BROWN v. JOEL TANIS & SONS, INC. et al

Filing 103

OPINION. Signed by Judge William J. Martini on 7/21/16. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:13-cv-02984 (WJM)

ANTHONY BROWN,
Plaintiff,

OPINION
v.
JOEL TANIS & SONS, INC., et al.,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Anthony Brown brings this employment discrimination action against his
employer, Tanis Concrete, Inc. (“Tanis”)1 and the company’s owner, Anthony Dellechiaie
(hereinafter “Tony Dell) (together, “Defendants”). Plaintiff alleges that his coworkers and
supervisor at Tanis have regularly called him derogatory racial slurs since he began
working there in 2005. Each Defendant has filed a separate motion for summary judgment
under Federal Rule of Civil Procedure 56. There was no oral argument. Fed. R. Civ. P.
78(b). For the reasons set forth below, Defendant Tony Dell’s motion for summary
judgment is GRANTED; Defendant Tanis’s motion is DENIED in part and GRANTED
in part.
I.

BACKGROUND
The following facts are undisputed unless otherwise noted.

Plaintiff, an African-American, has worked as a concrete mixer driver for Defendant
Tanis since 2005. ECF doc. 75, Third Amended Complaint (“TAC”) ¶ 23. Defendant
Tony Dell is the owner of Tanis. TAC ¶ 14. According to Plaintiff, shortly after he began
his employment, his coworkers and supervisors began to call him derogatory racial slurs,
such as “nigger” and “black mother fucker,” and harass him because of his race on an
almost daily basis. TAC ¶¶ 28-33, 40-43; see also ECF doc. 91, Ex. B (Pl. Dep.) at 31-37,
73-74, 79, 117. Several of Plaintiff’s coworkers testified at their depositions that they
witnessed this behavior: for example, Phillip Yucis testified that he heard Anthony Dages
1

In June 2014, Tanis Concrete, Inc. became the successor-in-interest to Joel Tanis & Sons, Inc. Both companies are
listed as separate Defendants; however, because the parties’ employment relationship did not change, and Plaintiff’s
claims against both companies are identical, the Court will treat them as a single Defendant (“Tanis”).
1

(the manager of quality control, whom Plaintiff claims was his “supervisor”) call Plaintiff
a “nigger” on one occasion, ECF doc. 91, Ex. D (Dep.), 7-8; Jason Howard testified that
he heard Marlon Orellana (a coworker) refer to an individual as a “nigger” in Plaintiff’s
presence, id., Ex. F at 32; Adam Davies also testified that he heard Orellana use that word
in Plaintiff’s presence, id., Ex. H at 29; and Orellana, who is Hispanic, testified that he and
other friends would occasionally address each other as “nigger,” id., Ex. I at 101-104.
Defendants contend that the discriminatory acts directed at Plaintiff are more
“limited” in nature. Defendants assert that Plaintiff only testified to four specific incidents
involving racial slurs, and that the individuals involved deny the allegations. ECF doc. 911 (Tanis SOMF) at 4-16. They further point out that Plaintiff’s coworkers only heard others
use racial slurs in Plaintiff’s presence on isolated occasions, indicating that this was not a
regular occurrence. Id.
According to Plaintiff, once he complained about the harassment to his managers
and filed an EEOC charge, he received even worse treatment. TAC ¶¶ 36, 70. Specifically,
his coworkers began to “overly criticize Plaintiff at every opportunity” and even “tried to
kill Plaintiff by cutting his brakes on his car in retaliation for his complaints.” TAC ¶¶ 35,
38-39. Plaintiff also alleges that his supervisor began taking “pictures of Plaintiff at work
in order to harass and intimidate him.” TAC ¶ 60.
Plaintiff further alleges that he requested a meeting with Dell to discuss the abuse,
but he was denied the meeting and the abuse continued. Id. ¶ 54-55. Plaintiff complained
to Dell on four separate occasions. At each meeting with Dell, Plaintiff specifically told
Dell about the use of racial slurs and harassment by many of his coworkers. Despite these
multiple complaints, each time Defendant Dell ignored Plaintiff’s complaints and allow
the harassment to continue. ECF doc. 83, ¶¶ 9-10. Dell contends, however, that once he
became aware of the racial comments, they were put to an end. ECF doc. 81-13, ¶¶ 33-34.
Both parties agree that Defendants never implemented a formal anti-discrimination
or harassment policy, and failed to distribute an employee handbook. Plaintiff is still
employed by Tanis and has never been suspended or terminated.
In September 2015, Plaintiff filed his third amended complaint, asserting claims
against Defendants for hostile work environment, discrimination and retaliation under Title
VII, 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination (the “NJLAD”).2
Defendant Dell moves for summary judgment as to the claims against him: Count 1
(Discrimination, Hostile Work Environment, and Retaliation under § 1981), Count 4
(Discrimination under the NJLAD), Count 5 (Retaliation under the NJLAD), and Count 6
(Aiding and Abetting under the NJLAD). Defendant Tanis moves for summary judgment
2

