BETTY POINER v. THE COUNTY OF MIDDLESEX, JOSEPH CANTELLA et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2651-05T12651-05T1

BETTY POINER,

Plaintiff-Appellant,

v.

THE COUNTY OF MIDDLESEX,

JOSEPH CANTELLA and

DAVID R. CAMPION,

Defendants-Respondents.

_______________________________________

 

Submitted March 28, 2007 - Decided June 7, 2007

Before Judges Parker, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MID-L-006837-03.

Theodore Campbell, attorney for appellant.

Hoagland, Longo, Moran, Dunst & Doukas, attorneys for respondent County of Middlesex (Susan K. O'Connor, of counsel; Amy E. Stutzke, on the brief).

Convery, Convery & Shihar, attorneys for respondent Joseph Cantella (Clark W. Convery, of counsel and on the brief).

Kelso & Bradshaw, attorneys for respondent David R. Campion (Patrick J. Bradshaw, on the brief).

PER CURIAM

Plaintiff Betty Poiner appeals from orders entered on December 16, 2005, granting summary judgment in favor of defendants County of Middlesex (County), Joseph Cantella (Cantella), and David R. Campion (Campion). Plaintiff also appeals from an order entered on June 9, 2005, denying her motion to compel the production of the County's file of its investigation of plaintiff's discrimination complaints; and an order entered on July 22, 2005, which denied plaintiff's motion for reconsideration of the June 9, 2005 order, and her motion for leave to amend the complaint. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

I.

On May 13, 2003, plaintiff, along with her husband and their two minor children, filed a complaint against the County, Cantella, Campion, George Catano (Catano), Jim Labose (Labose), and Robert Engel (Engel). Plaintiff asserted claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, for hostile work environment on the basis of race and gender, and retaliation. Plaintiff also asserted claims against Cantella and Campion for aiding and abetting the violation of the LAD and for the intentional infliction of emotional distress. On June 11, 2004, plaintiff filed an amended complaint which did not include her family members as plaintiffs, and dropped the claims against Engel, Labose, and Catano.

We briefly summarize the evidence presented in the trial court. Plaintiff is an African-American woman. She was hired in July 1988 by the County's Department of Public Property, and employed as a building maintenance worker on the night shift in the County's courthouse and administration building. Following a maternity leave from October 1993 until July 1994, plaintiff returned to her job on the night shift. Cantella was the assistant building superintendent and he supervised the night crew.

Plaintiff was deposed on several occasions. She testified that in the first six months after her return to work, Cantella complimented her on her clothes, earrings, and hair. According to plaintiff, other workers told her that Cantella wanted to have sexual relations with her. Other persons hinted at it. Plaintiff said that she did not file a complaint at the time because Cantella had "just [been] giving [her] compliments."

Plaintiff asserted that on a day in either December 1994 or January 1995, she was in Cantella's office in the administration building, along with several other workers. Cantella walked over and sat on plaintiff's lap. According to plaintiff, Cantella put his arms around her to keep from sliding off her lap. Cantella did not say anything; he just started to laugh because, according to plaintiff, "he thought it was a joke." She did not say anything. The other four men in the office started laughing; they also thought it was a joke. Plaintiff said that Cantella sat in her lap a few minutes. She stated that she was shocked and angered by Cantella's actions. The following day, plaintiff complained about the incident to Gerry Piegdon (Piegdon), the County's affirmative action officer. Piegdon told plaintiff that she would speak to Cantella.

Plaintiff testified that, after this incident, she did not speak with Cantella until one night a month later when Cantella came up to the third floor of the courthouse where she was working. Plaintiff was essentially alone on the floor because the other workers were in different places. She said that she was "scared to death" because she did not know what Cantella wanted. Cantella asked if plaintiff was taking typing classes, and she replied that she was. Plaintiff claimed that Cantella was standing very close to her. As she described it, Cantella was almost "rubbing against" her breasts.

Plaintiff told Cantella that she might want to change positions "one day" and needed clerical experience. Cantella allegedly told plaintiff that he would do anything he could to help her. She testified that Cantella was not "trying to be helpful. He wanted something for his favor." Plaintiff said that she got that impression from "[t]he movement of [Cantella's] body, his little slimy grin, and how he was all close up on me."

