                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-3252-12T1

BRIAN DUNKLEY,
                                           APPROVED FOR PUBLICATION
     Plaintiff-Appellant,                        September 16, 2014

v.                                               APPELLATE DIVISION

S. CORALUZZO PETROLEUM
TRANSPORTERS,

     Defendant-Respondent.
_______________________________

           Argued June 4, 2014 - Decided September 16, 2014

           Before Judges Lihotz, Maven and Hoffman.

           On appeal from the Superior Court of New
           Jersey,   Law  Division, Atlantic County,
           Docket No. L-6863-10.

           Richard E. Yaskin argued the cause for
           appellant (Mr. Yaskin and William Riback,
           attorneys; Mr. Riback and Alix Schwartz, on
           the briefs).

           Erin   L.  Peters   argued   the  cause for
           respondent (Golden, Rothschild, Spagnola,
           Lundell, Boylan & Garubo, P.C., attorneys;
           Daniel B. McMeen, of counsel and on the
           brief; Ms. Peters, on the brief).

     The opinion of the court was delivered by

LIHOTZ, J.A.D.

     Plaintiff Brian Dunkley appeals from an October 12, 2012

order   granting    defendant   S.   Coraluzzo    Petroleum    Transporters
summary judgment and dismissing plaintiff's complaint claiming

violations       of   New    Jersey's     Law   Against    Discrimination        (LAD),

N.J.S.A. 10:5-1 to -49.              Plaintiff's complaint alleged hostile

work    environment,         constructive       discharge,      and     violation      of

public policy.          Plaintiff also appeals from an order denying his

motion for reconsideration of the summary judgment dismissal and

a May 23, 2012 order entering a protective order related to a

prior sexual harassment claim filed against defendant.

       On   appeal,      plaintiff        challenges      the   entry     of    summary

judgment, asserting the judge based his conclusion on erroneous

factual     findings        and   improperly    limited     necessary      discovery.

Viewing the facts in the summary judgment record, in a light

most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of

Am.,    142      N.J.    520,      540    (1995),    we     conclude      plaintiff's

complaints of avoidance by fellow employees after he reported

acts of racial discrimination by a co-worker are insufficient to

support     an    LAD     claim     for    retaliatory      discharge      or    impose

vicarious liability on the employer.                Accordingly, we affirm.

       Plaintiff commenced his employment with defendant as an oil

delivery driver on May 4, 2010.                  Defendant provided plaintiff

with an employee handbook, which contained the rules governing

his employment.           Plaintiff also attended two days of in-class

safety training and two weeks of "on-road" on-the-job training.




                                            2                                   A-3252-12T1
       Richard Harrington, another truck driver, was assigned as

plaintiff's       on-road   trainer.           During     the       training   period,

plaintiff accompanied Harrington as he "dr[ove] to a refinery,

g[ot] oil and then [went] on a set route and deliver[ed] the

oil[.]"      Harrington     also    instructed       plaintiff        regarding    "the

actual    job,"    which    included      "loading      and     offloading     oil    or

fuel[.]"

       In the course of the two-week training period, Harrington

made numerous race-related comments directed toward plaintiff,

an African-American, or in his presence.                   On plaintiff's first

day,     Harrington    stated      "I'm    from    Ohio       and    you   know     what

originated there don't you?"              When plaintiff replied that he did

not, Harrington stated: "The Klan.                The Klan originated there."

Harrington repeated a reference to the Klan on another occasion;

however, he never clarified whether he had an affiliation with

the group.

       Harrington also recounted anecdotes insinuating he was tied

to a motorcycle gang.           For example, Harrington told plaintiff

his father was a member of a motorcycle gang and recounted an

incident where a

            local guy came over to his dad's property
            and he engaged in an argument with the guy,
            and the guy said he was going to do
            something to his father as far as bodily
            harm. And his father made one phone call to
            the leader of this motorcycle gang and he



                                           3                                   A-3252-12T1
            came over, got in a tussle with the guy, and
            the guy was in fear of his life and he had
            left the premises.   And he told [plaintiff]
            if [h]e or anybody ever had a problem with
            his family, that they would be taken care
            of.

