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Henry Johnson v. State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2012

HENRY JOHNSON, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DIVISION OF STATE POLICE; LT. COL. CARSON DUNBAR, SFC HORACE MACFARLAND, TROOPER WAYNE CARBONE, AND JOSEPH BRENNAN, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-811-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 17, 2011

Before Judges Parrillo, Yannotti and Espinosa.

Plaintiff Henry Johnson, a retired African-American State Trooper, brought this action against the State of New Jersey, Division of State Police (NJSP), Lieutenant Colonel Carson Dunbar, Jr., Sergeant First Class Horace MacFarland, Trooper Wayne Carbone and Lieutenant Joseph Brennan, alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the New Jersey Constitution. He appeals from an order that granted summary judgment to defendants and dismissed the complaint in its entirety.*fn1 We affirm.

Plaintiff was employed by the NJSP from April 1981 until his retirement, effective June 1, 2007. During the course of his employment, he received tenure on schedule in 1986. Troopers receive two "automatic" promotions, from "Trooper" to "Trooper Two" after seven years and from "Trooper Two" to "Trooper One" after two more years. Plaintiff received each of these promotions but never received a promotion to sergeant, which is discretionary.

The Department of Law and Public Safety (the Department) issued a formal departmental policy in 1992, articulating its commitment to equal opportunity in the workplace and that "[a]n important aspect of that commitment is the provision of a working environment free from harassment and hostility." Thereafter, the Department issued annual affirmative action statements, reaffirming that policy. The 1996 revision of the Department's policy on hostile environments in the workplace included the following:

It is against Department policy to engage in any conduct involving or directed at an individual employee or class of employees which any similarly situated reasonable person would conclude:

fl has the purpose or effect of creating an intimidating, hostile or offensive working environment; or

fl has the purpose or effect of unreasonably interfering with an individual's work performance, or

fl otherwise adversely affects an individual's employment opportunities.

All Department employees have the responsibility to comply with this policy. Any employee, whether supervisor or co-worker, who violates this policy will be subject to disciplinary action, up to and including termination.

No individual who has reported or attempted to report an incident, filed any complaint or participated in any internal investigation or proceeding pursuant to this Policy shall be penalized or retaliated against in any way. Managers and supervisors are responsible to ensure that complainants, witnesses and respondents are treated fairly and reasonably, based upon appropriate performance of their job duties.

The Department also issued a memo in June 1996 that gave employees the option of bypassing the station commander to complain to the Department's affirmative action officer.

Plaintiff testified that he had signed for and read the State's Equal Employment Opportunity/Affirmative Action (EEO/AA) policy numerous times over the years. No one from the EEO/AA office ever told him he would be hated for filing an EEO complaint. Plaintiff testified that it was his understanding through his NJSP training that "if you don't take a stand against it, you're a part of it."

During the twenty-six years of his NJSP career, plaintiff was assigned to Troop A and served at the following stations: Woodstown (April 1981 to November 1981), Port Norris (November 1981 to 1986), Hammonton (1986 to 1988), Absecon (1988), Port Norris (1988 to 1990), Atlantic City Expressway (1990 to 1992), Bridgeton (October 1992 to August 1994), Port Norris (August 1994 to April 1995), Hammonton (April 1995 to July 1997), Buena Vista (August 1997 to 2002), Camden (2002 to October 2006).

There were interruptions in his service as he was out on stress-related sick leave from December 1997 for eight to ten months, from December 1998 to March 2001, and from January 2007 until his retirement in June 2007. He was also suspended without pay for four months in 1988 and for fourteen months, between May 1996 to July 1997.

We review the facts described by plaintiff to support his claims in the light most favorable to him.

Woodstown (1981)

Plaintiff's initial assignment was to the Woodstown station, where he served for approximately six months in 1981. He made no complaint during that time about the conduct he cites as supporting his claim.

Plaintiff testified that, while at Woodstown, he overheard a detective, who was not in his chain of command, make racially offensive comments, although not to him. The detective also openly displayed a picture with a racist caption. Plaintiff also recalled two conversations with the station commander. In one, he stated the sergeant asked him to "show me how to do that nigger dance." In another conversation that followed an electrical fire in the patrol car plaintiff and another trooper were using, the sergeant asked the other trooper to confirm "that the nigger blew the car up." He recalled no other racist comments that were made directly to him while at Woodstown. Plaintiff also testified that he felt he was ostracized because he declined to go to clubs with his fellow officers when they were off duty.

Port Norris (1981-86)

Plaintiff was assigned to the Port Norris station from late 1981 to 1986. When asked to describe discrimination directed at him, plaintiff testified that when he first arrived, Sergeant Ron Katy told him to take a ride through "Shell Pile" and tell him what he thought. Plaintiff described the area as a very depressing area where people lived in one-room houses along the banks of the water amidst piles of oyster and clam shells that gave off a bad smell. He did not explain how this constituted harassment or discrimination.

Plaintiff also testified that he was nicknamed "nig-nog" and called other names, "Coconut, jig-a-boo, spook[,]" on a constant basis. Katy, then a lieutenant and the station commander, referred to candy he kept in a dish in his office as "nigger babies."

When asked if he ever considered filing an "EEO" complaint, plaintiff stated that he did not know "if there was an EEO that existed" at that time.*fn2 He stated that he intended to wait until he received tenure and then fight back.

