Theresa Thomas v. Town of Hammonton

PRECEDENTIAL
Filed December 4, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3983
THERESA THOMAS,
Appellant
v.
TOWN OF HAMMONTON; MAYOR AND COUNCIL OF THE
TOWN OF HAMMONTON; DIANE DECICCO; COUNTY OF
CAMDEN; CAMDEN COUNTY COMMUNICATIONS
CENTER; MICHAEL HOWARD
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 01-cv-02509)
District Judge: Honorable Joseph E. Irenas
Argued October 16, 2003
BEFORE: SLOVITER, ROTH and STAPLETON,
Circuit Judges
(Opinion Filed December 4, 2003)
Mark Cimino (Argued)
1045 Cooper Street
Deptford, NY 08096
Attorney for Appellant

-- 1 of 19 --

A. Michael Barker (Argued)
Barker, Douglass & Scott
210 New Road - Suite 12
Linwood, NJ 08221
Attorney for Appellees Town of
Hammonton, Mayor and Council
of Hammonton, and Diane Decicco
Lawrence Vecchio (Argued)
Office of Camden County Counsel
520 Market Street
14th Floor, Courthouse
Camden, NJ 08101
Attorney for Appellees County of
Camden, Camden County
Communications Center, and
Michael Howard
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Theresa Thomas alleges that, while employed
by the Town of Hammonton, New Jersey (“Hammonton”),
she was subjected to sex discrimination and that her
employment was terminated in retaliation for her
complaints about that discrimination. The District Court
granted summary judgments in favor of all the defendants,
Hammonton, the Mayor and Council of Hammonton, Diane
DeCicco, the County of Camden (“Camden County”),
Camden County Communications Center, and Michael
Howard. We will affirm all of these judgments except those
pertaining to Thomas’s claim of hostile work environment
sexual harassment under the New Jersey Law Against
Discrimination (“LAD”). We will reverse and remand all of
the District Court’s judgments with respect to the LAD
sexual harassment claims, except the one entered in favor
of Diane DeCicco, which will be affirmed.
I. The Standard of Review
Because we are called upon to review summary
judgments, our review is plenary. Morton Int’l, Inc. v. A.E.
2

-- 2 of 19 --

Staley Mfg. Co., 343 F.3d 669, 679-80 (3d Cir. 2003). We
must view the record in the light most favorable to Ms.
Thomas. Id. at 680.
II. The Summary Judgment Record Viewed in
the Light Most Favorable to Ms. Thomas
On April 2, 2000, Thomas began working on a provisional
basis for the Town of Hammonton Police Department in the
State of New Jersey as a 911 call center dispatcher. As a
new dispatcher, Thomas was subject to a 90-day
probationary period, during which time Hammonton could
release Thomas from her employment with or without cause.1
In June of 2000, Thomas was required to take a week-long
training course run by Camden County and given at the
Camden County Communications Center.
On June 5, 2000, Thomas arrived at the Camden County
Communications Center to begin her training course. The
course was taught by Michael Howard. Thomas and Nick
DeStefano, a male, were the only students. Thomas alleges
that within the first half hour of the class, the instructor,
Howard, began harassing her. The sexually harassing
conduct of Howard, according to Thomas, included the
following: (1) using the words “jerk-offs, pricks, and
pussies;” (2) using the word “bitch” as a synonym for
problem; (3) distributing “dumb blonde” jokes to the class;
(4) grabbing his own genital area several times;2 (5) making
a point of standing directly in front of Thomas (two to eight
feet away) when acting offensively; (6) playing a tape of
supposed 911 emergency calls for the class, and fast-
forwarding to particularly sexually explicit parts; and (7)
1. Thomas does not concede that she was a provisional employee.
Nonetheless, we agree with the District Court that even when viewing the
evidence in the light most favorable to Thomas, Thomas was
unquestionably subject to a 90-day probationary period during which
she could have been dismissed with or without cause.
2. Specifically, Thomas testified as to one incident where Howard
allegedly said that “he was a volunteer captain or something for a fire
department, . . . and that when firemen hear whistles go off, . . . for a
fire they get big massive hard ons and that’s one of the times he grabbed
himself . . . .” Appellant’s App. at 51.
3

