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Roberts, Diane H. et al. v. Keansburg Board of Education and Samuel C. Capalbo

Cite As 5 N.J.A.R. 208

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Roberts, et al v. Keansburg Bd. of Ed.
Cite as 5 N.J..4.R. 208
DIANE H. ROBERTS,
Complainant,
V.
KEANSBURG BOARD OF EDUCATION
and SAMUEL C. CAPALBO,
Respondents.
JUDITH REYNOLDS,
Complainant,
V.
KEANSBURG BOARD OF EDUCATION
and SAMUEL C. CAPALBO,
Respondents.
KAREN L. BROWN,
Complainant,
V.
KEANSBURG BOARD OF EDUCATION
and SAMUEL C. CAPALBO,
Respondents.
Decided May 3, 1983
Initial Decision
SYNOPSIS
Complainants brought charges of sex discrimination against respon-
dents alleging that respondent Capalbo created a sexually hostile and
offensive work environment in violation of N.J.S.A 10:5-12(a) and
that respondent Keansburg Board of Education either permitted or
condoned such alleged acts of discrimination.
The administrative law judge assigned to the case, found that, using
an objective standard, respondent Capalbo as principal of the high
school in which complainants taught subjected complainants to crude
and vulgar language and offensive in quiries resulting in a hostile and
intimidating work environment which was actionable under the New
Jersey Law Against Discrimination. The judge rejected respondent's
argument that the remarks, as speech, were protected by the Federal
and State Constitutions. In addition, the judge determined that re-

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spondent Capalbo as a supervisor was, under N.J.S.A 10:5-12(a), an
employer and not a co-worker and thus the Board of Education was
also liable for his conduct.
The judge determined that complainants were entitled to damages
for pain, suffering and humiliation along with attorney fees.
Kenneth I. Nowak, Esq., for complainants(Zazzali, Zazzali & Kroll,
attorneys)
Joseph D. Youssouf, Esq., for respondent Keansburg Board of
Education
Charles J. Uliano, Esq., for respondent Samuel C. Capalbo
(Chamlin, Schottland, Rosen, Cavanagh & Uliano, attorneys)
GLICKMAN, ALJ:
These three consolidated cases involve charges of conduct at a
work-place constituting sex discrimination on the basis of the creation
and existence of a sexually harassing, offensive or abusive work en-
vironment in violation N.J.S.A. 10:5-12(a). Respondent Keansburg
Board of Education denies complainants' claims and asserts it neither
permitted nor condoned such alleged acts, conduct or words which
may have taken place. Respondent Capalbo denies that his actions,
conduct or words are actionable under the existing law.
On November 14, 1981, the Division on Civil Rights received three
verified complaints from Diane H. Roberts, Judith Reynolds and
Karen L. Roberts. On May 11, 1982, Kenneth I. Nowak, attorney for
complainants, requested that all three matters be forwarded to the
Office of Administrative Law as contested cases. On June 9, 1982, the
three matters were transmitted to the Office of Administrative Law
for determination as contested cases pursuant to N.J.S.A. 52:14F-1 et
seq. At a prehearing conference held on July 16, 1982, the following
issues were identified:
A) Did respondents' alleged conduct constitute sex discrimination
on the basis of harassment against complainants in their em-
ployment in violation of N.J.S.A. 10:5-12(a)?
B) If complainants should prevail, what relief are they entitled to?
INTRODUCTION
Between December 1 and December 14, 1982, this court heard ten
days of testimony dealing with events, conduct, actions, and words

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which took place at Keansburg High School. If I did not know better,
I would have believed that all of this took place in some bar or locker
room. The behavior of some members of the teaching staff, and
especially of respondent Capalbo, was inappropriate and out of place
in a public school. I had a chance to observe Capalbo for ten days,
to listen to the testimony for and against him, and to listen to
Capalbo's own version of the incidents; it is quite clear that Capalbo
is crude, boorish, insensitive and a bully. He is a disgrace to the
profession of teaching. He took advantage of his position as principal
knowing that no female teacher would stand up to him. The example
that he set for other members of the teaching staff was poor. The
tone and atmosphere which was created during his administration in
the high school was degrading and humiliating. Capalbo was glib in
his testimony and seemed proud and without any remorse about his
words, actions and conduct directed at female teachers under his
supervision. When asked during his own testimony by his own lawyer
whether he made certain sexually offensive remarks toward female
teachers, Capalbo replied, "Sure, I did."
The following significant events will help to put this matter in its
proper context:
1. Capalbo was appointed principal of the high school on July
1, 1979.
2. He served as principal during the 1979-80 and the 1980-81 school
years.
3. On July 1, 1981, Olga Kupczak was appointed principal to serve
during the 1981-82 school year, replacing Capalbo who had been
transferred to the principalship of an elementary school.
4. On January 13, 1981, a meeting took place with teachers Carol
Noe, Virginia Grezner, Judith Reynolds, and Acting Super-
intendent of Schools, Joseph C. Caruso, concerning alleged sex
discrimination by Capalbo. Caruso told the women to contact
the State Department of Education. Mr. Gallagher, Board of
Education President, was at the meeting for a brief time.
5. In February 1981, Acting Superintendent Caruso was appointed
superintendent.
6. On November 14, 1981, three civil fights complaints, which are
the subject matter of this suit, were filed with the Division on
Civil Rights.
7. On December 3, 1981, tenure charges were filed with the
Keansburg Board of Education seeking removal of Capalbo.
8. On January 14, 1982, an article appeared in the local newspaper
about the civil rights action.

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9. In January 1982, the Board of Education dismissed the tenure
charges against Capalbo.
10. In May 1982, a petition was filed with the Commissioner of
Education appealing the Board's dismissal of the tenure
charges.
DISCUSSION OF FACTS
RELATING TO WORDS, ACTIONS OR CONDUCT
DEALING WITH CREATION OR EXISTENCE OF HOSTILE,
ABUSIVE OR HARASSING WORK ENVIRONMENT
Karen Brown, one of the complainants, has been employed by the
' Keansburg Board of Education as a teacher of Business Education
since September 1968. Although she did not actually know Capalbo,
they both attended the same high school. She has known and worked
with Capalbo since coming to Keansburg High School in 1968.
Capalbo has been principal of the high school since September 1979,
was also department chairman of Business Education, and president
of the local teachers' union, Keansburg Teachers Association (KTA).
Many of the incidents which took place between Brown and
Capalbo occurred either early in the morning in the faculty room or
at lunchtime in the faculty room. Capalbo, during his two years as
principal of the high school, during the 1979-80 school year, and less
frequently during the 1980-81 school year, would make some of the
following comments to Brown in the presence of others:
"I'd like five minutes in bed with you."
"I'd love to have your legs wrapped around me."
"I'd love to jump on your back."
"What did you do last night?"
"You look like you had a rough night"
In September 1979, when Brown was still nursing her baby born
in April 1979, Capalbo stated to her:
"How come your tits are so big?"
"I'd like to have my head between your legs."
"I'd love to have you on top."
Most of Capalbo's remarks were made in the faculty lounge with
people present. Brown would respond:
"Shut up."
"Leave me alone."
"Sit down."
"What makes you think you're so good."

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"Knock it off."
"You're disgusting."
"Can't you think about anything else?"
In June 1980, Brown became pregnant again. Capalbo remarked:
"You should have an abortion."
"You couldn't afford to have a child."
Capalbo's comments would continue almost daily. Brown's
stomach would turn over and she would try to psyche herself up to
get ready for the daily attacks and offensive comments. She felt
degraded, humiliated and nauseated by Capalbo's treatment. Some-
times she tried to ignore his comments but at other times she was
at the point of tears. She hated to enter the faculty room to be exposed
to such comments.
Capalbo became more explicit with sexual statements such as:
"I would like to have my head between your legs."
"You would be great except you don't have any top."
In September 1979, an incident happened at a faculty meeting where
one of the teachers, Alice Kumanoff, asked Capalbo a question re-
garding his newly established student discipline policy. When ques-
tioned about this policy, Capalbo stated in front of the entire faculty,
"Well, my discipline policy depends upon a number of things. One
thing, if the student is female, how well she is built." With this, he
made a gesture to the breast area, indicating that girls who are well
built would be treated differently than others.
Capalbo would often physically touch Brown, doing such things
as grabbing her leg, pulling up her skirt, patting her on her behind,
rubbing her back, and peeking down her blouse. He would often
nudge her neck.
Brown was at school during the entire 1979-80 school year, was at
school from the beginning of the 1980-81 school year until Thanksgiv-
ing, was out on maternity leave until March, and then was in school
from March until the end of the school year. Between the beginning
of the 1980-81 school year to November, Capalbo would say such
things as:
"Well, Brown, look at the shape of you."
"Well, now your husband can't get on top.
Do you now, Brown, get on top?"
"You should have had an abortion."

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"Your husband is hunting for two-legged, not four-legged,
animals."
"What does your husband do, go in the back door?"
These remarks occurred practically every day during this period of
time. Brown thought they were awful and horrible and made her a
nervous wreck. She would tell Capalbo to "shut up" and that he was
disgusting.
Before she left for the birth of her baby and went on maternity
leave, Capalbo attempted to obtain a letter from Brown indicating
when she would be starting her leave. Capalbo called on the
loudspeaker system, "Where's the letter about when you're leaving?"
At some point, Capalbo came into Brown's teaching room and said
in front of the students, "I don't care if she drops dead having the
kid, I want the letter." Capalbo also stated, "Here's Brown now, 37
and pregnant, she should have had an abortion."
Upon returning to school in March 1981, Capalbo said to Brown,
"Hello, Ms. Brown, you look like you've lost some weight." No other
remarks by Capalbo were directed at Brown from March 1981 until
the end of the school year.
When Brown and others walked into the faculty room, they would
hear animal calls such as dogs barking, lamb noises, and horse noises.
During the 1981-82 school year, after Capalbo had been transferred
to another school, some of the male faculty members would continue
to carry on in the faculty room and make remarks such as,
"Sexual harassment."
"Don't get near her."
"Don't touch me."
One of the male teachers, Mr. Murray, would sing the following lines
of a song, "I wish I were a toilet seat, so my friends could shit on
me. TM
In the fall of 1980, Brown heard Capalbo say to Jane Butkus, "Jane,
my big Polish girl, broad shoulders, she can take it."
Capalbo said to Roberts that she needed more meat on her bones
because men liked women with meat on their bones.
As a result of the words, actions and conduct of Capalbo, Brown
neither brought any action under the grievance procedure of the
IThese actions occurred often and seem to be casually related to complainants'
filing the within civil rights complaints.

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collective bargaining agreement or any affirmative action policy be-
cause it would have had to be brought before Capalbo himself nor
did Brown complain to the superintendent. However, some women
did have a meeting with Caruso and Board President Gallagher in
January 1981. In November 1981, Brown was one of three teachers who
filed a civil rights complaint and in December 1981 tenure charges
against Capalbo were filed with the Board of Education.
In January 1981, Noe, Grezner, and Reynolds went to speak to
Acting Superintendent Caruso about the actions, words and conduct
of Capalbo. Caruso did not want to know anything about such inci-
dents and told the ladies to call the Department of Education. Caruso
did nothing meaningful about the information submitted to him.
Gallagher was there for part of the meeting.
Brown was scared of Capalbo and felt he was in a position to do
her harm. He was the principal of the high school and had made
boasts that he would one day be superintendent. He was in a position
to negatively evaluate her, even though he did not do so. Brown felt
Capalbo could change teaching assignments and duty periods. She felt
that she was a victim of Capalbo's words, actions and conduct an(
the conditions and tone which were established in the high school b3
him.
Brown contends she never initiated anything with Capalbo. She
admitted that sometimes she would make remarks such as:
"You little guinea."
"I'm too much of a woman for you, you could never handle me."
"You are a little prick, Sammy."
"You never had children, Sammy."
At one time, Brown was active in the KTA, as its secretary while
Capalbo was president. Brown was a supporter of Capalbo for the
presidency of the New Jersey Education Association (NJEA).
Although she initially thought that Capalbo was her friend, she stop-
ped being his friend on the day he became principal.
Diane H. Roberts, one of the complainants, began her employment
in Keansburg High School in September 1980. During the 1980-81
school year, she had the same lunch hour as Brown which ran from
approximately 11:45 a.m. to 12:13 p.m. Capalbo came into the lunch-
room practically everyday. At the outset of that school year, Capalbo
said to Roberts:
"You have to gain some weight, Ms. Roberts, you're too thin."
"Men don't like thin women."

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"How tall are you--you're too tall--why do you wear heels?"
"I'm going to have to take you out and fatten you up."
"Look, guys, new meat."
"If you had 20 or more pounds, you'd be my kind of women."
Most of the remarks were made during the lunch hour in September
and October. Additionally, Capalbo would rub Roberts' shoulders
and put his face next to hers, cheek to cheek, at least three or four
times a week. Roberts was afraid to confront Capalbo or to cross
him. She was an untenured teacher and was frightened he could take
action against her.
In November 1980, she recalls hearing Capalbo say to Brown:
"She was a free ride--everyone could jump on her."
"Karen Brown's husband is not hunting for four-legged animals,
he's hunting for two-legged animals."
Toward the end of Brown's pregnancy, Roberts heard Capalbo say,
"If Karen Brown starts to bleed, Ray can take her to the hospital."
Ray was a custodian who was "slow." During October 1980, Roberts
recalls Capalbo saying about Brown:
"She and her husband shouldn't have kids together. It should
have been me and Karen Brown. We would have beautiful kids
together."
During the fall 1980, Roberts heard Capalbo refer to Jane Butkus as
"Plain Jane" and Linda Petty as "Olive Oyl."
As a result of the actions, words and conduct of Capalbo, Roberts
felt mortified and helpless. She was a nontenured teacher and as such,
felt she was in a difficult position. She was embarrassed and felt
frightened. Roberts' perception was that Capalbo had a lot of power
both in school and in town. She concluded that there was nothing
she could do about his behavior. After a while, she wanted the
"ground to open up and swallow her." She could not eat lunch.
During the 1981-82 school year, when Capalbo was no longer a princi-
pal at the high school, she recalls animal noises being made at the
beginning of faculty meetings, which noises sounded like sheep, horses
and pigs. Such noises would not occur when men walked into the
room. As a result of the noises and behavior in the faculty room,
Roberts stopped going there and as she stated, "You wouldn't get
me there with shotgun." In November 1981, Roberts filed a complaint
with the EEOC and with the Division on Civil Rights. In December
1981, Roberts signed a letter which was submitted to the Board of

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Education in which she stated that she wanted charges brought against
Capalbo for conduct unbecoming a teacher. Roberts was not present
at the meeting with Superintendent Caruso and Gallagher in January
1981.
Roberts testified that she is 5'9" tall. Capalbo's remarks to her about
her height and weight were offensive and she did not like them. His
remarks made her feel less feminine, self-conscious about her height
and aware that some people had a perception that women should be
petite and dainty. Roberts surmised and feared that if she ever told
Capalbo to shut his big mouth, as a nontenured teacher, she might
receive a bad evaluation from him.
Henry Trzeszkowski testified that he has been employed by the
Keansburg Board Of Education as a teacher of Math and Social
Studies and has taught in the high school for six years. He knew
Capalbo when he was principal of the high school during the 1979-80
and 1980-81 school years. Trzeszkowski was present in the faculty room
on many occasions when Capalbo made statements to Brown and
Roberts. He heard such statements directed at Brown as:
"Look at that backside."
"Wouldn't you like to get on that back."
"That's a lot to hold on to."
"Brown, wrap your legs around me."
"Give me five minutes with Brown."
"If child stops nursing, does she go flat--you better continue to
nurse."
These statements continued through the school year and happened
very often. Trzeszkowski heard Brown respond to Capalbo by saying,
"Stop it," "Get off my back," and "Leave me alone." Trzeszkowski
does not recall Brown ever initiating any sexual comments to Capalbo.
Trzeszkowski corroborated Brown's version of what happened at the
teacher's faculty meeting when Capalbo was asked about his student
discipline policy. Trzeszkowski recollects that Capalbo said, "It
pends on the size of--" and then Capalbo referred to a woman's
breasts.
During the 1980-81 school year, Trzeszkowski recalls Capalbo saying
to Brown, "You got yourself knocked up" and "You should have
an abortion." Capalbo referred to Brown's husband as "jackass."
Capalbo said, "Jackass was out screwing instead of hunting" and
"You shouldn't believe jackass." Additionally, Capalbo said:

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"Who gets on top now?"
"She's good for a free ride now."
"She's already pregnant--you can't get hurt."
Trzeszkowski recollects serving on hall duty with Roberts in Sep-
tember and October 1979. He recalls Capalbo saying to her, "Don't
put your key in your pocketbook until you gain ten pounds." Refer-
ring to Roberts' weight, Capalbo said, "I like woman with more meat
on their boneswhave something to hold on to." During the 1981-82
school year, Trzeszkowski heard noises in the faculty room in the
morning when he was getting a cup of coffee. These noises would
occur when one or two women walked into the faculty room and
sounded like horses, goats and sheep. He does not remember ever
hearing noises made when men walked into the faculty room. He
discovered that James Kochman made the sound of a horse, Robert
Murray made the sound of a sheep, and Robert Strickhart made the
sound of a goat. He also heard Murray sing a song, "I' wish I was
a toilet bowl, so people could shit on me." Murray would state, "I
don't want to go near women so that I would be charged with sex
harassment."
Trzeszkowski asserted that he found Capalbo's words, conduct and
actions offensive. Capalbo, who would often walk through the halls
with the President and Vice President of the Board of Education,
commented to teachers that he had the president and vice president
of the Board in his "coat pocket." This boasting by Capalbo had a
certain ring of truth since he was granted early tenure as principal
by the Boardl Trzeszkowski opined that the Board's failure to vote
to certify tenure charges against Capalbo constituted a sanctioning
of his behavior. Trzeszkowski pointed out that no woman laughed
when Capalbo made jokes directed at Brown and Roberts, who would
turn red when such comments were made. Trzeszkowski did not think
Capalbo was humorous or funny.
Fran Ciuba testified that she had been employed by the Keansburg
Board of Education for 11 years in the high school. She recalls sexual
remarks by Capalbo to Brown in September 1979 such as:
"You never looked so good now that you-have tits."
"I'd like to have your legs wrapped around me, Brown."
"I want to jump on your back."
Ciuba would observe Capalbo grabbing Brown's leg. Capalbo also
remarked to Brown,

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"If she'd put her hair up and wore three-inch heels, I'd take her
to dinner."
"Ms. Brown had nice babies; we (Brown and Capalbo) ought to
get together and have babies--they would be worth $200,000 on
the black market."
Ciuba would sometimes observe Brown say to Capalbo, "Leave me
alone, Sam." She never observed Brown initiate any comments of a
sexual nature to Capalbo.
During the 1980-81 school year, in the faculty room in the morning,
Ciuba heard Capalbo say to Brown, "How do you do it now, look
at you." Brown was pregnant at that time. Ciuba also heard Capalbo
say to Brown:
"She's a free ride now."
"Someone else did this damage."
"Jackass can't even afford this baby."
"Look at the shape of you."
"He's not hunting four-legged animals."
"Look at her she's 37 years old and knocked up."
Brown told Ciuba that she did not want to walk into the cafeteria
alone, and felt upset, embarrassed and degraded. Ciuba felt the same
way.
During the 1979-80 school year, Ciuba would observe Capalbo
engage in physical contact with Brown. Such things as grabbing her
leg, rubbing her shoulders, and patting her on the rear end was a daily
occurrence by Capalbo. The same conduct by Capalbo occurred dur-
ing September and October of the 1980-81 school year. Capalbo would
constantly .approach women and massage their shoulders and nuzzle
up to them. During 1980-81, Ciuba observed Capalbo massaging Rob-
erts' shoulders.
Ciuba would hear comments and noises such as grunting noises
from male faculty members when women would enter certain rooms,
but no such noises were made when men entered.
Capalbo's words, actions and conduct were offensive to Ciuba and
she felt he was a sexist who had an abrasive character. Comments
by Capalbo created an environment which was degrading, which she
felt was not funny and which embarrassed her. She was subjected to
hearing the sexual statements daily and could not walk away from
it since it occurred in her place of employment. Eventually, Ciuba
became afraid to walk into the faculty room alone. The atmosphere
and environment in the high school was tense and there seemed to

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be a strain between the sexes. Ciuba was scared to do anything about
what was going on, fearful of Capalbo and the other men who were
making animal noises. She felt that if she did anything, some harm
would come to her. She recalls the animal noises made by the three
men on the faculty and she recalls Strickhart imitating Julia Childs
which, under the circumstances, was offensive to her.
Virginia Grezner has been employed as a Business Education
teacher in the Keansburg High School since September 1980. She was
interviewed by Capalbo on July 21 and 23, 1980. On the latter date,
Capalbo made the following statement, "Here she is pregnant--I
would never sleep with an Italian girl--they are too emotional--they
have too many feelings." Aterwards, Capalbo stated, "German girls
are the kind of girls you like to sleep with--they are cold and have
no feelings." As Grezner was leaving that meeting, he observed
Capalbo putting his hand on Brown's behind. These remarks referred
to Grezner, who was Italian, and Brown, who was German.
On January 13, 1981, Grezner with Noe and Reynolds spoke to
Caruso at the Board of Education offices. Hugh I. Gallagher, presi-
dent of the Board, was there. Neither Gallagher nor Caruso wanted
to hear any of the problems raised by the women. Grezner went to
the meeting because she received a poor evaluation from Capalbo.
Upon being asked about Capalbo's behavior on cross-examination,
Grezner indicated that she was shocked when Capalbo made those
remarks which he did at the interview. It was obvious to her that
Capalbo did not care for women. She admitted that she did not like
Capalbo as a superior and she felt he did not like or respect women
on a professional basis. She acknowledged that she did not think
Capalbo was asking her to sleep with him as a precondition to getting
a job.
Although not presently employed, Noe worked at Keansburg High
School as an English teacher from 1972 until 1981. On January 13, 1981,
she, Reynolds and Grezner went to speak to Acting Superintendent
Caruso, who was also the school district's affirmative action officer;
Galigher was also at the office. Noe felt that the climate of the school
was hostile to women. She was concerned about negative evaluations
some had received as well as noises in the faculty room. When Noe
told Caruso and Gallagher that the high school was getting difficult
for women, she was told not to say anything else but to give Nadya
Thomas, in Trenton, a telephone call Ms. Thomas was expected to
help them.
As far as Noe knew, Caruso did not conduct any investigation after

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the meeting with the women on January 13, 1981 and she also does
not believe the Board conducted any investigations with regard to her
allegations of sexual harassment.
Before Capalbo became principal, Noe never dreaded walking into
the faculty room. After he became principal, the climate in the school
became hostile. Noe stayed up Sunday nights worried about going
to school the following day.
Her purpose in going to Caruso on January 13, 1981 was to discuss
the hostile environment. Gallagher said it would better if he removed
himself from the discussions. Upon calling Nadya Thomas in Trenton,
Noe was told to get information together and come to see her. Such
a meeting took place in April at which time it was communicated to
her that Thomas felt it was a case of sexual harassment. Although
Noe has some familiarity with the grievance procedure, she felt that
it should not be grieved under the contract since the first step was
to go to Capalbo. Eventually, Noe, who characterized herself as not
being a fighter, resigned from her position at Keansburg High School.
Although Noe readily admitted that at one time she had been friendly
with Capalbo whom she knew for at least 25 years and had supported
Capalbo for the position of Keansburg Teachers' Association (KTA)
president and had endorsed him for president of the NJEA, she,
nevertheless, became upset with Capalbo over his actions, conduct and
words.
Judith Reynolds has been employed as a Home Economics teacher
at the Keansburg High School for 11 years and taught there during
the two school years when Capalbo was principal. During the fall 1979,
she was present at the faculty meeting where Capalbo announced his
policy regarding student discipline. She corroborated Brown's version
of the meeting. No women at that meeting were laughing, but the
men chuckled upon hearing Capalbo's statements. On other oc-
casions, Reynolds heard both the Julia Childs imitation and the
animal noises.
On January 13, 1981, Reynolds, along with Noe and Grezner, attend-
ed a meeting with Caruso and Gallagher. Her concern was the sexual
discrimination that existed. Caruso did not want to hear anything
from the women and told them to call Trenton where the matter would
be better handled. Neither Caruso nor the Board of Education con-
ducted any meaningful investigation after January 13, 1981 nor did
Reynolds notice any changes in the conduct of Capalbo, or the other
men making noises, after January 13, 1981.
During the 1981-82 school year, Reynolds continued to hear noises

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at faculty meetings. These noises were made prior to the time the new
principal arrived for the meeting. It seemed to Reynolds that these
noises were directed at females and were made when they walked in
the room. No noises were made when the men walked in the room.
During the 1977 school year, Reynolds was a chairperson of her
department. On August 3, 1979, Reynolds completed work to be
certified as a supervisor. Prior to 1979, a law was passed that all
supervisors had to be certified. Since Reynolds was not certified prior
to August 3, 1979, she ceased to be a chairperson. Capalbo was a
chairperson during the 1979-80 and 1980-81 school year. In March 1980,
Reynolds asked Capalbo if she could look forward to being a chair-
person during the following school year, since she was now qualified
to be one. He laughed in her face and indicated that all chairpeople
would be men. During 1979-80 and 1980-81, no females were chair-
persons of any departments. This incident occurred March 1980 and
as a result thereof, Reynolds felt demeaned and demoralized. For the
first time, she considered working elsewhere. She felt Capalbo's words,
actions and conduct were obnoxious and offensive. Reynolds felt the
Julia Childs imitation was sexual and directed at her. She was a
cooking teacher and she felt the victim of such conduct. She felt awful
and mortified.
Reynolds felt intimidated by Capalbo and fearful of losing her job.
She saw him as being a powerful person, which in her mind was borne
out because during one year, he was both KTA president, department
chairperson, and principal. After a while, he was asked to resign as
president of the KTA since a conflict of interest existed because he
was also principal. Reynolds believed that Capalbo had the power
to fire a teacher and believed that the Board would listen to his
recommendation. Capalbo had said that he had the Board of Educa-
tion in his pocket. Even though he was transferred to a different school
and was not at the high school during the 1981-82 school year, Re-
ynolds thought and feared that he would be transferred back.
Joseph C. Caruso testified that he became superintendent in Febru-
ary 1981, after serving as Acting Superintendent of Schools since
August 15, 1979. In September 1980, a memorandum was circulated
to the principals, which memorandum was to be given to all em-
ployees. In it, a grievance procedure was outlined dealing with dis-
crimination in employment. In 1979, Capalbo became principal of the
high school. At that time, there were three principals in the district,
1,000 students and 54 teachers.
Caruso only. went to the faculty lunchroom three or four times

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during the 1979- 80 school year. He relied on Capalbo to run the high
school. During that school year, he received no communication from
anyone regarding sexual harassment.
On January 13, 1981, while at his office with Gallagher, Grezner,
Noe and Reynolds came to see Caruso. They all started to tell him
about some discrimination by Capalbo. The entire conversations took
less than 14 minutes. He was told about derogatory remarks made
by Capalbo and staff and noises being made inthe cafeteria. All the
women were. talking at once. Gallagher said he might have to hear
this matter as a tenure case and did not want to be prejudiced.
Caruso told the women to get all of their facts down in writing
so they would not be thrown out for some procedural deficiency. No
forms were given to the women nor were they given any guidelines
about what to do. Caruso was told by the women that they did not
want to proceed with any grievance procedure since the principal was
the discriminator. He suggested to the women that they use his tele-
phone and call the State of New Jersey and receive some guidance
from Nadya Thomas.
After January 13, 1981, Caruso took no steps to investigate those
matters communicated to him by the women. He was concerned about
reprisals by other staff members if he conducted an investigation. In
other words, some of the staff members might hold it against the
women. After January 13, 1981, Caruso never received anything in
writing from any of the women regarding their allegations of sexual
harassment.
Caruso indicated that he asked some of his teaching staff members
if they heard noises in the faculty room to which he was told they
did. His teachers told him that they would not participate in any way
against other teachers as they felt there would be reprisals. The names
that Caruso heard as being involved with making noises were Robert
Murray, James Kochman, Robert Strickhart, and Walter Mewes.
Caruso never spoke to any of the four men nor to Capalbo privately.
At some point, Caruso recommended transferring Capalbo from the
high school. His primary reason for such recommendation was
Capalbo's educational growth as an administrator. He also felt that
there was unrest by his faculty. This recommendation was made in
the spring 1981 and the transfer was effectuated by the Board on July
1, 1981 when Capalbo was transferred to an elementary school. No
disciplinary steps were ever taken against the four teachers previously
mentioned. Caruso reiterated that he received nothing in writing from
the teachers between January 13, 1981 and July 1981. Olga Kupczak

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replaced Capalbo as principal in the high school on July 1, 1981. She
was told by Caruso to be on the alert for sexual discimination. Caruso
never received anything in writing from alga Kupczak.
On December 3, 1981, Caruso received tenure charges filed against
Capalbo. No investigation of any kind was taken by Caruso after
receiving the tenure charges. Caruso commented that any teacher
wanting to become a department chairperson was required to put such
a request in writing. Although the person could make such request
orally, it thereafter had to be followed in writing.
On cross-examination, it was brought out that Gallagher apprised
the Board in an executive session after January 13, 1981 of the situation
involving Capalbo and the women. It was decided that until the
women came forward in writing, nothing would be done. Caruso
? indicated that he told Reynolds about one week after the January 13,
1981 meeting that unless things were put in writing, no action would
be taken. Caruso admitted that he did not tell Reynolds that the
writing had to be done pursuant to the affirmative action policy.
Caruso does not recall if the question of sexual harassment came up
at any time other than the one Board of Education meeting. Caruso
issued no written statement after his meeting with the women on
January 13, 1981 nor did he issue any memorandum with regard to
the noises that occurred in the high school. His informal investigation
indicated that no persons would substantiate in writing what was
going on. Because nothing was ever put in writing, Caruso did nothing
about it. No affirmative action grievance or KTA grievance was ever
filed.
After transferring Capalbo to a principalship at the elementary
school, alga Kupczak became principal of the high school on July
1, 1981. Although she periodically informed Caruso about animal
noises, any noise stopped before she entered the room. Such com-
plaints and verbal remarks about animal noises were communicated
to her between September and December 1981. When Kupczak 're-
ceived such information, she told the teachers to put something in
writing, which she never received.
Between September 1981 and January 1982, Kupzcak was aware that
the atmosphere or environment in the school was tense. A "good
morning" by her would be rebuffed or avoided by others. Once the
civil rights complaints were filed by Brown, Roberts and Reynolds,
an event which was generally well known by all the teachers, a
polarization of the faculty became more apparent.
Kupczak did not issue any memoranda or other writing to any of

