Opinion
Civ. No. 99-4835 (WGB).
April 16, 2001
Charles M. Crocco, Esq., NELSON FROMER, ESQS., Neptune, N.J., Attorneys for Plaintiff
Michael S. Kasanoff, Esq., Red Bank, N.J., Attorneys for Defendant Jeffrey Brents.
Daniel J. Gibbons, AUSA, UNITED STATES ATTORNEY'S OFFICE Newark, N.J., Attorneys for United States Post Office.
O P I N I O N
Defendants United States Post Office (William J. Henderson, Postmaster General) ("USPO") and Jeffrey Brents ("Brents") (collectively "Defendants") move separately for summary judgment on this sexual harassment/hostile work environment case. Plaintiff Lorraine A. Kokinchak ("Plaintiff") cross moves for partial summary judgment.
For the following reasons, Defendants' motions are granted. Plaintiff's cross motion is dismissed as moot.
I. BACKGROUND
As a threshold matter, the Court notes that Plaintiff does not dispute many of Defendants' factual assertions. Instead, Plaintiff's "Statement of Facts" merely contains broad unsupported factual allegations and legal conclusions. To the extent that Defendants' statements of facts are uncontested and absent evidence to establish otherwise, the Court will deem such facts as admitted by Plaintiff. See Hill v. Algor, 85 F. Supp.2d 391, 408 n. 26 (D.N.J. 2000) ("facts submitted in the statement of material facts which remain uncontested by the opposing party are deemed admitted.")
A. Facts
Plaintiff has been employed by the United States Post Office in various capacities for approximately 20 years. She is currently employed by the Post Office as a "floor expeditor." She is a member of Defendant American Postal Workers Union, AFL-CIO Red Bank Local ("Local") and is also a member of Defendant American Postal Workers Union, AFL-CIO ("APWU").
Defendant Brents was also an employee of the USPO and a member of the Local and of the APWU. Although Brents was not an employee of either the Local or the APWU, he was a shop steward for the Local.
According to section 1 of Article XVII of the Collective Bargaining Agreement ("CBA"), "[s]tewards may be designated for the purpose of investigating, presenting and adjusting grievances."
1. Sexual Harassment
Plaintiff claims that on numerous occasions between 1996 and 1999, Brents spoke to her and touched her in sexually inappropriate ways. Brents' first inappropriate conduct towards Plaintiff was in 1996 when while visiting Plaintiff's home, Brents dropped his pants and exposed himself to her. (Transcript of May 18, 2000 Arbitration Proceeding attached to Certification of Daniel J. Gibbons ("Gibbons Cert.") as Ex. 1 ("Arb. I"), at 32:17-35:19.) Brents also allegedly exposed himself on one other occasion in the fall of 1996, asking her "how do you like it, it wasn't even hard yet." (Plaintiff's Deposition Transcript attached to Gibbons Cert. as Ex. 5 ("Pl.'s Dep. Tr. II"), at 136:11-17.) Although Plaintiff cannot recall the specific instances, on other occasions between 1996 and 1999, Brents purportedly touched her on her breast and crotch at least two times, and made facial expressions at Plaintiff, including licking his lips and making other sexual gestures. (Arb. I, at 37:25-40:11; Pl.'s Dep. Tr. II, at 107:6-14.)
Plaintiff claims that in between these incidents, Brents would "lull" her into believing that the improper conduct would stop by doing nothing objectionable for periods of time before committing another offensive act. (Plaintiff's Deposition Transcript attached to Gibbons Cert. as Ex. 4 ("Pl.'s Dep. Tr. I"), at 140:1-6.) According to Plaintiff, Brents' misconduct only occurred when they were alone or when no one else could see it. (Id. at 174:1-11; Pl.'s Dep. Tr. II, at 107-3:109-16.)
Then on March 9, 1999, Brents allegedly touched Plaintiff's breast and behind once again. (Pl.'s Dep. Tr. I, at 151:16-153:3.) Plaintiff yelled at Brents to stop and left the office. (Id. at 153:4-7.) A supervisor, J.C. Johnson, ("Johnson") noticed that Plaintiff was upset and informed the senior supervisor of the shift, Ann Rolands ("Rolands"), who immediately spoke to Plaintiff, took her statement, and initiated an investigation. (Id. at 154:7-160:16.) Once management was alerted to Brents' conduct and started the investigation, the sexual harassment stopped. (Id. 180:18-181:15.) Moreover, as a result of that investigation, Brents received a 14 day suspension without pay, which Brents appealed through the union grievance procedure. (Pl.'s Dep. Tr. II, at 136:14-137:10; Certification of Dan Hill ("Hill Cert."), at ¶ 3.)
