On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. CPM-L-717-04.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Parrillo and Gilroy.
Plaintiff, Theresa Thomas, appeals from a summary judgment order dismissing her sexual harassment action against the County of Camden, its employee Michael Howard, and the Camden County Communications Center (CCCC) (collectively, the Camden defendants), brought under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We are asked to decide two issues in this appeal: (1) whether the CCCC is a "place of public accommodation" for purposes of determining whether the Camden defendants discriminated against plaintiff in the furnishing thereof, N.J.S.A. 10:5-1f(1); and (2) whether there was an employer-employee relationship between plaintiff and the Camden defendants for purposes of determining whether employment discrimination occurred, N.J.S.A. 10:5-12(a).
In our review of the record, we view the evidence, as we must, in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In March 2000, the Town of Hammonton hired plaintiff as a radio dispatcher for its police department. She commenced employment on April 2, 2000, and was terminated on June 29, 2000. Shortly after she began working, Hammonton required plaintiff to obtain a 9-1-1 certification. N.J.A.C. 17:24-2.2(c). Consequently, plaintiff enrolled in the Association of Public-Safety Communications Officials International (APCO) basic telecommunicator training program run by Camden County and taught by Howard at the CCCC. She attended class on June 5, 6 and 7, 2000, and appeared for approximately five minutes on June 8, 2000. During the course of instruction, plaintiff claims Howard sexually harassed her by subjecting her to "various lewd and derogatory remarks of a sexual nature", and to a tape recording of supposed emergency calls consisting of obscene material. When plaintiff complained of Howard's conduct to her superior officers at the Hammonton Police Department, she was advised that she did not have to return to the class. Instead, the police chief made alternate arrangements for plaintiff to take the dispatcher certification test, which she passed. On June 9, 2000, plaintiff received a certificate of completion of the requirements of the APCO basic telecommunicator training program. Plaintiff, however, did not report to work after June 14, 2000, claiming to be sick. As a result, Hammonton terminated her employment on June 29, 2000.
Plaintiff, thereafter, filed a complaint in federal court against Hammonton, its governing body and clerk, and the Camden defendants, alleging violations of the Due Process Clause, the First Amendment, the Consolidated Omnibus Budget Reconciliation Act, the New Jersey LAD, and the New Jersey Conscientious Employee Protection Act. The district court granted summary judgment in favor of all defendants, but the appeals court reversed as to the LAD claims. Thomas v. Town of Hammonton, 351 F.3d 108, 119 (3d Cir. 2003). On remand, the district court dismissed plaintiff's complaint pursuant to 28 U.S.C. § 1367(d).
This sexual harassment action in the Law Division followed dismissal of plaintiff's federal lawsuit. On the Camden defendants' motion for summary judgment, plaintiff posited two functionally distinct theories of liability under the LAD: employment discrimination and discrimination in relation to public accommodation. In granting the Camden defendants summary judgment dismissing plaintiff's complaint,*fn1 the motion judge rejected both theories, finding that the CCCC was not a place of public accommodation and that no employment relationship existed between plaintiff and the Camden defendants for purposes of coming within the purview of the LAD's discrimination ban. Plaintiff appeals. We affirm as to the latter determination, but reverse as to the former because we conclude that the Camden defendants qualify as a "place of public accommodation" to support an LAD claim.
Without question, sexual harassment is "a form of targeted discrimination." Pukowsky v. Caruso, 312 N.J. Super. 171, 177 (App. Div. 1998). Equally without doubt, the LAD proscribes sexual harassment both in the workplace, Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 600-01 (1993), and in places of public accommodation, N.J.S.A. 10:5-4. Thus, All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation . . . without discrimination because of . . . sex . . . subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.
Further, N.J.S.A. 10:5-12 provides that "[i]t shall be . . . unlawful discrimination":
For any . . . agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof . . ...