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SAMPLE SUMMARY JUDGMENT BRIEFThe following is a sample summary judgment brief to the Superior Court of New Jersey, Law Division, drafted by On-Point Paralegal Services, LLC. Personal information has been omitted. We have done our best to preserve the formatting of the brief when converting it to html code for display on the Internet. TABLE OF CONTENTS TABLE OF AUTHORITIES ……………………………………………………………….…. 3 RESPONSE TO STATEMENT OF FACTS …………………………………………………. 4 COUNTER-STATEMENT OF FACTS …………………………………………………….... 9 ARGUMENT POINT I POINT II POINT III POINT IV
POINT VI POINT VII
TABLE OF AUTHORITIES
Cavuoti v. New Jersey Transit Corp., Correia v. Sherry, Lehmann v. Toys R Us, Inc., Millison vs. E.I. du Pont de Nemours & Co., Parker-Jones vs. Eagle Hardware & Garden, Inc., New Jersey Statutes: N.J.S.A. 2A:61B-1 ……………………………………………………………………………. 14 N.J.S.A. 2A:61B-1(a)(1) …………………………………………………………….………… 14 N.J.S.A. 2A:61B-1(a)(2) …………………………………………………………….………… 14 N.J.S.A. 2A:61B-1(h) ………………………………………………………………..………… 14 N.J.S.A. 10:5-12.6 N.J.S.A. 34:15-8 ……………………………………………………………………..………… 19 N.J.S.A. 10:5-1 to 42
Restatement (Second) of Agency §219(1) (1958) ……………………………………………... 20 RESPONSE TO STATEMENT OF FACTS Omitted due to length. COUNTER STATEMENT OF FACTS 1. In early October 2001, while Ms. XXXXXX was in the
XXXXXX manager's office reviewing her schedule, Mr. XXXXXX came in, closed
and locked the door, and started to physically assault and molest her.
He fondled her breasts and forced himself on her. This incident was reported
to Gloria XXXXXX, one of the managers at XXXXXX (see Affidavit of Kathleen
I. XXXXXX). 2. In October 2001, Mrs. XXXXXX, the mother and grandmother
of the plaintiffs, contacted Gloria XXXXXX, the manager, and advised her
of Mr. XXXXXX's actions. Ms. XXXXXX indicated that she believed the plaintiff,
Katherine XXXXXX, had initiated, but she was going to look into the matter
and get back to her. She never did (see Affidavit of Kathleen I. XXXXXX). 3. On October 20, 2001, while Melissa XXXXXX, an 11-year-old
mentally disabled girl, was at XXXXXX waiting for her aunt to finish working,
Mr. XXXXXX took her to into the manager's office and kissed her and offensively
touched her. He later took her to a motel and abused her (see Affidavit
of Kathleen K. XXXXXX.). 4. In December 2001, Mr. XXXXXX, again, offensively touched
Katherine XXXXXX (see Affidavit of Kathleen I. XXXXXX). 5. As of September 2001, Mr. XXXXXX was maintaining liquor
on the premises, modifying schedules so that he would only work with female
employees, and destroying applications for male employees (see Affidavit
of Patricia XXXXXX). 6. On October 20, 2001 and October 24, 2001, while Melissa
XXXXXX was at XXXXXX waiting for her aunt, Katherine XXXXXX, to complete
work, Mr. XXXXXX took her to a motel and sexually abused and molested
her (see Affidavit of Kathleen XXXXXX and police report). 7. In October 2001, at a Halloween party at Gloria XXXXXX'
home, the co-manager of XXXXXX), XXXXXX XXXXXX went around licking the
faces of other female employers and asked female workers under the age
of 15 years old to go to a motel with him (see Affidavit of Patricia XXXXXX). 8. In November 2001, Mr. XXXXXX grabbed the breasts of
Ms. XXXXXX (see police report). 9. In November 2001, Mr. XXXXXX had unsolicited contact
with another female employee, age 15 years old, Victoria XXXXXX (see police
report - statement of XXXXXX). 10. In December 2001, Mr. XXXXXX, again, attempted to
attack Katherine XXXXXX, also in the XXXXXX manager's office. Mr. XXXXXX
grabbed her breasts and attempted to kiss her (see Affidavit of Kathleen
I. XXXXXX). 11. In December 2001, Mr. XXXXXX, plaintiff, Katherine
XXXXXX's boyfriend at the time, also complained to the manager, Gloria
XXXXXX, of the conduct of Mr. XXXXXX (see police report). 12. Between November 16, 2001 and November 30, 2001,
the XXXXXX store manager, Mr. XXXXXX, had thirty-one violations that occurred
