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52 LETTER OPINION NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS January 27, 2010 Mark Mulick, Esq. Mark Mulick, Esq., P.A. 50 Church Street Montclair, N.J Sharon H. Moore, Esq. Gebhardt & Kiefer, P.C Route 31, P.O. Box 4001 Clinton, N.J Richard P. Flaum, Esq DiFrancesco, Bateman, Coley,Yospin Kunzman, Davis & Lehrer, P.C. 15 Mountain Boulevard Warren, N.J Re: Walter Brooks and Peter Davis v. Twp. of Springfield Police Dept. Docket No. UNN-L Dear Counsel: This matter comes before the court on a motion for summary judgment as to Plaintiff Walter Brooks brought by Sharon H. Moore, Esq. of Gebhardt & Kiefer, P. C. on behalf of Defendant Township of Springfield Police Department, ("Police Department"), as to the claims remaining after the entry of an Order granting Partial Summary Judgment as to the Defendant Police Department and granting Summary Judgment on all claims as to Defendant Chisholm on August 26, Bruce H. Bergen, Esq. of Krevsky, Silver & Bergen, filed a cross-motion for summary judgment on behalf of the Police Department on the remaining uninsured claims of plaintiff Brooks as to intentional infliction of emotional distress and punitive damages, essentially joining in the motion filed by Ms. Moore. On January 8, 2010, oral argument was conducted, and Richard P. Flaum, Esq. of DiFrancesco, Bateman, Coley 1

53 Yospin, Kunzman, Davis & Lehrer, P.C. appeared on behalf of the Police Department on the uninsured claims pursuant to a Substitution of Attorney filed earlier that morning, The motions are opposed by counsel for Plaintiff Brooks, Mark Mulick, Esq. of Mark Mulick, Esq., P.A. Following the decision of the New Jersey Supreme Court in Roa v. Roa, N.J. (2010), counsel submitted additional letter memoranda which have been considered. For the reasons set forth below, the Defendant's motions have been granted as to Counts One and Two of the Second Amended Complaint and denied without prejudice as to Count Three. I. Findings of Fact. The following findings of fact that were made in the Letter Opinion which accompanied the Order of Partial Summary Judgment entered on August 26, 2009 are included here because they are relevant to the remaining claims brought by the Plaintiff. In 1996, Walter Brooks, a plaintiff in this matter and an African-American, filed a lawsuit against the Township of Springfield, Chief William Chisholm, and other defendants, in which he contended that he had been unfairly disciplined based on his race. On August 3, 1999, Walter Brooks signed a Stipulation of Settlement in the matter which contained a provision that he would be assigned to the Detective Bureau for a minimum of twelve months and that: At any time subsequent thereto, the Plaintiff will be subject to reassignment dependent upon Plaintiffs performance of the duties of the new position and the staffing and other needs of the Springfield Police Department. Such reassignment shall be in writing, and will be without recourse, and shall be non-appealable, non-grievable, and

54 not reviewable in a Court of Law. After serving in the Detective Bureau for approximately fourteen months, Walter Brooks was reassigned back to patrol in October of He did not challenge the reassignment contemporaneously. On October 1, 2007, Walter Brooks filed the complaint in this action alleging that he had been discriminated against by the Township of Springfield and Chief Chisholm under the New Jersey Law Against Discrimination, ("LAD"). N.J.S.A. 10:5-1 et seq. Mr. Brooks was subsequently permitted by the court to amend his complaint twice. His claims for violation of the LAD were that he was subjected by the defendants to a hostile work environment, disparate treatment, and retaliation. In the Order entered on August 26, 2009, this Court rejected the claims by Mr. Brooks that he was subjected to a hostile work environment on a continual basis before and after September 30, As a result, this Court found that any allegations of a hostile work environment prior to that date were barred by the statute of limitations. This Court further rejected Mr. Brooks' claim that he was subjected to a hostile working environment based on his race and in retaliation for his prior action against the Township within the two years prior to the filing of his Complaint on October 1, 2007, and dismissed all of his claims under the LAD, except his claim that his transfer out of the Detective Bureau was retaliatory in violation of the LAD and the Third Count of the Second Amended Complaint which alleged retaliatory action in violation of the LAD after the Complaint was filed. In the Letter Opinion which accompanied the Order of August 26, 2009, this Court held that the transfer should be considered a discrete act by the Defendant employer, and 3

55 that the statute of limitations therefore began to run from the date of the transfer in October of However, because of the paucity of the record related to the Plaintiff s claim that equitable tolling and the discovery rule should apply, this Court provided for a period of 60 days of further discovery related solely to that issue, after which motions related to the statute of limitations could be filed. Counsel for the Defendant Police Department has advised the court that no additional discovery has been conducted during the period allotted. However, Mr. Brooks has submitted a Certification in opposition to this Motion dated December 3, 2009, in which he states that the attorney who represented him during his first civil rights lawsuit against the Township never informed him that the provision of the Stipulation of Settlement concerning the non-reviewability of his transfer from the Detective Bureau was unenforceable. Rather, the attorney advised him that it was enforceable, and that if he signed the agreement, he would have no recourse if he were transferred from the Detective Bureau after the minimum twelve month period. The attorney also advised Mr. Brooks that the Township would not settle the case unless he agreed to that language. Mr. Brooks has further certified that a month or two after entering into the Stipulation of Settlement, he attempted to contact the prior attorney about another matter, but the attorney never returned his calls, and although Mr. Brooks attempted to retrieve his file, he was not able to do so. Mr. Brooks also certified that because he believed that the language of the Stipulation clearly established that he had no recourse of any kind if he were transferred out of the Detective Bureau after the minimum period, he did not seek the opinion of any other attorney until he contacted his present attorney about a new 4

