RAMONA L. MCBRIDE VS. FOULKE MANAGEMENT, ETC. (L-2633-17, ATLANTIC COUNTY AND STATEWIDE)

R
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2648-19

RAMONA L. MCBRIDE,

          Plaintiff-Appellant,

v.

FOULKE MANAGEMENT,
CORP., d/b/a ATLANTIC
JEEP CHRYSLER FIAT,

     Defendant-Respondent.
__________________________

                   Submitted February 10, 2021 – Decided May 18, 2021

                   Before Judges Accurso, Vernoia, and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Docket No. L-2633-17.

                   Swartz Swidler, LLC, attorneys for appellant (Daniel
                   A. Horowitz, on the briefs).

                   Capehart & Scatchard, PA, attorneys for respondent
                   (Laura D. Ruccolo, on the brief).

PER CURIAM
      In Aguas v. State, our Supreme Court held that an employer has an

affirmative defense to a claim it is vicariously liable for a supervisor's hostile

environment sexual discrimination under the New Jersey Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -50. 

220 N.J. 494

, 521-24 (2015).

The Court determined an employer is not vicariously liable for the

discriminatory actions of a supervisor where the employee is not subject to a

tangible employment action and the employer proves by a preponderance of the

evidence "that [it] exercised reasonable care to prevent and to correct promptly

sexually harassing behavior" and "the plaintiff employee unreasonably failed to

take advantage of preventive or corrective opportunities provided by the

employer or to otherwise avoid harm."

Id. at 524.

      Following three weeks of employment as a sales trainee at a car dealership

owned by defendant Foulke Management Corp., d/b/a Atlantic Jeep Chrysler

Fiat, plaintiff Ramona L. McBride filed a complaint alleging her supervisor,

sales manager Jack Dellafave, made unwanted sexual advances, and, when she

rebuffed the advances, Dellafave terminated her employment. In her complaint,

plaintiff asserted causes of action under the LAD for hostile environment sexual




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discrimination and retaliation, and she claimed defendant is vicariously liable

for Dellafave's alleged actions. 1

      Following discovery, defendant moved for summary judgment. In support

of its motion, defendant made a focused, precise, and limited argument. It

claimed it is not vicariously liable because the undisputed facts established

defendant is entitled to judgment as a matter of law under the affirmative defense

adopted by the Court in Aguas. Defendant argued plaintiff was not subject to a

tangible employment action and she failed to promptly report Dellafave's alleged




1
   In Aguas, the Court explained an employer may be liable for a supervisor's
sexual harassment of an employee based on either "a direct cause of
action . . . for negligence or recklessness under [Restatement (Second) of
Agency] § 219(2)(b) [(Am. Law Inst. 1958)]" or "a claim for vicarious liability
under Restatement § 

219(2)(d).” 220 N.J. at 512

. Plaintiff's complaint does not
expressly allege defendant is vicariously liable for Dellafave's alleged
discriminatory and retaliatory actions. We interpret the complaint to aver
defendant is vicariously liable for Dellafave's actions because the complaint
details Dellafave's alleged actions and asserts defendant is liable for them.
Moreover, plaintiff conceded at oral argument before the motion court, and
argues on appeal, her claims against defendant are based on its alleged vicarious
liability for Dellafave's actions. The complaint does not claim defendant's
negligence or recklessness resulted in Dellafave's alleged discriminatory and
retaliatory conduct, and plaintiff does not argue on appeal the complaint should
be interpreted to assert either a negligence or recklessness claim under
Restatement § 219(2)(b). We therefore limit our analysis to plaintiff's claim
defendant is vicariously liable for Dellafave's alleged actions under Restatement
§ 219(2)(d).


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actions in accordance with defendant's anti-harassment and anti-discrimination

policy. The motion court agreed and granted defendant summary judgment.

      On appeal, plaintiff claims the court erred by finding the Aguas

affirmative defense barred her claim.      She contends the undisputed facts

establish she was subject to a tangible employment action—the termination of

her employment and a loss of compensation—or, in the alternative, there is a

fact issue as to whether she suffered a tangible employment action. Having

reviewed the summary judgment record, we are convinced there is a genuine

issue of material fact as to whether plaintiff was subject to a tangible

employment action. As a result, the record does not permit a finding defendant

is entitled to judgment as a matter of law based on the affirmative defense

adopted in Aguas. We therefore reverse and remand for further proceedings.

