Nuness v. Simon & Schuster, Inc.

• Decision Date: 29 June 2018
• Docket Number: Civil Action No. 16–2377(JBS/KMW)
• Parties: Tyshanna NUNESS, Plaintiff, v. SIMON AND SCHUSTER, INC., et al., Defendants.
• Court: U.S. District Court — District of New Jersey

325 F.Supp.3d 535

Tyshanna NUNESS, Plaintiff,

v.SIMON AND SCHUSTER, INC., et al., Defendants.

Civil Action No. 16–2377(JBS/KMW)

United States District Court, D. New Jersey.

Signed June 29, 2018

Lance D. Brown, Esq., Toni L. Telles, Esq., LANCE BROWN AND ASSOCIATES, LLC, 1898 Route 33, Hamilton, NJ 08690, Attorneys for Plaintiff

Paul C. Evans, Esq., Andrew Ashworth Napier, Esq., MORGAN, LEWIS & BOCKIUS LLP, 1701 Market St., Philadelphia, PA 19103, Attorneys for Defendants

JEROME B. SIMANDLE, U.S. District Judge

I. INTRODUCTION

Plaintiff Tyshanna Nuness ("Plaintiff"), filed this law suit against her previous employer, Simon & Schuster, Inc. ("Defendant"), wholly owned by CBS Corporation (collectively "Defendants"), as well as John Does 1–100 and ABC Corps 1–100, alleging racial harassment, constructive discharge, and retaliatory discharge under the New Jersey Law Against Discrimination ("NJLAD"). [Docket Item 20.]

Before the Court is Defendant's Motion for Summary Judgment on all claims pursuant to Fed. R. Civ. P. 56. [Docket Item 25.] Plaintiff opposes the motion for summary judgment [Docket Item 28].

The principal issues presented by Defendant's motion are whether Plaintiff can establish a prima facie case for racial harassment by (1 presenting evidence of severe or pervasive conduct; and, (2) presenting evidence that Defendants are vicariously liable for the alleged harassment. Additionally, before the Court is also the question of whether Plaintiff has proffered evidence to create a genuine dispute of material fact that a reasonable jury could find meets the high burden of showing constructive discharge; and if Plaintiff experienced an adverse employment action, whether there is the requisite causal connection to racial harassment in order to establish retaliation.

For the reasons set forth below Defendant's Motion for Summary Judgment will be denied.

II. BACKGROUND

A. Factual Background

1. Plaintiff's Employment and Defendant's Non–Discrimination and Anti–Harassment Policy

Plaintiff is an African American female who was previously employed as a Line Picker with Defendant, beginning in December 2014. (Def. SMF ¶ 1–2.) On December 29, 2014, Plaintiff began working the night shift, Sunday to Thursday from 11:00 p.m. to 7:00 a.m. (Pl. Dep. at 27:10–21.) In this role, Plaintiff "filled cartons with books to fulfill customer orders," and her immediate supervisor was Marcellus Wilson ("Wilson"). (Def. SMF ¶ 2; Pl. Dep. at 31:3–10.)

While employed with Defendants, Christopher Hankins ("Hankins"), a Caucasian male, was one of Plaintiff's co-workers and fellow Line Picker within the same department as Plaintiff. (Def. SMF ¶ 2; Pl. Dep. at 41:12–14.) Hankins was in his first year of employment with Defendant. (Pl. SMF ¶ 37.) He attended the same meetings as Plaintiff, and they performed the same jobs. (Pl. Dep. at 41:20–23.) At times, Plaintiff and Hankins were on the same two to three-person team while working. (Id. at 41:24–42:2.)

According to Plaintiff, one week before Hankins made a racial comment to her, she heard Hankins making inappropriate sexual jokes and was aware of other inappropriate comments Hankins made. But prior to March 12, 2015, Hankins did not make inappropriate comments to Plaintiff, nor did Plaintiff complain of specific comments. (Pl. SMF ¶ 51–42; Pl. Dep. 74 21–22.) Plaintiff did, however, complain to Wilson about Hankins "a number of times[,]" stating he was "erratic," and further questioned his employment with Defendants. (Def. SMF ¶ 7; Pl. SMF ¶ 53.) Plaintiff stated that she heard Hankins discussing how Defendants "won't fire [him]" and that he can say what he wants because "they needed his father's signature." (Pl. Dep. at 75:15–24–76:8.) Defendant alleges, and Plaintiff does not dispute, that Defendant's Human Resources Department did not receive any formal complaints about Hankins regarding inappropriate comments or conduct prior to Plaintiff's complaint on March 12, 2015. (Def. SMF ¶ 6; Tuccillo Dep. at 45:18–46:3.) Plaintiff does argue that "plenty of reports concerning [Hankins's] bothersome conduct [were] made to a supervisor (although these reports were not turned over)." [Docket Item 28–2 at 16.]

Pursuant to Defendants' policies, problems with an employee during his or her first year of employment with Defendant usually led to termination. (Tuccillo Dep. at 122:4–15; Pl. Ex. H.) Specifically, "violations of attendance and performance" are "situations that would warrant somebody within their first year to be terminated without written warning,"; notwithstanding this fact, Defendant's HR representative testified that situations of racial discrimination and harassment warrant warnings rather than termination without written warning. (Tuccillo Dep. at 122:22–123:23; Pl. SMF ¶ 61; Pl. Ex. H.)

