On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-3631-02.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2007
Before Judges Skillman, Winkelstein and Yannotti.
Plaintiff Angela Hoag was a licensed clinical social worker employed by Correctional Medical Services, Inc. (CMS) and assigned to the Southern State Correctional Facility (Southern State) to provide mental health services for prison inmates. During her tenure at that facility, plaintiff alleges that defendant corrections officer Richard Sheppard threatened her and physically and verbally abused her.
Based on Sheppard's conduct, plaintiff sued the State under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD) and the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA). The parties filed cross-motions for summary judgment.*fn1
The judge dismissed plaintiff's LAD hostile work environment claim on the grounds that she was not a State employee. He dismissed her TCA claim for negligent retention and supervision of Sheppard for two reasons: first, because the State was not vicariously liable for Sheppard's conduct; and second, because plaintiff failed to meet the TCA pain and suffering verbal threshold. N.J.S.A. 59:9-2d.
Plaintiff appeals from the summary judgment dismissing her complaint. She also appeals from the denial of her motion to amend the complaint to add a cause of action against the State based on public accommodation liability under the LAD.
We affirm the denial of plaintiff's motion to amend, but otherwise reverse the summary judgment dismissing her complaint.
The DOC is responsible for the health care of State-sentenced inmates housed in New Jersey's correctional system. To fulfill that obligation, the State issued a request for proposals (RFP) for privatization of its inmate health care system. Pursuant to the terms of the RFP, CMS contracted with the State to provide psychological and counseling services to inmates. Because the trial court dismissed plaintiff's LAD claim for lack of an employer/employee relationship between her and the State, we review in detail the responsibilities the RFP and the contract imposed on both the DOC and CMS.
CMS is responsible for developing uniform health care policies and procedures and for coordinating meetings with institutional superintendents to discuss health care services. It provides on- and off-site health care services and professional management services. The DOC provides CMS with office space, facilities, utilities, telephones, computers, fax/copy machines, and other equipment.
With respect to personnel, the "final selection of all employees or subcontractors" is subject to DOC's approval. CMS personnel are subject to a background investigation conducted by the DOC to determine suitability for initial and/or continued employment. The continued employment of CMS's staff is subject to the DOC's approval. The DOC also reserves the right to instruct CMS to prohibit its employees from performing any service under the contract. The personnel files of all CMS employees are to be kept on file at DOC institutions and made available to the institutional superintendent or his or her designee.
CMS is required to notify and consult with the DOC medical director or contract monitor prior to discharging professional staff, and the DOC retains "the ultimate right of approval/refusal and/or dismissal of an individual professional." CMS activities are to be performed in consultation with, under the direction of, and with the approval of the State's contract monitor. CMS is responsible for ensuring that its personnel are provided with orientation and training regarding medical practices on-site at the institution; orientation regarding other institutional operations is the responsibility of the institution and the DOC. CMS monitors the performance of its health care staff to ensure adequate job performance.
All full-time CMS staff are to be on-site at the institution at least forty hours per week, and are required to comply with sign-in and sign-out procedures on a DOC time-keeping form or other method approved by the DOC. CMS personnel are subject to all security regulations and procedures of the DOC and the institution, and the DOC provides security for CMS personnel "consistent with security provided NJDOC employees."
The RFP stated that a contractor's status "shall be that of any independent principal and not as an employee of the State." All contractors had to agree not to discriminate in employment and to abide by all anti-discrimination laws, including the LAD. CMS's website instructs prospective employees that they will be employees of CMS, not the state or local government with whom CMS contracts, and that CMS pays their salary and benefits.
In November 2000, CMS hired plaintiff as a staff clinical social worker to provide mental health services to the DOC psychiatric inmate population, and assigned her to Southern State. According to CMS's job description, a staff clinical social worker "[p]rovides assessment, treatment, and crisis intervention and other mental health services to . . . inmates in accordance with professional standards and licensing agreements." The social worker is accountable to the lead psychologist and must promote a positive working relationship with "Health Services, staff, prison staff and CMS administrative staff." He or she is required to comply with "employee standards of CMS and applicable employee standards of the facility."
The DOC required plaintiff to provide thirty-minute mental health therapy sessions, twice a month, to fifty to sixty "special needs" inmates assigned to her. She provided counseling to these inmates in her office, which was located in a trailer in Compound A. In her trailer, she worked in close physical proximity with DOC employees responsible for social services, parole, chaplaincy, and classification units.
Before being released to plaintiff, each inmate was checked in and searched by the correctional officer assigned to the trailer. Sheppard was the correctional officer the DOC primarily assigned to her trailer.
