JENNIFER BARNES v. STATE OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0573-07T30573-07T3

JENNIFER BARNES,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

NEW JERSEY DEPARTMENT OF

CORRECTIONS and EAST JERSEY

STATE PRISON,

Defendants-Respondents,

and

LIEUTENANT DANIEL MURRAY,

Defendant.

 
________________________________________________________________

Submitted October 15, 2008 - Decided

Before Judges Parker and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1777-05.

John G. Cito, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondents (Melissa H. Raksa, Deputy Attorney General, of counsel; Nicole S. Morgan, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Jennifer Barnes appeals from an order entered on June 19, 2007, dismissing her complaint against defendants the State of New Jersey (State), the Department of Corrections (DOC) and East Jersey State Prison (EJSP) (collectively the State defendants) for sexual harassment, discrimination, assault and hostile work environment. We affirm.

I

The facts relevant to this appeal are as follows. Plaintiff is a corrections officer employed by the DOC since October 15, 1994, and assigned to EJSP. She alleges that her superior officer, Lieutenant Daniel Murray, made a number of sexual advances to her between September 28 and October 25, 2003.

On March 23, 2004, plaintiff filed a complaint with the Equal Employment Division (EED) of the DOC. The charges were investigated and after a hearing on June 1, 2004, the hearing officer found that Murray had created a hostile work environment, sexually harassed plaintiff and violated the State's policy against harassment and discrimination. The hearing officer recommended that Murray be disciplined with a thirty-day suspension. On July 28, 2004, the EED affirmed the hearing officer's decision and imposed the thirty-day suspension.

Plaintiff filed a verified complaint on March 4, 2005. She alleged that defendants violated 42 U.S.C. 1981, 1983 and 1985 of the Federal Civil Rights Act. With respect to New Jersey law, plaintiff alleged violations of the New Jersey Constitution; the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and public policy. She also alleged the tort of outrage. Plaintiff claimed that after she filed her sexual harassment complaint with the EED, she was subject to a disciplinary charge that had no merit. After discovery, the State defendants moved for summary judgment. The motion was granted and, shortly thereafter, plaintiff settled with Murray, the individual defendant.

In its written decision granting summary judgment in favor of the State defendants, the trial court found that

Plaintiff has failed to show that there is a contract at issue in this case or that she was denied any rights to grievances or appeals for any actions. 42 U.S.C. 1981; Santiago v. City of Vineland, 107 F. Supp. 2d 512, 531 (D.N.J. 2000).

Defendants are also correct in noting the lack of evidence to support a prima facie case under 1983 as there is nothing in the record to indicate that the State defendants acted with discriminatory intent. "Discriminatory intent 'implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group.'"

Likewise, there is no evidence of a conspiracy to discriminate. "Since 'conclusory allegations of generalized racial bias do not establish discriminatory intent,'" plaintiff's claim as to this count of the Complaint should also be dismissed. White v. Williams, 179 F. Supp. 2d 405, 420 (D.N.J. 2002).

. . . .

[W]here a plaintiff is able to establish a hostile work environment brought on by sexual harassment, plaintiff bears the extra burden of establishing the employer's liability. The Lehmann [v. Toys 'R' Us, 132 N.J. 587 (1993)] Court held that when an employer has a policy in place that results in prompt and remedial action, the employer will not be liable for compensatory damages for the harassing conduct of its employee. Id. at 624. Cavuoti v. New Jersey Transit Corp. [ 161 N.J. 107 (1999)] echoed this analysis holding that employers who have in place and enforce such policies should be entitled to "safe haven" from vicarious liability for the conduct of their employees where the policy is periodically published and encompasses an effective and practical grievance process as well as training program for employees concerning how to recognize and eliminate unlawful harassment. 161 N.J. 107, 120-21 (1999). See also Gaines v. Bellino, 173 N.J. 301 (2002).

In essence, the trial court found that the DOC had in place a viable and operative policy against sexual harassment, that plaintiff's grievance and complaint to the EED were dealt with promptly and fairly, and that upon the EED's finding of sexual harassment Murray was disciplined with a thirty-day suspension. Accordingly, the trial court found that the State, the DOC and EJSP had no liability as plaintiff's employers.

In this appeal, plaintiff argues: (1) the trial court erred in granting the State's motion for summary judgment on the LAD claims; (2) the State is not entitled to summary judgment on the 42 U.S.C. 1983 claims; and (3) punitive damages should not have been dismissed against the State.

II

Plaintiff initially argues that the trial court improperly granted summary judgment in favor of the State "even though the [d]efendant State did not enforce the disciplinary penalties upon the offending employee." In her complaint, plaintiff alleged that the State violated the LAD in that it "created, maintained, condoned and/or supported a racially and sexually hostile work environment and retaliatory work environment for Black female employees, and by refusing to take prompt and effective action to remedy this hostile work environment." Plaintiff maintains that defendant created this hostile work environment by not handling her complaint promptly and by not enforcing Murray's sentence.

"In Lehmann v. Toys 'R Us, Inc., 132 N.J. 587 (1993), [the New Jersey Supreme] Court formulated the basic standard for determining whether acts of harassment in the work place constitute invidious discrimination in violation of the LAD." Taylor v. Metzger, 152 N.J. 490, 498 (1998). Because the LAD prohibits discrimination against individuals based on "race, . . . color, . . . sex, [and] gender identity or expression," N.J.S.A. 10:5-3, the test articulated by the Court in Lehmann, although framed in terms of a female plaintiff alleging sexual harassment, can be extrapolated to include not only gender and sexual harassment, but also race and racial discrimination. See Taylor, supra, 152 N.J. at 498.

