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DICKERSON. v. N.J. DEPT. OF HUM. SERV.

July 10, 1991

REGINA DICKERSON, PLAINTIFF,
v.
STATE OF NEW JERSEY, DEPARTMENT OF HUMAN SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Garrett E. Brown, Jr., District Judge.

  OPINION AND ORDER

Plaintiff Regina Dickerson filed the instant action on May 30, 1989, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981 and 1983.*fn1 Plaintiff claims that defendant, the State of New Jersey Department of Human Services ("DHS"), created a racially hostile work environment which made plaintiff's continued employment intolerable. Plaintiff further claims that as a result of DHS' tolerance of this environment she was constructively discharged. Plaintiff seeks a declaratory judgment that the discriminatory practices complained of are unlawful and violative of Title VII of the Civil Rights Act of 1964 and of the Civil Rights Act of 1866. Plaintiff also seeks to permanently enjoin DHS, its agents, successors, employees, attorneys and those acting in concert with them from engaging in the unlawful discriminatory practices committed by DHS and their agents as set forth above. Finally, plaintiff seeks reinstatement, back pay, punitive damages, costs and attorney's fees.

On August 4, 1989 DHS filed a counterclaim asserting plaintiff's claim to be vexatious. DHS seeks repayment for unearned wages and a uniform allowance erroneously issued to plaintiff. DHS further seeks reasonable attorney's fees and costs for plaintiff's alleged vexatious claim.

In a Memorandum and Order filed on December 7, 1989, this Court granted DHS' motion to dismiss plaintiff's §§ 1981 and 1983 claims, holding that these claims were proscribed by the Eleventh Amendment. This matter was tried to the Court without a jury. I have reviewed the submissions of the parties and the tape transcripts of the witnesses' testimony at the trial. I have concluded that judgment must be entered for plaintiff for the reasons set forth herein. The following constitute my Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

This Court has jurisdiction over this controversy pursuant to 28 U.S.C. § 1331.

Plaintiff is an African American female who was employed by DHS as a provisional police officer from May 5, 1986 until her resignation effective July 28, 1988. From May 5, 1986 until sometime in April of 1988 plaintiff was employed at DHS' Marlboro Psychiatric Hospital ("Marlboro"). From April of 1988 until July 28, 1988, she was employed at DHS' Arthur Brisbane Child Treatment Center ("Brisbane"), a psychiatric facility for children. Plaintiff submitted a letter of resignation dated July 18, 1988, formally resigning on July 28, 1988. At the time of her resignation, she was earning approximately $23,000 per year, plus overtime. At this time, plaintiff had taken unearned leave which when converted to unearned wages amounted to $820.70. In addition, she was erroneously issued $910 as a uniform allowance on July 22, 1988.

DHS employed seventeen to eighteen police officers at Marlboro in varying capacities during plaintiff's tenure at DHS. At the time relevant to the instant action, the DHS police force was commanded by Chief of Police Raymond Brennan ("Brennan"). The DHS police force was staffed by eight to nine individuals acting as fully trained police officers and the rest acting as "provisional" police officers. The fully trained police officers were formally trained at a police academy and were permitted to carry a firearm, a nightstick and mace. The provisional police officers were not formally trained at the police academy and were not permitted to carry these weapons.*fn2

There were four black officers on the DHS police force during plaintiff's employment at DHS. The black officers were plaintiff, Sergeant Seaman ("Seaman"), Officer Hamlin and Officer Harry Willis ("Willis"). The racial incidents which occurred at DHS were primarily directed at Willis and plaintiff.

Willis was a DHS police officer stationed at Marlboro during the period 1980 to 1983. At that time, Willis was the president of the Policeman's Benevolent Association ("PBA") Local 113 at the DHS police Department. In 1983, Willis resigned to take a position as a federal police officer in Lakehurst, New Jersey. After one year at Lakehurst, Willis reapplied for a position with DHS and was eventually rehired in 1986. Willis was initially assigned to the Trenton Psychiatric Hospital ("Trenton"). While at Trenton, Willis filed several unspecified grievances and was eventually reassigned to Marlboro. When Willis returned to Marlboro, he once again acted as a local PBA representative. The racial incidents which form the basis of plaintiff's complaint began shortly after Willis' return to Marlboro.

On or about February 19, 1988, a racially hostile picture appeared on a wall in the men's restroom at Marlboro. The picture depicted a hooded Klansman with the letters KKK written across it. To the right side of the picture was written: "How [sic] the water Harry[.]" Id., Exhibit 2. At or about the same time of the restroom incident, Willis' DHS locker was defaced. The term "niger" [sic] and the same hooded Klansman that appeared on the restroom wall were scratched onto the surface of the locker. Id., Exhibit 3. Management at the Marlboro facility were advised of these matters on the same day that Willis discovered them. Willis filed a grievance with the Equal Employment Opportunity and Affirmative Action office at DHS ("Affirmative Action") concerning these matters on or about February 24, 1988. The picture in the restroom remained there for some four months until the wall was repainted. Plaintiff and other officers at Marlboro were exposed to the racial graffiti in the men's restroom. Plaintiff testified that she saw both the graffiti on the bathroom wall and on Willis' defaced locker.