      "We review de novo the trial court's grant of summary judgment, applying

the same standard as the trial court." Abboud v. Nat'l Union Fire Ins., 450 N.J.

Super. 400, 406 (App. Div. 2017). This standard mandates the grant of summary

judgment "if the pleadings, depositions, answers to interrogatories[,] and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-2(c).


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      In our review of a summary judgment record, we limit our determination

of the undisputed facts to those properly presented in accordance with Rule 4:46-

2. Under the Rule:

            [A] party moving for summary judgment is required to
            submit a "statement of material facts" . . . "set[ting]
            forth in separately numbered paragraphs a concise
            statement of each material fact as to which the movant
            contends there is no genuine issue together with a
            citation to the portion of the motion record establishing
            the fact or demonstrating that it is uncontroverted."

            [Claypotch v. Heller, Inc., 

360 N.J. Super. 472

, 488
            (App. Div. 2003) (quoting R. 4:46-2(a)).]

"[A] party opposing a motion for summary judgment [must] 'file a responding

statement either admitting or disputing each of the facts in the movant's

statement.'"

Ibid. (quoting R. 4:46-2(b)).

"[A]ll material facts in the movant's

statement which are sufficiently supported will be deemed admitted for purposes

of the motion only, unless specifically disputed by citation conforming to the

requirements of paragraph (a) demonstrating the existence of a genuine issue as

to the fact." R. 4:46-2(b).

      These requirements for the filing of statements of material facts under

Rule 4:46-2 are "critical" and "entail[] a relatively undemanding burden."

Housel v. Theodoridis, 

314 N.J. Super. 597

, 604 (App. Div. 1998). They were

"designed to 'focus [a court's] . . . attention on the areas of actual dispute' and

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                                        5
[to] 'facilitate the court's review' of the motion." 

Claypotch, 360 N.J. Super. at

488

(second alteration in original) (quoting Pressler & Verniero, Current N.J.

Court Rules, cmt. 1.1 on R. 4:46-2 (2003)). As such, a trial court must decide a

motion for summary judgment based only upon the "factual assertions . . . that

were . . . properly   included   in   the       motion   [for]   and   [in   opposition

to] . . . summary judgment" pursuant to Rule 4:46-2. Kenney v. Meadowview

Nursing & Convalescent Ctr., 

308 N.J. Super. 565

, 573 (App. Div. 1998); see

also Lombardi v. Masso, 

207 N.J. 517

, 549 (2011) (Rivera-Soto, J., dissenting)

(stating a trial court must decide a summary judgment motion "[b]ased on the

[Rule]-defined, specifically tailored summary judgment record before it").

Likewise, we will only consider "those [properly included] factual assertions"

on appeal. 

Kenney, 308 N.J. Super. at 573

; see also 

Lombardi, 207 N.J. at 549

(Rivera-Soto, J., dissenting) ("That limitation—that a summary judgment

determination is defined and limited by the summary judgment record—also

applies on appeal."). Therefore, in our review of the court's summary judgment

order, we limit our inquiry to, and rely solely on, the undisputed facts established

by the parties' Rule 4:46-2 statements.2 

Kenney, 308 N.J. Super. at 573

.


2
   In its opinion on the summary judgment motion, the court incorrectly made
findings of fact based on its review of documents, including deposition


                                                                                 A-2648-19
                                            6
      The parties' Rule 4:46-2 statements established that plaintiff began her

employment with defendant as a sales trainee on March 6, 2017. Michael

McErlean was defendant's general manager during plaintiff's short-lived

employment. At the time of the actions plaintiff claims violated the LAD,

defendant had an anti-harassment and anti-discrimination policy it provided to

employees, including plaintiff. The employees, including plaintiff, were also

tested on the policy. In pertinent part, the policy provided that if an employee

felt he or she was being sexually harassed, the employee was to contact Robert

Armstrong, who was defendant's Director of Security and Internal Investigations

and    was     responsible    for    investigating    harassment     complaints.