56 claim of a hostile work environment, prior to the filing of this Complaint on October 1, In his Complaint, Mr. Brooks alleged that the day that he received the letter transferring him back to patrol, Chief Chisholm took him to the scene of a Halloween display in the Township that included the body of an African-American man hanging from a tree. In his Certification of December 3, 2009 in opposition to this motion, Mr. Brooks added that Chief Chisholm orally notified him of his transfer out of the Detective Bureau when the Chief drove him to this scene, and that Mr. Brooks understood the Chiefs action to be a threat to his life. Police reports prepared by the Plaintiff and others reveal that this incident took place on October 4, 2000, and involved a Halloween display which included a dummy that had a dark bag for a head. The Halloween display was brought to the attention of the Springfield Police Department by Judy Lucas of the Newark Star Ledger. Officer Brooks' supplementary investigation report indicates that Ms. Lucas spoke to him, that he advised Chief Chisholm of her concern, and then he and the Chief went to the site to view the display. The Department's bias officer also responded to the scene; however, by that time, the homeowner had already removed the dummy, having learned from Ms. Lucas that some people found it offensive. Mr. Brooks did not make any contemporaneous complaint about the Chiefs action in requesting that the Plaintiff accompany him to the scene. In support of the Plaintiffs claim that his transfer out of the Detective Bureau was in retaliation for bringing the prior lawsuit against the Township, the Plaintiff alleges that the Defendant Police Department violated the Stipulation of Settlement by transferring 5

57 him out of the Detective Bureau to patrol, despite his satisfactory performance, and by assigning Captain Vernon Peterson, who was the focus of the Plaintiff's first lawsuit, to supervise him. Mr. Brooks contends that while serving in the Detective Bureau he was required to share a small office, and was not given a telephone, a pager, or a walkietalkie. He further contends that despite outstanding performance evaluations as a detective, he was transferred out of the Detective Bureau to patrol because of a lack of manpower. However, one week after his transfer out of the Detective Bureau, the Plaintiff's position was filled by an officer who had previously served in the patrol division. Officer Brooks contends that normally police officers are transferred to the Detective Bureau for a lot longer than one year, and that some transfers to that bureau have been for as long as six years. Richard Sheola, the former Township Administrator of the Township of Springfield during 2000, has submitted a Certification in support of the Defendant's motion, in which he stated that prior to the settlement reached with the Plaintiff, the Detective Bureau was fully staffed with five officers and a Captain. However, in order to accommodate the terms of the Settlement Agreement, the Detective Bureau was increased in size to include six officers plus the Captain, and the patrol force was reduced by one officer. Administrator Sheola has certified that the decision as to whether the Plaintiff would remain in the Detective Bureau after the minimum period of twelve months was his to make, and was to be based on staffing and similar considerations. Mr. Sheola certified that in September of 2000, after the twelve month minimum period had been completed, Chief Chisholm approached him and indicated that the Detective Bureau was overstaffed, and that he needed experienced patrol officers because there had been 6

58 some retirements, and several new officers had been added in 2000 who were inexperienced and required supervision and assistance from more experienced officers when out on the road. Administrator Sheola further certified that since the Plaintiff was an experienced patrol officer, and since it has always been Mr. Sheola's philosophy that different patrol officers should be rotated through the Detective Bureau as the experience of learning how crimes are solved makes them better patrol officers, he discussed the situation with the Chief and determined that Officer Brooks would be the best candidate to transfer to patrol at that time based entirely on staffing needs, and not because of the Plaintiff's race or his having previously filed a lawsuit against the Township. Mr. Sheola further points out that as a result of the transfer, the Detective Bureau returned to its former size of five officers plus the Captain, and that the Chief has continued to rotate patrol officers through the Detective Bureau and then back to patrol. Clearly, there is a material dispute of fact with respect to the reason why the Plaintiff was transferred out of the Detective Bureau back to patrol after the minimum twelve month period included in the Stipulation of Settlement. II. Legal Discussion. A. The Plaintiff Has Established a Prima Facie Case That His Transfer Out of the Detective Bureau in October of 2000 Was Retaliatory Under the LAD. In the Letter Opinion which accompanied the Order of August 26, 2009, this Court has already found that there is no dispute in this case that Officer Brooks filed a complaint for racial discrimination against the Township of Springfield which was settled with the provision that he would be assigned to the Detective Bureau, but that he could be 7

