Payton v. New Jersey Turnpike Authority

• Decision Date: 26 March 1997
• Citation: 148 N.J. 524,691 A.2d 321
• Parties: , 73 Fair Empl.Prac.Cas. (BNA) 1149, 70 Empl. Prac. Dec. P 44,645 Joanne PAYTON, Plaintiff-Respondent, v. NEW JERSEY TURNPIKE AUTHORITY, Defendant-Appellant, and Michael Stankowitz and Robert C. Geberth, Individually and as employees of the New Jersey Turnpike Authority, Defendants.
• Court: New Jersey Supreme Court

Page 524

148 N.J. 524

691 A.2d 321, 73 Fair Empl.Prac.Cas. (BNA) 1149,

70 Empl. Prac. Dec. P 44,645

Joanne PAYTON, Plaintiff-Respondent, v. NEW JERSEY TURNPIKE AUTHORITY, Defendant-Appellant, and Michael Stankowitz and Robert C. Geberth, Individually and as employees of the New Jersey Turnpike Authority,

Defendants.

Supreme Court of New Jersey.

Argued Jan. 7, 1997.

Decided March 26, 1997.

Michael K. Furey, Morristown, argued the cause for appellant (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Mr. Furey and James P. Anelli, on the briefs).

Patricia M. Talbert, Roseland, argued the cause for respondent (Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein, attorneys).

Nancy Erika Smith, West Orange, submitted a brief on behalf of amici curiae National Employment Lawyers Association, New Jersey Employment Lawyers Association and National Organization for Women of New Jersey (Smith Mullin, attorneys; Ms. Smith, Christopher P. Lenzo, West Orange and Fredric J. Gross, Mount Ephraim, on the brief).

Richard C. Mariani, Warren, submitted a brief on behalf of amicus curiae The New Jersey Chambers of Commerce (Apruzzese, McDermott, Mastro & Murphy, attorneys; Mr. Mariani and Kimberly E. Robertson, on the brief).

The opinion of the Court was delivered by

HANDLER, J.

In this case, an employee is suing her employer and two of her supervisors for sexual harassment under the Law Against Discrimination. She contends that her supervisors harassed her and that her employer failed to respond adequately to her complaints. Although the employer subsequently disciplined the supervisors after determining that the employee's claims were meritorious, the employee asserts that the employer's allegedly inadequate response to her complaints contributed to the harm that she suffered and consequently entitles her to damages.

The general question that we must consider is the nature and extent of the pretrial discovery that an employee claiming to have been sexually harassed is entitled to obtain for the purpose of establishing the employer's liability based on its alleged failure to respond to her complaints of sexual harassment. The more specific issues that must be addressed in this case relate to whether various documents and records pertaining to the employer's handling and disposition of the employee's complaints of sexual harassment, including its internal investigation, may be made available through discovery and the extent to which concerns based on confidentiality and privilege may preclude or limit the discovery of such materials.

I

Plaintiff Joanne Payton began working as a maintenance records clerk for defendant New Jersey Turnpike Authority in November 1990. Shortly after she started, two of her supervisors, Robert Geberth and Michael Stankowitz (the two highest ranking administrators in her unit), allegedly began to sexually harass her. According to plaintiff's complaint, they harassed her in the following manners:

(a) Defendant Geberth commented about Plaintiff's clothing[,] grabbing the bottom of her skirt and pulling it down, stated her clothes look like she is "wearing pajamas," put his hand around the Plaintiff, on her shoulder or on her knee and called Plaintiff into his office directing that she turn around so that he could look at her (b) Defendant Stankowitz told Plaintiff on several occasions that he was "horny" and wanted "to get laid," referred to Plaintiff's breasts and said to her "just one time," tried to look down Plaintiff's blouse and, during lunch at a restaurant, took the Plaintiff's hand and put it between his legs;

(c) During the office holiday luncheon on or about December 1993, Defendants Geberth and Stankowitz gave Plaintiff a "baby doll" nightgown. Defendant Geberth insisted that she open the gift in front of her office co-workers who were attending the luncheon; and

(d) On or about July, 1993, Defendant Geberth slapped a female co-worker on the buttocks in the presence of several co-workers, including the Plaintiff.

For several years, plaintiff tolerated the harassment, but in September 1994, she filed an internal complaint with defendant.

