On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L- 8249-99.
Before Judges Petrella, Lintner and Parker.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Nancy Velez, a former employee of the City of Jersey City (the City), alleges that defendant Arnold Bettinger, a Jersey City councilman, sexually assaulted her on December 1, 1997. On November 10, 1999, she filed a complaint asserting various common law tort claims, as well as a claim for sexual harassment under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, against both Bettinger and the City. Bettinger answered, denying all the allegations and asserting counterclaims against plaintiff for malicious prosecution and defamation. Bettinger's malicious prosecution claim stemmed from a criminal complaint filed by plaintiff in June 1999 that was presented to a Hudson County Grand Jury, which declined to issue an indictment.
Both the City *fn1 and Bettinger moved for summary judgment in response to which plaintiff filed a cross motion for summary judgment to dismiss Bettinger's counterclaims. The motion judge dismissed plaintiff's common law claims for failure to comply with the notice provisions of the Tort Claims Act, N.J.S.A. 59:8-8. She also dismissed plaintiff's LAD claim against the City on the grounds that it had no notice of any prior sexually discriminatory conduct by Bettinger, and there was no evidence that the City substantially assisted or encouraged Bettinger's alleged misconduct. The judge denied plaintiff's motion to dismiss Bettinger's counterclaims. Plaintiff and Bettinger, however, entered into a subsequent consent order whereby Bettinger voluntarily dismissed his counterclaims subject to reinstatement "[i]n the event plaintiff is successful on any part of her appeal of the summary judgment motion . . . ." *fn2 We reverse the summary judgment order dismissing plaintiff's LAD claims against the City and her common law claim of assault and battery against Bettinger and remand those claims to the Law Division for further proceedings. We, however, affirm the dismissal on summary judgment of plaintiff's common law claims against the City and the remaining common law claims against Bettinger. The following facts were developed in discovery. At the time of the alleged sexual assault, plaintiff was employed by the City in the Neighborhood Improvement Division (NID) and Bettinger, an elected Jersey City councilman, was employed by Hudson County as a division chief in charge of central services. Plaintiff and Bettinger first met in the summer of 1997 when she was assigned by her supervisor to take him on a tour of her territory, which was part of Bettinger's ward. She next saw Bettinger in September 1997 while she was patrolling her territory, at which time she gave him her radio so that he could "call in" a pothole.
In October 1997, plaintiff contacted Bettinger and asked for his assistance in obtaining child support from her former husband. He agreed to help her. After receiving a child support check, plaintiff went to Bettinger's office on December 1, 1997, to thank him for his assistance. Plaintiff alleges that after she thanked him and attempted to shake his hand, Bettinger responded, "[t]his doesn't deserve a handshake, this deserves a hug," and proceeded to hug and kiss her, fondle her breasts and buttocks, and attempt to place his hand between her thighs. She also claims that he "kissed and licked" her face and discussed his political ambitions to "displace" then-Mayor Schundler. Plaintiff claims she struggled and freed herself, after which Bettinger stated, "[a]ll right, goodbye, then, leave my office."
According to plaintiff, she reported the incident to numerous management employees, union officials and co-workers, but the City did not investigate or otherwise respond to her allegations. She asserts that, on December 1, 1997, she reported the assault to Laura Peterson, Code Enforcement Officer; Eufredo Merchan, Field Supervisor; and Frank Hoffman, Field Manager. The following day she reported the assault to John Mateo, North District Supervisor (her direct supervisor and union representative); Charlie Callari, Assistant Director of NID (Mateo's direct supervisor); and Robert Wilson, union president.
Although the specific dates are unclear, plaintiff further claims that she reported the assault to Maureen Corrado, Director of NID (Callari's supervisor); Ms. Lombard, the Business Administrator; Elinor Gibney, Management Specialist; Paul Mackey from the Legal Department; and Bertha Robinson, a co-employee. In March 1999, plaintiff had a conversation with Councilman Vasquez about the assault, at which time she sought a transfer out of NID.
Mateo, Callari, Wilson, and Peterson admitted that plaintiff informed them of her allegations against Bettinger. Callari and Peterson confirmed that they spoke with plaintiff in December 1997. Mateo and Wilson could not recall the dates of their conversations with plaintiff, although the conversations took place sometime after plaintiff spoke to Callari.
None of plaintiff's superiors investigated her allegations or took any remedial measures. Mateo, who had never received sexual harassment training and had never seen the City's policy on sexual harassment, told plaintiff to report the incident to Wilson or Corrado, or take legal action. Wilson, on the other hand, told plaintiff to file a criminal complaint or a union grievance, to which plaintiff responded that she did not think anyone would believe her and she did not want the union to get involved. Other than having a brief conversation with Callari, Wilson did not pursue the matter further.
Wilson and Callari claimed that plaintiff told them she wanted the matter to remain private and asked that they not take any official action in response to her complaint. Nevertheless, according to Callari, he informed plaintiff of his obligation to report her complaint to the City's Business Administrator and gave plaintiff a copy of the City's sexual harassment policy. Callari claimed he also advised plaintiff that, pursuant to the policy, she could file an "official complaint" with the Business Administrator, but plaintiff responded that she did not wish to do so. Callari never had another conversation with plaintiff about her allegations.
After his meeting with plaintiff, Callari informed his superior, Maureen Corrado, of plaintiff's allegations, and also advised Elinor Gibney, the Business Administrator's liaison for sexual harassment complaints. According to Callari, Gibney advised him that, in order for plaintiff's complaint to be pursued, she would have to file a "formal complaint" with the Business Administrator. The record, however, does not reflect that this information was ever relayed to plaintiff.
As of December 1997, Gibney and Larry Ross were the two individuals designated by the Business Administrator to respond to complaints of sexual harassment. Neither Gibney nor Ross recalled, or had any record of, a sexual harassment complaint made by plaintiff in December 1997, nor did they have a recollection or record of receiving such a complaint from Callari. They claimed that the first time they heard about plaintiff's allegations against Bettinger was in June 1999, after plaintiff had filed the criminal complaint. According to Gibney, the sexual harassment policy applicable in December 1997 required complaints to be made in writing, whether by the employees themselves or a supervisor.
Plaintiff alleges that, prior to December 1, 1997, the City did not have in place "adequate training, education, policies and procedures to safeguard its employees . . . from sexual harassment." She also claims that, although she was aware that sexual assault was prohibited, she never received any training on the ...