JENISE HOGG v. AETNA, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2119-04T22119-04T2

JENISE HOGG,

Plaintiff-Appellant,

v.

AETNA, INC. and

GLENN DeLUCA,

Defendants-Respondents.

_______________________________________

 

Argued: September 27, 2006 - Decided December 19, 2006

Before Judges Stern, A. A. Rodr guez and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-10994-02.

David H. Kaplan argued the cause for appellant (Tobias & Kaplan, attorneys;

Mr. Kaplan, on the brief).

Christopher H. Mills argued the cause for respondent (Fisher & Phillips, attorneys; David H. Ganz, on the brief).

PER CURIAM

Plaintiff, Jenise Hogg, appeals from the August 13, 2004 and December 17, 2004 summary judgments which dismissed all of her claims against defendants Aetna, Inc. (Aetna) and Glenn DeLuca. There is a claim against Aetna and DeLuca for maintaining a racially hostile work environment in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -5 (LAD). There are separate causes of action against Aetna alone for: breach of employment contract; retaliation for engaging in an activity protected by LAD; and negligence, which caused "severe emotional pain and anguish as well as physical manifestation of this emotional distress." We reverse the dismissal of the retaliation cause of action and affirm the dismissal of all other claims.

I

These are the pertinent facts, viewed in the light most favorable to Hogg, as we must do in reviewing a summary judgment. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995). Hogg is an African-American woman from Jamaica. In June 1998, Hogg began working for Prudential HealthCare in Woodbridge as an "ERISA Technician." In 1999, Aetna acquired Prudential. Hogg became an Aetna employee. Her job responsibilities remained the same. However, because Aetna did not have an "ERISA Technician" job title, Hogg's job title was changed to "Underwriting Analyst."

In March 2000, DeLuca became the manager of Hogg's unit, which consisted of Hogg and three Caucasian women: Marie Aucello, Helen Olchaskey, and Beverly Ionadi. The following year, the unit was transferred from Aetna's Woodbridge offices to Cranbury.

On April 26, 2001, Hogg wrote a letter to Aetna and a carbon copy to Human Resources personnel, Susan C. Dyl and Carol Skinner, complaining that due to her race, her salary was lower than Aetna's pay scale. In pertinent part, the letter stated:

I the undersigned of this letter [am] requesting that Aetna adjusted my salary to [reflect] the current market value and other white coworkers both male and female who hold the same job title and is [sic] currently receiving almost twice my salary.

I have obtain[ed] a print out of the JVS JOB METRIC PAY SCALE or MARKET REFERENCE INFORMATION and I have gone to my manager Glenn Deluca and ask[ed] him to correct my salary and he told me that this is not for me[.] After talking with him I came home on [sic] call[ed] the Connecticut HR office at 1 800-275-2595/860-273-9000 where I have spoken [sic] to a Karen/Latasha in HR [ ] they both confirm[ed] that my job code [was] #429083 and title as a Underwriting Analyst by taking these [sic] information to prove that she was speaking to the correct person, my name, birthday, social security #, and my Aetna number.

. . . .

I have receive[d] several thank you note [sic] from Group Rep for cases that I have completed and released to them which I have showed to my Manager and asked him to place them in my folder he said no, what if you had gotten a complain[t] on one of your cases would you give me that to put in you[r] file. But yet white coworker [sic] would do nothing and receive a big reward and grading.

I am [the] only black minority woman on that team [and] I feel all the mishap.

I have spoken to my attorney, the EEOC and the Civil Liberty [sic] Union which advise[d] me to send a letter to you for immediate change to my salary plus retroactive pay to reflex the other white coworker [sic] across the nation and in my area so that they would not need to get involved, this is a clear violation of the 1964 Discrimination Act of The Civil Right [sic].

According to Hogg, DeLuca was very upset with her for writing this letter, which resulted in an investigation by Aetna's Human Resources Department. Susan Williams, the Employee Practices Consultant, led this investigation, with the assistance of Susan Dyl. Williams first recommended an immediate salary increase to $30,500 for Hogg. This recommendation was rejected by Aetna Management, which included DeLuca. Management disagreed with the amount of the raise. Ultimately, a pay raise to $27,000 per annum, with increases retroactive to September 1999 was agreed to.

