BENJAMIN v. CITY OF ATLANTIC CITY et al

Filing 58

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/5/2014. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MARK J. BENJAMIN,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 12-3471 (JBS/AMD)

v.
CITY OF ATLANTIC CITY, et al.,

OPINION
Defendants.

APPEARANCES:
Demetrius J. Parrish, Esq.
6024 Ridge Avenue, Suite 116-318
Philadelphia, PA 19128
Attorney for Plaintiff
Catherine A. Tuohy, Esq.
TUOHY & TUOHY, ESQS.
474 Atlantic Avenue
Atlantic City, NJ 08401
-andPatrick J. Wolfe, Esq.
Sharlenn E. Pratt, Esq.
ZARWIN, BAUM, DEVITO, KAPLAN, SCHAER & TODDY, PC
1818 Market Street, 13th Floor
Philadelphia, PA 19103
Attorneys for Defendant City of Atlantic City
Grace K. Flanagan, Esq.
Patrick J. Wolfe, Esq.
Sharlenn E. Pratt, Esq.
ZARWIN, BAUM, DEVITO, KAPLAN, SCHAER & TODDY, PC
1818 Market Street, 13th Floor
Philadelphia PA 19103
Attorneys for Defendant John J. Mooney, III

SIMANDLE, Chief Judge:
I.

Introduction
Plaintiff Mark J. Benjamin, a sergeant in the Atlantic City

Police Department, alleges that he suffered racial
discrimination at work when he was denied a promotion, when he
was demoted to the position of patrolman, and when his internal
complaints were not investigated properly, among other things.
He also alleges retaliation for complaining about
discrimination. He brings this suit against Defendant City of
Atlantic City (“the City”) and Defendant John J. Mooney, III,
the former police chief of the Atlantic City Police Department.
Plaintiff is African-American.
Before the Court are two motions for summary judgment,
filed by the City [Docket Item 41] and Defendant Mooney [Docket
Item 44]. As explained below, even assuming Plaintiff makes a
prima facie showing of discrimination and retaliation, Plaintiff
does not adduce evidence to counter the City’s proffered
nondiscriminatory and non-retaliatory justifications for each
allegedly adverse employment action. Claims against Defendant
Mooney similarly fail because Mooney is not a proper defendant
under Title VII or 42 U.S.C. § 1981, and claims against him
under the New Jersey Law Against Discrimination (“NJLAD”) are
time-barred. The Court will grant both motions for summary
judgment.
2

II.

Background
Plaintiff Mark Benjamin, who is black, began working as a

police officer in the Atlantic City Police Department (“ACPD”)
in 1998. (Statement of Undisputed Material Facts (“SMF”) [Docket
Item 41] ¶ 1.) After a couple of years on patrol, he was
assigned continuously to investigative units, which entitled him
to a pay increase of 3 percent. (SMF ¶ 8.) Plaintiff did not
experience trouble in the police department until 2008.
In November 2008, a newspaper blogger made comments about
Plaintiff, allegedly suggesting that Plaintiff was receiving
favorable treatment with respect to his assignments, which he
did not deserve. (Id. ¶¶ 13-16.) Plaintiff filed an internal
complaint against an unknown police officer, suspecting him or
her of writing the blog post. (Id. ¶ 15; City Ex. F.) Internal
Affairs produced a 10-page report that detailed the discussions
the investigating officer had with Plaintiff and others, and the
measures taken to investigate the claim. (City Ex. F.) The
report states that the Atlantic County Prosecutor’s Office
declined to conduct a criminal investigation, and Internal
Affairs concluded that the internal “investigation failed to
disclose sufficient evidence to clearly prove or disprove the
allegations.” (Id. at 8-9.)
In August or September 2009, Deputy Chief Henry White
discussed with Plaintiff a possible appointment to the rank of
3

Vice Sergeant, which included supervisory duties and a 3 percent
pay increase. (SMF ¶ 33.) White ultimately proposed three names
for the assignment to Chief Mooney, including Plaintiff,
Sergeant Darryl Hall, and one other sergeant. (White dep.
[Docket Item 50-3] at 9:1-11.) White testified that he preferred
that Plaintiff get the assignment, but he did not express that
preference to Mooney. (Id. at 10:12-15.) Mooney selected Hall
for the assignment. (Benjamin dep. [Docket Item 41-2] at 52:47.) Plaintiff testified that he and Hall “had the same
qualifications,” and, although Hall had less investigative
training, Plaintiff agreed that Hall “wasn’t less qualified in
narcotics, per se.” (Id. at 54:7-15, 210:19-23.) Plaintiff
stated he did not have seniority over Hall.1 (Id. at 62:14-18.)
Plaintiff stated that, in terms of seniority, Hall “might have
me by a couple of months.” (Id. at 210:24-211:2.)
In January 2010, Plaintiff filed another complaint with
Internal Affairs after one detective told Plaintiff that two
other officers had called Plaintiff a racist. (SMF ¶¶ 21-23.)
Internal Affairs produced a five-page report which observed
differences of opinions about what happened including denials by

