UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JESSE BARROSO,

 Plaintiff,

v.

LIDESTRI FOODS, INC., et al.,

 Defendants.

Civil No. 11-2059 (NLH/AMD)

OPINION

APPEARANCES:

Daniel T. Silverman, Esquire

Kevin M. Costello, Esquire 

Costello & Mains, P.C. 

18000 Horizon Way 

Suite 800 

Mount Laurel, New Jersey 08054 

Attorneys for Plaintiff Jesse Barroso

Douglas Diaz, Esquire 

Archer & Greiner, P.C. 

One Centennial Square 

Haddonfield, New Jersey 08033 

Attorney for Defendant Lidestri Foods, Inc.1

HILLMAN, District Judge

This matter comes before the Court by way of Defendant

Lidestri Foods, Inc.’s motion [Doc. No. 21] seeking summary

 Although Plaintiff’s complaint also names Lidestri Foods 1

d/b/a Lidestri Food and Beverage, Lidestri Food and Beverage 

d/b/a Lidestri Foods, Inc., and Lidestri Food and Beverage as

defendants in this case, the record reflects that Lidestri Foods,

Inc. is the proper Defendant and that these remaining names are

simply doing business as designations of Lidestri Foods, Inc. 

(See Notice of Removal [Doc. No. 1] ¶ 3(d).) 

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judgment pursuant to Federal Rule of Civil Procedure 56. The

Court has considered the parties’ submissions and decides this

matter pursuant to Federal Rule of Civil Procedure 78. 

For the reasons expressed below, Defendant’s motion for

summary judgment will be granted. 

I. JURISDICTION

Plaintiff originally filed the complaint in this action in

the Superior Court of New Jersey, Camden County, Law Division

asserting claims of sexual harassment and retaliation in

violation of the New Jersey Law Against Discrimination (“NJLAD”). 

Defendant Lidestri Foods, Inc. (“Lidestri”) removed the action to

this Court pursuant to 28 U.S.C. § 1441, et seq., asserting

original jurisdiction exists over Plaintiff’s state law claims

based on diversity of citizenship jurisdiction.

The Court exercises jurisdiction in this case pursuant to 28

U.S.C. § 1332 based on complete diversity of citizenship between

the parties and an amount in controversy in excess of $75,000. 

Plaintiff Jesse Barroso is a citizen of the state of New Jersey. 

(Notice of Removal [Doc. No. 1] ¶ 3(a).) Lidestri is

incorporated in, and maintains its principal place of business

in, the state of New York. (Id. ¶ 3(b).) The amount in

controversy is met because the allegations contained in

Plaintiff’s complaint sufficiently demonstrate that the damages

sought are in excess of $75,000, exclusive of interest and

2

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costs.2

II. BACKGROUND

The basic facts of this case are largely undisputed and

relate to Plaintiff’s allegations that he was subjected to sexual

harassment and retaliation during his employment at Lidestri. In

November of 2008, Plaintiff was hired to work for Lidestri as a

forklift operator at its Pennsauken, New Jersey manufacturing

The complaint also names Roger Carter, as a Defendant. 2

(First Am. Compl. [Doc. No. 16] ¶ 3.) From the complaint and

Lidestri’s Notice of Removal, it appears that Defendant Roger

Carter is potentially a citizen of the state of New Jersey. (See

id.; see also Notice of Removal ¶ 3(e).) 

Section 1441(b)(2) of the removal statutes prohibits removal

of civil actions “solely on the basis” of diversity jurisdiction

“if any of the parties in interest properly joined and served as

defendants is a citizen of the State in which such action is

brought.” 28 U.S.C. § 1441(b)(2). Under Section 1441(b)(2),

known as the forum defendant rule, “a state court action is not

removable based upon diversity jurisdiction if any of the

‘properly joined and served’ defendants are citizens of the forum

state.” Poznanovich v. AstraZeneca Pharmaceuticals LP, No. 11-

4001, 2011 WL 6180026, at *1 (D.N.J. Dec. 12, 2011). 

Lidestri asserts, however, that removal remains proper in

this case and is not barred by Section 1441(b)(2) because Carter

had not yet been served with the complaint at the time of

removal. (Notice of Removal ¶ 3(e).) A split of authority on

the issue of “whether removal by a non-forum defendant prior to

formal service on any defendant, including forum defendants, is

valid” exists among the courts in this District. See

Poznanovich, 2011 WL 6180026, at *3-5 (collecting cases). 

However, the Court need not resolve this issue because it

appears that Plaintiff does not intend to pursue any claims

against Carter. He was not served within 120 days of the filing

of the complaint as required by Federal Rule of Civil Procedure

4(m), and it appears that Plaintiff has abandoned any claims

asserted against him in this action and is proceeding only

against the corporate defendant, Lidestri. Accordingly, pursuant

to Rule 4(m), the Court dismisses Plaintiff’s action against

Carter and his citizenship will not be considered for purposes of

diversity jurisdiction. 

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facility. (Lidestri’s Statement of Undisputed Material Facts

[Doc. No. 21-3] (hereinafter, “Lidestri’s Statement”), ¶¶ 1-2;

Pl.’s Reply to Def.’s Statement of Undisputed Material Facts

[Doc. No. 24-1] (hereinafter, “Pl.’s Statement”), ¶¶ 1-2.) 

Lidestri’s Pennsuaken facility consists of two separate

buildings: a warehouse building known, as the “1600 Building,”

and a production building where the receiving dock was located,

known as the “1550 Building.” (Lidestri’s Statement ¶ 1; Pl.’s

Statement ¶ 1.) 

During the course of his employment, Plaintiff worked in the

receiving area of the 1550 Building. (Lidestri’s Statement ¶ 2;

Pl.’s Statement ¶ 2.) In the fall of 2010, the time period

relevant to this action, Plaintiff worked the second shift at the

1550 Building from Monday through Friday. (Lidestri’s Statement 3

¶ 20; Pl.’s Statement ¶ 20.) Near the end of September 2010, a

warehouse shift manager at Lidestri by the name of Michael Shaw

began working the second shift on both Thursday and Fridays. 

(Lidestri’s Statement ¶¶ 14, 19; Pl.’s Statement ¶ 14, 19.) 

Shaw’s primary responsibility at Lidestri was oversight of the

1600 Building where his office was located. (Lidestri’s

Statement ¶ 15; Pl.’s Statement ¶ 15.) However, while working

 Lidestri alleges that in November of 2010, Plaintiff’s 3

schedule changed and he no longer worked on Fridays. (Lidestri’s

Statement ¶ 21.) Plaintiff disputes that his schedule changed in

November of 2010. (Pl.’s Statement ¶ 21.) This dispute is not

material to the instant motion. 

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the second shift Shaw “would see the employees in the 1550

[B]uilding maybe two or three times a day in passing just to

ensure the employees were performing their assigned tasks.” 

(Lidestri’s Statement ¶ 22; Pl.’s Statement ¶ 22.)

On December 13, 2010, Kathleen Jehens, Lidestri’s Human

Resources Manager at the Pennsuaken facility, received a letter

from another forklift driver, Hosmay Jorrin, complaining of

sexual harassment by Shaw. (Lidestri’s Statement ¶¶ 39-43; Pl.’s

Statement ¶¶ 31, 38; see also Undated Letter from Hosmay Jorrin,

Ex. 8 to Lidestri’s Statement, 1.) Plaintiff, along with several

other Lidestri employees, signed the letter Jorrin submitted

complaining of Shaw’s conduct. (Lidestri’s Statement ¶ 39, Pl.’s

Statement 39.) Upon receipt of Jorrin’s letter on December 13,

2010, Jehens began an internal investigation into Plaintiff’s

allegations against Shaw commencing the following morning on

December 14, 2010. (Lidestri’s Statement ¶ 40; Pl.’s Statement 4

¶ 40.) Moreover, Lidestri immediately removed Shaw from his

duties as a warehouse shift manager in the 1550 Building after

receipt of Jorrin’s letter. (Lidestri’s Statement ¶ 41; Pl.’s 5

 Jehens apparently commenced the investigation on December 4

14, 2010 because she did not receive Plaintiff’s letter until

late in the afternoon on December 13, 2010 at approximately 4:45

p.m. (Ex. 1 to Lidestri’s Statement, Certification of Jehens ¶

13; Lidestri’s Statement ¶ 38; Pl.’s Statement ¶ 38.)

 The record reflects that Lidestri in fact decided to 5

suspend Shaw’s employment during the course of the internal

investigation beginning on December 14, 2010. (Ex. 10 to

5

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Statement ¶ 41.) 

Jehens’ investigation consisted of interviews of ten

Lidestri employees from December 14, 2010 through December 21,

2010, including Plaintiff and Shaw. (Lidestri’s Statement ¶¶ 42-

46; Pl.’s Statement ¶¶ 42-46.) With respect to Plaintiff’s

complaints of sexual harassment by Shaw, Jehens’ investigation

and interview of Plaintiff revealed that Shaw’s conduct toward

Plaintiff included the following: (1) comments Shaw made to

Plaintiff such as “hurry up before I snatch your balls” or

“before I grab [your penis]”; (2) Shaw referring to Plaintiff as

“pumpkin” or “hon” rather than by his name; (3) Shaw touching

Plaintiff’s leg or shoulder while speaking to Plaintiff; (4) Shaw

rubbing his own nipples with his shirt on; (5) Plaintiff hearing

Shaw tell a different male employee that Shaw wanted “to grab

[the employee’s] boobs”; and (5) Plaintiff observing Shaw touch

Jorrin’s shoulder while telling Jorrin he had a “sexy accent”. 

(Lidestri’s Statement ¶ 25; Pl.’s Statement ¶ 25.) Plaintiff

later testified that although he initially thought Shaw was just

joking, he later felt “uncomfortable” with Shaw’s conduct but was

still able to perform his job duties despite Shaw’s behavior. 

(Lidestri’s Statement ¶¶ 26-27; Pl.’s Statement ¶¶ 26-27.) 

After Jehens completed her investigation, she advised Jane

Oca, Lidestri’s Corporate Human Resources Manager, of what the

Lidestri’s Statement, Tr. of Oca’s Dep. 26:18-27:7.) 

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employees reported in the interviews. (Lidestri’s Statement ¶

53; Pl.’s Statement ¶ 53.) Oca then discussed the matter with

Lidestri’s Vice-President, Donna Yanicky, and the Director of the

Warehouse, Lee Biscardi, who collectively decided to terminate

Shaw’s employment. (Lidestri’s Statement ¶ 54; Pl.’s Statement ¶

54.) Shaw was terminated from Lidestri on December 22, 2010,

approximately eleven (11) days after Jehens first received

Jorrin’s letter. (Lidestri’s Statement ¶ 55; Pl.’s Statement ¶

55.)

Following Shaw’s termination, another warehouse shift

manager at Lidestri, specifically Michael DiMaio, became

Plaintiff’s shift manager for a couple of hours during the day. 

(Lidestri’s Statement ¶ 56; Pl.’s Statement ¶ 56.) Plaintiff

claims that almost immediately after his complaint of sexual

harassment to Human Resources, DiMaio started retaliating against

Plaintiff by: (1) on one occasion taking Plaintiff’s forklift and

instructing Plaintiff to get another one; (2) making statements

to other employees requesting that they watch what Plaintiff was

doing and let DiMaio know; (3) using curse words when speaking to

Plaintiff; (4) instructing Plaintiff on one occasion to go “break

bins” although this was not part of Plaintiff’s typical job

duties; (5) by requesting Plaintiff perform someone else’s job;

and (6) giving Plaintiff a write-up after Plaintiff failed to

work on a Saturday when he was told to report. (Lidestri’s

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Statement ¶ 57; Pl.’s Statement ¶ 57.)

