NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3252-12T1 BRIAN DUNKLEY, APPROVED FOR PUBLICATION Plaintiff-Appellant, June 24, 2015 v. APPELLATE DIVISION S. CORALUZZO PETROLEUM TRANSPORTERS,

Defendant-Respondent. _______________________________

Argued June 4, 2014 - Decided September 16, 2014 Remanded by Supreme Court March 16, 2015 Reargued telephonically May 18, 2015 - Decided June 24, 2015

Before Judges Lihotz, Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6863-10.

Richard E. Yaskin argued the cause for appellant (Mr. Yaskin and William Riback, attorneys; Mr. Yaskin, on the brief).

Erin L. Peters argued the cause for respondent (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys; Daniel B. McMeen, of counsel and on the brief; Ms. Peters, on the brief).

PER CURIAM

On March 16, 2015, the Supreme Court remanded this matter,

in light of the recent opinion, Aguas v. State,

(2015). Previously, we considered the summary judgment dismissal of plaintiff Brian Dunkley's complaint against his

employer, defendant S. Coraluzzo Petroleum Transporters.

Plaintiff's complaint alleged violations of the Law Against

Discrimination, N.J.S.A. 10:5-1 to -49 (LAD). Dunkley v. S.

Coraluzzo Petroleum Transporters,

(2014), remanded,

(2015). Plaintiff claimed he was

the victim of racial discrimination by Richard Harrington, an

employee assigned to train him.

Plaintiff also "insisted

he endured negative consequences after reporting Harrington's

conduct," which he maintained ultimately lead to his

resignation. Id. at 372. Plaintiff asserted defendant was

liable under the LAD for negligence and was vicariously liable

by allowing "conduct amounting to a hostile work environment

. . . , which caused his constructive discharge" because

Harrington was his supervisor. Id. at 373.

We affirmed the summary judgment dismissal of plaintiff's

complaint, determining defendant was not liable because once

plaintiff informed his supervisors he was experiencing racial

discrimination, they immediately took action in accordance with

defendant's "properly defined" anti-harassment and anti-

discrimination policies, to "protect plaintiff from further

discrimination." Id. at 381. "[T]he harm was remedied

immediately and effectively[,]" as plaintiff admitted he

2 A-3252-12T1 experienced no further discriminatory interactions or

harassment. Id. at 383. As to plaintiff's assertions of

"perceived ostracism by co-workers," we concluded such

allegations were insufficient to support claims for constructive

discharge or hostile work environment under the LAD. Id. at

382-83.

On remand, the Court ordered we address, "at a minimum,"

two specific issues:

(1) [W]hether there is a genuine issue of material fact with respect to plaintiff's direct claim for negligence under the Law Against Discrimination (LAD), N.J.S.A. 10:5- 1 to -49; and

(2) [W]hether there is a genuine issue of material fact with respect to plaintiff's claim for vicarious liability for the actions of a supervisor under the LAD based on a hostile work environment.

[Dunkley v. S. Coraluzzo Petroleum Transporters,

(2015).]

We permitted limited briefing and conducted a telephonic

argument on these issues. In light of the Court's holding in

Aguas, plaintiff maintains summary judgment must be vacated and

the matter remanded to the trial court for review of the

materially disputed facts surrounding whether defendant

adequately acted to prevent discrimination, and also to

determine whether Harrington was his supervisor at the time he

made the racially-charged remarks. Defendant disagrees and

3 A-3252-12T1 asserts plaintiff's proofs fail to sustain a claim for either

defendant's direct negligence or vicarious liability because its

policies were published and properly implemented to terminate

the offending conduct.

We have considered plaintiff's arguments under the Court's

guidance set forth in Aguas and conclude plaintiff has presented

no factual support showing defendant's conduct was negligent or

that it ignored its affirmative duty to prevent discrimination.

Defendant adopted well-defined policies to prevent

discrimination in its workplace, trained its employees, and,

when informed of harassing discriminatory behavior, implemented

procedures to curb the conduct. Further, we reject plaintiff's

assertions of vicarious liability for alleged supervisory

harassment. The facts show defendant enforced its anti-

harassment policy and plaintiff suffered "no employment action."

