SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1802-19

DONNA PORCARO,

Plaintiff-Appellant,

v.

TOWNSHIP OF ROCHELLE

PARK, a body politic, TOWNSHIP 

OF ROCHELLE PARK POLICE

DEPARTMENT, ROBERT

FLANNELLY, individually and

in his official capacity,

Defendants-Respondents.

_____________________________

Argued September 28, 2021 – Decided November 16, 2021

Before Judges Messano, Accurso, and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-5006-17.

Evan L. Goldman argued the cause for appellant 

(Goldman Davis Krumholz & Dillon, PC, attorneys; 

Evan L. Goldman and Kristen Ragon, on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-1802-19

Natalia R. Angeli argued the cause for respondents 

(Botta Angeli, LLC, attorneys; Christopher C. Botta 

and Natalia R. Angeli, on the brief).

PER CURIAM 

In this employment matter, plaintiff Donna Porcaro, a former Township 

police officer, appeals from a December 3, 2019 order granting summary 

judgment in favor of defendants Township of Rochelle Park, Township of 

Rochelle Park Police Department (RPPD or Department), and Robert Flannelly, 

who served as Chief of the RPPD when plaintiff instituted this litigation. We 

affirm in part and reverse in part. 

Plaintiff joined the RPPD in August 2003. Twelve years later, in 

December 2015, she was involved in an on-duty shooting and never returned to 

work. She qualified for accidental disability benefits and retired from the RPPD 

in November 2016. Plaintiff expressed an interest in becoming Flannelly's 

secretary upon her retirement but was not hired for the position.1 

In July 2017, plaintiff filed a complaint against defendants, alleging: (1) a 

hostile work environment, in violation of the New Jersey Law Against 

Discrimination (LAD), N.J.S.A. 10:5-1 to -50 (count one); (2) adverse 

1

 The record reflects the secretarial position remained vacant while this case 

was pending in the trial court. 
3

A-1802-19

employment action, in violation of the LAD (count two); (3) retaliation, in 

violation of the LAD (count three); (4) failure to pay, in violation of New 

Jersey's Wage and Hour Law, N.J.S.A. 34:11-56a to -56a41, and Wage Payment 

Law, N.J.S.A. 34:11-4.1 to -4.14 (count four); (5) a violation of public policy

(count five); (6) a violation of New Jersey's Civil Rights Act, N.J.S.A. 10:6-1 to 

-2, and New Jersey's Constitution (count six); (7) respondeat superior, vicarious 

and Monell2liability against the Township as well as the RPPD (count seven); 

and punitive damages against all defendants (count eight).

Regarding her hostile work environment claim, plaintiff alleged, and for 

the purpose of the summary judgment motion defendants either conceded as true

or included it in their lengthy statement of material facts, that as the only female 

police officer ever hired by the Department, plaintiff was subjected to a video 

of a man slapping his penis across a woman's face and hand drawings of penises

repeatedly displayed throughout the Department, to the point where she would 

have to conduct "sweeps" to remove the drawings before taking children on tours 

of the Department. In fact, Flannelly asked her to perform such "sweeps." 

Moreover, she stated Flannelly told her she was "crazy and that all women are 

2

 Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
4

A-1802-19

crazy." Further, she alleged that on one occasion when she was pregnant, 

Flannelly told her as she walked away from him that he was going to "take a 

picture of [her] ass because it got so big." 

Additionally, another male colleague purportedly asked her when she was 

in uniform and wearing her vest if that was "all [her] or is that the vest," 

gesturing at the size of her breasts. Plaintiff claimed, too, that after she gave 

birth to her child, defendants failed to make reasonable accommodations for her 

when she was breastfeeding, specifically by not allowing her to take breaks to 

pump her breast milk or to store her breast milk in the Department's freezer. 

Moreover, plaintiff alleged that "[o]n virtually every shift, from the day she 

started until the day her employment ended, she was subjected to sexual jokes"

and to male officers calling each other extremely offensive names such as 

"dick," "pussy" or "cunt," or "'dick punch[ing]' each other" in her presence.

3

 

Plaintiff maintained that Flannelly, despite his supervisory position, not 

only failed to discourage this offensive behavior, but actively participated in 

creating a hostile work environment. For example, she alleged he made 

3

 We include this offensive language in our opinion solely to reflect the grounds 

asserted by plaintiff to support her hostile work environment claim. We intend 

no disrespect. 
5

A-1802-19

comments about her appearance and told fellow employees that plaintiff had a 

"good body," "big boobs," and would be a "fun time." Plaintiff also asserted 

Flannelly told her directly she "cleaned up nicely" and he would hire her as his 

secretary but only if she wore a "French maid's outfit." Further, she alleged 

Flannelly improperly suggested the Department's dispatcher, Nicholas Cuocci,

had fathered her child because he claimed plaintiff's daughter bore a 

resemblance to the dispatcher.

According to plaintiff's complaint, over the course of her employment, she 

also was: given less overtime than other officers; denied opportunities for 

training; passed over for assignments and activities offered to male officers; 

denied timely reimbursements for college credits; forced to go on calls without 

a backup officer, contrary to department policy; compelled to share the 

designated female officers' locker room with male coworkers; and "always 

rotated to a shift where she was the junior officer," even though officers hired 

after her were rotated to shifts where they enjoyed senior officer status. In sum, 

plaintiff alleged that "[d]uring the course of her employment, from beginning to 

end, and even beyond, [she] suffered a severe and pervasive hostile work 

environment which resulted from continuous long-term sexual harassment, and 

discrimination and harassment because of her gender." (emphasis added).
6

A-1802-19

Cuocci, plaintiff's former co-worker, was deposed during discovery. He

provided testimony consistent with some of plaintiff's allegations. For example, 

he testified he saw penis drawings in the lunchroom and "erased several" such 

drawings "on a dry erase board." Further, he testified he was present when 

another officer watched pornographic videos while in the dispatch center. 

Cuocci also stated that plaintiff "didn't even have her own locker room. [Male 

officers] used to walk in and out of her . . . locker room. That's not respectful." 

Cuocci testified, too, that Flannelly made comments that plaintiff "had a good 

body on her, big boobs. She would probably be a fun time. Things like that." 

According to Cuocci, Flannelly also said that plaintiff "was sleeping around and 

had several sexual relationships with several men" and "that [Cuocci] was the 

father of her baby. That the resemblance was there, that the daughter looked 

like [Cuocci], and that [the two] were sleeping around. And then that she was 

sleeping around with [two other officers]."

Additionally, Cuocci testified that during his time as a dispatcher for the 

RPPD, Flannelly and other male officers commented on how plaintiff "couldn't 

handle the job," and that "[f]emales don't belong on the police force. They 

should be in records, or they should be doing something else, being a housewife 

or a French maid." Cuocci further stated he remembered one male officer
7

A-1802-19

commenting that plaintiff "doesn't need back-up. If she wants to be in a maledominated environment, she needs to act like a male." 

Flannelly served as Captain of the RPPD starting in 2005, and he became 

Chief of the Department in 2012. When he was deposed in October 2018, 

Flannelly stated his duties as Captain included handling administrative work, 

managing sick time and department policies, and "assist[ing] the [C]hief with 

the day-to-day operation of the Police Department." Flannelly also testified he 

was unaware of any female police officer besides plaintiff having been hired by 

the RPPD. Flannelly denied that male officers in the RPPD watched, possessed,

or displayed pornography or other obscene material at Headquarters. However, 

he recalled that one officer reported walking into his office to find plaintiff 

"watching some type of pornographic stuff" "on her first day of light duty," and 

that plaintiff was verbally reprimanded for the incident.

During his deposition, Flannelly described other events for which plaintiff 

was disciplined, but denied he harassed plaintiff in any manner. He also denied 

making remarks that plaintiff's daughter looked like Cuocci. But Flannelly 

admitted male officers used the "women's locker room" at Headquarters, 

explaining, "you got to understand it's probably eight to ten lockers, a shower 
8

A-1802-19

and a bathroom. There was only one officer using it. So, if she wasn't using it, 

it's pretty common the guys used the bathroom." 

