SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3963-17T1

JENNIFER L. SCHIAVONE,

Plaintiff-Respondent,

v.

THE STATE OF NEW 

JERSEY DEPARTMENT 

OF CORRECTIONS,

Defendant-Appellant.

_________________________

Argued December 11, 2019 – Decided

Before Judges Haas, Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Docket No. L-0657-15.

James M. Duttera, Deputy Attorney General, argued the 

cause for appellant (Gurbir S. Grewal, Attorney 

General, attorney; Melissa H. Raksa, Assistant 

Attorney General, of counsel; Deborah Ann Hay, 

Deputy Attorney General, on the briefs).

Andrew William Dwyer argued the cause for 

respondent (The Law Offices of Jeremy C. Rosenbaum 

and Dwyer & Barrett, LLC, attorneys; Jeremy C. 

NOT FOR PUBLICATION WITHOUT THE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.

December 26, 2019
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A-3963-17T1

Rosenbaum and Andrew Dwyer, of counsel and on the 

brief).

PER CURIAM

Defendant Department of Corrections (DOC) appeals from a jury verdict 

awarding plaintiff Jennifer Schiavone $100,000 in emotional distress damages 

and $216,875 in punitive damages1 on her claim that the DOC subjected her to 

a hostile work environment based on her gender in violation of the Law Against 

Discrimination (LAD), N.J.S.A. 10:5-1 to -49. On appeal, the DOC contends 

the trial judge erred by: (1) denying its pre-trial motion for summary judgment

and its motions at trial for a directed verdict based on the DOC's claim that 

plaintiff failed to establish the elements of a LAD claim, and because the DOC

had proven an affirmative defense to plaintiff's cause of action; and (2) making 

several mistakes in his evidentiary rulings. Based upon our review of the record 

and applicable law, we affirm.

I.

Plaintiff began work for the DOC at the New Jersey State Prison (NJSP) 

in August 2011, first serving as a corrections officer recruit. The DOC promoted 

1

 The trial judge also awarded plaintiff $585,014.35 in counsel fees and costs, 

and entered a judgment in favor of plaintiff reflecting a total award of 

$901,889.35.
3

A-3963-17T1

her to senior corrections officer in August 2012, and plaintiff retained that title 

through the trial. The DOC assigned plaintiff to the Central Control Unit 

(Central Control) in June or July 2013. This was considered a desirable position 

because, among other reasons, it did not involve direct interaction with inmates.

Throughout the course of plaintiff's employment, the DOC maintained a 

policy prohibiting discrimination in the workplace based on N.J.A.C. 4A:7-3.1. 

This policy was provided to all employees annually, and was available online, 

and posted in conspicuous work locations. 

The policy provided that:

employment discrimination or harassment based upon 

the following protected categories are prohibited and 

will not be tolerated; race, creed, color, national origin, 

nationality, ancestry, age, sex/gender (including

pregnancy), marital status, civil union status, domestic 

partnership status, familial status, religion, affectional 

or sexual orientation, gender identity or expression, 

atypical hereditary cellular or blood trait, genetic 

information, liability for service in the Armed Forces 

of the United States, disability.

The policy also stated that "[i]t is a violation of this policy to engage in sexual 

(or gender based) harassment of any kind, including hostile work environment 

harassment, quid pro quo harassment, or same-sex harassment."

The DOC also promulgated a procedure for internal complaints alleging 

discrimination in the workplace. This procedure directed employees to 
4

A-3963-17T1

immediately report any suspected violations of the policy prohibiting 

discrimination in the workplace to any supervisory employee in the department. 

While the necessary forms were available to employees online, complaints did 

not need to be made in writing.

The supervisor was supposed to forward all complaints to the DOC's 

statewide Equal Employment Opportunity/Affirmative Action (EEO/AA)

director. This director would determine if an investigation into the alleged 

harassment or discrimination was required. If it was, the EEO/AA director 

would then develop a report summarizing the investigation for submission to the 

DOC Commissioner for appropriate action.

