Tonique Griffin v. City of East Orange (074937) , 225 N.J. 400 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Tonique Griffin v. City of East Orange (A-32-14) (074937)
Argued December 2, 2015 -- Decided June 22, 2016
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court addresses whether the trial court erred in barring the testimony of a witness who
claimed that her superiors directed her to lie to the person investigating sexual harassment claims.
In October 2009, plaintiffs Tonique Griffin, Virginia Best, and Rosalyn Walker, employees of the City of
East Orange (City), each filed internal reports alleging that they were sexually harassed by Obed Prinvil, a
supervisor. The City Council retained an outside attorney, Dina Mastellone, to conduct an independent
investigation. Mastellone interviewed plaintiffs, Prinvil, and other City employees, including Corletta Hicks, a
personal friend of Griffin and an aide to the City’s then-Mayor, Robert Bowser (Mayor Bowser). Hicks, who had no
personal knowledge of any of the alleged incidents, informed Mastellone that Griffin and Best “have always been a
mess,” and that Griffin had a relationship with Prinvil and filed her complaint in an effort to “take money from the
City.” Hicks also portrayed Prinvil as a “phenomenal” and cautious director, who always acted professionally.
Mastellone concluded that none of the three complainants had been sexually harassed or subjected to a hostile work
environment based on their gender.
Plaintiffs sued the City, and others, under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,
alleging hostile work environment sexual harassment, quid pro quo sexual harassment, and retaliation. The City
asserted that it took reasonable care to promptly correct any harassing behavior and that it implemented, applied, and
disseminated effective anti-harassment policies and procedures. Subsequently, Hicks filed a separate, unrelated
complaint against the City with the federal Equal Employment Opportunity Commission (EEOC), and a later LAD
action against the City, Mayor Bowser, and another individual.
During Hicks’s deposition in plaintiffs’ case, she admitted that Mayor Bowser had instructed her to
undermine Griffin’s credibility and build up Prinvil’s character in her interview with Mastellone. Plaintiffs
consented to the City’s request that Hicks be barred from testifying about her EEOC complaint and lawsuit against
the City and Mayor Bowser, but the City subsequently asserted that plaintiffs should not be permitted to discuss
Hicks’s allegation that Mayor Bowser had corrupted the investigation because that allegation also was connected to
her separate litigation. The trial court agreed, ruling that the evidence would not be relevant to any issue other than
plaintiffs’ claims for punitive damages and barring plaintiffs from presenting Hicks’s testimony on any subject.
At trial, the City substantially relied on Mastellone’s investigation. At the close of evidence, the trial court
granted the City’s motion for a directed verdict as to the quid pro quo sexual harassment claim and plaintiffs’
punitive damages claim. The remaining issues were submitted to the jury, which returned a verdict of no cause as to
all claims. Judgment was entered in favor of the City.
Plaintiffs appealed, and the Appellate Division affirmed the trial court’s evidentiary determinations,
including its decision to bar Hicks’s testimony. The panel agreed with the trial court that Hicks’s testimony was not
relevant because she did not work in the same department as Prinvil and two of the plaintiffs. It further ruled that,
even if her testimony were relevant, it would have been unduly prejudicial. The Court granted certification, limited
to the question of “whether the trial court erred in barring the testimony of a witness who claimed that her superiors
directed her to lie to the person investigating plaintiffs’ claims of sexual harassment.” 220 N.J. 265 (2015).
HELD: The trial court erred when it barred the testimony of a witness who claimed that her superiors instructed her
to lie to the person investigating sexual harassment claims because the testimony was relevant to plaintiffs’ claims
for compensatory and punitive damages arising from hostile work environment sexual harassment, satisfied an
exception to the hearsay rule, and its relevance was not substantially outweighed by the risk of undue prejudice.
1. A trial court’s evidentiary determinations are entitled to deference and are reviewed for an abuse of discretion.
The Court’s analysis of the trial court’s evidentiary ruling begins with the question of whether the excluded evidence
1
was relevant under N.J.R.E. 401, and requires analysis of the connection between the statements that Hicks
attributed to Mayor Bowser and plaintiffs’ claims for compensatory and punitive damages arising from alleged
hostile work environment sexual harassment. (pp. 14-17)
2. Here, plaintiffs asserted two distinct theories of employer liability for hostile work environment sexual
harassment, first claiming that the City was directly liable for negligence, an analysis of which requires
consideration of whether City officials made a commitment that sexual harassment would not be tolerated and took
concrete steps to eradicate it. Plaintiffs’ second claim, that the City is vicariously liable for Prinvil’s alleged
conduct, similarly hinges on the conduct and attitude of the City’s senior management. As an affirmative defense to
plaintiffs’ claim of vicarious liability, the City relied on its implementation of effective anti-harassment policies and
procedures, arguing that it took reasonable steps to prevent sexual harassment and to respond to plaintiffs’
allegations and emphasizing Mayor Bowser’s leadership in its anti-discrimination initiatives. Like the hostile work
environment sexual harassment claims, plaintiffs’ claims for punitive damages also compelled an assessment of the
manner in which the City’s upper management addressed the alleged conduct. (pp. 17-21)
3. Although Hicks did not witness the incidents alleged in plaintiffs’ claims, her testimony directly related to the
attitude of the City’s upper management toward sexual harassment in general, and its response to plaintiffs’
allegations in particular. Were the jury to believe Hicks’s account of her conversation with Mayor Bowser, it might
have concluded that the City’s most senior official materially interfered in the independent investigation of
plaintiffs’ claims. This would have supported plaintiffs’ hostile work environment sexual harassment claims under
both the direct and vicarious liability theories, undermined the City’s affirmative defense, and strengthened
plaintiffs’ punitive damages claims. Consequently, the proffered evidence is directly relevant to plaintiffs’ hostile
work environment sexual harassment claims. (pp. 21-23)
4. Since Hicks’s proposed testimony about her alleged conversations with Mayor Bowser included out-of-court
statements offered to prove the truth of the matter asserted therein, the hearsay rule, N.J.R.E. 801(c), is implicated.
