On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, L-137-97.
Before Judges Havey, Wefing and Lefelt.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs William Shepherd and Richard Saylor sued their employer, defendant Hunterdon Developmental Center ("HDC"), and several supervisory and management employees for creating a hostile work environment, retaliation, negligent supervision and conspiracy in violation of New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 through -49. Shepherd and Saylor asserted that defendants treated them unfairly because they had assisted two other employees in a successful racial discrimination lawsuit against HDC. Plaintiffs appeal from the trial judge's summary judgment dismissing their entire complaint. The judge ruled that Shepherd's complaint was timely only as to the events that occurred on one specific date and that those events were insufficient to create a cause of action for hostile work environment or retaliation. We affirm some of the dismissed claims in favor of several of the defendants, but reverse and remand because plaintiffs' allegations, read in the light most favorable to them, support the theory that defendants' violations were continuing ones, rendering their complaint timely. In addition, disputed questions of material fact existed regarding plaintiffs' hostile work environment claim and Saylor's retaliation claim against HDC and two supervisors, precluding summary judgment.
HDC is a State-operated facility providing long-term care services for physically and mentally handicapped clients. It consists of several cottages, including Cottage #22 where the plaintiffs worked as staff. Each cottage is divided into eight dorms, with four clients rooming together in each dorm. Cottage #22, thus, had a total of thirty-two clients. All were severely retarded males, some assaultive or self-abusive, ranging in age from twenty to sixty-five years old.
Both plaintiffs Shepherd and Saylor were cottage training technicians in Cottage #22, working the 11 p.m. to 7 a.m. shift with one or two other cottage training technicians. Each cottage training technician was responsible for two to three dorms. Cottage training technicians attend to the clients' needs, fold laundry, perform bed checks every thirty minutes and make sure each dorm is clean. With the exception of an eight-month period, Shepherd worked at Cottage #22 continuously from October 1983 until March 1995. Saylor remained in Cottage #22 from December 1984 until his retirement in August 1995, at the age of sixty- five.
In 1989, racial problems surfaced in Cottage #22. Two African-American employees on plaintiffs' shift, Annie Sampson and Donald Greenfield, sued HDC and their direct supervisors, Mario Sclama and Ida Gal, for discriminating against them and creating a hostile work environment. Sclama and Gal were also plaintiffs' supervisors.
Shepherd and Saylor supported Sampson and Greenfield in the litigation. From 1989 to 1990, they verbally expressed their displeasure about racial discrimination in the cottage, not only to Sclama and Gal, but also to HDC's assistant supervisor of professional residential services and the assistant superintendent. Shepherd wrote an October 18, 1990 statement on behalf of Greenfield. Both Shepherd and Saylor wrote October 12, 1990 statements supporting Sampson. Saylor claimed that he wrote about three to four memos in the early 1990's concerning racial harassment in the cottage. During this period, management at HDC considered Shepherd, Saylor, Sampson and Greenfield all to be "troublemakers."
The hostile environment continued until Sampson and Greenfield were forced to leave the cottage. Things remained relatively quiet until the late summer and early fall of 1994, when the lawsuit came to trial. The lawsuit was tried from October 24 through December 19, 1994 and was won by Sampson and Greenfield. The jury awarded Sampson compensatory damages of $675,000, Greenfield compensatory damages of $335,000, and punitive damages to each in the amount of $252,000.
Beginning in November 1994, when Sclama and Gal had to appear in court for the Sampson and Greenfield law suit, they began to take out their frustrations on Shepherd and Saylor, who were the only two workers left in Cottage #22 who had been there when the earlier racial problems had occurred. Shepherd claimed that Gal said to him, "We're being sued and you and Mr. Saylor are to blame for it." Shepherd was also told that his name had been mentioned at the trial and that "they" were quite upset about it. Plaintiffs also believed that the statements they had previously given regarding the racial problems in Cottage #22 were introduced against the defendants at the trial. Gal also said, on more than one occasion during the law suit, that "what goes around comes around" and that plaintiffs would be "sorry" for not backing the agency and agreeing with her side in the suit. Gal told Shepherd that both she and Sclama would be watching and writing down everything that he and Saylor did. Gal also told Saylor that she was a "survivor" and that she would do whatever she had to in order to survive. Both Shepherd and Saylor understood the comments that were made during the pendency of the trial to mean that they would be harassed as Gal and Sclama intended to get even with them.
