On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MID-L-006837-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, C. S. Fisher and Yannotti.
Plaintiff Betty Poiner appeals from orders entered on December 16, 2005, granting summary judgment in favor of defendants County of Middlesex (County), Joseph Cantella (Cantella), and David R. Campion (Campion). Plaintiff also appeals from an order entered on June 9, 2005, denying her motion to compel the production of the County's file of its investigation of plaintiff's discrimination complaints; and an order entered on July 22, 2005, which denied plaintiff's motion for reconsideration of the June 9, 2005 order, and her motion for leave to amend the complaint. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
On May 13, 2003, plaintiff, along with her husband and their two minor children, filed a complaint against the County, Cantella, Campion, George Catano (Catano), Jim Labose (Labose), and Robert Engel (Engel). Plaintiff asserted claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, for hostile work environment on the basis of race and gender, and retaliation. Plaintiff also asserted claims against Cantella and Campion for aiding and abetting the violation of the LAD and for the intentional infliction of emotional distress. On June 11, 2004, plaintiff filed an amended complaint which did not include her family members as plaintiffs, and dropped the claims against Engel, Labose, and Catano.
We briefly summarize the evidence presented in the trial court. Plaintiff is an African-American woman. She was hired in July 1988 by the County's Department of Public Property, and employed as a building maintenance worker on the night shift in the County's courthouse and administration building. Following a maternity leave from October 1993 until July 1994, plaintiff returned to her job on the night shift. Cantella was the assistant building superintendent and he supervised the night crew.
Plaintiff was deposed on several occasions. She testified that in the first six months after her return to work, Cantella complimented her on her clothes, earrings, and hair. According to plaintiff, other workers told her that Cantella wanted to have sexual relations with her. Other persons hinted at it. Plaintiff said that she did not file a complaint at the time because Cantella had "just [been] giving [her] compliments."
Plaintiff asserted that on a day in either December 1994 or January 1995, she was in Cantella's office in the administration building, along with several other workers. Cantella walked over and sat on plaintiff's lap. According to plaintiff, Cantella put his arms around her to keep from sliding off her lap. Cantella did not say anything; he just started to laugh because, according to plaintiff, "he thought it was a joke." She did not say anything. The other four men in the office started laughing; they also thought it was a joke. Plaintiff said that Cantella sat in her lap a few minutes. She stated that she was shocked and angered by Cantella's actions. The following day, plaintiff complained about the incident to Gerry Piegdon (Piegdon), the County's affirmative action officer. Piegdon told plaintiff that she would speak to Cantella.
Plaintiff testified that, after this incident, she did not speak with Cantella until one night a month later when Cantella came up to the third floor of the courthouse where she was working. Plaintiff was essentially alone on the floor because the other workers were in different places. She said that she was "scared to death" because she did not know what Cantella wanted. Cantella asked if plaintiff was taking typing classes, and she replied that she was. Plaintiff claimed that Cantella was standing very close to her. As she described it, Cantella was almost "rubbing against" her breasts.
Plaintiff told Cantella that she might want to change positions "one day" and needed clerical experience. Cantella allegedly told plaintiff that he would do anything he could to help her. She testified that Cantella was not "trying to be helpful. He wanted something for his favor." Plaintiff said that she got that impression from "[t]he movement of [Cantella's] body, his little slimy grin, and how he was all close up on me."
Two weeks later, plaintiff was assigned to clean on the fifth floor. She testified that Cantella changed her assignment because he knew she "wasn't going to go with him." Cantella allegedly told plaintiff she was being moved because two other workers, Maria Medina (Medina) and Roberto Adams (Adams), were talking too much and not cleaning properly. Plaintiff stated that the floor was "very, very dirty" when she was assigned there.
Plaintiff asserted that, at one point, when she was working on the fifth floor, Cantella assigned her to clean the basement, which was usually cleaned by three men. Plaintiff said that the basement was "filthy" and she "had to do everything." She testified that she did not know any other female workers who "had to go down there." Plaintiff worked on the fifth floor for about two months, and did not have any contact with Cantella in that period.
