April 27, 2009
TONY VALENTINE, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS, CORRECTIONAL MEDICAL SERVICES, ROBERT STANLEY, AND KAREN BALICKI, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1779-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 25, 2009
Before Judges Parrillo, Lihotz and Messano.
Plaintiff Tony Valentine appeals from the summary judgment dismissal of his same-sex harassment, hostile work environment complaint against defendants New Jersey Department of Corrections (DOC) and Karen Balicki. For the following reasons, we affirm.
The facts, viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Plaintiff is a senior corrections officer with the DOC assigned to Southwoods State Prison since 2000. From 2001 to April 2004, plaintiff worked in the same area of the prison -- FAC 1 Administrative -- as Robert Stanley, a licensed social worker employed by Correctional Medical Services (CMS), an entity that contracted with the DOC to provide mental health services to State inmates. The two interacted on a daily basis because plaintiff took the attendance and collected the ID cards of inmates who had daily appointments with Stanley and other staff social workers.
There was friction in the relationship. Stanley believed plaintiff was too hard on the inmates and wrote excessive charges. On October 29, 2003, Stanley complained to Superintendent Andrew Kinchen that plaintiff did not want inmates seen by CMS staff on certain days of the week. Plaintiff, Stanley and Kinchen met regarding this issue, and plaintiff agreed to work with CMS staff. The following day, Stanley complained to defendant Balicki, assistant administrator, that plaintiff had called him names including "a low life piece of shit." Balicki ordered plaintiff's supervisor, Captain Blaine Dawson, to investigate Stanley's complaints. During the course of Dawson's investigation, plaintiff, a heterosexual, asserted for the first time that Stanley, a homosexual, had called him a "bitch."
Dawson issued his report on November 13, 2003, concluding that both plaintiff and Stanley were name-calling and likened it to "schoolyard nonsense." Dawson found the incidents to be "offsetting penalties" and recommended that the parties keep their interactions minimal and professional. Dawson's investigation seemed to confirm that the tension between the two stemmed from disagreements over how the prison area to which they were both assigned should be run, a fact verified by plaintiff himself in his November 12, 2003 special report to Dawson:
I believe Mr. Stanley has a personal vendetta against me, because as he stated to me "what I did to Dr. Liberatore." I informed Mr. Stanley that I did not do anything to Doctor Liberatore. I just reported the facts. On several occasions he has stated to me that Dr. Liberatore... is his personal friend.... [I]n August of 2002, I observed Mr. Stanley going through my log book.... [H]e stated that he wanted to see what I was writing about Dr. Liberatore.... I reported this incident to the Administrative Area Sergeant for Facility I.
There have been many time[s] when an inmate has become unruly, and he has assumed the responsibility of coming out of his office and directs me in front of the inmate on how he thinks I should handle the incident.... As you are aware, Mr. Stanley's negative attitude and behavior in front of inmates had a negative [e]ffect and the inmates followed his example and they became argumentative with me.... Mr. Stanley is of the opinion that he is responsible for helping the inmate, of which I do not have a problem, unless it interferes with the safety and orderly operation of my area. On two of these occasions, I informed Ms. Kinchen of these incidents. Ms. Kinchen informed me that she spoke with Mr. Stanley regarding his behavior.
Having previously received and been made aware of the DOC's harassment policies and procedures, on November 18, 2003, five days after Dawson issued his report, plaintiff filed a formal complaint with the DOC's Equal Employment Division (EED), alleging sexual harassment. Specifically, plaintiff complained of incidents in September, October and November 2003 wherein Stanley stated to him "shut up bitch," "you know what they call you on the street, my bitch," and called him a "punk ass." Plaintiff's complaint did not refer to any other sexual comments or conduct by Stanley, but generally alleged that Stanley did not follow procedures regarding inmates' use of prison mental health services.
The EED formally investigated plaintiff's claims and two months later issued its report, concluding that plaintiff's claim that Stanley called him a "bitch" was substantiated. While Stanley's statements were found to be "emasculating and inflammatory," they did not violate the DOC's sexual harassment policy. However, because the statements could "hinder [plaintiff's] authority and effectiveness" in the workplace, the matter was referred to CMS for corrective action.