1

When asked whether Plaintiff had seniority over Hall, Plaintiff
stated: “No, not -- at that particular time, no, but as
retribution hereafter, I followed all of this, I’ve been
exempted.” (Id.)
4

the accused officers. (City Ex. G.) Internal Affairs concluded
that the “alleged incident did not occur.” (Id. at 5.)
In April 2010, Plaintiff filed charges with the Equal
Employment Opportunity Commission. On June 10, 2010, as a result
of a budget shortfall, the mayor instituted layoffs and
demotions throughout the ACPD. Even Chief Mooney was demoted.
(Benjamin dep. at 100:13-18.) Plaintiff, who had achieved the
rank of Sergeant, was demoted to patrolman, although he remained
one of the top ranking patrolmen. (SMF ¶ 43; Benjamin dep. at
101:7-11.) Plaintiff testified that six sergeants were demoted;
three were African-American and three were white. (Benjamin dep.
at 104:2-13.) In November 2010, Plaintiff was promoted again to
the rank of Sergeant. (SMF ¶ 11.)
When the demoted or laid-off officers turned in their
weapons or equipment, Sergeant Stacy Falcone allegedly called
Plaintiff a racist. (SMF ¶ 51.) Falcone and Plaintiff exchanged
words. Plaintiff filed an Internal Affairs complaint about
Falcone’s comments. (SMF ¶ 53.) After an internal investigation,
Deputy Police Chief Dooley determined that the complaint could
not be sustained. (City Ex. H.)
After Plaintiff filed this lawsuit on June 8, 2012, a
fellow officer filed an internal complaint against Plaintiff for
his handling of a traffic stop to apprehend a suspect for
driving under the influence. After an investigation, the
5

complaint was not sustained by Internal Affairs. (City Ex. I.)
Plaintiff was similarly exonerated in a separate matter after he
had been accused of making disparaging remarks about another
officer. (City Ex. J.)
III. Standard of Review
A court shall grant summary judgment “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 dispute is “genuine” if, based on the evidence in
the record, a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is “material” if it might affect the outcome
of the suit. Id. Speculation or allegations unsupported by fact
cannot create a genuine issue of fact precluding summary
judgment. Geraci v. Moody-Tottrup Int’l, Inc., 905 F. Supp. 241
247 (W.D. Pa. 1995), aff’d, 82 F.3d 578 (3d Cir. 1996).
The court will view evidence in the light most favorable to
the non-moving party and “all justifiable inferences are to be
drawn in [that party’s] favor.” Hunt v. Cromartie, 526 U.S. 541,
552 (1999). Fed. R. Civ. P. 56 “mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
6

trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
IV.

The City’s Motion for Summary Judgment
The City moves for summary judgment on the Title VII claims

(Counts I, II and III) because nondiscriminatory and nonretaliatory reasons motivated each action taken against
Plaintiff. The City also moves for summary judgment on the claim
brought pursuant to 42 U.S.C. § 1981 (Count IV), because § 1981
provides only rights, not a remedy, and Plaintiff does not bring
claims under § 1983. Finally, the City moves for summary
judgment on the NJLAD claims (Counts V and VI), because the
claims are time-barred and because Plaintiff does not adduce
evidence sufficient to sustain his claim.
A.

Title VII claims

Title VII makes it unlawful for an employer
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or
national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive
or
tend
to
deprive
any
individual
of
employment opportunities or otherwise adversely affect
his
status
as
an
employee,
because
of
such
individual’s race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2(a). The statute also prohibits employers
from retaliating against an employee “because he has opposed any
7

practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. §
2000e-3(a). The statute defines the term “employer” as “a person
engaged in an industry affecting commerce who has fifteen or
more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year, and
any agent of such a person,” with certain exceptions not
relevant here. 42 U.S.C. § 2000e(b).
Where, as here, the plaintiff does not have direct evidence
of racial discrimination (see Pl. Opp’n [Docket Item 50] at 18
(“indirect evidence to the effect that Plaintiff Benjamin was
discriminated against . . . exists”)), the Third Circuit employs
the flexible burden-shifting framework announced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Burton
v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). First, the
plaintiff must establish a prima facie case of racial
discrimination. McDonnell Douglas, 411 U.S. at 802. Although the
prima facie proof required will vary in differing factual
situations, on a claim alleging the failure to promote, the
plaintiff must prove by a preponderance of the evidence that (1)
he is a member of a racial minority, (2) he applied and was
qualified for an available position, (3) he was not selected,
8

