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Hightower v. Roman

March 5, 2002


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



Presently before the Court is Defendant Roman Inc.'s Motion for Summary Judgment. For the reasons set forth herein, Defendant's motion is denied in part and granted in part.


Plaintiffs Shannon Hightower ("Hightower") and Jamie Wallace ("Wallace"), African American employees of Defendant Roman, Inc ("Roman"), asserted various Title VII claims against Roman for alleged acts of racial harassment and discrimination. Roman is a New Jersey corporation, primarily in the business of caulking, that was formed in 1994. (Def.'s SOF ¶ 1). Ronald E. Roman ("Ron Jr.") and Scott D. Roman ("Scott") own all the issued stock of the corporation and are the only members of the Board of Directors. (Def.'s SOF ¶ 2-4). Ron Jr. is the President of the corporation, and Scott is the Vice President of the corporation. (Def.'s SOF ¶ 6). Ronald F. Roman ("Ron Sr.") is Ron Jr. and Scott's father. Although Roman alleges that Ron Sr.'s position at Roman was actually that of a "sales person and bidder," (Def.'s SOF ¶ 50), Ron Sr. held himself out to others as the President of Roman. (Pl.'s SOF ¶ 35.) Plaintiffs allege that Ron Sr., as well as Greg Angel ("Angel") and Pasquale Palumbo ("Palumbo"), both employed as foreman and supervisors at Roman, committed various discriminatory acts and created a hostile working environment. (Pl.'s SOF ¶¶ 13-23.)

Hightower was hired by Roman in August of 1994. (Def.'s SOF ¶ 14.) He left Roman in December of 1995, (Def.'s SOF ¶ 17), and returned in the Spring of 1996. (Def.'s SOF ¶ 21.) Hightower then left his position with Roman again in January of 1997. (Pl.'s SOF ¶ 3.) During his tenure at Roman, he was employed as a laborer, foreman, and caulker mechanic. (Pl.'s SOF ¶ 1.) Wallace was hired by Roman as a laborer in November of 1994. (Def.' s SOF ¶ 32.) On or about August 7, 1996, Wallace was placed in what Roman refers to as a "probationary" Foreman position. (Def.'s SOF ¶ 37.) Wallace alleges that he was never employed as a "probationary Foreman," but was actually in the position of a Foreman. (Pl.'s SOF ¶¶ 1-2.) Roman claims that Wallace was unable to monitor properly the crew to which he was assigned, and on October 16, 1996, he was removed from the foreman position. (Def.'s SOF ¶ 40-41.) On November 11, 1996, Wallace was discharged from Roman's employment because he told Ron Sr. that he "did not have to kiss his ass." (Def.'s SOF ¶ 44.)

Hightower and Wallace allege that, while employed at Roman, they were subjected to numerous derogatory, racial epithets on a daily basis. According to Hightower and Wallace, Palumbo repeatedly referred to them as "niggers" and "spearchuckers." (Pl.'s SOF ¶¶ 65-74). Palumbo called the African American employees, including Wallace, "coons" and "jigaboos." (Pl.'s SOF ¶ 77.) He specifically referred to Hightower, who has a Caucasian mother and an African American father, as a "half-breed." (Pl.'s SOF ¶ 78.) Angel also repeatedly referred to Hightower and Wallace as "niggers." (Pl.'s SOF ¶ 69.) Many employees, including Palumbo and Angel, used the term "nigger rig" in the presence of Hightower and Wallace. (Pl.' s SOF ¶ 72.) Hightower alleges that Palumbo and Angel called him a "nigger," "spearchucker," and "jelly bean" in the presence of Ron Sr. on numerous occasions. (Pl.'s SOF ¶ 97.) Wallace claims that he specifically told Palumbo and Ron Sr., as well as other employees, to stop using racial epithets. (Pl.'s SOF ¶ 100.)

In addition to these racial epithets, Plaintiffs allege that various racial comments were directed at them while employed at Roman. According to Wallace, Ron Sr. told him that there were not many black foremen "because they are lazy and never come to work." (Pl's SOF ¶ 79.) Ron Sr. also told Wallace "you better get your black ass in here" and "your black ass will work when I tell you to work." (Pl.'s SOF ¶¶ 81-82.) Angel stated to Wallace that "[t]here are not many black people out here. I could live out here." (Pl.'s SOF ¶ 83.) He also said, referring to Wallace, that "[t]hey hang people like you out here." (Pl.'s SOF ¶ 83.) Notes were placed in African American employees' paychecks, including those of Hightower and Roman that stated "pick no cotton." (Pl.'s SOF ¶¶ 89-90.) When Hightower inquired as to whether these notes were intended to be racial, Ron Sr. responded, "[n]o this is racial, you are fired, you fucking nigger." (Pl.'s SOF ¶ 91.) Various disparaging racial jokes were also made about African Americans at Roman. Angel questioned Wallace by asking, ""[w]hat do niggers and apples have in common? They both look good hanging from a tree." (Pl.'s SOF ¶ 87.) Ron Sr. asked Wallace, "[w]hat do aspirin and black people have in common? They're white, they work, and you got to pick cotton to get to them." (Pl.'s SOF ¶ 88.)

