PAIGE v. ATRION COMMUNICATION RESOURCES INC. et al
Filing
31
MEMORANDUM AND ORDER denying 20 Motion for Summary Judgment. Signed by Judge Peter G. Sheridan on 11/05/2019. (jdb)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
VERONICA PAIGE,
Civil Action No.:
3: 17-cv-00472-PGS-TJB
Plaintiff,
v.
MEMORANDUM AND ORDER
ATRION COMMUNICATION
RESOURCES, INC., et al.
Defendants.
SHERIDAN, U.S.D.J.
This matter comes before the Court on Defendants’ Motion for Summary Judgment (ECF
No. 20) based on this Court’s diversity jurisdiction. This case arises from workplace sexual
harassment claims that a woman has alleged against her former employer. Because there are
genuine disputes of material fact regarding the severity and pervasiveness of her employer’s
conduct, as well as whether the plaintiff, herself, engaged in sexually inappropriate conduct,
Defendants’ summary judgment motion is denied.
I
Defendant Atrion Communication Resources, Inc. (“Atrion”) is an IT consulting company.
(Am. Compi. ¶ 1, ECF No. 11). Plaintiff, Veronica Paige (“Paige”), began working for Atrion in
February 2007 and resigned from her position in December 2016. (Id. at ¶4; Defs.’ Statement of
Material Facts (“SOMF”) ¶ 33, ECF No. 20-1). Paige primarily worked as a receptionist, but also
performed marketing and various administrative tasks at Atrion.
While Paige was employed with Atrion, Defendant Pasquale “Pat” Grub (“Grub”) was
the CEO, President, and Founder of Atrion, and served as Paige’s general supervisor. (Am. Compi.
1
¶ 5; Defs.’ SOMF ¶ 2). Throughout her employment at Atrion, Paige alleges that Grillo subjected
her to “explicit and overwhelming” sexual harassment. (Am. Compi. ¶ 5).
Below is a list of the specific incidents of sexual harassment Paige alleges that Grub
engaged in during her employment, which were addressed directly at Paige or in her presence.
•
In 2007, a few months after Paige began employment, Paige was called into Grub’s office
because he wanted to show her something on his computer. (Am. Compl. ¶ 6). When
Paige looked at the computer screen, she saw a pornographic video of a woman performing
oral sex on a man. (Id. at ¶ 7). Paige expressed that she did not want to see the video and
walked out of Grillo’s office. (Id. at ¶ 8).
•
When Paige began working at Atrion, she drove a Hummer SUV. (Id. at ¶ 8). Grillo made
daily sexual remarks about Paige’s vehicle, such as, “I could go for a Hummer, do you
want to give me one?” (Id. at ¶ 10). A “hummer” is a colloquial term for fellatio. (Id. at
¶ 11).
•
During the summer months, when Paige wore skirts to work, Grub would make
unwelcome sexually suggestive comments to her, such as that he wished he was sitting
under Paige’s desk. (Id. at ¶ 12).
•
While Paige and Grillo were at lunch one day, Grillo informed Paige that the only reason
he hired her was because she had large breasts and that other women applicants who had
applied for Paige’s position did not. (Id. at ¶ 13).
•
In or about September 2014, while Grilbo’s wife was out of town, Paige was talking with
Jennifer Farlow (“Ms. Farlow”), Atrion’s Human Resources Manager, when Grillo
approached them and said, “Well, since Roz [Grillo’s wife] is away, I think we should have
a threesome. Let’s close the door; I would love to see you two go at it.” (Id. at ¶ 14).
•
In or about March 2015, Grillo’s accountant’s wife came in the office and commented on
Grillo’s weight, to which he replied, “I lost some [weight] but I’m trying to get [Plaintiff]
to have sex with me for more exercise.” (Id. at ¶ 17).
•
In or about February 2015, Grillo’s granddaughters visited Atrion’s office, and after he
asked his granddaughters for a kiss and hug, he turned to Plaintiff and said, “Oh, is that ok
or will I get sued for that?” (Id. at ¶ 19).
