On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3978-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued on September 20, 2010
Before Judges Lisa, Reisner, and Sabatino.
The trial court granted summary judgment to defendants in this employment case brought under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. For the reasons set forth in this opinion, we affirm the trial court's dismissal of plaintiff's wrongful discharge claims and her claim of intentional infliction of emotional distress. However, we reverse the dismissal of plaintiff's claim of a gender-based hostile work environment and remand for trial on that particular claim.
The record developed in discovery contains the following pertinent facts and contentions. Because we are reviewing an order granting summary judgment, we examine the factual record, and reasonable inferences that can be drawn from those facts, in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).
Plaintiff Judy M. Young was hired by defendant DHL Express (USA), Inc. ("DHL") in November 2003 as an account representative in its South Plainfield office. At the time, she was fifty years old and she had an associate's degree in science from Union County College. According to her resume and her application for employment with DHL,*fn1 plaintiff had previously worked in sales and account management for various domestic and international shipping corporations since 1982, approximately twenty-one years.
As part of the application process, plaintiff signed an agreement on October 10, 2003, explicitly stating that, "[s]hould [she] become employed by DHL . . . [she] may not conduct any outside business during paid DHL working time." (Emphasis added). Later, on the date of her hire on November 10, 2003, plaintiff signed a "Confidentiality and Conflict of Interest Statement and Agreement," which included comparable language. She also signed a statement acknowledging that she had received the DHL Employee Handbook (the "Handbook") and that it was her responsibility to read and understand its contents.
Among other things, the Handbook expressly prohibits employees from "performing outside business during paid DHL working time[.]" Further, the Handbook provides that "[o]utside employment should not cause poor job performance, absenteeism, tardiness, leaving early or refusal to travel on company business[.]" It specifically prohibits the "falsification or destruction of any time-keeping, financial, employment or company record, including and without limitation, time sheets, expense reports[,] and applications for employment."
The Handbook contains several provisions that address the workplace environment. It recites that "DHL is committed to providing a work environment free of unlawful harassment based on such factors as race, color, creed, citizenship status, religion, sex, sexual orientation, national origin, ancestry, age, disability, medical condition, marital status, or status as a Vietnam-era or other veteran." (Emphasis added). In this same section, the Handbook states that "[e]ach member of management is responsible for creating an atmosphere free of unlawful harassment and discrimination, and for reporting any instances to Human Resources." Later, the Handbook states that "DHL expressly prohibits" sexual harassment in the form of "[o]ffensive comments, jokes, innuendoes, and other sexually oriented statements, either verbal or written." The Handbook also proscribes "[i]nappropriate jokes, derogatory remarks or slurs . . . relating to another person's race, age, disability, religion, national origin, sex[,] or sexual preferences" and "using abusive or vulgar language[.]"
The Handbook spells out a formal procedure for "complaints of unlawful harassment or discrimination[,]" noting that "[i]f [a DHL] employee believes any . . . harassment has occurred in the workplace, the employee should promptly report the incident to the immediate supervisor." The Handbook further states that "[i]f the employee believes it would be inappropriate to discuss the matter with the immediate supervisor, the complaint can be reported directly to a higher level of management or to Human Resources, who will undertake an investigation." The Handbook makes it clear that "[a]ll complaints will be investigated[,]" and that "DHL prohibits any form of retaliation against any employee for filing a bona fide complaint under this policy or for assisting in a complaint investigation."
At the outset of plaintiff's employment, she spent three months in DHL's New York City office. After that, plaintiff was transferred to South Plainfield, where she worked as a sales representative under the District Sales Manager, Scott Goodwin. Six months later, in September 2004, Goodwin was promoted; he was replaced as District Sales Manager by Mike Massagli. At that time, the "sales team" in South Plainfield consisted of defendant Kiel Eckhardt, who was then a major account executive; six account representatives, four of whom were male and, including plaintiff, two of whom were female; and one secretary.
While Massagli was District Sales Manager, plaintiff was promoted to Account Executive in January 2005. In her performance evaluation for 2004--which Massagli filled out and co-signed with her on March 15, 2005--plaintiff was given a very favorable rating.
