SONDRA STEEN v. DAVID MONZO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2528-04T52528-04T5

SONDRA STEEN,

Plaintiff-Appellant,

v.

DAVID MONZO and RESORTS INTERNATIONAL

HOTEL AND CASINO, INC.,

Defendants-Respondents.

___________________________________

 

Argued May 22, 2006 - Decided July 14, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5194-02.

Clifford Van Syoc argued the cause for appellant (Van Syoc Chartered, attorneys; Sebastian B. Ionno, on the brief).

Rosemary Alito argued the cause for respondents (Kirkpatrick & Lockhart Nicholson Graham LLP, attorneys; Ms. Alito, of counsel and on the brief; Lisa M. Yennella-Granese, on the brief).

PER CURIAM

On July 26, 2002, plaintiff, Sondra Steen, filed suit against defendants, her employer, Resorts International Hotel & Casino, Inc., (Resorts) and her immediate supervisor, David Monzo, alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, based on a hostile work environment arising from gender-based sexual harassment and sexual discrimination by Monzo towards her. Defendants moved for summary judgment upon the completion of discovery on October 8, 2004. Plaintiff appeals the Law Division's December 16, 2004 order granting defendants' motion for summary judgment and dismissing plaintiff's complaint with prejudice.

Judge Michael J. Kassell dismissed plaintiff's complaint against Resorts because (1) Resorts proved it was entitled to "safe harbor" from liability as a result of having maintained effective anti-harassment policies and complaint procedures; and (2) Resorts was not vicariously liable for Monzo's actions toward plaintiff pursuant to an agency theory of liability because it was not negligent. The judge dismissed plaintiff's complaint against Monzo because (1) he was not an "employer" as defined by the LAD, and (2) no claim of aiding and abetting liability had been asserted in the pleadings. We affirm.

Plaintiff began her employment at Resorts in 1978, initially sorting money and exchanging dollars for coins in the soft count department. In 1981, she was promoted to a supervisory position, reporting to another supervisor who was in charge of soft count. In 1987, and for about a year thereafter, plaintiff supervised both the soft and hard count rooms and did budget valuations, payroll and logging for both departments. Plaintiff was, thereafter, asked to train Monzo. After plaintiff completed training Monzo, he was made supervisor of hard count and she supervisor of soft count.

The harassment and discrimination that is the subject of this suit allegedly began when Monzo was promoted over plaintiff in August 1998, to the position of count room manager, by Gail Myers, the then casino controller. Plaintiff claims she should have been promoted instead, in light of her qualifications and substantial experience. She claims she was deprived of the promotion because of Myers' physical attraction to and affection for Monzo. She also contends that Myers had previously threatened to terminate her because she embarrassed Myers in an accident report prepared after a hard count employee was injured when a trolley ran over his foot. Myers left Resorts in November 1999, over two years prior to the filing of plaintiff's complaint.

In 1998, the hard count and soft count rooms were merged into one and plaintiff began reporting to Monzo because the count room manager supervised both the soft and hard count departments. After Monzo's promotion, Monzo continued to seek input from both plaintiff and Terry Tyrrell, another female supervisor, regarding the functions of the soft count department. Approximately one year after Monzo's promotion, Monzo allegedly asked plaintiff to prepare the budget for him and left her the appropriate paperwork on her desk. She told him she would not do the budget for him, but would help him with it if he needed help. His attitude thereafter changed towards her. She claims he avoided and ostracized her, and when he finally began to speak to her again it was in a demeaning and curt manner.

During this time, another hard count employee, Robert Campbell, allegedly threw a bucket of coins at Terry Tyrrell and yelled "Catch," which offended plaintiff and led plaintiff to speak with Monzo about the incident. Monzo replied to plaintiff that she and Tyrrell did not "know their place," and that they were "lucky even to have jobs." Monzo allegedly made derogatory comments about the female supervisors in general, saying that they were lazy and did not complete their assignments.

