                                NOT FOR PUBLICATION WITHOUT THE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-3963-17T1

JENNIFER L. SCHIAVONE,

          Plaintiff-Respondent,

v.

THE STATE OF NEW
JERSEY DEPARTMENT
OF CORRECTIONS,

     Defendant-Appellant.
_________________________

                    Argued December 11, 2019 – Decided December 26, 2019

                    Before Judges Haas, Mayer and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-0657-15.

                    James M. Duttera, Deputy Attorney General, argued the
                    cause for appellant (Gurbir S. Grewal, Attorney
                    General, attorney; Melissa H. Raksa, Assistant
                    Attorney General, of counsel; Deborah Ann Hay,
                    Deputy Attorney General, on the briefs).

                    Andrew William Dwyer argued the cause for
                    respondent (The Law Offices of Jeremy C. Rosenbaum
                    and Dwyer & Barrett, LLC, attorneys; Jeremy C.
            Rosenbaum and Andrew Dwyer, of counsel and on the
            brief).

PER CURIAM

      Defendant Department of Corrections (DOC) appeals from a jury verdict

awarding plaintiff Jennifer Schiavone $100,000 in emotional distress damages

and $216,875 in punitive damages 1 on her claim that the DOC subjected her to

a hostile work environment based on her gender in violation of the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49. On appeal, the DOC contends

the trial judge erred by: (1) denying its pre-trial motion for summary judgment

and its motions at trial for a directed verdict based on the DOC's claim that

plaintiff failed to establish the elements of a LAD claim, and because the DOC

had proven an affirmative defense to plaintiff's cause of action; and (2) making

several mistakes in his evidentiary rulings. Based upon our review of the record

and applicable law, we affirm.

                                       I.

      Plaintiff began work for the DOC at the New Jersey State Prison (NJSP)

in August 2011, first serving as a corrections officer recruit. The DOC promoted


1
  The trial judge also awarded plaintiff $585,014.35 in counsel fees and costs,
and entered a judgment in favor of plaintiff reflecting a total award of
$901,889.35.


                                                                        A-3963-17T1
                                       2
her to senior corrections officer in August 2012, and plaintiff retained that title

through the trial. The DOC assigned plaintiff to the Central Control Unit

(Central Control) in June or July 2013. This was considered a desirable position

because, among other reasons, it did not involve direct interaction with inmates.

      Throughout the course of plaintiff's employment, the DOC maintained a

policy prohibiting discrimination in the workplace based on N.J.A.C. 4A:7-3.1.

This policy was provided to all employees annually, and was available online,

and posted in conspicuous work locations.

      The policy provided that:

            employment discrimination or harassment based upon
            the following protected categories are prohibited and
            will not be tolerated; race, creed, color, national origin,
            nationality, ancestry, age, sex/gender (including
            pregnancy), marital status, civil union status, domestic
            partnership status, familial status, religion, affectional
            or sexual orientation, gender identity or expression,
            atypical hereditary cellular or blood trait, genetic
            information, liability for service in the Armed Forces
            of the United States, disability.

The policy also stated that "[i]t is a violation of this policy to engage in sexual

(or gender based) harassment of any kind, including hostile work environment

harassment, quid pro quo harassment, or same-sex harassment."

      The DOC also promulgated a procedure for internal complaints alleging

discrimination in the workplace.       This procedure directed employees to

                                                                           A-3963-17T1
                                        3
immediately report any suspected violations of the policy prohibiting

discrimination in the workplace to any supervisory employee in the department.

While the necessary forms were available to employees online, complaints did

not need to be made in writing.

      The supervisor was supposed to forward all complaints to the DOC's

statewide Equal Employment Opportunity/Affirmative Action (EEO/AA)

director. This director would determine if an investigation into the alleged

harassment or discrimination was required. If it was, the EEO/AA director

would then develop a report summarizing the investigation for submission to the

DOC Commissioner for appropriate action.

      Antonio Campos, an assistant warden, served as the liaison to the

statewide EEO/AA office at NJSP. He testified at trial that he would typically

forward any allegations to the EEO/AA director, though employees were free to

forward such complaints themselves. Some complaints did not implicate these

policies and, in those cases, Campos would advise employees how to handle

conflicts with their colleagues.




