Opinion
Civil Action No. 96-5840 (JBS)
Filed: December 31, 1998
S. Robert Freidel, Jr., Esquire, Turnersville, New Jersey, Attorney for Plaintiff.
John A Misci, Jr., City Attorney, Marc A. Riondino, First Assistant City Attorney, Lisa Roberts Taylor, Assistant City Attorney, Camden, New Jersey, Attorneys for Defendant.
OPINION
This employment discrimination case is before the court on defendant's motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56(b). The principal issues presented are whether plaintiff, Keith Johnson, a black male who was terminated from his position as a sergeant with defendant, City of Camden Police Department ("CCPD"), for conduct unbecoming a police officer, has come forward with sufficient evidence that he was treated less favorably than similarly situated white officers to make out a prima facie case of disparate treatment, and whether he has come forward with sufficient evidence to suggest to a reasonable factfinder that the proffered reasons for his termination were pretextual. In defining these issues, the court also examines the effect of the parties' Joint Final Pretrial Order in narrowing the issues in dispute, under Federal Rule of Civil Procedure 16(e). For the reasons set forth below, the court grants defendant's motion and dismisses plaintiff's Complaint.
BACKGROUND
A. Factual History
On August 23, 1995, plaintiff, CCPD Sergeant Keith Johnson, was involved in an altercation with officers of the Camden County Sheriff's Department at the Camden County Hall of Justice in connection with the detention of his brother, Kevin Johnson, for whom an arrest warrant had been issued for alleged failure to pay child support.
In a Preliminary Notice of Disciplinary Action dated September 19, 1995, Johnson was charged with conduct unbecoming a police officer for his role in the August 23, 1995 incident. In a second Preliminary Notice of Disciplinary Action dated October 7, 1995, Johnson was again charged with conduct unbecoming a police officer arising out of his reaction to the service of the first Preliminary Notice of Disciplinary Action by Lieutenant Richard Chandler on September 19, 1995.
The disciplinary charges against Johnson were adjudicated in an administrative hearing before independent hearing examiner John Phillip Maroccia, Esquire, on February 2, 1996 and May 21, 1996. In a June 14, 1996 letter to CCPD Chief of Police George D. Pugh, Maroccia summarized the testimony he heard at the hearing and announced the following findings of fact:
This Hearing Officer finds that on August 23rd, 1995 Sergeant Keith Johnson came to the Hall of Justice with his brother to respond to an arrest warrant and that when Mr. Johnson was appraised of a procedure with regard to persons charged with a civil arrest warrant that he was to be handcuffed and brought to jail unless there were some payment involved which was inconsistent with the previous understanding of either Sergeant Keith Johnson or Kevin Johnson or both.
Based on all the testimony that was brought before this Hearing Officer it is clear that Sergeant Keith Johnson used profanity in a loud tone of voice, shouting and had an arrogant demeanor and attempted to use his special influence as a Camden City Police Officer to provide special attention and special treatment for his brother. There is some allegations that people mistook Sergeant Keith Johnson for Kevin Johnson because they are twins. This Hearing Officer has disregarded that allegation or argument as out of hand. It is clear that the people involved knew one from the other and that Sergeant Johnson attempted to use his office to effectuate special treatment.
Because of this conduct which this Hearing Officer finds as a matter of fact based on the review of the witnesses and their demeanor, this Hearing Officer finds Sergeant Keith Johnson guilty of the first count of Conduct Unbecoming a Police Officer. Based on Lt. Chandler and Sergeant Green's testimony, it is also clear and I do find as a matter of fact that Sergeant Keith Johnson subsequently engaged in conduct unbecoming a Police Officer when he responded to Lt. Chandler's request to come to his office to pick up papers as he was being charged for the first occasion.
(Plaintiff's Exhibit B at pg. 4-5).
Maroccia recommended that Johnson be suspended without pay for sixty (60) days for the first offense of conduct unbecoming a police officer and for an additional ten (10) days for the second offense. The recommended penalty was based on Maroccia's conclusion that Johnson's disciplinary record "shows an ongoing consistent pattern of belligerent and anti-social conduct with regard to Sergeant Johnson's tenure as a Police Officer with the City of Camden." (Id. at pg. 5). Maroccia noted that Johnson's disciplinary record was
replete with charges of failure to comply with the Chief's orders, failure to submit to medical evaluations, chronic absenteeism, negligent handling of equipment and police vehicles, disruptive conduct during Administrative Hearings, making false entries in police records, abuse of sick time and failure to report as a witness when duly subpoenaed.
