RAFAELA FERNANDEZ v. PATHMARK STORES, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5843-04T15843-04T1

RAFAELA FERNANDEZ,

Plaintiff-Appellant,

v.

PATHMARK STORES, INC.,

Defendant-Respondent,

and

JESUS FLORES,

Defendant.

__________________________________

 

Argued September 11, 2006 - Decided September 27, 2006

Before Judges Lintner, S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, L-89-03.

Fred Shahrooz Scampato argued the cause for appellant.

Jennine DiSomma argued the cause for respondent (Saiber Schlesinger Satz & Goldstein, attorneys; Ms. DiSomma, on the brief).

PER CURIAM

This is an appeal from the grant of summary judgment dismissing the first count claim of plaintiff, Rafaela Fernandez, against her employer, Pathmark Stores Incorporated (Pathmark), for failing to adequately investigate and remedy sexual harassment allegedly perpetrated by defendant Jesus Flores, a fellow employee with whom she had had an intimate relationship. Pathmark filed a motion for summary judgment, arguing that plaintiff had failed to establish a prima facie case because (1) Flores' actions were not the result of plaintiff's gender, (2) he was not a supervisory employee, (3) his inappropriate conduct toward plaintiff was not severe or pervasive, and (4) it investigated plaintiff's claim and took appropriate action. Following the motion judge's grant of Pathmark's motion, plaintiff voluntarily dismissed her claims against Flores, rendering the order dismissing her complaint against Pathmark a final order. Plaintiff appeals and we affirm.

Because this appeal arises from the grant of summary judgment, "we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff[]." Strawn v. Canuso, 140 N.J. 43, 48 (1995). Plaintiff began working part-time in the bakery department of the Pathmark supermarket in Linden, New Jersey, in August 1997. Flores worked in the meat department in the same store. On a summer afternoon in 1998, plaintiff and Flores became intimately involved when they went together to the Loop Inn, a motel located on Routes 1 and 9. Although plaintiff denied having sex with Flores, she testified that they both removed their clothes and got into a hot tub and kissed one another. Plaintiff ended the relationship about a year later, in May or June 1999.

According to plaintiff's complaint, in July 1999, while she was leaving work, Flores followed her to her car and tried to grab her keys after she was inside the car, telling her "You're not leaving." He then slapped her in the face and repeatedly called her a bitch. Plaintiff reported the incident to the assistant store manager, Mike Valone, who in turn told the store manager, Robert Conn. After investigating plaintiff's complaint, Valone told Flores to stay away from plaintiff and warned, "If you don't do it, I'll repeat, you [are] going to lose your job because . . . Pathmark policy doesn't allow harassment and all those things." Valone also told Flores he would talk to plaintiff and tell her to stay away from the meat shop where Flores worked.

In September 1999, Flores leaned on plaintiff's car and screamed at her for avoiding him at work. A few months later, when Flores saw plaintiff speaking with another employee, he accused her of having sex with that employee and spilled a can of soda on her. In December 2000, Flores followed plaintiff to the bathroom and grabbed her on the shoulder. Later that month, Flores threatened to tell plaintiff's husband they were having an affair, and he later made good on his threat. Flores also stopped plaintiff in the parking lot in December 2000 to tell her he loved her.

The final incident occurred on January 8, 2001, when Flores spoke to plaintiff at the bakery department where she worked and grabbed her by her left wrist. Plaintiff then complained for a second time and notified Robert Conn. Conn contacted Michael Chironno, the Human Resources Manager, who immediately investigated plaintiff's complaint. As a result, on or about January 15, 2001, Flores was transferred to a Pathmark store in Garwood. Flores would also send messages to plaintiff through other employees, Ada Negron and Jessica Caceres, relating that he was "crazy in love" with plaintiff.

On September 29, 2001, Pathmark transferred plaintiff to its Woodbridge store because a coworker lodged a hostile work environment complaint against her, alleging that she talked to another woman's husband and touched an assistant manager to wish him a happy birthday. Plaintiff did not appear for work at that store, but submitted doctor's notes indicating that she was unable to work because of depression and anxiety. She was out on disability leave for over a year. Plaintiff attended psychotherapy for a period of two years beginning in 2003. The therapist, Dr. Karen Sciaraffa, diagnosed her with posttraumatic stress disorder and major depressive disorder. Another psychologist, Dr. Steven A. Kopel, evaluated plaintiff in 2005 and agreed with Dr. Sciaraffa's assessment.

