October 31, 2011
LOUANNE NORTON-WEHNER, PLAINTIFF-APPELLANT,
THE STATE OF NEW JERSEY AND THE NEW JERSEY DEPARTMENT OF TRANSPORTATION, DEFENDANTS-RESPONDENTS, AND ROBERT WERKMEISTER, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3777-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued February 3, 2011
Before Judges Fuentes, Gilroy and Nugent.
This appeal arises from a complaint filed by plaintiff, Louanne Norton-Wehner, against her employer, the State of New Jersey, the New Jersey Department of Transportation (DOT), and Robert Werkmeister under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, alleging a hostile work environment based on sexual harassment and constructive discharge. N.J.S.A. 10-5-12(a). A jury returned a verdict in favor of defendants, finding insufficient evidence to sustain plaintiff's allegations. Plaintiff now appeals from the verdict and from the trial court's earlier ruling granting partial summary judgment to defendants and dismissing plaintiff's demand for punitive damages as a matter of law. We affirm.
At the time of trial in March 2010, plaintiff was fifty-one years old and had worked for the DOT for over twenty-six years. The relevant time period for her cause of action, however, is between 2001 and 2006, when plaintiff was employed as a Project Engineer in the DOT's Freehold Regional Office. Plaintiff's direct supervisors during this timeframe were Adam Iervolino and Lynn Russo, both of whom reported to Werkmeister, the manager of the Freehold Local Aid office.
Plaintiff testified that on various unspecified dates in 2001 she saw "images of naked women" on Werkmeister's office computer. She "discussed" these events with Russo, her direct supervisor, who told her that Werkmeister's nickname around the office was "The Mayor of Hooterville." According to plaintiff, this "conduct with the computer" by Werkmeister continued "for awhile," but ended sometime in 2001. From 2002 to 2005, plaintiff did not see Werkmeister in possession of or otherwise involved with any kind of pornography.
It is undisputed that Werkmeister had pornographic images on his office computer during 2001 that he accessed and viewed on a daily basis while at work. An internal DOT investigation discovered these images and Werkmeister was disciplined for his misconduct. At trial, plaintiff produced a list of 2,500 pornographic websites found in Werkmeister's office computer. A redacted version of this material,*fn1 omitting the specific names of the websites, was admitted into evidence. We note, however, that no complaints of sexual harassment were brought against Werkmeister by any DOT employee in connection with this issue.
At trial, plaintiff did not dispute that she received training on the State's sexual harassment policies prohibiting discrimination, harassment, or hostile work environment in the workplace in May 1998 and April 2000. She also received specific training in assertive communications, negotiations techniques, and "dealing more effectively with conflict." Additionally, she underwent "prevention of sexual harassment" training in 2001, supervisory training in 2002, and "prohibiting discrimination in the workplace" training in November 2005.
The principal grounds for this cause of action allegedly arose in 2005. Plaintiff testified that her work duties at that time required her to interact with Werkmeister on a daily basis. Although they traveled separately, she and Werkmeister typically arrived at work at the same time, between 6:30 a.m. and 7:00 a.m. They were usually the only people at the office. Plaintiff gave the following response to her attorney's question: "Did anything in [Werkmeister's] behavior in the office in late 2005 upset you?"
PLAINTIFF: I would go into [Werkmeister's] office in the early morning to talk to him or get something signed. And it appeared to me that he was looking at something at his desk or at his table, and it appeared to [m]e he was moving rapidly in his chair. PLAINTIFF'S COUNSEL: Did you ever see what he was viewing at his desk?
PLAINTIFF: I saw it one time.
PLAINTIFF'S COUNSEL: What did you see?
PLAINTIFF: It would appear to me to be a pornographic magazine.
PLAINTIFF'S COUNSEL: Can you describe the images you actually saw?
PLAINTIFF: Appeared to be naked women, two naked women. (emphasis added).
