Motion for New Trial in Polite Brian Vs State Of New Jersey| Trellis.Law

On March 28, 2023 a Motion-Secondary was filed involving a dispute between Brian Polite, Damon Crawford, and Nj Division State Police, Sean Kilcommons, State Of New Jersey, for Law Against Discrimination (Lad) Cases in the District Court of Mercer County.

Preview
MER-L-000588-23 01/25/2024 10:39:37 AM Pg1of44 Trans ID: LCV2024215711

Philip S. Burnham, II, Esq.

BURNHAM
Licensed
in NJ & PA
Atty ID 030951990

DOUGLASSNot a Partnership
Michelle J. Douglass, Esq., Of Counsel
Licensed in NJ
Certifiedas a Civil Trial Lawyer by the Supreme
Atty ID 025091988
Court of NJ
www.burnhamdou; s.com
info@burnhamdougiass.com Keith W. Diener, Esq., LL.M.
Licensed in NJ, NC, VA & D.C.
Atty ID 227612016

Arykah A. Trabosh, Esq., Of Counsel
Licensed in NJ & PA
Atty ID 004112009

January 25, 2024

Via: ECourts and USPS Priority Mail
Honorable Mitchel E. Ostrer, J.S.C.
Mercer County Civil Courthouse
175 South Broad Street, 3rd Floor
Trenton, NJ 08650

Re: Brian Polite, et al. v. State of New Jersey, et al.
Docket No. MER-L-000588-23

Dear Judge Ostrer,

We trust this letter finds you well. We respectfully oppose the Defendants' Motion for

Reconsideration, asserting the Court's sound decision on Brian Polite's denial of promotional

opportunities claims.

The Court's Order of November 17, 2023, distinctively recognized a valid claim for

denial of promotional opportunities despite dismissing the failure-to-promote claim. This crucial

distinction aligns with the case's facts and legal principles. As noted by the Court:

Main office: 8000 Sagemore Dr, Suite 8303, Marlton, NJ 08053 T: 856-751-5505 Fax: 856-751-5516
Northfield Office: 450 Tilton Rd, Suite 200B, Northfield, NJ 08225

This correspondence contains confidential material and may not be used for purposes inimical to NJ Evidence Rule
408 regarding settlement negotiations.
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 2of44 Trans ID: LCV2024215711

January 25, 2024
Pg, 2/5

"The court reaches a different conclusion regarding Polite’s claim that he was

denied promotional opportunities. Here, Polite claims that defendants limited

his prospects by transferring him from his command position in Troop C,

reducing his authority in community affairs, and denying him interviews for a

future lieutenant colonel position. All these steps hurt Polite’s chances for a

promotion in the future." (Exhibit “1”)

The court's decision was grounded in sound legal reasoning and a careful examination of

the facts presented. The Court appropriately distinguished between a failure-to-promote claim

and a denial-of-promotional-opportunities claim, recognizing the validity of the latter despite

dismissing the former.

Furthermore, the Court referred to limited New Jersey case law on denial of promotional

opportunities but acknowledged that New Jersey courts recognize that "disadvantageous

transfers or assignments" may constitute adverse employment actions under the Law Against

Discrimination (LAD). The Court cited specific cases supporting this principle:

e Mancini v. Township of Teaneck, 349 N.J. Super. 527 (App. Div. 2002)

e Richter v. Oakland Bd. of Educ., 459 N.J. Super. 400 (App. Div. 2019)

e Marrero v. Camden County Bd. of Social Services, 164 F.Supp. 455 (D.N.J. 2001)

While not directly establishing denial of promotional opportunities as an independent

claim, the Court referred to persuasive federal cases to outline the potential contours of such a

claim:

Main office: 8000 Sagemore Dr, Suite 8303, Marlton, NJ 08053 T: 856-751-5505 Fax: 856-751-5516
Northfield Office: 450 Tilton Rd, Suite 200B, Northfield, NJ 08225

January 25, 2024
Pg. 3/5

e Bonenberger vy. St. Louis Metropolitan Police Department, 810 F.3d 1103 (8th Cir.

2016)
e Boone v. Goldin, 178 F. 3d 253 (4th Cir. 1999)

Notably, Defendants failed to cite any specific prohibition under NJLAD for such a

claim. The evolving landscape of employment case law, including under NJLAD, supports the

Court's decision. Courts often need to interpret and apply workplace discrimination laws to a

variety of new situations and challenges. The case law makes clear that the elements of a prima

facie case may vary depending on the type of discrimination claim being made. See, e.g.,

Erickson v. Marsh McLennan Co., 117 N.J. 539 (N.J. 1990)(the court was first called on to

determine whether the plaintiff had a cognizable cause of action for reverse discrimination and

determined the appropriate criteria for evaluating a gender-based claim of reverse employment

discrimination); Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (N.J. 1993)(the court was first called

on to identify a cause of action for a hostile work environment finding that a plaintiff states a

cause of action for hostile work environment sexual harassment when he or she alleges

discriminatory conduct that a reasonable person of the same sex in the plaintiff's position would

consider sufficiently severe or pervasive to alter the conditions of employment and to create an

intimidating, hostile, or offensive working environment); Bergen Commercial Bank v. Sisler, 157