Plaintiff considered much of the animosity he encountered in his career to be retaliation for his reporting misconduct by fellow officers. In particular, he cited his actions regarding Horace MacFarland. Plaintiff stated that while assigned to Port Norris, he and MacFarland were sent to a bar to investigate a shooting incident. MacFarland was standing in the middle of the road, waving a nightstick at a vehicle, trying to get the driver to slow down. The driver slowed down and then started to go around MacFarland, who then threw his night stick, hitting the windshield. MacFarland then jumped in a car and, with other officers, pursued the truck which was driven by a Philadelphia police officer's son. Plaintiff attributed MacFarland's actions to "having a bad day[,]" because he was due to be on suspension the following day for an unrelated incident. Plaintiff said he felt compelled to write a truthful report about the incident because the "kid" was "only going fishing" and if he were "the kid's parents, [he] would like to know the truth."

Plaintiff prepared a report critical of MacFarland and later testified against him "for abusing a Philadelphia police officer's son." Upon reading his report, plaintiff's supervisor called him into his office and told plaintiff that his report would damage MacFarland's career. Plaintiff replied that he reported the truth as to what happened. His sergeant told him, "You're committing career suicide." Plaintiff testified that he "figured it would go away. [MacFarland] wasn't a good example anyway. But, it stuck with me my whole career." Plaintiff believed his testimony against MacFarland "definitely" affected his ability to obtain positions and repeatedly cited the incident as the basis for the retaliation he suffered for virtually the remaining twenty years of his career.

Plaintiff singled out one position for which he was passed over while at Port Norris. After he was sent to criminal investigation school, he applied to be a narcotics investigator. He had not obtained the position when he received a call that people were needed in Commercial Vehicle Inspection (CVI). He was told that if he later got the narcotics job, it would not be a problem to leave that assignment. So, he applied for the CVI position and got it.

Plaintiff testified there were other jobs he believed he should have gotten which he did not get while at Port Norris. He stated he repeatedly applied for openings in the Records and Identification (R&I) section that were "computer-ended jobs."

However, he had not taken any courses in computer skills at that time. Although he testified that there were other positions, such as a station detective, that he applied for, he did not recall who received the positions.

Hammonton (1986-88)

Plaintiff testified that when he began at CVI in Hammonton, Lieutenant Huey Herron, the station commander, said he heard plaintiff was "not a team player." Plaintiff came to understand that Herron meant that he could not be trusted, because, "If you do something wrong and I see it, I'm going to tell the truth." Plaintiff testified that the result of this perception was that he "was ostracized."

Plaintiff was among those selected for the narcotics assignment he had requested. However, after plaintiff refused to pay $75 to his neighbor for damage his dog had done to the neighbor's property, the neighbor complained to the NJSP. Plaintiff was ordered to pay the neighbor and get a receipt. Plaintiff "took a couple days' vacation because it was a lot of heat that built up over that incident which [he] couldn't understand." When he returned to work, plaintiff was told he would not get the narcotics assignment as a result of the incident. He had "no idea, none whatsoever" who got the narcotics assignment instead of him.

After he was assigned to Hammonton, plaintiff took computer courses at the community college. He testified that the classes "constantly" conflicted with his work schedule and that his sergeant did not adjust his schedule to accommodate his classes although accommodations were made for other troopers to do things like coach sports or go to school. Plaintiff stated that he was passed over for "guys with no skills." However, he did not identify any trooper whose request for a similar accommodation was honored and was able to identify only one white trooper who obtained a computer job he sought. Plaintiff felt his career was "still being blackballed."

Absecon (1988)

In 1988, plaintiff was stationed in Absecon. On one occasion, he intervened when he believed another trooper was using excessive force against an adolescent and reported same to the station commander. Both the adolescent and the trooper were Caucasian. Plaintiff believed that, as a result of this incident, "[he] wasn't favorably looked upon because [he] took action against another trooper." He knew he "wasn't liked."

The only racial insult plaintiff recalled while at Absecon occurred shortly after this incident. The troopers gathered at a bar after work one evening. When plaintiff came in, his sergeant looked at him and said, "Your kind isn't welcome.

There's no niggers allowed here." Plaintiff replied, "Really," and sat at a table with the sergeant's wife. She said to plaintiff, "He didn't mean that. He didn't mean that. He's just been drinking." There were no other offensive comments and plaintiff left shortly thereafter.

While at Absecon, he continued to apply for the computer position without success. However, he did not know who received the position instead.

1988 Discipline

Plaintiff's record was not unblemished. In 1988, he was investigated for an incident involving his nephew and a woman who complained to the NJSP that plaintiff would not allow her out of his vehicle. Plaintiff was charged with simple assault in a disciplinary proceeding, found guilty of conduct unbecoming an officer and was suspended for four months without pay.

Atlantic City Expressway (1989-91)

From 1989 to 1991, plaintiff was assigned to the Atlantic City Expressway station. He stated that a senior trooper told him he lived in a community in Florida "where there were no niggers allowed." The senior trooper also stated he would love to have plaintiff, who did construction and painting on the side, paint his house but that if he hired plaintiff, the neighbors would burn his house down.

Plaintiff also said that Trooper Robert Abel made derogatory comments about his wife. However, when plaintiff confronted him about it, Abel apologized. Abel later intervened on plaintiff's behalf with other troopers regarding an incident involving the female acquaintance of another trooper. Plaintiff had stopped a woman for speeding and had her car towed when she had no license or registration. Defendant Wayne Carbone was angered, claiming that the woman was his cousin. Other troopers teased plaintiff about his ticketing a fellow trooper's family member. However, Abel defended plaintiff by letting everyone know that Carbone had issued numerous tickets to the woman and then dismissed them in consideration for sexual favors.

