Milutin v. State, DOCKET NO. A-3387-15T1
| Decision Date | 12 October 2018 |
| Docket Number | DOCKET NO. A-3387-15T1 |
| Parties | JOSEPH MILUTIN, Plaintiff, and ROBERT HEALEY, Plaintiff-Respondent/Cross-Appellant, v. STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS, Defendant-Appellant/Cross-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Simonelli, Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-3118-06 and L-3119-06.
Melissa A. Salimbene argued the cause for appellant/cross-respondent (Chiesa Shahinian & Giantomasi PC, attorneys; Catherine P. Wells, of counsel and on the brief).
Gina Mendola Longarzo and Kara A. MacKenzie argued the cause for cross-appellant/respondent.
The opinion of the court was delivered by
SIMONELLI, P.J.A.D.
Plaintiff Robert D. Healey, a Caucasian Corrections Officer, sued defendant State of New Jersey, Department of Corrections (DOC) for discrimination, harassment, and retaliation in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. A jury rendered a verdict in favor of, and awarded damages to, plaintiff and his co-plaintiff, Joseph Milutin.1 The DOC appeals from the March 3, 2016 final judgment and orders denying various motions. Plaintiff cross-appeals from the May 17, 2016 order denying his request for additional attorney's fees, costs, and pre-judgment interest. We reverse and remand for a new trial.
The Albert C. Wagner Youth Correctional Facility (Wagner), located in Bordentown, had a satellite facility in New Lisbon known as the Strategic Reintegration Program or "Boot Camp." Boot Camp is a regimented eight-month program for non-violent offenders between the ages of eighteen and twenty-five, who are referred to as cadets. The program involves physical training and marching.
Boot Camp had two command structures -- custody and civilian. James Glover, an African-American, was head of custody at Boot Camp and Acting Chief at Wagner, the highest ranking uniformed officer. Lieutenants Trask Lyons and Patrick Schoettmer, both Caucasian, were supervisors at Boot Camp who reported directly to Glover. Below them were Sergeants Robert Ronda, a Cuban-American, Paul Miller, whose race was not specified, and John LaPierre, James Pinder, Neil Salaga, and Jim Lemley, all Caucasian. The Corrections Officers (COs) were plaintiff, Joseph Milutin, Anton Wille, and Charles LaBelle, all Caucasian, and Sultan Mohammed, Charles Winters, Shari Ducote and Joyce Butler, all African-American.
Derrick Loury, an African-American, was supervisor of Boot Camp's civilian staff, which included medical staff, counselors, teachers and secretaries. Loury reported directly to Wagner's Assistant Superintendent Michael McKeen, aCaucasian, and McKeen reported to Wagner's Administrator Bette Norris,2 an African-American. Sergeant Jelani Nyahuma, an African-American, also worked at Wagner, as did COs Steven Mellick and Richard Cheesman, both Caucasian.
In September 2004, Ronda filed a complaint with the DOC's Equal Employment Division (EED) accusing Lyons and Pinder of discrimination. Ronda also claimed that Loury said he was "going to get" him "out of [Boot Camp]" if he pursued his complaint against Lyons.
Plaintiff testified at trial that Loury asked him to testify against Ronda at the EED hearing. Plaintiff declined because he had heard Pinder refer to Ronda as "Speedy Gonzales" in a comment to Lyons. Loury "stormed away mad" after plaintiff declined to testify. Milutin testified at trial that in March or April 2005, Loury asked him to testify on the DOC's behalf and say he never heard Lyons or Pinder call Ronda "Speedy Gonzales" or "the crazy Cuban."
Milutin, who heard those comments, testified that he told Loury, "I'm not going to lie for you[,]" and Loury "lost it." Milutin and plaintiff testified that Ronda's complaint was successful. Milutin also testified that despite Ronda's success, within a year, Lyons was promoted from Lieutenant to Captain and Pinder was promotedfrom Sergeant to Lieutenant.
LaPierre testified at trial that he heard Lyons and Pinder refer to Ronda as "Speedy Gonzales" and "spic." He also gave a statement in support of Ronda's complaint and testified at the EED hearing. He said that Loury told him not to testify against Lyons and Pinder and, if he did, "something bad" might happen to him. He also said that Lyons threatened "to get [him]."