                                                                       A-3963-17T1
                                      4
        At trial,2 plaintiff identified several incidents that she alleged were acts of

gender-based discrimination, primarily involving a rumor that she was having

an extramarital affair with a high-ranking prison official, S.D.,3 beginning

around the time of her transfer to her coveted Central Control position. This

speculation arose after plaintiff posted a photograph on Facebook showing her

dining with a man who resembled S.D., and increased after S.D. once greeted

plaintiff by her first name in the presence of other employees.

        Plaintiff and S.D. denied this affair, but the rumor continued to spread

through their workplace.        Plaintiff and S.D. heard the rumor repeated by

numerous colleagues on a near-daily basis, including from plaintiff's sister who

worked in another DOC facility. Officer Amy Foy testified she overheard

several officers discussing the affair in the prison dining room.            Multiple

colleagues suggested that plaintiff received preferential treatment, including the

Central Control assignment, because of the affair.

        In June 2013, shortly after plaintiff's assignment to Central Control,

Lieutenant Christopher Danielson told Sergeants Orlando Gil and Maurice


2
  The evidence plaintiff presented at trial expanded upon, but still largely
mirrored, the facts she raised in opposing the DOC's pre-trial motion for
summary judgment.
3
    We use initials to refer to this individual in order to protect his privacy.
                                                                               A-3963-17T1
                                           5
Jackson that he did not "give a fuck who [plaintiff] fucked to get this job" and

that he would "burn her." He made related comments to plaintiff in November

2013, when he referred to S.D. as her "boo."

      On July 19, 2013, Lieutenant Jamie Vaux confronted S.D. regarding the

alleged affair and threatened to tell S.D.'s wife.

      At an unstated time in 2013 or 2014, plaintiff's immediate supervisor,

Lieutenant Zsuzsanna Rogoshewski, told another lieutenant not to say anything

private in front of plaintiff because she was "with" S.D. and "[s]he'll tell."

Throughout 2014, Rogoshewski told various lieutenants that plaintiff was

protected because she was having an affair with S.D..

      On January 25, 2014, Rogoshewski called plaintiff an idiot, and

temporarily reassigned her from her preferred role as blotter officer to the

armory. Rogoshewski temporarily assigned a similarly-qualified male as blotter

officer. Around this time, Rogoshewski told plaintiff she was not performing

her work properly, and plaintiff reported this to her union representatives.

      On March 10, 2014, Rogoshewski's fiancé, Lieutenant Patrick Miller,

visited her in Central Control while he was supposed to be on duty elsewhere in

the prison. The DOC began an investigation of Miller's conduct in leaving his




                                                                          A-3963-17T1
                                         6
post, referred to as the "Sanderson investigation," and plaintiff served as a

witness on behalf of the DOC.

      Four days later, Miller and Rogoshewski approached plaintiff in Central

Control. Miller stated, "[m]e and [Rogoshewski] are going away on vacation to

be unprofessional and inappropriate," and Rogoshewski said, "people need to

mind their own fucking business," apparently in reference to plaintiff's rol e in

the Sanderson investigation. Miller also stated he was taking a coffee break

with Rogoshewski, and "anyone that cares to comment can shut the fuck up

now." At trial, Miller denied making these statements. On March 16, 2014,

Rogoshewski again told plaintiff that "people need to mind their own fucking

business."

      On March 21, 2014, Rogoshewski invited Vaux to Central Control and

openly discussed plaintiff's alleged affair with S.D., stating "[t]hat's her over

there, that's who's sleeping with the [high-ranking official]." Throughout March

and April 2014, Rogoshewski refused to greet plaintiff when greeting other

officers.

      Testifying for the DOC, Lieutenant Shawn Davis asserted that

Rogoshewski treated men and women equally. Lieutenant Michael Ptzaszenski

claimed at trial that Rogoshewski was "rough around the edges," and was


                                                                         A-3963-17T1
                                       7
demanding of everyone, whether male or female.              However, Ptzaszenski

admitted he never saw plaintiff and Rogoshewski interact in the workplace.

         On April 14, 2014, Rogoshewski temporarily reassigned plaintiff from

blotter officer to inmate gym and mail delivery. Similarly, at an unstated time

in 2014, Miller temporarily moved plaintiff from Central Control to the West

Compound. On April 25, 2014, Danielson told coworkers to be careful around

plaintiff because she "might tell."

