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Taylor v. Metzger

February 18, 1998

CARRIE TAYLOR, PLAINTIFF-APPELLANT,
v.
HENRY W. METZGER, BURLINGTON COUNTY SHERIFF, DEFENDANT-RESPONDENT.



Argued September 9, 1997

On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: The opinion of the Court was delivered by Handler, J.

The central issue in this appeal is whether a single derogatory racial comment directed against a subordinate employee by a supervisor can create a hostile work environment in violation of the Law Against Discrimination. A closely-related issue is whether, the utterance of this comment also constitutes the tort of the intentional infliction of emotional distress.

The employee in this case, a county sheriff's officer, claims that her employer, the county sheriff, uttered a racial epithet against her in the presence of another supervisor, the undersheriff. The victim filed a complaint against the sheriff alleging primarily that the racial insult constituted a violation of the Law Against Discrimination.

The trial court entered a summary judgment for defendant on that claim. The court also dismissed other counts of the complaint, namely, intentional infliction of emotional distress, prima facie tort, and violation of federal civil rights statutes. *fn1 The Appellate Division affirmed that judgment in an unreported decision. This Court granted plaintiff's petition for certification. 147 N.J. 578 (1997).

I.

Because this case was determined on the basis of summary judgment, the evidence must be evaluated under this Court's summary judgment standard. That standard precludes summary judgment if the competent evidence, when viewed in the light most favorable to the non-movant, is sufficient to permit a rational factfinder to resolve the disputed factual issues in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The evidence assessed under that standard supports the following facts.

In 1972, plaintiff Carrie Taylor began working as a sheriff's officer in the office of the Burlington County Sheriff. On January 31, 1992, Taylor, who is African American, was at the Burlington County Police Academy for firearms training and weapons qualification. While there, she encountered defendant Henry Metzger and Undersheriff Gerald Isham. Taylor said hello, and, in response, Metzger turned to Isham and stated: "There's the jungle bunny." Isham laughed. Plaintiff believed the remark to be a demeaning and derogatory racial slur, but she did not reply. She became a "nervous wreck," immediately began crying, and went to the bathroom. Taylor subsequently returned to the Police Academy classroom, in which she was the only African American and the only woman. Holding back tears, she related her experience to co-workers. The officers laughed; one responded: "I'm a black Irishman." This comment further offended plaintiff, who felt their reactions were insensitive.

Taylor thereafter consulted with her union attorney and a member of the union grievance committee. On February 5, 1992, accompanied by two union grievance committee members, Taylor met with Metzger and Undersheriff Davis. Plaintiff spoke to defendant about her grievance and demanded a written apology. Defendant stating that he had used the phrase "jungle bunny" with a different connotation in the Marine Corps, claimed that he was not aware that the remark had a derogatory connotation. Plaintiff told defendant that the remark was very insulting and degrading. However, defendant badgered plaintiff for interpreting the remark as a racial slur and brought her to tears. At that point, Undersheriff Davis said that, without a doubt, the statement was offensive. Defendant then stated that he needed to think before deciding whether to apologize in writing and explained that plaintiff could use such a letter against him.

The following day, defendant summoned Taylor to meet with him. Metzger offered a written apology in which he admitted that he called Taylor a "jungle bunny," but also claimed that Taylor had worn camouflage fatigues at the time of the comment. Taylor refused to accept the apology because the description of her clothing was not factually accurate; in fact, she had worn blue jeans and a navy sweatshirt. Defendant hassled her for rejecting the letter for that reason.

On February 10, 1992, Taylor again met with defendant. Metzger again attempted to present a letter of apology to Taylor. Stating that she would like an attorney present before accepting anything from Metzger, she refused the letter.

Taylor disclosed the circumstances of the event to the media and, as a result, the incident was publicized in several newspapers, including the Philadelphia Inquirer, Courier Post, and Burlington County Times. Thereafter, plaintiff received harassing telephone calls and one piece of hate mail. She filed a report with the Willingboro Police Department regarding the harassment and changed her telephone number to an unlisted one.

Following the incident, plaintiff did not lose any income and her basic job duties remained unchanged. However, she lost her position as floor supervisor. Despite the fact that she was told that only sergeants were eligible for that position, she believed the incident caused her to lose the position. Plaintiff felt she suffered a loss of dignity and self-respect. Other sheriff's officers acted coolly toward her and were afraid to talk to her. She was labeled a troublemaker and believed that her co-workers were told to stay away from her. One, who had attended the February 5 meeting, was subsequently told to "bow out" of the matter; he feared continued involvement with plaintiff's grievance.

