BELFORT v. MORGAN PROPERTIES, LLC et al
Filing
31
OPINION. Signed by Judge Renee Marie Bumb on 6/29/2018. (dmr)
[Dkt. Nos. 21, 22]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KEVIN BELFORT,
Plaintiff,
Civil No. 16-5207(RMB/KMW)
v.
MORGAN PROPERTIES, LLC; and
JERRY PEEK,
OPINION
Defendants.
APPEARANCES:
Caroline Hope Miller, Esq.
DEREK SMITH LAW GROUP, PLLC
1845 Walnut Street, Suite 1600
Philadelphia, PA 19004
Counsel for Plaintiff.
A. Nicole Stover, Esq.
STRADLEY RONON STEVENS & YOUNG, LLP
2600 One Commerce Square
Philadelphia, PA 19103
-andMichael D. O’Mara, Esq.
STRADLEY RONON STEVENS & YOUNG, LLP
Libertyview
457 Haddonfield Road, Suite 100
Cherry Hill, NJ 08002
-andAdriel Jedrek Garcia, Esq.
STRADLEY RONON STEVENS & YOUNG, LLP
2005 Market Street, Suite 2600
Philadelphia, PA 19103
Counsel for Defendant Morgan.
George James Matz, Esq.
Michael J. Revness, Esq.
KURTZ & REVNESS, PC
Three Glenhardie Corporate Center
1265 Drummers Lane, Suite 120
Wayne, PA 19087
Counsel for Defendant Peek.
BUMB, United States District Judge:
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
1
All facts, unless otherwise stated, are undisputed facts taken
from Morgan’s Statement of Material Facts Not in Dispute
(“DSMF”). [Dkt. No. 21–2]. These facts are primarily drawn from
Morgan’s business records; the depositions of Peek, Plaintiff,
Jennifer Allen, and Debbie Quigley; and the transcripts of
recordings Plaintiff surreptitiously compiled while employed by
Morgan. For the purposes of this motion, wherever reasonable,
the evidence is taken in the light most favorable to Plaintiff,
the non-movant, and all reasonable inferences are granted to
Plaintiff. See Scott v. Harris, 550 U.S. 372, 380 (2007);
Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
2
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
3
eventually reassigned to work orders because, as Plaintiff
concedes, he did not like that work and was “horrible” at “makereadies” 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
4
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. 116:116).
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
5
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 ¶¶ 2426). 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
2
Plaintiff did not report all of Peek’s inappropriate behavior,
including the incident where Peek allegedly pinched Plaintiff’s
thigh, during his initial meetings. Plaintiff supplemented his
allegations against Peek at a second meeting on January 4, 2016.
3
The conduct of which Plaintiff complained in this second
meeting with Allen was alleged to have occurred before
Plaintiff’s first meeting with Allen.
6
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
4
One incident between Peek and Plaintiff occurred when Plaintiff
was decorating at Towers of Windsor around Christmas of 2015,
and Peek called Plaintiff gay. (Pl.’s Dep. 76:17-25).
7
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
8
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
9
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. § 200023(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.
5
Although Plaintiff does not formally include counts for sexual
harassment under Title VII or the New Jersey Law Against
Discrimination, based on the factual allegations therein, this
Court will construe his Complaint as having pleaded such claims
along with discrimination under both statutes.
10
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 facts are “utterly discredited by
the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 373, 380 (2007).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)). Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
56(e)).
11
III. Analysis
Morgan seeks summary judgment on each of Plaintiff’s claims
against it. Peek seeks summary judgment on all but Plaintiff’s
battery claim against him. The Court addresses each of the
Defendants’ arguments below.
A. Claims Against Morgan
Plaintiff alleges that Morgan harassed and discriminated
against him because of his sex, and that it retaliated against
him for complaining of his mistreatment. Moreover, Plaintiff
seeks to hold Morgan liable for intentional infliction of
emotional distress.
