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June 30, 1999


The opinion of the court was delivered by: Cooper, District Judge.


This matter comes before the Court on defendant Rolando Torres's ("Torres") motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons expressed below, the motion is granted in part and denied in part.


This litigation stems from plaintiff Roberto Rodriguez's ("Rodriguez") employment with the New Jersey Division on Civil Rights ("DCR"), the New Jersey state agency which enforces the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. ("N.J.S.A.") § 10:5-1 et seq. Rodriguez claims that defendant Torres denied plaintiff a promotion to the position of "Administrative Analyst 1" in June 1997 and subjected plaintiff to a "hostile work environment" because of plaintiff's involvement in the following activities: (1) an organization called the Hispanic Council of New Jersey ("HISPAC"), (2) administrative complaints filed by HISPAC against various state agencies, and (3) "his civil rights and political activities on behalf of Hispanic people." (Am. Compl., Count I ¶ 39 (denial of promotion), Count II ¶ 44 (hostile work environment).) Plaintiff has instituted this suit pursuant to 42 U.S.C. § 1983, alleging that defendant's retaliatory conduct (i.e., the denial of the promotion in June 1997, and the creation of a hostile work environment) violated plaintiff's First Amendment right of free speech and association. Plaintiff's Amended Complaint also asserts pendent state claims under the free speech and petition provisions of the New Jersey Constitution, (id. Count III (citing Article I, ¶¶ 6, and 18 of N.J. Const.)), and the anti-retaliation provision of the NJLAD. (Id. Count IV (citing N.J.S.A. § 10:512(d)).)

The facts presented to the Court in connection with this motion are abundant, and we will highlight only those which we find germane to the disposition of this matter.*fn1 Plaintiff began his employment with DCR in 1986. Defendant and plaintiff became acquainted with one another in or around the summer of 1986 at a HISPAC function. (Torres Dep. at 18; Rodriguez Dep. I at 86-87.)

Defendant Torres has been the Director of DCR since September 1995. From July 1990 to September 1995, Torres held the position of Assistant Director of DCR in charge of the "Bureau of Enforcement." (Torres Aff. ¶ 1.) Prior to Torres's appointment as Director of DCR in 1995, HISPAC was involved with the appointment of a new Director of DCR for the Whitman administration. (Torres Dep. at 99.) HISPAC advocated for the appointment of an individual of Hispanic national origin. (Id.; Rodriguez Dep. I at 127.) Eventually, after HISPAC's lobbying efforts, Torres was appointed to the position. Torres is of Hispanic national origin; he was born in Puerto Rico. (Torres Aff. ¶ 4.)

Prior to Torres's appointment as Director, HISPAC filed administrative complaints before DCR in April 1995 against 30 New Jersey agencies and officers alleging broad-based discrimination against Hispanics in hiring and promotions. DCR was not one of the state agencies charged as a respondent. Rodriguez, as secretary/treasurer of HISPAC, was an individual complainant in the HISPAC litigation.

Currently, Rodriguez holds the title of "Administrative Analyst 2" with DCR, a position that he has held since January 1993. As an Administrative Analyst 2, plaintiff was in charge of one aspect of DCR's computer operations, the "case tracking system," which involved docketing of administrative complaints filed with DCR. (Rodriguez Dep. II at 32; Torres Aff. ¶ 9.)

Shortly after becoming DCR Director, Torres decided to coordinate the separate computer operations of DCR. The implementation of the structural change coincided with a leave of absence requested by plaintiff which was to begin on December 1, 1995. During plaintiff's leave of absence, plaintiff sought employment in Arizona. He received an interview for a position, but did not obtain a job offer.

When plaintiff began his leave of absence, Torres assigned Ralph Menendez to operate and manage the case tracking system formerly managed by plaintiff, in addition to Menendez's computer-related responsibilities at DCR. In May 1996, while plaintiff was on leave, Torres decided to consolidate the various computer functions and put them under Menendez's control on an interim basis. Unlike the previous structure, Menendez, as a manager of the unit, reported directly to Torres.

Plaintiff extended his leave beyond the initial six month time period, and returned to DCR in October 1996. Plaintiff returned to his position as Administrative Analyst 2, at a salary higher than when he left for his leave of absence.

Meanwhile, at various points in 1996, all the state respondents in the HISPAC litigation moved for dismissal. On March 3, 1997, Torres granted respondents' motions without prejudice. On April 21, 1997, HISPAC filed a Notice of Appeal of Torres's dismissal with the New Jersey Superior Court, Appellate Division. That same day, HISPAC held a press conference concerning DCR's dismissal of the HISPAC complaints, which took place at the State House at 11:00 a.m.

