In the recent case of Arku-Nyadia v. Legal Sea Foods, LLC, in the United States District Court for the District of New Jersey, the federal trial court covering the entire State of New Jersey, Judge Susan Wigenton examined the standards governing motions for summary judgement in lawsuits alleging violation of the New Jersey Law Against Discrimination. In a summary judgment motion, a judge is asked to dismiss a party’s lawsuit because the moving party argues that even if the court took all the evidence in the best light favorable to the other party, it doesn’t create a question of fact for a jury and the moving party should prevail as a matter of law.
Background: The Arku-Nyadia v. Legal Sea Foods, LLC Case
Suzy Arku-Nyadia was a Black woman who was born in Ghana and immigrated to the United States in 1999, to pursue bachelor’s and master’s degrees. She worked for Legal Sea Foods, LLC (“LSF”) for fifteen years at multiple locations, beginning in Virginia in 2002 before transferring to Short Hills, New Jersey in 2004, and thereafter working in both New Jersey and New York. Her final position was at LSF’s Paramus location.
On September 1, 2015, Arku-Nyadia was demoted by the general manager in Paramus at the time, Joshua DeMura. In 2014 Paramus hired Louis Vetsas as assistant general manager, and promoted him to general manager when DeMura was transferred to Short Hills. Vestas made racially offensive statements to Arku-Nyadia including that “Black people like their fish `n chips,” “like their fried food,” “like to take advantage of the system,” and “lie,” and that there are “too many immigrants coming in” and “[a]ll immigrants have to go back to where they come from because they are taking our jobs.” It was unclear whether these were stray remarks or part of a repeated pattern. Arku-Nyadia alleged that she was treated differently, and more negatively, than similarly situated White workers, for instance by being ordered to leave early on slow shifts, regularly assigning her to serve Black guests, and either removing her from large tables or making her share the table with another server. Arku-Nyadia complained repeatedly about the remarks and differential treatment to her superiors and Vetsas himself.
Prior to her transfer to Paramus, Arku-Nyadia had only minor and infrequent discipline. However, once she was transferred to Paramus she began to receive more frequent and serious disciplinary write-ups, including allegedly using profanity, not charging her boyfriend for a bowl of soup, not charging a customer for a soda, and for serving too many customers on a day when the restaurant was short-staffed. She received four final warnings for these occurrences. However, Arku-Nyadia testified that she did not use profanity and that was common for the wait staff to not charge for minor items, and LSF admitted that she was only “doing the right thing” on the busy day. Arku-Nyadia was finally fired on June 6, 2017, for an incident in which a cook, who did not speak English, said that she asked for lobster ravioli for herself for free, but that she contended that she had only asked to substitute fish ravioli for linguini when the restaurant ran out of it.
Arku-Nyadia filed suit against her employer in the Superior Court of New Jersey in Essex County for violating the New Jersey Law Against Discrimination by treating her differently than other employees by wrongfully discharging her because of race, racial harassment, and retaliation because of her objections to violations of the Law Against Discrimination. After discovery, including the exchange of documents and depositions, LSF moved for summary judgment, asking the Court to dismiss her case.
Judge Wigenton denied the motion for summary judgment. She explained that for there to be disparate treatment, the employee must show that race was “a determinative factor;” it need not have been the only factor. Likewise, if the employer alleges that it had a legitimate business reason, the employee must produce evidence that this reason was merely a pretext for discrimination. This evidence may include circumstantial evidence. Judge Wigenton explained that Arku-Nyadia had done this by testimony that African-Americans were treated more negatively than White employees, and that Vetsas had a history of complaints of discrimination filed against him. Therefore, she had raised enough questions of fact for the claim to be submitted to a jury.
Judge Wigenton explained that a similar analysis is employed in retaliation claims under the New Jersey Law Against Discrimination. In this case Arku-Nyadia produced circumstantial evidence that retaliation for her complaints was a motivating factor through the timing of her discipline and termination, a pattern of antagonism by Vetsas and DiMura after a good disciplinary performance record before they became her superivisors.
To prove wrongful harassment, Arku-Nyadia was required to produce evidence that the harassment was severe or pervasive, would not have occurred but for the fact that she was Black, and that it was severe or pervasive enough for a reasonable similarly situated employee to believe that the workplace was made hostile or abusive. Judge Wigenton held that the actions above were sufficient evidence of a hostile work environment to allow Arku-Nyadia to go forward and present her claims to a jury at trial.
- Claims are not mutually exclusive. A person may be discriminated against because of their race, harassed because of their race, and be retaliated against for complaints against discrimination, and New Jersey employment law allows a person to sue for all these acts. There are two reasons for this. First, New Jersey law allows for “alternative pleadings,” which means that an employee may sue on multiple grounds, even if they are inconsistent or mutually exclusive. Second, an illegal motive has to be a determinative factor, not the sole factor.
- At the summary judgment stage, an employee does not need to present enough evidence to win her case, but merely enough to create a genuine question of material fact which should be submitted to a jury for resolution.
- Evidence is key. Documentation is everything. Both employees and employers should document, document, document.
- However, even where documentary evidence is key, circumstantial evidence such as timing, history, etc., is admissible. However, documentary evidence is still important.