-- 3 of 19 --

remarking “so that figures” to Thomas after he asked what
she had for lunch and she indicated a hot dog. With the
exception of the hot dog incident, Thomas’s fellow student
was present for all of these incidents.
The tape, purportedly consisting of actual 911 emergency
calls, contained several calls of a non-sexual nature
(including a call from a man who mumbles gibberish for
several minutes to a dispatcher, a call regarding a fire, and
a call from a man who gets into a car accident while on the
phone with a dispatcher). The calls allegedly played to
Thomas, however, included the following: (1) the caller
indicates that he went to a doctor and the doctor asked him
to “do some crazy shit and . . . ejaculate.” The caller then
claims the doctor asked him if he was “getting hot and . . .
want to come;” (2) the caller indicates that her 15 year-old
son put a combination lock on his testicles; (3) the caller
says he “cut [his] cock off,” apparently with a vacuum
cleaner; (4) a call between a dispatcher and an EMT
discussing how the EMT had to transport a vacuum cleaner
to the hospital with the patient; (5) a call between a
dispatcher and another EMT after the vacuum incident
describing how the caller was masturbating with an upright
vacuum and how “it” got stuck in the vacuum and the
vacuum cut “it” off; (6) the caller indicates that her
husband has hair caught in his throat, the dispatcher asks
what the husband was eating, and caller replies “me;” (7)
the caller indicates that he has something “stuck in [his]
ass” and tells the operator that the object is a dildo; and (8)
the caller requests information regarding laws on nudity,
indicating that she “know[s] in Washington, D.C. that
women can go topless as long as they have their nipples
covered.”
Howard did not use the above tape in an instructional
manner, but merely played the tape (often fast-forwarding
to the sexually explicit parts), laughed, joked, and
discussed how paramedics treating the vacuum victim
found that his “peter” was like ground meat and ultimately
could not be repaired. He additionally noted that the caller
4

-- 4 of 19 --

who had something stuck in his rectum had to have four
hours of surgery as a result.3
Thomas attended the class for three days on June 5, 6,
and 7, 2000, and for about five minutes on June 8, 2000.
After the first day of the course on June 5, 2000, Thomas
complained to fellow Dispatcher Theresa Bradbury that
Howard had been using foul language and lewd gestures.
Bradbury offered to call a Camden County employee to
complain for Thomas, but Thomas informed Bradbury that
she had already said something to the instructor, that she
needed the class for work, and that she “didn’t want to
create a big thing.” Appellant’s App. at 50.
After the behavior by Howard continued on June 6, 2000,
Thomas approached Lt. Sean Locantore of the Hammonton
Police Department, who was in the direct chain of
command for the department’s dispatchers. Thomas
complained about Howard’s inappropriate comments and
gestures, and specifically complained about the tape of
supposed 911 calls played by Howard. Lt. Locantore
suggested that Thomas bring the matter to Hammonton
Police Chief Ingemi and to Dispatcher Bradbury. Thomas
indicated that she did not want to do so and risk that
Howard might fail her. Lt. Locantore suggested that
Thomas record the language used by Howard and attempt
to obtain a copy of the tape of supposed 911 calls.
3. Appellees Hammonton and Camden County made a motion before this
Court to have two audio exhibits included in Thomas’s appendix—
purporting to represent (1) the tape played by Howard supposedly
consisting of actual 911 calls and (2) a recording by Thomas of part of
Howard’s class—excluded from the record on appeal. Appellees argue
that these exhibits were not part of the record during the District Court
summary judgment proceedings. Furthermore, Appellees note that they
objected to the District Court’s consideration of the audio exhibits on
various grounds during summary judgment proceedings. We will deny
the motion. The District Court’s docket entries clearly show that the
audio exhibits were part of the record. Moreover, the District Court
specifically discussed the various contents of the audio exhibit of
supposed 911 calls, indicating that the District Court had allowed the
audio exhibit of 911 calls into the summary judgment record. Appellees
did not cross-appeal the District Court’s admitting these audio exhibits
for summary judgment purposes.
5