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the teachers engaged in making animal noises. In March 1982,
Kupczak did receive complaints in writing from Reynolds, Roberts
and Brown. A written warning was issued to Murray on March 29,
1982. No tenure charges were preferred against Murray. Kupczak was
also aware that Kochman made animal noises. In fact, she spoke to
Kochman and said, "I can't understand why anyone would make
animal noises." At the first meeting of the 1982-83 school year, some
teachers made horse and pig noises.
Samuel C. Capalbo testified that he was originally hired to work
in the Keansburg High School Business Department. Although he
went to high school with Brown, he really did not know her then.
Brown was hired in 1967, just as was Capalbo. When asked by his
own lawyer whether he said those things to Brown which she testified
to, Capalbo said, "Yea, certainly." He also readily agreed that Brown
said such things to him as:
"You little guinea."
"Your prick isn't big enough."
"I can put two of you in there."
"You're a shrimp."
Capalbo readily, and in a bragging way, admitted that he made those
comments before becoming principal and after becoming principal.
Capalbo described himself as being a tough person who would take
no nonsense. Before becoming principal, it was impossible to walk
into the student cafeteria. After becoming principal, he spent much
of his time during the lunch hours in the student cafeteria on center
stage with a microphone. Capalbo indicated that he would rarely go
into the faculty cafeteria. He describes his activities as going in and
out and spending two or three minutes in the faculty cafeteria.
With regard to the faculty meeting in September 1979 and the
questio n asked by Alice Kumanoff regarding Capalbo's student dis-
cipline policy, he indicated that he responded as Brown and others
said he did. As Capalbo put it, "I was a ball buster." He did refer
to the size of women's breasts in terms of the student discipline
problem and indicated that there was laughter after he said that. Then,
he claims that he said, "Let's get serious" and he discussed the student
discipline policy. He points out that in 1979-80, there were 370
suspensions and in 1980-81, there were 209 suspensions. Capalbo went
into a detailed description of the verbal play which he engaged in with
other male faculty members. He would say such things as, "Did you
get any?" or "You look like a scarecrow" or "Your kids look too

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good to be yours, they must be the mailman's." He would say some-
thing to Mr. Skalzo that, "You dress like a slob" or "Look at your
hairdo." Capalbo would constantly make fun of such male teachers
as Kochman, Lasko, Skalzo, and Murray.
There were noises in the faculty cafeteria before and after Capalbo
became principal, which sounded like wolves, horses or sheep and to
which anyone was subject. Capalbo explained how, if you could
survive what went on in the faculty cafeteria, you were ready to
perform before the students. Insults were a way of life in the
Keansburg High School faculty cafeteria.
Capalbo claims that Brown's husbands' nickname was "Jackass."
He insisted that everyone called him that. He admitted that he said
he would like to place his head between Brown's legs, but saw nothing
wrong with such a comment. This was just his way of "fooling
around." He admitted that he grabbed at Brown's leg, and when she
would bend over, he patted her behind or gave her slap. He said that
she would hit me in the arm or try to grab him by the testicles.
Capalbo claims this went on for years. He saw his relationship with
Brown as one of best of friends. He admitted that he told her to get
an abortion and although Brown was upset over this, he saw nothing
upsetting about such a statement. He agreed that over the intercom
system he requested Brown to submit a letter for her maternity leave.
In November 1980, during a telephone conversation with Brown,
he was told by her that he had embarrassed her and that his comments
were hurting her. Capalbo claims that he apologized to Brown and
said that he did not realize that he was making her feel bad. In March
1981, when Brown came back to school after her maternity leave,
Capalbo said, "You're looking good Karen" and never made another
insulting remark to her. Capalbo said he never intended to sexually
harm Brown nor did he intend to create a hostile environment.
When Capalbo was principal in 1979, he was also president of the
Keansburg Teachers Association (KTA). He was told that he was
wearing "two hats" and that this created a problem. Finally, in
December 1979, he resigned as president of the KTA.
Capalbo admits that he made remarks about Grezner and her
Italian ancestry, such as, "I don't like Italian women, they're too
emotional--Give me a German woman who has no emotions." He
describes the reasons he made such remarks, i.e., that this was what
the women wanted to hear, and that he was "playing the role."
When Roberts started employment in September 1980, he re-
members saying to her, "Put on a little weight--men will like you."

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He denies saying, "Here's a new piece of meat." He does agree that
he placed his hand on Roberts neck or shoulders in the cafeteria a
number of times.
Capalbo admitted making remarks to Reynolds such as, "You have
no tits," but denies that this was to sexually harass her. Since Reynolds
had no certification during the 1979-80 school year, she was not given
a chairmanship. When Capalbo was asked on March 27, 1980 if he
would recommend Reynolds for a chairpersonship, he said to her,
"Put it in writing like everyone else." According to Capalbo, Reynolds
never put it in writing. On one occasion, Capalbo went to Reynolds'
Home Economics room where the students were and with white
gloves, wiped his hands over parts of the room to show that it was
dirty.
Capalbo received no explicit direction from the Board of Education
regarding the faculty lunchroom. At no time in September, October,
November or December 1980 did any of the faculty members complain
that he was upseting anyone with his words, conduct and actions.
Capalbo insisted that he did not have any aspiration to become
superintendent. During the election for Board candidates for the
1979-80 school year, he supported candidate Gallagher. At some point,
there appeared an article in the newspaper indicating that Capalbo
would be the next superintendent. At that time, he had no certificate
for the superintendent's position. When Gallagher, the Board presi-
dent, entered the high school during Capalbo's principalship, he
would be there at approximately 7:00 a.m. when no other faculty
members were there.
All of Capalbo's words, conduct and actions were done on his own
responsibility and not by direction of the Board. Capalbo never saw
anything wrong with what he said to Brown and others. He considered
his words, conduct and action as just friendly gestures. As he said
in court with regard to his actions, "To me, it's nothing--not a big
thing." In a bragging manner, he testified that he told Reynolds on
many occasions that she "had no tits." He also said on many oc-
casions, "A woman's place is in the bedroom or kitchen." Capalbo
wanted his faculty people to socialize and have a good time in life.
He wanted everyone to fit in and get along. He never at any time
gave any consideration or thought to how others would feel when he
made his remarks, demonstrating an incredible lack of sensitivity and
empathy.
Capalbo was appointed principal in July 1979 and was granted early
tenure in May 1980, after ten months.

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John Szalecki has been employed as a math teacher of the high
school since 1968. He viewed Capalbo's words, conduct and actions
toward Brown as nothing more than good-natured kidding. He agreed
that there was a polarization of the teacher's in 1981-82. He heard
sounds and noises such as from a lamb. Szalecki acknowledged that
Capalbo made fun of him by making remarks such as, "Why doesn't
he take you out more" or "Here comes your old man" or "He's like
a dead man." He remembers Capalbo making mocking remarks to
Murray during 1980 such as, "Dr. Imocho" or "Grim reaper";
Kochman was referred to as "Psycho" or "Scarneck." None of the
kidding or remarks were thought to be inappropriate.
Alice Kumanoff has been a teacher at Keansburg High School since
1968. She has known Brown for that period of time and observed
Capalbo and Brown each making comments to the other. She con-
strued this as a lot of joking. After Capalbo became principal, the
joking still continued. Kumanoff did not remember asking the ques-
tion about the student discipline policy. She herself was the subject
of jokes by Capalbo such as, "Here she comes, the head of the
concentration camp." She construed all this as nothing but mere
joking. Very little that Capalbo said would have offended her. She
did indicate that if she heard the remarks from Capalbo to Brown
about his not caring if her baby died, that would have offended. She
asserted that she never took Capalbo seriously. She never heard any
animal noises from the lunchroom.
Linda Bartok has been employed in the district for 14 years. She
worked in the high school under Capalbo during the 1979-80 school
year. She heard many of the exchanges between Capalbo and Brown,
heard Capalbo's remarks at the first faculty meeting wherein he de-
scribed his student discipline policy as being related to the size of a
young lady's breasts, and concluded that it was a joke and everyone
laughed.
She admitted that Capalbo touched her several times, giving her
a neck rub, which did not offend her. Capalbo made cutting remarks
to many of the male teachers such as calling Kochman "Scarneck,"
calling Skalzo "Wino" or "Dirtbomb," calling Lasko "Old goat,"
calling Murray "Grim reaper," and Szalecki "Dead man." She viewed
all of these nicknames,as a friendly gesture.
She admitted that she heard the noises in the cafeteria such as the
animal sounds of goats. Oftentimes, faculty members would be locked
out of the cafeteria as a joke, requiring the teacher to pound on the
door to get in. She felt that Capalbo did not create a hostile work

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environment, but moreover created a very congenial one. Bartok did
not think that Capalbo could ever offend her regardless of what he
said.
Brenda Coanshock has been a teacher of Spanish in the high school
for 11 years. She knew Brown and Capalbo. She remembers a lot of
joking and insults going back and forth, but does not recall the exact
words. Capalbo made comments to her such as:
"What do you know, you're a spic."
"You come from Perth Amboy, you're all low clan"
"You should get a new husband so he could support you."
Capalbo placed his hands on Coanshock's shoulders and massaged
them. Capalbo did not offend her. Nothing Capalbo did or said would
bother Coanshock.
Michael Lasko has been an art teacher at the high school for 29
years. He taught with both Brown and Capalbo. He remembers the
verbal exchanges between the two of them and also the incident
involving Capalbo's description of his student discipline policy. Lasko
viewed what went on in the faculty room as between one big family.
People were loose sexually and very collegial. A lot of interaction took
place. He felt that Keansburg High School was a tough school to work
in and that the socialization and friendliness was a relief from the
tension of teaching. No one was immune from Capalbo's insults.
He described the noises as resembling a zoo. There were goat calls,
primeval screams by Murray; and Skalzo would have a napkin in his
nose. The faculty room was a place to let off steam because teachers
burned themselves out teaching the students. Once you left the door
of the teachers' faculty room, you were a professional.
The Board president told Capalbo that he would be the next super-
intendent and that Lasko would be the next principal of the high
school. He was surprised when Caruso became superintendent. Board
president Gallagher was in the school all he time. Commenting on
Capalbo's personality, if someone crossed him, he would probably
have nothing to do with you.
It was interesting to note that when Lasko testified, he was reluctant
to say the word "ass." He thought that it might offend the court and
might offend Brown to use such words. This seems to be inconsistent
with his willingness to say such things and he present when such things
were said in the faculty room. He does not recall ever hearing Capalbo
say to Brown, "I want to put my face between your legs."
Lasko testified how upset he was that Brown brought the instant

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lawsuit. He did not understand how Roberts, without tenure, could
bring an action.
James Kochman taught at the high school during the school years
1979-80 and 1980-81. He recalls the words that Capalbo directed at
Brown which have been previously referred to. Kochman does not
recall hearing Capalbo saying to Brown, "I'd like to put my head
between your legs." He acknowledged that animal noises were made
in the faculty room such as resembling sheeps, dogs, cats, and goats.
Also, primeval yells were made. He indicated that such noises as goat
sounds were directed at Lasko and not any of the complainants.
During the 1979-80 school year, Capalbo used to tell Kochman,
"You're retarded." He would refer to Kochman because of the scars
on his neck as "Scarneck" and "Sicko." Kochman asserted that
Capalbo's actions, words and conduct never offended him because
he realized the spirit in which they were said. He thought of the faculty
room as like a locker room where friends gathered. What went on
there had no effect on what happened in the classroom. He vigorously
denied that any of the sounds or noises were directed at women
teachers. Kochman himself has made animal noises during the present
year.
Robert Murray has been employed by the Keansburg Board of
Education for approximately 19 years. He has known Capalbo for l0
to 12 years. He recalls hearing the verbal exchanges between Capalbo
and Brown, both of whom he was friendly with. Capalbo referred to
Murray as "Dr. Macho" or "Grim reaper." He would say to Murray,
"Your wife is ugly" or "You work so many hours because you don't
want to go home." Capalbo would often tell Murray, "Go out and
get a piece of ass."
Murray philosophized that teaching was one of the most difficult
jobs. He analogized the teachers' faculty room to a judge's chambers.
He said that this was sanctuary where teachers could go to let off
steam. Murray admitted that he made primeval noises which he has
been making since 1963. He indicated that he did this so as to psyche
himself up. After Olga Kupczak became principal, he viewed her as
being a hatchet person for Caruso and Gallagher. He thought that
the administration put the three complainants up to bringing the civil
rights complaints.
Raymond Coleman has ta'ught science in the high school for 12
years. He was familiar with the verbal exchanges between Brown and
Capalbo. Coleman indicated that the statement, "I'd like to put my
face between your legs" is offensive and obscene.

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James Luzier has taught 14 years for the Keansburg Board of
Education. He also was present and heard many of the verbal ex-
changes between Brown and Capalbo, both before 1979 and during
the school years that Capalbo was principal at the high school. He
was nicknamed the "silver fox" by Capalbo. He never heard Capalbo
say such things as "I'd like to put my face between your legs." He
viewed what went on as just a lot of kidding.
Stewart King has taught for the Keansburg Board of Education
for 15 years. He also remembers the verbal interchange between Brown
and Capalbo. During the 1979-80 and 1980-81 school years, he heard
the animal noises which he felt were not not directed at anyone.
William Boyington has been with the Keansburg Board of Educa-
tion for 16 years. He also heard the verbal exchanges between Brown
and Capalbo, which have been testified to by others. Capalbo would
make remarks to Boyington such as, "You were crazy for having three
children, three boys" or "I want to borrow your kids, I don't want
them, just to borrow them; maybe I'll get some votes." Boyington's
children are multiracial.
Boyington is a friend of Capalbo's, each of them having visited the
other's house. He does not feel that any of Capalbo's actions, words
or conduct are insulting. He contends that the noises made during
the 1979-80 and 1980-81 school years in the faculty cafeteria were
directed at male members of the faculty. The faculty room Was a
sanctuary where teachers could blow off steam and do practically
anything they wanted to.
Robert Curry has been teaching English for the Keansburg Board
of Education since 1968. He observed and heard the continual banter-
ing between Brown and Capalbo. He looked upon this as good-
natured bantering. Capalbo would say such things to Curry as,
"How's your love life?" or "Did you get any this weekend?" or
"You're full of shit." Curry maintained that none of the noises in
the faculty cafeteria were directed at females. Curry would not be
offended by a remark from Capalbo to Brown such as, "I'd like to
put head between your legs." The year after Capalbo was transferred
from the high school, other male teachers were also transferred, to
wit, Boyington, Murray, Strickhart, Skalzo, and Kochman.
Robert Strickhart has worked for the Keansburg Board of Educa-
tion for nine years. He was teaching in the high school while Capalbo
was principal. He admitted that he imitated the voice of Julia Childs.
He picked up this routine from "Saturday Night Live." He denied
that he directed it at Reynolds or Roberts, but did it for everyone's

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attention. He also made animal noises such as goat and horse noises
which he denied were directed at female teachers.
Hugh Gallagher testified that he has been a member of the
Keansburg Board of Education since 1977 and has been president of
it for four terms. He is presently president. He recalls the meeting
which took place on January 13, 1981. He was at the Board office as
acting Board secretary. The meeting occurred in the middle of the
afternoon when Noe, Grezner and Reynolds came over to Caruso's
office. Noe indicated she was having a problem with Capalbo and
started to get into the problem. Noe thought they had been harassed
and thought there was sex discrimination. She started going into
certain aspects of the case and Gallagher stopped them. He asked the
women if they filed a grievance under either the KTA procedures or
the Board of Education procedures. The women told Gallagher that
the first step of the grievance procedure would have been to go to
the principal which is the person they came to grieve about. Gallagher
felt that if the Board of Education would have to act on the Capalbo
matter, he might have to remove himself if he heard anything from
the women. The women looked for direction and Gallagher told them
to discuss it with Caruso. When Caruso came in, Gallagher left.
Gallagher has known Capalbo for at least 25 years. He voted as
a board member to make Capalbo principal of the high school. He
heard gripes and grumbles about the situation in the high school. He
spoke to Brown, who told Gallagher that she was not getting along
with Capalbo. He never received any great detail from any teacher
about the problems in the high school.
Gallagher brought up the subject matter of the January 13, 1981
meeting in an executive session of the Board of Education in January
1981. He discussed the ladies coming to him and Caruso on January
13, 1981 and told the Board that there might be litigation in the future.
On or about January 12,'1982, the Board had a meeting at which
time they discussed affidavits filed by the complainants herein in
support of their action to have the Board certify tenure charges against
Capalbo. The Board refused, by a five to four vote, to certify tenure
charges against Capalbo.
Between January 1981 and December 1981, Gallagher received no
written complaints or grievances. Gallagher claims that he conducted
an informal investigation but found out very little about any prob-
lems. When he walked into the faculty rooms, every one would be
quiet. He heard no noises in the faculty room. Although there was
no written complaint prior to January 13, 1981, he had heard that

