Schorr & Associates’ Employment Case of The Week ending January 6, 2017

Clem v. Case Pork Roll Co., 2016 U.S. Dist. LEXIS 554 (D.N.J. January 4, 2017)

While 2016 started and ended with a bang, 2017 is starting with a toot. This local case has garnered national attention not for its brilliant legal work, but because it involves an employee who was fired for farting.  There are some interesting twists and turns and novel legal issues that make this case worth examining.

First, this case was not brought by the employee, Richard Clem, but by his wife, Louann Clem.  Mrs. Clem alleged that she suffered a hostile working environment because her husband, as a result of gastric bypass surgery to combat morbid obesity and diabetes, had complications that caused him to pass gas uncontrollably.  The employer was upset that they were getting complaints from visitors that Mr. Clem was interfering with their enjoyment of smelling the pork roll cooking.

Mrs. Clem alleged that she suffered a hostile working environment because the management would constantly complain to her about Richard’s odor.  Eventually, they fired Richard and simultaneously, Mrs. Clem quit.  She brought suit alleging violation of the Americans with Disabilities Act and the New Jersey Law Against Discrimination based upon associational discrimination.

The District Court dismissed the ADA Count of the Complaint for failure to state a claim in July 2015, but gave Mrs. Clem an opportunity to amend.  The dismissal was based upon the lack of facts demonstrating a hostile working environment.  The allegations of comments were:

a. We have to do something about Rich.
b. This can’t go on.
c. Why is Rich having these side effects?
d. Is Rich following his doctor’s recommendations?
e. We cannot run an office and have visitors with the odor in the office.
f. Tell Rich that we are getting complaints from visitors who have problems with the odors.

The amended complaint did not add any additional offensive comments, but did add detail regarding the humiliation and insult that Mrs. Clem suffered as a result.  The Defendant again moved to dismiss and Mrs. Clem’s attorney only submitted a two page opposition to the motion which did not address any of the Defendant’s arguments.  The Court again dismissed.  The Court held that the alleged comments were only “inappropriate”, and not severe or pervasive, or objectively hostile or abusive.  Frankly, I think that Mrs. Clem probably should have cleared the bar on “pervasive” since she did allege that the complaints were frequent.  And the Court was clear that, even under Federal law, you either need severe or pervasive – not both.  Nevertheless, the comments and alleged harassment needs to be objectively offensive and the Court found again that the Complaint did not meet that criteria.

Associational discrimination occurs where a person suffers discrimination or retaliation because of their association with someone in a protected class.  Mrs. Clem would have cleared that hurdle, but could not allege comments that were objectively abusive or hostile enough.  While dismissing the ADA claim, the Court declined to dismiss the New Jersey LAD claim because it was only there on supplemental jurisdiction.  So while the dismissal stinks for Mrs. Clem, it may not be deadly to the whole case.

According to Mrs. Clem’s attorney, they have not decided whether to file in State Court.  Equally as interesting, Mr. Clem has not yet filed suit.  Since he was fired in February 2014, unless he has a pending EEOC complaint, we are unlikely to hear from Mr. Clem again.

Trial Judge: Freda L. Wolfson, U.S.D.J.