Plaintiff contends that Monzo openly favored male supervisors, permitting them to take a day off as "comp. time" if they worked on their scheduled day off. This privilege was allegedly denied to female supervisors. Plaintiff asserts that Monzo also made derogatory remarks to Tyrrell regarding her weight and physical limitations. He allegedly stated that Tyrrell was "too fat to work in hard count," and "wait until I get you here (hard count). You're going to find out what it really means to work." He continued his offensive remarks even after plaintiff complained to him.

On March 28, 2000, plaintiff was injured on the job by a metal trolley when another employee operating the machine started the tow motor without warning her. Plaintiff developed an ulcer on her wounded leg and missed three months of work the following year as a result. Plaintiff contends that upon her return to work in July 2001, she was again subjected to a hostile work environment. As a result of her leg injury, plaintiff walked with a limp when she returned to her job and was unable to perform certain functions like "keying," a term for emptying coin buckets, which would require her to get down on her knees. When plaintiff asked a co-worker if he could assist her, plaintiff claims that Monzo stated to her, "If you're not 100% fit, you're fired." On July 26, 2001, plaintiff complained to Monzo's immediate supervisor, Gregory Mangel, claiming that Monzo excluded both Tyrrell and herself from every significant matter, such as scheduling, evaluations, and paperwork that took place in their department.

In January 2001, plaintiff had two disputes with Monzo. First, around January 12, 2001, she objected to an assignment he gave her to re-label 400 bill changer boxes that were on two or three trolleys in the trolley room. Plaintiff stated that she felt she could not do it alone and that when she asked other employees to help her, they said it was their understanding that the assignment was hers. While plaintiff questioned Monzo for approximately thirty minutes on the telephone about why she had to perform the assignment by herself, three other employees finished most of the re-labeling. Second, at about the same timeframe, plaintiff discussed her annual performance evaluation dated January 10, 2001, with Monzo. She refused to sign it because she did not agree with it and felt that it was "ridiculous" and "untrue."

Plaintiff submitted her first formal complaint to Resorts on January 17, 2001. She alleged a hostile work environment based on sexual harassment. Plaintiff claimed she reasonably feared she could aggravate her earlier injury by performing this task and there was no reason why she should have had to perform the task alone.

Plaintiff turned her written complaint in to Sharon Pennington, Vice President of Human Resources, who then immediately referred her complaint to Linda Reaves, Director of the Equal Employment Opportunity office (EEO). In her letter to Pennington, plaintiff stated, "For the first time in twenty three years I feel I have been subjected to a hostile working environment at Resorts." Her letter listed many complaints about Monzo, including "verbal abuse" directed to her and Tyrell.

On January 18, 2001, plaintiff was provided with what she claims was a retaliatory evaluation by Monzo, in which he alleged that she did not finish her work and left it for Monzo to complete. Plaintiff met with Reaves on January 19, 2001, two days after submitting her initial complaint. During this meeting, plaintiff complained to Reaves about the "boxes and trolley" incidents, as well as remarks she claimed Monzo was making about her. Reaves assured plaintiff that there would be a confidential investigation of her complaints.

In a letter to Reaves dated January 31, 2001, plaintiff outlined the conduct by Monzo she found to be "out of line and abusive." The first complaint she voiced was that Monzo had been promoted by Gail Myers to the position of Count Room Manager, and that she felt she was overlooked for the promotion. She also complained about her January 18, 2001 performance evaluation, and she expressed concern about her job security. Her letter contained the following specific complaints about Monzo: (1) that he told plaintiff and Tyrrell that they do not know their place; (2) that he told plaintiff and Tyrrell that they were lucky they had jobs; (3) that he said he would never hire a female; (4) that he stated, "you women soft count supervisors are nothing but trouble"; (5) that he made "fat" comments and "stupid female" referrals; (6) that he was trying to get rid of the female supervisors; and (7) that he left the female supervisors out of everything and then would say that they do not do anything.

Terri Tyrrell and another female count room supervisor were interviewed by EEO on January 22, 2001. Monzo was interviewed on January 23, 2001. EEO also interviewed Greg Mangel, Monzo's former supervisor, Michelle Male, a count room employee, and Clarence Livingston, a count room supervisor. On February 9, 2001, Reaves met with Monzo and Robert Allen, the director of operation accounting, to discuss the allegations. The meetings were memorialized in a memo authored by Reaves.