Plaintiff    believed       Harrington       was    relating     these      accounts

because he "was trying to, for some reason[,] put fear into me."

       Plaintiff also reported statements made by Harrington that

he believed were racially offensive, such as:                    "Allen Iverson

and his friends are black thugs from a bad neighborhood," which

plaintiff    felt     stereotyped      African-Americans.              On    another

occasion,   Harrington      told   plaintiff       his   truck   was     vandalized

when   he   stopped    at    a   red   light       and   "[plaintiff's]       little

brothers, . . . came out and they paintballed [my] truck[.]"

Harrington also conveyed derogatory comments complaining about

African-American women he saw in a grocery store, stating

            how he's tired of the girls with the food
            stamps in the line, and . . . he started
            mimicking them[] how they talk. And then he
            start[ed] saying, "I got my food stamps and
            I don't care who's waiting in line," this
            and that, because they were holding up the
            line of some sort.     And then he said to
            [plaintiff], "You look in their basket, they
            are eating T-bone steaks and stuff better
            than I can eat because it's all given to
            them with the state, food stamps."

       When their truck needed repair, Harrington and plaintiff

went to an African-American mechanic.                Harrington addressed the

mechanic as he prepared to work on the truck, stating: "I want



                                         4                                  A-3252-12T1
to — it looks like you're — I want to say the word, but I can't.

. . . I can't say the word. I'll get in trouble. . . ."                      The

mechanic responded, "I know what you are trying to say.                   You're

trying to say it looks like I'm nigger rigging."                    Harrington

agreed that was "what I am trying to say, but I can't say it

because I'll get in trouble."

    When plaintiff did not report for work, Elwood Sickler,

defendant's     safety   coordinator,      called   to   inquire    about    his

absence.   Plaintiff explained "there w[ere] a lot of reasons" he

decided not to come into work.          The next day, plaintiff met with

Sickler, Thomas Sprague, defendant's safety director, and Steve

Coen, defendant's regional safety manager.               Plaintiff recounted

the incidents with Harrington, using a list he had prepared the

prior evening, explaining these were "things that were bothering

me, why I didn't want to work there[.]"

    Following     this    meeting,     plaintiff    received   a   phone    call

from Sickler informing him a new trainer, Greg Castellini, was

assigned   as    his     instructor.       Plaintiff     returned    to     work

approximately one day later, and never again saw or spoke to

Harrington.     Following his reassignment to work with Castellini,

plaintiff suffered no treatment similar to that experienced with

Harrington.




                                       5                              A-3252-12T1
     However,         plaintiff         insisted      he      endured         negative

consequences    after       reporting     Harrington's       conduct,       and     these

consequences caused his constructive discharge.                          He noted his

report was not kept confidential and he felt ostracized by co-

workers, who "would shy away" from him.                "The guys that were in

the yard that [he] used to know, they wouldn't even say a word

to   [him]    after       that.     And    everybody        knew    [he]    was        with

[Harrington],       and    then   all     of   a   sudden    [there       was]     a    big

change."      Further,       when    plaintiff      attempted       to     speak       with

Sickler, he was "advised that because [plaintiff] had brought a

complaint [about] the hostile work environment, [he] was being

outcasted [sic]."

     Plaintiff also told Castellini he did not receive proper

training     from     Harrington;       Castellini     agreed       Harrington          had

instructed him incorrectly on a number of protocols.                        Plaintiff

noted Harrington had not taught him how to operate the truck's

computer, failed to instruct him not to pressurize the truck

after unloading fuel and did not advise him not to take vendors'

keys.

     Castellini       reported      Harrington's      lapses       to   "management."

On the day he learned Castellini had done so, plaintiff was

involved in a gasoline spill.