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Capalbo discussed a student discipline policy based on the size of
women's bosoms. Gallagher discussed this with Capalbo, who told
Gallagher this was a joke and he did not intend anything by it.
In July 1981, Capalbo was transferred from his position as principal
of the high school to a principalship of the elementary school. In
January 1981, Gallagher was formally made aware of the sexual harass-
ment problem for the first time.
In 1980, when Brown was pregnant, she went to Gallagher, started
crying, and told him about the incident when Capalbo requested a
letter for the Board of Education with regard to maternity leave. At
that time, Capalbo told Brown that he did not care if the baby died
but wanted the letter. Brown conveyed how upset she was over this
conduct.
Jane Pukstas testified that she has been employed by the Keansburg
Board of Education for over nine years. She heard the verbal ex-
changes between Brown and Capalbo which have previously been set
forth. Pukstas would often see Brown with tears in her eyes, red face,
and appearing to be very upset. After Capalbo became principal, more
comments were made in the faculty room. Pukstas would observe
Capalbo rubbing Brown's shoulders and sitting next to Roberts and
touching her.
Capalbo would have physical contact with Pukstas nuzzling up to
her and rubbing her neck and shoulders. Capalbo would refer to
Pukstas as "strong Pollock." She also heard the noises in the faculty
room during the 1979-80 school year resembling horses and sheep.
These noises would occur when women.walked into the faculty room
and not when men walked in there. Pukstas felt that the remarks by
Capalbo to Brown increased dramatically after 1979.
Pukstas felt that Capalbo was trying to seduce her. He asked her
to go out with him, which invitation arose from a bet between Capalbo
and Noe. When Capalbo was principal, he asked Pukstas to go out
to dinner at least ten times during the 1979-80 school year.
Barbara Trzeszkowski has been employed by the Keansburg Board
of Education for 12 years. She heard the verbal exchanges between
Capalbo and Brown before 1979 and afterwards. She thought that they
were inappropriate. She recals Capalbo saying sometime during the
1979-80 school year when Brown was pregnant, "Jackass must have
been the size of a horse to get you pregnant with your tubes tied."
Trzeszkowski also observed Capalbo looking under Brown's skirt and
grabbing her blouse. She was a chairperson from 1974 until 1978. She
never applied for the position in writing. In 1979-80, the regulations

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were changed so that one had to have a supervisor's certificate and
a masters degree. She did not qualify then for a chairperson position.
She never applied in writing to be a department chairperson.
During the 1981-82 school year, Trzeszkowski heard noises such as
a howling dog or wolf. She observed Kochman, Murray and
Strickhart laughing at women. The noises increased after January 14,
1982. The Board of Education did nothing about the charges that were
filed by complainants. The Board allowed Capalbo to remain as
principal. The Board's failure to certify tenure charges appeared to
condone Capalbo's words, conduct and actions. Trzeszkowski felt that
Capalbo was powerful and personally was intimidated by him.
FINDINGS OF FACT
Based on a careful consideration of the testimony and evidence, I
FIND:
1. The "significant events" numbered one through ten previously
set forth in this initial decision are hereby incorporated by
reference as if fully set forth.
2. Karen Brown has been employed by the Keansburg Board of
Education as a teacher of Business Education since 1968.
3. During Capalbo's principalship of the high school, usually in
the early morning or lunchtime in the faculty room, before
others, Capalbo would say to Brown:
a. "I'd like five minutes in bed with you."
b. "I'd love to have your legs wrapped around me."
c. "I'd love to jump on your back."
d. "What did you do last night?"
e. "You look like you had a rough night."
4. 'In September 1979 when Brown was nursing her baby born the
previous April, Capalbo said to her:
a. "How come your tits are so big?"
b. "I'd like to have my head between your legs.".
c. "I'd love to have you on top."
5. In June 1980, while Brown was pregnant, Capalbo said:
a. "You should have an abortion."
b. "You couldn't afford to have a child."
6. These almost daily remarks by Capalbo adversely affected
Brown so that she felt degraded, humiliated and nauseated.
Sometimes Brown would try to ignore Capalbo's comments,

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sometimes she would try to retort with such remarks as "Shut
up," "Leave me alone," and "Knock it off." Oftentimes, she
was on the verge of tears.
7. In September 1979, at a faculty meeting, in response to a
question by Alice Kumanoff about Capalbo's student dis-
cipline policy, Capalbo responded, "Well, my discipline policy
depends upon a number of things. One thing, if the student
is female, how well she is built." In stating this, Capalbo made
a gesture to the breast area indicating that girls who are well
built would be treated differently than others.
8. During Capalbo's principalship, he would often physically
touch Brown, grabbing her leg, pulling up her skirt, patting
her on her behind, rubbing her back, and peeking down her
blouse. He would often nudge her neck.
9. Between September 1980 and Thanksgiving (November 1980),
Capalbo would make the following statements to Brown:
a. "Well, Brown, look at the shape of you."
b. "Well, now your husband can get on top."
c. "Do you now, Brown, get on top?"
d. "You should have had an abortion."
e. "Your husband is hunting for two-legged, not four-legged,
animals."
f. "What does your husband do, go in the back door?"
10. Before Brown left for the birth of her baby around Thanksgiv-
ing time 1980, Capalbo, who attempted to get a letter from her
indicating when she was going to take her maternity leave,
came into her classroom and said, "I don't'care if she drops
dead having the kid, I want the letter." Capalbo also stated,
"Here's Brown now, 37 and pregnant, she should have had an
abortion."
11. Prior to, during and after Capalbo's principalship, animal calls
and noises such as dogs barking, lamb noises and horse noises
would be made in the faculty room when female teachers
entered.
12. During the 1981-82 school year, after Capalbo had been trans-
ferred to another school, the following remarks were often
made by male faculty members in the faculty room, "Sexual
harassment," "Don't get near her," and "Don't touch me."
13. Mr. Murray, a faculty member, would sing the following lines
of a song, "I wish I were a toilet seat so my friends could shit
on me."

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14. Capalbo often boasted that he would one day be super-
intendent of schools. He was often seen walking through the
halls with the president of the Board of Education.
15. I FIND by a preponderance of the credible evidence that Brown
never initiated any remarks with Capalbo.
16. Diane H. Roberts began her employment in Keansburg High
School in September 1980.
17. During the 1980-81 school year, at the same lunch hour as
Brown, Capalbo said to her in front of others:
a. "You have to gain some weight, Ms. Roberts, you're too
thin."
b. "Men don't like thin women."
c. "How tall are you? You're too tall. Why do your wear
heels?"
d. "I'm going to have to take you out and fatten you up."
e. "Look, guys, new meat."
f. "If you had 20 or more pounds, you'd be my kind of
woman."
18. Capalbo would rub Roberts' shoulders and put his face next
to her check three to four times a week.
19. As an untenured teacher, Roberts was afraid and frightened
of Capalbo and what he might do to her.
20. Roberts heard Capalbo refer to Jane Pukstas as "plain Jane"
and Linda Petty as "Olive Oyl."
21. Roberts felt mortified and helpless with regard to Capalbo's
words, actions and conduct. She could not eat in the lunch-
room and wanted the ground to open up and swallow her.
22. During the 1981-82 school year, when Capalbo was no longer
principal at the high school, Roberts heard many animal noises
at faculty meetings and in the faculty room. As a result, she
stopped going to the faculty room for lunch. As she stated,
"You wouldn't get me there with a shotgun."
23. I FIND by a preponderance of the credible evidence that
Capalbo's remarks to Roberts, who is 5 feet 9 inches tall, are
offensive and sexual. Such remarks made Roberts feel self-
conscious. Such remarks by Capalbo evidence a bias on his
part that woman should be petite and dainty.
24. Henry Trzeszkowski, a teacher employed by the Keansburg
Board of Education, was present in the faculty room on many
occasions and heard Capalbo's statements to Brown.
25. Trzeszkowski heard Capalbo refer to Brown's husband as,

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"Jackass." At one time, he heard Capalbo say, "Jackass was
out screwing instead of hunting" and "You shouldn't believe
jackass."
26. Trzeszkowski recalls hearing animal noises during the 1981-82
school year when going to the faculty room in the morning.
He recalls such noises were made when women, not men,
entered the room and he specifically recalls James Kochman
making the sound of a horse, Robert Murray making the sound
of a sheep, and Robert Strickhart making the sound of a goat.
27. Capalbo often bragged to teachers that he had the President
and Vice president of the Board of Education in his "coat
pocket." Most teachers felt this was true, especially since
Capalbo was granted early tenure by the Board of Education
after being principal for only eight months.
28. Many teachers felt that the Board's failure to certify tenure
charges against Capalbo constituted a sanctioning of his behav-
ior.
29. Fran Ciuba, a teacher employed by Keansburg Board of
Education, heard Capalbo make the following remark in Sep-
tember 1979, "Ms. Brown had nice babies; we (Brown and
Capalbo) ought to get together and have babies--they would
be worth $200,000 on the black market."
30. Fran Ciuba felt embarrassed and degraded by Capalbo's re-
marks to Brown, made in her presence.
31. During the 1979-80 school year, Ciuba observed Capalbo grab-
bing Brown's leg, rubbing her shoulders, and patting her on
the rear end, which occurred almost daily.
32. When Virginia Grezner was interviewed for a position as a
Business Education teacher by Capalbo in July 1980, Capalbo
made the following remarks, "Here she is pregnant, I would
never sleep with an Italian girl, they are too emotional, they
have too many feelings. German girls are the kind of girls you
like to sleep with, they are cold and have no feelings." I FIND
that Grezner was Italian and Brown was German.
33. At the January 13, 1981 meeting, between Noe, Reynolds,
Grezner, Caruso, and Gallagher, wherein the women com-
plained about Capalbo's words, conduct and actions, they were
told to contact Nadya Thomas of the Department of Education
in Trenton.
34. I FIND by a preponderance of the credible evidence that non-

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meaningful investigation was conducted by the Board of
Education about Capalbo's behavior after the January 13, 1981
meeting.
35. I FIND by a preponderance of the credible evidence that the
Board of Education had knowledge, directly or imputedly, as
a result of the January 13, 1981 meeting.
36. I FIND by a preponderance of the credible evidence that no
grievance procedure was started against Capalbo, either under
the affirmative action program or pursuant to the collective
bargaining agreement between the teacher's association and the
Board. I further FIND that because of Capalbo's position, it
was unnecessary to commence any grievance procedure.
37. Judith Reynolds has been employed as a Home Economics
teacher for Keansburg Board of Education for 11 years.
38. At the January 13, 1981 meeting with Caruso and Gallagher,
she expressed her concern that sexual discrimination existed in
the school system. Caruso directed her to call Trenton.
39. During the 1977 school year, Reynolds was a chairperson for
her department. Since she was not certified as a supervisor
prior to August 3, 1979, she ceased to be a chairperson. Her
failure to be promoted to the position of chairperson was based
on her status and her failure to apply in writing for such
position, not because of Capalbo's sexual discrimination.
40. Reynolds felt intimidated by Capalbo and fearful of losing her
job. Because of Capalbo's position as Keansburg Teachers'
Association president, department chairperson and principal,
she viewed him as being a powerful person who could do her
some harm.
41. Reynolds heard Julia Childs imitations which she felt were
directed at her because she was a cooking teacher.
42. I FIND that Capalbo said to Reynolds, based on Capalbo's
own admission, "You have not tits."
43. Between August 15, 1979 and February 1981, Joseph C. Caruso
was Acting Superintendent of Schools. When Capalbo became
principal of the high school, there were two other principals
in the district, 1,000 students and 54 teachers.
44. During the 1979-80 school year, Caruso only went to the faculty
lunchroom three or four times. He relied on Capalbo to run
the high school.
45. I FIND by a preponderance of the credible evidence that

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Caruso and Board President Gallagher were informed on Janu-
ary 13, 1981 about derogatory remarks made by Capalbo and
about Capalbo's sexual harassment.
46. I FIND by a preponderance of the credible evidence that
Caruso took no meaningful steps to investigate those allega-
tions communicated to him by the Women on January 13, 1981.
47. On July 1, 1981, Capalbo was transferred from the principalship
of the high school to the principalship of the elementary school.
48. After Caruso and the Board received tenure charges against
Capalbo on or about December 3, 1981, no one conducted any
investigation as a result of such charges.
49. Capalbo admitted that he made those remarks against Brown
and Roberts to which they testified.
50. Capalbo admitted that he said and did what Brown testified
to at the September 1979 faculty meeting about student dis-
cipline policy.
51. I FIND by a preponderance of the credible evidence that
Capalbo did call male faculty members by nicknames he made
up, but these remarks had no sexual connotation.
52. I FIND that the conduct in the faculty cafeteria which involved
insults, boorish remarks, noises of animals such as wolves,
horses and sheep, were inappropriate and disgraceful.
53. I FIND that Capalbo lacks sensitivity and empathy and has
absolutely no regard for the feelings of certain female school
teachers in the district.
54. Although Capalbo considered his words, conduct and' actions
as merely friendly gestures, I FIND, based on a reasonable man
standard, them to be degrading, humiliating and boorish and
having no place in a school setting. Such words, actions and
conduct were done during school hours in front of others by
one in a position of actual and apparent authority.
55. Although several teachers testified that they heard what
Capalbo said to others and did not feel that his words, actions
or conduct was anything but mere joking and did not take him
seriously, I FIND, under a reasonable man standard, quite the
opposite.
56. I FIND that Capalbo stated to Brenda Coanshock, "What do
you know, you're a spic."
57. As testified to by Michael Lasko, all of the animal noises that
were made created an environment which seemed as if he were
in a zoo.

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58. I FIND by a preponderance of the credible evidence that no
remarks were made to male faculty members of a sexual nature
relating to any parts of their anatomy.
59. I FIND that what went on in the teachers' faculty room went
beyond the bounds of appropriateness and propriety.
60. I FIND that Board President Gallagher, who was present at
the January 13, 1981 meeting with Caruso, Noe, Grezner, and
Reynolds, stopped the women from explaining certain aspects
of the case. The woman were directed to contact Nadya
Thomas in Trenton.
61. I FIND that Gallagher informed his Board of Education some
time in January 1981 about the women coming to him and
Caruso on January 13, 1981 and that there might be litigation
in the future. The Board did nothing after receiving this infor-
mation.
62. I FIND that Gallagher, Board president, found out about
Capalbo's remarks about his student discipline policy being
based on the size of women's breasts shortly after Capalbo
made such remarks. Neither Gallagher nor the Board took any
meaningful or official action with regard to such remarks.
63. I FIND that Capalbo and the Board created and maintained
an atmosphere and environment which was tense and sexually
hostile and which fostered a polarization between the sexes.
CONCLUSIONS OF LAW
ARE THE WORDS, ACTIONS AND CONDUCT OF CAPALBO
PROTECTED UNDER THE FREEDOM OF SPEECH
PROVISIONS OF THE UNITED STATES CONSTITUTION AND
THE NEW JERSEY STATE CONSTITUTION
Samuel C. Capalbo argues that his conversations with Karen
Brown, Judith Reynolds and Diane H. Roberts, irrespective of
whether or not the content was favorably received by them, is
protected under the United States and New Jersey Constitutions.
Capalbo asserts that no matter how offensive his comments might
have been, his right to speak freely is protected. His words and actions
were merely expressions of private opinion and did not directly in-
ferfere with any legitimate governmental interest. Reasonable men
would conclude that Capalbo's remarks were offensive, crude and
coarse, even though some witnesses found them to be humorous and
merely horseplay.

