Brian Dunkley v. S. Coraluzzo Petroleum Transporters , 441 N.J. Super. 322 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3252-12T1
BRIAN DUNKLEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
June 24, 2015
v.
APPELLATE DIVISION
S. CORALUZZO PETROLEUM
TRANSPORTERS,
Defendant-Respondent.
_______________________________
Argued June 4, 2014 - Decided September 16, 2014
Remanded by Supreme Court March 16, 2015
Reargued telephonically May 18, 2015 -
Decided June 24, 2015
Before Judges Lihotz, Maven and Hoffman.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Docket No. L-6863-10.
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).
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
(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
(2014), remanded, 221 N.J. 217 (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 lead to his
resignation. Id. at 372. 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.
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, 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. "[T]he harm was remedied
immediately and effectively[,]" as plaintiff admitted he
2 A-3252-12T1
experienced no further discriminatory interactions or
harassment. Id. at 383. 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.
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 (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
3 A-3252-12T1
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 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."
Aquas, supra, 220 N.J. at 523-24. 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. These claims included a direct claim for negligence and a
claim for vicarious liability. Id. at 506. The plaintiff had
4 A-3252-12T1
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. 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. 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. 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.
Initially adopted in Lehmann v. Toys 'R' Us, Inc., 132 N.J.
587, 592 (1993), the Court recognized employer liability is
exclusively governed by principles of agency. Aguas, supra, 200
N.J. at 511. An employer is liable for 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:
5 A-3252-12T1
(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 tort by the
existence of the agency relation.
[Id. at 511 (quoting Restatement § 219).]
See also Lehmann, supra, 132 N.J. at 619.
The Court observed "two primary categories of claims" arise
from the alleged sexual harassment of employees: "a direct cause
of action against the employer for negligence or recklessness
under Restatement § 219(2)(b) . . . [and] vicarious liability
under Restatement § 219(2)(d)." Aguas, supra, 200 N.J. at 512.
"[O]ften discussed in tandem," the Court distinguished the two
types of claims as "analytically distinct from and independent
of one another" and, therefore, each clam "must be addressed
separately." Ibid.
Addressing the plaintiff's claim for the direct action of
negligence or recklessness, the Court noted a plaintiff must
prove an employer "failed to exercise due care with respect to
sexual harassment in the workplace, that its breach of the duty
of care caused the plaintiff's harm, and that [he or] she
6 A-3252-12T1
sustained damaged." Ibid. In defense to allegations of an
employer's direct liability for negligently creating a sexually
harassing hostile work environment, the Court recognized "an
employer's implementation and enforcement of an effective anti-
harassment policy," as "a critical factor in determining
negligence and recklessness claims under Restatement §
219(2)(b)."1 Id. at 499.
Next, the Court addressed the plaintiff's claim for
vicarious liability, noting:
[A]n employee may assert that the employer
is vicariously liable for sexual harassment
committed by its employee because the sexual
harasser purported to act on the employer's
behalf and "there was reliance upon [his or
her] apparent authority," or because the
harasser "was aided in [his or her
misconduct] by the existence of an agency
relation[ship]" with his or her employer,
alleging them.
[Id. at 514 (alterations in original)
(quoting Restatement § 219(2)(d)).]
Although Lehmann and its progeny never expressly "address[ed]
the analytical framework under which an employer's anti-
harassment policy may be considered in a hostile work
1
Restatement (Second) of Agency has been superseded by
Restatement (Third) of Agency (2006). Section 219 of the
Restatement (Second) of Agency, along with §§ 220, 228, 229,
230, 231, 232, 233, 234, 235, 236, 237 and 267 have been
subsumed and consolidated in Restatement (Third) of Agency
§ 7.07.
7 A-3252-12T1
environment harassment claim involving a supervisor," ibid., the
Court noted "that [same] jurisprudence strongly supports the
availability of an affirmative defense, based on the employer's
creation and enforcement of an effective policy against sexual
harassment." Id. at 514, 515-17.
