Reargued Telephonically May 18, 2015.
Approved for Publication June 24, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6863-10. June 4, 2014, Argued. September 16, 2014, Decided. Remanded by Supreme Court March 16, 2015.
Richard E. Yaskin argued the cause for appellant ( Mr. Yaskin and William Riback, attorneys; Mr. Yaskin, on the brief).
Erin L. Peters argued the cause for respondent ( Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys; Daniel B. McMeen, of counsel and on the brief; Ms. Peters, on the brief).
Before LIHOTZ, MAVEN and HOFFMAN,
[441 N.J.Super. 325] PER CURIAM
On March 16, 2015, the Supreme Court remanded this matter, in light of the recent opinion, Aguas v. State, 220 N.J. 494, 107 A.3d 1250 (2015). Previously, we considered the summary judgment dismissal of plaintiff Brian Dunkley's complaint against his employer, defendant S. Coraluzzo Petroleum Transporters. Plaintiff's complaint alleged violations of the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD). Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J.Super. 366, 370-73, 98 A.3d 1202 (2014), remanded, 221 N.J. 217, 110 A.3d 929 (2015). Plaintiff claimed he was the victim of racial discrimination by Richard Harrington, an employee assigned to train him. Ibid. Plaintiff also " insisted he endured negative consequences after reporting Harrington's conduct," which he maintained ultimately led to his resignation. Id. at 372, 98 A.3d 1202. Plaintiff asserted defendant was liable under the LAD for negligence and was vicariously liable by allowing " conduct amounting to a hostile work environment . .., which caused his constructive discharge" because Harrington was his supervisor. Id. at 373, 98 A.3d 1202.
We affirmed the summary judgment dismissal of plaintiff's complaint, determining defendant was not liable because once plaintiff informed his supervisors he was experiencing racial discrimination, [441 N.J.Super. 326] they immediately took action in accordance with defendant's " properly defined" anti-harassment and anti-discrimination policies, to " protect plaintiff from further discrimination." Id. at 381, 98 A.3d 1202. " [T]he harm was remedied immediately and effectively[,]" as plaintiff admitted he experienced no further discriminatory interactions or harassment. Id. at 383, 98 A.3d 1202. As to plaintiff's assertions of " perceived ostracism by co-workers," we concluded such allegations were insufficient to support claims for constructive discharge or hostile work environment under the LAD. Id. at 382-83, 98 A.3d 1202.
On remand, the Court ordered we address, " at a minimum," two specific issues:
(1) [W]hether there is a genuine issue of material fact with respect to plaintiff's direct claim for negligence under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; and
(2) [W]hether there is a genuine issue of material fact with respect to plaintiff's claim for vicarious liability for the actions of a supervisor under the LAD based on a hostile work environment.
[ Dunkley v. S. Coraluzzo Petroleum Transporters, 221 N.J. 217, 110 A.3d 929 (2015).]
We permitted limited briefing and conducted a telephonic argument on these issues. In light of the Court's holding in Aguas, plaintiff maintains summary judgment must be vacated and the matter remanded to the trial court for review of the materially disputed facts surrounding whether defendant adequately acted to prevent discrimination, and also to determine whether Harrington was his supervisor at the time he made the racially-charged remarks. Defendant disagrees and asserts plaintiff's proofs fail to sustain a claim for either defendant's direct negligence or vicarious liability because its policies were published and properly implemented to terminate the offending conduct.
We have considered plaintiff's arguments under the Court's guidance set forth in Aguas and conclude plaintiff has presented no factual support showing defendant's conduct was negligent or that it ignored its affirmative duty to prevent discrimination. Defendant adopted well-defined policies to prevent discrimination [441 N.J.Super. 327] in its workplace, trained its employees, and, when informed of harassing discriminatory behavior, implemented procedures to curb the conduct. Further, we reject plaintiff's assertions of vicarious liability for alleged supervisory harassment. The facts show defendant enforced its anti-harassment policy and plaintiff suffered " no employment action." Aguas, supra, 220 N.J. at 523-24, 107 A.3d 1250. Accordingly, we affirm.
Our review begins with a discussion of the Court's recent decision. In Aguas, the plaintiff asserted two LAD claims against her employer, the State of New Jersey, alleging her supervisors subjected her to sexual harassment in the workplace, creating a hostile work environment. Aguas, supra, 220 N.J. at 505, 107 A.3d 1250. These claims included a direct claim for negligence and a claim for vicarious liability. Id. at 506, 107 A.3d 1250. The plaintiff had verbally reported her allegations to supervisors, but never filed a written complaint pursuant to the State's written anti-harassment policy, a copy of which the plaintiff admits she received. Id. at 504, 107 A.3d 1250. The trial court found the plaintiff presented a prima facie hostile work environment claim, but granted the State's motion for summary judgment, because the State established an affirmative defense by showing an effective anti-harassment policy was in place. Id. at 506, 107 A.3d 1250. The policy delineated a reporting procedure through the State's Equal Employment Division, which plaintiff failed to follow. Ibid.
On certification to the Supreme Court, the plaintiff argued the affirmative defense was unavailable in cases of sexual harassment by a supervisor, under the LAD. Id. at 507, 107 A.3d 1250. The Supreme Court examined the plaintiff's vicarious liability sexual harassment claim and the defendant's asserted defenses to the alleged liability. Id. at 499, 107 A.3d 1250.
Initially adopted in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 592, 626 A.2d 445 (1993), the Court recognized employer liability is exclusively governed by principles of agency. Aguas, supra, 220 N.J. at 511, 107 A.3d 1250. An employer is liable for [441 N.J.Super. 328] torts committed by an employee " while acting in the scope of their employment," as well as those committed by employees, even when acting outside the scope of their employment, if:
(a) the [employer] intended the conduct or the consequences, or
(b) the [employer] was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the [employer], or
(d) the [employee] purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the ...