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Plaintiffs' Summary Judgment Brief
Plaintiffs' Summary Judgment Brief
1 – 7. Admitted.
8. Admitted that the three individual defendants have jointly retained one attorney,
Joseph A. Carmen, Esquire, to represent them. They have not retained separate attorneys for
each of them.
Associate Director of Human Resources and Vivian Fernandez, Associate Vice-President for
Human Resources, at various times between March 2007 and June 2007. (Exhibit B,
Exhibit E, Deposition of Harris, T49-20 to 50-6 and T51-2 to 51-7; Exhibit J, Deposition of
Gordon, T53-19 to 54-20). The matter was not promptly referred to the acting Affirmative
Section IV; Exhibit J, T52-7 to 53-18) It was not investigated at all until Fernandez was
10. Admitted that these are some, but not all, of the plaintiffs’ allegations.
11. Admitted that Officer Shockley heard this from Sergeant Fleming, as well as
12 – 16. Admitted.
17. DENIED. Admitted as to falling asleep in patrol car, as most officers have, but
denied that he was ever disciplined for falling asleep. (Exhibit B, T78-17 to 79-9)
18. Admitted.
19. Admitted.
indicates that while McCullough may have been present, the verbal exchange only
involved Mastrosimone.
22. Admitted.
23. Admitted.
24. DENIED. Shockley testified that he was targeted by the officer. (Exhibit B,
T72-11 to 19)
25. Admitted.
26. Admitted.
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27. DENIED. Initially, Shockley was alone. Security Officer Evans responded on
his own. Police officers Scully and Lacocious did not respond at all even though
they were not on a specific detail at the time. (Exhibit B, T62-24 to 63-4; T64-7
to 19)
28. DENIED. Evans and Harris did not leave their “posts”. The excerpt cited by the
defendant does not support this assertion. In fact, at that time, Evans and Harris
29. DENIED. Evans and Harris did not leave their “posts”. See response to #28
above.
30. Admitted
31. DENIED. Evans and Harris did not leave their “posts”. See response to #28
above.
33 – 40. Admitted.
42 – 44. Admitted.
45. DENIED that Mastrosimone and McCullough were actually suspended, admitted
as to other assertions.
46. Admitted.
47. DENIED.
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b) Police Officer Anthony Fresco did not receive diversity training.
48. DENIED as stated. The excerpt cited by the defendant does not support the
fact(s) asserted. Admitted that shifts were changed to assure that Scully,
McCullough and Mastrosimone did not work with Shockley, Evans, or Harris,
49. DENIED. (Exhibit B, T134-10 to 135-8, T196-8 to 16; Exhibit D, T76-8 to 77-5;
50. DENIED. Defendant did not take prompt and remedial action. See response #9
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ADDITIONAL MATERIAL FACTS
Evidence of bad (discriminatory) conduct of which plaintiffs have first hand knowledge.
52. Almost from the beginning of his employment, Shockley was given the “cold
53. Scully would talk to Shockley very rudely and would assign him the harder
tasks on a shift, such as walking detail rather than riding in a vehicle. (Exhibit B, T65-7 to
66-8)
55. From the time Shockley was hired, the individual defendants ignored him,
refusing to even acknowledge his hello or goodbyes when entering and leaving a room.
56. Shockley has been sent on calls without the appropriate back up including an
“assault call” on August 12, 2007. (Exhibit P, page 9; Exhibit O, T91-19 to 92-22)
57. Shockley was addressed by Scully in a manner different from other officers
which was disrespectful and he was yelled at in front of his peers for asking questions.
