The letter informed Gomez:
[Y]our repeated calls and texts to [N.R. were] unnecessary and will not be permitted going forward. You are not [N.R.'s] direct manager, so there is no reason for you to be contacting her via phone calls and texts. Also, your decision to have closed[-]door meetings with [N.R.] had created a perception of inappropriateness. . . . Going forward, you will not be permitted to have direct contact with [N.R.].
1 We use initials to protect N.R.'s privacy. A-2963-22 4 On March 25, 2019, plaintiff began working at UniFirst as a customer
service representative (CSR). Her role as a CSR was to "[u]tilize[] customer
service systems to build lasting relationships and ensure the highest levels of
customer satisfaction." Plaintiff also was tasked with facilitating payment
collections from customers in the accounts receivable department. To fulfill her
responsibilities, plaintiff had to develop strong relationships with the customers
assigned to her.
Plaintiff was assigned routes which were composed of individual
customers. Each route was managed by a specific RSM, who was responsible
for supervising the CSRs' accounts receivable functions. To this end, there were
mandatory weekly meetings between all RSMs and CSRs at the Whippany
office. When plaintiff started at UniFirst, she was assigned six routes, four of
which were managed by Gomez.
Plaintiff was a native Peruvian who immigrated to the United States as a
teenager and spoke fluent Spanish. Among the routes to which she was
assigned, many customers also spoke Spanish and plaintiff communicated with
them exclusively in Spanish. Over time, plaintiff developed good customer
relationships with those assigned to her routes, which facilitated her ability to
collect payments on time.
A-2963-22 5 As the RSM in charge of four of plaintiff's routes, Gomez oversaw and
directed plaintiff's work. He was in regular contact with plaintiff, often in one-
on-one meetings. In those meetings, Gomez often called plaintiff to his office
and closed the office door. He also frequently communicated with plaintiff by
cellphone and text messages.
On several occasions, Gomez praised plaintiff for her customer service
work, including her effectiveness in collecting payments from customers. In
January 2020, Gomez informed plaintiff that, due to his status as a manager, he
could advocate on her behalf during her annual review. He told plaintiff he
could help get her a raise because he had a good relationship with Walker.
In December 2019, Gomez told plaintiff how attractive she was and asked
to take her photograph. Over the next several weeks, Gomez continued to make
similar comments and requests. Plaintiff refused every of Gomez's requests to
take her photograph. Typically, Gomez made the flirtatious comments during
one-on-one meetings in his office with the door closed. From December 2019
to February 2020, Gomez took numerous photographs of plaintiff during work,
an action unrelated to legitimate employment objectives.
During that time, plaintiff was aware of Gomez's history of sexual
harassment of N.R. She testified "the whole office" knew about Gomez's prior
A-2963-22 6 inappropriate conduct and "everybody was talking about it." Plaintiff also knew
that because of N.R.'s complaint, Gomez "was gone for three days," and N.R.
ultimately left UniFirst because of Gomez.
In early February 2020, plaintiff attended a mandatory weekly group
meeting that included Gomez. Two other CSRs, Crystal Marotta and Giuseppe
Pistoia, and the office administrator, Christina Semar, were present. During the
meeting, Gomez made an obscene gesture while looking directly at plaintiff. He
placed two fingers around his mouth in the shape of a "V" and stuck his tongue
out. Plaintiff understood the gesture as imitative of oral sex on female genitalia,
and believed it was directed toward her.
On February 28, 2020, Gomez approached plaintiff while she was seated
at her workstation and requested to take a photo of her. She denied his request.
Gomez proceeded to take the photograph anyway.
On March 2, 2020, plaintiff complained to Semar about Gomez's sexual
harassment, which she could no longer tolerate. That day, she received a call
from Panarese, who was assigned to investigate the conduct. Although UniFirst
had a sexual harassment policy and investigative guidelines, Panarese had not
seen them. UniFirst suspended Gomez during Panarese's investigation.