         In July 2014, Officer Julie Houseworth threw papers at plaintiff, which

plaintiff believed to be an act of gender discrimination because Houseworth "had

an issue working with a lot of women" and because she had never seen

Houseworth do this to a male. In mid-2014, Houseworth asked plaintiff if she

planned to "blow" S.D. Houseworth later apologized for the remark.

         On October 24, 2014, Houseworth kicked a chair or trash can and told

plaintiff, "I have fucking had it with you," and then filed a report saying plaintiff

had reached for her gun as a means of threatening Houseworth.                Quiana

Whitmore investigated the matter on behalf of the DOC, but testified she could

not verify Houseworth's account of the incident. Houseworth did not testify at

trial.     Shortly thereafter, Jackson discouraged plaintiff from reporting

Houseworth for making a false report in connection with the matter. Two


                                                                             A-3963-17T1
                                         8
months later, Jackson told someone not to confuse him with plaintiff, saying

"don't you ever call me that name again, that's an insult."

      On January 4 or 5, 2015, plaintiff was injured when she was moving a

food cart. Beginning in January 2015, plaintiff went on a medical leave of

absence as a result of this injury.

      Plaintiff complained to Campos, the EEO/AA liaison, orally regarding the

rumored affair at least five times beginning in March or April 2014. She also

relayed these complaints to S.D. and Ptzaszenski on unspecified dates.

Specifically, plaintiff complained of sexual harassment and that "supervisors

won't stop accusing me of sleeping with the [high-ranking official]," and

emphasized that she did not want to work with Rogoshewski because she felt

unsafe doing so. She also complained about the conduct by Miller, Houseworth,

and Jackson, but did not report the incidents with Danielson or Vaux . Plaintiff

did not explicitly use the term "gender discrimination" when making these

complaints.

      Campos told plaintiff to ignore the rumors regarding her involvement with

S.D., and to "keep dodging the bullets," but he nonetheless questioned S.D.

about the alleged affair.     Significantly, Campos did not offer plaintiff the

opportunity to complete any paperwork detailing her allegations and plaintiff


                                                                        A-3963-17T1
                                        9
did not request to put these complaints in writing because she was embarrassed.

Campos took no other action, and Leila Lawrence, the statewide EEO/AA

director for the DOC, testified at trial that Campos did not relay any complaints

from plaintiff. Ptzaszenski told plaintiff to ignore Rogoshewski or move to a

different shift. During his testimony, Campos acknowledged that plaintiff came

to him with complaints, but he felt that gossip and rumors did not "touch upon

the [discrimination] policy" and, therefore, he expressed surprise that plaintiff

expected him to pursue the matter.

      Other employees, including Foy, had also complained of gender

discrimination to Campos. At trial, Foy testified that while Campos offered her

the opportunity to complete EEO documentation, she declined to do so.

      Plaintiff testified that she was embarrassed, ashamed, and disgusted by

the rumored affair with S.D.. She alleged she suffered anxiety and depression

as a result of the gender discrimination. Plaintiff's sister, Jenna Allar, testified

that plaintiff became withdrawn and would get angry more quickly after these

incidents. Plaintiff also began to experience hair loss, stomach pains, lack of

sleep, weight gain, diarrhea, and increased crying, causing her to use a number

of sick days. She did not go out to socialize as often as she used to or perform

household chores.


                                                                            A-3963-17T1
                                        10
      On March 23, 2015, plaintiff filed a complaint against the DOC alleging:

(1) a gender-based hostile work environment in violation of the LAD (count

one); (2) retaliation under the LAD (count two); and (3) whistleblower

retaliation under the Conscientious Employee Protection Act (CEPA), N.J.S.A.

34:19-1 (count three). The DOC filed an answer, denying the allegations in

plaintiff's complaint. In 2017, plaintiff stipulated to the dismissal of counts two

and three of her complaint. 4

      Following the completion of discovery, the DOC unsuccessfully moved

for summary judgment. The matter was then tried over multiple dates before a

jury. At the close of plaintiff's case, the DOC moved for a directed verdict,

alleging that she had not met the burden of proof for her claims, and the trial

judge denied the motion. The judge also denied the DOC's subsequent motion

for a directed verdict at the close of the trial. As previously noted, the jury found

in favor of plaintiff. This appeal followed.




