The opinion of the court was delivered by: Hillman, District Judge
Before the Court are motions for summary judgment filed by defendants Borough of Woodlynne ("Borough") and Mayor Jeraldo Fuentes, and by defendant Veronica Gitto, as well as defendants' joint motion to dismiss the complaint of plaintiff William Moore and to award attorneys' fees. For the reasons expressed below, defendants Borough's and Fuentes's motion for summary judgment will be granted in part and denied in part, defendant Gitto's motion for summary judgment will be adjourned for thirty days to provide for additional briefing, and defendants' joint motion to dismiss the complaint of William Moore will be granted in part and denied in part.
Plaintiffs brought claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, alleging that defendants discriminated against them on the basis of race and, therefore, this Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). This Court exercises supplemental jurisdictional over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367.
Plaintiffs were all former members of the Borough's police department. In their complaint, they allege violations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. ("NJLAD"). Plaintiffs, all Caucasian males, allege that defendants practiced reverse discrimination on the basis of race with respect to their employment in favor of Latinos. Plaintiffs also allege that defendants violated the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. ("CEPA"), and retaliated against them for exercising their rights pursuant to Title VII and the NJLAD.
A. Plaintiff Officer David Gunnings
Plaintiff Officer David Gunnings was hired in November 1997 by the Borough as a police officer Class II (special officer) and promoted to police officer Class I (full time officer) in June 1999. Officer Gunnings, along with plaintiff Officer Moore, took and passed the civil service exam for sergeant and were placed on the promotions list effective December 19, 2002 and expiring December 18, 2005. When Officers Gunnings and Moore were placed on the list, Officer Robert Settimio was also listed and ranked first. Officer Settimio was hired in January 2003 as sergeant before Mayor Fuentes took office in January 2004. Sergeant Settimio is not Latino.
In October 2004, Officer Gunnings alleges he was approached by Mayor Fuentes outside a Municipal Court room and asked who issued a parking ticket to a Latino female. The female has also been identified as Councilman Hernandez's girlfriend. Officer Gunnings stated that he told Mayor Fuentes that Officer Heintz had issued the ticket and the Mayor responded in a loud voice, "this is what I am talking about, this needs to stop!" and went into Lt. Cattel's office. According to plaintiffs, on November 17, 2004, Lt. Cattrell provided Mayor Fuentes and Councilman Hernandez with Internal Affairs investigation forms. Officer Gunnings alleges that he was told that the forms were requested to file charges against him and Officer Heintz for the traffic stop of Councilman Hernandez's girlfriend. Officer Gunnings also alleges that he met with Lt. Cattel regarding the ticket incident during which Lt. Cattel stated "is this that ticket that puts up the wall between the police and council" and Officer Gunnings responded "I believe that if this ticket is dismissed then this may not be legal and when are you going to stop this." Officer Gunnings also alleges that during this meeting he said to Lt. Cattell, "how many times are you going to fix tickets for him and what else is next?" Officer Gunnings further alleges that later that day he met with Officer Heintz who stated "I'm just going to dismiss the ticket because I don't want to get into trouble." The ticket was dismissed at the next court date.
According to plaintiffs, on December 30, 2004, Mayor Fuentes contacted Lt. Cattell to have him advise patrolman Ronald Bonilla, a Latino, that Bonilla was going to be appointed acting sergeant. On January 3, 2005, the Mayor and Borough appointed Bonilla as acting sergeant.
Plaintiffs Gunnings and Moore contacted the New Jersey Department of Personnel ("DOP") who confirmed that since there was an active "sergeants list," Officer Bonilla could not be sworn in. Defendants state that they forgot that the list existed. Plaintiffs point out that in addition to Bonilla not being next in line on the active sergeants list, Officer Bonilla had not taken the test for sergeant and thus was not eligible for the position according to DOP Guidelines. Further, until Officer Bonilla's appointment, no position of acting sergeant had previously existed.
The DOP contacted the Mayor and Borough regarding Bonilla's appointment, and they rescinded it on January 13, 2005, ten days after the appointment. Defendants allege that the appointment of Bonilla was in reaction to the absence of Sergeant Settimio due to the illness of his mother. Mayor Fuentes testified that he had chosen to appoint Bonilla over plaintiff Moore, who was on the active list, because Moore was the only detective and it would have been disruptive to the detective bureau. Mayor Fuentes also stated that he anticipated only having Bonilla in the position of acting sergeant for one to three months until staffing problems were resolved.
Mayor Fuentes testified that after the appointment of Bonilla was rescinded the Borough did not hire another sergeant because Sergeant Settimio returned to work after the death of his mother and because the new Director of Public Safety, Charles Jackson, a non-Latino, felt that only one Sergeant was needed. Also, Mayor Fuentes stated that he renewed discussions regarding merging the Borough's police department with the Collingswood police department.