Antonio Campos, an assistant warden, served as the liaison to the 

statewide EEO/AA office at NJSP. He testified at trial that he would typically 

forward any allegations to the EEO/AA director, though employees were free to 

forward such complaints themselves. Some complaints did not implicate these 

policies and, in those cases, Campos would advise employees how to handle 

conflicts with their colleagues.
5

A-3963-17T1

At trial,2 plaintiff identified several incidents that she alleged were acts of 

gender-based discrimination, primarily involving a rumor that she was having 

an extramarital affair with a high-ranking prison official, S.D.,

3 beginning 

around the time of her transfer to her coveted Central Control position. This

speculation arose after plaintiff posted a photograph on Facebook showing her 

dining with a man who resembled S.D., and increased after S.D. once greeted 

plaintiff by her first name in the presence of other employees. 

Plaintiff and S.D. denied this affair, but the rumor continued to spread 

through their workplace. Plaintiff and S.D. heard the rumor repeated by 

numerous colleagues on a near-daily basis, including from plaintiff's sister who 

worked in another DOC facility. Officer Amy Foy testified she overheard 

several officers discussing the affair in the prison dining room. Multiple 

colleagues suggested that plaintiff received preferential treatment, including the 

Central Control assignment, because of the affair. 

In June 2013, shortly after plaintiff's assignment to Central Control, 

Lieutenant Christopher Danielson told Sergeants Orlando Gil and Maurice 

2

 The evidence plaintiff presented at trial expanded upon, but still largely 

mirrored, the facts she raised in opposing the DOC's pre-trial motion for 

summary judgment.

3

 We use initials to refer to this individual in order to protect his privacy.
6

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Jackson that he did not "give a fuck who [plaintiff] fucked to get this job" and 

that he would "burn her." He made related comments to plaintiff in November 

2013, when he referred to S.D. as her "boo."

On July 19, 2013, Lieutenant Jamie Vaux confronted S.D. regarding the 

alleged affair and threatened to tell S.D.'s wife. 

At an unstated time in 2013 or 2014, plaintiff's immediate supervisor, 

Lieutenant Zsuzsanna Rogoshewski, told another lieutenant not to say anything 

private in front of plaintiff because she was "with" S.D. and "[s]he'll tell." 

Throughout 2014, Rogoshewski told various lieutenants that plaintiff was 

protected because she was having an affair with S.D.. 

On January 25, 2014, Rogoshewski called plaintiff an idiot, and 

temporarily reassigned her from her preferred role as blotter officer to the 

armory. Rogoshewski temporarily assigned a similarly-qualified male as blotter 

officer. Around this time, Rogoshewski told plaintiff she was not performing 

her work properly, and plaintiff reported this to her union representatives.

On March 10, 2014, Rogoshewski's fiancé, Lieutenant Patrick Miller, 

visited her in Central Control while he was supposed to be on duty elsewhere in 

the prison. The DOC began an investigation of Miller's conduct in leaving his 
7

A-3963-17T1

post, referred to as the "Sanderson investigation," and plaintiff served as a 

witness on behalf of the DOC. 

Four days later, Miller and Rogoshewski approached plaintiff in Central 

Control. Miller stated, "[m]e and [Rogoshewski] are going away on vacation to 

be unprofessional and inappropriate," and Rogoshewski said, "people need to 

mind their own fucking business," apparently in reference to plaintiff's role in 

the Sanderson investigation. Miller also stated he was taking a coffee break 

with Rogoshewski, and "anyone that cares to comment can shut the fuck up 

now." At trial, Miller denied making these statements. On March 16, 2014, 

Rogoshewski again told plaintiff that "people need to mind their own fucking 

business." 

On March 21, 2014, Rogoshewski invited Vaux to Central Control and 

openly discussed plaintiff's alleged affair with S.D., stating "[t]hat's her over 

there, that's who's sleeping with the [high-ranking official]." Throughout March 

and April 2014, Rogoshewski refused to greet plaintiff when greeting other 

officers. 

Testifying for the DOC, Lieutenant Shawn Davis asserted that 

Rogoshewski treated men and women equally. Lieutenant Michael Ptzaszenski 

claimed at trial that Rogoshewski was "rough around the edges," and was 
8

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demanding of everyone, whether male or female. However, Ptzaszenski 

admitted he never saw plaintiff and Rogoshewski interact in the workplace.

On April 14, 2014, Rogoshewski temporarily reassigned plaintiff from 

blotter officer to inmate gym and mail delivery. Similarly, at an unstated time 

in 2014, Miller temporarily moved plaintiff from Central Control to the West 

Compound. On April 25, 2014, Danielson told coworkers to be careful around 

plaintiff because she "might tell." 