Defendants moved for summary judgment and requested dismissal of

plaintiff's complaint. On December 3, 2019, the parties appeared for argument. 

The judge initially informed counsel that she analyzed the motion by going

"through the facts and which ones either are unsupported by anything that 

plaintiff can cite to or . . . , even if plaintiff's allegations are accepted, then are 

they otherwise barred either by [the] statute of limitations or because they don't 

collectively amount to a hostile work environment." 

Defendants' counsel offered "to streamline" her argument and represented 

certain counts in plaintiff's complaint, specifically counts four through seven,

should be dismissed because they were no longer in dispute. The judge asked 

plaintiff's counsel if he agreed the claims recited by defendants' counsel were no 

longer contested, to which he responded, "I do." He added, "we don't have any 

reason to contest what the defense has said with regard to those complaints." 

Next, defendants' attorney conceded that "in the summary judgment 

world, we are standing before the court and saying everything [plaintiff's] saying 

is true, just for argument's sake and she's entitled to all favorable inferences." 

When the judge asked if defendants admitted "there were hand[-]drawn pictures 
9

A-1802-19

of penises throughout [plaintiff's] tenure," defendant's counsel acknowledged 

"for purposes of [today only], hand[-]drawn pictures of penises were found in 

[H]eadquarters." Defendants' attorney further noted that "[plaintiff] talks about 

how everyone uses the term 'dick' or . . . dick punches each other, right? But 

they're doing it to each other. They're all using it." After citing to additional 

allegations raised by plaintiff, the judge asked defendants' attorney, "You don't 

think a jury could find that that's a hostile environment?" Counsel responded in 

the negative, explaining there were other "cases where the conduct was so much 

more egregious" but was not found to be "severe and pervasive enough." 

Defendants' attorney further contended that "the majority of [plaintiff's] 

claims are time barred," but if the court found "some of [plaintiff's] allegations 

fall . . . within [the] two-year window, the Roa4 Court did hold an untimely claim 

does not sweep in prior untimely discrete acts [which] the plaintiff knew or 

ought to have known gives rise to a claim." 

Plaintiff's attorney countered that there was "an extensive amount of 

factual issues and factual disputes" militating against an award of summary 

judgment. He argued some of the gender-based actions taken by plaintiff's 

4

 Roa v. Roa, 200 N.J. 555 (2010).
10 A-1802-19

former co-workers "may not [have been] actionable at that time as a discrete 

discriminatory act" and that "a single act of harassment may not be actionable

on its own. Such claims are based on a cumulative effect of individual acts." 

He further contended:

[I]t could be reasonably argued before a jury that this 

was a whole series of acts that individually may not 

have given rise . . . to a specific claim for 

discrimination, especially as it continued to evolve and 

. . . it continued to go on up until the time that she's out 

on disability with the comment by [Chief] Flannelly 

that yeah, she can come back to work as my secretary 

as long as she wears a French maid outfit. So that is 

continuing all throughout the course of her employment 

there.

[emphasis added.]

The judge interjected, "how can a rational factfinder accept that the work 

environment was so hostile, as she's claiming it was, in the face of her desire to

return to it?" Plaintiff's counsel responded that "the idea of whether it's severe 

and pervasive to alter the conditions of her employment, . . . I think all the case 

law deals with the fact that that is not necessarily a decision for a trial court to 

make, but as a rational factfinder" and "there are certainly ample facts to go 

before a jury." He added: 

[T]o make . . . life a little easier for you, I acknowledge 

that some of the things that Your Honor has stated and 

have been argued may not give rise to a claim of hostile 
11 A-1802-19

work environment. And Your Honor then has a right to 

strike those claims or those specific aspects of the case.

But I think that we have produced a sufficient amount 

of evidence and contested facts which will allow at least 

some of those claims to go before a jury.

