In Pine v. Cnty. of Ocean, 2024 WL 2785516 (D.N.J. May 30, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s sex discrimination claim asserted under the New Jersey Law Against Discrimination (LAD).
Here, the central issue was whether the alleged harasser was plaintiff’s supervisor. From the decision:
The County cannot be vicariously liable for Vicari’s acts unless Plaintiff first establishes that Vicari was her supervisor. When Plaintiff received a promotion in June 2004, she alleges that Vicari “insinuated that if she reported him [for sexual harassment], she would not get any future promotions.” (Am. Compl. ¶ 32.) Further, Plaintiff claims Vicari required her “to take him to work events,” calling Plaintiff at all “hours of the night asking that she do extra work,” and when she questioned Vicari about these requests, he reminded Plaintiff “it was part of her job” and that “he was the boss.” (Id. ¶¶ 20, 22, 27, 32, 33, 34, 40.) Lastly, Plaintiff claims that Vicari stopped her ability to transfer departments. (Id. ¶¶ 116, 117.) Based on the Amended Complaint, at this preliminary pre-discovery juncture of the ligation, the allegations are sufficient to survive a motion to dismiss, as the Amended Complaint adequately alleges that Plaintiff could reasonably perceive that Vicari had the power to negatively impact her employment. See Entrot, 819 A.2d at 459 (noting that evidence showing the alleged harasser “controlled the workplace in subtler and indirect ways” was sufficient “so long as the effect was to restrict the victim-employee’s freedom to ignore sexually harassing conduct). The fact that Plaintiff has not alleged that Vicari had exclusive authority to fire Plaintiff or involvement in her day-to-day activities is not dispositive of his supervisor status. See Bonenberger v. Plymouth Tp., 132 F.3d 20, 25 (3d Cir. 1997).
To establish vicarious liability, Plaintiff must also allege that Vicari was aided in accomplishing his sexual harassment by the power delegated to him by the County. See Lehmann, 626 A.2d at 462. The Lehmann Court outlined the analysis for determining whether a supervisor who creates a hostile work environment was enabled by the employer’s delegated authority. Courts should consider whether the employer delegated authority to the supervisor and the supervisor’s exercise of that authority resulted in an LAD violation that injured the plaintiff. Id. Applying this analysis to the case at bar, Plaintiff alleges that the County delegated authority to Vicari to oversee the Office of Senior Services where Plaintiff worked. (Am. Compl. ¶ 14.) Vicari used this authority derived from the County to aid in his sexual harassment of Plaintiff when he would “rub into Plaintiff[’]s breasts” or “put his hand on Plaintiff’s thigh under the table” and then threatened to withhold promotions if Plaintiff reported him.
Based on this, the court concluded that plaintiff’s amended complaint “includes sufficient factual allegations to support Plaintiff’s claim that the County is vicariously liable for Vicari’s sexual discrimination under the LAD” and accordingly, denied defendant’s motion to dismiss that count.