BARBARA SALVERO VS. CITY OF ELIZABETHÂ (L-1023-13, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1110-15T1
BARBARA SALVERO,
Plaintiff-Appellant,
v.
CITY OF ELIZABETH,
Defendant-Respondent,
and
LIEUTENANT SOULNEER, PATRICK
SHANNON, JOHN BASTARDO,
DANIEL GEDDES, JOSEPH MULARZ,
and JAMES COSGROVE,
Defendants.
___________________________________
Argued October 25, 2017 – Decided December 1, 2017
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-1023-
13.
Charles J. Sciarra argued the cause for
appellant (Sciarra & Catrambone, LLC,
attorneys; Mr. Sciarra and Deborah Masker
Edwards, on the brief).
Christina M. DiPalo argued the cause for
respondent (LaCorte Bundy Varady & Kinsella,
attorneys; Ms. DiPalo and Robert F. Varady,
on the brief).
PER CURIAM
Plaintiff Barbara Salvero appeals from an October 23, 2015
order granting summary judgment to defendant City of Elizabeth. 1
After careful consideration of the record and applicable legal
principles of law, we reverse and remand for trial.
I.
Because we review this matter in the context of defendants'
motion for summary judgment, our recitation of the facts is derived
from the evidence submitted by the parties in support of, and in
opposition to, the summary judgment motion, viewed in the light
most favorable to plaintiff, and giving plaintiff the benefit of
all favorable inferences. See Angland v. Mountain Creek Resort,
Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins.
Co., 142 N.J. 520, 523, 536 (1995)).
Plaintiff has been employed as a police officer by the City
of Elizabeth since the year 2000. In 2003, she filed a lawsuit
against the City and other individual defendants under the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42,
1
Plaintiff did oppose summary judgment being granted to the
individual defendants.
2 A-1110-15T1
claiming she was subjected to a hostile work environment based on
racial and sexual harassment. The case went to trial. The jury
reached a verdict of no cause of action against plaintiff on
November 21, 2008.
During the pendency of the 2003 case, plaintiff was assigned
to the Elizabeth Municipal Court, located in a separate building
from police department headquarters. Plaintiff continued with this
assignment for approximately six years after the conclusion of her
lawsuit. Plaintiff testified that when she was assigned to the
court, she was told by officers in the Port Authority Police that
members of her department had told them to stay away from her as
she could not be trusted because she was a "rat."
Plaintiff further testified to several instances of
harassment that occurred after the conclusion of her 2003 lawsuit.
In 2009, she was followed in the police parking area by an unmarked
police car. The driver of the vehicle revved its engine and
"lunged" the vehicle at her. Plaintiff did not report this
incident to a superior, Internal Affairs, the Union County
Prosecutor's Office, or the Attorney General.
On August 20, 2009, while plaintiff's car was parked in the
police parking area, a nail punctured her tire causing a flat.
When she returned to the area where she had parked her car, she
3 A-1110-15T1
found three other nails in the space where she had parked, but no
nails elsewhere. Plaintiff did not report the incident.
On June 29, 2010, while plaintiff's car was parked in the
police parking area, the driver's side door was dented and there
was a nail in her tire. On the same day, when she started the
engine, there was a strong urine odor emanating from the air
conditioning. Plaintiff did not report the incident.
Plaintiff was followed and intimidated by another unmarked
police vehicle in 2011. Once again, plaintiff did not report the
incident.
On January 21, 2011, plaintiff underwent surgery for injuries
she sustained in an off-duty motor vehicle accident. In November
2011, plaintiff asked her PBA representative, President Bob
Morris, if upon her return from surgery she could be assigned away
from headquarters because of the hostile work environment that
resulted from her 2003 lawsuit. Morris acknowledged there was
known hostility toward her and gained approval for her to be
assigned to light duty at the Municipal Court. On March 7, 2012,
plaintiff was cleared for light duty and was allowed to return to
work.
One of the restrictions imposed upon plaintiff's return was
that she was not to make arrests. Plaintiff thought that
assignment to Municipal Court would be best for her because one
4 A-1110-15T1
officer was deployed to the courtroom while another officer was
stationed immediately outside, and the officers themselves decided
where they would be stationed. On March 8, 2012, while she was
working at the court, plaintiff was ordered by the desk lieutenant
to the front desk of headquarters. Plaintiff contacted Morris who
later advised that plaintiff could remain at the court on light
duty.