N.J. 188 (1999) ( the court was first called on to determine whether an age discrimination claim

exists for a younger person, less than 40 years of age, and if so, its concomitant elements for

establishing such a claim); Victor v. State, 203 N.J. 383 (2010) (the court was first called on to

Main office: 8000 Sagemore Dr, Suite 8303, Marlton, NJ 08053 T: 856-751-5505 Fax: 856-751-5516
Northfield Office: 450 Tilton Rd, Suite 200B, Northfield, NJ 08225

January 25, 2024
Pg. 4/5

consider whether the LAD's failure to accommodate cause of action includes adverse

employment consequences as one of the elements of the prima facie case); Delanoy v. Township

of Ocean, 462 N.J. Super. 78 (App. Div. 2020)(the court was first called on to interpret the New

Jersey Pregnant Workers Act, a statute that had yet to be construed in a published opinion,

finding that the employer’s maternity policy unlawfully discriminates against pregnant workers

compared to non pregnant workers who can seek and potentially obtain a waiver from the Police

Chief).
As societal norms and workplace practices evolve, so does the case law on

discrimination. This ensures that the law remains relevant and effective in protecting employees

from being treated unfairly based on certain protected characteristics.

In the case at hand, the Court established the essential elements for a

denial-of-promotional-opportunities claim, emphasizing distinctions from a failure-to-promote

claim as follows:

The plaintiffis a member of a protected class.

He was qualified for assignments or transfers that would enhance his

opportunities for promotion.

He was denied or stripped of such assignments or transfers.

The assignments or transfers were granted to non-minority candidates with the

same or lesser qualifications.

Main office: 8000 Sagemore Dr, Suite 8303, Marlton, NJ 08053 T: 856-751-5505 Fax: 856-751-5516
Northfield Office: 450 Tilton Rd, Suite 200B, Northfield, NJ 08225

January 25, 2024
Pg. 5/5

In summarizing this cause of action, the Court emphasized that the denial of promotional

opportunities claim differs from a failure-to-promote claim, including the additional element that

the assignments or transfers were granted to non-Black candidates with similar or lesser

qualifications than Polite. Contrary to the assertions made by the Defendants, the Court's

decision is supported by legal precedent and a thorough analysis of the facts. Moreover,

Defendants have failed to cite any case law specifically prohibiting a claim for the denial of

promotional opportunities under the NJILAD.

In conclusion, the Court's decision stands legally sound and factually supported. Mr.

Polite's claim for denial of promotional opportunities survives the motion to dismiss and

reconsideration.

Respectfully,

BURNHAM DOUGLASS
Attorneys for Brian Polite
and Damon Crawford

4s/ Michelle J. Douglass
Michelle J. Douglass, Esq.

4s/ Philip S. Burnham, IT
Philip S. Burnham, II, Esq.

Encls.

C.C. Melissa A. Salimbene, Esq. and Lindsay A. Dischley, Esq. (Via: ECourts Only)
Joan M. Schwab, Esq. and Amy K. Smith, Esq. (Via: ECourts Only)
Brian Polite and Damon Crawford (Via: Email Only)

Main office: 8000 Sagemore Dr, Suite 8303, Marlton, NJ 08053 T: 856-751-5505 Fax: 856-751-5516
Northfield Office: 450 Tilton Rd, Suite 200B, Northfield, NJ 08225

EXHIBIT 1
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 7of44 Trans ID: LCV2024215711

SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY - LAW DIVISION
CIVIL PART
P.O. BOX 8068
TRENTON, NJ 08650
ORDER - Prepared by the Court

BRIAN POLITE and DAMON SUPERIOR COURT OF NEW JERSEY
CRAWFORD, LAW DIVISION — CIVIL PART
MERCER COUNTY
Plaintiffs,
DOCKET NO. MER-L-000588-23

ORDER

STATE OF NEW JERSEY, STATE OF
NEW JERSEY DIVISION OF STATE
POLICE, DEPUTY SUPERINTENDENT
SEAN KILCOMONS (in his official and
individual capacity),

Defendants.

THIS MATTER having been brought before the Court by the State of New Jersey and the

State of New Jersey Division of State Police, by their attorneys Chiesa Shahinian & Giantomasi

PC (Melissa A. Salimbene, Esq., appearing), and by Deputy Superintendent Sean Kilcomons, by

his attorneys Saiber LLC (Joan M. Schwab, Esq., appearing), for an order dismissing the complaint

and striking a part of the complaint,

And plaintiffs, by their attorneys, Burnham Douglass (Michelle J. Douglass, Esq.,

appearing), opposing the motion,

And the court having considered the papers on file and having heard and considered the

oral arguments of counsel on October 3, 2023,

And for good cause shown and for the reasons set forth in the court’s written opinion

It is on this 17 day of November 2023, hereby ORDERED:

1 The motion of the State of New Jersey and the State of New Jersey Division of State Police

(“State defendants”) to dismiss the complaint of plaintiff Damon Crawford is denied
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 8 of 44 Trans ID: LCV2024215711

without prejudice, inasmuch as Crawford concedes his complaint is limited to a claim of

hostile work environment and racial harassment and the State defendants do not seek

dismissal of that claim at this time.

