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N.J.S.A. 10:5-1 to -49. At all relevant times, plaintiff was employed as a senior corrections officer by the Department of Corrections (DOC) at Northern State Prison (NSP). The named defendants occupied various positions of authority at the prison, specifically, Lydell Sherrer was the Administrator; Eric Stokes was an Assistant Superintendent; Vincent Sanders was Chief; Captain Richard Gilgallon, Lieutenant W.L. Mungro, Sergeant William Anderson, and Sergeant Darron Daye were all supervising officers at NSP. Plaintiff's complaint alleged a violation of the LAD based upon "national origin" (count one); violation of the LAD based upon a hostile work environment (count two); violation of the LAD based upon retaliation "because [he] made complaints in 2003 with the NSP EE Department and 2004 with the EEOC" (count three); violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (count four); bias crime in violation of N.J.S.A. 2A:53A-21 (count five); breach of the implied covenant of good faith and fair dealing (count six); intentional infliction of emotional distress (count seven); and defamation per se (count eight).1 "> Original

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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2363-09T3

BIENVENIDO MONTALVO and ILEANEXIS MONTALVO, his wife,

Plaintiffs-Appellants,

v.

STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF CORRECTIONS, NORTHERN STATE PRISON, SGT. DARRON DAYE, individually, SGT.
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WILLIAM ANDERSON, individually, LT. W.L. MUNGRO, individually, CAPT. RICHARD GILGALLON, individually, CHIEF VINCENT SANDERS, individually, ASSIST. SUPERINTENDENT ERIC STOKES, individually and ADMINISTRATOR LYDELL SHERRER,

Defendants-Respondents, _________________________________________________________ February 28, 2011

Submitted December 14, 2010 - Decided

Before Judges Messano and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3670-05.

Fred Shahrooz-Scampato, attorney for appellants.

Genova, Burns & Giantomasi, attorneys for respondents (Peter F. Berk, of counsel and on the brief).

PER CURIAM

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Plaintiff Bienvenido Montalvo appeals from the grant of summary judgment dismissing his complaint against defendants for alleged violations of the anti-retaliation provision of the Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49. At all relevant times, plaintiff was employed as a senior corrections officer by the Department of Corrections (DOC) at Northern State Prison (NSP). The named defendants occupied various positions of authority at the prison, specifically, Lydell Sherrer was the Administrator; Eric Stokes was an Assistant Superintendent; Vincent Sanders was Chief; Captain Richard Gilgallon, Lieutenant W.L. Mungro, Sergeant William Anderson, and Sergeant Darron Daye were all supervising officers at NSP. Plaintiff's complaint alleged a violation of the LAD based upon "national origin" (count one); violation of the LAD based upon a hostile work environment (count two); violation of the LAD based upon retaliation "because [he] made complaints in 2003 with the NSP EE Department and 2004 with the EEOC" (count three); violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (count four); bias crime in violation of N.J.S.A. 2A:53A-21 (count five); breach of the implied covenant of good faith and fair dealing (count six); intentional infliction of emotional distress (count seven); and defamation per se (count eight).
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Defendants' motion for summary judgment was granted as to all of plaintiff's claims except count one, i.e., "[p]laintiff's claim of LAD discrimination based on [his] ethnic background." After plaintiff's motion for reconsideration was denied, he entered into a consent order that dismissed the remaining claim with prejudice. On appeal before us, plaintiff challenges only the grant of summary judgment on count three, his LAD retaliation claim. He contends that the motion judge "[m]isapplied the [s]ummary [j]udgment [s]tandard [b]y [n]ot [p]roviding [him] [w]ith [a] [r]easonable [i]nference." We have considered this argument in light of the record and applicable legal standards. We reverse. When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Id. at 230. [A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder

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to resolve the alleged disputed issue in favor of the non-moving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide whether the "motion judge's application of the law was correct." Atl. Mut., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's legal conclusions. Ibid. We discern the following facts from the motion record when viewed in a light most favorable to plaintiff. In January 2003, plaintiff filed a written "Discrimination Complaint" with NSP's Assistant Superintendent Flordeliza Medel. He alleged he was "constantly under a microscopic watch of [his] supervisor." Plaintiff related various incidents, including one in which his "P.B.A. representative" told him to "watch [his] back because" Daye had "mentioned to an officer that he was out to get [plaintiff]." Medel apparently received plaintiff's complaint and forwarded it to Sherrer, who in turn forwarded it on the same day to the Director of DOC's Equal Employment Division (EED) in Trenton. There are no documents in the record that reveal what happened thereafter. However, in an affidavit plaintiff filed opposing defendants' summary judgment motion, he claimed that his complaint "did not go forward because EED said that [he] did not articulate a type of discrimination." In November 2003, plaintiff filed two written "Special Reports" to the "Director of Custody Operations" criticizing treatment he was receiving from his supervisor, a "Lt. Boyd." In his affidavit, plaintiff described a series of events that transpired in June 2004. He claimed that while he was assigned to duty in one of the guard towers, prison authorities orchestrated a "'sting'" operation in which Anderson went onto the roof of the facility to simulate an escape. Plaintiff claimed that he alone was disciplined for not seeing Anderson, and that the other three tower guards, all non-Hispanic, were not disciplined even though they too failed to report the "escape." Plaintiff claimed that Mungro "staged the . . . 'sting' operation . . . for the specific purpose of bringing disciplinary charges against [him]." Plaintiff also filed a written report dated August 5, 2004, in which he claimed that Daye called him and another officer, "fags." On September 30, plaintiff filed a report in which he claimed that a "Sgt. D'Amico" called him an "asshole" and told him "you have a big target on your back and they want to fire[] you."
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On October 5, 2004, plaintiff filed a complaint with the federal Equal Employment Opportunity Commission (the EEOC) in Newark. He alleged that he was being harassed and retaliated against by Daye, Anderson, and Mungro "because of [his] national origin (Hispanic/Puerto Rican)." The EEOC forwarded the "Notice of Charge of Discrimination" to DOC in Trenton on October 7. A copy of the EEOC's notice in the record bears a stamp reflecting that it was received by DOC's EED in October, although the exact date is not revealed. In his affidavit, plaintiff claimed that "in late October 2004, [he] overheard NSP administrative staff mention receiving [his] EEOC complaint." On October 28, 2004, Daye and Anderson informed D'Amico that two prisoners, Broadway and Randolph, refused to be locked in their cell. D'Amico assigned a number of officers, including plaintiff, to "extract" the two inmates. Officer Pena from Special Investigations escorted the extraction team and was armed with a video recorder. The team of officers used "a natural agent MK9 and sprayed both inmates," who were then subdued and "restrained with handcuffs and leg irons." Plaintiff claimed that he and another officer escorted Randolph to the shower after he was medically cleared. Anderson then relieved him from further duty. The next day, plaintiff was summoned to Sherrer's office. Gilgallon entered the office and told him that Daye and Anderson had witnessed plaintiff assault inmate Broadway in the shower while he was handcuffed. Plaintiff denied the accusation, noting that he had escorted the other inmate and had not assaulted anyone. Gilgallon ordered plaintiff to file a report of his activities from the day before. In his affidavit, plaintiff claimed that either Gilgallon or Associate Administrator Angel Santiago acknowledged on October 29 that "NSP had received a copy of [his] EEOC complaint against . . . Daye and . . . Anderson." Plaintiff further claimed that Gilgallon told him that he did not believe Daye or Anderson, that they "were the worst officers in th[e] prison," and that he "could not believe they would go to this extent to get an officer." On November 4, 2004, plaintiff was served with a notice of disciplinary action signed by Stokes, alleging that he assaulted inmate Randolph "by slamming his head against the shower wall." It further alleged that plaintiff was "relieved and instructed to write a report but failed to do so and instead left [the] grounds." Plaintiff was charged with "[c]onduct unbecoming" and "[o]ther [s]ufficient [c]auses"; he was suspended
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and notified that removal was a possible penalty. Plaintiff's affidavit describes in detail what transpired thereafter, including various statements that were made to him by fellow officers essentially indicating that he had been unjustly charged. On December 16, 2004, a hearing took place on plaintiff's disciplinary charges. In a subsequent memo to Sherrer, Gilgallon explained that he reviewed the videotape made of the incident and that it did not support Anderson's and Daye's version of the events. He also spoke to Pena's supervisor who noted that Pena claimed there was no evidence of an assault on either inmate. After conferring with Sherrer, Gilgallon dismissed the charges against plaintiff, noting "there was absolutely no evidence to support this officer being suspended." Plaintiff was restored to duty and reassigned; he also received back pay for the period of time lost during his suspension. In granting summary judgment on plaintiff's LAD retaliation claim, the judge focused on two issues: whether defendants knew of plaintiff's EEOC complaint; and, the lack of proof of "causation," i.e., the "causal link" between plaintiff's "protected activity" and defendants' "adverse employment decision." Noting "[t]he ability to make complaints to EEOC is clearly a protected activity," the judge asked rhetorically, "Was it known to the defendants?" He then reasoned: The argument is that since there was a sufficient period of time, but less than a month so that it wasn't forgotten from the time that notice was sent to the fact of when these acts took place would be temporal proximity. The difference is that there is no proof offered . . . as to who got the complaint, what they did with it, whether or not the people who allegedly discriminated against [plaintiff], meaning . . . Anderson and D[a]y[e], and . . . M[agro], . . . were ever told that an EEO complaint was filed.