4
  On September 26, 2017, plaintiff filed a second lawsuit, Schiavone v. New
Jersey Department of Corrections, Docket No. L-2099-17 (Schiavone II),
involving allegations of discrimination which began in April 2016, unrelated to
the claims in this matter. The court denied a motion in Schiavone II to
consolidate these two matters, and plaintiff stipulated that she would restrict her
damages in this matter to those claims which arose prior to Schiavone II.
                                                                             A-3963-17T1
                                        11
                                        II.

      In Point I of its brief, the DOC asserts that the judge erred by denying its

motion for summary judgment. The DOC argues that plaintiff failed to establish

a prima facie case of a hostile work environment under the LAD and, even if

she had, the DOC satisfied the elements of the affirmative defense set forth in

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries

v. Ellerth, 524 U.S. 742 (1998). We disagree.

      Summary judgment is appropriate where "the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a matter of law." R.

4:46-2(c). Our review of a ruling on summary judgment is de novo, applying

the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463,

477-78 (2013). That standard is "whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251-52 (1986)).




                                                                           A-3963-17T1
                                       12
      When determining whether there is a genuine issue of material fact, the

court must consider "whether the competent evidential materials presented,

when viewed in the light most favorable to the non-moving party, are sufficient

to permit a rational factfinder to resolve the alleged disputed issue in favor of

the non-moving party." Brill, 142 N.J. at 540. While the trial court's legal

conclusions are owed no deference, Nicholas, 213 N.J. at 478, this court should

affirm the judgment if it finds that the trial court's conclusions of law were

correct. Henry v. New Jersey Dept. of Human Servs., 204 N.J. 320, 330 (2010).

      In assessing hostile work environment based on gender discrimination

claims, we employ the same analysis developed under the federal anti-

discrimination laws in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). In order to avoid summary judgment in the employer's favor, the

McDonnell Douglas test requires an employee to prove a prima facie case of

discrimination. Victor v. State, 203 N.J. 383, 408 (2010). This burden has

appropriately been described as "rather modest." Zive v. Stanley Roberts, Inc.,

182 N.J. 436, 447 (quoting Marzano v. Compute Sci. Corp., 91 F.3d 497, 508

(3d Cir. 1996)).

      In Lehmann v. Toys 'R' Us, Inc., our Supreme Court delineated the

standards of proof that are necessary in order to bring a discrimination claim


                                                                         A-3963-17T1
                                      13
premised on acts of sexual harassment.         132 N.J. 587, 603 (1993). To

demonstrate a discriminatory hostile environment caused by sexual harassment,

a plaintiff must show that "the complained-of conduct (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 that (4) the conditions of

employment are altered and the working environment is hostile or abusive." Id.

at 603-04.

      Applying these standards to the facts available to the judge at the time the

DOC sought summary judgment, we discern no basis to disturb the jud ge's

denial of that motion.

      In evaluating the DOC's motion, the judge considered the evidence of

alleged gender discrimination presented in the motion record, including

depositions and certifications, which discussed: the ongoing rumor about

plaintiff's relationship with S.D.; Danielson's comment that he would "burn her";

Rogoshewski's persistent spreading of this rumor; Houseworth's hostility and

lewd comment toward plaintiff; and Campos's failure to act in response to

plaintiff's complaints. Giving plaintiff all the legitimate inferences from this

evidence, we cannot agree with the DOC's assertion that the evidence was "so




                                                                          A-3963-17T1
                                      14
one-sided" that plaintiff should have been barred from presenting her hostile

work environment claim to the jury.

      In so ruling, we reject the DOC's contention that there was insufficient

evidence in the motion record to enable a jury to conclude that the harassment

plaintiff identified would not have occurred but for her gender under the first

prong of the Lehmann test. The requirement that a plaintiff demonstrate that the

harassment would not have occurred but for her gender is the "defining element"

of a hostile work environment claim. Herman v. Coastal Corp., 348 N.J. Super.

1, 20 (App. Div. 2002). "Common sense dictates that there is no LAD violation

if the [employer's] conduct would have occurred regardless of the plaintiff's

[protected status]." Lehmann, 132 N.J. at 604. Thus, under the first prong of

the test, a plaintiff raising a claim of hostile work environment must show that

"it is more likely than not" that the complained-of conduct occurred because of

his or her protected status. Id. at 605.

