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Boyce v. Lucent Technologies

June 21, 2007

ROBERT BOYCE AND ROBIN BOYCE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
LUCENT TECHNOLOGIES AND SHARON KIRBY-MAGILL, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5047-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 16, 2007

Before Judges Cuff and Baxter.

Plaintiff*fn1 Robert Boyce filed a complaint against his former employer and a former co-employee that alleged that he was subject to sexual harassment by the co-employee, that his employer failed to intervene and remediate the hostile work environment, that his employer retaliated against him following his complaints of sexual harassment, and that his employer failed to provide a reasonable accommodation for a disability. He appeals from an order granting summary judgment in favor of his former employee and former co-employee, defendants Lucent Technologies and Sharon Kirby-Magill, respectively. We affirm.

The statement of material facts submitted in support of defendants' motion for summary judgment pursuant to Rule 4:46-2(a) reveals that the facts are largely undisputed. Plaintiff was employed as a Control Board Operator by defendant Lucent Technologies (Lucent) at the Holmdel facility. He commenced work in the control room of the facility in 1984 and met defendant Kirby-Magill at that time. Kirby-Magill holds the same position. Before his employment with Lucent, plaintiff served as a marine. He was six feet tall and weighed 200 pounds.

Plaintiff and Kirby-Magill have always been non-management employees and neither has ever supervised any employees. Both are members of the Communications Workers Union, Local 1062, and the terms and conditions of their employment are governed by a collective bargaining agreement.

In addition to plaintiff and Kirby-Magill, three other persons held the position of Control Board Operator: Donna Chevalier, William McHugh and Michelle Van Stevens. Control Room Operators rarely worked the same shift. Except for the 8 a.m. to 4 p.m. shift, the operators worked alone and saw each other only at the change of shift. Two operators were assigned to the day shift. Except for the operator assigned to "fifth shift," the operators worked swing shifts.

As of August 2001, plaintiff reported to Ronald A. Opitz. For the six preceding years, plaintiff and the other operators reported to James Canham. In addition to Opitz and Canham, four employees had some supervisory responsibilities for the employees in the control room: Dane Martindell, Robert Talarico, Bob Mohn, and Alan Becker.

In early 1999, plaintiff asserted that Kirby-Magill made five comments in his presence of a sexual nature that he found objectionable. Two comments referred to her breasts. She informed plaintiff that she and her husband wrestled nude, that their marriage was not founded on sex, and that her husband suffered from varicose veins in his penis. Plaintiff also alleged that Kirby-Magill showed him a Frederick's of Hollywood lingerie catalog and her chest x-ray.

Plaintiff also related that on one instance, Kirby-Magill was wearing a loose blouse. When she reached over his head for a set of keys, the blouse covered his head and her breasts rested on top of his head. Plaintiff also complained that Kirby-Magill wore tight-fitting and sexually provocative clothing.

Plaintiff complained to Canham but resisted filing a formal complaint against Kirby-Magill. He also conceded that he reported the incidents to protect himself "because in [his] opinion she had brought down more than one person and [he] wanted to go on record that [he] was not harassing her." Canham discussed the situation with personnel in the Human Resources Department who were responsible for equal opportunity and affirmative action matters.

A series of meetings with control board employees and their supervisors were conducted by human resources staff. Plaintiff informed human resources personnel of his complaints about Kirby-Magill. Although there is some dispute whether these meetings directly or even indirectly addressed plaintiff's sexual harassment complaint, plaintiff conceded that the objectionable comments ceased following these meetings. He contended, however, Kirby-Magill continued to dress in a provocative manner and that she and one of the supervisors occasionally administered shoulder and back rubs to each other in the control room.

Plaintiff had a social relationship with Canham, Martindell and Mohn. He played golf with them frequently. Based on conversations with Canham, plaintiff believed that he would be moved out of the control room. Plaintiff believed that he was the subject of retaliation following his complaints. Plaintiff cited a letter placed in his file by Martindell about his complaints. He ...


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