Timothy Burkhard v. City of Plainfield ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3173-22
TIMOTHY BURKHARD,
Plaintiff-Appellant,
v.
CITY OF PLAINFIELD and
DEPUTY CHIEF PIETRO
MARTINO,
Defendants-Respondents.
_____________________________
Argued September 16, 2024 – Decided November 1, 2024
Before Judges Sumners, Susswein and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-2356-20.
Sebastian Ben Ionno II argued the cause for appellant
(Aiello, Harris, Abate Law Group, PC, attorneys;
Sebastian Ben Ionno II, Robert D. Novicke, Jr., and
Debra Rebecca Higbee, on the briefs).
Matthew R. Tavares argued the cause for respondent
(Rainone, Coughlin & Michello, LLC, attorneys;
Matthew R. Tavares, of counsel and on the brief).
PER CURIAM
Plaintiff Timothy Burkhard appeals the May 19, 2023 Law Division order
dismissing his hostile work environment complaint against defendant the City
of Plainfield. Defendant hired plaintiff as a firefighter. In March 2020, a deputy
chief of the fire department, co-defendant Pietro Martino, 1 taught a training
course on COVID-19. Martino mocked plaintiff, who is of Asian descent, for
falling asleep during class, asking plaintiff if he "just got back from Wuhan" –
referring to the city in China then associated with the global pandemic – while
squinting his eyes in an offensive fashion to mimic the facial characteristics of
some Asian persons. Plaintiff filed suit under the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Following discovery, the trial
court initially denied defendants' motion for summary judgment but on motion
for reconsideration, determined the City had established the affirmative defense
recognized in Aguas v. State, 220 N.J. 494 (2015) and Dunkley v. S. Coraluzzo
Petroleum Transporters, 437 N.J. Super. 366 (App. Div. 2014), certif. granted,
cause remanded on alternative grounds, 221 N.J. 217 (2015), and aff'd, 441 N.J.
Super. 322 (App. Div. 2015), based on its anti-discrimination policy and its
1
Plaintiff does not appeal the March 13, 2023 order dismissing his claim against
Martino.
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response to this isolated instance of discriminatory conduct. After carefully
reviewing the record in light of the parties' arguments and governing legal
principles, we affirm.
I.
We discern the following pertinent facts and procedural history from the
record. On March 13, 2020, plaintiff and the other firefighters on his shift
attended a COVID-19 training program Martino presented. Plaintiff dozed off
during the training. Martino approached plaintiff, squinted his eyes to parody
stereotypical Asian facial features, and asked plaintiff if he had just returned
from Wuhan. Nineteen firefighters, including a battalion chief and five
lieutenants, witnessed the incident.
Plaintiff alerted his union president and vice president sometime before
his next shift, which occurred four days after the training incident. The union
officials spoke with Fire Director Kenneth Childress who requested that plaintiff
submit a letter describing the incident. Plaintiff submitted the requested letter
to Childress on March 17, 2020. Three days later, plaintiff met with Childress
who advised him that the complaint would be forwarded to human resources.
Plaintiff's battalion chief subsequently advised plaintiff he would not have
to participate in any future training that Martino was presenting. The battalion
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chief then launched an investigation, during which Martino admitted to making
the squinting eye gesture.
On April 6, 2020, plaintiff met with Childress, union representatives, and
Deputy Chief of Operations Joseph Franklin. During that meeting, plaintiff was
informed that Martino would be disciplined. Martino went on terminal leave in
advance of his impending retirement. He was never served with the letter of
reprimand that had been prepared.
On July 23, 2020, defendant filed a LAD complaint against the City and
Martino. Following the conclusion of discovery, defendant moved for summary
judgment, arguing: (1) there was no genuine issue as to any material fact; (2)
plaintiff failed to set forth a prima facie case because plaintiff failed to show his
race motivated Martino's conduct and that conduct was severe or pervasive; (3)
plaintiff's claims should be dismissed because defendant took immediate action
pursuant to its anti-harassment and anti-discrimination policies; and (4) plaintiff
was not entitled to compensatory or punitive damages.
The trial court denied defendant's motion for summary judgment, finding
that material facts were in dispute, including whether Martino's comment was
made based on plaintiff’s race and whether this one-time incident constitutes
severe and pervasive discrimination. Defendant moved for reconsideration,
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4
arguing the trial court failed to consider whether the City's anti-discrimination
policy established an affirmative defense.
After hearing oral argument, the trial court granted defendant’s motion for
reconsideration and reversed its previous decision. The trial court reiterated
material facts as to whether plaintiff was subjected to a hostile work
environment in violation of the LAD were still in dispute. On reconsideration,
however, the trial court determined defendant had an effective anti-
discrimination policy and enforced that policy promptly. On that basis, the trial
court granted summary judgment dismissal.