59 reassigned out of the Bureau under the conditions described in the Stipulation of Settlement. To establish a prima facie case of retaliation under the LAD, a plaintiff must show that he was engaged in a protected activity the employer knew about, he was subjected to a subsequent adverse employment action, and there was a causal connection between the two. Romano v. Brown & Williamson Tobacco Corp., 284 N.J.Super. 543, (App. Div. 1995). This Court found in the previous Letter Opinion that the Plaintiff had a protected status under the LAD as a result of filing and settling his prior complaint against this same Township based on racial discrimination, and that, giving the Plaintiff the benefit of all of the favorable inferences of his allegations with respect to the transfer for purposes of summary judgment under Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, (1995), the nexus between the settlement and the Plaintiff's allegations of his treatment in the Detective Bureau following the settlement and transfer out of that Bureau shortly after the minimum period of assignment with an associated reduction in pay, as well as the Chief's action toward him with respect to the Halloween display on the date that the Plaintiff was notified of the transfer, was sufficient to establish for purposes of summary judgment that these actions would not have occurred but for his protected status under the LAD. However, based on the analysis of the Appellate Division in Shepherd v. Hunterdon Developmental Center, 336 N.J.Super. 395, (App. Div. 2001), aff'd in relevant part, 174 N.J. 1 (2002), this Court also found that the Plaintiffs claim of retaliatory transfer should be treated as a discrete action by the employer, and that the 8

60 statute of limitations therefore began to run from the time of the transfer in October of In its recent opinion in the Roa case, the New Jersey Supreme Court noted that in its earlier decision in the Shepherd case, it had adopted the analytical framework used by the United States Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), to distinguish between a discrete act of discrimination and a continuing violation under Title VII of the Federal Civil Rights Act of 1964 in analyzing a statute of limitations issue under the NJLAD, and emphasized that, "Morgan established a "bright-line" rule that "individually actionable allegations cannot be aggregated." Roa v. Roa, supra, N.J., (slip op. at 11). Under the standard for the establishment of a prima facie case of retaliation based upon a discrete action by an employer in violation of the LAD, the Plaintiff's claim of retaliatory transfer out of the Detective Bureau with the associated loss in pay was an adverse employment action. There is also a nexus between the settlement and the transfer out of that Bureau shortly after the minimum period of assignment, taking into account the behavior of the Chief in taking the Plaintiff to the scene of the Halloween display and telling the Plaintiff in the course of the trip that he was being transferred out of the Detective Bureau, and there is a material dispute as to the Defendant's stated reason for making the transfer based upon staffing needs of the Department, that provides sufficient proof of a causal connection between the Plaintiff s protected status and the adverse employment action for purposes of defeating a motion for summary judgment with respect to the Plaintiff's claim that the transfer was retaliatory in violation of the LAD. However, the statute of limitations for claims arising under the LAD is two years. Montell v. Hayes, 133 N.J. 282, 292 (1993). Because the Complaint in this matter was 9

61 not filed until October 1, 2007, the Plaintiff's claim is barred by the statute of limitations unless the doctrines of equitable tolling or the discovery rule can be applied in the circumstances of this case. B. The Plaintiff's Argument that the Doctrine of Equitable Tolling Should Be Applied Under the Circumstances of This Case. The doctrine of equitable tolling assumes the accrual of the action but intercepts and delays the bar of the statute of limitations because the plaintiff lacked vital information which was withheld by a defendant. Villalobos v. Fava, 342 N.J.Super. 38, 46 (App. Div. 2001) certif. denied, 170 N.J. 210 (2001). Unlike the discovery rule which suspends the limitation period because the plaintiff is unaware of retaliatory action, equitable tolling of a statute of limitations occurs when a plaintiff is misled as to the real reason for demotion or termination and as a result fails to act within the prescribed time limit. Id. at 50, citing Dunn v. Borough of Mountainside, 301 N.J.Super. 262, (App. Div. 1997), certif. denied, 153 N.J. 402 (1998). Typically, the doctrine is applied where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Id. at 50, again citing Dunn v. Borough of Mountainside, 301 N.J.Super., supra, at 280, a case in which a plaintiff had been seriously abused by a police officer but was unable to make an identification of the defendant until after the two year limitation period of the Tort Claims Act had run. The court held that equitable tolling applied because the defendant was a police officer and had an independent duty to disclose the assault. However, absent a showing of intentional inducement or trickery by the defendant, the doctrine of equitable tolling should be applied sparingly and only in the rare situation where it is demanded by sound 10

62 legal principles as well as the interest of justice. Freeman v. State, 347 N.J.Super. 11, 31 (App. Div. 2002), certif. denied, 172 N.J. 178 (2002). Here, the Plaintiff argues that by insisting on the insertion of language in the Stipulation of Dismissal which deprived him of his right to due process and his rights under the LAD, the Defendant tricked and defrauded him into believing that he had no recourse when he was transferred out of the Detective Bureau for what he believed to be retaliation under the LAD. However, the Plaintiffs Certification submitted in opposition to this Motion clearly states that it was his own attorney who told him that the clause was enforceable, and that once he signed the agreement he would nave no recourse if he were transferred out of the Detective Bureau. Plaintiff also certified that his own attorney told him that the defendants would not settle the case unless Mr. Brooks agreed to that clause which provided that any transfer out of the Detective Bureau after a minimum period of twelve months "will be without recourse, and shall be non-appealable, non-grievable, and not reviewable in a Court of law." This Court finds that there is no evidence that the Township of Springfield did anything to trick or defraud Mr. Brooks in connection with the decision to transfer him out of the Detective Bureau in October of 2000 and in the two years thereafter which prevented him from filing a complaint to challenge the transfer within the statute of limitations. Plaintiffs counsel argues that the Defendant's insistence upon that language as a condition of settlement in and of itself amounts to intentionally fraudulent conduct by the Defendant sufficient to apply the doctrine of equitable tolling. However, there is no evidence that the Defendant made any representations to the Plaintiff about whether or 11