Discovery has been done by both sides in this case, and the one thing that both sides seem to agree on is that yes, we told them, yes, we gave them a copy so that even at this stage of the case we're not at a point where there is anything to show that the activity was known to the defendants.

We don't even have what the normal process would be as far as a complaint being received and what the steps would be to give it to the individuals who are not the defendants in the EEO complaint. . . .

....

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[W]hether or not the [DOC] told the three individuals you're causing us problems, we got this complaint, there's absolutely nothing to get to that point.

The next question is whether [plaintiff] was thereafter subject to adverse employment discrimination by the defendants. He was subjected to charges being made and [an] investigation being done. Is there a causal link between the two? Not that anyone has shown me. . . .

The judge granted summary judgment on all but the first count of plaintiff's complaint. Plaintiff's subsequent motion for reconsideration was denied, and this appeal ensued. Plaintiff argues before us that the judge improperly evaluated the evidence in the motion record and denied him the benefit of all available favorable inferences. He contends that if the proper summary judgment standards are applied, he established a prima facie case of LAD retaliation. Defendants counter by arguing that the judge properly dismissed the retaliation claim because plaintiff failed to establish a prima facie case. They contend that plaintiff produced no evidence "that his protected activity was known to the alleged retaliators," that "[p]laintiff did not experience an adverse employment action," and that "[p]laintiff cannot establish a causal link between" the two. The anti-retaliation provision of the LAD provides that It shall be . . . unlawful discrimination:

....

For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint . . . or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, . . . any right granted or protected by this act.

[N.J.S.A. 10:5-12(d).]

This "essential aspect of the LAD" "'is broad and pervasive, and must be seen as necessarily designed to promote the integrity of the underlying anti-discrimination policies of the [LAD] by protecting against
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reprisals "any person" who has sought to protect his or her own rights not to be discriminated against . . . .'" Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 259 (2010) (quoting Craig v. Suburban Cablevision, Inc., 274 N.J. Super. 303, 310 (App. Div. 1994), aff'd, 140 N.J. 623 (1995)). "[T]raditionally, there are three elements to a plaintiff's prima facie case for retaliat[ion] [under the LAD] . . . ." Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 125 (2008) (citing Craig, supra, 140 N.J. at 629-30). "In particular . . . 'plaintiffs must demonstrate that: (1) they engaged in a protected activity known by the employer; (2) thereafter their employer unlawfully retaliated against them; and (3) their participation in the protected activity caused the retaliation.'" Ibid. (quoting Craig, supra, 140 N.J. at 629-30) (additional citations omitted). "[A] plaintiff must also bear the burden of proving that he or she had a good faith, reasonable basis for complaining about the workplace behavior." Ibid. (citing Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 373 (2007)). The motion judge accepted, and defendants do not contest, that plaintiff in this case engaged in a protected activity, i.e., complaining to the EEOC about alleged unlawful discrimination. Nor have defendants argued that plaintiff's complaint lacked a "good faith, reasonable basis." Defendants do contend, however, that there was no evidence "the alleged retaliators had knowledge of [plaintiff's] protected activity." As we have said, "[t]he first prong and '[t]he central element of a retaliatory discharge claim under LAD is that the plaintiff be engaged in a protected activity, which is known by the alleged retaliator.'" Young v. Hobart West Group, 385 N.J. Super. 448, 465-66 (App. Div. 2005) (quoting Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 560 (1990) (internal quotation marks omitted). There is no direct evidence that Anderson and Daye had knowledge of plaintiff's EEOC complaint. However, the following favorable evidence and inferences exist in the motion record. First, the notice of plaintiff's EEOC complaint was signed by the Newark area director on October 7, 2004. It was forwarded and received by DOC's Acting Director of EED thereafter. Plaintiff's earlier complaint in January 2003 was forwarded from Sherrer to the EED on the very same day it was made. Plaintiff, in his affidavit, alleges that on the day after the prisoner incident, Gilgallon or Angel Santiago acknowledged "that NSP had received a copy of [his] EEOC complaint." It is a reasonable inference that Sherrer, as administrator of NSP, was aware of plaintiff's complaint shortly after its receipt by EED and before the prisoner extraction incident.

