DORIS COLELLO v. BAYSHORE COMMUNITY HEALTH SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3423-08T13423-08T1

DORIS COLELLO,

Plaintiff-Appellant,

v.

BAYSHORE COMMUNITY

HEALTH SERVICES,

Defendant-Respondent,

and

ARIEL SOLIS, M.D.,

Defendant.

________________________________________________________________

 

Argued April 12, 2010 - Decided

Before Judges Baxter, Alvarez and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3476-05.

Linda Wong argued the cause for appellant (Wong Fleming, attorneys; Ms. Wong, Daniel Fleming and Gregory G. Johnson, on the briefs).

Jedd Mendelson argued the cause for respondent (Littler Mendelson, P.C., attorneys; Mr. Mendelson, on the brief).

PER CURIAM

Plaintiff Doris Colello appeals from a February 6, 2009 Law

Division order that granted summary judgment to defendant Bayshore Community Health Services ("Bayshore" or "the hospital"), thereby dismissing plaintiff's hostile work environment sexual harassment complaint. We agree with plaintiff's contention that the Law Division erred by: 1) finding that the conduct of defendant Ariel Solis, M.D., while "deplorable and disgusting," did not rise to the level of "severe or pervasive" necessary to maintain a cause of action under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; 2) finding that even if Solis's conduct were to be deemed "severe or pervasive," Solis was not an employee of Bayshore and therefore Bayshore could not be deemed vicariously liable for any unlawful conduct Solis may have committed; and 3) dismissing plaintiff's claims for intentional infliction of emotional distress and assault and battery. However, we affirm the dismissal of plaintiff's retaliation and aiding and abetting claims.

We thus affirm in part, reverse in part and remand for further proceedings.

I.

Plaintiff began working as a nurse at Bayshore in 1987 and enjoyed a good reputation within the hospital. On July 31, 2000, plaintiff was appointed a nursing care coordinator, making her responsible for supervising the nursing staff in the telemetry unit. Solis began his affiliation with Bayshore in 1991. As a thoracic and cardiovascular surgeon, he often attended to patients in plaintiff's unit. Solis had a reputation among the nursing staff for being overbearing and a "bully." Solis also had a reputation for being "touchy-feely" and flirtatious. However, the hospital administration did not view such conduct as "a major issue to make a scene about."

Shortly after plaintiff assumed her duties in the telemetry unit, Solis began to show a romantic interest in her. Between 2000 and 2001, he repeatedly asked her out on dates, which she declined. Solis made comments about her appearance, and initiated physical contact with plaintiff by rubbing her back and shoulders. Solis also frequently demanded that plaintiff assist him with patients, even though other nurses were already assigned to the task. Plaintiff grew increasingly uncomfortable with Solis's attentions.

In November 2002, Solis asked plaintiff to meet privately with him to discuss hospital policies and procedures. Plaintiff discussed Solis's request with her supervisor, Michelle Langevin, the director of nursing. Plaintiff told Langevin that Solis's past conduct made her uncomfortable, and that she could not understand why he wanted to speak with her because the issues were not within her scope of authority. Langevin directed plaintiff to do as Solis asked and attend the meeting.

In the meeting that ensued, Solis asked plaintiff how she had become a manager of the telemetry unit and questioned her about various hospital policies. When she referred Solis to either Langevin, Michael Teehan, the vice-president of nursing, or Raimonda Clark, Bayshore's chief operating officer, Solis stated that he would not speak to any "of them in the high-heeled shoes," and that he would only go to the "the boss man," Thomas Goldman, who was Bayshore's president and chief executive officer.

In 2003, Solis was elected by his peers to serve as the president of Bayshore's medical staff. According to Solis, the role of the medical staff president was to "represent the medical staff and liaison [sic] between the medical staff and [hospital] administration." The medical staff organization was responsible for overseeing its members, "subject to the ultimate authority of the Board of Trustees" (Board) of the hospital, and for providing recommendations to the Board on matters involving the credentials, performance and discipline of medical staff. As the medical staff president, Solis was also a member of the Board, which had the final authority on all matters related to hospital operations.

On January 6, 2003, Solis unexpectedly entered the office that plaintiff shared with another nurse, Lori Romano, and requested a meeting to "follow up" on their prior November 2002 meeting. Romano was present initially, but left the office shortly after Solis arrived. After discussing hospital matters, Solis told plaintiff that he had been in love with her for the past fifteen years. Plaintiff told Solis that his feelings for her were not reciprocated and that he was upsetting her.

Solis then leaned over and kissed plaintiff's cheek. She immediately rose from her seat and attempted to leave the office, but Solis followed her and proposed that they have an affair. He then grabbed plaintiff and forcibly kissed her, thrusting his tongue into her mouth. When plaintiff pushed him away, Solis smirked, and as he left her office, said "this is not over."

Romano later saw plaintiff, and noticed that she was "extremely upset and visibly shaken." Plaintiff told Romano she did not wish to discuss what had just happened, but stated, "[p]lease don't ever leave me alone with him again."

