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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2798-20






                   Submitted March 28, 2022 – Decided April 19, 2022

                   Before Judges Mayer, Natali, and Bishop-Thompson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Docket No. L-2362-18.

                   David H. Kaplan, attorney for appellant (Randi S.
                   Greenberg, on the brief).

                   Castronovo & McKinney, LLC, attorneys for
                   respondents (Thomas A. McKinney and Michael K.
                   Fortunato, of counsel and on the brief).

      Plaintiff Lauren Bouziotis appeals from a May 3, 2021 order granting

summary judgment to defendants Iron Bar, LLC (Iron Bar) and Darrell

Remlinger (Remlinger) and dismissing her complaint against defendants

alleging violations of the New Jersey Law Against Discrimination (LAD),

 N.J.S.A. 10:5-1 to -50. We affirm.

      The facts are taken from the summary judgment record and are detailed at

length in a May 3, 2021 written decision by Judge William J. McGovern, III.

We provide a summary of the facts.

      Plaintiff worked part-time as a bartender for Iron Bar from September

2016 to May 2018. Approximately eighty percent of the bartenders working at

Iron Bar were female. Remlinger, a part owner of Iron Bar, was responsible for

the bar's daily operations, including scheduling. Dave Monllor worked as the

general manager of Iron Bar and reported to Remlinger.

      During her deposition, plaintiff described the atmosphere at Iron Bar.

According to plaintiff, the staff frequently joked around because "[i]t's a bar, it's

supposed to be fun."

      The genesis of plaintiff's claims against defendants stem from a series of

names Remlinger called plaintiff. Instead of using plaintiff's proper name,

Remlinger called plaintiff names used to describe a person with an oversized

posterior.1 She asserted Remlinger used the alternate names rather than her

given name when he set Iron Bar's weekly work schedule. She also contended

Remlinger wrote the alternate names on approximately six out of forty pay

envelopes plaintiff received.

      At Iron Bar, plaintiff worked Friday and Saturday nights, which were the

bar's busiest evenings and most coveted shifts.       Although plaintiff asked

Remlinger if she could work Thursday night shifts, she did not receive those

shifts. Instead, plaintiff claimed less experienced male bartenders worked on

Thursday nights.    However, the record shows female bartenders regularly

worked Thursday night shifts. Additionally, when an employee, male or female,

was unavailable to work on a Thursday night, plaintiff often substituted for the

absent employee. According to her deposition testimony, plaintiff worked at

least one Thursday night per month at Iron Bar.

      In February 2017, plaintiff complained to Monllor about Remlinger using

the alternate names rather than calling her Lauren. Plaintiff estimated she

  For purposes of this opinion, we deem it unnecessary to use the alternate names
Remlinger called plaintiff. We use the phrase "alternate names" in lieu of the
actual names spoken by Remlinger.
complained to Monllor over thirty times over the course of a year, but nothing

changed. Plaintiff admitted never asking Remlinger to call her Lauren.

      In May 2018, plaintiff submitted a letter of resignation and gave Iron Bar

two weeks' notice. Her resignation letter did not provide a reason for leaving

Iron Bar. Nor did the resignation letter mention any harassment or gender

discrimination. Plaintiff claimed to have told Iron Bar's general manager she

could no longer tolerate Remlinger referring to her by the alternate names. At

deposition, plaintiff testified Remlinger's use of the alternate names did not

interfere with her work and did not change the conditions of her employment at

Iron Bar.

      While employed at Iron Bar, plaintiff did not seek any other jobs.

