The opinion of the court was delivered by: Irenas, Senior District Judge
This lawsuit arises from various personnel actions taken against Plaintiff Frank Matreale ("Plaintiff") by his supervisors in the New Jersey Army National Guard ("NJANG"). Plaintiff alleges that his supervisors in the NJANG retaliated against him due to his participation in a sexual harassment case against another Guardsman. Presently before the Court are the Motions for Summary Judgment of Defendant Department of Military and Veterans Affairs of the State of New Jersey*fn1 ("DMVA") and Defendant-Intervenor National Guard of the United States ("NGUS").
Plaintiff joined the NJANG in 1981. By the time the events giving rise to the instant action occurred, Plaintiff had risen to the rank of Major in the NJANG.
In or about July, 1999, Plaintiff provided a statement to Lieutenant Colonel Kent Milliken ("Lt. Col. Milliken") during an inquiry into sexual harassment allegations against a Sergeant Major in the NJANG.*fn2 Although a copy has not been provided to the Court, it appears that Plaintiff's statement supported the account given by the accuser. The investigation concluded that the Sergeant Major had committed sexual harassment. The accuser subsequently filed a complaint against the DMVA under the New Jersey Law Against Discrimination ("NJLAD"), although the outcome of the lawsuit is not clear from the record.
Plaintiff maintains that Lt. Col. Milliken and other NJANG officers engaged in a pattern of retaliation against him for his role in the sexual harassment investigation. On March 18, 2000, Plaintiff was reprimanded by Brigadier General William Marshall ("Brig. Gen. Marshall"), III, for engaging in an improper superior-subordinate relationship and other violations arising from an incident on December 4, 1999, involving Plaintiff, the accuser in the sexual harassment case and several other female non-commissioned officers. (Admin. Rec. Ex. 1 at 15-16) Plaintiff contends that this reprimand was based on "misinformation and lies" provided to Brig. Gen. Marshall by Lt. Col. Milliken, and that his relationship with the accuser was strictly professional. (Admin. Rec. Ex. 1 at 17, 21) Brig. Gen. Marshall's letter of reprimand was placed in Plaintiff's personnel file.
He contends that Lt. Col. Milliken intentionally delayed Plaintiff's officer evaluation report due on January 31, 2000, until November 7, 2001. Plaintiff maintains that Lt. Col. Milliken did this so that Plaintiff could not appeal the derogatory statements made within the report in time to correct the report before his Selective Retention Board was convened. (See Admin. Rec. Ex. 1 at 26-7) He maintains that the derogatory report prevented him from being promoted to Lieutenant Colonel and eventually led to his termination from NJANG, although the termination was later overturned.
Plaintiff also contends that Lt. Col. Milliken berated and humilitated him in front of other officers, including one situation in which Lt. Col. Milliken ordered a subordinate officer to remove Plaintiff from his command.*fn3 After this incident, Plaintiff privately asked Lt. Col. Milliken to cease the harassment, but Lt. Col. Milliken again berated and humiliated him for making the request. According to Lt. Col. Milliken, Plaintiff used "insulting, profane and disrespectful language" in speaking to him. (Admin. Rec. Ex. 1 at 24-5)
Lt. Col. Milliken and Adjutant General Paul Glazar ("Adj. Gen. Glazar") then brought charges against Plaintiff under the Uniform Code of Military Justice ("UCMJ") for conduct unbecoming an officer and a gentleman as a result of this incident. (Id.) On December 4, 2000, Brig. Gen. Marshall found that Plaintiff violated the UCMJ and ordered him to forfeit two months of his salary. (Id.) Plaintiff did not appeal the determination.
Plaintiff further contends that Lt. Col. Milliken and Adj. Gen. Glazar agreed to remove documentation of the UCMJ charge from Plaintiff's personnel file, but that Lt. Col. Milliken later violated this agreement and included the records in the file. As a result, Plaintiff was denied a promotion. Plaintiff applied to the Board for the Correction of Military Records to have the UCMJ charge information and resulting general officer memorandum of reprimand, as well as the November, 2001, officer evaluation report, removed from his file. The Board has not yet made a final determination. It appears, however, that at least some of this information was removed from Plaintiff's personnel file by Lt. Col. Milliken's successor.
Plaintiff's unit was mobilized for service in Iraq on August 19, 2004. Plaintiff remains on active duty with the Army to this date.
Plaintiff filed a Complaint against the DMVA in the Superior Court of Burlington County, New Jersey, on or about October 16, 2003. Plaintiff alleges that the DMVA, apparently through Lt. Col. Milliken and other members of the NJANG, retaliated against him for taking part in the sexual harassment investigation in violation of NJLAD. He seeks compensatory and punitive damages, reinstatement,*fn4 and any declaratory or injunctive relief*fn5 which may be proper.
On March 18, 2005, Judge Marie White Bell of the Superior Court signed an order permitting the NGUS to intervene in the case. NGUS removed the case to the District of New ...