On appeal from Superior Court, Law Division, Union County.
J.h. Coleman and Paul G. Levy. The opinion of the court was delivered by J.h. Coleman, P.J.A.D.
In this sexual harassment case, plaintiff appeals from a summary judgment dismissing the first three counts of her four-count complaint.
Plaintiff filed her complaint on September 18, 1991. Count One alleges sexual harassment as well as an assault and battery. Plaintiff contends that Parisi attempted to kiss her and that he fondled her and kissed her on diverse dates. She alleges that she suffered emotional distress as the result of the sexual harassment as well as the assaults and batteries.
Count Two alleges the Elizabeth Board of Education (Board) is vicariously liable for the conduct of Parisi alleged in Count One under principles of agency. Count Three alleges the Board is vicariously liable for Parisi's conduct because the Board condoned his actions by failing to take corrective measures in a timely fashion. Count Four alleges sexual harassment by Parisi and the Board in violation of The Law Against Discrimination, N.J.S.A. 10:5-1 et seq., (LAD). Plaintiff sought compensatory and punitive damages under each count.
Plaintiff alleges in her certification in opposition to the motions for summary judgment and in her answers to interrogatories that she was a teacher at the Elizabeth High School where defendant Parisi was the executive principal. She alleges Parisi engaged in a course of conduct which amounted to sexual harassment while attempting to persuade her to engage in a sexual relationship with him after she informed him that she had no such interest. She further alleges Parisi attempted to kiss her, kissed her, fondled her, and attempted to pull her into a Hilton Hotel elevator in an endeavor to take her to a hotel room to have sex. The Judge found as a fact, based on the allegations made by plaintiff, "a jury
could not conclude that Parisi intended to cause the plaintiff emotional harm or that he acted with reckless deliberate disregard of a high probability that emotional harm would result."
R. 4:46-2 directs that summary judgment should not be granted where there is a "genuine issue as to any material fact challenged . . . ." The role of the Judge in a motion for summary judgment is "to determine whether there is a genuine issue as to a material fact, but not to decide the issue if he finds it to exist." Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73, 110 A.2d 24 (1954). Plaintiff's papers in opposition to the motions should have been "indulgently treated." Id. at 75, 110 A.2d 24. Examined in that light, summary judgment should have been denied.
Here, the Judge failed to treat indulgently plaintiff's assertions respecting Parisi's deliberate conduct. Those allegations provided a sufficient basis for a jury to find the existence of any intent on the part of Parisi which may be necessary under either count of the complaint. More importantly, resolution of Parisi's state of mind can only be determined from the totality of the circumstances surrounding Parisi's conduct. Beyond that, a question of intent, or proximate cause, is ordinarily left to the jury's determination with proper instructions. Ruvolo v. American Casualty Co., 39 N.J. 490, 500, 189 A.2d 204 (1963); Judson, supra, 17 N.J. at 76, 110 A.2d 24; Morton Int'l, Inc. v. General Accid. Ins. Co. of Am., 266 N.J. Super. 300, 323, 629 A.2d 895 (App.Div.1991), affirmed, 134 N.J. 1, 629 A.2d 831 (1993); Strumph v. Schering Corp., 256 N.J. Super. 309, 319-20, 606 A.2d 1140 (App.Div.1992); Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212, 521 A.2d 872 (App.Div.1987).
There is an additional reason why summary judgment was inappropriate. The sexual harassment cause of action pleaded in Count One and the claims made pursuant to the LAD are
identical, except perhaps for punitive damage claims.*fn1 Since pleadings are to be viewed liberally, Lieberman v. Port Auth., 132 N.J. 76, 79, 622 A.2d 1295 (1993), all of the counts should be viewed as alleging sexual harassment by a supervisor. In addition, Count One alleges common law batteries which also form part of the basis for the sexual harassment claim. Under Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 617-19, 626 A.2d 445 (1993), a LAD claim against a supervisor and a vicarious liability claim against the employer in a hostile work environment involving sexual harassment are so intimately intertwined with the claims of negligence and infliction of emotional distress that they cannot be separated. The same nucleus of operative facts will be utilized to prove all of the ...