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Caver v. City of Trenton

August 26, 2005

LIMMIE CAVER; LAWRENCE M. DAVIS; JOSEPH FINNEY; JOSEPH RICHARDSON; BROTHER OFFICERS LAW ENFORCEMENT SOCIETY; TERESA CAVER, AS THE WIFE OF LIMMIE CAVER; KAREN DAVIS, AS THE WIFE OF LAWRENCE DAVIS; LAFAYETTE SUTPHIN,
v.
THE CITY OF TRENTON; THE TRENTON POLICE DIVISION; ERNEST WILLIAMS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; DENNIS KEENAN, PUBLIC SAFETY DIRECTOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JAMES A. WALDRON, JR., FORMER PUBLIC SAFETY DIRECTOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
PAUL J. MEYER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; DANIEL MCKEE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOSEPH VALDORA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; FRED REISTER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; RONALD COLE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOSEPH CONSTANCE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; THOMAS COPPALECCHIA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
RICHARD KOKOTALAJ, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; ALFRED AULETTA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; ROBERT DEFEO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; THOMAS MURPHY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOHN DOES, NO. 1 THROUGH 50, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY;
THE TRENTON POLICE BENEVOLENT ASSOCIATION LOCAL 11; ROBERT SMITH, TRENTON PBA PRESIDENT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOSEPH NOCERA, TRENTON PBA MEMBER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; LEONARD CIPRIANO, TRENTON PBA MEMBER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOHN DOES, TRENTON PBA OFFICERS/MEMBERS, NO. 1 THROUGH 10, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; JOHN R. GABAUER
LAWRENCE M. DAVIS, APPELLANT



On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 99-cv-01636) District Judge: The Honorable Garrett E. Brown, Jr.

The opinion of the court was delivered by: Van Antwerpen, Circuit Judge

PRECEDENTIAL

Argued June 7, 2005

BEFORE: FUENTES, VAN ANTWERPEN and BECKER, Circuit Judges

OPINION

Appellant Lawrence Davis brought various federal and New Jersey state law claims against his employer, the City of Trenton, alleging unlawful discrimination, retaliation and hostile work environment. Before this Court are six challenges on appeal from the five-plus year litigation that ensued. Davis first appeals the District Court's September 28, 2001, grant of summary judgment on his retaliation claim brought under the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, et seq. Second, Davis challenges the District Court's denial of his Motion to Vacate the summary judgment order. Third, he appeals the District Court's denial of his Motion to Amend the Final Pretrial Order. Fourth, Davis appeals the District Court's apparent dismissal of his hostile work environment claim at the close of evidence. Fifth, Davis challenges evidentiary rulings that limited his ability to present psychiatric evidence. Finally, Davis claims that the District Court erred in applying a "determinative factor" standard to his retaliation claims. For the reasons set forth below, we affirm the District Court's disposition of this case in all respects.

I.

A. Background

Davis is a police officer of African-American descent who began working for the Trenton Police Department ("the Department") in August 1990. Prior to the events that gave rise to this litigation, Davis had been a successful officer in the K-9 unit of the Department. He has received a number of commendations for meritorious service and was never subject to discipline from the beginning of his employment until May 1998.

The long and complicated procedural history of this case began on April 9, 1999, when Davis, along with four other African-American officers and the Brother Officers Law Enforcement Society ("BOLES"), filed a Complaint in federal district court. The plaintiffs filed an Amended Complaint on October 7, 1999, and a Second Amended Complaint on May 1, 2000. Since then, all of the plaintiffs with the exception of Davis have settled their claims with the City, and only Davis' case went to trial. On March 19, 2004, a jury returned a verdict in favor of the City in Davis' case.

Only Counts One, Four, Seven, and Sixteen of the 16-count Second Amended Complaint are relevant to the issues presented to this Court. Count One alleged that the defendants created a hostile work environment for Davis and other African-American officers in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1, et seq. In Count Four, Davis alleged race-based retaliation in violation of Title VII and the LAD. Count Seven set forth a retaliation claim under the CEPA, New Jersey's "whistle-blowing" statute. Finally, Count Sixteen, which was not part of the original Complaint, alleged that Davis suffered continued discrimination, harassment, and retaliation in violation of Title VII, the LAD, and the CEPA after the filing of the original Complaint with the District Court.

B. Factual History

Racial Insensitivity in the Department

Davis testified that he overheard other officers, including two of his superiors, Lt. Joseph Valdora and Cpt. Daniel McKee, use hurtful racial slurs to describe African-Americans on a number of occasions throughout the 1990s. On one occasion, McKee read a memo about the City's harassment policy, which stated that officers should not be harassed for their membership in social groups, and told Valdora, in front of all of the other officers, "see, the chief just said it's okay to be in the KKK." (Pa486.)*fn1 Davis' testimony mainly concerned comments made by Valdora and McKee to African-American prisoners and detainees. Davis did not testify that other officers ever directed racist comments at him personally. Davis also sought to show that the City failed to address complaints of racist graffiti being written on bathroom walls and racist flyers being posted at headquarters.