Based on these facts, Plaintiff brings a two count complaint

asserting claims for sexual harassment and retaliation in

violation of the NJLAD. As to his claim for sexual harassment,

Plaintiff alleges he was “exposed to purposeful and egregious

sexual harassment, combined with willful indifference on the part

of upper management and/or participation on the part of

management” such that Lidestri is responsible for Shaw’s conduct. 

 (First Am. Compl. ¶¶ 24-25.) Plaintiff further claims that he

engaged in protected conduct under the NJLAD by complaining of

Shaw’s conduct, which was a determinative and motivating factor

in him being targeted and disciplined by Lidestri. (Id. ¶ 28a29a.) 

III. DISCUSSION

A. Summary Judgment Standard

In the present motion, Lidestri seeks the entry of summary

judgment in its favor on all of Plaintiff’s claims under the

NJLAD. Summary judgment is appropriate where the Court is

satisfied that “‘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 and that the moving party is entitled to a judgment

as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986) (citing FED. R. CIV. P. 56). 

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An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. “In considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence;

instead, the nonmoving party’s evidence ‘is to be believed and

all justifiable inferences are to be drawn in his favor.’” 

Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)

(citing Anderson, 477 U.S. at 255).

Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact. 

Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment

always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions

of ‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.” (citation omitted); see also Singletary v. Pa.

Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although

the initial burden is on the summary judgment movant to show the

absence of a genuine issue of material fact, ‘the burden on the

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moving party may be discharged by “showing” –- that is, pointing

out to the district court –- that there is an absence of evidence

to support the nonmoving party’s case’ when the nonmoving party

bears the ultimate burden of proof.”) (citing Celotex, 477 U.S.

at 325). 

Once the moving party has met this burden, the nonmoving

party must identify, by affidavits or otherwise, specific facts

showing that there is a genuine issue for trial. Celotex, 477

U.S. at 324. A “party opposing summary judgment may not rest

upon the mere allegations or denials of the ... pleading[s.]” 

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001)

(internal quotations omitted). For “the non-moving party[] to

prevail, [that party] must ‘make a showing sufficient to

establish the existence of [every] element essential to that

party's case, and on which that party will bear the burden of

proof at trial.’” Cooper v. Sniezek, 418 F. App’x 56, 58 (3d

Cir. 2011) (citing Celotex, 477 U.S. at 322 ). Thus, to

withstand a properly supported motion for summary judgment, the

nonmoving party must identify specific facts and affirmative

evidence that contradict those offered by the moving party. 

Anderson, 477 U.S. at 256-57.

B. NJLAD Sexual Harassment Hostile Environment Claims 

As the New Jersey Supreme Court has long recognized, “New

Jersey has a strong interest in maintaining ‘discrimination-free

10

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workplace[s]’ for workers.” Cutler v. Dorn, 955 A.2d 917, 923

(N.J. 2008) (citing Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445,

452 (1993)). The NJLAD makes it an unlawful 

[f]or an employer, because of the race, creed,

color, national origin, ancestry, age, marital

status, affectional or sexual orientation, sex ...

of any individual, ... to refuse to hire or employ

or to bar or to discharge ... from employment such

individual or to discriminate against such

individual in compensation or in terms, conditions

or privileges of employment.

Lehmann, 626 A.2d at 452 (citing N.J. STAT. ANN. § 10:5–12(a)).6

More recently the New Jersey Supreme Court reiterated that

“the basic requirements for determining whether workplace acts of

sexual harassment constitute prohibited discrimination under the

LAD” were established in Lehmann. Cutler, 955 A.2d at 924. 

Specifically, the New Jersey Supreme Court requires a plaintiff

claiming a hostile workplace based on acts of sexual harassment

to prove 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.

 The current version of Section 10:5-12(a) now also 6

prohibits discrimination or harassment based on civil union

status, domestic partnership status, genetic information, gender

identity or expression, and disability. N.J. STAT. ANN. § 10:5-

12(a) (West 2013). 

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Cutler, 955 A.2d at 924 (citing Lehmann, 626 A.2d at 453). 

7

Citing to Lehmann, Lidestri argues that to establish a 7

hostile work environment claim under the NJLAD a plaintiff “must

prove: (1) he suffered intentional discrimination which would not

have occurred but for his gender, (2) the discrimination was

severe or pervasive, (3) the discrimination detrimentally

affected him, (4) the discrimination would detrimentally affect a

reasonable person of similar gender in the position, and (5) the

existence of respondeat superior liability.” (Br. of Def.

Lidestri Foods, Inc. in Supp. of its Mot. for Summ. J. [Doc. No.

21-1] (hereinafter, “Def.’s Br.”), 8-9.) 

The Court notes that the elements recited by Lidestri are

not actually the elements delineated by the New Jersey Supreme

Court in Lehmann. It appears that Lidestri is relying on a

formulation of the elements required for a sexual harassment

hostile work environment claim brought under Title VII of the

Civil Rights Act announced by the Third Circuit in Andrews v.

City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). 

However, in Lehmann, the New Jersey Supreme Court, “[r]ather than

risking confusion by engrafting major revisions to the Andrews

test, ... announce[d] a new test” with respect to sexual

harassment hostile work environment claims. 626 A.2d at 453. 

In Lehmann, the Court expressly rejected Andrews’

requirement that a plaintiff show the employer’s discrimination

or harassment was intentional. Id. at 454 (“The LAD is not a

fault- or intent-based statute. A plaintiff need not show that

the employer intentionally discriminated or harassed her, or

intended to create a hostile work environment.”) The Court also

explicitly considered but abandoned that portion of Andrews which

examined a plaintiff’s subjective viewpoint of the alleged

harassment and opted instead for an objective standard. Id. at

457-58 (“[W]e choose an objective rather than a subjective

viewpoint because the purpose of the LAD is to eliminate real

discrimination and harassment.”); see also Cutler, 955 A.2d at

924 (“[N]either ‘a plaintiff's subjective response’ to the

harassment,... nor a defendant's subjective intent when

perpetrating the harassment, ... is controlling of whether an

actionable hostile environment claim exists. Whether harassing

conduct makes a work environment hostile is assessed by use of a

reasonable person standard.”)

