On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication May 16, 1996.
Before Judges Stern, Wallace and Newman. The opinion of the court was delivered by Newman, J.A.D.
The opinion of the court was delivered by: Newman
The opinion of the court was delivered by NEWMAN, J.A.D.
Plaintiff Pamela Woods-Pirozzi (Pirozzi) appeals from the grant of summary judgment dismissing her claims under New Jersey's Law Against Discrimination (LAD) of hostile work environment sexual harassment, retaliation, and constructive discharge. We affirm in part and reverse and remand in part.
The facts are summarized "in the light most favorable to the non-moving party," plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). In September 1989, Pirozzi, then 33-years-old, was hired by Nabisco to be the head nurse/medical supervisor at its Fair Lawn, New Jersey facility. Her supervisor was Mark Matwick, then Safety Coordinator-Employee Relations Supervisor of the facility. Pirozzi's duties included performing first aid, overseeing the Medical Department, handling OSHA logs, and dealing with the workers' compensation insurance company. At her interview, Matwick informed Pirozzi that Nabisco was eventually going to merge the medical and safety departments.
In October 1989, Matwick told Pirozzi that the plant manager, Tom Westin, had not really wanted to hire Pirozzi because he was afraid that, since she was a divorcee with good looks, she would only be looking "for a husband or to get laid."
In January 1990, Stephen Montalto replaced Matwick as Employee Relations Manager and as Pirozzi's supervisor. Montalto reported to John Geso, Personnel Manager. Matwick remained Safety Coordinator.
At some point in time, Ted Klasnick, a hospital's insurance agent, called plaintiff and told her that Ted Wimberly, a union representative employed by Nabisco, had told Klasnick that the way plaintiff was handling the union complaints, she must have been giving Klasnick sexual favors. When plaintiff brought this to the attention of Montalto and Geso, they asked her not to do anything because they were having enough union problems.
In 1990 and 1991, Pirozzi had continuing work-related disagreements with Dr. Stephen Ferraro, who provided medical services for employees at the Fair Lawn facility. In her deposition, Pirozzi conceded that Dr. Ferraro was an independent contractor, not a Nabisco employee.
In February or March 1990, Dr. Ferraro examined a female employee's vagina with no gloves on. Finding Dr. Ferraro's conduct inappropriate, Pirozzi initiated a meeting with Montalto, Matwick, and Dr. Ferraro. At the meeting, an angered Dr. Ferraro asserted that Pirozzi had left St. Joseph's Hospital, her previous employer, because she was "doing" all the residents. Neither Montalto nor Matwick responded to this comment.
In May 1990, Matwick transferred to another Nabisco facility. Pirozzi asked Montalto whether she could be considered for the Safety Specialist position Matwick vacated. Montalto explained that she was not qualified for the position, which Pirozzi acknowledged. In September 1990, Greg Cahill was hired to replace Matwick as Safety Specialist. He reported to Montalto, as did Pirozzi. Cahill had previously worked for UPS training employees regarding job safety and completion of OSHA logs. Pirozzi asserts that, when she asked why she was not interviewed for the position after performing it effectively for the five months since Matwick left, Montalto told her that it was "because you're a woman and a pain in my ass." Pirozzi asserts that Montalto frequently told her that this was why he did not want to give her Cahill's job.
From the end of 1990 through October 1991, Montalto would frequently, about once or twice a week, "humorously walk in [Pirozzi's] office, and bang on [her] door and go, 'Good morning loser,'" even after she repeatedly asked him to stop. Pirozzi complained about this, but no action was taken. In addition, Montalto would ask her if she "got lucky last night." Pirozzi also alleges that Montalto made derogatory comments regarding her appearance, such as her nails and hair, and that when an employee was referred to a Dr. Massingil, Montalto stated, "That's a douche, isn't it? Come on Pam, you probably use Summer's Eve."
In January 1991, Plant Manager Terry O'Day sent two memos to all supervisors and managers entitled "Guidelines Regarding Sexual Harassment."
In 1991, Montalto sat on Pirozzi's desk and repeatedly threw a softball over her head (such that it whisked her hair) against a wall with moderate speed from a few feet away. When Pirozzi said, "Steve, please stop that because you may hit me," Montalto responded, "If I choose to hit you, I will."
