The opinion of the court was delivered by: Hon. Jerome B. Simandle
On September 25, 2001, Plaintiff, a Sheriff's Officer in the Gloucester County Office of the Sheriff, alleges he overheard Defendant William Long make a racially derogatory comment about an African-American co-worker. Plaintiff immediately reported the comment to supervisors and co-workers. According to the Complaint, Defendants subsequently retaliated against Plaintiff in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)(3), and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.
Defendant Gloucester County Office of the Sheriff has moved for summary judgment. For the following reasons, the motion will be granted in its entirety.
A. Plaintiff's Employment History Within The Department
Plaintiff Philip Dieser has been employed as a Sheriff's Officer in the Gloucester County Office of the Sheriff ("Sheriff's Office" or "Department") since 1990. (Dieser Tr., Pl. Ex. A, 5:15-24.) All of the positions held by Plaintiff from that time through the relevant period were "bidded positions" -- officers within the Department would bid for a position, and the bid would then be accepted or rejected based primarily on the individual's qualifications and seniority. (Id. at 20:10-21.)
In 1990, Plaintiff bid on and received an assignment in the court security unit. (Id. at 13:14-15.) After serving in that unit for approximately three to four years, Plaintiff successfully bid on a position in the transportation unit, where he worked first at night, and then during the day.*fn1 (Id. at 13:24-14:1; 20:18-21.)
At some point during his service in the transport division, Plaintiff successfully bid on a position in the K-9 unit and was assigned a bloodhound named King. (Id. 20:18-21.) According to Plaintiff, because he could not transport prisoners with King in his police car, he was transferred to the process servers unit. (Id. at 14:7-17.) Following the transfer, if Plaintiff were to receive a K-9 call while serving process, he could immediately respond.
Prior to December 2001, Plaintiff was part of the "first responder" team of the K-9 unit. (Id. at 115:7-14.) According to Plaintiff, that assignment involved immediate response to calls requesting assistance in locating, for example, fleeing felons, missing persons, and weapons.*fn2 (Id. at 15:1-13.) Additionally, Plaintiff and his K-9 assisted in tracking arsonists from crime scenes. (Id.)
According to Plaintiff's testimony, the frequency of calls seeking K-9 assistance varied. For example, there were times when Plaintiff received two or three calls in a single day, and others when Plaintiff would not get a call for several weeks. (Id. at 18-22.) All costs associated with the training, grooming, and caring for King were covered by the Sheriff's Office. (Id. at 15:9-23.)
B. Temporary Reassignments
Occasionally, officers who were assigned to a particular unit in the Department would be "reassigned" to special detail or to perform other duties. These "reassignments" were temporary, though, and the officers who were reassigned remained permanently assigned to their "bidded positions." (Id. at 22:11-19.) Plaintiff claims that during the relevant period, the Sheriff's Office utilized a "power pool," comprised of 2 to 3 officers on any given day, to determine reassignments. Lieutenant Albreacht testified that the power pool was comprised of junior and senior officers. (Albrecht Tr., Def. Ex. DD, 20:13-16.) According to Albrecht, numerous ranking officers, and, in particular, process servers, were subject to daily reassignment. (Id. at 16:15-20.) According to Plaintiff, during the relevant period there was no rotation system in place to ensure even distribution of additional work. (Dieser Tr. at 124:9-20.)
Plaintiff maintains that he was reassigned nine times in the year prior to the alleged incident.*fn3 (Id. at 22:20-23:7; see Pl. Ex. S*fn4 ; Pl. 2/27/06 Chart.) On September 25, 2001, Plaintiff filed a written internal grievance complaining of having been reassigned two days earlier. (Pl. Ex. F.) According to the grievance, at 10:30 P.M. on September 23, 2001, Plaintiff was called at home and ordered to report to Cooper University Hospital to "work hospital duty." Plaintiff alleged that this reassignment was made without regard to seniority, and in contravention to the "seniority list." (Id.) The grievance was submitted to Defendant Undersheriff William Long on September 25, 2001, and to James Cannon, Personnel Director, on September 27, 2001.
