AOREL OLDJA v. ENTEX IT SERVICES, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3994-04T13994-04T1

AOREL OLDJA,

Plaintiff-Appellant,

v.

ENTEX IT SERVICES, INC.,

SIEMANS BUSINESS SERVICES,

INC., DEAN CARAKATSANIS and

TIMOTHY SEELY,

Defendants-Respondents.

_________________________________

 

Argued January 18, 2006 - Decided February 3, 2006

Before Judges Collester, Lisa and S.L. Reisner.

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

L-4334-02.

Glen D. Savits argued the cause for appellant (Green & Savits, attorneys; Mr. Savits, of counsel; Stephanie D. Gironda,

on the brief).

Jean L. Schmidt argued the cause for respondents (Brown, Raysman, Millstein Felder & Steiner, attorneys; Ms. Schmidt,

of counsel and on the brief).

PER CURIAM

Plaintiff, Aorel Oldja, appeals from a trial court order granting summary judgment in favor of defendants, Entex IT Services, Inc., Siemans Business Services, Inc., Dean Carakatsanis and Timothy Seely.

Plaintiff claimed he was subjected to retaliation and was constructively discharged from his job when his supervisors would not let him work the hours he requested. He also claimed that he was subjected to hostile work environment harassment based on his religion when his co-workers emailed him pornography and looked at pornography on their computers at work. Judge Davidson concluded that all of his claims were barred by the statute of limitations and that the facts, viewed in the light most favorable to plaintiff, did not establish a claim of a hostile work environment or constructive discharge.

On this appeal, plaintiff makes the following arguments:

POINT I: THE TRIAL JUDGE AND THE PARTIES AGREED AS TO THE STANDARD FOR ESTABLISHING RELIGIOUS BASED HARASSMENT.

POINT II: THE LAW DIVISION JUDGE ERRED IN CONCLUDING THAT PLAINTIFF COULD NOT ESTABLISH A PRIMA FACIE CASE OF HOSTILE WORK ENVIRONMENT HARRASSMENT BASED ON RELIGION.

A. The Trial Judge Incorrectly Found That There Were No Facts to Indicate That The Harassment of Plaintiff Would Not Have Occurred But For His Religion.

B. The Trial Judge Wrongly Held That Defendants' Conduct Was Not Pervasive.

C. The Trial Judge Erred In Ruling As A Matter Of Law that The Clackers Video Is Not Severe Conduct Under Lehmann.

D. The Trial Judge Neglected To Address Whether The Conditions Of Work Were Altered And The Environment Was Hostile And Abusive For A Fundamental Christian.

POINT III: THE TRIAL JUDGE CORRECTLY DETERMINED THAT PLAINTIFF ESTABLISHED AN ISSUE OF FACT REGARDING RETALIATION.

POINT IV: THE TRIAL JUDGE MISTAKENLY HELD THAT PLAINTIFF'S CLAIMS ARE BARRED BY A STATUTE OF LIMITATIONS DEFENSE.

POINT V: THE TRIAL JUDGE ERRONEOUSLY HELD THAT THE PLAINTIFF WAS NOT CONSTRUCTIVELY DISCHARGED.

Having reviewed the record, we affirm the trial court's decision to dismiss the complaint on statute of limitations grounds, because the last incident of alleged offensive conduct occurred on April 20, 2000, plaintiff did not establish constructive discharge, and plaintiff's complaint was not filed until May 1, 2002. In light of our conclusion that his complaint was time-barred, we find it unnecessary to decide whether plaintiff presented sufficient proof to support his hostile work environment and retaliation claims.

Our review of a trial court's decision on a summary judgment motion is plenary. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review the record using the same standard employed by the trial court. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Viewed in the light most favorable to plaintiff, the evidence he presented would support the following factual findings.

Entex provides computer consulting and other computer-related services to corporate clients. Plaintiff began working for Entex in 1997 as a network integration manager. He eventually became a systems consultant or a senior systems consultant. In October 1999, at his request, plaintiff was assigned to work on the company's Hoffman LaRoche account.

Plaintiff is a Fundamentalist Christian who is very involved with church activities and is offended by pornography and foul language. When he worked for Entex, he preferred to work four days a week in order to have additional "down time," and his supervisor at his prior assignment had permitted him to work this schedule. When he was transferred into the new position, he explained to Timothy Seely, the Entex manager in charge of the Hoffman LaRoche account, that he wanted to work four days a week, instead of the customary five, and that his religious beliefs precluded him from working on Sundays. This required an accommodation, because the Entex computer consultants on this project worked five days a week, and took turns covering computer-related emergencies seven days a week. Plaintiff was not required to cover emergencies on Sundays; instead his immediate supervisor, Dean Carakatsanis, carried the pager when it would otherwise have been plaintiff's turn to do so. Plaintiff's supervisors also initially agreed that he could work every other Friday. Eventually, they agreed he would not work on Fridays but would be available in case of an emergency.

