On September 16, 2014, the New Jersey Appellate Division upheld a grant of summary judgment in favor of GRSLB&G client, S. Coraluzzo Petroleum Transporters. Dunkley v. S. Coraluzzo Petroleum Transporters, A-3252-12T1, involved claimed violations of the New Jersey Law Against Discrimination (LAD), including a hostile work environment, constructive discharge, and a violation of public policy. The Complaint was later amended to include a claim for violating the Conscientious Employee Protection Act (CEPA).
The Plaintiff, Brian Dunkley, commenced his employment with S. Coraluzzo Petroleum Transporters (“Coraluzzo”) as an oil delivery driver on May 4, 2010. He was provided an employee handbook, which contained policies against discrimination and complaint mechanisms. The Plaintiff then went through two days of in-class training, where the policies were specifically discussed. The final aspect of his training involved “on-road” on the job training, where he was paired up with another oil delivery driver, Richard Harrington, who taught the Plaintiff how to perform the acutal job of delivering oil.
During his on-road training, the Plaintiff claims he was subject to racially derogatory comments by Mr. Harrington. When the Plaintiff failed to return to work, members of Coraluzzo management contacted him to inquire about his absence. The Plaintiff subsequently met with management in a private meeting at which point, for the first time, the Plaintiff recounted the incidents with Mr. Harrington.
Following the meeting, the Plaintiff was transferred to a new trainer. When he returned to work, he never saw or spoke with Mr. Harrington again, nor did he suffer any additional racially-based treatment. Nevertheless, the Plaintiff contends he suffered constructive discharge because his complaint was not kept confidential and he felt ostracized by co-workers, who “would shy away” from him.
While the Court found that the Plaintiff made out a prima facie case of employment discrimination, the Court held that summary judgment was warranted because the employer could not be held vicariously liable for the conduct of Mr. Harrington. Under the LAD, an employer’s vicarious liability for the conduct of a supervisor occurs if the employer negligently or recklessly fails to have an explicit policy that bans harassment and that provides an effective procedure for the prompt investigation and remediation of such claims.
Here, it was undisputed that Coraluzzo maintained a handbook with well-defined anti-discrimination policies and complaint mechanisms. The handbook was provided to all employees, including the Plaintiff, and each were directed to read the handbook completely and become familiar with all policies and information provided. The effectiveness of the handbook was demonstrated by the fact that Coraluzzo followed the policies, investigated the matter, and took actions to protect the Plaintiff from further harassment. As these actions were undisputed, the Court upheld the trial court’s decision, which held that Coraluzzo was not vicariously liable for Mr. Harrington’s conduct.
The Plaintiff next argued that a reasonable jury could conclude that he was constructively discharged. The Court was unpersuaded. The Court determined that constructive discharge requires not merely severe or pervasive conduct, but conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it. The Plaintiff’s proofs, however, failed to present a factual dispute allowing a jury to reasonably conclude that Coraluzzo’s responsiveness and other conduct was so unbearable that a reasonable person would be forced to separate from the employment.
The effect of the decision, which has been approved for publication, offers a measure of protection to employers. So long as employers maintain effective anti-harassment policies and procedures, adequately train their employees, and take appropriate actions to stop harassment, they can potentially shield themselves from vicarious liability.
The underlying action and appeal were handled by Daniel B. McMeen and Erin L. Peters, who both practice in the litigation department of GRSLB&G.