The opinion of the court was delivered by: Garrett E. Brown, Jr., District Judge.
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.
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
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
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
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'
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
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
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
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
plaintiff was "through with the matter and ha[d] no additional
information to offer. . . ." Id. ...