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Steven Brodie, Jr. v. Gloucester Township; Cindy Rau-Hatton

February 1, 2012

STEVEN BRODIE, JR.
PLAINTIFF,
v.
GLOUCESTER TOWNSHIP; CINDY RAU-HATTON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS FORMER MAYOR; DAVID MAYER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR; TOM CARDIS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BUSINESS ADMINISTRATOR; GABE BUSA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS FORMER DIRECTOR OF PUBLIC WORKS; LEN MOFFA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF PUBLIC WORKS AND FORMER SUPERVISOR OF PARKS AND RECREATION;
DENISE WOLF, INDIVIDUALLY AND IN HER CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; DAVID MCMURRAY, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION;
MARY DORAZO, INDIVIDUALLY AND IN HER CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; CHERYL SPANGLE, INDIVIDUALLY AND IN HER CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; PAULETTE RAPPA, INDIVIDUALLY AND IN & HER CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; CRYSTAL EVANS, INDIVIDUALLY AND IN HER CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; EUGENE LAWRENCE, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; STEVEN HIRSCHBUL, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; SHANNON MORTON, INDIVIDUALLY AND IN HER CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; VIRGINIA VARRELL, INDIVIDUALLY AND IN HER CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; SHELLEY LOVETT, INDIVIDUALLY AND IN HER CAPACITY AS A MEMBER OF THE HUMAN RELATIONS COMMISSION; HUMAN RELATIONS COMMISSION OF GLOUCESTER TOWNSHIP; DAVID T. POMIANEK, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERVISOR OF PARKS AND RECREATION;
MICHAEL DORAZO, JR., INDIVIDUALLY AND IN HIS CAPACITY AS SUPERVISOR OF PARKS AND RECREATION, DEFENDANTS.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

ORDER MEMORANDUM OPINION

This matter is before the Court on motions to dismiss the Complaint filed by Defendants Gloucester Township, Cindy Rau-Hatton, David Mayer, Tom Cardis, Len Moffa, the Human Relations Commission of Gloucester Township, Denise Wolf, David McMurray, Mary Dorazo, Cheryl Spangle (deceased), Paulette Rappa, Eugene Lawrence, Steven Hirschbul, Shannon Morton, Virginia Varrell, and Shelley Lovett [26], Gabe Busa and Crystal Evans [27], and Michael Dorazo, Jr. [32], and on a motion for summary judgment filed by Defendant David T. Pomianek [45].*fn1

Background

Plaintiff Steven Brodie, Jr. filed the Complaint in this matter on April 4, 2011 pursuant to 42 U.S.C. §§ 1981 & 1983. Plaintiff, an African-American, was employed by the Public Works Department of Gloucester Township, along with Defendants Pomianek and Dorazo, Jr., who are white. (Compl., ¶¶ 26, 27, 29.) Plaintiff has alleged that Pomianek and Dorazo, Jr. had a history of discriminatory conduct in their supervisory employment capacities with the Gloucester Township Public Works Department. (Compl., ¶¶ 31, 32.) Plaintiff further alleges that no corrective action was taken regarding complaints of employment issues, because Dorazo, Jr.'s mother, Defendant Mary Dorazo, was a member of the Human Relations Commission, the department in Gloucester Township allegedly charged with reporting, investigating, and recommending disciplinary and corrective action when confronted with acts of racial discrimination. (Compl., ¶¶ 32-35, 11.)

Specifically, the Complaint references a 1998 0r 1999 arrest of Dorazo, Jr. after an off-duty "melee" outside a convenience store "over racist remarks Defendant Dorazo, Jr. made to three African-American men." (Compl., ¶ 36.) At that time, Dorazo, Jr. voluntarily resigned from his position with the Township Public Works Department without discipline or an investigation, but was later rehired. (Compl., ¶¶ 36-38.) The Complaint also points out a September 20, 2005 investigation of Pomianek on allegations of fraud and falsifying his employment application; Pomianek apparently filed a retaliation suit, which Plaintiff alleges was settled for $13,500. (Compl., ¶ 39.)

In addition, Plaintiff references an incident from late November or December of 2006, where Pomianek restrained Plaintiff and other African-American workers with bungie cords and then whipped them, but there was no disciplinary or corrective action taken, despite the report of the incident to Bob Tulino, the then supervisor of Pomianek. (Compl., ¶¶ 40-44.) On April 4, 2007, Pomianek and Dorazo, Jr. ordered Plaintiff to enter a caged area suspended seventeen feet off the ground at a Public Works building to retrieve some equipment. (Compl., ¶¶ 45-46.) The two Defendants padlocked Plaintiff in the cage, allegedly taunting him with racial slurs, calling him a "monkey," and saying "you throw a banana in there and he goes right in." (Compl., ¶ 47.)

