The opinion of the court was delivered by: Bassler, District Judge
Defendants United States Post Office (William J. Henderson, Postmaster General) ("USPO") and Jeffrey Brents ("Brents") (collectively "Defendants") move separately for summary judgment on this sexual harassment/hostile work environment case. Plaintiff Lorraine A. Kokinchak ("Plaintiff") cross moves for partial summary judgment.
For the following reasons, Defendants' motions are granted. Plaintiff's cross motion is dismissed as moot.
As a threshold matter, the Court notes that Plaintiff does not dispute many of Defendants' factual assertions. Instead, Plaintiff's "Statement of Facts" merely contains broad unsupported factual allegations and legal conclusions. To the extent that Defendants' statements of facts are uncontested and absent evidence to establish otherwise, the Court will deem such facts as admitted by Plaintiff. See Hill v. Algor, 85 F. Supp.2d 391, 408 n.26 (D.N.J. 2000) ("facts submitted in the statement of material facts which remain uncontested by the opposing party are deemed admitted.")
Plaintiff has been employed by the United States Post Office in various capacities for approximately 20 years. She is currently employed by the Post Office as a "floor expeditor." She is a member of Defendant American Postal Workers Union, AFL-CIO Red Bank Local ("Local") and is also a member of Defendant American Postal Workers Union, AFL-CIO ("APWU").
Defendant Brents was also an employee of the USPO and a member of the Local and of the APWU. Although Brents was not an employee of either the Local or the APWU, he was a shop steward *fn1 for the Local.
Plaintiff claims that on numerous occasions between 1996 and 1999, Brents spoke to her and touched her in sexually inappropriate ways. Brents' first inappropriate conduct towards Plaintiff was in 1996 when while visiting Plaintiff's home, Brents dropped his pants and exposed himself to her. (Transcript of May 18, 2000 Arbitration Proceeding attached to Certification of Daniel J. Gibbons ("Gibbons Cert.") as Ex. 1 ("Arb. I"), at 32:17-35:19.) Brents also allegedly exposed himself on one other occasion in the fall of 1996, asking her "how do you like it, it wasn't even hard yet." (Plaintiff's Deposition Transcript attached to Gibbons Cert. as Ex. 5 ("Pl.'s Dep. Tr. II"), at 136:11-17.) Although Plaintiff cannot recall the specific instances, on other occasions between 1996 and 1999, Brents purportedly touched her on her breast and crotch at least two times, and made facial expressions at Plaintiff, including licking his lips and making other sexual gestures. (Arb. I, at 37:25-40:11; Pl.'s Dep. Tr. II, at 107:6-14.)
Plaintiff claims that in between these incidents, Brents would "lull" her into believing that the improper conduct would stop by doing nothing objectionable for periods of time before committing another offensive act. (Plaintiff's Deposition Transcript attached to Gibbons Cert. as Ex. 4 ("Pl.'s Dep. Tr. I"), at 140:1-6.) According to Plaintiff, Brents' misconduct only occurred when they were alone or when no one else could see it. (Id. at 174:1-11; Pl.'s Dep. Tr. II, at 107-3:109-16.)
Then on March 9, 1999, Brents allegedly touched Plaintiff's breast and behind once again. (Pl.'s Dep. Tr. I, at 151:16-153:3.) Plaintiff yelled at Brents to stop and left the office. (Id. at 153:4-7.) A supervisor, J.C. Johnson, ("Johnson") noticed that Plaintiff was upset and informed the senior supervisor of the shift, Ann Rolands ("Rolands"), who immediately spoke to Plaintiff, took her statement, and initiated an investigation. (Id. at 154:7-160:16.) Once management was alerted to Brents' conduct and started the investigation, the sexual harassment stopped. (Id. 180:18-181:15.) Moreover, as a result of that investigation, Brents received a 14 day suspension without pay, which Brents appealed through the union grievance procedure. (Pl.'s Dep. Tr. II, at 136:14-137:10; Certification of Dan Hill ("Hill Cert."), at ¶ 3.)
Until that episode on March 9, 1999, the USPO managers had not received any complaints that Brents was sexually harassing Plaintiff. Plaintiff concedes that prior to March 9, 1999, she did not complain to anyone with supervisory or managerial authority at the USPO about Brents. The USPO asserts that Plaintiff was aware at all relevant times that the USPO had strict policies against sexual harassment, that she was aware of posters and phone numbers for assistance, and that she had received a satisfactory response from management when she complained to supervisors about sexual remarks made by another employee, Rick Velardi. (Pl.'s Dep. Tr. I, at 38:2-48:24, 143:10-144:5.)