Discrimination and retaliation claims under both Title VII
and NJLAD are analyzed under the burden shifting framework
initially set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Tourtellotte v. Eli Lilly & Co., 636 F.
App'x 831, 841 (3d Cir. 2016). The familiar McDonnell Douglas
framework requires that Plaintiff first establish a prima facie
case of discrimination or retaliation. If Plaintiff establishes
a prima facie case, the burden then shifts to Defendant to
articulate a legitimate, nonretaliatory or nondiscriminatory
reason for its actions. If Defendant articulates such a reason,
the burden then shifts back to Plaintiff to establish that the
proffered nonretaliatory or nondiscriminatory explanation is
merely a pretext for the discrimination or retaliation. At the
12
summary judgment stage, Plaintiff may meet this burden by
“point[ing] to some evidence, direct or circumstantial, from
which a factfinder could reasonably either (1) disbelieve the
employer's articulated legitimate reasons; or (2) believe that
an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's
action.” Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir.
2006) (quoting Fuentes v. Perskie, 32 F. 3d 759, 764 (3d Cir.
1994)) (internal quotation marks omitted). In other words,
Plaintiff 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, and hence infer that the employer did not act for [the
asserted] nondiscriminatory reasons.” Id. (quoting Fuentes, 32
F.3d at 765) (internal quotation marks omitted).
a. Disparate Treatment and Discriminatory
Discharge
Under Title VII, it is unlawful for an employer “to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's . . . sex.” 42 U.S.C. § 2000e–
2(a)(1). Under the NJLAD, it is unlawful “[f]or an employer,
because of the . . . sex . . . of any individual . . . to
13
discriminate against such individual in compensation or in
terms, conditions or privileges of employment.” N.J.S.A. 10:5–
12(a).
Plaintiff argues that Morgan violated both of these
statutes by subjecting him to disparate treatment and then
terminating him because of his sex. Morgan, however, argues that
it is entitled to summary judgment on Plaintiff’s claims of
discrimination because Plaintiff alleges no discriminatory
animus by any decision-maker and Plaintiff cannot establish that
Morgan’s proffered reason for terminating him—poor performance—
was pretext for discrimination. The Court agrees that Plaintiff
has failed to establish a prima facie case of either disparate
treatment or discriminatory termination on account of his sex.
Moreover, even were he able to establish his prima facie cases,
Plaintiff has not pointed to sufficient evidence of pretext.
As set forth above, claims of sex discrimination under both
Title VII and the NJLAD are evaluated under the McDonnell
Douglas framework. To establish a prima facie case of sex
discrimination under either Title VII or the NJLAD, Plaintiff
must establish that: (1) he is a member of a protected class;
(2) he was qualified for the position in question; (3) he
suffered an adverse employment action 6; and (4) that adverse
6
Not every unwelcome employment decision is actionable. Instead,
“[a]n actionable adverse employment action is ‘a significant
14
employment action gives rise to an inference of unlawful
discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403,
410–11 (3d Cir.1999).
Even accepting Plaintiff’s version of events as true and
granting him every inference, he cannot make out his prima facie
case because he points to no evidence of record that gives rise
to the inference that sex played any role in (1) his work orders
being closed out early or late; (2) his being “singled out” to
complete “daily logs”; (3) his “shunning” at the hands of his
coworkers and those same coworkers’ refusal to provide him
assistance or guidance; (4) the decision to issue Plaintiff
“write-ups”; or (5) his termination.
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.’” Betts v. Summit Oaks Hosp., 687 Fed. Appx. 206, 2017
WL 1506640, at *2 (3d Cir. Apr. 27, 2017) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Put
differently, an adverse employment action must be “serious and
tangible enough to alter an employee's compensation, terms,
conditions, or privileges of employment.” Fiorentini v. William
Penn Sch. Dist., 665 Fed. Appx. 229, 234 (3d Cir. 2016) (quoting
Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)). Plaintiff
argues that he was subjected to several adverse employment
actions. Morgan argues that the only adverse employment action
taken against Plaintiff was his termination. The Court agrees
with Morgan, but even adopting Plaintiff’s position, he has
failed to point to any evidence that gives rise to an inference
that any of the supposedly adverse actions pointed to by
Plaintiff were taken against him on the basis of his sex.