Kilcomons’s motion to dismiss the complaint of plaintiff Damon Crawford is dismissed as

moot, inasmuch as Crawford concedes his complaint does not assert any claim against

Kilcomons in his official or individual capacity.

Defendants’ motion to dismiss the complaint of plaintiff Brian Polite is denied in part and

granted in part; specifically:

a. The motion to dismiss Polite’s complaint based on a hostile work environment

racial harassment is denied without prejudice.

The motion to dismiss Polite’s complaint based on a failure to promote is granted,

and Polite’s claim based on a failure to promote is dismissed without prejudice.

The motion to dismiss Polite’s complaint based on a failure to provide promotional

opportunities is denied without prejudice.

The motion to dismiss Polite’s complaint based on disparate treatment is denied

without prejudice.

The motion to dismiss Polite’s complaint based on retaliation is granted, and

Polite’s claim based on retaliation is dismissed without prejudice.

4. Defendants’ motion to strike paragraph 62 of the complaint is denied without prejudice.

/s/ Mitchel£. Ostrer
HON. MITCHEL E. OSTRER, J.A.D.
(retired and temporarily assigned on recall)
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 9of44 Trans ID: LCV2024215711

NOT TO BE PUBLISHED WITHOUT
THE APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY
LAW DIVISION, CIVIL PART
DOCKET NUMBER MER-L-000588-23

BRIAN POLITE AND DAMON
CRAWFORD,
Plaintiffs,
Vv.
STATE OF NEW JERSEY, STATE
OF NEW JERSEY DIVISON OF
STATE POLICE, DEPUTY
SUPERINTENDENT SEAN
KILCOMONS (IN HIS OFFICIAL
AND INDIVIDUAL
CAPACITY),
Defendants.

Decided: November 17, 2023

MICHELLE J. DOUGLASS, attorney for plaintiff (Burnham Douglass).

MELISSA A. SALIMBENE, attorney for defendants State of New Jersey and
New Jersey State Police (Chiesa Shahinian & Giantomasi PC).

JOAN M. SCHWAB, attorney for defendant Sean Kilcomons (Saiber LLC)

OSTRER, J.A.D. (retired and temporarily assigned on recall):

This is an employment discrimination case. Plaintiffs Brian Polite and

Damon Crawford are Black officers in the New Jersey State Police (“NJSP”).

Polite has achieved the rank of major. Invoking the Law Against Discrimination
3
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 10 of 44 Trans ID: LCV2024215711

(“LAD”), N.J.S.A. 10:5-1 to -42, Polite contends that defendants — the State, the

NJSP, and its deputy superintendent Sean Kilcomons — unlawfully subjected him

to a hostile work environment based on race, discriminated against him by denying

him a promotion and promotional opportunities, subjected him to disparate

treatment based on race, and retaliated against him. Crawford, a lieutenant and a

member of Polite’s command, alleges the State and the NJSP unlawfully subjected

him to a hostile work environment based on race. Polite and Crawford seek

various forms of injunctive and monetary relief. In lieu of answers, the State and

the NJSP (“State defendants”) and Kilcomons have separately moved under Rule

4:6-2(e) to dismiss the complaint for failure to state a claim on which relief may be

granted. Defendants also move to strike part of the complaint — paragraph 62 --

pursuant to Rule 4:6-4(b), which empowers the court to strike any part of a

pleading that is immaterial or redundant.

Subsequent briefing has clarified that the dismissal motion pertains only to

Polite’s claims. Although Crawford’s claims may be read broadly, plaintiffs

concede that Crawford narrowly asserts only a hostile-work-environment claim,

and only against the State defendants. The State does not seek dismissal of

Crawford’s complaint as so limited, and Kilcomons’s motion to dismiss does not

reach Crawford’s complaint because Crawford asserts no claim against Kilcomons.
MER-L-000588-23 01/25/2024 10:39:37 AM Pg11of44 Trans ID: LCV2024215711

Having reviewed Polite’s complaint “in depth and with liberality,” Printing

Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di

Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div.

1957)), the court grants defendants’ motion in part and denies the motion in part.

Dismissal, to the extent granted, is without prejudice. See Smith v. SBC

Cc ‘omuns.. Inc., 178 N.J. 265, 282 (2004) (stating a motion to dismiss, if granted,

“should be . . . ordinarily without prejudice”). The court also denies the motion to

strike paragraph 62. At this early stage, the court cannot fairly assess the

materiality of the allegations, which recount an alleged history of discrimination

within the NJSP.

In general, Polite’s allegations pertain to his dashed aspirations to move up

from major to lieutenant colonel. He contends he was qualified, but his

supervisors did not promote him. They frustrated his aspirations partly by denying

him the experiences needed to position him for advancement. He argues racial

animus was at play in those decisions. Also, pointing to race-related remarks about

him and other actions affecting his employment, Polite contends he experienced a

hostile workplace based on race.!

