CAROLYN OPILLA v. KAREN PARKER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-L-3749-031255-05T2

CAROLYN OPILLA,

Plaintiff-Appellant,

v.

KAREN PARKER, LUCENT

TECHNOLOGIES,

Defendants-Respondents,

and

ROBERT AUSTIN

and CORPORATE HEALTH

FITNESS CENTER,

Defendants.

 
___________________________

Submitted September 18, 2006 - Decided September 29, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Union County,

L-3749-03.

Fernando Iamurri, attorney for appellant.

Epstein, Becker & Green, attorneys for respondents (Maxine H. Neuhauser,

of counsel and on the brief; Peter F. Berk, on the brief).

PER CURIAM

Plaintiff, Carolyn Opilla, appeals from the dismissal on summary judgment of her complaint for sexual harassment and hostile work environment, related common law tort claims, and equal pay discrimination. We affirm.

I

Plaintiff's entire sexual harassment claim, as well as her related claims for hostile work environment, emotional distress and invasion of privacy, stem from one incident. According to plaintiff's proofs, on September 3, 2003, she was using the locker room of an on-premises health center provided by her employer, Lucent Technologies, but operated by a separate corporate entity, Corporate Health Fitness Center. According to plaintiff, one of her co-workers who was a transgendered female entered the women's locker room and stared at plaintiff, who was then dressed only in her underwear.

When asked how long the incident lasted, plaintiff testified that "[i]t could have been a minute. It felt like a long time." The transgendered co-worker left after another employee entered the locker room and told her to go change on the "other side."

Plaintiff immediately complained to the manager of the Health Center, who told her that he "didn't know what to do about the situation. He didn't know how to direct which locker room [the co-worker] should go into." But he promised plaintiff that he would check with Human Resources and "ask them what he should do."

After plaintiff complained about this episode to the Health Center manager, there were no further incidents. Plaintiff did not report the incident to her supervisor at Lucent or to Lucent's Human Resources department. She testified that she did tell a Lucent manager, Matt Olenowski, who was not her supervisor, that she "was embarrassed and upset and felt sick over the whole situation." He suggested that she go home early, which she did, although she did not tell her female supervisor why she was leaving early.

Plaintiff did not follow up with the Health Center manager to find out what Human Resources had advised him to do in the future. Plaintiff continued to use the Health Center, and never saw the co-worker there again.

Plaintiff's equal pay claim is based on her contentions that in 2001 she became a Lab Planner, and in that capacity she took over the job functions of a male employee, Dennis Matera, and a female employee, Pat Valdez, but was not given a pay raise or a promotion to a management position. She contended that since she was performing job functions previously performed by Matera, who was a manager, she should have been given a job title and pay equivalent to his. However, at her deposition, plaintiff admitted that she did not know Matera's educational background, job title, salary, salary grade, or work history at Lucent. She did not "recall" whether she assumed all of Matera's job duties or only some of them. She also did not know Valdez's salary. She further admitted that when she was being considered for the Lab Planner position, she told her supervisor that "I didn't know how to do the job and I didn't know the technical side of it."

In support of her equal pay claim, plaintiff submitted a certification from Olenowski. In the certification, Olenowski claimed to have "interfaced with" plaintiff in his capacity as a manager, although he did not claim that he supervised her. He claimed to know that she took over Matera's job and that she did not receive equal pay although she was performing the same duties as Matera. At her deposition, plaintiff admitted that she did not "recall" ever working for Olenowski, that he never performed a review of her work performance, that he never worked with Matera and that he never supervised anyone holding Matera's job title. She testified that Olenowski was laid off from Lucent shortly before she was.

Plaintiff's complaint included a claim of retaliatory discharge, but at her deposition she indicated that she and other employees were "laid off" from Lucent and that she was not suing Lucent "for anything" related to her discharge. Plaintiff has not pursued the claim on appeal.