Thus, the Court also considers whether the evidence at issue is admissible under N.J.R.E. 803(b), which provides for
an exception to the hearsay rule for a statement by a party-opponent. Since Mayor Bowser, a senior official in the
City’s organizational structure, was the City’s agent when he allegedly spoke with Hicks about her interview with
Mastellone and the alleged statements directly concerned his responsibilities as Mayor, the hearsay statements in
Hicks’s proposed testimony fall within the exception and are admissible. (pp. 23-25)
5. Hicks’s testimony also is not barred under N.J.R.E. 403, which allows for the exclusion of relevant testimony if
its probative value is substantially outweighed by the risk of undue prejudice. Had plaintiffs been permitted to call
Hicks as a witness, subject to the City’s cross-examination, her testimony about Mayor Bowser could have been
accepted as true or rejected as incredible by the jury. Hicks’s highly relevant testimony is not inadmissible merely
because it could have negatively impacted the defense, and the trial court’s decision to bar her testimony was an
abuse of discretion. Thus, the Court reverses the Appellate Division’s judgment affirming the trial court’s dismissal
of plaintiffs’ claims for compensatory and punitive damages arising from alleged hostile work environment sexual
harassment, and remands those claims to the trial court for a new trial. (pp. 25-29)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED for further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER, JUSTICES ALBIN and SOLOMON, and JUDGE CUFF (temporarily
assigned) join in JUSTICE PATTERSON’s opinion. JUSTICES LaVECCHIA and FERNANDEZ-VINA did
not participate.
2
SUPREME COURT OF NEW JERSEY
A-32 September Term 2014
074937
TONIQUE GRIFFIN,
Plaintiff-Appellant,
v.
CITY OF EAST ORANGE,
Defendant-Respondent,
and
OBED PRINVIL, ADMINISTRATOR
REGINALD LEWIS, and CLAUDE CRAIG,
Defendants.
VIRGINIA BEST and ROSALYN WALKER,
Plaintiffs-Appellants,
v.
CITY OF EAST ORANGE,
Defendant-Respondent,
and
OBED PRINVIL, ADMINISTRATOR
REGINALD LEWIS, and CLAUDE CRAIG,
Defendants.
Argued December 2, 2015 – Decided June 22, 2016
On certification to the Superior Court,
Appellate Division.
Charles P. Cohen argued the cause for
appellants.
1
Avis Bishop-Thompson argued the cause for
respondent (DeCotiis, Fitzpatrick & Cole,
attorneys).
Deborah L. Mains submitted a brief in
support of amicus curiae New Jersey
Association for Justice (Costello & Mains,
attorneys).
JUSTICE PATTERSON delivered the opinion of the Court.
This appeal arises from a judgment in favor of the
defendant employer in a sexual harassment case. We review the
Appellate Division’s determination affirming the trial court’s
decision to bar the testimony of a fact witness.
Plaintiffs Tonique Griffin (Griffin), Virginia Best (Best)
and Rosalyn Walker (Walker), employees of the City of East
Orange (City), alleged that they were sexually harassed by a
supervisor. In the wake of plaintiffs’ internal reports of the
alleged harassment, the City retained an attorney to conduct an
investigation of their claims. Corletta Hicks (Hicks), an aide
to the City’s then-Mayor, Robert Bowser (Mayor Bowser), and a
close friend of Griffin, made statements to the investigator
that undermined Griffin’s allegations and supported the
credibility of the alleged harasser. The investigator relied in
part on Hicks’s statements in rejecting plaintiffs’ contention
that, by virtue of the supervisor’s harassment, they were
subjected to a hostile work environment.
2
Plaintiffs filed complaints under the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, alleging
hostile work environment sexual harassment, quid pro quo sexual
harassment, and retaliation, and seeking compensatory and
punitive damages. During discovery, Hicks testified at her
deposition that Mayor Bowser spoke with her before she was
interviewed by the investigator, directing her to make negative
comments about Griffin and to praise the supervisor accused of
harassment, and that pursuant to his instructions, she provided
the investigator with misleading information.
The trial court barred Hicks from testifying at trial on
the ground that her proposed testimony was irrelevant to
plaintiffs’ claims. The court granted a directed verdict
dismissing some of plaintiffs’ claims, and the jury rejected the
remaining claims. An Appellate Division panel affirmed the
trial court’s judgment. We granted plaintiffs’ petition for
certification.
We hold that the trial court erred when it barred
plaintiffs from presenting Hicks’s testimony to the jury. Mayor
Bowser’s alleged instructions to Hicks were directly pertinent
to plaintiffs’ claims for compensatory and punitive damages
arising from hostile work environment sexual harassment, and
therefore met the relevancy standard of N.J.R.E. 401. The
hearsay statements attributed to Mayor Bowser constituted
3
statements by a party’s agent or servant offered against the
party, and were thus within the exception to the hearsay rule
prescribed by N.J.R.E. 803(b)(4). Moreover, N.J.R.E. 403 did
not warrant the exclusion of Hicks’s testimony, because the
probative value of the testimony was not substantially
outweighed by the risk of undue prejudice.
