On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1596-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
Plaintiffs, a police officer and two security officers employed by The College of New Jersey (TCNJ or the College), appeal from the trial court's order granting summary judgment and dismissing with prejudice their complaint against three supervisors and the College alleging a hostile work environment due to racial discrimination and retaliation under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and seeking punitive damages. Plaintiffs argue they established a prima facie case as to both causes of action and presented sufficient evidence that TCNJ was not shielded from liability based on its anti-discrimination policy, and also presented sufficient evidence to support a claim for punitive damages, in all instances to withstand summary judgment. We disagree and affirm.
On June 26, 2008, plaintiffs Lorenzo Shockley, Wayne Evans, and Armond Harris filed suit against TCNJ and their supervisors Raymond Scully, Matthew Mastrosimone, and Kevin McCullough*fn1 in the Law Division asserting LAD violations of a hostile work environment based on racial discrimination and retaliation. In August 2010, TCNJ filed a motion for summary judgment seeking to dismiss plaintiffs' complaint, joined in by the individual defendants. Plaintiffs submitted opposition and filed a cross-motion seeking partial summary judgment against TCNJ. Following oral argument on October l, 2010, the parties were given an opportunity to provide written submissions to the court. Judge Darlene J. Pereksta rendered an oral decision on February 1, 2011, granting summary judgment to all defendants, dismissing plaintiffs' complaint with prejudice, and denying plaintiffs' cross-motion, memorialized in an order of the same date. This appeal ensued.
On appeal, plaintiffs argue:
PLAINTIFFS HAVE ADDUCED SUFFICIENT PROOFS TO ESTABLISH A PRIMA FACIE CASE OF RACIAL DISCRIMINATION UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION.
THERE ARE SUFFICIENT PROOFS TO DEMONSTRATE THAT TCNJ'S ANTI-DISCRIMINATION POLICY WAS NOT EFFECTIVE, NOT WELL PUBLICIZED, AND NOT FOLLOWED.
THERE IS SUFFICIENT EVIDENCE OF RETALIATORY CONDUCT UNDER NJLAD.
THERE IS SUFFICIENT EVIDENCE OF WILLFUL INDIFFERENCE BY UPPER MANAGEMENT TO SUPPORT A CLAIM FOR PUNITIVE DAMAGES.
Based on our review of the record and applicable law, we are not persuaded by plaintiffs' arguments and affirm.
The facts presented in the record viewed in the light most favorable to plaintiffs, the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Shockley, Evans and Harris are all employed by TCNJ. Both Shockley and Harris are African-American and Evans is Jamaican. Shockley began working as a police officer in 2006, and Evans and Harris began working as security officers in approximately l997 and 200l, respectively. Plaintiffs have not been the only African-Americans working as security or police officers at the College throughout their employment, although they were in 2006.
The individual defendants are all Caucasian and employed by TCNJ. Scully has been employed since 2001, and was promoted from police officer to sergeant in 2006. McCullough has been employed since 2002, and was promoted from police officer to sergeant in 2009. Mastrosimone has been working as a police officer for TCNJ since 2003. The individual defendants were plaintiffs' supervisors at times, though the record is not clear as to the length and extent of these relationships.
Extensive depositions were taken in 2010. The individual parties were deposed, as well as the following TCNJ employees:
Associate Vice President of Human Resources (HR), Vivian Fernandez; Associate Director of HR, Donald Gordon; Vice President of Facilities Management, Construction and Campus Safety, Curt Heuring; Security Officer Anthony James Fresco; Security Officer James Nazario; Sergeant Marcie Montalvo; and Police Officer James Lopez.*fn2
Plaintiffs alleged the following, when viewed in the totality, constituted a prima facie case of a hostile work environment under the LAD: (1) day-to-day conduct of being given the "cold shoulder"; (2) "keyed" radio communications; (3) false accusations of sleeping on the job; (4) unnecessary reprimands; (5) harder tasks and denial of back-up; and (5) racial slurs. The following is the primary testimony and evidence that plaintiffs presented in each category.
Shockley stated in depositions that "[a]lmost from the beginning" of his employment, Scully gave him the cold shoulder and would not say "good morning" to him, and one morning he asked everyone in the room except him if they wanted take-out coffee. On another occasion in 2006 when he was a new officer, when Scully was covering for Shockley's regular supervisor, and Shockley was talking to himself under his breath about something Scully had instructed him to do, he told Shockley "very loudly" that he should do things Scully's way when he was in charge. Shockley also claimed Mastrosimone treated him in a rude or disrespectful manner by rolling his eyes and ignoring him when Shockley entered the room and greeted him. Harris explained he felt he was "invisible," describing how he would walk into a room, say hello, and rarely receive a response. Evans testified that, overall, he felt he and Harris were being treated "different" by defendants who, for example, would tell them to leave for a call "in a very rude way" or if he or Harris "call[ed] about something, they would not respond or respond when they [felt] like it." Officer Lopez noted in depositions his observations of defendants ignoring Shockley while speaking to an officer next to him. He also observed defendants publicly critiquing Shockley's police reports by making fun of misspelled words.
None of the plaintiffs testified about keyed radio transmissions; they relied on the deposition testimony of Police Officer Lopez and Security Officer Nazario. The officers explained the term "keying" described an interference that would occur whenever an officer activated his or her microphone while another officer was speaking over the radio, causing static and disrupting the radio transmission so it was garbled and inaudible. There was no allegation this ever happened to Shockley and no testimony regarding the dates or frequency of these incidents. Officers Lopez and Nazario stated it happened to them, but it seemed to happen to Harris and Evans more often than to others.
No witness claimed to have observed anyone deliberately keying radio transmissions. Officer Lopez stated, however, that the problem started happening to him the first "[f]ew weeks after [he] started as a security officer" when the individual defendants and Officer Mike Lacocious were working on the same shift. Officer Nazario suggested that the individual defendants and Sergeant Santiago were more likely to be working when Evans and Harris were interrupted, and would "have the ability to key their mikes."
False Accusations of Sleeping on the Job
Shockley related in depositions an incident when McCullough reported him for sleeping in his patrol car while on duty, although he was never disciplined for the incident. Shockley denied the allegation but admitted there were times that he, like other officers, slept in his vehicle while on duty. Harris and Evans were also written up on one occasion for sleeping on the job. Evans explained that while on patrol one night he and Harris went in to check an empty basement dormitory room. He believed Harris had an ankle sprain; he related that Harris had taken off his shoes, was sitting in a chair, and had stretched his feet out, rubbing his ankle. Evans had walked to the other side of the building. As Evans was returning, he observed McCullough entering with another person and showing him a telephone line. Evans greeted them, but they ignored him and left the building. McCullough apparently reported that the two men were laying across chairs, sleeping in the dark while on duty. Harris expressed concern that he was not given the chance to explain his side of the story to his supervisor before the incident was reported. Evans and Harris internally grieved the charges and no discipline was imposed.
Shockley discussed an occasion in which he and former Sgt. Steven Flemmings (a Caucasian officer) were running on the treadmill at the gym after hours when Mastrosimone and McCullough told them they were not supposed to be there. He understood that other officers used the gym although he had no personal knowledge of that fact, and he believed there was a recent policy stating that officers were allowed to do so provided they showed identification. A blotter entry was then written about the ...