Lidestri also relies on Kunin v. Sears Roebuck & Co., 175

F.3d 289, 293 (3d Cir. 1999) for the proposition that Plaintiff

must establish the existence of respondeat superior liability on

his sexual harassment claim, but the Court notes that this

element similarly stems from the Third Circuit’s holding in

Andrews. However, the New Jersey Supreme Court has held “that

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Although the Lehmann standard is couched in terms of a

“reasonable woman” — the relevant consideration in the majority

of cases — the standard clearly “applies to sexual harassment of

women by men, men by women, men by men, and women by women. The

LAD protects both men and women and bars both heterosexual and

homosexual harassment.” 626 A.2d at 454. Thus, when the

plaintiff is male, as is the case here, the only difference in

the standard is that a male plaintiff must “allege conduct that a

reasonable man would believe altered the conditions of his

employment and created a working environment that was hostile to

men.” Id.

B. Retaliation Under the NJLAD

Under the NJLAD, “it is unlawful to ‘take reprisals against

any person because that person has opposed any practices or acts

forbidden under the [LAD].’” Young v. Hobart West Group, 897

A.2d 1063, 1072 (N.J. Super. Ct. App. Div. 2005) (citing N.J.

STAT. ANN. § 10:5-12d). As recognized by the New Jersey Supreme

employer liability for supervisory hostile work environment

sexual harassment [under the NJLAD] shall be governed by agency

principles.” Lehmann, 626 A.2d at 461. Accordingly, “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” as well as those

situations where the “supervisor is acting outside the scope of

his or her employment,” but the supervisor's behavior falls

within one of the exceptions outlined by Section 219(2) of the

Restatement (Second) of Agency. Id. at 462.

Thus, to the extent Lidestri asserts arguments inconsistent

with New Jersey law, the Court disregards those arguments in

ruling on the present motion.

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Court, 

the protection against retaliation embodied in

the LAD is broad and pervasive, and must be seen

as necessarily designed to promote the integrity

of the underlying antidiscrimination policies of

the Act by protecting against reprisals “any

person” who has sought to protect his or her own

rights not to be discriminated against or who has

acted to support such conduct.

Quinlan v. Curtiss-Wright Corp., 8 A.3d 209, 221 (N.J. 2010)

(citing Craig v. Suburban Cablevision, Inc., 644 A.2d 112 (N.J.

Super. Ct. App. Div. 1994), aff'd, 660 A.2d 505 (1995)).

To establish a prima facie case for retaliation under the

NJLAD, a “plaintiff must demonstrate: (1) that [plaintiff]

engaged in protected activity; (2) the activity was known to the

employer; (3) plaintiff suffered an adverse employment decision;

and (4) there existed a causal link between the protected

activity and the adverse employment action.” Young, 897 A.2d at

1072 (citing Craig, 660 A.2d at 508). Significantly, “‘[t]he

central element of a [retaliation] claim under the LAD is that

the plaintiff “be engaged in a protected activity, which is known

by the alleged retaliator.”’” Mancuso v. City of Atlantic City,

193 F. Supp. 2d 789, 811 (citing Erickson v. Marsh & McLennan

Co., Inc., 569 A.2d 793, 803 (1990)); see also Montalvo v. New

Jersey, 2011 WL 677251, at *5 (N.J. Super. Ct. App. Div. Feb. 28,

2011.)8

 Although Erickson was a case involving a claim for 8

retaliatory discharge, both state and federal courts in New

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After a plaintiff satisfies its burden to establish a prima

facie case, “the defendant[] must ‘articulate a legitimate,

non-retaliatory reason for the [adverse employment] decision.” 

Young, 897 A.2d at 1072-73 (citing Romano v. Brown & Williamson

Tobacco Corp., 665 A.2d 1139, 1142 (N.J. Super. Ct. App. Div.

1995)). Upon defendant’s proffer of a legitimate, nonretaliatory reason for the challenged adverse employment

decision, “the plaintiff must come forward with evidence of a

discriminatory motive of the employer, and demonstrate that the

legitimate reason was merely a pretext for the underlying

discriminatory motive.” Romano, 665 A.2d at 1142.

IV. ANALYSIS

Lidestri argues that summary judgment is appropriate in this

case because: (1) Plaintiff has failed to demonstrate that the

conduct at issue on his sexual harassment claim was sufficiently

severe or pervasive enough to make a reasonable man believe the

conditions of his employment were altered and the working

environment was hostile or abusive; (2) Lidestri may not be held

vicariously liable for its employee’s conduct; and (3) Plaintiff

has failed to establish a prima facie case of retaliation.

Jersey have applied the concept of “known by the alleged

retaliator” in cases asserting general retaliation claims, such

as this, even in the absence of a retaliatory termination claim. 

See Mancuso, 193 F. Supp. 2d at 811; Montalvo, 2011 WL 677251, at

*5. 

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A. Sexual Harassment Hostile Environment Claim

Lidestri’s Liability as Plaintiff’s Employer

Even assuming that Shaw’s conduct was sufficiently serve or

pervasive enough in this case to make a reasonable man believe

the conditions of employment were altered and the working

environment was hostile, Plaintiff has failed to demonstrate a 9

 Lidestri argues that Shaw’s conduct was not objectively 9

severe or pervasive such that a reasonable man would have

believed that the conditions of his employment were altered and

the working environment was hostile or abusive. (Id.); see

Lehmann, 626 A.2d at 453-54. 