We therefore reverse the Appellate Division’s judgment
affirming the dismissal of plaintiffs’ claims for hostile work
environment sexual harassment, and remand the matter to the
trial court for a new trial on those claims. We affirm the
Appellate Division’s judgment with respect to plaintiffs’
remaining claims.
I.
In 2009, when plaintiffs’ allegations arose, Obed Prinvil
(Prinvil) was the Director of the City’s Property Maintenance
Department, working in City Hall. Griffin, a zoning secretary
and clerk-typist, was assigned to the Policy Planning and
Development Division. However, she was frequently asked to
assist with the work of the Property Maintenance Department, and
was supervised by Prinvil. Best, a property maintenance
complaint investigator, worked in the Property Maintenance
Department. She reported to two managers who reported to
Prinvil. Walker served as a senior clerk-typist in the Tax
Collector’s Office; she did not work in the Property Maintenance
4
Department or report to Prinvil, but conducted tax searches in
an area adjoining his office in City Hall.
The three plaintiffs alleged that they were each subjected
to sexual harassment by Prinvil in separate incidents occurring
in City Hall in 2009. According to Griffin, on October 15,
2009, when she was in Prinvil’s office to discuss a work issue,
he closed the door, grabbed her face with his hand, and kissed
her. Best alleges that in May 2009, when she was in Prinvil’s
office to discuss a conflict that she had with another co-
worker, Prinvil kissed her. Walker contends that at various
times, Prinvil told her that he was attracted to her, proclaimed
that he loved her, and inquired whether he and she could be
“more than just friends.” She contends that in August 2009,
Prinvil attempted to kiss her while she was in his office.
Prinvil testified that he never attempted to kiss any of
the three plaintiffs. He and the City denied all of plaintiffs’
allegations of sexual harassment.
According to Hicks, she and Griffin were longtime friends
who spent substantial time together outside of work. By Hicks’s
account, she was acquainted with Best and Walker because of
their employment at City Hall, but did not know either co-worker
well. Hicks did not claim to have personal knowledge of any of
the incidents described by plaintiffs; when those incidents
allegedly occurred, Hicks was employed as a research assistant
5
in Mayor Bowser’s office, not in the Property Maintenance
Department. However, Hicks and Griffin both stated that they
discussed the alleged incident between Prinvil and Griffin
shortly after it occurred.
Griffin filed an internal complaint with the City on
October 20, 2009, describing not only her own allegations but
also those of Best and Walker. Walker also filed her internal
complaint on October 20, 2009, and Best did the same two days
later.
In the wake of plaintiffs’ allegations, the City Council
retained an outside attorney, Dina Mastellone (Mastellone), to
conduct an independent investigation. Over the course of three
days, Mastellone interviewed Griffin, Best, Walker, Prinvil, and
five other City employees, and reviewed relevant documents.
Several weeks after Mastellone’s interviews were conducted,
but prior to the completion of her investigative report, she was
asked by a representative of the City to interview Hicks. In
that interview, Hicks stated that Griffin and Best “have always
been a mess.” Hicks expressed her view that Griffin “preys on
older married men,” and said that she suspected that Griffin and
Prinvil had a “personal relationship.” Hicks also told the
investigator that Griffin had serious financial problems, and
that her complaint was filed in an effort to “take money from
the City.” Hicks reported that Griffin considered Best’s claims
6
to be a fabrication, in an attempt to “jump[] on the gravy
train.”
In her statements to Mastellone, Hicks portrayed Prinvil as
a “phenomenal director” who was cautious by nature. She said
that Prinvil was in a perpetual “damage control state” and that
he acted professionally in the workplace. Hicks stated that she
and Prinvil sometimes greeted one another with a hug, but that
he “has always drawn a space limitation with the hugs.”
In the report of her investigation, Mastellone concluded
that it was more likely than not that Prinvil engaged in
inappropriate behavior with Griffin and Walker, but that he did
not conduct himself inappropriately with Best. The investigator
stated that Prinvil was considered a professional and respected
manager. She found that Griffin, Best, and Walker would
routinely greet Prinvil with a hug, and occasionally with a kiss
on the cheek. The investigator concluded that none of the three
complainants had been sexually harassed, and that none of the
incidents subjected plaintiffs to a hostile work environment
based on their gender.
In internal disciplinary proceedings, Prinvil was charged
with “inappropriate behavior in the workplace” and
“insubordination for failure to turn over departmental records,
as directed by the City Administrator and the Mayor.” Prinvil
was suspended from his employment for three days. On the same
7
day that he approved the disciplinary charges against Prinvil,
Mayor Bowser reappointed Prinvil to a new term as Director of
Property Maintenance.
II.
In separate complaints consolidated for discovery and
trial, plaintiffs sued the City, Prinvil, and two other
individual defendants.1 As amended, plaintiffs’ complaints set
forth LAD claims against the City based on allegations of
hostile work environment sexual harassment, quid pro quo sexual
harassment, and retaliation. Among other affirmative defenses,
the City asserted that it took reasonable care to prevent and
promptly correct any harassing behavior, and that it
implemented, applied, and disseminated effective anti-harassment
policies and procedures.
