Opinion
DOCKET NO. A-0091-15T1
01-20-2017
CAROLINE EDRIES, Plaintiff-Appellant, v. QUICK CHEK FOOD STORES, INC., Defendant-Respondent, and RAY TORRES, Defendant.
Forman, Cardonsky & Lawrence, attorneys for appellant (Samuel Tsinman, on the brief). Law Offices of James J. Cutro, P.C., attorneys for respondent (James J. Cutro, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Hoffman and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1053-13. Forman, Cardonsky & Lawrence, attorneys for appellant (Samuel Tsinman, on the brief). Law Offices of James J. Cutro, P.C., attorneys for respondent (James J. Cutro, on the brief). PER CURIAM
Plaintiff Caroline Edries appeals from the January 9, 2015 Law Division order granting the summary judgment dismissal of the sexual harassment complaint she filed against her former employer, defendant Quick Chek Food Stores, Inc. (Quick Chek). Because Quick Chek had a formal anti-harassment policy, and Quick Chek swiftly ended plaintiff's harassment after she utilized the policy, we affirm the trial court order.
Plaintiff's complaint included Quick Chek employee Ray Torres as a defendant; however, plaintiff's brief states her claim against Torres "was settled between the parties."
I.
When Quick Chek hired plaintiff in November 1999, she received the company's Team Member Handbook (Handbook). The Handbook stated Quick Chek's policy of not tolerating workplace harassment, including sexual harassment. Regarding sexual harassment, the Handbook provided, in relevant part:
Sexual harassment is prohibited by law. It is a form of misconduct that is demeaning to another person, undermines the integrity of the employment relationship and is strictly prohibited. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, physical conduct or other conduct when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment.
Depending on the circumstances, sexual harassment can include . . . dirty jokes, inquiries into personal matters, comments about a person's body . . . [or] mental or physical intimidation . . . .
The Handbook further stated Quick Chek would "take steps necessary to ensure that no retaliatory action is taken for reporting harassment or discrimination" and instructed "[r]eports of harassment . . . should be made to the team member's immediate supervisor, Store Leader, District Leader or to the Vice President of Human Resources. Any Leader who receives a report of harassment . . . should immediately report it to the Vice President of Human Resources." The Handbook further assured that "[o]nce reported, Quick Chek will institute a thorough administrative investigation of the complaint. . . . When harassment . . . [is] found, steps will be taken to end it immediately." The harassing "individual will be subject to appropriate discipline," including possible termination.
At the same time, Quick Chek gave plaintiff its "No Harassment Policy." The policy reiterated Quick Chek did not tolerate "harassment of [its] team members." It stated, "If you do not feel that you can discuss the matter with your supervisor and if you are not satisfied with the way your complaint has been handled, contact the Director of Human Resources . . . ." Plaintiff signed the policy. Quick Chek also had her watch training videos on sexual harassment.
Plaintiff became a Store Leader for Quick Chek in December of 2006. Describing her job duties, plaintiff said she "had to do it all," including "ordering, hiring, training, food service, front end, coffee." She also distributed Quick Chek's "No Harassment Policy" to employees under her supervision.
In March 2010, plaintiff's store began a weight loss competition. One day in May, Torres, a loss prevention representative for Quick Chek, visited plaintiff's store to investigate a theft. Both parties stipulated that as a member of Quick Chek's security department, Torres had no supervisory authority, control, or input into any decisions that could affect the terms or conditions of plaintiff's employment, unless she was caught stealing. While he was there, plaintiff weighed herself and found she had lost eighteen pounds. Torres looked at her and asked, "[W]hat is your husband going to do when you get all small and sexy down there?" Plaintiff replied, "You're a slob, you're a slob, you really need to stop." She then walked out of the office and slammed the door behind her. As Torres left the store, he told another female employee, "[M]ove your big butt out of my way, girl."
