On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-986-98.
Before Judges Pressler, Axelrad and Hoens.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Carol Tarr brought this hostile work environment sexual harassment complaint against defendant Bob Ciasulli and various of his wholly owned corporations and their employees. Following both voluntary and involuntary dismissals, the only defendant remaining when the case was submitted to the jury was Bob Ciasulli's Mack Auto Mall, Inc. (Mack Auto Mall). By its answer to special interrogatories, the jury found that plaintiff had indeed been the victim of proscribed sexual harassment in the workplace but that she had suffered no economic loss. Although no compensatory damages, and hence no punitive damages, were therefore awarded plaintiff, the court granted plaintiff's attorney a counsel fee concluding that because plaintiff had proved a sexually harassing hostile workplace, she was a prevailing party despite her failure to prove damages. Plaintiff appeals from the dismissal during trial of her claim for emotional distress and from the dismissal of her action as against defendants Bob Ciasulli (Ciasulli), individually, and Bob Ciasulli Auto Group, Inc. (Auto Group). All three defendants appeal from the order granting a counsel fee. We reverse the orders dismissing the emotional distress claim and dismissing the complaint as against Ciasulli individually, and we remand for a new trial on the damages issues, both compensatory and punitive, and for determination of the liability of Bob Ciasulli. We affirm the order dismissing the complaint as to Auto Group, and we affirm the counsel fee order challenged on the cross-appeal.
We address the issues raised by plaintiff in the context of the trial proofs. Because the emotional distress claim and the complaint against Ciasulli and Auto Mall were dismissed at trial for insufficiency of supporting evidence pursuant to R. 4:37- 2(b), our inquiry as to those issues is limited to the question of whether the evidence was adequate to demonstrate a prima facie case. And although we recognize that there was evidence to the contrary, we consider the trial proofs, as we are required to, in the light most favorable to plaintiff. See, e.g., Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-510 (1999); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). We conclude that the trial judge took an unduly restrictive view of the requisite elements both of emotional distress in the context of proscribed discrimination and of employer liability in that context. Accordingly, we are satisfied that these claims should have gone to the jury.
This is what plaintiff's proofs show. Plaintiff, experienced in the retail automobile business, began working for Mack Auto Mall in Toms River in late July 1994 as a finance and insurance manager. Her immediate supervisor was a woman, Kelly Signorin Bragg. Bragg's male supervisor was Pat Grimaldi, the general manager of Mack Auto Mall. As we understand the record, at the time of plaintiff's employment, Mack Auto Mall consisted of four separate automobile franchises. The finance and insurance function for all four franchises was centralized in the Pontiac-Cadillac building where plaintiff and Bragg shared space which was partitioned but not entirely closed off from the sales floor. Grimaldi's office was also in that building. The finance and insurance job included supervision of bank contracts, the sale of extended warranties and insurance, and the sale of after-market items. Plaintiff's salary was based on commissions on the sales of these services. The paperwork on automobile sales came to her from the salesman in an envelope referred to as a deal jacket. Plaintiff continued to work in that position until July 1995, when she left, assertedly because of the sexual harassment in the workplace. She returned, however, in August 1995 and remained until April 1996 when she again resigned assertedly for the same reasons.
According to plaintiff's testimony, there was a considerable amount of swearing, cursing, and use of foul language as part of the dealership ambience which she regarded as routine in that business and by which she was not offended. What she did find to be intensely offensive to the point that she could no longer tolerate the working environment was the virtually continuous sexually explicit insults to which she was subjected by several of the male employees; the toleration of this conduct by Grimaldi and indeed his participation therein; and the regularity, in her presence, of degrading sexual conversation among the salesmen and their regular display of pornographic materials. The group of particularly offensive male employees included Chris Tashler, Joe Angelini, Ed Costello, Robert DiSantis and Pete Rinaldi, whose conduct plaintiff referred to as disgusting, horrid, and awful. One or another or all of them habitually referred to women generically in the most demeaning gutter slang. They bragged loudly of their sexual exploits in the most explicit and crudest terms, including exploits with minors, and drew attention to their own genitals. The explicit sexual remarks they made on a daily basis directly to plaintiff were well below the lowest common denominator of decency in both content and language and were made with the sole and successfully executed purpose of causing her intense embarrassment and humiliation. The remarks were, moreover, occasionally made in the presence of third persons not connected with the dealership such as wholesalers who had come to buy used cars. Angelini, who apparently fancied himself as something of an artist, drew sexual organs, both male and female, on the deal jackets he handed over to her for processing. Grimaldi, who heard much of the offensive conversation did not, plaintiff said, make any effort to stop it and himself subjected her to sexual harassment by such conduct as suggesting she further unbutton her blouse in order to sell a warranty and making sexual innuendoes when she bent down to pick something off the floor. She finally left after a particularly crude, degrading, and humiliating remark by Tashler.
Although plaintiff asserted that the sexual harassment had forced her to leave the first time in 1995, she nevertheless returned because she needed a job and Bragg, who was also subjected to the same sexual harassment, had assured her that things had gotten better. While she was, in fact, earning a high salary, she could not, she asserted, remain any longer in that intolerable and abusive environment, she "couldn't take it any more." Bragg, who corroborated plaintiff's testimony, related the sexual harassment to which she was also subjected, maintained that her complaints to Grimaldi on both her own account and plaintiff's were ignored or laughed at, and explained that she left her job shortly after plaintiff did because of the sexual harassment and that she also filed a sexual harassment complaint against Ciasulli. In sum, we are satisfied that our characterization of the sexually explicit remarks as despicable, insulting, reprehensible, crude, gross, demeaning, and contemptible hardly begins to convey the flavor of their affront. None of the male employees testified. Grimaldi, who testified under subpoena served upon him with difficulty, denied any untoward conduct.
