KC DYER VS. NEW JERSEY TURNPIKE AUTHORITY (L-1273-14, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4313-17T3
KC DYER,
Plaintiff-Appellant,
v.
NEW JERSEY TURNPIKE
AUTHORITY and THOMAS
MCGRATH,
Defendants-Respondents.
__________________________
Argued telephonically March 24, 2020 –
Decided July 24, 2020
Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-1273-14.
Richard Armen Mc Omber argued the cause for
appellant (McOmber & McOmber, PC, attorneys;
Richard Armen Mc Omber, Matthew Allen Luber, and
Elizabeth A. Matecki, of counsel and on the briefs).
Thomas Christoph Bigosinski argued the cause for
respondent New Jersey Turnpike Authority (McElroy,
Deutsch, Mulvaney, & Carpenter, LLP, attorneys;
Thomas Christoph Bigosinski, of counsel and on the
brief).
Robyn Beth Gigl argued the cause for respondent
Thomas McGrath (GluckWalrath LLP, attorneys;
Robyn Beth Gigl, of counsel and on the brief; Fay L.
Szakal, on the brief).
PER CURIAM
In this employment discrimination matter, plaintiff KC Dyer appeals from
an April 24, 2018 order granting summary judgment in favor of defendants New
Jersey Turnpike Authority (NJTA) and Thomas McGrath and dismissing with
prejudice plaintiff's claims of hostile work environment sexual harassment and
retaliation, in violation of the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -42, and intentional infliction of emotional distress (IIED).
Plaintiff's allegations centered on her discomfort arising from her supervisor
McGrath's behavior toward her for several years, beginning in 2004.
In dismissing plaintiff's LAD claims, Judge Vincent Le Blon determined
that certain of plaintiff's claims were barred by the two-year statute of
limitations, but regardless, the periodic friction between plaintiff and McGrath
was not severe or pervasive enough to alter the conditions of plaintiff's
employment. The judge further concluded that plaintiff failed to identify acts
of retaliation and failed to make a prima facie showing of IIED. On appeal,
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plaintiff contends that the judge erred in dismissing each of her claims. Finding
no merit in these arguments, we affirm.
I.
A.
We discern the following facts from the record, viewing them in the light
most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 523 (1995). In 2002, plaintiff began working as a data clerk in the finance
department of the New Jersey Highway Authority and reported to Stellanie
Callanan. In 2004, the New Jersey Highway Authority merged with the NJTA.
During the same year, plaintiff was promoted to the position of data analyst,
which involved auditing toll collectors and completing some clerical work, and
she began reporting to McGrath, the Audit Operations Supervisor, and three
supervisors under McGrath: Laurie Iko, Joanne Jackson, and Lynette Gonier .
McGrath reported to the Financial Manager, Michael Schwartz, and Schwartz
reported to the head of the finance department, Donna Manuelli.
In March 2008, plaintiff was invited to interview for a higher paying
position in the maintenance department. She emailed McGrath about the
interview and added, "I'd REALLY like to stay within this department but I
NEED more money, do you know of anything else coming up that I would
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qualify for making more money working for this department?" According to
plaintiff, she wanted to stay in the department because she "was a team player"
and "worked with [her] co[]workers well." Despite her interest in the position,
plaintiff stated she did not get the job because it "was already spoken for."
From approximately December 22, 2009 through January 11, 2010,
plaintiff took a short leave of absence, after her physician certified to diagnoses
of anxiety, panic attacks, and insomnia.
In August 2011, another position in the maintenance department became
available, but plaintiff declined. Later that month, plaintiff emailed Schwartz
and McGrath, expressing her interest in a promotion they had recently discussed.
She wrote, "I know I'm happy here☺ I'd love to stay and grow with the finance
department." Two months later, Schwartz wrote to Manuelli about an audit data
specialist position. He and McGrath recommended plaintiff for the position,
from among two other internal candidates, because plaintiff "ha[d] proven
herself as a valued employee," and she had "proficient computer skills and . . .
superior work histories." At the end of November, Manuelli awarded plaintiff
the promotion.
In her new position, plaintiff continued to work under McGrath until she
took a medical leave of absence in May 2013. She returned to NJTA in October
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of that year, and she has continued working in the same position, although upon
her return, her seat was moved to a different floor, and she was instructed to
report to Callanan instead of McGrath. Plaintiff was advised that McGrath had
been instructed not to communicate with her, and McGrath honored that
instruction. McGrath has since retired from NJTA.
B.
NJTA's "Equal Employment Opportunity and Non-Discrimination
Harassment/Retaliation Policy," effective November 2, 2004, expressly
prohibits discrimination "against any individual in compensation or in terms,
conditions or privileges of employment based upon sex" or seventeen other
attributes. NJTA expects all employees "to accept these principles and to reflect
their spirit in everyday relationships with fellow staff members." It further
declares that all NJTA employees "have the right to be free from sexual
harassment . . . [and] inappropriate conduct and communications." The policy
incorporates NJTA's "Sexual Harassment" policy, effective January 11, 1993
and revised in March 2004, which defines sexual harassment and provides
specific examples of prohibited conduct. Any employee subjected to harassment
or discrimination in violation of these policies, or witnessing such an
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occurrence, is directed to report the incident in accordance with the procedures
outlined in the policies.