Until that episode on March 9, 1999, the USPO managers had not received any complaints that Brents was sexually harassing Plaintiff. Plaintiff concedes that prior to March 9, 1999, she did not complain to anyone with supervisory or managerial authority at the USPO about Brents. The USPO asserts that Plaintiff was aware at all relevant times that the USPO had strict policies against sexual harassment, that she was aware of posters and phone numbers for assistance, and that she had received a satisfactory response from management when she complained to supervisors about sexual remarks made by another employee, Rick Velardi. (Pl.'s Dep. Tr. I, at 38:2-48:24, 143:10-144:5.)
Thereafter, while Plaintiff was working as the "inside expediter," and Brents as the "dock expediter," positions that required them to communicate with each other over the radio in order to coordinate the movement of the mail, Plaintiff complained about Brents' "sly remarks" and the "tone of voice" he used over the radio on several occasions. (Id. at 184:15-185:10.) At Plaintiff's request, management removed Brents from the expediter's position. (Id. at 185:11-14.) Plaintiff also testified that once in June 1999, Brents "glared" at her. She did not report the glaring to management.
Finally, on March 17, 2000, a co-worker informed Plaintiff that someone had scratched "F*** Lorraine" on a desk, but that another co-worker had already taken steps to remove the remark. (See Hill Cert. at ¶ 2.) Plaintiff immediately complained to a supervisor. Although management investigated the incident, they were unable to determine the identity of the writer. (Id. at ¶ 6.) Nevertheless, the supervisor talked to Brents about the incident, warning him of the consequences of sexual harassment. (Id. at ¶¶ 4-5.)
The next day, Plaintiff left the USPO and did not return to work there until shortly after her deposition in this case. At Plaintiff's request, she was assigned to a different facility from where she and Brents once worked.
2. Kathy Boss
Kathy Boss ("Boss") was also a postal employee. In April of 1996, Brents allegedly exposed himself to Boss by dropping his pants. (Transcript of August 15, 2000 Arbitration Proceeding attached to Gibbons Cert. as Ex. 2 ("Arb. II"), at 66:2-19.) Boss did not report that incident to any supervisor or manager. (Id. at 75:4-25; 78:1-18.) Subsequently, Brents and Boss entered into a consensual sexual relationship, despite the fact that both were married to others. As a result, Boss became pregnant. After Brents' wife learned of the pregnancy, the affair turned bitter and Boss sued Brents for child support.
While Plaintiff heard gossip about the pregnancy, she did not hear any rumors that Brents had sexually harassed Boss. (Pl.'s Dep. Tr. I, 93:21-94:15.)
a. June 4, 1997 Letter
On or about June 4, 1997, Boss wrote a letter to the Postal Inspection Service ("June letter") alleging that Brents was manipulating employee time records in his position as timekeeper. (June 4, 1997 letter attached to Gibbons Cert. as Ex. 6, LK-10.) In the letter, Boss also complained that Brents was bothering her and that she considered his conduct to be a "form of sexual harassment and retaliation because [she] is about to deliver his child." Further, the letter mentioned that Brents had had sex with other women and that he had exposed himself to other women in the facility. (See id.)
The Postal Inspection Service is the law enforcement arm of the Postal Service. Its mission is to investigate allegations of crime against the Postal Service, or against Postal Service employees engaged in the scope of their employment. (Certification of Donna Bellows ("Bellows Cert."), at ¶ 1.)
Donna Bellows ("Bellows"), a Postal Inspector with the Postal Inspection Service, spoke with Boss to investigate Boss' allegations. (Bellows Cert. at ¶ 3.) After interviewing Boss, Bellows referred the timekeeping allegations to another unit of the Postal Inspection Service responsible for investigating complaints of employee fraud. (Id.) While Boss indicated that Brents was bothering her as a result of the former consensual sexual relationship and that Brents had had consensual affairs with other women at work, she did not make any allegations that he had engaged in non-consensual sexual activity. (Id. at ¶ 4.) Nevertheless, Bellows told Boss that if she believed that she was being subject to sexual harassment, she could make a complaint to the Postal Service EEO Office or to her managers. (Id. at ¶ 5.)
b. August 28, 1998 Letter
On August 28, 1998, Boss wrote a letter to Veto Cetta ("Cetta"), the District Manager for the USPO ("August letter"). In the letter, Boss complained that Brents roamed the facility as he pleased, that he was antagonizing and stalking her, and that there were rumors circulating about their affair. (August 28, 1998 letter attached to Gibbons Cert. as Ex. 6, LK-9.)