This appeal followed. Plaintiff contends the trial court erred in granting
reconsideration because defendant's policies were not effective in stopping the
discrimination and were not enforced promptly as Martino was never formally
reprimanded for his discriminatory conduct.
II.
We preface our analysis by acknowledging the legal principles governing
this appeal. We review a trial court's grant or denial of summary judgment de
novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). A motion for
summary judgment must be granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
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that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." R. 4:46-
2(c). "To decide whether a genuine issue of material fact exists, the trial court
must 'draw[ ] all legitimate inferences from the facts in favor of the non-moving
party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alterations in original)
(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). The key
inquiry is whether the evidence presented, when viewed in the light most
favorable to the non-moving party, "[is] sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Brill further instructs
that if the evidence in the record is "so one-sided that one party must prevail as
a matter of law . . . the trial court should not hesitate to grant summary
judgment." Ibid. (citation omitted).
Turning to substantive legal principles, our review of a hostile work
environment claim requires consideration of "the totality of the circumstances."
El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 178 (App. Div. 2005).
To establish a claim of hostile work environment discrimination under the LAD,
a plaintiff "must show that the complained-of conduct (1) would not have
occurred but for the employee's protected status, and was (2) severe or pervasive
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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." Griffin v. City of E. Orange, 225 N.J. 400, 413-14 (2016) (quoting
Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)).
In Taylor v. Metzger, our Supreme Court acknowledged that "one incident
of harassing conduct can create a hostile work environment." 152 N.J. 490, 499
(1998). However, the Court emphasized that, although it
"is certainly possible" that a single incident, if severe
enough, can establish a prima facie case of a hostile
work environment, "it will be a rare and extreme case
in which a single incident will be so severe that it
would, from the perspective of a reasonable [person
situated as the claimant], make the working
environment hostile."
[Id. at 500 (quoting Lehmann, 132 N.J. at 606-07).]
In Aguas, the Court provided further guidance on the proofs needed to
bring a hostile workplace action against an employer under the LAD. 2 220 N.J.
494. The plaintiff in Aguas asserted two LAD claims against her employer, the
2
The alleged hostile work environment in Aguas was created by sexual
harassment, not racial discrimination. In Dunkley v. S. Coraluzzo Petroleum
Transporters, we noted that "the [Aguas] Court's analysis of an employer's
vicarious liability is not limited solely to sexual harassment LAD claims.
Rather, the principles can be tailored and adopted to address allegations of other
discriminatory conduct." 441 N.J. Super. 322, 330 (App. Div. 2015).
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State of New Jersey, alleging her supervisors created a hostile work environment
by subjecting her to sexual harassment. Id. at 505-06. Those claims included a
direct claim for negligence and a vicarious liability claim for supervisory sexual
harassment. Id. at 506. The trial court found the plaintiff presented a prima
facie hostile work environment claim, but granted the State's motion for
summary judgment because the State established an affirmative defense by
showing an effective anti-harassment and discrimination policy was in place.
Ibid.
The Supreme Court held our "jurisprudence strongly supports the
availability of an affirmative defense, based on the employer's creation and
enforcement of an effective policy against sexual harassment." Id. at 514-17.
The Court embraced the Ellerth/Faragher3 test for defending claims alleging
vicarious liability for supervisory harassment. Id. at 521. It allowed employers
to assert as an affirmative defense that they adopted and enforced an effective
policy against sexual harassment, so long as the employee suffered no tangible
employment action. 4 Id. at 523-24. The Court stressed, "'[t]he efficacy of an
3
Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City
of Boca Raton, 524 U.S. 775, 807-08 (1998).
4
Plaintiff in this matter does not claim that he suffered a tangible employment
action.
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employer's remedial program is highly pertinent to an employer's defense'"
against vicarious liability under the LAD. Id. at 513 (quoting Gaines v. Bellino,
173 N.J. 301, 314 (2002)).
The Aguas majority further explained that to defend against a hostile
workplace allegation, an employer may prove:
[T]he existence of: (1) formal policies prohibiting
harassment in the workplace; (2) complaint structures
for employees' use, both formal and informal in nature;
(3) anti-harassment training, which must be mandatory
for supervisors and managers, and must be available to
all employees of the organization; (4) the existence of
effective sensing or monitoring mechanisms to check
the trustworthiness of the policies and complaint
structures; and (5) an unequivocal commitment from
the highest levels of the employer that harassment
would not be tolerated, and demonstration of that
policy commitment by consistent practice.