According to LaPierre, after Ronda filed his complaint, he (LaPierre) was disciplined. He explained that he and Loury discussed giving out awards, positive and negative, to the cadets. One of the awards he chose to present to two cadets on March 2, 2005, was what he called the "dickhead of the night" award. He claimed that both cadets said they deserved the award for their unspecified actions. However, as a result of presenting this award, charges were filed against him, and he was reassigned to Wagner and issued and ten-day suspension, which was later reduced to three days. He believed this disciplinary action was in retaliation for supporting Ronda.
LaPierre also testified that Loury made racial comments to him, calling him "pretty tight-ass white boy," "cracker supervisor," and "onion." He wrote a report to Lyons, dated September 22, 2004, stating that he was being subjected to a hostile work environment, and asking Lyons to intercede in the matter. Loury respondedby issuing a memo cautioning staff about creating a hostile work environment. Lyons told him he "should not be putting this kind of stuff on paper."
Plaintiff began working at Boot Camp in January 2005. He had worked for the DOC since May 1990 at Rahway State Prison before transferring to Boot Camp. He worked the second shift at Boot Camp, from 1:00 p.m. to 9:00 p.m. He testified that when he first arrived there, "everybody was walking on eggshells."
Plaintiff testified that Loury and others made racial remarks to him. Loury, Mohammed, Winters and Butler called him an "onion." Butler also once said to him and Milutin, "you onions need to stop taking my overtime" and called him a "cracker." He heard such comments anytime he or Milutin worked overtime and the comments were "deeply hurtful." He complained to Ronda, LaPierre, and Miller about being called a "cracker." Each of them said they would talk to Butler; however, Butler's comments did not stop. Winters also called him a "cracker" once or twice, and Mohammed told him he could not relate to the African-American cadets. Plaintiff also heard Ducote make racial remarks of a sexual nature, comparing the genitalia of Caucasian and African-American men and saying Caucasian men were only good for oral sex. He reported these remarks to LaPierre; however, in his deposition, he testified he did not complain to anyone about the"onion" comments.
Milutin testified that when he transferred to Boot Camp in January 2005, he saw there were racial cliques among the officers. He said,
LaPierre described the work environment at Boot Camp as "hostile," and claimed Loury would put supervisors against officers and each other and favor African-American officers and cadets over Caucasian and Latino officers and cadets. Among the officers Loury favored were Winters and Butler on the first shift and Mohammed on the second shift. LaPierre testified he received complaints from Caucasian officers, including plaintiff and Milutin, that they were called racial epithets such as "onion," "white boy" and "white devil." He brought these complaints to Loury's attention, and Loury laughed and said plaintiff and Milutin should "just take it on the chin." Loury also said it would not be in their best interest to file an EED complaint. LaPierre did not file an EED complaint because of what happened to him as a result of the report he wrote to Lyons in the Ronda matter.
LaPierre also testified he also heard Butler make racially derogatory comments towards plaintiff and Milutin, such as calling them "white boys" and "crackers." He heard Ducote say that African-American men had bigger genitalia,and told her to stop making those remarks. Ducote stopped for a while, but then continued several weeks later. He also heard Mohammed call plaintiff and Milutin "crackers," "white boys" and "white devils." He told Mohammed to stop, and he did so.
At approximately 7:00 p.m. on July 27, 2005, plaintiff, Milutin and Wille discovered that someone had stolen a soda from the unit's refrigerator. An officer could perform an instant corrective action (ICA) on an individual cadet, but needed approval if the ICA involved the entire company of cadets. An ICA consisted of physical exercises, including pushups, for forty-five to sixty-minutes, after which the cadets stood in formation. Wille spoke to Ronda, the supervisor on duty, and asked permission to do a company-wide ICA because no cadet would accept responsibility for the theft. Ronda authorized the ICA.
Plaintiff testified it was extremely hot during the day on July 27, 2005, but the weather changed between 7:00 p.m. and 7:30 p.m. when a thunderstorm came through and the temperature became "significantly cooler." The ICA began shortly after 8:00 p.m., lasted for twenty to thirty minutes, and was conducted inside because it was wet outside. The windows were open during the ICA, the fans were on, and the cadets had access to water and the bathrooms. The fans were turned off at 8:45p.m. because, according to plaintiff and LaPierre, ...
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