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It is clear that public sector employees are now accorded first
amendment protection. Pickering v. Bd. of Ed., 391 U.S. 563 (1968);
Tinker v. Des Moines Independent Community School District, 393 U.S.
503 (1969); Mr. Healthy City School District v. Doyle, 429 U.S. 274
(1977); Givhan v. Western Line Consolidated School District, 439 U.S.
410 (1979); and Williams v. Civil Service Comm'n, 66 N.J. 152 (1974).
In Pickering, supra, a leading case in this area, the United States
Supreme Court upheld the right of a school teacher to write a letter-
to-the-editor to the local newspaper critical of his school's adminis-
tration. The Supreme Court held that teachers have a right to speak
on issues of public importance if their statements are not knowingly
false or made in reckless disregard for the truth. The Court clearly
affirmed, however, that a teacher's right was not absolute; rather as
the Court said at 568:
the State has interests as an employer in regulating the speech
of its employees that differs significantly from those it possesses
in connection with regulation of the speech of the citizenry in
general.
The role of a court:
?.. is to arrive at a balance between the interests of the teacher,
as a citizen, in commenting upon matters of public concern and
the interest of the State, as an employer in promoting the efficien-
cy of the public services it performs through its employees. Pick-
ering, supra, at 568.
In Mt. Healthy, supra, a school teacher was discharged for releasing
a school policy statement to a radio station and for making obscene
gestures to his students. The Court seemed to conclude that making
obscene gestures is not the type of "view" which courts will protect
in public employment settings. Thus, it is clear that conceptually them
is no difference between making obscene gestures and making harass-
ing sexual remarks to women. The social merit of either activity is
minuscule.
Several United States Courts of Appeal have carved out first
amendment exceptions for nonpublic interest speech of public sector
employees. In McGill v. Bd. of Ed., 602 F. 2d 774, 777 (7th Cir. 1979),
the court interpreted Pickering to mean that "if the speech does not
involve matters of public interest it may not be entitled to constitu-
tional protection." See also, Key v. Rutherford, 645 F. 2d 880, 884
(10th Cir. 1981). Certainly, sexual solicitations and harassing comments
do not even approach being a matter "of public interest." In the case

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of Bickle v. Burkhart, 632 F. 2d 1251, 1255 (5th Cir. 1980), the court
upheld a regulation prohibiting "malicious gossip." The court con-
strued the words "malicious" to apply "only to false statements made
with knowledge of their falsity or made with reckless disregard of
whether they are false or true." Bickle, supra, at 255. By the terms
of that case, gossip is something that can be either true or false. Sexual
solicitations and abusive remarks do not even rise to the low level
of being gossip. If a public agency can constitutionally proscribe false
gossip, it can prohibit sexually abusive remarks.
Under the facts and circumstances of the instant case, and without
repeating all of the remarks made by Capalbo, it is clear that his
remarks were not "views" within any ordinary understanding of that
term. Comments about the quality of a person's physiology are neither
"views" nor statements of matters of public Concern within the mean-
ing of Pickering. Had Capalbo, for example, inveighed vigorously
against the Equal Rights Amendment, perhaps I would have reached
another conclusion. However, the inescapable conclusion is that under
the existing law just enunciated, Capalbo's crude and boorish state-
ments were not protected speech within the meaning of the United
States or New Jersey Constitutions.
One other thing should be noted, namely, that Pickering set forth
a second test, to wit: requiring the balancing of
?.. the interest of the teacher, as a citizen... the interest of the
State as an employer, in promoting the efficiency of the public
services it performs... 391 U.S. at 568.
Activities that have "impeded the teacher's proper performance of his
daily duties in the classroom or to have interfered with the regular
operation of the school generally," Pickering, supra, at 572-73, are
to be balanced against the teacher's free speech rights, McGill, supra,
at 777; Hall v. Mayor of Pennsauken, 176 N.J. Super. 229, 232-33 (App.
Div. 1980).
The Appellate Division of the New Jersey Superior Court in Hall
set out the proper grounds to be weighed against the interest of the
employee,
the need to maintain discipline or harmony among co-workers
?.. to.limit conduct which impedes the public employee's proper
and competent performance of his duties, and ... the need to
encourage close and personal relationships between employees
and their superiors. Hall, supra, at 232.

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Clearly, any value to be found in protecting sexually harassing
verbiage, is outweighed by the harmful impact on the harmony of co-
worker relations, competent teaching and harmonious and decently
close relationship between management and labor.
Accordingly, I CONCLUDE that Capalbo's remarks did not deal
with public topics and,. therefore, does not fall within the scope of
the protection set forth under the United States and New Jersey
Constitutions. Furthermore, in employing a balancing of the interests
test, it is obvious that the deleterious impact of Capalbo's words,
conduct and actions outweighs whatever value the speech has.
DID THE WORDS, ACTIONS AND CONDUCT OF
CAPALBO AMOUNT TO THE CREATION AND
MAINTENANCE OF A SEXUALLY OFFENSIVE OR
HOSTILE WORK ENVIRONMENT
Respondent, Keansburg Board of Education, contends that clai-
mants failed to prove by a preponderance of the credible evidence
that Capalbo's words, actions and conduct were, in any way, at-
tributable to or would impose liability on the Board. Keansburg
suggests that it strongly disapproves of Capalbo's statements, of-
fensive language, gestures and negative attitudes, but insists that
neither under federal nor state law would this impose liability on the
Board. It is pointed out by Keansburg that claimants failed to show
that either Capalbo or the Board of Education willingly and inten-
tionally discriminated against them due to their sex. Capalbo also
argues that claimants' theory of liability against him is not supported
by any existing law.
First turning our attention to whether or not claimants' theory of
the case is recognizable under federal law, it is useful to examine Title
VII of the Federal Civil Rights Act of 1964 (42 U.S.C. ?2000e-I et
seq.) and the cases construing it. The language of the applicable
section of Title VII is almost identical to the language contained in
N.J.S.,4. 10:5-12a. 42 U.S.C. ?2000e-2(a) provides:
It shall be an unlawful employment practice for an employer--O)
to fail or refuse to hire or to discharge any individual, or to
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment
because of such individual's ... sex ...
In one of the early cases discussing the order and allocation of
proof, the Supreme Court in McDonnell Douglas Corp. v. Green, 411

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U.S. 792 (1973) set forth a standard for establishing a prima facie case,
at 802:
The complainant in a Title VII trial must carry the initial burden
under the statute of establishing a prima facie case of racial
discrimination. This may be done by showing: (i) that he belongs
to a racial minority; (ii) that he applied and was qualified for
a job for which the employer was seeking applicants; (iii) that
despite his qualifications, he was rejected; and (iv) that, after his
rejection, the position remained open and the employer continued
to seek applicants from persons of complainant's qualifications.
Our Supreme Court in New Jersey has not only firmly indicated
that the McDonnell Douglas test would be applied in New Jersey, but
also would be utilized in other forms of employment discrimination,
such as discrimination against females on the basis of sex. Peper v.
Princeton Univ. Bd. of Trustees, 77 N.J. 55 (1978) and Andersen v.
Exxon Co., 89 N.J. 483 (1982).
In the watershed case of Miller v. Bank of America, 600 F. 2d 211
(9th Cir. 1979), the Court of Appeals for the Ninth Circuit found an
employer to be liable for a Title VII violation under the respondeat
superior theory for a supervisor's sexual advances on a female em-
ployee. The court did not place on the plaintiff any requirement to
show that the employer knew or should have known of the super?
visor's'unseemly activities; rather, the doctrine of respondeat superior
applied when the action is that of a "supervisor, authorized to hire,
fire, discipline or promote or at least to participate in or recommend
such actions..." Id at 213. Liability was imposed on the employer
even when the supervisor acted contrary to company policy. The
Court of Appeals premised its conclusion on a holding that Title VII
wrongs were tortuous and that the usual tort rule of respondeat
superior was applicable. Allowing employers with an anti-sex dis-
crimination policy to escape liability would be "an enormous
loophole," the court opined. Ibid.
The Miller case has been interpreted to render an employer strictly
liable for a supervisor's harassment. Editorial, "Sexual Harassment
in the Work Place," 106 N.J.L.J. 488 (1980); Significant Development,
New EEOC Guidelines on Discrimination Because of Sex: Employer
Liability for Sexual Harassment under Title VII, 61 B.U.L. Rev. 535,
551-52 (1981).
In the more recent case of Henson v. City of Dundee, 682 F. 2d 897
(11th Cir. 1982), the Court of Appeals firmly held:

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?.. that an employer is strictly liable for the actions of its super-
visors that amount to sexual discrimination or sexual harassment
resulting in tangible job detriment to the subordinate employee.
ld. at 910.
In Henson, the Court of Appeals found that a female police dis-
patcher had been refused an opportunity to attend the Police Academy
because she had refused to have sexual relations with the chief of the
police department. The court held that such personal advances would
violate Title VII, Id, at 908. The Henson case is noteworthy in that
it broke new ground with respect to the issue of the employer's
knowledge when a supervisor made sexual advances on a subordinate.
In reaching the conclusion that the employer was strictly liable for
such sexual advances irrespective of whether the employer was aware
of them if the employee suffered tangible job detriment, Henson, supra,
at 909-10, the court relied in part on the common law theory that since
the supervisor acts within the scope of his apparent authority, his
conduct should be imputed to the employer who gave him that
authority, Id, at 910. The court also looked to new guidelines of the
Equal Employment Opportunity Commission (EEOC) found at 29
C.F.R. ?1604.11(a); 682 F. 2d at 910.
Thus, under Henson and Miller, the employer is liable for a super-
visor's harassment even without knowledge of it. The EEOC regu-
lations reflect the Henson and Miller approach, placing strict liability
on an employer for harassment of a subordinate by a supervisor,
irrespective of the employer's state of mind. See, 29 C.F.R. ?1604.11(c).
This section states that the employer is liable without reference to
whether
?.. the specific acts complained of were authorized or even for-
bidden by the employer and regardless of whether the employer
knew or should have known of their occurrence. Ibid.
In a recent leading case of Bundy v. Jackson, 641 F. 2d 934 (D.C.
Cir. 1981), a supervisor constantly asked a subordinate to have sexual
relations with him. She refused. Although there was evidence that the
supervisor gave the employee the impression that he was impeding
her job advancement because of the lack of a sexual relationship, Id,
at 940, the United States Court of Appeals for the District of Col-
umbia Circuit specifically held that there was no need for tangible
job detriment for these circumstances to be actionable under Title VII,
Id, at 943-47. The court did not find that this was the type of situation
in which the supervisor demands sexual favors for a job benefit; on

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the contrary, it was the creation of "a substantially discriminatory
work environment" at 943. The fact that "the complaining employees
lost any tangible job benefits..." was not crucial in making a Title
VII case under the circumstances, ld, at 943-44. In reaching this result,
the Bundy opinion appears to equate the words "employer" with
"supervisor." ld., at 945-46. Bundy indicates that being subjected to
a sexually abusive work environment is an intangible job detriment.
In Henson, supra, the court established that a Title VII plaintiff must
allege and prove five basic elements to prove a sexually discriminatory
work environment suit:
1. He belongs to a protective group.
2. He was subject to unwelcome sexual harassment.
3. The harassment complained of was based upon sex.
4. The harassment complained of affected a term, condition or
privilege of employment.
5. The employer is liable under respondeat superior.
With regard to the last part of these tests, the court indicated that
the plaintiff "must show that the employer knew or should have
known of the harassment in question and failed to take prompt
remedial action," Henson, at 905.
The Bundy court and the Henson majority both cited the EEOC
regulations approvingly and in Bundy, the Court of Appeals held that
the regulations
?.. reaffirmed that an employer is responsible for discriminatory
acts of its agents and supervisory employees with respect to sexual
harassment just as with other forms of discrimination, regardless
of whether the employer authorized or knew or even should have
known of the acts ... 29 C.F.R. ?1604.11(d). Bundy, at 947
It is clear in the instant case that complainants met their burden
of proof as set forth in Henson. There is no doubt that Capalbo's
words, actions and conduct constituted the creation and maintenance
of a sexually offensive or hostile work environment. Such statements
by Capalbo to Brown as:
"I'd like to put my face between your legs."
"I want to jump on your back."
"Wrap your legs around me."
"Does your husband go in the back door now."
"Your tits are big today."
are sexually demeaning, vulgar, boorish, abusive, and intolerable. The
words, actions and conduct to the female complainants were of a

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different nature than those to other males whom Capalbo "busted."
Capalbo would call male teachers by their nicknames, such as "Curr,"
"You look like a scarecrow," "Happy," "Scarneck." These remarks
were not of a sexual nature. All of Capalbo's remarks were made
during the work day, on school premises and in public. They went
on for many years, including the years 1979-80 and 1980-81. Such
remarks were also accompanied by uninvited, unpermitted touchings.
None of Capalbo's behavior involved isolated or rare occurrences.
'Although I have no testimony before me that Capalbo was seeking
any quidpro quo from the complainants, i.e., that unless they engaged
in some sexual activities with him, there would be a job detriment,
Bundy, Henson and the EEOC regulations no longer appear to require
that. This is a more reasoned and modern approach; and I, also,
conclude that there is no requirement of a quid pro quo. Capalbo's
actions, words and conduct are clearly actionable under Title VII.
IS THE THEORY OF SEXUALLY OFFENSIVE OR HOSTILE
WORK ENVIRONMENT EMBRACED BY THE NEW JERSEY
LAW AGAINST DISCRIMINATION (N.J.S.A. 10:5-1 ET SEQ.)
The New Jersey law against discrimination, N.J.S.A 10:5-12, states:
It shall be an unlawful employment practice, or, as the case may
be, an unlawful discrimination: a) for an employer, because of
the sex of any indvidual to refuse to hire or employ to bar or
to discharge from employment such individual or to discriminate
against such individual in compensation or in terms, conditions
or privileges of employment; . . . (emphasis added)
Our courts in New Jersey have repeatedly pointed out that the law
against discrimination is to be liberally and broadldy construed in the
manner sympathetic to its preeminent salutory purpose. Andersen v.
Exxon Co., 89 N.J. 483, 495 (1982); Passaic Daily News v. Blair, 63
N.J. 474, 484 (1973); Zahorian v. Russell Fit Real Estate Agency, 62
N.J. 399, 409 (1973); and Levitt & Sons, Inc. v. Division Against
Discrimination, 31 N.J. 514, 524 (1960). Certainly, it is most helpful
to this tribunal to have the benefit of the decisions of the federal courts
interpreting Title VII of the Federal Civil Rights Act of 1964 which
is practically identical in language to the above cited New Jersey
statute. Our courts in New Jersey have repeatedly looked to federal
law, especially federal law construing Title VII in deciding New Jersey
discrimination cases under our own statute. See, Peper, supra, which
adopted the shifting burden of proof test of McDonell Douglas and

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Terry v. Mercer County Board of Freeholders, 86 N.J. 141 (1981) which
utilized federal court decisions under Title VII in dete. rmining the
scope of the remedial powers available under the law against dis-
crimination. Additionally, our courts in New Jersey have looked to
courts of sister states in interpreting our own law against discrimina-
tion. See, Andersen v. Exxon Co., supra.
Even though both respondents strenuously argue that N.J.S.A. 10:5-
12(a) does not embrace the concept of hostile work environment as
found by the courts in Henson and Bundy, this position is shortsighted,
narrow and without merit, and I reject it.
Accordingly, for those reasons just enunciated and also for those
reasons set forth in the previous heading, I CONCLUDE that
Capalbo's actions, words and conduct are actionable under N.J.S.A.
10:5-12(a).
IS THE KEANSBURG BOARD OF EDUCATION LIABLE
UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION
FOR THE WORDS, ACTIONS AND CONDUCT OF CAPALBO?
Capalbo argues that he is not an "employer" under the New Jersey
law against discrimination, N.J.S.A. 10:5-12(a) and, therefore, is not
individually liable. Keansburg also argues that Capalbo was not an
employer under the statute, but was merely a fellow employee in a
supervisory position which neither impose liability on Capalbo nor
on the Board. In other words, his verbal expressions, actions and
conduct were merely those of a co-worker. I disagree.
Capalbo was not a co-worker with Brown, Reynolds and Roberts.
He was in a position of power. This is clear from the testimony before
me. It was not merely apparent power but actual power. He received
tenure as a principal at the high school in less than one year. He was
constantly seen walking around the school with members of the Board
of Education. Articles appeared in the local newspaper forecasting his
becoming the next superintendent of schools. Capalbo's political
power with the Board of Education was also apparent, not only
because of his acquiring tenure early, but also when the Board failed
to vote to certify tenure charges to the Commissioner in January 1982.
Although it is true that the Board of Education is legally the entity
to hire and fi're, and to withhold increments, clearly, Capalbo as
principal would be intimately involved in such decisions and would
have an obligation to make recommendations. Certainly, if a teacher
under him were engaging in improper conduct, Capalbo would be