"When . . . Armstrong receives a complaint of sexual harassment, he interviews

the victim and then determines how to proceed in his investigation."




transcripts, that were appended to the motion papers, but the purported facts
found by the court were not included in the parties' Rule 4:46-2 statements.
Similarly, on appeal, the parties make factual assertions supported by citations
to documents and transcripts, but the alleged facts were not presented to the
motion court in the parties' respective Rule 4:46-2 statements. It is not the role
of the motion court or this court to sift through documents and transcripts
annexed to summary judgment motion papers and make findings of fact based
on a review of what is provided. Rule 4:46-2 provides the prescribed method
for presenting the proposed facts supporting, and opposing, a summary
judgment motion. As noted, we limit the facts we consider in our de novo review
of the record to those presented in the parties' Rule 4:46-2 statements.


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      Salespeople, including sales trainees like plaintiff, reported directly to

sales managers. At the start of plaintiff's employment, she was advised she

reported to two sales managers, one of whom was Dellafave.                   Although

defendant denies "[s]ales [m]anagers assigned tasks to the [s]alespeople,

inclusive of trainees," it is undisputed that for at least the first week of plaintiff's

employment, the sales managers "started [the sales trainees] off by making

phone calls to customers . . . that already purchased from [defendant], and then

the[] [managers] would let [the trainees] walk around and get familiar

with . . . the cars and stuff like that."

      Shortly after plaintiff began working for defendant, Dellafave sent her text

messages stating he was "attracted" to her, inviting her to his hotel room, and

offering to pay for her cab ride to his hotel. Plaintiff declined Dellafave's

proposals. While at work on March 30, 2017, Dellafave asked plaintiff "'why

[she had not] been taking him up on his offers [to] come hang out with him

privately,' which [plaintiff] understood to mean hang out privately with him and

have sex." Plaintiff again declined Dellafave's entreaty.

      "In response to [plaintiff's rejection] of his sexual advances, . . . Dellafave

told [p]laintiff . . . to clock out, and 'leave and don't come back.'" Plaintiff

testified Dellafave "did not say [she was] fired, he just said clock out and leave."


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                                            8
In response to Dellafave's statement, plaintiff clocked out and left the

workplace. Plaintiff contacted McErlean that same day to complain about

Dellafave's treatment. Plaintiff "told [McErlean] exactly what happened" and

"what [Dellafave] was doing."

      McErlean in turn contacted Armstrong to inform him of plaintiff's

complaints.   The next day, March 31, plaintiff met with Armstrong and

McErlean at the car dealership. Armstrong testified that at this meeting, plaintiff

"felt that [Dellafave] dismissed her, fired her." However, McErlean informed

plaintiff that "even though [Dellafave] sent her home, she was not fired, she was

still employed."

      Armstrong requested that plaintiff produce the text messages from

Dellafave. Armstrong intended to pick the text messages up from plaintiff the

next day, but plaintiff did not appear for work. Plaintiff did not return to the

dealership until April 10, at which point she first provided the text messages and

submitted a written complaint to Armstrong. She did not return until April 10

because she "didn't know what to do and . . . [was] confused and so forth." After

reviewing the text messages, Armstrong believed Dellafave sexually harassed

plaintiff, and Dellafave's employment was terminated that same day.




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      After Dellafave's termination, defendant "told [plaintiff her] job is here,

[she was] never fired," and that she "could stay if [she] want[ed] to." However,

plaintiff "chose not to" return to work for defendant.

      Prior to the March 30, 2017 incident, defendant paid plaintiff $400 in

weekly salary. However, her paystub for that week showed compensation of

$262. Plaintiff was not compensated for any time after she clocked out on March

30.

      Based on that record, as well as the court's consideration of purported facts

not included in the parties' Rule 4:46-2 statements, the court rendered an opinion

from the bench. The court found Dellafave was plaintiff's supervisor and that

he sexually harassed her. The court also noted that, for purposes of its motion,

defendant conceded plaintiff could establish a prima facie case of hostile

environment sex discrimination by her supervisor, Dellafave, and that the issue

presented was whether the undisputed facts allowed judgment in defendant's

favor based on the affirmative defense adopted by the Court in Aguas. The court

concluded, based in part on facts asserted by defendant outside of the Rule 4:46-

2 statements, that: Dellafave did not have authority to fire plaintiff; plaintiff was

not fired; and no tangible employment action was taken against her.




