CANDY BREDT v. REGINA JOHNSON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 0357-04T50357-04T5

CANDY BREDT,

Plaintiff-Appellant,

v.

REGINA JOHNSON, RUTH MOSLEY,

LEE WILLIAMS, REGINA CUNNINGHAM,

UNIVERSITY OF MEDICINE AND

DENTISTRY OF NEW JERSEY, CANCER

INSTITUTE OF NEW JERSEY,

Defendants-Respondents.

_________________________________________

 

Argued March 15, 2006 - Decided April 13, 2006

Before Judges Conley, Winkelstein and

Sapp-Peterson.

On appeal from the Superior Court of

New Jersey, Law Division, Middlesex County, L-7440-02.

Lori A. Kaniper, argued the cause for appellant (Eichen Levinson, attorneys; William O. Crutchlow, on the brief).

Saju C. Mathew, Deputy Attorney General, argued the cause for respondents (Zulima V. Farber, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Mathew, on the brief).

PER CURIAM

Plaintiff Candy Bredt appeals from summary judgment dismissing her claims against defendants, Regina Johnson, Ruth Mosley, Lee Williams, Regina Cunningham, University of Medicine and Dentistry of New Jersey (UMDMJ), and the Cancer Institute of New Jersey (CINJ), for violations of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD). Plaintiff contends that racially charged comments and racial misconduct created a hostile work environment and caused her emotional distress.

Defendants moved for summary judgment, arguing: (1) the record did not support a finding that the alleged harassment was due to plaintiff's race; (2) the conduct about which plaintiff complained was not sufficiently severe or pervasive to meet the LAD standard and the evidence supported a finding that the conduct was merely uncivil; (3) plaintiff failed to demonstrate she belonged to a protected class under the reverse discrimination standard; (4) plaintiff's transfer from her telephone operator position to another position was done at the request of plaintiff's psychiatrist rather than in retaliation for plaintiff's filing of the instant complaint; and (5) plaintiff failed to give timely notice under N.J.S.A. 59:13-5 for her breach of contract claim.

In opposing the motion, plaintiff argued three points. First, she contended there were many factual disputes between the parties that created genuine issues of material fact sufficient to defeat summary judgment. Second, plaintiff contended she established the necessary elements to assert a reverse discrimination hostile work environment claim. Finally, plaintiff contended proper notice was given on the breach of contract claim.

In granting summary judgment, the motion judge recognized that plaintiff worked in a small room with people from diverse racial and personal backgrounds who possessed different views on matters. He characterized plaintiff's claims, however, as interoffice disagreements or the inability to get along as plaintiff desired.

These are small setting[s], people working together, people of different races, people of different values, people have a tendency to maybe make comments that quite -- quite frankly, in the whole context of what was said, this is not a civility code . . . . We have to look to glean whether or not any of this was really racially motivated. . . . We have two different races that were there and two different outlooks on life, and the -- the comments that were made about kicking -- kicking the white ass was made in -- and -- and there's nothing to refute that it was made in -- in the context of what was -- a Kung Fu setting. The other -- the -- the other comment about her -- her anatomy was -- was not, as far as this Court's concerned rises to the level to be racially motivated. The fact that, you know, the comment about her clothes, the comment about this, the comment about that, the fact that somebody worked harder than others, the fact that this, the fact that, that really is not -- not a situation where LAD should afford the -- the person the opportunity to seek money damages for what -- what this Court is -- is characterizes or fin[d]s as -- as just simply some interoffice disagreement or the inability to get -- get along as perhaps the plaintiff want -- wanted.

Our analysis begins with a reiteration of the basic principles of appellate review. The standard of review of a trial court's grant of summary judgment is the same as that employed by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boyland, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where there is no genuine issue as to any material fact challenged. R. 4:46-2(c). The ultimate question in a summary judgment motion is whether, upon a review of the pleadings, deposition testimony and other competent evidence presented, in a light most favorable to the non-moving party, a rational fact-finder could 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).

The evidence evaluated under that standard discloses the following facts. In April 2000, plaintiff Candy Bredt, who is white, was hired by the Cancer Institute of New Jersey (CINJ) as a medical assistant. CINJ is a division of the University of Medicine and Dentistry of New Jersey (UMDNJ). In December 2000, plaintiff applied for a position as a phone operator because it paid more than the medical assistant position and because she was having knee problems and wanted to get off her feet. The work environment in the phone operators' department was described as "crowded" and "loud," creating "tension in the office" and making it "hard to concentrate."

