On Appeal From the United States District Court For the District of New Jersey (D.C. Civil Action No. 01-cv-02509) District Judge: Honorable Joseph E. Irenas
Before: Sloviter, Roth and Stapleton, Circuit Judges
The opinion of the court was delivered by: Stapleton, Circuit Judge
Appellant Theresa Thomas alleges that, while employed by the Town of Hammonton, New Jersey ("Hammonton"), she was subjected to sex discrimination and that her employment was terminated in retaliation for her complaints about that discrimination. The District Court granted summary judgments in favor of all the defendants, Hammonton, the Mayor and Council of Hammonton, Diane DeCicco, the County of Camden ("Camden County"), Camden County Communications Center, and Michael Howard. We will affirm all of these judgments except those pertaining to Thomas's claim of hostile work environment sexual harassment under the New Jersey Law Against Discrimination ("LAD"). We will reverse and remand all of the District Court's judgments with respect to the LAD sexual harassment claims, except the one entered in favor of Diane DeCicco, which will be affirmed.
I. The Standard of Review
Because we are called upon to review summary judgments, our review is plenary. Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 679-80 (3d Cir. 2003). We must view the record in the light most favorable to Ms. Thomas. Id. at 680.
II. The Summary Judgment Record Viewed in the Light Most Favorable to Ms. Thomas
On April 2, 2000, Thomas began working on a provisional basis for the Town of Hammonton Police Department in the State of New Jersey as a 911 call center dispatcher. As a new dispatcher, Thomas was subject to a 90-day probationary period, during which time Hammonton could release Thomas from her employment with or without cause.*fn1 In June of 2000, Thomas was required to take a week-long training course run by Camden County and given at the Camden County Communications Center.
On June 5, 2000, Thomas arrived at the Camden County Communications Center to begin her training course. The course was taught by Michael Howard. Thomas and Nick DeStefano, a male, were the only students. Thomas alleges that within the first half hour of the class, the instructor, Howard, began harassing her. The sexually harassing conduct of Howard, according to Thomas, included the following: (1) using the words "jerk-offs, pricks, and pussies;" (2) using the word "bitch" as a synonym for problem; (3) distributing "dumb blonde" jokes to the class; (4) grabbing his own genital area several times;*fn2 (5) making a point of standing directly in front of Thomas (two to eight feet away) when acting offensively; (6) playing a tape of supposed 911 emergency calls for the class, and fastforwarding to particularly sexually explicit parts; and (7) remarking "so that figures" to Thomas after he asked what she had for lunch and she indicated a hot dog. With the exception of the hot dog incident, Thomas's fellow student was present for all of these incidents.
The tape, purportedly consisting of actual 911 emergency calls, contained several calls of a non-sexual nature (including a call from a man who mumbles gibberish for several minutes to a dispatcher, a call regarding a fire, and a call from a man who gets into a car accident while on the phone with a dispatcher). The calls allegedly played to Thomas, however, included the following: (1) the caller indicates that he went to a doctor and the doctor asked him to "do some crazy shit and... ejaculate." The caller then claims the doctor asked him if he was "getting hot and... want to come;" (2) the caller indicates that her 15 year-old son put a combination lock on his testicles; (3) the caller says he "cut [his] cock off," apparently with a vacuum cleaner; (4) a call between a dispatcher and an EMT discussing how the EMT had to transport a vacuum cleaner to the hospital with the patient; (5) a call between a dispatcher and another EMT after the vacuum incident describing how the caller was masturbating with an upright vacuum and how "it" got stuck in the vacuum and the vacuum cut "it" off; (6) the caller indicates that her husband has hair caught in his throat, the dispatcher asks what the husband was eating, and caller replies "me;" (7) the caller indicates that he has something "stuck in [his] ass" and tells the operator that the object is a dildo; and (8) the caller requests information regarding laws on nudity, indicating that she "know[s] in Washington, D.C. that women can go topless as long as they have their nipples covered."
Howard did not use the above tape in an instructional manner, but merely played the tape (often fast-forwarding to the sexually explicit parts), laughed, joked, and discussed how paramedics treating the vacuum victim found that his "peter" was like ground meat and ultimately could not be repaired. He additionally noted that the caller who had something stuck in his rectum had to have four hours of surgery as a result.*fn3
Thomas attended the class for three days on June 5, 6, and 7, 2000, and for about five minutes on June 8, 2000. After the first day of the course on June 5, 2000, Thomas complained to fellow Dispatcher Theresa Bradbury that Howard had been using foul language and lewd gestures. Bradbury offered to call a Camden County employee to complain for Thomas, but Thomas informed Bradbury that she had already said something to the instructor, that she needed the class for work, and that she "didn't want to create a big thing." Appellant's App. at 50.
After the behavior by Howard continued on June 6, 2000, Thomas approached Lt. Sean Locantore of the Hammonton Police Department, who was in the direct chain of command for the department's dispatchers. Thomas complained about Howard's inappropriate comments and gestures, and specifically complained about the tape of supposed 911 calls played by Howard. Lt. Locantore suggested that Thomas bring the matter to Hammonton Police Chief Ingemi and to Dispatcher Bradbury. Thomas indicated that she did not want to do so and risk that Howard might fail her. Lt. Locantore suggested that Thomas record the language used by Howard and attempt to obtain a copy of the tape of supposed 911 calls.
Returning on June 7, 2000, Thomas recorded part of the class taught by Howard. According to Thomas, Howard cursed and made obscene gestures (such as grabbing his crotch) during this class as well. Thomas stayed in the class at this point, and asked to borrow a copy of the tape of supposed 911 calls played by Howard during the previous class. Howard gave her the tape. Thomas returned to the Hammonton Police Department and advised Dispatcher Bradbury that she had a copy of the "training" tape.
A meeting with Thomas, Ingemi, Locantore, Bradbury, Deputy Chief Ness, and Lt. Jones eventually took place in Chief Ingemi's office that day. The Chief told her, "I can't tell you whether to go back or not go back." Appellant's App. at 68. Lt. Locantore told Thomas to leave the class if Howard was still teaching the next day. When Thomas arrived, Howard was in fact teaching the class and Thomas left. Thomas called Chief Ingemi, who informed her that she did not have to return to the class.
The next day, on Friday, June 9, 2000, Thomas reported for work at 7:00 a.m. and left for a previously arranged vacation at lunchtime. Thomas returned to work as scheduled on Monday, June 12, 2000, and also reported for work on Tuesday, June 13, 2000 and Wednesday, June 14, 2000. Thomas alleges that no one in the department talked with her during these last three days. On Wednesday, Thomas was given the 911 dispatcher certification test as a result of Chief Ingemi's having made alternate arrangements for Thomas to take the test. She passed. Wednesday, June 14, 2000, turned out to be Thomas's last day of work for the Hammonton Police Department.
Thomas called in sick for her scheduled shifts on June 16, 2000 and June 17, 2000, due to an upset stomach, vomiting, and anxiousness. She visited her physician on June 20, 2000, who advised her to stay out of work for a week and wrote a note indicating that she would be out of work through June 27, 2000. Thomas was scheduled to work on June 28, 29, and 30, 2000, but did not report to work. She alleges that she still felt sick and that for a few days prior to June 28, 2000 she was unable to contact her doctor, who was on vacation. According to Thomas, she contacted Lt. Locantore on June 26, 2000 and informed him that she was still sick. Lt. Locantore indicated that she would not be paid for her time out sick if she exhausted her sick days.
On June 26, 2000, a closed meeting of the Mayor and Council of the Town of Hammonton was held. Chief Ingemi reported to the Council that Thomas had made an accusation to him regarding sexual ...