1 Notably, the complaint does not clearly align the factual allegations with the
specific forms of discrimination — e.g. hostile work environment, failure to
promote and denial of promotional opportunities, disparate treatment, and
5
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 12 0f44 Trans ID: LCV2024215711

We take Polite’s factual allegations as true, extending to him “all reasonable

inferences.” See NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365 (2006)

(stating “the court should assume that the nonmovant’s allegations are true and

give that party the benefit of all reasonable inferences”); Wild v. Carriage Funeral

Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019) (“assuming the truth” of the

plaintiff's allegations in reviewing a motion to dismiss a LAD claim), aff'd o.b.,

241 N.J. 285 (2020).
Turning to specifics, Polite became a major in late 2017, after sixteen years

with the NJSP. §§ 44-45. Three years later, he spoke to then-Deputy

Superintendent and Lieutenant Colonel Geoffrey Noble about advancing to

lieutenant colonel. § 46. Noble told Polite that his current assignment and

responsibilities did not position him well for advancement. {ff 47-48. Polite had

worked in community affairs, commanding units that handled public information

and recruiting, among others. § 48. Noble advised Polite he would need to

transfer from community affairs and command a larger group. § 48. Shortly

afterwards, in January 2021, Noble offered Polite a spot commanding Troop C

Field Operations, which Polite accepted because he believed it would position him

for advancement as Noble had previously advised. {{] 49-50.

retaliation. However, in opposing the dismissal motions, plaintiffs attempt to
marshal the alleged facts, as appropriate, to sustain each asserted cause of action.
6
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 13 0f 44 Trans ID: LCV2024215711

While Polite commanded Troop C, the position of deputy branch

commander of field operations became vacant. 51. That position was a known

stepping-stone to lieutenant colonel of operations.” §52. At the time, Polite was

the most senior major in field operations. 455. Polite complains that Kilcomons,

a white man, obtained the deputy branch commander spot. §{ 53, 57-61.

When Kilcomons moved up to deputy branch commander, Polite was

involuntarily transferred back to community affairs, taking him “out of contention”

for an expected lieutenant colonel vacancy. 56. When that vacancy occurred —

the complaint does not say when -- it evidently went to Kilcomons. Polite alleges

that his transfer back to community affairs “clear[ed] the path” for Kilcomons to

fill the lieutenant colonel vacancy. §/57. Polite contends that NJSP Superintendent

and Colonel Patrick Callahan, a white man, “was responsible, in whole or in part,”

for Polite’s and Kilcomons’s respective transfers to “clear the way for his friend

Kilcommons [sic] to become the next [lieutenant colonel].” §] 59, 61.

Regarding both the deputy branch commander position and the lieutenant

colonel positions, Polite does not specifically allege he formally applied for the

promotion or that he otherwise conveyed to the appropriate decisionmaker his

? The complaint does not clearly outline the NJSP’s organizational hierarchy, but
the court infers that the deputy branch commander of field operations holds a
higher position than the commander of an individual troop such as Troop C,
although majors evidently may occupy both positions.
7
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 14 of 44 Trans ID: LCV2024215711

interest in advancing to that position, other than his discussions in 2020 with

Noble.’ Rather, he alleges generally that “he was qualified for the positions and/or

ranks he sought,” § 159; he was denied them, § 160; and they went instead to less

qualified candidates who were not Black. § 158. Polite specifically alleges he was

more qualified than Kilcomons for the lieutenant colonel position. §57. Polite

contends defendants subjected him to “differential, worse, and intentionally

discriminatory treatment based on race.” 157. Polite also alleges generally that,
99 ee]
compared to “minority troopers, [w]hite male [troopers] are granted promotions

but [are] not subject to the same scrutiny” nor are they “asked to have the same

qualifications.” 62. He also contends “[wJhite males are not subjected to

harassment.” § 62.

By November 2022, Kilcomons was a lieutenant colonel and the deputy

superintendent while Polite was back commanding community affairs. § 72.

Around that time, Polite’s secretary Deborah Deitz-Slebodnick reported to Polite

that Kilcomons made a racist remark about Polite at someone’s retirement party.

{ 66-69. In his remark to Deitz-Slebodnick and her colleagues, Kilcomons

evidently hinted about his decision, which he had not yet implemented, to strip

Polite of a unit within his command. { 67, 69. Kilcomons allegedly told Deitz-

3 As the complaint does not specify when Noble retired, it is unclear whether his
knowledge of Polite’s interest may be imputed to the decisionmaker.
8
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 15 of 44 Trans ID: LCV2024215711

Slebodnick, “Shit is about to change and your boss is gonna shit his underwear —

His underwear is gonna be darker than his skin.” § 69.4 Consistent with his

statement to Deitz-Slebodnick, the next month, Kilcomons advised officers who

reported to Polite — but not to Polite himself — that Kilcomons planned to take

control of the public information unit, which had been under Polite’s command for

twelve years. § 75. That same month, again in Polite’s absence, Kilcomons

informed attendees at a meeting that he intended to remove a second unit from

Polite’s command, this one pertaining to recruitment, and place it under field

operations. § 81.5

Polite alleges that removing the public information unit was an “unjustified”

step, § 76, which was designed to limit Polite’s exposure to the Attorney General’s

Office and Governor’s Office, { 79, and “limit the diversity of troopers and

community members featured in social media posts,” § 80. Kilcomons was also

“trying to undo the progress Polite’s section ha[d] made with minority

communities throughout the State in terms of recruiting and community outreach.”

| 86. Polite alleges that removing the public information unit was “retributive,”

but he does not expressly allege the reason for Kilcomons’ alleged retribution.

