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Funk v. Harcourt Co.

December 9, 2009


The opinion of the court was delivered by: Hillman, District Judge


This matter comes before the Court on Defendant's Motion for Summary Judgment on Plaintiff's claims of sexual harassment and retaliation. For the reasons expressed below, Defendant's motion will be granted.


Plaintiff, Ashley Funk, was employed by Defendant, Harcourt, Inc. ("Harcourt"),*fn1 in its warehouse facility in Bellmawr, New Jersey from approximately June 2006 until October 2007. Plaintiff was first hired as a temporary employee in the "Value Added Services" area of the warehouse. Then, in February 2007, Plaintiff was promoted to permanent employee status and was stationed at a computer terminal in the inventory section of the warehouse. In this position, Plaintiff reported to Warehouse Manager Michael Tolen.

In late June 2007, sexually explicit graffiti was found in an aisle of the warehouse by Plaintiff and another Harcourt employee. Some of the graffiti referenced Plaintiff's first name, Ashley, along with drawings of a penis and several sexually explicit phrases. Plaintiff reported the graffiti to Tolen, who directed the Maintenance Manager to immediately remove the graffiti and reported it to human resources. After the incident was reported to human resources no further investigation was done, and the identity of the person who created the graffiti was never determined.*fn2

Over three months later, on October 9, 2007, Plaintiff was involved in a confrontation with another Harcourt employee, Trottie Johnson. Johnson, a forklift operator, did not have supervisory responsibilities and reported to another supervisor, not Tolen. According to Plaintiff, she was seated at her work station when she noticed Johnson in a nearby aisle conversing with another employee. After concluding his conversation, Johnson approached Plaintiff's workstation and stood behind her. When Plaintiff asked if there was something she could do for Johnson he responded, "No, I just feel like slapping you in your face." Plaintiff then asked, "Well why? And what's stopping you from doing it?" Johnson allegedly replied, "I'm clocked in." Plaintiff asked Johnson, "Well, are you scared because you're clocked in then?" and warned him "that if he slapped her, she would smack him back."

At that point, according to Plaintiff, Johnson slapped her in the face with his open hand. Plaintiff then pushed Johnson and told him to get off of her. In response, Johnson invited Plaintiff to hit him back, saying, "Well, go ahead, then. You hit me back then." When Plaintiff declined to do so Johnson said, "Here, right now, just punch me. I'll let you get one in since I got one in." When Plaintiff again refused to hit him Johnson walked away.

Plaintiff says that immediately after Johnson walked away, she went to Tolen's office to report the incident. Tolen instructed Plaintiff that she needed to report the incident to Alice Thompson, the Director of Human Resources, who was conducting a meeting at the time. After the meeting concluded, Plaintiff reported the incident to Thompson, who said that she would speak to Johnson and instructed Plaintiff to return to work. Upon returning to her work station, Plaintiff claims that several unnamed employees made comments to her about the incident and her decision to report Johnson.

Later that day, Plaintiff contacted her father and told him about the incident. Her father then contacted the police, who went to the warehouse and interviewed Plaintiff. According to Plaintiff, she told the police that Johnson's slap was "medium," "like he meant it." The police report indicated that Johnson "smacked her lightly on the face" and that she elbowed him in response.*fn3 Plaintiff did not choose to press charges.

Upon learning of the incident from Plaintiff, Thompson launched an investigation. She interviewed Johnson, who admitted telling Plaintiff that he wanted to slap her and "patting" her on the face. He also claimed that Plaintiff hit him in the chest after he "patted" her. Thompson also interviewed three other employees whom Plaintiff claimed witnessed the incident. The first said he did not see the incident. The second said she saw Johnson slap Plaintiff "like you would pat a baby." The third said that after Johnson would not leave her alone, Plaintiff asked him "why don't you do it? Are you scared?," after which Johnson slapped her. Plaintiff then poked Johnson in the chest and said "why the [f]*** did you slap me?," to which Johnson replied that they were friends and "always messed around."*fn4

The following day, October 10th, Plaintiff was summoned to Tolen's office for a meeting when she reported to work. During the meeting, Tolen and Thompson asked Plaintiff to explain the events surrounding the alleged slapping incident with Johnson again. After explaining the incident, Plaintiff was advised that she would be suspended for three days for touching Johnson after he initially slapped her. Tolen and Thompson also met with Johnson when he reported to work that day. Johnson was also given a three day suspension for touching Plaintiff.

On October 11, 2007, Plaintiff's lawyer contacted Harcourt to discuss a workers compensation claim. Later that day, Plaintiff sent a resignation letter complaining that she was punished and explaining that she did not want to be in the same place as her "attacker." On February 28, 2008, Plaintiff filed a Complaint in New Jersey Superior Court - Law Division, Camden County, alleging claims of retaliation and sexual harassment. Defendant removed the case to this Court on April 15, 2008 and now moves for summary judgment.


A. ...

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