September 5, 2008
STEVEN B. WONOKAY, PLAINTIFF-APPELLANT,
NEW JERSEY DEPARTMENT OF HUMAN SERVICES, YOUTH AND FAMILY SERVICES DIVISION, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-29-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2008
Before Judges Graves, Sabatino, and Alvarez.
On December 29, 2004, plaintiff Steven B. Wonokay filed a complaint against his former employer, the State of New Jersey, Department of Human Services, Division of Youth and Family Services (DYFS), alleging he was subjected to a hostile work environment and employment discrimination because of his national origin, in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Plaintiff appeals from a summary judgment order dated March 19, 2007, dismissing his complaint.
On appeal, plaintiff presents the following arguments:
THE TRIAL JUDGE INCORRECTLY APPLIED THE STANDARD OF REVIEW IN GRANTING SUMMARY JUDGMENT TO DEFENDANT.
THE INCIDENTS OF NATIONAL ORIGIN OR ANCESTRY HARASSMENT ABOUT WHICH WONOKAY COMPLAINS ARE SUFFICIENTLY SEVERE OR PERVASIVE TO ESTABLISH A HOSTILE WORK ENVIRONMENT.
WONOKAY'S CLAIM OF DIFFERENTIAL TREATMENT IN COUNT TWO OF HIS COMPLAINT ON THE BASIS OF NATIONAL ORIGIN OR ANCESTRY IS PROPERLY ESTABLISHED.
APPELLANT HAS ESTABLISHED A CASE OF DISCRIMINATORY DISCHARGE AS ALLEGED IN COUNT THREE OF HIS COMPLAINT.
APPELLANT HAS PROVIDED SUFFICIENT EVIDENCE OF EXTREME AND OUTRAGEOUS CONDUCT THAT WOULD REQUIRE DEFENDANT TO BE LIABLE FOR PUNITIVE DAMAGES.
After reviewing the evidentiary materials in light most favorable to plaintiff, Rule 4:46-2(c), we conclude plaintiff's arguments do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Paul T. Koenig in his oral decision on March 16, 2007, with only the following comments.
Plaintiff, a black male born in Liberia in 1957, began his employment as a DYFS Youth Worker at the Ewing Residential Treatment Center (ERTC), a facility for emotionally disturbed children in Trenton, on November 8, 1999. Plaintiff was required to closely supervise the children at all times. When the children participated in an "off-campus" activity, such as a community outing or field trip, DYFS's written policy required its staff to keep the children "in visual sight" at all times.
On December 5, 2001, Mertis Smith, plaintiff's immediate supervisor, directed plaintiff to take L.S., a sixteen-year-old boy, off grounds to celebrate his birthday. Smith instructed plaintiff to take L.S. out to dinner and to buy him a remote control car as a present. According to Smith, she gave plaintiff "$200.00 to be used for the purchase of the remote control car, and $30.00 to be used for dinner." Plaintiff was told "to return to the ERTC campus as soon as possible after the shopping and dinner activities because a birthday cake celebration was planned for the resident."
Plaintiff left the ERTC with L.S. at approximately 5:30 p.m. and, according to plaintiff, they returned to the ERTC "around 9:45 p.m." Instead of taking L.S. to buy a remote control car and to dinner, plaintiff took L.S. to the movies. When plaintiff returned to the ERTC with the child, Smith asked him why they were "off-campus for such an extended period of time and why they did not have a remote control car." In response, plaintiff stated he took L.S. to the movies, which lasted for three hours, because the resident asked to go to the movies.
The next day, on December 6, 2001, plaintiff spoke to Zoraida Morales, ERTC Resident Services Specialist II, regarding his discussion with Smith on December 5, 2001. Plaintiff told Morales he took L.S. to the movies instead of shopping, and plaintiff admitted "he watched the resident enter the theater alone and then waited in a van outside of the theater for approximately three hours." Morales told plaintiff "that he had left a resident unsupervised and that he should never leave a resident unattended."
On December 10, 2001, Morales discussed the incident with L.S. According to Morales, L.S. told her he met his girlfriend at the movies, and L.S. confirmed that plaintiff did not accompany him into the theater. L.S. also indicated he had arranged to meet his girlfriend at the theater prior to December 5, 2001.
On January 3, 2002, Morales contacted the Office of Child Abuse Control to report the possible neglect of L.S. who had been left unattended by plaintiff. In addition, an administrative investigation was begun by DYFS to establish whether it should initiate a disciplinary action against plaintiff.
As a result of the administrative investigation plaintiff was charged with Neglect of Duty and Insubordination. On March 25, 2002, plaintiff was served with a Preliminary Notice of Disciplinary Action and was suspended with pay. But on April 6, 2002, plaintiff was suspended without pay, and he was notified that his employment would be terminated.
Plaintiff appealed and a departmental hearing was conducted on May 7, 2002. On May 16, 2002, the hearing officer determined DYFS proved both charges by a preponderance of the evidence, and the hearing officer sustained the decision to terminate plaintiff's employment. On May 24, 2002, plaintiff was served with a Final Notice of Disciplinary Action, removing him from his position as a Youth Worker effective April 6, 2002.
On October 10, 2002, plaintiff appealed to the Department of Personnel, Merit System Board. However, his request for a hearing was denied because he failed to file his appeal within twenty days after his receipt of the Final Notice of Disciplinary Action.
On November 7, 2002, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging discrimination based on his national origin. In his sworn statement to the EEOC, plaintiff did not dispute he took L.S. to "the movie of his choice" on December 5, 2001, and he acknowledged waiting outside while L.S. was in the theater:
Over the request of the 16-year-old resident and the recommendation of the Treatment Team, the Cottage Supervisor instructed me to take the resident to dinner and purchase a remote control car. I was given $230.00 to cover the expense of the birthday celebration. I admit that on December 5, 2001, I took the 16-year-old to the movie of his choice and, purchased him a dinner from a fast food restaurant. I waited outside while the resident was inside watching the film. Because the time away from the facility was far spent, I forewent the purchase of the remote control car and returned to the grounds.
Thus, in his EEOC complaint, plaintiff admitted he disregarded the instructions he received from his supervisor, and he also admitted he failed to properly supervise L.S. while he was in the movie theater.
With regard to plaintiff's hostile work environment claim, the trial court determined the comments and conduct alleged by plaintiff failed to meet the "severe or pervasive" test of Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993), and the record fully supports that finding. The court also concluded plaintiff failed to either refute or discredit defendant's legitimate, non-discriminatory reasons for his discharge and, once again, the record supports that finding.
To defeat a summary judgment motion, when an employer alleges legitimate reasons for an adverse employment action, the employee must either discredit the proffered reasons or adduce evidence that "allows the factfinder to infer that discrimination was more likely then not a motivating or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994). In this case, Judge Koenig correctly concluded plaintiff failed to do "what he needs to do, he hasn't carried his burden." We agree that plaintiff's conclusory assertions are insufficient to require resolution by a jury.
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