             [E]arlier in the day, [plaintiff] had found
             out that . . . [Castellini] had told [him] a



                                           6                                     A-3252-12T1
            couple of things that [Harrington] was doing
            wrong that . . . he was trying to correct
            . . . ., and then [plaintiff] . . . told
            [Castellini], . . . "I really didn't want
            you to tell" — "I really didn't want you to
            go tell [Sickler] because, you know, I
            didn't" — "everything is all screwed up here
            as   it   is."      [Plaintiff   was]  like,
            ["Castellini], I'm already in a situation
            where I don't feel like I am going to get
            any help from these guys. I feel like I'm a
            troublemaker, and I just feel like, you
            know, there's enough stirred up right now.
            If I tell you what he taught me and how you
            are teaching me the right way, I mean, I
            just didn't know you were going to go tell
            him.["]    [Castellini] said "Yeah, I told
            him."   So [plaintiff] said, "That's fine,"
            but [he] was just upset about it.

Plaintiff maintained the spill occurred because he

            wasn't paying attention to something that
            was very stupid. So [he] said if [he] could
            do that, [he was] going to harm [him]self,
            blow something up or have a bad spill, and
            [he] just was so frustrated with [him]self
            and mad at [him]self about the spill, but it
            was   because   [he]   wasn't  concentrating
            because all this stuff was in [his] mind and
            bothering [him].

    Plaintiff insisted he was uncomfortable at work and "felt

like [his] life was threatened" because he was not sure whether

Harrington was affiliated with a motorcycle gang or "the Klan,"

or whether these groups "had chapters around Vineland[,]" where

defendant   was   located,   as   he   knew   "Vineland   had   had   a   Klan

meeting [at a nearby park] when [he] was younger . . . ."                 As a

result, plaintiff remained concerned for his and his family's




                                       7                              A-3252-12T1
safety.        The immense daily stress made plaintiff "hate being

there [at work] at that time."                   Following the spill, plaintiff

resigned.

       Plaintiff filed a complaint against defendant and unnamed

John     Does    1-10,     claiming    violations         of      the   LAD,       alleging

defendant       allowed      conduct        amounting        to     a     hostile          work

environment (counts one and two), which caused his constructive

discharge       (count    three),     and     violated       public       policy         (count

four).      Plaintiff      amended     his       complaint     to   add      a    claim      for

violating       the   Conscientious       Employee        Protection         Act       (CEPA),

N.J.S.A. 34:19-1 to -8 (count five).

       Approximately one month before trial, defendant moved for

summary    judgment.        Plaintiff        filed    a   cross-motion            to    strike

defendant's motion for summary judgment.                     After considering oral

argument and the record evidence, the judge granted defendant's

motion,     denied       plaintiff's      cross-motion,           and   dismissed            the

complaint.            Plaintiff's      request        for      reconsideration               was

similarly denied.         This appeal ensued.

       Prior    to    reviewing     the     issues    presented         on       appeal,      we

recite the principles guiding our review.                           When reviewing a

grant of summary judgment, we employ the same standards used by

the motion judge, found in Rule 4:46.                     Gormley v. Wood-El, 218

N.J. 72, 86 (2014).           We determine whether the moving party has




                                             8                                         A-3252-12T1
demonstrated      there    were    no   genuine    disputes        as   to   material

facts, and then we decide whether the motion judge's application

of the law was correct.           Atl. Mut. Ins. Co. v. Hillside Bottling

Co.,   387   N.J.    Super.   224,      230-31    (App.    Div.     2006),     certif.

denied, 189 N.J. 104 (2006).            Specifically, we "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, supra, 142 N.J.

at 540.      "[W]hen the evidence is so one-sided that one party

must prevail as a matter of law, the trial court should not

hesitate     to   grant    summary      judgment."         Ibid.    (citation       and

internal quotation marks omitted).

       However,     we   accord    no   deference    to     the    motion     judge's

conclusions on issues of law, Estate of Hanges v. Metro. Prop. &

Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which

we review de novo.         W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012)

(stating if no genuine factual dispute exists, we must decide

whether the trial court's ruling on the law, to which we owe no

deference, was correct).

       On    appeal,      plaintiff      maintains        the     judge      correctly

determined he presented a prima facie case of harassment, but




                                          9                                   A-3252-12T1
erred in dismissing the action, after finding Harrington was not

plaintiff's        supervisor         and     concluding      defendant     was        not

vicariously         liable      for        Harrington's       actionable     conduct.