Plaintiff wanted to attend the press conference. In order to enable him to do so, plaintiff informed Torres's secretary that he would take his lunch hour early that day. Torres became aware that plaintiff took an early lunch hour to attend the press conference. When plaintiff returned to the office, Torres told plaintiff that he could not take an early lunch hour to attend non-agency political-type work without using vacation time. Torres indicated that plaintiff's actions contravened state policy. Accordingly, plaintiff applied for the use of vacation time for his attendance at the meeting and Torres approved plaintiff's request. (Torres Aff. ¶ 8(b).)

In or about the Spring of 1997, Torres implemented the reorganization of DCR's computer functions by creating a new employment position to oversee and coordinate the operations which Menendez had been performing on a temporary basis since May 1996. Torres posted a "notice of unclassified job vacancy" on May 13, 1997 for the position of "Administrative Analyst 1." Four DCR employees applied for the position: (1) plaintiff; (2) Menendez; (3) Nancy Castro; and (4) Bernice Green. Torres decided to interview the first three candidates for the position.

Because of the restructuring undertaken while plaintiff was on leave, plaintiff's day-to-day responsibilities were different than they had been prior to his leave of absence. (Rodriguez Decl. ¶ 6.) Upon plaintiff's return, Menendez assigned plaintiff to two computer-related assignments on or about November 8, 1996. The evidence reveals that plaintiff had problems completing the assignments in a timely fashion. (Rodriguez Dep. at 110.) It appears that Menendez was experiencing problems communicating with plaintiff concerning the timely completion of the two projects assigned to him. Finally in or around the second week in May 1997, Menendez and Torres met to discuss plaintiff's failure to complete the assignments given by Menendez in a timely manner. (Menendez Dep. at 78-79.) At that time, plaintiff had just completed one of the projects assigned to him.

Plaintiff met with Torres, John Superak, Menendez and plaintiff's union representative on May 29, 1997 to discuss plaintiff's problems in completing the assignments. (Id. at 83.) At the time of the meeting, there was either perceived or real tension between plaintiff and Menendez. (Torres Dep. at 135.) Plaintiff testified at his deposition that he told Torres that he felt as if he were being retaliated against because of his membership in HISPAC; Torres assured him that he was not being mistreated. (Rodriguez Dep. III at 29-38; see also Torres Dep. at 133-141.) Plaintiff also stated that Torres indicated to plaintiff that he was unhappy with plaintiff's attitude and conduct since plaintiff returned from leave. Torres indicated his displeasure with the tone of a memorandum written by plaintiff and directed to Menendez earlier in May 1997. (Rodriguez Dep. III at 37-40; Torres Dep. at 133.)

Approximately one week later on June 5, 1997, the interviews for "Administrative Analyst 1" took place. Dean Deakins, Manager of Data Processing Services of the Department of Law and Public Safety, and Katrina Wright, DCR Assistant Director for Community Relations, conducted the interviews on Torres's behalf. After interviewing the three candidates, Deakins and Wright agreed that Menendez was the best qualified candidate, and recommended to Torres that Menendez be selected. (See Wright Aff. ¶ 2; Deakins Aff. ¶ 3; Deakins Aff., Ex. 1.) Consequently, Torres selected Menendez for the position of Administrative Analyst 1. This employment action forms the basis of Count I of plaintiff's Amended Complaint.

Torres articulated three reasons for selecting Menendez for the position. First, Torres relied upon the unanimous recommendation of Deakins and Wright. Second, Torres believed that Menendez was superior to plaintiff in his ability to develop and utilize computer software and create a linked comprehensive information system for DCR. Finally, defendant believed that Menendez had superior abilities to plaintiff in managing employees and in interacting with other DCR managers. (Torres Aff. ¶ 12.)

Plaintiff alleges in addition to the promotion issue, that he was subjected to a "hostile work environment" at DCR because of his affiliation with HISPAC. At his deposition, plaintiff pointed to the following conduct in support of his theory that he was subjected to a hostile work environment in retaliation for his affiliation with HISPAC: (1) plaintiff did not receive a performance assessment review ("PAR") for an extended period of time upon his return from leave, (Rodriguez Dep. II at 106); (2) certain persons in DCR management treated plaintiff differently in that they would not return plaintiff's greetings in the hallways, (id. at 115, 116); (3) defendant commented to plaintiff upon his return from leave on October 15, 1996 that defendant did not feel that plaintiff "fit in his organization" because of the changes that were implemented in plaintiff's absence, (id. at 118); and (4) defendant asked plaintiff during that same meeting how much longer plaintiff thought he would be "around" and that it would probably be better for plaintiff to look for a job outside DCR. (Id. at 130-31.) Plaintiff also points to the fact that his job responsibilities were different upon his return from leave. (Rodriguez Aff. ¶ 6.) Count II of plaintiff's Amended Complaint is predicated on his theory of "hostile work environment" under § 1983, and because the claim is presented to us in that manner, we will analyze the proofs pertaining to that issue separately from the issue raised by the failure to promote plaintiff.

