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IN RE KING

November 17, 1995

Re: Richard King
v.
The Port Authority of New York and New Jersey



The opinion of the court was delivered by: POLITAN

 ORIGINAL ON FILE WITH CLERK OF THE COURT

 Dear Counsel:

 This matter is presently before the Court on the motion of defendant Port Authority of New York and New Jersey ("Port Authority") to dismiss numerous Counts and the claim for punitive damages asserted in the Complaint of plaintiff Richard King pursuant to Fed.R.Civ.P. 12(b)(6), and for lack of subject matter jurisdiction based on the Tort Claims Act. I heard oral argument on October 10, 1995, and reserved decision. For the reasons stated herein, defendant's motion is GRANTED in part, and DENIED in part.1

 STATEMENT OF FACTS

 Plaintiff is an African-American male employed in the Engineering Department of the Construction Division of the Port Authority. Plaintiff was hired in January of 1988 as an electrical inspector for Newark International Airport. Plaintiff asserts that he was awarded a disproportionate merit increase in October of 1988 in retaliation for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"). After a finding of probable cause by the EEOC, on November 21, 1990, plaintiff was given a raise in accordance with a Conciliation Agreement.

 Furthermore, plaintiff alleges that he was denied a promotion to the position of assistant resident engineer at LaGuardia on the basis of race. Rather, on April 15, 1992, Dan Hartigan, a caucasian male, was promoted to the position. Plaintiff asserts that he was clearly better qualified for the position since he holds a New York State license and has attained a Master's Degree. Plaintiff, however, only notified his supervisor of his Master's Degree in June of 1992. Hartigan was subsequently made permanent assistant resident engineer.

 In September of 1992, plaintiff wrote several letters to his supervisor and the executive director regarding the lack of African-American employees in middle and upper management. Plaintiff's supervisor, Jack Erhard, allegedly advised plaintiff that his EEOC complaint would adversely affect his chance of being promoted. In the same month, two more caucasian male employees, allegedly less qualified than plaintiff, were promoted to assistant resident engineer. Again, on November 18, 1992, plaintiff filed a complaint of race discrimination with the EEOC. On March 3, 1993, an African-American male was hired from outside the company to the position of assistant resident engineer.

 Plaintiff asserts that he received a low performance rating in September of 1993, in retaliation for his earlier complaints and because of his race. Another finding of probable cause was made by the EEOC. In July and December of 1993, plaintiff was allegedly threatened and told to "watch his back" because his supervisors would be "watching him." Finally, plaintiff states that on December 30, 1993, he again received a disproportionately low merit increase. Subsequently, plaintiff requested an explanation for said salary increase, but received no response.

 Plaintiff filed a Complaint in this Court February 7, 1994, alleging that the Port Authority discriminated against him on the basis of race and in retaliation for his filing complaints with the EEOC. On March 4, 1994, plaintiff was transferred to the Port Authority Trans-Hudson Railroad ("PATH"), which plaintiff alleges was in retaliation for his filing this suit. On March 21, 1994, the First Amended Complaint was filed to include this alleged retaliation.

 A Second Amended Complaint was filed on May 13, 1994, to include as evidence of retaliation a confrontation between plaintiff and his supervisor, Ronald Gumann. Subsequently, plaintiff attended numerous meetings with his supervisors in relation to his job performance and work load. During his last performance evaluation, plaintiff stated that he was questioned about his ethnic origin and native language. Thereafter, the Third and present Amended Complaint was filed on October 3, 1995. The instant motion followed.

 DISCUSSION

 I. Standard of Review

 When a court decides a 12(b)(6) motion, all allegations in the complaint must be taken as true and viewed in the light most favorable to the non-movant. Gomez v. Toledo, 446 U.S. 635, 636 n.3, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). When, after viewing the allegations in the complaint in this beneficent light, it appears beyond doubt that no relief could be granted under any set of facts which could prove consistent with the allegations, a court shall dismiss a complaint for failure to state a ...


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