Two weeks later, plaintiff was assigned to clean on the fifth floor. She testified that Cantella changed her assignment because he knew she "wasn't going to go with him." Cantella allegedly told plaintiff she was being moved because two other workers, Maria Medina (Medina) and Roberto Adams (Adams), were talking too much and not cleaning properly. Plaintiff stated that the floor was "very, very dirty" when she was assigned there.

Plaintiff asserted that, at one point, when she was working on the fifth floor, Cantella assigned her to clean the basement, which was usually cleaned by three men. Plaintiff said that the basement was "filthy" and she "had to do everything." She testified that she did not know any other female workers who "had to go down there." Plaintiff worked on the fifth floor for about two months, and did not have any contact with Cantella in that period.

Thereafter, plaintiff was re-assigned to the first floor. According to plaintiff, Cantella told her that she was being moved to the first floor because "he wanted everybody to know the whole building." Plaintiff worked on the first floor for three or four months but stayed away from Cantella. Plaintiff learned that there was an opening on the day shift and asked Engel, who was one of plaintiff's supervisors, for a transfer.

Plaintiff did not tell Engel that she wanted the transfer because of her concerns about Cantella. However, plaintiff claimed that Engel knew she was not getting along with Cantella because she had complained about his cursing, screaming, and yelling. She stated that she also complained about "everything" to Piegdon, who allegedly told plaintiff that she was going to "straighten it out." In May 1995, plaintiff was transferred to the day shift.

Plaintiff testified that when she was re-assigned to the day shift, she was told to "punch in" in the basement. Plaintiff stated that, in the basement, she observed "naked pictures all over the walls. And there was a lot of cursing and screaming and yelling." Plaintiff said that she again complained to Piegdon. Plaintiff also complained to the personnel department and her boss, Ron Loveley (Loveley). Plaintiff asserted that the "naked pictures" were removed about six or seven months later but she had to complain "about six times" before they were removed.

Plaintiff additionally testified that there was a chalkboard in the employee's room and comments of a sexual nature were written on the board. Plaintiff said that the comments were not about her but they were offensive. Plaintiff did not know who had written on the board because, as she put it, "[t]hey were sneaky in writing it." Plaintiff asserted that she complained about the writings to Campion and George Foiles (Foiles), who was the building superintendent at the time. Plaintiff asserted that the writings continued even though her supervisors knew this was happening.

Plaintiff also stated that she had complained to Loveley about Cantella. Plaintiff claimed that, although Cantella was not her direct supervisor at the time, he would report early for the night shift, curse at her, and call her "all kind[s] of names." Cantella allegedly told plaintiff that she should not be allowed to work there, and said that she "was dumb and stupid." She said that Cantella called her "names like stupid" about thirty or forty times. Plaintiff additionally claimed that Cantella tried to kick her.

Plaintiff further testified that in April 1996, Catano who also worked on the day shift, asked her if she ever had sex with a white man. Plaintiff told Catano that she had not. Catano allegedly told plaintiff that sex with white men was superior to sex with black men and, if she did not believe him, she could go into the closet and he could make her have a white baby. Plaintiff reported the incident to Campion.

After plaintiff complained about the room in the basement, she was allowed to "punch in" in a room that had been Cantella's office. Plaintiff said that in October 2001, she came to work early one morning and the door to the room was locked. Cantella was there and she asked if he would open the door. Plaintiff testified that Cantella told her that he was not her supervisor and did not have to unlock the door for her. She asked if he would please open the door. Cantella went to find the key to the door.

While Cantella was looking for the key, plaintiff told him that she did not understand why he was so nasty to her. Plaintiff claimed that Cantella said, "If you want me to be nice to you, come work for me at night, and I'll be real nice at you." Plaintiff said that she screamed at Cantella and told him that she would never work for him again. Plaintiff reported the incident to Campion the next day. Plaintiff told Campion that "the thing with" Cantella was "sexual." She told Campion that it had been going on "for years and years and years" and she could not "take it anymore." According to plaintiff, Campion said that if she promised not to take any action, he would take care of the situation.

Plaintiff asserted that, after she reported the incident to Campion, Cantella did not bother her for six months. However, plaintiff testified that thereafter Cantella began stalking her. Plaintiff said that Cantella was not supposed to have any interaction with her but he would deliberately come in when it was time for her to "punch in" and start cursing "and stuff like that."