In July 2014, Officer Julie Houseworth threw papers at plaintiff, which 

plaintiff believed to be an act of gender discrimination because Houseworth "had 

an issue working with a lot of women" and because she had never seen 

Houseworth do this to a male. In mid-2014, Houseworth asked plaintiff if she 

planned to "blow" S.D. Houseworth later apologized for the remark.

On October 24, 2014, Houseworth kicked a chair or trash can and told 

plaintiff, "I have fucking had it with you," and then filed a report saying plaintiff 

had reached for her gun as a means of threatening Houseworth. Quiana 

Whitmore investigated the matter on behalf of the DOC, but testified she could 

not verify Houseworth's account of the incident. Houseworth did not testify at 

trial. Shortly thereafter, Jackson discouraged plaintiff from reporting 

Houseworth for making a false report in connection with the matter. Two 
9

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months later, Jackson told someone not to confuse him with plaintiff, saying 

"don't you ever call me that name again, that's an insult." 

On January 4 or 5, 2015, plaintiff was injured when she was moving a 

food cart. Beginning in January 2015, plaintiff went on a medical leave of 

absence as a result of this injury. 

Plaintiff complained to Campos, the EEO/AA liaison, orally regarding the 

rumored affair at least five times beginning in March or April 2014. She also 

relayed these complaints to S.D. and Ptzaszenski on unspecified dates. 

Specifically, plaintiff complained of sexual harassment and that "supervisors 

won't stop accusing me of sleeping with the [high-ranking official]," and 

emphasized that she did not want to work with Rogoshewski because she felt 

unsafe doing so. She also complained about the conduct by Miller, Houseworth, 

and Jackson, but did not report the incidents with Danielson or Vaux. Plaintiff 

did not explicitly use the term "gender discrimination" when making these 

complaints.

Campos told plaintiff to ignore the rumors regarding her involvement with 

S.D., and to "keep dodging the bullets," but he nonetheless questioned S.D.

about the alleged affair. Significantly, Campos did not offer plaintiff the

opportunity to complete any paperwork detailing her allegations and plaintiff 
10 A-3963-17T1

did not request to put these complaints in writing because she was embarrassed. 

Campos took no other action, and Leila Lawrence, the statewide EEO/AA 

director for the DOC, testified at trial that Campos did not relay any complaints 

from plaintiff. Ptzaszenski told plaintiff to ignore Rogoshewski or move to a 

different shift. During his testimony, Campos acknowledged that plaintiff came 

to him with complaints, but he felt that gossip and rumors did not "touch upon 

the [discrimination] policy" and, therefore, he expressed surprise that plaintiff 

expected him to pursue the matter. 

Other employees, including Foy, had also complained of gender 

discrimination to Campos. At trial, Foy testified that while Campos offered her 

the opportunity to complete EEO documentation, she declined to do so. 

Plaintiff testified that she was embarrassed, ashamed, and disgusted by 

the rumored affair with S.D.. She alleged she suffered anxiety and depression 

as a result of the gender discrimination. Plaintiff's sister, Jenna Allar, testified 

that plaintiff became withdrawn and would get angry more quickly after these 

incidents. Plaintiff also began to experience hair loss, stomach pains, lack of 

sleep, weight gain, diarrhea, and increased crying, causing her to use a number 

of sick days. She did not go out to socialize as often as she used to or perform 

household chores. 
11 A-3963-17T1

On March 23, 2015, plaintiff filed a complaint against the DOC alleging: 

(1) a gender-based hostile work environment in violation of the LAD (count 

one); (2) retaliation under the LAD (count two); and (3) whistleblower 

retaliation under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 

34:19-1 (count three). The DOC filed an answer, denying the allegations in 

plaintiff's complaint. In 2017, plaintiff stipulated to the dismissal of counts two 

and three of her complaint.4 

Following the completion of discovery, the DOC unsuccessfully moved 

for summary judgment. The matter was then tried over multiple dates before a 

jury. At the close of plaintiff's case, the DOC moved for a directed verdict, 

alleging that she had not met the burden of proof for her claims, and the trial 

judge denied the motion. The judge also denied the DOC's subsequent motion 

for a directed verdict at the close of the trial. As previously noted, the jury found 

in favor of plaintiff. This appeal followed.

