Colello v. Bayshore Cmty. Health Services. (Full Text)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

Plaintiff-Appellant,

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3423-08T1

DORIS COLELLO,

BAYSHORE COMMUNITY
HEALTH SERVICES,

and

ARIEL SOLIS, M.D.,

________________________________________________________________

Defendant-Respondent,

Defendant.

April 28, 2010

Argued April 12, 2010 – Decided

Before Judges Baxter, Alvarez and Coburn.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Docket No. L-3476-05.

Linda Wong argued the cause for appellant
(Wong Fleming, attorneys; Ms. Wong, Daniel
Fleming and Gregory G. Johnson, on the
briefs).

Jedd Mendelson argued the cause for
respondent
(Littler
Mendelson,
P.C.,
attorneys; Mr. Mendelson, on the brief).

PER CURIAM

Plaintiff Doris Colello appeals from a February 6, 2009 Law

Division order that granted summary judgment to defendant

Bayshore Community Health Services (“Bayshore” or “the

hospital”), thereby dismissing plaintiff’s hostile work

environment sexual harassment complaint. We agree with

plaintiff’s contention that the Law Division erred by: 1)

finding that the conduct of defendant Ariel Solis, M.D.,1 while

“deplorable and disgusting,” did not rise to the level of

“severe or pervasive” necessary to maintain a cause of action

under the New Jersey Law Against Discrimination (LAD), N.J.S.A.

10:5-1 to -49; 2) finding that even if Solis’s conduct were to

be deemed “severe or pervasive,” Solis was not an employee of

Bayshore and therefore Bayshore could not be deemed vicariously

liable for any unlawful conduct Solis may have committed; and 3)

dismissing plaintiff’s claims for intentional infliction of

emotional distress and assault and battery. However, we affirm

the dismissal of plaintiff’s retaliation and aiding and abetting

claims.

We thus affirm in part, reverse in part and remand for

further proceedings.

1 In February 2008, plaintiff reached a settlement with Solis and
on September 5, 2008, filed a stipulation dismissing her claims
against him.

A-3423-08T1

Plaintiff began working as a nurse at Bayshore in 1987 and

enjoyed a good reputation within the hospital. On July 31,

2000, plaintiff was appointed a nursing care coordinator, making

her responsible for supervising the nursing staff in the

telemetry unit. Solis began his affiliation with Bayshore in

1991. As a thoracic and cardiovascular surgeon, he often

attended to patients in plaintiff’s unit. Solis had a

reputation among the nursing staff for being overbearing and a

“bully.” Solis also had a reputation for being “touchy-feely”

and flirtatious. However, the hospital administration did not

view such conduct as “a major issue to make a scene about.”

Shortly after plaintiff assumed her duties in the telemetry

unit, Solis began to show a romantic interest in her. Between

2000 and 2001, he repeatedly asked her out on dates, which she

declined. Solis made comments about her appearance, and

initiated physical contact with plaintiff by rubbing her back

and shoulders. Solis also frequently demanded that plaintiff

assist him with patients, even though other nurses were already

assigned to the task. Plaintiff grew increasingly uncomfortable

with Solis’s attentions.

In November 2002, Solis asked plaintiff to meet privately

with him to discuss hospital policies and procedures. Plaintiff

A-3423-08T1

discussed Solis’s request with her supervisor, Michelle

Langevin, the director of nursing. Plaintiff told Langevin that

Solis’s past conduct made her uncomfortable, and that she could

not understand why he wanted to speak with her because the

issues were not within her scope of authority. Langevin

directed plaintiff to do as Solis asked and attend the meeting.

In the meeting that ensued, Solis asked plaintiff how she

had become a manager of the telemetry unit and questioned her

about various hospital policies. When she referred Solis to

either Langevin, Michael Teehan, the vice-president of nursing,

or Raimonda Clark, Bayshore’s chief operating officer, Solis

stated that he would not speak to any “of them in the high-

heeled shoes,” and that he would only go to the “the boss man,”

Thomas Goldman, who was Bayshore’s president and chief executive

officer.

In 2003, Solis was elected by his peers to serve as the

president of Bayshore’s medical staff. According to Solis, the

role of the medical staff president was to “represent the

medical staff and liaison [sic] between the medical staff and

[hospital] administration.” The medical staff organization was

responsible for overseeing its members, “subject to the ultimate

authority of the Board of Trustees” (Board) of the hospital, and

for providing recommendations to the Board on matters involving

A-3423-08T1

the credentials, performance and discipline of medical staff.

As the medical staff president, Solis was also a member of the

Board, which had the final authority on all matters related to

hospital operations.

On January 6, 2003, Solis unexpectedly entered the office

that plaintiff shared with another nurse, Lori Romano, and

requested a meeting to “follow up” on their prior November 2002

meeting. Romano was present initially, but left the office

shortly after Solis arrived. After discussing hospital matters,

Solis told plaintiff that he had been in love with her for the

past fifteen years. Plaintiff told Solis that his feelings for

her were not reciprocated and that he was upsetting her.

Solis then leaned over and kissed plaintiff’s cheek. She

immediately rose from her seat and attempted to leave the

office, but Solis followed her and proposed that they have an

affair. He then grabbed plaintiff and forcibly kissed her,

thrusting his tongue into her mouth. When plaintiff pushed him

away, Solis smirked, and as he left her office, said “this is

not over.”

Romano later saw plaintiff, and noticed that she was

“extremely upset and visibly shaken.” Plaintiff told Romano she

did not wish to discuss what had just happened, but stated,

“[p]lease don’t ever leave me alone with him again.”

A-3423-08T1

When plaintiff returned to work on January 13, 2003, she

reported the incident to Langevin. Langevin responded that she

was not surprised because Solis had always been “touchy feely.”

