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Barrentine v. New Jersey Transit

United States District Court, D. New Jersey

September 2, 2014

NEW JERSEY TRANSIT, et al., Defendants





Page 531

Kevin McNulty, United States District Judge.

This matter comes before the court on the motions of Defendants New Jersey Transit and George Piper (Docket No. 37), and Defendants Amalgamated Transit Union Local 822, Sherman Ariel, Calvin Osborn,[1] and Vernice Ross (Docket Nos. 40, 41) to dismiss the Second Amended Complaint. The Plaintiff, Gabe S. Barrentine, alleges incidents of unacceptable racist speech or conduct, but his complaint must nevertheless be dismissed. Barrentine failed to exhaust his Title VII employment discrimination claim against the labor union,

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and the individual defendants are not subject to suit under Title VII. In addition, he has failed to plead facts sufficient to support a Title VII claim against any of the defendants. Therefore, the motions to dismiss are GRANTED without prejudice to the filing of a properly supported motion to amend the complaint.


Barrentine is a resident of Paterson, New Jersey. Second Amended Complaint (Docket No. 27). He brings the Second Amended Complaint (" SAC" ) against New Jersey Transit Bus Operations (" NJT" ), George Piper, Amalgamated Transit Union Local 822 (" ATU" ), Sherman Ariel, Calvin Osborn, and Vernice Ross. Id. The SAC alleges violations of Title VII of the Civil Rights Act of 1964 (" Title VII" ), the New Jersey Conscientious Employee Protection Act (" CEPA" ), the New Jersey Law Against Discrimination, and common law claims of negligence, breach of the duty of good faith, intentional and negligent infliction of emotional distress, and harassment. Id.

Because Barrentine's Title VII claims arise under the laws of the United States, the Court has original federal-question jurisdiction over this case pursuant to 28 U.S.C. § 1331. Diversity of citizenship is absent. See 28 U.S.C. § 1332. The remaining state law claims are therefore in the case only pursuant to the court's supplemental jurisdiction. See 28 U.S.C. § 1367.

A. Factual Background

On June 25, 1988, Barrentine started working for NJT as a bus operator out of the Market Street garage in Patterson, NJ. SAC ¶ 1. Defendant John Piper was a supervisor at Barrentine's garage. Id. ¶ 3. Defendant Ariel Sherman, Piper's supervisor and a close friend, was a member of ATU's executive board. Id. ¶ ¶ 13, 14. Defendants Calvin Osborn and Vernice Ross were also NJT employees, union representatives, and members of ATU's executive board. Id. ¶ ¶ 15-18.

Supervisors at NJT rotated every three years. Id. ¶ 3. Barrentine alleges that he experienced difficulties with Piper each time Piper was stationed at his garage. Id. Barrentine alleges that Piper used racial epithets towards him on several occasions from 2009 to 2011, referring to him as a " country ape" and " monkey boy." Id. These epithets were usually used in the presence of several other (unnamed) employees while Barrentine played pool in the garage during breaks. Id. Osborn, who also supervised Barrentine, allegedly used racial epithets as well, referring to Barrentine as a " Nigger, Country Ape, and Monkey Boy." Id. ¶ 17.

In November 2008 Barrentine saw Piper after work hours at a go-go bar. Id. ¶ 4. Piper told Barrentine that he would fire him if he told anyone that he saw Piper at the bar. Id. Afterwards, believing that Barrentine had told other co-workers about their encounter, Piper engaged in retaliatory behavior against him. Id. Piper ordered two undercover inspectors to conduct an investigation by riding Barrentine's bus for two weeks. Id. ¶ 5. At the end of the observation period, Barrentine was cited for not announcing stops and was suspended for three days without pay. Id. Barrentine concedes that there was a regulation requiring that bus drivers announce the stops, but alleges that the " custom and practice" was otherwise. Id. On or about May 22, 2009, Piper suspended Barrentine again, this time for not wearing his seatbelt. Id.

Barrentine also had difficulties with Defendant Ross. During Ross's employment at NJT, she became pregnant by the father of Barrentine's grand-nephew (in

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other words, the significant other of Barrentine's niece). Id. ¶ 19. Because that person continued to have a relationship with both Ross and Barrentine's niece, Ross was jealous, and her hostility carried over to Barrentine himself. Id.

