United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter is before the Court on Defendants' motions for
summary judgment. (ECF Defendants. No. 36, 43, 35,
Luther Graham is a Senior Electrician employed by Monmouth
County Buildings and Grounds Department
(“County”). (First Amended Complaint
(“FAC”) ¶ 15, ECF 22). On March 22, 2016,
Plaintiff brought a claim against his employer, Defendant
Monmouth County Buildings and Grounds for Monmouth County,
New Jersey (“Defendant County”); Aaron Kinney
(Plaintiff's direct supervisor), Craig Bell (Kinney's
supervisor and General Supervisor); David Krzyanowski
(Supervisor of General Services, and Bell's supervisor);
and Robert Compton (Superintendent and Krzyanowski's
alleged various counts. His first count asserted violations
of 42 U.S.C. § 1981 (“Section 1981”) for
racial discrimination, retaliation for complaining of racial
discrimination and hostile work environment because of his
race and/or because of his complaints of race discrimination
against all Defendants. Plaintiff's second claim asserted
violations of the New Jersey Law against Discrimination
(“NJLAD”) for racial discrimination, retaliation
for complaining of racial discrimination and hostile work
environment because of his race and/or because of his
complaints of race discrimination against all Defendants.
(Compl. at 6; ECF 1).
18, 2016, once his administrative remedies were properly
exhausted, Plaintiff filed his First Amended Complaint to
include a third count for violations of Title VII of the
Civil Rights Act of 1964 (“Title VII”) for racial
discrimination, retaliation for complaining of racial
discrimination, and hostile work environment because of his
race and/or because of his complaints of race discrimination
against the County only. (FAC ¶ 6, ECF 22).
April 11, 2017, Plaintiff voluntarily dismissed his claims
for racial discrimination and hostile work environment based
upon race. (Bell SOF ¶ 8; ECF 38-1). The claims that
remain for the Court's review are claims for Retaliation
and Retaliatory Hostile Work Environment, both under federal
and state law.
Amended Complaint consists of 19 paragraphs of alleged facts,
depicting various incidents of alleged discrimination,
retaliation, and hostile work environment in support of the
above mentioned counts.
Plaintiff is a 50 years old African-American man who began
his employment with the County Buildings and Grounds
Department on or about 2004 in the position of
Electrician. (FAC ¶ 14-15). In August of 2007, the
County promoted Plaintiff to Senior Electrician. (County SOF
at ¶ 4). Plaintiff remains in the position of Senior
Electrician in the Monmouth County Buildings and Grounds
Department. (FAC at ¶15, ECF 22).
this Court understands it, Plaintiff is alleging that its
employer's discriminatory, retaliatory and hostile
actions, began following complaints he filed in 2015.
Specifically, Plaintiff alleges filing a complaint to
management on February 2, 2015 for selective enforcement of
the attendance and other policies against him (FAC ¶17);
Plaintiff also alleges filing another complaint on March 12,
2015 for discrimination (Id. ¶20), and on
October 1, 2015 for discrimination and retaliation. (FAC
¶29). For clarity, the Court has reorganized the events
alleged by Plaintiff in chronological order.
Project Coordinator Position
alleges that he was not hired for the position of
construction project coordinator in retaliation to the
complaints filed with his employer. On October 10, 2013,
Defendant Compton approved the posting for an
anticipated vacancy for the Construction Project Coordinator
position. (Compton SOF ¶ 22; ECF 35-2). The vacancy was
“anticipated” because the position was filled at
that point by another employee named Walter Gawron, who had
expressed that he may retire in 2014. (County SOF ¶ 33,
ECF 36-5). Plaintiff alleges that he was not granted an
interview for the Project Coordinator position. (Graham SOF
¶ 24; ECF 45-1); however, Plaintiff along with three
other County employees were interviewed for the position on
January 28, 2015. Id. Although the County eventually
narrowed down the applicants to Plaintiff and one other
individual, nobody was hired because Walter Gawron never
retired. (Compton SOF ¶ 23;¶ 33-35). The job
posting was ultimately abandoned. (County Br. at 16, ECF
rid of Luther” Comment
March 12, 2015, Plaintiff filed a written complaint with the
County, alleging that he was being discriminated based on his
race by Defendants Bell, Compton, and Krzyanowski. (FAC
¶ 19-20). Graham claims that because he filed the
complaint, Defendant Krzyanowski told Kinney that he wanted
to “get rid of” him; and he was very angry that
Plaintiff “had gone to Personnel”, and asked
something along the lines of “who was Luther [Graham]
to question us.” (Graham Br. at 15; ECF 45; Graham SOF
at 5, ECF 45-1).
