On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-6446-06, L-6244-06 and L-5516-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 6, 2010
Before Judges Cuff, Sapp-Peterson and Simonelli.
In these consolidated and back-to-back appeals,*fn2 we review orders granting summary judgment to defendant Public Service Electric and Gas Company (PSE&G) and denying plaintiffs' motions for summary judgment. We affirm.
Todd Larmer, Louis Piantadosi, and Roosevelt Sills were employees of PSE&G; Sills supervised Larmer and Piantadosi. Each filed a complaint seeking relief pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The three complaints emanate from an alleged incident that occurred at a job site on July 29, 2004, and the reaction by PSE&G to Sills' report of the actions taken by Larmer and Piantadosi against him.
According to Sills, on July 29, 2004, Larmer and Piantadosi enacted a mock lynching directed at him. Sills is African- American; Larmer and Piantadosi are Caucasian. Sills reported the incident the next day and PSE&G immediately commenced an investigation. Although PSE&G was unable to substantiate Sills' complaint, it terminated Larmer and Piantadosi.
The two terminated men filed a grievance and soon thereafter PSE&G, Larmer, and Piantadosi agreed to submit the grievance to mutually binding arbitration in accordance with the collective bargaining agreement. The arbitrator found insufficient evidence to terminate Larmer and Piantadosi and ordered them reinstated to their former positions with back pay.
Following the reinstatement of Larmer and Piantadosi, Sills left work on medical leave, which he claimed was attributable to the stress of working with these men. PSE&G offered to transfer Sills from Oradell to Jersey City. He declined, but PSE&G decided to effectuate the transfer over his objection.
On July 26, 2006, Sills filed a complaint against PSE&G and several PSE&G employees*fn3 in which he alleged that PSE&G and the named employees created a hostile work environment for him due to his race in violation of the LAD (Count One); committed acts of retaliation against him in violation of the LAD (Count Two); committed acts of retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14 (Count Three); intentionally harassed him (Count Four); engaged in intentional infliction of emotional distress (Count Five); negligently hired, supervised, and retained Larmer and Piantadosi (Count Six); committed acts in an attempt to effectuate a wrongful or constructive discharge (Count Seven); committed acts that amount to prima facie tort (Count Eight); portrayed him in a false light (Count Nine)*fn4 ; and loss of consortium (Count Ten).
Louis Piantadosi filed a complaint on August 29, 2006, against PSE&G in which he sought compensatory and punitive damages for wrongful termination (Count One), reverse racial discrimination in violation of the LAD (Count Two), breach of the covenant of good faith and fair dealing (Count Three), breach of contract (Count Four), and intentional infliction of emotional distress (Count Five). Larmer filed a similar complaint, except he named Sills as a defendant and also sought relief for other unlawful employment practices by PSE&G in violation of the LAD and CEPA.
Following discovery, PSE&G filed summary judgment motions to dismiss all claims asserted by Larmer, Piantadosi, and Sills. Larmer and Piantadosi filed summary judgment motions to dismiss Sills' claims against them. By orders dated December 28, 2008, the motion judge granted all motions. Sills' motion for reconsideration was denied on February 6, 2009.
I On appeal, we utilize the same standard to review an order granting summary judgment as the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must review the entire record to determine if there exists a genuine issue of material fact which precludes entry of summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In conducting this review, we must view all facts and the reasonable inferences that may be drawn from those facts in the light most favorable to the non-moving party. Ibid. On the other hand, "[i]f there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact" to allow denial of the motion. Ibid. The following facts supporting each plaintiff's case are presented in that light.
Roosevelt Sills has worked for PSE&G since 1979. Initially employed as a laborer, Sills was promoted to a supervisory position in 1994. In 1997, Sills was transferred to the Oradell District and remained there until transferred to the Jersey City District in 2006.
Larmer commenced his employment with PSE&G in 1987 as a laborer. On July 29, 2004, he was a Street Leader in the Oradell District and Sills supervised his work.
Piantadosi commenced his employment with PSE&G in 1981. In July 2004, he was also assigned to the Oradell District and Sills supervised his work. All were assigned to repair gas leaks.
On July 29, 2004, Sills, Larmer, and Piantadosi responded to 434 Hillsdale Avenue in Hillsdale to repair a gas leak occasioned by a PSE&G crew installing a pole. PSE&G received the report of the gas leak about 4 p.m. The area in which they worked was in front of a busy nail salon. Piantadosi remarked at the worksite that the markings of utilities, known as "mark-outs," were missing or inadequate. According to Piantadosi, Sills told the crew, including Piantadosi and Larmer, to get to work in spite of the known safety concerns if utilities are not properly marked.