The following exchange then occurred: 

THE COURT: So, do you agree that the claim . . . you 

think survives . . . is solely a hostile work environment 

claim? 

[PLAINTIFF'S COUNSEL]: Hostile work 

environment based upon gender discrimination. 

THE COURT: Right. 

[PLAINTIFF'S COUNSEL]: Yes. 

After a brief recess, the judge rendered an opinion from the bench, stating, 

in part:

In support of my conclusions and the decision 

that I'm about to render, I'm incorporating comments 

that were made, not throughout the entire course of the 

argument, but during [plaintiff's] argument I asked 

several specific questions about claims that were 

conceded[,] and a number of the claims are no longer in

the case by consent. That is, there are certain claims 

that were pleaded in the complaint . . . which [plaintiff's 

counsel] . . . conceded . . . were not surviving. 

[I] then went through the factual allegations as to which 

there was an extensive record put forth in connection 

with the motions and identified, I think for the most part 

with plaintiff's counsel agreement, what were . . . either 
12 A-1802-19

facts conceded by defendants as alleged by plaintiff or 

facts that the court was going to take as true for 

purposes of the motion in the light most favorable to 

plaintiff. And . . . the court did take out a number of 

the facts that were originally in plaintiff's argument or 

in plaintiff's pleading that . . . plaintiff had failed to 

establish that various things of which she was 

complaining were in any way related to her gender and 

I believe plaintiff's counsel agreed with that recitation 

of the facts that remained for purposes of the hostile 

work environment claim. 

And that . . . is the remaining count as to which the court 

is being asked to decide the dispute, about whether 

defendants are entitled to summary judgment. 

. . . . 

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 work environment. It 

was with that standard in mind that the court went 

through the facts and eliminated those facts that the 

plaintiff . . . either has not alleged or has not put forth 

a prima facie case or didn't respond to a defense rebuttal 

of a prima facie case as to them being related to her 

gender and was left with the facts that were already set 

forth on the record. The question is[,] can the court 

decide as a matter of law that that conduct was not 

severe or pervasive enough to make a reasonable 

woman believe that the conditions of employment are 

altered and the working environment is hostile or 

abusive. 
13 A-1802-19

The judge concluded that when certain claims were identified as "not 

established to be gender based" and "were stripped out, it really comes down to 

far fewer facts in support of the hostile work environment claim than appeared 

at first." She also stated she was "persuaded that the conduct that plaintiff 

complains of that . . . could arguably be or . . . is gender based does not rise to 

the level to create a severe and pervasive environment altering the terms and 

conditions of her employment." Thus, the judge granted summary judgment on 

"the only remaining claim," i.e., the hostile work environment claim, and 

dismissed plaintiff's complaint with prejudice. The judge did not reach the issue 

of whether any of plaintiff's claims were time barred. 

On appeal, plaintiff presents the following arguments for our 

consideration:

POINT I 

SUMMARY JUDGMENT CANNOT BE GRANTED 

WHERE, AS HERE, THERE ARE GENUINE ISSUES 

OF MATERIAL FACT (PASSIM).

POINT II 

APPELLANT'S CLAIMS ARE NOT SUBJECT TO A 

STATUTE OF LIMITATIONS AND THE TRIAL 

COURT PROPERLY DID NOT RULE OTHERWISE.
14 A-1802-19

POINT III 

THE TRIAL COURT IMPROPERLY DISMISSED 

APPELLANT'S CLAIM FOR HOSTILE WORK 

ENVIRONMENT (Passim).

A. THE LEGAL FRAMEWORK OF A 

HOSTILE WORK ENVIRONMENT CLAIM.

B. THE FACTS SUPPORT APPELLANT'S 

HOSTILE WORK ENVIRONMENT CLAIM.

i. Appellant raised a sufficient dispute of 

material fact from which a jury could 

conclude that the harassing conduct would 

not have occurred but for her gender.

ii. The trial court erred in disregarding 

facts that a reasonable juror could find 

support a claim for hostile work 

environment (PASSIM).

iii. The trial court erred by ignoring the 

importance of discriminatory and bias 

behavior evidenced by Appellant's 

supervisor.