Despite this distinction, Defendants argue that they have and maintain a "zero tolerance policy towards racial discrimination." (Pl. SMF ¶ 54.) The "Non-discrimination and Anti–Harassment Policy ("the Policy") " ‘strictly prohibits harassment’ on the basis of any protected characteristic" and prohibits retaliation. (Def. Ex. C.) The policy specifically provides that:

CBS is committed to a work environment in which all individuals are treated with respect and dignity. Each individual has the right to work in a professional atmosphere that promotes equal employment opportunities and prohibits discriminatory practices, including harassment. Therefore, CBS expects that all relationships among persons in the workplace will be business-like and free of bias, prejudice and harassment.

(Def. Ex. C at 1.) "The policy outlines the procedure for reporting an incident of harassment, discrimination or retaliation." (Def. SMF ¶ 30.) The policy also explains who employees should report such conduct to, which includes but is not limited to immediate supervisors and Human Resources ("HR"), before the conduct "becomes severe or pervasive" (Def. Ex. C at 2.) According to the policy, after a complaint is made, a subsequent investigation will ensue, which includes "speaking to the alleged harasser and complainant, along with any witnesses." (Def. Ex. C at 3.) After the investigation, HR is to notify the complainant that the investigation concluded, and what action was taken as a result. Def SMF ¶ 32.) Employees who engage in harassment are disciplined and may be terminated. (Def. SMF ¶ 28.)

Defendant informs all its employees about the policy and they must sign off on it. (Def. SMF ¶ 34.) Accordingly, Plaintiff was aware of and received a copy of this policy, and further "signed acknowledgement." (Def. SMF ¶ 35–36.)

2. The Racial Harassment Incident

At the end of Plaintiff's shift, on March 12, 2015, as Plaintiff, her coworker Tanisha Williams ("Williams"), and Hankins were getting ready to go home and during a break time, Plaintiff and Williams were engaged in conversation when Hankins approached the two and interrupted their conversation. (Pl. Dep. at 44:1–44:12; Tuccillo Dep. at 62:4–10.) Plaintiff testified that Hankins interrupted saying something in the nature of, "You're cute"; Plaintiff did not respond. (Pl. Dep. at 44:13–44:17.) Hankins repeated himself but added an additional thought: "[O]h, you're a cute little nigglet." Id. at 44:19–44:20. Plaintiff asked Hankins, "What is that supposed to mean?" and Hankins responded, "You know how pigs are cute, like a pig nigger." Id. at 44:21–45:1. Tanisha was present for this conversation (Pl. SMF ¶ 49; Tuccillo Dep. at 59:24–53:16), and subsequently confirmed that Hankins called Plaintiff a "niglet." (Pl. Ex. L. at 2.)

Plaintiff did not say anything else to Hankins. She walked away and went home. (Pl. Dep. at 45:2–45:5.) Plaintiff and Hankins may have been sitting only "a table or two apart" when the comment was made. (Tuccillo Dep. at 62:4–10.)

After Plaintiff went home, she "couldn't go to sleep" and called Wilson, her supervisor, that same morning to report what Hankins had said. (Pl. Dep. 45:8–45:14.) Wilson told Plaintiff "that it was above his pay grade and [she] needed to take it to HR." Id. at 45:15–45:16. Plaintiff stayed up, waiting for someone from HR to be in the office, and called HR that same morning. Id. at 47:18–47:23; Def. SMF ¶ 9; Pl. SMF ¶ 56. Plaintiff spoke with Jessica Rivera in HR and specifically notified her that this comment was racial and offensive to her. (Pl. Ex. L at 1.) She also reported Williams as a witness to the incident, and HR notified Plaintiff it would be commencing an investigation into the matter. Id.

3. Defendant's Investigation of the Racial Comment

Defendant' Director of HR, Jackie Tuccillo ("Tuccillo"), approved Plaintiff's absence from work for the two days immediately following Hankins comment while it investigated the incident. (Def. SMF ¶ 10.) Rivera advised Plaintiff of this when Plaintiff first notified HR on March 11, saying that "while they were looking into what happened, that [Plaintiff] didn't have to come in and they would let [her] know what was going on." (Pl. Dep. at 50:7–50 :10.) Plaintiff was not paid for those two days. Id. at 50:14–50:20.

As part of the investigation, HR contacted Williams to question her about the incident she witnessed. (Pl. Ex. L at 1.) Without prompting, Williams indicated that she knew what HR was referring to, stating, "[Y]es, Chris!" Id. Williams explained that Hankins was initially saying "some sexual remark or joke to" Plaintiff when he said he had a "funny joke for ya'll." Id. at 2. According to Williams, Hankins proceeded by stating "you know how you see a pig and you say pig[l]et?! I can't say the ‘N’ word so I'm gonna say little niglet." (Id. at 2.) Williams stated that she heard Plaintiff say, "What," but nothing after that. Id. Williams additionally provided further information about Hankins' behavior with other employees, where she heard him speak "inappropriately on several occasions." Id. According to Tanisha, Hankins was "constantly referring to females as bitches and [wa]s always using...