BARRY PARKER v. CITY OF TRENTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3647-06T23647-06T2

BARRY PARKER, CARLTON GOSS,

RUSSELL WILSON, PATRICK JACKSON,

and WILLARD B. ISABEL,

Plaintiffs-Appellants,

vs.

CITY OF TRENTON, a Municipality

of the State of New Jersey, BRANDINO

CACALLORI, WILLIAM MITCHELL,

RONALD LIND and JOHN MARTIN,

Defendants-Respondents.

__________________________________

 

Argued: March 5, 2008 - Decided:

Before Judges Cuff, Lisa and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1442-00.

John E. MacDonald argued the cause for appellants (Stark & Stark, attorneys; Mr. MacDonald and Jason A. Storipan, of counsel and on the briefs).

James T. Prusinowski argued the cause for respondent City of Trenton (Laufer, Knapp, Torzewski, Dalena & Sposaro, L.L.C., attorneys; Stephen E. Trimboli, of counsel and on the brief; Mr. Prusinowski, on the brief).

Peter J. Cohen, Assistant City attorney, argued the cause for respondent Brandino Cacallori (R. Denise Lyles, City of Trenton Director of Law, attorney; Mr. Cohen, on the brief).

Joel B. Korin argued the cause for respondents William Mitchell, Ronald Lind and John Martin (Ballard, Spahr, Andrews & Ingersoll, LLP, attorneys; Mr. Korin, of counsel and on the brief; Joseph T. Ciampoli, on the brief).

PER CURIAM

Plaintiffs are or were employed by Trenton Water Works (TWW), a municipal utility owned and operated by the City of Trenton (the City). In April 2000, they filed a complaint in which they alleged that their efforts to obtain promotions were frustrated and blocked by defendants due to their race, and that defendants created and perpetuated a hostile work environment. In an amended complaint filed in July 2002, plaintiffs alleged that defendants engaged in retaliatory acts after plaintiffs commenced this action. Plaintiffs appeal two orders granting summary judgment in favor of defendants and dismissing the entirety of their complaint. We reverse.

Each plaintiff worked at the Trenton Water Filtration Plant (the Plant) as a laborer, an operator, or a repairer. A laborer dumps chemicals, cleans the facility, and assists the repairers or mechanics. An operator treats the water, tests the water, and runs the water treatment facility. A repairer fixes things that break down from welding parts to doing some electrical work.

Plaintiff Barry Parker commenced work for the Plant in 1993. He was initially hired as a laborer. Parker was promoted from laborer to repairer in 2000, around the time that the complaint was filed. Plaintiff Carlton Goss also began working at the Plant in 1993, and in 1994 he was promoted from laborer to operator. He was promoted to senior water treatment plant operator on September 18, 2006. Plaintiff Russell Wilson commenced work for the City's building maintenance department in 1991 and was transferred to the position of laborer at the Plant in 1996. Plaintiff Patrick Jackson commenced employment at the Plant as a laborer in 1997, and was promoted to the position of operator in 2001. Plaintiff Willard Isabel became a laborer at the Plant in 1992 and became an operator in 1995. All plaintiffs are African-American.

Eric Jackson is the Director of Public Works for the City, which includes the TWW. Eric Jackson is African-American and was not named as a defendant in this lawsuit, but the balance of plaintiffs' supervisors, who are all Caucasian, were named as defendants. Defendant Brandino Cacallori is the general superintendent chief engineer. He does not work onsite at the Plant, and he supervises defendant William Mitchell, the superintendent of the Plant. Mitchell supervises defendant Ronald Lind, the assistant superintendent at the Plant, and defendant John Martin.

Lind is responsible for scheduling all of the operators on a daily basis, which includes dealing with time-off requests. He is also responsible for training the operators and he has been a supervisor to all plaintiffs. Martin supervises maintenance repair and is responsible for scheduling jobs. He described his position as equivalent to that of a foreman.

Parker has an eleventh grade education. He was promoted to become the Plant's first African-American water treatment plant repairer. However, he claims that he only received the promotion after the Director of Public Works issued a specific order to do so. In order to qualify for the promotion, Parker tried to have his work schedule altered so he could take work-related classes. These schedule changes were denied. Parker alleged that his Caucasian co-workers were permitted to change their schedules to attend classes. During his deposition, Parker recounted an incident in which he told Martin and Lenny Watley, "I don't want you to take it personally or anything but you're looking at your first black mechanic." Parker testified that Martin responded, "There will never be a black mechanic here."