According to Mary Elizabeth Garrity, NJTA's Director of Human
Resources, these policies are provided to all employees, and all employees must
attend anti-harassment training sessions every two years to address diversity
awareness and the prevention of discrimination, harassment, and retaliation.
Plaintiff does not dispute that she received copies of the policies or that she has
participated in required trainings.
C.
From 2005 through 2011, Schwartz issued several directives to
department employees regarding personal and social interactions during work
hours. In November 2005, he issued a memorandum to reinforce the rules
prohibiting "personal conversations and gatherings at another employee's desk"
to avoid disturbing coworkers and requiring employees to inform their
supervisor if they needed to leave their desks for an extended period. This
directive was prompted by "several complaints regarding excessive personal
conversations and extended breaks." These problems were not permanently
corrected, so Schwartz issued a similar memorandum in July 2007.
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In November 2009, Schwartz distributed another memorandum,
implementing several new rules: All employees were required to take their
fifteen-minute morning and afternoon breaks at the same time and their one-
hour lunch break at one of two designated times; all in-office celebrations could
occur only during a break or lunch hour; and at all other times, employees were
not permitted to talk with friends or family.
In August 2011, Schwartz issued yet another memorandum prohibiting
employees from allowing employees from other sections to be present in their
workspaces, unless the interaction was work-related.
Plaintiff did not question Schwartz's authority to regulate such matters
within her department. During these time frames, employees from other
departments would sometimes stop by plaintiff's cubicle to socialize, and
McGrath would complain about it, as it could be disruptive. However, according
to plaintiff, around the November 2005, July 2007, and November 2009 t ime
frames, McGrath would also "hang out" at her cubicle for an "excessive amount
of time." In addition to making plaintiff uncomfortable, it upset her coworkers
because they were not permitted to have visitors at their cubicles. Plaintiff did
not recall anyone other than her friend from a different department, Genia
McCue, visiting around the August 2011 time frame.
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D.
Plaintiff and McGrath's work relationship lasted around nine years. We
have summarized their interactions that are most pertinent to plaintiff's claims.
On May 30, 2006, plaintiff emailed McGrath that she was running late to
work because of traffic. McGrath responded with the words "bad, bad girl."
Plaintiff stated this was not the end of the conversation, and she replied with
"yeah, I know," to which McGrath responded, "I thought you were pure."
Plaintiff replied, "I am," and McGrath wrote, "I think you deserve a spanking."
Plaintiff asserted that she did not preserve this part of the exchange because the
conversation made her panic, so she deleted the worst parts.
Plaintiff's first formal complaint about McGrath occurred in April 2007,
after an incident at a department-organized baby shower for a coworker.
According to plaintiff, her supervisor Jackson had asked her to help set up for
the baby shower, so plaintiff obliged. McGrath entered the conference room,
asked plaintiff why she was there without permission, and told her she needed
his permission to be there. Plaintiff felt embarrassed, as it occurred in front of
several coworkers. According to Kimberly Snyder Mohr and Sheri Ann
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Czajkowski, union shop stewards1 to whom plaintiff reported the incident,
McGrath "tapped her on the shoulder" before questioning her. However,
plaintiff later stated that McGrath had "pushed" her and then pointed his finger
in her face. This was the only incident involving physical contact between
plaintiff and McGrath, and plaintiff stated that it was not in a sexual manner.
After the incident, plaintiff met with Schwartz, McGrath, Snyder Mohr,
and Czajkowski for about twenty minutes. Plaintiff told McGrath that he made
her uncomfortable because he was "smothering" her and made inappropriate
comments, although she did not elaborate except to say that he would watch
everything she did and closely scrutinize her performance. She added that his
behavior caused her to believe that he disliked her. After hearing plaintiff's
concerns, McGrath apologized and said that he was unaware he made plaintiff
feel uncomfortable, so he agreed to stay away from her. Plaintiff felt the tone
of the meeting was cordial and believed it would resolve her concerns about
McGrath, so she accepted his apology.
Plaintiff stated she did not report any sexual or otherwise inappropriate
comments at the 2007 meeting because it made her uncomfortable to say such
1
Throughout plaintiff's employment, she has been a member of Local 97.
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things, but she "was hoping" Schwartz would have asked about it. Plaintiff
recalled that before 2007, McGrath once complimented her pedicure and told
her she should get his face painted on her nails. Plaintiff inferred that by saying
that, he meant he wanted to look up her dress. She responded, "[W]hy would I
get an old man's face painted on my toes?" According to plaintiff, because of
this conversation, her coworkers "retaliated" against her by not speaking to her
for six months. In addition to this incident causing plaintiff to feel
uncomfortable, she recalled McGrath complimenting her outfit several times a
week around the same time.