After plaintiffs instituted their action, Hicks filed a
separate, unrelated complaint against the City with the federal
Equal Employment Opportunity Commission (EEOC). She later filed
an action against the City, Mayor Bowser, and another individual
defendant, alleging LAD claims of gender discrimination, hostile
work environment sexual harassment, retaliation, and disparate
1 Prior to trial, the parties executed a stipulation dismissing
the claims against the individual defendants. The City was the
sole remaining defendant at trial.
8
treatment, as well as claims based on alleged violations of her
rights to free speech and equal protection.
In a subpoena served on Hicks for a deposition and document
production in this case, plaintiffs sought documents regarding
Hicks’s EEOC complaint against the City and Mayor Bowser.
Defendants moved to bar plaintiffs from seeking information
about the EEOC complaint. The trial court granted defendants’
application. It ruled that Hicks’s deposition testimony in this
matter would not “relate[] to [Hicks’s] EEOC charge and
confidential sexual harassment investigation of Hicks’[s]
complaint.”
Subject to the limitations imposed by the trial court,
plaintiffs deposed Hicks in this action. During her deposition,
Hicks claimed, for the first time, that Mayor Bowser had spoken
with her prior to her interview with Mastellone. She testified
that Mayor Bowser told her that he had instructed Prinvil to
“keep his hands to himself.” Hicks said that the Mayor
instructed her to undermine Griffin’s credibility in her
interview with the investigator. According to Hicks, Mayor
Bowser told her to “[d]iminish the bitch’s character. You know
what to do. You know how the game is played. I want the bitch
out of here. And make sure I’m not involved in it. You know
what to do, Corletta.” Hicks testified that she assured Mayor
Bowser, “[y]es sir, I got this.”
9
Hicks also testified in her deposition that she was
“advised” to “build up [Prinvil’s] character.” She said that
she complied with that direction by accurately reporting to the
investigator that Prinvil had never said or done anything in her
presence that she considered to be unprofessional, and by
“conjur[ing] up” a statement that Prinvil was a “cautious man”
who was constantly in a “damage control state” and “always
[drew] a space limitation with the hugs.”
Prior to the commencement of trial, the City moved to bar
Hicks from testifying at trial about her EEOC complaint and
lawsuit against the City and Mayor Bowser. Plaintiffs consented
to that limitation, but contended that Hicks should be permitted
to testify before the jury about her interview with the
investigator in this matter. The motion judge reaffirmed that
Hicks would not be permitted to testify about her separate
complaint and lawsuit against the City, but did not address any
other aspect of Hicks’s potential testimony.
Prior to opening statements, the City again raised the
subject of Hicks’s proposed testimony. The City’s counsel told
the trial judge that plaintiffs should not be permitted to
discuss Hicks’s allegation that Mayor Bowser had “corrupt[ed]”
the investigation, because that allegation was connected to
Hicks’s separate litigation against the City and Mayor Bowser.
In response, plaintiffs’ counsel argued that Hicks’s testimony
10
about Mayor Bowser’s purported statements was directly relevant
to plaintiffs’ hostile work environment and punitive damages
claims.
The trial court ruled that the disputed evidence would not
be relevant to any issue other than plaintiffs’ claims for
punitive damages, which would not be considered until a later
phase of the case, if at all. The court determined that any
instruction by Mayor Bowser to Hicks could not have affected the
investigative report, because that report was favorable to
Griffin. The trial court, therefore, barred plaintiffs from
presenting Hicks’s testimony on any subject.
At trial, the City substantially relied on Mastellone’s
investigation. In her testimony, the investigator identified
Hicks’s interview as one of the factors on which she relied to
determine that Best was not credible and fabricated her
complaint.
In his testimony, Mayor Bowser described the City’s
retention of the investigator and the investigator’s
conclusions. In compliance with the trial court’s order,
Hicks’s allegation that Mayor Bowser had directed her to
disparage Griffin and promote Prinvil was not raised in the
direct or cross-examination of Mayor Bowser.
Prior to Griffin’s testimony, plaintiffs’ counsel asked the
trial court to reconsider its ruling barring Hicks from
11
testifying about her alleged conversation with Mayor Bowser.
Counsel cited the City’s reliance on Hicks’s statements in the
investigator’s report, and the fact that the jury had heard from
every witness interviewed by the investigator, other than Hicks.
The trial court denied plaintiffs’ application.
At the close of the evidence, the trial court granted the
City’s motion for a directed verdict as to Walker’s quid pro quo
sexual harassment claim and plaintiffs’ punitive damages claim.
The remaining issues were submitted to the jury. The jury
returned a verdict of no cause as to all claims, and the trial
court entered judgment in favor of the City.
Plaintiffs appealed the trial court’s judgment. An
Appellate Division panel affirmed the trial court’s evidentiary
determinations, including its decision to bar Hicks’s testimony,
as well as its directed verdict on Walker’s quid pro quo sexual
harassment claim and the punitive damages claims. The panel
concurred with the trial court that Hicks had no relevant
knowledge, because she did not work in the City’s Property
Maintenance Department, and ruled that even if her testimony had
been relevant, it would have been unduly prejudicial.
We granted certification, limited to the question of
“whether the trial court erred in barring the testimony of a
witness who claimed that her superiors directed her to lie to
the person investigating plaintiffs’ claims of sexual
12
harassment.” 220 N.J. 265 (2015). We also granted the motion
of New Jersey Association for Justice (NJAJ) to appear as amicus
curiae.