Parker also testified that African-American workers are given the dirtiest jobs. For example, he explained that although he has more seniority than another white mechanic, he is still assigned to the dirtiest jobs, like working in the basins thirty feet down in the sludge. Meanwhile a white worker, Kenny Starky, receives the same assignment everyday.

Goss attended high school in Jamaica and college in England, where he received a one year degree in mechanical engineering. He was promoted to operator at the Plant, but he alleged that he was only able to achieve this promotion by utilizing his sick time and vacation time to attend night classes to obtain the required license. He was scheduled for rotating shifts, and like Parker, Goss was unable to alter his work schedule to accommodate these classes, unlike some white employees.

Goss noted that in addition to the Civil Service exam that he took for the promotion, he was also subjected to an individual test created and administered by Mitchell. He never received the results from this test. Goss asserted that shortly after taking the supplemental test, he acquired his T-1 license, which he claimed should have led directly to the promotion he sought. Rather, in 1998, Goss applied for the job of mechanic and attended three interviews, and Martin told him that he could not recommend him for the job because he could not understand Goss's accent. In his affidavit, Goss noted that he spoke English proficiently and his degree in mechanical engineering more than qualified him for the mechanic position. Goss was not promoted until 2006. He claimed that after the lawsuit was filed in 2000, his promotion prospects worsened; he was not promoted even after many people had retired or resigned. Goss also testified at his deposition that he put his name on lists for various promotions, but was never called or interviewed for those positions.

In his affidavit, Wilson stated that, like Goss, when he applied for a promotion to operator in 1996, he was given a test that was created and administered by Mitchell. When Wilson asked for the results, Mitchell told him that he was not qualified for the job because his mathematical skills were insufficient. Wilson alleged that during this same time period a white employee, Michael Volosky, was given the same test. However, Volosky took the test in the front office with Lind and Martin, who allegedly were giving Volosky the answers to the test.

In 1997, Wilson again placed his name on a list for the position of operator. Wilson did not get the position and discovered later that his file had been changed to indicate, "Russell no longer interested." According to Mitchell's secretary, the statement was written in Mitchell's handwriting. Wilson unsuccessfully sought assistance from his union representative. During this time, two white employees, with no prior experience, were hired as operators.

Wilson also testified that he was placed on dump duty even though it was not his turn for that assignment. He was ordered to do jobs that had not been done for years. He admitted that his treatment was likely a combination of age and racial discrimination.

Patrick Jackson graduated from high school and attended two years of auto mechanic technician vocational training. He testified that there were no special educational requirements to become a water treatment plant operator, yet he made numerous attempts to be promoted to that position without success. In 1998, Patrick Jackson informed management that he would like to attend school in order to improve his promotion opportunities. He was not allowed to alter his schedule to accommodate his classes, but two white co-workers were given schedule adjustments by management to attend classes while African-American operators were required to cover their shifts.

At his request, Patrick Jackson was tested by Mitchell for the promotion, but was never provided with the results of those tests. In response to his inquiry regarding his results, Mitchell stated, "Patrick, let me tell you, you're too dumb. You can't even read. You can't even write." Patrick Jackson testified that Volosky took the test in Martin's presence and later become an operator.

On February 7, 2001, Patrick Jackson again attempted to be promoted to operator. He was certified by Civil Service and interviewed for the position, but was denied the promotion because he did not have enough experience. He noted, however, that the job only required one year of experience; he had four years of experience. When asked during his deposition whether he thought that he had been discriminated against because of his race, Patrick Jackson responded:

They're not discriminating because I'm black, no, they're not. What -- what Mr. Jackson is doing and I feel -- I strongly believe this, and I know this for a fact with this Boyd incident, okay? Mr. Jackson hired Mr. Boyd. Mr. Boyd's sister runs Grandville Academy School. So what Mr. Jackson did -- Mr. Jackson had Mr. Boyd's sister hire his sister at the school.

So in the meantime, Mr. Jackson asked -- Mr. Boyd -- Mr. Boyd's sister asked Mr. Jackson can you give my brother a job. So low and behold, he's down the filtration plant.