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obligated to make recommendations to the Board with regard to
tenure charges. More than likely, he would be involved in making
a statement of evidence under oath. Additionally, Capalbo would be
involved in making a recommendation to deny a teacher an increment.
He might also be involved in recommending the transfer of a teacher
as well as involved in processing and recommending teachers for the
position of chairperson of a department.
As a supervisor, Capalbo's words, actions and conduct would im-
pose liability on the Board based on either a concept of respondeat
superior or strict liability. See Miller, supra, and Henson, supra. This
liability is imposed irrespective of whether any complainants suffered
tangible job detriment or whether the Board had knowledge of
Capalbo's words, actions or conduct. The Board is liable whether or
not they authorized Capalbo to perform such words, actions and
conduct and even whether he did so in violation of a Board policy.
Being subjected to a sexually abusive work environment is an in-
tangible job detriment. See, Bundy, supra. The more modern and
reasonable approach, which I hereby adopt, is that an employer is
responsible for the discriminatory acts of its agents and supervisory
employees with respect to sexual harassment just as with other forms
of discrimination, regardless of whether the employer authorized or
knew or even should have known of the acts.
However, I CONCLUDE' that the Board did know of the words,
actions and conduct of Capalbo. Board President Gallagher knew of
Capalbo's statement about the student disciplinary policy being re-
lated to the size of woman's breasts immediately after that occurrence
in September 1979 and additionally, and significantly, obtained certain
information about the words, actions and conduct of Capalbo at the
meeting which occurred on January 13, 1981 wherein Caruso and
Gallagher were present with three teachers, namely, Noe, Grezner and
Reynolds. Gallagher was not only Board president at the time but
was also acting Board secretary. When both gentlemen received the
information on January 13, 1981, Gallagher indicated that he was going
to leave the meeting because he might have to vote as a Board member
later on if tenure charges were preferred against Capalbo. Caruso, who
was also the district's affirmative action officer, advised the women
to call Nadya Thomas at the Department of Education in Trenton
to find out what further action they should take. Caruso testified that
he did speak to some teachers but could get nothing in writing from
any of them. Thus, the Board of Education knew early on, and from
several sources that Capalbo was engaged in allegedly improper con-

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duct. The Board took no action based on such information. Most
shockingly, the Board, in January 1982, failed to certify tenure charges
to the Commissioner of Education based on Capalbo's actions. This
was, in my mind, clearly a political action by the Board and an
apparent condonation of Capalbo's improper actions. The Board, in
my opinion, based on what. was presented to it in December 1981,
should have certified tenure charges to the Commissioner. At the very
least, the Board should have engaged in a full and complete investiga-
tion of the Capalbo matter.
Apropos, I CONCLUDE that the Board is liable for Capalbo's
words, actions and conduct under the following theories:
1. Strict liability.
2. Respondeat superior.
3. The Board had actual knowledge.
4. Capalbo, as a supervisor, performed services in the nature of
an employer under the act.
IS CAPALBO AN "EMPLOYER" WITHIN THE TERMS
OF THE NEW JERSEY LAW AGAINST DISCRIMINATION?
Although both respondents argue that Capalbo is not an employer
within the meaning of N.J.S.A. 10:5-12a which states that it shall be
unlawful employment practice or "... an unlawful discrimination: for
an employer .... "Respondents argue that Capalbo is merely a co-
worker whose words, actions and conduct would not impose liability
either on himself or on the Board under the New Jersey statute. Thus,
Capalbo would be beyond the reach of the Division on Civil Rights.
I CONCLUDE that the better and more reasoned approach under
the circumstances of the instant case is that Capalbo, as "supervisor,"
is an employer for purposes of N.J.S.A. 10:5-12(a). Capalbo is not
merely a "co-worker" since as principal, he has rights and
responsibilities which have heretofore been set forth. Thus, the rel-
evant distinction is whether the discriminator was a supervisor or a
nonsupervisory co-worker. See Miller, supra. The actions of Capalbo
as supervisor-employer impose liability on the Board without anything
more being required. Even though I found and conclude that the
Board did have notice of Capalbo's actions, notice would not be a
requirement in this case since I have concluded that Capalbo was a
supervisor-employer. It would be unfair and unjust to permit the
Board, under the existing circumstances, to avoid liability.

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SHOULD COMPLAINANTS' MOTION TO AMEND THE
COMPLAINT TO INCLUDE A VIOLATION OF
N.J.S.A 10:5-12e BE GRANTED?
Complainants' counsel moved at the conclusion of the hearing to
amend the complaint to allege that Capalbo violated N.J.S.A. 10:5-
12e, which respondents' attorneys vigorously opposed.
It is clear that under our own rules, a pleading may be amended
at any time, even after presentation of proofs. N.J.A.C 1:1-6.3 states:
The first pleading may be amended at any time, either before or
after the presentation of proofs when, in the judge's discretion,
an amendment neither imposes an unreasonable burden nor is
precluded by statute or constitutional principle.
In exercising my discretion, I CONCLUDE that it is in the interest
of fairness and justice to grant complainants' motion to amend the
complaints. Accordingly, the motion is GRANTED.
N.J.S.A. 10:5-12e states:
For any person, whether an employer or employee or not, to aid,
abet, incite, compel, or coerce the doing of any of the acts
forbidden under this act, or to attempt to do so.
Pursuant to N.J.S.A. 10:5-5e, employer is defined as follows:
'Employer' includes all persons as defined in subsection a of this
section unless otherwise specifically exempt under another section
of this act, and include the State, any political or subdivision
thereof, and all public officers, agencies, boards or bodies.
Section (a) of N.J.S.A. 10:5-5 states:
'Person' includes one or more individuals, partnerships, associa-
tions, oiganizations, labor organizations, corporations, legal rep-
resentatives, trustees, trustees in bankruptcy, receivers, and
fiduciaries.
It is absolutely clear that under the definition section of the statute,
an employer could be a person who is defined as being an individual.
It is axiomatic that Capalbo would fall squarely within either N.J.S.A.
10:5-12a or 10:5-12e.
WHAT STANDARD SHOULD BE USED IN DETERMINING
WHETHER CAPALBO'S WORDS, ACTIONS OR CONDUCT
ARE ACTIONABLE UNDER THE NEW JERSEY LAW
AGAINST DISCRIMINATION?
A threshold question for me to answer is whether or not I look
at the sensibilities of complainants, look at the sensibilities of other

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teachers who are not offended by Capalbo's words, actions or con-
duct, look at my own reaction to Capalbo's conduct, or do I use some
other standard.
Many teachers were offended and outraged by Capalbo's words,
actions and conduct while many other teachers thought Capalbo was
merely engaging in horseplay and this was merely an idiosyncratic part
of his personality. The latter teachers would argue that Capalbo meant
nothing by this and they all claimed they did not take him seriously
nor would anything that he said ever offend them.
It is clear to me that I must look not at the state of mind of the
recipients of the words, actions or conduct, but the objective con-
ditions which existed. In other words, the standard which should be
utilized is an objective one, not a subjective one.
Even though courts in New Jersey and the Third Circuit have not
ruled on this issue, the test utilized in the Title VII decisions is an
objective one. In Alicea Rosado v. Garcia Santiago, 562 F. 2d 114, 119
(lst Cir. 1977), the court stated:
the trier of fact must be satisfied that the... working conditions
would have been so difficult or unpleasant that a reasonable
person in the employee's shoes would have felt compelled to
resign.
Accord, Borque v. Powell Electrical Manufacturing Co., 617 F. 2d
61 (5th Cir. 1980); Junior v. Texaco, Inc., 688 F. 2d 377 (5th Cir. 1982).
In scrutinizing the working conditions which existed at Keansburg
High School between the school years 1979-80 and 1980-81, it is clear
from an objective standpoint that these conditions were harsh. There
existed an abusive and hostile work environment where several
teachers feared going into the faculty room alone or feared going in
at all, women huddled together at separate tables during lunch fearing
that Capalbo would turn his insults and abuse on them, and the entire
atmosphere in the school, to say the least, was difficult and un-
pleasant. Certainly, it would not have been unreasonable for any of
the complainants to have resigned, as Carol Noe testified she did, in
response to the working conditions which existed. Of course, the
victimized complainants need not actually leave the job before having
an action under the New Jersey law against discrimination. See,
Bundy, supra, 641 F. 2d at 943-947. As stated before, the sexually
oppressive work environment itself is an intangible job detriment.
To summarize, then, the appropriate standard to be used is not a
subjective one but rather an objective standard focusing on whether
the working conditions were difficult or unpleasant.

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DID RESPONDENTS VIOLATE THE NEW JERSEY LAW
AGAINST DISCRIMINATION BY DENYING REYNOLDS A
PROMOTIONAL OPPORTUNITY?
Prior to the 1979-80 school year, Reynolds was a department chair-
person. Because of new State requirements, that position as well as
all other department chairs were vacant. According to the testimony,
Reynolds was in the process of getting proper credits and then
certification to enable her to meet the new State requirements.
Although there was testimony from Reynolds that she approached
Capalbo and requested that she be recommended to be department
chairperson but was denied it because she was a woman, it is also
clear from all of the evidence that Reynolds took no other steps, such
as applying in writing, to obtain that position. Capalbo denied that
he ever said to Reynolds that he was denying her a department
chairperson position because she was a woman. It is interesting to
note that Capalbo admitted to almost all of the other inappropriate
language that he used during the period of time in question.
Although I find that Capalbo did engage in much activity which
was inappropriate, improper and sexist, I do not conclude that Re-
ynolds was' deprived of a promotional opportunity in violation of the
New Jersey law against discrimination.
Accordingly, her claim of being denied a chairperson position be-
cause of discrimination under the New Jersey law against discrimina-
tion is DISMISSED.
WHAT RELIEF ARE COMPLAINANTS ENTITLED TO?
Damages, in civil rights proceedings, have been routinely granted
by administrative agencies. In Andersen v. Exxon Co., 89 N.J. 483,
502-503 (1982), an award of $500 damages, awarded by an adminis-
trative law judge, for emotional distress was upheld in an action
charging employment discrimination against a physically handicapped
plaintiff. Also, in Zahorian v. Russell Fitt Real Estate Agency, 62 N.J.
399, 416 (1973), it was held that the Director of the Division on Civil
Rights acted fairly within the orbit of legislative delegation when he
awarded complainant a compensatory sum for pain and suffering to
which he had been subjected by reason of having been denied an
opportunity of renting a listed apartment solely because of her sex
and marital status.
In the instant case, there is no evidence before me that there was
any out-of- pocket loss to any of the complainants, such as economic

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loss or money expended for doctors. Thus, the only damages that I
can consider under all the circumstances, would be an award of
damages for humiliation, emotional distress, pain and suffering. It is
clear that the words, actions and conduct of Capalbo and, thus, the
Board were inappropriate, degrading and sexually abusive. Such con-
duct must never be allowed to occur in a public school setting. The
nature of the insults to complainants dictate that some amount of
money be awarded to them for the pain, suffering and humiliation
caused by respondents' disciminatory aqtions.
Apropos, based on the constant and degrading remarks made by
Capalbo, and, thus, by the Board, to complainant, Karen Brown, I
CONCLUDE that she should receive damages in the amount of $2,500
from respondents, .jointly and severally.
Based on all of the facts and circumstances concerning Diane H.
Roberts, I CONCLUDE that damages be awarded in the amount of
$1,000, to be assessed against respondents jointly and severally.
With regard to complainant, Judith Reynolds, based on all of the
existing facts and circumstances, I CONCLUDE that damages be
awarded in the amount of $500, to be assessed against respondents
jointly and severally.
IS COUNSEL FOR COMPLAINANTS ENTITLEI71'O
REASONABLE ATTORNEY'S FEES UNDER THE FACTS
AND CIRCUMSTANCES OF THE WITHIN CASE?
In New Jersey, recovery of attorney's fees is not normally allowed
absent a specific statute or court rule authorizing them. As stated in
R. 4:42-9:
(a)... No fee for legal services shall be allowed in the taxed costs
or otherwise, except ... (8) In all cases where counsel fees are
permitted by statute.
The law against discrimination, N.J.S.A. 10:5-27.1, provides that:
In any action or proceeding brought under this act, the prevailing
party may be awarded a reasonable attorney's fee as part of the
cost, provided however, that no attorney's fee shall be awarded
to the respondent unless there is a determination that the charge
was brought in bad faith.
The New Jersey statute parallels federal legislation, i.e., 42 U.S.C.
{}1988 and 42 U.S.C. ?2000e-5(k).
Firstly, I would like to address the argument of respondents that

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complainants' attorney should not be awarded any attorney's fees
because his fees are paid for by the New Jersey Education Association.
I do not find respondents' argument in any way persuasive. Counsel's
relationship with the NJEA should not prevent him, as a prevailing
party, from receiving an award of counsel fees. Apropos, I CON-
CLUDE that the relationship between counsel and the NJEA is not
a factor which would prevent him from being awarded counsel fees.
However, ! direct that out of any payment of counsel fees awarded
in this case, the NJEA be reimbursed for that amount of money
heretofore paid to counsel so that counsel does not receive a double
payment of attorney's fees.
I have very carefully considered the affidavit submitted by Mr.
Nowak as well as the memorandum of law setting forth the method
of calculating attorney's fees. Clearly, what constitutes a reasonable
attorney's fee in a particular case rests with the sound discretion of
the trial court. Lund v. Affieck, 587 F. 2d 75, 78 (lst Cir. 1978). Courts
take into account such factors as:
1. the time and labor required;
2. the novelty and difficulty of the question presented;
3. the skill required to perform the legal services;
4. the preclusion of other employment by the attorney due to
acceptance of the case;
5. the customary fee;
6. whether the fee is fixed or contingent;
7. time limitations imposed by the client or circumstances;
8. the amount involved and the results obtained;
9. the experience, reputation and ability of the attorney;
10. the undesirability of the case;
11. the nature and length of the professional relationship with the
client; and
12. awards in similar cases.
See, Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir.
1974).
The proper starting point for calculating the amount of fees due
is arriving at a "lodestar" figure, i.e., simply the hours reasonably
necessary to the prosecution of the successful claim times a reasonable
hourly rate. See, Foster v. Gloucester County Board of Chosen Free-
holders, 1465 F. Supp. 293, 298 (D.N.J. 1978). The minimum award
should generally not be less than the number of hours claimed times
an attorney's hourly rate. Zoll v. Eastern Allamakee Community School
District, 588 F. 2d 246, 252 (8th Cir. 1978). Applying this initial theory