Plaintiff later complained about Carbone, who was junior to him, for his behavior in pulling over and harassing minority drivers, and stated he did not want to ride with him. Plaintiff's request was granted.

There were troopers who sided with Carbone following the ticketing incident and continued to "scream" at plaintiff. He testified that he told them, "Any time you're ready, you make a move. I'm not afraid of your screaming." Lieutenant Walden called him into his office the day after this exchange and stated, "There will be no fisticuffs in my station." Plaintiff stated that he argued with Walden, whom he believed to be a friend of Carbone's, and that Walden stated, "While I'm station commander, don't look to go anywhere." Plaintiff later applied for a position in the tactical patrol unit, which required the applicant to be highly motivated. He testified that he exceeded the criteria for "highly motivated" by writing more than the standard number of tickets. Plaintiff stated he did not get the position after Walden stated he was not motivated and would not be a good candidate. Plaintiff did not know who got the position instead.

Plaintiff also applied for and did not obtain R&I positions while in Atlantic City but did not know who received the positions.

Bridgeton (1992-94)

From 1992 to 1994, plaintiff was stationed in Bridgeton. He testified there were no racist comments or acts directed at him while he was stationed there.

Plaintiff testified that Lieutenant Ron Giglio told him, "he did not want him to be assistant station squad leader because he didn't feel that [plaintiff] would be a good one" and that as long as he was station commander, plaintiff was not going anywhere.

Plaintiff cited the circumstances of his transfer from Bridgeton. He had intervened with a trooper who was hitting a handcuffed African-American female at the station and then confronted the sergeant in charge, Jimmy Smith, whom he described as a "black male." Plaintiff asked Smith, "Why are you letting him do this?" and argued with him further. The next day, the lieutenant in charge called him in and said he heard that plaintiff and "Smitty" were about to fight. The lieutenant stated that he was going to have plaintiff reassigned to Port Norris. When plaintiff protested, the lieutenant replied, "It's easier to move you than to move him." Plaintiff considered this transfer to be retaliation for his arguing with Smith.

Before he was transferred, plaintiff stated he was "kicked off" Smith's squad and worked under another sergeant, Keith Ciebret, who gave him performance notices (PNs) "for everything he could find[.]" Plaintiff testified that Ciebret "was doing it because he didn't like me, period."

Disciplinary actions (1992-94)

Plaintiff was the subject of three disciplinary investigations during his assignment to Bridgeton. In July 1992, he received an eight-day suspension after violating a restraining order obtained by his wife during the course of their divorce. In August 1993, plaintiff received a letter of reprimand for "culpable inefficiency" for failing to appear in municipal court to testify against a motorist he had arrested for driving while intoxicated. He did not appeal the reprimand. In August 1994, plaintiff was the subject of another internal investigation arising from his shooting of a dog while attempting to effect an arrest. The outcome of the investigation was favorable to plaintiff.

Port Norris (1994-95)

From the summer of 1994 to spring, 1995, plaintiff was assigned to Port Norris. He testified that Bruce Meyers, the station commander, called him "coconut." After plaintiff made a concerted effort to befriend Meyers, his "racial name-calling dissolved itself to a minimum." Meyers expressed his own animus toward another African-American male who had reported him to Trenton and told plaintiff that it was just a matter of time before MacFarland, the trooper he had testified against, would "get" him. Meyers told plaintiff he was "doing a great job with the computer stuff here" and asked if he had ever thought of doing it elsewhere. When plaintiff told Meyers he had tried unsuccessfully for several jobs, Meyers suggested he apply for a communication supervisor position in Hammonton. Although plaintiff said this was not a coveted position, he considered Meyers's suggestion as reflecting his view that this would be an opportunity for plaintiff. Plaintiff was the only applicant for the position and obtained it. He stated, "I thought it was an opportunity to do computer work and it was something I wanted to do."

Hammonton (1995-97)*fn3

While he was at Hammonton, there was an incident involving the station commander of Red Lion station, Lieutenant Yancisian, who was angry when plaintiff called his station to follow up on a prior 911 call that had not received a response. Plaintiff testified that Yancisian called him and cussed me out pretty much, called me "boy" and said all kinds of other things.

Cursing, I don't tell him what to do with his blanking troopers. Who do I think I am?

And he was ranting and raving for a while. Plaintiff did not report the incident. However, his sergeant learned about it from another operator and apparently advised Captain Kenneth Crawford. Plaintiff testified,

And Captain Crawford made him apologize. To see six foot guy, Marine, muscles breakdown and cry like a baby, it was moving, you know because I never asked him for any apology. That was all done over my head.

And when he came in crying - I guess he knew they were going to send him up to Newark if he didn't make things right . . . . I said, "You don't owe me no apology."

Plaintiff testified that he was grateful for the captain looking out for him and that he "helped me every time he could and he didn't want them messing with me." He did not recall any other discriminatory comments made to him while he was stationed in Hammonton.

"DYFS"*fn4 discipline (May 1996 - July 1997)

Plaintiff's position as communications supervisor was a "promotable" position that could have led to his promotion to sergeant. However, as plaintiff testified, "I didn't get promoted. I got in a situation involving [DYFS]."

According to plaintiff, his son started a fire in their house. Plaintiff gave him a "spanking" after learning his son had falsely denied starting the fire. When his son went to school the next day, his teacher noticed marks on his face, and the school nurse found more marks on his body. His son told the DYFS investigator that plaintiff had beaten him for lying about starting the fire. After determining that the marks on the boy's body were consistent with the use of a belt, the investigator notified the police. Plaintiff was indicted for second-degree and third-degree aggravated assault, second-degree endangering the welfare of a child, and weapons charges for using a belt to beat his ten-year-old son.