Over the next eighteen months, plaintiff worked with a number of other persons, including defendant Regina Johnson, who is black. The racial makeup of plaintiff's coworkers was white, black, and Hispanic. While some of the workers transferred out of the department to other assignments during this eighteen-month period, Regina Johnson remained in the department the entire time. The workers in the telephone department were supervised by defendants Ruth Mosley and Lee Williams, both of whom are also black.

Plaintiff was friendly with Johnson when they first started working together. She described the relationship as "on and off" depending on Johnson's mood on any given day. Although they would talk about various subjects of interest, their relationship, for the most part, was limited to work. Plaintiff was also work friends with Mosley and Williams. Within days of commencing her employment, plaintiff started to have problems with Johnson. Over the course of the next eighteen months, plaintiff went to her immediate supervisor, Ruth Mosley, four to five times to discuss the problems. Plaintiff believed Mosley was trying to help the situation. For example, on one occasion, Mosley called plaintiff to warn her that Johnson was in a bad mood and told plaintiff, "God bless you." The situation, however, did not improve. Plaintiff also spoke with Mosley's supervisor, Lee Williams, about the problems. Williams was the office manager, whose job it was to "handle any discriminatory or other related problems." According to plaintiff, Mosley and Williams were "good friends" with Johnson, a fact Williams did not deny. Williams qualified her relationship with Johnson, however, as more of a work friendship.

On April 16, 2002, Williams observed that plaintiff was upset. Williams spoke with plaintiff, who expressed her frustration with the work environment because of Johnson. The next day, Williams interviewed other staff. The interviews revealed many hostilities within the department. Plaintiff acknowledged that Williams listened to her and said, "I will not tolerate that. That's going to stop." Williams told plaintiff not to go above her head until she had an opportunity to investigate the problem. Williams explained that she wanted Bredt to respect the regular chain of command within the CINJ organization. Plaintiff felt the instruction was intended to prevent higher authority from finding out about what was happening.

Notwithstanding Williams' instructions, plaintiff attempted to make an appointment with Regina Cunningham, Director of Ambulatory Care, who was black, but Cunningham's secretary told plaintiff there were no openings and that she would have to wait a week or two. The secretary told plaintiff a message would be relayed to Cunningham. Cunningham did not contact plaintiff over the next two days. When Cunningham finally met with plaintiff weeks later, she blamed plaintiff for the work-related problems, hollered at her, and told her she could not transfer. Cunningham also told plaintiff that she found plaintiff's complaint disgusting, which plaintiff interpreted as suggesting that her allegations were made up.

On April 18, 2002, plaintiff filed a written complaint with Roger Hanos, Director of Human Resources. In the complaint, plaintiff wrote that Johnson threatened to "kick [her] white ass," called her "stupid," and repeatedly picked at her dress and made rude comments about her food. Plaintiff wrote that Johnson called her an "asshole" once a week, made comments about her breasts, and made verbal threats. Plaintiff also complained that she constantly had to hear how white state troopers "were always pulling over [Johnson] and her husband."

Barbara Sinko, Principal Management Assistant, subsequently conducted interviews with the staff. She reported the results to Hanos on April 23 and April 30, 2002. Of note, plaintiff's coworkers referenced various hostile incidents associated with Johnson. Additionally, another white coworker corroborated plaintiff's complaint that Johnson constantly spoke about racial profiling. Hanos' report, however, did not indicate that plaintiff complained about any racial hostility during the interview.

On May 3, 2002, plaintiff and Johnson were formally disciplined by CINJ for inappropriate and unprofessional behavior and inappropriate verbal dialogue on non-work related issues. The record does not indicate why plaintiff's complaint about Johnson resulted in a reprimand to plaintiff. Plaintiff believed she received a reprimand because she filed the complaint.

On May 8, 2002, plaintiff was treated by Dr. Katherine Rhoades for depressive disorder and panic disorder without agoraphobia. Plaintiff was seen in June 2002 for chest tightness and pain by Dr. Eisenstein at the Robert Wood Johnson Hospital. Dr. Eisenstein prescribed medication. His diagnosis was "atypical chest pain - anxiety".

On July 9, 2002, Dr. Rhoades ordered plaintiff to take an eight-week leave of absence from CINJ for "panic disorder [without] agoraphobia and depressive disorder [not otherwise specified]." Plaintiff's leave was approved on an unpaid basis until August 7, 2002. On August 7, 2002, the leave of absence order was renewed and extended to October 8, 2002.