When plaintiff returned to work on January 13, 2003, she reported the incident to Langevin. Langevin responded that she was not surprised because Solis had always been "touchy feely." Langevin scheduled a meeting with plaintiff and other hospital administrators to discuss the January 6, 2003 incident.

On January 21, 2003, Solis approached plaintiff again and acted as if nothing had occurred. He told plaintiff that she was "looking good," and rubbed her back until she walked away. On January 22, 2003, plaintiff met with Langevin, Teehan, Cohen, and Emro Krasovec, Bayshore's vice president of human resources. Plaintiff gave a statement describing what Solis had done to her on January 6 and the day before. During the meeting, plaintiff agreed to take time off while the matter was under investigation.

Beginning on February 1, 2003, plaintiff commenced a paid leave of absence for a period of six months. While on leave, plaintiff received free counseling at a center operated by Bayshore, where the physician who treated plaintiff during this time diagnosed her as suffering from symptoms of post-traumatic stress disorder (PTSD).

Shortly after her leave began, Bayshore asked plaintiff to attend a meeting on February 14, 2003, with Krasovec, Solis, Langevin, Teehan, and Cohen. Plaintiff was uncomfortable facing Solis, but believed that she was obligated to attend. In the meeting, Solis continued to deny plaintiff's allegations, asserting that he had only lightly "grabbed each of her arms" and kissed her on her cheeks as a friendly gesture. Solis apologized if plaintiff had misconstrued his actions and for upsetting her. Plaintiff refused his apology, and the meeting concluded.

Plaintiff returned from her leave of absence on August 13, 2003. To minimize her contact with Solis, plaintiff accepted Bayshore's offer to fill a recently-created clinical admissions coordinator position. Bayshore acknowledged at appellate oral argument that this was a less prestigious position than the one she occupied before her leave of absence, but maintained that her salary was maintained at its prior level.

After the February 14, 2003 meeting between plaintiff, Bayshore administration and Solis, the hospital commenced an investigation. Bayshore's sexual harassment policy did not specifically address the harassment of its employees by attending physicians. Instead, the policy more generally stated that Bayshore would "not permit any employee to illegally harass others with whom he/she has business interactions, including but not limited to other employees, customers and vendors, or permit any outsider to harass its employees." It prohibited "[a]ctions, words, jokes or comments" based on an individual's sex, and expressly forbade "sexual conduct (both overt and subtle)." If a complaint was filed, Bayshore was obligated to conduct an investigation to determine whether any corrective action was warranted. Such corrective action could include discharge of the offending employee.

According to Teehan, investigations of employee-on-employee incidents normally concluded with final determinations of whether the alleged harassment had actually occurred. However, the incident involving Solis's treatment of plaintiff was viewed as being unique, because as an attending physician Solis was not regarded as a Bayshore employee. Because Solis was a member of the medical staff, Krasovec and Cohen determined that the medical staff bylaws should control the hospital's response.

The medical staff bylaws specified that if a complaint alleged that a physician's "professional performance" was "impaired" by "mental or emotional illness" or other causes, the medical staff president was required to appoint members to conduct an investigation and determine if "there is sufficient reason to believe that impairment may be an issue" and whether "corrective action" was required. If so, the bylaws specified that authorized "corrective actions" would range from a referral for treatment to a reduction or suspension of clinical privileges, or a suspension or expulsion from the medical staff.

Because Solis was the medical staff president, Cohen requested that Dr. Shuber Fan, the vice president of the medical staff, appoint two doctors to investigate plaintiff's allegations. Fan selected Drs. Amal Azer and Douglas Chudzik, whom Cohen contacted to explain the purpose of the investigation.

Chudzik testified at his deposition that Cohen provided him with no guidance on conducting the investigation. Azer testified that Cohen simply directed her to follow the bylaws in investigating the matter. She also asserted that she had not been given any information regarding appropriate conduct in the workplace or any definitions of sexual harassment. In fact, none of the physicians at Bayshore, including Solis, were ever required to attend any sexual harassment training.

Azer and Chudzik each spoke separately to plaintiff, but neither spoke with Romano or Solis. Cohen had already spoken with Solis, at which time Solis admitted only to having greeted plaintiff by kissing her cheeks. Therefore, Azer and Chudzik concluded that their investigation would not "gain anything more" by discussing plaintiff's allegations with Solis.

Azer and Chudzik met with Cohen on January 31, 2003, and reported that while they found plaintiff to be sincere, they were unable to conclusively determine what had happened. Azer explained that she was unsure about the truthfulness of plaintiff's version of events because Azer believed plaintiff should have repelled Solis's alleged January 6, 2003 assault more aggressively.

Cohen memorialized his discussion with Azer and Chudzik in a confidential memo dated January 31, 2003, and deemed Solis impaired. Consistent with the impaired physician provisions of the bylaws, Cohen contacted the New Jersey Board of Medical Examiners (BME), and learned that the BME offered two methods for reporting impaired physicians. After discussing the options with Solis, Cohen "cajoled" Solis to enroll in a treatment program through the BME's confidential reporting route for impaired physicians. According to Cohen, the purpose of the program was to rehabilitate impaired physicians without "destroying their careers."