From the time of the trial forward, Shepherd and Saylor noticed that Sclama and Gal began to supervise them much more aggressively. Sclama focused on plaintiffs' work "in a very technical sense." Though Sclama had always been a stickler for details, he began criticizing all the little things plaintiffs did that they had been doing the same way for the past twelve years. He spoke to plaintiffs in a hostile, unfriendly, and sharp tone. Sclama never said hello to them anymore and did not engage them in any conversation that was not work-related. While in the past, they had shared meals together or spoken about baseball, Sclama no longer participated and always looked and acted as if he were angry at them.
At Christmas time in 1994, Sclama gave gifts to all the other employees on their shift except for plaintiffs. One time, another worker was allowed to take an extra half-hour break because there was no coffee, but Shepherd was not given the same option. When Shepherd called out sick around Christmas and New Year's, he was put on "medical verification," meaning the management felt he had abused his sick time. After a union grievance hearing on February 3, 1995, Shepherd was immediately removed from medical verification.
One evening in January 1995, Shepherd reported to Gal that a client needed to be medicated. Gal made Shepherd wait three hours before he received the medication. This delay caused Shepherd to have to deal with a very unruly client. In the ordinary situation, a supervisor called for medication immediately or otherwise assisted with the client. In another instance, in early February, Sclama ordered Shepherd to shower a client who had urinated in bed. Previously, the standard operating procedure for this client was to provide dry pajamas and a dry bed and put him back to sleep, without a shower. Because the client was showered in the middle of the night, he became violent, self-abusive and destructive in his dorm room. Shepherd believed that Sclama purposely created this situation to get back at him and make him upset.
On February 10, 1995, after the trial had concluded, another employee in the cottage laughed to Gal and Sclama, in a loud voice, that a newspaper article reported that the State was appealing the verdict and that Sampson and Greenfield would not be getting their money yet. Shepherd believed that defendants had told the employee to make this comment in front of him. Another worker told Shepherd that he had heard from certain supervisors that the superintendent was "mad as hell" and that people were being transferred who had written statements not agreeing with their supervisors. This worker also told Shepherd that it was not too late for him and Saylor to say they were wrong about what happened. Again, Shepherd believed that defendants were behind this conversation. Shepherd also heard Sclama say that people might have to go to jail; Shepherd took that as a veiled threat against him and Saylor.
On April 19, 1995, the assistant supervisor of residential services sent Saylor a "letter of caution" concerning "patterned absences" that Saylor believed was retaliatory. Also, Saylor understood that an employee could be dismissed for having three charges of the same offense sustained against him. Saylor believed that following the lawsuit Sclama was setting him up to be disciplined. In fact, Sclama had written him up twice for coming back late from a break. The cottage training supervisor also charged Saylor with using inappropriate language; on March 3, 1995 Sclama charged Saylor with using the "F" word in front of clients; and on April 5, 1999, Sclama brought disciplinary charges against Saylor for using a certain slang word to refer to a group of people back on January 20, 1995. Saylor was suspended for three days as a result of the first incident; the second incident did not result in any actual discipline against Saylor because he denied the allegation; and the agency could not prove its case against him with respect to the third incident. Saylor feared that Sclama would obtain three discipline convictions against him so he would be terminated before he earned the ten years of service he needed for retirement.
During the trial, both plaintiffs initially refused to put anything in writing to HDC management regarding their complaints because they were afraid of being transferred out of the cottage. However, at the urging of the affirmative action officer, on February 1, 1995, both plaintiffs wrote handwritten letters to HDC's superintendent. They told the superintendent about the retaliation and harassment in Cottage #22 which had started "all over again" and "worse than ever." They identified specific incidents which occurred and named Sclama and Gal as the culprits. Both men identified the emotional stress that this behavior was causing them, and Shepherd in particular noted his desire to remain in Cottage #22, where he had been for twelve years with mostly the same clients, all of whom knew and liked him.
