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March 6, 1987

JUDITH A. PORTA, Plaintiff,

The opinion of the court was delivered by: COHEN

 This civil rights action instituted by plaintiff, Judith A. Porta, against her former employer Rollins Environmental Services (NJ), Inc. ("Rollins") and its employees Donald C. Matter, Donald Hawkey and Glendon J. Spears is before the Court on a summary judgment motion by defendants. For the reasons that follow, the motion is denied.

 Plaintiff alleges that Rollins violated several provisions of Title VII of the 1964 Civil Rights Act, 42 U.S.C. ยง 2000e et seq. She also asserts pendant state law claims, alleging breach of contract, intentional infliction of emotional distress, and violations of the New Jersey Law against Discrimination, N.J.S.A. 10:5-12. She seeks back pay with interest, lost employment benefits, punitive damages and attorneys' fees and costs.

 Plaintiff was employed by Rollins at its Bridgeport, New Jersey facility from May of 1980 to June of 1984, when her employment was terminated. In August of 1984 she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), received a right-to-sue letter in July of 1985, and filed this action on October 15, 1985.

 Plaintiff was hired by Rollins to serve as a shift supervisor, and she was the facility's first female managerial employee. She alleges a series of discriminatory acts, which we will briefly outline here. She asserts that throughout her employment discriminatory statements were made by defendants Hawkey, an engineer at the plant, and Spears, the supervisor of operations. Plaintiff alleges that Spears said he would never have hired a woman as a shift supervisor, and that both Hawkey and Spears made statements such as "What do you know, you're a woman" throughout her tenure.

 Several weeks after she began work, she received seven or eight threatening and sexually offensive, anonymous handwritten notes in her mailbox at the plant. She brought them to the attention of Maurice Hunt, then a vice-president of Rollins, who ordered that access to the mailboxes be restricted. Plaintiff claims that despite this order, she received one or two more notes, and that she had no idea who was sending the notes.

 Then, on Christmas Day, 1981, plaintiff alleges that she was "set up" by defendant Spears, who allegedly left her in charge of a waste disposal operation without adequate staff, and that she had to shut down this operation as a result. Plaintiff maintains that Spears deliberately put her in this difficult position because of her sex.

 In December 1982, plaintiff was temporarily serving as acting Health and Safety Supervisor. She applied for assignment to that position on a permanent basis but was rejected, she was told, because she did not hold an industrial hygienist certificate. The male employee who was subsequently promoted to this position also did not have such a certificate, but was permitted to obtain this certification after his assignment. Plaintiff was not given that option, and alleges that she was denied the position because she was a woman.

 In February 1983, while plaintiff was working as a shift relief supervisor, defendants Spears and Hawkey allegedly called her four times from the company lunchroom, where she was eating, to a pump repair station at the other end of the plant. She claims they called her to issue permits they were authorized to issue themselves, and found it "funny" that she had to keep walking back and forth the length of a football field between the repair area and the lunchroom.

 On October 30, 1983, in an exchange concerning the suitability and safety of certain scaffolding, defendant Hawkey made a remark to the effect that plaintiff could not fall through an opening between the scaffolding and a vessel because her "tits were too big." Plaintiff had inspected the opening and had stated that it did not meet relevant safety standards. She complained about this incident to Hunt, who counseled Hawkey to be more careful about making such comments.

 The next incident occurred in January, 1984, when plaintiff alleges that she noticed some crude graffiti saying "Judy sucks Bernie's dick" on a refrigerator in a staff lounge. She maintains that no one cleaned the graffiti for a week, until she instructed a janitor to remove it. She reported the incident to defendant Donald Matter, Rollins' Vice-President of Operations, who issued a memo about defacing company property but which did not address the issue of sexual harassment.

 The final incident plaintiff complains of is her termination. In February, 1984, she was selected for the newly created position of Staff Assistant for Operations. Her job description was detailed in a memorandum prepared by defendant Spears. One of the duties listed was to

Cover, as necessary, the positions of Transportation Supervisor and Supervisor of Safety & Health. It should be understood that in an emergency, the Shift Supervisor's position will also be covered, but it must be an urgent need. The two positions covered and responsibilities must be discussed. (emphasis added).

 In May of 1984, one of Rollins' four shift supervisors was transferred to another division, and another was discharged, leaving only two shift supervisors to cover the round-the-clock operations of the plant. These two were each working 12 hours a day, seven days a week. In June, 1984, defendant Matter ordered plaintiff to work as a shift supervisor on a rotating shift. She denied that the situation constituted an "urgent need," as required by her job description and as that term had been explained to her. She said that even though she was not required to assist, she would be willing to work as a shift supervisor from 8:00 A.M. to 4:00 P.M. Monday through Friday. Plaintiff claims that she wanted to avoid working nights and weekends because defendant Spears would often come in inebriated at those times, and that she wished to avoid further sexual harassment from him. When she refused to work any nights or weekends as a shift supervisor, she was discharged, on June 15, 1984.

 Plaintiff seeks relief under several provisions of Title VII: she asserts that she was subjected to a hostile and offensive work environment, that Rollins' failure to promote her amounted to unlawful disparate treatment, and that she was discharged in retaliation for her lawful opposition to harassment. Before we can address the merits of those claims, we must deal with some preliminary issues about the timeliness of plaintiff's complaint.

 I. Failure to Exhaust State Administrative Remedies

 One preliminary problem relates to the Title VII requirement that a claimant exhaust state administrative remedies before proceeding under federal law. Section 2000e-5(c) of Title 42 provides:

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, ...

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