Standing five foot, two inches tall and weighing one hundred and ten pounds,

plaintiff did not consider herself overweight or fat. Nor did she consider her

posterior oversized.   However, plaintiff testified Remlinger's name-calling

caused her to become self-conscious about her body image, prompting her to

join a gym, treat with a psychologist, and take medication for anxiety and


      Plaintiff's coworkers submitted certifications in support of defendants'

motion for summary judgment. In separate certifications, five employees of Iron

Bar, three men and two women, described plaintiff's inappropriate conduct while

working at the bar. According to plaintiff's coworkers, plaintiff routinely made

vile comments and used vulgar language at work. The employees certified

plaintiff's behaviors while working at the Iron Bar included cursing, telling

sexual jokes, dancing inappropriately, and posing in provocative pictures with

co-employees at Iron Bar.       Remlinger, often the target of plaintiff's own

inappropriate name-calling, considered plaintiff's comments to be in jest. When

asked about her workplace behaviors and specific instances of her own

inappropriate conduct at Iron Bar, plaintiff testified she did not recall.

      From the record, we discern the parties are familiar with the pejorative

language and boorish conduct pervading Iron Bar's atmosphere. According to

the undisputed facts of record, plaintiff frequently used inappropriate language

while working at Iron Bar. Some of the language and name-calling invoked by

plaintiff was worse than anything uttered by Remlinger.

      In her complaint, plaintiff asserted discrimination and wrongful

termination, hostile work environment, retaliation, and aiding and abetting

harassment. Judge McGovern granted summary judgment to defendants, finding

plaintiff did not establish a prima facie case of discrimination and wrongful

termination, hostile work environment, or retaliation. As a result, the judge

dismissed plaintiff's aiding and abetting harassment claim against Remlinger

and vicarious liability claim against Iron Bar.

      In viewing the facts in the light most favorable to plaintiff and considering

plaintiff's own deposition testimony, Judge McGovern found no reasonable jury

could conclude plaintiff established a prima facie case of discrimination under

the LAD as asserted in Count I. Specifically, the judge determined plaintiff

failed to show the conduct would not have occurred but for plaintiff's gender.

Male and female employees working at the Iron Bar routinely called each other

by names describing a person with a large posterior rather than using the

employee's actual name.

      Additionally, Judge McGovern found the record "devoid of any evidence

to suggest that an adverse employment action was taken against [p]laintiff." To

the contrary, the judge found "[p]laintiff voluntarily ceased her employ ment

with Iron Bar and took another bartending job closer to her home." After

tendering the letter of resignation, the judge noted plaintiff continued to work at

Iron Bar for the two week notice period "and was not terminated."               He

determined no reasonable jury "could possibly conclude that [d]efendants'

conduct was of such an egregious nature to rise to the level of being intolerable

such that a reasonable person would be forced to resign rather than continue to

endure it."

      In dismissing plaintiff's hostile work environment claims in Count II, the

judge explained those claims suffered the same lack of proof as plaintiff's

allegations in Count I of her complaint. Specifically, Judge McGovern found

"[t]he record makes clear that [plaintiff] was a participant in much of the

complained of conduct, engaging in much of the same language that [p]laintiff

now complaints of."

      In dismissing Count III, alleging retaliation under the LAD, Judge

McGovern found plaintiff admitted in her deposition that she suffered no

adverse employment action. Plaintiff presented no evidence she was terminated,

demoted, or constructively discharged from Iron Bar. Based on the evidence,

the judge concluded plaintiff voluntarily resigned and took a bartending job

closer to her home.

      Because the judge found plaintiff's LAD claims failed as a matter of law,

he correctly dismissed plaintiff's vicarious liability and aiding and abetting

claims contained in Count IV of the complaint.

      On appeal, plaintiff argues the motion judge improperly substituted his

judgment for that of the trier of fact. Plaintiff also claims she established a

prima facie case of a hostile work environment and gender-based discrimination,

culminating in constructive termination. Further, plaintiff argues Iron Bar is

vicariously liable for failing to address Remlinger's use of the alternate names

when referring to her.

      We disagree and affirm for the reasons stated in Judge McGovern's

twenty-five-page written decision. We add the following comments.