Langevin scheduled a meeting with plaintiff and other hospital

administrators to discuss the January 6, 2003 incident.

On January 21, 2003, Solis approached plaintiff again and

acted as if nothing had occurred. He told plaintiff that she

was “looking good,” and rubbed her back until she walked away.

On January 22, 2003, plaintiff met with Langevin, Teehan, Cohen,

and Emro Krasovec, Bayshore’s vice president of human resources.

Plaintiff gave a statement describing what Solis had done to her

on January 6 and the day before. During the meeting, plaintiff

agreed to take time off while the matter was under

investigation.

Beginning on February 1, 2003, plaintiff commenced a paid

leave of absence for a period of six months. While on leave,

plaintiff received free counseling at a center operated by

Bayshore, where the physician who treated plaintiff during this

time diagnosed her as suffering from symptoms of post-traumatic

stress disorder (PTSD).

Shortly after her leave began, Bayshore asked plaintiff to

attend a meeting on February 14, 2003, with Krasovec, Solis,

Langevin, Teehan, and Cohen. Plaintiff was uncomfortable facing

A-3423-08T1

Solis, but believed that she was obligated to attend. In the

meeting, Solis continued to deny plaintiff’s allegations,

asserting that he had only lightly “grabbed each of her arms”

and kissed her on her cheeks as a friendly gesture. Solis

apologized if plaintiff had misconstrued his actions and for

upsetting her. Plaintiff refused his apology, and the meeting

concluded.

Plaintiff returned from her leave of absence on August 13,

2003. To minimize her contact with Solis, plaintiff accepted

Bayshore’s offer to fill a recently-created clinical admissions

coordinator position. Bayshore acknowledged at appellate oral

argument that this was a less prestigious position than the one

she occupied before her leave of absence, but maintained that

her salary was maintained at its prior level.

After the February 14, 2003 meeting between plaintiff,

Bayshore administration and Solis, the hospital commenced an

investigation. Bayshore’s sexual harassment policy did not

specifically address the harassment of its employees by

attending physicians. Instead, the policy more generally stated

that Bayshore would “not permit any employee to illegally harass

others with whom he/she has business interactions, including but

not limited to other employees, customers and vendors, or permit

any outsider to harass its employees.” It prohibited

A-3423-08T1

”[a]ctions, words, jokes or comments” based on an individual’s

sex, and expressly forbade “sexual conduct (both overt and

subtle).” If a complaint was filed, Bayshore was obligated to

conduct an investigation to determine whether any corrective

action was warranted. Such corrective action could include

discharge of the offending employee.

According to Teehan, investigations of employee-on-employee

incidents normally concluded with final determinations of

whether the alleged harassment had actually occurred. However,

the incident involving Solis’s treatment of plaintiff was viewed

as being unique, because as an attending physician Solis was not

regarded as a Bayshore employee. Because Solis was a member of

the medical staff, Krasovec and Cohen determined that the

medical staff bylaws should control the hospital’s response.

The medical staff bylaws specified that if a complaint

alleged that a physician’s “professional performance” was

“impaired” by “mental or emotional illness” or other causes, the

medical staff president was required to appoint members to

conduct an investigation and determine if “there is sufficient

reason to believe that impairment may be an issue” and whether

“corrective action” was required. If so, the bylaws specified

that authorized “corrective actions” would range from a referral

A-3423-08T1

for treatment to a reduction or suspension of clinical

privileges, or a suspension or expulsion from the medical staff.

Because Solis was the medical staff president, Cohen

requested that Dr. Shuber Fan, the vice president of the medical

staff, appoint two doctors to investigate plaintiff’s

allegations. Fan selected Drs. Amal Azer and Douglas Chudzik,

whom Cohen contacted to explain the purpose of the

investigation.

Chudzik testified at his deposition that Cohen provided him

with no guidance on conducting the investigation. Azer

testified that Cohen simply directed her to follow the bylaws in

investigating the matter. She also asserted that she had not

been given any information regarding appropriate conduct in the

workplace or any definitions of sexual harassment. In fact,

none of the physicians at Bayshore, including Solis, were ever

required to attend any sexual harassment training.

Azer and Chudzik each spoke separately to plaintiff, but

neither spoke with Romano or Solis. Cohen had already spoken

with Solis, at which time Solis admitted only to having greeted

plaintiff by kissing her cheeks. Therefore, Azer and Chudzik

concluded that their investigation would not “gain anything

more” by discussing plaintiff’s allegations with Solis.

A-3423-08T1

Azer and Chudzik met with Cohen on January 31, 2003, and

reported that while they found plaintiff to be sincere, they

were unable to conclusively determine what had happened. Azer

explained that she was unsure about the truthfulness of

plaintiff’s version of events because Azer believed plaintiff

should have repelled Solis’s alleged January 6, 2003 assault

more aggressively.

Cohen memorialized his discussion with Azer and Chudzik in

a confidential memo dated January 31, 2003, and deemed Solis

impaired. Consistent with the impaired physician provisions of

the bylaws, Cohen contacted the New Jersey Board of Medical

Examiners (BME), and learned that the BME offered two methods

for reporting impaired physicians. After discussing the options

with Solis, Cohen “cajoled” Solis to enroll in a treatment

program through the BME’s confidential reporting route for

impaired physicians. According to Cohen, the purpose of the

program was to rehabilitate impaired physicians without

“destroying their careers.”

Solis initially submitted to anger management treatment,

but interfered with Cohen’s efforts to obtain information about

his progress. Cohen eventually became frustrated by Solis’s

refusal to cooperate, and filed a formal complaint against Solis

A-3423-08T1

with BME, resulting in proceedings that were potentially open to

the public.

