Argued June 4, 2014
Approved for Publication September 16, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6863-10.
Richard E. Yaskin argued the cause for appellant (Mr. Yaskin and William Riback, attorneys; Mr. Riback and Alix Schwartz, on the briefs).
Erin L. Peters argued the cause for respondent (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys; Daniel B. McMeen, of counsel and on the brief; Ms. Peters, on the brief).
Before Judges LIHOTZ, MAVEN and HOFFMAN. The opinion of the court was delivered by LIHOTZ, J.A.D.
[437 N.J.Super. 369] LIHOTZ, J.A.D.
Plaintiff Brian Dunkley appeals from an October 12, 2012 order granting defendant S. Coraluzzo Petroleum Transporters summary judgment and dismissing plaintiff's complaint claiming violations of New
Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff's complaint alleged hostile work environment, constructive discharge, and violation of public policy. Plaintiff also appeals from an order denying his motion for reconsideration of the summary judgment dismissal and a May 23, 2012 [437 N.J.Super. 370] order entering a protective order related to a prior sexual harassment claim filed against defendant.
On appeal, plaintiff challenges the entry of summary judgment, asserting the judge based his conclusion on erroneous factual findings and improperly limited necessary discovery. Viewing the facts in the summary judgment record, in a light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995), we conclude plaintiff's complaints of avoidance by fellow employees after he reported acts of racial discrimination by a co-worker are insufficient to support an LAD claim for retaliatory discharge or impose vicarious liability on the employer. Accordingly, we affirm.
Plaintiff commenced his employment with defendant as an oil delivery driver on May 4, 2010. Defendant provided plaintiff with an employee handbook, which contained the rules governing his employment. Plaintiff also attended two days of in-class safety training and two weeks of " on-road" on-the-job training.
Richard Harrington, another truck driver, was assigned as plaintiff's on-road trainer. During the training period, plaintiff accompanied Harrington as he " dr[ove] to a refinery, g[ot] oil and then [went] on a set route and deliver[ed] the oil[.]" Harrington also instructed plaintiff regarding " the actual job," which included " loading and offloading oil or fuel[.]"
In the course of the two-week training period, Harrington made numerous race-related comments directed toward plaintiff, an African-American, or in his presence. On plaintiff's first day, Harrington stated " I'm from Ohio and you know what originated there don't you?" When plaintiff replied that he did not, Harrington stated: " The Klan. The Klan originated there." Harrington repeated a reference to the Klan on another occasion; however, he never clarified whether he had an affiliation with the group.
Harrington also recounted anecdotes insinuating he was tied to a motorcycle gang. For example, Harrington told plaintiff his [437 N.J.Super. 371] father was a member of a motorcycle gang and recounted an incident where a
local guy came over to his dad's property and he engaged in an argument with the guy, and the guy said he was going to do something to his father as far as bodily harm. And his father made one phone call to the leader of this motorcycle gang and he came over, got in a tussle with the guy, and the guy was in fear of his life and he had left the premises. And he told [plaintiff] if [h]e or anybody ever had a problem with his family, that they would be taken care of.
Plaintiff believed Harrington was relating these accounts because he " was trying to, for some reason[,] put fear into me."
Plaintiff also reported statements made by Harrington that he believed were racially offensive, such as: " Allen Iverson and his friends are black thugs from a bad neighborhood," which plaintiff felt stereotyped African-Americans. On another occasion, Harrington told plaintiff his truck was vandalized when he stopped at a red light and " [plaintiff's] little brothers, . . . came out and they paintballed [my] truck[.]" Harrington also conveyed derogatory comments complaining about African-American women he saw in a grocery store, stating
how he's tired of the girls with the food stamps in the line, and . . . he started mimicking them[ how they talk. And then he start[ed] saying, " I got my food
stamps and I don't care who's waiting in line," this and that, because they were holding up the line of some sort. And then he said to [plaintiff], " You look in their basket, they are eating T-bone steaks and stuff better than I can eat because it's all given to them with the state, food stamps."
When their truck needed repair, Harrington and plaintiff went to an African-American mechanic. Harrington addressed the mechanic as he prepared to work on the truck, stating: " I want to -- it looks like you're -- I want to say the word, but I can't. . . . I can't say the word. I'll get in trouble. . . ." The mechanic responded, " I know what you are trying to say. You're trying to say it looks like I'm nigger rigging." Harrington agreed that was " what I am trying to say, but I can't say it because I'll get in trouble."
When plaintiff did not report for work, Elwood Sickler, defendant's safety coordinator, called to inquire about his absence. Plaintiff explained " there w[ere] a lot of reasons" he decided not to [437 N.J.Super. 372] come into work. The next day, plaintiff met with Sickler, Thomas Sprague, defendant's safety director, and Steve Coen, defendant's regional safety manager. Plaintiff recounted the incidents with Harrington, using a list he had prepared the prior evening, explaining these were " things that were bothering me, why I didn't want to work there[.]"
Following this meeting, plaintiff received a phone call from Sickler informing him a new trainer, Greg Castellini, was assigned as his instructor. Plaintiff returned to work approximately one day later, and never again saw or spoke to Harrington. Following his reassignment to work with Castellini, plaintiff suffered no treatment similar to that experienced with Harrington.
However, plaintiff insisted he endured negative consequences after reporting Harrington's conduct, and these consequences caused his constructive discharge. He noted his report was not kept confidential and he felt ostracized by co-workers, who " would shy away" from him. " The guys that were in the yard that [he] used to know, they wouldn't even say a word to [him] after that. And everybody knew [he] was with [Harrington], and then all of a sudden [there was] a big change." Further, when plaintiff attempted to speak with Sickler, he was " advised that because [plaintiff] had brought a complaint [about] the hostile work environment, [he] was being outcasted [sic]."
Plaintiff also told Castellini he did not receive proper training from Harrington; Castellini agreed Harrington had instructed him incorrectly on a number of protocols. Plaintiff noted Harrington had not taught him how to operate the truck's computer, failed to instruct him not to pressurize the truck after unloading fuel and did not advise him not to take vendors' keys.
Castellini reported Harrington's lapses to " management." On the day he learned Castellini had done so, plaintiff was ...