SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5504-98T2
WILLIAM SHEPHERD and RICHARD
SAYLOR,
Plaintiffs-Appellants,
v.
HUNTERDON DEVELOPMENTAL CENTER,
WILLIAM WALL, Superintendent,
LEON CRONCE, Assistant
Superintendent, ARTHUR SEARFASS,
Assistant Supervisor of
Professional Residential Services,
MARIO SCLAMA, Cottage Training
Supervisor, and IDA GAL, Cottage
Training Supervisor,
Defendants-Respondents,
and
VINCENT MURANTE, Cottage Training
Supervisor, and DONALD STAMBAUGH,
Cottage Training Supervisor,
Defendants.
_________________________________________________________________
Argued October 30, 2000 - Decided January 18, 2001
Before Judges Havey, Wefing and Lefelt.
On appeal from the Superior Court of
New Jersey, Law Division, Hunterdon
County, L-137-97.
James L. Pfeiffer argued the cause
for appellants (Pfeiffer & Winegar,
attorneys; Mr. Pfeiffer, of counsel;
Brian A. Roemersma, on the brief).
Barbara Berreski, Deputy Attorney
General, argued the cause for
respondents Hunterdon Developmental
Center, William Wall, Leon Cronce and
Arthur Searfass (John J. Farmer, Jr.,
Attorney General, attorney; Mary C.
Jacobson, Assistant Attorney General,
of counsel; Ms. Berreski, on the brief).
Cynthia M. Jacob argued the cause for
respondents Mario Sclama and Ida Gal
(Collier, Jacob & Mills, attorneys;
Ms. Jacob, of counsel; John P. Barry,
on the brief).
The opinion of the court was delivered by
LEFELT, J.A.D.
Plaintiffs William Shepherd and Richard Saylor sued their
employer, defendant Hunterdon Developmental Center ("HDC"), and
several supervisory and management employees for creating a
hostile work environment, retaliation, negligent supervision and
conspiracy in violation of New Jersey's Law Against
Discrimination ("LAD"), N.J.S.A. 10:5-1 through -49. Shepherd
and Saylor asserted that defendants treated them unfairly because
they had assisted two other employees in a successful racial
discrimination lawsuit against HDC. Plaintiffs appeal from the
trial judge's summary judgment dismissing their entire complaint.
The judge ruled that Shepherd's complaint was timely only as to
the events that occurred on one specific date and that those
events were insufficient to create a cause of action for hostile
work environment or retaliation. We affirm some of the dismissed
claims in favor of several of the defendants, but reverse and
remand because plaintiffs' allegations, read in the light most
favorable to them, support the theory that defendants' violations
were continuing ones, rendering their complaint timely. In
addition, disputed questions of material fact existed regarding
plaintiffs' hostile work environment claim and Saylor's
retaliation claim against HDC and two supervisors, precluding
summary judgment.
I.
HDC is a State-operated facility providing long-term care
services for physically and mentally handicapped clients. It
consists of several cottages, including Cottage #22 where the
plaintiffs worked as staff. Each cottage is divided into eight
dorms, with four clients rooming together in each dorm. Cottage
#22, thus, had a total of thirty-two clients. All were severely
retarded males, some assaultive or self-abusive, ranging in age
from twenty to sixty-five years old.
Both plaintiffs Shepherd and Saylor were cottage training
technicians in Cottage #22, working the 11 p.m. to 7 a.m. shift
with one or two other cottage training technicians. Each cottage
training technician was responsible for two to three dorms.
Cottage training technicians attend to the clients' needs, fold
laundry, perform bed checks every thirty minutes and make sure
each dorm is clean. With the exception of an eight-month period,
Shepherd worked at Cottage #22 continuously from October 1983
until March 1995. Saylor remained in Cottage #22 from December
1984 until his retirement in August 1995, at the age of sixty-
five.
In 1989, racial problems surfaced in Cottage #22. Two
African-American employees on plaintiffs' shift, Annie Sampson
and Donald Greenfield, sued HDC and their direct supervisors,
Mario Sclama and Ida Gal, for discriminating against them and
creating a hostile work environment. Sclama and Gal were also
plaintiffs' supervisors.
Shepherd and Saylor supported Sampson and Greenfield in the
litigation. From 1989 to 1990, they verbally expressed their
displeasure about racial discrimination in the cottage, not only
to Sclama and Gal, but also to HDC's assistant supervisor of
professional residential services and the assistant
superintendent. Shepherd wrote an October 18, 1990 statement on
behalf of Greenfield. Both Shepherd and Saylor wrote October 12,
1990 statements supporting Sampson. Saylor claimed that he wrote
about three to four memos in the early 1990's concerning racial
harassment in the cottage. During this period, management at HDC
considered Shepherd, Saylor, Sampson and Greenfield all to be
"troublemakers."
The hostile environment continued until Sampson and
Greenfield were forced to leave the cottage. Things remained
relatively quiet until the late summer and early fall of 1994,
when the lawsuit came to trial. The lawsuit was tried from
October 24 through December 19, 1994 and was won by Sampson and
Greenfield. The jury awarded Sampson compensatory damages of
$675,000, Greenfield compensatory damages of $335,000, and
punitive damages to each in the amount of $252,000.
Beginning in November 1994, when Sclama and Gal had to
appear in court for the Sampson and Greenfield law suit, they
began to take out their frustrations on Shepherd and Saylor, who
were the only two workers left in Cottage #22 who had been there
when the earlier racial problems had occurred. Shepherd claimed
that Gal said to him, "We're being sued and you and Mr. Saylor
are to blame for it." Shepherd was also told that his name had
been mentioned at the trial and that "they" were quite upset
about it. Plaintiffs also believed that the statements they had
previously given regarding the racial problems in Cottage #22
were introduced against the defendants at the trial. Gal also
said, on more than one occasion during the law suit, that "what
goes around comes around" and that plaintiffs would be "sorry"
for not backing the agency and agreeing with her side in the
suit. Gal told Shepherd that both she and Sclama would be
watching and writing down everything that he and Saylor did. Gal
also told Saylor that she was a "survivor" and that she would do
whatever she had to in order to survive. Both Shepherd and
Saylor understood the comments that were made during the pendency
of the trial to mean that they would be harassed as Gal and
Sclama intended to get even with them.
