Opinion
No. ESX-L-7774-07
Decided: December 18, 2009
Daniel Sexton, Esq. Attorney for Plaintiff
Sandro Polledri, Esq. Attorney for Defendant
OPINION
I. STATEMENT OF MATERIAL FACTS
Plaintiff Enrique Gonzalez ("Plaintiff") is a Caucasian, Hispanic individual who practices the Christian faith and has contracted the HIV virus. For several years, Plaintiff was employed as a counselor by Community Education Centers, Inc., a private company that operates residential reentry facilities for criminal offenders.
In this litigation, Plaintiff asserts that his former employer and supervisors created a hostile work environment and discriminated against him on the basis of his religion, race and medical condition. Plaintiff details numerous incidents that provide the basis of his Complaint.
The Defendants in this case are four members of CEC's supervisory and management staff: (1) Tommy Odom ("Odom"), an African-American Muslim, who was Supervisor of Operations at Logan Hall; (2) Lucille Leslie ("Leslie"), an African-American who was Deputy Director of Operations at Logan Hall; (3) Charles Giordano ("Giordano"), a Caucasian who was Director of Employee Relations at CEC's corporate office; and (4) Joseph Trabucco ("Trabucco"), a Caucasian who held the position of Director of Logan Hall. Defendants filed the instant summary judgment motion, seeking to dismiss Plaintiff's Complaint as a matter of law.
II. DISCUSSION
1. Summary Judgment Framework
Motions for summary judgment are governed by Rule 4:46-2, which requires a court to grant summary judgment upon a moving party's showing "that there is no genuine issue as to any material fact challenged and that the moving party is entitled to judgment or order as a matter of law." In Brill v. Guardian Life Insurance, 142 N.J. 520, 523 (1995), the New Jersey Supreme Court propounded the standard for granting summary judgment underR 4:46-2, holding that the judge must consider, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact finder to resolve the alleged dispute in favor of the non-moving party." The burden is placed on the movant to exclude any reasonable doubt as to the existence of any genuine issue of material facts and all inferences of doubt are drawn against the moving party in favor of the opponent. Heller v. Hartz Mountain Industries, 270 N.J. Super. 143, 149 (Law Div. 1993). This framework will be applied herein to each of Plaintiff's claims.
2. Hostile Work Environment Claim
Plaintiff's Complaint asserts a hostile work environment claim against Defendants. Defendants contend that this claim should be dismissed because the alleged conduct was not severe or pervasive, nor was it based upon Plaintiff's religion, race or HIV status.
The Law Against Discrimination ("LAD") prohibits employers from discriminating on the basis of criteria such as race, creed (i.e. religion), national origin or disability.N.J.S.A. 10:5-12(a). The LAD uses "creed" to designate religious beliefs as opposed to moral or philosophical tenets or values. Shuchter v. New Jersey Div. on Civil Rights, 117 N.J. Super. 405, 408 (App. Div. 1971). A person who is infected with AIDS or HIV is considered to have a disability under the LAD.N.J.S.A. 10:5-5(q).
The New Jersey Supreme Court has held that workplace harassment, if it is based upon protected status such as sex, is a form of prohibited discrimination under the LAD. Lehman v. Toys `R' Us, Inc., 132 N.J. 587, 601 (1993). The creation of a hostile work environment that is based upon other protection criteria, such as religion, race or HIV status, is likewise barred by the LAD.Cutler v. Dorn, 196 N.J. 419, 430-431 (2008).
To establish a hostile work environment claim based upon religion, race or HIV status under the LAD, the Plaintiff must prove: (1) the complained-of conduct would not have occurred but for the employee's religion, race or HIV status; (2) the conduct was severe or pervasive enough; (3) to make a reasonable person of plaintiff's religion, race or HIV status to believe; (4) that the conditions of employment have been altered and the work environment is hostile or abusive. Cutler, 196 N.J. at 430-31;El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005).
When evaluating hostile environment claims, the court should focus on the conduct itself, not its effect upon the plaintiff or the workplace. The court must use a "reasonable person" standard.Cutler, 196 N.J. at 430-31. Neither a plaintiff's "subjective response" to the harassment, nor the defendant's "subjective intent," is controlling as to whether a hostile work environment claim exists. Id.