In response to these letters, the superintendent called a shift meeting on February 9, 1995 and scheduled counseling sessions for the shift on March 15, 1995. Plaintiffs claimed that the shift meeting was ineffective, and due to late notice, they were unable to attend the counseling sessions.
Plaintiffs filed complaints with the agency's affirmative action officer. According to the form filed by Shepherd on March 2, 1995, he identified specific dates on which the alleged retaliatory harassment had occurred. The first date was November 30, 1994, and the last was February 27, 1995, or three days before his affirmative action complaint was filed.
During the last week of February or early March 1995, Shepherd requested a transfer to Cottage #7. When Gal found out about his request, she remarked, "[w]e were going to get rid of you anyway." Shepherd began working in the new cottage on March 18, 1995. While the transfer was initially stressful because he had to learn the behaviors and needs of all new clients, Shepherd admitted that he was much happier in his new assignment and that his performance ratings had improved. In fact, his new supervisor referred to him as an "asset."
Saylor filed for retirement on March 17, 1995, and his last work day was in July 1995, with his retirement beginning in August 1995. He claimed that he retired earlier than he otherwise would have because of the harassing behavior of his employer and supervisors.
On December 22, 1995, both plaintiffs received responses to their affirmative action complaints, in which the Department of Human Services concluded that there was no reprisal against them for their participation in the prior lawsuit and that there was no probable cause to support their charges. On January 12, 1996, both plaintiffs appealed that ruling to the Department of Personnel. As of March 22, 1999, the Department had not yet ruled on the appeal.
In the meantime, in May 1995, plaintiffs had filed complaints with the Equal Employment Opportunity Commission ("EEOC"). On Shepherd's application he listed the dates of harm as November 1994 to March 1995 and claimed that the harassment continued until he was transferred to another cottage. The EEOC sent Shepherd a proposed "Charge of Discrimination," and when he returned this form on November 25, 1996, he identified the last date of harm as February 27, 1995. On May 7, 1997, the EEOC advised Shepherd that he had the right to institute a civil action under Title VII of the Civil Rights Act within ninety days.
The trial court noted that the instant complaint was filed on February 27, 1997, and that the last act of harassment or retaliation against Shepherd occurred on February 27, 1995, and the last such act against Saylor occurred on February 10, 1995. The court also noted that the last act of misconduct committed by defendant Gal was alleged to have occurred in December 1994. The court rejected plaintiffs' arguments that the harassment continued until March 18, 1995, the date Shepherd transferred and until August 1995 for Saylor, the date he retired. The judge also rejected plaintiffs' contention that the continuing violation theory applied in this case.
Therefore, the trial judge concluded that all of Saylor's claims were time-barred, including his constructive discharge claim. Regarding the one actionable event that occurred on February 27, 1995, the court noted that Shepherd alleged that Sclama was unfriendly and nasty to him all night during his shift. Sclama did not talk to Shepherd but was very friendly with another cottage training technician and talked and joked with her most of the night. Shepherd claimed he felt sick and tense because of this treatment. The trial judge noted that there was no adverse employment decision taken as a result of this conduct and no altering of the terms or conditions of Shepherd's employment. The judge concluded that the February 27 conduct was not sufficiently severe or pervasive to be actionable.
The court also found that plaintiffs failed to establish a factual issue leading to the individual liability of Gal and Sclama. The court believed that there was no evidence that any supervisor abused their authority to create a hostile work environment. Accordingly, the judge granted summary judgment in favor of all defendants on all of plaintiffs' claims.
