LETTER OPINION
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
January 27, 2010
Mark Mulick, Esq. Mark Mulick, Esq., P.A. 50 Church Street Montclair, N.J. 07042
Richard P. Flaum, Esq DiFrancesco, Bateman, Coley,Yospin Kunzman, Davis & Lehrer, P.C. 15 Mountain Boulevard Warren, N.J. 07059
Sharon H. Moore, Esq. Gebhardt & Kiefer, P.C. 1318 Route 31, P.O. Box 4001 Clinton, N.J. 08809-4001
Re: Walter Brooks and Peter Davis v. Twp. of Springfield Police Dept. Docket No. UNN-L-137-08
Dear Counsel:
This matter comes before the court on a motion for summary judgment as to
Plaintiff Walter Brooks brought by Sharon H. Moore, Esq. of Gebhardt & Kiefer, P. C.
on behalf of Defendant Township of Springfield Police Department, ("Police
Department"), as to the claims remaining after the entry of an Order granting Partial
Summary Judgment as to the Defendant Police Department and granting Summary
Judgment on all claims as to Defendant Chisholm on August 26, 2009.
Bruce H. Bergen, Esq. of Krevsky, Silver & Bergen, filed a cross-motion for
summary judgment on behalf of the Police Department on the remaining uninsured
claims of plaintiff Brooks as to intentional infliction of emotional distress and punitive
damages, essentially joining in the motion filed by Ms. Moore. On January 8, 2010, oral
argument was conducted, and Richard P. Flaum, Esq. of DiFrancesco, Bateman, Coley
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Yospin, Kunzman, Davis & Lehrer, P.C. appeared on behalf of the Police Department on
the uninsured claims pursuant to a Substitution of Attorney filed earlier that morning,
The motions are opposed by counsel for Plaintiff Brooks, Mark Mulick, Esq. of
Mark Mulick, Esq., P.A. Following the decision of the New Jersey Supreme Court in Roa
v. Roa, N.J. (2010), counsel submitted additional letter memoranda which have
been considered.
For the reasons set forth below, the Defendant's motions have been granted as to
Counts One and Two of the Second Amended Complaint and denied without prejudice as
to Count Three.
I. Findings of Fact.
The following findings of fact that were made in the Letter Opinion which
accompanied the Order of Partial Summary Judgment entered on August 26, 2009 are
included here because they are relevant to the remaining claims brought by the Plaintiff.
In 1996, Walter Brooks, a plaintiff in this matter and an African-American, filed a
lawsuit against the Township of Springfield, Chief William Chisholm, and other
defendants, in which he contended that he had been unfairly disciplined based on his
race.
On August 3, 1999, Walter Brooks signed a Stipulation of Settlement in the
matter which contained a provision that he would be assigned to the Detective Bureau for
a minimum of twelve months and that:
At any time subsequent thereto, the Plaintiff will be subject to reassignment dependent upon Plaintiffs performance of the duties of the new position and the staffing and other needs of the Springfield Police Department. Such reassignment shall be in writing, and will be without recourse, and shall be non-appealable, non-grievable, and
not reviewable in a Court of Law.
After serving in the Detective Bureau for approximately fourteen months, Walter
Brooks was reassigned back to patrol in October of 2000. He did not challenge the
reassignment contemporaneously.
On October 1, 2007, Walter Brooks filed the complaint in this action alleging that
he had been discriminated against by the Township of Springfield and Chief Chisholm
under the New Jersey Law Against Discrimination, ("LAD"). N.J.S.A. 10:5-1 et seq. Mr.
Brooks was subsequently permitted by the court to amend his complaint twice. His
claims for violation of the LAD were that he was subjected by the defendants to a hostile
work environment, disparate treatment, and retaliation.
In the Order entered on August 26, 2009, this Court rejected the claims by Mr.
Brooks that he was subjected to a hostile work environment on a continual basis before
and after September 30, 2005. As a result, this Court found that any allegations of a
hostile work environment prior to that date were barred by the statute of limitations. This
Court further rejected Mr. Brooks' claim that he was subjected to a hostile working
environment based on his race and in retaliation for his prior action against the Township
within the two years prior to the filing of his Complaint on October 1, 2007, and
dismissed all of his claims under the LAD, except his claim that his transfer out of the
Detective Bureau was retaliatory in violation of the LAD and the Third Count of the
Second Amended Complaint which alleged retaliatory action in violation of the LAD
after the Complaint was filed.
In the Letter Opinion which accompanied the Order of August 26, 2009, this Court
held that the transfer should be considered a discrete act by the Defendant employer, and
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that the statute of limitations therefore began to run from the date of the transfer in
October of 2000. However, because of the paucity of the record related to the Plaintiff s
claim that equitable tolling and the discovery rule should apply, this Court provided for a
period of 60 days of further discovery related solely to that issue, after which motions
related to the statute of limitations could be filed.
Counsel for the Defendant Police Department has advised the court that no
additional discovery has been conducted during the period allotted. However, Mr. Brooks
has submitted a Certification in opposition to this Motion dated December 3, 2009, in
which he states that the attorney who represented him during his first civil rights lawsuit
against the Township never informed him that the provision of the Stipulation of
Settlement concerning the non-reviewability of his transfer from the Detective Bureau
was unenforceable. Rather, the attorney advised him that it was enforceable, and that if
he signed the agreement, he would have no recourse if he were transferred from the
Detective Bureau after the minimum twelve month period. The attorney also advised Mr.
Brooks that the Township would not settle the case unless he agreed to that language.