Plaintiff was suspended without pay the day after he was indicted. He was acquitted of the assault and weapons charges. The prosecutor elected not to pursue further prosecution of him, and he was returned to service shortly thereafter, resulting in a total suspension of fourteen months, from May 1996 to July 1997.*fn5

An internal investigation was pursued, however, resulting in a disciplinary hearing on September 27, 2001. On November 13, 2001, Lieutenant Colonel Dunbar, the Superintendent of NJSP and an African-American, issued the final agency decision, which was subject to a preponderance of the evidence standard. In his findings, Dunbar contrasted the DYFS investigator's assessment of the situation as one of the worst cases of abuse she had seen with plaintiff's continuing failure to view his actions as inappropriate or to accept that he had lost control. Dunbar concluded that plaintiff "lost control and dispensed an unnecessarily excessive corporal punishment[,]" and explained that a trooper's failure to maintain control and professionalism, whether on duty or not, "brings discredit to the Division." Dunbar found plaintiff guilty of bringing discredit to himself and the NJSP by striking his son with a belt and causing injuries. He imposed a punishment of nine months' suspension without pay, with credit for plaintiff's fourteen months of suspension without pay during the pendency of the criminal indictment. As a result, plaintiff was entitled to five months of back pay.

Plaintiff considered the investigation discriminatory and retaliatory because it had been initiated despite the fact that his immediate superior, Captain Crawford, had recommended against it. He also testified that Dunbar was acting in a retaliatory manner when he imposed the punishment of nine months' suspension without pay. He testified that at one point, Dunbar referred to him as "a traitor or a whistle-blower, the type of individual that can't be trusted[.]" Plaintiff viewed this as further evidence that his decision to testify against MacFarland would follow him for the rest of his career.

Buena Vista (1997-2002)

When he returned to service, his request to return to the communications supervisor position at Hammonton was denied. Plaintiff was stationed in Buena Vista from 1997 to 2002. He worked as a "general road trooper," which paid the same salary as the supervisor position but did not have overtime opportunities. MacFarland, now the assistant station commander, told plaintiff that "a lot of things would never [have] happened to [plaintiff] if [he] would have just kept [his] mouth shut." Immediately upon his return to duty, plaintiff asked to take vacation "to put [his] mind in order and to celebrate" that he had been acquitted. Although MacFarland initially denied the request, plaintiff did take vacation and stated he "could already see [they] were butting heads."

Sick leave (December 1998 - March 2002)

From December 1998 to March 2002, plaintiff was on sick leave or "stress leave." In the summer of 1999, MacFarland cited plaintiff for abuse of sick time. A letter of reprimand was issued and later rescinded after plaintiff appealed.

Plaintiff was also issued a letter of reprimand in 2001 for failing to carry his NJSP identification after he was stopped and ticketed for speeding and letting his car registration expire.

Camden (2002-06)

Plaintiff returned to service in March 2002 and, after a few weeks at Buena Vista, he was transferred to Camden. His first assignment was traffic coordinator. He liked the work and did not consider his assignment discriminatory.

After it was decided that another African-American trooper, Reggie Williams, had to be taken off the road following a citizen complaint, plaintiff trained Williams to take over the job as traffic coordinator. Plaintiff was assigned to assist the Auto Unit in the towing of abandoned vehicles.*fn6 Plaintiff considered the assignment to assist the Auto Unit discriminatory because he thought Williams should have been given that position and because he "knew" the sergeant he worked for there, Jay Pennypacker, was "racist[.]"

Plaintiff stated that Pennypacker never made racial comments directed toward him or called him names but nonetheless discriminated against him by requiring him to report on his location regularly while other troopers were not required to do so. However, plaintiff also testified that Pennypacker told him he was doing a great job and promised that he would get plaintiff a commendation. Despite this positive feedback, plaintiff considered it evidence of discrimination that, in his evaluation, Pennypacker noted there were instances when plaintiff did not log in at the station. He did not testify that this criticism was false. Plaintiff did not recall any other discriminatory events that occurred while he was under Pennypacker's supervision.

Plaintiff also participated in undercover drug operations and testified he had no problems helping out in that fashion, stating, "They enjoyed having me and I enjoyed helping out."

After Pennypacker's departure, Lieutenant Colonel DeFeo, plaintiff's new superior, told plaintiff it was time for him to get promoted, stating, "We have to do something to move you along." He wanted to move plaintiff from the Auto Unit "because that's not taking you anywhere." Plaintiff was transferred to a squad and made assistant squad leader in the summer of 2002. Plaintiff did not consider the transfer to the squad to be retaliatory.

Plaintiff took the promotional exam twice - in or about April 2001 and in the spring of 2002. He did not pass it either time and testified that the results of both tests were invalidated.

In August 2002, Lieutenant Rick Pina, the task force commander, advised plaintiff that he had not passed the promotional exam and that, as a result, his position as assistant squad leader would be given to a trooper who had passed the exam, Trooper Ogg, a white male. Approximately two weeks later, plaintiff learned that the promotional exam results were invalidated. He told Pina that he wanted to return to the assistant squad leader position. Pina told him that he would look into it and get back to him but failed to do so.

It is unclear from the record when plaintiff made a second inquiry of Pina but plaintiff testified that in response to the second inquiry, Pina told plaintiff that there was a position in Community Outreach that would become available around Christmas when Sergeant Mona Provost in Community Outreach left. Plaintiff testified that Pina stated, "So you're going to have to wait until Christmas to get your promotion." Although plaintiff did not identify the year in which this second conversation occurred, he was assigned to be Community Outreach liaison in the autumn of 2003, in anticipation of Provost's departure in December 2003.

