C.V. v. Waterford Twp. Bd. of Educ.

255 N.J. 289

300 A.3d 958

C.V., a minor BY AND THROUGH her parents and guardians ad litem, C.V. and R.V., and C.V. and R.V. individually and in their own rights, Plaintiffs-Appellants,

v.WATERFORD TOWNSHIP BOARD OF EDUCATION, Waterford Township School District, T&L Transportation, Inc., Theresa Bredell, and Leslie Bredell, Defendants-Respondents.

A-24 September Term 2022

087260

Supreme Court of New Jersey.

Argued June 1, 2023

Decided September 12, 2023

Leo B. Dubler, III, Mount Laurel, argued the cause for appellants C.V., a minor, C.V., and R.V. (Law Offices of Leo B. Dubler, III, attorneys; Leo B. Dubler, III, and Melanie C. Playo, on the briefs).

Michael S. Mikulski, II, argued the cause for respondents Waterford Township Board of Education and Waterford Township School District (Connor, Weber & Oberlies, attorneys; Michael S. Mikulski, II, and Amelia M. Lolli, Moorestown, on the brief).

Jeremy M. Feigenbaum, Solicitor General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Sundeep Iyer and Mayur Saxena, Assistant Attorneys General, of counsel, and Noemi Schor and Melissa Fich, Deputy Attorneys General, on the brief).

Alexander Shalom, Newark, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the brief).

Robert G. Devine, Cherry Hill, submitted briefs on behalf of respondent T&L Transportation, Inc. (White and Williams, attorneys; Robert G. Devine, of counsel and on the briefs, and Kimberly M. Collins, on the briefs).

Claudia A. Reis, Morristown, submitted a brief on behalf of amicus curiae National Employment Lawyers Association of New Jersey (Lenzo & Reis, attorneys; Claudia A. Reis, of counsel and on the brief).

JUSTICE WAINER APTER delivered the opinion of the Court.

For five months when C.V. was a pre-kindergarten student in the Waterford Township School District, she was repeatedly sexually assaulted by Alfred Dean, the seventy-six-year-old bus aide who was supposed to be ensuring her safety. C.V.’s parents only discovered the abuse when C.V. came home without her underwear one day.

C.V. and her parents sued the Waterford Township Board of Education and Waterford Township School District (collectively, Waterford) alleging, among other things, discrimination in a "place of public accommodation" "on account of ... sex" in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12(f).

In Lehmann v. Toys ‘R’ Us, Inc., we held that sexual harassment is a form of sex discrimination under the LAD. We delineated a four-part test for an employee "[t]o state a claim for hostile work environment sexual harassment." 132 N.J. 587, 603-04, 626 A.2d 445 (1993). In L.W. v. Toms River Regional Schools Board of Education, 189 N.J. 381, 915 A.2d 535 (2007), we explicitly extended the Lehmann test to claims of hostile school environment sexual harassment brought against schools as places of public accommodation under N.J.S.A. 10:5-12(f).

The first prong of the Lehmann standard, on which this case turns, requires the plaintiff to allege that the harassment occurred because of their sex, or "would not have occurred but for" their sex. 132 N.J. at 603, 626 A.2d 445. In Lehmann, we specifically held that this first prong will automatically be satisfied when the plaintiff alleges sexual touching, which by nature occurs because of a person's sex. As we explained, "[w]hen the harassing conduct is sexual or sexist in nature, the but-for element will automatically be satisfied. Thus when a plaintiff alleges that she has been subjected to sexual touchings ... she has established that the harassment occurred because of her sex." Id. at 605, 626 A.2d 445 (emphasis added).

Despite Lehmann and L.W., the trial court granted summary judgment in favor of Waterford and dismissed plaintiffs’ LAD claims. The court found plaintiffs could not, as a matter of law, prove to a jury that Dean's conduct occurred because of C.V.’s sex, or that it would not have occurred but for C.V.’s sex. According to the trial court, "the but for element can't be satisfied ... where you have a compulsive sexual predator, a pedophile," especially one who testified at his deposition "that he is a compulsive sexual abuser of children, boys and girls." The Appellate Division affirmed, concluding that the LAD does not apply "to a sexual predator's assault of a student on a school bus where there is no evidence his actions were based solely on the victim's status as a member of a protected group." C.V. v. Waterford Twp. Bd. of Educ., 472 N.J. Super. 581, 593, 277 A.3d 507 (App. Div. 2022) (emphasis added).