According to plaintiff, McGrath left her alone for a while after the
meeting, but about six months later, he started to "hang around [her] cubicle
again" and complained when other employees visited plaintiff.
Although plaintiff claimed that McGrath's constant presence made her
uncomfortable, she admitted to inviting him to her cubicle on various occasions
for non-work-related purposes and voluntarily discussing personal matters with
him. She stated that she even considered him a "friend" at times. Sometimes
she would ask him for favors, which he granted, including her request for her to
go on a trip to Dunkin' Donuts during work hours and requests to adjust her work
schedule. She further stated that McGrath would also decline to reprimand her
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at times when she arrived late to work. In response to these "favors" for letting
her take off time from work, she once brought him a signed baseball from a
Yankees game.
During 2008 and early 2009, plaintiff and McGrath exchanged certain
emails, which plaintiff now asserts are evidence of his harassment. On June 18,
2018, plaintiff emailed McGrath to ask if she could only put in for half a day
because her ride to work, McCue, needed to leave early that day. McGrath said
it was not a problem and added, "Tell G she owes ME."
On September 17, 2008, plaintiff emailed McGrath to ask if she could take
a short lunch and leave early to attend a dentist appointment. McGrath told her
he would think about it and then responded a few minutes later, "[L]et's see, are
you coming to the picnic, the [C]hristmas party?" Plaintiff responded, "Def the
Christmas party!!!! I have to see on the picnic," and then explained why she
might not be able to attend the picnic. The conversation ended after McGrath
wrote, "[W]e won[']t be seeing you then, but the lunch thing is ok, I told [Iko]."
Plaintiff stated that on four occasions, McGrath conditioned his approval of her
request for personal time on her attending his picnics.
On December 12, 2008, plaintiff asked McGrath if she could leave early
because she was not feeling well. McGrath responded, "[Y]ou will owe." When
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plaintiff replied with "?," McGrath explained, "[I]f you leave, you have no time
right? [Y]ou will have to make it up."
On February 12, 2009, McGrath emailed plaintiff, "I didn't say it, but you
look nice." Plaintiff responded, "Awe, Thank you!!!" Finally, five days later,
McGrath emailed plaintiff, "[A]re you being shy? [T]rying to tell me
something?" Plaintiff replied, "Ha. You wish that was it!!!!!!! LOL."
In April 2009, McGrath sent plaintiff a Facebook message that read, "You
are 'Dirty Thirty' this week, make sure you enjoy yourself."
On December 7, 2009, plaintiff emailed McGrath in response to his
department email offering to treat the employees for the holiday season. She
thanked him for the offer and also asked if she could move to Gonier's old seat
because she "like[d] being alone" and was "hearing way to[o] much gossip."
McGrath replied that she could not have the seat, as it had already been assigned
to someone else. Plaintiff stated that the gossip to which she was referring was
caused by her coworkers' resentment of the way McGrath treated her.
On December 10, 2009, plaintiff emailed Czajkowski about "a major
problem" with McGrath that occurred while plaintiff was telling a coworker she
was "aggravated" she could not use the Internet at work to check her bank
account. McGrath overheard and told plaintiff she would never have that access.
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The conversation turned into a screaming match, and according to plaintiff,
McGrath insinuated that non-managerial employees were less responsible than
him and that if plaintiff did not like the policy she should leave. Plaintiff added
that after their argument, McGrath emailed everyone whom he supervised,
instructing them to be on time to work. Plaintiff explained that this upset her
because McGrath would let it slide when she arrived late.
Czajkowski replied, explaining that McGrath's explanation of the Internet
access policy was correct, including his view that it would not change, but she
offered to speak with McGrath about his tone. She added that plaintiff was
taking risks by frequently arriving late, "since other people in [the] department
are scrutinized for their time minute by minute" and could complain about
McGrath giving plaintiff preferential treatment.
Within days of the argument, plaintiff met with Manuelli and Czajkowski
to discuss McGrath. Plaintiff complained that McGrath spent too much time at
her cubicle and stated that she did not want to be friends with him. She also
testified that she showed Manuelli several emails revealing McGrath's
inappropriate behavior. According to plaintiff, this prompted Manuelli to tear
up the notice of subordination Schwartz had drafted about plaintiff's behavior
toward McGrath during their argument over the Internet policy. She also
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testified that Manuelli assured her, "[M]y door is always open if you want to
come in and talk to me and I'll make sure he stays away from you," and "if you
need to move we can move you." In response to plaintiff's comments, Manuelli
met with McGrath and Schwartz and instructed McGrath to limit his interactions
with plaintiff to work-related conversations and office pleasantries.
For almost a year, McGrath stayed away from plaintiff. Then, in
December 2010, Human Resources sent all employees a memorandum
announcing the death of plaintiff's father, so McGrath and several other
coworkers attended the wake, which was open to the public. According to
plaintiff, after the wake, "[McGrath] started coming around more."
