JESSICA ALLEN v. ADECCO, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1708-09T2

JESSICA ALLEN,

Plaintiff-Appellant,

v.

ADECCO, INC. and JACQUES COLES,

Defendants,

and

UNIVERSITY OF MEDICINE AND

DENTISTRY OF NEW JERSEY,

Defendant-Respondent.

_______________________________

January 27, 2011

 

Argued October 4, 2010 - Decided

 

Before Judges Grall and LeWinn.

 

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. L-5791-07.

 

Mark Mulick argued the cause for

appellant.

 

Debra M. McGarvey, Deputy Attorney

General, argued the cause for

respondent (Paula T. Dow, Attorney

General, attorney; Melissa H. Raksa,

Assistant Attorney General, of

counsel; Ms. McGarvey, on the brief).

PER CURIAM

 

Plaintiff Jessica Allen appeals from the dismissal of her complaint charging defendant University of Medicine and Dentistry of New Jersey (UMDNJ) with hostile-work-environment sexual discrimination and retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.1 She also appeals from the denial of her motion to reconsider that dismissal.

The trial judge concluded that UMDNJ was entitled to judgment because it had an "anti-harassment policy," promptly addressed plaintiff's complaint by transferring her harasser and subsequently terminated plaintiff's assignment at UMDNJ due to her job performance, not due to her complaint about harassment. Because genuine factual disputes material to those determinations preclude the award of summary judgment, we reverse and remand for further proceedings.2 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 530 (1995).

In 2006, plaintiff inquired of UMDNJ's human resources department about openings and was referred to Adecco, Inc. Adecco is an employment firm that has an office on UMDNJ's campus. Through that office, Adecco provides workers, which it calls "associates," for temporary positions at UMDNJ. On occasion, UMDNJ offers permanent employment to an Adecco associate when warranted in light of its needs and the associate's performance.

Lajuana Timothy manages Adecco's program at UMDNJ. Her office is on the campus, and she communicates with UMDNJ's managers and the Adecco associates they accept. UMDNJ notifies Timothy of openings, interviews and selects workers from the associates referred by Timothy and informs Timothy when it no longer needs or wants the services of a particular associate. Timothy also serves as Adecco's contact with the associates working at UMDNJ.

Adecco accepted plaintiff as a temporary associate in 2006. In October, she took an assignment as a receptionist at UMDNJ that was ended at UMDNJ's request after a couple of days.

Plaintiff's complaints of sexual harassment arose during her second assignment at UMDNJ. In May 2007, Timothy referred her to Kyra Sinkowsky of UMDNJ for a temporary position in an ambulatory care unit known as UMD Care. Sinkowsky's duties included supervision of about fifty-two patient service representatives (PSRs) who answered telephones, registered patients and scheduled outpatient appointments. Of the approximately fifty-two PSRs, forty-five were UMDNJ employees and the rest were Adecco associates. All of the PSRs did the same work. Sinkowsky interviewed and selected plaintiff for the position.

Jacques Coles and Yolanda Foster were the two "lead-PSRs" in UMD Care during plaintiff's employment. Coles is the person plaintiff later identified as her harasser. Coles and Foster reported to Sinkowsky. As the lead-PSRs, Foster and Coles had offices; the other PSRs had work stations that changed from day to day.

According to plaintiff, Foster and Coles were her supervisors and Sinkowsky told her that. Coles and Foster scheduled lunch periods and breaks and told the PSRs what to do. According to Sinkowsky, however, she supervised the PSRs and was the only one with authority to evaluate, discipline and remove a PSR. The lead-PSRs were expected to assist and train the PSRs, coordinate their monthly staff meetings, audit their work and assign the PSRs to perform the limited number of well-defined tasks required to register patients and keep the lines in UMD Care moving. Although the lead-PSRs had the authority to report problems with a PSR's attendance or performance, only Sinkowsky had the authority to take corrective action, evaluate performance and discipline or remove a PSR. She admitted, however, that she did not observe Coles or Foster while they interacted with the PSRs.

Plaintiff's allegations about Coles' sexually harassing conduct, which he denies, are summarized in the paragraphs that follow. Because UMDNJ was awarded summary judgment, we assume that plaintiff's descriptions of Coles' conduct are true but recognize that a jury must resolve the questions of credibility. Brill, supra, 142 N.J. at 540.

