Preview
UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 1 of 53 Trans ID: LCV2024197506
SCIARRA & CATRAMBONE, L.L.C.
1130 Clifton Avenue
Clifton, New Jersey 07013
(973) 242-2442
(973) 242-3118 [Facsimile]
Attorneys for Plaintiff
_________________________________
: SUPERIOR COURT OF NEW
KAREN MORO, : JERSEY
: LAW DIVISION
Plaintiff, : UNION COUNTY
:
-v- : DOCKET NO: UNN-L-003025-23
:
UNION TOWNSHIP, : CIVIL ACTION
JOHN DOE(S) 1-10, JANE DOE(S) 1-10,:
and XYZ CORP(S) 1-10, :
:
Defendants. :
:
PLAINTIFF’S BRIEF IN OPPOSITION TO
DEFENDANT’S RULE 4:6-2[e] MOTION TO DISMISS
Of Counsel:
Charles J. Sciarra (#011371996)
Of Counsel & On the Brief:
Jeffrey D. Catrambone (#024491996)
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Table of Contents
PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
LEGAL ARGUMENT
I. DEFENDANT HAS FAILED TO SATISFY THE EXTRAORDINARILY
STRICT STANDARD THAT GOVERNS MOTIONS TO DISMISS AT
THE PLEADING STAGE AND, AS SUCH, THE MOTION SHOULD BE
DENIED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
II. DEFENDANT CANNOT SATISFY THE MOTION TO DISMISS
STANDARD AS PLAINTIFF HAS “SUGGESTED” A CAUSE OF
ACTION UNDER THE LAD FOR A HOSTILE WORK ENVIRONMENT
BASED UPON HER GENDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
A. The legal framework for Plaintiff’s LAD hostile work environment claim. .17
B. Plaintiff pleads facts in her Complaint sufficient to satisfy the “severe or
pervasive” standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
C. This Court should reject Defendant’s statute of limitations and laches
arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
III. DEFENDANT CANNOT SATISFY THE MOTION TO DISMISS
STANDARD AS PLAINTIFF HAS “SUGGESTED” A CAUSE OF
ACTION UNDER THE LAD FOR GENDER DISCRIMINATION. . . . . . .40
IV. DEFENDANT CANNOT SATISFY THE MOTION TO DISMISS
STANDARD AS PLAINTIFF HAS “SUGGESTED” A CAUSE OF
ACTION UNDER THE LAD FOR RETALIATION. . . . . . . . . . . . . . . . . 46
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
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PRELIMINARY STATEMENT
This Brief is filed on behalf of Plaintiff Karen Moro (“Plaintiff” or “Moro”)
in opposition to the motion to dismiss Plaintiff’s complaint with prejudice pursuant
to Rule 4:6-2[e], or alternatively to “strike as immaterial those allegations which are
time-barred by the statute of limitations”, filed by Defendant Township of Union
(“Defendant” or “the Township”). (See Defendant’s Brief at 6).
As outlined infra, despite Defendant’s inaccurate and misplaced assertions
about Plaintiff’s claims of gender discrimination and hostile work environment
based upon her gender, Plaintiff’s Complaint explicitly alleges throughout the
Counts of the Complaint violations of the Law Against Discrimination (“LAD”),
based upon the facts outlined in detail in the Complaint that give rise to claims of:
[1] hostile work environment and acts of harassment that would not have occurred
but for Plaintiff’s gender (Count One, ¶’s 271-272); [2] discrimination based upon
Plaintiff’s gender (Count Two, ¶280); and [3] retaliation because of Plaintiff’s
activity protected under the LAD, specifically her complaints to Defendant of
harassment and discrimination based upon Plaintiff’s gender (Count Three, ¶’s 285-
287). Defendant’s assertions that “Plaintiff’s allegations fail to demonstrate that she
was the victim of any harassment, discrimination and or retaliation” (see
Defendant’s Brief at 6) is without basis under the standard applicable to a motion to
dismiss at the pleading stage.
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This Court should summarily reject Defendant’s groundless argument that the
LAD does not provide protections to a female police officer who endures a hostile
work environment by way of, for example, an incident where a male officer shoots
her in the leg and buttocks repeatedly with a pellet gun in police headquarters as
other male colleagues laughed in approval, with the department and municipality
taking no action as a result of this outrageous incident. Equally without any legal
basis is Defendant’s specious suggestion that the same female officer is expected to
endure explicitly gender-based comments, including those about her female
genitalia, without any protections under the LAD. Instead, the facts pleaded in the
Complaint sufficiently constitute, for the purposes of this motion, “severe or
pervasive” conduct that is actionable under the LAD.
Plaintiff has further pleaded sufficient facts about adverse employment
actions, including unpaid disciplinary suspensions, giving rise to Plaintiff’s claims
of discrimination, disparate treatment, and retaliation. These facts include
allegations that male officers who engaged in egregious conduct were not subject to
disciplinary action commensurate with that misconduct. Defendant’s statute of
limitations and “laches” claims are equally without merit as the events pleaded in
the Complaint that occurred in 2014 and 2015, while limited as compared to those
events alleged in the Complaint that happened within the LAD’s two-year statute of
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limitations in 2022 and 2023, are properly in this case and provide evidence in
support of Plaintiff’s LAD claims under the case law cited infra.
For the reasons set forth herein, Defendant’s motion to dismiss must be denied
in its entirety.
STATEMENT OF FACTS
Plaintiff alleges in her Complaint as follows, with citations by paragraph
number to the Complaint filed on September 14, 2023, attached as Exhibit 1 to
Plaintiff’s Counsel’s Certification filed herewith.
Plaintiff has been a Police Officer for the Union Township Police Department
(“the Department”) since July 2000, having worked previously in law enforcement
as a Union County Corrections Officer and Police Officer in Washington Township
in Morris County. (¶’s 11-14). Plaintiff holds a Bachelor’s Degree in Criminal
Justice from Rutgers University and a Master’s Degree in Human Resources and
Administration from Seton Hall University. (¶’s 10 &15).
Plaintiff’s Complaint outlines only two issues that occurred in 2014 and 2015,
specifically: [1] Plaintiff’s relationship with then-Officer Jamie Soltys and the
harassment she suffered after she ended the relationship, including Soltys continuing
to contact her, sending her flowers and leaving her a heart of roses, showing up at
Plaintiff’s house, and attempting to give other officers the impression that he and
Plaintiff were still dating, with that harassment continuing even after Soltys’
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supervisor told him to cease and leave Plaintiff alone (¶’s 16-27); and [2] a Detective
Lieutenant in the Department pursing a romantic interest in Plaintiff by giving her
gifts and notes, and Plaintiff being denied an assignment that she sought and for
which she was qualified in the Family Relations Bureau, of which the Detective-
Lieutenant was the supervisor, with Plaintiff and Detective Lieutenant meeting with
Police Director Zieser, who dismissed Plaintiff’s concerns about the false rumor that
the Detective Lieutenant and Plaintiff were dating and that negatively impacting her
being assigned to the Detective Bureau, and with the Director responding that he did
not care who was sleeping with whom. (¶’s 28-51). Plaintiff also alleges facts
regarding Defendant’s harassment of her regarding her accumulation of voucher
days and compensatory time that she used to care for a close family member who
has had a history of serious health issues, and Defendant prohibiting Plaintiff from
accruing any further “comp time” while allowing other officers to do so. (¶’s 52-
61).
The balance of the facts alleged in the subsequent 200-plus paragraphs of the
Complaint’s Statement of Facts arises from events in 2022 and 2023. (¶’s 62-268).
For example, in 2022, other Officers in the Department, including those who worked
in the same bureau as Plaintiff, were permitted to exchange workdays, specifically,
to work a weekend day in exchange for a weekday off. (¶’s 62-68).
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In January 2022, officers in the Department, including a Sergeant, a
Lieutenant, a Deputy Chief, and other civilian employees, illegally transported a
snow blower that had been seized during the search warrant of a home to the Deputy
Chief's parents’ house for personal use. (¶’s 76-79). Plaintiff then checked to see if
the appropriate entry had been made in the Department’s software program that
tracks property, and after realizing it had not, she made the entry indicating that the
snow blower was transported to the Deputy Chief’s parent’s home. (¶’s 80-81).
Plaintiff also advised Lieutenant Donnelly of the above, stating in part, “if this was
not brought to my attention this would have been a missing valuable item from the
Beast [the Department’s property tracking software program] that I would not have
been able to account for.” (¶’s 82-83). Lieutenant Donnelly responded by calling
Plaintiff into his office, yelling at her for documenting the issue, and threatening her
with insubordination, stating that Plaintiff had no right to question the Deputy Chief.
(¶’s 84-89). Plaintiff brought this issue to the attention of a detective and had him
take pictures of the garage from which the snow blower was missing. (¶90).
In June 2022, Plaintiff submitted a written request to be assigned to the
Department’s Bicycle Unit, noting her experience for the position, but Defendant
denied that reassignment. (¶’s 94-95). Further, in October 2022, Plaintiff submitted
a request to be considered for participation in community-based Police Athletic
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League events, citing her prior experience with local school programs and
community policing; Defendants did not select her. (¶’s 103-106).
Plaintiff also suffered numerous overtly sexual acts of harassment in the
workplace in 2022. An incident occurred in May 2022 where a male officer in the
presence of male coworkers made a comment regarding Plaintiff’s female genitalia.
(¶93). Further, in October 2022, while Plaintiff was discussing with a male coworker
how she could receive additional side jobs, the coworker grabbed his belt and began
to motion as to unbuckle his pants; Plaintiff responded by advising the male
coworker that he had the wrong girl. (¶’s 96-99). On another occasion, a male
supervisor in the Department entered Plaintiff’s office and asked if she got an
upgrade on her boobs because they looked larger. (¶100). Additionally, on several
occasions, Officer Leamy of the Department made comments to Plaintiff to take her
boobs out. (¶102).