C. THE TRIAL COURT ERRED IN 

EXCLUSIVELY RELYING UPON 

DISTINGUISHABLE FEDERAL LAW.

POINT IV 

THE TRIAL COURT ALSO ERRED BY 

DISMISSING APPELLANT'S DISCRIMINATION 

CLAIM PREMISED UPON THE NJLAD (NOT 

RAISED BELOW).
15 A-1802-19

POINT V

BECAUSE APPELLANT'S CLAIMS FOR HOSTILE 

WORK ENVIRONMENT AND VIOLATION OF THE 

NJLAD SURVIVE SUMMARY JUDGMENT, SO 

MUST COMPANION CAUSES OF ACTION 

AGAINST RESPONDENT EMPLOYER UNDER 

THE DOCTRINES OF RESPONDEAT SUPERIOR 

AND VICARIOUS LIABILITY (NOT RAISED

BELOW).

As we are satisfied the argument raised in Point IV lacks merit, R. 2:11-

3(e)(1)(E), and was not raised below, we need not address it. Selective Ins. Co. 

of Am. v. Rothman, 208 N.J. 580, 586 (2012). We also are persuaded that during 

argument of the summary judgment motion, plaintiff agreed to the dismissal of 

all counts of her complaint, with the exception of her hostile work environment 

count, so we limit our discussion to that remaining claim, as referenced in Points 

I, II, and III, with the understanding that, as to Point V, "an employer whose 

supervisory employee is acting within the scope of his or her employment will 

be liable for the supervisor's conduct in creating a hostile work environment." 

Lehmann v. Toys 'R' Us, 132 N.J. 587, 619 (1993).

"We review de novo the trial court's grant of summary judgment, applying 

the same standard as the trial court." Abboud v. Nat'l Union Fire Ins., 450 N.J. 

Super. 400, 406 (App. Div. 2017) (citing Templo Fuente de Vida Corp. v. Nat'l 

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)). This standard 
16 A-1802-19

mandates the grant of summary judgment "if the pleadings, depositions, answers 

to interrogatories[,] and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact challenged and that 

the moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). In our review, we consider, as we must, facts in the summary judgment 

record in the light most favorable to plaintiff. Angland v. Mountain Creek 

Resort, Inc., 213 N.J. 573, 577 (2013). That record includes concessions made 

by defendants' counsel during argument before us, as well as the trial court. 

Guided by these standards, we are convinced defendants were not entitled to 

summary judgment on plaintiff's hostile work environment claim. 

"Discrimination based on gender is 'peculiarly repugnant in a society 

which prides itself on judging each individual by his or her merits.'" Lehmann, 

132 N.J. at 600 (quoting Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 96 

(1990)). "The LAD specifically prohibits employment discrimination based on 

sex," providing:

It shall be [an] unlawful employment practice, or, as the 

case may be, an unlawful discrimination:

a. For an employer, because of the race, 

creed, color, national origin, ancestry, age, 

marital status, affectional or sexual 

orientation, [or] sex . . . of any individual, 

. . . to refuse to hire or employ or to bar or 
17 A-1802-19

to discharge . . . from employment such 

individual or to discriminate against such 

individual in compensation or in terms, 

conditions[,] or privileges of employment 

. . . .

[Ibid. (ellipses in original)(quoting N.J.S.A. 

10:5-12).]

To prove a gender-based hostile work environment claim under the LAD, 

the plaintiff must "demonstrate that '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.'" 

Griffin v. City of E. Orange, 225 N.J. 400, 413-14 (2016) (emphasis omitted) 

(quoting Lehmann, 132 N.J. at 603-04). "Thus, the second, third, and fourth 

prongs are, to some degree, interdependent." Shepherd v. Hunterdon Dev. Ctr., 

174 N.J. 1, 24 (2002) (citing Lehmann, 132 N.J. at 604).

While a plaintiff need not show that his or her employer 

intended to create a hostile work environment, 

"[c]ommon sense dictates that there is no LAD 

violation if the [employer's] conduct would have 

occurred regardless of the plaintiff's [protected status]." 