Isabel completed twelfth grade and was promoted to operator in 1995. Isabel told Mitchell that he wanted to be an operator when the position was posted. He did not get that job, but after going to the union president, Isabel was given the chance to become an assistant operator. He remained in this position for approximately a year before he was promoted to operator. Isabel, like the other plaintiffs, was required to take a non-Civil Service exam. Moreover, he noted that Volosky was able to take the test in Martin's office with Martin providing the answers to him.

Isabel claimed that African-American employees were not allowed to park in assigned parking spots, but other employees were allowed assigned spots. Additionally, Caucasian employees were free to move in and out of the computer room, but African-American employees were not allowed to do so.

Parker claimed that Lind verbally abused him on numerous occasions. Lind would tell Parker, "You gonna to do it my fucking way or not," and he would often curse at Parker. Parker testified that these comments were directed to plaintiffs. At one time, Mitchell told Parker, "You people are all the same," which Parker interpreted to be a racial slur against African-American employees. Isabel testified that Lind also would use the phrase, "you people," in reference to African-American employees, and when no one was around, Martin would greet him by raising his hand at a forty-degree angle like a Nazi salute.

Parker testified that if you are African-American, then you are incompetent in Mitchell's eyes. Patrick Jackson testified that Martin would call Jackson a dumb ass and Martin would ask him how it felt to be black after stating that blacks are dumb. However, Jackson admitted that Martin would call everyone "dumb ass." Martin told Wilson that he would never be anything other than a laborer and said, "You old fuck, you need to die." Wilson was also called an "old mother fucker," and one of the defendants threw a calendar in Wilson's face. Lind also called Wilson an "ugly fuck." Patrick Jackson testified that Lind would say, "Kill them all. I'll kill them all," or "Fuck 'em. Fuck 'em all." Patrick Jackson also testified that Martin would call him a "black M-F," and tell him to "suck his dick." Lind and Martin also called Patrick Jackson a "nigger." Goss testified that he was never verbally abused, but Lind did tell Goss to "[g]et the fuck out of my office."

Plaintiffs highlighted one incident in 1999, in which a rubber monkey puppet was placed in the operations room with a piece of paper on its chest stating, "Where are you Andrew Palmer?" Parker interpreted this puppet as a racial slur. There was another incident in 1999, in which a brown hangman mannequin was made out of wire and was attached to a hanging rope in the operations room. Plaintiffs noted that although management saw both of these items, they did not remove them.

Parker recounted that on several occasions he heard Lind say that he was going to a lynching or a hanging when he was on his way to a disciplinary hearing for African-American employees. Patrick Jackson alleged that in 1999, Lind had a picture of a hangman's gallows on his door, and he heard Lind say, "I'm going to a lynching" when Lind was on his way to a hearing for Wilson. Wilson and Isabel both heard Lind say something to the same effect.

Isabel certified that the levels of abuse increased after the lawsuit was filed. Wilson recalled an incident with Martin that occurred after the lawsuit was filed. He related the incident as follows:

Well, I was sitting in the kitchen. [Martin] comes in, because I was on floor maintenance at that time, that's cleaning up inside the plant, and he opened the door and said, 'Russell, I want to see you. I got something for you to do.' So when I got up, walked to the door, he got to the panel, he dropped his pants and his underwears. "I want you to do this." And I was raged.

Wilson testified that Martin meant the gesture to mean kiss my ass. Patrick Jackson and Albin McBride saw this incident. Patrick Jackson testified that Martin told Russell to kiss his "white ass" as he pulled down his pants. Wilson and Patrick Jackson told Eric Jackson, but nothing was done about it.

Wilson stated that another incident occurred after the lawsuit was filed. He heard Lind comment, "Kill them all" in reference to plaintiffs. Patrick Jackson described a similar incident when he overheard Lind telling a Caucasian management employee, "If I were in charge, I'd kill them all" while looking at Patrick Jackson and another African-American employee.

After the lawsuit was filed, Wilson was involved in a racially-themed discussion with co-worker Michael Gainey. As a result of that discussion, Wilson received a day off while Gainey was not punished at all. Gainey said in reference to Wilson, "Yeah, that old mother-fucker there. If we get rid of him, we could smoke cigarettes and cook." Then Gainey said, "You looking at the next head nigger in charge" to which Wilson responded, "Yes, you're the next house nigger here."

