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In a civil rights suit brought by a black man whose white co-worker was convicted of ethnic intimidation for slipping a noose around his neck, a federal judge has ruled that the employer is not automatically off the hook simply because it responded quickly to the black employee’s complaint by firing the white worker. In a 36-page opinion in Jackson v. T&N Van Service, U.S. District Judge for the Eastern District of Pennsylvania Robert F. Kelly ruled that Dwayne Jackson can go forward with claims under Section 1981, Title VII and the New Jersey Law Against Discrimination. But in the same opinion, Kelly dismissed claims brought under Sections 1985 and 1986, as well as claims for intentional infliction of emotional distress and negligent supervision. In the suit, Jackson claims that when he arrived at work on Nov. 4, 1998, he was assigned to work with three white workers — Joseph Larose, Walter Felton and Christopher Larosa — to prepare pallets to be moved on the concourse level of the First Union parking lot. While working, Jackson said, he was grabbed from behind by Larose, who forced a noose over his head and then hollered “skin him!” to Felton and Larosa, who smiled and laughed. Jackson was able to remove the noose and immediately reported the incident to both his T&N supervisors and the police. A Philadelphia jury later convicted Larose on charges of ethnic intimidation and simple assault. Common Pleas Judge Anthony J. DeFino sentenced him to 11 1/2 to 23 months in prison — to be served on 12 weekends — plus three months under house arrest and two years probation. T&N fired all three of the white workers, but Felton and Larosa later won reinstatement with back pay. Jackson has been on unpaid leave since the incident and has refused T&N’s invitation to return to work because the company will not promise that he won’t have to work with Felton and Larosa. He claims that the company’s failure to protect him from a racial attack makes his return to work too physically dangerous. On the basis of Larose’s conviction, Jackson’s lawyers took the rare step of asking Kelly to grant summary judgment for the plaintiff on all of the claims. But T&N asked Judge Kelly to rule that, as a matter of law, none of the white workers involved in the incident was Jackson’s supervisor. The suit, they said, must be viewed under the “co-worker harassment” test, which requires proof that the company knew or should have known of the harassment and failed to take prompt remedial action. In a previous opinion, Kelly ruled that Jackson was not entitled to summary judgment but said the defendants should be allowed to move for judgment on the pleadings. In their summary judgment motion, the defense said that the only alleged act of racial discrimination experienced by Jackson during his employment with T&N that has any relevance to the case was the Nov. 4, 1998, noose incident. And they said there was no evidence that any of T&N’s higher-ups had prior knowledge that Joe Larose engaged in racially discriminatory conduct or aided the perpetrators of the mock lynching. Jackson’s lawyers responded by saying they had evidence of racially discriminatory comments made by the company’s owners and a supervisor that show their personal racial animus. One supervisor, they said, saw the noose hanging up on the day of the attack prior to Larose using it and was in a position to stop the attack but did not. Judge Kelly found that Jackson had evidence of racially discriminatory comments made by owners Dave Nelson and Don Taddei that may have encouraged racial animus within the company. He also found that Harry Murphy’s inaction as a supervisor who saw the hangman’s noose prior to Larose placing it around the plaintiff’s neck could be viewed as indirectly aiding harassment. Nonetheless, Kelly found that Jackson fell short of meeting the test for “aiding and abetting” liability under NJLAD since the courts employ a heightened pleading standard and have held that “employees are not liable as aider and abettor merely because they had some role, or knowledge or involvement.”/l/m By contrast, Kelly found Jackson might have a valid claim under Section 1981. T&N contends that its actions included investigating the incident; suspending Larose, Felton and Larosa with intent to discharge them; and aggressively defending the firings. Jackson’s lawyers insisted that T&N owners not only knew that racial harassment was going on in their workforce long before the incident but chose to do nothing about it and in fact encouraged and participated in it. The plaintiff’s brief cited specific examples in which Nelson and Taddei used racially discriminatory comments. Kelly sided with Jackson, saying a jury must decide whether Nelson and Taddei “intentionally caused an infringement of rights protected by Section 1981 by participating in alleged discriminatory conduct which encouraged the creation of a hostile work environment.” T&N argued that the Title VII claim should be tossed out based on its prompt investigation of the incident and the decision to terminate Joe Larose, Walt Felton and Chris Larosa. Jackson, they noted, was allowed to stay away from the work environment through an approved, open-ended leave of absence with a continuing invitation to return to work. But Kelly found that Jackson’s claim was not so easily dismissed. “The difficulty with T&N’s line of argument is that it assumes that an employer is under no duty to address an allegedly hostile work environment until the harassed employee makes a complaint,” he wrote. The 3rd U.S. Circuit Court of Appeals, he said, has made clear, however, that “the employer must take prompt remedial action when the hostile environment is discovered in order to avoid liability.” Jackson has evidence of “ongoing racial discrimination in the workplace in the months immediately preceding the … noose incident,” Kelly noted. In cases where evidence suggests that a company’s supervisors and management had knowledge of an open and obvious hostile work environment prior to the time a plaintiff made complaints yet took no action to stop it, Kelly said, “courts have denied motions for summary judgment, concluding that a genuine dispute existed as to whether the employer took prompt and effective remedial measures once it became aware of the allegedly hostile work environment.” Kelly found that Jackson also “called into doubt the effectiveness of any anti-harassment and nondiscrimination policy that was employed at T&N,” by pointing to testimony of two employees who said they were never notified of any anti-discrimination policy.

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