LAWRENCE COWARD VS. CITY OF ENGLEWOOD (L-9075-14 AND L-0965-15, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5651-16T1
LAWRENCE COWARD and
JESSIE COWARD,
Plaintiffs-Appellants,
v.
CITY OF ENGLEWOOD (its Assignees,
Delegates, Employee/s, Supervisors, and/or
Managers) and RAYMOND ROMNEY (High
Level Supervisor for Department of Public
Works, City of Englewood Petrotechnik, LTD),
Defendants-Respondents.
LAWRENCE COWARD,
Plaintiff-Appellant,
v.
CITY OF ENGLEWOOD (its Assignees,
Delegates, Employee/s, Supervisors, and/or
Managers), RAYMOND ROMNEY (High
Level Supervisor for Department of Public
Works, City of Englewood) (sued in his
official and individual capacities),
JAMES KOTH (High Level Supervisor
for City of Englewood, Department of Public
Works, City of Englewood) (sued in his
official and individual capacities), TIMOTHY
J. DACEY (City Manager City of Englewood)
(sued in his official and individual capacities),
and ARIELLE GREENBAUM SAPOSH
(Director of Human Resources) (sued in her
official and individual capacities),
Defendants-Respondents.
Argued December 12, 2018 – Decided February 7, 2019
Before Judges Koblitz, Ostrer, and Currier.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket Nos. L-9075-14 and
L-0965-15.
Eric V. Kleiner argued the cause for appellants (Eric V.
Kleiner, attorney; Eric V. Kleiner and Rudie O.
Weatherman, on the briefs).
Louis W. Childress, Jr. argued the cause for respondent
Raymond Romney (Childress & Jackson, LLC,
attorneys; Louis W. Childress, Jr., and Donald O.
Egbuchulam, on the brief).
David J. Pack argued the cause for respondents the City
of Englewood, James Koth, Timothy J. Dacey, and
Arielle Greenbaum Saposh (Hanrahan Pack, LLC,
attorneys; David J. Pack, of counsel and on the brief).
PER CURIAM
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Plaintiffs, Lawrence and Jessie Coward,1 appeal from the June 22, 2017
order granting defendants' motions for summary judgment, and the August 8,
2017 order denying their motion for reconsideration. Plaintiffs allege they were
subjected to sexual harassment, a hostile work environment, and retaliatory
conduct by their employer, defendant the City of Englewood (City), in violation
of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to - 49.
After reviewing the record in light of the contentions advanced on appeal a nd
the applicable legal principles, we affirm.
We derive the facts from the summary judgment record, viewing them in
the light most favorable to plaintiffs as the non-moving party. Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Plaintiffs, a bi-racial married
couple, were employed by different City departments at the time of the pertinent
events. Lawrence operated a sweeper truck for the Department of Public Works
(DPW); Jessie worked as a confidential secretary for the Englewood Fire
Department.
In July 2014, Jessie and a co-worker were walking to their cars in the City-
owned public parking lot when they encountered another co-worker talking with
1
We refer to the plaintiffs collectively as plaintiffs and individually by their
first names for the clarity of the reader.
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3
defendant Raymond Romney. Romney was Lawrence's supervisor at DPW.
Jessie stated Romney approached her, "look[ed] [her] up and down," and then
persistently asked "four or five times" for a hug. Jessie adamantly denied each
of these requests, until Romney declared: "If you don't give me a hug, I am going
to give Lawrence a crazy assignment tomorrow." Fearing her refusal would
result in a retaliatory action against Lawrence, Jessie complied and leaned
towards Romney for a hug. The hug lasted approximately thirty seconds (hug
incident).
In her deposition, Jessie described the hug as a side hug, indicating there
was space between their bodies but a touching of their hips. The co-worker who
accompanied Jessie stated that "[w]ith [Jessie's] right arm she hugged [Romney]
by patting his back, leaving space between them and never making physical
contact."
A few days later, Jessie contacted Human Resources (HR) to report the
incident. Fire Chief Gerald Marion, Jessie's supervisor, handled the complaint
and instructed her to file a written statement at City Hall. Before she filed her
statement, HR met with Jessie, promptly investigated the hug incident, removed
Romney from supervising Lawrence, and suspended Romney for ten days
A-5651-16T1
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without pay. In her deposition testimony, Jessie conceded Romney only
"harassed" her on this one occasion.
Following the hug incident, Lawrence claims he was retaliated against on
four occasions. The first event occurred two days after the hug incident.
Romney called Lawrence using a speakerphone and asked whether Lawrence
and a co-worker were leaving early (speakerphone incident). Lawrence replied:
"I don't know where the hell that white boy is going." Romney informed
Lawrence that using racial language was inappropriate and directed him to
apologize to the employee. After the incident was investigated by a different
HR representative than the one investigating the hug incident, HR recommended
Lawrence be suspended for three days without pay. Lawrence did not dispute
this charge.
The second incident occurred in October 2014. Lawrence filed a
complaint with HR, alleging he was previously "threatened by a Supervisor that
[he] would be put on the back of a garbage truck and for the past [three] days
and counting [he] [had] been assigned to perform as a laborer on the back of a
garbage truck" (garbage truck incident).