The factors that a court should consider when determining whether a workplace is hostile or abusive including the following: (1) the frequency of the conduct; (2) the severity of the actions; (3) whether the conduct is physically threatening or humiliating; and (4) whether the actions unreasonably interfere with the plaintiff's work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Given the standards elucidated above and viewing the facts in the light most favorable to Plaintiff, this Court finds that a reasonable factfinder could find in favor of Plaintiff. A. Alleged Harassment Based Upon Religion
Plaintiff's claims concerning religious harassment involve: (1) assignment of Plaintiff to the residential units during the facility's Christian services on two occasions; (2) discriminatory enforcement of the dress code policy; (3) residents' take-out food orders; (4) meat served for lunch on Good Friday; (5) employees participation in Christian and Muslim services; (6) restrictions on reading religious materials on break; and (7) the holidays written on the work calendar.
Assignment of Plaintiff to the Residential Unit — CEC permitted religious services to be held in the cafeteria so that residents could practice their respective religious beliefs. Christian services were held on Sunday and Muslim services on Friday. Defendants sometimes assigned Plaintiff to monitor the residents while they participated in Christian services in the cafeteria. Plaintiff contends that on two occasions Odom reassigned him to work in the residential units. Plaintiff did not know whether Odom had an operational reason to reassign him on those two occasions, but simply thought that Odom did it "to kind of harass me." (Plaintiff Dep., T150:25-T155:10).
Dress Code Policy-Plaintiff asserts that Odom instructed him not to wear religious jewelry, such as a cross, outside his uniform while at work and contends that several Muslim employees were allowed to wear a religious chain outside their uniforms. However, Plaintiff testified that he did not know if Odom ever saw Muslim employees actually wear such jewelry, nor did he know whether Odom ever spoke to those employees about their jewelry. Plaintiff also admitted that Odom never wore any religious jewelry outside his clothing at work. (Plaintiff Dep., T158:78-T162:13). Residents' Take-Out Food Orders: Plaintiff testified that Muslim residents were allowed to order special foods from local restaurants and have them delivered to the facility. Plaintiff also acknowledged that food that is not typically associated with the Muslim faith, such as pizza, was frequently brought into the facility. (Plaintiff Dep. T174:10-T184:25). Plaintiff admitted that both Muslim food and non-Muslim food was purchased; moreover, according to Plaintiff's testimony the food was purchased by the residents themselves, and not CEC. The Court finds that no reasonable factfinder could find that Defendants discriminated against Plaintiff in this regard.
Lunch on Good Friday — Plaintiff asserts that CEC made accommodations for dietary restrictions of the Muslim residents but would still serve meat to residents on Good Friday, contrary to Plaintiff's own practices as a Christian. As a result, Plaintiff would bring in his own food if he was assigned to work on Good Friday which, at most, occurred on two occasions during his employment at CEC.
Christian and Muslim Services for Residents — Plaintiff asserted that during the Muslim religious services that were held for residents, a few Muslim employees would "[s]tick their head" in the room and pray for a few minutes." (Plaintiff Dep. T209: 15-25; T210:14-19). Plaintiff contends that Christian employees were not allowed to participate during the Christian services, but he conceded that he would nonetheless "enjoy the . . . services" when assigned to monitor them. During his deposition, Plaintiff added that during Ramadan, a few Muslim employees would sit with the residents and break the fast when the holiday was over. (Plaintiff Dep., T222:19-T225:2). Plaintiff testified that he did not know if other employees participated in Christian services. (T210:15-T212:2). Reading Religious Materials on Break mdash; Plaintiff contends that Muslim employees would sometimes read the Koran at work while on break, but Odom told Plaintiff to read the Bible in his car. Plaintiff assumed that Odom saw the employees reading the Koran because Odom walked past the window in his office area.
The Calendar Contained Both Christian and Muslim Holidays — Calendars were posted in CEC's residential units. Certain Christian holidays, such as Christmas and Easter, were already preprinted on the calendar by the publisher while, according to Plaintiff, the Muslim holiday of Eid was handwritten on the calendar. Plaintiff found this practice objectionable because, in his view, the handwritten notation of the Muslim holidays showed CEC's "favoritism" toward the Muslim faith. The fact that Muslim holidays were handwritten on the calendar ensured that residents would be aware of both Christian and Muslim upcoming religious observances and therefore Plaintiff's contention on this point is without merit.
Overall, taking the totality of the circumstances into consideration and viewing the facts in the light most favorable to Plaintiff, the Court finds that a reasonable factfinder could find that Defendants discriminated against Plaintiff based on his religion.
