United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Plaintiff Clifford Jefferson
El Bey's "Affidavit in support of Summary Judgment
as a Matter of Law" (ECF Nos. 128, 133) and Defendant
Robert Wood Johnson's (hereinafter, "RWJ")
Motion for Summary Judgment. (ECF No. 132). In reviewing
Plaintiff's papers liberally, the Court considers
Plaintiff's affidavits as a motion for summary judgment.
See Erickson v. Pardus, 551 U.S. 89, 94
(2007). Plaintiff claims that RWJ wrongfully
refused to promote him due to his religious beliefs, in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. For the reasons
discussed herein, Plaintiffs Motion is denied, and
Defendant's Motion for Summary Judgment is granted.
13, 2000, Plaintiff was hired by RWJ as a Senior Central
Sterile Processing ("C.S.P.") Technician and is a
member of Teamsters Local 97 (hereinafter, the
"Union"). (Defendant's Statement of Undisputed
Material Facts ["SUMF"] at ¶ 5). Senior C.S.P.
Technicians are responsible for, among other things,
sterilizing medical instruments and disposing medical waste.
(Id. at ¶ 13). The C.S.P. Technician position
is covered by a Collective Bargaining Agreement
("CBA") between RWJ and the Union. (Id. at
¶ 5; ECF No 132-4 at 27-36, "CBA").
RWJ employee, Plaintiff attended orientation, received an
employee handbook and training on the hospital's
policies, including RWJ's Equal Employment Opportunity
("EEO") Policy, Seniority Policy, and the Transfers
and Promotion Policy. (Id. at ¶¶ 6-7).
RWJ's EEO Policy states, in pertinent part, that
"all employment decisions, including but not limited to
. . . promotions, will be made without regard to race, color,
religion, [and] creed." (Id. at ¶ 8; ECF
No. 132-4 at 38, "EEO Policy"). With regards to
transfers, the Seniority Policy states, "[a]ll other
things being equal, hospital seniority determines preference
for a transfer." (Id. at ¶ 9; ECF No.
132-4 at 40, "Seniority Policy"). Most importantly,
RWJ's Transfers or Promotion Policy states:
Applications for transfer will be considered on the basis of
qualification, reason for request and requirements of the
department involved. Employees with less than satisfactory
work, behavior issues, or disciplinary record, may be refused
transfer on that basis
(Id. at ¶ 10; ECF No. 132-4 at 41,
2008, Plaintiff submitted paperwork with RWJ, advising it
that he had changed his surname to "El Bey" and
that he was declaring his affiliation with the Moorish
Science Temple of America. (Id. at ¶ 11). RWJ
abided by his request and updated its records to reflect this
event, throughout his employment with RWJ, Plaintiff has
demonstrated poor work ethic and has failed to meet RWJ's
performance expectations. Employment Evaluations for the 2011
and 2012 work year reflect RWJ's concerns over Plaintiffs
inability to receive criticism, listen, and be held
accountable. (Id. at ¶ 17; ECF No. 132-4 at
45-51, "2011 Evaluation"; ECF No. 132-4 at 51-56,
"2012 Evaluation"). RWJ's 2012 Evaluation was
particularly critical of Plaintiff s continued inability to
demonstrate honesty and accountability, "[o]ur customers
and other staff have not seen consistency in accountability.
When challenge[d] . . . [Plaintiff] was often combative,
missing opportunity to improve." (2012 Evaluation at 3).
The Evaluation also noted Plaintiffs struggles with
performing his job responsibilities, such as prioritizing
work activities, sterilizing areas, and handling and tending
to medical instruments. (Id. at 3).
his tenure, from 2000 to 2017, Plaintiff received sixteen
"Employee Counseling Notices, " which gave written
or oral warnings regarding Plaintiffs work performance. (ECF
No. 132-4 at 58-89, "Employee Counseling Notices").
Specifically, Plaintiff was cited several times for
incorrectly sterilizing medical instruments, leaving the
instruments covered in blood and, in one instance, bone
matter, and mislabeling instruments for medical procedures.
(Id.). Plaintiff also received three disciplinary
notices for: failing to properly sterilize medical equipment;
mislabeling medical instruments and failing to properly
prepare trays with the required equipment; and tardiness and
being said, in 2012, Plaintiff submitted his first
application for promotion to Supervisor C.S.P., a position
not covered by the CBA. (SUMF at ¶¶ 18-19). The
position was ultimately given to Wayne DeCosta, another RWJ
employee, who had greater seniority than Plaintiff and was
considered more qualified for the role. (Id. at
¶¶ 20-22). At his deposition, Plaintiff conceded
that RWJ's denial of his application was not
discriminatory, explaining, "I didn't really have a
problem with [DeCosta] getting the position because he ...
had seniority over me, which I honored." (ECF No. 132-3
at 45, "Plaintiffs Deposition" at 155:10-13). This
being said, Plaintiff filed a grievance regarding the denial
of his application. (SUMF at ¶ 24).