      Contrary to the DOC's argument on this point, rumors of sexual

relationships may satisfy the first prong of the test set forth in Lehmann. For

example, in Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 261-63 (App.

Div. 1996), an employee of the defendant frequently told various colleagues that

the female plaintiff was having affairs with high-ranking employees,


                                                                        A-3963-17T1
                                       15
specifically that she was "doing" medical residents and "sleeping with

someone." The employee made other statements, including that the plaintiff was

"a woman and a pain in my ass" and "being emotional because of PMS." Ibid.

The court found that this employee's comments, including those about the affair,

were facially sex-related and satisfied the "but-for" portion of the test. Id. at

270.

       In addition, courts have held that rumors of sexual affairs with superiors

in the workplace can constitute sex-based harassment of a woman, even though

the participants in the alleged affair are, as here, both male and female. For

example, in Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1994), a hostile work

environment case involving a false rumor that a female employee was having an

affair with her male supervisor, the court reversed a trial court's grant of

summary judgment and held that

             . . . the crux of the rumors and their impact upon Spain
             is that Spain, a female, subordinate employee, had a
             sexual relationship with her male superior.
             Unfortunately, traditional negative stereotypes
             regarding the relationship between the advancement of
             women in the workplace and their sexual behavior
             stubbornly persist in our society. Because we are
             cognizant that these stereotypes may cause superiors
             and co-workers to treat women in the workplace
             differently from men, we find that a reasonable jury
             could conclude that Spain suffered the effects she
             alleges because she was a woman.

                                                                         A-3963-17T1
                                       16
            [Id. at 448.]

      The Spain court further held that such a rumor would not have the same

impact on the male supervisor:

            . . . while it is true that the rumors also implicated [the
            male supervisor], the rumors did not suggest that his
            involvement in the alleged relationship had brought
            him additional power in the workplace over his fellow
            employees, and the employees had no reason for
            resenting him in the way they did Spain. Accordingly,
            he did not have to endure a hostile working
            environment brought about due to his sex.

            [Ibid.]

      Here, the record contained sufficient evidence to show that the harassing

conduct exhibited by plaintiff's coworkers would not have occurred but for her

gender. As the judge found, a female officer would endure unique implications

because of the rumored affair which a male counterpart would not. The record

supported the judge's observations that such rumors might suggest that she

received the desirable Central Control assignment because of the relationship,

and that such a determination should be made by the jury.            For example,

Danielson's comment that he did not care "who [plaintiff] fucked to get this job"

indicates that the rumor was both a commentary on plaintiff's morals and

suggested that she did not earn her desirable assignment. Therefore, the DOC's

contention must be rejected.

                                                                          A-3963-17T1
                                       17
      The DOC next argues that plaintiff presented insufficient evidence under

the second prong of the Lehmann test that the alleged harassment was severe or

pervasive enough to make a reasonable woman believe that the conditions of her

employment were altered and the working environment was hostile or abusive.

This argument also lacks merit.

      As we recently stated in Dickson v. Community Bus Lines, Inc.:

             "Severity and workplace hostility are measured by
             surrounding circumstances." Taylor [v. Metzger], 152
             N.J. [490, 506 (1998)]. In assessing hostile work
             environment claims, "all the circumstances" must be
             looked at "including the frequency of the
             discriminatory conduct; its severity; whether it is
             physically threatening or humiliating, or a mere
             offensive utterance; and whether it unreasonably
             interferes with an employee's work performance."
             Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447
             (2003) (quoting Shepherd v. Hunterdon Developmental
             Ctr., 174 N.J. 1, 19-20 (2002)).

             [458 N.J. Super. 522, 534 (App. Div. 2019).]

      In denying the DOC's motion for summary judgment, the judge found that

the rumored affair between plaintiff and S.D. was "of a sufficient nature and

really in terms of it's being perpetuated, is, -- it's almost a continuing violation,

that it's sufficient for a rational fact finder to determine whether or not a sexually

hostile work environment was created." Further, the rumored affair "made the



                                                                              A-3963-17T1
                                         18
rounds" over several months and further circulated within plaintiff's work site,

as well as to other facilities operated by the DOC.