Plaintiff requested and was granted a medical leave of absence due to pain from her leg injury occurring the year before. She was out of work on disability benefits between March 2, 2001 and July 24, 2001. Reaves continued to investigate plaintiff's complaint while plaintiff was out on disability. Among other things, she spoke with Terri Tyrrell and conducted a meeting with Monzo, Allen, and Kristen Sherbon, who was Monzo's supervisor at the time. Prior to the conclusion of plaintiff's leave of absence, Resorts contacted her and asked that she provide a doctor's note with respect to any medical restrictions or accommodations. Plaintiff was granted her request for an accommodation and she returned to work on July 24, 2001.

Upon her return to Resorts, plaintiff complained about a variety of minor work issues, and her complaints were addressed by EEO. Her complaints did not, however, include new complaints of harassing comments directed towards plaintiff from Monzo. On July 26, 2001, plaintiff's third day back, Reaves and Karen Tierney, Director of Employee Relations, held a meeting with Monzo to discuss plaintiff's complaint that she had been excluded from a training program that other supervisors had attended. Plaintiff also complained that Monzo changed her days off, that he allowed male supervisors to work extra days, and that he falsely reported plaintiff as a "no call, no show" even though she had called the security desk and left a message for Monzo that she could not report for work on a certain day. During this timeframe, another account room supervisor, Bill Wiseman, went to EEO with his concerns about plaintiff's conduct and its effect on the morale of the department.

In September 2001, another group meeting was held with plaintiff, Monzo, Reaves and Tierney concerning plaintiff's original complaint. Among the issues addressed at the meeting were plaintiff's work environment, communication, supervisor assignments, the assignment of duties in general, plaintiff's disability, leaves of absence from work, and employee evaluations. A follow-up meeting was held in October 2001. Tierney agreed to have plaintiff's "no call, no show" write-up removed from plaintiff's file and review her evaluation and provide plaintiff with a copy.

The investigation of plaintiff's allegations led to Monzo receiving mandatory training. Specifically, he was assigned to and did attend four "team building" sessions, two "conflict resolution" sessions, two "problem solving" sessions, and two "leadership development" programs. These training sessions took place between October 2001 and March 2002. Plaintiff was notified that Monzo was attending these sessions as a result of her complaint. However, plaintiff was unsatisfied with Resorts' action against Monzo because Monzo was not subjected to any other "discipline" as a result of her complaint.

In June 2002, Andrew Barth, Director of Operational Accounting, was sent an anonymous letter, which alleged plaintiff "had grounds for harassment and sexual harassment." On June 10, 2002, plaintiff was interviewed by Tina Dougherty, the EEO Recruitment Manager, about the anonymous letter. Plaintiff denied writing the letter but indicated to Dougherty that she agreed with its sentiment. Plaintiff said that Monzo had been "treating her badly for years and nothing has ever been done about it." When asked for specific examples of the alleged continuing problem with Monzo, plaintiff complained that: (1) Monzo denied her request to work another day rather than use sick time although he had allowed two male supervisors to do that in the past; (2) Monzo spoke "through her" or "at her;" and (3) she hears that Monzo makes comments about her weight. When asked what solution would be acceptable to her, she said she wanted Monzo to treat her with respect. Dougherty advised plaintiff that she would investigate the letter and get back to plaintiff.

Dougherty also met with and interviewed Monzo and Victoria Simon, Casino Accounting Manager, about the anonymous letter. On June 11, 2002, Dougherty had a follow up conversation with Simon. On June 14, 2002, Dougherty again met with plaintiff. She informed plaintiff that Monzo denied any wrongdoing since the meeting held in October and that he maintained that he goes out of his way to make plaintiff feel comfortable. According to Dougherty's notes, plaintiff disagreed, specifically citing "that she has not yet received a copy of her written warning for attendance or her last performance review."