Plaintiff claims that the incident caused her emotional distress for which she consulted a psychiatrist, Dr. Ira L. Fox, on a periodic basis between May 1992 and March 1993. She was scared and remained "a nervous wreck." She was afraid to leave work by herself and lived in constant fear of reprisal; she bought a bullet-proof vest. Plaintiff suffered from severe middle and nighttime insomnia; experiencing nightmares and flashbacks of the incident, she would wake up hourly and then have trouble falling back asleep. She also had mood changes and developed a psychiatric itch. Taylor told Dr. Fox that she had been losing her hair since the incident. Dr. Fox treated her with an anxiolytic, Ativan. He diagnosed her with "adjustment disorder with mixed emotional features" and later revised that diagnosis to "post- traumatic stress disorder." He concluded that her disorder was "directly related to and caused by the incident to her person when she was reportedly called a jungle bunny by Mr. Metzger." Although Dr. Fox determined that plaintiff still needed ongoing psychotherapy to deal with the emotional stress arising out of defendant's remark, plaintiff stopped seeing Dr. Fox in March 1993 because she could no longer afford the therapy.

II.

The Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, prohibits discrimination "because of race, creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, or nationality." N.J.S.A. 10:5-3. The gravamen of the complaint filed by plaintiff against Metzger is the allegation that the racial comment he directed against her constituted racial harassment, an act of discrimination in violation of the LAD.

In Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993), this Court formulated the basic standard for determining whether acts of harassment in the workplace constitute invidious discrimination in violation of the LAD. When a black plaintiff alleges racial harassment under the LAD, she must demonstrate that the defendant's "conduct (1) would not have occurred but for the employee's ; and [the conduct] was (2) severe or pervasive enough to make a (3) reasonable [African American] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Id. at 603-04 (emphasis omitted).

The Court in Lehmann specifically adopted the "severe or pervasive" test as part of its comprehensive standard. Id. at 606-07. That test conforms to the standard for establishing workplace racial or gender harassment under federal Title VII law. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49, 60 (1986) (holding that in order to demonstrate hostile work environment, plaintiff must allege that unwelcome conduct was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment" (emphasis added)). In choosing its test, the Court clearly rejected an alternative regular-and-pervasive test that requires repetitive or recurrent acts to establish workplace harassment; that test would bar harassment-discrimination actions that were "based on a single, extremely severe incident." Lehmann, supra, 132 N.J. at 606. Consequently, under the chosen standard -- severe or pervasive conduct - - one incident of harassing conduct can create a hostile work environment. Id. at 606-07.

Other courts have also recognized that under the severe-or- pervasive test a single incident of invidious harassment can create a hostile work environment. E.g., Torres v. Pisano, 116 F.3d 625, 631 n.4 (2d Cir.) ("Of course, even a single episode of harassment, if severe enough, can establish a hostile work environment."), cert. denied, __ U.S. __, 118 S. Ct. 563, 139 L. Ed. 2d 404 (1997); Rodgers v. Western- Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) ("Within the totality of circumstances, there is neither a threshold `magic number' of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim."); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 n.4 (7th Cir. 1991) (indicating a single instance of racial harassment can establish a hostile work environment); Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 (11th Cir. 1989) ("It is thus incorrect to apply mechanically an absolute numerical standard to the number of acts of harassment which must be committed by the defendant before a jury may reasonably find that a hostile environment exists."); Reid v. O'Leary, No. Civ. A. 96-401, 1996 WL 411494 (D.D.C. July 15, 1996) (holding that use of one epithet created an issue of material fact regarding whether the plaintiff's work environment was hostile); see Del Valle Fontanez v. Aponte, 660 F. Supp. 145, 149 (D.P.R. 1987) (recognizing that a single sexual advance can constitute sexual harassment); Nadeau v. Rainbow Rugs, 675 A.2d 973, 976 (Me. 1996) (observing that a single incident of sexual harassment may be sufficient to reach jury); Radtke v. Everett, 501 N.W.2d 155, 168 (Mich. 1993) (same); see also Rocha Vigil v. City of Las Cruces, 119 F.3d 871, 873 (10th Cir. 1997) (Lucero, J., Dissenting) ("If sufficiently severe, harassment is actionable under Title VII -- regardless of its pervasiveness or frequency."). The Equal Employment Opportunity Commission (EEOC) also recognizes that a single incident, if sufficiently severe, can create a hostile environment. Schott v Runyon, No. 4-G-1381-92, 1996 WL 350896 (E.E.O.C. June 20, 1996) (citing EEOC Policy Guidance on Current Issues of Sexual Harassment, Notice N-915- 050, at 104 (March 19, 1990)). Nevertheless, while it "is certainly possible" that a single incident, if severe enough, can establish a prima facie case of a hostile work environment, "it will be a rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable [person situated as the claimant], make the working environment hostile." Lehmann, supra, 132 N.J. at 606- 07.