63 not that language would be enforceable if the Plaintiff were transferred out of the Detective Bureau after a year under circumstances which might support a claim for retaliation under the LAD, that the Plaintiff relied upon in making a decision not to file a complaint within the two years following the transfer. The record shows that the Defendant insisted on that language as a condition of settlement, and that Mr. Brooks relied on his own attorney's advice in accepting the settlement with that condition. Therefore, this Court finds that the doctrine of equitable tolling based upon deceit or trickery by the Defendant cannot be applied to the facts of this case. It is true that the doctrine of equitable tolling may also apply where a plaintiff has "in some extraordinary way" been prevented from asserting his rights. Freeman v. State, supra, 347 N.J.Super. at 31, quoting Dunn v. Borought of Mountainside, supra, 301 N.J.Super. at 275. In this case, the Plaintiff has certified that because he believed that the language of the Stipulation of Settlement clearly established that he had no recourse of any kind, and his own attorney was adamant about its enforceability, he did not seek the opinion of any other attorney within the two year period after the transfer. In Binder v. Price Waterhouse & Co., 393 N.J.Super. 304, 314 (App. Div. 2007), the plaintiff argued that it was the inaction of his prior counsel that prejudiced him and caused the delay in filing a state action after the dismissal of his action in the Bankruptcy Court alleging identical claims and seeking identical relief. In response the appellate court pointed out that: It has been held that, "(i)n non-capital cases, attorney error, miscalculation, inadequate research or other mistakes have 12

64 not been found to rise to the 'extraordinary' circumstances required for equitable tolling." Fahy v. Horn, 240 F. 3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944, 122 S. Ct. 323, 151 L. Ed. 2d 241 (2001). Although "egregious attorney misconduct may justify equitable tolling...a petitioner 'must also show that he acted with reasonable diligence and that the extraordinary circumstances caused his petition to be untimely.'" Schlueter v. Varner, 384 F. 3d 69, 77 (3d Cir. cert. denied, 544 U.S. 1037, 125 S. Ct. 2261, 161 L. Ed. 2d 1067 (2005) (quoting Baldayaque v. United States, 338 F. 3d 145, (2d Cir. 2003). This is clearly not a capital case. Assuming that the prior attorney gave the Plaintiff incorrect advice, the Plaintiff made some attempts to contact him about another matter within a month or two of the settlement, and his calls were not returned. The Plaintiffs attempt to retrieve his files from the prior lawsuit from the attorney was also unsuccessful. This Court finds that these circumstances would have caused a reasonable person in the Plaintiffs position to consult another attorney about his prior attorney's advice with respect to the enforceability of the settlement after the Plaintiff was transferred out of the Detective Bureau in October of Although Mr. Brooks did not state when he learned that this attorney was disbarred, his attorney was suspended from the practice of law by Order of the New Jersey Supreme Court filed June 27, 2001, and thereafter consented to disbarment as of July 25, 2002, during the two year period between the transfer out of the Detective Bureau in October of 2000, and the running of the statute of limitations in October of See, In re Rhodes, 173 N.J. 327 (2002). This Court finds that the advice given to the Plaintiff by his attorney about the Stipulation of Settlement does not constitute extraordinary circumstances sufficient to invoke the doctrine of equitable tolling, and that even if it did, the Plaintiff did not act with reasonable diligence to seek the advice of other counsel within the two year period 13

65 after the transfer was made, taking into account his own personal experience with attempting to contact this attorney and retrieve his files after the first lawsuit was settled. Therefore, this Court finds that the doctrine of equitable tolling does not apply in this case. C. The Plaintiff's Argument that the Discovery Rule Should Apply to This Case. Alternatively, the Plaintiff argues that because the language of the Stipulation of Settlement was so clear, he did not seek the advice of any other attorney within the two year period after his transfer out of the Detective Bureau. Only when he consulted with his present counsel about a subsequent claim based upon a hostile work environment, was he advised that he could challenge the language of the Stipulation of Dismissal as contrary to public policy as expressed in the LAD, and he asks this Court to rule that the statute of limitations with respect to his claim for retaliatory transfer should begin to run when he received that advice from his present attorney. The discovery rule avoids the mechanical application of a statute of limitations by postponing the accrual of a cause of action so long as a party is unaware either that he has been injured or that the injury was due to the fault or neglect of an identifiable person. Villalobos v. Fava, supra, 342 N.J.Super. at The standard is basically an objective one, and the crucial inquiry is whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J.275, 281 (2005), citing Martinez v. Cooper Hospital, 163 N.J. 45, 52 (2000). In this case, Mr. Brooks knew in October of 2000 that he was being transferred out of the Detective Bureau back to patrol, despite outstanding performance evaluations 14