Hogg alleges that DeLuca and/or Aetna engaged in the following acts of retaliation: (1) Deluca yelled at and ignored her; (2) another employee was selected as unit lead; (3) requirements for changing work schedules were unfairly applied only to her; (4) the requirement for her to email her start and stop times was discriminatorily applied to her; (5) requirement of 24-hours notice for time off was discriminatorily applied to her; (6) Aetna failed to send her company-wide emails; (7) Aetna failed to send her a supervisor grading survey; (8) Aetna failed to invite Hogg to a going-away luncheon for her direct supervisor, Beverly Ionadi; and (9) Aetna excluded her from attending "Cranfest." Shortly after Hogg's unit moved from Woodbridge to Cranbury, Aetna held a company function called "Cranfest," a celebration with free food, drinks and music. Hogg was not invited. When Hogg noticed co-employees gathering, she asked about "Cranfest." A co-employee told her that "everybody got the e-mail and everybody is going" and "even the janitors are invited to go." Hogg asked her co-worker, Helen Olchaskey, to call DeLuca and ask if Hogg could attend. Hogg listened to Olchaskey's call. Olchaskey advised Hogg that DeLuca said, "it's not for you. That you can't go."

Hogg alleged that after a meeting among herself, Aucello and DeLuca regarding teamwork, DeLuca made an inappropriate remark. Hogg testified at her deposition to the following conversation relayed by Aucello. After the meeting, DeLuca called Aucello back to his office:

And [Aucello] said [DeLuca] proceeded to have a conversation with her like to blame me for stuff and for her to blame me. And she said, excuse me, what are you talking about. I don't have any problem. And he proceed[ed] to say, don't you have a problem with Jenise.' And she said 'no, Jenise is nice to me. I have no problem with her. What is this regarding.' And she said he was like putting me back and forth against her. Want her to go back against me [sic]. And she wouldn't go with it. And she said 'you know what, I'm leaving.' And he said - no, he said 'I wish I had a mirror for you to look in and see yourself.' And she said, 'excuse me.' And then the meeting was over.

This incident was reported to Julie S. Schunan, Human Resources Consultant, at Aetna. She generated the following e-mail to Dyl:

Susan - Yesterday, I met with Maria Aucello and Genise [sic] Hogg from Underwriting. They had come to report an incident that made them feel uncomfortable. Marie stated that the team had met with Glenn DeLuca to discuss teamwork. Shortly after, Glenn called Marie to his office. Marie thought he was calling her in to discuss a case, but Glenn started talking to Marie about teamwork. According to Marie, Glenn said, "I should bring in a mirror so you can see yourself." Marie continued and stated that Glenn said there was tension between Marie and Genise [sic] (which Marie and Genise [sic] deny). Genise [sic] stated that she had some difficulties with Glenn in handling PTO time regarding her brother's death and cousin's death. I told them that I would pass this information along to you and one of us would follow up.

Hogg sued Aetna and DeLuca asserting several causes of action. Defendants answered and denied all allegations. Defendants moved to compel Hogg to appear at a deposition. The judge granted the unopposed motion. Hogg did not comply with this order. Defendants moved to dismiss the complaint and for an award of fees and costs. The judge granted the motion, dismissing the complaint without prejudice, and awarding attorneys' fees and costs in the amount of $4,413.30 plus interest. Hogg moved to restore. Defendants opposed this motion. The judge denied, without prejudice, the motion to restore, and ordered Hogg to pay the attorney's fees and costs and to "provide all outstanding discovery requested by defendants within 20 days" as a condition precedent to restoring the complaint.

Defendants moved for partial summary judgment of the hostile work environment claim. Hogg opposed the motion, cross-moved to disqualify the judge based on a perceived bias, and moved again to restore the complaint. Defendants cross-moved to dismiss the complaint, with prejudice. The judge: (a) granted Hogg's motion to restore; (b) denied defendants' cross-motion to dismiss, with prejudice; (c) granted summary judgment to defendants on the racially hostile work environment claim; (d) denied Hogg's motion to disqualify; and (e) determined that the attorney's fees and costs should be assessed against Hogg's counsel, not her.

Defendants then moved for summary judgment on the remaining claims. The judge granted the motion and dismissed the complaint.

II

Hogg appeals contending that the judge erred in dismissing her hostile work environment claim because "the evidence, viewed most favorably to [her] establishe[d] that [her] work environment was racially hostile." We disagree.

Plaintiff's hostile work environment claim is grounded in the LAD. Our review of a hostile work environment claim requires us to consider the totality of the circumstances. See Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 607 (1993); Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005). The purpose of the LAD is "nothing less than the eradication of the cancer of discrimination." Lehmann, supra, 132 N.J. at 600 (citations omitted). In Lehmann, the Supreme Court set forth the standard for determining whether acts of workplace harassment constitute invidious discrimination in violation of the LAD. Pursuant to this standard, Hogg must demonstrate that:

the complained-of conduct (1) would not have occurred but for the employee's [race or ethnicity]; and it was (2) severe or pervasive enough to make a (3) reasonable [person's of plaintiff's race or ethnicity] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.

