Pirrone terminated Lynch's employment on July 18, 1994. Lynch twice asked for an opportunity to speak to Steven Sacharoff regarding her performance bonus, but was never given that opportunity. Defendants claim that they informed Lynch that she was let go because of financial difficulties. Lynch asserts that she was never offered any explanation for her dismissal (id. at 281:10-18), but then testified that she was informed that it was a lay-off (id. at 288:13). Lynch avers that she never received any criticism of her work, nor was she ever warned that her job was in jeopardy. After Bernard Sacharoff died, approximately six weeks before Lynch's discharge, Geik told her, "You know, we are relying on you, Fran, you're in charge now, Bernie would have wanted you to carry on [.] . . . We are depending on you [.] . . . The company is solid. Please stay with us." Id. at 273:9:15. Lynch believes that a disagreement she had with Steven Sacharoff about a health insurance renewal was a contributing factor to her termination.
Steven Sacharoff contends that he had told Lynch of his concerns regarding New Deal's accounts receivable. He admits, however, that he never expressed any dissatisfaction with her performance in writing nor did he warn her that her job was in danger. Defendants replaced Lynch with a man whom they paid $ 50,000 less than they had paid her. Approximately six weeks before Lynch's discharge, Pirrone received a $ 20,000 raise in salary.
According to Lynch, during her tenure at New Deal she saved the company $ 407,487.50 on its insurance premiums, $ 364,573.37 on a workers compensation audit, $ 59,417 on a cargo renewal, $ 78,926.40 on a health insurance renewal, and $ 95,251.55 in miscellaneous savings. Lynch claims that Steven Sacharoff told her after she had saved the organization $ 407,487.50 on an insurance renewal, "That's one for your column." Certification of Fran J. Lynch at P 8. She understood his remark to refer to the bonus discussed in the letter outlining the terms of her employment. However, defendants contend that the parties never established a method for quantifying savings for the proposed bonus, and Lynch herself acknowledges that there was "something more" to be agreed upon regarding the savings to which the letter referred. Lynch Dep. at 135:8-11.
In October 1994, after Lynch was fired, Gancarz complained once more about Steven Sacharoff's behavior. Pirrone and Geik agreed to negotiate a settlement with her. Accordingly, Gancarz and her husband, who also worked for New Deal, received $ 50,000 plus medical benefits for a year to leave the company. Gancarz was making $ 30,000 a year at the time and her husband was earning between $ 30,000 and $ 35,000 a year. Also in October 1994, Geik settled with another employee named Karen McElroy ("McElroy") who had complained about inappropriate remarks made by Steven Sacharoff. McElroy received $ 30,000 in-exchange for her resignation. She had been earning $ 325 per week, or approximately $ 17,000 per year. Finally, a female employee named Marianne Guthrie also complained in October about Steven Sacharoff's offensive comments. She did not seek a financial settlement, but wanted his conduct stopped. The record contains three letters from Geik to counsel for New Deal regarding these claims. The letters state that Gancarz, McElroy and Guthrie had accused Steven Sacharoff of sexual misconduct and sexual harassment.
On October 14, 1994, Pirrone wrote to advise counsel of the Lori Gancarz incident. According to this letter, Pirrone directed Steven Sacharoff to take a leave of absence, seek professional help, and undergo sensitivity training. Pirrone also requested in the letter that Steven Sacharoff not be permitted to return to the New Deal facility "until he has completed evaluation by a professional indicating that he is fully rehabilitated and assuring New Deal Delivery Service, Inc. and its partnership that such behavior is unlikely to manifest itself again in the future." See Certification of Jane B. Jacobs, Exh. A-16. Steven Sacharoff signed the letter.
II. PROCEDURAL HISTORY
On December 15, 1995, seventeen months after her termination from New Deal, Lynch filed this lawsuit in the United States District Court for the District of New Jersey.
In her Complaint, she alleges New Jersey state-law claims of hostile work environment and quid pro quo sexual harassment (Count One); retaliatory discharge (Count Two); gender motivated termination and denial of termination related benefits (Count Three); intentional infliction of emotional distress (Count Four); breach of the implied covenant of good faith and fair dealing in contract (Count Five); violation of the public policy of the State of New Jersey (Count Six); and breach of contract (Count Seven). Jurisdiction is based upon diversity of citizenship and an amount in controversy exceeding $ 50,000. See 28 U.S.C. § 1332 (amended Oct. 19, 1996).