That same day, Melinda Green, Assistant Director of the DOC's EED, sent a letter to the Human Resources Director of CMS informing him of the results of the investigation and instructing him to take "appropriate corrective action" within three weeks. Green also informed plaintiff that his complaint that Stanley had called him a "bitch" on more than one occasion had been corroborated, that Stanley's actions were "inflammatory, offensive and unacceptable" and the matter would be referred to CMS for remedial action to correct the behavior. Consequently, on January 29, 2004, CMS issued a "Final Written Warning" to Stanley, stating, in part, that Stanley "will treat all co-workers with respect and dignity and on any occasion you are not [met] with the same you are to report those instances to your supervisor immediately.... Should this type of behavior occur again, further corrective action up to and including recommendation for termination may result." On February 5, 2004, CMS notified the DOC that it took "the most severe corrective action we have available, short of terminating Mr. Stanley."
The EED investigation also found plaintiff's reference to Stanley as a "low life piece of shit" to be improper and referred the matter to the DOC for any remedial action warranted. The EED report recommended that "administrative action [be] taken to improve the working relationship of [plaintiff Stanley]." To this end, the matter was referred by Balicki to Chief Stevens, who met with Stanley's supervisor and plaintiff's PBA representative and concluded that plaintiff and Stanley should try to be professional and avoid provocative situations. On February 4, 2004, plaintiff met with Chief Rayford Stevens and received a "performance counseling letter" for making the derogatory comment to Stanley.*fn1 Thereafter, plaintiff and Stanley continued to work in the same prison area after the EED's report until early April 2004 when Stanley left Southwoods State Prison. During that short period of time, plaintiff said their interactions were strictly "work-related [and] professional."
On November 8, 2004, plaintiff filed this lawsuit against the DOC, Balicki, CMS and Stanley, alleging sexual harassment and hostile work environment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; negligent hiring against the DOC and CMS; and aiding and abetting against Balicki. In addition to reiterating the name-calling alleged in his EED complaint, plaintiff, for the first time, complained of same-sex harassment beginning in late 2001 when Stanley allegedly pursued him romantically even after plaintiff rejected his advances. Specifically, plaintiff alleged that: (1) around Christmas 2001, Stanley gave both him and another corrections officer a chocolate badge and handcuffs; (2) on three or four occasions in 2002, told plaintiff that he (Stanley) looked like a tripod naked, stating that he "has a big dick"; (3) in February 2002, gave plaintiff a box of chocolates on Valentine's Day; (4) in the summer of 2002, invited plaintiff over to swim in the nude; (5) in the summer of 2003, left pornographic pictures and letters on plaintiff's desk on several occasions; and (6) in September 2003, along with Martellio, commented on plaintiff's groin area. None of these allegations were made in plaintiff's November 18, 2003 EED complaint or previously voiced to any supervisor prior to commencement of this lawsuit.*fn2
Plaintiff eventually settled with CMS and Stanley. In addition, the trial court dismissed the negligent hiring and training claim because plaintiff failed to file a notice of tort claim pursuant to N.J.S.A. 59:8-8. Following discovery, defendants DOC and Balicki moved for summary judgment on the remaining counts, which alleged, as against the DOC, violations of the LAD based on gender and failure to take prompt and effective remedial action, and, as against Balicki, aiding and abetting. The court granted summary judgment as to both defendants, finding as a matter of law that plaintiff had failed to establish a prima facie case of hostile work environment claim under the LAD, N.J.S.A. 10:5-12a, because he had not shown that Stanley's conduct was based on gender. The court further held that the DOC took prompt and effective remedial action, in that it has a "well publicized and anti-harassment policy" which plaintiff knew about and used; corrective action was taken; the complained of behavior was not repeated after the corrective action was taken; and Stanley left employment at Southwoods shortly after the corrective action was taken. The court dismissed the aiding and abetting claim against Balicki, finding no evidence to support the claim.
On appeal, plaintiff raises the following issues:
I. THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACTS.
II. THE MOTION JUDGE ERRED BECAUSE PLAINTIFF-APPELLANT ESTABLISHED A PRIMA FACIE CASE OF A HOSTILE WORK ENVIRONMENT BASED ON SEXUAL HARASSMENT BY A GAY MALE.
III. THE TRIAL COURT BELOW ERRED BECAUSE THERE WAS A GENUINE MATERIAL FACT AS TO WHETHER THE DEFENDANT-RESPONDENT SHOULD HAVE KNOWN STANLEY AND MARTELLIO WERE SEXUALLY HARASSING VALENTINE.
IV. THE COURT BELOW [ERRED] BECAUSE THERE WAS A GENUINE ISSUE OF THE MATERIAL FACT AS TO WHETHER DEFENDANT-RESPONDENT HAD ACTED NEGLIGENTLY IN FAILING TO ESTABLISH AN EFFECTIVE ANTI-HARASSING POLICY.