Plaintiff did not see Werkmeister's "male organ" or even his pants opened. When asked directly by her attorney if she thought Werkmeister was masturbating, she replied: I didn't think it could be anything else. It was what he was looking at and the way he appeared. That's what it looked like." According to plaintiff, this behavior by Werkmeister occurred "about once a week" from late summer or early fall 2005, through the beginning of January 2006.
Plaintiff reported this to Russo, her direct supervisor, by telling her that she "thought [Werkmeister] was looking at porn." (emphasis added). Plaintiff talked to Russo about this "numerous times." According to plaintiff, Russo reacted with disgust. Plaintiff made a similar allegation to her other supervisor, Ierviolino, "[a] couple of times" from 2005 to 2006. Plaintiff also spoke about these incidents with David Kuhn, the Director of the Local Aid and Economic Development for the DOT from 2003 to 2007, and Werkmeister's supervisor. Finally, plaintiff told Cheryl Warren and Rochelle Harrison, both from the DOT's Division of Civil Rights/Affirmative Action, that she "thought" Werkmeister was masturbating in the office, while looking at a picture of two women that "appeared to be naked."
On cross-examination, plaintiff admitted that, beyond describing the timeframe as "late summer or early fall," she could not recall any specific dates concerning Werkmeister's alleged incidents of masturbation. With respect to the alleged pornographic magazine, plaintiff conceded that she only saw it once during the entire relevant timeframe. On this one occasion, she only saw the images of two women; she could not describe, however, their age, race, or hair color. With respect to the multiple incidents of alleged masturbation by Werkmeister, plaintiff conceded that she only saw his upper body because his lower body was concealed by a desk or table. Thus, she did not see his left elbow, wrists, hands, pants, or his waist. Werkmeister never made any sexual comments to her or otherwise looked at her in a luring or lascivious manner. Finally, plaintiff also indicated that the "behavior" stopped after she reported the incidents to the DOT's Division of Civil Rights in February 2006.
The line of questions most damaging to plaintiff's credibility concerned a diary that plaintiff kept at work from 2003 through 2006. The diary was admitted into evidence as a defense exhibit. Defense counsel then questioned plaintiff about several diary entries made from January 5, 2006, through March 29, 2006. Despite the meticulous nature of the entries, documenting the mundane details of office life, there were no entries concerning alleged incidents of masturbation by Werkmeister.
Of particular importance, plaintiff did not mention or otherwise memorialize in her diary the February 2, 2006 meeting she had with Kuhn, Warren, and Harrison to discuss her allegations against Werkmeister. She also failed to note Werkmeister's return to work on March 15, 2006 after being temporarily reassigned to Trenton. By contrast, plaintiff made several references noting the exact time various DOT employees, including Werkmeister, arrived and left the Freehold office. Plaintiff also admitted that she used the 2006 diary to chronicle Werkmeister's activities in the office. These entries included a notation that Werkmeister "left me in charge every day since Lynn [Russo] retired and Adam [Iervolino] went out with back surgery!"
Plaintiff first applied to retire in the summer of 2005, but withdrew the application because she was not able to sell her house. She resubmitted her retirement application on March 24, 2006, approximately ten days after Werkmeister returned, and formally retired on June 1, 2006. This date coincided with her husband's retirement from his State employment.
Werkmeister testified as an adverse witness*fn2 as part of plaintiff's case in chief. He admitted to using his office computer in 2001 to view pornography on a daily basis, and usually in the early morning hours, until he was "caught" in January 2002. The pornographic images he viewed included "full frontal nudity of women," "women in suggestive poses," and occasionally "naked women and men engaged in sexual acts." He was disciplined for the misuse of State equipment in April 2002, was suspended for fifteen days without pay, and ordered to participate in counseling. He also acknowledged that viewing pornography at work was against DOT's sexual harassment policy.
Werkmeister testified that in 2005 he found a pornographic magazine during building renovations in the Freehold office and put it in his desk drawer. He looked at it "from time to time" during the early morning hours. Although he did not know definitively, he conceded that plaintiff may have come into his office during the times he was looking at the magazine. As a general matter, he used papers on his desk to conceal the magazine when anyone came into the office. He also looked at it inside a newspaper.