On March 13, 2006, the BME issued a private letter to Solis

expressing concern with Solis’s admission that he had “kissed

[plaintiff] on both cheeks and grabbed her arms.” However,

instead of initiating formal action against Solis’s medical

license, BME proposed to “close” the matter if Solis agreed to

submit to “an evaluation and counseling for sexual harassment

and anger management.”2 Solis accepted the BME’s terms in

September 2006.

On November 29, 2007, Bayshore issued a letter advising

plaintiff that it deemed her harassment complaint against Solis

resolved. Solis retained his attending privileges at the

hospital and was never disciplined or punished by Bayshore for

his actions. According to plaintiff, she was upset whenever she

saw Solis in the hospital, and deliberately took steps to avoid

him.

Plaintiff believed that Bayshore retaliated against her for

filing a complaint against Solis. She maintained that Clark had

expressed a desire to transfer her to an undesirable position in

the hospital to induce her to leave her employment. Her

2 The “anger management” recommendation was the result of a
separate complaint by another nurse.

A-3423-08T1

allegation is supported by the deposition testimony of Gerald

Costa, who became vice president of medical affairs when Cohen

retired; however, the details of Clark’s alleged intentions,

such as when and why Clark made the statement, are not clear

from the portions of the deposition transcript in the record.

Plaintiff also complained that in 2004 Dr. Yong Choo,

another attending physician, had made a series of inappropriate

comments to her and another nurse. On one occasion, Choo

expressed his frustration at having to wait for a nurse to

provide him with information from a patient’s medical chart,

describing his experience of being interrupted at home by

nurses: “I could just be getting out of the shower and they’re

on the phone and I’m sitting there naked and waiting for answers

and responses and I’m just waiting and waiting and waiting and

nobody is getting back to me.” Choo also asked plaintiff out to

lunch or dinner and recounted a story of a physician who had

formerly worked at Bayshore and had an adulterous affair with a

nurse.

On two other occasions, Choo purportedly put his arm around

plaintiff after allegedly hearing about her complaint against

Solis and asked her if she was all right. When plaintiff

complained about the incidents to Teehan, a member of the

A-3423-08T1

hospital’s administration asked Choo to refrain from discussing

matters that would make others uncomfortable.

Plaintiff made another complaint against Choo in 2007,

because he kissed her cheek while wishing her “Happy New Year.”

As a result, Krasovec issued Choo a reprimand letter on February

7, 2007, advising that his behavior was not acceptable and

warning that the continuation of such behavior “would result in

further investigation and possible disciplinary action, up to

and including loss of medical staff privileges.”

In November 2008, Bayshore moved for summary judgment. For

the purposes of the motion, the judge found as an undisputed

fact that during plaintiff’s employment, she had been subjected

to at least two instances of sexual harassment by Solis, one on

January 6, 2003, and the other on January 21, 2003. However,

the judge concluded that neither incident, individually or

collectively, was sufficiently “severe or pervasive” to satisfy

the legal standard articulated in Lehmann v. Toys ‘R’ Us, Inc.,

132 N.J. 587 (1993), to establish a hostile work environment

claim under the LAD. She found that Solis’s conduct was akin to

the behavior the Court deemed insufficient to establish a

hostile environment in Godfrey v. Princeton Theological

Seminary, 196 N.J. 178 (2008).

A-3423-08T1

The judge alternatively found that even if the incidents

were “severe or pervasive,” Bayshore could not be held liable

for Solis’s conduct because he was not Bayshore’s employee. In

view of those constraints, the judge concluded that Bayshore’s

actions and accommodations reasonably remedied any harm

sustained by plaintiff.

The judge also found that the two incidents involving Choo

did not constitute retaliation, and dismissed plaintiff’s claim

accordingly. As to plaintiff’s allegations of intentional

infliction of emotional distress and assault and battery, the

court again ruled that Bayshore was not liable for Solis’s

conduct because there was no agency relationship. The judge

also dismissed plaintiff’s emotional distress claim because

Solis’s conduct was not sufficiently egregious and because Solis

did not act with the intent to inflict emotional distress on

plaintiff. The judge did not directly address plaintiff’s claim

that the hospital had aided and abetted Solis’s unlawful

conduct.

II.

When determining a motion for summary judgment, the

trial judge must decide whether “the competent evidential

materials presented, when viewed in the light most favorable to

the non-moving party, are sufficient to permit a rational

A-3423-08T1

factfinder to resolve the alleged disputed issue in favor of the

non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995). Summary judgment must be granted if “the

pleadings,

depositions,

answers

interrogatories

and

admissions on file, together with 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). This appeal arises from an order

granting summary judgment to defendant. Therefore, we view the

evidence in the light most favorable to the non-moving party.

Brill, supra, 142 N.J. at 540. When reviewing an order granting

or denying summary judgment, we apply the same standard used by

the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan,

307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J.

608 (1998).

We turn first to plaintiff’s claim that the Law Division

erred when it found that Solis’s conduct was not sufficiently

severe or pervasive to create a hostile work environment.

Before analyzing plaintiff’s claims, we pause to address

Bayshore’s contention that plaintiff is barred from relying upon

evidence relating to any pre-January 2003 events by virtue of a

tolling agreement that the parties apparently executed in

January 2005. Bayshore has not cited any legal authority to

A-3423-08T1

support its position that otherwise competent evidence such as

this may be time-barred. We recognize that because plaintiff

filed her complaint in 2005, events that occurred prior to

August 2003 would ordinarily be barred by the two-year statute

of limitations. See N.J.S.A. 2A:14-2. However, events that are

part of a continuing pattern of unlawful behavior are admissible

even if they lie outside the two-year limitations period.