Once he left the store, plaintiff called her supervisor and reported Torres' behavior. She told her supervisor "to talk to him because his mouth is terrible." Plaintiff's supervisor denied receiving a report from plaintiff regarding Torres inappropriately commenting on her or a coworker's appearance. Plaintiff did not claim that Torres made inappropriate comments to her again until November 6, 2010.
During her deposition, plaintiff said Torres had "a habit" of making inappropriate sexual comments. She remembered him inappropriately commenting on another coworker on two occasions. Specifically, plaintiff recalled Torres telling the coworker she looked good "in her blouse 'cause her breasts were, you know."
At her deposition, Georgia, the former girlfriend of a Quick Chek employee, described Torres as "a vulgar pig towards women" and stated, "Sexual harassment is rampant in Quick Chek." She then told numerous stories of supervisors sexually harassing employees until they stopped working for Quick Chek. She declined to provide names or any other identifying details supporting her claims. When asked for specific examples of Torres' inappropriate behavior, she admitted, "I did not witness this." When asked whether a specific employee had told her that she quit working for Quick Chek because of sexual harassment, she admitted, "Not to my face, no."
We use a pseudonym to protect the witness's privacy.
Georgia did, however, testify to one incident based on her personal knowledge. The incident occurred at Quick Chek's annual balloon festival. She observed Torres and another security worker standing on the security trailer's porch, where they made "vulgar comments about the employees as they were going in and out." She heard Torres commenting on "[t]he size of [attendee's] tits as he would put it, you know, big ass, same as I said before about vaginas. Things like that and what they can do with their mouth."
On November 6, 2010, Quick Chek held a "Total Customer Dedication" awards dinner. Plaintiff wore a leather jacket with silver cuffs and a lapel "full of silver." Torres approached plaintiff and asked, "Where's your whips and chains, girl? You know you like it." She told him to stop, but he continued, saying "[o]h, come on, you know you like it." Torres then started shouting, "Where is your husband?" "I want to ask him a question. I want to ask him how big it is down there," pointing to plaintiff's crotch. Another store leader started laughing, and plaintiff said, "[I]f my husband was here you wouldn't have had the chance to speak to him." She repeatedly asked him to stop, but he continued with his comments.
Torres eventually walked away, but then stood in a nearby doorway, and said, "What are you going to do about it?" Plaintiff described herself as "frightened." At her deposition, she explained, "I loved my job. He ruined me. He ruined me. He just ruined me, this guy. He did. And they let him get away with it. It's not fair."
The next day, plaintiff completed an anonymous survey of the event. She rated the dinner and following entertainment as "[g]ood." She wrote the event could have been better if it had "dancing [']till midnite." The surveyed asked for her "most memorable" moment of the event, and she wrote, "The fact the Ray [T]orres has [a] filthy & nasty mouth and he needs to stop with his sexual comments or we will go to Bob." The survey also asked, "If you could Add or Change something what would that be?" Plaintiff wrote, "Just to feel comfortable & not have to deal with people like Ray & his sexual comments." Overall, she rated the weekend a nine out of ten.
"Bob" was the first name of Quick Chek's Director of Human Resources. --------
Quick Chek's Director of Human Resources reviewed the surveys the next day. The same day, a senior vice president received a copy of plaintiff's survey. The vice president contacted Torres' supervisor and ordered him to investigate the incident.
During the same day, Torres went to plaintiff's store and asked her why she had not come to complain to him before reporting him to Human Resources. She said he "went too far this time." Torres asked her for forgiveness. Plaintiff was "frightened at this point." A coworker came to her side, and plaintiff said she was going to the back of the store, and the coworker should come get her after Torres left.
That night, plaintiff called her supervisor to discuss Torres' inappropriate conduct. Plaintiff's supervisor told her to speak with the Human Resources Director about Torres. Plaintiff went to the Director and told him that she preferred to speak with a woman, so the Director told her to report to one of his female coworkers in Human Resources. The coworker told plaintiff to call Quick Chek's General Counsel, who was also female. They scheduled a face-to-face meeting for the next day.