On June 18, 2002, plaintiff left on an approved leave of absence for knee surgery. The leave was extended several times until December 10, 2002. Plaintiff did not return to work when the last extension expired. After a communication from Dougherty, plaintiff's physician indicated on January 13, 2003 that plaintiff was unable to resume the essential functions of the count room supervisor position at that time. Since plaintiff had exhausted all federal and company leave, Dougherty informed plaintiff that her request for additional time off was not granted, that Resorts would work with her to find her another position at Resorts, that she was being placed in a thirty-day hiring status, and that it was her responsibility to contact a human resource manager to discuss positions for which she might be qualified. Plaintiff did not contact Resorts as instructed and her employment was thereafter terminated.

Plaintiff alleged in her LAD complaint that as a result of a hostile work environment, she suffered emotional distress, humiliation, embarrassment, and damage to her reputation. She presents the following arguments for our consideration:

POINT I

THE TRIAL COURT IMPROPERLY GRANTED SUMMARY JUDGMENT.

POINT II

THE TRIAL COURT ERRED IN HOLDING THAT THE DEFENDANTS WERE NOT LIABLE TO THE PLAINTIFF UNDER THE LAD FOR ANY DAMAGES THAT RESULTED FROM THE HOSTILE WORK ENVIRONMENT.

A. THE TRIAL COURT ERRED IN CONCLUDING THAT MONZO WAS NOT A MEMBER OF UPPER MANAGEMENT.

B. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT, SINCE RESORTS DELEGATED AUTHORITY TO MONZO TO CONTROL THE PLAINTIFF'S WORK ENVIRONMENT AND MONZO ABUSED THAT AUTHORITY.

C. THE TRIAL COURT ALSO ERRED BY HOLDING THAT RESORTS WAS NOT NEGLIGENT IN ITS HANDLING AND ALLEGED REMEDIATION OF THE PLAINTIFF'S SEXUAL HARASSMENT COMPLAINTS.

POINT III

THE TRIAL COURT ERRED BY REFUSING TO CONSIDER THE NUMEROUS DISPARAGING COMMENTS REGARDING PLAINTIFF'S WEIGHT AND PHYSICAL CONDITION AS PART OF HER LAD CLAIM.

POINT IV

THE TRIAL COURT ERRED WHEN IT REFUSED TO STRIKE PORTIONS OF THE DEFENDANTS' STATEMENT OF MATERIAL FACTS WHICH VIOLATED R. 4:46 AND R. 1:6-6.

We review the trial court's grant of defendant's motion for summary judgment de novo, applying the same legal standard as the trial court under Rule 4:46-2. See Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). "[S]ummary judgment must be granted if '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.'" Id. at 402 (quoting R. 4:46-2(c)); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995).

The "essence of the inquiry" is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). The trial court is required to consider whether the "competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. The opposing party must nevertheless offer facts, which are substantial or material in opposing the motion, in order to defeat the grant of summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954).

Plaintiff received and acknowledged receipt of at least four employee handbooks during the course of her career at Resorts, beginning as early as April 1979. In November 1992, plaintiff attended a reorientation meeting in which she viewed the handbook orientation video, received an employee handbook, and signed an acknowledgment confirming the same. In March 1995, plaintiff received the Resorts "Employee Handbook and Dress & Appearance Standards" and signed an acknowledgment confirming the same. In February 1998, plaintiff received a copy of the "Core Values Handbook" and signed an acknowledgment confirming receipt.

The two most recent handbooks contain a section expressly prohibiting sexual harassment and providing procedures for employees to follow when submitting complaints. The handbooks provide, in pertinent part, that, "[h]arassment/discrimination in the workplace is strictly forbidden," and that "[e]mployees are expected to report incidents of harassment/discrimination as soon as possible to Affirmative Action. Affirmative Action will thoroughly investigate written complaints and take immediate disciplinary action, up to and including termination, against any employee engaging in sexual harassment or discrimination."

Throughout the period relevant to this case, Resorts had a written anti-discrimination and anti-harassment policy. Its June 2000 policy provided:

It is Resorts Atlantic City policy that all employees are able to enjoy a work environment free from all forms of harassment and discrimination, including race, sex, religion, national origin, ancestry, age marital status, sexual preference and any mental or physical disability (collectively referred to as "protected class characteristics") . . . . All forms of unlawful employment discrimination/harassment are strictly prohibited.

