JAMIE DOERR v. MUTUAL OF OMAHA COMPANIES, MUTUAL OF OMAHA INSURANCE COMPANIES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2782-04T22782-04T2

JAMIE DOERR,

Plaintiff-Appellant,

v.

MUTUAL OF OMAHA COMPANIES,

MUTUAL OF OMAHA INSURANCE

COMPANIES Corporations of the

State of New Jersey,

Defendants-Respondents,

and

KEVIN FAHERTY,

Defendant.

 

Submitted September 20, 2005 - Decided

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-867-02.

Peter King, attorney for appellant.

McElroy, Deutsch, Mulvaney & Carpenter, attorneys for respondent Mutual of Omaha Insurance Company (Patrick G. Brady, of counsel and on the brief; Michael O. Boldt, on the brief).

PER CURIAM

Plaintiff Jamie Doerr appeals from the March 25, 2004 order of the Law Division granting summary judgment in favor of defendant Mutual of Omaha Company (Mutual of Omaha) and dismissing her employment discrimination complaint. We reverse and remand this matter for further proceedings.

The facts that are germane to the issues raised on appeal are as follows. At all times relevant to the matters included in the complaint, plaintiff was an employee of defendant Mutual of Omaha. She worked in the Greater New York Group Office in Morristown where defendant Kevin Faherty was her supervisor. According to her complaint, on March 14, 2001, while plaintiff and Faherty were on a business trip to Tarrytown, New York, Faherty sexually assaulted her. Plaintiff immediately filed a complaint with the local police authorities and she promptly contacted Mutual of Omaha about the incident through its code of conduct hotline. As part of that complaint, she informed Mutual of Omaha that she had been injured in the incident and could not return to work.

Mutual of Omaha conducted an investigation into the complaint, the specifics of which are not relevant to the issues advanced on appeal. Following that investigation, however, Faherty was permitted to resign from the company. He entered a plea of guilty to a third-degree assault charge in New York in October 2001.

By letter dated April 5, 2001, Mutual of Omaha advised plaintiff that Faherty had resigned and requested that she return to work on Monday April 9, 2001. The letter referred to a conversation between plaintiff and Mutual of Omaha's human resources staff during which plaintiff said that she did not feel harassed by any other individuals in the Greater New York Group Office. The letter also pointed out that the incident between plaintiff and Faherty had not occurred at the office. The letter advised plaintiff that Mutual of Omaha had concluded that it would be appropriate for her to return to work. The final version of the letter that was sent to plaintiff, unlike a draft of the letter that had been reviewed and revised by company counsel, did not explain, consistent with ordinary company policy, the consequences that would follow if plaintiff failed to report for work as requested.

Counsel for plaintiff responded to that letter, alerting Mutual of Omaha to the fact that plaintiff was under the care of a physician in connection with the incident and that it was the doctor's opinion that she should not return to work at that time. Plaintiff therefore did not report to work on April 9, 2001, as Mutual of Omaha's letter had requested. On April 11, 2001, Mutual of Omaha advised plaintiff in writing that her failure to report to work or to contact management for three consecutive days was considered to be a voluntary termination by an employee in accordance with the employee manual. The letter further advised her that Mutual of Omaha had accepted her resignation and it provided her with information concerning pay and benefits due her.

Plaintiff's employment discrimination complaint included allegations that she had been the victim of sexual harassment, that she had been subjected to a hostile work environment, that her termination was the result of sexual discrimination and that she had been terminated in retaliation for her complaint against Faherty. Following the completion of discovery, Mutual of Omaha moved for summary judgment, contending that its company-wide anti-discrimination policy and procedures provided it with a complete defense to plaintiff's claims of discrimination. Plaintiff opposed that motion, asserting that the policy and procedures were insufficient and that her termination violated her rights to be protected from discrimination in her employment.

When counsel for the parties appeared on February 6, 2004, for oral argument, the judge inquired about a number of counts in the complaint as to which plaintiff had not opposed the summary judgment motion. In addition, he inquired about depositions that had been commenced but not completed and he asked about how the completion of that discovery would impact upon the motion. The judge then adjourned the return date of the summary judgment motion until March 19, 2004, directing counsel for the parties to submit any further briefs and appendices in advance of that date. On March 5, 2004, prior to the return date, the motion judge entered an order dismissing the claims pertaining to the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 to -56, and the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. Although the judge did not express any reasons for the decision to dismiss these claims, plaintiff does not challenge their dismissal on appeal, as a result of which we need not address them further.

Our review of the record reveals that the parties did not file any further briefs or exhibits and that there was no further oral argument on the adjourned return date. On March 25, 2004, the motion judge signed an order granting Mutual of Omaha's motion for summary judgment as to all remaining claims in the complaint. He did not explain the reasons for his decision in either written or oral form.

On appeal, plaintiff argues that the motion judge erred. In particular, she asserts that she was the victim of sexual harassment and that Mutual of Omaha was vicariously liable for the acts of Faherty, her supervisor. In the alternative, she asserts that the motion judge erred in failing to appreciate that there were genuine issues of material fact respecting Mutual of Omaha's vicarious liability and that summary judgment was therefore inappropriate.

Our review of this record requires us to remand this matter to the motion judge. As we recently reiterated, a court is required to "find the facts and state its conclusions of law" when deciding dispositive motions like the one before us on appeal. Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003). In an analogous context, we have noted that "an articulation of reasons is essential to the fair resolution of a case." Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000); see Dorfman v. Dorfman, 315 N.J. Super. 511, 518 (App. Div. 1998); O'Brien v. O'Brien, 259 N.J. Super. 402, 406-07 (App. Div. 1992). So fundamental is this requirement that our Supreme Court has described the failure of a judge to set forth the required findings and conclusions as "a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)(quoting Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). As we have also recently noted, this observation applies in numerous contexts in which dispositive relief is granted. See Raspantini, supra, 364 N.J. Super. at 533 (citing CNA Ins. Co. v. Cave, 332 N.J. Super. 185, 187 (App. Div.), certif. denied, 165 N.J. 678 (2000); Schwarz v. Schwarz, supra, 328 N.J. Super. at 282; Dep't of Transp. v. Barton Inv. Assocs., 326 N.J. Super. 282, 287 (App. Div. 1999); Chambon v. Chambon, 238 N.J. Super. 225, 231-32 (App. Div. 1990)).

The motion judge's failure to express his findings of fact and conclusions of law supporting the entry of the order of March 25, 2004, makes our meaningful review of the arguments advanced on appeal impossible. We therefore express no view about the arguments raised on appeal and no view about the propriety of the relief he ordered.

 
Remanded for further proceedings consistent with this opinion, which shall be completed no later than November 11, 2005. We retain jurisdiction.

Plaintiff reached a settlement of her claims against Faherty individually and filed a stipulation of dismissal of those claims in January 2005.

(continued)

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A-2782-04T2

October 11, 2005