NUNESS v. SIMON AND SCHUSTER, INC. et al
Filing
32
OPINION. Signed by Judge Jerome B. Simandle on 6/29/2018. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TYSHANNA NUNESS,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 16-2377(JBS/KMW)
v.
SIMON AND SCHUSTER, INC., et
al.,
OPINION
Defendants.
APPEARANCES:
Lance D. Brown, Esq.
Toni L. Telles, Esq.
LANCE BROWN AND ASSOCIATES, LLC
1898 Route 33
Hamilton, NJ 08690
Attorneys for Plaintiff
Paul C. Evans, Esq.
Andrew Ashworth Napier, Esq.
MORGAN, LEWIS & BOCKIUS LLP
1701 Market St.
Philadelphia, PA 19103
Attorneys for Defendants
SIMANDLE, District Judge:
I.
INTRODUCTION
Plaintiff Tyshanna Nuness (“Plaintiff”), filed this law
suit against her previous employer, Simon & Schuster, Inc.
(“Defendant”), wholly owned by CBS Corporation (collectively
“Defendants”), as well as John Does 1-100 and ABC Corps 1-100,
alleging racial harassment, constructive discharge, and
retaliatory discharge under the New Jersey Law Against
Discrimination (“NJLAD”). [Docket Item 20.]
Before the Court is Defendant’s Motion for Summary Judgment
on all claims pursuant to Fed. R. Civ. P. 56. [Docket Item 25.]
Plaintiff opposes the motion for summary judgment [Docket Item
28].
The principal issues presented by Defendant’s motion are
whether Plaintiff can establish a prima facie case for racial
harassment by (1 presenting evidence of severe or pervasive
conduct; and, (2) presenting evidence that Defendants are
vicariously liable for the alleged harassment. Additionally,
before the Court is also the question of whether Plaintiff has
proffered evidence to create a genuine dispute of material fact
that a reasonable jury could find meets the high burden of
showing constructive discharge; and if Plaintiff experienced an
adverse employment action, whether there is the requisite causal
connection to racial harassment in order to establish
retaliation.
For the reasons set forth below Defendant’s Motion for
Summary Judgment will be denied.
II.
BACKGROUND
A. Factual Background
1. Plaintiff’s Employment and Defendant’s NonDiscrimination and Anti-Harassment Policy
2
Plaintiff is an African American female who was previously
employed as a Line Picker with Defendant, beginning in December
2014. (Def. SMF ¶ 1-2.) On December 29, 2014, Plaintiff began
working the night shift, Sunday to Thursday from 11:00 p.m. to
7:00 a.m. (Pl. Dep. at 27:10-21.) In this role, Plaintiff
“filled cartons with books to fulfill customer orders,” and her
immediate supervisor was Marcellus Wilson (“Wilson”). (Def. SMF
¶ 2; Pl. Dep. at 31:3-10.)
While employed with Defendants, Christopher Hankins
(“Hankins”), a Caucasian male, was one of Plaintiff’s co-workers
and fellow Line Picker within the same department as Plaintiff.
(Def. SMF ¶ 2; Pl. Dep. at 41:12-14.) Hankins was in his first
year of employment with Defendant. (Pl. SMF ¶ 37.) He attended
the same meetings as Plaintiff, and they performed the same
jobs. (Pl. Dep. at 41:20-23.) At times, Plaintiff and Hankins
were on the same two to three-person team while working. (Id. at
41:24-42:2.)
According to Plaintiff, one week before Hankins made a
racial comment to her, she heard Hankins making inappropriate
sexual jokes and was aware of other inappropriate comments
Hankins made. But prior to March 12, 2015, Hankins did not make
inappropriate comments to Plaintiff, nor did Plaintiff complain
of specific comments. (Pl. SMF ¶ 51-42; Pl. Dep. 74 21-22.)
Plaintiff did, however, complain to Wilson about Hankins “a
3
number of times[,]” stating he was “erratic,” and further
questioned his employment with Defendants. (Def. SMF ¶ 7; Pl.
SMF ¶ 53.) Plaintiff stated that she heard Hankins discussing
how Defendants “won’t fire [him]” and that he can say what he
wants because “they needed his father’s signature.” (Pl. Dep. at
75:15-24-76:8.) Defendant alleges, and Plaintiff does not
dispute, that Defendant’s Human Resources Department did not
receive any formal complaints about Hankins regarding
inappropriate comments or conduct prior to Plaintiff’s complaint
on March 12, 2015. (Def. SMF ¶ 6; Tuccillo Dep. at 45:18-46:3.)
Plaintiff does argue that “plenty of reports concerning
[Hankins’s] bothersome conduct [were] made to a supervisor
(although these reports were not turned over).” [Docket Item 282 at 16.]
Pursuant to Defendants’ policies, problems with an employee
during his or her first year of employment with Defendant
usually led to termination. (Tuccillo Dep. at 122:4-15; Pl. Ex.
H.) Specifically, “violations of attendance and performance” are
“situations that would warrant somebody within their first year
to be terminated without written warning,”; notwithstanding this
fact, Defendant’s HR representative testified that situations of
racial discrimination and harassment warrant warnings rather
than termination without written warning. (Tuccillo Dep. at
122:22-123:23; Pl. SMF ¶ 61; Pl. Ex. H.)
4
Despite this distinction, Defendants argue that they have
and maintain a “zero tolerance policy towards racial
discrimination.” (Pl. SMF ¶ 54.) The “Non-discrimination and
Anti-Harassment Policy (“the Policy”) “‘strictly prohibits
harassment’ on the basis of any protected characteristic” and
prohibits retaliation. (Def. Ex. C.) The policy specifically
provides that:
CBS is committed to a work environment in which all
individuals are treated with respect and dignity. Each
individual has the right to work in a professional
atmosphere that promotes equal employment opportunities
and prohibits discriminatory practices, including
harassment.
Therefore,
CBS
expects
that
all
relationships among persons in the workplace will be
business-like
and
free
of
bias,
prejudice
and
harassment.
(Def. Ex. C at 1.) “The policy outlines the procedure for
reporting
an
incident
retaliation.” (Def.
of
harassment,
discrimination
or
SMF ¶ 30.) The policy also explains who
employees should report such conduct to, which includes but
is not limited to immediate supervisors and Human Resources
(“HR”), before the conduct “becomes severe or pervasive”
(Def. Ex. C at 2.) According to the policy, after a complaint
is
made,
a
subsequent
investigation
will
ensue,
which
includes “speaking to the alleged harasser and complainant,
along with any witnesses.” (Def. Ex. C at 3.) After the
investigation, HR is to notify the complainant that the
investigation concluded, and what action was taken as a
5
result. Def SMF ¶ 32.) Employees who engage in harassment are
disciplined and may be terminated. (Def. SMF ¶ 28.)
Defendant informs all its employees about the policy and
they must sign off on it. (Def. SMF ¶ 34.) Accordingly,
Plaintiff was aware of and received a copy of this policy, and
further “signed acknowledgement.” (Def. SMF ¶ 35-36.)
2. The Racial Harassment Incident
At the end of Plaintiff’s shift, on March 12, 2015, as
Plaintiff, her coworker Tanisha Williams (“Williams”), and
Hankins were getting ready to go home and during a break time,
Plaintiff and Williams were engaged in conversation when Hankins
approached the two and interrupted their conversation. (Pl. Dep.
at 44:1-44:12; Tuccillo Dep. at 62:4-10.) Plaintiff testified
that Hankins interrupted saying something in the nature of,
“You’re cute”; Plaintiff did not respond. (Pl. Dep. at 44:1344:17.) Hankins repeated himself but added an additional
thought: “[O]h, you’re a cute little nigglet.” Id. at 44:1944:20. Plaintiff asked Hankins, “What is that supposed to mean?”
and Hankins responded, “You know how pigs are cute, like a pig
nigger.” Id. at 44:21-45:1. Tanisha was present for this
conversation (Pl. SMF ¶ 49; Tuccillo Dep. at 59:24-53:16), and
subsequently confirmed that Hankins called Plaintiff a “niglet.”
(Pl. Ex. L. at 2.)
6
Plaintiff did not say anything else to Hankins. She walked
away and went home. (Pl. Dep. at 45:2-45:5.) Plaintiff and
Hankins may have been sitting only “a table or two apart” when
the comment was made. (Tuccillo Dep. at 62:4-10.)
After Plaintiff went home, she “couldn’t go to sleep” and
called Wilson, her supervisor, that same morning to report what
Hankins had said. (Pl. Dep. 45:8-45:14.) Wilson told Plaintiff
“that it was above his pay grade and [she] needed to take it to
HR.” Id. at 45:15-45:16. Plaintiff stayed up, waiting for
someone from HR to be in the office, and called HR that same
morning. Id. at 47:18-47:23; Def. SMF ¶ 9; Pl. SMF ¶ 56.
Plaintiff spoke with Jessica Rivera in HR and specifically
notified her that this comment was racial and offensive to her.
(Pl. Ex. L at 1.) She also reported Williams as a witness to the
incident, and HR notified Plaintiff it would be commencing an
investigation into the matter. Id.
3. Defendant’s Investigation of the Racial Comment
Defendant’ Director of HR, Jackie Tuccillo (“Tuccillo”),
approved Plaintiff’s absence from work for the two days
immediately following Hankins comment while it investigated the
incident. (Def. SMF ¶ 10.) Rivera advised Plaintiff of this when
Plaintiff first notified HR on March 11, saying that “while they
were looking into what happened, that [Plaintiff] didn’t have to
7
come in and they would let [her] know what was going on.” (Pl.
Dep. at 50:7-50:10.) Plaintiff was not paid for those two days.
Id. at 50:14-50:20.
As part of the investigation, HR contacted Williams to
question her about the incident she witnessed. (Pl. Ex. L at 1.)
Without prompting, Williams indicated that she knew what HR was
referring to, stating, “[Y]es, Chris!” Id. Williams explained
that Hankins was initially saying “some sexual remark or joke
to” Plaintiff when he said he had a “funny joke for ya’ll.” Id.
at 2. According to Williams, Hankins proceeded by stating “you
know how you see a pig and you say pig[l]et?! I can’t say the
‘N’ word so I’m gonna say little niglet.” (Id. at 2.) Williams
stated that she heard Plaintiff say, “What,” but nothing after
that. Id. Williams additionally provided further information
about Hankins’ behavior with other employees, where she heard
him speak “inappropriately on several occasions.” Id. According
to Tanisha, Hankins was “constantly referring to females as
bitches and [wa]s always using foul and inappropriate language.”
Id.