[Ibid. (quoting Gaines, 173 N.J. at 313).]
In Dunkley, we added, "[a]n employer is not required to meet each and
every one of these factors. Rather, it is a balance of facts and circumstances to
determine whether the employer shows 'the existence of effective preventative
mechanisms,' designed to comply with the LAD's defined purpose 'to root out
the cancer of discrimination.'" 441 N.J. Super. at 331 (quoting first Gaines, 173
N.J. at 313, and then Cicchetti v. Morris Cnty. Sherriff's Off., 194 N.J. 563, 588
(2008)).
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Our decision in Dunkley provides helpful guidance in addressing the
affirmative defense raised in the matter before us. In Dunkley, we held that
"[g]ranting all reasonable inferences to plaintiff's evidence, we reject the
suggestion Gaines, as adopted by Aguas, requires the jury to assess the degree
of effectiveness of defendant's response to plaintiff's complaints when the
discriminatory conduct admittedly was addressed and rectified. Aguas
emphasized the LAD does not impose 'strict liability.'" Id. at 333-34 (citing
Aguas, 220 N.J. at 510-11).
Relatedly, we also "disagree[d] the jury may assess or even consider
whether an employer's decision not to terminate an offending employee denotes
the discrimination policy as ineffective." Id. at 334. We concluded:
In summary, defendant, as plaintiff's employer, acted
expeditiously and effectively to prevent further racial
discrimination. No prior instances of racial slurs or
harassment were known and when plaintiff's complaint
surfaced, it was immediately addressed. "More
important, plaintiff's own report [was] he did not
experience any further discriminatory harassment and
suffered no change in his position, duties or
compensation . . . ." [Dunkley, 437 N.J. Super.] at 381-
82, 98.
We decline plaintiff's invitation to allow a jury to
evaluate its view of whether defendant's policy could
be more effective or to assess defendant's decision not
to fire the offending employee. It is neither the role of
the jury nor the work of courts to intrude so deeply into
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an employer's operational decisions. Plaintiff never
saw [the offending supervisor] again, which might
suggest he was transferred to a different site. Plaintiff's
own words demonstrate defendant's policy, as
implemented, worked and he completed his training
without encountering further derogatory or
discriminatory treatment. The legislative objective of
the LAD is to assure a commitment to end
discrimination in the workplace. See Fuchilla v.
Layman, 109 N.J. 319, 334 (1988). The facts here show
that was accomplished.
[Id. at 335-36.].
III.
Applying the rationale in Aguas and Dunkley to the present facts, we
conclude no genuine dispute of material fact exists and defendant established
the affirmative defense for purposes of summary judgment resolution of
plaintiff's LAD claim. Defendant promptly investigated the incident and
determined that Martino's conduct was inappropriate and deserving of
discipline.
Plaintiff's argument that the City's anti-discrimination policy was
ineffective because other firefighters attending the training program did not
report the discriminatory conduct does not persuade us. Nor does plaintiff's
contention that the affirmative defense was not established because the
reprimand letter was never served on Martino. The record shows Martino was
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on terminal leave and did not return to duty. The failure to transmit the
reprimand letter to an employee who was already on terminal leave does not
alter the fact that defendant promptly determined Martino's conduct was
inappropriate and deserving of discipline. Because Martino was no longer an
active member of the force, it is reasonable to assume Martino would have no
further contact with plaintiff at the workplace.
Importantly, the record clearly shows plaintiff was not subjected to
discrimination before or after the COVID-19 training incident. As we indicated
in note four, supra, plaintiff did not suffer any tangible change in his position,
duties, or compensation. Indeed, the record shows the fire department supported
him. In these circumstances, we do not believe that the failure to deliver the
written reprimand renders defendant's overall response ineffective for purposes
of the affirmative defense. Cf. Dunkley, 441 N.J. Super. at 334.
Articulated another way, issuing the reprimand letter to an employee
already on terminal leave awaiting retirement was not needed to ensure that
employee would not commit another discriminatory act in the workplace.
Furthermore, the failure to transmit the reprimand letter in these circumstances
does not signal that defendant would tolerate future workplace discrimination or
otherwise fail to enforce its anti-harassment and discrimination policy.
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In sum, on de novo review, we conclude plaintiff failed to raise a material
fact disputing the offensive conduct that gave rise to plaintiff's complaint was
promptly and effectively addressed. After reviewing the evidence in the light
most favorable to plaintiff, Brill, 142 N.J. at 540, we are satisfied the evidence
relevant to the affirmative defense is so one-sided that defendant must prevail
as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986).
Affirmed.
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