(Id. at pg. 6). Maroccia pointed out that he did not consider Johnson's disciplinary record or his prior performance as a police officer until after he had decided that Johnson was guilty of conduct unbecoming a police officer. (Id. at 5).
Maroccia concluded that Johnson's offenses did not warrant termination, even taking into account Johnson's disciplinary history:
In light of the fact that [Johnson's] prior disciplinary penalties were written reprimands, this Hearing Officer is reluctant to recommend termination of a position of a man who has largely created his own problems as a result of his own stupidity and foolishness. If there was any substantial showing that [Johnson's] belligerent behavior was vented towards any member of the public then I would have no such hesitation. However, except for some minor traffic accidents his personnel record is devoid of any such problems.
(Id. at 6.)
Pugh did not agree with Maroccia's recommendation that Johnson be suspended. In a June 18, 1996 memorandum to Camden County Business Administrator Patrick J. Keating, Pugh set aside the penalty recommended by Maroccia and imposed the penalty of termination effective June 28, 1996. Pugh explained his decision as follows:
In my opinion, the [recommended] penalty does not address the egregious behavior exhibit by Sergeant Keith Johnson relative to this entire matter. His unprofessional and intellectually inferior behavior; while interacting with another professional law enforcement agency, brings great discredit to himself as well as our professional organization.
As a law enforcement officer, in particular a supervisor, if he is to control others; he must also learn to control himself emotionally, physically and intellectually. Because we have such a tremendous influence on subordinates and other younger impressionable officers, who tend to emulate us and accept our good or not so good conduct as the norm; we must be mindful of the image we are projecting at all times.
(Plaintiff's Exhibit C at pg. 2).
Pugh expressly rejected Maroccia's rationale that Johnson's penalty should be mitigated by the fact that his conduct unbecoming a police officer was not directed at a member of the general public:
. . . This type of behavior, no matter where, when or against whom it is directed can not be tolerated. We can not have dual standards.
The public has almost a blind faith that the organization will identify those officers exhibiting unprofessional behavior patterns and punish them accordingly. The absence of knowledge by the public does not diminish that faith. In fact, the Department's creditability, integrity and overwhelming public trust is jeopardized when our disciplinary process is based on whether or not the public is aware of the officer(s) deviant behavior.
(Id.)
Johnson filed an administrative appeal of his termination with the Office of Administrative Law. Pursuant to a settlement between Johnson and CCPD, Johnson dismissed his appeal and agreed to accept a six-month suspension without pay, and CCPD agreed to reinstate Johnson to his position as a sergeant and to compensate him for lost wages and benefits incurred over and above the six-month suspension. (Plaintiff's Exhibit D). After the proposed settlement had been approved by the appropriate authorities, Johnson returned to work on or about January 19, 1998. (Plaintiff's Exhibit P).
B. Procedural History
On or about January 16, 1996, after he was charged with conduct unbecoming a police officer but before the administrative hearing that led to his termination, Johnson filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that CCPD was discriminating against him on the basis of his race. On or about September 12, 1996, after his termination, Johnson filed a second Charge of Discrimination with the EEOC alleging that he was terminated in retaliation for having filed the first Charge of Discrimination.
On or about October 7, 1996, Johnson received a right to sue letter from the EEOC in connection with his first Charge of Discrimination. Johnson then commenced this case by filing a Complaint on December 11, 1996. Johnson alleged that from 1992 through his termination he was "subjected to continuous discrimination on the basis of his race." (Complaint at ¶ 10).
Specifically, Johnson claimed that he was charged with abuse of the sick leave policy and required to appear at a hearing regarding the charge while white officers who violated the same policy were not charged or required to appear at a hearing, that he was required to write special incident reports while white officers involved in the same incidents were not required to do so, that he was denied requests to take certain vacation days based on a supposed department policy that did not permit two officers in the same district to take the same day off while two or more white officers in the same district were permitted to take the same day off, and that he was subjected to constant harassment based on his race and treated differently than similarly situated white officers by superior officers including Chandler, Sergeant Michael Gill, and Inspector Albert Handy. (Id. at ¶¶ 10a-d).