In response to Boss' August 1998 letter, Arnie Endick ("Endick"), an Employee and Workplace Intervention Analyst, attempted to speak with both Boss and Brents in the presence of their managers and supervisors. (Id. at ¶ 4.) He explained the USPO's policies regarding workplace behavior and also provided them with copies of the Code of ethical Conduct and the District Zero Tolerance Policy on workplace violence. (Id. at ¶¶ 4-5.) Endick further explained to Brents and Boss the formal Protest Process under the Employee and Labor Relations Manual. (Id. at ¶ 6.)
Endick's duties include dealing with issues impacting the workplace climate, identifying issues of concern to employees and management and developing recommendations and/or alternatives for workplace climate improvement. ( Id . at ¶ 1.)
Boss and Brents declined to discuss their concerns with Endick or with each other. (Id. at ¶ 7.) At no time during the meeting did Boss indicate to Endick that Brents had exposed himself to her or to any other women. (Id. at ¶ 11.) Nor did she indicate that Brents otherwise sexually harassed women or engaged in any non-consensual sexual activity. (Id.)
C. Procedural History
Plaintiff filed this action on October 13, 1999. In her complaint, Plaintiff alleges that Defendants are each liable under 42 U.S.C. § 2000e, et seq., ("Title VII") and the New Jersey Law Against Discrimination ("LAD"). In addition, Plaintiff's complaint includes claims for negligent and intentional infliction of emotional distress against Brents. (Amended Compl., ¶ 31.)
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, and supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367 .
Defendants APWU and the Local moved for summary judgment. This Court granted those motions and dismissed APWU and the Local from this action by Opinion and Order filed December 29, 2000.
Defendants USPO and Brents now separately move for summary judgment.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate only if all the probative materials of the record "show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). The court must resolve all reasonable doubts in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2. (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984); Smith v. Pittsburgh Gage Supply Co., 464 F.2d 870, 874 (3d Cir. 1972).
Under the standards announced by the Supreme Court's trilogy in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original). Where the moving party has made a properly supported motion for summary judgment, it is incumbent upon the nonmoving party to come forward with specific facts to show that there is a genuine issue of material fact for trial. Anderson, 477 U.S. at 248. Thus, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, the nonmoving party "may not rest upon mere allegations or denials", Fed.R.Civ.P. 56(e), but must produce sufficient evidence that will reasonably support a jury verdict in its favor. J.E. Mamiye Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987). The nonmoving party may not merely raise "some metaphysical doubt as to material facts." Matsushita, 475 U.S. at 586.
B. USPO's Motion for Summary Judgment
1. New Jersey Law Against Discrimination Claims
Title VII provides the exclusive remedy for federal employees alleging workplace discrimination. Brown v. General Services Administration, 425 U.S. 820, 832-35 (1976); Holmes v. Federal Aviation Administration, 1999 WL 771594, at *3 (D.N.J. Sept. 29, 1999) (dismissing LAD claims because Title VII provides the exclusive remedy for federal employees). Plaintiff cannot and does not dispute that she is a federal employee. Therefore, her LAD claims against Defendant USPO must be dismissed.
2. Title VII
An employer commits an unlawful employment practice and therefore violates Title VII of the Civil Rights Act of 1964 by
. . . fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2 (a)(1). Title VII prohibits sexually discriminatory conduct which either has an adverse economic impact on the complainant or creates a hostile or offensive work environment. See Stroehmann Bakeries v. Local 776, International Brotherhood of Teamsters, 969 F.2d 1436, 1441 (3d Cir.), cert. denied, 1992 WL 307149 (1992).
To prove a hostile work environment claim under Title VII, a plaintiff must show: (1) she suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would affect a reasonable person of the same sex in that position; and (5) respondeat superior liability. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990); Drinkwater v. Union Carbide Corp., 904 F.2d 853, 860 (3d Cir. 1990); see also Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986). The USPO contends that Plaintiff cannot sustain her Title VII hostile work environment claim because she cannot prove either that the alleged harassment was severe or pervasive, or the existence of respondeat superior liability.
a. Severe or Pervasive
In determining whether a plaintiff has adequately demonstrated a hostile or abusive working environment, the court must examine the totality of the circumstances. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). These circumstances may include: "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." Id.
