MARY LONDONO v. THE CITY OF ELIZABETH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1125-09T2

MARY LONDONO,

Plaintiff-Appellant,

v.

THE CITY OF ELIZABETH,

Defendant,

and

ROMAN A. MONTES,

Defendant-Respondent.

September 17, 2010

 

Submitted September 7, 2010 - Decided

 

Before Judges Grall and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-41-08.

 

Schiffman, Abraham, Kaufman & Ritter, P.C., attorneys for appellant (Kristen M. Welsh, on the brief).

 

Palumbo & Renaud, attorneys for respondent (Robert F. Renaud and Catherine M. DeAppolonio, on the brief).

 

PER CURIAM

Plaintiff Mary Londono appeals the dismissal of her complaint against defendant Roman A. Montes pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Londono alleged that from 2003 to 2006, while she was employed as a City of Elizabeth Municipal Court clerk, Montes, then the Elizabeth Municipal Court judge, sexually harassed her. We affirm in part and reverse in part.

Londono asserts that on one occasion she was punching in her time card to clock in to work when Montes struck her buttocks with some papers he had in his hand. On another occasion, Montes threw rubber bands at her buttocks while she was discussing a case with the court administrator. On a third occasion, Montes grabbed scraps of paper from Londono's pant leg. She also claimed he spoke to her in an unsolicited, derogatory manner about her choice of men and about the style of underwear she wore. Further, when Londono was interviewed for the position of deputy court administrator, Montes questioned whether others would be able to understand her because of her accent.

In his application for summary judgment, Montes contended that Londono's LAD claims are sustainable only against the employer or against supervisors who "aided and abetted" the wrongful conduct of an employee resulting in a hostile workplace. See N.J.S.A. 10:5-12(e). Since he is not included in either category, Londono had no cause of action against him.

The motion court agreed. Because Montes was neither the employer, nor an aider and abettor, Londono's claim had no basis in LAD. The motion court further found that even though Londono contended, as she does on appeal, that she can advance a "viable claim of 'intentional tort' against [] Montes," that claim did not survive summary judgment. The intentional tort Londono raised in the sixth count of her complaint was based solely on the facts set forth in prior counts, all having been pled in furtherance of LAD claims for sexual harassment or "ethnic origin" harassment and discrimination.

Londono continues to assert, as she did before the motion judge, that the direct wrongdoer should not enjoy protection not afforded to a mere aider and abettor. Londono also reiterates that she should be entitled to proceed with her claims against Montes, the actual wrongdoer, as to do otherwise would be inequitable.

Summary judgment is granted where "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." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995); Carlson v. City of Hackensack, 410 N.J. Super. 491, 494-95 (App. Div. 2009). The question is legal, not factual. Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2010). On review we apply the same standard that governs trial courts when issuing summary judgment orders. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). The question we must answer is whether the evidence "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 motion court relied upon language contained in Cicchetti v. Morris County Sheriff's Office, 194 N.J. 563 (2008), and Leang v. Jersey City Bd. of Educ., 198 N.J. 557 (2009), in support of its award of summary judgment to defendant as to her LAD claims. Specifically, the Court in Cicchetti stated that the "individual liability of a supervisor for acts of discrimination or for creating or maintaining a hostile environment can only arise through the 'aiding and abetting' mechanism that applies to 'any person.'" Cicchetti, supra, 194 N.J. at 594 (quoting N.J.S.A. 10:5-12e). That proposition was most recently reiterated in Leang where the Court specified that the "[p]laintiff's failure to assert facts supporting an aiding and abetting theory is vital to her cause of action." Leang, supra, 198 N.J. at 576-77 (citing Tarr v. Ciasulli, 181 N.J. 70, 83-84 (2004)). Clearly, Montes was not the employer. Equally clearly, he was not an aider and abettor. Hence, we agree with the motion judge that as a matter of law, Londono cannot prevail on her LAD cause of action.

Londono's assertion that the dismissal of the LAD claims does not require the dismissal of her allegations of intentional tort is a different matter. Under the Second Restatement, liability for battery attaches when there is (1) an intention to cause harmful or offensive contact, and (2) that contact results without consent. Restatement (Second) of Torts 13, 18 (1965). Thus, Londono's allegations of wrongful touching may, if proven, establish liability.

Moreover, N.J.S.A. 10:5-27 states that "[n]othing herein shall bar, exclude or otherwise affect any right of action, civil or criminal, which may exist independently . . . ." Such causes of action survive where "in addition to or aside from [rights] sought to be protected in the LAD action." Shaner v. Horizon Bancorp., 116 N.J. 433, 454 (1989). We have previously held that a battery action survives a LAD sexual harassment claim. Wilson v. Parisi, 268 N.J. Super. 213, 219 (App. Div. 1993) (finding that whether a plaintiff can demonstrate sexual harassment under LAD does not affect the right to pursue assault and battery claims); see also Caldwell v. KFC Corp., 958 F. Supp. 962, 970 (D.N.J. 1997) (concluding that an offensive touching claim was not barred). Therefore, Londono's intentional tort claim should not be barred because it is grounded in an intentional tort independent of the discrimination claims.

Affirmed as to the grant of summary judgment on Londono's LAD claims; reversed as to her allegations of intentional tort.