III.
Plaintiffs contend that the trial court’s evidentiary
ruling regarding Hicks gave rise to a manifest denial of
justice. They argue that Hicks’s testimony would have been
central to the question of the City’s vicarious liability for
hostile work environment sexual harassment, because it
established that the City’s upper management was not committed
to addressing sexual harassment in the workplace, and actively
interfered with an independent investigation. Plaintiffs assert
that the evidence was also relevant to their claim for punitive
damages. In addition, they contend that Mayor Bowser’s alleged
statements were admissible under N.J.R.E. 803(b)(4), as a
statement by a party’s agent or servant offered against that
party.
The City counters that the trial court properly barred
Hicks from testifying because her testimony would have been
irrelevant and highly prejudicial. It states that its primary
argument at trial was that the incidents described by plaintiffs
never occurred, not that the City had an effective sexual
harassment policy and took appropriate remedial action in
response to plaintiffs’ claims. The City stresses that Hicks
13
was not employed in the department in which the alleged
harassment occurred, that she was unfamiliar with the
environment in that department, and that she had no personal
knowledge of plaintiffs’ allegations. The City asserts that the
admission of Hicks’s testimony would have been substantially
prejudicial to it, particularly in light of Hicks’s separate
litigation, and that the evidence was properly excluded under
N.J.R.E. 403.
Amicus curiae NJAJ urges the Court to hold that Hicks’s
testimony was relevant and should have been admitted. NJAJ
argues that the City raised an affirmative defense that it had
an effective anti-discrimination policy and remedial measures,
and that Hicks’s testimony would have directly undermined that
defense. It urges the Court to reverse the Appellate Division’s
judgment.
IV.
A.
When a trial court admits or excludes evidence, its
determination is “entitled to deference absent a showing of an
abuse of discretion, i.e., [that] there has been a clear error
of judgment.” State v. Brown, 170 N.J. 138, 147 (2001) (quoting
State v. Marrero, 148 N.J. 469, 484 (1997)). Thus, we will
reverse an evidentiary ruling only if it “was so wide off the
mark that a manifest denial of justice resulted.” Green v. N.J.
14
Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (internal quotation
marks and citation omitted); see also Marrero, supra, 148 N.J.
at 484; State v. Carter, 91 N.J. 86, 106 (1982).
B.
Our analysis of the trial court’s evidentiary ruling begins
with the question of relevancy, “the hallmark of admissibility
of evidence.” State v. Darby, 174 N.J. 509, 519 (2002).
Relevant evidence is evidence “having a tendency in reason to
prove or disprove any fact of consequence to the determination
of the action.” N.J.R.E. 401. To decide whether evidence is
relevant,
the trial court should focus on “the logical
connection between the proffered evidence and
a fact in issue[,]” N.J.R.E. 401, Comment 1
(quoting State v. Hutchins, 241 N.J. Super.
353, 358 (App. Div. 1990)), or “the tendency
of evidence to establish the proposition that
it is offered to prove,” State v. Wilson, 135
N.J. 4, 13 (1994).
[Green, supra, 160 N.J. at 492.]
In accordance with N.J.R.E. 401, we consider the connection
between the statements that Hicks attributed to Mayor Bowser and
plaintiffs’ claims for compensatory and punitive damages arising
from alleged hostile work environment sexual harassment.
To prove a LAD claim for hostile work environment sexual
harassment, a plaintiff has the burden to demonstrate that “the
complained-of conduct (1) would not have occurred but for the
15
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.” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 603-04
(1993). “When the harassing conduct is sexual or sexist in
nature,” as “when a plaintiff alleges that she has been
subjected to sexual touchings or comments,” the first element
“will automatically be satisfied.” Id. at 605. However, a LAD
plaintiff is also compelled to prove that the harassing conduct,
“not its effect on the plaintiff or on the work environment,”
was “severe or pervasive.” Id. at 606 (citing Ellison v. Brady,
924 F.2d 872, 878 (9th Cir. 1991)). To satisfy the third and
fourth factors, a LAD plaintiff must show “that her working
conditions were affected by the harassment to the point at which
a reasonable woman would consider the working environment
hostile.” Id. at 610.
In this case, plaintiffs allege that the City should be
liable because they were sexually harassed by a supervisor.2 The
2For purposes of a LAD hostile work environment sexual
harassment case, an employee is a “supervisor” if he or she
either was authorized to undertake tangible employment decisions
affecting the plaintiff, or was authorized by the employer to
direct the plaintiff’s day-to-day work activities. See Aguas v.
State, 220 N.J. 494, 525-29 (2015). Although Walker did not
work in the Department managed by Prinvil, the City evidently
does not dispute Prinvil’s status as a supervisor for purposes
of any of the three plaintiffs’ LAD claims.
16
Court recognized in Lehmann that an employer can be held liable
for sexual harassment committed by a supervisor, consistent with
the principles of agency law set forth in Restatement (Second)
of Agency §§ 219(1)-(2) (hereinafter Restatement). 132 N.J. at
619-20. Restatement § 219(2) provides:
A master is not subject to liability for the
torts of his servants acting outside the scope
of their employment, unless:
(a) the master intended the conduct or the
consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty
of the master, or
(d) the servant purported to act or to speak
on behalf of the principal and there was
reliance upon apparent authority, or he was
aided in accomplishing the tort by the
existence of the agency relation.
