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Muench v. Township of Haddon3/27/1992
HAVEY, J.A.D.
In this action commenced in the Law Division under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, the central issue is whether plaintiff must prove overt sexual conduct in the work place to establish a claim of unlawful discrimination based on sexual harassment. We conclude that no such showing need be made. We hold that harassment based solely on gender, which creates a hostile and offensive work environment is sufficient to establish a prima facie case of sex discrimination under the LAD. We therefore reverse and remand for further proceedings.
The gravamen of plaintiff's complaint is that while she worked as a probationary dispatcher with the defendant Haddon Township Police Department, defendant Joseph Tortoreto, a police officer, intentionally created a hostile work environment which compelled her to resign from her position. Plaintiff claims that Tortoreto's conduct constituted an "unlawful employment practice" in that his pervasive and severe conduct violated plaintiff's "conditions . . . of employment." N.J.S.A. 10:5-12a. She also alleges that Tortoreto's conduct and defendants' failure to correct the hostile working conditions resulted in her constructive discharge, and constituted a tortious interference with her prospective economic advantage. She seeks compensatory and punitive damages for severe emotional distress, and loss of earnings and other employment benefits. At the close of plaintiff's proofs during the jury trial, the trial court granted defendants' motion to dismiss plaintiff's complaint. See R. 4:37-2(b). The court found that there was no proof adduced showing improper sexual advances, touching or sexual language, and in any event Tortoreto's conduct was not so pervasive and offensive as to constitute harassment. The
court also dismissed plaintiff's constructive discharge and tortious interference claims, concluding that this was a case involving a "volunteer resignation."
Accepting plaintiff's testimony as true, and giving her all reasonable inferences drawn from the evidence, see Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969), her proofs established the following facts. In December 1986, at age 59, plaintiff was hired as a provisional dispatcher by the Haddon Township Police Department. Officer Tortoreto was assigned to train her. Tortoreto was against hiring plaintiff simply because she was a woman. It was his view that the dispatcher's position was a job for a male seeking employment as a police officer. During plaintiff's training, Tortoreto refused to answer her questions regarding various dispatching procedures, and often told plaintiff she was doing a "lousy" job. At one point, during lunch at a diner, Tortoreto stated in the presence of plaintiff and her friends that plaintiff was "doing a lousy job. She's never going to make it." It was plaintiff's impression that Tortoreto was trying to " et rid of me."
Plaintiff is a fastidious woman. Occasionally, she would clean up the department offices and Tortoreto would object, stating that plaintiff was a dispatcher, not a cleaning woman. On a "regular basis," Tortoreto would "smear" the dispatcher's window with his hands and on occasions would kiss it, leaving his lip prints. The more plaintiff objected to Tortoreto's conduct, the more "he would do it to antagonize me." During one incident, after plaintiff had left his lip prints on the window, he told plaintiff to explain to "the next nice-looking girl that comes in that they're mine." Also, at one point, after plaintiff had told Tortoreto that s
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