Shepherd v. Hunterdon Devtl. Ctr, 174 N.J. 1, 17-18 (2002). For

that reason, we conclude that the events prior to 2003 are

admissible. We need not tarry long on this issue, however,

because, as we shall now discuss, plaintiff’s encounters with

Solis on January 6 and January 21, 2003, provided a sufficient

basis, in and of themselves, to have required the judge to deny

Bayshore’s summary judgment motion.

The Court held in Lehmann that “when an employer or fellow

employees harass an employee because of his or her sex to the

point [that] the working environment becomes hostile,” the

targeted employee has established a cause of action under the

LAD. Supra, 132 N.J. at 601. To establish a claim for hostile

work environment sexual harassment, a plaintiff must establish

four factors:

[T]he complained-of conduct (1) would not
have occurred but for the employee’s gender;
and it was (2) severe or pervasive enough to

A-3423-08T1

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.]

“When the harassing conduct is sexual or sexist in nature, the

[first factor] will automatically be satisfied.” Id. at 605.

The “defining characteristic [of sexual harassment] is that the

harassment occurs because of the victim’s sex.” Id. at 602.

For purposes of appeal, Bayshore does not dispute that Solis

grabbed plaintiff and forcibly kissed her. Thus, the first

factor has been satisfied.

The remaining Lehmann factors are interdependent. Id. at

604. In assessing the “severe or pervasive” component, the

relevant inquiry is whether the conduct itself was severe or

pervasive, regardless of the effect of that conduct upon the

plaintiff or work environment. Id. at 606-07. Accordingly, a

single incident can, when severe enough, satisfy this

requirement. Ibid. See also Taylor v. Metzger, 152 N.J. 490,

498-99 (1998) (a single utterance of a racial epithet was

sufficient to create a hostile work environment). When multiple

acts of harassment are alleged, “courts must consider the

cumulative effect of the various incidents, bearing in mind

‘that each successive episode has its predecessors, [and] that

the impact of the separate incidents may accumulate . . . .'”

A-3423-08T1

Lehmann, supra, 132 N.J. at 607 (quoting Burns v. McGregor Elec.

Indus., 955 F.2 559, 564 (8th Cir. 1992) (alteration added)).

Finally, a gender-specific standard must be used to assess

whether a reasonable employee would find his or her work

environment to be hostile as a result of the offending act. Id.

at 614. This standard was premised on the Lehmann Court’s

recognition that women’s perspectives on sexual harassment are

different from men’s, and are colored by social and cultural

circumstances that have historically defined the relationship

between the two sexes. The Court recognized that conduct that

may seem relatively innocuous to a man is often viewed as

fraught with the distinct potential for aggression and violence

when viewed by a woman. Id. at 615. For this reason, courts

are obliged to examine the allegedly harassing conduct within

the full context of the plaintiff’s work climate and with

sensitivity to the particular reaction of many women to such

harassing conduct. Id. at 607.

Additionally, to establish a prima facie case,

the plaintiff may use evidence that other
women in the workplace were sexually
harassed. The plaintiff’s work environment
is affected not only by conduct directed at
herself but also by the treatment of others.
A
work
her
that
perception
woman’s
environment is hostile to women will
obviously be reinforced if she witnesses the
harassment
workers.
female
other
of
Therefore, . . . the plaintiff need not

A-3423-08T1

personally have been the target of each or
any instance of offensive or harassing
conduct. Evidence of sexual harassment
directed at other women is relevant to both
the character of the work environment and
its effects on the complainant.

[Id. at 610-11.]

Applying the Lehmann standard, we conclude that plaintiff’s

proofs raised a genuine issue of material fact about whether

Solis’s conduct subjected her to a hostile work environment. A

reasonable jury could find that Solis forced himself upon

plaintiff in a sexual manner whenever the mood struck him, that

he was undeterred by her repeated rejection of his advances, and

that, if anything, her rejection of him seemed to excite him and

make him even more bold, more aggressive and more offensive. A

reasonable jury could also find that because the second incident

occurred a mere fifteen days after the first, in an environment

in which Bayshore did precious little to protect plaintiff from

Solis’s overtly sexual behavior, plaintiff’s work environment

became one in which she lived in constant fear of repeat

incidents, thereby satisfying the “severe or pervasive”

requirement of Lehmann.

The judge’s conclusion that Solis’s conduct was not serious

enough to satisfy the demands of Lehmann unfairly diminishes the

extent to which Solis physically forced himself on plaintiff.

This is not a case where his conduct consisted only of unwanted

A-3423-08T1

and sexually-charged verbal remarks. Instead, the record

demonstrates that when Solis kissed plaintiff’s cheek, she rose

from her seat to get away from him, but he followed her and

proposed that they have an affair. As if this was not ominous

enough, he then grabbed her and forcibly kissed her by inserting

his tongue in her mouth. Worse still, when plaintiff pushed him

away, he smirked and said “this is not over.”

After this incident, a woman would not need to be

excessively timid or thin-skinned to be terrified by what might

lie ahead. The January 6, 2003 incident that we have just

described, especially when considered in conjunction with the

incident fifteen days later when Solis behaved as though nothing

had happened, told plaintiff she was “looking good,” and started

rubbing her back, is precisely the sort of conduct the Court had

in mind when it observed in Lehmann that:

[W]omen live in a world in which the
possibility of sexual violence is ever-
present. Given that background, women may
find sexual conduct in an inappropriate
setting threatening. . . . [B]ecause women
are disproportionately victims of rape and
sexual assault, women have a stronger
incentive to be concerned with sexual
behavior. Women who are victims of mild
forms
of
sexual
harassment
may
understandably worry whether a harasser’s
conduct is merely a prelude to violent
sexual assault.

[Id. at 615 (internal quotations and
citations omitted).]