On March 22, 2012, plaintiff was again ordered to report to
the headquarters front desk. Plaintiff reached out to Morris and
the new PBA president, Richard Steinke, regarding the assignment.
Morris indicated he was being retaliated against for attempting
to assist her. Plaintiff testified she made an effort to contact
the person in charge of assignments through her PBA representative
to no avail.
In March 2012, while plaintiff was getting bail documents for
a prisoner prepared at the front desk, plaintiff requested that
another officer prepare the prisoner to be escorted out of the
police department since she was on light duty and was not to
interact with prisoners. The officer refused to assist her even
though he knew about her light duty restriction.
On March 30, 2012, Lieutenant Saulnier yelled at plaintiff
for allowing people up to his office even though she was not
actually responsible. Saulnier also yelled that "he was tired of
5 A-1110-15T1
you" in front of other officers. Plaintiff immediately reported
the incident to her superior only to be met with ridicule and a
statement that he was sick of the childish behavior, that this was
high school nonsense, and further asked, "what's next, I going to
have to call an ambulance for her?"
Plaintiff then contacted Anita Pritchard, the City Hall
Liaison for sexual harassment and whistle-blowing, regarding the
incident with Saulnier. Plaintiff believed it was appropriate,
under the sexual harassment policy, to reach out to a City liaison
if she felt uncomfortable reporting any incident to the police
department. Pritchard had told her that it was unusual for someone
from the police department to be calling the City's business
administration, but agreed to meet with her anyway.
When plaintiff reported for work on April 9, 2012, prior to
her meeting with Pritchard, she found an old, dirty pacifier on
her work desk. Throughout the following days, plaintiff would
hear baby cries and laughing when she would walk by her fellow
officers.
On April 10, 2012, plaintiff met with Pritchard to discuss
the incidents. Plaintiff explained to Pritchard how the 2003
lawsuit related to the threats, having no backup, and the situation
with her light duty. At the end of the interview, Pritchard told
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plaintiff her complaint would be given to the Business
Administrator and appropriate measures would be taken.
On April 19, 2012, plaintiff met with Sergeant Geddes and
Internal Affairs Officer John Bastardo for an Internal Affairs
(IA) interview. The interviewers refused to allow her to discuss
previous incidents of harassment as they related to her 2003
lawsuit.
On August 20, 2012, plaintiff was told by a fellow officer
that high ranking officers were saying she was a "dumb bitch" and
it was the goal of the department to fire her.
Plaintiff requested the results from the investigation of her
complaints on two separate occasions. Eight months after the IA
interview, plaintiff was faxed a one-line finding that the
complaints were unfounded. Plaintiff was aware that she could
have gone to the Union County Prosecutor's Office if she felt that
Internal Affairs did not do a thorough investigation. She did not
do so.
On April 29, 2013, one month after filing her complaint in
this matter, plaintiff was notified by Sergeant McDonald that she
was being put back on patrol. Upon being notified of this, she
spoke to McDonald and advised him the Department was aware she was
being harassed and that she was fearful to work by herself and not
receive backup. Plaintiff also voiced this same complaint to
7 A-1110-15T1
superiors. Plaintiff was officially assigned to patrol on June
3, 2013.
Plaintiff alleges multiple instances of harassment during her
time on patrol. In either June or July 2013, an officer called
her a "bitch" and openly said to other officers that she was
"nothing but trouble[]" and "you don't want to know who that bitch
is."
On July 7, 2013, plaintiff responded to a scene where two
groups of individuals were assaulting each other. She did not
receive backup when requested. When she called for backup, there
was a delay by an officer from her department and he failed to
assist plaintiff after arriving. Instead, the officer simply sat
on the hood of his patrol car and watched.
On July 21, 2013, while she was working by herself, plaintiff
was called to a cellblock for a prisoner that needed to go to the
hospital. Plaintiff called another officer for assistance, but
he did not respond. Plaintiff then had to place a call on the
radio for the officer to respond, but he did not respond for over
twenty minutes. During the transport, the officer did not interact
with her at all.