Aquas, supra,

. Accordingly, we affirm.

Our review begins with a discussion of the Court's recent

decision. In Aguas, the plaintiff asserted two LAD claims

against her employer, the State of New Jersey, alleging her

supervisors subjected her to sexual harassment in the workplace,

creating a hostile work environment.

. These claims included a direct claim for negligence and a

claim for vicarious liability.

. The plaintiff had

4 A-3252-12T1 verbally reported her allegations to supervisors, but never

filed a written complaint pursuant to the State's written anti-

harassment policy, a copy of which the plaintiff admits she

received.

. The trial court found the plaintiff

presented a prima facie hostile work environment claim, but

granted the State's motion for summary judgment, because the

State established an affirmative defense by showing an effective

anti-harassment policy was in place.

. The policy

delineated a reporting procedure through the State's Equal

Employment Division, which plaintiff failed to follow.

On certification to the Supreme Court, the plaintiff argued

the affirmative defense was unavailable in cases of sexual

harassment by a supervisor, under the LAD.

. The

Supreme Court examined the plaintiff's vicarious liability

sexual harassment claim and the defendant's asserted defenses to

the alleged liability.

.

Initially adopted in Lehmann v. Toys 'R' Us, Inc.,

(1993), the Court recognized employer liability is

exclusively governed by principles of agency.

200

N.J. at 511. An employer is liable for torts committed by an

employee "while acting in the scope of their employment," as

well as those committed by employees, even when acting outside

the scope of their employment, if:

5 A-3252-12T1 (a) the [employer] intended the conduct or the consequences, or

(b) the [employer] was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the [employer], or

(d) the [employee] purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

[Id. at 511 (quoting Restatement § 219).]

See also

.

The Court observed "two primary categories of claims" arise

from the alleged sexual harassment of employees: "a direct cause

of action against the employer for negligence or recklessness

under Restatement § 219(2)(b) . . . [and] vicarious liability

under Restatement § 219(2)(d)."

200 N.J. at 512.

"[O]ften discussed in tandem," the Court distinguished the two

types of claims as "analytically distinct from and independent

of one another" and, therefore, each clam "must be addressed

separately." Ibid.

Addressing the plaintiff's claim for the direct action of

negligence or recklessness, the Court noted a plaintiff must

prove an employer "failed to exercise due care with respect to

sexual harassment in the workplace, that its breach of the duty

of care caused the plaintiff's harm, and that [he or] she

6 A-3252-12T1 sustained damaged." Ibid. In defense to allegations of an

employer's direct liability for negligently creating a sexually

harassing hostile work environment, the Court recognized "an

employer's implementation and enforcement of an effective anti-

harassment policy," as "a critical factor in determining

negligence and recklessness claims under Restatement §

219(2)(b)."1 Id. at 499.

Next, the Court addressed the plaintiff's claim for

vicarious liability, noting:

[A]n employee may assert that the employer is vicariously liable for sexual harassment committed by its employee because the sexual harasser purported to act on the employer's behalf and "there was reliance upon [his or her] apparent authority," or because the harasser "was aided in [his or her misconduct] by the existence of an agency relation[ship]" with his or her employer, alleging them.

[Id. at 514 (alterations in original) (quoting Restatement § 219(2)(d)).]

Although Lehmann and its progeny never expressly "address[ed]

the analytical framework under which an employer's anti-

harassment policy may be considered in a hostile work

1 Restatement (Second) of Agency has been superseded by Restatement (Third) of Agency (2006). Section 219 of the Restatement (Second) of Agency, along with §§ 220, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237 and 267 have been subsumed and consolidated in Restatement (Third) of Agency § 7.07.

7 A-3252-12T1 environment harassment claim involving a supervisor," ibid., the

Court noted "that [same] jurisprudence strongly supports the

availability of an affirmative defense, based on the employer's

creation and enforcement of an effective policy against sexual

harassment." Id. at 514, 515-17.

The Court adopted what is known as the Ellerth/Faragher

test for defending claims alleging vicarious liability for

supervisory harassment under Restatement § 219(2)(b), thus

allowing employers to plead, as an affirmative defense, the

adoption and enforcement of an effective policy against sexual

harassment, so long as the employee suffered no tangible

employment action. Id. at 523-24 (citing Burlington Indus. v.