despite his qualifications, and (4) the employer instead
selected a non-member of the protected class or continued to
consider candidates who shared the plaintiff’s qualifications.
See id.; Bray v. Marriott Hotels, 110 F.3d 986, 989-90 (3d Cir.
1997); Bennun v. Rutgers State Univ., 941 F.2d 154, 170 (3d Cir.
1991).
Upon a prima facie showing, the burden of production shifts
to the defendant to offer a legitimate, nondiscriminatory
justification for the adverse employment action. Burton, 707
F.3d at 426. Then the burden shifts back to the plaintiff to
“provide evidence from which a factfinder could reasonably infer
that the employer’s proffered justification is merely a pretext
for discrimination.” Id. Plaintiff’s evidence “must demonstrate
such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder
could rationally find them unworthy of credence.” Id. at 427
(quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994))
(internal quotation marks omitted).
1. Discrimination under § 2000e-2(a)(1)-(2) (Counts I
and II)
Plaintiff alleges that the City discriminated against him
“on the basis of race by denying him employment rights and
privileges afforded white police officers, and by disregarding

9

and denying his complaints of racial harassment, all on the
basis of race, which is Black, [and] discriminated against the
Plaintiff in the terms, conditions and privileges of his
employment.” (Compl. ¶ 40.)
The City characterizes these counts as alleging hostile
work environment claims and argues that summary judgment is
appropriate because Plaintiff “cannot prove that he suffered
intentional discrimination because he is a member of a protected
class or that the discrimination was severe or pervasive.” (City
Mot. Br. at 32-33.) The City argues that the “police department
was responsive to all of plaintiff’s complaints,” that a white
officer was assigned to Vice Sergeant instead of Plaintiff
because the white officer had more seniority and was as
qualified as Plaintiff, and that Plaintiff’s demotion from
sergeant to patrolman was part of a blanket “reduction in force
implemented by the mayor in June 2010 due to economic reasons,”
pursuant to N.J.S.A. § 40A:14-143.2 (Id.)

2

The statute provides that the City may, for economic reasons,
decrease the number of members and officers of the
police department or force or their grades or ranks.
In case of demotion from the higher ranks, the
officers or members to be so demoted shall be in the
inverse order of their appointment. When the service
of members or officers is terminated, such termination
shall be in the inverse order of their appointment.
Any member or officer who is demoted or whose service
is terminated by reason of such decrease shall be
placed on a special employment list, and in the case
10

Plaintiff pursues Count I and II by arguing that his claims
“are not a figment of his imagination, but are corroborated by
other employees of superior rank.” (Pl. Opp’n [Docket Item 50]
at 12.) In support, he points to the deposition of Lt. Meyers,
in which Meyers, who is white, arguably shared Plaintiff’s sense
of the lack of opportunity for minorities within the department
for black officers. He testified as follows:
Q: Do you know whether or not Sergeant Benjamin had
complained about the lack of opportunity within the
police department?
A: Yes, sir.
Q: Are you aware of those?
A: Yes.
Q: Were you aware of them?
A: Yes.
Q: How were you aware of them?
A: We’d have conversations all the time. I mean, we’d
work directly together eight hours a day, three to
five days a week.
Q: Did you agree with him?
A: I made the same complaints myself.
(Meyers dep. [Docket Item 50-1, Ex. A] at 13:4-19.) The City
disputes the meaning of Meyers’s ambiguous testimony. According
to the City, “Lt. Meyers also felt that he (a white male) made
the same complaints about the lack of opportunity within the
police department. Lt. Meyers did not testify that he believed

of subsequent promotions, a person so demoted shall be
reinstated to his original rank and in the case of
termination of service and new appointment, prior
consideration shall be given to the persons on said
special employment list.
N.J.S.A. § 40A:14-143.
11

there was a lack of opportunity for blacks within the police
department contrary to plaintiff’s representation.” (City Reply
[Docket Item 56] at 2.)
The only other evidence Plaintiff cites in support of
Counts I and II is deposition testimony by Captain Gregory
Anderson, who, Plaintiff maintains, “corroborated the
Plaintiff’s claims of race discrimination . . . .” (Pl. Opp’n at
12.) Plaintiff points to testimony in which Anderson stated that
he and Plaintiff discussed “what we perceived as, you know
disparate treatment,” and “a feeling that, you know, you’re not
being treated fairly and others are being treated better,
basically” in terms of assignments and opportunities. (Anderson
Dep. [Docket Item 50-2, Ex. B] at 16:4-17:2.) Anderson testified
that after he was promoted to the position of lieutenant, he met
with Chief Mooney and Deputy Chief Nolan and explained he did
not think it was fair that an assignment that carried a threepercent pay increase was taken away from him after he was
promoted to lieutenant; the rank of lieutenant was newly created
and the practice of eliminating special assignments was not
officially “stipulated” within the department. (Id. at 17:1419:8.) Anderson said that he accepted the promotion knowing that
it might result in lower pay, because there was “an absence . .
. of minorities in the upper ranks,” and he said he that he
believed, at the time, he was the only person promoted who had a
12

