411 N.J.Super. 236Superior Court of New Jersey,Appellate Divis.docx

411 N.J.Super. 236
Superior Court of New Jersey,
Appellate Division.
J.T.'s TIRE SERVICE, INC. and Eileen Totorello, Plaintiffs-
Appellants,
v.
UNITED RENTALS NORTH AMERICA, INC.,1 Defendant-
Respondent,
and
Harold Hinkes, Defendant.
Argued Dec. 7, 2009.Decided Jan. 6, 2010.
Synopsis
Background: Tire seller and seller's owner brought action
against customer under Law Against Discrimination. The
Superior Court, Law Division, Middlesex County, granted
customer's motion to dismiss complaint for failure to state claim
on which relief could be granted, and plaintiffs appealed.
Holding: The Superior Court, Appellate Division, Reisner,
J.A.D., held that plaintiff's allegations of quid pro quo sexual
harassment that resulted in termination of contract stated claim
for discriminatory refusal to do business in violation of Law
Against Discrimination.
Reversed and remanded.
West Headnotes (4)Collapse West Headnotes
Change View
1Civil Rights
Contracts, trade, and commercial activity
Tire seller's allegation that customer's business manager tried to
extort sexual favors from seller's owner as condition of
continuing business with seller, and that customer terminated
contract with seller when owner refused manager's advances,
stated claim for discriminatory refusal to do business in
violation of Law Against Discrimination. N.J.S.A. 10:5-12(l).

0 Case that cites this headnote
2Pleading
Statement of cause of action in general
A complaint sufficiently pleads a cause of action where one is
suggested by the facts. R. 4:6-2(e).
0 Case that cites this headnote
3Civil Rights
Threats, intimidation, and harassment
Civil Rights
Sexual Harassment; Work Environment
Although the Law Against Discrimination (LAD) does not
specifically mention sexual harassment as a prohibited form of
discrimination, it is well-established that sexual harassment is a
form of sex discrimination that violates both Title VII and the
LAD. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. §
2000e et seq.; N.J.S.A. 10:5-12.
2 Cases that cite this headnote
4Civil Rights
Threats, intimidation, and harassment
Civil Rights
Evidence
Where harassment consists of sexual overtures and unwelcome
touching or groping, it is presumed that the conduct was
committed because of the victim's sex, and thus, when a
plaintiff alleges that she has been subjected to sexual touchings
or comments, she has established under the Law Against
Discrimination that the harassment occurred because of her sex.
N.J.S.A. 10:5-12(l).
J.T.'s Tire Serv., Inc. v. United Rentals N. Am., Inc., 411 N.J.
Super. 236, 985 A.2d 211 (App. Div. 2010)

Attorneys and Law Firms
**212 Elizabeth Zuckerman, Princeton, argued the cause for
appellants (Zuckerman & Fisher, L.L.C., attorneys; Ms.
Zuckerman, on the brief).
David I. Rosen, Newark, argued the cause for respondent
(Littler Mendelson, P.C., attorneys; Mr. Rosen and Jacqueline
K. Hall, on the brief).
Before Judges REISNER, YANNOTTI and CHAMBERS.
Opinion
The opinion of the court was delivered by
REISNER, J.A.D.
*237 Plaintiffs, J.T.'s Tire Service, Inc. (J.T.) and its sole
owner Eileen Totorello, contend that a branch manager at
United Rentals *238 North America, Inc. (United) **213 tried
to extort sexual favors from Totorello as a condition of allowing
her company to continue doing business with United. Plaintiffs
also allege that because she refused the manager's advances,
United ceased contracting with J.T. We hold that plaintiffs'
complaint states a cause of action for a discriminatory refusal to
do business, under the Law Against Discrimination
(LAD), N.J.S.A. 10:5-12(l). We therefore reverse the order
granting United's motion to dismiss the complaint
under Rule 4:6-2(e) and remand this case to the trial court.
I
Both sides agree that, for purposes of the motion and this
appeal, the facts in the complaint must be regarded as true.
United is a national equipment rental company. Totorello is the
sole shareholder of J.T., a company that began selling
commercial industrial tires to United's Piscataway, New Jersey
branch in 1998. The complaint alleges that in 2005, Harold
Hinkes,2 United's Piscataway branch manager, began pressuring
Totorello to have a sexual relationship with him. When
Totorello refused Hinkes' sexual advances, Hinkes caused his
branch of United to stop buying tires from her company. J.T.
“managed to get the work back” when Totorello agreed to have