(Exhibit P, page 9)
58. Shockley was falsely accused by the individual defendants of sleeping on the
59. Police Officer Lopez has witnessed the disparate treatment toward Officer
Shockley, including the failure to answer questions, the failure to interact, and publicly
criticizing Shockley’s police reports. (Exhibit P, page 9; Exhibit O, T33-17 to 34-18 and
T39-9 to 41-21)
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60. Sergeant Bell also observed that Shockley was treated differently by the
61. Evans and Harris were treated differently by the individual defendants and
without respect, ignored, and given “the invisible man” treatment. (Exhibit P, page 2;
62. Evans and Harris are publicly reprimanded for actions for which other
63. Evans and Harris were falsely accused by McCullough of sleeping on the job.
64. Security Officer Nazario observed that the individual defendants treat
plaintiffs Harris and Evans differently in scrutinizing their work and using a different set of
65. The individual defendants “keyed” radio calls from Harris and Evans in order
66. Shockley, Harris, and Evans are the only African-Americans working in
67. Shockley heard that he was called “Tubbs” when he worked with white
42-12)
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68. Shockley heard that a fellow officer (Lacocious) referred to him using “the N
69. Shockley heard that he and Fleming were referred to as “salt and pepper”.
70. Scully does not speak rudely to others who are not African-American.
71. Sergeant Bell observed that another officer who was not African-American,
(Russomano), who had been hired at the same time as Shockley was welcomed with open
72. Officer Lopez also observed that Shockley was not treated the same as
73. The individual defendants referred to Harris and Evans with the derogatory
nicknames “chocolate chips” and “shadows”. (Exhibit O, T20-16 to 23-9; Exhibit P, pages 3
and 4)
74. The individual defendants discussed how they would “catch these fuckers
75. The individual Defendants have continued to treat plaintiffs with anger and
resentment since their Complaints of November 2007. (Exhibit B, T134-10 to 135-8, T196-
8 to 16; Exhibit D, T76-8 to 77-5; Exhibit E, T62-4 to 63-19, T74-7 to 75-6; Exhibit O, T66-
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76. Shockley has been told by other employees to “watch [his] back because these
guys are after you”, referring to Scully, Mastrosimone, McCullough, and Lacocious.
77. Sergeant Montalvo has observed retaliatory conduct by the defendants against
the plaintiffs and the failure of an unequivocal commitment from the top to enforce the anti-
80. Early in his career at TCNJ, Shockley went to both Lieutenants Rizzo and Bell
81. Sergeant Bell reported disparate treatment to Lieutenants Rizzo and Lopez.
82. Evans had previously reported to Kathy Leveton, director of the police
department, that he had been subjected to racial discrimination. (Exhibit D, T74-4 to 24)
Associate Director of Human Resources and Vivian Fernandez, Associate Vice-President for
Human Resources, at various times between March 2007 and June 2007. (Exhibit B, T199-
13 to 200-19; Exhibit D, T70-18 to 73-2; Exhibit E, T49-20 to 50-6 and T51-2 to 51-7;
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84. The matter was not promptly referred to the acting Affirmative Action officer
85. It was not investigated at all until Fernandez was instructed to do so by Vice
Evidence that the anti-discrimination policy was not followed and was not effective.
86. Each state agency is required to distribute its policy every year, or a
87. The policy was not distributed annually to Donald Gordon. (Exhibit J, T48-10
to 49-1)
88. The policy was not distributed annually to defendant Scully. (Exhibit G, T21-
18 to 22-6)
89. The policy was not distributed annually to defendant Mastrosimone. Exhibit
H, T7-13 to 17)
90. The policy was not distributed annually to Sergeant Montalvo. (Exhibit N,
T13-14 to 14-19)
91. There are no mechanisms in place at The College of New Jersey to monitor
92. Each agency is required to provide all new employees with training on the
93. Employees Scully, Montalvo, Nazario, Fresco, and Shockley did not recall
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94. Each agency is required to provide supervisors with training on a regular
95. Employee Gordon, Associate Director of Human Resources, did not receive
refresher training in the entire 15 years he was employed. (Exhibit J, T50-12 to 51-11)
96. Defendant Scully did not receive supervisor or refresher training. (Exhibit G,
T23-2 to 24-10)
97. Defendant Mastrosimone did not receive refresher training at any time
98. Defendant McCullough did not receive refresher training at any time between
99. Even after the findings made by Associate Vice President Fernandez and Vice
President Heuring, defendant Scully was pulled aside by the Chief Collins, Captain Grant,
Lieutenant Lopez, and Sergeant Bell and told by them that the discipline imposed was
unwarranted and the findings were not just. (Exhibit G, T53-1 to 54-12)
100. Even after the findings made by Associate Vice President Fernandez and Vice
President Heuring, defendant Mastrosimone was reassured by Chief Collins and Lieutenant