On November 13, 2013, the Municipal Court and Municipal
Prosecutor requested plaintiff call for an officer in her
department to respond to the court for trial. Plaintiff called
8 A-1110-15T1
out for him on police radio at least three times with no reply.
After failing to reach the officer, plaintiff asked radio dispatch
to call the officer. When dispatch did so, he immediately
responded.
On December 21, 2013, when plaintiff was at a homicide scene
with her partner, no one would speak to her. At the homicide
scene, plaintiff was in charge of identifying the officers working
at the scene and reporting their roles. None of the officers
would give her their names or roles at the scene. The only way
plaintiff was able to obtain the information was through her
partner.
On December 29, 2013, a person became combative during an
incident at a Dunkin Donuts coffee shop. Plaintiff called out
over the police radio for assistance several times, but no one
from her department responded. As a result, the County police had
to respond to the call. It was only after County police arrived
on scene that an officer from her department arrived.
Plaintiff alleges one last example of officers ignoring her
and not providing necessary information for her to do her job, but
does not indicate when in time this incident occurred. Plaintiff
and her partner assisted another officer regarding a person
arrested on an outstanding warrant. Again, the only way plaintiff
9 A-1110-15T1
could obtain information about the person who was arrested was to
get it through her partner.
During the time plaintiff was assigned to patrol from June
2013, until January 29, 2014, she made no complaints to her
supervisors about not being backed up. On January 30, 2014,
plaintiff submitted a private report she had written to Pritchard
and Captain Colon documenting the harassment and her complaints
about the department. Plaintiff further discussed with Colon that
she felt she was not being treated the same as other officers and
personally disclosed to him all of the alleged incidents of
harassment.
On May 22, 2014, Internal Affairs interviewed plaintiff
regarding the complaints in her private report. Plaintiff did not
receive a copy or transcript of the interview.
The City of Elizabeth Police Department first adopted a
Discrimination and Harassment in the Workplace Policy on June 16,
2015, long after the occurrence of the events relied on by
plaintiff and more than two years after this case was commenced.
Plaintiff submitted a private report to a superior officer
regarding a Discrimination and Harassment in the Workplace Policy
test that was to be completed on the computer by each officer in
the Department. The second question asked: "Are you currently
aware of any situations within the Elizabeth Police Department
10 A-1110-15T1
which are in direct violation of the Discrimination and Harassment
in the Workplace policy of 2015?" Plaintiff answered "yes." The
test was not capable of being passed unless the answer to the
question was "no." Consequently, plaintiff failed the test.
Plaintiff reported this to her superior and, when she advised she
would not change her answer, he changed the test result.
On March 18, 2013, plaintiff filed a six-count complaint
against defendants the City, Patrick Shannon, John Bastardo,
Daniel Geddes, Joseph Mularz, and James Cosgrove. Plaintiff
alleged the City violated the LAD (count one); the City violated
the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-
1 to -14 (count two); aiding and abetting by Cosgrove (count
three); aiding and abetting by Shannon (count four); employer
liability (count five); and liability against the City for punitive
damages (count six). The City filed an answer on May 28, 2013.
On January 20, 2015, plaintiff filed an amended complaint
containing the same counts. The City filed an answer on February
4, 2015.
In May 2014, plaintiff requested files from Internal Affairs
relating to her complaints. These files were never produced. As
a result, plaintiff served no interrogatories or notices to produce
on defendant and plaintiff did not depose any of the defendants.
11 A-1110-15T1
After three extensions, discovery closed on July 15, 2015.
The last discovery order stated: "There will be no further
extension of discovery." In lieu of propounding any written
discovery requests and depositions plaintiff's former counsel sent
informal letter requests for the relevant IA files.
Plaintiff did not move to compel or further extend discovery
before the discovery end date. Plaintiff also noticed the
deposition of Sergeant Maloney, the primary investigator of
plaintiff's harassment complaints, and Officer Michael Tropeano,
who gave a taped recorded interview in connection with the IA
investigation, after discovery had already expired. Plaintiff's
former counsel claimed that he did not notice the depositions
earlier because he had not yet received the IA files.
