Opinion
This matter is before the Court on Defendants’ Motion for Summary Judgment
I. Factual and Procedural Background
Julia Wesley (herein: “Plaintiff’) emigrated from Liberia to America in 1997 and speaks with a thick Liberian accent. (’Wesley Dep., 12:8.) Plaintiff received her degree as a Licensed Practical Nurse from Sarah Health Academy in May of 2009.-{Id. at 22:24-23:3.) Her sister, Mama Za-bay, who was also born in Liberia and speaks with an accent, is employed at The Palace Rehabilitation and Care Center, L.L.C. (“Palace”), and encouraged Plaintiff to apply for employment with Palace. {Wesley Dep., 24:14-24, 25:3 — 4.) On or about August 22, 2011, Plaintiff completed an application for employment with Palace, and shortly thereafter interviewed with Ana Carian, Director of Nursing (collectively: “Defendants”). {Wesley Dep., 30:5-25). Ms. Carian is Asian.
Plaintiffs orientation with Palace on August 24, 2011 began her 90 day probationary employment term. {Wesley Dep., 54:22-24.) Plaintiff was assigned to work the 11:00 p.m. to 7:00 a.m. shift at Palace on September 8, 2011. {Id. at 59:17-23.) Plaintiffs shift assignment was located in the “C Wing” of Palace and included caring for 50 patients, 19 to 22 of which were of Asian descent. {Id. at 67:9-14, 66:23-67:7.) Palace utilized an on site translator during the 7:00 a.m. to 11:00 p.m. shift, but no translator was on site during Plaintiffs 11:00 p.m. to 7:00 a.m. shift. {Id. at 71:21-72:8.) Plaintiff testifies that despite not having a translator on site during her shift, none of the residents ever complained to her that they could not understand her speech. {Id. at 111:12-18, 114:9-11.)
Defendant claims that Plaintiffs job performance was inadequate because she was often tardy and was inattentive to the needs of the patients. In fact, Plaintiff was tardy to her August 25, 2011 classroom training. (Wesley Dep., 56:24-25, 57:1-9.) Defendants accuse Plaintiff of being tardy six times in September, six times in October, and eight times in November. (Def. Reply Brief, 1-2.) Defendants also allege that Plaintiff had difficulty completing required documentation. (Wesley Dep., 70:25; 71:1-2.) Plaintiff was responsible for completing a 24 hour report at the end of her shift and she admits that she often failed to complete the report. {Id.) Additionally, Plaintiff admits that she struggled to properly document the administration of narcotics. (Romero Decl., Exhibit L; Wesley Dep., 73-75.)
Towards the end of Plaintiffs probationary period, Ms. Jackson, Assistant Director of Nursing, and Ms. Carian met to discuss Plaintiffs future with Palace. {Jackson Dep., 10:1-10; Carian Dep., 42:20-24, 43.) Ms. Jackson testifies that although she recommended Plaintiffs termination, Ms. Carian suggested that they extend Plaintiffs probationary period. {Carian Dep., 39:22-24, 40:1-3; Jackson
On December 16, 2011, Plaintiff met with Ms. Jackson. The parties dispute the nature of this meeting. Plaintiff claims that she was told that she would no longer be working the 11:00 p.m. to 7:00 a.m. shift and was terminated. (Wesley Dep., 84:1-2, 10.) Defendants claim that Plaintiff was removed from this shift because of her perpetual tardiness; Defendants hoped that a shift change would result in a reduction of Plaintiffs tardiness. (Cañan Dep., 55:17-22, Jackson Dep., 43:24, 44:1-5, 46:17-19.) Ms. Carian testifies that, despite being offered another shift, Plaintiff never contacted the staffing coordinator to choose another shift. (Carian Dep., 56:4-24.) Plaintiff, however, alleges that at the December 16 meeting Ms. Jackson told her she was terminated and that Palace intended to replace her with an Asian employee. Ms. Carian further explained that the residents would more easily understand and relate to an employee of Asian descent. (Wesley Dep., 88:25-89:4.)
Plaintiff was replaced by two nurses of Asian descent. {Id. at 92:10-93:12, 66:9-19.) Defendants allege that Plaintiff was never terminated; rather, she simply stopped reporting to work.
II. Jurisdiction
The Court has jurisdiction over Plaintiffs 42 U.S.C. § 1981 claim pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the New Jersey Law Against Discrimination claim under 28 U.S.C. § 1367.
