1 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________ No. 10

- 3048

_________ AMELIA ANASTASIA ,

Appellant

v. CUSHMAN WAKEFIELD ; CITIGROUP, RP; CITIGROUP REALTY SERVICES; BRUCE COBB

________ On Appeal from the United State s District Court for the District of New Jersey (Civil Action No. 08

- cv - 1880) District Judge: Honorable Jose L. Linares

________ Submitted Under Third Circuit LAR 34.1(a)

October 26 , 2011

________ Before: SLOVITER, GREENAWAY, JR., Circuit Judges ,

and POL LAK, * District Judge (Filed : December 15, 2011)

______ OPINION

______

* Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern District of Pennsylvania, sitting by designation.2

POLLAK , District Judge

. Amelia Anastasia appeals from summary judgment in favor of the defendants, Cushman & Wakefield (“C&W”) and Citicorp, on her claim that the conduct of Citicor p employee Bruce Cobb caused her to suffer a hostile work environment and a constructive discharge in violation of the New Jersey Law Against Discrimination (“NJLAD”) , N.J. Stat . Ann. §§ 10:5

- 1 to

- 49. 1 The D istrict C ourt had diversity jurisdiction under 28 U.S.C. § 1332, and we have jurisdiction under 28 U.S.C. § 1291. Although our review is plenary, we will affirm for substantially the reasons given by the D istrict C ourt. I. We write primarily for the parties and will therefore be brief. By way of pert inent background, C &W is a commercial real estate company that managed several Ci ticorp offices in New Jersey. In 2001, Anastasia was hired to work for C&W at Citicorp‟s
off ice in Weehawken, New Jersey. She was officially supervised by David Hardy of
C&W , but she commonly received day

- to

- day assignments from B ruce Cobb of Citicorp

. On April 18, 2006 , over a private lunch, Cobb informed Anastasia that he was romantically attracted to her and had been for years

. The disclosure was prompted by Anastasia‟s d iscussion of a new relationship she had recently begun ; as far as the record

1 Anastasia‟s amended complaint named “Citigroup” and “Citigroup Realty Services” as defendants, and the captioning of thi s appeal continues that nomenclature. All sides agree that the appropriate corporate defendant is “Citicorp North America, Inc.” The District Court referred to the defendant as “Citicorp,” and so shall we. The distinction is of no significance to the ap peal; we note it merely for clarity. Bruce Cobb was named as a defendant only on claims that are not pursue d on appeal.3

reveals, Cobb had never before said or done anything to convey any inkling of his feelings to Anastasia. The attraction was not mutual. Anastasia told Cobb that she regarded hi m as a friend and mentor but not more. The two returned to the office, but Cobb obviously remained distraught. For example, he asked Anastasia to drive his car during the return trip to their office so that he could compose himself en route. A lthough the two worked together without incident for the remainder of the day, Cobb delayed leaving the office until Anastasia also left , and, while accompanying her to the parking lot, he gently grabbed her arm and thanked her for “ being so understanding.” That is t he only alleged physical contact between them

. The following day, April 19, Anastasia sought a return to normalcy at work, but Cobb continued to trouble her. First, he sent her a text message in the morning thanking her again for her considerate behavior after his confession of unreq uited romantic interest. Second, u pon observing a photograph on Anastasia‟s computer of Anastasia and her new boyfriend, Cobb told her that the photograph used to bother him but that he was

now “ okay ” with it , and he asked her for a copy of it

. Third, he concocted a pretext to have Anastasia meet him alone in a break room, where he again told her how wo nderful she was being. Anastasia did not return to work after April 19. Early o n April 20, she sent Cobb an email to inform h im that in light of his recent conduct she had chosen to take a temporary leave of absence

. Cobb responded by email again apologizing for the awkward situation he had put her in, thanking her for her understanding, and asking for4

her forgiveness

. Anastas ia, by email, accepted Cobb‟s apology but reiterated that she
needed some ti me away from the office. On April 21, Cobb emailed her to apologize again for his “boorish behavior” and to encourage her to return to work

. Anastasia accepted Cobb‟s apology but requested that he stop contacting her

. Over the next several days, while Anastasia remained on leave, Cobb continued to call and send email s and text messages to her

. On April 26, Anastasia reiterated to Cobb that this f urther contact was unwanted.
Anast asia then called Hardy , her C&W supervisor, and informed him of the situation

. Hardy, in turn, contacted Grace Ben

- Ezra, the human relations manager at C&W, who then c alled Anastasia on April 28. Recollections of the conversation differ; in the light mos t favorable to Anastasia, Ben

