On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-764-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Graves and Koblitz.
Plaintiffs Moneck Wallace and Tina Stewart appeal from the May 10, 2010 order granting summary judgment to their employer, the Mercer County Youth Detention Center (MCYDC). They appeal only the dismissal of count one of their complaint, alleging a hostile work environment arising from persistent sexual harassment by a fellow employee under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.*fn1 Plaintiffs claim that a co-worker, Jerel Livingston, committed acts of sexual harassment that, although promptly reported, were not properly addressed by the detention center. Plaintiffs also contend that both supervisors and employees were uninformed about how to find the Mercer County's sexual harassment policy, which is contained in the Mercer County Policy Prohibiting Discrimination, Harassment or Hostile Environments in the Workplace (Policy). They also assert that inadequate sexual harassment training of supervisors, coupled with unclear monitoring and investigative procedures, rendered it ineffective.
The trial judge determined that plaintiffs had presented a prima facie case for sexual harassment, but granted summary judgment, finding that the MCYDC could not be held vicariously liable because Livingston was not a supervisor of either plaintiff and because Mercer County had a sexual harassment policy in place. Because the trial judge misconstrued pertinent case law and material issues of fact exist, we reverse.
The depositions of the witnesses revealed the following facts. At the time of the alleged harassment, Wallace worked the 11:00 a.m. to 7:00 p.m. shift, while Stewart worked the 3:00 p.m. to 11:00 p.m. shift with Livingston. Wallace claimed that, on several occasions, Livingston attempted to pursue her sexually. Although she expressed to him that she was not interested, Livingston continued to request her phone number and repeatedly made comments about how he was sexually attracted to her. On one particular occasion, he made kissing noises close to her face.
Stewart claimed that Livingston repeatedly made comments about her buttocks and how he would love to kiss her neck. She discouraged these comments, but he continued to make them. On March 8, 2006, both Stewart and Livingston were required to work an additional late shift from 11:00 p.m. to 7:00 a.m. At one point, Livingston rubbed up against Stewart's leg, first rubbing her outer-thigh and then trying to proceed to her inner-thigh. Stewart pushed Livingston away and retreated to the bathroom. She stayed in the bathroom for the duration of her hour-long break. When she returned, Livingston was taking his break. She locked the door to ensure that she would not have to interact with him for the remainder of the shift. After this incident, Stewart claimed that when she walked by Livingston he stared at her and sometimes moaned in a sexual manner.
Both women filed an incident report with their supervisor, Gloria Hodges. Hodges then passed the reports along to the MCYDC assistant superintendent. Hodges admitted that Livingston was given copies of both plaintiffs' reports so that he could respond to the allegations. During the following week, Livingston continued making inappropriate comments to Stewart and snickered at Wallace repeatedly in an antagonistic manner. Stewart claimed that she ate lunch in her car both before and after filing the incident report to avoid Livingston's unwelcome comments.
Plaintiffs' incident reports were later sent to Mercer County's personnel department by email on April 24, 2006. The County administration did not contact them until May 19, 2006. Aixa Aklan, the assistant personnel director for Mercer County at that time, was assigned to investigate the sexual harassment claims. Her only sexual harassment training consisted of a state-sponsored class that she had attended approximately ten years before her deposition in 2009 and a class on human resources law that she attended while in college.
After interviewing plaintiffs, Livingston, and others, Aklan prepared an investigation report, which concluded that there "wasn't enough information to sustain what [she] was investigating." With regard to Stewart, Aklan provided the following five reasons for her determination:
1. Did not report incident immediately and only when asked by the Supervisor on 4/13/06.
2. Exchange of cell phone was omitted in Stewart interview.
3. Information regarding friendship with Wallace was withheld.
4. Expressed that she did not want him terminated.
5. No witnesses were present at time of alleged wrongdoing.
Aklan supported her failure to sustain Wallace's report by ...