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Allison v. New Jersey Transit Corporation

United States District Court, D. New Jersey

November 19, 2014

CURT ALLISON, Plaintiff,


WILLIAM J. MARTINI, District Judge.

Plaintiff Curt Allison brings this action against New Jersey Transit Corporation, Marco Costa, and David DeGennaro (collectively "Defendants"), alleging various state and federal statutory, constitutional and common law claims. This matter comes before the Court on Defendants' motion for summary judgment under Federal Rule of Civil Procedure 56. There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendants' motion for summary judgment is GRANTED.


The following facts are undisputed.[1] Plaintiff is an African-American male who is Muslim. At all relevant times, Plaintiff has been an employee of Defendant New Jersey Transit Corporation ("NJT"). (Statement of Material Facts ("SOMF") at ¶ 1). Defendant NJT is a public entity corporation, chartered by the State of New Jersey, to provide public transportation. (Compl. at ¶ 2). At all relevant times, Defendants Marco Costa and David DeGennaro were employees of NJT. (Compl. at ¶¶ 7, 9; SOMF at ¶¶ 3, 6).

The 2009 Incident and Disciplinary Proceedings

In a 2009 internal meeting, NJT banned employees from engaging in horseplay, which included the exchange of insults. Id . at 2. On April 21, 2009, Costa submitted a written statement to NJT management that accused Plaintiff of insulting him while working on an NJT rail car. (SOMF at ¶¶ 3-5). Specifically, Costa alleged that Plaintiff called him a "bitch" as Costa was about to leave the car. ( Id . at ¶ 5). DeGennaro also submitted a written statement corroborating Costa's allegations. ( Id. at ¶ 7). Additionally, NJT employees who witnessed the alleged incident submitted written statements. Id . at ¶ 8. Plaintiff submitted a written statement that diverged from Costa's version of the story. Id . at ¶ 9. In that statement, Plaintiff alleged that he merely repeated the name "bitch boy" after it was already directed at an NJT foreman. Plaintiff further alleged that Costa became angry and began to walk away, to which Plaintiff replied "if you can't handle the heat of a conversation that wasn't aimed at you[, ] stay out of the kitchen." Id .

On May 7, 2009, NJT issued a notice to Plaintiff related to the April 21, 2009 incident. The notice informed Plaintiff that he was charged with violating NJT rules by creating a hostile work environment. (Def's Motion, Ex. K). Pursuant to Plaintiff's union contract, proceedings were held from July 14, 2009 through April 27, 2011 to determine whether Plaintiff committed the alleged offense. (SOMF at ¶ 13). Shortly after the proceedings concluded, NJT sent Plaintiff a notice of discipline indicating that Plaintiff would receive a ten-day deferred suspension for creating a hostile work environment on April 21, 2009. (Def's Motion, Ex. L).

Plaintiff has testified that he and DeGennaro were friendly prior to the April 2009 incident and that he has no reason to believe that Costa and DeGennaro resented him because of his race. (Allison Dep., 32.3-10). He has also testified that he has no reason to believe that Costa and DeGennaro knew that he was a Muslim. (Allison Dep., 32.11-18).

The 2010 Incident and Disciplinary Proceedings

Plaintiff was also disciplined for an incident that occurred in 2010. On September 19, 2010, Plaintiff found racial and religious epithets displayed in graffiti on the bathroom walls. (SOMF at ¶ 38). He also found a "bad air sponge" on which someone wrote anti-African American epithets. ( Id .) Plaintiff reported his finding to union president James Thomas, who subsequently relayed the information to the facility manager, Tim Leiner. (SOMF at ¶¶ 39-40). Upon hearing about the sponge, Leiner approached Plaintiff to investigate. Leiner claims that he took a photo of the sponge, placed the sponge in the garbage, and sent the photo to the Equal Employment Opportunity (EEO) Office. (SOMF at ¶ 43). Plaintiff has acknowledged that he did not report the sponge to the EEO Office because he knew it had already been reported. (Allison Dep. II, 9.12-20).

Unhappy with Leiner's response to the situation, Plaintiff contacted James Thomas, who instructed Plaintiff to keep the sponge in his locker and raise the issue at the next day's safety meeting. (SOMF at ¶¶ 45-46). Safety meetings were held each morning to discuss safety issues and work assignments. (SOMF at ¶ 49). The day after finding the sponge, Plaintiff was assigned to the Track 2 safety meeting. (SOMF at ¶ 50). After attending the Track 2 safety meeting, Plaintiff entered the Track 1 safety meeting while in possession of the sponge and asked foreman Frank Pionegro to address the sponge issue. Having already announced that employees are not allowed to vandalize NJT property or equipment, Pionegro refused Plaintiff's request. (SOMF at ¶¶ 51-57). After Pionegro refused, Plaintiff displayed the sponge to workers on Track 1 and recited the racial epithets written in graffiti. According to Pionegro, Plaintiff used profanity while reciting the racial epithets written on the sponge while exclaiming "see what they do here?" (Def's Motion, Ex. Q). Pionegro's recollection is consistent with a written statement from Plaintiff's supervisor - Gerard Curcio - who observed that Plaintiff was trying to "insight [sic] his co-workers by the tone of his voice and his gestures." (Def's Motion, Ex. P). Other witnesses similarly observed Plaintiff vocalizing racial epithets. (See Def's Motion, Exs. O, M, R). Plaintiff has also conceded that he likely displayed the sponge at the safety meeting. (Allison Dep., 77.13-17).

Proceedings related to the 2010 incident were held in 2011 and 2012. (SOMF at ¶ 66). After the proceedings concluded, NJT informed Plaintiff that he was receiving a five-day deferred suspension for creating an uncomfortable work environment on September 20, 2010. (Def's Motion, Ex. S).

Past NJT Actions

Plaintiff has also been involved in other lawsuits against NJT. In 2008, Plaintiff filed a lawsuit against NJT for discrimination, captioned Allison v. New Jersey Transit Corp . 08-cv-3150 (WJM-MF). While that case settled in 2009, Plaintiff subsequently participated in a separate state court action against NJT, captioned Carcano v. New Jersey Transit Corp ., No. L-9846-08. (Compl. at ¶¶ 18-20). Many of the individuals involved in the ...

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