Mr. Brooks has further certified that a month or two after entering into the
Stipulation of Settlement, he attempted to contact the prior attorney about another matter,
but the attorney never returned his calls, and although Mr. Brooks attempted to retrieve
his file, he was not able to do so. Mr. Brooks also certified that because he believed that
the language of the Stipulation clearly established that he had no recourse of any kind if
he were transferred out of the Detective Bureau after the minimum period, he did not
seek the opinion of any other attorney until he contacted his present attorney about a new
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claim of a hostile work environment, prior to the filing of this Complaint on October 1,
2007.
In his Complaint, Mr. Brooks alleged that the day that he received the letter
transferring him back to patrol, Chief Chisholm took him to the scene of a Halloween
display in the Township that included the body of an African-American man hanging
from a tree. In his Certification of December 3, 2009 in opposition to this motion, Mr.
Brooks added that Chief Chisholm orally notified him of his transfer out of the Detective
Bureau when the Chief drove him to this scene, and that Mr. Brooks understood the
Chiefs action to be a threat to his life.
Police reports prepared by the Plaintiff and others reveal that this incident took
place on October 4, 2000, and involved a Halloween display which included a dummy
that had a dark bag for a head. The Halloween display was brought to the attention of the
Springfield Police Department by Judy Lucas of the Newark Star Ledger. Officer
Brooks' supplementary investigation report indicates that Ms. Lucas spoke to him, that he
advised Chief Chisholm of her concern, and then he and the Chief went to the site to view
the display. The Department's bias officer also responded to the scene; however, by that
time, the homeowner had already removed the dummy, having learned from Ms. Lucas
that some people found it offensive. Mr. Brooks did not make any contemporaneous
complaint about the Chiefs action in requesting that the Plaintiff accompany him to the
scene.
In support of the Plaintiffs claim that his transfer out of the Detective Bureau was
in retaliation for bringing the prior lawsuit against the Township, the Plaintiff alleges that
the Defendant Police Department violated the Stipulation of Settlement by transferring
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him out of the Detective Bureau to patrol, despite his satisfactory performance, and by
assigning Captain Vernon Peterson, who was the focus of the Plaintiff's first lawsuit, to
supervise him. Mr. Brooks contends that while serving in the Detective Bureau he was
required to share a small office, and was not given a telephone, a pager, or a walkie-
talkie. He further contends that despite outstanding performance evaluations as a
detective, he was transferred out of the Detective Bureau to patrol because of a lack of
manpower. However, one week after his transfer out of the Detective Bureau, the
Plaintiff's position was filled by an officer who had previously served in the patrol
division. Officer Brooks contends that normally police officers are transferred to the
Detective Bureau for a lot longer than one year, and that some transfers to that bureau
have been for as long as six years.
Richard Sheola, the former Township Administrator of the Township of
Springfield during 2000, has submitted a Certification in support of the Defendant's
motion, in which he stated that prior to the settlement reached with the Plaintiff, the
Detective Bureau was fully staffed with five officers and a Captain. However, in order to
accommodate the terms of the Settlement Agreement, the Detective Bureau was
increased in size to include six officers plus the Captain, and the patrol force was reduced
by one officer. Administrator Sheola has certified that the decision as to whether the
Plaintiff would remain in the Detective Bureau after the minimum period of twelve
months was his to make, and was to be based on staffing and similar considerations. Mr.
Sheola certified that in September of 2000, after the twelve month minimum period had
been completed, Chief Chisholm approached him and indicated that the Detective Bureau
was overstaffed, and that he needed experienced patrol officers because there had been
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some retirements, and several new officers had been added in 2000 who were
inexperienced and required supervision and assistance from more experienced officers
when out on the road.
Administrator Sheola further certified that since the Plaintiff was an experienced
patrol officer, and since it has always been Mr. Sheola's philosophy that different patrol
officers should be rotated through the Detective Bureau as the experience of learning how
crimes are solved makes them better patrol officers, he discussed the situation with the
Chief and determined that Officer Brooks would be the best candidate to transfer to patrol
at that time based entirely on staffing needs, and not because of the Plaintiff's race or his
having previously filed a lawsuit against the Township. Mr. Sheola further points out that
as a result of the transfer, the Detective Bureau returned to its former size of five officers
plus the Captain, and that the Chief has continued to rotate patrol officers through the
Detective Bureau and then back to patrol.
Clearly, there is a material dispute of fact with respect to the reason why the
Plaintiff was transferred out of the Detective Bureau back to patrol after the minimum
twelve month period included in the Stipulation of Settlement.
II. Legal Discussion.
A. The Plaintiff Has Established a Prima Facie Case That His Transfer Out of the Detective Bureau in October of 2000 Was Retaliatory Under the LAD.
In the Letter Opinion which accompanied the Order of August 26, 2009, this
Court has already found that there is no dispute in this case that Officer Brooks filed a
complaint for racial discrimination against the Township of Springfield which was settled
with the provision that he would be assigned to the Detective Bureau, but that he could be
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reassigned out of the Bureau under the conditions described in the Stipulation of
Settlement.
To establish a prima facie case of retaliation under the LAD, a plaintiff must show
that he was engaged in a protected activity the employer knew about, he was subjected to
a subsequent adverse employment action, and there was a causal connection between the
two. Romano v. Brown & Williamson Tobacco Corp., 284 N.J.Super. 543, 548-49 (App.
Div. 1995).
This Court found in the previous Letter Opinion that the Plaintiff had a protected
status under the LAD as a result of filing and settling his prior complaint against this
same Township based on racial discrimination, and that, giving the Plaintiff the benefit of
all of the favorable inferences of his allegations with respect to the transfer for purposes
of summary judgment under Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520,
535-536 (1995), the nexus between the settlement and the Plaintiff's allegations of his
treatment in the Detective Bureau following the settlement and transfer out of that Bureau
shortly after the minimum period of assignment with an associated reduction in pay, as
well as the Chief's action toward him with respect to the Halloween display on the date
that the Plaintiff was notified of the transfer, was sufficient to establish for purposes of
summary judgment that these actions would not have occurred but for his protected status
under the LAD.