Solis initially submitted to anger management treatment, but interfered with Cohen's efforts to obtain information about his progress. Cohen eventually became frustrated by Solis's refusal to cooperate, and filed a formal complaint against Solis with BME, resulting in proceedings that were potentially open to the public.

On March 13, 2006, the BME issued a private letter to Solis expressing concern with Solis's admission that he had "kissed [plaintiff] on both cheeks and grabbed her arms." However, instead of initiating formal action against Solis's medical license, BME proposed to "close" the matter if Solis agreed to submit to "an evaluation and counseling for sexual harassment and anger management." Solis accepted the BME's terms in September 2006.

On November 29, 2007, Bayshore issued a letter advising plaintiff that it deemed her harassment complaint against Solis resolved. Solis retained his attending privileges at the hospital and was never disciplined or punished by Bayshore for his actions. According to plaintiff, she was upset whenever she saw Solis in the hospital, and deliberately took steps to avoid him.

Plaintiff believed that Bayshore retaliated against her for filing a complaint against Solis. She maintained that Clark had expressed a desire to transfer her to an undesirable position in the hospital to induce her to leave her employment. Her allegation is supported by the deposition testimony of Gerald Costa, who became vice president of medical affairs when Cohen retired; however, the details of Clark's alleged intentions, such as when and why Clark made the statement, are not clear from the portions of the deposition transcript in the record.

Plaintiff also complained that in 2004 Dr. Yong Choo, another attending physician, had made a series of inappropriate comments to her and another nurse. On one occasion, Choo expressed his frustration at having to wait for a nurse to provide him with information from a patient's medical chart, describing his experience of being interrupted at home by nurses: "I could just be getting out of the shower and they're on the phone and I'm sitting there naked and waiting for answers and responses and I'm just waiting and waiting and waiting and nobody is getting back to me." Choo also asked plaintiff out to lunch or dinner and recounted a story of a physician who had formerly worked at Bayshore and had an adulterous affair with a nurse.

On two other occasions, Choo purportedly put his arm around plaintiff after allegedly hearing about her complaint against Solis and asked her if she was all right. When plaintiff complained about the incidents to Teehan, a member of the hospital's administration asked Choo to refrain from discussing matters that would make others uncomfortable.

Plaintiff made another complaint against Choo in 2007, because he kissed her cheek while wishing her "Happy New Year." As a result, Krasovec issued Choo a reprimand letter on February 7, 2007, advising that his behavior was not acceptable and warning that the continuation of such behavior "would result in further investigation and possible disciplinary action, up to and including loss of medical staff privileges."

In November 2008, Bayshore moved for summary judgment. For the purposes of the motion, the judge found as an undisputed fact that during plaintiff's employment, she had been subjected to at least two instances of sexual harassment by Solis, one on January 6, 2003, and the other on January 21, 2003. However, the judge concluded that neither incident, individually or collectively, was sufficiently "severe or pervasive" to satisfy the legal standard articulated in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993), to establish a hostile work environment claim under the LAD. She found that Solis's conduct was akin to the behavior the Court deemed insufficient to establish a hostile environment in Godfrey v. Princeton Theological Seminary, 196 N.J. 178 (2008).

The judge alternatively found that even if the incidents were "severe or pervasive," Bayshore could not be held liable for Solis's conduct because he was not Bayshore's employee. In view of those constraints, the judge concluded that Bayshore's actions and accommodations reasonably remedied any harm sustained by plaintiff.

The judge also found that the two incidents involving Choo did not constitute retaliation, and dismissed plaintiff's claim accordingly. As to plaintiff's allegations of intentional infliction of emotional distress and assault and battery, the court again ruled that Bayshore was not liable for Solis's conduct because there was no agency relationship. The judge also dismissed plaintiff's emotional distress claim because Solis's conduct was not sufficiently egregious and because Solis did not act with the intent to inflict emotional distress on plaintiff. The judge did not directly address plaintiff's claim that the hospital had aided and abetted Solis's unlawful conduct.

II.

When determining a motion for summary judgment, the

trial judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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). This appeal arises from an order granting summary judgment to defendant. Therefore, we view the evidence in the light most favorable to the non-moving party. Brill, supra, 142 N.J. at 540. When reviewing an order granting or denying summary judgment, we apply the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We turn first to plaintiff's claim that the Law Division erred when it found that Solis's conduct was not sufficiently severe or pervasive to create a hostile work environment. Before analyzing plaintiff's claims, we pause to address Bayshore's contention that plaintiff is barred from relying upon evidence relating to any pre-January 2003 events by virtue of a tolling agreement that the parties apparently executed in January 2005. Bayshore has not cited any legal authority to support its position that otherwise competent evidence such as this may be time-barred. We recognize that because plaintiff filed her complaint in 2005, events that occurred prior to August 2003 would ordinarily be barred by the two-year statute of limitations. See N.J.S.A. 2A:14-2. However, events that are part of a continuing pattern of unlawful behavior are admissible even if they lie outside the two-year limitations period. Shepherd v. Hunterdon Devtl. Ctr, 174 N.J. 1, 17-18 (2002). For that reason, we conclude that the events prior to 2003 are admissible. We need not tarry long on this issue, however, because, as we shall now discuss, plaintiff's encounters with Solis on January 6 and January 21, 2003, provided a sufficient basis, in and of themselves, to have required the judge to deny Bayshore's summary judgment motion.