Here, the basic issue of law is whether the single remark uttered by defendant was, from the perspective of a reasonable African American, sufficiently severe to have produced a hostile work environment. Because this case was determined by summary judgment, the key question and more pointed inquiry is whether a rational factfinder could reasonably determine on the basis of plaintiff's evidence that the racial insult directed at her by the sheriff in the presence of the undersheriff was, under the surrounding circumstances, sufficiently severe to have created a hostile work environment.

Usually repeated racial slurs must form the basis for finding that a hostile work environment has been created. E.g. Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (finding a prima facie case of national origin harassment because of repeated ethnic slurs uttered toward an Arab-American employee); Boutros v. Canton Regional Transit Auth., 997 F.2d 198, 204 (6th Cir. 1993) (same); Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988) (stating repeated slurs are necessary to establish a racial harassment claim), cert. denied, 490 U.S. 1110, 109 S. Ct 3166, 104 L. Ed. 2d 1028 (1989); Erebia v. Chrysler Plastics Prod. Corp., 772 F.2d 1250, 1256 (6th Cir. 1985) (holding repeated racial slurs created a hostile work environment), cert. denied, 475 U.S. 1021, 106 S. Ct 1197, 89 L. Ed. 2d 311 (1986); Rogers v. Equal Employment Opportunity Comm'n, 454 F.2d 234, 238 (5th Cir. 1971) (same), cert. denied, 406 U.S. 957, 92 S. Ct. 2058, 32 L. Ed. 2d 343 (1972). Generally, "`mere utterance of an . . . epithet which engenders offensive feelings in an employee,' does not sufficiently affect the conditions of employment to implicate Title VII." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295, 302 (1993) (quoting Meritor, supra, 477 U.S. at 67, 106 S. Ct. at 2405, 91 L. Ed. 2d at 60); see also Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (holding two racial slurs insufficiently severe because there was no barrage of opprobrious racial comments), cert. denied, __ U.S. __, 116 S. Ct. 92, 133 L. Ed. 2d 48 (1995).

Some courts have found that a particularly offensive remark, if not repeated, will not be sufficient to establish a hostile work environment. E.g., McCray v. DPC Indus., Inc., 942 F. Supp. 288, 293 (E.D. Tex. 1996) (holding sporadic racial slurs by co-workers insufficiently severe to establish a hostile work environment), aff'd, 58 F.3d 640 (5th Cir. 1995); Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994) (holding a co-worker once calling the plaintiff a "nigger" insufficiently severe to establish a hostile work environment), aff'd, 58 F.3d 640 (11th Cir. 1995); Reese v. Goodyear Tire & Rubber Co., 859 F. Supp. 1381, 1385, 1387 (D. Kan. 1994) (holding a manager insinuating that all black people abused drugs insufficiently severe to establish a hostile work environment); Bennett v. New York City Dep't of Corrections, 705 F. Supp. 979, 983 (S.D.N.Y. 1989) (concluding that corrections officer's remark, "hey black bitch, open the . . . gate," to another officer did not amount "to more than a mere episodic event of racial antipathy" and was insufficient to sustain a claim of a racially hostile work environment).

Nevertheless, a single utterance of an epithet can, under particular circumstances, create a hostile work environment. As expressed by the court in Nadeau, supra, although

many of the cases considering hostile environment harassment claims[] involve a pattern of inappropriate conduct, there is no requirement that harassment occur more than one time in order to be actionable. The standard contemplates conduct that is either severe or pervasive. Although the conduct may be both, only one of the qualities must be proved in order to prevail. The severity of the conduct may vary inversely with its pervasiveness. Whether the conduct is so severe as to cause the environment to become hostile or abusive can be determined only by considering all the circumstances, and this determination is left to the trier of fact.

