                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-0236-16T4

DEBORAH UPCHURCH,

       Plaintiff-Appellant,

v.

CITY OF ORANGE TOWNSHIP,
ORANGE POLICE DEPARTMENT,
HAKIM SIMS and WILLIAM
BOGGIER,

     Defendants-Respondents.
________________________________

                 Submitted April 11, 2018 – Decided September 14, 2018

                 Before Judges Alvarez and Nugent.

                 On appeal from Superior Court of New Jersey, Law
                 Division, Essex County, Docket No. L-0788-15.

                 Eldridge T. Hawkins, attorney for appellant.

                 David C. Stanziale, attorney for respondents City of
                 Orange Township and Orange Police Department.

                 Law Office Gina Mendola Longarzo, LLC, attorneys
                 for respondent Hakim Sims (Gina Mendola Longarzo,
                 on the brief).
PER CURIAM

      Plaintiff, Deborah Upchurch, appeals from two summary judgment orders.

The first dismissed her complaint against defendant Hakim Sims. The second

dismissed her complaint against the "City of Orange Township" and the City of

Orange Police Department (the Orange defendants).            We affirm the order

dismissing the case as to Sims but reverse the order dismissing the case as to the

Orange defendants.1

      When she filed her complaint in February 2015, plaintiff was a Lieutenant

in the Orange Police Department, where she had been employed since 1992. The

complaint included seven counts and alleged violations of the New Jersey Law

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, breach of the implied

covenant of good faith and fair dealing, misconduct in Office, "False Light," and

various civil rights violations. Defendants answered and Sims and Boggier filed

counterclaims. Plaintiff filed an answer to the Boggier counterclaim and an

answer to the Sims counterclaim.2 The parties engaged in discovery and the


1
   The record does not address whether the Orange Police Department is a
separate legal entity that can sue and be sued.
2
  Plaintiff also filed a verified complaint in lieu of prerogative writs against the
City of Orange, Hakim Sims, and the State of New Jersey, challenging an
internal affairs investigation and written reprimand. The complaint was


                                                                            A-0236-16T4
                                         2
Orange defendants and Sims filed summary judgment motions. 3 The trial court

denied plaintiff's summary judgment motion, granted defendants' summary

judgment motions, and dismissed the complaint with prejudice. This appeal

followed.

      On appeal, plaintiff argues the following points:

            POINT I
            [THE TRIAL COURT'S] STATEMENTS OF FACTS
            ARE INCORRECT, THUSLY LEADING TO
            INCORRECT CONCLUSIONS OF LAW.

            POINT II
            ORANGE DEFENDANTS ARE NOT ENTITLED TO
            SUMMARY JUDGMENT UNDER COUNTS THREE
            AND FIVE.

            POINT III
            THERE IS NO LEGAL OR FACTUAL BASIS TO
            DISMISS THE NJLAD COMPLAINT AGAINST THE
            CITY OF ORANGE PREDICATED UPON AN
            ALLEGED LACK OF KNOWLEDGE OR NOTICE.

            POINT IV
            THE CITY OF ORANGE TOWNSHIP'S FAILURE TO
            SERVE THE MUNICIPAL ADMINISTRATIVE
            CHARGES UNTIL AFTER THE EXPIRATION OF

dismissed with prejudice and plaintiff's motion for reconsideration denied. We
affirmed the orders dismissing the complaint and denying reconsideration.
Upchurch v. City of Orange Twp., No. A-4921-14 (App. Div. June 12, 2017).
3
  The appellate record does not include the pleadings disposing of plaintiff's
complaint against Boggier and Boggier's counterclaim.


                                                                       A-0236-16T4
                                       3
            45-DAYS FROM DATE OF THE CITY'S
            KNOWLEDGE OF SAID ALLEGED INFRACTION
            RESULTS IN SAID CHARGES BEING UNLAWFUL
            PURSUANT TO N.J.S.A. 40A:14-147.