From the time of the trial forward, Shepherd and Saylor
noticed that Sclama and Gal began to supervise them much more
aggressively. Sclama focused on plaintiffs' work "in a very
technical sense." Though Sclama had always been a stickler for
details, he began criticizing all the little things plaintiffs
did that they had been doing the same way for the past twelve
years. He spoke to plaintiffs in a hostile, unfriendly, and
sharp tone. Sclama never said hello to them anymore and did not
engage them in any conversation that was not work-related. While
in the past, they had shared meals together or spoken about
baseball, Sclama no longer participated and always looked and
acted as if he were angry at them.
At Christmas time in 1994, Sclama gave gifts to all the
other employees on their shift except for plaintiffs. One time,
another worker was allowed to take an extra half-hour break
because there was no coffee, but Shepherd was not given the same
option. When Shepherd called out sick around Christmas and New
Year's, he was put on "medical verification," meaning the
management felt he had abused his sick time. After a union
grievance hearing on February 3, 1995, Shepherd was immediately
removed from medical verification.
One evening in January 1995, Shepherd reported to Gal that a
client needed to be medicated. Gal made Shepherd wait three
hours before he received the medication. This delay caused
Shepherd to have to deal with a very unruly client. In the
ordinary situation, a supervisor called for medication
immediately or otherwise assisted with the client. In another
instance, in early February, Sclama ordered Shepherd to shower a
client who had urinated in bed. Previously, the standard
operating procedure for this client was to provide dry pajamas
and a dry bed and put him back to sleep, without a shower.
Because the client was showered in the middle of the night, he
became violent, self-abusive and destructive in his dorm room.
Shepherd believed that Sclama purposely created this situation to
get back at him and make him upset.
On February 10, 1995, after the trial had concluded, another
employee in the cottage laughed to Gal and Sclama, in a loud
voice, that a newspaper article reported that the State was
appealing the verdict and that Sampson and Greenfield would not
be getting their money yet. Shepherd believed that defendants
had told the employee to make this comment in front of him.
Another worker told Shepherd that he had heard from certain
supervisors that the superintendent was "mad as hell" and that
people were being transferred who had written statements not
agreeing with their supervisors. This worker also told Shepherd
that it was not too late for him and Saylor to say they were
wrong about what happened. Again, Shepherd believed that
defendants were behind this conversation. Shepherd also heard
Sclama say that people might have to go to jail; Shepherd took
that as a veiled threat against him and Saylor.
On April 19, 1995, the assistant supervisor of residential
services sent Saylor a "letter of caution" concerning "patterned
absences" that Saylor believed was retaliatory. Also, Saylor
understood that an employee could be dismissed for having three
charges of the same offense sustained against him. Saylor
believed that following the lawsuit Sclama was setting him up to
be disciplined. In fact, Sclama had written him up twice for
coming back late from a break. The cottage training supervisor
also charged Saylor with using inappropriate language; on March
3, 1995 Sclama charged Saylor with using the "F" word in front of
clients; and on April 5, 1999, Sclama brought disciplinary
charges against Saylor for using a certain slang word to refer to
a group of people back on January 20, 1995. Saylor was suspended
for three days as a result of the first incident; the second
incident did not result in any actual discipline against Saylor
because he denied the allegation; and the agency could not prove
its case against him with respect to the third incident. Saylor
feared that Sclama would obtain three discipline convictions
against him so he would be terminated before he earned the ten
years of service he needed for retirement.
During the trial, both plaintiffs initially refused to put
anything in writing to HDC management regarding their complaints
because they were afraid of being transferred out of the cottage.
However, at the urging of the affirmative action officer, on
February 1, 1995, both plaintiffs wrote handwritten letters to
HDC's superintendent. They told the superintendent about the
retaliation and harassment in Cottage #22 which had started "all
over again" and "worse than ever." They identified specific
incidents which occurred and named Sclama and Gal as the
culprits. Both men identified the emotional stress that this
behavior was causing them, and Shepherd in particular noted his
desire to remain in Cottage #22, where he had been for twelve
years with mostly the same clients, all of whom knew and liked
him.
In response to these letters, the superintendent called a
shift meeting on February 9, 1995 and scheduled counseling
sessions for the shift on March 15, 1995. Plaintiffs claimed
that the shift meeting was ineffective, and due to late notice,
they were unable to attend the counseling sessions.
Plaintiffs filed complaints with the agency's affirmative
action officer. According to the form filed by Shepherd on March
2, 1995, he identified specific dates on which the alleged
retaliatory harassment had occurred. The first date was November
30, 1994, and the last was February 27, 1995, or three days
before his affirmative action complaint was filed.
During the last week of February or early March 1995,
Shepherd requested a transfer to Cottage #7. When Gal found out
about his request, she remarked, "[w]e were going to get rid of
you anyway." Shepherd began working in the new cottage on March
18, 1995. While the transfer was initially stressful because he
had to learn the behaviors and needs of all new clients, Shepherd
admitted that he was much happier in his new assignment and that
his performance ratings had improved. In fact, his new
supervisor referred to him as an "asset."
Saylor filed for retirement on March 17, 1995, and his last
work day was in July 1995, with his retirement beginning in
August 1995. He claimed that he retired earlier than he
otherwise would have because of the harassing behavior of his
employer and supervisors.
On December 22, 1995, both plaintiffs received responses to
their affirmative action complaints, in which the Department of
Human Services concluded that there was no reprisal against them
for their participation in the prior lawsuit and that there was
no probable cause to support their charges. On January 12, 1996,
both plaintiffs appealed that ruling to the Department of
Personnel. As of March 22, 1999, the Department had not yet
ruled on the appeal.
In the meantime, in May 1995, plaintiffs had filed
complaints with the Equal Employment Opportunity Commission
("EEOC"). On Shepherd's application he listed the dates of harm
as November 1994 to March 1995 and claimed that the harassment
continued until he was transferred to another cottage. The EEOC
sent Shepherd a proposed "Charge of Discrimination," and when he
returned this form on November 25, 1996, he identified the last
date of harm as February 27, 1995. On May 7, 1997, the EEOC
advised Shepherd that he had the right to institute a civil
action under Title VII of the Civil Rights Act within ninety
days.
The trial court noted that the instant complaint was filed
on February 27, 1997, and that the last act of harassment or
retaliation against Shepherd occurred on February 27, 1995, and
the last such act against Saylor occurred on February 10, 1995.
The court also noted that the last act of misconduct committed by
defendant Gal was alleged to have occurred in December 1994. The
court rejected plaintiffs' arguments that the harassment
continued until March 18, 1995, the date Shepherd transferred and
until August 1995 for Saylor, the date he retired. The judge
also rejected plaintiffs' contention that the continuing
violation theory applied in this case.