Plaintiff testified that the assignment to Community Outreach was discriminatory. He believed that Lieutenant Pina knew that the promotional exam results were going to be thrown out although he cited no evidence to support that belief.

Plaintiff testified that his removal from the assistant squad leader position was related to his earlier testimony against MacFarland. Plaintiff was unable to provide any facts to support his belief regarding Pina's motives. Pina never mentioned any of the incidents that plaintiff believed he was ostracized for, and there was no documentation showing that Pina held any of the incidents against plaintiff. Nonetheless, plaintiff believed that as commander, Pina "knew everything there was about me; where I came from, that I was a troublemaker."

Pina was succeeded by Captain Higgins, who recommended plaintiff for the vacancy after Provost left. The position went to a white female trooper in Community Outreach North. Plaintiff admitted that Captain Higgins told him the position was taken away from Community Outreach South and given to Community Outreach North. According to plaintiff, Higgins protested to Major Rivera that it was "not right" for plaintiff not to receive the promotion because it was promised to him. Rivera reportedly responded that they would find a space for plaintiff but also referred to plaintiff's lawsuit. Plaintiff had filed a lawsuit against the NJSP that had been dismissed for failure to prosecute and which was reinstated around the time that Provost's successor was being chosen. Plaintiff believed that he was denied the promotion in retaliation for the reinstatement of the lawsuit, and because of his race.

Plaintiff testified regarding other promotions promised but not given to him. In 2006, when he was stationed in Camden, plaintiff had a conversation with Lieutenant Colonel William Malasks, who told him he had been "f'd[,]" that there was "no way [he] should retire as a trooper" and promised him that "in four to six months, you'll be in a sergeant position." Plaintiff did not receive a promotion to sergeant and did not know if someone else received such a promotion.

Sick leave (January - June 2007)

Plaintiff went on sick leave in January 2007. This was his third stress-related sick leave. He was placed on administrative leave in March 2007 and received full pay and benefits until his retirement on June 1, 2007.

EEO Complaints

Plaintiff filed several EEO complaints, none of which are included in the record. In an affidavit submitted in opposition to the summary judgment motion, plaintiff stated he filed his first EEO/AA complaint in 1999, "regarding the MacFarland testifying incident and subsequent discrimination, [hostile work environment], retaliation, and failure to promote including transfer to Bridgeton from Port Norris Station around 1992 through 1994[;]" that he filed his second EEO/AA complaint in 2001, "involving my 3/11/01 motor vehicle tickets and other [hostile work environment], discrimination, retaliation, and failure to promote and placement back in Buena [Vista] Station under SFC. Robert [sic] MacFarland who he [sic] previously testified against[;]" that he filed his third EEO/AA complaint in 2004, alleging "several failure to promote despite promises, retaliation, discrimination, [hostile work environment] regarding Mona Provost and Troop A-Community Outreach, Captain Ricardo Pina, Lt. William Steven Malast, and the illegal promotional test given to Plaintiff and a rescission of promotion[;]" that he filed his fourth EEO/AA complaint in 2005; and that he filed his fifth EEO/AA complaint in February 2007, alleging "several failure to promote despite promises, retaliation, discrimination, [hostile work environment] regarding most recent EEO/AA complaint[.]" He also filed numerous grievances regarding the various internal allegations against him.

Plaintiff initiated this lawsuit by filing a complaint on March 28, 2005 and later amended the complaint. In his amended complaint, plaintiff alleges that the State violated the LAD by failing to promote him, discriminating against him, and creating a hostile work environment (counts one and two). The counts further allege that the individual defendants aided and abetted these violations. The third count alleges that the State and the individual defendants violated his constitutional rights to due process and equal protection, N.J. Const., Art. I, para. I.

Answers were filed on behalf of the State and defendants

Brennan, Dunbar and Carbone.*fn7

Defendants moved for summary judgment. The motion judge addressed each of plaintiff's claims in turn and found that plaintiff had failed to present a prima facie case to support his allegations. In an extensive oral opinion, the court noted the following findings:

With respect to the plaintiff's disparate impact treatment claim, . . . this Court finds that plaintiff has failed to isolate and identify any specific employment practice that is responsible for any such disparity based upon racial motivation.

Plaintiff has failed to demonstrate that the application of any specific employment practice has created said disparity. Even if plaintiff were found to have done so, the Court finds that the defendants herein have proffered sufficient legitimate non-discriminatory reasons for the employment practices, actions and omissions that occurred over the course of time here. . . . [T]his court finds that the plaintiff has demonstrated no inferences in favor of the plaintiff's case; that is, no inferences that can demonstrate differences in treatment with respect to the disparate treatment claim.

With respect to the plaintiff's hostile work environment claim, the Court finds that the actions or omissions undertaken by the defendants herein are not severe or pervasive enough to make a reasonable African-American believe that the conditions of employment were altered and the working environment was hostile or abusive.

Discourtesy or rudeness should not be confused with racial harassment. A lack of racial sensitivity does not alone amount to actionable harassment. Again, . . . simple teasing, off-hand comments and isolated incidents do not amount to discriminatory changes in the terms and conditions of employment . . . .

With respect to the retaliation claim, even assuming that plaintiff meets the three prongs set forth in McDonnell Douglas,*fn8 the Court finds that the defendants herein have articulated legitimate, non-retaliatory reasons for the employment decisions here which the plaintiff has failed to rebut effectively.