On August 6, 2015, defendant finally provided plaintiff with
the IA documents relating to the case, but not the recordings of
any taped interviews. On October 9, 2015, the trial court entered
an Order barring defendant from "introducing evidence relating to
[IA] investigations into [p]laintiff's complaints unless it had
produced that evidence in response to a discovery demand or court
order, or it was not demanded in discovery."
On September 23, 2015, defendants moved for summary judgment
dismissing plaintiff's amended complaint in its entirety.
12 A-1110-15T1
Plaintiff opposed the motion as to the City, but not the individual
defendants.
On October 23, 2015, the trial court heard oral argument on
the motion. Plaintiff withdrew her CEPA claim against the City
(count two). In an oral decision, the court granted summary
judgment to defendants, dismissing plaintiff's amended complaint
with prejudice.
The motion judge found that "plaintiff ha[d] failed to present
evidence to show that her protected activity, the lawsuit from
2003, caused her to suffer a hostile work environment[]" and that
"plaintiff hasn't raised a genuine issue of material fact regarding
an adverse employment action . . . we're talking about several
isolated incidents over a period of time which the City had no
opportunity to address in any kind of timely fashion to even
establish whether or not they happened." The Judge also held that
"I don't see where I can maintain this suit . . . against the
City. They do have a policy. It's there and the plaintiff is aware
of it. Plaintiff knows what [t]o [d]o, has a lawyer to assist her
at all times." This appeal followed.
Plaintiff raises the following issues on appeal: (1) summary
judgment should have been denied because the material facts create
inferences that would allow a reasonable jury to conclude that the
City violated the LAD; (2) plaintiff engaged in protected
13 A-1110-15T1
activities when she filed her 2003 lawsuit and this action; (3)
plaintiff suffered a retaliatory adverse employment action and was
subjected to a hostile work environment that was so severe and
pervasive that it altered the conditions of her employment; and
(4) the trial court erred in finding that the City had satisfied
the requirements for an affirmative defense under Aguas v. State,
220 N.J. 494 (2015).
II.
"We review the grant of summary judgment 'in accordance with
the same standard as the motion judge.'" Globe Motor Co. v.
Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217
N.J. 22, 38 (2014)). Summary judgment is appropriate where "the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of
law." R. 4:46-2(c); accord Brill, supra, 142 N.J. at 528-29.
“An issue of fact is genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties on
the motion, together with all legitimate inferences therefrom
favoring the non-moving party, would require submission of the
issue to the trier of fact.” R. 4:46-2(c). "The inquiry is
'whether the evidence presents a sufficient disagreement to
14 A-1110-15T1
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.'" Liberty Surplus Ins.
v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting
Brill, supra, 142 N.J. at 536). The motion judge's function is
not to "weigh the evidence and determine the truth of the matter
but to determine if there is a genuine issue for trial." Brill,
supra, 142 N.J. at 540 (citation omitted).
"The motion court must analyze the record in light of the
substantive standard and burden of proof that a factfinder would
apply in the event that the case were tried." Igdalev, supra, 225
N.J. at 480 (citations omitted). "Thus, 'neither the motion court
nor an appellate court can ignore the elements of the cause of
action or the evidential standard governing the cause of action."
Ibid. (quoting Bhagat, supra, 217 N.J. at 38).
III.
In order to establish a prima facie claim for retaliation
under the LAD, plaintiff must demonstrate: (1) that she engaged
in protected activity; (2) the activity was known to the employer;
(3) plaintiff suffered an adverse employment decision; and (4)
there existed a causal link between the protected activity and the
adverse employment action. Battaglia v. United Parcel Serv. Inv.,
214 N.J. 518, 547 (2013).
15 A-1110-15T1
For purposes of the summary judgment motion, the City concedes
that plaintiff has satisfied the first two prongs of the
retaliation test. As a result of the City's concessions, our
analysis will focus on prongs three and four.
N.J.S.A. 34:19-2(e) defines "retaliatory action" as "the
discharge, suspension or demotion of an employee, or other adverse
employment action taken against an employee in the terms and
conditions of employment." "As such, 'employer actions that fall
short of [discharge, suspension or demotion], may nonetheless be
the equivalent of an adverse action.'" Nardello v. Twp. of
Voorhees, 377 N.J Super. 428, 433-34 (App. Div. 2005) (alteration
in original) (quoting Cokus v. Bristol Myers Squibb Co., 362 N.J.