The Court held in Lehmann that "when an employer or fellow employees harass an employee because of his or her sex to the point [that] the working environment becomes hostile," the targeted employee has established a cause of action under the LAD. Supra, 132 N.J. at 601. To establish a claim for hostile work environment sexual harassment, a plaintiff must establish four factors:

[T]he 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.]

"When the harassing conduct is sexual or sexist in nature, the [first factor] will automatically be satisfied." Id. at 605. The "defining characteristic [of sexual harassment] is that the harassment occurs because of the victim's sex." Id. at 602. For purposes of appeal, Bayshore does not dispute that Solis grabbed plaintiff and forcibly kissed her. Thus, the first factor has been satisfied.

The remaining Lehmann factors are interdependent. Id. at 604. In assessing the "severe or pervasive" component, the relevant inquiry is whether the conduct itself was severe or pervasive, regardless of the effect of that conduct upon the plaintiff or work environment. Id. at 606-07. Accordingly, a single incident can, when severe enough, satisfy this requirement. Ibid. See also Taylor v. Metzger, 152 N.J. 490, 498-99 (1998) (a single utterance of a racial epithet was sufficient to create a hostile work environment). When multiple acts of harassment are alleged, "courts must consider the cumulative effect of the various incidents, bearing in mind 'that each successive episode has its predecessors, [and] that the impact of the separate incidents may accumulate . . . .'" Lehmann, supra, 132 N.J. at 607 (quoting Burns v. McGregor Elec. Indus., 955 F. 2 559, 564 (8th Cir. 1992) (alteration added)).

Finally, a gender-specific standard must be used to assess whether a reasonable employee would find his or her work environment to be hostile as a result of the offending act. Id. at 614. This standard was premised on the Lehmann Court's recognition that women's perspectives on sexual harassment are different from men's, and are colored by social and cultural circumstances that have historically defined the relationship between the two sexes. The Court recognized that conduct that may seem relatively innocuous to a man is often viewed as fraught with the distinct potential for aggression and violence when viewed by a woman. Id. at 615. For this reason, courts are obliged to examine the allegedly harassing conduct within the full context of the plaintiff's work climate and with sensitivity to the particular reaction of many women to such harassing conduct. Id. at 607.

Additionally, to establish a prima facie case,

the plaintiff may use evidence that other women in the workplace were sexually harassed. The plaintiff's work environment is affected not only by conduct directed at herself but also by the treatment of others. A woman's perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers. Therefore, . . . the plaintiff need not personally have been the target of each or any instance of offensive or harassing conduct. Evidence of sexual harassment directed at other women is relevant to both the character of the work environment and its effects on the complainant.

[Id. at 610-11.]

Applying the Lehmann standard, we conclude that plaintiff's proofs raised a genuine issue of material fact about whether Solis's conduct subjected her to a hostile work environment. A reasonable jury could find that Solis forced himself upon plaintiff in a sexual manner whenever the mood struck him, that he was undeterred by her repeated rejection of his advances, and that, if anything, her rejection of him seemed to excite him and make him even more bold, more aggressive and more offensive. A reasonable jury could also find that because the second incident occurred a mere fifteen days after the first, in an environment in which Bayshore did precious little to protect plaintiff from Solis's overtly sexual behavior, plaintiff's work environment became one in which she lived in constant fear of repeat incidents, thereby satisfying the "severe or pervasive" requirement of Lehmann.

The judge's conclusion that Solis's conduct was not serious enough to satisfy the demands of Lehmann unfairly diminishes the extent to which Solis physically forced himself on plaintiff. This is not a case where his conduct consisted only of unwanted and sexually-charged verbal remarks. Instead, the record demonstrates that when Solis kissed plaintiff's cheek, she rose from her seat to get away from him, but he followed her and proposed that they have an affair. As if this was not ominous enough, he then grabbed her and forcibly kissed her by inserting his tongue in her mouth. Worse still, when plaintiff pushed him away, he smirked and said "this is not over."

After this incident, a woman would not need to be excessively timid or thin-skinned to be terrified by what might lie ahead. The January 6, 2003 incident that we have just described, especially when considered in conjunction with the incident fifteen days later when Solis behaved as though nothing had happened, told plaintiff she was "looking good," and started rubbing her back, is precisely the sort of conduct the Court had in mind when it observed in Lehmann that:

[W]omen live in a world in which the possibility of sexual violence is ever-present. Given that background, women may find sexual conduct in an inappropriate setting threatening. . . . [B]ecause women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault.

[Id. at 615 (internal quotations and citations omitted).]