As part of her duties as an account executive at DHL, plaintiff was required to enter her sales appointments for each week into a software program known as COMET. According to plaintiff, she was instructed by her supervisors to make false appointment entries into COMET during certain time periods, such as when she was "doing a computer install," or when she was attending to an existing customer.*fn2
After she started working at DHL, plaintiff began to seek a second associate's degree, taking courses at Middlesex County College and pursuing a concentration in psycho-social rehabilitation. According to plaintiff, she told Massagli and a co-worker about her enrollment in these college classes.
In August 2005, plaintiff began a clinical internship at Collaborative Support Programs of New Jersey ("CSP") in Freehold. The internship was in furtherance of the requirements for her associate's degree.
In the first week of her internship at CSP, plaintiff twice logged in four hours--from 10:00 a.m. until 2:00 p.m.--on Tuesday, August 30, 2005, and Wednesday, August 31, 2005. The next week, according to her internship timesheet, she spent eight hours--from 9:00 a.m. until 5:00 p.m.--at CSP on Wednesday, September 7, 2005, and four hours--from 10:00 a.m. until 2:00 p.m.--at CSP on Thursday, September 8, 2005. From that point until the end of October 2005, plaintiff routinely logged in four hours a day--from 10:00 a.m. until 2:00 p.m.--at CSP on Tuesdays and Thursdays, and eight hours a day on Sundays.
Through the third week in November 2005, plaintiff continued to attend her internship at CSP every Tuesday and Thursday, frequently increasing her hours by arriving there at 8:00 a.m. instead of 10:00 a.m. Then, on three separate weekdays in late November and early December 2005, plaintiff spent eight full hours at CSP.
Meanwhile, in December 2005, Massagli was promoted to a higher position within DSL; in place of Massagli, Eckhardt was promoted to District Sales Manager of the South Plainfield office. The only other female salesperson in the South Plainfield office resigned in 2005 to take another job. Plaintiff claims that after that female salesperson's departure, the other account representatives in South Plainfield--now all men--began to use vulgar language around the office within her hearing, sometimes about the female salesperson who had resigned.
For example, plaintiff alleged that one of the male account representatives made sexist comments such as: "they do not need women around here since they call in sick too much due to their monthly cycle," "females cannot manage accounts as well as males," "females are out of control and cranky when they get their period," and "females are lazy and incompetent." She also alleged that her male co-workers, two of them in particular, would discuss the details of their "sexual conquests" in the open office. Plaintiff alleged that the same male employees, along with another of the male account representatives, used particularly vulgar language to describe female genitalia and sexual situations.
According to plaintiff's answers to interrogatories, Eckhardt was present during these inappropriate conversations. Although plaintiff conceded that Eckhardt did not actively participate in the vulgar commentary, she alleged that he did nothing to stop it. Plaintiff claimed that she heard the vulgar language from her co-workers about "every two to three weeks." However, she admitted in her deposition that the comments were never made directly to her, nor were they made inferentially about her.
In the latter part of December 2005, plaintiff resumed her internship at CSP, keeping the same hours there on Tuesdays and Thursdays as she had done in the fall.
In early 2006, Eckhardt began to notice that he was receiving e-mails from plaintiff that were time-stamped at 7:00 or 7:30 a.m., but that when he got to the office at 8:00 a.m. she was not there and she would not return until late in the afternoon. He began to see a decline in plaintiff's sales activity, noting that she was not consistently bringing in as much new business as she had before.
Eckhardt confronted plaintiff with his observations in an informal meeting in February 2006. She responded that she was simply having "a string of bad luck," but assured Eckhardt that she was "pounding the pavement, still knocking on doors[.]"
As of a month later, the trend in plaintiff's sales had not improved. Knowing that plaintiff was attending college, Eckhardt suspected that she was doing school work during office hours. To confirm his suspicions, on March 21, 2006, Eckhardt surreptitiously followed plaintiff from DSL's South Plainfield office to CSP's Freehold location.
Eckhardt was on the phone with a colleague from the South Plainfield office when he saw plaintiff go into the CSP facility. He asked the colleague to do an internet search to determine what type of business CSP was. When the colleague informed Eckhardt that CSP was a mental health rehabilitation center, Eckhardt presumed that plaintiff "was going there for her own personal reasons[.]"
Eckhardt initially decided that he "wasn't going to bring it [her daytime presence at CSP] up" with plaintiff. He recalled being open to discussing plaintiff's mental health needs "[i]f it was something she wanted to bring up. . . . If not, it was an ...