                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-3252-12T1
BRIAN DUNKLEY,
                                         APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                                June 24, 2015
v.
                                              APPELLATE DIVISION
S. CORALUZZO PETROLEUM
TRANSPORTERS,

     Defendant-Respondent.
_______________________________

          Argued June 4, 2014 - Decided September 16, 2014
          Remanded by Supreme Court March 16, 2015
          Reargued telephonically May 18, 2015 -
          Decided June 24, 2015

          Before Judges Lihotz, Maven and Hoffman.

          On appeal from the Superior Court of New
          Jersey,   Law  Division, Atlantic County,
          Docket No. L-6863-10.

          Richard E. Yaskin argued the cause for
          appellant (Mr. Yaskin and William Riback,
          attorneys; Mr. Yaskin, on the brief).

          Erin   L.  Peters   argued   the  cause for
          respondent (Golden, Rothschild, Spagnola,
          Lundell, Boylan & Garubo, P.C., attorneys;
          Daniel B. McMeen, of counsel and on the
          brief; Ms. Peters, on the brief).

PER CURIAM

     On March 16, 2015, the Supreme Court remanded this matter,

in light of the recent opinion, Aguas v. State, 220 N.J. 494

(2015).      Previously,    we   considered    the    summary      judgment
dismissal       of    plaintiff     Brian     Dunkley's      complaint       against      his

employer,        defendant        S.     Coraluzzo         Petroleum        Transporters.

Plaintiff's          complaint    alleged      violations        of   the    Law    Against

Discrimination, N.J.S.A. 10:5-1 to -49 (LAD).                             Dunkley v. S.

Coraluzzo Petroleum Transporters, 437 N.J. Super. 366, 370-73

(2014), remanded, 221 N.J. 217 (2015).                     Plaintiff claimed he was

the victim of racial discrimination by Richard Harrington, an

employee assigned to train him.                    Ibid.   Plaintiff also "insisted

he endured negative consequences after reporting Harrington's

conduct,"        which     he     maintained          ultimately         lead      to     his

resignation.           Id. at 372.           Plaintiff      asserted defendant was

liable under the LAD for negligence and was vicariously liable

by allowing "conduct amounting to a hostile work environment

.   .   .   ,    which     caused      his    constructive        discharge"        because

Harrington was his supervisor.                Id. at 373.

        We affirmed the summary judgment dismissal of plaintiff's

complaint,       determining      defendant         was    not   liable     because     once

plaintiff informed his supervisors he was experiencing racial

discrimination, they immediately took action in accordance with

defendant's          "properly      defined"         anti-harassment          and       anti-

discrimination          policies,      to    "protect       plaintiff       from    further

discrimination."            Id.     at      381.       "[T]he     harm      was    remedied

immediately          and   effectively[,]"           as     plaintiff       admitted       he




                                              2                                     A-3252-12T1
experienced      no     further         discriminatory         interactions       or

harassment.       Id.   at   383.       As   to   plaintiff's     assertions       of

"perceived      ostracism     by      co-workers,"        we    concluded        such

allegations were insufficient to support claims for constructive

discharge or hostile work environment under the LAD.                        Id. at

382-83.

       On remand, the Court ordered we address, "at a minimum,"

two specific issues:

             (1) [W]hether there is a genuine issue of
             material fact with respect to plaintiff's
             direct claim for negligence under the Law
             Against Discrimination (LAD), N.J.S.A. 10:5-
             1 to -49; and

             (2) [W]hether there is a genuine issue of
             material fact with respect to plaintiff's
             claim   for  vicarious   liability for  the
             actions of a supervisor under the LAD based
             on a hostile work environment.

             [Dunkley    v.   S.    Coraluzzo    Petroleum
             Transporters, 221 N.J. 217 (2015).]

