GRAHAM v. MONMOUTH COUNTY BUILDINGS AND GROUNDS et al
Filing
56
MEMORANDUM AND ORDER that Defendant Monmouth County Building and Grounds' 36 Motion for Summary Judgment is granted in part and denied in part. Defendant Krzyanowski's 43 Motion for Summary Judgment is granted in part and denied in part . Defendant Compton's 35 Motion for Summary Judgment is granted in part and denied in part. Defendant Bell's 38 Motion for Summary Judgment is granted in part and denied in part. Count II of the Complaint is dismissed. Plaintiff's 53 Motion for leave to file a Sur-Reply is denied as moot. Signed by Judge Peter G. Sheridan on 3/19/2018. (mps)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LUTHER GRAHAM,
Plaintiff,
v.
MONMOUTH COUNTY BUILDINGS
AND GROUNDS,
DAVID KRZYANOWSKI,
ROBERT W. COMPTON,
and CRAIG BELL,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No:
16-cv-01578 (PGS)
MEMORANDUM AND
ORDER
This matter is before the Court on Defendants’ motions for summary judgment. (ECF
Defendants.
No. 36, 43, 35, 38).
I.
Plaintiff Luther Graham is a Senior Electrician employed by Monmouth County Buildings
and Grounds Department (“County”). (First Amended Complaint (“FAC”) ¶ 15, ECF 22). On
March 22, 2016, Plaintiff brought a claim against his employer, Defendant Monmouth County
Buildings and Grounds for Monmouth County, New Jersey (“Defendant County”); Aaron Kinney
(Plaintiff’s direct supervisor), Craig Bell (Kinney’s supervisor and General Supervisor);1 David
Krzyanowski (Supervisor of General Services, and Bell’s supervisor); and Robert Compton
(Superintendent and Krzyanowski’s supervisor).
Plaintiff alleged various counts. His first count asserted violations of 42 U.S.C. § 1981
(“Section 1981”) for racial discrimination, retaliation for complaining of racial discrimination and
hostile work environment because of his race and/or because of his complaints of race
1
In late January 2015, James Shirley took over Defendant Bell’s supervisory responsibilities strictly as to Kinney’s
trade unit only. (Bell SOF ¶ 16, ECF 38-1).
1
discrimination against all Defendants. Plaintiff’s second claim asserted violations of the New
Jersey Law against Discrimination (“NJLAD”) for racial discrimination, retaliation for
complaining of racial discrimination and hostile work environment because of his race and/or
because of his complaints of race discrimination against all Defendants. (Compl. at 6; ECF 1).
On July 18, 2016, once his administrative remedies were properly exhausted, Plaintiff filed
his First Amended Complaint to include a third count for violations of Title VII of the Civil Rights
Act of 1964 (“Title VII”) for racial discrimination, retaliation for complaining of racial
discrimination, and hostile work environment because of his race and/or because of his complaints
of race discrimination against the County only. (FAC ¶ 6, ECF 22).
On April 11, 2017, Plaintiff voluntarily dismissed his claims for racial discrimination and
hostile work environment based upon race. (Bell SOF ¶ 8; ECF 38-1). The claims that remain for
the Court’s review are claims for Retaliation and Retaliatory Hostile Work Environment, both
under federal and state law.
The Amended Complaint consists of 19 paragraphs of alleged facts, depicting various
incidents of alleged discrimination, retaliation, and hostile work environment in support of the
above mentioned counts.
II.
Generally, Plaintiff is a 50 years old African-American man who began his employment
with the County Buildings and Grounds Department on or about 2004 in the position of
Electrician.2 (FAC ¶ 14-15). In August of 2007, the County promoted Plaintiff to Senior
The documents provided by the parties report different dates as the beginning of Plaintiff’s employment with
the County. The first amended Complaint states that “Plaintiff was hired by Defendant County in or about 2004… as
a senior electrician and remains employed as one to this day.” (FAC ¶ 14-15). However, Defendant Krzyanowski’s
statement of undisputed facts states that Plaintiff began working for the County in 1994 in the Division of Employment
2
2
Electrician. (County SOF at ¶ 4). Plaintiff remains in the position of Senior Electrician in the
Monmouth County Buildings and Grounds Department. (FAC at ¶15, ECF 22).