In June 2014, this Court dismissed in part claims against other Defendants, but because Plaintiff has not named
these Defendants in his most recent Complaint, these claims are no longer relevant.
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as to the claims against it: Count 1, Count 2 (Discrimination under Title VII), Count 3
(Retaliation under Title VII), and Counts 4-6.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides for summary judgment “if the
pleadings, the discovery [including, depositions, answers to interrogatories, and
admissions on file] and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual
dispute is genuine if a reasonable jury could find for the non-moving party, and is material
if it will affect the outcome of the trial under governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all evidence and
inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli
v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
Initially, the moving party has the burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this
burden, the nonmoving party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id. The opposing party must do more than
just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001). Rather, to withstand a proper motion for summary
judgment, the nonmoving party must identify specific facts and affirmative evidence that
contradict those offered by the moving party. Anderson, 477 U.S. at 256-57.
III.

CLAIMS AGAINST DEFENDANT DELL INDIVIDUALLY
A. Count 4 (NJLAD Discrimination)

Defendant Dell argues that the Court should dismiss Count 4 against him, because
Section 10:5-12(a) of the NJLAD does not provide for individual liability. Plaintiff does
not oppose this portion of Dell’s summary judgment motion or otherwise identify any
specific facts showing that there is a genuine issue for trial as to this Count. Accordingly,
Count 4 is dismissed against Dell.3 See Resolution Trust Corp. v. Dunamr Corp., 43 F.3d
587, 599 (11th Cir. 1995) (“In opposing a motion for summary judgment, a party may not
rely on his pleadings to avoid judgment against him . . . . [T]he onus is upon the parties to
formulate arguments; grounds alleged in the complaint but not relied upon in summary
judgment are deemed abandoned.”) (internal quotation marks and citation omitted).
The Court briefly notes that Section 10:5-12(a) prohibits “an employer” from discriminating against an employee
with respect to the “terms, conditions or privileges” of his employment on the basis of his race or gender. “[T]he
plain meaning of the definition of employer in the [NJLAD] does not include a supervisor.” Cicchetti v. Morris
Cnty. Sheriff’s Office, 947 A.2d 626, 645 (N.J. 2008). Dell is Plaintiff’s supervisor, but not his actual “employer”;
therefore, summary judgment appears to be warranted on the merits as to this Count, as well.
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B. Count 5 (NJLAD Retaliation)
A prima facie case of retaliation under Section 10:5-12(d) of the NJLAD is
established where the Plaintiff alleges that (1) he engaged in a protected activity known to
the Defendant; (2) he suffered an adverse employment action; and (3) there was a causal
connection between the protected activity and the adverse employment action. Abramson
v. William Paterson Coll., 260 F.3d 265, 286 (3d Cir. 2001); Woods-Pirozzi v. Nabisco,
290 NJ Super. 252, 274 (App. Div. 1996).
Here, Plaintiff has failed to establish a prima facie case of retaliation against Dell
individually. Plaintiff engaged in a protected activity (filing the EEOC charge), which was
known to Dell. However, the only resulting “adverse employment action” that Plaintiff
alleges that he suffered at the hands of Dell is “the fact that Defendant Dell to this day still
does not have an employee handbook or an anti-discrimination policy,” which “clearly
shows that Defendant Dell is acting out of spite.” Opp. Br. at 9-10.