On January 2, 2023, shortly after reporting to Police Headquarters at 6:00 am
for duty, a male officer shot Plaintiff with a pellet gun in her buttocks and upper leg
as Plaintiff was walking through the Department’s Staff Services Office. This
incident is outlined in detail in Plaintiff’s Complaint at ¶’s 107-138). Just before
getting shot, Plaintiff heard a male officer state, “I’d shoot my wife with this.”
(¶115). Plaintiff was shot several times, as she felt a stinging sensation on her body
and she observed several yellow pellets on the floor; the shots did not stop until
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Plaintiff entered her office. (¶’s 118; 123-125). While getting shot, she heard several
officers laughing. (¶119).
Plaintiff’s buttocks and leg continued to sting while she was in her office after
getting shot, at which she teared up and felt humiliated from the fact that this
misconduct audibly amused others. (¶126-128). After the incident, while walking
through the Department and into the Staff Services area, Officer Ribau of the
Department approached Plaintiff and admitted to shooting her, stating, “are you ok,
are you mad I shot the balls at you?” or words to that effect. (¶133-134). Ribau did
not apologize to Plaintiff. (¶138).
The day after the incident, January 3, 2023, Plaintiff reported the incident to
her direct supervisor, Lieutenant Donnelly, who appeared uncomfortable and did not
want Plaintiff to say anything more about the incident. Lieutenant Donnelly did not
take any action under the Department's anti-harassment policy to report this incident
up the chain-of-command or otherwise follow the policy. (¶141).
Plaintiff was afraid to file a formal complaint with the Department about the
incident for the following reasons: [a] Moro was concerned about Lieutenant
Donnelly’s response when she reported the incident to him; [b] Moro was also afraid
of not being taken seriously; [c] One of the reasons Moro was concerned that this
incident would not be taken seriously was that the Department did not take a civilian
female's complaint seriously when she reported that Officer Soltys and other male
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officers sent her pictures of their genitals. For instance, Soltys was promoted to
Sergeant and assigned to Internal Affairs after this incident; [d] Another reason Moro
was concerned that this incident would not be taken seriously was that she caught
Public Safety Director, then-Captain Christopher Donnelly, in the Staff Services
Office while another employee was on a couch and under covers. Following this
incident, Moro's Card Key access was taken away from her; [e] Moro was afraid
about being called a "rat" and not having other officers back her up on calls; [f] Moro
was concerned that if she complained she would be denied overtime details and side
job opportunities; [g] She was worried that Officer Ribau would cause issues for her
as he oversees trainings and range qualifications; [h] Moro was apprehensive about
complaining about an officer that is extremely close to ranking officers and the
Director of the Police Department; [i] Moro was uneasy about making a complaint
because of the way officers who have questioned rules or regulations have been
adversely treated; [j] Moro was concerned about making a complaint to Internal
Affairs personnel or her union because of conflicts of interest they had with her;
[k]Moro was apprehensive about complaining because Deputy Chief Breslow
directed subordinate supervisors and civilians to unlawfully take a snow blower
seized as part of a criminal investigation and illegally deliver it to the Deputy Chief's
family members' house for their personal use; & [l] Moro was hesitant to come
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forward due to Defendant's mishandling of sexual harassment complaints made by
her and other female employees in the past. (¶143).
Following the pellet gun incident, two police supervisors approached Moro
and noted that she "looked so down" and asked "why [she] doesn't smile anymore
and if [she] was mad at [him]" or words to that effect. (¶144). Despite her concerns
outlined above, Moro complained about the incident. (¶145).
On or about January 25, 2023, Plaintiff reported the pellet gun incident to a
female Lieutenant in the Department, Dorothy Mascidlo-Skiper, as she felt most
comfortable speaking to another female about it. During that time, the Lieutenant
asked about Plaintiff’s relationship with the officers involved and told Plaintiff that
she was familiar with the pellet gun and that Ribau was skilled with weapons and
had military experience. (¶’s 148-156). Plaintiff provided a written officer’s report
about the incident at the Lieutenant’s request but advised the Lieutenant that she did
not feel comfortable with internal affairs investigating the complaint due to past
conflicts. (¶’s 157-159).
On or about January 26, 2023, Lieutenant Martin of the Department notified
Plaintiff that he was assigned to investigate Plaintiff’s complaint and took her
statement via interview on or about January 30, 2023. (¶’s 160-162). Two days
later, on or about February 1, 2023, Plaintiff observed Officer Ribau, who shot
Plaintiff with the pellet gun, Officer Devlin of the Department, and Lieutenant
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Mascidlo-Skiper discussing the incident and laughing until they noticed Plaintiff was
listening. (¶163). There were other occasions where Plaintiff entered a room as
Ribau was discussing the pellet gun incident and laughing about it. (¶164-165).
Further, on or about February 2, 2023, Plaintiff noticed Lieutenant Martin and
Ribau, the target of Plaintiff’s complaint and the investigation that Martin was
supposedly conducting, discussing the incident on their phone while parked in their
vehicles in the Department’s parking lot. (¶’s 167-171). Plaintiff also observed
several Lieutenants speaking to Ribau after her interview with Martin. (¶172).
Further, on or about February 9, 2023, Moro heard from another officer that
Detective Captain Pete DiGena and Detective Lieutenant Martin were talking loudly
out in the parking lot about the pellet gun incident. (¶175).
Additionally, around that time in February 2023, the Police Director’s father,
a civilian, made comments to Plaintiff, stating to her, “hello, lady,” in the presence
of other officers, including a Captain, who chuckled in response. (¶174). Also, the
Director’s father upon seeing Moro in the backlot at headquarters, the Police
Director's civilian father stated to her, "Oh no hug for me?" and "I forgot we're not
allowed to hug anymore," or words to that effect. (¶176).
As for the investigation of Plaintiff’s complaint regarding the pellet gun
incident, the Department never provided to her any formal notice of the outcome of
the investigation, who was disciplined as a result, or how those individuals were
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supposedly disciplined, if at all; Plaintiff noted that no suspensions were scheduled
for Officers Ribau, Leamy or Mahon. (¶’s 179-186).
In March 2023, Plaintiff heard Ribau bragging to two female employees about
his sex life and noticed that Ribau placed his face over the face of her boyfriend on
a picture the officer had on her desk. (¶’s 190 & 192). During this time, the
Department denied Plaintiff an overtime assignment. (¶194-197). Further, in
February and March 2023, Lieutenant Martin stopped responding to Plaintiff’s
emails about cases. (¶’s 186 & 191).
On or about April 19, 2023, Defendant served Plaintiff with a notice that she
was the target of an internal affairs investigation allegedly arising from her work
schedule on specific dates in 2022 while working a “Jobs in Blue” (side jobs
available to Union Township Police Officers). (¶’s 198-199). At that time, Plaintiff
advised Sergeant Soltys, who had served her with the notice, that Plaintiff’s
supervisor, Lieutenant Donnelly, adjusted Plaintiff’s work schedule to allow her to
work the jobs. (¶200).
On or about April 21, 2023, through her counsel, Moro notified the Town that
she would be filing a lawsuit asserting violations of the Law Against Discrimination.
(¶201).
On or about April 24, 2023, Moro received another notification that an
Internal Affairs complaint was made against her, advising that the complaint
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involved Plaintiff’s actions on April 14, 2023, while working a Job in Blue side shift
at Shoprite. (¶202). On or about April 27, 2023, Sergeant Soltys and Captain Cohen
served Plaintiff with two more Internal Affairs notifications, one advising her that
she was under investigation for additional dates in 2021 on which she worked “Jobs
in Blue,” and the second involving her vacation days in 2022. (¶’s 209-211).
Plaintiff submitted an officer’s report seeking the records required to address the
disciplinary charges against her. (¶’s 215-217).
On or about May 24, 2023, Lieutenant Florio of the Department asked
Plaintiff if she was retiring on August 1st; Plaintiff responded that she was not and
did not have the requisite twenty-five years of service. (¶’s 226-227). Lieutenant
Florio then told Moro he wanted her to leave the job and that he would give her the
year of service credit. Moro asked Lieutenant Florio if he was trying to get rid of
her, but he did not respond. (¶228). A few minutes after this conversation ended,
Lieutenant Florio once again approached Moro and asked her about her prior plans
to become a teacher. Moro responded that she decided not to do that; Lieutenant
Florio responded, "so it was a pipe dream," or words to that effect. (¶’s 229-230).
On or about May 25, 2023, the Department served Moro with disciplinary
charges seeking a one-day suspension and suspension from the Jobs in Blue program
from June 12, 2023 to June 25, 2023, as a result of the internal affairs investigation
of Plaintiff’s alleged actions on April 14, 2023, while working a Job in Blue side
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shift at Shoprite. (¶231; see also (¶202, supra). Other male law enforcement officers
have engaged in much more serious rules infractions and have received the same or
only slightly more discipline. (¶232). For example, Florio and Donnelly received a
one-day and three-day suspension for stealing time from the Township by driving
down to the shore while on duty, which they had done on several occasions. (¶’s
233-235).
Detective Lieutenant Martin, who was assigned to investigate the “Jobs in
Blue” internal affairs matter, made several admissions regarding Plaintiff’s lack of
guilt in that matter during the internal affairs interview of Plaintiff that he conducted
on June 15, 2023. (¶242).
Also, in June 2023, the Department initiated an internal affairs investigation
of Plaintiff because she worked a “Jobs in Blue” assignment during her “suspension”
from that detail. This is notwithstanding that Plaintiff had requested a hearing
regarding that disciplinary matter and no disciplinary action, specifically
Defendant’s suspension of Plaintiff from working Jobs in Blue, had been taken
against her due to the pending hearing and there thus is no imposition of any
disciplinary action at the time Plaintiff signed up to work the detail, which she
nonetheless immediately rescinded upon being directed to do so. (¶’s 244-251; 253).
Plaintiff ultimately received “counseling” as a result of the investigation initiated by
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the Department for working the Jobs in Blue assignment while she was on
“suspension” (which she was, in fact, not). (¶268).
Director Donnelly has imposed but then reduced the penalties for male law
enforcement officers who have engaged in significant work-related misconduct,
including male officers who have negligently mishandled their weapons but did not
receive discipline. (¶’s 254-255). Director Donnelly and other supervisors in the
Department have engaged in personal business while supposed to be working for the
Town. (¶’s 256-257). Additionally, in or about 2019, an officer mishandled a DWI,
which resulted in the death of a passenger, but the Department nonetheless did not
discipline that officer. (¶258).
