May 19, 2010
SAMUEL R. ONANUGA, PLAINTIFF-APPELLANT,
HUNTINGDON LIFE SCIENCES, INC., KAY SALADDIN, AND BARBARA LITZENBERGER, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2697-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2010
Before Judges Rodríguez and Chambers.
Plaintiff Samuel R. Onanuga brought this suit against his former employer, defendant Huntington Life Sciences, Inc. (HLS) and his former supervisors Kay Saladdin and Barbara Litzenberger, contending that they discriminated against him due to his race and national origin and subjected him to a hostile work environment contrary to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.*fn1 By order dated June 12, 2009, the trial court granted summary judgment to defendants. Plaintiff now appeals. We affirm for substantially the reasons given by the trial court.
In reviewing an appeal from a summary judgment order, we apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must look at the competent evidence "in the light most favorable to the non- moving party" and determine whether that evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment is appropriate where, after applying this test, we determine that no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c).
Looking at the record from the perspective most favorable to plaintiff, the relevant facts are as follows. Plaintiff, who is black and Nigerian,*fn2 was a longtime employee of HLS and had achieved the rank of senior scientist in the Analytical Department. He became unhappy with his job and believed that he was being treated unfairly when his supervisor required him to write reports and help obtain copies of certain documentation for Asian co-workers who were not as proficient in English as he was. He contended that this was not part of his job responsibilities and that, as a result of doing this work for others, he had less time to spend on his own projects. He also contended that he became unhappy when a co-worker was promoted who had less seniority than he did and that he applied for another opening at HLS which was given to a person who had less experience than he had, although it appears that plaintiff was making more money than the position offered.
With respect to the hostile work environment claim, plaintiff testified at his deposition that he became "uncomfortable" with the work environment when he was asked to do work for Asian co-workers due to his proficiency in English. He acknowledged, however, that no one in the work place ever made any derogatory comments about his race or national origin.
HLS terminated plaintiff's employment on August 2, 2005, and contended that it did so due to his poor job performance and insubordination to his supervisor, defendant Kay Saladdin.
Plaintiff, however, denied that he had cursed at his supervisor and contended that she yelled at him. He also pointed out that his performance review for earlier years had been positive.
The trial court granted defendants' motion for summary judgment and dismissed plaintiff's LAD claims. In a written decision, the trial court explained its decision in pertinent part as follows:
I. Onanuga's Law Against Discrimination Claim
New Jersey has adopted the McDonnell Douglas burden-shifting standard for LAD claims. Under this framework, the following three-step process is undertaken: "(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant [then] must show a legitimate non-discriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely [a] pretext or discriminatory in its application." Dixon v. Rutgers, 110 N.J. 432, 442 (1988) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792[, 807, 93 S.Ct. 1817, 1826, 36 L.Ed. 2d 668, 680] (1973)).
A. Whether Onanuga Can Meet His Prima Facie Case
In order to establish a prima facie case, defendants note that Onanuga must provide evidence (1) that he is a member of a class protected by the anti-discrimination law; (2) that he was able to perform the job; (3) that he suffered an adverse employment action; and (4) that ["]the employer sought someone to perform the same work after he left.["] See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447,  (2005).
Defendants argue that Onanuga has failed to establish the fourth element of the prima facie case because plaintiff has failed to show that HLS employed any replacement after he was terminated.
In opposition, plaintiff argues that he is entitled to a jury trial on these issues. However, he has failed to submit any evidence that the fourth element of his prima facie case was met. Therefore, the Court finds that there is no genuine issue of material fact as to whether HLS employed any replacement after Onanuga's termination.
B. Whether Defendants Can Show a Legitimate Non-Discriminatory Reason for Plaintiff's Termination
Alternatively, defendants argue that the plaintiff was discharged for non-discriminatory reasons. Defendants maintain that Onanuga was terminated due to his trend of poor work performance . . . his productivity fell behind his peers and his subordinates, and this led to unprofessional behavior . . . . As a result, defendants allege that co-workers were required to begin projects anew or take over projects that Onanuga left incomplete. . . . The Court finds that defendants have provided a legitimate non-discriminatory reason for plaintiff's termination.
