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Kwiatkowski v. Lynch

August 13, 2008


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1031-04.

Per curiam.


Argued April 30, 2008

Before Judges Cuff, Lisa and Lihotz.

Plaintiff appeals from summary judgment dismissing his claims for wrongful termination of employment and harassment based on his sexual orientation, and for intentional infliction of emotional distress. The court dismissed the wrongful termination claim on the ground that plaintiff's direct supervisor, defendant Theresa Wonder, who demonstrated some evidence of bias, was not the person who made the termination decision. On appeal, plaintiff argues that his employer, defendant Merrill Lynch, cannot escape liability because it was Wonder who provided to the actual decisionmaker all of the information about him upon which the termination was based. The court dismissed plaintiff's hostile work environment claim on the ground that the single offensive comment made by plaintiff's direct supervisor, although clearly derogatory, under all of the circumstances was insufficient to withstand summary judgment. On appeal, plaintiff disputes that determination and argues that he presented sufficient evidence to warrant a determination by a jury. The court also dismissed plaintiff's claim for intentional infliction of emotional distress, essentially on the same ground as the hostile work environment dismissal. Plaintiff's appeal argument is also similar, namely that a jury issue exists. Finally, based upon dismissal of plaintiff's claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, with respect to plaintiff's employer, the court also dismissed plaintiff's claims against Wonder for aiding and abetting discrimination and harassment. Plaintiff argues on appeal that the LAD claims against the employer should be reinstated and, accordingly, so should the aiding and abetting claims against Wonder. We agree with plaintiff and reverse.


Plaintiff was hired by Merrill Lynch on January 15, 2001 as an at-will employee. He worked in the Hopewell office as a client services representative. Plaintiff's primary duty was to answer incoming telephone inquiries from clients. Plaintiff was twenty-four years old when he was hired and a graduate of New York University. Plaintiff is homosexual. He believed that many people at Merrill Lynch knew he was gay, although he told very few people.

From the time of his hire until September 3, 2003, plaintiff was supervised by individuals other than Wonder. He received excellent performance evaluations, which noted that he was courteous, professional, extremely helpful to clients, had a positive attitude, was hardworking and dedicated, and was an invaluable resource to his peers and managers, taking the initiative to be a leader. The reports did contain some negative aspects, including that plaintiff should concentrate on reducing his call duration and on practicing better call management, and that he had excessive absences and tardiness.

On August 16, 2002, plaintiff was notified regarding his six absences during the prior twelve-month period and that a continued pattern might result in progressive disciplinary action. On November 15, 2002, he was notified of seven absences during the prior twelve-month period, and that additional absences might result in disciplinary action. On January 10, 2003, he was issued a formal written warning for his eight absences in the prior twelve-month period. Overall, however, the record establishes that plaintiff was considered by supervisory personnel to be an exemplary employee. He received various awards for his outstanding work. He was routinely called upon by management to help resolve difficult client inquiries and was a recognized specialist in the financial software program known as Quicken. Because plaintiff was asked to deal with more complex client inquiries and Quicken issues, he was kept off the phones for extended periods.

Wonder became plaintiff's direct supervisor on September 3, 2003. Her job responsibilities included monitoring her employees' phone calls and advising them on improving their performance. Plaintiff never told Wonder he was gay and was unaware whether anyone else told her so. Plaintiff himself told only two of his co-workers that he was gay, but discussed "the topic" with R. Michael Schwarz, another homosexual employed at the call center, and assumed that his homosexuality was common knowledge. Plaintiff joined Merrill Lynch's Rainbow Professional Network for gay and lesbian employees, although he did not participate in any of its activities.

In October 2003, plaintiff told Wonder he was unhappy with his job, did not like being micromanaged, and felt like he was always getting into trouble for something. He said his complaints were directed at the job, not at her, and Wonder said she would assist plaintiff with seeking a transfer.

On November 5, 2003, plaintiff was issued a final warning regarding his attendance. He was required to provide a doctor's note for any future absence and informed that his failure to correct the problem would result in his immediate termination.