Plaintiff told General Counsel about Torres' inappropriate conduct in May and the previous few days. She said she had told her supervisor about the May incident, but she "had no idea what [her supervisor] had done with it at that point." Plaintiff said Torres needed to be "stopped." General Counsel assured plaintiff that Torres would not bother her anymore.
General Counsel then called the vice president to ensure Torres would never go to plaintiff's store or contact her any other way again. The vice president called Torres' supervisor, who relayed this message to Torres. After the vice president met with plaintiff, he initially thought he should fire Torres. After speaking to outside counsel and realizing no one had previously formally complained about Torres during his twenty-five years as Quick Chek's employee, he decided to issue him formal "constructive advice."
The written advice conditioned Torres' continued employment on (1) refraining from future inappropriate comments, (2) refraining from retribution against plaintiff, (3) declining assignments in the district containing plaintiff's store, and (4) attending a harassment program at Day Pitney, a law firm. The advice was dated December 2, 2010. On December 6, 2010, Torres wrote and signed his plan for improvement below the advice, stating "will never happen again" and "fully understand reason for advice."
The next year, plaintiff attended the same "Total Customer Dedication" weekend. Torres also attended the event, but plaintiff did not have a problem with this because Quick Chek had advised him not to contact her. Plaintiff and Torres both occasionally attended the same large corporate meetings that were similar to the "Total Customer Dedication" weekend, but Torres always refrained from interacting with plaintiff.
On October 6, 2012, plaintiff went on disability leave. On October 12, 2012, plaintiff spoke with Quick Chek's chief executive officer and asked him whether he could "demote Torres, send him out of state to New York, or to south Jersey, so she would '[]never have to go to meetings where he speaks, I have to speak.'" Plaintiff said she had refrained from applying for promotions because she was afraid of having to interact with Torres. When she told her supervisor about her concerns, the supervisor agreed she was unlikely to get a promotion. Plaintiff nevertheless admitted she did not know anyone who would improperly or unfairly fail to consider her for a promotion. "[S]he was just too ashamed to apply." Plaintiff never returned to work from her long-term disability leave.
On November 7, 2012, plaintiff filed her complaint against Quick Chek and Torres for a hostile work environment and retaliation. At the conclusion of discovery, defendants moved for summary judgment.
Following oral argument on January 9, 2015, the trial court granted summary judgement to Quick Chek, concluding it had "effective procedures for reporting and responding to complaints of harassment." It further concluded Quick Chek "did, in fact, respond in an effective way to [plaintiff's] complaint of harassment." Considering plaintiff's retaliation claim, the court concluded the record did not show any "adverse employment consequences to [plaintiff's] complaint." On the same date, the court denied a motion for summary judgment filed by Torres, concluding a reasonable jury could find in plaintiff's favor on her intentional infliction of emotional distress claim against him.
II.
An appellate court reviews a trial court's grant of summary judgment de novo. Townsend v. Pierre, 221 N.J. 36, 59 (2015). An appellate court should view "the facts in the light most favorable to the non-moving party." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 376 (2010); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995) (citations omitted) ("Because the case was disposed of in a summary judgment proceeding, our statement of the facts is based on our consideration of the evidence in the light most favorable to the parties opposing summary judgment.").
A trial court should grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no 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." R. 4:46-2(c). A trial court should deny summary judgment if the non- moving party presents evidence that supports a genuine issue of material fact. Brill, supra, 142 N.J. at 529. In order to avoid summary judgment, disputed issues of fact must be substantial, not simply "immaterial or of an insubstantial nature." Ibid. (citation omitted).
The contended facts "must be supported by relevant and admissible evidence." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 164 (App. Div. 2005) (citations omitted). "[A] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." N.J.R.E. 602. When a Quick Chek "moves for summary judgment . . . , the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Brill, supra, 142 N.J. at 532 (citation omitted).