“three percent assignment” taken away. (Id. at 19:5-19.)
Reacting to Anderson’s explanation of why he took the promotion,
Nolan reportedly “raised his voice and started yelling at me
like don’t even go there, like that.” (Id. at 19:19-20:2.)
Plaintiff also cites testimony from Anderson in which he
stated that he discussed with Plaintiff “some incidents”
Plaintiff had experienced, “the lack of representation in
certain units,” and how “sometimes the disciplinary process
seemed to be harsher, you know, for minorities than others. And
generally speaking, just the working conditions. The perks that
others had that a lot of minorities didn’t.” (Id. at 21:2222:8.) Anderson also testified that he and Plaintiff went to the
mayor’s office and discussed with a representative the
“[g]eneral conditions in the police department” and “[t]hings we
had, you know, seen and heard about, you know, things that have
happened to some of us.” (Id. at 22:9-23:8.)
Without other citations to the record, Plaintiff argues
that “there is viable evidence to support Plaintiff Benjamin’s
Title VII causes of action . . . , and they remain viable. The
Defendant has not shown that the issue regarding these counts
are so [c]lear and free from doubt as to entitle it to a grant
of summary judgment in its favor.” (Pl. Opp’n at 13.)
The Court pauses to clarify a preliminary matter: Plaintiff
need not allege a hostile work environment to state a claim
13

under Title VII. The statute prohibits an employer from refusing
to hire or discharging or otherwise discriminating against an
individual because of his race. 42 U.S.C. § 2000e-2(a)(1). A
single, discrete instance of racial discrimination could provide
the basis for a successful Title VII claim. Therefore, the
City’s argument that any alleged discrimination was not so
severe or pervasive as to constitute a hostile work environment
is not dispositive of Plaintiff’s claims.
Plaintiff does not attempt to explain what evidence in the
record supports a prima facie case of racial discrimination, nor
does Plaintiff evince an awareness of the burden-shifting
framework that governs his Title VII claims. However, the record
clearly supports a prima facie case of racial discrimination.
Plaintiff meets his initial burden by demonstrating that he was
a member of a racial minority, that he was demoted despite his
qualifications for the position, and alleging that this was the
result of racial discrimination. He also meets his initial
burden by demonstrating that was denied a promotion and that his
municipal employer instead hired a white colleague with similar
qualifications. The Court will assume that he also makes a prima
facie showing of race discrimination by demonstrating he made
several complaints of discrimination and arguing the complaints
were ignored.

14

In response, the City has met its burden of production by
offering nondiscriminatory reasons for all of the allegedly
discriminatory conduct. The City proffers evidence that
Plaintiff was demoted as part of a large-scale reduction in
force that affected individuals regardless of race. (Benjamin
dep. [City Ex. B] at 100:13-101:12) (describing how layoffs and
demotions followed a budget shortfall and how more senior
employees would displace lower ranking employees); id. at 104:613 (stating that three of the demoted sergeants were AfricanAmerican and three were white).) Plaintiff later was promoted
back to the rank of sergeant, the title he currently holds. (See
Pl. Opp’n at 1 (“Plaintiff is currently a Sergeant of Police in
the Atlantic City Police Department.”).) The City also adduces
evidence that Plaintiff was not promoted to Vice Sergeant
because the man selected for the position was as qualified as
Plaintiff and had more seniority, and because Deputy Chief White
did not expressly indicate a preference for Plaintiff over the
other two names advanced for consideration. (See White dep.
[City Ex. C] at 9:5-11, 10:8-15 (testifying that White advanced
three names to Mooney, including the eventual choice for Vice
Sergeant, and did not tell Mooney that White preferred
Plaintiff); Benjamin dep. at 210:24-211:5 (agreeing that
Sergeant Hall was qualified to be Vice Sergeant and that “he
might have me by a couple of months” in seniority).) Finally,
15

the City has submitted, under seal, Internal Affairs
investigative reports responding to Plaintiff’s internal
complaints, countering Plaintiff’s claim that the complaints
were ignored; the record indisputably shows the complaints were
not ignored and that Internal Affairs undertook meaningful
investigations.
Plaintiff has the burden of showing that a reasonable jury
could infer that the City’s proffered justification is “merely a
pretext for discrimination,” Burton, 707 F.3d at 426, and
Plaintiff has not met this burden. Plaintiff must show “such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could rationally
find them unworthy of credence.” Id. at 427. However, Plaintiff
points only to testimony by two fellow officers who describe a
vague perception or awareness of a general lack of opportunity
for black officers without discussing the events underlying this
lawsuit. Plaintiff does not adduce evidence undermining
Plaintiff’s own testimony that Sergeant Hall “might have me by a
couple of months” in seniority or that he was qualified for the
job; that Plaintiff’s demotion was part of a reduction in force
determined by seniority that affected police of various ranks
and races; or that the department did investigate Plaintiff’s
internal complaints.
16

Nonspecific testimony about perceived unfairness does not
support a reasonable inference that discriminatory animus caused
Plaintiff’s specific adverse employment actions. The undetailed
suppositions of Plaintiff and fellow officers cannot carry
Plaintiff’s burden to show that the proffered nondiscriminatory
justifications are pretextual or unworthy of credence.3 See
Geraci, 905 F. Supp. at 247-48 (“speculation unsupported by fact
cannot create a genuine issue of fact precluding summary
judgment”); Raniero v. Antun, 943 F. Supp. 413, 423 (D.N.J.
1996) (holding that the plaintiff’s “opinion he was
discriminated against is insufficient to defeat this summary
judgment motion”); cf. Henson v. U.S. Foodservice, No. 11-1809,
2013 WL 6080359, at * (D.N.J. Nov. 19, 2013), appeal docketed,
No. 13-4711 (3d Cir. Dec. 18, 2013) (stating that “[p]erception
like speculation and suspicion cannot support a cause of
3

Plaintiff requests that the Court disregard testimony of all
“interested witnesses,” citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150-51 (2000). (Pl. Opp’n at 11.)
However, the Third Circuit has instructed the district court to
“believe uncontradicted testimony unless it is inherently
implausible even if the testimony is that of an interested
witness.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,
272 (3d Cir. 2007). The court added: “We cannot believe that the
law precludes a party from presenting his own testimony on a
summary judgment motion . . . .” Id. at 271. In the wake of
Lauren W., other district courts in this Circuit have refused to
read Reeves, which concerned credibility determinations in the
context of Fed. R. Civ. P. 50, as Plaintiff urges here. See
Gazdick v. Solis, No. 10-1062, 2013 WL 1909576, at *9-*10 (M.D.
Pa. May 8, 2013); Turner v. Luzerne Cnty., No. 10-814, 2013 WL
791450, at *8 (M.D. Pa. Mar. 4, 2013); Phinizy v. Pharmacare,
569 F. Supp. 2d 512, 517-18 (W.D. Pa. 2008).
17

action,” in the context of an NJLAD hostile work environment
claim). Even if a factfinder were to accept the testimony of
Anderson and Meyers as true -- that there was a lack of
opportunity for black officers in the ACPD and that the
witnesses observed some unspecified incidents of discrimination
-- those general facts do not compel the conclusion that
Plaintiff suffered racial discrimination when he was demoted,
when he was not promoted to the position of Vice Sergeant, and
when he made internal complaints about racism, given the City’s
unchallenged justifications for these decisions. Without more,
Plaintiff has not met his burden under McDonnell Douglas.
Because Plaintiff has not created a genuine issue of fact
for trial, summary judgment will be entered for the City.
2. Retaliation under § 2000c-3(a) (Count III)
To make a prima facie case of retaliation under Title VII,
the “plaintiff must show that (1) she engaged in a protected
activity under Title VII; (2) the employer took an adverse
action against her; and (3) there was a causal connection
between the employee’s participation in the protected activity
and the adverse employment action.” Wilkerson v. New Media Tech.
Charter Sch. Inc., 522 F.3d 315, 320 (3d Cir. 2008). “Causation
may be proven by ‘circumstantial evidence sufficient to raise
the inference that [the] protected activity was the likely
reason for the adverse action.’” Grazioli v. Genuine Parts Co.,
18

409 F. Supp. 2d 569, 582 (D.N.J. 2005) (quoting Kachmar v.
SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)). The
Third Circuit applies the McDonnell Douglas framework to
retaliation claims under Title VII where the evidence of
discrimination is circumstantial. McKenna v. City of
Philadelphia, 649 F.3d 171, 178 n.7 (3d Cir. 2011); see also
Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005) (citing
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278-79 (3d
Cir. 2000), for this proposition).
In the Complaint, Plaintiff claims that Chief Mooney and
the City “discriminated against the Plaintiff because he opposed
and complained about practices made unlawful under 42 U.S.C. §
2000c-1.” (Compl. ¶ 48.) Among the alleged retaliatory acts are
the demotion of Plaintiff (id. ¶ 35) and denial of “customary
pay increases on the basis of his race” (id. ¶ 34).
The City moves for summary judgment on the retaliation
claim because, as argued with respect to Counts I and II, the
demotion was part of a widespread reduction in force as a result
of a budgetary shortfall. (City Mot. Br. at 34.) Plaintiff
responds:
With respect to Count III, Retaliation under Title
VII, Deputy Chief White recommended Plaintiff Benjamin
for the position of supervisor in the special
investigation section because his work product while
he was in the vice unit was excellent, but Defendant
Mooney denied it. (White Dep, 7/8/2013, P. 7, Line 16
- P. 8, Line 24). Captain Anderson believed that
19

retaliation may have played a part in the way
Plaintiff Benjamin was treated. (Anderson Dep., P. 26,
Line 3.)
(Pl. Opp’n at 13.)
Plaintiff points to no evidence in support of a retaliation
claim based on a demotion or denial of routine pay increases.
Rather, Plaintiff focuses on the denial of assignment as Vice
Sergeant. Plaintiff cites, again, the deposition testimony of
Deputy Chief White, who stated that he advanced Plaintiff’s name
for the Vice Sergeant position, but Plaintiff does not cite a
later portion of White’s testimony in which he stated he
advanced two other names but did not tell Chief Mooney that he
preferred Plaintiff for the job. (White dep. [Docket Item 50-3]
at 9:5-8, 10:8-15.) The cited portion of Captain Anderson’s
testimony, with surrounding context, reads as follows:
Q. Did Mr. Benjamin ever say to you that he felt that
because of his complaining about police conduct with
the department that he was being singled out or
retaliated against?
A. Yes, he, you know, made that clear that he believed
that, you know, this was the case.
Q. Did you believe that fact to be true?
A. I believed it could have been part of it, yes.
Q. Do you believe that Chief Mooney had anything to do
with it?
A. It’s possible. I don’t have any facts, but he was - I know the Chief during some of these things, and
the Chief is the Chief, and basically determines how
things are run and how the assignments go.
(Anderson dep. [Docket Item 50-2] at 25:16-26:10.)

20

Assuming that Plaintiff has established a prima facie case
of retaliation, and to the extent Plaintiff’s retaliation claim
is based on the denial of assignment as Vice Sergeant, the claim
must fail because Plaintiff has not undermined the City’s
proffered justification that Mr. Hall was selected for Vice
Sergeant because he had more seniority. Plaintiff’s and Captain
Anderson’s unsupported beliefs that retaliation “possibl[y]”
played some “part” in Hall’s assignment as Vice Sergeant does
not seriously undermine the City’s explanation of the assignment
and cannot provide a basis for a reasonable factfinder to infer
that retaliation was the likely cause of Hall’s selection.
Plaintiff must provide more to cast doubt on the City’s
nondiscriminatory explanation than unsupported speculation by
Plaintiff and his colleague.
To the extent Plaintiff’s retaliation claim is based on
Plaintiff’s demotion, the claim similarly fails because
Plaintiff does not undermine evidence of a widespread reduction
in force that affected individuals regardless of race, as
explained above. The parties do not point to evidence in their
briefs that concerns Plaintiff’s failure to receive pay
increases, and the Court will not consider this further as part
of Plaintiff’s claim for retaliation.
Because Plaintiff has not carried his burden, the Court
will enter summary judgment for the City on Count III.
21

B.

Section 1981 claim

The City seeks summary judgment on the § 1981 claim,
arguing that § 1983 is the exclusive remedy for rights created
under § 1981. The Third Circuit has held that “Congress, in
promulgating § 1983 over a century ago, established that section
as the exclusive remedy for violations of § 1981 by state
actors. Nothing in subsequent history, including amendments to
the 1991 Act, changed that remedial scheme.” McGovern v. City of
Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009). In other words,
“while § 1981 creates rights, § 1983 provides the [exclusive]
remedy to enforce those rights against state actors.” Id. at 116
(emphasis in original). Lower courts in this Circuit, and
nonprecedential opinions from the Third Circuit, continue to
follow McGovern on this point. See, e.g., Alers v. City of
Philadelphia, 919 F. Supp. 2d 528, 556-57 (E.D. Pa. 2013);
Brodie v. Gloucester Twp., No. 11-1914, 2012 WL 295291, at *5
(D.N.J. Feb. 1, 2012); Brown v. SEPTA, No. 13-2467, 2013 WL
4804381, at *4 (3d Cir. Sept. 10, 2013).
Plaintiff argues that McGovern was wrongly decided, and
maintains that, in direct contradiction of McGovern, the 1991
amendments to § 1981 created a remedy independent of § 1983.4

4

In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989), the
U.S. Supreme Court held that § 1983 “provides the exclusive
federal damages remedy for the violation of the rights
guaranteed by § 1981 when the claim is pressed against a state
22

(Pl. Opp’n [Docket Item 50] at 15.) It should not be necessary
to state that this Court must follow binding precedent from the
Third Circuit. Vujosevic v. Rafferty, 844 F.2d 1023, 1030 n.4
(3d Cir. 1988) (“It is, of course, patent that a district court
does not have the discretion to disregard controlling
precedent”). Because McGovern controls, and because Plaintiff is
clear that “[n]one of the six counts of the Plaintiff’s
Complaint is brought under § 1983,” (Pl. Opp’n at 12), the Court
will enter summary judgment in favor of the City.
C.

NJLAD claims

The New Jersey Law Against Discrimination provides in
relevant part that it is “an unlawful employment practice” or
“an unlawful discrimination” for “an employer, because of the
race, creed, [or] color, . . . of any individual . . . to
discriminate against such individual in compensation or in
terms, conditions or privileges of employment . . . .” N.J.S.A.
§ 10:5-12(a). It is also illegal for “any person to take
reprisals against any person because that person has opposed any
practices or acts forbidden under this act or because that
person has filed a complaint, testified or assisted in any
proceeding under this act . . . .” N.J.S.A. § 10:5-12(d). All
NJLAD claims are evaluated using the McDonnell Douglas burdenactor.” Jett, 491 U.S. at 735. McGovern held that the 1991
amendments did not disturb the Jett decision. McGovern, 554 F.3d
at 121.
23

shifting mechanism. Battaglia v. United Parcel Serv., Inc., 214
N.J. 518, 546 (2013).
The City again construes Plaintiff’s Complaint as alleging
hostile work environment claims (City Mot. Br. at 40), and
Plaintiff rejects this characterization. (Pl. Opp’n at 17.) The
City argues that the state claims fail as a matter of law (City
Mot. Br. at 40-44), and the City adds that NJLAD claims are
barred by a two-year statute of limitations, citing Montells v.
Haynes, 133 N.J. 282, 292 (1993). (City Mot. Br. at 39.)
For the same reasons Plaintiff’s claims fail under
McDonnell Douglas and Title VII, as explained above, the NJLAD
claims fail. In addition, the City is correct that NJLAD claims
are governed by a two-year statute of limitations. Roa v. Roa,
200 N.J. 555, 566 (2010). Therefore, most of the discrete
adverse employment actions alleged in the Complaint cannot form
the basis for a timely NJLAD claim. Only Plaintiff’s demotion on
June 11, 2010, could provide the basis for a timely claim under
the NJLAD, but, as discussed above, Plaintiff has not adduced
sufficient evidence for a reasonable factfinder to infer that
that reduction in force was pretextual or likely the result of
retaliation.
Therefore, the Court will enter summary judgment on
Plaintiff’s NJLAD claims.

24

D.

Conclusion

For the reasons explained above, the Court will enter
summary judgment in favor of the City on all of Plaintiff’s
claims.
V.

Defendant Mooney’s Motion for Summary Judgment
Defendant Mooney argues that he is entitled to summary

judgment on all counts because he is not a proper party under
either Title VII or § 1981 and because NJLAD claims are barred
by the statute of limitations.
A.

Title VII liability for individuals

Defendant Mooney argues that, according to Third Circuit
law, individuals cannot be liable under Title VII. (Mooney Mot.
Br. [Docket Item 44] at 13-15.) Indeed, the Third Circuit has
held that “Congress did not intend to hold individual employees
liable under Title VII.” Sheridan v. E.I. Dupont de Nemours &
Co., 100 F.3d 1061, 1077 (3d Cir. 1996).5
5

This Court recently considered at length the issue of
individual liability under Title VII. Gretzula v. Camden Cnty.
Technical Schs. Bd. of Educ., --- F. Supp. 2d ---, 2013 WL
4430824, at *4 (D.N.J. Aug. 14, 2013). The Court began with the
observation that “Third Circuit jurisprudence is clear that
Title VII does not subject individual supervisory employees to
liability . . . .” Id. (citing Sheridan, 100 F.3d at 1078, among
others). After noting conflicting precedent on Title VII claims
against individuals in their official capacities, the Court held
that “Title VII provides for liability against employers, not
supervisors.” Id. at *5-*6. The Court dismissed Title VII claims
against a superintendent of the school board, who had supervised
the plaintiff-director of special education, stating that
“Plaintiff cannot bring a Title VII claim against [his
supervisor] in his official capacity.” Id. at *1, *5-*6. The
25