This Court finds that there is sufficient proof that the alleged incidents of harassment were severe or pervasive. Plaintiff alleges numerous incidents over a multi-year period. The fact that Defendant characterizes such behavior as just "isolated, disparate acts" does not justify summary judgment. Exposing himself to Plaintiff, touching her, and making comments such as "how did you like it, it wasn't even hard yet," are inherently sexual. Given that such conduct and remarks (assuming they are not time-barred) show clear gender-based harassment, a reasonable jury would be entitled to interpret Brents' licking of lips and making of facial expressions at Plaintiff "as part of a complex tapestry of discrimination." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996). As stated by the Third Circuit:
The USPO has not raised a statute of limitations argument with respect to the earlier acts of harassment alleged by Plaintiff. Because the USPO has not been briefed the issue and in light of the Court's ruling on USPO's motion, the Court need not address the statute of limitations issue.
A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on the individual incidents, but on the overall scenario . . . ". . . What may appear to be a legitimate justification for a single incident of alleged harassment may look pretextual when viewed in the context of several other incidents."Id. (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990) (quoting Vance v. Southern Bell Teleph. and Teleg. Co., 863 F.2d 1503, 1510 (11th Cir. 1989))).
Viewing the evidence in the light most favorable to Plaintiff, there is sufficient evidence for a jury to find that the alleged sexual harassment was severe or pervasive.
b. Respondeat Superior Liability
As noted above, the fifth element of the Andrews test requires the existence of respondeat superior liability. To establish employer liability for a hostile work environment, a plaintiff must also show that the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action. Andrews, 895 F.2d at 1486;Kunin v. Sears Roebuck and Co., 175 F.3d 289, 293-94 (3d Cir.), cert. denied, 528 U.S. 964 (1999); see also 29 C.F.R. § 1604.11(d) (An employer may be liable for acts of sexual harassment in the workplace between co-workers if it "(or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.")
The USPO argues that it is entitled to summary judgment because it had no actual or constructive knowledge of the alleged harassment until March of 1999, and once it had knowledge, it took prompt and effective remedial action. In response, Plaintiff argues that the USPO did in fact have notice that Brents had a propensity to sexually harass women and would continue to engage in such improper behavior. Therefore, Plaintiff maintains that the USPO should have investigated Brents' purported sexual misconduct, but failed to adequately do so. Plaintiff's contentions are without merit.
i. Knowledge
"[A]n employee provides notice to the employer only when he or she complains about sexually offensive conduct." Kunin, 175 F.3d at 291. Plaintiff does not dispute that prior to March 9, 1999, she did not complain to anyone with supervisory or managerial authority at the USPO about Brents. Therefore, prior to March 9, 1999, the USPO did not have actual knowledge of Brents' improper conduct towards Plaintiff.
Constructive notice, however, can arise in two contexts: "where an employee provides management level personnel with enough information to raise a probability of sexual harassment in the mind of a reasonable employer, or where the harassment is so pervasive and open that a reasonable employer would have had to be aware of it." Id. at 294.
Here, by Plaintiff's own testimony, Brents' alleged sexual harassment only occurred when the two of them were alone or when no one else could witness it. Therefore, a reasonable employer would not have been aware of the purported misconduct.
Plaintiff does, however, claim that the USPO should have known of Brents' propensity for sexual harassment because of Boss' June and August letters. The Court disagrees. First, assuming that the content of the June letter advised of sexual harassment, which the USPO disputes, the letter was written to Postal Inspectors rather than to management. Although Plaintiff contends that the Postal Inspectors had an affirmative duty to advise the appropriate agency of Boss' allegations, she provides no authority to support that position.
Second, Boss, having made no allegations of non-consensual sexual activity in the June letter, was advised by Bellows that if she believed that she was being subject to sexual harassment, she could make a complaint to the Postal Service EEO Office or to her managers. There is no evidence that Boss filed any such complaint.
As for the August letter, it contained absolutely no allegations against Brents of sexual harassment or non-consensual sexual activity; rather, the letter only expressed Boss' concerns regarding rumors circulating about her affair with Brents, the fact that Brents roamed the facility as he pleased, and that Brents was antagonizing and stalking her. "[W]hen employees' complaints do not refer to sexually offensive behavior, employers are not on constructive notice of sexual harassment."Kunin, 175 F.3d at 294.