•
In or about June 2015, on Plaintiff’s birthday, Grilbo stated, “Oh, happy birthday. I’ll take
one for the team and have birthday sex with you.” (Id. at ¶ 20).
•
In or about July 2015, Plaintiff had bananas sitting on her desk and offered one to Grub;
Grub responded, “No, but I have a banana for you and it’s cream filled,” suggesting a
sexual innuendo regarding ejaculation. (Id. at ¶ 21).
•
On or about November 23, 2015, Grub walked through one of the office doors, held a
banana up, and said, “Ohh, I want to shoot you with my banana,” which Plaintiff claims
also suggested a sexual innuendo regarding ejaculation. (Id. at ¶ 24).
•
On or about December 14, 2015, there was a company manager’s meeting. (Id. at ¶ 25).
Grub and an Atrion co-worker were standing at Paige’s desk when Grillo stated, “I don’t
enjoy coming to work anymore. You can’t even joke around without getting sued. It’s not
fun coming here anymore.” (Id. at ¶ 26). Plaintiff responded and said, “Join the crowd.
I’m always cranky.” (Id. at ¶ 27). Grub then responded, “Well, I can uncrank you!” which
was an innuendo suggesting that he would have sex with her. (Id. at ¶ 28).
•
On or about December 17, 2015, Paige was speaking with a co-worker when Griblo stated,
“Well, I think we should go have some drinks and then have some sex, what do you think?”
(Id. at ¶ 29).
•
On or about March 20, 2016, Paige went into Grilbo’s office to use his computer and while
Paige was typing, Grub expressed that he was tired. (Id. at ¶ 30). Paige replied that she
read about companies that put cots under employees’ desks for employees to take naps.
(Id.). Grub stated, in response, “I wish there was a girl under my desk right now, and I
don’t even care if she spits. I’ll just have the carpets cleaned.” (Id.). Grillo was allegedly
referring to a woman spitting out semen while performing fellatio. (Id.).
•
On one occasion (it is unclear precisely when), Grub rubbed Paige’s shoulders in an
inappropriate fashion. (Pl.’s Statement of Material Facts (“SOMF”) ¶ 23, ECF No. 11).
Grub’s wife, Rosalind Grilbo (“Roz Grub”), apparently saw this and hit Grub in the head
in a non-violent, playful manner to reprimand him. (Id.).
In sum, Paige claims that Pat Grillo’s frequent sexual harassment created an intimidating,
hostile, and offensive work environment. (Am. Compb. ¶ 32).
Paige alleges that on one occasion, she reported to her direct supervisor Gribbo’s sexually
inappropriate remarks and conduct, but that her supervisor took no action and instead proceeded
to tell her about Grillo’s alleged history of sexually harassing women in the workplace. (Pb.’s
SOMF ¶ 19). On another occasion, Paige claims that she reported the “cream-filled banana”
comment to another supervisor, but her supervisor informed her that there was nothing that could
3
be done because Grub was the owner of the company, but that if it were the supervisor’s decision,
he would have fired Grub by now. (Id. at ¶ 34). Therefore, based on her supervisors’ comments,
Paige claims that she had no reasonable expectation that a complaint to Human Resources would
result in any action to stop Grub’s sexual harassment. (Am. Compl. ¶ 6).
Grub has denied that he made the vast majority of the sexually-laced comments Paige has
alleged and that engaged in such conduct, and explains that in the few instances in which he did
make such comments, they were made in jest and were not intended to denote anything sexual.
(See generally Certification of Sebastian Jonno (“lonno Cert.”), Pl.’s Ex. 6, Deposition of Pat
Grub (“Pat Grub Dep.”), November 16, 2017, ECF No. 24-9).