Defendant has filed the instant motion for summary judgment, arguing that the Court should dismiss plaintiff's Amended Complaint in its entirety. Each of defendant's arguments will be discussed in detail below. Our analysis of plaintiff's claims articulated in the Amended Complaint will follow the following structure. We will first address the viability of plaintiff's retaliation claim under § 1983 premised upon defendant's failure to promote plaintiff to Administrative Analyst 1. Next, we will consider whether and under what circumstances a plaintiff may bring a "hostile work environment" cause of action under the analytical framework developed in the context of a § 1983 retaliation claim, and also whether plaintiff is entitled to qualified immunity for that claim. Finally, we will consider the viability of plaintiff's pendent state law claims pursuant to NJLAD and the New Jersey Constitution.


A court shall enter summary judgment under Federal Rule of Civil Procedure 56 when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to defeat a motion for summary judgment, the opposing party must establish that a genuine issue of material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985), cert. denied, 475 U.S. 1013, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986). A nonmoving party may not rely on mere allegations; it must present actual evidence that creates a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citing First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Issues of fact are genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505.

I. Retaliation Claims Pursuant to 42 U.S.C. § 1983 — General

A public employee alleging an adverse employment action because he engaged in First Amendment protected activity must demonstrate the following elements: (1) the employee engaged in protected activity, and (2) the protected activity was a substantial or motivating factor for the adverse action taken by the employer. See Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir. 1998); Swineford v. Snyder County, 15 F.3d 1258, 1259 (3d Cir. 1994) (applying Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). If the plaintiff satisfies the first two prongs, the defendant can escape liability by showing that he would have taken the same action absent the protected activity. Fultz, 165 F.3d at 218.

Defendant appears to concede for purposes of this motion that plaintiff's involvement in HISPAC amounts to protected First Amendment activity. (Def.'s Br. in Supp. at 19 n. 9.) The parties' positions diverge, however, as to the exact conduct by plaintiff which allegedly formed the basis for Torres's retaliatory actions. We will assume for purposes of this motion that plaintiff has engaged in protected First Amendment conduct, as it does not appear that the parties dispute this point.

The next element of the plaintiff's retaliation claim is that the plaintiff must have suffered from some adverse action by his or her employer as a result of engaging in protected speech or association. See Fultz, 165 F.3d at 218; Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997) (plaintiff must demonstrate that government responded to plaintiff's First Amendment protected activity with retaliation); Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996) (plaintiff must demonstrate that the protected activity was a substantial or motivating factor in the alleged retaliatory action). With respect to plaintiff's two claims at issue here, Count I alleges that defendant denied plaintiff a promotion. Count II is predicated on the theory that defendant subjected plaintiff to a hostile work environment.

The third element of plaintiff's prima facie case is that of causation.*fn2 "The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific." Kachmar, 109 F.3d at 178. At this stage of the litigation, the plaintiff must proffer circumstantial evidence sufficient to raise the inference that plaintiff's protected activity was the likely reason for the adverse employment action. Id. at 1377; see also Farrell v. Planters Lifesavers Co., 22 F. Supp.2d 372 (D.N.J. 1998) (to establish the requisite causal connection, plaintiff must proffer evidence "sufficient to raise the inference that her protected activity was the likely reason for the adverse action"). A plaintiff may not normally satisfy his or her burden in that regard by simply pointing to the fact that an adverse employment action occurred after engaging in protected conduct.*fn3 See Robinson, 120 F.3d at 1302 (explaining element of causation in Title VII retaliation context). However, temporal proximity in addition to other evidence of discrimination may establish the required causal link between the protected activity and the adverse employment action. Farrell, 22 F. Supp.2d at 392 (citing Kachmar v. SunGard Data Sys., 109 F.3d 173 (3d Cir. 1996)).

Plaintiff may meet his burden, for example, if he demonstrates a pattern of harassment during the relevant time period. See, e.g., Woodson v. Scott Paper, 109 F.3d 913, 920 (3d Cir. 1997). The Third Circuit has instructed that a plaintiff can establish a causal link between his or her protected behavior and subsequent adverse employment action if the employer engaged in a pattern of antagonism in the intervening period. Id. at 920-21. District courts should examine the intervening time period following the protected conduct and the adverse action for other evidence of retaliatory animus. Farrell, 22 F. ...

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