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Bienvenido Montalvo and v. State of New Jersey

February 28, 2011

BIENVENIDO MONTALVO AND ILEANEXIS MONTALVO, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF CORRECTIONS, NORTHERN STATE PRISON, SGT. DARRON DAYE, INDIVIDUALLY, SGT. WILLIAM ANDERSON, INDIVIDUALLY, LT. W.L. MUNGRO, INDIVIDUALLY, CAPT. RICHARD GILGALLON, INDIVIDUALLY, CHIEF VINCENT SANDERS, INDIVIDUALLY, ASSIST. SUPERINTENDENT ERIC STOKES, INDIVIDUALLY AND ADMINISTRATOR LYDELL SHERRER, DEFENDANTS-RESPONDENTS,



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3670-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2010 - Decided Before Judges Messano and Waugh.

Plaintiff Bienvenido Montalvo appeals from the grant of summary judgment dismissing his complaint against defendants for alleged violations of the anti-retaliation provision of the Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49. At all relevant times, plaintiff was employed as a senior corrections officer by the Department of Corrections (DOC) at Northern State Prison (NSP). The named defendants occupied various positions of authority at the prison, specifically, Lydell Sherrer was the Administrator; Eric Stokes was an Assistant Superintendent; Vincent Sanders was Chief; Captain Richard Gilgallon, Lieutenant W.L. Mungro, Sergeant William Anderson, and Sergeant Darron Daye were all supervising officers at NSP. Plaintiff's complaint alleged a violation of the LAD based upon "national origin" (count one); violation of the LAD based upon a hostile work environment (count two); violation of the LAD based upon retaliation "because [he] made complaints in 2003 with the NSP EE Department and 2004 with the EEOC" (count three); violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (count four); bias crime in violation of N.J.S.A. 2A:53A-21 (count five); breach of the implied covenant of good faith and fair dealing (count six); intentional infliction of emotional distress (count seven); and defamation per se (count eight).*fn1

Defendants' motion for summary judgment was granted as to all of plaintiff's claims except count one, i.e., "[p]laintiff's claim of LAD discrimination based on [his] ethnic background." After plaintiff's motion for reconsideration was denied, he entered into a consent order that dismissed the remaining claim with prejudice.

On appeal before us, plaintiff challenges only the grant of summary judgment on count three, his LAD retaliation claim. He contends that the motion judge "[m]isapplied the [s]ummary

[j]udgment [s]tandard [b]y [n]ot [p]roviding [him] [w]ith [a]

[r]easonable [i]nference." We have considered this argument in light of the record and applicable legal standards. We reverse.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Id. at 230.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide whether the "motion judge's application of the law was correct." Atl. Mut., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's legal conclusions. Ibid.

We discern the following facts from the motion record when viewed in a light most favorable to plaintiff.*fn2

In January 2003, plaintiff filed a written "Discrimination Complaint" with NSP's Assistant Superintendent Flordeliza Medel. He alleged he was "constantly under a microscopic watch of [his] supervisor."*fn3 Plaintiff related various incidents, including one in which his "P.B.A. representative" told him to "watch [his] back because" Daye had "mentioned to an officer that he was out to get [plaintiff]." Medel apparently received plaintiff's complaint and forwarded it to Sherrer, who in turn forwarded it on the same day to the Director of DOC's Equal Employment Division (EED) in Trenton. There are no documents in the record that reveal what happened thereafter. However, in an affidavit plaintiff filed opposing defendants' summary judgment motion, he claimed that his complaint "did not go forward because EED said that [he] did not articulate a type of discrimination."

In November 2003, plaintiff filed two written "Special Reports" to the "Director of Custody Operations" criticizing treatment he was receiving from his supervisor, a "Lt. Boyd."

In his affidavit, plaintiff described a series of events that transpired in June 2004. He claimed that while he was assigned to duty in one of the guard towers, prison authorities orchestrated a "'sting'" operation in which Anderson went onto the roof of the facility to simulate an escape. Plaintiff claimed that he alone was disciplined for not seeing Anderson, and that the other three tower guards, all non-Hispanic, were not disciplined even though they too failed to report the "escape." Plaintiff ...


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