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Benjamin v. City of Atlantic City

United States District Court, D. New Jersey

March 6, 2014

MARK J. BENJAMIN, Plaintiff,
v.
CITY OF ATLANTIC CITY, et al., Defendants.

Demetrius J. Parrish, Esq., Philadelphia, PA, Attorney for Plaintiff,

Catherine A. Tuohy, Esq., TUOHY & TUOHY, ESQS., Atlantic City, NJ, and Patrick J. Wolfe, Esq., Sharlenn E. Pratt, Esq., ZARWIN, BAUM, DEVITO, KAPLAN, SCHAER & TODDY, PC, Philadelphia, PA, Attorneys for Defendant City of Atlantic City

Grace K. Flanagan, Esq., Patrick J. Wolfe, Esq., Sharlenn E. Pratt, Esq., ZARWIN, BAUM, DEVITO, KAPLAN, SCHAER & TODDY, PC, Philadelphia PA, Attorneys for Defendant John J. Mooney, III.

OPINION

JEROME B. SIMANDLE, Chief District Judge.

I. Introduction

Plaintiff Mark J. Benjamin, a sergeant in the Atlantic City Police Department, alleges that he suffered racial discrimination at work when he was denied a promotion, when he was demoted to the position of patrolman, and when his internal complaints were not investigated properly, among other things. He also alleges retaliation for complaining about discrimination. He brings this suit against Defendant City of Atlantic City ("the City") and Defendant John J. Mooney, III, the former police chief of the Atlantic City Police Department. Plaintiff is African-American.

Before the Court are two motions for summary judgment, filed by the City [Docket Item 41] and Defendant Mooney [Docket Item 44]. As explained below, even assuming Plaintiff makes a prima facie showing of discrimination and retaliation, Plaintiff does not adduce evidence to counter the City's proffered nondiscriminatory and non-retaliatory justifications for each allegedly adverse employment action. Claims against Defendant Mooney similarly fail because Mooney is not a proper defendant under Title VII or 42 U.S.C. § 1981, and claims against him under the New Jersey Law Against Discrimination ("NJLAD") are time-barred. The Court will grant both motions for summary judgment.

II. Background

Plaintiff Mark Benjamin, who is black, began working as a police officer in the Atlantic City Police Department ("ACPD") in 1998. (Statement of Undisputed Material Facts ("SMF") [Docket Item 41] ¶ 1.) After a couple of years on patrol, he was assigned continuously to investigative units, which entitled him to a pay increase of 3 percent. (SMF ¶ 8.) Plaintiff did not experience trouble in the police department until 2008.

In November 2008, a newspaper blogger made comments about Plaintiff, allegedly suggesting that Plaintiff was receiving favorable treatment with respect to his assignments, which he did not deserve. (Id. ¶¶ 13-16.) Plaintiff filed an internal complaint against an unknown police officer, suspecting him or her of writing the blog post. (Id. ¶ 15; City Ex. F.) Internal Affairs produced a 10-page report that detailed the discussions the investigating officer had with Plaintiff and others, and the measures taken to investigate the claim. (City Ex. F.) The report states that the Atlantic County Prosecutor's Office declined to conduct a criminal investigation, and Internal Affairs concluded that the internal "investigation failed to disclose sufficient evidence to clearly prove or disprove the allegations." (Id. at 8-9.)

In August or September 2009, Deputy Chief Henry White discussed with Plaintiff a possible appointment to the rank of Vice Sergeant, which included supervisory duties and a 3 percent pay increase. (SMF ¶ 33.) White ultimately proposed three names for the assignment to Chief Mooney, including Plaintiff, Sergeant Darryl Hall, and one other sergeant. (White dep. [Docket Item 50-3] at 9:1-11.) White testified that he preferred that Plaintiff get the assignment, but he did not express that preference to Mooney. (Id. at 10:12-15.) Mooney selected Hall for the assignment. (Benjamin dep. [Docket Item 41-2] at 52:4-7.) Plaintiff testified that he and Hall "had the same qualifications, " and, although Hall had less investigative training, Plaintiff agreed that Hall "wasn't less qualified in narcotics, per se." (Id. at 54:7-15, 210:19-23.) Plaintiff stated he did not have seniority over Hall.[1] (Id. at 62:14-18.) Plaintiff stated that, in terms of seniority, Hall "might have me by a couple of months." (Id. at 210:24-211:2.)

In January 2010, Plaintiff filed another complaint with Internal Affairs after one detective told Plaintiff that two other officers had called Plaintiff a racist. (SMF ¶¶ 21-23.) Internal Affairs produced a five-page report which observed differences of opinions about what happened including denials by the accused officers. (City Ex. G.) Internal Affairs concluded that the "alleged incident did not occur." (Id. at 5.)