-- 5 of 19 --

Returning on June 7, 2000, Thomas recorded part of the
class taught by Howard. According to Thomas, Howard
cursed and made obscene gestures (such as grabbing his
crotch) during this class as well. Thomas stayed in the
class at this point, and asked to borrow a copy of the tape
of supposed 911 calls played by Howard during the
previous class. Howard gave her the tape. Thomas returned
to the Hammonton Police Department and advised
Dispatcher Bradbury that she had a copy of the “training”
tape.
A meeting with Thomas, Ingemi, Locantore, Bradbury,
Deputy Chief Ness, and Lt. Jones eventually took place in
Chief Ingemi’s office that day. The Chief told her, “I can’t
tell you whether to go back or not go back.” Appellant’s
App. at 68. Lt. Locantore told Thomas to leave the class if
Howard was still teaching the next day. When Thomas
arrived, Howard was in fact teaching the class and Thomas
left. Thomas called Chief Ingemi, who informed her that she
did not have to return to the class.
The next day, on Friday, June 9, 2000, Thomas reported
for work at 7:00 a.m. and left for a previously arranged
vacation at lunchtime. Thomas returned to work as
scheduled on Monday, June 12, 2000, and also reported for
work on Tuesday, June 13, 2000 and Wednesday, June 14,
2000. Thomas alleges that no one in the department talked
with her during these last three days. On Wednesday,
Thomas was given the 911 dispatcher certification test as a
result of Chief Ingemi’s having made alternate
arrangements for Thomas to take the test. She passed.
Wednesday, June 14, 2000, turned out to be Thomas’s last
day of work for the Hammonton Police Department.
Thomas called in sick for her scheduled shifts on June
16, 2000 and June 17, 2000, due to an upset stomach,
vomiting, and anxiousness. She visited her physician on
June 20, 2000, who advised her to stay out of work for a
week and wrote a note indicating that she would be out of
work through June 27, 2000. Thomas was scheduled to
work on June 28, 29, and 30, 2000, but did not report to
work. She alleges that she still felt sick and that for a few
days prior to June 28, 2000 she was unable to contact her
doctor, who was on vacation. According to Thomas, she
6

-- 6 of 19 --

contacted Lt. Locantore on June 26, 2000 and informed
him that she was still sick. Lt. Locantore indicated that she
would not be paid for her time out sick if she exhausted her
sick days.
On June 26, 2000, a closed meeting of the Mayor and
Council of the Town of Hammonton was held. Chief Ingemi
reported to the Council that Thomas had made an
accusation to him regarding sexual misconduct of a 911
instructor employed by Camden County.
On June 29, 2000, after Thomas had not reported for
work on June 28 and 29, 2000, Diane DeCicco, the
clerk/administrator of Hammonton, sent Thomas a letter
terminating her employment without further explanation.
The letter also informed Thomas that her health benefits
would be terminated effective July 1, 2000, unless Thomas
returned an enclosed COBRA form “as soon as possible”
along with a “monthly payment” of $480.82. Appellant’s
App. at 26. Thomas did not seek to continue her benefits
through COBRA.
III. The Federal Claims
Thomas alleges three federal claims: (1) she asserts that
she was terminated in violation of her right to due process
under the Due Process Clause; (2) she claims that she was
terminated in retaliation for her complaint against Howard,
thus violating her rights under the Free Expression Clause;
and (3) she contends that Hammonton’s notice of her right
to continue her health insurance violated her rights under
the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”). The District Court granted summary judgment
to the defendants on each of these claims, and we will
affirm.
A. Procedural Due Process
There is no serious dispute that at the time of Thomas’s
termination she had been employed for less than 90 days
and, accordingly, was a probationary “at-will” employee who
could be terminated without cause. She nevertheless insists
that under New Jersey law she could be terminated only by
7