V. THE COURT BELOW ERRED AS THERE ARE GENUINE ISSUES OF MATERIAL FACT REGARDING DEFENDANT BALICKI'S STATUS AS AN AIDER AND ABETTOR.
We find no merit to these contentions.
The LAD, which makes it unlawful for an employer to discriminate against an employee on the basis of sex or gender "in compensation or in terms, conditions or privileges of employment," N.J.S.A. 10:5-12a, protects both men and women against heterosexual and homosexual harassment. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601 (1993). In Lehmann, the Supreme Court formulated the basic standard for determining whether acts of harassment in the workplace constitute invidious discrimination in violation of the LAD. When a male plaintiff alleges gender harassment under the LAD, as here, he must demonstrate that the defendant's "conduct (1) would not have occurred but for the employee's gender; and [the conduct] was (2) severe or pervasive enough to make a (3) reasonable [man] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Id. at 603-04 (emphasis omitted).
Under the first prong of the Lehmann test, a plaintiff must demonstrate by a preponderance of the evidence that discrimination would not have occurred but for the plaintiff's sex or gender. Lehmann, supra, 132 N.J. at 604. When the harassing conduct is sexual or sexist in nature, the but-for element will automatically be satisfied. Id. at 605. For example, where plaintiff alleges he has endured commentary or speculation about his anatomy, or has been solicited for sex, this will suffice to demonstrate that the harassment occurred because of his sex. Ibid. Alternatively, if the harassment on its face is not an obvious form of sex or gender discrimination, the plaintiff must then make a prima facie showing that he was discriminated against because of his sex or gender. Ibid.
Under the second prong of Lehmann, the harassing conduct must be found to have been severe or pervasive, not its effect on plaintiff or on the work environment. Id. at 606. Courts consider the cumulative effect of the various incidents of harassment to determine the level of pervasiveness or severity. Id. at 607. Under the third and fourth Lehmann prongs, a plaintiff need only show that a "reasonable [person] would consider the working environment hostile." Id. at 610. Because "discrimination itself is the harm that the LAD seeks to eradicate, additional harms need not be shown[.]" Ibid. The standard under these last two prongs is objective and gender-specific. Id. at 612.
Here, contrary to the motion judge's finding, there appears a genuine fact issue whether Stanley's harassing conduct was gender-based. Although the judge attributed Stanley's conduct to his animosity towards plaintiff for his role in having a CMS doctor removed from employment at Southwoods, there was ample other evidence that over an eighteen month period, Stanley made sexual advances toward plaintiff, targeted him because of his gender, and undermined his authority as a corrections officer in front of co-workers and inmates, thereby creating a hostile work environment.
Nonetheless, plaintiff had settled with Stanley and CMS, and therefore to hold DOC and Balicki directly or even vicariously liable, plaintiff must still demonstrate the existence of a "dispute which resolution in his favor will entitle him to judgment." Brill, supra, 142 N.J. at 540. On this score, "in cases of supervisory sexual harassment... the employer is directly and strictly liable for all equitable damages and relief." Lehmann, supra, 132 N.J. at 617. Further, an employer will also be liable for compensatory damages if the supervisory employee is acting within the scope of his or her employment in creating a hostile work environment, or if acting outside the scope of employment, if an employer delegates the authority to control the work environment to a supervisory employee who abuses that authority. Id. at 619-20.
Employer liability, however, is not limited to agency-based claims of supervisory harassment. "To do so could potentially discourage employers from adopting proactive sexual harassment policies that are well-publicized and directed to all employees." Cerdeira v. Martindale-Hubbell, 402 N.J. Super. 486, 494 (App. Div. 2008) Thus, Lehmann recognized a negligence-based theory of liability arising from an employer's failure to have effective preventive mechanisms in place. Lehmann, supra, 132 N.J. at 621. Liability may be based on the employer's "actual or constructive notice of the harassment" or the employer's negligent or reckless failure to have "an explicit policy that bans sexual harassment and that provides an effective procedure for the prompt investigation and remediation of such claims." Lehmann, supra, 132 N.J. at 624. As to the latter, "[a] plaintiff may show that an employer was negligent by its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms[,]" the existence of which will provide "some evidence of due care on the part of the employer." Id. at 621. "[A]n employer's liability for a supervisor's sexual harassment will depend on the facts of the case." Id. at 624.