A-2963-22 7 Plaintiff recounted Gomez's sexual harassment to Panarese. Panarese also
contacted Pistoia and Marotta, who confirmed plaintiff's account of Gomez's
lewd gesture at the meeting. Panarese interviewed Gomez, who denied imitating
oral sex during the meeting. According to Panarese's notes, Gomez said "oh
wow. Definitely not . . . Would never do that . . . That's ridiculous . . . Would
never do anything like that . . . [My t]ongue would never do that in a professional
service." He admitted taking photographs of plaintiff, but said he did not do so
over her objections.
Panarese found, despite his categorical denials, Gomez made the lewd
gesture and took photos of plaintiff without her consent. At her deposition,
Panarese testified she found plaintiff's account of what transpired with Gomez
credible and corroborated by independent witnesses.
On March 5, 2020, after Panarese's investigation, UniFirst's management
team convened a meeting at the Boston headquarters. Walker, Exline,
LaMontagne, and Panarese were present. The group discussed Panarese's
investigative findings and determined what actions would be taken.
UniFirst considered the three days Gomez was suspended without pay
during the investigation to be an appropriate sanction and required him to retake
the anti-harassment training course given annually to all employees. Finally,
A-2963-22 8 UniFirst issued Gomez a "Final Letter of Understanding." The letter stated the
investigation corroborated plaintiff's complaints Gomez made a lewd gesture at
the meeting and took her photograph without consent. Although the letter noted
Gomez had been suspended during the investigation it did not state the
suspension was considered a sanction. The letter stated if Gomez was again
found to have engaged in inappropriate conduct he would face progressive
discipline up to and including termination.
UniFirst did not inform plaintiff of the outcome of the investigation.
Apart from her interview with Panarese, plaintiff received no information from
UniFirst about her complaint.
On March 6, 2020, plaintiff saw Gomez and Walker walking arm-in-arm
and smiling at each other at the Whippany office. Plaintiff contacted Panarese
by telephone to ask about the status of her complaint. Panarese told plaintiff a
final decision had been made by UniFirst, Walker would be handling the matter,
and he would be in touch with plaintiff later that day. Plaintiff, concerned about
these developments, decided to record any conversation she had with Walker
regarding her complaint.
Later that day, Walker called plaintiff into his office and, in an abrupt
manner, asked her "what's up?" Plaintiff voiced her concern that no one from
A-2963-22 9 UniFirst had communicated with her regarding the status of her complaint.
Walker replied in a confrontational tone, "I was not about to call you ," told her
the complaint had been taken care of "internally," and said, "I think that should
be good." Walker stated Gomez was suspended for three days and was on a
"final written warning." When plaintiff asked Walker to clarify the effect of
Gomez's punishment, he told her Gomez would be terminated if he "fucks up
again." Walker informed plaintiff he did not "know the whole story," and
rhetorically asked, "do I want to know the whole story?"
Plaintiff expressed her concern that the three-day suspension, which at
that point had expired, was inadequate. She asked Walker, "how many . . . fuck
ups do you guys need? I know [Gomez] has a whole history." Walker became
indignant and advised plaintiff Gomez's history of sexual harassment should not
have come up in her discussions with HR. Walker stated his intention was to
"look out" for UniFirst's interests.
Plaintiff told Walker she did not want to be in the same room as Gomez
in the future. She explained at her deposition she was concerned Gomez's
behavior would continue and he would retaliate against her. Walker ignored
plaintiff's statement. He told her she would be involuntarily transferred from
the accounts for which Gomez was her supervisor and assigned to new accounts.
A-2963-22 10 Interpreting such action as punishment, plaintiff asked why she, as opposed to
Gomez, was being penalized and losing a client base she took a year to develop.
Walker's response was to rhetorically ask, "yeah. So what, would we change
routes the other way [and reassign Gomez]?" Plaintiff asked Walker, "what if
I'm not okay with the decision?" Walker responded, "it is what it is."
Believing UniFirst was not going to protect her from future harassment or
retaliation, plaintiff resigned. She testified, "I expressed my concerns numerous
times to Walker, and he just shut me down, so how do I know that if [Gomez]
retaliates [Walker's] not going to do the same thing? . . . That's why I left."