The Department subsequently imposed a one-day suspension of Plaintiff on
July 26, 2023, due to the hearing on the first disciplinary action arising from
Plaintiff’s alleged actions on April 14, 2023, while working a “Job in Blue” at
Shoprite. (¶259). During that hearing, Sergeant Conners, who testified on behalf
of the Department: [a] admitted that Plaintiff did not engage in any wrongdoing as
alleged by the civilian in the original internal affairs complaint; [b] admitted that
Defendant was nonetheless proceeding with collateral discipline; & [c] provided
testimony which demonstrated that Moro followed the practice in effect related to
Officers working Jobs in Blue and she was being singled out for disparate treatment.
(¶’s 260-263).
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Before that departmental disciplinary hearing, Moro made Sergeant Connors
aware of conduct by other law enforcement officers who work Jobs in Blue,
specifically engaging in violations such as showing up for their side job late, not
showing up for their side jobs, appearing for duty out of uniform, and leaving their
posts. (¶’s 264-265). Even though Moro provided Sergeant Connors with this
notice, nothing has been done to these other law enforcement officers for their
violations. (¶266). Further, other Union sworn law enforcement officers have
violated Department policies and procedures or even engaged in criminal conduct
without being disciplined. (¶267).
Additionally, after filing the Complaint in this matter, on or about November
27, 2023, Defendant served Plaintiff with notice of disciplinary charges seeking a
three-day suspension as a result of the Jobs in Blue internal affairs investigation. A
departmental hearing has been scheduled. Plaintiff will amend her Complaint upon
Defendant imposing formal disciplinary action on that or any other matter. (See
Plaintiff’s Counsel’s Cert., filed herewith).
LEGAL ARGUMENT
I. DEFENDANT HAS FAILED TO SATISFY THE EXTRAORDINARILY
STRICT STANDARD THAT GOVERNS MOTIONS TO DISMISS AT
THE PLEADING STAGE AND, AS SUCH, THE MOTION SHOULD
BE DENIED.
In determining the adequacy of a pleading under R. 4:6-2(e), the Court must
only determine if a cause of action is “suggested” by the facts. Printing Mart v. Sharp
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Electronics, 116 N.J. 739, 746 (1989) quoting Velantzas v. Colgate-Palmolive Co.,
109 N.J. 189, 192 (1988). The Court “searches the complaint in depth and with
liberality to ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim, opportunity being given to amend if
necessary.” Id., quoting DiCristofaro v. Laurel Grove Memorial Park, 43 N.J. Super.
244, 252 (App. Div. 1957). A motion to dismiss brought under R. 4:6-2(e) at the
onset of litigation has “extraordinarily limited range” and “is granted only in the
rarest instances.” Geyer v. Faiella, 279 N.J. Super. 386, 389 (App. Div. 1995), certif.
denied, 141 N.J. 95 (1995). Additionally, if such a motion is granted, it should be
without prejudice. Ibid.
“At this preliminary stage of the litigation the Court is not concerned with the
ability of [plaintiff] to prove the allegation[s] contained in the complaint.” Ibid. All
allegations pled in the Complaint here are assumed true and the plaintiff is entitled
to “all reasonable factual inferences that those allegations support.” F.G. v.
MacDonell, 150 N.J. 550, 556 (1997). “If a generous reading of the allegations
merely suggests a cause of action, the complaint will withstand the motion.” Ibid.
Under this standard, the Court’s examination of the allegations in Plaintiffs’
Complaint is “at once painstaking and undertaken with a generous and hospitable
approach.” Printing Mart, 116 N.J. at 746. The Court’s test at this preliminary stage
of the litigation is simply “whether a cause of action is suggested by the facts.” Green
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v. Morgan Props., 215 N.J. 431, 451-52 (2013). This is especially so where the
primary issue in dispute is Defendant’s state of mind. See Wilson v. Amerada Hess
Corp., 168 N.J. 236, 254 (2001) (“[I]t has been recognized that one’s state of mind
is seldom capable of direct proof and ordinarily must be inferred from the
circumstances properly presented and capable of being considered by the court.”).
Under this extraordinarily strict standard, Defendant’s motion to dismiss fails
in its entirety.
II. DEFENDANT CANNOT SATISFY THE MOTION TO DISMISS
STANDARD AS PLAINTIFF HAS “SUGGESTED” A CAUSE OF
ACTION UNDER THE LAD FOR A HOSTILE WORK
ENVIRONMENT BASED UPON HER GENDER.
A. The legal framework for Plaintiff’s LAD hostile work environment claim.
Plaintiff alleges in her Complaint claims under the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1 et seq., of hostile work environment, gender
discrimination and disparate treatment, and retaliation. Our Supreme Court has
“long recognized that the essential purpose of the LAD is the ‘eradication of the
cancer of discrimination.’” Quinlan v. Curtiss-Wright Corp., 109 N.J. 319, 334
(1988), (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (1988)). This objective will
be obtained “through a liberal construction of its provisions.” Viscick v. Fowler
Equipment Co., Inc., 173 N.J. 1, 13 (2002); see also Anderson v. Exxon Co., 89 N.J.
483, 495 (1985) (observing that the LAD, a social remedial legislation, is deserving
of a liberal construction).
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Plaintiff has pled facts which satisfy the pleading standard for the four-prong
test for an actionable claim under the LAD related to a hostile work environment as
the complained of conduct (1) would not have occurred but for Plaintiff’s gender,
and it was (2) severe or pervasive1 enough to make (3) the plaintiff believe that (4)
the conditions of employment were altered and the working environment was hostile
or abusive. Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002),
(quoting Lehmann v. Toys R Us, Inc., 132 N.J. 587, 603-4 (1993)).
Under the first prong, the plaintiff must show by a preponderance of the
evidence that the harassing conduct would not have occurred but for the plaintiff’s
gender. Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 266 (App. Div. 1996).
“When the harassing conduct is sexual or sexist in nature, as with sexual comments
or touchings, the but-for element will automatically be satisfied.” Id. at 266 (citing
Lehmann, 132 N.J. at 605) (emphasis added).2 Additionally, “nonsexual
1 The “severe or pervasive” standard is a disjunctive, rather than conjunctive,
requirement. Hence, to satisfy the hostile work environment standard, the conduct
must be either severe or pervasive.
2
The Lehmann Court’s pronouncement that sexual conduct, such as comments or
touchings, automatically satisfies the first prong of the sexual harassment test has
been repeatedly applied by the Courts. See Davis v. Husain, 2013 WL 949496, Slip
Op. *5 (App. Div. March 2013) (Exhibit); see also J.T.’s Tire Service, Inc. v. United
Rentals North America, Inc., 411 N.J. Super. 236, 241 (App. Div. 2010). Further, in
Cowher, 425 N.J. Super. at 297, the Appellate Division applied Lehmann’s holding
to race-based harassment such as anti-Semitic comments.
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harassment may constitute a violation of a woman’s conditions of employment.”
Muench v. Township of Haddon, 255 N.J. Super. 288, 295-98 (App. Div. 1992)
(“whether the offending conduct is in the form of sexual advances or intimidation
and hostility toward a woman solely because she is a woman, the result is the same.”)
(emphasis added).
Pursuant to Lehmann, a plaintiff can establish a hostile work environment by
(1) sexual conduct such as comments or touchings; (2) in non-facially sex-based
harassment cases by also pointing out conduct that was sexually based;3 or (3) by
way of gender comparative evidence wherein only one gender suffered the non-
facially sex-based harassment. Lehmann, 132 N.J. at 603-04. Plaintiff has pled facts
to support the first two manners of establishing a hostile work environment claim by
pointing to sexual conduct such as [a] overtly sexual comments and [b] being shot
with a pellet gun by a male officer with other male colleagues laughing in approval,
as well as instances of non-facially sex-based harassment that is coupled with the
sex-based harassment.
3See Bredt v. Johnson, 2006 WL 941754, Slip Op. *5-6 (App. Div. April 2006) (in
race case, raced-based comments and racially insensitive remarks plaintiff was
forced to overhear coupled with facially neutral, non-racial harassment directed
towards plaintiff were sufficient to create a hostile work environment actionable
under the LAD) (Exhibit).
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Under the Lehmann Court’s test, “the second, third and fourth prongs, while
separable to some extent, are interdependent.” Lehmann, 132 N.J. at 604. “One
cannot inquire whether the alleged conduct was ‘severe or pervasive’ without
knowing how severe or pervasive it must be.” Ibid. (emphasis in original). “The
answer to that question lies in the other prongs: the conduct must be severe or
pervasive enough to make a reasonable [person of that gender] believe that the
conditions of employment are altered and [the] working environment is hostile.”
Ibid.; see also Taylor v. Metzger, 152 N.J. 490, 498 (1998).
Even a single incident can be sufficiently severe to establish an actionable
hostile work environment claim. Caggiano, 354 N.J. Super. at 126, fn. 9, citing
Taylor, 152 N.J. at 508. In Taylor, our Supreme Court held that “a single utterance
of an epithet can, under particular circumstances, create a hostile work
environment.” 152 N.J. at 501. The Taylor Court went on to find that the term “jungle
bunny” “is a slur that, in and of itself, is capable of contaminating the workplace.”
Id. at 503. The Court went on to reason that “the severity of the remark in this case
was exacerbated by the fact that it was uttered by a supervisor or superior officer.”
Ibid. It “greatly magnifies the gravity of the comment” and “immeasurably increased
its severity” that “the chief executive of the office in which plaintiff worked” was
the person uttering this racial epithet. Id. at 503-04.