B. Alleged Harassment Based Upon Race
Plaintiff's complaints regarding his harassment based on his race were directed at Odom and Leslie, both of whom are African-American, while Plaintiff is Caucasian. The complaints involve the following circumstances: (1) the internal investigation of plaintiff; (2) the purported "No Spanish Rule"; and (3) instructions given to Plaintiff regarding his supervision of residents. Internal Investigation — Plaintiff was assigned to work the Pass Point screening system, a device that examines the resident's eyes to determine if he is under the influence of narcotics. Plaintiff allegedly heard "rumors" that he was being taken off the Pass Point assignment because residents reported that he took $100.00 "payoffs" from residents to destroy the urine samples if they were positive. In this litigation, Plaintiff asserts that he was taken off Pass Point and given another assignment because of his race and religion and as a vehicle to harass him. With respect to this episode, Plaintiff has theorized that he was under investigation for showing favoritism to the Hispanic community at Logan Hall.
Purported "No Spanish" Rule — Plaintiff contends that Odom showed "hostility" toward the Spanish language because he wanted residents and employees to speak English at the facility. Plaintiff testified that he never heard Odom speak Spanish. A workplace rule requiring employees to speak English (i.e. an "English-only" rule) can establish the basis for a discrimination claim only if it is "used as a surrogate for discrimination on the basis of national origin, ancestry or any other prohibited grounds." Rosario v. Cacace, 337 N.J. Super. 578, 585-86 (App. Div. 2001). Defendants have failed to demonstrate that there is no evidence that Odom gave his instruction as a "surrogate for discrimination." A reasonable factfinder could find the "No Spanish" Rule discriminatory.
Supervision of Residents: According to Plaintiff, Odom and Leslie told Plaintiff that he showed favoritism toward Hispanic residents, such as giving them permission to make telephone calls or stay up late. Even though Defendants argue that these statements were merely constructive criticism, a factual question remains regarding whether, in fact, these statements were used to harass Plaintiff.
Overall, a genuine issue of material fact exists as to whether Defendants created a hostile work environment and discriminated against Plaintiff based on his race.
C. Alleged Harassment Based Upon Race and Religion
In addition to the specific events elucidated above, Plaintiff's Complaint points to other instances involving Defendants harassing him because of both his race and religion.
Training and Seminars mdash; Plaintiff contends that CEC deprived him of training classes to harass and discriminate against him based on his race and religion. The facts show that Plaintiff's fluctuating work schedule as well as Plaintiff's personal preferences prevented him from attending the Certified Alcohol and Drug Counselor (CADC) training. The changes in Plaintiff's work schedule were both initiated by Plaintiff (on two occasions) and by CEC. When Plaintiff was assigned to work Saturdays (the days on which the training took place) he did not attempt to change his work hours so that he could attend CADC classes. Plaintiff was on the verge of receiving the CADC training in November 2006 when CEC was making arrangements for a new class and CEC placed him "at the top of the list for the alternates." The Court finds that Defendants fail to meet their burden under theBrill framework because a reasonable factfinder could find that Defendants discriminated against Plaintiff in this manner.
Alleged Denial of Vacation Time- Plaintiff contends that CEC denied him vacation time because of his race and religion. According to CEC's procedures, employees are given vacation time on a first-come, first-serve basis. Defendants contend that CEC did not grant Plaintiff's requests for the days in question because other employees requested the day off before Plaintiff submitted his request or there was not enough coverage at the facility. Plaintiff argues, however, that on at least one occasion his name was crossed off the vacation list and replaced with a Muslim employee's name, contrary to CEC's first-come, first-serve policy. Therefore, a factual issue exists on this point as well.
Plaintiff's Salary — Plaintiff contends that CEC did not give him the wage increases he deserved based on his religion and race. The record shows that Plaintiff was given a wage increase when he was temporarily promoted to the acting supervisor position in 2005. Also, in May 2006, Plaintiff received a $0.14/hour wage increase, while other employees received larger increases. At his deposition, Plaintiff testified that he spoke with Odom about his salary and Odom responded that he did not have control over salary budgets and wage increases. Plaintiff also spoke with Leslie and she stated that wage increases are related to work performance and performance evaluations. Here, a factual dispute exists as to whether the discrepancies in pay were discriminatory.
Mandatory Overtime mdash; Plaintiff asserts that if a number of employees called out sick, he was sometimes required to work double shifts to ensure that the facility had enough coverage. Plaintiff conceded during his deposition that other employees did work double shifts if coverage was needed; however Plaintiff maintains that the records were "manipulated" so that he was assigned to work the extra shifts more frequently than his coworkers.
Q: Was it your understanding that other people would have to work double shifts in order to cover the facility?