on shifts where he was the manager in charge. This is where he allowed
15 year olds to work past 7:00 p.m. on each shift (see copy of December
3, 2001 reprimand letter). 13. On or about October 24, 2001, defendant XXXXXX was
at XXXXXX. Melissa XXXXXX was there because her aunt was working that
day. XXXXXX decided to take Melissa and XXXXXX for dinner at a restaurant
in East Brunswick, New Jersey (see police report AK18). Defendant XXXXXX
went to XXXXXX on October 24, 2001 and attempted to get Katherine XXXXXX
out of work so she could go out with him and Melissa (AK21). Katherine
XXXXXX did not want to leave work but XXXXXX removed Melissa from XXXXXX
and went to dinner. They then returned to XXXXXX where they remained for
approximately 1 ½ hrs. after dinner (AK22). During that time, XXXXXX
went into the back office of XXXXXX to speak to one of the manager (see
police report AK24). 14. XXXXXX alleges XXXXXX XXXXXX was having sexual intercourse
in the XXXXXX office during the course of his employment with 15-year-old
employees (AK30). 15. XXXXXX admitted that others at XXXXXX heard females
actually tell XXXXXX to stop (AK3). 16. Melissa XXXXXX told XXXXXX, two to three days after
the incident, what XXXXXX XXXXXX did to her (AK38). 17. On October 20, 2001, at a motel in Edison, New Jersey,
the defendant XXXXXX XXXXXX forced Melissa XXXXXX to have sex with him
(AK59). 18. XXXXXX was employed at XXXXXX from March 2001 to December
2001 (AK78). XXXXXX was aware that XXXXXX was having sexual intercourse,
tag-teaming women in the XXXXXX manager's office (AK79). 19. Katherine XXXXXX, on many occasions, would bring
Melissa XXXXXX to XXXXXX while she was working, and Melissa would stay
for three to four hours at a time (AK81). 20. According to XXXXXX, there were numerous occasions
where XXXXXX was having and attempting to have sex with employees of XXXXXX
(AK97). XXXXXX had a reputation for attempting to force female employees
of XXXXXX to have sex with him. XXXXXX stopped working at XXXXXX because
the management at XXXXXX did not want to listen to him. He complained
to Gloria XXXXXX about XXXXXX's conduct, and Gloria XXXXXX did not want
to listen (AK98). As a result of Ms. XXXXXX' not listening about XXXXXX's
activities, he ended up leaving the employ of XXXXXX. 21. Victoria XXXXXX began working at XXXXXX in November
2001 (AK64). On one occasion, XXXXXX took Ms. XXXXXX into the manager's
office at XXXXXX and grabbed her left breast (AK65). As a result of him
grabbing her, she kicked him in his groin (AK65). She then told a Patricia
XXXXXX, a one-time employee of XXXXXX, of what XXXXXX did. Ms. XXXXXX decided
not to quit after the incident because she needed the money (AK66). When
Victoria XXXXXX told Patricia XXXXXX about what XXXXXX did, her response
was, "why do you think we quit?" (AK66). 22. Patricia XXXXXX claims that XXXXXX was always trying
to rub up against people and called himself a "playboy" and
that he could get any girl (AK68). He was always trying to touch the female
workers, including trying to touch their legs and shoulders (AK68). 23. On one Halloween party with many of the XXXXXX employees
at Gloria XXXXXX' home, the manager of XXXXXX, XXXXXX asked Ms. XXXXXX
to go to a motel room with him. Ms. XXXXXX was 15 years old at the time
(AK68). That night at the Halloween party in front of Gloria XXXXXX, XXXXXX
was licking people's faces (AK69). 24. A couple of boys would come in and fill out applications
for jobs at XXXXXX, and XXXXXX would rip them up and throw them out; he
only wanted female employees (AK69). Patricia XXXXXX started working at
XXXXXX in September 2001, and claims that she observed XXXXXX's conduct
since that time. She noticed this happening in September 2001 until she
left. In addition, XXXXXX would change around the work schedule so that
he was working with only female employees (AK69). 25. Almost on a daily basis, XXXXXX would change the
schedule because he did not like when the guys were around the girls.
