72 Ariz. 217 (1951)
232 P.2d 963
WOOD et ux.
v.
TOWN OF AVONDALE.
No. 5282.
Supreme Court of Arizona.
June 18, 1951.
*218 W.H. Chester, of Phoenix, for appellants.
George D. Locke, of Phoenix, for appellee.
DE CONCINI, Justice.
Appellants D.R. Wood, et ux, were on October 14, 1947, the owners of a certain lot in the Town of Avondale abutting on U.S. Highway 80. On said date appellees Town of Avondale through its common council adopted Ordinance No. 16 with the emergency clause attached, by which it prescribed a limit of ten feet from the front property line abutting said highway on which property owners could not build, but would have to construct their improvements thereon in accordance with that ten-foot setback line.
Subsequent thereto appellants improved their property with a business establishment without regard to the ten-foot set-back as prescribed by said ordinance, all with notice that the ordinance was in existence at the time.
Appellees brought action seeking a mandatory injunction requiring appellants to remove their structure from the prohibited zone. A hearing was had on an application for a temporary injunction on an agreed statement of facts, which was denied. Counsel then stipulated to additional facts, both parties moved for summary judgment and the matter submitted on briefs. The trial court found in favor of *219 appellees and ordered that the injunction against appellants be made permanent.
Appellants are here on several assignments of error. There is only one question presented by this appeal and that is whether Ordinance 16 is constitutional. The ordinance was adopted under the powers purportedly granted by section 16-207, sub. 3, A.C.A. 1939, which provided as follows: "3. To exercise exclusive control over the streets, alleys, avenues and sidewalks of the town and to give and change the names thereof; to prevent and punish for the encumbering thereof, and to abate and remove all encumbrances and obstructions thereon; to widen, extend, straighten, regulate, grade, clean or otherwise improve the same; to open, lay out and improve new streets, avenues and alleys; to vacate any street, avenue, alley or sidewalk in such town and to abolish the same; and to protect the same from encroachment and injury; * * *."
Appellants concede that the ordinance which requires a setback, was passed without regard to article 14, A.C.A. 1939, entitled Zoning Districts. Section 16-1401 provides in part: "Grant of Power.  For the purpose of promoting the health, safety, morals, or the general welfare of the community, the legislative body of incorporated cities and towns may regulate and restrict the height, * * * and may establish setback lines; * * *."
Section 16-1402, Method of procedure by Ordinance, provides for notice of public hearing published in a newspaper, action by common council on protest of 20% of the property owners involved; creation of a zoning commission to study and recommend to council and council shall not take action until it has received final report from commission. Section 16-1403 provides for a board of adjustment.
Appellees cite Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228; Village of Euclid, Ohio, v. Amber Realty, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Thille v. Board of Public Works, 82 Cal. App. 187, 255 P. 294; Weiss v. Guion, D.C., 17 F.2d 202; City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923. These cases uphold "zoning ordinances" that are deemed reasonable and help promote the general welfare of the public. Had appellees adopted a zoning ordinance in accordance with sections 16-1401-02-03 those cases would support their contention. Section 16-207, supra, upon which they rely grants appellees the right to control streets, alleys and sidewalks but doesn't grant any control over the private property of its citizens except to prevent, abate and remove encumbrances upon its streets and alleys and to provide a penalty for a violation thereof.
Property owners are entitled to notice before the passage of a zoning ordinance which would limit the use of their property. Berrata v. Sales, 82 Cal. App. 324, 255 P. 538; Makrauer v. Board of Adjustment of Tulsa, 200 Okl. 285, 193 P.2d 291. The revocation of a permit to drill *220 an oil well within the city limits, under a zoning ordinance, without notice, is violative of the 14th Amendment of the U.S. Constitution. Trans-Oceanic Oil Corp. v. City of Santa Barbara, 85 Cal. App.2d 776, 194 P.2d 148.
It is clear that the action of appellees in enacting Ordinance 16 without regard to article 14, A.C.A. 1939 (zoning), was illegal and the same is without force and effect and is unconstitutional in that it deprives appellants of their property without due process of law.
Judgment reversed with directions to dissolve the permanent injunction and dismiss the complaint.
UDALL, C.J., and STANFORD and LA PRADE, JJ., concur.
PHELPS, J., did not participate in the determination of this case.


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  October 31, 2005                                                                                Clifford W. Taylor,
                                                                                Chief Justice

  128607                                                                                Michael F. Cavanagh
                                                                                Elizabeth A. Weaver
                                                                                Marilyn Kelly
                                                                                Maura D. Corrigan
  PEOPLE OF THE STATE OF MICHIGAN,                                                                     Robert P. Young, Jr.
            Plaintiff-Appellee,                                                                        Stephen J. Markman,
                                                                                Justices

  v                                                                 SC: 128607
                                                                    COA: 255856
                                                                    Bay CC: 00-001004-FC
  JUSTIN DANIEL PERROU,
            Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the April 7, 2005 order
  of the Court of Appeals is considered, and it is DENIED, because the defendant has
  failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).