            POINT V
            THE ACTION AND INACTIONS OF BOTH THE
            STATE OF NEW JERSEY AND MUNICIPALITY OF
            ORANGE, TOGETHER VIOLATED PLAINTIFF'S
            CONSTITUTIONAL RIGHTS.

            POINT VI
            THE TRIAL COURT ABUSED ITS DISCRETION IN
            FINDING THAT THERE WAS A PROCEDURE IN
            PLACE FOR ADMINISTRATIVE REVIEW OF THE
            MINOR    DISCIPLINARY    ACTION   TAKEN
            AGAINST    THE   PLAINTIFF   WHERE   NO
            STATUTORY PROVISION WAS IN PLACE AND
            NEITHER THE DOA LOCAL CONTRACT NOR THE
            DEFENDANTS PROVIDED ANY ALTERNATIVE
            PROCEDURES.

            POINT VII
            JUDGE CAREY'S FAILURE TO RECONSIDER AND
            REVERSE HIS DECISION WERE A MANIFEST
            DENIAL OF JUSTICE AND ABUSE OF
            DISCRETION REQUIRING REVERSAL.

            POINT VIII
            PLAINTIFF DEMONSTRATES SHE WAS DENIED
            DUE PROCESS, EQUAL PROTECTION, FREEDOM
            OF SPEECH, LIGHT [SIC] TO PROPERTY, etc.,
            AND WAS CAST IN A FALSE LIGHT.

      With one exception, plaintiff's arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).   The exception is


                                                                       A-0236-16T4
                                       4
defendant's argument in Point III that her cause of action for supervisory sexual

harassment in violation of the LAD should not have been dismissed on summary

judgment. As to that argument, the trial court found the following facts:4

                  Plaintiff is currently a lieutenant with the
            department, and, has been employed with the police
            department, and, the City since 1992. At the time, the
            events that gave rise to the suit, plaintiff was charged
            with performing mainly administrative tasks for the
            department. At all times relevant, Sims was the
            department's Director of Police, and, plaintiff's
            supervisor. Plaintiff alleges that beginning in February
            of 2013 or 2014, Sims began making unwelcome sexual
            advances towards her both in the workplace, and,
            through text and picture messages sent to her mobile
            phone.

                  When plaintiff rebuffed those advan - advances,
            she alleges Sims treated her differently from the male
            members of the department, retaliated against her by
            transferring her from an administrative role to patrol,
            and, commenced Internal Affairs investigations against
            her, which now, allegedly, appear in her personnel file.
                  While plaintiff may have shared her concerns
            about Sims' behavior with another member of the
            department, identified only as a "Captain Ssouey, S-S-
            O-U-E-Y", it is undisputed that plaintiff did not


4
  Defendants have not asserted the trial court's findings are unsupported by the
motion record. In fact, the Orange defendants cite to the trial court's opinion as
support for significant portions of the statement of facts in their appellate brief.
Although plaintiff apparently disagrees with some of the trial court's findings,
the disagreement is based in significant part on the transcript of plaintiff's
deposition, which plaintiff has not included in the appellate record. R. 2:6-
1(a)(1)(I).
                                                                            A-0236-16T4
                                         5
            otherwise file, or, make any formal complaint within
            the department about Sims' conduct.

                  In response to Sims' conduct, plaintiff filed a
            seven count complaint against the City defendants, and,
            Sims.

      In granting summary judgment to the Orange defendants, the trial court

first noted their argument: "With respect to those counts that rely on the LAD

as a basis for relief, the [Orange] defendants argue they're entitled to su mmary

judgment because there's no evidence they had knowledge of Sims' alleged

misconduct." In its legal conclusions, the trial court stated:

                   With regard to the law against discrimination, or
            LAD count, plaintiffs failed to offer any competent
            evidence that if considered by a jury would permit a
            jury to find in plaintiff's favor on the plaintiff's LAD
            claims. Typically, only an employer may be held liable
            under LAD. See N.J.S.A. 10:5-12a. An employer can
            only be held liable for the acts of its employees when
            the employer, "[c]ontributed to the harm through
            negligence, intent, or, apparent authorization of the
            harassing conduct. Or, if the supervisor was aided in
            the commission of the harassment by the agency
            relationship." That's Aguas v. State, 220 N.J. 494, a
            two – 2015 Supreme Court case.

