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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. ...

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