                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           October 31, 2005                    _________________________________________
           p1024                                                               Clerk


105 Wn.2d 48 (1985)
710 P.2d 192
BETTE McDOWELL, as Guardian ad Litem, Plaintiff,
v.
THE AUSTIN COMPANY, Respondent, CANRON CORPORATION, Petitioner.
No. 51545-0.
The Supreme Court of Washington, En Banc.
December 12, 1985.
*49 Lane, Powell, Moss & Miller, by Robert W. Thomas and Nancy McCready Higgins, for petitioner.
Merrick, Hofstedt & Lindsey, P.S., by Thomas V. Harris, for respondent.
UTTER, J.
The Austin Company, a general contractor, seeks indemnity from Canron Corporation, a subcontractor, for a settlement payment to Canron's injured employee. The trial court dismissed Austin's claim. The court concluded that the terms of the indemnity clause executed by Austin, the indemnitee, and Canron, the indemnitor, do not clearly obligate Canron to indemnify Austin against liabilities caused by the concurrent negligence of the parties. The Court of Appeals reversed and remanded. That court ruled that the language of the indemnity clause includes circumstances of concurrent negligence. We affirm the Court of Appeals.
The Boeing Company hired the respondent, the Austin Company, as the general contractor for a construction project. Austin in turn hired the appellant, Canron Corporation, as a subcontractor to perform steel erection work. Austin and Canron executed a subcontract with the following provision:
ARTICLE 8: INSURANCE
...
(b) Subcontractor [Canron] agrees to indemnify and save harmless Owner and Austin against all liability for personal injury, including death resulting therefrom, sustained by any person directly or indirectly employed by *50 Subcontractor or its subcontractors, caused or alleged to have been caused, directly or indirectly, by an act or omission, negligent or otherwise, by Owner or Austin or persons directly or indirectly employed by them, and to assume the defense of any action brought by persons so injured or their personal representatives against Owner or Austin to recover damages for such injuries.
(Italics ours.) Clerk's Papers, at 374.
In addition, Canron agreed in subsection (c) of article 8 to indemnify the Owner and Austin for injuries sustained by "other" persons where such injuries had been caused by Canron, regardless of concurrent or other causation by anyone else, including Austin.
On March 16, 1979, Walter K. Hawes, who was employed by Canron as an ironworker, fell approximately 115 feet to the ground and suffered serious injuries. Evidently, Hawes was not using a safety line. Bette McDowell, guardian ad litem for Hawes, sued Austin to recover damages for Hawes' injuries. Austin tendered defense of the case to Canron, based on article 8(b) of the subcontract between Austin and Canron.
Canron rejected Austin's tender of the defense. Austin then filed a third party complaint against Canron. Prior to trial, Austin and Canron settled the claim for $1,899,000. Canron paid $1,329,300 of the total. Then, in April 1980, Austin and Canron entered into a written "stand-still agreement," in which they agreed to reserve for later determination which of them would be ultimately responsible for the settlement.
Austin subsequently filed a motion for summary judgment, arguing that Canron was obligated under article 8(b) of the subcontract to indemnify Austin for Austin's contribution. Canron filed a cross motion for summary judgment, contending that it was not liable for any part of the settlement, and seeking a recovery from Austin for the amount Canron had contributed. In a judgment dated August 25, 1982, the trial court denied Austin's motion, and granted Canron's. The trial court reasoned that the language of 8(b) *51 did not provide for indemnification of injuries caused in part by Canron's conduct.
Austin appealed. The Court of Appeals reversed and remanded. McDowell v. Austin Co., 39 Wn. App. 443, 693 P.2d 744 (1985). The court held that the indemnity clause requires Canron to indemnify Austin for any liability that Austin might have. The court also held, however, that a factual question persists as to whether the injuries were a result of Austin's sole negligence. If so, the court said, the indemnity agreement would be rendered ineffective by RCW 4.24.115.[1]
Canron appealed to this court. It argues that clause 8(b) is ambiguous on the issue of indemnification against concurrent negligence. Canron relies on several Washington decisions to assert that the ambiguities of 8(b) should be construed against Austin, who is both the indemnitee and the drafter of the clause. See, e.g., Northern Pac. Ry. v. Sunnyside Vly. Irrig. Dist., 85 Wn.2d 920, 540 P.2d 1387 (1975); Tyee Constr. Co. v. Pacific Northwest Bell Tel. Co., 3 Wn. App. 37, 472 P.2d 411 (1970).
The Court of Appeals correctly rejected this argument. Parties are free to establish liability instead of negligence as the triggering mechanism of an indemnity contract. See, e.g., Continental Cas. Co. v. Municipality of Metro Seattle, 66 Wn.2d 831, 836, 405 P.2d 581 (1965) ("[c]ausation, not negligence, is the touchstone"); see also Jones v. Strom Constr. Co., 84 Wn.2d 518, 521, 527 P.2d 1115 (1974). Here, clause 8(b) provides by its terms that any liability borne by Austin that was caused  or allegedly caused  by Austin's conduct triggers Canron's duty to indemnify Austin completely. The trigger operates independently of how Austin's *52 conduct caused the liability.
