Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J. Super. 366 (App. Div. 2014). Plaintiff, an African-American oil delivery driver, experienced some uncomfortable interaction with his on-road trainer, Harrington. Harrington made remarks to him about the Ku Klux Klan, as well as multiple derogatory statements about African-Americans. When plaintiff did not report for work, the safety director of the defendant employer contacted plaintiff and learned of the problems with Harrington. As a result of that, defendant arranged for plaintiff to get a different trainer. Plaintiff never again saw Harrington and did not again experience any adverse race-related conduct. However, plaintiff felt that his co-workers had ostracized him for complaining about Harrington, and that his fellow employees were shying away from him. For that and other reasons, plaintiff resigned from his job. He then sued his employer under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”), for allowing conduct that he alleged amounted to a hostile work environment that led to a constructive discharge. The Law Division granted summary judgment to the employer. The Appellate Division affirmed. Judge Lihotz wrote the panel’s opinion, which applied the de novo standard of review.
Judge Lihotz noted that the Law Division judge had concluded that plaintiff had made enough of a showing of a hostile work environment to defeat summary judgment, and there was a material fact dispute as to whether Harrington had been plaintiff’s supervisor, so as to subject defendant to vicarious liablility for Harrington’s misconduct. But that did not end the inquiry.
“An employer’s vicarious liability for the conduct of a supervisor occurs if the employer negligently or recklessly failed to have an explicit policy that bans … harassment and that provides an effective procedure for the prompt investigation and remediation for such claims.” Here, defendant produced an employee handbook that expressly and emphatically prohibited harassment, discrimination, and retaliation, and provided a complaint and investigation process. Plaintiff did not follow that procedure even though it was available. Instead, the safety director uncovered the problems when he took the initiative to contact plaintiff about his absence from work. Defendant then moved plaintiff away from Harrington. As Judge Lihotz said, “plaintiff’s own report that after meeting with his supervisors, he did not experience any further discriminatory harassment and suffered no change in his position, duties or compensation, demonstrated the policy’s effectiveness.”
Plaintiff’s complaint that his fellow employees ostracized him did not show a hostile work environment. “Employee discourtesy and rudeness should not be confused with employee harassment. Further, an ‘unhappy’ workplace does not equate to a hostile work environment under the LAD.” The statute “does not create a sort of civility code for the workplace.”
Finally, a constructive discharge claim requires a higher level of proof than what is necessary to show a hostile work environment. Plaintiff had to show “egregious circumstances,” meaning “outrageous, coercive and unconscionable acts” of a type “so intolerable that a reasonable person would be forced to resign rather than continue to endure it.” Plaintiff did not make that showing. Again, Judge Lihotz emphasized, “plaintiff admitted that once he informed his superiors, they took action, assigned him a new trainer and, thereafter, he experienced no problems.” Since “the harm was remedied immediately and effectively,” pursuant to defendant’s stated employment policies, no jury could conclude that a reasonable person would have been compelled to resign due to Harrington’s prior misconduct.