Plaintiff also said that, when she was on break, Cantella would "find a reason to be coming in there." Cantella would ask plaintiff what she was doing and tell her that she was not supposed to be there. She said that several times, Cantella stood close to her and, to plaintiff, it seemed that he was trying to rub up against her breasts. Plaintiff stated that this occurred about ten or fifteen times.

Plaintiff additionally claimed that, at various times, her co-workers made her job difficult by vandalizing her cleaning cart; throwing trash on her cart; removing supplies from certain areas; running water on the restroom floors; urinating and defecating on the floor of the restrooms; placing rolls of toilet paper in the toilets; and purposely dirtying areas of the building that plaintiff was required to clean.

In February 2002, plaintiff was transferred to the archives building in North Brunswick. There, plaintiff was supervised by Richard Mate, who was the senior maintenance repairman, and Gary Dalina, the supervisor of records management. Although Cantella and Campion were not present when she was working in the archives building, plaintiff testified that at times she spoke with Campion on the phone and he was very nasty to her. In March 2002, plaintiff was "written up" for sleeping in the tool room at about 12:50 p.m. Later that day, plaintiff was again discovered sleeping on the job. Plaintiff retired from her position with the County on November 29, 2002.

Plaintiff's co-workers provided some corroboration for her allegations. Guthrie Brown (Brown) provided an affidavit and testified at a deposition. Brown stated that male members of the Public Property Department would curse and make obnoxious jokes about women. Brown stated that pictures of naked women had been posted in the lunch room for years. Brown also said that he observed Cantella treat plaintiff differently from the other workers. Brown testified that he often heard racial slurs in the workplace. Brown said that he heard Cantella say to plaintiff that he could not wait to get her "ass back on nights," and he was "gonna make [plaintiff] work hard." Brown testified that he did not know whether Cantella's statements had a sexual connotation.

Rebecca Boatman (Boatman) was employed by the County as a building service worker from 1986 to 2001, and became a union shop steward in 1988. Boatman testified that plaintiff frequently complained that Cantella was harasssing her. Boatman testified that plaintiff told her that Cantella was continually following her and making sexual advances towards her. Plaintiff also told Boatman that Cantella cursed her, made fun of her, and kicked at her. On one occasion, Boatman heard Cantella say that he wanted to have sex with plaintiff. Boatman asserted that she believed Cantella was interested in plaintiff sexually. When asked what she based that belief on, Boatman said, "I can see, and I can tell."

In November 2005, the County, Cantella, and Campion filed motions for summary judgment. The motions were heard on December 16, 2005, and after hearing argument, the judge placed her decision on the record. The judge concluded that plaintiff's claims were barred by the statute of limitations and the doctrine of laches. The judge further found that plaintiff had not presented sufficient evidence to support her claims or the award of punitive damages. Orders were entered on December 16, 2005, granting summary judgment to the County, Cantella, and Campion. This appeal followed.

II.

Plaintiff first argues that the trial judge erred by concluding that her claims were barred by the applicable statute of limitations.

The statute of limitations for plaintiff's claims under the LAD is two years. Montells v. Haynes, 133 N.J. 282, 292 (1993). The same limitations period applies to plaintiff's claims for intentional infliction of emotional distress. N.J.S.A. 2A:14-2. However, the continuing violation doctrine provides an exception to the statute of limitations. "When an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the action ceases." Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999). See Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 21 (2002) (holding that the continuing violation doctrine applies to hostile work environment claims based on discrimination in violation of the LAD).

The trial judge concluded that the continuing violation doctrine did not apply in this matter. The judge found that the alleged acts of discrimination were isolated and sporadic, and did not constitute a pattern of discriminatory conduct. The judge further found that there was no act of sexual or racial discrimination within the two years prior to the filing of the complaint on May 13, 2003. The judge therefore concluded that plaintiff's claims were barred by the two-year statute of limitations.

We agree with the judge's conclusion with regard to plaintiff's claims based on the alleged acts of racial discrimination. Plaintiff has presented some evidence that members of the maintenance staff made comments of a racially insensitive and offensive nature. However, there is no evidence of any racial discrimination and harassment in the two years prior to the filing of the complaint. Therefore, the judge correctly found that the continuing violation doctrine did not apply and plaintiff's claims based on racial discrimination were barred by the applicable statute of limitations.