C. September 25, 2001 Incident
Plaintiff alleges that on September 25, 2001, he overheard Defendant William Long, an undersheriff in the Sheriff's Office, say to undersheriffs Silver, Fish and Catalano: "That fucking nigger always has that phone glued to his fucking ear." (Dieser Tr. at 45:13-17.) According to Plaintiff, Defendant Long was referring to Officer Chris Harris, an African American corrections officer employed at the Gloucester County Corrections Facility. (Id. at 45:22-25.)
Almost immediately following the incident, Plaintiff claims he reported Long's comment to officers Ray Dilks, Charlie Fare, Sergeant Bruce Scott and Acting Sergeant Bill Barnett. (Id. at 25:1-7; 49:15-18.) According to Plaintiff, he asked those individuals how to proceed as to filing a complaint.*fn5 (Id. at 50:8-51:16.) Additionally, Plaintiff complained to Lieutenants Daisey and Sergeant Johns about what he had overheard. (Id. at 24:23-15; 58:12-18.) Plaintiff claims to have also discussed the comment with others in the department shortly after the incident. (Id. at 58:12-18.) Plaintiff alleges he described to a secretary, Toni Clancy, what he had overheard, and asked how he should proceed. About one week later, Plaintiff maintains he had a similar conversation with another secretary, Barb Graci.
Plaintiff alleges that he first told Chief Silvert that he intended to file an EEOC complaint on December 7, 2001, immediately after Defendant Long suggested to Plaintiff that he withdraw from the K-9 Unit. (Pl. Ex. H, #18.) According to Plaintiff, Long suggested that Plaintiff's status in the K-9 Unit was preventing him from performing other duties. (Pl. Counterstatement ¶ 47.) In fact, Plaintiff did not file an EEOC Complaint until March 20, 2002. (Def. Ex. AA; Dieser Tr. at 68:8-15.)
According to the Complaint, immediately following Plaintiff's discussions with supervisors and co-workers regarding Long's comment, Defendant began retaliating against Plaintiff in primarily two ways. First, Defendant allegedly reassigned Plaintiff with greater frequency and disproportionately to his level of seniority following the incident.*fn6 Second, Plaintiff alleges that he was demoted within the K-9 unit from the "first-response team" to the "K-9 reserve team," and was eventually removed from the Unit altogether after King died. (Id. at 115:10-14.)
Starting immediately after he reported Defendant Long's comments to supervisors and co-workers, Plaintiff alleges he was reassigned frequently.*fn7 According to the chart prepared by Plaintiff, over the course of the relevant period, roughly 40 months, Plaintiff was reassigned approximately 160 times. (See Pl. Ex. S.) For example, Plaintiff was reassigned to do transports, security detail, fingerprinting and extraditions. According to Plaintiff, these reassignments were frequently made when other, more junior officers were available.
2. Transfer Within the K-9 Unit
Prior to the September 25th incident, Plaintiff was a member of the first-response team. In that capacity, Plaintiff was able to respond immediately to K-9 calls because he was accompanied by King while performing his duties in the process unit. (Dieser Tr. at 115:7-9.)
Plaintiff claims that after he reported the incident, he was transferred to the K-9 reserve team. (Id. at 115:10-22.) According to Plaintiff, the only difference between the reserve and first-response teams was Plaintiff's ability to keep King in the car while on assignment. Plaintiff alleges he was effectively transferred to the reserve team on December 17, 2001, when Lieutenant Catalano instructed him to keep King at home during work hours. (Id. at 114:1-21.) Thereafter, whenever a K-9 call went out, Plaintiff would have to first travel home to retrieve King. According to Plaintiff, on several occasions where an immediate response was needed, he was told not to respond because it would take too long for him to first return home for King.*fn8 (Id. at 114:24-115:6.)
By letter dated January 4, 2002, Fraternal Order of Police, Lodge #97 President, Jeffrey Oswald, requested reconsideration of the decision to transfer Plaintiff and King to a "support role." Sheriff Gilbert Miller, III, responded by ...