4 For convenience, the court will sometimes refer to this statement as the
“underwear remark.”
5 Without presenting any cognizable evidence, see R. 1:6-2(a), R. 1:6-6, defendants
contend that the recruitment unit ultimately remained within Polite’s command.
9
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 16 of 44 Trans ID: LCV2024215711

However, as noted previously, Polite alleges generally that defendants subjected

him “to differential, worse, and intentionally discriminatory treatment based on

race.” § 157.

Polite alleges that neither he nor any other minority group members or

women were offered the opportunity to interview for the most recent lieutenant

colonel opening — evidently one that arose after Kilcomons’s promotion. § 89.

Polite contends Kilcomons decided to hinder Polite’s upward mobility within the

NJSP and deny him the opportunity to interview for future lieutenant colonel

openings. § 92. To support that assertion, Polite alleges that Kilcomons told

Major Wanda Stojanov at a meeting in January 2023 that “Brian [Polite] had his

shot in Troop C,” when asked why Polite was not offered an interview for the most

recent lieutenant colonel opening. § 89-91.

Two months later, Polite learned of another racist remark that a white

trooper made about him outside his presence. At a meeting in early March 2023,

Captain Phil Stolfa, a supervisory captain and then chief of the employee health

and wellness bureau within Polite’s command, allegedly referred to Polite as the

“HN.LC.” §§ 102, 124-131. The complaint explains that “H” means “head,” “N”

means the racist epithet, and “I.C.” means “in charge.” {| 102. Crawford was the

only Black person present. § 106. He was extremely offended; the comment

bothered him, and made him uncomfortable, embarrassed, anxious, and stressed.

10
MER-L-000588-23 01/25/2024 10:39:37 AM Pg17 of 44 Trans ID: LCV2024215711

9 133, 138, 141. He immediately reported the racist statement to his superiors —

including Polite among others -- and to the NJSP’s EEO division. {§ 106, 133.

Stolfa is good friends with Kilcomons. §117. Stolfa was transferred out of

Polite’s command, but was moved to lead a larger unit with more personnel. §

109.

The complaint alleges that in “on or about December 3, 2022, Polite did

report the above to the New Jersey State Comptroller, Kevin Walsh.” § 93. The

court presumes that Polite reported to Walsh the incidents alleged in the

complaint’s preceding paragraphs that pre-dated December 3, 2022. Those

incidents included his transfer to and then from Troop C, his failure to receive

promotions, and Kilcomon’s racist remark.° In mid-March 2023, Polite expressed

dissatisfaction with the response to Stolfa’s racist remark to Major Mark Santiago,

administrative branch executive officer. {{ 108-115.

Evidently to support Polite’s claim that Kilcomons is personally liable for

his actions, Polite alleges that “Kilcomons is charged with acts which aided and/or

abetted himself in unlawful activities.” 25. The complaint also alleges that

© Obviously, on December 3, 2022, Polite could not have reported Kilcomons’s
December 6, 2022 meeting disclosing plans to strip Polite of the public information
unit, § 75; Kilcomons’s December 7, 2022 meeting disclosing plans to strip Polite
of the recruiting unit, §/ 81; Kilcomons’s January 5, 2023 statement that Polite “had
his shot,” § 91; or Stolfa’s March 2023 racist remark, § 102. Polite does not allege
that he later amended his complaint to Walsh to incorporate these subsequent
events.

11
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 18 of 44 Trans ID: LCV2024215711

Kilcomons, while acting as a NJSP policymaker “under color of state law was

aided and abetted in his ability to discriminate and/or engage in unlawful

activities.” § 24.

Polite and Crawford filed their complaint on March 28, 2023. Kilcomons’s

and the State defendants’ motions followed.

IL.

In deciding a motion to dismiss for failure to state a claim on which relief

may be granted, the court examines only “the legal sufficiency of the facts alleged

on the face of the complaint.” Printing Mart-Morristown, 116 N.J. at 746. The

standard is “generous and hospitable” to the non-movant. Ibid. The court

considers simply “whether a cause of action is ‘suggested’ by the facts” without

concerning itself with a plaintiff's “ability . . . to prove the allegation contained in

the complaint.” Ibid. (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189,

192 (1988). Rather, the court extends to a plaintiff “every reasonable inference of

fact.” Ibid.

