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Meelee Kimber-Anderson, Sherri Franklin, Yedda Mason, Loretta v. the City of Newark

February 25, 2011


The opinion of the court was delivered by: Debevoise, Senior District Judge



This case arises out of claims by several female fire prevention specialists that they were discriminated against and forced to endure a hostile work environment due to the hiring and preferential treatment of unqualified male co-workers. Plaintiffs seek damages from The City of Newark, the Newark Fire Department, and Newark Fire Director David J. Giordano under 42 U.S.C. § 1983 and the New Jersey Law Against Discrimination ("LAD") N.J.S.A. 10:5 et. seq.

Presently before the Court are Motions for Summary Judgment filed by Defendants The City of Newark and Giordano.*fn1 For the reasons set forth below, Defendants' Motion is GRANTED. Plaintiffs' complaint is DISMISSED.


Plaintiffs are five female fire prevention specialists ("FPSs" or in the singular, "FPS") who have worked in the Newark Fire Department since at least 2002. (Giordano SOF ¶ 1)*fn2 . An FPS is a civilian position within the Fire Prevention and Safety Division of the Newark Fire Department.*fn3 As FPSs, Plaintiffs are responsible for inspecting buildings for compliance with the Fire Code, addressing Fire Code violations, issuing permits, and responding to complaints relating to fire prevention and safety. Id.

The State of New Jersey issues a certification to FPSs upon completing defined course work and passing a state administered licensing examination. Id. at ¶ 2. According to job specifications put forth by the Fire Department, this certification is required for the FPS position. (Pl. Ex. N). Some aspects of the job, in particular the inspections and permits associated with a category of building known as a "Life Hazard Use," cannot be legally performed by an FPS who is not certified. (Giordano SOF ¶ 2). Each Plaintiff was properly certified at the time that she was hired as an FPS or shortly thereafter. *fn4

In July of 2006, the Fire Department hired several new FPSs. Id. at ¶ 5. Each was male, and none possessed necessary coursework or licensing to perform Life Hazard Uses. Id. The male FPSs were hired as "provisional" employees, and it appears that they were expected to eventually become certified, though only two ever did. Id. at ¶¶ 5-6. Plaintiffs claim that the male FPSs were unqualified and received preferential treatment because of their sex. (Pl. Br. 1). Plaintiffs further allege that they have suffered a hostile work environment because of the presence of the unqualified male co-workers and the harassment that they received from the same. Id.

Plaintiffs detail various categories of preferential treatment. First, Plaintiffs claim that the male FPSs were hired by the Fire Department through a corrupt process and were not licensed for their positions. (Pl. Br. 7-8). They further argue that the male FPSs were poor employees, who occasionally came to work intoxicated and lacked the skills and the work ethic to perform their jobs effectively. Id. at 12-13. Plaintiffs cite to the requirements promulgated by the city which require that all FPSs be certified for Life Hazard Uses before starting work. (Pl. Ex. N). Plaintiffs also attach deposition testimony supporting their claim that the male FPSs went through an abbreviated hiring process and were ineffective employees.*fn5 (Pl. Ex. M. at 23).

Second, Plaintiffs state that the male FPSs had their coursework paid for by the city and the Plaintiffs, who took certification classes before they were hired, did not. (Pl. Br. 9). In response, Defendants submit that all current city employees were eligible to have their coursework paid for by the city and that two of the Plaintiffs, Youngblood and Wilson, themselves took advantage of this benefit. (Def. Br. 5-6).

Third, Plaintiffs charge that their pay was docked for time spent taking the continuing education classes necessary to maintain their certifications. (Pl. Br. 9). Plaintiffs further testify that the male FPSs regularly left work early to attend certification classes, and speculate that the male FPSs were not docked pay for any time missed. Id. at

20. Defendants take the position that the male and female FPSs had access to the same continuing education classes and were subject to the same policies with respect to continuing education. (Def. Br. 6).

Fourth, Plaintiffs allege that three of the male FPSs were given the use of city vehicles and the Plaintiffs were instead required to use their own vehicles to carry out their inspection duties as FPSs. (Pl. Br. 10). Defendants respond that all FPSs were entitled to either the use of a city vehicle or a vehicle stipend and that all Plaintiffs received the stipend. (Def. Br. 8-9). Defendants further note that only a few vehicles were available for FPS use during the relevant time period, and that one of the male FPSs given use of a city vehicle was not merely an FPS, but also the city's only Hazmat Inspector. Id. at 10. Fifth, Plaintiffs complain that they were required to do additional work because the unqualified male FPSs could not perform duties related to "Life Hazard Uses." (Pl. Br. 16). Plaintiffs further object that they were required to train the unqualified male FPSs without any additional compensation. Id. at 23. Defendants state in response that Plaintiffs' hours were set by collective bargaining agreement and that they were not required to work any additional hours because of the hiring of new FPSs. (Def. Br. 6). Defendants also submit that all new FPS hires are assigned for training by more experienced personnel, and that Plaintiffs themselves were trained in this fashion. Id. at 7.

Sixth, Plaintiffs claim that one male FPS received a cell phone paid for by the city. (Pl. Br. 12). Defendants explain that the male FPS who received the cell phone was the city's lone Hazmat Inspector and needed to be reachable at all times. (Def. Br. 8). Defendants further clarify that all FPSs, including Plaintiffs, were issued "chirp" phones to enable them to maintain contact with other individuals within the fire department. Id.

Last, Plaintiffs complain that one male FPS, George Smith, was paid more than they were. (Pl. Br. 14). Defendants respond that Smith was paid more pursuant to an executive order approved by the mayor and that there is no evidence that his salary was in any way motivated by gender. (Def. Br. 35).

In addition to preferential treatment accorded to the male FPSs, Plaintiffs complain of a hostile work environment within the Fire Prevention and Life Safety Division. (Pl. Br. 1). In particular, Plaintiffs charge that the "special" and "unfair" hiring of the male workers and the "preferential treatment" that they received once employed created an "atmosphere" of "animosity and resentment." Id. at 22. Plaintiffs further allege that on two occasions a Plaintiff was called a "bitch" or otherwise harassed by the male FPSs. Id. Defendants argue that all of Plaintiffs' supervisors were female, that Plaintiffs were satisfied with their interactions with those supervisors, and that mere resentment over alleged preferential treatment coupled with a few isolated cases of improper conduct does not support a hostile work environment claim. (Def. Br. 44)

On the basis of these facts, Defendants move for summary judgment.


A. Standard of Review

Summary judgment is proper where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Rule 56(a). For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). For a fact to be material, it must have the ability to "affect the outcome of the suit under governing law." Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.

In a motion for summary judgment, the moving party has the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear the burden of proof at trial, the moving party may discharge its burden by showing that there is an absence of evidence to support the non-moving party's case. Id. at 325. If the moving party can make such a showing, then the burden shifts to the non-moving party to present evidence that a genuine issue of fact exists and a trial is necessary. Id. at 324. In meeting its burden, the non-moving party must offer specific facts that establish a genuine issue of material fact and do not merely suggest "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

A party must support its assertions that a fact cannot be or is genuinely disputed "by (A) citing to particular parts of materials in the record.or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Rule 56(c)(1). If a party "fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may.(2) consider the fact undisputed for purposes of the motion.." Rule 56(e).

In deciding whether an issue of material fact exists, the Court must consider all facts and their reasonable inferences in the light most favorable to the non-moving party. See Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The Court's function, however, is not to weigh the evidence and determine the truth of the matter, but, rather, to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 ...

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