On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1442-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Simonelli.
Plaintiffs are or were employed by Trenton Water Works (TWW), a municipal utility owned and operated by the City of Trenton (the City). In April 2000, they filed a complaint in which they alleged that their efforts to obtain promotions were frustrated and blocked by defendants due to their race, and that defendants created and perpetuated a hostile work environment. In an amended complaint filed in July 2002, plaintiffs alleged that defendants engaged in retaliatory acts after plaintiffs commenced this action. Plaintiffs appeal two orders granting summary judgment in favor of defendants and dismissing the entirety of their complaint. We reverse.
Each plaintiff worked at the Trenton Water Filtration Plant (the Plant) as a laborer, an operator, or a repairer. A laborer dumps chemicals, cleans the facility, and assists the repairers or mechanics. An operator treats the water, tests the water, and runs the water treatment facility. A repairer fixes things that break down from welding parts to doing some electrical work.
Plaintiff Barry Parker commenced work for the Plant in 1993. He was initially hired as a laborer. Parker was promoted from laborer to repairer in 2000, around the time that the complaint was filed. Plaintiff Carlton Goss also began working at the Plant in 1993, and in 1994 he was promoted from laborer to operator. He was promoted to senior water treatment plant operator on September 18, 2006. Plaintiff Russell Wilson commenced work for the City's building maintenance department in 1991 and was transferred to the position of laborer at the Plant in 1996. Plaintiff Patrick Jackson commenced employment at the Plant as a laborer in 1997, and was promoted to the position of operator in 2001.*fn1 Plaintiff Willard Isabel became a laborer at the Plant in 1992 and became an operator in 1995. All plaintiffs are African-American.
Eric Jackson is the Director of Public Works for the City, which includes the TWW. Eric Jackson is African-American and was not named as a defendant in this lawsuit, but the balance of plaintiffs' supervisors, who are all Caucasian, were named as defendants. Defendant Brandino Cacallori is the general superintendent chief engineer. He does not work onsite at the Plant, and he supervises defendant William Mitchell, the superintendent of the Plant. Mitchell supervises defendant Ronald Lind, the assistant superintendent at the Plant, and defendant John Martin.
Lind is responsible for scheduling all of the operators on a daily basis, which includes dealing with time-off requests. He is also responsible for training the operators and he has been a supervisor to all plaintiffs. Martin supervises maintenance repair and is responsible for scheduling jobs. He described his position as equivalent to that of a foreman.
Parker has an eleventh grade education. He was promoted to become the Plant's first African-American water treatment plant repairer. However, he claims that he only received the promotion after the Director of Public Works issued a specific order to do so. In order to qualify for the promotion, Parker tried to have his work schedule altered so he could take work-related classes. These schedule changes were denied. Parker alleged that his Caucasian co-workers were permitted to change their schedules to attend classes. During his deposition, Parker recounted an incident in which he told Martin and Lenny Watley, "I don't want you to take it personally or anything but you're looking at your first black mechanic." Parker testified that Martin responded, "There will never be a black mechanic here."
Parker also testified that African-American workers are given the dirtiest jobs. For example, he explained that although he has more seniority than another white mechanic, he is still assigned to the dirtiest jobs, like working in the basins thirty feet down in the sludge. Meanwhile a white worker, Kenny Starky, receives the same assignment everyday.
Goss attended high school in Jamaica and college in England, where he received a one year degree in mechanical engineering. He was promoted to operator at the Plant, but he alleged that he was only able to achieve this promotion by utilizing his sick time and vacation time to attend night classes to obtain the required license. He was scheduled for rotating shifts, and like Parker, Goss was unable to alter his work schedule to accommodate these classes, unlike some white employees.