In turn, Grub contends that that Paige, herself, has uttered sexually explicit comments in
the workplace. (Defs.’ Br. in Support of Mot. for Summary Judgment, 4-6, ECF No. 20-2). For
example, Grub asserts that Paige would occasionally talk to Grilbo about the size of one of her ex
husband’s penises, and that she preferred men with large penises. (Id. at 5). Grub also states that
Paige wore revealing clothing to work. (Id.). Furthermore, Grub
notes that Paige published
profanity on a Facebook post concerning a matter in Paige’s personal life. (Id. at 4-5). Grilbo
further states that Paige engaged in racist conduct because she once circulated to a few Atrion
employees a picture of monkeys gathered on top of vehicles in an urban city, which, Grilbo argues,
was racially offensive because it depicted African American individuals protesting during the 2015
Baltimore protests.
At all relevant times, Atrion had a sexual harassment policy in place. (Certification of
Charles Schalk, Atrion Employee Handbook, § 9 Harassment, ECF No. 20-3).
The relevant
portions of the sexual harassment policy state the following:
Atrion Communications has a strict policy against sexual harassment of any kind.
Sexual harassment interferes with work performance; [and] creates an intimidating,
4
hostile or offensive work environment
Sexual harassment, as defined in this
policy, includes, but is not limited to, unwanted sexual advances, requests for
sexual favors, verbal or physical conduct of a sexual nature, visual forms of a sexual
or offensive nature
or any other sexually oriented conduct that may be
intimidating or unwelcome by the recipient.
.
.
.
.
.
.
(Id.).
Paige eventually resigned from her position at Atrion in December 2016, but alleges that
because of Grub’s sexual harassment, and the knowledge that Atrion would not take any action
to address Grub’s behavior, she was constructively discharged from Atrion. (Am. Compl. ¶91 39,
40). Grub, on other hand, argues that Plaintiff quit her job to attend school. (Defs.’ Br. 16-17).
Overall, Paige alleges that Grub’s sexual harassment has negatively affected her emotionally, has
demeaned and humiliated her, and has caused her stress. (Pl.’s SOMF ¶ 38).
II
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non
movant, and it is material if, under the substantive law, it would affect the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); U/inch v. United States Secy. of
Veterans Affairs, 457 F. App’x 132, 136 (3d Cir. 2012). In considering a motion for summary
judgment, a district court may not make credibility determinations or engage in any weighing of
the evidence; instead, the nonmoving party’s evidence “is to be believed and all justifiable
inferences are to be drawn in his favor.” Manino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004) (quoting Anderson, 477 U.S. at 255).
5
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995); see also Ulirich, 457 F. App’x. at 136 (“[T]he
party opposing summary judgment must support each essential element of the opposition with
concrete evidence in the record.”). “[U]nsupported allegations
.
.
.
and pleadings are insufficient
to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990);
see also Fed. R. Civ. p. 56(e) (requiring the nonmoving party to set forth specific facts showing
that there is a genuine issue for trial).
Moreover, only disputes over facts that might affect the outcome of the lawsuit under
governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a
court determines, “after drawing all inferences in favor of [the non-moving party], and making all
credibility determinations in his favor
-
that no reasonable jury could find for him, summary
judgment is appropriate.” Alevras v. Tacopina, 226 F. App’x 222, 227 (3d Cir. 2007).
III
Plaintiff’s sexual harassment claims are state law claims, and therefore the New Jersey Law
Against Discrimination (LAD) governs their adjudication. See N.J. Stat. Ann.
§ 10:5-12.
The purpose of the LAD is “nothing less than the eradication ‘of the cancer of
discrimination.” Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 600 (1993) (internal citations omitted);
see also McKenna v. Pacific Rail Serv., 32 F.3d 820, 827 (3d Cir. 1994) (noting that the “LAD
was intended by the New Jersey legislature to eradicate “the cancer of discrimination.”). The
6
LAD prohibits unlawful discrimination in employment and specifically prohibits discrimination
based on sex. See N.J. Stat. Ann.
§ 10:5-4; § 10:5-12(a); Lehmann, 132 N.J. at 600. Although the
LAD is silent on the subject of sexual harassment, the New Jersey Supreme Court has held that
sexual harassment is a form of sex discrimination that violates the LAD. See Aguas v. State, 220
N.J. 494, 509 (2015); Lehmann, 132 N.J. at 601.
