KATHY DIXON v. NEW JERSEY DEPARTMENT OF CORRECTIONS ADULT DIAGNOSTIC AND TREATMENT CENTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0438-07T30438-07T3

KATHY DIXON and MICHELLE

RICKETTS,

Plaintiffs-Appellants,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

ADULT DIAGNOSTIC AND TREATMENT

CENTER, OFFICER ANDREW BOOKER,

CHIEF BARNEY COHEN, SERGEANT STEVEN

RUSSO and SERGEANT JERRY COLLINS,

Defendants-Respondents.

______________________________________________

 

Submitted October 29, 2008 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2889-05.

Panitch & Rachinsky, attorneys for appel-lants (Richard S. Panitch, of counsel; Mr. Panitch and John J. Rachinsky, on the brief).

Anne Milgram, Attorney General, attorney for respondents New Jersey Department of Correc-tions, Adult Diagnostic and Treatment Center, Chief Barnet Cohn, Sergeant Steven Russo and Sergeant Jerry Collins (Melissa H. Raksa, Deputy Attorney General, of counsel; Robert E. Kelly, Deputy Attorney General, on the brief).

Respondent Officer Andrew Booker has not filed a brief.

PER CURIAM

In this appeal, we consider whether the trial judge properly granted summary judgment in favor of defendants in this action, which was based on, among other things, the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Although we largely affirm, we vacate that part of the order under review that granted summary judgment on plaintiffs' claim that a hostile work environment was created through defendants' failure to timely address defendant Booker's allegedly harassing conduct. However, because plaintiffs failed to provide sufficient clarity regarding their general sworn statements, we remand for further proceedings on defendants' summary judgment motion on that claim.

Plaintiffs brought this action against defendants New Jersey Department of Corrections (DOC), the Adult Diagnostic and Treatment Center (ADTC), Chief Barnet Cohn, Sergeant Steven Russo, Sergeant Jerry Collins, and Officer Andrew Booker, alleging a hostile work environment, sexual harassment, race discrimination, unlawful retaliation, aiding and abetting sexual harassment and unlawful retaliation, intentional and negligent infliction of emotional distress, and breach of contract. After the completion of discovery, all defendants except Booker moved for summary judgment. Plaintiffs opposed the motion and, on the return date, voluntarily dismissed their intentional and negligent infliction of emotional distress and breach of contract claims. The trial judge granted the motion for reasons set forth in an oral decision and entered an order dismissing all aspects of the complaint.

In appealing, plaintiffs argue that the trial judge mistakenly resolved factual disputes and made credibility findings contrary to summary judgment precepts. With the exception of one of plaintiffs' claims -- that the moving defendants allegedly failed to timely address Booker's sexual harassment, thus creating a hostile work environment -- we find plaintiffs' arguments have insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm the dismissal of all plaintiffs' other claims. We vacate the order of summary judgment on the hostile work environment claim for the following reasons.

Summary judgment is only appropriate when, in assuming the truth of all the evidential material presented by the opponent in light of all reasonable inferences that enhance the opponent's view, the movants are entitled to a judgment in their favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). As a result, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. When applying these principles to LAD claims, summary judgment should be granted only "where no rational juror could conclude that the plaintiff marshaled sufficient evidence to satisfy each element of a prima facie cause of action." Godfrey v. Princeton Theol. Seminary, 196 N.J. 178, 197 (2008). See also Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001); Cameco, Inc. v. Gedicke, 299 N.J. Super. 203, 212 (App. Div. 1997), aff'd as modified, 157 N.J. 504 (1999). In reviewing an order granting summary judgment, we are bound by the same standards that bound the trial court. Prudential Prop. & Cas. Co., Inc. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

In examining the factual record presented by way of the moving and opposing papers as to the hostile work environment claim, the trial judge applied the four-prong test described in Lehman v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993), which requires that a plaintiff show that "the complained of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile and abusive." In defining the scope of such a claim, the Court held in Lehman, and explained in Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 120-21 (1999), that "employers who promulgate and support an active, anti-harassment policy" should be entitled to a "safe haven" from vicarious liability resulting from the harassing conduct of an employee. See also Gaines v. Bellino, 173 N.J. 301, 303 (2002). But, the Lehman Court also recognized that although the existence of "effective preventive mechanisms" provides evidence that an employer acted with due care, such mechanisms are not necessarily dispositive of negligence or the absence thereof. 132 N.J. at 621.