Patrick Jackson claimed that he suffered retaliation when he was disciplined for not wearing a complete uniform. No action was taken against a Caucasian employee who appeared without a uniform. Patrick Jackson testified that defendants were constantly tagging, bugging, and harassing him, and he was constantly being "written up." These write-ups became more aggressive after the lawsuit was filed. Isabel corroborated Patrick Jackson's testimony stating that after the lawsuit was filed, Mitchell went around looking for every little thing that Isabel did wrong, but that Mitchell was not overly critical of his Caucasian co-workers or African-American co-workers that had not filed the lawsuit.

Patrick Jackson alleged that he suffered retaliation when he was fired in 2005. The official reason for his termination was excessive absenteeism, but many of the days that Patrick Jackson was marked as absent were days in which he was only late. Jackson noted that the regulations allow a ten-minute grace period and you are not to be marked as late or absent on such occasions. Moreover, the alleged absenteeism occurred in 2004, not 2005. Jackson was terminated while he was suspended after an incident in which another employee pulled a knife on him.

Each plaintiff claims that a hangman's noose was drawn on a diagram of the Plant that hangs in one of the hallways. There was conflicting testimony as to when the drawing appeared. Parker claimed that the noose appeared after the complaint was filed. He saw it shortly after the first news article on the case appeared in The Trenton Times in 2000. Isabel showed it to him. Parker considered it a sign of hatred. He thought the noose was meant to illustrate, "[h]ang blacks." Parker stated, "It's nothing but retaliation, intimidation." Goss stated that he saw the noose in 1994, prior to the start of the lawsuit, and he complained about the noose to Lind. In response, Lind told Goss not to worry about it.

Wilson first became aware of the noose after the lawsuit was filed, but noted that it was possible that it was there pre-complaint. Wilson felt that the noose was meant to intimidate them. Wilson told Mayor Palmer about the illustration, and Palmer said he would take care of it. Wilson and Parker also showed the noose to Martin and the Director of Public Works at the time.

Patrick Jackson testified that the drawing was there prior to September 11, 2001, but he did not know when it appeared. Isabel first became aware of the noose drawing in 2002, and he stated that he would have seen it before 2002 if it had been there. Later Isabel clarified that he noticed it approximately a month after the lawsuit was filed. He told Lind about the noose a few days after he saw it.

Finally, plaintiffs claim that a cross made out of duct tape was displayed on a piece of metal in one of the main engineering rooms for several months. The cross was approximately twelve to fifteen inches long. Some plaintiffs claim that it was not there prior to the lawsuit, while others state that it was there prior to the lawsuit. Goss considered it threatening, demeaning and representative of lynching African-Americans.

Plaintiffs filed a four count complaint on April 24, 2000. Count one alleged that plaintiffs were continuously and systematically discriminated against on the basis of their race and, as a result, a disproportionate number of Caucasian employees were promoted to better-paying positions. Count two alleged that as a result of disparate treatment, African-American employees were willfully prevented from gaining the education necessary to secure certain promotions. Count three alleged that racially discriminatory comments and conduct created a hostile work environment. Count four alleged that defendants Cacallori, Mitchell, Lind, and Martin aided and abetted the discriminatory conduct of defendant employer.

In their July 3, 2002 amended complaint, plaintiffs alleged that defendants retaliated against them after the lawsuit was filed (count five), and that defendants intentionally destroyed evidence, specifically the duct tape cross and the hangman's noose (count six).

Following discovery, the City and the individual defendants filed motions for summary judgment. In his May 12, 2004 oral opinion, the motion judge found no genuine issues of material fact as to plaintiffs' discrimination and hostile environment claims. He granted summary judgment to defendants on counts one through four.

In addressing count one, the judge stated that this case presented

a number of idiosyncratic situations involving five individuals as opposed to a pattern of behavior that would deal with not only minorities, but similarly situated minorities working for Trenton Water Works. Each of these individuals is unique. They have different jobs, they have different backgrounds, they have different abilities, and they claim discrimination, but I do not perceive . . . a common thread.

A pattern was not developed and plaintiffs were dealt with as individuals, not as members of a protected class. The judge found that each plaintiff simply happened to be a member of a protected class.