Plaintiff acknowledges the holding in Sheridan, but argues
that “the Third Circuit decision was improperly decided and,
until such time as the U.S. Supreme Court decides the issue,
Defendant Mooney is an agent of Defendant Atlantic City Police
Department and, therefore, an employer capable of being sued.”
(Pl. Opp’n [Docket Item 45] at 11.6) Plaintiff unpersuasively
argues that this case is distinguishable from Sheridan because,
in that case, the defendant was the plaintiff’s immediate
supervisor, whereas here, Defendant Mooney has a “Senior
Supervisory” position and is not the immediate supervisor of
Plaintiff. (Pl. Opp’n at 12.) Plaintiff does not explain the
materiality of such a distinction, and the Court finds no reason
to depart from Sheridan and its progeny, which hold that
individuals cannot be liable under Title VII. The Court will
enter summary judgment for Defendant Mooney on Counts I, II, and
III.

Court further observed: “Naming a supervisor as a defendant in
his official capacity is redundant especially when, as in this
case, the employer is named as a Defendant.” Id., at *6.
The analysis in Gretzula applies in full force to this
case, where Plaintiff likewise alleges Title VII claims against
an individual supervisory employee and named the municipal
employer as a defendant.
6

All references to Plaintiff’s opposition brief in Section V
refer to Docket Item 45.
26

B. Section 1981
Defendant Mooney, like the City, seeks summary judgment on
Count IV, because § 1981 provides no private right of action
against state actors. (Mooney Mot. Br. at 15-16.) Again,
Plaintiff offers no persuasive reason to disregard the
controlling precedent of McGovern, discussed supra Part IV.B.
Rather, Plaintiff argues that § 1981 does provide a remedy
against state actors because plaintiffs can recover attorneys’
fees and compensatory damages for § 1981 actions against state
actors. (Pl. Opp’n at 16.) This fact provides no basis for
straying from the holding in McGovern that § 1983 is the
exclusive remedy for § 1981 claims against state actors.7 Because
Plaintiff is adamant that he “does not allege that any of his
claims arise under 42 U.S.C. § 1983,” (see Pl. Opp’n at 17), and
because § 1981 does not create a private right of action against
state actors, see McGovern, 554 F.3d at 121, the Court will
enter summary judgment for Defendant Mooney on Count IV.

7

See, e.g., Allen v. Sweeney, No. 11-5602, 2012 WL 5897584, at
*6 (E.D. Pa. Nov. 20, 2012) (“freestanding § 1981 claims cannot
be pursued against state actors”); A v. Gloucester Twp., No. 104062, 2011 WL 2973644, at *4 (D.N.J. July 21, 2011) (dismissing
a § 1981 claim because “§ 1983 constitutes the exclusive federal
remedy for violation of rights guaranteed in § 1981 by state
governmental units”); Hill v. Se. Pa. Transp. Auth., No. 095463, 2010 WL 3490025, at *2 (E.D. Pa. Sept. 1, 2010) (same).
27

C. NJLAD claims
Defendant Mooney seeks summary judgment on the remaining
NJLAD claims because the claims are time-barred. (Mooney Mot.
Br. at 23.) Mooney argues that a two-year statute of limitations
applies to NJLAD claims, citing Montells, 133 N.J. at 292, among
others, and, because it is undisputed that Mooney left the
police department more than two years before Plaintiff filed his
Complaint, the NJLAD claims are time-barred. (See Mooney Ex. C
at 7:13-15.)
Plaintiff argues that the statute of limitations is four
years, not two, because New Jersey courts have “adopted the
federal framework for determining when an NJLAD claim accrues,”
and a four-year statute of limitations applies to § 1981 claims.
(Pl. Opp’n at 21.) Plaintiff misapprehends the relevant law. New
Jersey courts look to federal law to determine whether an act of
discrimination or retaliation is “discrete” or “continuous,”
which affects when the limitations clock begins to run, see Roa,
200 N.J. at 566-67, but New Jersey courts do not borrow
limitations periods from federal statutes for NJLAD claims.
Indeed, the New Jersey Supreme Court has stated unequivocally
that “[t]he statute of limitations for LAD claims is two years.”
Id. at 566.
Plaintiff does not allege that Defendant Mooney
discriminated or retaliated against him at the workplace after
28

Mooney left the police department on May 27, 2010. Because
Plaintiff did not file this suit until June 8, 2012, all claims
against Defendant Mooney under the NJLAD are time-barred.
Summary judgment will be entered in favor of Defendant Mooney on
Counts V and VI.
D. Conclusion
For the reasons explained above, the Court will enter
summary judgment in favor of Defendant Mooney on all counts.
VI.

Conclusion
The Court will grant both motions for summary judgment. An

accompanying Order will be entered.

March 5, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

29