Relying on Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993), the motion judge concluded that the one incident in the Health Center was not "severe or . . . pervasive enough to make a reasonable female believe that the conditions of employment were altered and the working environment was hostile or abusive." Hence, she dismissed the discrimination complaint against Lucent. Citing Tyson v. Cigna Corp., 918 F. Supp. 836 (D.N.J. 1996), aff'd, 149 F.3d 1165 (3d Cir. 1998), the judge also concluded that since the transgendered employee was not a supervisor, plaintiff could not maintain a hostile work environment claim against her under the Law Against Discrimination (LAD), N.J.S.A. 10:5-12. The judge also concluded that plaintiff's common law tort claims against her employer Lucent, and against her co-worker, were barred by the Worker's Compensation Act.

With respect to the equal pay claim, the judge granted summary judgment based on plaintiff's failure to establish what Matera's salary was, compared to plaintiff's salary, and her failure to establish what his job duties were so as to prove that she was performing the same duties at a lower rate of pay.

II

On this appeal, plaintiff raises the following issues:

POINT I: SINCE THE TRIAL COURT MISAPPLIED THE STANDARD OF REVIEW ON THE MOTION FOR SUMMARY JUDGMENT THE ORDER GRANTING SUMMARY JUDGMENT SHOULD BE REVERSED.

POINT II: SINCE THE COURT FOUND ERRONEOUSLY THAT THE PLAINTIFF'S COMMON LAW CAUSES OF ACTION AGAINST LUCENT SHOULD BE DISMISSED BASED UPON THE WORKERS' COMPENSATION REMEDY THE ORDER SHOULD BE REVERSED.

POINT III: SINCE A GENUINE ISSUE OF MATERIAL FACT EXISTS CONCERNING WHETHER PLAINTIFF RECEIVED DISPARATE PAY AND WAS OTHERWISE DISCRIMINATED AGAINST BECAUSE OF HER GENDER THE ORDER GRANTING SUMMARY JUDGMENT MUST BE DENIED.

Having reviewed the entire record, we conclude that plaintiff's appellate contentions are completely without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

Our review of a trial court's grant of summary judgment is de novo, employing the Brill standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App Div.), certif. denied, 154 N.J. 608 (1998); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Employing this standard, we agree with the motion judge that the one brief and isolated incident on which plaintiff rests her LAD complaint was not enough to create a hostile work environment. Plaintiff's proofs fall far short of establishing conduct "that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment." Lehmann, supra, 132 N.J. at 603. In light of plaintiff's patently insubstantial claim, we need not address the issues of whether the incident would not have occurred "but for" plaintiff's gender, ibid. (emphasis omitted), or whether the transgendered employee had a right to use the women's changing room prior to having sex reassignment surgery.

We also agree with the motion judge that the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8, bars plaintiff's common law tort claims. The facts as plaintiff presented them do not fall within the "intentional wrong" exception to the Act. Ibid; see Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 623-24 (2002).

Finally, we conclude that plaintiff's equal pay claim was properly dismissed. She failed to present the most basic evidence needed to compare her salary, qualifications and job responsibilities to those of the male employee to whom she compared herself. See Bitsko v. Main Pharmacy, Inc., 289 N.J. Super. 267, 272 (App. Div. 1996).

 
Affirmed.

Plaintiff is not appealing from the dismissal of her claims against Robert Austin and Corporate Health Fitness Center.

At the time the incident occurred, this employee had not yet undergone sex reassignment surgery, although she had been taking hormone therapy, identified herself as a woman, and dressed as a woman. She had sex reassignment surgery in October 2003. In Enriquez v. W. Jersey Health Sys., 342 N.J. Super. 501 (App. Div.), certif. denied, 170 N.J. 211 (2001), we discussed at length the condition known as "gender dysphoria" and concluded that discrimination against transgendered persons is a form of prohibited sex discrimination and, depending on the proofs, may also constitute handicap discrimination. Id. at 526-27. Plaintiff's proofs in this case do not require us to address any right of the transgendered employee to use the women's locker room.

We infer from the record that plaintiff did not depose Matera or obtain any discovery from Lucent concerning his salary or job duties.

We have been able to glean the judge's findings from the record and we agree with her conclusions. But we note for future reference that hearing the attorneys' arguments first and then setting forth findings and conclusions produces a clearer record, as opposed to interspersing judicial conclusions among questions to the attorneys and their responses and arguments.

(continued)

(continued)

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A-1255-05T2

 

September 29, 2006