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The Court must make this assessment based upon the “totality of the
circumstances.” Cutler v. Dorn, 196 N.J. 419, 431 (2008). The Lehmann Court
explained this concept as follows: “[r]ather than considering each incident in
isolation, courts must consider the cumulative effect of the various incidents, bearing
in mind that each successive episode has its predecessors, that the impact of the
separate incidents may accumulate, and that the work environment created may
exceed the sum of the individual episodes.” 132 N.J. at 607 (internal citations and
quotations omitted). Our Supreme Court has also directed that the analysis should
take into consideration whether the harassment is physically threatening or
humiliating. See Green v. Jersey City Bd. of Ed., 177 N.J. 434, 447 (2003).
Under the third and fourth prongs, Courts apply a “reasonable woman”
standard for evaluating hostile work environment gender harassment claims. Woods-
Pirozzi, 290 N.J. Super. at 267. This “reasonable woman, while not hypersensitive,
includes women who fall towards the more sensitive side of the spectrum of
reasonableness.” Id. at 267, citing Lehmann, 132 N.J. at 613 (emphasis added). The
Lehmann Court explained that using an objective, reasonable standard was to better
serve the LAD’s purpose of “eliminate[ing] real discrimination and harassment.”
132 N.J. at 612. “An objective reasonableness standard better focuses the court’s
attention on the nature and legality of the conduct rather than on the reaction of the
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individual plaintiff, which is more relevant to damages.” Ibid. Thus, our Supreme
Court has held:
When evaluating whether conduct is sufficiently severe or pervasive to
create a hostile work environment, we focus on the “harassing conduct
…, not its effect on the plaintiff or the work environment.” Lehmann,
supra, 132 N.J. at 606. That is because neither “a plaintiff’s subjective
response” to the harassment, Id. at 613, nor a defendant’s subjective
intent when perpetrating the harassment, Id. at 604-05, is controlling
whether an actionable hostile work environment claim exists. Cutler,
196 N.J. at 431.
Here, there exists no basis to dismiss any aspect of Plaintiff’s hostile work
environment claim under the LAD.
B. Plaintiff pleads facts in her Complaint sufficient to satisfy the “severe or
pervasive” standard.
Here, the allegations in the Complaint give rise to a claim of a hostile work
environment based upon the facts as alleged in the Complaint. Defendant focuses
its specious argument as to the “severe or pervasive” prong as to the allegations from
2014 and 2015 regarding then-Officer Soltys and the Detective Lieutenant who
pursued Plaintiff romantically.4 (Defendant’s Brief at 13-14). Defendant mentions
the incidents that occurred in 2022 and 2023 regarding, for example, Plaintiff getting
shot with a pellet gun repeatedly by a male officer in the buttocks and leg and the
overly sexual comments about Plaintiff’s “boobs” and a male officer making a sexual
4 Plaintiff addresses Defendant’s statute of limitations, laches, and continuing
violations arguments regarding these issues at Point II.C., infra.
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gesture to Plaintiff (See Defendant’s Brief at 14). However, Defendant does not,
and cannot, make a serious argument that those actions were not, given the totality
of the circumstances as alleged by Plaintiff, “severe or pervasive”.
This Court should reject Defendant’s citation to Anastasia, an unpublished
federal case, and Defendant’s accompanying misplaced argument in the context of
the 2014 and 2015 facts that overtly sexual remarks and unwanted touchings (which
are nonetheless alleged as to the events in 2022 and 2023) are required for a hostile
work environment claim under the LAD. (See Defendant’s Brief at 12-14). That is
directly contrary to our Supreme Court’s seminal opinion in Lehmann and the New
Jersey state case law interpreting it, cited herein. No “federal tribunal has any
authority to place a construction on a state statute different from the one rendered by
the highest court of the state.” Johnson v. Fankell, 520 U.S. 911, 916 (1997).5
As set forth above, Lehmann is the case where our Supreme Court departed
from the Title VII legal standard for a hostile work environment claim to frame out
a separate standard under the LAD. 132 N.J. at 600-01. In justifying this departure
from federal Title VII precedent, our Supreme Court observed as follows:
Although the substantive and procedural standards that we have
developed under the State’s LAD have been markedly influenced by
the federal experience, we have applied the Title VII standards with
flexibility and have not hesitated to depart from federal precedent if a
5 This Court should likewise reject Defendant’s citation to Rosati, a Pennsylvania
federal district court opinion interpreting Title VII, in improperly seeking to dismiss
Plaintiff’s discrimination claims under the LAD. (See Defendant’s Brief at 21-22).
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rigid application of its standards is inappropriate under the
circumstances. Ibid. (internal quotations omitted).
Similarly, in L.W. v. Toms River Regional Schools Board of Ed., 189 N.J. 381
(2007), the New Jersey Supreme Court rejected a defendant’s argument to apply
federal standards to the LAD. Therein, the defendant school board argued that the
more burdensome federal Title IX standard for school board liability should apply
to sexual harassment in the school setting. L.W., 189 N.J. at 404. Our Supreme Court
found, “as a matter of state law it would be unfair to apply a more onerous burden
on aggrieved students than on aggrieved employees”. Id. at 406. The L.W. Court
stated that students are no less protected than their adult counterparts in the
workplace. Ibid.
In Lehmann our Supreme Court explained that it decided to apply an objective
standard to a hostile work environment claims because it “provides flexibility”. 132
N.J. at 612. The Court went on to explain, “much conduct that would have been
considered acceptable twenty or thirty years ago would be considered sexual
harassment today. Ibid. As community standards evolve, the standard of what a
reasonable woman would consider harassment will also evolve.” Ibid.
This observation from Lehmann regarding community standards is over thirty
years old. Conduct that would have been acceptable when that case was decided in
1993 is now not acceptable in the workplace. In fact, society’s perception of sexual
harassment has changed dramatically just over the last few years. In 2017, the
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#MeToo movement went viral on social media and in traditional media outlets,
where millions of women and men around the world shared stories of abuse.
Reframing Sexual Violence: From #MeToo to Time’s Up, Stanford Social Innovation
Review, April 17, 2018 (Exhibit 2).6 As a result of this influx of people coming
forward with their personal stories of abuse, our community has come to an
understanding of the prevalence of sexual harassment and assault. In a recent survey
conducted by various nonprofits revealed that 81% of women and 43% of men in
the survey reported experiencing sexual harassment and/or assault. The Facts Behind
the #MeToo Movement: A National Study on Sexual Harassment and Assault, p. 14,
February 2018. (Exhibit 3). Notable to the present matter, a significant number of
women (62%) and men (26%) in the survey reported physically aggressive forms of
sexual harassment, which included sexual touching in an unwelcome way, being
physically followed, and being shown genitals against their will. Ibid.
Based upon the community standards we have in 2024, it makes no sense to
condone the behavior that is the subject of this litigation. While Defendant flippantly
argues that it should somehow avoid liability in this case, Lehmann’s objective
standard for assessing sexual harassment claims compels the opposite result.
6See also Breaking the Silence, Harvard Business Review, January 26, 2018 (Equal
Employment Opportunity Commissioner acknowledging cultural change due to
#MeToo movement) (Exhibit 4).
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There is a litany of New Jersey cases applying the LAD hostile work
environment standard, which found that the plaintiff demonstrated a hostile work
environment based upon significantly less egregious conduct than the facts pled in
this Complaint. For instance, in Bredt v. Johnson, 2006 WL 941754 (App. Div. April
2006), a white female plaintiff alleged a reverse discrimination hostile work
environment claim. The plaintiff alleged an African American female co-worker
made comments regarding the plaintiff’s “black bu2t,” and the same co-worker made
comments about how white people got all of the jobs at their employment, and there
were not enough black doctors and nurses. 2006 WL 941754, *5 (Exhibit 5).
The Bredt plaintiff also pointed to facially neutral harassing conduct. The
female African American co-worker told the Caucasian plaintiff that she hated her,
called the plaintiff stupid, called her an asshole once a week, and, on one occasion,
pushed her finger against the plaintiff’s breast. Id. at *5. Based upon both the race-
based and facially non-race-based conduct, the Appellate Division ruled as follows:
We are satisfied that when the race-based comments and conduct
directed at plaintiff, and the racially insensitive remarks about white
people plaintiff was forced to overhear, are considered along with the
facially neutral comments and conduct [plaintiff’s female African
American co-worker] directed towards plaintiff, a jury could
reasonably find that Johnson’s conduct and racially charged comments
were directed towards plaintiff because she was white, were sufficiently
severe or pervasive to make a reasonable person believe that the
conditions of the workplace had been altered, and that the working
environment had become hostile or abusive. Id. at *6 (citing Lehmann,
132 N.J. at 603-04) (emphasis added).
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As another example that Plaintiff has sufficiently pled facts that satisfy the
Lehmann hostile work environment test, the Court should consider the following
case decided at the summary judgment stage of the litigation. In Leonard v.
Metropolitan Life Ins. Co., 318 N.J. Super. 337, 339-40 (App. Div. 1999), the
plaintiff asserted that he was subject to a hostile work environment on the basis of
his disability, Type II diabetes. The entirety of the plaintiff’s hostile work
environment claim was premised upon two incidents with his supervisor. Leonard,
318 N.J. Super. at 340. First, the plaintiff asked his supervisor about the length of a
meeting because he would need to eat lunch. Ibid. When his supervisor replied, “so
do I,” plaintiff stated that if he did not eat lunch, he would be in a coma. Ibid. After
the meeting, the supervisor said to the plaintiff, “now get your diabetic ass out of
here before you die in my office.” Ibid.
Second, after the plaintiff informed his supervisor that he would be late to a
meeting because he needed to eat lunch, the supervisor stated as follows:
I don’t give a f – about you being diabetic and having low blood sugar
… We’re going to do things my way or we’re not going to do them.
Ibid.
The supervisor also asked plaintiff “who he was” in response to missing the meeting
and “f--- [you] being diabetic and having to stop for lunch.” Ibid.
Based upon these two incidents, the Appellate Division reversed the Trial
Court’s granting of summary judgment and remanded the matter for trial. Id. at 345-
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46. In reaching this holding, the Court “reject[ed] defendant’s assertion that the two
isolated derogatory comments in question are insufficient to support a cause of
action under the LAD.” Id. at 345.