15
Where Plaintiff’s pre-termination complaints of disparate
treatment are concerned, even assuming those actions rise to the
level of “adverse employment actions,” Plaintiff points to
nothing in the record that indicates that he was singled out
because of his sex, or that his sex played any part in any of
these actions. Plaintiff worked on maintenance teams consisting
entirely of men and was directly supervised by men. Plaintiff
does not allege and does not point to any record evidence that
establishes that anyone outside of his protected class received
preferential treatment with regard to the adverse actions
supposedly taken against him—or even that they were treated
differently, or that other members of his protected class were
subjected to discrimination. Moreover, the only actions taken by
individuals outside of Plaintiff’s protected class were the
written warnings issued by Martin and Reynolds. See Dungee v.
Ne. Foods, Inc., 940 F. Supp. 682, 688 n. 3 (D.N.J. 1996)
(compiling cases finding inference of discrimination weakened
where decision maker is a member of plaintiff's protected
class). There is nothing in the record that implies that these
warnings had anything to do with Plaintiff’s sex.
Plaintiff’s termination similarly gives rise to no
inference of discrimination. The decisions to transfer Plaintiff
and to terminate his employment were made by Morgan’s director
of human resources, Krista Reynolds. Plaintiff points to no
16
evidence that Peek, the alleged individual discriminator,
participated in this decision, and the record indicates that no
one from Towers of Windsor played any role in Plaintiff’s
termination, as Plaintiff had been transferred to The Colonials
and was being supervised by Desiderio and Martin, who conveyed
complaints about Plaintiff’s performance to Reynolds. Moreover,
Plaintiff presents no evidence suggesting that his sex was even
considered by Reynolds in reaching the decision to terminate
him, or that Reynolds displayed any animus toward Plaintiff or
men in general. He does not provide evidence that he was
replaced by someone from outside his protected class, nor is
there anything in the record suggesting that employees outside
of his protected class were not terminated despite similar
performance issues.
Even were Plaintiff able to meet his burden and establish a
prima facie case, for largely the same reasons, Plaintiff cannot
establish that Morgan’s legitimate non-discriminatory reasons
for firing him—unprofessional behavior and poor performance—were
a pretext for discrimination. Plaintiff does not dispute that he
recorded his coworkers on multiple occasions without their
permission after he was instructed to cease such recording, told
residents that their units were unsafe without any basis for
doing so, or conveyed to residents comments allegedly made about
them by Morgan employees, causing multiple resident complaints
17
and causing at least one resident to move out of Towers of
Windsor. Moreover, as addressed above, Plaintiff points to
nothing in the record indicating that Reynolds harbored any sexbased animus toward him or that Peek impermissibly affected
Reynolds’ decision. As such, Plaintiff cannot genuinely dispute
Morgan’s legitimate reason for terminating him. Thus,
Plaintiff’s claims of discriminatory discharge and disparate
treatment do not survive summary judgment.
In his opposition, Plaintiff conflates his claims for
disparate treatment, discriminatory discharge, harassment, and
retaliation, interchangeably arguing facts relevant to one claim
as evidence in support of another. Having attempted to parse
through Plaintiff’s arguments, the Court finds that Plaintiff’s
disparate treatment claims amount to an allegation that he was
treated differently than his male co-workers because he is a
male. Based on this record, no reasonable jury could find that
Plaintiff suffered disparate treatment or was terminated because
of his sex.
b. Hostile Work Environment Harassment
Title VII and the NJLAD prohibit hostile work environment
sexual harassment as a form of sex discrimination. Moody v.
Atlantic City Board of Education, 870 F.3d 206 (3d Cir.
