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November 15, 1994

GAIL DOMM, plaintiff,


The opinion of the court was delivered by: JOEL A. PISANO



 This matter comes before the Court upon the summary judgment motion of defendants Arthur Shlossman ("Shlossman") and Fred Golden ("Golden"). *fn1" Defendants Shlossman and Golden seek to be dismissed from this sexual harassment case arguing that there is no legal basis for holding them personally liable to plaintiff Gail Domm ("Domm"). In the alternative, defendants argue that plaintiff has failed to establish the existence of a hostile work environment as a matter of law. Defendants also move to dismiss plaintiff's claim for punitive damages. Opposition was filed by plaintiff Domm, and oral argument was heard on October 25, 1994. For the reasons stated herein, defendants' motions for summary judgment are denied.


 Domm commenced this lawsuit on April 15, 1993. She is suing under Title VII of the Civil Rights Act of 1964 ("Title VII") and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 ("NJLAD") for "lost income, lost fringe benefits, emotional distress and physical illness and discomfort caused or aggravated by the emotional distress, punitive damages, costs of suit, attorneys fees and such further relief as the Court deems equitable." Am. Comp. P 16. Her claim arises out of five alleged incidents of sexual harassment which she asserts created a hostile environment.

 Domm began working at Jersey Printing Company, Inc. ("Jersey Printing") in 1986 as a sales representative. She continued to be employed by Jersey Printing until November, 1992 when she resigned from her position allegedly due to the hostile environment that was created by the sexual harassment of defendant Shlossman.

 Defendant Shlossman became CEO of Jersey Printing in 1989 when his father, who owned the company, began to have financial troubles. Prior to working at Jersey Printing, Shlossman owned and operated his own pre-press printing business. Shlossman and Domm became romantically involved during the summer of 1988, prior to Shlossman's employment at Jersey Printing. Their relationship continued until February, 1990. During that time period, Domm and Shlossman engaged in a consensual sexual relationship, at one point contemplating marriage, but they decided against it and separated for a six month period as a result. All alleged incidents of sexual harassment occurred over one year after Domm and Shlossman terminated their relationship.

 The first incident of sexual harassment alleged by Domm occurred in August, 1991. She asserts that while discussing business in Shlossman's office, Shlossman asked her if she was wearing a bra and if he could see it. Second, Domm claims that in August or September of 1991, she was in Shlossman's office discussing business when Shlossman asked her if she was wearing underpants and if so, what type. Third, in January of 1992, Domm maintains that Shlossman entered her office with two rolled calendars extending from his groin area, simulating a penis. Domm alleges that he shouted, "Look, look," approached her and touched her with the calendars. Next, Domm asserts that in January of 1992 when she phoned Shlossman to cancel a lunch appointment due to illness, Shlossman asked her if she had sprained her thighs as a result of spreading her legs too wide, since he knew that women sometimes did that. Finally, Domm claims that in June of 1992, Shlossman leered at her in a lustful manner. This incident took place in the presence of a co-worker, who observed Shlossman's behavior and offered Domm assistance in walking back to her office.

 After each of the first four incidents, Domm maintains that she informed Shlossman that his conduct was inappropriate, unappreciated and unwelcome. Furthermore, Domm reported the first four incidents to her supervisor, Golden. The deposition testimony as to Golden's response to Domm's report differ. Golden stated that he notified Shlossman of the complaints. Shlossman maintains that he was not notified. Domm claims that Golden assured her that he would and did speak with Shlossman. In addition, Domm asserts that Golden instructed her that it was her behavior that caused the problem and that she should terminate all non-business contact with Shlossman.


 Standard of Review

 Pursuant to Fed. R. Civ. P. 56(c), summary judgment shall be granted 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." Id. In making this determination, a court must draw all inferences in favor of the non-movant. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 fn.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). Whether a fact is "material" is determined by the substantive law defining the claims. United States v. 225 Cartons, 871 F.2d 409, 419 (3d Cir. 1989).

 When deciding a motion for summary judgment, the judge's function is not to weigh the evidence to determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). An issue is "genuine" if a reasonable jury could hold in the non-movant's favor with regard to that issue. Id. at 248. A fact is "material" if it influences the outcome of the action under the governing substantive law. Id. Summary judgment must be granted if no reasonable trier of fact could find for the non-moving party. Id. at 249; Radich v. Goode, 886 F.2d 1391, 1395 (3d Cir. 1989)

 When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party has carried its burden of establishing the absence of any genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). When the non-moving party's evidence in opposition to a properly supported motion for summary judgment is merely "colorable" or "not significantly probative," the court may grant summary ...

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