      We review the ruling on a summary judgment motion de novo, applying

the same standard governing the trial court. Conley v. Guerrero,  228 N.J. 339,

346 (2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh,  224 N.J. 189, 199 (2016)). Summary judgment will be granted when

"the competent evidential materials submitted by the parties," viewed in the light

most favorable to the non-moving party, show that there are no "genuine issues

of material fact" and that "the moving party is entitled to summary judgment as

a matter of law." Grande v. Saint Clare's Health Sys.,  230 N.J. 1, 23-24 (2017)

(quoting Bhagat v. Bhagat,  217 N.J. 22, 38 (2014)); accord R. 4:46-2(c). If "the

evidence 'is so one-sided that one party must prevail as a matter of law,'"

summary judgment is appropriate. Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc.,  477 U.S. 242,

252 (1986)).    However, we review issues of law de novo.           RSI Bank v.

Providence Mut. Fire Ins. Co.,  234 N.J. 459, 472 (2018) (quoting Templo

Fuente,  224 N.J. at 199).

      We reject plaintiff's contention there were genuine issues of material fact

precluding the entry of summary judgment. Plaintiff produced no evidence or

facts upon which a reasonable jury could conclude defendants violated the LAD

under the idiosyncratic facts in this case.

      Instead of citing any contrary evidence, plaintiff seeks to deflect the

unrefuted facts in the record by suggesting the judge viewed her allegations from

a male vantage point and thus failed to give due consideration to the evidence.

Plaintiff's aspersions regarding the judge's male perspective of the evidence are

without basis. The judge engaged in a detailed and thorough analysis of the

evidence based on the motion record.

      In his summary judgment decision, the judge focused predominantly on

plaintiff's own deposition testimony. During her deposition, plaintiff admitted

participating in certain uncouth behaviors at Iron Bar. Yet, she failed to recall

specific instances where she instigated or participated in boorish conduct and

inappropriate name-calling at Iron Bar when questioned about those behaviors

during her deposition. Nor did plaintiff submit affidavits or certifications from

Iron Bar employees refuting the certifications of five Iron Bar employees who

witnessed and described plaintiff's own unacceptable conduct and vulgar name-

calling while working at Iron Bar. Viewing the evidence in the light most

favorable to plaintiff, we agree with Judge McGovern that there are no

"genuinely disputed issues of [material] fact" with respect to plaintiff's claims,

and defendants are entitled to summary judgment "as a matter of law." Troupe

v. Burlington Coat Factory Warehouse Corp.,  443 N.J. Super. 596, 601 (App.

Div. 2016) (citing Brill,  142 N.J. at 540).

      Turning to the merits, Judge McGovern properly found plaintiff failed to

present evidence upon which a jury could reasonably conclude defendants

violated the LAD.

      To prove a hostile work environment claim, a plaintiff must "demonstrate

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 or abusive.'" Griffin v. City of East Orange,

 225 N.J. 400, 413-414 (2016) (quoting Lehmann v. Toys 'R' Us,  132 N.J. 587,

603-04 (1993)). Determining the severity or pervasiveness of the conduct:

            requires an assessment of the totality of the relevant
            circumstances, which involves examination of (1) "the
            frequency of all the discriminatory conduct"; (2) "its
            severity"; (3) "whether it is physically threatening or

            humiliating, or a mere offensive utterance"; and (4)
            "whether it unreasonably interferes with an employee's
            work performance."

            [Godfrey v. Princeton Theological Seminary,  196 N.J.
            178, 196 (2008) (quoting Green v. Jersey City Bd. of
            Educ.,  177 N.J. 434, 447 (2003)).]

      Here, plaintiff is unable to satisfy the first prong under Lehmann because

Remlinger's use of the alternate names was gender neutral. It is undisputed that

Remlinger used the alternate names when addressing both men and women

working at Iron Bar. Plaintiff also conceded Remlinger's use of the alternate

names was not gender specific. Additionally, Iron Bar employees routinely

referred to each other by the alternate names rather than their proper names.