At the time, Pathmark had a strict sexual harassment policy, which instructed all employees to immediately report incidents of harassment to their supervisors, a manager, or the Human Resource Department, or call a hotline established for such complaints. Its sexual harassment policy is printed in the employee manual, distributed twice yearly with employee paychecks, and posted throughout the store on employee bulletin boards. It provides:

TO ALL ASSOCIATES

It is the policy of the Company to provide associates a workplace free from any manner or form of sexual harassment. Sexual harassment in any manner or form is expressly prohibited. All claims of sexual harassment are investigated by the appropriate human resources representative and corrective action taken as warranted by the results of the investigation which may include disciplinary action, up to and including immediate separation.

POLICY STATEMENT

Sexual harassment of . . . coworkers will not be tolerated. Harassment includes all unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:

* It is a term or condition of employment;

* It is used in making employment decisions; or

*It interferes with work performance or creates an intimidating, hostile or offensive work environment.

Sexual harassment also includes verbal or physical harassing conduct because of gender.

You may not wear, display or distribute material (jokes, pictures, calendars, articles, T-shirts, etc.) or engage in conduct which would be considered offensive.

The Company will not retaliate against any person for reporting a violation of this policy, opposing an unlawful employment practice, filing any action or for providing information in connection with any related inquiry.

You should report any sexual harassment problems or complaints to your manager, human resource representative or call the hotline number . . . . Refer to posters located in all facilities for the name and phone number of your human resources representative.

The 800 number is answered in the Associate Relations office in Carteret. All allegations of sexual harassment are investigated and violations will not be tolerated.

Help us ensure a harassment free environment at Pathmark. Behave in a professional, business-like manner. If you believe there has been a violation of this policy, report it as soon as possible.

The applicable principles are well settled. The New Jersey Law Against Discrimination (LAD) was "enacted to protect not only the civil rights of individual aggrieved employees but also to protect the public's strong interest in a discrimination-free workplace." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 600 (1993). Guided by that purpose, the Legislature found that "[d]iscrimination based on gender is 'peculiarly repugnant in a society which prides itself on judging each individual by his or her merits.'" Ibid. (quoting Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 96 (1990)). Specifically, the LAD prohibits discrimination based on sex and provides:

It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

a. For an employer, because of . . . sex

. . . of any individual . . . to refuse to hire or employ or to bar or to discharge

. . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment . . . .

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

Although the statute and the legislative history is "silent on the subject of sexual harassment," our courts have "frequently looked to federal precedent governing Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e to 2000e-17 ('Title VII'), as a 'key source of interpretive authority.'" Lehmann, supra, 132 N.J. at 600 (quoting Grigoletti, supra, 118 N.J. at 97). Under Title VII and LAD, sexual harassment is a form of sex discrimination. Id. at 601

Sexual harassment cases are generally divided into two categories: quid pro quo sexual harassment, which "occurs when an employer attempts to make an employee's submission to sexual demands a condition of his or her employment," and hostile work environment sexual harassment, which "occurs when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile." Ibid.

"To state a claim for hostile work environment sexual harassment, a female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment." Id. at 603. The test is broken down into four prongs: "the complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Id. at 603-04.

Under R. 4:46-2(c), a motion for summary judgment will be granted when "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." Although credibility determinations are made by a jury, "when the evidence 'is so one-sided that one party must prevail as a matter of law,'" the grant of summary judgment is appropriate. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

On appeal, plaintiff urges that Flores' status as a fellow non-supervisory employee does not shield Pathmark from liability for his sexual harassment conduct. She argues that Valone failed to investigate the July 1999 incident further by referring the matter to human resources, pursuant to Pathmark's sexual harassment policy. She contends that failure opens Pathmark to liability for not taking reasonable steps to prevent and promptly correct Flores' sexual harassing behavior, thus creating a hostile workplace environment between her first and second complaint.

We first address whether Flores' conduct amounted to sexual harassment. Relying in part on Reyes v. McDonald Pontiac-GMC Truck, Inc., 997 F. Supp. 614, 618 (D.N.J. 1998), the judge found that plaintiff failed to satisfy the first prong of Lehmann by showing that Flores' comments and conduct toward plaintiff were related to her job performance or competency based upon her gender. Plaintiff argues that she does not "forfeit" her right to legal protection against a hostile environment claim by participating in consensual sex with an employee. To be sure, sexual harassment can occur following a consensual relationship so long as the harassment is motivated by the victim's gender, not the failed relationship. See Succar v. Dade County Sch. Bd., 229 F.3d 1343, 1345 (11th Cir. 2000). For example, in Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001), the plaintiff and the defendant, who was plaintiff's supervisor, ended a consensual relationship. After the relationship ended, defendant would brush up against her at work in a sexual way that made plaintiff uncomfortable. The court in Lipphardt found that sexual harassment had occurred, noting that the proofs included the defendant's attempted brushing up against the plaintiff on several occasions in an inappropriate way following the end of their consensual relationship. Id. at 1189.

