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Single Anti-Gay Remark Sufficient for Hostile Workplace Claim, N.J. Court Says
New Jersey Law Journal
August 15, 2008
Calling an employee a "stupid fag" just once is ground for a prima facie case of hostile workplace discrimination based on sexual orientation, a New Jersey appeals court has ruled.
The Appellate Division on Wednesday reinstated a gay man's suit against Merrill Lynch, his former employer, likening it to a 1998 state Supreme Court precedent, Taylor v. Metzger, that allowed a hostile workplace claim to be based on a single racial slur.
"In our view, the patent offensiveness of the 'stupid fag' comment renders it quite similar to the comment made to the plaintiff in Taylor," the judges said in Kwiatkowski v. Merrill Lynch, A-2270-06.
The panel also said the plaintiff's wrongful discharge suit against the company could go forward even though the claim of bias was directed at a lower-level supervisor and not at the manager who eventually fired him.
The judges invoked the federal doctrine of subordinate bias -- also known as the "cat's paw" -- which applies in situations where a supervisor who lacks decision-making power uses a decision maker as a dupe to trigger a negative action against an employee.
Under that theory, a company may be held liable for the discriminatory motives of a supervisor even if the ultimate decision-maker is unaware of them.
Though the federal courts have widely endorsed the doctrine, Wednesday's ruling -- though unreported -- represents the first application of it in New Jersey.
Darren Kwiatkowski, a customer service representative at Merrill Lynch in Hopewell, was fired by a company vice president based on reports made by his immediate supervisor, Theresa Wonder. She had called his attitude "horrible" and his performance "very poor," but it was her report of insubordination that led to his termination. She said he was away from his desk for 25 minutes when his call center issued a "code red" -- indicating high volume of customer calls to be answered -- and ignored her instruction to put aside other tasks.
Kwiatkowski sued under the state Law Against Discrimination, claiming the firing was motivated by Wonder's bias against him because of his sexuality, as shown by her allegedly calling him a "stupid fag" under her breath, and that she made up a poor performance record as a pretext. He also claimed hostile workplace discrimination based on his sexuality.
Somerset County Judge Allison Accurso dismissed the LAD claims on summary judgment. Since the employer had articulated a nondiscriminatory reason for the firing, the burden was on Kwiatkowski to present evidence that the stated reason was a pretext for an invidious motive, and Accurso found no clear evidence from which the court could infer that his homosexuality was well known within the company. He conceded that Sandra Givas, the manager who fired him, did not know he was gay.
Though Kwiatkowski raised the subordinate-bias doctrine, Accurso found that there was nothing in the record to suggest that Givas did not make an independent evaluation of the matter, countering the suggestion that she was a rubber stamp. Further, Kwiatkowski never alleged that any of the information that Wonder supplied to Givas was incorrect.
Accurso also found the "stupid fag" remark insufficient by itself to establish a hostile work environment. She said the alleged slur -- made by a lower-level supervisor out of earshot of other employees -- was distinguishable from that in Taylor, where the plaintiff's highest-ranking supervisor referred to her as a "jungle bunny" in the presence of another officer.
On appeal, Judges Mary Cuff, Joseph Lisa and Marie Lihotz disagreed on both counts.
As for the "cat's paw" doctrine, they reviewed federal cases from around the country, including the 3rd Circuit, and concluded that New Jersey courts would likely give it liberal interpretation. That would mean that a plaintiff claiming a pretextual reason for his termination need only show that another employee exhibiting discriminatory animus influenced or participated in the decision.
The appeals panel said Accurso failed to recognize the extent of Wonder's influence on the firing decision. "In our view, the record showed that Givas had no actual knowledge of plaintiff at all -- either his prior work history or his conduct on the day in question," they wrote. "All of that information was supplied by Wonder. Moreover, because Wonder agreed with the decision to terminate, Wonder's influence on the whole process here may have been quite substantial."
What's more, Wonder's alleged bias against homosexuals may have affected her decision to report Kwiatkowski in the first place. "Merrill Lynch cannot avoid liability for that discrimination by assigning the ultimate decision to terminate plaintiff to someone who had no knowledge of the discrimination, where that ultimate decisionmaker failed to undertake her own independent investigation," the judges said.
On the hostile workplace claim, the appeals court said Taylor's holding -- that a single comment may be severe enough to create a hostile workplace -- applies regardless of who made the comment. "The fact that it was made by plaintiff's immediate supervisor should be enough because, as Taylor itself noted, a supervisor is someone who should be protecting the employee from such conduct in the workplace," they wrote.
They noted that even before the "stupid fag" remark was allegedly made, Wonder had been verbally critical of Kwiatkowski's performance. "At the very least, plaintiff would have had genuine reason to question Wonder every time she criticized his work and evaluated his performance, and to wonder whether the criticism was valid or instead was generated by her bias against gay men," they observed.
For the same reason, the judges reversed Accurso's dismissal of Kwiatkowski's claim of intentional infliction of emotional distress for a similar reason. She had found the single anti-homosexual epithet was not so extreme or outrageous as to go beyond all bounds of decency in a civilized society. The appeals court said that should be a jury question, particularly in the face of proffered testimony from Kwiatkowski's psychiatrist that the comment had caused him severe stress and panic attacks, for which he had sought treatment.
Kwiatkowski's lawyer, Charles Schalk of Mauro, Savo, Camerino & Grant in Somerville, said of the decision, The Appellate Division ruled that a company cannot use a higher-level supervisor to cover up for the sins of the lower level. ... We're happy that Darren will get another chance."
J. Michael Riordan of Greenberg Traurig in Florham Park, who represents Merrill Lynch and Wonder, did not return a reporter's call.