On July 30, 2004, Sills reported that Larmer and Piantadosi conducted a mock lynching and sang "Ring Around the Rosie" the previous day at the Hillsdale worksite. He composed a written statement and spoke to his immediate supervisor early on July 30. Sills' supervisor took his report to the engineer, who brought it to the attention of a manager and eventually the report reached Clayton, the Operation and Resource Manager. Clayton consulted two senior managers. An attorney employed by PSE&G interviewed Sills. Larmer was also interviewed on July 30. He denied the allegations and stated "it's committing suicide to do such a thing in the atmosphere of PSE&G." The employer also interviewed other workers at the worksite. None of these workers stated they heard or saw any inappropriate comments or gestures on July 29. The owner of the nail salon stated that she neither saw nor heard anything inappropriate by the PSE&G work crew. The police officer monitoring traffic at the site reported that he did not observe the incident reported by Sills. After further consultation, PSE&G terminated Larmer and Piantadosi on August 30, 2004. When deposed, Clayton testified that the managers accepted Sills' credibility, decided to support the supervisor, and believed the reprehensible nature of the conduct required termination of the two men.
Larmer and Piantadosi filed a grievance. Pursuant to the terms of the collective bargaining agreement, the men and PSE&G agreed to submit the dispute to binding arbitration. The arbitrator found PSE&G did not have just cause to terminate either man. Both men were reinstated to their former positions with back pay and seniority.
When Larmer and Piantadosi were reinstated, they returned to the Oradell District and were supervised by Sills. Sills did not protest, but Larmer made a request through his union representative not to work with Sills. A few days after both men returned to work, Sills left work for a few days because he was so upset. Sills testified that he could not work in that environment and later went on disability. On the two days that he worked when Larmer and Piantadosi worked under his supervision, he learned that union representatives called the district engineer and manager to state that Larmer and Piantadosi did not want him to come to their worksites.
Clayton and Cistaro believed the best course at that time was to separate the men. They were also concerned that they could not ensure that Sills would never have to supervise a work crew containing Larmer or Piantadosi. Because the collective bargaining agreement in effect at that time would not allow transfers of Larmer and Piantadosi from the Oradell facility, Clayton offered Sills a transfer to Jersey City. He declined. While on leave, Clayton discussed with Sills a transfer to Jersey City three times. While he was on disability, Clayton and Cistaro decided to transfer him to Jersey City without loss of job title, responsibilities, or compensation. The transfer also did not cause a significant increase in commuting time for Sills. When he returned from disability leave, Sills reported to Jersey City.
Sills also testified that no PSE&G manager ever expressed any dissatisfaction with him for his complaint against Larmer and Piantadosi. No action was taken against him following the termination of Larmer and Piantadosi. Yet, Sills explained that he felt PSE&G retaliated against him when he was transferred to Jersey City. He explained, "they did what they have to do to please the union more than - - made me come to be the victim to some degree. I'm at Jersey City doing the best I can, but you know, I - - I'm not that happy because I always feel like I'm the victim and my reputation just follow me wherever I go, and everybody sees me at what happened in Oradell. That's all they know of me. And I had very uncomfortable feelings."
Piantadosi's claim that PSE&G imposed less severe discipline on African-American employees than on Caucasian employees is supported by a single response to an interrogatory and documents to the identified employees from PSE&G. Piantadosi stated as follows:
Upon information and belief, Timmie Farrow was accused of unacceptable conduct in that he fought with a co-worker who is Caucasi[a]n, yet he was not terminated;
Upon information and belief, Janet Mack, engaged in aggressive and threatening behavior towards her co-workers in that she threatened to blow up the shop yet she was not terminated;
Upon information and belief, Roy Brown, engaged in serious misconduct, yet he was not terminated;
Upon information and belief, James Austin, engaged inappropriate conduct when he told his Supervisor who is also African-American to go see his white daddy, yet he was not terminated.
Farrow received a letter from PSE&G advising him that his conduct was unacceptable. Austin received a letter from the Area Distribution Manager that his comment undermined the leadership of supervision. Austin was also one of the employees assigned to replace Piantadosi after his termination.
Sills was the subject of three grievances filed in 1999, 2001, and 2002. On May 19, 1999, the union filed a grievance alleging Sills unfairly harassed an employee. On March 30, 2001, the union filed a grievance on behalf of the employee who was the subject of the 1999 grievance. The employee stated that Sills threatened him. On October 3, 2002, the union filed a grievance on behalf of another employee who alleged harassment by Sills. The record reveals that the 1999 grievance was "Pulled Out as Per Nunz." The record contains no details of the 2002 grievance. The 2001 grievance states that "At the start of a meeting (3-29-01) between M. Nunziato and R. Sills (about a problem with a mark out), Mike was told the meeting was not a coaching/counseling session. When at the end of the ...