SAMUEL R. ONANUGA v. HUNTINGDON LIFE SCIENCES INC.

NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                            SUPERIOR COURT OF NEW JERSEY
                            APPELLATE DIVISION
                            DOCKET NO. A-5743-08T1



SAMUEL R. ONANUGA,

     Plaintiff-Appellant,

v.

HUNTINGDON LIFE SCIENCES,
INC., KAY SALADDIN, and
BARBARA LITZENBERGER,

    Defendants-Respondents.
____________________________________

                                               May 19, 2010
          Submitted April 12, 2010 - Decided

          Before Judges Rodríguez and Chambers.

          On appeal from the Superior Court of
          New Jersey, Law Division, Union County,
          Docket No. L-2697-07.

          Vort & Morgen, LLC, attorneys for appellant
          (Robert A. Vort, on the brief).

          DiFrancesco, Bateman, Coley, Yospin,
          Kunzman, Davis & Lehrer, P.C., attorneys for
          respondents (Richard P. Flaum and Matthew A.
          Sacharoff, on the brief).

PER CURIAM

     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 -49.1    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.

                                I

     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).




1
  Plaintiff's complaint also asserted other legal theories and
alleged violations of other statutes, but the trial court's
decisions dismissing those claims have not been appealed.



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                                2

       Looking at the record from the perspective most favorable

to plaintiff, the relevant facts are as follows.      Plaintiff, who

is black and Nigerian,2 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 coworkers 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.

2
    This information is set forth in his complaint.



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    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


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                               4

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, [450] (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.




                                               A-5743-08T1
                     5

      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


                                               A-5743-08T1
                        6

         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

                                                    Cf. Rosario v.
based on language skills is not discrimination.

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


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                               7

(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,


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                                 8

         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.

    Affirmed.




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