Ellerth,

,

,

(1998) and Faragher v. City of Boca Raton,

,

,

(1998)).

We now turn to our examination of plaintiff's complaint.

In count one, he asserted a violation of the LAD, alleging

defendant "failed to take action" when informed of the "repeated

discriminatory racial remarks" made by Harrington, claiming

"[d]espite the complaint made by [p]laintiff, [defendant] either

took no action to correct or prevent the racial discrimination

and harassment in the workplace or took steps which were not

8 A-3252-12T1 reasonably calculated to end the harassment." Count two alleged

defendant "failed to remediate a course of conduct constituting

racial harassment, discriminatory intimidation, ridicule[,] and

insult of a racial nature, pervasive hostility," creating a

"hostile and offensive work environment that intimidated,

frightened[,] and offended [p]laintiff," as an African-American.

Plaintiff also maintained defendant "delegated the authority to

control the work environment to employees and agents who failed

to remediate any claims of racial discrimination or hostility in

the work environment," causing his constructive discharge, as

set forth in count three.

During oral argument, plaintiff insisted defendant was

negligent in enforcing its anti-discrimination policy because it

did not discipline or fire Harrington and management employees

admitted a lack of knowledge of procedural aspects of the policy

directed to prevent racial and other discrimination. Further,

plaintiff asserted defendant was vicariously liable for

Harrington's racially harassing conduct as he held defendant's

apparent authority while serving as plaintiff's supervisor

during the two-week training period.

Aquas provides a framework for analyzing claims and

defenses offered regarding sexual harassment hostile work

environment claims. With respect to direct claims for

9 A-3252-12T1 negligence or recklessness, the Court's discussion, anchored in

Restatement § 219(2)(b), applies generally to employer liability

for the torts of employees, for any type of discrimination. See

id. at 499 ("[A]n employer's implementation and enforcement of

an effective anti-harassment policy, or its failure to maintain

such a policy, is a critical factor in determining negligence

and recklessness claims under Restatement § 219(2)(b)."). We

also conclude the Court's analysis of an employer's vicarious

liability is limited solely to sexual harassment LAD claims.

Rather, the principles can be tailored and adopted to address

allegations of other discriminatory conduct.

To prevail on a direct claim alleging defendant's

negligence, plaintiff bears the burden to show a defendant

negligently created a discriminatory work environment by failing

to exercise due care with respect to racial discrimination in

the workplace, by breaching the duty of due care, which caused

plaintiff harm. See id. at 512. To defend against such a claim

as discussed in Aguas, defendant may prove:

[T]he existence of: (1) formal policies prohibiting harassment in the workplace; (2) complaint structures for employees' use, both formal and informal in nature; (3) anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization; (4) the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and

10 A-3252-12T1 complaint structures; and (5) an unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.

[Id. at 513 (quoting Gaines v. Bellino,

(2002)).]

An employer is not required to meet each and every one of

these factors. Rather, it is a balance of facts and

circumstances to determine whether the employer shows "the

existence of effective preventative mechanisms,"

, designed to comply with the LAD's defined

purpose "to root out the cancer of discrimination." Cicchetti

v. Morris Cnty. Sherriff's Office,

(2008).

See N.J.S.A. 10:5-12(a). Succinctly, "'the efficacy of an

employer's remedial program is highly pertinent to an employer's

defense'" against liability under the LAD. Aguas, supra,

(brackets omitted) (quoting

).

Although plaintiff concedes defendant had a formal anti-

harassment policy in place, and acknowledges he received

specific training on the policy with other employees, plaintiff

argues defendant failed to sufficiently satisfy the remaining

Gaines factors. He suggested management employees did not

receive "civil rights" training, there were no effective

monitoring mechanisms "to check the effectiveness of the

11 A-3252-12T1 policies and complaint structures," and his supervisor's conduct

did not demonstrate "an unequivocal commitment" that harassment

would not be tolerated.

To support his argument, plaintiff isolates statements made

in depositions by some of defendant's management employees.

Plaintiff asserts this testimony creates a material dispute of

fact regarding the effectiveness of the anti-harassment policy

and defendant's commitment to combat racial discrimination,

which must be assessed by a jury.