Therefore, the trial judge concluded that all of Saylor's
claims were time-barred, including his constructive discharge
claim. Regarding the one actionable event that occurred on
February 27, 1995, the court noted that Shepherd alleged that
Sclama was unfriendly and nasty to him all night during his
shift. Sclama did not talk to Shepherd but was very friendly
with another cottage training technician and talked and joked
with her most of the night. Shepherd claimed he felt sick and
tense because of this treatment. The trial judge noted that
there was no adverse employment decision taken as a result of
this conduct and no altering of the terms or conditions of
Shepherd's employment. The judge concluded that the February 27
conduct was not sufficiently severe or pervasive to be
actionable.
The court also found that plaintiffs failed to establish a
factual issue leading to the individual liability of Gal and
Sclama. The court believed that there was no evidence that any
supervisor abused their authority to create a hostile work
environment. Accordingly, the judge granted summary judgment in
favor of all defendants on all of plaintiffs' claims.
II.
A two-year statute of limitations governs LAD claims.
Montells v. Haynes,
133 N.J. 282, 292 (1993). Plaintiffs
acknowledged that the defendants began their retaliatory actions
against them in November 1994, shortly after Sampson's and
Greenfield's discrimination case came to trial. Because the
complaint was filed on February 27, 1997, however, plaintiffs had
to show that their cause of action accrued no earlier than
February 27, 1995. Ali v. Rutgers, ___ N.J. ___ (2000). A cause
of action accrues when the right to institute and maintain a suit
first arises. Holmin v. TRW, Inc.,
330 N.J. Super. 30, 35 (App.
Div.), certif. granted, ___ N.J. ___ (2000). Thus, unless the
continuing violation theory applies, plaintiffs' suit was time-
barred.
The continuing violation theory is an equitable exception to
the statute of limitations. Bolinger v. Bell Atlantic,
330 N.J.
Super. 300, 306 (App. Div.), certif. denied,
165 N.J. 491 (2000).
In Ali v. Rutgers, supra, ___ N.J. at ___, the Court noted that
when an individual is subject to a continual and cumulative
pattern of tortious conduct, the statute does not begin to run
until the wrongful action ceases. See also Wilson v. Wal-Mart
Stores,
158 N.J. 263, 272 (1999). "'[O]nce a pattern of
harassment has created a psychologically offensive work
environment, the status quo of such continuous wrongful conduct
can be based on the harasser's mere presence.'" Id. at 272-73
(quoting Bustamento v. Tucker,
607 So.2d 532, 541 (La.
1992)(citations omitted)). Thus, when the acts are continuous
"'on an almost daily basis, by the same actor, of the same
nature, and the conduct becomes tortious and actionable because
of its continuous, cumulative, and synergistic nature,' the
statute of limitations period does not commence until the final
act has occurred or the conduct has ceased." Wilson v. Wal-Mart,
supra, 158 N.J. at 273 (quoting Bustamento v. Tucker, supra, 607
So.
2d at 542); Bolinger v. Bell Atlantic, supra, 330 N.J. Super.
at 306.
For discriminatory conduct to fit within the continuing
violation doctrine, it must be intentional, pervasive, and
regular and consist of more than the occurrence of isolated or
sporadic acts. In addition, the plaintiff must demonstrate that
at least one act of harassment or discrimination occurred within
the filing period. West v. Philadelphia Elec. Co.,
45 F.3d 744,
754-56 (3d Cir. 1995); Bolinger v. Bell Atlantic, supra, 330 N.J.
Super. at 307; Beck v. Tribert,
312 N.J. Super. 335, 346 (App.
Div.), certif. denied,
156 N.J. 424 (1998). It is improper for
an employee to invoke the doctrine to resurrect grievances "long
past" by appending them to a current complaint. Erdmann v. Board
of Educ. Union County Reg'l High School Dist. No.1,
541 F. Supp. 388, 392 (D.N.J. 1982).
To determine whether alleged violations are continuing, we
must consider the subject matter of the violations (i.e., whether
they are of the same type), their frequency and their permanence.
West v. Philadelphia Elec., supra, 45 F.
3d at 755 n.9; Bolinger
v. Bell Atlantic, supra, 330 N.J. Super. at 307. It is
recognized that hostile work environment claims often "straddle
both sides of an artificial statutory cut-off date," West v.
Philadelphia Elec., supra, 45 F.
3d at 755 (citation omitted), and
that to establish these claims, evidence is often relied on
concerning events occurring long before the relevant filing
periods. Ibid. The analysis should concentrate not on
individual incidents, but on the overall scenario and the work
atmosphere as a whole. Id. at 756.
It bears repeating in this case that on a motion for summary
judgment, the evidence presented must be "viewed in the light
most favorable to the non-moving party," and all inferences must
be drawn in favor of that party. Brill v. Guardian Life Ins. Co.
of Am.,
142 N.J. 520, 535-36, 540 (1995). Here, Shepherd alleged
that defendants continued to discriminate against him until he
transferred out of Cottage #22, on March 18, 1995, and that the
court erred in focusing only on his handwritten notes and on the
documents he submitted with the administrative grievance he filed
with the Department of Personnel.
Shepherd's administrative grievance was filed on March 2,
1995, only three days after he alleged that the so-called last
harm occurred. However, Shepherd remained in Cottage #22 another
two weeks, and there is no evidence that anything changed.
Sclama and Gal remained his supervisors and nothing dissipated
whatever antipathy they felt toward Shepherd for his role in the
discrimination law suit. Thus, it was reasonable to infer that
the same conduct he had been subjected to for the prior three or
four months continued. Moreover, in his EEOC complaint, filed
several months after Shepherd's administrative grievance,
Shepherd specifically indicated that the dates of harm ran from
November 1994 to March 1995 and that the harassment continued
until he transferred to a different cottage.
With respect to Saylor, in opposing summary judgment, Saylor
submitted a certification in which he identified several specific
acts which occurred after February 27, 1995. For example, on
March 3, 1995, Sclama accused Saylor of using the "F" word in
front of clients. On April 5, 1995, Sclama brought another
disciplinary charge against Saylor for using foul language on
January 20, 1995. On April 19, 1995, the assistant supervisor of
professional residential services wrote to Saylor cautioning him
regarding his abuse of sick leave.