We disagree with the Law Division's conclusion that the conduct here was far less offensive than that found actionable in Taylor and was more akin to the innocuous behavior the Court deemed insufficient in Godfrey. In Taylor, the Sheriff called the plaintiff, who was African-American, a "jungle-bunny" in the presence of the plaintiff's supervisor and the under-sheriff, who then laughed. Taylor, supra, 152 N.J. at 494-95. The Court held that the grant of summary judgment was improper because a rational factfinder could have found that the slur, though an isolated remark, was sufficiently demeaning "under [the] particular circumstances [to] create a hostile work environment." Id. at 501.

A direct comparison of this case to Taylor is difficult because the offending conduct is so different in nature. Taylor involved a degrading and offensive racist remark, whereas the conduct here involves sexually aggressive behavior. Nonetheless, in its own way, Solis's conduct was as demeaning to plaintiff's dignity and autonomy as was the offensive remark in Taylor.

As we have observed, the judge concluded that Solis's conduct here was similar to that in Godfrey, where two female seminary students alleged that they had been sexually harassed by an elderly alumnus who lived in seminary housing. Supra, 196 N.J. at 183. The Court upheld the trial judge's entry of a directed verdict for the defendant at the end of the plaintiff's case, holding that the conduct in question was insufficient as a matter of law to establish a hostile environment under the LAD. Id. at 194. The behavior by the offending male in Godfrey pales in comparison to what Solis did here. In Godfrey, the alumnus subjected the two students to unwanted mail and phone calls, and on a few occasions, showed up at places where they were present. Id. at 184-90. He never made any sexual remarks, and with the exception of two incidents where he lightly touched one of the plaintiffs on the arm to engage her attention, he never touched either of them and certainly never forced himself upon them, id. at 185-86, as Solis did here. Thus, the judge's reliance on Godfrey is wholly misplaced.

The Law Division's conclusion that Solis's conduct was not "severe or pervasive" within the meaning of Lehmann also improperly ignored the hierarchical relationship between physicians and nurses existing at Bayshore. As the Court observed in Lehmann, "'a discrimination analysis must concentrate not on individual incidents but on the overall scenario.'" Lehmann, supra, 132 N.J. at 607 (quoting Andrews v. City of Philadelphia, 895 F. 2 1469, 1484 (3d Cir. 1990)). A reasonable juror could find that the work environment at Bayshore was highly deferential to doctors, Solis in particular, and that the status and rights of the nursing staff were trivialized.

As Cohen commented, the doctors created their own bylaws and generally "didn't like being told what to do." Even persuading the doctors to attend sexual harassment training was problematic because threats to "take away their privileges" were viewed "as an empty threat." In that environment, a nurse, such as plaintiff, subjected to unwanted sexual advances would be entitled to conclude that she would be subjected to repeated incidents because the hospital would always side with the doctor, especially Solis, who was the medical staff president, thereby ignoring her complaints and her allegations.

Thus, we conclude plaintiff satisfied her burden of establishing "discriminatory conduct that a reasonable person of the same sex in the plaintiff's position would consider sufficiently severe or pervasive to alter the conditions of employment and to create an intimidating, hostile, or offensive working environment." Id. at 592. We reverse the judge's finding that Solis's conduct was not "severe or pervasive" within the meaning of Lehmann. We turn now to the judge's conclusion that Bayshore had no vicarious liability for Solis's conduct.

III.

Next, plaintiff maintains that the judge erred by alternatively finding that because Solis was neither an employee of Bayshore nor under its direct control, the hospital had no liability for his conduct, as it took sufficient remedial measures to prevent a recurrence.

Whether Solis's status was more akin to a supervising employee of the hospital, or instead an independent contractor, or neither, is ultimately of little import in resolving the issue of the hospital's potential liability for his conduct. Plaintiff's employee status and defendant's obligations to plaintiff are not disputed. "An employer that knows or should know its employee is being harassed in the workplace, regardless of by whom, should take appropriate action." Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 269 (App. Div. 1996) (emphasis added). The only relevant issue is whether Bayshore adequately remediated the harm to plaintiff by taking effective steps to prevent a recurrence of Solis's conduct. See id. at 268-69.

The Law Division found that Bayshore's accommodations to plaintiff (reduced work hours, a leave of absence and transferring her to a different location in the hospital) and its corrective measures with regard to Solis, were sufficient. We conclude that a reasonable jury could find otherwise.

As the Court explained in Lehmann, the remedial intent of the LAD "is to change existing standards of conduct [and] . . . to remediate conditions of hostility and discrimination, not to preserve and immunize pre-existing hostile work environments." Lehmann, supra, 132 N.J. at 612. In this case, the extent to which Bayshore's actions corrected the hostile work environment plaintiff experienced is subject to debate.

Apart from the BME proceedings, it is undisputed that no disciplinary measures were taken against Solis by either the medical staff or Bayshore, and Bayshore continues to insist that it was unable to take any disciplinary action against Solis because he was not a Bayshore employee. A trier of fact could reject Bayshore's claim that it was so constrained.

First, despite Bayshore's argument that the medical staff was a separate organization within the hospital, the facts show significant integration between the medical staff and hospital. For instance, the Board conducted reviews of the doctors, maintained files of doctor performance and provided medical equipment and administrative and nursing support to the medical staff. On these facts, a factfinder could reasonably look beyond the titles and infer an agency relationship between Solis and the hospital. See Pukowsky v. Caruso, 312 N.J. Super. 171, 182-83 (App. Div. 1998) (identifying factors that could support an employer-employee relationship).