We reverse the Appellate Division's judgment because it conflicts with Lehmann and L.W. We reiterate that, under Lehmann, sexual touching of areas of the body linked to sexuality happens, by definition, because of sex.

We affirm the denial of plaintiffs’ motion to amend their complaint and to obtain certain records, and we remand for further proceedings consistent with this opinion.

I.

A.

C.V. was in pre-kindergarten in the Waterford Township School District during the 2009-2010 school year. She rode a small bus to school. Waterford contracted with T&L Transportation, Inc. to provide bussing. David McDonnell was C.V.’s bus driver, and Alfred Dean was assigned as the bus aide. Waterford required that an aide be present on the bus to assist with child safety, among other things. Both McDonnell and Dean were T&L employees.

C.V.’s parents, C.V. and R.V., first realized something was wrong when C.V. came home from school in April 2010 without her underwear. When her parents asked her what happened, C.V. told them that Dean "took her underwear ... because she had peed on the bus." When asked whether anyone touched her, C.V. eventually disclosed that Dean "stuck his fingers in her vagina and ... told her not to tell her mommy or the police."

In a statement to the Camden County Prosecutor's Office (CCPO) in April 2010, C.V. stated that Dean "sticked his fingers in [her] vagina" and "sticked his fingers in [her] butt too" when she was on the school bus. She said that Dean would say "abracadabra" and do "magic" and play "game[s]" in which he would pull down her underwear and digitally penetrate her vagina. C.V. made similar statements to Dr. Martin Finkel, Medical Director of the Child Abuse Research Education & Service Institute. She also told Dr. Finkel that "I was trying to take his finger off me but he wouldn't let me."

Dean admitted to the CCPO that he sexually assaulted C.V. during multiple bus rides between December 2009 and April 2010. He agreed that he covered the bus's video camera with a piece of paper and then rubbed C.V.’s thighs, vagina, and buttocks. He also admitted to putting his hands inside C.V.’s underwear and on her vagina.

David McDonnell was also questioned by the CCPO. He admitted that he knew that Dean both (1) covered the bus's video camera; and (2) removed the booster seats that were required to be on the bus, instead having the preschool children sit directly on the bus seats or on Dean's lap.

Dean was indicted and pled guilty to first-degree aggravated sexual assault. In preparation for sentencing, he was evaluated by the Adult Diagnostic and Treatment Center in Avenel (Avenel) and determined to be a "repetitive and compulsive" sex offender who "by his own admission ... molested other children." Dean was sentenced to ten years’ imprisonment at Avenel, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

B.

In May 2014, C.V., by and through her parents and guardians ad litem, C.V. and R.V., and C.V. and R.V. individually and in their own rights (collectively, plaintiffs), sued Waterford, T&L Transportation, Inc. and T&L principals Leslie and Theresa Bredell (collectively, T&L), and others (collectively, defendants). The complaint alleged negligence against Waterford and T&L (count one), sex discrimination in violation of the LAD against Waterford (count two), and sex discrimination in violation of the LAD against T&L (count three).

During his deposition in this case, Dean admitted that he had sexually abused at least five children, including his own stepson, over a period of decades. He stated it was "like a disease or something," "something that goes in your mind that ... you can't control." In response to the question, "[h]ad it been a while since you had touched a child before you were on the T&L bus?" Dean said, "26 years or something like that."

Dean also admitted that even though the preschool children were required to sit in car seats on the bus, he took the car seats off the bus and put them in his shed. And he agreed that C.V.’s underwear was found in his van. However, Dean testified that he never touched C.V.’s vagina and was "being accused of something I didn't even do." "[S]ome day," he insisted, "it'll come out that I never did it." Dean also stated that he was being honest about the children he had previously assaulted in the same way that he was being honest about never having touched C.V.

During discovery, plaintiffs submitted evidence that although there were male and female children on the bus with C.V. during the 2009-2010 school year, Dean was only accused of sexually assaulting other female students, not male students.

First, plaintiffs cited an arbitral award against Waterford finding that Dean sexually assaulted J.D., a four-year-old girl on C.V.’s school bus. The award specifically found that Dean played "games" with the children he abused, brought them stuffed animals, and digitally penetrated J.D.’s vagina and rectum. Second, plaintiffs offered C.V.’s 2017 forensic psychiatric evaluation report. In the report, the psychiatrist, Dr. Mala Gupta, concluded that another girl, "Lauren," was also sexually abused by Dean on the school bus and C.V. had likely witnessed that abuse. Third, plaintif...