On Appeal from Superior Court of New Jersey, Law Division, Camden County, L-11488-94.
Before Judges Baime, Newman and Axelrad.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Jennifer Herman, (references to plaintiff are to Jennifer Herman only) filed suit against her employer, Coastal Eagle Point Oil Company (CEPOC), a subsidiary of the Coastal Corporation (Coastal), the corporation itself, and several of the company's employees, Jack Lipinski, Rich Lowery, Bill Smith, Mark Anderson, Ernie Smith, James Soden, and Mark Schools, alleging sexual harassment and sexual discrimination against her based on marital status and pregnancy, breach of her employment agreement, and subsequent to the filing of the initial complaint, retaliation and a hostile work environment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to - 42. Her husband George filed a per quod claim for loss of consortium.
Plaintiffs' complaint was ultimately dismissed on summary judgment following the entry of a succession of orders which included: (1) Judge Little's April 14, 1997 order granting defendants' motion for summary judgment dismissing the husband's loss of consortium claim, plaintiff's claims of breach of her implied and express employment contract, discrimination against her based on marital status and pregnancy, and all claims against defendant Jim Soden, head operator and trainer of the Sulfulane Recovery Unit, who the judge concluded was not plaintiff's supervisor; the motion was denied as to Jack Lipinski, Plant Manager; (2) Judge Colalillo's September 26, 1997 order granting summary judgment as to Mark Schools, a co-worker in the Sulfulane Recovery Unit; the motion denied was as to supervisor of operations, Ernie Smith, and the employee relations manager Bill Smith; (3) Judge Snyder's October 23, 1998 order granting the remaining defendants' motion for summary judgment dismissing plaintiff's entire second amended complaint alleging sexual discrimination and sexual harassment and finding that plaintiff was not subject to a hostile work environment as claimed against her individual supervisors, Mark Anderson, Jack Lipinski, Ernie Smith, Bill Smith, and Rich Lowery, and alleging malicious breach of employment agreement by the employer; and (4) Judge Snyder's February 10, 1999 order denying reconsideration which requested vacation of all prior orders granting summary judgment.
On appeal, plaintiff raises the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF WAS NOT SUBJECT TO A HOSTILE WORK ENVIRONMENT IN VIOLATION OF THE LAD.
II. THE LAW DIVISION ERRED IN GRANTING SUMMARY JUDGMENT TO THE INDIVIDUAL DEFENDANTS UNDER THE LAD.
III. THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF, GEORGE HERMAN'S CAUSE OF ACTION FOR LOSS OF CONSORTIUM BASED ON COMMON LAW CLAIMS.
After careful review of the entire record and in light of the applicable law, we are persuaded that the complaint was properly dismissed as to all defendants and affirm.
Ordinarily, we would recapitulate the facts in a light most favorable to plaintiff, relying on the support for plaintiff's various statements in the record as cited in plaintiff's brief. We are unable to do so here because the citations to the record in plaintiff's brief do not support plaintiff's allegations. We have, therefore, summarized the facts in a light most favorable to plaintiffs, but on what the record actually supports.
Plaintiff was hired by Coastal on September 21, 1987, to work at CEPOC. On July 2, 1989, plaintiff married George Herman. At that time, both plaintiffs were employed by CEPOC in the Catalytic Reformer Unit (CRU). CEPOC's Employment of Relative Policy (Policy) prohibited the employment of relatives in the plant. As set forth in the Policy, if one employee marries another employee, the Policy requires that one employee be transferred to another division unless an exception is granted by the unit supervisor and Employee Relations. The choice of which employee should transfer is that of the employee. If a transfer cannot be effected, the choice of who is terminated remains with the employees.
Plaintiff first approached representatives of CEPOC regarding an exception to the Policy when she became pregnant in December 1989 and again in September 1990 after her baby was born. During these two initial discussions, plaintiff was advised that either she or her husband would have to leave pursuant to the Policy. Plaintiff again approached CEPOC regarding an exception to the Policy and in March 1991, CEPOC, under the impression that plaintiffs were not yet married, formally approved the exception that allowed plaintiffs to continue to be employed at the plant once they decided to marry. This exception was approved by Jack Lipinski, then Vice President of Refining, via a March 6, 1991 memorandum. However, they were still prohibited from working together in the same unit. Since plaintiff had previously been approved to fill a vacancy in the Poly/Cumene unit of the plant, plaintiffs decided she should transfer out of the CRU.
It is CEPOC's policy that when an employee transfers from one unit to another, the employee is reduced one pay level and classification, until the employee gains training and experience in the new unit. In plaintiff's case, however, an exception was granted and she did not suffer any loss of pay due to her transfer from the CRU to the Poly/Cumene unit in March 1991.
In March 1992, plaintiff was transferred to the Sulfulane Recovery Unit ("SRU") from the Poly/Cumene unit. In late 1993, CEPOC realigned the CRU and SRU under one supervisor. Since this would mean that once again plaintiffs would be in violation of the Policy which prohibited related employees from reporting to the same supervisor, Bill Smith, Employee Relations Manager, obtained a second exception to the Policy on behalf of plaintiffs. The exception was formally approved on January 3, 1994 by Mark Anderson, Plant Manager, by way of inter-corporate correspondence to Jack Lipinski.
The SRU and CRU were subsequently combined into one single operating unit. Bill Smith procured a third exception to the Policy for plaintiffs, allowing them to work together on the new CRU-SRU combined unit.
In December 1989, when plaintiff learned she was pregnant, she requested a transfer out of the CRU as an operator because she did not want to be exposed to the chemicals used in the unit. She was initially offered two options: (1) a position as a receptionist answering phones at half her usual pay; or (2) long term disability. Plaintiff complained that she was being discriminated against due to her pregnancy. Accordingly, Jack Lipinski agreed to allow plaintiff to assume the receptionist position at her normal operator salary during her pregnancy. He also assured plaintiff that she would have her old job back in the CRU upon her return from her pregnancy. To prevent a morale problem, Jack Lipinski requested that plaintiff not inform the other receptionists that she was still receiving her operator's salary.
Plaintiff claims that Lipinski "would take severe disciplinary action against her if she ever revealed to anyone the agreement by which her pregnancy disability was accommodated, which upset plaintiff to the point that she was spot bleeding, and perceived the health of her baby as being jeopardized." However, in her deposition she refers to a conversation with another individual as causing spot bleeding. There is nothing in the record to substantiate the allegation of a causal connection between any possible medical complications related to plaintiff's pregnancy and efforts of CEPOC to accommodate her pregnancy.
Upon her return to work after the birth of her child, plaintiff resumed her position as an operator on the SRU. A memorandum dated October 15, 1990, indicates that plaintiff was administratively eligible for a rate increase effective November 11, 1990. After receiving two weeks of refresher training,
plaintiff's pay was increased. Plaintiff also was required to undergo additional training before being transferred to the Poly/Cumene Unit in May 1991.
On one occasion, while working in the Poly/Cumene unit in 1991, plaintiff alleges that Rich Lowery laughed at her and made reference to her "big butt" in response to the plant doctor telling plaintiff that she was getting skinny. At the time, plaintiff did not complain to anyone about the comment. There is no indication in the record that she told Lowery that she was offended or to stop making such remarks.
She also attributes an incident that occurred on February 3, 1992, as a form of sex discrimination. On that date, plaintiff was required to climb a 130-foot tower and cross a narrow bridge to open a relief valve. Plaintiff's husband, George, assisted her in this task. This caused Lowery to laugh at her in front of other co-workers, which was reported back to plaintiff by Michelle Geist. Lowery contended that he was laughing at the situation because plaintiff was an experienced operator who should not have required assistance. George Herman confronted Lowery the next day. Ernie Smith, the Operation's Manager, then became involved and according to plaintiff, a meeting occurred between plaintiff's husband, Rich Lowery and Ernie Smith, at the end of which, her husband and Rich Lowery shook hands and promised to work together in the future. Plaintiff asserts that one month later, a memo authored by Bill Smith, Ernie Smith and Lowery "which sought to distort plaintiff's performance and to put her in the worst possible light" was clandestinely placed in plaintiff's personnel file. However, there is no ...