Here, plaintiffs asserted two distinct theories of employer
liability for hostile work environment sexual harassment, each
based on the agency principles of Restatement § 219(2). The
first is a claim that the City was directly liable for
negligence under Restatement § 219(2)(b). Plaintiffs’ direct
negligence claim requires proof that the City “failed to
exercise due care with respect to sexual harassment in the
workplace, that its breach of the duty of due care caused
[plaintiffs’] harm, and that [plaintiffs] sustained damages.”
Aguas, supra, 220 N.J. at 512.
17
This Court has identified five factors to be applied to a
claim that an employer is directly liable, on a negligence or
recklessness theory, for sexual harassment in the workplace:
Those factors include[] the existence of: (1)
formal policies prohibiting harassment in the
workplace; (2) complaint structures for
employees’ use, both formal and informal in
nature; (3) anti-harassment training, which
must be mandatory for supervisors and
managers, and must be available to all
employees of the organization; (4) the
existence of effective sensing or monitoring
mechanisms to check the trustworthiness of the
policies and complaint structures; and (5) an
unequivocal commitment from the highest levels
of the employer that harassment would not be
tolerated, and demonstration of that policy
commitment by consistent practice.
[Id. at 513 (alteration in original) (quoting
Gaines v. Bellino, 173 N.J. 301, 313 (2002)).]
Accordingly, City officials’ express commitment and
concrete steps to eradicate sexual harassment -- or the lack
thereof -- are pivotal issues in plaintiffs’ direct negligence
claims.
Plaintiffs’ second hostile work environment sexual
harassment claim, an allegation that the City is vicariously
liable for Prinvil’s alleged conduct pursuant to Restatement §
219(2)(d), similarly hinges on the conduct of the City’s senior
management. Under their vicarious liability theory, plaintiffs
had the burden to show either that the alleged “harasser
purported to act on the employer’s behalf and” that “‘there was
18
reliance upon [his or her] apparent authority,’” or that “the
harasser ‘was aided in [his or her misconduct] by the existence
of an agency relation[ship]’ with his or her employer.” Aguas,
supra, 220 N.J. at 514 (alterations in original) (quoting
Lehmann, supra, 132 N.J. at 619); see also Dunkley v. S.
Coraluzzo Petroleum Transporters, 441 N.J. Super. 322, 327-29
(App. Div. 2015), certif. denied, 224 N.J. 120 (2016). Thus,
the attitude of City officials toward sexual harassment is at
the core of plaintiffs’ hostile work environment harassment
claim, under their theory of vicarious liability.
Moreover, as an affirmative defense to plaintiffs’ claim of
vicarious liability under Restatement § 219(2)(d), the City
relied on its implementation of effective anti-harassment
policies and procedures. See Aguas, supra, 220 N.J. at 524
(recognizing affirmative defense based on employer’s exercise of
reasonable care to prevent and correct promptly harassing
behavior, and employee’s unreasonable failure to take advantage
of preventive or corrective opportunities or otherwise avoid
harm); Gaines, supra, 173 N.J. at 320 (noting availability of
affirmative defense to vicarious liability claims if employer
implements effective anti-sexual harassment workplace policy);
Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 120-21 (1999)
(recognizing defense for employers “who promulgate and support
an active, anti-harassment policy”); Lehmann, supra, 132 N.J. at
19
626 (stating importance of incentive for employers not only to
provide voluntary compliance programs, but to insist on
effective enforcement of such programs).
In support of its affirmative defense to plaintiffs’
vicarious liability claims, the City argued that it took
reasonable steps to prevent sexual harassment, and to respond to
plaintiffs’ allegations when it learned of them. The City
heavily relied on the information provided by its employees to
the investigator, and emphasized Mayor Bowser’s leadership in
the City’s anti-discrimination initiatives. As a key defense to
plaintiffs’ vicarious liability theory, the City contended that
its senior management diligently worked to prevent and address
sexual harassment.
Finally, plaintiffs’ claims for punitive damages for
hostile work environment sexual harassment compelled an
assessment of the manner in which the City’s upper management
addressed the conduct alleged by plaintiffs. A “public sector
employer[] whose egregious conduct violates the LAD may be held
‘liable for punitive damages . . . only in the event of actual
participation by upper management or willful indifference.’”
Lockley v. Dep’t of Corr., 177 N.J. 413, 424 (2003) (quoting
Cavuoti, supra, 161 N.J. at 117); see also Aguas, supra, 220
20
N.J. at 529.3 Plaintiffs had the burden to prove the elements of
their claim by clear and convincing evidence. Aguas, supra, 220
N.J. at 529 (citing Lockley, supra, 177 N.J. at 432); Lehmann,
supra, 132 N.J. at 624-25). Their punitive damages claim for
hostile work environment sexual harassment, dismissed by
directed verdict prior to trial, thus implicated the conduct of
Mayor Bowser and others who comprised the City’s “upper
management.”
In that setting, we consider the relevance of Hicks’s
testimony to plaintiffs’ hostile work environment sexual
harassment claims. The trial court’s decision to bar plaintiffs
from calling Hicks as a witness was premised on her lack of
personal knowledge of the incidents of sexual harassment alleged
by plaintiffs, and her limited knowledge of the working
environment in the Department of Property Maintenance, to which
she was not assigned. In the trial court’s view, Hicks’s
testimony bore no relationship to the issues before the jury,
with the exception of plaintiffs’ claim for punitive damages --
3 For purposes of plaintiffs’ punitive damages claims, the term
“upper management” denotes the officials “responsible to
formulate the organization’s anti-discrimination policies,
provide compliance programs and insist on performance (its
governing body, its executive officers),” among others.
