On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4500-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Waugh.
Plaintiff D.M. appeals from the order of the Law Division dismissing her cause of action against defendant Walgreens Pharmacy. In her complaint, plaintiff alleged that Walgreens created a hostile work environment by failing to properly respond to the actions of co-worker defendant "Soner" Dorval*fn2 , in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42. Plaintiff also claimed that Walgreens retaliated against her when she reported the harassment by reducing her work hours, resulting in her constructive termination.
Plaintiff argues that the trial court erred by: (1) discounting evidence that defendant failed to take reasonable action to prevent the assault; (2) holding that the Workers' Compensation Act, N.J.S.A. 34:15-8, barred her claim; (3) applying an incorrect standard for sexual harassment; (4) discounting workplace rumors; and (5) finding that Walgreens did not reduce plaintiff's work hours. After reviewing the record before us, we affirm the trial court's order dismissing the hostile work environment claim. We reverse, however, the dismissal of the retaliation claim, and remand this matter for trial.
Plaintiff began working at a Walgreens in Paterson as a service clerk in November 2003. Her duties included working as a cashier, cleaning, and "fixing" the aisles. Her work-hours varied from week to week. Assistant Manager Gary Menina was her direct supervisor. At the time of her deposition in 2006, plaintiff lived with her mother, her teenage sister, a cousin, and her three-year-old son. She graduated from high school in June 2004 and attended a community college.
Soner Dorval was one of plaintiff's co-workers at Walgreens. He started to work at the Paterson Walgreens store as a full-time clerk in February 2003. At the time of the incident in February 2004, Dorval was thirty-seven years old, married and had one child; plaintiff was seventeen. Dorval is five feet seven inches tall and stocky; plaintiff is three inches shorter.
According to plaintiff, on February 10, 2004, after the store closed at around 10:30 p.m., she and Dorval were "putting back returns." At one point, Dorval approached her, complimented her appearance, and said: "I'm leaving. So give me a hug." She described the subsequent events as follows:
I gave him a hug and he tried to kiss me and I turned my cheek and I remember him grabbing my face towards him, okay, pulling my face in trying to kiss me on the mouth. And I said, No, no, stop. . . . [H]e started saying, Oh, you look sexy. You look good. I want you, and things like that.
And then he put his hand on my butt.
And I said, Stop, stop. What are you doing?
And I pulled his hand off trying to pull away from him.
When Dorval loosened his grip, plaintiff began to walk away, but he "grabbed [her] back" and "lift[ed] [her] up in the air. He put one of his arms between [her] underarm and [her] breast area" and put his other hand "between [her] legs and he kept saying, I want you." Plaintiff continued to tell him to stop. Dorval finally put her down, and she left.
Dorval gave a totally different version of the event. According to Dorval, he and plaintiff were joking about whether he loved her or whether she was too skinny; he admitted lifting plaintiff up to see if she was heavy, but said that she did not protest. He denied complimenting her appearance, asking her for a hug, kissing her or touching her breast, buttocks, legs or crotch, or sexually harassing her in any way.
Plaintiff immediately reported the incident to an off-duty police officer who was working at the store. Although the officer told her to fill out a police report, plaintiff declined, claiming that she was scared and did not want to discuss it with her mother. However, even after she told her mother, and contrary to her mother's advice, plaintiff did not formally report the incident to the police.
A few days later, plaintiff told co-workers Carla Reyes and Jessica Santana about the incident with Dorval. Reyes told plaintiff that Dorval had also tried to kiss her. According to plaintiff, Reyes told her that she reported the harassment to assistant manager Hector Perez. In a handwritten "Voluntary Statement" dated February 19, 2004, Reyes indicated that, while at her locker at work, Dorval asked her for a kiss. She responded: "What? Are you crazy?" He then took her arm and tried to kiss her, but she told him to stop. Dorval did stop and he apologized to Reyes several times. She never reported the incident, "since [she] knew what happened to [D.M.]."
Reyes reiterated this incident, which occurred in January 2004, in a certification. She added, however, that she "never told anyone in management at Walgreens about this incident until [she] was interviewed by Walgreens' Loss Prevention in February 2004." In a supplemental certification, Reyes confirmed that she was aware that, under defendant's policy against harassment, she could report an incident without fear of retaliation. According to Reyes, she ...