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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 Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). However, "a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248 (citation omitted).


Hostile work environment sexual harassment is a form of gender discrimination which violates both federal law and the New Jersey Law Against Discrimination. See Lehman v. Toys `R' Us, Inc., 132 N.J. 587, 601 (1993) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) and Erickson v.Marsh & McLennan Co., 117 N.J. 539 (1990)). In Lehman, the New Jersey Supreme Court's seminal decision in this area, the Court held that in order to prove an actionable claim of hostile work environment sexual harassment under the LAD, a plaintiff must prove that the allegedly harassing and discriminatory conduct about which she complains "(1) would not have occurred but for the employee's gender; and [that] it was (2) severe and pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." 132 N.J. at 603-604. "[E]vidence of specific, tangible adverse changes in the work environment is not required to state" a valid sexual harassment claim under the LAD, as it is "the harassment itself [that] affects the terms and conditions of employment." Taylor v. Metzger, 152 N.J. 490, 507 (internal quotations omitted). Accordingly, a plaintiff need only demonstrate a level of gender-based harassment or discrimination which "would make a reasonable woman believe that the conditions of employment had been altered to the extent that the workplace environment had become hostile or abusive." Baliko v. International Union of Operating Engineers, Local 825, 322 N.J. Super. 261, 276-77 (App. Div. 1999).

In moving for summary judgment on Plaintiff's sexual harassment claim, Defendants contend that there is insufficient evidence in the record from which a jury could reasonably conclude that the conduct about which Plaintiff complains occurred because of her gender. Defendants further contend that, as a matter of law, the conduct alleged, even if gender-based, is not sufficiently severe or pervasive to create an objectively hostile or abusive work environment. Because the Court concludes that most of Plaintiff's allegations of gender-based harassment and discrimination fail to find support in the record, and because that conduct which a jury could conclude was based on Plaintiff's gender is insufficient, as a matter of law, to establish the type of "severe or pervasive" sex-based conduct necessary to create an objectively hostile work environment, the Court will grant summary judgment with respect to Plaintiff's sexual harassment claim.

In determining whether the conduct about which Small complains constitutes sexual harassment as that concept is defined in Lehman, the Court must first evaluate whether there is sufficient proof in the record from which a jury could reasonably conclude that the conduct alleged occurred because of her gender. See Lehman, 132 N.J. at 604. This element "is discrete from the others" and reflects the basic requirement that, in order to state a claim under the LAD, plaintiff must prove "by a preponderance of the evidence that she suffered discrimination because of her sex." Id. ("Common sense dictates that there is no LAD violation if the same conduct would have occurred regardless of the plaintiff's sex."). In hostile work environment cases, the conduct at issue often takes the form of unwelcome sexual touchings and identifiably sexist comments. Id. at 602. However, sexual harassment need not be overtly sexual or sexist in nature; rather, its defining characteristic is that the conduct alleged would not have occurred but for the victim's sex. Id. (citing Muench v. Township of Haddon, 255 N.J.Super. 288 (App. Div. 1992) (observing that non-sexual, gender-based harassment may constitute a violation of the "conditions of employment" provision of the LAD); see also, Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990) (observing that offensive conduct need not be overtly sexual in character in order to constitute sexual harassment under Title VII; all that is required is a showing that gender was a substantial factor motivating the discriminatory conduct and that if plaintiff "had been a man she would not have been treated in the same manner"); McKinney v. Dole, 765 F.2d 1129 (D.C.Cir. 1985) (stressing that sexual harassment need not take the form of explicit sexual advances or other conduct or comments with detectible sexual overtones to constitute actionable conduct under Title VII). "All that is required is a showing that it is more likely than not that the harassment occurred because of the plaintiff's sex. For a female plaintiff, that will be sufficient to invoke the rebuttable presumption that the harassment did in fact occur because of the plaintiff's sex." Id. at 605.