Plaintiff has chosen to edit the deposition transcripts by

including only portions that purportedly contain statements he

construes as favorable, depriving this court of full review of

the context in which all statements were made. Nevertheless, we

have examined each of the statements identified by plaintiff and

viewed the evidence in a light most favorable to him. Davis v.

Brickman Landscaping, Ltd.,

(2014). We

conclude the record does not support plaintiff's claims of

materially disputed facts regarding defendant's implementation

and enforcement of its anti-harassment policy.

First, management employees did state they received

specific training that addressed discrimination. Elwood

Sickler, plaintiff's direct supervisor, testified he, along with

defendant's other managers, attended sensitivity training

12 A-3252-12T1 presented by an attorney, but was unsure of the exact date,

stating he believed it was in 2010. He also received racial

discrimination training in his prior position in the United

States Marine Corps. Sickler mistakenly thought the Human

Resources Department (HR), which was principally charged with

responding to discrimination complaints, was not in place until

sometime in 2011, but also maintained terminal managers were

supervising drivers, such as plaintiff. The record actually

proves defendant's HR manager was hired in October 2009.

Second, the record includes the employee handbook. One

section entitled "Policy Prohibiting Harassment &

Discrimination" specifically instructs: "Any employee who has a

complaint regarding harassment or discrimination must report the

matter to their manager. If that person is not available, or if

you believe it would be inappropriate to contact that person,

contact the Human Resources Department." The handbook contains

a list of telephone numbers, including that of HR.

Third, plaintiff never made a complaint to his supervisor

or the HR manager, as instructed by the written policy in the

handbook. Harrington's discriminatory conduct came to light

only because Sickler noticed plaintiff failed to report for

work, called him directly, and arranged for plaintiff to explain

what was happening. The next day, Sickler, accompanied by

13 A-3252-12T1 Thomas Spargue, defendant's safety coordinator, and Steve Cohen,

defendant's regional safety manager, met with plaintiff to

review and address his concerns. Dunkley, supra,

. At that meeting, for the first time, managerial

employees learned of plaintiff's experiences and his expressed

concerns Harrington was "a racist." Prior to the meeting,

Sickler had not received complaints regarding Harrington or

other employees charging them with racially-biased behavior.

Sickler made it clear defendant's policy was "there is no race.

. . . We are all employees." He arranged for plaintiff's

training to be guided by another employee, discussed the

situation with Sprague, and also met with Harrington.

Finally, the record contains plaintiff's acknowledgement he

had no difficulty with his new trainer and, in fact the two "got

along great." Further, plaintiff never saw Harrington again;

did not experience any further racially-discriminatory conduct;

and was not again exposed to racial harassment. Despite these

facts, plaintiff criticized the extent of defendant's

investigation, arguing notes should have been taken during his

meeting with managers, other individuals should have been

interviewed, and Harrington should have been fired. Plaintiff

also recounted the work atmosphere following the meeting and his

placement with a new trainer, saying things were "different."

14 A-3252-12T1 He stated other employees "would shy away" and "nobody would

even talk to [him]," making him feel "uncomfortable" and

preventing him from "getting a fresh start."

Granting all reasonable inferences to plaintiff's evidence,

we reject the suggestion Gaines, as adopted by Aguas, requires

the jury to assess the degree of effectiveness of defendant's

response to plaintiff's complaints when the discriminatory

conduct admittedly was addressed and rectified. Aguas

emphasized the LAD does not impose "strict liability."

. We also disagree the jury may assess

or even consider whether an employer's decision not to terminate

an offending employee denotes the discrimination policy as

ineffective.

Here, the facts support the Gaines factors. Defendant

proved it adopted a formal policy prohibiting workplace

harassment and discrimination. Formal training was conducted,

as evinced by the deposition testimony of plaintiff, as well as

Sickler. Viewing the events that transpired here, we determine

defendant's commitment to prohibit discrimination was not mere

lip service. Defendant's managers were proactive: they

initiated contact with plaintiff before he uttered a complaint,

and thereafter swiftly responded by investigating his complaints

15 A-3252-12T1 and implementing procedures to assure plaintiff no longer

experienced discriminatory treatment.