lunch with Hinkes. However, Hinkes would periodically make
sexual advances and would withhold United's business when
Totorello declined his demands for sexual favors.
According to the complaint, “[i]n late 2007, Hinkes began to be
more insistent in his desire and effort to have a sexual
relationship with Totorello. Against Totorello's will, Hinkes
kissed her and groped her body. When she refused his advances,
he told her she was making a ‘very poor business decision.’ ” In
November 2007, Hinkes began delaying payments to J.T. By
December 2007, *239 United, which previously had been
buying $29,000 worth of tires per month from J.T., ceased doing
business with J.T. altogether.
In pertinent part, plaintiffs' complaint accused United of
unlawful sex discrimination in violation of N.J.S.A. 10:5-12(l),
and retaliation in violation of N.J.S.A. 10:5-12(d).3Before
filing an answer or engaging in any discovery, United filed a
motion to dismiss the complaint for failure to state a claim on
which relief could be granted. R. 4:6-2(e). In a brief statement
of reasons, the trial court concluded:
[T]here is no evidence to suggest that Defendant United Rentals
discriminated against Plaintiff based on her sex, as
contemplated by the statute. Therefore, in light of the total
absence of any evidence that would establish such sex-based
discrimination, Count One of Plaintiff's Complaint as to
Defendant United Rentals is Dismissed with Prejudice.
The judge also found that United had not unlawfully retaliated
against plaintiffs “as contemplated by the statute.”
II
12 A complaint sufficiently pleads a cause of action where one
is “suggested by the facts.” Velantzas v. Colgate-Palmolive
Co., 109 N.J. 189, 192, 536 A.2d 237 (1988). Upon review of a
complaint dismissed pursuant to R. 4:6-2(e), our inquiry:
**214 is limited to examining the legal sufficiency of the facts
alleged on the face of the complaint.... At this preliminary stage

of the litigation the Court is not concerned with the ability of
plaintiffs to prove the allegation contained in the complaint. For
purposes of analysis plaintiffs are entitled to every reasonable
inference of fact.
[Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
746, 563 A.2d 31 (1989) (citations omitted).]
In our review, we owe no special deference to the trial court's
legal conclusions.Manalapan Realty L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995). With that
standard in mind, we turn to the statute in question.
*240 The LAD prohibits discriminatory refusals to do business
on the basis of sex, by making it unlawful:
For any person to refuse to buy from, sell to, lease from or to,
license, contract with,or trade with, provide goods, services or
information to, or otherwise do business with any other person
on the basis of the race, creed, color, national origin, ancestry,
age, sex, gender identity or expression, affectional or sexual
orientation, marital status, civil union status, domestic
partnership status, liability for service in the Armed Forces of
the United States, disability, nationality, or source of lawful
income used for rental or mortgage payments of such other
person or of such other person's spouse, partners, members,
stockholders, directors, officers, managers, superintendents,
agents, employees, business associates, suppliers, or customers.
[N.J.S.A. 10:5-12(l) (emphasis added).]
While there are few cases construing this section of the LAD,
we have previously recognized that it prohibits refusals to do
business with independent contractors based on age, sex, or
handicap. See, e.g., Nini v. Mercer County Cmty.
Coll., 406 N.J.Super.547, 557, 968 A.2d 739 (App.Div.), certif.
granted, 200 N.J. 206, 976 A.2d 383 (2009);Rubin v. Forest S.
Chilton, 3rd, Mem'l Hosp., Inc., 359 N.J.Super. 105, 110-11,
819 A.2d 22 (App.Div.2003); Horn v. Mazda Motor of Am.,

