On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1849-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and St. John.
Plaintiff Casey Mann appeals from the summary judgment dismissal of her complaint against her employer, defendant Staples, Inc. The motion judge found plaintiff failed to present a prima facie case evincing sexual harassment or retaliation. On appeal, plaintiff maintains the judge erred in dismissing her complaint, arguing defendant's anti-harassment policies were inadequate and not properly implemented, allowing a hostile work environment to develop, as defendant's deficient practices caused her to experience continued sexual harassment, which should have ended following her first accusation. Plaintiff also maintains the judge erroneously ignored her retaliation claim alleging her work hours were reduced after reporting her co-workers' harassing conduct. Following our review, we are not persuaded and affirm.
We present the facts in a light most favorable to plaintiff, the party opposing summary judgment. Livsey v. Mercury Ins. Grp., 197 N.J. 522, 525 n.1 (2009); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
In 2007, while plaintiff worked as a part-time sales associate in defendant's Princeton store, a full-time sales associate, Ricky Brown, began "a pattern of systematic sexual harassment." After plaintiff extended Brown a ride home, he began to "follow [her] around asking [her] out and telling [her] to touch his guns (arm muscles)." Brown made further inappropriate comments to plaintiff, including, she "had nice legs," "looked hot," and "looked good in [a] dress she was wearing." Plaintiff informed Brown she had a boyfriend, asked him to stop bothering her and to just do his work. She did not immediately report these actions as harassing.
Sometime in May 2007, plaintiff was aiding Brown in the completion of a "certification." The two were in a closed area of the store known as the copy center, when Brown came up behind plaintiff, said "thank you" and attempted to kiss her on the lips. However, she turned away and he kissed her cheek. Plaintiff told Brown she was offended "and he was somewhat apologetic about it, but he thought it was funny." At the prompting of a co-worker, plaintiff orally reported the incident to the store's sales manager, Mike Benci, "the next time she saw him," "like a week later." Although Benci told Brown to "leave [plaintiff] alone," she felt "[h]e didn't really take it seriously. He just told [plaintiff] he would tell [Brown] to knock it off."
Other instances of unwelcomed conduct by Brown occurred, ultimately prompting plaintiff to file a formal written complaint reporting the sexual harassment. For example, after the kissing incident, Brown crudely told plaintiff she "had a nice ass[,]" he "likes to watch her butt jiggle," and "asked her if she liked to 'take it from behind[.]'" Then in June 2007, while in the store, Brown "reached around [plaintiff] from behind" and attempted to squeeze her right breast, initiating contact with her body. Plaintiff complained to Benci the next morning, stating she did not want to work with Brown anymore. Benci informed the general manager, Steve Cinkowitz, and the two supervisors spoke to plaintiff. Benci agreed not to schedule plaintiff during Brown's shift and reported her complaints to the regional human resource manager, Maureen Ostacher.
When these incidents between plaintiff and Brown occurred, defendant had in place an anti-harassment policy and complaint process. The policy, set forth in a nine-page document entitled "Harassment Prevention Policy," prohibited harassment of any kind and forbade retaliation against a victim in any form. The policy outlined specific procedures to be followed upon receipt of a verbal or written workplace harassment complaint. Defendant also provided an internet anti-harassment training program, which all new employees were to complete within the first week of employment. However, there was no system tracking showing which employees had actually completed the training. Further, supervisors were required to undergo an eight-hour live anti-harassment training session.
After Ostacher's discussion with Benci on June 21, 2007, she opened a formal investigation log, commenced interviews, and compiled a report regarding plaintiff's allegations. Ostacher first spoke to plaintiff, who related the difficulties she had with Brown over the previous two months. On the same day, Ostacher questioned six other employees with regard to their observations of Brown's interactions with other employees. Mike Mihalow, plaintiff's boyfriend, related plaintiff complained to him many times about things Brown had said, but he did not include any specific complaints. Other employees observed Brown following some female co-workers in the store and witnessed him put his arm around Tiffany Ross; however, Ross did not confirm this and no one witnessed any inappropriate interactions between plaintiff and Brown. A few days later, Ostacher interviewed Brown, who generally denied he engaged in any harassing behavior with his co-workers.
At some point, management learned that Brown may not have received the workplace anti-harassment training. After concluding her investigation and consultation with Lynn Shilbey, who was another human resources manager, Ostacher recommended Brown receive verbal counseling and he was asked to acknowledge receipt and understanding of another copy of the company's Harassment Prevention Policy. Plaintiff's request to work a different shift from Brown was honored. Following this intervention, no additional problems arose.
In September 2007, plaintiff was scheduled to work less hours than she had previously received, so she accepted a part- time position at Radio Shack. In October 2007, she consulted Benci and the new store manager, Bill Hartz, seeking more time. Plaintiff was told they would try to schedule her for additional hours, but there were limited part-time opportunities because of the lull following the back-to-school sales. Also, Hartz explained full-time employees, like Brown, were entitled to priority in scheduling.
Also, plaintiff acknowledged she had undertaken additional commitments, including college classes and physical therapy, which also limited her availability. Additionally, defendant had honored her request not to be scheduled during Brown's work shift. Defendant did offer plaintiff time at the Lawrenceville store three miles away, but she declined stating she "would only accept hours at the Princeton location[,]" even though she had previously worked in Lawrenceville and other stores.
On January 31, 2008, plaintiff complained about a harassing incident with her then immediate supervisor, Don Peterson. Peterson had ridiculed plaintiff's boyfriend and she told him to stop. Plaintiff began walking to the break room and Peterson followed her, scolding that she needed his permission prior to going to the bathroom, speaking to Benci, or doing anything else. Plaintiff began to cry and Peterson continued to curse at her, calling her a "skank ass bitch[.]" During the exchange, plaintiff uttered retorts, using offensively course language.
Later, plaintiff informed Hartz she wanted to file a complaint. Hartz suggested both she and Peterson could be fired as a result of their conduct. Plaintiff proceeded with the complaint, which resulted in Peterson's discipline for violating defendant's policy against workplace violence. No further inappropriate behavior occurred.
Plaintiff filed her Superior Court complaint on July 18, 2008, alleging sexual harassment and a hostile work environment in violation of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Following discovery, defendant moved for summary judgment, which plaintiff opposed. The motion judge considered plaintiff's theories of liability, namely the negligent "implementation, monitoring and enforcement of its workplace harassment policy," and vicarious liability based upon Peterson's actions and retaliation.
The court found "as a matter of law, an employer is [not] automatically negligent if such [employee] training did not take place." The court further noted the incident with Peterson was a one-time incident, which defendant immediately addressed as a "breach of its workplace anti-violence policy." Finding the incidents with Brown and Peterson were remedied after the complaints were made and managers became involved, so that no further harassment occurred, the motion judge concluded plaintiff failed to support her claims of negligence. Further, the court found plaintiff failed to establish a "prima facie case of retaliation" because the reduction in plaintiff's work hours occurred four months after she lodged her complaints, which was "indicative that there was not a causal connection between the report . . . and the reduction"; plaintiff was not the only employee affected by the limited work availability as defendant needed less workers during this time period; plaintiff received a raise in pay; ...