Goss noted that in addition to the Civil Service exam that he took for the promotion, he was also subjected to an individual test created and administered by Mitchell. He never received the results from this test. Goss asserted that shortly after taking the supplemental test, he acquired his T-1 license, which he claimed should have led directly to the promotion he sought. Rather, in 1998, Goss applied for the job of mechanic and attended three interviews, and Martin told him that he could not recommend him for the job because he could not understand Goss's accent. In his affidavit, Goss noted that he spoke English proficiently and his degree in mechanical engineering more than qualified him for the mechanic position. Goss was not promoted until 2006. He claimed that after the lawsuit was filed in 2000, his promotion prospects worsened; he was not promoted even after many people had retired or resigned. Goss also testified at his deposition that he put his name on lists for various promotions, but was never called or interviewed for those positions.
In his affidavit, Wilson stated that, like Goss, when he applied for a promotion to operator in 1996, he was given a test that was created and administered by Mitchell. When Wilson asked for the results, Mitchell told him that he was not qualified for the job because his mathematical skills were insufficient. Wilson alleged that during this same time period a white employee, Michael Volosky, was given the same test. However, Volosky took the test in the front office with Lind and Martin, who allegedly were giving Volosky the answers to the test.
In 1997, Wilson again placed his name on a list for the position of operator. Wilson did not get the position and discovered later that his file had been changed to indicate, "Russell no longer interested." According to Mitchell's secretary, the statement was written in Mitchell's handwriting. Wilson unsuccessfully sought assistance from his union representative. During this time, two white employees, with no prior experience, were hired as operators.
Wilson also testified that he was placed on dump duty even though it was not his turn for that assignment. He was ordered to do jobs that had not been done for years. He admitted that his treatment was likely a combination of age and racial discrimination.
Patrick Jackson graduated from high school and attended two years of auto mechanic technician vocational training. He testified that there were no special educational requirements to become a water treatment plant operator, yet he made numerous attempts to be promoted to that position without success. In 1998, Patrick Jackson informed management that he would like to attend school in order to improve his promotion opportunities. He was not allowed to alter his schedule to accommodate his classes, but two white co-workers were given schedule adjustments by management to attend classes while African-American operators were required to cover their shifts.
At his request, Patrick Jackson was tested by Mitchell for the promotion, but was never provided with the results of those tests. In response to his inquiry regarding his results, Mitchell stated, "Patrick, let me tell you, you're too dumb. You can't even read. You can't even write." Patrick Jackson testified that Volosky took the test in Martin's presence and later become an operator.
On February 7, 2001, Patrick Jackson again attempted to be promoted to operator. He was certified by Civil Service and interviewed for the position, but was denied the promotion because he did not have enough experience. He noted, however, that the job only required one year of experience; he had four years of experience. When asked during his deposition whether he thought that he had been discriminated against because of his race, Patrick Jackson responded:
They're not discriminating because I'm black, no, they're not. What -- what Mr. Jackson is doing and I feel -- I strongly believe this, and I know this for a fact with this Boyd incident, okay? Mr. Jackson hired Mr. Boyd. Mr. Boyd's sister runs Grandville Academy School. So what Mr. Jackson did -- Mr. Jackson had Mr. Boyd's sister hire his sister at the school.
So in the meantime, Mr. Jackson asked -- Mr. Boyd -- Mr. Boyd's sister asked Mr. Jackson can you give my brother a job. So low and behold, he's down the filtration plant.
Isabel completed twelfth grade and was promoted to operator in 1995. Isabel told Mitchell that he wanted to be an operator when the position was posted. He did not get that job, but after going to the union president, Isabel was given the chance to become an assistant operator. He remained in this position for approximately a year before he was promoted to operator. Isabel, like the other plaintiffs, was required to take a non-Civil Service exam. Moreover, he noted that Volosky was able to take the test in Martin's office with Martin providing the answers to him.
Isabel claimed that African-American employees were not allowed to park in assigned parking spots, but other employees were allowed assigned spots. Additionally, Caucasian employees were free to move in and out of the computer room, but African-American employees were not allowed to do so.
Parker claimed that Lind verbally abused him on numerous occasions. Lind would tell Parker, "You gonna to do it my fucking way or not," and he would often curse at Parker. Parker testified that these comments were directed to plaintiffs. At one time, Mitchell told Parker, "You people are all the same," which Parker interpreted to be a racial slur against African- American employees. Isabel testified that Lind also would use the phrase, "you people," in reference to African-American ...