A two-year statute of limitations governs LAD claims. Montells v. Haynes, 133 N.J. 282, 292 (1993). Plaintiffs acknowledged that the defendants began their retaliatory actions against them in November 1994, shortly after Sampson's and Greenfield's discrimination case came to trial. Because the complaint was filed on February 27, 1997, however, plaintiffs had to show that their cause of action accrued no earlier than February 27, 1995. Ali v. Rutgers, ___ N.J. ___ (2000). A cause of action accrues when the right to institute and maintain a suit first arises. Holmin v. TRW, Inc., 330 N.J. Super. 30, 35 (App. Div.), certif. granted, ___ N.J. ___ (2000). Thus, unless the continuing violation theory applies, plaintiffs' suit was time- barred.
The continuing violation theory is an equitable exception to the statute of limitations. Bolinger v. Bell Atlantic, 330 N.J. Super. 300, 306 (App. Div.), certif. denied, 165 N.J. 491 (2000). In Ali v. Rutgers, supra, ___ N.J. at ___, the Court noted that when an individual is subject to a continual and cumulative pattern of tortious conduct, the statute does not begin to run until the wrongful action ceases. See also Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999). "'[O]nce a pattern of harassment has created a psychologically offensive work environment, the status quo of such continuous wrongful conduct can be based on the harasser's mere presence.'" Id. at 272-73 (quoting Bustamento v. Tucker, 607 So.2d 532, 541 (La. 1992)(citations omitted)). Thus, when the acts are continuous "'on an almost daily basis, by the same actor, of the same nature, and the conduct becomes tortious and actionable because of its continuous, cumulative, and synergistic nature,' the statute of limitations period does not commence until the final act has occurred or the conduct has ceased." Wilson v. Wal-Mart, supra, 158 N.J. at 273 (quoting Bustamento v. Tucker, supra, 607 So.2d at 542); Bolinger v. Bell Atlantic, supra, 330 N.J. Super. at 306.
For discriminatory conduct to fit within the continuing violation doctrine, it must be intentional, pervasive, and regular and consist of more than the occurrence of isolated or sporadic acts. In addition, the plaintiff must demonstrate that at least one act of harassment or discrimination occurred within the filing period. West v. Philadelphia Elec. Co., 45 F.3d 744, 754-56 (3d Cir. 1995); Bolinger v. Bell Atlantic, supra, 330 N.J. Super. at 307; Beck v. Tribert, 312 N.J. Super. 335, 346 (App. Div.), certif. denied, 156 N.J. 424 (1998). It is improper for an employee to invoke the doctrine to resurrect grievances "long past" by appending them to a current complaint. Erdmann v. Board of Educ. Union County Reg'l High School Dist. No.1, 541 F. Supp. 388, 392 (D.N.J. 1982).
To determine whether alleged violations are continuing, we must consider the subject matter of the violations (i.e., whether they are of the same type), their frequency and their permanence. West v. Philadelphia Elec., supra, 45 F.3d at 755 n.9; Bolinger v. Bell Atlantic, supra, 330 N.J. Super. at 307. It is recognized that hostile work environment claims often "straddle both sides of an artificial statutory cut-off date," West v. Philadelphia Elec., supra, 45 F.3d at 755 (citation omitted), and that to establish these claims, evidence is often relied on concerning events occurring long before the relevant filing periods. Ibid. The analysis should concentrate not on individual incidents, but on the overall scenario and the work atmosphere as a whole. Id. at 756.
It bears repeating in this case that on a motion for summary judgment, the evidence presented must be "viewed in the light most favorable to the non-moving party," and all inferences must be drawn in favor of that party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535-36, 540 (1995). Here, Shepherd alleged that defendants continued to discriminate against him until he transferred out of Cottage #22, on March 18, 1995, and that the court erred in focusing only on his handwritten notes and on the documents he submitted with the administrative grievance he filed with the Department of Personnel.
Shepherd's administrative grievance was filed on March 2, 1995, only three days after he alleged that the so-called last harm occurred. However, Shepherd remained in Cottage #22 another two weeks, and there is no evidence that anything changed. Sclama and Gal remained his supervisors and nothing dissipated whatever antipathy they felt toward Shepherd for his role in the discrimination law suit. Thus, it was reasonable to infer that the same conduct he had been subjected to for the prior three or four months continued. Moreover, in his EEOC complaint, filed several months after Shepherd's administrative grievance, Shepherd ...