Thus, both Shepherd and Saylor had evidence supporting their
contention that the last act of retaliation occurred within the
two-year filing period. However, the trial court also found that
the harassment alleged by plaintiffs did not rise to the level of
pervasive, regular and intentional conduct.
The very essence of a hostile work environment claim is its
continuing nature. Rarely will just one act of harassment alert
an employee to a potential lawsuit. It is only when the same
type of conduct continues over and over again, "on an almost
daily basis," for a prolonged period of time, that the employee
will realize that he or she has a cause of action. That was the
very situation that confronted the plaintiffs here.
Sampson and Greenfield were subjected to purposeful racial
discrimination that upper-level management knew and lied about
and even tried to cover up. Whatever factors motivated
defendants to discriminate against Sampson and Greenfield and
then lie about it in 1989 or 1990 were still present in the work
place as evidenced by defendants telling plaintiffs that they
would pay for supporting their former co-workers. Viewed in this
light, plaintiffs established a policy or practice of continuing
discrimination. Yet, plaintiffs candidly admitted that until the
Sampson and Greenfield case came to trial, their working
conditions were relatively peaceful. Plaintiffs did not assert
the long past grievances of 1989 and 1990. It was only after the
case came to trial that the harassment started anew. This was
not a case where plaintiffs were merely trying to resurrect
grievances "long past" by appending them to a current complaint.
The grievances that plaintiffs established from November
1994 until March 1995 were sufficiently similar in nature,
frequent in occurrence, and permanent in duration to be
considered "continuing." The close supervision, absence of social
contact, direct hostility, specific and inferential threats, and
the disciplinary charges all began after the trial started and
continued until Shepherd transferred and Saylor applied for early
retirement. Plaintiffs were not subjected to sporadic and
isolated incidents, but rather to pervasive, regular and
intentional conduct. We believe that plaintiffs' complaint
should not have been dismissed based on the statute of
limitations bar because the complaint asserted continuing
violations and was, therefore, timely brought.
III.
Because the trial judge found all of Saylor's claims time-
barred, he considered the merits of only Shepherd's February 27,
1995 allegation. The judge believed that this one episode was
not sufficiently severe or pervasive to lead a reasonable person
to believe that the terms or conditions of employment had been
altered. Consequently, he dismissed Saylor's and Shepherd's
claims that they were subjected to a hostile work environment.
Because of the continuing nature of the harassment, however, the
entire period of harassment must be considered.
To establish a cause of action based on a hostile work
environment, plaintiff must prove conduct that would not have
occurred but for the employee's protected status under the LAD,
that is severe or pervasive enough to make a reasonable person
believe the conditions of employment have been altered and that
the working environment is hostile or abusive. Lehmann v. Toys
'R' Us, Inc.,
132 N.J. 587, 603-04 (1993).
Defendants do not concede that plaintiffs were in a
protected status by virtue of their support of the racial
discrimination claim. However, N.J.S.A. 10:5-12d, provides that
it is unlawful "to coerce, intimidate, threaten or interfere with
any person . . . on account of that person having aided or
encouraged any other person in the exercise or enjoyment of, any
right granted or protected by the act." In view of plaintiffs'
assistance of Greenfield's and Sampson's litigation, plaintiffs'
status to sue under the LAD is, at the very least, a question of
fact to be resolved at trial. Accordingly, we proceed to analyze
defendants' strong contention that defendants' conduct was not
sufficiently severe or pervasive to constitute an LAD violation.
It is the harassing conduct that must be severe or
pervasive, not its effect on the employee or the work
environment. Lehmann, supra, 132 N.J. at 606. The conduct must
be severe enough to make a reasonable person in the protected
group believe that the conditions of work have been altered and
that the environment is hostile or abusive. Taylor v. Metzger,
152 N.J. 490, 506 (1998). Evidence of specific, tangible,
adverse changes are not required. Id. at 507.
Moreover, by using the disjunctive requirement of "severe or
pervasive," Lehmann recognized that many plaintiffs claiming a
hostile work environment allege numerous incidents that, if
considered individually, would not be sufficiently severe to make
the work environment intimidating or hostile. Lehmann v. Toys
'R' Us, supra, 132 N.J. at 607. The severity or seriousness of
the conduct may vary inversely with the pervasiveness or
frequency of the conduct, and, therefore, the court "must
consider the cumulative effect of the various incidents." Ibid.
We agree with defendants that some of the acts of harassment
charged by plaintiffs do not suffice by themselves to constitute
a hostile work environment. The LAD is not a general civility
code for workplace conduct. Neither rudeness nor lack of
sensitivity alone constitutes harassment, and simple teasing,
offhand comments, and isolated incidents do not constitute
discriminatory changes in the terms and conditions of one's
employment. Heitzman v. Monmouth County,
321 N.J. Super. 133,
147 (App. Div. 1999).
Thus, a supervisor's decision to no longer socialize with a
worker or be cordial would not alone be actionable. In this
case, however, we must be sensitive to the nature of this
particular employment. Sclama's and Gal's acts to isolate and
alienate plaintiffs from their colleagues and the administration
were taken in an unusual work environment. The parties worked
with only a few other persons in a residential cottage housing
thirty-two physically and mentally disabled adult males. To
adequately service such a clientele, greater cordiality and
cooperation is required among coworkers than in many other work
environments.
In addition, and most significantly, the supervisors'
conduct has to be viewed in the context of other remarks made by
Sclama and Gal, which were actionable. For example, because
plaintiffs supported their coworkers in the racial discrimination
law suit, both defendants were alleged to have threatened
plaintiffs that they would be more closely supervised and managed
than other employees who had not taken the "wrong" side in the
Sampson/Greenfield litigation. Moreover, plaintiffs were treated
differently from the manner in which they were treated before the
Sampson/Greenfield litigation. On more than one occasion Gal
told plaintiffs that, "what goes around comes around," in
reference to their support of the litigation. Plaintiffs alleged
that Sclama and Gal cruelly made what would normally be difficult
work situations purposely more trying. Both plaintiffs also
alleged that they were not given little "perks" that other
employees were given, and Saylor in particular alleged that
Sclama started to write him up for picayune violations of work
rules. Taken together and considered in the context of the work
environment, plaintiffs' grievances appear more serious than
trivial.
Again, by themselves, these instances might not be
actionable. A supervisor is obviously allowed to enforce work
rules and regulations. However, their enforcement must be even-
handed and cannot discriminate against employees based on their
protected status. So, when a supervisor verbally chastises an
employee for defending the rights of minority coworkers who
choose to sue the employer (and prevail in their suit), the
conduct starts to look more nefarious than benign.