On August 3, 2020, plaintiff filed a complaint against defendants in the
Law Division alleging claims of hostile work environment and constructive
discharge pursuant to the LAD. After the matter was removed to the United
States District Court and remanded back to the Law Division, plaintiff filed an
amended complaint clarifying her aiding and abetting allegations as to the
individual supervisor defendants.
Discovery revealed Gomez's 2020 performance review, which would have
documented the investigation relating to plaintiff's complaint and UniFirst's
response, was missing from his personnel file. Plaintiff's 2020 performance
review was in her personnel file.
A-2963-22 11 After discovery, defendants filed two summary judgment motions. The
first was filed by the UniFirst Defendants. They argued a jury could not find
them liable for plaintiff's claims because Gomez was not plaintiff's supervisor,
UniFirst maintained an effective anti-harassment policy, and the company took
appropriate remedial action to address plaintiff's complaints. In addition, the
UniFirst Defendants argued there was no constructive discharge because
plaintiff voluntarily left her employment immediately after she was informed of
the company's response to her complaint.
The second motion was filed by Gomez. In addition to aligning himself
with the UniFirst Defendants' arguments, Gomez argued he did not bear
individual liability for plaintiff's claims because under the LAD he cannot aid
and abet his own conduct.
Plaintiff opposed both motions. She argued Gomez was her supervisor
and UniFirst was liable for the hostile work environment he created. She argued
that the effectiveness of UniFirst's anti-harassment policy was subject to
reasonable dispute, particularly in light of Gomez's status as a credibly accused
and repeat sexual harasser. Plaintiff also argued UniFirst's response to her
complaint was not effective and her only reasonable option was to resign.
Finally, plaintiff argued the supervisors, including Gomez, aided and abetted the
A-2963-22 12 hostile work environment and thus bore individual liability under the LAD. In
addition, plaintiff argued the absence of a record of the investigation, its
findings, and the sanction imposed on Gomez was evidence UniFirst did not
effectively enforce its anti-harassment policy.
In opposition to the motions, plaintiff relied in part on an expert report
drafted by a proposed expert in HR training and investigations. The expert
opined that: (1) UniFirst "deliberately refused to take reasonable action to stop
the harassing behavior and prevent it from occurring in the future"; (2) by telling
plaintiff he did not know and did not want to know the full story, Walker
demonstrated he "had no intention of doing the right thing by any reasonably
accepted standard for his behavior as manager"; (3) the actions taken by UniFirst
after the investigation offered no explicit protection for plaintiff against any
future contact with Gomez; and (4) UniFirst's actions "seem to have been taken
with the sole goal of ensuring . . . Gomez would remain employed."
On May 12, 2023, the court issued an oral decision granting the summary
judgment motions. The court's decision, in its entirety, follows:
I'm going to grant the application to dismiss the complaint on both parties (sic) because I think, first of all, the management did what they were supposed to do. They investigated; they took immediate action. They suspended him for three days. And the fact that there's not a specific statement in his file is of no persuasion to
A-2963-22 13 me because the payroll records clearly show that he was suspended for three days.
And to some extent I'm guessing, but the decision – once they made the decision to take the action they did, he had already been suspended for three days. So I suppose the fellow could have said and this will confirm he's already lost three days. That's – that's the issue. It's not a – not a big deal. He – as a fact, he was – he was suspended for three days. Action was taken.
I understand again, it's an employer's prerogative to decide whether . . . Gomez gets moved or whether she gets moved. They've offered a rational explanation. He was the one in charge of the files, not her. And it would have been more disruptive to move him than it would be to move her.
In terms of a constructive discharge, there has to be something that's so intolerable that it's unreasonable to expect somebody to stay. Her displeasure with the accommodation is not in any – by any means intolerable. And it's not a matter of a jury making that decision. It's very clear, she left immediately. There was not let me try it or something. Period, she's gone.
And in terms of . . . Gomez, there is a material fact as to whether he was a supervisor. But I still think – I do think that the claim as to him should also be dismissed because the – the company did everything they could do other than satisfy her very subjective objection to something that was not real.
So, for those reasons, I'll grant both applications dismissing the complaints (sic).
A-2963-22 14 Two May 12, 2023 orders granted summary judgment in favor of
defendants and dismissed the amended complaint.
