O'Connell v. N.J. Tpk. Auth.
| Decision Date | 07 April 2015 |
| Docket Number | Civil Action No. 12-49 (ES) (JAD) |
| Parties | JOHN F. O'CONNELL, Plaintiff, v. NEW JERSEY TURNPIKE AUTHORITY, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Presently before the Court is Defendant New Jersey Turnpike Authority's ("NJTA") Motion for Summary Judgment. (D.E. No. 59). In this action, Plaintiff Colonel John F. O'Connell, an NJTA employee in the Department of Law, claims that he was the victim of a hostile work environment in violation of the New Jersey Law Against Discrimination, N.J. Stat. Ann. 10:5-1, et seq. (West 2015) (the "LAD") and the New Jersey Constitution. Plaintiff is seeking compensatory and punitive damages. NJTA argues that it is entitled to summary judgment because: (1) Plaintiff has failed to demonstrate that the conduct at issue was sufficiently severe or pervasive enough to make a reasonable person believe the conditions of his employment were altered and the working environment was hostile or abusive; and (2) NJTA may not be held vicariously liable for its employee's conduct because it had an anti-harassment policy in place which prevented and cured the harassment at issue. For the reasons set forth below, the Court GRANTS summary judgment to NJTA and dismisses Plaintiff's claims with prejudice.
Plaintiff originally filed this action against NJTA and five individual defendants in state court on November 29, 2011. . The action was removed to this Court on January 3, 2012. (D.E. No. 1). Plaintiff filed an Amended Complaint on November 19, 2012. (D.E. No. 21 ("Am. Compl.")).1
By Stipulation and Order dated November 30, 2012, this Court dismissed with prejudice all claims against the five individuals and the Third Count of Plaintiff's Amended Complaint (alleging negligent infliction of emotional distress) against all parties. (D.E. No. 25). Thus, the remaining claims in this action are Counts One, Two, and Four in the Amended Complaint, and the only Defendant remaining is NJTA. NJTA filed its Answer to the Amended Complaint on December 13, 2012, (D.E. No. 27), and the case thereafter proceeded through discovery.
On June 2, 2014, the Court set a date of July 24, 2014 for global filing of the papers related to NJTA's motion for summary judgment. (D.E. No. 58). In accordance with the global briefing schedule, NJTA filed a motion for summary judgment seeking a dismissal of Plaintiff's Amended Complaint in its entirety, with prejudice, ( )), Plaintiff filed opposition, (see D.E. No. 61, Plaintiff John F. O'Connell's Brief in Opposition to Defendant New Jersey Turnpike Authority's Motion for Summary Judgment ("Pl. Opp. Br.")), and NJTA filed a reply, (see D.E. No. 62, Reply Brief on Behalf of Defendant New Jersey Turnpike Authority in Further Support of its Motion for Summary Judgment ("Def. Reply Br.")).
On September 17, 2014, NJTA filed a supplemental letter brief alerting the Court to a September 16, 2014 decision of the New Jersey Appellate Division relating to vicarious liability under the LAD, (D.E. No. 63, ("Def. Ltr. Br.")), and Plaintiff filed opposition, (D.E. No. 64, ("Pl. Opp. Ltr. Br.")). On February 11, 2015, the New Jersey Supreme Court issued an opinion on the same vicarious liability issue, and the Court ordered the parties to submit a five page letter brief explaining the decision's impact on the pending summary judgment motion. (D.E. No. 65). NJTA filed its letter brief on February 19, 2015, (D.E. No. 66, ("Def. Supp. Ltr. Br.")), and Plaintiff filed his opposition on February 27, 2015, (D.E. No. 67, "Pl. Opp. Supp. Ltr. Br.")). The motion for summary judgment is now ripe for adjudication.
Plaintiff alleges that he was subjected to harassment at NJTA based on his services in the armed forces. From September 2002 through the present, Plaintiff has been employed full-time as a Staff Attorney in the NJTA Law Department. (SUMF ¶ 3). Plaintiff was not a military service person at the time of his September 2002 hiring, but entered the military in May 2003. (Id. ¶ 4). Between May 2003 and 2012, Plaintiff estimates that he has been absent from his NJTA employment for approximately "2,200 days," or "about six years or so." (Id. ¶ 11). Every request for military leave that Plaintiff has made while employed by NJTA has been granted, Plaintiff'sLaw Department position was always held open for him while he was on military leave, and he was always promptly reinstated upon his return from active duty. (Id. ¶¶ 13, 15).