As best this Court understands it, Plaintiff is alleging that its employer’s discriminatory,
retaliatory and hostile actions, began following complaints he filed in 2015. Specifically, Plaintiff
alleges filing a complaint to management on February 2, 2015 for selective enforcement of the
attendance and other policies against him (FAC ¶17); Plaintiff also alleges filing another complaint
on March 12, 2015 for discrimination (Id. ¶20), and on October 1, 2015 for discrimination and
retaliation. (FAC ¶29). For clarity, the Court has reorganized the events alleged by Plaintiff in
chronological order.
Construction Project Coordinator Position
Plaintiff alleges that he was not hired for the position of construction project coordinator
in retaliation to the complaints filed with his employer. On October 10, 2013, Defendant Compton
approved the posting3 for an anticipated vacancy for the Construction Project Coordinator position.
(Compton SOF ¶ 22; ECF 35-2). The vacancy was “anticipated” because the position was filled at
that point by another employee named Walter Gawron, who had expressed that he may retire in
2014. (County SOF ¶ 33, ECF 36-5). Plaintiff alleges that he was not granted an interview for the
Project Coordinator position. (Graham SOF ¶ 24; ECF 45-1); however, Plaintiff along with three
other County employees were interviewed for the position on January 28, 2015. Id. Although the
County eventually narrowed down the applicants to Plaintiff and one other individual, nobody was
and Training. In 2005 he because an Electrician with the County’s Division of buildings and Grounds. (ECF No. 431 ¶1-2) The County’s statement of undisputed facts state that “On March 7, 2005, Plaintiff commenced his
employment in the Monmouth County Buildings and Grounds Department in the position of Electrician. (ECF No.
35-2 ¶2). The Court narrates the facts as stated in the amended complaint noting any additional information from other
documents accordingly. (ECF No. 22).
3
The County’s hiring process must follow civil service requirements and the County Administrator must
approve all job postings and decisions. (Krzyanowski SOF ¶ 44, ECF 43-1).
3
hired because Walter Gawron never retired. (Compton SOF ¶ 23;¶ 33-35). The job posting was
ultimately abandoned. (County Br. at 16, ECF 36-2).
“Get rid of Luther” Comment
On March 12, 2015, Plaintiff filed a written complaint with the County, alleging that he
was being discriminated based on his race by Defendants Bell, Compton, and Krzyanowski. (FAC
¶ 19-20). Graham claims that because he filed the complaint, Defendant Krzyanowski told Kinney
that he wanted to “get rid of” him; and he was very angry that Plaintiff “had gone to Personnel”,
and asked something along the lines of “who was Luther [Graham] to question us.” (Graham Br.
at 15; ECF 45; Graham SOF at 5, ECF 45-1).
Assistant Building & Maintenance Supervisor Positions
Plaintiff alleges that a number of discriminatory and retaliatory actions followed in April
2015.
Graham alleges “For example, in or about April of 2015, Defendants management
pretexually denied Plaintiff the opportunity to interview for a promotion to Assistant Building &
Maintenance Supervisor” on two occasions, and that the promotions were subsequently given to
less qualified, nonblack applicants. (FAC 23-24). The County posted these two positions on
December 18, 2014.
1.
Assistant Supervising HVAC Mechanic.
Plaintiff alleges that he was unable to apply for the Assistant Building and Maintenance
Supervisor position because it was posted on December 18, 2014, as an Assistant Supervising
HVAC Mechanic position. (County SOF ¶ 31, ECF 36-5). Essentially, Plaintiff argues that
Defendants Compton, Bell, and Krzyanowski manipulated these job postings to exclude him from
applying for higher positions in retaliation for his filing complaints. (Graham SOF ¶ 18, ECF 451). However, this position required applicants to hold the title of Heating and Air conditioning
4
Mechanic, which Plaintiff did not hold. Thus, it appears that he was unable to apply because he
did not qualify for the positon. (County SOF ¶ 31; ECF 36-5).
2. General Supervisor of Building Services.
Plaintiff lacked required qualifications for the General Supervisor of Building Services
position as well, because as he admitted that Plaintiff did not have a promotional title in building
services. (County Br. at 17; ECF 36-2; see also County SOF ¶36; ECF 36-5).4 The person who
obtained the position, Scott Griffin, held such a title within the Building Services promotional title
chain. (Defendant County Br. at 17; ECF 36-2).