Lehmann, 132 N.J. at 604. Also, regarding the second 

prong of the Lehmann test, [w]hether conduct is "severe 

or pervasive" requires an assessment of the totality of 

the relevant circumstances, . . . which involves 

examination of (1) "the frequency of all the 
18 A-1802-19

discriminatory conduct"; (2) "its severity"; 

(3) "whether it is physically threatening or humiliating, 

or a mere offensive utterance"; and (4) "whether it 

unreasonably interferes with an employee's work 

performance."

[Godfrey v. Princeton Theological Seminary, 196 N.J. 

178, 196 (2008) (quoting Green v. Jersey City Bd. of 

Educ., 177 N.J. 434, 447 (2003)).]

"Severe or pervasive" conduct may be established by proof of "numerous 

incidents that, if considered individually, would be insufficiently severe to state 

a claim." Lehmann, 132 N.J. at 607. A proper regard for "the totality of the 

circumstances" requires consideration of "the cumulative effect of the various 

incidents," which in some situations "may exceed the sum of the individual 

episodes." Cutler v. Dorn, 196 N.J. 419, 431 (2008) (citations omitted).

A person's workplace environment is affected not only by conduct 

directed at that person, "but also by the treatment of others." Lehmann, 132 N.J. 

at 611. While "a single act of . . . offensive conduct could, under certain 

conditions, create a hostile work environment," such cases are "rare and 

extreme." Oakley v. Wianecki, 345 N.J. Super. 194, 202 (App. Div. 

2001) (quoting Lehmann, 132 N.J. at 606-07). Therefore, we generally consider 

"the cumulative effect of the various incidents." Godfrey, 196 N.J. at 

196 (quoting Lehmann, 132 N.J. at 607). 
19 A-1802-19

Importantly, "when determining whether conduct has created a hostile 

work environment, the harassing conduct itself must be evaluated, 'not its effect 

on the plaintiff.'" Id. at 197 (quoting Lehmann, 132 N.J. at 606). Further, the 

conduct must be assessed "by use of a reasonable-person standard, which was 

adopted to keep the test for harassing conduct tied to reasonable community 

standards and yet allow for its evolution as societal norms mature." Ibid.

(citing Lehmann, 132 N.J. at 603-04, 612).

Recently, our Supreme Court addressed a hostile work environment claim 

involving a supervisor who allegedly made two racist comments about 

Hispanics. Noting the "overarching responsibilities of a supervisor to prevent 

and put an end to . . . harassment in the workplace," the Court observed:

the severity of a remark can be "exacerbated" when it 

is uttered by a supervisor. [Taylor v. Metzger, 152 N.J. 

490, 503 (1998)]. Supervisors have an important "role 

in shaping the work environment." Ibid. They should 

prevent, not create, a hostile atmosphere. For that 

reason, invidious harassment by a supervisor can have 

a greater impact than misconduct by fellow employees. 

See id. at 504 [citation omitted]. 

[Rios v. Meda Pharm., Inc., 247 N.J. 1, 11-12 (2021).] 

The Legislature has consistently acted to strengthen the LAD to enhance 

protection for individuals. Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 

343, 357 (2016). Nonetheless, to pursue an LAD claim in Superior Court, a 
20 A-1802-19

plaintiff must act in a timely fashion. As our Supreme Court has instructed,

"LAD claims are subject to the two-year statute of limitations set forth in 

N.J.S.A. 2A:14-2(a)" but "[d]etermining when the limitation period begins to 

run depends on when the cause of action accrued, which in turn is affected by 

the type of conduct a plaintiff alleges to have violated the LAD." Alexander v. 

Seton Hall Univ., 204 N.J. 219, 228 (2010). 

[D]iscrete acts of discrimination [such as] . . . .