During this investigation, HR also contacted Hankins
personally. Id. When HR informed him that the call was in
reference to a formal complaint mentioning him, his immediate
understanding was that it regarded a sexual joke about a sex
position, that he repeated in the presence of two female
8
employees (not Plaintiff and Williams). Id. HR explained that
such a comment was “inappropriate . . . and not tolerated,” and
proceeded to ask if he made any racial comments. Id. Hankins
continuously denied the claim that “he ever ma[de] any racial
comment or joke,” but described medications he took and how he
sometimes could not remember things. Id. Hankins was notified he
would be suspended pending investigation and was instructed that
he not return to work, until notified. Id. Rivera ultimately
recommended that Hankins be suspended for “3-5 days” as well as
that he “be placed on a final warning.” Id. at 3.
Defendant suspended Hankins from work for three days and
issued a “final warning that further inappropriate conduct would
lead to discipline, including potential termination.” (Def. SMF
¶ 11.) Defendant reiterated its policy to Hankins, making clear
that using the term “nigglet” is a violation of such. (Def. SMF
¶ 11; Tuccillo Dep. 12:4-7; Pl. Ex. I.)
4. Plaintiff’s Return to Work
When Plaintiff had not heard back from HR, she called on
March 15 and was informed that Hankins had admitted to making
the remark and that they “took care of everything.” Id. at 50:124-51:4. Plaintiff understood this to mean Hankins had been
terminated. Id. at 51.
9
Plaintiff returned to work on the evening of March 15,
2015, and no inappropriate conduct or comments occurred on that
day as Hankins was still suspended. (Def. SMF ¶ 14-15.) Wilson
informed Plaintiff Hankins was still employed with Defendant.
Plaintiff “felt it was unfair” but Wilson explained she would
have to talk to HR about that. (Pl. Dep. at 55:11-23.) According
to Plaintiff, when she contacted HR the next day, Tuccillo
“basically said due to their policies that she did what she had
to do.” Id. at 56:13-56:19. Plaintiff characterized Tuccillo’s
tone as “very rude.” Id. at 57:21.
In either the same conversation or a different conversation
with Tuccillo shortly thereafter, Plaintiff reiterated to
Tuccillo (as she had previously stated to Tuccillo, id. at
56:16-17, and to Rivera, id. at 50:6-7) that she was
uncomfortable, and asked if either she or Hankins could be
placed on a different shift, but Tuccillo simply kept repeating
that “she reached out to someone and they told her that they did
what they had to do.” Id. at 59:3-9.
Defendants state that it had “no positions available for
Plaintiff or Hankins to move to,” while Plaintiff maintains that
“HR never checked to see if anyone could change shifts.” (Def.
SMF ¶ 13; Pl. Resp. SMF ¶ 13.) Tuccillo testified that she did
10
not contact other employees asking if they were willing to
change shifts. (Tuccillo Dep. at 54:9-13.)
According to Plaintiff, Defendant wanted to have her “work
side by side with [Hankins.]” (Pl. Resp. SMF ¶ 18; Pl. Dep. at
65:1-9.) But Defendant states Tuccillo informed Plaintiff she
“would not be working in the same area as Hankins.” (Def. SMF ¶
18.) Plaintiff disputes this, citing HR notes that reflect HR
recording Plaintiff as having said “that she doesn’t think its
right and he’s still in the same place as her. Even if he
doesn’t talk to her any more, she doesn’t think that’s the right
thing for us to do. I told her that was our decision and that we
needed her to return to work or resign.” [Docket Item 28-2 at
20, citing Pl. Ex. L). However, under Defendant’s proposed plan,
the separation of Plaintiff and Hankins would not have extended
to the common breakroom which they would share, nor the shared
outside areas. (Tuccillo Dep. at 50:20-51:4.)
Plaintiff, due to her discomfort with Hankins, called out
of work after March 15, as she could no longer work with
Hankins. (Def. SMF ¶ 20; Pl. Resp. SMF ¶ 20; Pl. Dep. at 59:314.) Defendant informed Plaintiff she needed to come to work.
(Def. SMF ¶ 21.) Subsequently, on March 17, 2015, “Plaintiff
informed Tuccillo that she would be contacting an attorney.”
(Def. SMF ¶ 22.)
11
Tuccillo continued to contact Plaintiff with regard to
returning to work, informing Plaintiff that if she failed to do
so it would be considered a voluntary resignation. (Def. SMF ¶
24.) Plaintiff alleges that she was unable to return because of
“the hostile work environment” and told Defendant she “would not
resign.” (Pl. Resp. SMF ¶ 25; Pl. Ex. L.) On March 20, 2015,
Plaintiff emailed Tuccillo “as a last alternative” expressing
that she did not want to lose her job but felt that she should
not “have to come to work in these conditions.” (Pl. Ex. O.) She
claimed that “I hope I can return to work soon without being
forced to work side by side with someone who has a problem with
me because of the color of my skin.” Plaintiff did not return to
work after her initial day back on March 15, 2015. (Pl. Dep. at
63:9-14.) At no time after the initial incident did Plaintiff
and Hankins work together again. Defendant informed Plaintiff
that she would be terminated if she did not return to work and
Plaintiff ultimately was so terminated. (Def. SMF ¶ 25.)
Following Plaintiff’s termination, on April 23, 2015, one
of Defendant’s employees, Anthony Debiase, sent an email to
Tuccillo regarding Hankins. (Pl. Ex. J.) The email described
Hankins’s inappropriate behavior towards one of the security
guards on two occasions. Id. Additionally, the email stated
Hankins was “still finding ways to antagonize and create
animosity,” reiterating the disruption Hankins’s behavior causes
12
in the warehouse. Id. Ultimately, Defendants fired Hankins
effective April 27, 2015. [Tuccillo Dep. at 66:3-8.] Plaintiff
contends that this continued harassing behavior by Hankins shows
that Defendant’s proposed remedial plan (and its suspension of
Hankins) was not reasonably calculated to adequately address
Plaintiff’s complaint. [Docket Item 28-2 at 21.]
In early May 2015, Plaintiff’s position remained open and
Defendants offered the position back to her. (Pl. Dep. at 81:222.) Plaintiff turned down the offer because she “had another
job and . . . [because of] what I just went through and the way
I was treated there.” Id. Plaintiff testified that her new
position (working at Domino’s for $3 an hour, with the
possibility of receiving tips ranging from $25 to $100 for an
eight- to ten-hour shift) was preferable to returning to her old
position, notwithstanding that she hadn’t actually begun working
at Domino’s yet. Id. at 83:17-84:8. Plaintiff testified that, at
the time Defendant offered Plaintiff her old position again, she
does not remember “it being discussed if [Hankins] was [still]
working there or not.” Id. at 86:1-8.1 It is undisputed that
1
A reasonable finder of fact may find that Plaintiff’s refusal
to return to work with Defendant effected a refusal of an offer
of reinstatement, which may limit the availability of equitable
remedies like reinstatement, front pay in lieu of reinstatement,
or back pay beyond this date. See generally Maxfield v. Sinclair
Intern, 766 F.2d 788, 796 (3d Cir. 1985)(“Ordinarily, an
employee would be made whole by a backpay award coupled with an
order for reinstatement. Reinstatement is the preferred remedy
13
Hankins was no longer employed when Defendant offered Plaintiff
re-employment.
B. Procedural Background
Plaintiff initially filed suit against Defendants in the
Superior Court of New Jersey, Burlington County, Law Division on
January 29, 2016, and Defendants removed the action to this
Court pursuant to 28 U.S.C. § 1441 et seq. on April 27, 2016.
[Docket Item 1.] Plaintiff filed an Amended Complaint. [Docket
Item 5.] Defendants then filed a motion to dismiss all claims
pursuant to Fed. R. Civ. P. 12(b)(6). [Docket Item 8.] That
motion was denied in part and granted in part without prejudice
and an accompanying order was issued by this Court. [Docket
Items 16, 17.] Plaintiff subsequently filed a Second Amended
Complaint [Docket Item 20] and Defendants filed an Answer
[Docket Item 21]. In due course, after completion of discovery,
Defendants filed the instant motion for summary judgment.
[Docket Item 25.] Plaintiff filed a response [Docket Item 28]
and Defendants submitted a Reply. [Docket Item 31.]
III. STANDARD OF REVIEW
Pursuant to Fed. R. Civ. P. 56(c), a motion for summary
judgment will be granted if the pleadings, depositions, answers
to avoid future lost earnings, but reinstatement may not be
feasible in all cases”).
14
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine dispute as to
any material fact and that the moving party is entitled to
judgment as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). “[S]ummary judgment may be granted only if
there exists no genuine issue of material fact that would permit
a reasonable jury to find for the nonmoving party.” Miller v.
Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). All facts and
inferences must be construed in the light most favorable to the
non-moving party. Peters v. Del. River Port Auth., 16 F.3d 1346,
1349 (3d Cir. 1994).
In deciding a motion for summary judgment, the court's role
is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for
trial. Anderson, 477 U.S. at 249. Credibility determinations are
the province of the factfinder, and thus at the summary judgment
stage credibility issues should be resolved against the moving
party. Big Apple BMW v, Inc. v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992); Meyer v. Riegel Prods. Corp., 720
F.2d 303, 307 n.2 (3d Cir. 1983). However, “[t]he mere existence
of a scintilla of evidence,” without more, will not give rise to
a genuine dispute for trial. Anderson, 477 U.S. at 252. In the
face of such evidence, summary judgment is still appropriate
15
“[w]here the record ... could not lead a rational trier of fact
to find for the nonmoving party.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
IV.
ANALYSIS
A. Racial Harassment Claim: Hostile Work Environment
1. Evidence of Severe or Pervasive Conduct
Defendant argues that Plaintiff’s claim of racial
harassment should fail as a matter of law because she cannot
show the harassment was severe or pervasive as required to
establish a prima facie case under NJLAD. The Court disagrees
and finds that a reasonable finder of fact could (but need not)
conclude that the harassment to which Plaintiff was subjected
was severe.
The NJLAD is a “remedial” statute, containing “broad
language” to be used “as a mechanism to root out the cancer of
discrimination.” Cicchetti v. Morris Cty. Sheriff’s Office, 194
N.J. 563, 588 (2008)(citations omitted). Section 10:5–12(a) of
the NJLAD provides in pertinent part that it is unlawful for an
employer to discriminate against an individual because of that
person's race. N.J.S.A. § 10:5–12(a). To succeed on a racial
harassment claim based upon a hostile work environment,
Plaintiff must establish that the complained-of conduct “(1)
would not have occurred but for the employee’s [race]; and [the
conduct] was (2) severe or pervasive enough to make a (3)
16
reasonable [African-American] believe that (4) the conditions of
employment are altered and the working environment is hostile or
abusive.’” Taylor v. Metzger, 152 N.J. 490, 498 (1998)(quoting
Lehmann v. Toys R Us, Inc., 132 N.J. 587, 603-04
(1993)(modifications in original).2
As the New Jersey Supreme Court has stated: “The Court in
Lehmann specifically adopted the ‘severe or pervasive’ test as
part of its comprehensive standard. That test conforms to the
standard for establishing workplace racial or gender harassment
under federal Title VII law. See Meritor Sav. Bank v. Vinson,
477 U.S. 57, 67 (1986) . . . . In choosing its test, the Court
clearly rejected an alternative regular-and-pervasive test that
requires repetitive or recurrent acts to establish workplace
harassment; that test would bar harassment-discrimination
actions that were ‘based on a single, extremely severe
incident.’ Lehmann, supra, 132 N.J. at 606. Consequently, under
the chosen standard--severe or pervasive conduct--one incident
of harassing conduct can create a hostile work environment.”