In addressing count two, the judge noted that testing for promotions at the Plant was administered by the New Jersey Department of Personnel (DOP). He accepted the City's denial of the informal on-site testing. The judge found that the City had a policy that allowed schedule adjustments for operators/repairers and implicitly found that the policy was non-discriminatory.

In granting summary judgment to defendants on count three, the judge found the alleged discriminatory incidents to be "isolated" and not "pervasive" or "continuous." The court stated:

there were individual circumstances from time to time that were alleged, anecdotal in nature with regard to matters that might be perceived as a hostile work environment, but the[y] were not pervasive, they were not continuous; they were rather distant in time and few in number, certainly not enough to generate a hostile work environment claim.

In granting summary judgment to the individual defendants on count four, the judge stated:

Count 4 follows Count 3. This is no news to anybody in this courtroom, and it takes and repeats and alleges all of the allegations preceding it and it then alleges aiding and abetting, but it's aiding and abetting Trenton in activities that this Court finds do not amount to hostile work or any other allegations contained in Counts 1 or 2. Consequently this Court does grant summary judgment as to Count 4.

Following further discovery, defendants filed a motion for summary judgment addressing the retaliation (count five) and spoliation (count six) claims of the amended complaint. The motion judge found that the retaliatory actions cited by plaintiffs did not rise to the level of adverse employment action. In connection to the verbal abuse suffered by plaintiffs, the judge stated, "there is nevertheless a certain level of -- even in our case law, of insult that is permitted, that more thick skin is invited to be worn, I guess, by people, and this is very much borderline." In determining whether the actions were adverse, the judge took the workplace environment into account.

He also found that plaintiffs failed to demonstrate a causal link between the alleged retaliatory actions complained of and the filing of the complaint or whether the acts occurred before or after the complaint.

On appeal, plaintiffs argue that the judge who decided the first summary judgment motion misapplied the summary judgment standard and did not apply the governing law to the claims asserted. We agree.

The standard governing summary judgment motions is well-known. R. 4:46-2. On appeal, we apply the same standard as the motion judge. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must determine whether there are any genuine issues of material fact and , if not, whether the moving party is entitled to judgment as a matter of law. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Under the principles governing review of summary judgment motions, a judge must do more than simply identify disputed fact issues. Summary judgment may be granted even when factual disputes exist if those disputes are not material. Brill, supra, 142 N.J. at 529-30. Moreover, the motion judge must view the facts and all reasonable inferences that can be drawn from those facts in favor of the non-moving party. R. 4:46-2. The motion judge cannot weigh the credibility of the evidence. Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, supra, 142 N.J. at 540. "Unsubstantiated inferences and feelings" are not sufficient to support or defeat a motion for summary judgment. Oakley v. Wianecki, 345 N.J. Super. 194, 201 (App. Div. 2001).

Our review of the record convinces us that these principles were not applied to the first summary judgment motion. The judge did not accept the facts as alleged by plaintiffs. He accepted as true blanket denials offered by defendants. For example, plaintiffs asserted that tests were administered to them by the Plant supervisors when plaintiffs desired a promotion. They also asserted that non-African-American employees were coached on similar tests. Defendants denied that any tests were administered. In the context of a summary judgment motion, the judge was required to accept the allegation as true; he did not do so. Moreover, we are satisfied that the fact of preliminary testing was legally significant to the claims asserted by plaintiffs.

In counts one and two of the complaint, plaintiffs assert a race discrimination claim based on failure to promote due to plaintiffs' race and disparate treatment. The disparate treatment claim relies on two main patterns or practices: promotion testing and schedule changes.

The New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, was enacted in 1945 in recognition of New Jersey's clear public policy against discrimination in the workplace. Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 370 (2007). Under the LAD, New Jersey has adopted the tests for a prima facie disparate treatment case that were promulgated to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e to e-17. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 81 (1978); see Carmona, supra, 189 N.J. at 370 (noting that New Jersey has frequently looked to case law under Title VII for guidance in developing standards to govern the resolution of LAD claims). The starting point is the formula announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d 668, 677-80 (1973); Peper, supra, 77 N.J. at 83. The McDonnell Douglas test is to be adjusted when it is inapplicable to the specific factual situation that arises in a case. Peper, supra, 77 N.J. at 83-84.