On cross-examination by defense counsel, Werkmeister denied ever masturbating in his office. He also claimed to have a "bad back" for which he receives chiropractic treatment on a regular basis. Werkmeister told the Division of Civil Rights that he "moves a lot" on his desk chair doing exercises to alleviate his back injury. He offered this to explain plaintiff's allegations that his movements while seated behind his desk appeared to her as masturbation. Werkmeister also testified at deposition that he rubs his thigh and the underside of his leg to relieve numbness on his foot.
Plaintiff also called Kuhn, Werkmeister's supervisor, as part of her case in chief. He testified that the pornography on Werkmeister's computer was discovered in 2001 and 2002 as part of a "random investigation" of the computer system, not in response to complaints of sexual harassment. The investigation compiled a list of the pornographic websites Werkmeister viewed on his DOT computer.
Kuhn confirmed that plaintiff told him that she saw pornographic material on Werkmeister's desk only one time. She told him about Werkmeister's movements, which in her judgment, appeared to be masturbation. Plaintiff presented Kuhn with a draft memorandum that she wrote dated January 18, 2006, summarizing her allegations against Werkmeister. Plaintiff concluded this memorandum by noting that Werkmeister doesn't stay around the office very long during the day. He uses a State vehicle to go to and from home even though it is not authorized in that manner. He leaves the office daily to deliver mail to Engineer's [sic] and Municipalities, and some times he just leaves early without having to charge time as the rest to the [sic] State employees in the office are required to do.
Kuhn reported plaintiff's complaint against Werkmeister to DOT's Division of Civil Rights. Investigators from the Division met with plaintiff that same day. Kuhn also directed Werkmeister to report to the Trenton office during the pendency of the investigation. Plaintiff's complaint was the only one filed against Werkmeister. Defendants then called Iervolino and the two Division of Civil Rights investigators assigned to ascertain the validity of plaintiff's allegations against Werkmeister. Their testimony corroborated the account of events described at length infra.
The Division of Civil Rights issued a report on May 10, 2006, which was admitted into evidence. The Division found that Werkmeister admitted to having a magazine in his office but only because he did not know how to dispose of it. Werkmeister was disciplined on August 8, 2006. He was suspended for five days, and the suspension was held in abeyance pending his completion of counseling and additional training.
We start our discussion by addressing plaintiff's argument that the jury instructions and interrogatories had the capacity to mislead the jury. In charging a jury, a trial court must explain the applicable law using "clear understandable language," and then relate those legal principles to the issues in the case. Toto v. Ensuar, 196 N.J. 134, 144 (2008).
To establish a hostile work environment claim based on sexual harassment, a plaintiff must show that "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." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 181 (2008) (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)). The "but-for" element is "automatically . . . satisfied" when the complained of conduct is "sexual or sexist in nature." Lehmann, supra, 132 N.J. at 605.
The Model Jury Charge for a hostile work environment claim arising from sexual harassment is "based extensively on" Lehmann. See N. J. Model Jury Charge (Civil), 2.25, "Hostile Work Environment" (1999). The first element of a hostile work environment claim based on sexual harassment reads:
First, plaintiff must prove that the conduct occurred because of her sex. Stated differently, plaintiff must prove that the conduct would not have occurred if she had been a man.
When the harassing conduct is sexual or sexist in nature, the "because of" sex element is automatically satisfied. Thus, for example, if plaintiff alleges that she has been subjected to sexual touching or comments, or if she alleges that she has been subjected to harassing comments about the lesser abilities, capacities, or the "proper role" of members of her sex, she has established that the harassment occurred "because of" her sex.
Even conduct that is not sexual or sexist in nature can constitute sexual harassment. However, when the conduct is not sexual or sexist in nature, the plaintiff must produce some evidence to show that the conduct occurred "because of" her sex. For example, the plaintiff might show that such harassment was accompanied by harassment that was sexual or sexist in nature. Or, she might show that only women suffered the harassment. All that is required is a showing that it is more likely than not that the harassment occurred because of the plaintiff's sex.