Lopez he and the other defendants had not done anything wrong and that the discipline that
was meted out was unwarranted and unfair. (Exhibit H, T14-13 to 15-10)
101. Even after the findings made by Associate Vice President Fernandez and Vice
President Heuring, defendant McCullough was told by Chief Collins, Captain Grant, and
Lieutenant Lopez that they felt it was an “injust” [sic] action, didn’t think the whole thing
was right, didn’t think that the anti-discrimination policy had been violated, and that the
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102. Gordon agreed that if such statements were true they would demonstrate that
there was not an unequivocal commitment from the top to enforce the anti-discrimination
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PLAINTIFF’S STATEMENT OF MATERIAL FACTS IN SUPPORT OF THEIR
CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
103. As a result of the Fernandez investigation, (Exhibit P), the defendant TCNJ
104. As a result of the Fernandez investigation, (Exhibit P), the defendant TCNJ
105. As a result of the Fernandez investigation, (Exhibit P), the defendant TCNJ
106. All three defendants were specifically found to have violated N.J.A.C. 4A:2-
2.3(a)(9), discrimination that affects equal employment, in response to the complaints filed
107. The defendant TCNJ held hearings, made findings, and imposed discipline
108. This finding of disparate treatment was confirmed by the President of the
Shockley, Evans and Harris. (Exhibit U, response to First Count, paragraphs #3, #4; Exhibit
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LEGAL ARGUMENT
A motion for summary judgment should only be granted where no rational juror
could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie
element of a cause of action. Godfrey v. Princeton Theological Seminary, 196 N.J. 178,
197 (2008). To demonstrate a “hostile environment” claim a plaintiff need only produce
sufficient evidence from which a jury could conclude that the complained of conduct was
abusive working environment. Lehmann v. Toys R Us, Inc., 132 N.J. 587, 608 (1993).
Rather than considering each incident in isolation, courts must consider the cumulative
effect of various incidents, bearing in mind that each successive episode has its
predecessors, that the impact of separate incidents may accumulate, and that the work
environment created may exceed the sum of the individual episodes. A discrimination
analysis must concentrate not on individual incidents but on the overall scenario.
Lehmann, at 607.
In this case the plaintiffs have adduced evidence of conduct of which they have first
hand knowledge that goes well beyond the bounds of mere civility:
1) They have been falsely accused of sleeping on the job (Facts 58 and 63 above);
2) They have had their radio communications intentionally garbled (Fact 65 above);
3) They have been denied appropriate “back-up” when performing dangerous duties
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4) They have been unnecessarily publicly humiliated and reprimanded, in the presence
All of this conduct is in addition to the day to day conduct, which occurred over a period
of years, of refusing to communicate or interact, giving the “cold shoulder” and “invisible
man” treatment, and failing to treat the plaintiffs with appropriate respect as members of
a security force entrusted with protecting college students and staff. That this conduct is
In addition to the first hand knowledge of the plaintiffs set forth above, the plaintiffs
have adduced evidence through other witnesses of the use of derogatory racial nicknames
and epithets which were not used in their presence. The purpose of this evidence is to
demonstrate that the discriminatory conduct experienced by the plaintiffs was race based.
In addition, once they had knowledge that their supervisors were using these terms, it was
reasonable for them to believe the work environment had been poisoned in that the
In light of the above argument, the plaintiffs respectfully submit that they have more
conduct and a prima facie case of racial discrimination in violation of the New Jersey
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Law Against Discrimination. Accordingly, the defendant’s motion on this issue should be
denied.
The “Bouton Shield” relied upon by the defendant is the affirmative defense
defense, a material issue of disputed fact on the motion record can deny a defendant
summary dismissal on that defense. Gaines, at 333. Here there are serious material
issues concerning the effectiveness of the College’s policy, and whether it was even
followed:
as required;
required;
required;
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their department that they believed the findings and discipline
Associate Vice President Vivian Fernandez, in March – June of 2007, were not
complaints may have had on the individual defendants. (Exhibit E, T49-22 to 50-6)
The complaints were investigated until Vice President Heuring referred the
complaints made directly to him to Vivian Fernandez, months later, in late October
2007. In light of the above material facts, the defendant’s motion for summary
contends that there is an absence of any evidence of retaliation against the plaintiffs.