Cavuoti, supra, 161 N.J. at 128; see also Aguas, supra, 220 N.J.
at 529-30.
21
a claim that would be considered only in the second phase of a
bifurcated trial, if it were decided at all.
Although Hicks did not witness the incidents allegedly
involving Prinvil, her testimony directly related to the
attitude of the City’s upper management toward sexual harassment
in general, and its response to plaintiffs’ allegations in
particular. Had Hicks testified, the jury could have found her
unreliable and discounted her accusation against Mayor Bowser.
Were the jury to believe Hicks’s account of that conversation,
however, it might have concluded that the City’s most senior
official materially interfered with the independent
investigation of plaintiffs’ claims. Such a finding would have
supported plaintiffs’ hostile work environment sexual harassment
claims under both the direct and vicarious liability theories,
undermined the City’s defense to those claims, and strengthened
plaintiffs’ claims for punitive damages.
Consequently, Hicks’s testimony, if allowed at trial, would
have had the requisite “tendency in reason to prove or disprove
[facts] of consequence to the determination” under N.J.R.E. 401.
We find the proffered evidence to be directly relevant to
plaintiffs’ hostile work environment sexual harassment claims.4
4 We do not find Hicks’s testimony to be relevant to the two
remaining claims, for quid pro quo sexual harassment and
retaliation, which were pled in plaintiffs’ complaints. Neither
claim was the focus of the trial. Hicks did not claim to have
22
Accordingly, had Hicks testified at trial as she did at her
deposition, her testimony would have met N.J.R.E. 401’s
relevancy standard as to one of plaintiffs’ three LAD claims:
their claims for compensatory and punitive damages based on
alleged hostile work environment sexual harassment.
C.
Our determination of relevancy does not entirely resolve
the question of admissibility. Hicks’s proposed testimony about
her alleged conversations with Mayor Bowser included out-of-
court statements “offered in evidence to prove the truth of the
matter asserted,” and therefore implicates the hearsay rule.
N.J.R.E. 801(c). Under our Rules of Evidence, hearsay is
inadmissible “except as provided by these rules or by other
law.” N.J.R.E. 802. Accordingly, we consider an issue not
reached by the trial court or the Appellate Division: whether
the evidence at issue is admissible under N.J.R.E. 803(b), which
personal knowledge of conversations between Prinvil and any of
the plaintiffs, let alone evidence that plaintiffs were
subjected to threats of adverse employment action if they did
not accede to Prinvil’s alleged demands, or that they suffered
retaliation. Moreover, Hicks’s testimony about comments of
Mayor Bowser’s did not relate to either quid pro quo sexual
harassment or retaliatory adverse employment actions against
plaintiffs. Thus, our determination that Hicks’s testimony
would have met the relevance standard of N.J.R.E. 401 is limited
to plaintiffs’ compensatory and punitive damages claims arising
from alleged hostile work environment sexual harassment.
23
provides for an exception to the hearsay rule for a statement by
a party-opponent.
Because Mayor Bowser is not a party to the litigation, the
relevant subsection is N.J.R.E. 803(b)(4). That rule provides
that a hearsay statement made by a “party-opponent” will not be
excluded by the hearsay rule if it constitutes “a statement by
the party’s agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of
the relationship[.]” N.J.R.E. 803(b)(4); see also Spencer v.
Bristol-Meyers Squibb Co., 156 N.J. 455, 461-63 (1998) (stating
requirements of N.J.R.E. 803(b)(4)); In re Op. 668 of the
Advisory Comm. on Prof’l Ethics, 134 N.J. 294, 300 (1993)
(same); Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 4 on N.J.R.E. 803(b)(4) (2016). Thus, the
alleged statements made by Mayor Bowser are admissible if he was
an agent of the City at the relevant time, and if his statements
concern a matter within the scope of his agency or employment.
See N.J.R.E. 803(b)(4); Spencer, supra, 156 N.J. at 461-63.
Mayor Bowser was the City’s agent when he allegedly spoke
with Hicks about her interview with the investigator. Based
upon undisputed evidence adduced at trial, the Mayor was the
senior official in the City’s organizational structure. At
trial, Mayor Bowser testified that he had the authority to
discipline a department manager such as Prinvil in the event
24
that he sexually harassed another employee, that he used that
authority to approve disciplinary charges against Prinvil, and
that he was Hicks’s supervisor.
Moreover, the alleged statements concerned a matter within
the scope of Mayor Bowser’s agency for, or employment with, the
City. According to Hicks, her conversation with the Mayor took
place in his office as they strategized about an interview,
initiated by the City, to be conducted by the City’s outside
investigator with its employee. Mayor Bowser’s alleged
statements related to Prinvil and Griffin, both City employees.
Those statements directly concerned his responsibilities as
Mayor.
Thus, the hearsay statements in Hicks’s proposed testimony
meet both requirements of N.J.R.E. 803(b)(4), and are within an
exception to the hearsay rule.
D.