Plaintiff does not provide, and this Court cannot find, any case law suggesting that
the failure to disseminate an employee handbook or anti-discrimination policy alone
constitutes an “adverse employment action” under the NJLAD. See generally Greaser v.
Missouri Dep't of Corr., 145 F.3d 979, 984 (8th Cir. 1998) (“Although actions short of
termination may constitute an adverse employment action within the meaning of the
statute, not everything that makes an employee unhappy is an actionable adverse action.’”);
Patterson v. Cannon, 2010 WL 3419229, at *11 (N.J. Super. Ct. App. Div. Aug. 24, 2010)
(holding that, while certain treatment may be “neglectful” or “distasteful,” it does not
amount to an ‘adverse employment action’ for the purposes of an NJLAD retaliation
claim). Moreover, Plaintiff has not provided any evidence – beyond his own conclusory
conviction that Dell “is acting out of spite” – that Dell’s failure to institute an antidiscrimination policy has any causal connection to Plaintiff’s protected activity. See
generally Sconfienza v. Verizon Pennsylvania Inc., 307 F. App’x 619, 623 (3d Cir. 2008)
(“Because [Plaintiff] has offered no evidence to show the causal connection . . . . summary
judgment was proper.”). Accordingly, summary judgment is warranted as to this claim.
C. Count 6 (NJLAD Aiding and Abetting)
To be held individually liable for discrimination under the Section 10:5-12(e) of the
NJLAD, a supervisor must have “aided and abetted” the alleged discrimination. Tarr v.
Ciasulli, 181 N.J. 70, 82 (2004). To be liable as an aider or abetter, “(1) the party whom
the defendant aids must perform a wrongful act that causes an injury; (2) the defendant
must be generally aware of his role as part of an overall illegal or tortious activity at the
time that he provides the assistance; and (3) the defendant must knowingly and
substantially assist the principal violation.” Id. at 929.

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Even assuming that, as Plaintiff contends, Dell had knowledge of the racial slurs
directed against Plaintiff by other Tanis employees, and that Dell failed to effectively
respond to Plaintiff’s complaints, this conduct falls short of the “active and purposeful
conduct” required to hold Dell liable for aiding and abetting under the NJLAD. See
Cicchetti v. Morris Cty. Sheriff's Office, 194 N.J. 563, 595 (2008) (holding that evidence
that supervisors failed to “act so as to protect plaintiff or effectively respond to his
complaints of discrimination . . . . fall well short of the ‘active and purposeful conduct’”
required to constitute aiding and abetting). Summary judgment is therefore granted in
favor of Dell as to this claim.
D. Count 1 (Discrimination/Hostile Work Environment and Retaliation
Under § 1981)
An individual can only be liable under § 1981 if he acted with “purposeful
discrimination” and was personally involved in the discrimination. Anderson v. Wachovia
Mortgage Corp., 621 F.3d 261, 268 (3d Cir. 2010); Al-Khazraji v. Saint Francis College,
784 F.2d 505, 518 (3d Cir. 1986). A defendant was “personally involved in the
discrimination . . . if they intentionally caused the [employer] to infringe on [Plaintiff’s]
Section 1981 rights, or if they authorized, directed, or participated in the alleged
discriminatory conduct.” Al-Khazraji, 784 F.2d at 518.
Here, Plaintiff alleges that “Defendant Dell’s actions in not dissuading the ongoing
hostile work environment, even still today, establishes that he has intentionally authorized
such conduct and comments.” But an individual Defendant’s failure to respond to
discrimination “does not sustain a finding of purposeful discrimination.” Whitfield v. Notre
Dame Middle Sch., 412 F. App’x 517, 522 (3d Cir. 2011). And Plaintiff does not allege
that Dell personally retaliated against him, as described above. Accordingly, Plaintiff’s
§ 1981 claim against Dell fails as a matter of law. Id.
IV.