XXXXXX claimed that it is trouble when, in fact, it was XXXXXX that was
actually causing the trouble (AK70). All female employees at XXXXXX were
mad about what was happening. 26. A lot of female employees were leaving as a result
of XXXXXX's conduct (AK70). At least five female employees had left between
September and December 2001, as a result of XXXXXX's conduct and the way
he was treating them because of touching or licking, or changing the schedule
(AK70). 27. XXXXXX would bring liquor into the XXXXXX restaurant
and tried to give it to 15-year-old female employees (AK72). XXXXXX kept
liquor in the walk-in refrigerator at XXXXXX and was always trying to
give it to the girls during the course of their employment. His plans
were to get the girls drunk and bring them back to a hotel or have sex
with them in the office (AK72). XXXXXX had offered vodka and beer to Patty
Aguliari and others, which he kept in the refrigerator where the XXXXXX
cheese is maintained (AK72). 28. XXXXXX would offer the liquor, vodka and beer only
to the female employees and not to the male employees during and after
work at the restaurant. When other male employees attempted to try to
take his liquor, XXXXXX would get upset because the liquor was only for
him and the girls (AK72). 29. Several of the male workers quit because XXXXXX was only scheduling for once a week and scheduling the girls for all the other days (AK73). LEGAL ARGUMENT I. PLAINTIFFS' COMPLAINT CONTAINS CLAIMS IN ADDITION TO THOSE SET FORTH BY THE DEFENDANTS Defendants XXXXXX and XXXXXX International argue that
plaintiffs' complaint sets forth only three employment related theories
of recovery. [Db-1, at the Preliminary Statement.] For clarification,
plaintiffs' complaint has three separate counts, but their complaint is
not as limited as the defendants suggest. Plaintiffs also have claims implied in the complaint for sexual contact with a minor in violation of N.J.S.A. 2A:61B-1. Under this statute, "'Sexual abuse' means an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult." N.J.S.A. 2A:61B-1(a)(1). Also, "'Sexual contact' means an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of sexually arousing or sexually gratifying the actor." N.J.S.A. 2A:61B-1(a)(2). As to damages,
II. PLAINTIFFS' CLAIMS FOR NEGLIGENT HIRING (FIRST COUNT) SHOULD NOT BE DISMISSED BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT THE CORPORATE DEFENDANTS KNEW OR SHOULD HAVE KNOWN THAT THE MOLESTATION WAS OCCURING The defendants have accurately set forth law in New
Jersey as to claims of negligent hiring and retention. Plaintiffs are
required to prove foreknowledge on behalf of the corporate defendants
showing that they knew or should have known that Mr. XXXXXX had propensities
to commit such acts. There is a plethora of evidence to support plaintiffs'
claims of negligent supervision and retention. The corporate defendants
were put on notice of Mr. XXXXXX's illegal activities and they did nothing
to stop him. They thereby fostered an environment that allowed for the
molestation of underage female employees. The evidence supporting this claim includes the fact
that Mr. XXXXXX advised Gloria XXXXXX, the general manager, in December
2001 that Mr. XXXXXX was having sex with teenage female employees in his
office. Ms. XXXXXX was also made aware that Mr. XXXXXX was keeping beer
and vodka in the XXXXXX refrigerator and passing them out to underage
employees during work hours. Plaintiff Kathleen XXXXXX advised Ms. XXXXXX in October
2001 that Mr. XXXXXX had attacked her daughter. Ms. XXXXXX failed to take
any action. Several weeks later, Mr. XXXXXX kissed and fondled Melissa
XXXXXX in the manager's office at XXXXXX. He then drove her to a motel
and sexually assaulted her again. The evidence also shows that in October 2001, Mr. XXXXXX,
while at a party hosted by Ms. XXXXXX, went around licking the faces of
15-year-old girls. In November 2001, Mr. XXXXXX sexually attacked Patricia
XXXXXX in the manager's office at XXXXXX. In November 2001, Mr. XXXXXX
offensively touched Victoria XXXXXX in the manager's office at XXXXXX.
In December 2001, XXXXXX XXXXXX sexually assaulted Kathleen I. XXXXXX
in the manager's office at XXXXXX. Ms. XXXXXX was also aware that Mr. XXXXXX was destroying
applications of male employees and only scheduling female employees on
his shift. This resulted in several male employees quitting. Approximately
five female employees quit between August 2001 and December 2001 because
of Mr. XXXXXX's treatment of them. Mr. XXXXXX had over 31 violations for
keeping underaged workers after hours during this same time. Notwithstanding the foregoing, the corporate defendants
argue that none of them were aware of XXXXXX's conduct. That is simply
an unattainable position to take. The corporate defendants had notice,
constructive or otherwise, once Ms. XXXXXX was put on notice of the actions
as before mentioned. The court is referred to Cavuoti v. New Jersey Transit
Corp., 161 N.J. 107 (1999), in this regard. In Cavuoti, the Supreme Court held that corporate defendants are officially considered to be on notice of harassment once a supervisor is complained to who has the duty to so inform the corporate hierarchy. In order for there be this constructive knowledge, which the caselaw suggests is sufficient in order to impose punitive damages under the LAD against corporate defendants, Cavuoti requires that the supervisor in question meet the following threshold:
Ms. XXXXXX meets this criteria. Both she and Mr. XXXXXX
had the authority to hire and fire and discipline employees for sexual
harassment if they were so inclined to do so. The defendants have provided
the court no evidence to the contrary, and during summary judgment motions
the issues are to be construed in a light most favorable to the plaintiffs
as the non-moving parties. Under Cavuoti, any employee who has been delegated
these duties constitutes "upper management" at the company.