       We permitted limited briefing and conducted a telephonic

argument on these issues.           In light of the Court's holding in

Aguas, plaintiff maintains summary judgment must be vacated and

the    matter   remanded     to   the    trial    court   for    review    of     the

materially      disputed      facts      surrounding       whether      defendant

adequately      acted   to    prevent        discrimination,      and     also     to

determine whether Harrington was his supervisor at the time he

made   the   racially-charged       remarks.       Defendant      disagrees       and



                                         3                                 A-3252-12T1
asserts plaintiff's proofs fail to sustain a claim for either

defendant's direct negligence or vicarious liability because its

policies were published and properly implemented to terminate

the offending conduct.

       We have considered plaintiff's arguments under the Court's

guidance set forth in Aguas and conclude plaintiff has presented

no factual support showing defendant's conduct was negligent or

that it ignored its affirmative duty to prevent discrimination.

Defendant     adopted          well-defined           policies        to         prevent

discrimination     in    its   workplace,         trained   its   employees,         and,

when informed of harassing discriminatory behavior, implemented

procedures to curb the conduct.                 Further, we reject plaintiff's

assertions    of    vicarious        liability       for    alleged     supervisory

harassment.        The   facts       show       defendant   enforced       its      anti-

harassment policy and plaintiff suffered "no employment action."

Aquas, supra, 220 N.J. at 523-24.                Accordingly, we affirm.

       Our review begins with a discussion of the Court's recent

decision.     In    Aguas,     the    plaintiff       asserted    two      LAD    claims

against her employer, the State of New Jersey, alleging her

supervisors subjected her to sexual harassment in the workplace,

creating a hostile work environment.                 Aguas, supra, 220 N.J. at

505.    These claims included a direct claim for negligence and a

claim for vicarious liability.                  Id. at 506.   The plaintiff had




                                            4                                    A-3252-12T1
verbally     reported         her   allegations    to    supervisors,     but     never

filed a written complaint pursuant to the State's written anti-

harassment policy, a copy of which the plaintiff admits she

received.         Id. at 504.          The trial court found the plaintiff

presented     a       prima   facie   hostile     work    environment     claim,     but

granted the State's motion for summary judgment, because the

State established an affirmative defense by showing an effective

anti-harassment policy was in place.                     Id. at 506.      The policy

delineated        a    reporting      procedure    through    the     State's     Equal

Employment Division, which plaintiff failed to follow.                     Ibid.

       On certification to the Supreme Court, the plaintiff argued

the    affirmative        defense     was   unavailable      in   cases   of    sexual

harassment by a supervisor, under the LAD.                        Id. at 507.        The

Supreme      Court      examined      the   plaintiff's      vicarious     liability

sexual harassment claim and the defendant's asserted defenses to

the alleged liability.              Id. at 499.

       Initially adopted in Lehmann v. Toys 'R' Us, Inc., 132 N.J.

587,   592    (1993),         the   Court   recognized     employer    liability      is

exclusively governed by principles of agency.                     Aguas, supra, 200

N.J. at 511.           An employer is liable for torts committed by an

employee "while acting in the scope of their employment," as

well as those committed by employees, even when acting outside

the scope of their employment, if:




                                             5                                 A-3252-12T1
            (a) the [employer] intended the conduct or
            the consequences, or

            (b) the    [employer]        was       negligent     or
            reckless, or

            (c) the conduct violated           a    non-delegable
            duty of the [employer], or

            (d) the [employee] purported to act or to
            speak on behalf of the principal and there
            was reliance upon apparent authority, or he
            was aided in accomplishing the tort by the
            existence of the agency relation.

            [Id. at 511 (quoting Restatement § 219).]

See also Lehmann, supra, 132 N.J. at 619.

      The Court observed "two primary categories of claims" arise

from the alleged sexual harassment of employees: "a direct cause

of action against the employer for negligence or recklessness

under Restatement § 219(2)(b) . . . [and] vicarious liability

under Restatement § 219(2)(d)."          Aguas, supra, 200 N.J. at 512.