The Court adopted what is known as the Ellerth/Faragher
test for defending claims alleging vicarious liability for
supervisory harassment under Restatement § 219(2)(b), thus
allowing employers to plead, as an affirmative defense, the
adoption and enforcement of an effective policy against sexual
harassment, so long as the employee suffered no tangible
employment action. Id. at 523-24 (citing Burlington Indus. v.
Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d
633, 655 (1998) and Faragher v. City of Boca Raton, 524 U.S.
775, 807-08, 118 S. Ct. 2275, 2292-93, 141 L. Ed. 2d 662, 689
(1998)).
We now turn to our examination of plaintiff's complaint.
In count one, he asserted a violation of the LAD, alleging
defendant "failed to take action" when informed of the "repeated
discriminatory racial remarks" made by Harrington, claiming
"[d]espite the complaint made by [p]laintiff, [defendant] either
took no action to correct or prevent the racial discrimination
and harassment in the workplace or took steps which were not
8 A-3252-12T1
reasonably calculated to end the harassment." Count two alleged
defendant "failed to remediate a course of conduct constituting
racial harassment, discriminatory intimidation, ridicule[,] and
insult of a racial nature, pervasive hostility," creating a
"hostile and offensive work environment that intimidated,
frightened[,] and offended [p]laintiff," as an African-American.
Plaintiff also maintained defendant "delegated the authority to
control the work environment to employees and agents who failed
to remediate any claims of racial discrimination or hostility in
the work environment," causing his constructive discharge, as
set forth in count three.
During oral argument, plaintiff insisted defendant was
negligent in enforcing its anti-discrimination policy because it
did not discipline or fire Harrington and management employees
admitted a lack of knowledge of procedural aspects of the policy
directed to prevent racial and other discrimination. Further,
plaintiff asserted defendant was vicariously liable for
Harrington's racially harassing conduct as he held defendant's
apparent authority while serving as plaintiff's supervisor
during the two-week training period.
Aquas provides a framework for analyzing claims and
defenses offered regarding sexual harassment hostile work
environment claims. With respect to direct claims for
9 A-3252-12T1
negligence or recklessness, the Court's discussion, anchored in
Restatement § 219(2)(b), applies generally to employer liability
for the torts of employees, for any type of discrimination. See
id. at 499 ("[A]n employer's implementation and enforcement of
an effective anti-harassment policy, or its failure to maintain
such a policy, is a critical factor in determining negligence
and recklessness claims under Restatement § 219(2)(b)."). We
also conclude the Court's analysis of an employer's vicarious
liability is limited solely to sexual harassment LAD claims.
Rather, the principles can be tailored and adopted to address
allegations of other discriminatory conduct.
To prevail on a direct claim alleging defendant's
negligence, plaintiff bears the burden to show a defendant
negligently created a discriminatory work environment by failing
to exercise due care with respect to racial discrimination in
the workplace, by breaching the duty of due care, which caused
plaintiff harm. See id. at 512. To defend against such a claim
as discussed in Aguas, defendant may prove:
[T]he existence of: (1) formal policies
prohibiting harassment in the workplace; (2)
complaint structures for employees' use,
both formal and informal in nature; (3)
anti-harassment training, which must be
mandatory for supervisors and managers, and
must be available to all employees of the
organization; (4) the existence of effective
sensing or monitoring mechanisms to check
the trustworthiness of the policies and
10 A-3252-12T1
complaint structures; and (5) an unequivocal
commitment from the highest levels of the
employer that harassment would not be
tolerated, and demonstration of that policy
commitment by consistent practice.
[Id. at 513 (quoting Gaines v. Bellino, 173
N.J. 301, 313 (2002)).]
An employer is not required to meet each and every one of
these factors. Rather, it is a balance of facts and
circumstances to determine whether the employer shows "the
existence of effective preventative mechanisms," Gaines, supra,
173 N.J. at 313, designed to comply with the LAD's defined
purpose "to root out the cancer of discrimination." Cicchetti
v. Morris Cnty. Sherriff's Office, 194 N.J. 563, 588 (2008).