However, based on the analysis of the Appellate Division in Shepherd v.
Hunterdon Developmental Center, 336 N.J.Super. 395, 419-420 (App. Div. 2001), aff'd
in relevant part, 174 N.J. 1 (2002), this Court also found that the Plaintiffs claim of
retaliatory transfer should be treated as a discrete action by the employer, and that the
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statute of limitations therefore began to run from the time of the transfer in October of
2000. In its recent opinion in the Roa case, the New Jersey Supreme Court noted that in
its earlier decision in the Shepherd case, it had adopted the analytical framework used by
the United States Supreme Court in National Railroad Passenger Corp. v. Morgan, 536
U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), to distinguish between a discrete act
of discrimination and a continuing violation under Title VII of the Federal Civil Rights
Act of 1964 in analyzing a statute of limitations issue under the NJLAD, and emphasized
that, "Morgan established a "bright-line" rule that "individually actionable allegations
cannot be aggregated." Roa v. Roa, supra, N.J. , (slip op. at 11).
Under the standard for the establishment of a prima facie case of retaliation based
upon a discrete action by an employer in violation of the LAD, the Plaintiff's claim of
retaliatory transfer out of the Detective Bureau with the associated loss in pay was an
adverse employment action. There is also a nexus between the settlement and the transfer
out of that Bureau shortly after the minimum period of assignment, taking into account
the behavior of the Chief in taking the Plaintiff to the scene of the Halloween display and
telling the Plaintiff in the course of the trip that he was being transferred out of the
Detective Bureau, and there is a material dispute as to the Defendant's stated reason for
making the transfer based upon staffing needs of the Department, that provides sufficient
proof of a causal connection between the Plaintiff s protected status and the adverse
employment action for purposes of defeating a motion for summary judgment with
respect to the Plaintiff's claim that the transfer was retaliatory in violation of the LAD.
However, the statute of limitations for claims arising under the LAD is two years.
Montell v. Hayes, 133 N.J. 282, 292 (1993). Because the Complaint in this matter was
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not filed until October 1, 2007, the Plaintiff's claim is barred by the statute of limitations
unless the doctrines of equitable tolling or the discovery rule can be applied in the
circumstances of this case.
B. The Plaintiff's Argument that the Doctrine of Equitable Tolling Should Be Applied Under the Circumstances of This Case.
The doctrine of equitable tolling assumes the accrual of the action but intercepts
and delays the bar of the statute of limitations because the plaintiff lacked vital
information which was withheld by a defendant. Villalobos v. Fava, 342 N.J.Super. 38,
46 (App. Div. 2001) certif. denied, 170 N.J. 210 (2001). Unlike the discovery rule which
suspends the limitation period because the plaintiff is unaware of retaliatory action,
equitable tolling of a statute of limitations occurs when a plaintiff is misled as to the real
reason for demotion or termination and as a result fails to act within the prescribed time
limit. Id. at 50, citing Dunn v. Borough of Mountainside, 301 N.J.Super. 262, 276-78
(App. Div. 1997), certif. denied, 153 N.J. 402 (1998). Typically, the doctrine is applied
where the complainant has been induced or tricked by his adversary's misconduct into
allowing the filing deadline to pass. Id. at 50, again citing Dunn v. Borough of
Mountainside, 301 N.J.Super., supra, at 280, a case in which a plaintiff had been
seriously abused by a police officer but was unable to make an identification of the
defendant until after the two year limitation period of the Tort Claims Act had run. The
court held that equitable tolling applied because the defendant was a police officer and
had an independent duty to disclose the assault. However, absent a showing of
intentional inducement or trickery by the defendant, the doctrine of equitable tolling
should be applied sparingly and only in the rare situation where it is demanded by sound
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legal principles as well as the interest of justice. Freeman v. State, 347 N.J.Super. 11, 31
(App. Div. 2002), certif. denied, 172 N.J. 178 (2002).
Here, the Plaintiff argues that by insisting on the insertion of language in the
Stipulation of Dismissal which deprived him of his right to due process and his rights
under the LAD, the Defendant tricked and defrauded him into believing that he had no
recourse when he was transferred out of the Detective Bureau for what he believed to be
retaliation under the LAD. However, the Plaintiffs Certification submitted in opposition
to this Motion clearly states that it was his own attorney who told him that the clause was
enforceable, and that once he signed the agreement he would nave no recourse if he were
transferred out of the Detective Bureau. Plaintiff also certified that his own attorney told
him that the defendants would not settle the case unless Mr. Brooks agreed to that clause
which provided that any transfer out of the Detective Bureau after a minimum period of
twelve months "will be without recourse, and shall be non-appealable, non-grievable, and
not reviewable in a Court of law."
This Court finds that there is no evidence that the Township of Springfield
did anything to trick or defraud Mr. Brooks in connection with the decision to transfer
him out of the Detective Bureau in October of 2000 and in the two years thereafter which
prevented him from filing a complaint to challenge the transfer within the statute of
limitations.
Plaintiffs counsel argues that the Defendant's insistence upon that language as a
condition of settlement in and of itself amounts to intentionally fraudulent conduct by the
Defendant sufficient to apply the doctrine of equitable tolling. However, there is no
evidence that the Defendant made any representations to the Plaintiff about whether or
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not that language would be enforceable if the Plaintiff were transferred out of the
Detective Bureau after a year under circumstances which might support a claim for
retaliation under the LAD, that the Plaintiff relied upon in making a decision not to file a
complaint within the two years following the transfer.