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                                        10
        The court found plaintiff's hostile environment sex discrimination and

retaliation claims under the LAD were barred as a matter of law by the

affirmative defense adopted in Aguas because plaintiff "failed to take advantage

of the preventative or corrective opportunit[ies]" presented by defendant's anti-

harassment policy; she did not follow defendant's reporting procedure or

cooperate with the investigation; and she "voluntarily separated herself from

employment." 

See 220 N.J. at 523-24

. The court further found the undisputed

facts established plaintiff did not suffer a tangible employment action because

Dellafave did not have the actual or apparent authority to terminate plaintiff 's

employment, and his statement directing plaintiff to "clock out, leave, [and]

don't    come    back,"   did   not       "convey . . . plaintiff   was   fired    or

otherwise . . . terminated or separated from her employment." Relying on the

Court's decision in Aguas, the motion court found defendant was entitled to

judgment as a matter of law, and entered an order granting defendant summary

judgment on each of plaintiff's claims.

        "Discrimination based on gender is 'peculiarly repugnant in a society

which prides itself on judging each individual by his or her merits.'" Lehmann

v. Toys 'R' Us, Inc., 

132 N.J. 587

, 600 (1993) (quoting Grigoletti v. Ortho




                                                                              A-2648-19
                                      11
Pharm. Corp., 

118 N.J. 89

, 96 (1990)).           "The LAD specifically prohibits

employment discrimination based on sex," ibid., providing:

              It shall be [an] unlawful employment practice, or, as the
              case may be, an unlawful discrimination:

              a. For an employer, because of the race, creed, color,
              national origin, ancestry, age, marital status, affectional
              or    sexual      orientation,    [or]   sex . . . of   any
              individual, . . . to refuse to hire or employ or to bar or
              to discharge . . . from employment such individual or to
              discriminate against such individual in compensation or
              in     terms,     conditions[,]     or    privileges     of
              employment . . . .

              [Ibid. (third, fourth, fifth, and seventh alterations in
              original) (quoting N.J.S.A. 10:5-12).]

"Sexual harassment is a form of sex discrimination that violates . . . the LAD."

Id. at 601.

      "[A]n employer may be . . . liable, in accordance with principles of

agency law, for sexual harassment committed by a supervisor that results in a

hostile work environment." 

Aguas, 220 N.J. at 498

(citing 

Lehmann, 132 N.J.

at 592

). Proper analysis of a claim against an employer for sexual harassment

committed by a supervisor is dependent on whether the plaintiff asserts "a direct

cause of action against the employer for negligence or recklessness under

[Restatement (Second) of Agency] § 219(2)(b) [(Am. Law Inst. 1958)]," or "a

claim for vicarious liability under Restatement § 219(2)(d)."

Id. at 512.

Where,

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                                         12
as here, a vicarious liability claim is asserted, the factfinder is required to engage

in a "detailed fact-specific analysis," and answer each of the following four

questions:

             1. Did the employer delegate the authority to the
             supervisor to control the situation of which the plaintiff
             complains . . . ?

             2. Did the supervisor exercise that authority?

             3. Did the exercise of authority result in a violation of
             [the LAD]?

             4. Did the authority delegated by the employer to the
             supervisor aid the supervisor in injuring the plaintiff?

             [Id. at 514 (alterations in original) (quoting 

Lehmann,
132 N.J. at 620

).]

      "If each of these questions are answered in the affirmative, 'then the

employer is vicariously liable for the supervisor's harassment under

[Restatement] § 219(2)(d).'"

Ibid. (alteration in original)

(quoting 

Lehmann,

132 N.J. at 620

). "[A]n allegedly harassing employee is the complainant's

supervisor if that employee had the authority to take or recommend tangible

employment actions affecting the complaining employee, or to direct the

complainant's day-to-day activities in the workplace."

Id. at 500.

      Affirmative responses to the four questions do not end the inquiry. As

noted, in 

Aguas, 220 N.J. at 523-24

, the Court adopted the affirmative defense

                                                                               A-2648-19
                                         13
to an employer's vicarious liability for a supervisor's sexual harassment

articulated by the United States Supreme Court in Burlington Indus., Inc. v.