Assessing whether the alleged harassing conduct is severe or

pervasive, requires an examination of the totality of the

circumstances as opposed to consideration of each incident in

isolation. Cutler, 955 A.2d at 924. Here, the Court “must

consider the cumulative effect of the various incidents, bearing

in mind that each successive episode has its predecessors, that

the impact of the separate incidents may accumulate, and that the

work environment created may exceed the sum of the individual

episodes.” Lehmann, 626 A.2d at 455 (citations and internal

quotations omitted). Under this standard, it is “the cumulative

impact of separate successive incidents that cements the hostile

work environment.” Cutler, 955 A.2d at 925. 

In evaluating severity or pervasiveness the Court considers

the nature of the conduct itself, “rather than the effect of the

conduct on any particular plaintiff.” El-Sioufi v. St. Peter's

Univ. Hosp., 887 A.2d 1170, 1190 (N.J. Super. Ct. App. Div.

2005). Thus, “whether an environment is hostile or abusive can

be determined only [by] looking at all the circumstances, which

may include the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or

a merely offensive utterance; and whether it unreasonably

interferes with an employee's work performance.” El-Sioufi, 887

A.2d at 1190 (citations and internal quotations omitted). 

We consider this issue a close call. First, we note that

the defendant certainly considered it severe enough to terminate

Shaw. On the one hand, much of Shaw’s conduct was verbal in

nature and could be fairly described as teasing or off-hand

remarks. In this regard, it is important to note though that

“not every offensive remark, even if direct, is actionable. ...

epithets or comments which are merely offensive will not

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genuine issue of material fact exists supporting the imposition

of vicarious liability on Lidestri for Shaw’s conduct and thus

Lidestri is entitled to summary judgment on Plaintiff’s sexual

harassment hostile work environment claim. Plaintiff makes two

arguments relevant to Lidestri’s liability asserting first that

Lidestri is vicariously liable for Shaw’s actions because Shaw

was a supervisor capable of controlling Plaintiff’s work

environment. (Pl.’s Opp’n 4.) Additionally, Plaintiff contends

Lidestri is liable for its “failure to publish and train upon an

establish a hostile work environment claim.” El-Sioufi, 887 A.2d

at 1190 (citations and internal quotations omitted). The NJLAD

“is not intended to be a ‘general civility code’ for conduct in

the workplace ... Discourtesy or rudeness should not be confused

with ... harassment, and a ‘lack of ... sensitivity’ does not,

alone, amount to actionable harassment. Thus, ‘simple teasing,’

offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the ‘terms

and conditions’ of employment.” Heitzman v. Monmouth Cnty., 728

A.2d 297, 304 (N.J. Super. Ct. App. Div. 1999), overruled on

other grounds, Cutler, 955 A.2d 917(2008). That having been

said, “in certain circumstances, even a single [incident] can be

so severe as to pollute the work environment, rendering it

irretrievably hostile.” Cutler, 955 A.2d at 925 n.7. While it

does not appear that Shaw’s actions interfered with Plaintiff’s

ability to perform his job duties, his conduct exceeded mere offhanded comments. In addition to repeated, unexplained, and

potentially offensive touching of the Plaintiff’s shoulder and

leg, Shaw also touched himself in a sexually suggestive way. 

Moreover, the content of his remarks were sexually explicit,

referred to Plaintiff’s genitalia, and attributed female

characteristics to a male co-worker. In addition, this behavior

was observed by others and occurred in conjunction with sexually

offensive conduct by Shaw toward another employee. We are unable

to conclude that the totality of these circumstances here are not

sufficiently severe and pervasive as a matter of law. In any

event, because Lidestri has presented sufficient evidence

demonstrating it cannot be held vicariously liable for Shaw’s

conduct, we need not resolve this issue.

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effective [anti-sexual harassment] policy for all employees.” 

(Id.)

(i) Whether Shaw Qualifies as a Supervisor

An employer’s liability under the NJLAD for claims related

to sexual harassment by a supervisor is largely dependant upon

the facts of a particular case. Lehmann, 626 A.2d at 464. 

Generally, an employer can be held vicariously liable for conduct

of a supervisor where the supervisor acted within the scope of

his or her employment. Id. Additionally, in the more common

situation where the supervisor acted outside the scope of his or

her employment, the employer can be held vicariously liable “if

the employer contributed to the harm through its negligence,

intent, or apparent authorization of the harassing conduct, or if

the supervisor was aided in the commission of the harassment by

the agency relationship.” Id.; see also Herman v. Coastal Corp.,

791 A.2d 238, 251 (N.J. Super. Ct. App. Div. 2002) (explaining

that an employer cannot be held liable for sexual harassment

under the NJLAD “in the absence of a showing that the harassing

employee was acting within the scope of his employment, or that

the employer was negligent, or had intended the conduct.”)

Thus, as explained by the New Jersey Supreme Court in

Lehmann, “an employer can be held liable for compensatory damages

stemming from a supervisor’s creation of a hostile work

environment” in one of three circumstances: (1) where “the

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employer grants the supervisor the authority to control the

working environment and the supervisor abuses that authority to

create a hostile work environment[;]” or (2) where “the employer

ha[s] actual or constructive notice of the harassment[;]” or (3)

where, in the absence of actual or constructive notice, “the

employer negligently or recklessly failed to have an explicit

policy that bans sexual harassment and that provides an effective

procedure for the prompt investigation and remediation of such

claims.” 626 A.2d at 464. 

“A supervisor has a unique role in shaping the work

environment. Part of a supervisor's responsibilities is the duty

to prevent, avoid, and rectify invidious harassment in the

workplace.” Herman, 791 A.2d at 252. Determining precisely

which employees qualify as supervisors “for purposes of vicarious

liability for compensatory damages” depends upon the “functional

assignments” those employees maintain in the workplace. Cavuoti

v. New Jersey Transit Corp., 735 A.2d 548, 558 (1999). Moreover,

the use of “a mere title of ‘manager’ or ‘supervisor’ does not by

itself suffice to impute that employee’s knowledge or actions to

the employer.” Id. at 557-58. Putting aside arbitrary position

titles utilized by any given employer then, generally “a

supervisor has the authority to hire, fire, discipline, control

employees’ wages or control employees’ schedules.” Herman, 791

A.2d at 254 (citing Cavuoti, 735 A.2d at 558). As recognized by 

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New Jersey courts, “[a]n employer is generally liable for a

hostile work environment created by a supervisor because the

power an employer delegates to a supervisor ‘to control the

day-to-day working environment’ facilitates harassing conduct.” 

