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Best v. Community Access Unlimited


April 7, 2010


On appeal from Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-2084-07.

Per curiam.


Argued October 15, 2009

Before Judges Stern and Graves.

Plaintiff Gail Best appeals from an order dated April 17, 2009, granting summary judgment to defendants, Community Access Unlimited (CAU), her former employer, and Gerald Warren (Warren), her former supervisor. Plaintiff asserted a hostile work environment sexual harassment claim, unlawful retaliation, and wrongful termination based on her sex in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.

CAU, a non-profit social service agency serving the developmentally disabled, hired plaintiff in November 2006 as an assistant director of residential services. During plaintiff's training, CAU explained its anti-sexual harassment policy and reporting requirements as set forth in the Employee Handbook, and plaintiff signed an acknowledgment agreeing "to read it thoroughly." She signed a similar acknowledgment as to the Employee Benefits Handbook, which required employees to "complete four (4) months of active service before paid time off may be taken" and to "schedule time off at least two weeks prior to the date(s) requested with supervisor and Human Resources approval." However, plaintiff admits she did not read the handbooks thoroughly.

On February 12, 2007, about three months after she began working at CAU, plaintiff submitted a request to Warren for vacation time on Friday, February 23 and Monday, February 26, 2007. Because Director of Human Resources Michael Estabrooks (Estabrooks) was unavailable, his secretary approved the request, which CAU claims was unauthorized. According to plaintiff, no one informed her that she was not eligible for vacation. She left work on Wednesday, February 21, 2007, at 5:30 p.m., and she was not scheduled to work on Thursday, February 22, 2007. When she returned to work on Tuesday, February 27, 2007, she was advised that she was terminated.

At her deposition, plaintiff testified Warren made harassing comments to her two to three times each week, telling her he would like to date her if they did not work together, and stating, "I haven't had any sex recently. I hope I get lucky." Plaintiff asked him to stop and to leave her alone. She told him she was offended and didn't want to hear about his issues. When asked to estimate the total number of comments, plaintiff responded, "I didn't keep track.... I can't say." Plaintiff also testified a co-worker told her Warren talked about her figure and her lips, stating he liked the way she looked. When questioned about her reaction to Warren's statements, she testified as follows:

I just dismissed it and kept going... I had other things that I needed to do to get my job done so I can't just sit around and listen to Mr. Warren talk about not having any sex all the time, and, you know, I have to move on and do what I got to do.

Plaintiff did not report Warren's behavior because he was in a supervisory position and she was afraid she might lose her job.

Plaintiff also claimed Warren began speaking to her in a "loud and aggressive" manner in front of other employees after she rejected him. However, she admitted that on those occasions, Warren asked whether she had completed assignments within her job description that were solely her responsibility, and she did not complain to anyone at CAU about his treatment of her. Plaintiff further alleged that after she dismissed his advances, Warren placed a disciplinary memo in her personnel file documenting a verbal warning for failure to attend a mandatory meeting. The memo also noted that plaintiff had refused to sign it. Plaintiff admitted she had missed the meeting but claimed she had never seen the memo before and that no one asked her to sign it.

During her deposition, plaintiff was asked about an e-mail from Jackie Diggs-Roberts (Diggs-Roberts), the Director of Residential Services, sent at 5:57 p.m. on Wednesday, February 21, 2007, warning her that she was ineligible for vacation time because she had not completed the four-month orientation period. Plaintiff testified that she had never seen the e-mail before and that she had not spoken to Diggs-Roberts before she left for vacation. Plaintiff testified she mistakenly believed only ninety days were required for vacation time. However, she admitted she knew that two weeks' notice were required for time off requests and that she did not comply with that policy.

When plaintiff returned from vacation on Tuesday, February 27, 2007, Estabrooks informed her she was being terminated because she had abandoned her job. When plaintiff stated that her vacation had been approved, Estabrooks responded that the approval "didn't mean anything" because plaintiff had not completed the four-month orientation period required to receive time off. CAU offered plaintiff a private exit interview with a female staff member, but she declined because she was upset. She did not notify any CAU employee of the conduct alleged in her complaint prior to leaving CAU.

Warren testified at his deposition that he interacted with plaintiff once or twice each week at CAU, but he denied making sexual comments, expressing romantic interest in her, or telling her he would like to date her. He acknowledged that CAU had "zero tolerance" for sexual harassment and that he received training on CAU's anti-harassment policies when he was hired and once every year after that. According to Warren, he was not authorized to terminate employees but would make recommendations as to possible termination. He further testified, however, that he did not recommend plaintiff's termination because he was satisfied with her work performance.

When Estabrooks was deposed, he testified that plaintiff's vacation violated CAU's time off policy because it was not properly approved by "her ultimate supervisor," who was Jackie Diggs-Roberts. He also testified that he and Diggs-Roberts verbally warned plaintiff not to go on vacation because her request had not been approved. However, Estabrooks admitted plaintiff could have reasonably believed her request form was approved because it was signed by Warren, her immediate supervisor, and Estabrooks' secretary. Estabrooks acknowledged plaintiff may not have received the e-mail from Diggs-Roberts advising her not to take time off, but he testified that when he verbally warned plaintiff she was not entitled to any vacation time during her four-month orientation period, plaintiff responded, "I've already bought the tickets." In addition, Estabrooks testified plaintiff told him her request had been approved.