Problems with the Department's Communications Center

In addition to problems with the racial insensitivity of other officers, Davis claimed that he began to experience problems with the Department's Communications Center ("the radio room") in the summer of 1997. The radio room is responsible for dispatching and assigning officers and for keeping records of which officers have been dispatched to particular jobs. Davis said he observed mistakes in the radio room's record-keeping, and he was erroneously assigned to multiple jobs at the same time. He also objected to being assigned to cases that he believed were inappropriate for a K-9 officer.

In July 1997, Davis confronted the radio room supervisor, Joe Woodcock, with his concerns. Around the same time, according to Davis' testimony, an unidentified radio room employee informed Davis that he was being singled out by Woodcock. Davis believed that the only possible reason Woodcock would target him was his race. Davis began submitting memoranda to his supervisors indicating that the radio room was purposely falsifying information. Cpt. McKee forwarded one of these complaints to the Department's Communications Section for an investigation. McKee also drafted a memo to his superior, Deputy Chief Paul Meyer, agreeing that there were problems with the radio room's record-keeping that needed to be addressed.

On July 18, 1997, Davis met with Lt. Valdora and another superior officer, Sgt. John Kemler. They suggested that Davis not question the radio room staff directly about assignments, but rather approach his superior officers with any concerns. Valdora and Kemler also advised Davis that his problems with the radio room were not unique. Davis has since conceded that he knew problems in the radio room were widespread and that many white officers also had issues with inaccurate radio room record-keeping and inappropriate assignments. He nevertheless persisted in his belief that he was being singled out. After the meeting, Valdora wrote a memo to McKee, stating that he believed Davis was being "paranoid," even though he was an otherwise "bright, young officer." (Pa406.)

Davis continued to submit complaints about the radio room. One memo, which detailed a conflict between Davis and Woodcock over the radio, was forwarded to Internal Affairs for an investigation. Woodcock admitted to Internal Affairs that the radio room had problems with record-keeping and mistaken assignments. He denied, however, that Davis' concerns arose out of any personal dispute. On October 3, 1997, Internal Affairs determined that Davis' harassment complaint was "Not-Sustained." (Pa410.)*fn2 On January 9, 1998, Valdora wrote another memo to McKee, expressing concerns about Davis' behavior. He stated that the most recent complaint was "a somewhat rambling account" of the radio room incident. (Pa412.)

Recommendations for Psychiatric Treatment

In the January 9, 1998, memo, Valdora reiterated that he thought Davis was "essentially a good officer," but that he was exhibiting "paranoid" behavior. Valdora agreed that many of Davis' complaints about the radio room were well-founded, but he faulted Davis for attributing those problems to a personal or racial dispute.

This irrational, obsessive behavior troubles me deeply. Imagine if you will, Officer Davis arresting a civilian employee for official misconduct when the elements of the crime are completely absent from all reporting. The civil liabilities would be tremendous. Therefore, I would like to provide you a recommendation. I would like to see Officer Lawrence Davis evaluated by a trained professional.

Id.

On January 11, 1998, McKee wrote a memo concerning Davis' behavior to Deputy Chief Meyer. Like Valdora, McKee praised Davis' police work, but characterized his behavior surrounding the radio room incidents as "paranoid." McKee also recommended that Davis be ordered to undergo psychiatric evaluation. He was subsequently referred to the Corporate Health Center, where Dr. Michael Makowsky ordered a psychiatric evaluation to determine whether there was a "reason for his apparent multiple personalities, one that appears paranoid." (Pa575.)*fn3 The City's psychologist, Dr. Douglas Logue, conducted the evaluation, found Davis to be fit for duty, and only recommended follow-up evaluations. Davis accordingly retained his full responsibilities.

Alleged Harassment by Superior Officers

Davis also testified that, in January of 1998, around the time when Valdora and McKee recommended that he be ordered to undergo psychiatric treatment, they called him in for a meeting. He alleges that Valdora and McKee told him they would "shut [him] up" for "making waves" because the radio room complaints might jeopardize an informal arrangement with the dispatchers, referred to as "the bone," by which the radio room would cover for officers who went home early. (Pa481.) Davis claims McKee and Valdora also began making sarcastic remarks about him during the morning roll call.

On May 9, 1998, Valdora confronted Davis for violating an instruction not to enter the radio room.*fn4 Davis then submitted a private report alleging harassment by Valdora and McKee. On May 11, 1998, Valdora and McKee wrote memos requesting that disciplinary action be taken against Davis for insubordination. On the same day, Davis completed an EEOC intake form for use in a litigation being brought by the other BOLES members. On May 30, 1998, Davis was issued an official warning for allegedly violating the order to not enter the radio room. This was the first time Davis had ever been the subject of any formal discipline. The next day, he submitted a memorandum requesting that Internal Affairs conduct a full investigation of his claims of harassment by McKee and Valdora. Very shortly thereafter, Deputy Chief Meyer ordered Davis to go back to Dr. Logue for further evaluation, which he did on June 2, 1998.

