DAISY ROSADO v. COUNTY OF PASSAIC

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3593-04T2

DAISY ROSADO,

Plaintiff-Respondent,

v.

COUNTY OF PASSAIC,

Defendant-Appellant.
___________________________

Text Box
 
June 12, 2006

Submitted November 16, 2005 - Decided

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No.
L-3639-02.
 
Lum, Danzis, Drasco & Positan, attorneys for
appellant (Wayne J. Positan, of counsel;
Richard A. West, Jr., of counsel and on the brief).

Davis, Saperstein & Salomon, attorneys
for respondent (Andrew S. Bosin, on the
brief).

PER CURIAM

Defendant County of Passaic ("County"), appeals from a jury verdict awarding plaintiff Daisy Rosado $50,000 in compensatory damages for acts of retaliation committed by the County and a County employee as a subpart of her underlying sexual harassment law suit, as well as $76,111.88 in attorneys fees and $10,523.45 in litigation costs. By contrast, the jury found that plaintiff had not been sexually harassed by her supervisor.
Defendant argues that plaintiff's trial presentation improperly wove and blended together evidence of the alleged harassment with the retaliation cause of action, thus, depriving the jury of the ability to distinguish between these two causes of action. Therefore, according to defendant, the jury's retaliation verdict is inherently unreliable, because of the strong likelihood that it was not supported by sufficient credible evidence that defendant retaliated against plaintiff for pursuing her claims of sexual harassment.
After reviewing the record before us and considering prevailing legal standards, we affirm. We are satisfied that the evidence presented at trial is sufficient to uphold the jury's finding that defendant's post-complaint employment actions against plaintiff were in retaliation for her sexual harassment allegations against her supervisor.
We will examine the issues presented by defendant in the context of the following facts, developed here from the evidence presented at trial.

I
A
Incidents of Alleged Sexual Harassment
 
From September 2001 through May 2002, plaintiff was employed in Passaic County's Personnel Department. The Personnel Director, Juan Torres, was her direct supervisor. Plaintiff testified that in September 2001, Torres forced her to work overtime, and while working with her, told her that "he can't stop thinking about [her]; that he misses [her] when [she] go[es] home, that there's no sparks between him and his wife." Torres also sent flowers to her home that same day.
Plaintiff expressed her clear objections to Torres's un- welcome conduct on at least four occasions. On September 14, 2001, she immediately left work in response to Torres's statement to her that "he can't stop thinking about [her]; that [she is] always on his mind; and that he misses [her] when [she] go[es] home." After she received the flowers from Torres, plaintiff told him that such actions were inappropriate.
In September 2001, plaintiff called her former supervisor, Angel Roman, who was the Executive Director of the Passaic County Housing Authority, to "discuss a particular situation" involving Torres. She told Roman that Torres was "coming on to her" and that he had sent her flowers. She also told Roman that Torres would become agitated when she had male visitors, and would make inappropriate remarks to her.
Roman advised plaintiff to see the County Administrator, James Convery. Although the County's Anti-Harassment Policy, requires supervisory personnel "to ensure adherence to and compliance with this policy and upon being informed of possible sexual harassment . . . to take appropriate immediate action," Roman did not file a formal complaint on plaintiff's behalf. Plaintiff was also reluctant to do anything more formal at that time.
Plaintiff did not follow Roman's advice, opting instead to speak directly to Torres. In October of 2001, plaintiff told Torres that she wanted to work for Roman. In response to Torres's e-mail request, plaintiff agreed to remain working under Torres's supervision. Shortly thereafter, plaintiff was given a $5,000 raise.
On February 25, 2002, plaintiff told fellow Personnel Department employee Brenda Prince about Torres's behavior towards her both in and out of the office. When Prince reported these allegations to County Administrator Convery, he told her that plaintiff should speak with him directly. Plaintiff testified that on February 25, 2002:
[I] told Mr. Convery everything. I told Mr. Convery that Mr. Torres confessed that he had a crush on me. . . . I told Mr. Convery that Mr. Torres had contacted my sister to interrogate her about my personal life. . . . I also told Mr. Convery that Mr. Torres sent me flowers at home. I also told Mr. Convery that Mr. Torres has me working overtime constantly and that I didn't want to work overtime because I felt uncomfortable being with him alone.

