Alan Schorr’s Employment Case of The Week ending August 7, 2015

Jones v. Pepper Snapple Group, 2015 N.J. Super. Unpub. LEXIS 1848 (App. Div. August 7, 2015)

The Supreme Court’s decision in Aguas v. State, 220 N.J. 494 (2015) continues to strongly influence employment harassment cases in New Jersey.  Many employment practitioners believed that the Court’s decision to follow federal law and permit employers to assert an affirmative defense that they had an effective anti-discrimination and therefore cannot be held liable under the negligence theory of liability would impede employment harassment cases.  Those fears were reinforced in June in Dunkley v. S. Coraluzzo Petroleum Transporters, in which an Appellate panel affirmed summary judgment in a case that had been remanded by the New Jersey Supreme Court with a direction for the panel to consider Aguas.  This week, however, in Jones v. Pepper Snapple Group, a different appellate panel was very much of the opinion that the decision in Aguas expanded, not limited, the protection of victims of workplace harassment.

Anita Jones was a temporary employee of Pepper Snapple for about 7 months.  She was re-hired as a temporary employee for a month and then was hired as a permanent employee a month later.  After one month as a permanent employee, she resigned citing a sexually hostile working environment.  During her first term of temporary employment, Ms. Jones complained that several co-workers sexually harassed her by repeatedly touching her breasts. When she complained to a supervisor, the supervisor allegedly kept putting his arm around her.  The supervisor allegedly told her, “Temps come a dime a dozen and [if] one don’t do what you want, you get another one.”  As a result, Ms. Jones never complained to management or human resources.

Ms. Jones conceded that there was no further sexual harassment during her second term of employment, but when she was scolded regarding her work ethic, she quit her job and only then reported the prior sexual harassment to human resources.  She declined human resources’ offer to transfer her to a different position.  She filed suit alleging hostile working environment, quid pro quo harassment and constructive discharge.  All three counts were dismissed on summary judgment and this appeal followed.

The Appellate panel recognized that Aguas had confirmed that there are two theories upon which employers may be held responsible for workplace harassment – negligence and vicarious liability.  In analyzing the negligence prong, the Court focused upon the issue of whether there was implementation and enforcement of an effective anti-harassment policy.  Here, the Court noted that it was undisputed that Ms. Jones had never been provided with a copy of the anti-harassment policy and had never been given any training on the employer’s policies. Accordingly, the Court held that the issue of negligence could not be resolved on summary judgment.

With regard to the vicarious liability prong, this panel repeatedly stated that the Aguas decision had “expanded” the definition of who could be considered a supervisor to include “not only employees granted the authority to make tangible employment decisions, but also those placed in charge of the complainant’s daily work activities.”  The Court found that, given Plaintiff’s allegations as to the control that the supervisor had in training her and overseeing her progress, the issue of vicarious liability also could not be resolved on summary judgment.  In a curious footnote, the panel inferred that, prior to Aguas, a employer could escape liability merely by having an effective anti-harassment policy, without regard to vicarious liability.  I am unaware of any New Jersey case that ever held so, but it is clear that while the Dunkley panel believed that Aguas had expanded an employer’s ability to escape liability, the Jones panel believed that Aguas had significantly expanded employees’ protection.

One more interesting point about this case is that the Court affirmed the dismissal of Ms. Jones’s quid pro quo claim without explanation, finding that Ms. Jones’ arguments did not merit discussion.  I am perplexed as why, if there was an issue of fact as to whether the harasser was a supervisor, there is not a question of fact as to whether putting his arm around her and telling her, “Temps come a dime a dozen and [if] one don’t do what you want, you get another one,” would not create a question of fact as to whether Ms. Jones’s acceptance of the sexual harassment was not made a term or condition of her employment.

This is the appellate panel headed by Judge Jose Fuentes, which has found itself in the middle of many important employment law cases over the past few years.  This case leaves future interpretation of Aguas uncertain, but certainly provides an important counterpoint to the Dunkley case and gives employees important arguments for future harassment cases.  Dunkley is being appealed up to the Supreme Court and we will continue to provide updates as they become available.

Plaintiff’s attorney: Mark Mulick.

Defendant’s attorney: Carmen J. DiMaria, Ryan T. Warden, and Robin Koshy, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Judges: Fuentes, Ashrafi, and O’Connor.