The New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, prohibits unlawful employment practices and unlawful discrimination based on, among other categories, "the race, creed, color, national origin, ancestry, age, . . . sex, [or] gender identity or expression" of an employee. N.J.S.A. 10:5-12(a). The LAD is remedial legislation designed "to root out the cancer of discrimination." Cicchetti v. Morris Cty. Sheriff's Office, 194 N.J. 563, 588 (2008) (citations omitted). It prohibits sexual harassment that is sufficiently severe or pervasive to create a hostile work environment. Cutler v. Dorn, 196 N.J. 419, 430 (2008) (citing Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)).
Based on agency principles, an employer may be liable for damages resulting from conduct of its employees that violate the LAD. Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 267 (App. Div. 1996) (citing Lehmann, supra, 132 N.J. at 619). An employer is liable for its employee's conduct if the employer acted negligently or recklessly in responding to the employee's discriminatory or harassing conduct. Lehmann, supra, 132 N.J. at 619-21 (applying agency principles explained in the Restatement (Second) of Agency § 219 (1958)).
An employer may fail to take sufficient preventative measures, such as adopting and publicizing an anti-harassment policy or providing harassment training to address the foreseeable threat of workplace harassment. Id. at 621. When an employer knows of harassment, the employer may be negligent in failing to "take effective measures to stop it," because "by failing to take action, [the employer] sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser." Id. at 623 (citation omitted).
In order to show an employer was negligent in its reaction to discriminatory or harassing conduct, a plaintiff has "the burden to prove that the [employer] failed to exercise due care with respect to . . . harassment in the workplace, that its breach of the duty of due care caused the plaintiff's harm, and that she sustained damages." Aguas v. State, 220 N.J. 494, 512 (2015).
Several factors are "relevant to determining whether an employer had acted negligently in failing to establish an anti-harassment policy in its workplace." Gaines v. Bellino, 173 N.J. 301, 313 (2002).
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."An employer is not required to meet each and every one of these factors." Dunkley v. S. Coraluzzo Petroleum Transporters, 441 N.J. Super. 322, 331 (App. Div. 2015), certif. denied, 224 N.J. 120 (2016). Rather, the court should balance the facts and circumstances "to determine whether the employer shows 'the existence of effective preventative mechanisms' designed to comply with the LAD's defined purpose 'to root out the cancer of discrimination.'" Ibid. (citations omitted).
[Ibid. (citing Lehmann, supra, 132 N.J. at 622).]
The lack of an effective anti-harassment or anti-discrimination policy does not "automatically constitute[] negligence," and the existence of such a program also does not "categorically demonstrate[] the absence of negligence." Gaines, supra, 173 N.J. at 313-14 (citing Lehmann, supra, 132 N.J. at 621-22; Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535-38 (1997)). "[E]vidence of the [employer's] anti-harassment policy should be considered in accordance with the factors identified in Gaines." Aguas, supra, 220 N.J. at 514.
"[A]n employer defending such a sexual harassment claim may assert as an affirmative defense that the employer had an effective anti-harassment policy and the employee failed to take advantage of or comply with that policy." Dunkley, supra, 441 N.J. Super. at 337 (citing Aquas, supra, 220 N.J. at 521). The defendant must prove "first, that the employer exercised reasonable care to prevent and to correct promptly sexually harassing behavior; and second, that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm." Aquas, supra, 220 N.J. at 524 (citations omitted). Our Supreme Court has emphasized, "Under Aquas, only an employer who instituted meaningful and effective anti-harassment policies and procedures intended to prevent discrimination, prior to the alleged discriminatory conduct, may assert the affirmative defense." Dunkley v. S. Coraluzzo Petroleum Transporters, 224 N.J. 120, 121 (2016).
An employer's response to harassment or discrimination is considered "effective" if it is deemed to be "reasonably calculated to end the harassment." Lehmann, supra, 132 N.J. at 623 (citation omitted). Ultimately, the "reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in the harassment." Ibid. (quoting Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991)). The investigation and discipline imposed by an employer on a harasser must be designed "to maintain a harassment-free working environment." Ellison, supra, 924 F.2d at 882.