Within days of plaintiff's appointment, Coles was making sexual comments to her, and he continued making them until he was transferred out of UMD Care. Coles commented on plaintiff's clothing, asked about her dates, told her he wanted to date her, described her lips and breasts, and told her how he expected she would behave in a sexual encounter and what he would like to do with her. Coles also shared a fantasy, which involved him watching plaintiff have intimate relations with other women, and he urged her to make it a reality. In making these comments, Coles used graphic and vulgar language.

According to plaintiff, Coles did more than comment. He touched her back, thighs and buttocks, pulled on an undergarment and brushed against her.

While there is no evidence corroborating plaintiff's allegations, another PSR, Sharon Alexander, confirms that plaintiff appeared less than comfortable in Coles' presence. Moreover, Coles' offensive conduct did not always take place in the presence of others. There were times that Coles summoned plaintiff to his office. Additionally, he called her on her cell phone, said "hi sexy" and identified himself as her future husband.

Plaintiff claims that she objected to Coles' behavior several times. He rebuffed one objection by telling plaintiff he knew that she wanted him and liked what he was doing. Although she said she "did not," he was not deterred. She asked Coles why he called her to his office when he could speak to her elsewhere, and he said "I'm you supervisor; I'll ask the questions." When she told Coles she planned to report him, he replied that she would lose her job if she did and said she would not be believed because he had worked for UMDNJ for a long time and knew a lot of people. He also told plaintiff she would not get a permanent position with UMDNJ unless she had relations with him.

Out of concern that reporting Coles would lead to her termination, plaintiff did not file a complaint until June 26, 2007. That day she reached the point that she no longer wanted to be at work and did not care if she was fired, and she told Foster, the other lead-PSR, about Coles' conduct. Foster took plaintiff to Sinkowsky, who spoke with her and directed her to write a report. According to Sinkowsky, plaintiff was upset.

Coles also saw Sinkowsky on June 26. About ten minutes after plaintiff left Sinkowsky's office, Coles called Sinkowsky and went to her office. He reported that he was having problems with plaintiff's attitude and hours tardiness, too many breaks and lunches that were too long. He had not complained about plaintiff before and his complaints were "kind of a surprise" to Sinkowsky. According to Sinkowsky, plaintiff's job as a PSR was never in jeopardy. There is no other evidence of any prior problems with plaintiff's work.

Sinkowsky told Coles about plaintiff's allegations, and he was surprised. Sinkowsky advised Coles that the matter was serious, "especially given the fact that he still had an Affirmative Action investigation pending final report." That investigation was of a complaint filed by a woman who alleged that Coles had made "ageist" and "sexist" comments to her, including a statement that he liked her wearing skirts.

Upon learning about plaintiff's complaint, Coles told Sinkowsky that when a man is put in charge, women conspire to set him up. Coles said plaintiff had approached him and given him her cell phone number. Four times, Sinkowsky asked Coles whether he had asked plaintiff on a date, but she did not get an answer. Coles instead changed the subject, and he said plaintiff approached him.

Within hours of plaintiff's complaint, Coles was transferred from UMD Care to another position in the same building. By the following day, Sinkowsky had referred the matter to the office responsible for compliance with UMDNJ's policy on harassment.

Despite his transfer and the referral of plaintiff's complaint, Coles continued to give Sinkowsky information. He told Sinkowsky that plaintiff was sick, alleging that she had suggested he participate with her in a "threesome." He gave Sinkowsky a letter signed by Marta Escobar at his request. Escobar was another PSR at UMD Care and not the PSR who filed the complaint alleging ageist and sexist comments. In the letter Coles delivered, Escobar denied the truth of an old rumor that had circulated in UMD Care about Coles having inappropriately touched her in the past. That was the first time Sinkowsky had heard anything about the rumor.

On June 28, 2007, plaintiff, who was still working in UMD Care, went to Sinkowsky upset. When plaintiff went to lunch that day, Coles was outside the building and waved to her and smiled. To Sinkowsky, plaintiff appeared to have been agitated and uncomfortable about the incident. Plaintiff admitted that Coles had not said or done anything that day; she said he was standing outside and smirked when he waved, which made her uncomfortable. According to Sinkowsky, plaintiff said she was not comfortable working in that building.

