July 3, 2013
KENNETH JOHNSON, Plaintiff-Appellant,
STATE OF NEW JERSEY, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, JOHN J. FARMER, STATE OF NEW JERSEY-DIVISION OF STATE POLICE, COLONEL CARSON DUNBAR, SUPERINTENDENT OF THE DIVISION OF STATE POLICE, RICHARD E. TOUW, ROBERT D. DUNLOP, EDGAR J. HESS, RICHARD H. LANE, FRANK M. SIMONETTA, DEAN K. SASSAMAN, DAN PILLA and JOSEPH REPHSA, Defendants-Respondents, and FRED H. MADDEN, Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2013 
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1265-01.
Daniel Louis Grossman argued the cause for appellant.
Vincent J. Rizzo, Jr., argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel and on the brief; Andrew J. Sarrol, Deputy Attorney General, on the brief).
Before Judges Espinosa and Guadagno.
Kenneth Johnson appeals from the October 6, 2011 order of the Law Division granting summary judgment to defendants and dismissing plaintiff's complaint alleging a hostile work environment, disparate treatment, and discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the New Jersey Constitution. We affirm.
Plaintiff entered the New Jersey State Police Academy in 1982. While at the Academy, plaintiff, who is African-American, claims he was subjected to race discrimination by his peers and superiors. Plaintiff graduated from the Academy in 1983 and worked as a road Trooper from 1983 to 1987. During this time period, plaintiff claims that other Troopers transmitted racial slurs over the police radio and ordered plaintiff to target minorities when making traffic stops.
Plaintiff was promoted to Detective in 1987. From 1987 to 1988, plaintiff was assigned to the State Government Securities Unit (SGSU), where he claims he was treated as an inferior and subject to derogatory language. In October 1988, plaintiff was transferred to the Investigations Bureau. He claims his superiors transferred him out of the SGSU to avoid having to promote him, however plaintiff was promoted to Detective II in 1990 and Detective I in 1992.
In 1992, plaintiff claims that his supervisor, Trooper Daniel O'Connor, pasted images of Al Jolson into the credentials of minorities. After plaintiff complained to his Lieutenant, Trooper O'Connor was disciplined with a summary court-martial.
In 1993, plaintiff was asked by Lieutenant Richard Touw to join the newly-created Cargo Theft Unit (CTU). Plaintiff joined CTU in September 1993 and remained there until March 1994 when he was transferred to the Auto Unit. Plaintiff claims that during his time in the CTU, Lieutenant Touw discriminated against him, however, plaintiff's only support for this allegation was that Lieutenant Touw gave plaintiff a poor performance evaluation and gave another officer credit for plaintiff's work. Plaintiff was unable to identify any specific actions by Lieutenant Touw to support his claim. Plaintiff also claims that he was given older cars and less efficient equipment because he was a minority, but offers no factual support for this allegation.
Plaintiff was promoted to Detective Sergeant in February 2003; to Detective Sergeant First Class in December 2004; and to Lieutenant in January 2008. Plaintiff claims he should have been promoted sooner to each position, but failed to provide any substantiation that he was denied promotions based on discriminatory reasons. Moreover, plaintiff was the subject of several disciplinary proceedings and concedes that, during the pendency of these investigations, he was ineligible for promotion.
On April 20, 2001, plaintiff filed a complaint alleging racial discrimination and a hostile work environment. Two amended complaints were filed in 2003, and a third amended complaint was filed in 2005. In 2011, defendant filed a motion for summary judgment. On October 6, 2011, the Law Division heard oral argument and granted the motion, dismissing plaintiff's complaint. As to plaintiff's hostile work environment claim, the judge determined that most of the specific acts alleged occurred in the late 1980's and early 1990's, well beyond the statute of limitations. The judge then found that the State provided legitimate, non-discriminatory reasons for any delay in plaintiff's promotions, including the numerous disciplinary investigations that precluded his promotion during their pendency, and that other candidates for promotion were ranked higher on the promotional ladder. The judge further found that plaintiff had failed to establish the pretextual nature of the reasons given by defendants.
On appeal, plaintiff claims that his LAD claims are valid and the "discrete acts" of discrimination trigger the continuing violation doctrine and are thus not barred by the statute of limitations.
Our review of a grant of summary judgment is de novo and we apply the same standard governing the trial court under Rule 4:46. Dugan Constr. Co., Inc. v. N.J. Tpk. Auth., 398 N.J.Super. 229, 238 (App. Div.), certif. denied, 196 N.J. 346 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That standard requires us to "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In Montells v. Haynes, 133 N.J. 282, 286-87 (1993), the Court held that a two-year statute of limitations applies to all claims filed under the LAD and that the period runs from the date on which the cause of action "accrued." This would bar any of plaintiff's claims arising more than two years prior to the filing of his first complaint on April 20, 2001. In rejecting plaintiff's hostile work environment claim, the Law Division found that "the specific acts alleged in terms of any type of offensive utterances to the plaintiff here all were in the late '80s, early '90s."
Plaintiff claims that the continuing violation doctrine provides an exception to that limitations period. In Wilson v. Wal-Mart Stores, the Court recognized the continuing violation doctrine in a LAD case and observed that "the cumulative effect of a series of discriminatory or harassing events represents a single cause of action[.]" 158 N.J. 263, 273 (1999).
Plaintiff suggests his hostile work environment and failure to promote claims should be viewed together as part of an "organizational culture" within the State Police which supported a continuous pattern of discrimination. However, the continuing violation doctrine "does not permit . . . the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable." Roa v. Roa, 200 N.J. 555, 569 (2010). Because plaintiff concedes that each of the discrete acts alleged in his complaint are independently actionable, his argument that these acts "trigger" the continuing violation doctrine must fail.
As to plaintiff's failure to promote claim, the Law Division employed the procedural burden-shifting methodology announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677-78 (1973). Under that procedure:
(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate non-discriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application.
[Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988) (citations omitted).]
The Law Division found that plaintiff met the first McDonnell Douglas prong of establishing a prima facie case of discrimination. The burden then shifted to the employer to "articulate a legitimate, nondiscriminatory reason for the employer's action." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005). The Law Division accepted the reasons proffered by the State that other candidates for promotion were ranked higher than plaintiff, and that several disciplinary investigations were ongoing between 1997 and 2003 which precluded plaintiff's promotion while they were pending.
The court then examined the third McDonnell Douglas prong, where "the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Ibid. To prevail, the plaintiff must show that the State's reason was both false and "motivated by discriminatory intent." Ibid.
After examining the record in detail, the Law Division found nothing to indicate that the proffered reasons were not the "real reasons" for the delay in plaintiff's promotions. The judge found the State's position "unassailable because they have specific information and references and facts that have been put into the record with respect to the investigations that occurred during that time, the substantiation of those investigations, the [plaintiff's] compliance status, [and] the ranking of the other troopers ahead of him."
The conclusions of the Law Division are well supported in the record and we affirm substantially for the reasons stated by Judge Hurd in his oral decision. Plaintiff's remaining arguments do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).