Nonetheless, the court is obliged to dismiss a complaint if a plaintiff fails “t

articulate a legal basis entitling plaintiff to relief.” Sickles v. Cabot Corp., 379 N.J.

Super. 100, 106 (App. Div. 2005). A complaint must also state “the facts on

which the claim is based,” R. 4:5-2, giving “some detail of the cause of action.”

12
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 19 of 44 Trans ID: LCV2024215711

Printing Mart-Morristown, 116 NJ. at 768. “[C]onclusory allegations are

insufficient.” Schidt v. DRS Techs.. Inc., 424 N.J. Super. 188, 193 (App. Div.

2013).
The court also applies “special rules of interpretation” to the LAD. Nini v.

Mercer Cty. Cmty. Coll., 202 N.J. 98, 108 (2010). The Court liberally construes

the statute to advance its remedial purposes. Ibid. And “even ‘novel arguments

advanced by victims of workplace discrimination ‘require [the court’s] utmost care

and attention” to vindicate the LAD’s goal of “workplace equality.” Smith v.

Millville Rescue Squad, 225 N.J. 373, 390 (2016) (quoting Quinlan v. Curtiss-

Wright Corp., 204 N.J. 239, 260 (2010).
B

As noted, Polite’s complaint does not neatly align the factual allegations

with the elements of the various forms of alleged discrimination. However, in

opposing the dismissal motions, Polite tries to marshal enough facts to sustain four

distinct discrimination claims: (1) hostile work environment racial harassment; (2)

failure to promote and denial of promotional opportunities; (3) race discrimination

or disparate treatment; and (4) retaliation. The court considers each in turn.

To state a hostile-work-environment-racial-harassment claim, a plaintiff

must satisfy a version of the four-prong test first enunciated in Lehmann v. Toy:

13
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 20 of 44 Trans ID: LCV2024215711

«
R’Us, Inc., 132 N.J. 587, 603-04 (1993), a case of sexual harassment. In

Lehmann. the plaintiff was required to show “the complained-of conduct (1) would

not have occurred but for the employee's gender; and it was (2) severe or

pervasive enough to make a (3) reasonable woman believe that (4) the conditions

of employment are altered and the working environment is hostile or abusive.”

Ibid. (emphasis deleted). Applied here, Polite must demonstrate “conduct (1)

would not have occurred but for the employee’s [race]; and [the conduct] was (2)

severe or pervasive enough to make a (3) reasonable [African American] believe

that (4) the conditions of employment are altered and the working environment is

hostile or abusive.” Taylor v. Metzger, 152 N.J. 490, 498 (1998) (quoting

Lehmann, 132 NJ. at 603-04 (alterations in original)).

The State defendants and Kilcomons contend Polite’s claim must fail

because it relies solely on comments — Kilcomons’s underwear remark and Stolfa’s

“H.N.LC.” remark — made outside Polite’s presence. Kilcomons also contends

they are not sufficiently “severe or pervasive.” Polite rejects the premise that a

hostile-work-environment claim must rely on statements the plaintiff witnessed. In

any event, Polite contends that defendants also created a hostile work environment

by their other actions, such as restricting his promotional opportunities, stripping

units from his command, excluding him from meetings, and failing to take

remedial action. The State defendants reply that Polite did not allege these other

14
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 21 0f44 Trans ID: LCV2024215711

actions were race-based. Kilcomons also contends that actions by persons other

than himself cannot support Polite’s hostile-work-environment claim against him.

To support the argument that unwitnessed statements are “irrelevant,” SDb9,

KDrb8,’ defendants rely on the Supreme Court’s statement in Godfrey v. Princeton

Theological Seminary, 196 N.J. 178, 202 (2008): “To satisfy the severe-or-

pervasive element of a hostile work environment claim, a plaintiff must marshal

evidence of bad conduct of which she [or he] has firsthand knowledge.” But

“firsthand knowledge” is not an inelastic concept. The court in Morris v. Rutgers-

Newark University, 472 N.J. Super. 335, 351 (App. Div. 2022) held “words spoken

to one member of [a] small group” may be the “functional equivalent of saying

those words to all.”

In Godfrey, two female students claimed the seminary they attended was

liable for sexual harassment because a male who graduated many years earlier and

who lived on campus annoyed and distressed them by persistently and

unwelcomely pursuing them romantically. The plaintiffs tried to bolster their

claim by citing a seminary employee’s statement that the man had pursued her

when she was a student twenty years earlier, and that the man had pursued other

women as well. The Court held that the plaintiffs could not rely on the employee’s

7 “SD” refers to State defendants; “KD” refers to Kilcomons; “b” refers to an initial
brief: and “rb” refers to a reply brief.
15
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 22 of 44 Trans ID: LCV2024215711

statement; each plaintiff “must marshal evidence of bad conduct of which she has

firsthand knowledge.” 196 N.J. at 201.

But the Court suggested that personally witnessing bad conduct is not the

only way to acquire firsthand knowledge: a plaintiff may meet the test if the

conduct is “directed at” the plaintiff, ibid.; in other words, if the plaintiff is the

target. The Godfrey Court concluded that the plaintiffs could not “bolster [their]

claims of a severe or pervasive hostile environment” because the man’s earlier

conduct “was neither directed at [the] plaintiffs, nor witnessed by them.” Ibid.