After meeting with plaintiff on June 28, Sinkowsky spoke to the attorney conducting the investigation of plaintiff's complaint. They decided that if Coles was kept in his current assignment he would need to float between many clinics in the building and could not work if he did not leave his office. Accordingly, they determined that plaintiff should be transferred from UMD Care to an assignment in a building where she was less likely to run into Coles.

On June 28, 2007, plaintiff took a copy of her statement about Coles to the Adecco office. On July 2, 2007, Adecco notified plaintiff that she would no longer be working at UMD Care but would be reporting to a different unit at UMDNJ. That day, plaintiff had reported to work at UMD Care but left early; she gave two different explanations for her early departure. Plaintiff did not report to Adecco to get the information about her new assignment.

Thereafter plaintiff had a series of new assignments that were short-lived. On July 5, 2007, plaintiff notified Adecco that she was sick and would not be able to work that day or the next and did not want to start a new assignment where she might run into Coles. There was also a question as to whether plaintiff's hours would be the same, a matter of concern to her because of her need to make arrangements for her children.

On July 10, plaintiff went to Adecco and said she would accept the assignment if she could work from 8:00 a.m. until 4:00 p.m., as she had in her prior assignment. Timothy discussed plaintiff's request with UMDNJ and it agreed. After the meeting, plaintiff reported to the job at about 12:30 p.m. and left at 1:00 p.m., vowing to return at 8:00 a.m. the next day. On July 11, however, plaintiff came to work late and was either told to leave or told the UMDNJ manager that the assignment would not work because of her own personal issues.

On July 23, 2007, plaintiff started a new assignment. When she arrived, her log-in to the computer was not enabled. Although Timothy and the UMDNJ manager tried to correct the problem, plaintiff claimed she had to leave work for an emergency. According to Adecco's records, UMDNJ advised that they needed someone more reliable. According to plaintiff, she was told the job was no longer available. According to Timothy, plaintiff did not like the work conditions.

Between July 30 and August 17, 2007, Adecco had no work for plaintiff. On August 17, 2007, she was assigned as a dispatcher at UMDNJ's physical plant. On her third day on the job, plaintiff was unable to work for personal reasons. UMDNJ agreed to give her another chance, and Adecco counseled her on the importance of attendance. Thereafter, plaintiff applied for a permanent position that was not connected to either UMDNJ or Adecco. She asked for and received permission to leave early on August 30 and 31, once to register her child for school and once to attend an orientation program for the permanent job. Although plaintiff eventually opted to remain at UMDNJ rather than start a new job, on September 6, 2007, she was given notice that her position as a dispatcher would end on September 12. The reason UMDNJ gave Adecco for declining plaintiff's services was "Attendance/Punctuality." According to plaintiff, Timothy told her that she could not work at UMDNJ again. Plaintiff called Adecco about available work at UMDNJ several times between September 12, 2007 and January 3, 2008. None was assigned.

UMDNJ has a policy addressing sexual harassment but cannot confirm plaintiff's receipt of it. By its terms, UMDNJ's policy applies to all "full-time, part-time and temporary employees" and even to "volunteers" and "applicants for employment." According to Catherine Bolder, who is responsible for affirmative action and equal employment opportunity at UMDNJ, "employees at UMDNJ" are informed of and given UMDNJ's anti-harassment policy at the "new hire orientation." Bolder does not state, however, that the associates Adecco places in temporary positions and pays are among those who participate in UMDNJ's new hire orientation. Indeed, UMDNJ contended that plaintiff was employed by Adecco, not UMDNJ.

Sinkowsky thinks Adecco associates are given a copy of UMDNJ's "conduct book" but is not sure about that. According to plaintiff, she did not participate in any harassment training offered by UMDNJ, and Sinkowsky acknowledges that the Adecco associates do not go through the annual training on workplace discrimination that is required for UMDNJ employees. With respect to UMDNJ policies, plaintiff noted that when she asked about them she was told they would likely apply differently to Adecco associates.

Coles, in contrast, received UMDNJ's policies and participated in annual training on discrimination in the workplace. Nonetheless, during his deposition he was not able to answer many questions about the content of UMDNJ's policy and the procedures governing complaints.