Ellerth, 

524 U.S. 742

, 765 (1998), and Faragher v. City of Boca Raton, 

524 U.S.

775

, 807-08 (1998). Our Supreme Court explained:

            In a hostile work environment sexual harassment case
            under the LAD in which the plaintiff alleges employer
            vicarious liability under Restatement § 219(2)(d), the
            plaintiff has the initial burden of presenting a prima
            facie hostile work environment claim. If no tangible
            employment action has been taken against the plaintiff,
            the defendant employer may assert the two-pronged
            affirmative defense of Ellerth and Faragher. To
            establish that defense, the defendant employer has the
            burden to prove, by a preponderance of the
            evidence . . . : first, that the employer exercised
            reasonable care to prevent and to correct promptly
            sexually harassing behavior; and second, that the
            plaintiff employee unreasonably failed to take
            advantage of preventive or corrective opportunities
            provided by the employer or to otherwise avoid harm.

            

[Aguas, 220 N.J. at 524

(emphasis added) (first citing
            

Faragher, 524 U.S. at 807

; and then citing 

Ellerth, 524
U.S. at 746

).]

      "The . . . affirmative defense derives from agency principles" and

"furthers the LAD's purpose of eliminating sexual harassment in the workplace

by motivating employers to maintain effective anti-harassment policies, and by

encouraging employees to take prompt action against harassing supervisors in

accordance with those policies."

Id. at 500.

                                                                         A-2648-19
                                      14
      The reason "the . . . affirmative defense may not be asserted 'when the

supervisor's harassment culminates in a tangible employment action, such as

discharge, demotion[,] or undesirable reassignment,'"

id. at 522

(first quoting

Faragher, 524 U.S. at 808

; and then quoting 

Ellerth, 524 U.S. at 765

), is "because

'[w]hen a supervisor makes a tangible employment decision, there is assurance

the injury could not have been inflicted absent the agency relation . . . .

Tangible employment actions are the means by which the supervisor brings the

official power of the enterprise to bear on subordinates,'"

ibid. (alterations in

original)

(quoting 

Ellerth, 524 U.S. at 761-62

); see also 

Ellerth, 524 U.S. at 762

("A tangible employment action in most cases inflicts direct economic harm. As

a general proposition, only a supervisor, or other person acting with the authority

of the company, can cause this sort of injury."). "[O]ne co-worker . . . cannot

dock another's pay, nor can one co-worker demote another.                Tangible

employment actions fall within the special province of the supervisor. The

supervisor has been empowered by the company as a distinct class of agent to

make economic decisions affecting other employees under his or her control."

Ellerth, 524 U.S. at 762

.

      Here, defendant's summary judgment motion was based solely on the

contention that it was entitled to judgment as a matter of law because the


                                                                             A-2648-19
                                       15
undisputed facts established the affirmative defense adopted by the Court in

Aguas.3 As the court recognized, for purposes of the summary judgment motion,

defendant did not dispute Dellafave was plaintiff's supervisor or that plaintiff

"established a prima facie [hostile] work environment claim." And, the limited

facts presented in the parties' Rule 4:46-2 statements do not otherwise permit a

determination as to whether defendant is vicariously liable for Dellafave's sexual

harassment based on the four questions that must be answered to determine such

liability under Restatement § 219(2)(d). See 

Aguas, 220 N.J. at 514

.

      Defendant's statement of material facts supporting its summary judgment

motion is directed solely to the existence of defendant's anti-harassment and

anti-discrimination policy, plaintiff's alleged failure to comply with it, and the

purported lack of a tangible employment action that are pertinent to the

affirmative defense adopted in Aguas. Because defendant did not claim in its

summary judgment motion that plaintiff could not establish a prima facie case

of vicarious liability against defendant under Restatement § 219(2)(d), see

Aguas, 220 N.J. at 514

, and, in fact, defendant conceded plaintiff could establish



3
   In response to plaintiff's counterstatement of material facts submitted in
opposition to defendant's statement of material facts supporting its motion,
defendant repeatedly asserts that its summary judgment motion is "directed to
the issue of its affirmative defense under Aguas."
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                                       16
a prima facie case for purposes of the motion, our de novo review of the record

focuses solely on the narrow issue of whether the undisputed material facts

properly presented to the motion court establish the affirmative defense adopted

in Aguas.