Canron also argues that the indemnity clause of its contract with Austin is unenforceable because it fails to express clearly an intent that Canron indemnify Austin in circumstances of concurrent negligence. It claims that the provision binds it to indemnify Austin only for employees' injuries caused by Austin alone. Canron suggests that to bind it to indemnify for liability caused by concurrent negligence, 8(b) would have to read "Subcontractor agrees to indemnify ... Austin against all liability ... caused ... by Austin or Canron."
Canron bases its argument on Calkins v. Lorain Div. of Koehring Co., 26 Wn. App. 206, 613 P.2d 143 (1980). That court emphasized that public policy disfavors allowing an indemnitee to contract away liability resulting from its own negligence, and courts will enforce such agreements only if expressed in clear terms. The court declared:
Where agreements provide indemnity based on concurrent negligence, indemnitees are protected against a liability exposure created by their own negligence. As in situations where the law allows persons to indemnify themselves against liability arising from their sole negligence, an intent to indemnify for concurrent negligence must be clearly expressed.
26 Wn. App. at 210. The court held the indemnity clause at issue unenforceable because it was ambiguous in three respects: It failed to state expressly an intent (1) to deprive the indemnitor of his immunity as an employer under the Industrial Insurance Act, (2) to provide indemnity for concurrent negligence, and (3) to provide indemnity in the particular circumstances of the case.
Decisions of this court support the Calkins court's disfavor of contracts to indemnify a party against losses caused by its own negligence. See, e.g., Griffiths v. Henry Broderick, Inc., 27 Wn.2d 901, 182 P.2d 18, 175 A.L.R. 1 (1947); Jones v. Strom Constr. Co., 84 Wn.2d at 520-21. Courts of other jurisdictions agree: "[I]t is a long-established general rule that contracts will not be construed to indemnify a *53 person against his own negligence unless such intention is expressed in clear and unequivocal terms." Annot., Liability of Subcontractor Upon Bond or Other Agreement Indemnifying General Contractor Against Liability for Damage to Person or Property, 68 A.L.R.3d 7, 69 (1976). At least one court has stated that the purpose of this rule is to prevent injustice, and to insure that a contracting party has fair notice that a large and ruinous award can be assessed against it solely by reason of negligence attributable to the other contracting party. Joe Adams & Son v. McCann Constr. Co., 475 S.W.2d 721, 722 (Tex. 1971).
Some courts also agree with Calkins' second basis for its holding. Because of the disfavor of indemnification of a party against its own negligence, courts have stated that they will not enforce an indemnity provision to indemnify a concurrently negligent indemnitee unless the obligation is expressed in clear and unequivocal language. Annot., supra at 126. See also Waller v. J.E. Brenneman Co., 307 A.2d 550 (Del. Super. Ct. 1973).
[1] However, these policy considerations do not require that the Austin-Canron agreement be held unenforceable for failing to expressly mention concurrent negligence. Provision 8(b) provided fair notice to Canron that it would be liable for "all liability" to Canron's employees caused by Austin's conduct. In this situation, the Calkins rule is not necessary for notifying Canron of its role as insurer for the indemnitee's liability. For other cases in which this court has held that an indemnity clause encompassed circumstances of concurrent negligence, see Cope v. J.K. Campbell & Assocs., 71 Wn.2d 453, 429 P.2d 124 (1967); Union Pac. R.R. v. Ross Transfer Co., 64 Wn.2d 486, 392 P.2d 450 (1964). At least one other court has noted that parties need not expressly mention concurrent negligence when they instead expressly agree to indemnify the indemnitee against its own negligence. MacDonald & Kruse, Inc. v. San Jose Steel Co., 29 Cal. App.3d 413, 419, 105 Cal. Rptr. 725 (1972).
[2] This court has long preferred to enforce indemnity *54 agreements as executed by the parties. See, e.g., Griffiths v. Henry Broderick, Inc., 27 Wn.2d at 904-06, 910; Redford v. Seattle, 94 Wn.2d 198, 206-07, 615 P.2d 1285 (1980). We have established specific limits to the enforceability of indemnity contracts to accommodate the statutory mandates of the Industrial Insurance Act, RCW Title 51, see Brown v. Prime Constr. Co., 102 Wn.2d 235, 684 P.2d 73 (1984), and of RCW 4.24.115, see Brame v. St. Regis Paper Co., 97 Wn.2d 748, 649 P.2d 836 (1982). However, as we stated in Northwest Airlines v. Hughes Air Corp., 104 Wn.2d 152, 157-58, 702 P.2d 1192 (1985), the general rules that disfavor an agreement to indemnify an indemnitee against its own negligence do not render such a clause void or unenforceable as a matter of law. Instead, "[w]hat these rules require is that ... the agreement must be clearly spelled out." 104 Wn.2d at 158. Parties rely on indemnity agreements for allocating the responsibility to purchase insurance when a construction project is initiated. Here, Canron and Austin clearly spelled out their allocation of responsibilities. It is not for this court to frustrate such a planning device.
[3] Clause 8(b) would have little use if it were construed to obligate Canron to provide indemnity to Austin only when Austin was solely negligent. RCW 4.24.115 would make the clause almost totally unenforceable.
"... Contracts of indemnity, therefore, must receive a reasonable construction so as to carry out, rather than defeat, the purpose for which they were executed. To this end they should neither, on the one hand, be so narrowly or technically interpreted as to frustrate their obvious design, nor, on the other hand, so loosely or inartificially as to relieve the obligor from a liability within the scope or spirit of their terms."