III. Standards of Review A. Summary Judgment Standard
A motion for summary judgment will be granted if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Pearson v. Component Tech. Corp.,
An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc.,
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp.,
In deciding the merits of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson,
B. 42 U.S.C. § 1981 and NJLAD
1. 42 U.S.C. § 1981 Generally
Congress passed 42 U.S.C § 1981 as part of the Civil Rights Act of 1866 to enforce the rights guaranteed by the Thirteenth and Fourteenth Amendments. See St. Francis College v. Al-Khazraji
2. Scope of “Racial Discrimination” under 42 U.S.C. § 1981
While the definition of “racial discrimination” explained by the Court in St. Francis College is expansive, there are limits to the types of discrimination that qualify for redress pursuant to § 1981. The majority opinion in St. Francis College fails to resolve the question of wheth
In this regard, the St. Francis College concurrence attempts to maintain consistency with jurisprudence in other areas of the law and, as a result, reads the majority opinion as excluding “only discrimination based on birthplace alone” from the protections of § 1981. Id. at 614,
Multiple circuits have ruled that a national origin discrimination claim is not cognizable under § 1981.
Considering the limitations of § 1981, whether Plaintiff can prevail on her federal claims depends on whether the alleged adverse employment action was motivated by discrimination based on “race, ancestry,
3. Discrimination based on an individual's accent under 42 U.S.C. § 1981
Discrimination based upon a person’s accent may constitute national origin discrimination and/or racial discrimination. To determine the nature of the discriminatory animus when a plaintiffs accent is at issue, a court must consider the context of the employment action or comments. See Chandoke,
4. NJLAD
The NJLAD prohibits discrimination “because of race, creed, color, national origin, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, disability or nationality.” N.J.S.A. § 10:5-3 (emphasis added); N.J.S.A. § 10:5-12(a). Courts employ the Title VII evidentiary framework and standard of review when analyzing claims under the NJLAD. Iadimarco v. Runyon,
C. Discrimination Standards of Review
Claims brought under § 1981 and the NJLAD are analyzed using the same evidentiary schemes. See Grigoletti v. Ortho Pharm. Corp.,
1. Direct Evidence of Discrimination
Direct evidence of discrimination is evidence that allows a jury to find that the decision makers placed substantial reliance on a plaintiffs inclusion in a protected class in reaching their decision. Glanzman v. Metro. Mgmt. Corp,
Under the Price Waterhouse theory of direct discrimination, once Plaintiff shows that race was a “substantial” factor in motivating Palace’s adverse employment action against her, the burden of persuasion on the issue of causation shifts to Palace. Id. at 338. To overcome this burden, Palace employer must prove that it would have terminated Plaintiff even if he had not considered her race. Id. (citing Price Waterhouse v. Hopkins,
2. Indirect Evidence of Discrimination
Plaintiff may also prove her claim with indirect evidence of discrimination under the “burden shifting” framework provided by the Supreme Court in McDonnell Douglas v. Green,
a. Prima Facie Case
Although the analysis of Plaintiffs claims under the NJLAD and § 1981 is the same and overlaps, the elements of a prima facie case of discrimination under the NJLAD and § 1981 differs. Typically, a prima facie case of unlawful discrimination in the workplace under the NJLAD is established when a plaintiff demonstrates by a preponderance of the evidence that he or she (1) belongs to a protected class; (2) was performing a job at a level that met the employer’s legitimate expectations; (3) suffered an adverse employment action; and (4) others not within the protected class did not suffer similar adverse employment actions. Zive v. Stanley Roberts, Inc.,
The existence of a prima facie case of race-based employment discrimination “is a question of law that must be
A plaintiffs qualification for the position she held is judged by objective standards. See Red v. Potter,
After demonstrating that she is qualified for the job, a plaintiff must show she suffered an adverse employment action. See McDonnell Douglas,
Lastly, a prima facie case must show a causal connection between Plaintiffs protected status and the adverse employment action through the use of direct or circumstantial evidence. See Trujillo-Cummings v. Public Serv. Co.,
The causal link between protected class and an adverse employment action must be considered with a careful eye to the specific facts and circumstances of a particular case. See Farrell,
b. Legitimate Nortr-Discriminatory Reason and Pretext
To establish pretext, Plaintiff is not required to show that Defendants’ decision was unwise or imprudent. See
IY. Analysis
A. Scope of § 1981 and NJLAD
Defendants argue that Plaintiff does not allege a cognizable claim under 42 U.S.C. § 1981 and the NJLAD because she has not alleged facts that support a claim for racial discrimination. The gravamen of Defendants’ argument is that Plaintiffs allegations establish, at best, potential discrimination based on national origin discrimination, which falls outside the scope of § 1981. This Court finds, drawing all inferences in favor of the Plaintiff, that a reasonable fact finder could determine that the Plaintiff has sufficiently alleged racial discrimination. See Chandoke,
Plaintiff testifies that during the December 16, 2011 meeting she was terminated so that Defendants could replace her with an Asian nurse who would “better relate” to the Asian patients. (Wesley Dep., 84:13-84-24.) Additionally, Plaintiff claims that Ms. Jackson told her that Palace needed a nurse that the residents could understand at night, since there is no translator on duty during the night shift. (Id. at 104:7-22.) Plaintiff demonstrates that the two women who replaced her are both of Asian decent. (Id. at 92:10-93:12, 66:9-19.) The context of Defendants’ alleged statements regarding Plaintiffs communications skills — that they told her they wanted a nurse of a different race and then replaced her with nurses from that race — permits an inference that the statements were motivated by racial, rather than national origin animus. As a result, a reasonable fact finder could conclude that Plaintiff was terminated on the bases of her race and in favor of a member of a preferred race in violation of § 1981 and the NJLAD. For these reasons, summary judgment is denied as a matter of law on Plaintiffs claim for racial discrimination under § 1981 and the NJLAD.