Plaintiff argues defendant failed to take proper steps to curb

discriminatory           conduct      because       defendant's       anti-harassment

policy lacked structure and monitoring mechanisms; defendant did

not   train      its    supervisors        and    employees   regarding    the      anti-

harassment        and     anti-retaliation           policies;    and     plaintiff's

complaints were not effectively addressed as defendant's upper

management did not show "an unequivocal commitment" to assure

"harassment would not be tolerated."

      The LAD is remedial legislation designed "to root out the

cancer      of     discrimination[.]"              Cicchetti     v.     Morris      Cnty.

Sherriff's Office, 194 N.J. 563, 588 (2008) (citing Fuchilla v.

Layman, 109 N.J. 319, 334, cert. denied, 488 U.S. 826, 109 S.

Ct.   75,    102    L.    Ed.   2d    51    (1988)).       The   statute    prohibits

unlawful employment practices and discrimination in the form of

harassment, "based on race, religion, sex, or other protected

status, that creates a hostile work environment."                          Cutler v.

Dorn, 196 N.J. 419, 430 (2008) (citing Lehmann v. Toys 'R' Us,

Inc.,    132     N.J.    587,   601    (1993)).        See    N.J.S.A.    10:5-12(a).

Further, it prohibits reprisals against an employee who asserts

rights granted by the LAD.             N.J.S.A. 10:5-12(d).




                                             10                                  A-3252-12T1
           To establish a cause of action under the LAD
           based   on    a   hostile    work    environment,
           plaintiffs must satisfy each part of a four-
           part test.      Specifically, they must show
           that the complained-of conduct (1) would not
           have   occurred    but    for    the   employee's
           protected status, and was (2) severe or
           pervasive enough to make a (3) reasonable
           person believe that (4) the conditions of
           employment have been altered and that the
           working environment is hostile or abusive.
           Within   that    framework,    a   court   cannot
           determine what is "severe or pervasive"
           conduct    without    considering     whether   a
           reasonable person would believe that the
           conditions of employment have been altered
           and that the working environment is hostile.
           Thus, the second, third, and fourth prongs
           are, to some degree, interdependent.

           [Shepherd v. Hunterdon Developmental Ctr.,
           174 N.J. 1, 24 (2002) (citations omitted).]

In   the   context     of    race     discrimination,        the      first   element

requires a plaintiff to show harassment occurred because of his

or her race.         Lehmann, supra, 132 N.J. at 603.                    The second

element    assesses      "'[t]he      required       showing     of    severity      or

seriousness of the harassing conduct varies inversely with the

pervasiveness     or   frequency       of     the    conduct.'"         Id.   at    607

(quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)).

Usually,   repeated      incidents      are    required.         However,     even     a

single severe incident may create a hostile work environment in

certain circumstances.         Taylor v. Metzger, 152 N.J. 490, 500-02

(1998).     See   also      Cutler,    supra,       196   N.J.   at   430,    432   n.7




                                        11                                    A-3252-12T1
(applying same principles to a hostile work environment claim

involving religious affiliation).

          When considering a claim of hostile work environment under

the LAD, the test is fact sensitive and the court must review

the   totality        of    circumstances         presented.           El-Sioufi      v.    St.

Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005).

The       inquiry    is    whether       a    reasonable        person   in    plaintiff's

protected         class     would    consider         the      alleged    discriminatory

conduct "'to be sufficiently severe or pervasive to alter the

conditions of employment and create an intimidating, hostile or

offensive      working      environment.'"              Ibid.    (quoting      Heitzman      v.

Monmouth      Cnty.,       321    N.J.       Super.   133,     147   (App.     Div.    1999),

overruled on other grounds by Cutler, supra, 196 N.J. at 440).

The court weighs the "severity and pervasiveness by considering

the conduct itself rather than the effect of the conduct on any

particular plaintiff."               Id. at 178-79.              The factors evaluated

include      "'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.'"       Shepherd,

supra, 174 N.J. at 19-20 (quoting Nat'l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d

106, 124 (2002)).




