DONNA L. GIOVANETTI v. ICI AMERICAS, INC. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5707-03T25707-03T2

DONNA L. GIOVANETTI,

Plaintiff-Appellant,

v.

ICI AMERICAS, INC. and

JIM MCCARTY,

Defendants-Respondents.

__________________________________________________________

 

Argued October 12, 2005 - Decided

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, L-0743-01.

Gary F. Piserchia argued the case for appellant

(Parker, McCay & Criscuolo, attorneys; Mr.

Piserchia, on the brief).

Jill E. Jachera argued the cause for respondent

(Morgan, Lewis & Bockius, attorneys; Ms. Jachera

and Eric S. Lasky, on the brief).

PER CURIAM

Plaintiff Donna L. Giovanetti appeals from two separate orders entered by different judges on October 8, 2003, and May 5, 2004. The order of October 8, 2003, granted partial summary judgment to ICI Americas Inc. (ICI) and James McCarty on plaintiff's sexual harassment, breach of contract, emotional distress, and related claims based on her employment with ICI Polyurethanes in New Jersey. The order of May 5, 2004, granted summary judgment to ICI on plaintiff's remaining disability discrimination and failure to accommodate claims that arose out of her employment with and discharge from ICI General Chemicals Division in Wilmington, Delaware. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.

The critical facts are not in dispute. Plaintiff began her employment as a full-time employee with ICI Polyurethanes in New Jersey in 1996. In her complaint, plaintiff alleged that while she was working in New Jersey, her supervisor, Jim McCarty, had sexually harassed her. On September 1, 1998, plaintiff began working for a separate business unit of ICI in Wilmington, Delaware, and she had no further contact with McCarty. Plaintiff also agreed, during her deposition, that she had not been sexually harassed after she began working in Delaware.

Q. Do you think you were subject to sexual harassment while you worked in Delaware?

A. No.

Q. Do you think you were subject to any other form of harassment while you worked in Delaware?

A. Not harassment.

Q. Do you think you were subject to any form of discrimination while you were in Delaware?

A. No.

Q. Do you think you were subject to any form of unfair treatment while you were in Delaware?

A. Yes.

Q. Tell me about that.

A. Because once I got -- the information from the ADA about when you have ADD or when you have any kind of mental problems, that you're to discuss it with your manager and that you're to work together.

And I felt that didn't happen.

So that would be discrimination too . . . . That would be discrimination against the ADD and the mental problems that I was going through at the time, because it wasn't working along with me . . . .

In a written decision attached to the order of October 8, 2003, Judge Bookbinder noted that plaintiff's complaint was not filed until March 8, 2001, and he found that plaintiff's sexual harassment, breach of contract, emotional distress, and related claims were barred by the two-year statute of limitations. Judge Bookbinder also considered but rejected plaintiff's continuing violation theory.

Here, plaintiff, Ms. Giovanetti, has stated that defendant Mr. McCarty caused the sexual harassment and intentional infliction of emotional distress. Plaintiff argues that the wrongful termination is a continuing violation. Plaintiff . . . asserts that the connection is supported by the fact that the sexual harassment caused the initial psychiatric problems, which worsened to a psychiatric disability which plaintiff alleges was used to justify her dismissal. . . . Plaintiff . . . stated at [her] deposition that her contact with Mr. McCarty ended in September 1998 when she left ICI in New Jersey. . . . Turning now to the three-part test from Hall [v. St. Joseph's Hosp., 343 N.J. Super. 88 (App. Div. 2001), certif. denied, 171 N.J. 336 (2002)]. The second factor is the frequency. There was over a year between the sexual harassment and the intentional infliction of emotional distress and the alleged wrongful termination. . . . Finally, the sexual harassment and intentional infliction of emotional distress had a high degree of permanence. Plaintiff should have known that the alleged sexual harassment and intentional infliction of emotional distress triggered an assertion of rights under LAD. See Hall, 343 N.J. Super. at 104-05. Plaintiff . . . has not met any of the factors needed to result in a finding that there was a continuing violation in this case.

