On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1923-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges Lintner and Sabatino.
Plaintiff Clifford Patterson appeals the Law Division's dismissal with prejudice of his complaint alleging discrimination by his former employer and several of his former co-workers. The court dismissed the complaint because of plaintiff's persistent failure to comply with discovery orders, despite having been given numerous opportunities to do so. In particular, plaintiff violated repeated orders to produce written transcriptions of forty-eight audiotapes that he had secretly made of his co-workers' conversations, tapes which he portrayed as containing pivotal evidence of the alleged discrimination. We affirm.
In 1977 plaintiff began working for a predecessor company of defendant ExxonMobil Corp. ("Exxon") in Paulsboro. He worked there in the maintenance department as a welder and mechanic. Plaintiff, who is white, alleges that, while he was working at the Paulsboro facility, he became the object of "racially discriminatory behavior" such as "pranks, jokes, and games" directed at him by several co-workers. The co-workers, who are also white, were individually named as defendants in plaintiff's complaint along with defendant Exxon.
Plaintiff alleges that the discriminatory behavior began in 1992. He contends it intensified in 1994, when plaintiff communicated to the facility's management his perception that qualified black and Hispanic employees were being passed over for promotions in favor of white employees who appeared to be less qualified. In particular, plaintiff contends that he supported fellow employee John Lyles's*fn1 filing of a grievance action against the company. Plaintiff further alleges that he confronted his supervisor, defendant Martin Stock, about racially-motivated hiring practices.
As a result of his support for his minority co-workers, plaintiff maintains that he was continually harassed by his white co-workers. He alleges that the individual defendants used "obscene and profane language" towards him, engaged in "retaliation . . . in the form of publicly humiliating" him, and subjected him to "extremely pornographic materials designed to offend and upset him." He also claims that, despite filing grievance claims with his union representative, nothing was done to correct the situation.
As a consequence of the alleged workplace harassment, plaintiff claims that he suffered "severe and acute emotional and psychiatric distress." Eventually, plaintiff had a mental "break down" and was placed on authorized medical disability leave from October 2000 through August 2001. During this period, plaintiff received treatment for his ailments.
When he returned to work in the latter part of 2001, plaintiff claims that "the harassment, intimidation, and retaliation by the defendants intensified." He asserts that he complained to supervisors, including the plant manager, but the perceived offenders were not disciplined and conditions deteriorated. Plaintiff was placed on a second medical leave in April 2002 and remained on leave when he filed his complaint in the Law Division six months later.
About one month after plaintiff returned to his job in August 2001, he began secretly recording his co-workers' conversations. He did this by strapping a microcassette recorder to his ankle. Between September 2001 and May 2002, plaintiff recorded forty-eight audiotapes of his co-workers' conversations. Plaintiff asserted that these tapes contained proof of his claims against defendants.
Plaintiff filed his complaint against defendants in the Law Division on October 18, 2002, alleging violations of the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and the common-law tort of intentional infliction of emotional distress. After defendants briefly removed the action to the federal district court, the case was remanded back to the Law Division in May 2003.
As part of the initial discovery, plaintiff provided defendants with copies of the forty-eight audiotapes in April 2003. Defendants then retained a certified reporting service, Brittany Transcription ("Brittany"), to transcribe a sample of the tapes to determine if they were audible. Accordingly, Brittany transcribed about seven pages of a conversation that took place between plaintiff and various co-workers in August 2001. This sample conversation contained nothing of a discriminatory character. According to defendants, Brittany informed them that, although "substantial portions" of the tapes were audible, there were large portions that were of poor quality. The transcriber advised that, without the assistance of someone who was present for these conversations, it was impossible to ascertain who was speaking at any given time.
Upon learning of these impediments from their own transcriber, defendants requested the trial court to order plaintiff to bear the burden of having the tapes transcribed. According to defendants, the court in a telephone conference agreed to require plaintiff to produce such transcriptions, although the case management order issued on September 30, 2005 did not specify that obligation.
Plaintiff failed to produce the transcriptions, as well as certain other discovery that had been sought by defendants. Defendants consequently moved to compel discovery. Their motion resulted in a discovery order issued on December 2, 2005. Among other things, this order specifically required plaintiff to "provide copies of all documents responsive to [defendants'] discovery requests, deficiency letter and tape logs, within [twenty] days . . . ."
However, rather than providing defendants with a certified transcription of the tapes, plaintiff's counsel instead produced over one hundred pages of what he purported were "[w]ritten notes from [p]laintiff detailing information on tapes." These handwritten "notes" apparently set forth only excerpts from the tapes, rather than the entirety of their contents. Sprinkled throughout the notes were plaintiff's own typed summaries, explanatory statements, and personal opinions.
As a result of plaintiff's failure to provide transcriptions of the tapes from a certified transcriber, defendants moved in February 2006 to dismiss the case under R. 4:23-5(a)(1) for failure to provide discovery, for sanctions, and, alternatively, for summary judgment as to the individual defendants. In opposing the dismissal of his lawsuit, plaintiff attested to the court that the tapes "contain ...