-- 7 of 19 --

the City Council and only after notice and a hearing. These
rights under state law, she maintains, gave her a property
right protected by the Due Process Clause. We assume
arguendo that she possessed these rights under New Jersey
law. They did not, however, trigger the protection of federal
procedural due process.
The Fourteenth Amendment to the United States
Constitution prohibits states from depriving “any person of
life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. Accordingly, the first step in
analyzing a procedural due process claim is to determine
whether the “asserted individual interests are encompassed
within the fourteenth amendment’s protection of life,
liberty, or property.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d
Cir. 2000) (internal quotations omitted). Thomas claims
only that she possessed a property interest in her job. The
fact that she was an at-will employee is fatal to this claim,
however. Once a determination has been reached by
reference to state law that an employee “held [her] position
at the will and pleasure of the city,” that finding
“necessarily establishes that [the employee] had no property
interest.” Bishop v. Wood, 426 U.S. 341, 346 n.8 (1976)
(internal quotations omitted); see also Robertson v. Fiore,
62 F.3d 596, 601 (3d Cir. 1995) (per curiam) (at-will
employee “lacks a protected property interest in his position
within the meaning of the Fourteenth Amendment”); Chabal
v. Reagan, 841 F.2d 1216, 1223 (3d Cir. 1988) (same).
The fact that state law may grant procedural protections
to an at-will employee does not transform his or her
interest in continued employment into a property interest
protected by the Due Process Clause. As the Supreme
Court explained in Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 541 (1985):
The point is straightforward: the Due Process Clause
provides that certain substantive rights — life, liberty,
and property — cannot be deprived except pursuant to
constitutionally adequate procedures. The categories of
substance and procedure are distinct. Were the rule
otherwise, the Clause would be reduced to a mere
tautology. “Property” cannot be defined by the
8

-- 8 of 19 --

procedures provided for its deprivation any more than
can life or liberty.4
B. Free Expression
Thomas alleges that she was terminated from her
employment with Hammonton in retaliation for complaining
of Howard’s sexual harassment in violation of her right to
free expression under the First Amendment. The District
Court granted summary judgment against her because she
had not proffered evidence from which a reasonable jury
could find a causal connection between Thomas’s complaint
and her termination. We agree.
Thomas insists that the decision to terminate her
employment was made solely by Dianne DeCicco,
Hammonton’s female clerk/administrator. The undisputed
record evidence reflects that this decision was announced
on June 29th at the end of Thomas’s 90-day probationary
period. At that point, she had been absent for nine days
during the month of June and had failed to call in on June
28th to advise that she would not report for duty. Appellees’
Supp. App. at 61-63. It is in this context that Thomas
would seek to persuade a trier of fact that a female
administrator decided to terminate her employment
because she had made a sexual harassment claim against
an employee of another township.
Thomas’s brief does not articulate a plausible theory
under which her complaint against someone unassociated
with DeCicco or her employer might have caused DeCicco
to terminate her. And we have been unable to construct one
from the sparse available evidence. Thomas has testified on
deposition that the employees in the dispatch room
4. Contrary to Thomas’s suggestion, Logan v. Zimmerman Brush Co., 455
U.S. 422 (1982), does not hold that state procedural protections can
transform at-will employment into a protected property interest. There, a
state statute created a substantive cause of action for employment
discrimination on the basis of disability. The chose-in-action thus
created had been extinguished when the state failed to convene a
hearing within 120 days as required by the statute. This extinguishment
was held to be a deprivation of the plaintiff ’s property interest in his
substantive employment discrimination claim.
9

-- 9 of 19 --

“shunned” her when she returned to work on June 12
through 14, but this is of limited probative value as far as
DeCicco’s motivation is concerned. The only evidence
regarding the attitude of the Town’s supervisory personnel
regarding Thomas at this point in time is the evidence that,
despite her not having completed the training course, Chief
Ingemi arranged for her to take the 911 operator
certification test on June 14th.
We have recognized, to be sure, that a suggestive
temporal proximity between the protected activity and the
alleged retaliatory action can be probative of causation. See
Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001). However,
“[e]ven if timing alone could ever be sufficient to establish
a causal link, . . . the timing of the alleged retaliatory action
must be unusually suggestive of retaliatory motive before a
causal link will be inferred.” Estate of Smith v. Marasco,
318 F.3d 497, 512 (3d Cir. 2003) (internal quotations
omitted; alterations in original); see also Jalil v. Avdel
Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two days between
protected activity and alleged retaliation sufficient to draw
inference of causal connection). In cases such as this one
where “the temporal proximity is not so close as to be
unduly suggestive,” we have recognized that “timing plus
other evidence may be an appropriate test . . . .” Marasco,
318 F.3d at 513 (internal quotations omitted).
Here, in the context of the record as a whole, the
chronology of events does not provide substantial support
for Thomas’s position. The record does not disclose when
DeCicco first learned of the complaint, and over three
weeks passed between the complaint and the termination
letter. Indeed, given the special arrangements for the June
14th test, Thomas’s attendance record during the
intervening three-week period, and the near-end of the
probationary period on the date of the termination letter,
the chronology of events far more strongly suggests a
situation in which a probationary employee was determined
to be a poor risk as far as dependability was concerned.
C. COBRA
Thomas argues that Hammonton failed to comply with
COBRA’s notification requirements set forth in the Public
10