Super. 366, 378 (Law Div. 2002), aff'd, 362 N.J. Super. 245 (App.
Div.), certif. denied, 178 N.J. 32 (2003)). That being said, "not
every employment action that makes an employee unhappy constitutes
'an actionable adverse action.'" Id. at 434 (quoting Cokus, supra,
362 N.J. Super. at 378).
Here, plaintiff does not claim that there was a loss of pay,
rank, or status. Nor does she claim that she was threatened with
termination, demoted, urged to resign, or asked to assume lesser
job responsibilities. As a result, plaintiff must demonstrate
that she was subjected to some other adverse employment action.
16 A-1110-15T1
Plaintiff contends that she was subjected to a hostile work
environment so intolerable that it altered the conditions of
employment to the point that the City's actions constituted an
adverse employment action. See Cokus, supra, 362 N.J. Super. at
386 (holding that while there was no evidence in the record that
the defendant engaged in retaliatory conduct towards plaintiff, a
hostile work environment could constitute an adverse employment
action).
To establish a cause of action under the LAD for hostile work
environment, a plaintiff must satisfy each part of the four-part
test adopted in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-
04 (1993).
Specifically, they must show that the
complained-of conduct (1) would not have
occurred but for the employee's protected
status, and was (2) severe or pervasive enough
to make a (3) reasonable person believe that
(4) the conditions of employment have been
altered and that the working environment is
hostile or abusive.
[Shepherd v. Hunterdon Development Ctr., 174
N.J. 1, 24 (2002) (citing Lehmann, supra, 132
N.J. at 603-04).]
In order to determine whether the conduct was "severe or
pervasive," the court must consider "whether a reasonable person
would believe that the conditions of employment have been altered
and that the working environment is hostile. Thus the second,
17 A-1110-15T1
third, and fourth prongs are, to some degree, interdependent."
Ibid. (citations omitted).
In assessing a hostile work environment claim, the court must
examine the totality of the plaintiff's employment environment,
and should consider the frequency of the discriminatory conduct,
the severity of the conduct, whether it is physically threatening
or humiliating, or merely an offensive statement, and whether it
unreasonably interferes with the employee's work performance. El-
Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super 145, 178 (App.
Div. 2005) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23,
114 S. Ct. 367, 371, 126 L. Ed. 2d 295, 302-03 (1993)). "Rather
than considering each incident in isolation, courts must consider
the cumulative effect of the various incidents, bearing in mind
'that each successive episode has its predecessors, that the impact
of the separate incidents may accumulate, and that the work
environment created may exceed the sum of the individual
episodes.'" Lehmann, supra, at 607 (quoting Burns v. McGregor
Elec. Indus., 955 F.2d 559, 564 (8th Cir.1992). Consequently, "a
discrimination analysis must concentrate not on individual
incidents but on the overall scenario." Ibid. (quoting Andrews
v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990))
"Under the first prong of Lehmann, a plaintiff must show by
a preponderance of the evidence that the impermissible conduct
18 A-1110-15T1
would not have occurred but for plaintiff's protected status."
Shepherd, supra, 174 N.J. at 24. Here, plaintiff contends that
she is a protected person under the LAD because she filed a prior
lawsuit alleging she was subjected to a hostile work environment
based on racial and sexual harassment. In that respect, the LAD
provides that it is unlawful "to take reprisals against any person
because that person has opposed any practices or acts forbidden
under [the LAD] or because that person has filed a complaint [or]
testified . . . in any proceeding under [the LAD.]" N.J.S.A.
10:5-12(d).
A reasonable jury could infer that the complained-of conduct
was in retaliation for her protected activities. Because plaintiff
opposed conduct forbidden under the LAD by filing her prior LAD
action and has linked the complained-of conduct to those protective
activities, plaintiff has satisfied Lehmann's first prong for
purposes of withstanding defendant's summary judgment motion. See
Shepherd, supra, 174 N.J. at 24-25; Woods-Pirozzi v. Nabisco Foods,
290 N.J. Super 252, 266 (App. Div. 1996).
Here, because the harassment plaintiff alleges is not
discriminatory or retaliatory on its face, plaintiff must make a
prima facie showing that the harassment would not have occurred
but for her protected conduct. There is no specific test for
determining whether or not plaintiff has met this burden. "All
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that is required is a showing that it is more likely than not that
the harassment occurred because of the plaintiff's [protected
conduct]." Lehmann, supra, 132 N.J. at 605. "Common sense
dictates that there is no LAD violation if the same conduct would
have occurred regardless of the plaintiff's [protected conduct]."
