The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge
This employment discrimination case is before the court on defendant's motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56(b). The principal issues presented are whether plaintiff, Keith Johnson, a black male who was terminated from his position as a sergeant with defendant, City of Camden Police Department ("CCPD"), for conduct unbecoming a police officer, has come forward with sufficient evidence that he was treated less favorably than similarly situated white officers to make out a prima facie case of disparate treatment, and whether he has come forward with sufficient evidence to suggest to a reasonable factfinder that the proffered reasons for his termination were pretextual. In defining these issues, the court also examines the effect of the parties' Joint Final Pretrial Order in narrowing the issues in dispute, under Federal Rule of Civil Procedure 16(e). For the reasons set forth below, the court grants defendant's motion and dismisses plaintiff's Complaint.
On August 23, 1995, plaintiff, CCPD Sergeant Keith Johnson, was involved in an altercation with officers of the Camden County Sheriff's Department at the Camden County Hall of Justice in connection with the detention of his brother, Kevin Johnson, for whom an arrest warrant had been issued for alleged failure to pay child support.
In a Preliminary Notice of Disciplinary Action dated September 19, 1995, Johnson was charged with conduct unbecoming a police officer for his role in the August 23, 1995 incident. In a second Preliminary Notice of Disciplinary Action dated October 7, 1995, Johnson was again charged with conduct unbecoming a police officer arising out of his reaction to the service of the first Preliminary Notice of Disciplinary Action by Lieutenant Richard Chandler on September 19, 1995.
The disciplinary charges against Johnson were adjudicated in an administrative hearing before independent hearing examiner John Phillip Maroccia, Esquire, on February 2, 1996 and May 21, 1996. In a June 14, 1996 letter to CCPD Chief of Police George D. Pugh, Maroccia summarized the testimony he heard at the hearing and announced the following findings of fact:
This Hearing Officer finds that on August 23rd, 1995 Sergeant Keith Johnson came to the Hall of Justice with his brother to respond to an arrest warrant and that when Mr. Johnson was appraised of a procedure with regard to persons charged with a civil arrest warrant that he was to be handcuffed and brought to jail unless there were some payment involved which was inconsistent with the previous understanding of either Sergeant Keith Johnson or Kevin Johnson or both.
Based on all the testimony that was brought before this Hearing Officer it is clear that Sergeant Keith Johnson used profanity in a loud tone of voice, shouting and had an arrogant demeanor and attempted to use his special influence as a Camden City Police Officer to provide special attention and special treatment for his brother. There is some allegations that people mistook Sergeant Keith Johnson for Kevin Johnson because they are twins. This Hearing Officer has disregarded that allegation or argument as out of hand. It is clear that the people involved knew one from the other and that Sergeant Johnson attempted to use his office to effectuate special treatment.
Because of this conduct which this Hearing Officer finds as a matter of fact based on the review of the witnesses and their demeanor, this Hearing Officer finds Sergeant Keith Johnson guilty of the first count of Conduct Unbecoming a Police Officer. Based on Lt. Chandler and Sergeant Green's testimony, it is also clear and I do find as a matter of fact that Sergeant Keith Johnson subsequently engaged in conduct unbecoming a Police Officer when he responded to Lt. Chandler's request to come to his office to pick up papers as he was being charged for the first occasion. (Plaintiff's Exhibit B at pg. 4-5).
Maroccia recommended that Johnson be suspended without pay for sixty (60) days for the first offense of conduct unbecoming a police officer and for an additional ten (10) days for the second offense. The recommended penalty was based on Maroccia's conclusion that Johnson's disciplinary record "shows an ongoing consistent pattern of belligerent and anti-social conduct with regard to Sergeant Johnson's tenure as a Police Officer with the City of Camden." (Id. at pg. 5). Maroccia noted that Johnson's disciplinary record was
replete with charges of failure to comply with the Chief's orders, failure to submit to medical evaluations, chronic absenteeism, negligent handling of equipment and police vehicles, disruptive conduct during Administrative Hearings, making false entries in police records, abuse of sick time and failure to report as a witness when duly subpoenaed. (Id. at pg. 6). Maroccia pointed out that he did not consider Johnson's disciplinary record or his prior performance as a police officer until after he had decided that Johnson was guilty of conduct unbecoming a police officer. (Id. at 5).
Maroccia concluded that Johnson's offenses did not warrant termination, even taking into account Johnson's disciplinary history:
In light of the fact that [Johnson's] prior disciplinary penalties were written reprimands, this Hearing Officer is reluctant to recommend termination of a position of a man who has largely created his own problems as a result of his own stupidity and foolishness. If there was any substantial showing that [Johnson's] belligerent behavior was vented towards any member of the public then I would have no such hesitation. However, except for some minor traffic accidents his personnel record is devoid of any such problems. (Id. at 6.)
Pugh did not agree with Maroccia's recommendation that Johnson be suspended. In a June 18, 1996 memorandum to Camden County Business Administrator Patrick J. Keating, Pugh set aside the penalty recommended by Maroccia and imposed the penalty of termination effective June 28, 1996. Pugh explained his decision as follows:
In my opinion, the [recommended] penalty does not address the egregious behavior exhibit by Sergeant Keith Johnson relative to this entire matter. His unprofessional and intellectually inferior behavior; while interacting with another professional law enforcement agency, brings great discredit to himself as well as our professional organization.
As a law enforcement officer, in particular a supervisor, if he is to control others; he must also learn to control himself emotionally, physically and intellectually. Because we have such a tremendous influence on subordinates and other younger impressionable officers, who tend to emulate us and accept our good or not so good conduct as the norm; we must be mindful of the image we are projecting at all times. (Plaintiff's Exhibit C at pg. 2).
Pugh expressly rejected Maroccia's rationale that Johnson's penalty should be mitigated by the fact that his conduct unbecoming a police officer was not directed at a member of the general public:
. . . This type of behavior, no matter where, when or against whom it is directed can not be tolerated. We can not have dual standards.
The public has almost a blind faith that the organization will identify those officers exhibiting unprofessional behavior patterns and punish them accordingly. The absence of knowledge by the public does not diminish that faith. In fact, the Department's creditability, integrity and overwhelming public trust is jeopardized when our disciplinary process is based on whether or not the public is aware of the officer(s) deviant behavior. (Id.)
Johnson filed an administrative appeal of his termination with the Office of Administrative Law. Pursuant to a settlement between Johnson and CCPD, Johnson dismissed his appeal and agreed to accept a six-month suspension without pay, and CCPD agreed to reinstate Johnson to his position as a sergeant and to compensate him for lost wages and benefits incurred over and above the six-month suspension. (Plaintiff's Exhibit D). After the proposed settlement had been ...