-- 10 of 19 --

Health Services Act (“PHSA”), 42 U.S.C. § 300bb-6(4).
COBRA amended, inter alia, both the PHSA and the
Employee Retirement Income Security Act (“ERISA”) with
similar notification and continued coverage provisions. The
COBRA provisions in the PHSA and ERISA represent
parallel statutory schemes. However, ERISA excludes public
employees covered by governmental employee benefit plans,
29 U.S.C. § 1003(b)(1), while the PHSA applies only to such
employees. See Brett v. Jefferson County, Ga., 123 F.3d
1429, 1434-35 (11th Cir. 1997). In addition, the relief
available under ERISA for violations of COBRA notification
requirements is broader than the relief available under the
PHSA for the same violations.
Both the PHSA and ERISA allow a beneficiary to bring an
action for “appropriate equitable relief ” to redress ERISA
and PHSA violations such as the failure of a plan to provide
proper COBRA notice. 29 U.S.C. § 1132(a)(3) (ERISA); 42
U.S.C. § 300bb-7 (PHSA). However, unlike the PHSA, ERISA
specifically provides for fines and attorney’s fees. See 29
U.S.C. § 1132(c) and (g).
Section 300bb-6(4) of the PHSA requires a plan
administrator to provide a beneficiary notice of his or her
COBRA rights upon the happening of a qualifying event. 42
U.S.C. § 300bb-6(4). Termination of employment is a
qualifying event. Id. § 300bb-3(2). COBRA provides that a
terminated employee shall have 60 days to elect
continuation coverage and that a plan may not require a
premium to be paid sooner than 45 days after the day on
which a beneficiary elects such coverage. See 42 U.S.C.
§§ 300bb-5(a) and 300bb-2(3).
The notice provided to Thomas on June 29, 2000 stated,
[B]e advised your health coverage will be terminated
effective 7/1/00. I have enclosed for your convenience
a COBRA form. If you are interested in continuing your
health benefits through COBRA, please return this
form to my office as soon as possible together with the
monthly payment of $480.82 made payable to the
Town of Hammonton.
Appellant’s App. at 26.
11

-- 11 of 19 --

We, along with other courts, have required employers to
operate in “good faith” compliance with a reasonable
interpretation of the notification provisions of COBRA. See
Williams v. New Castle County, 970 F.2d 1260, 1265 (3d
Cir. 1992); see also, e.g., Degruise v. Sprint Corp., 279 F.3d
333, 336 (5th Cir. 2002) (“employers are required to operate
in good faith compliance with a reasonable interpretation of
what adequate notice entails”) (internal quotations omitted);
Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1383-84
(10th Cir. 1997) (same). While COBRA notice givers are
thus not held to literal compliance with the statute, we
agree with the District Court that Thomas received
improper notice of her COBRA rights because Hammonton
failed to “properly detail her right to have up to 60 days to
elect to continue her coverage and another 45 days from
then to make payment.” District Court Op. at 20.
Hammonton required Thomas to elect coverage and pay her
premium “as soon as possible.” This was in direct conflict
with COBRA.
Nevertheless, as the District Court correctly noted, the
PHSA provides only for “appropriate equitable relief ” to
redress such COBRA violations. See 42 U.S.C. § 300bb-7.
Thomas has not suggested any appropriate equitable relief
and, indeed, has not directed us to anything in the record
tending to show that she was harmed in any way by
Hammonton’s failure to provide a proper notice. Thomas
cites to Phillips v. Riverside, Inc., 796 F.Supp. 403 (E.D.
Ark. 1992), where a District Court allowed for statutory
fines and attorney’s fees because of improper COBRA
notice. However, Phillips involved a private employer, and
fines and attorney’s fees were authorized under the specific
provisions of ERISA, 29 U.S.C. § 1132(c) and (g). As we
have indicated, they are not available under the PHSA.5
5. We do not interpret “appropriate equitable relief ” in the PHSA, 42
U.S.C. § 300bb-7, to allow public employees to seek fines and attorney’s
fees. Congress specifically provided for such relief under ERISA, but did
not do so under the PHSA. See Brett, 123 F.3d at 1435. Such an
interpretation is consistent with the Supreme Court’s narrow
interpretation of “appropriate equitable relief ” under Section 502(a)(3),
29 U.S.C. § 1132(a)(3), of ERISA, in Great-West Life & Annuity Ins. Co. v.
Knudson, 534 U.S. 204 (2002). In Great-West, the Court reiterated that
12

