Baliko v. Stecker

• Decision Date: 20 July 1994
• Docket Number: AFL-CIO and S
• Citation: 645 A.2d 1218,275 N.J.Super. 182
• Parties: , 65 Fair Empl.Prac.Cas. (BNA) 899, 63 USLW 2123 Christine BALIKO, Claudia Case and Kelly Carroll, Plaintiffs-Respondents, v. Joseph P. STECKER, International Union of Operating Engineers, Local 825, A, B, C, D, & RH:tephen Frostick, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 182

275 N.J.Super. 182

645 A.2d 1218, 65 Fair Empl.Prac.Cas. (BNA)

899, 63 USLW 2123

Christine BALIKO, Claudia Case and Kelly Carroll Plaintiffs-Respondents, v. Joseph P. STECKER, International Union of Operating Engineers, Local 825, A, B, C, D, & RH: AFL-CIO and Stephen Frostick, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued March 15, 1994.

Decided July 20, 1994.

Wayne J. Positan, Roseland, for appellants Joseph P. Stecker and Stephen Frostick (Lum, Hoens, Conant, Danzis & Kleinberg, attorneys; Mr. Positan, of counsel; Domenick Carmagnola and Dana D. Farinella, on the brief).

William J. Riina, Newark, for appellant International Union of Operating Engineers, Local 825 (Wilson, Elser, Moskowitz Edelman & Dicker, attorneys; Mr. Riina, of counsel; John F. Tratnyek, on the brief).

Linda A. Palazzolo, Roseland, for respondents (Connell, Foley & Geiser, attorneys; Ms. Palazzolo, of counsel; Timothy E. Corriston and Marjorie O. Smith, on the brief).

Before Judges PRESSLER, BROCHIN and KLEINER.

The opinion of the court was delivered by

BROCHIN, J.A.D.

Defendants Joseph P. Stecker and Stephen R. Frostick are members of defendant Local 825, a union local affiliated with the International Union of Operating Engineers. The local had a contract dispute with George Harms Excavating Company, a corporation which is affiliated with George Harms Construction Company. The latter corporation was a general contractor for construction of a portion of Route 24. In order to influence George Harms Excavating Company, the local picketed a construction site which George Harms Construction Company maintained near Route 24 in Morristown, New Jersey. Plaintiffs Christine Baliko, Claudia Case, and Kelly Carroll are construction workers employed by George Harms Construction Company at its Morristown construction site. They have filed this suit to recover damages from defendants as compensation for defendants' conduct on the picket line.

Plaintiffs' complaint alleges claims for intentional infliction of emotional distress, intentional interference with contractual relations and with prospective economic advantage, and sexual harassment in violation of the New Jersey Law Against Discrimination (referred to as "LAD"), N.J.S.A. 10:5-1 to -42. Defendants moved for summary judgment dismissing the complaint. The motion judge dismissed all of plaintiffs' claims except those based on the defendants' alleged violations of the LAD. Defendants moved for leave to appeal from the motion judge's refusal to dismiss plaintiffs' claims for sexual harassment. Plaintiffs cross-moved for leave to appeal from the dismissal of all but their sexual harassment claims. We granted defendants' motion and we denied plaintiffs'. ¹ The sole issue before us on this appeal is therefore whether the motion judge was correct in declining to hold that, as a matter of law, defendants' picket line activities, as described by plaintiffs, did not violate the LAD.

Since we are reviewing the denial of defendants' motion for summary judgment, we must accept plaintiffs' descriptions of defendants' conduct as true and give plaintiffs the benefit of all inferences from the facts that can reasonably be drawn in their favor. R. 4:46-2; Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75, 110 A.2d 24 (1954); Antheunisse v. Tiffany & Co., Inc., 229 N.J.Super. 399, 402, 551 A.2d 1006 (App.Div.1988), certif. denied, 115 N.J. 59, 556 A.2d 1206 (1989). Viewed from that perspective, the record depicts the following facts.

During the course of their work and at the beginning and end of each workday, plaintiffs had to pass defendants' picket line in order to go to and from the George Harms Construction Company construction site. As plaintiffs walked or drove past the picket line and through the gate at the construction site, pickets who were members of the defendant local, including defendants Stecker and Frostick, intentionally harassed the plaintiffs with sexually derogatory gestures and exclamations.