In cases where the alleged harassing or discriminatory conduct is overtly sexual or sexist in nature - as when a plaintiff alleges that she has been "subjected to sexual touchings or comments, or where she has been subjected to harassing comments about her lesser abilities, capacities, or the `proper role' of members of her sex" - the "but-for" element will be automatically satisfied. Id. However, "where the form of the harassment is not obviously based on the victim's sex, the victim must make a prima facie showing that the harassment occurred because of her sex." Id.; see also, Herman v. Coastal Corporation, 348 N.J. 1, 22 (App. Div. 2002) ("If the alleged form of harassment is not sexual in nature, plaintiff must show that the harassment occurred because of her sex."); Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 267 (App. Div. 1996) (noting that if a hostile work environment is alleged to have been created by conduct which is "not sex-based on its face, a plaintiff must make a prima facie showing that the harassment would not have occurred but for her sex."); Muench, 255 N.J.Super. at 248 (observing that "when a hostile environment is created by conduct which is not overtly sexual, `[a] more fact intensive analysis will be necessary . . .'") (quoting Andrews, 895 F.2d at 1482 n. 3). For instance, a plaintiff might show that "such harassment was accompanied by harassment that was obviously sex-based." Lehman, 132 N.J. at 605; see, e.g., Woods, 290 N.J.Super. at 270 (finding that when supervisor's "non-facially sex-based conduct, calling [plaintiff] a `loser' and throwing a softball over her head, is placed in the context of [his] facially sex-based comments, [plaintiff] has made a prima facie showing that it more likely than not would not have occurred if she were a man."). Alternatively, a plaintiff might put forth evidence that would support a reasonable inference that "only women suffered such non-facially sex-based harassment." Lehman, 132 N.J. at 605.

Most of the Small's allegations of gender-based harassment and discrimination fail to find sufficient evidence in the record to satisfy this threshold requirement. For instance, while Small alleges that Brewton frequently "demeaned and intimidated" his female subordinates, she neither offers specific examples of any demeaning comments or conduct, nor provides any evidence that such conduct or comments were directed exclusively at women. See Lehman, ("If a supervisor is equally crude and vulgar to all employees, regardless of their sex, no basis exists for a sex harassment claim."). Small's vague and conclusory allegations that Brewton engaged in more social discussions with the male member's of the sales team and excluded female employees from what she perceived to be his "inner circle" similarly unsupported by any competent evidence in the summary judgment record. To the contrary, Plaintiff's co-worker, Sandy DiMarcello, testified that Brewton's alleged "inner circle" consisted of those employees, including at least one female senior account manager, whom Brewton rewarded for going out of their way to stay late after hours and to do extra work-related tasks. (DiMarcello Dep. at 171:19-172:22; 197:15-23). Considering the lack of evidence supporting Plaintiff's allegations, this testimony seriously undermines any inference that membership in Brewton's alleged "inner circle" was determined based on an employee's gender.

Finally, Small asserts that Brewton "repeatedly" assigned preferential leads and accounts to male members of his sales team that, according to policies described by Brewton in a previous Senior Account Manager's meeting (see Lessig Cert., Exh. J), should have gone to female account managers. However, when pressed in her deposition to provide specific examples of instances in which Brewton displayed preferential treatment to her male co-workers, Small was able to identify only a single instance in which one of the male account manager's on her sales team was permitted to keep a lead on an account which she, as Senior Account Manager for the territory in which the client was based, ought to have been assigned. Plaintiff also complained of another situation in which Brewton broke with his own stated account management policies by transferring a collection of accounts with companies based in her territory to another female senior account manager assigned to a different territory. (Small Dep. at 174:23-176:22). No jury could reasonably infer, based on this testimony alone, that Brewton distributed leads and assigned accounts based on gender and not on a myriad of possible lawful considerations, such as his perceived merit of the salesperson or even his personal dislike for Small.