"[O]ften discussed in tandem," the Court distinguished the two

types of claims as "analytically distinct from and independent

of one another" and, therefore, each clam "must be addressed

separately."    Ibid.

      Addressing the plaintiff's claim for the direct action of

negligence or recklessness, the Court noted a plaintiff must

prove an employer "failed to exercise due care with respect to

sexual harassment in the workplace, that its breach of the duty

of   care   caused   the   plaintiff's   harm,      and   that   [he   or]   she



                                    6                                  A-3252-12T1
sustained damaged."           Ibid.        In defense to allegations of an

employer's direct liability for negligently creating a sexually

harassing     hostile   work       environment,      the    Court      recognized     "an

employer's implementation and enforcement of an effective anti-

harassment     policy,"       as     "a    critical       factor       in   determining

negligence      and     recklessness            claims     under       Restatement      §

219(2)(b)."1    Id. at 499.

      Next,    the    Court        addressed      the     plaintiff's       claim     for

vicarious liability, noting:

            [A]n employee may assert that the employer
            is vicariously liable for sexual harassment
            committed by its employee because the sexual
            harasser purported to act on the employer's
            behalf and "there was reliance upon [his or
            her] apparent authority," or because the
            harasser   "was  aided   in   [his  or   her
            misconduct] by the existence of an agency
            relation[ship]" with his or her employer,
            alleging them.

            [Id.   at  514   (alterations  in   original)
            (quoting Restatement § 219(2)(d)).]

Although Lehmann and its progeny never expressly "address[ed]

the   analytical      framework          under    which     an     employer's       anti-

harassment     policy     may       be     considered       in     a    hostile     work

1
     Restatement (Second) of Agency has been superseded by
Restatement (Third) of Agency (2006).     Section 219 of the
Restatement (Second) of Agency, along with §§ 220, 228, 229,
230, 231, 232, 233, 234, 235, 236, 237 and 267 have been
subsumed and consolidated in Restatement (Third) of Agency
§ 7.07.




                                            7                                  A-3252-12T1
environment harassment claim involving a supervisor," ibid., the

Court   noted    "that     [same]     jurisprudence         strongly    supports    the

availability of an affirmative defense, based on the employer's

creation and enforcement of an effective policy against sexual

harassment."      Id. at 514, 515-17.

       The Court adopted what is known as the Ellerth/Faragher

test    for    defending      claims    alleging       vicarious       liability    for

supervisory      harassment      under     Restatement           §   219(2)(b),    thus

allowing      employers    to   plead,     as    an    affirmative      defense,    the

adoption and enforcement of an effective policy against sexual

harassment,      so    long     as   the   employee         suffered     no   tangible

employment action.          Id. at 523-24 (citing Burlington Indus. v.

Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d

633, 655 (1998) and Faragher v. City of Boca Raton, 524 U.S.

775, 807-08, 118 S. Ct. 2275, 2292-93, 141 L. Ed. 2d 662, 689

(1998)).

       We now turn to our examination of plaintiff's complaint.

In   count    one,    he   asserted    a   violation        of   the   LAD,   alleging

defendant "failed to take action" when informed of the "repeated

discriminatory        racial    remarks"        made   by    Harrington,      claiming

"[d]espite the complaint made by [p]laintiff, [defendant] either

took no action to correct or prevent the racial discrimination

and harassment in the workplace or took steps which were not




                                           8                                  A-3252-12T1
reasonably calculated to end the harassment."                       Count two alleged

defendant "failed to remediate a course of conduct constituting

racial harassment, discriminatory intimidation, ridicule[,] and

insult   of    a    racial    nature,     pervasive          hostility,"     creating    a

"hostile      and     offensive       work       environment       that     intimidated,

frightened[,] and offended [p]laintiff," as an African-American.

Plaintiff also maintained defendant "delegated the authority to

control the work environment to employees and agents who failed

to remediate any claims of racial discrimination or hostility in

the work environment," causing his constructive discharge, as

set forth in count three.