Id. at 604. Plaintiff testified that the harassment was the result
of her filing the 2003 litigation and her subsequent complaints
to superiors.
Viewed cumulatively in a light most favorable to plaintiff,
the record in this matter illustrates that plaintiff was subjected
to an ongoing, repetitive, and retaliatory lack of support, lack
of cooperation, and failure to timely respond to her calls for
assistance, which are unique to plaintiff. On more than one
occasion, plaintiff called for assistance to no avail, was required
to have others call in when she needed support, and was required
to speak through her partner to do her job correctly. The fact
that immediate support was given after someone other than plaintiff
reported such incidents supports plaintiff's claim that the same
conduct would not have occurred but for her protected conduct.
Given plaintiff's history at the department, which yielded her
protected status, a reasonable fact-finder could conclude it was
more likely than not the two conditions are connected.
20 A-1110-15T1
The next requirement is that the alleged harassing conduct
be "severe or pervasive." Lehmann, supra, 132 N.J. at 606. The
Court "emphasize[d] that it is the harassing conduct that must be
severe or pervasive, not its effect on the plaintiff or on the
work environment. Ibid. In evaluating whether the harassment
alleged was sufficiently severe or pervasive to alter the
conditions of employment that results in a hostile work
environment, the finder of fact shall consider the question from
the perspective of a reasonable person. Id. at 611-12.
"Within the totality of circumstances, there is neither a
threshold 'magic number' of harassing incidents that gives rise,
without more, to liability as a matter of law nor a number of
incidents below which a plaintiff fails as a matter of law to
state a claim." Taylor v. Metzger, 152 N.J. 490, 499 (9998)
(citations omitted). "[T]he required showing of severity or
seriousness of the harassing conduct varies inversely with the
pervasiveness or frequency of the conduct." Lehmann, supra, 132
N.J. at 607 (alteration in original) (quoting Ellison v. Brady,
924 F.2d 872, 878 (9th Cir. 1991)). However, there is no
requirement that the harassing conduct occur closely in time.
Plaintiff alleges she was subjected to a hostile and uniquely
dangerous workplace environment when assistance and backup were
either not provided or significantly delayed. Not receiving needed
21 A-1110-15T1
backup and support would make even the most reasonable person in
plaintiff's situation feel like their workplace condition had
shifted to one of hostility and danger. In addition, the alleged
offensive conduct occurred repeatedly over a significant period
of time. Consequently, a reasonable fact-finder could conclude
that the effect of not receiving adequate support, cooperation,
or assistance during the course of her work was sufficiently severe
or pervasive to alter the conditions of employment and create a
hostile work environment. Thus, plaintiff has alleged sufficient
facts meeting all four prongs of the Lehmann test to survive
summary judgment.
Under the fourth prong of the test for retaliation under the
LAD, plaintiff must demonstrate a causal link between the protected
activity and the adverse employment action, which in this case is
a hostile work environment. Battaglia, supra, 214 N.J. at 547.
"[T]he mere fact that [an] adverse employment action occurs after
[the protected activity] will ordinarily be insufficient to
satisfy the plaintiff's burden of demonstrating a causal link
between the two." Young v. Hobart West Group, 385 N.J. Super.
448, 467 (App. Div. 2005) (quoting Krouse v. Am. Sterilizer Co.,
126 F.3d 494, 503 (3d Cir. 1997)). "Where the timing alone is not
'unusually suggestive,' the plaintiff must set forth other
evidence to establish a causal link." Ibid. For example, "where
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there is a lack of temporal proximity, circumstantial evidence of
a pattern of antagonism following the protected conduct can also
give rise to the inference" of causation. Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (citations
omitted). See also Estate of Roach v. TRW, Inc., 164 N.J. 598,
612 (2000) ("examining whether a retaliatory motive existed,
jurors may infer a causal connection based on the surrounding
circumstances."). Here, the alleged harassment started soon after
the jury issued its verdict in the 2003 lawsuit, and continued to
occur on an ongoing basis. Not only has plaintiff shown a pattern
of antagonism following her protected conduct, a reasonable jury
could infer a causal connection based on the nature of the
offensive conduct.