Moreover, this case was decided on summary judgment. Under
such circumstances, the trial judge must give plaintiffs the
benefit of all favorable inferences from the evidence presented,
and their allegations should have been accepted as true. Once
the plaintiffs' allegations are viewed in this light and
sensitivity is accorded the unique work environment, we believe
that plaintiffs established a factual dispute regarding whether
Sclama and Gal created a hostile work environment for plaintiffs.
Thus, summary judgment should not have been granted on this
claim.
IV.
Plaintiffs argue that the trial court also erred in
dismissing their retaliation claim on the ground they failed to
prove an adverse employment decision. To establish a cause of
action for retaliation under the LAD, plaintiff must prove that
he or she engaged in protected activity known to the defendant,
that he or she was subjected to an adverse employment decision by
the defendant and that there was a causal link between the
protected activity and the adverse employment decision. Woods-
Pirozzi v. Nabisco Foods,
290 N.J. Super. 252, 266-67 (App. Div.
1996); Romano v. Brown & Williamson Tobacco Corp.,
284 N.J.
Super. 543, 548-49 (App. Div. 1995); Jamison v. Rockaway Township
Bd. of Educ.,
242 N.J. Super. 436, 445 (App. Div. 1990). Once
plaintiff establishes these three factors, the burden then shifts
to defendant to articulate a legitimate, non-retaliatory reason
for the action. The plaintiff must then show that a retaliatory
intent motivated the defendant's actions, either indirectly by
proof that the proffered reason is pretext or directly by
demonstrating that a discriminatory reason is more likely than
not what motivated the defendant's decision. Woods-Pirozzi v.
Nabisco, supra, 290 N.J. Super. at 274; Romano v. Brown &
Williamson, supra, 284 N.J. Super. at 549, 551.
Here, the only question the parties dispute is whether
plaintiffs proved that they were subjected to an adverse
employment decision. Plaintiffs cite two cases as support for
their position that retaliatory harassment, rather than an
adverse employment decision, may form the basis for a retaliation
claim. Hurley v. Atlantic City Police Dep't,
933 F. Supp. 396
(D.N.J. 1996), aff'd,
174 F.3d 95 (3d Cir. 1999), cert. denied,
___ U.S. ___,
120 S. Ct. 786,
145 L. Ed.2d 663 (2000), and
Goldsmith v. E.I. duPont de Nemours & Co.,
571 F. Supp. 235
(D.Del. 1983).
There is no doubt that evidence of pervasive harassment may
make a retaliation claim more credible. Hurley v. Atlantic City,
supra, 174 F.
3d at 111. However, both of the cases cited by
plaintiffs involved employer action that was in addition to, and
different from, the underlying conduct that gave rise to the
hostile work environment. In Hurley, plaintiff alleged that she
was transferred to a different and undesirable assignment and was
denied a thirty-percent pay raise. 933 F. Supp. at 105. In
Goldsmith, besides excessive monitoring and other forms of
harassment, plaintiff alleged an assignment to menial tasks,
hindrance from pursuing promotional opportunities, placement on
probation and discharge. 571 F. Supp. at 239.
In some situations, it is possible for retaliatory
harassment to amount to adverse employment action. In Breaux v.
City of Garland,
205 F.3d 150, 160 (5th Cir.), cert. denied, ___
U.S. ___,
121 S. Ct. 52, ___ L. Ed.2d ___ (2000), for example,
the court found that harassment can rise to such level when the
harassment constitutes a constructive adverse employment action.
Thus, adverse employment action would be proven if defendants
create such an intolerable situation that plaintiff is forced to
transfer to a less desirable position. Ibid. But, generally,
harassment alone is not an adverse employment action. Zamboni v.
Stamler,
847 F.2d 73, 82 (3d Cir. 1988), cert. denied,
488 U.S. 899,
109 S. Ct. 245,
102 L. Ed.2d 233 (1988).
In the instant case, Shepherd must be distinguished from
Saylor. Neither Shepherd nor Saylor alleged that they were
assigned to different or less desirable tasks, or that they were
denied employment benefits or monetary raises. Shepherd did
transfer from Cottage #22; though hardly "voluntary," his
transfer ultimately worked out well for him, and he was happier
in his new assignment. While there was some stress involved in
the transfer, emotional factors alone cannot constitute adverse
employment action. Thus, as to Shepherd, the course of
harassment he alleged was insufficient to establish an adverse
employment decision.
Saylor, however, claimed that the harassment caused him to
take early retirement and constituted a constructive discharge.
An employer will be held liable for constructively discharging an
employee when the employer knowingly permits conditions of
discrimination in employment so intolerable that a reasonable
person subject to them would resign. Woods-Pirozzi v. Nabisco,
290 N.J. Super. at 276; Muench v. Township of Haddon,
255 N.J.
Super. 288, 302 (App. Div. 1992). However, an employee has the
obligation to do what is necessary and reasonable in order to
remain employed rather than simply quit. A trial court should
consider the nature of the harassment, the closeness of the
working relationship between the harasser and the victim, whether
the employee resorted to internal grievance procedures, the
responsiveness of the employer to the employee's complaints, and
all other relevant circumstances. Woods-Pirozzi v. Nabisco,
supra, 290 N.J. Super. at 276; T.L. v. Toys 'R' Us, Inc.,
255 N.J. Super. 616, 663 (App. Div.) (Skillman, J.A.D., concurring in
part and dissenting in part), certif. denied,
130 N.J. 19 (1992),
aff'd as modified on other grounds sub nom. Lehmann v. Toys 'R'
Us,
132 N.J. 587 (1993).
Obviously, an employee who is subjected to discriminatory
treatment that is pervasive and regular, rather than isolated or
occasional, will usually be better able to establish that working
conditions became so intolerable that any reasonable employee
would resign. T.L. v. Toys 'R' Us, supra, 255 N.J. Super. at
663-64 (Skillman, J.A.D., concurring in part and dissenting in
part). Or, if management totally rebuffs an employee's charges of
discriminatory conditions, instead of investigating and
instituting appropriate corrective measures, the employee's claim
of constructive discharge is more likely to be sustained. Id. at
664 (Skillman, J.A.D., concurring in part and dissenting in
part).