Thereafter, plaintiff was re-assigned to the first floor. According to plaintiff, Cantella told her that she was being moved to the first floor because "he wanted everybody to know the whole building." Plaintiff worked on the first floor for three or four months but stayed away from Cantella. Plaintiff learned that there was an opening on the day shift and asked Engel, who was one of plaintiff's supervisors, for a transfer.
Plaintiff did not tell Engel that she wanted the transfer because of her concerns about Cantella. However, plaintiff claimed that Engel knew she was not getting along with Cantella because she had complained about his cursing, screaming, and yelling. She stated that she also complained about "everything" to Piegdon, who allegedly told plaintiff that she was going to "straighten it out." In May 1995, plaintiff was transferred to the day shift.
Plaintiff testified that when she was re-assigned to the day shift, she was told to "punch in" in the basement. Plaintiff stated that, in the basement, she observed "naked pictures all over the walls. And there was a lot of cursing and screaming and yelling." Plaintiff said that she again complained to Piegdon. Plaintiff also complained to the personnel department and her boss, Ron Loveley (Loveley). Plaintiff asserted that the "naked pictures" were removed about six or seven months later but she had to complain "about six times" before they were removed.
Plaintiff additionally testified that there was a chalkboard in the employee's room and comments of a sexual nature were written on the board. Plaintiff said that the comments were not about her but they were offensive. Plaintiff did not know who had written on the board because, as she put it, "[t]hey were sneaky in writing it." Plaintiff asserted that she complained about the writings to Campion and George Foiles (Foiles), who was the building superintendent at the time. Plaintiff asserted that the writings continued even though her supervisors knew this was happening.
Plaintiff also stated that she had complained to Loveley about Cantella. Plaintiff claimed that, although Cantella was not her direct supervisor at the time, he would report early for the night shift, curse at her, and call her "all kind[s] of names." Cantella allegedly told plaintiff that she should not be allowed to work there, and said that she "was dumb and stupid." She said that Cantella called her "names like stupid" about thirty or forty times. Plaintiff additionally claimed that Cantella tried to kick her.
Plaintiff further testified that in April 1996, Catano who also worked on the day shift, asked her if she ever had sex with a white man. Plaintiff told Catano that she had not. Catano allegedly told plaintiff that sex with white men was superior to sex with black men and, if she did not believe him, she could go into the closet and he could make her have a white baby. Plaintiff reported the incident to Campion.
After plaintiff complained about the room in the basement, she was allowed to "punch in" in a room that had been Cantella's office. Plaintiff said that in October 2001, she came to work early one morning and the door to the room was locked. Cantella was there and she asked if he would open the door. Plaintiff testified that Cantella told her that he was not her supervisor and did not have to unlock the door for her. She asked if he would please open the door. Cantella went to find the key to the door.
While Cantella was looking for the key, plaintiff told him that she did not understand why he was so nasty to her. Plaintiff claimed that Cantella said, "If you want me to be nice to you, come work for me at night, and I'll be real nice at you." Plaintiff said that she screamed at Cantella and told him that she would never work for him again. Plaintiff reported the incident to Campion the next day. Plaintiff told Campion that "the thing with" Cantella was "sexual." She told Campion that it had been going on "for years and years and years" and she could not "take it anymore." According to plaintiff, Campion said that if she promised not to take any action, he would take care of the situation.
Plaintiff asserted that, after she reported the incident to Campion, Cantella did not bother her for six months. However, plaintiff testified that thereafter Cantella began stalking her. Plaintiff said that Cantella was not supposed to have any interaction with her but he would deliberately come in when it was time for her to "punch in" and start cursing "and stuff like that."
Plaintiff also said that, when she was on break, Cantella would "find a reason to be coming in there." Cantella would ask plaintiff what she was doing and tell her that she was not supposed to be there. She said that several times, Cantella stood close to her and, to plaintiff, it seemed that he was trying to rub up against her breasts. Plaintiff stated that this occurred about ten or fifteen times.
Plaintiff additionally claimed that, at various times, her co-workers made her job difficult by vandalizing her cleaning cart; throwing trash on her cart; removing supplies from certain areas; running water on the restroom floors; urinating and defecating on the floor of the restrooms; placing rolls of toilet paper in the ...