According to plaintiff, at the end of this conversation, Convery wanted to know whether she had discussed this problem with anyone else. He also told her "to keep it hush-hush because it was political." Convery did not speak to Torres concerning the matter, and for the next three months, plaintiff remained under Torres's supervision.
B
Evidence of Retaliation
 
Plaintiff contends that after she complained to Convery, Torres began to act in a rude and obnoxious manner. He no longer let her open his confidential mail; excluded her from doing his memos, letters and reports; and took the office keys away from her. In March of 2002, plaintiff told Torres that if he did not stop harassing her, she would resign her position. Around the same time, plaintiff told Torres's sister-in-law, Elizabeth Gonzalez, that Torres was acting inappropriately towards her and that she was seeking a transfer as a result. Gonzalez then told Torres's wife about plaintiff's allegations. On May 6, 2002, Torres told plaintiff that he wanted to transfer her to a different department, and that he intended to give her job to Gonzalez. According to plaintiff, she responded by saying, "you're getting rid of me because I don't give into your sexual advances . . . and because I reported you to Convery. . . ."
On May 7th plaintiff did not report to work. She instead consulted with Dr. Elum, a psychiatrist. The next day, plaintiff attempted to give a medical leave note from Dr. Elum to Torres, but he refused to accept it. On the same day, plaintiff filed a written complaint of sexual harassment with the Passaic County Counsel's office ("County Counsel"). She then went on medical leave. Torres learned of Rosado's formal written complaint by May 9, 2002.
Assistant County Counsel Charles Sciarra was assigned to investigate plaintiff's complaint. Sciarra met with plaintiff on May 17, 2002, however he did not give her any information as to how or when she would stop working with Torres. In fact, plaintiff was told during this meeting that she should "stay out two more weeks because they didn't know where to put [her] . . . ." Plaintiff extended her medical leave an additional two weeks, through June 2, 2002. Torres remained plaintiff's supervisor of record during this time period.
According to Torres, no one told him not to contact plaintiff or to stay away from her after she filed the formal complaint with County Counsel. On or around May 17, 2002, Torres accessed plaintiff's computer and de-listed her e-mail. This effectively prohibited plaintiff from retrieving both work and personal e-mails in her account. On June 21, 2002, Sciarra completed his investigation and submitted a report to County Counsel. In July 2002, the County terminated Torres's employment.
When plaintiff returned to work on June 12, 2002, she was temporarily assigned to the Finance Department. At this time, her complaint against Torres was being investigated. This temporary assignment, however, did not insulate plaintiff from potential encounters with Torres. In addition to being located in the same building (although on another floor) as the Personnel Department, the Finance Department also had regular dealings with most county operations, including the Personnel Department.
Plaintiff testified about three specific post-complaint incidents between her and Torres. The first occurred shortly after May 8, 2002, when plaintiff went to the Personnel Department to pick up her paycheck. According to plaintiff, Torres refused to turn the check over to her. In response, she immediately sought the assistance of County Administrator Convery, and informed him of what had just transpired with Torres.
Upon witnessing this encounter between Torres and plaintiff, co-worker Prince took the check from Torres and went to Convery's office to report the incident. When she arrived, Prince saw plaintiff and gave her the check. Convery agreed with plaintiff that Torres's conduct was inappropriate, and acknowledged that the County was duty-bound to prevent further incidents.
The second incident occurred before plaintiff started working in the Finance Department. At one point, plaintiff had to return to the Personnel Department to pick up her personal belongings. Torres was present when she arrived. Although there were no words exchanged, the encounter left plaintiff visibly upset.
The third incident took place after plaintiff began working in the Finance Department. She testified that she answered the phone two or three times when Torres called. According to plaintiff, Torres was rude and intimidating. She conceded, however, that all the calls were short, and that Torres asked for someone else shortly after she answered the phone.
Sciarra testified on behalf of the County. According to Sciarra, plaintiff was reassigned to the Finance Department so "she would not have to engage with Mr. Torres even while the investigation was going on . . . ." Convery also testified that the transfer reflected the County's concerns regarding Torres's alleged conduct, and was intended to avoid the possibility of retaliation by Torres.
Plaintiff argued before the jury, however, that at no time prior to being transferred did the County meet with her to discuss the transfer or tell her the reason she was being transferred. In fact, no County official even informed her of the transfer. She first learned about it when a coworker told her that Convery wanted plaintiff to report to the Finance Department. Plaintiff did not receive any training in connection with her new position, nor was she given any information about her new job duties.
Plaintiff first learned that Torres's employment had been terminated when she read an article about it in a local newspaper. In response, she wrote a letter to County officials requesting that she be transferred back to the Personnel Department. Plaintiff testified that the County's failure to communicate with her as to the status of the investigation, coupled with the uncertainty of her employment situation caused her great emotional trauma and stress. In July and August of 2002, she sought medical treatment related to her anxiety as to how the County was "avoiding [her] and how they excluded [her] from the investigation. . . ." After meeting with a therapist, plaintiff went on medical leave for an entire month.
The record is clear that during her medical leave from May 8th up until June 12, 2002, no one from the County contacted plaintiff about her request to return to the Personnel Department. Finally, in September of 2002, plaintiff's coworker Prince telephoned her and informed her that she would be returning to her previous position in the Personnel Department at the same pay-level.
At trial, defendant's counsel advanced several reasons for plaintiff's transfer, the predominant being to avoid interactions between plaintiff and Torres. Plaintiff challenged these explanations, arguing that the transfer was an adverse employment action initiated by the County as retaliation for her complaints against Torres. Ironically, Torres's testimony undermined one of the County's reasons (layoffs in personnel) for the transfer. He testified that at the time plaintiff's transfer was suggested, she was not in danger of losing her job.
The jury was obviously free to accept or reject all or part of any of these competing versions and explanations of events.
C
Trial Court's Jury Charge on Retaliation
 
The court charged the jury in regards to the claim of retaliation as follows:
Ms. Rosado also contends that defendant, County of Passaic, retaliated against her because the County of Passaic failed to take any action to stop or prevent Mr. Torres harassing and objectionable conduct from continuing to occur after she complained about such conduct to Angel Roman and James Convery.

Specifically, Ms. Rosado contends that she asked Mr. Convery to assist her in transferring out of the personnel department and that . . . Mr. Convery failed to do anything to separate Mr. Torres from Ms. Rosado or to stop his conduct from occurring.

Plaintiff contends that defendant, County of Passaic, retaliated against her because after she complained about Mr. Torres unwelcome or objectionable sexual harassment to Mr. Convery, Mr. Torres started to treat Ms. Rosado differently with a lack of respect in that he was mean and rude.

Ms. Rosado further contends that the County of Passaic retaliated against her because Mr. Torres took away her job duties such as opening up the confidential mail and taking the office key away from her.

Ms. Rosado also contends that the County of Passaic retaliated against her when on May 6th, 2004 Mr. Torres suggested that she transfer out of his office and be replaced with his sister-in-law, Elizabeth Gonzalez.

In doing so, plaintiff states that Mr. Torres told her that he has the power to transfer her and that he no longer trusted her. Ms. Rosado further contends that the County of Passaic retaliated against her because it took no steps to separate her from Mr. Torres after she went on medical leave on May 7, 2002.
 

* * * *
 
 
Ms. Rosado further contends that the County of Passaic retaliated against her when she could not retrieve her emails on her computer located in the personnel department because the account had been deactivated.

Ms. Rosado further contends that the County of Passaic retaliated against her when it transferred her to the finance department for the following reasons.
 

* * * *
 
 
[T]he County of Passaic did nothing to prevent Mr. Torres from continuing to harass Ms. Rosado because he would -- he would repeatedly call the finance department knowing she would be answering the line.

And [ ] although Ms. Rosado earned the same rate of pay, the transfer to finance was a demotion because she was performing entry level clerk tasks.

Ms. Rosado further contends the County of Passaic retaliated against her when it failed to tell her what was going on in the investigation.

Against this factual backdrop, we will now address the legal arguments raised by defendant Passaic County.
II
Legal Analysis
 
In addressing an argument challenging a jury verdict based on the insufficiency of the evidence, it is well-settled that "'if reasonable minds could differ,' the verdict must stand." Doe v. Arts, 360 N.J. Super. 492, 503 (App. Div. 2003) (quoting Johnson v. Salem Corp., 97 N.J. 78, 92 (1984). Here, defendant argues that there was insufficient evidence to support the jury's verdict of retaliation. Resolution of this issue requires a fact sensitive analysis. A jury s finding of retaliation is entitled to great deference. Kluczyk v. Tropicana Prods., Inc., 368 N.J. Super. 479, 495 (2004). A reviewing court should not overturn such a verdict nor grant a new trial unless the verdict results in a clear miscarriage of justice. Lockley v. Turner, 344 N.J. Super. 1, 13 (App. Div. 2001), aff'd in part and modified on remand on other grounds, sub nom. Lockley v. Dep't of Corr., 177 N.J. 413 (2003).
Under our State's Law Against Discrimination ("LAD"), an employer discriminates if reprisals are taken:
[A]gainst any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 10:5-12d.]