      The judge appropriately cited Taylor v. Metzger, 152 N.J. 490 (1998), to

emphasize that even one single incident could be actionable, and stated that at

least one superior lieutenant was involved in perpetuating the rumor. The judge

concluded that because the rumor was widely disseminated in the prison, a

rational fact finder could determine it was severe or pervasive enough to make

a reasonable woman believe that the conditions of her employment were altered

and the working environment was hostile or abusive. Therefore, the judge

properly denied the DOC's summary judgment motion.

      The DOC next argues that even if the elements of gender-based hostile

work environment existed, it satisfied the elements of the Faragher and Ellerth

affirmative defense, as made applicable in New Jersey under Aguas v. State of

New Jersey, 220 N.J. 494 (2015). We disagree.

      Employers have a duty to take effective measures to stop co-employee

harassment when the employer knows or has reason to know that such

harassment is taking place. Blakey v. Continental Airlines, Inc., 164 N.J. 38, 62

(2000). In Aguas, the Supreme Court addressed whether an employer can be

liable for an alleged hostile work environment where the employer did not


                                                                         A-3963-17T1
                                      19
effectuate an adverse employment action against the plaintiff. 200 N.J. at 494.

The court held the affirmative defense established in Faragher, 524 U.S. at 775

and Ellerth, 524 U.S. at 742, to be applicable to cases in New Jersey. Aguas,

200 N.J. at 523-24. Under Faragher and Ellerth, an employer is entitled to

summary judgment if it (1) "exercised reasonable care to prevent and correct

promptly any sexually harassing behavior" and (2) "the plaintiff employee

unreasonably failed to take advantage of any preventative or corrective

opportunities provided by the employer or to avoid harm otherwise." Aguas,

220 N.J. at 524 (citing Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765).

      This affirmative defense "provides no benefit to . . . employers who fail

to implement effective anti-harassment policies, and employers whose policies

exist in name only." Aguas, 220 N.J. at 522-23. An employer that implements

an ineffective anti-harassment policy, or fails to enforce its policy, may not

assert the affirmative defense. Id. at 523.

      Here, the DOC did not demonstrate that it was entitled to rely upon this

affirmative defense as a means of defeating plaintiff's opposition to summary

judgment. Under the first prong of the Faragher and Ellerth test, the motion

record plainly demonstrated that the DOC failed to use reasonable care to

prevent or correct the alleged harassing behavior.        Despite the policy's


                                                                         A-3963-17T1
                                       20
requirements, and plaintiff's multiple complaints to her supervisors and to

Campos, her allegations were not forwarded to the DOC's statewide EEO/AA

officer, Lawrence, for further investigation. Campos merely directed plaintiff

to try to ignore the rumors. Despite her complaints as early as March or April

2014, the motion record reflected that the harassment of plaintiff by multiple

superior officers continued until plaintiff's leave of absence began in January

2015. Thus, the DOC's policy was utterly ineffective.

        Under the second prong of the test, nothing in the motion record revealed

that plaintiff unreasonably failed to take advantage of the opportunities provided

by the DOC to correct the harassment. To the contrary, plaintiff complained of

this conduct to various prison officials repeatedly as early as March or April

2014.     While she did not label this conduct gender discrimination, she

nonetheless indicated that it pertained to her alleged romantic relationship with

her superior, S.D., and the prison officials should have recognized that these

complaints implicated possible gender discrimination. Therefore, the judge

correctly rejected DOC's contention that it was entitled to assert the Faragher

and Ellerth defense.



                                       III.


                                                                          A-3963-17T1
                                       21
       For many of the same reasons discussed above, we also reject the DOC's

assertion in Point II of its brief that the judge erred by denying its motions for a

directed verdict, made both at the end of plaintiff's case and at the conclusion of

the trial.

       Under Rule 4:40-1, "[a] motion for judgment . . . may be made by a party

. . . at the close of all the evidence offered by an opponent." The standard of

review is the same as that for a motion for Rule 4:37-2(b), which permits a party

to seek an involuntary dismissal after "the presentation of the evidence on all

matters" at the trial. In deciding the motion, the court "must accept as true all

evidence supporting the position of the party defending against the motion and

must accord that party the benefit of all legitimate inferences which can be

deduced [from the evidence]." Besler v. Bd. of Educ. of W. Windsor-Plainsboro

Reg'l Sch. Dist., 201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis

v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). If reasonable minds could

reach different conclusions, the motion must be denied. Rena, Inc. v. Brien, 310

N.J. Super. 304, 311 (App. Div. 1998). If the evidence is so one-sided, however,

that one party must prevail as a matter of law, then a directed verdict is

appropriate. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003).