The record shows that the Defendant insisted on that language as a condition of
settlement, and that Mr. Brooks relied on his own attorney's advice in accepting the
settlement with that condition. Therefore, this Court finds that the doctrine of equitable
tolling based upon deceit or trickery by the Defendant cannot be applied to the facts of
this case.
It is true that the doctrine of equitable tolling may also apply where a plaintiff has
"in some extraordinary way" been prevented from asserting his rights. Freeman v. State,
supra, 347 N.J.Super. at 31, quoting Dunn v. Borought of Mountainside, supra, 301
N.J.Super. at 275.
In this case, the Plaintiff has certified that because he believed that the language
of the Stipulation of Settlement clearly established that he had no recourse of any kind,
and his own attorney was adamant about its enforceability, he did not seek the opinion of
any other attorney within the two year period after the transfer.
In Binder v. Price Waterhouse & Co., 393 N.J.Super. 304, 314 (App. Div. 2007),
the plaintiff argued that it was the inaction of his prior counsel that prejudiced him and
caused the delay in filing a state action after the dismissal of his action in the Bankruptcy
Court alleging identical claims and seeking identical relief. In response the appellate
court pointed out that:
It has been held that, "(i)n non-capital cases, attorney error, miscalculation, inadequate research or other mistakes have
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not been found to rise to the 'extraordinary' circumstances required for equitable tolling." Fahy v. Horn, 240 F. 3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944, 122 S. Ct. 323, 151 L. Ed. 2d 241 (2001). Although "egregious attorney mis- conduct may justify equitable tolling...a petitioner 'must also show that he acted with reasonable diligence and that the extraordinary circumstances caused his petition to be untimely.'" Schlueter v. Varner, 384 F. 3d 69, 77 (3d Cir. cert. denied, 544 U.S. 1037, 125 S. Ct. 2261, 161 L. Ed. 2d 1067 (2005) (quoting Baldayaque v. United States, 338 F. 3d 145, 152-153 (2d Cir. 2003).
This is clearly not a capital case. Assuming that the prior attorney gave the
Plaintiff incorrect advice, the Plaintiff made some attempts to contact him about another
matter within a month or two of the settlement, and his calls were not returned. The
Plaintiffs attempt to retrieve his files from the prior lawsuit from the attorney was also
unsuccessful. This Court finds that these circumstances would have caused a reasonable
person in the Plaintiffs position to consult another attorney about his prior attorney's
advice with respect to the enforceability of the settlement after the Plaintiff was
transferred out of the Detective Bureau in October of 2000. Although Mr. Brooks did not
state when he learned that this attorney was disbarred, his attorney was suspended from
the practice of law by Order of the New Jersey Supreme Court filed June 27, 2001, and
thereafter consented to disbarment as of July 25, 2002, during the two year period
between the transfer out of the Detective Bureau in October of 2000, and the running of
the statute of limitations in October of 2002. See, In re Rhodes, 173 N.J. 327 (2002).
This Court finds that the advice given to the Plaintiff by his attorney about the
Stipulation of Settlement does not constitute extraordinary circumstances sufficient to
invoke the doctrine of equitable tolling, and that even if it did, the Plaintiff did not act
with reasonable diligence to seek the advice of other counsel within the two year period
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after the transfer was made, taking into account his own personal experience with
attempting to contact this attorney and retrieve his files after the first lawsuit was settled.
Therefore, this Court finds that the doctrine of equitable tolling does not apply in
this case.
C. The Plaintiff's Argument that the Discovery Rule Should Apply to This Case.
Alternatively, the Plaintiff argues that because the language of the Stipulation of
Settlement was so clear, he did not seek the advice of any other attorney within the two
year period after his transfer out of the Detective Bureau. Only when he consulted with
his present counsel about a subsequent claim based upon a hostile work environment, was
he advised that he could challenge the language of the Stipulation of Dismissal as
contrary to public policy as expressed in the LAD, and he asks this Court to rule that the
statute of limitations with respect to his claim for retaliatory transfer should begin to run
when he received that advice from his present attorney.
The discovery rule avoids the mechanical application of a statute of limitations by
postponing the accrual of a cause of action so long as a party is unaware either that he has
been injured or that the injury was due to the fault or neglect of an identifiable person.
Villalobos v. Fava, supra, 342 N.J.Super. at 45-46. The standard is basically an objective
one, and the crucial inquiry is whether the facts presented would alert a reasonable person
exercising ordinary diligence that he or she was injured due to the fault of another.
Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J.275, 281 (2005), citing
Martinez v. Cooper Hospital, 163 N.J. 45, 52 (2000).
In this case, Mr. Brooks knew in October of 2000 that he was being transferred
out of the Detective Bureau back to patrol, despite outstanding performance evaluations
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as a detective, and that although the reason given for the transfer was based on staffing
and assignment needs within the Springfield Police Department, his position in the
Detective Bureau was filled by another officer from the patrol division. He had also been
taken to the scene of the Halloween display by the Chief and orally notified on the way
there that he was being transferred out of the Detective Bureau which he considered to be
a threat to his life.
In this case, the Plaintiff was well aware that the Township had insisted that he
accept the language in the Stipulation of Settlement in order to resolve the prior litigation.
In the fall of 2000 he knew the facts that caused him to believe that he was the victim of a
retaliatory transfer, that is, the nature of his injury, and he knew the entity that had caused
the injury. What he did not know, is whether or not he could challenge the enforceability
of the language in the Stipulation of Settlement that provided that the transfer, it if
occurred after the minimum period of time, was non-reviewable in a Court of law.
In Grunwald v. Bronkesh, 131 N.J. 483, 492-493 (1993), a case involving the
application of the discovery rule in an action for legal malpractice, the New Jersey
Supreme Court held that, "The limitations period begins to run when a Plaintiff knows or
should know the facts underlying those elements, not necessarily when a Plaintiff learns
the legal effect of those acts." In this case, the Plaintiff clearly knew the facts in October
of 2000, but he concedes that he did not obtain any legal advice about the enforceability
of the Stipulation of Settlement based on those facts until he contacted his present
attorney almost seven years later about a subsequent claim related to his employment in
this Police Department. Clearly the Plaintiff realized that he should contact a different
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attorney for advice about the new allegations of violations of the LAD by the Police
Department.
This Court has already ruled in the context of the doctrine of equitable tolling,
that the Plaintiff's failure to seek the advice of counsel other than his prior counsel about
the legal effect of the provision of the Stipulation of Settlement which precluded review
by a Court of Law was not reasonably diligent, given his negative experiences with that
prior attorney in the time between the settlement and the transfer, and that finding applies
with equal force to defeat the Plaintiffs argument that the discovery rule should be
applied under the circumstances of this case.
Since this case was argued, the New Jersey Supreme Court has confirmed in the Roa
case that, "There is simply nothing about a LAD case that would militate against
applying the equitable principles informing the discovery rule to allow pursuit of a claim
of which the party was reasonably unaware." Roa v. Roa, supra, N.J. (slip op.
at 18). However, in affirming the dismissal of Mr. Roa's claim of retaliatory termination
as time-barred, the Court held that, "When Fernando (Roa) was fired he clearly knew, or
should have known, that he had been the subject of retaliation by defendants, and should
have filed his complaint within two years thereof. When he did not do so, the
termination, as a claim, was lost and was not subject to a continuing violation analysis."
Id. (slip op. at 14-15).
Likewise, this Court finds that the Plaintiff's failure to act with reasonable
diligence to obtain legal advice about the enforceability of the Stipulation of Settlement,
under the facts known to him that caused him to believe that he had been the subject of a
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retaliatory transfer, causes this Court to conclude that the discovery rule does not apply
under the circumstances of this case.
Since this Court has found that neither the doctrine of equitable estoppel nor the
discovery rule can be applied to the circumstances of this case, the Plaintiffs claim that
his transfer out of the Detective Bureau in October of 2000 was retaliatory in violation of
the LAD is time-barred. Therefore the only remaining claim in Count One of the Second
Amended Complaint must be dismissed.
D. The Plaintiff's Argument that the Provision in the Stipulation of Settlement That Precludes Recourse to a Court of Law Is Unenforceable Because It Violated His Due Process Rights and Public Policy as Enacted in the LAD.
Because the Plaintiff's claim of retaliatory transfer under the LAD is dismissed as
time barred, the court will not reach the issue raised by the Plaintiff that the language of
the Stipulation of Settlement which precluded him from seeking recourse to a Court of
Law as a result of the transfer is unenforceable because it violated his due process rights
and public policy as enacted in the LAD.
E. The Plaintiffs Related Claims for Intentional Infliction of Emotional Distress and Damages.
In the Second Count of the Second Amended Complaint, Plaintiff Brooks seeks
damages for intentional infliction of emotional distress compensable under the LAD and
punitive damages based upon his claims in Count One that the Defendant violated the the
LAD. Since the court has now dismissed all of the plaintiff's claims in Count One of the
Complaint under the LAD, his related claims for damages for intentional infliction of
emotional distress and punitive damages must also be dismissed.
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F. The Plaintiff's Claim of Retaliation by the Defendant Against His Witness During the Course of Discovery in Violation of the LAD.
In the Third Count of the Second Amended Complaint, Plaintiff Brooks alleges
that Plaintiff Peter Davis, a captain in the Springfield Police Department, testified at a
deposition in this matter on February 17, 2009 in a manner critical of Chief William
Chisholm. The Plaintiff further alleges that following that deposition, the Defendant
retaliated against Captain Davis by improperly issuing him a disciplinary letter of
counseling and assigning him to the midnight shift in violation of N.J.S.A. 10:5-1(d).
Plaintiff Walter Brooks alleges that he also suffered LAD prohibited retaliation in that the
Defendant attempted to intimidate and harass his witness, Captain Peter Davis.
In the Brief filed on behalf of the Defendant Police Department in support of the
motion for summary judgment on this claim, defense counsel acknowledges that co-
workers who have asserted rights under the LAD have standing to litigate a claim that a
defendant took reprisals against them for their protected activity in support of a co-
worker. See Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 632 (1995). Counsel
argues, however, that Plaintiff Brooks does not have standing to raise a claim of
retaliation against Captain Davis.
Plaintiff Brooks does not allege that any adverse employment action was taken
against him after Captain Davis gave his deposition. The original complaint had been
filed in October of 2007, and the deposition of Captain Davis occurred on February 17,
2009. Plaintiff Brooks alleges that the Defendant's retaliatory action against Davis was
an attempt to intimidate and harass his witness, and constituted the intentional infliction
of emotional distress on him for which he seeks compensatory and punitive damages.
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Although Plaintiff Brooks did not plead specifically that the action taken by the
Defendant against his witness had a chilling effect on his own assertion of his right to file
and pursue an action against his employer under the LAD, his counsel raised that issue at
oral argument. Plaintiff's counsel also argued that although Captain Davis has not shown
any signs of backing off of his deposition testimony or refusing to testify on behalf of
Plaintiff Brooks in a trial of this matter, he might do so, and in any event, the Plaintiff
should be allowed to pursue his own claim for infliction of emotional distress caused by
the retaliatory conduct of the Defendant towards his witness during this litigation.
