Rios v. Meda Pharm., Inc.

• Decision Date: 16 June 2021
• Docket Number: A-23 September Term 2020,084746
• Citation: 252 A.3d 982,247 N.J. 1
• Parties: Armando RIOS, Jr., Plaintiff-Appellant, v. MEDA PHARMACEUTICAL, INC., Tina Cheng-Avery, and Glenn Gnirrep, Defendants-Respondents, and Mylan Inc., Defendant.
• Court: New Jersey Supreme Court

247 N.J. 1

252 A.3d 982

Armando RIOS, Jr., Plaintiff-Appellant,

v.MEDA PHARMACEUTICAL, INC., Tina Cheng-Avery, and Glenn Gnirrep, Defendants-Respondents,andMylan Inc., Defendant.

A-23 September Term 2020

084746

Supreme Court of New Jersey.

Argued March 31, 2021

Decided June 16, 2021

William R. Stoltz argued the cause for appellant (Law Offices Rosemarie Arnold, attorneys; William R. Stoltz and Maria Luppino, Fort Lee, on the briefs).

Marina C. Tsatalis, of the New York bar, admitted pro hoc vice, argued the cause for respondents (Saiber and Wilson Sonsini Goodrich & Rosati, attorneys; Marina C. Tsatalis and John M. Losinger, Florham Park, on the briefs).

Deborah L. Mains argued the cause for amicus curiae New Jersey Association for Justice (Costello & Mains, attorneys; Deborah L. Mains, Mount Laurel, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

In this appeal, the Court considers whether a supervisor's use of two offensive slurs could support a hostile work environment claim. The key question is whether the alleged slurs, directed at a Hispanic employee, were severe or pervasive enough for the claim to survive summary judgment and proceed to trial. The trial court and Appellate Division found they were not and granted summary judgment for defendants. We do not agree.

Plaintiff Armando Rios, Jr. asserts that his supervisor, defendant Tina Cheng-Avery, directed ugly slurs toward him at their place of work. According to Rios, during a conversation with Cheng-Avery about his plan to buy a new house, she said "it must be hard for a Spic¹ to have to get FHA loans." A month later, Rios says Cheng-Avery commented that an actress auditioning for a company commercial "would work if she didn't look too Spicky." Cheng-Avery denies making both statements.

At this stage of the case, we view the evidence in a light most favorable to the plaintiff. We also consider the remarks from the perspective of a reasonable Hispanic employee in Rios's position. Under all of the circumstances, we find that a rational jury could conclude the demeaning and contemptuous slurs, allegedly uttered by a direct supervisor, were sufficiently severe or pervasive to create a hostile work environment in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We therefore reverse and remand the case for trial.

I.

We draw the following facts from the summary judgment record.

Rios, a Hispanic male, was hired by defendant Meda Pharmaceutical, Inc. (Meda) in May 2015 as the company's Director of Brand Marketing. Cheng-Avery and other executives interviewed Rios. Cheng-Avery, the Senior Director of Commercial Operations, was Rios's direct supervisor.

Rios asserts that, one month after he started working at Meda, he told Cheng-Avery that he and his wife were looking for a new home. Rios and Cheng-Avery were alone together in her office. According to Rios, Cheng-Avery replied, "it must be hard for a Sp-- to have to get FHA² loans." Rios said he paraphrased Cheng-Avery's words.

Several weeks later, in July 2015, Rios alleges Cheng-Avery made a second comment while the two were casting actresses for a television commercial for a Meda product. According to Rios, Cheng-Avery told him one of the actresses "would work" for the commercial "if she didn't look too Sp--ky."

Cheng-Avery denies making either statement.

Rios says he met with Glenn Gnirrep, Meda's Director of Human Resources, after each incident and reported Cheng-Avery's comments. According to Rios, Gnirrep was dismissive and did not take any notes. Gnirrep passed away in 2018 and was not deposed in this matter.

Meda had an Equal Employment Opportunity Policy and Complaint Procedure in place at the time Rios worked there. For employees who believed they may have been discriminated against, the company's policy provided as follows: "[Y]ou should report the alleged violation immediately to your direct Manager, any other Manager, a Human Resources Professional and/or an attorney in Meda's Legal Department. Please speak with whichever person you feel the most comfortable, whatever your reasons." Rios claims he followed the policy by meeting with Gnirrep. He said he did not submit a written complaint because he feared retaliation.