Inc., 265 N.J.Super. 47, 63, 625 A.2d 548 (App.Div.), certif.
denied, 134 N.J. 483, 634 A.2d 528 (1993). In Rubin, we
likewise held that the statute prohibits discriminatory
terminations of contracts:
To distinguish between a refusal to enter into a contract and the
termination of a contract where the motivation is illegal
discrimination would mock the beneficial goals of the LAD,
remedial legislation which should be liberally construed to
advance its beneficial purposes.
[Rubin, supra, 359 N.J.Super. at 110-11, 819 A.2d 22.]
Narrowing the issue in this case, defendant concedes what is
obvious from the plain wording of the statute: it prohibits sex
discrimination in the form of refusals to buy from or otherwise
do business with a person because of her gender. See Rubin,
supra, 359N.J.Super. at 110, 819 A.2d 22 (“Absent a clear
indication to the contrary, language in [the LAD] is to be read
in accordance with its plain and ordinary meaning.”);DiProspero
v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). However,
defendant contends that for purposes of subsection (l ), sexual
harassment is not prohibited sex discrimination.
*241 Defendant advances this argument by contending that
sexual harassment is prohibited only in employment, under
subsection 12(a), and is not sex discrimination within the
meaning of 12(l ); that subsection 12(l ) does not apply to
“discriminatory conduct which arises after companies begin
engaging in business transactions”; **215and that women
business owners do not need protection against sexual
harassment by those with whom they do business. We find no
merit in any of these arguments.
34 Although the LAD does not specifically mention sexual
harassment as a prohibited form of discrimination, it is well-
established that “[s]exual harassment is a form of sex
discrimination that violates both Title VII and the

LAD.” Lehmann v. Toys ‘R’ Us, Inc.,132 N.J. 587, 601,
626 A.2d 445 (1993) (citing Meritor Sav. Bank v.
Vinson, 477 U.S.57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986),
and Erickson v. Marsh & McLennan Co., 117N.J. 539, 555-56,
569 A.2d 793 (1990)). Where, as here, the harassment consists
of sexual overtures and unwelcome touching or groping, it is
presumed that the conduct was committed because of the
victim's sex. “Thus when a plaintiff alleges that she has been
subjected to sexual touchings or comments, ... she has
established that the harassment occurred because of her
sex.” Lehmann, supra, 132 N.J. at 605, 626 A.2d 445.
In the employment context, Lehmann defined two different
types of sexual harassment:
Sexual harassment jurisprudence generally divides sexual
harassment cases into two categories. Quid pro quo sexual
harassment occurs when an employer attempts to make an
employee's submission to sexual demands a condition of his or
her employment. It involves an implicit or explicit threat that if
the employee does not accede to the sexual demands, he or she
will lose his or her job, receive unfavorable performance
reviews, be passed over for promotions, or suffer other adverse
employment consequences. Hostile work environment sexual
harassment, by contrast, occurs when an employer or fellow
employees harass an employee because of his or her sex to the
point at which the working environment becomes hostile.
[Id. at 601, 626 A.2d 445.]
In this case, plaintiffs are alleging that Totorello was subjected
to quid pro quo sexual harassment, and therefore that is the
only *242 issue we address. Based on Lehmann,and the plain
language of the LAD, N.J.S.A. 10:5-12(l ), we have no
hesitation in concluding that quid pro quo sexual harassment
violates subsection (l ). According to the complaint, United
stopped doing business with J.T. because Totorello refused to
submit to sexual demands from United's branch manager. Those

allegations state a cause of action under N.J.S.A. 10:5-
12(l ). See Rubin, supra, 359 N.J.Super. at 110-11, 819 A.2d 22
(subsection (l ) prohibits the discriminatory termination of a
contract).
Defendant's reliance on Pukowsky v.
Caruso, 312 N.J.Super. 171, 180, 711 A.2d 398
(App.Div.1998); Thomas v. County of
Camden, 386 N.J.Super. 582, 902 A.2d 327 (App.Div.2006),
and Chrisanthis v. County of Atl., 361 N.J.Super. 448, 825 A.2d
1192 (App.Div.), certif. denied, 178 N.J. 31, 834 A.2d 404
(2003), is misplaced because those cases did not address
subsection 12(l ). Rather, they concerned claims of sexual
harassment in employment under N.J.S.A. 10:5-12(a). In that
context, we addressed whether the plaintiffs should be
considered employees, covered under subsection 12(a), or
independent contractors who would not be covered under 12(a).
We recognized that distinction in Rubin, supra, where we
rejected the defendant's reliance on Pukowsky in opposing a
claim under 12(l ). Rubin, supra, 359 N.J.Super. at 111,
819 A.2d 22.
If we had any doubts as to the application of 12(l ) here, they
would be allayed by considering the important social policy
underpinning the LAD. Our courts have long recognized that the
LAD was enacted “to eradicate the cancer of
discrimination.” **216Jackson v. Concord Co., 54 N.J. 113,
124, 253 A.2d 793 (1969). The statute is to be liberally
construed to accomplish the Legislature's overriding goal of
eliminating invidious discrimination. N.J.S.A. 10:5-3.
Moreover, “[d]iscrimination based on gender is ‘peculiarly
repugnant in a society which prides itself on judging each
individual by his or her merits.’ ” Lehmann, supra, 132 N.J. at
600, 626 A.2d 445 (quoting Grigoletti v. Ortho Pharm.
Corp., 118 N.J. 89, 96, 570 A.2d 903 (1990)).