66 as a detective, and that although the reason given for the transfer was based on staffing and assignment needs within the Springfield Police Department, his position in the Detective Bureau was filled by another officer from the patrol division. He had also been taken to the scene of the Halloween display by the Chief and orally notified on the way there that he was being transferred out of the Detective Bureau which he considered to be a threat to his life. In this case, the Plaintiff was well aware that the Township had insisted that he accept the language in the Stipulation of Settlement in order to resolve the prior litigation. In the fall of 2000 he knew the facts that caused him to believe that he was the victim of a retaliatory transfer, that is, the nature of his injury, and he knew the entity that had caused the injury. What he did not know, is whether or not he could challenge the enforceability of the language in the Stipulation of Settlement that provided that the transfer, it if occurred after the minimum period of time, was non-reviewable in a Court of law. In Grunwald v. Bronkesh, 131 N.J. 483, (1993), a case involving the application of the discovery rule in an action for legal malpractice, the New Jersey Supreme Court held that, "The limitations period begins to run when a Plaintiff knows or should know the facts underlying those elements, not necessarily when a Plaintiff learns the legal effect of those acts." In this case, the Plaintiff clearly knew the facts in October of 2000, but he concedes that he did not obtain any legal advice about the enforceability of the Stipulation of Settlement based on those facts until he contacted his present attorney almost seven years later about a subsequent claim related to his employment in this Police Department. Clearly the Plaintiff realized that he should contact a different 15

67 attorney for advice about the new allegations of violations of the LAD by the Police Department. This Court has already ruled in the context of the doctrine of equitable tolling, that the Plaintiff's failure to seek the advice of counsel other than his prior counsel about the legal effect of the provision of the Stipulation of Settlement which precluded review by a Court of Law was not reasonably diligent, given his negative experiences with that prior attorney in the time between the settlement and the transfer, and that finding applies with equal force to defeat the Plaintiffs argument that the discovery rule should be applied under the circumstances of this case. Since this case was argued, the New Jersey Supreme Court has confirmed in the Roa case that, "There is simply nothing about a LAD case that would militate against applying the equitable principles informing the discovery rule to allow pursuit of a claim of which the party was reasonably unaware." Roa v. Roa, supra, N.J. (slip op. at 18). However, in affirming the dismissal of Mr. Roa's claim of retaliatory termination as time-barred, the Court held that, "When Fernando (Roa) was fired he clearly knew, or should have known, that he had been the subject of retaliation by defendants, and should have filed his complaint within two years thereof. When he did not do so, the termination, as a claim, was lost and was not subject to a continuing violation analysis." Id. (slip op. at 14-15). Likewise, this Court finds that the Plaintiff's failure to act with reasonable diligence to obtain legal advice about the enforceability of the Stipulation of Settlement, under the facts known to him that caused him to believe that he had been the subject of a 16

68 retaliatory transfer, causes this Court to conclude that the discovery rule does not apply under the circumstances of this case. Since this Court has found that neither the doctrine of equitable estoppel nor the discovery rule can be applied to the circumstances of this case, the Plaintiffs claim that his transfer out of the Detective Bureau in October of 2000 was retaliatory in violation of the LAD is time-barred. Therefore the only remaining claim in Count One of the Second Amended Complaint must be dismissed. D. The Plaintiff's Argument that the Provision in the Stipulation of Settlement That Precludes Recourse to a Court of Law Is Unenforceable Because It Violated His Due Process Rights and Public Policy as Enacted in the LAD. Because the Plaintiff's claim of retaliatory transfer under the LAD is dismissed as time barred, the court will not reach the issue raised by the Plaintiff that the language of the Stipulation of Settlement which precluded him from seeking recourse to a Court of Law as a result of the transfer is unenforceable because it violated his due process rights and public policy as enacted in the LAD. E. The Plaintiffs Related Claims for Intentional Infliction of Emotional Distress and Damages. In the Second Count of the Second Amended Complaint, Plaintiff Brooks seeks damages for intentional infliction of emotional distress compensable under the LAD and punitive damages based upon his claims in Count One that the Defendant violated the the LAD. Since the court has now dismissed all of the plaintiff's claims in Count One of the Complaint under the LAD, his related claims for damages for intentional infliction of emotional distress and punitive damages must also be dismissed. 17

69 F. The Plaintiff's Claim of Retaliation by the Defendant Against His Witness During the Course of Discovery in Violation of the LAD. In the Third Count of the Second Amended Complaint, Plaintiff Brooks alleges that Plaintiff Peter Davis, a captain in the Springfield Police Department, testified at a deposition in this matter on February 17, 2009 in a manner critical of Chief William Chisholm. The Plaintiff further alleges that following that deposition, the Defendant retaliated against Captain Davis by improperly issuing him a disciplinary letter of counseling and assigning him to the midnight shift in violation of N.J.S.A. 10:5-1(d). Plaintiff Walter Brooks alleges that he also suffered LAD prohibited retaliation in that the Defendant attempted to intimidate and harass his witness, Captain Peter Davis. In the Brief filed on behalf of the Defendant Police Department in support of the motion for summary judgment on this claim, defense counsel acknowledges that coworkers who have asserted rights under the LAD have standing to litigate a claim that a defendant took reprisals against them for their protected activity in support of a coworker. See Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 632 (1995). Counsel argues, however, that Plaintiff Brooks does not have standing to raise a claim of retaliation against Captain Davis. Plaintiff Brooks does not allege that any adverse employment action was taken against him after Captain Davis gave his deposition. The original complaint had been filed in October of 2007, and the deposition of Captain Davis occurred on February 17, Plaintiff Brooks alleges that the Defendant's retaliatory action against Davis was an attempt to intimidate and harass his witness, and constituted the intentional infliction of emotional distress on him for which he seeks compensatory and punitive damages. 18