Lynch contends that she has lost earnings and employment benefits and has suffered and continues to suffer severe anxiety, stress, humiliation and other damage to her emotional well-being. She asserts that she is entitled to compensatory and punitive damages, costs, and attorney's fees. Defendants now move for summary judgment against Lynch on all counts.
III. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when the moving party establishes that "there is no genuine issue of material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56 (c). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Sound Ship Building Co. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied, 429 U.S. 860, 50 L. Ed. 2d 137, 97 S. Ct. 161 (1976). The material fact or facts become genuine when a reasonable trier of fact could render a verdict for the non-moving party. Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n.3 (3d Cir. 1988), cert. denied, 490 U.S. 1098, 104 L. Ed. 2d 1004, 109 S. Ct. 2449 (1989).
At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. Meyer v. Riegel Prod. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984).
Lynch alleges that she was subjected to a hostile work environment and quid pro quo sexual harassment in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5 et seq. (West 1993 & Supp. 1997). She also claims that in terminating her employment, defendants unlawfully retaliated against her for resisting the alleged sexual harassment and hostile work environment, in violation of the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19 et seq. (West 1988 & Supp. 1997). She alleges that she was discharged and denied termination related benefits on account of her sex, in violation of the NJLAD. Lynch also contends that defendants' conduct toward her constituted a breach of contract and a breach of the implied covenant of good faith and fair dealing. Furthermore, Lynch alleges that defendants maliciously engaged in a course of extreme and outrageous conduct which caused her severe emotional distress. Finally, Lynch claims that during the time she was harassed at New Deal, defendants, in violation of the public policy of the State of New Jersey, wilfully failed to institute appropriate measures to ensure an atmosphere free of gender-based bias and/or discrimination.
A. Whether Lynch Has Adduced Evidence Sufficient To Establish A Claim Of Hostile Work Environment.
To establish a hostile work environment claim, plaintiff must show that the conduct complained of (1) would not have occurred but for the employee's gender; and it was (2) severe and pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment were altered and the working environment was hostile or abusive. Lehmann v. Toys ' R' Us. Inc., 132 N.J. 587, 603-04, 626 A.2d 445 (1993). The second, third and fourth prongs of this test are to some degree inseparable and must be viewed as interdependent. Id.
1. Whether the alleged harassing conduct occurred because of Lynch's gender.
Under the NJLAD, the alleged harassing conduct need not be intentional in order to violate the statute. Lehmann, 132 N.J. at 604. The plaintiff need only establish that the conduct would not have occurred but for her sex. Id. at 604-05. If the harassing conduct is sexual by nature, this element is automatically satisfied. Id. at 605. When the conduct is not clearly sexual or sexist in nature, a plaintiff must establish a prima facie case by showing that the conduct more likely than not occurred because of her sex. Id. This may be achieved by showing that the harassing conduct was accompanied by other harassment that was obviously sex-based or by showing that only women suffered from the harassing conduct. Id. Once she has established a prima facie case, plaintiff invokes a rebuttable presumption that the conduct occurred because of her gender. Id.
Lynch argues that the alleged harassing conduct, particularly Geik's attentions to her, would not have occurred if she were not a woman. She submits evidence that he phoned her at night at the corporate apartment and requested a key for his use. He speculated publicly that she must be having an affair and confided in her about his deteriorating marriage. He commented appreciatively about her body and said her work-outs must be paying off. Lastly, he invited her to exercise with him at his gym and have dinner with him afterwards.
Construing the facts and inferences in the light most favorable to Lynch, the non-moving party, a factfinder could reasonably conclude that Geik's conduct contained an undertone of sexuality that would not have occurred but for Lynch being a woman. Each incident may separately, as defendants argue, have been directed at an individual of either sex. Taken in combination, however, a jury could find that Geik treated Lynch in a manner in which he would not have treated a male co-worker. Lynch has presented enough evidence to invoke the rebuttable presumption that the conduct more likely than not occurred because of her gender. Therefore, Lynch has met the first element of the Lehmann test.