CLAIMS AGAINST DEFENDANT TANIS
A. Legal Standards4
i. Discrimination/Hostile Work Environment under § 1981, Title
VII, and the NJLAD

To establish a discrimination claim based on a hostile work environment under both
Title VII and § 1981, a Plaintiff must show that: (1) he suffered intentional discrimination
The Court notes that New Jersey courts looks to federal law “as a key source of interpretative authority” in analyzing
claims under the LAD. See Brounstein v. American Cat Fanciers Assoc., 839 F. Supp. 1100, 11009 (D.N.J. 1993)
(citing Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 97 (1990)). Therefore, the Court will analyze the
parallel state and federal standards concurrently when appropriate.
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because of his race, (2) the discrimination was severe or pervasive, (3) the discrimination
detrimentally affected him, (4) the discrimination would detrimentally affect a reasonable
person in like circumstances, and (5) the basis for employer liability is present. Jensen v.
Potter, 435 F.3d 444, 449 (3d Cir. 2006) (citations omitted); see also Verdin v. Weeks
Marine Inc., 124 F. App’x. 92, 95 (3d Cir. 2005). To withstand a motion for summary
judgment in a discrimination case, a plaintiff only need show sufficient evidence to create
a genuine issue of material fact as to whether the defendant intentionally discriminated
against him. Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990).
“A single racial epithet, uttered by a supervisor, might suffice to prove the existence
of a hostile work environment, thus making the employer liable.” Cicchetti, 194 N.J. at
592-93 (internal citations omitted). If the harassing employee is the victim’s co-worker,
the employer is liable only if [the employer] was negligent in controlling working
conditions.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2439, (2013); see also Ocheltree
v. Scollon Prods., Inc., 335 F.3d 325, 333–34 (4th Cir. 2003) (en banc) (“[T]he employer
may be liable in negligence if it knew or should have known about the harassment and
failed to take effective action to stop it.”).
ii. Retaliation under § 1981, Title VII, and the NJLAD
To establish a retaliation claim under § 1981, Title VII, or the NJLAD, a Plaintiff
must establish that: (1) he participated in protected activity; (2) his employer took an
adverse employment action after or contemporaneous with the protected activity; and
(3) there is a causal link between the protected activity and the employer’s adverse action.
See Kant v. Seton Hall Univ., 289 F. App’x. 564, 567 (3d Cir. Aug. 27, 2008) (internal
citations omitted). Increased harassment may form the basis for a retaliation claim. See
Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 793 (7th Cir. 2007); Gunnell v. Utah
Valley State Coll., 152 F.3d 1253, 1264 (10th Cir. 1998).
iii. Aiding and Abetting under NJLAD
Section 10:5–12(e) of the NJLAD prohibits any person from aiding or abetting
another in committing any acts prohibited by the LAD. This provision is generally
designed to impose liability upon a party for aiding and abetting the unlawful acts of the
employer. See Colello v. Bayshore Cmty. Health Servs., 2010 WL 1753164, at *14 (N.J.
Super. Ct. App. Div. Apr. 28, 2010) (citing Tarr, 181 N.J. 70, 84 (2004) and Figueroa v.
City of Camden, 580 F. Supp. 2d 390, 405 (D.N.J. 2008)). Aiding and abetting requires
“active and purposeful conduct.” See Cicchetti, 194 N.J. at 595.
B. Discussion
The Court finds that Plaintiff has established prima facie claims for discrimination,
hostile work environment, and retaliation against Tanis under federal and state law.
Plaintiff’s deposition testimony and affidavit (combined with the corroborating testimony
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from his co-workers) that he was called racial epithets by both co-workers and his
supervisor multiple times suffices to allege a discriminatory and hostile work environment.
See Cicchetti, 194 N.J. at 592-93 (2008); see generally Rodgers v. Western-Southern Life
Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (finding that unambiguous racial epithets create
a hostile work environment). Moreover, even if Todd Danges was not Plaintiff’s
“supervisor,” but merely a co-worker, Tanis may be found negligent by a jury for failing
to promulgate an employee handbook or formal anti-discrimination policy following
Plaintiff’s complaints. See Vance, 133 S. Ct. at 2439. Plaintiff’s claims that he was further
harassed after he complained about the hostile work environment and filed an EEOC
complaint are sufficient to allege a retaliation claim against Tanis. See Boumehdi, 489 F.3d
at 793.
In its motion for summary judgment, Tanis disputes the number of times that
Plaintiff was on the receiving end of racist comments, stating that “Plaintiff’s claims are
exaggerated, at best” and pointing out that his allegations of racial discrimination were
more “limited” at his deposition than in his complaint. Def. Br. at 12. Tanis further argues
that “each of the individuals [who allegedly discriminated against Plaintiff] deny the
allegations.” But a reasonable jury who accepts Plaintiff’s version of events – and the
corroborating witnesses’ testimonies in favor of this version – could find that Plaintiff was
subjected to a discriminatory and hostile work environment, and retaliated against for
opposing this discrimination, and that Tanis was negligent in failing to control these
working conditions.
The Court therefore concludes that summary judgment is inappropriate as Counts 1
though 5 against Tanis. At bottom, resolution of these claims will require credibility
determinations and the weighing of evidence, both functions that are clearly within the
province of the jury. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 254 (1986)
(“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a
motion for summary judgment.”).
In fact, Tanis’s brief in support of its summary judgment motion perfectly
encapsulates the “he said, she said” nature of this action:
[One co-worker] claims that he heard John Mernick refer to Plaintiff by a
racial slur. Mr. Mernick denies this. Plaintiff claims that Phil Yucis
overheard [Plaintiff’s supervisor] make a racial slur. Plaintiff was not
present for this incident and [Plaintiff’s supervisor] denies it. . . . Plaintiff
claims that Marlon Orellana directed racial slurs at him, which caused him
to physically accost him . . . . Mr. Orellana denies addressing Plaintiff in the
way Plaintiff describes.
ECF doc. 91-2 (Def. Br.) at 8. Because genuine issues of material facts remain as to witness
credibility and the impetus behind Tanis’s (and its employee’s) actions, Tanis’s motion for
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summary judgment must be DENIED as to those Counts. Coolspring Stone Supply, Inc.
v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993) (“Summary judgment is
inappropriate when a case will turn on credibility determinations and . . . on state of mind”)
(internal citations omitted).
However, the Court will GRANT Tanis’s motion with respect to Count 6,
aiding and abetting under the NLAD. First, Plaintiff has failed to identify any legal
authority which would support the notion that a party can be held liable for aiding and
abetting its own unlawful conduct. And, even assuming that Tanis management failed to
effectively respond to Plaintiff’s complaints about its employees, this conduct falls short
of the “active and purposeful conduct” required to hold Tanis liable for aiding and abetting
under the NJLAD. See Cicchetti, 194 N.J. at 595. Plaintiff has not otherwise alleged any
facts to support a theory of “aiding and abetting”; accordingly, summary judgment is
warranted as to this claim.
V.

CONCLUSION

For the reasons stated above, Defendant Dell’s motion for summary judgment is
GRANTED. Defendant Tanis’s motion is DENIED as to Counts 1 though 5, and
GRANTED as to Count 6. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: July 21, 2016

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