E.
During the spring of 2013, a series of events occurred, which prompted
plaintiff to file an Equal Employment Opportunity (EEO) complaint with NJTA.
In her June 24, 2013 complaint, plaintiff expressed that she "was being
smothered by [McGrath's] constant attention." He visited plaintiff at her cubicle
several times daily but would not interact with other employees in this way, and
he would tell her that her coworkers disliked her. After plaintiff told him to stop
saying such things, he stopped but continued to visit her cubicle regularly.
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According to plaintiff, during the week of April 15, 2013, she was
covering for two coworkers, so when McGrath stopped by her cubicle, she told
him she did not have time to talk. According to plaintiff, McGrath "became
frantic" and said, "What is it, what do you need help with. I will help you; I will
help you do anything." When plaintiff declined the offer, he replied, "I'll help
you with anything because I like you." Plaintiff claimed she had to turn her
chair away to get him to leave her alone. She explained that she had initially
declined to report this incident, as well as others, because she "hoped . . .
McGrath would stop on his own after repeated hints."
Then, in May 2013, plaintiff asked Schwartz for a week of vacation. She
assumed that McGrath had reported her recent complaints to Schwartz, when
Schwartz told her, "[W]hen we gave [you] this position we thought you could
handle it, you have to grow a thicker skin." Plaintiff responded that McGrath
"acts like he owns me and he doesn't leave my desk." Schwartz suggested that
she talk to McGrath, and she said that she had done so to no avail, she did "not
want to make waves," and she just wanted to "take the week to work through
this." Schwartz ultimately allowed plaintiff to take the week off.
When plaintiff returned to work, McGrath instructed her to open bags of
mail for the toll collectors, which she proceeded to do for three days. He also
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yelled at her one day after her friend from the engineering department had
visited her during the last ten minutes of the previous workday. McGrath told
her that someone complained about it, and then he said, "[W]ould you just listen
to me . . . I am trying to be your fucking friend!"
Later in the week, plaintiff saw that "mail was thrown all over [her] desk,"
so she went to speak with Iko, and said, "I guess I am opening mail again today."
Iko informed plaintiff that Schwartz had ordered the finance department
employees to assist with opening the bags. According to the complaint, plaintiff
"had a full blown panic attack and ran downstairs to human resources." She
spoke with Garrity, who told her that McGrath was told he was not allowed to
speak with her anymore. Plaintiff responded, "That explained . . . why he was
doing my work and leaving me no work to do." Garrity testified that this was
the first time she became aware of plaintiff's concerns about McGrath's
behavior.
Plaintiff summarized her complaints as her having dealt with, for nine
years, McGrath "acting like he ha[d] ownership over [her]," and refusing to stop,
despite repeated requests. To illustrate the continuity of McGrath's
inappropriate behavior, plaintiff attached copies of several e-mails she felt were
inappropriate, dated from May 30, 2006 to September 4, 2009. Plaintiff stated
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that she declined to mention anything of a sexual nature because she "didn't want
to get [McGrath] in trouble" and "just wanted to be moved away from him."
Although not discussed in the EEO complaint, after these incidents,
plaintiff visited NJTA's medical department in tears and explained that her
supervisor had been harassing her for weeks, and after having taken a leave of
absence for a week, she returned to the office with "a lot of work on her desk,"
causing her to feel "overwhelmed and frustrated." Noting that plaintiff had
previously been treated for stress anxiety and panic disorder, NJTA's physician
excused her from work. Plaintiff's personal physician agreed and informed
Garrity that when plaintiff returned to work she would "need a different
placement . . . to accommodate her medical issues." Thereafter, plaintiff was
approved for temporary disability. 2
Noreen Daniels, NJTA's EEO officer, investigated plaintiff's complaint
with the assistance of NJTA's in-house attorney, Mark Schneider. Daniels
2
When she presented for a medical evaluation at NJTA's medical department
on June 14, 2013, the doctor informed her she was ineligible for temporary
disability benefits because her medical leave was connected to the workplace.
Four days later, Garrity emailed plaintiff and advised her that she needed t o fill
out the workers' compensation paperwork and that NJTA would be processing
her temporary disability papers. The following day, she was approved for
temporary disability, retroactive to May 31, 2013.
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interviewed plaintiff and McGrath separately during July 2013, and Schneider
took notes during both interviews.