Moreover, defendant's anti-harassment policy included

elements of both formal and informal procedures to receive and

address complaints. See

.

Aggrieved employees were instructed to report untoward conduct

to either "their manager" or, if necessary, HR personnel.

Importantly, management initiated contact with plaintiff and

scheduled a meeting; defendant's formal complaint mechanism was

not engaged.

We concede the record is sparse as to whether monitoring

mechanisms were in existence to check the "effectiveness of the

policies and complaint structures." In part, this resulted 2 because plaintiff did not initiate a complaint. However, once

managers were made aware of the situation, they took action

pursuant to defendant's anti-harassment policy and plaintiff was

no longer victimized.

As to whether plaintiff demonstrated a constructive

discharge, his testimony pointed to no tangible action showing

2 It is also worth noting the record contains information discussing a prior instance of alleged sexual harassment experienced by one of defendant's employees. The discussion by the managerial employees regarding this incident reflected the initiation and implementation of defendant's anti-harassment policy.

16 A-3252-12T1 retaliatory acts by defendant.3 Rather, he generally related his

sense people were less interactive and more distant with him.

We repeat our originally expressed comments:

We also conclude plaintiff's perceived ostracism by co-workers fails to support his claim of hostile work environment. See Cokus v. Bristol Myers Squibb Co.,

(Law Div. 2002) ("The fact that [the plaintiff's] co-workers and superiors chose to limit their contact with [him] to business only and otherwise ignored [him], stared/glared at [him] when they walked by [him], and, even as plaintiff believed—talked about [him] behind closed doors," fails to create a hostile work environment.), aff'd

(App. Div.), certif. denied,

(2003). The Supreme Court has explained, the LAD does not create a "sort of civility code for the workplace[.]" Battaglia v. United Parcel Serv., Inc.,

(2013). Rather, it advances "[f]reedom from discrimination."

. Employee discourtesy and rudeness should not be confused with employee harassment. Further, an "unhappy" workplace does not equate to a hostile work environment under the LAD.

[Dunkley, supra,

.]

In summary, defendant, as plaintiff's employer, acted

expeditiously and effectively to prevent further racial

discrimination. No prior instances of racial slurs or

harassment were known and when plaintiff's complaint surfaced,

3 Plaintiff filed a certification in opposition to summary judgment which included claims not disclosed in his deposition. We could not evaluate these statements. However, the names of defendant's alleged management employees was left blank.

17 A-3252-12T1 it was immediately addressed. "More important, plaintiff's own

report [was] he did not experience any further discriminatory

harassment and suffered no change in his position, duties or

compensation . . . ."

.

We decline plaintiff's invitation to allow a jury to

evaluate its view of whether defendant's policy could be more

effective or to assess defendant's decision not to fire the

offending employee. It is neither the role of the jury nor the work

of courts to intrude so deeply into an employer's operational

decisions. Plaintiff never saw Harrington again, which might

suggest he was transferred to a different site. Plaintiff's own

words demonstrate defendant's policy, as implemented, worked and he

completed his training without encountering further derogatory

or discriminatory treatment. The legislative objective of the

LAD is to assure a commitment to end discrimination in the

workplace. See Fuchilla v. Layman,

(1988).

The facts here show that was accomplished.

Taken as a whole, this record reflects defendant did not

breach its duty or ignore the serious legal responsibilities it

owes its employees to eradicate racial discrimination in its

workplace. We conclude plaintiff has not identified factual

support to show the elements of a negligence action against

defendant.

18 A-3252-12T1 Next, we examine the record as to whether the facts

presented suggest defendant is vicariously liable for a

supervisor's harassment. In Aguas, the Court identified four

questions a plaintiff must affirmatively demonstrate:

1. Did the employer delegate the authority to the supervisor to control the situation of which the plaintiff complains . . . ?

2. Did the supervisor exercise that authority?

3. Did the exercise of authority result in a violation of [the LAD]?

4. Did the authority delegated by the employer to the supervisor aid the supervisor in injuring the plaintiff?

[Aguas, supra,

(alterations in original) (quoting

).]