Plaintiff alleged that from November 5 to December 21, 2003, Wonder began to create a record against him in an attempt to portray him as a poor performer. He alleged that Wonder began to take away his duties and specialties and that other employees perceived she was treating him unfairly. He claimed that she frequently screamed at him and criticized his work, and her criticism was delivered in an extremely accusatory manner. He claimed Wonder repeatedly asked him why he was working on a specific project, and she would berate him for spending too much time on an account that required research. Plaintiff began having panic attacks, for which he sought treatment. This was corroborated by his treating psychiatrist.

On December 21, 2003, Wonder reported to Human Resources (HR) that plaintiff's attitude was "horrible" and that his performance had been "very poor," specifically, that he failed to meet his adherence objectives for December. The next day, HR responded that Wonder should discuss plaintiff's problems with him, and if no improvement was shown, she should issue a verbal warning. On December 23, 2003, Wonder asked HR to issue a verbal warning immediately, claiming she had previously spoken to plaintiff about the issue.

During that month, Wonder gave holiday gifts to her staff. She gave each individual homemade cookies and candy, along with specialty calendars for the men and stationery for the women. She claims she attempted to pick calendars that suited each employee's interests, such as sports, crossword puzzle, and the like. For plaintiff, she chose what she thought was a "Joke-ADay" calendar, because he liked jokes. As it turned out, however, the calendar contained many crude and obscene references to such things as penises, pubic hair, condoms, testicles, assholes, nipples, bowel movements, breasts, farts, and the like. Plaintiff initially displayed the calendar on his desk, but soon realized that the subject matter was offensive to him and his co-workers, and he put it in his drawer.

The event that purportedly formed the basis for plaintiff's termination occurred on Monday, December 29, 2003. The Merrill Lynch call center issued a "Code Red," which meant there was a high volume of client calls and all representatives were required to sit at their desks to take these calls in lieu of attending to other tasks. There were about fifty such Code Reds per year, often on Mondays, when call volume was typically high.

During the Code Red, plaintiff was in the process of helping a particular client, Ms. Bliss, with a problem. The call had been routed to him because he had done research for Bliss the previous week. Following protocol, plaintiff asked Wonder for permission to deviate from the Code Red to pull Bliss's client statements. Wonder told plaintiff that either the Correspondence Utility Team could pull these statements or plaintiff could get them the following day. Plaintiff chose the latter course. Wonder then put in a deviation request with the Workforce Management Team for plaintiff to be allowed off the phones for the following morning between 9:30 and 10 a.m. The request was granted and Wonder so notified plaintiff. Wonder authorized plaintiff to call Bliss back solely for the purpose of telling her that he would be getting back to her the following morning to further discuss her problem.

According to plaintiff, before he could call the client back, it was necessary to find out from the Correspondence Utility Team whether any information had already been found regarding her account. He believed he had Wonder's permission to do that. On his way to check that information, plaintiff faxed a document regarding another client's request that he had put off doing earlier and which he regarded as urgent. He then called Bliss to advise her of the situation and what he found so far. All of this took about twenty-five minutes. Meanwhile, numerous incoming calls were backing up, and Wonder sent him this email:

I asked you very nicely to take care of this tomorrow or give it to the CU [Correspondence Utility] and you just spend [sic] 25 minutes on this issue when there are 28 calls in queue. We made an agreement for you to do it tomorrow morning and I sent in a deviation for you. Can you please explain?

Plaintiff responded with this email:

I first signed off to fax a DDS form to one client which I had delayed since this morning. The second issue where I called the client we spoke about was because client was reportedly upset and anxious regarding this issue. I just wanted to let her know of what was found and when I would call her.

I apologize for again not being able to follow through correctly.

Plaintiff contended his apology was not because he believed he did anything wrong, but out of frustration.

Later that afternoon, Wonder went to the office of her supervisor, Sandra Givas, the Vice President and Manager of Financial Relationship Services, and reported the incident. Wonder felt hurt that an employee was insubordinate to her after she had tried to help him. Givas told Wonder that plaintiff should be terminated for his insubordination, and Wonder agreed.

Givas did not know whether plaintiff had ever previously breached a Code Red and that he had never before been insubordinate to either Givas or Wonder. She acknowledged that she did not have much interaction with plaintiff, except for an occasional passing in the hall, that she had limited firsthand knowledge of his job performance, and that any knowledge she had was essentially based on what Wonder, or plaintiff's previous supervisors, had told her. Her decision to terminate plaintiff was based on Wonder's report of the Code Red incident and Givas's conclusion that plaintiff had been grossly insubordinate. Although Givas also noted that plaintiff had an ongoing attendance problem, she maintained that her decision to terminate him was based solely on his insubordination. Plaintiff does not dispute that Givas did not know he was gay.