[d]iscriminatory termination and other similar abrupt, 

singular adverse employment actions that are 

attributable to invidious discrimination . . . generally 

are immediately known injuries, whose twoyear statute of limitations period commences on the 

day they occur. [Roa, 200 N.J. at] 569. 

However, when the complained-of conduct constitutes 

"a series of separate acts that collectively constitute one 

unlawful employment practice[,]" the entire claim may 

be timely if filed within two years of "the date on which 

the last component act occurred." Id. at 567 (citation 

and internal quotation marks omitted). The "continuing 

violation" doctrine, recognized under federal Title VII 

law as an appropriate equitable exception to the strict 

application of a statute of limitations, provided the 

analytic framework that has been used in the 

assessment of a LAD hostile workplace environment 

claim. See id. at 566-68.

. . . . [I]n Shepherd v. Hunterdon Developmental 

Center, 174 N.J. 1, (2002), . . . . [w]e turned to the 

equitable doctrine for assistance in addressing the 

thorny factual circumstances of an ongoing workplace 

harassment claim that involved alleged incidents of 
21 A-1802-19

both discrete and non-discrete acts of discriminatory 

workplace hostility. Shepherd, 174 N.J. at 

21 (citing [Nat'l R.R. Passenger Corp. v.] Morgan, 536 

U.S. [101,] 116 [(2002)]). Morgan had clarified the 

distinction between discrete acts of discrimination and 

hostile work environment claims, stating that hostile 

work environment claims by "[t]heir very nature 

involve[] repeated conduct" of varying types and that 

"[s]uch claims are based on the cumulative effect of 

individual acts." Morgan, 536 U.S. at 115. 

Recognizing the beneficial effect of adopting Morgan's 

approach to such difficult hostile work environment 

scenarios where an employee may be subjected to 

ongoing indignities, we held in Shepherd, that "a 

victim's knowledge of a claim is insufficient to start the 

limitations clock so long as the defendant continues the 

series of non-discrete acts on which the claim as 

a whole is based." 174 N.J. at 22. . . . . 

. . . . However, we warned [in Roa] that "[w]hat the 

doctrine does not permit is the aggregation of discrete 

discriminatory acts for the purposes of reviving an 

untimely act of discrimination that the victim knew or 

should have known was actionable." [200 N.J. at 569.]

[Id. at 228-30 (emphasis added).]

A key factor in determining whether acts of discrimination were discrete 

or connected is "permanence," meaning "whether the nature of the violations 

should trigger an employee's awareness of the need to assert her rights and 

whether the consequences of the act would continue even in the absence of a 

continuing intent to discriminate." Mancini v. Twp. of Teaneck, 349 N.J. Super. 

527, 557 (App. Div. 2002). In sum, the LAD's limitation period for a hostile 
22 A-1802-19

work environment claim begins to run from the occurrence of the last act in a 

pattern that established a unitary "continuing violation" even though none of 

those acts were separately actionable. Roa, 200 N.J. at 566-68. While only 

timely claims can have a remedy, "time-barred claims may be evidential in the 

proceedings" because "N.J.R.E. 404(b) allows evidence of other 'wrongs' to 

prove 'motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident when such matters are relevant to a material issue 

in dispute.'" Id. at 576. 

Mindful of these standards, we note that for purposes of summary 

judgment, defendants admitted the following acts occurred while plaintiff was 

employed by the RPPD:

1. Penis drawings were displayed around the Headquarters;

2. A male officer watched a pornographic video in plaintiff's presence 

while at Headquarters;

3. Male officers, including Chief Flannelly, regularly commented on 

plaintiff's appearance and hair;

4. Male officers told sexual jokes in plaintiff's presence;

5. Male officers engaged in "dick punching" and called each other a 

"dick" or "pussy"; 
23 A-1802-19

6. Chief Flannelly told plaintiff she could "come back to work" if she 

wore "a French maid outfit."

Given our de novo standard of review of a summary judgment ruling, we 

are not limited in our analysis to only those facts conceded by defense counsel. 