We agree with the judge's analysis. Flores' initial behavior, although inappropriate, was directed by his frustration that his romantic relationship with plaintiff had failed. It was motivated by the failure of the relationship, not plaintiff's gender. Unlike the facts in Lipphardt, Flores was not a supervisor, his aggressive acts and abusive language were not gender specific, nor did they involve sexual conduct. Rather, Flores' conduct was associated with the frustration of either a man or a woman following the break-up of a close personal relationship. We emphasize further that, because Flores was not plaintiff's supervisor, there is no reasonable basis in this record to infer that his offensive conduct was work related or suggestive of a quid pro quo as it otherwise might have been viewed if he were plaintiff's supervisor.

The judge also found that plaintiff failed to meet the second Lehmann prong by establishing that Flores' conduct was so severe or pervasive as to cause a reasonable woman to believe that her work environment had been altered. Analyzing the facts in a light most favorable to plaintiff, the judge noted that of the seven incidents three occurred after working hours and that plaintiff complained "essentially of . . . Flores telling her that he loved her, threatening to tell her husband and grabbing her body on two occasions." Again, we agree. "'[C]onduct must be extreme to amount to a change in the terms and conditions of employment.'" Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2284, 141 L. Ed. 2d 662, 677 (1998)). Although annoying to plaintiff, the relatively few incidences of Flores' aggressive behavior, occurring over approximately eighteen months, did not amount to the severe and pervasive conduct envisioned by the LAD.

Even if we were to believe that the evidence was sufficient to establish that Flores' conduct, when viewed as a whole, amounted to sexual harassment, which we do not, plaintiff's proofs were insufficient to make a case of vicarious liability. Although our courts have held that employers are "strictly liable for equitable relief to remediate any discriminatory hostile [work] environment found in the workplace," claims for compensatory damages are governed by agency principles. Heitzman, supra, 321 N.J. Super. at 144; see also Lehmann, supra, 132 N.J. at 616. Under those principles, "'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.'" Heitzman, supra, 321 N.J. Super. at 144 (quoting Lehmann, supra, 132 N.J. at 619). Even when the supervisor is "'acting outside the scope of his or her employment, the employer will be liable in most cases . . . .'" Id. at 145 (quoting Lehmann, supra, 132 N.J. at 619-20). This is because "the power an employer delegates to a supervisor . . . facilitates the harassing conduct." Ibid.

However, under agency principles, "an employer is not generally liable for harassing conduct by coworkers, '[b]ecause employers do not entrust mere co-employees with any significant authority with which they might harass a victim.'" Ibid. (quoting Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998)). Consequently, an employer is only liable for the harassing conduct of a non-supervisory coworker under a negligence theory when "'management-level employees knew, or in the exercise of reasonable care should have known, about the campaign of harassment.'" Id. at 146 (quoting Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir. 1986)). "[I]t has been recognized that an employer 'is unlikely to know or have reason to know of casual, isolated, and infrequent slurs,'" ibid. (quoting Hunter, supra, 797 F. 2d at 1422), and that "the LAD is not intended to be 'a "general civility" code . . . .'" Id. at 147 (quoting Faragher, supra, 524 U.S. at 788, 118 S. Ct. at 2283-84, 141 L. Ed. 2d at 677).

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor's failure to act. Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270, 141 L. Ed. 633, 655 (1998). An employer, however, may defend against such a claim by showing that it "'(a) . . . exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'" Heitzman, supra, 321 N.J. Super. at 145 n.3 (quoting Burlington Indus., supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. Ed. 2d at 655).

Plaintiff argues that she presented sufficient evidence to establish Pathmark's liability, notwithstanding Flores' status as a non-supervisory employee, because Valone failed to follow Pathmark's policy against sexual harassment by not referring the matter to human resources and took ineffective action in advising Flores to stay away from plaintiff. The judge correctly observed:

"'[E]mployers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the . . . harassment is part of a pattern of harassment that is taking place in the workplace . . . .'"