"[I]t is fair and reasonable to conclude that [f]or an employee on
the second tier of management to be considered a member of 'upper management,'
the employee should have either (1) broad supervisory powers over the
involved employees, including the power to hire, fire, promote, and discipline,
or (2) the delegated responsibility to execute the employer's policies
to ensure a safe, productive and discrimination-free workplace."
Id. at 128. Accordingly, pursuant to Cavuoti, supra, the corporate
defendants had knowledge of the sexual harassment from the first occasion
that Ms. XXXXXX was made aware of it. In fact, plaintiffs' position, since
it was Mr. XXXXXX himself who was the perpetrator, that the corporate
defendants had such knowledge dating from the very first instance of sexual
harassment by Mr. XXXXXX. III. THE WORKERS' COMPENSATION ACT DOES NOT BAR THE CLAIMS BECAUSE THEY PERTAIN TO INTENTIONAL CONDUCT As stated by the corporate defendants at Db-22, the
New Jersey Supreme Court has already held that the New Jersey Workers'
Compensation Act DOES NOT bar claims against the employer for intentional
conduct. Millison vs. E.I. du Pont de Nemours & Co., 101 N.J. 161,
165 (1985). In Millison, the plaintiffs alleged that the employer-defendant,
while having knowledge of the adverse health risks associated with asbestos
use and exposure, deliberately exposed employees to a dangerous work environment
having such exposure. Id. at 165. The Supreme Court held that the claims
against the employer were not barred as they relate to injuries sustained
as a result of the employer's "fraudulent concealment". Id.
at 166. Likewise, in the case at bar, the corporate defendants
had knowledge of the molestation of teenage girls that was transpiring
on the premises during work hours in the manager's office. Ms. XXXXXX,
as explicitly set forth in previous points, was the general manager. The
teenage employees along with their parents complained directly to her
and she did not take any action whatsoever. The molestation continued
after the complaints, including an attempt to rape an 11 year old girl
who was waiting for one of the employees' shifts to end. This was an intentional
disregard of the known consequences of molesting minor children, similar
to the intentional disregard of the known health risks in Millison, supra. In sum, allowing the claims to advance against the corporate
defendants will further the purposes of the Workers' Compensation Act.
The Act explicitly provides that all claims of injuries due to negligence
fall within the ambit of the Act, but that injuries related to intentional
conduct may be pursued separately. The Act provides, verbatim: "If
an injury or death is compensable under this article, a person shall not
be liable to anyone at common law or otherwise on account of such injury
or death for any act or omission occurring while such person was in the
same employ as the person injured or killed, except for intentional wrong."
N.J.S.A. 34;15-8 (Emp. Supp.). Finally, the only law the corporate defendants cite to support their position that the Workers' Compensation Act bars all claims of negligent hiring is three federal cases that are not binding upon this court. There are no similar New Jersey cases to support that position, and plaintiffs respectfully contend that that is not the law. The negligent hiring claims may be pursued. IV. PLAINTIFF XXXXXX HAS DEMONSTRATED A CAUSE OF ACTION UNDER THE NJLAD
The leading case on employer liability under the LAD
for acts of sexual harassment by its employees is Lehmann v. Toys R Us,
Inc., 132 N.J. 587 (1993). The LAD, of course, is codified at N.J.S.A.
10:5-1 to 42. In Lehmann, our Supreme Court held that principles of
agency will determine whether the employer should be held liable for acts
of sexual harassment by its supervisors. Id. at 619. "Applying those
principles [as set forth in Restatement (Second) of Agency §219 (1958)],
we declare that under §219(1) an employer whose supervisory employee
is acting within the scope of his or her employment will be liable for
the supervisor's conduct in creating a hostile work environment."