Moreover, the bylaws on which Bayshore relies to assert the autonomy of the attending doctors also contain procedures for seeking corrective action against a physician "[w]henever the activities or professional conduct of any practitioner with clinical privileges are considered to be lower than the standards or aims of the Staff or to be disruptive to the operations of the Hospital . . ." (emphasis added). A request for corrective action, which could include the "reduction or suspension of clinical privileges," could be initiated not only by medical staff, but by the president of the hospital and the hospital Board. Notwithstanding this option, Bayshore elected to apply the "impaired physicians" provisions of the bylaws, and thereby delegated all responsibility for investigating Solis's conduct to the medical staff. Though it is ultimately a matter of credibility, a trier of fact could reasonably agree with plaintiff that Bayshore declined to seek more direct action against Solis because he was the medical staff president and a Board member at the time she filed her complaint.

Moreover, Cohen confirmed that the hospital's human resources department could take disciplinary action against a member of the medical staff "if they needed to," but that it was a "very long and tedious process." The bylaws further reinforced Bayshore's authority to take corrective action and provided that the medical staff was obligated to discharge its responsibilities "subject to the ultimate authority of the Board of Trustees." In fact, Bayshore threatened to take such action in the letter of reprimand it issued to Choo in February 2007. In contrast to its response to Choo, Bayshore never issued any reprimand to Solis or ordered him to stay away from plaintiff, even though he admitted, at the very least, to having kissed plaintiff on the cheeks while holding her arms.

Bayshore maintains that Solis was adequately disciplined as part of the impaired physician proceedings before the BME. However, a jury could reasonably find that the BME proceedings were inadequate, inasmuch as the BME's private letter to Solis did nothing to vindicate plaintiff's statutory right to work in a harassment-free environment. Cohen's description of the BME program and his rationale for confidentially referring Solis there are telling: "The primary goal is to identify doctors who are potential problems, rehabilitate them, and get them back on line without their patients suffering, without destroying their careers."

The final question to be addressed with respect to defendant's liability, is whether defendant's sexual harassment policies adequately protected plaintiff. As the Court held in Gaines v. Bellino, 173 N.J. 301, 303 (2002):

[I]f an employer has exercised due care in acting to prevent a sexually discriminatory hostile work environment, vicarious liability should not attach. The establishment of an effective anti-sexual harassment workplace policy and complaint mechanism evidences an employer's due care and may provide affirmative protection from vicarious liability.

Similar to the allegations in the current case, the plaintiff in Gaines filed suit asserting that she had been forcibly kissed by her shift supervisor. Id. at 304. According to the record, although the employer had an anti-harassment policy, numerous managerial staff and employees, including the harasser, had never received any training about the policy. Id. at 309. The Court ultimately reversed the lower court's grant of summary judgment in favor of the employer, because

[a]t trial a fact-finder could conclude that the employer had in place an anti-harassment policy in name only [and] there [were] genuine factual issues concerning whether [the] employer had implemented an anti-sexual harassment workplace policy that provided realistic preventative and protective measures for employees in the event that harassment occurred . . . .

[Id. at 303.]

In the case before us, the judge expressly found that Bayshore's anti-harassment policy was not entirely clear, yet she absolved the hospital of liability because Solis could not be charged with knowledge of the policy, and Solis's conduct consisted of nothing more than "isolated" incidents. That conclusion did not properly recognize the affirmative obligations the LAD imposes upon employers. Indeed, as the Lehmann Court held:

When an employer knows or should know of the harassment and fails to take effective measures to stop it, the employer has joined with the harasser in making the working environment hostile. The employer, by failing to take action, sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser.

[Lehmann, supra, 132 N.J. at 623.]

In Gaines, the Court elaborated upon the liability principles pronounced in Lehmann, and highlighted the relevant factors to consider when the employer's liability derives from an alleged failure to take remedial action. Supra, 173 N.J. at 313. Such factors include the existence of mandatory anti-harassment training for supervisors, formal policies prohibiting harassment in the workplace, an "unequivocal commitment from the highest levels of the employer that harassment would not be tolerated" and consistent implementation of that policy. Ibid. Based on these factors, a jury could reasonably find that like the Gaines employer, Bayshore failed to implement an effective anti-harassment policy.

First, the motion record suggested that the majority of doctors at Bayshore, including Solis, were not required to attend discrimination training. Second, Bayshore had no procedures in place to specifically address sexual harassment in the doctor-nurse context. The record suggests that Solis's "touchy-feely" behavior was well known to many individuals at Bayshore before January 2003, yet Bayshore failed to address Solis's behavior at an earlier juncture.

In sum, summary judgment should not have been granted because the degree of defendant's control over Solis was sharply

contested. Thus, we reverse the Law Division's grant of summary judgment to Bayshore on plaintiff's LAD hostile work environment claim.

IV.