Here, plaintiff has failed to establish any basis for employer liability. In the first place, Stanley was not an employee of the DOC, much less a supervisor. Moreover, plaintiff has offered no evidence that any supervisor knew of Stanley's conduct prior to plaintiff formally reporting it. Indeed, plaintiff himself never complained of sexual harassment until November 2003 when he filed an EED complaint, and even then, plaintiff limited his allegations to Stanley's "bitch" or "punk ass" comments, which in themselves do not suggest sexual harassment or gender-based discrimination. Simply put, we fail to see how the DOC could have been negligent regarding Stanley's comments and conduct since plaintiff never complained about them. See Woods-Pirozzi, supra, 290 N.J. Super. at 272.
The evidence is also undisputed that once the employer was put on notice of Stanley's conduct, the DOC acted in a prompt and remedial manner. Cf. Gaines v. Bellino, 173 N.J. 301, 316 (2002). The DOC had a "well-publicized" anti-sexual harassment policy of which plaintiff was both aware and availed himself. Indeed, plaintiff filed a formal EED complaint, choosing of his own volition to severely limit the allegations therein. Nevertheless, the EED investigation was completed in sixty days, the DOC took corrective action within thirty days of the findings, and the complained-of conduct, as found by the motion judge, was not repeated. Stanley left Southwoods a mere two months later.
When addressing employer liability for co-worker harassment based upon the negligent failure to have in place effective and well-publicized sexual harassment policies, courts should generally consider whether the "discrimination policy provided a reasonable avenue through which plaintiff could have voiced [his] complaints about [the harassment][,]" and "whether the absence of such an effective policy was causally related to any harm plaintiff claims [he] suffered[.]" Cerdeira, supra, 402 N.J. Super. at 493.
Here, there is no dispute that DOC had an effective anti-sexual harassment policy in place. While its mere existence is not alone a sufficient defense to vicarious liability, Gaines, supra, 173 N.J. at 319, it is also undisputed that in this instance, the DOC followed and enforced its own policy and procedures, Velez v. City of Jersey City, 358 N.J. Super. 224, 236 (App. Div. 2003), aff'd, 180 N.J. 284 (2004), and no genuine factual question is raised as to the reasonableness of the DOC's "dissemination, implementation, monitoring and enforcement of its sexual harassment policy." Ibid. Indeed, as the motion judge noted, plaintiff did not avail himself of the established avenues of redress until he filed his EED, and even then, chose to omit most of the allegations presented in the subsequent lawsuit. Therefore, any harm plaintiff claims he suffered as a result of harassment was not causally related to a lack of an effective anti-harassment policy. Moreover, by plaintiff's own admission, Stanley did not repeat the complained-of conduct after the EED investigation and in fact left Southwoods soon thereafter. "[W]hen an employer's response stops the harassment, there can be no employer liability[.]" Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001). We, therefore, conclude plaintiff has failed to present a prima facie case of employer negligence in instituting and implementing an effective anti-sexual harassment policy.
Nor do we find any proof of individual liability on the part of defendant Balicki. In the first place, there is no individual employee liability under the LAD unless the employer is first found liable. Tarr v. Ciasulli, 181 N.J. 70, 82-83 (2004). In any event, there is no proof she knew of Stanley's conduct, much less substantially aided and abetted it in violation of N.J.S.A. 10:5-12e.
A finding that an employee is liable as an aider or abettor requires a showing that "(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation." Id. at 84. Factors to be considered by the court in determining whether the defendant substantially assisted the principal include the nature of the acts, the amount of assistance, whether or not the supervisor-defendant was actually present when the acts were being committed, the supervisor defendant's state of mind, and his or her relation to others. Ibid.
Here, plaintiff has not pointed to any wrongful act committed by Balicki that has caused him injury. Nor is there any proof in the record that Balicki substantially assisted Stanley in any of the alleged conduct. Indeed, Balicki was not present during any of the alleged incidents of harassment, and given the nature of acts alleged, it would have been difficult, if not impossible, for Balicki to have assisted. Although, as the motion judge noted, Balicki, as Stanley's friend, should have disqualified herself from any participation in the matter, the fact remains that the EED investigation was thorough, fair, and resulted in a resolution unfavorable to Stanley and a recommendation for future corrective action to be taken against him. Viewing the facts most favorable to plaintiff, no rational factfinder could conclude that Balicki aided and abetted Stanley's sexual harassment of plaintiff.