Thereafter, while Plaintiff was working as the "inside expediter," and Brents as the "dock expediter," positions that required them to communicate with each other over the radio in order to coordinate the movement of the mail, Plaintiff complained about Brents' "sly remarks" and the "tone of voice" he used over the radio on several occasions. (Id. at 184:15-185:10.) At Plaintiff's request, management removed Brents from the expediter's position. (Id. at 185:11-14.) Plaintiff also testified that once in June 1999, Brents "glared" at her. She did not report the glaring to management.
Finally, on March 17, 2000, a co-worker informed Plaintiff that someone had scratched "F*** Lorraine" on a desk, but that another co-worker had already taken steps to remove the remark. (See Hill Cert. at ¶ 2.) Plaintiff immediately complained to a supervisor. Although management investigated the incident, they were unable to determine the identity of the writer. (Id. at ¶ 6.) Nevertheless, the supervisor talked to Brents about the incident, warning him of the consequences of sexual harassment. (Id. at ¶¶ 4-5.)
The next day, Plaintiff left the USPO and did not return to work there until shortly after her deposition in this case. At Plaintiff's request, she was assigned to a different facility from where she and Brents once worked.
Kathy Boss ("Boss") was also a postal employee. In April of 1996, Brents allegedly exposed himself to Boss by dropping his pants. (Transcript of August 15, 2000 Arbitration Proceeding attached to Gibbons Cert. as Ex. 2 ("Arb. II"), at 66:2-19.) Boss did not report that incident to any supervisor or manager. (Id. at 75:4-25; 78:1-18.) Subsequently, Brents and Boss entered into a consensual sexual relationship, despite the fact that both were married to others. As a result, Boss became pregnant. After Brents' wife learned of the pregnancy, the affair turned bitter and Boss sued Brents for child support.
While Plaintiff heard gossip about the pregnancy, she did not hear any rumors that Brents had sexually harassed Boss. (Pl.'s Dep. Tr. I, 93:21-94:15.)
On or about June 4, 1997, Boss wrote a letter to the Postal Inspection Service *fn2 ("June letter") alleging that Brents was manipulating employee time records in his position as timekeeper. (June 4, 1997 letter attached to Gibbons Cert. as Ex. 6, LK-10.) In the letter, Boss also complained that Brents was bothering her and that she considered his conduct to be a "form of sexual harassment and retaliation because [she] is about to deliver his child." Further, the letter mentioned that Brents had had sex with other women and that he had exposed himself to other women in the facility. (See id.)
Donna Bellows ("Bellows"), a Postal Inspector with the Postal Inspection Service, spoke with Boss to investigate Boss' allegations. (Bellows Cert. at ¶ 3.) After interviewing Boss, Bellows referred the timekeeping allegations to another unit of the Postal Inspection Service responsible for investigating complaints of employee fraud. (Id.) While Boss indicated that Brents was bothering her as a result of the former consensual sexual relationship and that Brents had had consensual affairs with other women at work, she did not make any allegations that he had engaged in non-consensual sexual activity. (Id. at ¶ 4.) Nevertheless, Bellows told Boss that if she believed that she was being subject to sexual harassment, she could make a complaint to the Postal Service EEO Office or to her managers. (Id. at ¶ 5.)
b. August 28, 1998 Letter
On August 28, 1998, Boss wrote a letter to Veto Cetta ("Cetta"), the District Manager for the USPO ("August letter"). In the letter, Boss complained that Brents roamed the facility as he pleased, that he was antagonizing and stalking her, and that there were rumors circulating about their affair. (August 28, 1998 letter attached to Gibbons Cert. as Ex. 6, LK-9.)
In response to Boss' August 1998 letter, Arnie Endick ("Endick"), an Employee and Workplace Intervention Analyst, *fn3 attempted to speak with both Boss and Brents in the presence of their managers and supervisors. (Id. at ¶ 4.) He explained the USPO's policies regarding workplace behavior and also provided them with copies of the Code of ethical Conduct and the District Zero Tolerance Policy on workplace violence. (Id. at ¶¶ 4-5.) Endick further explained to Brents and Boss the formal Protest Process under the Employee and Labor Relations Manual. (Id. at ¶ 6.)
Boss and Brents declined to discuss their concerns with Endick or with each other. (Id. at ¶ 7.) At no time during the meeting did Boss indicate to Endick that Brents had exposed himself to her or to any other women. (Id. at ¶ 11.) Nor did she indicate that Brents otherwise sexually harassed women or engaged in any non-consensual sexual activity. (Id.)
Plaintiff filed this action on October 13, 1999. In her complaint, Plaintiff alleges that Defendants are each liable under 42 U.S.C. § 2000e, et seq., ("Title VII") and the New Jersey Law Against Discrimination ("LAD"). *fn4 In addition, Plaintiff's complaint includes claims for negligent and intentional infliction of emotional distress against Brents. (Amended Compl., ¶ 31.)
Defendants APWU and the Local moved for summary judgment. This Court granted those motions and dismissed APWU and the Local from this action by ...