In Count One of his Complaint, Johnson claimed that the alleged pattern of discrimination culminating in his termination violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. ("NJLAD"). (Id. at ¶¶ 14-20). In Count Two, Johnson claimed that the alleged pattern of discrimination culminating in his termination violated 42 U.S.C. § 1983, which makes it unlawful for any person acting under color of state law to deprive a citizen of any rights, privileges or immunities secured by the Constitution of the United States or federal law. (Id. at ¶¶ 21-25). In Count Three, Johnson claimed that CCPD is responsible for the intentional discrimination he attributes to Chandler, Gill and Handy under the doctrine of respondeat superior. (Id. at ¶¶ 26-29). In Count Four, Johnson claimed that CCPD intentionally inflicted emotional distress upon him through the alleged pattern of discrimination culminating in his termination. (Id. at ¶¶ 30-32). In Count V, Johnson claimed that CCPD negligently inflicted emotional distress upon him by allowing the alleged pattern of discrimination culminating in his termination to occur. (Id. at ¶¶ 33-37). Johnson sought injunctive relief, compensatory, statutory and punitive damages, attorneys' fees and costs, and such other relief as the court deemed just and proper.
CCPD moved to dismiss Johnson's Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). In an Opinion and Order filed March 24, 1997, the court granted CCPD's motion in part and denied it in part. The court dismissed Johnson's § 1983 claim (Count Two) and his claim for punitive damages under Title VII. The court denied CCPD's motion in all other respects. The court also noted, in response to CCPD's argument that Johnson's Complaint should be dismissed for lack of subject matter jurisdiction because Johnson had not yet received a right to sue letter from the EEOC in connection with his second Charge of Discrimination, that the retaliation claim asserted in the second Charge of Discrimination was not a part of this case. The court is not aware of whether Johnson ever received a right to sue letter from EEOC in connection with his second Charge of Discrimination. In any event, Johnson never filed an Amended Complaint or took any other action to assert his retaliation claim in this case.
On January 2, 1998, the parties filed their Joint Final Pretrial Order, in accordance with Federal Rule of Civil Procedure 16(e). Johnson identified the following as the relevant legal issues for trial:
1. Whether plaintiff was discriminated against on the basis of race when defendant terminated his employment.
2. Whether plaintiff's termination was part of a policy of race discrimination where defendant replaced members of the protected class.
3. Whether the reason offered by the defendant to explain plaintiff's termination is pretextual.
4. Whether defendant inflicted intentional emotional distress on plaintiff.
5. Whether plaintiff suffered damages as a result of said discrimination.
(Joint Final Pretrial Order at pg. 23-24).
Johnson identified the following as the contested factual issues regarding liability that he intended to prove at trial:
1. That his race was a factor in the decision by the defendant to remove him from his position.
2. That he was performing his duties as required by his employer.
3. That the stated reason for termination is pretextual.
4. That plaintiff's termination was part of a decision by defendant to discriminate against minorities and defendant did in fact terminate plaintiff, a minority employee in a protected group.
5. That plaintiff suffered emotional distress as a result of defendant's actions.
(Id. at pg. 3).
DISCUSSION
A. Summary Judgment Standard
A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is "genuine" if it is supported by evidence upon which a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if a dispute about it might affect the outcome of the suit under the governing substantive law. Id. In deciding whether a genuine issue of material fact exists, the court must view the facts in the light most favorable to the non-moving party and extend all reasonable inferences to that party.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party always bears the initial burden of demonstrating the absence of a genuine issue of material fact, regardless of which party ultimately would have the burden of persuasion at trial. Celotex, 477 U.S. at 323. Once the moving party has met its opening burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324. The non-moving party may not rest upon the mere allegations or denials of its pleadings. Id. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "When the record is such that it would not support a rational finding that an essential element of the non-moving party's claim or defense exists, summary judgment must be entered for the moving party." Turner v. Schering-Plough Corp., 901 F.2d 335, 341 (3d Cir. 1990).