4

 On September 26, 2017, plaintiff filed a second lawsuit, Schiavone v. New 

Jersey Department of Corrections, Docket No. L-2099-17 (Schiavone II), 

involving allegations of discrimination which began in April 2016, unrelated to 

the claims in this matter. The court denied a motion in Schiavone II to 

consolidate these two matters, and plaintiff stipulated that she would restrict her 

damages in this matter to those claims which arose prior to Schiavone II. 
12 A-3963-17T1

II.

In Point I of its brief, the DOC asserts that the judge erred by denying its 

motion for summary judgment. The DOC argues that plaintiff failed to establish 

a prima facie case of a hostile work environment under the LAD and, even if 

she had, the DOC satisfied the elements of the affirmative defense set forth in 

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries 

v. Ellerth, 524 U.S. 742 (1998). We disagree.

Summary judgment is appropriate where "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). Our review of a ruling on summary judgment is de novo, applying 

the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 

477-78 (2013). That standard is "whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that 

one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of 

Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 251-52 (1986)). 
13 A-3963-17T1

When determining whether there is a genuine issue of material fact, the 

court must consider "whether the competent evidential materials presented, 

when viewed in the light most favorable to the non-moving party, are sufficient 

to permit a rational factfinder to resolve the alleged disputed issue in favor of 

the non-moving party." Brill, 142 N.J. at 540. While the trial court's legal 

conclusions are owed no deference, Nicholas, 213 N.J. at 478, this court should 

affirm the judgment if it finds that the trial court's conclusions of law were 

correct. Henry v. New Jersey Dept. of Human Servs., 204 N.J. 320, 330 (2010).

In assessing hostile work environment based on gender discrimination 

claims, we employ the same analysis developed under the federal antidiscrimination laws in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 

(1973). In order to avoid summary judgment in the employer's favor, the 

McDonnell Douglas test requires an employee to prove a prima facie case of 

discrimination. Victor v. State, 203 N.J. 383, 408 (2010). This burden has 

appropriately been described as "rather modest." Zive v. Stanley Roberts, Inc., 

182 N.J. 436, 447 (quoting Marzano v. Compute Sci. Corp., 91 F.3d 497, 508 

(3d Cir. 1996)).

In Lehmann v. Toys 'R' Us, Inc., our Supreme Court delineated the 

standards of proof that are necessary in order to bring a discrimination claim 
14 A-3963-17T1

premised on acts of sexual harassment. 132 N.J. 587, 603 (1993). To 

demonstrate a discriminatory hostile environment caused by sexual harassment, 

a plaintiff must show 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." Id.

at 603-04. 

Applying these standards to the facts available to the judge at the time the 

DOC sought summary judgment, we discern no basis to disturb the judge's 

denial of that motion. 

In evaluating the DOC's motion, the judge considered the evidence of 

alleged gender discrimination presented in the motion record, including 

depositions and certifications, which discussed: the ongoing rumor about 

plaintiff's relationship with S.D.; Danielson's comment that he would "burn her";

Rogoshewski's persistent spreading of this rumor; Houseworth's hostility and 

lewd comment toward plaintiff; and Campos's failure to act in response to 

plaintiff's complaints. Giving plaintiff all the legitimate inferences from this 

evidence, we cannot agree with the DOC's assertion that the evidence was "so 
15 A-3963-17T1

one-sided" that plaintiff should have been barred from presenting her hostile 

work environment claim to the jury.

In so ruling, we reject the DOC's contention that there was insufficient 

evidence in the motion record to enable a jury to conclude that the harassment 

plaintiff identified would not have occurred but for her gender under the first 

prong of the Lehmann test. The requirement that a plaintiff demonstrate that the 

harassment would not have occurred but for her gender is the "defining element" 

of a hostile work environment claim. Herman v. Coastal Corp., 348 N.J. Super. 

1, 20 (App. Div. 2002). "Common 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. Thus, under the first prong of 

the test, a plaintiff raising a claim of hostile work environment must show that 

"it is more likely than not" that the complained-of conduct occurred because of 

his or her protected status. Id. at 605. 