Generally, sexual harassment consists of unwelcomed sexual advances, requests for sexual
favors, and/or verbal or physical conduct of a sexual nature that results in the alteration of the
terms and conditions of one’s employment. See Faragher v. City of Boca Raton, 524 U.S. 775
(1998); Lehmann, 132 N.J. at 600-604; Erickson v. Marsh & McLennan Co., 117 N.J. 539, 55556 (1990).
New Jersey courts recognize two types of sexual harassment: (1) “hostile work
environment” sexual harassment and (2) “quid pro quo” sexual harassment. Lehmann, 132 N.J. at
60 1-602.
In this case, Plaintiff alleges that Pat Grillo’ s sexual harassment created a “hostile work
environment” at Atrion, and therefore this Court will only analyze this claim.
Iv
“Hostile work environment” sexual harassment involves harassing conduct that has the
purpose or effect of unreasonably interfering with an individual’s work performance or creating
an intimidating, hostile, or offensive working environment. See Clayton v. City of Atl. City, 538
F. App’x 124, 128 (3d Cir. 2013); Ivan v. County of Middlesex, 595 F. Supp. 2d 425, 450 (D.N.J.
2009); Lehman, 132 N.J. at 603. In Lehmann, the leading New Jersey sexual harassment case, the
New Jersey Supreme Court noted that in hostile work environment cases, the harassing conduct
typically takes the form of unwelcome touching and comments; “[h]owever, the harassing conduct
7
need not be sexual in nature.
.
.
its defining characteristic is that the harassment occurs because of
the victim’s sex.” Lehmann, 132 N.J. at 602.
To state a claim for hostile work environment sexual harassment, a female plaintiff must
prove four elements: that the complained-of conduct (1) would not have occurred but for her
gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that
(4) the conditions of employment were altered and that the working environment is hostile or
abusive. Lehmann, 132 N.J. at 603-04; see Clayton, 538 F. App’x at 128; Ivan, 595 F. Supp. 2d
at 450.
“[W]hile separable to some extent,” the second, third, and fourth prongs of the analysis
“are interdependent,” because the severe or pervasive prong is determined by whether a reasonable
person in the protected class, in this case a reasonable woman, would believe that “the conditions
of employment are altered and [the] working environment is hostile” or abusive. Clayton, 538 F.
App’x at 128 (quoting Lehmann, 132 N.J. at 604).
Importantly, a plaintiff is not required to prove that her employer intentionally
discriminated or harassed her, or intended to create a hostile work environment. Lehmann, N.J. at
604. Rather, the LAD focuses squarely on the effect of discrimination, whether intentional or
unintentional. Id. at 605.
V
In this case, Paige has demonstrated that Pat Grub’s allegedly sexually harassing
conducted occurred because she was a woman.
When the harassing conduct is sexual or sexist in nature, and is based on the plaintiff’s sex,
the “but-for” element will automatically be satisfied. Lehmann, 132 N.J. at 605. The first element
of a hostile work environment sexual harassment claims is the “but-for” element and “simply
8
requires that in order to state a claim under the LAD, a plaintiff show by a preponderance of the
evidence that she suffered discrimination because of her sex.” Id. at 604. The Lehmann Court
explained that sexual harassment does not violate the LAD if it was conducted in a gender-neutral
fashion toward all employees. Id. “For example, if a supervisor is equally crude and vulgar to all
employees, regardless of their sex, no basis exists for a sex harassment claim. Although the
supervisor may not be a nice person, he is not abusing a plaintiff because of her sex.” Id.
Here, Defendants do not allege, and thus Plaintiff does not refute, that Grillo made sexually
explicit comments or behaved in a sexually explicit manner toward all Atrion employees.
Therefore, Plaintiff has satisfied the first element of the analysis and has thus demonstrated that
Grub’s alleged sexually harassing comments and conduct were directed at her and thus occurred
because of her sex.