Herman, 791 A.2d at 254 (citation omitted); see also Lehmann, 626

A.2d at 462.

To determine whether an offending employee qualifies as a

supervisor, the Court must consider “whether the power the

offending employee possessed was reasonably perceived by the

victim, accurately or not, as giving that employee the power to

adversely affect the victim’s working life.” Entrot v. BASF

Corp., 819 A.2d 447, 459 (N.J. Super. Ct. App. Div.2003). 

Relevant factors in this determination include the power to fire

or demote, the power to direct job functions, and any evidence

that the alleged harasser possessed influence to control the

workplace or restrict the alleged victim's freedom to ignore the

complained-of conduct. Id. 

Here, Plaintiff has failed to establish that a genuine issue

of material facts exists from which a jury could find that Shaw

qualifies as a “supervisor” under the NJLAD for purposes of

holding Lidestri vicariously liable for his conduct. Although

Shaw’s job title was that of a warehouse shift manager, the

record demonstrates that Shaw did not have any independent

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authority or power to hire, fire, or demote Plaintiff, to set 10

Plaintiff’s schedule, or to exercise control over Plaintiff’s 11

wages or any other form of compensation Plaintiff received. The

record also establishes that Shaw possessed no independent

authority to discipline Plaintiff, or any employees, but could

only do so with the approval of Roger Carter. (Ex. 7 to

Lidestri’s Statement, Tr. of Shaw’s Dep. 15:15-18.) This

evidence leaves no genuine issue of material fact from which a

jury could reasonably conclude that Plaintiff actually perceived

Shaw as a supervisor who possessed power to adversely affect

Plaintiff’s work environment. 

It is also undisputed that Shaw’s main responsibility was

oversight of the 1600 Building where his office was located, and

that he only came by the 1550 Building where Plaintiff worked

approximately two or three times a day in passing to ensure that

the employees were completing their assignments. Accordingly,

the record reflects that Shaw did not possess any notable degree

 In this regard, the record makes clear that decisions 10

regarding terminations and demotions were handled by Jehens in

Human Resources with the guidance or approval of Oca, the

Corporate Human Resources Manager. Shaw himself testified that

he only “sat in on the hiring process” but apparently did not

independently make final personnel decisions. (Ex. 7 to

Lidestri’s Statement, Tr. of Shaw’s Dep. 15:21-23.) 

 Shaw testified that he was not responsible for scheduling 11

employee shifts but rather “just [for] supervising to make sure

all the daily activities were being completed.” (Ex. 7 to

Lidestri’s Statement, Tr. of Shaw’s Dep. 15:8-12.) 

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of control over Plaintiff’s day-to-day work environment in the

1550 Building particularly where Plaintiff only worked with Shaw

two days a week on Thursdays and Fridays. No reasonable jury

could infer that these infrequent, minimal, and momentary

“passing through” visits twice a week amounted to day-to-day

control over Plaintiff’s working environment in the 1550

Building. 

To the extent Plaintiff perceived Shaw as possessing some

sort of power over Plaintiff, this perception certainly did not

restrict Plaintiff’s freedom and ability to ignore and disapprove

of Shaw’s conduct. Specifically, Plaintiff testified at his

deposition that he typically responded to Shaw’s conduct by

indicating his disapproval, informing Shaw that his actions made

Plaintiff uncomfortable, and asking Shaw to stop. (See Ex. 2 to

Lidestri’s Statement, Tr. of Pl.’s Dep. 57:2-4.)

Plaintiff, as the party opposing summary judgment on this

issue, is required to identify specific facts and affirmative

evidence that contradict those offered by Lidestri. Plaintiff

has failed to do so here arguing only that “the harassment was in

fact conducted by a supervisor, that same supervisor was aware of

his own conduct” and “[t]hus, Defendant had knowledge of the same

through its agents to whom they delegated responsibility.” 

(Pl.’s Br. 9.) The New Jersey Supreme Court has expressly

rejected Plaintiff’s argument and held that “a mere title of

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‘manager’ or ‘supervisor’ does not by itself suffice to impute

that employee’s knowledge or actions to the employer.” Cavuoti,

735 A.2d at 558. To impose liability on Lidestri for Shaw’s

conduct, Plaintiff was required to demonstrate more. He has

failed to do so and thus Lidestri is entitled to summary judgment

on Plaintiff’s sexual harassment claim because Shaw does not

qualify as a supervisor under the NJLAD.

(ii) Maintenance of an Anti-Harassment Policy

As an alternative basis for liability, Plaintiff argues that

Lidestri negligently failed to publish and train upon an

effective anti-sexual harassment policy for all employees. 

(Pl.’s Br. 4.) Under New Jersey law, courts “adhere to the

principle that if an employer has exercised due care in acting to

prevent a sexually discriminatory hostile work environment,

vicarious liability should not attach. The establishment of an

effective anti-sexual harassment workplace policy and complaint

mechanism evidences an employer’s due care and may provide

affirmative protection from vicarious liability.” Gaines v.

Bellino, 801 A.2d 322, 323 (N.J. 2002); see also Cavuoti, 735

A.2d at 556 (recognizing that New Jersey law “afford[s] a form of

a safe haven [from vicarious liability for the harassing conduct

of an employee] for employers who promulgate and support an

active, anti-harassment policy.”) 

In order for an employer to enjoy the benefit of that safe

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haven from vicarious liability based on maintaining an active

anti-harassment policy, the following circumstances are

“relevant: periodic publication of the employer's anti-harassment

policy, the presence of an effective and practical grievance

process for employees to use, and training for workers,

supervisors, and managers concerning how to recognize and

eradicate unlawful harassment.” Gaines, 801 A.2d at 330 (citing

Cavuoti, 735 A.2d at 556). 