                                                                            A-3963-17T1
                                        22
      Applying these standards, we detect no error in the denial of the DOC's

motions for directed verdicts. As noted in our discussion of the summ ary

judgment motion, there was ample evidence that plaintiff would not have been

harassed but for her gender, and the constant harassment she suffered was

clearly "severe or pervasive enough to make a . . . reasonable woman believe

that . . . the conditions of employment are altered and the working environment

is hostile or abusive." Lehmann, 132 N.J. at 603-04. Therefore, the judge

correctly denied the DOC's motions.

                                        IV.

      Finally, the DOC argues in Point III of its brief that the judge made several

evidentiary errors that require reversal. This contention also lacks merit.

      Our standard of review of a trial court's decisions on evidentiary questions

is well settled.    "When a trial court admits or excludes evidence, its

determination is 'entitled to deference absent a showing of an abuse of

discretion, i.e., [that] there has been a clear error of judgment.'" Griffin v. City

of E. Orange, 225 N.J. 400, 413 (2016) (alteration in original) (quoting State v.

Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an evidentiary ruling

only if it 'was so wide [of] the mark that a manifest denial of justice resulted.'"

Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Applying


                                                                            A-3963-17T1
                                        23
this standard, none of the allegations raised by the DOC on this point require

our intervention.

      The DOC first argues that the judge erred by barring any references by the

parties to plaintiff's assertion in her complaint that she was the victim of

retaliation due to her involvement in the Sanderson investigation. The DOC

asserts that this ruling prevented it from arguing to the jury that the harassment

plaintiff suffered was the result of retaliation for reporting Miller's misconduct

rather than because of her gender.

      However, plaintiff voluntarily dismissed the retaliation count of her

complaint prior to trial, and the DOC filed a successful in limine motion to

exclude evidence of certain dismissed retaliatory acts because admitting them

would be confusing to the jury and unduly prejudicial.              Under these

circumstances, the DOC's change of heart at trial and its attempts thereafter to

introduce the retaliation claims were clearly barred by the judicial estoppel

doctrine, which operates to bar a party from asserting a position contrary to and

inconsistent with one previously asserted. McCurrie v. Town of Kearny, 174

N.J. 523, 533-34 (2002).

      The DOC next argues that the judge erred by excluding evidence of

plaintiff's subsequent complaints against other employees in Schiavone II,


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which prevented the defense from cross-examining plaintiff regarding her

assertion that making a complaint about the gender-based harassment in this

matter was futile. However, the Schiavone II action was entirely separate from

the case at hand, and plaintiff stipulated to limit her damages here to the period

before the claims in her second matter arose. Thus, the later allegations were

simply not relevant in this matter.

        The DOC also claims that the judge should have barred Foy from

testifying because her testimony was hearsay, and was also inadmissible under

N.J.R.E. 404(b) because it concerned Campos's "prior bad acts."            These

arguments lack merit.

        Contrary to the DOC's contention, Foy's testimony about the rumors she

heard being spread about plaintiff was not hearsay. This is so because it was

not offered to prove the truth of the matter asserted, namely, that plaintiff and

S.D. were having an affair. Instead, the testimony was presented to establish

that the rumor, whether true or not, was circulating and openly discussed at

NJSP.

        The DOC also objected to Foy's testimony by claiming that any attempt

by plaintiff to portray the futility of complaining to Campos was an attempt to




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demonstrate his "prior bad acts" in violation of N.J.R.E. 404(b). However, the

DOC has misinterpreted Foy's testimony on this point.

         Foy testified that after she informally complained to Campos in 2015 or

2016 about gender-based harassment, Campos gave her a packet of papers to fill

out in order to enter a formal complaint. Foy stated she declined to do so

because it was easier to "just deal with it" on her own. This testimony clearly

did not violate N.J.R.E. 404(b) because Foy's personal decision to forego filing

a written complaint simply does not demonstrate any "bad act" on Campos 's

part.5

         Affirmed.




5
  As for the balance of any of the DOC's arguments not expressly mentioned
above, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).


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