[Id. at 603-04 (emphasis in original).]

More recently, we have restated this standard as follows:

[T]he plaintiff must demonstrate that: (1) the conduct complained of was unwelcome; (2) that it occurred because of the plaintiff's inclusion in a protected class under the LAD; and (3) that a reasonable person in the same protected class would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive work environment.

[El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005) (citation omitted).]

To satisfy the first prong of Lehmann, Hogg must prove that the harassment "would not have occurred but for" her race. Lehmann, supra, 132 N.J. at 603 (emphasis in original). As stated in Lehmann:

[t]he first element of the test is discrete from the others. It simply requires that in order to state a claim under the LAD, a plaintiff show by a preponderance of the evidence that she suffered discrimination because of her [race]. Common sense dictates that there is no LAD violation if the same conduct would have occurred regardless of the plaintiff's [race]. For example, if a supervisor is equally crude and vulgar to all employees, regardless of their [race], no basis exists for a [racial] harassment claim. Although the supervisor may not be a nice person, he is not abusing a plaintiff because of her [race].

[Id. at 604 (emphasis added).]

The Supreme Court distinguished potential forms of harassment into two types. The opinion explains that "[w]hen the harassing conduct is [race-based] in nature, the but-for element will automatically be satisfied." Id. at 605. Conversely, "[w]hen the form of the harassment is not obviously based on the victim's [race], the victim must make a prima facie showing that the harassment occurred because of her [race]." Id. at 605 (emphasis added). The Court provided that:

[i]n such non-facially [race]-based harassment cases a plaintiff might show that such harassment was accompanied by harassment that was obviously [race]-based. Alternatively, she might show that only [racial minorities] suffered the non-facially [race]-based harassment. All that is required is a showing that it is more likely than not that the harassment occurred because of the plaintiff's [race].

[Ibid.]

Here, Hogg sets forth only two allegations that could potentially be considered race-based on their face. First, is DeLuca's reference to Hogg as being Puerto Rican. However, calling someone "Puerto Rican" is not derogatory. It is simply a reference to a person's nationality. Indeed, Hogg acknowledged that there was "nothing wrong with" being Puerto Rican and that she was simply insulted that DeLuca had not taken the time to learn her nationality. Moreover, although DeLuca was incorrect, there is no indication that he intended this statement to be insulting or disparaging to Hogg.

The other allegedly race-based harassing conduct was DeLuca's comment to Hogg's Caucasian co-worker, Marie Aucello, that Aucello should "bring in a mirror so you can look at yourself." However, despite Hogg's and Aucello's speculation, there is no indication that DeLuca's comment had anything to do with Aucello being "loyal to those of her own race." Indeed, Hogg testified that DeLuca made the statement in the context of a meeting about teamwork. Therefore, we conclude that these two comments by DeLuca cannot be considered facially race-based harassment for purposes of the LAD.

Hogg's other allegations of discriminatory harassment are not facially race-based. Therefore, in order to satisfy her burden under the first prong of Lehmann, she must demonstrate that only racial minorities suffered the harassment she alleges, or that it is more likely than not that the harassment occurred because of her race. Lehmann, supra, 132 N.J. at 605, Herman v. Coastal Corp., 348 N.J. Super. 1, 20-21 (App. Div.) (citations omitted), certif. denied, 174 N.J. 363 (2002). Hogg did not meet this burden. She set forth no evidence that she was treated any differently than her Caucasian co-workers.

It is true that, as of April 2001, Hogg was the lowest-paid member of her unit. However, it is undisputed that Hogg was the least experienced member of her unit. More importantly, when Hogg informed Aetna of her belief that she was under-paid due to her race, Aetna promptly conducted a thorough investigation which resulted in a pay raise and retroactive pay. Aetna also raised the salary of Hogg's Caucasian co-worker, Marie Aucello, and made their salaries equal. Although Hogg and Aucello were still paid less than the other Caucasian members of their unit, this discrepancy is justified by the fact that Ionadi and Olchaskey had ten years more experience than Hogg, and previously worked in more complex positions. Hogg's initial salary inequity does not satisfy her burden of demonstrating that she was treated differently by Aetna due to her race.

As to Hogg's allegations that she was not invited to "Cranfest" or to Ionadi's going-away luncheon, Hogg cannot demonstrate that she was treated differently in these instances because of her race. She testified that she did not know whether her Caucasian co-workers were invited to these events. It is undisputed that none of Hogg's Caucasian co-workers actually attended the DeLuca-Ionadi going-away lunch.