The Court reaches a different conclusion, however, with respect to Small's allegations of unwelcome and inappropriate touching. Small alleges that Brewton touched her inappropriately on "at least four" occasions. (Id. at 65:1-4). She testified that Brewton twice rubbed the top of her shoulders in a manner which she found both uncomfortable and intimidating. (Id. at 67:23-69:13). She also referred to "several" other incidents in which Brewton touched her arm just above the elbow for a few seconds. (Id. at 71:1-18). Plaintiff testified that while she did not perceive the touchings to be "sexual in nature" - in the sense that she did not believe that Brewton was touching her in a manner that was intended to lead to more intimate sexual contact - she did believe that Brewton was touching her in a manner in which he would not touch a man. (Id. at 472:8-11). Sandy DiMarcello, one of Small's female co-workers, also testified that she and other female employees were touched by Brewton in a similar manner. (DiMarcello Dep. at 207:17-208:11; 209: 8-21; 211:9-212:6). Because there is no evidence that Brewton touched any of his male subordinates in a similar fashion, the Court is not willing to conclude, for purposes of this motion, that a factfinder could not draw a reasonable inference that only Small and other female employees experienced Brewton's touching. See T.L. v. Toys `R' Us, Inc., 255 N.J.Super. 616, 632 (App. Div. 1992) ("when a supervisor makes unwelcome offensive remarks or physical contact with a subordinate employee that would not have been made, but for the sex of the subordinate, such conduct discriminates on the basis of sex."); see also Adan v. Solo Cup, Inc., 2002 WL 448996 at * 5 (N.D.Ill. March 21, 2002) (concluding that a reasonable jury could infer that conduct which is not explicitly sexual was gender-based where "there is no evidence that males in the workplace were subjected to the same type of conduct directed toward [plaintiff]").

This conclusion does not, however, end the inquiry. In order to support an actionable claim for hostile work environment sexual harassment under the LAD, Plaintiff must establish not only that the conduct complained of "occurred because of her gender," but also that "a reasonable woman would consider [such conduct] sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment." Lehman, 132 N.J. at 603. This standard is "in conformity with federal Title VII law," id. at 607; Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 22 (1993) (holding that "conduct which is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview"), and is intended to ensure that federal and state anti-discrimination statutes do not become merely a mechanism for enforcing a "general civility code" for workplace conduct. See Shephard v.Hunterdon Dev. Ctr., 336 N.J.Super. 395, 416 (App. Div. 2001); Heitzman v. Monmouth County, 321 N.J.Super. 133, 147 (App. Div. 1999) ("simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions' of employment"); see also, Lynch v. New Deal Delivery Serv., Inc., 974 F.Supp. 441, 452 (D.N.J. 1997) (Walls, J.) (observing that while a person is entitled to a workplace free of "severe or pervasive" gender-based hostility, an individual is "not entitled to a perfect workplace, free of annoyances and colleagues she finds disagreeable.").

New Jersey courts have identified several factors which may be relevant to the determination of whether the gender-based harassment to which a plaintiff was allegedly subjected is sufficiently "severe or pervasive" to make out an actionable hostile work environment claim, including: the nature of the unwelcome sexual words or gestures; the frequency of the offensive encounters; the severity of the offensive encounters; whether the unwelcome comments or gestures were physically threatening; whether the alleged harasser was a co-worker or supervisor; whether others joined in perpetrating the harassment; whether the harassment was directed at more than one individual; whether the offensive encounters unreasonably interfered with plaintiff's work performance; and whether the offensive encounters had an effect on the plaintiff's psychological well-being. See Baliko, 322 N.J.Super. 261, 276; T.L., 255 N.J.Super. at 637. Because the severity and seriousness of the conduct which is required to establish an actionable hostile work environment sexual harassment claim may vary inversely with the pervasiveness or frequency of the conduct, courts must consider the cumulative effect of the various alleged incidents of harassing behavior, while bearing in mind that "each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes." Lehman, 132 N.J. at 607 (internal quotations omitted).