2. Whether the conduct was severe or pervasive enough to make a reasonable woman believe that the working environment was hostile and abusive.
To defeat summary judgment, Lynch must adduce sufficient evidence from which the factfinder could conclude that the harassing conduct was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment." Lehmann, 132 N.J. at 608 (quoting Ellison v. Brady, 924 F.2d 872, 876 (9th Cir. 1991)). It is the harassing conduct that must be severe or pervasive, not the reaction of the harassed individual or the impact it has on the work environment. 132 N.J. at 606.
Rather than considering each incident alone, the court must consider the cumulative effect of all the incidents. Id. at 607. Factors contributing to a hostile environment include the frequency and severity of the conduct and whether it was physically threatening or humiliating. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993).
A plaintiff can establish the requisite level of harm if she demonstrates that the working conditions were affected by the harassment to the point that a reasonable woman would consider the working conditions altered. Lehmann, 132 N.J. at 611-12. The Lehmann court stated that it is appropriate to consider not only conduct directed at the plaintiff, but to her colleagues as well, noting that
the plaintiff's work environment is affected not only by conduct directed at herself but also by the treatment of others. A woman's perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers.
Id. at 611.
Lynch was employed at New Deal for approximately eight months. During those eight months, the female employees of the company, with Pirrone's permission, hired a male stripper for her birthday. Lynch was clearly made uncomfortable by the stripper's performance, but it is undisputed that the female employees of the company instigated and arranged for the stripper to perform for and celebrate Lynch's birthday. The Court does not view this activity, sponsored by Lynch's female co-workers, as contributing to a hostile environment: Sexual harassment is more than the expression of taste.
Lynch also contends that she was subjected to unwanted attention by Geik. Geik invited her to work out at his gym with him and have dinner with him on several occasions. Geik also commented appreciatively about her body, asked her for a key to the corporate apartment she used during the week, and speculated in front of other co-workers that she must be having an affair. He phoned her at the apartment at night to discuss business, but Lynch concedes that he never proposed anything improper. Lynch also admits that when she declined Geik's dinner invitations, he did not pursue the issue further or act in a hostile manner toward her.
In addition to the incidents involving Geik and herself, Lynch has presented evidence showing that several other women were harassed at New Deal. During her tenure at New Deal, Lynch was asked to discharge a female receptionist because she was "too pretty." She heard from Pirrone that Steven Sacharoff had a history of "putting his hands on" women and witnessed examples of this behavior. She also received complaints from Lefebre about Steven Sacharoff's behavior and was asked to comfort Gancarz after he had lifted her into the air. Finally, Lynch witnessed Steven Sacharoff, Geik, and another individual making light of the report that Scott Roberts, an executive of a company affiliated with New Deal, had exposed himself to a female job applicant at his company.
It is not required that the plaintiff suffer an extreme emotional response to the alleged harassment. See Harris, 510 U.S. at 22 ("Title VII comes into play before the harassing conduct leads to a nervous breakdown."). All that is required is that the average woman would consider her work environment sufficiently altered. See Lehmann, 132 N.J. at 608. However, none of these incidents in isolation nor collectively could lead a factfinder to reasonably conclude that any harassing conduct was so severe and pervasive as to permit a finding that the conditions of Lynch's employment were altered.
With regard to Geik's attentions, no reasonable person could characterize his behavior as severe or pervasive harassment. Undoubtedly, Lynch may have found his phone calls and invitations annoying. His one comment about her body, as well as his discussions of his failing marriage, may certainly have been unwelcome. Although a person is legally entitled to a work environment free of hostility, she is not entitled to a perfect workplace, free of annoyances and colleagues she finds disagreeable. In short, what is illegal is a "hostile work environment," not an "annoying work environment."
Looking at the evidence involving other women at New Deal presents a closer question. On three occasions, Lynch was asked to handle the fallout from the harassing conduct of Steven Sacharoff, such as being instructed to fire a receptionist for being "too pretty." She also saw Steven Sacharoff "put his hands on" other female employees.
