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Small v. Office Depot

September 4, 2002


The opinion of the court was delivered by: Irenas, District Judge


Plaintiff instituted this action against her former employer, Office Depot, Inc., and former supervisor, Daryl Brewton, on September 20, 2001, alleging that Defendants subjected her to gender discrimination, hostile work environment sexual harassment, and unlawful retaliation in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1, et. seq. (Count I, III, and VI). *fn1 Plaintiff's amended complaint also asserts claims for common law hostile work environment sexual harassment (Count II), negligent and intentional infliction of emotional distress (Count IV), violations of federal and state wage and hour laws (Count V), and violation of public policy (Count VII). As the parties are completely diverse and the amount in controversy exceeds $75,000, exclusive of costs and interest, this Court has jurisdiction pursuant to 28 U.S.C. § 1332.

Currently before the Court are Defendants' motions for summary judgment on all six counts of Plaintiff's Amended Complaint. For the reasons set forth below, the Court will grant Defendants' motions for summary judgment. *fn2


Plaintiff Phyllis Small, a resident of New Jersey, became an employee of Office Depot, Inc. ("Office Depot"), in 1994, following Office Depot's acquisition of her previous employer Yorkship Business Supplies. Plaintiff worked at Office Depot's facility in Westhampton, New Jersey, as a member of the company's Business Services Division, a direct sales force, delivery and warehousing operation that sells office supplies to businesses throughout the Northeast. In 1997, Small was promoted to the position of senior account manager, a position she continued to occupy until her resignation in April of 2000. *fn3

In September of 1999, Office Depot hired Daryl Brewton ("Brewton") as the new District Sales Manager responsible for supervising Small's sales team. Over the course of the next four months, Small and other members of her sales team, both men and women alike, became increasingly critical of Brewton's management style and were displeased by what they perceived to be a general "atmosphere of negativity" in the workplace. (Small Dep. at 22:11-25:10; 28:2-30:1, attached as Exhibits C, D, and E of Lessig Cert. (hereinafter "Small Dep.")). Small testified that she and other employees also experienced uncertainty about the security of their positions with the company. (Id. at 25:11-17; 28:2-21).

According to Small, her own interactions with Brewton were marked almost from the start by unwelcome physical contact and other forms of allegedly harassing and discriminatory behavior. Small alleges, for instance, that Brewton touched her on "at least four" occasions in a manner which made her feel "intimidated" and "uncomfortable." (Id. at 65:1-3; 67: 5-7). She testified that on two occasions, Brewton stood behind her and rubbed her shoulders for approximately 15 seconds. (Id. at 67:23-69:13). The second time this happened Small leaned forward and pulled away from him to try to get him to stop. (Id. at 69:16-24). She further testified that on "several" other occasions, Brewton touched her on her arm just above the elbow for a "few seconds." (Id. at 71:1-18). With respect to each of these incidents, Small explained that while she did not interpret Brewton's touching to be "sexual in nature," she did feel "intimidated" and "uncomfortable" and believed that he was touching her in a manner in which he would not touch a man. (Id. at 472:8-11).

Small further alleges that Brewton "treated his female subordinates in a manner which made them feel demeaned and isolated, while displaying a much more supportive attitude with the male team members and drawing them into his inner circle." (Pl.'s Opp. Br. at 17; Small Dep. at 180:3-17). She also claims that Brewton discriminated against her and her female co-workers by "assign[ing] preferential leads and accounts to male members of his team in instances where under Office Depot policy, they should have been awarded to" female account managers. (Pl.'s Opp. Br. at 18; Small Dep. at 174:23-175:3).

In December 1999, Small confided her unhappiness with Brewton to Jim McKabe, a marketing manager in another division and an "old friend" of hers. (Small Dep. at 45:18-48:11). Although she is unable to recall many of the details of their conversation, Small testified that she told McKabe that she felt "very unhappy" with her "work environment" and was worried about her "job security." (Id. at 46:8-23). Small also explained that Brewton had been making what she perceived to be "veiled threats" intended warn his team members against going "above him" to complain to his supervisors. (Id. at 49:12-50:8). Small did not specifically request that McKabe do anything in response to her complaints, but did inquire whether McKabe had any positions available in his division. (Id. at 47:2-48:5). McKabe explained that the only position available was one which he believed Small was not likely to be interested in, but told her that he was "concerned" about her and promised to "keep an eye out for [her]." (Id.).

Later that month, Small spoke with Jeff Lancaster, the facility's Human Resources Manager, about Brewton's inappropriate conduct. (Id. at 58:19-59:7). She reported that Brewton had "put his hands on [her]" in a manner which made her feel "very uncomfortable," but that she was "too intimidated to tell him to stop" and afraid of some "type of retaliation" if she did so. (Id. at 59:3-6). She told Lancaster that she felt "very, very threatened" and "very uncomfortable" and that she wanted her concerns about Brewton's conduct placed "on the record" in case things became "unbearable" and she found it necessary to take further action. (Id. at 74:2-10). She requested that Lancaster keep their conversation confidential (Lancaster Dep. at 66:20-24, attached as Ex. H to Lessig Cert. (hereinafter "Lancaster Dep.")) and explained that she was worried about him saying anything to Brewton because she feared that Brewton would retaliate against her by having her terminated or demoted. (Small Dep. at 60:12-17; 125:10-23). Lancaster acknowledged her concerns and recommended that she speak directly with Brewton. (Id. at 59:6-7). He later telephoned Brewton and advised him to be more sensitive to the need to avoid invading his employee's personal space, but took no further action. (Lancaster Dep. at 70:7-23).

On January 27, 2000, Small was on her way home from the airport after returning from a trip to Florida when she suffered what was later determined to be a severe panic attack. (Small Dep. at 153:23-154:11). According to Small, the attack lasted for several hours and was brought on by the overwhelming stress associated with Brewton's alleged harassing and discriminatory behavior. In describing the incident in her deposition, Small explained that the thought of returning to work so overwhelmed her that she lost her breath and began uncontrollably shaking. (Id. at 154:4-9). Lynn Adams, Small's therapist, referred her to Dr. Amita Talati, a psychiatrist, who diagnosed her with clinical depression and panic disorder with agoraphobia. (Id. at 7:18-8:4; Lessig Cert., Ex. I). Small was placed on anti-depressant medication and, based on her physician's advice, took a leave of absence from Office Depot for approximately eleven weeks. On April 16, 2000, just as her medical leave was scheduled to expire, Small drafted a formal letter of resignation containing a detailed list of grievances against Brewton and other members of Office Depot's new management. (See Lessig Cert., Ex. J). In the letter, Small stated that, as result of various conduct which she alleged to have contributed to a "hostile" working environment, she had "no choice" but to resign her position with the company and seek alternative employment opportunities. (Id.).

On or about September 18, 2000, Small filed a complaint against Office Depot and Brewton in the Superior Court of New Jersey asserting claims for, inter alia, hostile work environment sexual harassment, gender discrimination, unlawful retaliation, and negligent and intentional infliction of emotional distress. The case was removed to this Court on October 12, 2000, and, at the conclusion of discovery, Defendants filed the instant motions for summary judgment.


"[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex ...

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