See N.J.S.A. 10:5-12(a). Succinctly, "'the efficacy of an
employer's remedial program is highly pertinent to an employer's
defense'" against liability under the LAD. Aguas, supra, 220
N.J. at 513 (brackets omitted) (quoting Gaines, supra, 173 N.J.
at 314).
Although plaintiff concedes defendant had a formal anti-
harassment policy in place, and acknowledges he received
specific training on the policy with other employees, plaintiff
argues defendant failed to sufficiently satisfy the remaining
Gaines factors. He suggested management employees did not
receive "civil rights" training, there were no effective
monitoring mechanisms "to check the effectiveness of the
11 A-3252-12T1
policies and complaint structures," and his supervisor's conduct
did not demonstrate "an unequivocal commitment" that harassment
would not be tolerated.
To support his argument, plaintiff isolates statements made
in depositions by some of defendant's management employees.
Plaintiff asserts this testimony creates a material dispute of
fact regarding the effectiveness of the anti-harassment policy
and defendant's commitment to combat racial discrimination,
which must be assessed by a jury.
Plaintiff has chosen to edit the deposition transcripts by
including only portions that purportedly contain statements he
construes as favorable, depriving this court of full review of
the context in which all statements were made. Nevertheless, we
have examined each of the statements identified by plaintiff and
viewed the evidence in a light most favorable to him. Davis v.
Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014). We
conclude the record does not support plaintiff's claims of
materially disputed facts regarding defendant's implementation
and enforcement of its anti-harassment policy.
First, management employees did state they received
specific training that addressed discrimination. Elwood
Sickler, plaintiff's direct supervisor, testified he, along with
defendant's other managers, attended sensitivity training
12 A-3252-12T1
presented by an attorney, but was unsure of the exact date,
stating he believed it was in 2010. He also received racial
discrimination training in his prior position in the United
States Marine Corps. Sickler mistakenly thought the Human
Resources Department (HR), which was principally charged with
responding to discrimination complaints, was not in place until
sometime in 2011, but also maintained terminal managers were
supervising drivers, such as plaintiff. The record actually
proves defendant's HR manager was hired in October 2009.
Second, the record includes the employee handbook. One
section entitled "Policy Prohibiting Harassment &
Discrimination" specifically instructs: "Any employee who has a
complaint regarding harassment or discrimination must report the
matter to their manager. If that person is not available, or if
you believe it would be inappropriate to contact that person,
contact the Human Resources Department." The handbook contains
a list of telephone numbers, including that of HR.
Third, plaintiff never made a complaint to his supervisor
or the HR manager, as instructed by the written policy in the
handbook. Harrington's discriminatory conduct came to light
only because Sickler noticed plaintiff failed to report for
work, called him directly, and arranged for plaintiff to explain
what was happening. The next day, Sickler, accompanied by
13 A-3252-12T1
Thomas Spargue, defendant's safety coordinator, and Steve Cohen,
defendant's regional safety manager, met with plaintiff to
review and address his concerns. Dunkley, supra, 437 N.J.
Super. at 372. At that meeting, for the first time, managerial
employees learned of plaintiff's experiences and his expressed
concerns Harrington was "a racist." Prior to the meeting,
Sickler had not received complaints regarding Harrington or
other employees charging them with racially-biased behavior.
Sickler made it clear defendant's policy was "there is no race.
. . . We are all employees." He arranged for plaintiff's
training to be guided by another employee, discussed the
situation with Sprague, and also met with Harrington.
Finally, the record contains plaintiff's acknowledgement he
had no difficulty with his new trainer and, in fact the two "got
along great." Further, plaintiff never saw Harrington again;
did not experience any further racially-discriminatory conduct;
and was not again exposed to racial harassment. Despite these
facts, plaintiff criticized the extent of defendant's
investigation, arguing notes should have been taken during his
meeting with managers, other individuals should have been
interviewed, and Harrington should have been fired. Plaintiff
also recounted the work atmosphere following the meeting and his
placement with a new trainer, saying things were "different."