Building & Maintenance Supervisor Positions
alleges that a number of discriminatory and retaliatory
actions followed in April 2015. Graham alleges “For
example, in or about April of 2015, Defendants management
pretexually denied Plaintiff the opportunity to interview for
a promotion to Assistant Building & Maintenance
Supervisor” on two occasions, and that the promotions
were subsequently given to less qualified, nonblack
applicants. (FAC 23-24). The County posted these two
positions on December 18, 2014.
Assistant Supervising HVAC Mechanic.
alleges that he was unable to apply for the Assistant
Building and Maintenance Supervisor position because it was
posted on December 18, 2014, as an Assistant Supervising HVAC
Mechanic position. (County SOF ¶ 31, ECF 36-5).
Essentially, Plaintiff argues that Defendants Compton, Bell,
and Krzyanowski manipulated these job postings to exclude him
from applying for higher positions in retaliation for his
filing complaints. (Graham SOF ¶ 18, ECF 45-1). However,
this position required applicants to hold the title of
Heating and Air conditioning Mechanic, which Plaintiff did
not hold. Thus, it appears that he was unable to apply
because he did not qualify for the positon. (County SOF
¶ 31; ECF 36-5).
General Supervisor of Building Services.
lacked required qualifications for the General Supervisor of
Building Services position as well, because as he admitted
that Plaintiff did not have a promotional title in building
services. (County Br. at 17; ECF 36-2; see also
County SOF ¶36; ECF 36-5). The person who obtained the
position, Scott Griffin, held such a title within the
Building Services promotional title chain. (Defendant County
Br. at 17; ECF 36-2).
about April 30, 2015, Graham again complained in writing to
Defendant of “on going harassment, ” and alleging
that he was subjected to repeated retaliatory and
discriminatory actions because Defendants pretextually denied
him the opportunity to interview for a promotion to Assistant
Building and Maintenance Supervisor. (County SOF at ¶
14, ECF 36-5; See FAC at ¶ 21-22, ECF 22). On or about
May 1, 2015 James Shirley, who took over Defendant Bell's
position as General Supervisor in January 2015, issued
Plaintiff a performance notice for lateness because Plaintiff
had clocked in late ten times from January to April 29,
2015. (Bell SOF ¶ 21, ECF 38-1;
Id. at ¶ 20). Plaintiff alleges that
“Defendant Individuals […] issued Plaintiff
pretextual discipline in or about April of 2015” (FAC
¶25). “Specifically, Plaintiff was disciplined for
being mere seconds late in or about April of 2015.”
(FAC ¶26). Plaintiff alleges that the disciplinary
action was issued in retaliation of his complains. (Graham
SOF ¶ 19; ECF 45-1). Defendant contests whether the
complaint was received before the notice was issued. Further,
Defendant Compton testified that lateness is not checked
every day but rather is part of an audit that is done on the
entire staff at once. (County SOF ¶ 22; ECF 36-5). As a
result of the May 2015 audit, “multiple”
employees were given notices of counseling for lateness.
(Id. at 23.) Plaintiff was included in that class,
as one of approximately 25 employees who were given
counseling notices as a result of being late. Id.