October 18, 2012, Plaintiff attended a grievance meeting with
his Union Representative, Jill Pitman; also present at the
meeting were Nancy Schoolfield, C.S.P. Department Director,
and Arlene Thompson, Plaintiffs Supervisor. (Id. at
¶ 25). At this meeting it was explained to Plaintiff
that he was not qualified for the position, since he required
additional training. (Id.).
to Plaintiff, around this time he was criticized by
Schoolfield and Thompson for his religious beliefs and
affiliation with the Moorish Temple. Specifically,
Schoolfield allegedly said to Plaintiff, "You people
think you're above the law." (Plaintiffs Deposition
at 78:9-10). Similarly, Thompson allegedly said, "You
think you are above the law We are not in Morocco. If you
want to be free, go back to Morocco..... You Moors are trying
to overthrow the government. ... You are black just like
everyone else." (Id. at 79:21-80:3). However,
Plaintiff never reported these alleged statements with RWJ
Human Resources. (SUMF at ¶ 78). Plaintiff also conceded
that Schoolfield never claimed that his religious beliefs
were the reason why he was not promoted. (Plaintiffs
Deposition at 77:8-19).
October 2014, Plaintiff again applied for a Supervisor
position. (Id. at ¶ 31; ECF No. 132-4 at 128,
"October 2014 Application"). After receiving his
application, RWJ decided to give Plaintiff a "trial run,
" wherein Plaintiff would serve as Acting Supervisor
C.S.P. for two weeks in November, during which his
performance would be assessed. (Id. at ¶ 34).
After completing his trial run, Plaintiff spoke with Roger
Turner, who had replaced Thompson as Plaintiffs Supervisor.
(Id. at ¶¶ 33, 35). Turner explained to
Plaintiff that he needed additional training to address his
interpersonal skills; he also acknowledged that there was
some "political stuff going on at RWJ, mainly that new
staffing decisions were being made. (Id. at ¶
this timeframe, RWJ was going through a change in C.S.P.
Directorship. Then-Acting C.S.P. Director, Katherine
Johnston, would be leaving her position later that year and
would be replaced by Anita Cassell, who was hired on November
14, 2014. (Id. At ¶¶ 33, 36-37). Cassell
considered Plaintiffs Supervisor application, observed his
performance, interviewed his supervisors, and reviewed his
employment file. (Id. at ¶ 39). Based on her
review, Cassell concluded that Plaintiff was not fit for the
Supervisor position, citing, among other things, his prior
performance issues and inability to hold himself accountable.
(Id. at ¶ 40). This sentiment was also shared
by Johnston, who, in a December 4, 2014 email, identified
several issues with Plaintiffs qualifications. Specifically,
Johnston noted that Plaintiff: (1) lacked interpersonal
skills; (2) failed to schedule staffing lunches, causing most
staff to leave at the same time; (3) is often the first to
leave work and leaves his shift early, with no supervisor
present; (4) does not submit accurate shift reports; and (5)
continued to improperly sterilize medical instruments and
prepare medical trays. (ECF No. 132-4 at 135-36,
December 2014, Plaintiff recorded a conversation between him
and Johnston, regarding his Supervisor application. (ECF No.
132-4 at 143-46, "December 2014 Conversation"). In
this conversation, Johnston notified Plaintiff that another
individual had been hired for the Supervisor position.
(Id. at 3:2). When asked why he did not receive the
promotion, Johnston explained, "[y]ou still were not
taking full ownership of the shift and assignment."
(Id. at 3:4-5). She also noted that Plaintiff
continued to exhibit poor work performance. (Id. at
3:7-17). In response, Plaintiff told Johnston that he
intended to file a grievance. (Id. at 3:21-23).
December 9, 2014, Pitman wrote to RWJ, regarding denial of
Plaintiff s application. (ECF No. 132-4 at 148,
"December 2014 Letter"). In this letter, Pitman
claims, "[Plaintiff] told me that he was promised a
promotion by his supervisor. This never came to fruition and
was offered to someone else." (Id.). She also
claimed that "it was agreed that [Plaintiff] would
receive specialized training so he would be eligible for the
next promotion." (Id.). A formal grievance was