    During         oral   argument,       plaintiff          insisted     defendant    was

negligent in enforcing its anti-discrimination policy because it

did not discipline or fire Harrington and management employees

admitted a lack of knowledge of procedural aspects of the policy

directed to prevent racial and other discrimination.                            Further,

plaintiff      asserted        defendant         was        vicariously     liable     for

Harrington's racially harassing conduct as he held defendant's

apparent      authority       while    serving         as     plaintiff's     supervisor

during the two-week training period.

    Aquas       provides       a   framework           for    analyzing      claims    and

defenses      offered     regarding       sexual         harassment        hostile    work

environment         claims.        With      respect         to   direct    claims     for




                                             9                                  A-3252-12T1
negligence or recklessness, the Court's discussion, anchored in

Restatement § 219(2)(b), applies generally to employer liability

for the torts of employees, for any type of discrimination.             See

id. at 499 ("[A]n employer's implementation and enforcement of

an effective anti-harassment policy, or its failure to maintain

such a policy, is a critical factor in determining negligence

and recklessness claims under Restatement § 219(2)(b).").                 We

also conclude the Court's analysis of an employer's vicarious

liability is limited solely to sexual harassment LAD claims.

Rather, the principles can be tailored and adopted to address

allegations of other discriminatory conduct.

    To   prevail    on    a   direct     claim   alleging    defendant's

negligence,   plaintiff   bears   the   burden   to   show   a   defendant

negligently created a discriminatory work environment by failing

to exercise due care with respect to racial discrimination in

the workplace, by breaching the duty of due care, which caused

plaintiff harm.    See id. at 512.      To defend against such a claim

as discussed in Aguas, defendant may prove:

         [T]he existence of: (1) formal policies
         prohibiting harassment in the workplace; (2)
         complaint structures for employees' use,
         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



                                  10                              A-3252-12T1
             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.

             [Id. at 513 (quoting Gaines v. Bellino, 173
             N.J. 301, 313 (2002)).]

      An employer is not required to meet each and every one of

these     factors.        Rather,       it    is     a     balance       of    facts        and

circumstances      to     determine     whether          the    employer       shows      "the

existence of effective preventative mechanisms," Gaines, supra,

173   N.J.    at   313,   designed      to    comply      with     the   LAD's      defined

purpose "to root out the cancer of discrimination."                                Cicchetti

v. Morris Cnty. Sherriff's Office, 194 N.J. 563, 588 (2008).

See   N.J.S.A.     10:5-12(a).          Succinctly,            "'the   efficacy        of   an

employer's remedial program is highly pertinent to an employer's

defense'" against liability under the LAD.                         Aguas, supra, 220

N.J. at 513 (brackets omitted) (quoting Gaines, supra, 173 N.J.

at 314).

      Although plaintiff concedes defendant had a formal anti-

harassment      policy     in     place,      and     acknowledges            he    received

specific training on the policy with other employees, plaintiff

argues defendant failed to sufficiently satisfy the remaining

Gaines    factors.        He    suggested         management      employees         did     not

receive      "civil     rights"     training,        there        were    no       effective

monitoring      mechanisms        "to   check       the        effectiveness        of      the



                                             11                                     A-3252-12T1
policies and complaint structures," and his supervisor's conduct

did not demonstrate "an unequivocal commitment" that harassment

would not be tolerated.

       To support his argument, plaintiff isolates statements made

in    depositions    by   some     of    defendant's         management         employees.

Plaintiff asserts this testimony creates a material dispute of

fact regarding the effectiveness of the anti-harassment policy

and    defendant's    commitment         to        combat   racial    discrimination,

which must be assessed by a jury.

       Plaintiff has chosen to edit the deposition transcripts by

including only portions that purportedly contain statements he

construes as favorable, depriving this court of full review of

the context in which all statements were made.                       Nevertheless, we

have examined each of the statements identified by plaintiff and

viewed the evidence in a light most favorable to him.                            Davis v.