Taylor, 152 N.J. at 498-99.
2
The claim for a hostile work environment under NJLAD is
“strikingly similar” to one under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e, et seq. Caver v. City of
Trenton, 420 F.3d 243, 262 (3d Cir. 2005); see also Grazioli v.
Genuine Parts Co., 409 F. Supp. 2d 569, 576 n.10 (D.N.J.
2005)(same).
17
The Taylor Court painstakingly addressed the landscape of
the case law in 1998 regarding the viability of hostile-workenvironment claims premised on single incidents, looking both to
federal district and circuit courts interpreting Title VII
claims, as well as state law cases. Id. at 499-501. The court
concluded that “a single utterance of an epithet can, under
particular circumstances, create a hostile work environment[,]”
stating that “there is no requirement that harassment occur more
than one time in order to be actionable. The standard
contemplates conduct that is either severe or pervasive.
Although the conduct may be both, only one of the qualities must
be proved in order to prevail. The severity of the conduct may
vary inversely with its pervasiveness. Whether the conduct is so
severe as to cause the environment to become hostile or abusive
can be determined only by considering all the circumstances, and
this determination is left to the trier of fact.’” Id. at 501-02
(quoting Nadeau v. Rainbow Rugs, Inc., 675 A.2d 973, 976 (Sup.
Jud. Ct. Me. 1996))(emphasis added).
The Third Circuit has recently reiterated that the
disjunctive standard (“severe OR pervasive”) is the correct
standard in a Title VII case. In determining whether a hostile
environment exists, the correct standard asks whether the
conduct was “severe or pervasive,” meaning that “‘severity’ and
‘pervasiveness’ are alternative possibilities.” Castleberry v.
18
STI Grp., 863 F.3d 259, 264 (3d Cir. 2017). Cf. Exantus v.
Harbor Bar & Brasserie Restaurant, 386 F. App’x 352, 354 (3d
Cir. 2010)(summary judgment appropriate because “incidents
appear to have been isolated, rather than pervasive and
severe”)(emphasis added). Therefore, courts must examine the
totality of the circumstances in assessing whether the conduct
was either severe or pervasive, including but not limited to:
“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.” Mandel v. M & Q Packaging
Corp., 706 F.3d 157, 168 (3d Cir. 2013) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
Here, Defendants first argue that Plaintiff fails to put
forth sufficient evidence that a single racially-insensitive
remark, from a single incident, rises to the standard of severe
or pervasive conduct as part of a hostile work environment
claim. [Docket Item 21 at 7-8.] Here, it is undisputed that on
March 11, 2015, Plaintiff’s co-worker, Hankins, called Plaintiff
a “niglet.” Defendant concedes that this remark is vulgar,
offensive, and insensitive. Plaintiff contends that an
examination of the totality of the circumstances would permit a
reasonable jury to conclude this “March 12 incident constitutes
harassment in violation of NJLAD creating a hostile work
19
environment.” [Docket Item 28 at 13.] Plaintiff essentially
argues that Hankins was an abusive co-worker who called her a
contraction of the N-word and pig, and who was abusive toward
her as a woman, all in a context of Plaintiff being required to
continue to work with him without corrective measures. However,
Defendants argue, this Court should determine that no reasonable
finder of fact could conclude that this incident constituted
“severe” harassment, as a matter of law.
Under the NJLAD, “conduct must be extreme to amount to a
change in the terms and conditions of employment.” Heitzman v.
Monmouth Cty., 321 N.J. Super. 133, 147 (App. Div.
1999)(overruled on other grounds), quoting Faragher, 524 U.S. at
788. Therefore, harassing conduct must be severe or pervasive.
Lehmann, 132 N.J. at 606 (“The disjunctive ‘severe or pervasive’
standard is in conformity with federal Title VII law.”). Such
conduct may be distinguishable from the “mere utterance of an
ethnic or racial epithet which engenders offensive feelings in
an employee.” Meritor, 477 U.S. at 67. The Court in Faragher
reiterated that Title VII’s standards, “[p]roperly applied, . .
. will filter out complaints ‘attacking the ordinary
tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional
teasing[,]’” and cited with approval a collection of cases
“instructing that ‘[d]iscourtesy or rudeness should not be
20
confused with racial harassment’ and that ‘a lack of racial
sensitivity does not, alone, amount to actionable harassment.’”
Id. at 788 (internal citations omitted). Accordingly, “‘simple
teasing,’ offhand comments, and isolated incidents (unless
extremely serious)” are not sufficient. Faragher, 524 U.S. at
788 (internal citation omitted).3
Per the parenthetical, then, in Faragher, the question
presented to this Court is whether the Court ought to rule that
any potential finding by a factfinder, taking into account all
the circumstances, that the incident with Hankins ought to be
categorized as “extremely serious” (and therefore “severe” under
NJLAD) would be unreasonable, as a matter of law.
The Court declines this invitation to limit the scope of
how a reasonable finder of fact--notably, not this Court at
summary judgment--may interpret and weigh this incident and the
testimony that establishes it. As Judge Kavanaugh stated in
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013),
“several courts have recognized, moreover, [that] a single
verbal (or visual) incident can likewise be sufficiently severe
to justify a finding of a hostile work environment. . . . It may
3
While this is the general rule, the New Jersey Supreme Court
has repeatedly and expressly recognized that “[n]onetheless, in
certain circumstances, even a single comment can be so severe as
to pollute the work environment, rendering it irretrievably
hostile. See Taylor, supra, 152 N.J. at 495, 499, 502[.]).”
Cutler v. Dorn, 196 N.J. 419, 432 n.7 (2008).
21
be difficult to fully catalogue the various verbal insults and
epithets that by themselves could create a hostile work
environment.”
“Niglet,” as Hankins explained to Plaintiff, is a
portmanteau of the word “nigger” and the word “piglet.”
The Court expresses its sincere hope that little need be
said to establish the objective offensiveness, and the severity
of that offense, of the word “nigger.”4
4
“If you could choose one word to represent the centuries of
bondage, the decades of terrorism, the long days of mass rape,
the totality of white violence that birthed the black race in
America, it would be ‘nigger.’” Ta-Nehisi Coates, In Defense of
a Loaded Word, N.Y. Times, Nov. 24, 2013, https://www.nytimes.
com/2013/11/24/opinion/sunday/coates-in-defense-of-a-loadedword.html. See also Ayissi-Etoh, 712 F.3d at 580 (Kavanaugh, J.,
concurring)(“[T]he n-word . . . has been labeled, variously, a
term that ‘sums up . . . all the bitter years of insult and
struggle in America,’ LANGSTON HUGHES, THE BIG SEA 269 (2d
ed.1993)(1940), ‘pure anathema to African-Americans,’ Spriggs v.
Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001), and
‘probably the most offensive word in English,’ RANDOM HOUSE
WEBSTER’S COLLEGE DICTIONARY 894 (2d rev. ed.2000). See
generally ALEX HALEY, ROOTS (1976); HARPER LEE, TO KILL A
MOCKINGBIRD (1960). . . . No other word in the English language
so powerfully or instantly calls to mind our country’s long and
brutal struggle to overcome racism and discrimination against
African-Americans.”); Taylor, 152 N.J. at 502 (“Racial epithets
are regarded as especially egregious and capable of engendering
a severe impact. . . . In this case, defendant’s remark had an
unambiguously demeaning racial message that a rational
factfinder could conclude was sufficiently severe to contribute
materially to the creation of a hostile work environment. The
term defendant used, ‘jungle bunny,’ is patently a racist slur,
and is ugly, stark and raw in its opprobrious connotation. . . .
It is a slur that, in and of itself, is capable of contaminating
the workplace.”); Reid v. O’Leary, No. 96-401, 1996 WL 411494,
at *4 (D.D.C. July 15, 1996)(“while it may be true that a single
incident, without more, usually does not create a hostile work
22
“Piglet,” of course, is the word for young pig. “Pigs are
taboo creatures, and as metaphors they imply that a person is
repulsive and morally depraved. . . . [T]he metaphor’s
offensiveness primarily reflects a transfer of dislike from the
animal to the person[.]” Nick Haslam, Steve Loughnan, and Pamela
Sun, Beastly: What Makes Animal Metaphors Offensive?, 30 J.
Language & Soc. Psychol. 311, 322 (2011).5 Pigs, notwithstanding
their actual habits, abilities, or attributes, are commonly
associated with negative concepts: uncleanliness (e.g., of the
pigsty, the barnyard, or as a forbidden, “unclean” food),
environment, it is very possible that the term ‘Coon-Ass’ is
racially derogatory or severe enough, in and of itself, to
create a hostile work environment. That question, of course, is
properly decided by a jury, not the court.”)(internal citations
omitted).
5 In one study, participants associated pigs and hogs (when used
metaphorically to describe people) with “low conscientiousness”
(alongside sloths, slugs, and the general “animal”) and
“depravity” (along with “animal, beast, dog, . . . leech, . . .
rat, toad, vulture, whale, [and] worm[.]” Haslam, supra, at 316.
Another study found that participants rated comparing a person
to a pig as more offensive than comparing a person to an ape or
a rat. Id. at 320.
23
slovenliness, or gluttony.6 Moreover, pigs are undoubtedly
considered to be less than humans.7
Moreover, the “piglet” aspect of Hankins’s racial slur
casts Plaintiff in a diminutive, and therefore potentially
6
See, e.g., Robert Sommer and Barbara A. Sommer, Zoomorphy:
Animal Metaphors for Human Personality, 24 Anthrozoös 237, 240
(2011)(in study of 36 mammal metaphors, 100% of subjects stated
being called a pig was “uncomplimentary,” representing both
highest level of agreement among subjects, as well as most
negative association, among all mammal metaphors); Luca
Andrighetto, Paolo Riva, Alessandro Gabbiadini, and Chiara
Volpato, Excluded from all Humanity: Animal Metaphors Exacerbate
the Consequences of Social Exclusion, 35 J. Language and Soc.
Psychol. 628, *5 (2016)(“Animal metaphors occur repeatedly in
human speech and convey a multiplicity of meanings and feelings
that strongly depends on the context and the target of the
reference. For example, the metaphorical use of ‘piglet’ assumes
a benevolent and funny connotation in a familiar context when
referring to our own children, but may become offensive and
degrading in a romantic relationship. Regardless of context,
recent evidence has suggested that animal metaphors become
offensive when they involve animals that conjure up feelings of
disgust (e.g., worm) or degradation (e.g., ape). Throughout
history, these animal images have been often used in conjunction
with social exclusion to prepare the ground for aggression and
collective violence.”)(internal citations omitted).
