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Louanne Norton-Wehner v. the State of New Jersey and the New Jersey Department of Transportation

October 31, 2011

LOUANNE NORTON-WEHNER, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I

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 ...


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