                                                12                                    A-3252-12T1
       To prove "a prima facie case of retaliation, plaintiff must

show that 1) [he or] she was engaged in a protected activity

known to defendant; 2) [he or] she was thereafter subjected to

an adverse employment decision by the defendant; and 3) there

was a causal link between the two."                    Woods-Pirozzi v. Nabisco

Foods,    290    N.J.      Super.   252,     274   (App.     Div.   l996)    (citation

omitted).        See also Craig v. Suburban Cablevision, Inc., 140

N.J. 623, 629-30 (1995).               Once a plaintiff establishes a prima

facie case of retaliation, the burden of production shifts to

the    defendant      to    articulate     a     "legitimate[,]     non-retaliatory

reason"    for    the      decision.       Jamison    v.   Rockaway       Twp.    Bd.   of

Educ., 242 N.J. Super. 436, 445 (App. Div. 1990).                         If defendant

satisfies this burden, the plaintiff must then demonstrate that

a     retaliatory       intent,     not      the    employer's      stated       reason,

motivated       the     employer's        action,     proving       the     employer's

articulated      reason      was    merely     a   pretext    for   discrimination.

Woods, supra, 290 N.J. Super. at 274; Jamison, supra, 242 N.J.

Super. at 445.

       "[A] person engages in a protected activity under the LAD

when that person opposes any practice rendered unlawful under

the LAD."        Young v. Hobart W. Grp., 385 N.J. Super. 448, 466

(App. Div. 2005).           See also Jamison, supra, 242 N.J. Super. at

445    ("Such    an     unlawful     employment      practice       occurs       when   an




                                            13                                   A-3252-12T1
employer, or an employee, for any reason, takes reprisal against

another employee because the latter has challenged any practices

or acts forbidden by the LAD.") (citing N.J.S.A. 10:5-12(d)).

As   a   starting    point,    protected    activity,    if    involving      a

complaint,   must    concern    discrimination.       Reyes     v.   McDonald

Pontiac-GMC Truck, Inc., 997 F. Supp. 614, 619 (D.N.J. l998)

(finding complaints stemming from "outbursts and name-calling"

not sexual in nature do not suffice).             "A general complaint of

unfair treatment" does not suffice.               Barber v. CSX Distrib.

Servs., 68 F.3d 694, 702 (3d Cir. l995) (finding a letter to the

employer expressing dissatisfaction over someone else receiving

a promotion is not protected activity because it did not allege

age discrimination).1

     In Lehmann, the Court held an "employer should be liable

for punitive damages [under the LAD] only in the event of actual

participation   by    upper    management    or   willful     indifference."

Lehmann, supra, 132 N.J. at 625.           This principle was reinforced


1
     This case construed the retaliation provision of the
federal Age Discrimination in Employment Act, 29 U.S.C.A. §
623(d); however, the wording is substantially the same as the
LAD provision under review. New Jersey courts generally look to
federal anti-discrimination jurisprudence in construing the LAD
because LAD "standards have been influenced markedly by the
experience   derived   from  litigation  under   federal  anti-
discrimination statutes."   Shaner v. Horizon Bancorp, 116 N.J.
433, 437 (l989). See also Carmona v. Resorts Int'l Hotel, Inc.,
189 N.J. 354, 370 (2007).



                                    14                               A-3252-12T1
in Taylor as "the Court noted that '[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.'"      Cavuoti      v.   N.J.

Transit Corp., 161 N.J. 107, 118 (1999) (quoting Taylor, supra,

152 N.J. at 503).

    Omissions may also suffice as "an employer that failed to

take effective remedial measures against a harassing employee

was, in essence, liable for its own conduct."              Payton v. N.J.

Turnpike Auth., 148 N.J. 524, 536 (1997) (citation omitted).

This results because "[w]hen an employer knows or should know of

the harassment and fails to take effective measures to stop it,

the employer has joined with the harasser in making the working

environment hostile."      Ibid. (citation omitted).