Unlawful discrimination/harassment under-mines the integrity of the workplace and interferes with a positive employment relationship. Discrimination/harassment will not be tolerated by anyone in the workplace. The prohibition extends to supervisors, coworkers, vendors or other non-employees and applies to conduct occurring in the workplace as well as conduct which, although it occurs outside of the workplace, can be reasonably regarded as an extension of the workplace.

Resorts' policy further provided that, "[a]ny employee who believes he/she has been subjected to or has witnessed unlawful discrimination/harassment is encouraged to promptly report the incident to his/her supervisor or the EEO Office." Resorts' policy also provides a detailed "Complaint Process," which explains to employees how Resorts' EEO Office will investigate the complaint.

Resorts conducted anti-discrimination and anti-harassment seminars during the time that plaintiff and Monzo were employed by Resorts. In January and February 2000, plaintiff attended a harassment training seminar and signed a certification confirming that she attended the seminar. During the same timeframe, Monzo also attended a harassment training seminar and signed a certification confirming that he attended. Monzo testified that he attended training seminars devoted to sexual harassment and discrimination at least three times and "maybe more" while working at Resorts. Monzo also testified that he most likely received a copy of Resorts' anti-discrimination/harassment policy via interoffice mail while working at Resorts.

Although plaintiff points to Monzo as the source of the harassment and hostile work environment, she alleges that Resorts is liable to her under agency principles, which provide that an employer, whose supervisory employee is acting within the scope of his or her employment, is liable for the supervisor's conduct in creating a hostile work environment. Plaintiff asserts that employers have an affirmative duty to take aggressive steps to avoid and prevent discrimination of all types, and that a negligent failure to do so warrants finding an employer liable for compensatory damages under the LAD. Plaintiff additionally contends that an employer is liable for emotional distress damages caused by a hostile work environment if (1) upper management employees knew or should have known of the harassment and failed to take effective remedial measures to stop it; or (2) the employer delegated authority to the alleged harasser to control the plaintiff's working environment and the alleged harasser abused that authority to create a hostile work environment; or (3) the employer was negligent by failing to take reasonable steps to prevent the harassment from occurring. Plaintiff claims that "Resorts is liable to her under all three theories."

In Lehmann v. Toys 'R Us, Inc., 132 N.J. 587 (1993), the Supreme Court stated:

We hold that a plaintiff states a cause of action for hostile work environment sexual harassment when he or she alleges discriminatory conduct that a reasonable person of the same sex in the plaintiff's position would consider sufficiently severe or pervasive to alter the conditions of employment and to create an intimidating, hostile, or offensive working environment.

We further hold that in the determination of an employer's liability for damages when an employee raises a hostile work environment discrimination claim against a supervisor: (1) an employer will be strictly liable for equitable damages and relief; (2) an employer may be vicariously liable under agency principles for compensatory damages that exceed equitable relief; and (3) an employer will not be liable for punitive damages unless the harassment was authorized, participated in, or ratified by the employer.

[Id. at 592.]

In Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 120-21 (1999), the Supreme Court determined that "employers who promulgate and support an active, anti-harassment policy[]" should be entitled to a "safe haven" from vicarious liability for the harassing conduct of an employee. In Gaines v. Bellino, 173 N.J. 301 (2002), the Court reiterated:

We adhere to the principle that if an employer has exercised due care in acting to prevent a sexually discriminatory hostile work environment, vicarious liability should not attach. The establishment of an effective anti-sexual harassment workplace policy and complaint mechanism evidences an employer's due care and may provide affirmative protection from vicarious liability.

[Id. at 303.]

The circumstances relevant to determining whether an employer can enjoy the benefit of the protection of a "safe haven" from vicarious liability due to an employee's harassing conduct of others are: (1) periodic publication of the employer's anti-harassment policy, (2) the presence of an effective and practical grievance process for employees to use, and (3) training for workers, supervisors, and managers concerning how to recognize and eradicate unlawful harassment. Id. at 314.

At the conclusion of the motion argument on summary judgment, the judge asked plaintiff's counsel, "Is there any evidence in this case that after these policies were set forth, they were just basically left to collect dust on everybody's desk and everybody kind of winked and nodded, you know, away from it?" Plaintiff's counsel responded, "No, judge." There were also no allegation in this case, unlike in Gaines, that there were other employees at Resorts that had not been investigated or dealt with under the policy and as a result employees felt that it would be futile for them to make a complaint.

The trial judge, in his findings stated,

"In light of the known prevalence of sexual harassment a plaintiff may show that an employer was negligent by his failure to have in place well publicized and - and enforce anti-harassment policies, effective formal and informal complaint structures, training and/or monitoring mechanisms." I find here that the plaintiff - there's not enough evidence in this case from which a jury can conclude that Resorts was negligent in that regard and also that the flip side of that is also true that Resorts has met its burden of demonstrating that it should be able to take advantage of the safe harbor of demonstrating that it had these procedures in effect and, therefore, should be immune so to speak. I'm not sure that immune is technically the correct word, but should be immune from liability from Monzo's statement. (emphasis added).

We are satisfied that the judge correctly determined that Resorts was able to satisfy all of the factors enumerated in Gaines. Resorts had in place anti-discrimination policies, along with an effective complaint and investigation system for harassment claims by employees that permits Resorts to be accorded protection when a member of its staff violates the policies it has put in place. We are convinced, therefore, that Resorts is entitled to the protection of a "safe haven."

For employers that do not qualify for the "safe haven" principles, agency law controls liability for compensatory damages in cases involving claims of supervisory hostile work environment sexual harassment. Id. at 312. The Supreme Court has adopted Section 219 of the Restatement (Second) of Agency as the "fitting construct" for the agency analysis. Gaines, supra, 173 N.J. at 312.

The factors identified as being relevant in determining whether an employer has acted negligently in failing to establish an anti-harassment policy in its workplace are:

(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 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 313.]

The trial court found that Resorts was not negligent in allowing harassment to occur, and stated the following:

I'm satisfied that the policies issued by Resorts are adequate or non-negligent so to speak. . . . [T]he employee handbook of Resorts on page 13 specifically indicates "Harassment/discrimination in the workplace is strictly forbidden. It is the policy of Resorts of Atlantic City that all employees are able to enjoy a work atmosphere free from all forms of harassment and discrimination, including sexual harassment. Harassment/discrimination is conduct that is offensive to the individual which harms morale or interferes with the effectiveness of our business."

And then on page 14 following that there are some examples that are provided, specifically, "as indicated specific behaviors that Resorts of Atlantic City may consider harassment include, but are not limited to: unwelcome physical contact, sexually explicit language or gestures, a hostile working environment . . . . Employees are expected to report incidents of harassment [and] sexual discrimination as soon as possible to affirmative action. Affirmative action will thoroughly investigate . . . written complaints and take immediate disciplinary action up to and including termination against any employee engaging in sexual harassment or discrimination."

We then go to . . . the August 1st, 1997 Policy Memo . . . revised June 8th, 1999, which . . . contains the following relevant language: "Specific behaviors that Resorts . . . Casino Hotel may consider harassment includes but is not limited to verbal or physical conduct of a sexual nature or based upon a person's gender."

And then . . . the June 1st, 2000 policy memo. At the bottom, "Examples of behaviors that may be found to constitute unlawful discrimination or harassment include but are not limited to the following: treating an individual differently due to his or her relationship or association with persons . . . who possess protected class characteristics, providing less favorable terms and conditions of employment to an individual base upon race, religion, age or other protected class characteristics," and it goes on.

The trial court concluded:

It seems to me that any individual who would read all of that, not just what I read, but everything that's contained in those policy memos and the handbook, would know particularly by the year 2000 that comments about women not belonging in the workforce, women belonging in the bedroom and in the kitchen is violative of . . . Resorts' policy. It's pretty hard to make an argument that somebody would not know that. And the fact that despite the training, despite the policy memos, despite the handbook that Monzo allegedly made these statements doesn't mean . . . that the policies, the training, the handbook were [not] in effect. It merely means that human nature is human nature, that despite the best efforts there are still people that are not deterable.

The motion judge reiterated the Supreme Court's statement in Gaines: "[A]lthough a bright line rule was not established for the standard of negligence required in sexual harassment claims, several factors were identified as being relevant to determining whether an employer had . . . acted negligently in failing to establish an anti-harassment policy in the workplace." The judge went on to analyze the five Gaines factors in relation to this case.

An employer is not subject to liability for the conduct of a supervisor acting outside the scope of his employment unless the supervisor's behavior falls within one of the exceptions set forth in Section 219(a)(2) of the Restatement. Ibid. Section 219(a)(2) provides, in pertinent part, that:

A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the master, or

(d) the servant 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.

[Restatement (Second) of Agency, 219 (1958).]

Although we are convinced, for the reasons described above, that Resorts is entitled to a "safe haven," even if Resorts' actions in response to plaintiff's complaints are analyzed under vicarious liability principles, we are satisfied that the trial judge correctly held that Resorts was not liable because it was not negligent. The trial court applied the appropriate factors and correctly determined that Resorts met each factor. First, Resorts published "several" sufficient and "formal" policies prohibiting harassment in the workplace. These policies were published in its Employee Handbooks, which plaintiff received during the course of her employment. Second, Resorts had both formal and informal grievance procedures in place for employees to use and these procedures were in "full force and effect" and were "utilized" and "acted on." Third, Resorts conducted sufficient anti-harassment training seminars and Monzo attended three such training seminars. Fourth, as admitted by plaintiff's counsel at oral argument at the motion hearing, there was no evidence that the mechanism in place to monitor the trustworthiness of Resorts' policies and complaint structures was ineffective or nonexistent. Fifth, Resorts' employee's handbook and policies evidenced an unequivocal commitment from the highest level of Resorts that harassment would not be tolerated by strong language to that effect in the Resorts' employee handbook and is further evidenced by the fact that the Executive Vice President signed the August 1997 anti-harassment policy and the President signed the June 2000 and January 2003 anti-harassment policies. Finally, there was evidence that Resorts consistently practiced its policy of anti-harassment, corroborated by plaintiff's counsel's agreement that there were no allegations that other employees had not been dealt with according to the policy.

An employer must not only issue and publicize its anti-harassment policy, it must also implement the policy's investigation and enforcement provision if complaints are brought to its attention. See Payton v. N.J. Tpk. Auth., 148 N.J. 524, 536-37 (1997) ("[T]he effectiveness of an employer's remedial steps . . . is also relevant to an employer's affirmative defense that its actions absolve it from all liability."); Lehmann, supra, 132 N.J. at 623; Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539 (1990) (holding employers are obligated to investigate claims of harassment).

Here, the record is clear that as soon as plaintiff submitted her complaint on January 17, 2001, Resorts immediately began investigating it. Resorts held numerous interviews with employees. It is also undisputed that Resorts continued to investigate plaintiff's complaint while she was out of work between March 2, 2001 and July 24, 2001. We are satisfied that Resorts' actions were effective because plaintiff never alleged that harassing statements continued after the investigation began in January 2001. Although Resorts determined there was insufficient evidence to establish harassment, it sent Monzo to extensive training. The only complaints by plaintiff thereafter were limited to minor workplace issues. Plaintiff did not have a right to dictate to Resorts the specific type of remedial action that was undertaken.

Plaintiff contends that she was mistreated up "until the day [she] was terminated." However, the facts indicate otherwise. Plaintiff argues that even if Resorts did investigate and remediate plaintiff's complaint, "acting after the fact" is not sufficient to avoid liability. We disagree. Because Resorts had a policy and a complaint procedure and plaintiff failed to invoke that procedure before January 17, 2001, Resorts is insulated from liability for anything occurring before then. See Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S. Ct. 2275, 2292-93, 141 L. Ed. 2d 662, 688-89 (1998) (holding that demonstration that an employee failed to use a complaint procedure provided by the employer in response to sexual harassment by a supervisor will normally suffice to satisfy employer's burden of demonstrating lack of reasonable care by employee to avoid the harm); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633, 655 (1998).