As another example where the Court considered both overtly sexual and
facially non-sexual harassment, this Court should consider Poiner v. County of
Middlesex, 2007 WL 1627033, *1 (App. Div. June 7, 2007)
Preview
UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 1 of 53 Trans ID: LCV2024197506 SCIARRA & CATRAMBONE, L.L.C. 1130 Clifton Avenue Clifton, New Jersey 07013 (973) 242-2442 (973) 242-3118 [Facsimile] Attorneys for Plaintiff _________________________________ : SUPERIOR COURT OF NEW KAREN MORO, : JERSEY : LAW DIVISION Plaintiff, : UNION COUNTY : -v- : DOCKET NO: UNN-L-003025-23 : UNION TOWNSHIP, : CIVIL ACTION JOHN DOE(S) 1-10, JANE DOE(S) 1-10,: and XYZ CORP(S) 1-10, : : Defendants. : : PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S RULE 4:6-2[e] MOTION TO DISMISS Of Counsel: Charles J. Sciarra (#011371996) Of Counsel & On the Brief: Jeffrey D. Catrambone (#024491996) UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 2 of 53 Trans ID: LCV2024197506 Table of Contents PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 LEGAL ARGUMENT I. DEFENDANT HAS FAILED TO SATISFY THE EXTRAORDINARILY STRICT STANDARD THAT GOVERNS MOTIONS TO DISMISS AT THE PLEADING STAGE AND, AS SUCH, THE MOTION SHOULD BE DENIED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 II. DEFENDANT CANNOT SATISFY THE MOTION TO DISMISS STANDARD AS PLAINTIFF HAS “SUGGESTED” A CAUSE OF ACTION UNDER THE LAD FOR A HOSTILE WORK ENVIRONMENT BASED UPON HER GENDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 A. The legal framework for Plaintiff’s LAD hostile work environment claim. .17 B. Plaintiff pleads facts in her Complaint sufficient to satisfy the “severe or pervasive” standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 C. This Court should reject Defendant’s statute of limitations and laches arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 III. DEFENDANT CANNOT SATISFY THE MOTION TO DISMISS STANDARD AS PLAINTIFF HAS “SUGGESTED” A CAUSE OF ACTION UNDER THE LAD FOR GENDER DISCRIMINATION. . . . . . .40 IV. DEFENDANT CANNOT SATISFY THE MOTION TO DISMISS STANDARD AS PLAINTIFF HAS “SUGGESTED” A CAUSE OF ACTION UNDER THE LAD FOR RETALIATION. . . . . . . . . . . . . . . . . 46 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 3 of 53 Trans ID: LCV2024197506 PRELIMINARY STATEMENT This Brief is filed on behalf of Plaintiff Karen Moro (“Plaintiff” or “Moro”) in opposition to the motion to dismiss Plaintiff’s complaint with prejudice pursuant to Rule 4:6-2[e], or alternatively to “strike as immaterial those allegations which are time-barred by the statute of limitations”, filed by Defendant Township of Union (“Defendant” or “the Township”). (See Defendant’s Brief at 6). As outlined infra, despite Defendant’s inaccurate and misplaced assertions about Plaintiff’s claims of gender discrimination and hostile work environment based upon her gender, Plaintiff’s Complaint explicitly alleges throughout the Counts of the Complaint violations of the Law Against Discrimination (“LAD”), based upon the facts outlined in detail in the Complaint that give rise to claims of: [1] hostile work environment and acts of harassment that would not have occurred but for Plaintiff’s gender (Count One, ¶’s 271-272); [2] discrimination based upon Plaintiff’s gender (Count Two, ¶280); and [3] retaliation because of Plaintiff’s activity protected under the LAD, specifically her complaints to Defendant of harassment and discrimination based upon Plaintiff’s gender (Count Three, ¶’s 285- 287). Defendant’s assertions that “Plaintiff’s allegations fail to demonstrate that she was the victim of any harassment, discrimination and or retaliation” (see Defendant’s Brief at 6) is without basis under the standard applicable to a motion to dismiss at the pleading stage. 1 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 4 of 53 Trans ID: LCV2024197506 This Court should summarily reject Defendant’s groundless argument that the LAD does not provide protections to a female police officer who endures a hostile work environment by way of, for example, an incident where a male officer shoots her in the leg and buttocks repeatedly with a pellet gun in police headquarters as other male colleagues laughed in approval, with the department and municipality taking no action as a result of this outrageous incident. Equally without any legal basis is Defendant’s specious suggestion that the same female officer is expected to endure explicitly gender-based comments, including those about her female genitalia, without any protections under the LAD. Instead, the facts pleaded in the Complaint sufficiently constitute, for the purposes of this motion, “severe or pervasive” conduct that is actionable under the LAD. Plaintiff has further pleaded sufficient facts about adverse employment actions, including unpaid disciplinary suspensions, giving rise to Plaintiff’s claims of discrimination, disparate treatment, and retaliation. These facts include allegations that male officers who engaged in egregious conduct were not subject to disciplinary action commensurate with that misconduct. Defendant’s statute of limitations and “laches” claims are equally without merit as the events pleaded in the Complaint that occurred in 2014 and 2015, while limited as compared to those events alleged in the Complaint that happened within the LAD’s two-year statute of 2 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 5 of 53 Trans ID: LCV2024197506 limitations in 2022 and 2023, are properly in this case and provide evidence in support of Plaintiff’s LAD claims under the case law cited infra. For the reasons set forth herein, Defendant’s motion to dismiss must be denied in its entirety. STATEMENT OF FACTS Plaintiff alleges in her Complaint as follows, with citations by paragraph number to the Complaint filed on September 14, 2023, attached as Exhibit 1 to Plaintiff’s Counsel’s Certification filed herewith. Plaintiff has been a Police Officer for the Union Township Police Department (“the Department”) since July 2000, having worked previously in law enforcement as a Union County Corrections Officer and Police Officer in Washington Township in Morris County. (¶’s 11-14). Plaintiff holds a Bachelor’s Degree in Criminal Justice from Rutgers University and a Master’s Degree in Human Resources and Administration from Seton Hall University. (¶’s 10 &15). Plaintiff’s Complaint outlines only two issues that occurred in 2014 and 2015, specifically: [1] Plaintiff’s relationship with then-Officer Jamie Soltys and the harassment she suffered after she ended the relationship, including Soltys continuing to contact her, sending her flowers and leaving her a heart of roses, showing up at Plaintiff’s house, and attempting to give other officers the impression that he and Plaintiff were still dating, with that harassment continuing even after Soltys’ 3 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 6 of 53 Trans ID: LCV2024197506 supervisor told him to cease and leave Plaintiff alone (¶’s 16-27); and [2] a Detective Lieutenant in the Department pursing a romantic interest in Plaintiff by giving her gifts and notes, and Plaintiff being denied an assignment that she sought and for which she was qualified in the Family Relations Bureau, of which the Detective- Lieutenant was the supervisor, with Plaintiff and Detective Lieutenant meeting with Police Director Zieser, who dismissed Plaintiff’s concerns about the false rumor that the Detective Lieutenant and Plaintiff were dating and that negatively impacting her being assigned to the Detective Bureau, and with the Director responding that he did not care who was sleeping with whom. (¶’s 28-51). Plaintiff also alleges facts regarding Defendant’s harassment of her regarding her accumulation of voucher days and compensatory time that she used to care for a close family member who has had a history of serious health issues, and Defendant prohibiting Plaintiff from accruing any further “comp time” while allowing other officers to do so. (¶’s 52- 61). The balance of the facts alleged in the subsequent 200-plus paragraphs of the Complaint’s Statement of Facts arises from events in 2022 and 2023. (¶’s 62-268). For example, in 2022, other Officers in the Department, including those who worked in the same bureau as Plaintiff, were permitted to exchange workdays, specifically, to work a weekend day in exchange for a weekday off. (¶’s 62-68). 4 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 7 of 53 Trans ID: LCV2024197506 In January 2022, officers in the Department, including a Sergeant, a Lieutenant, a Deputy Chief, and other civilian employees, illegally transported a snow blower that had been seized during the search warrant of a home to the Deputy Chief's parents’ house for personal use. (¶’s 76-79). Plaintiff then checked to see if the appropriate entry had been made in the Department’s software program that tracks property, and after realizing it had not, she made the entry indicating that the snow blower was transported to the Deputy Chief’s parent’s home. (¶’s 80-81). Plaintiff also advised Lieutenant Donnelly of the above, stating in part, “if this was not brought to my attention this would have been a missing valuable item from the Beast [the Department’s property tracking software program] that I would not have been able to account for.” (¶’s 82-83). Lieutenant Donnelly responded by calling Plaintiff into his office, yelling at her for documenting the issue, and threatening her with insubordination, stating that Plaintiff had no right to question the Deputy Chief. (¶’s 84-89). Plaintiff brought this issue to the attention of a detective and had him take pictures of the garage from which the snow blower was missing. (¶90). In June 2022, Plaintiff submitted a written request to be assigned to the Department’s Bicycle Unit, noting her experience for the position, but Defendant denied that reassignment. (¶’s 94-95). Further, in October 2022, Plaintiff submitted a request to be considered for participation in community-based Police Athletic 5 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 8 of 53 Trans ID: LCV2024197506 League events, citing her prior experience with local school programs and community policing; Defendants did not select her. (¶’s 103-106). Plaintiff also suffered numerous overtly sexual acts of harassment in the workplace in 2022. An incident occurred in May 2022 where a male officer in the presence of male coworkers made a comment regarding Plaintiff’s female genitalia. (¶93). Further, in October 2022, while Plaintiff was discussing with a male coworker how she could receive additional side jobs, the coworker grabbed his belt and began to motion as to unbuckle his pants; Plaintiff responded by advising the male coworker that he had the wrong girl. (¶’s 96-99). On another occasion, a male supervisor in the Department entered Plaintiff’s office and asked if she got an upgrade on her boobs because they looked larger. (¶100). Additionally, on several occasions, Officer Leamy of the Department made comments to Plaintiff to take her boobs out. (¶102). On January 2, 2023, shortly after reporting to Police Headquarters at 6:00 am for duty, a male officer shot Plaintiff with a pellet gun in her buttocks and upper leg as Plaintiff was walking through the Department’s Staff Services Office. This incident is outlined in detail in Plaintiff’s Complaint at ¶’s 107-138). Just before getting shot, Plaintiff heard a male officer state, “I’d shoot my wife with this.” (¶115). Plaintiff was shot several times, as