70 Although Plaintiff Brooks did not plead specifically that the action taken by the Defendant against his witness had a chilling effect on his own assertion of his right to file and pursue an action against his employer under the LAD, his counsel raised that issue at oral argument. Plaintiff's counsel also argued that although Captain Davis has not shown any signs of backing off of his deposition testimony or refusing to testify on behalf of Plaintiff Brooks in a trial of this matter, he might do so, and in any event, the Plaintiff should be allowed to pursue his own claim for infliction of emotional distress caused by the retaliatory conduct of the Defendant towards his witness during this litigation. Defense counsel responded that if Captain Davis were to refuse to testify or change his testimony at trial, there are appropriate remedies in the evidence rules to allow Plaintiff Brooks to present the deposition testimony of Defendant Davis to the jury. Defense counsel also argued that the deposition testimony of Captain Davis was not related to the transfer of Plaintiff Brooks out of the Detective Bureau in October of 2000, which was the only remaining allegation of retaliatory conduct under the LAD in Count One of the Second Amended Complaint after the entry of this Court's prior Order of August 26, As a result, they argued, there would be no purpose for Captain Davis to testify at a trial. Finally, defense counsel argued that since the claim of retaliatory conduct as to which Captain Davis would testify has already been dismissed by the Court, Plaintiff Brooks cannot pursue his claim that the Defendant attempted to intimidate and harass his witness with respect to Davis' testimony about that claim. discrimination: N.J.S.A. 10:5-12(d) makes it an unlawful employment practice, or an unlawful For any person to take reprisals against any person because that person has filed a complaint, testified or assisted in any 19

71 proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by (the LAD). In Craig v. Suburban Cablevision, Inc., supra, 140 N.J. at 629, the Supreme Court pointed out that the Legislature amended section 12(d) in 1992 to add the language which expands the class protected from employer retaliation to include not just persons who "opposed any practices or acts forbidden under the LAD" or who "filed a complaint, testified or assisted in any proceeding," but also persons who merely "aided or encouraged" another person in the exercise of that person's rights under the LAD. Id. Accordingly, the Supreme Court held that the plaintiff's mother, who was also her manager in the defendant's door-to-door sales department, who testified in the plaintiffs discrimination case against the defendant employer in federal district court, could sue the employer in a separate state action under the LAD, claiming that she was discharged in retaliation for aiding or encouraging her daughter and co-worker "in the exercise or enjoyment of a right granted or protected by the LAD." Id. at 630. The daughter, Susan Chapman, had also been a plaintiff in the state action, but reached a settlement with the defendant in the federal matter, and did not join her mother and the other plaintiffs in the appeal from the dismissal of their claims of retaliatory discharge under the LAD in the state action. With respect to the remaining plaintiffs who had not testified on behalf of Susan Chapman, but claimed that the employer had fired them because they supported her, the Supreme Court looked to federal precedent under Title VII of the Civil Rights Act of In DeMedina v. Reinhardt, 444 F. Supp. 573, 574 (D.D.C. 1978), aff d in relevant 20

72 part, 686 F2d 997 (1982), the plaintiff alleged that she was denied employment at the United States Information Agency (USIA) on account of her gender and national origin, and in retaliation for her husband's anti-discrimination activities on behalf of minority employees at USIA. Finding that the New Jersey Supreme Court had frequently looked to case law under Title VII of the Civil Rights Act of 1964, and that Title VII has a provision analogous to N.J.S.A. 10:5-12(d), (42 U.S.C. Section 2000e-3(a)), our Supreme Court noted that in DeMedina, the court had rejected the defendant's argument that only the plaintiffs husband, and not the plaintiff herself, could seek relief under the antiretaliatory provision of Title VII because only her husband was engaged in protected activity, and her husband had not been dismissed from employment. The federal district court found that Congress did not expressly consider the possibility of third-party reprisals, but that Congress had intended to ensure that no person would be deterred from exercising his rights under Title VII by the threat of discriminatory retaliation. Since tolerance of third-party reprisals would also deter persons from exercising their protected rights under Title VII, the court concluded that Title VII also proscribed the alleged retaliation claimed by the plaintiff's wife. Craig v. Suburban Cablevision, Inc., supra at , quoting DeMedina v. Reinhardt, supra, 444 F. Supp. at 580. In the Suburban case, the defendant attempted to distinguish the DeMedina case, arguing that it stands for the proposition that an employee's friend or relative has standing to complain about retaliation only when the employer has not retaliated against 21

