On June 24, 2015, the New Jersey Appellate Division upheld, for the second time, summary judgment in favor of GRSLB&G client, S. Coraluzzo Petroleum Transporters in Dunkley v. S. Coraluzzo Petroleum Transporters, A-3252-12T1. The underlying action involved claims of employment discrimination in violation of the New Jersey Law Against Discrimination (LAD) in addition to a violation of the Conscientious Employee Practices Act (CEPA), which were ultimately dismissed following a successful summary judgment motion after the close of discovery. The Plaintiff appealed the decision, and on September 16, 2014, the Appellate Division upheld the grant of summary judgment.
The matter was then brought before the New Jersey Supreme Court, who granted Certification in light of the recent opinion, Aguas v. State, 220 N.J. 494, (2015). The Supreme Court summarily remanded the matter to the Appellate Division to consider, at a minium, two issues: (1) Whether there was a genuine issue of material fact with respect to the Plaintiff’s direct claim for negligence under the LAD, based on a hostile work environment; and (2) Whether there was 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. In a published decision, the Appellate Division reaffirmed dismissal.
The Aguas Court instructed that five factors set forth in Gaines v. Bellino, 173 N.J. 301 (2002), are relevant to the analysis of a Plaintiff’s claim for negligence under the LAD. The factors are: (1) the existence of formal policies prohibiting harassment in the workplace; (2) complaint structures for employees’ use, both formal and informal in nature; (3) anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization; (4) the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and (5) an unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.
The record developed during discovery in the Dunkley v. S. Coraluzzo Petroleum Transporters lawsuit established that: (1) S. Coraluzzo had effective anti-discrimination and reporting policies; (2) S. Coraluzzo trained management and employees, including the Plaintiff, in the policies and procedures; (3) the Plaintiff failed to report any alleged inappropriate conduct in accordance with the polices; (4) management affirmatively sought out the Plaintiff and obtained his complaints at only after their prompting; (5) S. Coraluzzo immediately transferred the Plaintiff to a new trainer upon learning of the complaints; and (6) the Plaintiff experienced no discriminatory conduct following his transfer.
After analyzing the facts in light of the factors adopted by the Aguas Court, the Appellate Division concluded:
Taken as a whole, this record reflects defendant did not breach its duty or ignore the serious legal responsibilities it owes its employees to eradicate racial discrimination in its workplace. We conclude plaintiff has not identified factual support to show the elements of a negligence action against defendant.
The Court similarly determined that S. Coraluzzo was not vicariously liable for the alleged discriminatory conduct perpetrated against the Plaintiff by another employee. The Aguas Court adopted an affirmative defense in LAD actions based on vicarious liability, which is available so long as an employer takes no tangible employment action against the employee. Tangible employment actions occur when harassment culminates in discharge, demotion, or undesirable discharge; actions that did not occur in the Dunkley matter.
The affirmative defense is applicable if the employer establishes that it acted in a reasonable and prompt manner to prevent or correct the harassing behavior and the Plaintiff unreasonably failed to take advantage of the preventative or corrective measures implemented to avoid further harm.
The Appellate determined, after reviewing the record, that S. Coraluzzo took no tangible employment action against the Plaintiff. As a consequence, S. Coraluzzo was entitled to the affirmative defense against Plaintiff’s claims of vicarious liability. The Appellate Division then found that:
despite training and the opportunity to formally register his complaint with his manager or HR, unreasonably failed to initiate corrective action. It was defendant who undertook responsibility to determine the reasons why plaintiff failed to return to work, then exercised reasonable care to prevent and correct harassing conduct by the prompt enforcement of its anti-discrimination policy. Once the facts were discovered, no further instance of discrimination occurred.
The Dunkley opinion offers guidance in how an employer can protect themselves from LAD liability. The decision highlights the fact that so long as an employer maintains effective anti-harassment policies and procedures, adequately trains their employees, and takes appropriate actions to stop harassment, they can potentially shield themselves from claims of employment discrimination.
The underlying action, appeal, and remand were handled by Daniel B. McMeen, Esq. and Erin L. Peters, Esq,, who both practice in the litigation department of GRSLB&G.