On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5791-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 4, 2010 - Decided
Before Judges Grall and LeWinn.
Plaintiff Jessica Allen appeals from the dismissal of her complaint charging defendant University of Medicine and Dentistry of New Jersey (UMDNJ) with hostile-work-environment sexual discrimination and retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.*fn1
She also appeals from the denial of her motion to reconsider that dismissal.
The trial judge concluded that UMDNJ was entitled to judgment because it had an "anti-harassment policy," promptly addressed plaintiff's complaint by transferring her harasser and subsequently terminated plaintiff's assignment at UMDNJ due to her job performance, not due to her complaint about harassment. Because genuine factual disputes material to those determinations preclude the award of summary judgment, we reverse and remand for further proceedings.*fn2 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 530 (1995).
In 2006, plaintiff inquired of UMDNJ's human resources department about openings and was referred to Adecco, Inc. Adecco is an employment firm that has an office on UMDNJ's campus. Through that office, Adecco provides workers, which it calls "associates," for temporary positions at UMDNJ. On occasion, UMDNJ offers permanent employment to an Adecco associate when warranted in light of its needs and the associate's performance.
Lajuana Timothy manages Adecco's program at UMDNJ. Her office is on the campus, and she communicates with UMDNJ's managers and the Adecco associates they accept. UMDNJ notifies Timothy of openings, interviews and selects workers from the associates referred by Timothy and informs Timothy when it no longer needs or wants the services of a particular associate. Timothy also serves as Adecco's contact with the associates working at UMDNJ.
Adecco accepted plaintiff as a temporary associate in 2006. In October, she took an assignment as a receptionist at UMDNJ that was ended at UMDNJ's request after a couple of days.
Plaintiff's complaints of sexual harassment arose during her second assignment at UMDNJ. In May 2007, Timothy referred her to Kyra Sinkowsky of UMDNJ for a temporary position in an ambulatory care unit known as UMD Care. Sinkowsky's duties included supervision of about fifty-two patient service representatives (PSRs) who answered telephones, registered patients and scheduled outpatient appointments. Of the approximately fifty-two PSRs, forty-five were UMDNJ employees and the rest were Adecco associates. All of the PSRs did the same work. Sinkowsky interviewed and selected plaintiff for the position.
Jacques Coles and Yolanda Foster were the two "lead-PSRs" in UMD Care during plaintiff's employment. Coles is the person plaintiff later identified as her harasser. Coles and Foster reported to Sinkowsky. As the lead-PSRs, Foster and Coles had offices; the other PSRs had work stations that changed from day to day.
According to plaintiff, Foster and Coles were her supervisors and Sinkowsky told her that. Coles and Foster scheduled lunch periods and breaks and told the PSRs what to do. According to Sinkowsky, however, she supervised the PSRs and was the only one with authority to evaluate, discipline and remove a PSR. The lead-PSRs were expected to assist and train the PSRs, coordinate their monthly staff meetings, audit their work and assign the PSRs to perform the limited number of well-defined tasks required to register patients and keep the lines in UMD Care moving. Although the lead-PSRs had the authority to report problems with a PSR's attendance or performance, only Sinkowsky had the authority to take corrective action, evaluate performance and discipline or remove a PSR. She admitted, however, that she did not observe Coles or Foster while they interacted with the PSRs.
Plaintiff's allegations about Coles' sexually harassing conduct, which he denies, are summarized in the paragraphs that follow. Because UMDNJ was awarded summary judgment, we assume that plaintiff's descriptions of Coles' conduct are true but recognize that a jury must resolve the questions of credibility. Brill, supra, 142 N.J. at 540.
Within days of plaintiff's appointment, Coles was making sexual comments to her, and he continued making them until he was transferred out of UMD Care. Coles commented on plaintiff's clothing, asked about her dates, told her he wanted to date her, described her lips and breasts, and told her how he expected she would behave in a sexual encounter and what he would like to do with her. Coles also shared a fantasy, which involved him watching plaintiff have intimate relations ...