iIn a significant decision, the New Jersey Appellate Division has recognized the “subordinate bias” theory, which provides a plaintiff an opportunity to prevail on a discrimination claim even in the absence of evidence that the decision maker harbored discriminatory bias. In Kwiatkowski v. Merrill Lynch and Theresa Wonder, 2008 WL 3875417 (App. Div. August 13, 2008), the Court held that an employer may be liable for discrimination irrespective of the decision maker’s intent, as long as the decision was influenced by a biased supervisor.
The Facts
Plaintiff Darren Kwiatkowski, a homosexual male, began his employment with defendant Merrill Lynch as a client service representative in January 2001. In this position, he was primarily responsible for answering incoming telephone inquiries from clients. Prior to September 2003, supervisors generally considered him to be an “exemplary employee.”
In September 2003, defendant Theresa Wonder became Kwiatkowski’s direct supervisor. According to Kwiatkowski, Wonder began creating a record in an effort to portray him as a poor performing employee. He alleged that, among other things, she reduced his duties and “frequently screamed at him and criticized his work.”
In December 2003, Wonder distributed holiday gifts to her staff. She gave Kwiatkowski a “Joke-A-Day” calendar. The calendar included crude and vulgar references to body parts and bodily functions, although Wonder contended that she was not aware of this fact when she gave it to him. Later in December, facing a high volumeof client telephone calls, Merrill Lynch issued a “Code Red,” requiring call center employees to sit at their work stations and answer calls instead of handling other responsibilities. Kwiatkowski asked Wonder for permission to deviate from the Code Red to retrieve client statements for a client he was already assisting. Wonder denied his request but authorized him to call the client to indicate that he would assist her the next morning.
Kwiatkowski alleged that he needed certain information before he could make this call. On his way to obtaining the information, he faxed a document to another client. After approximately twenty-five minutes, he resumed answering calls.
Wonder e-mailed Kwiatkowski asking why he had spent so much time on a matter that they had agreed he would address the next day. He responded with a brief explanation and added, out of frustration, “‘I apologize for again not being able to follow through correctly.’”
Wonder reported the incident to her supervisor, Sandra Givas, and they agreed that Kwiatkowski had been insubordinate. Givas did not know that Kwiatkowski was gay. She had limited interaction with him and her knowledge of his job performance was based on what Wonder and his previous supervisors had told her. Givas decided that Kwiatkowski should be terminated.
Kwiatkowski contended that, at around that time, Wonder called him a “‘stupid fag’” under her breath when passing him in the hall. He complained to a Human Resources representative that he was being harassed by his supervisor, but did not report the offensive comment or indicate that he was homosexual. He told the representative that he would attempt to resolve the problems with his supervisor himself.
A few days later, Givas and Wonder met with Kwiatkowski to terminate his employment. Givas indicated that she had made the decision based upon his insubordination.
The Trial Court
Kwiatkowski sued Merrill Lynch and Wonder for sexual orientation wrongful termination and harassment under the Law Against Discrimination N.J.S.A. § 10:5-1, et seq. (the “LAD”), and intentional infliction of emotional distress. The trial court entered summary judgment for defendants.
According to the court, Kwiatkowski could not maintain his wrongful discharge claim, because Givas did not know he was homosexual. In addition, the court dismissed his hostile work environment claim on the ground that the offensive calendar was not directed at homosexuals and the “stupid fag” comment, by itself, was not sufficiently severe or pervasive. Similarly, the court concluded that the comment was not sufficiently extreme and outrageous to support an intentional infliction of emotional distress claim. Kwiatkowski appealed.
The Appellate Division
On appeal, the Appellate Division discussed the “subordinate bias” theory, which recognizes that a biased low-level supervisor may taint the decision of an unbiased decision maker. The Appellate Division explained that New Jersey courts had not yet adopted the theory and federal courts have differed over its application.
The Court observed that the Third Circuit and others follow a lenient approach, attributing discriminatory intent to an employer where a biased employee has any influence over the decision. In contrast, the Fourth Circuit applies the theory only when the biased employee’s influence is so great that he or she is essentially principally responsible for the decision. The Appellate Division adopted the lenient approach and stated that the trial court “erred in failing to recognize the extent of Wonder’s influence on the actual decision made by Givas,” who “had no actual knowledge of plaintiff at all.”
Nonetheless, the Court observed that the question here was “close,” because “the facts upon which Givas relied to terminate plaintiff were really not in dispute.” The Court determined, however, that if “Wonder had a bias against gays, that may have colored her decision to report plaintiff to Givas in the first place.” The Court, therefore, reversed summary judgment on the wrongful termination claim.
The Court also reversed summary judgment on the hostile work environment claim. Although the Court acknowledged that Kwiatkowski failed to demonstrate that the calendar “would not have been given to him but for his homosexuality,” it concluded that the “stupid fag” comment alone was adequate to support the claim. The Court also reversed summary judgment on Kwiatkowski’s intentional infliction of emotional distress claim, disagreeing with the trial court’s finding that the “stupid fag” comment alone was “not so extreme and outrageous as to go beyond all bounds of decency in a civilized society.”
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