Plaintiff's testimony respecting her response to the abusive environment to which she was subjected for as long as she could tolerate it was not extensive. Although she apparently had mental health care after leaving Mack Auto Mall, she chose not to offer expert testimony. She testified only to her acute embarrassment and humiliation, explaining that Tashler's remarks, particularly in the presence of persons not employed by the dealership, made her turn "beet red" and "want to crawl under my desk." And, she testified, she regularly cried in her car "all the way home from being frustrated, from being intimidated, from feeling that you couldn't hardly breathe around there...."
At the close of plaintiff's case, the trial court granted defendants' motion to dismiss the emotional distress claim. It was the trial judge's view that the elements of emotional distress are no different in discrimination cases than in tort cases, that emotional distress is compensable only if it causes discrete physical symptoms of illness or diagnosable psychological sequella, and that temporary emotional distress is not compensable. We disagree with the trial court's perception. In our view, plaintiff's proofs were sufficient to permit the jury to award her compensatory damages for her intense humiliation and embarrassment.
We recognize that emotional distress, either negligently inflicted by a defendant's tortious conduct or resulting from the intentional tort of outrage, is compensable only if it is severe and substantial, a standard we have defined as mental distress that is not merely transitory but rather has a discernible effect on the plaintiff's ability to function normally, either physically or psychologically, on a daily basis. See, e.g., Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 369 (1988); Lascurain v. City of Newark, 349 N.J. Super. 251, 280-282 (App. Div. 2002). *fn1 We need not, however, consider whether plaintiff's proof of her emotional distress met the severe and substantial standard sufficiently to create a jury question. That is so because the claim she makes is based neither on defendants' negligence nor on their commission of the tort of outrage. Rather, it is a claim based on the violation of her constitutionally afforded civil rights whose protection and advancement is the purpose of anti-discrimination laws. We are satisfied, as a matter of long-standing law in this state, the federal courts, and our sister states, that emotional distress suffered by reason of proscribed discrimination is a category distinct and separate from claims of negligent or intentional infliction of emotional distress in other contexts.
We start our analysis with Gray v. Serruto Builders, Inc., 110 N.J. Super. 297 (Ch. Div. 1970), in which the Chancery Division held that the courts have concurrent jurisdiction with the Division on Civil Rights over discrimination cases within the ambit of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1, et seq. The court in Gray also had to deal with damages issues. There, the plaintiff, a black man, had been denied the opportunity to rent an apartment because of his race. He incurred no economic loss. He alleged neither physical symptoms of illness nor diagnosable psychological symptoms. His complaint, rather, sought damages for "'anguish,' embarrassment' and 'personal sense of the attempt of degradation of [plaintiff's] rights as a citizen." Id. at 311-312. Judge Ward Herbert first noted that "[t]he specific question of money damages for mental suffering caused by racial discrimination has not yet been decided in New Jersey." Id. at 312. He then proceeded to do so. His analysis started with the premise that civil rights were here at stake and that "[r]acial discrimination is necessarily wilful rather than negligent, and so the harmful results it causes should not have to be proven to be "substantial.... Indignity must be the natural, proximate, reasonable and foreseeable result of racial discrimination. As such, it should be held compensable...." Id. at 315. Judge Herbert then addressed the difference between indignity alone, that is, having to bear the insult of the discriminatory conduct, and, on the other hand, illness, physical or mental, resulting from the conduct, explaining that in the first instance, only "nominal" damages might be appropriate and that in the second, "actual" damages are warranted. Judge Herbert, finding that the plaintiff, educated and sophisticated, had suffered no damages other than the transitory indignity and humiliation of the discriminatory encounter, then canvassed the reported opinions in other jurisdictions that allowed compensatory damages in racial discrimination cases for indignity and humiliation alone. He concluded, in assessing compensatory damages, that $500 would be adequate compensation to the plaintiff. In reaching this figure he noted as well that:
Though our New Jersey cases have placed some stress upon public and rude humiliation - factors not present here - those factors, either together or singly, are important because they are likely to produce more severe humiliation and anguish than polite or entirely private forms of discrimination would. Yet such aggravating circumstances are relevant only to the quantum of damages and do not go to the basic question of the availability of damages. [Id. at 317.] Three years after Judge Herbert decided Gray, the Supreme Court fully endorsed his humiliation-damages concept in Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399 (1973), a gender-discrimination case, in which the Court affirmed the grant by the Division on Civil Rights of a $750 award to the complainant as compensation for the insult she sustained and her response to that insult when she was denied the opportunity to rent an apartment on proscribed discriminatory grounds. Id. at 406. The issue before the Court was not the general propriety of a humiliation damage award - that was assumed - but rather whether the Division on Civil Rights as well as the courts had the authority to make such an award. The Court concluded that "the Director acted fairly within the orbit of legislative delegation to him when he awarded $750 to the complainant as incidental compensatory damages for the pain and suffering inflicted on her." Id. at 416. We note that in that case, complainant had testified before the ...