Finally, we address whether the City is protected from
vicarious liability for the conduct of its employees and
supervisors under the facts of this case. When no tangible
employment action is taken, a defending employer may assert the
two-pronged affirmative defense to liability or damages adopted
in Aguas. Aguas, supra, 220 N.J. at 524. To establish that
defense, the defendant employer has the burden to prove, by a
preponderance of the evidence, that (a) "the employer exercised
reasonable care to prevent and to correct promptly [the] harassing
behavior;" and (b) "the plaintiff employee unreasonably failed to
23 A-1110-15T1
take advantage of preventive or corrective opportunities provided
by the employer or to otherwise avoid harm." Id. at 524 (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct.
2275, 2293, 141 L. Ed. 2d 662, 689 (1998); Burlington Industries
v. Ellerth, 524 U.S. 742, 746, 118 S. Ct. 2257, 2262, 141 L. Ed.
2d 633, 644 (1998)). The Court emphasized, however, that "the
defense provides no protection to an employer whose sexual
harassment policy fails to provide 'meaningful and effective
harassment policies and procedures for employees to use in response
to harassment.'" Id. at 522 (quoting Gaines v. Bellino, 173 N.J.
301, 317 (2002)). "The employee may rebut the elements of the
affirmative defense." Id. at 524.
In Gaines, the Court found the existence of the following
factors in an anti-harassment policy relevant in determining
whether the policy was effective: (1) a formal prohibition of
harassment; (2) formal and informal complaint structures; (3)
anti-harassment training; (4) sensing and monitoring mechanisms
for assessing the policies and complaint procedures; and (5)
unequivocal commitment to intolerance of harassment demonstrated
by consistent practice. Gaines, supra, 173 N.J. at 313 (citations
omitted).
Plaintiff contends that because the City did not have a
dedicated anti-harassment policy and procedures in place during
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the period in question, it has not satisfied the requirements for
an affirmative defense under Aguas. We agree.
Here, the policy and procedures relied upon by the City did
not exist when the complained-of conduct occurred. Instead, the
City implemented the harassment policy and monitoring mechanisms
long after plaintiff filed this lawsuit. Plaintiff contends that
even then, the City only did so to give the appearance of an
effective policy rather than instituting meaningful procedures to
eliminate harassment in the workplace.
The City has not shown that the policy in place during the
period in question was meaningful and effective. Furthermore, the
City has not provided any evidence that there was anti-harassment
training or supervisors in place during the period in question.
Nor has the City established that it had effective monitoring
mechanisms to check the policies and complaint structures. See
Gaines, supra, 173 N.J. at 313.
We further note that plaintiff appears to have utilized the
limited opportunities presented to her. During the period of
alleged harassment, plaintiff testifies that "according to the
sexual harassment policy, if [she] felt uncomfortable reporting
any incidents in the police department, that [her] option was to
reach out to the liaison . . . at city hall." Consequently,
plaintiff abided by the policy when she reported potentially
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harassing conduct to her superiors. On this record we cannot say
that plaintiff "unreasonably failed to avail herself of the
employer's preventative or remedial apparatus[.]" Aguas, supra,
220 N.J. at 521 (citation omitted).
We hold that the trial court erred by concluding that
defendant had established an affirmative defense to vicarious
liability or damages for the harassing conduct of its employees
as established in Ellerth and Faragher and adopted by the Court
in Aguas. The City has not met either element of that affirmative
defense. Nor has the City demonstrated that it provided meaningful
and effective harassment policies and procedures for employees to
use in response to harassment during the time period in question.
Viewed cumulatively, the acts alleged by plaintiff are
sufficient to present a hostile work environment claim to a jury.
We, therefore, vacate the order granting defendant summary
judgment and remand this matter for trial.
Reversed and remanded. We do not retain jurisdiction.
26 A-1110-15T1