On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-811-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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
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.
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.
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.
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."
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.
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 ...