This appeal followed. Plaintiff argues the motion court erred because
genuine issues of material fact exist with respect to whether: (1) she was subject
to a hostile work environment because of her sex; (2) Gomez was her supervisor;
(3) the UniFirst Defendants had an effective anti-harassment policy in place and
effectively responded to her complaint about Gomez; and (4) whether the
defendants, including Gomez, are subject to individual liability for her claims.
II.
We review a grant of summary judgment de novo, applying the same
standard as the motion court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That
standard requires us to "determine whether '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 challenged and that
the moving party is entitled to a judgment or order as a matter of law.'" Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).
"Summary judgment should be granted . . . 'against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.'"
A-2963-22 15 Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the motion court's legal
analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
"An issue of material fact is 'genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the motion, together
with all legitimate inferences therefrom favoring the non-moving party, would
require submission of the issue to the trier of fact.'" Grande v. Saint Clare's
Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38
(2014)). Self-serving assertions that are unsupported by evidence are
insufficient to create a genuine issue of material fact. Miller v. Bank of Am.
Home Loan Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015).
"Competent opposition requires 'competent evidential material' beyond mere
'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404
N.J. Super. 415, 426 (App. Div. 2009). We review the record "based on our
consideration of the evidence in the light most favorable to the parties opposing
summary judgment." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523-24
(1995).
A-2963-22 16 Under the LAD it is unlawful to discriminate against a person in terms,
conditions, or privileges of employment based on gender or sex. N.J.S.A. 10:5-
12(a). The goal of the LAD is "nothing less than the eradication of the cancer
of discrimination." Raspa v. Off. of Sheriff of Cnty. of Gloucester, 191 N.J.
323, 335 (2006) (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (1988)). Strong
public policy reasons support this goal. N.J.S.A. 10:5-3 ("[D]iscrimination
threatens not only the rights and proper privileges of the inhabitants of the State
but menaces the institutions and foundation of a free democratic State."). "The
law is thus intended to protect 'the civil rights of individual aggriev ed
employees' as well as 'the public's strong interest in a discrimination-free
workplace.'" Rios v. Meda Pharm., Inc., 247 N.J. 1, 9 (2021) (quoting Lehmann
v. Toys 'R' Us, 132 N.J. 587, 600 (1993)). Accordingly, "[t]he LAD is remedial
legislation that should be liberally construed to advance its purposes." Rios, 247
N.J. at 10.
A. Hostile Work Environment.
To establish a cause of action under the LAD based on hostile work
environment, plaintiff must satisfy four elements:
Specifically, [she] must show that the complained-of conduct (1) would not have occurred but for [her] protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4)
A-2963-22 17 the conditions of employment have been altered and that the working environment is hostile or abusive.
[Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 24 (2002).]
The inquiry into what is severe or pervasive is intwined with whether a
reasonable woman would believe the conditions of her employment are altered
and the working environment is hostile. Lehmann, 132 N.J. at 604.
The LAD is not intended to be a general workplace civility code.
Discourtesy or rudeness should not be confused with gender discrimination.
Herman v. Coastal Corp., 348 N.J. Super. 1, 21 (App. Div. 2002); see also
Shepherd, 174 N.J. at 25. The burden of proving discrimination "remains with
the employee at all times." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450
(2005).
The motion court did not address these well-established factors or make
any findings of fact or conclusions of law with respect to whether plaintiff raised
a genuine issue of material fact relating to her hostile working environment
claim. See R. 1:7-4(a) ("The court shall, by an opinion or memorandum
decision, either written or oral, find the facts and state its conclusions of law
thereon . . . on every motion decided by a written order that is appealable as of
right . . . ."). Having reviewed the record, we agree with plaintiff's argument
A-2963-22 18 she raised genuine issues of material fact with respect to each Shepherd factor,
precluding summary judgment.
First, defendants argue plaintiff cannot establish Gomez's behavior toward
her was not based on her sex because Gomez took pictures of male employees
as well as female employees and both men and women were present in the
meeting room when he made the lewd gesture. Defendants argue plaintiff's
subjective belief that Gomez directed his behavior toward her because of her sex
is insufficient to overcome summary judgment. We disagree.