In April 2010, Plaintiff filed charges with the Equal Employment Opportunity Commission. On June 10, 2010, as a result of a budget shortfall, the mayor instituted layoffs and demotions throughout the ACPD. Even Chief Mooney was demoted. (Benjamin dep. at 100:13-18.) Plaintiff, who had achieved the rank of Sergeant, was demoted to patrolman, although he remained one of the top ranking patrolmen. (SMF ¶ 43; Benjamin dep. at 101:7-11.) Plaintiff testified that six sergeants were demoted; three were African-American and three were white. (Benjamin dep. at 104:2-13.) In November 2010, Plaintiff was promoted again to the rank of Sergeant. (SMF ¶ 11.)

When the demoted or laid-off officers turned in their weapons or equipment, Sergeant Stacy Falcone allegedly called Plaintiff a racist. (SMF ¶ 51.) Falcone and Plaintiff exchanged words. Plaintiff filed an Internal Affairs complaint about Falcone's comments. (SMF ¶ 53.) After an internal investigation, Deputy Police Chief Dooley determined that the complaint could not be sustained. (City Ex. H.)

After Plaintiff filed this lawsuit on June 8, 2012, a fellow officer filed an internal complaint against Plaintiff for his handling of a traffic stop to apprehend a suspect for driving under the influence. After an investigation, the complaint was not sustained by Internal Affairs. (City Ex. I.) Plaintiff was similarly exonerated in a separate matter after he had been accused of making disparaging remarks about another officer. (City Ex. J.)

III. Standard of Review

A court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is "genuine" if, based on the evidence in the record, a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the suit. Id . Speculation or allegations unsupported by fact cannot create a genuine issue of fact precluding summary judgment. Geraci v. Moody-Tottrup Int'l, Inc. , 905 F.Supp. 241 247 (W.D. Pa. 1995), aff'd, 82 F.3d 578 (3d Cir. 1996).

The court will view evidence in the light most favorable to the non-moving party and "all justifiable inferences are to be drawn in [that party's] favor." Hunt v. Cromartie , 526 U.S. 541, 552 (1999). Fed.R.Civ.P. 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Marten v. Godwin , 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986)).

IV. The City's Motion for Summary Judgment

The City moves for summary judgment on the Title VII claims (Counts I, II and III) because nondiscriminatory and nonretaliatory reasons motivated each action taken against Plaintiff. The City also moves for summary judgment on the claim brought pursuant to 42 U.S.C. § 1981 (Count IV), because § 1981 provides only rights, not a remedy, and Plaintiff does not bring claims under § 1983. Finally, the City moves for summary judgment on the NJLAD claims (Counts V and VI), because the claims are time-barred and because Plaintiff does not adduce evidence sufficient to sustain his claim.

A. Title VII claims

Title VII makes it unlawful for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a). The statute also prohibits employers from retaliating against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The statute defines the term "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, " with certain exceptions not relevant here. 42 U.S.C. § 2000e(b).

Where, as here, the plaintiff does not have direct evidence of racial discrimination (see Pl. Opp'n [Docket Item 50] at 18 ("indirect evidence to the effect that Plaintiff Benjamin was discriminated against... exists")), the Third Circuit employs the flexible burden-shifting framework announced in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-03 (1973). See Burton v. Teleflex Inc. , 707 F.3d 417, 426 (3d Cir. 2013). First, the plaintiff must establish a prima facie case of racial discrimination. McDonnell Douglas , 411 U.S. at 802. Although the prima facie proof required will vary in differing factual situations, on a claim alleging the failure to promote, the plaintiff must prove by a preponderance of the evidence that (1) he is a member of a racial minority, (2) he applied and was qualified for an available position, (3) he was not selected, despite his qualifications, and (4) the employer instead selected a non-member of the protected class or continued to consider candidates who shared the plaintiff's qualifications. See id.; Bray v. Marriott Hotels , 110 F.3d 986, 989-90 (3d Cir. 1997); Bennun v. Rutgers State Univ. , 941 F.2d 154, 170 (3d Cir. 1991).

Upon a prima facie showing, the burden of production shifts to the defendant to offer a legitimate, nondiscriminatory justification for the adverse employment action. Burton , 707 F.3d at 426. Then the burden shifts back to the plaintiff to "provide evidence from which a factfinder could reasonably infer that the employer's proffered justification is merely a pretext for discrimination." Id . Plaintiff's evidence "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder ...


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