Defense counsel responded that if Captain Davis were to refuse to testify or
change his testimony at trial, there are appropriate remedies in the evidence rules to allow
Plaintiff Brooks to present the deposition testimony of Defendant Davis to the jury.
Defense counsel also argued that the deposition testimony of Captain Davis was not
related to the transfer of Plaintiff Brooks out of the Detective Bureau in October of 2000,
which was the only remaining allegation of retaliatory conduct under the LAD in Count
One of the Second Amended Complaint after the entry of this Court's prior Order of
August 26, 2009. As a result, they argued, there would be no purpose for Captain Davis
to testify at a trial. Finally, defense counsel argued that since the claim of retaliatory
conduct as to which Captain Davis would testify has already been dismissed by the
Court, Plaintiff Brooks cannot pursue his claim that the Defendant attempted to
intimidate and harass his witness with respect to Davis' testimony about that claim.
N.J.S.A. 10:5-12(d) makes it an unlawful employment practice, or an unlawful
discrimination:
For any person to take reprisals against any person because that person has filed a complaint, testified or assisted in any
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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 (the LAD).
In Craig v. Suburban Cablevision, Inc., supra, 140 N.J. at 629, the Supreme Court
pointed out that the Legislature amended section 12(d) in 1992 to add the language which
expands the class protected from employer retaliation to include not just persons who
"opposed any practices or acts forbidden under the LAD" or who "filed a complaint,
testified or assisted in any proceeding," but also persons who merely "aided or
encouraged" another person in the exercise of that person's rights under the LAD. Id.
Accordingly, the Supreme Court held that the plaintiff's mother, who was also her
manager in the defendant's door-to-door sales department, who testified in the plaintiffs
discrimination case against the defendant employer in federal district court, could sue the
employer in a separate state action under the LAD, claiming that she was discharged in
retaliation for aiding or encouraging her daughter and co-worker "in the exercise or
enjoyment of a right granted or protected by the LAD." Id. at 630. The daughter, Susan
Chapman, had also been a plaintiff in the state action, but reached a settlement with the
defendant in the federal matter, and did not join her mother and the other plaintiffs in the
appeal from the dismissal of their claims of retaliatory discharge under the LAD in the
state action.
With respect to the remaining plaintiffs who had not testified on behalf of Susan
Chapman, but claimed that the employer had fired them because they supported her, the
Supreme Court looked to federal precedent under Title VII of the Civil Rights Act of
1964. In DeMedina v. Reinhardt, 444 F. Supp. 573, 574 (D.D.C. 1978), aff d in relevant
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part, 686 F2d 997 (1982), the plaintiff alleged that she was denied employment at the
United States Information Agency (USIA) on account of her gender and national origin,
and in retaliation for her husband's anti-discrimination activities on behalf of minority
employees at USIA.
Finding that the New Jersey Supreme Court had frequently looked to case law
under Title VII of the Civil Rights Act of 1964, and that Title VII has a provision
analogous to N.J.S.A. 10:5-12(d), (42 U.S.C. Section 2000e-3(a)), our Supreme Court
noted that in DeMedina, the court had rejected the defendant's argument that only the
plaintiffs husband, and not the plaintiff herself, could seek relief under the anti-
retaliatory provision of Title VII because only her husband was engaged in protected
activity, and her husband had not been dismissed from employment.
The federal district court found that Congress did not expressly consider the
possibility of third-party reprisals, but that Congress had intended to ensure that no
person would be deterred from exercising his rights under Title VII by the threat of
discriminatory retaliation. Since tolerance of third-party reprisals would also deter
persons from exercising their protected rights under Title VII, the court concluded that
Title VII also proscribed the alleged retaliation claimed by the plaintiff's wife. Craig v.
Suburban Cablevision, Inc., supra at 631-32, quoting DeMedina v. Reinhardt, supra,
444 F. Supp. at 580.
In the Suburban case, the defendant attempted to distinguish the DeMedina case,
arguing that it stands for the proposition that an employee's friend or relative has
standing to complain about retaliation only when the employer has not retaliated against
21
the employee, but Susan Chapman had also been terminated. The Supreme Court
responded that:
The argument misses the mark. Firing an employee engaged in a protected activity does not vitiate coercion, intimidation, threats, or interference with co-workers. Discriminating against one employee in violation of the LAD should not insulate a vengeful employer from claims by other employees against whom the employer has retaliated. Id. at 632.
The Supreme Court also pointed out that reprisals against relatives and close
friends who are co-workers can be coercive, and that in the context of Suburban's door-
to-door sales department, reprisals against Susan Chapman's mother, sister, and close
friends could have had a coercive effect on Susan. Id. at 633. Accordingly, the Court held
that Susan's relatives and friends, who were also her co-workers, had standing to pursue
their claim of retaliatory discharge under the LAD. Id.
It is also important to note that in DeMedina, the federal case relied upon by the
Supreme Court, the federal district judge gave the following explanation of why the
argument that if the retaliation was aimed at the plaintiff's husband, only the husband
should be able to make the claim, should be rejected:
Such a construction of Title VII would produce absurd and unjust results, for while plaintiff's husband might be in a position to seek injunctive relief to prohibit future reprisals against his spouse, he would certainly not be in a position to seek back pay and/or retroactive promotion based on his spouse's employment denial. Therefore, unless plaintiff herself is permitted to seek relief based on the denial of her employment application, the "make whole" purpose of Title VII would be frustrated. DeMedina v. Reinhardt, supra, 444 F. Supp. at 580.
Taking into account the recognition by the Supreme Court that retaliation against
a co-worker who testifies in support of a plaintiff on a LAD claim may have a coercive
22
effect on the plaintiff, this Court finds that Plaintiff Brooks does have standing to bring a
claim that the Defendant attempted to intimidate and harass his witness after that witness
testified in his favor during the litigation of Brooks' claims of retaliation under the LAD
to seek injunctive relief to prohibit future reprisals.
Next, the defense argues that Plaintiff Brooks can no longer pursue this claim
because the court found in favor of the Defendants on the Plaintiff's claim that he was
subjected to a hostile retaliatory environment within two years of the filing of the
complaint by Order of August 26, 2009.
In the Letter Opinion which accompanied the Order of August 26, 2009, this
Court found that Captain Peter Davis was deposed on February 27, 2009 in this matter.
The deposition testimony of Plaintiff Davis was related to the claim by Plaintiff Brooks
that Sgt. James Fine was pressured by Chief Chisholm to lower Brooks' annual
evaluation of Brooks for 2006. The specific findings with respect to his testimony and the
Certification submitted by Captain Davis in opposition to the motion are included in the
Letter Opinion.
This Court ultimately concluded that, while Sgt. Fine felt threatened by the
information given to him by Captain Davis and thought that there might be something
personal about the Chief's feelings about the Plaintiff's evaluation, and lowered his
evaluation as a result, there is no specific evidence in the record that Chief Chisholm or
the Deputy Chief singled out Officer Brooks to have his evaluation lowered based on his
race or his protected status.
As a result, this Court found that Plaintiff Brooks could not establish as part of his
prima facie case of a hostile environment that his evaluation by Sgt. Fine in 2007 for
2006 was lowered because of pressure from the Chief and Deputy Chief based on the
race or protected status of Officer Brooks. This Court ultimately found that Officer
Brooks could not establish a prima facie case of a hostile environment in the two years
prior to the filing of his complaint, and therefore, there will be no trial on the claim as to
which Plaintiff Davis provided deposition testimony.
Nevertheless, the United States Court of Appeals for the Third Circuit has held
that protesting what an employee believes in good faith to be a discriminatory practice is
clearly protected under Title VII, and thus a plaintiff need not prove the merits of the
underlying discrimination complaint, but only that "he was acting under a good faith,
reasonable belief that a violation existed." Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1085, citing Griffiths v. Cigna Corp., 988 F.2d 457, 468 (3d Cir. 1993). As the
United States Court of Appeals for the District of Columbia Circuit has also explained:
An employer has... no legitimate interest in retaliating against an employee per se, and the fact that a nonfrivolous claim is ultimately resolved in favor of management does not justify an attempt to suppress the claim by penalizing the employee who raised it. The employer is sufficiently protected against malicious accusations and frivolous claims by a requirement that an employee seeking the protection of the opposition clause demonstrate a good faith, reasonable belief that the challenged practice violates Title VII... Opposition based on reasonable belief should be protected from retaliation. Parker v. O.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981).
Of course, Plaintiff Brooks must prove his claim that he suffered LAD prohibited
retaliation because the Defendant attempted to intimidate and harass his witness, Captain
Davis, and that he was acting under a good faith, reasonable belief that a LAD violation
existed, when he asserted his claim that Sgt. Fine was pressured by Chief Chisholm to
24
lower Fine's annual evaluation of Brooks for 2006, even though that claim has been
dismissed by the court.
Defense counsel argued that, aside from whether Plaintiff Brooks can prove that
Davis was retaliated against, Mr. Brooks may not pursue a claim for retaliation
by the Defendant in an attempt to intimidate and harass his witness unless he suffered an
adverse employment action as a result. Plaintiffs counsel responded that in Roa v. Roa,
supra, 402 N.J. Super. at 540-541, the appellate court pointed out that in Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), the
United States Supreme Court determined that the anti-retaliation provision of Title VII is
not limited to discriminatory actions that affect the terms and conditions of employment,
but rather, the scope of the provision extends beyond workplace-related or employment-
related retaliatory acts and harm. The court then compared the anti-retaliation provision
of Title VII to the anti-retaliation provision of the LAD, N.J.S.A. 10:5-12(d), and noted
that "practices or acts forbidden" under the LAD include many things unrelated to one's
employment, and that by its terms, subsection (d) is not limited to one's employer, but
rather applies to the conduct of "any person." Roa v. Roa, supra, 402 N.J. Super. at 540-
541.
Recognizing that our courts have traditionally looked to federal precedent
governing Title VII as a source of interpretive authority in construing the LAD, and that
like Title VII, the LAD contains both substantive provisions and an anti-retaliation
provision, the appellate court concluded that:
The Supreme Court's essential holding in Burlington Northern, i.e. that Title VII's anti-retaliation provision creates a distinct cause of action that need not be related to the workplace, applies with equal reasoning to construction of the LAD.
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This is consistent with both the express language of the LAD, as well as its broad remedial purposes. Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391 (2005). Id. at 541.
In its recent opinion in the Roa case, the Supreme Court affirmed that analysis,
holding that:
We take our lead from Burlington and from the cited federal cases. Like the Appellate Division, we are satisfied that the Supreme Court's holding that Title VII created a distinct cause of action for retaliatory conduct that need not be related to the workplace applies with equal force to the LAD. That is consistent with the express language of the LAD, as well as the broad remedial purposes underlying it. Roa v. Roa, supra,
N.J. (slip op. at 21).
