On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County, L-0097-98.
Before Judges Kestin, Ciancia and Alley.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff appeals from the trial court's order granting defendants' motion for summary judgment and dismissing the complaint, which alleged causes of action and consequential damages for wrongful discharge by reason of employment discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We affirm.
The gravamen of plaintiff's complaint was that she was discharged for speaking Spanish in the workplace and that the action taken on that basis was in contravention of protections afforded her under the LAD. She specifically posits the "national origin" feature of N.J.S.A. 10:5-12 as the basis of her claim, but the pleading also implicates the protection against discrimination on account of "ancestry". Ibid.
Defendant Cacace is a urologist, and defendant DeSantis is his office manager. Plaintiff, born in New Jersey of Puerto Rican ancestry, was hired in late June 1997 as a secretary/medical assistant. She was discharged in early August of the same year. One qualification for the job was fluency in Spanish because most of Cacace's patients were Spanish-speaking. Plaintiff is bilingual in Spanish and English. Another bilingual medical assistant, Bertha Aranzazu, was also employed in the office. Cacace speaks English and Spanish as well, as does his wife who also worked in the office and is of Hispanic origin. DeSantis was the only employee who was not proficient in both languages; she spoke and understood English only.
On summary judgment, the facts are to be viewed in the light most favorable to the respondent on the motion, plaintiff here. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying this standard, we recount the following background.
Plaintiff's duties included translating for DeSantis in dealing with Hispanic patients and assisting Cacace in setting up the treatment rooms. On a job evaluation form prepared by DeSantis on July 21, 1997, for the school that had referred plaintiff, plaintiff was rated "good" in thirty-two areas and "fair" in three areas; all other areas on the form were marked "N/A". Additionally, DeSantis wrote that plaintiff was a "fast learner".
In her certification in opposition to the motion for summary judgment, plaintiff characterized DeSantis's treatment of her as follows:
During my employment at least once a week I was told on many occasions by Defendant Marge DeSantis not to speak Spanish on the job and on occasion not even speak Spanish to patients. One occasion, Defendant Marge DeSantis told me and another employee "I am going to let one of you go because there is too much chitchat in Spanish I don't understand." It is a common custom among people of Spanish national origin to speak Spanish to each other. Bilinguals even combine English with Spanish. It just happens. I have always habitually done this and to this day I still do it and no employer I have ever worked for to this day has ever complained except the above Defendant.
Plaintiff further certified that, on or about August 5, 1997, DeSantis fired plaintiff, telling her, "I'm sorry that I have to let you go like this because you are a nice girl and a quick learner but I cannot have you speaking Spanish in my office."
In her deposition, plaintiff recounted specific incidents of DeSantis's pique at her use of Spanish. All three of the staff worked in the same room. DeSantis would hear plaintiff and Aranzazu conversing in Spanish and "she would flip[,]" once saying "I am going to have to get rid of one of you. There's no reason for you, you know, to be talking Spanish."
Plaintiff testified that DeSantis's objections were "constant." Plaintiff elaborated:
She would reprimand us. Sometimes we would do it unconsciously. You're talking to somebody and then they ask you something in Spanish so you answer in Spanish. It is just unconscious, and she would quickly pick up and we would go back to English. It's like a Spanish thing. Any little thing she would bark at you.
On one occasion DeSantis told plaintiff and Aranzazu, "This is America, you got to speak English, you don't have to be talking in Spanish. I am going to ...