Contrary to the DOC's argument on this point, rumors of sexual 

relationships may satisfy the first prong of the test set forth in Lehmann. For 

example, in Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 261-63 (App. 

Div. 1996), an employee of the defendant frequently told various colleagues that 

the female plaintiff was having affairs with high-ranking employees, 
16 A-3963-17T1

specifically that she was "doing" medical residents and "sleeping with 

someone." The employee made other statements, including that the plaintiff was 

"a woman and a pain in my ass" and "being emotional because of PMS." Ibid. 

The court found that this employee's comments, including those about the affair, 

were facially sex-related and satisfied the "but-for" portion of the test. Id. at 

270. 

In addition, courts have held that rumors of sexual affairs with superiors 

in the workplace can constitute sex-based harassment of a woman, even though 

the participants in the alleged affair are, as here, both male and female. For 

example, in Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1994), a hostile work 

environment case involving a false rumor that a female employee was having an 

affair with her male supervisor, the court reversed a trial court's grant of 

summary judgment and held that 

. . . the crux of the rumors and their impact upon Spain 

is that Spain, a female, subordinate employee, had a 

sexual relationship with her male superior. 

Unfortunately, traditional negative stereotypes 

regarding the relationship between the advancement of 

women in the workplace and their sexual behavior 

stubbornly persist in our society. Because we are 

cognizant that these stereotypes may cause superiors 

and co-workers to treat women in the workplace 

differently from men, we find that a reasonable jury 

could conclude that Spain suffered the effects she 

alleges because she was a woman.
17 A-3963-17T1

[Id. at 448.]

The Spain court further held that such a rumor would not have the same 

impact on the male supervisor: 

. . . while it is true that the rumors also implicated [the 

male supervisor], the rumors did not suggest that his 

involvement in the alleged relationship had brought 

him additional power in the workplace over his fellow 

employees, and the employees had no reason for 

resenting him in the way they did Spain. Accordingly, 

he did not have to endure a hostile working 

environment brought about due to his sex.

[Ibid.]

Here, the record contained sufficient evidence to show that the harassing 

conduct exhibited by plaintiff's coworkers would not have occurred but for her 

gender. As the judge found, a female officer would endure unique implications 

because of the rumored affair which a male counterpart would not. The record 

supported the judge's observations that such rumors might suggest that she 

received the desirable Central Control assignment because of the relationship, 

and that such a determination should be made by the jury. For example, 

Danielson's comment that he did not care "who [plaintiff] fucked to get this job" 

indicates that the rumor was both a commentary on plaintiff's morals and 

suggested that she did not earn her desirable assignment. Therefore, the DOC's 

contention must be rejected.
18 A-3963-17T1

 The DOC next argues that plaintiff presented insufficient evidence under 

the second prong of the Lehmann test that the alleged harassment was severe or 

pervasive enough to make a reasonable woman believe that the conditions of her 

employment were altered and the working environment was hostile or abusive. 

This argument also lacks merit.

As we recently stated in Dickson v. Community Bus Lines, Inc.:

"Severity and workplace hostility are measured by 

surrounding circumstances." Taylor [v. Metzger], 152 

N.J. [490, 506 (1998)]. In assessing hostile work 

environment claims, "all the circumstances" must be 

looked at "including the frequency of the 

discriminatory conduct; its severity; whether it is 

physically threatening or humiliating, or a mere 

offensive utterance; and whether it unreasonably 

interferes with an employee's work performance." 

Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 

(2003) (quoting Shepherd v. Hunterdon Developmental 

Ctr., 174 N.J. 1, 19-20 (2002)).

[458 N.J. Super. 522, 534 (App. Div. 2019).]

In denying the DOC's motion for summary judgment, the judge found that 

the rumored affair between plaintiff and S.D. was "of a sufficient nature and 

really in terms of it's being perpetuated, is, -- it's almost a continuing violation, 

that it's sufficient for a rational fact finder to determine whether or not a sexually 

hostile work environment was created." Further, the rumored affair "made the 
19 A-3963-17T1

rounds" over several months and further circulated within plaintiff's work site, 

as well as to other facilities operated by the DOC. 

