Defining the Contours Of Individual Liability Under the NJLAD for Aiding and Abetting Sexual Harassment

January 1, 2010

In Ivan v. County of Middlesex, ___ F. Supp. 2d ___, 2009 WL 1241600 (D.N.J.), decided on May 6, 2009, Senior District Judge William H. Walls provided the latest clues on the parameters of individual aiding and abetting sexual harassment liability under N.J.S.A.10:5-12(e).

In Ivan, two female sheriff’s officers allegedly were subjected to vile and sustained sexual harassment in the Middlesex County Sheriff’s Department.  Plaintiffs sought to hold six individuals, including four supervisors and two fellow sheriff’s officers, liable pursuant to N.J.S.A. 10:5-12(e) for aiding and abetting this sexual harassment.  In his prior decision in this matter, Ivan v. County of Middlesex, 595 F. Supp. 425 (D.N.J. 2009), Judge Walls granted summary judgment dismissing plaintiffs’ claims against fellow officers, but denied the supervisors’ summary judgment motion, ruling their conduct, if proven by plaintiffs, was sufficient to render them personally liable for aiding and abetting the sexual harassment suffered by plaintiffs.  Id. at 463-464.

The supervisor defendants moved for reconsideration of that decision based on Cicchetti v. Morris County Sheriff’s Office, 194 N.J. 563 (2008), which had been decided after the parties had completed briefing the summary judgment motions, claiming Cicchetti constituted an intervening change of law warranting summary judgment in favor of the supervisor defendants.

In Cicchetti, Justice Hoens, writing for a unanimous New Jersey Supreme Court, analyzed the alleged conduct of Morris County Sheriff Edward Rochford and Undersheriff John Dempsey to determine if their conduct had the potential to render them individually liable through the “aiding and abetting” mechanism that applies to “any person” under N.J.S.A. 10:5-12(e).  In Cicchetti the Appellate Division had ruled Sheriff Rochford and Undersheriff Dempsey could be held individually liable. The Supreme Court reversed, noting the Appellate Division’s ruling was not premised on a finding these supervisors aided and abetted the Sheriff’s Department in violation of the NJLAD, but was founded “on some other unspoken basis.”  Id. at 595. 

The factual basis for the Appellate Division’s ruling was the alleged inadequacy of the remedial actions taken by both Rochford and Dempsey. As to Dempsey, plaintiff alleged he had not taken any action after plaintiff filed a report of his complaints, other than meeting with plaintiff and having a discussion with the two co-employees who allegedly instigated the harassment, despite plaintiff’s subsequent reports to Dempsey that the harassment was continuing.  The Ciccetti Court held the conduct of both Rochford and Dempsey fell “well short of the ‘active and purposeful conduct’, [citation omitted], that we have held is required to constitute aiding and abetting for purposes of their individual liability,” citing Tarr v. Ciasulli, 181 N.J. 70, 83 (2004). Id. at 595.

In Tarr v. Ciasulli, the New Jersey Supreme Court had confirmed the Third Circuit’s prediction in Hurley v. Atlantic City Police Dep’t, 174 F. 3d 95, 127 (3d Cir. 1998), that the standard for aiding and abetting liability under the NJLAD is based on the Restatement (Second) of Torts §876(b), which requires three elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal tortious activity at the time he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation.  Id.  Comment d. to this Restatement section sets forth five factors to determine if an individual has provided “substantial assistance” to the principal violator, namely: (1) the nature of the act encouraged; (2) the amount of assistance given by the supervisor; (3) whether the supervisor was present at the time of the asserted harassment; (4) the supervisor’s relations to the others; and (5) the state of mind of the supervisor.  Tarr at 84

In Ivan, Judge Walls denied the supervisor-defendants’ motion for reconsideration, refusing to find Cicchetti constituted an intervening change of law and, even if it did, held that the record still supported aiding and abetting liability for the supervisor defendants.  Id. at *4.  The Ivan Court’s subsequent analysis of the conduct of the four supervisor defendants yields important guidance on what conduct or inaction by a supervisor will to expose an individual to aiding and abetting liability.

The four supervisor defendants in Ivan were plaintiffs’ direct supervisors, respectively, Lieutenant Donald Blount (“Blount”), Sergeant Bruce Allen (“Allen”), Undersheriff Angelo Falcone (“Falcone”) and Sheriff Joseph C. Spicuzzo (“Spicuzzo”).

Blount was alleged to have made numerous sexually harassing remarks directly to one of the plaintiffs.  Ivan at *1.  The Court did not consider his remarks in analyzing his potential aiding and abetting liability. Instead it focused on Blount’s “willful indifference” in failing to act in response to the complaints by one of the plaintiffs regarding her fellow officers’ harassing conduct.  Id. at *6.  This willful indifference was evidenced by Blount’s statements to the plaintiff that he was not surprised by such conduct, had expected it and the plaintiff should just ignore it.  Id. at *2.  The Court held a supervisor’s demonstrated willful indifference to sexual harassment complaints must give rise to individual liability if the aiding and abetting prohibition “is to have any effect at all.”  Id. at *6.