Applying these broad principles and drawing all reasonable inferences in favor of Plaintiff, the Court is convinced that no reasonable trier of fact could conclude that the few brief instances of non-sexual touching identified by Small, even when considered together, were sufficiently "severe or pervasive" as to cause a reasonable woman to believe that the conditions of her employment had been altered and that her working environment had become hostile or abusive. Although Small's deposition testimony does not specify the frequency with which these alleged incidents of unwelcome touching occurred, from the record it appears that Small experienced Brewton's touching only sporadically over a period of approximately four months. *fn4 Moreover, Brewton's behavior, while perhaps intrusive and unpleasant, appears to have been relatively benign - that is, it was not, as Small concedes, "sexual in nature," nor was it obviously physically threatening. *fn5 While the Court appreciates that, as a general matter, the severity of harassing conduct may be exacerbated when it is alleged to have been committed by a co-worker with supervisory authority, see, e.g., Taylor, 152 N.J. at 503 (noting that the severity of the defendant's patently racist remark was "exacerbated by the fact that it was uttered by a supervisor"); see also Flizack v. Good News Home for Women, Inc., 346 N.J.Super. 150, 159 (App. Div. 2001); Leonard v. Metropolitan Life Ins. Co., 318 N.J.Super. 337, 345 (App.Div. 1999), Brewton's alleged conduct pales in comparison to the nature and severity of the gender-based conduct alleged in numerous other cases in which courts have entered summary judgment against employees complaining of sexually hostile working environments under Title VII. *fn6 See, e.g., Bowman v. Shawnee State Univ., 220 F.3d 456, 463-65 (6th Cir. 2000) (supervisor's rubbing employee's shoulders, grabbing employee's buttocks, and other incidents of offensive touching not severe enough to create hostile work environment); Adusumilli v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir. 1998) (supervisor's four incidents of unwelcome contact with subordinate's arm, fingers, and buttocks, along with repeated sexual jokes aimed at subordinate, not severe enough to create hostile work environment); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (affirming grant of summary judgment based, in part, upon conclusion that incidents where supervisor repeatedly asked employee about her personal life, told her how beautiful she was, asked her out on dates, called her a "dumb blond," put his hands on her shoulders at least six times, placed "I love you" signs in her work area, and tried to kiss her on three occasions were not sufficiently severe or pervasive to create an objectively hostile working environment); Baskerville v. Culligan Int'l Co. 50 F.3d 428, 430 (7th Cir. 1995) (reversing jury verdict in favor of employee based, in part, on the conclusion that the nine specific incidents of offensive and harassing behavior alleged by employee, conduct which included the use of sexual innuendo and one instance of simulated masterbation were not sufficiently severe or pervasive to create a hostile work environment); see also Bonora v. UGI Utilities, Inc., 2000 WL 1539077 at *4 (E.D.Pa. Oct. 18, 2000) (allegations that supervisor "touched [plaintiff's] waist on one occasion, brushed his buttocks against hers on two to four occasions, bumped her backside with a box on one occasion, looked at her chest during a meeting on one occasion, touched her hand on one occasion, and touched her arm on one occasion" were insufficient, as a matter of law, to constitute a hostile work environment); McGraw v. Wyeth-Ayerst Labs, Inc., 1997 WL 799437 at *6 (E.D.Pa. Dec. 30, 1997) (supervisor's repeated requests for date, kissing subordinate without her consent, and touching her face not severe enough to create objectively hostile work environment). Accordingly, the Court concludes that the isolated incidents of brief, non-sexual touching alleged by Plaintiff do not amount to the type of "severe or pervasive" gender-based harassment required to create an objectively hostile and abusive work environment actionable under the LAD, and will, therefore, grant summary judgment of Plaintiff's sexual harassment claim. *fn7


Plaintiff's Amended Complaint also asserts a claim for gender discrimination under the LAD. N.J.S.A. 10:5-12(a) provides that it is an unlawful employment practice "[f]or an employer, because of the . . . sex . . . of any individual, . . . to refuse to hire or employ or to bar or to discharge . . . from employment such individual or to discriminate against such individual in connection with or in terms, conditions or privileges of employment . . ." In order to establish a prima facie case of gender discrimination, Plaintiff must demonstrate, by a preponderance of the evidence, that she: (1) is a member of a protected class; (2) was performing her job at a level that met her employer's legitimate expectations; (3) was affected by an adverse employment action; and (4) that the adverse employment action took place under circumstances which give rise to an inference of unlawful discrimination. Swingle v. Henderson, 142 F.Supp.2d 625, 633 (D.N.J. 2001).