The judge appropriately cited Taylor v. Metzger, 152 N.J. 490 (1998), to 

emphasize that even one single incident could be actionable, and stated that at 

least one superior lieutenant was involved in perpetuating the rumor. The judge 

concluded that because the rumor was widely disseminated in the prison, a 

rational fact finder could determine it was severe or pervasive enough to make 

a reasonable woman believe that the conditions of her employment were altered 

and the working environment was hostile or abusive. Therefore, the judge 

properly denied the DOC's summary judgment motion.

The DOC next argues that even if the elements of gender-based hostile 

work environment existed, it satisfied the elements of the Faragher and Ellerth

affirmative defense, as made applicable in New Jersey under Aguas v. State of 

New Jersey, 220 N.J. 494 (2015). We disagree.

Employers have a duty to take effective measures to stop co-employee 

harassment when the employer knows or has reason to know that such 

harassment is taking place. Blakey v. Continental Airlines, Inc., 164 N.J. 38, 62 

(2000). In Aguas, the Supreme Court addressed whether an employer can be 

liable for an alleged hostile work environment where the employer did not 
20 A-3963-17T1

effectuate an adverse employment action against the plaintiff. 200 N.J. at 494. 

The court held the affirmative defense established in Faragher, 524 U.S. at 775 

and Ellerth, 524 U.S. at 742, to be applicable to cases in New Jersey. Aguas, 

200 N.J. at 523-24. Under Faragher and Ellerth, an employer is entitled to 

summary judgment if it (1) "exercised reasonable care to prevent and correct 

promptly any sexually harassing behavior" and (2) "the plaintiff employee 

unreasonably failed to take advantage of any preventative or corrective 

opportunities provided by the employer or to avoid harm otherwise." Aguas, 

220 N.J. at 524 (citing Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765). 

This affirmative defense "provides no benefit to . . . employers who fail 

to implement effective anti-harassment policies, and employers whose policies 

exist in name only." Aguas, 220 N.J. at 522-23. An employer that implements 

an ineffective anti-harassment policy, or fails to enforce its policy, may not 

assert the affirmative defense. Id. at 523.

Here, the DOC did not demonstrate that it was entitled to rely upon this 

affirmative defense as a means of defeating plaintiff's opposition to summary 

judgment. Under the first prong of the Faragher and Ellerth test, the motion 

record plainly demonstrated that the DOC failed to use reasonable care to 

prevent or correct the alleged harassing behavior. Despite the policy's 
21 A-3963-17T1

requirements, and plaintiff's multiple complaints to her supervisors and to 

Campos, her allegations were not forwarded to the DOC's statewide EEO/AA 

officer, Lawrence, for further investigation. Campos merely directed plaintiff 

to try to ignore the rumors. Despite her complaints as early as March or April 

2014, the motion record reflected that the harassment of plaintiff by multiple 

superior officers continued until plaintiff's leave of absence began in January 

2015. Thus, the DOC's policy was utterly ineffective.

Under the second prong of the test, nothing in the motion record revealed 

that plaintiff unreasonably failed to take advantage of the opportunities provided 

by the DOC to correct the harassment. To the contrary, plaintiff complained of 

this conduct to various prison officials repeatedly as early as March or April 

2014. While she did not label this conduct gender discrimination, she 

nonetheless indicated that it pertained to her alleged romantic relationship with 

her superior, S.D., and the prison officials should have recognized that these 

complaints implicated possible gender discrimination. Therefore, the judge 

correctly rejected DOC's contention that it was entitled to assert the Faragher

and Ellerth defense.

III.
22 A-3963-17T1

For many of the same reasons discussed above, we also reject the DOC's 

assertion in Point II of its brief that the judge erred by denying its motions for a 

directed verdict, made both at the end of plaintiff's case and at the conclusion of 

the trial.

Under Rule 4:40-1, "[a] motion for judgment . . . may be made by a party 

. . . at the close of all the evidence offered by an opponent." The standard of 

review is the same as that for a motion for Rule 4:37-2(b), which permits a party 

to seek an involuntary dismissal after "the presentation of the evidence on all 

matters" at the trial. In deciding the motion, the court "must accept as true all 

evidence supporting the position of the party defending against the motion and 

must accord that party the benefit of all legitimate inferences which can be 

deduced [from the evidence]." Besler v. Bd. of Educ. of W. Windsor-Plainsboro

Reg'l Sch. Dist., 201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis 

v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). If reasonable minds could 

reach different conclusions, the motion must be denied. Rena, Inc. v. Brien, 310 

N.J. Super. 304, 311 (App. Div. 1998). If the evidence is so one-sided, however, 

that one party must prevail as a matter of law, then a directed verdict is 

appropriate. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003).
23 A-3963-17T1