Union Pac. R.R. v. Ross Transfer Co., 64 Wn.2d 486, 488 ... (quoting from 27 Am. Jur. Indemnity § 13, at 462 (1940)); ...
McDowell v. Austin Co., 39 Wn. App. 443, 448-49, 693 P.2d 744 (1985).
This court will enforce a contract that clearly requires *55 indemnification of the indemnitee against losses caused by its own negligence when enforcement of that clause does not violate RCW 4.24.115. We therefore affirm the Court of Appeals.
DOLLIVER, C.J., and BRACHTENBACH, DORE, PEARSON, ANDERSEN, CALLOW, GOODLOE, and DURHAM, JJ., concur.
NOTES
[1]  RCW 4.24.115, enacted in 1967, provides:

"A covenant, promise, agreement or understanding in ... a contract or agreement relative to the construction ... of, any building ... or other structure ... attached to real estate ... purporting to indemnify against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the indemnitee, his agents or employees is against public policy and is void and unenforceable." (Italics ours.)


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		2014-09-17-01

The Supreme Court of South Carolina

Re: Amendments to Rule 407, South  Carolina Appellate Court Rules.
Appellate Case No. 2013-001610

 ORDER
The South Carolina Bar has filed a petition to amend  Rule 1.6 of the Rules of Professional Conduct.   We grant that portion of the Bar's petition requesting the Court adopt  the American Bar Association's amendments to Model Rule 1.6 and the Comments to  the rule.  We also adopt the American Bar  Association's amendments to the comments to Model Rule 1.17.
Pursuant to Article V, § 4 of the South Carolina  Constitution, Rules 1.6 and 1.17 of the Rules of Professional Conduct are  amended as set forth in the attachment to this Order.  The amendments are effective  immediately.

 s/Jean H. Toal                                  C.J.s/Costa M. Pleicones                          J.
      s/Donald W. Beatty                             J.
s/John W. Kittredge                             J.
s/Kaye G. Hearn
                       J.

  Columbia, South Carolina
September 17, 2014
Rule  1.6(b), RPC, Rule 407, SCACR, is amended by adding paragraph (8), which  provides as follows:
(8) to detect and resolve conflicts of  interest arising from the lawyer's change of employment or from changes in the  composition or ownership of a firm, but only if the revealed information would  not compromise the attorney-client privilege or otherwise prejudice the client.
The  following Comments are added to Rule 1.6 as Comments 13 and 14, with the  remaining Comments renumbered accordingly:
Detection of Conflicts of Interest
[13]  Paragraph (b)(8) recognizes that lawyers in different firms may need to disclose  limited information to each other to detect and resolve conflicts of interest,  such as when a lawyer is considering an association with another firm, two or  more firms are considering a merger, or a lawyer is considering the purchase of  a law practice.   See Rule 1.17, Comment  [6].  Under these circumstances, lawyers  and law firms are permitted to disclose limited information, but only once  substantive discussions regarding the new relationship have occurred.  Any such disclosure should ordinarily include  no more than the identity of the persons and entities involved in a matter, a  brief summary of the general issues involved, and information about whether the  matter has terminated.  Even this limited  information, however, should be disclosed only to the extent reasonably  necessary to detect and resolve conflicts of interest that might arise from the  possible new relationship.  Moreover, the  disclosure of any information is prohibited if it would compromise the  attorney-client privilege or otherwise prejudice the client (e.g., the fact  that a corporate client is seeking advice on a corporate takeover that has not  been publicly announced; that a person has consulted a lawyer about the  possibility of divorce before the person's intentions are known to the person's  spouse; or that a person has consulted a lawyer about a criminal investigation  that has not led to a public charge).  Under  those circumstances, paragraph (a) prohibits disclosure unless the client or  former client gives informed consent.  A  lawyer's fiduciary duty to the lawyer's firm may also govern a lawyer's conduct  when exploring an association with another firm and is beyond the scope of  these Rules.
[14]  Any information disclosed pursuant to paragraph (b)(8) may be used or further  disclosed only to the extent necessary to detect and resolve conflicts of  interest.  Paragraph (b)(8) does not  restrict the use of information acquired by means independent of any disclosure  pursuant to paragraph (b)(8).  Paragraph  (b)(8) also does not affect the disclosure of information within a law firm  when the disclosure is otherwise authorized, see Comment [6], such as when a  lawyer in a firm discloses information to another lawyer in the same firm to  detect and resolve conflicts of interest that could arise in connection with  undertaking a new representation.
Comment  6 to Rule 1.17, RPC, Rule 407, SCACR, is amended to provide as follows:
[6] Negotiations between seller and  prospective purchaser prior to disclosure of information relating to a specific  representation of an identifiable client no more violate the confidentiality  provisions of Rule 1.6 than do preliminary discussions concerning the possible  association of another lawyer or mergers between firms, with respect to which  client consent is not required.  See Rule  1.6(b)(8).   Providing the purchaser access to detailed  information relating to the representation, such as the client's file, however,  requires client consent.  The Rule  provides that before such information can be disclosed by the seller to the  purchaser regarding an active client, the client must be given actual written  notice of the contemplated sale, including the identity of the purchaser, and  must be told that the decision to consent or make other arrangements must be  made within 90 days.  If nothing is heard  from the active client within that time, consent to the sale is presumed.