On October 3, 2002, Dr. Rhoades allowed plaintiff to return to work, provided plaintiff was not assigned to the same department or conditions and had no direct contact with patients. Four days later, Hanos notified plaintiff there were no other senior receptionist positions open and instructed her to speak with Human Resources about other available positions. After speaking with Human Resources, plaintiff requested a transfer to the mail room. The move was approved by Dr. Rhodes. Plaintiff was unable to meet the physical requirements of the new position and resigned on November 3, 2003.

Plaintiff filed a five-count complaint on August 6, 2002, naming Regina Johnson, Ruth Mosley, Lee Williams, Regina Cunningham, University of Medicine and Dentistry of New Jersey, Cancer Institute of New Jersey, and fictitious entities. She alleged discrimination (race and national origin) (Counts One and Three); retaliation (Count One); respondeat superior (Count Two); breach of contract (Count Four); and breach of the obligation of good faith and fair dealing (Count Four). The final count was a general count for the fictitious entities and repeated all other allegations (Count Five).

The elements of a cause of action for a hostile work environment claim were definitively outlined in Lehmann v Toys 'R' Us, 132 N.J. 587, 603-04 (1993). The elements set forth in Lehmann have been applied to other forms of harassment for which protections have been afforded under the LAD. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002). Thus, in the context of race-based hostile work environment, the elements necessary to establish such a claim are identical to those required to bring a gender-based harassment complaint. Ibid. That is, a plaintiff "must show that the complained-of conduct (1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive." Ibid. (citing Lehmann, supra, 132 N.J. at 603-04).

Because white plaintiffs are not considered a protected class for purposes of race under the LAD, claims of discrimination brought by white plaintiffs are characterized as reverse-racial discrimination, and such claimants are held to a heightened standard. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 551 (1990). Under that standard, the plaintiff must show that he or she has "been victimized by an 'unusual employer who discriminates against the majority.'" O'Lone v. New Jersey Dept. of Corr., 313 N.J. Super. 249, 254 (App. Div. 1998) (quoting Erickson, supra, 117 N.J. at 551).

Here, plaintiff contends Johnson's speech and conduct were clearly indicative of her racial animosity towards white people and created a work environment of "black vs. white" and "us vs. them." Johnson told plaintiff that she had a "black butt" and subsequently smacked her on the buttocks on at least three occasions. Johnson threatened to "kick her white ass." Johnson routinely spoke about how white state troopers always harassed her and her husband. In her deposition plaintiff testified that because the office was small and crowded, she was forced to listen to Johnson's contentious discussions with others, including her supervisor defendant Willaims, about how white people got all of the jobs and that there were not enough black doctors and nurses at CINJ. Plaintiff testified that she recalled on one occasion that defendant Williams distributed a flier that depicted photographs of newly graduated doctors. Johnson and Williams looked at the photos to see "how many black doctors graduated because it's all white people and Indians." They then said, "Look at that. Disgusting." In addition to the racially charged comments, plaintiff testified that Johnson told her that she hated her, called plaintiff stupid, also called her "asshole" once a week, and on one occasion took her finger and pushed it against plaintiff's breast.

Defendants contend the "black butt" comment was intended as a compliment and had no intended negative connotation. Johnson, as an African-American, was merely trying to compliment plaintiff by drawing the comparison that the shape of plaintiff's buttocks resembled someone who is African-American. Defendants also contend the "kick your white ass" comment was in response to a discussion plaintiff was having with another coworker about Kung Fu. Further, defendants claim the discussions about Johnson being racially harassed on the New Jersey Turnpike were with persons other than plaintiff, and that it was merely plaintiff's subjective belief that the comments were directed towards her. Further, defendants urge of greater import is the fact that the remarks attributed to Johnson over an eighteen-month period are so isolated that they could hardly be viewed as meeting the severe or pervasive standard. Finally, defendants point out that plaintiff made no complaints about racial harassment when given an opportunity to fully describe her complaints to Barbara Sinko.

Whether Johnson's comment about plaintiff's buttocks was intended as a compliment, and whether Johnson's remark about kicking plaintiff's "white ass" was made in the context of Kung Fu, is irrelevant for purposes of establishing an LAD claim. Under Lehmann, supra, "[A] plaintiff need not show that the employer intentionally discriminated or harassed her, or intended to create a hostile work environment." 132 N.J. at 604. Likewise, the fact that Johnson voiced her opinions about white people to others is not dispositive. There is evidence in this record that Johnson made racially insensitive and physically threatening remarks directly to plaintiff about which plaintiff contemporaneously complained to her supervisors. Thus, the facts in this record are distinguishable from those cases where the offending conduct was directed at persons other than the plaintiff. Caver v. City of Trenton, 420 F.3d 243, 263 (3d Cir. 2005) (racist remarks were not directed to plaintiff, and plaintiff never personally saw racist graffiti or flyers in the workplace); Heitzman v. County of Monmouth, 321 N.J. Super. 148-49 (App. Div. 1999) (anti-Semitic remarks were not specifically directed to plaintiff, and plaintiff never complained to anyone about the remarks). Moreover, plaintiff disputes defendants' characterization of Johnson's comments as isolated events that occurred over an eighteen-month period. Plaintiff contends the conduct was ongoing and that she complained all of the time. She also testified that she never saw the report prepared by Sinko.

