On appeal from the Superior Court of New Jersey, Law Division, Union County, L-1608-00.
Before Judges King, Cuff and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff appeals from summary judgment dismissing two of the three counts of her complaint under the New Jersey Law Against Discrimination (LAD) as untimely under the applicable two-year statute of limitations. *fn1 The main issue presented is whether a complaint alleging a hostile work environment created by a series of acts and incidents, all but the last of which occurred more than two years before plaintiff filed her complaint, should be deemed timely as a continuing violation.
The United States Supreme Court recently answered this very question in the affirmative in a case arising under Title VII, involving racially motivated harassment in the workplace. National Railroad Passenger Corp. v. Morgan, U.S. , 122 S. Ct. 2061, L. Ed. 2d (2002). As we shall explain, we deny defendants' motions to dismiss plaintiff's appeal as interlocutory, and grant leave nunc pro tunc. We conclude that plaintiff's complaint was timely filed, and we therefore reverse summary judgments dismissing her complaint against all defendants other than the State. We also affirm summary judgment dismissing certain individual defendants' counterclaims against plaintiff.
Plaintiff, Karen Caggiano, is an Essex County Sheriff's officer. Defendants are Armando B. Fontoura, individually and in his official capacity as the Essex County Sheriff, the County of Essex, the Office of the Sheriff of Essex County, the State of New Jersey, Robert LeFrancis, a captain in the Sheriff's office, and Ronald Tutela, *fn2 a Sheriff's officer. We will refer to Fontoura, Essex County, and the office of the Sheriff collectively as the County defendants.
Plaintiff filed a three-count complaint alleging: (1) harassment and discrimination by all defendants based on plaintiff's gender and sexual orientation in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 (count one) *fn3 ; (2) retaliation by the State and County defendants by being forced to write a report regarding allegations of gender and sexual orientation harassment and discrimination *fn4 (count two); and (3) negligence by all defendants for failing to have in place well-publicized and enforced anti-discrimination and anti-harassment policies, effective formal and informal complaint structures, training, and monitoring mechanisms (count three). LeFrancis and Tutela filed counterclaims for defamation and malicious abuse of process and a cross-claim against Essex County for indemnification. The County defendants brought cross-claims against the State seeking indemnification and representation.
The Law Division judge granted summary judgment dismissing all claims against the State, LeFrancis, and Tutela; partial summary judgment dismissing counts one and three of the complaint against the County defendants; and summary judgment dismissing LeFrancis's and Tutela's counterclaims. Those decisions are reflected in four separate orders signed on September 21, 2000:
(1) granting the State's motion to dismiss plaintiff's complaint against the State and to dismiss the County defendants' cross- claims for indemnification by the State and legal representation of the County defendants by the State (order #1); *fn5
(2) granting LeFrancis and Tutela's motion for summary judgment dismissing plaintiff's complaint against them (order #2);
(3) granting the County defendants' motion for partial summary judgment dismissing counts 1 and 3 of plaintiff's complaint (order #3); and (4) granting plaintiff's motion to dismiss LeFrancis and Tutela's counterclaims (order #4).
The judge substantially granted plaintiff's request to voluntarily dismiss the remaining count two of her complaint (alleging retaliation) and provided by order that plaintiff would be permitted to refile that count as timely within thirty days of a successful disposition of her anticipated appeal of the dismissal of counts one and three.
Viewing the record in the light most favorable to the party opposing summary judgment, as we must, these are the facts. On August 2, 1993, plaintiff began work as a Sheriff's officer in Essex County. She attended an orientation program and received a County of Essex Employee Handbook. Her first position was in the transportation department, where her job was to transport prisoners back and forth from the Essex County Jail Annex in Caldwell for court dates and for medical treatment and to deliver prisoners from State institutions back to County facilities. When not on the road, she worked moving prisoners back and forth between the jail and the holding area for prisoners' court appearances. Plaintiff did this work until December 15, 1997, when she was transferred as a result of the incidents that form the basis for her complaint.