During the approximately seven months following plaintiff's complaint, the alleged harassment continued, and defendant took no remedial action against the supervisors. On March 10, 1995, believing that defendant would not resolve the situation, plaintiff brought suit in the Superior Court, Law Division against defendant and the supervisors, alleging with regard to defendant that it was vicariously liable under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42, for the supervisors' conduct.

On April 26, 1995, defendant announced that it had disciplined the two supervisors, having suspended them without pay, demoted them, and reduced their salaries. Five days later, in answer to plaintiff's complaint, defendant raised these actions as an affirmative defense to vicarious liability, claiming that, by its response to her complaint of sexual harassment, it had neither participated in nor acquiesced in the harassment. Defendant later represented, through a privileged document log, that its Equal Employment Opportunity Officer ("EEO Officer") had made initial findings about the complaint on December 8, 1994 and (together with in-house counsel) had issued a final investigative report on March 14, 1995, four days after plaintiff had filed suit. It also asserted that, on April 13, 1995, its Sexual Harassment Advisory Committee had completed a confidential review of the EEO Officer's report, including remedial recommendations, and that, on April 25, 1995, defendant's commissioners had convened an executive session regarding the matter, during which they presumably had discussed the report and determined the appropriate sanctions.

In order to gauge the timeliness and thoroughness of defendant's actions (and hence the validity of defendant's affirmative defense that it had effectively remedied the harassment), plaintiff sought discovery of materials relating to the investigation and executive session. Specifically, she demanded "[a]ll documents relating to any investigation that was conducted by or for the defendant having to do with the plaintiff and her employment with the defendant[,] ... [a]ll documents relating to any investigation that was conducted by or for the defendant having to do with the plaintiff and her administrative complaint alleging sexual harassment[, and] ... [a]ny minutes, transcriptions, reports, supporting documents, agendas, [and] recordings related to [the Commissioners' April 25, 1995] meeting."

Defendant moved for a protective order exempting all of the requested documents from discovery. It also asked the court to seal the record. Plaintiff opposed the motion and, in the alternative, moved to strike the affirmative defense if defendant were not required to produce the documents.

The Law Division, without examining any of the documents in camera, granted the protective order in its entirety, thus removing from the discovery process all documents relating to the investigation. In support of its broad order, the court cited the public policy of confidentiality embodied in the LAD. It also relied, to a lesser degree, on the attorney-client privilege and the so-called privilege of self-critical analysis.

Plaintiff then sought interlocutory relief in the Appellate Division, which granted leave to appeal and vacated the protective order. 292 N.J.Super. 36, 678 A.2d 279 (1996). Relying on our holding in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993), the court concluded that plaintiff was at least entitled to discover information relating to "the extent of the Authority's investigation, the timing of the Authority's investigation relative to the date of plaintiff's complaint to the department, the information gleaned by the Authority from its investigation, the Authority's evaluation of the information, and the action taken by the Authority." 292 N.J.Super. at 46, 678 A.2d 279. The Appellate Division instructed the trial court to inspect the documents at issue in camera and to make appropriate redactions in order to accommodate concerns about confidentiality and privilege. Id. at 53-54, 678 A.2d 279.

We granted defendant's motion for leave to appeal, 146 N.J. 495, 683 A.2d 198 (1996), and we now affirm.

II

New Jersey's discovery rules are to be construed liberally in favor of broad pretrial discovery. Jenkins v. Rainner, 69 N.J. 50, 56, 350 A.2d 473 (1976) ("Our court system has long been committed to the view that essential justice is better achieved when there has been full disclosure so that the parties are conversant with all the available facts."); Catalpa Investment Group, Inc. v. Zoning Bd. of Adjustment, 254 N.J.Super. 270, 273, 603 A.2d 178 (Law Div.1991); Martin v. Educ. Testing Serv., Inc., 179 N.J.Super. 317, 327, 431 A.2d 868 (Ch.Div.1981). Under the rules, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." R. 4:10-2(a). "Relevant evidence," although not defined in the discovery rules, is defined elsewhere as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401.

In determining whether materials relating to defendant's internal investigation are discoverable, therefore, we must evaluate, as an initial matter, their relevance to the issues raised in this litigation. We look to Lehmann, supra, 132 N.J. 587, 626 A.2d 445, for guidance in this regard. In Lehmann, the plaintiff brought suit under the LAD, alleging hostile work environment arising from sexual harassment at the hands of her supervisor. Id. at 595-99, 626 A.2d 445. She did not simply sue the actual harassers, however, instead naming her employer and alleging that it was vicariously liable; among her allegations was the employer's supposedly...