- Ezra advised her not to return to her workplace becaus e of Cobb‟s conduct. On May 3, C&W‟s ma nager for the Citicorp
account instructed Cobb to cease all communication with Anastasia. Cobb did not contact her aga in after that date. Citicorp and C&W subsequently explored transferring Cobb to another office but were unable to find an arrangement where Anastasia would not ultimately hav e to report to him in the chain of command. Anastasia remained on administrative leave until t he end of June , receiving her salary and benefits. On June 30, 2006, C&W terminated her. The company treated the action as a volunta ry resignation.5

In April 2008, Anastasia filed the present action. As noted above, her suit included in pertinent part tw o claims against C&W and Citicorp for Cobb‟s conduct : hostile work environment and constructive discharge under the NJLAD

. 2
O n June 10, 2010, the D istrict C ourt granted summary judgment in favor of the d efendants on both claims. As to the hostile work env ironment claim, the C ourt found that Cobb‟s conduct “ was not severe or pervasive enough to establi sh a hostile work environment.” Anastasi a v. Cushman & Wakefield , Civ. No. 08

- 1880, 2010 WL 2520976, at *4 (D. N.J. June 10, 2010). With respect to the cons tructive discharge claim, the C ourt found that Cobb‟s conduct was not sufficiently “outrageous, coercive and unconscionable” to constitute a claim for constructive discharge. Id. at *5 (quoting Jones v. Aluminum Shapes, Inc. , 772 A.2d 34, 44

- 45 (N.J. Supe r. Ct. App. Div. 2001) )

. II. “Our standard of review applicable to an order granting summary judgment is plenary.” Kossler v. Crisanti , 564 F.3d 181, 186 (3d Cir. 2009) (en banc) (quoting Nasir v. Morgan , 350 F.3d 366, 368 (3d Cir. 2003))

. Summary jud gment is appropriate only when , drawing all factual inferences in favor of the non

- moving party, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

2 We assume for purposes of this appeal that C&W and Citicorp could be held responsible for Cobb‟s conduct. Both Citicorp (which direc tly employed Cobb but not Anastasia) and C&W (which directly employed Anastasia but not Cobb) dispute this. Given our disposition, there is no reason to address or resolve the defendants‟ arguments on this point.6 III. Anastasia argues that a genuine dispute of fact exists as to whether she was exposed to sufficiently severe or pervasive harassment to demonstrate a hostile work environment under state law

. The NJLAD prohibits sex discrimination in employment . N. J. Stat. Ann. § 10:5

- 12(a). “Sexual harassment is a form of sex discrimination . . . .” Le hman n v. Toys ‘R’ Us, Inc. , 626 A.2d 445, 452 (N.J. 1993). And sexual harassment claims include both (i) quid pro quo sexual harassment, when an employer “attempts to make an employee‟s submission to sexual demands a condition of his or her employment”; and (ii) hostile work environment sexual harassment, when “ an employer or fellow employees harass an employee because of his or her sex to the point at which the wor king environment becomes hostile. ” Id. Anastasia pursues only the theory of hostile work environment as sexual harassment. A hostile work environment claim under the NJLAD requires the plaintiff to show conduct that is so “severe or pervasive” that a rea sonable person in the protected class would believe that “the conditions of employment are altered and the working environment is hostile or abusive.” Lehman n , 626 A.2d at 453 (emphasis removed)

. Whether conduct is “ severe or pervasive ” for purposes of t he NJLAD depends on, among other things, whether the conduct is frequent, whether it is physically threatening or merely verbally offensive, and whether it unreasonably interferes with plaintiff‟s job performance. Godfrey v. Princeton Theological Seminary , 952 A.2d 1034, 1045 (N.J. 2008); cf. Bal i ko v. Int’l Union of Operati n g Eng’rs , 730 A.2d 895, 903

- 04 (N.J. Super.7

Ct. App. Div. 1999) (listing other factors). The conduct must be judged on a cumulative basis in light of the “totality of the relevant cir cumstances

. ” Godfrey , 952 A.2d at 1045. The District Court found Godfrey to be particularly persuasive as to the “severe or pervasive” element of a hostile work environment claim, and we agree. In that case, two female students brought suit under the NJLAD for sexual discrimination in obtaining public accommodations, N.J. Stat. Ann. §10:5

- 4 , - 12(f ) , on the theory that the harassing conduct of a man affiliated with the seminary in which they were enrolled had created a hostile environment for them in th e school‟s facilities