Plaintiffs allege that although the need for a sergeant was clear by virtue of the Mayor and Borough appointing an acting sergeant, defendants intentionally refused to fill the position in order to retaliate against plaintiffs for having complained about the unlawful promotion of Officer Bonilla and to prevent a Caucasian rather than a Latino from filing the position.
B. Plaintiff Officer Andrew Lee
Plaintiff Officer Andrew Lee was hired in October 1999 by the Borough as a police officer Class II. In November 2003, Lee was appointed to the position of provisional police officer, a position which according to the New Jersey Administrative Code can only be held for one year. In 2004, Officer Lee took the civil service test and scored second. Bayardo Arolliga, who is Latino, also took the test and scored first. The results were released in December 2004.
In March 2005, plaintiffs allege that Mayor Fuentes contacted the Director of Public Safety, Ronald Jackson, and questioned why Officer Lee was spotted outside the Borough while on duty. Officer Lee maintains that he explained that he was attempting to locate a vehicle for a traffic stop and returned to the Borough when he was unable to do so. In response, plaintiffs allege that Mayor Fuentes stated he wanted Officer Lee dropped to a Class II police officer and that only Officer Arroliga should be considered for the position of full-time police officer even though Officer Arroliga's application had been previously disqualified after an investigation. Defendants state that Mayor Fuentes and Council President Espinosa told Lee that they could not hire another full-time officer at that time due to budgetary constraints.
Officer Arolliga did not submit an application for the promotion to police officer, Class I; only Lee submitted an application. Six months after he passed the civil service exam, on June 9, 2005, Lee was hired as a police officer, Class I, by the Borough. Officer Lee alleges that his appointment was not certified with the DOP. When he approached defendant Gitto's office to request that she file the appropriate paper work, Officer Lee states that he overhead Gitto say to another employee, "who the fuck does he think he is; the only reason he was hired in the first place is because he dropped the lawsuit. Discrimination, I'll show him discrimination." Plaintiffs state it took in excess of five weeks for Officer Lee's appointment to be certified. Officer Lee alleges that his application was intentionally delayed because defendants wanted to hire Officer Arolliga instead.
C. Plaintiff Detective William Moore
Plaintiff Detective William Moore was hired in July 1994 by the Borough and during all relevant times served as a detective. Although plaintiffs have alleged facts concerning Mayor Fuentes and the Borough's selection of a Latino over Detective Moore for acting sergeant as well as their decision not to fill the position of sergeant after Bonilla's appointment was rescinded, counsel for both parties have stated that Detective Moore has not participated in discovery or pursued litigation of his claims. Particularly, counsel for defendants propounded written discovery upon Moore's counsel on May 1, 2006, but received no response despite follow-up correspondence. On December 18, 2006, a telephone conference was held with the Magistrate Judge wherein the Judge was advised that Moore did not respond to written discovery requests and that counsel for Moore had been unable to reach him despite repeated telephone calls. The Magistrate Judge entered an amended scheduling order extending the discovery date and requiring Moore to respond to written discovery by January 5, 2007. Moore did not respond to discovery or to deposition notices despite being furnished with a copy of the Magistrate Judge's Order by his counsel.
On February 7, 2007, a subpoena ad testificandum was served upon Moore's shift commander at the Collingswood police department for Moore's deposition to be held on February 23, 2007. Moore did not appear for the deposition. On February 14, 2007, a telephone conference was held with counsel for the parties and the Magistrate Judge. Counsel advised the Judge that Moore had failed to comply with the Court's Order compelling discovery and counsel for Moore stated that Moore had not returned phone calls or responded to letters. The Magistrate Judge stated that defense counsel could file a motion to dismiss Moore's complaint. Defense counsel filed the motion to dismiss which was denied by the Magistrate Judge who entered an Order directing that Moore provide all outstanding discovery and appear for deposition no later than June 15, 2007. That Order went ignored by Moore. Counsel states that he continues to be unresponsive to attempts to contact him regarding this litigation. As a result, before the Court is defendants' second joint motion to dismiss Moore's complaint and for attorneys' fees.
A. Defendants' Motion to Dismiss Moore's Claims and to Award Attorneys' Fees
Pursuant to Fed.R.Civ.P. 37(b)(2)(C), if a party fails to obey a discovery order, the Court may impose sanctions including the dismissal of the action or parts thereof. See Fed.R.Civ.P. 37(b)(2)(C). In addition, the Court may order the party to pay reasonable expenses, including attorneys' fees for failure to obey the Order "... unless the Court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." See Fed.R.Civ.P. 37(b).
Dismissal of a complaint "... is a drastic sanction and should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff." Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982). In Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), the Third Circuit outlined six factors to be considered when determining whether a complaint should be dismissed. The Poulis factors include: "(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party ... was ...