In a case asserting failure to promote, a plaintiff must demonstrate that (1) he is a member of a protected class; (2) he applied and was qualified for a position for which the employer was seeking applicants; (3) he was rejected despite adequate qualifications; and (4) after his rejection, the position was awarded to someone with equivalent or lesser qualifications who was not a member of the claimant's protected class. Pepe v. Rival Co., 85 F. Supp. 2d 349, 365 (D.N.J. 1999), aff'd, 254 F.3d 1078 (3d Cir. 2001); Greenburg v. Camden County Vocational Technical Sch., 310 N.J. Super. 189, 198 (App. Div. 1998). "The evidentiary burden at the prima facie stage is 'rather modest: it is to demonstrate to the court that plaintiff's factual scenario is compatible with discriminatory intent--i.e., that discrimination could be a reason for the employer's action.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 92 F.3d 497, 508 (3d Cir. 1996)).

If the plaintiff is successful in establishing a prima facie case, the burden shifts to the employer, who may articulate some legitimate, nondiscriminatory reason for the action. Erickson v. March & McLennan Co., 117 N.J. 539, 550 (1990). The employee then has the opportunity to show that the articulated reason was not the true reason for the action, but was really a pretext for the discrimination. Ibid.

The Supreme Court of the United States has also held that employment benefits may not be doled out in a discriminatory manner. Hishon v. King & Spalding, 467 U.S. 69, 75-76, 104 S. Ct. 2229, 2233-34, 81 L. Ed. 2d 59, 66-67 (1984). Thus, in determining whether an employment benefit, like receiving schedule changes to accommodate work-related education, was doled out in a discriminatory manner, a form of the McDonnell Douglas test is applied. However, how the plaintiff creates an inference of discrimination is different from the normal McDonnell Douglas test. 1-8 Lex K. Larson, Employment Discrimination 8.08[8]. The plaintiff's presentation will almost always begin with comparing his treatment with that of a similarly situated employee. Ibid. "That being the case, to create an inference of discrimination, it would seem to be sufficient if a plaintiff shows that similarly situated employees not in his protected class received more favorable treatment vis a vis the particular benefit or other term or condition." Ibid.

Applying this standard to the facts and all reasonable inferences that may be drawn from these facts, defendants' motion for summary judgment should have been denied. It is of no consequence that each plaintiff eventually obtained a promotion. The gravamen of their complaint is that each was qualified for a promotion and each was denied promotion and opportunities to obtain promotion due to their race. Moreover, they advanced evidence that other employees of similar educational and work experience, who were not African-American, received promotions sooner than them. Other employees also received assistance in the nature of schedule changes denied to them.

Furthermore, the fact that plaintiffs occupy jobs and sought jobs subject to the civil service system administered by the DOP is irrelevant. Plaintiffs' complaint centers on actions designed to frustrate their access to the legitimate promotional system.

Plaintiffs also established a prima facie case that the schedule change policy was discriminatory. A factfinder may reasonably believe plaintiffs over the testimony of defendants in determining whether a schedule change policy existed and whether its purpose was to discriminate against African-American employees. Similarly, plaintiffs established sufficient facts to defeat summary judgment on their hostile work environment claim. In granting summary judgment to defendants on count three, the judge found the alleged discriminatory incidents to be "isolated" and not "pervasive" or "continuous."

In order to establish a cause of action under the LAD for hostile work environment, plaintiffs must show that the complained-of conduct (1) would not have occurred but for the employee's protected status, and (2) was severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993). In order to determine whether the conduct was "severe or pervasive," the court must consider whether a reasonable person would believe that the conditions of employment have been altered and that the working environment is hostile. Id. at 604. Therefore, the second, third, and fourth prongs of the hostile environment test are interrelated. Ibid.

In this case the incidents identified by plaintiffs were the appearance of a rubber monkey puppet with a sign stating, "Where are you Andrew Palmer?", a hangman mannequin made out of wire that was attached to a hanging rope, a picture of a hangman's gallows hanging outside of Lind's office, and various curses and racially derogatory comments made by defendants. Defendants deny that these incidents occurred or that they were aware of them.

Plaintiffs satisfied the first prong of the hostile work environment test because hanging brown mannequins and the monkey puppet are emblematic of racial bias and animosity. Moreover, plaintiffs presented evidence that Lind had a hangman's gallows on his door, and he would refer to disciplinary hearings as lynchings or hangings. He also stated that he would "kill them all." It would not be unreasonable for a reasonable African-American employee to take these statements and actions as threats. See Heitzman v. Monmouth County, 321 N.J. Super. 133, 148 (App. Div. 1999) (finding anti-Semitic comments did not constitute severe and pervasive conduct, in part, because they did not involve any physical threat or humiliation). Plaintiffs also asserted that defendants made repeated negative comments about plaintiffs' intelligence and attributed their alleged low intelligence to their race. They were also referred to as "niggers" and "mother-fuckers." Plaintiffs also identified more than a single incident of harassing conduct. Viewed cumulatively, a reasonable factfinder could find that the events created a severe and pervasive environment hostile to plaintiffs due to their race.

When evaluating prongs three and four, the court is to adopt an objective standard, so as to exclude the "'idiosyncratic response of a hypersensitive plaintiff[.]'" Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 26 (2002) (quoting Lehmann, supra, 132 N.J. at 614). In this case, the motion judge did not do so. Measured objectively, summary judgment should not have been granted on this claim.

We now turn to whether plaintiffs presented sufficient evidence to withstand summary judgment as to count four. In this count, plaintiffs allege that the individual defendants aided and abetted the discriminatory acts of the employer, the City. We hold that plaintiffs presented sufficient evidence to require denial of defendants' summary judgment motion on this claim.

N.J.S.A. 10:5-12a prohibits unlawful employment practices and unlawful discrimination by an employer. It is also unlawful for any person, whether an employer or an employee to "aid, abet, incite, compel or coerce" any act prohibited by the LAD. N.J.S.A. 10:5-12e. Such conduct may result in personal liability.

In Tarr v. Ciasulli, 181 N.J. 70, 84 (2004), the Supreme Court adopted the factors identified in Hurley v. Atlantic City Police Department, 174 F.3d 95, 127 (3d Cir. 1999), and the Restatement (Second) of Torts 876(b) (1979) for imposing personal liability for discrimination on a supervisor. The factors to determine "substantial assistance" are: (1) the nature of the act encouraged, (2) the amount of assistance given by the supervisor, (3) the presence of the supervisor at the time of the harassment or other discriminatory conduct, (4) the relationship between the supervisor and other employees, and (5) the state of mind of the supervisor. Tarr, supra, 181 N.J. at 84. In Tarr, the Court held that the evidence was insufficient to support personal liability of the owner of the auto franchise because there was no evidence that he encouraged or assisted the discriminatory conduct or that he was ever present when the prohibited conduct occurred. Id. at 85.

Here, each of the individual defendants were departmental or Plant supervisors. Plaintiffs submitted evidence that the individual defendants were present at the time of various events, took no action to halt the behavior, and in most instances actively participated in the conduct cited as discriminatory. Having held that summary judgment was improperly granted on counts one through three, it follows that summary judgment should not have been granted on count four.

Summary judgment on counts five and six of the amended complaint was entered by another judge. In granting summary judgment on the retaliation claim, the judge relied heavily on the fact that plaintiffs could not clearly identify that the asserted retaliatory conduct occurred after the complaint was filed or that any defendant was responsible for the presence of the cross or the noose in the workplace.

N.J.S.A. 10:5-12d prohibits retaliation against any person who has sought redress for discriminatory action. A prima facie case of retaliation is established when a plaintiff presents evidence that he has engaged in a protected activity known by the employer, that the original complaint was made reasonably and in good faith, that the employer unlawfully retaliated following the complaint, and there is a causal link between the protected activity and the adverse action. Carmona, supra, 189 N.J. at 373; Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995). Here, it is undisputed that the complaint filed by plaintiffs is a protected activity. The summary judgment decision turned on when the retaliatory conduct occurred and to a lesser extent, whether the conduct could be considered retaliatory.

It was not the function of the judge to resolve the question of when the alleged retaliatory acts occurred. This was clearly a disputed question of fact. The more significant question was whether the various acts of harassment can be considered retaliatory. That inquiry, in turn, requires consideration of whether the alleged conduct led to an adverse employment action. Here, again we hold that the cumulative acts, if they occurred after the filing of the complaint or if they escalated after the filing of the complaint, created a jury question that precluded entry of summary judgment.

