United States District Court, D. New Jersey
October 13, 2005.
MARSHALL BERRY, Plaintiff,
JOHN LOMBARDI, MORRIS COUNTY SHERIFF'S DEPARTMENT, EDWARD ROCHFORD, JOHN DEMPSEY, JOHN KINNECOM, FRED MILLS, FRANK CORRENTE, ROGER BISHOP, MICHAEL NOWACKI, and JOHN DOES I through X, Defendants.
The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
Plaintiff Marshall Berry ("Berry") allegedly injured his back
as the result of an accident during a training exercise with his
former employer, the Morris County Sheriff's Department ("MCSD").
Years later, Berry took a leave of absence from MCSD due to the
deteriorating condition of his back. In December 1998, MCSD suspended Berry within two weeks of his resumption of
work. According to Berry, MCSD engaged in improper conduct
regarding his disability and race, ultimately resulting in his
termination. As a result, Berry filed this lawsuit against MCSD
and various supervisors and co-workers (collectively
The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1332. Venue is proper in the District of New Jersey pursuant
to 28 U.S.C. § 1391.
Pursuant to Fed.R.Civ.P. 56, Berry has filed a motion for
partial summary judgment as to liability only on the claims of
discrimination based on disability. The defendants have moved for
summary judgment on all nineteen counts of the Complaint. Both
parties have also filed in limine motions seeking to exclude
particular evidence. For the following reasons, the Court
denies Berry's motion for summary judgment, grants in part and
denies in part Defendants' motion for summary judgment,
denies Defendants' motions in limine, and denies Berry's
motion in limine.
Marshall Berry is an African American male. (Pl. App. in Opp.
to Def. Mot. for Summ. J. ("Pl. Opp. App."), Vol. III, Ex. II,
Berry Aff., ¶ 2.) On May 16, 1977, he began working for the MCSD
as a provisional corrections officer in the Morris County
Correctional Facility ("Morris County Jail"). (Def. Statement of Material Facts ¶ 1.) Berry was promoted to the position of
corrections sergeant on January 20, 1984. (Id. ¶ 2.)
Berry injured his back as the result of an accident during an
MCSD training exercise on August 3, 1984. (Id. ¶ 3.) In March
1997, Berry began experiencing pronounced back pain. (See id.
¶ 4; Pl. Statement of Undisputed Facts ¶ 9.) Due to the back
pain, Berry was out of work from March 3, 1997 through December
14, 1998. (Def. Statement of Material Facts ¶ 6.) During this
time, Berry underwent back surgery for a L3-S1 decompression and
bone fusion on March 3, 1998. (Id. ¶ 5.)
On October 12, 1999, Dr. Michael G. Yaffe conducted an
independent medical examination of Berry. (Ltr. from Yaffe to
DeJean of 10/12/99.) Dr. Yaffe concluded that Berry "is able to
return to work without limitations except to avoid heavy
On December 9, 1998, Dr. Carl P. Giordano cleared Berry to
return to work "in an unrestricted fashion as a correction's
[sic] sergeant," despite noting that Berry "continue[d] to have
some back pain and some lower extremity dysesthesias." (Ltr. from
Giordano to Leibu of 12/9/98.) Berry returned to work as a
corrections sergeant on December 14, 1998. (Def. Statement of
Material Facts ¶ 7.) However, Chief Ralph McGrane of the Morris
County Jail allegedly twice saw Berry "hobbling" and "hunched
over." (Pl. App. in Support of Mot. for Partial Summ. J. ("Pl. Moving App."), Ex. I, at 2-3; see also Viola Cert. in Support
of Mot. for Summ. J. ("Viola Moving Cert."), Ex. 19, at 0000016.)
Concerned that Berry could not fully perform his job, Michael
J. Del Vecchio, Division Head of the Office of Risk Management,
wrote Dr. Giordano and asked him to "review the job descriptions
[for corrections sergeant and corrections officer] and advise
which items you feel Sgt. Berry can perform without endangering
himself and/or his fellow officers." (Ltr. from Del Vecchio to
Giordano of 12/15/99.) Del Vecchio followed that letter with
another in which he enclosed copies of a spinal test performed on
Berry. (Ltr. from Del Vecchio to Giordano of 12/17/99.) Del
Vecchio remarked that the spinal test indicated Berry "was
determined to be borderline in acceptance with the standards set
by the U.S. Department of Labor, Employment and Training
Administration, Dictionary of Occupational Titles." (Id.) As a
result, Del Vecchio concluded that Berry "would be a direct
life-safety threat to himself and to his fellow officers should
he continue to work as a Corrections Officer and/or Sergeant at
the Correctional Facility." (Id.) Although Defendants dispute
whether they had played any part in prompting Del Vecchio's
correspondence, it is undisputed that Del Vecchio did not notify
Berry prior to contacting Dr. Giordano. (Pl. Statement of
Undisputed Facts ¶ 19; Def. Opp. to Pl. Mot. for Partial Summ. J.
at 4.) In response to Del Vecchio's correspondence, Dr. Giordano
acknowledged "that if Mr. Berry were to be in a situation where
he has to help restrain an inmate or deal with a combative
inmate, that he would be at risk to injuring himself, as well as
be at risk for not being capable of helping fellow officers."
(Ltr. from Giordano to Del Vecchio of 12/22/99.) Concluding that
Berry was at risk to himself and his fellow officers, Dr.
Giordano "discuss[ed] this with Mr. Berry as well and made it
clear to him that there is no doubt because of his prior surgery
that he is at risk. [He] also made it clear to Mr. Berry that if
other work is available to him that does not place him in such
direct risk, this would be in his best interest as well." (Id.)
At the end of December 1998, the MCSD suspended Berry from his
position as a corrections sergeant pending his final termination.
(Pl. Statement of Undisputed Facts ¶ 20; Def. Statement of
Material Facts ¶ 7.) On May 4, 1999, Berry received a Preliminary
Notice of Disciplinary Action seeking his removal as a
corrections sergeant. (Pl. Moving App., Ex. H.) The MSCD
conducted a departmental hearing on September 3, 1999 to
determine whether Berry should be removed from his post. (See
id., Ex. I.) Despite Berry's exemplary work record, Hearing
Officer Richard E. Riley recommended Berry's termination:
This is clearly not a hearing regarding any
disciplinary infraction. Unfortunately, this issue is
Sergeant Berry's inability to perform his duties as a
Correction's Sergeant. . . .
Based on the permanency of Sergeant Berry's injuries
and the prognosis enumerated in Dr. Giordano's letter
of December 12, 1998, I have no other recourse than
to recommend to the Sheriff that Sergeant Berry's
position with the Sheriff's Office be terminated.
It is clear from the testimony, the employee's
attendance record and the medical information
provided to me, as well as the arguments of Counsel,
that this employee is not physically capable of fully
performing the duties required of a Corrections
Sergeant. It is not clear to me why other remedies
for this situation were not pursued.
(Viola Moving Cert., Ex. 19, at 0000017-18.) On October 4, 1999,
the MCSD officially terminated Berry's employment. (Def.
Statement of Material Facts ¶ 10.)
Berry alleges that his termination was racially motivated.
Berry alleges that his "race has subjected him to ridicule by
many officers and co-workers" at the Morris Count Jail, and that
"such ridicule has taken place either in the presence of or with
the knowledge of supervisory personnel, including the
Defendants." (Am. Compl. ¶ 25.) Berry alleges that white officers
referred to him with racial slurs and gave him racially derisive
nicknames, such as "[Former Sheriff] Fox's Nigger" and "Lips."
(Id. ¶ 27; see also Pl. Opp. App., Vol. III, Ex. RR, Breeding
Aff., ¶ 9.)
Berry alleges that the policies and practices of the MCSD and
its employees promoted a racially charged atmosphere. He alleges
that white officers constantly referred to African-Americans as
"niggers," "jungle bunnies," "spear chuckers," and "porch monkeys." (Am. Compl. ¶ 31(a); see also Pl. Opp. App.,
Vol. III, Ex. JJ, Dixon Aff., ¶ 5; Ex. NN, Williams Aff., ¶¶ 8-9;
Ex. SS, Moore Aff., ¶ 18.) These racial epithets were allegedly
spoken by high ranking officers Lombardi, Mills, Bishop, and
Nowacki. (See, e.g. Pl. Opp. App., Vol. III, Ex. RR, Breeding
Aff., ¶¶ 7-14.) In addition, white officers allegedly
disseminated and posted racially obscene materials within the
MCSD, including a poster titled "Official Runnin' Nigger Target."