VI
Summary judgment must be denied in this case because there are genuine disputes of fact
regarding whether Grub made sexually suggestive comments or engaged in such conduct at and
toward Paige, which hinges directly on the question of whether Grillo’s alleged words and actions
were “severe or pervasive” enough to constitute sexual harassment. Grillo has also alleged that
Paige engaged in sexually inappropriate conduct, which further warrants denial of summary
judgment.
The second element of a hostile work environment sexual harassment claim is that the
sexually harassing conduct be “severe or pervasive.” See Lehmann, 132 N.J. at 603. The Lehmann
Court emphasized that the harassing conduct must be severe or pervasive, not its effect on the
plaintiff or on the work environment. Id. at 606.
Whether harassing conduct is “severe or
pervasive” requires an assessment of the totality of the relevant circumstances, which involves an
9
examination of (1) “the frequency of all the discriminatory conduct”; (2) “its severity”; (3)
“whether it is physically threatening or humiliating, or a mere offensive utterance”; and (4)
“whether it unreasonably interferes with an employee’s work performance.” Clayton, 538 F.
App’x at 128; Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 (2008) (internal
citations and quotation marks omitted).
The Lehinann Court also emphasized that the “severe or pervasive” requirement is
disjunctive and conforms with federal law. Lehmann, 132 N.J. at 606; see Mentor Say. Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986) (“For sexual harassment to be actionable, it must be sufficiently
severe or pervasive
. . .“)
(emphasis added). In other words, “[a]lthough it will be a rare and
extreme case in which a single incident will be so severe that it would, from the perspective of a
reasonable woman, make the working environment hostile, such a case is certainly possible.”
Lehmann, 132 N.J. at 606-07. Thus, a dual severe and pervasive requirement would effectively
“bar actions based on a single, extremely severe incident or, perhaps, even those based on multiple
but randomly-occurring incidents of harassment.” Id. at 606.
Still, the New Jersey Model Jury Charge regarding hostile work environment sexual
harassment claims states that “the law does not require that the workplace be free of all vulgarity
or sexually-laced speech or conduct. Occasional, isolated and/or trivial remarks or conduct are
generally insufficient to constitute unlawful harassment.” New Jersey Model Civil Jury Charge
2.25 (revised Mar. 2016). Rather, only speech or conduct that is sufficiently severe or pervasive
to create a hostile or intimidating working environment constitutes unlawful sexual harassment.
Id.; see also Herman v. Coastal Corp., 348 N.J. Super. 1, 23 (N.J. Super. Ct. App. Div. 2002)
(“Although a person is legally entitled to a work environment free of hostility, she is not entitled
to a perfect workplace, free of annoyances and colleagues she finds disagreeable. In short, what is
10
illegal is a ‘hostile work environment,’ not an ‘annoying work environment.”) (internal citation
omitted).
Trial courts are also advised to “filter out complaints attacking the ordinary tribulations of
the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional
teasing.” Clayton, 538 F. App’x at 124 (quoting Faragher, 524 U.S. at 788).
Nevertheless, as stated, courts must not consider each incident in isolation, but rather the
“cumulative effect” of the alleged sexually harassing incidents.
Lehmann, 132 N.J. at 607
(emphasis added). “In most cases, it is the cumulative impact of successive incidents from which
springs a fully formed hostile work environment.” Godfrey, 196 N.J. at 197; see Lehmann, 132
N.J. at 607.
Here, at this stage of the case, whether this Court should grant or deny summary judgment
turns on whether Grillo’s alleged conduct was severe or pervasive (or both). Accordingly, because
there are genuine disputes of fact about whether Grillo made sexually inappropriate comments and
engaged in such conduct toward Paige, as well as whether Paige, herself, made sexually
inappropriate comments, summary judgment must be denied.