On or about March 6, 1988, Willis was involved in an incident with Officer Hoy ("Hoy"), a white male police officer employed at Marlboro. Hoy and Willis had an argument about PBA cards. Apparently, as the PBA representative, Willis' duties included distributing PBA cards. The argument became somewhat heated and when Willis indicated he did not know where Hoy's cards were, Hoy stated "I don't give a f___ and I'am [sic] going to give you two f______ weeks to get my cards." Id., Exhibit 1. Hoy had to be physically restrained by several other Officers, including plaintiff. Hoy threatened Willis saying: "I'll kill that mother f______[.]" Id. Willis filed a complaint with DHS concerning the incident, dated March 6, 1988. Id. In recounting the incident at trial, Willis testified that Hoy said: "I'm going to kill your black ass," and "I'm going to kill you, nigger." While Willis' report contains no reference to these racial slurs, Seaman testified that Willis may have told him that Hoy said "I'll kill that nigger." Seaman also testified that it was probable that Willis told him that Hoy called Willis a "nigger" and Officer Clifford Olsen ("Olsen"), another white male Officer employed at Marlboro, on another occasion called Willis a "f______ nigger." Willis reported Olsen's comment to his supervisor, Lieutenant Kirn ("Kirn"), and submitted a report to DHS on the incident. The report, however, was never introduced into evidence. Plaintiff testified that she overheard Olsen making a reference to "those f______ niggers" sometime early in 1987. There was no evidence of any action taken by management as a result of this later incident.

On or about March 28, 1988, while Willis was in the locker room at Marlboro, Olsen remarked "f______ the niggers" as he entered the locker room. Willis apprised management at Marlboro of the incident the following day. On or about April 2, 1988, another incident occurred involving Willis' locker. A green substance was squirted through the key hole in the locker, soiling Willis' uniform and boots. Plaintiff's Exhibit 4. Plaintiff saw Willis' soiled belongings. Willis filed a grievance with Affirmative Action regarding both of these incidents on or about April 4, 1988. On or about this date, someone also urinated in Willis' locker. There is no indication as to whether a complaint or any kind of formal grievance was submitted as a result of this later incident; however, Willis did advise management of the situation.

Willis testified that he overheard a reference to "the nigger" in a conversation between Officers Sherwan and Fuzino, two white Officers at Marlboro. Willis further testified that incidents such as these were occurring "every other day" and that at some point, someone wrote "Puerto Rican rat" on a Puerto Rican officer's time sheet. Willis indicated that supervisory personnel were aware of all of these incidents. Plaintiff testified that she also saw the defaced time sheet.

Plaintiff became acquainted with Willis during her employment at Marlboro. After Willis returned to Marlboro, white friends of both plaintiff's and Willis' were criticized because of their friendships with black people. These non-black officers were referred to as "nigger lovers." Sergeant Lu Ann Aquila, now Lu Ann Aquila Tansey ("Aquila"), a white female officer who was one of the supervisors at Marlboro during plaintiff's tenure at DHS, testified that she was referred to by white officers at Marlboro as a "nigger lover," and that she heard racial slurs by officers at Marlboro once or twice per month during the period relevant to the instant action.

On or about April 1, 1988, plaintiff's locker was defaced and ransacked. The Klansman figure appeared on her locker with the letters KKK written across the bottom of the figure. Also written on the locker was the phrase "niger [sic] bitch we don't want you." Plaintiff's Exhibit 7. In addition, plaintiff's papers and reports were strewn about, and her hat and uniform were soiled with a green lotion of some kind. Plaintiff notified Willis of the incident. Willis in turn notified Aquila. Upon hearing of the incident Aquila stated: "This is terrible. Enough is enough."

On the Monday following the defacement of plaintiff's locker, plaintiff and Willis personally traveled to the DHS Affirmative Action office to advise them of the situation. Plaintiff already had a discrimination claim pending there.*fn3 Catherine Farley ("Farley"), the Assistant Commissioner of Affirmative Action, initiated an investigation of the defacement of plaintiff's locker. After plaintiff told Farley that she was in fear for her safety, Farley advised plaintiff that arrangements would be made to place plaintiff somewhere else while the investigation was conducted. Farley assigned Sharon Waters ("Waters"), an Equal Opportunity Officer at Affirmative Action, to conduct the investigation. Farley also instructed the police unit at DHS to initiate a criminal investigation.

Sometime shortly after meeting with Farley, plaintiff was telephoned by Kirn, who instructed plaintiff to begin working at Brisbane the following day. Plaintiff testified that Kirn was "very nasty" on the telephone and asked plaintiff why she reported the incidents of racial harassment to Affirmative Action without calling him.

Plaintiff began working at Brisbane on or about April 5, 1988 and continued to work there for some 4 months until her resignation on July 28, 1988. While at Brisbane, plaintiff was posted to an evening shift, 2 p.m. until 9 p.m., and was the only officer assigned to her shift. As a result, plaintiff had no other police officers to turn to. At Marlboro, fully trained police officers generally assisted the provisional police officers with their investigations. Furthermore, while at Brisbane, plaintiff was not given a vehicle or any radio communication equipment. Plaintiff was forced to use a telephone to call for backup. On one occasion, plaintiff received a report that the boyfriend of one of the patients had telephoned Brisbane and threatened to forcibly remove his girlfriend from the facility. Plaintiff called Marlboro for backup. Rather than sending backup, plaintiff was instructed to call the State Police and the Wall Township Police for assistance.

In the interim Aquila filed a report regarding the locker incident dated April 12, 1988. Defendant's Exhibit 4. Aquila labelled the incident as one of "criminal mischief" and concluded her report by stating: "INVESTIGATION TO CONTINUE." Id. Brennan admitted that criminal mischief is simple vandalism. Thus the investigation was not treated as one of racial harassment. Seaman was assigned to conduct the police department's investigation. In a report dated August 8, 1988, well after plaintiff had finally resigned, Seaman stated that he telephoned plaintiff's residence and was told by plaintiff's husband that plaintiff was "through with the matter and ha[d] no additional information to offer. . . ." Id. ...


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