(Am. Compl. ¶ 31(b); see also Pl. Opp. App., Vol. I, Exs. A &
B; Vol. II, Ex. W, Berry Dep., at 155:2-16 (testifying that he
witnessed the target himself).)
White officers at the MCSD were allegedly treated more
favorably than minority officers. (See Am. Compl. ¶ 21.) In
Wiggins v. Morris County Sheriff's Dep't, Civ. No. 96-1336
(JCL), Brett Williams testified that white officers were promoted
more frequently than minority officers. (See Pl. Opp. App.,
Vol. II, Ex. V, Williams Dep., at 106:17-24.) With respect to
disciplining officers, Berry alleges that white officers were
less likely to be punished for rules infractions than minority
officers. (See Pl. Opp. App., Vol. III, Ex. II, Berry Aff., ¶
17A.) For example, in O'Brien v. Morris County Sheriff's Dep't,
Civ. No. 98-236 (JCL), Berry testified that white officers who
shared their food with inmates were not disciplined. (See Pl.
Opp. App., Vol. II, Ex. W, Berry Dep., at 110:20-112:18.) On the other hand, Berry testified that Fred Trottie and Leon Dixon, who
are African-American, were terminated for the same conduct.
(Id. at 183:8-25.) Furthermore, Leon Dixon testified that
minority officers were treated more harshly than white officers.
(Pl. Opp. App., Vol. II, Ex. X, Dixon Aff., at 141:17-22.) Dixon
testified that, among other things, he was given time off for
being tardy, whereas a white officer did not receive any
punishment for being late to work. (Id. at 143:11-145-24.)
Berry claims that his status as an African-American and
association with other minorities played a role in his
termination. Berry further alleges that because he associated
with other minority officers, he was subjected to the following
punishment: assignment to less-favored posts, assignment to less
favored shifts, separation from his friends, and ultimately
termination. (Am. Compl. ¶ 29.) Berry believed the superior
officers in the MCSD voiced concern about his back injury because
they were afraid he would take favorable posts from white
officers if allowed to return to work. (Pl. Opp. App., Vol. III,
Ex. II, Berry Aff., ¶ 29.) The MCSD never offered to place Berry
on medical or disability leave as a result of his back injury.
(Id. ¶ 25.) In contrast, the MCSD permitted Noreen Rocco, a
white female officer, to take full disability leave for over a
year without adverse consequences. (Id. ¶ 34.) Berry infers
that the difference in treatment between himself and Rocco is the product of race. (See id. ¶ 35.)
On or about December 22, 1999, Berry filed a claim for benefits
with the New Jersey Department of Labor and Workforce
Development, Division of Workers' Compensation. (Id. ¶ 2 n. 2.)
On July 15, 2002, the Division of Workers' Compensation approved
a settlement award of $26,865.00. (Viola Moving Cert., Ex. 14.)
Berry filed this action on June 15, 2000 against MCSD, John
Lombardi,*fn1 Edward Rochford, John Dempsey, John Kinnecom,
Fred Mills, Frank Corrente, Roger Bishop, and Michael Nowacki.
The nineteen-count complaint contains numerous employment-related
causes of action. Although many claims appear to be repetitive
and/or overlap in some ways, the complaint states claims for
discrimination based on race and disability, hostile work
environment, violation of civil rights under 42 U.S.C. § 1983,
intentional infliction of emotional distress, violations of the
First Amendment, breach of contract, and breach of implied
warranties of good faith and fair dealing.
On October 8, 2004, Berry filed a motion for partial summary
judgment as to liability only on his claims for violations of the
Americans with Disabilities Act and the New Jersey Law Against
Discrimination. He also filed an in limine motion seeking to
bar from the trial evidence of the results, settlement, or
medical reports of his Workers' Compensation case. On the same date,
Defendants cross-moved for summary judgment on all counts of the
complaint. Defendants also filed an in limine motion seeking to
preclude from the trial any evidence of racial discrimination
that allegedly occurred during Berry's employment with MCSD.
I. Summary Judgment Standard
Summary judgment will be granted only if the record shows that
"there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 65(c). Whether a fact is material is determined by the
applicable substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). An issue involving a material fact is
genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Healy v. N.Y. Life
Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d Cir. 1988), cert.
denied 490 U.S. 1098 (1989).
The moving party has the initial burden of showing that no
genuine issue of material fact exists. Celotex Corp. v.
Carteret, 477 U.S. 317, 323 (1986). If the moving party
satisfies this requirement, the burden shifts to the nonmoving
party to present evidence that there is a genuine issue for
trial. Id. at 324. The nonmoving party "may not rest upon mere
allegations or denials" of its pleading, Fed.R.Civ.P. 56(e), but must produce sufficient evidence to reasonably support a jury
verdict in its favor, Anderson, 477 U.S. at 249, and not just
"some metaphysical doubt as to material facts," Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In determining whether any genuine issues of material fact
exist, the Court must resolve "all inferences, doubts, and issues
of credibility . . . against the moving party." Meyer v. Riegel
Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983) (citing
Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d
Cir. 1972)); accord Aman v. Cort Furniture Rental Corp.,
85 F.3d 1074, 1077 n. 1 (3d Cir. 1996).
II. Disability Discrimination
Berry's claims of discrimination based on disability fall into
three categories: (1) claims under the Americans with
Disabilities Act ("ADA"); (2) claims under the New Jersey Law
Against Discrimination ("NJLAD"); and (3) claims under the
A. Americans with Disabilities Act
Counts seven, seventeen, and eighteen state general claims
arising under the ADA. The ADA provides in relevant part:
No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges
of employment. 42 U.S.C. § 12112(a).*fn2 An employer discriminates against
a qualified individual with a disability when the employer fails
to make reasonable accommodations for a plaintiff's disabilities,
unless the employer can demonstrate that such an accommodation
would impose an undue hardship on the operation of the business.
42 U.S.C. § 12112(b)(5)(A).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973), and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 252-56 (1981), the Supreme Court set forth the
basic allocation of burdens and order of presentation of proof in
a Title VII case alleging discriminatory treatment. This
framework applies equally to claims brought under the ADA. Olson
v. Gen. Elec. Aerospace, 101 F.3d 947, 951 (3d Cir. 1996).
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. McDonnell Douglas Corp., 411 U.S. at 802.
Second, if the plaintiff succeeds in proving the prima facie
case, the burden shifts to the defendant "to articulate some
legitimate, nondiscriminatory reason for the employee's
rejection." Id. Third, should the defendant carry this burden,
the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant were merely a pretext for discrimination. Id.
In order to establish a prima facie case of unlawful
discrimination, Berry must show that "(1) he is a disabled person
within the meaning of the ADA; (2) he is otherwise qualified to
perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) he has
suffered an otherwise adverse employment decision as a result of
discrimination." Taylor v. Phoenixville Sch. Dist.,
134 F.3d 576, 580 (3d Cir. 1998) (internal citations omitted).
Berry is disabled within the meaning of the ADA. Berry asserts
that the MCSD and Sheriff Rochford considered his back injury to
be a "disability" that preventing him from working in the MSCD.
(Pl. Statement of Undisputed Facts ¶ 26.) Defendants do not
dispute this assertion in any of their submissions.*fn3
Because Berry was "regarded as" having a disability, he has shown
that he is disabled within the meaning of the ADA. See
42 U.S.C. § 12102(2)(C). The parties do not dispute that Berry suffered an adverse
employment action as a result of his back injury. Berry's alleged
disability prevented him from working in the MCSD. (Pl. Statement
of Undisputed Facts ¶ 26.) The MCSD suspended Berry from work in
December 1998 after contacting his physician and learning that
his back injury restricted him from restraining inmates and could
threaten the safety of himself and his fellow officers. (Id. ¶
20; Pl. Moving App., Ex. B, C, D, H.) On May 4, 1999, Berry
received a Preliminary Notice of Disciplinary Action seeking his
removal as a corrections sergeant "due to the lack of progress in
[his] disability case and the burden on the workforce of the
facility created by [his] absence." (Pl. Moving App., Ex. H,
Rider B; Def. Statement of Material Facts ¶ 8.) After a
departmental hearing, Berry was removed from his post because his
disability prevented him from performing the duties of a
corrections officer. (Pl. Moving App., Ex. J, at 4 & Rider B.)
Clearly, Berry was terminated because of his disability. The
question remains, then, whether Berry was otherwise qualified and
could have performed the job with a reasonable accommodation.
The second element of making out a prima facie case requires
Berry to demonstrate that he is qualified for the job of
corrections sergeant, with or without reasonable accommodation.