*243 The quid pro quo sexual harassment alleged in the
complaint, if legally permitted, would stand as a barrier to
women's ability to do business on an equal footing with men.
Construing N.J.S.A. 10:5-12(l ) to prohibit such opprobrious
conduct is consistent with the Legislature's intent to eliminate
sex discrimination in contracting.
Reversed and remanded.
All Citations
411 N.J.Super. 236, 985 A.2d 211, 108 Fair Empl.Prac.Cas.
(BNA) 150
Footnotes
1
Incorrectly designated as United Rentals, Inc.
2
The complaint against Hinkes individually was dismissed, and
he is not a party to this appeal. We will refer to United as
“defendant.”
3
Subsection 12(d) prohibits reprisals against a person for
asserting rights under the LAD. Plaintiffs' claim under 12(d)
was based on the 12(1) claim and will not be separately
addressed here.
J.T.'s Tire Serv., Inc. v. United Rentals N. Am., Inc., 411 N.J.
Super. 236, 237-43, 985 A.2d 211, 212-16 (App. Div. 2010)
Case to brief:J.T.'s Tire Service, Inc. v. United Rentals North
America, 985A.2d 211

Case Brief Instructions and Grading Rubric
Please note that, unlike the case you have been assigned, the
cases in the text have been stripped down to a fundamental legal
issue related to the chapter of study and do not contain much of
the procedural aspects you may find in your case.
DECIDE ON A FORMAT AND STICK TO IT: Structure is
essential to a good brief. It enables you to arrange
systematically the related parts that are scattered throughout
most cases, thus making manageable and understandable what
might otherwise seem to be an endless and unfathomable sea of
information. There are, of course, an unlimited number of
formats that can be utilized. However, it is best to find one that
suits your needs and stick to it. Consistency breeds both
efficiency and the security that when called upon you will know
where to look in your brief for the information you are asked to
give. Be mindful that the operative word is “brief”; ideally the
case brief should be about one page in length and never over
two pages.
Nevertheless, it is important that a brief contain the following:
TITLE AND VENUE: Identify the case name and citation in the
correct format.
RULE OF LAW: A statement of the general principle of law
that the case illustrates in the form of a statement.
Determining the rule of law of a case is a procedure similar to
determining the issue of the case. Avoid being fooled by red
herrings; there may be a few rules of law mentioned in the case
excerpt, but usually only one is the rule with which the judges
are most concerned. The techniques used to locate the issue,
described below, may also be utilized to find the rule of law.
FACTS: A synopsis of only the essential relevant facts of the
case, i.e. those bearing upon or leading up to the issue. The
facts entry should be a short statement of the events that led one
party to initiate legal proceedings against another in the first
place. While some cases conveniently state the salient facts at
the beginning of the decision, in other instances they will have