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Plaintiff further claims in his affidavit that on the day after the incident, Gilgallon expressed skepticism of Daye's and Anderson's version of the events, and that after reviewing the reports of the officers involved in the extraction -- all of which denied any assault took place -- his union officials spoke to Sherrer. Plaintiff claims that Gilgallon returned to the union office and advised that "Sherrer fe[lt] that the sergeant[s'] statements [we]re true and c[oul]n't be ignored." Only "[i]f there exists a single, unavoidable resolution of the alleged disputed issue of fact," is "that issue . . . insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill, supra, 142 N.J. at 540. A disputed fact in this case is whether Daye, Anderson, or Sherrer -- who, it can be inferred, approved the filing of disciplinary charges based upon the reports of the two sergeants -- knew of plaintiff's complaint to the EEOC made on October 5, 2004, twenty-three days before the prisoner extraction incident. Based upon the record, defendants failed to demonstrate "a single, unavoidable resolution" of that issue. Defendants next argue that plaintiff did not suffer "an adverse employment action" because "retaliatory action does not encompass action taken to effectuate [plaintiff's] discharge, suspension or demotion . . . ." We view this argument to be of insufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following. Recently, the Court held that the LAD recognizes "a distinct cause of action for retaliatory conduct that need not be related to the workplace." Roa v. Roa, 200 N.J. 555, 574 (2010). The Roa court also adopted a standard to be applied "[i]n addressing the question of 'how harmful an act of retaliatory discrimination must be in order to fall within the'" provisions of the LAD. Id. at 575 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61, 126 S. Ct. 2405, 2411, 165 L. Ed.2d 345, 355 (2006)). Adopting the United States Supreme Court's analysis regarding alleged violations of Title VII, the Court concluded "'a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Ibid. (quoting Burlington, supra, 548 U.S. at 68, 126 S. Ct. at 2415, 165 L. Ed. 2d at 359 (internal quotation marks omitted)). We believe it clear that falsely accusing plaintiff of criminally assaulting an inmate, suspending him without pay and forcing him to defend himself against the charge is conduct that might "dissuade[] a reasonable worker from making or supporting a charge of discrimination." Defendants also contend that plaintiff "cannot establish a causal link between his protected activity and the

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alleged adverse employment action." We have said, "'the mere fact that [an] adverse employment action occurs after [the protected activity] will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two.'" Young, supra, 385 N.J. Super. at 467 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (in turn quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997))). "[C]ausal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive." Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 550 (App. Div. 1995). "[W]here the facts of the particular case are so unusually suggestive of retaliatory motive[,] . . . temporal proximity, on its own, [may] support an inference of causation." Young, supra, 385 N.J. Super. at 467 (quotation omitted). Here, the motion judge determined that while the disciplinary charges were lodged against plaintiff in temporal proximity to the filing of his EEOC complaint, that alone was insufficient to demonstrate a causal connection. However, there were other significant evidence and inferences that should have been considered in determining whether defendants had demonstrated an absence of a genuine material factual dispute so as to entitle them to summary judgment. Evidence of the relationship between plaintiff and Anderson, Daye, and other supervisors at NSP may be considered to establish a retaliatory motive even if those incidents were not, themselves, actionable. Roa, supra, 200 N.J. at 576. Plaintiff's affidavit set forth events that occurred in June 2004 and resulted in disciplinary charges against him. He alleged that Anderson and Mungro devised the "sting" operation specifically to bring those charges against him, and that other tower guards who also failed to see the staged escape were not disciplined. Additionally, plaintiff claimed that other officers told him before the October 28, 2004 prisoner extraction incident that he "had a target on [his] back" and they "want[ed] to fire [him]." For purposes of opposing summary judgment, plaintiff was entitled to have that evidence be considered to demonstrate the animosity and possible retaliatory motives that existed before the events of October 28, 2004. There was other evidence and available inferences to permit the conclusion that the "facts of th[is] particular case [we]re . . . unusually suggestive of retaliatory motive." Young, supra, 385 N.J. Super. at 467 (quotation omitted). Plaintiff alleged that from the inception of the investigation that led to his suspension

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and disciplinary charges filed against him, Gilgallon expressed skepticism of Anderson's and Daye's claims of the assault. On the day after the incident, plaintiff reviewed the reports of other officers involved in the prisoner extraction, all of whom, he claims, indicated there was no assault. These reports were presumably seen by the NJP administrative staff, and plaintiff claimed his union representatives and Gilgallon spoke to Sherrer before any charges were lodged. In other words, giving the plaintiff the benefit of all favorable inferences, a reasonable factfinder could conclude that despite having accounts from Anderson and Daye that were contradicted by others directly involved, and knowing that the incident was videotaped, NSP's administrative staff decided to bring disciplinary charges against plaintiff in close temporal proximity to his EEOC complaint. Ultimately, those charges were deemed to be baseless and without any evidential support. In sum, we think that for purposes of summary judgment, plaintiff had raised a genuine material factual dispute about whether the retaliatory conduct was causally related to his LAD-protected activity. Reversed.

1 Plaintiff's wife, Ileanexis, asserted a per quod claim in count nine of the complaint which was apparently dismissed as part of the grant of summary judgment. The propriety of that dismissal is not raised on appeal. 2 The appellate record is quite limited. Although depositions were apparently taken by both sides, the appendices do not contain any transcripts from them.

3 It is unclear from the record who was plaintiff's supervisor at the time. 4 We gather from plaintiff's brief that Daye and Anderson are African-American, as were some of the other officers who were not disciplined.

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