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Belfort v. Morgan Properties, LLC

United States District Court, D. New Jersey, Camden Vicinage

June 29, 2018


          Caroline Hope Miller, Esq. Counsel for Plaintiff.

          A. Nicole Stover, Esq., Michael D. O'Mara, Esq., Adriel Jedrek Garcia, Esq. Counsel for Defendant Morgan.

          George James Matz, Esq., Michael J. Revness, Esq. Counsel for Defendant Peek.

          OPINION [Dkt. Nos. 21, 22]


         This matter comes before the Court upon the filing of a motion for summary judgment, [Dkt. No. 21], by Defendant Morgan Properties Payroll Services, Inc. (improperly pleaded as “Morgan Properties, LLC”) (“Morgan”) seeking the dismissal of all claims against it pursuant to Fed.R.Civ.P. 56, and a motion for partial summary judgment, [Dkt. No. 22], by Defendant Jerry Peek (“Peek”, and collectively with Morgan, the “Defendants”) seeking the dismissal of Counts III through VII in Plaintiff's Complaint. For the following reasons, both motions will be GRANTED, in part, and DENIED, in part.

         I. Background[1]

         Plaintiff Kevin Belfort alleges that he was subjected to a hostile work environment and then discriminated against and ultimately terminated either because of his sex or in retaliation for complaining about his mistreatment. Morgan, Plaintiff's former employer, argues that Plaintiff was terminated because of poor performance and unprofessional behavior. A summary of the facts relevant to Morgan and Peek's respective motions for summary judgment is provided below.

         A. Plaintiff's Employment with Morgan

         Morgan is a residential property management company that manages apartment communities throughout the United States, including several communities in New Jersey. (DSMF ¶ 1). On July 2, 2015, Plaintiff began his employment with Morgan as a Maintenance Technician at its Towers of Windsor community in Cherry Hill, New Jersey. (DSMF ¶ 2). Maintenance technicians are responsible for maintaining the grounds and common areas of apartment communities, and perform various tasks including but not limited to painting, repairs, and trash and snow removal. (DSMF ¶ 10). Moreover, maintenance technicians are tasked with “work orders” or “make-readies, ” the processes of completing repairs and maintenance requests from current residents, and doing maintenance on vacant apartments to ensure they are prepared for new tenants, respectively. (DSMF ¶¶ 11-13). Plaintiff was initially tasked with doing “make-readies” but was eventually reassigned to work orders because, as Plaintiff concedes, he did not like that work and was “horrible” at “make-readies” due to his over attention to small details. (DSMF ¶14; Pl.'s Dep. 130:22-132:11).

         The maintenance team on which Plaintiff worked at Towers of Windsor included maintenance technicians Juan Heredia, Jose Martinez, and Christian Hoffman; assistant maintenance supervisor Ismael Muñoz; and maintenance supervisor Jerry Peek, Plaintiff's direct supervisor. (DSMF ¶ 5). Jennifer Allen was the property manager of Towers of Windsor and supervised all employees at that location. (DSMF ¶¶ 6-7). Allen's supervisor was Debbie Quigley, the regional property manager for Plaintiff's region. (DSMF ¶ 8). Quigley reported to, among others, Christine Beechen, the area vice president. The director of human resources covering Plaintiff's region was Krista Reynolds.

         When he began his employment with Morgan, Plaintiff was new to maintenance, and he often relied on the other members of the maintenance team for assistance and advice, leading to tension between he and some of the maintenance team members, who complained that Plaintiff did not try to solve issues himself before seeking assistance. (DSMF ¶¶ 15-16).

         B. Peek's Alleged Harassment of Plaintiff

         According to Plaintiff, Peek began to regularly make offensive comments and inappropriately touch Plaintiff early in Plaintiff's tenure with Morgan. (DSMF ¶¶ 21-22). As Plaintiff tells it, Peek on multiple occasions grabbed Plaintiff's buttocks, sometimes while simultaneously barking at him like a dog; touched his nipples without his permission; repeatedly penetrated Plaintiff's ear with his finger, seemingly simulating a sex act; tripped him; and “bumped” him. (DSMF ¶ 22; Pl.'s Dep. 51:20-52:18, 54:12-19, 54:25-55:12). Plaintiff was not Peek's sole victim. Peek also exhibited some of this behavior towards other members of the maintenance team. (Pl.'s Dep. 58-62). Plaintiff has also accused Peek of, on one occasion, reaching up Plaintiff's shorts, pinching Plaintiff's thigh, and saying “we got a strong one here” and inviting other employees to “feel.” (Pl.'s Dep. 53:5-9). Moreover, Peek also called Plaintiff gay and used some variation of “fag” or “faggot” towards Plaintiff on multiple occasions. (Pl.'s Dep. 55:18-19). On at least one occasion, and possibly as many as ten, Peek made a remark to Plaintiff about a “San Francisco flip-flop, ” which Plaintiff understood as a crude joke about homosexuals. (Pl.'s Dep. 116:1-16).

         Peek has admitted to some of this behavior, including referring to Plaintiff as gay on at least one occasion, putting his fingers in Plaintiff's ear, “spank[ing]” his employees, and referring to “San Francisco flip-flops.” He characterizes his behavior, however, as mere “horseplay.” (Peek Dep. 24:1-29:13).

