On appeal from Superior Court of New Jersey, Law Division, Atlantic County, L-1639-00.
Before Judges King, Lisa and Fuentes.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Pursuant to the terms of an agreement between defendant Correctional Healthcare Solutions, Inc. (CHS), and defendant Atlantic County (County), CHS provided healthcare services to inmates incarcerated at the Atlantic County Justice Facility (Facility). Plaintiff Giselle Chrisanthis is a licensed practical nurse who was employed by CHS to provide services at the Facility. Plaintiff alleged that, during the course of her employment, she was sexually harassed by defendant Sean Thomas, who was a supervising corrections officer employed by the County.
Plaintiff brought an action under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD), against the County, Thomas, and CHS, seeking money damages for"hostile work environment sexual harassment." Judge Higbee granted the County's and Thomas's motions for summary judgment. The sole issue on appeal pertains to the summary judgment motion granted in favor of the County. After summary judgment was granted, plaintiff and Thomas entered into a stipulation of dismissal, dismissing with prejudice all claims, including Thomas's counterclaims, they had against each other. Plaintiff then entered into a consent order dismissing without prejudice her claims against CHS.*fn1 Recognizing that the LAD applies to employer-employee relationships only and does not protect independent contractors, the judge determined that the proofs were insufficient to establish an employment relationship between plaintiff and the County to support LAD liability. Plaintiff appeals, contending she presented sufficient evidence to withstand summary judgment and the issue, for LAD purposes, of County employment, should have been presented to the trier-of-fact. We disagree with plaintiff and affirm.
Located in Mays Landing, the Facility is a"maximum, medium and minimum detention facility" that houses sentenced and pre sentenced men and women. The jail population averages about 975 persons who require medical, dental and mental health services. During 1995 and earlier, the nursing component of these services was performed by County employees.
On September 27, 1995, the County issued a Request For Proposals (RFP), inviting health care contractors to submit proposals to perform medical, dental and mental health services at the Facility beginning on January 1, 1996. The RFP outlined the County's requirements for services and specified that the"Health Care Contractor is at all times hereunder acting and performing as an independent contractor to coordinate the provision of professional services within the scope of the authority conferred by this Agreement."
The RFP also contained a provision concerning"County Satisfaction with Health Care Personnel," which stated:
If the County should become dissatisfied with any health care personnel and/or subcontractor provided by the Health Care Contractor, the Contractor, in recognition of the sensitive nature of correctional services, shall, following receipt of written notice from the County of its dissatisfaction and the reasons thereof, exercise its best efforts to resolve the problem and, if the problem is not resolved, remove the individual about whom the County has expressed its dissatisfaction. The Contractor will be allowed a reasonable time prior to removal to find an acceptable replacement.
In response to the County's RFP, CHS submitted a proposal detailing its plan to provide the requested services. CHS's proposal specified that it would hire personnel to provide the services, subject to"Atlantic County's approval," which evidently meant that the prospective CHS employee was"required to pass investigations conducted" by the Facility. The proposal also provided that CHS would purchase and maintain all necessary medical and pharmaceutical supplies and equipment.
CHS was awarded the bid, and on December 29, 1995, the County and CHS entered into a contract for provision of medical, dental, and mental health services at the Facility commencing on January 1, 1996. This was a one-year contract, with two one-year renewal options by the County. The contract, by its terms, incorporated the County's RFP and CHS's proposal. The contract provided that CHS's"status shall be that of an independent principal and not as agent or employee of the County."
Plaintiff is a licensed practical nurse. On October 8, 1996, she was hired by CHS to provide medical services at the Facility. Plaintiff was given a CHS employee handbook, which specified her role as a CHS employee at the Facility, including pay, benefits, and CHS's performance appraisals and disciplinary procedures. The handbook recited that CHS medical employees were"guests" of the Facility and that, as such, they were to observe the"rules of security." The handbook also stated that CHS was sometimes requested by a client"to terminate an employee who is unacceptable... or violates their rules and regulations. Under such circumstances, the [CHS] employee may be asked to immediately surrender his/her identification badge and be escorted off of the premises and/or permanently barred."
Plaintiff worked at the Facility on a part-time basis during 1996, 1997, and 1998. During this period, she received favorable performance appraisals from her CHS supervisors, but was also issued a written warning by those supervisors concerning her excessive absenteeism. On May 20, 1999, plaintiff completed a"Position Description" form with her CHS supervisor, in which she specified the numerous duties required of her job at the Facility. The form is noteworthy because, in completing it, plaintiff essentially acknowledged her role as a CHS employee who provided"nursing care within the correctional facility;" she did not assert in any way that her job constituted County employment.
When she began her employment with CHS at the Facility in 1996, plaintiff became acquainted with Thomas, a County employee occupying the position of corrections officer and holding the rank of sergeant. By 1999, Thomas had been promoted to the rank of lieutenant. According to plaintiff, on June 21 and July 7, 1999, Thomas touched her in a sexually inappropriate manner, against her wishes, in pursuit of sexual favors. Plaintiff reported the incidents, and Thomas's superiors at the Facility conducted an investigation which concluded on September 27, 1999 the allegations were"not sustained."
On August 16, 1999, the County's Equal Employment Opportunity Office (EEO), began an investigation into plaintiff's complaint of sexual harassment pursuant to a County policy concerning such allegations against its employees. The County's EEO officer, Susan L. Gross, issued a report, on January 11, 2000, in which she concluded that"[t]here is insufficient credible evidence to substantiate the allegations of sexual contact [made] by... [plaintiff] against Sgt. Thomas."
On December 13, 1999, CHS sent plaintiff a letter notifying her that on December 31, 1999 CHS's contract with the County would terminate and that, as a result,"your employment with CHS will cease as of that date." The motion record establishes that plaintiff knew of no one employed by the County who was responsible for terminating her from her employment with CHS. Thereafter, plaintiff appears to have been immediately hired by Prison Health Solutions (PHS), an independent healthcare provider unrelated to CHS, to provide the same nursing services at the Facility that she provided when she was employed by CHS. However, plaintiff was evidently employed by PHS on an"as needed" basis, and PHS never requested her services. According to plaintiff, PHS had been advised by someone in authority at the Facility that she was not to be called for work and was not permitted on the premises of the Facility.
The LAD prohibits employment discrimination, including sexual harassment, by an"employer." N.J.S.A. 10:5-12a. However, the LAD's definition of"employee" states only that it"does not include any individual employed in the domestic service of any person." N.J.S.A. 10:5-5f. The relatively undefined ...