It is now firmly established that an adverse employment action can be something less than a termination, demotion or salary reduction. A withdrawal of benefits formerly provided to an employee may, in some circumstances, constitute an adverse employment action. Burlington No. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-70, 126 S. Ct. 2405, 2414-16, 165 L. Ed. 2d 345, 359-61 (2006); Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564-65 (App. Div. 2002), aff'd as modified, 179 N.J. 425 (2004); Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 419 (App. Div. 2001), aff'd in part, rev'd in part, 174 N.J. 1 (2002). See Maimone v. City of Atl. City, 188 N.J. 221, 235-37 (2006) (construing the requirement of an adverse employment action in CEPA); Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 433-36 (App. Div. 2005) (same). A combination of relatively minor instances of negative behavior directed to an employee may reveal a pattern of retaliatory behavior. Green v. Jersey City Bd. of Educ., 177 N.J. 434, 438-40 (2003).

In Maimone, supra, the plaintiff's transfer from one position to another that resulted in a reduction in compensation and a loss of other benefits was sufficient to establish an adverse employment action under CEPA. 188 N.J. at 236-37. In Nardello, supra, the claimed denial of permission to obtain firearms instructor training to allow continued assignment to a SWAT team, the claimed coerced resignation as leader and member of a SWAT team, the claimed refusal by supervisors to allow the plaintiff to work on crime prevention programs, and the assignment to jobs not commensurate with the plaintiff's senior rank collectively raised a jury question of the existence of retaliatory conduct. 377 N.J. Super. at 435-36. Finally, in Burlington Northern, supra, the Court noted that exclusion of an employee from a weekly training lunch that contributes to advancement may be sufficient to establish a prima facie case of retaliatory conduct. 548 U.S. at 69, 126 S. Ct. at 2415-16, 165 L. Ed. 2d at 360. Here, plaintiffs alleged they were treated in a manner and assigned job functions that were not commensurate with their years of service and experience.

In certain situations retaliatory harassment may rise to the level of adverse employment action, but generally harassment alone will not constitute adverse employment action. Cokus v. Bristol Meyers Squibb Co., 362 N.J. Super. 366, 379 (Law Div. 2002), aff'd, 362 N.J. Super. 245 (App. Div.), certif. denied, 178 N.J. 32 (2003). In determining whether harassment constitutes an adverse employment action the trial court must consider the nature of the harassment, the closeness of the working relationship, whether the employee resorted to internal grievance procedures, the responsiveness of the employer to the employee's complaints, and all other relevant circumstances. Id. at 379-80. The harassment must be "'sufficiently severe or pervasive to have altered plaintiff's conditions of employment in an important and material manner.'" El-Sioufi v. St. Peter's Univ., 382 N.J. Super. 145, 176 (App. Div. 2005) (quoting Cokus, supra, 362 N.J. Super. at 245-46).

Here, plaintiffs submitted sufficient evidence to raise genuine issues of fact as to whether the actions taken after the filing of the complaint were different in nature or quantity and whether the conduct was severe or pervasive and altered the conditions of plaintiffs' employment.

Finally, plaintiffs submitted sufficient evidence to establish that two pieces of material evidence, the cross and the noose, no longer existed. Having held that summary judgment should not have been entered on counts one through five, it follows that summary judgment should not have been entered to dismiss the spoliation of evidence claim in count six of the amended complaint. There was a clear legal obligation to retain the evidence, it is material to the claims asserted by plaintiffs, and its absence may undercut the ability of plaintiffs to support their claims. Jerista v. Murray, 185 N.J. 175, 201-02 (2005); Rosenblit v. Zimmerman, 166 N.J. 391, 406-07 (2001).

In sum, the June 2, 2004 and January 19, 2007 orders granting summary judgment and dismissing plaintiffs' complaint in its entirety are reversed.

Reversed.

During the course of the litigation, Jackson took a voluntary demotion because the stress of the job was too overwhelming.

This was probably a reference to the mayor of Trenton, Douglas Palmer, and Andrew Bobbett. Bobbett worked for Palmer and then worked at the Plant for a few months when there were no jobs available at City Hall. Bobbett left the Plant after he complained to Palmer about the way he was being treated.

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14.

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A-3647-06T2

July 31, 2008