Additionally, “[a]n employer has a clear duty not only to

take strong and aggressive measures to prevent invidious

harassment, but also to correct and remediate promptly such

conduct when it occurs.” Herman, 791 A.2d at 252 (citing Payton

v. New Jersey Turnpike Auth., 691 A.2d 321, 327-28 (1997)). As

the New Jersey Supreme Court noted in Gaines, “[t]he efficacy of

an employer's remedial program is highly pertinent to an

employer’s defense” that its actions absolve it from all

liability for a plaintiff’s claims. 801 A.2d at 330 (citing

Payton, 691 A.2d at 327). “‘[E]ffective’ remedial measures ...

include the process by which the employer arrives at the

sanctions that it imposes on the alleged harasser” and are

reviewed in light of the “investigation—including [its]

timeliness, thoroughness, [the] attitude toward the allegedly

harassed employee, and the like—as well as by the result[.]” 

Payton, 691 A.2d at 327. 

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Plaintiff relies on Gaines for the proposition that the mere

existence of an anti-harassment policy alone is insufficient to

defeat a harassment claim, particularly on summary judgment. 

(Pl.’s Br. 8.) Plaintiff contends that in this case “there

clearly exist genuine issues of material fact as to whether

Defendant implemented an effective anti-harassment policy.” 

(Id.) As an initial matter, Plaintiff argues that there was “no

‘unequivocal commitment from the top in this matter’” to

demonstrate that Lidestri’s policies against sexual harassment

were more than mere words, but were backed up by consistent

practice. (Id.) Plaintiff specifically relies on the fact that

the complained-of conduct here came from a member of management

and that other members of management were aware of Plaintiff’s

allegations and did not report the allegations. (Id. at 8-9.) 12

Plaintiff also argues that Lidestri never conducted any classes,

seminars, trainings, or other instructional opportunities for

non-managerial employees, like Plaintiff, regarding the company’s

policies. (Id. at 9.) Finally, Plaintiff points to the fact

 In his attempt to argue that there was no commitment from 12

the top to enforce Lidestri’s policies, Plaintiff notes that

Roger Valladares was purportedly terminated for his failure to

report allegations of sexual harassment based on Shaw’s conduct. 

Rather than establishing that Lidestri’s policies were mere

words, Plaintiff’s argument actually supports the notion that

Lidestri backed up its policies in practice, taking sexual

harassment allegations so seriously that the company not only

terminated the alleged harasser, Shaw, but also a member of

management who failed to timely report alleged sexual harassment.

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that Lidestri’s policies were revised after Plaintiff was hired

but that he never received an updated version of the policy. 

(Id.)

Despite Plaintiff’s arguments, the Court finds that there is

no evidence in this case demonstrating that Lidestri’s policies

were merely words. Rather, it is undisputed that Lidestri

maintains both a “Sexual Harassment” policy which expressly

prohibits sexual discrimination or harassment, and a broader

“Non-Harassment” policy, both of which are set forth not only in

the employee handbook, but are separately provided to new

employees at the time they are hired by Lidestri. (Lidestri’s

Statement ¶¶ 3-4, 8; Pl.’s Statement ¶¶ 3-4, 8.) Both of these

policies are specifically reviewed with employees as part of

their new employee orientation, and employees are required to 13

sign off on receipt of both policies. (Lidestri’s Statement ¶¶

5-6; Pl.’s Statement ¶ 6.) Plaintiff concedes that at the time

he was hired, he signed both of Lidestri’s policies.14

 In an attempt to dispute this fact, Plaintiff points to 13

the deposition of Jehens to argue that she had no knowledge of

any training Plaintiff received. A review of the deposition

testimony relied on by Plaintiff, however, demonstrates only that

Jehens could not recall being present at any training for

Plaintiff. (Ex. A to Pl.’s Statement, Tr. of Jehens’ Dep. 23:4-

10.) 

 Plaintiff later testified that he did not recall receiving 14

the Sexual Harassment Policy but acknowledged that he signed it a

copy of it on November 17, 2008. (See Ex. 2 to Lidestri’s

Statement, Tr. of Pl.’s Dep. 78:24-79:9; see also Ex. 4 to

Lidestri’s Statement, Sexual Harassment Policy signed by

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(Lidestri’s Statement ¶ 7; Pl.’s Statement ¶ 7.)

The Sexual Harassment policy provides for a reporting

mechanism regarding complaints whereby “[e]mployees who believe

they have been the subject of sexual harassment should report

their charge immediately to any supervisor or Jane Oca in the

Human Resources Department” and Oca’s contact information is

readily accessible on the company website, and was so in 2010. 

(Lidestri’s Statement ¶¶ 9-10; Pl.’s Statement ¶¶ 9-10.) The

Sexual Harassment policy further explains that Lidestri will

promptly and throughly investigate all complaints. (Lidestri’s

Statement ¶ 11; Pl.’s Statement ¶ 11.) 

In the face of this evidence the Court finds that this case

is distinguishable from Gaines, where several issues of disputed

facts were present, and that no reasonable jury could conclude

that Defendant did not have an adequate anti-harassment policy in

place. Lidestri made periodic publication of its policies

available to employees through the hiring and orientation

process; Plaintiff signed off on receipt of the policies and

testified that he understood that he could file a complaint with

Human Resources if he believed he was being sexually harassed,

(see Lidestri’s Statement ¶ 30; Pl.’s Statement ¶ 30); presented

employees with a practical and effective grievance process for

reporting complaints to any supervisor or member of the Human

Plaintiff.)

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Resources Department in the company; by providing employees a

certain degree of training and review of the policy during

orientation; and by providing supplemental training on the

relevant policies to supervisors and management employees. 