In the Roa case, the plaintiffs alleged that retaliatory acts were taken in close
proximity to their terminations. One plaintiff claimed that when she sought
unemployment benefits after her termination, defendants claimed that she had been fired
for misconduct, when in fact her discharge was retaliatory. The other plaintiff claimed
that the defendant had terminated his health insurance as further retaliation against him
and his wife. Although the wife's claim related to her unemployment benefits was
determined to be time-barred, the Appellate Division recognized that it was possible to
bring the claims raised by both plaintiffs under the LAD, based upon the holding of the
United States Supreme Court in Burlington applied to Title VII, and remanded the
husband's claim for further proceedings. Roa v. Roa, supra, 402 N.J. Super. at 543.
Although the Supreme Court determined that the husband's claim of retaliatory discharge
was time-barred, it agreed that his claim based upon the cancellation of his insurance
could proceed. Roa v. Roa, supra, N.J.
(slip op. at 23).
26
In doing so, the Supreme Court rejected the defendant's argument that the
insurance cancellation did not rise to the level necessary to invoke the LAD's protection
and thus was not independently actionable, contending that it was inadvertent, and in any
event, caused no damage to Mr. Roa. The Court again took its lead from the United
States Supreme Court in the Burlington case. (slip op. at 22).
In Burlington, the Court considered various standards developed by the lower
courts and adopted the standard which requires the plaintiff to show that a reasonable
employee would have found the challenged action materially adverse, which in the
context of making or supporting a charge of discrimination means that it well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.
Burlington N. & Santa Fe Ry. Co., supra, 548 U.S. at 68, 126 S. Ct. at 2415, 165 L. Ed.
at 359 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) quoting
Washington v. Ill. Dept. of Revenue, 420 F.3d 658, 662 .
(7th Cir. 2005)), cited in Roa v. Roa, supra, N.J. (slip op. at 22).
In writing for our Supreme Court, Justice Long then quoted the explanation given
by the United States Supreme Court as to why it had purposely used the adjective
"materially" adverse in the standard:
It is important to separate significant from trivial harm. Title VII, we have said, does not set forth "a general civility code for the American workplace." An employee's decision to report discriminatory behavior cannot immu-nize that employee from petty slights or minor annoyances that often take place at work and that all employees experi- ence. The antiretaliation provision seeks to prevent employ-er interference with "unfettered access" to Title VII's reme-dial mechanisms. It does so by prohibiting employer actions that are likely "to deter victims of discrimination from com-plaining to the EEOC," the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of
27
good manners will not create such deterrence. Id. at p. 23, (quoting Burlington N. & Santa Fe Ry. Co., supra, 548 U.S. at 68, 126 S. Ct. at 2415, 165 L. Ed. 2d at 359-360 (cita-tions omitted).) (slip op. at 22-23).
Our Supreme Court then found that, tested by the Burlington standard, Mr. Roa's
claim, if proven, that defendants deliberately and wrongfully terminated his health
insurance in retaliation for his having reported the sexual harassment of female
employees, is unlike the petty slights and minor annoyances referred to in Burlington,
and that viewing his claim in a light most favorable to him in the context of a motion for
summary judgment, his claim that the insurance cancellation at least in part caused him
and his wife to experience financial problems, damaged their credit rating, subjected
them to calls from debt collectors and caused them a tremendous amount of stress and
anxiety was sufficient to meet the threshold for an independent cause of action under the
LAD. (slip op. at 23).
This Court has already concluded that because N.J.S.A. 10:5-12(d) prohibits any
person from taking reprisals against any person because that person has testified in any
proceeding under the LAD, and because of the analysis of the New Jersey Supreme Court
in the Craig case, that such reprisals may also have a coercive effect on a plaintiff,
Plaintiff Brooks has standing to at least file a claim to enjoin that type of retaliation in his
own case.
If Plaintiff Brooks can prove the claim that the Defendant retaliated against Davis
for testifying in Brooks' behalf in a way that meets the Burlington/Roa standard, this
Court finds that for purposes of summary judgment, a reasonable worker in Brooks'
position might have been dissuaded from pursuing their retaliation claim under the LAD.
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The Briefs and Certifications submitted in support of and in opposition to this
motion and cross-motion for summary judgment on Count Three of the Second Amended
Complaint do not specifically address the issues of whether, on the basis of the evidence
gathered prior to the end of discovery, Plaintiff Brooks can establish that he had a good
faith basis to bring his claim that Sgt. Fine lowered his evaluation of Brooks for 2006
because of pressure from the Chief and the Deputy Chief based on the race or protected
status of Officer Brooks, even though this Court has dismissed that claim.
In addition, the Briefs and Certifications submitted for and against this motion
and cross-motion for summary judgment do not specifically address whether Plaintiff
Brooks can sufficiently establish his claim that the Defendant attempted to harass and
intimidate him by retaliating against Captain Davis after he gave deposition testimony on
behalf of Plaintiff Brooks to avoid summary judgment, and if so, whether there is
sufficient evidence to support Brooks' related claim for compensatory damages for
intentional infliction of emotional distress and punitive damages.
For those reasons, this Court must deny the motion and cross-motion for summary
judgment as to Count Three of the Second Amended Complaint without prejudice to any
further motions filed to determine those issues prior to trial.
III. Conclusion.
For all these reasons, the motion and cross-motion for summary judgment are
granted with respect to Plaintiff Brooks' remaining claim of retaliatory transfer under
Count One of the Second Amended Complaint and Count Two as it relates to the
intentional infliction of emotional distress and punitive damages with respect to that
29
claim. Therefore, Counts One and Two of the Second Amended Complaint are
completely dismissed with prejudice as to the Defendant Police Department.
The motion and cross-motion are denied without prejudice with respect to Count
III of the Second Amended Complaint.
A filed copy of the Order is enclosed.
Yours very truly,
KATHRYN A. BROCK, J.S.C.
Encl.
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