14 A-3252-12T1
He stated other employees "would shy away" and "nobody would
even talk to [him]," making him feel "uncomfortable" and
preventing him from "getting a fresh start."
Granting all reasonable inferences to plaintiff's evidence,
we reject the suggestion Gaines, as adopted by Aguas, requires
the jury to assess the degree of effectiveness of defendant's
response to plaintiff's complaints when the discriminatory
conduct admittedly was addressed and rectified. Aguas
emphasized the LAD does not impose "strict liability." Aguas,
supra, 220 N.J. at 510-11. We also disagree the jury may assess
or even consider whether an employer's decision not to terminate
an offending employee denotes the discrimination policy as
ineffective.
Here, the facts support the Gaines factors. Defendant
proved it adopted a formal policy prohibiting workplace
harassment and discrimination. Formal training was conducted,
as evinced by the deposition testimony of plaintiff, as well as
Sickler. Viewing the events that transpired here, we determine
defendant's commitment to prohibit discrimination was not mere
lip service. Defendant's managers were proactive: they
initiated contact with plaintiff before he uttered a complaint,
and thereafter swiftly responded by investigating his complaints
15 A-3252-12T1
and implementing procedures to assure plaintiff no longer
experienced discriminatory treatment.
Moreover, defendant's anti-harassment policy included
elements of both formal and informal procedures to receive and
address complaints. See Gaines, supra, 173 N.J. at 313.
Aggrieved employees were instructed to report untoward conduct
to either "their manager" or, if necessary, HR personnel.
Importantly, management initiated contact with plaintiff and
scheduled a meeting; defendant's formal complaint mechanism was
not engaged.
We concede the record is sparse as to whether monitoring
mechanisms were in existence to check the "effectiveness of the
policies and complaint structures." In part, this resulted
2
because plaintiff did not initiate a complaint. However, once
managers were made aware of the situation, they took action
pursuant to defendant's anti-harassment policy and plaintiff was
no longer victimized.
As to whether plaintiff demonstrated a constructive
discharge, his testimony pointed to no tangible action showing
2
It is also worth noting the record contains information
discussing a prior instance of alleged sexual harassment
experienced by one of defendant's employees. The discussion by
the managerial employees regarding this incident reflected the
initiation and implementation of defendant's anti-harassment
policy.
16 A-3252-12T1
retaliatory acts by defendant.3 Rather, he generally related his
sense people were less interactive and more distant with him.
We repeat our originally expressed comments:
We also conclude plaintiff's perceived
ostracism by co-workers fails to support his
claim of hostile work environment. See
Cokus v. Bristol Myers Squibb Co., 362 N.J.
Super. 366, 382-83 (Law Div.2002) ("The fact
that [the plaintiff's] co-workers and
superiors chose to limit their contact with
[him] to business only and otherwise ignored
[him], stared/glared at [him] when they
walked by [him], and, even as plaintiff
believed—talked about [him] behind closed
doors," fails to create a hostile work
environment.), aff'd 362 N.J. Super. 245,
246-47 (App. Div.), certif. denied, 178 N.J.
32 (2003). The Supreme Court has explained,
the LAD does not create a "sort of civility
code for the workplace[.]" Battaglia v.
United Parcel Serv., Inc., 214 N.J. 518, 549
(2013). Rather, it advances "[f]reedom from
discrimination." Id. at 546. Employee
discourtesy and rudeness should not be
confused with employee harassment. Further,
an "unhappy" workplace does not equate to a
hostile work environment under the LAD.
[Dunkley, supra, 437 N.J. Super. at 382.]