7 “Like so many of us, [John Stuart] Mill[, when he remarked that
it is better to be a dissatisfied human than a satisfied pig,]
couldn’t manage to liberate himself from the notion that pigs
are beneath us in the cosmic order.” David Livingstone Smith,
Less Than Human: Why We Demean, Enslave, and Exterminate Others
41-42 (2012). The Court further notes that a reasonable finder
of fact could conclude that “[t]he same animal expression may be
more offensive when expressed toward an out-group member than an
in-group member[.]” Haslam et al., supra, at 314. While
“likening people to animals is not invariably dehumanizing,” as
“calling one’s baby ‘piglet’ is not the same as angrily calling
someone an ‘ape’[,]” id. at 313, the Court is unwilling to
state, let alone rule as a matter of law, that Hankins’s comment
to Plaintiff falls more into the former category rather than the
latter.
24
demeaning, light; this is relevant here, especially, because
Hankins made this comment to Plaintiff in the course of
directing a sexually-charged remark at her. The Court notes that
Hankins’s comment to Plaintiff did not arise in a way that was
perceived by Plaintiff as jocular or collegial, and the Court is
unwilling to say that her perception was unreasonable as a
matter of law. A reasonable factfinder would be readily capable
of concluding that this was far from the “simple teasing” not
actionable under Title VII, as discussed in Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 82 (1998) and Faragher.
Defendant may argue that Hankins intended his remark to be taken
as a joke, but does not dispute that it was offensive.
Regardless, the severity of Hankins’s remark will be a question
for the finder of fact to resolve at trial, and not for this
Court on summary judgment.
Hankins’s comment to Plaintiff also was directed at
Plaintiff--the term was not one that Hankins used in passing to
refer to some other person, object, or situation (as offensive
as that might nevertheless have been). Plaintiff has testified
that Hankins called her the word in question. It is difficult to
conclude that such a remark could, therefore, be appropriately
characterized as “stray” or “offhand” which connote a lack of
directness avowedly not present here. Cf. Caver, 420 F.3d at 262
(“‘offhanded comments and isolated incidents (unless extremely
25
serious)’ are not sufficient to sustain a hostile work
environment claim.” Faragher, 524 U.S. [at] 788”); Ezold v.
Wold, Block, Schorr and Solis-Cohen, 983 F.2d 509, 545 (3d Cir.
1992)(“[s]tray remarks by nondecisionmakers or by decisionmakers
unrelated to the decision process are rarely given great weight
. . . .”); Park v. Sec’y U.S. Dep’t of Vets. Affairs, 594 F.
App’x 747, 751 (3d Cir. 2014)(plaintiff’s one valid complaint of
supervisor making offensive, inappropriate comment based on
plaintiff’s national origin “was a classic stray comment and is
insufficient to establish a hostile work environment”).
The comment was made to Plaintiff in front of another
employee, Williams, who confirmed without delay to Defendant
that the offending epithet was used.8 A reasonable finder of fact
could conclude that this was humiliating to Plaintiff.
8
Williams also subsequently informed Defendant that Hankins
referred to her as “bitch” and constantly referred to female
employees as such. (Pl. Ex. L at 2.) Plaintiff also complained
to Wilson about Hankins “a number of times” stating he was
“erratic” and questioning his employment with Defendant,
although she never discussed any specific comments. (Def. SMF ¶
7; Pl. SMF ¶ 53; Pl. Dep. 74:21-22.) Although evidence suggests
that Hankins’s behavior was generally inappropriate, the present
record reflects that Defendant did not receive a formal
complaint about Hankins until Plaintiff’s complaint in March
2015. (Def. SMF ¶ 6; Tuccillo Dep. at 45:18-46:3.)
The law requires a reasonable employer to take “prompt
remedial action” when a hostile environment “is discovered,” not
only after “the harassed employee makes a complaint” in order to
escape liability. Harley v. McCoach, 928 F. Supp. 533, 540
(E.D.Pa. 1996)(citing Bouton v. BMW of N. Am., Inc., 29 F.3d
103, 110 (3d Cir. 1994)(employer must take “prompt remedial
26
After assessing the totality of the circumstances, the
Court concludes that a factfinder’s conclusion that this remark
was severe, humiliating, and unreasonably interfered with
Plaintiff’s ability to work with Hankins on the same shift would
be a reasonable one. See Taylor, 152 N.J. at 508 (“A rational
factfinder, crediting plaintiff’s evidence, could conclude that
defendant engaged in discriminatory harassment by uttering a
racial epithet that was sufficiently severe to have created a
hostile work environment. We reverse the order of summary
judgment for defendant on the claim of LAD racial discrimination
based on workplace harassment.”).
The Court notes that other courts have held that a single
incident involving a racial epithet used by a coworker is not
actionable under this standard. See, e.g., Bolden v. PRC Inc.,
43 F.3d 545, 551 (10th Cir. 1994)(“The blatant racial harassment
of Mr. Bolden came from only two of his coworkers on a couple of
occasions. . . . Because the racial comments were not pervasive,
they are insufficient to be actionable.9”); Johnson v. Bunny
action when the hostile environment is discovered” (emphasis
omitted))).
9 The Court notes that, in this formulation, the Tenth Circuit
appears to assume, without explicitly stating, that “the racial
comments” were also not “severe.” Moreover, the court required
the plaintiff to present evidence of “a steady barrage of
opprobrious racial comment,” citing Hicks v. Gates Rubber Co.,
833 F.2d 1406, 1412-13 (10th Cir. 1987). The Court does not
understand NJLAD claims (nor the Third Circuit on Title VII
27
Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981)(“We find no
steady barrage of opprobrious racial comment. The use, if any,
of racial terms was infrequent, was limited to casual
conversation among employees, and with possible rare exceptions
was not directed toward appellants.”); Bivins v. Jeffers Vet
Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994)(plaintiff
failed to show that harassment “was ‘sufficiently pervasive so
as to alter the conditions of employment[,]’” quoting Harris,
510 U.S. at 2110, and ruling that one use of the word “nigger” by
a coworker was “a [non-actionable] ‘mere utterance of an . . .
epithet which engenders offensive feelings’” and the defendants
“unequivocally” “addressed the situation promptly and
efficiently”); Bennett v. N.Y.C. Dep’t of Corrs., 705 F. Supp.
979, 983 (S.D.N.Y. 1989)(plaintiff failed to put forth evidence
allowing for a finding that “there was a pattern of enmity”
directed at black employees because plaintiff’s “evidence . . .
claims, see Castleberry) to require the showing of such a
“barrage.”
10 The Bivins Court appears to have paraphrased Harris rather
than directly quoted it, as the full quote from Harris states:
“When the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment, Title VII is
violated.” Id. at 21 (internal citations omitted; emphasis
added). The Bivins court also alternately named two different
coworkers as having made the single offending comment. 873 F.
Supp. at 1506 (Brown used epithet); id. at 1508 (Cook used
epithet).
28
consists of one incident”). However, it does not appear to this
Court that these courts, in the main, were assessing the work
environment on severity rather than pervasiveness. As such, they
are of limited utility.
The Third Circuit has suggested that, where “an extremely
derogatory ‘single utterance’ [of an epithet]” is “directed at
the plaintiff,” such an instance may create a hostile work
environment under NJLAD. Caver, 420 F.3d at 263 n.15. And, more
recently, the Third Circuit has reiterated that a single
incident may suffice under Title VII as well if sufficiently
severe, i.e., “extremely serious”. Castleberry, 863 F.3d at 264
(“it is clear that one [isolated] incident can suffice to state
a claim” as “isolated incidents will amount to harassment if
extremely serious”)(internal quotations and citations omitted);
id. at 265 (collecting cases).
As in Castleberry, other instances where summary judgment
have been granted are inapposite to these factual allegations.
Id. at 265 (comparing facts with Clark Cty. Sch. Dist. v.
Breeden, 532 U.S. 268 (2001)(per curiam); King v. City of
Phila., 66 F. App’x 300, 303 (3d Cir. 2003); Miller v. Thomas
Jefferson Univ. Hosp., 565 F. App’x 88 (3d Cir. 2014); Al-Salem
v. Bucks Ct. Water & Sewer Auth., No. 97-6843, 1999 WL 167729,
at *5-*8 (E.D.Pa. 1999); and finding “the facts of those cases”
“unhelpful”). While the court in Castleberry assessed a
29
purportedly isolated incident involving a supervisor’s “use[ of]
a racially charged slur in front of [the plaintiffs] and their
non-African-American coworkers” within “the same breath” as
“threats of termination (which ultimately occurred)” and found
that to “constitute[] severe conduct that could create a hostile
work environment,” the Castleberry court did not designate this
as a floor of severity, but rather merely held that it was,
contrary to the District Court’s conclusion, actionable under
§ 1981. Id. at 263-66.11
11
See also Oakley v. Wianecki, 345 N.J. Super. 194, 197, 202
(App. Div. 2001)(granting summary judgment in reverse
discrimination case where, unlike in Taylor, the “single
utterance” at issue (an unnamed “coarse, insulting and sexually
explicit insult”) “was undoubtedly ugly and offensive, [but] did
not carry the connotation of inferiority inherent in the epithet
used in Taylor [i.e., ‘jungle bunny’] or any comparable
connotation. It was an expression of anger, and was uttered in
the context of an angry exchange between plaintiff and Owens,
and for all that appears, was not significantly different from
what Owens might have aimed at another male or an African
American woman in a similar situation.”); Jones v. Norton, No.
06-2924, 2008 WL 282251, at *1, *4 (E.D.Pa. Jan. 31,
2008)(summary judgment granted where co-worker, in unrelated
“angry” “outburst[,]” called plaintiff a “‘black son of a
bitch,’ and a ‘black motherfucker[,]’ [and plaintiff] also
believe[d coworker] called him a nigger . . . but did not hear
the word clearly” because plaintiff did not show “a steady
barrage of opprobrious racial comments[,]” or that
“discrimination was pervasive or regular[,]” citing Boyer v.
Johnson Matthey, Inc., No. 02-8382, 2005 WL 35893, at *17
(E.D.Pa. Jan. 6, 2005)(finding that plaintiff did not show
“harassment was regular and pervasive” where there was no
“steady barrage of opprobrious racial comments”) and Al-Salem,
1999 WL 167729 at *5, citing Schwapp v. Town of Avon, 118 F.3d
106, 110-11 (2d Cir. 1997)(no “steady barrage of opprobrious
racial comments” means harassment is not “severe and
pervasive”)(emphasis added)); Ballard v. Mercy Catholic Med.
