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El Bey v. Robert Wood Johnson University Hospital

United States District Court, D. New Jersey

June 11, 2018



          PETER G. SHERIDAN, U.S.D.J.

         This 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).[1] 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.


         On July 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").

         As an 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, "Promotion Policy").

         In 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 change. (Id.).

         In any 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).

         During 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 absenteeism. (Id.).

         This 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).

         On 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.).

         According 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).

         In 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 ¶ 35).

         During 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, "Johnston Email").

         In 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).

         On 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 filed ...

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