In summary, defendant, as plaintiff's employer, acted
expeditiously and effectively to prevent further racial
discrimination. No prior instances of racial slurs or
harassment were known and when plaintiff's complaint surfaced,
3
Plaintiff filed a certification in opposition to summary
judgment which included claims not disclosed in his deposition.
We could not evaluate these statements. However, the names of
defendant's alleged management employees was left blank.
17 A-3252-12T1
it was immediately addressed. "More important, plaintiff's own
report [was] he did not experience any further discriminatory
harassment and suffered no change in his position, duties or
compensation . . . ." Id. at 381-82.
We decline plaintiff's invitation to allow a jury to
evaluate its view of whether defendant's policy could be more
effective or to assess defendant's decision not to fire the
offending employee. It is neither the role of the jury nor the work
of courts to intrude so deeply into an employer's operational
decisions. Plaintiff never saw Harrington again, which might
suggest he was transferred to a different site. Plaintiff's own
words demonstrate defendant's policy, as implemented, worked and he
completed his training without encountering further derogatory
or discriminatory treatment. The legislative objective of the
LAD is to assure a commitment to end discrimination in the
workplace. See Fuchilla v. Layman, 109 N.J. 319, 334 (1988).
The facts here show that was accomplished.
Taken as a whole, this record reflects defendant did not
breach its duty or ignore the serious legal responsibilities it
owes its employees to eradicate racial discrimination in its
workplace. We conclude plaintiff has not identified factual
support to show the elements of a negligence action against
defendant.
18 A-3252-12T1
Next, we examine the record as to whether the facts
presented suggest defendant is vicariously liable for a
supervisor's harassment. In Aguas, the Court identified four
questions a plaintiff must affirmatively demonstrate:
1. Did the employer delegate the authority
to the supervisor to control the situation
of which the plaintiff complains . . . ?
2. Did the supervisor exercise that
authority?
3. Did the exercise of authority result in
a violation of [the LAD]?
4. Did the authority delegated by the
employer to the supervisor aid the
supervisor in injuring the plaintiff?
[Aguas, supra, 220 N.J. at 514 (alterations
in original) (quoting Lehman, supra, 132
N.J. at 620).]
See also Restatement § 219(2)(d).4
In Aguas, the Court noted it never explicitly considered
the impact of an employer's anti-harassment policy on a
vicarious liability claim for supervisory sexual harassment,
Aguas, supra, 220 N.J. at 499, but New Jersey nonetheless has
4
"Under Restatement § 219(2)(d), an employee may assert that
the employer is vicariously liable for sexual harassment
committed by its employee because the sexual harasser purported
to act on the employer's behalf and 'there was reliance upon
[his or her] apparent authority,' or because the harasser 'was
aided in [his or her misconduct] by the existence of an agency
relation[ship] with his or her employer.'" Aguas, supra, 220
N.J. at 514 (alteration in original) (quoting Lehmann, supra,
132 N.J. at 619).
19 A-3252-12T1
"acknowledged the value of effective anti-harassment policies in
combatting sexual harassment in the workplace, and recognized
that employers will be motivated to implement and enforce such
policies if their policies provide a defense to a claim of
vicarious liability." Id. at 517.
The Court found support for this principle in federal law
construing Title VII, which recognizes an employer defending
such a sexual harassment claim may assert as an affirmative
defense that the employer had an effective anti-harassment
policy and the employee failed to take advantage of or comply
with that policy. Id. at 521 (citing Faragher, supra, 524 U.S.
at 807, 118 S. Ct. at 2292-93, 141 L. Ed. 2d at 689 and Ellerth,
supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. Ed. 2d at
655). Explaining the LAD and Title VII share the common
objective "'not to provide redress but to avoid harm,'" id. at
520-21 (quoting Faragher, supra, 524 U.S. at 805-06, 118 S. Ct.