Id. The stated section of the Restatement provides that, "A master
is subject to liability for the torts of his servants committed while
acting in the scope of their employment." Restatement (Second) of
Agency §219(1) (1958). It cannot be said that fondling and groping teenage female employees does not constitute sexual harassment and that doing so during work hours, in the manager's office, does not constitute being within the scope of the supervisor's employment. As set forth in detail in previous points, Mr. XXXXXX disposed of all applications by male employees and created an environment where he was surrounded, almost exclusively, by teenage females. He used his employment resources as a supervisor to create this environment and used his supervisor position as a tool of molesting young children. All of this was done on premises, during work hours.
The corporate defendants are also liable to the plaintiffs
for failing to have effective anti-sexual harassment polices in place.
Lehmann provides that an employer may show that it was not negligent by
showing that it had anti-sexual harassment polices in place, but Lehmann
also provides that those policies must have been effective and meaningful.
"In light of the known prevalence of sexual harassment, a plaintiff
may show that an employer was negligent by its failure to have in place
well-publicized and enforced anti-harassment policies, effective formal
and informal complaint structures, training, and/or monitoring mechanisms."
Id. at 621. The anti-sexual harassment policies at issue herein were
neither enforced or effective. Ms. XXXXXX as the general manager was advised
that Mr. XXXXXX was molesting underage female employees during work hours
and on the premises, but she did nothing about it. She also knew that
liquor was kept on the premises to provide to these underage females.
Mr. XXXXXX was the individual in charge of enforcing the anti-harassment
polices and she failed miserably at that task. The corporate defendants
are liable under these circumstances. They had constructive notice of
the harassment once Ms. XXXXXX was provided this information. This is besides the fact that there is no evidence that
XXXXXX even had a sexual harassment policy in effect at the time. Neither
Ms. XXXXXX or Mr. XXXXXX testified that they had knowledge of such polices
or that they ever received related training. Moreover, the plaintiff-employees
have submitted affidavits along herewith to the effect that they were
never advised of the existence of such policies. "Similarly, given
the foreseeability that sexual harassment may occur, the absence of effective
preventative mechanisms will present strong evidence of an employer's
negligence." Id. at 622. Accordingly, the corporate employers in this matter are liable to the plaintiffs in damages no matter how this matter is viewed. V. XXXXXX INTERNATIONAL CAN BE HELD LIABLE FOR THE PLAINTIFFS' CLAIMS BECAUSE IT WAS THE EMPLOYER While XXXXXX may be the leaseholder, it was XXXXXX who controlled the manner of the workers' performance and who constituted the plaintiffs' employer. The employees wore the XXXXXX logo on their uniforms, and XXXXXX is only the entity which runs the establishment. It is XXXXXX that is the franchise, and XXXXXX pays fees to XXXXXX, and XXXXXX dictates the manner of food and service. In addition, XXXXXX comes under the XXXXXX corporate criteria for the hiring, firing and retaining, supervising and managing its employees. VI. PUNITIVE DAMAGES ARE BOTH AVAILABLE AND APPROPRIATE IN THIS CASE Punitive damages are permitted under the LAD. "An
employer who … discriminates against an employee … shall be
liable to the employee for … punitive damages …" N.J.S.A.
10:5-12.6. In Cavuoti v. New Jersey Transit Corp., 161 N.J. 107 (1999),
the Supreme Court held that a corporate defendant was put on notice of
harassment from the minute that a person having a managerial position
was advised of the harassment, and that such notice is sufficient to support
an award of punitive damages under the LAD. It has already been set forth above that plaintiffs'
claims are that both the assistant manager of XXXXXX, Defendant XXXXXX,
and the manager, Gloria XXXXXX, where aware of XXXXXX's conduct. There
is no question that XXXXXX employed Mr. XXXXXX. Attached is the employment
agreement with XXXXXX and Mr. XXXXXX dated February 15, 2001. It indicates
that he was hired as an assistant manager. VII. PLAINTTIFFS CONSENT TO DISMISSAL OF ALL LOSS OF CONSORTIUM CLAIMS AS THEY PERTAIN TO THE LAD As set forth above, the LAD claims are not the plaintiffs' only claims. Plaintiffs consent to dismissal of the loss of consortium claims as they pertain to the LAD, not as they pertain to the other causes of action. Loss of consortium claims may be brought by a parent of a minor child concerning loss of companionship and services of the child. See, e.g., Correia v. Sherry, 335 N.J. Super. 60, 62 (Law Div. 2000). CONCLUSION The plaintiffs may recover on their LAD claims against the corporate defendants because as a matter of law they had constructive knowledge that teenage and adolescent females were being sexually harassed and molested on the premises during work hours by a supervisor. Punitive damages are appropriate under those circumstances. LAW OFFICES OF MICHAEL XXXXXX, ESQ. Dated:
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