Plaintiff Baliko accuses defendant Stecker of harassing her as she passed by making "foul, vulgar and obscene gestures," including grabbing and pointing to his genitals and then putting his hand to his mouth as if inviting her to perform fellatio. She claims that she observed Stecker conducting himself in this way for the first time on July 5, 1990, and that he repeated this conduct toward her on July 27, August 2, 8, 9, 10, 14, 22, and 29, September 6, 1990, and July 16, and September 11, 1991. Baliko also alleges that, on one occasion, the vice-president of Local 825 called her a "stupid son-of-a-bitch" and that on another occasion an unidentified picket grabbed his genitals while she was going out of the gate.

Plaintiff Case also claims that defendant Stecker and other members of Local 825 abused and harassed her as she entered and exited the front gate of the Route 24 construction site. Some time shortly after June 29, 1990, a union member yelled at her, "I bet she has no muff, and if she does, it's very small." Then or on another occasion, a picket called her an "ugly bitch." On July 31, 1990, Stecker yelled to her, "Are you going to give them a blow job?," and asked the male co-employees she was with, "How is she? She can't be very good because her nose is too big--it must get in the way!" On August 7, 1990, Stecker shouted, "That's the ugliest woman I've ever seen." Later that day, another member of Local 825 exclaimed in Case's presence, "That stupid cunt isn't saying anything. She has no balls like the rest of them." On September 5, 1990, a member of Local 825 yelled out to Case while she was riding in the back of a work van, "That's where she belongs, in the back of the truck." Later that day, while she was riding in the van to a different part of the job, another member of the local made hand gestures which were intended to refer to fellatio. On June 4, 1991, the vice-president of the local told Case, "Here's Miss America. She's so gorgeous, you have to hold back all the guys." On June 6, 1991, another member of the local said to Case, "Is Willie your boyfriend? Black man, white car, white wife. The All-American dream." On June 7, 1991, the local's vice-president said to Case, "Here comes my woman. How would you like your million, in cash or check?" On June 10, 1991, he exclaimed in her presence, "Here comes my beauty queen. She's so gorgeous everyone wants to sexually harass her. Watch out or she may sue you." That same day, a person whom Case did not identify, but who was presumably a picket, told her she "looked like a guy." On June 11, 1991, Stecker exclaimed on seeing Case, "What a beautiful woman!" On June 18, 1991, the local's vice-president called out to Case, "What a beautiful girl," and someone else, presumably a picket, said to her, "You are ugly!"

Plaintiff Kelly Carroll accuses defendant Stephen Frostick of abusing and harassing her on January 14, 1991. As she was driving out of the construction site, Frostick yelled something at her that she did not hear because her car windows were closed. Then he twice pointed to his genitals. Several days later, as she walked through the gate, one of the pickets yelled, "What an ugly broad! I'd never go out with an ugly chick like that. Boy, are you ugly!"

Plaintiffs contend that these facts, construed most strongly in their favor since we are reviewing the denial of defendants' motion for summary judgment, show a violation of N.J.S.A. 10:5-12, which, insofar as pertinent, states:

It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

....

b. For a labor organization, because of the ... sex of any individual ... to discriminate in any way ... against any employer or any individual employed by an employer....

....

e. For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so.

Plaintiffs contend that the local has violated paragraph "b" and the individual defendants, paragraph "e."

Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601-02, 626 A.2d 445 (1993), establishes sexual harassment as a form of sex discrimination that violates N.J.S.A. 10:5-12. The opinion describes two categories of sexual harassment:

Quid pro quo sexual harassment occurs when an employer attempts to make an employee's submission to sexual demands a condition of his or her employment. It involves an implicit or explicit threat that if the employee does not accede to the sexual demands, he or she will lose his or her job, receive unfavorable performance reviews, be passed over for promotions, or suffer other adverse employment consequences. Hostile work environment sexual harassment, by contrast, occurs when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.

....

[T]he harassing conduct need not be sexual in nature; rather, its defining characteristic is that the harassment occurs because of the victim's sex. See Muench v. Township of Haddon, 255 N.J.Super. 288 (App.Div.1992) (holding defendant employer liable for hostile work environment sexual harassment where employees harassed dispatcher because she was female although harassment was not sexual in nature).

[Lehmann, supra, 132 N.J. at 601-02, 626 A.2d 445.]

Plaintiffs in the present suit accuse defendants of hostile work environment sexual harassment. Lehmann, supra, 132 N.J. at 603-04, 626 A.2d 445, summarizes the elements of a female worker's claim for hostile work environment sexual harassment as follows:

[A] female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. For the purposes of establishing...