Brickman    Landscaping,       Ltd.,      219       N.J.    395,   406    (2014).        We

conclude    the    record    does       not    support      plaintiff's         claims    of

materially disputed facts regarding defendant's implementation

and enforcement of its anti-harassment policy.

       First,     management       employees          did    state       they    received

specific    training        that    addressed          discrimination.             Elwood

Sickler, plaintiff's direct supervisor, testified he, along with

defendant's       other     managers,          attended      sensitivity         training




                                              12                                  A-3252-12T1
presented by an attorney, but was unsure of the exact date,

stating he believed it was in 2010.                 He also received racial

discrimination      training    in   his    prior   position   in   the    United

States    Marine    Corps.      Sickler     mistakenly    thought   the      Human

Resources Department (HR), which was principally charged with

responding to discrimination complaints, was not in place until

sometime in 2011, but also maintained terminal managers were

supervising drivers, such as plaintiff.                  The record actually

proves defendant's HR manager was hired in October 2009.

       Second, the record includes the employee handbook.                       One

section      entitled        "Policy        Prohibiting        Harassment          &

Discrimination" specifically instructs:              "Any employee who has a

complaint regarding harassment or discrimination must report the

matter to their manager.         If that person is not available, or if

you believe it would be inappropriate to contact that person,

contact the Human Resources Department."               The handbook contains

a list of telephone numbers, including that of HR.

       Third, plaintiff never made a complaint to his supervisor

or the HR manager, as instructed by the written policy in the

handbook.        Harrington's discriminatory conduct came to light

only   because     Sickler   noticed    plaintiff     failed   to   report      for

work, called him directly, and arranged for plaintiff to explain

what   was   happening.        The   next   day,    Sickler,   accompanied        by




                                       13                                 A-3252-12T1
Thomas Spargue, defendant's safety coordinator, and Steve Cohen,

defendant's      regional     safety      manager,      met   with      plaintiff      to

review    and    address    his    concerns.          Dunkley,    supra,       437   N.J.

Super. at 372.          At that meeting, for the first time, managerial

employees learned of plaintiff's experiences and his expressed

concerns    Harrington      was    "a    racist."       Prior     to     the    meeting,

Sickler    had    not    received       complaints     regarding        Harrington      or

other    employees      charging    them    with      racially-biased          behavior.

Sickler made it clear defendant's policy was "there is no race.

. . .      We are all employees."                 He arranged for plaintiff's

training    to    be     guided    by     another      employee,       discussed      the

situation with Sprague, and also met with Harrington.

    Finally, the record contains plaintiff's acknowledgement he

had no difficulty with his new trainer and, in fact the two "got

along great."          Further, plaintiff never saw Harrington again;

did not experience any further racially-discriminatory conduct;

and was not again exposed to racial harassment.                         Despite these

facts,     plaintiff        criticized          the    extent      of     defendant's

investigation, arguing notes should have been taken during his

meeting    with    managers,       other        individuals      should    have      been

interviewed, and Harrington should have been fired.                            Plaintiff

also recounted the work atmosphere following the meeting and his

placement with a new trainer, saying things were "different."




                                           14                                   A-3252-12T1
He stated other employees "would shy away" and "nobody would

even     talk        to     [him],"       making        him    feel     "uncomfortable"       and

preventing him from "getting a fresh start."

       Granting all reasonable inferences to plaintiff's evidence,

we reject the suggestion Gaines, as adopted by Aguas, requires

the jury to assess the degree of effectiveness of defendant's

response        to        plaintiff's      complaints           when     the   discriminatory

conduct     admittedly              was     addressed           and     rectified.        Aguas

emphasized the LAD does not impose "strict liability."                                   Aguas,

supra, 220 N.J. at 510-11.                  We also disagree the jury may assess

or even consider whether an employer's decision not to terminate

an    offending           employee      denotes         the     discrimination       policy    as

ineffective.

