A reverse-discrimination suit brought by a white former employee of Petco who claimed the company posted Spanish-only signage and failed to prevent repeated racial taunts by his predominantly Hispanic colleagues can proceed thanks to a New Jersey federal judge’s ruling.
U.S. District Judge Freda Wolfson on Monday denied dismissal of claims lodged under the New Jersey Law Against Discrimination (LAD) by a man claiming he was subjected to a hostile work environment as the only Caucasian working on the floor of Petco’s Monroe, N.J., distribution center.
The judge said plaintiff Frank McQuillan satisfied the heightened pleading standards required in reverse-discrimination cases where the litigant is a member of a majority class.
McQuillan “has alleged a causal connection of his status as a white person and the ongoing harassment to which [he] contends he was subjected at Petco,” said Wolfson, sitting in Trenton.
McQuillan was hired by Petco in 2012 as an “order picker”—a warehouse worker who prepares orders to be shipped.
He claims signs regularly were posted in Spanish with no English translation, and he was constantly referred to by Hispanic co-workers as a “gringo,” a derogatory Spanish term typically directed at white Americans, and “maricon,” which is derogatory to gays.
The suit alleges that not only did management fail to cease those behaviors, but a Hispanic manager once verbally assessed McQuillan’s work performance as “not bad for a white boy.”
Also, McQuillan claims he was not provided a scanning headset to assist with the work, whereas other workers got one. McQuillan claims management told him no one was available to train him on the equipment, though Hispanic employees hired after him all were given the headset, allowing them to work faster than him.
In January 2013, McQuillan sustained a shoulder injury on the job later diagnosed as a torn rotator cuff by a doctor from Petco’s health carrier, U.S. HealthWorks. The doctor advised management that McQuillan could return to work on light duty, but was told no such roles were available.
McQuillan sought workers’ compensation benefits. Petco management in February 2013 told McQuillan’s attorney to “just tell him he’s fired,” the suit alleges.
The complaint asserted five claims under the LAD, which Petco moved to dismiss. But on Monday, Wolfson denied the motion as to three of those claims, and dismissed the other two without prejudice, allowing McQuillan an opportunity to amend the complaint.
The judge first dispensed with Petco’s argument that the nonspecific term “Caucasian” doesn’t fit within a particular race, color, national origin or ancestry. McQuillan “makes it plain that these Hispanic supervisors and co-workers were treating him differently because he was white,” Wolfson said, rejecting Petco’s “hypertechnical approach” to statutory definitions.
Wolfson noted the heightened pleading standard attached to nonminority litigants, who must show that the defendant is the “unusual employer who discriminates against the majority”—a standard McQuillan met, she said.
He “paints a picture that—due to his color—he suffered harassment and discrimination in a predominantly nonwhite work environment, which ultimately affected his job performance,” Wolfson said.
McQuillan’s complaints, when considered together, make out a claim of hostile work environment, she added, noting his allegations that the racial taunts occurred daily and the withholding of work equipment affected his performance.
Wolfson also upheld claims that Petco failed to accommodate McQuillan’s shoulder injury. Petco allegedly “did not make any effort, let alone a good-faith effort, to discuss with plaintiff whether any reasonable accommodations were appropriate,” she said.
The judge said Petco can’t deny a request for a reasonable accommodation without discussion and later assert that no accommodations were available, which “would effectively excuse defendant from engaging in the interactive process.”
Wolfson did dismiss two counts of disability discrimination—because McQuillan failed to allege that Petco replaced him, or attempted to replace him, after his firing—but gave him two weeks to remedy the deficiency.
McQuillan’s attorney, Kevin Costello of Costello & Mains in Mount Laurel, said the complaint was immediately amended and refiled.
Costello said anti-discrimination laws were passed with disenfranchised groups in mind, but there shouldn’t be a heightened pleading standard for non-minority litigants.
“I don’t believe in the concept of reverse discrimination,” Costello said.
“Either one inappropriately discriminates, or one does not,” he said, adding that the practice is “equally objectionable regardless of who commits it or against whom it’s committed.”
Petco’s counsel, Eboneé Hamilton Lewis of Littler Mendelson in Newark, didn’t return a call Tuesday.
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