[675 A.2d at 976.]

The connotation of the epithet itself can materially contribute to the remark's severity. Racial epithets are regarded as especially egregious and capable of engendering a severe impact. See Robert J. Gregory, You Can Call Me a "Bitch" Just Don't Use the "N-word": Some Thoughts on Galloway v. General Motors Service Parts Operations and Rodgers v. Western Southern Life Insurance Co., 46 DePaul L. Rev. 741, 748 (1997) ("Courts have viewed racist epithets as beyond the pale, regardless of the prevalence of these epithets in the workplace."). The meaning of a racial epithet is often a critical, if not determinative, factor in establishing a hostile work environment. E.g., Rodgers, supra, 12 F.3d at 675 (noting that the term "nigger" is an unambiguously racist epithet); Reid, supra, 1996 WL 411494, at *4 (ruling that "it is very possible that the term `Coon-Ass' is racially derogatory or severe enough, in and of itself, to create a hostile work environment"); Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984) ("The use of the word `nigger' automatically separates the person addressed from every non- black person; this is discrimination per se. . . .); see also Rocha Vigil, supra, 119 F.3d at 873 n.3 (Lucero, J., Dissenting) (Harris, supra, "does not mean that severely degrading, racially derogatory insult of the worst kind escapes actionability under Title VII simply because it is used only occasionally.").

In this case, defendant's remark had an unambiguously demeaning racial message that a rational factfinder could conclude was sufficiently severe to contribute materially to the creation of a hostile work environment. The term defendant used, "jungle bunny," is patently a racist slur, and is ugly, stark and raw in its opprobrious connotation. See Washington v. Court of Common Pleas of Phila. County, 845 F. Supp. 1107, 1110 (E.D. Pa. 1994) (recognizing that "jungle bunny" is a racist remark), rev'd on other grounds, 47 F.3d 1163 (3d Cir. 1995). In common parlance, "jungle bunny" is a racial slur directed at blacks. The Dictionary of Contemporary Slang 285 (1st Ed. 1990); Paul Beale, A Concise Dictionary of Slang and Unconventional English 244 (1st American Ed. 1989). It is a slur that, in and of itself, is capable of contaminating the workplace. Bolden v. ABF Fabricators, Inc., 864 F. Supp. 1132, 1133-34 (N.D. Ala. 1994) (referring to black people as "jungle bunnies," among other slurs, created a racist working environment); cf. Resetar v. State Bd. of Educ., 399 A.2d 225, 238 (Md.) (upholding dismissal of schoolteacher for referring to black students within earshot as "jungle bunnies" because the epithet is sufficiently vicious), cert. denied, 444 U.S. 838, 100 S. Ct. 74, 62 L. Ed. 2d 49 (1979). Racial slurs are a form of vilification that harms the people at whom they are directed. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2338 (1989) ("However irrational racist speech may be, it hits right at the emotional place where we feel the most pain."); Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 452 (1990) ("The experience of being called `nigger,' `spic,' `Jap,' or `kike' is like receiving a slap in the face. The injury is instantaneous.").

Further, the severity of the remark in this case was exacerbated by the fact that it was uttered by a supervisor or superior officer. Defendant was not an ordinary co-worker of plaintiff; he was the Sheriff of Burlington County, the chief executive of the office in which plaintiff worked. That fact greatly magnifies the gravity of the comment.

A supervisor has a unique role in shaping the work environment. Part of a supervisor's responsibilities is the duty to prevent, avoid, and rectify invidious harassment in the workplace. See Lehmann, supra, 132 N.J. at 622-23 (holding an employer was vicariously liable for sexual harassment if it had knowledge of the harassment but failed to stop it promptly and effectively). An employer has a clear duty not only to take strong and aggressive measures to prevent invidious harassment, but also to correct and remediate promptly such conduct when it occurs. Payton v. New Jersey Turnpike Auth., 148 N.J. 524, 537 (1997) (holding that an employer's remedial response to complaints of harassment is relevant to an employee's discrimination claim); Amirmokri, supra, 60 F.3d at 1131 (imposing liability for employer's failure to take prompt action calculated to end ethnic harassment after becoming aware of it); Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991) (requiring an employer to end sexual harassment); Davis, supra, 858 F.2d at 349 (shielding an employer from liability because it "took quick and appropriate measures to remedy the situation"); Peter M. Panken et al., Sexual Harassment in the Workplace: Employer Liability for the Sins of the Wicked, SB36 A.L.I. - A.B.A. 203, 228 (1997) (recognizing employers lessen liability by having an effective and responsive complaint procedure).