Specifically, plaintiff was reprimanded and failed to appeal the State Police discipline based upon the child abuse allegations that resulted in plaintiff not being promoted. Plaintiff had an internal investigation pending against him based upon co-worker complaints that resulted in plaintiff not being promoted.

And plaintiff was not promoted for various operational reasons asserted by the defendants, including lack of position openings, transfer of position to other stations where plaintiff was not located, and lack of qualifications and credentials for the employment position sought.

Additionally, the Court finds that there has not been demonstrated a causal link between the proffered protected activity in any adverse employment action pursuant to McDonnell Douglas.

With respect to the plaintiff's aiding and abetting claim, the constitutional violation claim, and the proposed constructive discharge claim, the Court finds that these counts have no merit, as there is no violation under the New Jersey Law Against Discrimination.

Based upon these findings, even if the plaintiff's complaint is found to be within the statute of limitations, the Court finds that there is not a sufficient showing here to allow this complaint to proceed.

Plaintiff presents the following arguments for our consideration in this appeal:

POINT I

THE PLAINTIFF PRESENTED SUFFICIENT FACTS FOR A TRIER OF FACT TO BELIEVE THAT HE WAS DISCRIMINATED AGAINST BECAUSE OF HIS RACE OR NATIONAL ORIGIN; AND THAT MATERIAL FACTS ARE IN DISPUTE THAT SHOULD HAVE CREATED NUMEROUS INFERENCES TO SUPPORT PLAINTIFF'S CLAIMS FOR THE JURY TO CONSIDER[.]

POINT II

A QUESTION OF FACT EXISTS AS TO WHETHER THE DEFENDANTS' DISCRIMINATORY ACTIONS CREATED A HOSTILE WORK ENVIRONMENT[.]

POINT III

GIVING THE PLAINTIFF THE BENEFIT OF ALL LEGITIMATE INFERENCES THAT CAN BE DRAWN FROM THE FACTS IN THE RECORD, SUFFICIENT EVIDENCE EXISTS FOR A REASONABLE TRIER OF FACT TO FIND THAT THE PLAINTIFF WAS THE VICTIM OF DISCRIMINATION AND RETALIATION FOR TESTIFYING AGAINST A WHITE OFFICER, AND FOR FILING THE EEO AND CIVIL COMPLAINT IN THIS MATTER.

After carefully reviewing the record and arguments of counsel, we are satisfied that none of these arguments has merit.

In reviewing an order granting summary judgment, this court employs the same standard of review as the trial court, Coyne v. N.J. Dep't. of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009), which grants summary judgment if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

I

In Points I and II, plaintiff argues that the trial court erred in granting summary judgment because he presented sufficient evidence to establish a prima facie case of racial discrimination and a hostile work environment. In support of his argument he recounts what he describes as "a documented history of discrimination and oppression of minorities" dating back to 1967. Nonetheless, his claims are subject to the two-year statute of limitations for LAD claims. Roa v. Roa, 200 N.J. 555, 566 (2010); Montells v. Haynes, 133 N.J. 282, 292 (1993).

Because plaintiff alleges both acts of discrimination and a hostile work environment, our analysis of the statute of limitations issue is guided by the inquiries articulated in Shepherd v. Hunterdon Developmental Center, 174 N.J. 1 (2002). First, we determine whether plaintiff has alleged one or more discrete acts of discriminatory conduct by defendants. If so, his cause of action accrued on the day when the individual act(s) occurred. Id. at 21. The second inquiry is whether plaintiff has alleged "a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment[.]" Ibid. If so, the cause of action accrued "on the date on which the last act occurred, notwithstanding 'that some of the component acts of the hostile work environment [fell] outside the statutory time period.'" Ibid. (quoting Amtrak v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106, 124 (2002)); see also Roa, supra, 200 N.J. at 568.

The second inquiry relates to the equitable exception to the limitations period created for cases of a "continuing violation[,]" which occurs "when an individual experiences a 'continual, cumulative pattern of tortious conduct[.]'" Roa, supra, 200 N.J. at 566. In such cases, "'the statute of limitations does not begin to run until the wrongful action ceases.'" Ibid. (quoting Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999)). This exception may not, however, be exploited to bring discrete time-barred discriminatory acts within the statute of limitations simply because they are followed by discriminatory actions that are not so barred. The continuing violation exception applies when there is "a series of separate acts that collectively constitute one 'unlawful employment practice.'" Morgan, supra, 536 U.S. at 117, 122 S. Ct. at 2074, 153 L. Ed. 2d at 124 (emphasis added) (quoting 42 U.S.C. 2000e-5(e)(1)); see also Roa, supra, 200 N.J. at 567; Shepherd, supra, 174 N.J. at 20-21 ("bright-line rule" applied to the LAD context that individually actionable allegations cannot be aggregated.)

[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the [statutorily prescribed] time period after the discrete discriminatory act occurred. [Roa, supra, 200 N.J. at 567 (quoting Morgan, supra, 536 U.S. at 113, 122 S. Ct. at 2072, 153 L. Ed. 2d at 122).]

Therefore, even though there may be a series of different actions, each occasion of "termination, failure to promote, denial of transfer, or refusal to hire" constitutes a separate actionable unlawful employment practice and accrues on the day of the discrete act. Morgan, supra, 536 U.S. at 110, 114, 122 S. Ct. at 2070, 2073, 153 L. Ed. 2d at 120, 122; Roa, supra, 200 N.J. at 566-67.