There is a genuine dispute of material fact as to this element.
In order to demonstrate that he is qualified under the ADA, Berry must show that he "satisfies the requisite skill,
experience, education and other job-related requirements of the
employment [Berry] holds or desires." 29 C.F.R. § 1630.2(m);
see Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 326 (3d
Cir. 2003). If Berry makes this showing, he must then establish
that, with or without reasonable accommodation, he can perform
the essential functions of the job. 42 U.S.C. § 12111(8);
Conneen, 334 F.3d at 326; 29 C.F.R. § 1630.2(m). Defendants do
not dispute that Berry has the requisite "skill, experience,
education" that his job requires. However, his back injury
restricts Berry from exerting the force necessary to restrain
inmates. (Pl. Moving App., Ex. D.) Defendants claim that
restraining inmates and responding to emergencies are essential
functions of being a corrections sergeant. (Def. Mot. for Summ.
J. at 15-16.) Because no amount of accommodation would enable
Berry to effectively restrain inmates, Defendants argue that he
is not qualified to perform the essential functions of the job.
"Essential functions" encompass "fundamental" duties of the
employment position, not simply "marginal" duties.
29 C.F.R. § 1630.2(n)(1). Determining whether a particular duty is an
essential function is a highly fact-sensitive inquiry, which
"`must be made on a case by case basis [based upon] all relevant
evidence.'" Conneen, 334 F.3d at 326 (quoting Deane v. Pocono
Med. Ctr., 142 F.3d 138, 148 (3rd Cir. 1998) (en banc)). "Relevant evidence may include, but is certainly not limited to,
the employer's judgment as to which functions are essential and
written job descriptions prepared before advertising or
interviewing applicants for the job. However, the employee's
actual experience is also relevant to the inquiry." Id.
(internal citations and quotation marks omitted).
In this case, Defendants assert that the written job
descriptions of a corrections sergeant include restraining
inmates. Job Specification 32652 lists the following examples of
Maintains order in the building and on the grounds of
* * *
Takes the responsibility for good order and the
discipline in specified areas of the institution.
* * *
During some investigations is responsible for . . .
removing inmates that are a threat to the institution
from the general population.
(Viola Moving Cert., Ex. 7, at 0000863.) The Court notes,
however, that these are only three of thirty-six examples
listed in the document. Moreover, of the requirements listed,
only one directly relates to restraining or having any physical
contact with the inmates: "Knowledge of approved force
techniques, chemical mace, fire fighting equipment and other
emergency equipment." (Id. at 0000865.) In addition to the written Job Specifications, Defendants
maintain that, under the judgment of the MCSD and Sheriff
Rochford, the ability to restrain inmates represents an essential
function of being a corrections sergeant. Sheriff Rochford
"considers the physical ability to deal with combative or injured
inmates an essential quality of any officer assigned to the
jail." (Def. Mot. for Summ. J. at 16.) In his deposition, Sheriff
Rochford testified that having Berry return to work in his
current physical condition would pose an undue hardship on the
MCSD because there may be "interaction with inmates where he
might have to assist a fellow officer or employee if the inmate
started acting up or going after an officer." (Viola Cert., Ex.
8, at 67:15-18.) Sheriff Rochford also stated that the MCSD has
no alternative or light duty policy for officers who could not
restrain inmates. (Id. at 66:4-13.) Defendant Corrente
confirmed that, under Sheriff Rochford, light duty does not exist
and that medical services requires corrections sergeants to be
cleared for full duty prior to beginning work. (Pl. Moving App.,
Ex. N, at 102:19-103:15.)
Nevertheless, the actual experiences of Berry (and his
co-workers) contradict Job Specification 32652 and the testimony
of Defendants Rochford and Corrente. Berry alleges that numerous
positions existed in which officers rarely, if ever, had contact
with inmates. (Pl. Mot. for Partial Summ. J. at 17-18.) For example, during the period from 1998-2002, the MCSD was in the
process of moving into a new facility. (Id.) The MCSD formed a
design team to write policies and procedures regarding the new
building. (Id.) The design team was comprised of full-time
officers at the Morris County Jail. (Bishop Dep., Pl. Moving
App., Ex. K, at 51:11-17.) Working on the design team involved no
physical labor, such that the job could have been performed by an
individual in a wheelchair. (Id. at 50:13-51:10.)
In addition, the MCSD had a post in the control center of the
Morris County Jail. (Pl. Mot. for Partial Summ. J. at 20; Torkos
Dep., Pl. Moving App., Ex. L, at 36:9-14.) The control center
post was one of the least physically demanding posts in the jail.
(Id.) The control center had to be manned at all times, even
when officers needed to respond to a combative inmate. (See
Torkos Dep., Pl. Moving App., Ex. P, at 37:3-7, 38:16-21,
39:14-19.) Accordingly, a corrections sergeant unable to restrain
an inmate could still adequately perform the job. In fact, the
MCSD placed officers with minor injuries in the control center.
(Id. at 37:9-17.)
The positions on the design team and in the control center are
but two examples of less strenuous jobs that allegedly could be
performed by disabled officers. Several corrections personnel
held posts in the administrative building outside of the secured
perimeter of the Morris County Jail. (Torkos Dep., Pl. Moving App., Ex. P., at 39:20-40:8.) Even Defendant Corrente had a post
outside of the secured perimeter. (Id. at 40:17-41:16.) Other
administrative positions existed outside of the Morris County
Jail. (See id. at 41:20-42:14.) In addition, the criteria
included in the evaluation forms for many of these posts do not
involve the physical preparedness or physical responsiveness of
the corrections sergeant. (See Pl. Moving App., Ex. T.)
From this evidence, a reasonable jury could infer that the
posts outside of the secured perimeter did not include
restraining inmates. To the extent that the evidence submitted by
Berry contradicts the evidence and testimony of Defendants, the
Court finds a genuine issue of material fact as to whether
restraining inmates is an essential function of Berry's former
job. Therefore, the Court denies summary judgment to either party
on Berry's ADA claims.
B. New Jersey Law Against Discrimination
Counts five, seventeen, and eighteen of the complaint allege
that Defendants discriminated against Berry on the basis of his
disability, in violation of the New Jersey Law Against
Discrimination. N.J.S.A. 10:5-4.1 prohibits employers from
engaging in unlawful employment practices or discrimination
against any disabled person, "unless the nature and extent of the
handicap reasonably precludes the performance of the particular
employment." N.J.S.A. 10:5-4.1; Morris v. Siemens Components, Inc., 928 F. Supp. 486, 495 (D.N.J. 1996); Kube v. New Penn
Motor Express, Inc., 865 F. Supp. 221, 228 (D.N.J. 1994).
The standard for analyzing an NJLAD claim in the summary
judgment context is the same as that applicable to claims of
discrimination under federal statutes. Lawrence v. Nat'l
Westminster Bank N.J., 98 F.3d 61, 70 (3d Cir. 1996); Abrams v.
Lightolier, 50 F.3d 1204, 1212 (3d Cir. 1995).
The sequence of proof and burdens prescribed for Title VII
claims by McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973), and Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 252-56 (1981), applies to LAD claims as
well. Olson v. General Elec. Aerospace, 101 F.3d 947, 951, 956
(3d Cir. 1996) (ADA and NJLAD); see also Abrams,
50 F.3d at 1212 ("New Jersey courts in applying the NJLAD generally follow
the standards of proof applicable under the federal
discrimination statutes."); Lehmann v. Toys `R' Us, Inc.,
132 N.J. 587, 600 (1993) ("In construing the terms of the LAD, this
Court has frequently looked to federal precedent governing Title
VII . . . as `a key source of interpretive authority.'") (quoting
Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990)).
The plaintiff first bears the burden by a preponderance of the
evidence of proving a prima facie case of discrimination.
McDonnell Douglas Corp., 411 U.S. at 802. To establish a prima
facie case of discriminatory discharge under the NJLAD, a plaintiff must demonstrate:
(1) that he or she was handicapped within the meaning
of the law, (2) that he or she was performing his or
her job at a level that met his employer's legitimate
expectations and that the handicap did not
unreasonably hinder his or her job performance, (3)
that he or she nevertheless was fired, and (4) that
the employer sought someone to perform the same work
after he or she left.
Morris, 928 F. Supp. at 495; Kube, 865 F. Supp. at 228;
Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363
541 A.2d 682
, 692 (1988). In this case, Berry has not alleged or
even offered any proof that the MCSD has sought someone to
perform his job after he was terminated. Therefore, Berry has
failed to meet his burden of making out a prima facie case of
Nevertheless, the Court recognizes that the standard for
proving a discriminatory discharge claim under the NJLAD is
premised on a theory of disparate treatment. See Seiden v.