A: Oh yes.
Q: Okay. So how was that different from what happened to you?
A: A lot of times I — I'll say, well I worked — I worked yesterday, it's so-and-so's turn. And they'll say, Well he can't stay, you got to stay.
(Plaintiff Dep., T298:9-T299:4). This claim could cause a reasonable factfinder to find discrimination; accordingly, a genuine issue of material fact exists on this point.
D. Alleged Harassment Based Upon HIV Status
Plaintiff testified that Odom and Leslie occasionally made passing comments about residents who, based upon their physical appearances, appeared to be infected with HIV. According to Plaintiff, Odom and Leslie made remarks such as, "[H]e must have HIV, look at him. They don't stop that behavior. They look like they are dying." Plaintiff testified that these comments were made on perhaps four or five occasions.
The record shows that Plaintiff told a coworker, Ms. Muhammad about his HIV condition, but he never told Leslie. Plaintiff admitted in his deposition that he had no reason to believe that Leslie knew about his HIV condition. Plaintiff testified that he told Odom about his medical condition.
Defendants assert that these comments were not severe, frequent or pervasive, and point to the fact that they were not directed at Plaintiff. However, viewing all facts in favor of the Plaintiff, a rational factfinder could conclude that Odom and Leslie made these comments to create a hostile work environment for Plaintiff based on his medical condition. A reasonable person could conclude that the conditions of employment changed or that the workplace became hostile or abusive.
Moreover, Defendants contend that Plaintiff's disability claim should be dismissed because Plaintiff failed to demonstrate that the employer knew about the employee's condition, as required by the court in Illingsworth v. Nestle U.S.A., Inc., 926 F.Supp. 482 (D.N.J. 1996). In Illingsworth, the court found that under the LAD as well as the federal discrimination statutes, "the plaintiff must demonstrate that the defendant employer knew of the disability to state a prima facie case of unlawful discharge."Id. at 489 ( citing Geraci v. Moody-Tottrup International, Inc., 82 F.3d 578 (3d Cir. 1996). Since the employer in Illingsworth did not know about the plaintiff's handicap, the court entered summary judgment. Here, Plaintiff asserts that Odom knew about his HIV status and that is sufficient to preclude summary judgment.
Taking the totality of the circumstances in the light most favorable to Plaintiff, the Court finds that Plaintiff's hostile work environment claim survives summary judgment. A reasonable factfinder could find Defendants' acts, in toto, constituted severe and pervasive conduct that affected Plaintiff's work environment.
3. Failure to Promote Claim
Plaintiff contends that he was not afforded promotional opportunities because of his race and religion. Specifically, Plaintiff has alleged that fifteen (15) other employees were promoted ahead of him because they were African-American or Muslim. Defendants' contend that Plaintiff's failure to promote claim should be dismissed because other employees had better qualifications and work records.
To establish a failure to promote claim under the LAD, Plaintiff must demonstrate: (1) the employee is a member of a protected class under the statute; (2) he was qualified for the position sought; (3) he was denied the promotion; and (4) others with similar or lesser qualifications were promoted. Casseus v. Elizabeth General Medical Center, 287 N.J. Super. 396, 406 (App. Div. 1996); Peper v. Princeton University Board of Trustees, 77 N.J. 55 (1978). If the Plaintiff submits those proofs, the employer must articulate a legitimate non-discrimatory reason for the rejection of the Plaintiff. Finally, if the employer articulates such a reason, Plaintiff must show that the employer's stated reason was a pretext for unlawful discrimination. Casseus, 287 N.J. Super. at 405.
In this case, seven of the fifteen employees identified by Plaintiff were promoted to their supervisory positions at CEC before Plaintiff joined the company; as such, they cannot be included in Plaintiff's failure-to-promote claim. For the remaining eight employees, their records indicate that they had strong performance and job skills that justified their promotions. However, a reasonable factfinder could conclude that Plaintiff had similar skills and that he was not promoted for a discriminatory reason. Defendants claim that CEC's subsequent discipline, demotion or termination of some of these same African-American and Muslim employees demonstrates that CEC's employment decisions were not motivated by unlawful criterion, but Defendants actions subsequent to the promotions at issue are irrelevant. Consequently, summary judgment is not granted on this issue.