[I]n order to state a claim under the LAD, a plaintiff [must] show by a preponderance of the evidence that she suffered discrimination because of her sex. Common sense dictates that there is no LAD violation if the same conduct would have occurred regardless of the plaintiff's sex. For example, if a supervisor is equally crude and vulgar to all employees, regardless of their sex, no basis exists for a sex harassment claim. Although the supervisor may not be a nice person, he is not abusing a plaintiff because of her sex.
[Lehmann, 132 N.J. at 604.]
However, to establish an LAD claim, "[a]ll that is required is a showing that it
is more likely than not that the harassment occurred because of the plaintiff's
sex." Id. at 605. The harassing conduct may or may not be sexual in nature,
provided it occurs because of the victim's sex. Id. at 602.
A-2963-22 19 Defendants' argument overlooks plaintiff's testimony Gomez told her he
was sexually attracted to her and persistently commented on her appearance, and
that she rebuffed his repeated requests to take her photo. A jury could
reasonably determine Gomez's comments about plaintiff's appearance and his
desire to take her photo were related to her sex, particularly in the absence of
evidence Gomez commented on the appearance of male employees he
photographed. In addition, Gomez's insistence on taking plaintiff's photograph
despite her denial of consent could reasonably be interpreted by a jury as
occurring because of her sex, as defendants produced no evidence of non-
consensual photo taking by Gomez of male employees.
Plaintiff also testified Gomez looked directly at her when he made the
lewd gesture. Her account of the incident was corroborated by the other
employees who were present at the meeting. A jury could reasonably find her
testimony credible. In addition, a jury could reasonably find Gomez's conduct
at the meeting was directed at plaintiff because of her sex in light of his prior
persistent comments about her appearance. A jury could also reasonably find
the presence of other employees in the meeting room when Gomez directed his
lewd gesture at plaintiff was evidence of his intention to humiliate plaintiff for
A-2963-22 20 her refusal to permit him to take her photo and to cast her as an object of sexual
desire in front of her coworkers.
Second, we agree with plaintiff's argument she raised genuine issues of
material fact with respect to the remaining Lehmann factors. When evaluating
a hostile environment claim, we examine the severity or pervasiveness of the
offending conduct under the totality of the circumstances, including: (1) its
frequency; (2) its severity; (3) whether it is physically threatening or humiliating
or a mere offensive utterance; and (4) whether it unreasonably interfered with
an employee's work performance. Godfrey v. Princeton Theological Seminary,
196 N.J. 178, 196 (2008). The "objective severity of harassment should be
judged from the perspective of a reasonable person in the plaintiff's position,
considering all the circumstances." Oncale v. Sundowner Offshore Servs., 523
U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., 510 U.S. 17, 23 (1993)). The
reasonable person standard does not allow "claims based on the idiosyncratic
response of a hypersensitive plaintiff to conduct that is not objectively harassing
. . . ." Lehmann, 132 N.J. at 613. It is possible one incident is severe enough to
create a hostile environment. Taylor v. Metzger, 152 N.J. 490, 499, 513 (1998)
(county sheriff saying about an African American sheriff's officer "[t]here's the
A-2963-22 21 jungle bunny" in presence of another supervisor was sufficient, standing alone,
to create hostile environment).
Defendants argue even if plaintiff's allegations are accepted as true,
Gomez's offending conduct was insufficient for a jury to find a reasonable
person in plaintiff's position would objectively view the conduct as severe or
pervasive enough to alter the conditions of her employment and create a working
environment that was hostile or abusive.
In support of their argument, defendants note the lewd gesture happened
only once and plaintiff did not immediately report it. In addition, they argue a
jury could not reasonably find the gesture interfered with plaintiff's work,
because she worked the remainder of the day it happened and an additional
month thereafter. Defendants note that in response to Gomez's insistent attempt
to take her photograph, plaintiff did not tell him to stop or that his behavior was
offensive, electing instead to "ignore[] it, hoping he [would] stop." Defendants
characterize Gomez's behavior as "benign" and "arguably not directed at
plaintiff." We disagree.