Here, plaintiff argues she and Georgia "testified that sexual harassment was rampant at Quick Chek." Plaintiff testified she witnessed Torres comment on a coworker's blouse twice, but admitted she did not report the comments at the time. Georgia said she personally witnessed only one instance of Torres inappropriately commenting on women. She did not, however, say when the incident took place, and no one reported the incident. When reviewing defendant's motion for summary judgment, we may not consider Georgia's other accusations because they were not based on her personal knowledge. N.J.R.E. 602; El-Sioufi, supra, 382 N.J. Super. at 164. Georgia's single accusation was insufficiently specific regarding its time and nature, and no one reported it to defendant; a reasonable jury could not consequently conclude sexual harassment was rampant at Quick Chek. Brill, supra, 142 N.J. at 532.
Based on the motion record, the trial court properly granted summary judgment to Quick Chek because the company proved it "had an effective anti-harassment policy," and it swiftly responded to plaintiff's complaint upon receiving her hand-written complaint. Dunkley, supra, 441 N.J. Super. at 338 (citing Aquas, supra, 220 N.J. at 521). First, defendant had "formal policies prohibiting harassment in the workplace." Gaines, supra, 173 N.J. at 313 (citing Lehmann, supra, 132 N.J. at 622). Quick Chek's Handbook stated it would "not tolerate workplace harassment, including sexual harassment." Ibid. (citing Lehmann, supra, 132 N.J. at 622). The Handbook assured plaintiff that Quick Chek would not retaliate against her if she reported harassment.
Second, Quick Chek also had "complaint structures for employee's use." Ibid. (citing Lehmann, supra, 132 N.J. at 622). The Handbook instructed plaintiff to report her harassment to her "immediate supervisor, Store Leader, District Leader or to the Vice President of Human Resources." The "No Harassment Policy" further instructed "if you are not satisfied with the way your complaint has been handled, contact the Director of Human Resources." Third, Quick Chek had "anti-harassment training," as plaintiff viewed sexual harassment videos when she started working for Quick Chek, and plaintiff herself distributed Quick Chek's "No Harassment Policy" to all employees under her supervision. Ibid. (citing Lehmann, supra, 132 N.J. at 622).
Plaintiff admitted she "had no idea what [her supervisor] had done with" her May 2010 complaint after she made it. Moreover, she only asked her supervisor to speak with Torres, implicitly telling her not to report the incident to the Director of Human Resources as sexual harassment. She showed she knew Quick Chek's procedure for reporting sexual harassment when she threatened to report Torres' harassment to the Director of Human Resources in November 2010. She declined to do this in May 2010, and once she made her written complaint, Quick Chek swiftly informed Torres that it would terminate his employment if he (1) made inappropriate comments in the future, (2) engaged in retribution against plaintiff, (3) went to plaintiff's store, or (4) declined to attend a harassment program at Day Pitney, a law firm. Torres complied with these conditions, and he never harassed plaintiff again. Further, the records contains no evidence Torres repeated his harassing behavior toward any employee after receiving the notice of corrective action. Quick Chek's anti-harassment policy was "reasonably calculated to end the harassment." Lehmann, supra, 132 N.J. at 623.
The record does not show whether Quick Chek had "effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures," Gaines, supra, 173 N.J. at 313 (citing Lehmann, supra, 132 N.J. at 622), but "[a]n employer is not required to meet each and every one of these factors." Dunkley, supra, 441 N.J. Super. at 331. Quick Chek's swift response to plaintiff's first formal complaint does, however, show Quick Chek had "an unequivocal commitment from the highest levels . . . that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice." Gaines, supra, 173 N.J. at 313 (citing Lehmann, supra, 132 N.J. at 622).
We therefore conclude Quick Chek's anti-harassment procedures were effective, so the trial court properly declined to decide whether Torres' comments were sufficiently severe or pervasive, and the trial court properly granted summary judgment to Quick Chek. Dunkley, supra, 441 N.J. Super. at 338 (citing Aquas, supra, 220 N.J. at 521).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION