United States District Court, D. New Jersey
HUNTER Pro se Plaintiff.
TIMOTHY R. BIEG MADDEN & MADDEN On behalf of Defendant
and Cross-Defendant Deptford Board of Education and Defendant
POSTERNOCK MATTHEW ROYE LITT PASTERNOCK APELL, P.C. On behalf
of Defendant and Cross-Claimant Walter Berglund.
HILLMAN, DISTRICT JUDGE
an employment discrimination and retaliation action in which
Plaintiff Cedric Hunter claims Defendant Deptford Township
Board of Education (the “BOE”) and two of its
employees, Walter Berglund and Rick Margolese (collectively,
“Defendants”), discriminated against him based on
his race and age, and retaliated against him because he
lodged complaints against them with the Equal Employment
Opportunity Commission (EEOC).
are three motions before the Court: two Motions for Summary
Judgment filed by Defendants (Docket Nos. 125 & 126), and
a “Motion to Suppress Evidence” filed by
Plaintiff (Docket No. 127). For the reasons expressed below,
this Court will deny Plaintiff's Motion to Suppress, and
will grant Defendants' Motions for Summary Judgment.
Court takes its facts from the parties' statements of
material facts not in dispute. The Court will note any factual
disputes where relevant.
unspecified day in January 2012, Plaintiff was hired by the
BOE as an evening custodian to be primarily staffed at Shady
Lane Elementary School. Plaintiff's general duties
included “[k]eep[ing] the building and premises
including sideways, driveways, and play areas clean and safe
at all times[;]” “[p]erform[ing] all proper
cleaning methods to include dusting, sweeping, scrubbing,
mopping, sanitizing, vacuuming, . . .of all areas of
responsibility[;]” and “[p]erform[ing] all proper
cleaning methods to furniture, floors, walls, doors, marker
boards, chalkboards, lavatory fixtures, windows, computer and
televisions monitors, computer keyboards, desks, water
fountains, and building structures.” (Docket No. 125-5
(“BOE SOMF”) at 22, ¶14; BOE SOMF, Ex. C).
times relevant to this action, Defendant Margolese served as
the BOE's Assistant Supervisor of Custodians/Maintenance,
and Defendant Berglund served as the Head Supervisor of
Custodians/Maintenance. Defendants Margolese and Berglund
were directly responsible for supervising Plaintiff's
the course of Plaintiff's employment, Defendants received
more than forty (40) complaints about his custodial work.
After numerous complaints, on January 25, 2013, Plaintiff was
confronted about his deficient performance and placed on the
first of three corrective action plans. Pursuant to the first
corrective action plan, Plaintiff received full retraining
and was reminded of his job duties and the BOE's
expectations of him.
about Plaintiff's performance continued. For example, on
March 22, 2013, a fifth-grade teacher complained that her
classroom was not swept, and that trash was “sitting on
the floor for three days[.]” (BOE SOMF ¶29, Ex.
April 3, 2013, a special education teacher complained that
tables in her classroom were “not cleaned” during
the evening hours, and areas around her classroom appeared
not to have “been swept[.]” (BOE SOMF ¶29).
April 8, 2013, Shady Lane's School Principal, Jackie
Scerbo (“Principal Scerbo”), wrote Defendant
Margolese about Plaintiff's work performance. Principal
Scerbo shared that a walk-though of the building revealed
that the floors had not been cleaned the night before and
that classroom desks were not cleaned. (BOE SOMF ¶29,
1, 2013, staff complained about “awful urine
smell[s]” that were progressively worsening over the
course of several days and could be smelled throughout the
hallways. (BOE SOMF ¶29, Ex. F). On May 2, 2013,
Principal Scerbo contacted Defendant Margolese to report
additional complaints she received about Plaintiff's
the same time, Plaintiff was placed on a second corrective
action plan and again retrained. On May 2, 2013, Plaintiff
acknowledged receipt of the second corrective action plan but
objected to the assessments contained in it.
about May 13, 2013, the BOE issued a written evaluation of
Plaintiff's performance and deemed it to be
“unacceptable to [the BOE's] standard of
cleaning.” (BOE SOMF, Ex. G). Plaintiff was offered the
On January 10, 2013, I was called to Shady Lane to look at
Cedric's area. The two student bathrooms were disgusting
to say the least, and the rooms were not very clean. I was
told, teachers were cleaning desks and other areas of the
room. . . . On January 25, 2013, Cedric was put on a
Corrective Action Plan (CAP). He was re-trained by one of my
trainer custodians and myself. Over the last few months, I
have performed inspections per the plan and have found his
work to be unacceptable to our standard of cleaning. Though
there was some improvement, overall, Cedric's section is
unsatisfactory. During my inspections, I would tell Cedric
how I wanted something done, or would give him advice and
suggestions. My next inspection, I would find the same
(BOE SOMF ¶30). Plaintiff acknowledged receipt of the
written evaluation but objected to its findings.
14, 2013, Principal Scerbo wrote Defendants Margolese and
Berglund to share that Plaintiff missed work the night
before, and as a result, the school building was not cleaned.
additional complaints, on July 1, 2013, Plaintiff was placed
on a six-month probationary period. (BOE SOMF ¶40, Ex.
J). Plaintiff objected to his probationary term as being a
means of harassment. While the record does not make clear
exactly when, around this same time, Plaintiff was
transferred from Shady Lane to another school in the
district, the Central Early Childhood Center
10, 2013, Central's Principal, Maria Geoffrey
(“Principal Geoffrey”), emailed Defendants
Berglund and Margolese complaining about Plaintiff's
performance. Principal Geoffrey explained that Plaintiff was
mopping the halls with dirty water and was not properly
cleaning bathrooms. Principal Geoffrey also described
Plaintiff's failure to properly clean the nurse's
September 5, 2013, Principal Geoffrey emailed Defendants
Berglund and Margolese to share that “the bathrooms are
not getting cleaned well” and that other tasks had been
poorly completed. (BOE SOMF ¶43, Ex. K).
September 10, 2013, Principal Geoffrey complained that urine
stains remained on the nurse's floor for several days,
and that Plaintiff was again “not cleaning his area
properly[.]” (BOE SOMF ¶44, Ex. L). That same day,
supervisors met with Plaintiff about his deficient
performance. During that meeting, Plaintiff requested
additional training, which the BOE ultimately provided.
September 18, 2013, Plaintiff was provided with a document
highlighting some of the complaints against him and outlining
a perceived “lack of effort[.]” (BOE SOMF Ex. N).
Plaintiff acknowledged receipt of this document but claimed
it was the product of workplace retaliation.
September 23, 2013 through November 19, 2013, Defendants
received numerous additional complaints about Plaintiff's
work. (BOE SOMF ¶¶51-53). On November 20, 2013,
Defendant Margolese inspected Plaintiff's work area and
observed numerous deficiencies, including dirty floors and
unkept bathrooms. (BOE SOMF, Ex. Q). Defendant Margolese
shared these findings with Plaintiff by letter dated November
21, 2013, which Plaintiff acknowledged receiving. (BOE SOMF,
December 4, 2013, Defendant reported to the BOE that
“not only is there still no improvement with
[Plaintiff's] cleaning, it has actually
deteriorated.” (BOE SOMF, Ex. S).
unspecified day in January of 2014, Plaintiff received a
two-day suspension for poor performance. Thereafter,
Plaintiff was placed on a third corrective action plan.
about Plaintiff's work continued. On January 16, 2014,
Defendants received a complaint that Plaintiff's section
of the building remained littered with trash and dirty rags,
was not vacuumed properly, and countertops appeared covered
with dirt. (BOE SOMF ¶57).
March 24, 2014, the BOE issued a letter to Plaintiff advising
him of the continued complaints against him and highlighting
his under-performance. The letter noted that Plaintiff had
“shown no signs of improvement” and was
“performing far below the standards” expected.
(BOE SOMF ¶59, Ex. V). Plaintiff acknowledged receipt of
this letter but denied the accusations contained in it.
28, 2014, the BOE advised Plaintiff he was not being offered
a renewed contract for the 2014-2015 school year due to his
“[u]nsatisfactory job performance[.]” (BOE SOMF,
February 10, 2016, Plaintiff filed this matter with the
Court. Plaintiff's Complaint contains four counts: one
under Title VII of the Civil Rights Act of 1964, codified at
42 U.S.C. § 2000e-2(h) (“Title VII”), for
unlawful employment discrimination on the basis of race
(Count I); one under Title VII for retaliation (Count II);
one under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.,
for unlawful age discrimination ...