Finally, under Plaintiff's theory of what constitutes actual or constructive notice, once an employee is accused of sexual harassment, an employer would arguably know or should know of any subsequent improper conduct by the alleged offender against any other employee. This would leave an employer with no option but to either isolate a male employee from all female workers, which in most employment situations would probably be impractical, or to terminate him after one allegation of harassment regardless of the severity of the conduct for fear that in the future, the employee might again commit an infraction. Given the litigious nature of today's society, it is not unrealistic to assume termination would subject employers to lawsuits by the discharged employee for wrongful termination.
Plaintiff has presented no evidence for a jury to find that the USPO had actual or constructive notice of Brents' alleged sexual harassment of Plaintiff.
ii. Effective Remedial Measures
An employer is not liable for sexual harassment where there is an effective policy for reporting sexual harassment, and the employer takes remedial action reasonably calculated to prevent further harassment after receiving notice of the conduct. Knabe v. Boury Corp., 114 F.3d 407, 412-14 (3d Cir. 1997).
Plaintiff does not dispute that the USPO had an effective policy for reporting sexual harassment, that she was aware of such a policy, and that she had seen posters and phone numbers to call for assistance. Further, she knew that the anti-harassment policies were effective given that she had received a satisfactory response from management when she complained to supervisors about sexual remarks made by another employee, Rick Velardi.
Plaintiff claims that she could not complain about Brents' conduct as she did about Rick Velardi's comments because Brents is "union." (Pl.'s Dep. Tr. I, at 127:14-16, 130:17-21.) Plaintiff, however, fails to explain why Brents being part of a union prevented her from complaining to management.
Moreover, after the USPO became aware of Brents' alleged sexual harassment in March of 1999, Plaintiff does not dispute that the USPO initiated an investigation and suspended Brents for 14 days without pay. As a result, the sexual harassment stopped.
Further, when Plaintiff complained to management about Brents' "tone of voice" and "sly remarks" over the radio, management removed Brents from the expediter's position so that Brents was no longer communicating with Plaintiff over the radio.
Finally, it is uncontested that management investigated the incident involving the "F*** Lorraine" that had been scratched on a desk. Because the USPO, despite its investigation, could not determine who the writer was, it would be unfair to impose upon an employer the duty to take effective remedial action against a person whose identity is unknown. Notwithstanding, a USPO supervisor still talked to Brents about the incident, warning him of the consequences of sexual harassment.
Plaintiff has failed to establish the existence of a genuine issue of material fact regarding whether the USPO took immediate and appropriate corrective action. Plaintiff's conclusory assertion that the USPO failed to provide effective remedial action has not been supported with any evidence to reasonably support a jury verdict in her favor on this issue.
Therefore, summary judgment in favor of the USPO on Plaintiff's Title VII claim is granted.
C. Brents' Motion for Summary Judgment
1. LAD Claims
As noted above, because Plaintiff is a federal employee, Title VII is Plaintiff's only recourse for allegations of workplace discrimination.Brown, 425 U.S. at 832-35. Moreover, the Third Circuit has predicted that individuals cannot be held directly liable under the LAD. Hurley v. Atlantic City Police Dep.'t, 174 F.3d 95, 125 (3d Cir. 1999), cert. denied, 120 S.Ct. 786 (2000). Therefore, Plaintiff's LAD claims against Brents must be dismissed.
2. Title VII
It is well established that individual employees cannot be held liable under Title VII. Sheridan v. E.I. DuPont De Nemours Co., 100 F.3d 1061 (3d Cir. 1996). Therefore, Plaintiff's Title VII claims against Brents must also be dismissed.
3. Negligent Infliction of Emotional Distress
Brents claims that Plaintiff cannot sustain a cause of action for negligent infliction of emotional distress. To recover for negligent infliction of emotional distress, a plaintiff must establish the following: "(1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress." Portee v. Jaffee, 84 N.J. 88, 101 (1980).
Plaintiff has not responded to Brents' contention that this claim should be dismissed. Indeed, even assuming that Plaintiff can establish that she suffered severe emotional distress as a result of Brents' misconduct, she cannot satisfy the first three factors of the Portee test. Therefore, Plaintiff's claim for negligent infliction of emotional distress is dismissed.
4. Intentional Infliction of Emotional Distress
Brents also challenges Plaintiff's ability to maintain a claim for intentional infliction of emotional distress. In response, Plaintiff provides only a single conclusory sentence that Brents "is liable to plaintiff under tort law for his intentional harassment of plaintiff." (Pl.'s Opp'n Br., at 15.) Plaintiff presents no support for why the intentional infliction of emotional distress claim should not be dismissed.