2017) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–
66 (1986)); Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 452
18
(N.J. 1993). Plaintiff seeks to hold Morgan responsible for the
allegedly harassing behavior to which he was subjected by Peek.
To establish a hostile work environment claim against an
employer under Title VII, a plaintiff must show that (1) he
suffered intentional discrimination because of a protected
classification; (2) the discrimination was severe or pervasive 7;
(3) it detrimentally affected him; (4) it would have
detrimentally affected a reasonable person of the same protected
class in his position; and (5) there is a basis for vicarious
liability. See Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.
2001); see also Caver v. City of Trenton, 420 F.3d 243, 262 (3d
Cir. 2005); Edmond v. Plainfield Bd. of Educ., 171 F. Supp. 3d
293, 309 (D.N.J. 2016). The elements of a hostile work
7
In determining whether an environment is hostile, “a court must
consider the totality of the circumstances, including ‘the
frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.’” Mandel v. M&Q Packaging Corp.,
706 F.3d 157, 168 (3d Cir. 2013)(quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993)). “Title VII is not intended
as a ‘general civility code,’ and requires that ‘conduct must be
extreme’ to constitute the kind of ‘change in the terms and
conditions of employment’ the statute was intended to target.”
Burgess v. Dollar Tree Stores, Inc., 642 Fed. Appx. 152, 155 (3d
Cir. 2016) (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998)); see also Vance v. Ball State Univ., 133 S. Ct.
2434, 2455 (2013) (Ginsburg, J., dissenting) (“Title VII imposes
no ‘general civility code.’ It does not reach ‘the ordinary
tribulations of the workplace,’ for example, ‘sporadic use of
abusive language’ or generally boorish conduct.”) (internal
citations omitted).
19
environment claim under NJLAD resemble the first four elements
of the Title VII hostile work environment claim. Caver, 420 F.3d
at 262–63.
In sex discrimination hostile work environment claims where
the alleged harasser and the victim of the harassment are of the
same sex, as is the case here, the United States Court of
Appeals for the Third Circuit has found that there are at least
three ways that a plaintiff may establish that the harassment
was because of the plaintiff's sex: 1) where there is evidence
that the harasser sexually desires the victim; 2) where there is
no sexual attraction but where the harasser displays hostility
to the presence of a particular sex in the workplace; or (3)
where the harasser's conduct is motivated by a belief that the
victim does not conform to the stereotypes of his or her gender.
Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 262-63 (3d
Cir. 2001). “Whatever evidentiary route a plaintiff takes, he or
she must ‘always prove that the conduct at issue was not merely
tinged with offensive sexual connotations, but actually
constituted’ discrimination because of” gender or sex. Betz v.
Temple Health Sys., 659 F. App'x 137, 143 (3d Cir. 2016)(quoting
Bibby, 260 F.3d at 264).
Morgan argues that Plaintiff’s sexual harassment claims
must be dismissed because (1) Plaintiff was not treated
differently by Peek than similarly situated employees because of
20
his sex or gender; (2) Peek’s purported misconduct was not
sufficiently severe or pervasive to support a claim for sexual
harassment; and (3) even were the Court to find that Plaintiff
had sufficiently supported his claims for harassment, Morgan
cannot be liable for Peek’s conduct because it has a policy
against unlawful harassment and Plaintiff failed to mitigate his
damages by making a prompt report. See Faragher v. City of Boca
Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998).
Granting all reasonable inferences to Plaintiff, the Court
finds that the evidence of hostile work environment harassment
is such that a reasonable jury could find for Plaintiff. The
court finds that the record establishes legitimate disputes of
fact regarding the severity or pervasiveness of Peek’s conduct.
Plaintiff cites to evidence that Peek nearly constantly mocked
him and touched him without his permission for a period lasting
at least five months. Moreover, Plaintiff has presented
sufficient evidence from which a reasonable jury could find that
such conduct detrimentally affected him and that such conduct
would have detrimentally affected a reasonable person.
Whether Peek’s behavior was directed at Plaintiff because
of his sex is a jury question. The Court finds that none of the
evidence presented in this case satisfies either of the first
two routes to proving same-sex hostile environment
21
discrimination highlighted by Bibby. The Court finds, however,
that Plaintiff has pointed to enough evidence that a reasonable
jury may find that Peek singled him out for particularly harsh
treatment because Peek did not consider him to conform to the
stereotypes of his gender. Morgan argues that Plaintiff cannot
make this showing because there is no evidence that Plaintiff is
gay, he never did anything to make anyone believe that he is
gay, and he never did “any of the stereotypical things that a
gay male may do.” (Def. Br. 14).
Morgan paints with too broad a brush. There are male
stereotypes that have nothing to do with sexual orientation:
things such as “being aggressive, assertive, and noncomplaining,” for instance. See Burnett v. Union R.R. Co., No.
CV 17-101, 2017 WL 2731284, at *4 (W.D. Pa. June 26, 2017).
Plaintiff has pointed to evidence that, among other things, Peek
may have treated him more harshly than his fellow male coworkers because he “shut down” and took Peek’s abuse rather than
responding aggressively or playing along as he was advised, on
at least one occasion, to do. Further, Plaintiff points to one
incident, which Quigley and Peek admit occurred, where Peek
ridiculed Plaintiff because of the way he was decorating, and
Plaintiff presents evidence that in the aftermath of that
incident Peek mocked him on multiple occasions by whistling
“jingle bells” at him and using gay slurs against him. This is
22
enough to demonstrate that Peek singled Plaintiff out because he
did not conform to Peek’s gender stereotypes.
Moreover, although Morgan points to evidence of Peek’s
“similar” treatment of female employees, that behavior was not
the same as that exhibited towards Plaintiff. According to
Plaintiff, he saw Peek “[m]assaging the women in the office,
rubbing their shoulders, rubbing their backs, making sexual
innuendos,” and “grab assing” with them. (Pl.’s Dep. 60:12-23).
There is no evidence that Peek used similar slurs toward the
women that he did with the men, or that he grabbed them in a
similar manner to that alleged by Plaintiff. Although a jury may
find that Peek was abusive to everyone, and had no
discriminatory motive, Plaintiff has done enough to put the
question to a jury.
Morgan argues that, even were the Court to find that
Plaintiff’s hostile work environment claims survive summary
judgment, Morgan cannot be held liable for Peek’s conduct
because it “exercised reasonable care to prevent and correct
promptly any sexually harassing behavior” and Plaintiff
“unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid
harm.” Hitchens v. Montgomery Cty., 278 F. App’x 233, 236 (3d
Cir. 2008) (citing Faragher v. City of Boca Raton, 524 U.S. 775
(1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
23
(1998)). It argues that Plaintiff behaved unreasonably by
waiting until December to report Peek’s conduct, and that it
behaved reasonably by issuing Peek a “last chance agreement.”
There are enough disputed facts in the record to raise several
questions about this contention, i.e., what is reasonable for
someone in Plaintiff’s shoes, whether it was reasonable to issue
Peek a warning as opposed to terminating him, and whether and to
what extent Peek’s behavior persisted after his warning, among
other issues. The Court will not make these determinations.
Accordingly, the hostile work environment claims survive.
c. Retaliation
Title VII prohibits an employer from “discriminat[ing]
against any individual . . . because he has opposed . . . an
unlawful employment practice . . . .”
42 U.S.C. § 2000e–3(a).
Likewise, NJLAD makes it a violation for “any person to take
reprisals against any person because that person has opposed any
practices or acts forbidden under . . . [the NJLAD] or because
that person has filed a complaint, testified or assisted in any
proceeding under . . . [the NJLAD] or to coerce, intimidate,
threaten or interfere with any person in the exercise or
enjoyment of, or on account of that person having aided or
encouraged any other person in the exercise or enjoyment of, any
right granted or protected by” the NJLAD. N.J.S.A. § 10:5-12(d).
Plaintiff alleges that he was retaliated against as a result of
24
his internal complaint in December 2015, his EEOC complaint in
April 2016, and his civil complaint in August 2016.
In order to make a prima facie case of retaliation,
Plaintiff must show: (1) that he engaged in protected employee
activity; (2) that there was an adverse action by the employer
either after or contemporaneous with his protected activity; and
(3) that there is a causal connection between his protected
activity and the employer's adverse action. Marra v. Phila.
Housing Auth., 497 F.3d 286, 300 (3d Cir. 2007). Where
retaliation is concerned, a materially adverse action is an
action that “might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Hanani v.
State of New Jersey Dep’t of Envtl. Prot., 205 F. App’x 71, 80
(3d Cir. 2006).
To establish causation at the prima facie stage,
a plaintiff must introduce evidence about the “scope
and nature of conduct and circumstances that could
support the inference” of a causal connection between
the protected activity and adverse action. At this
stage, “a plaintiff may rely on a ‘broad array of
evidence’ to demonstrate a causal link between [the]
protected activity and the adverse action taken.” For
example, very close temporal proximity between the
adverse action and the protected activity may be
“unusually suggestive” of a causal connection. A
plaintiff can also rely on evidence such as
“intervening antagonism or retaliatory animus,
inconsistencies in the employer’s articulated reasons
for terminating the employee, or any other evidence in
the record sufficient to support the inference of
retaliatory animus.”
25
Young v. City of Phila. Police Dep’t, 651 F. App’x 90, 95–96 (3d
Cir. 2016) (internal citations omitted). Plaintiff has failed to
put forth sufficient evidence of causation, and thus cannot
present a prima facie case of retaliation. Moreover, even were
Plaintiff to make his prima facie showing, he could not
establish pretext.
Plaintiff seems to be proceeding on the theory that in
response to his harassment complaints, Morgan fabricated
performance issues that did not exist and used those fabricated
issues against Plaintiff, ultimately leading to his termination.
Aside from self-serving testimony, however, the only evidence of
causation—or pretext—to which Plaintiff points is the “temporal
proximity” between his complaints of harassment and Morgan’s
supposedly adverse actions against him. A causal connection
between the protected activity and the adverse employment action
can be shown where “the temporal proximity between the protected
activity and the adverse action is unusually suggestive.”
Tinio v. Saint Joseph Reg'l Med. Ctr., 645 F. App'x 173, 176–77
(3d Cir. 2016)(quoting LeBoon v. Lancaster Jewish Cmty. Ctr.
Ass'n, 503 F.3d 217, 232 (3d Cir.2007) (internal quotation marks
omitted)). “Where the temporal proximity is not unusually
suggestive,” however, courts “consider the circumstances as a
whole, including any intervening antagonism by the employer,
inconsistencies in the reasons the employer gives for its
26
adverse action, and any other evidence suggesting that the
employer had a retaliatory animus when taking the adverse
action.” Id. at 177.
As noted above, the protected activities for which
Plaintiff alleges he was retaliated against were his complaint
to Allen in December 2015, his EEOC complaint in April 2016, and
his civil complaint in this matter in August 2016. The
retaliatory acts to which he alleges he was subjected were
write-ups (the first of which was in July 2016), transfer in
October 2016, and termination in January 2017. Even assuming
that write-ups and transfer were adverse actions for the
purposes of a retaliation claim, this Court does not find that
the nearly eight months between Plaintiff’s complaint to Allen
and the beginning of Morgan’s alleged scheme to retaliate
Plaintiff is “unusually suggestive” of retaliatory animus.