Plaintiff claims that the first incident of harassment took place in or about 1995. While plaintiff was eating at a table in the large room that was both the locker room and the lunch room, Sheriff's Officer Frank Guardabascio said to her, "hey, Kar, what are you eating, snapper for lunch?"
A few months later, while eating lunch, somebody asked plaintiff what she was eating. When she replied that she was eating a potato and egg sandwich, Guardabascio said, "oh, that's right, you don't do the meat." Also in 1995, while plaintiff was standing at the key desk talking to Officer Rocco Romeo, Guardabascio called her "butch," and said "what's the matter, dike, the truth hurts?" Plaintiff slapped him. Guardabascio later apologized to her.
In 1994 or 1995, LeFrancis questioned plaintiff about her knowledge of a gay bar in New York City called Stonewall and about Gloria Steinhem. Plaintiff was offended because she had not told LeFrancis that she was gay and questioned why he was asking her about a gay bar while others were present.
Twice in either 1995 or 1996, plaintiff found "women seeking women" advertisements from a newspaper taped to the outside of her locker. She immediately ripped them down and threw them in the garbage. Plaintiff also remembered that some officers made derogatory comments about gay prisoners but she could not give any details as to who made the remarks or when they were made.
On one occasion, Sheriff's Officer Michael Birmingham offered to lend an adult film to other officers, stating that there were a lot of women on women in it, and adding, "hey, Kar, you'll like this one. You want to watch it?" Plaintiff was disturbed because LeFrancis just laughed and walked away. She thought that she had complained to Joe LeFrank of the Policeman's Benevolent Association (PBA) about this incident. The date of this incident is unknown.
Plaintiff saw Playboy pictures with breasts and buttocks taped to the inside of other officers' open locker doors in the lunch and locker room, and stated that she may have complained to LeFrancis about them in 1995 or 1996. She complained to Sergeant Tommy Colucci, but he said it was a matter of interpretation and that such things were art to some people. LeFrancis told plaintiff that this was "a men's workplace. If you don't like it, go be a secretary somewhere."
In 1996, she asked LeFrancis to move her to an earlier shift, and he responded that "when you have kids, then I'll give you earlier hours." She found this offensive because the selection of hours was based on seniority, and it was harassment to say this to a "gay girl." In July 1997, when LeFrancis learned that plaintiff was offered a job as a patrol officer with the Newark Police Department, he told her, "well, your kind does okay on the street."
Between July and September 1997, Tutela exposed his penis to plaintiff on four or five occasions, and said things like, "hey, Kar, look at this. Or, isn't this pretty? Don't you want some of this? Let me ram this up your a**." *fn6 In the period May through September 1997, Tutela said other sexual things to plaintiff without exposing himself. He said "he wanted to . . . f*** me up the a** and how he wanted to bite my tits," and "come on, meet me at the hotel, we can f*** all night. Come on, I'll f*** you up your a**, I'll eat you, I want to put my fingers up your a** while I'm eating you."
At some point between May and September 1997, plaintiff complained to LeFrancis and to LeFrank about Tutela's conduct and comments. LeFrancis told her that Tutela used to be much worse the first time he was in the transportation department, but now he was much calmer. LeFrank told plaintiff she could file a grievance, but she did not; instead she asked LeFrank to talk to Tutela about his behavior.
On December 3, 1997, plaintiff was speaking to Officer Restaino, and he asked her if it was true that Tutela had exposed his genitals, and she told him that it happened all the time. Plaintiff's partner, Frank Thompson, agreed that Tutela always had his genitals out of his pants. Captain Nicholas Salvato, who was about ten feet away, heard the conversation. The next day, December 4, Salvato instructed plaintiff to write down everything she had told him the previous day. Plaintiff said she did not want to do so, because she needed the job and if she did so, she would be labeled as a rat. She explained that her safety would be in jeopardy, because when a fight breaks out, an officer needs immediate reinforcement. Salvato told her that he would make it easy for her by ordering her to write the report. She consulted with the PBA and ...