To establish a hostile work environment claim, a "plaintiff must allege conduct that occurred because of her sex [or race] and that a reasonable woman [or African-American] would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment." Lehmann, supra, 132 N.J. at 603. In Lehmann, the Court articulated a four-prong test to determine whether a hostile work environment exists: "The complained-of conduct (1) would not have occurred but for the employee's gender [or race]; and it was (2) severe or pervasive enough to make a (3) reasonable woman [or African-American] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Id. at 603-04 (emphasis added); Taylor, supra, 152 N.J. at 498.

Further, "[a]n actionable claim under LAD based upon a hostile work environment frequently arises out of repeated incidents that take place over time and by their cumulative effect make it unreasonable and unhealthy for the plaintiff to remain in that work environment." Caggiano v. Fontoura, 354 N.J. Super. 111, 126 (App. Div. 2002). Under certain circumstances, however, "a single incident [of harassment may] be so severe that it would, from the perspective of a reasonable woman, make the working environment hostile," though this would be "a rare and extreme case." Lehmann, supra, 132 N.J. at 606-07. For example, the following single incidents have met the hostile work environment test: "A single utterance of a [racial] epithet" when made by a supervisor, Taylor, supra, 152 N.J. at 501, 503; a single encounter with a supervisor who made a racially and sexually derogatory comment to an employee and touched her in a sexual manner, Flizack v. Good News Home for Women, Inc., 346 N.J. Super. 150, 156, 159 (App. Div. 2001).

Here, plaintiff maintains "that there was a severe pervasive harassment . . . in that [defendant] was an informed employer who took ineffective measures to stop the conduct and as such sent a message that the harassment is acceptable and that the management supports the harasser." Plaintiff maintains that after she filed the sexual harassment complaint, Murray continued as her supervisor and the State did not enforce the thirty-day suspension against him. In her deposition, however, plaintiff testified that Murray was not, in fact, her supervisor after her complaint, but rather just a supervisor at EJSP.

The trial court found that the State's sexual harassment policy shielded the State defendants from liability. Indeed, plaintiff utilized the policy's grievance procedure in filing her complaint against Murray with the EED in March 2004. The record clearly indicates that the State promptly undertook an investigation, determined that Murray had violated the sexual harassment policy and disciplined him.

The trial court's finding is consistent with Lehmann's analysis of employer liability, 132 N.J. at 623-25, and Cavuoti, in which the court noted that

A company that develops policies reflecting a lack of tolerance for harassment will have less concern about hostile work environment or punitive damages claims if its good-faith attempts include periodic publication to workers of the employer's anti[-]harassment policy; an effective and practical grievance process; and training sessions for workers, supervisors, and managers about how to recognize and eradicate unlawful harassment.

[Cavuoti, supra, 161 N.J. at 121].

The court in Cavuoti further found that it had "afforded a form of a safe haven for employers who promulgate and support an active, anti-harassment policy." Ibid.

The evidence before the trial court on the summary judgment motion demonstrated that the State defendants had a well-publicized policy in effect at the time and that the policy provided for a grievance procedure. Moreover, the State defendants acted promptly and remedially after plaintiff reported her claim. She submitted her complaint on March 22, 2004, and two days later, on March 24, the EED sent her a letter acknowledging receipt of the complaint and explaining the investigation process. On May 17, 2004, the EED recommended disciplinary action against Murray and on May 19, a preliminary notice of disciplinary action was issued to him. On June 1, 2004, the hearing officer found Murray guilty of the charges and recommended the thirty-day suspension. On July 28, 2004, the EED affirmed the hearing officer's decision and imposed the suspension. We agree with the trial court's finding that the State's response to plaintiff's complaint was both prompt and remedial.

Plaintiff further claims that the State did not enforce the thirty-day suspension against Murray because he was permitted to work during that time. Murray and the State acknowledge that he did work during the thirty-day suspension but that he utilized seventeen of his compensatory days, seven vacation days and six non-pay status days to complete the suspension period. Consequently, Murray's use of compensatory and vacation days during the suspension period deprived him of the ability to utilize those days on another occasion. Consequently, he was penalized by the loss of that time. In her deposition, plaintiff acknowledged that compensatory time can be used to cover suspension time.

Plaintiff further argues that summary judgment was prematurely granted because Murray's appeal of his suspension was still pending before the Office of Administrative Law (OAL). Murray's suspension was not stayed pending appeal, however, and the pendency of the appeal before the OAL does not diminish the prompt, remedial steps taken by the State in response to plaintiff's EED complaint.

III

Plaintiff next addresses the federal claims and argues that the trial court erred in granting summary judgment on count two of the complaint alleging violations of 42 U.S.C. 1983. During oral argument on the summary judgment motion, however, plaintiff specified that the federal claims were to remain only against Murray, indicating that they were withdrawn against the State defendants. Such an assertion before the trial court constitutes a waiver of the claim and we will not address the argument on appeal.

If we were to address the merits of the 1983 claim, however, we find no error in dismissal of that count. Under 42 U.S.C. 1983, only a "person" is subject to liability for discriminatory conduct. Neither the State nor its agency is a "person" within the meaning of 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) (holding that a government entity is not a "person" within the meaning of 1983). Plaintiff cannot, therefore, state a cause of action against the State defendants under 1983.

IV

Finally, plaintiff argues that the trial court prematurely dismissed the punitive damages claim because Murray's appeal is still pending before the OAL. As we have discussed previously, that appeal does not affect plaintiff's claims because the evidence clearly supports the trial court's finding that the State defendants dealt with plaintiff's complaint promptly and disciplined Murray in accordance with Lehmann and Cavuoti.

We have carefully considered all of plaintiff's arguments and we are satisfied that the trial court properly granted summary judgment in favor of the State defendants. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Affirmed.

(continued)

(continued)

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A-0573-07T3

December 17, 2008