4. Wrongful Termination Claim
Plaintiff asserts a wrongful termination claim against Defendants. Defendants contend that this claim should be dismissed because Plaintiff has not satisfied the prima facie elements of an LAD claim and there is no evidence that CEC's employment decision was a pretext for discrimination. To establish a discriminatory discharge case under the LAD, a plaintiff must show the following elements: (1) he was a member of a protected class; (2) he was performing his job at a level that met the employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) other employees who were not in the protected class did not suffer similar adverse employment action.El-Sioufi v. St. Peter's Univ. Hosp., supra, 382 N.J. Super. at 167 (App. Div. 2005); Maher v. New Jersey Transit R.O. Inc., 125 N.J. 455, 480-81 (1991).
If the employee satisfies that initial burden, the case proceeds to the second stage wherein the employer has the burden of production (but not the ultimate burden of proof) to articulate a legitimate, nondiscriminatory reason for its decision.El-Sioufi, 382 N.J. Super. at 166. If the employer produces such evidence, the analysis proceeds to the third stage wherein the employee has the burden to prove by the preponderance of the evidence that the employer's stated reason was not the true reason for the employment decision, but was pretext for discrimination.Id.; Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449-50. To show pretext a plaintiff "must demonstrate that the employer was motivated by discriminatory intent."El-Soufi, 382 N.J. Super. at 173; Viscik v. Fowler Equip. Co., 183 N.J. 1, 13 (2002) ( citing Erickson v. Marsh McLennan Co., 117 N.J. 539, 561 (1990)).
Defendants contend that Plaintiff's claim should be dismissed because he cannot meet the fourth prong of the prima facie test, which requires a showing that other employees who were not in the protected class did not suffer adverse employment action. It is Plaintiff's burden to prove that CEC failed to take action when African-American and Muslim employees had performance difficulties or violated CEC policies. The record is clear that some African-American and Muslim employees were disciplined, demoted and terminated when their performance suffered or they engaged in misconduct.
In November 2006, Odom demoted Robert Bolden, who was African-American and Muslim, for various job performance problems (Plaintiff Dep, T64:22-T65:3; Odom Memorandum dated November 14, 2006). In July 2007, Odom gave a final warning to Robert Williams, an African-American, for releasing a resident without the appropriate documentation. (Plaintiff Dep., T63:23-25; Odom Memorandum dated July 3, 2007). In October 2007, CEC terminated Rahmid Karriem who was African-American and Muslim, due to performance problems. (Plaintiff Dep., T63:18-19; T. Mallard Memorandum dated October 22, 2007). In April 2008, Leslie terminated Timothy Barnett, an African-American because he had improper contact with residents. (Plaintiff Dep., T63:20-22; L.Leslie Letter dated April 11, 2008). In May 2008, Odom terminated Tawan Griffin, an African-American, because she failed to follow security procedures and did not monitor the activity of residents. (Plaintiff Dep., T62:21-23; T. Odom dated May 5, 2008).
The record is undisputed that CEC meted out disciplinary action when it was warranted, and Plaintiff has failed to demonstrate that the fact that he was Caucasian, Hispanic and HIV positive affected his termination. Accordingly, summary judgment is granted in favor of Defendants on this claim and the court need not determine whether Plaintiff proved that his termination was pretext.
5. Retaliation Claim
Plaintiff asserts a retaliation claim against Defendants. Defendants contend that this claim should be denied because there was no adverse employment action and no causal connection exists between the alleged protected activity and the termination. The LAD makes it unlawful for an employer to retaliate or take "reprisals" against an employee because he has opposed practices that are prohibited by the statute. N.J.S.A. 10:5-12(d). To establish a retaliation claim under the LAD, an employee must demonstrate the following elements: (1) he engaged in protected activity; (2) the protected activity was known to the employer; (3) an adverse employment action was taken against him; and (4) there was a causal connection between the protected activity and the adverse employment action. Velatzas v. Colgate-Palmolive Company, 109 N.J. 189, 193 (1988); Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995); El-Sioufi, 382 N.J. Super at 174-75.
Plaintiff claims that he engaged in protected activity by complaining to CEC management about the alleged harassment, and CEC retaliated by not enrolling him in the CADC classes, requiring him to work overtime, conducting an internal investigation into the report that he discarded urine samples, etc., which eventually culminated in his discharge. Only his termination constituted an adverse employment action. An adverse employment action must be "sufficiently severe or pervasive to have altered plaintiff's conditions of employment in an important and material manner."El-Sioufi, 382 N.J. Super. at 176, ( quoting Cokus v. Bristol-Myers Squibb Co., 362 N.J. Super. 245, 246 (App. Div. 2003)). Employment actions that do not result in a "tangible detriment, such as salary reduction or job transfer," do not rise to the level of an adverse employment action. Cokus, 362 N.J. Super. 366, 278 (Law. Div. 2002), aff'd, 362 N.J. Super. at 245. A termination from employment therefore can qualify as an adverse employment action.