Defendants are entitled to summary judgment as a matter of law on Plaintiffs claim of “national origin” discrimination under § 1981. If the jury concludes that Plaintiffs termination because of her accent was the result of “national origin” discrimination, rather than discrimination based on “race, ancestry, and ethnic characteristics,” then Plaintiff is without redress under § 1981. The Supreme Court in St. Francis College held that § 1981 provides redress for discrimination based on “race, ancestry, or ethnic characteristics.” See St. Francis College,
However, Plaintiff pleads a cognizable claim of national origin discrimination under the New Jersey Law Against Discrimination. National origin is a protected status under the NJLAD. See N.J.S.A. § 10:5-12(a). Summary judgment is denied as a matter of law as to Plaintiffs claim of national origin discrimination under the NJLAD.
Having determined that Plaintiffs claims of racial discrimination under § 1981 and racial and national origin discrimination under the NJLAD are cognizable, the Court will analyze whether a genuine issue of material fact exists precluding summary judgment.
B. Analysis of Direct Evidence of Discrimination
There are genuine issues of material fact precluding summary on Plaintiffs claim of discrimination under Price Water-house. Plaintiff testifies that she was told that her removal from her shift was accomplished so that Palace could hire someone of Asian descent, whom Palace believed the patients could better “relate” to and understand. (Wesley Dep., 84:13-84-24, 104:7-22.) As required by Fakete, these statements were allegedly made by an individual involved in the decision making process, precisely when the employment decision was explained to Plaintiff. See Fakete,
Defendants detail Plaintiffs documented, but not formally sanctioned by written warning, tardiness. Plaintiff admits to being tardy and agrees that she did not always complete required end-of-shift paperwork. Finally, Plaintiff was still a probationary employee during the entire time of her employment with Palace. Defendants meet their burden of demonstrating that the alleged employment action would have occurred despite Plaintiffs allegation of racial discrimination.
Although these reasons are compelling, the Court’s function on summary judgment is not to weigh the evidence. Anderson,
C. Indirect Evidence of Discrimination
1. Elements of the Prima Facie Case
Plaintiff demonstrates a prima facie case of discrimination pursuant McDonnell Douglas under § 1981 and the NJLAD. A plaintiffs burden to show a prima facie case of indirect employment discrimination is not onerous. See Sempier v. Higgins,
Although Plaintiff is a member of a protected class, Defendants first argue that she cannot establish a prima facie case of discrimination because her tardiness and documentation issues rendered her unqualified for the position she held. There is sufficient evidence in the record that demonstrates that Plaintiff was a Licensed Practical Nurse and was objectively qualified for the position. {See Wesley Dep., 22:24-23:3.) Moreover, Defendants’ argument does not address the qualifications necessary to determine the “otherwise qualified” element of the prima facie case. See Red,
Defendants next argue that Plaintiff did not suffer an adverse employment action because she was not terminated and because removing Plaintiff from Plaintiffs preferred shift is not an adverse action. Ms. Carian states that she told Ms. Wesley to contact Palace’s scheduling coordinator to ask for a different shift assignment. {Carian Dep., 56:4-24.) Plaintiff testifies-differently, alleging that Ms. Jackson told her she was terminated during the December 16 meeting. (Wesley Dep., 88:25-89:4.) Defendants argue that Plaintiffs position is only supported by self-serving testimony. But, a party’s sworn testimony that reflects first-hand knowledge, even if self-serving, can create a genuine issue of material fact. Id. The Court finds that there is genuine is of material fact as to whether Plaintiff was terminated. A determination of whether Plaintiff was terminated falls on a credibility determination that precludes summary judgment. See Hill v. City of Scranton,
Moreover, summary judgment is not warranted on Defendants' "shift change" argument because there are genuine issues of material fact related to whether the shift change constituted a change in her terms, conditions, and privileges of employment. See Robinson4
Finally, Defendants argue that Plaintiffs status in a protected class is not causally connected to the alleged adverse employment action. Plaintiff may establish the causal connection through the use of direct and circumstantial evidence to raise a genuine issue of material fact. See Trujillo-Cummings,