73 the employee, but Susan Chapman had also been terminated. The Supreme Court responded that: The argument misses the mark. Firing an employee engaged in a protected activity does not vitiate coercion, intimidation, threats, or interference with co-workers. Discriminating against one employee in violation of the LAD should not insulate a vengeful employer from claims by other employees against whom the employer has retaliated. Id. at 632. The Supreme Court also pointed out that reprisals against relatives and close friends who are co-workers can be coercive, and that in the context of Suburban's doorto-door sales department, reprisals against Susan Chapman's mother, sister, and close friends could have had a coercive effect on Susan. Id. at 633. Accordingly, the Court held that Susan's relatives and friends, who were also her co-workers, had standing to pursue their claim of retaliatory discharge under the LAD. Id. It is also important to note that in DeMedina, the federal case relied upon by the Supreme Court, the federal district judge gave the following explanation of why the argument that if the retaliation was aimed at the plaintiff's husband, only the husband should be able to make the claim, should be rejected: Such a construction of Title VII would produce absurd and unjust results, for while plaintiff's husband might be in a position to seek injunctive relief to prohibit future reprisals against his spouse, he would certainly not be in a position to seek back pay and/or retroactive promotion based on his spouse's employment denial. Therefore, unless plaintiff herself is permitted to seek relief based on the denial of her employment application, the "make whole" purpose of Title VII would be frustrated. DeMedina v. Reinhardt, supra, 444 F. Supp. at 580. Taking into account the recognition by the Supreme Court that retaliation against a co-worker who testifies in support of a plaintiff on a LAD claim may have a coercive 22

74 effect on the plaintiff, this Court finds that Plaintiff Brooks does have standing to bring a claim that the Defendant attempted to intimidate and harass his witness after that witness testified in his favor during the litigation of Brooks' claims of retaliation under the LAD to seek injunctive relief to prohibit future reprisals. Next, the defense argues that Plaintiff Brooks can no longer pursue this claim because the court found in favor of the Defendants on the Plaintiff's claim that he was subjected to a hostile retaliatory environment within two years of the filing of the complaint by Order of August 26, In the Letter Opinion which accompanied the Order of August 26, 2009, this Court found that Captain Peter Davis was deposed on February 27, 2009 in this matter. The deposition testimony of Plaintiff Davis was related to the claim by Plaintiff Brooks that Sgt. James Fine was pressured by Chief Chisholm to lower Brooks' annual evaluation of Brooks for The specific findings with respect to his testimony and the Certification submitted by Captain Davis in opposition to the motion are included in the Letter Opinion. This Court ultimately concluded that, while Sgt. Fine felt threatened by the information given to him by Captain Davis and thought that there might be something personal about the Chief's feelings about the Plaintiff's evaluation, and lowered his evaluation as a result, there is no specific evidence in the record that Chief Chisholm or the Deputy Chief singled out Officer Brooks to have his evaluation lowered based on his race or his protected status. As a result, this Court found that Plaintiff Brooks could not establish as part of his prima facie case of a hostile environment that his evaluation by Sgt. Fine in 2007 for

75 2006 was lowered because of pressure from the Chief and Deputy Chief based on the race or protected status of Officer Brooks. This Court ultimately found that Officer Brooks could not establish a prima facie case of a hostile environment in the two years prior to the filing of his complaint, and therefore, there will be no trial on the claim as to which Plaintiff Davis provided deposition testimony. Nevertheless, the United States Court of Appeals for the Third Circuit has held that protesting what an employee believes in good faith to be a discriminatory practice is clearly protected under Title VII, and thus a plaintiff need not prove the merits of the underlying discrimination complaint, but only that "he was acting under a good faith, reasonable belief that a violation existed." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085, citing Griffiths v. Cigna Corp., 988 F.2d 457, 468 (3d Cir. 1993). As the United States Court of Appeals for the District of Columbia Circuit has also explained: An employer has... no legitimate interest in retaliating against an employee per se, and the fact that a nonfrivolous claim is ultimately resolved in favor of management does not justify an attempt to suppress the claim by penalizing the employee who raised it. The employer is sufficiently protected against malicious accusations and frivolous claims by a requirement that an employee seeking the protection of the opposition clause demonstrate a good faith, reasonable belief that the challenged practice violates Title VII... Opposition based on reasonable belief should be protected from retaliation. Parker v. O.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981). Of course, Plaintiff Brooks must prove his claim that he suffered LAD prohibited retaliation because the Defendant attempted to intimidate and harass his witness, Captain Davis, and that he was acting under a good faith, reasonable belief that a LAD violation existed, when he asserted his claim that Sgt. Fine was pressured by Chief Chisholm to 24

76 lower Fine's annual evaluation of Brooks for 2006, even though that claim has been dismissed by the court. Defense counsel argued that, aside from whether Plaintiff Brooks can prove that Davis was retaliated against, Mr. Brooks may not pursue a claim for retaliation by the Defendant in an attempt to intimidate and harass his witness unless he suffered an adverse employment action as a result. Plaintiffs counsel responded that in Roa v. Roa, supra, 402 N.J. Super. at , the appellate court pointed out that in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), the United States Supreme Court determined that the anti-retaliation provision of Title VII is not limited to discriminatory actions that affect the terms and conditions of employment, but rather, the scope of the provision extends beyond workplace-related or employmentrelated retaliatory acts and harm. The court then compared the anti-retaliation provision of Title VII to the anti-retaliation provision of the LAD, N.J.S.A. 10:5-12(d), and noted that "practices or acts forbidden" under the LAD include many things unrelated to one's employment, and that by its terms, subsection (d) is not limited to one's employer, but rather applies to the conduct of "any person." Roa v. Roa, supra, 402 N.J. Super. at Recognizing that our courts have traditionally looked to federal precedent governing Title VII as a source of interpretive authority in construing the LAD, and that like Title VII, the LAD contains both substantive provisions and an anti-retaliation provision, the appellate court concluded that: The Supreme Court's essential holding in Burlington Northern, i.e. that Title VII's anti-retaliation provision creates a distinct cause of action that need not be related to the workplace, applies with equal reasoning to construction of the LAD. 25