Defendants contend that Plaintiff has been unable to show a causal connection between his protected activity and his discharge. According to Defendants, Plaintiff was discharged due to his inadequate job performance, particularly with respect to the unauthorized release of the resident in November 2006 and ignoring his supervisor's instructions in February 2007. Plaintiff, however, has put forth enough facts regarding the circumstances surrounding his discharge to cause a reasonable factfinder to conclude that he was terminated for a discriminatory reason. As such, summary judgment is denied on this claim.
6. Disparate Impact Claim
Plaintiff has brought a disparate impact claim against CEC. Defendants contend that that the disparate impact claim should be dismissed because Plaintiff has not produced any statistical evidence or data showing a disproportionate impact upon protected class members. A disparate impact claim "involves employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Peper v. Princeton University Board of Trustees, supra, 77 N.J. at 81-82 ( quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-336 (1977);Esposito v. Township of Edison, 306 N.J. Super. 280, 289 (App. Div. 1997), certif.den. 156 N.J. 384 (1998).
In order to establish a prima facie case of disparate impact discrimination, "a plaintiff is required to demonstrate that application of a facially neutral standard has resulted in a significantly discriminatory hiring pattern." Newark Branch, N.A.A.C.P. v. Town of Harrison, N.J., 940 F.2d 792, 798 (3d Cir. 1991) ( citing Dothard v. Ralinson, 433 U.S. 321, 329 (1977)). An example of a disparate impact claim is when an employment practice, such as the use of a test or other seemingly neutral criterion, has a disproportionate impact upon a protected class. "An adverse effect on a single employee or even a few employees is not sufficient to establish a disparate impact."Massarky v. General Motors, 706 F.2d 111, 121 (3d Cir. 1983),cert. den. 464 U.S. 937 (1983).
The New Jersey Supreme Court has held that the proofs required for a disparate impact claim are based upon those required under federal law. Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391, 400 (2005) ( citing Esposito v. Township of Edison, supra, 306 N.J. Super. at 289-90;42 U.S.C. § 2000e-s(k)(1). The U.S. Supreme Court emphasized that a plaintiff who brings a disparate impact claim must do more than simply show statistical disparities. Watson v. Fort Worth Bank Trust, 487 U.S. 977, 994 (1988). "Especially in cases where an employer combines subjective criteria with the use of a more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Id. Moreover, "[o]nce the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Id.
Furthermore, "[n]or are courts or defendants obliged to assume that plaintiff's statistical evidence is reliable."Watson, 487 U.S. at 997. Typical examples of unreliable statistical evidence "include small or incomplete data sets and inadequate statistical techniques." Id. The burden of proof on plaintiffs in a disparate impact case is a heavy one. As a result, plaintiffs typically retain expert witnesses to establish through statistical evidence that a particular employment practice has a disparate impact and establishes a cause of action. See e.g.Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980);Franci v. Avco Corp., Avco Lycoming Div., 538 F. Supp. 250 (D. Conn. 1982); E.E.O.C. v. Hickman Mills Consol. School Dist. No. 1, 99 F. Supp. 2d 1070 (W.D. Mo. 2000);Moynihan v. Massachussets Mut. Life Ins. Co., Inc., 773 F. Supp. 502 (D. Mass. 1991). In the present matter, Plaintiff has not come forward with the proofs needed for a disparate impact claim. Plaintiff argues that he, individually, was treated differently because of his race, national origin, religion and medical condition, but has not produced any statistical analysis or expert testimony that CEC's actions had a disproportionate impact upon employees who were Caucasian, Hispanic, Christian and HIV positive. In the absence of such a showing, the Court dismisses Plaintiff's disparate impact claim as a matter of law.
7. "Woolley" Contract Claim
Plaintiff's Complaint alleges that the CEC employment manual created a contract of employment pursuant to Woolley v. Hoffman-La Roche, Inc., 99 N.J. 284 (1985). Defendants contend that Plaintiff's "Woolley" contract claim should be dismissed because Plaintiff was an at-will employee. Defendants point to Plaintiff's admission that he had no guarantee of continued employment and the employer's disclaimers as proof of this assertion.