A-3423-08T1

We disagree with the Law Division’s conclusion that the

conduct here was far less offensive than that found actionable

in Taylor and was more akin to the innocuous behavior the Court

deemed insufficient in Godfrey. In Taylor, the Sheriff called

the plaintiff, who was African-American, a “jungle-bunny” in the

presence of the plaintiff’s supervisor and the under-sheriff,

who then laughed. Taylor, supra, 152 N.J. at 494-95. The Court

held that the grant of summary judgment was improper because a

rational factfinder could have found that the slur, though an

isolated remark, was sufficiently demeaning “under [the]

particular

circumstances

[to]

create

hostile

work

environment.” Id. at 501.

A direct comparison of this case to Taylor is difficult

because the offending conduct is so different in nature.

Taylor involved a degrading and offensive racist remark, whereas

the conduct here involves sexually aggressive behavior.

Nonetheless, in its own way, Solis’s conduct was as demeaning to

plaintiff’s dignity and autonomy as was the offensive remark in

Taylor.

As we have observed, the judge concluded that Solis’s

conduct here was similar to that in Godfrey, where two female

seminary students alleged that they had been sexually harassed

by an elderly alumnus who lived in seminary housing. Supra, 196

A-3423-08T1

N.J. at 183. The Court upheld the trial judge’s entry of a

directed verdict for the defendant at the end of the plaintiff’s

case, holding that the conduct in question was insufficient as a

matter of law to establish a hostile environment under the LAD.

Id. at 194. The behavior by the offending male in Godfrey pales

in comparison to what Solis did here. In Godfrey, the alumnus

subjected the two students to unwanted mail and phone calls, and

on a few occasions, showed up at places where they were present.

Id. at 184-90. He never made any sexual remarks, and with the

exception of two incidents where he lightly touched one of the

plaintiffs on the arm to engage her attention, he never touched

either of them and certainly never forced himself upon them, id.

at 185-86, as Solis did here. Thus, the judge’s reliance on

Godfrey is wholly misplaced.

The Law Division’s conclusion that Solis’s conduct was not

“severe or pervasive” within the meaning of Lehmann also

improperly ignored the hierarchical relationship between

physicians and nurses existing at Bayshore. As the Court

observed in Lehmann, “‘a discrimination analysis must

concentrate not on individual incidents but on the overall

scenario.'” Lehmann, supra, 132 N.J. at 607 (quoting Andrews v.

City of Philadelphia, 895 F.2 1469, 1484 (3d Cir. 1990)). A

reasonable juror could find that the work environment at

A-3423-08T1

Bayshore was highly deferential to doctors, Solis in particular,

and that the status and rights of the nursing staff were

trivialized.

As Cohen commented, the doctors created their own bylaws

and generally “didn’t like being told what to do.” Even

persuading the doctors to attend sexual harassment training was

problematic because threats to “take away their privileges” were

viewed “as an empty threat.” In that environment, a nurse, such

as plaintiff, subjected to unwanted sexual advances would be

entitled to conclude that she would be subjected to repeated

incidents because the hospital would always side with the

doctor, especially Solis, who was the medical staff president,

thereby ignoring her complaints and her allegations.

Thus, we conclude plaintiff satisfied her burden of

establishing “discriminatory conduct that a reasonable person of

the same sex in the plaintiff’s position would consider

sufficiently severe or pervasive to alter the conditions of

employment and to create an intimidating, hostile, or offensive

working environment.” Id. at 592. We reverse the judge’s

finding that Solis’s conduct was not “severe or pervasive”

within the meaning of Lehmann. We turn now to the judge’s

conclusion that Bayshore had no vicarious liability for Solis’s

conduct.

A-3423-08T1

III.

Next, plaintiff maintains that the judge erred by

alternatively finding that because Solis was neither an employee

of Bayshore nor under its direct control, the hospital had no

liability for his conduct, as it took sufficient remedial

measures to prevent a recurrence.

Whether Solis’s status was more akin to a supervising

employee of the hospital, or instead an independent contractor,

or neither, is ultimately of little import in resolving the

issue of the hospital’s potential liability for his conduct.

Plaintiff’s employee status and defendant’s obligations to

plaintiff are not disputed. “An employer that knows or should

know its employee is being harassed in the workplace, regardless

of by whom, should take appropriate action.” Woods-Pirozzi v.

Nabisco Foods, 290 N.J. Super. 252, 269 (App. Div. 1996)

(emphasis added). The only relevant issue is whether Bayshore

adequately remediated the harm to plaintiff by taking effective

steps to prevent a recurrence of Solis’s conduct. See id. at

268-69.

The Law Division found that Bayshore’s accommodations to

plaintiff (reduced work hours, a leave of absence and

transferring her to a different location in the hospital) and

A-3423-08T1

its corrective measures with regard to Solis, were sufficient.

We conclude that a reasonable jury could find otherwise.

As the Court explained in Lehmann, the remedial intent of

the LAD “is to change existing standards of conduct

[and] . . . to remediate conditions of hostility and

discrimination, not to preserve and immunize pre-existing

hostile work environments.” Lehmann, supra, 132 N.J. at 612.

In this case, the extent to which Bayshore’s actions corrected

the hostile work environment plaintiff experienced is subject to

debate.

Apart from the BME proceedings, it is undisputed that no

disciplinary measures were taken against Solis by either the

medical staff or Bayshore, and Bayshore continues to insist that

it was unable to take any disciplinary action against Solis

because he was not a Bayshore employee. A trier of fact could

reject Bayshore’s claim that it was so constrained.

First, despite Bayshore’s argument that the medical staff

was a separate organization within the hospital, the facts show

significant integration between the medical staff and hospital.