Similarly, with regard to Aetna's 24-hour vacation notice policy and the ERISA unit's policy of emailing irregular stop-and-start -times to management, Hogg cannot demonstrate that she was treated differently because of her race. She admits that these policies applied to her Caucasian co-workers as well as herself. Hogg has provided no evidence that the policies were not enforced as strictly against her Caucasian co-workers as they were against her; or that the e-mails which were addressed to her entire unit were really directed to her alone.

Finally, regarding DeLuca's alleged unfriendliness and yelling at Hogg, there is, again, no evidence that Hogg was treated differently than her Caucasian co-workers. It is significant that Hogg's Caucasian co-worker, Aucello, had the same complaints as Hogg about DeLuca's management style.

Pursuant to the second prong of the Lehmann test, requiring the remarks to be severe and pervasive, it is clear that mere impoliteness, discourtesy, and rudeness are insufficient to establish actionable racial harassment. In Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999) (citations omitted) (emphasis added), we explained:

[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. "[D]iscourtesy 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."

Pursuant to this standard, we held that when viewed objectively, the alleged anti-Semitic comments of the plaintiff's supervisors in that case "were not sufficiently severe or pervasive for a trier of fact to find that plaintiff's working environment was hostile or abusive." Id. at 149.

Here, in viewing the facts in the light most favorably to Hogg, the remarks, upon which Hogg grounds her hostile work environment discrimination claim, were at worst "annoying." Hogg has not presented sufficient evidence to permit a jury to find that the "complained-of conduct would have occurred but for" her race, nor that the complained of remarks were sufficiently extreme to create an abusive or hostile workplace. See Lehmann, supra, 132 N.J. at 603. Thus, Hogg has neither satisfied the first nor the second prong of the Lehmann test and her LAD claim based on a hostile work environment fails.

III

Hogg also contends that she established a prima facie case that defendants violated the LAD by retaliating against her and, eventually, terminating her employment for complaining that she was being paid less than her Caucasian co-workers. We agree with this contention.

The LAD makes it an unlawful employment practice:

d. For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 10:5-12d.]

If the plaintiff succeeds in making a prima facie showing, the burden shifts to the employer to rebut the presumption of intentional discrimination by "articulat[ing] some legitimate, nondiscriminatory reason for" its adverse employment decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 678 (1973); see also Anderson v. Exxon Co., 89 N.J. 483, 492 (1982) (explaining our understanding of the McDonnell Douglas test). A claim of retaliation involves several tiers of proof. First, the plaintiff must establish a prima facie case. See Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). This is done by demonstrating by the preponderance of the evidence that: "(1) claimant engaged in a protected activity known to the employer, (2) claimant thereafter was subjected to adverse employment decision by the employer, and (3) there was a causal link between the two." Ibid. (citations omitted). However, a retaliation claim, unlike a claim of racial discrimination, does not carry the but-for-race element.

Here, the first prong of the prima facie case has been satisfied, as defendant acknowledged that "the April 2001 letter wherein Hogg suggests that her salary was low compared to other Caucasian employees is arguably protective activity."

With regard to the second prong, conduct is retaliatory if it "alters the employee's 'compensation, terms, conditions, or privileges of employment,' deprives him or her of 'employment opportunities,' or 'adversely affects his [or her] status as an employee.'" Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (2d Cir. 1997) (citations omitted). In viewing the facts in the light most favorable to Hogg, she has demonstrated that she suffered from the following adverse employment decisions by the employer: (1) excluded her from company events and e-mails; (2) ignored her and bypassed her from appointment to Unit Lead, favoring less experienced employees; and (3) threatened to and ultimately succeeded in firing her. See Brill, supra, 142 N.J. at 523. Although, she could not prove that these adverse employment acts occurred because of her race, she sufficiently demonstrated that she was subjected to these acts following her April 2001 letter.

Finally, as to the third prong, viewed in the light most favorable to Hogg, she has demonstrated, by a preponderance of the evidence, that there was a causal link between the employer's adverse employment decisions and her April 2001 letter.

As stated above, in a retaliation claim, Hogg does not have to demonstrate that the employer would not have made the adverse employment decision but-for-her-race. Instead, Hogg must merely demonstrate, by a preponderance of the evidence, that she engaged in protected activity, she was subject to adverse employment action, and there was a causal link between the two. See Jamison v. Rockaway Twp. Bd. of Educ., supra, 242 N.J. Super. at 445. When viewing the evidence in the light most favorable to Hogg, she has presented evidence that is "sufficient to permit a rational fact finder to resolve the alleged dispute issue in favor of" Hogg. Brill, supra, 142 N.J. at 523.