Roman has an "Equal Employment Opportunity Policy" ("EEO Policy"), which it alleges was presented to each employee when they commenced work with Roman. (Certification of Ron Jr., Ex. D1). Roman's EEO Policy states that "[a]ny employee who feels that he/she has been discriminated against may communicate directly with Ron Roman for investigation of the complaint." (Id.) The document provides a line for the signature of "Ron Roman/President" and a line for the employee's signature. Roman alleges that after an employee was presented with the EEO Policy, he or she was given an opportunity to review the document and ask questions. Roman did not produce a copy of this EEO Policy that was signed by either Hightower or Wallace. Roman alleges that the "Ron Roman" referred to in the EEO Policy document is Ron Jr. (Def.'s SOF ¶ 12.) It is undisputed that neither Wallace nor Hightower made any attempt to communicate with Ron Jr. regarding their claims of discriminatory treatment. (Def.'s SOF ¶ 57.)

Wallace and Hightower assert that they believed Ron Sr. was the actual owner and President of Roman during their employment. (Pl.'s SOF ¶ 38.) Wallace believed Ron Sr. was the owner because he "[s]igned the paychecks. Gave us money for going out of town. He was the first one there in the morning. Sent us on jobs. Told us what to do." (Pl.'s Ex. GG at 10)(Dep. Trans. of Wallace.) In his deposition testimony, Ron Sr. explained that he was in charge of everything at Roman and that he was "the boss." (Pl.'s Ex. DD at 28) (Dep. Trans. of Ron Sr.) He admitted that he "assumed the title of president at some time." (Pl.'s Ex. DD at 25) (Dep. Trans. of Ron Sr.) Ron Sr. also admitted that he signed his name as president of the company on various occasions, such as for employee termination and reprimand forms. (Id. at 25-30.) In fact, he signed termination forms for both Hightower and Wallace. (Pl.'s SOF ¶¶ 58-59.) Wallace's termination form indicates that he was terminated because he "showed blatant disrespect to the President of the Company" by his remark "I don't have to kiss your ass" - a statement which was directed at Ron Sr., not Ron Jr. (Pl.'s SOF ¶ 62, Pl.'s Ex. R.) Ron Sr. earned more than any other employee at Roman, including Ron Jr. and Scott, and was one of the few individuals that had his own office. (Pl.'s SOF ¶¶ 55, 63.)

Ron Sr. was previously the President of Roman Caulking and Waterproofing ("Roman Caulking"), a company that was also primarily in the business of caulking. (Pl.'s SOF ¶¶ 25-27.) Scott and Ron Jr. both worked for their father, Ron Sr., at Roman Caulking and Waterproofing. (Pl.'s SOF ¶ 24.) Roman Caulking went bankrupt in 1994. (Pl.'s SOF ¶ 26.) When it went bankrupt, Roman Caulking sold its assets, including equipment and material, to Roman. (Pl.'s SOF ¶ 30.) Both Roman and Roman Caulking were located at the same location on Commerce Lane in Berlin, New Jersey, and many employees from Roman Caulking began working for Roman. (Pl.'s SOF ¶¶ 31-33; Pl.'s Ex. DD at 73.) Palumbo, one of the alleged harassers, was aware that Ron Sr. was the owner of Roman Caulking and also believed that he continued as owner of Roman. (Pl.'s SOF ¶ 32; Pl.'s Ex. EE at 10-11.)

On January 23, 1997, Wallace filed a complaint of racial discrimination with the New Jersey Division on Civil Rights ("NJDCR") that, by the terms of a "worksharing agreement," was also filed with the Equal Employment Opportunity Commission ("EEOC") (Def.'s SOF ¶ 66; Def.'s Ex. 2.) On February 18, 1997, Hightower also filed a complaint of racial discrimination with the NJDCR and EEOC. (Def.'s SOF ¶¶ 59-60.) On June 12, 1997, the EEOC acknowledged receipt of Wallace's charge and stated that it would allow the NJDCR to initially investigate the charge, (Def.'s SOF ¶ 67, Ex. 13), and on November 26, 1997, the EEOC acknowledge receipt of Hightower's charge and similarly stated that it would allow the NJDCR to initially investigate the charge. (Def.'s SOF ¶ 61, Exs. 4-5.) On May 17, 2000, Hightower and Wallace both requested that their charges be "withdrawn" from the NJDCR and the EEOC for the stated reason that they wanted "to file a complaint in the Federal District Court and require a `right to sue' letter." (Def.'s Ex. 15.) On May 24, 2000, the NJDCDR closed the files in both of these cases because the complaints were withdrawn. (Def.'s Ex. 8, 14.) On July 25, 2001, the EEOC issued a "right to sue" letter to Hightower, (Def.'s Ex. 9), and on July 27, 2001, the EEOC issued a "right to sue" letter to Wallace. (Def.'s Ex. 16.) Plaintiffs then filed this suit in federal court on August 7, 2000. (Pl.'s Compl.)

The Court held a motion hearing in this matter on January 28, 2002. At this hearing, Plaintiff Wallace withdrew Count II of his complaint, alleging unequal pay claims. *fn1 The Court reserved judgment on Defendant's Motion for Summary Judgment.


The standard for granting a motion for summary judgment is a stringent one, but it is not insurmountable. Federal Rule of Civil Procedure 56 provides that summary judgment may be granted only when materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Serbin v. Bora Corp., 96 F.3d 66, 69 n.2 (3d Cir. 1996). In deciding whether there is a disputed issue of material fact, the court must grant all reasonable inferences from the evidence to the non-moving party. The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Supreme Court decisions mandate that a summary judgment motion must be granted unless the party opposing the motion "provides evidence `such that a reasonable jury could return a verdict for the nonmoving party.'" Lawrence v. Nat'l Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson, 477 U.S. at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Serbin, 96 F.3d at 69 n.2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (declaring that ...

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