Alan Schorr’s Employment Case of The Week ending July 3, 2015

Dunkley v. S. Coraluzzo Petroleum Transporters, — N.J. Super. —-, 2015 N.J. Super. LEXIS 106, (NJ Appellate Division June 24, 2015)

Discriminatory harassment cases involving hostile working environment continue to become more difficult following the New Jersey Supreme Court’s recent decision in Aguas v. State, 220 N.J. 494 (2015).

According to the facts explained by the Court, Brian Dunkley, an African-American, began employment with the defendant as a driver in May 2010.  Defendant’s policy was to have new employees trained on the job for two weeks by a more experienced driver.  Richard Harrington was assigned to train Dunkley under this policy.  During the course of this training period, Harrington made numerous racist remarks, including references to the Ku Klux Klan, which Dunkley felt were meant to intimidate him and make him feel uncomfortable.  Dunkley eventually complained to management about the comments and the poor training he was receiving.

Defendant’s management agreed with Dunkley and assigned a new trainer and severed all contact between Dunkley and Harrington.  Dunkley was still uncomfortable at work and felt ostracized because he had complained.  Shortly thereafter, he made a mistake due to inattention which caused a gasoline spill.  Angry and frustrated, Dunkley resigned.  Dunkley then sued, alleging that he had suffered as the result of a hostile working environment under both a negligence and a vicarious liability theory.

The trial court granted summary judgment on all theories and Dunkley appealed.  The Appellate Division affirmed, 437 N.J. Super. 366 (2014).  Dunkley then appealed to the NJ Supreme Court.  While the matter was pending at the Supreme Court, the decision was released in Aguas.  The Supreme Court decided to remand Dunkley’s case back to the Appellate Division with instructions to address, “at a minimum”:

  1. whether there is a genuine issue of material fact with respect to plaintiff’s direct claim for negligence under the Law Against Discrimination; and
  2. whether there is a genuine issue of material fact with respect to plaintiff’s claim for vicarious liability for the actions of a supervisor under the LAD based on a hostile work environment.

On remand, the Appellate Division affirmed its previous decision.  The Aguas case certainly changed the landscape of hostile working environment claims in New Jersey, holding that New Jersey, following Federal law, permits an employer to assert an affirmative defense that the employer maintained and followed it own anti-harassment policy.  The Appellate Division found that the employer here maintained an effective anti-harassment policy and that Dunkley was removed from Harrington after he complained.  Thus, the Court held that the employer was not negligent.
With regard to vicarious liability, the Court held that Harrington was not Dunkley’s supervisor, and therefore the employer was not vicariously liable.  The Court also held that Dunkley had not proven that he suffered an adverse action.  Accordingly the Appellate Division affirmed.

If Dunkley decides to go back to Supreme Court, it will be based on the Appellate Division’s decision to decline to take two important issues into consideration.  The Plaintiff argued that he should be permitted to present to the jury the issue of whether the  employer’s policy was truly effective.  The Plaintiff also argued that it should be a question for the jury as to whether the employer should have fired the racist employee.  It seems to me that these are issues of material fact that would merit the denial of summary judgment.  But it is unlikely that this Supreme Court will be indulgent in light of its recent decision in Aguas.  Ultimately, Dunkley’s decision to quit rather than to continue to complain was the cause of his case’s dismissal.

I am always very hesitant to take on cases where the employee has quit, and this case demonstrates why quitting is so dangerous to a case.  If an employee is at wit’s end with a hostile working environment, there are always better options than quitting.  The employee can continue to complain and keep careful notes as to the employer’s reaction.  If the employee is so stressed out that he or she cannot continue to work, then the employee should consider seeing a health care professional to determine whether a medical leave of absence would be warranted, during which time an attorney can negotiate with the employer.

The bottom line is that hostile working environment claims where there is no clear adverse action and where it is not clear whether the harasser is a manager are extremely risky. Litigants and attorneys should proceed with caution.

Plaintiff’s Counsel: Richard E. Yaskin; William Riback.

Defendant’s Counsel: Erin L. Peters and Daniel B. McMeen, Golden, Rothschild, Spagnola, Lundell, Boylan & Garulo, P.C.

Judges: Lihotz, Maven and Hoffman.

Opnion: Per Curiam.