In September 1990 or January 1991, Dr. Ferraro commented to Pirozzi that she was getting a lot done in the Medical Department and that it obviously was related to sleeping with someone. She complained to Montalto, who took no action. Dr. Ferraro also made a statement that plaintiff was having a sexual affair with Nabisco's orthopedic consultant, Dr. Shmause, and that was the only reason they were using him. Pirozzi reported this to Montalto, who laughed, asked Pirozzi if she was in fact having such an affair, and took no action.
In February 1991, Pirozzi met with Montalto to discuss their differences. Montalto said, "You're so emotional, it must be PMS time." Finding his comment inappropriate, Pirozzi requested a meeting with Geso. Montalto stormed after Pirozzi, screaming, "You and I will settle this, not [Geso]." Geso's decision was that the two needed to work out their problem. Pirozzi asserts that Montalto frequently, maybe twice a month, made comments about her being emotional because of PMS.
In approximately March 1991, an 85-year-old security guard at the Nabisco facility asked Pirozzi's advice on whether he should get a penile implant. The guard put his arms around Pirozzi and said, "If I get [a penile implant], will you do me?" Pirozzi stated that she did not take the guard seriously, but complained to Montalto. Montalto laughed and took no action.
In March 1991, at a meeting between Pirozzi, Dr. Ferraro, Geso, Montalto, and O'Day regarding the working relationship between Pirozzi and Dr. Ferraro, Dr. Ferraro claimed that Matwick was transferred because he was having a sexual affair with Pirozzi. Dr. Ferraro also stated something to the effect of "we all know why Pam was hired, that it wasn't for her qualifications, but for her looks." Montalto and Geso both told Dr. Ferraro that his comment was inappropriate and untrue.
Subsequently, plaintiff met with Angela Garcia, Nabisco's EEO Coordinator, who relayed plaintiff's concerns regarding Dr. Ferraro to Geso. Geso told plaintiff that he knew Dr. Ferraro was "difficult" and they had been trying to get rid of him for years, but she would have to work with him for a while.
After seeing Garcia, plaintiff received Nabisco's policy statement regarding sexual harassment. It set forth the procedures to complain of sexual harassment: (1) the employee should report the matter to her supervisor or to Geso; (2) Garcia would investigate; (3) Garcia or Geso would meet with the complaining employee to discuss the results of the investigation; and (4) after exhausting the above steps, the employee could call Jim Maniatis, Employee Relations Manager. Retaliation against an employee for registering a complaint was prohibited. In May 1991, all employees received a copy of Nabisco's Equal Employment Opportunity manual which prohibited sexual harassment.
On June 12, 1991, plaintiff came down with the measles and did not return to work until August 26, 1991. While plaintiff was hospitalized with the measles, Dr. Ferraro, without authorization, went to the hospital and looked at plaintiff's hospital file. Dr. Ferraro then implied to a Nabisco employee that plaintiff had the AIDS virus, which she did not. Plaintiff complained about this to her supervisors, but nothing was done.
In June 1991, according to Geso and Montalto, Dr. Ferraro's contract with Nabisco was "terminated" in part because of his comment to Pirozzi at the March 1991 meeting.
On July 25, 1991, Pirozzi filed a charge with the New Jersey Division on Civil Rights (NJDCR) alleging sexual harassment by Dr. Ferraro. On August 16, 1991, plaintiff filed a similar Equal Employment Opportunity Commission (EEOC) charge. Geso then called plaintiff at home and asked her if she would drop the charges since Dr. Ferraro had been fired. She refused.
On August 22, 1991, Geso distributed a memo to all employees announcing that "Greg Cahill will have the responsibility of overseeing the functioning of the Medical Department." Cahill replaced Montalto as plaintiff's supervisor. Montalto described the action as an elevation of the Safety Specialist position such that it would report directly to Geso, rather than as previously to Montalto who in turn reported to Geso. The other, related part of the action was giving Cahill supervision of the Medical Department because of Nabisco's concern over rising compensation costs and because "it was more of a logical fit." After this action, according to Montalto, he would not have any reason to deal with Pirozzi since he was no longer her supervisor unless there were employee relations issues involved (since he was still Employee Relations Manager). ...