Moreover, a constructive discharge claim should not
ordinarily be based solely on an allegation of overzealous
supervision of one's work. Such an allegation must be critically
examined so that an employer is not thwarted from insisting on
high standards through non-discriminatory efforts. Clowes v.
Allegheny Valley Hosp.,
991 F.2d 1159, 1162 (3d Cir.), cert.
denied,
510 U.S. 964,
114 S. Ct. 441,
126 L. Ed.2d 374 (1993).
In addition, whether there has been a constructive discharge is a
"fact-driven determination." Muench v. Township of Haddon,
supra, 255 N.J. Super. at 302.
Here, Saylor's constructive discharge allegation saves his
retaliation claim from dismissal on summary judgment. Plaintiff
must establish unlawful retaliation or some other violation of
the LAD or public policy before he can maintain a claim for
constructive discharge. Gallo v. Princeton Univ.,
281 N.J.
Super. 134, 149-50 (App. Div.), certif. denied,
142 N.J. 453
(1995).
Viewing the evidence from Saylor's perspective, his employer
discriminated against him over a four-month period by making his
working conditions intolerable; there was a close physical
working relationship between Saylor and his alleged harassers;
Saylor pursued internal grievance procedures to complain about
the harassment; and his employer, according to Saylor, half-
heartedly responded to these complaints. Also, Saylor claimed
that he did not want to voluntarily transfer, as Shepherd did,
because he felt there were distinct disadvantages to starting out
all over again in a new cottage. Given the conduct of his
immediate supervisors, we believe that the reasonableness of
Saylor's decision to choose early retirement was a question of
fact to be determined at trial.
Therefore, summary judgment dismissing Saylor's retaliation
claim was inappropriate. However, because Shepherd did not
submit sufficient evidence of an adverse employment decision, the
trial judge properly granted summary judgment dismissing
Shepherd's retaliation claim.
V.
Plaintiffs argue that the court erred in dismissing their
claim against HDC for vicarious liability, and that HDC was
liable because it failed to take effective measures to protect
them from a hostile work environment. In cases of supervisory
harassment, whether the "quid pro quo" or "hostile work
environment" type, the employer is directly and strictly liable
for all equitable damages and relief. Lehmann v. Toys 'R' Us,
supra, 132 N.J. at 617; Heitzman v. Monmouth County, supra, 321
N.J. Super. at 144. With respect to compensatory damages,
including those for emotional distress, principles of agency law
govern whether an employer is liable. An employer, whose
supervisory employee acts within the scope of employment, will be
liable for the supervisor's conduct in creating a hostile
environment. Lehmann v. Toys 'R' Us, supra, 132 N.J. at 619;
Woods-Pirozzi v. Nabisco, supra, 290 N.J. Super. at 267.
Where the supervisor acts outside the scope of employment,
the employer will still be liable "in most cases" under the
exceptions found in Restatment (Second) of Agency § 219(2)
(1958). Moreover, negligence may also create employer liability.
Id. at § 219 (2)(b). Thus, the plaintiff may show the employer
was negligent by its failure to have in place well-publicized and
enforced anti-harassment policies, effective formal and informal
complaint structures, training and/or monitoring mechanisms.
Lehmann v. Toys 'R' Us, supra, 132 N.J. at 621; Woods-Pirozzi v.
Nabisco, supra, 290 N.J. Super. at 268. In addition, under
Restatement (Second) of Agency, supra, § 219 (2)(a), an employer
will also be liable if it had actual knowledge of the harassment
and did not promptly and effectively act to stop it. Lehmann v.
Toys 'R' Us, supra, 132 N.J. at 622; Payton v. New Jersey
Turnpike Auth.,
292 N.J. Super. 36, 45 (App. Div. 1996), aff'd,
148 N.J. 524 (1997); Woods-Pirozzi v. Nabisco, supra, 290 N.J.
Super. at 268.
In this case, both harassing defendants, Sclama and Gal,
were direct supervisors of plaintiffs. As such, HDC could be
found liable either if it acted negligently with respect to the
harassing conduct of defendants, or if the employment
relationship aided those defendants in inflicting injury on
plaintiffs. Thus, it would be for the fact-finder to determine
whether HDC had in place well-publicized anti-harassment
policies, informal or formal complaint structures, mandatory
training requirements, or mechanisms for monitoring the
workplace, and whether the commitment to anti-harassment "came
from the top." Lehmann v. Toys 'R' Us, supra, 132 N.J. at 621.
It would also be for the fact-finder to determine whether HDC
delegated authority to Sclama and Gal to control the situation
about which plaintiffs complained, whether Sclama and Gal
exercised that authority, whether their exercise of that
authority resulted in a LAD violation, and whether the authority
delegated to them aided them in injuring plaintiffs. Id. at 620.
Therefore, all of these factual questions precluded summary
judgment of plaintiffs' claim against HDC alleging vicarious
liability for the conduct of Sclama and Gal.
VI.
The trial court ruled that in order for Sclama and Gal to be
individually liable as aiders and abettors under the LAD,
plaintiffs had to demonstrate that defendants shared a community
of purpose with the HDC. Since the most that plaintiffs showed,
according to the trial court, was that they had an unpleasant
relationship with Sclama, the court found no evidence of
individual liability. We have already explained why we disagree
with the trial court's assessment of plaintiffs' hostile work
environment claim. In our view, considering the evidence from
plaintiffs' perspective also requires a different result
regarding Sclama's and Gal's individual liability.
N.J.S.A. 10:5-12a prohibits unlawful employment practices or
unlawful discrimination only by "an employer." An individual
supervisor is not defined as an "employer" under the LAD.
N.J.S.A. 10:5-5e. However, N.J.S.A. 10:5-12e deems it unlawful
"[f]or any person, whether an employer or an employee or not, to
aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under this act, or to attempt to do so." To "aid"
means "to assist, support or supplement the efforts of another,"
and to "abet" means "to encourage, counsel, incite or instigate."
Baliko v. Stecker,
275 N.J. Super. 182, 191 (App. Div. 1994),
certif. denied,
162 N.J. 199 (1999) (citing State v. Newell,
152 N.J. Super. 460, 469 (App. Div. 1977) and several civil cases).
The federal courts in New Jersey have struggled with the
meaning of "aiding and abetting" within this context, and there
appear to be three tests that have been developed for employee
liability under N.J.S.A. 10:5-12e. In Tyson v. CIGNA Corp.,
918 F. Supp. 836 (D.N.J. 1996), aff'd,
149 F.3d 1165 (3d Cir. 1998),
the court noted that N.J.S.A. 10:5-12e adds accomplice liability
to the statute. When read in conjunction with N.J.S.A. 10:5-12a,
it forbids any person to aid or abet an employer's discriminatory
conduct. Id. at 840. To aid or abet, the individual must
willfully and knowingly associate himself or herself with the
unlawful act, and seek to help make the act succeed. The
defendant must share the same intent as the one who actually
committed the offense. Ibid.