at 2292, 141 L. Ed. 2d at 688), the Court explicitly adopted the
Ellerth/Faragher affirmative defense:
In a hostile work environment sexual
harassment case under the LAD in which the
plaintiff alleges employer vicarious
liability under Restatement § 219(2)(d), the
plaintiff has the initial burden of
presenting a prima facie hostile work
environment claim. If no tangible
employment action has been taken against the
plaintiff, the defendant[-]employer may
assert the two-pronged affirmative defense
20 A-3252-12T1
of Ellerth and Faragher.[5] To establish that
defense, the defendant employer has the
burden to prove, by a preponderance of the
evidence, both prongs of the affirmative
defense: first, that the employer exercised
reasonable care to prevent and to correct
promptly sexually harassing behavior; and
second, that the plaintiff employee
unreasonably failed to take advantage of
preventive or corrective opportunities
provided by the employer or to otherwise
avoid harm.
[Id. at 524.]
The Court also addressed the definition of a "supervisor,"
describing it as "a pivotal factor in the application of the
agency principles set forth in Restatement § 219(2)(d)." Id. at
525. Rejecting the United States Supreme Court's "restrictive
definition of 'supervisor,'"6 id. at 528, the Court adopted an
5
The affirmative defense is unavailable where "'harassment
culminates in a tangible employment action, such as discharge,
demotion[,] or undesirable reassignment,'" id. at 522 (quoting
Faragher, supra, 524 U.S. at 808, 118 S. Ct. at 2293, 141 L. Ed.
2d at 689), "'because when a supervisor makes a tangible
employment decision, there is assurance the injury could not
have been inflicted absent the agency relation . . . . Tangible
employment actions are the means by which the supervisor brings
the official power of the enterprise to bear on subordinates.'"
Ibid. (alterations in original) (brackets omitted) (quoting
Ellerth, supra, 524 U.S. at 761-62, 118 S. Ct. at 2269, 141 L.
Ed. 2d at 653-54).
6
See Vance v. Ball State Univ., ___ U.S. ___, ___, 133 S.
Ct. 2434, 2443, 186 L. Ed. 2d 565, 591 (2013) ("[A]n employer
may be vicariously liable for an employee's unlawful harassment
only when the employer has empowered that employee to take
tangible employment actions against the victim, i.e., to effect
a 'significant change in employment status, such as hiring,
(continued)
21 A-3252-12T1
expansive definition of the term "to include . . . employees
granted the authority to make tangible employment decisions
. . . [and] those placed in charge of the complainant's daily
work activities." Id. at 528.
Plaintiff focuses on his claim by asserting Harrington was
his supervisor. As we noted in our earlier opinion, the record
does not allow us to accept or reject that claim. Nevertheless,
we do not need to decide that fact to apply the legal analysis
adopted in Aguas.
Here, defendant took no tangible employment action against
plaintiff. It is not disputed that plaintiff resigned
voluntarily because he "felt uncomfortable," an assertion we
have rejected as satisfying the proofs necessary to sustain a
constructive discharge claim. Consequently, defendant may
assert the two-pronged Ellerth/Faragher affirmative defense, see
id. at 524, showing it acted in a reasonable and prompt manner
to prevent or correct the harassing behavior and plaintiff
unreasonably failed to take advantage of the preventative or
corrective measures implemented to avoid further harm. See id.
(continued)
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant
change in benefits.'" (quoting Ellerth, supra, 524 U.S. at 761,
118 S. Ct. at 2257, 141 L. Ed. 2d at 633)).
22 A-3252-12T1
at 521 (quoting Faragher, supra, 524 U.S. at 807, 118 S. Ct. at
2292-93, 141 L. Ed. 2d at 689).
As discussed above, plaintiff, despite training and the
opportunity to formally register his complaint with his manager
or HR, unreasonably failed to initiate corrective action. It
was defendant who undertook responsibility to determine the
reasons why plaintiff failed to return to work, then exercised
reasonable care to prevent and correct harassing conduct by the
prompt enforcement of its anti-discrimination policy. Once the
facts were discovered, no further instance of discrimination
occurred.
Affirmed.
23 A-3252-12T1