Marina Assocs., 315 N.J. Super. 451, 459-60 (Law Div. 1998). In
a case such as this one, the plaintiff's claim is premised on an
alleged failure by the employer to accommodate the employee.
See id. at 460. The fourth element in the standard for a
discriminatory discharge claim, in which the court compares the
treatment of the plaintiff to that of other employees, is
unnecessary. See id. at 460. "When an otherwise qualified
handicapped employee is not reasonably accommodated and suffers
an adverse employment action because of his or her disability, that, in itself, is sufficient from which to infer
discrimination." Id. at 460-61.
Although the New Jersey Supreme Court has not yet addressed the
issue, lower courts within New Jersey have applied the following
standard to NJLAD claims based upon a failure to accommodate:
Generally, a prima facie case of failure to
accommodate requires proof that (1) the plaintiff had
a LAD handicap; (2) was qualified to perform the
essential functions of the job, with or without
accommodation; and (3) suffered an adverse employment
action because of the handicap.
Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78
(App.Div. 2001) (citing Seiden, 315 N.J. Super. at 455-56);
see also Conoshenti v. Public Serv. Elec. & Gas Co.,
364 F.3d 135
, 150 (3d Cir. 2004) (citing to Bosshard for failure to
accommodate standard); Dicino v. Aetna U.S. Healthcare, Civ.
No. 013-206(JBS), 2003 U.S. Dist. LEXIS 26487, at *38 (D.N.J.
2003) (unpublished) (citing to Bosshard).
Because the standard for proving a claim under the NJLAD for
failure to accommodate is virtually identical to the standard for
proving a claim under the ADA, the analysis is also the same.
Therefore, for the reasons stated above, the Court denies summary
judgment to both parties on counts five, seventeen, and eighteen.
C. Rehabilitation Act
Counts seventeen and eighteen of the complaint include claims
of disability discrimination pursuant to the Rehabilitation Act, 29 U.S.C. § 701 et seq. The rights and
remedies under the Rehabilitation Act are the same as with the
ADA. McDonald v. Pa. Dep't of Public Welfare, Polk Center,
62 F.3d 92, 94-95 (3d Cir. 1995). "[I]dentical standards [are] to be
applied to both Acts." Id. at 94. Berry re-alleges the same
facts to support his Rehabilitation Act claims against
Defendants. For the same reasons stated above, a genuine issue of
material fact exists as to whether restraining combative inmates
is an essential function of the job of a corrections sergeant.
Because this dispute must be resolved to determine whether Berry
sets forth a prima facie case of disability discrimination, the
Court denies summary judgment to both parties on this issue.
D. Breach of Contract
Count fifteen of the complaint states a common law claim for
breach of contract, and count sixteen states a claim for breach
of the implied duties of good faith and fair dealing. In count
fifteen, Berry alleges the standard operating procedures,
operations manuals, employee manuals, and other related policies
of the MCSD created an implied contract between him and the MCSD,
which was breached when Defendants allegedly discriminated
against him based on his disability. (See Am. Compl. ¶¶
125-27.) Making the same allegations in count sixteen, Berry
claims that, based upon those acts, the MCSD also breached the
implied warranties of good faith and fair dealing. (See Am. Compl. ¶¶
In the "Summary and Conclusion" of Defendants' Brief in Support
of Motion for Summary Judgment, the MCSD asserts that counts
fifteen and sixteen of the complaint are "ripe for dismissal."
(Def. Mot. for Summ. J. at 28.) However, the MCSD does not
provide any support this assertion. Berry does not respond to
this assertion in any of his briefs to the Court. Nevertheless,
the Court will grant summary judgment to the MCSD on these
In reaching this conclusion, the Court is persuaded by the
rationale in Santiago v. City of Vineland, 107 F. Supp. 2d 512
(D.N.J. 2000) (Orlofsky, J.). In Santiago, the plaintiff, a
municipal special law enforcement officer, sued his employer
alleging discrimination on the basis of race and disability.
107 F. Supp. 2d at 526. In addition to claims brought under Title VII
and the ADA, the plaintiff brought common law claims for breach
of contract and tortious interference of a contractual
relationship. Id. According to the plaintiff, an alleged
official non-discrimination policy of his employer created an
implied contract, which was breached by the employer's
discriminatory acts against him. Id. at 566. The district court
granted summary judgment in favor of the defendants. Id. at
The court noted that New Jersey law provides a cause of action for wrongful discharge when "`the discharge is contrary to
a clear mandate of public policy.'" Id. at 567 (quoting Pierce
v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980)). Common law claims
for wrongful discharge, however, are preempted when a statutory
remedy under the NJLAD exists. Id. (citing, among others,
Lawrence v. Nat'l Westminster Bank N.J., 98 F.3d 61, 73 (3d
Cir. 1996)). The court went on to state that it "discovered one
New Jersey published opinion that extends the argument to
duplicative contract claims." Id. (citing DeCapra v. Bell
Atlantic-N.J., Inc., 313 N.J. Super. 110, 127-28 (Law Div. 1998)
(finding that employee's NJLAD claim barred duplicative breach of
contract claim, where contract claim was based upon harassment
Applying that logic, the court found that the plaintiff's
common law contract-based claims sought to vindicate the same
rights as those recognized by the NJLAD. Id. at 568. For that
reason, the court granted summary judgment to the defendants on
the contract claims. Id. This case is analogous to Santiago.
By making claims for breach of contract and breach of certain
implied warranties, Berry seeks relief from the alleged
discriminatory acts committed by the MCSD. These rights, however,
are recognized by the NJLAD. Because Berry has stated a claim for
relief under the NJLAD, the Court finds his common law claims to
be duplicative. Therefore, the Court grants summary judgment to
the MCSD on counts fifteen and sixteen. E. Judicial Estoppel
Defendants assert that Berry's disability claims directly
conflict with the positions he took in his Workers' Compensation
case. (Def. Mot. for Summ. J. at 18.) Defendants argue that the
doctrine of judicial estoppel should limit or dismiss Berry's
claims "insofar as they conflict with the position he adopted in
his Workers' Compensation case." (Id. at 19.)
The Court may invoke judicial estoppel at its discretion "`to
preserve the integrity of the judicial system by preventing
parties from playing fast and loose with the courts in assuming
inconsistent positions, and . . . with a recognition that each
case must be decided upon its own particular facts and
circumstances.'" Motley v. N.J. State Police, 196 F.3d 160, 163
(3d Cir. 1999) (quoting McNemar v. Disney Store, 91 F.3d 610,
617 (3d Cir. 1996)).
In Cleveland v. Policy Management Systems Corp., 526 U.S. 795
(1999), the Supreme Court analyzed whether the pursuit and
receipt of Social Security Disability Insurance ("SSDI") benefits
automatically estops the recipient from pursuing a claim under
the ADA. The Supreme Court recognized that a person might qualify
for disability benefits under the Social Security Act yet remain
capable of performing the functions of his job with a reasonable
accommodation under the ADA. See id. at 803. Because the two
claims can coexist, the Court concluded that courts should not apply a per se rule that a claim for disability bars
an individual from pursuing an ADA claim. See id.
Nonetheless, the Court noted that an ADA plaintiff cannot ignore
the inconsistencies inherent in the two actions. Id. at 806. In
order to survive a motion for summary judgment, the plaintiff
"must explain why that SSDI contention is consistent with her ADA
claim that she could `perform the essential functions' of her
previous job, at least with `reasonable accommodation.'" Id. at
In the Third Circuit, the district court is to make two
threshold determinations before applying judicial estoppel: (1)
whether the present position is inconsistent with a position
asserted in another proceeding; and (2) if so, whether either or
both inconsistent positions were asserted in bad faith with the
intent to play "fast and loose with the court." Motley,
196 F.3d at 163-64 (citing Ryan Operations G.P. v. Santiam-Midwest
Lumber Co., 81 F.3d 355, 361 (3d Cir. 1996)).
Berry has submitted enough evidence that the positions taken in
this litigation are not inconsistent with those taken in his
Workers' Compensation case. First, Berry only sought "unpaid
temporary disability benefits," which bolsters his assertion in
this case that he can now perform the work of a corrections
sergeant. (See Viola Moving Cert., Ex. 1, Berry Cert., ¶ 28.)