According to Tyson, a supervisor who engages in
discriminatory conduct, while acting within the scope of
employment, shares the intent of his or her employer and may thus
be held individually liable as an accomplice. Ibid. However, this
is not true when the supervisor acts outside the scope of
employment because the employer in that situation is liable for
the conduct only insofar as it fails to adequately respond to it.
Id. at 841, 842 n.10. Moreover, in order to find a supervisor
individually liable, he or she must affirmatively engage in
discriminatory conduct. Mere inaction, passivity or acquiescence
do not suffice. Id. at 841. The same rationale appears in
several other district court cases. E.g., Ferraro v. Bell
Atlantic Co.,
2 F. Supp.2d 577, 584-85 (D.N.J. 1998); Caldwell
v. KFC Corp.,
958 F. Supp. 962, 971 (D.N.J. 1997); Hurley v.
Atlantic City Police Dep't, supra, 933 F. Supp. at 416-17.
The Third Circuit, in reviewing Hurley, followed Failla v.
City of Passaic,
146 F.3d 149 (3d Cir. 1998). In Failla, the
court rejected Tyson's view that individual liability under
N.J.S.A. 10:5-12e was based on the concept of "shared intent" and
found it irrelevant whether a supervisor had acted within the
scope of employment. 146 F.
3d at 156-57. The Third Circuit
concluded that an employee aids or abets a LAD violation when he
or she knowingly gives substantial assistance or encouragement to
the unlawful conduct of the employer. Id. at 157-58 (relying on
Restatement (Second) of Torts § 876(b) (1979) to define aiding
and abetting liability); accord Hurley v. Atlantic City, supra,
174 F.
3d at 126. Under this test, employees are not liable as
aiders or abettors merely if they have some role, knowledge, or
involvement in the illegal conduct. The standard is set above
mere knowledge or implementation "lest a reverse respondeat
superior liability . . . be created under the guise of aiding and
abetting." Failla v. City of Passaic, supra, 146 F.
3d at 159.
In Jones v. Jersey City Medical Center,
20 F. Supp.2d 770,
774 (D.N.J. 1998), the district court established a liability
standard gleaned from both Tyson and Failla. Here, the court
concluded that to be individually liable under the LAD, a person
must intend to facilitate discrimination, must share a community
of discriminatory purpose with the actual perpetrator, must be a
supervisor, and must engage in affirmative acts of discrimination
within the scope of employment. In addition, the individual must
know of the principal's discriminatory conduct, must know that
such conduct involves a breach of duty, and must actually assist
or encourage the unlawful act. Id. at 774-75.
We need not, in this case, decide the appropriate test for
assessing aiding and abetting liability under the LAD because no
matter which test is applied, we conclude that summary judgment
was improvidently granted. Under Tyson and Jones, plaintiffs had
to show that defendants were acting within the scope of their
employment when they created a hostile work environment. Because
Sclama and Gal were promoting the interests of HDC when they
chastised plaintiffs for supporting Sampson and Greenfield, at
the very least, plaintiffs established a question for the
factfinder at trial.
Under Failla/Hurley, plaintiffs had to show that Sclama and
Gal were giving substantial encouragement to the unlawful conduct
of their employer. Because the employer's unlawful conduct was
racial discrimination against Sampson and Greenfield, and Sclama
and Gal retaliated against plaintiffs for helping Sampson and
Greenfield prevail against their employer on this claim, a
reasonable factfinder could conclude that plaintiffs made this
showing. Unlawful discrimination in the workplace is fostered
when employees such as these two plaintiffs are deterred from
speaking out for fear that they too will be discriminated
against. Without the encouragement and assistance of harassers
such as Sclama and Gal, employers would be unsuccessful in
carrying out their unlawful policies. Therefore, summary
judgment should not have been granted in favor of Sclama and Gal.
Their liability must be resolved by trial, and we leave to the
trial judge to decide initially which test to apply in assessing
aiding and abetting liability under the LAD.
We also note that in our opinion, Newsome v. Administrative
Office of The Courts,
103 F. Supp.2d 807 (D. N.J. 2000), cited
by Judge Wefing in her dissent, is inapplicable to this case. In
Newsome, there was no suggestion that the defendant sexually
harassed plaintiff to further the interests of defendant
employer. Id. at 818. Thus, the District Court, in dismissing
the individual liability claim against the harassing defendant,
observed that it would be illogical to contend that a principal
wrongdoer can aid or abet his or her own wrongful conduct. We
acknowledge that when the challenged conduct is failing to stop
the supervisor's own harassment, the theory of liability becomes
"somewhat awkward." Hurley v. Atlantic City, supra, 174 F.
3d at
126.
In this case, however, there is at least a factual dispute
as to whether Sclama and Gal were promoting the interests of HDC
when they harassed plaintiffs for supporting Sampson and
Greenfield. Therefore, the aiding and abetting analysis is
apropos to their actions, at least at the summary judgment phase
of this case. In Hurley, Judge Cowen, dissenting in part, would
have ruled that supervisors are liable for their own
discriminatory behavior under N.J.S.A. 10:5-12a because the
Legislature intended to include individuals acting on behalf of
their employer within the coverage of the statute. Id. at 139-40
(Cowen, J., concurring in part and dissenting in part).
VII.
Concerning the individual liability plaintiffs asserted
against William Wall, HDC's Superintendent; Leon Cronce,
Assistant Superintendent; and Arthur Searfass, Assistant
Supervisor of Professional Residential Services, we conclude that
plaintiffs raised insufficient evidence in opposition to
defendants' motion to withstand summary judgment. These
defendants' alleged negligent or passive response to plaintiffs'
complaints of harassment and retaliation is relevant in
plaintiffs' hostile work environment claim and Saylor's
retaliation claim. However, plaintiffs' complaint against them
individually was properly dismissed. Moreover, plaintiffs did
not indicate in their brief why they believed Wall, Cronce and
Searfass were individually liable. This failure, results in
abandonment of the issue. Muto v. Kemper Reinsurance Co.,
189 N.J. Super. 417, 420-21 (App Div. 1983). We note that plaintiffs
have also voluntarily dismissed their complaint against Vincent
Murante and Donald Stambaugh, two other cottage training
supervisors.