she felt a stinging sensation on her body and she observed several yellow pellets on the floor; the shots did not stop until 6 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 9 of 53 Trans ID: LCV2024197506 Plaintiff entered her office. (¶’s 118; 123-125). While getting shot, she heard several officers laughing. (¶119). Plaintiff’s buttocks and leg continued to sting while she was in her office after getting shot, at which she teared up and felt humiliated from the fact that this misconduct audibly amused others. (¶126-128). After the incident, while walking through the Department and into the Staff Services area, Officer Ribau of the Department approached Plaintiff and admitted to shooting her, stating, “are you ok, are you mad I shot the balls at you?” or words to that effect. (¶133-134). Ribau did not apologize to Plaintiff. (¶138). The day after the incident, January 3, 2023, Plaintiff reported the incident to her direct supervisor, Lieutenant Donnelly, who appeared uncomfortable and did not want Plaintiff to say anything more about the incident. Lieutenant Donnelly did not take any action under the Department's anti-harassment policy to report this incident up the chain-of-command or otherwise follow the policy. (¶141). Plaintiff was afraid to file a formal complaint with the Department about the incident for the following reasons: [a] Moro was concerned about Lieutenant Donnelly’s response when she reported the incident to him; [b] Moro was also afraid of not being taken seriously; [c] One of the reasons Moro was concerned that this incident would not be taken seriously was that the Department did not take a civilian female's complaint seriously when she reported that Officer Soltys and other male 7 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 10 of 53 Trans ID: LCV2024197506 officers sent her pictures of their genitals. For instance, Soltys was promoted to Sergeant and assigned to Internal Affairs after this incident; [d] Another reason Moro was concerned that this incident would not be taken seriously was that she caught Public Safety Director, then-Captain Christopher Donnelly, in the Staff Services Office while another employee was on a couch and under covers. Following this incident, Moro's Card Key access was taken away from her; [e] Moro was afraid about being called a "rat" and not having other officers back her up on calls; [f] Moro was concerned that if she complained she would be denied overtime details and side job opportunities; [g] She was worried that Officer Ribau would cause issues for her as he oversees trainings and range qualifications; [h] Moro was apprehensive about complaining about an officer that is extremely close to ranking officers and the Director of the Police Department; [i] Moro was uneasy about making a complaint because of the way officers who have questioned rules or regulations have been adversely treated; [j] Moro was concerned about making a complaint to Internal Affairs personnel or her union because of conflicts of interest they had with her; [k]Moro was apprehensive about complaining because Deputy Chief Breslow directed subordinate supervisors and civilians to unlawfully take a snow blower seized as part of a criminal investigation and illegally deliver it to the Deputy Chief's family members' house for their personal use; & [l] Moro was hesitant to come 8 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 11 of 53 Trans ID: LCV2024197506 forward due to Defendant's mishandling of sexual harassment complaints made by her and other female employees in the past. (¶143). Following the pellet gun incident, two police supervisors approached Moro and noted that she "looked so down" and asked "why [she] doesn't smile anymore and if [she] was mad at [him]" or words to that effect. (¶144). Despite her concerns outlined above, Moro complained about the incident. (¶145). On or about January 25, 2023, Plaintiff reported the pellet gun incident to a female Lieutenant in the Department, Dorothy Mascidlo-Skiper, as she felt most comfortable speaking to another female about it. During that time, the Lieutenant asked about Plaintiff’s relationship with the officers involved and told Plaintiff that she was familiar with the pellet gun and that Ribau was skilled with weapons and had military experience. (¶’s 148-156). Plaintiff provided a written officer’s report about the incident at the Lieutenant’s request but advised the Lieutenant that she did not feel comfortable with internal affairs investigating the complaint due to past conflicts. (¶’s 157-159). On or about January 26, 2023, Lieutenant Martin of the Department notified Plaintiff that he was assigned to investigate Plaintiff’s complaint and took her statement via interview on or about January 30, 2023. (¶’s 160-162). Two days later, on or about February 1, 2023, Plaintiff observed Officer Ribau, who shot Plaintiff with the pellet gun, Officer Devlin of the Department, and Lieutenant 9 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 12 of 53 Trans ID: LCV2024197506 Mascidlo-Skiper discussing the incident and laughing until they noticed Plaintiff was listening. (¶163). There were other occasions where Plaintiff entered a room as Ribau was discussing the pellet gun incident and laughing about it. (¶164-165). Further, on or about February 2, 2023, Plaintiff noticed Lieutenant Martin and Ribau, the target of Plaintiff’s complaint and the investigation that Martin was supposedly conducting, discussing the incident on their phone while parked in their vehicles in the Department’s parking lot. (¶’s 167-171). Plaintiff also observed several Lieutenants speaking to Ribau after her interview with Martin. (¶172). Further, on or about February 9, 2023, Moro heard from another officer that Detective Captain Pete DiGena and Detective Lieutenant Martin were talking loudly out in the parking lot about the pellet gun incident. (¶175). Additionally, around that time in February 2023, the Police Director’s father, a civilian, made comments to Plaintiff, stating to her, “hello, lady,” in the presence of other officers, including a Captain, who chuckled in response. (¶174). Also, the Director’s father upon seeing Moro in the backlot at headquarters, the Police Director's civilian father stated to her, "Oh no hug for me?" and "I forgot we're not allowed to hug anymore," or words to that effect. (¶176). As for the investigation of Plaintiff’s complaint regarding the pellet gun incident, the Department never provided to her any formal notice of the outcome of the investigation, who was disciplined as a result, or how those individuals were 10 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 13 of 53 Trans ID: LCV2024197506 supposedly disciplined, if at all; Plaintiff noted that no suspensions were scheduled for Officers Ribau, Leamy or Mahon. (¶’s 179-186). In March 2023, Plaintiff heard Ribau bragging to two female employees about his sex life and noticed that Ribau placed his face over the face of her boyfriend on a picture the officer had on her desk. (¶’s 190 & 192). During this time, the Department denied Plaintiff an overtime assignment. (¶194-197). Further, in February and March 2023, Lieutenant Martin stopped responding to Plaintiff’s emails about cases. (¶’s 186 & 191). On or about April 19, 2023, Defendant served Plaintiff with a notice that she was the target of an internal affairs investigation allegedly arising from her work schedule on specific dates in 2022 while working a “Jobs in Blue” (side jobs available to Union Township Police Officers). (¶’s 198-199). At that time, Plaintiff advised Sergeant Soltys, who had served her with the notice, that Plaintiff’s supervisor, Lieutenant Donnelly, adjusted Plaintiff’s work schedule to allow her to work the jobs. (¶200). On or about April 21, 2023, through her counsel, Moro notified the Town that she would be filing a lawsuit asserting violations of the Law Against Discrimination. (¶201). On or about April 24, 2023, Moro received another notification that an Internal Affairs complaint was made against her, advising that the complaint 11 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 14 of 53 Trans ID: LCV2024197506 involved Plaintiff’s actions on April 14, 2023, while working a Job in Blue side shift at Shoprite. (¶202). On or about April 27, 2023, Sergeant Soltys and Captain Cohen served Plaintiff with two more Internal Affairs notifications, one advising her that she was under investigation for additional dates in 2021 on which she worked “Jobs in Blue,” and the second involving her vacation days in 2022. (¶’s 209-211). Plaintiff submitted an officer’s report seeking the records required to address the disciplinary charges against her. (¶’s 215-217). On or about May 24, 2023, Lieutenant Florio of the Department asked Plaintiff if she was retiring on August 1st; Plaintiff responded that she was not and did not have the requisite twenty-five years of service. (¶’s 226-227). Lieutenant Florio then told Moro he wanted her to leave the job and that he would give her the year of service credit. Moro asked Lieutenant Florio if he was trying to get rid of her, but he did not respond. (¶228). A few minutes after this conversation ended, Lieutenant Florio once again approached Moro and asked her about her prior plans to become a teacher. Moro responded that she decided not to do that; Lieutenant Florio responded, "so it was a pipe dream," or words to that effect. (¶’s 229-230). On or about May 25, 2023, the Department served Moro with disciplinary charges seeking a one-day suspension and suspension from the Jobs in Blue program from June 12, 2023 to June 25, 2023, as a result of the internal affairs investigation of Plaintiff’s alleged actions on April 14, 2023, while working a Job in Blue side 12 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 15 of 53 Trans ID: LCV2024197506 shift at Shoprite. (¶231; see also (¶202, supra). Other male law enforcement officers have engaged in much more serious rules infractions and have received the same or only slightly more discipline. (¶232). For example, Florio and Donnelly received a one-day and three-day suspension for stealing time from the Township by driving down to the shore while on duty, which they had done on several occasions. (¶’s 233-235). Detective Lieutenant Martin, who was assigned to investigate the “Jobs in Blue” internal affairs matter, made several admissions regarding Plaintiff’s lack of guilt in that matter during the internal affairs interview of Plaintiff that he conducted on June 15, 2023. (¶242). Also, in June 2023, the Department initiated an internal affairs investigation of Plaintiff because she worked a “Jobs in Blue” assignment during her “suspension” from that detail. This is notwithstanding that Plaintiff had requested a hearing regarding that disciplinary matter and no disciplinary action, specifically Defendant’s suspension of Plaintiff from working Jobs in Blue, had been taken against her due to the pending hearing and there thus is no imposition of any disciplinary action at the time Plaintiff signed up to work the detail, which she nonetheless immediately rescinded upon being directed to do so. (¶’s 244-251; 253). Plaintiff ultimately received “counseling” as a result of the investigation initiated by 13 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 16 of 53 Trans ID: LCV2024197506 the Department for working the Jobs in Blue assignment while she was on “suspension” (which she was, in fact, not). (¶268). Director Donnelly has imposed but then reduced the penalties for male law enforcement officers who have engaged in significant work-related misconduct, including male officers who have negligently mishandled their weapons but did not receive discipline. (¶’s 254-255). Director Donnelly and other supervisors in the Department have engaged in personal business while supposed to be working for the Town. (¶’s 256-257). Additionally, in or about 2019, an officer mishandled a DWI, which resulted in the death of a passenger, but the Department nonetheless did not discipline that officer. (¶258). The Department subsequently imposed a one-day suspension of Plaintiff on July 26, 2023, due to the hearing on the first disciplinary action arising from Plaintiff’s alleged actions on April 14, 2023, while working a “Job in Blue” at Shoprite. (¶259). During that hearing, Sergeant Conners, who testified on behalf of the Department: [a] admitted that Plaintiff did not engage in any wrongdoing as alleged by the civilian in the original internal affairs complaint; [b] admitted that Defendant was nonetheless proceeding with collateral discipline; & [c] provided testimony which demonstrated that Moro followed the practice in effect related to Officers working Jobs in Blue and she was being singled out for disparate treatment. (¶’s 260-263). 