Defendants contend that because Plaintiff voluntarily resigned her position as senior account manager at Office Depot she has not suffered a material adverse employment action and cannot, therefore, as a matter of law, carry her burden of proving a prima facie case of gender discrimination. Plaintiff's counters that there is sufficient evidence from which a finder of fact could reasonably conclude that Plaintiff was "constructively discharged" from her position at Office Depot.

Plaintiff is correct that her resignation may be considered an "adverse employment action" for purposes of the LAD if it is precipitated by circumstances amounting to a constructive discharge. See Hyman v. Atlantic City Medical Center, 1998 WL 135249 at *11 (D.N.J. March 16, 1998), aff'd without op., 189 F.3d 464 (3d Cir. 1999). However, in order to establish a claim for constructive discharge under the LAD, an employee must offer proof that she was exposed to harassing and discriminatory conduct which was "so intolerable that a reasonable person would be forced to resign rather than continue to endure it." Shepherd v. Hunterdon Development Center, 2002 WL 1801194 at * 15 (N.J. Aug. 7, 2002); see also Daniels Mutual Life Ins. Co., 340 N.J.Super. 11, 17 (App.Div.), cert. denied, 170 N.J. 86 (2001) (quoting Muench, 255 N.J.Super. at 302). As the New Jersey Supreme Court has recently observed, this standard "envisions `a sense of outrageous, coercive and unconscionable'" conduct. Shepherd, 2002 WL 1801194 at *15 (quoting Jones v. Aluminum Shapes, Inc., 339 N.J.Super. 412, 428 (App. Div. 2001)), and "requires more egregious conduct than that sufficient for a hostile work environment claim." Id. (citing EEOC v. Univ. of Chicago Hosp., 276 F.3d 326, 331-32 (7th Cir. 2002) (observing that in order to establish a constructive discharge under Title VII a plaintiff must "demonstrate a discriminatory work environment even more egregious than the high standard for hostile work environment") and Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 301 (5th Cir. 2001) (similarly observing that establishing a construct discharge under Title VII requires that plaintiff "demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment claim.")). In light of this standard and the Court's analysis of Plaintiff's allegations of hostile work environment sexual harassment, the Court finds little merit in Plaintiff's claim for constructive discharge. As previously noted, most of Plaintiff's allegations of gender-related harassment and discrimination simply fail to find sufficient support in the record. Moreover, the Court is satisfied that no reasonable jury could conclude that those allegations of gender-based harassment which are supported by the record - "several" isolated instances of brief, non-sexual touching - created working conditions which would be so intolerable to a reasonable woman as to compel her to resign. See Woods-Pirozzi, 290 N.J.Super. at 276 (rejecting a claim of constructive discharge where plaintiff quit her job after being fondled by an elderly security guard and subjected to persistent overtly sexual taunting by her male co-workers). Accordingly, the Court will grant summary judgment of Plaintiff's gender discrimination claim.