Second, during the Workers' Compensation hearing, Berry states that he has problems lifting and doing other activities, but he
never states that he cannot perform his job without
accommodation. (Viola Moving Cert., Ex. 13, at 7:10-9:8.) Third,
the settlement reached by Berry and the MCSD concluded that Berry
was 27.5% permanently partially disabled. (Id. at 3:25-4:1.)
Even if Berry is permanently partially disabled, he may be able
to do the work of a corrections sergeant with some reasonable
accommodation. In fact, if Berry is correct that restraining
inmates is not an essential function of the job, he may be able
to do the work without any accommodation. See Cleveland,
526 U.S. at 804 ("an individual might qualify for SSDI under the
SSA's administrative rules and yet, due to special individual
circumstances, remain capable of `performing the essential
functions' of her job"). As Berry has demonstrated that his
positions are not inconsistent, the Court will not apply judicial
estoppel to bar his claims under the ADA.
III. Race Discrimination
The majority of Berry's complaint rests on allegations of
discrimination on the basis of race. He puts forth various
theories of liability, premised upon violations of Title VII of
the Civil Rights Act of 1964 and the NJLAD. The Court will
discuss each theory in turn. A. Disparate Treatment
1. Title VII
Counts three, eleven, twelve, and nineteen of the complaint
state claims for intentional discrimination based on race in
violation of Title VII. Therefore, the Court will apply the
burden-shifting framework of McDonnell Douglas and Burdine, as
set forth in Part II(A), supra.
Under the McDonnell Douglas/Burdine model, a discharged
employee must first prove a prima facie case of discrimination.
Burdine, 450 U.S. at 252-53; Abramson v. William Paterson
College, 260 F.3d 265, 281-82 (3d Cir. 2001) (citations
omitted). To prove a prima facie case of discriminatory discharge
based upon race, a plaintiff must prove that (1) he is a member
of a protected class; (2) he is qualified to do the job; (3)
despite these qualifications, he was the subject of an adverse
employment action; and (4) "under circumstances that raise an
inference of discrimination, the employer continued to seek out
individuals with qualifications similar to the plaintiff's to
fill the position." Sarullo v. United States Postal Serv.,
352 F.3d 789, 797 (3d Cir. 2003); cf. Storey v. Burns Int'l Sec.
Servs., 390 F.3d 760, 764 (3d Cir. 2004) ("plaintiff must
generally present evidence that `raises an inference of
discrimination'") (citations omitted).
Berry has satisfied the first, third, and fourth elements of a prima facie case. As an African-American he is a member of a
protected class. The MCSD subjected Berry to an adverse
employment action when it terminated him on October 4, 1999.
Finally, as detailed above, Berry has submitted evidence that he
worked in a racially charged atmosphere. That work environment
and the circumstances surrounding his termination give rise to an
inference of discrimination based upon race.
Nonetheless, the Court finds that a genuine issue of material
fact exists as to whether Berry is qualified to do the job of
corrections sergeant. As stated in Part II(A)(2), supra, the
parties disagree whether restraining inmates is an essential
function of the job. Defendants argue that Berry must be able to
restrain inmates in emergencies. Because his back injury prevents
him from doing so, Defendants claim that Berry is not qualified
for the job. On the other hand, Berry argues that physically
restraining inmates is not an essential function. Because he can
perform the other duties of corrections sergeants, Berry argues
that he is qualified for the job. Essentially, the parties have
different interpretations as to what "qualified" means in this
case. Therefore, a genuine issue of material fact exists as to
whether Berry is qualified for the job. Accordingly, the Court
denies summary judgment to the MCSD on the Title VII claims in
counts three, eleven, twelve, and nineteen of the complaint.*fn4
In addition to stating disparate treatment claims under Title
VII, counts three, eleven, twelve, and nineteen also state
disparate treatment claims under the NJLAD. To prove a prima
facie case of disparate treatment under the NJLAD, a plaintiff
must demonstrate that he or she "(1) belongs to a protected
class; (2) applied for or held a position for which he or she was
objectively qualified; (3) was not hired or was terminated from
that position; and (4) the employer sought to, or did fill the
position with a similarly-qualified person." Gerety v. Atlantic
City Hilton Casino Resort, 2005 N.J. LEXIS 931, at * 19 (N.J.
July 25, 2005). This is essentially the same test applied by
federal courts under Title VII. In fact, the New Jersey Supreme
Court has "looked to `the substantive and procedural standards
established under federal law' for general guidance" in deciding
employment discrimination claims brought under the NJLAD. Id.
(citing Viscik v. Fowler Equip. Co., 173 N.J. 1, 13,
800 A.2d 826 (2002)). Because the substantive and procedural standards are
the same, the analysis above applies equally to Berry's disparate
treatment claims under the NJLAD. Therefore, the Court denies summary judgment to the MCSD on counts three, eleven, twelve, and
nineteen to the extent that they involve claims under the NJLAD.
B. Hostile Work Environment
1. Title VII
Count eight states a claim of hostile work environment in
violation of Title VII. A court will find a hostile work
environment if the plaintiff proves:
(1) he suffered intentional discrimination because of
his [race]; (2) the discrimination was pervasive and
regular; (3) it detrimentally affected him; (4) it
would have detrimentally affected a reasonable person
of the same protected class in his position; and (5)
there is a basis for vicarious liability.
Cardenas v. Massey, 269 F.3d 251
, 260 (3d Cir. 2001); see
West v. Phila. Elec. Co., 45 F.3d 744
, 753 (3d Cir. 1995).
Looking to all the circumstances, Plaintiff must be able to
demonstrate that the harassment was so severe or pervasive as to
create an objectively hostile work environment. Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998); Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Based on the evidence, a reasonable jury could conclude that
the working environment at the MCSD was pervaded by
"discriminatory intimidation, ridicule, and insult." Harris,
510 U.S. at 21. There is adequate support in the record that
Berry and other minority officers were repeatedly called racial
slurs. Defendants Mills, Bishop, and Nowacki and former defendant Lombardi are alleged to have spoken the epithets, and Lombardi
and Mills labeled Berry "Fox's educated Nigger." In addition to
the use of ethnic slurs by MCSD employees and supervisors,
racially offensive posters were displayed in the workplace.
Moreover, there is evidence in the record to suggest that
Defendants disciplined minority officers more harshly than white
officers. Berry himself was terminated, whereas similarly
situated employees were allegedly accommodated or given full
disability benefits upon retirement. Particularly with evidence
that supervisors participated in the discriminatory conduct,
Berry has produced sufficient evidence to have his claim of
hostile work environment decided by a jury.
Defendants present two arguments that Berry did not suffer from
a hostile work environment. First, Defendants point to Berry's
testimony that he has no knowledge of the individual defendants
discriminating against him on the basis of race. The Court is
mindful that when questioned at his deposition, Berry testified
that he did not suffer direct discrimination from most of the
individual defendants.*fn5 (See Viola Moving Cert., Ex. 2, 10/8/02 Berry Dep., at 48:20-24, 92:15-19, 97:21-24; 10/18/02
Berry Dep., at 184:23-185:1.) Despite these admissions, Berry
also testified that Defendant Bishop instructed Berry to keep
quiet about his concerns of discrimination within the MCSD.
(See Viola Moving Cert., Ex. 2, 10/8/02 Berry Dep., at
60:8-64:1.) Berry felt any complaints would jeopardize his
career. (See id.) In addition, Berry heard Defendants Mills,
Bishop, and Nowacki utter racial epithets. (Id. at 190:3-23.)
These inconsistencies in testimony go to Berry's credibility,
which should be evaluated by a jury.
Second, Defendants argue that because he rarely heard racial
comments firsthand, there can be no hostile work environment.
Berry testified to overhearing racial slurs spoken by others,
including some of the individual defendants. (See 10/18/02
Berry Dep., at 37:16-23, 190:3-23.) More often, however, Berry
testified that he heard discriminatory comments second-hand from
other officers. (See, e.g., id. at 189:10-190:2.)
Nonetheless, the Court must look at all of the circumstances
surrounding Berry's claim. See Harris, 510 U.S. at 23. The
circumstances "may include the frequency of the discriminatory
conduct," id., which should not be limited to the conduct that
Berry witnessed or heard firsthand.
Based on the record before it, the Court concludes that Berry's
Title VII claims for hostile work environment should proceed to a jury trial. Discrimination still exists in today's
society, although it often takes on subtle forms. Therefore, the
Court takes Berry's allegations seriously, even those that stem
from second-hand accounts provided by fellow officers. As the
Third Circuit Court of Appeals has stated, "violators have
learned not to leave the proverbial `smoking gun' behind. . . .