For instance, the Board conducted reviews of the doctors,

maintained files of doctor performance and provided medical

equipment and administrative and nursing support to the medical

staff. On these facts, a factfinder could reasonably look

A-3423-08T1

beyond the titles and infer an agency relationship between Solis

and the hospital. See Pukowsky v. Caruso, 312 N.J. Super. 171,

182-83 (App. Div. 1998) (identifying factors that could support

an employer-employee relationship).

Moreover, the bylaws on which Bayshore relies to assert the

autonomy of the attending doctors also contain procedures for

seeking corrective action against a physician “[w]henever the

activities or professional conduct of any practitioner with

clinical privileges are considered to be lower than the

standards or aims of the Staff or to be disruptive to the

operations of the Hospital . . .” (emphasis added). A request

for corrective action, which could include the “reduction or

suspension of clinical privileges,” could be initiated not only

by medical staff, but by the president of the hospital and the

hospital Board. Notwithstanding this option, Bayshore elected

to apply the “impaired physicians” provisions of the bylaws, and

thereby delegated all responsibility for investigating Solis’s

conduct to the medical staff. Though it is ultimately a matter

of credibility, a trier of fact could reasonably agree with

plaintiff that Bayshore declined to seek more direct action

against Solis because he was the medical staff president and a

Board member at the time she filed her complaint.

A-3423-08T1

Moreover, Cohen confirmed that the hospital’s human

resources department could take disciplinary action against a

member of the medical staff “if they needed to,” but that it was

a “very long and tedious process.” The bylaws further reinforced

Bayshore’s authority to take corrective action and provided that

the

medical

staff

was

obligated

discharge

its

responsibilities “subject to the ultimate authority of the Board

of Trustees.” In fact, Bayshore threatened to take such action

in the letter of reprimand it issued to Choo in February 2007.

In contrast to its response to Choo, Bayshore never issued any

reprimand to Solis or ordered him to stay away from plaintiff,

even though he admitted, at the very least, to having kissed

plaintiff on the cheeks while holding her arms.

Bayshore maintains that Solis was adequately disciplined as

part of the impaired physician proceedings before the BME.

However, a jury could reasonably find that the BME proceedings

were inadequate, inasmuch as the BME’s private letter to Solis

did nothing to vindicate plaintiff’s statutory right to work in

a harassment-free environment. Cohen’s description of the BME

program and his rationale for confidentially referring Solis

there are telling: “The primary goal is to identify doctors who

are potential problems, rehabilitate them, and get them back on

A-3423-08T1

line without their patients suffering, without destroying their

careers.”

The final question to be addressed with respect to

defendant’s liability, is whether defendant’s sexual harassment

policies adequately protected plaintiff. As the Court held in

Gaines v. Bellino, 173 N.J. 301, 303 (2002):

[I]f an employer has exercised due
care in acting to prevent a sexually
discriminatory hostile work environment,
vicarious liability should not attach. The
establishment of an effective anti-sexual
harassment workplace policy and complaint
mechanism evidences an employer’s due care
and may provide affirmative protection from
vicarious liability.

Similar to the allegations in the current case, the

plaintiff in Gaines filed suit asserting that she had been

forcibly kissed by her shift supervisor. Id. at 304. According

to the record, although the employer had an anti-harassment

policy, numerous managerial staff and employees, including the

harasser, had never received any training about the policy. Id.

at 309. The Court ultimately reversed the lower court’s grant

of summary judgment in favor of the employer, because

[a]t trial a fact-finder could conclude that
the employer had in place an anti-harassment
policy in name only [and] there [were]
genuine factual issues concerning whether
[the] employer had implemented an anti-
sexual harassment workplace policy that
and
preventative
realistic
provided

A-3423-08T1

protective measures for employees in the
event that harassment occurred . . . .

[Id. at 303.]

In the case before us, the judge expressly found that

Bayshore’s anti-harassment policy was not entirely clear, yet

she absolved the hospital of liability because Solis could not

be charged with knowledge of the policy, and Solis’s conduct

consisted of nothing more than “isolated” incidents. That

conclusion did not properly recognize the affirmative

obligations the LAD imposes upon employers. Indeed, as the

Lehmann Court held:

When an employer knows or should know of the
harassment and fails to take effective
measures to stop it, the employer has joined
with the harasser in making the working
environment hostile. The employer, by
failing to take action, sends the harassed
employee the message that the harassment is
acceptable and that the management supports
the harasser.

[Lehmann, supra, 132 N.J. at 623.]

In Gaines, the Court elaborated upon the liability

principles pronounced in Lehmann, and highlighted the relevant

factors to consider when the employer’s liability derives from

an alleged failure to take remedial action. Supra, 173 N.J. at

313. Such factors include the existence of mandatory anti-

harassment training for supervisors, formal policies prohibiting

harassment in the workplace, an “unequivocal commitment from the

A-3423-08T1

highest levels of the employer that harassment would not be

tolerated” and consistent implementation of that policy. Ibid.

Based on these factors, a jury could reasonably find that like

the Gaines employer, Bayshore failed to implement an effective

anti-harassment policy.

First, the motion record suggested that the majority of

doctors at Bayshore, including Solis, were not required to

attend discrimination training. Second, Bayshore had no

procedures in place to specifically address sexual harassment in

the doctor-nurse context. The record suggests that Solis’s

“touchy-feely” behavior was well known to many individuals at

Bayshore before January 2003, yet Bayshore failed to address

Solis’s behavior at an earlier juncture.

In sum, summary judgment should not have been granted

because the degree of defendant’s control over Solis was sharply

contested. Thus, we reverse the Law Division’s grant of summary

judgment to Bayshore on plaintiff’s LAD hostile work environment

claim.

IV.