We disagree, however, with the judge's conclusion that plaintiff's claims of gender-based harassment are time-barred. The judge concluded the only alleged act of sexual harassment in the limitations period occurred in October 2001, when Cantella allegedly told plaintiff that he would be "real nice" to her if she returned to the night shift. The judge found that Cantella's alleged statement was not an act of sexual harassment and therefore the continuing violation doctrine did not apply.

In our view, the judge erred by granting summary judgment to defendants on this basis. Summary judgment may not issue unless there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). Here, there are genuine issues of material fact as to whether Cantella's statement was an act of sexual harassment; and whether that statement was an isolated and discrete incident or part of a pattern of sexual harassment. Plaintiff testified that Cantella's statement had a sexual connotation. Plaintiff's interpretation of that statement was based on Cantella's alleged actions over several years, which include the incident when Cantella sat on her lap in front of several male co-workers; Cantella's offer to "help" plaintiff to find another job; and the occasions when Cantella stood close to her and nearly touched her breasts.

Although defendants argue that there was nothing sexual about Cantella's remark in October 2001, plaintiff's view as to Cantella's intentions was substantiated to some degree by Boatman, who testified that she heard Cantella state that he wanted to have sexual relations with plaintiff. A fact finder, considering the totality of the evidence, and assessing the credibility of plaintiff, Cantella and other witnesses, could rationally conclude that Cantella's statement was, in fact, an act of sexual harassment and part of a pattern of sexually harassing conduct.

Furthermore, contrary to the judge's finding, Cantella's statement was not the only alleged act of sexual harassment that occurred in the limitations period. As we stated previously, plaintiff testified that after that incident, Cantella began to stalk her. She stated that Cantella had been instructed to stay away from her, but he would approach her and speak to her when she was on her breaks. Plaintiff said that Cantella would stand close to her and attempt to brush up against her breasts. If plaintiff's assertions are deemed credible, a jury could conclude that these alleged actions were acts of sexual harassment and part of a pattern of sexually harassing conduct.

We therefore conclude that the judge erred in dismissing plaintiff's claim of gender-based harassment, and her claims for intentional infliction of emotional distress, based on the statute of limitations. We conclude that there are genuine issues of material fact as to whether acts of sexual harassment occurred within the limitations period and whether those acts were isolated events or part of a pattern of sexual harassment that created a hostile work environment and caused plaintiff severe emotional distress.

These fact issues should be submitted to a jury at trial. If the jury finds that no act of sexual harassment occurred within the two years prior to the filing of the complaint, or finds that any such act was not part of a pattern of unlawful sexual harassment, the continuing violation doctrine does not apply and plaintiff's claims are time-barred.

III.

We turn to plaintiff's contention that the judge erred by concluding that her claims were barred by the doctrine of laches, which forecloses "a plaintiff from prosecuting all or part of an action based on acts occurring months or years earlier, even when those acts properly would be included in a continuing violation claim." Mancini v. Twp. of Teaneck, 179 N.J. 425, 435 (2004).

In determining if laches applies, we consider: "(1) whether an alleged act is unreasonably distant in time, (2) whether a plaintiff knew or should have known of a valid claim based on that act, and (3) whether the plaintiff's delay in filing a claim has caused undue prejudice to a defendant." Id. at 436 (citing Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 121-22, 122 S. Ct. 2061, 2077, 153 L. Ed. 2d 106, 127 (2002), and Shepherd, supra, 174 N.J. at 23).

However, "laches involves more than mere delay, mere lapse of time. There must be delay for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party." Id. at 437 (citing Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 140 (2001)).

The trial judge concluded that laches applied because plaintiff unreasonably delayed in asserting her claims and defendants had been prejudiced by the delay. In her decision on the record, the judge made the following findings:

Here, the plaintiff received a copy of the carrier's policy against sexual harassment in [1999]. Four years later she filed her complaint alleging that, among [other] things, Cantella sat in her lap in 1995. The County is prejudiced by this delay. Also, the passage of time has clouded the plaintiff's memory. She testified that [Engel] moved her cleaning cart four times in an effort to frustrate her work in 2000. [Engel] ceased his employment in the County in April of 1998. The key witnesses have passed away, including the building superintendent, George [Foiles], Dick Martin, and [the] night shift supervisor.