Plaintiff is not required at summary judgment to produce compelling evidence or conclusive proof that the adverse employment decision was motivated by discrimination. See Sempier,
2. Legitimate Business Reason and Pretext
As discussed under the analysis of direct discrimination, Defendants satisfy their burden of coming forth with a legitimate business reason for Plaintiffs alleged termination and shift change. Plaintiffs shift change was allegedly an attempt to cure Plaintiffs perpetual tardiness and poor documentation skills. (Carian Dep., 55:17-22, Jackson Dep., 43:24, 44:1-5, 46:17-19.) By providing this testimony, Defendants meet their burden of production and establish a legitimate business reason. See Burdine,
To establish pretext, Plaintiff again relies on her own testimony that the Defendants told her that she was being terminated because of Defendants’ preference for an Asian nurse and her eventual replacement by two Asian nurses. (Wesley Dep., 88:25-89:4.) In addition, Plaintiff was never formally disciplined for her tardiness even though Defendants’ Employee Discipline Policy requires written warnings prior to action. (See Discipline Policy, PI. Ex. F; see also Carian Dep., PL, Ex. E. 30:8-19; 21:5-22) The only written warning that Plaintiff received was related to • her failure to document the administration of narcotics to a patient. (See PL Ex. G and Ex. J, ¶¶ 4-5.) In addition, Plaintiff
Given that the standard on pretext is not high, a reasonable fact finder could find that this circumstantial evidence, combined with Plaintiffs testimony, contradicts Defendants’ account and shows the true reason for the dismissal was impermissible discrimination. See Sempier,
3. Affirmative Defense of Bona Fide Occupational Qualification
Defendants argue that even if a fact finder believes Plaintiffs account, Defendants may not be liable because effective communication skills are reasonably necessary to the ordinary operation of Palace. In limited circumstances, effective communication skills are a legitimate reason to discriminate. See Le v. City of Wilmington,
Defendants are not entitled to summary judgment on this argument. The evidence in the record suggests that Plaintiffs shift was modified in order to correct tardiness; evidence that Plaintiff was removed from her shift because of her ineffective communication with the patients is disputed. See Def. SOF, ¶ 46; Carian Dep., 39:22-24; 40:1-3; 43:16-18: 44:21-24; 45:1-4; Jackson Dep., 27:15-22; 29-28; see also Def. SOF, ¶ 70, Romero Decl. Exs. F and H (stating that Plaintiffs repeated tardiness in December 2011 underscored the decision to remove her from her present shift). The record does not contain any written complaints about Plaintiffs use of the English language. See Garcia,
Defendants’ Motion for Summary Judgment is granted in part and denied in part. A genuine issue of material fact exists as to whether Plaintiff was fired due to her national origin, or due to her race, ancestry, or ethnic characteristics. Summary judgment is granted as to Plaintiffs claims for national origin discrimination under 42 U.S.C. § 1981. Summary judgment is denied as to Plaintiffs claim of racial discrimination under 42 U.S.C. § 1981 and the NJLAD and national origin discrimination under the NJLAD.
An appropriate Order shall issue.
Notes
. There is a dispute of fact related to whether Ms. Wesley was officially terminated. Both parties offer different versions of the events that took place during a December 16, 2011 meeting, during which Plaintiff claims she was terminated. Defendants claim that Ms. Wesley was not terminated. (Carian Dep., 57:11-17; Jackson Dep. 11:2-10, 30:10-19). They claim that Plaintiff simply stopped reporting to work and never contacted scheduling to secure a different shift. In general terms, Defendants claim that Plaintiff abandoned her employment. Plaintiff claims she was fired.
. The statute states: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and to no other.” 42 U.S.C. § 1981.
. See El-Zabet v. Nissan North America, Inc.,
. Chandoke provides the example of phrases that directly relate to national origin such as: "[s]tupid Foreigner, you come over here and take over the country,” “[s]tmky foreigner,” and ”[g]o back where you came from.” Id. at 20.
. The court in Chandoke provides the hypothetical example of a Jamaican man with a distinct think Jamaican accent, interviewing for a job on the phone. Recognizing that the accent indicated the applicant was from Jamaica, and knowing that most Jamaicans are black, would support an argument that the employer using the accent in order to discriminate based on race. Chandoke,
. Plaintiff’s status in a protected class is not contested.