14 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 17 of 53 Trans ID: LCV2024197506 Before that departmental disciplinary hearing, Moro made Sergeant Connors aware of conduct by other law enforcement officers who work Jobs in Blue, specifically engaging in violations such as showing up for their side job late, not showing up for their side jobs, appearing for duty out of uniform, and leaving their posts. (¶’s 264-265). Even though Moro provided Sergeant Connors with this notice, nothing has been done to these other law enforcement officers for their violations. (¶266). Further, other Union sworn law enforcement officers have violated Department policies and procedures or even engaged in criminal conduct without being disciplined. (¶267). Additionally, after filing the Complaint in this matter, on or about November 27, 2023, Defendant served Plaintiff with notice of disciplinary charges seeking a three-day suspension as a result of the Jobs in Blue internal affairs investigation. A departmental hearing has been scheduled. Plaintiff will amend her Complaint upon Defendant imposing formal disciplinary action on that or any other matter. (See Plaintiff’s Counsel’s Cert., filed herewith). LEGAL ARGUMENT I. DEFENDANT HAS FAILED TO SATISFY THE EXTRAORDINARILY STRICT STANDARD THAT GOVERNS MOTIONS TO DISMISS AT THE PLEADING STAGE AND, AS SUCH, THE MOTION SHOULD BE DENIED. In determining the adequacy of a pleading under R. 4:6-2(e), the Court must only determine if a cause of action is “suggested” by the facts. Printing Mart v. Sharp 15 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 18 of 53 Trans ID: LCV2024197506 Electronics, 116 N.J. 739, 746 (1989) quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). The Court “searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.” Id., quoting DiCristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957). A motion to dismiss brought under R. 4:6-2(e) at the onset of litigation has “extraordinarily limited range” and “is granted only in the rarest instances.” Geyer v. Faiella, 279 N.J. Super. 386, 389 (App. Div. 1995), certif. denied, 141 N.J. 95 (1995). Additionally, if such a motion is granted, it should be without prejudice. Ibid. “At this preliminary stage of the litigation the Court is not concerned with the ability of [plaintiff] to prove the allegation[s] contained in the complaint.” Ibid. All allegations pled in the Complaint here are assumed true and the plaintiff is entitled to “all reasonable factual inferences that those allegations support.” F.G. v. MacDonell, 150 N.J. 550, 556 (1997). “If a generous reading of the allegations merely suggests a cause of action, the complaint will withstand the motion.” Ibid. Under this standard, the Court’s examination of the allegations in Plaintiffs’ Complaint is “at once painstaking and undertaken with a generous and hospitable approach.” Printing Mart, 116 N.J. at 746. The Court’s test at this preliminary stage of the litigation is simply “whether a cause of action is suggested by the facts.” Green 16 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 19 of 53 Trans ID: LCV2024197506 v. Morgan Props., 215 N.J. 431, 451-52 (2013). This is especially so where the primary issue in dispute is Defendant’s state of mind. See Wilson v. Amerada Hess Corp., 168 N.J. 236, 254 (2001) (“[I]t has been recognized that one’s state of mind is seldom capable of direct proof and ordinarily must be inferred from the circumstances properly presented and capable of being considered by the court.”). Under this extraordinarily strict standard, Defendant’s motion to dismiss fails in its entirety. II. DEFENDANT CANNOT SATISFY THE MOTION TO DISMISS STANDARD AS PLAINTIFF HAS “SUGGESTED” A CAUSE OF ACTION UNDER THE LAD FOR A HOSTILE WORK ENVIRONMENT BASED UPON HER GENDER. A. The legal framework for Plaintiff’s LAD hostile work environment claim. Plaintiff alleges in her Complaint claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., of hostile work environment, gender discrimination and disparate treatment, and retaliation. Our Supreme Court has “long recognized that the essential purpose of the LAD is the ‘eradication of the cancer of discrimination.’” Quinlan v. Curtiss-Wright Corp., 109 N.J. 319, 334 (1988), (quoting Fuchilla v. Layman, 109 N.J. 319, 334 (1988)). This objective will be obtained “through a liberal construction of its provisions.” Viscick v. Fowler Equipment Co., Inc., 173 N.J. 1, 13 (2002); see also Anderson v. Exxon Co., 89 N.J. 483, 495 (1985) (observing that the LAD, a social remedial legislation, is deserving of a liberal construction). 17 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 20 of 53 Trans ID: LCV2024197506 Plaintiff has pled facts which satisfy the pleading standard for the four-prong test for an actionable claim under the LAD related to a hostile work environment as the complained of conduct (1) would not have occurred but for Plaintiff’s gender, and it was (2) severe or pervasive1 enough to make (3) the plaintiff believe that (4) the conditions of employment were altered and the working environment was hostile or abusive. Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002), (quoting Lehmann v. Toys R Us, Inc., 132 N.J. 587, 603-4 (1993)). Under the first prong, the plaintiff must show by a preponderance of the evidence that the harassing conduct would not have occurred but for the plaintiff’s gender. Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 266 (App. Div. 1996). “When the harassing conduct is sexual or sexist in nature, as with sexual comments or touchings, the but-for element will automatically be satisfied.” Id. at 266 (citing Lehmann, 132 N.J. at 605) (emphasis added).2 Additionally, “nonsexual 1 The “severe or pervasive” standard is a disjunctive, rather than conjunctive, requirement. Hence, to satisfy the hostile work environment standard, the conduct must be either severe or pervasive. 2 The Lehmann Court’s pronouncement that sexual conduct, such as comments or touchings, automatically satisfies the first prong of the sexual harassment test has been repeatedly applied by the Courts. See Davis v. Husain, 2013 WL 949496, Slip Op. *5 (App. Div. March 2013) (Exhibit); see also J.T.’s Tire Service, Inc. v. United Rentals North America, Inc., 411 N.J. Super. 236, 241 (App. Div. 2010). Further, in Cowher, 425 N.J. Super. at 297, the Appellate Division applied Lehmann’s holding to race-based harassment such as anti-Semitic comments. 18 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 21 of 53 Trans ID: LCV2024197506 harassment may constitute a violation of a woman’s conditions of employment.” Muench v. Township of Haddon, 255 N.J. Super. 288, 295-98 (App. Div. 1992) (“whether the offending conduct is in the form of sexual advances or intimidation and hostility toward a woman solely because she is a woman, the result is the same.”) (emphasis added). Pursuant to Lehmann, a plaintiff can establish a hostile work environment by (1) sexual conduct such as comments or touchings; (2) in non-facially sex-based harassment cases by also pointing out conduct that was sexually based;3 or (3) by way of gender comparative evidence wherein only one gender suffered the non- facially sex-based harassment. Lehmann, 132 N.J. at 603-04. Plaintiff has pled facts to support the first two manners of establishing a hostile work environment claim by pointing to sexual conduct such as [a] overtly sexual comments and [b] being shot with a pellet gun by a male officer with other male colleagues laughing in approval, as well as instances of non-facially sex-based harassment that is coupled with the sex-based harassment. 3See Bredt v. Johnson, 2006 WL 941754, Slip Op. *5-6 (App. Div. April 2006) (in race case, raced-based comments and racially insensitive remarks plaintiff was forced to overhear coupled with facially neutral, non-racial harassment directed towards plaintiff were sufficient to create a hostile work environment actionable under the LAD) (Exhibit). 19 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 22 of 53 Trans ID: LCV2024197506 Under the Lehmann Court’s test, “the second, third and fourth prongs, while separable to some extent, are interdependent.” Lehmann, 132 N.J. at 604. “One cannot inquire whether the alleged conduct was ‘severe or pervasive’ without knowing how severe or pervasive it must be.” Ibid. (emphasis in original). “The answer to that question lies in the other prongs: the conduct must be severe or pervasive enough to make a reasonable [person of that gender] believe that the conditions of employment are altered and [the] working environment is hostile.” Ibid.; see also Taylor v. Metzger, 152 N.J. 490, 498 (1998). Even a single incident can be sufficiently severe to establish an actionable hostile work environment claim. Caggiano, 354 N.J. Super. at 126, fn. 9, citing Taylor, 152 N.J. at 508. In Taylor, our Supreme Court held that “a single utterance of an epithet can, under particular circumstances, create a hostile work environment.” 152 N.J. at 501. The Taylor Court went on to find that the term “jungle bunny” “is a slur that, in and of itself, is capable of contaminating the workplace.” Id. at 503. The Court went on to reason that “the severity of the remark in this case was exacerbated by the fact that it was uttered by a supervisor or superior officer.” Ibid. It “greatly magnifies the gravity of the comment” and “immeasurably increased its severity” that “the chief executive of the office in which plaintiff worked” was the person uttering this racial epithet. Id. at 503-04. 20 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 23 of 53 Trans ID: LCV2024197506 The Court must make this assessment based upon the “totality of the circumstances.” Cutler v. Dorn, 196 N.J. 419, 431 (2008). The Lehmann Court explained this concept as follows: “[r]ather than considering each incident in isolation, courts must consider the cumulative effect of the various incidents, bearing in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes.” 132 N.J. at 607 (internal citations and quotations omitted). Our Supreme Court has also directed that the analysis should take into consideration whether the harassment is physically threatening or humiliating. See Green v. Jersey City Bd. of Ed., 177 N.J. 434, 447 (2003). Under the third and fourth prongs, Courts apply a “reasonable woman” standard for evaluating hostile work environment gender harassment claims. Woods- Pirozzi, 290 N.J. Super. at 267. This “reasonable woman, while not hypersensitive, includes women who fall towards the more sensitive side of the spectrum of reasonableness.” Id. at 267, citing Lehmann, 132 N.J. at 613 (emphasis added). The Lehmann Court explained that using an objective, reasonable standard was to better serve the LAD’s purpose of “eliminate[ing] real discrimination and harassment.” 