30
Ctr. of Southeastern Pa., No. 12-0779, 2013 WL 3305235, at *8
(E.D.Pa. June 28, 2013)(plaintiff’s claim for racial harassment
fails where coworker addressed plaintiff by the ‘n’ word in the
Mercy cafeteria” because one such incident “is insufficient to
demonstrate pervasive and regular discrimination, as is required
to make out a prima facie case of a hostile
environment”)(emphasis added); Lawrence v. F.C. Kerbeck & Sons,
134 F. App’x 570, 572 (3d Cir. 2005)(acting manager responsible
for calculating payroll made a “racial remark” in context of an
argument with plaintiff; summary judgment appropriate where
plaintiff “acknowledged that he did not have regular contact
with Martin and that the altercation over the payroll was an
isolated incident”); Shaw v. FedEX Corp., No. L-3351-08, 2012 WL
3116722, at *6 (N.J. App. Div. July 20, 2012)(distinguishing
Taylor from situation where plaintiff “continued a voluntary
friendship with [offending coworker] over the next three
years[,] demonstrate[ing] that plaintiff did not consider [her]
objectionable conduct to be severe or pervasive or that she felt
unsafe or perceived that [she] had altered the work conditions”
and both plaintiff and offender “exchanged racially charged
insults”); Shain v. HEL Ltd., No. L-2849-08, 2012 WL 671922, at
*5 (no claim for hostile work environment where, inter alia,
offensive comment “was not made directly to plaintiff” and
offender “promptly apologized”); El-Sioufi v. St. Peter’s Univ.
Hosp., 382 N.J. Super. 145, 172 (App. Div. 2005)(no hostile work
environment claim where “single comment” was supervisor stating,
prior to plaintiff’s employment, that she “did not want to hire
a Muslim,” supervisor “essentially apologized, asked plaintiff
to please put it behind her and told her that she was looking
forward to working together” as court “decline[d] to find that a
single statement made prior to one’s employment can support a
subsequent discrimination complaint”); Bagley v. W.J. Maloney
Plumbing, No. CV-12-01901-PHX-SRB, 2014 U.S. Dist. LEXIS 185309,
at *15-*16 (D. Ariz. Feb. 10, 2014)(summary judgment appropriate
where supervisor once repeatedly said “nigger” at plaintiff and
supervisor was reassigned “when [p]laintiff expressed his
reluctance to return to the same jobsite” as supervisor because,
in part, comment was not “announced publicly for other employees
to overhear, evidence which is relevant in determining whether
the unwelcome conduct here was severe[,]” and because Ninth
Circuit purportedly “require[s] a plaintiff to show that the
offending conduct occurred more than once”)(citations omitted);
cf. Richmond v. Mississippi Dep’t of Hum. Servs., 745 So.2d 254,
258 (S.Ct. Miss. 1999)(employee’s single use of the word
“nigger” “does not rise to the level of creating a hostile
environment” in case where “the person in which the word was
31
The Court notes Defendant’s argument that Hankins’s insult
may not suffice under NJLAD because he was not Plaintiff’s
supervisor. While this Court previously distinguished Taylor
from the instant case on that ground, Nuness v. Simon and
Schuster, Inc., 221 F. Supp. 3d 596, 601-02 (D.N.J. 2016), the
Court explicitly stated: “While the insult at issue here was
clearly a racist slur and directed at the plaintiff, it was not
uttered by a supervisor like in Taylor, but by a co-worker, and
there are no facts in the Amended Complaint indicating that any
other person was present to hear the remark[,]” and relied on
that fact again in holding the Amended Complaint insufficient to
state a claim. Id. at 602, 603. That assumption is manifestly no
longer the case, and the Court notes that, while the Taylor
court apparently “heavily relied” on the supervisor-coworker
distinction, Nuness, 221 F. Supp. 3d at 602, Taylor did not
expressly require that a single slur, to be actionable, must
have been made by a supervisor, and indeed, a close read of the
text of that case suggests that the remark itself had
independent “severity.” Taylor, 152 N.J. at 503 (“the severity
of the remark in this case was exacerbated by the fact that it
was uttered by a supervisor” (emphasis added)). See also Leonard
used in reference to, seemingly accepted the apology offered” by
the offending co-worker “and did not feel it necessary to report
the incident to her superiors”).
32
v. Metro. Life Ins. Co., 318 N.J. Super. 337, 345 (App. Div.
1999)(“A rational factfinder could conclude that Iacone’s [two]
comments were severe enough to make a reasonable diabetic
believe that the working environment was hostile or abusive.
While the comments were not racial slurs, as in Taylor, they
could be construed as demeaning plaintiff because of his
physical condition and ridiculing his health concerns and fear
of death associated with that condition. Further, the severity
of the remarks was underscored by the fact that they were
uttered by plaintiff’s supervisor[.]” (emphasis added));
Hargrave v. Cty. of Atlantic, 262 F. Supp. 2d 393, 416 (D.N.J.
2003)(“a jury could reasonably conclude that the impact and
severity of Martello’s conduct was aggravated by the fact that
he was a member of the management staff,”)(citing, inter alia,
Taylor and Leonard)(emphasis added).
The Court also notes that its previous ruling was premised
on the proposition that “the sole defendants[,] . . . the
employer and its parent, . . . are sought to be held liable for
one remark of a non-supervisory co-worker.” Nuness, 221 F. Supp.
3d at 602. In contrast, the Court understands Nuness now to
claim that Defendant should be held responsible also for its own
negligence in failing to respond adequately to Hankins’s
behavior, and not merely for the making of the comment itself.
On this theory, it is not simply Hankins’s comment (which,
33
admittedly, Defendant could not have controlled or prevented ex
ante, except by having terminated Hankins before he made the
comment) that created the hostile work environment and exposed
Defendant to liability, but that comment in conjunction with the
allegedly inadequate response thereto, for which Defendant can
rightly be held responsible under the NJLAD, if proved.
Similarly to Castleberry, where the court ruled that the
plaintiffs could also have pled a viable claim for pervasiveness
of the racial harassment because of the actual existence of
other incidents connoting racial harassment, 863 F.3d at 265-66,
the Court notes that a reasonable finder of fact could conclude
that Plaintiff is not simply citing the “isolated” incident with
Hankins, but rather that incident as well as Defendant’s
allegedly inadequate response thereto, in attempting to
establish that the harassment she was subjected to was
sufficiently severe or pervasive under NJLAD.
In Taylor, the New Jersey Supreme Court recognized that
“[a]n employer has a clear duty not only to take strong and
aggressive measures to prevent invidious harassment, but also to
correct and remediate promptly such conduct when it occurs.” 152
N.J. at 504. As will be discussed infra, Plaintiff has put forth
sufficient evidence to allow a reasonable finder of fact to
conclude that Defendant did not take “adequate remedial action”
when informed about Hankins’s comment, thereby allowing a
34
rational factfinder to find for Plaintiff on the question of
Defendant’s vicarious liability. This alleged failure by
Defendant could be seen by the finder of fact as Defendant’s
contribution to the hostile work environment: “When 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 work environment hostile. The employer,
by failing to take action, sends the harassed employee the
message that the harassment is acceptable and that the
management supports the harasser.” Lehmann, 132 N.J. at 623.
Here, a reasonable finder of fact could conclude that
Defendant’s alleged failure to take adequate measures to prevent
Hankins from harassing Plaintiff again “sen[t Plaintiff] the
message that the harassment [was] acceptable” because it
apparently viewed Hankins’s behavior as providing lesser grounds
for termination than being late or exhibiting subpar work
performance; because its proposed remedial plan would not have
prevented the same situation from coming about in the first
place (as it occurred in a shared space); because Hankins
refused to acknowledge or admit what he had done; and because of
the suggestion Plaintiff understood that, due to his familial
relationships, Hankins was not likely to be (or not going to be)
terminated (notwithstanding his eventual firing). This outcome
could have contributed to the hostility of the working
35
environment such that a reasonable person in Plaintiff’s
position would have experienced it to be so severe as to effect
a change in the terms and conditions of her employment: from
Plaintiff’s perspective, she was subjected to a vile instance of
racial harassment with sexual overtones, promptly reported it,
and nevertheless remained unprotected (and was, allegedly,
spoken to rudely, in a manner that may have led her to believe
that Defendant was not open to hearing or addressing her
complaint). If Plaintiff succeeds in convincing a jury of these
facts and inferences, a rational finder of fact could find that
this context amounted to a racially hostile work environment for
Plaintiff. A reasonable jury could, to the contrary, conclude
that Defendant’s remedial steps, such as the three-day
suspension of Hankins and eventually firing Hankins and offering
to re-employ Plaintiff, were not inadequate to reasonably
address the racial harassment. Such a determination will not be
made in a summary judgment motion.
Similarly, in Reid, the court noted that in “establishing
her claim for hostile work environment, Plaintiff alleges
discriminatory treatment beyond the incident” where she was
called the racial slur: “namely, insensitive and unconcerned
remarks by DOE employees [in response to that incident] that . .
. a jury surely could interpret as contributing to a hostile
work environment.” 1996 WL 411494 at *4. The court found that
36
the defendant’s response to the plaintiff’s complaint was
material, as a factfinder could conclude that “its response
contributed to the allegedly hostile work environment.” Id. See
also Payton v. N.J. Tpk. Auth., 148 N.J. 524, 536-37 (1997)(“the
effectiveness of an employer’s remedial steps relates to an
employee’s claim of liability”).
After considering the totality of the circumstances, and
giving Plaintiff, as the party opposing summary judgment, the
benefit of reasonable inferences in her favor, the Court finds
that there is a genuine dispute of material fact as to whether
the conditions of Plaintiff’s working environment were “severe
or pervasive” pursuant to NJLAD, and Defendant’s request for
summary judgment on these grounds is DENIED.
2. Evidence of Vicarious Liability
Defendants argue that Plaintiff has not adduced enough
facts to allow a reasonable finder of fact to conclude that
Defendant is vicariously liable for the conduct of Hankins, its
employee and Plaintiff’s coworker. [Docket Item 21 at 11.]
Under NJLAD, the New Jersey Supreme Court has “concluded
that employers could be vicariously liable in damages under an
agency theory for . . . harassment committed by employees, and
that such liability would be governed by a variable standard
depending on the state of mind of the employer. Employers that
were negligent in failing to take effective steps to end . . .
37
harassment would be liable for compensatory damages, while those
that actually participated in or were willfully indifferent to
the wrongful conduct would be liable for punitive damages.”
Payton, 148 N.J. at 536 (citing Lehmann, 132 N.J. at 619-26,
internal citations omitted). The court continued: “Of particular
importance in Lehmann, we noted that an employer’s liability for
its own negligence in failing to take effective remedial
measures was a form of direct liability in addition to vicarious
liability.” Payton, 148 N.J. at 536 (citing Lehmann, 132 N.J. at
623). “Thus, we determined that an employer that failed to take
effective remedial measures against a harassing employee was, in
essence, liable for its own conduct.” Payton, 148 N.J. at 536
(emphasis in original).