Assignment to Administrative Duty

After his second evaluation, Dr. Logue reported that Davis was developing a psychiatric disorder that required treatment. He recommended that Davis not be permitted to patrol with a gun. As such, the Department confiscated his gun on June 4, 1998, and assigned him to light administrative duty. Davis was later ordered to undergo further psychological testing to determine his fitness for duty, and he met with Dr. Jonathan Willard-Mack on August 19, 1998. Dr. Willard-Mack determined that Davis was not fit to return to full duty. At about the same time, Davis privately sought treatment from Dr. Peter Krakoff. In May 1999, after nine months of treatment, Dr. Krakoff provided a report to Dr. Makowsky, stating that Davis was fit for duty.

Involuntary Sick Leave and Termination

By the time Dr. Krakoff gave his report to Dr. Makowsky, Davis had already been on administrative duty for well over the six month limit imposed by Department policy. In the spring of 1999, Deputy Chief John Gabauer requested that Dr. Willard-Mack reevaluate Davis to determine if he was able to resume full duty.*fn5 Dr. Willard-Mack determined that his condition at the time was unchanged, and Dr. Makowsky concurred. As a result, Gabauer placed Davis on involuntary sick leave on August 19, 1999. He remained on sick leave for a year. In the meantime, Davis privately sought the opinion of yet another doctor and got a full psychiatric exam from Dr. Jodi Whitehouse in January 2000. Dr. Whitehouse forwarded a report to Dr. Makowsky indicating that Davis was fit for duty, but that report apparently had no impact on the City's view of Davis' fitness.

In October 2000, the City held a Departmental Hearing to determine whether Davis was psychologically unfit and should be discharged. Davis attended the hearing with counsel but did not present any testimony or evidence. He was officially terminated on October 13, 2000.

Administrative Appeal of Termination

Pursuant to the New Jersey State Civil Service Law, Davis challenged his termination in an administrative appeal to the New Jersey Merit System Board. The appeal was referred to the Office of Administrative Law and was assigned to an Administrative Law Judge ("ALJ"). The ALJ conducted an extensive hearing from April to June 2002 to determine whether the City erred in finding that Davis was unable to perform his duties.*fn6 On March 20, 2003, the ALJ found that he was fit for duty and that the opinions of Doctors Logue and Willard-Mack were inaccurate. She also found that the City "improperly placed Officer Davis on light duty, improperly removed his weapon, improperly issued him an official warning, [and] improperly placed him on 'out sick' status. . . ." (Pa262.)

The ALJ went on further to state that the Department was irresponsible in its handling of Davis' radio room complaints and that supervising officers used his complaints as a basis "to intimidate him further by sending him for fitness for duty evaluations." (Pa260.) The ALJ found that "this was deliberately done to either: seek his removal from the police department; to cause him to cease expressing his legitimate concern over issues regarding safety of officers and the residents of Trenton; or have him quit his job." Id. Moreover, she found that the Internal Affairs investigation into the radio room incidents was a "sham," as was McKee's memo expressing concern about Davis' mental state.

The ALJ ordered Davis reinstated to his full duties and awarded him back pay and attorneys' fees. On May 8, 2003, the Merit System Board affirmed the ALJ's decision without opinion and issued its Final Agency Order. The City did not appeal.

Ongoing Issues

Davis claims that he continued to be discriminated and retaliated against after the ALJ ordered reinstatement. First, Davis claims the City stalled his reinstatement for several weeks and only reinstated him after the filing of an Order to Show Cause in the New Jersey state courts. Second, he alleges that when he did return to the Department, he was not reinstated to his prior position in the K-9 unit until he exerted pressure through the state courts. Third, Davis claims he was not given a proper dog when he was finally reinstated to the K-9 unit. Finally, Davis claims the City delayed giving him his back pay for several months after the entry of the administrative reinstatement order.

C. Procedural History

Given the lengthy and complicated procedural history in this case, we will outline only those procedural developments that are relevant to the issues presented to this Court. As noted, the initial Complaint in this action was filed on April 9, 1999. After more than two years of discovery, the District Court granted partial summary judgment in favor of the City on September 28, 2001. The summary judgment order disposed of a number of the plaintiffs' claims, including Counts Four and Seven -- Davis' retaliation claims under Title VII, the LAD, and the CEPA.

However, the court denied summary judgment on Count Sixteen, which alleged incidents of harassment, discrimination, and retaliation occurring after the filing of the initial Complaint. In a footnote, the District Court pointed out that Davis could not use Count Sixteen as a vehicle to revive the now-dismissed retaliation claims brought under Counts Four and Seven. Count One, alleging a hostile work environment, also remained alive, as neither party sought summary judgment on that count.

On April 5, 2002, the District Court entered a "Final Pretrial Order," setting the trial for May 7, 2002. However, as mentioned in note 6, supra, plaintiff Joseph Finney was subsequently activated for military duty overseas, and the court stayed proceedings. After the District Court reinstated proceedings ...


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