Plaintiff attended discharge/release committee meetings with Southern State's administration and social services departments and DOC staff meetings to report on mental health issues. In turn, DOC staff attended CMS's weekly treatment team meetings and crisis intervention and suicide prevention training sessions. Plaintiff also attended a DOC-sponsored new employee orientation, DOC training on conducting a parenting group for inmates, behavior modification training, and, together with DOC correctional officers, a mandatory teleconference training session about treating the psychiatric inmate population.
Pursuant to a May 1999 settlement of class action litigation brought by mentally ill prisoners against the DOC, the court appointed independent monitors "to facilitate and ensure [the DOC's] compliance with the terms of the Settlement Agreement." The monitors visited plaintiff's workplace four times a year and regularly interviewed her and the inmates. Her daily work was also monitored by a DOC Quality Assurance Monitor who had direct access to her computer and who regularly reviewed her progress notes, treatment plans, special reports, and e-mails.
Plaintiff was required to follow the DOC's Mental Health Services Policy and Procedures Manual. She was jointly responsible with the DOC's social workers for preparing inmate discharge plans.
We next review Sheppard's conduct toward plaintiff that underlies her claims. She certified that Sheppard regularly interrupted her counseling sessions by calling her on the telephone, knocking on her office door, and walking unannounced into her office. He often cursed and made abusive comments about her or the inmates.
During her second week of employment at the facility, Sheppard berated her for the way she wrote down an inmate's name. He called her a "moron" and said, "No wonder your husband left you." He then mimicked some Italian words. Plaintiff reported the incident to the lead psychologist and head of the psychology department, Dr. Leland Mosby, who told her he would talk to "Administration."
About ten days later, Sheppard berated her again and interfered with her counseling sessions. When she came out of her office, he told her to stay inside and yelled at her not to come out again. She reported this incident to Dr. Mosby and to Dr. Maurice Rosman, the site medical administrator. Dr. Rosman reported the incident to Ronald Cathel, the prison administrator, and assured plaintiff that the problem would be resolved. A few days later, Sheppard confronted her and asked if she had "been talking to anybody." He warned her, "You better not be talking or else."
In January 2001, plaintiff stepped out of her office and asked Sheppard whether her inmate had arrived. Sheppard leaned back in his chair, opened his legs, and grabbed his genitals with his hand while smirking and saying, "This is here." She was humiliated and scared. That same month, Sheppard approached her and "eyeball[ed]" her from head to foot. He commented that she was built like his wife, "only you have bigger tits and she don't fuck." Plaintiff returned to her office and cried.
The next morning, Sheppard sniffed plaintiff and commented that she smelled like his cat litter box. Another morning, he greeted her with, "Here comes the Sicilian! There is nothing worst [sic] than a Sicilian [w]oman. . . . [N]o wonder your husband left you!" On January 25, 2001, plaintiff's birthday, Sheppard marked his desk calendar, in large red lettering, with the words, "HOAG IS 55 . . . HAPPY BIRTHDAY OLD BAG."
In February 2001, Sheppard said, in front of inmates, that plaintiff's initials, A.H., stood for "airhead" and "asshole." On another occasion he asked her why she did not "show any leg around here? Don't you shave your legs. You know what they say about Sicilian [w]omen. . . . They are hairy!" She complained to Assistant DOC Superintendent Brenda Brown about Sheppard's abusive behavior.
Sheppard's behavior worsened. On March 7, 2001, he put his hands on plaintiff and said, "You must be very lonely without a husband. Don't you miss having a man in your life?" When she stated she was happy, Sheppard replied, "How could you possibly be happy without a man in your life[,] don't you miss sex?" He asked her to go out with him; she refused.
Later that afternoon, Sheppard started pulling and feeling plaintiff's hair. He told her that her hair was dry and kinky and asked if she had "niger [sic]" in her. He then said, "You know what they say about you Sicilians -- You're all niger [sic], being so close to Africa and all. . . . Are you sure there isn't any niger [sic] in your ancestory [sic]?"
On March 9, 2001, Sheppard entered plaintiff's office and asked her if she wanted to go out with him. When she refused his repeated requests, he left her office, mumbling "you god-damn women are all alike!" Later that morning, Sheppard repeatedly asked her to go out with him.
When plaintiff asked Sheppard whether one of her inmates had arrived, he moved close to her and "smacked" her face repeatedly with the back of his hand in a rapid motion, repeating and mimicking her, "Is he here? Is he here? Is he here? [T]hat's all you ever care ...