Count VI of Plaintiff's Amended Complaint alleges that Defendants unlawfully retaliated against her for objecting to and reporting Brewton's alleged harassing and discriminatory behavior by eliminating a significant portion of her overall compensation for the period beginning January 1, 2000 and ending on April 16, 2000, the date of her resignation. Under the LAD, it is unlawful "[f]or any person to take reprisals against any persons because that person opposed any practices or acts forbidden under [the LAD] or because that person has filed a complaint . . . under [the statute]." N.J.S.A. 10:5-12(d). To establish a cause of action for unlawful retaliation under the LAD, plaintiff must prove "that he or she engaged in protected activity known to the defendant, that he or she was subjected to an adverse employment decision by the defendant and that there was a causal link between the protected activity and the adverse employment decision." Shepherd, 336 N.J. Super. at 418 (App. Div. 2001); Woods-Pirozzi, 290 N.J.Super. at 266-67; Romano v. Brown & Williamson Tobacco Corp., 284 N.J.Super. 543, 548-49 (App. Div. 1995); Jamison v. Rockaway Township Bd. of Educ., 242 N.J.Super. 436, 445 (App. Div. 1990). Once plaintiff has put forth sufficient evidence to establish a prima facie case of retaliation, the burden of production (but not the burden of persuasion) then shifts to defendant to articulate a legitimate, non-retaliatory reason for the adverse employment decision identified. Shepherd, at 418; Woods-Pirozzi at 274; Romano at 549. Plaintiff must then show that "a retaliatory intent, not the proffered reason, motivated defendant's actions." Woods-Pirozzi, 290 N.J.Super. at 274; Romano, at 551. Plaintiff may do so "either indirectly, by proving that the proffered reason is a pretext for the retaliation, or directly, by demonstrating that a retaliatory reason more likely than not motivated defendant's action." Woods-Pirozzi, at 274; Romano at 551.

In 1997, Office Depot eliminated its commission-based compensation structure and replaced it with system of fixed annual salaries, known as the Sales Management System. (Small Dep. at 36:20-23). Later that year, in order to prevent a significant decrease in the overall compensation of those employees whose annual commissions tended to exceed the total annual salary under the new Sales Management System, the company instituted a separate supplementary system of compensation known as "GAP pay." Several employees at the company's Westhampton, New Jersey facility, including Small, who had recently been promoted to senior account manager, qualified for this additional compensation. According to Small, when the GAP pay system was first implemented, she was told that her annual salary would continue to be supplemented so long as she retained her position as a Senior Account Manager. (Id. at 92:17-93:4). She further testified that she does not recall ever being told that her eligibility for GAP pay would be contingent on her ability to achieve certain sales goals or that the GAP pay program could be eliminated altogether without notice. (Id. at 140:13-21; 263:22-264:15).

Small continued to receive GAP pay without interruption until late December 1999, when she was informed during a meeting with Lancaster, the facility's Human Resources Manager, and Reed Hardingham, Brewton's supervisor, that her failure to achieve certain performance goals for the preceding year had rendered her ineligible to receive GAP pay for the year 2000. Small maintains that the timing of Office Depot's discontinuation of her GAP pay, coming as it did soon after she spoke to Lancaster regarding her complaints about Brewton's inappropriate behavior, is sufficient to permit an inference that her compensation was reduced in retaliation for her reporting of Brewton's inappropriate touching.

Defendant Office Depot has, however, proffered a legitimate, non-discriminatory reason for the discontinuation of Small's GAP pay. According to the affidavit of David Trudnowski, the Regional Vice-President for the Mid-Atlantic region of Office Depot's Business Services Division from November 1998 to December 1999, Office Depot's upper management made a decision as early as December 1998 to impose eligibility requirements on the receipt of GAP pay and to eventually "phase out" the program for all participating employees. (Trudnowski Aff. at ¶ 5, attached as Ex. R. to Cert. of Richard J. Cino, Esq.). According to his affidavit, Trudnowski met personally with Small to discuss these revisions to the GAP pay program on January 22, 1999, almost a year before her meeting with Lancaster and Hardingham. (Id. at ¶ 7). The meeting, Trudnowski explains, was part of a broader effort to meet individually with each of the employees at the company's Westhampton facility who would be affected by the changes to the GAP pay program. (Id. at ¶ 7). During his meeting with Small he explained to her that, pursuant to these changes, the GAP program would gradually be "phased out" over a period of four years and that in order to remain eligible for GAP pay during the four year transition period she and other qualified employees would be required to meet ninety percent of her sales goal each year. (Id. at ¶¶ 8-10).