“Effective measures are those ‘reasonably calculated to end
the harassment.’” Payton, 148 N.J. at 537 (quoting Lehmann, 132
N.J. at 623). Timeliness of the employer’s response is relevant
to the determination of effectiveness, as is whether “the
employer drags its feet in acting on the corroborative evidence”
that may be uncovered by a prompt investigation. Payton, 148
N.J. at 537. The court in Payton noted that “[n]umerous federal
courts have adopted this position as well. Federal jurisprudence
in this area is particularly relevant because the LAD draws
significantly from federal antidiscrimination law.” Id. at 538
(internal citations omitted). The court concluded: “In short, a
38
remedial scheme that reaches the correct result through a
process that is unduly prolonged or that unnecessarily and
unreasonably leaves the employee exposed to continued hostility
in the workplace is an ineffective remedial scheme. Such a
process, in reality, indirectly punishes employees with the
temerity to complain about . . . harassment and cannot
constitute ‘effective’ remediation.” Id.12
Here, a rational finder of fact could conclude that
Defendant’s proposed remedial measure was not adequate because
it was not reasonably calculated to end the harassment. Taking
the evidence in the light most favorable to Plaintiff, and
making all reasonable inferences in her favor, the harassment
occurred while she and Hankins were at the end of their shift,
in a common area and not on the work floor itself. Defendant’s
12
See also Jensen v. Potter, 435 F.3d 444, 452-53 (3d Cir.
2006), rev’d on other grounds (“In order to establish employer
negligence [in a coworker harassment case], the plaintiff must
show that management knew or should have known about the
harassment, but ‘failed to take prompt and adequate remedial
action.’ Andrews [v. City of Phila.], 895 F.2d [1468,] 1486 [(3d
Cir. 1990)]. An effective remedy--one that stops the harassment-is adequate per se. Knabe v. Boury Corp., 114 F.3d 407, 411-12
n.8 (3d Cir. 1997). Even if not effective, an employer’s
remedial measure is nonetheless adequate if ‘reasonably
calculated’ to end the harassment. Id. at 412-13 (internal
quotation omitted).”). “[A]n employee cannot dictate that the
employer select a certain remedial action[,]” but “Title VII
requires . . . that the employer take steps reasonably likely to
stop the harassment.” Knabe, 114 F.3d at 414 (internal quotation
and citation omitted).
39
proposed remedial measure would only have separated Plaintiff
and Hankins while they were working on the work floor--and not
in the precise location and context where the harassment
occurred in the first place. Furthermore, when Plaintiff
suggested an alternative remedial measure (that either she or
Hankins be moved to a different shift), the evidence allows for
a conclusion that Tuccillo unreasonably failed to implement,
attempt to implement, or even consider this alternative plan.
Cf. Jensen, 435 F. 3d at 447 (supervisor declined to move
plaintiff from alleged harasser’s work area “despite the
availability of another workstation. When asked at his
deposition to explain why he did not move [the plaintiff], [the
supervisor] answered: ‘Because I didn’t.’”).
Because there are genuine disputes of material fact about
whether Defendant’s response to Plaintiff’s complaint was
reasonably calculated to prevent Hankins from harassing
Plaintiff again, the Court cannot state that it was adequate as
a matter of law.13
13
See also Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126,
1131 (4th Cir. 1995)(“The adequacy of [defendant]’s response
once it was aware of the harassment is a factual issue. In
Paroline [v. Unisys Corp., 879 F.2d 100, 106-07 (4th Cir.
1989)(rev’d on other grounds)], a Unisys employee was sexually
harassed by a co-worker. When she complained, Unisys launched a
formal investigation, disciplined the harasser, and required him
to seek counseling. The harasser was informed that any further
incidents would be grounds for his immediate termination. We
held that a reasonable factfinder could infer that Unisys
40
The Court previously held that Plaintiff failed to state a
claim on this point, Nuness, 221 F. Supp. 3d at 604, where
Plaintiff did “not plead any facts describing Defendants’ antiharassment policy and how it was inadequate.” Id. Further
development of the factual record has provided the basis for a
reasonable finder of fact to find for Plaintiff on this element,
however, as Plaintiff has now put forth evidence to show that
the proposed remedial plan Defendant propounded under its antiharassment policy would have exposed Plaintiff to precisely the
same conduct, in precisely the same context, from Hankins.
The Court notes that, while the harassment here did end, it
did not end because of the measures Defendant took. In order to
be “adequate per se” on the grounds that it is “effective,” the
remedy must be what stops the harassment. Jensen, 435 F.3d at
453. Here, a reasonable finder of fact could conclude that it
intended the reprimand to be no more than a slap on the wrist
and, therefore, a genuine issue of fact existed about whether
Unisys’s action was reasonably calculated to end the harassment
[thereby insulating it from liability on the hostile-workenvironment claim].”); McCloud v. United Parcel Serv., Inc., 328
F. App’x 777, 781 (3d Cir. 2009)(“UPS’s remedial action was both
prompt and adequate” where it investigated within twenty-four
hours, interviewed “all eighteen employees who were assigned to
the area where the cone [with a racial slur written on it] was
found, obtained handwriting samples from each of them, and
consulted a handwriting expert to compare the samples with the
writing on the cone” and “instructed supervisors to meet with
employees to inform them that such an incident was not
tolerable” although “no employee was punished because the
investigation was inconclusive”).
41
was not Defendant’s remedy that stopped the harassment, but
rather Plaintiff’s decision not to continue to work the same
shift as Hankins, as Defendant would have had Hankins and
Plaintiff working together again, in precisely the same context
as at the time of the first instance, once Hankins had served
out his suspension. Accordingly, Defendant may not rely on the
fact that the harassment stopped to show that it is entitled to
a ruling as a matter of law that its remedial plan was
“effective” and therefore “adequate.”
Accordingly, Defendant is not entitled to summary judgment
on these grounds, and its motion as to Plaintiff’s hostile work
environment claim is therefore DENIED.
B. Constructive Discharge
Defendant argues that Plaintiff does not provide evidence
that can establish a claim for constructive discharge under the
NJLAD because of the nature of the harassment Plaintiff alleges,
its company procedures, and the proposition that Plaintiff did
not “do all that was necessary to remain employed.” [Docket Item
21 at 14-16.]
The question that pervades this argument as well as
Defendant’s argument as to Plaintiff’s retaliation claim, infra,
is how best to characterize and understand Plaintiff’s
separation from employment by Defendant. Defendant characterizes
it as a voluntary resignation and a choice made by Plaintiff
42
that she freely made in response to a situation that was not
objectively intolerable. Plaintiff, in contrast, characterizes
it as a termination made against her will when Defendant failed
to adequately address her complaint of harassment and she
responded reasonably, or, in the alternative, as a constructive
discharge (admitting that she technically left of her own
volition, but that she did so as “a fitting response” to an
“intolerable” situation, see Pennsylvania State Police v.
Suders, 542 U.S. 129, 134 (2004)). What sort of work environment
is objectively intolerable under the NJLAD?
Under NJLAD, a constructive discharge claim requires
“conduct that is so intolerable that a reasonable person would
be forced to resign rather than continue to endure it.” Shepherd
v. Hunterdon Developmental Ctr., 174 N.J. 1, 28 (2002) (citing
Jones v. Aluminum Shapes, Inc., 339 N.J.Super. 412, 428
(App.Div. 2001)); see also Aman v. Cort Furniture Rental Corp.,
85 F.3d 1074, 1084 (3d Cir. 1996)(“In order to establish a
constructive discharge, a plaintiff must show that the employer
knowingly permitted conditions of discrimination in employment
so intolerable that a reasonable person subject to them would
resign”)(internal quotation omitted). “‘[A] constructive
discharge claim requires more egregious conduct than that
sufficient for a hostile work environment claim,’ because
‘constructive discharge requires not merely “severe or
43
pervasive” conduct, but conduct that is so intolerable that a
reasonable person would be forced to resign rather than continue
to endure it.’” Lin v. Dane Const. Co., No. EM14WB-54045, 2014
WL 8131876, at *9 (N.J. App. Div. Mar. 17, 2015)(quoting
Shepherd, 174 N.J. at 28). “Summary judgment is appropriate if a
trier of fact could not reasonably conclude that a reasonable
person in the plaintiff’s shoes would have felt compelled to
resign.” Al-Salem v. Bucks Cty. Water & Sewer Auth., No. 976843, 1999 WL 167729, at *8 (E.D.Pa. Mar. 25, 1999)(citation
omitted)(holding that a “reasonable person would not feel
compelled to resign in October 1995 because of insults
experienced in 1992 or 1993. A reasonable person who felt
aggrieved by not receiving an earlier promotion would not feel
compelled to resign ten weeks after securing that promotion. . .
. [N]o reasonable person could find that the loss of the use of
a truck to commute or the need to sign training and briefing
forms . . . resulted in working conditions so intolerable that a
reasonable employee would have resigned”).
The Third Circuit has expressly declined to hold “as a
broad proposition of law that a single non-trivial incident of
discrimination can never be egregious enough to compel a
reasonable person to resign. An employment discrimination
plaintiff may simply face a more difficult burden of proof in
establishing the employer’s liability, when relying on a single
44
discriminatory incident as a basis for arguing the occurrence of
constructive discharge.” Levendos v. Stern Entertainment, Inc.,
860 F.2d 1227, 1232 (3d Cir. 1988). “[A] reasonable employee
will usually explore . . . alternative avenues [such as:
requesting to be transferred, advising the employer that they
would be compelled to leave if requested changes were not made,
or even filing a grievance,] thoroughly before coming to the
conclusion that resignation is the only option[,]” although the
Third Circuit “do[es] not require that such steps be taken in
all cases[, as a]n employee may be able to show working
conditions were so intolerable that a reasonable employee would
feel forced to resign without remaining on the job for the
period necessary to take those steps.” Clowes v. Allegheny
Valley Hosp., 991 F.2d 1159, 1161, 1161 n.6 (3d Cir.
1993)(citation omitted).
In analyzing a claim for constructive discharge, the Third
Circuit has stated that “‘[a] trial court should consider the
nature of the harassment, the closeness of the working
relationship between the harasser and the victim, whether the
employee resorted to internal grievance procedures, the
responsiveness of the employer to the employee's complaints, and
all other relevant circumstances[,]’” in addition to an
employee’s “obligation to do what is necessary and reasonable in
order to remain employed rather than simply quit.” Kirschling v.
45
Atl. City Bd. of Educ., 604 F. App'x 153, 155 (3d Cir. 2015)
(quoting Shepherd, 174 N.J. at 28)).
Here, the Court has previously ruled that a reasonable jury
could conclude that the incident perpetrated by Hankins involved
a particularly vicious, disgusting, and offensive comment,
arising out of no interaction with Plaintiff, directed squarely
at her, and notable for the
numerous aspects of its insult.
