Appellate Division Rejects Aguas Defense in Employment Harassment Case
Jul 20, 2021 | Written by: | Share
In a recent decision, McBride v. Foulke Management, 2021 WL 1977156 (App. Div. May 18, 2021), the Appellate Division further defined the limits of the affirmative defense available to employers under Aguas v. State, 220 N.J. 494 (2015).[1] The court found that the defense was not available where the harassing supervisor told the plaintiff to “leave and don’t come back,” despite the employer’s assurance that she was not fired and could return to work.
In McBride, the plaintiff was employed by the defendant’s car dealership as a sales trainee. The employer had anti-harassment policies and training in place, and instructed employees to report any harassing or discriminatory behavior to Robert Armstrong, the Director of Security and Investigations. The plaintiff reported directly to two sales managers, one of whom began sexually harassing the plaintiff almost immediately after hire. This harassment took place over the course of three weeks. When the plaintiff rejected his advances, he told the plaintiff to “leave and don’t come back” and to “clock out and leave.”
The plaintiff clocked out and left, and then contacted Armstrong to inform him of the sales manager’s behavior. The next day, the plaintiff met with Armstrong and the General Manager, and they informed the plaintiff that she was still employed. The plaintiff returned to the dealership several days later to give Armstrong copies of harassing text messages, but otherwise did not return to work. Following Armstrong’s investigation, the harassing sales manager was fired and the employer told the plaintiff that she could “stay if she wanted to.” However, the plaintiff did not return. The plaintiff was not compensated for any time after she clocked out on the day she was told to leave.
The trial court granted summary judgment for the employer, finding that the harassing sales manager did not have the authority to fire the plaintiff, the plaintiff was not fired, and no tangible employment action was taken against her. Thus, the plaintiff’s claims were barred as a matter of law by the affirmative defense adopted in Aguas. The Appellate Division reversed, finding that the facts alleged by the plaintiff “create a genuine issue of material fact as to whether [the supervisor] terminated plaintiff’s employment and whether plaintiff suffered economic damages – a loss in pay – as a result” of his actions. Id. at *19. Although the employer told the plaintiff that she was not fired, the court was “not persuaded those facts are dispositive of plaintiff’s contention she suffered a tangible employment action.” Id. at *21. In the court’s view, it was significant that the plaintiff received less than her standard weekly paycheck for the week she clocked out early, and no compensation thereafter. From this, the court found that it “can be reasonably inferred plaintiff did not receive compensation for the time after she clocked out” even if she was permitted to return to work. Ibid. Thus, summary judgment was reversed and the case was remanded for further proceedings.
[1] In Aguas, the New Jersey Supreme Court held that an employer is not vicariously liable for the harassing actions of a supervisor where the employee is not subject to a tangible employment action and the employer proves that it exercised reasonable care to prevent and promptly correct sexually harassing behavior, and the employee failed to take advantage of these opportunities.
Kelly A. Lichtenstein, Esq. is an associate with Gebhardt & Kiefer, PC, and practices primarily in the areas of employment law, civil rights, and civil litigation.
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