Plaintiff received an employee handbook from Adecco, which instructs associates to contact Adecco if they are confronted with harassment or discrimination on an assignment. Plaintiff knew that she could complain to Adecco, but she was concerned that she would be fired if she did.

I

There is no question that plaintiff's allegations, if believed, establish a prima facie case of gender discrimination based on a hostile work environment. Her account shows conduct by Coles that would not have occurred but for her gender and that was sufficiently severe or pervasive to make a reasonable woman believe that the conditions of her work had been altered and the work environment was hostile. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993).

The question here is UMDNJ's liability for Coles' behavior and the legal significance of UMDNJ's prophylactic and remedial actions. Principles of agency law govern an employer's liability on claims for damages attributable to a hostile work environment. Gaines v. Bellino, 173 N.J. 301, 312 (2002); Lehmann, supra, 132 N.J. 587 at 619.3 The employer is liable if a supervisor is acting in the scope of the employment when engaging in harassment or has abused delegated authority to harass. Lehmann, supra, 132 N.J. at 619-20. In addition, an employer who is negligent in protecting against a hostile work environment a sufficiently prevalent problem in the workplace to be deemed foreseeable is liable. Id. at 621-22.

The existence of an anti-harassment policy is relevant to the third basis for employer liability, negligence. Proof of an effective policy provides some evidence of the employer's due care which is relevant to defeat a claim of negligence. Id. at 621. Conversely, the absence of effective preventative measures presents strong evidence of employer negligence with regard to a hostile work environment. Id. at 622. Thus, the presence or absence of an anti-harassment policy is relevant but not determinative of employer negligence. Id. at 621-22; see Gaines, supra, 173 N.J. at 314. Components of an effective anti-harassment policy are: a formal prohibition of harassment; formal and informal complaint structures; anti-harassment training; sensing and monitoring mechanisms for assessing the policies and complaint procedures; and unequivocal commitment to intolerance of harassment demonstrated by consistent practice. Gaines, supra, 173 N.J. at 313.

An employer's anti-harassment policy has relevance beyond negligence; it is an affirmative defense to vicarious liability imposed on an employer under principles of agency that do not require proof of negligence. Id. at 313-14. The defense is established by proof that the employer has promulgated and supported an "active anti-harassment policy." Id. at 314. To have that protection the employer must show its effectiveness with reference to relevant factors: periodic publication of the policy; an effective and practical grievance process; and training for workers, supervisors and managers on recognition and eradication of unlawful harassment. Ibid.

In this case, there are factual disputes as to whether UMDNJ's policy meets the standards necessary to defeat plaintiff's claim of negligence or her claim of vicarious liability. With respect to publication, there is a genuine factual dispute about whether UMDNJ's policy was given or made known to plaintiff. With respect to training, plaintiff received none and Coles, who was regularly trained, was not familiar with the content of UMDNJ's policy. There is no evidence of effective monitoring and sensing mechanisms; indeed, there is evidence suggesting that any mechanisms were ineffective.

If plaintiff is believed, Coles told her a complaint would be of no avail and that she would lose her temporary position if she filed one, thereby using his delegated authority not only to harass her but also to discourage her from complaining about his harassment. There is also evidence that UMDNJ had reason to question the efficacy of its anti-harassment policy on Coles' conduct but did nothing to address the issue. Although a similar, albeit less egregious, complaint about Coles was under investigation, his supervisor, Sinkowsky, admitted that she did not observe his interaction with the PSRs at all. In addition, there was a rumor about Coles touching another PSR that was circulated so widely that that Coles deemed it necessary to obtain an affidavit from the purported victim denying its truth, yet Sinkowsky knew nothing about it. On those facts, jurors could well conclude that UMDNJ's commitment to training and monitoring and to eradicating harassment was insufficient to allow it to avail itself of the case law's safe haven. See Gaines, supra, 173 N.J. at 317-18 (discussing the significance of supervisors telling an employee alleging harassment that she would not be believed and other circumstances creating an atmosphere which would lead an employee to conclude allegations of harassment were brushed aside).