`[D]efendants of even minimal sophistication will neither admit
discriminatory animus or leave a paper trail demonstrating it.'"
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d
Cir. 1996) (quoting Riordan v. Kempiners, 831 F.2d 690, 697
(7th Cir. 1987)). With this in mind, the Court concludes that a
jury should properly evaluate the credibility of Berry's
allegations of discrimination some of which are subtle, and
some of which are overt. The Court therefore denies both parties'
motions for summary judgment on count eight, insofar that count
eight states a claim under Title VII.
In making this ruling, the Court acknowledges the recent
decision in Caver v. City of Trenton, No. 04-2600 (3d Cir. Aug.
26, 2005), in which the Third Circuit Court of Appeals affirmed
the district court's judgment in favor of the employer. In that
case, appellant Lawrence Davis brought various federal and New
Jersey state law claims against his employer, the City of
Trenton, alleging, among other things, hostile work environment.
Caver, slip op. at 4. During a jury trial, Davis testified that he overheard other officers use racial slurs to describe other
African-American officers. Id. at 5-6. In addition, he
described racist graffiti and flyers posted at headquarters of
the Trenton Police Department. Id. at 6. He also claimed that
certain facially neutral conduct by the City was racially
motivated. Id. at 34-35.
The Third Circuit Court of Appeals noted that no racist comment
was ever directed at Davis himself, nor did Davis ever personally
see any racist graffiti or flyers at the Department. Id. at 35.
The court therefore concluded that "Davis cannot meet the first
element of the hostile work environment claim under Title VII or
the LAD causation solely by pointing to comments that were
directed at other individuals." Id. (emphasis in original).
Furthermore, the racists comments he heard about other officers
could only be considered "the sorts of `offhanded comments and
isolated incidents'" that the Supreme Court in Faragher,
524 U.S. at 788, cautioned should not be considered severe or
pervasive enough to constitute a hostile work environment." Id.
Because these incidents alone were insufficient to make out a
hostile work environment claim, the Third Circuit Court of
Appeals also reviewed the circumstances surrounding the facially
neutral conduct Davis claimed to be racially motivated. With
respect to that conduct, the jury found that Davis failed to establish the actions were motivated by racial considerations.
Id. at 37. Because the jury "conclusively determined that the
actions toward Davis were not racially motivated," the court
concluded that the finding was fatal to the hostile work
environment claim. Id. at 39. The Third Circuit Court of
Appeals therefore affirmed the judgment in favor of the City on
the hostile work environment claim. Id.
Recognizing the similarities between this case and Caver, the
Court nonetheless feels that summary judgment is not appropriate
at this time. Although most of Berry's allegations concern
second-hand information, there is evidence that officers directed
at least some of the racist slurs and/or comments at him. There
is also evidence that Berry personally saw racially insensitive
posters, specifically the "Official Runnin' Nigger Target."
Finally, in Caver the jury heard the evidence and determined
that the facially neutral conduct engaged in by the employer was
not racially motivated. In this case, the MCSD offers a facially
neutral explanation for Berry's termination: Berry could no
longer perform his job due to his back problems. Given the
circumstances surrounding his termination, however, Berry should
not be deprived of the opportunity to demonstrate to a jury that
the MCSD's explanation is pretextual and in fact racially
motivated. The differences between Caver and this case,
particularly their procedural histories, compel this Court to deny summary judgment and let Berry's hostile work environment
claims proceed to trial.
Count eight also alleges a hostile work environment claim
pursuant to the NJLAD. Under the NJLAD, a plaintiff alleging a
hostile work environment "must demonstrate that the defendant's
conduct (1) would not have occurred but for the employee's
[race]; and [the conduct] was (2) severe or pervasive enough to
make a (3) reasonable [African American] believe that (4) the
conditions of employment are altered and the working environment
is hostile or abusive." Taylor v. Metzger, 152 N.J. 490, 498,
706 A.2d 685, 688-89 (1998) (quotations omitted). The New Jersey
Supreme Court requires a cumulative analysis of the facts
surrounding a hostile work environment. See Lehmann v. Toys
`R' Us, Inc., 132 N.J. 587, 607, 626 A.2d 445, 455 (1993).
Because the prima facie case and the analysis undertaken by the
trial court so closely resemble those of a hostile work
environment claim brought under Title VII, the above discussion
applies equally to Berry's NJLAD claim for hostile work
environment. Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.
2001). Consequently, Berry has provided sufficient evidence of a
hostile work environment to survive summary judgment. The Court
denies both parties' motions for summary judgment with respect to
count eight of the complaint to the extent it states an NJLAD
claim. C. Systemic Disparate Treatment (Pattern or Practice)
Alleging a "pattern and practice of racial
discrimination/harassment," Berry attempts to make out a systemic
disparate treatment claim under the NJLAD. (Am. Compl. ¶ 51.) The
New Jersey Supreme Court has not addressed how a plaintiff
establishes a prima facie case of systemic disparate treatment.
Because New Jersey courts regularly turn to federal standards in
applying the NJLAD, the Court will apply federal case law
construing Title VII.
The United States Supreme Court has held that a plaintiff must
establish by a preponderance of the evidence that the class
discrimination was the employer's "standard operating procedure
the regular rather than the usual practice." Int'l Bhd. of
Teamsters v. United States, 431 U.S. 324, 336 (1977). In other
words, the plaintiff must show "more than the mere occurrence of
isolated or `accidental' or sporadic discriminatory acts." Id.
"One of the most widely used and effective means of establishing
a pattern or practice of discrimination is by the use of
statistics." Presseisen v. Swarthmore College,
442 F. Supp. 593, 599 (E.D. Pa. 1977).
In this case, Berry offers no statistical evidence of a pattern
or practice of discrimination. The only proof offered is
anecdotal evidence of discrimination against various individuals.
Berry never states whether the individuals who allegedly suffered discrimination constituted all, a majority, or a minority of the
officers at the MCSD or whether all, a majority, or a minority of
the African-American and Hispanic officers suffered
discrimination. Nor does Berry provide a time line of events to
aid the Court in determining how often these acts occurred.
Without more, the Court cannot determine whether these allegedly
discriminatory acts were isolated, accidental, and sporadic, or
whether they were the regular practice of Defendants.
Berry has failed to make out a claim of systemic disparate
treatment by a preponderance of the evidence.*fn6 As he has
not met his burden, the Court grants summary judgment to
Defendants on count two of the complaint.
D. Aiding and Abetting Under N.J.S.A. 10:5-12(e)
Conceding that the individual defendants cannot be held liable
for race discrimination under Title VII, Berry nonetheless wishes
to hold them liable under the NJLAD. N.J.S.A. 10:5-12(e) makes it
an unlawful employment practice "[f]or any person, whether an
employer or an employee or not, to aid, abet, incite, compel or
coerce the doing of any of the acts forbidden under [the NJLAD],
or to attempt to do so." Berry claims that the individual
defendants are liable as aiders and abetters because they "are
all supervisory employees who committed affirmative acts of discrimination and/or displayed deliberate indifference
to workplace discrimination."
Indeed, under this theory of liability, a supervisor has a duty
to act against harassment. Hurley v. Atlantic City Police
Department, 174 F.3d 95, 126 (3d Cir. 1999) (citing Taylor v.
Metzger, 152 N.J. 490, 502, 706 A.2d 685, 691 (1998)). A
supervisor violates this duty either through deliberate
indifference or affirmatively harassing acts. Id. (citing F.
Judson v. Peoples Bank & Trust Co., 26 N.J. 17, 134 A.2d 761
(1957)). Therefore, liability can arise from an individual's
inaction "if it rises to the level of substantial assistance or
encouragement." Failla v. County of Passaic, 146 F.3d 149, 158
n. 11 (3d Cir. 1998) (citing DICA v. Pennsylvania, 91 F.3d 542,
553 (3d Cir. 1996)).
Berry has not provided sufficient evidence to survive the
summary judgment motions by Edward Rochford, John Dempsey, John
Kinnecom, Frank Corrente, or Michael Nowacki. When asked at his
deposition whether Sheriff Rochford discriminated against him as
an individual, Berry answered, "Not to my knowledge." (Viola
Moving Cert., Ex. 2, 10/8/02 Berry Dep., at 92:15-19.) Berry
could not point to any acts of racial discrimination by Dempsey,
and he further admitted that Dempsey never discriminated against
him based on race. (Id. at 97:21-24, 99:8-10.) He stated that
Nowacki never engaged in racial discrimination against him. (Viola Moving Cert., Ex. 2, 10/18/02 Berry Dep., at
184:231-85:1.) Berry has never alleged that Kinnecom and Corrente
directed any racial animus at him. Furthermore, in a previous
action Berry testified that he never told anyone that other
officers complained to him about the use of racial slurs in the
workplace. (Viola Moving Cert., Ex. 2, 9/3/98 Berry Dep., at
83:13-18.) In fact, Berry never alleges that he filed a report or
told anyone about race discrimination at the MCSD. Based on these
facts, Berry cannot prevail as a matter of law on his NJLAD
claims against Rochford, Dempsey, Kinnecom, Corrente, or Nowacki.
