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Flizack v. Good News Home for Women

December 26, 2001

DEBORAH FLIZACK, PLAINTIFF-APPELLANT,
v.
GOOD NEWS HOME FOR WOMEN, INC. AND ERNESTINE WINFREY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, L-430-99.

Before Judges Baime, Newman, and Fall*fn1.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 28, 2001

Plaintiff appeals from a summary judgment, dismissing her claims against defendants for violations of the Law Against Discrimination (N.J.S.A. 10:5-1 to -42) (LAD), intentional infliction of emotional distress, and breach of contract. She contends that her supervisor's racially charged comment and sexual misconduct created a hostile work environment and caused her severe mental anguish. She also claims that her employer violated provisions contained in its employment manual promising that it would not discriminate on the basis of race or gender. While we find that the contract claim was properly dismissed, we are satisfied that plaintiff's documentary submissions established a prima facie case of sexual harassment, racial discrimination, and intentional infliction of emotional distress.

I.

Because this case was decided by summary judgment, we view the evidence presented in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The evidence assessed under that standard discloses the following facts.

Plaintiff was employed by defendant Good News Home for Women, Inc. (GNH) as a night monitor. GNH is a residential drug and alcohol treatment center for adult women. All of GNH's employees are women. Defendant Ernestine Winfrey is the director of GNH, and was plaintiff's supervisor. Plaintiff is white. Winfrey is African-American.

Following an acrimonious staff meeting, Winfrey approached plaintiff, forcing her to back into a table. Touching plaintiff with the front of her body, Winfrey exclaimed, "Are you still pissed at me . . . [b]ecause if you are I am going to have to stare in them big blue eyes and pat those white titties." Simultaneously, Winfrey stroked plaintiff's breast in a sexual manner. When plaintiff attempted to flee, Winfrey embraced her, again in a sexual manner. Plaintiff was able to escape to the parking lot. Winfrey pursued her, placing her arm around plaintiff's neck and shoulder and "cuddl[ing]" her while attempting to usher her back into the building. Although Winfrey denied that she touched plaintiff in an inappropriate manner, the episode was witnessed by several individuals who corroborated plaintiff's account.

The incident was brought to the attention of GNH's board of directors. A meeting was conducted at which GNH's president of the Board, Jack Welsh, presided. According to Mary Beth Bubert, a board member, Winfrey did not deny plaintiff's allegations, but attempted to "soft-pedal" the incident. Welsh apparently concluded that plaintiff was a "disgruntled" employee who was either "imagining" the incident or "exaggerating" its significance. Bubert expressed the view that Winfrey should have been "monitored and disciplined." Ultimately, Bubert resigned from the board because she did not believe that Welsh considered the incident as "serious[]" and disagreed with his position.

On August 28, 1997, Welsh wrote to Winfrey, admonishing her for using "inappropriate" language. Welsh observed in the letter that "there is no place in our business for offensive or vulgar comments including 'street' colloquialisms or unwanted physical contact." On the same day, Welsh wrote to plaintiff, advising her that Winfrey had been "warned in writing" that "further violations may result in disciplinary actions."

Welsh expected plaintiff to return to work. However, she was unable to do so. It is undisputed that plaintiff suffered severe stress and emotional turmoil as a result of the incident. We need not describe here the extent of plaintiff's disability. Suffice it to say that it was substantial and wholly uncontested.

The judge granted defendants' motion for summary judgment. In dismissing plaintiff's LAD claims, the judge found no evidence indicating that Winfrey's conduct was "gender" or "racially" motivated. The judge concluded as a matter of law that plaintiff failed to establish discriminatory conduct based on sex or color. Although defendants had never contested the severity of plaintiff's mental anguish caused by the incident, the judge found that no evidence had been presented on the subject and dismissed plaintiff's action for intentional infliction of emotional ...


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