       Here,     the        facts    support       the        Gaines   factors.      Defendant

proved     it        adopted        a     formal        policy        prohibiting    workplace

harassment and discrimination.                          Formal training was conducted,

as evinced by the deposition testimony of plaintiff, as well as

Sickler.        Viewing the events that transpired here, we determine

defendant's commitment to prohibit discrimination was not mere

lip    service.              Defendant's       managers          were     proactive:       they

initiated contact with plaintiff before he uttered a complaint,

and thereafter swiftly responded by investigating his complaints




                                                   15                                  A-3252-12T1
and    implementing       procedures    to   assure      plaintiff         no     longer

experienced discriminatory treatment.

       Moreover,     defendant's       anti-harassment        policy            included

elements of both formal and informal procedures to receive and

address     complaints.        See   Gaines,      supra,    173       N.J.      at   313.

Aggrieved employees were instructed to report untoward conduct

to    either     "their   manager"     or,   if   necessary,          HR   personnel.

Importantly,      management    initiated      contact     with       plaintiff       and

scheduled a meeting; defendant's formal complaint mechanism was

not engaged.

       We concede the record is sparse as to whether monitoring

mechanisms were in existence to check the "effectiveness of the

policies    and    complaint    structures."        In     part,      this      resulted
                                                               2
because plaintiff did not initiate a complaint.                       However, once

managers were made aware of the situation,                    they took action

pursuant to defendant's anti-harassment policy and plaintiff was

no longer victimized.

       As   to    whether     plaintiff      demonstrated         a    constructive

discharge, his testimony pointed to no tangible action showing

2
     It is also worth noting the record contains information
discussing a prior instance of alleged sexual harassment
experienced by one of defendant's employees. The discussion by
the managerial employees regarding this incident reflected the
initiation and implementation of defendant's anti-harassment
policy.




                                        16                                      A-3252-12T1
retaliatory acts by defendant.3         Rather, he generally related his

sense people were less interactive and more distant with him.

We repeat our originally expressed comments:

          We   also   conclude   plaintiff's   perceived
          ostracism by co-workers fails to support his
          claim of hostile work environment.         See
          Cokus v. Bristol Myers Squibb Co., 362 N.J.
          Super. 366, 382-83 (Law Div.2002) ("The fact
          that   [the    plaintiff's]   co-workers   and
          superiors chose to limit their contact with
          [him] to business only and otherwise ignored
          [him], stared/glared at [him] when they
          walked by [him], and, even as plaintiff
          believed—talked about [him] behind closed
          doors," fails to create a hostile work
          environment.), aff'd 362 N.J. Super. 245,
          246-47 (App. Div.), certif. denied, 178 N.J.
          32 (2003). The Supreme Court has explained,
          the LAD does not create a "sort of civility
          code for the workplace[.]"       Battaglia v.
          United Parcel Serv., Inc., 214 N.J. 518, 549
          (2013). Rather, it advances "[f]reedom from
          discrimination."     Id. at 546.      Employee
          discourtesy and rudeness should not be
          confused with employee harassment. Further,
          an "unhappy" workplace does not equate to a
          hostile work environment under the LAD.

          [Dunkley, supra, 437 N.J. Super. at 382.]

     In   summary,      defendant,   as   plaintiff's     employer,     acted

expeditiously     and     effectively     to   prevent     further    racial

discrimination.         No   prior   instances    of     racial   slurs     or

harassment were known and when plaintiff's complaint surfaced,

3
     Plaintiff filed a certification in opposition to summary
judgment which included claims not disclosed in his deposition.
We could not evaluate these statements.    However, the names of
defendant's alleged management employees was left blank.



                                     17                              A-3252-12T1
it was immediately addressed.         "More important, plaintiff's own

report [was] he did not experience any further discriminatory

harassment and suffered no change in his position, duties or

compensation . . . ."        Id. at 381-82.