592 F.2d 1015
Donna Jean ROBBINS and Kester Gene Robbins, Appellants,v.The DISTRICT COURT OF WORTH COUNTY, IOWA, The Honorable JohnF. Stone, Judge of the Worth County District Court, GraceChristensen, Director of the Social Service for WorthCounty, and Clifford L. Reyerson, Clerk for Worth CountyDistrict Court, Appellees.
No. 78-1604.
United States Court of Appeals,Eighth Circuit.
Submitted Jan. 11, 1979.Decided Feb. 21, 1979.

Yale H. Iverson, Des Moines, Iowa, for appellants.
Stephen Robinson, Asst. Atty. Gen., Des Moines, Iowa, for appellees; Richard C. Turner, Atty. Gen. and Lorna L. Williams, Asst. Atty. Gen., Dept. of Justice, Legal Services, Dept. of Social Services, Des Moines, Iowa, on brief.
Before ROSS and McMILLIAN, Circuit Judges, and VAN SICKLE, District Judge.*
ROSS, Circuit Judge.

1
This is an appeal from the district court's1 dismissal of a civil rights action brought under 42 U.S.C. § 1983, on the ground that appellants' claims were barred by the doctrine of Res judicata.  We affirm.

2
The parental rights of appellants, Donna Jean and Kester Gene Robbins, were terminated in 1973 by the District Court of Worth County, Iowa.  This action was taken after three hearings, on the issue of the Robbins' fitness as parents, revealed that conditions in their home remained deplorable despite three years and over 1000 hours of assistance and guidance by the Iowa Homemaker Health Aide Service.2  The Iowa state district court based its decision on two sections of Iowa's termination statute, one of which was not pleaded in the petition.  Appellants appealed to the Iowa Supreme Court.  That court agreed that appellants were denied procedural due process because the district court found a basis for termination not alleged in the petition.3  However the supreme court found sufficient evidence of the Robbins' repeated refusal to give their children necessary parental care and protection to justify termination.4  This section had been pleaded and was relied upon alternatively by the state district court in ordering termination.  Appellants did not appeal the Iowa Supreme Court's decision to the United States Supreme Court.  Instead they filed this § 1983 action in federal district court.

3
Appellants make several arguments in support of their contention that their parental rights were unjustly and unconstitutionally terminated.5  Only one of these issues was raised and resolved by the Iowa Supreme Court.  Appellants' chief argument is that the section of the Iowa termination statute under which termination was ultimately justified is unconstitutional.6

4
The federal district court granted appellees' motion to dismiss on the ground that appellants' § 1983 action was barred by the doctrine of Res judicata, known in Iowa as claim preclusion.  Appellants appeal the dismissal of their claim.

5
In Green v. American Broadcasting Companies, Inc., 572 F.2d 628, 632 (8th Cir. 1978) we held that an issue may not be relitigated in a second lawsuit where that issue had previously been litigated in a prior lawsuit which involved the same cause of action.  Furthermore, issues which might have been raised in the first lawsuit may not be raised in a second lawsuit arising out of the same cause of action.  To determine whether the causes of action are the same in each lawsuit we examine whether or not the primary right and duty, and the delict or wrong are the same in each action.  Engelhardt v. Bell & Howell Co., 327 F.2d 30, 32 (8th Cir. 1964).  An application of the principle of Res judicata additionally requires that the parties in both lawsuits have a close relationship, bordering on near identity, since the second claim is entirely barred by the application of Res judicata.  Green v. American Broadcasting Companies, Inc., supra, 572 F.2d at 631.

6
While Green v. American Broadcasting Companies, Inc., supra, did not involve constitutional issues, this circuit and several other circuits have held that the principle of Res judicata applies to § 1983 actions and operates as a bar to the relitigation of constitutional issues actually raised as well as to constitutional issues that could have been raised in a prior lawsuit if the second suit concerns the same operative nucleus of fact.  Goodrich v. Supreme Court of South Dakota, 511 F.2d 316, 318 (8th Cir. 1975); Jenson v. Olson, 353 F.2d 825, 827 (8th Cir. 1965); Rhodes v. Meyer, 334 F.2d 709, 716 (8th Cir. 1964); Scoggin v. Schrunk, 522 F.2d 436, 437 (9th Cir. 1975), Cert. denied, 423 U.S. 1066, 96 S.Ct. 807, 46 L.Ed.2d 657 (1976); Blankner v. Chicago, 504 F.2d 1037, 1042 (7th Cir. 1974), Cert. denied, 421 U.S. 948, 95 S.Ct. 1678, 44 L.Ed.2d 101 (1975); Lovely v. Laliberte, 498 F.2d 1261, 1263 (1st Cir.), Cert. denied, 419 U.S. 1038, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974).

7
Applying these principles to the instant case it is apparent that the parties to the termination proceedings in the Iowa state courts and the § 1983 action are identical.  Donna Jean and Kester Gene Robbins resisted termination of their parental rights in the Iowa state courts and presently complain that their civil rights were violated by the termination.  It is equally apparent that the causes of action in each proceeding are the same.  Appellants argued in state court as they do here that their parental rights were unjustly and unconstitutionally terminated.  Thus their § 1983 action is based on the same nucleus of operative fact before the Iowa courts.  Appellants had the opportunity to raise these issues before the Iowa Supreme Court and having failed to do so cannot now attempt to circumvent the doctrine of claim preclusion by merely alleging a different theory of recovery where the actions arise out of the same transaction.  Gatzemeyer v. Vogel, 589 F.2d 360 (8th Cir. 1978).