A jury could reasonably find Gomez's lewd gesture, directed at plaintiff
during a meeting with her coworkers present, standing alone, created a hostile
work environment. The sexual gesture, like the racial slur in Taylor, is an
A-2963-22 22 objectively crude and demeaning act by a supervisor in the presence of other
employees that could reasonably be found to have only one purpose: to
humiliate an employee and publicly announce that in their workplace they are
not valued for their work, but are marked for derision and objectification based
on a protected characteristic.
In addition, Gomez's crude gesture was not the only alleged act of
discrimination. Plaintiff alleged Gomez repeatedly commented on her
appearance, persistently asked to take her photograph, which he took despite
plaintiff's refusal to consent to being photographed. A jury could reasonably
find Gomez's insistent behavior created a hostile environment in which plaintiff
was forced to work. Defendants' suggestion an employee must object to
offensive behavior by a supervisor before she can assert a hostile environment
claim is not supported by the text of the LAD or the published precedents
interpreting the statute. A supervisor who mimics oral sex with a woman during
a meeting with subordinates is not insulated from liability for the hostile
environment caused by his lewd behavior because the female employee to whom
the gesture was directed did not object at the moment the offensive conduct took
A-2963-22 23 place. To hold otherwise would place the burden on the harassed employee to,
in effect, warn her supervisor that his objectively harassing conduct is unlawful. 2
B. UniFirst Liability for Hostile Environment.
Under the LAD, an employer can be found liable for acts of unlawful
employment discrimination by its employees. N.J.S.A. 10:5-12(a); Lehmann,
132 N.J. at 619. Employer liability attaches in several ways. First, an employer
is subject to vicarious liability if a supervisor acted within the scope of their
authority, where the employer delegated that authority, and the LAD violation
was aided and abetted by that authority. Id. at 619-20.
Second, an employer may be vicariously liable for sexual harassment that
occurs outside the scope of the supervisor's authority, if the employer had
"actual or constructive notice of the harassment," or "if the employer negligently
or recklessly failed to have an explicit policy that bans sexual harassment and
that provides an effective procedure for the prompt investigation and
remediation of such claims." Id. at 624. As the Court explained, when an
employer knows or should have known of harassment, but fails to take effective
measures to stop it, the employer "has joined with the harasser in making the
2 The motion court found plaintiff created a genuine issue of material fact with respect to whether Gomez was her supervisor. Because defendants did not file a cross-appeal, we do not address that issue. A-2963-22 24 working environment hostile . . . [and sent] the harassed employee the message
that the harassment is acceptable and that the management supports the
harasser." Id. at 623.
An employer is generally liable for a hostile work environment created by
a supervisor "because the power an employer delegates to a supervisor 'to
control the day-to-day working environment' facilitates the harassing conduct."
Heitzman v. Monmouth Cnty., 321 N.J. Super. 133, 145 (App. Div. 1999)
(quoting Lehmann, 132 N.J. at 620). Finally, "an employer's liability for its own
negligence in failing to take effective remedial measures [is] a form of direct
liability in addition to vicarious liability." Payton v. N.J. Tpk. Auth., 148 N.J.
524, 536 (1997).
We agree with plaintiff's argument she created genuine issues of material
fact with respect to whether UniFirst had in place an effective remedial process
and plan for responding to plaintiff's complaint against Gomez. The mere
existence of UniFirst's anti-harassment policy is insufficient to insulate the
company from liability. Lehmann, 132 N.J. at 623. "The efficacy of an
employer's remedial program is highly pertinent to an employer's defense."
Gaines v. Bellino, 173 N.J. 301, 314 (2002). An effective remedial program is
one that is "reasonably calculated to end the harassment." Lehmann, 132 N.J.
A-2963-22 25 at 623. The effectiveness of the employer's program is not gauged merely by
the sanction imposed on the offender. Payton, 148 N.J. at 537. The inquiry
must consider the process of investigation, including the "timeliness,
thoroughness, attitude toward the alleged harassed employee, and the like . . . ."
Ibid. As the Court explained, a remedial program that leaves the employee
"exposed to continued hostility in the workplace" is ineffective. Id. at 538.