         Plaintiff made his first report of Peek's offensive behavior on December 21, 2015, and met with Allen and Quigley each of the two following days to discuss his complaints.[2] (DSMF ¶¶ 19-20). Believing that Peek's behavior amounted to mere juvenile “horseplay” and “high school antics, ” Quigley arranged a one on one meeting between Plaintiff and Peek in the hope that the two of them could resolve their differences. (DSMF ¶¶ 24-26). Plaintiff and Peek met on January 4, 2016. Later that day, Plaintiff went back to Allen and made additional allegations against Peek.[3] (DSMF ¶ 30).

         On January 8, 2016, Morgan issued Peek a “last chance” agreement, warning him that if his unprofessional conduct continued he would be terminated. (Reynolds Cert., Ex. F). Also on January 8, 2016, Plaintiff met with Beechan, who instructed him of Morgan's plans with regard to Peek. On January 22, 2016, Beechen sent Plaintiff a letter memorializing the January 8th meeting and informing Plaintiff that if at any point he came to believe he was being retaliated against for making a complaint against Peek, he should immediately report his concerns to management. (Reynolds Cert., Ex. G).

         There is no dispute that after being issued the “last chance” warning, Peek refrained from ever again getting physical with Plaintiff. Plaintiff did, however, report that Peek and other unnamed individuals continued to make “ignorant” and “disrespectful” comments and treat him inappropriately. Specifically, Plaintiff testified that Peek continued to use homophobic slurs toward him frequently and to taunt him by whistling “jingle bells” at him.[4] (Pl.'s Dep. 222-24; 120:18-25; 113:5-15). Plaintiff complained to Allen about this conduct in June, 2016, and in July, 2016, Plaintiff met with Beechan to discuss his ongoing issue with Peek. (DSMF ¶¶ 36-37). In October, 2016, Plaintiff made further allegations to Reynolds and Allen about inappropriate comments being made about residents by Morgan employees, and “looks” he was receiving from Peek whenever new rules were implemented for the maintenance team. Plaintiff refused to provide specifics to Allen or Reynolds when pressed about his co-workers' alleged inappropriate comments concerning the residents, but it does not appear that these specific complaints were about Peek.

         C. Plaintiff's Transfer and Termination

         In the spring and summer of 2016, Morgan received reports from residents that someone from maintenance was telling them that their units were unsafe due to mold and other issues. (Reynolds Cert., Ex. J, K). After investigating these reports, Allen concluded that Plaintiff was behind these issues. Thus, on July 21, 2016, Plaintiff received an “Employee Warning Notice” (“write-up”) for allegedly telling a resident to move out of Towers of Windsor, disparaging Peek to another resident, and refusing to provide Peek with a “daily log form, ” instead telling Peek to “contact [his] lawyer for the paperwork.” (Reynolds Cert., Ex. L). Moreover, during the same time period, Plaintiff's co-workers and supervisors became aware that Plaintiff was recording their conversations. (Pl.'s Dep. 82-85).

         On October 13, 2016, Reynolds issued Plaintiff a letter advising him that due to “various employment issues, ” Plaintiff was being transferred to The Colonials, another Morgan property. (Reynolds Cert., Ex. M). The Colonials is located close to Towers of Windsor, and Plaintiff had the same title, responsibilities, and pay in his new position. (Pl.'s Dep. 165:13-168:7). In his new position, Plaintiff's maintenance supervisor was Peter Desiderio and the property manager was Lorna Martin.

         Morgan was apparently unsatisfied with Plaintiff's performance at The Colonials as well. Plaintiff continued to record conversations despite being asked to stop. (Pl.'s Dep. 92:13-15). On January 10, 2017, Plaintiff received another write-up, this time for poor performance including taking excessive breaks, taking too long on assigned tasks, refusing to complete assigned tasks, and failing to communicate with Desiderio (Reynolds Cert., Ex. N). Moreover, Plaintiff continued to have what Morgan considered inappropriate contact with residents. (Pl.'s Dep. 181-185). Specifically, Plaintiff shared with two female residents comments that Desiderio had allegedly made about them, leading the residents to complain to Morgan. (Id.; Reynolds Cert., Ex. S). Ultimately, on January 27, 2017, Reynolds sent Plaintiff a letter informing him that he was terminated, effective immediately, citing performance deficiencies and inappropriate conversations with residents as the bases of his termination. (Reynolds Cert., Ex. T).

         D. This Suit

         Well before he was terminated, on or about March 11, 2016 Plaintiff filed charges with the EEOC against Defendants. On or about June 24, 2016, the EEOC sent Plaintiff a Right to Sue Letter. On August 26, 2016, Plaintiff filed a seven count Complaint in this Court alleging: (1) gender and sex discrimination against Morgan under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e-2[5]; (2) retaliation against Morgan under Title VII, 42 U.S.C. § 20002-3(a); (3) sex discrimination against Morgan under the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-12(a); (4) retaliation against Morgan under NJLAD, N.J.S.A. 10:5-12(d); (5) aiding and abetting under NJLAD, N.J.S.A. 10:5-12(e); (6) assault and battery against Peek; and (7) intentional infliction of emotional distress. The currently pending motions for summary judgment were filed on November 22, 2017.

         II. Summary Judgment Standard

         Summary judgment shall be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it will “affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if it could lead a “reasonable jury [to] return a verdict for the nonmoving party.” Id.

         When deciding the existence of a genuine dispute of material fact, a court's role is not to weigh the evidence; all reasonable “inferences, doubts, and issues of credibility should be resolved against the moving party.” Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, a mere “scintilla of evidence, ” without more, will not give rise to a genuine dispute for trial. Anderson, 477 U.S. at 252. Further, a court does not have to adopt the version of facts asserted by the nonmoving party if those ...

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