In response, the City proffered evidence that it was short-staffed during
the week in question. It was both a holiday week and the first week of the "leaf
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collection program," placing a heavy burden on DPW staff because collections
were done daily and "pre-approved vacation and last minute sick calls depleted
the availability of manpower." As a result, "many staff performed work that
they may not have normally been assigned to do in the course of a normal day."
The third incident occurred two weeks later. On that day, Lawrence's
truck "rolled away" and inflicted minor damage to a City tree because he was
"not present in the operator[']s position of the vehicle" (rolling truck incident).
Two workers witnessed the incident and both claimed Lawrence was distracted
because he was "on the phone via his Bluetooth earpiece." Lawrence had
received previous warnings and reprimands for wearing headphones while
operating City-owned vehicles.
The fourth incident occurred in December. Lawrence called in, during
work hours and while operating a City vehicle, to "a live radio broadcast of the
Howard Stern Show." He participated for fifteen minutes in the "worst caller of
all time" contest (Howard Stern Incident). As a result of the previous warnings
about using wireless devices while operating City vehicles, the preliminary
notice of major disciplinary charges declared: "Due to [Lawrence's] flagrant
disregard of [the] City policy[,] which jeopardizes [his] safety, the safety of [his]
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colleagues, and the safety of the general public," it was recommended he receive
a ten-day unpaid suspension.
On January 29, 2015, a disciplinary hearing was held on the rolling truck
and Howard Stern incidents. Lawrence was represented by counsel, pled guilty
to both violations, and received a ten-day unpaid suspension.
Lawrence filed four additional incident reports in support of his claim of
a hostile work environment. The reports alleged he was accused of not washing
the sweeper, was "yelled at" for being on DPW property while suspended, was
not allowed to operate the newer sweeper after his suspension, and was denied
his request to work through lunch. HR investigated each of the allegations and
found no wrongdoing on the part of the City.
Following discovery, the parties moved for summary judgment. On June
22, 2017, Judge Rachelle L. Harz granted defendants' motion for summary
judgment in a thorough, well-reasoned written decision. In dismissing Jessie's
sexual harassment claims, Judge Harz found "Romney had absolutely no
supervisory control over Jessie," and the City had promptly investigated and
reprimanded Romney.
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Lawrence's hostile work environment claim was dismissed because the
incident reports did not reach the required threshold of "severe and pervasive"
conduct. See Lehmann v. Toys 'R' Us, Inc., 13 N.J. 587, 603 (1993).
Judge Harz determined the City had not retaliated against Lawrence
because it had "demonstrated legitimate, non-discriminatory reasons for
disciplining" him for the speakerphone and garbage truck incidents. Lawrence
was also precluded from claiming retaliation for the rolling truck and Howard
Stern incidents because he did not deny wrongdoing and had representation
when he pled guilty to the disciplinary charges. Finally, Judge Harz found that
"[b]ecause all LAD claims against the City [were] dismissed . . . there [could]
be no aiding and abetting imposed upon any individual supervisors and
employees of the City."
On August 8, 2017, Judge Harz denied plaintiffs' motion for
reconsideration, finding in a written opinion that plaintiffs had failed to establish
their burden of proof for reconsideration.
On appeal, plaintiffs argue: 1) the trial court disregarded the Brill standard
and decided genuinely disputed material issues of fact; 2) the trial court erred in
dismissing their LAD claims; 3) the trial court failed to consider Romney's
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individual liability; and, 4) the trial court misapplied the law as to the City's
municipal liability.
We review a ruling on a motion for summary judgment de novo, applying
the same standard governing the trial court. Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We must consider, as the
motion judge did, "whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill, 142 N.J. at 540.
If there is no genuine issue of material fact, we must then "decide whether
the trial court correctly interpreted the law." DepoLink Court Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., 396 N.J. Super. 486, 494 (App. Div. 2007)). Issues of
law are reviewed de novo, without according deference to the trial judge's legal
conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
We are unpersuaded by plaintiffs' arguments, and affirm substantially for
the reasons expressed by Judge Harz in her June 22 and August 8, 2017 written
decisions. We add only the following comments.
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Jessie's complaint asserted sexual harassment claims against Romney. To
survive a motion for summary judgment on a sexual harassment claim, a plaintiff
must prove by a preponderance of the evidence: that she was subjected to
unwelcome sexual harassment; that the harassment was based on her sex; that
the sexual harassment was so pervasive as to alter the condition of her
employment and create an abusive working environment; and that the City knew
or should have known of the harassment, and failed to take prompt remedial
action. Lehmann, 132 N.J. at 603-04.
An employer can only be strictly liable for harassment by its employee if
the employee who commits the harassment is a supervisory employee, who is
acting within the scope of his or her employment, and the supervisor's conduct
results in a hostile work environment. Id. at 619-20.
As the trial judge noted, Jessie failed to demonstrate that Romney's
behavior was severe or pervasive. Even though a "single incident, if severe
enough, can establish a prima facie case of a hostile work environment," this
only occurs in a "rare and extreme case." Taylor v. Metzger, 152 N.J. 490, 500,
508 (1998) (quoting Lehmann, 132 N.J. at 606); (finding a single utterance of a
racial epithet was sufficient); Flizack v. Good News Home for Women, Inc., 346
N.J. Super. 150, 156, 159 (App. Div. 2001) (finding the supervisor's derogatory
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comment coupled with grabbing the plaintiff's breast was sufficient). We are
satisfied this brief isolated hug, which occurred in a public parking lot in the
presence of a third employee, does not meet the threshold required to establish
a prima facie hostile work environment claim.
In addition, it is undisputed that Romney was not Jessie's supervisor. He
was a supervisor for DPW, not the Fire Department. Therefore, the City could
not be liable for Romney's alleged harassment of a co-worker. See Heitzman v.
Monmouth Cnty., 321 N.J. Super. 133, 146 (App. Div. 1999) (stating employers
are liable for the harassment of co-workers only when the employer knew or
should have known of the harassment). There was no evidence presented that
the City had any reason to know or suspect any inappropriate behavior on
Romney's part towards Jessie or any co-worker.
Next, we consider, and reject, Lawrence's assertion that he presented a
prima facie case of a hostile work environment. To withstand the entry of
summary judgment, a plaintiff must prove by a preponderance of the evidence
"that the complained-of conduct (1) would not have occurred but for the
employee's protected status, and was (2) 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." Shepherd v.
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Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002) (citing Lehmann, 132 N.J.
at 603-04).
We are unpersuaded that the four incident reports created a hostile work
environment. Commonplace disputes are not "severe or pervasive" conduct
under the LAD. See Shepherd, 174 N.J. at 25-26. Similarly, a "general
complaint of unfair treatment" is not a claim under the LAD. Dunkley v. S.
Coraluzzo Petroleum Transporters, 437 N.J. Super. 366, 377 (App. Div. 2014)
(quoting Barber v. CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir. 1995)).
Lawrence's incident reports allege mere commonplace disputes insufficient to
establish a hostile work environment.
We also are satisfied Lawrence failed to demonstrate a prima facie case
of retaliation under the LAD. To establish a claim, a plaintiff must show: "(1)
[he] was in a protected class; (2) [he] engaged in [a] protected activity known to
the employer; (3) [he] was thereafter subjected to an adverse employment
consequence; and (4) that there is a causal link between the protected activity
and the adverse employment consequence." Victor v. State, 203 N.J. 383, 409
(2010). If the plaintiff establishes a prima facie case of retaliation, the burden
shifts to the defendant to articulate a legitimate reason for the employment
decision. Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div.
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1996). If the defendant does so, the burden shifts back, and the plaintiff must
then prove the employer's proffered explanation is merely a pretext for
discrimination. Ibid.
"[A]n employer's filing of a disciplinary action cannot form the basis of a
LAD complaint" because an "employee who has complained about
discrimination does not thereafter obtain 'immunity from . . . basic employment
policies or . . . disciplinary procedures.'" Shepherd, 174 N.J. at 26 (quoting Von
Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir. 2001)). Here, there was
unrebutted evidence that Lawrence committed actual infractions, prompting the
City's disciplinary actions.
The City has established non-discriminatory disciplinary measures were
implemented for the rolling truck and the Howard Stern incidents. "When
plaintiffs are afforded a hearing and represented by counsel, plaintiffs 'cannot
claim that . . . substantiated disciplinary charges and resulting brief suspensions
from work [are] retaliatory.'" Beasley v. Passaic Cty., 377 N.J. Super. 585, 607
(App. Div. 2005) (alterations in original) (quoting Hancock v. Borough of
Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002)). Lawrence participated in
disciplinary hearings on these respective charges with counsel, pled guilty to the
charges, and received a ten-day unpaid suspension.
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Lawrence has also failed to establish the garbage truck incident was
retaliatory. See Nabisco Foods, 290 N.J. Super. at 274. To rebut Lawrence's
claim, the City offered evidence it was short-staffed because of the holiday and
leaf collection program, requiring the remaining employees to perform different
tasks than usual. See Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 434
(App. Div. 2005) ("[N]ot every employment action that makes an employee
unhappy constitutes 'an actionable adverse action.'") (quoting Cokus v. Bristol
Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002)). Lawrence
provided no evidence to contradict the City's reasons for its actions and,
therefore, failed to establish they were merely a pretext for discrimination. See
Kolb v. Burns, 320 N.J. Super. 467, 478 (App. Div. 1999) (The plaintiff "need
only point to sufficient evidence to support an inference that the employer did
not act for its proffered non-discriminatory reasons." (quoting Kelly v. Bally's
Grand, Inc., 285 N.J. Super. 422, 432 (App. Div. 1995))).
Finally, plaintiffs' argument that Romney is individually liable is also
misplaced. There is no individual liability for aiding or abetting absent a finding
that the employer violated the LAD. Failla v. City of Passaic, 146 F.3d 149,
159 (3d Cir. 1998). As neither Jessie nor Lawrence have pled cognizable LAD
claims, Romney cannot be held individually liable.
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Plaintiffs' remaining arguments lack sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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