                   For an employer's agent to be held personally
            liable under the LAD, the indivil – individual must aid
            or abet the unlawful conduct which requires the
            individual engage in, "Active and purposeful conduct,"
            to aid an employer to, inter alia, "[p]erform a wrongful
            act." That's Cicchetti v. The Morris County Sheriff's
            Office, 194 N.J. 563, a 2008 case which cites, and,

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                                        6
            quotes Tarr v. Ciasulli, 181 N.J. 70, a Supreme Court
            case from 2004.

                  In this case, there's simply no evidence in the
            record, beyond plaintiff's bare assertions, and,
            suspicions in her deposition testimony that the City
            defendants had knowledge of Sims' alleged conduct.
            And, no evidence that plaintiff was treated differently
            from any similarly situated male. Those bare assertions,
            and, suspicions are not sufficient evidence to defeat a
            motion for summary judgment.

                   Here, since there's no evidence that the City
            defendants had knowledge of Sims' alleged acts, they
            could not have negligently, or, intentionally contributed
            to, or, authorized Sims' alleged acts. There's, therefore,
            no evidence that would permit a jury to conclude that
            the City defendants could be held liable for them.

                  Since there's no evidence the City defendants
            could be held liable for a wrongful act under the LAD,
            and, since Sims is not an employer within the meaning
            of LAD, Sims cannot be held liable either directly, or,
            as an aider, or, abettor because there's no evidence that
            his employer, the City defendants, performed a
            wrongful act under the LAD. See Cicchetti at 594.

                  Since a rational fact finder could not find in favor
            of the plaintiff with respect to her LAD count on the
            basis of the available evidence, defendants are entitled
            to summary judgment on plaintiff's first count.

      Significantly, the trial court never mentioned whether the Orange

defendants had a policy in place to prevent sexual harassment. It does not appear




                                                                         A-0236-16T4
                                        7
from the appellate record the Orange defendants included or argued such a

policy in support of their summary judgment motion. That flaw is fatal.

      Appellate courts "review[] an order granting summary judgment in

accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217

N.J. 22, 38 (2014) (citations omitted). We "review the competent evidential

materials submitted by the parties to identify whether there are genuine issues

of material fact and, if not, whether the moving party is entitled to summary

judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)). A trial court's determination that

a party is entitled to summary judgment as a matter of law is not entitled to any

"special deference," and is subject to de novo review. Cypress Point Condo.

Ass'n v. Adria Towers, LLC, 226 N.J. 403, 415 (2016) (citation omitted).

      Here, the trial court granted the Orange defendants summary judgment on

the sole ground they were unaware their Director of Police was sexually

harassing a supervisor. The Orange defendants assert on appeal this legal

conclusion was correct. We disagree.

      The elements of a hostile work environment sexual harassment claim are

the harassment “(1) would not have occurred but for the employee's gender; and

it was (2) severe or pervasive enough to make a (3) reasonable woman believe


                                                                          A-0236-16T4
                                       8
that (4) the conditions of employment are altered and the working environment

is hostile or abusive.” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 603-04

(1993).

      Under the Restatement (Second) of Agency § 219(2) (Restatement), a

plaintiff may assert two theories of liability against an employer based on a

supervisor's sexual harassment. "The first is a direct cause of action against the

employer for negligence or recklessness under Restatement § 219(2)(b)." Aguas

v. State, 220 N.J. 494, 512 (2015) (citing Gaines v. Bellino, 173 N.J. 301, 312–

14 (2002)). "The second is a claim for vicarious liability under Restatement §

219(2)(d)." Aguas, 220 N.J. at 512 (citing Gaines, 173 N.J. at 312-14)).