We now address plaintiff's argument that the court erred in

summarily dismissing her retaliation claim. The judge found that rather than retaliating against plaintiff, Bayshore did "[e]verything [it] could to try to make [plaintiff] feel more comfortable, . . ." The judge also ruled that the incidents involving Choo, though unfortunate, did not appear to have been animated by a retaliatory motive which could be attributed to the hospital.

The LAD deems it an unlawful practice

[f]or any person to take reprisals against 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. 10:5-12(d).]

To establish a prima facie case of retaliation, plaintiff was obligated to show that: "1) [s]he was engaged in a protected activity known to the defendant; 2) [s]he was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two." Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995).

While there are no bright-line rules as to what constitutes an adverse employment act, relevant considerations include whether the conduct adversely affects "the terms, conditions, or privileges of the plaintiff's employment or limit[s], segregate[s] or classif[ies] the plaintiff in a way which would tend to deprive her of employment opportunities or otherwise affect her status as an employee." Marrero v. Camden County Bd. of Soc. Servs., 164 F. Supp. 2d 455, 473 (D.N.J. 2001) (internal quotation and citation omitted).

Plaintiff alleges that the following constituted adverse employment action: 1) she was forced to attend the meeting with Solis on February 14, 2003; 2) she was removed from the nurse coordinator position which she enjoyed in the telemetry unit; 3) Choo intimidated her from pursuing her complaint; 4) she was forced to take two leaves of absence; 5) she was forced to work in an environment that continued to be hostile; 6) she had to "fight" the hospital to have her sick leave days restored; and 7) Bayshore took measures to place her in a subordinate position to cause her to resign. These contentions are without merit for several reasons.

First, though plaintiff was understandably ambivalent about seeing Solis again during the February 14, 2003 meeting, and though the wisdom of the arrangement may be questioned in retrospect, there is no evidence that defendant organized the meeting with a retaliatory intent. For instance, according to Cohen, the purpose of the meeting was to facilitate a resolution.

Second, many of plaintiff's assertions are belied by her own statements. For instance, her deposition testimony suggests that plaintiff told Teehan that she did not want to return to her previously held position in the telemetry unit and that she was amenable to assuming the clinical admissions coordinator position. The record also shows that it was plaintiff's idea to take the leave of absence in 2003 and that she took a second leave in 2006 at the advice of her therapist.

Third, though the incidents involving Choo in 2004 and 2007 were unfortunate, no rational fact-finder could find that they were orchestrated by defendant to retaliate against plaintiff, particularly given the swift action that defendant subsequently took to reprimand Choo.

Fourth, even assuming that the work environment continued to be hostile to her, plaintiff cannot rely upon that fact to establish an adverse employment action. More specifically, those hostile conditions, even if accepted as true, preexisted her complaint, as opposed to having been subsequently created to retaliate against her.

Fifth, plaintiff has not pointed to any corroborating evidence to support her claim that she had to "fight" Bayshore to have her leave days restored. See Herman v. Coastal Corp., 348 N.J. Super. 1, 18 (App. Div.) ("bare conclusions in the pleadings will not defeat a meritorious application for summary judgment"), certif. denied, 174 N.J. 363 (2002).

Finally, plaintiff relies on Clark's alleged remarks to Costa to suggest that defendant sought to transfer her to an undesirable position to force her out. However, even assuming such statements were made, based on the motion record, there is no evidence that such actions were actually carried out. Moreover, to constitute an adverse employment action, the act must affect "the terms, conditions, compensation, or benefits of her employment or [have] prejudiced her ability to take advantage of future employment opportunities." Hargrave v. County of Atl., 262 F. Supp. 2d 393, 427 (D.N.J. 2003). There is no evidence that the acts complained of affected plaintiff in this manner.

Therefore, no rational fact finder could find that Bayshore took adverse employment action against plaintiff. We affirm the dismissal of plaintiff's retaliation claim.

V.

Next, plaintiff asserts that the judge never analyzed

whether Bayshore was entitled to summary judgment on plaintiff's claim that defendant "aided and abetted unlawful acts" under the LAD, and requests a remand in accordance with Rule 1:7-4. Bayshore agrees that the court did not directly address this claim, but asserts that the court implicitly dismissed plaintiff's aiding and abetting claim because an aider or abettor cannot assist itself.

N.J.S.A. 10:5-12(e) prohibits any person from aiding or abetting another in committing any acts prohibited by the LAD. This provision is designed to impose liability upon a party, other than the employer, for aiding and abetting the unlawful acts of the employer. Tarr v. Ciasulli, 181 N.J. 70, 84 (2004); Figueroa v. City of Camden, 580 F. Supp. 2d 390, 405 (D.N.J. 2008) (discussing the potential liability of a labor union for aiding the discrimination of the employer). Plaintiff has failed to identify any legal authority which would support the notion that a party can be held liable for aiding and abetting its own unlawful conduct, and thus there is no basis for plaintiff's aiding and abetting claim. We affirm the dismissal of this claim.

VI.