-- 12 of 19 --

Accordingly, we will affirm the District Court’s grant of
summary judgment to Appellees on Thomas’s COBRA
claim.
IV. The State Claims
Thomas asserts three claims under state law. First, she
alleges that her termination violated both New Jersey’s Law
Against Discrimination (“LAD”), N.J. Stat. Ann. § 10:5-12(d),
and its Conscientious Employee Protection Act (“CEPA”),
N.J. Stat. Ann. § 34:19-3, because it was in retaliation for
her complaints of sexual harassment. Second, she
maintains that the LAD was violated by the sexual
harassment she received.
A. Retaliation
A cause of action for retaliatory discharge under both the
LAD and CEPA requires the showing of a causal link
between the protected activity and the discharge. These
claims accordingly fail for the same reason that Thomas’s
federal, free expression claim fails. See II-B, supra.
B. Sexual Harassment
The New Jersey Supreme Court has developed a four-part
test for hostile work environment sexual harassment under
the LAD:
To state a claim for hostile work environment sexual
harassment, 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.
“appropriate equitable relief ” in Section 502(a)(3) is to be narrowly
interpreted as providing for “those categories of relief that were typically
available in equity.” Id. at 210 (quoting Mertens v. Hewitt Associates, 508
U.S. 248, 256 (1993)) (internal quotations omitted). Injunction,
mandamus, and equitable restitution were the categories of relief
typically available in equity. Great-West, 534 U.S. at 215.
13

-- 13 of 19 --

For the purposes of establishing and examining a
cause of action, the test can be broken down into four
prongs: the complained-of conduct (1) would not have
occurred but for the employee’s gender; and it was (2)
severe or pervasive enough to make a (3) reasonable
woman believe that (4) the conditions of employment
are altered and the working environment is hostile or
abusive.
Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 453 (N.J. 1993)
(emphasis in original).
With respect to the first element of the test, the Lehmann
Court explained that the “but-for” the employee’s gender
element,
. . . simply requires that in order to state a claim under
the LAD, a plaintiff show by a preponderance of the
evidence that she suffered discrimination because of
her sex. Common sense dictates that there is no LAD
violation if the same conduct would have occurred
regardless of the plaintiff ’s sex. For example, if a
supervisor is equally crude and vulgar to all employees,
regardless of their sex, no basis exists for a sex
harassment claim. Although the supervisor may not be
a nice person, he is not abusing a plaintiff because of
her sex.
Id. at 454.
The District Court held that because Howard, with one
exception, was equally crude with respect to both Thomas
and DeStefano, her fellow male student, the record would
not support a finding that the hostile environment created
by Howard would not have existed but for Thomas’s gender.
The Court acknowledged that Howard’s comment regarding
Thomas’s choice of a hot dog for lunch did not occur in the
presence of her fellow student, but concluded that this one
comment alone could not satisfy the second prong of the
Lehmann test, which requires that the conduct be “severe
or pervasive.” 626 A.2d at 453.
We agree that a reasonable trier of fact might conclude
that Howard would have created the same environment
even if Thomas or another woman had not been present.
14