Lehmann provides that "a plaintiff may show that an employer was negligent by its failure to have in place well-publicized and enforced anti-harassment policies . . . ." Lehmann, supra, 132 N.J. at 621. The fact that Resorts had such policies is undisputed. Resorts was not negligent before plaintiff's complaint was filed because it had the appropriate policies and training in place. It was not negligent after because it conducted an immediate and effective investigation.

In addition, plaintiff's counsel admitted at oral argument on Resort's motion for summary judgment that Resorts was not negligent in how it handled the investigation.

THE COURT: So, the baseline question is this, what was negligent about Resorts' investigation of the matter?

MR. BURDEN: I don't think -- Judge, I don't think they were negligent in how they handled the investigation.

Plaintiff argues that Resorts can be held liable under Section 219(d) of the Restatement because it delegated to Monzo the authority to control the work environment and Monzo abused that authority to create a hostile work environment. Under Section 219(d) of the Restatement, "[i]f an employer delegates to a supervisor the authority to control the work environment and the supervisor abuses that authority, vicarious liability may be found to exist . . . ." Gaines, supra, 173 N.J. at 312; accord Lehmann, supra, 132 N.J. at 620. Several questions are relevant to this analysis:

(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?"

[Gaines, supra, 173 N.J. at 313 (alteration in original).]

"If those questions are answered in the affirmative, the employer may be [held] vicariously liable under section 219(2)(d) for the hostile work place environment created by the supervisor." Ibid.

We are satisfied that the facts here establish that Resorts did not delegate to Monzo the responsibility to execute its policies in the workplace. Monzo was not a department head or compliance officer. The trial court correctly determined that he was a "low level supervisor" who did not set Resorts' policy concerning sexual harassment. The undisputed record also shows that Monzo did not have broad supervisory powers over plaintiff, as he had no ultimate authority to hire, fire, promote or discipline her. Plaintiff has cited no facts in the record to the contrary and none have been uncovered. Accordingly, we are convinced that Resorts cannot be held liable under this theory.

However, as we previously indicated, even assuming that Resorts delegated to Monzo the authority to control the work environment and he abused that authority, plaintiff is still not liable because Resorts was entitled to the "safe haven" defense because it took prompt and effective remedial action pursuant to its anti-harassment policy.

We are equally satisfied that summary judgment was correctly granted in favor of Monzo, individually. This court in Herman v. Coastal Corp., 348 N.J. Super. 1 (App. Div.), certif. denied, 174 N.J. 363 (2002), spoke to the issue of individual liability under the LAD. We stated,

N.J.S.A. 10:5-12a prohibits unlawful employ-ment practices or unlawful discrimination only by "an employer." An individual supervisor is not defined as an "employer" under the LAD. However, N.J.S.A. 10:5-12e deems it unlawful "[f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." To "aid" means "to assist, support or supplement the efforts of another," and to "abet" means "to encourage, counsel, incite or instigate."

[Herman, supra, 348 N.J. Super. at 24 (citations omitted).]

Monzo does not meet the definition of an "employer" under N.J.S.A. 10:5-15e and because plaintiff did not plead a cause of action for aiding and abetting liability, Monzo is also entitled to summary judgment as a matter of law.

Affirmed.

 

 

Rider #2 to plaintiff's case information statement asserts as error the trial court's failure to consider, as part of plaintiff's LAD claim, disparaging comments allegedly made by Monzo regarding plaintiff's weight and physical condition. At oral argument, plaintiff's counsel conceded that plaintiff's complaint did not contain a separate count alleging handicap discrimination under the LAD. Plaintiff's counsel contends that the demeaning and derogatory comments about plaintiff's weight attributable to Monzo are actionable as part of her gender-based claims.

"Soft count" deals with paper money and "hard count" deals with coins.

(continued)

(continued)

31

A-2528-04T5

July 14, 2006