According to the interview notes, plaintiff felt that McGrath was
"smothering" and isolating her. She complained that McGrath was "creepy" and
his inappropriate behavior began around 2004. She also complained that he
started "hanging around her cubicle all day" in 2007. Throughout the years,
McGrath would make inappropriate comments. For example, he asked if
plaintiff was wearing lipstick, instructed other employees not to speak with
plaintiff or go near her, sent plaintiff emails saying she owed him if she wanted
to take time off, and constantly talked about his ex-girlfriend after they ended
their relationship. He also left CDs of love songs at plaintiff's desk and once
visited a bar down the street from plaintiff's home. In addition, he would not
give plaintiff any work but then "inundated her" with mail to open. Plaintiff did
not identify any physical contact between her and McGrath, other than claiming
that he "pushed" her during their interaction before the baby shower. Plaintiff
explained that she reported McGrath's behavior to three supervisors, and on one
occasion when she complained to Schwartz, he told her she needed to "grow a
thicker skin." According to plaintiff, she did not recall much from this meeting,
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other than that she remembered mentioning that she told Daniels that McGrath
would make comments about a coworker's breasts.
During McGrath's interview, he did not express any major problems with
plaintiff. According to him, plaintiff was a good worker and even asked for
extra work. He never had to write her up or speak to her about poor performance.
Overall, he found her "very pleasant[] but very sensitive [and] a little paranoid."
In response to plaintiff's complaint that he had "banned" a male employee from
her cubicle, he explained that the employee "was banned from everywhere"
because he was not part of their department. He denied that asking plaintiff to
open the mailbags was punishment, as everyone was required to do so at times,
and he denied taking assignments away from her. He added that he had no
romantic feelings for plaintiff and never asked her on a date. If he ever told her
she owed him for something, he meant in terms of work, and he denied any quid
pro quo and ever asking plaintiff if she was wearing lipstick. He had never had
any physical contact with plaintiff, other than before the baby shower incident,
when he recalled tapping her on the shoulder to get her attention.
After Daniels and Schneider reviewed the interview notes and documents
plaintiff and McGrath provided, Daniels found she was unable to conclude there
had been a violation of NJTA's policy against discrimination and sexual
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harassment. On August 1, 2013, Daniels and Schneider met with McGrath to
discuss their findings and instructed him not to retaliate against plaintiff and to
avoid spending time at plaintiff's cubicle. Daniels sent plaintiff a letter the same
day, advising her of the outcome of the investigation.
On September 20, 2013, plaintiff emailed Garrity, claiming Daniels'
investigation was inadequate. She asserted that "[McGrath] was directly
instructed twice in the past not to come near [her] and yet he completely
disregarded those instructions, kept harassing [her], and spent hours a day
sometimes in [her] cubicle." Further, "[he had] blatantly retaliated against [her]
for making complaints," engaged in inappropriate conversation by speaking
about sexual activities, and isolated her from coworkers. While his conduct
"appear[ed] to be 'favoritism,' [it was] actually hostile and suffocating." The
failure to propose anything more than a vague "change in reporting structure"
prompted plaintiff to engage legal counsel.
On October 2, 2013, Daniels wrote to plaintiff and stated that plaintiff had
not previously made allegations of retaliation or sexual comments. She
requested that plaintiff meet with her to prepare a written complaint, but plaintiff
did not follow up.
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F.
On March 5, 2014, plaintiff filed a complaint against NJTA and McGrath
in the Law Division, alleging hostile work environment sexual harassment,
retaliation, and IIED. Plaintiff alleged that since 2004, she had been "subjected
to repeated, pervasive, severe, and continuing instances of sexual harassment by
. . . McGrath on an almost daily basis." Specifically, McGrath would be at her
cubicle three to five hours daily, and he would flirt with her, stare at her body,
make inappropriate comments about her body and clothing, and discuss
inappropriate and sexually explicit topics. He also "direct[ed] [p]laintiff to
listen to certain 'love songs'" and made her listen to a raunchy comedian. In
addition, he "tried to use his supervisory authority to compel [p]laintiff to go on
a date with him" and granted plaintiff's requests for days off from work as a
favor, which he stated she would need to repay. Plaintiff claimed that "[b]ecause
of his obsession with her, . . . McGrath singled [her] out by attempting to isolate
her from her coworkers." He would tell her that coworkers disliked her, and he
forbid her from having visitors at her cubicle. He also "made special rules and
prohibitions that applied only to [p]laintiff." For example, according to plaintiff,
she was the only employee in the department that was required to obtain
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McGrath's permission to attend the baby shower, and when McGrath
reprimanded plaintiff at the shower, he "angrily pushed" her.
Plaintiff first formally reported McGrath's behavior in 2007 and explained
at a subsequent meeting that she felt McGrath was "smothering her." She
alleged that NJTA failed to adequately investigate her complaint and implement
a remedial plan and denied her request to report to a different supervisor.
Plaintiff complained about McGrath again in 2009, after he "wrongfully
humiliated [her] in front of another male employee, in an apparent fit of
jealousy." According to plaintiff, Schwartz responded by suggesting that
plaintiff be written up, and when she asked Schwartz for a day off to think about
how to handle McGrath's continued harassment, he told plaintiff she "need[ed]
to have thicker skin." Around the same time, plaintiff also reported to Manuelli
that McGrath was "smothering [her] and singling [her] out," so she again
requested to report to another supervisor. Again, she alleged that her complaint
was "wholly unaddressed."