      We   decline   plaintiff's     invitation       to   allow   a   jury    to

evaluate its view of whether defendant's policy could be more

effective or to assess defendant's decision not to fire the

offending employee. It is neither the role of the jury nor the work

of courts to intrude so deeply into an employer's operational

decisions.      Plaintiff never saw Harrington again, which might

suggest he was transferred to a different site.              Plaintiff's own

words demonstrate defendant's policy, as implemented, worked and he

completed his training without encountering further derogatory

or discriminatory treatment.          The legislative objective of the

LAD   is   to   assure   a   commitment    to   end   discrimination    in    the

workplace.      See Fuchilla v. Layman, 109 N.J. 319, 334 (1988).

The facts here show that was accomplished.

      Taken as a whole, this record reflects defendant did not

breach its duty or ignore the serious legal responsibilities it

owes its employees to eradicate racial discrimination in its

workplace.       We conclude plaintiff has not identified factual

support to show the elements of a negligence action                    against

defendant.




                                      18                               A-3252-12T1
      Next,    we     examine   the     record      as   to   whether    the    facts

presented      suggest      defendant       is     vicariously     liable      for    a

supervisor's harassment.            In Aguas, the Court identified four

questions a plaintiff must affirmatively demonstrate:

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

            2.   Did   the          supervisor        exercise     that
            authority?

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

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

            [Aguas, supra, 220 N.J. at 514 (alterations
            in original) (quoting Lehman, supra, 132
            N.J. at 620).]

See also Restatement § 219(2)(d).4

      In Aguas, the Court noted it never explicitly considered

the   impact     of    an    employer's          anti-harassment    policy      on    a

vicarious     liability     claim     for    supervisory      sexual    harassment,

Aguas, supra, 220 N.J. at 499, but New Jersey nonetheless has

4
     "Under Restatement § 219(2)(d), an employee may assert that
the employer is vicariously liable for sexual harassment
committed by its employee because the sexual harasser purported
to act on the employer's behalf and 'there was reliance upon
[his or her] apparent authority,' or because the harasser 'was
aided in [his or her misconduct] by the existence of an agency
relation[ship] with his or her employer.'"    Aguas, supra, 220
N.J. at 514 (alteration in original) (quoting Lehmann, supra,
132 N.J. at 619).



                                            19                               A-3252-12T1
"acknowledged the value of effective anti-harassment policies in

combatting sexual harassment in the workplace, and recognized

that employers will be motivated to implement and enforce such

policies   if     their   policies       provide    a   defense   to   a   claim    of

vicarious liability."           Id. at 517.

    The Court found support for this principle in federal law

construing      Title    VII,    which    recognizes     an    employer    defending

such a sexual harassment claim may assert as an affirmative

defense    that    the    employer       had   an   effective     anti-harassment

policy and the employee failed to take advantage of or comply

with that policy.         Id. at 521 (citing Faragher, supra, 524 U.S.

at 807, 118 S. Ct. at 2292-93, 141 L. Ed. 2d at 689 and Ellerth,

supra, 524 U.S. at 765, 118 S. Ct. at 2270, 141 L. Ed. 2d at

655).      Explaining      the    LAD    and   Title     VII   share   the     common

objective "'not to provide redress but to avoid harm,'" id. at

520-21 (quoting Faragher, supra, 524 U.S. at 805-06, 118 S. Ct.

at 2292, 141 L. Ed. 2d at 688), the Court explicitly adopted the

Ellerth/Faragher affirmative defense:

                 In a hostile work environment sexual
            harassment case under the LAD in which the
            plaintiff    alleges     employer     vicarious
            liability under Restatement § 219(2)(d), the
            plaintiff   has    the   initial    burden   of
            presenting   a   prima   facie   hostile   work
            environment    claim.       If   no    tangible
            employment action has been taken against the
            plaintiff,   the    defendant[-]employer    may
            assert the two-pronged affirmative defense



                                          20                                 A-3252-12T1
           of Ellerth and Faragher.[5] To establish that
           defense, the defendant employer has the
           burden to prove, by a preponderance of the
           evidence, both prongs of the affirmative
           defense: first, that the employer exercised
           reasonable care to prevent and to correct
           promptly sexually harassing behavior; and
           second,    that   the    plaintiff   employee
           unreasonably failed to take advantage of
           preventive    or   corrective   opportunities
           provided by the employer or to otherwise
           avoid harm.