As a general matter, an employment manual may form the basis for an implied promise or contract of employment. Importantly, however, the New Jersey Supreme Court created an exception to this principle and held that a promise of employment contained in an employment manual will not create a contractual obligation if there is a "clear and prominent disclaimer" in the document. Woolley, 99 N.J. at 286; Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 392-93 (1994).
The employment manual in question, which was signed by both parties on October 5, 2004 contained the following disclaimer:
The contents of this Handbook are presented for information purposes only and nothing herein constitutes a promise by CCC to give or maintain any benefit or to continue for any period the employment of any person. The provisions of this Handbook are not to be construed as a promise or contract between CCC and its employees since all employment is "at will." No supervisor or representative of CCC has any authority to enter into or authorize any agreement, contract or guarantee of employment either verbally or in writing with the exception of the President/CEO. CCC RETAINS THE RIGHT TO TERMINATE THE EMPLOYMENT OF ANY PERSON AT ANY TIME WITH OR WITHOUT CAUSE OR NOTICE, FOR ANY REASON NOT OTHERWISE PROHIBITED BY LAW.
I have read the above law and acknowledge my agreement to this "Statement of Employment Conditions." I have also been given a copy of the CCC Employee Handbook. I have read it and understand its provision. (emphasis and caps in original).
The disclaimer makes clear that Plaintiff's employment was terminable at will.
In addition to the foregoing disclaimer, Plaintiff and CEC signed a Handbook Receipt Form which contained the following statement: "The Handbook should be used as a reference for questions you may have during your employment but is not to be interpreted as a contract of employment."
A few weeks later, CEC forwarded a letter to Plaintiff which outlined his benefits and restated that his employment was "at will" and "[n]othing in this offer letter or in our policies or procedures shall vest any right or create any guarantee of employment for any period or create or contribute in any way to a legal cause of action against CEC." Plaintiff signed this letter on October 28, 2004.
The employment manual and other related documents contained unmistakably clear, prominent and unequivocal disclaimer language. They repeatedly stated that they do not constitute a contract or promise of continued employment and state that Plaintiff's employment is at will. Consequently, the Court grants summary judgment in favor of Defendants on this issue and dismisses Plaintiff's "Woolley" contract claim as a matter of law.
8. Intentional Infliction of Emotional Distress Claim
Plaintiff's Complaint also contains an intentional infliction of emotional distress claim. Defendants contend that this claim should be dismissed because Plaintiff has failed to produce evidence of extreme or outrageous conduct. In order to establish a claim for intentional infliction of emotional distress, a party must show the following: (1) conduct that is extreme and outrageous; (2) intent to commit both the act itself and severe emotional distress; (3) proximate cause; and (4) the emotional distress was "so severe that no reasonable man could expect to endure it."Buckley v. Trenton Saving Fund Society, 111 N.J. 366-68 (1988). In order to establish a claim for intentional infliction of emotional distress, the defendant's conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community." Id. at 368.
Courts have been particularly reluctant to allow intentional infliction of emotional distress claims to proceed in employment cases. Pitak v. Bell Atlantic Network Svcs., Inc. 928 F.Supp. 1354, 1371 (D.N.J. 1996); Carney v. Dexter Shoe Co., 701 F.Supp. 1093, 1104 (D.N.J. 1988). Courts have also noted that wrongful discharge and employment-related claims rarely satisfy the level of outrageous conduct that is needed for an intentional infliction of emotional distress claim. Fregara v. Jet Aviation Business Jets, 764 F.Supp. 940, 956 (D.N.J. 1991). In Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988), the Third Circuit applying New Jersey law, recognized that "it is extremely rare to find conduct in the employment context which will rise to the level of outrageousness to provide a basis for recovery."
Within this framework, this Court dismisses Plaintiff's claim. Plaintiff fails to present any information to cause a rational factfinder to believe that he suffered severe emotional distress.
9. Common Law Claims
Plaintiff also asserts several common law claims, which, according to Plaintiff's theory, relate to the alleged underlying discrimination. The Complaint alleges the employment manual created a Woolley contract that was subsequently breached by CEC when it took part in the discrimination, harassment and similar conduct. Plaintiff also asserts that CEC violated public policy by creating a "hostile work environment," engaging in harassment and wrongfully terminating him. Finally Plaintiff has brought an intentional infliction of emotional distress stemming from the alleged discrimination and harassment. Defendants contend that these claims should be dismissed because they are supplemental and preempted by the statutory remedy provided by the LAD.
