NACER v. CAPUTO
Filing
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OPINION. Signed by Judge Dennis M. Cavanaugh on 11/30/11. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DR. MAXIMO GOMEZ NACER,
Plaintiff,
v.
JERRY CAPUTO, ASSISTANT
SUPERINTENDENT OF HUMAN
RESOURCES, UCBOE, UNION CITY,
NJ,
Defendant.
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Hon. Dennis M. Cavanaugh
OPINION
Civil Action 2:10-cv-04494 (DMC)(JAD)
DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon motion by Defendant Jerry Caputo (“Defendant”)
for Summary Judgment pursuant to Fed. R. Civ. P.56(c). Pursuant to Fed. R. Civ. P. 78, no oral
argument was heard. After carefully considering the submissions of the parties, and based upon the
following, it is the finding of this Court that Defendant’s motion for Summary Judgment is granted.
I.
BACKGROUND1
In or about March 2008, Plaintiff Dr. Maximo Gomez Nacer (“Plaintiff”) was hired as a
substitute teacher by the Union City Board of Education (the “Board”). As a substitute teacher,
Plaintiff was an at-will employee. Plaintiff did not enter into an individual employment contract
with the Board and was paid on a per diem basis. As such, Plaintiff did not have a guarantee for
1
These facts are derived from the parties’ respective submissions.
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consistent employment and only had the opportunity to work on an as-needed basis.
At the time that Plaintiff was hired, Defendant Jerry Caputo (“Defendant”) was employed
by the Board as the Assistant Superintendent of Human Resources. As Assistant Superintendent,
Defendant was in charge of planning and directing a program for the selection and assignment of
teachers and personnel, as well as assisting the Superintendent in preparing recommendations for
all employee assignments, transfers, dismissals and promotions.
In or around the time that Plaintiff was hired, the Board of Education had a shortage of full
time certified high school science teachers. Consequently, Plaintiff was assigned as a long term
substitute at Emerson High School from March 2008 to June 2009. Plaintiff’s position as a long
term substitute concluded in September 2009 when the Union City Board of Education merged their
two high schools into one, and converted Emerson High School into a middle school. Plaintiff
thereafter continued his employment with the Board on an as-needed basis.
In order to search for and accept available substitute teaching assignments, Plaintiff was
required to utilize the Automated Educational Substitute Operator (“AESOP”), an online assignment
program utilized by the board. Plaintiff utilized the AESOP service to receive all subsequent
substitute teaching assignments.
During his time as a substitute, two requests were made by two separate school
administrators that Plaintiff be removed from their respective school’s substitute list. The second
request was received on December 15, 2009, and requested that Plaintiff be removed because he was
“not effective.” The following day, on December 16, 2009, Plaintiff was removed from the Board
of Education’s substitute list. On December 18, 2009, Plaintiff drafted an email to Maria Cires, an
administrative assistant in the Board of Education’s Human Resources Department, to advise that
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his AESOP password was no longer recognized on the AESOP system.2
On December 21, 2009, Plaintiff signed an Equal Employment Opportunity Commission
(“EEOC”) Charge of Discrimination, which named the Union City Board of Education and alleged
“sex” and “retaliation” discrimination.3 Plaintiff did not specifically name Defendant Caputo in his
charge. On December 31, 2009 the EEOC sent the Board of Education a “Notification of Charge
of Discrimination” regarding Plaintiff’s claim and advised the Board that no action was required.
The EEOC subsequently issued Plaintiff a Dismissal and Right to Sue Letter on March 16, 2010.
Plaintiff did not receive a copy of Plaintiff’s EEOC Charge until after the commencement of the
instant litigation.
Plaintiff filed the instant lawsuit on July 16, 2010 in the Superior Court of New Jersey, Law
Division, Hudson County. Plaintiff’s complaint alleges that he was discharged from the Union City
Board of Education as the result of race, ethnicity, and ancestry discrimination, as well as in
retaliation for making the EEOC filing. Plaintiff further alleges that equal access to medical jobs has
been denied to him, and that Defendant Caputo serves as a “gatekeeper” for medical jobs. Plaintiff
has also set forth damages for losses attributable to unequal salary, to the perceived segregation of
the educational system, his inability to pursue activities in the medical profession, and his inability
to pursue a European Patent of the Gravity Buoyancy Technology.
On September 1, 2010 Defendant Caputo filed a Notice of Removal to Federal Court
2
Plaintiff appears to have attempted to “cc” Defendant to this email, but included
Defendant’s wrong email address. Defendant received a copy of Plaintiff’s email later that
morning
3
We also note that on or about October 1, 2009, Plaintiff submitted an “Intake
Questionnaire” to the EEOC, alleging that he was discriminated against on June 22, 2009 on the
basis of retaliation and ancestry. On or about October 29, 2009 the EEOC sent Plaintiff a letter
advising him that his submission failed to state a claim under the EEOC’s laws.
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pursuant to 28 U.S.C. § 1441. Following discovery, Defendant Caputo filed a motion for summary
judgment on April 28, 2011. For the reasons herein expressed, Defendant’s motion is granted.
II.
LEGAL STANDARD
Summary judgment is granted only if all probative materials of record, viewed with all
inferences in favor of the non-moving party, demonstrate that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 330 (1986). The moving party bears the burden of showing either
(1) there is no genuine issue of fact and it must prevail as a matter of law; or (2) that the non-moving
party has not shown facts relating to an essential element of the issue for which he bears the burden.
Celotex, 477 U.S. at 331. If either showing is made then the burden shifts to the non-moving party,
who must demonstrate facts that support each element for which he bears the burden, as well as the
existence of genuine issues of material fact. Id. The non-moving party “may not rest upon the mere
allegations or denials of his pleading” to satisfy this burden, FED. R. CIV. P. 56(e), but must produce
sufficient evidence to support a jury verdict in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986). The Court will consider all facts and their reasonable inferences in the
light most favorable to the non-moving party. See Penn. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d
Cir. 1995).
III.
ANALYSIS
Defendants have the initial responsibility to inform the Court as to its basis for motioning for
summary judgment. Having met this initial burden, Plaintiff can only survive the motion by
providing sufficient facts to establish the existence of an element essential to his case. Plaintiff has
failed to show facts relating to at least one of the essential elements in each one of his claims.
Consequently, Defendant’s motion for summary judgment must be granted.
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a.
Plaintiff’s Claim of Discrimination Based on Race, Ethnicity, and Ancestry Under
Title VII of the Civil Rights Act of 1964 Are Entitled to Summary Judgment
Plaintiff claims that his removal from the substitute list was the result of discrimination on
the basis of his race, ethnicity, and ancestry. Claims of employment discrimination are governed by
Title VII of the Civil Rights Act of 1964. Title VII provides that it shall be an unlawful employment
practice 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. 42
U.S.C. § 2000e-2(a).
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 and Co., 100 F.3d 1061, 1078 (3d Cir. 1996).
Therefore, claims of employment discrimination under Title VII cannot be brought against individual
employees who are not themselves employers. Plaintiff has brought his claim of discrimination
against Defendant Caputo, who is employed as the Assistant Superintendent of the Board of
Education, and not against the Board itself. As an individual employee of the Board of Education,
Defendant Caputo cannot be held liable for any claims arising under Title VII. Plaintiff has therefore
failed to properly allege a claim of employment discrimination against Defendant.
Even if Plaintiff could sustain his Title VII claim against Defendant Caputo, Plaintiff has
failed to properly allege a claim of discrimination. To satisfy his burden, Plaintiff must allege
sufficient facts to demonstrate that (1) Plaintiff belongs to a protected category, (2) that Plaintiff
applied and was qualified for a job the employer was trying to fill, (3) though qualified, he was
rejected, and (4) thereafter the employer continued to seek applicants with complainant’s
qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 792-93 (1973); see also Grassmyer
v. Shred-It, USA, Inc., 392 Fed.Appx. 18, 22-23 (3d Cir. 2010)(applying McDonnell Douglas to
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Title VII claim based on an employee’s termination).
Plaintiff alleges that he was removed as the result of his Cuban ancestry. Yet Plaintiff has
not provided further allegations that other employees not of Cuban descent were treated more
favorably, nor has Plaintiff put forth any facts suggesting any causal nexus between his ancestry and
his removal. Plaintiff can therefore not establish a claim of discrimination under Title VII.
Finally, Plaintiff has failed to overcome Defendant’s articulated non-discriminatory reason
for Plaintiff’s removal. Were Plaintiff able to establish a prima facie case of discrimination, the
burden of production shifts to Defendant to articulate some legitimate non-discriminatory reason for
the employee’s rejection. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994), citing McDonnell
Douglas, 411 U.S. at 802. Defendant has explained that Plaintiff’s removal was the result of two
separate requests by a school administrator that Plaintiff not be assigned to their schools. Plaintiff
was an at-will employee who did not have an employment contract with the Board and was not
guaranteed to any particular number of assignments. Defendant was therefore justified in removing
Plaintiff’s name from the substitute list in response to reports that Plaintiff was not performing
effectively as a substitute. Plaintiff has failed to refute Defendant’s assertion and a claim of
discrimination can therefore not be maintained.
b.
Plaintiff’s Claim of Retaliation Must be Dismissed
Plaintiff raises allegations that Defendant removed Plaintiff’s name from the substitute list
as the result of Plaintiff’s filing with the EEOC. However, Plaintiff fails to provide any facts to
demonstrate that Defendant received notification of the EEOC filing prior Plaintiff’s removal.
Moreover, Defendant denies having received notification of the EEOC filing prior to the institution
of this action, and Plaintiff has failed to provide any evidence to the contrary. Plaintiff has therefore
failed to support his claim of retaliation and summary judgment is appropriate.
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c.
Plaintiffs Claims Regarding Plaintiff’s Inability to Secure Employment in the
Medical Field, Segregation of Students through Unequal Access to Educational or
Remediation Tools, and Harm to European Patent Must be Dismissed
Finally, Plaintiff includes allegations regarding his inability to secure employment in the
medical field, the segregation of students through unequal access to educational or remediation tools,
and his inability to pursue his European patent. Plaintiff’s claims regarding the aforementioned
subject matter must be rejected as Plaintiff has failed to allege any connection between the actions
of Defendant and any of the alleged harm. Notably, Plaintiff has himself acknowledged his inability
to establish a connection between the harm alleged and Defendant’s conduct. Specifically, with
regard to Plaintiff’s claims regarding medical employment, Plaintiff has acknowledged the lack of
a direct connection between such harm and Defendant Caputo. With regard to Plaintiff’s claims
regarding school segregation, Plaintiff fails to specifically tie Defendant to such segregation.
Plaintiff rather vaguely alleges that Defendant is an administrator in the educational system, and that
discrimination based on race and ethnicity can be associated with a tendency of public educational
administrators to try to segregate students. Plaintiff fails to tie Defendant to any actual segregation,
nor does he provide any viable explanation as to why such segregation is relevant to his claim.
Finally, Plaintiff alleges no connection between Defendant’s conduct and Plaintiff’s patent, other
than the fact that his lack of an income has prohibited him from paying expenses associated with
pursuing the patent. Such an allegation is too attenuated to support any viable claim.
Plaintiff has therefore failed to allege any connection regarding the aforementioned harms
to Defendant Caputo. Summary judgment is therefore appropriate.
IV.
CONCLUSION
For the reasons stated, it is the finding of this Court that Defendant Caputo’s motion for
Summary Judgment is granted. An appropriate Order accompanies this Opinion.
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S/ Dennis M. Cavanaugh
Dennis M. Cavanaugh, U.S.D.J.
Original:
cc:
Clerk’s Office
Hon. Joseph A. Dickson, U.S.M.J.
All Counsel of Record
File
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