We now address plaintiff’s argument that the court erred in

summarily dismissing her retaliation claim. The judge found

that rather than retaliating against plaintiff, Bayshore did

“[e]verything [it] could to try to make [plaintiff] feel more

A-3423-08T1

comfortable, . . .” The judge also ruled that the incidents

involving Choo, though unfortunate, did not appear to have been

animated by a retaliatory motive which could be attributed to

the hospital.

The LAD deems it an unlawful practice

[f]or any person to take reprisals against
any person because that person has opposed
any practices or acts forbidden under this
act or because that person has filed a
complaint, testified or assisted in any
proceeding under this act or to coerce,
intimidate, threaten or interfere with any
person in the exercise or enjoyment of, or
on account of that person having aided or
encouraged any other person in the exercise
or enjoyment of, any right granted or
protected by this act.

[N.J.S.A. 10:5-12(d).]

To establish a prima facie case of retaliation, plaintiff was

obligated to show that: “1) [s]he was engaged in a protected

activity known to the defendant; 2) [s]he was thereafter

subjected to an adverse employment decision by the defendant;

and 3) there was a causal link between the two.” Romano v.

Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49

(App. Div. 1995).

While there are no bright-line rules as to what constitutes

an adverse employment act, relevant considerations include

whether the conduct adversely affects “the terms, conditions, or

privileges of the plaintiff’s employment or limit[s],

A-3423-08T1

segregate[s] or classif[ies] the plaintiff in a way which would

tend to deprive her of employment opportunities or otherwise

affect her status as an employee.” Marrero v. Camden County Bd.

of Soc. Servs., 164 F. Supp. 2d 455, 473 (D.N.J. 2001) (internal

quotation and citation omitted).

Plaintiff alleges that the following constituted adverse

employment action: 1) she was forced to attend the meeting with

Solis on February 14, 2003; 2) she was removed from the nurse

coordinator position which she enjoyed in the telemetry unit; 3)

Choo intimidated her from pursuing her complaint; 4) she was

forced to take two leaves of absence; 5) she was forced to work

in an environment that continued to be hostile; 6) she had to

“fight” the hospital to have her sick leave days restored; and

7) Bayshore took measures to place her in a subordinate position

to cause her to resign. These contentions are without merit for

several reasons.

First, though plaintiff was understandably ambivalent about

seeing Solis again during the February 14, 2003 meeting, and

though the wisdom of the arrangement may be questioned in

retrospect, there is no evidence that defendant organized the

meeting with a retaliatory intent. For instance, according to

Cohen, the purpose of the meeting was to facilitate a

resolution.

A-3423-08T1

Second, many of plaintiff’s assertions are belied by her

own statements. For instance, her deposition testimony suggests

that plaintiff told Teehan that she did not want to return to

her previously held position in the telemetry unit and that she

was amenable to assuming the clinical admissions coordinator

position. The record also shows that it was plaintiff’s idea to

take the leave of absence in 2003 and that she took a second

leave in 2006 at the advice of her therapist.

Third, though the incidents involving Choo in 2004 and 2007

were unfortunate, no rational fact-finder could find that they

were orchestrated by defendant to retaliate against plaintiff,

particularly given the swift action that defendant subsequently

took to reprimand Choo.

Fourth, even assuming that the work environment continued

to be hostile to her, plaintiff cannot rely upon that fact to

establish an adverse employment action. More specifically,

those hostile conditions, even if accepted as true, preexisted

her complaint, as opposed to having been subsequently created to

retaliate against her.

Fifth, plaintiff has not pointed to any corroborating

evidence to support her claim that she had to “fight”

Bayshore to have her leave days restored. See Herman v. Coastal

Corp., 348 N.J. Super. 1, 18 (App. Div.) (“bare conclusions in

A-3423-08T1

the pleadings will not defeat a meritorious application

for summary judgment”), certif. denied, 174 N.J. 363 (2002).

Finally, plaintiff relies on Clark’s alleged remarks to

Costa to suggest that defendant sought to transfer her to an

undesirable position to force her out. However, even assuming

such statements were made, based on the motion record, there is

no evidence that such actions were actually carried out.

Moreover, to constitute an adverse employment action, the act

must affect “the terms, conditions, compensation, or benefits of

her employment or [have] prejudiced her ability to take

advantage of future employment opportunities.” Hargrave v.

County of Atl., 262 F. Supp. 2d 393, 427 (D.N.J. 2003). There

is no evidence that the acts complained of affected plaintiff in

this manner.

Therefore, no rational fact finder could find that Bayshore

took adverse employment action against plaintiff. We affirm the

dismissal of plaintiff’s retaliation claim.

Next, plaintiff asserts that the judge never analyzed

whether Bayshore was entitled to summary judgment on plaintiff’s

claim that defendant “aided and abetted unlawful acts” under the

LAD, and requests a remand in accordance with Rule 1:7-4.

Bayshore agrees that the court did not directly address this

A-3423-08T1

claim, but asserts that the court implicitly dismissed

plaintiff’s aiding and abetting claim because an aider or

abettor cannot assist itself.

N.J.S.A. 10:5-12(e) prohibits any person from aiding or

abetting another in committing any acts prohibited by the LAD.

This provision is designed to impose liability upon a party,

other than the employer, for aiding and abetting the unlawful

acts of the employer. Tarr v. Ciasulli, 181 N.J. 70, 84 (2004);

Figueroa v. City of Camden, 580 F. Supp. 2d 390, 405 (D.N.J.

2008) (discussing the potential liability of a labor union for

aiding the discrimination of the employer). Plaintiff has

failed to identify any legal authority which would support the

notion that a party can be held liable for aiding and abetting

its own unlawful conduct, and thus there is no basis for

plaintiff’s aiding and abetting claim. We affirm the dismissal

of this claim.

VI.