C. Whether Onanuga Can Provide Evidence That Defendants' Stated Reason Is Merely Pretext or Discriminatory
During his deposition, Onanuga could not point to any incidents of alleged discriminatory behavior by defendant in relation to plaintiff's race or national origin.
In this case, plaintiff has failed to come forward with any evidence to suggest that defendants' reason for terminating plaintiff was merely pretext or discriminatory. Defendants cite to Onanuga's Employee Production Tracking Record, Performance Review, and Termination Memo, which indicate that he was terminated due to lack of productivity and unprofessional behavior. Therefore, defendant's motion for summary judgment is GRANTED.
II. Onanuga's Claim of Hostile Work Environment
Defendants note that under the NJLAD, a claim of hostile work environment requires the plaintiff to demonstrate that (1) the conduct was unwelcome; (2) it occurred because of plaintiff's inclusion in the protected class; and (3) a reasonable person in the same protected class would consider it sufficiently severe or pervasive to alter the conditions of employment, creating an intimidating, hostile, or offensive work environment. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993).
In this case, the Court finds that plaintiff has failed to provide evidence to support his hostile work environment claim. Onanuga has not specified any unwelcome conduct by defendants or that any such potential unwelcome conduct was based on his protected class. Therefore, defendant[s'] motion on plaintiff's hostile work environment claim is GRANTED.
On appeal, plaintiff contends that HSL engaged in impermissible discrimination when it required him "to do the work of Asian employees because they did not understand quality control and had language deficiencies." He contends that "he had to write reports for other employees not because that was how management exercised its prerogative to assign work as it wished to do but because management perceived those other employees, because of their race (Asian) or national origin (Chinese), as unable to do the work."
This argument has no merit. As plaintiff acknowledges, defendants' decision to have plaintiff do this work was based on his greater proficiency in English. Nothing in the record indicates that the Asian employees had sufficient proficiency in English to do this work properly. Without more, assigning work based on language skills is not discrimination. Cf. Rosario v. Cacace, 337 N.J. Super. 578, 588 (App. Div. 2001) (finding employer did not violate the LAD by terminating employee for failing to observe an English-only office rule where no evidence existed that rule was a proxy for unlawful discrimination); El- Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 170 (App. Div. 2005) (employer did not violate the LAD by reassigning employee to other duties because there was no evidence reassignment was an "adverse employment action"). Nor is there any basis in this record to conclude that the employer was using proficiency in English as a pretext for unlawful discrimination based on ethnicity or national origin.
On appeal, plaintiff also contends that the record contains sufficient evidence of a hostile work environment to survive a motion for summary judgment because his supervisor yelled at him. He disputes defendants' contention that he engaged in insubordination and inappropriate behavior at work. Since this is a motion for summary judgment where plaintiff is given the benefit of the favorable inferences that can be drawn from the evidence, we will assume the plaintiff's supervisor did in fact yell at him. That fact does not give rise to a violation of the LAD and a hostile work environment. Personality conflicts and insults do not alone violate the LAD. Herman v. Coastal Corp., 348 N.J. Super. 1, 21 (App. Div. 2002), certif. denied, 174 N.J. 363 (2002).
[A] hostile work environment discrimination claim cannot be established by epithets or comments which are "merely offensive." An employment discrimination law such as the LAD is not intended to be a "general civility code" for conduct in the workplace . . . Discourtesy or rudeness should not be confused with racial or ethnic harassment, and a "lack of racial or ethnic sensitivity" does not, alone, amount to actionable harassment. Thus, "simple teasing," offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions" [of] employment.
[Ibid. (first alteration in original) (quoting Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999), overruled on other grounds, Cutler v. Dorn, 196 N.J. 419 (2008)).]
After a careful review of the record and the arguments of counsel, we find no merit in the arguments raised in this appeal and affirm for substantially the reasons expressed in Judge Chrystal's June 12, 2009 written opinion.