Small testified that she cannot recall having a conversation with Mr. Trudnowski in early 1999 about the modification of the GAP system and insists that her meeting with Lancaster and Hardingham was the first time she can recall being informed that her future eligibility for GAP was contingent on achieving ninety percent of her annual sales goal. (Small Dep. at 42:9-12; 44:3-11; 140:13-21; 263:22-265:11). She does not, however, directly dispute that the eligibility requirements about which she complains were implemented nearly a year before she first reported Brewton's inappropriate behavior and applied uniformly to all Office Depot employees, nor does she dispute that her sales record for the year 1999 fell short of the goal needed to maintain her eligibility for GAP for the year 2000. (Def.'s Statement of Undisputed Material Facts at ¶ 147; Pl.'s Response to Defendant's Statement of Undisputed Material Facts at ¶ 147; Small Dep. at 43:14-16; 108:20-22). There is, moreover, no evidence in the record that would indicate that Office Depot continued to provide GAP pay to employees who failed to achieve ninety percent of their annual goal or which would otherwise cast doubt on the evidence that the discontinuation of Small's GAP pay was based on pre-existing eligibility guidelines which applied uniformly to all qualified employees. For these reasons, the Court concludes that the evidence in the record is, without more, insufficient to support an inference that the elimination of Small's GAP pay was linked to her complaints about Brewton's behavior. *fn8


Defendants also move for summary judgment of Plaintiff's claim for intentional infliction of emotional distress. Because courts are "ill-equipped to punish lack of respect and consideration for one's fellows feelings," New Jersey "has prescribed a heavy burden for one alleging intentional infliction of emotional distress." Obendorfer v. Gitano Group, 838 F.Supp. 950, 955-956 (D.N.J. 1993). In order to be successful on such a claim, Small must prove that Brewton engaged in intentional conduct which was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (citing quoting Restatement (Second) of Torts § 46 cmt. d.). The "limited scope of [the tort of intentional infliction of emotional distress] tolerates many kinds of unjust, unfair and unkind conduct," Fregara v. Jet Aviation Business Jets, 764 F.Supp. 940, 956 (D.N.J. 1991), and "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" Taylor, 152 N.J. at 509 (quoting 49 Prospect St. Tenant's Ass'n v. Sheva Gardens, Inc., 227 N.J.Super. 449, 472 (App. Div. 1988)). This is especially true in the employment context. As the Third Circuit has observed, it is "extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988). Consistent with the limited scope of this tort, this court and other courts in this jurisdiction have often noted that, as a general rule, allegations of sexual harassment, discrimination, and unlawful retaliation will not alone establish a basis for liability. See Marrero v. Camden County Board of Social Services, 164 F.Supp.2d 455, 479 (D.N.J. 2001) (Irenas, J.); Horvath v. Rimtec Corp., 2000 WL 1030357, No. CIV. A. 99-670 (JEI), at *8 (D.N.J. July 19, 2000); Ferraro v. Bell Atlantic Co. Inc., 2 F.Supp.2d 577, 589 (D.N.J. 1998); Borecki v. Eastern Int'l Management Corp. 694 F.Supp. 47, 62 (D.N.J. 1988). Because Plaintiff has not established that Brewton intentionally discriminated against her or subjected her to "severe or pervasive" sexual harassment, and because she has not come forward with sufficient proof of any conduct which would rise above the level of mere threats, indignities, annoyances, or petty oppressions, the Court will enter summary judgment with respect to Count IV of Plaintiff's Amended Complaint. See Ferraro, 2 F.Supp.2d at 589 (concluding that alleged harasser's name-calling, physical intimidation, and violent outburst, while "rude," "unprofessional," and "completely unacceptable," did "not rise to the level of outrageousness necessary to constitute intentional infliction of emotional distress); Hurley v. Atlantic City Police Dep't., 1995 WL 854478, No. CIV. A. 930260 (JEI), CIV.A. 94-1122(JEI), at *12 (D.N.J. Aug. 4, 1995) (holding that sexual harassment of plaintiff by her supervisors and retaliation against her for filing of complaints was not "extreme and outrageous," even where these actions contributed to a "very vicious" and "dangerous" workplace).


For the reasons set forth above the Court will grant Defendants' motions for summary judgment. The Court will enter an appropriate order.

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