Wonder agreed with and supported Givas's decision, and they never discussed any punishment other than termination, even though plaintiff had never before been insubordinate and even though Merrill Lynch used progressive discipline in certain situations. Givas then called HR for assistance. HR said they would speak to legal counsel first.

Two days later, on December 31, 2003, in response to Givas's request for a copy of plaintiff's latest performance review, Wonder furnished plaintiff's November 2003 evaluation. In it, Wonder reported that plaintiff was a core part of the team, was valued for being a subject matter expert, and was willing to take on any new challenge. However, she also reported that he needed to develop his time management skills and to realize that heavy call volume had to be his first priority. Although he was valued for his hard work and creativity, he had many areas that needed improvement, including his adherence scores, his attendance, and his lateness. Wonder believed plaintiff had great potential to succeed.

Also on December 31, 2003, plaintiff claimed he was in the office talking to a fellow employee when Wonder suddenly interrupted his conversation and said, "I can't believe you. I was standing right there! How dare you be so unprofessional!" She then stormed into her office. Neither plaintiff nor his fellow employee had any idea what prompted Wonder's comments. A short time later, plaintiff said that as Wonder passed him in the hallway coming back from the conference room, he heard her call him a "stupid fag" under her breath. Although other people were in the area when the comment was made, plaintiff was not aware that anyone else heard it, and he never told anyone about it. However, one of his fellow employees observed his reaction of utter shock as he came back to his desk. Plaintiff claimed that after work that day, as he went out to his car, his knees buckled, he started to hyperventilate, and he no longer felt safe speaking to anyone at work.

Wonder denied ever making the comment, and also denied knowing whether plaintiff was gay. Her version of the events was different. She claimed that while plaintiff was talking to a fellow employee, she heard plaintiff refer to her as a "bitch." She told him this was inappropriate language, and he became irate and threw up his hands. She then asked to talk with him in the conference room, and at this meeting, she told plaintiff she was offended by his remark and that the department had zero tolerance for negativity. Plaintiff then returned to his desk.

On January 2, 2004, the first work day after the incident, plaintiff called HR and spoke to Deb Droz, in Merrill Lynch's New York office. He told her he was being harassed by his supervisor, who did not like him, and that he was having panic attacks. He mentioned the calendar and that his supervisor was angry with him for being late to a meeting. He never said he was homosexual and never mentioned the "stupid fag" comment, even though Merrill Lynch's complaint procedure provided that anyone who was the victim of discrimination or harassment by their immediate supervisor should contact HR. The conversation ended with plaintiff telling Droz he wanted to try to handle the problem on his own and work it out with his supervisor.

On January 6, 2004, Givas met with Wonder and plaintiff in her office and terminated plaintiff's employment. Givas maintained that the decision was based on her, not Wonder's, recommendation, and that she made her own recommendation after considering Wonder's input and evaluating the rest of what she herself knew about the situation. It was agreed with HR that the sole basis for termination was insubordination, even though Wonder made her aware of "other variables," such as plaintiff's attendance issues and schedule adherence. Givas was unaware of plaintiff's sexual orientation before terminating him, and she had not looked at his personnel file in the period between the instance of insubordination and the termination.

According to plaintiff, Givas told him at the termination meeting, "this has nothing to do with anything else," and it did not matter what his explanation was for his behavior on December 29, because the decision had already been made. Wonder claimed that plaintiff did not attempt to offer any explanation, did not dispute that he had been insubordinate, and did not allege any discrimination.

Plaintiff contended that, following his termination, he suffered from panic attacks, sleeplessness, nightmares, depression, upset stomach, loss of appetite, shortness of breath, chest pain, weakness, and emotional instability. His treating psychiatrist corroborated these complaints and added that plaintiff suffered flashbacks of the confrontations with his supervisor. The psychiatrist diagnosed plaintiff as suffering from post-traumatic stress disorder, and noted that a threat to plaintiff's integrity occurred when Wonder called him a "fag," when she yelled at him and embarrassed him in front of other people, and when ...

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