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A Mexican-American can proceed with a racial discrimination suit against his former bosses at the New Jersey Administrative Office of the Courts, a federal appeals court has ruled, overturning a judge’s grant of summary judgment. The 3rd U.S. Circuit Court of Appeals, in Cardenas v. Massey, 00-5225, said that, contrary to findings by U.S. District Judge Garrett Brown Jr., the suit was timely filed and there were factual disputes that should be heard by a jury. Gerard Cardenas claims that he was hired as a manager of the AOC’s office systems unit at a lower salary than others of the same title and responsibilities. He also claims his immediate supervisor, Jon Massey, subjected him to verbal abuse, creating a hostile work environment. After six years on the job without a promotion or pay raise, Cardenas resigned on Aug. 23, 1996, and then sued, alleging that Massey and others violated his civil rights and the New Jersey Law Against Discrimination. According to the suit, Massey referred to Cardenas as “the boy from the barrio” and was believed to have left notes on Cardenas’ bulletin board calling him “mojado,” a slur for immigrants from Mexico. Massey also was charged with giving Cardenas poor performance reviews as a pretext for denying him a promotion or salary increase. Cardenas also named as defendants Massey’s supervisor, James Rebo, now the assistant director of information systems; former AOC directors Robert Lipscher and Judge James Ciancia; and Justice Deborah Poritz of the New Jersey Supreme Court. Rebo and Lipscher, the suit claimed, did nothing to respond to his internal complaints. Brown dismissed all claims except those filed against Massey. The 3rd Circuit upheld Brown’s decision to dismiss the claim against Lipscher, finding that he had so little contact with Cardenas that a reasonable jury could not find him liable. Cardenas’ lawyer, Fredric Gross, says the state settled the case against Massey, though he won’t say for how much. “This case could have been settled a long time ago for a lot less than what the attorneys’ fees will be now,” says Gross, who heads a firm in Mount Ephraim, N.J. “There were a lot of days of depositions, and that gets pricey.” The state argued that Cardenas’ claims should be time-barred because, if the alleged discrimination began when he was hired, he should have filed his notice by 1992 in order to meet the statute of limitations. The panel, citing Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries Inc. v. Ellerth, 534 U.S. 742 (1998), said that even though Cardenas did not file a formal complaint or complain to higher management until later in his tenure, there was no reason to dismiss the claim. It is possible, the panel said, that Cardenas initially worried that he would be labeled a troublemaker if he complained. A jury should determine whether Cardenas’ claims are meritorious, the judges said. “The advent of more sophisticated and subtle forms of discrimination requires that we analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment, in evaluating a hostile work environment claim,” the panel said. “Although Cardenas may not have presented as much evidence as did plaintiffs in other hostile workplace environment cases, we cannot conclude that he has not presented enough evidence to make a genuine issue of material fact. We believe that a jury could determine that this hostile work environment stemmed from several forms of facially neutral mistreatment as well as from Massey’s facially discriminatory comments.” The panel added that the discrimination may have been ongoing and that Cardenas could have waited until after he resigned to file his claim. “[A]ny of the employment actions to which Cardenas points as retaliatory were part of the fabric of incidents from which a fact-finder could conclude made for a hostile work environment, [and] it was Massey’s overt ethnic hostility that formed the thread between the employment actions and the alleged hostile environment,” wrote Judge Dolores Sloviter, who was joined by Judges Richard Nygaard and Jane Roth. “Cardenas does not have to prove at this stage that New Jersey is liable for a hostile work environment. Instead, he need merely show that there is a genuine issue of material fact that it may be held liable for employer liability.” If Cardenas can convince a jury that he was victimized by a hostile work environment created by Massey or Rebo, “it is certainly possible that the same jury would find that the hostile environment was severe enough to have precipitated Cardenas’ resignation, i.e., a constructive discharge,” Sloviter said. “We have found that Cardenas presented sufficient evidence to create a question of fact on the existence of a hostile work environment.” Linda Holt, the AOC’s manager of communication services, says officials had no comment on the appeals court’s ruling.

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