IV

Hogg argues that the judge "abused his discretion in failing to recuse himself" from this case because the judge's "bias towards Hogg's attorney [David Kaplan] and his law firm [wa]s objectively established." According to Hogg, "[d]uring this litigation, and during other LAD cases handled by her counsel's law firm, the judge displayed disparate treatment of the law firm and the clients," and this bias "is borne out by the facts of the various cases . . . assigned to [the judge]." In support of this contention, Hogg points to the judge's grant of discovery sanctions against Hogg's counsel in this case, as well as six other cases in which the judge issued adverse rulings to Hogg's law firm. Some of these rulings were reversed on appeal. We are not persuaded.

The parameters governing the disqualification of judges are set forth in State v. Marshall, 148 N.J. 89, 275-76 (1997) (citations omitted):

Under our rules, the judge of any court "shall be disqualified" if the judge has given an opinion on the matter before the court, R. 1:12-1(d), if the judge is interested in the outcome of the matter, R. 1:12-1(e), or if there is "any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(f). The disqualification decision is initially left to the discretion of the trial court. Moreover, judges are not free to err on the side of caution; it is improper for a court to recuse itself unless the factual bases for its disqualification are shown by the movant to be true or are already known by the court.

Fundamental to any consideration of possible judicial disqualification is a showing of prejudice or potential bias.

It is clear that, absent a finding of bias or prejudice, "[a]n adverse ruling in prior proceedings does not warrant disqualification." Ibid. (emphasis added). Similarly, "[a]n error by the court in the previous proceeding does not necessarily justify an inference of bias and will not, by itself, furnish a ground for disqualification." Ibid.

Here, Hogg's argument that the judge was biased against her law firm is based on the facts that: (1) the judge imposed discovery sanctions against Kaplan and his law firm in this case; (2) the judge imposed discovery sanctions against Kaplan and his law firm in another case, which were affirmed on appeal; and (3) the judge made some adverse rulings against Kaplan and his law firm in other cases, some of which were reversed on appeal. Significantly, Hogg does not point to any remarks by the judge that exhibit a bias towards her minority group, or which a reasonable person would take as reflecting bias. See, e.g., State v. Perez, 356 N.J. Super. 527, 533 (App. Div. 2003). Nor does Hogg allege that the judge made any inappropriate comments or held any preconceived opinions about the case. See, e.g., Panitch v. Panitch, 339 N.J. Super. 63, 68 (App. Div. 2001); Carmichael v. Bryan, 310 N.J. Super. 34, 39 (App. Div. 1998).

Based upon our careful review of the record, we conclude that Hogg has not put forth any evidence indicating that the judge was biased towards her, Kaplan or his law firm, or that the perceptions of prejudice were objectively reasonable. We also conclude that the judge did not abuse his discretion in denying Hogg's recusal motion.

V

Finally, Hogg argues that "the sanctions imposed by the judge constituted an abuse of discretion." We disagree.

The Supreme Court instructs that "[i]f the discovery rules are to be effective, courts must be prepared to impose appropriate sanctions for violations of the rules." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512 (1995). Consequently, trial courts have inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that those sanctions are just and reasonable in the circumstances. Id. at 513; Calabrese v. Trenton State Coll., 162 N.J. Super. 145, 151-52 (App. Div. 1978), aff'd, 82 N.J. 321 (1980). This inherent power is expressly authorized by the Court Rules. See, e.g., R. 4:23-2; R. 4:23-4; R. 4:23-5. Moreover, "[t]his Court has upheld the power of a Superior Court judge to assess sanctions against attorneys, instead of their clients, for discovery infractions." In re Timofai Sanitation Co., 252 N.J. Super. 495, 505 (App. Div. 1991).

Here, the judge's award of sanctions was based on the fact that Hogg failed to comply with discovery demands and violated the court's discovery order. Given this discovery violations by Hogg and her counsel, it cannot be said that the judge abused his discretion in ordering Hogg's counsel to pay defendants' counsel fees and costs incurred on its motion to compel discovery. Therefore, we affirm the judge's order of sanctions.

VI

Summarizing, we reverse the dismissal of the retaliation claim against Aetna and remand it to the Law Division, Middlesex County for trial. We affirm the dismissal of all other claims, the imposition of sanctions, and the denial of the recusal motion.

 

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A-2119-04T2

December 19, 2006