Plaintiff also argues that because there were no disputes of material fact regarding Solis's conduct, his role at Bayshore or the impact of his behavior upon her, the court erred in dismissing her claim for intentional infliction of emotional distress. In explaining her reasons for dismissing plaintiff's claim, the judge stated:

[I] don't find an agency relationship [between defendant and Solis]. I don't find an employment relationship. So that is the basic reason that I don't find intentional infliction of emotional distress or assault and battery. I don't find them vicariously liable.

In addition, if I were to look at intentional infliction of emotional distress, there appears to be no intent or requisite disregard here of the feelings of the plaintiff. If this happened, and I don't really doubt that it did, according to [plaintiff] in the light most favorable to her, I don't find that was the state of mind of [Solis].

[I] also don't find that it is so outrageous that it . . . exceed[ed] all possible bounds of decency tolerable in a civilized community . . . .

To prevail on her claim, plaintiff was required to "establish intentional and outrageous conduct by [Solis], proximate cause, and distress that is severe." Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988). As to whether defendant could be vicariously liable, agency principles hold that an employer is responsible for any torts committed by an employee while acting in the scope of his or her employment. Lehmann, supra, 132 N.J. at 619. An employer can also be held liable for torts committed by an employee outside the scope of employment if: 1) the employer intended the conduct; 2) the employer was negligent or reckless; 3) the conduct violated a non-delegable duty of the employer; or 4) the employee acted upon apparent authority, or was otherwise "'aided in accomplishing the tort by the existence of the agency relation.'" Ibid. (quoting Restatement (Second) of Agency 219).

Applying these standards, and drawing all inferences in favor of plaintiff, Brill, supra, 142 N.J. at 541, the grant of summary judgment on this claim was improper. As an initial matter, and as we have already discussed, the precise nature of Solis's relationship to, and role within, Bayshore was sharply contested. Thus, the court bellow erred in summarily finding that Solis could not have had an agency relationship with defendant.

As to the underlying tort, plaintiff was required to show that Solis either "intend[ed] both to do the act and to produce emotional distress," or acted "in deliberate disregard of a high degree of probability that emotional distress will follow." Buckley, supra, 111 N.J. at 366. There is little in the motion record from which Solis's mental state can be discerned, and it is unclear which facts the judge relied on to conclude that Solis did not act with the requisite mental state; however, a reasonable juror could infer that Solis acted intentionally and without regard to plaintiff's reaction. At the very least, the uncertainty in the motion record regarding Solis's motivations militated against the summary dismissal of plaintiff's claim.

The second factor required plaintiff to show that Solis's conduct was extreme, outrageous and exceeded all bounds of decency. Ibid. Notably, courts have held that demeaning and discriminatory behavior in the work environment, particularly in the employer-employee context, may weigh in favor of extreme and outrageous conduct. Taylor, supra, 152 N.J. at 512. A reasonable juror could find that Solis's conduct was especially egregious because of the power dynamics within the hospital. We disagree with the court's conclusion that Solis's conduct did not rise to the level of being beyond the "bounds of decency."

Finally, the level of emotional distress must be "so severe that no reasonable [person] could be expected to endure it." Buckley, supra, 111 N.J. at 368. A person will not be permitted to recover for "idiosyncratic emotional distress that would not be experienced by average persons." Taylor, supra, 152 N.J. at 516. Actionable levels of distress may include "'any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so,'" and may include, but is not limited to, PTSD. Id. at 514 (quoting Poole v. Copland, Inc., 481 S.E.2d 88, 93 (N.C. Ct. App. 1997)). The motion record included sufficient evidence to support plaintiff's claim that she experienced significant distress, including PTSD.

In sum, Bayshore was not entitled to summary judgment on plaintiff's intentional infliction of emotional distress claim, as plaintiff's proofs were sufficient to raise a genuine issue of material fact.

VII.

Last, we address plaintiff's argument that the court erred in dismissing her claim for assault and battery. For reasons similar to those we have discussed in relation to the dismissal of plaintiff's intentional infliction of emotional distress claim, we agree. The judge did not directly address the elements of this tort, instead ruling that plaintiff could not pursue her assault and battery claim against Bayshore because there was no agency relationship.

Assault and battery consists of two components. A person is liable for assault if he or she acts with the intent "to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact" and "the other is thereby put in such imminent apprehension." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591 (2009) (internal quotation and citation omitted). "The tort of battery rests upon a nonconsensual touching." Ibid. Here, a rational juror could find that Solis intentionally and forcibly kissed plaintiff against her wishes, and that she presented sufficient evidence to establish a claim for assault and battery.

Notably, Bayshore does not dispute that Solis's conduct, if proven, would constitute assault and battery; only that it could not be held vicariously liable for Solis because he was not its employee. However, as we have already concluded, a reasonable juror could have found otherwise based on the facts presented. Consequently, we reverse the dismissal of plaintiff's assault and battery claim.

VIII.

Affirmed in part, reversed in part and remanded.

 

In February 2008, plaintiff reached a settlement with Solis and on September 5, 2008, filed a stipulation dismissing her claims against him.

The "anger management" recommendation was the result of a separate complaint by another nurse.

(continued)

(continued)

40

A-3423-08T1

April 28, 2010