Furthermore, the Court must consider the efficacy of

Lidestri’s remedial program because it is highly pertinent to

Lidestri’s defense that its actions absolve it from liability

here. In this regard, the record evidence demonstrates that as

soon as Jorrin’s complaint letter was brought to the attention of

the company on December 13, 2010, Lidestri took swift and

thorough action to investigate Plaintiff’s allegations, as well

as Jorrin’s, and put a stop to Shaw’s conduct. Specifically,

Lidestri received the letter on December 13, 2010 at 4:45 p.m.,

through Jehens, its top Human Resource official at the Pennsuaken

facility. The following morning, Jehens began an internal

investigation of Plaintiff’s allegations against Shaw, and

Lidestri suspended Shaw immediately pending the outcome of the

investigation in order to prevent Shaw from engaging in any

further conduct. Jehens’ investigation consisted of interviews

of ten Lidestri employees over an eight (8) day period. Within

just one day of completing her investigation, Jehens reported her

findings to Oca, Lidestri’s Corporate Human Resources Manager,

who consulted Lidestri’s Vice-President, Donna Yanicky, and the

Director of the Warehouse, Lee Biscardi. That same day, December

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22, 2010, these individuals collectively decided to terminate

Shaw’s employment based on the sexual harassment allegations

revealed in Jehens’ investigation — just eleven days from the

receipt of Jorrin’s letter, and a mere seven business days. This

undisputed evidence is sufficient to support the grant of summary

judgment to Lidestri on Plaintiff’s sexual harassment claim.15

B. Retaliation Claims 

Plaintiff alleges that he suffered retaliation in this case

based on the conduct of another warehouse shift manager, Michael

DiMaio. Specifically, he claims he was subjected to retaliation

in the following ways: (1) on one occasion taking Plaintiff’s

forklift and instructing Plaintiff to get another one; (2) making

statements to other employees requesting that they watch what

Plaintiff was doing and let DiMaio know; (3) using curse words

when speaking to Plaintiff; (4) instructing Plaintiff on one

occasion to go break bins although this was not part of

Plaintiff’s typical job duties; (5) by requesting Plaintiff

perform someone else’s job on the glass line; and (6) giving

 To the extent Plaintiff challenges the thoroughness of 15

Jehens’ investigation by claiming that the notes of her interview

with Plaintiff do not accurately reflect his statements to her,

Plaintiff failed to submit a copy of Jehens’ notes as evidence in

opposition to the motion and the Court is therefore unable to

evaluate Plaintiff’s contention at this time. Plaintiff’s vague

deposition testimony on this issue, standing alone, is

insufficient to overcome the evidence here that Lidestri took

thorough, prompt, and effective remedial measures to put a stop

to Shaw’s conduct. 

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Plaintiff a write-up after Plaintiff failed to work on a Saturday

when he was told to report. (Lidestri’s Statement ¶ 57; Pl.’s

Statement ¶ 57.) 

With respect to these claims, Lidestri argues that these

incidents do not constitute adverse employment actions for

purposes of a prima facie case of retaliation. (Def.’s Br. 16-

17.) Lidestri also contends that Plaintiff cannot demonstrate a

prima facie case of retaliatory termination because Plaintiff

cannot establish any causal connection between his internal

harassment complaint and DiMaio’s conduct. (Id. at 17.) 

Lidestri also points to Plaintiff’s own testimony that he had “no

idea” why DiMaio would want to retaliate against him, and that

DiMaio was not even aware of any Plaintiff’s complaint to Human

Resources regarding Shaw. (Id.) 

The Court need not address whether the DiMaio’s conduct

constitutes an adverse employment action or whether a causal link

exists here because there is absolutely no evidence that DiMaio –

the alleged retaliator – was aware of Plaintiff’s protected

activity. It is undisputed that Plaintiff never had any 16

conversations with DiMaio about Shaw in general, and specifically

never had any conversations regarding Plaintiff’s allegations of

 The parties do not dispute that Plaintiff engaged in 16

protected activity as required under the NJLAD for a retaliation

claim by submitting a sexual harassment complaint to Human

Resources regarding Shaw. 

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sexual harassment against Shaw. (Lidestri’s Statement ¶ 61;

Pl.’s Statement ¶ 61.) DiMaio testified that other than Jorrin,

DiMaio did not “know of anyone else, [or any] ... names that came

up[.]” (Ex. 11 to Lidestri’s Statement, Tr. of DiMaio’s Dep.

29:2-5. DiMaio explicitly stated the he was never told that

Plaintiff made a sexual harassment complaint against Shaw, and

that he did not “even known who was in on the investigation other

than” Jorrin. (Id. at 29:8-10, 14-17.) Moreover, Plaintiff 17

testified that he had “no idea” why DiMaio would want to

retaliate against him, but simply believed that it was based on

his complaint to Human Resources about Shaw. (Ex. 2 to

Lidestri’s Statement, Tr. of Pl.’s Dep. 95:3-5; Pl.’s Statement ¶

63.) Thus there is no evidence from which a reasonable

factfinder could conclude that DiMaio had knowledge of

Plaintiff’s protected activity and therefore, Plaintiff cannot

establish a prima facie case of retaliation under the NJLAD. 

Accordingly, this claim fails as a matter of law and Lidestri is

entitled to summary judgment.

 Plaintiff denies that DiMaio was not aware of any 17

complaints Plaintiff made against Shaw and argues that DiMaio

knew there was an investigation going on, relying on the

deposition testimony of Jehens. (Pl.’s Statement ¶ 62.) 

However, Plaintiff mischaracterizes Jehens’ testimony. While

Jehens testified that DiMaio knew generally about an

investigation taking place, she specifically noted that she had

not told DiMaio what or who the investigation involved. (Ex. A

to Pl.’s Statement, Tr. of Jehens’ Dep. 72:14-20.)

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V. CONCLUSION

For the foregoing reasons, Defendant Lidestri Foods, Inc.’s

motion for summary judgment is granted. An Order consistent with

this Opinion will be entered.

Dated: March 28, 2013 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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