Jacobs Law Offices, LLC

In Cintron v. The State of New Jersey, et al. plaintiff Laura Cintron tried to set aside a settlement agreement she had already signed in the presence of counsel and her husband arguing that she was under duress.

After she refused to sign releases and go forward with the settlement, counsel for the State of New Jersey moved to enforce the settlement.

The facts are interesting and illustrative:

On May 17, 2011, the parties held a settlement conference in which plaintiff was represented by counsel as well as her husband being in attendance. Defendant Ancora Psychiatric Hospital was represented by defense counsel and a client representative as well.

At that time the parties reached a settlement and a settlement agreement was handwritten and signed by the plaintiff, all counsel, and Ms. Jones.

The agreement provided, among other things, that Laura Cintron would receive $25,000 as well as other accommodations at work including moving her mail receptacle and receiving 25 days of SLI (Sick Leave Injury) payments. The district court noted that in addition to addressing monetary payment, defendants also agreed to other concessions accommodating plaintiff’s concerns about ongoing harassment and her inability to be promoted.

Apparently, after signing the agreement plaintiff had second thoughts. The following day she faxed a letter to all counsel and the court stating that she would not proceed with the settlement. The court noted that as of the date of the order she still had not signed the agreement.

Plaintiff alleged that the agreement should not be enforced due to “duress.” On the record plaintiff stated that she felt intimidated and that they might “try to make me quit my job.” She described her workplace as “very dysfunctional.”

She later commented that she was very overwhelmed by the whole mediation process and intimidated by the fact that all the attorneys were present and her “livelihood” was involved. She said her attorney seemed to be focused on the settlement which “made me sign the document under duress.” She basically said she did not have the “courage to say no.”

On the contrary, plaintiff’s counsel confirmed that when the settlement was reached plaintiff did not express any reservations nor did she express reservations after the document was explained and addressed her questions. In addition, her husband did not express any reservations about the settlement. In response, plaintiff said everybody was looking at the door and focused on the end of the day.

The court noted that settlements require a “meeting of the minds.” However, they can be set aside if there is genuine duress but this was not such a case. This was not a case where there was a misunderstanding regarding the settlement terms. Rather, the court noted duress would require “coercion, deception, fraud, undue pressure, or unseemly conduct.”

The court rejected plaintiff’s turnabout and found that at all relevant times she was represented by counsel; her husband was also present to give her comfort; and at no time before or immediately after she signed the agreement did she express any reservation. In addition, plaintiff’s counsel confirmed that the settlement agreement was explained to her and all of her questions were answered.

In conclusion, the court noted that “[q]uite simply there is no evidence that when plaintiff signed the agreement she was under any duress, coercion, deception, fraud, undue pressure or unseemly conduct.” There were not facts to show that plaintiff’s free will was subverted. The court concluded that plaintiff made the voluntary decision to settle after she was fully aware of the facts. Based upon plaintiff’s failure to show duress on the record, the court granted the motion to enforce the settlement.

Practice Tips: What is the lesson learned? Buyer’s remorse only applies if the facts justify it. If a settlement agreement is reached and signed off by the parties at the time of the settlement, a subsequent change of mind, barring some dramatic facts, will be insufficient to set aside the agreement. Careful explanations of the terms on both sides should be made at the time of the agreement to avoid later problems. Written agreements signed by all parties are critical.

In Wallace and Stewart v. Mercer County Youth Detention Center, the Appellate Division gave a thorough review and analysis of employer obligations regarding investigation of sexual harassment and sexual harassment training and policies. The decision is instructive and helpful.

Summary judgment had been granted to the employer regarding harassment complaints by Tina Stewart and Moneck Wallace alleging persistent sexual harassment by a fellow employee under the New Jersey Law Against Discrimination (NJLAD). They complained that a co-worker, Jerel Livingston, committed acts of sexual harassment that although promptly reported were not properly addressed by the Detention Center. They also argued that the supervisors and employees at the Center were uninformed about how to find the County’s sexual harassment policy and that inadequate sexual harassment training coupled with unclear monitoring and investigative procedures rendered it ineffective.

The facts on the record established sexual harassment by Livingston including repeated contact, comments, and conduct regarding plaintiffs. There were comments about Stewart’s buttocks, kisses, and efforts at touching. Both complainants filed an incident report with their supervisor, Gloria Hodges, who then passed the report to the Youth Detention Center assistant superintendent. Hodges admitted she gave copies of the report to Livingston so he could respond. Apparently, his conduct continued. The incident reports were sent to the County personnel department on April 24, 2006. However, the administration did not make contact until May 19, 2006 and Aixa Aklan was assigned to investigate. Ms. Aklan’s only sexual harassment training consisted of a state-sponsored class that she had attended in 1999 and a class on human resources law she took while in college.