Following discovery, the trial court determined defendants were entitled to summary judgment because "no reasonable juror [could] conclude that these events or the conduct attributed to [Warren]... were sufficiently severe or pervasive such that a reasonable woman could consider the working environment hostile." The court also determined CAU was not liable for Warren's alleged harassment because plaintiff failed to take advantage of CAU's effective anti-discrimination policy. Finally, the court found plaintiff had not established a prima facie case for retaliation under N.J.S.A. 10:5-12(d).

In Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993), the Supreme Court defined the proofs necessary to establish a claim for sexual harassment based on a theory of hostile work environment.

To state a claim for hostile work environment sexual harassment, a female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. For purposes of establishing and examining a cause of action, the test can be broken down into four prongs: the complained-of conduct (1) would not have occurred but for the employee's gender, and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. However, the second, third, and fourth prongs, while separable to some extent, are interdependent. One cannot inquire whether the alleged conduct was "severe or pervasive" without knowing how severe or pervasive it must be. The answer to that question lies in the other prongs: the conduct must be severe or pervasive enough to make a reasonable woman believe that the conditions of employment are altered and the working environment hostile.

Under the "severe or pervasive" requirement, a court must consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a merely offensive utterance; and whether it unreasonably interferes with an employee's work performance." Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed. 2d 295, 302-03 (1993)). The LAD was not intended to serve as a "general civility code for workplace conduct." Ibid. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002, 140 L.Ed. 2d 201, 207 (1998)). To be actionable, the alleged conduct must be extreme; mere rudeness or insensitivity is insufficient. Ibid. While employees have a right to be free from harassment, they are "not entitled to a perfect workplace, free of annoyances and colleagues [they find] disagreeable." Lynch v. New Deal Delivery Serv., Inc., 974 F. Supp. 441, 452 (D.N.J. 1997).

The fourth prong of a hostile work environment claim requires proof that the alleged conduct altered the conditions of plaintiff's employment so as to "create an abusive working environment." Lehmann, supra, 132 N.J. at 608 (quoting Ellison v. Brady, 924 F.2d 872, 876 (9th Cir. 1991)). "[W]hen determining whether conduct has created a hostile work environment, the harassing conduct itself must be evaluated, 'not its effect on the plaintiff.'" Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008) (quoting Lehmann, supra, 132 N.J. at 606).

In this case, plaintiff alleged the harassing conduct consisted of Warren's statements that he would take plaintiff on a date if they did not work together, that he had not had any sex lately, and that he hoped to "get lucky." Plaintiff also claimed a co-worker told her Warren had talked about her body and stated he liked the way she looked. Those remarks may have been annoying and even offensive to plaintiff, but they were not physically threatening, humiliating, or severe, and the statements attributed to Warren did not interfere with plaintiff's work performance. Plaintiff "dismissed" Warren's comments, "kept going" about her work, and did what she "needed to do to get [her] job done." Thus, the record fully supports the trial court's findings and conclusions.

CAU was also entitled to summary judgment on plaintiff's claim of retaliation prohibited by N.J.S.A. 10:5-12(d).

To establish a cause of action for retaliation under the LAD, plaintiff must prove that he or she engaged in protected activity known to the defendant, that he or she was subjected to an adverse employment decision by the defendant and that there was a causal link between the protected activity and the adverse employment decision.

[Shepherd v. Hunterdon Dev. Ctr., 336 N.J. Super. 395, 418 (App. Div. 2001), rev'd in part on other grounds and aff'd on this ground o.b., 174 N.J. 1 (2002).]

Plaintiff did not allege sexual discrimination until she filed her complaint in March 2007. Accordingly, her proofs fail to raise a genuine issue of material fact on two essential elements of the retaliation claim. She did not provide evidence that would permit a jury to find that CAU knew she was engaged in protected activity or that there was a "causal link" between protected activity and the termination of her employment. Ibid.

Here, plaintiff argues she attempted to assert her rights under the LAD when she rejected Warren's advances and asked him to leave her alone. However, she did not engage in any activity protected by the LAD simply by dismissing his comments. Moreover, she did not notify CAU of Warren's offensive conduct and did not establish that CAU knew it occurred. Finally, there is no evidence of a causal link between her rejection of Warren and her termination. As the trial court stated,

Having not made any complaints to the employer, the [c]court is hard pressed to find exactly what the protected activity is, which formed or might form the basis of this cause of action.... I find no evidence to support or even suggest that there was a causal connection between the alleged unlawful activity or activity found to be offensive by the plaintiff to her termination of employment.

Based on the foregoing, we conclude that the trial court properly granted summary judgment in favor of defendants because plaintiff failed to establish a prima facie case of hostile work environment sexual harassment and unlawful retaliation in violation of the LAD. Plaintiff's remaining arguments are without sufficient merit to warrant any additional discussion.

R. 2:11-3(e)(1)(E).



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