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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...