There are approximately nine to ten attorneys in the NJTA Law Department. (Id. ¶ 3). As a Staff Attorney, Plaintiff worked under NJTA Director of Law, George Caceres, Esq., from September 2002 until Mr. Caceres left the NJTA in October 2010. (Id. ¶ 5). At all times, Plaintiff believed that Mr. Caceres was fair, direct, and honest with Plaintiff. (Id.). When Mr. Caceres terminated his NJTA employment in October 2010, the then-Deputy Director of Law, Linda Cavanaugh, Esq., assumed the position of "Acting" Director of Law until a permanent replacement was named. (Id. ¶ 8). Ms. Cavanaugh left her NJTA employment ten months later, in August 2011. (Id.). During the entire ten-month period of time that Ms. Cavanaugh served as "Acting" Director of Law (October 2010 until August 201l), Plaintiff was away from NJTA on military leave and not performing any work for NJTA. (Id. ¶ 9). Plaintiff testified that throughout their NJTA employment together, Ms. Cavanaugh treated him fairly. (Id.). Plaintiff's current supervisor is NJTA General Counsel Bruce Harris, Esq. (Id. ¶ 10). None of Plaintiff's allegations in this lawsuit relate to the acts or conduct of Mr. Harris. (Id.).
At all times during Plaintiff's employment, the NJTA has had in place an Equal Employment Opportunity/Non-Discrimination Policy (the "Policy") that expressly forbids discrimination against employees and applicants for employment on the basis of their "military status," and states that "[h]arassment is a kind of discrimination and, likewise, will not be tolerated at the NJTA." (Id. ¶¶ 17-19). The Policy sets forth a grievance and investigation process, with which Plaintiff has been familiar at all times during his employment. (Id. ¶¶ 20-25, 29). NJTAmandates training for all employees with respect to the Policy. (Id. ¶¶ 31-39).
Plaintiff alleges multiple instances of harassment. (See Pl. Opp. Br. at 23-24). The Court has parsed the record and sets forth below the facts relating to Plaintiff's allegations.
Plaintiff admits that he has received regular pay raises while employed at NJTA, but alleges that his salary was not "raised consistent with others and with the level of work [Plaintiff] was performing," constituting harassment. (SUMF ¶¶ 40-41).3 Plaintiff was hired in 2002 with a starting salary of $80,000 per year, which was increased to $90,552 (as of January 1, 2005), $94,210 (as of January 1, 2006), then $99,317 (as of January 1, 2008), and $102,296 (as of January 1, 2009). (Id. ¶ 53). Since that time, no non-bargaining unit employees (such as NJTA attorneys) have received salary increases without changing positions. (Id. ¶ 54).
It is undisputed that NJTA has not conducted performance evaluations for Law Department attorneys during Plaintiff's employment. (Id. ¶ 50). While Mr. Caceres was NJTA Director of Law from September 2002 until October 2010, he never requested a salary increase for himself, for any of the approximately nine to ten attorneys who worked under him, or for any of the approximately fifteen staff members who worked in the Law Department. (Id. ¶ 51). Ms. Cavanaugh did not have authority to give raises or promotions, but would give "opinions" on employees if asked; however, there are no facts to suggest that Ms. Cavanaugh provided input on Plaintiff's raise eligibility or amount. (Id. ¶ 52).
Experience and years of admittance to the Bar are among the criteria used to set NJTA employee salaries. (Id. ¶ 44). Plaintiff admits he has no evidence regarding the criteria used todetermine either (1) his own salary; or (2) salary increases. (Id. ¶ 42).
Plaintiff admits that some staff attorneys receive higher salaries than his, and others receive lower salaries. (Id. ¶ 55). Two staff attorneys who are not in the military earned less salary than Plaintiff. (Id. ¶¶ 47, 48). An attorney who was hired in May 2006 started at a salary higher than Plaintiff's, but Plaintiff admits that he has no reason to believe that military service (or lack thereof) played a role in setting this salary. (Id. ¶ 57). Likewise, Plaintiff admits that he does not know what factors determined the salary of another attorney who earned $3,000 less than Plaintiff between 2005 and 2006, but who began earning $500 more per year than Plaintiff in 2007. (Id. ¶ 58). Finally, Plaintiff admits that he has no evidence that military service status played any role in the earnings of another employee who consistently earned a higher salary than Plaintiff, graduated from law school eleven years prior to Plaintiff, joined NJTA five years prior to Plaintiff, and who received a smaller pay increase than Plaintiff effective January 1, 2005. (Id. ¶¶ 59-61).
In late 2007 or early 2008, Plaintiff's co-worker Joe Orlando "doctored" two photographs of Plaintiff. (See id. ¶¶ 182-204). The first photo-shopped picture made it appear as though Plaintiff was speaking at the Republican National Convention. (Id. ¶ 186). Plaintiff alleges that the photograph was "demeaning" and that it could have suggested that Plaintiff was "breaking the law" ( 10 U.S.C. § 771 (2014)) for appearing at a partisan political...
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