Notices of Lateness
On or about April 30, 20155, Graham again complained in writing to Defendant of “on
going harassment,” and alleging that he was subjected to repeated retaliatory and discriminatory
actions because Defendants pretextually denied him the opportunity to interview for a promotion
to Assistant Building and Maintenance Supervisor. (County SOF at ¶ 14, ECF 36-5; See FAC at ¶
21-22, ECF 22). On or about May 1, 2015 James Shirley, who took over Defendant Bell’s position
as General Supervisor in January 2015, issued Plaintiff a performance notice for lateness because
Plaintiff had clocked in late ten times from January to April 29, 2015.6 (Bell SOF ¶ 21, ECF 38-1;
Id. at ¶ 20). Plaintiff alleges that “Defendant Individuals […] issued Plaintiff pretextual discipline
in or about April of 2015” (FAC ¶25). “Specifically, Plaintiff was disciplined for being mere
seconds late in or about April of 2015.” (FAC ¶26). Plaintiff alleges that the disciplinary action
was issued in retaliation of his complains. (Graham SOF ¶ 19; ECF 45-1). Defendant contests
whether the complaint was received before the notice was issued. Further, Defendant Compton
4
It is unclear when the General Supervisor position was posted.
The Amended Complaint does not mention this date specifically as one of the complaints filed by Plaintiff.
6
Defendant County asserts that the County also issued Plaintiff a performance notice for lateness in 2011.
(County SOF ¶ 8, ECF 36-5).
5
5
testified that lateness is not checked every day but rather is part of an audit that is done on the
entire staff at once. (County SOF ¶ 22; ECF 36-5). As a result of the May 2015 audit, “multiple”
employees were given notices of counseling for lateness. (Id. at 23.) Plaintiff was included in that
class, as one of approximately 25 employees who were given counseling notices as a result of
being late. Id.
EEOC Complaint
On June 18, 2015, Plaintiff filed a written complaint with the County. (Id. at ¶ 26). On July
30, 2015, Graham filed a charge of employment discrimination with the EEOC and the New Jersey
Division on Civil Rights. (Id. at ¶ 15). The County responded to Plaintiff’s February 2, March 12,
April 30, and June 18, 2015, complaints in writing on August 5, 2015. (Id.) The County noted that
it investigated Plaintiff’s complaint that he was denied an interview for the position of Project
Manager and concluded that the County interviewed Plaintiff on January 28, 2014. (Id.) The
County also concluded that Kinney denied that Defendant Krzyanowski used the phrase “get rid
of” referring to Plaintiff, and admitted that that was only his interpretation of what Krzyanowski
had said to him. (Id. at ¶ 17). Plaintiff acknowledged receipt of the County’s written response to
his three complaints and admitted that the County’s response answered his complaints. (Id. at ¶
16).
“Driving Miss Daisy” Comment
Since at least 2013, Plaintiff rode with Defendant Kinney, Plaintiff’s direct supervisor, to
jobs about two to three times per week because Kinney started relying on him in more of a
leadership role. (Id. at ¶ 10). Kinney acknowledged that Plaintiff’s new leadership role caused
problems with the staff and that he received complaints about Graham not doing his work. (Id. at
6
¶ 11). On March 6, 2013, Defendant Bell advised Kinney that if Kinney needed down time, he
“shouldn’t be riding around with [Plaintiff].” (Id. at ¶ 12).
On September 15, 2015, Defendant Kinney told Plaintiff that they were no longer allowed
to ride to jobs together in the same vehicle. (FAC at ¶ 27, ECF 22). In the Complaint Plaintiff
alleges that Defendants referred to him and Kinney riding together in a vehicle as “Driving Ms.
Daisy.” (FAC at ¶ 28). In his finding of facts, Plaintiffs adds more details to this specific instance
stating that he supports that he is the only electrician forced to never ride with his supervisor and
argues that this occurred ever since him and Kinney complained about Krzyzanowski referring to
the pair as “Driving Ms. Daisy.”7 (SOF ¶ 26 (a), ECF 45-1) Kinney is Caucasian and Plaintiff is
African-American. Id. Defendants dispute who among them made this statement first. (SOF ¶ 26,
ECF No. 45-1). On the same day, Plaintiff requested reconsideration of the County’s findings in
its August 5, 2015, letter response to Plaintiff’s three previous complaints. (Id. at ¶ 27). The County
responded in writing on September 24, 2015. (Id.) Plaintiff received the letter and then appealed
the County’s September 24, 2015 response to the Civil Service Commission on September 30,
2015. (Id.).