-- 14 of 19 --

Viewing the record in the light most favorable to Thomas,
however, we also conclude that a reasonable trier of fact
could find that Thomas was subjected to severe harassment
because of her gender.
First, the record will support a finding that Howard did
not behave in the same manner towards Thomas as
towards DeStefano. The “hot dog” comment can be viewed
as only one incident in a pattern of conduct that focused
his presentation on Thomas. There is evidence, for example,
that Howard stood directly in front of, and in close
proximity to, Thomas when he repeatedly groped his
genitals, at times while providing inappropriate, sex-based
commentary. There is also evidence that Howard sat in
front of Thomas with the tape recorder while fast-
forwarding to the sexually explicit portions of the “training
tape” and while laughing and providing offensive
commentary. Based on this evidence, a trier of fact could
infer that the hostile environment experienced by Thomas
would not have existed if she had been a man.
More importantly, even if Howard had treated Thomas
and DeStefano alike, it would not necessarily follow that no
sex discrimination occurred. Based upon the rationale of
Lehmann, we would expect the Supreme Court of New
Jersey to hold that a sex-oriented employment environment
that has a disparate impact on reasonable women violates
the LAD. Lehmann, 626 A.2d at 454 (acknowledging that
intent to discriminate is not necessary and that there is a
distinction between an environment that a reasonable man
would consider hostile and one that a reasonable woman
would consider hostile). It would be permissible, we believe,
for a trier of fact to conclude that the environment created
by Howard was “qualitatively different” for a woman than
for a man. See Cline v. General Elec. Capital Auto Lease,
Inc., 757 F. Supp. 923, 932 (N.D. Ill. 1991) (prima facie Title
VII case established where, inter alia, plaintiff showed that
“the harsh treatment she received was qualitatively different
from the treatment received by the men in her
department”). First, there were portions of Howard’s
presentation that were disparaging of women, including
“dumb blonde” jokes, the use of the word “bitch” as a
synonym for “problem,”6 and references to women as
6. Use of the term “bitch” may or may not be a derogatory term indicative
of sex-based hostility, but given the other evidence in this case of sexual
15

-- 15 of 19 --

“pussies.” But that was not all. Coming in the context of a
male instructor having control over the fate of a female
student, a jury could easily find that a reasonable woman
in Thomas’s position would be intimidated, in a way not
experienced by a male, by an audio tape presentation
saturated with explicit descriptions of sexual activity and
having nothing to do with the subject matter of the class.
According to Thomas, it was not simply a matter of Howard
being crude; she regarded his manner of conducting the
class as “especially offensive to women.” Appellant’s App. at
47. If a jury agreed that this perception of Thomas’s was a
reasonable one for a woman in her position, it could find
that she was a victim of sexual harassment even though
DeStefano was exposed to the same conduct. As the Court
of Appeals for the Seventh Circuit has observed, it “blinks
reality to claim that sexual conduct which demeans women
by a man in a position of power, even if not directed at a
specific woman victim, equally impacts male and female
subordinates. This disparate effect is the discriminatory
element in a hostile environment.” Hutchison v. Amateur
Electronic Supply, Inc., 42 F.3d 1037, 1043 (7th Cir. 1994)
(footnote omitted).
Because we conclude that there is a material dispute of
fact that precludes summary judgment on all but one of
Thomas’s LAD sexual harassment claims, we will remand
and sexist conduct, a jury could interpret the instructor’s use of “bitch”
as one piece of evidence among many suggesting hostile work
environment sexual harassment. See, e.g., Costa v. Desert Palace, Inc.,
299 F.3d 838, 861-62 (9th Cir. 2002) (en banc) (“Whether this term
[bitch] is part of the everyday give-and-take of a warehouse environment
or is inherently offensive is not for us to say. Instead, we simply
conclude that the jury could interpret it here to be one piece of evidence
among many, a derogatory term indicating sex-based hostility.”),
judgment aff ’d, 123 S. Ct. 2148 (2003); Bailey v. Henderson, 94
F.Supp.2d 68, 75 (D. D.C. 2000) (“ ‘Bitch,’ which means ‘a female canine’
or ‘a malicious, spiteful and domineering woman’ clearly and objectively
has gender-specific connotations. It breaks no new legal ground to state
—as the Seventh Circuit acknowledges—that the use of the word ‘bitch’
can create a hostile work environment; whether it does or not depends
on the particular circumstances of the case.”)
16

