DeCapua v. Bell Atlantic-New Jersey, Inc.

• Decision Date: 21 January 1998
• Docket Number: ATLANTIC--NEW
• Parties: , 77 Fair Empl.Prac.Cas. (BNA) 277, 73 Empl. Prac. Dec. P 45,431 Samuel DeCAPUA, Plaintiff, v. BELLJERSEY, INC., Defendant.
• Court: New Jersey Superior Court

Page 110

313 N.J.Super. 110

712 A.2d 725, 77 Fair Empl.Prac.Cas. (BNA) 277,

73 Empl. Prac. Dec. P 45,431

Samuel DeCAPUA, Plaintiff, v. BELL ATLANTIC--NEW JERSEY, INC., Defendant.

Superior Court of New Jersey,

Law Division,

Essex County.

Decided Jan. 21, 1998.

Keith A. McKenna, Bloomfield, for plaintiff (Ambrosio, Kyreakakis, DiLorenzo, Moraff & McKenna, attorneys; Mr. McKenna, on the brief).

James P. Lidon, Newark, for defendant (Carpenter, Bennett & Morrissey, attorneys; Francis X. Dee, of counsel; Mr. Dee and Mr. Lidon, on the brief).

PAYNE, J.S.C.

This is a reverse discrimination, hostile work environment action instituted pursuant to N.J.S.A. 10:5-12. ¹ At issue is the nature of the proofs that plaintiff must offer in order to establish a prima facie case. In his suit, plaintiff Samuel DeCapua, a white male of Italian descent, seeks damages from his employer, Bell Atlantic--New Jersey, Inc., under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42, as the result of alleged racially-based harassment by plaintiff's black supervisor, Gary Farrow, occurring in the period from February to December, 1995. This harassment allegedly took the form of unfairly imposed work rules, excessive discipline, threats of discipline, heightened supervisory surveillance, humiliation before coworkers and customers, and the use of racially-charged language. Plaintiff also alleges that his black co-workers were not equally or similarly subjected to discipline or threats of discipline for like infractions, or were subjected to lesser disciplinary sanctions. Additionally, plaintiff alleges that his black co-workers were not subjected to equal or similar supervisory surveillance. Plaintiff further alleges that Farrow expressly linked his antagonism toward DeCapua with plaintiff's race in remarks he made directly to plaintiff and to one of plaintiff's black co-workers, Herman Jackson.

Defendant Bell Atlantic has sought summary judgment on plaintiff's LAD claim. It argues that, because plaintiff is a member of a white racial majority, rather than a member of a racial minority, and his hostile work environment claim is founded on conduct that is not facially race-based, plaintiff must meet a heightened standard to establish his prima facie case, and he has failed to do so. Under this heightened standard, Bell Atlantic argues, plaintiff must show, as variously phrased, that Bell Atlantic engages in "broad-based or systematic racism against Caucasians," or that "widespread anti-Caucasian discrimination has occurred at Bell Atlantic," or that Bell Atlantic has engaged in a "pattern of discrimination" against Caucasians. Bell Atlantic argues further that the standard that it has set forth is mandated by the New Jersey Supreme Court's decision in Erickson v. Marsh & McLennan, 117 N.J. 539, 569 A.2d 793 (1990), as followed in dictum in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 605-06, 626 A.2d 445 (1993).

In Erickson, the Court held, in a case alleging gender-based reverse employment discrimination as a basis for unlawful discharge, that:

plaintiff "must substantiate ... that the 'background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority.' " Erickson [v. Marsh & McLennan Co., Inc.], 227 N.J.Super. , 87 [545 A.2d 812 (App.Div.1988) ] (citing Murray v. Thistledown Racing Club Inc., 770 F.2d 63, 67 (6th Cir.1985)).

[Erickson, supra, 117 N.J. at 551, 569 A.2d 793.]

This court finds that Bell Atlantic has misconstrued the elements of the test set forth in Erickson; particularly, in a case such as this that alleges a hostile work environment based upon reverse discrimination, not wrongful discharge or other allegedly wrongful job action. Although it agrees that Erickson 's heightened standard is applicable to this reverse discrimination claim against an employer, it finds that the standard can be met by evidence that does not necessarily include proof of systemic discrimination by the employer against the majority. The basis for this court's determination follows.

A. A requirement of evidence of systemic discrimination is inconsistent with the nature of hostile work environment claims and subverts the remedial purpose of such actions.