On October 1, 2015, Plaintiff filed a written complaint with the County, alleging he was
being subjected to discrimination and retaliation. (FAC at ¶ 29, ECF 22). Plaintiff alleged that he
had not been considered for any promotion positions, his complaints of discrimination had not
been properly investigated, and he continued to be subjected to a hostile work environment based
on racial discrimination and retaliation for complaints of discrimination. (Id. at ¶ 30-31).
7
The Complaint does not mention the date when that statement was made.
7
Defendant County responded to this complaint on February 10, 2016, and Plaintiff received this
letter. (Id. at ¶ 28-29).
Supervising Maintenance Repair Position
Plaintiff applied for a Supervising Maintenance Repair Position which was posted as an
anticipated vacancy on or about March 8, 2016. (County SOF ¶ 42; ECF 36-5). However,
Defendant Compton abandoned this job posting because Human Resources informed him that if
he hired someone for this position, another County employee would be laid off. Id.
Crew Supervisor—Building Maintenance Position
Plaintiff also applied for the Crew Supervisor—Building Maintenance position that was
posted as an anticipated vacancy on or about March 8, 2016. (Defendant County Br. at 19; ECF
36-2). Graham was interviewed for the position. (County SOF ¶43; ECF 36-5). However, another
candidate, Robert Briscoe, was hired. Defendant Compton supports that the other candidate simply
had a better interview, thus was awarded the position. Id. Parties have not provided any records
regarding Briscoe’s qualifications.
Management Assistant Position
Plaintiff alleges that he was not hired for a Management Assistant position and someone
less qualified was. Defendants submit that a Management Assistant position was posted on July
15, 2016. Plaintiff was interviewed for the Management Assistant position and that “Graham was
dismayed that the position would have been a demotion and a pay cut from what he was earning
as a Senior Electrician.” (County SOF ¶ 37, ECF 36-5).
Parking Notice
Plaintiff does not specifically mention an issue with parking in the Complaint, though he
mentions receiving notices. On November 29, 2016, Plaintiff received a performance notice for
8
parking a county vehicle in a handicapped parking space. (County SOF ¶ 38; ECF 36-5). The
notice was issued after Defendant Compton observed the vehicle parked in the handicapped
parking spot and instructed James Shirley to issue a performance notice to whomever parked in
the handicapped space. (County Br. at 23-24; ECF 36-2). The performance notice stated it was “a
supervisory tool only and is not recognized as any form of discipline.” (County SOF ¶ 38; ECF
36-5). Defendant Compton testified that he did not have any conversations with Plaintiff about the
issue because “it was just a performance notice, like I said. It wasn’t discipline. It was to put him
on notice that his behavior was unacceptable.” (Id. at ¶ 39). Plaintiff alleged that the notice was
one of multiple retaliatory acts by Defendants Bell and Compton. (Graham Br. at 29; ECF 45).
Parking in a handicapped space without a valid permit is against New Jersey Law. N.J.S.A.
39:4-197.
Relief Requested
Plaintiff, raised the above instances in his Complaint, now asks this Court to enter an Order
prohibiting the Defendants from continuing to maintain their illegal policy, practice or custom of
discriminating against employees and ordering the Defendants to promulgate an effective policy
against discrimination and retaliation. Second, Plaintiff also seeks that this Court make him whole
again and order Defendants to pay him what he would have received had it not been for
Defendants’ illegal actions8, including but not limited to past lost earnings, future lost earnings,
salary, pay increase, bonuses, medical and other benefits, training, promotions, pension, and
seniority. Third, Plaintiff seeks punitive damage and/or liquidated damages. Fourth, Plaintiff seeks
damages for emotional distress and/or pain and suffering and any all other equitable and legal
relief as the Court deems just, proper, and appropriate. Fifth, Plaintiff seeks reimbursement of costs
8
Assuming he would have been hired for the positions he applied for.
9
and expenses of this action and reasonable legal fees as provided by applicable law. (FAC at ¶67, ECF 22).
III.
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant,
and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a
district court may not make credibility determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence “is to be believed and all justifiable inferences are to be
drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting
Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations . . . and pleadings
are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912 F.2d 654,
657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial”). Moreover, only disputes over facts that might
affect the outcome of the lawsuit under governing law will preclude the entry of summary
10
judgment. Anderson, 477 U.S. at 247-48. If a court determines, after drawing all inferences in
favor of [the non-moving party], and making all credibility determinations in his favor “that no
reasonable jury could find for him, summary judgment is appropriate.” Alevras v. Tacopina, 226
Fed. App’x. 222, 227 (3d Cir. 2007).