      The affirmative defense does not apply where an employee is subject to a

tangible employment action. See

id. at 524.

We therefore first consider whether

the undisputed facts establish plaintiff was not subject to a tangible employment

action. Plaintiff argues that the facts, when viewed in a light most favorable to

her as the non-moving party, see Brill v. Guardian Life Ins. Co. of Am., 

142 N.J.

520

, 523 (1995), establish Dellafave terminated her employment and, in

addition, she suffered a loss of pay as a result of Dellafave's actions. More

particularly, she asserts Dellafave's statement, made in response to her rejection

of his sexual advances, that she "clock out, and 'leave and don't come back,'"

constituted a tangible employment action—the termination of her employment

and a resulting loss of pay. In the alternative, she argues there is a genuine issue

of material fact as to whether the statement constituted the termination of her

employment and resulted in a loss of pay.

      In analyzing claims under the LAD, we consider federal precedent "'a key

source of interpretive authority,' unless 'that law sharply diverges from prior


                                                                              A-2648-19
                                        17
authority construing the LAD [or does not] further[] the objectives of the LAD

[or] comport[] with our prior holdings.'" Crisitello v. St. Theresa Sch., 465 N.J.

Super. 223, 228 n.2 (App. Div. 2020) (alterations in original) (quoting 

Aguas,

220 N.J. at 510

n.4); see also Turner v. Wong, 

363 N.J. Super. 186

, 210 (App.

Div. 2003) (finding "[i]n interpreting the LAD, the federal law has consistently

been considered for guidance" (citing Borngesser v. Jersey Shore Med. Ctr., 

340

N.J. Super. 369

, 380 (App. Div. 2001))); Chisolm v. Manimon, 

97 F. Supp. 2d

615

, 621 (D.N.J. 2000) (stating "[t]he New Jersey courts generally interpret the

LAD by reliance upon federal court decisions construing the analogous federal

antidiscrimination statutes").

      We have found, in accordance with federal decisions, that "tangible

employment action[s] constitute[] a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits."

Entrot v. BASF Corp., 

359 N.J. Super. 162

, 188 (App. Div. 2003) (quoting

Ellerth, 524 U.S. at 761

); see also Howington v. Quality Rest. Concepts, LLC,

298 F. App’x 436

, 442 (6th Cir. 2008) ("While de minimis employment actions

and 'very temporary' actions are not materially adverse[,] . . . those involving

changes such as a termination or a suspension constitute adverse employment


                                                                              A-2648-19
                                        18
actions." (quoting Bowman v. Shawnee State Univ., 

220 F.3d 456

, 462 (6th Cir.

2000))). Federal courts have also "recognized that a 'loss of pay or benefits' can

constitute a tangible job detriment." 

Howington, 298 F. App’x at 442

; see also

Ellerth, 524 U.S. at 762

("A tangible employment action in most cases inflicts

direct economic harm."); Thornton v. Fed. Express Corp., 

530 F.3d 451

, 454-

55 (6th Cir. 2008) (finding the plaintiff did not "suffer[] a tangible job

detriment" because the action taken by the defendant employer "did not entail

an increase in responsibilities or a demotion or loss of pay or benefits ").

      For example, in Howington, the Sixth Circuit Court of Appeals found

"[t]he record in [the] case [was] unclear as to whether [the p]laintiff lost any of

her hourly wages when [her supervisor] sent her home from 

work.” 298 F. App’x

at 442

. However, the court noted the plaintiff "also earned wages through tips

as a day-shift bartender"; that, "[a]s a result, [the p]laintiff undoubtedly lost

compensation in the form of unearned tips for the days she was not at work after

[her supervisor] sent her home"; and that, therefore, "a reasonable jury could

find that [the p]laintiff" suffered a tangible employment action.

Ibid.

Here, defendant argues

on appeal that Dellafave did not have the authority

to fire plaintiff, but this assertion finds no support in the undisputed facts

presented by defendant in its Rule 4:46-2 submissions. It is improper for


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                                       19
defendant to urge on appeal another basis for summary judgment – that

Dellafave did not have the authority to fire plaintiff – based on allegedly

undisputed facts it did not include in its Rule 4:46-2 statement. Moreover, facts

related to Dellafave's authority are pertinent to the four questions that must be

answered to determine if an employer is vicariously liable for a supervisor's

harassment under Restatement § 219(2)(d).        See 

Aguas, 220 N.J. at 514

.

