A finding of probable cause was issued in the case of a Monmouth County health care billing company that allegedly fired a lesbian employee who complained after a supervisor made a comment about the employee using her “gaydar” to determine another person's sexual orientation during an office staff meeting.

Attorney General Gurbir S. Grewal and the Division on Civil Rights made the announcement May 9.

By issuing a finding of probable cause (FPC), the state determined that enough evidence exists to support a reasonable suspicion that New Jersey's Law Against Discrimination (LAD) was violated and to move forward with Brandy Rodriguez's complaint against Metropolitan Healthcare Billing of Eatontown.

The FPC also notes that, because the alleged “gaydar” comment to Rodriguez took place during an all-staff meeting in front of a new employee unaware of her sexual orientation, the remark not only outed Rodriguez to the new employee, but also “indicated to staff that the sexual orientation of a client would be a relevant and appropriate topic of inquiry and discussion in the workplace,” according to the DCR release.

“By using a reasonable employee standard, our courts focus on the conduct itself—not its effect upon the victim or the workplace,” said Rachel Wainer Apter, director of the Division on Civil Rights, citing the New Jersey Supreme Court's ruling in Cutler v. Dorn. “In other words, neither a victim's 'subjective response' to the harassment, nor the alleged harasser's 'subjective intent' is controlling as to whether a bias-based hostile work environment claim exists.

“And while a supervisor's use of a term that a subordinate might not find offensive in a private setting might weigh against its severity, using the term in a group meeting, where others might not be aware of complainant's sexual orientation, conveyed the message that any slang terms regarding sexual orientation were acceptable and outed complainant to a colleague,” Apter said in the release.

Regarding the alleged reprisal firing of Rodriguez, the FPC notes that Rodriguez was terminated by her direct supervisor, director of business operations Marissa Malmstrom, immediately after she complained to Malmstrom about making the “gaydar” remark at the staff meeting, and immediately after asking Malmstrom if she could speak directly with the owner of the company about it.

Attorney Edward A. Cienki, who has a practice in Hammonton, is representing Metropolitan Healthcare in the case.

“We deny the allegations and will vigorously defend against it,” Cienki said when reached by phone Friday.

“Probable cause” is defined as a “reasonable ground for suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious person to believe” that the LAD was violated, according to the DCR.

Apter said the sequence of events showed a causal connection that fell within LAD guidelines. The FPC states that to set forth a prima facie case of retaliation in violation of the LAD, Rodriguez must show that: (1) she engaged in a protected activity known to the employer; (2) the employer thereafter subjected her to an adverse action; and (3) there is a causal nexus between the protected activity and the retaliation.

“Complainant engaged in LAD-protected activity when she complained to Malmstrom that her use of the term 'gaydar' in a team meeting offended complainant,” Apter said. “She was fired later that same day. The proximity in time between her complaint to Malmstrom and the termination of her employment is sufficient to demonstrate a causal connection between the protected activity and the adverse action.”

In addition, Apter said Malmstrom's final decision to fire Rodriguez further “supports the causal nexus between Rodriguez's objection to Malmstrom's discriminatory actions and the final adverse action.”

According to the recitation of facts from the FPC, Metropolitan Health claimed Rodriguez was discharged Oct. 14, 2016, which was the day after the alleged controversial “gaydar” remark at the staff meeting.

To back her claims that Rodriguez's behavior created tension in the office, Malmstrom said on Feb. 2, 2016, she issued a “Record of Disciplinary Action” to Rodriguez for disrupting a team photo. On Oct. 4, 2016, 10 days before her termination, Rodriguez said she received what she perceived as a negative performance evaluation from Malmstrom over performance issues with her primary client, Pathfinder Labs LLC; for past disruptive behavior in the office; and for sometimes dressing inappropriately on casual Fridays, the FPC said.

Malmstrom later told DCR in response to the complaint that she felt Rodriguez at that point was no longer “coachable” because she refused to acknowledge that her behavior or performance contributed to the negative job review, the FPC said.

Rodriguez said in her complaint that her requests to discuss the poor job evaluation were rebuffed by Malmstrom more than once.

The DCR investigation found that Rodriguez received an “Above Average” rating on her April 15, 2016, performance review, six months earlier, and that Malmstrom did not include any substantive criticisms of her work performance in that review

Rodriguez, according to the document, had been employed at Metropolitan Health for two and a half years as an account representative and stated in her complaint that she received positive job performance reviews prior to her termination from the company—where she handled billing, collections and customer service.

Rodriguez also claims that her colleagues never complained about her making her sexual orientation known to them in the office, or about how she dressed, prior to her being fired.

She claims her termination resulted directly from what occurred at the Oct. 13, 2016, meeting and the actions she undertook that same day.

That day, Metropolitan held a team meeting with the firm's entire staff—including a new employee who was present at the meeting.

In her complaint, Rodriguez said Malmstrom said to the group, “Just send Brandy over there to use her gaydar” to determine whether or not a new client was a lesbian.

Rodriguez said she was upset and embarrassed by the comment, and immediately told Malmstrom as much in an email sent to her that day. In the email, Rodriguez said the “gaydar” remark was “unprofessional” and made her feel “uncomfortable.”

Rodriguez also indicated to Malmstrom that she preferred to inform new employees of her sexual orientation on her own terms, and she provided DCR a copy of the email as part of her complaint, the FPC said.

During a face-to-face meeting that same Oct. 13 evening, Malmstrom—whose sister is the human resources coordinator at Metropolitan—started the discussion by telling her that she looked and sounded unhappy with her job, according to Rodriguez's complaint.

Malmstrom then explained to Rodriguez that she felt it was OK to joke about Rodriguez's “gaydar” at the meeting because she'd overheard Rodriguez herself joking about her sexuality, her using the term “gaydar” in the workplace, and how she often boasted about the accuracy of her “gaydar,” according Rodriguez's complaint.

At that point, Rodriguez said she asked Malmstrom if she could speak directly with the company owner about the incident.

Malmstrom allegedly responded to the inquiry by saying, “I will do you one better, you are terminated effective immediately. Get your things and get out of here,” according to the complaint.

Malmstrom told DCR investigators that she showed Rodriguez's Oct. 14 email to her sister, Alyse Malmstrom, the director of HR at Metropolitan Healthcare, and that Alyse Malmstrom was surprised by Rodriguez's reaction to the “gaydar” remark. Alyse Malmstrom never met with Rodriguez to discuss the office meeting incident, the FPC said.

Malmstrom also acknowledged to DCR that she had asked company owner Dr. Rajiv Uppal if he wanted to discuss the “gaydar” incident with Rodriguez, and that he declined. Malmstrom said she was instructed by Uppal to not bother him with personnel issues of that kind.

“Employers are responsible for creating and maintaining a work environment where all employees are treated with equality, dignity and respect, regardless of their membership in a protected class,” Grewal said in the release. “It is not acceptable for employers to retaliate against workers who invoke their legal rights and report discriminatory conduct.”

“And because the Human Resources Coordinator was the supervisor's sister, complainant had nowhere else to report the incident,” Apter added. She said employers need to be aware of what constitutes discrimination and retaliation under the LAD and make sure they have mechanisms in place that ensure that the individual accused of discriminatory conduct is not the person charged with investigating her or his own conduct.

“Where, as here, the investigation reveals evidence sufficient to prove the elements of the prima facie case, the employer must proffer a legitimate, non-discriminatory reason for discharging the employee,” Apter said. “In such a situation, it is appropriate for this matter to proceed to a hearing, where a trier of fact will determine whether and to what extent the employee's LAD-protected activity factored into respondent's decision to terminate complainant's employment.”