to be culled from hiding places throughout the text, even from
concurring and dissenting opinions. Some of the "facts" will
often be in dispute and should be so noted. Conflicting evidence
may be briefly pointed up. It is impossible to tell what is
relevant until the entire case is read, as the ultimate
determination of the rights and liabilities of the parties may turn
on something buried deep in the opinion. The facts entry should
seldom be longer than five sentences.
ISSUE: A statement of the general legal question answered by
or illustrated in the case (Do not attempt to delve into
procedural issues; just focus on the substantive legal issue). For
clarity, the issue is best put in the form of a question capable of
a yes or no answer. In reality, the issue is simply the Concise
Rule of Law put in the form of a question.
The major problem presented in discerning what is the issue in
the case is that an opinion usually purports to raise and answer
several questions. However, except for rare cases, only one such
question is really the issue in the case. Collateral issues not
necessary to the resolution of the matter in controversy are
handled by the court by language known as obiter dictum or
merely dictum. While dicta may be included later in the brief, it
has no place under the issue heading.
To find the issue, the student again asks who wants what and
then goes on to ask why did that party succeed or fail in getting
it. Once this is determined, the "why" should be turned into a
question.
Since many issues are resolved by a court in coming to a final
disposition of a case, you should focus on the portion of the
opinion containing the issue or issues most relevant to the area
of law under scrutiny. A noted law professor gave this advice:
"Look at the case key or head notes”. It is also most important
to remember to read the key or head notes at the beginning of a
case to determine what the editors of the case reporter have
gleaned from it.
OPINION AND DECISION: This section should succinctly
explain the rationale of the court in arriving at its decision. In

capsulizing the reasoning of the court, it should always include
an application of the general rule or rules of law to the specific
facts of the case. Hidden justifications come to light in this
entry; the reasons for the state of the law, the public policies,
the biases and prejudices, those considerations that influence
the justices' thinking and, ultimately, the outcome of the case.
At the end, there should be a short indication of the disposition
or procedural resolution of the case. You may wish to put this
portion of the brief in outline form.
USE OF PRECEDENT: You should relate how the rule of law
discernible from this case compares with that derived from
earlier and later cases. Where does this case fit in the series of
cases which has shaped the relevant portion of the law?
EFFECT ON BUSINESS AND SOCIETY: You should briefly
summarize the impact and effect that the ruling in the case will
have on business and society.
REMEMBER THAT THE OPERATIVE WORD IS “BRIEF”.
For further elucidation, check these links out:
http://www.lib.jjay.cuny.edu/research/brief.html
http://www.ucs.louisiana.edu/~ras2777/civlib/casebrief.html
http://www.lawnerds.com/guide/briefing.html
http://www.ucs.louisiana.edu/~ras2777/adminlaw/casebrief.html
You will be assigned with the citation for your case – such as
“702 F.2d 335” (you must request your case via email to me
after completing the second exam). In this example it means
that it is in volume 702 of the Federal Reporter 2nd Series
beginning on page 335. Your case may be in the Federal
Reporter, Federal Supplement, Southwestern Reporter or the
Supreme Court Reporter or another state reporter.
Here is a web site on case briefing for those who desire to see
examples and learn further intricacies of the process

http://www.lawnerds.com/guide/briefing.html
Here is an example of an erudite and succinct case brief:
Talmage v. Smith, 101 Mich. 370, 45 Am. St. Rep. 414, 59
N.W. 656 (Mich. 1894).
Facts: Talmage (P) and several other children were playing on
the roofs of sheds on Smith’s (D) property. Smith ordered the
children to get down and threw a stick at one of the boys. The
stick missed its intended target and struck Talmage in the eye.
Talmage lost all sight in the eye and sued for battery to recover
for personal injuries.
Evidence was offered showing that Smith threw the stick
intending to frighten (i.e. assault) but not hit a different boy.
The trial court entered judgment for Talmage and Smith
appealed on the grounds that he did not have the intent to hit
Talmage and was therefore not liable for battery.
Issue: If an actor intends to inflict an intentional tort upon one
party and accidentally harms a second party, can the actor be
held liable to the second party for battery?
Holding and Rule: Yes. If an actor intends to inflict an
intentional tort upon one party and accidentally harms a second
party, the actor can be held liable to the second party for battery
under the doctrine of transferred intent.
If an actor intends an act against a party and that act impacts
upon another the actor is liable for the injuries suffered. The
fact that the injury resulted to a party other than was intended
does not relieve the defendant from responsibility. Smith will
not be relieved of liability because he intended to injure
someone else.
Disposition: Affirmed.
Effect on Business and Society: The transferred intent torts
under common law are: assault, battery, false imprisonment,
trespass to land, and trespass to chattels. If an actor has the
intent to commit any of the transferred intent torts, the actor
will be liable for all other transferred intent torts that result
from that act. The actor’s liability extends to all parties harmed,
not merely the original intended victim.

natura non facit saltum ita nec lex

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