8
The judgment of the district court is hereby affirmed.

*
 The Honorable BRUCE M. VAN SICKLE, United States District Judge for the District of North Dakota, sitting by designation

1
 Honorable Edward J. McManus, Chief United States District Judge for the Northern District of Iowa, presiding

2
 See In the Interest of Robbins, 230 N.W.2d 489 (Iowa 1975) for a more exhaustive discussion of the evidence as regards the issue of appellants' fitness as parents

3
 In the Interest of Robbins, supra, 230 N.W.2d at 491.  Iowa Code Ann. § 232.41(2)(e) (repealed 1976) relied upon by the Iowa district court provided in pertinent part:
The court may upon petition terminate the relationship between parent and child:

2
 If the court finds that one or more of the following conditions exist:
c. That following an adjudication of neglect or dependency, reasonable efforts under the directions of the court have failed to correct the conditions leading to the termination.

4
 Iowa Code Ann. § 232.41(2)(b) (repealed 1976) which had been pleaded and was relied upon by the Iowa district court and the Iowa Supreme Court in affirming the order of termination provided in pertinent part:
The Court may upon petition terminate the relationship between parent and child:

2
 If the Court finds that one or more of the following conditions exist:
b. That the parents have substantially and continuously or repeatedly refused to give the child necessary parental care and protection.

5
 The appellants urged the federal district court to determine whether: (1) they were denied due process in the termination proceedings; (2) the state courts applied a constitutionally impermissible standard in terminating parental rights; (3) Iowa Code Ann. § 232.41 (the entire termination statute, repealed 1976) violates substantive due process guarantees; (4) the evidence justifies termination; and (5) the defendants failed to exhaust less drastic alternatives to termination

6
 Supra, note 4


                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

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

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

v.                                               APPELLATE DIVISION

S. CORALUZZO PETROLEUM
TRANSPORTERS,

     Defendant-Respondent.
_______________________________

           Argued June 4, 2014 - Decided September 16, 2014

           Before Judges Lihotz, Maven and Hoffman.

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

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

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

     The opinion of the court was delivered by

LIHOTZ, J.A.D.

     Plaintiff Brian Dunkley appeals from an October 12, 2012

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

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

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

work    environment,         constructive       discharge,      and     violation      of

public policy.          Plaintiff also appeals from an order denying his

motion for reconsideration of the summary judgment dismissal and

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

prior sexual harassment claim filed against defendant.

       On   appeal,      plaintiff        challenges      the   entry     of    summary

judgment, asserting the judge based his conclusion on erroneous

factual     findings        and   improperly    limited     necessary      discovery.

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

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

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

complaints of avoidance by fellow employees after he reported

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

support     an    LAD     claim     for    retaliatory      discharge      or    impose

vicarious liability on the employer.                Accordingly, we affirm.

       Plaintiff commenced his employment with defendant as an oil

delivery driver on May 4, 2010.                  Defendant provided plaintiff

with an employee handbook, which contained the rules governing

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

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

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

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

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

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

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

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

fuel[.]"

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

made numerous race-related comments directed toward plaintiff,

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

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

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

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

Harrington repeated a reference to the Klan on another occasion;

however, he never clarified whether he had an affiliation with

the group.

       Harrington also recounted anecdotes insinuating he was tied

to a motorcycle gang.           For example, Harrington told plaintiff

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

incident where a

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

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

Plaintiff    believed       Harrington       was    relating     these      accounts

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

       Plaintiff also reported statements made by Harrington that

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

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

plaintiff    felt     stereotyped      African-Americans.              On    another

occasion,   Harrington      told   plaintiff       his   truck   was     vandalized

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

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

Harrington also conveyed derogatory comments complaining about

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

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

       When their truck needed repair, Harrington and plaintiff

went to an African-American mechanic.                Harrington addressed the

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

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

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

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

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

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

because I'll get in trouble."

    When plaintiff did not report for work, Elwood Sickler,

defendant's     safety   coordinator,      called   to   inquire    about    his

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

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

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

Coen, defendant's regional safety manager.               Plaintiff recounted

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

prior evening, explaining these were "things that were bothering

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

    Following     this    meeting,     plaintiff    received   a   phone    call

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

assigned   as    his     instructor.       Plaintiff     returned    to     work

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

Harrington.     Following his reassignment to work with Castellini,

plaintiff suffered no treatment similar to that experienced with

Harrington.

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

consequences    after       reporting     Harrington's       conduct,       and     these

consequences caused his constructive discharge.                          He noted his

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

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

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

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

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

change."      Further,       when    plaintiff      attempted       to     speak       with

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

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

outcasted [sic]."

     Plaintiff also told Castellini he did not receive proper

training     from     Harrington;       Castellini     agreed       Harrington          had

instructed him incorrectly on a number of protocols.                        Plaintiff

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

computer, failed to instruct him not to pressurize the truck

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

keys.

     Castellini       reported      Harrington's      lapses       to   "management."

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

involved in a gasoline spill.

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

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

Plaintiff maintained the spill occurred because he

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

    Plaintiff insisted he was uncomfortable at work and "felt

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

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

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

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

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

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

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

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

resigned.