. See Godfrey , 952 A.2d at 1036

- 38
& n.2 , 1040

- 41. 3 The man , William Miller, subjected both students to unwanted advances, gifts, telephon e calls, and requests for dates in a series of sporadic encounters spanning several years

. Id. at 1038

- 42 , 1046. The New Jersey Supreme Court held that Miller‟s alleged conduct, viewed from the perspective of a reasonable woman, was not severe or pervasive enough to create a hostile or abusive environment, and thus that the plaintiffs had failed to state a claim for sexual harassment. Godfrey , 952 A.2d at 1046

- 47. As the Appellate Division noted in a passage endorsed by the state Supreme Court, Miller‟s repeated and unwelcome behavior was one of the socially uncomfortable situations that many wome n encounter in the course of their lives when someone in whom they are not interested persists in trying to

3 Prior cases had already extended the hos tile work environment theory to sexual harassment in non - employment contexts, like schools. See L.W. ex rel. L.G. v. Toms River Reg’l Schs. Bd. of Educ. , 915 A.2d 535, 547 (N.J. 2007). The same substantive standard

— namely, whether the harassment is so se vere or pervasive as to make a reasonable member of the protected class believe that the environment is hostile or abusive

— applies regardless of whether the harassment occurs in a workplace setting or not. Godfrey , 952 A.2d at 1045.8

persuade them otherwise. In our view, Miller‟ s persistence did not cross the line and become actionable harassment. Id. at 104 7 (quoting Godfrey v . Princeton Theological Seminary , 2007 WL 1412095, at *7 (N.J. Super. Ct. App. Div. May 15, 2007)). “Persons who are socially tone deaf are not, by that characteristic, necessarily the equivalent of sexual harassers.” Id. Anastasia argues that Godfrey is distinguishable because it involved “random and unpredictable” encounters on a school campus, rather than an employment relationship

. She instead likens the present case to Colello v. Bayshore Community Health Service s , 2010 WL 1753164 ( N.J. Super. Ct. A pp. Div. Apr. 28, 2010) (per curiam) , in which a physician confessed his long

- held romantic attraction to a nurse with whom he worked. Id. at *2. When she declined his invitation to have an affair , the physician “grabbed [her] and forcibly kissed her, th rusting his tongue in her mouth. ” Id. The Appellate Division found the physician‟s conduct “severe or pervasive” enough to raise a triable issue under state law. Id. at *8. The court reasoned that the conduct in Godfrey “pale[d] in comparison” to the p hysician‟s actions; unlike the physician, the male in Godfrey “ never made any sexual remarks, and with the exception of two incidents where he lightly touched one of the plaintiffs on the arm to engage her attention, he never touched either of them and cer tainly never forced himself upon them .” Id. at *9. Bruce Cobb‟s conduct

— in its severity and pervasiveness

— is clearly more akin to the conduct in Godfrey than in Colello

. Unlike the physician in Colello , Cobb never made any overtly sexual remar ks and neve r attempted to grope or kiss the object of his unwanted affection. Cf. Colello , 2010 WL 1753164, at *9. Anastasia was able to9

terminate Cobb‟s unwanted contact with her (after enduring two weeks of calls, emails, and text messages) by reporting it to oth er supervisors. Cf. Godfrey , 952 A.2d at 1047. And lastly , Cobb‟s messages, while no doubt unwanted and annoying, consisted largely of awkward apologies and efforts to salvage his professional relationship with Anastasia

. That is not sexual ha rassment u nder New Jersey law. Anastasia‟s second and final argument on appeal is that a genuine dispute of material fact remains as to whether her work conditions were sufficiently intolerable to ground a claim for constructive discharge. Under the NJLAD, “c onstru ctive discharge requires not merely „severe or pervasive‟ conduct, but conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it.” Shepherd v. Hunterdon Developmental Ctr. , 803 A.2d 611, 628 (N.J. 2002)

. The plaintiff must show “outrageous, coercive and unconscionable” conduct that is more egregious than what is required to establish a hostile work environment claim. Id. (quoting Jones v. Aluminum Shapes, Inc. , 772 A.2d 34 , 45 ( N.J. Super. Ct. App

. Div. 2001) )

. We have already concluded that Anastasia could not demonstrate that Cobb‟s conduct was sufficiently “severe or pervasive” to establish a hostile work environment claim under the NJLAD . As the D istrict C ourt recognized, it stands to follow that Cobb‟s communications with Anastasia contained nothing objectively outrageous, coercive o r unconscionable of the sort required for a claim of constructive discharge.
IV. For the preceding reasons, the judgment of the D istrict C ourt will be affirmed.