In a test established in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973) ² and adopted in New Jersey, the Unites States Supreme Court held that to establish a prima facie circumstantial case of discrimination under federal law, a plaintiff must demonstrate that he/she (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection, the position remained open and the employer continued to seek applicants with qualifications comparable to plaintiff's. Ibid. See also, Peper v. Princeton University Board of Trustees, 77 N.J. 55, 82-83, 389 A.2d 465 (1978); Goodman v. London Metals Exchange Inc., 86 N.J. 19, 31, 429 A.2d 341 (1981); Andersen v. Exxon Co., 89 N.J. 483, 492, 446 A.2d 486 (1982); Clowes v. Terminix International, Inc., 109 N.J. 575, 595-96, 538 A.2d 794 (1988).

In Erickson, a reverse discrimination claim of wrongful termination, the Court replaced the first prong of the McDonnell Douglas test (that plaintiff belongs to a protected class) with the previously-stated requirement that the plaintiff show "that the background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority." Erickson, supra, 117 N.J. at 551, 569 A.2d 793. In doing so, the Court agreed with those federal courts that reasoned that the use of the simple, self-evident, first prong of McDonnell Douglas is appropriate only for claims by minority plaintiffs, because anti-discrimination laws were intended to address " 'a legacy of racism so entrenched that we presume acts, otherwise unexplained, embody its effect.' " Ibid. (quoting Murray, supra, 770 F.2d at 67). That presumption, the Erickson Court held, was inapplicable to the plaintiff before the Court, a white male, because he was a member of a class that has "not historically been victimized by discrimination." Id. at 552, 569 A.2d 793.

The rationale of Erickson appears in the New Jersey Supreme Court's later decision in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 605-06, 626 A.2d 445 (1993), a claim by a female employee that sex harassment had created a hostile work environment. In that case, the Court held that in order to state a claim, a female plaintiff "must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment." Id. at 603, 626 A.2d 445. Addressing the first prong (that plaintiff suffered discrimination because of her sex), the Court noted that not all sexual harassment is sex-based on its face. Id. at 605, 626 A.2d 445. It then observed that a plaintiff could nonetheless demonstrate harassment because of sex if she produced evidence of non-facially sex-based harassment accompanied by conduct that was obviously sex-based, or she produced evidence that the conduct at issue was directed only against women. Ibid. "All that is required is a showing that it is more likely than not that the harassment occurred because of the plaintiff's sex. For a female plaintiff, that will be sufficient to invoke the rebuttable presumption that the harassment did in fact occur because of the plaintiff's sex." Ibid. In contrast, the Court observed in dictum, in order for a male to invoke the presumption in a sex harassment case in which the conduct was facially neutral, he must make the additional showing that the defendant employer is the rare employer who discriminates against the historically-privileged majority group. Id. at 605-06, 626 A.2d 445 (citing Erickson, supra, 117 N.J. at 551, 569 A.2d 793).

It is Bell Atlantic's position in this case that the conduct upon which plaintiff relies to establish his claim is facially neutral, ³ and thus that he must meet Erickson 's burden of establishing a pattern of discrimination against whites, or discrimination against whites that is more "systemic" and "widespread" than the harassment of one employee by one supervisor.

This Court disagrees with Bell Atlantic. Such a requirement could preclude an otherwise deserving plaintiff from having his day in court on a claim--employment discrimination based upon a hostile work environment--that has been construed in every other context to be actionable on evidence of the conduct of one supervisor toward one employee.

Both the reasoning that underlies the recognition of a cause of action for hostile work environment employment discrimination and the factual circumstances that have been recognized as establishing such a claim militate against a requirement that plaintiff demonstrate "widespread" discrimination or "a pattern of" discrimination against those who share the plaintiff's protected status. Hostile work environment claims are recognized because courts have acknowledged that adverse treatment of an individual that has led to psychological injury, humiliation and/or intimidation as a necessary part of an employee's work can be a form of employment discrimination, even if the employee continues in the job. The United States Supreme Court has rejected the proposition that Title VII of the Civil Rights Act, by prohibiting discrimination with respect to "compensation, terms, conditions or privileges" of employment, evinces a legislative intent to restrict cognizable claims to those that show a "tangible loss" of "an economic character" and thus to preclude claims based on the "purely psychological aspects of the workplace environment." See Meritor Savings Bank, FSB v. Vinson, 477...