B. Effect of the Joint Final Pretrial Order
Final pretrial orders are governed by Rule 16(e), which provides that a pretrial order "shall control the subsequent course of the action unless modified by a subsequent order" and that "[t]he order following a final pretrial conference shall be modified only to prevent manifest injustice." Thus, a final pretrial order supersedes the pleadings. See Basista v. Weir, 340 F.2d 74, 85 (3d Cir. 1965). Enforcement of a final pretrial order "is a matter peculiarly within the discretion of the trial judge."Beissel v. Pittsburgh and Lake Erie R. Co., 801 F.2d 143, 150 (3d Cir. 1986), cert. denied, 479 U.S. 1088 (1987).
In light of Rule 16(e)'s directive that a pretrial order "shall control the subsequent course of the action," numerous courts have held that a final pretrial order supersedes the pleadings and that claims or defenses set forth in the pleadings but omitted from the final pretrial order are not properly before the district court. See, e.g., Phoenix Canada Oil Co. Ltd. v. Texaco, Inc., 842 F.2d 1466, 1475-76 (3d Cir.) (trial court properly refused to consider claim for consequential damages not preserved in final pretrial order), cert. denied, 488 U.S. 908 (1988); Southern California Retail Clerks Union v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984) (issue not preserved in final pretrial order properly deemed eliminated from action); Hernandez v. Alexander, 671 F.2d 402, 407 (10th Cir. 1982) (claim mentioned in complaint but not identified as issue of fact or law in final pretrial order properly disregarded by district court); Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1510 and n. 9 (M.D.Ala. 1994) (claims asserted in complaint but omitted from final pretrial order deemed abandoned), aff'd, 58 F.3d 640 (11th Cir. 1995);Solinsky v. Arthritis Found., 635 F. Supp. 620, 622 (E.D.N Y 1986) (claims asserted in amended complaint but omitted from final pretrial order deemed abandoned). Indeed, the Third Circuit has emphasized that one of the purposes of final pretrial orders is "to harness unwieldy litigation by simplifying the dispute and narrowing the issues for trial." Phoenix Canada, 842 F.2d at 1476.
In the present case, the court finds that Johnson has preserved only two claims for trial in the Joint Final Pretrial Order: (1) whether CCPD violated Title VII and/or the NJLAD by terminating his employment on the basis of his race (Count I), and (2) whether CCPD intentionally inflicted emotional distress upon Johnson (Count IV). The court deems Johnson's respondeat superior (Count III) and negligent infliction of emotional distress (Count V) claims abandoned as a result of Johnson's failure to include them in the Joint Final Pretrial Order. Furthermore, to the extent Johnson alleged in Count One of his Complaint that CCPD discriminated against him on the basis of his race in violation of Title VII and/or the NJLAD prior to his termination by charging him with abuse of the sick leave policy, requiring him to write special incident reports, denying him requested vacation days, and permitting harassment and disparate treatment by superior officers, the court deems these allegations abandoned as a result of Johnson's failure to mention them in the Joint Final Pretrial Order.
Likewise, although Johnson argued a retaliation claim in his brief in opposition to CCPD's motion and CCPD attacked the merits of such a claim in its reply brief, there is no such claim in this case. As noted above, the court does not know whether Johnson ever obtained a right to sue letter from the EEOC on his second Charge of Discrimination, alleging that he was terminated in retaliation for having filed his first Charge of Discrimination, the docket reflects that Johnson never filed an Amended Complaint or took any other action to assert such a claim in this case. Because Johnson did not mention his retaliation claim in the Joint Final Pretrial Order, it is not properly before the court. The only issue relating to his termination that Johnson preserved in the Joint Final Pretrial Order is whether it was improperly motivated by racial discrimination in violation of Title VII and the NJLAD — an issue that CCPD has addressed on the merits without objection even though it was not the focus of Johnson's Complaint. Thus, Johnson's claim that his termination was motivated by racial discrimination in violation of Title VII and the NJLAD is the principal issue before the court on this motion for summary judgment.
C. Exhaustion of Administrative Remedies
Johnson's discrimination claim against CCPD has undergone such a transformation since he filed his first Charge of Discrimination with the EEOC on or about January 16, 1996 that the court must consider whether Johnson has complied with the well-established requirement that a Title VII plaintiff exhaust administrative remedies by presenting his claims to the EEOC and obtaining a right to sue letter before filing suit in a district court. See Howze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1210 (3d Cir. 1984) ("A plaintiff under Title VII must file a timely charge with the EEOC before initiating suit in federal court") (citingLove v. Pullman, 404 U.S. 522, 523 (1972)).
"[T]he parameters of the civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the [EEOC]."Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976),cert. denied, 429 U.S. 1041 (1977) (citation omitted). Thus, a district court may assert jurisdiction over claims not included in the charge of discrimination a Title VII plaintiff filed with the EEOC only if the new claims "are reasonably within the scope of the complainant's original charges and if a reasonable investigation by the EEOC would have encompassed the new claims." Howze, 750 F.2d at 1212; see also Schanzer v. Rutgers Univ., 934 F. Supp. 669, 673-75 (D.N.J. 1996) (finding claim alleging second denial of tenure on the basis of race, sex and religion after right to sue letter had been issued on charge of discrimination based on first denial of tenure for same reasons was "part of the same overall episode of alleged discrimination"); EEOC v. MCI Int'l, Inc., 829 F. Supp. 1438, 1481-82 (D.N.J. 1993) (finding former employees' charges of retaliation and failure to hire based on age to be fairly within scope of investigation growing out of other former employees' charges discriminatory layoff based on age).
As defined in the Joint Final Pretrial Order, the primary issue for trial in the present case is whether CCPD discriminated against Johnson on the basis of his race when it terminated his employment on June 28, 1996. Three of the five legal issues for trial and three of the five factual issues for trial Johnson identifies in the Joint Final Pretrial Order relate specifically and exclusively to his termination — an issue that was not and could not have been the subject of the original Charge of Discrimination he filed six months before his termination.
Nevertheless, the court finds that Johnson's remaining Title VII claim is reasonably within the scope of his original Charge of Discrimination and would have been encompassed by a reasonable investigation of the original charge by the EEOC. The Third Circuit expressly noted inOstapowicz that a civil action may include claims based on "new acts which occurred during the pendency of proceedings before the [EEOC]."Ostapowicz, 541 F.2d at 399 (citations omitted); see also Schanzer, 934 F. Supp. at 674-75 (disregarding fact that second tenure determination at issue in new claim was not made until after EEOC issued right to sue letter in connection with original charge of discrimination). Furthermore, as in Schanzer and MCI, the claims that were not included in the original charge filed with the EEOC are based on the same type of invidious discrimination (race) and can fairly be considered "part of the same overall episode of alleged discrimination." Id. at 674; MCI, 829 F. Supp. at 1482 (distinguishing Gavin v. Peoples Natural Gas Co., 464 F. Supp. 622, 624 (W.D.Pa. 1979), vacated on other grounds, 613 F.2d 482 (3d Cir. 1980), where court found that claim of race discrimination would not have grown out of investigation of claim based on religious discrimination).
Accordingly, the court finds that Johnson has satisfied Title VII's exhaustion requirement and proceeds to consider the merits of CCPD's motion for summary judgment on Johnson's remaining Title VII/NJLAD claim and intentional infliction of emotional distress claim.
D. Johnson's Title VII/NJLAD Claim
In a discriminatory discharge claim brought under Title VII, the initial burden of production is on the plaintiff to establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). To meet that burden, a plaintiff must show: (1) that he or she is a member of a protected class; (2) that he or she was qualified for the position from which he or she was discharged; and (3) that non-members of the protected class were treated more favorably. Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990).
Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, non-discriminatory reason for the discharge. McDonnell Douglas, 411 U.S. at 802-03; Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 506-07. An employer satisfies this burden by introducing evidence which, taken as true, would permit a factfinder to conclude that unlawful discrimination was not the reason for the discharge. Burdine, 450 U.S. at 254-56 and n. 8 (1981). An employer need not prove that the proffered reason actually motivated its behavior, however, as the burden of proof on that point always remains with the plaintiff. Id.