    Here, the motion judge agreed plaintiff presented a prima

facie case of hostile work environment, stating:

                 After viewing the evidence in a light
            most favorable to [p]laintiff, this [c]ourt
            is satisfied . . . given the severity and
            pervasiveness of Mr. Harrington's conduct,
            reasonable minds could differ as to whether
            [p]laintiff    suffered    a   hostile    work
            environment.      The    conduct   [p]laintiff
            complains of consisted of several racially
            discriminatory   remarks   regarding   African
            Americans over the course of two weeks.
            This was not an isolated instance but rather
            a series of conduct that persisted until
            [p]laintiff   complained    to   [d]efendant's
            managerial employees.



                                       15                             A-3252-12T1
Notwithstanding this showing, the judge concluded plaintiff had

not   sustained   his    burden     to    prove     defendant     was   vicariously

liable for Harrington's conduct because he could not demonstrate

defendant's supervisors knew about and ignored, participated in

or failed to take action to prevent such harassing conduct.                        See

Tyson v. CIGNA Corp., 918 F. Supp. 836, 840-41 (D.N.J. 1996),

aff'd, 149 F.3d 1165 (3d Cir. 1998); Shepherd, supra, 174 N.J.

at 26-27.

      Plaintiff disagrees.             First, he maintains Harrington was

his   supervisor,    making      defendant     vicariously        liable     for   his

discriminatory    conduct.          Second,    he    believes      proofs    evinced

defendant ignored or otherwise failed to address the existing

discrimination.      Plaintiff hinges support on the absence of a

formal    investigation        of   the     incidents      he     related,    noting

Sickler, Sprague and Coen did not report                     his allegations to

Human    Resources      or    senior     management,       such    as   defendant's

president,     owners    or    vice      president    of    operations.         Also,

plaintiff asserts Sickler and Sprague had no specific training

regarding how to stop discriminatory conduct, and no adverse

action was taken against Harrington.

      Whether Harrington could be deemed plaintiff's supervisor

during   the   two-week       training    period     is    debatable.        Although

Harrington had no power to fire or demote plaintiff and he could



                                          16                                 A-3252-12T1
not alter his position or compensation, he was charged with

plaintiff's on-road training, during which he directed plaintiff

and    identified     plaintiff's      job     responsibilities.           There    were

instances when comments by Harrington to Sickler caused Sickler

to speak to plaintiff.               If the determination of Harrington's

supervisory     status       was   the    only      test    to    impose    vicarious

liability     upon    defendant,       summary      judgment      would    have     been

prematurely     granted.        However,       Lehmann     and   its     progeny    make

clear vicarious liability is dependent upon additional facts.

       An   employer's      vicarious     liability        for   the   conduct     of   a

supervisor occurs "'if the employer negligently or recklessly

failed to have an explicit policy that bans . . . harassment and

that     provides      an     effective         procedure        for     the      prompt

investigation        and    remediation      for    such    claims.'"          Toto     v.

Princeton     Twp.,    404    N.J.    Super.       604,    616   (App.     Div.    2009)

(quoting Cicchetti, supra, 194 N.J. at 591).                     See also Lehmann,

supra, 132 N.J. at 621 (stating that to impute liability to a

defendant-employer for acts of its employees, "a plaintiff may

show that an employer was negligent by its failure to have in

place    well-publicized       and     enforced      anti-harassment        policies,

effective formal and informal complaint mechanism structures,

training, and/or monitoring mechanisms.").




                                          17                                   A-3252-12T1
    Here, defendant produced its employee handbook, enacted on

March 1, 2010, which contained a directed policy prohibiting

harassment    and   discrimination.           Defendant     demonstrated       it

provided   the   handbook   to   each    employee,        and   employees    are

directed to read the handbook "completely and become familiar

with all the policies and the information that is provided."

Relevant to this matter, the employee handbook provided:

           The [e]mployer will not tolerate any type of
           harassment of employees, applicants for
           employment, or customers.      Discriminatory
           conduct   or    conduct   characterized    as
           harassment as defined below is prohibited.