As the Third Circuit in Cardenas v. Massey, 269 F.3d 251, 262-63 (3d Cir. 2001) stated, and recently reiterated in Caver, supra, 400 F.3d at 264, "the advent of more sophisticated and subtle forms of discrimination requires that we analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment in evaluating a hostile work environment claim." We are satisfied that when the race-based comments and conduct directed at plaintiff, and the racially insensitive remarks about white people plaintiff was forced to overhear, are considered along with the facially neutral comments and conduct Johnson directed towards plaintiff, a jury could reasonably find that Johnson's conduct and racially charged comments were directed towards plaintiff because she was white, were sufficiently severe or pervasive to make a reasonable person believe that the conditions of the workplace had been altered, and that the working environment had become hostile or abusive. Lehmann, supra, 132 N.J. at 603-04.

In addition to establishing a prima facie case of race-based hostile work environment, a plaintiff must show, in a reverse-discrimination case, that her employer was the unusual employer who discriminated against the majority. Erickson, supra, 117 N.J. at 551. In Entrot v. BASF Corp., 359 N.J. Super. 162 (App. Div. 2003), we addressed the factors to consider in determining whether vicarious liability may be imposed against an employer. Id. at 173. By analogy, Entrot is instructive on the factors courts should consider in determining whether an employer is the unusual employer who discriminates against the majority. Ibid. Among four factors a fact-finder should consider when determining whether to impose vicarious liability are whether: 1) the employer delegated to the supervisor the authority to control the situation leading to the plaintiff's complaint; 2) the supervisor exercised that authority; 3) an LAD violation resulted; and 4) the authority delegated by the employer aided the supervisor in causing the injury of which the plaintiff complains. Ibid.

Applying these factors in a reverse discrimination case, we find that Mosley and Williams, who were both black, supervised the telephone room. The employer delegated to them full control over the staff and the day-to-day activities of the telephone operation. Plaintiff asserts that she spoke with Mosley and Williams on several occasions about Johnson's conduct. They appeared sympathetic and led plaintiff to believe they would address the problem, but Johnson's conduct did not change. Moreover, Williams specifically discouraged plaintiff from pursuing her complaints about Johnson. In addition, according to plaintiff, Williams, on occasion, participated in some of the racially charged conversations about which plaintiff complained.

We are thus satisfied that when these facts are viewed favorably towards plaintiff, a jury could reasonably conclude that defendant CINJ was the unusual employer who discriminated against the majority.

We recognize that the LAD was never intended to establish "a 'general civility' code for workplace conduct." Heitzman, supra, 321 N.J. Super. at 147 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, ___, 118 S. Ct. 2275, 2283-84, 141 L. Ed. 2d 662, 677 (1998)). It is also well-settled that "offensive, crude or inappropriate comments are not automatically discriminatory because the words used are tinged with racial stereotypes . . . ." Flizack v. Good News Home For Women, Inc., 346 N.J. Super. 150, 160 (App. Div. 2001) (citing Reyes v. McDonald Pontiac-GMC Truck, Inc., 997 F. Supp. 614, 617 (D.N.J. 1998)). Nonetheless, we are satisfied that the totality of the circumstances, viewed in a light most favorable to plaintiff, establish a causal connection to plaintiff's status as a white person and the ongoing harassment to which plaintiff contends she was subjected over an eighteen-month period. Accordingly, we reverse the grant of summary judgment, reinstate plaintiff's LAD claims, and remand for further proceedings.

Reversed and remanded. We do not retain jurisdiction.

 

In both her summary judgment motion and appeal, plaintiff also argues that she was subjected to sexual harassment, but her LAD claims are limited to a claim of racial discrimination. Additionally, although summary judgment was granted as to all claims, we were advised at argument that plaintiff's appeal is limited to her LAD claims.

Also referred to as Regina Hagan and Regina Johnson-Hagan.

Also referred to as Lee Fowler.

(continued)

(continued)

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A-0357-04-T5

April 13, 2006