Defendant did not include statements of material fact related to Dellafave's

authority in its Rule 4:46-2 submissions, and, as noted, defendant's motion for

summary judgment was not based on a claim plaintiff could not establish a prima

facie case of vicarious liability under Restatement § 219(2)(d). Defendant

argued it was entitled to summary judgment based only on the affirmative

defense adopted in Aguas. In addition, and as we have explained, defendant

stipulated Dellafave was plaintiff's supervisor for purposes of analyzing whether

the Aguas affirmative defense bars plaintiff's claims as a matter of law. See

Aguas, 220 N.J. at 500

.

      In our view, the facts alleged by plaintiff, when viewed in the light most

favorable to her, create a genuine issue of material fact as to whether Dellafave

terminated plaintiff's employment and whether plaintiff suffered economic

damages—a loss in pay—as a result of Dellafave's actions. In the first instance,


                                                                           A-2648-19
                                      20
we disagree with the motion court that Dellafave's statement could not be

understood as constituting the termination of plaintiff's employment. It is not

disputed that Dellafave was plaintiff's supervisor, and he instructed her to clock

out, leave, and "don't come back." An employer does not have to use the words

"fired" or "terminated" to communicate the end of an individual's employment.

Telling an employee to clock out, leave the premises, and "don't come back"

sufficiently communicates the same dire message. In any event, Dellafave's

statement, at a minimum, raises a genuine issue of material fact as to whether

plaintiff's employment was actually terminated by him at that time.           The

undisputed facts establish that, in response to Dellafave's statement, plaintiff

clocked out and left the dealership.

      We appreciate the undisputed facts also establish that, on the same day,

plaintiff reported Dellafave's actions to McErlean, and, on the following day,

plaintiff met with McErlean and Armstrong. During the meeting, McErlean

informed plaintiff she was not fired and "was still employed." Plaintiff did not

return to work following Dellafave's directive and her meeting with McErlean

and Armstrong. She went to the dealership ten days later only to provide the

harassing messages Dellafave sent to her, and defendant immediately terminated

Dellafave's employment.


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      Defendant argues those facts establish plaintiff was neither fired nor did

she suffer any loss in pay as a result of Dellafave's actions, and that plaintiff

chose not to continue her employment at the dealership. We are not persuaded

those facts are dispositive of plaintiff's contention she suffered a tangible

employment action.      Again, defendant conceded Dellafave was plaintiff's

supervisor. Dellafave directed plaintiff to "clock out," meaning he required that

plaintiff leave the dealership prior to the time she would have otherwise left

work that day.    In addition, plaintiff did not receive her standard weekly

paycheck of $400 after she clocked out early in accordance with Dellafave's

directive; instead she received only $262. It can be reasonably inferred plaintiff

did not receive compensation for the time after she clocked out even if McErlean

attempted to rescind Dellafave's alleged termination of plaintiff's employment

the following day by telling her she was not "fired" and could continue to work.

The facts also permitted the reasonable inference in plaintiff's favor that she

suffered a loss of income for the period following her early clock-out based on

Dellafave's directive and prior to McErlean's statement purporting to rescind the

alleged termination.

      We determine only that the summary judgment record does not support

the motion court's determinations plaintiff did not suffer a tangible employment


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                                       22
action and, as a result, the affirmative defense adopted in Aguas was available

to bar plaintiff's claims as a matter of law. We are convinced the facts reflected

in the parties' Rule 4:46-2 statements, when viewed in the light most favorable

to plaintiff, present a genuine issue of material fact as to whether Dellafave's

sexually harassing conduct culminated in a tangible employment action—the

termination of plaintiff's employment, a loss of income, or both. See 

Aguas,

220 N.J. at 522

. That fact issue precludes a proper determination defendant is

entitled to summary judgment based on the affirmative defense adopted in

Aguas on defendant's narrowly targeted summary judgment motion. The motion

court erred by holding otherwise.

      Reversed and remanded for further proceedings.          We do not retain

jurisdiction.




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