After interviewing the plaintiffs, Ms. Aklan prepared an investigation report that concluded there was not enough information to sustain the charges. She gave five reasons on each plaintiff as follows:

With regard to Stewart:

1. Did not report incident immediately and only when asked by the Supervisor on 4/13/06.

2. Exchange of cell phone was omitted in Stewart interview.

3. Information regarding friendship with Wallace was withheld.

4. Expressed that she did not want him terminated.

5. No witnesses were present at time of alleged wrongdoing.

With regard to Wallace:

1. Did not file a report immediately after the fact.

2. Had discussion with his ex-wife regarding previous incidents involving Livingston.

3. Gave account of other employee’s involvement, when only two came forth.

4. Friendship with Stewart.

5. No witnesses were present at the time of the alleged incident.

The trial judge found a prima facie case of sexual harassment was established but no liability since Livingston was not a supervisor.

The Appellate Division reversed on a variety of grounds. For example, a negligence standard should have been applied because the County did not “have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms.” Following the Supreme Court’s direction in Lehmann v. Toys ‘R’ Us, the Appellate Division quoted as follows:

Employers that effectively and sincerely put five elements into place are successful at surfacing sexual harassment complaints early, before they escalate. The five elements are: policies, complaint structures, and that includes both formal and informal structures; training, which has to be mandatory for supervisors and managers and needs to offered for all members of the organization; some effective sensing or monitoring mechanisms, to find out if the policies and complaint structures are trusted; and then, finally, an unequivocal commitment from the top that is not just in words but backed up by consistent practice.

Similarly, given the foreseeability that sexual harassment may occur, the absence of effective preventative mechanisms will present strong evidence of an employer’s negligence.

The Appellate court found it to be error for the trial judge to grant summary judgment merely based upon Livingston’s status as a co-worker noting that the court should have focused on the “preventative mechanisms” put in place by the employer rather than status alone. The Court said that Aklan found the plaintiffs’ claims of sexual harassment unsubstantiated even though the claims fit neatly into the policy’s definition of sexual harassment as follows:

Unwanted physical contact such as intentional touching, grabbing, pinching, brushing against another’s body or impeding or blocking movement.

Verbal or written sexually suggestive or obscene comments, jokes or propositions including letters, notes, e-mail, invitations, gestures or inappropriate comments about a person’s clothing.

Visual contact, such as leering or staring at another’s body, gesturing, displaying sexually suggestive objects, cartoons, posters, magazines or pictures of scantily-clad individuals.

Explicit or implicit suggestions of sex by a supervisor or manager in return for a favorable employment action such as hiring, compensation, promotion, or retention.

Suggesting or implying that failure to accept or request for a date or sex would result in an adverse employment consequence with respect to any employment practice such as performance evaluations or promotional opportunity.

Continuing to engage in certain behaviors of a sexual nature after an objection has been raised by the target of such inappropriate behavior.

The Court also noted, in rejecting Aklan’s analysis, that the fact that harassment occurred when no one else was present is not unusual. The Appellate Division said that given Aklan’s “minimal training in the area of sexual harassment” her conclusions were “not unexpected.”

The Supreme Court has held that the following components of an effective anti-harassment policy are as follows: “a formal prohibition of harassment; formal and informal complaint structures; anti-harassment training; sensing and monitoring mechanisms for assessing the policies and complaint procedures; and unequivocal commitment to intolerance of harassment demonstrated by consistent practice.”

The Appellate court was concerned about the time delay after submission of reports and the investigation which appeared to be contrary to “immediate.” In general, the appellate court found that the paucity of effort and resources placed by the County into training, as well as the necessary updating of information and frequency, rendered the issue of “effective” to be a jury question.

In other words, the adequacy of sexual harassment training provided to supervisors and employees, as well as the effectiveness of the policy and associated investigatory procedures, is a fact question to be considered. The Court also noted the lack of any discernable criteria to be used when evaluating whether or not a sexual harassment claim is substantiated as well as monitoring procedures used to evaluate the sexual harassment policy’s effectiveness.

Tips: The message from Stewart is clear: employers are again placed on notice that monitoring and implementation of sexual harassment policies is critical; effective training for employees and supervisors is necessary; and regular, thorough and comprehensive investigations must be made in a timely manner each time there is a complaint of sexual harassment. Failure to do so will subject the entire process to review and likely reversal.