Conceivably, conduct directed at a plaintiff may be relevant, even if not

witnessed.®

8 A person may act hostilely toward a plaintiff in multiple ways and with varying
severity, including:
(A) ina plaintiffs presence by (1) speaking or acting badly directly to the
plaintiff about the plaintiff: (2) speaking directly to the plaintiff about the
group to which the plaintiff belongs; (3) speaking directly to the plaintiff
about another person who belongs to the plaintiff's group; (4) speaking in
the plaintiff's earshot about the plaintiff; (5) speaking in the plaintiff's
earshot about the plaintiff's group; (6) speaking in the plaintiff's earshot
about another person who belongs to the plaintiff's group; or
(B) outside the plaintiff's presence, by (1) speaking about the plaintiff to a
listener who (a) is likely to carry the message back to the plaintiff or (b)
is not likely to carry the message back; (2) speaking about the plaintiff's
group to a listener who (a) is likely to carry the message back to the
plaintiff or (b) is not likely to carry the message back; (3) speaking to or
acting badly toward a listener about the listener, who (a) is likely to carry
the statement back to the plaintiff or (b) is not likely to carry the
statement back..
Notably, Godfrey addressed the sufficiency of proofs in the (B)(3)(b) category,
which stings significantly less than hostile acts in category (B)(1)(a).
16
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 23 of 44 Trans ID: LCV2024215711

One can imagine a supervisor who continually referred to a Black

subordinate using a notorious racial epithet when speaking to the subordinate’s

own staff, co-workers, other supervisors, and persons outside the organization.

The supervisor never used the epithet when speaking directly to the Black

employee or in his presence, but the supervisor knew and intended that his remarks

would be conveyed to the Black employee. Through multiple sources, particularly

the subordinate’s own staff and co-workers, the subordinate learned that the

supervisor repeatedly referred to him that way. It would seem to matter little that

the Black employee did not witness the slurs that the supervisor directed toward

him. The remarks still cut deeply because they were ones of “insult, abuse and

belittlement” and the Black employee was their target. See Taylor, 152 N.J. at 510

(quoting Bradshaw v. Swagerty, 563 P.2d 511, 514 (Kan. App. 1977)). The

employee’s workplace was hostile although the boss spoke only behind the

subordinate’s back. Indeed, it may have been more hostile.

The Mortis court held that Godfrey > s “had-to-be witnessed condition” was

not intended to apply to a case in which a coach made derogatory comments to

multiple individual members of a women’s basketball team. Morris, 472 N.J.

Super. at 351-52. The court rejected the argument that individual plaintiff-

teammates who did not witness a comment could not elicit it to support their

hostile-environment claim. Ibid. The court noted that “plaintiffs were members of

17
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 24 of 44 Trans ID: LCV2024215711

a small unified subset of the student body,” and the speaker “must have understood

that his words would reach others” and “may have even intended the listener’s

dissemination of his words to the other team members.” Id. at 351.

“[W]hile Godfrey generally prevents a hostile-environment plaintiff from eliciting

{unwitnessed] evidence that another member of her protected class was similarly

harassed . . . this case . . . consists of claims asserted by members of a small group

and the evidence in question comes from within that small, identifiable group.” Id.

at 351-52. Godfrey did not bar plaintiff-teammates from “eliciting evidence of

similar conduct experienced by other team members even if they did not personally

witness it.” Id. at 352.

Like the plaintiffs in Morris, Polite may elicit the statement Kilcomons

allegedly made to Polite’s secretary, Deitz-Slebodnick, and the statement Stolfa

made to a lieutenant Crawford, who reported to Polite. A fact-finder may conclude

that each statement was “directed at” Polite. See Godfrey, 196 N.J. at 201.

Kilcomons’s statement did not pertain to just anyone; it pertained to Polite. To a

reasonable Black man, a hostile statement pertaining to himself would penetrate

more deeply than a statement made about another or about a group in general.

Kilcomons allegedly said he was going to make Polite “shit his underwear,”

boast reminiscent of other forms of white control of Black bodies: and he

compared Polite’s skin with the color of excrement. The alleged statement was a

18
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 25 of 44 Trans ID: LCV2024215711

crude, racist remark that asserted control over Polite and expressed his disdain and

racial hostility toward him.

A fact-finder may infer that Kilcomons “must have understood” and “may

have even intended,” see Morris, 472 N.J. Super. at 351, that his “underwear

remark” would reach Polite. Crediting the complaint as the court must, Kilcomons

spoke to Polite’s secretary and told her what was about to befall her “boss.”

Kilcomons must have known that Deitz-Slebodnick would convey it to Polite. A

similar inference may be drawn about Stolfa’s “H.N.L.C. remark.”