These principles dictate that any claim made by plaintiff of a discrete act that occurred prior to March 28, 2003 is barred by the statute of limitations. The record regarding those allegations may, however, serve as "'background evidence'" in considering claims timely made. See Roa, supra, 200 N.J. at 567 (quoting Morgan, supra, 531 U.S. at 113, 122 S. Ct. at 2072, 153 L. Ed. 2d at 122).

II We first address plaintiff's disparate treatment claim. Plaintiff alleged that he was subject to disparate treatment both in the denial of promotions and in discipline.

There was no direct evidence of discriminatory intent presented as to any of the challenged employment decisions. Therefore, plaintiff's claims were subject to the burden-shifting approach applicable to LAD claims, which requires plaintiff to present a prima facie case of discrimination before the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677-78; Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97-98 (1990). Thereafter, the burden returns to the employee to show that the proffered reason for the action was pretextual. McDonnell Douglas, supra, 411 U.S. at 804, 93 S. Ct. at 1825, 36 L. Ed. 2d at 679; Grigoletti supra, 118 N.J. at 98.

To establish a prima facie case of discriminatory disparate treatment in the denial of promotions, plaintiff was required to show by a preponderance of the evidence that he (1) belongs to a protected class; (2) applied for a position for which he was objectively qualified; (3) was not given the position; and (4) the employer gave the promotion to a similarly-qualified person who was not a member of his protected class. See Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005); Bergen Commer. Bank v. Sisler, 157 N.J. 188, 210 (1999); Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 70 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005). We recognize that plaintiff's burden "is 'rather modest: it is to demonstrate to the court that [the] plaintiff's factual scenario is compatible with discriminatory intent - - i.e., that discrimination could be a reason for the employer's action.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)). Nonetheless, he has failed to meet that burden.

Because plaintiff's allegations regarding discipline and the denial of promotions concern discrete acts, the only actions that fall within the statute of limitations are those that occurred after March 28, 2003. He has identified no disciplinary action taken against him after that date to support this allegation. We therefore focus upon the failure to restore him to the position of assistant squad leader after the promotional exam results were invalidated and the failure to grant him the promotion to Community Outreach supervisor.

There is some ambiguity in the record regarding the timing of the failure to restore him to the position of assistant squad leader after the promotional exam results were invalidated. According to his testimony, he last took the promotional exam in 2002, was advised that he had failed in August 2002, and learned that the exam results were invalidated two weeks after he was removed from the assistant squad leader position. It is unclear when he made his first request to be restored to the position, which plaintiff contends Pina failed to act on. Plaintiff testified further that when he made a second request, Pina told him he would be eligible for a promotion to Community Outreach supervisor in December that year when Mona Provost retired and was accordingly transferred to Community Outreach in the autumn of 2003.

Plaintiff was not given Provost's position and also alleges that the failure to give it to him constituted disparate treatment on the basis of his race. As noted earlier, plaintiff's captain recommended plaintiff for the vacancy after Provost left and protested when plaintiff did not receive the promotion.

A critical element of the prima facie case required as to each of these denials is that the promotion in question was given to a similarly-qualified person who was not a member of his protected class. See Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 84 (1978). It was therefore necessary for plaintiff to produce evidence that the person who received the promotion possessed qualifications equivalent to his. See id. at 84-85. Plaintiff has presented no evidence regarding the qualifications of either the trooper given the assistant squad leader position or the trooper made Community Outreach Supervisor. Therefore, he has failed to present a prima facie case of disparate treatment regarding these promotions.

Aside from these two positions, plaintiff alleges that there were promises he would be promoted which were not fulfilled.*fn9 He presents no legal authority for the proposition that a generalized unfulfilled promise of promotion is sufficient to establish that he was negatively affected by his employer's decision not to give him a job for which he was qualified. See Mandel, supra, 373 N.J. Super. at 70.

While evidence of prior wrongful conduct may provide "background" for the assessment of timely claims of discrimination, such evidence fails to cure the absence of a prima facie case of a wrongful denial of promotion within the statute of limitations. Moreover, plaintiff repeatedly cited animosity for his testimony against MacFarland, rather than his race, as the reason for denials that were allegedly retaliatory.*fn10

III In Point II, plaintiff argues that a question of fact exists as to whether he was subjected to a hostile work environment. We disagree.

To support his claim that he was subjected to a hostile work environment based upon his race, plaintiff had to present prima facie evidence that the conduct complained of (1) would not have occurred but for his race; and it was (2) severe or pervasive enough to make a (3) reasonable person of his race believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. See Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993); see also Taylor v. Metzger, 152 N.J. 490, 498 (1998) (applying Lehmann test to hostile work environment claim based upon race).

Although a single incident of harassment can create a hostile work environment, "'it will be a rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable [person situated as the claimant], make the working environment hostile.'" Taylor, supra, 152 N.J. at 500 (quoting Lehmann, supra, 132 N.J. at 606-07).

Taylor presented just such a rare and extreme case. The plaintiff, a sheriff's officer, alleged that the defendant, the sheriff of Burlington County, stated, "There's the jungle bunny[,]" to her in the presence of another supervisor, the undersheriff. Id. at 495. The Court stated, "[t]he term defendant used, 'jungle bunny,' is patently a racist slur, and is ugly, stark and raw in its opprobrious connotation" and has "an unambiguously demeaning racial message[.]" Id. at 502-03. The Court also noted,

[T]he severity of the remark . . . was exacerbated by the fact that it was uttered by a supervisor or superior officer. Defendant was not an ordinary co-worker of plaintiff; he was the Sheriff of Burlington County, the chief executive of the office in which plaintiff worked. That fact greatly magnifies the gravity of the comment. [Id. at 503.]