Finally, we consider the City’s argument that even if
Hicks’s testimony were relevant under N.J.R.E. 401 and not
subject to exclusion under the hearsay rule, it nonetheless
should be barred pursuant to N.J.R.E. 403. That rule authorizes
a trial court to exclude relevant evidence “if its probative
value is substantially outweighed by the risk of (a) undue
prejudice, confusion of issues, or misleading the jury or (b)
undue delay, waste of time, or needless presentation of
25
cumulative evidence.” N.J.R.E. 403. The party seeking the
exclusion of the evidence must demonstrate that one or more of
the factors listed in N.J.R.E. 403 substantially outweighs the
probative value of the evidence. See, e.g., State v. Wakefield,
190 N.J. 397, 434 (2007), cert. denied, 552 U.S. 1146, 128 S.
Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Koskovich, 168 N.J.
448, 486 (2001); State v. Morton, 155 N.J. 383, 453 (1998),
cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306
(2001).
In this case, the N.J.R.E. 403 factor invoked by the City
is the risk of undue prejudice. In pretrial motions, the City’s
prejudice argument was limited to a single issue: Hicks’s
potential testimony about her unrelated EEOC complaint and
litigation against the City and Mayor Bowser.5 At trial,
however, the City objected on grounds of prejudice to all of
Hicks’s potential testimony, including her statements about
Mayor Bowser’s alleged instructions regarding her interview with
the investigator. Although the trial court primarily relied on
the relevancy standard of N.J.R.E. 401 and did not conduct an
analysis under N.J.R.E. 403, it briefly mentioned prejudice as
an additional factor in its decision. Accordingly, we determine
5 The trial court’s ruling that Hicks would not testify about her
separate EEOC complaint and litigation was consented to by
plaintiffs at trial, and is not before the Court in this appeal.
26
whether the probative value of Hicks’s potential testimony about
her alleged conversation with Mayor Bowser is substantially
outweighed by the risk of undue prejudice.
As this Court has observed, when a party challenges the
admission of evidence under N.J.R.E. 403, the question is not
whether the challenged testimony will be prejudicial to the
objecting party, “but whether it will be unfairly so.”
Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 317 (1995);
see also Biunno, Weissbard & Zegas, supra, comment 5 on N.J.R.E.
403. “Evidence claimed to be unduly prejudicial is excluded
only when its ‘probative value is so significantly outweighed by
[its] inherently inflammatory potential as to have a probable
capacity to divert the minds of the jurors from a reasonable and
fair evaluation’ of the issues in the case.” Koskovich, supra,
168 N.J. at 486 (alteration in original) (quoting State v.
Thompson, 59 N.J. 396, 421 (1971)); see also State v. Long, 173
N.J. 138, 163-64 (2002). As this Court noted in the context of
a dispute over evidence suggesting that a malpractice defendant
altered medical records,
[t]o be sure, the alteration [of] evidence
would have had a substantial impact on [the
defendant chiropractor’s] case. But that is
what happens when there is powerful and
persuasive evidence. That does not mean, as
[the defendant] has argued, that it should be
excluded under N.J.R.E. 403. . . . The mere
fact that “evidence is shrouded with unsavory
27
implications is no reason for exclusion when
it is a significant part of the proof.”
[Rosenblit v. Zimmerman, 166 N.J. 391, 410
(2001) (quoting State v. West, 29 N.J. 327,
335 (1959)).]
In Kalola v. Eisenberg, 344 N.J. Super. 198, 210-11 (Law
Div. 2001), a dental malpractice case, the court considered
evidence of telephone calls allegedly made by the defendant
dentist to the plaintiff’s current treating dentist, who
criticized the work performed by the defendant. The treating
dentist was expected to testify that during these calls, the
defendant asked him to “look at things differently,” and stated
that based upon his stature in the profession, he could “make
things really difficult” for the treating dentist. Id. at 202
(internal quotation marks omitted). The Law Division rejected
the defendant’s N.J.R.E. 403 challenge to the evidence. Id. at
210-11. It noted that if the telephone calls actually occurred
as reported by the witness, the jury could either construe them
as “impermissible retaliatory behavior” or an innocuous
expression of a professional’s “natural feelings of agitation in
the heat of the moment,” but that the evidence should not be
excluded as unduly prejudicial. Id. at 211.
This case warrants a similar conclusion. Had plaintiffs
been permitted to call Hicks as a witness, subject to the City’s
cross-examination, her testimony about Mayor Bowser could have
28
been accepted as true or rejected as incredible by the jury. It
is not inadmissible, however, merely because it could have
negatively impacted the defense. Hicks’s account directly
challenged the integrity of the information the City provided to
its independent investigator, and was highly relevant to
plaintiffs’ primary LAD claim. Although the evidence was
potentially damaging, its probative value was not substantially
outweighed by a risk of undue prejudice. Hicks’s testimony,
therefore, was not subject to exclusion under N.J.R.E. 403.
In sum, we conclude that the trial court’s decision to bar
Hicks’s testimony about her alleged conversation with Mayor
Bowser, prior to her interview with the City’s investigator, was
an abuse of discretion. That testimony should have been
admitted into evidence at trial.
V.
We affirm in part and reverse in part the judgment of the
Appellate Division. We concur with the Appellate Division that
the trial court properly dismissed plaintiffs’ claims for quid
pro quo sexual harassment and retaliation under LAD. We reverse
the Appellate Division’s judgment affirming the trial court’s
dismissal of plaintiffs’ claims for compensatory and punitive
damages arising from alleged hostile work environment sexual
harassment, and remand those claims to the trial court for a new
trial.
29
CHIEF JUSTICE RABNER, JUSTICES ALBIN and SOLOMON, and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion.
JUSTICES LaVECCHIA and FERNANDEZ-VINA did not participate.
30