While Hankins and Plaintiff did not regularly work closely
together, they were exposed to each other in common areas on a
daily basis and frequently (albeit not regularly) worked
together on the floor; even under Defendant’s proposed remedial
plan as of March of 2015, as noted above, Plaintiff would have
been required to share the common spaces with Hankins at the
location where he initially harassed her. Plaintiff indisputably
resorted to internal grievance procedures, and has raised a
genuine dispute of material fact as to whether Defendant was
adequately responsive in addressing her complaints. Plaintiff
expressed what a reasonable factfinder could perceive to be her
objectively reasonable dissatisfaction with Defendant’s proposed
remedial plan, and she proposed what that factfinder could
perceive to be an alternative, also-reasonable plan that would
be more likely to actually prevent further harassment by
Hankins. That factfinder would also be reasonable to conclude
that Defendant’s failure to implement, attempt to implement, or
46
even seriously consider that alternative plan was inexplicable
and contributed to creating an “intolerable” situation for
Plaintiff. There is, then, at least a genuine dispute of
material fact as to whether Plaintiff satisfied her “obligation
to do what is necessary and reasonable in order to remain
employed rather than simply quit.”
While the Court previously ruled that Plaintiff’s Complaint
failed to state a claim for constructive discharge, Nuness, 221
F. Supp. 3d at 604-05, the development of the factual record has
allowed Plaintiff to put forth sufficient evidence now to
survive Defendant’s motion for summary judgment on this point.
Critical to the Court’s previous analysis was the presumption
that Plaintiff stopped coming to work even after she had
evidence that suspending Hankins had altered his behavior and
they had worked together thereafter without incident.14
14
“Plaintiff argues that she has adequately pled a constructive
discharge claim because she complained to HR about the racist
remark after it was uttered, HR only suspended Mr. Hankins for a
week, and then continued to schedule Plaintiff and Mr. Hankins
on the same shift in the same departments despite Plaintiff’s
continued complaints to HR. After Mr. Hankins’s return [] back
to the shift, Plaintiff alleges that Ms. Tuccillo told her that
‘despite her feeling uncomfortable, if she did not come to work
she would be resigning.’ After Plaintiff was absent from work
for one week, she was terminated. Importantly, however, once Mr.
Hankins returned from his one-week suspension, Plaintiff does
not allege that she experienced any additional raciallyinsensitive conduct.” Id. at 605.
47
While it remains undisputed that Plaintiff did not
experience any additional racially-insensitive conduct, a
reasonable finder of fact could easily conclude that this was
because Plaintiff declined to place herself in the same position
to be harassed, as a factfinder could reasonably conclude
Defendant required her to do. For the reasons discussed above,
Defendant is not entitled to a ruling as a matter of law that
its remedial policy was effective, thereby rendering Plaintiff’s
actions unreasonable and insulating Defendant from liability on
her claim of constructive discharge. The case cited by the Court
previously, Nuness, 221 F. Supp. 3d at 605 (citing Aman, 85 F.3d
at 1084), found the Third Circuit reversing a district court’s
grant of summary judgment to an employer on a constructive
discharge claim, declining to find as a matter of law that “the
conditions could not have been intolerable . . . because she
remained in her job for approximately four months after claiming
that they were intolerable” and that “the specific events that
prompted her departure were insufficient as a matter [of] law.”
Aman, 85 F.3d at 1084. On the two points (which “must be
addressed in tandem” in the particular case), the court stated:
“We have rejected imposing an ‘aggravated circumstances’
requirement upon constructive discharge claims. . . . A jury
could conclude that the conditions of her employment were
48
intolerable, and that while she had the fortitude to stay, her
strength finally failed.” Id. at 1084-85.
The Court reiterates that a constructive discharge claim
requires a showing of conduct more severe or pervasive or
otherwise worse, than that required for a hostile-workenvironment claim. “Intolerable” is worse than either “severe”
or “pervasive.” But because the Court does not conclude that
Plaintiff’s evidence of a hostile work environment represents
the “floor” of such a claim, there is still space, analytically,
for her to pursue her constructive discharge claim. “A hostileenvironment constructive discharge claim entails something more
[than a showing that the offending behavior was sufficiently
severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment]: A
plaintiff who advances such a compound claim must show working
conditions so intolerable that a reasonable person would have
felt compelled to resign. . . .” Suders, 542 U.S. at 146-47. See
Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1159-60
(8th Cir. 1999)(insufficient “evidence to support a finding of
constructive discharge” where “no evidence that age or sex
discrimination, rather than actual performance problems,
prompted the reprimands and the poor performance evaluations.
The working atmosphere was not ideal, but ‘a feeling of being
unfairly criticized or [having to endure] difficult or
49
unpleasant working conditions are not so intolerable as to
compel a reasonable person to resign.’ Carter v. Ball, 33 F.3d
450, 459 (4th Cir. 1994)).”). Examples of “difficult or
unpleasant working conditions” not amounting to constructive
discharge abound.15
In Perry v. Harris Chernin, Inc., (cited with approval by
the Supreme Court in Suders, 542 U.S. at 147), the Seventh
Circuit stated: “[T]he plaintiff’s resignation is not truly
voluntary if quitting was the only way she could extricate
herself from the intolerable conditions. But unless conditions
are beyond ‘ordinary’ discrimination, a complaining employee is
15
See Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th
Cir. 1985)(no reasonable person would have found the job
intolerable although plaintiff may have experienced problems in
managing his district due to the comparatively large size of his
territory); Pena v. Brattleboro Retreat, 702 F.2d 322, 325-26
(2d Cir. 1983)(no constructive discharge where employer asked
plaintiff to relinquish some management functions to her planned
successor a year earlier than plaintiff desired but undisputedly
did not want plaintiff to leave its employ; nor was plaintiff
faced with a loss of pay or change in title); Clowes, 991 F.2d
at 1160-61 (“hypercritical supervision” is not enough to prevail
on constructive discharge claim); Martin v. Citibank, N.A., 762
F.2d 212,221 (2d Cir. 1985)(Where: supervisor loudly mentioned
plaintiff having been polygraphed; unfounded complaints made
regarding plaintiff’s attitude; plaintiff given the wrong
combination to the night deposit box and had her deposits
interfered with by someone using supervisor’s card; plaintiff
required to process deposit records while serving customers;
plaintiff informally disciplined for attitude, evidence
insufficient to allow for jury verdict reflecting constructive
discharge as evidence did not “sustain an inference that a
reasonable person would have been ‘compelled’ to resign.”).
50
expected to remain on the job while seeking redress. Quitting
was not the only option available to Perry: Reynolds offered her
work at another store away from Jackson. That offer changed the
calculus facing Perry; quite simply, a reasonable person in her
position would not have been compelled to resign her employment
altogether,” and the court attendantly found that “her
constructive discharge claim should not have reached a jury[.]”
126 F.3d 1010, 1015 (7th Cir. 1997)(internal citations omitted,
emphasis in original). See also Amirmokri, 60 F.3d at 1132-34
(focusing on employer’s response and finding genuine dispute of
fact as to whether allegedly inadequate response by employer
allowed inference that plaintiff’s “ultimate resignation was a
reasonably foreseeable consequence of [defendant’s] insufficient
response” to what a reasonable factfinder could conclude was an
objectively intolerable atmosphere of “almost daily” epithets
based on plaintiff’s national origin that created “constant
stress[,]” “caused [plaintiff] to get an ulcer and eventually to
resign”); Hoff v. Spring House Tavern, No. 13-0662, 2013 WL
2434615, at *4 (E.D.Pa. June 5, 2013)(court declined to hold
single incident to be “so intolerable that a reasonable person
in plaintiff’s position would feel compelled to resign” where it
could “hardly be said that this single comment was so severe and
pervasive as to create a hostile work environment” and plaintiff
“elected to leave the workplace” because he “was dissatisfied
51
with the lack of instant discipline enforced against his coworker” but “did not really give [d]efendant a reasonable
opportunity to remediate the situation and to improve the
workplace environment”)(emphasis added).
“In assessing a plaintiff’s allegation of constructive
discharge, the Third Circuit has instructed district courts to
consider a number of factors known as the ‘Clowes factors’-which are neither absolute nor comprehensive--including: ‘“(1) a
threat of discharge; (2) suggestions or encouragement of
resignation; (3) a demotion or reduction of pay or benefits; (4)
involuntary transfer to a less desirable position; (5)
alteration of job responsibilities; (6) unsatisfactory job
evaluations.”’ Stremple v. Nicholson, 289 F. App’x 571, 574 n.1
(3d Cir. 2008); see also Clowes . . . , 991 F.2d . . . [at]
1161.” Kirschling, 10 F. Supp. 3d at 596.
Here, the Clowes factors do not support Plaintiff’s claim
of constructive discharge, except inasmuch as Defendant
threatened to terminate her for failing to appear for work. Her
claim is better understood as claiming that Defendant
constructively discharged her by requiring her to again expose
herself to the person who allegedly severely harassed her,
without adequately remediating the situation. Although the
question presented is not precisely like that presented to the
court in Amirmokri (where the Fourth Circuit attempted to
52
discern whether evidence existed to support the contention that
the plaintiff’s resignation was reasonably foreseeable in
response defendant’s inadequate remediation), there the court
did find relevant the defendant’s allegedly inadequate response
in assessing whether a constructive discharge could reasonably
be said to have occurred.
Furthermore, a reasonable jury may find from these disputed
facts that Plaintiff’s behavior in “request[ing] to be
transferred to another [shift], . . . advis[ing Defendant] that
she would feel compelled to leave if changes regarding [her
working environment] were not made, and . . . [promptly]
fil[ing] a grievance” to be “highly significant” and weigh
strongly in favor of allowing a reasonable finder of fact to
conclude that Plaintiff’s response was that of a reasonable
employee who “will usually explore such alternative avenues
thoroughly before coming to the conclusion that resignation is
the only option.” Clowes, 991 F.2d at 1161 (emphasis added).16
16
The Court expresses no opinion on whether Defendant’s May 2015
offer of reinstatement would have a limiting effect on
Plaintiff’s right to backpay or other equitable remedies as of
the date of her refusal, as discussed supra at Note 1. See,
e.g., Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 230 (1982)(if a
prevailing plaintiff “had rejected an unconditional offer” of
reinstatement from the defendant, “tolling [the defendant’s]
backpack liability from the time of [its] offer plainly would be
consistent with providing [the plaintiff] full compensation for
their injuries” because the plaintiff “is subject to the
statutory duty to minimize damages”); Bruno v. W.B. Saunders
Co., 882 F.2d 760, 770 (3d Cir. 1989)(recognizing that
53
Ultimately, the Court is persuaded that it would be a
mistake to substitute its judgment of what a reasonable person
in Plaintiff’s position would do, and whether Plaintiff’s
apparently sincerely-held, good-faith17 belief that it would be
intolerable for her to continue to work (as Defendant required
her to do) in the same context that produced the initial
harassment, and whether that belief and the ensuing actions were
objectively reasonable or unreasonable, for the sound judgment
of a rational fact-finder. See Schafer v. Board of Pub. Ed. of
the Sch. Dist. of Pittsburgh, 903 F.2d 243, 250 (3d Cir.