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to the instant case, I FIND and CONCLUDE that a normal hourly
rate charged by attorneys of like skill for similar work in the geo-
graphic area is s10e an hour. Multiplying that dollar amount by 131.8
hours, I come up with a "1odestar" figure of $13,180. To this, I add
an additional 59.40 hours from January 10, 1983 to March 31, 1983,
at s10e per hour or a total of $5,940. Adding the two sums together,
I get a total "lodestar" figure of $19,120. I am satisfied that that
amount is reasonable under all the circumstances. See, Lund, supra.
Next, I must determine whether to increase or decrease that
"lodestar" amount based on a variety of factors such as the risk and
complexity of litigation and the quality of representation. See, Ross
v. Salt Marsh, 521 F. Supp. 753, 770 (D.N.Y. 1981) aff'd 688 F. 2d
816 (2nd Cir. 1982). It is important that I scrutinize the attorney's fees
seeking to avoid either the reality or appearance of awarding a wind-
fall fee. Id, at 772.
Although the issues raised in this case are novel and of first im-
pression, requiring all counsel to engage in diligent research, the
presentation of the trial of this matter was not complicated. The
witnesses and evidence at trial were straightforward and many of the
witnesses' testimony was cumulative. The novelty of the legal ques-
tions and the extensive research required on them does not, in my
judgment, warrant an adjustment upward of the "lodestar" figure.
This is in no way a criticism of the fine work performed by Mr.
Nowak. However, under all the circumstances and looking at the
amount of damages awarded complainants, I CONCLUDE that I
shall not adjust the "lodestar" figure further.
Accordingly, I hereby CONCLUDE and ORDER that attorney's
fees for all three consolidated cases in the amount of $19,120 be
awarded to counsel for complainants and against respondents jointly
and severally. This award of attorney's fees shall cover the period up
to and inclusive of March 31, 1983.
The respondent, Keansburg Board of Education, and respondent,
Samuel C. Capalbo, are ordered to cease and desist all activities in
connection with the creation and maintenance of a sexually offensive
or hostile work environment.
Additionally, I ORDER that a copy of this initial decision be
submitted to the Commissioner of Education to take whatever action
he deems appropriate under the existing circumstances.
After reviewing this Initial Decision, the Division on Civil
Rights on July 28, 1983, issued the following Final Decision:

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WHEREAS, Diane Roberts, Judith Reynolds and Karen Brown
(complainants) filed Verified Complaints with the Division on Civil
Rights on or about November 14, 1981 alleging that Keansburg Board
of Education and Samuel Capalbo (respondents) violated their rights
under the New Jersey Law Against Discrimination, N.J.S.A.
10:5-12(a) and N.J.S.A. 10:5-12(e), because of their sex. The complai-
nants charged that respondent Capalbo created a sexually hostile,
intimidating, humiliating and offensive work environment and respon-
dent Keansburg Board of Education (Board) either permitted or con-
doned such alleged acts of discrimination, because of their sex; and
WHEREAS, on January 14, 1982, the respondents in answer to the
complaints denied the allegations. Respondent Capalbo, inter alia,
denied creating a hostile or intimidating or humiliating work environ-
ment. Respondent Board denied any direct knowledge of any allega-
tions contained in complainant's papers as no grievance of any allega-
tions were brought to the Board of Education Level; and
Having given careful and independent consideration to the entire
record in these matters, I substantially concur in the decision rec-
ommended by Judge Glickman and hereby adopt it as my findings
of fact and conclusions of law with several modifications, as set forth
hereafter. I hereby adopt the ALJ's factual findings, I through 63.
N.J.S.A. 10:5-12(a), in pertinent part, declares it to be an
unlawful employment practice ... for an employer, because of
the ... sex of any individual ... to discriminate against such
individual in compensation or in terms, conditions or privileges
of employment ....
The present complaint alleges that Samuel Capalbo, building school
Principal of Keansburg High School at the relevant times, and the
Keansburg Board of Education, violated the foregoing sections of the
statute by maintaining or tolerating the existence of, an offensive,
hostile working environment which caused embarrassment, humili-
ation and suffering to the complainants. More particularly, complai-
nants alleged that because of their gender they were subjected to verbal
and physical treatment by Capalbo of a sort that men were not
subjected to as a result of which they suffered humiliation and em-
barassment.
At the outset of the analysis it should be noted that the present
case asserts a claim of disparate treatment. See, Peper v. Princeton
University Boardof Trustees, 77 N.J. 56, 81 (1978). The burden is upon
the complaining party in such a case to demonstrate by a

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preponderance of the evidence that the respondent treated the com-
plainant "less favorably than others because of... Race, color, re-
ligion, sex, or national origin." Ibid. The complainant must show
intentional, adverse, and differential treatment.
As reflected in the findings of fact of the administrative law judge,
it is uncontroverted that respondent Capalbo utilized derogatory and
demeaning comments towards teachers and staff members of both
genders as a supervisory technique of his administration. Notwith-
standing this, it is clear from the record which I have reviewed inde-
pendently, and as the findings of fact made by the administrative law
judge, which I have adopted, indicate, that respondent Capalbo dif-
ferentiated in his comments on the basis of the gender of the individ-
uals who were the recipients of those comments. In short, Capalbo
spoke to women in a different way then he spoke to men. True, he
used demeaning language with both males and females, but his com-
ments to females were of a qualitatively different type then were his
comments to males. See findings of facts numbers 51, 58 and 63. The
complainants have met their burden of proof in this matter. The have
demonstrated intentional, adverse, differential treatment on the basis
of gender in the form of hostile, demeaning and intimidating com-
ments and unwanted physical contacts directed at them by respondent
Capalbo. Respondents have not justified such adverse treatment.
Both respondents, however, have raised a number of legal objec-
tions to the initial decision rendered in this matter. Both respondents
contend that such allegations of differential adverse working environ-
ment do not state a cause of action under N.J.S.A. 10:5-12(a), absent
a showing of pecuniary loss or tangible job detriment. Both contend
that the maintenance merely of a hostile and intimidating work en-
vironment which adversely affects one gender only is not unlawful
under the New Jersey Law Against Discrimination. Having considered
the wording of the statute, and having taken note of federal law which
deals with this question, and in keeping with the tradition of liberal
interpretation of this statute, I am left with no doubt that respondents'
position is wrong and must be rejected.
No reported decisions in this state have had occasion to deal with
this issue. The starting point of this inquiry, then, is the text of the
statute itself, and the critical question is, does the phrase "terms and
conditions of of employment," as it appear therein, encompass the
hostile and offensive working environment as alleged in the underlying
complaints. It seems self evident, as a simple matter of definition, that
if a teacher is subjected to verbal and physical harassment by a

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principal of a school during working hours, such treatment is a con-
dition of employment. The acceptance by the subordinate of the
working environment maintained by the principal is as much a con-
dition of employment as is the acceptance of particular classroom
assignment, or the curriculum content required to be taught.
Analogously, if the quality of the teaching materials that are sup-
plied to an individual by a school administration varies intentionally
with the religion, race, national origin or gender of the teacher, that
clearly constitutes discrimination in conditions of employment, and
a violation of the Law Against Discrimination, section 12(a).
The federal courts have also had occasion to consider the very
question under review here, in the context of Title VII of the Federal
Civil Rights Act of 1964. In Bundy v. Jackson, 641 F.2d 934 (D.C.
Cir. 1981) a woman who had been subjected to unwanted and in-
timidating sexual overtures by fellow workers and supervisors, but
who had suffered no tangible loss of benefit of employment, never-
theless, was held to state a claim under Title VII. That opinion is very
instructive in the present case, for there the injury alleged by complai-
nant was confined to the anxiety, debilitation and emotional harm
resulting from the encounters to which she was subjected.
Henson v. City of Dundee, 682 F. 2d 897 (1 lth Cir. 1982) presents
a situation very similar to the present case, as well. There the claimant
alleged that her work environment was sexually demeaning because
of her supervisor subjected her to crude and vulgar language and
offensive inquiries. The claimant resigned to escape those conditions.
The Court of Appeals, following Bundy v. Jackson, supra, declared
that the complainant stated a claim under Title VII.
Our courts in New Jersey have repeatedly pointed out that the Law
Against Discrimination is to be liberally and broadly construed in a
manner sympathetic to its preeminent salutory purpose. Anderson v.
Exxon Co., 89 N.J. 483, 495 (1982); Passaic Daily News v. Blair, 63
N.J. 474, 484 (1973); Zahorian v. Russell Fit Real Estate Agency, 62
N.J. 399, 409 (1973); and Levitt & Sons, Inc. v. Division Against
Discrimination, 31 N.J. 514, 524 (1960). Certainly, it is most helpful
to this tribunal to have the benefit of the decisions of the federal courts
interpreting Title VII of the Federal Civil Rights Act of 1964 which
is practically identical in language to the above cited New Jersey
statute. Our courts in New Jersey have repeatedly looked to federal
law, especially federal law constituting Title VII, in deciding New
Jersey discrimination cases under our own statute. See, Peper, supra,
which adopted the shifting burden of proof test of McDonnel Douglas

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and Terry v. Mercer County Board of Freeholders, 86 N.J. 141 (1981)
which utilized federal court decisions under Title VII in determining
the scope of the remedial powers available under the Law Against
Discrimination.
The recognition of the unlawfulness under the Law Against Dis-
crimination of a hostile and intimidating work environment imposed
on one gender only is not a concept, but rather a variation on an
old theme. As noted in the Henson, supra, at 902:
Sexual harassment which creates a hostile or offensive environ-
ment for members of one sex is every bit the arbitrary barrier
to sexual equality at the workplace that racial harassment is to
racial equality. Surely, a requirement that a man or woman run
a gauntlet of sexual abuse in return for the privilege of being
allowed to work and make a living can be as demeaning and
disconcerting as the harshest of racial epithets. A pattern of
sexual harassment inflicted upon an employee because of her sex
is a pattern of behavior that inflicts disparate treatment upon a
member of one sex with respect to terms, conditions or privileges
of employment. There is no requirement that an employee sub-
jected to such disparate treatment prove in addition that she has
suffered tangible .job detriment.
Because the text of the statute clearly prohibits it, because the Civil
Rights Act, Title VII, prohibits it, and because this state "has always
been in the vanguard in the flight to eradicate the cancer of unlawful
discrimination of all types from our society" Peper, supra, at 80, I
find that the maintenance and/or imposition by an employer of a
hostile and intimidating work environment upon gender lines is an
unlawful act under the Law Against Discrimination, N.J.S.A.
10:5-12(a).
Both respondents argue also that, because Capalbo is not an "em-
ployer," liability cannot be imposed for the maintenance of a dis-
criminatory work environment. Capalbo was the principal of the
building, and hence, the agent of the Board of Education. He was
the chief administrative officer in charge of implementing board policy
within the high school. As an agent of the Board of Education, he
functioned as the employer. Traditional concepts of respondent su-
perior apply in such a situtation. See, Bundy, supra, at 943 and 947.
As noted by the Supreme Court of New Jersey, in McAndrew v.
Mularchuk, 33 N.J. 172, 190 (1960):
there is perhaps no doctrine more firmly embedded in the law
than the principal that liability follows tortious wrongdoing and

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that employers or principals, individual or corporate, are respon-
sible for that wrongdoing when committed by agents and em-
ployees acting within the scope of the employment.
Capalbo was clearly acting within the scope of his employment by
adopting a particular personality and approach to the supervision of
his subordinates. By his own submission he intentionally cultivated
harassing and insulting banter among the staff. This was a purposeful,
premeditated technique which he thought would achieve espirit de
corps and maintain selfconfidence in the teachers. Merely because
Capalbo was not furthering an explicit board policy does not mean
that he was not acting within the scope of his employment. See, Ross
Systems v. Linden Dari-Delite, Inc., 35 N.J. 329, 338 (1961), and
Mayfair Fabrics v. Henley, et al., 101 N.J. Super. 363, 377 (1968). The
Final Guidelines on Sexual Harassment in the Workplace issued by the
Equal Employment Opportunity Commission on November 10, 1980,
see, 29 C.F.R. ? 1604.11(d), are also in accord with this rule. See also,
Bundy, supra, at 947. In consequence of the foregoing, respondent
Keansburg Board of Education is liable for the damages incurred
through its agent, respondent Capalbo.
Furthermore, because it was Samuel Capalbo, the individual who
functioned as employer, he is also personally subject to the Division's
jurisdiction. This is in keeping, also, with the Director's broad discre-
tion and "extensive powers." Jackson v. Concord Company, 54 N.J.
113, 123 (1969). To prevent such future conduct, the Director must
have the power to reach individuals who, because of their authority
and control over employees, are responsible for the actual per-
petration of discriminatory acts. Id., at 125.
In Anderson v. Exxon Co., 89 N.J. 483, 502 (1982) the New Jersey
Supreme Court held:
Nor was it error to affirm the issuance of a cease and desist order
against Sullivan. While Sullivan may have wanted to employ
Andersen as Exxon claims, Sullivan chose not to do so when he
earned of complainant's handicap. As the individual directly
responsible for refusing complainant employment, Sullivan was
a direct, active participant in the discrimination. It was thus
appropriate to issue a cease and desist order against him. Jackson
v. Concord Co., 54 N.J. 120-122 (1969)
The court also held, at footnote 8, that:
[I]n the exercise of his discretion, the Director ordered Exxon,
but not Sullivan, to pay damages to complainant.

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Respondent Capalbo is also guilty of inciting other teachers, by his
example, to perpetuate and maintain a discriminatory, hostile and
offensive work environment, which continued even after he had been
transferred from the High School. The impact and ramifications of
his unlawful conduct, and the injury resulting therefrom, continued
to be felt when he was no longer there. Thus, the administrative law
judge was correct to find a violation of N.J.S.A. 10:5-12(e), which
prohibits the aiding, abetting or inciting of a violation of the statute.
The record also demonstrates that the Board was on notice in regard
to all the conduct found herein to have been violative of the Law
Against Discrimination. I concur in the finding of the administrative
law judge that the Board is also liable for those violations under the
less stringent standard of direct, as opposed to vicarious, liability.
Another objection which both respondents put forth to the finding
of the administrative law judge is that the First and Fourteenth
Amendments of the Unites States Constitution and Article I, sec. 6
of the New Jersey Constitution, protect the comments and conduct
of respondent Capalbo. This point need not detain us long. The
violation of the law with which the Division on Civil Rights is con-
cerned in this matter is the imposition of the discriminatory, hostile
and offensive working environment. The fact that speech is the vehicle
for the creation of this environment does not therefore make it a
protected activity, any more than the commission of fraud through
the use of speech would immunize the wrong doer from civil or
criminal prosecution. Furthermore, the content of Capalbo's speech
is not itself being regulated so much as are the results (sex discrimina-
tion) that follow from the use of the speech. It is the imposition of
differential adverse treatment upon teachers according to their gender
that is the essence of this complaint. See, Pittsburgh Press Co. v.
Human Rel. Comm., 413 U.S 376 (1973) and Passaic Daily News v.
Blair, 63 N.J. 474 (1973).
Finally, respondents raise the question of the standard of proof
required to demonstrate the existence of a hostile and offensive work
environment. The question is, in determining whether a set of facts
constitutes an offensive and hostile environment does one use the
subjective response of the individuals in the environment as the
criterion or does one use a neutral, objective, reasonable person stan-
dard? Respondent's claim that:
we do not object to the adoption of an objective standard by the
court in examining if Capalbo's words were actionable, but, we
would submit that the court's ultimate conclusion in light of all