Applying these standards, we detect no error in the denial of the DOC's 

motions for directed verdicts. As noted in our discussion of the summary 

judgment motion, there was ample evidence that plaintiff would not have been 

harassed but for her gender, and the constant harassment she suffered was 

clearly "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." Lehmann, 132 N.J. at 603-04. Therefore, the judge 

correctly denied the DOC's motions.

IV.

Finally, the DOC argues in Point III of its brief that the judge made several 

evidentiary errors that require reversal. This contention also lacks merit.

Our standard of review of a trial court's decisions on evidentiary questions 

is well settled. "When a trial court admits or excludes evidence, its 

determination is 'entitled to deference absent a showing of an abuse of 

discretion, i.e., [that] there has been a clear error of judgment.'" Griffin v. City 

of E. Orange, 225 N.J. 400, 413 (2016) (alteration in original) (quoting State v. 

Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an evidentiary ruling 

only if it 'was so wide [of] the mark that a manifest denial of justice resulted.'" 

Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Applying 
24 A-3963-17T1

this standard, none of the allegations raised by the DOC on this point require 

our intervention. 

The DOC first argues that the judge erred by barring any references by the 

parties to plaintiff's assertion in her complaint that she was the victim of 

retaliation due to her involvement in the Sanderson investigation. The DOC 

asserts that this ruling prevented it from arguing to the jury that the harassment 

plaintiff suffered was the result of retaliation for reporting Miller's misconduct 

rather than because of her gender.

However, plaintiff voluntarily dismissed the retaliation count of her 

complaint prior to trial, and the DOC filed a successful in limine motion to 

exclude evidence of certain dismissed retaliatory acts because admitting them 

would be confusing to the jury and unduly prejudicial. Under these 

circumstances, the DOC's change of heart at trial and its attempts thereafter to 

introduce the retaliation claims were clearly barred by the judicial estoppel 

doctrine, which operates to bar a party from asserting a position contrary to and 

inconsistent with one previously asserted. McCurrie v. Town of Kearny, 174 

N.J. 523, 533-34 (2002).

The DOC next argues that the judge erred by excluding evidence of 

plaintiff's subsequent complaints against other employees in Schiavone II, 
25 A-3963-17T1

which prevented the defense from cross-examining plaintiff regarding her 

assertion that making a complaint about the gender-based harassment in this 

matter was futile. However, the Schiavone II action was entirely separate from 

the case at hand, and plaintiff stipulated to limit her damages here to the period 

before the claims in her second matter arose. Thus, the later allegations were 

simply not relevant in this matter.

The DOC also claims that the judge should have barred Foy from 

testifying because her testimony was hearsay, and was also inadmissible under 

N.J.R.E. 404(b) because it concerned Campos's "prior bad acts." These 

arguments lack merit. 

Contrary to the DOC's contention, Foy's testimony about the rumors she 

heard being spread about plaintiff was not hearsay. This is so because it was 

not offered to prove the truth of the matter asserted, namely, that plaintiff and 

S.D. were having an affair. Instead, the testimony was presented to establish 

that the rumor, whether true or not, was circulating and openly discussed at 

NJSP.

The DOC also objected to Foy's testimony by claiming that any attempt 

by plaintiff to portray the futility of complaining to Campos was an attempt to 
26 A-3963-17T1

demonstrate his "prior bad acts" in violation of N.J.R.E. 404(b). However, the 

DOC has misinterpreted Foy's testimony on this point. 

Foy testified that after she informally complained to Campos in 2015 or 

2016 about gender-based harassment, Campos gave her a packet of papers to fill 

out in order to enter a formal complaint. Foy stated she declined to do so 

because it was easier to "just deal with it" on her own. This testimony clearly 

did not violate N.J.R.E. 404(b) because Foy's personal decision to forego filing 

a written complaint simply does not demonstrate any "bad act" on Campos's 

part.5

Affirmed.

5

 As for the balance of any of the DOC's arguments not expressly mentioned 

above, they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E).