On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1777-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2008
Before Judges Parker and Yannotti.
Plaintiff Jennifer Barnes appeals from an order entered on June 19, 2007, dismissing her complaint against defendants the State of New Jersey (State), the Department of Corrections (DOC) and East Jersey State Prison (EJSP) (collectively the State defendants) for sexual harassment, discrimination, assault and hostile work environment. We affirm.
The facts relevant to this appeal are as follows. Plaintiff is a corrections officer employed by the DOC since October 15, 1994, and assigned to EJSP. She alleges that her superior officer, Lieutenant Daniel Murray, made a number of sexual advances to her between September 28 and October 25, 2003.
On March 23, 2004, plaintiff filed a complaint with the Equal Employment Division (EED) of the DOC. The charges were investigated and after a hearing on June 1, 2004, the hearing officer found that Murray had created a hostile work environment, sexually harassed plaintiff and violated the State's policy against harassment and discrimination. The hearing officer recommended that Murray be disciplined with a thirty-day suspension. On July 28, 2004, the EED affirmed the hearing officer's decision and imposed the thirty-day suspension.
Plaintiff filed a verified complaint on March 4, 2005. She alleged that defendants violated 42 U.S.C. §1981, §1983 and §1985 of the Federal Civil Rights Act. With respect to New Jersey law, plaintiff alleged violations of the New Jersey Constitution; the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and public policy. She also alleged the tort of outrage. Plaintiff claimed that after she filed her sexual harassment complaint with the EED, she was subject to a disciplinary charge that had no merit. After discovery, the State defendants moved for summary judgment. The motion was granted and, shortly thereafter, plaintiff settled with Murray, the individual defendant.
In its written decision granting summary judgment in favor of the State defendants, the trial court found that
Plaintiff has failed to show that there is a contract at issue in this case or that she was denied any rights to grievances or appeals for any actions. 42 U.S.C. § 1981; Santiago v. City of Vineland, 107 F. Supp. 2d 512, 531 (D.N.J. 2000).
Defendants are also correct in noting the lack of evidence to support a prima facie case under § 1983 as there is nothing in the record to indicate that the State defendants acted with discriminatory intent. "Discriminatory intent 'implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group.'"
Likewise, there is no evidence of a conspiracy to discriminate. "Since 'conclusory allegations of generalized racial bias do not establish discriminatory intent,'" plaintiff's claim as to this count of the Complaint should also be dismissed. White v. Williams, 179 F. Supp. 2d 405, 420 (D.N.J. 2002).
[W]here a plaintiff is able to establish a hostile work environment brought on by sexual harassment, plaintiff bears the extra burden of establishing the employer's liability. The Lehmann [v. Toys 'R' Us, 132 N.J. 587 (1993)] Court held that when an employer has a policy in place that results in prompt and remedial action, the employer will not be liable for compensatory damages for the harassing conduct of its employee. Id. at 624. Cavuoti v. New Jersey Transit Corp. [161 N.J. 107 (1999)] echoed this analysis holding that employers who have in place and enforce such policies should be entitled to "safe haven" from vicarious liability for the conduct of their employees where the policy is periodically published and encompasses an effective and practical ...