Once an employer meets its burden of production, the burden of production shifts back to the plaintiff, who must show by a preponderance of the evidence that the employer's proffered explanation for the discharge is pretextual and that the employer's true motivation was discriminatory. McDonnell Douglas, 411 U.S. at 804-05; Burdine, 450 U.S. at 253, 256; Hicks, 509 U.S. at 507-08. "It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Hicks, 509 U.S. at 519 (emphasis in original). However,
because the factfinder may infer from the combination of the plaintiff's prima facie case and its own rejection of the employer's proffered non-discriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (1) discrediting the proffered reasons, either circumstantially or directly, or (2) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Thus, if the plaintiff has pointed to evidence sufficiently to discredit the defendant's proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case.Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); see also Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1065-72 (3d Cir. 1996) (en banc) (reaffirming the summary judgment standard set forth inFuentes), cert denied, U.S., 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997). A plaintiff can discredit an employer's explanation by demonstrating "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence and hence infer that the employer did not act for [the asserted] non-discriminatory reasons." Fuentes, 32 F.3d at 765 (citations and internal quotes omitted).
A defendant in a Title VII discriminatory discharge case is entitled to summary judgment if it can show either that the plaintiff has failed to establish a prima facie case of discrimination or, if the plaintiff has made out a prima facie case, that the plaintiff has not produced sufficient evidence to rebut the defendant's proffered nondiscriminatory explanation for the discharge. Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990); Stinson v. Delaware River Port Auth., 935 F. Supp. 531, 539 (D.N.J. 1996), aff'd without op., 124 F.3d 188 (1997). In the present case, CCPD is entitled to summary judgment for both reasons.
Johnson has failed to establish a prima facie case of discriminatory discharge because the evidence of disparate treatment he has presented in opposition to CCPD's motion does not conform with the claim he preserved for trial in the Joint Final Pretrial Order. The only discrimination claim Johnson preserved for trial is whether he was unlawfully terminated on the basis of his race, but the evidence of disparate treatment Johnson has presented in opposition to CCPD's motion relates solely to claims the court has deemed abandoned due to Johnson's failure to include them in the Joint Final Pretrial Order, such as his claims that he was previously charged with abuse of the sick time policy and required to appear at a hearing while white officers were not, required to write special incident reports while white officers were not, and denied requested vacation days while the requests of white officers were granted. None of those alleged disparities were the subject of the finding at issue in this case, namely, that Johnson acted in a manner unbecoming a police officer in attempting to use his position as a police officer to obtain more favorable treatment for his brother with the Camden County Sheriff's Department and that his conduct was unprofessional when he was advised of the disciplinary charge. Johnson has not presented any evidence that suggests that any white police officer engaged in similar unprofessional conduct without disciplinary consequences, nor has Johnson come forward with any evidence that white police officers charged with and found guilty of conduct unbecoming a police officer, as he was, were disciplined less harshly than he was. In the absence of such evidence, Johnson cannot show that similarly situated non-members of the protected class were treated more favorably than he was — an essential element of his prima facie case.
Furthermore, even if Johnson had satisfied that essential element, Johnson has failed to come forward with any evidence to rebut the legitimate, non-discriminatory reasons for his termination set forth by Pugh in his June 18, 1996 memorandum explaining his decision to set aside Maroccia's recommended penalty and impose a harsher one. In fact, perhaps because Pugh is also black, Johnson has refused to implicate Pugh in the alleged discrimination. Instead, Johnson has speculated that Pugh may not have actually written or signed the memorandum, or that he may not have read it if he signed it. (See Transcript of Johnson's Deposition at 136:19 — 138:1; 264:12 — 266:20.) Johnson has also suggested, based on the fact that Chandler received a copy of the memorandum, that Chandler may have had a hand in the decision to terminate him. (See Plaintiff's Brief at pg. 10-11.) In his affidavit, however, Pugh states unequivocally that he made the decision to terminate Johnson and that he wrote and signed the memorandum. (Defendant's Exhibit E at ¶ 14.) In light of Pugh's sworn statement, which is unrebutted, Johnson's contention that Pugh was an unwitting puppet of Chandler does not create a genuine issue of material fact that precludes the entry of summary judgment in favor of CCPD. Johnson has simply failed to come forward with any evidence that casts doubt on the proffered reasons for his termination, either circumstantially or directly. Thus, the reasons for termination remain unrebutted and Johnson has failed to carry his burden under the McDonnell Douglas/Burdine/Hicks test.