Plaintiff argues that the record does not support the judge's conclusions. We agree.

Defendants are not unduly prejudiced by their inability to call Foiles and Martin as witnesses. Foiles and Martin had supervisory responsibilities in the building department and could have provided relevant information regarding plaintiff and her claims. However, the County has not established that such evidence is essential, nor has the County shown that the same or similar evidence could not be provided by other witnesses.

Defendants also are not unduly prejudiced because Engel is no longer employed by the County. As we pointed out previously, Engel was initially a defendant in this case. He provided answers to interrogatories in which he stated that his residence was in Edison, New Jersey. In the absence of some evidence to the contrary, we must assume that Engel could be called as a witness in this matter.

We also find no support in the record for the judge's finding that defendants are prejudiced because plaintiff's memory has been clouded by "the passage of time." Plaintiff's testimony about certain incidents was specific, and her allegations were corroborated to some extent by Brown and Boatman. Although plaintiff's recollection of some events may be, as the County says, "imperfect," we are not convinced that the delay in filing this action has unfairly prejudiced defendants' ability to defend themselves against plaintiff's allegations. See Mancini v. Twp. of Teaneck, 360 N.J. Super. at 575, 584 (App. Div. 2003) (holding that the defendants were not prejudiced by delay in filing an action where the plaintiff stated her memory as to certain facts was not "that good" but provided "very specific" testimony on key elements of her claim), aff'd 179 N.J. 425 (2004).

Accordingly, we conclude that the judge erred in dismissing the complaint on the basis of laches.

IV.

We next consider plaintiff's contention that the judge erred by granting summary judgment to the County on her claim under the LAD based on a gender-based hostile work environment.

A hostile work environment based on sexual harassment may be created 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." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601 (1993). To prove such a claim, plaintiff must show that the conduct: 1) occurred because of her gender; 2) was severe or pervasive enough to create a hostile work environment; and 3) was so severe or pervasive as to make a reasonable woman believe that her conditions of employment were altered. Id. at 603-04.

In our view, there are genuine issues of material fact as to whether Cantella's comments and actions, and the actions of other persons on the County's maintenance crew, occurred because of her gender; were severe or pervasive enough to create a hostile work environment; and were so severe or pervasive that a reasonable woman would believe that the terms and conditions of her employment had been altered. Lehmann, supra, 132 N.J. at 608. Contrary to the judge's findings, the evidence on these issues are is not so "one-sided" that these fact issues could be decided adverse to plaintiff as a matter of law. Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

As we noted previously, plaintiff testified that: Cantella made sexual advances; Cantella sat on her lap in front of her co-workers; Cantella stalked her; Cantella approached her and at times almost touched her breasts; there were "naked pictures" which remained in the workplace for several months despite plaintiff's complaints; offensive comments of a sexual nature were written on the chalkboard of the room where employees gathered; plaintiff was the subject of workplace pranks which plaintiff says were an effort to denigrate and humiliate her because she was a woman; and plaintiff was treated differently that other maintenance workers because of her gender.

In our view, a jury, viewing the evidence in a light most favorable to plaintiff, and giving plaintiff the benefit of all favorable inferences that could be drawn from the evidence, could rationally resolve the disputed fact issues in plaintiff's favor. Simply put, a jury could rationally find that plaintiff had proven the elements of a claim based on a gender-based hostile work environment.

There is also a genuine issue of material fact as to whether the County is liable under the LAD for the alleged gender-based hostile work environment. Here, plaintiff has presented evidence that she complained repeatedly about the alleged sexual harassment and the County failed to take effective measures to address the complaints. Under Lehmann, an "employer" may be liable for compensatory damages

stemming from a supervisor's creation of a hostile work environment if the employer grants the supervisor the authority to control the working environment and the supervisor abuses that authority to create a hostile work environment. An employer may also be held vicariously liable for compensatory damages for supervisory sexual harassment that occurs outside the scope of the supervisor's authority, if the employer had actual or constructive notice of the harassment, or even if the employer did not have actual or constructive notice, if the employer negligently or recklessly failed to have an explicit policy that bans sexual harassment and that provides an effective procedure for the prompt investigation and remediation of such claims.