Plaintiff alleged that McGrath's harassment and inappropriate conduct
continued thereafter. During the summer of 2012, "McGrath exhibited stalking
behavior" by visiting a bar near plaintiff's house "in order to find her" and
"instruct[ing] [a] coworker to tell him where [p]laintiff lived and further
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instruct[ing] the coworker to drive by [p]laintiff's house." Other employees also
noticed McGrath's behavior and would tell plaintiff that they observed him
"circle [her] cubicle constantly." Plaintiff filed her third complaint in 2013, but
the EEO officer failed to conduct a proper investigation. Plaintiff alleged that
all of her complaints were "mischaracterized as a personal disagreement."
To support her claims of retaliation and IIED, plaintiff largely relied on
the allegations used to support her hostile work environment claim. With
respect to the retaliation claim, plaintiff added that "[a]fter each such complaint,
. . . McGrath would scrutinize [her], harass her further, and attempt to isolate
her from her coworkers," and he once assigned her the menial task of opening
mail as punishment for reporting him.
In response to plaintiff's complaint, Daniels interviewed McGrath,
Manuelli, Schwartz, Iko, three union representatives, and six other employees
during March and April 2014. Based on these interviews, Daniels issued a
detailed final investigative report on December 22, 2014, addressing each of
plaintiff's allegations. Daniels concluded that there was insufficient evidence to
support most of them and that McGrath's behavior toward plaintiff did not
violate NJTA's "Sexual Harassment" policy.
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Daniels was only able to identify a few supportable allegations. There
was evidence that McGrath spent a lot of time at plaintiff's cubicle, although not
three to five hours daily. McGrath once emailed plaintiff the words "bad, bad,
girl," but it was a response to plaintiff informing him that she would arrive late
to work. He also gave plaintiff an explicit Jimmy Fallon comedy CD and
asserted he gave it to her after a conversation about Fallon. However, there was
insufficient evidence that McGrath "directed" plaintiff to listen to it. In addition
to McGrath's behavior, Daniels found that Schwartz told plaintiff that she
needed a thicker skin, but he had made the comment in response to her
complaints about coworker gossip regarding plaintiff's promotion.
When plaintiff was deposed, she made additional specific allegations
about certain behaviors she felt were inappropriate. She recalled that on one
occasion, McGrath told her about his wife's personal problems stemming from
her difficult childhood; on another occasion, he told her his sister was sleeping
with an older married man; on two occasions, he told her a story about a toll
collector that once collected a ticket with semen on it; and on another occasion,
he told a story about being on a date and receiving oral sex. Plaintiff was unable
to recall the dates of these conversations. She also stated that McGrath gave her
inappropriate CDs on two occasions, although she could not recall when. One
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CD was an Eric Clapton album, and she claimed he directed her to listen to on e
of the love songs because it reminded him of her. The other was a raunchy
Jimmy Fallon comedy CD. Further, after attending a coworker's wedding,
plaintiff claimed that McGrath sent around a picture of plaintiff leaning close to
another coworker and stated that it looked like the coworker was touching
plaintiff's butt. In addition to these specific allegations, plaintiff insisted that
McGrath was "sitting on [her] desk for hours on end every single day," staring
at her, and often commenting about a coworker's breasts.
G.
NJTA and McGrath both moved for summary judgment. Judge LeBlon
heard oral argument on March 29, 2018, and on April 24, 2018, he issued an
oral decision, granting both motions.
The judge found that plaintiff alleged two discrete acts in violation of the
LAD—NJTA's failures to reassign plaintiff to a new supervisor in response to
her 2007 and 2009 complaints—but these acts occurred outside the LAD's two-
year statute of limitations. The continuing violation theory could not save
plaintiff's claims, as any additional allegations occurred outside of the two-year
window before the filing date of March 5, 2014. Giving plaintiff the benefit of
all reasonable inferences, the judge further concluded that plaintiff's allegations
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"simply do not show any hostile work related conduct by . . . McGrath after
2009." Additionally, he found that plaintiff failed to allege "conduct [that] was
not unwelcome and/or severe and pervasive."
In addition, the judge determined that McGrath could not be held
personally liable for a LAD violation because LAD allows redress from
employers, and the definition of an employer does not include individual
supervisors. The only way McGrath could be held individually liable was if he
or aided and abetted in discriminatory conduct. Plaintiff alleged that McGrath
was the sole harasser; he could not aid and abet himself.
Under plaintiff's retaliation claim, the judge found that most of the
conduct she identified also formed the basis for her harassment claim. The judge
explained that "the same conduct that forms the basis of the hostile work place
cannot be then used to allege[] retaliation." Moreover, plaintiff did not allege
or demonstrate any adverse employment decision. The only conduct relevant to
this element was plaintiff's assignment to open the toll collector bags. However,
Iko, not McGrath, required plaintiff to complete the task.