           [Id. at 524.]

       The Court also addressed the definition of a "supervisor,"

describing it as "a pivotal factor in the application of the

agency principles set forth in Restatement § 219(2)(d)."    Id. at

525.    Rejecting the United States Supreme Court's "restrictive

definition of 'supervisor,'"6 id. at 528, the Court adopted an


5
     The affirmative defense is unavailable where "'harassment
culminates in a tangible employment action, such as discharge,
demotion[,] or undesirable reassignment,'" id. at 522 (quoting
Faragher, supra, 524 U.S. at 808, 118 S. Ct. at 2293, 141 L. Ed.
2d at 689), "'because when a supervisor makes a tangible
employment decision, there is assurance the injury could not
have been inflicted absent the agency relation . . . . Tangible
employment actions are the means by which the supervisor brings
the official power of the enterprise to bear on subordinates.'"
Ibid. (alterations in original) (brackets omitted) (quoting
Ellerth, supra, 524 U.S. at 761-62, 118 S. Ct. at 2269, 141 L.
Ed. 2d at 653-54).
6
     See Vance v. Ball State Univ., ___ U.S. ___, ___, 133 S.
Ct. 2434, 2443, 186 L. Ed. 2d 565, 591 (2013) ("[A]n employer
may be vicariously liable for an employee's unlawful harassment
only when the employer has empowered that employee to take
tangible employment actions against the victim, i.e., to effect
a 'significant change in employment status, such as hiring,
                                                    (continued)


                                21                         A-3252-12T1
expansive definition of the term "to include . . . employees

granted   the   authority          to   make     tangible   employment     decisions

. . . [and] those placed in charge of the complainant's daily

work activities."       Id. at 528.

      Plaintiff focuses on his claim by asserting Harrington was

his supervisor.        As we noted in our earlier opinion, the record

does not allow us to accept or reject that claim.                     Nevertheless,

we do not need to decide that fact to apply the legal analysis

adopted in Aguas.

      Here, defendant took no tangible employment action against

plaintiff.        It    is        not     disputed   that    plaintiff      resigned

voluntarily     because      he    "felt    uncomfortable,"     an    assertion    we

have rejected as satisfying the proofs necessary to sustain a

constructive     discharge         claim.         Consequently,      defendant    may

assert the two-pronged Ellerth/Faragher affirmative defense, see

id. at 524, showing it acted in a reasonable and prompt manner

to   prevent    or   correct        the    harassing   behavior      and   plaintiff

unreasonably failed to take advantage of the preventative or

corrective measures implemented to avoid further harm.                      See id.




(continued)
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant
change in benefits.'" (quoting Ellerth, supra, 524 U.S. at 761,
118 S. Ct. at 2257, 141 L. Ed. 2d at 633)).



                                            22                              A-3252-12T1
at 521 (quoting Faragher, supra, 524 U.S. at 807, 118 S. Ct. at

2292-93, 141 L. Ed. 2d at 689).

      As   discussed    above,    plaintiff,    despite   training   and   the

opportunity to formally register his complaint with his manager

or HR, unreasonably failed to initiate corrective action.                    It

was   defendant   who    undertook    responsibility      to   determine   the

reasons why plaintiff failed to return to work, then exercised

reasonable care to prevent and correct harassing conduct by the

prompt enforcement of its anti-discrimination policy.                Once the

facts   were   discovered,   no    further     instance   of   discrimination

occurred.

      Affirmed.




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