On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication June 28, 1996. As Corrected July 2, 1996. Second Correction August 6, 1996.
Before Judges D'Annunzio, Conley and Braithwaite. The opinion of the court was delivered by D'annunzio, J.A.D.
The opinion of the court was delivered by: D'annunzio
The opinion of the court was delivered by
In this action based on alleged sexual harassment, plaintiff appeals, pursuant to leave granted, from an order entered on the motion of defendant New Jersey Turnpike Authority (Authority) "protecting from discovery all investigative reports and notes relating to plaintiff's internal sexual harassment complaint, as well as the minutes of the Commissioner's April 25, 1995 Executive Session Hearing." Plaintiff also appeals, pursuant to leave granted, the denial of her cross-motion to suppress the Authority's affirmative defense that it "has taken effective remedial measures under its internal anti-harassment policy such that it is not liable for compensatory or punitive damages under Lehmann v. Toys ' R' Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993)." We now reverse the protective order and remand for further proceedings.
Plaintiff, Joanne Payton, was employed by the Authority as a maintenance records clerk. She began her employment with the Authority in 1990. In September 1994, plaintiff filed a complaint with the Authority's Equal Employment Opportunity Department alleging that two Authority employees, Robert Geberth and Michael Stankowitz, violated the Authority's sexual harassment policy.
Plaintiff contends that as of March 10, 1995, the Authority had taken no action against Geberth and Stankowitz. On that date, plaintiff commenced this action in the Superior Court. In the complaint, plaintiff alleges that Geberth is the "highest ranking administrator of the unit in which the plaintiff works," and that Stankowitz is the "second-in-command" of that unit. The complaint alleges that Geberth and Stankowitz sexually harassed plaintiff "and others in her work place, retaliating against the Plaintiff when she objected to the harassment." Plaintiff also alleges that "the wrongful conduct included sexually offensive touching and other acts of such pervasiveness and severity which created a hostile work environment." The complaint includes the following specific allegations:
(a) Defendant Geberth commented about Plaintiff's clothing grabbing the bottom of her skirt and pulling it down, stated her clothes look like she is "wearing pajamas," put his hand around the Plaintiff, on her shoulder or on her knee and called Plaintiff into his office directing that she turn around so that he could look at her;
(b) Defendant Stankowitz told Plaintiff on several occasions that he was "horny" and wanted "to get laid," referred to Plaintiff's breasts and said to her "just one time," tried to look down Plaintiff's blouse and, during lunch at a restaurant, took the Plaintiff's hand and put it between his legs;
(c) During the office holiday luncheon on or about December 1993, Defendants Geberth and Stankowitz gave Plaintiff a "baby doll" nightgown. Defendant Geberth insisted that she open the gift in front of her office co-workers who were attending the luncheon; and
(d) On or about July, 1993, Defendant Geberth slapped a female co-worker on the buttocks in the presence of several co-workers, including the Plaintiff.
The complaint also states that plaintiff filed an internal complaint with the Authority in September 1994 but that "Defendants have refused to act and to eliminate the hostile work environment created by Plaintiff's superiors," and that subsequent to the filing of the internal complaint, "Defendants ostracized her and refused to communicate with her."
Plaintiff alleges that these events violated the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq., and she seeks compensatory and punitive damages and other relief.
On April 26, 1995, the Star-Ledger, a New Jersey newspaper of statewide circulation, reported that the Authority's commissioners had, on the previous day, sanctioned Geberth and Stankowitz for their sexual harassment of plaintiff. The StarLedger reported that the sanctions included demotion, reduction in pay, and suspension without pay: four months for Geberth and two months for Stankowitz. The article named Geberth and Stankowitz, but it did not identify plaintiff.
Subsequent to the commencement of this litigation, plaintiff filed a demand for documents. The demand, addressed to the Authority, included "all documents relating to any investigation that was conducted by or for the defendant having to do with the plaintiff and her employment with defendant" and "all documents relating to any investigation that was conducted by or for the defendant having to do with the plaintiff and her administrative complaint alleging sexual harassment." Plaintiff also served the Authority with a supplemental demand seeking copies of "any minutes, transcriptions, reports, supporting documents, agendas, recordings related to [the Commissioners' April 25] meeting."
On May 25, 1995, the Authority moved for a protective order under R. 4:10-3, claiming the following privileges: 1) a public policy privilege under the LAD and Executive Order No. 88; 2) the self-critical analysis privilege; 3) the attorney-client privilege; and 4) the express exceptions to governmental disclosures as set forth in the Open Public Meetings Act. The Authority also sought an order sealing the record.
On August 7, 1995, plaintiff cross-moved to strike the Authority's affirmative defense that it took effective remedial measures in response to the internal complaint.
On October 13, 1995, the parties appeared before the court for oral argument on the Authority's motion. The court granted the protective order sought by the Authority, without an in camera review of any of the material plaintiff sought. It held:
The Court would have to put on blinders to fail to recognize the fact that those who come forward in terms of this type of investigation do so with an understanding that any communication would be privileged. And as such, the Court must take that into account. I am satisfied that in order for the law against discrimination to be provided with meaning,that it must provide and protect confidentiality to those who are encouraged under the law to step forward and to provide without fear of disclosure, information pertinent to their knowledge with regard to incidents of sexual -- alleged incidents of sexual harassment.
Anything the Court would do at this point to undermine that process would not only run contrary to the interest of this plaintiff, but contrary to the interests of all parties equally situated. The EEO statement and Executive Order 88 have acknowledged the fact that a great percentage of sexual harassment, in particular in the workplace, is -- unreported. And certainly if this Court were to deny the protective order and to permit within the context -- even within the context of this litigation, disclosure of information that was provided under the cover of confidentiality, it would be in effect permitting individual -- individual interests to undermine the purpose, the very purpose of the act which benefitted the interest of the plaintiff in this case in terms of the public interest.
The court further noted that to allow discovery of the requested materials would be inappropriate and contrary to the intent of the LAD. The court found that while normally full disclosure was encouraged, certain exceptions to this policy exist. The court ruled that the public policy concerns of confidentiality were paramount and overrode the individual need to know. Additionally, the court found that the information sought by plaintiff was obtainable by traditional means of discovery. Finally, the court held that with regard to the suppression of the Authority's defense, the court was not dismissing with prejudice plaintiff's right to re-assert this position and left open the possibility of future exceptions from the protective order.
The court entered the order precluding discovery and sealing all records in this matter. The court entered a separate order denying plaintiff's motion to suppress the Authority's affirmative defense "as it related to the investigation it conducted and to any other defenses arising out of its investigation."
During the proceedings below, the Authority produced a privilege document log and a memorandum dated April 20, 1995 to the Chairman and Commissioners of the New Jersey Turnpike Authority from the Authority's Executive Director. Because they sharpen the focus of this dispute, and in the case of the log provides the only information defining the disputed material, we reproduce the log and part of the memorandum. The log states:
In accordance with the brief filed on May 25, 1995, by the New Jersey Turnpike Authority in support of its Motion for a Protective Order, the Authority contends that the following documents are privileged and confidential based upon: (1) the public policy underlying the Law Against Discrimination (LAD); (2) the self-critical analysis privilege; (3) attorney-client privilege; (4) the confidentiality exceptions of the Open Public Meetings Act.
1. Investigation memo, dated December 8, 1994, advising of investigation and initial findings by the Director of the Department of Equal Opportunity ("EEO Officer").
2. Final Investigative Reports, dated March 14, 1995, and interview notes of the EEO Officer and Mark Margiotta, Esq., former employee in the Authority's Law Department (one report deals with the allegations against Robert Geberth and the ...