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A public entity’s investigation of a harassment complaint by an employee of an independent contractor will not divest the agency of immunity from suit under the New Jersey Law Against Discrimination, the state’s Appellate Division ruled June 30. A three-judge panel upheld summary judgment dismissing a suit by a nurse who claimed an Atlantic County corrections officer sexually harassed her in Chrisanthis v. Atlantic County, A-5099-01T1. Giselle Chrisanthis, an employee of Correctional Healthcare Solutions Inc., was assigned to the Atlantic County Justice Facility where, she claimed, Lieut. Sean Thomas touched her in an inappropriate manner on two occasions in 1999. She complained to his supervisors, who concluded after an investigation that the allegations were without merit. Atlantic County Superior Court Judge Carol Higbee ruled that the LAD does not protect independent contractors, and Appellate Judges Joseph Lisa, Michael Patrick King and Jose Fuentes agreed. Chrisanthis’ lawyer, Carl Poplar, argued that Chrisanthis had a dual-employer relationship with CHS and the county. He cited Kurdyla v. Pinkerton Sec., 197 F.R.D. 128 (D.N.J. 2000), where the court ruled that a plaintiff may be an employee of more than one entity. But the appeals court said Chrisanthis had failed to satisfy the list of criteria for such a showing, set out in Pukowsky v. Caruso, 312 N.J. Super. 171 (App. Div. 1998). The most important of those is the employer’s right to control “the means and manner of the worker’s performance,” which was not true here. “There is little dispute that plaintiff’s activities as a nurse were always supervised by a CHS nursing manager and not by a County employee during her employment at the Facility. As recognized by the trial judge, the ‘bottom line is her work was as a nurse and the County did not direct how she could nurse,’” Lisa wrote. Moreover, the panel rejected the argument that the county assumed liability for protecting Chrisanthis from sexual harassment by having its supervisory corrections officers investigate her complaints. The judges agreed with Higbee that the county’s fulfillment of its legal obligation to investigate did not result in classification of Chrisanthis as a county employee for LAD purposes. That part of the ruling was especially welcome to the county’s lawyer, Arthur Murray, an associate at Atlantic City’s Jacobs & Barbone. “Just because the county investigated its own employee does not mean that [the plaintiff] is an employee of the county,” he says. “If the county is going to investigate a claim, that does not mean it should be penalized.” Poplar, who runs a firm in Turnersville, did not return a call seeking comment.

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