On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1912-05.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sapp-Peterson and Newman.
Plaintiff Robin Cerdeira appeals from the grant of summary judgment dismissing her sexual harassment complaint in which she urged that her employer, defendant Martindale-Hubbell (Martindale), a division of Reed Elsevier, Inc., was directly liable for the sexual harassment to which she was subjected by a co-worker because Martindale failed to have in place an effective sexual harassment policy. We reverse.
The facts viewed most favorably to plaintiff, Brill v. Guardian Life Ins. of America, 142 N.J. 520, 536 (1995), disclose that plaintiff began working for Martindale in 1983 and continues to remain employed with Martindale. She started as a typist and, although she has never held a managerial position, plaintiff has been promoted to various positions. In 2000, she was promoted to senior analyst, the position she currently holds. Her duties as a senior analyst include "signaturing the files, processing the mail, [and] putting information on the system."
Sometime beginning in 2001, plaintiff became the subject of harassing conduct directed towards her by co-defendant Melvin Bowers, a programmer analyst, who worked in a separate department from plaintiff and who was not her supervisor nor a supervisor or manager within his own department. According to plaintiff, although Bowers did not supervise her, Bowers "felt that he had authority" and was "very close" to her supervisor, Barbara Dorner, who plaintiff acknowledged was her friend in addition to being her "boss."
Over the next two years, Bowers continued to subject plaintiff to harassing conduct, which included sending her sexually explicit pictures of "[n]aked women, people having sex, catalogs of Frederick's of Hollywood, Victoria's Secret, [and] people having oral sex." He called plaintiff, either from his home or from his work station, and as plaintiff explained during her deposition,
He would call me on the phone and start playing with himself and want me to listen to him and try to pretend that he was doing things to me, and then I would just tell him I couldn't talk; I had to go see Barbara or somebody was in my cube, and he used to get loud and yell[,] saying he only needs three minutes of my time, don't you dare hang up. And he just wanted to masturbate.
At one time he left a bra and thong underwear, perfume, and a camera at her workstation and called to tell her that he wanted her to take pictures of herself. Plaintiff never reported Bowers' conduct to Dorner or anyone else except another co-worker, Joyce Martini. Martini did not encourage plaintiff to report Bowers' conduct, nor did she inquire of plaintiff why she did not report the sexually harassing conduct.
On July 23, 2003, a mail room supervisor, Rico West, saw one of the inappropriate photographs Bowers sent to plaintiff as he walked by plaintiff's desk. Plaintiff had stopped him to ask whether he knew how to make an e-mail appear as unread. Upon observing the photographs, West urged plaintiff to report the incident or he would have to do so because he could lose his job if he did not report it. Plaintiff told West that she would do so once she spoke to her husband. Plaintiff told her husband about the incidents over the weekend. The following Monday plaintiff told Dorner about Bowers' behavior and Dorner immediately contacted Ed Bigelow, the Director of Human Resources (HR). Bigelow met with plaintiff fifteen minutes later. Bigelow also met with other supervisory employees to discuss Bowers' conduct. Bowers was immediately suspended and two days later fired. Martindale told plaintiff to take as much time off as she needed, and plaintiff did so. She remained on paid leave with full benefits for several months. She returned to employment the following November, resuming her position as senior analyst.
Martindale publishes a Code of Conduct that it distributes to employees that includes the following statement:
The Company will make every reasonable effort to provide an environment free from harassment of any kind toward any individual. . . . If any employee has questions about any section of these Standards of Conduct, he or she should direct all questions to his or her immediate supervisor, local ...