Lastly, the judge dismissed plaintiff's IIED claim, as she failed to make a
prima facie showing that McGrath engaged in IIED, and he denied plaintiff's
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26
request for punitive damages, "based upon the lack of facts or law to support
such a [request]."
This appeal ensued.
II.
A.
We review a decision granting summary judgment applying the same
standard that governed the trial judge. Henry v. N.J. Dep't of Human Servs.,
204 N.J. 320, 330 (2010). The judge must determine whether, "if, considering
the burden of persuasion at trial, the evidence submitted by the parties on the
motion, together with all legitimate inferences therefrom favoring the non -
moving party, would require submission of the issue to the trier of fact." R.
4:46-2(c). If so, the motion must be denied. Brill, 142 N.J. at 540. However,
"if the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is not genuine issue as to any
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law," the motion must be granted. R. 4:46-2(c). In the
absence of a genuine issue of material fact, we review the judge's application of
the law de novo. Henry, 204 N.J. at 330.
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When reviewing LAD claims, we also consider the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973), and adopted by our Supreme Court, Battaglia v. United Parcel
Serv., Inc., 214 N.J. 518, 546 (2013); Andersen v. Exxon Co., U.S.A., 89 N.J.
483, 492-93 (1982). Under this framework,
(1) the plaintiff must come forward with sufficient
evidence to constitute a prima facie case of
discrimination; (2) the defendant then must show a
legitimate nondiscriminatory reason for its decision;
and (3) the plaintiff must then be given the opportunity
to show that defendant's stated reason was merely a
pretext or discriminatory in its application.
[Henry, 204 N.J. at 331 (quoting Dixon v. Rutgers, 110
N.J. 432, 442 (1988)).]
See McDonnell Douglas, 411 U.S. at 802, 804.
B.
We first address plaintiff's hostile work environment sexual harassment
claim. At the outset, we agree with the trial judge that plaintiff alleg ed discrete
acts occurring earlier than March 5, 2012 and that her claims arising from such
conduct are time-barred, as LAD claims are governed by a two-year statute of
limitations. See Montells v. Haynes, 133 N.J. 282, 292 (1993). Additionally,
any allegations of conduct occurring within the statute of limitations did not
reveal a pattern of tortious conduct sufficient to warrant application of the
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continuing violation doctrine. See Mancini v. Township of Teaneck, 349 N.J.
Super. 527, 557 (App. Div. 2002), aff'd as modified, 179 N.J. 425 (2004). We
further conclude, for the reasons set forth below, that plaintiff did not allege any
actionable conduct that occurred within the statute of limitations.
The LAD prohibits employers from discriminating against their
employees on the basis of sex or gender. N.J.S.A. 10:5-12(a). This type of
discrimination includes sexual harassment, which may arise in the form of a
hostile work environment. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601
(1993). "Hostile work environment sexual harassment . . . occurs when an
employer or fellow employees harass an employee because of his or her sex to
the point at which the working environment becomes hostile." Ibid. It need not
be the result of conduct that is sexual in nature and may "occur[] because of the
victim's sex." Id. at 602.
To establish a prima facie case for hostile work environment sexual
harassment, the employee 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 [person] 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, 413-14 (2016) (quoting
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29
Lehmann, 132 N.J. at 603-04). The first prong is discrete, whereas the others
are largely interdependent. Lehmann, 132 N.J. at 604.
"Severe or pervasive" conduct may be established by proof of "numerous
incidents that, if considered individually, would be insufficiently severe to state
a claim, but considered together are sufficiently pervasive to make the work
environment intimidating or hostile." Id. at 607. The focus of this cause of
action is on the conduct, not the harm an employee may or may not have
suffered, as the LAD's "primary purpose is to end discrimination." Id. at 610.
Further, "the plaintiff need not personally have been the target of each or any
instance of offensive or harassing conduct," as "[a] women's perception that her
work environment is hostile to women will obviously be reinforced if she
witnesses the harassment of other female workers." Id. at 611.
Courts apply an objective standard when determining whether a plaintiff
has demonstrated harassment that was "sufficiently severe or pervasive to alter
the conditions of employment and to create a hostile or intimidating work
environment." Id. at 611-12. This objective standard is gender-specific and
takes into consideration the reaction of a reasonable person of the plaintiff's
gender, who may be either "sensitive" or "tough," and it does not reject a
reaction merely because it is emotional. Id. at 613-14. "Only an idiosyncratic
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response of a hypersensitive plaintiff to conduct that a reasonable [person]
would not find harassing is excluded[.]" Id. at 614. The judge should consider
"the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance."
Cutler v. Dorn, 196 N.J. 419, 432 (2008) (quoting Green v. Jersey City Bd. of
Educ., 177 N.J. 434, 447 (2003)).
"[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) (first alteration in original)
(quoting Heitzman v. Monmouth County, 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)). Therefore, not all persistent efforts at
friendship are necessarily harassment, when viewed objectively. See Godfrey
v. Princeton Theological Seminary, 196 N.J. 178, 197-99 (2008).