Berry may, however, be able to prove that the actions or
inaction of Fred Mills and Roger Bishop rose "to the level of
substantial assistance or encouragement." Failla,
146 F.3d at 158 n. 11 (3d Cir. 1998). Berry claims Mills referred to him as
"Fox's educated nigger." (Pl. Opp. App., Vol. III, Ex. RR,
Breeding Aff., ¶ 9.) Mills also used other racial epithets at the
workplace. (See id. ¶ 10.) The evidence suggests Mills not
only knew of the racially charged atmosphere and failed to act
against it, but he may have been a part of the discrimination and
The same can be said for Bishop. Berry has presented evidence
that Bishop referred to African-Americans as "niggers." (Id. ¶
14.) In addition, Berry testified that Bishop encouraged him to
withhold his complaints of discrimination at the MCSD. (See Viola Moving Cert., Ex. 2, 10/8/02 Berry Dep., at
This evidence raises a genuine issue of material fact whether
Mills and Bishop, through deliberate indifference or
affirmatively harassing acts, failed to act against racial
harassment. Therefore, the Court denies summary judgment to Mills
and Bishop on all counts that contain NJLAD claims based on race.
As stated above, however, the Court grants summary judgment on
these counts to defendants Rochford, Dempsey, Kinnecom, Corrente,
E. Lack of Effective Procedures or Policies
Counts four and nine of the complaint rest on Berry's
allegations that Defendants failed to establish or adopt
effective procedures to combat racial discrimination. (Compl. ¶¶
58, 85.) Berry, however, does not point to any law the Defendants
have violated with their alleged failure. It appears that Berry
is attempting to construct a legal claim by refuting a potential
affirmative defense to a hostile work environment claim, namely
"(a) that the employer exercised reasonable care to prevent and
correct promptly any [racially] harassing behavior, and (b) that
the plaintiff employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise." Burlington Indus. v.
Ellerth, 524 U.S. 742, 765 (1998). Because the Court knows of no law that imposes liability on an employer for failing to
establish procedures or policies to combat racial discrimination,
Berry has failed to state a claim upon which relief can be
granted. The Court therefore grants summary judgment to
Defendants on count four and nine of the complaint.
F. § 1983 Equal Protection Claim
Defendants move for summary judgment on count one, which
alleges a violation of 42 U.S.C. § 1983; however, Defendants have
failed to brief this issue for the Court. Although inartfully
pleaded, count one appears to allege that Berry was denied equal
protection of the laws because Defendants discriminated against
Berry on the basis of race. In particular, "Defendants failed to
effectively identify and remediate the racial
discrimination/harassment against" Berry. (See Am. Compl. ¶ 45.)
A plaintiff may have a federal cause of action under
42 U.S.C. § 1983 for alleged violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory . . . subjects, or causes to be
subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
42 U.S.C. § 1983. Defendants are the MCSD and seven individual
officers acting under their authority as Morris County personnel.
In order to establish a violation of his equal protection rights, Berry must prove that Defendants acted with a racially
discriminatory purpose. See Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Washington
v. Davis, 426 U.S. 229, 245 (1976). Viewed in its totality, the
evidence submitted by Berry raises a genuine issue of material of
fact as to whether Defendants intentionally discriminated against
Berry on the basis of race. Given the evidence submitted and the
fact that Defendants failed to brief the § 1983 claim, the Court
must deny summary judgment to Defendants on count one of the
G. Civil Conspiracy
In count ten, Berry alleges various conspiracy theories
culminating in his unlawful, pretextual termination. Defendants
have moved for summary judgment on count ten, claiming that Berry
has offered no evidence of an agreement between Defendants to
terminate Berry. Berry has not opposed their motion on this
issue. For the following reasons, the Court finds that Berry has
failed to demonstrate the existence of a civil conspiracy under
either state or federal law.
1. New Jersey Civil Conspiracy
Under New Jersey law, a civil conspiracy is "a combination of
two or more persons acting in concert to commit an unlawful act,
or to commit a lawful act by unlawful means, the principal
element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that
results in damage." Banco Popular N. Am. v. Gandi,
184 N.J. 161, 177 (2005) (citing Morgan v. Union County Bd. of Chosen
Freeholders, 268 N.J. Super. 337, 364 (App.Div. 1993)).
The Court agrees with Defendants that Berry has failed to
present "a scintilla of evidence . . . suggesting the Defendants
conspired to either discipline or terminate him for pre-textual
reasons." (Def. Mot. for Summ. J. at 12.) None of the numerous
depositions or affidavits even hint that Defendants formed an
agreement to terminate Berry. Because there is no evidence of an
agreement, Berry cannot prevail on his claim of state law civil
conspiracy. The Court grants summary judgment inasmuch as count
ten states a claim under state law.
2. § 1985 Conspiracy
Although not stated explicitly, count ten also appears to set
forth a claim under 42 U.S.C. § 1985. Under § 1985(3), a
plaintiff may have a cause of action for a conspiracy to
interfere with civil rights where "two or more persons in any
State or Territory conspire . . . for the purpose of depriving,
either directly or indirectly, any person or class of persons the
equal protection of the laws, or of equal privileges and
immunities under the laws." In this case, Berry alleges that
Defendants conspired to discipline and terminate him, which
deprived him of his equal protection rights. (See Am. Compl. ¶¶ 90-93.) For the reasons below, the Court concludes that
Defendants are entitled to summary judgment on count ten to the
extent that it states a claim under § 1985(3).
First, the Court believes that Berry's complaint is founded
primarily upon his Title VII claims. In Great American Federal
Savings & Loan Association v. Novotny, 442 U.S. 366, 372 (1972),
the Supreme Court addressed whether an individual who was injured
by a conspiracy to violate § 704(a) of Title VII was also
deprived of equal protection of the laws within the meaning of
42 U.S.C. § 1985(3). The Court held that, because § 1985(3) does not
provide substantive rights itself, it "may not be invoked to
redress violations of Title VII." Id. at 378. Title VII
provides its own remedial scheme, which cannot be circumvented by
turning to the framework of § 1985(3). Id. at 375-76. Because
Berry's cause of action under § 1985(3) appears to be premised on
a deprivation of a right created by Title VII, it fails as a
matter of law. See id. at 378.
Second, as stated above, Berry has not shown that Defendants
acted in concert to deny him equal protection of the laws.
Without an agreement, there can be no civil conspiracy.
H. Intentional Infliction of Emotional Distress
Count six alleges a claim for intentional infliction of
emotional distress. In order to state a claim for intentional
infliction of emotional distress, "`plaintiff must establish intentional and outrageous conduct by the defendant, proximate
cause, and distress that is severe.'" Taylor v. Metzger,
152 N.J. 490, 509 (1998) (quoting Buckley v. Trenton Sav. Fund
Soc'y, 111 N.J. 355, 366 (1988)). The conduct must be so extreme
and outrageous as to surpass all possible bounds of decency.
Id. (citations omitted). "[M]ere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities" are not
actionable. Id. (citations and quotation marks omitted).
Defendants argue that the racial epithets and disparaging jokes
heard by Berry do not rise to the requisite level of
outrageousness and extreme behavior because Berry heard most of
the comments secondhand. The Court notes that New Jersey courts
rightly deem racist slurs as offensive, intolerable, outrageous
conduct, particularly in the employment setting. See id. at
Nonetheless, Berry fails to make out a claim for intentional
infliction of emotional distress because he offers no proof of
severe distress as a result of the alleged conduct by Defendants.
"[T]he emotional distress suffered by the plaintiff must be `so
severe that no reasonable [person] could be expected to endure
it.'" Id. at 514 (quoting Buckley, 111 N.J. at 366.) In this
case, the only evidence of distress is a medical report submitted
by Defendants in which the doctor states Berry suffers from "a
moderate degree of depression." (Viola Cert., Ex. 6, Johnson Report, at 0000707.) The doctor, however, concludes that the
depression is the result of "pain and loss of function" due to
Berry's back condition. Id. There is no indication that the
depression stems from the conduct of Defendants. A reasonable
jury would not find that Berry suffered severe emotional distress
as a result of Defendants' alleged conduct. As a result, the
Court grants summary judgment to Defendants on count six.