New Jersey courts generally follow the standards of proof applicable under federal anti-discrimination statutes like Title VII in cases arising under the NJLAD. See McKenna v. Pacific Rail Serv., 32 F.3d 820, 827-28 (3d Cir. 1994) (noting exceptions). The court is not aware of any reason why the New Jersey Supreme Court would apply different standards in the instant case than the ones discussed above. Thus, the aforementioned deficiencies that doom Johnson's Title VII claim are also fatal to his NJLAD claim.
Accordingly, the court grants CCPD's motion for summary judgment on Johnson's Title VII/NJLAD claim.
E. Johnson's Intentional Infliction of Emotional Distress Claim
In order to prove intentional infliction of emotional distress under New Jersey law, a plaintiff must demonstrate that the defendant's conduct was "`[s]o outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.'" Erit v. Judge, Inc., 961 F. Supp. 774, 781 (D.N.J. 1997) (quoting Buckley v. Trenton Saving Fund. Soc., 111 N.J. 355, 365-66 (1988)). Additionally, the emotional distress suffered by the plaintiff must be "`so severe that no reasonable man could be expected to endure it.'" Id. It is for the court to decide in the first instance, as a matter of law, whether such severe emotional distress can be found in a particular case. Buckley, 111 N.J. at 367.
In the present case, Johnson has not met his burden of demonstrating that CCPD's conduct was so outrageous and extreme as to support a finding of intentional infliction of emotional distress. "[T]he limited scope of the tort tolerates many kinds of unjust, unfair and unkind conduct."Fregara v. Jet Aviation Bus. Jets, 764 F. Supp. 950, 956 (D.N.J. 1991) (quoting Cautilli v. G.A.F. Corp., 531 F. Supp. 71, 74 (E.D.Pa. 1982) (applying New Jersey law)). Indeed, "it is extremely rare to find conduct in the employment context which will rise to the level of outrageousness necessary to provide a basis for recovery." Ferraro v. Bell Atlantic Co., Inc., 2 F. Supp.2d 577, 588 (D.N.J. 1998) (quoting Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)). As noted above, Johnson has failed to come forward with any evidence to rebut the legitimate, non-discriminatory reasons Pugh set forth in his June 18, 1996 memorandum explaining his decision to terminate Johnson's employment. Under these circumstances, no reasonable factfinder could possibly find that CCPD's conduct was sufficiently outrageous or extreme to permit Johnson to recover on this claim.
Furthermore, the court finds as a matter of law that no reasonable factfinder could find that Johnson suffered emotional distress severe enough to support a recovery. "New Jersey courts require expert testimony to prove the causal link between a claimed injury and the tortious act alleged when the plaintiff is claiming that he or she suffered subjective injury (such as pain, humiliation, emotional distress) that is not obviously related to an identifiable injury." McKenna, 32 F.3d 833 (citing Kelly v. Borwegen, 95 N.J. Super. 240, 243-33 (App.Div. 1967)). Johnson has not come forward with any expert testimony in support of his claim. Indeed, there is no evidence that Johnson ever sought professional medical attention for his alleged emotional distress. See Fleming v. United Parcel Service, Inc., 255 N.J. Super. 108, 167 (Law Div. 1992),aff'd, 273 N.J. Super. 526 (App.Div. 1994), certif. denied, 138 N.J. 264 (1994), cert. denied, 516 U.S. 847 (1995) (granting summary judgment for defendant on intentional infliction of emotional distress claim where plaintiff offered no evidence of medical treatment for alleged emotional distress).
Accordingly, the court grants CCPD's motion for summary judgment on Johnson's intentional infliction of emotional distress claim.
CONCLUSION
For the foregoing reasons, the court grants CCPD's motion for summary judgment and dismisses Johnson's Complaint. The accompanying Order will be entered.
ORDER GRANTING SUMMARY JUDGMENT
THIS MATTER having come before the court on defendant's motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56(b), and the court having considered the submissions of the parties, and for the reasons set forth in the accompanying Opinion;
IT IS on this day of December, 1998, hereby ORDERED that defendant's motion for summary judgment is GRANTED and that plaintiff's Complaint is DISMISSED with prejudice.