Cheng-Avery placed Rios on probation in February 2016 for poor performance. The following month, he was placed on a performance improvement plan. Under the plan, he met weekly with Cheng-Avery and received generally unfavorable written assessments. Meda fired Rios on June 1, 2016. Cheng-Avery certified that her decision to fire Rios was based on his "poor performance" and "had nothing to do with his national origin[ ] or gender."

Rios filed a complaint on March 31, 2017, and an amended complaint three weeks later. The amended complaint names Meda, Cheng-Avery, and Gnirrep as defendants.³ Count one alleges that defendants violated the LAD by creating a hostile work environment for Rios. The remaining counts are not relevant to this appeal.⁴ Rios points to Cheng-Avery's two comments as "[e]xamples of the ongoing and severe daily harassment and ... national origin discrimination perpetuated by" Cheng-Avery.

On March 20, 2019, the trial court granted defendants’ motion for summary judgment on all counts. As to count one, the court found that no rational factfinder could conclude Cheng-Avery's alleged comments were sufficiently severe or pervasive to create a hostile work environment. The court also noted that "[t]he undisputed facts" were "materially and substantially different" from what occurred in Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685 (1998), which is discussed below.

The Appellate Division affirmed. The court acknowledged that "[t]he word ‘sp--’ is a national origin epithet" that "even if only uttered twice, could have met the severity requirement" and "sustain[ed] a hostile [work] environment claim." But the appellate court focused on the absence of evidence that Rios faced adverse employment consequences because of his complaints about Cheng-Avery's comments, and on the lack of corroboration for his testimony.

We granted Rios's petition for certification. 244 N.J. 428, 241 A.3d 568 (2020). We also granted leave to the New Jersey Association for Justice (NJAJ) to appear as amicus curiae.

II.

Rios argues that summary judgment was inappropriate because Cheng-Avery's use of "multiple racial slurs specifically directed at" him was sufficiently severe or pervasive to support a claim for a hostile work environment. He stresses that Cheng-Avery made the comments in her role as his supervisor and argues that the principles outlined in Taylor apply directly here.

The NJAJ, as amicus, echoes Rios's arguments and submits the evidence in the record is sufficient to allow a reasonable jury to conclude that Rios "was the victim of race/national origin harassment" under the LAD. Rios and the NJAJ also caution against conflating the elements of a harassment claim with a disparate treatment or retaliation claim.

Defendants counter that the Appellate Division applied Taylor to the facts of this case and correctly concluded there were no disputed facts that could establish Rios's treatment was severe enough to support a hostile work environment claim. Defendants add that Taylor should not be extended to the point "that any racial slur uttered in the workplace automatically creates liability for a hostile work environment." Defendants also emphasize certain alleged weaknesses in Rios's claim, including that Cheng-Avery was not a high-level executive at Meda; that her comments were not made in the presence of others and cannot be corroborated; and that a key witness, Gnirrep, died before he was deposed.

III.

Rios brought his claim under the LAD. Its goal is "nothing less than the eradication of the cancer

of discrimination." Raspa v. Off. of Sheriff of Gloucester, 191 N.J. 323, 335, 924 A.2d 435 (2007) (quoting Fuchilla v. Layman, 109 N.J. 319, 334, 537 A.2d 652 (1988) ).

The LAD prohibits discrimination based on

race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.

[ N.J.S.A. 10:5-12(a).]

Based on any of the above grounds, it is "an unlawful employment practice" or "unlawful discrimination" for an employer "to refuse to hire or employ," "to discharge or require to retire," or "to discriminate ... in compensation or in terms, conditions or privileges of employment." Ibid.

In the statute itself, the Legislature declared that "discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State." N.J.S.A. 10:5-3. The statute also recognizes as a civil right "the opportunity to obtain employment." N.J.S.A. 10:5-4. The law is thus intended to protect "the civil rights of individual aggrieved employees" as well as "the public's strong interest in a discrimination-free workplace." Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 600, 626 A.2d 445 (1993) (citing Fuchilla, 109 N.J. at 335, 537 A.2d 652 ); see also Alexander v. Seton Hall Univ., 204 N.J. 219, 227-28, 8 A.3d 198 (2010) ; Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98, 106-07, 995 A.2d 1094 (2010).

The LAD is remedial legislation that should be liberally construed to advance its purposes. Smith v. Millville Rescue Squad, 225 N.J. 373, 390, 139 A.3d 1 (2016) ; N.J.S.A. 10:5-3.

This Court outlined the elements of a hostile work environment claim under the LAD in Lehmann. 132 N.J. at 603-04, 626 A.2d 445. In that groundbreaking case, the...