I. Claims Premised on Freedom of Speech and Association
In count thirteen, Berry claims that Defendants retaliated
against him for his cooperation and friendship with other
minority officers, in violation of his rights to freedom of
speech and freedom of association. Count fourteen states a claim
for violation of the New Jersey Constitution based upon the same
conduct. Defendants move for summary judgment on these two
counts; once again, Berry provides no response in opposition.
Therefore, the Court will grant summary judgment "if
Under 42 U.S.C. § 1983, a public employee may sue to enforce
his First Amendment rights if
(1) [he] spoke on a matter of public concern; (2)
[his] interest in that field outweighs the
government's concern with the effective and efficient
fulfillment of its responsibilities to the public;
(3) the speech caused the retaliation; and (4) the
adverse employment decision would not have occurred
but for the speech.
Forgarty v. Boles, 121 F.3d 886
, 888 (3d Cir. 1997). With
respect to causation, "the plaintiff has the initial burden of showing that his constitutionally protected conduct was a
`substantial' or `motivating factor' in the relevant decision."
Suppan v. Dadonna, 203 F.3d 228
, 235 (3d Cir. 2000) (citing
Mount Healthy City Sch. Dist. Bd. of Ed. v. Doyle,
429 U.S. 274
, 287 (1977)). These same standards apply to the free speech
claim premised on the New Jersey Constitution. Because the
protections of Article I ¶ 6 of the New Jersey Constitution
mirror those of the First Amendment, the New Jersey Supreme Court
relies on federal constitutional principles in interpreting the
free speech provisions of the state constitution. See Sunkett
v. Misci, 183 F. Supp. 2d 692, 708 (D.N.J. 2002) (citing
Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254
716 A.2d 1137
, 1141-42 (1998)).
Berry has not demonstrated that his association with other
minority officers or his testimony in other lawsuits against
these Defendants played a "substantial" or "motivating role" in
his termination. There is no evidence in the record, direct or
circumstantial, of an adverse employment action taken against
Berry because he befriended and cooperated with other minorities.
In fact, the record surrounding Berry's termination is replete
with references to his back injury, not his associations with
other officers. Consequently, Berry cannot prevail on his claims
under the First Amendment or the New Jersey Constitution.
Therefore, the Court grants summary judgment to Defendants on counts thirteen and fourteen.
IV. Miscellaneous Claims
In Plaintiff's Brief in Opposition to Defendants' Motion for
Summary Judgment, Berry raises for the first time a claim that
Defendants violated the Health Insurance Portability and
Accountability Act of 1996 ("HIPAA"). (Pl. Opp. Br. at 37.) Berry
claims that the MCSD violated his right to confidentiality of his
medical records when Del Vecchio contacted Dr. Giordano for an
opinion as to Berry's ability to perform his job.
While the Court is not certain that HIPAA even allows for a
private right of action against an employer for taking such
action, the Court need not make this determination because Berry
cannot raise a new claim in an opposition brief. The Court
therefore denies relief under HIPAA.
Citing to Berry's original complaint, Defendants state that
Berry seeks relief under the Conscientious Employee Protection
Act ("CEPA"), N.J.S.A. 34:19-1 et seq. (Def. Mot. for Summ. J.
at 24.) Berry's Amended Complaint, however, contains no cause of
action or claim for relief under CEPA. Therefore, to the extent
that Berry now seeks relief under CEPA, the Court denies his
request. V. Limiting Damages
Defendants argue that Berry should be judicially estopped from
recovering money damages in excess of $50,000.00 due to (1) his
filing of a Chapter 13 bankruptcy petition estimating his assets
at between $0.00 and $50,000.00, and (2) his alleged failure to
file schedules or any other document disclosing the existence of
the claims in this litigation. Berry counters that he did include
a reference to the pending litigation in his bankruptcy filing
and his statement of assets.
The Court need not address this dispute. On January 20, 2005,
Judge Donald H. Steckroth of the United States Bankruptcy Court
for the District of New Jersey issued an order dismissing Berry's
bankruptcy action. (Pl. Supp. Ltr. Br. of 3/31/05, Ex. C.) Judge
Steckroth's dismissal order renders moot any issues in this case
relating to Berry's bankruptcy. Therefore, the Court denies
Defendants' request to limit Berry's damages to $50,000.00.
VI. Motions In Limine
Before the Court are three motions in limine: (1) Berry's
motion to preclude evidence relating to his Workers' Compensation
case; (2) Defendants' motion to preclude evidence of damages
between December 1998 and July 15, 2002; and (3) Defendants'
motion to prelude all evidence of race discrimination. A. Evidence of Workers' Compensation Case
Berry seeks to bar any evidence relating to his allegedly
inconsistent testimony at his Workers' Compensation case. In
addition, Defendants' seek to preclude any evidence of damages
during the time period Berry litigated his Workers' Compensation
case. The Court denies both motions.
As stated above, the Supreme Court requires an ADA plaintiff to
explain the facial inconsistencies between his ADA claims and his
claims for disability benefits. Cleveland, 526 U.S. at 798.
Therefore, Defendants must be allowed to present to the jury
evidence that suggests Berry made inconsistent claims. Berry, on
the other hand, must persuade the jury that his claims were not
inconsistent. As Berry concedes, "neither party should be able to
arrange any evidentiary preclusions or limitations." (Pl. Br. in
Opp. to Def. In Limine Mots. at 39.)
Furthermore, the Court will not limit Berry's evidence of
damages to those damages he incurred after July 15, 2002.
Disability benefits and relief pursuant to the ADA are not
mutually exclusive. Cleveland, 526 U.S. at 802-03. Therefore,
Berry has the right to present evidence of damages he incurred
during the time he litigated his Workers' Compensation case
i.e. from December 1998 to July 15, 2002.
B. Evidence of Race Discrimination
Pursuant to Federal Rules of Evidence 401 and 402, or alternatively Rule 403, Defendants seek to preclude testimony
regarding any evidence of racial discrimination during Berry's
employment. This motion has no merit.
The Court has concluded that many of Berry's claims for race
discrimination under Title VII and the NJLAD will proceed to
trial. Certainly, evidence of race discrimination during his
employment is relevant, admissible evidence pursuant to Federal
Rules of Evidence 401 and 402.
Furthermore, the Court will not exclude the evidence pursuant
to Federal Rule of Evidence 403. The probative value of evidence
of race discrimination is not "substantially outweighed by the
danger of unfair prejudice." Fed.R.Evid. 403. To exclude the
evidence would be to preclude Berry from proceeding on his claims
of race discrimination, tantamount to granting summary judgment.
The Court therefore denies Defendants' motion to bar any evidence
of race discrimination during Berry' employment.
For the foregoing reasons, the Court denies Berry's motion
for partial summary judgment as to liability only on his claims
for disability discrimination.
With respect to Defendant MCSD, the Court grants summary
judgment to the MCSD on claims alleging pattern and practice
discrimination (Count Two), failure to establish procedures to combat discrimination (Counts Four and Nine), intentional
infliction of emotional distress (Count Six), civil conspiracy
(Count Ten), violations of the First Amendment (Count Thirteen),
violations of the New Jersey Constitution (Count Fourteen),
breach of contract (Count Fifteen), and breach of the implied
warranties of good faith and fair dealing (Count Sixteen). The
Court denies summary judgment to the MCSD on claims alleging
violations of Berry's civil rights (Count One), Title VII (Counts
Three, Eight, Eleven, Twelve, Nineteen), NJLAD (Counts Three,
Five, Eleven, Twelve, Seventeen, Eighteen, Nineteen), the ADA
(Counts Seven, Seventeen, Eighteen), and the Rehabilitation Act
With respect to the individual liability of Defendants
Rochford, Dempsey, Kinnecom, Corrente, and Nowacki, the Court
denies summary judgment to these individuals on Berry's claims
alleging civil rights violations (Count One) and grants summary
judgment on all other counts.
With respect to the individual liability of Defendants Mills
and Bishop, the Court denies summary judgment on Berry's claims
alleging violations of his civil rights (Count One) and the NJLAD
(Counts Three, Eight, Eleven, Twelve, Nineteen). The Court
grants summary judgment to Mills and Bishop on all other
Finally, the Court denies Berry's motion in limine and
denies both of Defendants' motions in limine. An appropriate Order follows.
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