During his employment on the Hoffman LaRoche account, there were also repeated disputes over the number of hours plaintiff would work on the four days he was at the office. He insisted that he wanted to work eight or nine hours per day, for forty hours pay, while his supervisors wanted him to work ten hours a day.

After he started the assignment, plaintiff learned that he would be expected to take a turn handling an emergency rotation on Wednesday nights. He advised Seely that he did not want to handle the emergency rotation on Wednesday nights because he worked at his church that night. Seely was not willing to accommodate this request. He explained to plaintiff that the other employees also had personal matters to attend to after hours and it was not fair to them to excuse plaintiff from the rotation. Plaintiff was offended when Seely referred to these outside activities as "hobbies," construing the statement as implying that Seely did not respect plaintiff's religious activities.

Plaintiff's claim of a hostile work environment is based on a limited number of instances to which he testified at his deposition. Soon after plaintiff was transferred to the Hoffman LaRoche account, a co-worker named Brian Warner, who shared his cubicle, told plaintiff that he apologized in advance for anything offensive he might say. Plaintiff testified that Warner cursed a great deal, and criticized Entex, both of which plaintiff found offensive. Plaintiff also testified that on several occasions, at work meetings, Warner made loud comments about having to come in on Sundays to get the work done. Plaintiff assumed that Warner was implicitly criticizing him for not working on Sundays. Plaintiff complained about Warner, and was transferred to a different work space.

Plaintiff also testified that he heard a fellow worker named Murphy swearing frequently. Although it offended him, he did not complain to his supervisors about Murphy's use of foul language.

In December 1999, plaintiff walked into a cubicle occupied by a co-worker named Edward O'Connor and saw a pornographic picture on O'Connor's computer screen. He was offended and walked out of the cubicle.

On February 7, 2000, Carakatsanis sent plaintiff an email with the subject line "Clackers," which he copied to a number of other male employees with an attachment titled "ttdance." The video showed a large-breasted woman dancing topless. Carakatsanis then sent plaintiff a follow-up email the next day apologizing for sending him the email. On one other occasion, Carakatsanis sent plaintiff an email posing questions about the benefits humankind had received from Christ's death.

On February 24, 2000, a co-worker, Jimmy Krauss, sent plaintiff and his brother an email with an attachment containing scenes from a severe motorcycle accident. The email contained a cover note that the recipients might not want to open the attachment because it was "gross." Plaintiff opened it anyway, and was offended.

On April 6, 2000, Carakatsanis sent Seely and others, including plaintiff, an email with a picture of a drunken sleeping man who had urinated on himself. On April 11, a co-worker, Andrei Vassiliev, sent Carakatsanis, plaintiff and several other employees an email attachment with a picture of a monument to Karl Marx. The back of the monument was shaped like a penis. On April 17, another co-worker, Gerry Diagelakis, sent plaintiff, Carakatsanis, and other employees an email entitled "I tought I taw a puddy tat." The attachment showed a child being attacked by a cat. Plaintiff also testified that on an unspecified date in April, he walked into a cubicle occupied by a fellow employee and saw that this employee was viewing pornography on his computer screen. He also testified that on or about April 20, 2000, he heard a computer audio clip being played in the office that contained the words "f. . . my wife."

On April 20, 2000, plaintiff spoke to and emailed Seely in general terms about the pornography he was being sent and claimed there were "ethical infringements" being imposed upon on him at work. He asserted that pornography had been sent to him through email and that he had seen pornography on his co-workers' computer screens while walking through open areas or past cubicles. He also said he was subjected to "unethical audio outputs" coming from notebook computer speakers of his co-workers.

In response to plaintiff's complaint, Seely sent an email to the entire Entex staff reminding them that they were to use the email system exclusively for work, and were to refrain from unprofessional behavior in the workplace. He also met with the Entex managers and reminded them that Entex had a "zero tolerance policy" concerning pornography in the workplace and that he expected them to enforce the policy. Seely also sent plaintiff a follow-up email thanking him for bringing the problem to his attention and assuring him that the situation was being addressed. Plaintiff conceded there were no more offensive incidents after April 20, 2000.

Plaintiff also claimed in his deposition that he was harassed by being taken off the team to which he was originally assigned; he also alleged he was not provided with things that were necessary for him to do his job such as keys to an office, an access card, phone extension and voicemail. Additionally, he claimed he was instructed to record his work hours as eight to five, five days a week even though he was only working four days a week. None of these incidents occurred after April 20, 2000.

A few days after his meeting with Seely, plaintiff had another dispute with his supervisors over his work hours. On April 25, 2000, Seely sent an email to Carakatsanis and plaintiff, disagreeing with an email plaintiff had sent "confirming" that he was approved to start work between 8am and 9am and leave between 5pm and 6pm. Seely directed plaintiff that if he wanted to work a five day work week, these hours would be approved, but if he wanted to work a four day week, he had to work longer hours on those four days. Seely also told plaintiff that his hours would be "monitored." Seely testified that he decided to monitor plaintiff's hours because there were complaints that plaintiff was absent from his work station when he was supposed to be there.

