Decapua v. Bell Atlantic-New Jersey, Inc.

712 A.2d 725, 313 N.J. Super. 110, 1998 N.J. Super. LEXIS 262, 73 Empl. Prac. Dec. (CCH) 45,431, 77 Fair Empl. Prac. Cas. (BNA) 277
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 21, 1998
StatusPublished
Cited by6 cases

This text of 712 A.2d 725 (Decapua v. Bell Atlantic-New Jersey, Inc.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Decapua v. Bell Atlantic-New Jersey, Inc., 712 A.2d 725, 313 N.J. Super. 110, 1998 N.J. Super. LEXIS 262, 73 Empl. Prac. Dec. (CCH) 45,431, 77 Fair Empl. Prac. Cas. (BNA) 277 (N.J. Ct. App. 1998).

Opinion

PAYNE, J.S.C.

This is a reverse discrimination, hostile work environment action instituted pursuant to N.J.S.A. 10:5-12.1 At issue is the nature of the proofs that plaintiff must offer in order to establish a prima facie ease. In his suit, plaintiff Samuel DeCapua, a white male of Italian descent, seeks damages from his employer, Bell Atlantic — New Jersey, Inc., under the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 to -42, as the result of alleged racially-based harassment by plaintiffs black supervisor, Gary Farrow, occurring in the period from February to December, 1995. This harassment allegedly took the form of unfairly [113]*113imposed work rules, excessive discipline, threats of discipline, heightened supervisory surveillance, humiliation before eoworkers and customers, and the use of racially-charged language. Plaintiff also alleges that his black co-workers were not equally or similarly subjected to discipline or threats of discipline for like infractions, or were subjected to lesser disciplinary sanctions. Additionally, plaintiff alleges that his black co-workers were not subjected to equal or similar supervisory surveillance. Plaintiff further alleges that Farrow expressly linked his antagonism toward DeCapua with plaintiffs race in remarks he made directly to plaintiff and to one of plaintiffs black co-workers, Herman Jackson.

Defendant Bell Atlantic has sought summary judgment on plaintiffs LAD claim. It argues that, because plaintiff is a member of a white racial majority, rather than a member of a racial minority, and his hostile work environment claim is founded on conduct that is not facially race-based, plaintiff must meet a heightened standard to establish his prima facie case, and he has failed to do so. Under this heightened standard, Bell Atlantic argues, plaintiff must show, as variously phrased, that Bell Atlantic engages in “broad-based or systematic racism against Caucasians,” or that “widespread anti-Caucasian discrimination has occurred at Bell Atlantic,” or that Bell Atlantic has engaged in a “pattern of discrimination” against Caucasians. Bell Atlantic argues further that the standard that it has set forth is mandated by the New Jersey Supreme Court’s decision in Erickson v. Marsh & McLennan, 117 N.J. 539, 569 A.2d 793 (1990), as followed in dictum in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 605-06, 626 A.2d 445 (1993).

In Erickson, the Court held, in a case alleging gender-based reverse employment discrimination as a basis for unlawful discharge, that:

plaintiff “must substantiate ... that the ‘background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority.’ ” Erickson [v. Marsh & McLennan Co., Inc.], 227 NJ.Super. /78], 87 [545 A.2d 812 (App.Div.1988) ] (citing Murray v. Thistledown Racing Club Inc., 770 F.2d 63, 67 (6th Cir.1985)).
[114]*114[Erickson, supra, 117 N.J. at 551, 569 A.2d 793.]

This court finds that Bell Atlantic has misconstrued the elements of the test set forth in Erickson; particularly, in a case such as this that alleges a hostile work environment based upon reverse discrimination, not wrongful discharge or other allegedly wrongful job action. Although it agrees that Erickson’s heightened standard is applicable to this reverse discrimination claim against an employer, it finds that the standard can be met by evidence that does not necessarily include proof of systemic discrimination by the employer against the majority. The basis for this court’s determination follows.

A. A requirement of evidence of systemic discrimination is inconsistent with the nature of hostile work environment claims and subverts the remedial purpose of such actions.

In a test established in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973)2 and adopted in New Jersey, the Unites States Supreme Court held that to establish a prima facie circumstantial ease of discrimination under federal law, a plaintiff must demonstrate that he/she (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection, the position remained open and the employer continued to seek applicants with qualifications comparable to plaintiffs. Ibid. See also, Peper v. Princeton University Board of Trustees, 77 N.J. 55, 82-83, 389 A.2d 465 (1978); Goodman v. London Metals Exchange Inc., 86 N.J. 19, 31, 429 A.2d 341 (1981); Andersen v. Exxon Co., 89 N.J. 483, 492, 446 A.2d 486 (1982); Clowes v. Terminix International, Inc., 109 N.J. 575, 595-96, 538 A.2d 794 (1988).

In Erickson, a reverse discrimination claim of wrongful termination, the Court replaced the first prong of the McDonnell [115]*115Douglas test (that plaintiff belongs to a protected class) with the previously-stated requirement that the plaintiff show “that the background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority.” Erickson, supra, 117 N.J. at 551, 569 A.2d 793. In doing so, the Court agreed with those federal courts that reasoned that the use of the simple, self-evident, first prong of McDonnell Douglas is appropriate only for claims by minority plaintiffs, because anti-discrimination laws were intended to address “ ‘a legacy of racism so entrenched that we presume acts, otherwise unexplained, embody its effect.’ ” Ibid. (quoting Murray, supra, 770 F.2d at 67). That presumption, the Erickson Court held, was inapplicable to the plaintiff before the Court, a white male, because he was a member of a class that has “not historically been victimized by discrimination.” Id. at 552, 569 A.2d 793.

The rationale of Erickson appears in the New Jersey Supreme Court’s later decision in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 605-06, 626 A.2d 445 (1993), a claim by a female employee that sex harassment had created a hostile work environment. In that case, the Court held that in order to state a claim, a female plaintiff “must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment.” Id. at 603, 626 A.2d 445. Addressing the first prong (that plaintiff suffered discrimination because of her sex), the Court noted that not all sexual harassment is sex-based on its face. Id. at 605, 626 A.2d 445.

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712 A.2d 725, 313 N.J. Super. 110, 1998 N.J. Super. LEXIS 262, 73 Empl. Prac. Dec. (CCH) 45,431, 77 Fair Empl. Prac. Cas. (BNA) 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decapua-v-bell-atlantic-new-jersey-inc-njsuperctappdiv-1998.