Plaintiff . . . argues that the continuing violation applies in this case because the courts have found that in hostile work environment claims the court must consider the cumulative effect of various incidents. . . . Plaintiff . . . asserts that the e-mails sent by Mr. McCarty to the Delaware office demonstrate a continuing violation because they are part of the alleged cover up of the sexual harassment claim. . . . The e-mails were sent to Ms. Irene Monley, the ICI-Delaware Human Resource[s] Director. . . . The subject matter of the e-mails relate[s] to [plaintiff's] performance review, which plaintiff argues demonstrates a cover up of the sexual harassment that Mr. McCarty knew was improper. . . . Plaintiff's argument however, fails to apply the test of continuing violation theory as set forth in Hall, in Shepard v. Hunterdon Dev. Ctr., [ 336 N.J. Super. 395 (App. Div. 2001), aff'd in part, rev'd in part, 174 N.J. 1 (2002)] and in Mancini [v. Twp. of Teaneck, 349 N.J. Super. 527 (App. Div. 2002)] regarding frequency. Plaintiff . . . asserts that there were only 2 e-mails sent by Mr. McCarty, which were sent May 27, 1999 and June 1, 1999. In Wilson v. Wal-Mart Stores, 158 N.J. 263, 273 (1999), the Court found that in order to constitute a continuing violation, the acts must be continuous on an almost daily basis. This is not what occurred in this case, there were two e-mails sent to persons other than Ms. Giovanetti and no evidence of any other contact between Mr. McCarty and Ms. Giovanetti.

We agree with this analysis. As noted by Judge Bookbinder, the two e-mails sent by Jim McCarty to Irene H. Monley, the ICI-Delaware Human Resources Director (one dated May 27, 1999, and the other dated June 1, 1999) are insufficient to trigger the continuing violation doctrine, and there was no other contact, direct or indirect, between plaintiff and her alleged harasser after plaintiff commenced her employment in Delaware on September 1, 1998. Thus, the trial court correctly determined that plaintiff's claims resulting from the employment in New Jersey are time-barred by the two-year statute of limitations.

We are also convinced that the record amply supports the order of May 5, 2004, which dismissed plaintiff's remaining disability discrimination and failure to accommodate claim. Judge Covie-Leese determined that the alleged failures "of the Delaware employees in a company located in Delaware should be governed by Delaware [l]aw."

The parties agree that since this action was filed in New Jersey, its choice of law rules apply. Gantes v. Kason Corp., 145 N.J. [478,] 484 (1996). The parties also agree that the court employs a "governmental-interest" analysis in deciding the choice of law question. Veazey v. Doremus, 103 N.J. 244, 247 (1986). . . . The threshold analysis requires the court to determine if there is a conflict between the relevant laws of Delaware and New Jersey. Veazey, 103 N.J. at 248. Here, it is apparent that there is a conflict between Delaware and New Jersey law. The New Jersey LAD does not require a plaintiff to exhaust administrative remedies before bringing suit, while Delaware's Fair Employment Practices Act, 19 Del. C. 711(d) (1953), requires that a plaintiff exhaust administrative remedies through the Delaware Department of Labor.

. . . .

In this case, the court is satisfied that Delaware law is applicable and that plaintiff's claims are barred as a matter of law due to a failure to exhaust administrative remedies. The Delaware Discrimination in Employment statute requires that she file a charge with the Delaware Department of Labor "within 90 days after the alleged unlawful employment practice or 120 days after discovery thereof, whichever is the later." 19 Del. C. 711(d). Plaintiff has admitted that she never filed a grievance with the Delaware Department of Labor and, as such, her remaining claims are barred.

We agree that Delaware has the most qualitatively significant contacts with this litigation. "It is well-established in New Jersey that claims of a New Jersey resident relating to [her] out-of-state employment, are governed by the law of the state in which the New Jersey resident is employed." Brunner v. AlliedSignal, Inc., 198 F.R.D. 612, 614 (D.N.J. 2001) (internal quotation marks omitted). We also agree that it would be unfair to require defendant to be bound by "differing state laws based upon the individual residences of its employee[s] . . . ." See Buccilli v. Timby, Brown & Timby, 283 N.J. Super. 6, 11 (App. Div. 1995) ("[M]aking the rights of each of several co-workers dependant on his or her state of residence would be an entirely unreasonable result").

The orders under review are affirmed.

 

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A-5707-03T2

June 5, 2006