77 holding that: This is consistent with both the express language of the LAD, as well as its broad remedial purposes. Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391 (2005). Id. at 541. In its recent opinion in the Roa case, the Supreme Court affirmed that analysis, We take our lead from Burlington and from the cited federal cases. Like the Appellate Division, we are satisfied that the Supreme Court's holding that Title VII created a distinct cause of action for retaliatory conduct that need not be related to the workplace applies with equal force to the LAD. That is consistent with the express language of the LAD, as well as the broad remedial purposes underlying it. Roa v. Roa, supra, N.J. (slip op. at 21). In the Roa case, the plaintiffs alleged that retaliatory acts were taken in close proximity to their terminations. One plaintiff claimed that when she sought unemployment benefits after her termination, defendants claimed that she had been fired for misconduct, when in fact her discharge was retaliatory. The other plaintiff claimed that the defendant had terminated his health insurance as further retaliation against him and his wife. Although the wife's claim related to her unemployment benefits was determined to be time-barred, the Appellate Division recognized that it was possible to bring the claims raised by both plaintiffs under the LAD, based upon the holding of the United States Supreme Court in Burlington applied to Title VII, and remanded the husband's claim for further proceedings. Roa v. Roa, supra, 402 N.J. Super. at 543. Although the Supreme Court determined that the husband's claim of retaliatory discharge was time-barred, it agreed that his claim based upon the cancellation of his insurance could proceed. Roa v. Roa, supra, N.J. (slip op. at 23). 26

78 In doing so, the Supreme Court rejected the defendant's argument that the insurance cancellation did not rise to the level necessary to invoke the LAD's protection and thus was not independently actionable, contending that it was inadvertent, and in any event, caused no damage to Mr. Roa. The Court again took its lead from the United States Supreme Court in the Burlington case. (slip op. at 22). In Burlington, the Court considered various standards developed by the lower courts and adopted the standard which requires the plaintiff to show that a reasonable employee would have found the challenged action materially adverse, which in the context of making or supporting a charge of discrimination means that it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co., supra, 548 U.S. at 68, 126 S. Ct. at 2415, 165 L. Ed. at 359 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) quoting Washington v. Ill. Dept. of Revenue, 420 F.3d 658, 662. (7th Cir. 2005)), cited in Roa v. Roa, supra, N.J. (slip op. at 22). In writing for our Supreme Court, Justice Long then quoted the explanation given by the United States Supreme Court as to why it had purposely used the adjective "materially" adverse in the standard: It is important to separate significant from trivial harm. Title VII, we have said, does not set forth "a general civility code for the American workplace." An employee's decision to report discriminatory behavior cannot immunize that employee from petty slights or minor annoyances that often take place at work and that all employees experience. The antiretaliation provision seeks to prevent employer interference with "unfettered access" to Title VII's remedial mechanisms. It does so by prohibiting employer actions that are likely "to deter victims of discrimination from complaining to the EEOC," the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of 27

79 good manners will not create such deterrence. Id. at p. 23, (quoting Burlington N. & Santa Fe Ry. Co., supra, 548 U.S. at 68, 126 S. Ct. at 2415, 165 L. Ed. 2d at (citations omitted).) (slip op. at 22-23). Our Supreme Court then found that, tested by the Burlington standard, Mr. Roa's claim, if proven, that defendants deliberately and wrongfully terminated his health insurance in retaliation for his having reported the sexual harassment of female employees, is unlike the petty slights and minor annoyances referred to in Burlington, and that viewing his claim in a light most favorable to him in the context of a motion for summary judgment, his claim that the insurance cancellation at least in part caused him and his wife to experience financial problems, damaged their credit rating, subjected them to calls from debt collectors and caused them a tremendous amount of stress and anxiety was sufficient to meet the threshold for an independent cause of action under the LAD. (slip op. at 23). This Court has already concluded that because N.J.S.A. 10:5-12(d) prohibits any person from taking reprisals against any person because that person has testified in any proceeding under the LAD, and because of the analysis of the New Jersey Supreme Court in the Craig case, that such reprisals may also have a coercive effect on a plaintiff, Plaintiff Brooks has standing to at least file a claim to enjoin that type of retaliation in his own case. If Plaintiff Brooks can prove the claim that the Defendant retaliated against Davis for testifying in Brooks' behalf in a way that meets the Burlington/Roa standard, this Court finds that for purposes of summary judgment, a reasonable worker in Brooks' position might have been dissuaded from pursuing their retaliation claim under the LAD. 28