Defendants argue that even if Paige’s allegations are true concerning Grillo’s comments
and conduct, his comments and conduct constitute only “a few sporadic incidents over the course
of several years,” and therefore no reasonable jury could conclude that his behavior was severe or
pervasive. (Defs.’ Br. 13). “At best,” Defendants assert, “the plaintiff can point to a stray comment
or joke made on the frequency of once a year or once every two years, a mere handful over the
course of ten years [the approximate duration of Plaintiff’s employment at Atrion].” (Id. at 14).
Defendants further assert that Grub’s “isolated” behavior was merely “jovial.”
(Id. at 13).
Defendants thus maintain that Paige is not entitled to a workplace free of all vulgarity or sexually
11
laced speech or conduct, and, consequently, Grub’s words and actions do not rise to the level of
“severe or pervasive” under the LAD.
Paige, on the other hand, avers that Grub’s conduct and comments were, in fact, “severe
or pervasive,” if not both, because she testified in detail to “numerous acts of absolutely flagrant
and grotesque sexual harassment over the course of her employment.” (Pl.’s Br. in Opp’n to Defs.’
Mot. for Summary Judgment, 9, ECF No. 24).
In addition, Paige asserts that a few Atrion
employees testified to Grub’s sexually harassing behavior and have thus corroborated, at least in
part, her sexual harassment claims. (Id. at 12).
For instance, Paige points to the fact that Ms. Farbow, the Human Resources Manager,
testified that she has heard Grub make sexual jokes “on and off’ throughout the years, and that it
was a running joke among some Atrion employees that Grillo was a “walking HR violation.”
(lonno Cert., Pl.’s Ex. 3, Deposition of Jennifer Farlow, Nov. 14, 2017, at 60:9
—
61:14, ECF No.
24-6). Similarly, Paige points to the testimony of Roz Grub, Grub’s wife, in which Roz suggested
that she (Roz) has heard Grub
make sexual jokes in the workplace. (lonno Cert., Pl.’s Ex. 4,
Deposition of Rosalind Grub, Oct. 24, 2018, at 26:6-9, ECF No. 24-7).
Grillo, meanwhile, denies that he made most of the sexually explicit comments or refutes
the substance and intentions of his comments. (See generally Pat Grub Dep.). For instance, he
has denied that he showed Paige on his computer a woman performing oral sex on a man; that he
had a “cream-filled banana” for Paige; that he told her he could “go for a Hummer”; that he wished
he could sit under her desk while she wore a skirt; that he hired her because of her “large breasts”;
and that he, Paige, and Ms. Farlow should have a threesome. (See Pat Grub Dep. 79:24
—
86:2).
Grub also testified, however, that the comments which he admits he uttered were either
made in jest or were not intended to be sexual in nature. For example, he stated that he “possibly”
12
referred to Paige as “the Hummer girl” because she drove a Hummer, but never said in a sexual
manner that he could “go for a Hummer.” (Pat Grub
comment generally, Grub
Dep. 80:19-22). Regarding the banana
indicated that most of the Atrion employees (presumably including
Grub and Paige) commonly made the following joke: “Is that a banana in your pocket or are you
glad to see me?” (Pat Grillo Dep. 21:17—22: 13). Grilbo also stated that he was only joking when
he made the “threesome” comment. (Pat Grillo Dep. 82:9-17 (“You know, we kidded around a
lot. And I may have said something along the lines, hey, Ros [Grillo’s wife] is away, let’s go out,
something like that. Again, they both laughed.
.
.
I never made a sexual advancement at Ronnie
[Plaintiff], and I had no intention to.”)).
In sum, the deposition testimonies thus demonstrate that genuine factual issues exist as to
whether, in the first place, Grub uttered the alleged sexually inappropriate comments or engaged
in inappropriate conduct, as well as what he meant by some of the comments that he admits he
made; and second, whether his behavior is “severe or pervasive” enough to satisfy the second
element of Plaintiff’s hostile work environment sexual harassment claim. Here, Paige is alleging
that Grub made comments on numerous occasions throughout her employment at Atrion. The
alleged frequency of these comments is coupled with the fact that a reasonably jury could view
some of these alleged comments as lewd and inappropriate for the workplace.