                The term harassment includes, but is
           not limited to, slurs, jokes, and other
           verbal or physical conduct relating to a
           person's gender (including pregnancy), race,
           color,   religion,   national   origin,  age,
           disability, military status, creed, ancestry
           or   any  other   protected   category  under
           federal,    state   or    local    law   that
           unreasonably interferes with a person's work
           performance or creates an intimidating,
           hostile work environment.

    The      handbook   described       the    complaint        procedure    and

investigation process as follows:

                Any   employee   who   has  a   concern
           regarding harassment or discrimination must
           report the matter to their manager. If that
           person is not available, or you believe it
           would be inappropriate to contact that
           person,   contact    the   Human   Resources
           Department.

                The [e]mployer will conduct a prompt
           investigation as confidential as possible



                                    18                                 A-3252-12T1
         under the circumstances.      Employees who
         raise concerns and make reports in good
         faith can do so without fear of reprisal; at
         the same time, employees have an obligation
         to   cooperate   with  the   [e]mployer   in
         enforcing this policy and investigating and
         remedying complaints.

              Any employee who becomes aware of
         possible   .  .   .  illegal   discrimination
         against others must promptly advise their
         manager or the Human Resources Department.

              Anyone found to have engaged in such
         wrongful   behavior  will  be   subject  to
         appropriate discipline, up to and including
         termination.

Also, there was an express anti-retaliation policy:

              Any employee who files a complaint of
         sexual harassment or other discrimination in
         good faith will not be adversely affected in
         terms and conditions of employment and will
         not be retaliated against or discharged
         because of the complaint.

              In addition, we will not tolerate
         retaliation against any employee who, in
         good faith, cooperates in the investigation
         of a complaint. Anyone who engaged in such
         retaliatory behavior will be subject to
         appropriate discipline, up to and including
         termination.

    "[T]he   existence    of   effective   preventative   mechanisms

provides some evidence of due care on the part of the employer."

Lehmann, supra, 132 N.J. at 621.      Moreover, "the absence of such

mechanisms" does not "automatically constitute[] negligence, nor

[does] the presence of such mechanisms demonstrate[] the absence

of negligence."   Ibid.



                                 19                         A-3252-12T1
                 Employers    that     effectively    and
            sincerely put five elements into place are
            successful at surfacing . . . 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 be 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.

            [Ibid. (citations omitted).]

    We conclude the trial judge properly analyzed the evidence,

which showed defendant adopted a formal anti-harassment and an

anti-discrimination policy and developed a complaint procedure

and investigation process.           Plaintiff, as well as all other

employees hired by defendant, received and acknowledged reading

the handbook.     Further, plaintiff admitted these policies were

discussed   during   his   initial    two-day   in-class   training.      No

evidence suggests plaintiff was unable to voice his complaints

or that they went unaddressed because of an ineffective policy.

Here, despite knowing the procedures, plaintiff simply failed to

follow them.

    Contrary    to   plaintiff's      assertion,   we   find   defendant's

policies were properly defined.           When management learned of the

problem, plaintiff's supervisors did not ignore his complaints




                                     20                           A-3252-12T1
or    overlook       Harrington's        reprehensible            behavior.         Rather,

Sickler's         proactive      conduct        discovered        the     problem.         He

immediately        arranged      a    private      meeting    between      plaintiff      and

other   supervisors         to       review   plaintiff's         experiences.            Upon

gathering the facts from plaintiff, the supervisors acted to

protect plaintiff from further discrimination.

      In hindsight, unquestionably, one could suggest improvement

in the depth of the process or the supervisors' training on

these issues.        Further, publicizing the Human Resources or other

officer     charged       with   enforcing         the    procedures      is    preferable.

However, we cannot conclude the methods used here fail to meet

established standards.                More important, plaintiff's own report

that after meeting with his supervisors, he did not experience

any further discriminatory harassment and suffered no change in

his position, duties or compensation, demonstrated the policy's

effectiveness.

      We    also    conclude         plaintiff's         perceived   ostracism       by   co-

workers fails to support his claim of hostile work environment.

See Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 382-

83 (Law Div. 2002) ("The fact that [the plaintiff's] co-workers

and   superiors       chose      to    limit       their     contact      with    [him]    to

business     only     and     otherwise       ignored       [him],      stared/glared      at

[him]      when    they     walked      by    [him],       and,    even    as     plaintiff




                                              21                                   A-3252-12T1
believed — talked       about    [him]       behind      closed      doors,"    fails    to

create a hostile work environment.), aff'd 362 N.J. Super. 245,

246-47 (App. Div.), certif. denied, 178 N.J. 32 (2003).                                 The

Supreme Court has explained, the LAD does not create a "sort of

civility code for the workplace[.]"                    Battaglia v. United Parcel

Serv., Inc., 214 N.J. 518, 549 (2013).                          Rather, it advances

"[f]reedom      from    discrimination."                Id.     at    546.       Employee

discourtesy and rudeness should not be confused with employee

harassment.      Further, an "unhappy" workplace does not equate to

a hostile work environment under the LAD.

      Following    our       review    of    the       record,       we   determine     the

evidence   shows       the    employer      followed      the     steps      outlined    in

Lehmann by adopting policies, offering a complaint procedure,

providing on-going training, and addressing discrimination once

presented.       The    summary       judgment         record    does     not   create    a

dispute    of   material       facts,       as    no    conflicting        evidence     was

offered to refute these proofs.                     The judge's conclusion that

defendant was not vicariously liable for Harrington's conduct

was a correct one.

      Plaintiff next argues a reasonable jury could conclude he

was   constructively         discharged      because      he    endured      "severe    and

pervasive"      harassment,       which          negatively      impacted       his    work

performance and, in turn, adversely affected "public safety."




                                            22                                   A-3252-12T1
Essentially,      he    calls      into   question      the     effectiveness     of

defendant's policy.        We are not persuaded.

       "'[C]onstructive discharge requires not merely severe or

pervasive conduct, but conduct that is so intolerable that a

reasonable person would be forced to resign rather than continue

to endure it.'"         Zubrycky v. ASA Apple, Inc., 381 N.J. Super.

162, 166 (App. Div. 2005) (quoting Shepherd, supra, 174 N.J. at

28).      The   level   of    proof   requires      a   showing    of   "egregious

circumstances," which is even greater "than that required to

establish a hostile work environment[.]"                Ibid.     The proofs must

show   "outrageous,      coercive     and      unconscionable"     acts.      Ibid.

(citing Shepherd, supra, 174 N.J. at 28).

       As discussed above, plaintiff's assertions are insufficient

to support a suggestion that despite his complaints, defendant

failed    to    exercise     due   care   to    enforce   its     anti-harassment

policy.    See Gaines v. Bellino, 173 N.J. 301, 303 (2002) ("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.").

Rather, plaintiff admitted once he informed his superiors, they

took action, assigned him a new trainer and, thereafter, he

experienced no problems.            He further admits he never interacted

with Harrington again.             Plaintiff's proofs do not present a




                                          23                               A-3252-12T1
genuine factual dispute allowing a jury to reasonably conclude

defendant's responsiveness and other conduct was so unbearable

that a reasonable person would be forced to separate from the

employment because of the conduct.                Shepherd, supra, 174 N.J. at

27-29.    See also Woods, supra, 290 N.J. Super. at 276.                           Here,

the harm was remedied immediately and effectively.

    We    also      reject    as    unfounded      plaintiff's        claims    he    was

improperly trained in safety measures.                    Plaintiff acknowledged

Castellini    instructed       him       on     correct     procedures.            During

plaintiff's    training      with       Castellini,    it     was   discovered       that

Harrington    taught     plaintiff         incorrectly;       these      matters     were

addressed     and    Castellini         informed      Sickler       of   Harrington's

errors.

    Plaintiff's final challenge argues the judge erroneously

barred    disclosure     of        an   unrelated      2008     sexual     harassment

complaint against one of defendant's "upper management" members.

Plaintiff    asserts    this       shows   upper    management's         tolerance    of

harassment.      We find this argument lacks sufficient merit to

warrant review and discussion in our written opinion.                          R. 2:11-

3(e)(1)(E).

    Affirmed.




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