Rodriguez v. Torres, CIV. A. 97-3765 (MLC).

• Decision Date: 30 June 1999
• Docket Number: No. CIV. A. 97-3765 (MLC).,CIV. A. 97-3765 (MLC).
• Parties: Roberto RODRIGUEZ, Plaintiff, v. Rolando TORRES, Jr., individually and in his capacity as Director of the Division of Civil Rights, Defendant.
• Court: New Jersey Supreme Court

60 F.Supp.2d 334

Roberto RODRIGUEZ, Plaintiff, v. Rolando TORRES, Jr., individually and in his capacity as Director of the Division of Civil Rights, Defendant.

No. CIV. A. 97-3765 (MLC).

United States District Court, D. New Jersey.

June 30, 1999.

Stephen M. Latimer, Loughlin & Latimer, Hackensack, NJ, for Plaintiff.

Jeffrey Burstein, Deputy Attorney General, Office of New Jersey Attorney General, Division of Law, Newark, NJ, for Defendant.

MEMORANDUM OPINION

COOPER, District Judge.

This matter comes before the Court on defendant Rolando Torres's ("Torres") motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons expressed below, the motion is granted in part and denied in part.

BACKGROUND

This litigation stems from plaintiff Roberto Rodriguez's ("Rodriguez") employment with the New Jersey Division on Civil Rights ("DCR"), the New Jersey state agency which enforces the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. ("N.J.S.A.") § 10:5-1 et seq. Rodriguez claims that defendant Torres denied plaintiff a promotion to the position of "Administrative Analyst 1" in June 1997 and subjected plaintiff to a "hostile work environment" because of plaintiff's involvement in the following activities: (1) an organization called the Hispanic Council of New Jersey ("HISPAC"), (2) administrative complaints filed by HISPAC against various state agencies, and (3) "his civil rights and political activities on behalf of Hispanic people." (Am. Compl., Count I ¶ 39 (denial of promotion), Count II ¶ 44 (hostile work environment).) Plaintiff has instituted this suit pursuant to 42 U.S.C. § 1983, alleging that defendant's retaliatory conduct (i.e., the denial of the promotion in June 1997, and the creation of a hostile work environment) violated plaintiff's First Amendment right of free speech and association. Plaintiff's Amended Complaint also asserts pendent state claims under the free speech and petition provisions of the New Jersey Constitution, (id. Count III (citing Article I, ¶¶ 6, and 18 of N.J. Const.)), and the anti-retaliation provision of the NJLAD. (Id. Count IV (citing N.J.S.A. § 10:512(d)).)

The facts presented to the Court in connection with this motion are abundant, and we will highlight only those which we find germane to the disposition of this matter.¹ Plaintiff began his employment with DCR in 1986. Defendant and plaintiff became acquainted with one another in or around the summer of 1986 at a HISPAC function. (Torres Dep. at 18; Rodriguez Dep. I at 86-87.)

Defendant Torres has been the Director of DCR since September 1995. From July 1990 to September 1995, Torres held the position of Assistant Director of DCR in charge of the "Bureau of Enforcement." (Torres Aff. ¶ 1.) Prior to Torres's appointment as Director of DCR in 1995, HISPAC was involved with the appointment of a new Director of DCR for the Whitman administration. (Torres Dep. at 99.) HISPAC advocated for the appointment of an individual of Hispanic national origin. (Id.; Rodriguez Dep. I at 127.) Eventually, after HISPAC's lobbying efforts, Torres was appointed to the position. Torres is of Hispanic national origin; he was born in Puerto Rico. (Torres Aff. ¶ 4.)

Prior to Torres's appointment as Director, HISPAC filed administrative complaints before DCR in April 1995 against 30 New Jersey agencies and officers alleging broad-based discrimination against Hispanics in hiring and promotions. DCR was not one of the state agencies charged as a respondent. Rodriguez, as secretary/treasurer of HISPAC, was an individual complainant in the HISPAC litigation.

Currently, Rodriguez holds the title of "Administrative Analyst 2" with DCR, a position that he has held since January 1993. As an Administrative Analyst 2, plaintiff was in charge of one aspect of DCR's computer operations, the "case tracking system," which involved docketing of administrative complaints filed with DCR. (Rodriguez Dep. II at 32; Torres Aff. ¶ 9.)

Shortly after becoming DCR Director, Torres decided to coordinate the separate computer operations of DCR. The implementation of the structural change coincided with a leave of absence requested by plaintiff which was to begin on December 1, 1995. During plaintiff's leave of absence, plaintiff sought employment in Arizona. He received an interview for a position, but did not obtain a job offer.