IV.
I.
Retaliation under Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the New Jersey
Law Against Discrimination (“NJLAD”).
(Count I: Violation of 42 U.S.C. § 1981 for retaliation for complaining of
racial discrimination) (against all Defendants)
(Count II: Violation of NJLAD for retaliation for complaining of racial
discrimination) (against all Defendants)
(Count III: Violation of Title VII for retaliation for complaining of racial
discrimination) (against Defendant Monmouth County Buildings and
Grounds)
Title VII of the Civil Rights Act provides as follows:
It shall be an unlawful employment practice for an employer . . . 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-3].
Moreover, 42 U.S.C. § 1983 mandates as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress, except
that in any action brought against a judicial officer for an act or
omission taken in such officer's judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or
11
declaratory relief was unavailable. For the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of
Columbia.
[42 U.S.C. § 1983].
Similarly, the NJLAD provides as follows:
It shall be an unlawful employment practice, or, as the case may be,
an unlawful discrimination . . . [f]or 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 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 this act.
[N.J.S.A. 10:4-12(d)]
Under 42 U.S.C. § 1981, all persons are able to “make and enforce contracts” and are
“protected against impairment by nongovernmental discrimination and impairment under color of
State law.” An individual may be liable under § 1981, if the plaintiff demonstrates “some
affirmative link to causally connect the actor with the discriminatory action . . . [P]ersonal liability
under section 1981 must be predicated on the actor's personal involvement.” Patterson v. Cty. of
Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004).
The burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973), for cases arising under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e
et seq., also applies to claims arising under § 1981. See Est. of Oliva ex rel. McHugh v. State of
N.J., 604 F.3d 788, 798 n. 14 (3d Cir. 2010). First, plaintiff must establish a prima facie case of
discrimination by showing by a preponderance of the evidence that: (1) plaintiff is a minority; (2)
plaintiff applied for, is qualified for, and was rejected for the position sought; and (3) non-members
12
of the protected class were treated more favorably. McDonnell Douglas, 411 U.S. at 802. The
defendant may then rebut the discriminatory presumption by showing there was a “legitimate,
nondiscriminatory reason” why the employer preferred another employee. Id. If the defendant
successfully rebuts the discriminatory presumption, then the burden shifts back to the plaintiff,
who must show that the reasons proffered by the defendant are pretextual. Id. at 804.
To survive summary judgment, plaintiff must come forward with sufficient evidence to
establish a prima facie case. To that end, plaintiff must demonstrate that he:
1. Was engaged in a protected activity;
2. Suffered an adverse employment decision; and
3. There was a causal connection between the two.
Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001). The analysis for Section 1983 claims and
NJLAD claims are almost identical to the test enumerated in Cardenas. See Rauser v. Horn, 241
F.3d 330, 333 (3d Cir. 2001).
Under the first prong, examples of protected activities include filing complaints and/or
lawsuits alleging discrimination. See Sgro v. Bloomberg L.P., 331 Fed. Appx. 932, 939 (2009).
Under the second prong, “a plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington Northern,
548 U.S. at 68. An adverse employment action is also one which is “serious and tangible enough
to alter an employee’s compensation, terms, conditions, or privileges of employment,” “which
would tend to deprive [the employee] of employment opportunities or otherwise affect [the
employee’s] status as an employee.” Cardenas, 269 F.3d at 263 (quoting Robinson v. Pittsburgh,
120 F.3d 1286, 1300 (3d Cir. 1997); Burlington Northern, 548 U.S. at 68)). Lastly, a determination
of whether there was a materially adverse employment action requires an analysis of the
employer’s actions in the aggregate. See Brennan v. Norton, 350 F.3d 399, 422, n.17 (3d Cir. 2003)
13
(stating that “[t]he cumulative impact of retaliatory acts may become actionable even though the
actions would be de minimis if considered in isolation.”)
In elaborating on the standard, the United States Supreme Court recognized “Title VII does
not set forth ‘a general civility code for the American workplace.’” Burlington Northern, 548 U.S.
at 68 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). “The
antiretaliation provision protects an individual not from all retaliation, but from retaliation that
produces an injury or harm.” Burlington Northern, 548 U.S. at 67 (internal quotations omitted).
“Trivial harms,” “petty slights” and lack of good manners on the part of co-workers are insufficient
to establish an adverse employment action. Id. at 68.
To determine whether conduct was retaliatory, courts have focused on two factors: (1) the
temporal proximity between the protected activity and the alleged discrimination, and (2) the
existence of a pattern of antagonism in the intervening period. Jensen v. Potter, 435 F.3d 444, 450
(3d. Cir. 2006). For timing alone to raise an inference of discrimination, it must be “unusually
suggestive of retaliatory motive” Id. Courts will also evaluate the evidence in totality to determine
whether it gives rise to an inference of discriminatory conduct. Id.
II.
Hostile Work Environment under Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and
the New Jersey Law Against Discrimination.
(Count I: Violation of 42 U.S.C. § 1981 for hostile work environment because of
Plaintiff’s complaints of race discrimination) (against all Defendants)
(Count II: Violation of NJLAD for hostile work environment because of Plaintiff’s
complaints of race discrimination) (against all Defendants)
(Count III: Violation of Title VII for hostile work environment because of
Plaintiff’s complaints of race discrimination) (against Defendant Monmouth
County Buildings and Grounds)
14
A prima facie case of hostile work environment requires plaintiff to establish the
following criteria:
(1)
(2)
(3)
(4)
Plaintiff suffered intentional discrimination because of her protected activity;
The discrimination was severe or pervasive;
The discrimination detrimentally affected him or her;
The discrimination would have detrimentally affected a reasonable person in like
circumstances; and
(5) A basis for employer liability is present.
Jensen v. Potter, 435 F.3d 444, 450 (3d. Cir. 2006). In assessing whether conduct is severe or
pervasive, courts 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 the employee’s work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). However, in considering the
totality of the circumstances, courts filter out “simple teasing, offhand comments, and isolated
incidents.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Plaintiff claims that there can be little doubt that being precluded from traveling with his
supervisor for work purposes, being singled out for disciplines by members of upper management
immediately following complaining of discrimination, being told upper management may disfavor
Plaintiff from communicating with human resources, and threatening disciplinary action for
asserting written complaints of race discrimination, all constitute a factual question as to a
retaliatory “hostile work environment.” (Graham Br. at 26; ECF 45). Moreover, Plaintiff supports
that he has proffered plenty of evidence that a factfinder could easily disbelieve Defendants’
proffered reasons for these retaliatory acts. Id. Therefore, he requests this Court to deny dismissal
of his retaliatory/hostile work environment claim. Id.
15
V.
As an initial matter, the Court reviews Plaintiff’s general allegations that Defendant County
failed to fully investigate his complaints to HR. (Compl. at ¶ 30; ECF 22). Plaintiff concludes that
Defendant County’s intentionally conducted poor investigations as retaliation against Plaintiff for
his complaints. Id.
Defendant County responded to Plaintiff’s February 2, March 12, and April 30, 2015
complaints in writing on August 5, 2015. (County SOF ¶ 16; ECF 36-5). The letter stated that an
investigation was conducted. Id. Further, Plaintiff’s June 18, 2015 complaint was investigated and
the County responded on October 15, 2015. (Id. at ¶ 26). Lastly, Plaintiff’s October 1, 2015
complaint was investigated and the County responded on February 10, 2016. (Id. at ¶ 28).
First, Defendants maintain that Defendant County’s August 2015 investigative response
does not constitute an “adverse action” for purposes of a retaliation claim. Id. Pursuant to
Defendant County’s policy, employees are encouraged to promptly report incidents of perceived
discrimination to HR. (Defendant County’s Reply at 8; ECF 49). Once a complaint is registered,
an investigation will be conducted. Id. Defendant County stresses that it is not obligated to believe
Plaintiff’s complaint or to find in Graham’s favor merely because Plaintiff filed a complaint in the
first place. Id. Defendant County further argues that Plaintiff was not dissuaded from filing
subsequent complaints simply because the claims in his earlier complaints were ultimately
rejected. Id.9
In fact, Plaintiff filed two more complaints after Defendant County’s August 2015 response: one on June 18, 2015,
and one on February 10, 2016. (Defendant County Stmt. of Facts ¶ 26-28; ECF 36-5).
9
16
Second, Defendants submit that Defendant County investigated Plaintiff’s complaints and
Plaintiff, in turn, admitted that Defendant County’s August 2015 response was responsive to his
complaints. Id. at 9. Defendants argue that even if this Court finds that Defendant County’s
response is a retaliatory adverse action, Defendant County had a non-discriminatory reason for its
response because the County’s Personnel Department could not substantiate the allegations in
Plaintiff’s complaints. Id.
