Taylor v. Metzger

• Decision Date: 18 February 1998
• Citation: 152 N.J. 490,706 A.2d 685
• Parties: , 76 Fair Empl.Prac.Cas. (BNA) 58, 72 Empl. Prac. Dec. P 45,231 Carrie TAYLOR, Plaintiff-Appellant, v. Henry W. METZGER, Burlington County Sheriff, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 490

152 N.J. 490

706 A.2d 685, 76 Fair Empl.Prac.Cas. (BNA) 58,

72 Empl. Prac. Dec. P 45,231

Carrie TAYLOR, Plaintiff-Appellant, v. Henry W. METZGER, Burlington County Sheriff, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 9, 1997.

Decided Feb. 18, 1998.

Clifford L. Van Syoc, Cherry Hill, for plaintiff-appellant (Clifford L. Van Syoc, attorney; Evan A. Blaker, on the brief).

William B. Scatchard, Jr., Mount Laurel, for defendant-respondent (Capehart & Scatchard, attorneys; Mr. Scatchard and Alison M. Nissen, on the brief).

The opinion of the Court was delivered by

HANDLER, J.

The central issue in this appeal is whether a single derogatory racial comment directed against a subordinate employee by a supervisor can create a hostile work environment in violation of the Law Against Discrimination. A closely-related issue is whether, the utterance of this comment also constitutes the tort of the intentional infliction of emotional distress.

The employee in this case, a county sheriff's officer, claims that her employer, the county sheriff, uttered a racial epithet against The trial court entered a summary judgment for defendant on that claim. The court also dismissed other counts of the complaint, namely, intentional infliction of emotional distress, prima facie tort, and violation of federal civil rights statutes. ¹ The Appellate Division affirmed that judgment in an unreported decision. This Court granted plaintiff's petition for certification. 147 N.J. 578, 688 A.2d 1053 (1997).

her in the presence of another supervisor, the undersheriff. The victim filed a complaint against the sheriff alleging primarily that the racial insult constituted a violation of the Law Against Discrimination.

I

Because this case was determined on the basis of summary judgment, the evidence must be evaluated under this Court's summary judgment standard. That standard precludes summary judgment if the competent evidence, when viewed in the light most favorable to the non-movant, is sufficient to permit a rational factfinder to resolve the disputed factual issues in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). The evidence assessed under that standard supports the following facts.

In 1972, plaintiff Carrie Taylor began working as a sheriff's officer in the office of the Burlington County Sheriff. On January 31, 1992, Taylor, who is African American, was at the Burlington County Police Academy for firearms training and weapons qualification. While there, she encountered defendant Henry Metzger and Undersheriff Gerald Isham. Taylor said hello, and, in response, Metzger turned to Isham and stated: "There's the jungle bunny." Isham laughed. Plaintiff believed the remark to be a demeaning and derogatory racial slur, but she did not reply. She became a "nervous wreck," immediately began crying, and went to Taylor thereafter consulted with her union attorney and a member of the union grievance committee. On February 5, 1992, accompanied by two union grievance committee members, Taylor met with Metzger and Undersheriff Davis. Plaintiff spoke to defendant about her grievance and demanded a written apology. Defendant stating that he had used the phrase "jungle bunny" with a different connotation in the Marine Corps, claimed that he was not aware that the remark had a derogatory connotation. Plaintiff told defendant that the remark was very insulting and degrading. However, defendant badgered plaintiff for interpreting the remark as a racial slur and brought her to tears. At that point, Undersheriff Davis said that, without a doubt, the statement was offensive. Defendant then stated that he needed to think before deciding whether to apologize in writing and explained that plaintiff could use such a letter against him.

                the bathroom.  Taylor subsequently returned to the Police Academy classroom, in which she was the only African American and the only woman.  Holding back tears, she related her experience to co-workers.  The officers laughed;  one responded:  "I'm a black Irishman."   This comment further offended plaintiff, who felt their reactions were insensitive
                

The following day, defendant summoned Taylor to meet with him. Metzger offered a written apology in which he admitted that he called Taylor a "jungle bunny," but also claimed that Taylor had worn camouflage fatigues at the time of the comment. Taylor refused to accept the apology because the description of her clothing was not factually accurate; in fact, she had worn blue jeans and a navy sweatshirt. Defendant hassled her for rejecting the letter for that reason.