"[T]o establish a claim for intentional infliction of emotional distress, the plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe." Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988) (citation omitted). Brents correctly notes that his alleged conduct, even if taken as true, cannot be characterized as so extreme and outrageous or that it caused Plaintiff such severe emotional distress such that a cause of action for intentional infliction of emotional distress can be sustained.
To qualify as extreme and outrageous, the conduct must be "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. Courts have recognized that in the employment context, it is extremely rare for courts to find that conduct rises to the level of outrageousness to provide a basis for recovery. Ferraro v. Bell Atlantic Co., 2 F. Supp.2d 577, 588 (D.N.J. 1998). This is particularly so where the sexual harasser is a co-worker rather than a supervisor. Id. at 589, n. 7 (noting that in Taylor v. Metzger, 152 N.J. 490 (1998), defendant's offensive slur survived motion for summary judgment because "'[d]efendant was not an ordinary co-worker of plaintiff; he was the Sheriff of Burlington County, the chief executive of the office in which plaintiff worked.'")
Here, while Brents' purported misconduct was crude, demeaning, and offensive, the Court cannot find that Brents conduct was so outrageous and extreme that is exceeds all possible bounds of decency and is utterly intolerable in a civilized community. See id.
Lastly, Plaintiff cannot establish that she suffered severe emotional distress as a result of Brents' alleged sexual harassment. "`Severe emotional distress means any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, . . . .'" Taylor v. Metzger, 152 N.J. 490, 515 (1998) (citing Poole v. Copland, Inc., 481 S.E.2d 88, 93 (1997)). The distress suffered by the plaintiff must be "so severe that no reasonable man could be expected to endure it." Buckley, 111 N.J. at 366-67. As noted by Brents, Plaintiff has failed to timely produce any expert reports establishing that Plaintiff has suffered severe emotional distress as a result of Brents' alleged misconduct.
Further, Plaintiff's claimed "headaches, anxiety, stress, loss of appetite, lack of sleep, weight loss, etc." (Pl.'s Response to First Set of Interrogatories attached to Certification of Michael S. Kasanoff as Ex. I, at ¶ 14), are insufficient as a matter of law to sustain a finding of severe emotional distress. See Buckley, 111 N.J. at 368-69 (finding plaintiff's claims of loss of sleep, aggravation, embarrassment, headaches, and nervous tension to be insufficient as a matter of law to support a finding that the mental distress was so severe that no reasonable man could be expected to endure it).
Therefore, Plaintiff's claim for intentional infliction of emotional distress is dismissed.
D. Plaintiff's Cross Motion for Partial Summary Judgment
Plaintiff cross moves for a "judgment" that Defendant USPO had notice of the alleged harassment. Plaintiff's motion is improperly brought as a summary judgment motion. Rule 56 of the Federal Rules of Civil Procedure permits a party to seek recovery "upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment." Plaintiff, however, does not seek judgment on a claim, counterclaim, or cross-claim.
In any event, in light of the Court's ruling on Defendant USPO and Brents' motions for summary judgment, Plaintiff's cross motion for partial summary judgment is dismissed as moot.
III. CONCLUSION
For the reasons noted herein, the USPO's motion for summary judgment is hereby granted. Brents' motion for summary judgment is granted. Plaintiff's cross motion for partial summary judgment is dismissed as moot.
An appropriate order follows.
O R D E R
This matter having come before the Court on the motion of Defendant United States Post Office (William J. Henderson, Postmaster General) for summary judgment pursuant to Fed.R.Civ.P. Rule 56, and the motion of Defendant Jeffrey Brents for summary judgment pursuant to Fed.R.Civ.P. Rule 56; and on the cross motion of Plaintiff for partial summary judgment; and
The Court having considered the submissions of counsel; and
The Court having decided this matter without oral argument pursuant to Fed.R.Civ.P. 78; and
For the reasons stated in the Court's Opinion filed this day; and
For good cause shown;
It is on this ___ day of April, 2001 hereby ORDERED that Defendant United States Post Office (William J. Henderson, Postmaster General)'s motion for summary judgment is granted; and
IT IS FURTHER ORDERED that all claims against Defendant United States Post Office (William J. Henderson, Postmaster General) are dismissed; and
IT IS FURTHER ORDERED that Defendant Jeffrey Brents' motion for summary judgment is granted; and
IT IS FURTHER ORDERED that all claims against Defendant Jeffrey Brents are dismissed; and
IT IS FURTHER ORDERED that Plaintiff's cross motion for summary judgment is dismissed as moot; and
IT IS FURTHER ORDERED that the Clerk of the Court shall close this case.