Moreover, at oral argument, Defendants’ counsel relied heavily on Clayton v. City of Ati.
City, a 2013 Third Circuit opinion in which the court affirmed summary judgment in favor of the
defendants after finding that no reasonable jury could have concluded that the alleged sexually
harassing conduct in that case was severe or pervasive.
538 F. App’x at 128-29.
Counsel
emphasized that the sexually harassing behavior in Clayton was more egregious than the alleged
behavior of which Grillo has been accused, but the court in that case nonetheless granted summary
13
judgment in favor of the defendants. The facts of Clayton, however, are clearly distinguishable
from the case at bar.
In Clayton, the plaintiff, a female police officer who worked for the Atlantic City Police
Department, claimed that she was subjected to a hostile work environment because of sexually
harassing behavior by her superior officers. Id. at 125. For instance, the plaintiff claimed that one
of her superior officers asked her out on dates, commented on her physical features, and read her
a love poem over the phone. Id. at 126. In addition, while the plaintiff and the same superior
officer were on vacation, the officer massaged her foot on his leg near his genitals in a Jacuzzi. Id.
Interestingly, though, the court noted that the plaintiff had testified that she and this particular
superior officer “were friends” and would often dine and vacation together with each other’s
respective families. Id. at 126 n.2.
On another occasion, a different superior officer grabbed the plaintiff’s buttocks and made
a lewd comment to her. Id. at 126. A third officer made inappropriate comments over the police
radio to other police officers, such as “which one of those guys is hitting her [the plaintiff] in the
ass tonight?” Id. at 127. Years later, the plaintiff called into a radio show and denied that she had
problems with the Police Department and, at the time the case was decided, remained an employee
with the Department. Id. at 125, 127.
In its holding, the Third Circuit stated that even if the plaintiff’s allegations were true,
“there were only a few sporadic incidents over the course of several years” such that no reasonable
jury could find that she was sexually harassed. Id. at 129. The court explained that “although rude
and distasteful, the alleged lewd remarks on the radio and the incident where [one of the officers]
grabbed [the plaintiff’s] buttocks in public” and made a lewd comment “fell short” of being
14
deemed “severe or pervasive” to constitute hostile work environment sexual harassment. Id. at
129.
As stated, the facts of the case before this Court are far different from those in Clayton. To
start, unlike the plaintiff in Clayton, who was “friends” with one of the superior officers she
claimed sexually harassed her, Paige has not claimed that she and Grub were ever friends, let
alone close friends that regularly dined and vacationed together. (See generally Paige Dep.). In
fact, Paige rejected an offer from Atrion to attend a four-day employee retreat in which Grillo was
present. (Id. at 165:16-19). In addition, Paige resigned from herjob at Atrion, whereas the Clayton
plaintiff remained employed with the Police Department.
Regarding the frequency and gravity of the alleged sexually harassing conduct, in Clayton,
there appeared to have been approximately six instances in which the plaintiff was harassed. Yet,
in its holding, the Third Circuit only mentioned two incidents—the lewd remarks on the radio and
the grabbing of the plaintiff’s buttocks accompanied by a lewd remark—that seemed relevant to
the court’s finding that the harassing conduct was neither severe nor pervasive. Clayton, 538 F.
App’x at 129. Yet, here, to the best of this Court’s knowledge, Paige has alleged at least fourteen
separate incidents in which Grub
sexually harassed her, which is far more than the sexual
harassment to which the Clayton plaintiff was subjected. (See generally Compl.; P1.’s SOMF).
Most importantly, though, is that whether Grilbo engaged in sexually harassing behavior
toward Paige, along with the relative degree of severity of his behavior, remains, at the summary
judgment stage, a genuine factual dispute. This Court is therefore precluded from weighing the
evidence to try to discern how severe or pervasive Grub’s behavior was, if true. See Marino, 358
F.3d at 247. Thus, at this stage of the case, a reasonable jury could find that Grub’s behavior was
severe or pervasive, if not both.