Finally, plaintiffs argue that the trial court erred by
dismissing as a matter of law their claim against Sclama and Gal
for negligent supervision and conspiracy liability under the LAD.
Plaintiffs are not asserting a common law conspiracy claim, but
instead appear to be relying on N.J.S.A. 10:5-12e. Evidence of
any conspiracy would, therefore, not establish a separate claim
under the LAD, but would be part of plaintiffs' proofs that
Sclama and Gal should be individually responsible. In addition,
there appears to be no evidence supporting a separate so called
negligent supervision claim against Sclama and Gal. Again, to the
extent management responded ineffectively to plaintiffs' work
place complaints, this evidence would be relevant in plaintiffs'
hostile work environment claim and Saylor's retaliation claim.
However, the separate claims against Sclama and Gal for
negligence and conspiracy under the LAD were properly dismissed.
Consequently, it is not necessary for us to consider defendants'
alternative arguments for affirming the trial judge's dismissal
of these claims, such as the workers' compensation law or the
Tort Claims Act immunity.
To recap, we conclude, for the reasons explained above, that
Shepherd's retaliation claim and both plaintiffs' claims for
conspiracy and negligent supervision under the LAD were properly
dismissed. Plaintiffs claims against defendants Wall, Cronce and
Searfass, individually, were also properly dismissed. The
dismissal of plaintiffs' hostile work environment claim and
Saylor's retaliation claim against HDC and Sclama and Gal
individually is reversed and remanded for trial. Summary
judgment on these claims was inappropriately granted.
Affirmed in part, reversed in part and remanded in part.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5504-98T2
WILLIAM SHEPHERD and RICHARD
SAYLOR,
Plaintiffs-Appellants,
v.
HUNTERDON DEVELOPMENTAL CENTER,
WILLIAM WALL, Superintendent,
LEON CRONCE, Assistant
Superintendent, ARTHUR SEARFASS,
Assistant Supervisor of
Professional Residential Services,
MARIO SCLAMA, Cottage Training
Supervisor, and IDA GAL, Cottage
Training Supervisor,
Defendants-Respondents,
and
VINCENT MURANTE, Cottage Training
Supervisor, and DONALD STAMBAUGH,
Cottage Training Supervisor,
Defendants.
WEFING, J.A.D., dissenting.
My colleagues have concluded that the trial court erred when
it granted summary judgment to Hunterdon Developmental Center
(HDC), a State-operated facility that provides long-term care for
physically and mentally handicapped clients, and two of its
employees, Mario Sclama and Ida Gal, who were sued by plaintiffs,
William Shepherd and Richard Saylor under New Jersey's Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 through -49. The
trial court concluded that plaintiffs' claims were barred by the
statute of limitations. My colleagues, relying on Wilson v. Wal-
Mart,
158 N.J. 263 (1999), have determined that under the
continuing violation theory the plaintiffs' claims are not
barred. They have also concluded that plaintiffs have set forth
a sufficient prima facie showing that these defendants were
responsible for a hostile work environment. I am unable to agree
with either proposition and therefore dissent.
Before turning to the substantive merits of the questions
presented, I am compelled to note one aspect of the factual
background of this matter set forth by the parties and my
colleagues. All refer to a prior lawsuit commenced by Annie
Sampson and Donald Greenfield, who had, some years earlier, been
plaintiffs' co-workers in Cottage 22 at HDC. Although Sampson
and Greenfield prevailed in that lawsuit in which they alleged
various incidents of racial discrimination and harassment, no
judgment was entered against defendant Ida Gal in that earlier
litigation, according to the copy of the judgment supplied to us
in connection with our review of this matter.
I
I turn first to the question whether plaintiffs are entitled
to invoke the continuing violation theory to save their cause of
action. There are two reported New Jersey Supreme Court cases
which have utilized the continuing violation theory in the
context of an employment-related claim asserted under LAD, Wilson
v. Wal-Mart, supra, and Ali v. Rutgers, ___ N.J. ___ (2000).
Both indicate to me that the continuing violation theory is
inapplicable to this case. The plaintiff in Wilson alleged
claims of sexual harassment and age and sex discrimination. She
commenced work for K-Mart in August 1990, and during the course
of her employment was supervised by Rocco Gallo who continuously
made crude and indecent remarks to her. Id. at 267. In January
1994, K-Mart sold to Wal-Mart the store in which she and Gallo
worked. Gallo remained her supervisor and continued his
offensive conduct. On March 4, 1994, she was terminated by Wal-
Mart and on March 6, 1996, she filed a complaint under LAD
against Gallo, K-Mart and Wal-Mart. Id. at 267-268. In that
context, this court determined that K-Mart was entitled to
summary judgment because plaintiff had not presented her claim
within two years of her employment by K-Mart. In reversing that
determination and remanding the matter for trial, the Supreme
Court noted the very limited context of the question before it
and the answer it provided.
The secondary question is whether the claim
against K-Mart is barred by the statute of
limitations because it was not brought within
two years of the last date of plaintiff's
employment with K-Mart. That question
requires consideration of the problem of
successor liability when both predecessor and
successor employers are alleged to have
contributed to the creation of a hostile work
environment.
[Wilson, supra, 158 N.J. at 266.]
Those factors are entirely absent from the present matter,
however. Plaintiffs worked continuously at HDC, Shepherd from
1983, Saylor from 1984. They never experienced a change in the
identity of their employer that might put into question which of
several entities should bear responsibility for a course of
conduct in which all might have engaged over a course of time.
There is no question here of successor liability.
In addition, in both Wilson and Ali, plaintiffs alleged a
course of conduct that continued over a span of years. Wilson
was subjected to Gallo's offensive conduct for approximately four
years. Wilson, supra, 158 N.J. at 267. Ali was employed by
Rutgers approximately fifteen years. Ali, supra, ___ N.J. at
___.
Here, under the most generous reading of plaintiffs'
allegations, we are concerned with conduct of no more than
several months' duration. They both date the alleged wrongful
actions as starting in November 1994, and in March 1995, Shepherd
transferred from Cottage 22 and Saylor put in for retirement. In
my view, the wholesale application of the theory of continuous
violation is unwarranted to this factual complex, particularly in
the context of continuous employment by a State-operated
facility.
I must stress that my disagreement wit