Lastly, Defendants argue that the County’s August 2015 response was not pretextual
because Plaintiff has only shown that there was a disagreement between Defendant County’s
Personnel Department and Plaintiff over whether Plaintiff was interviewed for the Project
Coordinator position. Id. Defendant County’s response noted that its investigation disclosed that
Plaintiff was interviewed for this position. Id. Therefore, Defendants emphasize that there is no
evidence that Defendant County retaliated against Plaintiff via its August 2015 response to
Graham’s complaints. Id. This Court agrees.
Next, the Court reviews the incidents that allegedly constituted evidence of retaliation and
hostile work environment.
Discovery, and additional facts provided by the parties have clarified some but not all the
instances alleged by Plaintiff. Applying the legal standards mentioned above the Court finds that
Defendant has provided sufficient information to show that the instances raised by Plaintiff were
not pretext for discrimination. Additionally, Plaintiff failed to show a prima facie case for some
of the occurrences. For instance, Plaintiff’s notice of lateness was the result of a periodic check
conducted by Defendants. Plaintiff was one among 25 employees to receive a notice. Further,
Plaintiff did not deny being late. He simply found the notice unfair because he was “mere seconds”
late. Lastly, as explained by Defendants, the performance notice was not an adverse employment
17
action. (County Br. at 20-22; ECF 36-2). Plaintiff has not identified any diminution in salary,
demotion, or loss of benefits in his testimony as a result of the performance notice for lateness.
(County Br. at 21; ECF 36-2).
Another blatant example of mere policy enforcement is the parking notice that Plaintiff
received in 2016 for parking in a handicap parking space. Plaintiff’s behavior was against the law.
The employer had a right to notify Plaintiff. Thus, a notice with regards to this infraction cannot
support a claim for retaliation.
With regards to the employment promotions Plaintiff did not receive, the Court is satisfied
with the additional facts as provided by Defendants for most of the positions discussed. Plaintiff
may not allege retaliation for positions that were never filled, or for which he did not possess the
required qualifications. Nevertheless, the same is not true for the Crew Supervisor position, posted
on March 18, 2016, for which Plaintiff was interviewed but not hired.
With regards to that position, Defendants only justified not hiring Plaintiff because they
interviewed a better candidate. Parties did not provide evidence that the individual that was hired
was more or less qualified. Therefore, the Court does not have sufficient information to make a
determination of whether this constituted a retaliatory or hostile action.
The remaining two incidents described by Plaintiff consist of statements that were
allegedly made by Defendants.
First, the “get rid of” him statement. Plaintiff cannot rely on the assertions he made in his
complaint to survive a summary judgment motion. See Berckeley Inv. Group, Ltd. v. Colkitt, 455
F.3d 195 (3d. Cir. 2006). (Defendant County Br. at 24-26; ECF 36-2). Graham admitted in his
deposition that he was not present when Defendant Krzyanowski allegedly stated that he wanted
to get rid of him. Id. at 25. Defendants, on the other hand, argue that this comment was made
18
before Graham filed a complaint. (County SOF ¶ 19-20; ECF 36-5). On the same date, Plaintiff
filed an Unfair Labor Practice Charge with the New Jersey Public Employment Relations
Commission. (Id. at ¶ 13). Plaintiff also admitted that Kinney told Plaintiff about this statement.
Id. In turn, Kinney testified that Defendant Krzyanowski did not state that he wanted “to get rid
of” Plaintiff. Id. Kinney was the sole witness to Defendant Krzyanowski’s second alleged
statement of “Who is Luther to question us?” Id. Kinney, however, did not attribute this statement
to Defendant Krzyanowski in his deposition. Id. at 26. Lastly, Krzyanowski’s statement that he
was angry at Plaintiff for going to the County’s Personnel Department was connected to a
paycheck issue in 2005, not about Plaintiff’s March 12, 2015 complaint. (Defendant County Reply
at 5; ECF 49). Therefore, the record appears to be devoid of any evidence that shows Defendants
openly threatened Plaintiff’s job security because Plaintiff filed a complaint with the County.
The last incident involves Plaintiff’s prohibition against riding in the car with Kinney and
the “driving Ms. Daisy” statement allegedly made by Defendants. Plaintiff claims that he was told
that he could not ride with Kinney in the same work truck on September 15, 2015, or sometime
after he submitted his rebuttal to Defendant County’s response to his complaints. (FAC at ¶ 27,
ECF 22).