Here, defendant did more than merely allow racial harassment to occur at the workplace, he perpetrated it. That circumstance, coupled with the stark racist meaning of the remark, immeasurably increased its severity. In Rodgers, supra, the court noted that "a supervisor's use of [a racial slur] impacts the work environment far more severely than use by co-equals." 12 F.3d at 675. In Nadeau, supra, the court concluded that a single incident of sexual harassment by the highest- ranking employee of the company could reasonably be found "sufficiently severe to alter the conditions of employment and to create an abusive or hostile work environment." 675 A.2d at 974; see also King v. Hillen, 21 F.3d 1572, 1580 (Fed. Cir. 1994) (noting the EEOC's Policy Guidelines on Sexual Harassment states that "consideration should be given to the type of conduct (verbal or physical), its frequency, its offensiveness, the hostility of the conduct, whether the harasser is a co-worker or a supervisor, and the number of persons at whom the harassment was directed" (emphasis added)); cf. In re Seaman, 133 N.J. 67, 94 (1993) (stressing that the sexual harassment by a Judge directed to his law clerk was especially egregious because of the Judge's authority and superior position).

The Sheriff of Burlington County is a high-ranking law enforcement officer. That fact is of significance when evaluating the effect of his remark on a subordinate. Any remark from such an individual carries with it the power and authority of the office. Because the sheriff was both plaintiff's superior and her offender, plaintiff could not seek the redress that would otherwise be available to a victim of invidious workplace harassment, namely, resort to her own supervisor. See Radtke, supra, 501 N.W.2d at 168 (stating that "because the perpetrator of the alleged [sexual harassment] was the employer, recourse to the employer was fruitless," and holding that "he alleged conduct, combined with the reality that the employer was the perpetrator, permits single incident to be sufficient to reach the jury"). Indeed, plaintiff's dilemma was acute and insoluble. She had nowhere to turn. When plaintiff did turn to defendant, she did not receive any redress or protection whatsoever, let alone comfort, solace or contrition. Rather, she was rebuffed and further agitated, to the point of tears, for taking offense to a remark that was clearly a slur against her race.

The test of severity adopted by this Court in Lehmann does not in all cases require evidence of an actual change in working conditions in order for there to be a hostile work environment. The Court in Lehmann, supra, stated: "iscrimination itself is the harm that the LAD seeks to eradicate . . . ." 132 N.J. at 610. "It is the harasser's conduct, not the plaintiff's injury, [and 'not the alteration of the conditions of employment,' Muench v. Township of Haddon, 255 N.J. Super. 288, 299 (App. Div. 1992) (citation omitted),] that must be severe or pervasive." Lehmann, supra, 132 N.J. at 610.

Severity and workplace hostility are measured by surrounding circumstances. An offensive remark directed against a black employee must under the circumstances be "severe or pervasive enough to make a . . . reasonable [African American] believe that . . . the conditions of employment are altered and the working environment is hostile or abusive." Id. at 603-04. The comment in context must be viewed from the perspective of a reasonable African American situated as the plaintiff. See Torres, supra, 116 F.3d at 632-33 (using a reasonable Puerto Rican standard for a Puerto Rican plaintiff); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996) (stating that plaintiff must show racial harassment "would detrimentally affect a reasonable person of the same race in that position"); Dickerson v. State of N.J., Dep't of Human Servs., 767 F. Supp. 605, 616 (D.N.J. 1991) (stating that standard is a reasonable person of plaintiff's race).

A rational factfinder may conclude that under the circumstances a reasonable African American could believe that, when the chief executive of her office calls her a "jungle bunny," he thinks she has less worth as a person and is inferior to other employees because of her race. Moreover, a jury could reasonably find that the reasonable African American would believe that such a remark made in the presence of another supervising officer portrays an attitude of prejudice that injects hostility and abuse into the working environment and significantly alters the conditions of her employment. See Rodgers, supra, 12 F.3d at 675 ("Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as `nigger' by a supervisor in the presence of his subordinates." (citation and internal quotations omitted)).