Despite plaintiffs’ concession of a paucity of comparable direct evidence against Allen, the Court again emphasized the effects of his conduct as a result of his supervisory position.  Allen made discriminatory statements in front of one of the plaintiff’s fellow officers and took subsequent action which could be viewed by plaintiff’s co-employees as implementing his discriminatory comments.  Id. at *7.  Thus, it was Allen’s discriminatory statements at the roll call where other employees could witness his harassing conduct, Allen’s official inaction in response to his own statements and his use of his position as supervisor to implement his own harassing conduct, that exposed Allen to aiding and abetting liability.  Id.  This is an example of how a supervisor can be individually liable for aiding and abetting his own acts of sexual harassment.  In Hurley, supra., Chief Judge Becker explained this “somewhat awkward theory of liability” is grounded on a supervisor’s affirmative legal duty under New Jersey law to act against harassment.  Id. at 126.  The Ivan Court expressly confirmed the continued viability of this theory after ChicchettiId. at *5 n. 1. 

The Ivan Court did not agree with plaintiffs’ argument that the proliferation of pornographic materials within the Department was sufficient to demonstrate Allen’s “active and purposeful” conduct to aid and abet the sexual harassment of plaintiffs in the absence of specific evidence Allen failed to take steps to remedy this problem in response to complaints.  Id. at*7.

With respect to Falcone, unlike the direct supervisors, plaintiffs did not allege Falcone had engaged in any sexual harassment of plaintiffs.  Falcone did, however, demonstrate unequivocal hostility to complaints of harassment by one of the plaintiffs, thereby aiding and abetting the principal violation and rendering Falcone potentially individually liable.  Id. at *6.  This finding is consistent with the Hurley Court’s recognition that in law enforcement organizations a chain of command provides supervisory personnel with control over a victim’s most effective potential solutions to the harassment.  Hurley, 174 F. 3d at 127.

The evidence of potential aiding and abetting liability was the thinnest against Spicuzzo.  In his earlier opinion Judge Walls had held the fact that Spicuzzo was the highest ranking official in a sheriff’s department where sexual harassment was allegedly rampant was insufficient to find aiding and abetting liability.  Ivan, 595 F. Supp. at 463.  Similarly insufficient was the fact Spicuzzo had a hand in creating discriminatory policies for the Sheriff’s Department and had acknowledged their discriminatory effects on women. Id. These holdings were consistent with the pronouncement in prior opinions that aiding and abetting liability does not arise for supervisors “merely because they had some role, or knowledge or involvement” in the discriminatory actions if they did not lend “substantial assistance or encouragement” to the discriminatory conduct. Bowers v. National Collegiate Athletic Ass’n, Act, 151 F. Supp. 2d 526, 541 (D. N.J. 2001) (citing Failla v. City of Passaic, 146 F. 3d 149, 158-59 (3d Cir. 1998).

On Spicuzzo’s motion for reconsideration, the Court cited Falcone’s statement to one of the plaintiffs that Spicuzzo would be upset she had complained as supporting an inference that Spicuzzo aided and abetted the sexual harassment by willfully failing to respond.  Ivan at *6.  This inference was bolstered by Spicuzzo’s failure to punish Allen, even after a Departmental determination Allen had violated the NJLAD and warranted discipline.  Id.  This finding is consistent with statements in prior decisions that inaction can form the basis of aiding and abetting liability if it rises to the level of providing “substantial assistance or encouragement.”  See, e,g,, Failla, supra. at 158 n.11 (citing Dici v. Pennsylvania, 91 F. 3d 542, 553 (3d Cir. 1996).

The Ivan Court contrasted the actions of the supervisors in its case with those of the supervisors in Chichetti, whom the Supreme Court had held were not liable for aiding and abetting. Id. At 8. For the Ivan Court, the critical distinctions were the Chichetti supervisors had taken some action, albeit ineffective, in response to complaints of NJLAD violations and demonstrated no hostility toward the complaints.  Id.

Based on the Court’s ruling in Ivan, it is clear supervisors may avoid potential aiding and abetting liability if they do not demonstrate hostility toward complaints of sexual harassment and take some action to stop the harassment, even if the action is not effective or necessarily meaningful.  See, e.g., J.A. v. Ridgewood, 2009 WL 1364626 (D.N.J.) (unpublished decision by Senior Judge Debevoise refusing to require “meaningful action” to avoid aiding and abetting liability under the NJLAD).  The imperative for a supervisor to be receptive to complaints of harassment and to take some action in response to knowledge of sexual harassment is consistent with a supervisor’s legal duty to prevent, avoid and rectify invidious harassment in the workplace.  Herman v. Coastal Corporation, 348 N.J. Super. 1, 25 (App. Div. 2002) (citing Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 622-23 (1993); Hurley, supra. 174 F. 3d at 126.  A supervisor’s refusal to fulfill this duty is itself tortious, exposing both the supervisor and employer to liability. This is so because the effect of aiding and abetting discriminatory conduct in the workplace “is no less caustic than committing the actual discriminatory act itself.”  Gardenhire v. New Jersey Manufacturers Ins. Co., 333 N.J. Super. 219, 229 (L. Div. 2000).  see also, Restatement (Second) of Torts §876(b) comment c. (“it is essential that the conduct of the actor be in itself tortious”).



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