The Court fails to see how being told not to ride around in a truck with his supervisor
constitutes an adverse employment action. (Defendant County Reply at 10-12; ECF 49). Plaintiff
suffered no diminution of salary or benefits from this action. (County Br. at 27; ECF 36-2). He
simply had to take his own truck to the applicable job site. Id. Plaintiff supports that he was the
only one who was not allowed to ride in a car with his supervisor in retaliation to the complaints
he filed. However, as far as the Court can tell, this statement is conclusory and uncorroborated.
The testimony of Kinney and Defendant Krzyanowski confirms that Kinney was directed to stop
19
riding around with Plaintiff because he was spending too much time not doing his own work and
that it was causing the other electricians to complain. (County SOF ¶ 11; ECF 36-5).
Additionally, Defendants contend that there is no causal link to Plaintiff’s September 15,
2015 complaints because the concerns surrounding Kinney and Plaintiff riding to jobs together
date to at least 2013. (Defendant County Br. at 26-29; ECF 36-2). Defendants also argue that
Plaintiff was aware that driving with Kinney was an issue before his September 15 complaint. In
fact, Kinney testified that he told Plaintiff several times they could not ride together. Plaintiff also
testified during his deposition that Kinney told him that Bell did not like them riding together; and
Plaintiff further testified that employees Desiato and Quade also told him before September 15
that Bell was going to “stop the togetherness.” Id.
Plaintiff also alleges that “Defendant individuals referred to Plaintiff (African-American)
and Kinney (Caucasian) riding in a vehicle together as ‘Driving Miss Daisy.’” (FAC ¶ 28, ECF
22). It is unclear who made the comment or who said it first among Defendants. It remains that
Plaintiff voluntarily dismissed the claims for racial discrimination. The remaining occurrence
based on these facts focuses on his prohibition from driving in the same truck with Kinney.
Overall, Defendants met their burden by explaining that the incidents raised by Plaintiffs
were not guided by retaliatory motive nor did they constitute hostile action due to his complaints,
in all but one instance. Due to the lack of support and facts, the Court cannot grant summary
judgment on the instance involving Plaintiff’s application to the Crew supervisor position.
Explaining that another applicant interviewed better is not sufficient to defeat a retaliation
allegation.
Plaintiff brings claims against the County, as well as individual Defendants under Title
VII, 42 U.S.C. §1981, §1983, and NJLAD. “[T]his Circuit has held that Title VII claims cannot be
20
brought against individual employees.” White v. Cleary, 2012 U.S. Dist. LEXIS 36694, *14
(D.N.J. Mar. 16, 2012). “New Jersey LAD claims for hostile work environment,[…] also limit
liability against an employer. N.J.S.A. § 10:5-12(a). Individual employees may be held personally
liable for New Jersey LAD claims under an aiding and abetting theory where a supervisory
employee aids and abets an employer's violation of the Act. N.J.S.A. § 10:5-12(e); Hurley v.
Atlantic City Police Dept., 174 F.3d 95, 125-26 (3d Cir. 1999).” Id. at *15. Here, Plaintiff has not
specifically pled an aiding and abetting theory and therefore the New Jersey LAD claim against
individual defendants must be dismissed.
Thus, the only remaining Counts at this time are Count I and Count III for retaliation and
hostile work environment against the County and individual Defendants, specific to the events
surrounding Plaintiff’s application, interview, and rejection for the Crew Supervisor Position.
Count II is dismissed at this time.
ORDER
THIS MATTER having been opened to the Court by Defendants’ motions for summary
judgment (see ECF No. 35, 36, 38, 43); and the Court having fully considered the submissions in
support thereof, and any opposition thereto; and having considered the arguments of counsel; and
for good cause shown;
IT IS on this 19th day of March, 2018,
ORDERED that Defendant Monmouth County Building and Grounds’ motion for
summary judgment (see ECF 36) is granted in part and denied in part; and it is further;
ORDERED that Defendant Krzyanowski’s motion for summary judgment (see ECF 43)
is granted in part and denied in part; and it is further;
21
ORDERED that Defendant Compton’s motion for summary judgment (see ECF 35) is
granted in part and denied in part; and it is further;
ORDERED that Defendant Bell’s motion for summary judgment (see ECF 38) is granted
in part and denied in part; and it is further;
ORDERED that Count II of the Complaint is dismissed; it is further;
ORDERED that Plaintiff’s motion for leave to file a Sur-Reply (ECF No. 53) is denied as
moot.
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?