The circumstances -- that the insult was clearly a racist slur, that it was directed against plaintiff, that it was uttered by the chief ranking supervisor of her employ, the Sheriff of Burlington County, and that it was made in the presence of another supervising officer -- were sufficient to establish the severity of the harassment and alter the conditions of plaintiff's work environment.

Undoubtedly, in some, perhaps most, cases, evidence that the hostility or abuse deleteriously alters the conditions of employment is necessary in order to establish the requisite severity of the discrimination. See Lehmann, supra, 132 N.J. at 610. As observed by the Court in Lehmann, supra: "One cannot inquire whether the alleged conduct was `severe or pervasive' without knowing how severe or pervasive it must be." 132 N.J. at 604. However, despite the Dissent's contention, (infra) at __-__ (slip op. at 3-5), evidence of specific, tangible adverse changes in the work environment is not required in order to state a LAD racial harassment claim. " loss of a tangible job benefit is not necessary since the harassment itself affects the terms or conditions of employment." King v. Board of Regents of Univ. of Wis. Sys., 898 F.2d 533, 537 (7th Cir. 1990); see also Nadeau, supra, 675 A.2d at 976 (holding that a single instance of sexual harassment may have altered the plaintiff's working conditions although she was able to retain her job position); Radtke, supra, 501 N.W.2d at 168 (holding that a single instance of sexual harassment may have altered the plaintiff's working conditions although she did not allege that there had been tangible changes to her working environment).

Moreover, there are circumstances that indicate that the conditions of plaintiff's employment were in fact altered by the racist remark. Prior to January 31, 1992, plaintiff had never been the target of racial epithets at work. But, that changed when defendant made his remark.

The offensive remark was made in the presence of another supervising officer. When plaintiff told her co-workers of defendant's remark, they laughed, and one apparently mocked her. Moreover, plaintiff had no realistic opportunity for redress. Defendant indirectly persisted in perpetuating the harassment and its hostile impact. When plaintiff confronted defendant about his comment, he would not acknowledge that he had vilified her. Instead, he badgered her for interpreting the remark as a racial slur. He was reluctant to apologize. His first proffered letter did not constitute a sincere apology; rather, it evaded the patent racial import of the epithet defendant had used by falsely stating that plaintiff had worn fatigues at the time of the comment. Thereafter, her co-employees acted coolly toward her; she was labeled a troublemaker. They were afraid to talk to her and created the impression that they had been told to stay away from her. Consequently, a rational factfinder, crediting such evidence, may conclude that defendant's racial slur altered plaintiff's working conditions.

"This Court has described the goal of the LAD as being `nothing less than the eradication of the cancer of discrimination.'" Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 651-52 (1996) (quoting Fuchilla v. Layman, 109 N.J. 319, 334, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)). We have recognized: "No purpose is served by allowing that harm to go unremedied merely because it was brought about by a single, severe incident of harassment rather than by multiple incidents of harassment." Lehmann, supra, 132 N.J. at 607.

Accordingly, we conclude plaintiff has presented adequate evidence of the severity of defendant's remark to create a genuine issue of material fact sufficient to survive defendant's motion for summary judgment. A rational factfinder, crediting plaintiff's evidence, could conclude that defendant engaged in discriminatory harassment by uttering a racial epithet that was sufficiently severe to have created a hostile work environment. We reverse the order of summary judgment for defendant on the claim of LAD racial discrimination based on workplace harassment.

III.

Citing the insufficiency of plaintiff's allegations and evidence of any severe emotional injury, the trial court dismissed petitioner's claim for intentional infliction of emotional distress. The Appellate Division affirmed the dismissal. In addressing the issue of the adequacy of plaintiff's claim, we are again remitted to the standard governing whether the evidence, when viewed in the light most favorable to the non-moving party, is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. We also note, preliminarily, that the evidence that would be relevant to plaintiff's claim of emotional injury would overlap, if not duplicate, that proffered to establish her LAD claim. To that extent, plaintiff is precluded from obtaining a double recovery.

In Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 365-67 (1988), this Court first recognized a cause of action for intentional infliction of emotional distress. In order to state such a cause of action, "plaintiff must establish intentional and outrageous conduct by the ...


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