To prove that the conduct occurred because of her sex, the plaintiff does not have to prove that the employer or supervisor intended to harass her or intended to create a hostile working environment. The employee's or supervisor's intent is not at issue. The issue is simply whether the conduct occurred because of plaintiff's sex.
If you find that the conduct would have occurred regardless of plaintiff's sex, then there has been no unlawful sexual harassment. For example, if a supervisor is equally crude or vulgar to all employees, regardless of their sex, no basis exists for a sexual harassment claim and you must return a verdict for defendants on the plaintiff's claim of sexual harassment.
If, on the other hand, you find that the conduct did occur because of plaintiff's sex, then you must decide the second element. [Model Jury Charge 2.25 (emphasis added).]
As required by Rule 1:8-7(a), the trial court met with the attorneys to discuss the proposed jury instructions. The judge informed the parties of his intention to charge the jury based on Model Jury Charge 2.25. In this appeal, plaintiff argues that the trial judge erred when he included the "because of sex" element in the model charge because this issue was not disputed, and its inclusion in the charge had the capacity to confuse the jury. However, that was not plaintiff's position when the trial judge addressed this issue at the charge conference. The record shows that the trial judge specifically informed the parties of his intention to read the model charge with the "because of sex" language. Defense counsel was the only attorney who objected to this language being included in the charge. Plaintiff's counsel specifically noted his assent to the trial judge's ruling.
On the day after the initial charge conference plaintiff's counsel asked the trial court to instruct the jury that the "because of her sex" element here is satisfied as a matter of law because the conduct involved in this case was "sexual" in nature. Overruling defense counsel's objection, the court charged the jury with the language requested by plaintiff's counsel. Plaintiff's request was superfluous, however, because the original model charge read by the trial court included this admonition: "When the harassing conduct is sexual or sexist in nature, the 'because of' sex element is automatically satisfied." In short, the charge reflected a correct statement of the law. Lehmann, supra, 132 N.J. at 605.
Plaintiff also claims that the jury interrogatory should not have included the "because of her sex" language. We review this argument under the plain error standard in Rule 2:10-2, because plaintiff did not raise this issue before the trial court as required by Rule 1:7-2. We discern no legal error in the wording of the interrogatory because the jury instructions provided the jury proper guidance on this question.
Finally, plaintiff argues that the trial court erred in denying her motion for new trial because the jury verdict was against the weight of the evidence.
We are bound to uphold a denial of a motion for a new trial on the ground that the verdict was against the weight of the evidence, "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. In making this determination, we review the record de novo, "deferring to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record -- described by the Court as such conditions as witness credibility and demeanor and the 'feel of the case.'" Carrino v. Novotny, 78 N.J. 355, 360 n.2 (1979) (quoting Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969)).
After carefully reviewing the trial record, we discern no legal basis for interfering with the collective judgment of the jury. Despite the considerable time and effort spent on presenting evidence of Werkmeister's use of his office computer to view pornographic images, plaintiff's claims of sexual harassment and hostile work environment were not based on the 2001 incident.
This case was about a single incident in which Werkmeister conceded he may have been looking at a pornographic magazine when plaintiff entered his office. Despite this concession, plaintiff's testimony on this issue was, at best, equivocal. Her description of what she allegedly saw was peppered with uncertainty: "It would appear to me to be a pornographic magazine." She expressed the same uncertainty in her description of the alleged incidents of masturbation: "[I]t appeared to [m]e he was moving rapidly in his chair." Furthermore, unlike the magazine, Werkmeister denied he ever masturbated in the office, and there was evidence of a medical explanation for Werkmeister's "movements" while seated behind his desk.
Plaintiff's own diary undermined her credibility by omitting any reference to the alleged incidents of sexual harassment that logically should have been uppermost in plaintiff's mind. As we have described in detail, defense counsel's skillful cross-examination of plaintiff highlighted these weaknesses in plaintiff's case and provided ample support for the jury's verdict. R. 2:11-3(e)(1)(B). The argument attacking the denial of punitive damages on summary judgment is rendered moot by the jury's verdict. The remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).