Even with the evidence of these incidents, no factfinder could conclude that a reasonable woman in Lynch's position would feel that she was subjected to, and affected by, a work environment at New Deal that was so hostile as to alter the conditions of her employment. Certainly, there is no evidence that these incidents were frequent or chronic. Nor could a reasonable factfinder characterize them as severe or pervasive. There is no evidence that Lynch was upset by the incidents at the time of any occurrence or during her employment period. Collectively, they do not rise to the level required to render a work environment hostile and bring it within the purview of the NJLAD. It follows that Lynch has failed to present sufficient evidence to withstand a motion for summary judgment against her claim of hostile work environment.
B. Whether Lynch Can Establish A Claim Of Quid Pro Quo Sexual Harassment.
Lynch contends that she was subjected to quid pro quo sexual harassment constituting actionable sex discrimination in violation of the NJLAD. Quid pro quo sexual harassment occurs when an employer attempts to make an employee's submission to sexual demands a condition of her employment. Lehmann v. Toys ' R' Us. Inc., 132 N.J. 587, 601, 626 A.2d 445 (1993); see also Robinson v. City of Pittsburgh, 120 F.3d 1286, 1997 WL 386102 at *7 (3d Cir. 1997) (establishing similar test under Title VII). "It involves an implicit or explicit threat that if the employee does not accede to the sexual demands, he or she will lose his or her job, receive unfavorable performance reviews, be passed over for promotions, or suffer other adverse employment consequences." Lehmann, 132 N.J. at 601.
Lynch presents no evidence of sexual demands from any individual at New Deal. She states in a conclusory manner that "it is clear that officers and owners of New Deal engaged in quid pro quo sexual harassment" and that if Lynch had accepted Geik's advances she would still be working at New Deal. However, she testified that when she declined Geik's invitations, he did not push the issue further or pressure her to change her mind. She also admits that Geik did not appear hostile toward her as a result of these rejections. However his conduct might otherwise be interpreted, no reasonable factfinder could conclude Geik's attentions ever involved an implicit or explicit threat. Geik's invitations to dinner, without more, cannot be reasonably characterized as the type of sexual demand that would give rise to a quid pro quo claim.
Lynch also presents evidence that McElroy and Gancarz were given large sums of money to leave New Deal after they had complained of sexual harassment. This, however, does not strengthen Lynch's claim of quid pro quo sexual harassment. The Court concludes that Lynch has failed to adduce sufficient evidence to fend off defendants' motion for summary judgment on this claim.
C. Whether Lynch Has Presented Sufficient Evidence to Establish A Claim Of Unlawful Discharge.
The NJLAD prohibits an
employer, because of the . . . sex . . . of any individual . . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment[.]
N.J.S.A. 10:5-12(a) (West Supp. 1997).
The United States Supreme Court established a framework for analyzing claims of discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The New Jersey Supreme Court often looks to this framework and to federal standards in interpreting the NJLAD. See, e.g., Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595-97, 538 A.2d 794 (1988).
Under the McDonnell/Burdine, framework, the plaintiff must first make out a prima facie case, which raises a rebuttable inference of discrimination. Burdine, 450 U.S. at 252-54. If the plaintiff succeeds in doing so, the burden shifts to the defendants to "articulate some legitimate, non-discriminatory reason for [plaintiff's] treatment." Id. at 253. The explanation must be one that would be legally sufficient to justify a judgment for the defendant. Id. at 255-56. The plaintiff must point to sufficient evidence in the record that the reasons proffered by the defendant were not truthful but rather "merely a fabricated justification for discriminatory conduct." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052 (1987). A reason "cannot be proved to be 'a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993) (citations omitted). At all times, the burden of persuasion remains on the plaintiff to prove her case by the preponderance of the believable evidence. Burdine, 450 U.S. at 253.
New Jersey has modified the McDonnell test in the context of discriminatory discharge claims. Clowes, 109 N.J. at 596-97. In order to establish a prima facie case of discriminatory discharge, the plaintiff must prove each of the following elements by a preponderance of the believable evidence:
(1) the plaintiff is a member of a protected class;