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Flipping v. City of Atlantic City

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 31, 2009

RANDALL FLIPPING, PLAINTIFF-APPELLANT,
v.
CITY OF ATLANTIC CITY, ATLANTIC CITY POLICE DEPARTMENT AND JOSEPH NOLAN, JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1963-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 2, 2009

Before Judges Carchman and Sabatino.

Plaintiff Randall Flipping, a retired member of the Atlantic City police force, appeals the Law Division's order granting summary judgment to defendants, City of Atlantic City ("the City"), the Atlantic City Police Department ("the Department"), and Captain Joseph Nolan, dismissing plaintiff's complaint alleging violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 ("the LAD"). We affirm.

Plaintiff, who is African-American, worked for the Department from 1990 through 2005. During the times relevant to his complaint, plaintiff was assigned to patrol duty and then to the Department's general investigations unit. Plaintiff alleges that from 1998 through 2005, defendants denied him transfer opportunities within the Department because of his race. He further alleges that defendants forced him to work in a race-based hostile work environment and that they retaliated against him for complaining about his alleged discriminatory treatment.

More specifically, plaintiff alleges that he was improperly denied a requested transfer to the Department's Information Technology ("IT") Unit in February 1998, May 2000, August 2001, and June 2003. Plaintiff states that on each of these occasions, the Department filled the IT openings with a Caucasian police officer. He also contends that although the Department eventually approved in April 2004 his transfer to the IT Unit, defendants failed to implement that transfer before plaintiff voluntarily retired from the police force in July 2005. Plaintiff further contends that he was improperly reprimanded by Captain Nolan in February 2000 for wearing an unauthorized wool hat while on duty.

Plaintiff filed his complaint in the Law Division in June 2004. He contends that defendants thereafter retaliated against him for bringing the lawsuit, specifically by pursuing three separate internal investigations against him, none of which resulted in discipline.

Defendants categorically deny plaintiff's claims of disparate treatment, hostile work environment, and reprisal. They contend that the IT positions were filled in a legitimate, non-discriminatory fashion, noting that plaintiff was unavailable to serve in the IT Unit for much of the relevant time frame because of his absence for National Guard service. Defendants also note that the ultimate approval of plaintiff's transfer in 2004 was conditioned upon the Department backfilling his then-existing position with another officer and that the IT position was held open for that reason for more than a year after plaintiff's retirement. Defendants further assert that there were legitimate reasons for the Department to have investigated plaintiff's conduct at work, including his misuse of the Department's computer system and his unauthorized access into files stored in Captain Nolan's office computer.

Following discovery, defendants moved for summary judgment. After considering the record as a whole, the trial court granted defendants' motion in its entirety. In particular, the court ruled that those portions of plaintiff's complaint, alleging wrongful conduct occurring more than two years before his filing of a complaint on June 28, 2004, were time-barred under N.J.S.A. 2A:14-2(a). With respect to events occurring on or after June 28, 2002, the court concluded that there were no genuine issues of material fact to support plaintiff's various contentions that he had been denied a transfer because of his race, that he had been subjected to a hostile work environment, or that he had been the target of illegal retaliation.

Plaintiff appeals, contending that the trial court erred in granting summary judgment. In particular, he argues that the trial court erred in: (1) finding his claims relating to the transfer denials in 1998, 2000 and 2001 and the 2000 wool hat incident were time-barred; (2) concluding that the June 2003 transfer denial did not comprise an act of disparate, race-based, treatment; (3) rejecting his claim of constructive discharge; (4) dismissing his claims of retaliation; and (5) dismissing his claims of supervisory liability against Nolan.

We have fully considered plaintiff's arguments in light of the governing law, viewing the record in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). Having done so, we affirm the entry of summary judgment, essentially for the cogent reasons set forth in Judge Daryl Todd's detailed written decision of June 26, 2007. Only a few additional comments are in order.