15
Defendants further argue that Grub’s alleged behavior is not severe or pervasive because
Paige is guilty of the same conduct of which she complains. (Defs.’ Br. 13). Defendants assert
that Paige, herself, uttered sexually inappropriate comments in the workplace.
(Id. at 13).
Specifically, Defendants refer to Grub’s deposition testimony indicating that Paige would
occasionally talk to Grub about the size of one of her ex-husband’s penises, and that she preferred
men with large penises. (See Pat Grub
Dep. 16:9
—
17:9). Defendants also note that Paige
published profanity on a Facebook post concerning a matter in Paige’s personal life, thus implying
that Paige is as foul-mouthed as Grub. (Defs.’ Br. 14). Further, Defendants maintain that Paige
engaged in inappropriate conduct because she once circulated to a few Atrion employees a picture
of monkeys gathered on top of vehicles in an urban city, which Defendants suggest was racially
offensive because it depicted African Americans protesting during the 2015 Baltimore protests.
(Id.).
Plaintiff, in response, denies that she made the statement regarding her ex-husband’s penis
and states that whether Plaintiff uses profanity in her personal life or has made racist comments in
the past is irrelevant as to whether Grub sexually harassed her at Atrion. (Pl.’s Opp’n Br. 20-2 1).
Like Grilbo’s alleged conduct and statements, whether Plaintiff made similar sexually
inappropriate statements or engaged in racist behavior are questions of fact.
Consequently,
because there are genuine disputes of fact concerning whether Grub’ s alleged behavior was severe
or pervasive enough to satisfy the second element of a hostile work environment sexual harassment
claim, as well as whether Paige, herself, engaged in sexually explicit and racist behavior, summary
judgment must be denied. Since this Court has denied summary judgment based on the “severe or
pervasive” element, it is unnecessary for the Court to discuss the third or fourth elements of a
hostile work environment sexual harassment claim.
16
VII
At this juncture, because the Court has denied summary judgment as to Plaintiff’s hostile
work environment sexual harassment claim, this Court cannot decide whether Plaintiff was
constructively discharged from Atrion.
Under the LAD, a “constructive discharge” occurs when an “employer knowingly
permit[s] conditions of discrimination in employment so intolerable that a reasonable person
subject to them would resign.” Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 27-28
(2002) (quoting Muench v. Township of Haddon, 255 N.J. Super. 288, 302, 605 A.2d 242 (N.J.
Super. Ct. App. Div. 1992) (internal citation omitted).
The employee alleging constructive
discharge must demonstrate that she did everything that was necessary to remain employed rather
than simply quit. Shepherd, 174 N.J. at 28. A trial court should consider the nature of the alleged
sexual 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 other relevant circumstances. Shepherd, 174 N.J. at
28 (internal citations omitted).
A constructive discharge claim requires more egregious conduct than that sufficient for a
hostile work environment claim, and thus envisions a “sense of outrageous, coercive and
unconscionable requirements.” Shepherd, 174 N.J. at 28 (quoting Jones v. Aluminum Shapes, Inc.,
339 N.J. Super. 412, 428, 772 A.2d 34 (N.J. Super. Ct. App. Div. 2001)).
As stated, this Court has not ruled on whether Paige has fully demonstrated that she was
sexually harassed, which effectively precludes an analysis of whether she was constructively
discharged from Atrion because of such alleged harassment.
17
VIII
Accordingly, for the reasons stated, Defendants’ motion for summary judgment is denied.
ORDER
This matter having come before the Court on Defendants’ Motion for Summary Judgment
(ECF No. 20), and the Court having carefully reviewed and taken into consideration the
submissions of the parties, as well as the arguments and exhibits therein presented, and for good
cause shown, and for all of the foregoing reasons,
IT IS on this
)
day of November, 2019,
ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 20) is DENIED.
kjL€a
PETER G. SHERIDAN, U.S.D.J.
18
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