Likewise, the Court does not find the nearly five-month period
between Plaintiff’s civil complaint and termination “unduly
suggestive.” Moreover, as discussed above with regard to
Plaintiff’s disparate treatment and discriminatory discharge
claims, Plaintiff cannot genuinely dispute Morgan’s legitimate
reasons for terminating him. Without more, the Court will not
permit Plaintiff to proceed on his retaliation claims. 8
8
To the extent that Plaintiff argues that the actions allegedly
taken against him constituted a retaliatory hostile work
27
d. Aiding and Abetting
Plaintiff alleges a claim of aiding and abetting an NJLAD
violation against Morgan. This claim is not proper. NJLAD
prohibits unlawful employment practices and unlawful
discrimination by employers. N.J.S.A. 10:5-12a. Individual
supervisors are not defined as “employers” under the NJLAD. Tarr
v. Ciasulli, 853 A.2d 921, 928 (N.J. 2004). “Nevertheless, the
NJLAD makes it unlawful ‘[f]or any person, whether an employer
or an employee or not, to aid, abet, incite, compel or coerce
the doing of any of the acts forbidden [under the
LAD],’ N.J.S.A. 10:5–12e, and such conduct may result in
personal liability.” Id. Aiding and abetting liability under the
NJLAD is about holding individual discriminators, who are not
generally personally liable as non-employers, personally liable.
Morgan, as the employer, is the primary defendant under the
environment, this claim also fails. To establish such a claim,
Plaintiff must prove that (1) he suffered intentional
discrimination because of his protected activity; (2) the
discrimination was “severe or pervasive” (3) the discrimination
detrimentally affected him; (4) it would have detrimentally
affected a reasonable person in like circumstances. See
Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017);
Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006). Unlike
Plaintiff’s sex based hostile environment claim, a harassment
claim based on retaliation fails at the first step. There is
nothing in the record that suggests that Peek’s behavior towards
plaintiff became worse, or changed at all, after Plaintiff
complained to Allen, filed his EEOC complaint, or filed his
Complaint in this matter. As such, he cannot establish that Peek
harassed him because of his protected activity.
28
NJLAD. It did not aid and abet its own alleged discriminatory
conduct.
e. Intentional Infliction of Emotional Distress
Plaintiff brings a claim for Intentional Infliction of
Emotional Distress (“IIED”) against both Morgan and Peek. Courts
the District of New Jersey and New Jersey state courts have held
that the NJLAD preempts common law claims that are (1) based on
the same factual predicates and (2) seek the same relief as a
plaintiff’s NJLAD claim. See, e.g., Gaines v. UPS, Inc., No.
2:13–3709(KM)(MCA), 2014 WL 1450113, at *5–7 (D.N.J. Apr. 14,
2014) (collecting cases and dismissing negligence and
intentional infliction of emotional distress claims that were
based on the same operative facts as the NJLAD claim and
therefore preempted); Arevalo v. Brighton Gardens, Sunrise
Senior Living, LLC, No. CV 15-2563 (MAS), 2016 WL 4975199, at *7
(D.N.J. Sept. 16, 2016); Toscano v. Borough of Lavallette, No.
04-4412, 2006 WL 1867197, at *9 (D.N.J. June 30, 2006) (“A
supplementary cause of action is not allowed when the NJLAD
provides a remedy for the wrong”); Quarles v. Lowe's Home Ctr.,
No. 04-5746, 2006 WL 1098050, at *4 (D.N.J. March 31, 2006)
(dismissing plaintiff's claim for intentional infliction of
emotional distress because it was “based on the same allegations
supporting [p]laintiff's NJLAD claim”).
29
Plaintiff’s hostile work environment claim against Morgan
has survived summary judgment. Plaintiff’s Complaint makes it
clear that his IIED claims are based on the same underlying
conduct as his harassment claims. (See Compl. ¶ 54 (“Plaintiff .
. . repeats and realleges each and every allegation made in the
above paragraphs of this complaint.”). Accordingly, Plaintiff’s
IIED claim against Morgan is preempted by the NJLAD and summary
judgment on this issue will be granted.