Plaintiff also argues that because there were no disputes

of material fact regarding Solis’s conduct, his role at Bayshore

or the impact of his behavior upon her, the court erred in

dismissing her claim for intentional infliction of emotional

distress. In explaining her reasons for dismissing plaintiff’s

claim, the judge stated:

A-3423-08T1

[I] don’t find an agency relationship
[between defendant and Solis]. I don’t find
an employment relationship. So that is the
basic reason that I don’t find intentional
infliction of emotional distress or assault
and battery. I don’t find them vicariously
liable.

In addition, if I were to look at

intentional
infliction
of
emotional
distress, there appears to be no intent or
requisite disregard here of the feelings
of the plaintiff. If this happened, and I
don’t really doubt that it did, according to
[plaintiff] in the light most favorable to
her, I don’t find that was the state of mind
of [Solis].

[I] also don’t find that it is so
outrageous that it . . . exceed[ed] all
possible bounds of decency tolerable in a
civilized community . . . .

To prevail on her claim, plaintiff was required to

“establish intentional and outrageous conduct by [Solis],

proximate cause, and distress that is severe.” Buckley v.

Trenton Saving Fund Soc’y, 111 N.J. 355, 366 (1988). As to

whether defendant could be vicariously liable, agency principles

hold that an employer is responsible for any torts committed by

an employee while acting in the scope of his or her employment.

Lehmann, supra, 132 N.J. at 619. An employer can also be held

liable for torts committed by an employee outside the scope of

employment if: 1) the employer intended the conduct; 2) the

employer was negligent or reckless; 3) the conduct

violated a non-delegable duty of the employer; or 4) the

A-3423-08T1

employee acted upon apparent authority, or was otherwise

“‘aided in accomplishing the tort by the existence of

the agency relation.'” Ibid. (quoting Restatement (Second) of

Agency § 219).

Applying these standards, and drawing all inferences in

favor of plaintiff, Brill, supra, 142 N.J. at 541, the grant of

summary judgment on this claim was improper. As an initial

matter, and as we have already discussed, the precise nature of

Solis’s relationship to, and role within, Bayshore was sharply

contested. Thus, the court bellow erred in summarily finding

that Solis could not have had an agency relationship with

defendant.

As to the underlying tort, plaintiff was required to show

that Solis either “intend[ed] both to do the act and to produce

emotional distress,” or acted “in deliberate disregard of a high

degree of probability that emotional distress will follow.”

Buckley, supra, 111 N.J. at 366. There is little in the motion

record from which Solis’s mental state can be discerned, and it

is unclear which facts the judge relied on to conclude that

Solis did not act with the requisite mental state; however, a

reasonable juror could infer that Solis acted intentionally and

without regard to plaintiff’s reaction. At the very least, the

A-3423-08T1

uncertainty in the motion record regarding Solis’s motivations

militated against the summary dismissal of plaintiff’s claim.

The second factor required plaintiff to show that Solis’s

conduct was extreme, outrageous and exceeded all bounds of

decency. Ibid. Notably, courts have held that demeaning and

discriminatory behavior in the work environment, particularly in

the employer-employee context, may weigh in favor of extreme and

outrageous conduct. Taylor, supra, 152 N.J. at 512. A

reasonable juror could find that Solis’s conduct was especially

egregious because of the power dynamics within the hospital. We

disagree with the court’s conclusion that Solis’s conduct did

not rise to the level of being beyond the “bounds of decency.”

Finally, the level of emotional distress must be “so severe

that no reasonable [person] could be expected to endure it.”

Buckley, supra, 111 N.J. at 368. A person will not be permitted

to recover for “idiosyncratic emotional distress that would not

be experienced by average persons.” Taylor, supra, 152 N.J. at

516. Actionable levels of distress may include “‘any type of

severe and disabling emotional or mental condition which may be

generally recognized and diagnosed by professionals trained to

do so,'” and may include, but is not limited to, PTSD. Id. at

514 (quoting Poole v. Copland, Inc., 481 S.E.2d 88, 93 (N.C. Ct.

App. 1997)). The motion record included sufficient evidence to

A-3423-08T1

support plaintiff’s claim that she experienced significant

distress, including PTSD.

In sum, Bayshore was not entitled to summary judgment on

plaintiff’s intentional infliction of emotional distress claim,

as plaintiff’s proofs were sufficient to raise a genuine issue

of material fact.

VII.

Last, we address plaintiff’s argument that the court erred

in dismissing her claim for assault and battery. For reasons

similar to those we have discussed in relation to the dismissal

of plaintiff’s intentional infliction of emotional distress

claim, we agree. The judge did not directly address the

elements of this tort, instead ruling that plaintiff could not

pursue her assault and battery claim against Bayshore because

there was no agency relationship.

Assault and battery consists of two components. A person

is liable for assault if he or she acts with the intent “to

cause a harmful or offensive contact with the person of the

other or a third person, or an imminent apprehension of such a

contact” and “the other is thereby put in such imminent

apprehension.” Leang v. Jersey City Bd. of Educ., 198 N.J. 557,

591 (2009) (internal quotation and citation omitted). “The tort

of battery rests upon a nonconsensual touching.” Ibid. Here, a

A-3423-08T1

rational juror could find that Solis intentionally and forcibly

kissed plaintiff against her wishes, and that she presented

sufficient evidence to establish a claim for assault and

battery.

Notably, Bayshore does not dispute that Solis’s conduct, if

proven, would constitute assault and battery; only that it could

not be held vicariously liable for Solis because he was not its

employee. However, as we have already concluded, a reasonable

juror could have found otherwise based on the facts presented.

Consequently, we reverse the dismissal of plaintiff’s assault

and battery claim.

VIII.

Affirmed in part, reversed in part and remanded.

A-3423-08T1