We recognize that the evidence casting doubt on the effectiveness of UMDNJ's policy is not nearly as substantial as the evidence discussed in Gaines. See id. at 316-18 (discussing a supervisor holding his ears in response to an oral complaint of harassment and supervisors stating the complaint would not be believed). In this case, however, there was evidence that: plaintiff did not receive or know about UMDNJ's policy; Coles told her a complaint would be futile and lead to termination of her employment; Coles waved and smirked at plaintiff after he learned about her complaint; and rumors about offensive touching at UMD Care circulated without notice or consequence. Those disputed facts entitled plaintiff to have a jury "determine whether [UMDNJ's] anti-harassment policy provided effective and practical anti-harassment preventation and protection mechanisms that shield [it] from liability for the alleged

wrongdoings . . . or whether it was an anti-harassment policy that existed in name only." Id. at 318.

The trial judge placed great significance on UMDNJ's prompt reassignment of Coles. It is true that an element of an "effective" anti-harassment policy is one that contains remedial measures "reasonably calculated to end the harassment." Lehmann, supra, 132 N.J. at 623. But as we understand the law relevant to an effective workplace policy, provision of such a remedy does not shield the employer from liability based on its prior negligence or vicarious liability that led an employee who does not know about the employer's policy procedures to endure harassment before reporting it. Cf. Bouton v. BMW of N. Am., 29 F.3d 103, 110 (3d Cir. 1994) (concluding that an employer with an effective grievance procedure known to and eventually invoked by an aggrieved employee who received a remedy could not be found negligent or liable).

For the foregoing reasons, we reverse the grant of summary judgment in favor of UMDNJ on plaintiff's claim of a hostile work environment.

II

We turn to consider whether UMDNJ was entitled to summary judgment on plaintiff's claim of retaliation. Under the LAD, it is an unlawful employment practice or discrimination

[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 . . . any right granted or protected by this act.

 

[N.J.S.A. 10:5-12d.]

A plaintiff-employee in a protected class alleging retaliation under the LAD must establish that he or she engaged in a protected activity known to the employer and establish a causal link between his or her protected conduct and a subsequent adverse employment decision. Victor v. State, 203 N.J. 383, 409 (2010). If a prima facie showing is made, "the burden of going forward, but not the burden of persuasion, shifts to the employer to articulate some legitimate non-retaliatory reason for the adverse action." Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). The employee then must prove by a preponderance of evidence that the employer's asserted reason is a pretext and that a discriminatory reason is more likely. Ibid.

In this case, plaintiff engaged in protected activity twice. First, she complained about Coles' harassment, and he was transferred. Second, she complained again after Coles waved and smirked at her. After that complaint, she was transferred. Although there is evidence that the transfer was made to accommodate plaintiff's request, there is also direct evidence that the transfer was done for a discriminatory reason; Sinkowsky said that the decision was made because Coles could not be locked down and do his job so plaintiff was transferred to a position in a building with fewer clinics visited by Coles.

A jury could well conclude that Sinkowsky's explanation suggested a retaliatory motive and provided a basis, beyond temporal proximity, for inferring a causal link between plaintiff's complaints and her transfer to a new position. See Young v. Hobart W. Group, 385 N.J. Super. 448, 467 (App. Div. 2005) (discussing the need for evidence in addition to temporal proximity to establish causation). From plaintiff's perspective, which jurors could accept as reasonable, she complained about Coles' taunting her after she filed her first complaint, and as he predicted all along, she lost her assignment to UMD Care. Accordingly, UMDNJ was not entitled to summary judgment on plaintiff's claim of retaliatory transfer.

The order granting UMDNJ summary judgment is reversed and the matter is remanded for further proceedings.

1 The trial judge also dismissed plaintiff's claims against the alleged harasser, defendant Jacques Coles, and against the employment agency, defendant Adecco, Inc., that referred plaintiff to UMDNJ and paid her. Because plaintiff does not present any argument challenging those determinations, she has abandoned the claims. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).

2 At oral argument, plaintiff's attorney advised that his client died after the notice of appeal was filed and that her family wished to pursue her claims. On remand, those who seek to pursue plaintiff's claims must comply with the practice for the substitution of a deceased plaintiff. See R. 4:34-1(a) (pertaining to substitution of a deceased party); Campione v. Adamar of N.J., Inc., 155 N.J. 245, 269-70 (1998).

3 Although an employer is strictly liable for equitable relief under Lehmann, plaintiff's claim for equitable relief is mooted by her death. 132 N.J. at 616.