United States District Court, D. New Jersey, Camden Vicinage
Caroline Hope Miller, Esq. Counsel for Plaintiff.
Nicole Stover, Esq., Michael D. O'Mara, Esq., Adriel
Jedrek Garcia, Esq. Counsel for Defendant Morgan.
James Matz, Esq., Michael J. Revness, Esq. Counsel for
OPINION [Dkt. Nos. 21, 22]
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE
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.
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.
Plaintiff's Employment with 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).
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
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).
Peek's Alleged Harassment of Plaintiff
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).
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).
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. (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. (DSMF ¶ 30).
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).
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. (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.
Plaintiff's Transfer and Termination
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).
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.
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).
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; (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.
Summary Judgment Standard
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.”
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 ...