In making the comment, the sheriff "did more than merely allow racial harassment to occur at the workplace, he perpetrated it." Id. at 504. "Because the sheriff was both plaintiff's superior and her offender, plaintiff could not seek the redress that would otherwise be available to a victim of invidious workplace harassment, namely, resort to her own supervisor." Id. at 505. Indeed, "[w]hen plaintiff did turn to defendant, she did not receive any redress or protection whatsoever, let alone comfort, solace or contrition. Rather, she was rebuffed and further agitated, to the point of tears, for taking offense to a remark that was clearly a slur against her race." Ibid. The Court therefore concluded that a factfinder could reasonably determine that the racial insult was sufficiently severe under the circumstances to create a hostile work environment. Id. at 506-07.

In this case, plaintiff testified that, during the course of his career, he was subjected to racial slurs, sometimes by officers who were his superiors. He does not, however, identify any one incident as so severe that it created a hostile work environment. Therefore, we examine the conduct complained of over the course of his career to determine whether the cumulative effect of the alleged discriminatory conduct was so pervasive as to alter the conditions of his employment.

[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. [Harris v. Forklift Sys., 510 U.S. 17, 23, 114 S. Ct. 367, 371, 126 L. Ed. 2d 295, 302-03 (1993)

We do not take plaintiff's allegations that he was subjected to racial epithets in the workplace, at times by supervisors, lightly. However, we note that his complaints largely concern incidents that occurred decades ago. He was aware of the State's EEO/AA policy. Yet, by his own admission, he did not complain regarding such incidents, intending to take action after he was tenured. His failure to complain deprived his employer of the knowledge that remedial action was required to protect him against further harassment, a failure fatal to his claims based upon such incidents. See Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 576 (2009).

When there was an incident of offensive language directed at plaintiff later in his career by the station commander at Red Lion station, the matter was reported up the chain of command from his sergeant to his captain, who took significant remedial action, even without any complaint from plaintiff. As plaintiff testified, the captain ordered the offending party to apologize to him. Plaintiff testified that he was moved by the gesture, which "was all done over [his] head[,]" and was grateful for the captain looking out for him. He testified further that the captain "helped me every time he could and he didn't want them messing with me."

In the latter part of his career, plaintiff received additional support from other superiors, who he stated acknowledged that he should have been promoted and endeavored to assist him in that regard. Plaintiff noted that in 1995, his station commander complimented him on his computer work and suggested he apply for a position as communications supervisor, which both the commander and plaintiff considered to be an opportunity for plaintiff. Plaintiff applied and obtained the position. In 2002, he was transferred to a squad and made assistant squad leader after Lieutenant Colonel DeFeo told him he wanted to move him to assist him to get a promotion. After that position was taken from him because he had failed the promotional exam, Captain Higgins recommended plaintiff for the Community Outreach supervisor position and protested on his behalf when plaintiff did not receive the position.

The nature and frequency of the alleged discriminatory acts over the course of a twenty-six year career do not depict a work environment in which the terms of employment have been altered by acts of racial discrimination. Significantly, plaintiff himself acknowledged repeatedly that much of his workplace issues related to animus rooted in his testimony against MacFarland, his intervention regarding another trooper, the perception that he was not a "team player," that he was ostracized because he could not be trusted not to report wrongdoing by other troopers, and personality conflicts. For example, his explanation for why a sergeant gave him performance notices at every opportunity was "because he didn't like me, period." Plaintiff frequently attributed conduct that he considered discriminatory or retaliatory to these factors, rather than his race. Accordingly, by his own testimony, there is insufficient support for a conclusion that discriminatory conduct based on his race interfered with his work to such a degree that the work environment was hostile.

IV

In Point III, plaintiff argues that he was unlawfully retaliated against for testifying against a white officer in federal court in 1986 and for filing EEO complaints in 1997 and 1999.

To maintain a cause of action under the retaliation provision of the LAD, N.J.S.A. 10:5-12(d), a plaintiff must prove (1) he engaged in a protected activity known to the employer; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity, and (3) a causal link exists between the protected activity and the adverse employment action. Craig v. Suburban Cablevision, 140 N.J. 623, 629-630 (1995).

The LAD defines retaliation that is actionable as the following unlawful employment practice:

For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act. [N.J.S.A. 10:5-12(d) (emphasis added).]

Therefore, in order to constitute protected activity under this section of the LAD, the action must be clearly tied to the vindication of rights protected by the LAD. Specifically, for testimony to constitute protected activity, the witness must testify "in any proceeding under this act[.]" Ibid.

The protected activity plaintiff contends satisfied the first of these requirements is that he testified against a white officer in a federal action and that he filed EEO complaints in 1997 and 1999. According to plaintiff, his testimony concerned an incident that occurred in 1986 or 1987 when MacFarland "abus[ed] a Philadelphia police officer's son."

There is no evidence in the record that identifies the case in which plaintiff testified as a proceeding brought under the LAD. The mere fact that plaintiff, an African-American, testified against a white officer does not make his testimony protected activity under the LAD. Accordingly, his testimony against MacFarland does not provide a basis for a retaliation claim under the LAD.

Plaintiff also argues that he was retaliated against for filing EEO complaints in 1997 and 1999. He states the latter complaint was resolved in 2001 and does not identify any action taken in retaliation for either complaint that occurred within the statute of limitations.*fn11 We are satisfied from our review of the record that the argument that his claims of reprisal for the filing of EEO complaints lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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