In this case, plaintiffs alleged that defendant Booker engaged in sexually harassing conduct and provided ample evidence in that regard. There is also no dispute that the DOC had an active anti-harassment policy. Indeed, in November 2003, when plaintiff Ricketts reported to defendants Russo and Collins that defendant Booker had harassed her, she was directed to ADTC headquarters to file a formal complaint. She provided her complaint to the Equal Employment Division (EED) of the DOC on or about November 7, 2003; within two weeks, the EED's acting director wrote to Ricketts outlining the investigation that would be undertaken in response to her complaint. The EED undertook a thorough investigation by interviewing multiple witnesses. Although it had difficulty obtaining plaintiff Dixon's response to its inquiries, the EED eventually interviewed her. Based upon this thorough investigation, ADTC's administrator suspended Booker, and the suspension was upheld following a departmental hearing.

Certainly, defendants' handling of the situation following plaintiff Rickett's complaint to the EED was more than adequate. But the record is unclear as to whether a hostile work environment existed and thrived prior to that time. To suggest that the EED investigation was "too little, too late," plaintiffs alleged that their supervisors had previously failed to respond to Booker's alleged misconduct. In this regard, they argue that prior to the November 2003 investigation, some of Booker's sexually-harassing conduct was witnessed by their supervisors -- defendants Russo and Collins -- who took no action. In opposing summary judgment, plaintiffs provided a joint certification in which they swore to the following:

8. Defendant Booker bragged to other[s] that he wanted to "fuck the female Judge," also commented on female Judges' breasts and legs in the presence of Officer Ricketts. He attempted to touch the behind of Officer Ricketts in front of Officer Dixon. Defendant Booker put his arm around Officer Ricketts in front of Defendant Sergeant Russo.

9. Defendant Booker made sexual comments about Officer Ricketts in front of Sergeant Russo. Defendant Booker made sexual comments regarding the female Judge in front of Sergeant Russo. Defendant Booker commented to Officer Ricketts "you got a nice ass" in front of Defendants Sergeant Collins and Sergeant Russo, this happened on more than one occasion.

. . . .

11. Officer Ricketts observed Officer Booker begging [D.C.] for "pussy" telling her how nice her ass looked to him in front of Sergeant Russo and other Officers.

12. Plaintiff Ricketts observed Ser-geant Russo refer to [D.C.] as a bitch in front of other Officers.

. . . .

18. Plaintiff Ricketts did not have confidence in her Supervisors because Defendants Collins and Russo were present when Defendant Booker made sexual comments and engaged in unsolicited touching Plaintiff Ricketts and other women in their presence and took no action against it.

. . . .

21. Prior to May 2003, Plaintiff Dixon overheard that Defendant Booker harassed other women in front of Supervisors.

22. Plaintiff Dixon observed Defendant Booker talk about other female Officers' buttocks in Defendant Sergeant Collins' presence.

. . . .

29. Defendant Booker commented on Plaintiff Dixon's nipples in front of Defendant Sergeant Russo and Collins.

. . . .

36. Plaintiff Dixon did not believe she could report this matter to her Supervisors as she observed Defendant Collins and Russo, her immediate Supervisors, witnessing the actions of Defendant Booker and doing nothing about them.

[Emphasis added.]

We share the trial judge's concern about the lack of specificity in these assertions. Only in one instance -- paragraph 21 -- did plaintiffs suggest a date for any of these alleged occurrences. We are also chagrined that despite plaintiffs' arguments in the trial court -- and here -- that their depositions provide further support for these assertions, plaintiffs failed to provide citations to the deposition transcripts; indeed, plaintiffs failed to include these deposition transcripts in their appendix.

In employing a necessarily cautious approach to applications for summary judgment, we are satisfied that plaintiffs' less-than-specific allegations, which were not correlated to their deposition testimony, should have triggered the trial judge's "liberal use of [his] comprehensive power to continue the motion, with conditions if necessary, . . . to remove doubts as to whether there [were] disputed questions of material facts." Templeton v. Borough of Glen Rock, 11 N.J. Super. 1, 4-5 (App. Div. 1950) (Jacobs, J.). Faced with the existing record, we cannot draw any safe conclusions about whether, in assuming the truth of plaintiffs' sworn but general statements, a rational trier of fact could reject defendants' claim to a "safe haven" from vicarious liability for Booker's misconduct. Because we share the judge's consternation over plaintiffs' failure to provide specificity, we vacate the summary judgment on the hostile environment claim and remand for further proceedings. Following today's judgment, the trial judge should provide plaintiffs with an opportunity to amplify their allegations in conformity with what we have said; the judge should also provide defendants with an opportunity to respond.

 
Affirmed in part; vacated in part. We do not retain jurisdiction.

Although this defendant is referred to in the complaint and other pleadings as "Barney Cohen" we discern from the record that his name is "Barnet Cohn."

Defendant Booker never answered the complaint or otherwise appeared in the action. The trial judge correctly observed that his ruling benefited only the moving defendants and that the order would be so limited. However, the order under review dismissed all claims as to all defendants and is, thus, a final and appealable order.

(continued)

(continued)

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A-0438-07T3

November 19, 2008