It is undisputed Gomez was disciplined for sexually harassing N.R. before
he began harassing plaintiff. This fact alone creates a question as to the efficacy
of UniFirst's anti-harassment policy because it is evident that UniFirst's prior
sanction of Gomez was not effective. In addition, Gomez received a lesser
sanction for his harassment of plaintiff than he did for his prior harassment of
N.R. UniFirst issued a no-contact order for N.R., an employee Gomez did not
supervise. However, it issued no such directive for plaintiff, an employee he
did supervise. Apart from a three-day suspension, the only sanction imposed on
Gomez for harassing plaintiff was to take, again, the annual anti-harassment
training given to all employees.
In addition, while UniFirst removed plaintiff – not Gomez – from the
accounts on which they both worked, it did not take steps to ensure plaintiff
would not have to interact with Gomez in the future. In fact, it was undisputed
A-2963-22 26 plaintiff would continue to be required to attend the weekly meeting (at which
Gomez made his lewd gesture) with Gomez. Notably, while informing plaintiff
of the actions taken against Gomez, Walker told her he did not "know the whole
story" and suggested he did not want to know the extent of Gomez's conduct. A
jury could reasonably find UniFirst did not take effective measures against
Gomez and is, therefore, liable for the hostile work environment he created.
C. Constructive Discharge.
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, 174 N.J. at
27-28. Constructive discharge is a "heavily fact-driven determination." Muench
v. Twp. of Haddon, 255 N.J. Super. 288, 302 (App. Div. 1992) (quoting
Levendos v. Stern Ent., Inc., 806 F.2d 1227, 1230 (3d Cir. 1988)). Courts
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 employers to the employee's
complaint, and all other relevant circumstances. Shepherd, 174 N.J. at 28.
The record establishes plaintiff raised a genuine issue of material fact with
respect to whether she was constructively discharged from UniFirst. On the day
A-2963-22 27 she was informed of the action taken against Gomez, plaintiff saw Gomez and
Walker walking into the office arm-in-arm, smiling at one another. Walker was
cold and abrupt with plaintiff when he informed her of the outcome of the
investigation, including that Gomez would be terminated only if he "fucks up"
again. He told plaintiff he did not know or want to know the full story
surrounding Gomez's harassing behavior. He also told plaintiff she would be
reassigned from the client accounts she developed over the prior year and he
would take no steps to keep her from coming into contact with Gomez in the
future. A jury could reasonably find these facts are sufficient to constitute
plaintiff's constructive discharge.
D. Aiding and Abetting Liability.
Finally, we address plaintiff's argument the motion court erred when it
granted summary judgment to the UniFirst Defendants on her individual liability
claims. "It shall be . . . unlawful discrimination . . . [f]or any person, whether
an employer or an employee or not, to aid, abet, incite, compel or coerce the
doing of any of the acts forbidden" under the LAD. N.J.S.A. 10:5-12(e). Such
conduct may result in personal liability for the individual supervisor. Tarr v.
Ciasulli, 181 N.J. 70, 83 (2004).
Aiding and abetting "require active and purposeful conduct." Ibid.
A-2963-22 28 [I]n order to hold an employee liable as an aider or abettor, a plaintiff must show that '(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principle violation."
[Id. at 84 (quoting Hurley v. Atl. City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999)).]
For the reasons discussed in greater detail above, plaintiff raised genuine
issues of material fact with respect to whether the UniFirst Defendants, who
decided the discipline Gomez received and who oversaw the implementation of
UniFirst's anti-harassment policy during the approximately one-year period
during which Gomez harassed two employees, aided and abetted his unlawful
acts.
With respect to Gomez's liability, we have not settled the question of
whether an individual employee can be subjected to aiding and abetting liability
for his own conduct. We have examined the issue in non-precedential opinions.
The motion court did not address the legal issue, and we decline to decide the
novel question on the undeveloped summary judgment record. We direct the
trial court to address the issue on remand in the first instance.
A-2963-22 29 The orders on appeal are reversed and the matter is remanded for further
proceedings consistent with this opinion. We do not retain jurisdiction.
A-2963-22 30