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the testimony, was a subjective finding rather than an objective
finding, and therefore, was erroneous. We would submit that
there has been a mis-application of the standard by this court
because clearly a reading of this decision is replete with the
subjectivity of the court rather than any objectivity whatsoever.
The disregarding of the overwhelming testimony in this case is
plain; any review of the record would demonstrate that this court
used the subjective rather than the objective standard in making
these findings.
In opposition, complainants argue that:
Capalbo also complains that the judge's utilization of the reason-
able person standard was unduly subjective. If by subjective
Capalbo means that the judge determined the content and con-
tours of the standard, then Capalbo is correct. But that is hardly
grounds for complaint. In non-jury cases the judge always de-
termines the applicable standard and applies it to the facts in the
record, thereby reaching a legal conclusion. Moreover, the judge's
evaluation of Capalbo's conduct and comments is eminently ac-
curate and fair. Even a cursory review of the conduct and remarks
which Capalbo admitted making would convince any reasonable
person of their egregiously offensive nature.
In deciding the question of the objective or subjective standard, it's
also important to note that each case is judged on a case-by-case basis.
I agree with the administrative law judge's conclusion that, even
if the more stringent objective standard is applied, the facts in this
case are such that all resonable people would conclude that the cir-
cumstances constituted a hostile and offensive work environment.
Consequently, there is no need at this point to address the question
on the part of that an individual's sensibilities would play in defining
the lawfulness or unlawfulness of a work environment.
Respondent Capalbo requests that in light of the obvious bias
on the part of Judge Glickman that this matter be given a new
trial and remanded to another OAL Judge. We are enclosing a
copy of a Motion which which was made with reference to our
application to have Judge Glickman rescue himself from the
tenure heating regarding Mr. Capalbo. We would submit in light
of the fact that the court, after the Motion was made, rescued
itself, it is rather clear that Judge Glickman made up his mind
and in no way could fairly decide these issues regarding Capalbo.
Also, in light of the fact that Judge Glickman, in his conclusions,
ordered that a copy of his decision be submitted to the Com-
missioner of Education to take whatever action the commissioner

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deemed appropriate is another example of the trial court's ob-
vious bias and prejudice against the respondent. Unfortunately,
in this matter, the finder of fact, because of his subjective feelings,
and finding offense in what was said by Capalbo, let those feelings
so affect his thought processes that he was incapable of rendering
a fair decision based upon existing law.
We respectfully request the right to make an oral argument of
all of the foregoing exceptions and the assessment of counsel fees
for petitioners' attorney before the Division on Civil Rights
before it acts upon the Decision.
In response, the complainants argue:
Also meritless, and misplaced, is Capalbo's contention that Judge
Glickman was prejudice. In support of this assertion Capalbo
relies on Judge Glickman's recent recusal of himself (pursuant
to Capalbo's motion)from the tenure hearing case against
Capalbo now pending in the Office of Administrative Law. First
of all, the recusal was made in the tenure case which was assigned
to Judge Glickman for trial after the civil rights case had already
been tried. When Capalbo asked Judge Glickman to disqualify
himself from the tenure case, Judge Glickman agreed. In any
event, disqualification because of prejudice is warranted only
where a judge's bias is rooted in extrajudicial sources, rather than
in judicial sources which can be corrected on appeal. United
States v. Grinnel Corp., 384 U.S. 563,583 (1966); Smith v. Dango,
585, F. 2d 83, 87 (3rd Cir. 1978). In order to establish a judge's
bias justifying disqualification, the movant must show more than
mere opinion or intemperate remarks. Johnson v. Trueblood, 629
F. 2d 287 (3rd Cir. 1980). A judge's prediliction for a particular
view of the law does not amount to prejudice. United States v.
Thompson, 483 F. 2d 527, 529 (3rd. Cir. 1973). Capalbo has not
shown anything approaching a sufficient basis for finding Judge
Glickman to have been prejudiced. Nothing in the record mani-
fests a prejudice based on extrajudicial sources.
The respondents' motion for a new trial before another OAL Judge
is hereby denied. Pursuant to N.J.A.C. 1:1-16.4(d) motions to re-
consider an initial decision are not permitted. Contrary to the respon-
dents' contention that the administrative law judge showed bias and
prejudice, the Director finds after a thorough review of the entire
record in this matter that the hearing was conducted in a fair and
orderly manner without prejudice or bias directed toward either party.
Further, the decision of the administrative law judge to give greater
weight to some testimony over that of other testimony is properly

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within his scope of authority in that he was the trier of fact and has
had the opportunity to observe the demeanor of each witness. I am
convinced that the record as a whole contains ample credible evidence
to support the hearer's recommended findings and that he was not
biased or prejudiced toward either party. I have studied the testi-
monial transcript and the findings of fact in the administrative law
judge's initial decision and while conferring with those of the adminis-
trative law judge my findings are made independently of his. There-
fore, since no actual prejudice or bias has been demonstrated, the
respondents' request to make oral argument before the Director is
also denied.
The Director concurs with complainants' argument that no preju-
dice was shown when the administrative law judge recused himself
from the tenure case which was assigned to him for trial after this
case was tried. To the contrary, when Capalbo made a motion for
Judge Glickman to disqualify himself from the tenure case, he agreed.
Likewise, no prejudice has been shown because, the administrative
law judge submitted a copy of his initial decisidn to the Commissioner
of Education. The respondent Board takes exception to findings
numbered 34, 35, 36, 48 and 63 of the initial decision. In excepting
to the above findings by the administrative law judge the Board
contends that pursuant to the provisions of N.J.S.A. 18A:6-11, any
charge made against any employee of a Board of Education under
tenure must be filed with the secretary of the Board in writing and.
a written statement of evidence under oath to support such charge
must be presented to the Board of Education. The Board indicates
that in view of its responsibility under the above Tenure Employee's
Hearing Law it could not conduct an investigation of the complai-
nants about Capalbo's words, conduct and action complained of by
the women at the January 12, 1981 meeting.
Having previously adopted all of the administrative law judge's
factual findings, the above exception is rejected. With respect to the
Tenured Employee's Hearing Law, the Director looks with favor on
complainants' May 25, 1983 response to this exception:
The Board suggests that it was constrained from investigating the
complaints about sex harassment presented orally to the super-
intendent by several female teachers on January 13, 1981 (ironi-
cally, the superintendent was also the EEO officer). The alleged
constraint consists of the dictates of the Tenure Hearing Law
N.J.S.A. 18A:6-10 et seq., which sets forth the powers of a school
board presented with tenure charges. However, that law is patent-

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ly inapplicable to the January 13, 1981 incident. The Tenure
Hearing kaw is only applicable where formal charges are filed
against a staff member, thereby triggering the tenure hearing
procedures. The three females who complained about Capalbo
to the superintendent on January 13, 1981 did not file or seek
to file tenure charges. Rather, they attempted, though furllely,
to appraise the administration of the existence of a problem
afflicting female teachers. If there is no tenure charge, N.J.S.A.
18A:6-11 simply does not become operative. That was precisely
the situation on January 13, 1981: no tenure charges were filed,
no tenure hearing laws applied.
If the Board is suggesting that it could not investigate the oral
complaints lodged by the females on January 13, 1981 because
the Board might eventually have to hear the matter as a tenure
case if the tenure charges were ultimately filed, then it is wrong,
and dangerously so. Under the Board's argument, a local school
board could never investigate any allegation against a staff mem-
ber because the board may eventually entertain a tenure case
against the staff member. If this theory were adopted, school
boards would be precluded from ever examining working con-
ditions or the behavior of staff. This is plainly an untenable
position and it has no support in the law.
The Tenure Hearing Law was designed to protect teachers from
improper board actions once tenure charges are filed. But the
statute does not prevent a board from investigating a matter to
see if charges should be brought. Indeed, under the Board's
theory, no charges would be brought by a Board because they
could never look into a matter to see if it warrants bringing of
charges. If a Board's power to investigate is aborted because of
its quasi-judicial powers, then its quasi-judicial powers will
atrophy because it would never be able to evaluate a matter to
determine whether to exercise its quasi-.judicial powers.
Finally, it is manifestly apparent that the Board's novel notion
is contrary to the fundamental policy prohibiting discrimination
in employment in New Jersey. Any argument which eviscerates
an employer's obligation to monitor its working conditions to
insure against sex discrimination must be discarded as anathema
to this State's enlightened policy of guaranteeing a non-
discriminatory work place.
Respondents contend that since the administrative law judge fol-
lowed the standards enunciated .in the Bundy decision he is prohibited
by Henson from awarding complainants damages for mental suffering
or emotional distress. The contention is misplaced. First, and fore-

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most, this case was not tried under Title VII, but under the provisions
of the New Jersey Law Against Discrimination, although the Director
finds the administrative law judge correct, under his analysis previous-
ly mentioned, in reaching out to Federal cases for guidance in inter-
preting the New Jersey Statute. However, the administrative law
judge's award of compensatory damages for humiliation, emotional
distress, pain and suffering, is proper under established precedent of
the New Jersey Law Against Discrimination. Zahorian v. Russell Fitt
Reas Estate Agency, 62 N.J. 399, 416 (1973); A.nderson v. Exxon Co.,
89 N.J. 483, 502, 503 (1982).
Respondents take exception to the amount of counsel fees awarded
complainants by the administrative law judge, claiming that they are
excessive and erroneous. Complainants observe that:
Capalbo objects to the assessment of attorneys' fees as 'excessive
and erroneous.
Capalbo's reasons for complaining are two fold: that the respon-
dents are a public entity and that the New Jersey Education
Association has subsidized the costs of prosecution. Both facts
are true. Both facts are irrelevant. Significantly, Capalbo's argu-
ment is unsupported by reference to any legal authority.
It is important to point out that the attorneys' fees statute,
N.J.S.A. 10:5-27.1 does not differentiate between suits against
public or private entities. The purpose of the attorneys' fees
statute in civil rights statutes such as the Law Against Discrimina-
tion is to facilitate civil rights suits so as to vindicate the rights
of victims of discrimination and to eradicate and deter the cancer
of discrimination. Christianburg Garment Co. v. EEOC, 434.U.S.
412 (1978). Just as with the federal attorneys; fees statutes, private
complainants were to be viewed as private attorneys general
acting in the public interest and, accordingly, deserving, of at-
torneys' fees. Without the attorneys' fees laws, discriminatees
would hardly ever be able to afford or risk prosecuting the
discriminators. Id. These considerations pertain whether the dis-
criminator is a governmental agency or General Motors. The
costs of litigation is no less against a school board than against
a private company. If the attorneys fees statute is designed to
encourage civil rights and to regard successful plaintiffs, there is
no basic in logic or law for varying the amount of the award
based on the nature of the respondent. See, Thompson v. Madison
County Bd. of Education, 496 F.2d 682, 689 (5th Cir. 1974) (Court
of'Appeals, reversing the trial courts denial of attorneys' fees
because their suit was funded by a teachers' organization, stated
that 'these are wholly impermissable reasons for denying an

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award of attorneys' fees or expenses.'); Davis v. County of Los
Angeles, 8 F.E.P. 244 (C.D. Cal. 1974) (In suit against county,
court rules that attorneys' fees should be paid to the public
interest law firm at rate normally paid to private sector at-
torneys). Complainants contend that no case law is cited by
Capalbo which warrants taking into account the status of the
respondent in the context of an award of attorneys' fees. Indeed,
any such notion would have the deleterious effect of discouraging
the participation of competent counsel in civil fights suits
agagainst public bodies, thereby deterring suits against public
bodies. Ironically, the attorneys' fees statutes in civil fights laws
were intended to do just the opposite: to encourage and facilitate
private attorneys would be compensated at their no mal rates.
Dowdell v. City of Apopka, supra.
Complainants continue:
nor is the fact that NJEA has paid a portion of the cost of
litigation relevant. First of all, this firm will repay the NJEA all
monies which this firm received from the NJEA in connection
with this suit. Secondly, numerous courts have declared that an
award of attorneys' fees to public interest law firms who receive
salaries from sources other than the complainants are, nonethe-
less, entitled to attorneys' fees at a normal private practice rate,
even though the complainant did not spend any money on at-
torneys' fees. See e.g. Bradenburger v. Thompson, 494 F.2d 885,
889 (9th Cir. 1974); Sanden v. Mayo Clinic, 495 F.2d 219, 221
(lst Cir. 1974); ThomPson v. Madison County Bd. Of Ed., supra;
Fairly v. Paterson, 443 F.2d 598 (Sth Cir. 1974); Davis v. County
of Los Angeles, supra. Also the fact that a plaintiff, or its sponsor,
pays the attorney at a lower than usual rate for that attorney
does not warrant an award of attorneys fees based upon a normal
rate. Kingsley v. N.J. Dept. of Correctional Services, 30 F.E.P. 121,
124 n.6 (W.D.N.Y. 1982). In short, Judge Glickman's award of
attorneys' fees should be affirmed and modified to include the
expenses entailed in handling this matter after his decision.
Not to award complainants counsel fees, as suggested by the respon-
dents, would circumvent N.J.S.A. 10:5-27.1 which provides that:
"... the prevailing party may be awarded a reasonable attorneys' fees
as part of the cost .... "
While there are few cases that exist in the Division dealing with
this issue, those which have considered the question, are consistent
with the administrative law judge's initial decision. The Director con-
curs with the administrative law judge conclusions of law and affirm

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the award of counsel fees to complainant's. See, Allen v. Terminal
Transport Co., Inc., 486 F. Supp. 1195, 1199 (1980).
As to all of the other issues raised in respondent's exceptions, the
Director finds them without merit and rejects them.
Therefore, it is my finding that the named respondent, Keansburg
Board of Education is an employer with the meaning of N.J.S.A.
10:5-5(e), that the named respondent, Samuel C. Capalbo, as agent
of the Board, is also an employer, and that as such, both are subject
to the provisions of the New Jersey Law Against Discrimination,
specifically N.J.S.A. 10:5-4 and N.J.S.A. 10:5o12(a).
In addition, respondent Capalbo, a person under N.J.S.A.
10:5-12(e), is also subject to the provision of the Law Against Dis-
crimination, N.J.S.A. 10:5-12(e).
It is therefore on the 28th day of July 1983 hereby ORDERED that:
1. Respondents, Keansburg Board of Education and Samuel C.
Capalbo through their agents and employees, shall cease and
desist from the doing of any act prohibited by the New Jersey
Law Against Discrimination as set forth under N.J.S.A. 10:5-1
et seq.
2. Respondent Keansburg Board of Education shall pay Karen
Brown compensatory damages in the amount of $2,500 for the
pain, suffering and humiliation caused by respondents' un-
lawful acts.
3. Respondent Keansburg Board of Education shall pay Diane
H. Roberts compensatory damages in the amount of $1,000
for the pain, suffering and humiliation caused by respondents'
unlawful acts.
4. Respondent Keansburg Board of Education shall pay Judith
Reynolds compensatory damages in the amount of $500.00 for
the pain, suffering and humiliation resulting from respondents'
unlawful acts.
5. Separate checks shall be made payable to the individual com-
plainants in the amounts mentioned hereinabove and for-
warded to the Division on Civil Rights, 1100 Raymond
Boulevard, Room 400, Newark, New Jersey 07102 for trans-
mittal to the' complainants within 45 days after receipt of the
within Order.
6. In addition, respondent Keansburg Board of Education shall
forward a check in the amount of $19,120.00 made payable
to Kenneth Nowak, Esq., to the Firm of Zazzali & Kroll,
Gateway I, Newark, New Jersey 07102 within 45 days after
receipt of this Order.

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7. If the above mentioned checks are not received within 45 days
after receipt of this Order, interest will run from the date of
this Order at 12 percent, or such other amounts designated by
the Court Rules during the pendency of this case.
8. The respondents shall not engage in any retaliatory conduct
against complainants or any other participant in thes proceed-
ings, or allow any of their employees to engage in such conduct.
9. As an addendum to the respondents' policy prohibiting sexual
harassment discrimination, the designated Affirmative Action
Officer shall explain the complaint procedure, and state clearly
that there will be no reprisal against any employee for making
a complaint of sexual harassment. The policy shall also explain
that sexual harassment is a violation of the New Jersey Law
Against Discrimination and that if the Affirmative Action Of-
ricer or Superintendent of Schools cannot satisfactorily resolve
an employee's complaint, the employee has the option of filing
a complaint with the Division on Civil Rights, or'another
appropriate Civil Rights enforcement agency.
10. Jurisdiction is retained by the Division on Civil Rights to
observe and require compliance and to issue Supplemental
Orders, if necessary to insure compliance with the foregoing
provisions of this Order.