Plaintiff also testified that during the April 20 meeting, Seely told him that he would move him "off site." Some time after this exchange, Carakatsanis offered plaintiff a new job assignment that he told plaintiff he knew would not be acceptable because it involved an extensive amount of traveling and work on a program with which plaintiff was unfamiliar. Plaintiff refused the new assignment. In his deposition, plaintiff conceded that he did not see or interact with Seely or Carakatsanis during the last few days of April.

On May 1, 2000, plaintiff suffered a nervous breakdown at work and went home. He did not return. Although the company's policy permitted employees to take four months of medical leave, plaintiff was allowed a total of seven and a half months of leave. He was terminated from his employment in January 2001 after he continued to be unable to return to work. Plaintiff's motion papers did not include any medical evidence that his psychiatric condition was caused by incidents that occurred at work.

II

The parties agree that claims under the Law against Discrimination, N.J.S.A. 10:5-1 to -49, are governed by a two-year statute of limitations. N.J.S.A. 2A:14-2; Montells v. Haynes, 133 N.J. 282, 292-295 (1993). There is also no dispute on this record that plaintiff's last contact with his supervisors before he left work on May 1, 2000, occurred on April 25, 2000, when Seely sent plaintiff an email confirming that he would be required to work forty hours a week. There is no legally competent evidence of any acts of reprisal, harassment or hostile work environment after that date.

We find no merit in plaintiff's claim that he suffered a continuing violation up to and including his last day of work. Our courts have recognized that a hostile environment generally consists of a series of offensive acts, and a claim based on a hostile work environment will be timely so long as at least "the last act of continuous harassment" occurs within the two year time period. Wilson v. Wal-Mart Stores, 158 N.J. 263, 274 (1998). See also Caggiano v. Fontoura, 354 N.J. Super. 111, 132 (App. Div. 2002).

There is no dispute that plaintiff did not tell his managers that he found the workplace pornography offensive until April 20, 2000, when he complained to Seely. Seely responded immediately to plaintiff's complaint by instructing all the project managers to enforce the company's "zero tolerance" policy for pornography in the workplace, and by sending out an email reminding all employees of their obligation to comply with the company's policy. Plaintiff conceded that there were no more offensive incidents after he complained to Seely on April 20. Consequently, we find no evidence to support a claim that there was a continuing violation with respect to pornography or other conduct offensive to plaintiff's religion after April 20, 2000.

Plaintiff's reliance on Caggiano, supra, is misplaced. Caggiano involved repeated acts of horrendous sexual harassment, in which one of the plaintiff's co-workers repeatedly exposed his genitals to her while mocking her sexual preference with obscene remarks. Her immediate supervisor not only took no action when she complained about his conduct, but he also made blatantly discriminatory comments to her. Id. at 118-20. Under these circumstances, we held that the mere presence of the co-worker in the work environment "may be enough to support a continuing violation based upon prior conduct even though plaintiff does not claim any specific act by him [within the limitations period]." Id. at 133. Likewise we held that if the supervisor "retained any supervisory responsibility in the department. . . his failure to take action to stop the conduct, to discipline the perpetrators, and to protect plaintiff may bring his actions/inactions within the statute of limitations." Ibid.

This case is a far cry from Caggiano. Even assuming that the several incidents of workplace pornography and insensitive comments were sufficient to constitute a hostile work environment based on plaintiff's religion, they would not be sufficient to extend the statute of limitations based on the mere presence in the workplace of Carakatsanis or Seely. And more significantly, on April 20, 2000, Seely responded immediately to plaintiff's complaint, and the offensive conduct stopped.

Finally, we find no basis for a claim of constructive discharge. First, plaintiff concedes that there were no more offensive incidents after April 20, 2000. And even if we accept plaintiff's theory that Seely's demand that he work forty hours per week instead of thirty-six hours was a reprisal, such a requirement would not constitute a constructive discharge. An employee has an obligation to do what is "necessary and reasonable" to remain employed. Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 276 (App. Div. 1996); Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 28 (2002). Therefore, to constitute constructive discharge, the employer's conduct must be "so intolerable that a reasonable person would be forced to resign rather than continue to endure it." Shepherd, supra, 174 N.J. at 28; Muench v. Haddon, 255 N.J. Super. 288, 302 (App. Div. 1992). An employer's demand that an employee perform an additional four hours of paid work per week does not rise to the level of constructive discharge. See Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 166-67 (App. Div. 2005). (Noting that "a constructive discharge claim requires even more proof of egregious circumstances than that required to establish a hostile work environment," we concluded that failure to pay overtime does not constitute constructive discharge.)

 
Affirmed.

Siemans Business Services, Inc. was the successor corporation to Entex.

Plaintiff's brother, Petar Oldja, also worked for Entex.

Plaintiff conceded that he has no memory of encountering either of his supervisors in the workplace after April 25, 2000.

(continued)

(continued)

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A-3994-04T1

February 3, 2006