1990)(“On appeal, we cannot make the fact-finding required to
determine whether it was reasonable for Schafer to resign”).
Accordingly, the Court DENIES summary judgment on Defendant’s
motion as to Plaintiff’s constructive discharge claim.
C. Retaliatory Discharge Claim
plaintiff’s failure to accept a substantially equivalent job
offered by the defendant will toll the accrual of back pay
liability by the defendant employer, although “the plaintiff’s
obligation in this regard [is] not absolute”).
17 There is no suggestion in the evidentiary record that
Plaintiff declined to return to work for any reason other than
her objection to continuing to have to work with Hankins and be
exposed to the reasonable possibility of continued harassment by
him. However, the Court notes that the constructive discharge
inquiry is purely an objective one: “[P]otential jurors could
not rely on evidence regarding the impact the conduct had on
Plaintiff, whose subjective perceptions do not govern[.]”
Kirschling, 10 F. Supp. 3d at 601.
54
Finally, Defendant argues that Plaintiff’s retaliatory
discharge claim should fail because Defendant’s did “not take
any adverse employment action against Plaintiff,” and even if
Plaintiff could show otherwise, no causal connection between
Plaintiff’s protected activity and her termination exists.
Under the NJLAD, retaliation against an employee because
that employee “has opposed any practices or acts forbidden under
[the NJLAD] or because that person has filed a complaint,
testified or assisted in any proceeding under [the NJLAD,]” is
unlawful. N.J.S.A. § 10:5–12(d); Cortes v. Univ. of Med. &
Dentistry of N.J., 391 F.Supp.2d 298, 314 (D.N.J. 2005).
For a plaintiff to establish a prima facie case for
retaliation under the NJLAD, a plaintiff must show that she (1)
engaged in protected activity, (2) that she suffered an adverse
employment action, and (3) that there was a causal connection
between the protected activity and the adverse employment
action. Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001);
see also Battaglia v. United Parcel Serv., Inc., 214 N.J. 518,
70 A.3d 602, 619 (2013). Furthermore, “the plaintiff bears the
burden of proving that his or her original complaint—the one
that allegedly triggered his or her employer's retaliation—was
made reasonably and in good faith.” Carmona v. Resorts Int'l
Hotel, Inc., 189 N.J. 354, 915 A.2d 518, 521 (2007).
1. Adverse Employment Action
55
Pursuant to the NJLAD, “[r]etaliatory action” is “the
discharge, suspension or demotion of an employee, or other
adverse employment action taken against an employee in the terms
and conditions of employment.” N.J.S.A. 34:19–2(e). Moreover,
“retaliatory conduct must affect adversely the terms,
conditions, or privileges of the plaintiff's employment or
limit, segregate or classify the plaintiff in a way which would
tend to deprive her of employment opportunities or to otherwise
affect her status as an employee.” Marrero v. Camden Cty Bd. of
Soc. Servs., 164 F.Supp.2d 455, 473 (D.N.J. 2001). “Certainly, a
constructive discharge, if it occurred, constitutes an adverse
employment action.” Mieczkowski v. York City Sch. Dist., 414 F.
App’x 441, 445 (3d Cir. 2011)(citing Hill v. Borough of
Kutztown, 455 F.3d 225, 247 n.32 (3d Cir. 2006)).
Plaintiff claims she suffered an adverse employment action
when Defendants terminated her employment after her harassment
complaint to HR, her “reasonable refusal to acquiesce to
[Defendants’] demand that she continue to work side-by-side with
her harasser and her subsequent threat to hire an attorney.”
[Docket Item 28 at 21-22.] Plaintiff has provided sufficient
evidence from which a reasonable factfinder could conclude that
Defendant in fact terminated her and that termination was an
adverse material action.
56
First, as stated above, the Court has found a genuine
dispute of material fact as to Plaintiff’s constructive
discharge claim. A “constructive discharge is an adverse
employment decision.” Hill, 455 F.3d at 247 n.32.
Even if this were not so, Plaintiff has certainly put forth
sufficient evidence to allow a reasonable finder of fact that
she was terminated (even if that finder of fact does not
conclude that, e.g., the working conditions were objectively
“intolerable” as is required to establish a constructive
discharge).
Here, after receiving permission from Defendant, Plaintiff
returned to work after missing a few days after Hankins harassed
her. Upon her return, Plaintiff was informed that Hankins would
be returning to work after his suspension, and to work the same
shift as her. The parties dispute whether Defendant told
Plaintiff she would have her “work side by side with [Hankins.]”
(Pl. Resp. SMF ¶ 18; Pl. Dep. at 65:1-9; Def. SMF ¶ 18.)
Regardless, any separation of Plaintiff and Hankins would not
have covered the common areas they would have shared. (Tuccillo
Dep. at 50:20-51:4.)
Plaintiff thereafter, on multiple occasions, explained to
Defendant’s HR Department her discomfort in working with
Hankins, specifically claiming she was unable to return because
of “the hostile work environment” but that she “would not
57
resign.” (Pl. Resp. SMF ¶ 25; Pl. Ex. L.) Despite Defendant’s
argument that Plaintiff’s actions “constituted job abandonment,”
Plaintiff explicitly expressed that she did not want to lose her
job. Indeed, her actions in requesting alternative outcomes bear
this out: Plaintiff requested that either she or Hankins be
moved to a different shift so that they would not share the same
common areas where the harassment originally occurred, to no
avail. Nevertheless, in an email to Tuccillo, Plaintiff again
explained she should not “have to come to work in these
conditions,” but that “I hope I can return to work soon without
being forced to work side by side with someone who has a problem
with me because of the color of my skin.”
The record suggests that Defendant’s only response was to
inform Plaintiff that she would be terminated if she did not
return to work and thereafter, so terminated her. (Def. SMF ¶
25.) “[T]ermination is the most obvious example of adverse
employment action[.]” Marrero, 164 F.Supp.2d at 473. This record,
when viewed in the light most favorable to Plaintiff, would
allow a reasonable jury to find that her separation from
employment on March 20, 2015 constituted a termination and an
adverse employment action.
2. Causal Connection
58
Defendants argue in the alternative that if Plaintiff can
show there was an adverse employment action, her retaliation
claim still fails because she cannot establish the requisite
causal connection.
A plaintiff may demonstrate causation in a retaliation
claim by showing: (1) a close temporal relationship between the
protected activity and the adverse action, or (2) that “the
proffered evidence, looked at as a whole, ... raise[s] the
inference [of causation].” LeBoon v. Lancaster Jewish Cmty. Ctr.
Ass'n, 503 F.3d 217, 232 (3d Cir. 2007). “Where the temporal
proximity between the protected activity and the adverse action
is ‘unusually suggestive,’ it is sufficient standing alone to
create an inference of causality and defeat summary judgment.”
Id. (citing Breeden, 532 U.S. at 273–74, and noting that
“temporal proximity alone, when ‘very close,’ can in some
instances establish a prima facie case of retaliation”).
“[W]here the temporal proximity is not ‘unusually suggestive,’
we ask whether ‘the proffered evidence, looked at as a whole,
may suffice to raise the inference.’” LeBoon, 503 F.3d at 232
(quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280
(3d Cir. 2000)(internal citation and quotation marks omitted)).
In determining causation at the summary judgment stage, courts
consider “a broad array of evidence.” Farrell, 206 F.3d at 284
(3d Cir. 2000).
59
Here, it is undisputed that Plaintiff made the report on
March 11, 2015 and was separated from her employment with
Defendant on March 23, 2015, in the space of two weeks. Such an
amount of time would amount to close temporal proximity,
allowing for an inference of a causal connection. The Court
understands the thrust of Defendant’s argument to be that any
reasonable factfinder would be required to conclude that
Plaintiff’s intervening conduct (i.e., her refusal to return to
work after Hankins was disciplined) breaks the causal chain.
[Docket Item 25-1 at 24-25, stating that Plaintiff was
“terminated for failing to report to work.”] However, with
regard to a defendant’s direct (as opposed to vicarious)
liability, the Third Circuit has stated that “even a plaintiff
who fails to return to work because of dissatisfaction with the
remedial action chosen by the employer can” nevertheless
“present enough evidence to show . . . that the remedial action
was not ‘reasonably calculated’ to prevent further acts of
harassment” and thereby “withst[an]d summary judgment.” Knabe,
114 F.3d at 415. The court apparently contemplated the
withstanding of summary judgment even where a plaintiff failed
to return to work in the precise circumstances presented here,
although the plaintiff there did not “plead a retaliation count”
in her complaint. Id. at 408 n.1.
60
This is substantially different from the cases Defendant
cites in support of this proposition, where the causal
connection was undermined by undisputed evidence that the
plaintiffs were terminated for unrelated performance issues.18
These circumstances are not present here; Plaintiff’s purported
“absenteeism” was apparently directly and only caused by her
dissatisfaction with Defendant’s response to the alleged
harassment by Hankins, and was not “unrelated” to her complaint
about it; nor did it “predate” her protected activity.
Accordingly, the Court finds that Plaintiff has raised the
preliminary inference, due to temporal proximity, that there was
18
See Cavicchia v. Phila. Hous. Auth., 137 F. App’x 495, 497 (3d
Cir. 2005)(summary judgment appropriate on plaintiff’s “claim
under Pennsylvania’s Whistleblower Statute,” which has a
“standard more stringent than the one for a First Amendment
retaliation claim” where “there [wa]s no evidence supporting a
causal connection between Cavicchia’s report of wrongdoing and
his termination for absenteeism” when plaintiff “did not dispute
that he was absent, but argued . . . that this reason was
pretextual because [he] should have been subjected to more
progressive discipline under PHA’s discretionary policy”); Bimbo
v. Burdette Tomlin Memorial Hosp., 644 F. Supp. 1033, 1037
(D.N.J. 1986)(“preliminary inference of causation” from temporal
proximity of demotion to protected activity “unequivocally
overcome . . . by the defendant’s proof of a legitimate nondiscriminatory reason for its action” including “highly credible
testimony” “that the reasons given to plaintiff for her demotion
were in fact problems perceived well in advance of her letter .
. . and that numerous conversations with plaintiff were held
over a considerable period of time apprising her of the
perceived need for improvement with respect to these elements of
her job performance. The evidence further showed that plaintiff
was, in fact, late for work at least 104 times in the calendar
year immediately preceding her demotion”).
61
a causal connection between her complaint and her termination,
and there is a genuine dispute of material fact as to whether
that causal chain was broken. Summary judgment on this ground is
therefore not appropriate, and Defendant’s motion for summary
judgment as to retaliation shall be DENIED.
V.
CONCLUSION
For the foregoing reasons, the Court will DENY Defendants’
Motion for Summary Judgment in its entirety. An accompanying
Order will be entered.
June 29, 2018___
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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