Supplemental common law causes of action are barred and preempted by the LAD. Catalane v. Gilian Instrument Corporation, 271 N.J. Super. 476, 492 (App. Div. 1994), certif.den. 136 N.J. 298 (1994); DeCapua v. Bell Atlantic-New Jersey, Inc., 313 N.J. Super. 110, 127-28 (Law Div. 1998). The court inCatalane makes clear that supplemental claims are impermissible and should be summarily dismissed at this juncture. This Court agrees with Defendants that Plaintiff presents common law causes of action that are supplemental in nature and duplicate the underlying LAD claims. Consequently, to the extent that the claims have not already been dismissed by this court, the supplemental claims are preempted by the statutory remedy embodied in the LAD and barred as a matter of law.
10. Claim Against Trabucco
Plaintiff has brought a claim against Joseph Trabucco, who worked as the Director of Logan Hall. Defendants contend that Plaintiff's claims against Trabucco should be dismissed because Plaintiff has no evidence to show that he took part in any discrimination or harassment.
Under the LAD, individual liability requires aiding a party who performs a wrongful act that causes an injury, awareness or an overall illegal activity, and knowing and substantial assistance in the principal violation. Tarr v. Ciasulli, 181 N.J. 70, 84 (2004); N.J.S.A. 10:5-12(e). However, under common law claims, liability can be found where a defendant failed to act. For example, in Gardenhire v. New Jersey Mfrs. Ins. Co., 333 N.J. Super 219 (2000), the Appellate Division explicitly made omissions a basis for liability. Also, inL.W. ex rel. L.G. v. Toms River Regional Schools Bd. of Educ., 189 N.J. 381 (2007) certain school officials' failure to stop homophobic conduct toward the plaintiff was a basis for liability.
In the present matter, Plaintiff admitted in his deposition that he had no information to show that Trabucco discriminated against him or harassed him. However, Joseph Trabucco was the Director of Logan Hall during the time period in question. Viewing the evidence in the light most favorable to the Plaintiff, a reasonable factfinder could find liability under a common law theory, but not under a LAD theory. Thus, notwithstanding the Court's dismissal of Plaintiff's other common law claims in section nine (9) of this opinion, Defendants' summary judgment motion is denied as to the common law claims asserted against Joseph Trabucco.
11. Punitive Damages
Plaintiff's Complaint contains a claim for punitive damages. Punitive damages are only awarded in exceptional cases, such as when there is evidence of both: (1) actual participation in the wrongful actions on the part of upper management; and (2) the Defendant's actions are especially egregious. Quinlan v. Curtiss-Wright Corporation, 409 N.J. Super. 193, 215-216 (App. Div. 2009);Rendine v. Pantzer, 141 N.J. 292, 313-14 (1995). The New Jersey Supreme Court has held that cases arising under the LAD warrant punitive damages only when there is "intentional wrongdoing in the sense of an `evil-minded act' or an act accompanied by a wanton and willful disregard of the rights of another." Id. at 314.
A number of courts have recognized the high standard that has been set for punitive damages claims and held that a mere violation of the LAD is insufficient to warrant punitive damages.See e.g. Catalane, supra, 271 N.J. Super. at 500-501 ("a plaintiff must show more than violation of the statute to be entitled to punitive damages") ( citing Weiss v. Parker Hannifan Corp., 747 F.Supp. 1118 (D.N.J. 1990)); Murray v. Newark Housing Authority, 311 N.J. Super. 163, 181 (Law Div. 1998) ("the mere finding of an intentional act of discrimination is insufficient to support a punitive damages award"); Miller v. Beneficial Mgmt. Corp., 855 F.Supp. 691, 718, n. 33 (D.N.J. 1994) (the "mere violation of [the LAD] is an insufficient basis on which to award punitive damages"). Moreover under the Punitive Damages Act, punitive damages may be awarded only if a plaintiff proves the necessary elements by "clear and convincing evidence."N.J.S.A. 2A:15-5.12(a).
The record in this matter makes clear that Defendants have not engaged in conduct that provides a basis for a punitive damages award. Although Plaintiff was dissatisfied with a number of CEC's workplace procedures and employment decisions, there is no evidence that any of the Defendants committed "especially egregious" acts that reflected a willful disregard of Plaintiff's rights, let alone evidence that meets the clear and convincing standard. Consequently, the punitive damages claim is dismissed as a matter of law.
III. CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is granted as to the common law claims, except those asserted against Defendant Trabucco, the disparate impact claim, "Woolley" contract claim, intentional infliction of emotional distress, and punitive damages claim. Defendants' motion is denied as to the hostile environment claim, the failure-to-promote claim, and the retaliation claim under the LAD.