In the present matter, any harassment on the part of Mr. Flores toward the plaintiff really constituted private communications, many of which took place outside of work hours.

Therefore as to the parking lot incidences, Mr. Flores was not working within the scope of his employment and Pathmark cannot be held vicariously liable for the actions toward the plaintiff.

With respect to the incidences that took place during working hours . . . , Pathmark is still not liable because it would appear that these communications were personal in nature.

In addition, the court finds that those remedies that were afforded to the plaintiff were well known to her, that on two occasions she reported to her employer the problems she was having with Mr. Flores.

On the first occasion, it would appear from the facts established by the depositions taken in this case that the assistant manager in this particular store did take actions that were appropriate and that the plaintiff despite contesting that there was [sic] additional problems subsequent to that time never availed herself of any particular avenues that she was instructed to in both her employee manual and other devices utilized by her employer to further the claim of any sexual harassment.

Finally, when she . . . ultimately did go to human resources in 2001, Pathmark at that point and time took the remedy of transferring the particular person . . . and it would appear that at least at that juncture, there was no additional incident of harassment which would have been relevant to this particular case, especially since plaintiff is now arguing in oral argument today that even though [she] contends Mr. Flores was still making communications through other employees to her, that those were unreported to Pathmark and there was no way that they could have taken any action subsequent to that time because of her failure to report.

Contrary to plaintiff's argument, Pathmark's sexual harassment policy did not require Valone to refer plaintiff's initial complaint to human resources. Moreover, the judge correctly pointed out that the initial July 1999 incident occurred after working hours. Valone's response was immediate and appropriate given the circumstances present. So too was the human resources' response to plaintiff's second complaint. Moreover, liability could not attach to Pathmark because plaintiff did not take full advantage of Pathmark's procedures to prevent the harm allegedly caused and her proofs failed to establish that Pathmark did not exercise reasonable care to prevent Flores' challenged conduct.

At his discovery deposition, Chironno, in response to questions by plaintiff's counsel and over defense's objection, testified that Flores' bothering of plaintiff did create a hostile work environment and was a form of sexual harassment. Relying on Chironno's deposition testimony, plaintiff argues that Pathmark is judicially estopped from taking a contrary position. The doctrine of judicial estoppel was not specifically mentioned at oral argument in the Law Division, nor was it addressed by the judge. Considering the record, however, we conclude that plaintiff's argument is devoid of merit.

"Judicial estoppel operates to bar a party from asserting a position contrary to and inconsistent with one previously asserted." Fineberg v. Fineberg, 309 N.J. Super. 205, 216 (App. Div. 1998); see also State v. Gonzalez, 142 N.J. 618, 632 (1995). The doctrine precludes a party from taking a contrary position where that party's previous concession has been the basis for a court's final determination. Cummings v. Bahr, 295 N.J. Super. 374, 387-88 (App. Div. 1996). "Courts have the right to demand precision from counsel when making applications to the court. A court should not be put in the position of hearing a new and contradictory theory at a second motion for reconsideration." Id. at 388. To do otherwise would permit a party to "play fast and loose" with the court. Id. at 387; see also Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); Infante v. Gottesman, 233 N.J. Super. 310, 318 (App. Div. 1989).

Pathmark has never taken the position that Flores was transferred based upon a determination that his conduct either constituted sexual harassment or created a hostile work environment. Throughout the case, Pathmark has consistently denied plaintiff's contentions that it improperly maintained or permitted a hostile work environment to exist. Moreover, defense counsel correctly objected to the competency of Chironno to give what essentially amounted to a legal opinion. Indeed, even if Pathmark's counsel had not voiced an objection, it would not have been deemed waived. R. 4:16-4(c)(1). Accordingly, we affirm.

 

In the second through fourth counts of her complaint, plaintiff alleged battery against Flores and vicarious liability against Pathmark. In the fifth count, plaintiff alleged that Pathmark allowed Flores to intentionally inflict emotional distress upon her. Plaintiff did not oppose Pathmark's motion to dismiss counts two through four. On appeal, plaintiff does not contest the order for summary judgment insofar as it dismisses the fifth count of her complaint. We, therefore, address only the claim asserted in the first count of plaintiff's complaint.

Herman v. Coastal Corp., 348 N.J. Super. 1, 24-25 (App. Div. 2002) (quoting Blakey v. Cont'l Airlines, Inc., 164 N.J. 38, 62 (2000)).

(continued)

(continued)

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A-5843-04T1

 

September 27, 2006