On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-501-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Baxter.
Plaintiff, James D. Pflaumer, a former detective with the New Jersey State Police, commenced an action in the Law Division against his former employer alleging racial discrimination, hostile work environment, and retaliation under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Specifically, plaintiff contended that he was not promoted to his desired rank or positions because he is Japanese-American. According to plaintiff, the discrimination consisted of his superior referring to him as "Pflaumasaki" and "Sake." He also alleged that all minority detectives suffered disparate treatment.
The trial court granted defendants' motion for summary judgment, finding that plaintiff failed to demonstrate any adverse employment action. The trial court also found that plaintiff did not make out a prima facie case of hostile work environment because he could not demonstrate that the alleged conduct was related to race or national origin, and/or that this conduct was severe or pervasive.
Defendant now appeals from this ruling, arguing that the court erred in both its factual findings, and in the legal conclusions drawn therefrom. We reject these arguments and affirm.
Plaintiff considers himself to be of Japanese, German, and American ancestry.*fn1 He joined the New Jersey State Police in 1979, and served as a General Road Duty Trooper through February 1984, when he was transferred to the Casino Gaming Bureau. This Bureau is comprised of multiple units, including the Casino Services Unit ("CSU"), the Special Investigations Unit ("SIU"), and the Casino Investigation Unit ("CIU"). Plaintiff served in the Casino Licensing Unit, which was later dissolved; and the CIU, before being transferred to the SIU in August 1987. He served in the SIU from August 1987 through November 1997.
Until 1995, the SIU was comprised of two squads. In early 1995, however, one squad leader left SIU, creating a vacancy for the position of squad leader. At this time, instead of naming a new squad leader, the two squads that comprised the SIU merged. Plaintiff, who held the rank of Detective I at the time, was not qualified for the squad leader position because squad leaders had to be Detective Sergeants, a rank superior to the rank of Detective I.
Sometime thereafter, the squads were split again. Plaintiff's superior, Lieutenant Thomas Janicky, appointed Detective Sergeant First Class ("DSFC") Gerald Stoll to lead plaintiff's squad. In early 1997, a squad leader was promoted out of the squad, resulting in another squad leader vacancy. According to plaintiff, the structure of the squads at the time began to change to "where you have DSFC as squad leader and the [Detective Sergeant ("DSG")] as assistant squad leader, then you have detective." As a Detective I, plaintiff was two ranks below the new preferred rank for squad leader.
While serving in Stoll's squad, plaintiff reported that his co-workers, including Stoll, referred to him as "Pflaumasaki" or "Sake." Plaintiff recalled that Stoll began using the nickname while he was temporarily attached to his squad, before Stoll was his supervisor. Although his co-workers referred to him by these nicknames on occasion as well, plaintiff claimed that Stoll used them consistently, and never referred to him by his real name. He believed that his co-workers of equal rank only referred to him as "Pflaumasaki" in jest, while Stoll used it in a derogatory manner. Other officers in plaintiff's unit had nicknames as well: Eddie Santiago was called "Rico"; Schulte was called "Swede"; and Watson was called "Wombat." Plaintiff acknowledged that he used these nicknames, but claimed that it was in jest.
In the Spring of 1997, Stoll prepared for plaintiff a standard Performance Evaluation Report (PER) for the period of November 1 to April 30, 1997. He gave plaintiff the highest rating of "competent" for all categories. In Section D of the report, Stoll described three "performance notices" that plaintiff received during the term for: (1) "failure to submit an initial investigation report in the prescribed period of time;" (2) "failure to submit supplementary reports when due;" and (3) "counseling concerning a deficiency in his attitude."
The comment regarding plaintiff's attitude explained that "[plaintiff's] attitude was argumentative and disrespectful. [Plaintiff], when counseled, appears to view suggestion and constructive assistance as criticism and becomes defensive. [Plaintiff] should work to accept direction and constructive critiquing of his actions." In Section C of the PER, however, Stoll acknowledged that "[plaintiff] has shown a noticeable improvement concerning the deficiencies as outlined in Section D of this report. [Plaintiff] has been successful in addressing the areas that required attention and bringing them to an acceptable level."
Plaintiff claimed that this final version of the PER was markedly different from the first version that Stoll attempted to submit. According to plaintiff, Janicky informed him that originally "Stoll typed up an evaluation so derogatory that it would have blocked [plaintiff's] promotion, and apparently Captain Proccacino [plaintiff's and Stoll's superior officer] saw the evaluation and told him to redo it." Plaintiff acknowledged, however, that Stoll's alleged first draft was never entered into his file, was never actually seen by plaintiff, and does not currently exist.
In June 1997, plaintiff was promoted from Detective I to DSG. Approximately four months later, on October 23, 1997, plaintiff and several of his co-workers were reprimanded by Lieutenant Janicky for various work-related issues. Plaintiff "felt" that only the minorities in the unit were rebuked, however. He alleged that Janicky even threatened him with a court martial because he was deputized by the Federal Bureau of Investigation at a federal building, but failed to inform the State Police.
On October 31, 1997, shortly after plaintiff was rebuked by Janicky, Major McPartland requested that plaintiff be transferred from the SIU to the CIU. The transfer was authorized on November 6, 1997. After this transfer, plaintiff retained his rank, his position as assistant unit supervisor, his responsibilities within the unit, and his compensation. In fact, plaintiff supervised a greater number of detectives in his new position in the CIU.
Despite the objective evidence indicating otherwise, plaintiff believed that his transfer from the SIU to the CIU was a demotion because detectives in the CIU were requested to wear a suit and tie, as opposed to jeans like SIU detectives; and CIU detectives had to work various shifts, including holidays and weekends, as opposed to SIU detectives, who worked regular weekday business hours. In his view: "Most people would consider it a demotion because in order to get to SIU you have to prove yourself in CIU to be an efficient detective, so it's a step backwards." Ultimately, however, plaintiff acknowledged that his transfer was essentially a lateral one.
On November 7, 1997, one day after his transfer was authorized, plaintiff filed a Discrimination Complaint Processing Form with the New Jersey Department of Personnel, Equal Employment Opportunity/Affirmative Action Unit (EEO/AA). The complaint covered the period from Spring 1995 to the time of filing.
Approximately one month thereafter, Sergeant Stoll prepared plaintiff's PER for the period of September 14 to December 13, 1997. Although he gave plaintiff a "competent" rating for most categories, Stoll gave the rating of "some improvement needed" for three categories, and "unsatisfactory" for one category. In the narrative sections of the report, Stoll acknowledged two performance notices received by plaintiff, in which he was commended for his performance in two specific ...