Deitz-Slebodnick and Crawford were as much, if not more, members of a

“team” — Polite’s professional team -- as the close-knit group of basketball players

in Morris. Deitz-Slebodnick, Crawford and Polite did not merely share an extra-

curricular activity for part of a school year. One may infer they worked together

closely full-time and year-round. In the typical office relationship, an executive

entrusts his or her secretary or administrative assistant with confidential

information essential to the executive’s job and depends on the secretary to further

the executive’s mission. That trust is at least as significant as the trust one college

athlete places in a teammate. As did the court in Morris, this court concludes that

Polite may elicit evidence of statements made to others on his professional “team”

that were about him and directed to him.

19
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 26 of 44 Trans ID: LCV2024215711

Polite also argues that his hostile-work-environment claim rests on more

than the statements made outside earshot. He points to his transfers, command

assignment reductions, denied promotion, and the inability to interview for future

lieutenant colonel openings. Pb6. He argues all these actions were racially

motivated. Pb6. The State defendants contend Polite does not allege racial

motivation in his complaint. SRb8.

Drawing reasonable inferences from the facts, the allegations regarding the

“underwear remark” suggest that race motivated the decision to reduce Polite’s

command by transferring the public information unit. “[E]vidence of [racist]

comments [to others] may be considered in determining whether facially neutral

conduct [toward the plaintiff] . . . was actually based on . . . race.” Caver v. City of

Trenton, 420 F.3d 243, 264 (3d Cir. 2005). A hostile-work-environment claim

may rest on such conduct if a jury could conclude that it was designed to harass an

employee based on race. Ibid. Thus, the Caver court held that a hostile-work-

environment claim could rest on proof that the defendants “wrote intentionally

false memos about the plaintiff and recommended him for psychiatric treatment in

order to harass him based on race hostile or harassing actions.” Ibid. So, Polite’s

hostile-work-environment claim rests on more than the “underwear remark” and

the “H.N.LC. remark”; it rests on the allegedly racially-motivated reduction of his

command.

20
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 27 of 44 Trans ID: LCV2024215711

No doubt, Polite’s complaint does not allege racial motivation as clearly as

his brief argues it, but Polite does allege generally that defendants subjected him to

“differential, worse, and intentionally discriminatory treatment based on race.” §

158. Polite also alleged that Kilcomons, a lesser qualified white man, advanced to

lieutenant colonel instead of him, a more qualified Black man. § 57. Drawing all

favorable inferences from Polite’s complaint, the court concludes that Polite has

alleged that “but for” his race, these steps would not have occurred. See Taylor,

152 N.J. at 498 (stating that hostile-work-environment plaintiff must demonstrate

that the conduct “would not have occurred but for the employee’s [race]”)

(alteration in original); see also C.V. v. Waterford Twp. Bd. of Educ., 255 N.J.289,

317 (2023) (stating that a LAD plaintiff need not prove that the protected

characteristic was the “sole or primary cause” of an adverse action; the plaintiff

need only show it was “one but-for cause”) (quoting Bostock v. Clayton County,

590 U.S. ,__, 140 S. Ct.1731, 1744-45, 207 L.Ed 2d 218 (2020)). The court

rejects the State defendants’ contention at oral argument that the allegation in

paragraph 158 was too conclusory.

The court also rejects Kilcomons’s argument that Polite’s allegations fail to

demonstrate “severe or pervasive” conduct as a matter of law. To decide if

conduct is “severe or pervasive,” a fact-finder must consider “the totality of the

relevant circumstances,” Godfrey, 196 N.J. at 196. That includes “(1) ‘the

21
MER-L-000588-23 01/25/2024 10:39:37 AM Pg 28 of 44 Trans ID: LCV2024215711

frequency of all the discriminatory conduct’; (2) ‘its severity’; (3) ‘whether it is

physically threatening or humiliation or a mere offensive utterance’; and (4)

‘whether it unreasonably interferes with an employee’s work performance.”” Ibid.

(quoting Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003)).

A single statement may be enough to satisfy the “severe or pervasive”

element. Taylor, 152 N.J. at 501. Such single-statement cases usually involve “an

outrageous and offensive statement made by a supervisor directly to the

complaining subordinate.” El-Sioufi v. St. Peter’s Univ. Hosp., 382 N.J. Super.

145, 179 (App. Div. 2005). But the court has already explained why the “had-to-

be-witnessed condition” may not apply here.

A court may consider the statement’s “connotation,” as well as its source,

since a supervisor’s statement has more punch than a co-worker’s. Id. at 502-

Case Info

Judge

R BRIAN Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

January 25, 2024

Case Filing Date

March 28, 2023

County

Parties

Brian Polite Plaintiff
Damon Crawford Plaintiff
Joan M Schwab Attorney for the Defendant
Melissa Anne Salimbene Attorney for the Defendant
Nj Division State Police Defendant
Philip Smith Burnham Attorney for the Plaintiff
Sean Kilcommons Defendant
State Of New Jersey Defendant
MICHELLE DOUGLASS Attorney
Keith Diener Attorney
MICHAEL SCHOTTLAND Attorney
Michael Riccobono Attorneys for Defendants

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: Polite Brian Vs State Of New Jersey

Preview

Related Topics

Case Info

Parties