See also Restatement § 219(2)(d).4

In Aguas, the Court noted it never explicitly considered

the impact of an employer's anti-harassment policy on a

vicarious liability claim for supervisory sexual harassment,

, but New Jersey nonetheless has

4 "Under Restatement § 219(2)(d), an employee may assert that the employer is vicariously liable for sexual harassment committed by its employee because the sexual harasser purported to act on the employer's behalf and 'there was reliance upon [his or her] apparent authority,' or because the harasser 'was aided in [his or her misconduct] by the existence of an agency relation[ship] with his or her employer.'"

(alteration in original) (quoting

).

19 A-3252-12T1 "acknowledged the value of effective anti-harassment policies in

combatting sexual harassment in the workplace, and recognized

that employers will be motivated to implement and enforce such

policies if their policies provide a defense to a claim of

vicarious liability." Id. at 517.

The Court found support for this principle in federal law

construing Title VII, which recognizes an employer defending

such a sexual harassment claim may assert as an affirmative

defense that the employer had an effective anti-harassment

policy and the employee failed to take advantage of or comply

with that policy. Id. at 521 (citing

,

,

and Ellerth,

supra,

,

,

). Explaining the LAD and Title VII share the common

objective "'not to provide redress but to avoid harm,'"

at

520-21 (quoting

,

,

), the Court explicitly adopted the

Ellerth/Faragher affirmative defense:

In a hostile work environment sexual harassment case under the LAD in which the plaintiff alleges employer vicarious liability under Restatement § 219(2)(d), the plaintiff has the initial burden of presenting a prima facie hostile work environment claim. If no tangible employment action has been taken against the plaintiff, the defendant[-]employer may assert the two-pronged affirmative defense

20 A-3252-12T1 of Ellerth and Faragher.[5] To establish that defense, the defendant employer has the burden to prove, by a preponderance of the evidence, both prongs of the affirmative defense: first, that the employer exercised reasonable care to prevent and to correct promptly sexually harassing behavior; and second, that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

[Id. at 524.]

The Court also addressed the definition of a "supervisor,"

describing it as "a pivotal factor in the application of the

agency principles set forth in Restatement § 219(2)(d)." Id. at

525. Rejecting the United States Supreme Court's "restrictive

definition of 'supervisor,'"6 id. at 528, the Court adopted an

5 The affirmative defense is unavailable where "'harassment culminates in a tangible employment action, such as discharge, demotion[,] or undesirable reassignment,'" id. at 522 (quoting

,

,

), "'because when a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation . . . . Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.'"

(alterations in original) (brackets omitted) (quoting

,

,

). 6 See Vance v. Ball State Univ., ___ U.S. ___, ___,

,

(2013) ("[A]n employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, (continued)

21 A-3252-12T1 expansive definition of the term "to include . . . employees

granted the authority to make tangible employment decisions

. . . [and] those placed in charge of the complainant's daily

work activities." Id. at 528.

Plaintiff focuses on his claim by asserting Harrington was

his supervisor. As we noted in our earlier opinion, the record

does not allow us to accept or reject that claim. Nevertheless,

we do not need to decide that fact to apply the legal analysis

adopted in Aguas.

Here, defendant took no tangible employment action against

plaintiff. It is not disputed that plaintiff resigned

voluntarily because he "felt uncomfortable," an assertion we

have rejected as satisfying the proofs necessary to sustain a

constructive discharge claim. Consequently, defendant may

assert the two-pronged Ellerth/Faragher affirmative defense, see

id. at 524, showing it acted in a reasonable and prompt manner

to prevent or correct the harassing behavior and plaintiff

unreasonably failed to take advantage of the preventative or

corrective measures implemented to avoid further harm. See id.

(continued) firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" (quoting

,

,

)).

22 A-3252-12T1 at 521 (quoting

,

,

).

As discussed above, plaintiff, despite training and the

opportunity to formally register his complaint with his manager

or HR, unreasonably failed to initiate corrective action. It

was defendant who undertook responsibility to determine the

reasons why plaintiff failed to return to work, then exercised

reasonable care to prevent and correct harassing conduct by the

prompt enforcement of its anti-discrimination policy. Once the

facts were discovered, no further instance of discrimination

occurred.

Affirmed.

23 A-3252-12T1