We reject plaintiff's contention that she showed by a preponderance of the
evidence that McGrath engaged in severe or pervasive conduct that would cause
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31
a reasonable woman to believe she was subjected to a hostile or abusive work
environment, such that her conditions of employment were altered. Setting
aside plaintiff's subjective response to McGrath's alleged behavior, the evidence
suggests a largely benign relationship between plaintiff and McGrath,
interspersed with a few apparently unprofessional comments over the course of
several years, though not rising to the severity or pervasiveness required to
create a hostile work environment.
We further reject plaintiff's contention that the record presents genuine
issues of material fact as without merit. Several of the purported factual disputes
cited in her appellate brief significantly mischaracterize the deposition
testimony to which she cites. Additionally, many of her allegations are self-
serving conclusory statements based largely on unsubstantiated inferences and
feelings, including that McGrath wanted to look up her dress, intended to
exchange sexual favors or social interactions for allowing plaintiff to take
vacation time, and intended to isolate her and create friction between her and
other coworkers. Such assertions are insufficient to defeat a motion for
summary judgment. See Horizon Blue Cross Blue Shield of N.J. v. State, 425
N.J. Super. 1, 32 (App. Div. 2012); Oakley v. Wianecki, 345 N.J. Super. 194,
201 (App. Div. 2001).
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C.
We next address plaintiff's retaliation claim. Under the LAD, it is
unlawful "[f]or any person to take reprisals against any person because that
person has opposed any practices or acts forbidden under [the LAD] . . . or to
coerce, intimidate, threaten or interfere with any person in the exercise or
enjoyment of . . . any right granted or protected by [the LAD]." N.J.S.A. 10:5-
12(d). To establish a prima facie case for a retaliation claim, a plaintiff must
show that "(1) [he or she] engaged in a protected activity known by the
employer; (2) thereafter [the] employer unlawfully retaliated against [him or
her]; and (3) [the employee's] participation in the protected activity caused the
retaliation." Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 125 (2008)
(quoting Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995)).
Additionally, the plaintiff must show there was a reasonable, good faith basis
for the complaint that allegedly caused the employer to retaliate. Carmona v.
Resorts Int'l Hotel, Inc., 189 N.J. 354, 373 (2007).
We reject plaintiff's contention that she showed by a preponderance of the
evidence that McGrath and NJTA retaliated against her for reporting McGrath's
behavior. In her appellate brief, plaintiff alleges various acts, including
increased scrutiny, making nasty remarks and cursing, forbidding visitors in her
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33
cubicle, relegating her to trivial tasks, inappropriately touching and pushing her,
writing her up when she objected to McGrath's tone, and refusing to move her
seat when she requested. She also cites to the EEO officer's "sham
investigation" and the NJTA's end to her disability benefits and dispute as to her
workers' compensation claim. These assertions are unsupported, conclusory,
mischaracterized, or insufficient to constitute an adverse employment action
caused by plaintiff's complaints about McGrath's conduct.
D.
Finally, we address plaintiff's IIED claim. To establish a claim for IIED,
a plaintiff must prove four elements: the "defendant acted intentionally or
recklessly," the "conduct was 'extreme and outrageous,'" the conduct
proximately caused the plaintiff's emotional distress, and such distress was "so
severe that no reasonable [person] could be expected to endure it." Ingraham v.
Ortho-McNeil Pharm., 422 N.J. Super. 12, 19-20 (App. Div. 2011) (quoting
Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988)).
A plaintiff must demonstrate conduct "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community." Id. at
21 (quoting Buckley, 111 N.J. at 366). Generally, a plaintiff is able to satisfy
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34
this "elevated threshold" only in extreme cases, ibid., and "it is extremely rare
to find conduct in the employment context that will rise to the level of
outrageousness necessary to provide a basis for recovery," Griffin v. Tops
Appliance City, 337 N.J. Super. 15, 23-24 (App. Div. 2001) (quoting Cox v.
Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1998)) (citing Taylor v.
Metzger, 152 N.J. 490, 508-21 (1998)). In Ingraham, we listed several examples
of conduct on both ends of the spectrum. See 422 N.J. Super. at 21-22.
In light of our decisions with respect to plaintiff's LAD claims, we
conclude that plaintiff failed to make a prima facie showing of IIED. While the
infrequent comments referring to sexual content or the tone and language
involved in heated arguments may be unprofessional and not received well by
all, they do not rise to the level of "atrocious" conduct "utterly intolerable in a
civilized community." Id. at 21 (quoting Buckley, 111 N.J. at 366). Further,
plaintiff's own efforts to engage with McGrath and her reference to him as a
friend at times belie her contention that his alleged pattern of abuse and
obsessive behavior was so intolerable.
To the extent we have not addressed any of plaintiff's remaining
arguments, we conclude that they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
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Affirmed.
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36