B. Claims Against Peek
Peek seeks summary judgment on Plaintiff’s (1) NJLAD
discrimination; (2) aiding and abetting; (3) intentional
infliction of emotional distress; and (4) assault claims against
him.
a. Discrimination, Including Hostile Work
Environment
In his opposition to Peek’s motion, Plaintiff “concedes to
Defenses [sic] argument pertaining [sic] individual liability
under NJLAD 10:5-12(A) and thereby withdraws his Count 3 as to
Defendant Jerry Peek, only.” Pl.’s Opp. at 5 n. 1. Because
Plaintiff has conceded this issue and withdrawn his
discrimination claims against Peek, the Court will dismiss those
claims.
b. Aiding and Abetting
30
Peek seeks summary judgment on Plaintiff’s claims against
him for aiding and abetting retaliation and harassment. At the
outset, the Court finds that because it has dismissed
Plaintiff’s retaliation claim against Morgan, aiding and
abetting liability as to that claim cannot exist as to Peek.
See, e.g., Oguejiofo v. Bank of Tokyo Mitsubishi UFJ Ltd., 2017
U.S. App. LEXIS 13857, *10 (3d Cir. July 31, 2017) (quoting
N.J.S.A. 10:5-12(f)); Tourtellotte, 636 F. App’x at 856 (“the
NJLAD does not provide for individual liability for aiding and
abetting if the employer is not found liable.”).
Where Plaintiff’s harassment claim is concerned, Peek has
conceded that, because the Court has denied Morgan’s motion for
summary judgment on harassment—which is largely premised on the
acts of Peek—he is likewise not entitled to summary judgment on
Plaintiff’s aiding and abetting claims against him with regard
to that conduct. Def. Br. at 7 n. 1. Accordingly, this claim
will proceed to trial.
c. Intentional Infliction of Emotional Distress
Peek refers the Court to the arguments raised by Morgan in
support of its motion for summary judgment on intentional
infliction of emotional distress. The Court’s analysis with
regard to Morgan’s motion on this point applies with equal force
to Peek’s argument, and Peek’s motion for summary judgment on
31
intentional infliction of emotional distress will be granted for
the same reasons.
d. Assault
In Count VI of the Complaint, Plaintiff alleges the tort
claims of assault and battery against Peek. Peek seeks summary
judgment as to Plaintiff’s assault claim only.
"In New Jersey, a person is subject to liability for the
common law tort of assault if: (a) he acts intending to cause a
harmful or offensive contact with the person of the other, or an
imminent apprehension of such contact, and (b) the other is
thereby put in such immediate apprehension." Panarello v.
Vineland, 160 F. Supp. 3d 734, 767 (D.N.J. Feb. 8, 2016)
(quoting Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591,
969 A.2d 1097 (2009)). Peek argues that he is entitled to
summary judgment on this claim because Plaintiff cannot
establish either of the required elements. The Court disagrees.
The record in this case is replete with disputed facts regarding
whether, and to what extent, Peek caused “offensive contact”
with Plaintiff. It will be up to a jury to determine whether
Plaintiff’s allegations are credible, and if so whether Peek’s
conduct caused the requisite apprehension by Plaintiff.
Accordingly, summary judgment as to Plaintiff’s assault claim
will be denied.
32
IV.
Conclusion
For the foregoing reasons, both motions will be GRANTED, in
part, and DENIED, in part. Specifically, summary judgment will
be granted in favor of Morgan with respect to (1) disparate
treatment and discriminatory discharge; (2) retaliation; (3)
aiding and abetting; and (4) intentional infliction of emotional
distress. Morgan’s motion for summary judgment will be denied
with respect to Plaintiff’s hostile work environment claims
under the NJLAD and Title VII. Peek will be granted summary
judgment on (1) disparate treatment and discriminatory discharge
and the aiding and abetting thereof; (2) retaliation and the
aiding and abetting thereof; and (3) intentional infliction of
emotional distress, and his motion will be denied with regard to
(1) assault and (2) aiding and abetting harassment.
s/ Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge
DATED: June 29, 2018
33
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