      "The negligence standard imposes on [a plaintiff] the burden to prove that

the [defendant] failed to exercise due care with respect to sexual harassment in

the workplace, that its breach of the duty of due care caused the plaintiff's harm,

and that she sustained damages." Ibid. (citing Komlodi v. Picciano, 217 N.J.

387, 409 (2014)). When a defendant challenges the sufficiency of a plaintiff's

proofs of a Restatement 219(2)(b) cause of action against an employer, the court

deciding a dispositive motion or the jury considering the claim should consider

five factors:

                (1) formal policies prohibiting harassment in the
                workplace; (2) complaint structures for employees' use,

                                                                           A-0236-16T4
                                          9
            both formal and informal in nature; (3) anti-harassment
            training, which must be mandatory for supervisors and
            managers, and must be available to all employees of the
            organization; (4) the existence of effective sensing or
            monitoring mechanisms to check the trustworthiness of
            the policies and complaint structures; and (5) an
            unequivocal commitment from the highest levels of the
            employer that harassment would not be tolerated, and
            demonstration of that policy commitment by consistent
            practice.

            [Aguas, 220 N.J. at 513 (citing Gaines, 173 N.J. 313).]

      Concurrently or alternatively, a plaintiff may assert a Restatement §

219(2)(d) claim. "[T]he plaintiff has the initial burden of presenting a prima

facie hostile work environment claim." Id. at 524.

            If no tangible employment action has been taken
            against the plaintiff, the defendant employer may assert
            [a] two-pronged affirmative defense . . . . To establish
            that defense, the defendant has the burden to prove, by
            a preponderance of the evidence, . . . that the employer
            exercised reasonable care to prevent and to correct
            promptly sexually harassing behavior[] and . . . the
            plaintiff employee unreasonably failed to take
            advantage of preventive or corrective opportunities
            provided by the employer or to otherwise avoid harm.

            [ Ibid. (citing Burlington Industries, Inc. v. Ellerth,
            524 U.S. 742, 765 (1998) and Faragher v. City of Boca
            Raton, 524 U.S. 775, 807 (1998)).]


The employee may rebut the elements of the affirmative defense. Ibid.



                                                                        A-0236-16T4
                                      10
      The defense is not available in cases where the supervisor's harassment

has resulted in an adverse employment action, such as "undesirable

reassignment," nor will the defense provide "protection to an employer whose

sexual harassment policy fails to provide 'meaningful and effective policies and

procedures for employees to use in response to harassment.'” Id. at 522 (citing

Gaines, 173 N.J. at 317).

      Contrary to the trial court's legal conclusion and the Orange defendants'

arguments, "we didn't know and plaintiff didn't tell us" is not a defense. If

plaintiff was, as she claimed, reassigned to a less desirable position because she

refused Sims' sexual advances, the Orange defendants have no affirmative

defense. If, contrary to plaintiff's allegations, the Orange defendants can prove

by a preponderance of the evidence they exercised reasonable care to prevent

and to correct promptly Sims' sexually harassing behavior, and plaintiff

unreasonably failed to take advantage of preventive or corrective opportun ities

provided by the Orange defendants, they might prevail at trial. To prevail on a

summary judgment motion, they would be required to demonstrate there are no

factual disputes concerning the fact-sensitive issues surrounding their

affirmative defense. Simply asserting they did not know their highest ranking

officer was sexually harassing a subordinate is no defense.


                                                                          A-0236-16T4
                                       11
      We express no opinion on whether plaintiff established a prima facie case

of employer liability under either Restatement §219(2)(b) or (d) or whether the

Orange defendants can establish a defense. Such decisions must rest on a

properly developed motion record or a jury verdict. The trial court granted

summary judgment on plaintiff's supervisory sexual harassment claim on the

narrow ground the Orange defendants were unaware of the harassment. We hold

only that the trial court's narrow legal conclusion was incorrect.

      Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.




                                                                       A-0236-16T4
                                       12