"On or about April 2, 2008, criminal charges were filed by Detective James P. Dougherty of the Gloucester Township Police Department against Defendants Pomianek and Dorazo, Jr. for, among other things, false imprisonment, bias intimidation, and harassment." (Compl., ¶¶ 53.) On June 24, 2008, Pomianek and Dorazo, Jr. were suspended without pay pending the resolution of the criminal charges. (Daily Aff., Ex. D.) On December 9, 2010, Pomianek was found guilty of two counts of harassment, two counts of bias intimidation, and one count of official misconduct. (Compl., ¶ 55.) He then resigned from his position as a driver with the Gloucester Township Public Works Department. (Compl., ¶¶ 56-57.) At the time the Complaint was filed, Dorazo, Jr. was awaiting trial on charges filed by the Camden County Prosecutor's Office of official misconduct, harassment, bias intimidation, and false imprisonment. (Compl., ¶ 59.)

Plaintiff has alleged that the Defendants "conspired to conceal the discriminatory, harassing and biased [sic] of Defendants Pomianek and Dorazo, Jr. thereby creating a hostile work environment and causing Mr. Brodie to continue to suffer shame, humiliation, and embarrassment." (Compl., ¶ 61.) "Even after and despite the arrests of Defendants Pomianek and Dorazo, Jr., the Township, the Township supervisors, and/or HRC took no disciplinary or corrective action against either Defendant Pomianek and Dorazo, Jr., or instituted no written formal policies or procedures governing discrimination, or mandated any training thereby causing Mr. Brodie to continue to suffer shame, humiliation and embarrassment." (Compl., ¶ 63.)

Accordingly, Plaintiff filed a thirteen-count Complaint. Count I alleges a civil rights claim against Gloucester Township for developing and maintaining "policies, practices and/or customs [including poor hiring, training, and supervision] exhibiting deliberate indifference to the constitutional rights of persons within Gloucester Township, which caused violations of Mr. Brodie's rights." (Compl., ¶ 77.) Count II alleges civil rights violations by all Defendants. Count III asserts a Fourteenth Amendment substantive due process claim against Pomianek and Dorazo, Jr. Count IV asserts a Fourteenth Amendment equal protection claim against Pomianek and Dorazo, Jr. Count V asserts a claim under 42 U.S.C. § 1981 against all Defendants. Count VI asserts a claim of conspiracy to interfere with civil rights, prohibited by 42 U.S.C. §§ 1985 & 1986, against Pomianek and Dorazo, Jr. Counts VII, VIII, and IX assert claims under the New Jersey Constitution. Count X alleges false imprisonment under New Jersey common law. Count XI alleges intentional infliction of emotional distress. Count XII, misnumbered as XXIII, alleges negligent hiring. Count XIII, misnumbered as XXIV, alleges negligence by Pomianek and Dorazo, Jr.

In defending the instant motion, Plaintiff states that the incidents referenced in the Complaint are merely "example[s] of the many infractions and discriminatory bad acts of Defendants Pomianek and Dorazo, Jr. that went unchecked by supervisors above them, including and up to the past and current Mayors." (Pl. Br., p. 3.) Further, Plaintiff argues that the "Defendants' lack of any meaningful investigation or discipline of Defendants Pomianek and Dorazo, Jr. or changes throughout its subculture in the Public Works Department and throughout the Township employment in general created a hostile work environment that was allowed to continue." (Pl. Br., p. 10-11.) Alternatively, in opposing Dorazo, Jr.'s motion, Plaintiff argues that "the statute of limitations did not begin to run until December 9, 2010 when co-defendant Pomianek was found guilty." (Pl. Br., p. 6.)

Standard on a Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move for dismissal of a complaint based on "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When evaluating the plaintiff's claim, courts must accept the plaintiff's well-pleaded factual allegations as true and view the complaint in the light most favorable to the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

While the plaintiff need only plead "a short and plain statement of the claim showing that the pleader is entitled to relief," the plaintiff's complaint must nevertheless plead "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2). Thus, a complaint must allege facts that "raise a right to relief above the speculative level." Id. at 555. The complaint must contain sufficient factual matter to demonstrate that the plaintiff's allegations are not merely possible, but plausible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

Summary Judgment Standard "Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, (1986)); accord Fed. R. Civ. P. 56(a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, ...


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