To advance a prima facie case of retaliation under the LAD, an employee must prove that: (1) he or she engaged in a protected activity; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity with knowledge of the protected activity; and (3) a casual link exists between the employee's protected activity and the employer's adverse action. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995); Abramson v. William Paterson College, 260 F.3d 265, 286 (3d Cir. 2001). Even if a plaintiff is unsuccessful on the underlying sexual harassment or discrimination claim, the plaintiff may still be successful on the retaliation action. Kluczyk, supra, 368 N.J. Super. at 494-95.
Evidence of a "complaint" can take a number of forms. A formal letter of complaint to an employer is not the only acceptable indicia of "protected conduct" for purposes of a retaliation claim; informal protests of discrimination to management may qualify as protected activity as well. DeJoy v. Comcast Cable Communs., Inc., 968 F. Supp. 963, 988 (D.N.J. 1997).
"Adverse employment action" is a term that must be analyzed in the context of the employee's work history. In order to constitute an "adverse employment action" under the LAD, retaliatory conduct must adversely affect the terms and conditions of the plaintiff's employment or otherwise limit or segregate the plaintiff in a way that deprives him or her of employment opportunities or affects his or her status as an employee. Marrero v. Camden County Bd. of Soc. Servs., 164 F. Supp. 2d 455, 473-74 (D.N.J. 2001). A plaintiff can demonstrate an adverse employment action by showing that the defendant created an intolerable situation that effectively forced the plaintiff to transfer to a lesser position. Shepard v. Hunterdon Developmental Ctr., 174 N.J. 1, 27-29 (2002).
In determining whether the employer has committed a retaliatory employment action, the court should consider whether there has been a "loss of status, a clouding of job responsibilities, diminution in authority, disadvantageous transfers or assignments, and toleration of harassment by other employees." Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002), aff d as modified, 179 N.J. 425 (2004). We must also consider the responsiveness of the employer to the employee s complaints, and all other relevant circumstances. Ibid. For purposes of establishing a claim of retaliation under LAD, the requisite causal link can be found even if time elapses between the protected activity and the adverse employment decision. Romano, supra, 284 N.J. Super. at 550.
Once an employee establishes a prima facie case of retaliation under LAD, the burden of production, but not the burden of persuasion, then shifts to the employer to articulate a "legitimate, non-retaliatory reason for the adverse action." Jamison v. Rockaway Township Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). If the employer provides a business reason for the employment action, then the employee must show that a retaliatory intent motivated the employer's actions, either directly, by showing that a discriminatory reason more likely than not motivated the decision, or indirectly, through evidence that the proffered reason is pretextual. Romano, supra, 284 N.J. Super. at 551; Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996); Marrero, supra, 164 F. Supp 2d at 474-75.
In going about this balancing test, we have explained that a plaintiff establishes retaliatory conduct if the action was "so severe and pervasive that a 'reasonable person' in plaintiff's position could believe the conditions of her employment had changed and the workplace had become hostile." Mancini, supra, 349 N.J. Super. at 565. See footnote 1
An employer may be vicariously liable for a supervisor s sexual harassment of an employee where the employer delegated the authority to the supervisor to control the work environment and the supervisor s exercise of that authority resulted in a violation of LAD. Schmidt v. Smith, 294 N.J. Super. 569, 578 (App. Div 1996), aff'd, 155 N.J. 44 (1998).
Here, plaintiff testified concerning a number of specific incidents of alleged retaliatory conduct by the County. As we have noted, a rational factfinder can find from this evidence that the County's response to plaintiff's complaints were intended to dissuade her from pursuing her claims against Torres. The following examples illustrate this point: (1) the County's insensitivity to plaintiff's distress caused by her assignment to the Finance Department; (2) the lack of training for her new position; and (3) the failure to protect plaintiff from the emotional trauma caused by having to interact with her harasser. More importantly, however, plaintiff complained to her supervisor on several occasions between February 2002 through May 2002 about the harassment, and they simply ignored the complaints and requests for a transfer.
An employer is generally liable for a hostile work environment created by a supervisor. Heitzman, supra, 321 N.J. Super. at 145-46. These incidents provide a rational basis for a jury to conclude that these were not isolated acts, but part of a campaign intended to deter plaintiff from pursuing her right to a discrimination-free work environment. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 622 (1993).
There is also no dispute that the County knew she engaged in protected activity. Rosado complained directly to Roman, Torres, Pascrell and Convery. Rosado personally met with Roman, Torres and Convery and expressed her concern and displeasure with Torres's inappropriate conduct. At the time of Torres's retaliatory conduct, plaintiff had already complained to Torres, Roman and Convery. The County's inaction was retaliatory since they had knowledge of the complaint and did nothing to remedy the matter. Lehmann, supra, 132 N.J. at 622.
Finally, we discern no error in the trial court's charge to the jury. Defendant's arguments as to this issue lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Text Box
 
 
Affirmed.
 
Footnote: 1 Although not an issue here, we note that generally an employer is not liable for harassing conduct by co-workers because employers normally do not vest coworkers with any authority that might be used to harass another employee. Entrot v. BASF Corp., 359 N.J. Super. 162, 172 (App. Div. 2003). "Consequently, when a coworker engages in harassing conduct, the employer is liable only if 'management-level employees knew, or in the exercise of reasonable care should have known, about the campaign of harassment.'" Heitzman v. Monmouth County, 321 N.J. Super. 133, 146 (App. Div. 1999) (quoting Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir. 1986)).

A-