Case of The Week for Week Ending January 27, 2017
By Jenelle Hubbard
Edries v. Quick Chek Food Stores, Inc., No. A-0091-15T1, 2017 N.J. Super. Unpub. LEXIS 131 (App. Div. Jan. 20, 2017)
Last week certainly brought a lot of interesting and highly-publicized legal discussions from across the country. But this week, our case of the week focuses on the New Jersey Appellate Division’s decision in Edries v. Quick Chek Food Stores, Inc.
In sum, the case involved a former female employee’s appeal from the Law Division’s order granting the summary judgment dismissal of the complaint that she filed against her former employer, Quick Chek Food Stores, Inc., under the New Jersey Law Against Discrimination (“NJLAD”). The plaintiff alleged several incidents whereby her co-worker sexually harassed her at work, and the multiple reports that she made of the harasser’s conduct. The plaintiff first reported the harasser’s conduct verbally to her supervisor in May 2010, and later reported additional incidents of sexual harassment by the same employee in writing in November 2010.
The plaintiff former employee filed the lawsuit against Quick Chek and her alleged harasser asserting claims of hostile work environment sexual harassment and retaliation. Following the conclusion of discovery, the defendants moved for summary judgment. The trial court granted summary judgment in favor of the defendant-employer, concluding it had “effective procedures for reporting and responding to complaints of harassment.” The trial court further concluded that Quick Chek “did, in fact, respond in an effective way to [plaintiff’s] complaint of harassment,” and with respect to the plaintiff’s retaliation claim, the trial court concluded the record did not show any “adverse employment consequences to [plaintiff’s] complaint.”
Based on agency principles, an employer may be held liable under a number of circumstances for damages resulting from the conduct of its employee(s) which violates the NJLAD. One of those circumstances where an employer will be held liable is where the employer acted negligently or recklessly in responding to an employee’s discriminatory or harassing conduct. In order to show that an employer was negligent in its reaction to discriminatory or harassing conduct, a plaintiff has the burden to prove, among other things, that the employer failed to exercise due care with respect to harassment in the workplace.
Unfortunate for the plaintiff employee in Edries, the Appellate Division concluded that Quick Chek’s anti-harassment procedures were effective and that 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.” In doing so, the panel in Edries seems to have made its own implicit factual conclusion that Quick Chek did not act negligently or recklessly in responding to the employee’s first complaint of sexual harassment, which she verbally made to her supervisor.
Quick Chek’s employee handbook set forth a complaint structure by which its employees could complain about harassment. The plaintiff employee’s verbal complaint of harassment to her supervisor in May 2010 should have triggered a report of harassment to the Vice President of Human Resources and a “thorough administrative investigation of the complaint” should have been initiated by Quick Chek. However, the panel’s decision in Edries does not indicate that Quick Chek took any action whatsoever to investigate or otherwise address the plaintiff’s May 2010 complaint of her co-worker’s harassment even though she followed Quick Chek’s established procedure for reporting harassment and such harassment did not stop until after she complained of his conduct again in November 2010.
Rather, the panel’s decision in Edries seems to excuse such failure on behalf of the employer because the plaintiff “admitted she had no idea what [her supervisor] had done with her May 2010 complaint after she made it,” and “she only asked her supervisor to speak with [the harasser], implicitly telling her not to report the incident to the Director of Human Resources as sexual harassment.” In light of these facts, it is troubling that a court could find that there was no genuine issue of material fact as to whether Quick Check was negligent in its reaction to the plaintiff’s verbal complaints of her co-worker’s sexual harassment in May 2010.
Under the NJLAD, an employer has “a clear duty not only to take strong and aggressive measures to prevent invidious harassment, but also to correct and remediate promptly such conduct when it occurs.” Taylor v. Metzger, 152 N.J. 490, 504 (1998). Certainly an employer cannot be relieved of such duty if one of its employees who complains about workplace harassment asks that the company to speak with the alleged harasser but does not explicitly indicate that they want the employer to take any other corrective or remedial action.
Never take the denial of Summary Judgment for granted, even in cases where it seems clear there is a dispute of material facts.