There is evidence that Shockley was assigned extra work (Exhibit B, T171-16) and
that he lost overtime assignments. (Fact 51 above) Evans and Harris continue to be
ostracized. (Exhibit D, T76-8 to 77-5; Exhibit E, T62-4 to 63-19, T74-7 to 75-6) The
chief attempted to discipline Shockley in clear violation of the “45 day rule”. (Exhibit
B, T84-15 to 89-15). The plaintiffs have adduced proof of retaliatory behavior, not
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only from their own testimony (Facts 49, 75 above) but also from the testimony of
Sergeant Montalvo:
Oh. I would think being forced to work for these guys and
promoting any all directly involve with -- that it's kind of
contributory to, you know, Hey, you're saying this is wrong but
yet you're going to force them to be in an uncomfortable almost
hostile work environment on a daily basis. (Exhibit N, T52-3)
In light of these proofs, which create material issues of facts on the issue of
retaliation, the defendant’s motion for summary judgment on this issue should be
denied.
In Cavuoti v. New Jersey Transit Corp., 161 N.J. 107 (1999), the Supreme Court
held that a public entity may be liable for punitive damages if there is willful
indifference to the wrongful conduct on the part of upper management, and proof that
discriminatory behavior, over years, and the failure to follow and enforce even the
Associate Human Resources Director Gordon not only failed to report complaints of
discrimination, but actively sought to squelch the complaints because of the perceived
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impact it may have on the wrongdoers. (Exhibit E, T49-22 to 50-6) A jury could
second highest ranking person within the College’s Human Resources Department.
by the policy;
The evidence of the reaction and conduct of Chief Collins, Captain Grant, and
Lieutenant Lopez is especially problematic for the College. There could not be any
clearer evidence of “willful indifference” than the testimony of all three individual
defendants, that the highest ranking officers on the force do not support the findings
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who observed that “stuff gets swept under the rug” by Chief Collins, that enforcement
of the policy is not taken seriously, and that even in light of the complaints and
findings of racial discrimination “they’re just going on about business like it was no
The question of whether an alleged victim of racial harassment has alleged the
F. Supp. 2nd 393, 438 (D.N.J. 2003). In light of the evidence of both “active
participation” and “willful indifference”, the defendant’s motion for dismissal of the
The doctrine of judicial estoppel bars a party to a legal proceeding from arguing a
position inconsistent with one previously asserted in another court or proceeding. State,
Dept. of Law & Public Safety v. Gonzalez, 142 N.J. 618, 632 (1995); Stretch v. Watson, 6
N.J. Super. 456, 469-470 (Ch. 1949). In the disciplinary proceedings instituted against the
individual defendants pursuant to New Jersey Civil Service regulations, the College took the
position that each of the defendants violated N.J.A.C. 4A:2-2.3(a)(9). The defendant TCNJ
held hearings, made findings, and imposed discipline against defendants Scully,
Mastrosimone, and Scully. All three defendants were specifically found to have violated
complaints filed by plaintiffs Evans, Harris, and Shockley. This finding of disparate
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treatment was confirmed by the President of the College, R. Barbara Gitenstein. Thus, the
College is precluded from arguing in this matter that the plaintiffs were not discriminated
against by the individual defendants on the basis of the plaintiffs’ complaints of racial
discrimination.
The First Count of the Complaint alleges racial discrimination against the College by
reason of the actions of Scully, Mastrosimone, and McCullough. The College is strictly
liable for violations of NJLAD by supervisory employees. Lehmann v. Toys R Us, Inc.,
Evans and Harris. Accordingly, the plaintiffs are entitled to partial summary judgment as to
CONCLUSION
In light of the foregoing argument, the defendant’s motion should be denied in its
entirety and the plaintiffs are entitled to partial summary judgment as to the First Count of
By: __________________________________
MARK PFEFFER, ESQUIRE
Dated: September 2, 2010
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