The motion judge's dismissal of plaintiff's claims concerning the transfer denials in 1998, 2000, and 2001 as untimely is consistent with the two-year limitations statute governing employment claims under the LAD. See N.J.S.A. 2A:14-2(a); Montells v. Haynes, 133 N.J. 282, 286 (1993). Denials of transfer requests, in particular, are discrete employment decisions ordinarily treated as separate actionable events. See AMTRAK v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 2073, 153 L.Ed. 2d 106, 123 (2002). We concur with Judge Todd that plaintiff failed to establish a sufficient "continuing violation" to toll the limitations period for the pre-2002 conduct. Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999).

With respect to plaintiff's claims of a hostile work environment, including the 2000 wool hat incident, we note Judge Todd's observation that "[a]t no time between 1990 and 2005, at least insofar as the court is aware, did plaintiff verbally complain of racial animus to a superior as to a fellow officer." In fact, at depositions, plaintiff denied a belief that race played a role in the selection of a white officer for the IT transfer in 1998.

The subsequent transfer decisions do not bespeak a wrongful discriminatory pattern. That is particularly so because plaintiff was not available while he was on active military duty with the National Guard to assume immediately the necessary duties in the IT Unit, which was short-staffed at the time. The employer had a legitimate, non-discriminatory business reason to have those IT functions carried out without interruption. Myers v. AT&T, 380 N.J. Super. 443, 452-53 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006) (recognizing in a LAD case the employer's defense of a legitimate, non-discriminatory reason for an adverse employment action). Plaintiff does not claim any violations of federal law alleging that he was improperly discriminated against because of his status in the National Guard. The Department's ultimate approval of plaintiff's transfer request in 2004, which was reasonably made contingent upon backfilling his existing position, belies the alleged pattern of discrimination.

The motion judge also properly rejected plaintiff's constructive discharge claim. "'[C]onstructive discharge requires not merely severe or pervasive conduct, but conduct that is so intolerable that a reasonable person would be forced to resign rather than continue to endure it.'" Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 166 (App. Div. 2005); (quoting Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 28 (2002)). The burden of proof in a constructive discharge claim requires even greater evidence of "egregious circumstances than that required to establish a hostile work environment." The proofs must show a "sense of outrageous, coercive and unconscionable" acts. Ibid.

Here, the motion judge found that "[t]he record before the court is barren of anything suggesting racial discrimination." The fact that, each time plaintiff requested to be transferred to an open position in the IT Unit, the Department ultimately chose a white officer instead, is not sufficient, "by itself, to infer discrimination." See Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 307 (App. Div. 2000) (holding that an "inference of discrimination does not arise anytime a single member of a non-protected group was allegedly treated more favorably than one member of the protected group."). "Anti-discrimination laws do not permit courts to make personnel decisions for employers . . . [t]hey simply require that an employer's personnel decisions be based on criteria other than those proscribed by law." Id. at 308 (quoting Peper v. Princeton University Board of Trustees, 77 N.J. 55, 87 (1978)). We also point out that when plaintiff voluntarily retired from the Department in 2005, he promptly accepted a full-time position with the National Guard, where he had served for a substantial portion of the preceding years.

Furthermore, we are satisfied that plaintiff's claims of retaliation were inadequately substantiated. The Department's investigations were manifestly justified. Plaintiff admits that he downloaded movies and other materials on his office computer, in violation of departmental policy. See Esposito v. Twp. of Edison, 306 N.J. Super. 280, 291 (App. Div. 1997) (holding that no prima facie case of discrimination under the LAD is tenable where plaintiff concedes his infraction of a pre-existing workplace policy). Additionally, the Department had ample reason to investigate the report that plaintiff had improperly accessed Captain Nolan's computer files and had left a message icon on Nolan's computer urging him to "[r]emember the wool hat [incident]" and advising that the "network is not secure." Although plaintiff was not disciplined for these activities, the fact of the Department's investigation is not, in and of itself, actionable discrimination. See Beasley v. Passaic County, 377 N.J. Super. 585, 606-07 (App. Div. 2005).

We are also satisfied that plaintiff failed to establish genuine issues of material fact that could reasonably demonstrate supervisory liability on the part of Captain Nolan, even if the court were to accept plaintiff's contention that the Captain exercised a supervisory role over him. See Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 123 (1999).

The balance of plaintiff's arguments lack sufficient merit to warrant comment in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20090331

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