On February 10, 1992, Taylor again met with defendant. Metzger again attempted to present a letter of apology to Taylor. Stating that she would like an attorney present before accepting anything from Metzger, she refused the letter.

Taylor disclosed the circumstances of the event to the media and, as a result, the incident was publicized in several newspapers Following the incident, plaintiff did not lose any income and her basic job duties remained unchanged. However, she lost her position as floor supervisor. Despite the fact that she was told that only sergeants were eligible for that position, she believed the incident caused her to lose the position. Plaintiff felt she suffered a loss of dignity and self-respect. Other sheriff's officers acted coolly toward her and were afraid to talk to her. She was labeled a troublemaker and believed that her co-workers were told to stay away from her. One, who had attended the February 5 meeting, was subsequently told to "bow out" of the matter; he feared continued involvement with plaintiff's grievance.

                including the Philadelphia Inquirer, Courier Post, and Burlington County Times.   Thereafter, plaintiff received harassing telephone calls and one piece of hate mail.  She filed a report with the Willingboro Police Department regarding the harassment and changed her telephone number to an unlisted one
                

Plaintiff claims that the incident caused her emotional distress for which she consulted a psychiatrist, Dr. Ira L. Fox, on a periodic basis between May 1992 and March 1993. She was scared and remained "a nervous wreck." She was afraid to leave work by herself and lived in constant fear of reprisal; she bought a bullet-proof vest. Plaintiff suffered from severe middle and nighttime insomnia; experiencing nightmares and flashbacks of the incident, she would wake up hourly and then have trouble falling back asleep. She also had mood changes and developed a psychiatric itch. Taylor told Dr. Fox that she had been losing her hair since the incident. Dr. Fox treated her with an anxiolytic, Ativan. He diagnosed her with "adjustment disorder with mixed emotional features" and later revised that diagnosis to "post-traumatic stress disorder." He concluded that her disorder was "directly related to and caused by the incident to her person when she was reportedly called a jungle bunny by Mr. Metzger." Although Dr. Fox determined that plaintiff still needed ongoing psychotherapy to deal with the emotional stress arising out of

defendant's remark, plaintiff stopped seeing Dr. Fox in March 1993 because she could no longer afford the therapy.

II

The Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, prohibits discrimination "because of race, creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, or nationality." N.J.S.A. 10:5-3. The gravamen of the complaint filed by plaintiff against Metzger is the allegation that the racial comment he directed against her constituted racial harassment, an act of discrimination in violation of the LAD.

In Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993), this Court formulated the basic standard for determining whether acts of harassment in the workplace constitute invidious discrimination in violation of the LAD. When a black plaintiff alleges racial harassment under the LAD, she must demonstrate that the defendant's "conduct (1) would not have occurred but for the employee's [race]; and [the conduct] was (2) severe or pervasive enough to make a(3) reasonable [African American] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Id. at 603-04, 626 A.2d 445 (emphasis omitted).

The Court in Lehmann specifically adopted the "severe or pervasive" test as part of its comprehensive standard. Id. at 606-07, 626 A.2d 445. That test conforms to the standard for establishing workplace racial or gender harassment under federal Title VII law. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49, 60 (1986) (holding that in order to demonstrate hostile work environment, plaintiff must allege that unwelcome conduct was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment" (emphasis added)). In choosing its test, the Court clearly Other courts have also recognized that under the severe-or-pervasive test a single incident of invidious harassment can create a hostile work environment. E.g., Torres v. Pisano, 116 F.3d 625, 631 n. 4 (2d Cir.) ("Of course, even a single episode of harassment, if severe enough, can establish a hostile work environment."), cert. denied, --- U.S. 563, 118 S.Ct. 563, 139 L. Ed.2d 404 (1997); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993) ("Within the totality of circumstances, there is neither a threshold 'magic number' of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim."); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 n. 4 (7th Cir.1991) (indicating a single instance of racial harassment can...