Instead, we also consider plaintiff's allegations and those of her former 

dispatcher, Cuocci, who corroborated some of plaintiff's allegations in his 

deposition testimony. Viewing such acts collectively, juxtaposed with the very 

recent determination by the Rios Court that a rational factfinder could conclude 

the alleged utterance of two racial slurs by an employee's supervisor was 

"sufficiently severe or pervasive to create a hostile work environment," 247 N.J. 

at 16, we are persuaded plaintiff's hostile work environment claim was entitled 

to survive summary judgment and proceed to a jury. Indeed, our Supreme Court 

has confirmed that in hostile work environment cases, whether rude and 

obnoxious behavior is severe or pervasive enough to be actionable is a jury 

question, precluding summary judgment. See Cutler, 196 N.J. at 436 (finding 

that the trial court appropriately recognized that the plaintiff's claims should be 

decided by the jury).

Unlike a termination or a similar "punitive retaliatory act," the acts to 

which defendants admitted, coupled with the additional acts alleged by plaintiff,
24 A-1802-19

and corroborated by Cuocci, involved separate incidents, such as those 

contemplated in Morgan, which by "[t]heir very nature involve[d] repeated 

conduct" of varying types. 536 U.S. at 115. As discussed, "the cumulative 

[e]ffect of [these] individual acts" should have been considered when assessing 

plaintiff's hostile work environment claim. Ibid. Also, given that the litany of 

plaintiff's allegations span "the course of her employment, from beginning to 

end [i.e., from August 2003 until December 2015], and even beyond," we are 

persuaded that for purposes of summary judgment, her cause of action would 

have accrued on the date on which the last act occurred, and her July 2017 

complaint was therefore timely. See Roa, 200 N.J. at 567. See also Alexander,

204 N.J. at 229 ("[W]hen the complained-of conduct constitutes 'a series of 

separate acts that collectively constitute one unlawful employment practice[,]' 

the entire claim may be timely if filed within two years of 'the date on which the 

last component act occurred.'" (alteration in original) (quoting Roa, 200 N.J. at 

567)). Moreover, the statute of limitations would not bar plaintiff "from using 

prior acts as background evidence in support of her timely claim." Ibid. (citing 

Morgan, 536 U.S. at 113).

Regarding plaintiff's argument in Point III C., we are satisfied her 

contention is belied by the record, meaning the judge did not rely "exclusively" 
25 A-1802-19

on federal law before entering summary judgment. In fact, the judge referenced 

Lehmann, as well as another state case when she rendered her decision. Still, it 

is worth emphasizing that while our Supreme Court

has frequently looked to federal precedent governing 

Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. 

§ 2000 to § 2000e-17 . . . . we have "applied the Title 

VII standards with flexibility" and "have not hesitated 

to depart" from federal precedent "if a rigid application 

of its standards is inappropriate under the 

circumstances." 

[Lehmann, 132 N.J. at 600-01.] 

Therefore, on remand, we are confident the judge will not hesitate to move 

beyond federal law, as needed, to promote the broad remedial purpose of the 

LAD.

Lastly, plaintiff contends the judge mistakenly applied a heightened 

standard to evaluate plaintiff's hostile work environment claim. We disagree. 

Admittedly, more than once during argument, the judge and counsel referred to 

plaintiff's burden to meet a "severe and pervasive" threshold to prove her hostile 

work environment claim. However, a review of the record in its entirety makes 

clear the judge fully understood that the second prong of the Lehmann standard 

calls only for a plaintiff to establish the complained-of conduct was sufficiently 

"severe or pervasive" to alter the conditions of employment.
26 A-1802-19

In sum, we affirm the December 3, 2019, dismissal of plaintiff's complaint 

except as to count one, and reverse the summary judgment ruling regarding that 

surviving count. 

Affirmed in part and reversed in part.

I hereby certify that the foregoing 

is a true copy of the original on 

file in my office. _\ \ ~ 

CLERK OF THE AP~TE DIVISION