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Thomas Paschos & Associates, P.C.
Haddonfield, New Jersey

In Brian Dunkley vs. S. Coraluzzo Petroleum Transporters, 2014 N.J. Super. LEXIS 130 (September 16, 2014), plaintiff experienced racial discrimination by a fellow employee assigned to train him. When the incidents were disclosed to defendant, it effectively resolved the discriminatory treatment identified by plaintiff and precluded any further racial harassment through its formal anti-harassment and anti-discrimination policy, a developed complaint procedure and an investigation process. However, plaintiff maintained as a result of his disclosures, he endured negative consequences, which he insisted caused his constructive discharge. He noted his report was not kept confidential and he felt ostracized by co-workers.

Plaintiff filed a complaint against defendant and unnamed John Does 1-10, claiming violations of the LAD, alleging defendant allowed conduct amounting to a hostile work environment (counts one and two), which caused his constructive discharge (count three), and violated public policy (count four). Plaintiff amended his complaint to add a claim for violating the Conscientious Employee Protection Act (CEPA).

Approximately one month before trial, defendant moved for summary judgment. The judge granted defendant's motion and dismissed the complaint. Plaintiff appealed.

On appeal, plaintiff maintains the judge correctly determined he presented a prima facie case of harassment, but erred in dismissing the action, after finding Harrington was not plaintiff's supervisor and concluding defendant was not vicariously liable for Harrington's actionable conduct. Plaintiff argued defendant failed to take proper steps to curb discriminatory conduct because defendant's anti-harassment policy lacked structure and monitoring mechanisms; defendant did not train its supervisors and employees regarding the anti-harassment and anti-retaliation policies; and plaintiff's complaints were not effectively addressed as defendant's upper management did not show "an unequivocal commitment" to assure "harassment would not be tolerated."

Contrary to plaintiff's assertion, the court found that defendant's policies were properly defined. When management learned of the problem, plaintiff's supervisors did not ignore his complaints or overlook Harrington's reprehensible behavior. Rather, Sickler's proactive conduct discovered the problem. He immediately arranged a private meeting between plaintiff and other supervisors to review plaintiff's experiences. Upon gathering the facts from plaintiff, the supervisors acted to protect plaintiff from further discrimination.

The court also held that plaintiff's complaints of perceived ostracism by fellow employees after he reported a co-worker's acts of racial discrimination are insufficient to support LAD claims of hostile work environment, retaliation or impose vicarious liability on the employer. The court cited the Supreme Court in Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 549, 70 A.3d 602 (2013) where the Court explained, the LAD does not create a "sort of civility code for the workplace[.]" Rather, it advances "[f]reedom from discrimination." Id. at 546, 70 A.3d 602. Employee discourtesy and rudeness should not be confused with employee harassment. Further, an "unhappy" workplace does not equate to a hostile work environment under the LAD.

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Copies of the full text of any of the cases discussed in this Newsletter may be obtained by calling the firm.  The articles contained in this Newsletter are for informational purposes only and do not constitute legal advice.

The Paschos Law Update Newsletter September 2014