-- 16 of 19 --

this case to the District Court for further proceedings
consistent with this opinion.
We will decline Hammonton’s invitation to affirm the
summary judgment in its favor on the alternative ground
that the record will not support a conclusion that it “aided”
and “abetted” Howard’s sexual harassment in violation of
N.J. Stat. Ann. § 10:5-12(e). We do not reach that issue
because it is not clear to us that this is the only theory
under which Hammonton could be held liable for Howard’s
conduct.
Hammonton was Thomas’s employer. Section 10:5-12(a)
of the LAD makes it unlawful “[f]or an employer, because of
the . . . sex . . . of any individual , . . . to discriminate
against such individual in . . . conditions or privileges of
employment . . . .” Id. Lehmann makes clear that “employer
liability for supervisory hostile work environment sexual
harassment shall be governed by agency principles.”
Lehmann, 626 A.2d at 461; see also Cardenas v. Massey,
269 F.3d 251, 267 (3d Cir. 2001) (“Under New Jersey’s
LAD, employers are liable under traditional agency
principles.”). Hammonton has not briefed the issue of its
potential liability on an agency theory under § 10:5-12(a),
and we decline to address that issue. Suffice it to say, it is
not obvious to us that a record cannot be developed that
would support agency liability under that section.
Moreover, in addition to requiring that employers be
liable for sexual harassment on an agency law basis under
the LAD, Lehmann speaks of “direct liability” for an
employer “[w]hen an employer knows or should know of the
harassment and fails to take effective measures to stop it”
as “the employer has joined with the harasser in making
the working environment hostile. The employer, by failing to
take action, sends the harassed employee the message that
the harassment is acceptable and that the management
supports the harasser.” Lehmann, 626 A.2d at 464. Thomas
has tendered evidence tending to show (1) that she notified
her superiors of the situation she faced and of her concern
that she needed to pass the 911 class in order not to lose
her employment, and (2) that none of her superiors assured
her that she could avoid that hostile environment without
putting her job in jeopardy. While that evidence clearly does
17

-- 17 of 19 --

not compel a conclusion that Hammonton is directly liable
for condoning Howard’s conduct, it is enough to create a
material dispute of fact.
Diane DeCicco is nonetheless entitled to summary
judgment on the hostile work environment sexual
harassment claim. This Court has predicted that New
Jersey will not impose liability on individual supervisors as
“employers” under N.J. Stat. Ann. § 10:5-5(a). See Hurley v.
Atlantic City Police Dep’t, 174 F.3d 95, 125 (3d Cir. 1999).
We have also predicted that in order to aid and abet a
violation of the LAD under N.J. Stat. Ann. § 10:5-12(e), an
individual must “knowingly give[ ] substantial assistance or
encouragement to the unlawful conduct of his employer.”
Failla v. City of Passaic, 146 F.3d 149, 158 (3d Cir. 1998).
The record is clear that DeCicco provided no assistance
with respect to any of the alleged hostile work environment
sexual harassment. The conduct of DeCicco at issue in this
lawsuit related solely to Thomas’s retaliation claims.
Therefore, we will affirm the District Court’s grant of
summary judgment to DeCicco on the hostile work
environment sexual harassment claim.
Because Thomas and Howard were not employed by the
same employer, this case presents substantial, state law
liability issues that have not been directly addressed by the
Supreme Court of New Jersey. For that reason, the District
Court may wish to consider whether it should continue to
exercise its supplemental jurisdiction now that all of the
federal claims have been resolved. See United Mine Workers
of Am. v. Gibbs, 383 U.S. 715 (1966). We leave that matter
to the sound discretion of the District Court and mention it
here only to make clear that our remand with instructions
to conduct further proceedings will not foreclose the
District Court from declining to exercise its supplemental
jurisdiction over Thomas’s remaining state law claim.
V. Conclusion
The judgments of the District Court on Thomas’s federal
claims and her state retaliation claims will be affirmed, as
will the judgment in favor of Diane DeCicco on Thomas’s
LAD sexual harassment claim. However, we will reverse the
18

-- 18 of 19 --

judgments in favor of the other defendants on Thomas’s
LAD sexual harassment claims and remand for further
proceedings.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
19

-- 19 of 19 --