      Even if plaintiff had satisfied the first prong under Lehmann by

demonstrating impermissible conducted based on her gender, in determining

whether the conduct created a hostile work environment, "the harassing conduct

itself must be evaluated . . . ." Id. at 197 (quoting Lehmann,  132 N.J. at 606).

"[A] hostile work environment discrimination claim cannot be established by

. . . comments which are 'merely offensive.'" Mandel v. UBS/Painewebber, Inc.,

 373 N.J. Super. 55, 73 (App. Div. 2004) (quoting Heitzman v. Monmouth Cty.,

 321 N.J. Super. 133, 147 (App. Div. 1999)). Employees are "not entitled to a

perfect workplace, free of annoyances and colleagues [they find] disagreeable."

Herman v. Coastal Corp.,  348 N.J. Super. 1, 23 (App. Div. 2002) (quoting Lynch

v. New Deal Delivery Serv. Inc.,  974 F. Supp. 441, 452 (D.N.J. 1997)).

      In reviewing Remlinger's alternate names for plaintiff, under the totality

of the circumstances, Judge McGovern correctly concluded the name-calling did

not amount to severe or pervasive conduct consistent with case law.         See

Faragher v. City of Boca Raton,  524 U.S. 775, 787-88 (1998) (holding that

merely offensive rudeness, teasing, and offhand comments do not amount to a

hostile work environment); see also Heitzman,  321 N.J. Super. at 147 ("An

employment discrimination law such as the LAD is not intended to be 'a "general

civility" code' for conduct in the workplace.").

      While Remlinger's referring to plaintiff by the alternate names was

loutish, Judge McGovern correctly applied the case law, assessing the frequency

and the severity of the alternate names directed to, and uttered by, other

employees at Iron Bar. He also appropriately considered the conduct of all

employees at Iron Bar. Further, based on the evidence in the record, Judge

McGovern found nothing indicating the use of the alternate names at Iron Bar

unreasonably inferred with plaintiff's work performance.      While the name -

calling by Iron Bar employees may have been crude and childish, plaintiff

uttered epithets directed to her fellow employees far more vulgar and

unacceptable than anything Remlinger ever stated to anyone working at Iron


       Unprofessional    behavior,   while   inappropriate,   differs   from   the

discriminatory acts actionable under the LAD. See Oakley v. Wianecki,  345 N.J. Super. 194, 203 (App. Div. 2001). Insults and impolite comments, as

evident here, are generally insufficient to establish a hostile work environment

under the LAD. Taylor v. Metzger,  152 N.J. 490, 500-02 (1998). Merely

offensive comments, such as referring to an employee by a word describing a

large backside rather than the employee's proper name as in this case, is

insufficient to sustain a hostile work environment claim. See Heitzman,  321 N.J. Super. at 147.

       On this record, we are satisfied plaintiff cannot prevail on her LAD claims

based on her own offensive and inappropriate conduct at Iron Bar. See Martinez

v. Rapidigm,  290 Fed. Appx. 521, 525 (3d Cir. 2008) (concluding, as a matter

of law, "[w]here the plaintiff contributes the same type of conduct of which he

or she is complaining to the employer's work environment . . . the plaintiff

[c]ould not find the work environment hostile or abusive."). Judge McGovern

aptly concluded no reasonable juror could find [Remlinger's alternate names for

plaintiff] to be severe and pervasive enough to make a reasonable woman believe

that the conditions of employment [were] altered and the working environment

[was] hostile or abusive.

      Judge McGovern's detailed analysis in his written decision granting

defendants' motion for summary judgment and dismissing plaintiff's complaint

with prejudice is supported by the record and governing case law. To the extent

we have not addressed any of plaintiff's remaining arguments, we conclude they

are without sufficient merit to warrant discussion in a written opinion. R. 2:11-




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