18, 2015, Plaintiff filed a written complaint with the
County. (Id. at ¶ 26). On July 30, 2015, Graham
filed a charge of employment discrimination with the EEOC and
the New Jersey Division on Civil Rights. (Id. at
¶ 15). The County responded to Plaintiff's February
2, March 12, April 30, and June 18, 2015, complaints in
writing on August 5, 2015. (Id.) The County noted
that it investigated Plaintiff's complaint that he was
denied an interview for the position of Project Manager and
concluded that the County interviewed Plaintiff on January
28, 2014. (Id.) The County also concluded that
Kinney denied that Defendant Krzyanowski used the phrase
“get rid of” referring to Plaintiff, and admitted
that that was only his interpretation of what Krzyanowski had
said to him. (Id. at ¶ 17). Plaintiff
acknowledged receipt of the County's written response to
his three complaints and admitted that the County's
response answered his complaints. (Id. at ¶
Miss Daisy” Comment
at least 2013, Plaintiff rode with Defendant Kinney,
Plaintiff's direct supervisor, to jobs about two to three
times per week because Kinney started relying on him in more
of a leadership role. (Id. at ¶ 10). Kinney
acknowledged that Plaintiff's new leadership role caused
problems with the staff and that he received complaints about
Graham not doing his work. (Id. at ¶ 11). On
March 6, 2013, Defendant Bell advised Kinney that if Kinney
needed down time, he “shouldn't be riding around
with [Plaintiff].” (Id. at ¶ 12).
September 15, 2015, Defendant Kinney told Plaintiff that they
were no longer allowed to ride to jobs together in the same
vehicle. (FAC at ¶ 27, ECF 22). In the Complaint
Plaintiff alleges that Defendants referred to him and Kinney
riding together in a vehicle as “Driving Ms.
Daisy.” (FAC at ¶ 28). In his finding of facts,
Plaintiffs adds more details to this specific instance
stating that he supports that he is the only electrician
forced to never ride with his supervisor and argues that this
occurred ever since him and Kinney complained about
Krzyzanowski referring to the pair as “Driving Ms.
Daisy.” (SOF ¶ 26 (a), ECF 45-1) Kinney is
Caucasian and Plaintiff is African-American. Id.
Defendants dispute who among them made this statement first.
(SOF ¶ 26, ECF No. 45-1). On the same day, Plaintiff
requested reconsideration of the County's findings in its
August 5, 2015, letter response to Plaintiff's three
previous complaints. (Id. at ¶ 27). The County
responded in writing on September 24, 2015. (Id.)
Plaintiff received the letter and then appealed the
County's September 24, 2015 response to the Civil Service
Commission on September 30, 2015. (Id.).
October 1, 2015, Plaintiff filed a written complaint with the
County, alleging he was being subjected to discrimination and
retaliation. (FAC at ¶ 29, ECF 22). Plaintiff alleged
that he had not been considered for any promotion positions,
his complaints of discrimination had not been properly
investigated, and he continued to be subjected to a hostile
work environment based on racial discrimination and
retaliation for complaints of discrimination. (Id.
at ¶ 30-31). Defendant County responded to this
complaint on February 10, 2016, and Plaintiff received this
letter. (Id. at ¶ 28-29).
Maintenance Repair Position
applied for a Supervising Maintenance Repair Position which
was posted as an anticipated vacancy on or about March 8,
2016. (County SOF ¶ 42; ECF 36-5). However, Defendant
Compton abandoned this job posting because Human Resources
informed him that if he hired someone for this position,
another County employee would be laid off. Id.
Supervisor-Building Maintenance Position
also applied for the Crew Supervisor-Building Maintenance
position that was posted as an anticipated vacancy on or
about March 8, 2016. (Defendant County Br. at 19; ECF 36-2).
Graham was interviewed for the position. (County SOF
¶43; ECF 36-5). However, another candidate, Robert
Briscoe, was hired. Defendant Compton supports that the other
candidate simply had a better interview, thus was awarded the
position. Id. Parties have not provided any records
regarding Briscoe's qualifications.
alleges that he was not hired for a Management Assistant
position and someone less qualified was. Defendants submit
that a Management Assistant position was posted on July 15,
2016. Plaintiff was interviewed for the Management Assistant
position and that “Graham was dismayed that the
position would have been a demotion and a pay ...