       Plaintiff filed a complaint against defendant and unnamed

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

defendant       allowed      conduct        amounting        to     a     hostile          work

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

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

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

violating       the   Conscientious       Employee        Protection         Act       (CEPA),

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

       Approximately one month before trial, defendant moved for

summary    judgment.        Plaintiff        filed    a   cross-motion            to    strike

defendant's motion for summary judgment.                     After considering oral

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

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

complaint.            Plaintiff's      request        for      reconsideration               was

similarly denied.         This appeal ensued.

       Prior    to    reviewing     the     issues    presented         on       appeal,      we

recite the principles guiding our review.                           When reviewing a

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

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

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

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

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

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

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

denied, 189 N.J. 104 (2006).            Specifically, we "consider whether

the competent evidential materials presented, when viewed in the

light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed

issue in favor of the non-moving party."                  Brill, supra, 142 N.J.

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

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

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

internal quotation marks omitted).

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

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

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

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

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

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

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

deference, was correct).

       On    appeal,      plaintiff      maintains        the     judge      correctly

determined he presented a prima facie case of harassment, but

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

plaintiff's        supervisor         and     concluding      defendant     was        not

vicariously         liable      for        Harrington's       actionable     conduct.

Plaintiff argues defendant failed to take proper steps to curb

discriminatory           conduct      because       defendant's       anti-harassment

policy lacked structure and monitoring mechanisms; defendant did

not   train      its    supervisors        and    employees   regarding    the      anti-

harassment        and     anti-retaliation           policies;    and     plaintiff's

complaints were not effectively addressed as defendant's upper

management did not show "an unequivocal commitment" to assure

"harassment would not be tolerated."

      The LAD is remedial legislation designed "to root out the

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

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

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

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

unlawful employment practices and discrimination in the form of

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

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

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

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

Further, it prohibits reprisals against an employee who asserts

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

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

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

In   the   context     of    race     discrimination,        the      first   element

requires a plaintiff to show harassment occurred because of his

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

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

seriousness of the harassing conduct varies inversely with the

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

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

Usually,   repeated      incidents      are    required.         However,     even     a

single severe incident may create a hostile work environment in

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

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

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

involving religious affiliation).

          When considering a claim of hostile work environment under

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

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

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

The       inquiry    is    whether       a    reasonable        person   in    plaintiff's

protected         class     would    consider         the      alleged    discriminatory

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

conditions of employment and create an intimidating, hostile or

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

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

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

The court weighs the "severity and pervasiveness by considering

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

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

include      "'the       frequency       of    the    discriminatory          conduct;      its

severity; whether it is physically threatening or humiliating,

or    a    mere     offensive      utterance;         and    whether     it   unreasonably

interferes        with     an    employee's      work       performance.'"       Shepherd,

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

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

106, 124 (2002)).

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

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

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

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

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

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

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

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

facie case of retaliation, the burden of production shifts to

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

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

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

satisfies this burden, the plaintiff must then demonstrate that

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

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

articulated      reason      was    merely     a   pretext    for   discrimination.

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

Super. at 445.

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

when that person opposes any practice rendered unlawful under

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

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

445    ("Such    an     unlawful     employment      practice       occurs       when   an

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

another employee because the latter has challenged any practices

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

As   a   starting    point,    protected    activity,    if    involving      a

complaint,   must    concern    discrimination.       Reyes     v.   McDonald

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

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

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

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

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

employer expressing dissatisfaction over someone else receiving

a promotion is not protected activity because it did not allege

age discrimination).1

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

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

participation   by    upper    management    or   willful     indifference."

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

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

                                    14                               A-3252-12T1
in Taylor as "the Court noted that '[a] supervisor has a unique

role in shaping the work environment.             Part of a supervisor's

responsibilities    is    the   duty   to   prevent,   avoid,   and   rectify

invidious    harassment    in   the    workplace.'"      Cavuoti      v.   N.J.

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

152 N.J. at 503).

    Omissions may also suffice as "an employer that failed to

take effective remedial measures against a harassing employee

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

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

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

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

the employer has joined with the harasser in making the working

environment hostile."      Ibid. (citation omitted).

    Here, the motion judge agreed plaintiff presented a prima

facie case of hostile work environment, stating:

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

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

not   sustained   his    burden     to    prove     defendant     was   vicariously

liable for Harrington's conduct because he could not demonstrate

defendant's supervisors knew about and ignored, participated in

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

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

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

at 26-27.

      Plaintiff disagrees.             First, he maintains Harrington was

his   supervisor,    making      defendant     vicariously        liable     for   his

discriminatory    conduct.          Second,    he    believes      proofs    evinced

defendant ignored or otherwise failed to address the existing

discrimination.      Plaintiff hinges support on the absence of a

formal    investigation        of   the     incidents      he     related,    noting

Sickler, Sprague and Coen did not report                     his allegations to

Human    Resources      or    senior     management,       such    as   defendant's

president,     owners    or    vice      president    of    operations.         Also,

plaintiff asserts Sickler and Sprague had no specific training

regarding how to stop discriminatory conduct, and no adverse

action was taken against Harrington.

      Whether Harrington could be deemed plaintiff's supervisor

during   the   two-week       training    period     is    debatable.        Although

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

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

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

and    identified     plaintiff's      job     responsibilities.           There    were

instances when comments by Harrington to Sickler caused Sickler

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

supervisory     status       was   the    only      test    to    impose    vicarious

liability     upon    defendant,       summary      judgment      would    have     been

prematurely     granted.        However,       Lehmann     and   its     progeny    make

clear vicarious liability is dependent upon additional facts.