When plaintiff began his leave of absence, Torres assigned Ralph Menendez to operate and manage the case tracking system formerly managed by plaintiff, in addition to Menendez's computer-related responsibilities at DCR. In May 1996, while plaintiff was on leave, Torres decided to consolidate the various computer functions and put them under Menendez's control on an interim basis. Unlike the previous structure, Menendez, as a manager of the unit, reported directly to Torres.

Plaintiff extended his leave beyond the initial six month time period, and returned to DCR in October 1996. Plaintiff returned to his position as Administrative Analyst 2, at a salary higher than when he left for his leave of absence.

Meanwhile, at various points in 1996, all the state respondents in the HISPAC litigation moved for dismissal. On March 3, 1997, Torres granted respondents' motions without prejudice. On April 21, 1997, HISPAC filed a Notice of Appeal of Torres's dismissal with the New Jersey Superior Court, Appellate Division. That same day, HISPAC held a press conference concerning DCR's dismissal of the HISPAC complaints, which took place at the State House at 11:00 a.m.

Plaintiff wanted to attend the press conference. In order to enable him to do so, plaintiff informed Torres's secretary that he would take his lunch hour early that day. Torres became aware that plaintiff took an early lunch hour to attend the press conference. When plaintiff returned to the office, Torres told plaintiff that he could not take an early lunch hour to attend non-agency political-type work without using vacation time. Torres indicated that plaintiff's actions contravened state policy. Accordingly, plaintiff applied for the use of vacation time for his attendance at the meeting and Torres approved plaintiff's request. (Torres Aff. ¶ 8(b).)

In or about the Spring of 1997, Torres implemented the reorganization of DCR's computer functions by creating a new employment position to oversee and coordinate the operations which Menendez had been performing on a temporary basis since May 1996. Torres posted a "notice of unclassified job vacancy" on May 13, 1997 for the position of "Administrative Analyst 1." Four DCR employees applied for the position: (1) plaintiff; (2) Menendez; (3) Nancy Castro; and (4) Bernice Green. Torres decided to interview the first three candidates for the position.

Because of the restructuring undertaken while plaintiff was on leave, plaintiff's day-to-day responsibilities were different than they had been prior to his leave of absence. (Rodriguez Decl. ¶ 6.) Upon plaintiff's return, Menendez assigned plaintiff to two computer-related assignments on or about November 8, 1996. The evidence reveals that plaintiff had problems completing the assignments in a timely fashion. (Rodriguez Dep. at 110.) It appears that Menendez was experiencing problems communicating with plaintiff concerning the timely completion of the two projects assigned to him. Finally in or around the second week in May 1997, Menendez and Torres met to discuss plaintiff's failure to complete the assignments given by Menendez in a timely manner. (Menendez Dep. at 78-79.) At that time, plaintiff had just completed one of the projects assigned to him.

Plaintiff met with Torres, John Superak, Menendez and plaintiff's union representative on May 29, 1997 to discuss plaintiff's problems in completing the assignments. (Id. at 83.) At the time of the meeting, there was either perceived or real tension between plaintiff and Menendez. (Torres Dep. at 135.) Plaintiff testified at his deposition that he told Torres that he felt as if he were being retaliated against because of his membership in HISPAC; Torres assured him that he was not being mistreated. (Rodriguez Dep. III at 29-38; see also Torres Dep. at 133-141.) Plaintiff also stated that Torres indicated to plaintiff that he was unhappy with plaintiff's attitude and conduct since plaintiff returned from leave. Torres indicated his displeasure with the tone of a memorandum written by plaintiff and directed to Menendez earlier in May 1997. (Rodriguez Dep. III at 37-40; Torres Dep. at 133.)

Approximately one week later on June 5, 1997, the interviews for "Administrative Analyst 1" took place. Dean Deakins, Manager of Data Processing Services of the Department of Law and Public Safety, and Katrina Wright, DCR Assistant Director for Community Relations, conducted the interviews on Torres's behalf. After interviewing the three candidates, Deakins and Wright agreed that Menendez was the best qualified candidate, and recommended to Torres that Menendez be selected. (See Wright Aff. ¶ 2; Deakins Aff. ¶ 3; Deakins Aff., Ex. 1.) Consequently, Torres selected Menendez for the position of Administrative Analyst 1. This employment action forms the basis of Count I of plaintiff's Amended Complaint.

Torres articulated three reasons for selecting Menendez for the position. First, Torres relied upon the unanimous recommendation of Deakins and Wright. Second, Torres believed that Menendez was superior to plaintiff in his ability to develop and utilize computer software and create a linked comprehensive information system for DCR. Finally, defendant believed that Menendez had superior abilities to plaintiff in managing employees and in interacting with other DCR managers. (Torres Aff. ¶ 12.)

Plaintiff alleges in addition to the promotion issue, that he was subjected to a "hostile work environment" at DCR because of his affiliation with HISPAC. At his deposition, plaintiff pointed to the following conduct in...