[Lehmann, supra, 132 N.J. at 624.]

There are genuine issues of material fact as to whether Cantella abused his supervisory authority; whether Cantella and other workers created a gender-based hostile work environment; and whether the County negligently or recklessly failed to take effective measures to promptly address plaintiff's complaints about the harassment. Again, viewing the evidence in a light most favorable to plaintiff, a jury could rationally resolve these disputed fact issues in plaintiff's favor.

We also are convinced that the judge erred by concluding that the evidence was insufficient to support a claim for punitive damages against the County under the LAD. To obtain an award of punitive damages against the County, plaintiff must show "actual participation in or willful indifference to the wrongful conduct on the part of upper management," and "proof that the offending conduct was especially egregious." Rendine v. Pantzer, 141 N.J. 292, 314 (1995). See also Lehmann, supra, 132 N.J. at 624-25. Based on the evidence that plaintiff has presented, a jury could rationally determine that persons in upper management of the County were willfully indifferent to plaintiff's repeated complaints of sexual harassment, and the County's failure to promptly and effectively address plaintiff's complaints was sufficiently egregious to warrant the award of punitive damages.

V.

Plaintiff next contends that the trial judge erred by granting summary judgment to Cantella and Campion on plaintiff's claims under the LAD for aiding and abetting the alleged unlawful gender-based harassment.

The LAD prohibits unlawful employment practices by an "employer," as that term is defined in N.J.S.A. 10:5-5e. Tarr v. Ciasulli, 181 N.J. 70, 82 (2004). A person in a supervisory capacity is not an "employer" under the LAD but may be liable under N.J.S.A. 10:5-12e if he or she aids or abets others in committing acts forbidden by the law. Id. at 83.

To prove a claim for aiding and abetting unlawful discrimination and harassment under the LAD the following must be established: "'(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.'" Id. at 84 (quoting Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 129 (3d Cir. 1999), cert. denied, 528 U.S. 1074, 120 S. Ct. 786, 145 L. Ed. 2d 663 (2000)).

We are convinced that plaintiff has submitted sufficient evidence to support her claim that Cantella aided and abetted the alleged unlawful sexual harassment. A supervisor may be liable for aiding and abetting under N.J.S.A. 10:5-12e if he breaches his duty to act against unlawful gender-based harassment. Hurley, supra, 174 F.3d at 126. This may be shown by "deliberate indifference or affirmatively harassing acts." Ibid. Here, a jury could rationally find that Cantella substantially assisted the County in its violation of the LAD by his "deliberate indifference" to the alleged sexual harassment of plaintiff and by his own "affirmatively harassing acts."

A jury also could rationally find that Campion aided and abetted the County in the alleged violations of the LAD. Plaintiff makes no claim that Campion engaged in any affirmative act of sexual harassment. However, plaintiff alleges that Campion was deliberately indifferent to her complaints and failed to take effective action to end the sexual harassment by Cantella and others on the maintenance staff. In our view, plaintiff has furnished sufficient evidence to have a jury weigh this claim.

In addition, we are convinced that the judge erred in dismissing the punitive damage claims against Cantella and Campion. Based on the evidence that we have detailed, a jury could rationally find that Cantella's and Campion's actions were "especially egregious" and therefore warrant the award of punitive damages.

VI.

Plaintiff additionally contends that the judge erred in dismissing her claims against Cantella and Campion for intentional infliction of emotional distress.

In order to prove a claim for intentional infliction of emotional distress, a plaintiff "must prove that the defendant acted intentionally or recklessly." Buckley v. Trenton Savings Fund Soc., 111 N.J. 355, 366 (1988). The defendant's conduct must be "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Ibid. (quoting Restatement (Second) of Torts, 46, comment d (1965)). A plaintiff also must show that the defendant's actions were a proximate cause of the emotional distress, and that the emotional distress is "so severe that no reasonable [person] could be expected to endure it." Id. at 366-67 (quoting Restatement, supra, 46, comment j). In our view, there are genuine issues of material fact as to whether Cantella's and Campion's conduct meet that standard.