132 N.J. at 612. “An objective reasonableness standard better focuses the court’s attention on the nature and legality of the conduct rather than on the reaction of the 21 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 24 of 53 Trans ID: LCV2024197506 individual plaintiff, which is more relevant to damages.” Ibid. Thus, our Supreme Court has held: When evaluating whether conduct is sufficiently severe or pervasive to create a hostile work environment, we focus on the “harassing conduct …, not its effect on the plaintiff or the work environment.” Lehmann, supra, 132 N.J. at 606. That is because neither “a plaintiff’s subjective response” to the harassment, Id. at 613, nor a defendant’s subjective intent when perpetrating the harassment, Id. at 604-05, is controlling whether an actionable hostile work environment claim exists. Cutler, 196 N.J. at 431. Here, there exists no basis to dismiss any aspect of Plaintiff’s hostile work environment claim under the LAD. B. Plaintiff pleads facts in her Complaint sufficient to satisfy the “severe or pervasive” standard. Here, the allegations in the Complaint give rise to a claim of a hostile work environment based upon the facts as alleged in the Complaint. Defendant focuses its specious argument as to the “severe or pervasive” prong as to the allegations from 2014 and 2015 regarding then-Officer Soltys and the Detective Lieutenant who pursued Plaintiff romantically.4 (Defendant’s Brief at 13-14). Defendant mentions the incidents that occurred in 2022 and 2023 regarding, for example, Plaintiff getting shot with a pellet gun repeatedly by a male officer in the buttocks and leg and the overly sexual comments about Plaintiff’s “boobs” and a male officer making a sexual 4 Plaintiff addresses Defendant’s statute of limitations, laches, and continuing violations arguments regarding these issues at Point II.C., infra. 22 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 25 of 53 Trans ID: LCV2024197506 gesture to Plaintiff (See Defendant’s Brief at 14). However, Defendant does not, and cannot, make a serious argument that those actions were not, given the totality of the circumstances as alleged by Plaintiff, “severe or pervasive”. This Court should reject Defendant’s citation to Anastasia, an unpublished federal case, and Defendant’s accompanying misplaced argument in the context of the 2014 and 2015 facts that overtly sexual remarks and unwanted touchings (which are nonetheless alleged as to the events in 2022 and 2023) are required for a hostile work environment claim under the LAD. (See Defendant’s Brief at 12-14). That is directly contrary to our Supreme Court’s seminal opinion in Lehmann and the New Jersey state case law interpreting it, cited herein. No “federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the state.” Johnson v. Fankell, 520 U.S. 911, 916 (1997).5 As set forth above, Lehmann is the case where our Supreme Court departed from the Title VII legal standard for a hostile work environment claim to frame out a separate standard under the LAD. 132 N.J. at 600-01. In justifying this departure from federal Title VII precedent, our Supreme Court observed as follows: Although the substantive and procedural standards that we have developed under the State’s LAD have been markedly influenced by the federal experience, we have applied the Title VII standards with flexibility and have not hesitated to depart from federal precedent if a 5 This Court should likewise reject Defendant’s citation to Rosati, a Pennsylvania federal district court opinion interpreting Title VII, in improperly seeking to dismiss Plaintiff’s discrimination claims under the LAD. (See Defendant’s Brief at 21-22). 23 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 26 of 53 Trans ID: LCV2024197506 rigid application of its standards is inappropriate under the circumstances. Ibid. (internal quotations omitted). Similarly, in L.W. v. Toms River Regional Schools Board of Ed., 189 N.J. 381 (2007), the New Jersey Supreme Court rejected a defendant’s argument to apply federal standards to the LAD. Therein, the defendant school board argued that the more burdensome federal Title IX standard for school board liability should apply to sexual harassment in the school setting. L.W., 189 N.J. at 404. Our Supreme Court found, “as a matter of state law it would be unfair to apply a more onerous burden on aggrieved students than on aggrieved employees”. Id. at 406. The L.W. Court stated that students are no less protected than their adult counterparts in the workplace. Ibid. In Lehmann our Supreme Court explained that it decided to apply an objective standard to a hostile work environment claims because it “provides flexibility”. 132 N.J. at 612. The Court went on to explain, “much conduct that would have been considered acceptable twenty or thirty years ago would be considered sexual harassment today. Ibid. As community standards evolve, the standard of what a reasonable woman would consider harassment will also evolve.” Ibid. This observation from Lehmann regarding community standards is over thirty years old. Conduct that would have been acceptable when that case was decided in 1993 is now not acceptable in the workplace. In fact, society’s perception of sexual harassment has changed dramatically just over the last few years. In 2017, the 24 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 27 of 53 Trans ID: LCV2024197506 #MeToo movement went viral on social media and in traditional media outlets, where millions of women and men around the world shared stories of abuse. Reframing Sexual Violence: From #MeToo to Time’s Up, Stanford Social Innovation Review, April 17, 2018 (Exhibit 2).6 As a result of this influx of people coming forward with their personal stories of abuse, our community has come to an understanding of the prevalence of sexual harassment and assault. In a recent survey conducted by various nonprofits revealed that 81% of women and 43% of men in the survey reported experiencing sexual harassment and/or assault. The Facts Behind the #MeToo Movement: A National Study on Sexual Harassment and Assault, p. 14, February 2018. (Exhibit 3). Notable to the present matter, a significant number of women (62%) and men (26%) in the survey reported physically aggressive forms of sexual harassment, which included sexual touching in an unwelcome way, being physically followed, and being shown genitals against their will. Ibid. Based upon the community standards we have in 2024, it makes no sense to condone the behavior that is the subject of this litigation. While Defendant flippantly argues that it should somehow avoid liability in this case, Lehmann’s objective standard for assessing sexual harassment claims compels the opposite result. 6See also Breaking the Silence, Harvard Business Review, January 26, 2018 (Equal Employment Opportunity Commissioner acknowledging cultural change due to #MeToo movement) (Exhibit 4). 25 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 28 of 53 Trans ID: LCV2024197506 There is a litany of New Jersey cases applying the LAD hostile work environment standard, which found that the plaintiff demonstrated a hostile work environment based upon significantly less egregious conduct than the facts pled in this Complaint. For instance, in Bredt v. Johnson, 2006 WL 941754 (App. Div. April 2006), a white female plaintiff alleged a reverse discrimination hostile work environment claim. The plaintiff alleged an African American female co-worker made comments regarding the plaintiff’s “black bu2t,” and the same co-worker made comments about how white people got all of the jobs at their employment, and there were not enough black doctors and nurses. 2006 WL 941754, *5 (Exhibit 5). The Bredt plaintiff also pointed to facially neutral harassing conduct. The female African American co-worker told the Caucasian plaintiff that she hated her, called the plaintiff stupid, called her an asshole once a week, and, on one occasion, pushed her finger against the plaintiff’s breast. Id. at *5. Based upon both the race- based and facially non-race-based conduct, the Appellate Division ruled as follows: We are satisfied that when the race-based comments and conduct directed at plaintiff, and the racially insensitive remarks about white people plaintiff was forced to overhear, are considered along with the facially neutral comments and conduct [plaintiff’s female African American co-worker] directed towards plaintiff, a jury could reasonably find that Johnson’s conduct and racially charged comments were directed towards plaintiff because she was white, were sufficiently severe or pervasive to make a reasonable person believe that the conditions of the workplace had been altered, and that the working environment had become hostile or abusive. Id. at *6 (citing Lehmann, 132 N.J. at 603-04) (emphasis added). 26 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 29 of 53 Trans ID: LCV2024197506 As another example that Plaintiff has sufficiently pled facts that satisfy the Lehmann hostile work environment test, the Court should consider the following case decided at the summary judgment stage of the litigation. In Leonard v. Metropolitan Life Ins. Co., 318 N.J. Super. 337, 339-40 (App. Div. 1999), the plaintiff asserted that he was subject to a hostile work environment on the basis of his disability, Type II diabetes. The entirety of the plaintiff’s hostile work environment claim was premised upon two incidents with his supervisor. Leonard, 318 N.J. Super. at 340. First, the plaintiff asked his supervisor about the length of a meeting because he would need to eat lunch. Ibid. When his supervisor replied, “so do I,” plaintiff stated that if he did not eat lunch, he would be in a coma. Ibid. After the meeting, the supervisor said to the plaintiff, “now get your diabetic ass out of here before you die in my office.” Ibid. Second, after the plaintiff informed his supervisor that he would be late to a meeting because he needed to eat lunch, the supervisor stated as follows: I don’t give a f – about you being diabetic and having low blood sugar … We’re going to do things my way or we’re not going to do them. Ibid. The supervisor also asked plaintiff “who he was” in response to missing the meeting and “f--- [you] being diabetic and having to stop for lunch.” Ibid. Based upon these two incidents, the Appellate Division reversed the Trial Court’s granting of summary judgment and remanded the matter for trial. Id. at 345- 27 UNN-L-003025-23 01/23/2024 4:13:28 PM Pg 30 of 53 Trans ID: LCV2024197506 46. In reaching this holding, the Court “reject[ed] defendant’s assertion that the two isolated derogatory comments in question are insufficient to support a cause of action under the LAD.” Id. at 345. As another example where the Court considered both overtly sexual and facially non-sexual harassment, this Court should consider Poiner v. County of Middlesex, 2007 WL 1627033, *1 (App. Div. June 7, 2007)