On May 21, 2009, Barrentine was awarded a safe driving citation for driving his bus for 20 years without an accident. Id. ¶ 1. However, Barrentine had a record of several disciplinary infractions. On April 6, 1995, Barrentine tested positive for THC Metabolite during a random urine test and was suspended for 30 days. Id. ¶ 2. He was referred to the Employee Assistance Program (EAP), completed the program, and returned to full duty in May of 1995. Id. In the next 13 years, Barrentine was randomly drug tested five to six times without further incident. Id. ¶ 5. Then, on December 17, 2009, Barrentine tested positive for THC during a random test. Id. ¶ 6. He was placed in EAP and suspended for 30 days. Id. Thereafter, he was required to undergo weekly drug tests. His tests were negative until January 21, 2011, when he tested positive for cocaine metabolite and was suspended immediately. Id.

Barrentine disputes the accuracy of the drug test. Id. ¶ 8. In 2009, he had started taking prescription pain medication for a shoulder injury he received while in the military. Id. Barrentine told Defendants that he was taking OxyContin, Oxycodone, HCL, Nexium, Aciphex, cycopenzaprine, HCL, and Naproxen. Id. He denied ever using cocaine. Id.

Barrentine's ATU representative told him to obtain a letter from his physician attesting to his condition and prescribed medications. Id. ¶ 9. Barrentine alleges that his physician was " reluctant" to do so because " it was not within his specialty." Id. Still, Barrentine urged the union representative to obtain an expert on his behalf, but ATU did not do so. Id.

On Barrentine's behalf, ATU filed a grievance against NJT. Id. ¶ 10. ATU represented Barrentine during all four steps of the grievance procedure, but the grievance was denied at each step. Id. On July 8, 2011, ATU notified Barrentine that he could appear before the executive board to discuss his right to an arbitration. Id. Barrentine appeared before the board and requested that the matter be arbitrated, and that ATU retain a toxicologist to challenge the lab tests. Id. ¶ 11. He alleges that another reason he requested arbitration was that he believed that Piper discriminated against him because of the go-go bar incident. Id. ¶ 11. The board, however, decided not to proceed to arbitration and informed Barrentine of that decision on July 18, 2011. Id. ¶ 12.

B. Procedural History

Barrentine filed a charge with the Equal Employment Opportunity Commission (" EEOC" ) and the EEOC issued a right to sue letter on April 30, 2012. SAC ¶ 27. Barrentine filed his district court complaint pro se on June 27, 2012. (Docket No. 1). At the time of filing, Barrentine applied for permission to proceed in forma pauperis and requested pro bono counsel. (Docket Nos. 1, 2). Hon. Esther Salas, the District Judge initially assigned to the case, denied the request for pro bono counsel but granted the application to proceed in forma pauperis. Barrentine filed an amended complaint pro se on July 13, 2012. (Docket No. 8).

The case was re-assigned to me on August 1, 2012. Barrentine retained counsel who entered an appearance on his behalf on January 9, 2013. (Docket No. 17). After obtaining an extension of time, ATU filed an answer to the amended complaint on January 14, 2012. (Docket Nos. 14, 18). On April 26, 2013, NJT filed a motion to

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dismiss the complaint for failure to effect service pursuant to Fed.R.Civ.P. 4(m). (Docket No. 25). Three days later, on April 29, 2013, Barrentine filed another amended complaint without leave of court. (Docket No. 26). Then, on May 1, 2013, he filed another amended complaint. (Docket No. 27). Although this was actually the fourth complaint that Barrentine submitted, he and the Defendants refer to it as the " Second Amended Complaint" (" SAC" ). To avoid confusion, I do the same, and, like the parties, I will treat this (Docket No. 27) as the currently operative complaint. ATU answered the SAC on June 5, 2013. (Docket No. 33).

The motion to dismiss pursuant to Rule 4(m) was referred to Magistrate Judge Michael A. Hammer for a report and recommendation. Judge Hammer recommended denying the motion (Docket No. 34), and I adopted his report and recommendation on August 28, 2013 (Docket No. 35).

On September 4, 2013, NJT and Piper moved to dismiss the SAC pursuant to Rule 12(b)(6). (Docket No. 37). On October 16, 2013, Defendants Ariel, Osborn, and Ross filed an answer with affirmative defenses. (Docket No. 39). Simultaneously, those individual Defendants and ATU (together, " ATU Defendants" ), moved to dismiss the ...

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