The trial judge additionally found that plaintiff's expert report failed to establish the requisite severe emotional distress to allow recovery on this claim. However, plaintiff has presented a report from Jeffrey A. Berman, M.D., Assistant Professor of Psychiatry at Robert Wood Johnson Medical School. Berman opines that plaintiff is suffering from post traumatic stress disorder and adjustment disorder, with anxiety and depression, as a result of the alleged sexual harassment. Berman said that the prognosis for plaintiff's recovery is poor, and she is likely to require ongoing psychotherapy. A diagnosis of post traumatic stress is evidence of severe emotional distress. See Taylor v. Metzger, 152 N.J. 490, 515 (1998) (holding that post traumatic stress disorder may be a severe and disabling emotional or mental condition).

We therefore conclude that the judge erred by granting summary judgment to Cantella and Campion on plaintiff's claims for the intentional infliction of emotional distress.

VII.

Plaintiff next argues that the judge who was managing the case erred by denying her motion to compel disclosure of the records pertaining to the County's internal investigation of her complaints of sexual harassment.

In Payton v. N.J. Tpk. Auth., 148 N.J. 524 (1997), the Court considered whether the plaintiff was entitled to disclosure of the investigative files concerning the investigation of her sexual harassment complaints. The Court noted initially that such records were relevant to plaintiff's claim against her employer. The Court stated that under Lehmann, an employer may be liable on an agency theory if the employer fails to take effective steps to end sexual harassment. Id. at 536 (citing Lehmann, supra, 132 N.J. at 621-23). The Court observed that because an employer's remedial process bears upon the employer's good faith in "counteracting and attacking sexual harassment," materials relating to the internal investigation of the alleged sexual harassment are relevant to an LAD claim and are "generally discoverable." Id. at 539.

However, in Payton, the Court also found that an employer has a strong interest in maintaining the confidentiality of records of its investigations of harassment complaints, and in undertaking self-critical analysis of its activities. Confidentiality is necessary to provide encouragement to employees to come forward with allegations and information regarding sexual harassment, and to ensure that employees provide candid statements in any investigation. Id. at 542, 546. The employer's interests are not absolute but must be balanced against the plaintiff's interest in obtaining disclosure of information that may be relevant to a discrimination claim. Ibid.

In this matter, the motion judge reviewed the County's records in camera. The judge concluded that materials were not relevant because plaintiff had not alleged that the County failed to conduct a thorough or timely investigation of her complaints. The judge additionally found that disclosure of the records was not warranted because the "bulk" of these materials consisted of plaintiff's complaints or letters responding to her allegations. The judge noted that plaintiff had deposed Cantella and Campion and could have obtained the information she was seeking. In addition, the judge found that disclosure of the files would have a "chilling effect" on future investigations "as an individual would be less inclined to be forthcoming if [he or she] believed that the information in the investigation would later be disclosed."

We disagree with the judge's finding that the records are not relevant to the claims asserted by plaintiff in this case. However, under Payton, plaintiff's interest in obtaining the records must be balanced against the County's interests in confidentiality and self-critical analysis. The judge found that the documents contained information that could have been obtained by other discovery methods. In our view, the judge did not abuse his discretion in finding that the materials should not be disclosed. We therefore affirm the order denying the motion to compel production of the records, and the order denying plaintiff's motion for reconsideration of that determination.

VIII.

Plaintiff additionally argues that the judge erred by denying her motion to amend the complaint to include a claim that the County failed to conduct a thorough and effective investigation of her complaints. We are convinced that the judge did not abuse his discretion by denying the motion. R. 2:11-3(e)(1)(E).

Therefore, we affirm the grant of summary judgment to defendants on plaintiff's claims under the LAD and for intentional infliction of emotional distress based on alleged racial discrimination, but reverse the orders granting summary judgment to defendants in all other respects. We affirm the order entered on June 9, 2005, which denied plaintiff's motion to compel production of the file of the County's investigation of her complaints. We also affirm the order entered on July 22, 2005, which denied plaintiff's motion for reconsideration of the denial of her motion to compel, and plaintiff's motion for leave to amend her complaint. We remand for further proceedings.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

In April 1998, an order was entered in State of New Jersey v. Robert J. Engel, No. 636-98, which declared that Engle forfeited his position with Middlesex County "and any other public positions held by him under the government of this State or any of its administrative or political subdivisions."

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(continued)

30

A-2651-05T1

June 7, 2007