       An   employer's      vicarious     liability        for   the   conduct     of   a

supervisor occurs "'if the employer negligently or recklessly

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

that     provides      an     effective         procedure        for     the      prompt

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

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

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

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

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

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

place    well-publicized       and     enforced      anti-harassment        policies,

effective formal and informal complaint mechanism structures,

training, and/or monitoring mechanisms.").

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

March 1, 2010, which contained a directed policy prohibiting

harassment    and   discrimination.           Defendant     demonstrated       it

provided   the   handbook   to   each    employee,        and   employees    are

directed to read the handbook "completely and become familiar

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

Relevant to this matter, the employee handbook provided:

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

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

    The      handbook   described       the    complaint        procedure    and

investigation process as follows:

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

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

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

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

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

Also, there was an express anti-retaliation policy:

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

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

    "[T]he   existence    of   effective   preventative   mechanisms

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

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

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

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

of negligence."   Ibid.

                                 19                         A-3252-12T1
                 Employers    that     effectively    and
            sincerely put five elements into place are
            successful at surfacing . . . harassment
            complaints early, before they escalate. The
            five   elements  are:   policies,   complaint
            structures, and that includes both formal
            and informal structures; training, which has
            to be mandatory for supervisors and managers
            and needs to be offered for all members of
            the organization; some effective sensing or
            monitoring mechanisms, to find out if the
            policies   and   complaint   structures   are
            trusted; and then, finally, an unequivocal
            commitment from the top that is not just in
            words but backed up by consistent practice.

            [Ibid. (citations omitted).]

    We conclude the trial judge properly analyzed the evidence,

which showed defendant adopted a formal anti-harassment and an

anti-discrimination policy and developed a complaint procedure

and investigation process.           Plaintiff, as well as all other

employees hired by defendant, received and acknowledged reading

the handbook.     Further, plaintiff admitted these policies were

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

evidence suggests plaintiff was unable to voice his complaints

or that they went unaddressed because of an ineffective policy.

Here, despite knowing the procedures, plaintiff simply failed to

follow them.

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

policies were properly defined.           When management learned of the

problem, plaintiff's supervisors did not ignore his complaints

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

Sickler's         proactive      conduct        discovered        the     problem.         He

immediately        arranged      a    private      meeting    between      plaintiff      and

other   supervisors         to       review   plaintiff's         experiences.            Upon

gathering the facts from plaintiff, the supervisors acted to

protect plaintiff from further discrimination.

      In hindsight, unquestionably, one could suggest improvement

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

these issues.        Further, publicizing the Human Resources or other

officer     charged       with   enforcing         the    procedures      is    preferable.

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

established standards.                More important, plaintiff's own report

that after meeting with his supervisors, he did not experience

any further discriminatory harassment and suffered no change in

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

effectiveness.

      We    also    conclude         plaintiff's         perceived   ostracism       by   co-

workers fails to support his claim of hostile work environment.

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

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

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

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

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

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

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

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

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

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

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

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

discourtesy and rudeness should not be confused with employee

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

a hostile work environment under the LAD.

      Following    our       review    of    the       record,       we   determine     the

evidence   shows       the    employer      followed      the     steps      outlined    in

Lehmann by adopting policies, offering a complaint procedure,

providing on-going training, and addressing discrimination once

presented.       The    summary       judgment         record    does     not   create    a

dispute    of   material       facts,       as    no    conflicting        evidence     was

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

defendant was not vicariously liable for Harrington's conduct

was a correct one.

      Plaintiff next argues a reasonable jury could conclude he

was   constructively         discharged      because      he    endured      "severe    and

pervasive"      harassment,       which          negatively      impacted       his    work

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

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

defendant's policy.        We are not persuaded.

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

pervasive conduct, but conduct that is so intolerable that a

reasonable person would be forced to resign rather than continue

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

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

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

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

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

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

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

       As discussed above, plaintiff's assertions are insufficient

to support a suggestion that despite his complaints, defendant

failed    to    exercise     due   care   to    enforce   its     anti-harassment

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

establishment of an effective anti-sexual harassment workplace

policy and complaint mechanism evidences an employer's due care and

may provide affirmative protection from vicarious liability.").

Rather, plaintiff admitted once he informed his superiors, they

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

experienced no problems.            He further admits he never interacted

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

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

defendant's responsiveness and other conduct was so unbearable

that a reasonable person would be forced to separate from the

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

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

the harm was remedied immediately and effectively.

    We    also      reject    as    unfounded      plaintiff's        claims    he    was

improperly trained in safety measures.                    Plaintiff acknowledged

Castellini    instructed       him       on     correct     procedures.            During

plaintiff's    training      with       Castellini,    it     was   discovered       that

Harrington    taught     plaintiff         incorrectly;       these      matters     were

addressed     and    Castellini         informed      Sickler       of   Harrington's

errors.

    Plaintiff's final challenge argues the judge erroneously

barred    disclosure     of        an   unrelated      2008     sexual     harassment

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

Plaintiff    asserts    this       shows   upper    management's         tolerance    of

harassment.      We find this argument lacks sufficient merit to

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

3(e)(1)(E).

    Affirmed.

                                           24                                  A-3252-12T1